CIMM Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, February 10, 20000

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[English]

The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Good morning, colleagues.

Pursuant to Standing Order 108(2), we shall resume our study on all aspects of the refugee determination system and illegal migrants.

Our first witness this morning is Judith Kumin from the United Nations High Commissioner for Refugees. Welcome to our committee, Judith. We look forward to your presentation.

We'd like you to give us about a 10-minute summary of your brief, which we've read, to give us the opportunity of asking you some questions. Again I want to thank you for taking the time to brief us on this very important issue as we move towards, hopefully, some improvements in our refugee determination system and for helping us understand the phenomenon of illegal migrants and how we can distinguish between genuine refugees and those who may be illegal migrants who may want to come to our country from time to time.

Thank you very much for coming, and we look forward to your presentation. Welcome.

Ms. Judith Kumin (Representative in Canada, United Nations High Commissioner for Refugees): Thank you very much, Mr. Chairman, and thank you for the invitation to UNHCR to appear today.

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As you said, the members all have a copy of the note we submitted to you for the session in December, which had to be postponed until today. I will try to highlight some of the points from that note that are of particular relevance in the framework of your current study. Of course there are many topics we would like to discuss with your committee, but I will do my best to limit myself to those that are relevant in the context of your terms of reference.

Mr. Chairman, your committee study is taking place in an environment of heightened concern about the smuggling and trafficking of people. We share that concern, but we would urge you to recognize that many genuine asylum-seekers and genuine refugees have no option other than to resort to the services of smugglers in order to gain access to safety.

The phenomenon of people-smuggling has expanded as states have made legal access to their territories more difficult, including access for asylum-seekers and refugees. I would like to distinguish between the two phenomena of smuggling and trafficking. The trafficking of humans, most commonly for the purpose of sexual exploitation or forced labour, is an odious practice. We would urge that steps to tackle this problem concentrate on what are frequently called the three Ps: preventive measures, the prosecution of the organizers, and the protection of the victims. We would urge you to recognize that trafficked persons are indeed very often the unwitting victims of unscrupulous criminal organizations.

This being said, Canada, like just about all other industrialized countries, is today facing the challenge of mixed migration. That is the movement of persons, flows of persons who are on the move for a variety of reasons. Some are seeking protection from persecution or are fleeing war. Some are seeking economic betterment. The difficult problem concerns those who have a mixture of these motives. This is why there are refugee status determination systems.

We believe Canada's refugee status determination system is fundamentally sound. That is, it is able to distinguish persons who are in need of protection, or refugees, from those who are not. This procedure must remain fair, and we applaud the Canadian authorities for insisting that this be the case despite current pressures. We agree with Minister Caplan and others, however, that the procedure should be as expeditious as possible. It is in no one's interest that the refugee status determination procedure be unduly protracted.

As you and the government seek to streamline and expedite the procedure, we would like to urge you to give attention to the following issues, which are of fundamental importance to the UN High Commissioner for Refugees. There are six of them, which I will highlight briefly.

First is the question of access to the procedure. We appeal to Canada to keep its refugee status determination mechanism accessible, as it has always been, to persons seeking protection. Access to procedures is the only way to make sure article 14 of the Universal Declaration of Human Rights is not a dead letter. I would remind you that article 14 reads: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

Secondly, we would urge you, and through you Canadian public opinion, not to confuse undocumented claimants with uncooperative claimants. There is a difference. Many refugees and asylum-seekers do not have and are not able to obtain valid documents. Many bona fide refugees have no choice but to travel with falsified papers or surreptitiously without any documents at all.

We need only to think of the images of the Kosovars last summer who were stripped of their documentation by Serbian police as they tried to leave their country. Nonetheless, asylum-seekers have the obligation to cooperate in establishing their identity and in establishing the elements of their claim, but they should not be required to contact the authorities of their country of origin or to obtain documentary evidence directly from those authorities at whose hands they are claiming to fear persecution.

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As a third point on detention of asylum-seekers, as a matter of principle, the high commissioner's office has always urged states—and we continue to do so—to refrain from detaining asylum-seekers. If governments do resort to detention, as an exceptional measure, this should be for the shortest time possible and for carefully specified reasons. Asylum seekers should not be held together with common criminals, and children should not be detained.

The fourth point concerns the need for a review or appeal mechanism. UNHCR believes, and has long said, that an appeal on the merits is a basic element of due process. It is one that is present in virtually all other determination systems. Integrating a review mechanism into the Canadian system would enhance its credibility and would not need to lengthen unduly or complicate the procedure, and I would say that an appeal mechanism may become more necessary than ever if some of the steps under discussion to consolidate the procedure are implemented.

Fifth, it is legitimate for states to expect rejected asylum-seekers to leave the country. It is a basic principle underlying the refugee determination process that rejected asylum-seekers should leave the country if a full and fair consideration of their claim results in the decision that they are not in need of protection or not otherwise entitled to remain. However, a full and fair consideration of requests for protection needs to take into account the full spectrum of protection concerns and the full spectrum of states' obligations, and that includes those incumbent on states like Canada that are party to the UN convention against torture.

The last point, a final point that is actually not in our original note but I think might be interesting to highlight, is that we believe it can be very helpful to take steps to promote the voluntary return or the voluntary departure of rejected claimants. As I said, governments are entitled to remove persons from their territory who do not have title to stay, but in our experience, we have seen that programs to support the voluntary departure of rejected asylum-seekers can be very helpful. Such programs can help rejected claimants to return home in safety with a certain degree of dignity and permit asylum countries to monitor the departure of rejected claimants.

In conclusion, the UNHCR would like to pay tribute to Canada's reputation as a leader of the humanitarian cause. Canada is a valued member of the UNHCR's governing body, our executive committee, and Canada is a supporter of our work around the world. In 1986, the people of Canada were awarded the international community's highest distinction for service to refugees, the Nansen Medal.

We recognize the need for certain adjustments in Canada's refugee and immigration policies and procedures and are quite prepared to work with the government on those adjustments, but we would like to urge that Canada's humanitarian tradition, which has served as a model for so long to so many other countries, be preserved.

Thank you very much, and I'm quite prepared to do my best to answer your questions.

The Chair: Thank you, Judith.

We'll go to questions. Leon.

Mr. Leon E. Benoit (Lakeland, Ref.): Thank you, Mr. Chair, and good morning, ladies and gentlemen.

My first question has to do with the comment you made in your presentation about not confusing undocumented claims with uncooperative claims. I would like you to comment on how you see situations where people get on the plane with documentation and get off the plane without, in terms of the cooperative and uncooperative and undocumented claims.

Ms. Judith Kumin: That is, of course, a very common problem, because on the one hand, claimants frequently are travelling with the help of smugglers or agents to whom they are required to return the documents on the airplane. But it's not unknown that claimants also destroy documents on the airplane in order to remove the possibility of being returned immediately upon arrival at their destination.

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The important thing for us is that when the individual claimant is in a situation on arrival where he or she can assert the claim and tell his or her story, a climate of confidence should be created such that the individual feels in a position to explain why he or she has no documentation, who he or she is, and to do so credibly.

If, after a climate of confidence has been established, the individual refuses to reveal his or her identity, refuses to cooperate with the authorities in establishing the elements of the claim, then one is in the presence of an uncooperative claimant. But an undocumented claimant is not necessarily an uncooperative one. There needs to be, really, an element of wilful failure to cooperate, rather than simply a failure to cooperate because of fear or trauma or uncertainty of what the future holds.

Mr. Leon Benoit: If someone gives false information as to their identity after they've, again, as an example, gotten on a plane with documents and gotten off without, would you consider that uncooperative?

Ms. Judith Kumin: Again, not automatically, because very often bona fide asylum-seekers, out of fear, are following instructions or suggestions or advice from people who don't always give them the best advice. But once a climate of confidence has been created, once the person has had access to a full and fair procedure and has had access also to social counselling or legal counselling, if the person persists in a falsehood, yes, then we would find that claim unfounded, because the person has had a fair chance to tell the truth.

Mr. Leon Benoit: Could you describe what you would consider a fair chance under those circumstances?

Ms. Judith Kumin: One of the important things is that the person not be put in the position, immediately upon arrival, when confronted with a uniformed official, of being faced with a kind of interrogation. That's why we have always insisted that the refugee status determination procedure be done by persons who are qualified to do that.

In the current system, where an individual first enters Canada and then appears before the Immigration and Refugee Board and has had a chance to consult counsel and to rest and recuperate, that certainly is a fair chance. If at that stage the person persists in a falsehood, then we think it would be fair to presume this claim is not founded. But not necessarily at the port of entry, because a lot of claimants are afraid of people in uniform, they've been through a bad experience in their country of origin, or they've been told it's dangerous to tell the truth immediately on arrival.

Mr. Leon Benoit: In regard to that access to counsel, something we've heard a lot about is the concern that people who maybe have no intention of applying for refugee status, or claiming refugee status, are advised to do so by that counsel. That causes some problems, because people who really had no intention of claiming are claiming because of the advice they get. How do you view that and what do you think can be done about it? Is there anything?

Ms. Judith Kumin: There's no quick fix to the problem of persons who apply for refugee status who are not in fact refugees. The only approach to this is having a procedure that is expeditious and decision-makers who are capable of separating out persons who have substantive claims from those who don't.

We think, or we would hope, that persons who do this on a regular basis—decision-makers whose job it is to identify persons in need of protection and those not in need of protection—will be able fairly quickly to sort out those cases that need to be looked at carefully from those that don't.

Mr. Leon Benoit: I agree with you that the critical issue in this whole scenario is for Canada to develop—I'd say redevelop—a large enough contingent of well-experienced, well-trained people. There's no substitute for that training and experience, from what I've been told by people who work on the front line. It's extremely effective, and that is an important point.

You were talking about people-smuggling, and you said we should focus on prevention. In focusing on prevention, I think you were saying we should pursue the smugglers themselves with vigour and leave the victims alone.

Certainly many people who come with the help of smugglers can be considered victims, in a way. I wouldn't say they're completely innocent victims, and certainly they're not victims in a lot of cases, because in most cases I would suggest they certainly know they're entering a country illegally with the help of a smuggling ring. They know well what they're doing, although in many cases they may not know what they're getting into. So I think your comments on the victim could use some discussion.

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But isn't an important part of prevention also found in sending that clear message to others who might consider using smugglers, that if they come to our country, they are going to be dealt with very quickly; that if they're found not to be refugees, they're going to be sent home quickly? Isn't that a very important part of the whole prevention scenario?

Ms. Judith Kumin: I would like to try to explain the distinction we make between smuggling and trafficking, with your permission. It's a distinction that is being made in the current discussions in Vienna. There is a conference going on for the drafting of a protocol to the proposed UN Convention on Transnational Organized Crime, a protocol precisely on the trafficking of women and children.

In the drafting process, a clear distinction has been made between smuggling and trafficking. We try to explain it like this. Smuggling occurs when an individual has recourse to the services of an agent, a person, or a smuggler for the purpose of reaching another country and crossing a border, and the contract ends there. It's simply the act of helping a person to illegally cross the border. Trafficking occurs when the person is used by an organized criminal group or a criminal individual in order to place that person in another country for the purpose of financial gain through sexual exploitation, prostitution, or forced labour.

