EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 19, 1996

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[English]

The Chair: We shall begin. Good morning everyone, and welcome.

First, pursuant to Standing Order 108(2), is a study of the draft agreement between Canada and the United States on refugee claims, which is being done today by the Standing Committee on Citizenship and Immigration.

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[Translation]

I would like to welcome the Honourable Lucienne Robillard, Canada's Minister of Citizenship and Immigration. You may proceed.

The Honourable Lucienne Robillard (Minister of Citizenship and Immigration): Let me begin by saying how pleased I am to accept your invitation and that of the members of the committee to come here and discuss this matter with you.

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I have several officials from my department here with me today. They are Mr. Raphael Girard, Assistant Deputy Minister, Operations; Mr. Gerry Campbell, Director General, International Region; Mr. Craig Goodes, Director, Asylum; and Mr. Daniel Therrien, Senior Counsel. We are here to answer all of your questions.

Our focus of concern this morning is the draft preliminary agreement between Canada and the United States on sharing responsibility for asylum seekers.

The preliminary agreement was drafted after an accord was reached between President Clinton and Prime Minister Chrétien in February 1995. As you may recall, as part of the February 1995 Shared Border Accord, the leaders of the two countries undertook to conclude a bilateral agreement on sharing responsibility for asylum seekers.

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Therefore, last November, we released the text of a draft preliminary agreement between the government of Canada and the United States to give all stakeholders an opportunity to express their views about this document. We are here today as part of this ongoing consultation process.

It is important to clearly understand the circumstances which led to this agreement. As you know, any person who arrives at one of Canada's border points can now make a claim for refugee status, regardless of whether that person had the opportunity to seek asylum in other countries that he may have passed through before entering Canada.

On average, one in three refugee claimants arriving in Canada today is transiting through the United States. I would remind you that the United States have the same obligations that we have when it comes to providing protection to refugees and offering a fair and equitable refugee status determination system.

Bearing this fact in mind, we made our objectives very clear in the draft agreement.

These objectives fall into two major categories. On the one hand, we want to provide protection for true refugees by spelling out how responsibility will be shared between Canada and the United States with respect to the refugee status determination procedure. At the same time, we want to maintain the public's confidence and strengthen the integrity of refugee status determination systems in North America by ensuring that refugee status claimants receive a full hearing in either one of the two countries, but not in both. That is very clear.

This draft agreement is founded on one basic principle, that is on the rule of the country of first arrival. This principle holds that refugee claims should be decided by the country in which the claimant was first physically present, unless the refugee claimant is only briefly in transit in that country or is seeking to be reunited with members of his family.

It is very important that the members of the committee understand - this is the basic principle underlying the agreement - that the protection sought by the refugee status claimant must be granted by the claimant's country of first arrival when it already has a refugee status determination system in place.

I would remind you that the UN High Commissioner for Refugees has already recognized the value and legitimacy of agreements respecting the sharing of responsibility, provided access to a fair determination process is maintained.

I refer you to a document entitled The State of the World's Refugees, 1993: the Challenge of Protection, in which the High Commissioner states that all persons are entitled to seek asylum, but not to choose the country that will grant them that asylum. This is a very important international principle.

As a country, we are committed to taking in refugees and to extending this international protection, but we have a very large country, the United States of America, for a neighbour. In this cooperation agreement that we are thinking about signing with the United States, we want the principle whereby a person seeking protection must first make a claim in the country of first arrival to be upheld.

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Of course, the United States' refugee status determination system is also recognized by the UN High Commissioner. International standards governing refugee status determination must be met and Canada and the United States are both recognized as countries that meet these standards and, in many ways, surpass them.

The preliminary draft agreement therefore rests on this fundamental principle. Undoubtedly, there are various provisions in the agreement that your committee will wish to examine in detail.

However, I would like to point out that the draft agreement guarantees access to a full and fair adjudication system. It spells out the duties of the party responsible or required to admit a person; each side maintains full discretion insofar as examining claims is concerned; transfers to a third country are strictly controlled. Therefore, a number of guarantees are in place for persons claiming refugee status, and the provisions of the draft agreement will be implemented gradually.

We fully realize that this will be the first time that Canada signs an agreement of this nature. Accordingly, we have opted for the graduated implementation of the agreement's provisions and for the necessary refinements to be made as the situation evolves. Moreover, provision has been made for a mandatory review of the agreement's terms and operations one year after the signing date.

It is important to note that the agreement allows for exceptions in the case of certain individuals. We made a decision to provide for these exceptions after consulting with concerned agencies. Exceptions have been made for persons who have been in transit for only a brief period of time in a country, for persons who have immediate family members in one of the two countries and who wish to be reunited with them, as well as for unaccompanied minors.

In addition to these exceptions, either party may at its discretion for humanitarian or other reasons decide to examine the claim of a person seeking refugee status.

The terms of the draft agreement were made public last November. We consulted with the UN High Commissioner for Refugees as well as with non-governmental agencies. The majority of the stakeholders involved responded favourably to our request for consultation. The UNHCR issued some very specific recommendations concerning the agreement and we were happy to have its input given its expertise in this area.

At the NGO level, a symposium was held at the Carnegie Institute in Washington. In December, we also held round-table talks with NGOs in Montreal and in Toronto, while another meeting took place in February in Ottawa. In particular, the Canadian Council for Refugees presented us with over 26 recommendations.

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Our draft agreement reflects many of the recommendations - in excess of 15 - of the Canadian Council for Refugees, notably as regards exceptions to the first arrival rule, family ties other than those with the nuclear family which may be considered relevant, guaranteed access, both to claimants within a country and to those at the border, legislative protection extended to the treatment of personal information and the strict criteria governing transfers to a third country. There is also a stipulation that some legal obligations flow from the agreement. Therefore, many of the recommendations made to us were retained and incorporated into the draft agreement that you see here.

Talks are continuing on a regular basis both with the High Commissioner and with NGOs. In the coming weeks, we intend to discuss the possibility of the High Commissioner playing a more active monitoring role when the agreement takes effect. We also intend to work on ways of enhancing the guarantees against transfers to third countries and also to incorporate human rights principles into the preamble.

That is where things stand as of mid March. Talks are presently continuing with the various interested parties and with US officials.

Discussions are scheduled to continue throughout March and April and I hope to have the final recommendations ready for Cabinet toward the end of April - everything will depend, however, on the outcome of the negotiations - if we are to sign an agreement in the coming weeks.

This being said, the work undertaken by your committee today should help to improve the process and the draft agreement and we look forward to your recommendations. My officials and I are now prepared to answer your questions.

The Chair: Madam Minister, I want to thank you for responding so quickly to our request. The Minister has to leave at 9:50 a.m. for a Cabinet meeting. Therefore, I will limit the questions to five minutes. We will start with the Official Opposition.

Mr. Munez.

Mr. Nunez (Bourassa): Congratulations, Madam Minister, on your appointment. I am familiar with your background, in particular with your experience as a social worker. I hope that at as result of this, you will show a great deal of compassion and generosity toward refugees.

First of all, I must deplore the lack of cooperation on the part of your officials with the Official Opposition. Several meetings have been held with the Saudis and we were not invited to attend them. My assistants contacted your senior officials, but we were never able to get together. We expected to have a briefing as Official Opposition, but it didn't happen.

Secondly, I must also criticize the fact that only six hours in total are being devoted to such an important document. Many organizations want to testify and will be unable to do so. We expected a more in-depth consultation process in the case of such an important document.

Thirdly, there has been talk of this agreement for ten years. When the Liberals were in opposition, they were highly critical of the Conservative agreement of the day and demanded, before Canada signed the agreement, that the United States and Canada harmonize the protection features of their respective refugee determination systems. This is an excellent principle, one which the Official Opposition agrees with today. As you know, the level of protection afforded claimants is declining in the United States. Congress is currently discussing a new bill, the Simpson bill, which would make it even more difficult for a person to claim refugee status.

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Do you feel that the two countries, Canada and the United States, offer the same level of protection to asylum seekers? Or do you believe, as I do, that Canada affords slightly more protection than the United States? That is the danger inherent in this agreement.

Mrs. Robillard: I can understand very well the concerns of the Member for Bourassa. If we compare closely the two refugee status determination systems, we will certainly find some differences. The same would be true if we compared them to those in place in a third or a fourth country.

The important question to ask ourselves is whether the United States meets international standards in the area of refugee status determination. The High Commissioner advises us that the United States does comply with international standards. Indeed, he believes that the United States, like Canada moreover, meets and even exceeds in many cases these standards.

Therefore, our two countries do meet international standards. I don't have to tell you that we are monitoring very closely the direction in which the U.S. system is heading. We were very pleased to learn in recent months that the United States had decided to follow Canada's lead in issuing refugee status determination guidelines for women persecuted because of their sex. You realize that these guidelines were a first for Canada. The United States has now taken similar action and issued the same guidelines.

In short, the two countries meet international standards and this has been confirmed by the UNHCR.

