CIMM Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 2, 2001

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[English]

The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Order. I wonder if I could call to the table the following witnesses: Suresh Krishnan; Metro Toronto Chinese and Southeast Asian Legal Clinic; Zubair Choudhry; Women's Health in Women's Hands Health Centre; and Kean Bhatacharya.

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To all our witnesses, my apologies for being a little delayed, but as some of you who may have been here will know, we had some very good presentations this morning and a lot of questions from the committee. As with most things, when you run a little behind you have to feed the troops so that you have enough energy to continue.

I want to take this opportunity to welcome you to the committee and to thank for your hard work done on a daily basis for the betterment of our country and immigrants and refugees.

That said, I hope you will take about five to seven minutes each, or per organization, to give us an overview of your questions and concerns and input, which would then give us time for questions. We should have copies of each brief.

Is Suresh Krishnan not here? She's not.

We'll move to the Metro Toronto Chinese and Southeast Asian Clinic, with Avvy Yao-Yao Go.

Ms. Avvy Yao-Yao Go (Barrister and Solicitor, Clinic Director, Metro Toronto Chinese and Southeast Asian Legal Clinic): My name is Avvy Go, and I'm the clinic director of the Metro Toronto Chinese and Southeast Asian Legal Clinic. The clinic is also a member of the Coalition for a Just Immigration and Refugee Policy, and we endorse the brief submitted by the coalition to the standing committee.

Because of the limited time, I'm just going to touch on some of the key issues we have identified in our written brief.

As an opening remark, I want to state for the record our view that Bill C-11 reveals a policy direction that stigmatizes immigrants and refugees. The bill has the potential to further erode the rights of immigrants and refugees in this country. It achieves such negative impacts through the following means.

First, it emphasizes enforcement by increasing the power of its immigration department to detain undocumented people and remove immigrants and refugees on criminality and other bases.

Second, it adds new grounds of inadmissibility and screens out potential refugee claimants on so-called security grounds, with little regard for their rights and due process.

Third, it creates a new classification of non-citizen, the so-called foreign national, which undermines the rights and negates the contribution of immigrants and refugees to the country.

Finally, it creates a two-tiered family class system. Spouses and children are being given preferential status over other family members.

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I'm aware that some of these concerns have been raised by many representatives coming before you, particularly around the issue of foreign nationals. I just want to reinforce that for Chinese-Canadians the term “foreign national” conjures a heightened negative emotion because of the experience of racism faced by Chinese-Canadians in this country. From the fear of “yellow peril” at the turn of the 19th century to that of “Asian invasion” in contemporary society, Chinese-Canadians are often still regarded as foreigners in the country they have helped build. So I implore the committee to ask the minister to remove that term absolutely, completely, from the bill.

I will now turn to the issue of family reunification. I would just like to start by reminding this committee that since this government came to power, the percentage of family class immigrants has been gradually reduced, from over 50% of the overall immigration population in 1992 to under 30% today. So any statement made by the government about its commitment to family reunification must be examined within this statistical context.

While we welcome the limited expansion of family class definition in Bill C-11 to include common-law and same-sex partners and to marginally increase the age limit of dependent children, we have serious concerns about some of the new restrictions in family sponsorship and the creation of a two-tiered family class system.

We believe that all family class members must be treated equally. The current act essentially recognizes a nuclear family concept. The bill further reinforces that concept by exempting spouses and dependent children from certain admissibility requirements while subjecting other family members to a more stringent test.

The bill also seeks to remove the right of Canadians to sponsor the family on the grounds that they are in receipt of social assistance. This amounts to legislative discrimination against those who are in need of government assistance.

The bill broadens the grounds of inadmissibility, including that based on misrepresentation, which will further restrict family class immigrants. It is the experience of our clinic that misrepresentations are sometimes made by individuals without malice or intent. Other times, misrepresentations are made by unscrupulous immigration consultants without the applicants' knowledge or permission.

Under Bill C-11 these applicants, under all these circumstances, will be caught by the new inadmissibility clause. These individuals will also lose their right to appeal sponsorship, except in the case of sponsorship of spouse and children.

We believe that all refusal of family class sponsorship must be subject to appeal and that the grounds of appeal must allow for the consideration of humanitarian and compassionate factors in all cases.

With respect to the issue of rights of permanent residents, we echo the concerns raised by the coalition that the bill erodes the right of permanent residents to appeal removal orders on criminality and other grounds.

Immigrants of colour face systemic racism in the criminal justice system. The increased power to deport permanent residents and the corresponding erosion of the right to appeal will result in more immigrants of colour being deported, no matter how long they have lived in Canada.

In conclusion, we submit that the bill must be examined from a gender-based as well as a race-based perspective to ensure that it does not create a negative impact on people of colour and women in this country.

Finally, we just want to submit that to live up to our reputation as one of the most humanitarian countries in this world, Canada owes it to its people to pass an immigration and refugee law that respects the rights of immigrants and refugees and recognizes the contribution they make to this country. For that reason, Bill C-11 must not be allowed to pass as it stands.

Thank you.

The Chair: Thank you, Avvy.

We'll go to Zubair.

Mr. Zubair Choudhry (Individual Presentation): Thank you, Mr. Chairman.

Mr. Chairman and respected members of the standing committee, ladies and gentlemen, I am Zubair Choudhry, a member of a South Asian-Canadian community and founding member of the GTA Immigration Task Force, headed by Mr. Leon Benoit, an MP, who was at that time the critic for immigration. He could not join us today due to a prior commitment in Ottawa, but he has requested that we present the report of the GTA Immigration Task Force, which we had last year in May 2000.

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I have with me Dr. Bikram Lamba, who is a political strategist and former adviser to the Prime Minister of India and a recent immigrant to Canada, and Jawaid Manzoor and Ajit Deskmukh, founding members of the South Asian Regional Cooperation Council of Canada and respected members of the Canadian community.

The Chair: Zubair, I wonder if I could ask you to slow down for the interpretation services, please.

Mr. Zubair Choudhry: First of all, I would like to welcome the members of the Standing Committee on Citizenship and Immigration to Toronto, where half of all the immigrants settle after arriving in Canada. We are also pleased to know that finally the government has recognized the fact that our present immigration system is not working and there is a need for new reform and forward-looking legislation with a balanced approach to accountability and equality.

We would like to see that our new immigration system not only incorporates the rights of would-be new immigrants but also takes into consideration the opinions of Canadian citizens. We believe Canadians have the right to know who is going to be in their neighbourhoods and who will be living in their communities.

Our presence here is based on our concerns for Bill C-11, both as individuals and largely through the findings of the GTA Immigration Task Force—we have enclosed a copy of the GTA Immigration Task Force for your consideration and information—over some months affecting new immigrants in the GTA, where about half of them are settled. While other members of the community in front of this committee have already expressed some of these concerns, noticeable aspects of reminder for the committee refer to misuse of refugee status, such as jumping queues in an already slow, long waiting list; human smuggling; bogus refugee claimants; dual intent entry to Canada; and the right of landing fee. These are the issues that need to be addressed in this legislation.

While the above are largely known, and given time constraints, current representation, however, seeks to focus on more specific issues that lately have been of concern to most through Bill C-11.

Powers of the immigration officers. There is every semblance that increased powers vested in immigration officers are disproportionate to this level and are subject to misuse, despite the appeal process, which is already a cumbersome and expensive process.

I would draw your attention to subclause 55(2) of the bill, “Arrest and detention without warrant”. Arrest and detention of foreign nationals other than permanent residents or protected persons is itself a violation of human rights.

Subclause 12(2), common-law family status. Family reunification, on the basis of relationships as opposed to common-law.... The government already has difficulty in checking the legitimacy of a legal marriage, and we believe that including common-law status in family unification will not only create an administrative nightmare but will also favour one group over the other.

Paragraph 34(1)(b):

Security.

(b) engaging in or instigating the subversion by force of any government;

Recently at the Summit of the Americas in Quebec City, the government signed a convention that we will be supporting and working with only democratically elected governments in the Americas. Under this provision, if someone is struggling to bring democratic reform to the system of a particular country, they would be denied the right to enter Canada. There are examples of political leaders who have been given the Nobel Prize for their struggle against undemocratic governments, but we would deny them entry into Canada.

Subclause 22(2), “Dual intent”, does not preclude them from becoming a temporary resident if the officer is satisfied that a person will leave by the end of the authorized period. We believe we should eliminate dual intent landing status in this legislation, which ends up giving general amnesty without security and a medical checkup of the refugees on humanitarian grounds. On the other hand, visa officers deny entry to legitimate visitors and tourists due to their doubt that they will not become refugees upon arrival in Canada.

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In my opinion, subclause 9(1) in particular, on federal-provincial agreement, taking in foreign nationals acceptable to the provinces, is anti-national, discriminatory, and contrary to the very essence of the bill. Refer to paragraphs 3(1)(b) and 3(1)(c) in the objectives of the bill.

For example, the Province of Quebec may allow only French-speaking people to come to Quebec, and the Province of B.C. may only allow Punjabi-speaking people to come to B.C., and maybe in Ontario, the province may allow only Chinese-speaking people to come to this country. This may also deny the very essence of the bill.

That will end our presentation. Thank you.

The Chair: Thank you, Zubair and Bikram.

Now we will go to Women's Health in Women's Hands Community Health Centre.

Ms. Johnson, welcome.

Ms. Eunadie Johnson (Executive Director, Women's Health in Women's Hands Community Health Centre): Thank you.

The name is Eunadie Johnson. I see you're having a problem pronouncing it.

The Chair: Yes. I must tell you, I had very little sleep last night.

Ms. Eunadie Johnson: Thank you, Mr. Chairperson and members of the committee.

I'm the executive director of Women's Health in Women's Hands, a community health centre in downtown Toronto. We provide services to women only, who live in Toronto and some of the surrounding municipalities. Our centre is an anti-racist, pro-choice, and multilingual community health centre for these women.

The centre has been in existence for the last ten years and is committed to working for immigrants and refugee women, women with disabilities, young and older women. Within these groups, we also prioritize services to black women and women of colour.

Because of the work we do, we maintain links with people across the country and internationally, and specifically in countries that these women came from originally. For the past 10 years we have sustained a proactive presence at international fora to advance the human rights of women. This combination of direct service provision to immigrant and refugee women and local, national, and international advocacy on behalf of women's human rights and equality has placed us in a unique position to comment on the impact of this proposed Immigration and Refugee Protection Act.

We consider the determinants of health to be broader than the conventional determinants, meaning your physical, mental, and medical health. We see racism as a health determinant. We see immigrant and refugee status, or lack of that, as a health determinant, because the major thing in anyone's life is if you do not have good health, you don't have anything.

We have many concerns about the evident lack of agenda perspective in the proposed bill. Despite the fact that over 80% of the 27 million people worldwide identified as persons of concern to the United Nations High Commission for Refugees are women and children, it appears that the bill fails to take into consideration the specific issues of women, either as refugees or as immigrants, despite the fact that Citizenship and Immigration claimed in its news release of February 21, 2001, that the new bill reinforces the government's commitment to gender equality.

In 1995, this very government, the Government of Canada, adopted and committed itself to implement the Beijing Declaration and platform for action. I hope most of you know what that is, because it seems Canada does not market well domestically what it does on the international scene, and there seems to be a disconnect between what is said out there and what comes home.

Specifically, the government committed itself to promote and protect all human rights of women and girls and to ensure respect for international law, including humanitarian law, in order to protect women and girls in particular. More pertinently, the Government of Canada committed to apply international norms to ensure equal access and equal treatment of women and men in refugee determination procedures and in granting asylum, including bringing national immigration regulations into conformity with relevant international instruments, and consider recognizing as refugees those women whose claim to refugee status is based on the well-founded fear of persecution.

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As recently as June 10, 2000, the United Nations adopted by consensus further actions and initiatives to implement the Beijing Declaration and the PFA. A signatory to this document, the Government of Canada committed itself to mainstream a gender perspective into national immigration and asylum policies, regulations, and practices as appropriate in order to promote and protect the rights of all women, including the consideration of steps to recognize gender-related persecution and violence when assessing grounds for granting refugee status.

We can talk about all the international conventions and all the signatures, where Canada has signed on to these conventions, and again not bringing home what they commit to internationally. I happened to be part of some of these sessions in New York, and as late as this March, Canada was there implementing and pushing forward a proposal to the wider world to support gender mainstreaming. However, that's not evident in this bill.

Further to that, Canada also recognizes internationally the inequalities amongst women. So when I speak of a gender perspective here, I'm not just referring to women who are in the mainstream, white women in particular. I'm talking about the integration and the recognition of women who are further marginalized, and most of those women have immigrant and refugee status in Canada, or do not.

Before this bill is passed into law, it must be reviewed from that perspective to ensure it's in keeping with all the various commitments. We are strongly opposed to an increase in the power of individual immigration officers to arbitrarily decide to detain individuals, quite possibly on the basis of racist suppositions, stereotypes, and other discriminatory practices. Again, Canada has signed on to the International Convention on the Elimination of All Forms of Racial Discrimination, therefore they must take into account and undertake not to sponsor, defend, or support racial discrimination by any persons, and to take effective measures to review governmental, national, and local policies.

We especially believe children must never be detained, given that Canada is a signatory to the Convention on the Rights of the Child. We urge the government to broaden and extend humanitarian and compassionate grounds for inland immigrants. We note that Canadian children of women without immigration status are already being denied their rights as citizens. For instance, in Ontario, Canadian children are being denied the right to attend school and to receive medical insurance from OHIP.

We know there are many undocumented women presently living in Canada and fully employed as child care providers, nannies, domestic workers, and respite care workers. Others are employed in the manufacturing industry, in sales, or in cleaning services. These women are paid less than minimum wage and are afforded no human rights protection. They are frequently victims of sexual and racial harassment. In an attempt to legalize this status, many fall prey to unscrupulous and unregulated immigration consultants.

The head tax...we can talk about that. The landing fees are prohibitive and out of the reach of many of these women. Some of them are mothers of Canadian-born children.

While providing services....

It's hard to get all this stuff in, but I'm trying.

The Chair: You have 30 seconds left.

Ms. Eunadie Johnson: While providing services to women who have come to Canada with their partners as refugee claimants or who have been sponsored by their spouses, we have been made aware of many instances where women are being forced to stay in highly abusive and dangerous relationships. We know and commend the committee, or the bill, for moving forward to reduce the number of years of sponsorship, but that does not take into account women who have been sponsored right now, who have not reached that three-year limit and are being abused and have to stay in abusive relationships.

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You have our presentation. You have our recommendations and the areas of concern. So we urge you again to take a gender perspective into account, but also consider the inequalities amongst women.

Thank you.

The Chair: Thank you, Eunadie.

Next is Kean Bhatacharya.

Mr. Kean Bhatacharya (Individual Presentation): Mr Chairman, members of the standing committee, may I begin by first saying how much I appreciate the opportunity of appearing before you today.

I myself came here as an immigrant, but I am now seriously concerned about the current immigration policy, particularly the annual immigration target.

I heard some remarks before you broke for lunch that you want to have this target increased to 1% or something. But this is going to a different note. I submit that some of the provisions of Bill C-11 cannot really be realistically evaluated without taking into account the current immigration level.

Unknown to many is that Canada is the largest per capita immigration-receiving country in the world. Our demographic situation is not all that different from that of the U.S. So it will be instructive to make a comparison with that country's immigration level. Much of Canada's large land mass is not habitable. Its main population centres are located within a strip of land roughly 160 kilometres wide, north of the U.S. border.

In this respect, the U.S. is more fortunate. It has much more to offer. Yet Canada receives 7.5 immigrants per 1,000 of its population while the corresponding U.S. number is 2.9 per thousand.

My brief has the computation. The general characteristic of Canada's immigrants is that they mostly do not disperse all over the country; 70% of them settle in our three largest cities and 45% of the total inflow comes to the GTA. At least, the GTA and Vancouver are suffering from heavy congestion.

Over the years we have been told of the contribution immigration makes to the economy, how it adds to Canada's otherwise declining population, and sustains an aging population by increasing the numbers in the workforce. But expert studies do not support these contentions. The now defunct Economic Council of Canada's then research director, Neil Swan, in an interview in 1992 said that the immigrant creates a job but also takes a job and so the economic effect is neutral.

A synopsis of a 1989 Health and Welfare study of declining population entitled Charting Canada's Future—a Demographic Review is in my brief. Faced with a net immigration of 80,000 a year, the population would fall to and stabilize at about 18 million after 2086. So the Canadian population would never be extinct.

Dr. Robert Brown, professor at the Department of Statistics and Actuarial Science, in a recent article said that productivity will offset the baby boomer retirement burden, not the quality of immigrants.

Now consider the quality of immigrants we are getting. Before I do that, may I point out to you that at any given period of time, only a limited number of quality people are in the market. When the general target exceeds that number, you have to lower the criteria and provide incentives for potential immigrants, which Bill C-11, particularly in some of its provisions, is precisely doing.

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It is giving an 18-year-old the right to sponsor, although what financial resources this person would have is hard to imagine. Furthermore, the earnings of post-1980 immigrants, representing their productive capacity, has fallen to 58% of their pre-1981 counterparts in the Vancouver and Victoria areas, as indicated in the study done by Dr. Don DeVoretz of Simon Fraser University.

Recently I saw an appeal for help from government officials on CFMT television, which indicated that most or many Tamils are living at or below the poverty line. Is it really beneficial to have a society where a large body of people cannot cope with the demands of the labour market and have to be continuously subsidized?

So given these expert opinions I have cited here and detailed in my brief, I submit that the standing committee should consider why we need annual immigration at the level of two and a half times that of the U.S.

There are otherwise unwarranted incentives in Bill C-11 to attract immigrants. The irony is that the hard-pressed Canadian taxpayers are the ones who foot the bill. As shown in my brief, we suffer congestion, smog, traffic gridlock, and compete for space on the highways.

Thank you for your attention.

The Chair: Thank you, Kean.

Before we go to questions I might add, though, that if we were to follow everything you just said, you may not have gotten here 34 years ago.

Mr. Kean Bhatacharya: What do you mean?

The Chair: That's my point. If you had written this paper 35 years ago, you probably wouldn't have been an immigrant to this country. I just say that in passing. But I'm sure some of my colleagues might have some questions.

Mr. Kean Bhatacharya: I don't know why you say that.

The Chair: Maybe I'll ask you the question later.

I'll move now to questions.

Inky.

Mr. Inky Mark (Dauphin—Swan River, Canadian Alliance): Thank you, Mr. Chairman. And welcome to our witnesses this afternoon.

There are two points I'd like you to ponder. One is the whole issue of due intent, which is a change in this bill. Proponents of due intent believe it gives international students the opportunity to stay here, and also professionals. Instead of being forced to go back to their country of origin to apply, they can do it within. Those who are against it believe it may open the doors. I'm sure that won't happen.

The other question is about the discrimination toward women. I find it troubling, because we've heard a number of presentations talking about the discriminatory nature of the bill.

On a personal note, my late mother was my role model. I believe that any legislation that separates men and women is not good. So I would like some specific changes to be made to deal with discrimination toward women if that occurs blatantly, and it should be written that way in this piece of legislation. So could you respond on these issues of due intent and discrimination?

The Chair: I wonder, Eunadie, if you can address some specifics. It's a very good question on how we might improve it so that the so-called discriminatory aspects might be—

Ms. Eunadie Johnson: I think all you have to do is look at what is within the government's problems already in terms of its policy. I'm talking about, again, the international conventions that have been signed and what specifically it says about the inclusion of women and taking into account the impact on women, and how it impacts on them differently, and to then include it. When we talk about persecution and we talk about women being sponsored...because we're still in a world that is a white male system. Within that white male system there are some men of colour, black men, men of South Asian or Chinese descent; there are some women in that system, but the structure is generally made up of a white male system. So when you look at that and you talk about sponsorship in the whole immigration milieu, you have to look at whether or not that woman who has come in here and been sponsored could be considered as an immigrant by herself as opposed to an attachment or an appendage to her partner.

