:
Indeed. I gather that you and Mr. Lamoureux chaired the meeting in my absence. I thank you for that.
We will get to business. We have a large group of people.
We have, from the department, Mr. Les Linklater, assistant deputy minister of strategic and program policy.
Good morning to you, sir. I understand you're going to be speaking for up to five minutes.
We have Jennifer Irish, the director of asylum policy and programs.
I understand the two of you were present at the last meeting, when the minister was here.
We have Marie Bourry, the executive director and senior general counsel of legal services.
Good morning to you.
We have Mr. Michael MacDonald, the director general of national security operations directorate. He's with Public Safety Canada.
You were here last Thursday as well, I understand. Welcome.
From Canada Border Services Agency, we have Mr. Peter Hill, the director general of post-border programs.
You too will be speaking for up to five minutes, sir.
Finally we have Mr. Joe Oliver, the director general of border integrity from the Royal Canadian Mounted Police.
Good morning to you.
Mr. Linklater, we'll start with you. Thank you.
:
Good morning, Mr. Chair, and members of the committee.
Thank you for the invitation to appear before you today. We are pleased to be here today to discuss the Protecting Canada's Immigration System Act—legislation that would strengthen and improve this country's immigration system.
In particular, I've been invited to address the asylum system reforms and the human smuggling measures in Bill . I and my other colleagues in the next panel will be happy to address any questions you may have with respect to the biometrics measures in Bill C-31.
[English]
To begin, Mr. Chair, allow me to note that Bill further builds on the long-needed reforms to the asylum system that were passed in Parliament in June 2010 as part of the Balanced Refugee Reform Act. The proposed new measures would further accelerate the processing of refugee claims for nationals from designated countries that generally don't produce refugees. They would also reduce the options available to failed claimants to delay their removal from Canada.
It may surprise some committee members to know that Canada receives more asylum claims from countries in Europe than from either Africa or Asia. Last year alone, almost one quarter of all refugee claims made in Canada were made by European Union nationals.
I think we could all agree, Mr. Chair, that EU countries have strong human rights and democratic systems similar to our own, yet they produced almost 25% of all refugee claims to this country in 2011. That's up from 14% the previous year.
In recent years, virtually all EU claims were withdrawn, abandoned, or rejected. The refugee reform measures in Bill would help prevent abuse of the system and would ensure that all of our refugee determination processes are as streamlined as possible. This would be accomplished without affecting the fairness of the system and without compromising any of Canada's international and domestic obligations with respect to refugees.
Cracking down on human smugglers is an important element of protecting the integrity of our immigration system, Mr. Chair. That's why Bill would also help the government take action on the dangerous yet lucrative business of human smuggling.
Bill would establish mandatory detention for up to a year for individuals who come to Canada as part of an irregular arrival, in order to determine their identity and admissibility, including whether they have been involved in any illegal activity.
Mandatory detention would exclude those designated foreign nationals who are under the age of 16. Also, once an individual's refugee claim has been approved, that individual would be released from detention.
Bill would reduce the attraction of coming to Canada by way of illegal human smuggling by limiting the ability of those who do so to take advantage of our generous immigration system and social services.
In closing, Mr. Chair, let me say that the proposed measures in Bill strike the right balance between ensuring the safety and security of Canada and Canadians, and making sure that those who are in need of Canada's protection continue to have access to it.
[Translation]
Thank you, Mr. Chair.
I'll now turn to Peter Hill, my colleague who is director general at the agency.
And thank you to the committee for the opportunity to be here today. When I last appeared at this committee, the CBSA's mandate as a border enforcement agency was outlined in addition to its role in administering Canada's immigration laws. Building from that appearance, I would like to focus my remarks today on how Bill would impact the CBSA, should Parliament pass it into law.
[English]
First, I would like to speak to the impacts on refugee reform.
The implementation of Bill would not change the CBSA's operational responsibilities in processing refugee claims upon arrival at our ports of entry. What would change for the CBSA, however, is that the agency would be expected to remove individuals within one year, where possible, following the last negative decision on their claim for asylum in Canada.
To enable us to address potential increased removal demands, the CBSA has put in place a removals strategy that includes expanding the assisted voluntary returns and reintegration pilot program. This program encourages voluntary returns as a cost-effective and timely option that complements traditional enforced removals by providing increased counselling, education, and incentives to leave.
