[Recorded by Electronic Apparatus]
Tuesday, March 26, 1996
.0935 
[English]
The Chair: Good morning, dear colleagues. We'll begin.
The Standing Committee on Citizen and Immigration, pursuant to Standing Order 108(2), is continuing study of the draft agreement between Canada and the United States on refugee claims.
I would like to welcome as our first witness, Mr. William Bauer.
You may begin when you're ready, and you have ten minutes.
Mr. William Bauer (Individual Presentation): Thank you, Madam Chair.
Perhaps I could give a little bit of my background, because you may wonder how I wandered in here as a witness and what my qualifications are.
The Chair: Please go ahead.
Mr. Bauer: I was a public servant with the Department of External Affairs, which is now Foreign Affairs and International Trade, from 1952 until 1989, when I resigned. After that, after a short interlude, I became a member of the Immigration and Refugee Board. Just so there is no misunderstanding about whether or not I was a patronage appointment, I was a member of the board for nearly four years, at which time I indicated well in advance of the end of my second term that I did not wish to be considered for reappointment.
During my time in External Affairs, I served in many countries that were experts at persecution, that were experts at preventing people from leaving their countries freely or indeed returning to them. That included Poland in the Stalinist days and North Vietnam.
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I worked on the intergovernmental committee for European migration as Canada's representative in the early 1960s. This, as you probably recall, was a group of the developed countries that arranged for the migration of displaced persons - who later became refugees, technically - mainly to Canada, the United States, and Australia.
I was ambassador to Thailand in 1975 and alerted the Canadian government to the problem of the Indo-China refugees, which was starting to build up at that time in Thailand. I was involved in that program throughout my time in Thailand, until 1979.
I was our ambassador to the Conference on Security and Cooperation in Europe. In that role I certainly was considered to be the head of the strongest delegation on human rights and the rights of people to leave their countries and to be reunified with their families. So I'm not unaware of the problems of persecution in the world or the problems of genuine refugees.
My time on the board persuaded me that there was a growing problem in the field of refugee determination, and I'm now writing a book on the refugee determination system in Canada. It's background. It's how it works, what its problems are, how it relates to the huge problem of migration in the world as a whole, and how the problem of massive world migration threatens to overwhelm the refugee determination system and discredit it in the eyes of the populations that have made it possible so far.
Having said that, you're examining the Canada-U.S. agreement on shared responsibility for asylum-seekers. I've read it as carefully as I could on very short notice, and I've also read some of the positions that have been put forward to you by various groups.
Most of the positions that have been put to you I am familiar with and I've heard before. I have one disadvantage. Most of the people that have appeared before you represent something. The National Immigration Law Section represents immigration lawyers in Canada. Their business is representing refugee claimants and people who want to emigrate to Canada. The success of their business depends on the success of their representations. Some of them make millions of dollars a year. They are a lobby group. I am not a lobby group. I don't have the facilities of a lobby group behind me, and I don't have the position of a lobby group.
I've been familiar with Professor Hathaway over the years. He has a very precise position, and he puts it forward very articulately and with masses of references. He's an academic. I don't think he's ever sat in a hearing room. He studies the law. He studies the precedents. He studies court cases. He lectures, and he does a good job at it. But he has a point of view, and I'm very familiar with the point of view. It's essentially to broaden the definition as much as possible in all the countries that are receiving refugees or refugee claimants.
The Canadian Council for Refugees obviously is openly a lobbying group for hundreds of organizations, I suspect, various ethnic groups, and people who have an interest in increasing the inflow of immigrants and refugees.
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I'm just me, and you'll forgive me if I don't marshall all the resources and arguments that some of your previous witnesses have marshalled and that, quite frankly, in some cases I observed, were a little off the point and appealed, to a certain extent, to emotion rather than to facts.
I'd like to put this agreement in the context of the practical problems that have increasingly arisen in the field of migration and refugee policy.
