CIMM Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, September 28, 2000

• 0912

[English]

The Clerk of the Committee: Honourable members, I see a quorum. Our first order of business is the election of a chair. I am ready for nominations.

Mr. Keyes.

Mr. Stan Keyes (Hamilton West, Lib.): Mr. Clerk, I would like to move that Joe Fontana take the position of chair of this esteemed committee.

(Motion agreed to)

The Clerk: I would ask Mr. Fontana to take the chair.

Mr. Stan Keyes: Congratulations on a hard-fought victory.

The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Thank you.

We go to the next order of business, which is the election of a vice-chair. Motions.

Mr. Stan Keyes: Mr. Chairman, I would like to nominate in absentia Steve Mahoney as vice-chair of the committee.

The Chair: Okay. Yes, Leon.

Mr. Leon E. Benoit (Lakeland, Canadian Alliance): I would like to nominate Inky Mark as vice-chair.

The Chair: As you know, we have two vice-chairs. Maybe we should take them one at a time.

Mr. Leon Benoit: Are we still working on the one? I thought we had gotten through. Sorry.

The Chair: Are there any other nominations for vice-chair? Is it agreed that Steve Mahoney be the first vice-chair?

(Motion agreed to)

The Chair: Leon, you have moved Inky Mark as second vice-chair in absentia?

Mr. Leon Benoit: Yes.

(Motion agreed to)

The Chair: I wonder if I could just begin by welcoming all the members of the committee, old and new. I believe we are embarking on a very important mission as we review Bill C-31. As we all know, this is the first time that Parliament will be conducting a wholesale review of our citizenship and immigration acts. I think it allows all of us all, of all parties, the opportunity to help fashion a new Immigration Act and a refugee act that will serve our nation well into the new century. We have some great opportunities to in fact be bold and visionary as to the kind of immigration policy and refugee policy and citizenship policy that we want for our country. There's no doubt that there are an awful lot of people in this world who want to come to Canada, and we're very proud and grateful for that.

• 0915

There are a number of challenges, obviously, to make sure that our Immigration Act and Citizenship Act and our refugee policies reflect the Canadian values that we are very proud of historically and presently. There are a number of challenges in the system, as we know. We've heard already many witnesses when we in fact conducted our review of the refugee determination system in our immigration. There are many challenges to make sure that the system works, that we are able to achieve our targets with regard to the number of people who want to come to Canada. We should also bear in mind that every country in the world wants to attract the best and the brightest. There are some real skill shortages in this country that we need to look at—family class, the economic class, our refugee determination system.

I look forward to working with you. In the spirit of what Canada is all about, I hope we can work together for the benefit of all Canadians. We embark on our public hearings starting today, with the IRB. But more importantly, we will begin to listen to the Canadian people on Monday morning, as we cross the country in the next three or four weeks to hear from Canadians as to what they want our immigration and refugee act to be. So in the spirit of working together for the benefit of Canada, I begin the proceedings.

I would invite our first witnesses....

Leon.

Mr. Leon Benoit: Mr. Chair, I was just speaking with our people from the whip's office, and they said that this meeting.... They had agreed to waive the 48-hour notice for purposes of electing a chair and vice-chairs and for no other purpose. We're not prepared to go ahead hearing witnesses at this time.

However, I do think we have some important discussion to carry out on the travel, which apparently is scheduled for next week. We need more notice than that. I feel it's not unreasonable to expect at least three weeks' notice on when we're going to start to travel. We talked about this last year and we passed a motion at this committee to travel. I agree with that. But we've had all summer to organize this.

I certainly gave a list of witnesses that I proposed and the reasons for those witnesses and for discussion on certain portions of the bill that I felt needed particular attention. My schedule—as yours is, I'm sure, Mr. Chair—is set for the next three weeks. I feel that we need three weeks' notice to commence travelling.

The Chair: Perhaps I could address a number of issues.

First of all, before we left here in June for the recess a number of issues had been discussed and a number of press releases had gone out to the public indicating (1) that we wanted their input; (2) that they were supposed to make their submissions by a particular time period; (3) that the clerk's office over the summer period would be working on the travel schedule and in fact a notification to the various citizens and cities as to when we were going to travel.

I think right from June we had laid out the basic plan. We said that the moment we came back—and we all knew when that was going to be—which was September 18, that it usually takes ten days to two weeks to constitute the committee, and that we were going to start our hearings from the department and the IRB and then the subsequent week we were going to travel. So I think the plan was laid out in June.

During the summer months there were some discussions between the clerk's office and yourself, I believe, Mr. Benoit. The fact is that I've had some discussions with the official critic of the Alliance Party, which is Mr. Inky Mark, and he knew what the travel schedule was. We've all been working very hard toward that schedule. I can tell you right now that certain commitments have been made. Certain undertakings have been made in Toronto, for that matter, starting on Monday and throughout the schedule. So there's no way we can now cancel travel schedules and commitments that have been made to people on the basis that you think you need additional time. This thing was laid out right from the beginning, and as early as two weeks ago, when I spoke with your critic, he knew the plan. He knew everything. There was no difficulty whatsoever.

• 0920

With regard to this 48-hour notice in order for us to constitute the committee, there was an attempt by all parties to get on with hearing these bills, especially this one, Bill C-31. I know of no conditions that were placed on that 48-hour waiver notice that said we shouldn't hear anyone.

I would hope we're going to take the next hour, hour and a half, and listen to the Immigration and Refugee Board, before we start hearing from the people. We have an awful lot of other things to discuss, including the briefing books with the regulations that the minister and the department have promised us. They're going to be here so that we're prepared when we hear from the public.

Unfortunately, if there's been a misunderstanding on your part, Leon, I don't know where it has come from, but I know that this was laid out in June, and in subsequent discussions with yourself and the critic, the time period was already set.

Mr. Leon Benoit: In fact, the correspondence was coming to me, because of course until the critic officially became vice-chair, the information came to me. There were no dates until last week, and that's too late. We talked in a general way about travelling in the fall at some point. I always assumed in fact, Mr. Chair, that it would be reasonable to have at least three weeks' notice of when we were going to start travelling, after having the whole summer to prepare this. All of a sudden, last week, getting notice that we may travel this week...in fact, we only found out a few days ago. Pardon me, we found out this week that we're going to travel next week, or that's the proposal. I just can't accommodate that. My schedule can't accommodate that. I don't know if Mr. Anders' schedule will allow that, but I want to be there when these witnesses are heard and I absolutely can't because of timetabling.

The Chair: The only thing I can tell you is that right from the beginning certain discussions have taken place. The total committee will not be able to travel. If you can't, Inky Mark, your critic, said he could. Rob Anders is prepared to travel, as I understand it. The arrangements are that ten members of this committee will be travelling, so not all committee members can.... We want to make sure that all parties are represented, of course, so if you can't accommodate it in your schedule, I think that's something you'll have to deal with your own critic about.

Mr. Bigras.

[Translation]

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Mr. Chairman, my house leader asked me a question about this trip that we discussed recently, if I'm not mistaken, with the Government House leader. Naturally, I gave my approval for this trip, but I must confess that, like Mr. Benoit, I find that the level of preparation has not been very high for a trip that is to begin on Sunday, especially since we know that the House has not yet passed a motion authorizing this committee to travel. Let's be serious. We must be conscious of the fact that the House has not authorized the committee to spend money on this trip which is beginning in three days. That's the first thing.

Secondly, as far as preparation is concerned, we must realize that we will be meeting with certain groups and organizations concerned with the issue. Consequently, we must also be well prepared as far as content is concerned. I don't want to question this committee trip today, but I must agree with Mr. Benoit that the level of preparation leaves something to be desired and I wanted to make my opinion known to the committee. I could not do otherwise.

[English]

The Chair: Thank you, Bernard. You've raised two issues.