This program has proven to be successful in other countries. As better integration assistance is provided for participants, it ensures that they would be less likely to attempt to return to Canada.
I would now like to focus on the human smuggling component of this legislation.
When people arrive in Canada as part of a suspected human smuggling operation, it is the responsibility of the CBSA to determine whether or not these individuals are a threat to Canada. Under the current system, the existing detention review periods of within 48 hours, seven days, and 30 days are not designed to deal with cases involving large volumes and complex human smuggling operations.
The task of distinguishing genuine refugees from those who may pose a public safety threat are complex and time-consuming. By allowing Canadian authorities the additional time necessary to investigate, individuals can be assessed more effectively and their cases dealt with more efficiently.
As such, the mandatory detention provisions are necessary in order for Canadian authorities to investigate persons whose identities have not been determined or who may be inadmissible for reasons of criminality or security. After one year, those found not to be refugees would have the grounds for their detention reviewed by the Immigration Refugee Board after a period of 12 months has passed since their initial detention, and then again at the end of six months. In addition, individuals could be released on application to the if, in the minister's option, exceptional circumstances warrant an early release.
Specifically regarding the detention of minors, I would like to add that in all cases this is considered a measure of last resort. The CBSA's position has been and will continue to be, under Bill , to always consider the best interests of the child.
[Translation]
Mr. Chair, I'd like to thank the committee for the opportunity to speak to you today. The CBSA is committed to ensuring Canada's immigration laws are respected, and we will continue to take appropriate enforcement action to ensure the safety and security of the Canadian public.
Thank you.
:
Operationally speaking, when a vessel arrives with several hundred individuals aboard, the first concern is health and safety. To ensure that the passengers are not suffering from some kind of communicable disease, the health issue is addressed. That's the first step.
The second step is to determine identity, which can be challenging. Individuals often arrive either undocumented or they have discarded their document overboard during the voyage. They may have attempted to destroy their documents. So it is quite a laborious and time-consuming process to confirm identity. If there is evidence, it then needs to be matched with individuals. Documentation needs to be assessed on whether it is fraudulent or was fraudulently obtained.
The agency will not attempt to communicate or exchange information with the country of origin because there are concerns about ensuring that the identity of asylum claimants is not revealed. Therefore, the agency relies on cooperation with like-minded countries and other partners, to determine whether they have information that would help confirm the identity of individuals.
The third step is then a question of admissibility, on a case-by-case basis. Once identity has been established, further checks with respect to security and database checks in partnership with Canadian agencies and international partners, confirm whether or not an individual has been associated with organized crime or crimes against humanity, or if there is any association with organizations involved in terrorism.
This process is time-consuming. It may extend over a number of countries in view of concerns about human smuggling. Generally, this is the process followed when we have a mass arrival.
I would say that it presents tremendous pressure on the CBSA to maintain the detention review schedule, which happens at 48 hours, 7 days, and 30 days. Currently, the agency is moving flat out to bring the required information to the IRB at the detention reviews, to confirm that there are concerns with respect to identity and admissibility, and to maintain detention.
That process does not serve the agency well. It was never designed for mass arrivals. One of the key proposals in this legislation is to deal with that, so that CBSA and RCMP, for example, have the time to conduct the necessary checks.
:
I think as the minister said when he appeared on Thursday, the intention is certainly not to leave this prospect of individuals losing permanent resident status if their country conditions change over time.
The minister also said he was open to constructive input around potential amendments to clarify that provision, because certainly, it's not the intent that individuals would be punished due to circumstances that are beyond their control.
What Clause 19 is really about is ensuring that those individuals who, after receiving protected person status and/or permanent resident status in Canada, then return of their own volition to their country of alleged persecution are responsible, themselves, for essentially spurning the protection status that Canada has provided them.
That's the intention of clause 19. It's certainly not to be a punishment for individuals who, after having been in Canada for a number of years, see the conditions in their country of origin change to a point where they can travel back freely, as Canadian permanent residents or citizens.
Certainly there is an openness to look at clarifying that clause.
:
Thank you very much. We will reconvene the meeting. The next portion of the meeting is on biometrics, I believe.
