CIMM Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, December 2, 1999

• 0905

[English]

The Vice-Chair (Mr. Steve Mahoney (Mississauga West, Lib.)): I'd like to call to order the meeting of the Standing Committee on Citizenship and Immigration and to welcome our guests.

We have Mr. David Matas, past chair of the National Citizenship and Immigration Law Section of the Canadian Bar Association, and Betsy Kane, executive member of the National Citizenship and Immigration Law Section as well. From the Association québécoise des avocats et avocates en droit de l'immigration, we have Monsieur Jean-François Fiset and Madame Pia Zambelli. Welcome to all of you.

There will be members coming. It's a busy morning in committees. I see more coming. This is all being recorded, of course. We appreciate you all taking the time to come and speak to our committee as we study the refugee system and illegal migrants.

We're going to have to stay fairly close to schedule this morning because there's another committee coming in right at 11 o'clock, and it's being televised, so they're on a tight schedule. I'm going to have to ask everyone to stay to their times. We've allowed ten minutes for presentations by the deputants and then questions and answers by committee members.

I believe we'll begin with Mr. Matas. Welcome.

Mr. David Matas (Past Chair, National Citizenship and Immigration Law Section, Canadian Bar Association): Thank you very much.

In terms of your terms of reference, I thought what I'd do is try to address the first two, speeding up and deterring, and just say something very briefly about hastening removals.

In terms of speeding up the determination process, there are a few suggestions we have to make. One is to transfer the eligibility stage to the full hearing so that it wouldn't be a separate step the way it is now. One can talk about the criteria and whether they should be changed, added, or shortened, and I'll say a word about them. But there's no need for it to be a separate step, as it is now.

The second proposal we would make is that the post-determination stage, which is a risk review on criteria unrelated to refugee determination but related to risk, would also be consolidated with the refugee determination. I understand that is the government's proposal right now. So instead of three steps we would have just the one step, and that would obviously save money and time.

I would caution the committee against recommending any preliminary step of the sort we have now, or an expanded preliminary step, that would deny access to a full hearing to some people. I point out that we did have such a preliminary step from 1989 to 1993, the credible basis stage, and it turned out to be a fantastic waste of time and money.

Of course one hears in the media about cases of abuse, but statistically those numbers are very small. A preliminary step of the sort we had before meant putting huge numbers of people through a stage they just passed through and then went on to the next stage, which is of course true of the eligibility stage now. We end up spending a lot of time and money to just weed out a few people, who could be weeded out anyway at just a one-stage hearing.

I also point out the inappropriateness of some of the access criteria right now. It is important, and it is part of our international obligation, to allow access to refugee determination. By virtue of the refugee convention, we can't simply turn away somebody who is making a refugee claim without hearing their claim.

There are some problems with the current access system. The first problem is that once you've had a removal order, you cannot make a claim. We've recently seen the problems that has caused with some of the Fujian migrants who had removal orders made against them in error. The government had to agree to go to court to get those orders removed. It would be simpler if that denial of access criterion were not there.

• 0910

We have a provision in the legislation that allows for denial of access based on safe third country. It's a dead letter because no country is designated as safe. There are lots of problems of principle with that criterion, which is why it's a dead letter. Again, it shouldn't be there.

There is the problem of criminality, the public danger opinion, which also can cut off access. Again, the government has accepted that this is problematic and is proposing removing the public danger criterion but replacing it with some sort of stricter criminality criterion.

The concern we have is that historically when the Immigration Act has used strict criminality criteria, it's looked at maximum sentences and the seriousness of the label of the offence rather than the seriousness of the act itself. Some people may get no time in jail at all but have committed an offence with a high category or with a high maximum penalty. It sounds serious in terms of the way it's described generally, even though what was actually done may not be that serious. Then you'd have a denial of access, which could be problematic.

In terms of priority of processing, which the committee wants to look at, there is certainly room for that, more room than there is now. One of the concerns we have is that when it comes to war criminals, crimes against humanity, which obviously are of some concern, there is no specific priority processing for those cases. For instance, there are a few cases going through the system now where there are serious allegations of war criminality, and they're taking their time.

In terms of the second issue before the committee, deterring future arrival of illegal immigrants, I'd like to point out the very inappropriateness of this as an objective. The Canadian immigration system should not be deterring future arrivals. The Universal Declaration of Human Rights talks about the right to seek and enjoy asylum, and that right should not be frustrated. The Universal Declaration of Human Rights talks about the right to leave any country, including one's own, and that right also should not be frustrated.

The right to leave as well as the right to seek protection are found in international instruments by which Canada is bound: the refugee convention and the International Covenant on Civil and Political Rights. The criteria that are used to stop people are also inappropriate. It is simply lack of documentation, which is a very unsophisticated criterion that doesn't differentiate between people seeking protection and people not in need of protection.

It is important to use the immigration system and the refugee determination system for their purpose, which is to determine whether or not people are refugees and whether people should migrate or not migrate. It should not be used for criminality purposes. In order to deter criminality, one has to use the criminal justice system and not the immigration system. An attempt to use the immigration system as a deterrent is just going to distort that system and violate international standards.

The same is true of detention as a deterrent. There's some concern that the question asked in the terms of reference is when it works and when it does not. The question should be whether we should have detention as deterrent. The answer should be that we should not have detention as deterrent because it is a violation of the refugee convention to detain as a deterrent. It's in article 31, it's in the conclusions of the executive committee of the United Nations High Commissioner for Refugees.

When we're dealing with the refugee determination system, we're obviously dealing with Canada in the international arena. It's important when we're dealing in this context that we keep an eye on our international standards and obligations, the fundamental human rights of all humanity. It reflects not only on these people but on Canada in the international arena as a whole. If we violate standards here, it will reflect on us wherever we are arguing standards, not only in this area but elsewhere as well.

In order to maintain our credibility internationally generally, we have to maintain our credibility internationally here. That means not interdicting people simply because they're trying to get here to seek protection. It means not detaining people as a deterrent. It means allowing access to a refugee determination system.

• 0915

That's what I'll say by way of an introductory statement.

The Vice-Chair (Mr. Steve Mahoney): Does Ms. Kane wish to add anything to that?

Ms. Betsy R. Kane (Executive Member, National Citizenship and Immigration Law Section, Canadian Bar Association): I would just like to add that the minister has expressed the importance of maintaining the integrity of the refugee determination system.

Regarding the appointment and the training and the numbers of the Immigration and Refugee Board members who are deciding these cases, I believe the integrity must be restored to their appointment process and that the qualifications for appointment on the board must be central to maintaining the integrity of the system.

Canada is an international leader in the area of refugee determination. However, one of the areas that is lacking is the fact that many of the appointments are political appointments. I would like to state that the minister's recent appointment of Peter Showler as the chair of the Immigration and Refugee Board is a great step in the direction of appointment based on merit. I believe that appointment will enable the future appointment and increased and better-quality training of board members.

I believe the quality of members only goes to enhance the integrity of our system, and it is the central basis from which our international reputation in the area of refugee protection stems. I think this a critical area to be addressed in the upcoming changes to the Immigration and Refugee Board law, procedure, and practices.

The Vice-Chair (Mr. Steve Mahoney): Thank you.

On that note, we just actually received the order in council today confirming all of that. Actually it was last week, but the clerk just told me today.

We're now going to either Mr. Fiset or Madam Zambelli. I'll leave it to you as to who wants to lead off. And if you could stay close to that ten-minute mark we'd appreciate it.

Mr. Jean-François Fiset (President, Association québécoise des avocats et avocates en droit de l'immigration): Okay, we'll try hard to do that.

A few words about us. AQAADI is the immigration lawyers' association that regroups about 150 lawyers in Quebec, people who practise in all fields, including refugees, independent immigration, business-class immigration. We are distinct and separate from the Canadian Bar Association. I'm the president of that association. I've been for the past three years vice-president for refugee affairs.

Madam Pia Zambelli is a graduate of Osgoode Hall, 1986. She's an experienced immigration lawyer. She wrote two books on refugees, in fact. One, which most people use and refer to, is The 1995 Annotated Refugee Convention, published in 1995, and the other published by Carswell more recently is The Refugee Convention: A Compendium of Canadian and American Cases. She was a board member for five years, so I think she's a very well placed person to talk to us about the appointment and renewal of board members. I'll turn the floor over to her.