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You also have to think about situations where women economically are not up to par. Canada is mostly bringing in economic immigrants, people who have money. So where that woman is not in that situation, she immediately is at a disadvantage in terms of coming to Canada, though she may have a lot to offer in other areas. So those are the things we are looking at. Look at that woman as an independent, not as an appendage to her partner.

The Chair: Thank you. Well said.

On the question of dual intents, Zubair, could you just expand on what your concern was?

Mr. Zubair Choudhry: The concern, in our opinion, is that when somebody enters Canada, they have one intent at that point in time. Either they are visitors, they are tourists, they are student immigrants or permanent immigrants, and this intent is clear at that point in time.

Once they enter Canada and their intent changes, that creates problems. There are problems in terms of getting visitor visas for our relatives or friends, business visas for our business associates, and student visas for somebody like a Chinese student from overseas to come and attend the universities in Canada. They have a problem getting those visas to come here because immigration and visa officers think that when this individual will enter Canada, his intent will change and he will declare refugee status, and then we will have a problem. This is why this issue needs to be addressed; this act should specifically say that once you enter Canada in one intent, after that you must leave Canada and reapply if your intent changes.

The Chair: That's exactly what we don't want to do, and I think there might be a.... I think there's a misunderstanding. In fact, what Inky was talking about, and what the bill says, is that one should not have to leave the country in order to stay here as a student, as a visitor—

Mr. Zubair Choudhry: But we want them to leave.

The Chair: You want them to leave.

Mr. Zubair Choudhry: We want them to leave. That way we won't have a problem for genuine visitors or genuine tourists in coming to Canada.... Then the visa officer would have no problem because he'd know generally that when a person comes as a visitor he will go back. There should be no law saying, no, you changed your intent.

The Chair: I was just surprised because you're the first person who's told us that, that's why.

Mr. Zubair Choudhry: That's our point of view. That's why we are here.

The Chair: Avvy, on women.

Ms. Avvy Yao-Yao Go: I guess, on both issues—

The Chair: Or dual.

Ms. Avvy Yao-Yao Go: I'll address the issue of women as well. I think another concrete example of how you can change the system is that, and I think Eunadie mentioned it before, women who are trapped in abusive relationships fear leaving the abusive husband because she may lose her status.... In the United States, they have programs specifically set up to allow those women to stay permanently without fear of losing their status even though they're in an abusive relationship. That's something I think this committee should also recommend that the government do, set up some kind of humanitarian program that will allow women to stay here permanently even though the sponsorship may have broken down.

On the dual intent, I think the concern I have with the current system is that this becomes an excuse for immigration officers to refuse a visa. It's a very subjective factor. Who is to know what's in the mind of the person who applied for the visa application in the first place?

Then you see across the board systemically that persons from certain countries cannot get student visas because of the personnel at that particular visa post who believe there's a chance these kinds of students will not leave Canada once they are here. The example I can think of right away is the Beijing office where you have a disproportionate number of student visa applications being rejected.

The reality is that people do have dual intent. They can be a genuine visitor but also have the intent of wanting to stay in Canada. I don't think that should be seen as a sin or a crime, and it's just a reality. It shows how wonderful Canada is, if you can see it that way.

The Chair: Precisely, and that's what the intent of the bill is supposed to be. It's to recognize that people can change their minds and should not be penalized for changing their minds when they come here. It's an attempt to make it easier, not harder, for visa officers or immigration officers, or in fact would-be people who come to this country.

John.

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Mr. John McCallum (Markham, Lib.): I'll just mention a few things my colleagues have heard before, but they respond directly to a few points that have been made. These are amendments that are likely to be made, which go some way to addressing your concerns. One is that it will be made clear that the regulations will not be allowed to change the spirit or basic philosophy or thrust of the act, which isn't clear right now. Second, none of us like the term “foreign national” and we're going to try to find an alternative. Third, in two ways it's proposed that we amend the bill to reduce the arbitrary power of immigration officers, first with respect to examination, and second, with respect to deportation of permanent residents. None of that addresses by any means all of your concerns, but I think it is definitely in the right direction.

I just have one question for Mr. Choudhry. By the way, I'm an economist and I disagree entirely with Mr. Bhatacharya. I think we definitely need for the economy more immigration of skilled people. We're in competition with the world. We were in Asia recently, Anita and I, and Singapore has this heavy advertising campaign on television telling everyone to come and move to Singapore. People talk about brain drain. I think it's exaggerated, but if we bring in skilled people, we'll be net importers of brains, and that is very important in this day and age.

I don't dismiss the aging population. I think we can address that issue in part through immigration of young, skilled people, without diminishing our humanitarian concerns for refugees and family unification. I think we have room in this country for at least 1% of the population per year, possibly even more. But that's not my question—that's just a little outburst.

My question is on this opposition to dual intent. I don't really agree with you. I don't see how it's workable on the refugee side. One of the fears is that someone will come in as a visitor and then declare himself or herself a refugee. Are you saying that if someone does that, we automatically ship that person out? What if that would be putting the person in danger?

The Chair: We'll give you an opportunity to answer. I know we're going to get emotional, and that's fine. We're going to get a little warm.

Mr. John McCallum: I've almost finished the question. I would have thought our humanitarian obligations are not to ship people out if we're sending them to a place where they'd be in danger, tortured, or whatever. Even if I did agree with your position, which I don't, I can't see how it would be workable.

Mr. Zubair Choudhry: What I would like to see is that the intent of people to come should be very clear, because there is a misconception of the visitor that they will stay here and prolong their stay in Canada as a refugee or become a permanent resident want-to-be. Even though we may want those people to be here, there will be hundreds and thousands of those who Canadians do not want. Those are the people who are criminals, have no medical records, have no economic opportunities, and they're not capable of contributing to the society. Then we end up giving them a “broader amnesty” and then they stay here on those bases—and that was done the last time.

Here's the point. Are those who are not genuine refugees and have been rejected by the system to be allowed to stay in our country? Yes, that happens. While our official acceptance rate for refugees is something like 50%, which is many times higher than the rate of most other countries, only 15% of all those people who come to Canada claiming to be refugees are ever known to leave the country. That is what makes Canadians angry about our system and about the way the government allows our system to fail. That is what Canadians do not want, and that is what I would like to express here, that this is a problem.

Mr. John McCallum: I still don't agree with the way you've expressed it, but I do agree that we must have a balance, and if people are criminals or bad in one way or another, this bill strengthens our ability to either not let them in or kick them out. I think one has to be reasonably tough in that area, or else those, like me, who favour a liberal immigration policy won't be able to do it because of the public backlash. I think the bill, without agreeing with you on dual intent, does address the issue of giving more weight to security and criminality.

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The Chair: Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): My first question is for Mr. Choudhry.

I listened and read your brief attentively. There are some things which are crystal clear. There are others which are less so. So I will ask you to refresh my memory.

On page 2 of your text, you mention section 12. I will read it in English.

[English]

Government already has difficulty in checking the legitimacy of a legal marriage and we believe that including Common Law status as family unification will not create administrative nightmare but also will be favouring one group over the other.

What do you mean?

Mr. Zubair Choudhry: What we're trying to say here is that we already have a problem within the immigration system to recognize or justify that marriage as a family reunification. And common-law spouse is a relatively general term, and it will be very difficult to prove who is common-law and what criteria need to be justified for a common-law family reunification. So this is something that will create a lot of problems and also open a loophole for anybody to say, this individual is my common-law partner. So there's no legal marriage, there's no proof, there's no living together. How can you have a common-law relationship with one person living in one country, the other person living in another country? That doesn't make sense to me at all. That is why we thought this is a point we should raise.

[Translation]

Ms. Madeleine Dalphond-Guiral: I do believe that there were conflicts where the husbands were far away and where the women stayed here for four or five years. This being said, I understand at any rate that you are against this.

My second question is to Ms. Johnson.

You mentioned the excessive powers of immigration officers. I'm sure that you can share your suggestions with us as to how to reduce this broad discretion which under the current legislation resides in the hands of immigration officers. Could you provide us with any solutions?

[English]

Ms. Eunadie Johnson: Let's give you a personal example very quickly. Last June I came back from New York, after attending the Commission on the Status of Women, meeting for three weeks in New York. I came in with about 25 other white women from the plane. I was the only one stopped with a Canadian business card. After having lived here for 35 years, I was the only one stopped and sent, not to the customs—that's fine, fellows—but to the immigration, Checkpoint Saturn. How could you be in New York for three weeks? Doing what? Where do you work? Let me see your card. If I did not have something to go to quickly, I would have stayed and argued and probably been arrested. I'd then have to prove I was a citizen.

So when I talk about arbitrary immigration powers, I think there has to be a consequence for immigration officers arbitrarily stopping people. I am not saying they shouldn't do their job, because every country should protect its borders, but at the same time, you cannot just look at a person and assume that potentially they're a criminal or non-immigrant or not healthy because of the colour of their skin. I think also we have to make it more representative with respect to the people who are working within the department, so that their very presence sensitizes the others who have different sorts of values or stereotypes of the people from different races.

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So first, you bring them to account for what they do, and second, you look after your workforce and ensure that workforce is representative of the country.

The Chair: Eunadie, that outrages an awful lot of us. In fact, our own colleague Jean Augustine was subjected to exactly the same thing. I find it outrageous, again, that we wear glasses of some sort that characterize Canadians as a particular colour or person or religion, and so on. That's not acceptable, and hopefully we'll have an opportunity in this bill to make sure that doesn't happen as frequently.

Ms. Eunadie Johnson: There should be some kind of redress. We advise that people be able to complain and expect some appropriate response.

The Chair: Sure. You could try writing your member of Parliament too.

Judy.

Ms. Judy Wasylycia-Leis (Winnipeg North Centre, NDP): It's a little bit like the story of the black person who was asked at an airport somewhere in Canada, “Where were you born?” and he said Nova Scotia. And the person said, “No, I mean before that.” I think that probably hits at what you've been saying, Eunadie.

I just want to make a comment. Under Mr. Bhatacharya's vision of immigration, I don't think I would be here. I don't think my grandparents, who were peasants in Ukraine in the early 1900s, would have been allowed into Canada under that kind of a view of this country and immigration policy. I guess the more pertinent question is, would they be allowed under this bill? That's something we have to come back to later on.

I wanted to ask a question concerning gender analysis, since I think it's something worth pursuing. If there's a bias in this bill, it's not anything blatant. It's not as if this bill is saying women will only be allowed in this country if they're going to be barefoot, pregnant, and in the kitchen. I think what's problematic with this bill is that the results of some of the provisions have a different impact on women. So I wanted to ask both Eunadie and Avvy whether or not there is a differential impact because of things like the prohibition on sponsorship of a family member if you're on social assistance? Is it a problem for women, given the new provisions concerning internal flight alternatives? Is it a problem in respect of the requirement for refugees to produce identification documents? Is it an added problem for women because of the increased focus on interdiction? Those are the kinds of things I think it would be useful for the committee to hear, and see where we go from there.

Ms. Eunadie Johnson: Some clarification and increased focus on...?

Ms. Judy Wasylycia-Leis: Help us to understand, I guess, the impact of this bill on women in respect of—

The Chair: I think Judy wants some specifics.

Ms. Judy Wasylycia-Leis: Yes.

The Chair: Everybody talks about this general feeling that it might be anti-women or it might not have had a gender analysis put to it. So I think the committee is looking for some specifics, and she gave you a few examples of what we've heard. Perhaps if you can now.... If not, Eunadie, you may be able to write or give us that information in the next little while, so that we can properly assess it, once you've given it some additional thought.

Ms. Avvy Yao-Yao Go: I'll just name a few things now, and I'm sure Eunadie and others can add later.

Any system that focuses on economic power would have an impact on women, because in our society, as well as in many other societies in the world, there is an inequity in economic power between men and women. So for instance, as you focus more and more on independent immigrants and less and less on family class, you will also see more and more immigrant men coming, as opposed to immigrant women.

I don't have the current figures right now and I'm not even sure if Immigration is doing that kind of statistical analysis, but immigrant women tend to come as family class immigrants. They tend to be sponsored. Men tend to come as independent immigrants, because of those requirements regarding independent immigrants. You must have skills, you must have money, you must have education. We know that, particularly in some other countries where women have less access to education, less access to high-paying jobs, you would tend not to be able to meet the selection criteria under the independent clause. So what do they do? They have to come as dependants of the men. Anything that deals with the sponsorship issue would also have an impact on women because they are the ones who are being sponsored, as opposed to the ones who are sponsoring.

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But then any further restriction on the ability to sponsor would also have an impact on women because the sponsoring requirement also focuses on economic power and economic ability. I would think and I would submit that if you deny people who are on social assistance from sponsoring, it will have more impact on women than on men.

These are just some of the examples I can think of.

Ms. Eunadie Johnson: I can very quickly give you a few examples. Specifically, when I talked about gender-based persecution, including violence against women but also issues like female genital mutilation, we've had situations before where a couple of women have been granted status before the Immigration and Refugee Board, and some have not.

I guess it depends on whom you meet or whom you speak to. There's no consistency in how this is applied on the killing and forced sterilization, bride burning, and infanticide of female children. We don't want all these little girls being born; we want all boys, so therefore...and all of those areas in terms of gender persecution.

But more importantly and lately, the fastest-growing group of people who are contracting the HIV-AIDS virus is women. Women are in no position, economically or otherwise, to refuse to be with their partners. These men have multiple partners, and all these women are contracting the HIV-AIDS virus. You have no power to leave the situation—no economic power. That is also part of gender persecution.

When we look at a bill where Canada's Department of Health was talking about—I don't have the full list—testing people who are coming from different countries in terms of HIV-AIDS, then you have women and children again being affected more because these are the numbers that are contracting the HIV-AIDS virus. It's also about gender persecution and socio-economic...but it's also about race—women from certain countries.

I remember even...if what Jean Augustine says is right, she came here from Grenada maybe some 30-odd years ago and is proud to say, “I came as a domestic”. I think what she needs to add is that, because of Canada's racism and racist society, she had to come as a domestic, because she was a teacher in her country. Why wasn't she recruited as a schoolteacher? Why did she have to come as a domestic and then pursue further studies to become a teacher? Those are the things I'm talking about.

Ms. Avvy Yao-Yao Go: A domestic is another example—

The Chair: I'm sorry.

Ms. Avvy Yao-Yao Go: Okay.

The Chair: Anita.

Ms. Anita Neville (Winnipeg South Centre, Lib.): I was going to pick up on the specifics, but I can't help responding, Eunadie, to your example of Jean Augustine—to respond because of the opportunities Canada provided her. She's now a member of Parliament as well, so one has to look at that.

I don't want to get into a debate. I'm sitting here and listening to you, and all that you are saying is valid and true. I'm not arguing with anything that you're saying. What I'm trying to determine in my own mind is the impact of Bill C-11 on it and what the bias may be in the bill that has an impact on women. I'm not disputing anything you're saying in terms of women's health and women. I'm aware of the live-in caregiver program and the many who feel abused in that program.

As Mr. McCallum said, we've just come back from a tour of immigration posts in Asia, and there will be a pilot project there in working with the live-in caregivers in the Philippines, in terms of what their rights are in coming to Canada. They don't have to live in abusive situations, and the opportunities for education will be available to them before they come to Canada.

My understanding is that for a woman living in an abusive relationship, should she choose to leave the relationship, it is still mandatory for the sponsoring spouse to support her if she is not able to support herself. Bill C-11 doesn't change that. That is currently the requirement, and that has not in any way been changed. So what I'm looking for are the specifics in the bill that discriminate against women, and I need some help on that, please.

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Ms. Eunadie Johnson: The non-existence of any specific mention of women and the understanding of how the bill would have an impact on them—I think the absence of something keeps you out. If you are not there, then nobody remembers that there are specific issues.

Around the table here, well, okay, look, one man of colour, two men of colour, no women of colour, no black women. So I have a concern in terms of the input and what the discussion is going to be ultimately. I have some faith that there are people here who are understanding enough to bring forward the issues, but the very fact that I'm not present, or anyone like me is present...then I have a concern about what the outcomes will be.

So when I see no mention or recognition of the specific impacts on women by making special mention or by talking about issues or changes in the bill that would have a positive impact on women, then that concerns me. So specifically, it's where in the bill do the specific issues that have an impact on women come forward?

The Chair: Thank you.

Joe.

Mr. Joseph Volpe (Eglinton—Lawrence, Lib.): Thank you, Mr. Chairman.

Maybe as a challenge for you, Ms. Johnson, you can contact all the members of Parliament who are of “colour”, although I always thought I had a colour. But, at any rate, you might call them and monitor how they'll vote on this bill. I think it would be an important exercise.

I wanted to focus on two very quick things, although they've been dealt with, and one is the issue of common law. I'm coming at it, Mr. Chairman, from the perspective of somebody whose office is inundated with immigration cases. One-half of my staff deals exclusively with this. On the issue of common law, I'd look for, I suppose, a legal approach to this. So far as I can attest or verify, immigration officials tend to look very, very seriously at marriages that are performed or executed in places that don't have all the alleged checks and balances that we have here. There isn't a certificate by the legal authorities, the religious authorities, etc.; there's a requirement for video, for pictures, for statements, affidavits by all the people who attended, etc.

Does the way this legislation is written make it easier for somebody who establishes bona fides in marriage elsewhere to be accepted as an immigrant, all other things being considered equal, or does the insertion of common law confuse that? I'm not sure.

The second item, because I want to leave you with it, is the women's issue, and again Ms. Johnson raised that. The largest single component of immigration cases in my riding happens to be live-in caregivers.

Now I think—and I'm prepared to be corrected on this—the overwhelming majority of live-in caregivers are women. So this particular component of immigration law deals exclusively with women. Nobody has really addressed what happens to them, and, by the way, they're absent here. Even though we have a Filipino member of Parliament, we don't have a Filipino member of Parliament on this committee, or any representations by the Filipino community. But invariably, those women find that they also would like to either bring a family member from the Philippines or, as it happens, they get into relationships with people here or elsewhere and become sponsors. Typically they're in situations where they themselves are sponsored, and they're having difficulties.

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Now I know you wanted to say something, Ms. Go. I'm wondering, does this legislation in any way address the problems of those women—these aspiring migrants, aspiring permanent residents, and potential sponsors of family class? Does it correct any disadvantages, or does it enhance any advantages? Would you please clarify that for me?

Ms. Avvy Yao-Yao Go: No, it doesn't. This legislation is completely silent on the issue of live-in caregivers, and it does not address that program at all. So again, that's something in the regulations under the selection of immigrants.

When I looked at the proposed regulations on the Immigration and Citizenship website, it seems they're looking for that increased level of education. People with PhD and MA degrees get 25 points, but the issue of live-in caregivers is completely unaddressed.

I think that's an example of how the system fails to address women's issues. In part, this is because women's work is not valued as much. So rather than recognizing these women as skilled workers who come as permanent residents and would qualify as independent immigrants directly, we give them a lesser status because their work is seen as not as important as the other so-called skilled workers.

Regarding the issue of common law, however, I have to say that—

The Chair: I think that question was directed to Mr. Choudhry, though you're very well informed on all the issues.

I should tell my colleague Joe Volpe that we did hear extensively about the caregiver program from witnesses in Winnipeg and Vancouver. The issue has been raised, and the matter of how it impacts women has not been lost in the committee's memory.

Mr. Choudhry, with regard to common law.

Mr. Zubair Choudhry: I will request my colleague to elaborate on this particular point.

Mr. Lamba.

Mr. Bikram Lamba (Individual Presentation): The concept of common-law spouse has no validity in most of the areas of Asia, South Asia, Southeast Asia, the Pacific, and Africa. At present, our immigrants are mostly from those parts.