So we have the distinction between a person who simply contracts the services of a smuggler to get somewhere, and the contract ends there, and a person who frequently unwittingly, while thinking he or she has just contracted with a smuggler, has actually become the victim of a ring or a gang that is going to have a hold over that person for years to come, most commonly through prostitution or forced labour. I think it's necessary to make that distinction, because the second practice is, of course, even more odious than the first.

Mr. Leon Benoit: Can you judge that partially by the fee being charged? If people are willing to become indebted in a very serious way, wouldn't that lead you to believe they fully expect to have to work that debt off once they arrive?

Ms. Judith Kumin: I think one can look at a number of factors in order to distinguish, and the size of the fee is one. Another is the size of the group or the number of people involved. Smuggling is more commonly an individual phenomenon or that of a small group. A family will contract the services of a smuggler to take them, say, over the border from Poland to Germany. That's one person, two people, or three people.

I think another indicator is whether or not the individuals apply for asylum immediately upon arrival. Frequently, with genuine asylum-seekers who contract with smugglers to get into a country where they intend to seek protection, the first thing they do on arrival there is contact the authorities and ask for protection. That's another indicator.

Could I just answer on the three Ps? On prevention, this is really a very complicated issue that has to take in a whole series of actions, not just those from the immigration perspective. One needs to look at the conditions in the areas of origin from which the trafficked persons are coming, why they're buying into these schemes, and what can be done through development activities and through information campaigns to first of all put a stop to it, but also to provide reasonable alternatives. Maybe different types of immigration programs are part of the answer.

Protection means not necessarily that the victims will stay in the country to which they were trafficked, but that their return can be arranged in a way that will not further victimize them. They should not be the subject of punishment for having bought into this scheme, but those who organized it need to be prosecuted.

The Chair: Thank you.

John Bryden.

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

On this business of destroying documentation onboard aircraft and refusing to identify oneself when one lands, should that not be taken as prima facie evidence that one has an uncooperative asylum-seeker, if they've destroyed their documentation and have refused to identify themselves?

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Ms. Judith Kumin: No, not necessarily. A person who has a well-founded fear of persecution in the country of origin may be so anxious about being returned to that country and about what he or she would face on arrival that, perhaps on the advice of others, he or she destroys the documentation during the voyage. That person might also be frightened, when faced with, say, a uniformed border guard at an airport, to tell the truth. But once the person has been taken out of that environment of fear and is faced with a fair hearing, then I would agree with you, but not in the initial step.

Mr. John Bryden: I'm interested in the criminal aspect of this, not in the humanitarian. I appreciate that the humanitarian aspect is very important, but it's the criminal problem that troubles us here. Why do smugglers advise people to destroy their documentation on board the aircraft and refuse to identify themselves? Why do they give them that advice?

Ms. Judith Kumin: It's quite clearly for two reasons. One is to avoid return immediately to the port from which they departed. A lot of countries have a practice now of actually checking people on board aircraft before they even disembark from the aircraft, and if they don't feel their documents are in order, they stay on the aircraft and go back where they came from. So it's to avoid that.

It's hard for me to put myself in the head of the criminal, but I would imagine that another reason is to avoid the possibility for authorities to trace where these documents are coming from, to see them, to see the similarities, to see who is making them, and to get a handle on these rings. Once again, as for trafficking, it's a question of getting at the organizers and not victimizing the persons who may have no choice other than to resort to this in order to get to safety.

Mr. John Bryden: Isn't this then the central dilemma? If a country such as Canada follows your advice, and because some might be fearful of the uniformed officer and might have destroyed their documentation for valid reasons, but mixed in, and probably in the majority, are people who have destroyed their documentation deliberately, doesn't that put Canada in a complete dilemma then? We can't send back any of them, because unless the people are returned on the same plane they arrived on, the countries they come from will not take them back. Isn't it a guarantee that the illegals will stay in Canada?

Ms. Judith Kumin: Returning rejected asylum-seekers has proved particularly difficult for countries, frequently because it has proven hard to obtain travel documents for the return of an individual or hard to identify where that individual actually came from. There are numerous cases where a country simply denies that the individual is a citizen of that country and therefore refuses to take the person back. But these cases are a minority of the rejected claimants. In the majority of cases, it is possible to determine who the person is and to what country that person should return.

It would be risky to have a procedure that would be so summary and expeditious at the point of arrival that you would risk sending back people who are in need of protection. You have to balance the two.

Mr. John Bryden: How can you give me that figure, that it's the minority of cases? We've heard testimony here saying this is the procedure: they come in at Pearson and they deliberately destroy their documentation, because they know they'll be given a hearing, and they know that once they're taken off the plane for that hearing, they can never be returned. We have now thousands of people entering the country illegally on those grounds, and we can't detain them, because as you point out, detention is not very humane either.

Ms. Judith Kumin: In most of the cases, it is determined in the course of the procedure who the people are and what their country of origin is. The next problem, if the persons are found not to be in need of protection, is to persuade that country of origin to readmit them and to issue a document to take them back. That's where discussions on the bilateral and on the multilateral level have to come in.

Mr. John Bryden: Okay. I'm still having a little trouble with that, because I want to help the people in need, but I do have this problem that your testimony seems to be at odds with what we are hearing otherwise. Do you have any advice on how we can solve this problem? If we don't turn them back on the same plane, how in the heck can we ever get them back if we can't negotiate with the country to accept people who are basically without documentation?

Ms. Judith Kumin: If they have destroyed the document on the plane, we'll have difficulty returning them, even on the same plane. But in actuality, rejected asylum-seekers are being returned on a regular basis from Canada and from other countries, so the problem is resolved on a case-by-case basis, after the hearing. There are some cases that aren't resolved, but returns are taking place regularly. I don't have any statistics, but it would be interesting to try to have a look in order to see how big the problem caseload really is.

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Mr. John Bryden: Mr. Chairman, that's my—

The Chair: Thank you.

I'll go to remaining time, with Rick Limoges.

Mr. Rick Limoges (Windsor—St. Clair, Lib.): Thank you. Several of my questions have been asked already, but I was wondering...I think you know Canada certainly wants to help refugees, but we want to avoid being taken advantage of as well. The real crux of the issue is determining a bona fide refugee versus others. Do you have any specific suggestions for the improvement of our system? You've said you recognize that there may be a need for some adjustments. Do you have any suggestions of what works elsewhere or of what we might want to consider in order to continue to treat people in a humane manner, while by the same token being able to assure ourselves that those people who are not bona fide refugees can actually be found and removed?

Ms. Judith Kumin: I have to preface this by saying that I've only been in Canada for a couple of months, so it's a bit presumptuous for me to make suggestions on a procedure that others have worked on for years.

It would perhaps be worthwhile looking at the phases that the Canadian procedure is currently divided into and where a lot of time is being spent. What I've seen since I've been here in Canada is that there are in fact three phases. There is an amount of time that is taken before Immigration refers the case to the Immigration and Refugee Board; there is the period of time taken by the Immigration and Refugee Board to examine the claim; and then there is the period of time afterwards, when various post-determination risk assessments are made.

In my opinion, the first and the third phases of this procedure could well be shortened or could even be done away with. The first phase of referral to the board frequently takes months, and that is perhaps not necessary. An asylum claimant could be referred immediately to have his case heard and would not spend so much time waiting for the assessment of whether his claim is admissible or not.

We have talked quite a lot amongst ourselves, and also with CIC and with the board, about case management measures that could be taken to shorten the length of time that the Immigration and Refugee Board takes to look at a case. I think it is possible, and other governments are making a considerable effort to ensure that this first-instance examination of a case takes place as quickly as possible.

Then there's the third phase in the Canadian procedure. Once again, the post-determination risk review, the humanitarian and compassionate review in Canada, can take a very long time. That could certainly also be compressed, especially if the Immigration and Refugee Board decision becomes a consolidated one if they look not simply at the eligibility for refugee status but at whether or not there are other humanitarian or risk-related elements that need to be taken into account. Roll it into one decision in order to save time on the back end of the procedure.

Mr. Rick Limoges: What of the concern of violating the rights of those individuals by compressing that initial timeframe? In other words, what if they don't have time to properly prepare or get proper counsel?

Ms. Judith Kumin: Even if the case is referred immediately to the Immigration and Refugee Board, there would still be in the procedure a block of time, whether it's the current thirty days or whatever, for the individual to seek the advice of counsel and to prepare his claim, and that would certainly be sufficient. The concern we have, if the procedure is consolidated, is that it would be necessary to build into the procedure at least a paper review of the decision made by the Immigration and Refugee Board in the first instance. It's a rather unique situation in Canada that you have essentially only one instance for your refugee status determination procedure. Every other country that has a refugee status determination procedure, with one exception—I was only able to find one exception when I looked at this—has a second instance or a review on the merits of the claim in some manner or another.

So if you can compress the procedure but can introduce a review so that a second officer has a look at the case, even in an expeditious manner but one that at least allows us to know that no terrible mistakes have been made, there will be the necessary safeguards built in.

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I think it's important that we always remind ourselves that a decision on whether a person is a refugee or not is certainly one of the hardest decisions there is to make for an individual judge or decision-maker. It's also one of the most earth-shaking decisions because the consequences of a wrong decision can be so terrible. That's why we have long urged, and continue to urge, Canada, like all other countries, to introduce some sort of review mechanism for the assessment of the claim.

The Chair: Thank you.

Bernard Bigras.

[Translation]

Mr. Bernard Bigras (Rosemont, BQ): My first question ties in with what you talked about in your brief regarding the integrity of the right of asylum. On the one hand, I believe it's important for the committee to uphold this fundamental right, one that is well entrenched in the 1951 convention. It is a reflection of the fundamental values that Quebec and Canadian society hold dear, namely solidarity, brotherhood and helping others.

Recently, I read something that was said by Toronto Senator William Kelly who chaired the proceedings of the Senate Committee on Immigration. He observed that criminals had managed to skirt this convention to their advantage and that our system had become a screen. There aren't enough personnel at the borders and criminals are using the current situation to their advantage.

Is it possible that the actions of those involved in organized crime and of those who abuse the system might bring us to call into question- something that I don't wish for -the integrity of the right of asylum? Are these actions having a ripple effect? You have a responsibility to defend this right.

When I read your brief, all I see is a proposed UN convention on transnational organized crime, of which no details are given, and two protocol agreements which are currently being drafted. Don't you feel that the actions of these parties, namely organized crime and people who abuse the system, threaten the integrity of the right of asylum?

Ms. Judith Kumin: Of course we share your concerns. We want to uphold the integrity of the right of asylum, but we don't have an international police force to take on this task. That's where individual States have a responsibility. The only solution we can propose to avoid situations where criminals abuse this right of asylum would involve establishing a refugee status determination process. This process must be fair and speedy so that real refugees can quickly be distinguished from bogus ones. Criminals would thus be discouraged from using this process falsely to their advantage.

Mr. Bernard Bigras: I see.

On page 4 of your brief, under the heading “Detention of asylum seekers”, you note the following:

We ask governments to avoid the detention of asylum seekers as much as possible.

Since the arrival of the boatloads of refugees, the government has brought in a new policy which calls for suspicious persons seeking refugee status to be detained until their case can be heard. Doesn't this new policy sharply contrast your position on the detention of asylum seekers?

Ms. Judith Kumin: We understand the Canadian government's decision to detain these particular refugee claimants. Our position applies to cases where it's clear that the persons in questions are genuine asylum seekers. In the case you mentioned, one has to wonder why these persons came to Canada. Therefore, the Canadian government's decision to detain these individuals is understandable.