Ms. Pia Zambelli (Member of the Board, Association québécoise des avocats et avocates en droit de l'immigration): Thank you.

I'll just keep my comments brief. I understand you might have some questions after.

I agree wholeheartedly with Ms. Kane's submission on behalf of the Canadian Bar Association concerning the issue of appointment of members. I think this committee is concerned with efficiency and speed and getting people in, getting them processed, and having them either landed or removed. The most efficient way to do that is to ensure that they have a proper hearing, that there are proper decision-makers. This would eliminate the need for the endless post-claim reviews, humanitarian reviews, and the concomitant Federal Court applications and stay of removal orders that go along with that. There's been a great deal of resistance from.... I think this idea of having non-patronage appointees at the Immigration and Refugee Board has been around for at least 15 years, and it hasn't happened.

In the decisions that are being made by the Immigration and Refugee Board currently there's definitely something lacking, and it's because the members do not have proper background and proper training. In essence, there's a great deal of waste because there are new members coming in, they have to be retrained, there are decisions during the period when they're sort of a novice or not as good as they could be, and there's a great deal of waste of time and money.

• 0920

I think this would be the simplest solution for achieving a fair and efficient refugee determination process. I think you're going to hear that from almost everybody you see.

If that does not happen then I think we have to address the issue of the safety net. There should be a safety net for people who are wrongly rejected by the Immigration and Refugee Board. Presently I find it's not sufficient. In the PDRCC process the acceptance rate is almost zero. In the humanitarian process very few people are getting accepted.

I think the solution would be to give the Immigration and Refugee Board humanitarian jurisdiction so that some of the issues regarding both the convention and other protection issues, such as risk of return based on factors that are not enumerated in the convention, or other factors, humanitarian factors in general, could be adjudicated properly before one well-trained panel. This would save a great deal of time, effort, and litigation, because there is a considerable amount of litigation that arises out of having all the different steps and none of them done properly and fairly. You have litigation after the person is refused refugee status, PDRCC, you can litigate that, humanitarian....

If the decision in the first place were fair, if people felt they were fairly treated, if the board were more of an expert tribunal with appointments based on merit, I think the decisions would be a great deal better. The process would be much, much more efficient and less onerous with all these what we call back-end applications to the Federal Court. I think that is the simplest process. That is the simplest solution to the problem.

The Vice-Chair (Mr. Steve Mahoney): Okay. Do you have anything to add?

Ms. Pia Zambelli: The other thing I might suggest also is an internal review unit of the Immigration and Refugee Board, which had been discussed a couple of years ago. That might be another way to enhance the safety net factor. If we're going to keep the patronage appointees, the safety net should be enhanced a great deal.

The Vice-Chair (Mr. Steve Mahoney): Okay, thank you very much.

We'll go to questions now. We have a ten-minute round, and our first questioner is Mr. Anders.

Mr. Rob Anders (Calgary West, Ref.): Thank you very much, Mr. Chairman.

Is it Miss Zambelli?

Ms. Pia Zambelli: Yes.

Mr. Rob Anders: It works for you, okay.

You talked about the safety net for people who were rejected needing to be improved. Could you elaborate on that a little more? Could you be a little more specific?

Ms. Pia Zambelli: Okay. Currently if someone is refused refugee status they do have the right to seek a post-determination review, which is done by the Department of Immigration. This would review their risk of return to their country of origin on the grounds that they might face inhumane treatment or extreme sanction. This is a good idea, but in practice it's not functioning. The acceptance rate is maybe 5%. I don't know if I've ever heard of a case; it's very, very low. I would suggest putting that type of review in the hands of a well-qualified and well-trained refugee tribunal.

They look at things such as a case where somebody doesn't meet the definition because they're being sought after by say the drug cartels in Colombia. Okay, that doesn't really meet the refugee definition, but the person might still be at risk if they return, at serious risk. I think the process for looking at those kinds of protection issues should be put in the hands of a tribunal such as the Immigration and Refugee Board, with proper appointments, of course.

The Vice-Chair (Mr. Steve Mahoney): Mr. Matas wants to respond.

• 0925

Mr. David Matas: Thank you.

Obviously this is a very serious issue, because there are problems right now of people who make a refugee claim and are refused in error, either because there's a mistake or there's a change in circumstance, or because the refugee definition is too narrow.

Right now there are five different mechanisms to deal with this, but none of them are adequate. One of them is humanitarian compassionate, but you're dealing with immigration officials who are not knowledgeable or expert in risk determination. There's the post-determination, which is also problematic for the same reason. Some people will go to the United States for 90 days and then come back and try again, but that obviously has problems. There are people going to the minister's office, but the minister's office can get overwhelmed. Then there's the Federal Court, but that's problematic because it deals just with legal issues and not with factual issues.

Indeed, there's some suggestion to remove or replace some of these. Of course the Federal Court would always be there, but there's some suggestion of removing or replacing all the others.

What we would need to catch these errors or change the circumstances or to broaden the net is either an internal appeal within the system on questions of fact, which is certainly helpful, or in addition the possibility of reopening a decision once it's been made. Right now in the appeal division you can apply to reopen a decision once it is made, but in the refugee division you cannot. So there's an anomaly.

In the reopening jurisdiction the appeal division works very well. It's a problem of denial of access right now, that once you're refused you can't get access again unless you leave and come back after 90 days.

So we need to replace all these mechanisms that are now being used as a safety net, and not working very effectively, by something that works effectively as a safety net.

Mr. Rob Anders: My second question has to do with the appointment process and the patronage aspects. I know I have gone after and made comments on some of the people who have received appointments. As far as I could tell, they didn't have much in terms of a background for being there. Anyhow, turning to you, since you suggested that there should be people who have a greater skill and knowledge of these things, if you had your ideal determination process for selecting people for the board, how would you choose them?

The Vice-Chair (Mr. Steve Mahoney): Who are you asking?

Mr. Rob Anders: I'll let anybody who has criteria they want to cough up respond.

The Vice-Chair (Mr. Steve Mahoney): I think Ms. Kane wanted to start, and then we'll go to Ms. Zambelli.

Ms. Betsy Kane: I think there are going to be no ideal criteria. We're all human and I think there will always be mistakes made. But I think the critical criteria are training in refugee protection and training in the convention and international instruments with regard to the treatment of refugees. The appointments could come from the NGO community, the refugee bar. They could come through other organizations that are involved with the protection and settlement of refugees and immigrants, people who have experience on other administrative tribunals who are experts in quality and efficiency of decision-making.

There are a whole host of avenues from which to draw qualified applicants. The most important and fundamental thing—to support what Ms. Zambelli said—is that the decision is fair and seen to be fair. If you have someone with an extensive background and training in refugee law and refugee protection, even if the decision is negative the individual will feel that they had a fair hearing. And the lawyer, if a lawyer or an NGO is representing them, can say to them, “You had a full and fair hearing. Therefore I am not going to exhaust avenues of appeal and judicial review, because you got a fair hearing and no judge in the Federal Court or no senior immigration officer is going to look at your case with sympathy, knowing that the decision-maker on your case is a very well-respected individual within the legal or the refugee community.” And that is central to the integrity of the system.

Also, to extend that, Ms. Zambelli said that it's important to expand the jurisdiction of the IRB to enable them to have a humanitarian or compassionate jurisdiction in cases that fall outside of the definition of a person who is in fact—

Mr. Rob Anders: I want everybody to get their chance. I have a couple of things from you, which are more training, selection from the NGO community, or other people with administrative or tribunal backgrounds. What else do people have to kick in?

• 0930

The Vice-Chair (Mr. Steve Mahoney): Ms. Zambelli, do you wish to speak?

Ms. Pia Zambelli: I feel that there should be a much greater percentage of members who are lawyers or have legal training. The reason I say that is from my experience on the board, the decisions that have to be made and the complexity.... I had no idea before I went there how complex the decisions are. You have to assess the credibility of somebody from a different culture, bearing in mind all the Federal Court jurisprudence.