First, I believe the witnesses and the people are perhaps more prepared than you would give them credit for. They have known since June, when we told them through various media, advertisements and so on, that the committee would be travelling in October 2000. They put forward their submissions over the summer months. The public is ready. They know the bill. I believe the committee is well aware of the issues. We saw the bill before we left here.

• 0925

I should also remind you that before we left, in what was the third or fourth report of this committee to the House of Commons, we notified the House that this committee intended to travel in October. The paperwork was all put forward in the summer months, and the moment we came back the subcommittee on travel approved the travel budget, with the opposition knowing full well.... In fact, if I'm not mistaken, one of the members of the Alliance Party was at the subcommittee meeting when the budget for travel for this committee was discussed and approved, along with my counterpart on the Alliance. So everything has been done.

I would agree totally with you that everything has been done in a hurried fashion, but that's because we believed that when we came back here, one of the most important things we were going to do was to get on with the business of Bill C-31. So I think everyone should have known that we were going to travel.

Are we prepared with the legislation? Maybe yes, maybe no. Some of us spent time in the summer looking over that. As far as the regulations are concerned, we're going to be providing everyone with a briefing book.

The people are ready to be heard. It's whether or not this committee is ready. I can tell you from our side that we are. The clerk has advised me that the House leaders have already approved our budget and our plan.

In addition to the regulations and the bill, today the members will be receiving all of the submissions that have been received by the clerk's office from people across the country, as well as the result of the hard work that Margaret has done on a summary of all of those submissions from the hundreds of people who have already made contact with our committee.

On that basis, I'm going to move that we move to the witnesses. Can I have a motion that we begin our hearings on Bill C-31?

Mr. Stan Keyes: I so move.

Mr. Leon Benoit: Mr. Chair, I have a point of order. As I've said, the whip's office informed me in no uncertain terms just before this meeting that they had not agreed to hear witnesses. They agreed to waive the 48-hour notice for one purpose, and that is to constitute this committee, not to hear witnesses.

The Chair: I know nothing about that. The only thing I can tell you is that—

Mr. Leon Benoit: If you're not going to respect this agreement, there are going to be problems in the future.

The Chair: I'd like to see the wording. The only thing I can tell you is that this committee is the master of its own destiny.

I have a motion on the table that we begin the hearings on Bill C-31.

[Translation]

Mr. Bernard Bigras: Mr. Chairman, usually, when a committee is meeting for the first time, we elect the chair and we adopt a motion on opening statements and the questioning of witnesses by parties on a rotating basis. I have only been here for three years, but it seems to me that, generally speaking, we elect the Chair but we also establish the order of questioning by the parties. Is that right? I have only sat on two committees, but this is the first time that I have seen this happen.

[English]

The Chair: That's a very good question, Bernard. As you should know, this is not a new session of Parliament. It was just an adjournment from last year. So routine matters, such as the order of speaking and the time allocation, will remain as they were last year. So I saw no reason, and the clerk saw no reason, to put forward those routine matters. We're not talking about a new session, which means you have to begin by passing certain motions. We are operating just as we did last year, because there was an adjournment of the House in June, not a new session. Your point is that we will be using the same routine and procedural orders as we were during the last session.

The clerk would like to give you some information.

[Translation]

The Clerk: The Standing Orders only provide for the re- election of chairs and vice-chairs in the month of September. Routine motions remain the same. Obviously, once the committee has been established, you can change them, but it is not necessary to....

Mr. Bernard Bigras: Consequently, the decision is left up to the Chair.

• 0930

The Clerk: No, this comes under the Standing Orders and the Standing Orders provide that, in September, there is to be a review of the membership of committees that wish to re-elect a chair and vice-chairs, but it is not necessary to vote on routine motions again.

[English]

The Chair: On the motion, are all in agreement that we begin our hearings and ask our first witnesses to appear?

Some hon. members: Agreed.

The Chair: Thank you.

Just before I ask the IRB, again, I'm sorry, I thought I heard the new leader of the Alliance Party say that he was going to bring a new spirit of order in this House of Commons. There is no doubt that while he might feel that way, Mr. Benoit continues to be a complete irritant to this committee. All last year he was nothing but an obstructionist.

I look forward to working with Inky Mark, the critic of the Alliance Party. He's indicated that he looks forward to helping this committee and this Parliament with fashioning an immigration bill that is going to serve Canada well. I'm just very disappointed that the Canadian Alliance again begins their tactics and their antics. I don't think that bodes very well at all for a spirit of cooperation and working together. I hope that when the official critic of the Alliance Party shows up we will get a lot more cooperation.

Thank you very much.

Could I have Peter and the IRB and his colleagues now appear before the committee?

Members, I should tell you that these proceedings of Bill C-31 hopefully will be televised so that Canadians can witness what we're doing and engage them and be as informative as we possibly can.

Perhaps had the Alliance Party known that they were on television they would have acted accordingly. I tell everybody formally now that the eyes of Canada are upon us, and hopefully we will conduct ourselves as true Canadians do: with humility and compassion and caring for one another and working toward a laudable goal such as our new act. Thank you.

Peter Showler, Mr. Bailey, and Mr. Palmer, welcome again to our committee. We valued your input as we had our study on the refugee determination system. I think you've given us some great information, and we look forward to your participation in Bill C-31 as one of the bodies that has to implement what Parliament decides should be the policy. So welcome again, Peter, to our committee.

Mr. Peter Showler (Chairperson, Immigration and Refugee Board): Thank you very much, Mr. Chairman, and congratulations on your recent election as well. And good morning to all the members of the committee.

[Translation]

Good morning to everyone.

[English]

I would first of all like to introduce my two colleagues. Mr. Philip Palmer is the general counsel for the Immigration and Refugee Board. Mr. Palmer is also responsible for the legal implementation office of the bill within the board. Mr. Glen Bailey is the director of policy, planning, and research. Mr. Bailey is responsible for the operational planning and research related to implementation of the bill. That's why I've asked them both to come here today to assist me as witnesses and to assist you as witnesses.

I will attempt to keep my opening remarks brief. We have provided you with more extensive written copies of the remarks.

[Translation]

I will be making most of my comments in English, however I would invite you to ask questions in the language of your choice.

[English]

I would first of all like to share some general observations with you about Bill C-31. Secondly, I would like to review with you the principal features of Bill C-31 as they affect the work of the board.

I'm aware that there will be great interest in many of the proposals that are before you. As the head of an independent quasi-judicial tribunal, I am not in a position to either support or oppose the policies of the government. I will, however, give you the perspective of the Immigration and Refugee Board as a decision-making body created by Parliament to interpret and apply immigration and refugee law.

• 0935

[Translation]

In doing so, I will try to explain the impacts of the legislation on our operations. Where appropriate, I will explain where and how we think the Bill could be improve to facilitate our implementation and interpretation.

[English]

Briefly, in terms of the history of the bill, the IRB has participated in each phase of the present bill, from the time of formation of the immigration legislative review advisory group in 1996, through until the present. The IRB does not, of course, formulate the policies of the Government of Canada. Our role has been a modest one in the overall development of the present legislation. However, I thought it would be useful for you to be aware that the IRB comes to you today with a history of involvement in the bill from the beginning.

Bill C-31 attempts to simplify the language and structure of the current Immigration Act, which after all is legislation that was originally introduced in 1976. Bill C-31, as you know, is framework legislation. The drafting succeeded, in our opinion, in realizing many of its ambitions in terms of clarity and simplification. With modest amendments, we believe the legislation will work effectively.

We have been working with officials of the Department of Citizenship and Immigration to develop amendments to make technical improvements to the bill. This process is ongoing. As we understand it, the results will be brought to this committee by the minsiter.

With regard to the impact on the board of the bill,

[Translation]

Bill C-31 will have significant impacts on our operations. We're committed to effecting any changes to our jurisdictions that may be approved by Parliament. We are making every effort to ensure that, if this Bill is passed, we will be in a position to fully implement the legislation upon its proclamation. Given that we are a small organization, whose activities are governed by the Immigration Act the impact of legislative changes will be very great, and will touch the work of virtually every IRB employee.