Mr. Nunez: These international standards are quite vague. The criteria are very low and each country interprets the convention in its own way. I would just like to note in passing that the United States has not signed the Convention relating to the Status of Refugees, only the Protocol.

Do you favour assigning to the UNHCR the role of monitoring the implementation of this agreement? Otherwise, how are you going to ensure down the road that the United States is complying with all of the standards set out in the agreement?

Mrs. Robillard: The answer is yes. We have been working from the beginning with the High Commissioner...

Mr. Nunez: But there is no provision for this in the agreement.

Mrs. Robillard: No, but this is only a draft agreement. We would be amenable to spelling out in the agreement, if necessary, a role for the High Commissioner in monitoring the implementation of the agreement. We have no problem with that.

The implementation process will have to be monitored closely and, in one year's time, we will have to see whether refinements need to be at that time to the draft agreement. I think that Canada is proceeding very cautiously in an effort to ensure that all persons concerned receive the necessary protection.

The Chair: Mr. Nunez, we will get back to you, time permitting.

Ms Meredith.

[English]

Ms Meredith (Surrey - White Rock - South Langley): Thank you, Madam Chair.

I want to congratulate you on your appointment to the new portfolio.

My riding is in the greater Vancouver area, so this is an issue that has been of great concern to people who live in the metro Vancouver area.

Because of the shortage of time, I'm going to move to one of the questions I'm most concerned with. You are limiting the numbers that will be dealt with under this agreement over the next few years. I understand that you want to gradually get into this agreement, into the exchange of refugees. You've limited it to 500 claims. How are you going to select those 500?

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[Translation]

Mrs. Robillard: This is part of our cautious approach to implementing the agreement. That's why you see a ceiling for the first year, even if this means adjusting things as we go along. The first 500 claims will be taken into consideration.

Perhaps my official, Mr. Goodes, has something further to add to this.

[English]

Mr. Craig Goodes (Director, Asylum, Department of Citizenship and Immigration): As Madame Robillard indicated, the cap will be implemented on December 1, 1996, according to the draft as we've negotiated it to this point. When we hit 500 returns in either direction under the cap, then the cap will have been reached and we will cease any further application under the terms we've negotiated at the moment. There is a provision for re-examination of the cap in the summer of 1997, as well as a possible renegotiation.

Ms Meredith: My understanding then is that what we're dealing with are the numbers - the individuals who are already in the system, who have already been identified as people who are seeking asylum in both countries. We're dealing with an existing group of names. Is it the first to come of those, or will they be prioritized? How is Canada going to decide which 500 individuals or applicants it is going to be using initially?

Mr. Goodes: These will be people who will be arriving at the port of entry subsequent to December 1, 1996.

Ms Meredith: So these are people who are not yet in Canada or in the United States but will be new arrivals after 1996?

Mr. Goodes: Effectively, they're new arrivals. These people may very well currently be in Canada or in the U.S., but they will not have come forward seeking a claim as of yet.

Ms Meredith: Do you have statistics on the number of individuals who are claiming refugee status in both countries, and can you provide them for us?

Mr. Goodes: We have a good statistical record of those people who come to us from the United States and seek to make their claim in Canada.

To answer your question specifically, we don't have a good statistical record of double claimants. To this point there hasn't been a particular benefit to the gathering of such data, since people are basically allowed to claim in both countries. The other problem we would see in trying to collect such data is one of identity. It wouldn't suit the needs of the individual who may have claimed in the U.S. to subsequently properly identify himself to us. So the gathering of such data is very problematic.

Ms Meredith: Thank you.

Do I have more time?

The Chair: Yes, you do. You have a minute. I'm being very flexible.

Ms Meredith: Thank you, Madam Chair.

I must tell you that I think this is a good move. I've talked to individuals in the system and people who deal with it, and they feel there is a need to put the onus on individuals to claim refugee status at the first country, the first point of entry. So I congratulate the government on looking at this and forging ahead on the issue.

There is one thing I would like to clarify, though. You've indicated that you have already met with NGOs and that they've already been large contributors to the discussions that took place. If I have gotten the numbers correctly, the Canadian Council for Refugees made 26 recommendations and over 15 of them have already been reflected in this document.

Mrs. Robillard: Yes, that's true.

Ms Meredith: So do you feel you've had extensive consultation with those advocates for the refugee individuals and organizations?

[Translation]

Mrs. Robillard: I would say that this has been the case since the beginning. It is not every day that the government agrees to publish a bilateral preliminary draft agreement. Our reason for so doing was to give various groups an opportunity to express their views about the document.

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Following the draft agreement's release, many representations were made to us. We attended a symposium in Washington, round tables in Montreal and Toronto and another meeting in February. There is still room for improvement today. If we must make changes to the draft agreement, we are prepared to hear additional recommendations.

[English]

The Chair: Mr. Dromisky.

Mr. Dromisky (Thunder Bay - Atikokan): Thank you very much. I'll be very brief.

The United Nations High Commissioner for Refugees supports the principle that people can have the right to seek asylum, but they do not have the right to pick and choose. As a result, I'm a little concerned about the process. Maybe I can get some clarification here.

It is a fact that over 90% of the planes and boats that come to North America land in the American ports and airports. If that's the first destination, will bureaucrats adhere to the basic principle of this bill and prevent people who want to come into Canada through the United States from doing so? Is that possible?

[Translation]

Mrs. Robillard: You are referring to the exceptions provided for in the agreement. A person who is merely passing through the United States on his or her way to Canada will be eligible. These cases will be examined in Canada. However, it must really be limited to cases where the person is in transit in the United States.

For example, the draft agreement stipulates that where a person is travelling by air, the allowable transit time will be approximately 48 hours, whereas if that person is travelling by sea, the transit time will be ten days. There is no problem in cases where the person is merely passing through the United States on his way to Canada. That person will be welcomed here and his refugee claim will be examined here.

The other exception is in the case of a person who wants to come and be reunited with members of his immediate family in Canada. Even if that person's country of first arrival was the United States, that person will be allowed into Canada.

As you can see, despite the fundamental principle whereby the country of first arrival is the country in which a person must seek asylum, we have tried to include exceptions to address the problems that you have mentioned.

[English]

Mr. Dromisky: Thank you very much.

The Chair: Are there any other questions from the government side?

Since we have three minutes left, I will take another question from Mr. Nunez.

[Translation]

Mr. Nunez: I don't believe you answered my previous question. I asked you whether you agreed the level of protection afforded by the United States was inferior to that offered by Canada. Undoubtedly, you recall the mass refoulement of Haitians and Cubans who were not entitled to hearings. In my opinion, the level of protection is vastly inferior in the United States. That is the chief criticism voiced by the Saudis.

You stated that you had engaged in broad consultations. How do you explain the fact that all Saudis in Canada are opposed to this draft agreement? It would also appear that the U.S. Administration is divided on this issue. Given these opposing views, why are you so anxious to sign this agreement as early as April?

Mrs. Robillard: Let me state a hypothetical case. You ask me why NGOs, Canadian as well as American ones, are opposed to the draft agreement. Perhaps they will come before this committee during these hearings to explain their position to you.

Personally, I believe the NGOs disagree with the principle underlying the agreement, namely the principle of the country of first arrival. As I said, it is the principle that underpins the agreement. We recognize that we must provide international protection to all persons claiming refugee status. We are basing our actions on the principle whereby a person must claim refugee status in the first democratic country in which he arrives.

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Basically, we are trying to extend some protection to these individuals while safeguarding at the same time the integrity of the system.

NGOs disagree on principle with the agreement, but you will certainly have an opportunity to take this matter up with them.

The Chair: There is time for Ms Meredith to ask one question.

[English]

Ms Meredith: I would like to know where the protection is for Canada if individuals have the ability to arrive in the United States on their way to Canada. What is the timeframe we're talking about? Would they arrive one day and the next day catch a plane to Canada? Would they catch a plane to Canada after three months? What kind of timeframe are we talking about in transition to Canada from the country of origin?

Mrs. Robillard: If it's by plane, the agreement says 48 hours. If it's by another way, it's no more than 10 days.

The Chair: I would like to thank the minister for coming before the committee. We appreciate the speed with which she came and the information she provided this committee.

I would ask the officials to stay in case there are any other questions by the members of the committee. Our next witnesses have arrived. Are there any other questions for the officials of the department?

[Translation]

I believe the Minister has to leave now. Thank you very, Mrs. Robillard.

Mr. Nunez: Let's discuss the costs of administering the proposed agreement. Who will be responsible for administering it? Will this responsibility rest with officials, a joint agency or a secretariat? If disagreements arise over how it should be interpreted or if certain persons are sent back to the other country or vice versa, who will make the final determination?

As you know, relations between Canada and the United States are not excellent in every area, particularly as regards the NAFTA. How do you propose to administer this agreement, particularly in the event of disagreements?

Mr. Raphael Girard (Assistant Deputy Minister, Operations, Department of Citizenship and Immigration): The Department of Immigration will oversee operations. Our border officers will be trained and will be issued guidelines for the refugee status determination procedure. A team working with Mr. Goodes at the Department's head offices will review the claims and administer the process.