I once went into legal services with a question or a comment about a case I was working on and the legal adviser turned to me and said, “I don't know how you people can make these difficult decisions every day; I don't know how you do it.”

It's very complex, and there are procedural issues that come up. I think a greater percentage should have to be lawyers or have legal training.

Again, I concur with Ms. Kane, sources would be the Immigration and Refugee Board, the Department of Justice, the NGOs, academia, law schools, and of course members from other tribunals.

The Vice-Chair (Mr. Steve Mahoney): You have two minutes left, Mr. Anders.

Mr. Rob Anders: I think you can recognize that there's not a great love in the land for lawyers or the legal profession, in that we already have a lot of them in politics. Is there any other recommendation, anything politically saleable?

Ms. Pia Zambelli: All I can say is the types of decisions that are being made are.... It's a quasi-judicial tribunal, so let's get the appointment process more in line with judicial appointments, given the consequences to the individual.

Mr. Rob Anders: Is there any word from Mr. Fiset or Mr. Matas?

Mr. Jean-François Fiset: On this issue I think it also links up with the presence of consultants in front of the IRB. Maybe people can think we're ironic about this, but when you go in front of a criminal tribunal, even for a small offence like drunk driving, you're going to get a lawyer, you're not going to get your brother-in-law to represent you. Yet on matters of life and death anyone can say they're a consultant, open an office, and charge fees. Many of them have no legal training whatsoever; they represent people in front of a tribunal on questions of law, on questions of objections, and their training is deficient. The fact of tolerating the presence of consultants who are not lawyers, but act and sometimes pretend to be lawyers....

I've seen cards where it says “lawyer”, and in brackets there is a country, another country, so they had training in that other country. Or there is representation that used the word “counsel”, conseil in French. Counsel is misleading. A counsel is a lawyer in English. So tolerating these people in front of the IRB is an invitation for abuse, because the fact of letting them do these acts, which are reserved acts by any bar association....

I think the law has to be amended so that consultants are not allowed to practise in front of the three sections of the IRB. The fact is they mislead the client, they give them fake stories, and sometimes the real story never surfaces. It tarnishes the whole system.

Most of the time these consultants interfere with the work of the judges, of the board members. I think that's part of it too. If you have non-lawyers sitting there and tolerating non-lawyers doing lawyers' work, that calls for big problems.

The Vice-Chair (Mr. Steve Mahoney): I think we get your point there.

We're going to go to Mr. Telegdi for ten minutes.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Thank you very much, Mr. Chair.

We were having hearings yesterday, and we had two former ambassadors giving evidence. I was thinking it would be nice to have you guys debate each other, because you're coming from different ends of the spectrum.

One of them was Mr. Bauer. I'm sure you're probably familiar with him. He's going to be publishing a book, and he also served on an IRB board. Basically, one of the things he said was he warned the committee about the immigration industry. And of course he classifies lawyers in that category.

• 0935

When I look at the debate we've been having, it has almost been a focus of how to tighten things up and how to process people quicker. I think we've spent little time in terms of the determination system itself in making sure that the quality of the decision-making coming out of the board is as good as it could be.

One of the concerns I have when I follow a case—and you can read some horror stories in terms of cases—is that once you get turned down by the board member, it's very difficult to get a judicial review. I think it's about 1%. Americans are around 30%.

It seems to me that decision, particularly if it questions credibility, follows you right through the system. To the extent that a risk assessment was a right prior to being deported, now you have to apply within two or three weeks of being turned down by the Federal Court. I've seen cases where I believe they were affected by the decision. They weren't independent of what the adjudicator put out but relied very much on what was said by the adjudicator. The worst example I had was that in refusing a refugee claim a board member stated he did not believe there was collusion among the media, the police, and the government in the former Yugoslavia. Those kinds of statements, because it's plain there very much is, because we're talking about a totalitarian regime—

The Vice-Chair (Mr. Steve Mahoney): I'm sure there's a question coming.

Mr. Andrew Telegdi: Mr. Chairman, I would appreciate it if you would not interfere with my time.

The Vice-Chair (Mr. Steve Mahoney): I won't interfere, and I'll extend your time—

Mr. Andrew Telegdi: I am leading to a question—

The Vice-Chair (Mr. Steve Mahoney): —but we have witnesses who have come a long way—

Mr. Andrew Telegdi: That's right, and I'm framing the question—

The Vice-Chair (Mr. Steve Mahoney): —so would you please ask them a question.

Mr. Andrew Telegdi: I'm framing the question. If you don't mind, I would appreciate some time.

The Vice-Chair (Mr. Steve Mahoney): Carry on.

Mr. Andrew Telegdi: Thank you very much.

In terms of the quality of the decisions coming out of the board, my concern is how we can improve that.

The Vice-Chair (Mr. Steve Mahoney): Who are you asking?

Mr. Andrew Telegdi: I will leave it to the people who want to respond.

The Vice-Chair (Mr. Steve Mahoney): Mr. Matas, do you want to start?

Mr. David Matas: I'd like to comment on some of your observations you made along the way, if I may, as well as just directly answer your questions. I wasn't here when Mr. Bauer testified, but I'm familiar with his point of view.

First of all, I would criticize the very denunciation of an immigration industry. After all, what we're talking about is a fundamental human right of freedom of movement, which is indeed in our charter. Heaping scorn on people who are trying to help those people get protection or to immigrate is like heaping scorn on people who are trying to protect freedom of the press or the right to form unions. It's simply inappropriate.

Also, I would reject the need to tighten things up. In fact, things are already too tight. Year after year we don't meet our targets. The Conservative government under Mr. Mulroney at one point had the target that 25% of our admissions would be refugees, but we could never meet that target. The numbers spiralled down, and now we're at about 10%. If we just keep on tightening and tightening, we'll get to the point where we were during the Mackenzie King years, where we have nobody at all. We will suffer from it. So I think that is completely the wrong focus.

When it comes to errors in the refugee determination system, which I think is what we were talking about before, first of all, we need a better-quality appointments process. I didn't say something in answer to the previous question, but I think there are at least two things we can do to increase the quality of appointments. One is to increase security of tenure. Appointments are very short. They can be as short as two years. If somebody is there for just two years and then they're removed, they go through a training process, and then their experience is lost. We need a greater security of tenure.

• 0940

Secondly, we need a wider advisory committee. There is an advisory committee now, but it isn't as broad as the advisory committee that advises on appointments to the bench, and it isn't drawn from as many different sectors of the community. I believe that would be helpful in improving the quality of appointments.

But the reality is that no matter how well qualified people are, as Betsy Kane has said, to err is human. We are going to have mistakes, and we need some kind of error correction mechanism. All these various mechanisms we have now don't really fit that bill. We're going to have to figure out some way of correcting mistakes that is more effective in dealing with this problem in the systems we have now, which is something I referred to earlier.

The Vice-Chair (Mr. Steve Mahoney): Ms. Kane, do you wish to add to that?

Ms. Betsy Kane: I was trying to highlight the point Ms. Zambelli had earlier touched on, which is expanding the jurisdiction of the IRB to include the humanitarian and compassionate jurisdiction. We talked about expanding the net for which the IRB can make decisions. Many times you'll see not only bad decisions, which are reviewable or questionable, but also decisions that fall outside the definition of convention refugee.

Oftentimes in negative decisions you'll see the board members writing in the decision that they see there are humanitarian and compassionate factors in the case. Because this is outside our jurisdiction, we encourage the claimant to seek the assistance of the minister under this category. They're basically saying “We can't help you. We don't have the jurisdiction. But please, claimant, go to the minister and make an application on humanitarian and compassionate grounds. Our hands are tied. But because we're putting in the decision that we think you have humanitarian and compassionate grounds, we think the minister will look favourably on our written reasons.” There you see the board grappling with the fact that they have a lack of jurisdiction. Maybe this could catch some of the cases that are troublesome for the IRB in terms of not fitting the definition of convention refugee.