I had thought your earlier question confirmed whether this bill clarifies the problems people face where there's no systematic certification of marriage. No, it does not. As a matter of fact, it further muddies an already confused situation. In most communities of Asian and Pacific Rim countries, the moment a marriage takes place it's a legal marriage. Entries are made and certificates are issued.

The creation of “common-law spouse” is a loophole to impose on somebody other than the legally married spouse. That sort of thing hits two ways. One, it strikes at the sanctity of marriage—the sacrament, rather than the legal contract. Two, it provides a loophole to people who want to create a diversion and take advantage of it, to make things harder for the legitimately married partner. So this issue has not been addressed properly. Rather, as I said earlier, it further muddies an already confounded situation.

The Chair: Thank you, Mr. Lamba, but you should know two things. Common-law marriages and relationships are recognized in this country, and have been under family law for a number of years. As to what other countries are doing, I don't know. But the fact is that in this country, that's the law—we recognize common-law relationships.

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Also, this country now has a law that says the common-law relationships could be opposite-sex or same-sex. That's the law in this country now. When we pass this legislation, if we pass it, it's to make sure our visa officers or officers overseas understand the Canadian law and apply it to applicant couples—whether they're same-sex, opposite-sex, common-law, married in a church, or married civilly.

The laws in Canada are pretty specific now, and I don't want to get into a debate as to whether or not people agree with them.

Anyway, thank you all very much. As you can tell, you've invigorated us this afternoon. You've given us some very good food for thought in all your considerations, and all your input is very worthwhile. I thank each and every one of you.

Mr. Joseph Volpe: The point I was asking about, and I'm sure others will address it, is that immigration officers apply the law as they see it practised in the country from which the application originated. They don't judge people from the Punjab, let's say, on the basis of Canadian law, but rather on whether the applicants have complied with the laws of the Punjab.

The Chair: Good point, Joe. Thank you.

We're going to ask for our next witnesses. I know we're running late, but that's obviously because we're very interested in this issue, very engaged. I would ask them to come forward, please.

Colleagues and witnesses, thank you. My apologies again for running a little late, but as you can tell, our members have an awful lot of questions on your briefs and presentations. I think that's a very good sign. I want to thank you in advance for your submissions and for your hard work on behalf of the Canadian community.

We'll move quickly to the Coalition for a Just Immigration and Refugee Policy, Sudabeh Mashkuri.

Ms. Sudabeh Mashkuri (Coalition for a Just Immigration and Refugee Policy): Good afternoon. Thank you, Mr. Chairman and honourable members, for granting the coalition this opportunity to present its view on Bill C-11.

Our coalition is a broad-based group of nearly 75 national, provincial, and local community organizations. Their make-up is diverse, but they have the common goal of working for just and fair immigration and refugee policies in Canada.

My name is Sudabeh Mashkuri, and I'm actually a staff lawyer at the Barbara Schlifer Commemorative Clinic in Toronto—a community clinic that assists women who are survivors of violence. We provide counselling and legal, cultural, and informational services for women who have survived violence and are trying to lead violence-free lives.

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As a member of the coalition, my clinic is very pleased to present our brief. I won't go through everything; the brief is 27-odd pages long, with 51 recommendations—we've done a very thorough job of analysing the bill.

I've also included a list of the coalition's membership, as well as a list of some of the countries that recognize dual citizenship and some that don't. This is included in case there are any questions on why some landed immigrants do not become Canadian citizens. One reason is often that some landed immigrants do not want to lose citizenship in their original country.

I'm aware that I only have five minutes and you're running over time, so I will briefly summarize some of our coalition's concerns. I'm going to concentrate mainly on the refugee protection section of the bill, and I would like to share some real experiences that my clients have had in Canada.

I think a lot of your questions about gender persecution and the impact of this bill on women will be answered by comparing the present Immigration Act and the new bill, and seeing what some of the differences are. So I'll use basic discretion and try to keep my clients anonymous, but I will use the examples of certain countries and what has happened to women from them who have come to Canada.

To begin with, I think the first thing that jumps out at everyone reading Bill C-11 is the language. It's difficult to understand, and even more difficult for a layperson to interpret. I do a lot of training with service providers in Toronto. I've tried giving them parts of the bill and asking “Do you understand how this affects your client group?” Most of them can't understand what impact it would have on their clients, because it's so difficult to understand for anybody who's not a lawyer or a legislator.

I think one of the goals of the previous legislative review was to make the process of immigration and refugee claims much more transparent. This hasn't happened, especially since, as we all know, many of the more important aspects are being left to the regulations, to be drafted later. It's discouraging to think that the fate of my clients, who I see daily, will be decided by some bureaucrats who've never even seen them.

First of all, I'd like to talk a little bit about the process of refugee protection. It's obvious that the bill does not include any changes to the appointment process at the Immigration and Refugee Board. Right now there are two members at the IRB, and if there's a split decision, the positive decision goes to the claimant. But since this bill proposes single-member panels, the quality of the decision-maker is much more important.

Therefore it's very important that the bill sets out some mechanisms for transparent mandates, arm's length, and an accountable procedure. Appointments to the refugee board should be developed in consultation with organizations that work with refugees.

One of the most important aspects of the new bill is the once-in-a-lifetime claim for refugees. Later on, when I speak about my clients, you will see how this negatively affects women, especially women from the third world. Basically, we're concerned about the denial of the right to make second claims, even though the circumstances of the claimants, or the circumstances of their countries of origin, may have changed.

For example, let's take Tiananmen Square in 1989. Let's say a failed refugee from China was here at the time. Under the new act, if that person wanted to make a new claim based on what had happened—perhaps he had become a student here and decided he's against the Chinese government—he could never make a second claim, because under this act, you have only one chance in a lifetime.

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I'm not talking about the pre-removal risk assessment, because that is not the same thing as a refugee claim. You don't have the same rights and protections as a refugee claimant.

Furthermore, while the bill introduces a new appeal process for failed refugee claimants, the proposed appeal under merit process is very limited, and it has to be submitted in writing based on the record of the original hearing. Many claims, including those for some of the women I represent, are rejected on the basis of credibility, which is hard to challenge in a written submission. Also, it would be difficult for a claimant to make a written appeal without the help of a lawyer, and many claimants do not have that help due to inadequate legal aid coverage. Therefore, I would submit that all refugee claimants should have access to publicly funded legal aid so that they can retain counsel to represent them in these increasingly complex hearings.

Before I get to the examples I want to use, I just want to say that barriers for making refugee claims are particularly dangerous for women. This is what I'm getting at. Women are less likely than men to have access to information and counsel. Women who have survived sexual violence may need time and also information on the right to claim refugee status based on the abuse in their home country. The ban on second claims will hurt women who did not have an opportunity to explain their persecution in the first claim because their spouses were the principal advocates. Furthermore, some women may not have used gender persecution in the first claim and have subsequently learned of the right to do so in the second claim.

The first example is a woman who escaped from Tanzania. She came to see me. She was under a deportation order. She had been here for many years. Her first claim was based on religion and political opinion. Whether it was because of inadequate counsel or credibility issues, her claim was rejected. But the reason she escaped from Tanzania was not based specifically on that. She was escaping from an abusive husband and also a family who were going to perform female genital mutilation on her two little girls. When she came to me, she had already gone through the PDRCC process, the humanitarian and compassionate application. Everything had been rejected. She didn't know what to do. They were sending her back to Tanzania.

We decided to find a way for her to go to the United States for 90 days, because under the present act, if you leave the country for 90 days, you have a right to make a second claim on new grounds. Obviously, it can't be on the same grounds. She has just come back after 90 days, and we're putting forward a new claim for her based on gender persecution for herself, because she's escaping from an abusive husband, as well as for her two little girls, who are escaping from genital mutilation. That's one example.

The second one involves a client from Hungary who came to Canada with her husband, and they put forward a refugee claim. The husband was the principal applicant. She was the dependant. He was rejected. Violence happened in their relationship. He basically tried to kill her, so he was charged with attempted murder in Canada. He was in prison for two years, and then he was deported.

Right before he was deported, he told all his family members in Hungary as well as here that as soon as she returned with her children, he was going to kill her. We were able to put a second claim in for her based on gender persecution, that if she were to go back to Hungary, this man would be after her, and we showed that there was no state protection available for her. That is another example.

Lastly is my triumphant case, which involves a woman who came here from Russia. She was escaping from the mafia. She was raped by a group of men who had connections with the Russian mafia and the police. She started a refugee claim. While she was going through the process, she met a Canadian man. They fell in love and got married. He said to her, why don't you withdraw your refugee claim and I will sponsor you? She officially withdrew her refugee claim and he sponsored her.

While the sponsorship was going through, abuse happened. She called 911 and the police came. Her husband was charged with aggravated assault. But she also was arrested, because he had withdrawn the sponsorship without telling her. Therefore, there was an active deportation order against her because of her first refugee claim that was withdrawn. She was detained for five days at Celebrity Inn, which is a detention centre in Toronto. She was desperate. We got her to reinstate her refugee claim. She was successful, and now she's a landed immigrant.

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Those are some of the examples about the impact on women, which I think you were interested in hearing about. Thank you.

The Chair: Thank you very much. I'm sorry about having to move people along after five or seven minutes. I gave you eleven minutes. This information is very important.

Next are Mr. Dheer and Mr. Hancock on behalf of the International Association of Immigration Practitioners. Welcome.

Mr. Ramesh K. Dheer (National President, International Association of Immigration Practitioners): Thank you, Mr. Chairman.

Members of the committee, distinguished guests, and of course witnesses, the chairman already mentioned my name, Ramesh Dheer. I am the national president of the International Association of Immigration Practitioners in Canada. The membership of our professional organization consists of immigration consultants and immigration lawyers, and we have chapters across the country.

I have with me Mr. Douglas Hancock. He is a member of the board of directors and is in charge of public relations. With your permission, Mr. Chair, I will invite him to read our brief, and we'll go on from there.

The Chair: Douglas, welcome.

Mr. Douglas Hancock (National Director, Public Relations, International Association of Immigration Practitioners): Thank you, and thank you for the opportunity to speak.

Some of these concerns you've heard earlier today.

Our association is concerned about the definition of the family class and of relatives. We would welcome an expansion of the definition to include adult children up to the age of 23, as suggested in our brief.

With regard to education requirements, which are not just limited to the gender context but also to the practical impact, if grade 12 is not present, perhaps grade 10 with an opportunity to have a look at “demand experience” should be acceptable.

One issue we haven't heard much of today is Canada's need for skilled workers. Our association recognizes that immigration of skilled workers is desirable for Canada. The occupation list should be open and should allow for a fast-track process to be amended in a timely fashion, particularly recognizing that certain provinces have certain requirements based on changes in markets.

We would like to see the role of the Immigration Appeal Board with regard to refugees be reinstated, and we suggest that appeals should be to the board, as was the case in the past.

We've raised the issue of a pardon. We suggest that when a pardon is granted, it should be regarded as a clear record.

Our association is concerned about the processing of applications. We would like to see the system move toward paper processing where practical. We've targeted a 50% rate of paper processing. The current turnaround time in Canada is two to three years. The benchmark in Australia is six months, and that is seen by our members to be a desirable goal to work toward.

Like previous speakers we are concerned about the role of the immigration officer and the powers they might well have under Bill C-11.

Our association wishes the committee to consider an amnesty. There are thousands of failed refugees still in Canada. The de facto residents should be allowed to submit an application, and after meeting certain criteria, they should be granted the entitlement to work in Canada.

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We've also raised in our brief certain comments on specific clauses in the bill.

The first comment is with regard to subclause 57(2), which deals with detention. We suggest that a review every week should be recommended.

In subclause 64(1) we suggest that a right of appeal should be afforded if a finding is made that an immigrant is inadmissible for security reasons. We suggest that this is a matter of natural justice and not an unreasonable balance of competing considerations between national security and the liberty of the individual.

We also suggest, with respect to clause 112, that an appeal to the Immigration Appeal Board should be allowed in respect of a pre-removal risk assessment.

Subclause 168(2) deals with the withdrawal of an application. An applicant would be precluded from withdrawing his or her application where it constitutes an abuse of process. We suggest that there should always be the right to withdraw, subject simply to paying reasonable costs in the circumstances.

We've highlighted a few other miscellaneous matters in our brief. For instance, caregivers presently require a grade 12 education, and we suggest that this be changed to grade 12 and that credit be given for experience. As well, caregivers should be allowed to upgrade their education while they're here in Canada.

Our members are concerned about the screening of applicants in foreign countries. Our members have noted in particular the office in Bucharest.

Our association has a particular concern about the establishment of a licensing regime for immigration department practitioners. We would welcome that.

We also have expressed some concern with respect to the easing of criteria for family class applicants where there are non-serious medical issues.

That's a whirlwind tour through our comments on Bill C-ll.

The Chair: Thank you so much, Douglas and Ramesh.

We'll go now to Sungee John from Status of Women.

Ms. Sungee John (Chair, Immigration Committee, and Actions Treasurer, National Action Committee on the Status of Women): Thank you.

The National Action Committee on the Status of Women would first like to acknowledge the aboriginal people and the Haudenosaunee territory, the lands we currently occupy, before we present our brief.

The National Action Committee on the Status of Women welcomes this opportunity to share our opinions and concerns with the House of Commons Standing Committee on Citizenship and Immigration. As Canada's largest feminist organization, representing over 700 member groups, NAC is disturbed by the lack of consultation in the tabling of this legislation.

Furthermore, as an organization that is inclusive of all backgrounds of women, be they women of colour, black women, aboriginal women, women with disabilities, or lesbians, we are concerned that inclusion is not prevalent in this legislation.

In her press release, the Minister of Citizenship and Immigration, Elinor Caplan, appeared more intent on appeasing the anti-immigrant voices by strategically putting the “tough on criminals” stand ahead of the immigrants and refugees themselves.

In this brief we're highlighting some key issues in terms of the impact that some of the legislation will have, we fear, on women. We have a fuller brief that we will be submitting, but in light of the five minutes we're given, we'll try to be as brief and concise as possible.

As a signatory to such UN covenants as the Convention on the Elimination of all Forms of Discrimination against Women, or CEDAW, the Convention on the Rights of the Child, and the human rights declarations, Canada must live up to its obligations. Furthermore, at the Fourth World Conference on Women, held in Beijing, one of the key directives of the platform for action calls for the implementation of a gender-based analysis in all policies and programs, be they regional, national, or international.

Since Canada is also a signatory to the platform, gender-based persecution should be not only recognized in the immigration regulations but also entrenched as legislation. That's one of our recommendations. The other recommendation is that gender-based persecution should be listed as grounds for refugee status.

The use of the term “foreign national” is unnecessary, we feel. It serves only to exclude permanent residents and others from participating fully in Canadian society. This language would encourage xenophobic and anti-immigrant attitudes. Therefore, that term should be removed.

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Not all refugee applicants are granted status at their first hearing. Decisions of the IRB are not always made with appropriate understanding of and sensitivity to the individual cases of refugees. Only recently has the government acknowledged that violence against women constitutes a credible reason for seeking asylum. Women living in violent or abusive situations often cannot make that claim due to fear, isolation, and/or dependency imposed, usually, by their spouses, who are the principal applicants in a refugee claim.

Immigration lawyers themselves may not be trained or sensitized to recognize gender abuse. It is usually the second or third application before women realize that domestic violence is a credible reason for seeking asylum. Therefore, we recommend that refugee applicants should not be limited to only one chance to make a refugee claim.

Under the proposed legislation, it would be virtually impossible for people living on social assistance to sponsor families. By disallowing people receiving social assistance the right to sponsor their families, the government will increase hardship for these families, in particular women. Discrimination on the basis of economic status undervalues the work and contribution of women, many of whom work in low-wage service sectors. The women will be better able to establish themselves economically with the support of family members in Canada.

While Bill C-11 mentions “family reunification”, it defines family through the narrow parameters of the mainstream nuclear model. It overlooks the full meaning of family, which would include grandparents and siblings. Therefore, we recommend that the economic status of a Canadian citizen or permanent resident should not be a determining factor in sponsorship. People receiving social assistance should not be discriminated against when applying for family reunification. As well, we recommend that the definition of family needs to be expanded upon beyond the nuclear family model.

Bill C-11 introduces measures allowing for the arbitrary arrest, detention, and seizure of documents of permanent residents. Furthermore, based on a broad definition of serious criminality, permanent residents could lose their freedom and face deportation. Quite literally, a permanent resident may be arrested and detained at the mere whim of an immigration officer, all without the due process that should be a right.

Women in abusive relationships often live in fear of having their sponsorship terminated. They often are not aware of their rights. Therefore, the legislation should clearly protect these women. We recommend that permanent residents have the right to due process under the Charter of Rights and Freedoms and that sponsored immigrant women who are living in abusive relationships should be allowed to stay in Canada without risk of losing their permanent resident status if they leave their spouse.

The temporary worker is vulnerable to abuse and exploitation because they are dependent upon their individual employer's demands in order to maintain their work permit. For example, the live-in caregiver program discriminates against women who enter Canada as caregivers and domestic workers. It devalues the work that has largely been the responsibility of women—their experiences as mothers and homemakers.

The LCP imposes a live-in requirement for women and does not allow them a choice in their employer, no matter how abusive the employer may be. This program is both racist and sexist, because the vast majority of LCP workers are women from the south. Therefore, we recommend the elimination of the live-in caregiver program as is. Instead, women should be offered permanent resident status, thus recognizing their labour skills and the economic contribution they bring to Canadian society.

Since its implementation by the Liberal government in 1995, the $975 right of landing fee has been a barrier for women, especially for women from the south, where $975 is often several years' worth of wages. This fee creates systemic barriers based on race and class. We recommend that the right of landing fee be revoked.

The debate around detention of refugees and refugee claimants came to the forefront during the summer of 1999, when 599 Chinese migrants were arrested and detained in British Columbia. The treatment of Chinese migrants can only be attributed to the government's reactionary response to the anti-immigration hysteria from an ultra-conservative minority.

From a human rights perspective, it is nothing short of racist and xenophobic. Combined with the continued racial profiling of Chinese migrants, one can compare such treatment with the deportation of African-Canadians under the danger to the public provisions of the Immigration Act.

Last year in Ontario, more than 30 youths, the majority of whom were under 18 years of age, were arrested and incarcerated. They were Chinese youths. They were denied access to education, and in many cases minors were jailed alongside adults. Some were bullied and some were physically assaulted.

In March the special rapporteur on the rights on migrants submitted a report critical of Canada's treatment of the Chinese migrants. In her report, Gabriela Rodriguez Pizarro wrote:

It should not be forgotten [that the Chinese migrants] are victims twice over, since they are also the victims of trafficking.

• 1555

I'll go through the recommendations to speed things along. We recommend that the Immigration Act clearly establish that children should not be held in detention and that immigration officers must find alternatives that protect, rather than criminalize, the child. Immigration must work within provincial ministries to ensure that children are placed in group or foster homes. The federal government must establish a common standard, furthermore, that defines the protection of children in accordance with the UN Convention on the Rights of the Child. No further expansion should be allowed for the power to detain. That deals with expanded powers to detain refugees who are without documents. There are also concerns—

The Chair: Sungee, if I could interrupt here, you're reading word for word what we have on paper.

Ms. Sungee John: Okay.

The Chair: We're capable of reading it. That's why I ask people to give us a summary of what's in the documents. So if you could, please, wrap it up. I'm sorry; I'm pressed for time. I've got hundreds of witnesses that want to be heard on this, and I need to move things along. So we've got your thing. Could you just wrap it up in terms of your main recommendations, please?

Ms. Sungee John: You can read before you all the recommendations. We think that, first of all, the government needs to demonstrate some vision in terms of how they deal with the growing problem of global migration. Global migration will not diminish. It will not stop. It will continue and increase in the future. Until the government recognizes this issue and looks at the impacts of its policies on those countries, on the issue of poverty, on the issue of gender persecution, of systemic racism.... Those issues need to be fully discussed in consultation with civil society, NGOs, and stakeholders before passing legislation that will forever change the Immigration Act.