However, it's important that the time spent in detention be as brief as possible. At present, we are somewhat concerned because some of the individuals in question have been in custody for nearly six months now.

When a decision is made to detain asylum seekers, a determination must be made quickly so that arrangements can also be made without delay for removing persons who are not in need of protection. Detaining persons for six, nine or twelve months is not the answer. Persons who are being detained must be processed quickly.

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Mr. Bernard Bigras: Do you feel that these principles are now being applied in Canada?

Ms. Judith Kumin: Unfortunately, we don't feel that these individuals are being processed as quickly as they should be. Some of the people who arrived in August are still being detained. A way needs to be found to process these persons quickly. We wouldn't want them to be detained a day longer than is necessary and I'm sure you share this view.

[English]

Let me just add one other thing to this question of detention.

The Canadian law provides three reasons for the detention of asylum-seekers, and it's up to the individual adjudicator to decide whether or not the conditions that would allow for detention of an asylum-seeker are met. I think it's very important, in the case of the group we're looking at now, to be sure the decision is truly an individual one and not a group one. The assumption that everyone will disappear or the assumption that no one will appear for hearings is a very dangerous one to make, so we would really urge that the adjudication take place on an individual basis. We'd also urge that the procedure proceed as rapidly as possible, because quite a lot of these people—and we've seen a lot of them—are truly distraught at being held in detention. They didn't understand what they were getting themselves into in the first place.

The Chair: Thank you.

Rob Anders.

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

In some respects, my question touches on Mr. Limoges' question. You said earlier on that asylum-seekers, if they're rejected, should leave the country, and that there should be a way of streamlining the system to make sure this actually happens and that they don't disappear into the ether and in some respects have a condonation or be able to get away with violating what is a proper asylum-seeker provision.

The question was asked about what your thoughts were on the Canadian system and recommendations. You said you've only been here for a couple of months. I'm wondering if I can pose the question, then, to Mr. Tezier and to Mr. Lyndon. And, please, we're trying to improve the system here, folks, and if it's not you that we ask, then who?

Mr. Greg Lyndon (Legal Officer, United Nations High Commissioner for Refugees): Our main task at UNHCR is to make sure that whatever system is created in Canada meets international standards and complies with the 1951 convention. The conversations and discussions taking place about changing or improving the system should always keep in mind that we hold the convention out as the model. So to answer that question—

Mr. Rob Anders: Mr. Lyndon, can I try to stress it for you then?

Mr. Greg Lyndon: Sure.

Mr. Rob Anders: You must be familiar with what other countries do in regard to their process for rejecting and removing people who fail the asylum-seeking process. Are there any other examples that you can provide from other countries that will help us out in this regard?

Mr. Greg Lyndon: Well, if you're looking for examples from other countries, then Ms. Kumin would definitely be the person to answer the question.

Ms. Judith Kumin: With regard to the return of rejected asylum-seekers, I don't think there are many countries that do a whole lot better than Canada with regard to removals, to the extent that one can gather statistics. It's a difficult problem. But where we have seen some movement is in a few countries that have established, together with one of our partner agencies, the International Organization for Migration, a program to promote voluntary departure of rejected claimants.

In Germany, where I worked before, but also in Belgium and in Holland, this program operates. It permits rejected claimants who understand that they can't stay any more to benefit from leaving voluntarily with some assistance rather than waiting for the police to come with handcuffs to take them away. It has led to an increase in the number of people departing voluntarily. The governments have decided it's in their interest to provide some financial assistance for the voluntary departure of people rather than to go through the expense of removing people. So one thing to look at would be programs to support voluntary departure.

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Another thing to look at is, of course, a requirement to report after rejection. That would be another option, and it's an alternative to detention. The rejected asylum-seeker would have a requirement to report to the authorities and to report on his plans for departure.

Mr. Rob Anders: You talked about streamlining and shortening the timeline in the process. Six to nine months for detention, for example, is something that I think is too long. What I want to find out is whether there are countries that you feel meet all of the 1951 convention guidelines, as it were, and that do so in an expeditious manner. Are there countries that we can look to as examples on that front?

Ms. Judith Kumin: The 1951 convention actually doesn't set out what a refugee status determination procedure should look like. The only real international guidance we have to go on is resolution 8 of the executive committee of the UNHCR. Most countries are seeking to have their first-instance procedure completed in less than six months. Some countries are seeking to have their first-instance procedure completed in less than four months. What we see is that countries can usually accomplish this until they're faced, like the United Kingdom was last year, with a sudden increase in applications. The United Kingdom saw applications double last year.

Mr. Rob Anders: Okay, who's aiming for four months?

Ms. Judith Kumin: Germany for one, the United Kingdom, and Denmark in the first instance. Four to six months seems to be the goal of the first instance, but these countries all have a review instance. The challenge is much more at the level of the review instance than at the level of the first instance.

The Chair: Thank you.

For the benefit of members of the committee, that comparative study that you may have alluded to, Rob, should be in your hands. That was completed by our own administration, and it's on how countries deal with something. You may want to refer to that at some point in time with regard to that issue. Of course, the committee will consider that, because I think it was one of the things we wanted to know and to see, and I think Judith's comments have also been helpful.

If in fact you have some additional information, Judith, that you can forward to the committee at some later date with regard to the question Mr. Rob Anders has posed, and that might be of interest to us with regard to other countries, we would welcome that information.

Mr. David Price.

Mr. David Price (Compton—Stanstead, PC): Thank you for being here today.

You mentioned that you had been working in Europe, so I'm sure you're aware of the Finland meeting last fall. Unfortunately, Canada wasn't even an observer, so I'd definitely be interested in hearing of what the UNHCR's involvement was in that meeting and what's going on with the whole European group in terms of the fact that they are getting together and are going to look at the problem as a group.

Ms. Judith Kumin: The meeting in Finland last fall that you're referring to was the Tampere Summit. That was the first time there was a summit conference of the European Union devoted specifically to immigration and asylum questions. The summit was really more of a symbolic way of marking the decision of the fifteen member states of the European Union to become, as much as possible, a single area for asylum and immigration purposes.

What we've been involved in with the European Union has been an effort by the fifteen to harmonize both their asylum procedures and their material law. Obviously, the rationale for this is that when you create a single political area, you need to create a single area for the free movement of persons and goods, and that is going to affect how immigration and asylum questions are dealt with. In reality, this harmonization process has proceeded very painfully and very slowly, and we still have fifteen member states with sometimes radically different asylum procedures, but, even more seriously, radically different interpretations of the refugee definition.

The UNHCR has been reminding the fifteen member states that they need to first harmonize their material law—that is, their interpretation of who is a refugee—before harmonizing procedures will have any effect on whether asylum-seekers move around among the fifteen member states, looking for the most sympathetic or the most favourable hearing.

Mr. David Price: I imagine that was one of their goals, though—to harmonize the procedure.

Ms. Judith Kumin: Yes, but they tackled it from the procedural end rather than from the material law end. Therefore, it has had very little effect on the movement of claimants within the fifteen member states.

• 0955

Mr. David Price: When you first started your presentation, though, you mentioned that Canada has been in the forefront. We've won all kinds of accolades. We haven't done that in very recent times, I guess. Who is winning them out there now? What is the best country?

Ms. Judith Kumin: If you're asking what is the best country, you're going to have to define your question. What are the criteria?

Mr. David Price: I'm talking definitely of their refugee claimant system and how it works.

Ms. Judith Kumin: To a certain extent, it's a comparison of apples and pears. There's no perfect system, but there are some elements from other countries' systems that are interesting to look at.

For instance, Denmark is an interesting example. They have brought their leading non-governmental association into the decision-making process in order to create better public consensus on the issue of who is and who isn't a refugee. They've developed a very interesting mechanism whereby there's an initial screening for manifestly unfounded cases. If the initial screening finds a claimant's story to be manifestly unfounded, the Danish Refugee Council, which is, let's say, the leading non-governmental organization, is asked to agree or disagree with that. If the refugee council agrees with it, the claimant then has no further recourse and the story ends there.

It has been, for me, a very interesting example to look at, because it shows that you can create better public consensus on who is and who is not in need of protection.

There are elements that you could take from different systems. The German system has succeeded in having the initial interview very quickly after the arrival of the claimant. They have found that this is the best way for them to get the individual to tell his or her story in his or her own words, early on. They do have a lengthy review and appeal process at the other end—a judicial review process.

Perhaps a third model to look at are those of countries that have a multiplicity of statuses, that is, they have the possibility to grant refugee status under the 1951 convention, but they also have a humanitarian status, or a B status, for persons who are not refugees stricto sensu but who need some sort of protection. That also helps to create consensus about who is a refugee and who needs some other form of assistance. That's a model that's very common in the United Kingdom, with exceptional leave to remain in the Scandinavian countries and in Holland.

So I think you have to pick and choose elements rather than say one is perfect.

Mr. David Price: You mentioned the NGOs in Denmark, which is an interesting concept and is something we definitely don't have here. How do you feel about the way our IRB members are chosen?

Ms. Judith Kumin: It's not for me to say how they are chosen, but what is of concern to UNHCR is that persons who are making decisions on asylum applications need to be the most qualified people available to do that. So whatever mechanism you have for choosing them, you need to make sure that you are choosing people who really have not just the formal qualifications but also the human qualifications for doing that work.

The Chair: Thank you, David.

Mr. Benoit.

Mr. Leon Benoit: Thank you, Mr. Chair.

I'd just like to get back to how you brought up the issue of detention and an acceptable timeframe. I think we all agree that what's happening with the people who came by boat isn't acceptable. The timeframe's too long.

You talked about the need to speed up the process. In terms of speeding up the process, you suggested an appeal mechanism within the IRB. I think you indicated that an acceptable appeal process would be to have another officer look at the case. To me, that seems to make an awful lot of sense. Right now, the only appeal, really, is to the Federal Court. The Federal Court can't look at new information; all they can do is review the information from the initial reviewing officer.

Is it your intent to have the reviewing officer look at all the information again and go through the process again, or to have the officer just review the information from the initial reviewing officer? Either way, it would dramatically speed up the process from what we have right now—going to the Federal Court and seldom changing the outcome.

Ms. Judith Kumin: Initially the reviewing officer would look at the information on the file. In most cases, the reviewing officer would be able to reach his determination based on the information on the file.

• 1000

We think it would be important that the reviewing officer have the discretion, if necessary, to call for additional information, or even, if he felt it was absolutely necessary—and probably exceptionally—to rehear the claim, but in the majority of cases the information on the file should be sufficient.

Mr. Leon Benoit: That's an extremely valuable suggestion or recommendation that you have and I think this committee should look very seriously at that. I think it could improve the process and speed it up dramatically, so I'm certainly looking to that recommendation finding its way into the report. I thank you for that.

Part of what makes the process of refugee determination so difficult is balancing the protection of society, of the citizens, and the welfare of the citizens, I guess, with the welfare of the claimant, in some cases. That often does make it an extremely touchy and difficult thing to work with, but if you don't have a proper balance you're going to have the public losing faith in the system and you're going to see a backlash.

We've seen a little of that in Canada, and I think it could get much worse in certain circumstances, such as if we have a lot more ships come in next summer or at some other time. I think that certainly has to be a concern. Canadians really don't have a lot of faith in our system right now.