[English]

I would now like to examine some of the changes, one division at a time, beginning with the refugee appeal division.

What is certainly the most significant change created by the bill is the creation of a fourth IRB division, the refugee appeal division, which we call the RAD. At least we have found a convenient acronym for it, so on that alone we should congratulate the drafters. This division will create for the first time an appeal on the merits from IRB determinations of refugee claims. It will be a paper review. The RAD will not hear live testimony.

I have no hesitation in stating that single-member decisions by the refugee protection division, followed by a review on the merits by the refugee appeal division, is a fairer and ultimately faster and more efficient means of deciding refugee claims. We believe that the RAD will do justice in individual cases, and at the same time will provide a coherent body of case law as guidance for the refugee protection division.

As we envisage it today, the RAD will be a small, expert division working out of a single centralized location. We intend to equip it with appropriate staff and resources to allow it to deal with what we estimate will be a workload of 6,000 to 9,000 cases a year. We believe that all of its members must be experienced decision-makers, with prior experience in the IRB's refugee division.

It has been said that the legislation does not articulate the independence of the RAD. I would like to reassure the members of this committee that the IRB is acutely aware of the requirement that the RAD be independent of the refugee protection division, or as we refer to it, the RPD. In our view, further amendments are not needed in this regard. The creation of internal procedures will be sufficient to ensure that the independence of the refugee appeal division and its members is protected.

The RAD will report to the chair through a separate deputy chair. It will have its own professional development staff. It will also receive legal advice from legal counsel specifically assigned to meet its needs. The RAD will be master of its own procedures and will determine its scheduling and case management priorities. There will be protocols in place to govern communications between the divisions.

In short, we are alive to the concerns that have been expressed, and we will systematically address those concerns in the months to come.

As you can see, we take very seriously our responsibility to ensure that the RAD is independent and is seen to be independent in its judicial administration.

• 0940

I believe that the refugee appeal division is an important improvement to the Canadian regime of refugee protection. The thorough initial oral hearing conducted by single members of the RPD, when combined with a prompt paper appeal on the merits conducted by the RAD, promises to create a refugee protection system unique in its fairness, efficiency, and effectiveness. I would, however, ask you to consider in your study of Bill C-31 two amendments respecting the RAD provisions.

As you know, most appeals to the RAD will be heard by a single member, but there is a provision to strike three-member panels to deal with very complex issues or for issues where there is wide inconsistency in the RPD. These decisions will be binding on the RPD. We believe that the bill is worded so narrowly that the RAD will be unable to exercise its important role in ensuring that like cases are decided in a like fashion.

To ensure that the new division can fulfil its mandate, we believe the bill should be amended to enlarge the binding effect of decisions of three-member panels. We are continuing our discussions with CIC officials, and we hope an amendment can be agreed on that will ensure that this important part of the RAD's function is not unnecessarily impaired.

In the same vein, after considerable internal reflection, we would also like to recommend that single-member RAD panels be bound by the decisions of three-member RAD panels. The IRB is working with its counterparts at CIC and the Department of Justice to develop an amendment to this effect.

I move on now to the refugee protection division. The refugee protection division will, under Bill C-31, see some important changes to its jurisdiction, the most important being consolidated grounds. The bill proposes that the division become responsible for adjudicating claims to protection based on the two new grounds: claims arising under the convention against torture, and claims arising from personalized risk to life or cruel or unusual punishment or treatment in the country of origin. For the first time, claims to protection on these serious grounds of risk will be adjudicated through an oral hearing. This is a vital safeguard for claimants.

We welcome these changes. They are grounds for protection that are now exercised by CIC officers, and we believe they are very close in spirit and nature to the refugee determination work the IRB does now. We believe the risks merit the procedural safeguards offered by the IRB and that the rich country documentation available to us makes it logical that such determinations rest with the members of the RPD.

[Translation]

We welcome the move to single-member panels as well. We have long believed that the single-member panels are necessary, not only to make more efficient use of our members, but also to enhance their accountability. We think that by instituting an appeal on the merits, any remaining benefit of the two-member panels has been exhausted.

Let us now take a look at the Immigration Appeal Division. While all the changes that may arise from changes associated with the regulations cannot as yet be anticipated, we expect that the greatest changes to the Immigration Appeal Division will result from the new provisions that mandate appeals without oral hearings for loss of permanent residence.

It is not the place of the IRB to take issue with a policy decision to mandate certain classes of “paper hearings”.

We have been in discussions with CIC officials, and are optimistic that amendments that improve the proposed hearing process may be forthcoming.

[English]

Fourth is the immigration division. The present adjudication division will become the immigration division under the new act. This division is often not fully appreciated, but it plays a vital role in Canada's immigration system. We would like to emphasize the critical importance of this role in determining whether to order the detention of a person who is alleged to be in Canada illegally or to order the continued detention of that person.

The immigration division is an important safeguard of the freedom of persons who come into conflict with Canada's immigration laws. It is thus a sentinel that guards the liberty of individuals and ensures that their freedoms are restricted only where the state can justify a detention.

We understand that there was no policy intention to restrict or diminish either the powers or jurisdiction of members of the immigration division from those they have under the present act. Unfortunately, we think this an area where the drafting of the bill did not fully capture that policy intention.

• 0945

We think the powers of immigration division members are insufficiently spelled out, and the grounds they are to consider in scrutinizing detentions are ambiguous in ways that could result in an injustice to persons detained by immigration officers. We would like to see these powers clarified to better reflect the current provisions respecting detention and release. We are pursuing discussions with CIC officials with a view to improving the wording of these sensitive provisions.

In summary, I would like to say that the IRB is generally pleased with its overall treatment under Bill C-31, as well as that of its jurisdictions. We believe that, with a number of clarifying amendments, Bill C-31 will greatly assist the IRB in fulfilling its mandate, namely rendering fair and fast decisions efficiently.

I would now like to briefly move on to implementation. The implementation effort will touch every person and every system within the board. We not only have to deal with changes to existing divisions, but to create a whole new one, the RAD. Against the backdrop of aggressive case management initiatives, we must redraft our rules, modify our procedures and forms, reshape our reference and education tools, rewrite our manuals and handbooks. We will have to train all of our decision-makers, our hearing room personnel, our registry staff, our support staff, and even our lawyers on the important changes this legislation will be bringing.

To describe the impact of the legislation, I would like to use the following analogy. If you can conceive of the IRB being similar to a ferry boat, our work is to carry passengers every day. We work to that capacity, or near capacity. There is always a lineup of passengers waiting. Last year the passenger volume in CRDD increased by 23%. We have comparable passenger levels this year.

Implementing the new legislation is like redesigning the boat. For the RAD, first of all we have to add a fourth deck to our three-deck ferry boat. The other three decks require significant alterations. The crew will have different roles, different tasks. They will require training, new equipment. In addition to becoming more efficient, the board is converting to a new case management software system, which is similar to rewiring the entire boat.

Of course, during all of this change the boat does not stop, not for one day. For most of the passengers it's an important voyage. For many of them it's the most important voyage of their life. They are anxious to complete it. Similarly, the government wants a good measure of productivity from its investment in the boat and the crew.

So all of the redesign and restructuring must occur while the boat is working and full of passengers. That's what we're confronting as a board and government institution. For now, planning for implementation is underway, and redrafting our rules and procedures has already begin. This work will accelerate as the legislation comes closer to the proclamation date. We provided a document to the committee yesterday, which is an outline of the board's intentions and plans in regard to the rules.

Having described the immensity of the task, let me also state categorically that I have every faith in the ability of the women and men of the IRB to do the job. The board is blessed with a core of extremely dedicated and talented employees, who will rise to the challenge, as they have done so far during the development of the legislation.