The Chair: Thank you. I should mention for everyone that the National Action Committee on the Status of Women, a national organization, is of course making interventions at every one of our stops, and you have a consistent message, so I applaud you for that. Thank you very much.

We're going to go right to questions. Inky.

Mr. Inky Mark: Thank you, Mr. Chair, and thank you to our witnesses for being here.

I just want to start by responding to the comment about the boat people. I agree that it was a knee-jerk reaction. That should tell us about the society we live in. It's knee-jerk because people don't understand the immigration system and don't know the numbers. When you look at the numbers, the boat people amount to almost nothing. Even the idea that 68% of the people come here for economic reasons and 31% are family reunification.... Out of the 200,000 people that come here, we only accept something like 26,000 refugees. Again, I think education is key to make sure that people see the big picture and not just react to any one little particular thing that comes up from day to day. I again say that the media are responsible for a lot of this. Maybe I'm part of the problem as well, which the chair may agree with.

Let me make two other points. That was an excellent point on the business of appointments to the IRB based on merit. In fact, that was a recommendation made by the committee's report on securing our borders and seeking a balance, which I will be tabling an amendment to change.

Another one is that, because of the problems that are alluded to with the way...people problems...I think we need an ombudsman provision in the bill, which I'm currently making an amendment to deal with, so that people have somewhere to go to to complain other than going to lawyers—not that I have anything against lawyers, but they need a place to complain about the actions of public servants.

One point that was brought up yesterday in Winnipeg that was a concern—and I think I need to address two of your examples—was the lack of transition on the enactment and application of this act. The lack of transition time, I think, will create a lot of problems because one of the continual complaints we hear about is that it takes two to three years for applications to go through the system. So how's this going to come into play when the act, whenever it goes through the Senate...bang, we start using a new set of rules, applied to an old set of applications? So I'd like you to respond to that particular question.

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The Chair: Sudabeh, why don't we start with you? We like to pick on lawyers and economists in this committee for some reason, so you don't have to feel slighted. We've done it to everybody across the country. So go ahead.

Ms. Sudabeh Mashkuri: Well, I would imagine that, like any other new law that comes into effect, there would be sort of a grandfathering period. No? There won't be?

So I guess I would recommend that I have to put in all my claims right now for my clients. But I'm not sure. I guess it would have to do with how the government would see...what would be the cut-off point? At what point would your application be under the new rules, or under the...? Well, then there should be a transition provision in the bill.

The Chair: Thanks for the legal advice.

Inky.

Ms. Sudabeh Mashkuri: I didn't know there wasn't one. For example, I definitely think there should be a transition provision. That is a very.... Actually, I'm glad you brought that up, I had no...I missed that altogether.

That's going to affect a lot of the people that I deal with—clients—because they have applications. I have clients that have applications in—humanitarian, compassionate application going back three years—and I have refugee claimants who have been deemed to be claimants. There are convention refugees, but they're in limbo. They don't have any identity documents because of war, or because some countries don't issue documents to women, especially if they're escaping from their abusive partners, because the partners are the ones who apply for that. That was another question that was asked before—how that affects women.

The Chair: Clause 190.

Sungee, same question.

Ms. Sungee John: Well, I certainly think, in terms of the lack of transition, that it's more incumbent upon Parliament, then, to carefully discuss this and consult with people before they pass the legislation and make appropriate changes, giving people time and perhaps changing some of the concerns we've raised.

The Chair: Okay.

Douglas, any comments?

Mr. Douglas Hancock: Yes, I think the point is a good one with respect to the transition comment. I'm a lawyer as well, and I didn't pick up on it either, but I think it is well worth considering.

People who have been in the process for that period of time end up with really a vested interest in the existing legal regime, and any change in their legal rights creates a whole host of problems in itself.

The Chair: Okay, thank you.

Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: At least two witnesses have mentioned the right to a second appeal. I must tell you that the examples you have provided have been very informative. I think that as a committee we should envisage reintroducing this measure, which does exist in the current legislation, to allow the right to a second chance. Everybody has a right to that apparently.

Ms. Sungee spoke of eliminating the assistance program to residents' families in order to reduce bias based on gender. Well, then what will happen? There are a certain number of domestic workers who arrive with... Will they be able to meet the existing criteria to receive permission to immigrate?

[English]

The Chair: Sungee, do you want to handle that first question with regards to the LCP program, and then Sudabeh can answer on the second application?

Ms. Sungee John: Sure. With regards to the LCP, we feel strongly that the program, yes, should be eliminated, and women should come under their own merits.

We also feel strongly that the immigration criteria should be changed to acknowledge the contribution of women who bring with them these skills that don't merit the points that they should. I think that the whole screening process by which you judge a person's skills and contributions should be reassessed.

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The Chair: Sudabeh, let me ask the question of Madeleine in this sense, if I could, because I'll just bootleg my own little question. How do we stop the revolving door and hence the balance of being able to afford a person a second opportunity, such as the examples you've noted with regard to your clients? How do we stop the revolving door of people, once they've been refused, who keep going into the system? Perhaps you could answer that.

Ms. Sudabeh Mashkuri: Well, I find the whole revolving-door analysis to be, as Mr. Mark was saying, about the media. In my experience, about 80% of the second claims are successful. How many times can they go through? Four or five times. You have to leave the country for 90 days. How difficult is that for some people? It's very difficult, and I don't think that happens a lot. I think that's a myth. I used to work for the Department of Justice, so I used to be on the other side. I've seen that there are not that many revolving-door cases.

I just want to say something, because this is very interesting. I took a cab here, and I was telling the cab driver where I was coming. He said to me, “Oh, so are they going to stop all these immigrants coming through and all these refugees who are bogus who are coming here and take our...?” This is the mentality. This is the backlash mentality, that everybody thinks these refugees are undeserving and are going to go through this revolving door.

Now maybe there are some who abuse the system. I'm not saying that every refugee who comes through is perfect and has had a hard deal. But I don't think by having such a harsh provision that refuses to give a second chance to a genuine refugee we can actually stop the revolving-door phenomenon. I think perhaps there should be some provisions on maybe twice you can do that. I'm not sure. I haven't thought about how you can do it. And there are different grounds. Obviously you can't do it on the same grounds. You have to leave the country. Who can get a visa to go to the United States to come back in? That's very difficult. Most immigrants and refugees from the third world can't do that.

The Chair: Thank you for clarifying myth as opposed to reality. That's what we hear, and I'm happy you mentioned that.

Joe.

Mr. Joseph Volpe: Mr. Chairman, compare her answer with the last intervener as part of an organization that might be able to address that with greater clarity. Maybe you can save your judgment until then.

I want to ask one question, because we have the advantage of having—

The Chair: A short question, right, Joe?

Mr. Joseph Volpe: I always have a long question with a very short answer.

The Chair: Why don't you try it differently this time, a short question—

Mr. Joseph Volpe: I've been hanging around with Judy Wasylycia-Leis too long.

I want to take advantage of the fact that we have a representative from the National Action Committee on the Status of Women. We have discussed over the course of the last couple of interventions—and you've heard them—the disadvantages faced by women under the current act and perhaps under the proposed act.

One of the issues has to do with women sponsoring new spouses. If such women are from a divorced environment and they come primarily from Southeast Asia, immigration officials almost wholesale at first request—on the first application they say this is a bogus marriage, because invariably it involves women marrying younger men. For religious and cultural reasons, they become less attractive as mates unless they have something else to offer. They go back home and find they are more attractive, because they have an opportunity. They have another asset. I'm sorry to reduce this to an economic arrangement, but many marriages are partnerships and economic arrangements.

Our immigration officials, using criteria that are religious, cultural, and particular to that environment, immediately turn down the application on those bases. But nobody here has come to the aid of women who want to marry a younger man and who have gone through the process...to insist that these are bona fide marriages and that immigration officials have no business challenging the legitimacy of a woman's decision to marry a younger man. Is that a failing of our immigration system, or is it because organizations such as NAC are no longer relevant to women's issues?

The Chair: Sungee.

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Ms. Sungee John: I disagree. I think organizations like NAC are very relevant. I think we're relevant in spite of the funding cuts we're faced with by governments such as yours.

The fact of the matter is those issues are being challenged, whether it's by women on an individual basis or by women's organizations. NAC, as a national organization, will challenge issues on policy. We don't take one-on-one cases. So our member groups and individuals within the regions will tackle those cases. You might have met some of them.

I agree that in the areas of women seeking sponsorship, they themselves run into the patriarchy within their own culture, as this world is still very patriarchal, and women are still very much second class. I think it's a matter of educating the immigration officials, making sure they're sensitized to the culture and ensuring there's a gender analysis and a gender perspective in their decision-making, and in fact throughout the whole legislation.

The Chair: A final question from John.

Mr. John McCallum: I have a very quick question to Mr. Hancock. It may not be totally fair. You favour an amnesty, and I like the idea of an amnesty, but what would be the arguments against it and how would one counter those arguments? I know if I make an argument, someone will have a counter-argument, and I like to know it in advance.

The Chair: In other words, he's setting you up so you can—

Mr. Douglas Hancock: I think one of the great skills of a lawyer is the ability to argue both sides. Fair enough, it's a loaded proposal and certainly not without competing considerations. One of the obvious competing considerations is that it in essence legitimizes cheating. How do you realistically counter that? That is not an easy argument to rebut.

The Americans have tackled this issue, not solely as it relates to immigration, but as it relates at least to taxpaying. That seems to be how the Americans have been able to build a consensus on bringing these people out of the underground economy, making them taxpayers, and ensuring that their economic activity is recognized and is taxed. I think that is the most competing way to build a mainstream view of how an amnesty can be rationalized.

It doesn't by any means have to be an unequivocal amnesty, and of course it wouldn't be. It would be based on criteria. There have been other societies that have tackled this, such as Belgium. You can build a political consensus. I think a major challenge facing the immigration regulators and the immigration practitioners is education. Things that are really generalizations and concepts are, when we really come down to it, not necessarily facts.

The Chair: Thank you. A supplementary to the very same question.

Mr. Inky Mark: Thank you, Mr. Chair.

The government has lost track of 15,000 people, for whom they have warrants. In your estimate, how many people are out there who are looking for amnesty? How many do you think it should apply to?

Mr. Ramesh Dheer: Mr. Chairman, with your permission, sir, I have been practising immigration law for the last 25 years. Based on my experience I think we have approximately 300,000-plus people living underground. There is no doubt about it.

The Chair: With that shocking statement, I want to thank you all very much—

Mr. Ramesh Dheer: I can make a simple calculation. The last time a backlog program was brought in was about 12 or 13 years ago. Since then, there has been no easing of the immigration situation from the government. Every year approximately 30,000 people make refugee claims. One-third are denied. I am talking approximately. So you multiply 12 or 13 years with approximately 10,000 or 15,000 people every year. Hardly 10% of them are being removed from Canada.

• 1615

In addition, people are entering by back doors. Even when the backlog program was brought in, a lot of people did not come out of the woodwork. There were approximately 300,000 people.

The fact is we are not saying they should be regularized just like that.

To answer John, I think there should be some kind of criteria. The people who qualify in terms of establishment should be given landed immigrant status. Those who do not qualify maybe should be given work permits for two to three years to give them time to become established. That is the only way.

On one side, we're talking about abuse toward women. There is also abuse toward men by some unscrupulous business people in our country who employ and underpay them under the table. By doing so, these people will be taxpayers. They will buy houses and cars. I can assure you that their families, who are not here, will join them. Actually, it will be a boost to the economy.

People say it is regularizing cheating. The fact of life is people have migrated to better countries from time immemorial. Canada is known for its economic standards. When you hear from the United Nations that we have the best standard of living in the world, number one, people are naturally attracted. People do come in by back doors, no matter what kind of laws you bring in.

As I said, I've been doing this for 25 years. I know horrible stories. Some people have suffered to come to Canada and make refugee claims here. Whether they are false or true claims is beside the point. They suffered.

This is what we should do. We will try to control our borders more carefully to have legitimate people come in. At the same time, if we think we'll be able to guarantee nobody is going to come from behind the doors, I think we'd be deceiving ourselves.

Government hasn't done anything for the last thirteen years to regularize the status of the people who are underground.

The Chair: Mr. Dheer.

Mr. Ramesh Dheer: I'll be very quick, sir.

I want to make this comment without prejudice. I don't even know if I can do that or not.

The Liberal government has always said they'd like more immigrants. In my 25 years I've yet to see the Liberal government bring in one program to legitimize the status of the people who are here by any means. They have been suffering. Last time it was brought by the Tory government. It was thirteen years ago. Nothing has been done by the Liberal government for the last thirteen years. I think it's time to do that.

Thanks.

The Chair: Thank you. Mr. Dheer, I won't question your experience or your sincerity. With regard to the 300,000 number, you just took that out of the air, based on a very simple arithmetic formula. Unfortunately, guaranteed by tomorrow, the media will say there are 300,000 people who are secretly here underground. I'm not sure it's the number we've been working with. I just want to indicate to you that I appreciate the fact that you have an awful lot of experience. You just took that number of 300,000 people out of the air. I don't think it is being fair or responsible.

Thank you very much.

The committee wants five minutes to take a break.

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• 1626

The Chair: Welcome to our new set of witnesses, and again let me thank you for your time and input on this very important bill that we have before us and are considering. Sorry for the delay.

We thank you for coming in advance and hearing some of the discussions we've already had. You might prepare your answers based on some of the questions you have already heard.

From the Canadian Bar Association, Robin Seligman.

Ms. Robin Seligman (Chair, Canadians for Fair and Just Immigration Policy): I am a lawyer. I am with the Canadian Bar Association, but today I'm appearing on behalf of a coalition of which the Canadian Bar Association is a member—that is, Canadians for Fair and Just Immigration Policy.

The Chair: Okay.

Ms. Robin Seligman: I'm appearing with Michael Schelew and Mario Calla from COSTI.

The Chair: Okay, and they're all here to help with the questions we're going to ask?

Ms. Robin Seligman: They have brief presentations.

The Canadian Bar Association is being represented by Ben Trister and Stephen Green.

The Chair: Okay, great.

Stephen, do you want to take us through the Canadian Bar Association's presentation?

Mr. Stephen Green (Past Chair, Canadian Bar Association, Ontario): Basically, I've picked one issue to discuss and Ben has one issue to discuss.

The Chair: Okay, go ahead.

Mr. Stephen Green: I would like to thank you and the committee for permitting us to appear.

I'm going to deal with one issue—and I know you've been provided with some issue papers. It's issue paper 2, dealing with the right of permanent residents to enter Canada and a hearing to determine their status.

Under the present Immigration Act, a permanent resident has the right to come into Canada and has the right to appear before an immigration adjudicator—or a judge, as we call them. Then if they lose there, they have the final determination before the Immigration Appeal Board.

What will this bill do? It will significantly change that so that appeal rights for permanent residents in Canada will be based on your nationality. That's what we have in this present bill.

What do I mean? The bill says if you are a permanent resident and you are outside of Canada, you will require a document—let's call it a facilitation or travel document—to board an aircraft. If you don't have that document, you would go to an embassy or a consulate and say, “Hi, I'm a permanent resident; I believe I meet the requirements of physical presence or for permission to be away”, whatever those requirements are that you are referring to. You will be provided with this facilitation document, basically a boarding pass, to get on a plane. It lets you fly back to Canada, and then you would be permitted to enter.

If the immigration officer says no facilitation document for you, you have the right to appeal under this bill. You file that appeal in writing, and it goes to the Immigration Appeal Board. It can be done telephonically or in writing. But if you are an American citizen permanent resident of Canada, or if you are a German national permanent resident of Canada, you don't need that facilitation document, because you don't need a visa to get on the plane. So you can fly to Canada and you can appeal in person before the Immigration Appeal Board and argue your case. So what we are doing is making a distinction between permanent residents who are nationals of countries that require visas to enter Canada and permanent residents who are nationals of countries that don't require visas. So under this act we are setting up an appeal system based on your nationality, and we very much oppose that.

Those are my comments.

The Chair: And your solution?

• 1630

Mr. Stephen Green: My solution is that we should permit every permanent resident of Canada the same appeal rights.

If I'm a permanent resident from Russia, I should have the right, as it exists today, to get on that aircraft and come back into Canada. We shouldn't permit various nationalities to have different rights. We believe in equality under section 15 of the charter.

The Chair: Thank you, Stephen.

Ben.

Mr. Ben Trister (Immigration Lawyer, Canadian Bar Association): Thank you. You're going to be receiving a couple of issue papers shortly from the Canadian Bar Association, one on the term “foreign national” and the other on an issue related to what Stephen said. I'll comment briefly on both.

First, on “foreign national”, I know there has been some discussion here and you've asked the department to go back. I would simply say the Canadian Bar Association's view is that permanent residents ought not to be labelled “foreign nationals”, because of the same reasons you've all been concerned about.

The solution is simply to amend the definition section to add the words “or permanent resident” after “Canadian citizen”, so that “foreign national” does not include a citizen or permanent resident, and then everywhere “foreign national” appears in the bill, add the words “and permanent resident”. It's simple.

If the department is trying to suggest to you that it's a hard solution, that's it. It's very simple. Do it in word processing and it's a done deal. If, however, you find that's an unacceptable solution and you buy the argument the department has that permanent residents must be under one label, our recommendation is that the phrase “non-citizen” be used.

If the department says they want to say “foreign nationals” because they want to know that they're non-citizens, why not just call them non-citizens? It's descriptive, so it's not a label; therefore it's more palatable. So those are our recommendations on the term “foreign national”.

The Chair: Thank you, Ben.

Mr. Ben Trister: If I can—

The Chair: Yes.

Mr. Ben Trister: On the permanent resident card issue, under Bill C-31 the permanent resident card functions like the returning resident permit does today. Effectively, if you had that, you could come into Canada and you wouldn't have to prove your fact situation or how you satisfy the residency test. Bill C-11 breaks that link. The problem with that is, every time an immigrant comes back under this bill, they're going to have to prove that they've met the residency requirement.

As a very quick example, if you're abroad because you're accompanying a Canadian citizen, when you come back through the border you could be challenged to prove that for 730 days you were in the company of your Canadian citizen spouse and that both of you were abroad. How would you do that? Would you provide boarding passes? Would you have a sworn affidavit? Every single time you come in, you would be subject to providing your proof.

Our suggestion quite simply is, like Bill C-31 had, if you hold a permanent resident card, you're immune from challenge of meeting the residency requirement during the validity period of the card. So the next time you apply for a new card, you are going to have to prove that you met the requirement; otherwise you don't get a new card.

But while you have the card, it's proof, and it would be tremendously efficient at the border because they don't have to ask everybody who comes back to prove what they've being doing for 730 days out of the last five years.

Thank you.

The Chair: Thank you, Ben.

Robin, on behalf of the Canadians for Fair and Just Immigration Policy.

Ms. Robin Seligman: Thank you.

I'd like to introduce briefly who the coalition is. We've provided materials that include the list of coalition members.

We represent, as I mentioned, not only the Canadian Bar Association, but over 50 organizations across Canada, including COSTI—Mario Calla is here; the National Congress of Italian-Canadians, which you'll hear from later; B'nai Brith; the Canadian Hearing Society; and many other organizations. It truly is a national coalition.

COSTI is the largest immigrant service organization in Canada. It services over 30,000 immigrants per year and employs over 200 staff, who speak over 41 languages. We're pleased to have Mario Calla speak to the issue of removal of permanent residents without a right of review.

Before he speaks to that, I'll introduce Michael Schelew as well, who is the past president of the Canadian section of Amnesty International, past president of the Canadian Council for Refugees, and the former deputy chair of the refugee determination division of the Immigration and Refugee Board.