When you look at the situation in countries around the world and you look at the acceptance rate in Canada, if you look at the official acceptance rate for refugees, it was 44%, I believe, in 1998, but in fact what we have in reality is a situation where we know only that 20% of those who claim ever leave our country. There's absolutely no evidence that more than 20% ever leave the country, which gives us an effective acceptance rate of about 80%. I think when the public sees that—

The Chair: That's interesting arithmetic.

Mr. Leon Benoit: No, that's reality. If they don't leave the country, then they've achieved their goal of being allowed to stay in the country. That's the reality of what happened in Canada in 1998. I don't think you can refute those facts. We've talked about that before.

The Chair: Except that there is a deportation order or a departure notice on file or whatever, but—

Mr. Leon Benoit: On file, but if the people are still here, they've achieved their goal, and of course that message gets around to the world.

In regard to the integrity of our system, there are really two things. The confidence of the Canadian citizens is lost, I think, and the message gets out to the world that if you want to find a country to go to, whether you're a refugee or not, the way to do it is through the refugee system, and the place to go to is Canada, because there's an 80% chance that whether you're accepted as a refugee or not, you're going to be allowed to stay.

The Chair: Is that the question, Leon?

Mr. Leon Benoit: That's the comment. I'd like some comment on that.

Ms. Judith Kumin: It's funny, but whatever country you're in thinks they're the place to go to. Canada, with 30,000 asylum applications last year, thinks it was the place to go to. In the United Kingdom last year there were 91,000 asylum applications, so your counterparts in Britain obviously think it was the place. In Germany, there were 95,000, so it was the place. It's clear that it's not—

Mr. Leon Benoit: Some of those countries are a lot more accessible geographically.

Ms. Judith Kumin: Yes, it's true that Canada has long been protected by its geography, but I would like to put to rest the misconception that Canada's recognition rate is dramatically higher than the rate in other countries, because that isn't true. In fact, there has been a tendency to compare apples and pears. If you look at Canada's acceptance rate, by which I mean the IRB recognition of refugee status, and the recognition rate in other countries, taking into account both grantings of refugee status and some sort of de facto status or B status like in the Scandinavian countries or in Holland, you get some quite comparable figures.

For instance, last year the recognition rate in Denmark was 68%. Those are 1998 figures, because I don't have 1999 figures. In Sweden and Finland, it was 50%. In Norway, it was 45%. Even last year, fiscal year 1999, in the U.S., which people commonly think has a low recognition rate, there you have to look at three instances: the INS, the immigration court, and the appeal court. The recognition rate in the first instance, the INS, was already 38%, with 13% at the immigration court and 15% at the appeal court. So you get a recognition rate in the U.S. in fiscal year 1999 that is also over 50%. So it really is no longer true that the rates in Canada are out of line with the rates in other countries.

• 1005

Mr. Leon Benoit: For the number going to the United States, the application numbers have been going down dramatically since 1995, from 150,000 in 1995 to 35,000 in 1998.

Ms. Judith Kumin: Correct.

Mr. Leon Benoit: The message has been sent.

Mr. Judith Kumin: Correct.

The Chair: Thank you.

Steve Mahoney.

Mr. Steve Mahoney (Mississauga West, Lib.): Thanks, Mr. Chairman. I'd like to pursue this a bit, because the image that particularly is portrayed by members of the opposition, specifically the Reform Party, is that Canada is a soft touch and that we have to somehow send the message.

I'm interested in some of your figures. You show that we're taking about 5% when compared to 24 other countries. I'm a little surprised at that.

I'm also interested in your remark that, wherever you are, whatever country you're in, it seems to be that everyone thinks we're being abused terribly. What you're showing us here is that this is not necessarily the case.

So there are a couple of things. One is this image that Canada is a soft touch. I'd like your reaction to that.

I'll ask my questions, and in the limited time that I have you can then respond.

I'd also like your comment on a remark that was made earlier—I believe it was made by Mr. Benoit, but he'll correct me if he isn't the one who made it—that a number of the refugees who arrive here, the boat people we refer to, are well aware that they have to work off this debt. We know there are methods of working it off in such illustrious careers as prostitution, drug running—

An hon. member: Politics.

Mr. Steve Mahoney: I doubt that politics would qualify, although you never know, eh? This is the land of the free.

Some hon. members: Oh, oh!

Mr. Steve Mahoney: Anyway, in your role, I wonder if you know what level of knowledge these people actually have. Are they in fact living in a part of the world—I've certainly never been to that province, to that part of the world—that is without communications? Are they uneducated? Are they just totally being duped? What do they think they're coming here for, and what are they committing themselves to?

Ms. Judith Kumin: On the first part of your question, last year, 1999, in Europe—and by “Europe” I mean the 28 countries of Europe that receive asylum applications and not just the European Union—there were 440,000 asylum claims lodged. That gives you an idea of the proportion. Of those, 20% were filed in Germany and another 20% were filed in the U.K. Those two countries have a particularly large burden, but Switzerland also had almost 50,000 applications. Switzerland has a population of just 8 million people, so it also was really challenged by the problem last year.

I'm not sure Canada is...I don't like the term “soft touch”. I don't think the number of claimants coming to Canada is out of proportion with what we're seeing in other countries, and I don't think the recognition rate is out of proportion with what we're seeing in other countries that have a proper interpretation of the refugee definition.

We do have a problem with an overly restrictive interpretation of the refugee definition in some countries. In Germany, the refugee definition is limited. It's interpreted to mean only persons at risk from the state and not persons at risk from non-state agents like parties to a civil war. That restrictive interpretation leads to a painfully low acceptance rate and a lot of hardship to the claimants. So you can say Canada is a soft touch, but we can say Canada has had a correct interpretation, in our view, of the refugee definition.

On the Chinese migrants, the phenomenon of migration from Fujian province is a historical phenomenon. This is a part of China from which people have always migrated. There has long been a tradition on the part of families of sending one person abroad to get a foothold, to work, and to send money back. Frequently they send the smartest or the most able-bodied person, the prettiest daughter, or whatever. It's a tradition that we also saw in Vietnam in the late seventies and early eighties.

• 1010

Whether the people are aware of what they're going to, as far as I know, not fully. The people are certainly aware that they're going to work, but they are not generally aware of the conditions of this work. They are not generally aware that they are going to be essentially hostages of the snakeheads, in many cases confined to the basement of a restaurant or confined to a brothel. They believe they're going to New York or Los Angeles to work, but for them that's a kind of freedom in their minds. What they discover when they get there is that they're anything but free.

This is why the fact that information is starting to flow back to the places these people are coming from about what is happening is a very important factor.

The Chair: Mr. Bigras, then Mr. Telegdi and Mr. McKay.

[Translation]

Mr. Bernard Bigras: I have one question for you. I'm appealing somewhat to your expertise and international experience.

Yesterday, a particular association whose name I won't reveal and which you may perhaps recognize, made the following recommendation. Given that a number of people stow away to Canada on boats from Romania and certain other European countries, bypassing the overseas selection process or refugee status determination process offered by our embassies and consulates, this association recommended that Canada designate certain European countries as safe third countries in which requests for refugee status could be examined and that Canada sign bilateral agreements with these European nations. When stowaways arrive here in Canada, they could then be removed to these safe third countries where their applications could be considered in their country of origin.

How do you feel about this recommendation? Do you support it and is it feasible?

[English]

Ms. Judith Kumin: I would just urge you not to confuse the concept of safe third country, pays tiers sûr, with the concept of safe country of origin, pays d'origine sûr. Both mechanisms are used quite widely in Europe.

I think you're talking about the safe third country. That is the case where the asylum-seeker has passed through another country where he or she could have, or perhaps should have, asked for asylum. You have an example of such a mechanism in the form of the Dublin convention, which is a multilateral convention to which fifteen European states are party and which defines which state is responsible for examining an asylum request.

We think formal agreements between states—and I stress the word “formal”—can be a useful mechanism in establishing where the responsibility for examining an asylum request lies. It's very important that this be a formal mechanism and that it contain an assurance that the individual will in fact have a chance to have his or her claim heard in that third country and to have it heard in a full and fair procedure that complies with international standards. If found to be a refugee, the person will have the opportunity to secure asylum there in the sense of the Geneva convention.

Unfortunately, what we see is that there is a lot of sending asylum-seekers back to so-called safe third countries in the absence of any formal agreement between states. What you get then is a kind of ping pong game where you send your claimant to one state and that state sends the claimant to another state and that state sends the claimant to another state. You have a kind of chain deportation and you don't know where the claimant will end up.

In short, safe third country mechanisms can be a useful tool, provided they are the subject of formal agreements with the appropriate safeguards.

The other mechanism you mentioned, the so-called safe country of origin, is a procedural tool used by quite a lot of countries for identifying claimants who come from countries where there is generally presumed to be no serious risk of persecution. Our position on those procedures in the European context has been that we don't object to them being used as a procedural tool, as long as the individual will get a chance to rebut the presumption that he or she would be safe. In other words, Germany says that Romania is a safe country of origin, so Romanian claimants are presumed not to be refugees. But there still needs to be a hearing where the claimant can say all other Romanians are safe, but he is persecuted, and can tell his story. If that possibility to rebut the presumption exists, then that procedure can also be a useful tool to streamline a process where there are many claimants.

• 1015

The Chair: Merci.

Andrew Telegdi.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Thank you very much, particularly for the information that Canada is not the softest touch. We all thank you for that, and I'm sure Mr. Benoit thanks you extra specially for it.

The Chair: Now, now, I know you've been bored so far.

Mr. Andrew Telegdi: One of the things that has been somewhat bothersome is when you have refugee claims coming from democratic countries. Obviously, we're talking about minority rights and human rights for minorities. What can you and HCR do in terms of promoting human rights for the minorities in those countries so that we do not end up with the problem of people having to migrate?

Ms. Judith Kumin: The issue of promotion of minority rights is actually much more the task of our colleagues from the Office of the High Commissioner for Human Rights. Also, the Commissioner on National Minorities of the Organization for Security and Cooperation in Europe, Max van der Stoel, has been working very hard on this issue. We have been involved quite a lot in central Europe on minority rights issues to the extent that they were linked to citizenship issues. For instance, when the Czech citizenship law was being drafted, UNHCR was assisting in its expert capacity to make sure the new citizenship law didn't discriminate against national minorities, in particular Roma. But the day-to-day treatment of minorities—access to education, social welfare, and so forth—does not fall, strictly speaking, under our mandate. It is worked on by our colleagues from the Office of the High Commissioner for Human Rights.

Mr. Andrew Telegdi: I appreciate that, and actually you mentioned the group I was thinking about, which Mr. McKay has representation from—Roma from the Czech Republic. I appreciate that you work with other organizations in the UN, but how closely do you liaise with the commissioner for human rights at the United Nations?

Ms. Judith Kumin: We work very closely with the Office of the High Commissioner for Human Rights, and even more so in central and eastern Europe with the OSCE, which is very thick on the ground in those areas. We have representations, offices, in all of the central and eastern European countries that are monitoring the situation of minorities, as well as the situation of refugees and asylum-seekers, because you have an odd situation in central Europe.

These newly democratic countries to some extent are still source countries for movements to other areas, but to a very dramatic extent have become receiving countries. Last year, for instance, the Czech Republic received 7,000 asylum applications from other nationals, which is quite a lot—double the previous year. Hungary last year received 11,000 asylum applications, which was five times the previous year.