Mr. Goodes: Basically, the issue here is a person's eligibility to make a claim. The Immigration Act already makes provision for this and the necessary infrastructure is, therefore, already in place.

Mr. Nunez: Yes, but in the event of a dispute, who will have the final say? Will there be an adjudicator? If the United States and Canada each have their own interpretation, who will resolve the disagreement?

Mr. Goodes: With respect to eligibility, a system is already in place to determine this. For example, if officials at the border have questions about a person's eligibility, they consult a supervisor who, in turn, can consult his director. The administrative system is already in place to resolve these problems.

The Chair: Have you something further to add to that, Mr. Girard?

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Mr. Girard: Article 13 of the agreement provides for discussions between the two governments on the implementation of the agreement and on any difficulties that may arise in its application.

Mr. Daniel Therrien (Senior Counsel, Legal Services, Department of Citizenship and Immigration): I have one more comment to make. The agreement is based on the general principle whereby the country responsible is the country of first arrival. Determining which country that is will be a relatively simple process.

Disputes could arise over the application of the exceptions to the first-arrival rule. The agreement stipulates that the two countries must be satisfied that the exception applies. Therefore, the country responsible for examining the claim must be convinced of its responsibility in this matter.

Therefore, for the exception to apply and for Canada to be deemed the country responsible, a Canadian official must be satisfied that the case should be examined in Canada; otherwise, the claim must be reviewed by the United States.

[English]

Ms Meredith: I want to go back to something Mr. Nunez brought up. You feel that the infrastructure is already here. Are you telling us that there will not be any additional costs for implementing this agreement?

Mr. Girard: The net result should be a reduction in costs, because the current process admits to the determination of refugee status anyone who makes a claim. The result of this agreement will be a reduction in the number of people permitted into the system who arrive indirectly, who come to Canada via the United States. The process for determining that will be a great deal simpler than a full determination of refugee status. So the cost to the taxpayer should in fact decrease.

Ms Meredith: Do you have the numbers this is going to pick up? When you say that there will be fewer people making applications, do you have an idea of what numbers this agreement will eventually be dealing with?

Mr. Girard: You have to estimate two things. One is the volume of people whom we, for instance, could return to the United States under the provisions of the agreement. That is kept at 500.

Whenever you implement a regime such as this, there is a deterrent effect on others, so the net result could be greater than 500. How much greater is difficult to say. Some groups will continue to use that means of arriving in Canada because that's the only way they can come. Others have options. Others will proceed via Europe, via Asia, and via the Caribbean countries and therefore will avoid the screen that will exist as a result of this agreement between Canada and the United States.

Ms Meredith: Is the Canadian government looking at agreements with other countries, say Britain, where there might be other conduits that refugee claimants would be coming through? Are we looking at a European agreement as well, or are we looking just at this American agreement with Canada?

Mr. Gerry Campbell (Director General, International Region, Department of Citizenship and Immigration): The answer to that is no. There has been speculation that the Americans were looking at an agreement with Mexico. There's no indication that's the case. Mexico is not a signatory state and we are not negotiating an agreement with any other country or group of countries at this point, nor do I expect that's likely in the near future.

Mr. Collins (Souris - Moose Mountain): To go back to a question Mr. Nunez raised - and I'm sorry that I stepped out for a minute - if I'm correct he said something to the effect that he had approached department officials but was not able to make that arrangement.

Is that a fair comment? If so, then I would like to know what problems may have arisen that created that kind of situation.

Mr. Goodes: I can speak to that, because I was the official with whom Mr. Nunez's office sought the briefing.

I remain at the disposition of Madame Barraza, who I believe made the original request. Those arrangements are now being made through the minister's office for departmental officials. I have been in fairly close contact with Madame Barraza on that.

Mr. Collins: I just wanted a point of clarification, and that's what I got.

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I commend you for the process, but I have a question with regard to it. I hate to speculate, but as you go through and you have this 500, I perceive that then you will move up in numbers, because there's some efficiency and some saving and there's some net result for both. I think Ms Meredith was mentioning something about this.

How many more do you expect you might see? Do you have some kind of a short- and long-term figure that we might have some projections about?

Mr. Goodes: I think, as Mr. Girard was saying, in the longer term one has to look at a certain discouragement factor whereby people whose intentions may be more along the lines of migration than refugee protection will simply not come. I think in terms of the numbers we're aware of now, it's difficult to quantify.

The northbound traffic into the Canadian system is relatively easy to identify, and the interesting data there is that approximately a third of the people who went through our refugee claim system do come to us via the U.S. That relative figure of one-third seems to hold, regardless of what the absolute figure is. The southbound traffic is much more difficult to quantify, because it's a much more traditional, clandestine kind of traffic, where people only go into the refugee claim system once they've been detected in the U.S. without status.

So there is a difficulty in quantifying that, but we've put a figure at around 5,000 based on border patrol detections and things like that. Given that on both sides of the border we all recognize as well that not everybody who is liable for return will be returned by virtue of some of the exceptions we've identified, and given that it still remains a product of negotiation or something to be negotiated, it's really difficult to put a firm figure on it.

The Chair: Thank you.

[Translation]

Mrs. Gagnon, the final question is yours.

Mrs. Gagnon (Québec): I have a question which I hope will further my understanding of the draft agreement.

Earlier on, the minister remarked that the groups with which you consulted disagreed with the principle underlying the agreement. I submit that when people defend different principles, they are really defending their own interests.

Could you explain to me in detail which interests these groups are defending? For example, why shouldn't a refugee be allowed to choose the country in which he will seek asylum? This draft agreement reflects a complete change in attitude.

What is the reason for this change in attitude or shift in principle?

Mr. Girard: There is no shift in principle. The principle is already entrenched in international law which spells out the obligations of countries under the Geneva Convention.

In the case of asylum seekers, the issue is one of extending international protection to them. It has nothing whatsoever to do with immigration procedures. That is why well-meaning countries apply procedures to fulfil their obligations under the Geneva Convention and why they require claimants to prove that they are genuinely in need of protection. There is much more involved here than simply choosing a country for immigration purposes.

The government and a number of NGOs have fundamentally divergent views where this issue is concerned. That has been true for many years. The same debate took place when the current legislation was under consideration.

Mr. Therrien: I would add that in international law, the right to choose is non-existent.

Under the Geneva Convention, asylum seekers do not have the right to choose the country that will process their claim. Under the Convention, countries are prohibited from returning refugees to countries where they risk persecution. By returning persons to the United States, a country that complies with the Convention, so that their claims can be heard there, we are complying fully with our international obligations under the Geneva Convention.

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The Chair: I would like to thank Mr. Therrien, Mr. Goodes, Mr. Girard and Mr. Campbell. Until next time, thank you very much.

[English]

I'll now invite Mr. Yilma Makonnen, from the United Nations High Commissioner for Refugees, to please come forward.

Mr. Makonnen, I hope I didn't mispronounce your name. Please correct me if I did.

Mr. Yilma Makonnen (Representative for Canada, United Nations High Commissioner for Refugees): Thank you, Madam Chairman, I assure you my name was correctly pronounced.

The Chair: Thank you. Please begin when you're ready.

Mr. Makonnen: Madam Chair, hon. members of the standing committee, ladies and gentlemen, the office of the United Nations High Commission for Refugees appreciates this opportunity to address the standing committee on citizenship and immigration on the subject of the preliminary draft agreement between Canada and the United States regarding refugee claims. At the outset we wish to stress the fact that UNHCR's mandate, its very raison d'être, is to provide international protection to refugees and to seek durable solutions to their problems. International protection involves, among other things, promoting and safeguarding the rights, security, and welfare of refugees, through both direct operational interventions and the development and consolidation of international legal norms and principles.

The United Nations High Commissioner for Refugees office in Canada, as you are aware, is charged with the responsibility of ensuring that international standards established for the treatment of refugees and asylum seekers are respected. It is with deep appreciation and gratitude that we once again reiterate that Canada has faithfully and consistently been carrying out its obligations under the 1951 United Nations refugee convention and 51-67 protocol. In fact, Canada has proven itself to be a champion of progressive development of refugee law through its highly sophisticated status determination procedure and liberal interpretation of the refugee definition.

The guidelines on women refugee claimants fearing gender-related persecution and the new guidelines on refugee claims related to civilian non-combatants feeling persecution in civil war situations are just a few such examples in recent Canadian achievements. We are confident these two instruments will have a wide impact in many parts of the world and hence will contribute to the better protection of refugees globally.

Canada's generosity in the provision of means for material assistance to refugees in many parts of the world and the exemplary humanitarian leadership it demonstrates within UNHCR's executive committee and the United Nations General Assembly deserve underlining here, of course with the deep appreciation of my high commissioner, Madam Ogata, who continues to rely on the sustained and unfailing support of the government and the people of Canada.

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To turn to the item before the standing committee, Madam Chair, permit me first of all to offer some observations about readmission agreements in general before commenting on the preliminary draft agreement between Canada and the United States.