I have been the chair of the Canadian Bar Association for Ontario for the past three years. I have been certified as a specialist in immigration law, and I have been practising for over 16 years. So we come to you with various backgrounds.

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With respect to the bill, the coalition's position is that the bill is not a Canadian bill. It does not reflect Canadian values. It's not a fair bill. It's a negative bill. It's an enforcement bill. It is framework legislation that set out...it may be more expeditious to dealing with the goals, but we don't feel that the means justify the goals. The process that has been presented to you isolates decision-making. It tries to remove the department from independent review, and we'll speak to that separately during the speeches by my partners here. The Auditor General's report has confirmed the inadequacy and the lack of quality in decision-making in the department.

With respect to the issues, we've presented six issues. I don't intend to discuss all six. We'll discuss three very briefly today, but you have these as being our key issues. I will speak to downloading of a lot of authority to regulations; Michael will speak to the leave issue, the imposition of leave; and Mario will speak, as I said, to exclusion of permanent residents without rights of appeal.

With respect to downloading, the present act under section 114 specifically enumerates approximately 70 areas that you could download to regulation. Only four of those sections deal with permanent residents. Under the new bill, almost everything and anything can be downloaded to regulation, which we think is an undemocratic and a dangerous process. Regulations, in order to be passed, are not subject to the scrutiny of any parliamentary process. What happens is the department drafts the regulation; they go through their administrative process internally; they are gazetted for 30 days, and then they will be passed. During that 30 days, the public are entitled to make submissions. However, they are not subject to appearing in front of a standing committee. There is not necessarily a proper debate.

Now, if you just take a brief look at the bill in your spare time...if you glance through, you will see clause after clause, and I know you've reviewed, apparently, clause 5 this morning.... Every clause, after every category, says anything and everything can be downloaded to regulation. We look at this as a dangerous departure and as giving too much authority to the bureaucratic system. I'd like now to pass it to Mario to speak to removal of permanent residents without rights of appeal.

Mr. Mario Calla (Executive Director, COSTI Immigrant Services): Thank you for the opportunity to address your committee. I will speak to clause 64 of the bill. That's the section that deals with deportation of permanent residents or recognized refugees.

Currently, the decision to deport a permanent resident or recognized refugee is a two-step process where the adjudication division issues the removal order and the appeal division considers all the circumstances of the case. Both divisions are independent tribunals of the Immigration and Refugee Board. What Bill C-11 proposes is that any permanent resident who is convicted for a serious criminal offence and receives two years' imprisonment or more will be deported without any right of review by the appeal division.

There is reference to appeal to the Federal Court. However, that appeal is looking at process only—whether the law was followed. It does not allow the submission of the substance of the case, the merits of the case. The danger is that then people could be deported without any consideration taken as to how long they've lived in Canada; whether they've been here since childhood; whether they have a spouse, children, or parents in Canada; whether the conviction is an isolated event; or whether there is a real likelihood of rehabilitation. We believe this is wrong and that there should be the opportunity to raise these issues. Even under the current law, as you know, there have been a number of situations where there have been deportations of people, basically, to a country that they did not know. They'd been here since childhood.

Our recommendation is that clause 64 be deleted from this bill. We believe that permanent residents who have lived in Canada for five years or more should be given an absolute right of review before the immigration appeal division deports them. Thank you.

The Chair: Thank you.

Michael.

Mr. Michael Schelew (Representative, Canadians for Fair and Just Immigration Policy): I believe the committee is familiar with leave and the current status quo, where there is a no-leave provision. We have it on refugee claimants, and it's been severely criticized by the Inter-American Commission on Human Rights. It says that in Canada it's used as a form of docket control, and it does prevent refugee claimants from getting the judicial protection they need. Why would you be doing that and going in that direction now for decisions abroad?

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The Auditor General did say in his report that currently in the department there are problems with the consistency and quality of decision-making. There are problems with the training of visa officers abroad, and the department doesn't have the resources and the operational capacity to carry out the required tasks. Why would you want to impose leave in a situation like this?

The Federal Court monitors what happens in the department. There are only two groups of people that can monitor the department in Canada—you, the politicians and parliamentarians; and the Federal Court.

We talk about accountable government. Do you realize now that between 55% and 60% of all decisions abroad that are appealed to the Federal Court are overturned—55% to 60%? Why would you want to impose leave if it's clear there's a problem? If you impose leave, and you've seen what happens with the refugee claimants, only about 10% of these cases go forward. There's no rationale in policy for you to do this.

The department needs the monitoring. The Federal Court, I suggest, can even do it better than the politicians, and you would weaken the system. I don't even know why it's an issue.

If you look at the statistics, in 1999 there were 850 judicial reviews out of 25,000 refusals. That's only 3.2%. Only 20% of the Federal Court caseload is just in immigration matters. So there are no floodgates; there's no increase.

We're talking about small numbers here, yet the principle is very important. Do we want accountable government, or don't we? Do we want the department to run immigration policy, or do we have to have checks and balances? This is not the time to impose a leave requirement. It should never have been imposed in the first place on refugee claimants.

You Liberals were in opposition at the time when that was done. The Conservatives were in power, and you were hotly against it, for the reasons that the Inter-American Commission on Human Rights has confirmed—docket control and denying judicial protection. Now you're going in this direction for overseas decisions, and I don't know how you can justify it.

The Chair: Thank you very much.

We move to the Canadian Centre for Victims of Torture.

Ezat.

Mr. Ezat Mossallanejad (Policy Analyst, Canadian Centre for Victims of Torture): Let me convey a message from my colleagues. They all thank you, honourable Joe Fontana and the honourable members of Parliament, for giving us this opportunity to raise some of our concerns about Bill C-11.

Let me begin with a little bit of information about the centre. Since its inception in 1977, the Canadian Centre for Victims of Torture, CCVT, has provided services to over 1,100 survivors of torture, war, and organized violence from 110 countries. The centre is the first of its kind to be established in North America and the second such facility in the world.

Working with the community, the centre supports survivors of torture in the process of successful integration into Canadian society, works for their protection, and raises the public awareness of the continuing effects of torture and war on survivors and their families. CCVT's mandate is to provide its clients with hope after horror.

As to the bill, we confirm the bill's comprehensive and holistic approach to the protection needs of individuals, specifically victims of torture. We also confirm broadening the definition of family class, better treatment of children, an appeal process for the failed refugee claimants—of course, compared with the current practice.

We are concerned about detention, and we feel that there must be no new grounds for detention in this bill. We support prioritizing hearings for refugee claimants in detention and we recommend the determination of a maximum period, at the most six months, that a person could be kept in immigration detention. We also request national standards for immigration detentions.

We have had clients who were, in our assessment, wrongly posed as national security risks, and there is no accessibility or accountability in terms of decision-making on the part of the Canadian Security Intelligence Service, CSIS. We propose that these serious gaps be addressed in the new legislation.

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We are concerned about our clients who are victims of torture and who have been unable to express themselves during the refugee hearings because of their torture, and whose medical documentation is not given due attention by the CRDD members. We therefore recommend a clear-cut provision in the legislation itself requiring specific policies and guidelines dealing with the victims of torture in their refugee hearings.

We feel that Bill C-11's direction for the removal of serious criminals from Canada is inadequate and ineffective. We believe that removal should not be approached as a shortcut in resolving the complicated problem of war crimes and crimes against humanity. Deportation should not act as a substitute for punishment. We believe in prosecution rather than deportation in this case.

There are also some areas where Bill C-11 is silent. For example, there is no adequate and explicit reference to anti-racist and anti-xenophobic training for officials and accountability to that effect. We recommend an independent ombudsperson receiving complaints to that effect, on the basis of article 15 of the UN Convention Against Torture.

We have some special requests, Mr. Chairman. We request a clear-cut, transparent provision on torture survivors with special reference to Canadian international obligations, especially the Convention Against Torture. In this connection we would like to reiterate the need for the incorporation of the Convention Against Torture, especially the following provisions, into the Immigration Act. That is based on the recommendation of the UN Committee Against Torture of last year to the Canadian government.

First, article 3 of the Convention Against Torture explains the principle of non-refoulement. That means that under no circumstances should a person be returned to a country in which he or she will be at risk of torture. This is regarded by human rights and torture rehabilitation centres as an absolute, and it cannot be balanced with such considerations as danger to the security of the public or risks to national security.

Second, training about torture and the rehabilitation needs of survivors is very much lacking for CIC officers, IRB members, staff in enforcement centres, and immigration detention authorities. The gap should be filled by incorporation of article 10 of the Convention Against Torture.

Third, the above is similarly true about article 11 of the Convention Against Torture, which speaks about minimum standards of interrogation, arrest, and detention. We are particularly concerned about enforcement and detention because on the basis of our experience, detention centres could potentially be hotbeds of torture and cruel and inhuman treatment.

Finally, Mr. Chairman, there is a need for Canada to define cruel, inhuman, or degrading treatment or punishment and to develop mechanisms for the accountability and prosecution of officers who commit such offences. This involves article 16 of the Convention Against Torture.

Mr. Chairman, thank you again for your kind attention. We do hope our feedback will be useful in your great endeavour.

The Chair: Thank you, Ezat.

Next is the Chinese Canadian National Council, Gloria Fung and Cynthia Pay. Welcome.

Ms. Cynthia Pay (Vice-President, Chinese Canadian National Council): Just to let you know, the Chinese Canadian National Council is a human rights and equality organization that has been around for over 20 years. We have 28 chapters across the country. We've been involved in advocacy on immigration policy throughout our history. Also, we're a member of the Coalition for a Just Immigration and Refugee Policy, which you heard from earlier today.

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We are concerned about the negative and criminalizing approach of the new bill.

We're going to focus on four main areas, and those are detention, enforcement, family reunification, and permanent residency.

In the area of detention and enforcement, as you know, the bill sets out wider powers of detention and also strong enforcement penalties. We're concerned that a lot of the motivation for this increase in power is a backlash against the Chinese migrants who came to Canada in 1999.

As you know, there are already three grounds in the existing act for detention, and the bill adds new grounds, such as detention for the purpose of completing an examination. There is also the government statement that detention on the basis of being a trafficked person may also be added to regulation.

It's our position that the existing grounds are extremely broad and in fact were used successfully to detain most of the Chinese migrants. So why do we have to add more? We don't need more grounds.

We also would suggest that any new grounds should never be added to regulations but should of course be subject to public discussion and the legislative process. No grounds for detention should ever be on the basis of your status; for example, whether you're part of a group of people who are trafficked into the country. We would find that to be discriminatory. We think that in such important cases involving liberty, each person's case should be looked at carefully based on the facts in that situation.

Also, we'd like to remind you that the people who are trafficked are actually victims of crime, and it's quite ironic that victims of crime are being imprisoned, so-called for their own protection. Another important point to remember about the issue of trafficking is that even the CIA agrees that most victims of trafficking are in fact women and children, and I think that's another gender piece of the puzzle you need to keep in mind.

We would ask that you look at alternatives to detention. As other speakers have mentioned, liberty is a very important right in Canadian society, and it should be violated only under very narrow circumstances. Some of the ideas that have been suggested are a flat time limit, for example six months, after which you should no longer be detained, or some form of halfway house community release where you're not detained in such a restrictive jail-like setting.

One of the places where this was actually very successful was with some of the children who were detained in Ontario. I'll get to that in a minute. The main point is that when they were in group homes where they could have some freedom of movement, none of these children actually disappeared. Although they were able to leave the homes, they were in a more humane environment, in contrast to later on when they were moved to centres for young offenders with convicted people or adult detention centres without any kind of protection or supervision or access to education. That obviously violates their rights under the Convention on the Rights of the Child. So we're happy it says that children will be detained as a last resort.

But the federal government needs to work with the provinces to make sure that if they are detained, it is in a humane setting and not in a young offenders centre. We don't think what happened in Ontario should ever happen again.

Finally around detention, let's look at the root causes of why people are migrating. Detention is not going to solve that problem. I think part of the bigger picture we should look at is expanding how we're letting people into the country, not just focusing on the very highly skilled immigrants, because we do need all kinds of people to come to Canada. I think with the idea of an amnesty in the U.S., the U.S. government is saying that their economy would collapse without those undocumented workers. We need all kinds of people in Canada as well.

I'll just pass it to Gloria to speak about the last two issues.

Ms. Gloria Fung (National Executive, Chinese Canadian National Council): Hi, I'm Gloria Fung, the national executive of the Chinese Canadian National Council.

Today I'm going to address two major issues within the bill, namely, family reunification and permanent residency.

Under family reunification, first of all, we would like to commend the government for its positive proposals designed to broaden the definition of family class, to increase the age of dependent children, to create an in-Canada landing class for sponsored spouses and partners, and to reduce the length of sponsorship from ten years to three years.

However, we would also like to express our concerns about the following issues: first, many of these positive policies are not going to be dealt with within the bill. They are going to be dealt with by regulations, which will be without any parliamentary process or public consultation. This will prevent the public from providing informative and constructive feedback to the government. Therefore, we recommend that the government entrench the commitment to facilitating family reunification within the bill.

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Secondly, many of these positive proposals are very limited in the scope of their application. We recommend that the government should apply all proposals facilitating family reunification to all other family class members as well, such as parents, grandparents, and fiancé(e)s.

The new bill proposes that recipients of social assistance not be allowed to sponsor family members, therefore practising discrimination based on economic status. We feel that Canada, as a signatory to many international covenants that amplify the importance of family rights and human rights, should not put any bar to family class sponsorship merely on the basis of sponsors receiving social assistance.

The government should also take into account the specific economic circumstances; the length of sponsorship breakdown before taking any legal action to collect; and, last, there should be no restriction of appeal rights of sponsors, regardless of the reasons for refusal. Each individual case should be judged on its own merits.

Regarding the permanent residency issue, we welcome the proposal for two years of physical presence during five years to retain permanent resident status. However, there's no longer any option for the permanent resident to apply for a returning resident permit. The proof of residency is based entirely on an ID, which has to be periodically renewed.

We feel that the government should provide discretionary provisions for business immigrants, students who have to study abroad, and also those who may not be able to meet this restrictive residency requirement for valid and compelling reasons. Also, permanent residents should be allowed to enter Canada for an immigration interview, inquiry, and/or appeal.

The new bill redefines the status and rights of entry of permanent residents and bars entry when their status is challenged. It defines a permanent resident as a person who is not a Canadian citizen, and it also includes a status person. This policy emphasizes their foreign origin and downplays the connection to Canada. We at CCNC do not see any purpose in putting permanent residents, with a genuine attachment to Canada, into the vague category of so-called foreign nationals.

This contradicts the government's repeated statements about welcoming newcomers and integrating them into our inclusive society. It also expands the immigration officer's discretionary power.

The Chair: Thank you very much. I'm sorry, but I have to keep things on a rather tight timeline. This committee is a real loving committee.

Before I go to questions, with regard to the regulations, I should just clarify that they will come back to this committee for scrutiny and for public debate. Perhaps you've heard it before, but this committee obviously takes the matter of the regulations very seriously. The fact is, regardless of how many regulations we have, they'll come back. We believe, as you've indicated, that there should be transparency and accountability, rather than the old method.

Secondly—I just want to bring you up to date on where we're coming from—the committee has heard that maybe the legislation ought to have a mechanism for review, to make sure that if and when other regulations arise, they should always come back to the committee. There should be that review provision in the bill. So far that's what we've heard. I wanted to bring that to your attention in case you hadn't heard.

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Inky will start the questions.

Mr. Inky Mark: Thank you, Mr. Chairman, and welcome to all our guests this afternoon.

We've all heard the Prime Minister say that we, in this country, respect the rule of law and, following that, the right to due process. In fact, we believe in it so much that we actually sent lawyers to China. Mr. Volpe and I were over there this past month. We're teaching their lawyers how to operate by the rule of law and their judges how to operate from the bench.

The more I hear about this bill, and the more legal minds I hear from, essentially one of the biggest problems in this bill is that we remove the right to judicial review. I find it rather ironic that this legislation doesn't respect what this country believes in as a philosophy and a principle. I certainly agree that subclauses 64(1) and (2) should both be deleted.

There are two areas I want to ask you about, and the first one is about permanent residents. Perhaps it's easier to redefine permanent residents as someone, using the old terminology, who's a landed immigrant so that they have landed immigrant status both in and out of this country. Perhaps that will deal with it.

The other one is on the whole issue of residency cards. I still don't know what the rationale for residency cards is. Would perhaps extending the duration to ten years improve the predicament that we create for ourselves by issuing residency cards? Those two things I'd like you to address.

Mr. Ben Trister: There are a couple of purposes for the residency card. One is that the government wants to be able to periodically force immigrants to prove that they've maintained their connection to Canada. So if you double the period of time, it means they'll be able to do this less frequently. I think more importantly, from the government's perspective, is that they charge airlines for allowing people to come here when they're not supposed to be coming here and when they don't have the status.

So by having a five-year card that allows you to board the plane, it really is saying to the airlines, “It's okay, for these people we won't come back at you. We'll accept the risk for the first five years, but if you let anybody on the plane without the card or the facilitation document and we find that they go through a hearing and they're not successful, we're going to tag you with the bill.” Those are the policy rationales that I've been told. I hope that helps.

Mr. Inky Mark: So should we just eliminate the card business altogether?

Mr. Ben Trister: The card should function like the returning resident permit. Our friend talked about the need to have some way of knowing before you leave that you have the assurance of coming back. Everyone who has the card should be allowed to come back without having to explain themselves, and those people should explain themselves only when they have to apply for the new card. It's a simple thing. If you have the card, you come in. That would solve the problem; if we go back to what the intention was in Bill C-31, it would be all right. It's still onerous from a bureaucratic perspective because there are going to be a lot of applications for this thing, but that's the choice. It's a policy choice the government makes about how much it wants to control.

Mr. Inky Mark: Perhaps a comment on the landed—

Mr. Ben Trister: I think the solution we've suggested was simply...landed immigrant or permanent resident; they're interchangeable. The Americans call them “permanent residents”. It makes no difference. They're not descriptive of anything different. They are effectively, in common parlance, the same thing. So the issue is, do you think they should also be labelled under the foreign national or can we split them out effectively? We've suggested how to do that. I think the solution I've mentioned would cover you off.

The Chair: John.

Mr. John McCallum: I have a few questions, and maybe I'll ask them all at once. This may not be a smart question. I'm not a lawyer. But let's suppose you had a very dangerous, bad person who, if sent back home, might face the risk of torture, and so therefore we wouldn't under any circumstances. But what do you do with the person if he's very dangerous but he hasn't committed a crime in Canada? What do you do with him or her?

Second, none of us like the term “foreign nationals” applied to landed immigrants. Your solution is to say “foreign nationals and landed immigrants”. Can you give me a counter-argument to that, and why anybody would object to that and what's the response to the counter-argument?

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Third, I've done this before, but in Vancouver and Winnipeg we suggested a number of amendments to some of your CBA colleagues who seemed reasonably impressed even if they didn't go all the way. I would like to list those very briefly and maybe get some reaction.

One, there was never the intent to have an immigration official be able to deport a landed immigrant. So it's proposed to amend clause 44 to ensure that inadmissibility permanent residents always be determined by an independent adjudicator at the IRB.

With regard to examinations, it could have been the case that, as I think one of you said at one point, this was the Stalinist thing where people could be taken out of their house in the middle of the night. This amendment would make it clear that examinations would only occur when somebody had an application of some sort to the department. One of your colleagues really liked this one, because he proposed the identical thing in terms of limiting regulation-making authority in clause 5. It is to simply delete the part “or that it considers necessary to carry out the objectives of this Act”, which would significantly circumscribe regulatory power.

So my question is, I know that doesn't go quite all the way, but what do you think of all that?

The Chair: Robin first, and then Stephen.

Ms. Robin Seligman: Thank you. I'd like to comment on the last issue, and I'll let my colleagues comment on the other two.