So we're really in a transition period where the two things are happening at the same time. But these countries are making serious efforts, and I would certainly say in Hungary and the Czech Republic the governments have been making very serious efforts to try to deal with the problem of discrimination against national minorities, especially Roma. It's one thing to adopt legislation to do away with official discrimination; it's another thing to change the minds and hearts of people who have this discrimination in them. And that will take some time.

• 1020

The Chair: Thank you.

We'll go to John McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman.

Looking at your chart—asylum applications submitted in the industrialized countries between 1990 and 1999—my question relates to previous questioning with respect to how we compare. What's quite startling in the bottom two lines is the North American percentage versus the Canadian percentage. In general terms, from 1993 through to the present, the Americans have dramatically shrunk their percentage of asylum applications, so that while in 1993 Canada had 2.8 out of the 22.6, and 1994, 4.4 out of 33.6, in the last year for which you have full stats it's basically 1 out of 2. I'm curious as to what happened. What's the story behind the statistics, and how is it that while we've had a decline in number, the Americans have had a dramatic decline in number? What's the story behind the statistics?

Ms. Judith Kumin: I don't know if I can give you an adequate explanation without looking at the disaggregated statistics. One would really have to see, in terms of countries of origin, whether the decrease can be attributed to a decline in claims from a certain country of origin and whether there is an explanation for that, either in terms of what's happening in the country of origin or what's happening in the country of destination.

I don't have the table in front of me, but of course it would be disingenuous not to admit that the new legislation that came into force in the U.S. in 1996, I think it was, probably had an effect. We saw in Europe, certainly, that when one country adopts restrictive measures, the people don't just vanish into thin air. They go somewhere else. It's like squeezing a balloon. So if one country takes very restrictive measures, it's logical to expect an increase in the claims in the neighbouring country. We saw that in the early nineties between Germany and Holland; we saw it in the late nineties between Germany and Switzerland; and now between Germany and the U.K.

This is why I think, and our organization thinks, that harmonization both of material law and procedures is so necessary, and that governments.... We're living in a global world where people can move around very easily, and it is important that we reach a consensus among governments about who is in need of protection and who isn't, and about how we're going to treat them in terms of the benefits they get, so that there isn't an interest in forum shopping, so that we can be sure that people in need of protection will find it in the first safe country they reach and they won't be motivated to keep moving on looking for a fairer hearing or a better hearing.

Mr. John McKay: A better chance of getting in.

Is this the manifestly unfounded legislation where the officer basically says, “This is a manifestly unfounded claim. Just turn around and go home”? Is that what you're referring to?

Ms. Judith Kumin: There were three things done in the U.S. in the 1996 legislation. I'm not an expert on it, but there was a kind of border screening introduced, which is what you're referring to. There was also a much stricter process introduced for admissibility to the procedure; that is, the threshold for the level of criminality that would exclude you from the procedure was dropped quite dramatically. And those—

Mr. John McKay: Could you explain what that means in real terms?

Ms. Judith Kumin: Any crime of violence for which the sentence is one year or more excludes you from the asylum procedure.

Mr. John McKay: Okay.

Ms. Judith Kumin: It includes any crime of theft for which the sentence is one year or more and any crime of fraud where the victim's loss exceeds $10,000. In other words, the crimes are quite clearly defined and the threshold is set very low. And that, combined with the border screening, has certainly had a deterrent effect. The other thing that has had a deterrent effect, which we're not happy with at all, is the widespread use of detention.

The Chair: Thank you.

John, you have one question.

Mr. John Bryden: Yes, I have one question. I'm very interested in the uncooperative asylum-seeker, as you gathered from my earlier question.

• 1025

This is a two-part question. Is this phenomenon of the person arriving without documentation and refusing to disclose identity an increasing phenomenon? Secondly, how are other states responding to it, because all states have the same problem? Is there an increase in states attempting to turn these people back to the countries of origin?

Ms. Judith Kumin: I would say the phenomenon has increased together with restrictive measures taken by states to limit access to their territory. If I take Germany as an example, because it's an interesting one, before the legislative change in 1993, anyone who showed up at the German border and said he was a refugee seeking asylum had to be admitted to the procedure. No one had any incentive to come with false documents or to destroy documents, because everyone knew they would get a hearing. Once you restrict access to territory and access to procedure, you create an incentive for people either to cross the green border illegally or to present themselves with false documents. So, yes, it has increased.

Mr. John Bryden: It's not false documents, it's the refusal to disclose identity. You've not....

Ms. Judith Kumin: I'm sorry, I misunderstood the question.

Mr. John Bryden: We know all about false documentation. It's the uncooperative asylum-seeker who refuses to disclose identity.

Ms. Judith Kumin: I don't know. I don't have any statistics on whether that phenomenon has increased. I could try to gather some, but I think it would be hard.

Mr. John Bryden: Then you don't know whether other states have been turning these people back summarily. You've made allusion to it.

Ms. Judith Kumin: We certainly hope states aren't turning people back summarily. The phenomenon that really concerns us is the so-called phenomenon of gate checks or checks onboard aircraft, because they take place in a grey zone that no one can monitor. If border police get on a plane at the airport in Frankfurt and, before people stand up, they go down the aisles and ask for peoples' documents and some people don't get off the plane, you or I will never know about it. Our concern is that the process of asking for asylum needs to be a transparent one, and we're worried about what is happening in these grey zones.

The Chair: Leon...and by the way, we have a vote at 10.45 a.m., so we have a little bit of time yet.

Mr. Leon Benoit: The chair has told me that I can't give my speech on Canada being a soft touch, but I do have four major arguments to back that up. I also have two very short questions.

I want to ask you a question about the United States. Based on what you've heard, do you believe the U.S. generally respects the UN convention?

The Chair: Do they pay their dues?

Mr. Leon Benoit: Secondly, earlier you mentioned voluntary departure. Are those voluntary departures monitored?

It's a two-part question on completely unrelated parts.

Ms. Judith Kumin: The second part is easier than the first, so I'll answer the second part first. The voluntary departures are monitored, and it's one of the reasons why they're attractive to states. In fact, in the program I'm familiar with, which is the German one, the grant that the departing person receives is paid when he goes through immigration control at the airport to leave. So there is monitoring.

I don't want to answer your first question quite as bluntly as you would probably like, but what I can say is that in years past there were very serious concerns about the asylum procedure in the United States. I think it's no secret that it tended to have an ideological bias, particularly before the passage of the Refugee Act of 1980. Before 1980, refugees in the U.S. were defined as coming from communist countries and from the Middle East. There was no other definition of a refugee, but there has been a long evolution since then. In terms of the material decisions made, I think we can say we have been increasingly satisfied with the procedure.

As I was saying in response to the previous question, our concerns have to do with what happens at the port of entry—it is not always transparent—and with the problem of detention, because persons are detained in large numbers together with common criminals all over the country, and in a manner that is also not necessarily transparent. Those are the two areas that my counterpart in Washington has been working on the most.

The Chair: Thank you. I wonder if the chair could be permitted a question, because we're going to be going.

Judith, first, I wanted to obviously thank you very much for your presentation and that of your colleagues. I think you will note from the number of questions and the time we've taken that obviously what you've provided us with has been of great importance to us. You've given us a road map, as it is, with regard to what other countries are doing, in your experience, and I think that has been most useful.

• 1030

I want to get back to where you started from. As you know, we talked a little bit about public confidence. I think we would all agree that's key in order to make sure we continue to have a fair and generous sort of compassionate refugee policy. Our minister has indicated that we want to make sure that the front door is always open to those who are legitimate.

Some of my colleagues are talking about smuggling and trafficking, and so did you. The criminal activity that seems to be prevalent—albeit the victims are those people who are in fact being used as pawns or as currency—is the back door that we want to make sure is closed.

I want to ask you this, because the smugglers, the snakeheads, and the people who traffic in people are becoming the de facto agents of who in fact can come to this country. I'm a little worried about the fact that the very people who should be deciding who comes to this country, be it in another country or be it in this country, are our people from Immigration, NGOs and so on, but that now it's the traffickers who are in fact picking and choosing who they want or whoever can afford to pay them the fee. Whoever can in fact sign that contract for work will get their special permission to come to this country.

The criminality aspects obviously bother me. I don't want the criminals to decide who those 12 or 15 or 50 or 500 people who come to this country are, because they're picking those people. Obviously, we're not having any input. That contract must have....

Are you troubled by that? I know you talked about preventative measures and everything else, but we have to be able to isolate the criminal activity that exists. Those people who have in fact become agents of people will choose the lucky people who get to come to Canada or any other country, so how do we make sure that doesn't happen?

Ms. Judith Kumin: Mr. Chair, just let me say that I feel a bit guilty that I've eaten up the time of other witnesses.

The Chair: No, we were going to twelve o'clock. It was always planned that you would take at least about an hour to an hour and a half and that we would then move to Ms. Jackman and so on.

Ms. Judith Kumin: Perhaps in answer to your question, I would start by saying that of course many more people come to Canada legally as immigrants each year than the 30,000 or so who come as asylum-seekers. Legal migration continues to be the main channel. I do understand your concern that criminal groups may have taken hold of this parallel procedure to some extent, but I don't think the majority even of asylum-seekers who come to this country are coming as the victims of criminal groups.

I think it's important to repeat that we think the procedure for determining who is in need of protection and who is not in need of protection remains fundamentally sound. We think there are some adjustments that could be made to it, but it's fundamentally sound, so we should avoid the temptation to throw the baby out with the bathwater.

The tackling of the organized crime element has to be done on a state-to-state level. There really is very little that can be done by one state alone. There is certainly virtually nothing that can be done by humanitarian organizations.

I was quite shocked to hear one of my colleagues from the International Organization for Migration recently say that the business of trafficking in persons has become so attractive and so lucrative because the penalties are so few. If you traffic in drugs, you can be put in jail for the rest of your life in most industrialized countries, but if you traffic in people, the penalty is really quite low.

The Chair: Yes, and we'll obviously be looking at that.

You also said that for a lot of this, international solutions are required, including international definitions and international procedures. In what you just talked about it's state to state, but I think there is also a great need internationally. Obviously the United Nations would play that part of being able to come to grips with this phenomenon that is ever-increasing.

I wish you and your colleagues, Mr. Lyndon and Mr. Tezier, well in your work. Thank you very much for coming and for providing us with a great deal of information. It has been most useful, and we'll do it again.

To our other witnesses, we will be back. We have a vote at 10.45 a.m. We should be back here at 11 o'clock, which gives us an hour to deal with Tom Clark and Barbara Jackman.

Thank you. We're suspended.

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The Chair: Order, please. From what I understand, the interpreters are not getting the signal, but they are in terms of the recording. I don't believe we need interpretation at this point, and while the technician is coming, I think we can resume from the standpoint of at least the taping, because most of the translated version will be done when it's transcribed and so on.

I think we will begin, Ms. Jackman.

Ms. Barbara Jackman (Individual Presentation): I wanted to invite you to actually ask some people who have been through the refugee process to come to speak to you. I did that a number of years ago with clients of mine because the committee invited me to find some refugee claimants. They came and spoke to the committee.