A number of readmission agreements are in existence, and they generally focus on the return of nationals, contracting states, or other illegal aliens within their respective jurisdictions. Such readmission agreements usually do not necessarily take into account the special situation of refugees and asylum seekers.

With increasing integration of European policies in many sectors during the 1980s, the question of harmonization, national asylum policies, and refugee determination procedures assumed critical importance. This harmonizing trend eventually led to the Shengen and Dublin agreements, in 1985 and 1991 respectively.

The Shengen and Dublin agreements are the two main readmission agreements that deal with asylum seekers. These two agreements contain provisions determining which of the contracting parties is responsible for examining asylum claims made in one of the member states and therefore respect the principle that each individual asylum request will be examined and that persons found to be refugees will receive the protection they require. In this manner the risk of orbit situations and of refoulement is minimized. Furthermore, these two agreements refer explicitly to the obligations deriving from the 1951 refugee convention and its 1967 protocol.

It should, however, be noted that despite the positive intentions of the agreements, Europe's effort in this regard has at times proven negative in the way these agreements are implemented. The harmonization of the procedures of different European countries in particular has proven to be problematic.

In concluding our observation on readmission agreements in general, we wish to state that UNHCR does not in principle object to the signing and implementation of readmission agreements. Such agreements among states in the aforementioned context we believe could enhance the international protection of refugees and asylum seekers by providing a clearly defined system for responsible and positive management of asylum applications. We are of the opinion that this could also reduce the misuse of asylum procedures, in particular multiple claims, as well as minimize the risk of the destabilizing effect of irregular movement of refugee claimants.

In this regard, however, we wish to stress the fundamental importance that in such agreements certain safeguards are maintained and states' responsibility for examining asylum requests are clearly identified, to avoid refoulement and orbit situations. These safeguards include but are not limited to the following.

First, the readmitted person should have an effective right to enter and remain in the country of first asylum and have a viable chance to apply for asylum. Second, a readmitted asylum seeker should be protected against refoulement. Third, readmission agreements should clearly designate the state responsible for examining the asylum claims. Fourth, readmitted refugees and other persons of concern should have access to durable solutions.

About the preliminary draft agreement between Canada and the United States, we wish to state at the outset that the high commissioner attaches great importance to this agreement being negotiated between two of the most important proponents of the international system of refugee protection. We are also aware that this agreement will undoubtedly set an example for similar future accords and could have a significant impact on efforts worldwide, to ensure that those who are in need of protection will receive it.

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We are appreciative of the consultation the two governments have so far afforded UNHCR on this draft agreement. We also appreciate the present opportunity to express our views before this standing committee.

As early as 1991, Canadian authorities informally approached the UNHCR to seek our views on the possibility of a readmission agreement between Canada and the United States. It will be recalled that in August 1992, in our statement to the legislative committee studying Bill C-86, we offered our general perspective on readmission agreements, in anticipation of the proposed agreement between Canada and the United States at the time. On that occasion we stated that the first-country-of-asylum concept may be applied consistently with UNHCR executive committee conclusion 15, concerning refugees without an asylum country.

Conclusion 15 mentions, inter alia, that returns should take place only when the first country of asylum is safe and agrees to readmit the person. If the refugee claimant has a justifiable fear of persecution, or if his safety or freedom are in danger in the first country, he should not be returned.

Furthermore, if the claimant has strong links to the state where he is currently present, or he puts forth other compelling humanitarian reasons for not being returned to the first country, the state should admit the person to its determination procedure. Conclusion 15 stipulates also that the intention of the asylum seeker as regards the country in which he wishes to request asylum should, as far as possible, be taken into account.

About this preliminary draft agreement, UNHCR had an opportunity to review the text and also had an occasion to exchange views with the Canadian and the U.S. joint delegation in November 1995 at UNHCR headquarters in Geneva. Subsequently UNHCR submitted to both governments detailed, constructive observations on this preliminary draft agreement for their consideration. A summary of those observations was later reiterated in an address by the head of our North American unit at the Carnegie endowment symposium in Washington on December 11, 1995. Our comments on the one hand acknowledge the strengths of the draft text and on the other hand outline some of our general concerns.

Madam Chairman, without getting into too many details, I will attempt to highlight here the most important points. First, UNHCR has acknowledged that the drafters of this text did take into consideration many of the fundamental principles of international refugee law and explicitly committed the contracting parties to uphold these principles. In fact, many of our observations focused on strengthening the preliminary draft by reiterating and highlighting even more the language of the provisions from various executive committee conclusions on international protection contained in the draft. Some of these executive committee conclusions emphasized in the preliminary draft included, for example, conclusion 8, on fair treatment of asylum seekers, conclusion 15, for refugees without an asylum country, conclusion 58, on problems of refugees and asylum seekers who move in an irregular manner, and conclusions 71 and 74, on measures, agreements, and safeguards regarding persons in need of protection.

The objective of such an exercise was to further refine the language as much as possible so the final text of the agreement respects international refugee law concepts and terminology and therefore creates a positive precedent in this regard.

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Secondly, regarding UNHCR's general concern, we expressed our preoccupation with the possibility of certain categories of cases being accepted in one country where UNHCR would also be of the opinion that such cases qualify for refugee status, but which could be rejected in the other countries. This scenario may occur in certain situations as a result of the discrepancies between the two procedures.

While we acknowledge that the premises of the agreement in those national refugee status determination procedures meet the general, recognized international standards, we recommended that potentially difficult cases that can pose problems be carefully worked out. In this regard we welcome the possibility of further consultation with the two respective governments in order to address issues and the potential problems that may arise.

Thirdly, closely linked with our second observation above, we expressed our concern regarding a possible risk of lowering of procedural safeguards for asylum seekers. While we stress harmonization of refugee determination procedures, we also emphasize that this process should not lower the common denominator regarding procedural safeguards and the due process considerations in a determination system. In this regard we cannot help recalling the negative experience with the European agreements mentioned earlier.

Fourthly, consistent with the concerns raised in the past by the UNHCR branch office for Canada and also by the branch office for the United States in Washington regarding the application of the exclusion clause, we pointed out that from our perspective nobody should be ineligible to pursue a refugee claim. All asylum seekers in need of international protection should be allowed access to a refugee determination procedure, even if upon evaluation of his or her respective case this individual appears to fall within the exclusion clause. That's not considered to be deserving of international protection. We believe that unless a process for weighing the merits for inclusion or exclusion takes place, a refugee who may not fit the profile of the exclusion clause of the 1951 refugee convention may be refouled.

The issue of exclusion without consideration first of inclusion has been raised by the UNHCR branch office for Canada before this committee in its statements on Bill C-44 on November 29, 1994, and in its statements on Bill C-86 on August 11, 1992.

Fifthly, we pointed out that the third-country issue is an inherently problematic one. Although the joint Canadian and United States delegation explained to the UNHCR that the provision of this draft text regarding the issue was elaborated to create some safeguards in returning refugee claimants to a third country without any such agreements being considered for the time being, the fact that this issue is included in the preliminary draft agreement makes us take notice.

The Chair: I'm sorry, but you've already had 20 minutes. Could you wrap up in one minute?

Mr. Makonnen: Certainly I will.

Various policy questions arise if such a third-country agreement is to be carried out, such as the procedural safeguards and standards of treatment of any person sent to a third country.

Madam Chairman, the foregoing observations are provided in a constructive spirit. They are intended to reconcile international standards for refugee protection to legitimate state interests in efficiency and deterrence of potential abuse. We are hopeful that our comments have been made clear and that no sacrifice in the quality of protection is required in order to manage refugee flows effectively and responsibly.

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In conclusion, I would like to thank the standing committee for seeking our contributions and observations, which we hope will be taken seriously.

Lastly, I would like to reiterate UNHCR's willingness to be included in the ongoing consultation process on this agreement, which, among other things, would keep the government's intention transparent and allow UNHCR to assist in addressing any potential problems that may arise.

Thank you, Madam Chair.

The Chair: I thank you very much, Mr. Makonnen.

I would like to say on behalf of the members of the committee that the United Nations High Commissioner for Refugees is always welcome before this committee. Your comments are certainly very welcome in this case. You continue to help us continue to be one of the most generous countries in the world. Thank you.

Mr. Nunez.

[Translation]

Mr. Nunez: Thank you, Mr. Makonnen. Could you provide us with a copy of your statement? You also mentioned that you had forwarded some comments and observations to the Canadian and U.S. governments. Could the Chair obtain copies of these documents? They would be very useful for the purposes of our examination of this draft agreement.

One major concern that has been raised is the implementation of this draft agreement and the degree of protection afforded by the United States and Canada. If you could do a small comparison for us, I would like to know your opinion on this issue. You stated that the two governments comply with international principles. However, isn't it true that Canada affords a higher level of protection? This is what people are most concerned about.

Earlier on, I mentioned the refoulement of Haitians and Cubans, the boat people, who were not entitled to a hearing to make their case. This is a fundamental principle of which I spoke earlier. I don't know whether you have analysed the Simpson bill in the United States which calls for much tougher eligibility criteria for asylum seekers. What is your opinion?