It doesn't necessarily address the issue of credibility, but it does open up an opportunity for the board to give a positive decision where the circumstances merit. A great example is the Maersk Dubai situation, which we saw in Halifax a number of years ago, where those Filipino gentlemen, I believe, had witnessed the situation on ship of some people being thrown overboard. They sought refugee status and they were turned down. Obviously it was a humanitarian and compassionate situation. Then the minister entertained an application for H and C, as we call it, humanitarian and compassionate grounds, and eventually they were landed under that category. I just wanted to give you a concrete example, which we're all aware of, where the refugee system didn't catch these people.

The Vice-Chair (Mr. Steve Mahoney): Mr. Fiset, Ms. Zambelli, either one.

Ms. Pia Zambelli: As I said, I think the solution is to improve the appointment process. If that can't be done, if patronage is part of our system in this regard, an internal review unit of the board composed of somebody with some of the ideal qualifications to catch those errors might be workable. I know it has been difficult to get rid of the patronage. It hasn't happened for 15 years. This type of solution might make for a better balance. As I think everyone is saying, the current safety nets for incorrect decisions are not functioning right now.

The Vice-Chair (Mr. Steve Mahoney): I think we'll go to our next round of questioners, five minutes for Mr. Bigras.

[Translation]

Mr. Bernard Bigras (Rosemont, BQ): Mr. Chairman, I won't elaborate on the appointment process for members as my colleagues spoke at length about it and you addressed the issue. You were talking about patronage. Of course, it is clear that some candidates have a profile that does not meet the requirements of the job. The auditor general went into great detail about this in 1997.

One of the elements proposed by the auditor was the establishment of a training plan for Board members. You reminded us that two years might not be enough to acquire the knowledge, the experience and the expertise required for a proper review of cases.

• 0945

I would like to know your views on the establishment of a training program aimed at Board members. What do you think such a program should include? Mr. Fiset, maybe you could answer my question.

Mr. Jean-François Fiset: Thank you. We are given the chance to speak French in Ottawa, which is always nice.

Regarding the training program, I would say that it is very difficult to give someone on-the-job training. We cannot train a legal officer in two days, nor in two weeks. People must make credibility assessments without knowing the criteria and having the required experience. How will you be able to teach them how to assess credibility using the Federal Court case law? If ever they find the time to read or understand it.

We have been practicing for ten or fifteen years and we must read the decision up to thirty times before really knowing what it says. We debate it in front of the Federal Court. I think that my colleague David Matas and Ms. Zambelli plead before the Federal Court. There are grey areas. We are lawyers by training. It is our specialty.

How could we appoint people, give them a mere three weeks of training and ask them to sit on credibility cases, on the situation of some countries, etc.? This is an aberration. Right now, between 10 and 15% of Board members have legal training. This is the first problem.

The second one is that right now the system sometimes misfires. We are refusing victims of torture. Recently I had to deal with the case of a woman from Congo Brazzaville who had been raped repeatedly by soldiers and tortured. When she appeared before the court, she had memory blanks about the scenes she had witnessed. She was declared not credible and refused.

The same happened in the Federal Court. It took a year and a half—and we were very lucky to succeed, which I learned less than three days ago—before it was realized that a mistake had been made and she was granted a motion on compassionate grounds.

At the moment, the system lets down rape victims, people who were seriously hurt. The woman I was talking about was even pregnant when raped. It seems to me that this was quite an obvious and blatant case. However, people did not have the necessary training to realize it. It is a bit like going back to square one.

Incidentally, some of the members appointed to the Board have no open-mindedness whatsoever towards refugees. What is the result? The result is a refusal rate of 100 or 98%.

I will give you an example. I sometimes plead in Toronto and I don't always plead bad cases. I went there fifteen times to deal with cases from India. Some of the victims had been tortured. The cases were well documented. None of those 10 to 15 cases was accepted. You can see that there is a problem. Had the same case been presented in Montreal it would have been accepted on the bench. There are regionalisms which are unexplainable.

It is a bit like a lottery. Sometimes Board members closed-mindedness can be attributed to the fact that they must not accept too many refugees if they want their term renewed; therefore, they could not care less about evidence.

I had to plead a case before a Board member who cried when I gave my arguments. I told myself that it was a positive sign. However I received a negative decision in the mail. At that stage, one becomes schizophrenic.

[English]

The Vice-Chair (Mr. Steve Mahoney): You can get one quick response.

[Translation]

Mr. Bernard Bigras: Yes, on another matter.

You just explained that there is actually a problem with the system. Some of you spoke about unfair decisions and others about internal mechanisms in need of review. Have you thought about proposing at one time or another the establishment of a complaints commissioner who would be in charge of receiving and processing complaints and making enquiries? Has one of your associations ever thought about this in the past or is it a thing that you are yourself thinking about and working on?

Mr. Jean-François Fiset: Ms. Zambelli might not be aware of it but when the minister's last white paper was published, after the consultations, we had suggested the establishment of a refugee ombudsman. It should be a non-political appointment. This person would have been kind of a civil servant whose task could have been a last check according to an existing mechanism and to whom certain cases could have been referred. It is not well articulated yet but I have already made such a proposal.

• 0950

[English]

Mr. David Matas: If I may, I'll respond to both of your questions.

First of all, in terms of training, I would second what Mr. Fiset said about training on credibility. Obviously the board members should know the refugee definition and country conditions, but when things go wrong, more often it's with the false credibility assessments. People are assumed to be lying when they're telling the truth. It's not just credibility criteria but a credibility assessment in a cross-cultural context. What's needed is the cross-cultural training so that people can be sensitized to the way people would communicate in other cultures. That would be helpful.

In terms of a complaints procedure, the board has always had a complaints procedure, but it hasn't functioned very effectively, because it's basically just been very supportive of the people complained against and hasn't been truly independent. They've just devised a new complaints procedure as a result of complaints about their past complaints procedure, and it remains to be seen how effective the new complaints procedure will be.

The Vice-Chair (Mr. Steve Mahoney): Thank you.

Presenters can feel free to respond in French or English. We have simultaneous translation. So please be comfortable to do that.

We have to move on to other questioners or we're going to run out of time. Can you be brief?

Ms. Pia Zambelli: Yes.

There's a deeper problem, because having been a board member, I can tell you honestly the training we receive is very good. We receive an excellent training course, and every month we meet to go over the Federal Court cases, most of them dealing with credibility. It's hammered into the members' heads over and over and over again. The legal department is excellent at the board.

There's something else wrong. My colleague touched on it. It's the spirit with which the people approach the cases. This could only be rectified not only by ensuring they already have background, but as Mr. Matas suggested, through some kind of advisory committee, made up of people from different sectors, to assess the global profile of the person on the board.

The training process is excellent at the board. The legal department is excellent. We receive a great deal of sensitivity training and training on cross-cultural issues and credibility. It's already there.

There's a problem, and that's not going to work.

The Vice-Chair (Mr. Steve Mahoney): Thank you.

Mr. Limoges, five minutes.

Mr. Rick Limoges (Windsor—St. Clair, Lib.): Thank you.

I heard Mr. Matas say earlier that the focus is wrong if we're looking at tightening the system. I'm just wondering if you might comment very briefly on the situation where there's perceived abuse of our goodwill as a nation, in terms of using the refugee system inappropriately to attempt to bypass normal immigration processes, for example, and otherwise.

Also, I'd like to hear from others, perhaps Ms. Zambelli or someone. Much has been said about patronage in terms of order-in-council appointments. I'm not surprised to hear this group would like to see lawyers appointed, but what about the need for having appointees reflect the overall population? It might surprise this group, but there are those in this society who don't think lawyers appropriately represent the common people of Canada.

Mr. David Matas: Obviously politicians have to go with perceptions, whether they reflect reality or not, but if you look at the perceived abuse, the numbers are small. There's a lot of noise about a few cases, and perhaps that's the way the media works and the system works, but it would be a mistake to distort the system to in fact put everybody through screening just to catch a few people, because that's going to cost a lot of time and money, and it doesn't serve any real purpose.

What I assume would concern people most is criminality. As I said before, the way to deal with criminality is through the criminal justice system. You can't effectively.... It's not just that it's wrong to deter through the immigration system; it's also—

• 0955

Mr. Rick Limoges: I'm sorry; could I interject? To take your comments at face value, it would seem we could throw the process out completely and allow in anybody who applies, with a check of their criminality and so on. Is that what you're implying? Could we speed it up by simplifying it to that extent?