I think it's very important for committee members to understand the human scope of this problem. If you have questions about why people are undocumented, ask them. There are all kinds of people who have been through the process in Canada and who I'm sure would love to come and tell you about the problems with the process. That's one point.

The second point is that I have some difficulty with this thing about Canada being a soft touch. From what UNHCR said this morning, it's clear that we're no different from most other countries, but I see this as a red flag to criminals, to terrorists, and to everyone throughout the world to come to Canada. It's irresponsible to announce to the world that we are an easy mark. I have some concerns about that when we really do not differ from other countries.

The third thing is in regard to the undocumented persons. There may be more of them now, but it is not a recent problem. There was a study done by the UNHCR at least 10 years ago, and the Canadian statistics at that time showed that 25% of the people coming in were undocumented arrivals. From my experience, for most people who go through the refugee system, their identity is clarified by the end of the process through other documents like birth certificates, driver's licences...things that show their identity.

The fourth point is in terms of delays and speeding up the process. The key delays are within the immigration department and the Federal Court. The Immigration and Refugee Board, from what I can see, has gone a long way towards speeding up the process. The real problem is the immigration department. For the 20 years I've been practising, they haven't known how to organize, how to be efficient, and they just get worse as the years go on. The Federal Court also suffers from the same kinds of problems. Either the Federal Court needs more judges or they need to have someone who knows how to manage their caseload.

The last point in terms of the points from this morning is the question of people coming from democratic countries. Too often we call “democratic” countries that commit egregious human rights abuse against minorities. I don't think you can consider that country, even if they have a vote, to be democratic. Some of the strongest claims are from people who are coming from so-called democracies.

With respect to speeding up the process, I wanted to say, first of all, that in the determination process I think you have to maintain both universal access, in a fair process, and humane treatment. I don't consider detention to be humane treatment. Europe uses a lot of detention practices. Antonio Cassese, who is a judge at the International Court of Justice, has done a documentation, like a book, on the problems. I think it points out the very serious dangers in terms of inhumane treatment, cruel treatment, for people if you adopt a detention policy as a way of handling people who come in and make claims.

I think there are positive things that can be done with repeat claims. I think you can move to a leave application, and not eradicate them completely, but make people show they have merit to bringing a repeat claim or to re-opening the claim they've already made—in writing. That's one way to get rid of all the repeat cases—by tightening it up.

The Immigration and Refugee Board could move to an alternative dispute resolution process. The appeal division is using an alternative dispute resolution process for sponsorship appeals and deportation, mostly for sponsorship appeals. The refugee division has not adopted it. It is a wonderful system. It is informal, it takes place within about an hour or so, and cases can be brought out of the system.

As for the concern about the strong cases being moved out of the system, often it's just a question of being satisfied that the person is credible. An alternative dispute resolution process resolves that kind of problem and I think could get out.... I know that on marriages at the appeal division it's 60% acceptance at the alternative dispute resolution without having to go to a full appeal hearing. That's one thing.

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Single-member panels instead of two-member panels is an obvious option. I think you will find a lot of resistance unless the government cleans up the appointment process. Merit appointment is what people have been saying needs to be done. For years the government—this government, the last government, it doesn't matter which government—has appointed and still appoints on patronage. It's not right, given the decisions that have to be made.

I think it's a good idea to consolidate all of the risk assessments under the convention against torture, the post-determination claim on “risk from country” condition. I don't think you should add in the humanitarian and compassionate factors there. I think what will happen if you add in humanitarian is that we will have what we had in the early seventies, when there was a general humanitarian appeal to the Immigration Appeal Board. You will end up with a huge backlog. There are many humanitarian cases that are not related to risk. Leave those in a process separate from the risk process or you'll bottleneck the system. It won't work if you add general humanitarian factors to the refugee process.

The last thing on the refugee determination process is that I think board members can give more decisions from the bench instead of waiting four or five months for reasons. I don't think the immigration department should be doing eligibility. I think people should prepare their documents, get them to the board, and skip immigration entirely. The department is the reason for delays.

We have clients who fill out their PIFs—they have to do that within a very short period of time—and then sit there for nine months, ten months, or a year until the immigration department gets around to reading the form to decide if they're eligible. It's not right. I don't know why they can't get their act together, but they don't.

I think immigration is top heavy with management. You could probably go a long way by getting rid of a few managers. You could save a lot of money and put more front-line officers on. My understanding from one of the union officials is that the ratio of staff to managers is three staff for one manager. That would not be acceptable in any private business. That may be one of the reasons immigration can't be efficient: the managers are meeting all the time instead of getting any work done.

People are now paying large amounts of money for processing, thousands for some families. It hasn't resulted in better processing, either inside Canada or overseas.

I think the other thing that should be done is that a criminal and security check should be initiated as soon as people come into the country. What's happening now is that people are found to be refugees and then they do the checks; three years down the line they find out that the person shouldn't have been allowed to stay because they already had status in one of the European countries or there's a criminal problem or a security problem. The difficulty is that the longer people are here, the more claim they have to being allowed to stay. They have Canadian children. They're settled and established. You can't blame them for wanting to stay if they're allowed to stay for a long period of time. I think there has to be an efficient system that moves people quickly.

With regard to the Federal Court, I think you have to appoint more judges. The court has to learn how to manage its caseload. Again, with the Federal Court, as with the refugee board, appointments should be based on merit, not political patronage.

There's a tradition in Canada that courts are supposed to be based on merit. That tradition does not extend to the Federal Court. We have judges that are appointed purely because of their political associations, and I'll tell you, they mess up the whole process. The reason cases get so complicated is that they're such bad judges—some of the judges in the Federal Court are bad judges. They shouldn't be judges if they don't know the law; they're political patronage appointments, not based on merit. As far as I'm concerned, it is appalling in a country like Canada to have courts where the judges are appointed on the basis of their political connections.

With respect to deterrence, there are a number of points. I think we should go to special programs or designated classes. If we don't go to special programs or designated classes, there should be a more flexible humanitarian and compassionate process. What happens is you have a movement of people, like the Tamils from Sri Lanka, for example. The Tamils come in. They're settled here. They have family members at risk. There is no way to bring those members into Canada other than the regular stream—even close family members. They help smugglers bring their relatives to Canada because they have no other option when their family members are at risk.

Where you have a settled refugee community, there should be programs to allow them to bring relatives, who are not going to end up on welfare but who you know will successfully establish even if they don't meet the regular requirements because of the situation in the country that they...[Technical difficulty—Editor]. ...one daughter or two daughters left behind. They come into Canada through smugglers because the Canadian embassy over there won't allow them to reunite with their five brothers and sisters and parents in Canada. That kind of thing should not be happening.

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The other thing is, I'm not sure how many people bring their family class members, but we have cases where people are recognized as refugees, and four, five, or six years later, their children are not in Canada. That is not acceptable. It shouldn't be that people have to get a smuggler to bring the children into Canada in order to reunite with them.

Canadian officials in some of those places are arrogant, rude. They couldn't care less that the person in Canada has been recognized as a refugee. They don't respect the decision. They think the person is a fraud, so they won't process family members. There's a terrible problem in terms of overseas reunification.

With respect to removals, I think you could probably go a long way toward making the removal process work if you did something like the UNHCR was suggesting this morning. If you have fair procedures, if people have a final case review before they're left, you wouldn't give us a leg to stand on in court.

The Federal Court was not giving people stays while their cases were considered on humanitarian grounds. Over a period of time, we'd be getting stays a lot more successfully because Immigration has been so arbitrary and unfair to people.

For someone who has been here five or six years who reports voluntarily.... We had a case where the guy was here nine years. Then they try to remove them before the humanitarian interview has taken place. The Federal Court gives a stay. Once you're in the Federal Court process, it's years before you get out of it.

If Immigration would just get their act together, do the interview and do it in a fair way, that would be it. It's done; it's over with. As it is now, we're going from one court to the other, running around just to have a case looked at. That's all they're asking for. If they're turned down, they may have to leave Canada, but at least give them a fair process before they leave Canada.

Mr. Justice Robertson of the Federal Court of Appeal said in a recent case—and I brought the case and gave it to Margaret Young:

...the Minister's insistence that deportation be carried out forthwith effectively short-circuits the leave application process. Elsewhere, I have stated my frustrations with respect to the Minister's refusal to allow persons to have their day in court.... One would have thought that the Minister would pursue deportation only in the clearest and most compelling cases.

That was a case where a man was supporting his wife and child. His wife had breast cancer. They lived here since 1989. The immigration department was trying to remove him before his case was considered. That kind of stuff shouldn't happen.

I think there are other things that can be done in respect of removal. You should be reviewing policies in terms of what kinds of people are being prioritized, like going after that man who was supporting his sick wife and child, Canadians. That's not proper prioritization, as far as I'm concerned. He had no criminal record. He was working steadily.

What should be reviewed also is the deportation of long-term residents. Some of the people who are trying to resist and are going underground have been here since they were six months of age. They're being deported as adults because they have a criminal conviction. That's one of the reasons countries are reluctant to give documentation to people.

I'm not going to name the countries, but I know several consulates in Toronto that will delay and delay giving documents for people because it's not fair. If you come here at 2 years of age and you're 35 years old and you have a wife and three kids, Canada should not be deporting you even if you have a criminal conviction.

My understanding is that in Europe they have moved to a system where if people have been in the country for a certain length of time or have been in the country from a certain age, they don't remove them even if they're not citizens of that country. That's largely because of the European support on human rights and their approach to deportation of long-term residents.

Canada used to have what they called “domicile”, a protection against removal if you were here a long time. I'm not saying we should go back to it, but we should go to a system that's fair. If someone comes in as a baby, he shouldn't be deported as an adult.

The Chair: Thank you, Ms. Jackman.

Tom or Tim, on behalf of the Inter-Church Committee for Refugees.

Mr. Tim Wichert (Representative of Mennonite Central Committee, Inter-Church Committee for Refugees): I'm going to speak actually on behalf of the Inter-Church Committee. I have the short straw. I'm also here as a board member of ICCR. I represent the Mennonite Church.

As you may know from the submission we made, ICCR consists of 12 different national church groups in Canada. So we represent a fair number of immigrant and recent refugee communities amongst our congregations, as well as working for them in a number of different ways.

I'd like to highlight the three main points we mentioned in our submission and try to pick up on some of the issues that arose this morning with UNHCR as well as now with Barbara Jackman.

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First of all, the issue of international standards is something that ICCR has been increasingly involved with in the last number of years, monitoring what's happening at the international level, the executive committee of UNHCR, different UN committees. I think what we need to do is maintain or look at that perspective when we're having this kind of a discussion, because Canada is seen as a leader in some of those communities.

Seeing, for example, the brochure that Andrew Telegdi has put out, it's easy; we'd like to represent or present Canada as a world leader when it's convenient for us to do so, so that we can say, yes, Canada accepts more refugees than any other country in the world per capita. Yet now, on the other hand, if it's convenient, we also want to say, well, now perhaps we're getting too soft; because we're seen as such a good and welcoming country, now all these unsavoury folks are coming here. Suddenly we interpret it as being soft.

But I think we do need to maintain perspective and continue to see ourselves as a world leader, and in that context, rather than measuring ourselves against what other countries are doing, look at the kinds of standards we've agreed to and have said we would try to live up to. I think those are the higher standards we must continue to strive for.