[English]

Mr. Makonnen: I'll try to answer the three questions raised. First, a copy of my statement is certainly available. Secondly, the detailed comments UNHCR has submitted to the two governments were conducted at the headquarters level -

Mr. Nunez: In Geneva?

Mr. Makonnen: - in Geneva. So the government departments would have a complete text. I have only the draft.

Mr. Nunez: Can we get a copy?

[Translation]

The Chair: We will try to get one.

[English]

Mr. Makonnen: The third question is more substantive, which creates a problem for me in answering it simply because I'm not that familiar with the system in the United States. I'm still learning about Canada. I just arrived last July. But I'll try my best to share, in general terms, some of the preoccupations of UNHCR.

I would like to start by using some spiritual terms. I would say that here in Canada our blessing is double. There's a double portion of blessings. In the U.S, I would simply say we are blessed, because in the refugee protection system we are always grateful for whatever we get, and then we continue to ask for more. So I'm sure you can understand what I mean by a blessing and a double blessing, and I'm really fortunate to be in a country where there is a double blessing.

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In concrete terms, it's not only the past record of the United States government in its procedures or in application or interpretation of the refugee definition against certain groups of refugees. I believe one of the honourable members of the committee has already referred to the regions or the countries. Our worry is more about the current trends in the United States.

I have not followed very carefully the draft legislations before the U.S. Congress. There are at least two, with several amendments that are being thrown in, in some cases even to make the already bad draft worse for refugees. Of course, when I say bad I mean it's bad for refugees, but it may be advantageous for certain other groups.

I will just give a couple of examples. One of the draft legislations foresees that a refugee or an asylum seeker arriving in the U.S. without documentation or with forged or false documents will be excluded from asylum procedures. That's not the case in Canada. I'm sure the department can testify that we have thousands of persons in Canada whose documents are questioned in terms of their validity.

Another example is that a 30-day deadline is required to lodge an asylum application. I hear more recently that there are even some parties who insist that they should get away with the 30 days immediately, which means it's shorter than 30 days. I don't believe that's the case in Canada.

Also, we hear that the offences that would exclude refugees from asylum procedures are expanded to include crimes in the category of aggravated felony, which is punishable with a minimum of two and a half years and a maximum of five years. This is not the case in Canada. We have a maximum of five years or more.

The Chair: Mr. Makonnen, I don't want to cut you off, but I think you've amply answered Mr. Nunez's question.

Ms Meredith.

Ms Meredith: Thank you, Madam Chair.

I'm pleased to see you here this morning. I have a very straightforward question to ask you. Does the UNHCR believe that all claimants who are seeking a new country for economic reasons should be able to make a claim as a refugee as opposed to entering in the landed immigrant level?

Mr. Makonnen: I don't know if I understood the question correctly, but I'll take the risk of trying to answer it.

Ms Meredith: Maybe I should clarify. Do you believe that anybody who makes a refugee claim, even though they might be seeking a new country for economic reasons, should be able to go through the refugee claimant process as opposed to making a landed immigrant application?

Mr. Makonnen: I believe the systems are very clear. Immigrants are immigrants and asylum seekers, for reasons of well-founded fear of persecution, should go through the system. I believe this is perfectly clear.

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Ms Meredith: Accepting that premise, does the UNHCR believe that the United States does not accept that it isn't processing refugee claimants in a fair manner under the United Nations guidelines?

Mr. Makonnen: As I've already said, it's a little difficult for me to comment on the situation in the United States, but in general terms I tried to explain our serious concerns about the procedures and criteria in the United States.

Ms Meredith: You're uncomfortable with an agreement between Canada and the United States, as I understand your comments, because you feel that people who arrive first in the United States, come to Canada, and are then sent back to the United States for their refugee claims aren't going to be given sufficient consideration.

Mr. Makonnen: Well, I'll try to put it differently. We have pointed out the problem areas and would like this problem to be dealt with. We would also like to be given an opportunity to consult with the two authorities to avoid any risk of such problems.

Ms Meredith: Do you see problem areas outside of the exceptions under this agreement? This agreement acknowledges that there will be exceptions for the individuals who will be captured under this new agreement. The exceptions, as I understand it, will be for humanitarian reasons or for those with family in either country. Do you see problems that may arise outside of those exceptions that cannot be dealt with in this agreement?

Mr. Makonnen: As I've already stated, we have no objection to the agreement per se if the problems we have already pointed out are taken care of.

Ms Meredith: Do you mean the four problems you have indicated?

Mr. Makonnen: Yes.

Ms Meredith: They include the safeguard that the refugees have access to durable solutions. What do you consider to be a durable solution?

I don't quite understand what you meant when you said that readmitted persons need to be protected against refoulement.

Mr. Makonnen: Well, let me start with the last one. Refoulement is a French word that is being used more and more as an English word. Refoulement means the forced return of a person to a country or a place where he would have a well-founded fear of persecution. That means the person should not be sent back to his death, a torture chamber or suffering. This is really the cornerstone of the protection function.

The Chair: I'm sorry, Ms Meredith, you've run out of time.

Mr. Dromisky, for the last question.

Mr. Dromisky: Thank you very much, Madam Chairperson.

In light of the things that have happened in the relationship between the two countries, I'm a little skeptical about any kind of agreement we might have with the United States. I'm wondering how credible and valid it really might be.

I'm concerned about procedural protection in the United States for the claimants and also possibly in our country because of this bill. Will the protection be the same in both countries? Is there any way we can enforce comparable protection procedures for the claimants? I don't know.

I have another question related to that. Are there any other bills in either country that could supersede any clause or any portion of the bill we are discussing, which is often the case in many other areas?

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Mr. Makonnen: The whole objective of the exercise that UNHCR promotes in the formulation, in the legislation of refugee norms and principles, and in also having an executive committee composed of some forty governments, is to try to harmonize the treatment of refugees - the system of the consideration of the applications. We believe the system could be harmonized, but of course each country has its own particularities.

But as much as possible, without hurting the interests of refugees or without affecting the national interest, certain standards could be maintained. We believe they have been maintained in many cases. In fact, the 1951 convention and 1967 protocol are really a result of that negotiation and harmonization exercise on how to treat refugees. We have a common definition of who is a refugee. We have a common provision for exclusion of those refugees who do not deserve international protection.

On the second question, one item that I find very much connected with what the honourable member raised on these amendments is really in article 1(d)(i). The last line refers to ``ineligible to pursue refugee status claim''. At the end of that it says ``as amended from time to time''. That's referring to the U.S. legislation, which, for us, is in the process of changing. And the new legislation in the U.S. certainly will be different from what we have today. That could affect both the procedures, or even the criteria.

Mr. Dromisky: You don't have to answer this question if you don't want to. Can this bill be used in a manner to control the flow of refugees or people into the richest countries in the world? Can it possibly be used as a form of control?

Mr. Nunez: Please answer.

Mr. Makonnen: I would say it manages, and in management of course there is also control. So it is more of a management of the flow of refugees.

Mr. Dromisky: Thank you.

The Chair: I would like to say how wonderful it is that the United Nations High Commissioner for Refugees works very closely with the Canadian government to assure that there is this generous refugee system in Canada. Do you want to add any closing remarks?

Mr. Makonnen: There was one issue that was raised earlier, and we have received lots of queries on that issue of whether there is a legal principle that requires a refugee to apply - is it mandatory? - in the first country of arrival.

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I was a little bit uneasy when there was reference to the 1951 convention by one of the officials. I don't believe there is anything in the 1951 convention that states that an asylum seeker should apply in the first country of arrival. I would say this is more of an established administrative practice.

I believe I've already mentioned one of the provisions of recommendation 15, where in fact it says that the intention of the asylum seeker as regards the country in which he wishes to request asylum should, as far as possible, be taken into account.

The Chair: Thank you very much, and we hope to see you before this committee again.

We will now invite Professor James Hathaway, of the refugee law unit of the Centre for Refugee Studies, to come before the committee.

Before Mr. Hathaway proceeds, I would like to ask the members of the committee, before we lose quorum, if they would agree to passing two motions. I'll read them.

The first concerns the evidence taken before the standing committee in relation to the study of settlement renewal. As we discussed in the steering committee, we have to call back the witnesses. It reads as follows:

That, pursuant to Standing Order 108(1)(a), the evidence taken by the Standing Committee on Citizenship and Immigration in relation to its study of settlement renewal during the First Session of the present Parliament be deemed adduced by the Committee in the current session.

Motion agreed to

The Chair: Secondly:

That the committee reprint 800 copies of its report on Economic Impact of Recent Immigration, 200 copies of Immigration Consultants, 200 copies of Refugees, Immigration and Gender, and 300 copies of Canadian Citizenship: A Sense of Belonging.

We've had numerous requests, and I need a motion in order to give the clerk the authority to reprint copies of those reports.

Mr. Dromisky: I so move.

Mr. Nunez: Why 300?