In the slightly more than ten years since its creation, Canada's Immigration and Refugee Board has served as a model for protection agencies around the world. Many foreign courts and tribunals have borrowed or have been influenced by our guidelines, our case law, our policy papers, our country documents, and have frequently sought our assistance in training their own judges and members. A similar quality of work can be found in all three of our divisions.

In concluding, let me say that it is my sincere belief that Bill C-31 will permit the IRB to progress even further toward its constant goal of deciding every case coming before it with prompt efficiency and genuine fairness.

Thank you for your attention. I and my colleagues welcome your questions on any aspect of the bill pertaining to the Immigration and Refugee Board.

The Chair: Thank you, Mr. Showler, for the insight and suggestions in your opening remarks as we look at Bill C-31. We have the next hour to question some of the suggestions you have made and some of your observations.

I will go to our list and I will start with Mr. Bigras, ten minutes, questions and answers. Bernard.

[Translation]

Mr. Bernard Bigras: Welcome to the committee. I have two different types of questions with respect to Bill C-31.

• 0950

First of all, it is clear that Bill C-31 will increase the power of the Chair considerably. This is quite clear, in terms of the performance of board members duties and in terms of the assignment of these duties.

I would like to know what will characterize the vision, the spirit of the chair in this increased role that the Bill will essentially be giving to the board chair. Naturally, there will be an increase in powers. The Chair will have greater control and more opportunities, but how will the spirit of this chair be characterized?

Mr. Peter Showler: Thank you. That is an excellent question. I believe that there are two aspects to this question.

First of all, the chairperson will be authorized to designate the Board coordinating members. Right now, these individuals are designated by Cabinet; this will, therefore, be a new power for the chairperson. It's a question of efficiency. The coordinating members will be responsible for managing the other members of a team. This is about assessing and determining the roles. This is a management duty and it will be much more efficient if the members who are already part of the Board can be designated as the coordinating members.

There is another aspect, and that is the coherence of the case law and Board decisions, because the Board is authorized to designate which Board tribunal decisions will be retained as case law guides. The chairperson already has some authority in establishing guidelines and we have a system of lead cases. The authority will be increased.

As far as coherent decisions are concerned, if there is a lack of coherence, it is possible, especially when a decision is being made by only one member of the Refugee Appeal Division, to designate a decision that gives some clarification on the contentious issues. The legislation can be clarified by designating a body of case law to serve as guidance.

Mr. Bernard Bigras: I have another question with respect to the Refugee Appeal Division. In the second paragraph, you state:

I have no hesitation in stating that single member decisions by the Refugee Protection Division, followed by a review on the merits by the Refugee Appeal Division, is a fairer and ultimately faster and more efficient means of deciding refugee claims.

You seem to be telling us that there will be more efficiency and that decisions will be made faster. What is your assessment based on? Did you conduct an internal assessment to come to this conclusion? How can you state that if the claim is heard by one member alone, it will be fairer? Is there not a risk that it will be less so?

Mr. Philip Palmer (General Counsel and Director General, Legislative Implementation Project Office, Immigration and Refugee Board): We did not conduct a study nor did we do an assessment in the strict sense of the word, however, we made our assessment based on the experience that we have acquired over the years with thousands of cases that have been submitted to the Refugee Division. Indeed, as far as fairness is concerned, we are confident that one decision maker is as effective as a two-member panel.

• 0955

Secondly, the protection afforded as a result of a full appeal by the Appeal Division will mean greater fairness for claimants. This is more effective than appeals to the Federal Court, for instance. These two aspects reassure us that this is adequate.

The Chair: Thank you, Mr. Palmer.

[English]

Mr. Limoges, you have ten minutes.

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

Firstly, I'm quite cognizant of your ferry boat analogy, and I understand the trials and tribulations you'll go through in making these major adjustments, but it seems to me that one of the major things we need to accomplish in the short term is going to be increasing the pace at which we can move people through the system so we don't have situations that are unnecessarily delayed or situations in which an individual is here, has established their life and raised a family, and then finds out that they don't qualify to remain here under the provisions.

Is this legislation going to help to speed up the process, or is it possible that in fact the opposite result could occur?

Mr. Peter Showler: The answer is yes, it's going to help speed up the process. First of all, it will do that particularly in the refugee protection division. There is a large difference between single-member hearings and two-member hearings. The confusions that arise from having two-member panels are extraordinary, simply because every time somebody is seized with a case, or a case goes down in various ways, it creates tremendous complexities to the hearing schedule. In terms of efficiencies, we are going to be able to move cases through much more quickly if we have single-member panels.

We do recognize that of course there is an anticipated added period of time for the persons to go through the second phase, which is the refugee appeal division. But I first remind you that if we have a positive determination rate in the range of 45%, we're discussing perhaps 50% or perhaps 45% of the original group of claimants actually going on to the second phase. So if we speeded up the first phase, that means half the claimants are going to be processed more quickly.

As you will recall, there had been a goal a few years ago to reduce processing time in the first-level decision to six months. We've managed to lower it to nine months. I informed this committee several months ago that with the dramatic increases in refugee flows, we are unable to reduce it further than that until we have the increased resources to address the increased work. As you can appreciate, 23% is a large increase in workload. However, with these increased resources and with the changes to the bill, I am confident we will eventually reach our goal of processing time at the front-end of six months.

In terms of the refugee appeal division, I would like to say—this may be a question later, but I want to say it now, because it's quite important—that we have a goal of processing those claims within 90 days. I want to tell you that's an extraordinary goal. We've looked at the appeal systems of several other countries, and none come close to that. I would not be making the statement if I didn't think we could do it. We are looking for the best members, the best resources, but we think we can do that.

Mr. Rick Limoges: Thank you. That's certainly important to all Canadians to understand.

I represent Canada's southern-most border, and I hear quite often from a lot of people that there's some concern, there's some frustration, that people crossing the border can virtually gain unimpeded entrance to Canada by simply claiming refugee status. They cross the border and claim to be a refugee, whether or not it's legitimate, and then can, in some instances, carry out criminal activity or be a contact on this continent for criminal activity.

Do you experience any of this type of frustration, or are you able to weed out people very early, perhaps even before it gets to you? Are you satisfied that we're able to really avoid that type of problem? Because obviously not everybody who claims to be a refugee is deserving of or needing that protection.

• 1000

Mr. Peter Showler: That's correct. I think there are two issues to consider in response to that. First of all, the new bill contains eligibility provisions that say that certain classifications of persons who are inadmissible due to security issues or criminality issues will no longer be eligible for refugee determination. Of course, that responsibility lies more with the department.

In terms of persons who make their claim, you confront us with a conundrum. They may have committed some crimes, and at the same time they are seeking refuge in the sense that they're saying they fear persecution or serious physical harm of some form elsewhere. Our job is to make that determination. So in terms of weeding them out, it's difficult to do that before making that determination.

Having said that, where there are persons in detention, where there are children, or where there are sometimes, if you will, block problems or identifiable block groups of claimants, we can process them through a priority system. That still means that they're entitled to a full and fair hearing of their claim.

Our job at the end of the day is to be able to tell the minister and the government that this person does or does not have a well-founded fear of persecution. So we are caught between trying to respond to external concerns and at the same time having to do our job, which is a full and fair decision.

The Chair: Thank you, Mr. Showler. Thank you, Mr. Limoges.

Mr. Rick Limoges: Is that my time?

The Chair: Yes. Next week, on Wednesday, I believe, we will be going to your fine city, the border city of Windsor, the most southerly and warmest part of the country.

[Translation]

Ms. Vautour, welcome to our committee.

Ms. Angela Vautour (Beauséjour—Petitcodiac, PC): Thank you for your presentation.

You used the example of a ferry boat when you analyzed how you are going to implement Bill C-31 and continue working at the same time. Does the IRB have both the human and financial resources it will need to effect this transition?

Mr. Peter Showler: This is an excellent question for my colleague, Mr. Bailey.