No one knows for sure, but most of the experts I've read estimate there are probably 100 million migrants moving in the world today. Of those, probably about 20 million are what the UNHCR would call refugees, and most of them are under the aegis of the UNHCR, which is of course funded by countries like Canada to provide food, housing and medical care. They're mostly across the border...the Rwandan refugees are a fine example of this. No one can ever forget the horrors of the camps that they're living in in Zaire and the constant problem that is confronting them when the Zairean authorities say, ``We don't want you here any more; we're kicking you back into Rwanda. You may be Hutus and you may be slaughtered, but we don't care. We've done our job.''
During the 1960s and 1970s the Thais and the Malaysians hosted camps of refugees from Laos, Cambodia and Vietnam, but they made life very difficult because they didn't want these people settling permanently and they put a lot of pressure on the western countries to absorb the refugees who were sitting in these camps, sometimes for years on end. They did a very good job.
When you talk about refugees, you have to remember that we haven't had this concept as a precise legal concept for very long. Canada only ratified the 1951 convention eighteen years after we negotiated it, in 1969, and that was two years after the protocol of 1967, which did little more than expand the convention to people who had become refugees after 1951. But this was the first time there had been an international regime that dealt with refugees.
In addition to the 25 million who have been internally displaced, who are still in their countries but who can't live in certain areas because of civil war, because of persecution.... This would apply to the former Yugoslavia. The displacements there are well known to you. Many of them are in Germany, Canada, France, everywhere in Europe and North America, but a tremendous number are within the former Yugoslavia and probably will never go back to their homes. In some of the republics of the former Soviet Union, people have been displaced internally.
That's what I would call refugees in the broad or in the narrow sense, in the UNHCR sense. In addition to that there are probably 60 million or 70 million people moving in the world looking for economic improvement, a better life, but who are not even true refugees within the broadest definition of refugee in international law. They're economic migrants. They are potential immigrants and the world has always known them.
I think this situation has started to create a crisis in the field of immigration, and it's quite obvious that many people in the world are using the refugee determination system as a means of getting around the immigration process. Maybe 16% of the immigrants Canada takes are chosen by the Government of Canada on the basis of what the Government of Canada from time to time decides would make a contribution to Canada's society or Canada's economy. The rest are family class and refugees.
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What it means is that the nature of Canada is being determined by people other than Canadians, in a sense. That's something I'm not here to discuss. This is a political decision governments have to take on the basis of what they feel public opinion is concerned about. But the sheer volume of population movements and the tendency of would-be immigrants to pretend to be refugees, with the help of massive organizations.... The triads in Hong Kong, the Mafia, a number of international crime groups, are moving hundreds of thousands of people illegally, for vast amounts of money. Many experts argue that this trade is more profitable now for the international crime groups than the drug trade is.
People come here from Fujian in China. They pay $20,000 to $30,000 to get here. They're indentured slaves for the rest of their lives: working in a restaurant, working for gangs. Their families back home have to provide more money.
These are not casual movements. These are organized movements.
The UNHCR...the high commissioner herself, I think, has made it clear in a number of ways she is afraid that the refugee determination system, the refugee protection system in the world, is threatened. Governments in Europe, you know perfectly well from what you've been told here, are gradually tightening their controls, because their populations are beginning to feel they are the target of massive movements of people who are not refugees but who pretend to be refugees. I would argue that this agreement you're dealing with here - and I would say that after this introduction I'd prefer just to answer questions about it rather than to try to cover it all - is a very modest step, in my view, to getting around one particular problem we face here.
There are 450,000 outstanding cases in the United States - 200,000 or 250,000 from Latin America, not including 200,000 Salvadorans, who have been sheltered by the United States for the last ten years and who are being urged by their own government, which is supposedly persecuting them, to apply for asylum in the United States, so they can continue to send American dollars back home. The ones that don't get accepted in the United States may very well turn up at our borders, having been turned down. And believe me, these are claimants; these are not refugees, in most cases. They've been living comfortably in the United States and they can live safely in their own country now. There are another 150,000 from China, Eastern Europe, Asia, Africa. But 600,000 are waiting there, and those who are turned down are probably going to move on, and the one place they can move on to is Canada.