Mr. David Matas: Well, I appreciate that we can....

The way we prevent people from coming to Canada now is we have visa-requirement countries, and we deny visas to people who don't look like they're going to visit; we have carrier sanctions to prevent carriers from bringing people over; and as well, we have control officers abroad. That's our network of control.

I'm not suggesting we lift that entirely. I wouldn't say we should have no carrier sanctions, but they should be differentiated. Right now we impose sanctions on carriers even if they're bringing over real refugees, which is wrong. We shouldn't penalize carriers if people are found to be refugees.

In terms of visa requirements, I wouldn't say lift all visa requirements, but they can be lifted selectively in those countries that are refugee-producing, where the need is great and the numbers are small.

In terms of the granting of visas, we could grant visas in selected cases through an evolution of the resettlement from a broad class and the country-of-asylum class so that we allow direct arrivals, in more countries than we do now, of people who are real refugees.

I'm certainly proposing those modifications of the system and I'm arguing for them, but more, I'm arguing against a tightening of the system so that we prevent even more people from coming here than now, because the reality is the numbers have been pretty constant over the years. We haven't had a big spike in the numbers in the last little while. We've had some highly publicized cases of the Honduran alleged drug traffickers and the Fujian smuggled in. My attitude about those problems is that for smuggling and trafficking, you have to deal with the criminal justice system.

What the minister did was offer the possibility of landing to people who were willing to turn as informers to witness protection. Those types of things are very positive, because what they do is try to make the criminal justice system work. And it can function effectively if you cut off the smugglers and the traffickers.

The people who are being smuggled and trafficked are victims, not victimizers. It's important not to try to victimize them further as a form of deterrent, because it's not going to work and it doesn't get at the problem.

The notion that we're somehow bypassing the system by allowing our system to work is not true, because the only people who actually get to stay here are the people who are recognized as refugees. That is the system. It's not a bypass of the system.

In terms of the appointments, obviously I think lawyers have a place, though they can't be the whole board and I don't think they should be the whole board. But what's as important as or maybe more important than lawyers is people who know refugees and the refugee experience.

I've been going before the board for years, and in my experience, the biggest problem I have is not with board members who don't know the law—which hopefully, as a lawyer, I can tell them about—but with people who can't believe what they're hearing, because they have no knowledge that something like this is going on. It's beyond their immediate experience, and they think everything in the world is the way it is in Canada. So when people tell these objective stories of horror, they think they're making it up, because it's just too incredible.

I don't think we can just take a representative cross-section of Canada, because in Canada we don't live these tragedies, and most people aren't aware of them. We need people who know they're out there, and when they hear them, they can understand it's happening.

The Vice-Chair (Mr. Steve Mahoney): Thank you very much.

We'll go to Mr. Martin now for five minutes.

Mr. Pat Martin (Winnipeg Centre, NDP): Thank you, Mr. Chair.

Thank you for being here, witnesses. I'm sorry to have missed the earlier part of your address, but I am heartened by the tone of what I'm hearing now. We had witnesses yesterday who came with a very strong point of view that Canada's borders are an absolute sieve, that we're allowing in criminals and terrorists and drug dealers and pedophiles, and virtually everybody is making a mockery of our refugee system. I personally don't believe that, so I'm glad to hear some of the remarks you've been making so far.

• 1000

Building on the tone of what Mr. Matas was just saying, it seems to me, being relatively new to this, that most of our energies and resources in terms of immigration policy are dedicated towards keeping people out and not welcoming them in. We seem to be seized of that issue far more than we're seized of the issue of growing the country or living up to our obligations under the UN convention. I wonder if you'd like to talk about that.

I'd also like to get on the record how many of these so-called fraudulent cases, about which we listened to yesterday, are, in your experience.... Can we separate some of the myths from the perceptions here? Perhaps you can help us with that. I'd like to hear a little more about it.

The two witnesses I'm talking about are actually well-known Canadian diplomats who came here with a very negative message. Perhaps you'd be interested in reading the transcripts.

To any of the witnesses, if you could spend a bit of time talking about those two issues, I'd appreciate it.

Ms. Pia Zambelli: I'd like to say something about fraudulent claims. When I was sitting as a member of the board, I felt that was what I was doing all day—separating the fraudulent claims from the genuine claims. That's what I did all day. That was my job.

How many of them are there? I don't know, but in my opinion, 30% to 40% either don't meet the definition or they're making up a story. It does occur, in fact, and one gets the feeling that there is a bit of an industry to create claims that will get accepted in Canada.

So that was my job. That is what I did, day in and day out—separate the fraudulent claims from the genuine claims. I think I did it in a way that would stand up to an appeal: I did it once, I did it right, and that was it. This is what I think should be done.

The Vice-Chair (Mr. Steve Mahoney): On that, Mr. Martin, I'd like to ask a supplementary. I'll give you your time again.

Of those that you were determining needed to be separated into fraudulent and legitimate claims, do you think some of them were making up stories for non-criminal reasons—that is, they just didn't understand the system, or they were intimidated? What percentage of them do you think might be lying for criminal purposes?

Ms. Pia Zambelli: Because they were a criminal trying to gain entry into Canada?

The Vice-Chair (Mr. Steve Mahoney): Yes, or hiding a criminal record, or anything like that.

Ms. Pia Zambelli: I don't know, but I would say maybe 5%. My view was that if a person was really a terrorist, they wouldn't be coming before me. They would have a sophisticated way of buying a landed immigrant document or something and would never come before me. That was my sense.

The people they saw on a day-to-day basis were economic migrants trying to...or whatever. Or maybe it wasn't even that. They may have been in trouble in their country. Maybe they owed somebody money or maybe they looked at a policeman the wrong way. It wasn't for a convention reason. They knew they wouldn't get accepted, so they bought a standard story that had in the past produced a positive decision. These stories are circulated.

I think my friends are going to be really mad at me, but I come from an open-minded refugee advocacy perspective, and that's what I was seeing. There is an element of an industry, it's true, but people are just trying to better themselves, or else they're in trouble. They have these non-convention reasons for coming.

As I said, that was my job, to separate the wheat from the chaff, so to speak.

The Vice-Chair (Mr. Steve Mahoney): Ms. Kane.

Ms. Betsy Kane: This goes to the issue of our independent immigration system, which is separate and apart from the refugee system. We are seeing some false or made-up stories to try to gain refugee status because it's a quick way of getting landed immigrant status in Canada. But let's see: why are these 30% to 40% of false refugee claims coming forward? Because the bar is so high on the independent immigration side. You have to have a bachelor's degree, you have to have money, you need to have business and work experience. And unless you can demonstrate, to Canadian standards, involvement in your profession for at least one year, with an equivalency of a bachelor's degree, you cannot qualify as an immigrant.

• 1005

If you're working-class, if you're a tradesperson, if you've always been involved in a family business, if you're a farmer, if you're a homemaker, you don't qualify for independent immigration. You can't. You never will. The only way for you to get in is to make a refugee claim. If you are less than educated, less than moneyed, there is no way.

So the refugee system is seen as a way for non-qualifying immigrants to try—it's a lottery, as Mr. Fiset said—to convince the Immigration and Refugee Board to let them in. Then they'll work to be good Canadians. That's their attitude.

However, if we lower the bar instead of tightening up independent immigration and allow in some less-qualified people—and we're not meeting our numbers, as Mr. Matas said—then we'll see.... The basis of our Canadian society is farmers and peasants and tradespeople building this country. That's what it's all about. If we lower the bar and let some of these less-than-professional individuals come in and make a life for themselves, then perhaps we're not going to see all these bogus refugee claimants we're apparently letting into Canada, it being such a sieve.

So you may look at it that way, but the other side of the coin is how high that bar is, which is creating this false refugee....

The Vice-Chair (Mr. Steve Mahoney): Mr. Martin, do you have any additional questions?

Mr. Pat Martin: If I have any time left, I do.

The Vice-Chair (Mr. Steve Mahoney): I took some of your time, so I'll let you ask another question.