Mr. Linklater, welcome back. You're a man for all seasons. You're the assistant deputy minister of strategic and program policy.
Mr. Desruisseaux, you are the director general of the admissibility branch.
Marie Estabrooks, you are the manager of biometrics policy (programs and projects), emerging border programs with the Canada Border Services Agency. Good morning to you.
Finally, we have Chuck Walker of the Royal Canadian Mounted Police. He is the director general of the Canadian criminal real time identification services.
Thank you all for coming.
Mr. Linklater has up to 10 minutes.
Good morning again, Mr. Chair and members of the committee.
We are pleased to appear before you today to talk about Bill amendments related to the use of biometrics in Canada's immigration program.
[Translation]
I will first focus on the broad benefits of the use of biometrics followed by comments on the planned implementation of biometrics in CIC's temporary resident program.
[English]
Identity verification is central to the decisions taken by officials responsible for administering and enforcing the Immigration and Refugee Protection Act, IRPA, since accurately identifying a person is the fundamental element in effectively determining that person's admissibility. The challenge for Canadian immigration and border officials is to efficiently separate the thousands of mala fide cases from the millions of legitimate ones that we see each year. When doubts arise, time and resources are required to authenticate identity. When doubts are repeated at subsequent encounters of a traveller with immigration and border officials, additional time and resources may be required to re-authenticate identity.
Biometrics is a 21st-century identity management tool that can identify people based on an intrinsic physiological characteristic such as fingerprints. Unlike identity documents, biometric information is unique to each individual and cannot be easily forged.
Biometrics therefore helps supplement existing biographic information-based screening tools by significantly reducing the chance that one individual can pose as or be mistaken for another individual. Once biometric information such as fingerprints has been enrolled, the identity of that individual has been effectively fixed for as long as that information is retained.
[Translation]
Using biometrics will strengthen the integrity of Canada's immigration program by helping prevent known criminals, failed refugee claimants, and previous deportees from using a false identity to obtain a Canadian visa.
[English]
Biometrics will also help facilitate legitimate travel to Canada by providing a fast and reliable tool to help confirm identity. Furthermore, the use of biometrics will put Canada in line with most other western countries that are now using or preparing to use biometrics in their immigration and border management processes. These include the United Kingdom, Australia, the United States, New Zealand, and many countries in the European Union.
[Translation]
CIC is working in partnership with the agency and the RCMP to begin using biometrics in the temporary resident program. Starting in 2013, foreign nationals from certain visa-required countries and territories applying for a temporary resident visa, work or study permit will be required to provide biometric data to obtain a visa.
[English]
What we will do is take a fingerprint as well as a photo of all individuals applying from certain visa-required countries. The fingerprints that are collected will be sent to the RCMP for storage and will be checked against the fingerprint records of refugee claimants, previous deportees, criminals, and previous temporary resident applicants. The results of these checks will inform the visa decision-making process. At a port of entry, a border services officer will use the photo taken abroad to verify that the visa-holder is the same person to whom the visa is issued. Fingerprints will be verified at secondary inspection lines at the discretion of the border services officer. The use of biometrics means that these border officers will be able to make more confident decisions based on more accurate information.
Mr. Chair, I should note that CIC recognizes the importance of having the appropriate privacy safeguards in place to protect the biometric information collected under this initiative. We therefore continue to consult with the Office of the Privacy Commissioner to ensure that adequate privacy protection safeguards are in place for all aspects of the initiative.
Finally, with regard to the specific clauses found in Bill , these would provide the necessary authorities for the collection and use of biometric information by allowing the government to:
(a) set in regulations which foreign nationals must provide biometrics, what information must be provided, and the procedures they must follow when making a temporary resident visa, work permit, or study permit application;
(b) set exemptions to those requirements in regulations, for example, for children, for the elderly, or diplomats;
(c) set regulations to facilitate the use of biometric information for Canadian law enforcement, and;
(d) exempt from the application of the User Fees Act the establishment of a biometrics fee.
The bill would also enhance the authority for CIC to provide services to the CBSA and to partner with other governments in providing services to applicants.
In closing, the collection and use of biometric information as supported by this legislation will strengthen the integrity of Canada's immigration program and facilitate legitimate travel, while at the same time protecting the privacy of applicants.