Mr. Glen Bailey (Director General, Policy, Planning and Research Department, Immigration and Refugee Board): Treasury Board has already given us the resources to begin the preparatory work we have talked to you about. This money will be used, among other things, to hire the staff that we need to make these changes, to review our rules, etc. In addition, we will also be using internal resources. I think that we are in a position to do this.

It must be said that this is a relatively difficult job and the timelines are going to require us to work rather quickly. Furthermore, if the Bill is passed by Parliament, there will be other resources for the Board to help us make the changes and implement the new provisions, just as we sometimes need individuals to perform new duties.

[English]

Ms. Angela Vautour: What is your timeframe to have this implemented? Do you have a timeframe at this point?

Mr. Glen Bailey: We are working on the timeframe of sometime in the next year, but of course this all depends on your decisions and on when it is actually proclaimed. We're hoping we will be ready in the timeframe you give us, but we're thinking it will be sometime around the middle of next year.

Mr. Peter Showler: If I may say, you pass the bill, and we will respond.

Ms. Angela Vautour: Could you give us an approximate figure on the current inventory of cases you have?

Mr. Glen Bailey: Certainly. The inventory of our refugee cases is about 26,000 principal claims. We had indicated the last time we were here that we expected that to be going up this year simply because of the increase in the intake we had identified. We had anticipated last year that we'd have 25,000 new claims and that we would go down in our pending. However, we had 30,000 claims, more or less. Our figures for this year suggest that we are going to be in that neighbourhood, possibly even slightly higher.

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This trend is consistent with patterns we see across the world with globalization. You can see spikes going up and down in different countries, but overall there has been an increase, particularly in Europe, for example. So this is more or less what we anticipated. It's also why we spoke to you earlier about the fact that we would probably need some additional resources to deal with the workload pressures, and we're pursuing those discussions with Treasury Board.

In terms of the immigration appeal division, their claims are up about 8% to 10% this year, which suggests again that we'll be having some workload pressures. Of course last year we had a significant increase in the workload that was related to the detention reviews of the boat arrivals on the west coast. That created quite a workload, because all those people were in detention, and those detention decisions have to be reviewed by decision-makers and the board on a regular basis according to the timeframes that are set out in the current legislation. That will continue.

The Chair: Thank you, Angela.

Mr. Wappel, welcome back to the committee after a sabbatical of about a year or two.

Mr. Tom Wappel (Scarborough Southwest, Lib.): No, it's more like nine.

The Chair: Have you been here that long?

Mr. Tom Wappel: Thank you, Mr. Chair. How much time do I have, five minutes?

The Chair: Yes.

Mr. Tom Wappel: Hello. I have five minutes, so I'll try to keep my questions short.

The Chair: The chair is very lenient, I should tell you, at least on our first day anyway.

Mr. Tom Wappel: Okay.

I want first of all to apologize. I was only named to this committee yesterday, so I'm not up to speed yet. But I have a keen interest in this subject matter and have had for a number of years.

I'd like to ask you a few questions about the refugee appeal division. As I understand it, there will be appeals on the merits. This will be a right, will it not? So anybody who wants to will be able to appeal their case on the merits.

Mr. Peter Showler: That's correct, including the minister.

Mr. Tom Wappel: Do you expect that there will be virtually 100% appeals on all negative decisions?

Mr. Peter Showler: We are planning for approximately 90%. There are always exceptional situations where people become discouraged or for various reasons don't pursue their appeal, but we're expecting quite a high appeal rate, in the range of 90%.

Mr. Tom Wappel: I'd suggest that it will probably be higher than that. So it seems to me that we're creating another level of bureaucracy to deal with something the one-person panels are already dealing with. Do you not anticipate that this is simply going to be another level of hearing that people can go through, since it's going to be, by your estimation, at least 90% on all negative decisions?

Mr. Peter Showler: Candidly, I wouldn't call it a bureaucracy. It's a tribunal.

Mr. Tom Wappel: I can do that.

Mr. Peter Showler: It's in the business of reviewing the first-member decisions. I want to bring it back to what I said before. In my view, rather than having two-member panels, it is a more efficient model of decision-making to have single-member panels and then to have a review of those decisions.

These decisions concern life and death in some situations. There are situations where you don't want to be wrong. We also don't want to be wrong in terms of positive decisions if there's going to be continued abuse of the system. We know that if there's continued abuse, that will simply cause the entire system to break down. So I think it's quite important that these decisions be reviewed for their accuracy in terms of both the facts and the law.

Mr. Tom Wappel: Thank you.

You estimate between 6,000 and 9,000 a year. Is that approximately 90% of all negative decisions today?

Mr. Peter Showler: Plus some anticipated appeals from the minister. Of course, it's within the control of the minister how often she wishes to appeal positive decisions, but we are anticipating that in order to clarify the case law, there will be certain decisions, particularly on central issues, where she will wish to appeal as well.

Mr. Tom Wappel: This is a new division, as you pointed out.

Mr. Peter Showler: That's correct.

Mr. Tom Wappel: Will the money be found for it within your existing budget, or are you going to be getting extra funds for this?

Mr. Peter Showler: I will let Mr. Bailey respond to that question.

Mr. Glen Bailey: The design we have is that it would be done through a reallocation of resources. We indicated earlier the implications of having single-member panels and the efficiencies the board would get not only in terms of processing time but obviously in terms of the way we allocate resources. Our intention is as much as possible to make the two balance out.

There are also other changes in the bill, and those also have resource implications. One has to take a look at this in terms of the overall package. As we go through some of the design elements, we anticipate there may be some short-term costs in terms of the actual implementation of the new system, particularly in relation to establishment of a new registry. But overall, we're confident we're in the right range.

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Mr. Tom Wappel: With respect to the human factor, you expect to take people who are members currently and sign them to the RAD. Is that the idea?

Mr. Peter Showler: Yes.

Mr. Tom Wappel: Or are you going to be looking for more Order-in-Council appointments?

Mr. Peter Showler: No, because with single-member panels we will of course require fewer members than we have—not divided by half, of course, but fewer members—so we will be taking the members from there in terms of assignment to the RAD.

I want to add that part of the efficiency of the RAD, we hope, is we will have members who have experience at the first level. They've already walked in the shoes of the decision-makers. They already have country expertise. So there are many of those decisions they are going to be able to address very quickly, often simply to affirm the decisions where they see that they're clear, well-reasoned decisions, consistent with the facts and law.

Mr. Tom Wappel: Thank you. Thank you, by the way, for your concise answers. I very much appreciate that.

You indicate that there has been a potential problem identified vis-à-vis the independence of the RAD. I take it you agree that the RAD must be independent.

Mr. Peter Showler: Absolutely. It's a separate tribunal. It's reviewing decisions of another decision-making body. It must be independent.

Mr. Tom Wappel: All right. Now, given that, you feel that no further amendments are required in order to ensure the independence of the RAD.

Mr. Peter Showler: That's correct.

Mr. Tom Wappel: Would you have any objections if this committee recommended an amendment to ensure, on paper, the independence of RAD?

Mr. Peter Showler: Without knowing what those recommendations were, it would be difficult for me to comment. I'm simply responding to some of the observations that were sent to this committee, concerns that the RAD should be a completely separate tribunal, separate body. I'm not saying it should not be. Our response is that concerns about independence can be addressed adequately within the requirements of law while the RAD continues to be a fourth division.

Mr. Tom Wappel: But it is clear to you that the RAD must be, and must appear to be, completely independent.

Mr. Peter Showler: That is correct.

Mr. Tom Wappel: Final question, Mr. Chairman, quickly.

Under refugee protection division, your comments indicate that

The Bill proposes that the division become responsible for adjudicating claims to protection based on two new grounds: claims arising under the Convention Against Torture....

Is that a new ground?

Mr. Peter Showler: Yes.

Mr. Tom Wappel: What's the current ground, then?

Mr. Peter Showler: There's only one ground.... At the present time, the refugee division decides whether or not a person is a convention refugee.

Mr. Tom Wappel: Which convention?