The Chair: These are just figures that we assumed would be enough. If you feel we need more copies, I'm willing to hear it.

That was 800 copies of the economic impact report. I myself have already had over 500 requests, so I feel 800 would give us enough leeway.

On the figure of 200 for Immigration Consultants, we've had very few new requests, but some people are coming and asking for new copies.

Are you referring to A Sense of Belonging, Mr. Nunez? I said 300 copies because we'll need it when the Citizenship Act will be brought before the committee. I want to have copies ready and available. Do you think we need more?

Mr. Nunez: As you said, we will see.

Motion agreed to

The Chair: Professor Hathaway, please proceed.

Professor James Hathaway (Refugee Law Unit, Centre for Refugee Studies, York University): Given the very tight schedule I know the committee is working under, may I express my gratitude to you for allowing me to appear here today.

In order to make this presentation, which I know must be brief, as comprehensible as possible, I've prepared a one-page outline of the remarks I hope to make, which is available in both English and French. There are a few extra copies available here if any of the media or others would like to have the same.

You'll be hearing from a number of deputations, who will speak to you about a variety of concerns with regard to this memorandum. I can't possibly do justice to that issue in a few minutes. Instead, what I would like to do, as a way of setting the stage for the more detailed presentations you'll hear, is address head-on the assertion made by the minister this morning and repeated in the testimony provided by officials that the so-called country of first arrival principle is a legitimate basis upon which to deny refugees the right to choose where to ask for protection. I will address simply that one issue, although in questions I'll be more than happy to go beyond that if you would like me to.

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The first point is, what is this memorandum all about? Why are we even doing this deal? Initially it was said that the reason we are doing this is to prevent what I call two kicks at the can. In other words, if an individual decides to ask for protection in the United States, goes through the American process with full knowledge of the consequences, and is turned down, she ought not then have the right to come to Canada and repeat the whole process, thereby spending significant resources to repeat a process that's already been done.

That was a position endorsed by the former parliamentary secretary last December. The department initially dropped it. I now hear it coming forward again today in the minister's remarks.

So let me address it very clearly. I think there is an argument to say that if an individual, knowing what they're doing, opts to go through one system, they don't get a second kick at the can.

If indeed this agreement was about that, I wouldn't be here. If this agreement said that anyone who has chosen to make an asylum claim in the U.S. may not subsequently come to Canada and make a claim, that would be fine by me.

That is not - emphatically not - what this agreement says. It says that anyone, with only transit and family exceptions, who has passed through the U.S., whether or not they've even requested asylum, much less been adjudicated for asylum, is ineligible in Canada.

If the department wants to bring forward a proposal that actually does the objective of two kicks at the can, I would support it. This is not that piece of work.

The second argument is that this is about so-called ``asylum shopping''. Asylum shopping isn't a term that the United Nations uses; they talk about irregular movements of refugees. Here is what that means. This relates to the question the honourable member of the Reform Party put earlier. If someone is coming to Canada essentially for economic reasons, not for protection-driven reasons, they are what is called an asylum shopper. They like life in Canada better than they would like it south of the border, for whatever reason.

If indeed this were a proposed treaty about asylum shopping, I might also have some sympathy for it. The United Nations in executive committee conclusion number 58 has indeed indicated that irregular movements are not to be encouraged. So if we were putting in place a system that would examine persons coming to our border to see whether indeed they were coming here for protection reasons or simply for economic or other reasons, I would support it.

But we don't even ask that question under the procedure. There is no mechanism to determine why anybody is coming here under this proposed treaty. It is simply the fact of arrival from the U.S., whatever one's reason, that results in exclusion. It is not about asylum shopping because we can't identify through this process who is shopping and who is looking for protection.

The only way this could be about asylum shopping would be if one were to accept the premise that there could be no protection-driven reason for choosing Canada over the U.S. In other words, all the protection available here is also available there, so there's no reason to come here to be protected.

That clearly is not the case. I won't have the opportunity to go into detail, but simply let me give you some bare-bones points to illustrate why it is that some refugees feel they need - not want - to come to Canada in order to be protected. The two systems are not the same.

In listening to the minister, I must say I was struck. Here's perhaps an analogy to McDonald's. If you've seen one McDonald's restaurant, you've seen them all. If one country signs the refugee convention, they're just like every other country that signed the refugee convention. Why would you walk eleven blocks to McDonald's if there's one only ten blocks away? It's the same food, prices and restaurant. If that were the case, I would agree with her.

It's not the case. In the United States, for example, looking only at the top ten countries from which the U.S. gets refugee claims, for every one of those countries, the recognition rate in Canada is at least double what it is in the United States.

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Secondly, the United States courts have held that asylum seekers, as opposed to recognized refugees, have no benefit either of the American Constitution's due process provisions or of international law, contrary to the position in Canada as a result of the Singh decision.

Third, an asylum hearing in the United States before the asylum court is a meeting in an office before one individual, with a maximum duration of 45 minutes. There is one officer, no interpreter and no record. That's a radical difference from what is offered in this country.

Fourth, if you get refugee status in the United States - if you are said to meet the definition in the asylum process - that does not give you the right to remain in the United States. It simply allows the American Attorney General to exercise her discretion to let you remain, as opposed to in Canada, where it gives you the right to remain, consistent with international law.

If you want the right to remain in the United States, you have to go through what's called the withholding of deportation system, a higher standard of proof in the immigration courts. It's not a non-adversarial process like ours. There's a prosecutor there who goes after you. To have the right to remain in the U.S., you have to prove not the international standard of a well-founded fear of persecution, but you must show there is a clear probability of prosecution - the very standard that Canada and the UN High Commissioner for Refugees have condemned as inappropriate.

Fifth, interpretations on all sorts of aspects of the refugee definition are radically different in the United States. To give you only one example, the American Supreme Court - not a tribunal, not a lower court, but the Supreme Court - has said an individual must be able to show that his persecutor came after him with the intention of persecuting him for a convention reason - race, religion, nationality, etc. So where an individual was caught between the government and the rebels, and by virtue of her neutrality was persecuted, the American Supreme Court said ``Sorry, you're not a refugee because you haven't proved that either the government or the rebels wanted to get you for your political opinion'', a matter that clearly no victim could prove.

Finally, I would note that the American Superior Courts do not function in the way the Canadian Federal Court of Appeal does. There is not a single court system that provides for a consistent standard of protection, as we have. Every circuit court in the United States operates only for its own geographical jurisdiction. Their decisions have no weight outside of their own area, the result being refugees are treated radically differently depending on where they're deported to in the U.S.

My point is not to say the Americans have a terrible system. That's not my point. My point here is to say there are clear protection differences, so you cannot say it is impossible for someone to be coming to Canada for protection reasons, because there are lots of protection differences. Hence asylum shopping is not an adequate explanation for this agreement either.

Let me then speak to my second point, on what I think the memorandum is about. It is about eliminating the right of refugees to choose where they go. Why does that right matter? To go back to what I said a moment ago, the refugee convention is a very loose agreement with a common definition and a common set of rights, but every state administers it in whatever way it sees fit. The definition does not mean the same thing in every country. Some countries detain refugees behind barbed wire; others don't. Some allow families to be reunited; some don't. Some protect refugees against refoulement; some don't. There is no international oversight of the system.

The only quid pro quo the refugee has in all of this is at least to decide where she wants to take her chances, not to get asylum - that's up to the state she asks, under its rules - but at least she gets to decide who she wants to ask, not more than once, but at least once. If states are to be allowed virtually total discretion to run the system any way they want to, then it's only ethical that the individual be able to decide where she wants to ask for protection.

That is what conclusion 15 of the executive committee provides for - that the individual's wishes are to be the starting point for analysis. That is what the Convention provides for by setting each state as having individual obligations to anyone who arrives at its territory, and as Mr. Makonnen from UNHCR just made clear, making no provision for the sending away of people simply because they've come from some other state.

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There are some exceptions I won't have time to speak to. They are, for example, where an individual personally, under article 3, already has close connections, or where it's necessary to avoid sending a refugee into orbit because no one will take responsibility for the refugee. Neither of those situations relates to this draft treaty.

The other obvious one, which is what I want to insist on, is that if there is true substantive and procedural harmonization between the two systems, if they really are McDonald's restaurants of refugee protection, in other words, then it would be impossible to say that the protection provided in one is better than in the other. It's the same product. If Canada and the U.S. truly have that - and when Mr. Marchi became minister he said that would be the standard - then I think an agreement of this kind would be acceptable. One cannot, however, take away choice without that assurance; that's the quid pro quo.

If you'll indulge me for literally two minutes, I want to briefly address the department's argument that it is enough just to meet international standards. First of all, those standards exist only in skeletal form. They do not speak in any detail to the nature of the procedure, much less to the exact interpretation of the definition that is required.

Most importantly, even if one were to accept this standard, which, as I think Mr. Makonnen made clear, has no basis in international law of any kind, the best the department could dredge up to bolster their case is one line out of a publication of several hundred pages, which has not been endorsed by any legislative body in the UN system. That's the best they could find.