[Translation]
Thank you for your time. We will be pleased to answer any questions you may have.
Welcome to the new witnesses today. I think Mr. Linklater has his name permanently engraved on the chair he's in right now. He's been with us so often.
Thank you for appearing today and thank you for this discussion on biometrics, because it is hugely important. I know I went through a similar process recently when I got my NEXUS card, where they had to take an iris scan and my fingerprints. I didn't find it to be a particular problem, and it certainly facilitates my travel back and forth very quickly, which to me has been a tremendous convenience.
Mr. Linklater, you just mentioned in your opening comments that there's a secondary process as people come through the immigration line, so to speak, and that there is an opportunity for an officer to then check the biometrics.
Are they checked immediately each time or are they at the discretion of an officer?
As we consider the concerns about letting private information get into the hands of countries that might not respect the values of the government, I'm thinking those are countries where we wouldn't have the opportunity to be interviewing people like you in the positions of authority that you are in, and we appreciate you being here this morning. Thank you.
My colleague, Mr. Opitz, mentioned the impact of the NEXUS program. Just yesterday I was in contact with another analogous program, which to quote you, Mr. Linklater, ensures that the person who arrives is the person who applied. In this program a photo must be gotten and a card must be provided and the card must be presented at the beginning of the event. The event is under 14 soccer in Ontario, and at a certain level, the children have to go and get themselves carded and present the card.
My point is that it's fair to say that although we do have concerns about privacy, we all have concerns about privacy, the impact of biometrics is going well beyond immigration such as we're considering today.
I would like to get back to this question about information getting into the hands of sovereign governments over which we have no control, and I wonder if you could give us some examples of specific protections in addition to what you've already said such that we don't imagine....
For instance, the information here goes to the Government of Iran. The people who I serve in the riding I represent, West Vancouver—Sunshine Coast—Sea to Sky Country, would be very concerned about that and I'm sure there are other people who would have similar concerns.
Before I forget, there's material that the analysts have prepared for today. You should ensure that you bring that back this afternoon because we will not be distributing it again today.
We'll commence with the final session this morning. We have two professors. From the University of Toronto, the David Asper Centre for Constitutional Rights, we have Professor Audrey Macklin, representative from this centre. And, we have Professor Sean Rehaag. Professor Rehaag is an assistant professor at Osgoode Hall Law School, York University.
Good morning, to both of you.
I understand, sir, you're going to have a PowerPoint presentation for the second half.
My name is Sean Rehaag. I am a professor at the Osgoode Hall Law School. I am here with Professor Audrey Macklin from the University of Toronto's faculty of law. Both of us work primarily in the area of immigration and refugee law.
Professor Macklin and I share many of the concerns regarding Bill raised in the briefs submitted by the Canadian Association of Refugee Lawyers, the Canadian Bar Association, and the Canadian Council for Refugees.
Rather than attempting to summarize those concerns here, though, what we'd like to do is focus on two specific issues. I'm going to speak about the refugee appeal division and Professor Macklin is going to speak about why the bill should not provide new powers to the minister to remove permanent residence from refugees.
Let me jump right into the three quick points that I'd like to make regarding the refugee appeal division.
My first point is to remind the committee that refugee determinations are among the most serious decisions that are made in Canada. If individuals who meet the refugee definition are not recognized as such, they may be deported to countries where they face persecution, torture, or even death. Because of these life and death stakes, the Supreme Court has found that refugee determinations implicate constitutional rights to life, liberty, and security of the person.
The second point I'd like to make is that all administrative decision-making processes are prone to error, and refugee determinations are no exception. If anything, refugee determinations are more likely to result in errors due to the inherent challenges of this type of decision-making. These challenges include having to make factual findings about what may happen in the future in distant countries, and having to make credibility determinations based on the testimony of claimants who may be suffering from post-traumatic stress, who often come from very different cultural backgrounds, and whose testimony is typically filtered through an interpreter.
In addition to these challenges, there's extensive evidence showing that IRB refugee decisions are all too often arbitrary. For the past six years I've published statistics on the Canadian Council for Refugees' website setting out annual grant rates for IRB refugee claim grant rates. Each year dramatic variations are evident in these grant rates, with some members granting refugee status in almost every case they hear and others granting refugee status seldom, if at all.