Mr. Pat Martin: Thank you for those comments. That's exactly the type of thing I was hoping to hear, to balance things a little bit. As I say, this committee has been bombarded with the opposite point of view for quite some time here.

In terms of lowering the bar, I was wondering if you could comment on some of the backlash directed at the people drifting up on the west coast, the people from the Fujian province. Some of the backlash has been, for example, why can't they just wait their turn? Why can't they make application properly, like everybody else, and get back in line?

One of our points has been that you can't get here from there, legally. You simply can't. We've learned as a committee that in a country of 1.2 billion people, there's one immigration office in Beijing. If you're working in a free economic trade zone in the Fujian province, making 18¢ an hour—that's what the ILO says they make—how do you even get to Beijing to apply properly?

What would you think of the idea, for instance, of setting up a satellite office in the Fujian province to deal with the obvious demand for people to make proper application to this country? Do you think that would be an idea to take away some of the Snake Head business, perhaps?

Mr. David Matas: Yes, that of course would be helpful, but perhaps I can tie your questions together in terms of resources.

Historically, in terms of budget cuts, enforcement remained but admission resources went down. The result is that the visa offices are underfunded and unable to meet the demand. Of course, it's a lot easier and safer to say no than to say yes.

There has been a big demand from China. A satellite office in Fujian province might be helpful, but not if it's the same people operating in the same way they operate in Beijing. As you know, in Winnipeg some garment workers were recruited from China, but the visa office just denied them for fear they would stay once they came. There's this knee-jerk suspicion of people from China, which is basically prejudicial towards the whole third world.

First of all, China should be designated as a source country for people within the resettlement from abroad class so that they could seek protection from China directly. There's an impact between what's going on with these Fujian boat people and what's going on in Seattle now. I don't see how we can say nothing about human rights in these free trade zones and be concerned, at the same time, about this Fujian outflow, because they're connected. We need an aggressive human rights policy towards China if we're going to deal directly with the problem of the people in Fujian province.

In terms of refugee determination, we need the type of specialist determination abroad that we get in Canada so that people don't come here because they will get the type of hearing here they couldn't get abroad. We need an equality of expertise in terms of processing standards criteria both abroad and in Canada.

The Vice-Chair (Mr. Steve Mahoney): I think that's sufficient. You've rather expanded the envelope for that question, but that's okay.

We'll go to Mr. McKay for five minutes.

Mr. John McKay (Scarborough East, Lib.): Mr. Matas is an experienced witness.

• 1010

Mr. John McKay (Scarborough East, Lib.): I think it's fair to say that around this table there's some considerable appetite for looking at the system and shrinking a lot of the determinations into one hearing. The quid pro quo is that at the end of the day there has to be a considerable time saving to the process.

I want to push you on a couple of the points. If, as a proposition, we took the five points of refugee determination—H and C, PDRCC, off to Buffalo for ninety days and back again, Federal Court, the whole nine yards—and rolled them into one big hearing and had that as a determined process, I take it that it's Mr. Matas' point that you have to have something there to catch the occasional error. You would then have to leave a point on which you could appeal on point of law to the Federal Court.

If the department were in fact prepared to give up its jurisdiction in H and C, in PDRCC, and all that stuff, what assurances could the Canadian people receive that in the process—refugee alone is at twelve months, and with all the rest of the stuff it's almost up to three years—there would be some considerable time saving at the end of the day, and a determination that's fair, that appears to be fair, and that results in a determination fitting within the current guidelines? About 65% of people are ending up as landed regardless at the end of the day, so I would be interested in your comments.

The Vice-Chair (Mr. Steve Mahoney): Whose comments?

Mr. John McKay: Ms. Zambelli, and Mr. Matas in particular.

Ms. Pia Zambelli: I think there would be a considerable time saving. You would have the regular refugee hearing, which we have anyway. During the course of the refugee hearing, during the course of the testimony of the refugee claimant, you may touch on the humanitarian grounds anyway, because you touch on the PDRCC stuff anyway. You'd have one assessment of credibility instead of three.

Mr. John McKay: Exactly.

Ms. Pia Zambelli: They would extend the hearing maybe by half an hour or 45 minutes, extending it from an average of two to three hours.

Often you hear everything. The person comes in and you hear the whole aspect. If he wants to testify about his H and C, it would take half an hour or 45 minutes more, and that's it. You then make your decision on refugee grounds. If he's accepted, okay. If it's an H and C case, then you make your decision about whether he's accepted or rejected. Then there's Federal Court, and that's it. There's no PDRCC and there's no H and C, although you may want to broaden the Federal Court review.

Mr. John McKay: What if you charge the board member with the decision to make the H and C and the decision to make the PDRCC simultaneously? In other words, if the person's a refugee, fine, end of story, go to landed. If the person is not a refugee, then H and C, fine or not, go to landed or not; or PDRCC, fine or not, go to landed or not. But that's the end. Does that idea have merit, in your view?

Ms. Pia Zambelli: To have a hearing at which you consider—-

Mr. John McKay: The board member makes all those determinations at one time.

Ms. Pia Zambelli: Yes, that's what I'm talking about. In fact, that used to be the case. The IAB, the Immigration Appeal Board, had H and C jurisdiction. I can't remember when. It was before.... David probably can help me.

Mr. David Matas: It was many years ago. There was no split division.

Ms. Pia Zambelli: Yes, but they used to do the same thing. They'd hear the refugee claim and they also had H and C jurisdiction. The board can't land somebody. That would have to be the immigration board.

Mr. John McKay: No, that's another issue.

Mr. David Matas: In terms of timing, it's not that hard to calculate. Right now, we have the time between application and eligibility—and the department can give you those statistics. That time would be saved. It's two or three months, I'm quite certain. And we also have the time between refusal and post-determination. That time would be saved, and it is six to eight months. So if we just telescoped post-determination and eligibility into one big hearing, we'd be saving nine months to a year, I would guess.

Mr. John McKay: Do I have much time left?

The Vice-Chair (Mr. Steve Mahoney): A little bit.

• 1015

Mr. John McKay: I take your point about appointments, and I submit to you a suggestion similar to the justice department list. I don't expect that patronage will ever be taken out of any system at any place, at any time. That's just the nature of the beast. But having said that, the justice list goes through a pretty good vetting among professionals before it reaches the minister's desk. I throw out to the Canadian Bar Association the idea that possibly the IRB list should go to the justice minister instead of going to the Minister of Immigration.

Mr. David Matas: There's this whole issue of administrative tribunals generally and whether they should be governed by standards that exist across the board. That's been much discussed internally, and there have been some drafts and suggestions, such as an interdepartmental committee, but nothing has ever surfaced. Certainly in the bar's view there's great value in the professionalization of the whole independent tribunal system.

We've heard some comments before about the immigration industry. One has to realize that there's also an anti-immigration industry. There are some people who are opposed to immigration or to a lot of immigration. It creates a distortion in the system that you don't find in the criminal justice system. Sometimes we have people with that point of view who are appointed to the board or we get people who say you can't have the NGO community involved in appointments to the board because they don't want that kind of pro-protection point of view imported into the advice on appointments to the system. It creates this dynamic, which I disagree with, but it has caused some of the problems in the present system.

The Vice-Chair (Mr. Steve Mahoney): Thank you very much.

Mr. Bigras.

[Translation]

Mr. Bernard Bigras: The issue that I am going to raise might be a bit taboo but I think this is why we are here.

I appreciated Mr. Matas saying that the Board does not really take into account social and cultural realities. Those were not his exact words but I am transposing them. It is important that the Board takes into account the social and cultural realities of different countries. I want to raise the issue today because I am a bit tired as a parliamentarian to hear about it. There comes a time when one must ask questions.

Yesterday, I was giving a speech on the occasion of International Aids Day in front of 300 people. I also work with a Montreal area lawyer on having same-sex partners recognized as a compassionate ground in considering a claim for refugee status. I would like to know if your associations have taken position on that issue. I am being told that little attention is being paid to the persecutions those people can be victim of during representations.

I am raising the issue because I don't see anything about it in the law. I don't know if it is because lawyers are more and more militant, but they are calling me. And more and more average citizens are coming to see me to ask that attention be paid to this reality which is not well accepted in some countries and that should be taken into account in the evaluation of claims.