This agreement may make it possible to regulate that. But 600,000 people is just the first step, I feel. It hardly scratches the surface, given the situation we face.
I would say again, as I see it, the big concern of all of us should be to maintain the integrity of the refugee system, to maintain the integrity of the refugee determination system, and not to allow the opinion to develop, as it now is, that the system is being used and abused by people.
The Chair: Thank you, Mr. Bauer.
I allowed a bit of flexibility, because our third witness today will not be with us.
[Translation]
Mr. Nunez, you have ten minutes.
Mr. Nunez (Bourassa): Thank you, Mr. Bauer, for your presentation which did not unfortunately address the issue of the draft agreement.
.0955
You dealt only with general considerations and made a presentation which, in my view, was against immigrants and against refugees. Nor did you show much consideration for the legal profession. You think that lawyers have appeared here and supported certain principles for financial reasons. I think I know the legal profession; I myself was a lawyer for several years. However, I have never been rich.
As you know, not all the witnesses who appeared were lawyers, as there were other specialists, university professors, etc. You also know that there are many organizations opposed to this draft agreement, such as the churches. What charges can you possibly make against the churches in Canada and the United States? These people, both in Canada and in the United States, have the greatest moral credibility, and they spoke on matters of principle.
Unfortunately, you did not discuss the tangible problems raised by the agreement, such as the level of protection for refugees in the United States and in Canada. Would you not agree that the level of protection which the law provides for refugees in the United States is lower than that which is offered in Canada, and that the criticism made in this regard by previous witnesses is very justified?
Mr. Bauer, are you aware of the problems faced by the Haitian boat people, who were sent back even before being allowed to make an application and have their claim examined by the US authorities? As you know, there is a generally recognized principle under the Geneva Convention that everyone, including refugees, has the right to file a claim and that such a claim must be heard. However, this is not the case in the United States. Can you explain to us briefly the level of protection provided by the United States? In your view, is it adequate? Do you consider that the same level is provided by Canada?
[English]
Mr. Bauer: Mr. Nunez, I was not suggesting in any way that I dislike lawyers or church people or academics. I was simply suggesting, and making it quite clear - and it's obvious from reading their papers - they have a specific point of view. They see nothing positive in this agreement at all. Many of the arguments.... If there were time this morning I could go over the lawyers' brief and point out some of the things that are simply appealing to emotions and some of the things that are simply false.
That doesn't cast any discredit - I thought I made that clear - on people who present their brief in accordance with the wishes of their organization and their lobby. That's their job. I'm simply saying you have to take the arguments of interested parties who have a vested interest in certain results with a little care. That's all. I didn't mean to cast aspersions on anybody. And I'm sure the churches are also well intentioned.
You raised the question of the difference in the level of protection, that it's far lower in the United States than in Canada. I won't go into the Haitian case, because I'm inclined to agree with the United Nations High Commissioner that this is an abrogation of obligations, or could be, under the 1967 protocol. On the other hand, I also remember the fuss in Canada in the mid-1980s when only thirteen people arrived in a boat in Nova Scotia. It caused an uproar in this country that nobody ever forgot and in fact led to the introduction of massive changes in legislation. Now when you talk about tens of thousands....
I think you have to separate, Mr. Nunez, the question of how people react and how politicians respond to public feeling, and what is legal, what is not legal, what we would like to do, what we would not like to do.
.1000
My whole point is that if the people of Canada gradually get the feeling that they're being used by fraudulent claimants, then the entire system is endangered. Politicians have to respond to public opinion or they don't get elected.
I don't want that to happen, and most people who really believe in refugees, as such, don't want it to happen.