Even when factors such as country of origin are taken into account, massive, unexplained variations in refugee claim grant rates persist, suggesting that outcomes turn at least in part on the luck of the draw, on who decides the application. In this context, errors in IRB refugee decisions are not only inevitable, they are likely common.
So my second point is that given both the likelihood of errors and the life and death stakes involved, it's essential that claimants have access to an appeal that can reliably catch errors.
My third point is that aside from appeals on the merits to the refugee appeal division, there is no reliable way of catching errors in refugee determinations. It is of course possible to apply for judicial review in Federal Court. However, judicial review is highly constrained. Refugee claimants must ask for leave or permission from the court before getting access to a hearing. In the vast majority of cases, about 85%, leave is denied. Even where leave is granted and a hearing is held, there are constraints on the process. Most importantly, the Federal Court rarely reconsiders factual findings or credibility determinations made by the IRB. Most cases actually turn on these factors.
In addition to these procedural constraints, there is evidence that the Federal Court's decision-making in this area is inconsistent. Earlier this year I released a study that examined over 23,000 applications for judicial review of refugee decisions from 2005 to 2010. During this period some Federal Court judges granted leave in 1% of cases and others in more than 70% of cases. So really it's the luck of the draw; outcomes turn on who decides the case.
Taken together, the procedural limits on judicial review and the evidence of inconsistent decision-making at the Federal Court suggest that judicial review cannot reliably catch errors in IRB decisions.
In my view then, because of the life-and-death stakes involved, because errors are inevitable, and because judicial review cannot catch these errors reliably, it is essential that all refugee claimants have access to an appeal on the merits. Bill removes appeal rights for some claimants, and my recommendation is that these appeal rights be restored.
:
Like Professor Rehaag, I want to thank you for the opportunity to appear in front of you today.
I am going to address the impact of provisions in Bill that seek to expand the circumstances in which permanent resident status of refugees can be revoked.
I have three questions that I seek to answer here. First, does Bill confer new powers on the minister? Yes. Are these additional powers necessary to achieve legitimate policy objectives? No. Can Bill C-31 be amended to align its provisions with those legitimate policy objectives? Yes.
First, it is important to understand what the status quo says. As IRPA currently exists, it is possible for the minister to seek what is called vacation of refugee protection under section 109. Vacation of refugee status is the process by which the minister seeks to revoke refugee status of somebody who never needed refugee protection in the first place. That is somebody who acquired the refugee status through misrepresentation or fraud.
If the minister is successful in obtaining vacation before the Immigration and Refugee Board, then that person's refugee status is lost as well as permanent resident status. There is a certain harmony to that, because of course, misrepresentation is also a basis for revoking permanent resident status. For refugee status lost for misrepresentation, the consequence is loss of permanent resident status for misrepresentation.
Under the current law there is also a different provision called cessation. The minister may seek cessation of a refugee status where the person no longer needs refugee protection, and the evidence from which one might infer that refugee protection is no longer required might consist of a variety of possibilities, including for example, re-availment of protection in the original country, or a change in circumstances in the country of origin such that there is no basis for currently fearing persecution in that country of origin. That's vacation, where refugee status was never needed, and cessation, where refugee status is no longer required.
Under the current law, when a claim is cessated, it does not follow that permanent resident status is also revoked. Why? That is because the person concerned has not necessarily done anything that is inconsistent with maintaining permanent resident status. There is no misconduct, as it were.
What does Bill do? It visits the same consequence of automatic loss of permanent resident status on one whose refugee claim is cessated that is currently visited on one whose refugee claim is vacated. In order to understand the difference, I want to give you two scenarios of circumstances where permanent resident status would now be lost under Bill C-31, where it would not be lost under IRPA as it currently exists.
For example, in one scenario a refugee comes from Bosnia in 1993. She obtains permanent resident status. In 2008 she returns for a year to work for an international organization in Sarajevo. She lives peacefully in Bosnia for a year, returns to Canada. Under Bill the minister could seek to have her refugee claim cessated, and if successful, the automatic consequence of that would be loss of permanent resident status.