Mr. Peter Showler: The United Nations Convention Relating to the Status of Refugees.

Mr. Tom Wappel: Right. So this is a different convention.

Mr. Peter Showler: That's right, it's a different convention.

Mr. Tom Wappel: So you're going to have the convention against torture, and also, in addition to that, this new, personalized risk.

Mr. Peter Showler: That's correct, persons in need of protection.

Mr. Tom Wappel: How much increased workload do you anticipate from that?

Mr. Peter Showler: We expect a very modest, short-term increased workload. Because there are two new grounds, we expect there will be some training involved of our members and of other personnel. We expect in the beginning—in the short-term—there may be some additional hearing room time, simply because there is consideration of three grounds.

We also expect that once our members are more fully trained on the three grounds it will often be possible to go to the most obvious and direct ground, and unnecessary to consider the two others. So I think in the long-run, we could be more effective.

I do wish to remind you of the concept of these consolidated grounds. These are decisions now being made by other persons, in particular the so-called post-refugee class determination. So the concept of the legislation is rather than making these decisions as we do already in three different locations throughout the system, it's far better to consolidate them, and in one hearing.

I have no hesitations in saying right now, from a systemic view of refugee determination, from when they make the claim until they leave the country, this is a far more efficient way of doing it.

Mr. Tom Wappel: But don't you anticipate a greater workload under the IRB?

Mr. Peter Showler: Only in the short-term. I think that once our members are trained to address the grounds, they can actually do it more quickly. There are going to be instances when it's easier to decide whether or not a person is needing protection, and it will be unnecessary to consider the complexities of, for example, the current convention refugee ground. So in actuality, in the end, it may very well prove to be more effective and more efficient.

Mr. Tom Wappel: Thank you, Chair.

The Chair: Thank you very much, Mr. Wappel, for the concise questions, and Mr. Showler for the concise answers.

Jean Augustine.

Ms. Jean Augustine (Etobicoke—Lakeshore, Lib.): Thank you, Mr. Chairman.

• 1015

My line of questioning is more or less parallel to yours, Tom.

I wanted to ask about the right to participate and the role of the UNHCR, as well as the ministerial right. How do you see those roles working within RAD under the proposed legislation? How do you see those interventions taking place? I'd like to know whether at this point in time you are speaking to UNHCR in order to work out any kind of relationship and how that intervention will occur.

My second set of questions has to do with the executive director as public servant versus the present situation and how you visualize this under the new regulation. Something you said earlier twigged for me the whole issue of assignments to district offices and regions within the framework of this new legislation. How do you see this impacting on the operation of the RAD?

Mr. Peter Showler: Those are three separate questions. With regard to the first one, I'm going to ask my colleague, Mr. Palmer, to respond.

Mr. Philip Palmer: With regard to the participation by the UNHCR and indeed interventions by the minister, first of all, we have had discussions about this proposal with both the UNHCR and the department. We understand that discussions are ongoing with regard to precisions that may be brought to this provision by the government. For our part, we believe the intent of the measure to increase and ensure the participation of UNHCR where appropriate is a valuable addition to the system.

Secondly, we have an interest in ensuring that any intervention by UNHCR takes place in accordance with our rules. It is important that this not be a totally unrestricted right. It could potentially cause concerns for our ability to process claims otherwise. But in general, we think this disposition reflects what we understand to be the government's commitment toward the support of the role of the UNHCR.

With regard to the minister's interventions, I think the existing provisions were of some concern to the government. We don't see that there is any reason the department in appropriate circumstances should not make its own decisions about the appropriateness of an intervention. Where the government feels that it has a governmental interest in a refugee protection proceeding, we believe it should have the right to intervene to represent what it sees as being that public interest.

Mr. Peter Showler: Very briefly, with regard to your second question, about the executive director, the Immigration Refugee Board has been an anomaly by having the executive director be a cabinet appointee. The normal course of events for most agencies and tribunals is that person would be a public servant. It allows for managerial continuity, and it seems quite appropriate to us.

With regard to your third question, I would ask my colleague, Mr. Bailey, to respond.

Mr. Glen Bailey: The ministerial intervention is just to indicate that the number of interventions we have in a given year is relatively small. We're talking somewhere in the neighbourhood of 2% to 3% of our cases. We assume that there will be a modest increase in that. We've talked to our colleagues in CIC as to what that would mean in terms of resources. We've sorted out those problems, and we don't envisage that this would be a problem.

Mr. Peter Showler: I'm reminded that your third question regards the appointment to regional offices. I can indicate that the current practice actually is for the cabinet to appoint to particular offices, so it's a matter of formalizing into legislation what is already the practice.

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With regard to assignment to particular divisions, it was felt that it would be more appropriate for the chairperson to take on that function. It will permit me to look at their particular capabilities and to decide where that would be most appropriate. In particular, where it will be crucial is with regard to the appointment to the refugee appeal division. As I said before, we sincerely hope to have our best and brightest appointed to that division to ensure that we provide the kind of prompt, thorough review I have been talking about today.

The Chair: Thank you, Jean.

Next is Mr. Keyes, from the great city of Hamilton.

Mr. Stan Keyes: Thanks very much, Mr. Fontana. Congratulations on your regaining the chair of this fine committee.

I want to thank Mr. Showler, Mr. Palmer, and Mr. Bailey for their interventions to this committee. Please pass along my congratulations to members of the IRB for their past work. Of course, I commend you all on your involvement in the development of Bill C-31.

I'm very encouraged to hear that the process and decision-making will be done in a more timely fashion with the passage of this bill.

I'd like to pursue just one area—and my colleague, Ms. Jean Augustine, touched on it—in order to get a better understanding. As I understand it, the minister or the minister's representative is restricted in the role he or she can play at the refugee hearing under current circumstances, but this particular bill would remove those restrictions. The minister would receive notice of the hearings and would have the same rights, as I understand it, as a claimant in participating in the refugee board hearing.

Did I hear correctly that you said the percentage of hearings would go up 22%, Mr. Bailey? This is another matter I'm addressing.

Mr. Glen Bailey: The number of cases we have right now where there are ministerial interventions is between 2% and 3%. That 2% to 3% represents about 250 cases a year, and we expect that may go up to somewhere between 300 and 400.

Mr. Stan Keyes: That's all.

Mr. Glen Bailey: That's all. So this will not have a major impact in terms of the conduct of—

Mr. Stan Keyes: How do you determine that it will only go up 200 or 300 cases in a year?

Mr. Glen Bailey: In part it's because it depends on the resources of the Department of Citizenship and Immigration and how many personnel they have who would be able to prepare adequately and go into a hearing room.

Mr. Stan Keyes: Let's take it one political step further. Obviously, just about every one of the 301 MPs in the House of Commons has a case in which they have a particular interest and in which they would like the minister to intervene. If you have 301 members of Parliament who suddenly understand that the minister now can participate in this particular refugee board hearing, they are going to bring their cases to the minister and request that the minister or her or his representative now play an active role in the hearing. I would hazard a guess that you're very much underestimating the number of cases the minister will be flooded with to take to the hearing. Am I misunderstanding this scenario?

Mr. Peter Showler: Could I have a clarification? Are you talking about cases before the convention refugee division or the immigration appeal division? It would be a great surprise to me that many members of Parliament would have an active interest in opposing particular refugee claims, which are confidential.

Mr. Stan Keyes: No, not opposing, supporting.

Mr. Peter Showler: Ordinarily, if the minister is going to take a role in that, it would be to oppose the claim. If the minister participated, at that point it moves from being an inquisitorial hearing to an adversarial hearing. I think there is some fundamental misunderstanding. When the minister takes a role, it's because they have some concerns about a particular claimant, that they don't think their claim is well based or they are concerned there are exclusion issues and reasons for removing this person from the refugee process.

Mr. Stan Keyes: But the reverse does not happen, where she would come, and because of the—

Mr. Peter Showler: No, the minister does not come forward to support a particular refugee claimant.