Even if you accepted this view, the U.S. does not meet minimum international standards. Let me simply give you quick examples that you can follow up with me if you're so inclined.

In the Haitian boat crisis the United States picked refugees up on the high sea outside its waters, forced them on board its boats, destroyed their boats, and delivered them back to the arms of their persecutors in Haiti. They were openly condemned by the United Nations High Commissioner for Refugees, who went so far as to intervene in the American Supreme Court against the American government. The American Supreme Court said that's fine, that isn't refoulement.

Lest you think it's only Haiti, in July of 1993 the United States forced an entire boatload of Chinese asylum seekers, one of their ideological enemies, into Mexico, refusing to allow them to pursue their claims in the United States, even though Mexico hasn't even signed the refugee convention.

The U.S. has even signed a deal with Fidel Castro. It's hard to believe in this political climate, but it has done so. It's a deal that does not only allow but requires Fidel Castro to take steps, using mainly persuasive measures, to stop Cubans from leaving Cuba, and the Americans will return them summarily if picked up. I think the language there is ``using mainly persuasive measures''. I'm not sure what else the Americans had in mind. That's refoulement; that's a clear violation of international law.

The Americans deny interpreters in asylum claims, contrary to executive committee conclusion number 8. They detain asylum seekers who are neither dangerous nor likely to abscond, simply in order to ``send a message'' to other asylum seekers. In each of these cases they have been openly criticized by the UN High Commissioner for Refugees for failing to comply with basic international standards, much less the projects Mr. Makonnen spoke to you about that are on the horizon, which would force an asylum seeker to make his or her case to an officer on the spot or be on the next plane.

How do we deal with this? I've tried to provide you with a constructive answer in two ways. First, in the document ``Refuge'' that I have distributed, I've tried to give you some sense of alternative ways to manage the system without denying protection. I know we don't have time to deal with this today, but I wanted to give you this so that you could see that there are other ways of bringing management to the system without being anti-refugee. I have always supported that objective, and I would happily work with this committee were it interested in pursuing that initiative.

If, however, the government is determined to pursue this bureaucratic project, then I would point out to you the proposal at the bottom of my sheet, an amendment to article 12 of the memorandum.

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[Translation]

May I point out that there is a translation error in the French version. The word "sensiblement" should not appear in line 3. You can make the necessary correction.

[English]

The proposed amendment is that the agreement become effective at such time as the parties and UNHCR certify in writing that the refugee status determination systems in Canada and the United States of America have been substantively and procedurally harmonized to guarantee equivalent and fully adequate protection to all classes of asylum seekers, and in any event, not before December 1, 1996. The agreement shall remain in effect subject to annual recertification by the parties and the UNHCR on the same terms until terminated by either party on six months' notice to the other party.

Madam Chair, I believe this agreement speaks to the commitment in paragraph 5 of the preamble to have a just and fair system as the essence of the agreement. It speaks to the willingness of both the minister and the director of asylum to involve UNHCR meaningfully in the process. It takes UNHCR up on its offer to become involved in the process. Yet if you follow the logic of my presentation, it is the only way the country of first asylum principle can be reconciled to international law: if there is no substantive or procedural difference between the two.

I'd be happy to speak to that amendment. I'm grateful to you for your time.

The Chair: Thank you, Professor Hathaway.

[Translation]

Mr. Nunez: Thank you, Professor Hathaway, for your excellent presentation and in particular for suggesting an amendment. I found your proposal very interesting and I think the committee should consider it very carefully.

An eventual agreement between Canada and the United States on the question of refugees has been under discussion for ten years now. The Conservatives tried to negotiate such an agreement and the Liberals were at the time highly critical of their efforts, particularly Mr. Marchi, who has then the Official Opposition Critic. Why have we come back to this agreement today? Is it because of some specific problems? Do you have some statistics on the number of duplicate claims? Is Canada threatened by a wave of refugees?

Mr. Hathaway: As Mr. Goodes indicated, even the department has not compiled figures to show that there is a problem in so far as duplicate claims in the United States and Canada are concerned. I do not have these statistics.

You are going to hear from NGOs working at the Canadian-U.S. border that the problem does not exist. You are going to hear that. I would prefer to leave this matter in the hands of the experts.

When we look at the protection of refugees around the world, we see that Europe, the United States, Canada, Australia and New Zealand combined received only 500,000 refugee claims during the past year, even though there are over 20 million refugees in the world.

For example, a small country like the Ivory Coast takes in more refugees than the United States. Therefore, we don't have a problem in Canada at the present time. The number of asylum seekers that we take in no way exceeds the capacity of our board. In my opinion, there is no justification for this draft agreement.

Mrs. Gagnon: Earlier on, the Minister informed us that some of the groups with which she had consulted disagreed with the principle of denying refugees the right to chose the country that would offer them protection. Where do you stand on this issue? I put this question to the departmental officials a while ago and they seemed to think that refugees did not have this right. They also seemed to downplay the number of stakeholders who objected to this principle.

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[English]

Prof. Hathaway: May I just give you a very straightforward answer? There is no principle of country of first arrival. It does not exist. If you listen carefully to Mr. Makonnen's very diplomatic answer to the question, he said there is no such principle but it appears to be part of administrative practice. I believe that to be his way of saying states do it but have no legal right to do so.

There are some clear exceptions, as I mentioned earlier, in which a claimant already has close connections or in which it's necessary to avoid an orbit situation, in which it is appropriate to regulate where a claimant seeks asylum. Absent those particular circumstances, I defy the department to find one single line in the refugee convention or protocol, one conclusion of the UN executive committee, or one line in the UNHCR handbook that gives legal force to the country-of-first-arrival principle. It does not exist.

[Translation]

Mrs. Gagnon: I see. Thank you very much.

[English]

The Chair: Ms Meredith.

Ms Meredith: I want to thank you for your presentation. It certainly gives one a different way of looking at this. I want to ask you if you have any statistical data on the numbers of individuals who would claim refugee status in the United States and in Canada, and what the acceptance levels are. You said there is a difference in the delivery of the system. I would therefore have to assume there is a difference in the number of positive responses to claimants.

Prof. Hathaway: The problem again, as Mr. Goodes mentioned, is that it appears that the department doesn't collect those statistics, or at least has yet to disseminate them, so I don't have them. All I can do is look at who is going there, at who is coming here, and at what the comparative recognition rates are for similarly situated people. As I mentioned, if you look at just their top countries - the countries that produce the most asylum seekers in the U.S. - for those groups alone, our recognition rate is double or better than what the Americans have. But that's not to say they're wrong and we're right. I want to be really clear about this. It isn't to say we're good and they're bad. My point is simply that you can't call someone a shopper if you admit there's a difference.

Ms Meredith: But there is a difference, and you're saying that difference may be double or more. So does it not make sense that an individual is going to shop? If they know in advance that the chances of their being accepted are double or greater in a different country, that's where they're going to go. Whether they're safe in the first country of arrival and whether they may or may not be accepted in that first country of arrival, the fact is that their chances are double or greater if they go somewhere else. So it's not really a question of safety. It's not really a question of whether they may or may not find safe haven in the country in which they arrive initially. It's that there's a better opportunity of acceptance somewhere else.

So don't you think this agreement is trying to deal with that issue, that the United States may offer them safe haven but they know their chances are better somewhere else? It's almost like a kid who wants an allowance or wants extended privileges. He's going to go to the parent who is more likely to concede to what it is that he wants. It's not whether or not he may be rejected or may be given what it is that he wants. He's going to go where his chances are best. If you don't call that shopping, I don't know what you call it.

Prof. Hathaway: Let me try to explain then. I think the analogy to a child's allowance may be problematic because it's speaking about access to a privilege, something that would be nice. That is shopping.

Let me give you an analogy that I think is a little closer. I live in rural Ontario. The closest hospital to me is a twenty-minute drive away. It's a pretty rudimentary hospital. It has doctors and it has some equipment but it's aging. If I drive on for another five minutes, I come to a town that really has quite a good hospital with modern technology and good staff. If I'm ever seriously ill, I want to drive that extra five minutes. I want to go right past the rudimentary hospital and I want to go to the hospital that I think is more likely to save my life. That is precisely what this is all about. It's about people who come from great distances away and whose lives are on the line; if they're not, they're not refugees and we're going to turn them away. Our procedure now makes clear that if there isn't a risk of persecution -

Ms Meredith: There are some who would challenge you on that.

Prof. Hathaway: If they're not at risk of persecution, they don't qualify, period. So we're talking only about people who are at risk of persecution under this deal. In this treaty the government doesn't contest that.

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My point to you is that if I believe, having travelled from Africa or Asia or Latin America, by crossing one more border I'm likely to be safe from being returned home, I'm going to do it. If I may just personalize this ever so slightly, I would ask every one of us around this table and in this room to think. If we had to flee Canada tomorrow, if we had the ability, we would go to the place where we thought we would most likely be protected from being sent back to danger. Every one of us would do that. If and when, as I have proposed, we harmonize our systems to provide good protection everywhere, choice wouldn't matter. Until that happens, every one of us would look for the safest place we could find.