With respect to clause 5 and the downloading of regulations, that's a good step, but the concern is that although you have assurances that regulations that will accompany this bill will come to the committee, it's not necessarily enforceable that this probably would happen. The problem is the future, and I understand what you're saying, it would have to be in the bill that any regulations would be subject to going to committee and going through some type of debate process, but that's not how regulations work.

So when there is a change of government—

The Chair: That's why we proposed it.

Ms. Robin Seligman: But if there is a change of government and it's not proposed in the act, then typically what happens is it's 30 days' notice and that's the end of it, and it passes. So it's not subject to parliamentary debate.

The Chair: Stephen.

Mr. Stephen Green: I want to comment very briefly on the appeal rights with permanent residents that you referred to in amending that section. I want to make it clear from our perspective that if a permanent resident is being removed, they would, by just going to the adjudication division and having their status determined with regard to their permanent residence for serious criminality, or for whatever reason...the adjudicator would not have any authority to look at any of the humanitarian and compassionate grounds; for example, if there are family members here, and so on.

Clause 64, which specifically prohibits that, would have to be amended so that a permanent resident would have the right to appeal before the Immigration Appeal Board and have all the circumstances of their case reviewed. That's very important, and it would have to be the specific amendment there so that all the circumstances of the case would be reviewed. All the circumstances are not reviewed when an immigration officer looks at it to decide if there is a criminal conviction and whether it's serious and statutory. If it's serious, the officer will therefore report, and therefore there will be no right of appeal that would entitle the permanent resident to all the circumstances of the case. So they must have that appeal for all the circumstances of the case.

The Chair: Ben, did you have something?

Mr. Ben Trister: I think you've heard the argument of the department on why they want to label permanent residents as foreign nationals, which is no more sophisticated than that that's what they are. I accept that that's what they are. I simply think we don't have the authority to place them at the same level as a visitor and people who are here on temporary visas. I think their argument that you can't find a way to do this for drafting purposes and it's what they are anyway so don't worry about it doesn't hold water, because there is...[Inaudible—Editor]

I think it's for the government to say, even if they are foreign nationals they are also permanent residents, and that's more important to us and that's the main label we want attached to their status.

You had another question?

The Chair: First I'm going to go to Cynthia.

Ms. Cynthia Pay: On your first question about the really bad persons, the scary immigrants, as I said, we already have three very strong grounds to detain someone, and danger to the public is one of them.

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But on the other hand, I don't know why you would make a distinction between the really scary person immigrant and the Canadian citizen, because of other human rights that come into play as well. We know that some people who are convicted and serve other sentences are released into the public, and we can't just keep them in prison forever, because they have a human right of liberty—right? So that's my point, I guess. We have grounds to detain people, but other human rights have to come into play as well.

The Chair: Do you have anything to say on that one?

Mr. Ezat Mossallanejad: If you ask me what the main obstacle is to the elimination of torture in the world, I have one word for you: impunity. We are very much concerned about prosecution of torturers and bad people. Take the extreme, a person who has committed crimes against humanity or the crime of genocide—what do you do with them? We have international standards, for example, article 6 of the Convention against Torture, the Rome Statute. So prosecute them, simply, do not send them back, because if you send them back, they would go with their impunity. And then you may tell me, if we prosecute that person and we put him in jail in Canada, not deporting that person, that would be some burden on the shoulders of taxpayers. Yes, but human rights have costs.

I was in Geneva and I witnessed Canadian efforts in moving a resolution against torture. Everybody admired that. If we say that it is okay if we send somebody back to torture, it would be a blow to our international leadership.

Second, when we speak about the principle of non-refoulement to torture, we don't say give them immigrant status or keep them in peace. We just say, don't send anybody back to torture, because of the horror of torture as a crime against humanity.

I want to share with you, honourable Chairman, that we are a living at the threshold of a new millennium. Torture is being committed in two-thirds of the countries of the world. In 80 countries where it is committed, it has led to death, and in 50 countries torture is being committed against children. That is the horror of torture.

Different human rights courts in Europe have specifically, categorically, mentioned the absolute nature of non-refoulement to torture, and why should Canada be different?

Thank you.

[Translation]

Ms. Madeleine Dalphond-Guiral: I want to ask you a question about the evaluation of risk before referral.

Theoretically, one must carry out a risk evaluation, but it appears that this is not done systematically. Do you feel that the bill should contain something which would ensure that every time a deportation order is handed down there would necessarily have to be a risk evaluation in all cases where the country of origin is recognized as not being democratic, as having a very poor record on human rights? Should that not be done systematically?

[English]

The Chair: Robin, I'm going to have to ask you, Michael or Mario—

[Translation]

Mr. Michael Schelew: I can answer that question if you wish.

We now have a policy where we do evaluate risk before returning people. I believe that Bill C-11 doesn't really change much as far as that goes. The problem is to decide who will carry out the evaluation. We would prefer that they be done by the commission and not by officials.

Ms. Madeleine Dalphond-Guiral: We met with people from the RCMP and from security services. What they told us is that all they do is collect the data. They don't do any analysis. I find that rather worrisome, because at a certain point in time something can fall between the cracks.

Mr. Michael Schelew: There is also another aspect to consider: who has the required expertise to carry out this evaluation? I would say that it is the independent commission created by the government which has this expertise. It is not the Department of Immigration.

Ms. Madeleine Dalphond-Guiral: Should we therefore specify whose responsibility it is?

Mr. Michael Schelew: We think that it would be a very good idea.

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[English]

The Chair: Supplementary, because I think that this is what we—

[Translation]

Ms. Madeleine Dalphond-Guiral: Joe, you always speak after I do.

[English]

The Chair: We asked the IRB itself, and the chairman of the IRB, if in fact the IRB was in a position to be able to assess that risk. They indicated that they felt more comfortable that the CIC was in a better position to do that.

Can you tell us why you think the IRB has that level of expertise? We asked the IRB directly about that very point.

Mr. Michael Schelew: They may have said that they were more comfortable that the CIC do the risk. But did they actually say that they didn't have the expertise to do it? Is that what they said?

The Chair: Yes.

Mr. John McCallum: My recollection is that they said that, when you have a situation where you have to balance the risk to Canada of the person staying versus the risk to the person who is being deported, they didn't have competence to do that balancing act and wanted the minister to do that.

The Chair: That's what I said.

At the end of the day, they believed that the expertise...the balance of security in Canada or the risk outside of Canada was better placed with the minister and CIC. I'm asking you, based on your experiences: is there anything that you can shed some light on?

Mr. Michael Schelew: First and foremost, it's not always a question of balancing because, with most of these risks, there's not criminality involved.

So if it's not balancing, and all you want to know is if the person's at risk, and there are no security issues, well, that's what the board does. If you have cases where there are security issues, then I can understand for political reasons why the board would want to avoid that.

But, however, should they? If they're told they have to do it, then they have to do it, and they'll do the balancing. Otherwise, perhaps it should be another committee that would do the balancing, but I do not think it should be within the bureaucracy. It should be an independent committee, perhaps with expertise on how to do balancing.

The Chair: Point well taken.

Judy.

Ms. Judy Wasylycia-Leis: Where to start?

I just wanted to note that we've come a long way since the CBA first appeared before our committee. When was that? A couple of months ago?

The Chair: It seems like a lifetime.

Ms. Judy Wasylycia-Leis: It seems like a lifetime, yes, and I think we've learned a lot as a committee. You can see there's some consideration being given to some amendments. You've heard John's proposals.

I pose this question first to the CBA. Can you give us a sense of the next three priorities we should focus on, since we're making progress step by step?

My other question is to the coalition. We were told at the outset that groups involved in immigration and refugee matters had been consulted and were generally supportive of Bill C-11. It would have seemed, based on your long list of groups that belong to your coalition, that this is not the case. Have you had a change of heart? Or were you just never consulted effectively to begin with?

The Chair: Questions have to go through the chair. I intend to chair the meeting.

Ms. Judy Wasylycia-Leis: Sorry. I apologize.

The Chair: Thank you, Judy.

First of all, the CBA, you may answer the question that Judy asked.

Mr. Stephen Green: We have a series of issue papers. We understand that you're addressing compelled examination. I would suspect that it would be helpful if you could carefully review the issue of returning residents in terms of the permanent resident card.

I don't know that you've focused on it, or if it's crystallized in your minds enough to have a solution on it. But it's going to be a huge problem because immigrants return to Canada every day by the hundreds, if not thousands.

So I would say that's an important issue. I think that we haven't really heard any articulation from the committee on the issue of leave and the imposition of judicial review. So that's one that would help.

I think on the downloading of authority to the regulation, we've been very concerned by the department's evidence. In fact, I've remarked to a colleague of mine that if the department said what it said in the context of a compelled examination, they'd be kicked out of the country for not being entirely forthcoming.

It's unfortunate that they choose to identify three small areas in which things have moved from the regulation to the bill and have basically glossed over the fact that the bill also gives them power to regulate on everything. That is something that is the core of the problem.

I would comment that I personally have been around Parliament since I was the first undergraduate parliamentary intern from McGill University to serve in a Liberal member of Parliament's office, in fact, and—

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Ms. Judy Wasylycia-Leis: What year?

Mr. Ben Trister: Early years. I think that framework legislation is incredibly dangerous to democracy. I think that the departments have an agenda. Our department, for example, has indicated that, well, another department has done it. This is the trend.

Well, if this is the trend, folks, you're going to have a lot more time on your hands. The government...in my day, in political science, bureaucrats were supposed to advise and give policy options, and you all were supposed to figure this stuff out and make the choices. What you're being asked to do is to cede your authority to the department in a massive way, and it's not just this department. If you do it in this bill, some other department's going to say, “Well, look, immigration did it; you should do it, too”. We have to stop it.

The Chair: Thank you.

On the other question, Robin, speak for your organization. I can't have everybody speak on—

Ms. Robin Seligman: Oh, no, I'll be speaking for the organization.

The Chair: —on the support, or lack of it.

Ms. Robin Seligman: Thank you.

Canadians for Fair and Just Immigration Policy was commenced after Bill C-31 was introduced last April. We have actively been opposed to the bill, and the position paper was amended for Bill C-11, but there weren't dramatic changes. You'll even note the date of it is last June. We've had the same issues; we've raised the same issues to closed ears, and we've never altered from our position that we're opposed to the bill. We're not happy with the bill.

There are a couple of minor things that my friend has mentioned that are positive to do with family class. Those could have been implemented by regulation and can be done by regulation right now. We don't need a very negative bill to raise the age of dependents to 22 or to eliminate medical inadmissibility for children and parents. Everybody can agree on those issues.

The Chair: Do you have any comments with regard to that question, Cynthia?

Ms. Gloria Fung: Yes. We feel that many of the important values which all of us treasure and subscribe to should be entrenched in the act itself rather than at the regulation level. When we look at regulation, it does not have to go through any parliamentary process or public consultation, even if it is going to be discussed at the various committees. However, the level of public consultation will be very, very limited, and therefore we suggest that some of the more important values and policy directions should be listed in the act as well.

The Chair: Thank you.

Anita.

Ms. Anita Neville: Mr. Chair, I hope you'll indulge me for a moment. I'm just trying to review some material.

I apologize to the delegation because I got caught on a phone call as you were making your presentation.

I want to present two changes that I've proposed along the way, but I have an even larger concern as I'm listening to you now, and I'm just reviewing some correspondence.

I have to tell you I'm a new member of Parliament. I was only elected in November of this year, so I don't have the history of the previous bill that came in, although I have read the documentation comparing the previous bill and the changes that have been incorporated into this bill as a result of the public hearings.

But I have to tell you that my understanding is that there has been very considerable consultation with the Bar Association on this bill. Some has been integrated into Bill C-11—not everything—and I'm really very concerned. I respect your right to come before us to express your concerns. I've met with many members of the Bar Association, both in Ottawa and in Winnipeg, where I'm from, but I am really concerned with what I perceive to be an adversarial position and a total lack of confidence and/or respect for those who work in the department, both on the front lines carrying out the work of the department and in developing policy and procedure.

I don't know whether anybody wants to respond to me on that, but I find it extremely troubling. I am too new to be co-opted by the bureaucracy. I've been a bureaucrat myself. I know how bureaucracies work. I have seen hard-working people coming before the committee, adjusting, accommodating, and responding.

• 1725

Mr. McCallum and I went with the minister and toured some of the posts in Southeast Asia. I know Ms. Wasylycia-Leis went to India with the minister and toured a number of posts there. For the most part the immigration officers, both Canadian-based and country-based, are people with integrity who work hard to preserve and implement the policies and procedures of this government.

I'd just like a bit of response from you, and then I'll tell you the two proposals I've put forward that have some bearing on it. What I was just reviewing was the correspondence between Mr. Green and the minister that acknowledges the differences but also acknowledges the many accommodations that have taken place as a result of the many consultations with members of the bar.

The Chair: I'm not sure the purpose of the legislation is to make the bar happy, but I'll—

Ms. Anita Neville: I understand that, Mr. Fontana.

The Chair: Only one can respond, so pick....

Go ahead, Ben. Mr. Trister.

Mr. Ben Trister: In our comments about the quality of decision making and the quality of the work done by officers abroad we have said nothing different from what the Auditor General has said. There are problems, and there are resource challenges. We acknowledge the resource challenges. We take no issue with the fact that most of the people are hard-working, well-intentioned people and even that probably the people who stray do so out of good intentions, not bad intentions.

If you listen to our comments and read the transcripts of what we say, I think you'll find that we don't say bad things about the department in terms of how they run the day-to-day operations given the challenges they face.

I would say that consultations to us have effectively proven to be a sham. Many of us believe that the department consults with us only so they can say they've consulted with us, but they accept very little of what we say. Whatever we say we bring forward in the context not of not policy issues but of bringing out how what they say would actually work.

I am a member of the Law Society of Upper Canada. The Law Society of Upper Canada's rules of professional conduct require me, when I speak out on matters of public policy, to speak out to support what I perceive to be the national interest. I cannot advocate on behalf of my clients when I speak on public interest matters; otherwise, I'd be guilty of misconduct.

I suggest to you that the Bar Association...if you look at our presentation, we tell you what we think the government is trying to do and why we think the government is not going to achieve its stated objective. I'm not telling you, for example, not to do two years out of five on residency. That's a policy choice. Nor do I say, don't introduce permanent resident cards. That's a policy choice. But I am saying that if you do certain things in certain ways, this is going to be the effect. And I suggest to you—and I have no hesitation in suggesting it to you—that when the department has presented its position to you, it has not presented all the facts. I think that's a shame. As a Canadian, I think that's a shame.

The Chair: That's part of our responsibility, to make sure—

Mr. Ben Trister: It's part of our responsibility too.

The Chair: —we hear the facts as perceived by the witnesses, but we ask our department. Believe me, so far we've met an unprecedented three times as we've gone through this process, and we'll do it again when we get back.

Mr. Ben Trister: I have one point to finish with. Our concern about the regulatory process is precisely the same thing. I would call your attention to when the government introduced the changes to the NOC, adopting the new dictionary of occupations over the old dictionary of occupations. The Canadian Bar Association said you were going to wipe out 40% of immigration, while the department's regulatory impact analysis statement published in support of the bill said it would affect—and I quote—“a handful of immigrants”. It affected in the end 35%; it wiped out 35% of immigrants who would have qualified but no longer qualified.

People have been fighting our position by trying to malign the purpose and role of the Canadian Bar Association in this debate. But our role is to present a non-partisan, legally based analysis of the legislation. That's what we offer you.

The Chair: Thank you, Ben.

In answer to the same question, Michael, on behalf of the coalition—

Mr. Michael Schelew: I'm also going to speak as a lawyer, even though I'm here on behalf of the coalition.

• 1730

Ms. Neville, in terms of your comment about the lack of respect you perceive that we have towards the department, we care very much about the rule of law, and I would like to think that you care about it as well.

Ms. Anita Neville: That's why I'm here.

Mr. Michael Schelew: All right. The courts are critical in this country for ensuring that the rule of law is respected.

We believe there is an attitude in the department—and it's not today, it's not yesterday, it's been there for quite some time—that the department does not like scrutiny. They don't like monitoring. Not all department officials are like this, but there is a body of opinion inside the department that wants to reduce the role of the courts in the implementation of the Immigration Act. We fundamentally disagree. I would hope that you fundamentally would disagree.

Judicial scrutiny, monitoring, accountability is critical for our government and our democracy here, and we would like you to protect that.

The Chair: Thank you.

Anita.

Ms. Anita Neville: I'm sorry. Let me just—

The Chair: Then I'll go to Joe and I'll come back to you in a moment.

Mr. Joseph Volpe: Thank you very much, Mr. Chairman. I hope you will indulge me as well. I'm going to need a little bit of indulgence.

The Chair: Everyone is testing my patience now.

Mr. Joseph Volpe: I've been going through these issue papers, as I think all of us have, by the Canadian Bar Association. I've been looking at the department's response and the minister's response. I always take these things in the spirit in which they're intended. Presumably that's to educate legislators. That's us.

I've learned in my experience to distinguish between thin and fat. Some of the material I've received—and I'm not going to be defensive of the interveners' presence, and not just the Canadian Bar Association but all the others as well—some of the communication back and forth can be very sarcastically characterized as “So, your mother wears army boots”. I would like to get beyond that, Mr. Chair.

In the final analysis, if I'm going to understand the depth of all that's involved in this legislation, I would like this committee to set up a round table where we have justice department lawyers, who are presumably the ones who are advising the department in the drafting of the legislation, be at the table with a selection of interveners such as those we have seen today, not necessarily all from the Canadian Bar Association but with a spectrum of expertise that this committee has already received prior to today. I want to have them together. Other committees have done this before. And then we would finish off our discussion with people at the table at the same time so that we can ascertain that the perception on particular sections is based on the same body of fact or on the same body of analyses.

I have to tell you that my dad would like to think I learned something when I went through school and got my degrees, etc., but every time I read something I find that somebody has a different perception. So I've gone out in the field the way that some of the people have gone. They've accompanied the minister, while I have not. I met some of the people in the field.

I have to tell you right now that there isn't unanimity among those who are in the public service on this legislation. And there was no unanimity on Bill C-31.

That having been said, Mr. Chairman, if you'd like me to move a formal motion to ask for that round table at the end I will do so. Otherwise, I would like all members around the table to consider my intervention as a request to each and every member to support that suggestion.

The Chair: I wouldn't let you put a formal motion because—

Mr. Joseph Volpe: I haven't given you 48 hours notice.

The Chair: Right, and it's not a vote in committee. You've been a chair, so you know that. And secondly, your consideration will be duly considered.

Mr. Joseph Volpe: Thank you very much.

The Chair: Now, put your question if you would, Joe.

Mr. Joseph Volpe: No, I'm going to give you a series of questions.

The first one is that we have heard from this group and that group, and from others earlier on, about some of the good elements or aspects of this legislation, but in every single instance I thought I heard people say that the department was in the position to do good today. In my mind, Mr. Chairman, this means that all of those positive aspects our interveners have attributed to this legislation—whether it's there or not, they've attributed it—can be accomplished by regulation...not by legislation, but by regulation.

• 1735

So this is my very first question to the people here, because I can't ask the other ones. Is there anything in this legislation as it stands today that's worth having that cannot be accomplished by amending the regulations as they currently exist? That's my first question.

The Chair: Thank you, Joe. Sorry, we have to move on.

Mr. Michael Schelew: I am going to speak only about the refugee provisions. My colleague just said, apart from the refugee provisions, no. But I want to tell you something. What the minister has introduced in terms of the refugee provisions is very important and is going in the right direction—for instance, the creation of the Refugee Appeal Division. In my view, that can only be done by legislation, to answer your question.

The Chair: Mr. Green.

Mr. Stephen Green: But there are many other provisions in our existing act dealing with the selection of immigrants and family class. All of that could be done today under our present legislation.

The Chair: Gloria, do you have any comments?