In that context, then, if we look at some of the various covenants and conventions we have listed there in our brief, I think one practical way we can work towards that is to try to incorporate some of those provisions into our domestic law, for example, regarding the provisions in the convention against torture.

Moving down in that section, we touch on the Inter-American Commission on Human Rights and some of our involvement over the years with them, suggesting there that this kind of organization, or a representative from that kind of organization, may help also give a perspective in terms of the standards we're striving for and how other countries are trying to achieve those.

Also in that section, we make reference to the International Organization for Migration and to a recent meeting we held, where an IOM representative came and made some very useful suggestions and comments to us. In the context of that discussion, the whole discussion of trafficking, for example, we found that two main things we need to focus on are dealing with the causes, on the one hand, but on the other hand, remembering to protect the victims as well.

I think what we've seen in the Chinese migrant stories is that the folks we're focusing on and saying, let's get rid of them, are often the victims. What we need to do is take an approach where we're actually trying to protect the victims.

The U.S. has actually done some interesting work in that regard, for example, of folks brought into the U.S. under false pretences to work in the sex trade. They're looking at some of those on a case-by-case basis to consider granting them residence, for example, again protecting victims, taking that approach.

The second main point we made in our document was the notion of treating people equally, striving for clarity and consistency in our procedures.

For example, Barbara talked about the issue of removals. Our understanding is that over the last number of years the number of removals has remained fairly consistent at about 8,000 per year. But our cases and the folks we're involved with indicate there's basically very little or no rhyme or reason as to how those 8,000 folks are chosen. So who gets chosen? Is it going to be criminals, women and children, single mothers? Is it going to be those, as Barbara mentioned, who voluntarily report after eight or nine years because they're asked to do so, and they're the easiest targets so we deport them? What are our criteria, and who are the priorities in terms of removals? What we're looking for and encouraging is greater clarity and consistency in that area.

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Finally, on the last point—the notion of process—there's the suggestion that it should be expeditious and finite, but fair. We've talked a lot this morning about abuses of the system, and I think the kinds of abuses we'd like to highlight—the kinds we've mentioned in our brief—are the kinds that Barbara mentioned. These are the folks who are essentially in limbo because the system has failed them. Some of them are granted refugee status but they're not granted landing, for a variety of reasons. They're the folks who fall between the cracks. We've had some cases where people are told that they're being landed, but they never receive the documents and they're never able to be in touch with anybody within the system to confirm their landing and to actually make it official.

Those are some of the kinds of cases that fall between the cracks, and what we're suggesting here is that there's a finite period of time after which landing may perhaps be automatic. That could also include those under deportation orders who are long-term residents. Again, these are the kinds of cases that Barbara mentioned.

I think finally our concern is that as we move toward a greater concern about or emphasis on interdiction, we're essentially creating a fortress Canada, and we've heard that term used in the context of Europe—fortress Europe. I think what we're seeing as well is this notion of fortress Canada. What we're finding is that desperate people use desperate means to get here. If there's a poor, inefficient, and meaningless process overseas, for example, they're going to use other means, by hook or by crook, to get here.

So if you have the option of paying $10,000 to somebody to get here quickly or going to the local Canadian embassy, where it's going to take you at least three years to get processed, you don't really have an option. You take the faster option, in some ways the easier option. And that's what we're finding, that many of our cases, for example, on the sponsorship side, are taking at least two years. And some of those people, if they are in desperate situations and in urgent need of protection, just simply cannot wait that long.

Let me leave it at that. We've got another comment about the suggestion for an ombudsperson to help in terms of dealing with and processing complaints. If anybody has an interest or question on that, we can take that up. Otherwise, we thank you for and appreciate the opportunity to be involved in these discussions.

The Chair: Thank you both for your presentation and your patience. I'm sure we have some questions.

John.

Mr. John Bryden: I want to begin by observing that the average MP—as a matter of fact, I think every MP—probably sees more immigration cases than the majority of immigration lawyers. I don't think that any of the MPs around this table, or in general, really, are unfamiliar with the compassionate side, because that's something we have very direct experience with. So I'll leave that. I don't think the committee should be steered into that type of testimony, because we do know what we're doing on that, or we've had exposure to it.

Regarding the issue, however, that Ms. Jackman raised about undocumented refugees, the issue isn't undocumented refugees; it's undocumented refugees who deliberately try to avoid identifying themselves or identifying the airlines by which they came, who put barriers in the way of our knowing their identity, for very obvious reasons. I actually have a figure here that we got this morning. About 8% of refugee claimants—about 2,000 a year—are both undocumented and also refuse to cooperate in terms of identity or how they got there.

To me, that's the problem area. I would ask Ms. Jackman to address that. I'd ask you all to address that, because it's the thing that concerns me most. I believe we're talking about a slave trade here, and that slave trade is expressed in terms of people being persuaded to land, to not cooperate because it is known that they cannot be returned, that their chances of staying in the country increase enormously if they refuse to identify themselves. So tell me, how do we deal with that problem?

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Ms. Barbara Jackman: I don't know. Maybe it's the nature of my practice, but I've never seen that as much of a problem. I think your problem is that some countries will not take people back, documented or not. That's a bigger problem.

But I think with most people, at least in my experience, their identity is known by the end of the process. I don't believe the 8% figure. If they say it's 8% refusing to cooperate, they're probably including the people at the end of the system who will not make their own application for passports. Their identity is not in question, but they won't go and apply for a passport. I wouldn't be surprised if that 8% includes that number in it. It's not a huge problem, and I don't think it ever has been.

Mr. John Bryden: Well, the problem with...we'll give you the example of the boat people. It all revolves around the detention phenomenon. If they're arriving as a part of an international crime enterprise and they're headed to the United States or wherever for prostitution, they land in the country, they refuse to disclose their identity, and then you have the detention problem. You say don't detain them, because that's not a nice thing to do, but if we don't detain them what happens is they are scooped up by the smugglers and they're carried on toward their destination without the documentation.

So it is the essential problem. It is true that in your practice and my practice we don't see these cases. But it is the frontier problem we're trying to deal with, and to me it's the essential humanitarian problem. It's all very well to come here and say we must be humane to these people, but you are inhumane to these people as long as you allow them to enter the country, refuse to disclose their identity, and be part of a system that's going to enable them to stay and eventually be drawn into prostitution. So how do you solve the problem?

Ms. Barbara Jackman: I should clarify. I'm not opposed to detention in cases where it's necessary, and I think a lack of identity is one of the grounds for sure for continuing a person's detention. So in those cases, it may be justified to detain. At least with the boat arrivals, you know what country the people came from. My understanding is that even if they don't identify themselves, you know they came from China. The problem may be whether China takes them back. I'm not sure it's a question of identity; it's more one of Chinese policy.

Mr. John Bryden: Just in passing, it's not the boat people who are necessarily the problem; it's the people coming in by airlines.

Ms. Barbara Jackman: For sure there are some who don't, or who say they're from countries different from where they're from, but there are ways of testing that, for example, someone who speaks the language from the country they say they're from. In fact, we've done this to prove identities. For example, people from the Ogaden didn't have documents when the Ogaden refugees were coming in, so we would get people from the community who they didn't know and were not related to who could test them to try to figure out if they were from there to confirm that they were who they said they were. There are ways of testing people.

Mr. John Bryden: Could we go on to the other witnesses on the same subject?

The problem with the refusal to disclose identity is at the initial stage. It's not whether they're identified later; it's the initial stage that makes it impossible to turn them around forthwith and send them back.

Do you have any comments on that? We heard this morning that there is a trend in other countries to deal with this by having officials go on aircraft to check for the documentation, and if they have destroyed the documentation, they turn them back. That's one choice. But how do you face up to the other choice, which is that if you do allow them to land and they're uncooperative, they get to stay under our system?

Mr. Tom Clark (Coordinator, Inter-Church Committee for Refugees): First of all, I just want to make an observation that I'm not in police or detective work, but it seems to me that putting them into detention or turning the boats around, whatever we might feel morally about it, is doing nothing to address the trafficking problem. It would seem to me that at the very least, letting them loose and watching where they go would do far more to solve the trafficking problem. This is a non-police observation.

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Secondly, as Tim mentioned, following the protection of the “individual first” approach, the U.S. is considering developing incentives, because obviously you can encourage a person to come forward because they can get landed status or something in return for cooperating with the authorities to deal with the trafficking issue, which is what we want to get at. Locking them away really may make a few people feel satisfied, but it doesn't deal with the problem. That's the sort of measure the U.S. is taking.

The third measure is to note that these people are coming to our country not because there's only somebody out there who has an interest it, but because there's somebody in here who has an interest in it. It would seem to me that if we follow the High Commissioner for Human Rights' approach about looking after the migrants first and dealing with the real problem, then we would put a little more energy into measures that would try to deal with the people on our side, whether they're in the U.S., Canada, or Mexico, who are bringing the people here for their work opportunities. That's just an observation.

Mr. John Bryden: You raised the issue of protecting these people. We heard testimony with respect to these trafficked human beings, where they were offered false identities. They were offered to be landed and given false identities so that they could stay in Canada and wouldn't have to go on into the prostitution trade. The general response has been to refuse it. The reason why they refuse it is that they fear retaliation against their families at home. Indeed, one witness even said the standard method of retaliation is to cut off a finger of the individuals who have made it all the way to New York, or wherever it is they're going, and send the finger back to the families. How do you respond to that? Let's try to be practical here. You suggested protection, changing identities, but we're dealing with ruthless criminals here.

Mr. Tim Wichert: That's a hard one to respond to.

Basically, when we talk about cooperation or being uncooperative, what's interesting is that we often see it in terms of being uncooperative with our authorities or our system, but in fact they're being very cooperative or are trying to be very cooperative with the system under which they've come in, i.e., through the smugglers, through the ones taking advantage of them. That could perhaps be the only system they know, and it's the system that they are in effect trying to cooperate with because that's what they're being told to do.

I agree with Tom to some extent. How can we find incentives to get them out of that system, that process of violence, that process of intimidation, if you will? There is some onus on us to educate them upon arrival in terms of letting them know what the right system is, what the right process is. If we simply summarily try to deal with them on the plane or on the boat, we don't in effect try to take them out of that illegal groove they've been put into, which is the only one they know.

Mr. John Bryden: I'd just like your thought—

Ms. Barbara Jackman: It takes cooperation with the countries involved. It may be more difficult with China, I don't know. But if the families are at risk there, they could be relocated in the other country, too. You try to take away the fears on the part of the person through a coordinated effort on both sides.

Mr. John Bryden: This is my last comment, but I would appreciate your comments on it because this is essential to the struggle to understand what to do here.

It's lucrative. What is it, something like $7 billion that is at stake here? And it's violent. As far as I can see from all the testimony I've heard, the only thing we can hope to do is destroy the lucrativeness of that trade. To do that is to summarily turn back people who are uncooperative in the first instance and who lack documentation. Can you think of any other thing we can do? Surely the root problem is to attack the lucrativeness of the trade. That's the only way we can get at it.

Ms. Barbara Jackman: Prosecute the smugglers properly. Give them long jail sentences.

Mr. John Bryden: How can you find them?

Ms. Barbara Jackman: The ones on the boat are part of it.

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Mr. John Bryden: No, we know we're dealing with international crime cartels that are well out of our reach. They're out of the reach of even the Americans. This is James Bond stuff.