Another example, a refugee claimant from Rwanda comes in 1994 and obtains permanent resident status. He sponsors his wife. They raise a family in Canada. At some point, let's say in 2012, the minister decides that it's now safe for Tutsis in Rwanda and so he seeks to cessate this person's refugee claim. If successful, on the basis of a change of circumstances in Rwanda, then this person's refugee claim would be lost as well as permanent resident status, and almost 20 years after the fact, that person would be automatically removable, deportable, to Rwanda.
The consequences of this amendment under Bill is deportation of people who are long-term permanent residents in Canada with no recourse, and no appeal to the immigration appeal division, for people who have done nothing wrong, and indeed, in the case of a change of circumstances in the country of origin, they have done nothing at all. They have merely been living their lives in Canada.
There are no limits to the power of the minister's discretion to exercise this new power. That puts all permanent resident refugees at risk. They will never know if, when, or why the minister might seek cessation of their refugee status.
:
I am critical of the legislation, and I just want to make a couple of opening statements on my position on this legislation.
First of all, immigration is about the management of people. The rules apply to individuals, and if the rules are absolute and strict, people fall through the cracks or don't have their cases looked at in a way they should be looked at because they don't fit within the criteria properly.
Secondly, we have the Charter of Rights and Freedoms. You as parliamentarians are responsible for ensuring that the legislation complies with the charter. One of the things that has always bothered me—and I've been practising for 35 years in this area—is that legislation parliamentarians have passed gets twisted in the practice. People you never intended to exclude from protection are excluded because you didn't understand the consequences of the legislation you were passing. I don't believe that people here would have passed some of the legislation that's been passed that has harmed people if they had known that was going to happen.
Thirdly, every time you put an absolute bar in legislation you make it open to challenge, because absolutes often don't comply with the charter. For example, persons who are excluded from the system may have good reasons to have their refugee claims determined. For a person who has lost their pre-removal risk assessment there's a 12-month bar on making another application. It may be that conditions in the country changed before they were moved, but by making an absolute and prohibiting them from being able to make a second PRRA if the conditions warrant it, you force them into court on a constitutional challenge. That's the problem with absolutes.
I know there is concern that lawyers will have a self-interest in coming before you because we make our living from representing refugees. Believe me, we will make a lot more if you don't change this legislation than we will ever make if you make it a fair process. So that is a lame excuse for ignoring the kinds of things we say.
I have spent my entire practice challenging legislation that is unfair. We have been fairly successful from Singh in 1985 to Charkaoui in 2007. I can tell you that Charkaoui is based on absolute detention without a review.
When I read the first bill I couldn't believe it. We spent years challenging arbitrary detention without having a timely review of the need for detention. We finally won in the Supreme Court in 2007, and then you turn around and put in legislation that arbitrarily detains people for a year without a review. That's not appropriate. The Supreme Court just said you couldn't do that, so why is it being done now? I don't understand it. It's opening the legislation to challenge. Maybe the government thinks it will stay in place until the court strikes it out, and will achieve their purpose. That's not the way to pass legislation to govern immigration to Canada.
Fourth, the present system works. If you have ever sat in a detention review before an immigration division member, the government wins most of the time. If the government wants a person detained they are likely going to be detained until you can work out an agreement with the Canada Border Services Agency to have them released. Neither the immigration division, the refugee protection division, nor the federal court are particularly sensitive or sympathetic to the rights of non-citizens. The government has the highest success rate, not the person.
The system works fine the way it is now. You don't need to arbitrarily detain people when you have a member of the immigration division who's going to do it anyway. If there's a need for the person to be released, that member will release them. That's as it should be, because some of the people who are detained are victims of horrific events in the past. I think it's wrong to arbitrarily detain a person for a year who is suffering from post-traumatic stress and has experienced severe torture. We've seen people like that. I have one client who doesn't have a jaw and was detained for six months. He doesn't have a jaw because he was bombed in a war. That person shouldn't be in detention for an extended period of time, because it just exacerbates the problem.
The last sort of general point is that in the end we want whomever we accept as refugees to integrate and be functioning members of society. You cannot do that if you first punish them by detention for a year, if you bar them from being able to bring their families. How best do people settle and integrate? They settle and integrate with family members with them. That's not in this legislation. Instead, even though we have an obligation in international law and under our charter to allow these people to remain in Canada, we cut out the possibility of them being able to settle successfully.