Ms. Gloria Fung: We feel that many proposals regarding “family reunification” can also be included in the bill, such as broadening the definition of family class, the creation of an in-Canada landing class, and also the inclusion of parents as part of the family class. These can be included in the bill instead of being dealt with at the regulation level.

Mr. Joseph Volpe: I have a point of order. My question really was, if there's anything that's worth while, such as what you mentioned, can that be done today through regulations or do we have to wait until the legislation is passed?

The Chair: I thought that's what I heard and was asking, but I think Gloria confused us. Joe's question was, for the things you'd like to see included, can you accept them being in regulations under the present act?

Ms. Gloria Fung: I think that accepting all of these proposals at the regulatory level will subject them to the discretionary power of officials and also will limit consultation.

The Chair: So you want new legislation.

Ms. Gloria Fung: Yes.

The Chair: Ezat.

Mr. Ezat Mossallanejad: In our view, as far as the protection of torture survivors is concerned, there should be some provisions in the legislation itself as guidelines for regulations and policies. That is very much lacking. There are some casual references to the Convention Against Torture, but there are certain provisions in the convention that should be specifically mentioned in the legislation itself.

The Chair: Robin, quickly.

Mr. Robin Seligman: I'd say, yes, a lot of the positive things that people are talking about could be passed by regulation right now, and we'd be very happy about it, such as increasing the age of dependents and broadening the family class, which CCNC talked about.

With regard to the legislation, changing the legislation to get this through quickly is unacceptable from our perspective. I don't think it's necessary. For the existing problems, changing the legislation isn't necessarily going to do the trick. The problem is resourcing and attitude and enforcement of the existing act. For example, a lot of the problems around the knee-jerk reaction to get rid of rights of appeal for serious criminality are based on several incidents involving people who were here without status. That's not going to change with new legislation.

The issue is that you have an enforcement mechanism now, but it's not being used properly. it can be. It's a matter of sourcing and funding. It's not necessarily the department's fault, but they need to fund the resources and to do properly what they now have the authority to do. Changing the act won't necessarily change any of that stuff.

The Chair: Anita.

Ms. Anita Neville: With your indulgence, Mr. Chairman, my understanding is that the amendments are being put forward as a result of the consultations with the Canadian Bar Association, particularly the provision that parents are members of the family class and the exemption from excessive medical demand for sponsored spouses, partners, dependent children, and refugees and their dependents. That's my understanding.

I see you shaking your head.

• 1740

I just want to try out two proposals that I put forward. And I thank you, by the way, for your responses to my questions. They were good ones. They were thoughtful ones. I think my issue still stands, though, and we can discuss it further.

In clause 42, which deals with access to the refugee determination system, I'm proposing that we add “A foreign national, other than a permanent resident or a protected person, is inadmissible...”

And then, on the access to the humanitarian and compassionate review, which I believe is one of the most important safeguards in the system, I'm proposing that in paragraph 26(c) we delete “in the case of an exercise of a power delegated under subsection 6(2), in section 25”. I believe it will remove the authority to place any limitation on access to a humanitarian and compassionate procedure by regulation.

So I just put that out for you. I know we have another group to meet with, but that is something that will be proposed.

The Chair: Thank you, Anita.

Let me wrap this up by first thanking you.

Secondly, there's no doubt that people want good legislation, and we are attempting to get good legislation. So far, based on submissions and consultations that have gone on for over three or four years.... Ultimately, don't judge the final product until we've actually heard all the witnesses and had our discussions as a committee. I don't want to throw out the baby with the bath water, so to speak, because I've heard maybe all the lawyers say, we've got a good act already; don't even touch that, but give me more regulations. At the same time, you're saying you can't trust regulations. So I'm getting mixed and confused signals.

There are a number of groups that are involved in immigration and refugees that obviously like certain aspects, and there is good and bad in every legislation. It's up to us to try to sort through that and improve it. At the end of the day, if we get good legislation and accountable, transparent regulations, then we've got the best of all worlds. I think that's what we're trying to do, and without your help we probably couldn't do it.

So thank you all very much for your input, and we'd welcome any further comments that you have for the committee before we actually get down to the hard task of clause-by-clause. Thank you all so much.

We're a little late. We have one final group that we'd like to get to: the National Congress of Italian Canadians, the YWCA, Ramgarhia, VIVE La Casa, and Mr. Mann, I believe.

• 1745

To our last witnesses for the day, thank you very much for having the patience and hanging in there with us. As you know, as you can see, we're very interested in your comments, your input, and we like to ask an awful lot of questions of our witnesses. So we want to thank you for your input and for taking the time and the effort, and for the hard work you do on a day-to-day basis.

We have the National Congress of Italian Canadians. Ciao. Come stai, Signor Carella? Let's talk a little Italian, and throw the interpreters all off.

Mr. A.L.P. Carella (President, National Congress of Italian Canadians, Toronto District): Heather McGregor of the YWCA has asked that I yield first position because she has an important board meeting to go to.

The Chair: Yes. Ms. McGregor of the YWCA.

Ms. Heather McGregor (Executive Director, YWCA of Greater Toronto): Yes. Thank you, Mr. Chair and committee members.

I haven't actually appeared at a committee like this before and was somewhat naive in my calculations about timing. It's great. It is.

The Chair: Thank you.

Ms. Heather McGregor: I'm the executive director of the YWCA of Greater Toronto, but I am here today representing the YWCA all through Canada with my colleague Darina Vasek, who works at the national office.

We are a national organization representing 42 YM-YWCAs across Canada from St. John's, Newfoundland, to Victoria, British Columbia. We're over 125 years old and we have a long association of working with immigrant and newcomer communities, and many of our associations provide many services for immigrants and refugees. At the YWCA in Toronto in fact we have a really great group of programs for immigrant children who have been victims of torture in their home countries.

Thank you very much for this new policy that is being proposed. For the consultation we have submitted a brief with 13 recommendations. I'd like to speak to three of them and say that we support the position paper on Bill C-11 submitted by the Canadian Coalition for a Just and Fair Immigration Policy.

Roughly 80% of the world's current refugee population are women and children, yet half the refugees received by Canada are women. Obviously this is our interest. We feel, therefore, that women are facing in Canada unequal opportunity, and in their home countries they are facing unequal access to land, resources, training, education, and other opportunities. And we feel that women also suffer gender-specific forms of persecution such as domestic violence, rape, torture, and genital mutilation.

The first recommendation we would like to concentrate on is that we would urge the conduct of a gender analysis of all current and proposed provisions under the new legislation. This has not been undertaken, or if it has been undertaken it hasn't been disseminated yet to the population.

The second point I want to talk about is the live-in caregiver program, which basically affects women. We encourage the government to improve the live-in caregiver program because of its impact on the women involved.

• 1750

Currently, women who are approved to come to Canada under this program are required to spend two years working as nannies or other types of caregivers while living with their employer. Only once they have met this criteria listed can they apply for permanent resident status. We feel that women who come to Canada to fill domestic jobs are similar to other immigrants who are selected to come to Canada based on labour market need and are landed upon arrival. We think it's unfair and amounts to a double standard to require this class of immigrants to carry such onerous requirements before they're even considered for permanent resident status.

We're concerned that this program isn't addressed in the proposed bill and these women remain very vulnerable. Our recommendation is that eligible applicants should be granted permanent resident status instead of temporary employment authorization upon their arrival in Canada.

The third thing is refugee women. We're concerned about further barriers being put in place to stop refugees who've arrived in Canada from having access to the refugee determination system. There are gender guidelines, but they're not law and they're not binding upon board members. We believe the bill should include gender in its own right or as part of a larger, open-ended list of social groups in the definition of convention refugee.

Barriers for making a refugee claim are particularly dangerous for women. Women are less likely than men to have access to information and counsel. Women who have survived sexual violence may need time and information on their rights to claim refugee status based on abuse in their home country. The ban on second claims will hurt women who did not have an opportunity to explain their persecution in the first claim because their spouses were the principal applicants. Furthermore, some women may not have used gender persecution in the first claim and have subsequently learned of their right to do so in the second.

So our third recommendation is that the Canadian government must ensure that the bill does not discriminate against immigrant and refugee women, and in particular that gender-specific risks associated with returning refugee women to their country of origin be thoroughly assessed prior to making such decisions.

I want to thank you very much for hearing our comments on the bill. I hope that some of our suggestions can be included in the changes.

The Chair: Thank you. You did very well for the first time. Come back again.

Ms. Heather McGregor: Thank you very much. And if you could excuse me before the questions, my colleague Darina will be here for the questions.

The Chair: We'll put her to the test.

Ms. Heather McGregor: Fine. I'm not sure she's been before committee, but I know you'll be very nice to her.

The Chair: Thank you, Heather, and thank you to the YMCAs and WCAs—yes, YWCAs. My eyesight's going. It's that light. The only way I'm going to get a tan in this country is by being in front of that light for a few more hours. Thank you very much.

Signor Carella.

Mr. A.L.P. Carella: Thank you, Mr. Chairman.

Just to clarify, I'm not representing the National Congress of Italian Canadians but the National Congress of Italian Canadians, Toronto District.

The Chair: Fine.

Mr. A.L.P. Carella: That represents the 500,000 to 600,000 Italians in the greater Toronto area. We've been in existence since 1974. And I should tell you that while the national congress, Toronto district, shares the concerns expressed to the government by the Canadian Coalition for a Just and Fair Immigration Policy, of which we are a member, respecting Bill C-11, my comments will be limited to those aspects of the proposed legislation that impact directly on a significant portion of the Italian-Canadian community: those who are permanent residents.

We have three recommendations. The first is that the right of re-entry should be guaranteed to permanent residents, with the right of appeal within Canada in the event of a question raised as to the individual's right of re-entry as a permanent resident. That's based on an objection that many Italian Canadians have been permanent residents of Canada for decades and as such have made and continue to make valuable contributions to this country. Their labour adds to its wealth; their taxes finance governments at all levels; and, most importantly, they raise their children to love the country they adopted as their own.

Currently they have a defined status when they are permanent residents that guarantees them the right to re-enter Canada after vacations abroad, visits to relatives in Italy or elsewhere, business travel, etc. If a problem arises at the time of re-entry, it can be dealt with by a process carried out in Canada that permits the fresh determination of their status.

• 1755

Bill C-11 redefines permanent residents as foreign nationals, as you've heard earlier. An immigration officer will be able to deny entry if he or she is not satisfied that the returning resident is a valid permanent resident. Perhaps the returning resident has lost or misplaced proof of his residency, or it has expired or been stolen. Should a permanent resident be denied re-entry in such cases and be forced to lodge an appeal from outside Canada? We think not.

Our second recommendation is that permanent residents should not be subject to automatic deportation without access to some sort of review process. This is in respect of those who, according to the bill, if convicted of a serious criminal offence and receiving a sentence of imprisonment for two years or more, are automatically deported without right of review. According to the proposed legislation, it's immaterial that the resident has lived in Canada since childhood, has a spouse and children or parents in Canada, whether the conviction is an isolated event, or if there is a likelihood of rehabilitation. In short, the bill is completely inflexible, taking no account of relevant circumstances that should be considered in light of the practical impact of such inflexibility.

A right of appeal does not preclude deportation, but Bill C-11 is arbitrary in this regard. As such, it violates the notion of justice as it is understood by the average Canadian. Therefore, we recommend that permanent residents should not be subject to automatic deportation without access to some sort of review process.

Our third recommendation is that the requirement for leave should be removed from all judicial reviews of determinations under the amended Immigration Act. Bill C-11 empowers immigration officers to compel any permanent resident at any time to answer questions and produce documents under penalty of five years in jail or a fine of $100,000. The number of examinations and the extent of questioning are not limited. Additionally, Bill C-11 requires that any appeal of a decision in the above regard can proceed only upon the grant of leave to appeal by the Federal Court of Canada, with no appeal allowed if leave to appeal is denied. This requirement is unreasonable and unnecessarily onerous, and it all but guarantees that the power of immigration officers will be absolute. This violates the notion of justice as it is understood by the average Canadian.

I thank you for your attention.

The Chair: Thank you, Mr. Carella.

We now go to the Ramgarhia Association of Ontario, Grumail Saggu and Harby Rakhra.

Mr. Grumail S. Saggu (President, Ramgarhia Association of Ontario): I'm the president of the Ramgarhia Association of Ontario. First of all, I would like to welcome your whole team here to hear the concerns about immigrants, and for hearing the people—both refugees and immigrants—and bringing some good life to them.

We are a social foundation with more than 500 members. We would like to thank the Government of Canada for allowing immigrants the opportunity to come to Canada, the number one country in the whole world. But, according to their present circumstances and their past ones, everything is revolving around refugees and all those things. We have some concerns, which Ms. Rakhra is going to elaborate on.

Ms. Harby Rakhra (Ramgarhia Association of Ontario): Good afternoon, everyone. I'm Harby Rakhra. I'll try to be brief.

We have about six issues here. One is broadening the definition of family class requirements. Although there is some improvement with this new bill, it still doesn't address the issue of brothers or sisters. I think that should be taken into consideration if we're truly trying to achieve family reunification.

The CBA has already raised this next issue, and that's laws and regulations. There are too many generalities in the law. The downloading of laws to regulations is extremely dangerous. We are totally opposed to that. For example, under subclause 44(2), how hearings are going to be held will be decided by regulations. There's a major potential for violation of human rights right there. It should go through the parliamentary process.

Subclause 64(2) was raised earlier as well, dealing with permanent residents who have been convicted of a crime. All appeal rights are taken away. We're totally opposed to this section as well. I think there should be some sort of review of the circumstances. The situation should be taken into consideration.

• 1800

Under clause 28, if you lose your permanent status, you're issued a permanent resident card. I think this was discussed earlier by CBA, too, so I think I should be joining their group, although I'm not a lawyer. Again, though, this is an inequality in terms of fair access to Canada.

Our values are so wonderful. I came here when I was 11 years old. I love this country and all its laws. It's the laws that have really allowed us the wonderful quality of life here. I just want that to be noted.

Again, certain countries require a visa and certain countries don't. That is totally unfair. I've always believed that. I'm also a former immigration officer—I was with the immigration department about ten years ago—so I do have some experience with this.

Subclause 27(2) states, “A permanent resident must comply with any conditions imposed under the regulations.” The power of making regulations is very broad and may result in arbitrary conditions being imposed on immigrants. This makes me very nervous. I think this is a very scary section. We would appreciate it if you would review this section. That's a priority for me personally, and for our organization.

Paragraph 61(a) deals with making regulations and then specifying grounds for release for detained immigrants. Under the current law, detainees are not released if they pose a danger to the public or if they are not going to show up for their hearings. I think that's wonderful. I don't know why it needs to change. Under the new regulations, it's whatever immigration officers want to do. That's dangerous. Those are not our Canadian values. That's my point there.

Also when refugees actually have been deemed to be refugees, they are told they need a passport. The countries that they come from will not issue them a passport, so they lose their right to apply for permanent status here. That totally does not make sense either.

Marriage cases, especially cases from India, were an issue when I was with this department. They're still an issue. Of arranged marriage cases, 48% are refused even today. There either needs to be more cultural sensitivity training within the department...I don't know what it is, but being an ex-immigration officer, I have to tell you that I had a lot of power in terms of making a decision about another human being's life.

I think everything has to come from the top down. There has to be some major leadership and discussion of the values and ethics of the department. I think that's what's necessary. You may want to look at HRDC's values and ethics. They released a document—I think they did so last year—and it's absolutely wonderful. I think that would be taking a very positive step.

The Chair: Thank you very much for that insight and those recommendations, Harby.

We'll go now to VIVE La Casa, Mr. Long and Deborah Greitzer. Welcome.

Mr. John R. Long (Executive Director, VIVE La Casa): Thank you very much for hearing us this afternoon. We are particularly in your debt because we're an organization in Buffalo, New York. This is a kind of courtesy that you don't have to extend to us, and we realize that and appreciate it.

I think we are relevant to your consideration, though, because we work almost entirely with refugees who are coming to Canada. We have been trusted by CIC, by the Canadian immigration authorities in Fort Erie and Niagara Falls, to fill out papers that they now ask everyone to bring. In other words, refugees are supposed to come to us first to get us to fill out their paperwork and send them on. So we have a good cooperative relationship with CIC, as well as with U.S. immigration.

We have a paper that I hope you have received. There are about four points in that, but we'll talk primarily about one, and that has to do with the issue of second-time claimants.

Let me say one other thing about our background. We were formed in 1984, originally by Catholic sisters, Catholic nuns. We are a faith-based organization, but we're not sectarian. We receive everyone and help everyone. We're a broadly based organization, but we do have that orientation and that commitment to the individual persons we try to help. We provide shelter and food, and we provide medical care, as well as help with the legal processes—particularly the Canadian ones, but also the U.S. ones.

• 1805

Now, let me say what I started to say a second ago. I had the opportunity about a year ago to hear Peter Showler, who is the president of the IRB. At that time, he said his organization, the IRB, is the largest tribunal in Canada in terms of the number of cases it hears, and every one of those cases is a capital case, because in every one of those cases, if a mistake is made, someone could be sent back to death. I don't remember anything else he said, but I remember that. It's a very impressive statement. This is the role we undertake: to try to see to it that everyone has a good chance—not maybe just one chance, but maybe two chances—or enough of a chance that we're very clear before anyone is sent back that this is the right decision.

We were here a while ago, and we heard someone say they believe 80% of the people who make a second refugee claim are successful with that claim. We don't have figures that are quite that high, but our own anecdotal evidence from people who correspond with us after having returned to Canada is that about half of the people who apply a second time are successful. Interestingly, I had a conversation with a senior immigration official in Niagara Falls. He told me he had done his own study of the cases he could track, and he came to the same conclusion: approximately half the people who apply a second time are successful.

I'm going to ask Deborah to speak to this, because she is a lawyer and can go through this more precisely. She also has some of the specific cases that she can talk about that we've dealt with.

Ms. Deborah Greitzer (Staff Lawyer, VIVE La Casa): I'll speak to why first claims may fail, and why people have to come a second time. One reason is problems with the IRB process, but I think that will be addressed a great deal by people such as François Crépeau in Montreal on Friday. Since we come from Buffalo, we won't talk about that.

Another thing we frequently see is poor representation. In Canada—which is different from the United States, by the way—the people who represent refugees are not required to be lawyers. They can be consultants or what are called notarios.

Just to give you an example of how that works, I had a client who was a young girl. She had left her country when she was 12 years old. She was fleeing with her mother, because she was not a member of the right clan. She lived for a few years in a refugee camp, until her mother got enough money together to send her to Canada, where she had some distant relatives. At that time, she did not speak any English. She arrived by herself and was represented by an attorney who made what's basically a boilerplate claim. He said Ann deserved asylum because she would face persecution, murder, torture, and genocide. This was here claim, her pitch, and she was denied by the IRB. When she came to the United States—she was returned to the United States, deported by Canada under the reciprocal agreement—she did win an asylum claim in the United States because I represented her. She would be the kind of person who would have gone back to Canada and made a second claim. She never really had a chance to tell her story.

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Another reason why people might lose their first claim is for cultural or personal reasons. I have a client who is also a young woman from that part of the world. She made a claim that was heard with her brother's, based on political things that happened to her family. She did not include in her statement the fact that she had been raped repeatedly when she was seven years old in the prison where she was detained. She did not include that information because she was afraid of the shame that would bring from the men in her family on their hearing that information. Her claim also was denied by Canada. She would not have that opportunity of bringing a second claim under this legislation.

I believe Ms. McGregor also mentioned that sometimes women do not know that they can make gender-based claims. We recently had a woman who returned to Canada to make a second claim. Her situation was quite similar. She may have had an excellent attorney who listened to the story she told about the fact that she was politically active. She did not mention that because of her political activity her husband beat her brutally and abused her consistently.

Some of the claims that are considered to be weak claims are sometimes very sympathetic ones. I'm mentioning this because people are frequently seen as abusing the system.