Ms. Barbara Jackman: The real danger is that you throw the baby out with the bathwater. You don't want to destroy the whole system because of a few boats. I realize it may be a problem that is going to grow, but the task is to try to protect the system for genuine refugees.

The Chair: Ms. Jackman, I wonder if I could ask you a question, because I know you talked a little bit about our courts and obviously about how the system is not working and so on, either at the IRB or the court level. I'm just wondering about the basic question of the role of the Canadian Charter of Rights and Freedoms, especially with the Singh decision in 1985. I think it caused much of the concern with regard to the efficiency and timeliness of the problems in the refugee determination system. Do you have any comments on that? There are some who would argue that perhaps the charter should not be applied for those who in fact arrive in some way, shape or form that is not in the conventional sense, so to speak.

Ms. Barbara Jackman: The way the Federal Court has interpreted the charter, it practically doesn't apply to persons who aren't citizens anyway, so I don't think you need to worry much about it. If it does apply, they use section 1 to justify not following it. In Singh, the Supreme Court did not say how to do the process; it just said you have to do a fair process. Government doesn't have to structure it in a way that is going to take a long period of time. It doesn't mean you have to have these big, formal proceedings. You can have more informal ones, like I was talking about with ADR. That still complies with Singh.

So I don't think Singh is the problem. I think the problem is at the front end with Immigration and at the back end with the Federal Court. You know, if I apply for a leave in Federal Court, it's five months until I find out if leave is going to be refused. If it's going to be granted, I might not hear for a year. That's way too long.

The Chair: Your first comment says you don't believe the Charter of Rights and Freedoms applies to someone unless they're a Canadian citizen. Did I hear you correctly?

Ms. Barbara Jackman: There are a number of cases now in the Federal Court in which they have explicitly said—in fact, we're going to take one to the Supreme Court now—that because you're not a citizen, you don't have a particular right under the charter.

The Chair: We've heard testimony that essentially says that once a person lands, it doesn't matter whether or not they're a citizen, a refugee or someone else, they in fact have the rights under the charter.

Ms. Barbara Jackman: I can give you the cases: Ahani, McAllister, Chow, Suresh. They all explicitly say you don't have the freedom of expression right. Non-citizens cannot speak out. The court says that because they're not Canadians.

The Chair: I remember speaking out, and I wasn't a Canadian in 1960 or 1963 or something like that either.

Ms. Barbara Jackman: Well, I wouldn't do it now if you weren't.

The Chair: We didn't have the Charter of Rights and Freedoms, and they didn't throw me out of the country.

Ms. Barbara Jackman: Well, they're doing it. They're throwing people out.

The Chair: Yes, but I find that bizarre. What's your opinion?

Ms. Barbara Jackman: Well, I'm glad you find it bizarre. We're going to the Supreme Court on that issue.

The Chair: Well, one, I don't believe you.

Ms. Barbara Jackman: I'll provide you with the cases.

The Chair: I know, but I hadn't heard that before. In fact, I've heard the opposite. I'm just asking what your opinion is. Once anybody lands on our soil or Canadian territory, should the charter in fact prevail?

Ms. Barbara Jackman: Yes, the charter should prevail. That's always been our opinion. I acted for the churches in Singh in putting that view forward.

The Chair: Is that the churches' position too?

Mr. Tom Clark: I would hope it was.

Ms. Barbara Jackman: The rights are contextualized.

The Chair: Of course.

Ms. Barbara Jackman: You don't need the same due process that you would need to deport. To deport someone is not the same as a criminal trial. They contextualize those rights. The danger is that they're not recognizing the rights.

Mr. Tom Clark: Can I add something to that? We do work together, and we sometimes disagree.

I just wanted to add that we've worked quite a bit around the view that because the kinds of people we're dealing with are people with an international status, and because more than one country is invariably involved in things like removals or what have you, it's the international rights that are a better reference point. A lot of our work has therefore been to get international rights, international standards.

The sorts of things that Barbara alluded to about the European court—which sets a kind of standard across state boundaries and says this is how that system should work—are the kinds of things we've been working for. Some of that's growing, so we would like to see—and Barbara's working at it—the application of our Canadian charter to these people to reflect what the current international position is on the matter. In fact, that's why we're trying to make the linkage into our domestic law.

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Ms. Barbara Jackman: Can I give you a good example, though, of the problem? The Baker case was just decided by the Supreme Court of Canada, in which the Supreme Court said if you're going to deport parents, look at the interests of their children. It doesn't mean the parents get to stay, but you have to look at the interests of children if they're Canadians or if they're refugees. It's common sense. It held up many cases over a four- or five-year period because the immigration commission wouldn't do it. If at the front end they just did it, that's it. They complicate things because they resist fair treatment.

The Chair: I know that lawyers complicate things an awful lot too.

With regard to the prosecution aspects, obviously, there are solutions to this, and most of the solutions, I think, are bilateral or international. I think the United Nations' presentation this morning talked a little bit about that.

With regard to trying to separate the victims, which I would agree should be our first preoccupation, these people who are being trafficked in obviously are trying to get out of where they want to get out of in every way possible.

The problem I have is that the snakehead, or the person involved in trafficking or smuggling, becomes the de facto agent for deciding who should get refugee status. That bothers me, because they get to select based on how pretty they are, how much money they're going to get, what they're prepared to do when they come to the country of their destination, how long they're going to work, and so on. I feel rather uncomfortable about giving that kind of message.

I agree that prosecution is the best deterrent in terms of getting to those people who are exploiting human beings and being able to shut that down. I'm not a detective or a policeman either, and I don't know what's the best way to do it. I can only tell you from recent cases I've read, even the ones that have come through Walpole Island and London, that people have been found with phone numbers of certain people in New York City and so on. Obviously, there are an awful lot of investigative things that will have to go on.

But we have to at least send the signal that if you want to get into this country or if you're seeking refugee status from where you are.... Obviously, we have to improve our system so that people can access in a fair way our consulates or our people in those particular countries without having to be subjected to going to people who trade in human beings. I know this is probably not only our problem here. It's happening all over the place.

Does the Inter-Church Committee have any ideas as to what we can do collectively? If Canada does it alone, it won't necessarily mean we can fix the system.

Mr. Tom Clark: Let me take the first point first—your discomfort. I can't help you except to share it. But in a way the argument that the people who come are the people who happen to run into a snakehead and get trapped in some form of persecution is similar to the whole refugee problem anyway. In some sense Canada is forced to pick up people because another government decides to persecute them. So to some extent we're always in that kind of uncomfortable position where we're being asked to pick up on something that somebody else has done. I can rationalize it, and it makes me feel a little bit better. I'm just passing it on in case it makes you feel a bit better.

The Chair: But I'm just thinking that if Joe Blow in China, as an example, can demonstrate that he can deliver 400 or 500 people to Canada and successfully get them through the system, that obviously is going to raise his status over there. He'll get another 600 or 800, because all of a sudden he'll develop the reputation within the crime world that this guy is a good bet, so pay the $15,000.

How do we get out the message that Joe Blow is in fact...? If we could find out who he is or his people here or over there and convict them so that people don't get the impression that the easy way into the country is through the back door of the refugee determination system.... We want them to come through the front door, if that's where they need to come.

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Ms. Barbara Jackman: One of the answers is not just our answer. I think you have to make the trafficking an international crime, so that even if the guy is in New York, he can be prosecuted there for what he's doing in Canada. The whole point of an international crime is it doesn't have to happen in your territory in order to prosecute.

Mr. John Bryden: It's not within our power to decide internationally.

Ms. Barbara Jackman: No, you can't. Obviously, it's something that the international community has to take up.

Mr. Tom Clark: I think there isn't a short-term answer. As Barbara has indicated and as Judith Kumin mentioned, the governments are working on protocols that will do what Barbara is saying and will allow prosecution. Canada also had discussions with the Chinese to see if they could address the problem. I think there's not one quick fix, but on the other hand, there are a number of things that can be done together. One of them is to make it easier for people to come here legally. Certainly, that was one of the suggestions that came up in our workshop, and that's also something that other governments are looking at.

Mr. John Bryden: May I comment, Mr. Chairman?

The Chair: Sure.

Mr. John Bryden: I have to pick up on that point. In my relations with new Canadians and immigrants, I find that most of them are very much opposed to people who are gaining entry by illegal means. They have very little sympathy for people who resort to illegal means. I just want to make that point.

I'd like to crystallize the situation as I see it and get your responses. Ms. Jackman, you said that it's essential to protect the system. Now, it seems to me that the choice is to protect the system and fail to eliminate slavery—and we agree that this is slavery we're dealing with—or eliminate slavery and compromise the system. Which would you choose?

Ms. Barbara Jackman: I'm not sure that you have to choose one or the other, but I—

Mr. John Bryden: Well, you do.

Ms. Barbara Jackman: —think the system has to be protected. It's the same as in the criminal context of sending one innocent person to jail. It's not worth it.

Mr. John Bryden: We're talking about slavery. As far as I can see, we cannot protect the system as it stands and not eliminate the problem. We might be able to ameliorate it a bit with some of your suggestions, but we are still going to have the snakeheads taking advantage of the system you're protecting. On the other hand, if we slightly compromise that system, and compromise it in a way that's befitting to the values of Canadians.... We weren't a bad people before the charter, and we're not going to be a bad people whether or not the charter exists. Our immigration authorities do have the ability to show compassion when you give them that discretion. Nevertheless, if you compromise the system, you would take a few of those rights out of that system, but you would be able to all but eliminate this problem. So what is the choice? How would you do it? I address that particularly to Mr. Clark and his colleague.

Mr. Tim Wichert: I don't think it needs to be an either/or situation. We have a system in place wherein we have tried to maintain and pursue international standards, and to a large extent we're doing a good job of that. I would hate to see us eroding some of those rights and some of the good points of that because of this larger problem. I agree it's a problem, but we have to be able to find other ways of addressing that.

It if involves tinkering with the system, for example the overseas processing, which we've touched on, how can we let people know that it's a cheaper and better option to go to the embassy or high commission to apply to come to Canada rather than to pay $40,000, $50,000, or $60,000? It has to be a cheaper option, even with the right of landing fee and those costs, which make it expensive as well. But let's let them know that it's a cheaper and better option to do that.

Mr. John Bryden: I'm not suggesting that there aren't things we can do to help the problem. I'm asking you to choose what is most important: to protect the rights that you see as necessary in the system or to eliminate the slavery.

The Chair: I thought, Mr. Bryden, that the witnesses said they don't agree with you that a choice needs to be made, and that's their opinion.

Mr. John Bryden: Fair enough.

The Chair: If that's your answer, you want to stand by that, unless you want to add to it.

Mr. John Bryden: Thank you, Mr. Chairman.

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Mr. Tom Clark: My position is a simple one. Protecting rights is the bottom line, it seems to me. From protecting the rights, you earn a much better position for addressing the problems. That's what I tried to show.

The Chair: Ms. Jackman, Mr. Clark, and Mr. Wichert, I want to thank you all very much for your patience in waiting for us. I hope John and I have covered off some of the questions my other colleagues would have asked. I will offer, though, that if they want to ask you some very specific questions, they might be able to write to you.

Your submissions are in the record and our discussions today are in the record. Some of the suggestions you've put forward have been very useful and constructive, and hopefully they will be taken into account when we write our report.

Thank you once again.

Mr. John Bryden: That was a very good way to end that little round.

The Chair: We are now adjourned until next week.