I have clients who are on disability because their cases have not been settled for an extended period of time. Over time I see the decompensation that they go through. I see the destruction of their lives and the integrity of the person, the breakdown. It's not fair, it's not human, and it's not in keeping with our humanitarian tradition towards refugees. If we're going to keep them, treat them fairly. We have an obligation to keep them if they are refugees.
There are a couple of specific points that I know are not going to be covered by other people. One is the travel documents. This legislation prevents people from getting travel documents until they are permanent residents. You don't realize that travel documents have been an escape for our clients. I have clients who are in limbo. Canada has decided it will not deport the person, but it will also not land them. So some of them have been here 10 years, 20 years, 30 years, or longer. During that time, if you take away the right to the travel document, which is a right under the convention for refugees, for people who are recognized as refugees, they can't even travel out to visit family.
In one of my client's cases, she has a relative who's a doctor. She can get medical care from him in another country. She can't get it in Canada because she's not landed. It's an important escape valve for people. It's important to let them be able to make necessary trips on travel documents, even if they're not landed, particularly as this government will just allow people to live in limbo. It's not just this government; it's the government before. These cases go back 10 to 20 years. We're not deporting them, so at least let them travel.
Again, I'm picking up on different points that I know are not likely going to be covered from reading the briefs that have been put before you. One is the inability to reopen for a breach in actual justice. The legislation amends section 171 to prevent reopening of refugee claims if the person has already lost on the refugee appeal or in the Federal Court.
I'm not sure you can do that. You can certainly cut out an appeal, but you can't cut out an appeal on arbitrary grounds. It has to be on grounds that make sense. The grounds for restricting the appeal in this case are not logically related to the concerns of the legislation, in some instances. Certainly, on a failure to permit reopening where there's been a breach in actual justice, I don't think you can do that. The charter doesn't let you do that. If there's a breach in actual justice, the proceeding is annulled. The decision can't be acted upon. There has always been a right to go back and say, “Look, for some reason, you missed the fact that this person is mentally challenged, and you should have looked at it. The case should be reopened and considered again”.
The last point I want to make is on the bars and any way out of the five-year bar. If you're a designated foreign national, you're barred from landing for five years. If there's any kind of breach of your conditions of release, it's another 12 months after that, so it can be a long period of time. Then it takes two or three years to get landed, so we're looking at 10 years for some people to be able to settle with their families in Canada. That's wrong. That's far too extended.
There isn't any way around that. I don't know if you realize this legislation cuts out temporary resident permits, and humanitarian and compassionate. Humanitarian and compassionate discretion, a discretion to allow people to get out of the restrictions of the act, has been there since we've had legislation, with no restriction. Since 1910 we've had legislation, and there has always been a discretion.
This legislation started the last time to restrict the humanitarian and compassionate discretion, but not restricting who had access to it. This restricts who has access to it. That is unheard of in our history. If you take away that kind of discretion, you force us into court. And you're going to end up with a constitutional challenge, in which, I bet, at the end of the day, the court's going to say, you have to let someone make an application, you have to have this considered because there are too many human rights engaged by the process for you to be able to just cut it out. So you're just asking for a challenge. Why do that? Why not make it right to begin with?
Thank you.
:
One of the grounds for cessation is what is called a change of circumstance. It says that a person's claim can be cessated if the reasons for which the person sought refugee protection have ceased to exist. This can be raised at any point. It can even be raised at the refugee hearing if conditions have changed between the time a claim has been made and the time of the refugee hearing.
You can imagine that a change of circumstance happens halfway around the world. Somebody, like this person from Rwanda I'm describing, is here in Canada and is doing nothing wrong. He is leading a life, working, raising a family, contributing to Canadian society. Halfway around the world, the situation in Rwanda changes. What, then, does this legislation suggest? It indicates that the minister can seek cessation of refugee status because of a change in Rwanda and this person is automatically deportable from Canada. That is automatic, with no appeal to the immigration appeal division.
What this does, of course, is uproot that person's life. It is as if these years they have spent in Canada building a life, contributing to Canadian society, don't matter, don't exist, are erased. That's the significance of this provision.
We talk about the people who come with the scars on their backs. How about the people who come with the scars in their minds and in their emotions, such as a five-year-old child who was traumatized and still has memories of war—but that's just my story.