Mr. Stan Keyes: Is that right?

Mr. Peter Showler: That's correct.

Mr. Stan Keyes: Does this open the door for that occurrence, though?

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Mr. Peter Showler: I don't think they've contemplated that to date. They're always open, of course, to submit documents if they have particular concerns. That's all I can indicate to you.

The minister has had some interest in making referrals after initial interviews at the port of entry. They have had an interest in identifying claims that they see to be manifestly founded. That may be what you're thinking about: where in their view and in the view of their officers the evidence is so strong that a person is a refugee that they would like to see it expedited.

I can tell you we already have an expedited process in place. We've given more focus to that in the past few months, and we'll continue to do so. We are very concerned about saving time, and that where somebody has really a manifestly founded case we do not put them through the entire process. We do have an expedited process where we can do an interview and make a prompt decision where it is appropriate.

Mr. Stan Keyes: Mr. Bailey, you mentioned that 2% to 3% is the figure. How many of that 2% to 3%, or 250 cases, do ministerial interventions change? Do you have any figures on that?

Mr. Glen Bailey: Well, it wouldn't necessarily change, because they would participate and bring points of view or perspectives or evidence before the panel in order that they could consider that in their overall decision. So you wouldn't be dealing with a decision going a particular way, which as a result of an intervention would switch another way. It would be part of the overall evidence heard by the panel.

Mr. Stan Keyes: So if we fine-tune it then to.... When I speak of change, I speak of the nature or the length or the quality of the evidence—that kind of change.

Mr. Glen Bailey: It allows the minister to bring to the board or to the panel information that may not have been available to the—

Mr. Stan Keyes: I understand that.

Mr. Glen Bailey: In that sense it improves—

Mr. Stan Keyes: Out of the 2% to 3%, how much is affected by the minister, do you think—of the 250 cases? Is there a quantitative number there?

Mr. Glen Bailey: I'm not sure that one could make a numerical assessment. We would simply observe that we think this is an important possibility in order to help ensure there's coherence and integrity in the system of decision-making and that all relevant evidence or information is actually brought to the panel when they're making their decision.

Mr. Stan Keyes: Thank you very much, gentlemen. Thank you, Mr. Chairman.

The Chair: Thank you, Mr. Keyes.

Mr. Showler, one of the things that Canadians expect of the system is Canadians want to welcome people from all over the world, not only in terms of immigrants and refugees, but they need to understand and know that the system is secure and that those people who are refugees in fact are refugees and are not trying to take advantage of the system.

I know that this bill gives some additional authority. It tries to streamline the process in terms of making refugee determinations. You said that it's taking approximately nine months, from start to finish, to process some of these applications, and you'd like to get it to six months. Some people have even suggested that's even too long to determine a person's fate. While we want to make sure that the system has some integrity that gives the opportunity to the claimant to have all of the appeals necessary, and at the same time be able to process the paperwork, we've gone to single panels, or are suggesting going to single panels. I think you've indicated that this will expedite and make the system that much more efficient.

Do you think it's possible to get even better than six months? Some people have suggested that you might be able to do it in 30 days. We're at nine months, and you'd like to get it to six months. Is that the optimum you feel we should strive for?

Mr. Peter Showler: Well, six months is an average. I've already referred to the expedited process. For the expedited process, where we feel there is strong evidence that the person is a refugee claimant, our goal is to complete those cases within three months. There are also going to be, obviously, some very complex cases, particularly involving exclusion, where the minister is opposing the claim, where it may go longer than six months.

I think it would be helpful for the committee and perhaps Canadians in general to understand what it means to be making a refugee claim. I think it's greatly misunderstood. First of all, there is the complexity of the information we're reviewing.

• 1030

If I can give the committee an example, often the claimant will be coming from let's say one of the many central African countries right now that are undergoing either civil strife or civil wars where there's been a breakdown of borders. Along with that, of course, there's tremendous violence that occurs, often violence caused by several different groups. That is a classic example of someone who appears at our borders and claims fear of persecution. They say if they go back they will be killed, or their husband or their wife or their children have already been killed.

If you consider that set of facts, first of all, sometimes they're people who don't speak either of our official languages; secondly, they're describing events candidly that are not well reported. Our board has the best documentation centre in the world in terms of human rights reports, but I think you all understand that there are events going on in unregulated territories, and it's tremendously difficult to confirm those kinds of events.

As well, you should be aware that in terms of documentation, there are many states now that either are incapable of providing consistent documentation in regard to identity or they're incapable of producing that documentation because there is such rampant bribery within their systems that you can't rely on the credibility of their documents.

It is within that context that we're asking our decision-makers to decide whether this person has a well-founded fear of persecution. There is tremendous complexity to that. First of all, they require legal counsel. They require some time to prepare the information and submit it. For legal counsel we are dependent upon the various provincial legal aid regimes to decide when they are going to provide counsel and when that can come forward.

I can tell you candidly that if it were a case of reasonable complexity, to make a decision that is fair.... And I think Canada should take tremendous pride in the fact that we promise everybody who comes to this border who says they have a fear of persecution that we do not return them from this country unless we are satisfied that they do not have a well-founded fear of persecution. We look at the case on its own evidence, its own merits, and we provide them with an unbiased decision-maker. I must tell you, that's quite extraordinary. There are few systems in the world that actually provide that. It's something we should be proud of. But you do not do that in 30 days.

The Chair: We would agree.

With regard to the role of the refugee appeal division, which is going to be newly created, I believe my colleagues have asked about the RAD and whether or not it is sufficient. You've suggested a couple of amendments to in fact make the RAD system much more efficient. You say that the bill should be amended to enlarge the binding effect of decisions of the three-member panels. Now, the three-member panels, I take it from your introductory comments, would probably be dealing or should be dealing with those complex issues you were talking about, and once there is a determination on that complex issue, that decision should essentially then be followed and adhered to by those single-member panels.

You say you're working with CIC with regard to those amendments. Can you just tell me what kind of an amendment you would require in order to make sure that was covered off?

Mr. Peter Showler: Certainly. I'm going to ask my legal counsel to respond to that question. He's been dealing with the technicalities of it.

Mr. Philip Palmer: The essential issue for us is to ensure that there is some scope to be able to bind other panels with respect to findings on generalized country conditions. Obviously we don't bind on findings of individualized, particularized facts. But for instance issues of whether there is an internal flight alternative in a given country or whether there is availability of state protection to certain classes of persons coming from a country of alleged persecution are matters that do not change radically overnight and do not change from case to case. On those matters we feel that it's tremendously important that we have some body that is able to give guidance to decision-makers, both within the RAD and within the RPD, in order that the inconsistencies that exist now can be ameliorated and so that we can assure claimants before the board that they will be treated alike and have an equal access to a fair determination, and that the result is not solely based upon the predispositions of the member they are before.

That is why we think that broadening this would be an important protection for claimants, as well as an efficiency measure.

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The Chair: Individuals are not eligible to make a refugee claim by virtue of grounds of security, criminality, violating human rights, serious criminality, organized criminality. Obviously the new system aims to protect the system from abuse, and we have that criminality and security check right at the beginning of the system. But at the same time, once someone comes here, while they might not be able to prove to the satisfaction at the first point of entry that they are a refugee, the fact is that they are entitled, before they are sent back, to a risk assessment by the refugee protection division.

Mr. Philip Palmer: Could we clarify that? I think, Mr. Chairman, you're speaking about the pre-removal risk assessment—

The Chair: Right.

Mr. Philip Palmer: —covered in clause 107 of the bill. That would be conducted by the Department of Citizenship and Immigration.

The Chair: Okay. But since the refugee protection division is the expert in refugee protection, and other protection decisions would be consolidated at your board, some people have indicated that perhaps there may be more expertise in the area of the board making that determination, rather than CIC.