We have a man who recently re-entered Canada to make his third claim. He's currently being detained in Canada. I brought him across the border. He was taken off in handcuffs tied to his waist and leg irons by two employees of the Wackenhut Corporation. He has been detained now for over a month by CIC. This man was not persecuted; however, he did see.... He's from Sri Lanka. He's a Tamil. His farm was totally destroyed. He was apparently a fairly wealthy farmer. His son was abused, jailed, beaten. And it was to defend his son and try to protect his son that he finally came to Canada. He was never persecuted himself, however. That is why he lost his claim. Because he is a man of some culture and opportunity, he doesn't like to complain and talk about his problems. He didn't mention most of his story to his attorney. This is a man who has lost twice in Canada, and is currently being held in detention by the CIC.

Under the present law, we've heard this described as a revolving door. What actually happens with our organization is that people who have come through the United States are returned to the United States under the reciprocal agreement to be presumably deported by the United States. However, since they can return after 90 days into Canada, many of them choose to do so. As Reverend Long indicated, over 50% of those people are successful on their second time.

Bill C-11 would eliminate this possibility. The only chance for a review would be a slightly broader right to appeal. However, that would not give second claimants an opportunity of de novo review of their claims. In addition, there is this new invention called the PRRA, which only allows new information if it only could have been obtained after the initial review. Neither of those provisions would have protected any of the clients whose stories I told you earlier.

I'd just like to conclude by saying that the solution or how you deal with refugees depends a great deal on your attitude. We frequently hear discussion of floods of refugees, or I've heard people from the CIC mention 30,000 refugees and so on. If you're thinking of people as a flood, then you want to put up a dam. If you're dealing with individuals—a Mohamed or a Maria or somebody—then you have to find an individual solution to enable that person to tell their story.

• 1815

The Chair: Thank you very much. It was very insightful and very useful to the committee.

Now we will go to Mr. Mann, I believe. He's our last witness.

Mr. Harry Mann (South Asian Lawyers Association): Good afternoon, Mr. Chair and members of the committee.

My name is Harry Mann, and I've been a lawyer for about 19 years. Seven of those years I practised in India, until I requalified in Canada and got called to the bar over here. I have been dealing with the immigration laws of Canada for over 13 years. I have done several hundred refugee cases, appeals before the Immigration Appeal Board, and many cases before the Federal Court of Canada. I'm also the President of the South Asian Lawyers Association. I appear for myself and on behalf of the South Asian Lawyers Association today.

South Asians are the largest group of immigrants that Canada is receiving at this time. The new immigrants from South Asia are entrepeneurs, skilled workers, especially in technical and computer-related occupations, and the family class. It is an established fact that Canada needs immigrants to prosper and grow. The immigration laws of Canada govern the process of entry, stay, and removal of permanent and temporary residents of Canada.

The manner in which Canada treats its permanent residents is an important consideration for prospective immigrants to this country. The reality of unequal treatment of permanent residents and citizens of the country will be a major factor considered by educated applicants and current residents in deciding their future country of residence, especially when Canada is competing with other countries of the world for its share of immigrants.

In any event, in my opinion, unequal treatment of residents and citizens will not stand up to a charter challenge. Such limits on rights cannot be justified in a free and democratic society such as Canada. We have reviewed Bill C-11. We have also reviewed all the issue papers prepared by the Canadian Bar Association, and forwarded our review to the Honourable Minister of Citizenship and Immigration and to the honourable members of this standing committee.

I and the South Asian Lawyers Association fully support all the recommendations made in the nine papers already prepared and submitted by the Canadian Bar Association. We will send you our comments on the remaining five papers when they are completed and submitted.

In addition to the recommendations of the Canadian Bar Association with respect to judicial review of immigration decisions discussed in issue paper eight of the CBA, we further recommend that instead of requiring the leave of the Federal Court for appealing the overseas decisions of these officers in non-family class applications, there should be another subclause added to clause 63 of the bill, and it should read as follows:

Foreign nationals who have filed an application for permanent residence in Canada at a visa office outside Canada may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.

Now, although under the current legislation the Immigration Appeal Division does not hear appeals in non-family-class applications for permanent residence, we believe that the Immigration Appeal Division deals with complex issues pertaining to other types of matters that it entertains at this time, and has the required wherewithal to deal with this additional area of appeal.

There's already a good body of case law from the Federal Court of Canada to guide the Immigration Appeal Division in deciding the non-family-class appeals. This would in turn reduce the load on the Federal Court of Canada and the floodgates argument that has been put with respect to all the appeals going before the Federal Court.

This change will also demonstrate to non-family-class applicants throughout the world that we take seriously their interest in making Canada their future home. And if they're aggrieved by the decision of a visa officer, they're allowed another opportunity to prove that they meet the requirements of the Immigration Act and regulations.

Further, we believe that the requirements in subclause 40(1) for the finding of misrepresentation are very wide and could disqualify applicants who make innocent misrepresentations without any mala fide intention or expectation of gain. Such situations could be inconsistencies in dates of birth, schooling, etc., in the case of older family class relatives who could not benefit from such innocent misrepresentations, but make them because of lack of documentation or other innocent reasons.

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Under clause 65, permanent residents who arrive in Canada under the independent and business class are not entitled to humanitarian and compassionate considerations in their appeals to the Immigration Appeal Board. Not only is this discrimination based on the class under which permanent residents are landed in Canada, it also sends out a message that Canada considers independent and business class immigrants inferior to family class immigrants.

When an appeal is allowed by the Immigration Appeal Division under subclause 67(2), the Immigration Appeal Division should have powers to give other instructions to the visa offices, as it deems fit, with respect to processing the visa. This will allow the Immigration Appeal Division some control over post-appeal decision delays caused by the visa offices. In some cases visa offices cause years of delay in processing files where appeals have already been allowed. I've had cases where the applicants passed away during the course of this delay, causing extreme frustration and anger to the Canadian sponsors and their families.

Paragraphs 58(c) and 58(d) leave no discretion with the immigration division regarding release from detention when the minister or an officer of the minister opposes the release on very ambiguous and flimsy grounds.

Lastly, the bill provides no assurance that the improvement of service standards by the immigration department inland and overseas has been contemplated. The disproportionate allocation of resources to different overseas offices and lengthy delays in some of these offices are also not part of this bill.

We hope there will be very serious consideration given to these concerns that affect millions of Canadians. I and the South Asian Lawyers Association thank you for giving us the opportunity to make this presentation. We are always willing to participate in such forums to effect a positive change. Thank you.

The Chair: Thank you, Harry.

Thank you all for your submissions, and we'll go to questions.

Inky.

Mr. Inky Mark: Thank you, Mr. Chairman.

Thank you for being here.

It's amazing that we've been here almost nine hours, and we continue to hear comments that this bill is a threat to right to due process and judicial review. We've been hearing this for three days now. I know how important this bill is regarding immigration. As I've said in the past, the legislation sets the tone for their future, as it already has in the past. As I look back into our past, I always remind myself that hopefully we've learned some lessons in history and will not repeat them. Maybe I need a reality check.

I have a brief question of Mr. Carella. We have two members of Parliament of Italian descent here. What is the reaction in the Italian community? Are they angry about this business of referring to permanent residents as foreign nationals? What is their gut reaction to this legislation?

Mr. A.L.P. Carella: As I said in my presentation, I think the perception is that the legislation puts in place a system that is not viewed as fair. The task of judges and quasi-judicial panels is to provide fairness—to provide justice. That's not the task of an immigration officer; his or her task is to carry out regulations. By taking the review possibility out of the consideration, where's the justice? Where can justice be found, if you're not allowed to appeal without leave to appeal, and have no right to appeal, not receiving leave to appeal?

The Chair: Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: Yes.

[English]

The Chair: I thought I'd surprise you and....

[Translation]

Ms. Madeleine Dalphond-Guiral: My first question is to Darina. In Heather's presentation, reference was made to the Resident Families Assistance Program. What you are requesting is that it be improved namely by allowing people to request permanent resident status once they're registered in the program.

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Witnesses from other groups have asked that the program be out and out abolished.

I would therefore like to know why you would want it to be maintained, even enhanced.

[English]

Ms. Darina Vasek (YWCA of Greater Toronto): It's a good question, thank you.

I think the position we are working from is that the program is in existence, and we are working within the program. I think improving the program would require a number of complete overhauls. I don't know if I could be in a position to say whether it's better to scrap the program and start from ground zero or to work within the existing framework. But I think the important point is that there are a number of concerns with the program, and a number of women are suffering abuse at the hands of their employers because of their fear of jeopardizing their status and not obtaining permanent resident status. By having to live in someone's home.... And women viewing their employer as the person who holds the control of whether they're able to stay in Canada or not is the real issue at hand.

I realize I'm not fully answering your question as to whether it should be scrapped or not, but regardless of whether that issue is considered within the existing framework or we start from ground zero, that's the main issue of concern, that a number of women's lives are at stake.

The Chair: Thank you, Darina.

[Translation]

Ms. Madeleine Dalphond-Guiral: Mr. Chairman, my question is to Mr. Long.

During your presentation, you mentioned the rather large number of refugee applications which are rejected and yet which are accepted on appeal. You were saying that that was certainly due to mistakes being made by members of the IRB.

How can we reduce the number of these errors? There is no benefit in having to make a second application if we could have had the same result on the first application.

[English]

Mr. John Long: I think your statement is certainly true in principle, but given what Peter Schowler said, that this is the largest tribunal in Canada—and I'm sure he's right about that—you're just not going to get perfection. You're just not going to get 100% good decisions in every single case. That would be true given optimum good intentions, training, and expertise, and if everybody were feeling good that day. The reality of the situation is that there are other factors that play in. For example, one of the fights we engage in at VIVE continually is to try to steer people away from predatory consultants, advisers, people who are really trying to make money from the refugees and don't have their best interests at heart, to try to steer them toward legitimate and capable expert legal advice, and very often law clinics and people of reputation and quality. It's very hard to do.

I've lived abroad, I've travelled abroad. One of the things that happens when you go abroad is that you instantly bestow credibility on people who speak your language. If you're from Sri Lanka, you come through VIVE, we give you all our good advice, you say, yes, yes, and you believe it. Then you go to Toronto and somebody your brother-in-law introduces you to says, I know the perfect lawyer and he will take care of you, you come with me. The next day he takes you to the office, and what we don't know is that this man gets $100 from the lawyer to bring in that client. The lawyer is taking too many clients, even if he's not otherwise unethical. He's not doing the kind of preparation, not the kind of individual work he needs to do with that case, and the man fails through no fault of his own.

• 1830

There's a combination of things that happen. The other thing Deborah mentioned and someone else mentioned earlier is women. We find a lot of women who have had, particularly, rape and sexual abuse are simply not prepared to tell their husbands, sometimes not prepared to tell their brothers or their fathers, but particularly not prepared to tell their husbands. They are not going to tell the IRB judges when their husband is sitting in the back row. So that goes unsaid, and the judge is thinking, why is this woman making this claim and talking about things that went on in her village, historical things in her country, and things that happened to other people, and why isn't she talking about what happened to her? The case is rejected. Maybe the next time she knows she's got to talk to the husband first, or she's got to see to it that he doesn't come to the hearing—somehow she's got to get that out. Part of our ministry is to help people understand they need to do that.

Some of it is just the reality that people don't understand all this the first time through. The second time they may be able to do it.

The Chair: John.

Mr. John McCallum: Thank you.

I was convinced by your arguments in favour of the need for second refugee application, and also the earlier testimony we heard. But I have something here written by the department, I assume, defending the proposal. I'd just like to read you a few sentences and ask for anyone's reaction.

...the Bill also provides a mechanism to ensure that those who experience a genuine change in circumstances are able to make their case. Individuals who have been outside Canada for a period of at least six months will be eligible to apply for a pre-removal risk assessment...granted on the basis of new evidence related to changed circumstances....

Then it goes on to say:

Bill C-11 prescribes that the grounds to be considered at the PRRA will be the same as those considered by the IRB.

So I'm a little bit puzzled, putting this comment beside what I've heard said.

Mr. John Long: I want to get in one lick first. A lot of what I spoke about a minute ago in reference to Madeleine's question really isn't evidence that's new, it's evidence that didn't get introduced because there was some kind of an impediment to introducing it, either having to do with counsel and preparation or having to do emotional and psychological factors.

Mr. John McCallum: Doesn't that mean it's new, if it wasn't introduced before?

Mr. John Long: I suppose there could be court cases that would determine that, but it doesn't seem to me, on the face of the law, that it obviously would be considered. That could be argued both ways.

The Chair: Harry Mann wants to answer the same question, John.

Mr. John Long: And Deborah did too—I'm sorry, I didn't want to cut her off.

Ms. Deborah Greitzer: I just wanted to read from the section on the PRRA, which is paragraph 113(a) of Bill C-11:

an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after, or was not reasonably available at the time of, the rejection.

You said “genuine change of circumstance”, and it is true that would allow, say, somebody who went back to their country and was threatened with death because of their political opinion to return and present that information. But for the kind of people whose cases I described, that wouldn't be the case.

The Chair: Thank you.

Deborah, I have a clarification. I think you were right, but just so that I don't get confused, if you get rejected and you move towards a pre-risk assessment before you are returned, you don't have to be outside the country in order to access the PRRA, you do it from inside the country, namely Canada. At the end you said you'd have to leave, and so on. I think you got me confused.

Ms. Deborah Greitzer: Okay, there are both provisions.

The Chair: Okay.

Mr. Mann.

Mr. Harry Mann: Thank you.

With respect to the review of the risk factor before a person is returned, there is a system at this time, which is called the PBRCC system, where such risk is assessed. But if you find out from the department the success rate of that review, with respect to the figures you heard today, with respect to second claims and their success rate, it's nowhere comparable. The success rate of the PBRCC program is very low.

The Chair: Joe.

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Mr. Joseph Volpe: If this legislation goes through, would it shut down VIVE?

Mr. John Long: It definitely will throw us a curve and it will be very problematical for us. I doubt very much if it will shut down if we provide a number of different services. We undoubtedly will have to adjust to it.

Part of what we do is help people who are making first-time claims, so I don't think that would be changed. As a matter of fact, on the statistical sheet I gave you, the reason those numbers are so high is that for a lot of those people we see, it's simply to fill out forms and help them on their way.

Second, I think people will continue—as long as the reciprocal agreement is in place—to be sent back to the United States from Canada if they lose their refugee claim. Those people will continue to turn up at VIVE because we do have a reputation and we're known among the refugee community. So I think what will happen is that we then will begin to try to work with them on what they can do at that point.

Possibly the PRRA will be a viable option for some of them. Possibly they will need to be.... Deborah and I were talking in the car on the way up about whether we're going to have to suddenly develop a whole new operation for handling large numbers of asylum claims in the United States. I don't think we know, really, what the impact is going to be, but it is very likely to be very severe.

Mr. Joseph Volpe: Madam Harby Rakhra, I had occasion to visit some locations where an immigration officer has protected his or her right to make decisions against the interventions of the program manager, and has done that through the appeals process available to them in the bureaucracy and in law. Will this legislation enshrine the authority of the immigration officer against the interventions of the program manager?

Ms. Harby Rakhra: Absolutely. It increases the powers of discretion that immigration officers have.

Mr. Joseph Volpe: Thank you. That's pretty straightforward.

By the way, Mr. Long, I take it from your answer that, yes, you will be shut down, which is one of the intentions.

Mr. Carella, given that—

The Chair: I'm sorry, Joe, you just let that slip by me, and this look of shock came over the faces of John and Deborah.

Mr. Joseph Volpe: They're not going to be the revolving door that they're accused of being. So that part of their operation is shut down.

Mr. Carella, it is interesting, you're the one person who's spoken here in a historical context. Or let me rephrase that. The group you represent hasn't had immigration into Canada since 1970. That's thirty years. Everybody else has recent experience.

There's a coincidence between the shutting down of Italian immigration into Canada—it just stopped, almost immediately, in 1970—and the agitation for certain rights by the Italian immigrant population in Montreal. I'm wondering whether your advice to the Italian community today would be what some others had given, and what I gave to one of our interveners earlier on—that is, to get your citizenship today. Don't wait.

As a result of this legislation, if you didn't have citizenship would you dare go outside the country?

Mr. A.L.P. Carella: I'd certainly want to be made aware of the options.

Mr. Joseph Volpe: Don't be shy. Mr. Mark didn't ask me, as a member of the Italian community, what I did, but I'll tell you about one of the things I did after I saw what happened as a result of the good advice by well-spirited, well-meaning members of the department in 1970. I hustled my rear end over to CIC and got my citizenship. That's what I did.

Mr. A.L.P. Carella: I would say—

Mr. Joseph Volpe: I'm just wondering if that's the advice you'll give everybody.

The Chair: Let Mr. Carella answer.

Mr. A.L.P. Carella: I'll second the motion.

Voices: Oh, oh!

• 1840

Mr. A.L.P. Carella: Yes, you're quite right. I mean, if this issue hadn't been brought forward by the bill, I think we'd have to do a better job in our community of getting those people who have been here for many years to become citizens.

I think part of it is that dual citizenship is a relatively recent phenomena. Part of it is that if, say, a couple came here thirty or forty years ago, they came here because the man was looking for work, and the wife was reluctant to leave home. Now they have children here, and they have grandchildren. Very often it's the males who want to go back to Italy and the females who don't. They want to stay here, where their kids and their grandchildren are.

I think a lot of people did not get citizenship on the expectation that they'd be going back to Italy. That isn't happening. So regardless of the bill, we have to do a better job of getting people to become citizens. But the bill, you're quite right, means a more pressing effort is now needed on our part because of the consequences that are in store for them.

The Chair: Thank you, Mr. Carella.

Judy.

Ms. Judy Wasylycia-Leis: Perhaps I can win the favour of the chair by limiting my questioning.

I'd like to ask John and Deborah, and anyone else who might have some information on this, about clause 117 of the bill. Is it your opinion that Canadians helping refugees come into Canada at the border, or Canadian organizations who communicate with individuals and work with agencies in the United States to organize the arrival of refugee claimants at the border, are subject to the provisions outlined in clause 117 and subject to the penalties of up to ten years in prison and/or $500,000? If so, should we be looking at a clarification in terms of people who work at the border for non-profit humanitarian reasons?

The Chair: Do you want to answer it?

Mr. John Long: I had noticed that provision. I was a little bit concerned about it. There is some provision that I'm not exactly familiar with in the existing law. Everybody I know at CIC says they're not going to arrest the nuns. We were started by the nuns, and we still carry that kind of medal, I think, but that is a precarious position to be in.

My short answer would be yes, I think it would be very desirable to clarify that this is not the intention.

The Chair: Harby, have you any comment on that one in particular? I'm sorry if I've put you on the spot.

Ms. Harby Rakhra: I think it should be deleted, or modified, rather. There should be modifications, yes. I would definitely agree with John.

The Chair: That's a fair comment.

Mr. Mann.

Mr. Harry Mann: I think clarification would be appropriate. Subclause 117(4) clearly says:

No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.

However, many times these powers are delegated to junior officials. If an immigration officer of the first order decides to do that, and his supervisor agrees, it happens. Therefore, I think there should be a safeguard placed in this that it would be the Attorney General himself, and only himself, who would do this.

The Chair: Okay.

Anita, no questions?

On that basis, let me take this opportunity to thank you all for your great input and the hard work you do on behalf of immigrants and refugees in this country. Some of the stuff you've given us is most insightful.

We wanted John and Deborah here, of course, because we wanted to go to one of our border cities to essentially find that interaction, and to get a sense of what was happening there. I think they have provided us with some good insight.

Let me also thank the committee members for a lot of hard work today. Thank you to the staff and the interpreters and the hotel people and everyone else for their hard work these past eight hours. We'll see you tomorrow morning.

The meeting is adjourned.