Under Bill a designated foreign national found to be a refugee, unlike other refugees, will be subject to restrictions such as that five-year wait to apply for permanent residency. They won't be able to sponsor their families to join them, and of course, they will be subject to reporting requirements.
Are these measures justified in light of the claimant's mode of arrival? It's generally the mode of arrival that ends up having them designated. What is the impact going to be on these people resettling here in Canada if they can't get their permanent residency claim and they can't have their family come here with them?
The questions are for any of you, all of you.
Don't worry, Ms. Jackman. I think you're going to get a chance to provide that response.
I just want to remind us of the different types of procedural fairness that we've been alluding to or talking about. There's the charter. There's the Federal Court. There is an appeal built in. There are obligations to other countries or obligations through the United Nations. There's the democratic will of the Canadian people. There's also the role of Her Majesty's loyal opposition, which we're seeing played out here. In all of those things, we're striving for some fairness.
I would just like to quickly review what is sought in the amendments. These are things that we were told earlier this morning by Les Linklater, the ADM for strategic and program policy, and by Peter Hill, who is with post-border programs. They talked about these goals: reducing refugee claims from countries that generally don't typically send valid refugees; maintaining our obligations to other countries; cracking down on human smuggling; detaining people that arrive irregularly; removing individuals within a year when we get a negative determination; mandatory detention to investigate safety and security in ID aspects, which I want to come back to; and maintaining the best interests of the child.
So on the mandatory detention part, the analogy for me is that we're all sad if someone gets foreclosed upon in a mortgage situation. But we have to remember that if the mortgagee didn't have the opportunity to do that at the bank, the banks would never lend money to all of the legitimate borrowers, who would then not have houses and shelter. So we need to have provisions like this in order to make sure that the legitimate people can come through the system.
Would you like to comment on that?
Maybe you would, Ms. Jackman, since you got cut off.
There are more than just a few bogus refugees that come out of this system. We have 25% coming from the EU. Not everybody who comes over here and claims refugee status is a victim, quite frankly. A lot of them are looking forward to taking advantage of our system. Some actually tell the CBSA officers that they're here because of the money—bold, direct, and out front.
Not only do we have a right to protect the safety of this country and the credibility of our immigration system, but we also have a responsibility to Canadian taxpayers to take a hard look at what a lot of this costs them as well, and when you have a lot of bogus refugee claims, then there are a lot of costs. I think you would have to concede that—that there are quite a number.
So there is a balance between what we need to have as the rights of the refugee.... I think we're all in agreement that this is a very generous country. My parents came here after the Second World War. They couldn't go back. If my dad had done so, he would have had a bullet from Mr. Stalin.
I get all that. That's ingrained in our family. But a lot of people do take advantage of this, and not everybody is a good guy. There are a lot of smugglers. A lot of the smuggling turns into trafficking. The trafficking turns into people who basically have invisible chains and are stuck in a system where they are put into hugely dangerous situations. We also have a responsibility as a country to make sure that this doesn't happen to those victims, so that's why we have to vet some of those processes.
What would your comments be—we could take all three of you in turn—on what the balance should be between accepting refugees and the safety of the Canadian public, keeping in mind bogus refugees, some people who are criminal refugees, and potentially, terrorist refugees?
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Every system you devise will create false positives and false negatives; that is to say, no system will perfectly capture everybody you want included and everybody who you think should be excluded.
The discussion I think thus far has been focused almost entirely on those who are perceived to be those who ought to be excluded and how the system falsely includes them. Very little attention has been paid to those who the system currently excludes who ought to be included, and how many more people will be excluded under a new system who ought to be included. That leads us back to discussions about the necessity of appropriate appeals and other kinds of recourse.
But on this idea of the bogus refugee that looms so large, let me just pick everybody's, you know, the government's favourite bogus refugee: the Roma. There's all sorts of evidence that the Roma face extraordinary discrimination. Whether that discrimination amounts to persecution in every case, in some cases, or in many cases is open to question.
But for somebody who faces extreme discrimination, for example, to make a refugee claim and to have a decision made that says, you know, you face discrimination, but it's not severe enough to amount to persecution. That person may not be a refugee. But to put them in the same category of bogus as somebody who just wakes up in the morning and decides they're just going to come to Canada and make a refugee claim—