[English]

The Vice-Chair (Mr. Steve Mahoney): Mr. Fiset.

[Translation]

Mr. Jean-François Fiset: This is a real issue. There is no taboo subject regarding immigration as we are faced with all sorts of realities depending on the people and on the country. Those realities are not always pleasant.

Torture, rape, depression are all part of our daily lot. We often meet broken people and we are very militant. In many cases, we are advancing law by pushing its limits further.

The fact is that yes there is a recognition of same-sex partners. For example, in the case of refugees, we deal with common-law partners at the same time. Most of the time, they are considered as spouses. It is also the case, for example, of people who are united by traditional marriage.

The other aspect is that persecution for homosexuality has been recognized by the Board. Many decisions concern such cases. It is quite constant. All sorts of questions of credibility and evidence arise, but this reality was specifically recognized as being part of the definition of refugee in the convention.

One must wonder about the open-mindedness of people having to make decisions. We are always faced with that issue. Not two persons alike have the same standards nor the same open-mindedness. But the fact is that the Federal Court took such decisions into consideration and probably confirmed them.

• 1020

I will give you as an example sexual mutilations, forced marriages and wife abuse in countries where there is no protection, where police do not want to interfere. We said at the beginning that those cases are not covered by the convention. People refused to recognize such cases. Gradually, case law developed and it is now firmly established.

I appealed the first case of sexual mutilations because of a refusal when the facts were not even in dispute. It was a victim of rape, of torture, also threatened with female circumcision. We won the appeal and when the case came back before the Board the decision was not even contested though the evidence was the same. I would therefore say that there is a general lack of open-mindedness or vision.

Let me say a few words about stereotypes. I remember that I recently appealed the case of a rape victim. The judge maintained that there is a definite profile of the rape victim and that according to him the appellant did not fit that profile. I don't know what in his mind corresponded to the profile of a rape victim. Personally, I met a few amongst my clients and they did not have a homogenous profile.

As we can see, there are stereotypes, preconceived ideas. It is a bit like saying that genuine refugees are all outside Canada. The position of some Board members, policemen and RCMP officers is that Canada is a true refuge for all international terrorists.

One must admit that these people vote budgets and want to strengthen their work force. Things have to be placed within their context.

[English]

The Vice-Chair (Mr. Steve Mahoney): Thank you very much.

Mr. Bryden.

Mr. John Bryden (Wentworth—Burlington, Lib.): Thank you very much.

Just following up on that remark, there have been a number of reports recently from CSIS and international police organizations to the effect that some of Canada's NGOs have been used as fronts to finance terrorism abroad. We are aware of this, and this is fairly well reported.

Is it possible that the snakeheads and the human smugglers may have penetrated the Canadian NGO movement to advocate to keep our laws as slack as possible so that they can carry on in this traffic? Is it possible that the NGOs themselves have been penetrated by these criminals?

Mr. David Matas: Sorry, what's the last phrase you used?

Mr. John Bryden: Is it possible that the non-governmental organizations have been penetrated by the snakeheads and international crime organizations in order to advocate to keep Canada's laws as slack as possible so that this trade can continue? Can you be certain your own NGO organizations aren't possibly fronts for some of these criminal organizations?

Mr. David Matas: In terms of the Canadian Bar Association, I would say it's not possible because they'd have to be lawyers.

Mr. John Bryden: That's not a problem.

Voices: Oh, oh!

Mr. David Matas: There's no profile of snakeheads indicating that they're lawyers.

The Vice-Chair (Mr. Steve Mahoney): Are there profiles of lawyers indicating that they're snakeheads?

Mr. David Matas: I realize there's a separate organization here as well, but the association beside us is also lawyers. So with our organizations it's simply not possible.

Mr. John Bryden: No, I'm not suggesting it's your organizations. I'm suggesting your wisdom.... The previous witness just made some profound suggestions about the RCMP and CSIS having agendas that were contrary to the freedom to immigrate to this country. When you make a profound statement like that, then I counter with it.

You're all part of a group; you run in that circle. You must know countless NGO organizations that are connected with refugees and immigration. Are you certain that these have not been penetrated by the very types of organized criminals that concern us here with respect to the smuggling of human beings?

Mr. David Matas: What you did is you went from the CSIS allegations about NGOs financing terrorists abroad to this suggestion. To me, that's not a very logical progression, if I may say so.

• 1025

When you're dealing with these funding fronts, what you're dealing with are ethnically based, ideologically committed groups. The snakeheads are not ideologically committed; you're not dealing with something that's upfront but with something that's underground. They're not functioning within the law. They're functioning outside the law.

We don't know who these people are as individuals. We read about them in the paper. People don't come up to us and say they would like our help in supporting this policy because it would help them run their underground criminal operation. It's as far-fetched for them to come to us to do that as it is for them to come to you to do that.

Mr. John Bryden: But I'm not talking about coming to you. I'm asking you a question there—and you're not answering it, actually. The snakeheads are motivated by money, it's true, but it is naive to suggest that the various terrorist organizations aren't motivated by money as well. If you read in that area of literature, you'll find that the political agendas of many of these terrorist organizations have switched from actual agendas to making money from drugs and, as we heard from other witnesses, from human smuggling.

I just suggest to you that it's all very well to to say that the RCMP and CSIS are pursuing agendas because they have to justify the tax money they receive, but I would suggest to you that surely the NGO movement must be subject to some of the pressure from these snakeheads and organized.... Can somebody else answer?

The Vice-Chair (Mr. Steve Mahoney): May I just interject here for a moment? The Canadian Council of Refugees, which is the umbrella group for all of the NGOs you're talking about, is coming before us next week, and they might be more a appropriate group to ask the question to. I mean—

Mr. John Bryden: That's a very good suggestion.

The Vice-Chair (Mr. Steve Mahoney): —you can voice an opinion, but I would—

Ms. Pia Zambelli: I don't think it's possible for Canadian NGOs.... The only thing I've ever heard about that are rumours, like the Tamil Tigers, say, who put out propaganda about how bad it is, how the government in Sri Lanka persecutes people. That propaganda can sometimes be accepted as fact by some human rights organizations.

That's the only thing I've ever heard that would have.... No, I don't think it's possible, certainly not for the snakeheads, but maybe for the terrorists with the political motivations. The snakeheads don't want the system to loosen up here; I think they want it to tighten up, right? If we opened the doors, they'd have no business any more.

A voice: Good point.

The Vice-Chair (Mr. Steve Mahoney): We'll go to Mr. Telegdi.

Mr. Andrew Telegdi: Thank you, Mr. Chair.

The dilemma is, if you look at the admission rate to this country, we admit close to 50% of the people who make claims under refugee status. And we know that some of them are not genuine refugees, but we do it because the system.... If it comes down to a matter of rejecting or admitting, overall, I think, the board would err on the side of admitting.

But that doesn't necessarily apply to individual cases, where we might have a problem. I think our percentage is close to 50%, which is pretty well the highest in refugee-admitting countries. I think the quality of individual decisions might be lacking at some point, and how does one improve that?

Mr. Matas, you mentioned that there is an industry that is totally on the other side, from your perspective. I will classify them as an industry. I keep receiving literature from Canada First's immigration reform committee. I'm not sure if you're familiar with their organization. It's a form that says “Canadians demand illegals get deported immediately”. It verges on...“illegals and snakeheads, they're laughing at Canada”, “deport the illegals”—

The Vice-Chair (Mr. Steve Mahoney): Close the door.

Mr. Andrew Telegdi: Basically it is “close the door”. I think it's pretty well the mentality, if we refer back to Mackenzie King's time, that was existing in this country. A lot of it is verging on hate literature.

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First of all, are you aware of that committee in your work with the department?

Mr. David Matas: Yes, the name has a ring to it. There are these kinds of extreme right-wing groups that play on the immigration issue as a way of promoting their racist agendas. That obviously has to be a matter of concern. Obviously there's more here at play than that. We are dealing with large issues about which the whole of the Canadian public is concerned. I think it's important to realize that there is, in this area, an extreme right-wing fringe. It's important to identify them for what they are and not to buy into their agenda.