If you say that the level of protection in the United States is far lower than that in Canada, I answer that the United States has the second-highest acceptance rate of refugee claimants in the world. That's the first point.
Secondly, they have an extremely highly developed legal system. It is slightly different from ours, but refugee claimants have gone to the Supreme Court, just as they do in Canada, and decisions are overturned all the time. There are protections.
I hear constantly that the level of protection in the United States is lower than that in Canada. I would argue, Mr. Nunez, that the level of protection in Canada is higher than that in the United States, and it's so high that it's unbelievable.
We're a country, or a system, that's accepting - and the figures keep getting jiggled - in my experience, 80% of claimants who come before the Immigration and Refugee Board. They are determined to be refugees. I know for a fact that many of these decisions are taken for all the wrong reasons and are wrong.
Perhaps the fact that we have a higher acceptance rate is something that attracts fraudulent claimants to Canada, as well as genuine refugees. If that is the case, then Canada has to take steps to deal with that problem. Otherwise, we risk the entire system and those who are genuine refugees.
I hope that answers your question.
I would like to say that I take exception to the suggestion that I don't favour immigrants and I don't favour refugees. That's an unfair inference, and it's a personal insult.
[Translation]
Mr. Nunez: I made those comments on the basis of what I heard. Obviously, everyone is against abuses. The system must protect genuine refugees, there is no doubt about that. But how would this agreement make the system fairer for genuine refugees?
You said that the United States have the second highest acceptance rate for refugees in the world. I would just like to point out to you that the Ivory Coast took in 1.5 million refugees a few years ago. We're talking about a very poor third world country. The United States accepted only 2% of refugees from Central America when there was a civil war in El Salvador and Guatemala.
We are not facing a wave of immigrants here, and the Liberal government accepts fewer refugees than did the Conservatives a few years ago. Why do you think that we have to protect ourselves in this way through such an agreement? Why do you consider the problem so serious if today we are taking in fewer refugees than three, four or five years ago, before the present government came into office?
[English]
Mr. Bauer: Just briefly, I'm sure you know, Mr. Nunez, that more than one million Salvadorans have come to the United States in the last decade and a half. One-seventh of the population of El Salvador lives in the United States. To me, that seems like a quite high acceptance rate.
Mr. Nunez: Don't confuse immigration and refugee status.
Mr. Bauer: There are both. There are two million who've been there as refugees, who've been given shelter, and these are the ones for whom the Salvadoran government, which presumably they would say is persecuting them or would persecute them, is asking for asylum, in order to continue to receive remittances from the United States to the families in El Salvador. These aren't refugees,Mr. Nunez.
.1005
Zaire has received three million, but this is not through a refugee determination process and not through the choice of the people concerned. They fled to the nearest country where they could avoid being slaughtered. Whether in the Ivory Coast, Liberia, or Zaire...Kenya has taken Somalis, of course, but I think we're talking here about a system of determining who is and who is not a refugee. Obviously, people who flee across the boarder, fleeing for their lives, are refugees, but there is no determination process in those countries. The acceptance rate is 100% and they are also looked after by the United Nations High Commissioner for Refugees in their camps.
The Chair: Merci, monsieur Nunez. Ms Meredith.
Ms Meredith (Surrey - White Rock - South Langley): I want to get back to this agreement. I understand that your position would be one of supporting this agreement. I think you made some comment that it was perhaps not as strict as you would like to see it, but do you feel this agreement would bring some sense of control into the refugee claimants who come to Canada?
Mr. Bauer: I think theoretically it might discourage people who are turned down in Canada from going to the United States to make a second claim or people who are turned down in the United States from coming to Canada to make a second claim.
I have a basic philosophy I think most of us share. Someone who is fleeing persecution, fleeing to safety, grabs that safety in the first country he arrives at rather than shopping around to see which has better benefits or assessing, on the basis of what knowledge I'm not sure, which country is an easier country to enter. I think it would avoid this. It think it would avoid a situation where claimants can't get a hearing in either country. That's quite clear.