If you want to segregate out economic migrants - executive conclusion 58 - let's do that. But that's not what this treaty is about. There is no mechanism in it to achieve that goal. I would support an amendment that provided for that kind of process. But it needs to be tailored to the real problem, if you believe that to be the problem.

Ms Meredith: So what you're telling me is that there may be problems in the refugee claimant process, there may be some legitimate concerns about the system and how we deal with it, but this agreement doesn't address those problems.

Prof. Hathaway: Absolutely right. If there were to be an agreement that prevented duplicate claims or that was addressed to people who came to Canada for reasons not related to protection or to the sending back of people who already had close connections in the United States, I would support it. But that isn't this treaty. It simply looks to the physical presence of the person in the United States and says whatever your situation, whatever your problems, you're going back.

The Chair: Ms Meredith, I have to cut you off. Sorry. Mr. St. Denis.

Mr. St. Denis (Algoma): Thank you for being here, Professor Hathaway.

Parts of my question may have been answered, but for clarification of this notion of shopping.... It would probably be advisable for Canada not to be in the position of judging the merits or lack of merits of the U.S. system, as we would want them not to judge ours. I was a bit confused when you mentioned that it's possible for a refugee to enter the U.S. and not even get into the system before being transferred here, under this first country of arrival notion. I didn't quite understand what you meant by that.

Prof. Hathaway: I may not have stated myself very clearly, then. What I'm speaking of is people who pass through the United States but who never ask for protection there. To take the typical example -

Mr. St. Denis: They may have been there for six months, for example.

Prof. Hathaway: Yes. Or typically, if you were, for example, looking at Central Americans who have to travel overland and are disproportionately poor, they can't physically make it from the Rio Grande to the Peace Bridge in 10 days. They just don't have the resources to achieve that goal. It takes time. Particularly for women with young children, etc, it takes much longer. People are misinformed and for a variety of reasons may not arrive here in 48 hours by air or 10 days by land.

Those persons, to my mind, have not abused the American asylum system, because they haven't used it. That they work their way toward us and take their one kick at the can in a system they see to be fair strikes me as absolutely appropriate and very much what I would do if I were in their shoes.

On your earlier point, about judging, this is an important issue, and it's actually the reason, I believe, the government has not previously declared the United States to be a safe country, which we could have done for some years now. We didn't want to be in the position of having to criticize openly the protection record of our free trade partner and our major strategic and political ally.

This deal, ironically, is going to open up that whole can of worms. Until now they ran their system, we ran our system, and there was no need for us to have any interest in whether or not they did it appropriately. Now there is.

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Mr. St. Denis: If some accept the idea that safe haven is safe haven, leaving aside the probabilities of being successful in your application - safe is safe, although there may be degrees of safeness.... In article 4 it's quite clear that either party shall accept the claim, shall examine the claim and extend protection. If we allow the situation as you suggest it should be, with people lingering in the U.S. for some time and then choosing to apply for refugee status here, aren't we creating a situation wherein we are judging the American system? Shouldn't they apply in the United States?

Prof. Hathaway: I guess you have to take the next step.

Mr. St. Denis: Because it could work in the other way too.

Prof. Hathaway: Sure it could, and sometimes it does.

For example, there was a time when the United States said that any person in fear of the Chinese one-child policy was automatically a refugee, with no questions asked. We didn't say that in Canada. We had a much tougher, and in my view more appropriate, test. So there would be good reasons to go from here to there.

Article 4 says only that if the state is responsible, then it shall examine the claim. I want to be clear about the text of that. The rule of first arrival still governs the principle.

In my answer, I've lost the train of your question. I apologize.

Mr. St. Denis: Aren't we in a way judging the U.S. system by saying to the person arriving from the south through the U.S. that they shouldn't apply there first?

Prof. Hathaway: Right. I guess the question is what if somebody passes through Azerbaijan or another state that's also a party. We don't turf those people out. We say as long as you've made only one claim and it's with us, we'll judge it. It's no different from that.

In other words, I think it would be better to have a coordinated system. I agree with the management goal worldwide, not one that creates a new apartheid in the south and insulates us in the north.

Take it a step further. If you applied the logic of country of first arrival, then there would be no refugees in the northern hemisphere. They all have to pass through somewhere -

Mr. St. Denis: For geographic reasons.

Prof. Hathaway: - for geographic reasons.

It clearly is not a principle that has any force in international law. If it were, it would be contrary to the rules on burden sharing. It makes no sense.

Mr. Dromisky: I didn't find in your presentation any information that wiped away any of my concerns about this bill and our relationship with the United States. It certainly didn't appease any of my concerns.

I'm going to ask you a question that I asked the last witness. It was the last question I directed to him. Are there any bills or any omnibus bills of any nature that would supersede or have a direct impact and influence on any clause within this bill that can be used to the country's benefit at any given time, whenever desired?

Prof. Hathaway: Can be used to the benefit of Canada?

Mr. Dromisky: Or the United States. Either one.

Prof. Hathaway: I'm not sure that I quite understand the question, but I think it's important. You're talking about an indirect risk arising out of the agreement.

Mr. Dromisky: Yes, an indirect risk - that's a good way of putting it - or an indirect threat. Either one.

Prof. Hathaway: To refugees, by reason of this agreement?

Mr. Dromisky: Or another bill. I'm referring to -

Prof. Hathaway: One of the primary ones this committee should be concerned about - and I heard in the minister's remarks this morning that this may be one she's prepared to amend, and I'm happy about that - was a provision that, for example, if we sent someone back to the U.S. and they had a deal, let us say, in my view not so hypothetically, with Mexico to send that person back, then even though Canada didn't have a deal with Mexico, the U.S. could send that person back as long as we didn't object or require action on our part.

That clause is quite offensive, given the Americans' terrible record on the refoulement I spoke about earlier: Haitians, Cubans, Chinese, and many others. That clause clearly has to go.

I didn't raise it in my presentation because I heard in the minister's remarks that she too understands that it's an indirect violation of the Immigration Act, which allows removals from Canada only to countries that have passed human rights scrutiny and a number of other tests that are now in the act.

That's why I've focused on the big issue, which is why choice matters. Choice wouldn't matter if the two systems were the same.

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The Chair: I'd like to know, Professor Hathaway, why you feel article 13 in the agreement does not in fact cover to a certain extent your proposed amendment to the memorandum.

Prof. Hathaway: Article 13 provides for there to be a review between the parties in July of 1997. It doesn't set out any criteria substantively or procedurally for this deal to enter into force. It doesn't provide for the equality of treatment standard that Minister Marchi initially announced in 1993 as being the appropriate standard and that I believe is consistent with international law. Nor does it provide for any role of the UNHCR in that initial certification or in the re-certification.

The concern is that there is nothing in the treaty as proposed that sets qualitative standards. It simply speaks about ``just and fair'' in the kind of language that allows virtually anything to pass scrutiny. The minimum standards of UNHCR are just that, as Mr. Makonnen emphasized. They're very minimal. They're not even close to the due-process guarantees that are part and parcel of our constitutional culture, for example. So the amendment being proposed is one that creates the basic condition in which choice doesn't matter, from a protection point of view. To go back to Ms Meredith's concern, if there's nothing to distinguish the two systems other than a preference economically or socially for one place over the other, the executive committee of UNHCR does allow choice to be constrained, but not otherwise.

The Chair: But you do agree that allows for ongoing consultations at least over one year. The UNHCR will be involved in those consultations in both the United States and Canada.

Prof. Hathaway: It certainly does establish that. It also establishes the risk over that ensuing period and provides no mandatory framework within which those decisions are to be made.

I'll close on this. This morning the minister very honourably said she was committed to fairness and justice in implementing this arrangement. I take her at her word. I take her at her word that she believes, as her predecessor did, that one ought not to force someone into a system we know to have protection weaknesses relative to our own. I take her at her word that she wants the UN High Commissioner for Refugees involved. The very simple amendment to article 12 that I proposed will achieve all of those goals and allow, I believe, this agreement to be credible.

The Chair: My second question, if you'll allow me. I know we're indulging the time of the members. Although Mr. Makonnen, or UNHCR, agrees with you that there is no legal basis for the basic premise, he did state - if I am mistaken, please correct me - that an unwritten principle does exist on the basic premise. Do you agree or disagree with that?

Prof. Hathaway: I understood him to be saying in the practice of states there was an emerging practice to that effect. I would emphasize that the practice is largely in Europe, where there was an orbit problem; situations where no state would take responsibility for anybody. So the UNHCR in its conclusion 71 provided that these agreements are valid where it's necessary to prevent a refugee from getting in nowhere. That problem doesn't exist between Canada and the United States, and has never existed between us. I would qualify his observation only to that extent.

The Chair: I thank you very much, Professor Hathaway, for your insight, your analogies, which are always very welcome, and your recommendations to this committee.

The meeting is adjourned till 3:30 p.m.

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