There's another comment I could make. In terms of your preamble, you talked about our rate being the highest in the world, but I think what we have to do when we're comparing different countries.... They break up their decision-making into different components, and you can't just compare recognition rates. In some countries they break up risk into different components. In many countries they will grant refugee status to very few people but will give some other form of risk protection to large numbers of people. The only true comparison is removal rates, rather than recognition rates. In terms of removal rates, we're not the best in the world—far from it. There are other countries that have lower removal rates than we do.

Also, in terms of statistics of fraud, there are some actual existing statistics out there that you can look at. The board makes determinations on “no credible basis”, and you can find out what those figures are. The board also makes determinations of vacating or removing decisions, based on misrepresentation, and you can find out what those figures are. You will find out that those numbers are very small indeed.

Every country has its own system. For instance, I was just in Finland this month on some human rights business. Their stay rate is over 90%. In the United States, for instance, they have this system of extended voluntary departure, which expands the refugee definition in terms of allowing people to stay. In Europe they have the B status, a secondary status.

In France and in Germany, for instance, they don't recognize people who are fleeing persecution from non-governmental agents as coming within the refugee definition, so the recognition rate is down significantly because they cut off a whole portion that we normally cover within the definition. But then they allow these people to stay under some other form of status, which brings the rates up significantly.

One has to be very careful in comparing countries in terms of their recognition rates.

The Vice-Chair (Mr. Steve Mahoney): Thank you very much.

I'm going to offer each group, if I may, an opportunity for one of you from each organization to perhaps make a five-minute closing statement if you'd like.

Monsieur Fiset.

Mr. Jean-François Fiset: Thank you.

In terms of the closing statements, I appeared two years ago in front of this committee on the question of removal and detention. There were a lot of things being said, which the panel took cognizance of and analysed.

We're facing a very different system these days. The rate of acceptance is down to about 44% nationally. It's probably the lowest it has ever been. For certain sections of the country or for certain ethnic groups, it's close to a 90% refusal rate—around 87%, 83%. So we are turning away people who should not be turned away. That's very clear. Perhaps we are accepting some refugee claims that we shouldn't be accepting, but that begs the question of how fair the system is. I think it is not as fair as it can be. There is a lot of room for improvement.

Recent initiatives have been challenged by our association, like for instance the use of videos in determining credibility, with board members sitting in Ottawa while the claimant, his lawyer, and his interpreter are sitting in Montreal. That creates a problem. I don't think you can evaluate credibility from that distance.

I did one case, and it was an awful experience. The TV would freeze and the sound would go off. We started with microphones and ended up with telephones. The interpreter had to repeat everything twice. And we ended up getting a refusal on the bench.

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I think the IRB is moving in the wrong direction when it wants to promote and standardize the use of video for refugee determination. It doesn't mean it can't be used in certain forums, but it's certainly not the best of things. I think the Federal Court has yet to hear cases where things of this nature happen.

I also think some board members have a tendency to reject on the bench, because they feel that is what's expected of them. So there is really very little talk. We hear the evidence. We hear the submission. And I think for some of them, their minds are already made up. They may write the decision as they go along, and that's very bad.

I have nothing against shortening the delays, but shortening the audition process is a problem. The Federal Court has warned IRB members to take their time in assessing credibility. Half a day is not an awful lot when you've been waiting for a year. Some people have waited three years to get a half-day hearing.

So I think there are certain practices that should be discouraged and banished—for instance, when the board members tell the lawyer or the claimant they don't need to hear them, that they have their narrative in from of them, so they don't need to hear them. I mean, that's their job to hear claims. I wouldn't think of a criminal judge saying that to an accused person who wants to testify on his own behalf. There is something fundamentally wrong with this approach.

Sometimes lawyers are treated as non-lawyers. So we turn to the other side, the refugee case officers, and say “Well, the refugee case officer is with the board and he's going to ask the question. We're going to start with that person. If time is left, then we'll give you the right to present your evidence.” There is something wrong with that approach. I resist it, as do many lawyers.

We are attorneys. Would you like to present your defence before the prosecuting officer presents his evidence? I don't think so.

On one final chapter on the subject of these decisions on the bench, I think reflection is always good, even for juries. Juries have a right to go out of the room to reflect and think and take whatever time they need. Why is there this national pressure on board members to give an on-the-bench decision, even if it's negative?

It's a preferred position. It's an encouraged position. And I think that's very dangerous. Reflection is part of the process. Sometimes two board members sit. They have loads of evidence, pages of testimony, and cassettes. Perhaps they should take a day or two to review the evidence and perhaps they would come out to a better decision, a more enlightened decision.

I have one final note. I think there are certain board members who do a great job, and I see that. I recognize that. But I've used Mrs. Zambelli as an example to ask why we are not renewing this type of person. It's not logical. This is somebody who's experienced, who has written books, and yet we keep people who sell coats. They used to be a salesperson, or a campaign attaché. These people are kept; they're renewed. So I think if we want to improve the system, we ought to keep the good elements, the competent elements.

These are my remarks.

The Vice-Chair (Mr. Steve Mahoney): That happens in Parliament too, by the way.

Voices: Oh, oh.

The Vice-Chair (Mr. Steve Mahoney): Could we ask one of the folks from the Canadian Bar Association to do five minutes?

Mr. David Matas: My colleague Betsy Kane has deferred to my age.

We are here trying to improve the refugee determination system, as well we should. But I think we should keep in mind that even right now, on the whole, we have a pretty good system. In trying to improve it, we shouldn't destroy it. The system we have has been imitated in Australia and the United States. It can be made faster, but it also can be made fairer. We should work on both, not just on speeding it up. Sometimes we lose fairness if we move too fast. We have to keep an eye on not destroying what's good in the system in order to deal with the problems we identify.

In terms of deterrence, we certainly want to deter criminality and smuggling. But we don't want to distort the system and prevent real people from being protected in order to have that deterrence.

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The fundamental business of a refugee determination system and a protection determination system is to determine who needs protection. We cannot lose sight of that fundamental goal, which is to offer protection to people who need it.

We have to look at the asymmetry between false positives and false negatives. If we deny someone in error, we put that person's life at risk. If we accept someone in error, all that happens is somebody who maybe didn't qualify under the point system gets to stay here anyway. And economists tell us that those people will contribute to the economy over the long run, in any case.

So we shouldn't in our zeal to try to prevent abuse to the system prevent people who really need protection from getting it. The fundamental goal, the goal above all things, while we should be concerned about speed and these other things, is making sure the system is fair and provides protection to those who really need protection.

The Vice-Chair (Mr. Steve Mahoney): Thank you very much. It was very helpful.

Mr. John Bryden: Can I make one comment, Mr. Chairman?

The Vice-Chair (Mr. Steve Mahoney): Sure.

Mr. John Bryden: It's just to follow up on Mr. Matas' remarks.

I just want to note that twice you've made reference to the fact that there is nothing lost if these refugee claimants turn out not to be valid refugee claimants. They are simply absorbed into society and become good citizens.

All the testimony we've heard before points to the issue that these bogus refugee claimants are usually en route; they don't necessarily even stay in Canada. They go out into a form of slavery in the United States or elsewhere. So I cannot resist observing that the issue here isn't simply whether somebody is a bogus refugee but gets to stay anyway and contributes to society. The issue here is that there's a weakness in the system that appears to be contributing to a form of slavery in the 21st century that we should be doing everything we can to block.

Mr. David Matas: Can I just—

The Vice-Chair (Mr. Steve Mahoney): Well, in the risk of us reopening, I'm going to allow you just one brief response.

Mr. David Matas: I'm as concerned with slavery as you are. I hold no brief for slavery. It's just that in my view, the way to deal with slavery is to deal with the slavers, not the slaves. You don't victimize the slaves even further in order to solve the problem of slavery.

The Vice-Chair (Mr. Steve Mahoney): Thank you all very much.

On that note, we want to thank you all for coming, for taking time our of your schedules. We very much appreciate the input you've given us this morning.

This committee stands adjourned until Wednesday, December 8, at 3:30 p.m.