Strengthening Canada's Immigration System and Borders Bill

Honourable senators, there has been a lot of debate and speaking from this corner of the chamber. I’m not competing with my colleagues to have more airtime. In fact, I’m pleased to tell you that this will be my last intervention. Do I get a “alleluia”? Maybe I will get an “amen” as well at the end of the presentation.

I am speaking to support and defend an amendment that I will be proposing at the end of my speech. This amendment would require mandatory oral hearings within the pre-removal risk assessment, or PRRA, process for individuals who are captured by the new ineligibility provisions in Bill C-12.

It is unfortunate that our colleague Senator Coyle’s amendment was not approved. As a result, this amendment provides kind of the last protection, if I can put it that way, a modest safeguard to what could have been many other kinds of changes we might have proposed. I hope you will give it due consideration.

To stress again, the amendment does not remove the new ineligibility provisions contained in the bill. It also does not reopen access to the Immigration and Refugee Board, or IRB, for these claimants, and it does not alter the government’s broader policy objectives in this legislation. It simply ensures that when a person is diverted to the PRRA process, they are guaranteed an opportunity to appear before a decision maker through an oral hearing before a final decision is made.

This amendment introduces a very basic standard, a best-practice procedural safeguard, one that has been requested by virtually every organization that testified at the Social Affairs Committee, including refugee and human rights organizations, civil liberties and legal advocacy organizations, academic and legal research centres, community and settlement organizations and, not least, the United Nations High Commissioner for Refugees, or UNHCR.

Safeguards matter because refugee protection decisions often depend heavily on credibility and personal testimony. In many cases, the key evidence is the claimant’s own account of persecution or fear of return. Written submissions alone are often insufficient to properly assess trauma, context and credibility. An oral hearing allows decision makers to ask questions, clarify inconsistencies and assess the evidence directly. Without that opportunity, the risk of error increases.

The government has argued that the PRRA is an adequate alternative to a refugee hearing because it applies similar protection criteria, but many witnesses reminded the committee that the PRRA is not equivalent to a refugee determination hearing before the IRB.

Now, we did not receive an assessment from the government on the efficiency and effectiveness of the so-called file review process, which has been in place since 2019. The good news, colleagues, is that the C.D. Howe Institute did a study on the efficiency and effectiveness of this policy. This is a policy that is paper-based, one which may exempt entire categories of claims from the default requirement of an in-person adjudication, also known as oral hearings.

I believe our colleague Senator Simons will be telling you more about the C.D. Howe study, so let me jump to the conclusion, which is that they found no efficiency gains from the file review process. They found no effectiveness gains. The backlog was not reduced. The recommendation of the C.D. Howe? They state:

. . . the report argues that the File Review policy should be brought to an end and the default requirement of questioning asylum claimants at a hearing should be restored.

There is another set of arguments for restoring oral hearings, and it has to do with the constitutionality of oral hearings for refugee claimants. Many of you have already heard that the Singh case established the IRB, to start with. We had this discussion with Senator Harder yesterday. While one couldn’t say that the PRRA may well be constitutional, we heard from many experts, including the David Asper Centre for Constitutional Rights, that where a court concluded deportation could expose someone to serious harm, the principles of fundamental justice require a meaningful hearing process before a protection decision is made.

The Refugee Law Lab noted that the court also emphasized that administrative convenience cannot justify violating fundamental justice. Ensuring access to an oral hearing within the PRRA process, therefore, helps bring this legislation closer in line with those constitutional principles.

I mentioned earlier that the UN High Commissioner for Refugees has also weighed in on our bill. They have reminded us of the best practices that they’ve identified, drawing, actually, from Canadian practice. I’m quoting from a procedural standards document dated August 2020:

All applicants undergoing individual RSD —

— refugee status determination —

— procedures must have the opportunity to present their claims in person . . . with a qualified Eligibility Officer. As a general rule, a refugee status claim should not be determined in the first instance on the basis of a paper review alone.

A separate document from the UNHCR dated March 2020 states:

The right to be heard with due process guarantees and within a reasonable time in a personal interview or otherwise is a core procedural standard. As a general rule, the right to be heard requires that an applicant should have the opportunity to present their claim in person, and a refugee status claim should not be determined in the first instance based on a paper review alone. . . .

The UNHCR has said that this guidance is based on experience in over 134 countries globally and that multiple courts in Canada have upheld this standard.

If I can be even more direct, what the UNHCR has said to us, all senators, is as follows:

Senators, if there is one amendment you consider, this would be the one that UNHCR believes will be the most consequential and that will ensure minimum international standards are met.

There is yet another argument for this amendment. It is as institutional and as supportive and loyal to a framework perspective of legislation as one can get. When this exact same issue came before Parliament in 2019, Parliament reintroduced oral hearings into a bill that had taken them away.

In 2019, when Parliament introduced new refugee ineligibility provisions in the budget implementation act, MPs proposed and insisted that those ineligibility hearings should not be without the opportunity for oral hearings. In that case, the new ineligibility criteria had to do with asylum seekers who had already made a refugee claim in another country with which Canada shares biometric and immigration information, primarily the Five Eyes partners. Some of you will remember this debate from a few years ago.

Indeed, colleagues, the House of Commons Standing Committee on Citizenship and Immigration at that time studied the issue and recommended that Parliament guarantee a right to oral pre-removal risk assessment, or PRRA, hearings for asylum seekers affected by the new ineligibility provisions. This is taken from the House of Commons Standing Committee on Citizenship and Immigration report. The Liberal government obviously accepted their recommendation, which is the exact same recommendation that we’re making today.

In other words, colleagues, this amendment does not introduce a new concept. It does not overturn the purpose of the bill. It does not remove the new ineligibilities that one can be upset about, but rather it simply applies the same safeguard that Parliament adopted in 2019 in the budget implementation act at that time.

Honourable senators, to reiterate, this amendment does not undermine the policy intent of the bill. It is, in many ways, the last safeguard that we, as the chamber of sober second thought, can inject into a bill that many have said is deeply flawed. None of the amendments that have been proposed until now have tried to be draconian. This one is, in some ways, the least draconian. It has been recommended by experts across the board. It conforms to constitutionality — indeed, the constitutionality that has been argued at the Supreme Court. It is consistent with the previous practice of this chamber and the other place, and, above all, it is consistent with the best practices of refugee protection.

Thank you.