Mr. Philip Palmer: Yes. If I can, it perhaps helps to analyse a little bit further. There are two classes of persons who will go before the pre-removal risk assessment. One are failed claimants from the board and repeat claimants that, under the current regime, would have hearings before the board. All of those classes of persons will have already had determinations before the board. They will have had oral hearings, they'll have had a right to appeal to the RAD, and they're at the pre-removal stage. The other group to which you allude is the persons who have been ruled ineligible to be heard before the board.

I don't think it's for us to comment on the philosophy of the government in this regard, but I think it's important to remember that the PRA takes into account not merely the individual conditions of the person relating to human rights risk, as it must do, but it also has to take into account matters on which the board has no expertise: the balancing of the security interests of Canadians; risks to national security that may be posed by persons in those ineligible classes; the risks posed by people who are members of organized criminal societies. Those are matters where, clearly, we have no existing expertise and where perhaps the best place to make those kinds of decisions, that kind of balancing, is in fact to people whose accountability is to a minister who is accountable to Parliament, because those are broad overriding social and political issues.

The Chair: Thank you.

With regard to detention, I find it really appalling that we couldn't make decisions much quicker than having to force people to stay in detention centres for six or seven or eight months while we determine their fate. I'm referring specifically to the landings on the west coast. I know that's a difficult situation. I know that the IRB and everybody's working as quickly as they possibly can to in fact determine, on an individual basis, whether or not there's credibility to those refugee claims. But surely, from a humanitarian standpoint, it must take an awful amount of resources and a lot of frustration on our part, and it would take absolutely months and months and months to essentially keep people detained until we get the system in place that would be able to expedite that process.

I know that we want to make absolutely sure before anyone is either granted refugee status or in fact is deported or removed and sent back without fear of persecution. We know that human trafficking is a problem. The bill talks about punishing people who want to traffic in human lives, which is deplorable. I'm just wondering whether you have any opinion as to how we can better the system to prevent people from being detained for months and at least have a determination of what their fate is, whether or not they're either going to be refugees or in fact they have to be sent back to their country of origin.

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Mr. Peter Showler: I'd be delighted to respond to that question.

One of the original complexities that arises is the fact of detention itself, because when it occurs—as you're aware—the detention is within provincial facilities, not within federal facilities. So we're very dependent upon where the province has the capacity to detain.

In British Columbia, for the marine arrivals there, the majority of the claimants were detained in Prince George. That required the board to virtually relocate to Prince George to undertake those hearings. Of course, it's not just the board and its officials; it's providing legal counsel, because there were no trained legal counsel in Prince George, and there were no trained interpreters as well. So the logistical exercise was quite extraordinary and very demanding.

I do wish to say, though, that in regard to those claimants, the board did comply with its expectations of completing the refugee claims: 95% of them were completed within the six months. The ones not completed had unusual facts in the case. They were delayed for some reasons. That's the first part of your question, and the first issue.

I do wish to remind you, though, that after the claimant is determined to be—or, in the great majority of those cases, not to be—a refugee, their detention continues, because the legal process has not been completed. The majority of them wish to proceed to Federal Court, to seek judicial review of the decisions. While those are continuing, they remain in detention, but the reason they were in detention was because there was concern of what is known as fear of flight—in other words, that they would not attend for the next proceeding, whether it was before the board, or for removal. So that was the basis and the ground for the detention, the fear of flight, and the continuation within the process after the board had made its decision.

The Chair: Will Bill C-31 improve the situation? We're presently operating under the existing act. Will Bill C-31 help and assist in expediting that circumstance? Even though they can still appeal to the Federal Court, the fact is that we've built into Bill C-31 some new appeal mechanisms that may assist and expedite that process.

Mr. Peter Showler: Well, the first place where it will help is we can expedite and we can certainly have priority cases heard more quickly if we have single members. That will give us far more control over our schedule, so we'll get faster front-end processing for priority claims. They will still have the right to go to the RAD, but certainly there they can be priority hearings in the RAD again.

The RAD is going to take exactly the same approach as the refugee protection division. If cases can be heard promptly, where there are priority requirements, they will be heard on a priority basis. We would certainly hope that would be well faster than the three months. But to some degree the schedule is also controlled by the claimant or by the appellant; to the degree that they comply with our time requirements, we can hear the cases more quickly.

The Chair: Okay. Finally, on the immigration division, you indicated that the grounds or powers of the immigration division members are insufficiently spelled out. Obviously you would want those powers spelled out more. Could you give me some idea as to where you think the present bill would need amendment, or where it fails to spell out specifically what those powers would be under the immigration division?

Mr. Peter Showler: Certainly. It's somewhat technical, and I will ask, again, Mr. Palmer to respond.

Mr. Philip Palmer: Mr. Chairman, there are essentially three elements we would like to see addressed.

The first element is with respect to clause 53, where the immigration division, under the bill, would be empowered—indeed, directed—to release a foreign national if it is satisfied that the reasons for the detention no longer exist. Unfortunately, there is no reference there to the narrower grounds of detention that are presently applicable in those decisions, those being a danger to the public, or the flight risk, the fear that the person will not appear for proceedings.

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It would appear to us that at the moment, the broad grounds of detention that empower an immigration officer on entry—those grounds contained in clause 50, where a foreign national can be detained where necessary to complete an examination—are very subjective and very broad. Those would continue to operate. So it would be adding virtually two new grounds for detention and would give no objective basis to the immigration division members That's our first concern.

The second concern is with regard to the authority of the board to order detention. At the moment, on an inquiry, what becomes an admissibility hearing, the immigration division has the authority to order the detention of a foreign national. Losing that power does open us up to a situation where a person is before the board and there is no onus on the minister to request an order for detention, so the issue of detention is separated from the inquiry process and can result in the foreign national being detained for 48 hours. It can result in both an unfairness on the foreign national and duplicative procedures before the board, because the person then has to be brought back. So instead of having one hearing in which both the admissibility portion takes place and any detention issues are looked at, we may have split hearings on different days, and particularly in remote locations, that can create severe logistical problems.

The third thing is that as we read these clauses, there is an onus placed on the detainee for the first time to establish that there are grounds why they should be released, rather than have the onus clearly on the government to establish that there are grounds that warrant the detention of the person concerned.

The Chair: Thank you.

Mr. Showler, Mr. Bailey, and Mr. Palmer, on behalf of the committee, I want to thank you for your counsel, advice, and input.

As we begin to hear directly from the public, obviously they will raise some issues with regard to the IRB and the bill and how we, on behalf of the Canadian people, can ensure that the system is secure and has integrity but at the same time is compassionate and caring. In fact, as the minister indicated, we would want to move toward a much more open immigration and refugee policy, but since we are dealing with some serious criminality matters, at the same time we would want to make sure we give Canadians a sense of security that Canada is not an easy place to come to and reside in if you are a criminal. Obviously, we want to do that.

In the majority of cases, on both the immigration and refugee side, 99.99% of the people who want to come to this country either as immigrants or refugees are very good people and in fact become very good Canadian citizens.

We have a collective job to do. Whether you have someone at the hearings who may want to hear directly, or you get transcripts of our hearings, some questions may arise with regard to the IRB. I hope we can have you back before we do the clause-by-clause review of the bill to give you some impressions the public may have and vice-versa.

I want to thank you all for your participation, and we hope to see you again.

Mr. Peter Showler: Thank you for the well-focused questions, and certainly we are at the committee's disposal.

The Chair: Thank you.

For the committee members, I had hoped that before we adjourned I could tell you that we are travelling, but as of yet the authority has not been given by the House. The only thing I can say is that we are adjourned until next week, and we will be, as per the schedule, in Toronto or meeting in Ottawa. The clerk will keep all of the members advised. Having made a commitment to people in these various cities, I would hope we can travel. But I want to advise you that as of today that motion has not been approved by the House of Commons.

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Let's hope that everybody cooperates and thinks of the best interests of Canada and Canadians before we get into these crazy political games. Thank you very much.

The meeting is adjourned.