It has a flaw that I'm familiar with from my work on the board. Many people arriving at the border claim they have no documents. Some of them do because after they get refugee status they often go back with their passports to their country of origin on visits, and we know that. If they say they have no documents, then you have no way of checking identity. You have no way of establishing whether or not there are relatives, for example, which would kick in one of these exceptions.
A very large number of people arriving, certainly, at Fort Erie and Niagara Falls have no documents of identity of any kind. They arrive in the United States, sometimes legally, sometimes across the border at the south, and often through New York, San Francisco, or Seattle, by air from Europe and sometimes from another country where asylum is possible, and they say they have no documents, the agent took their passport, they had a false document and destroyed it.
At that point, the only identification of this person you have is the person's word. It seems to me that in theory you'd be able to ask if they have uncles and aunts or brothers and sisters, at least, or fathers in Canada. They would say yes. They may even be able to provide names. It's possible to arrange these things. It has been done, in which case, you're accomplishing nothing.
If the agreement were to work as it is - and, of course, as you know, it's only 600 in the first year maximum - and if the administrative arrangements are such as to make it reasonably effective, then I think it would help some claimants who at this point may not be able to get a hearing and it would deter those who do not have a genuine claim but who are trying wherever they can to get their story accepted, even an adjusted story. Or, and this might not work very well, it might help those who change their identity after a hearing in one country and then go to the other with a different identity.
It's a very complex business, and I think this agreement is well intentioned, but I think it has so many safeguards in it that it may not be as effective as many members of the committee and certainly the government would like it to be. I think you have to give it a year to see how it does function. I suspect it will be challenged in the courts here and in the United States. In fact, these things always are. It will take time to get working. It will take time to give us a chance to assess it. I would say it's moving in the right direction, but it has flaws that are not the fault of the drafting. That's the fault of negotiation, an attempt to lean over backwards to be fair and reasonable, I think. I have a feeling it may be taken advantage of, but it will accomplish something. Does that help?
.1010
I find it hard to say yes or no, because it's a very complex agreement. It has many exceptions and loopholes in order to ensure maximum protection. I don't want to leave the impression that somehow I don't want to provide protection for refugee claimants in the pursuit of their claim. I certainly do. But I also feel very strongly that you should not, in the process of providing that protection and reassurance, make it possible to evade the intent of the law.
Ms Meredith: Perhaps the easiest way to clarify one of the charges against you, that you don't want to see any refugee claimants come into Canada...when you were on the IRB, in four years you obviously heard a number of cases. Did you turn all of your cases away? Did you give negative results in all of your cases?
Mr. Bauer: No, of course not. I'm not sure. The lawyers periodically get the results for each member, so you could ask them what my acceptance rate was. I didn't know it myself. I would say I was positive on probably a third of the people who appeared before me. There were a number who - how shall I put it - did not fit precisely the definition contained in the act. What they experienced was not persecution, as the term is interpreted by the courts or the act. But I was positive on them, too.
There are special circumstances in which you realize that someone who may not have been persecuted in the legal sense still, for reasons that have to do with centuries of discrimination in Asia, in Europe, and in Africa, would have a very hard time going back. Although it might not amount to persecution even then, you felt that you were not there to simply enforce the law with a cold heart, that you were there to make exceptions where exceptions are reasonable and where they don't betray the intent of the legislation and of the convention.
I think the 1951 convention is one of the glories of international law and international caring. It was a situation at that time.... We did not know what a refugee was in Canada. Refugees were encompassed in the total immigration system, and they were heard on a case-by-case basis. There were injustices committed, as everybody knows. People were turned away in the 1930s who shouldn't have been turned away. Quite frankly, there was a vast public opinion against any immigration at a time of depression, unemployment and hardship. Governments didn't dare make exceptions.
We have passed that stage now. Even if there is a total turn-off of immigration, there will never be a total turn-off of refugee intake, because we have in good faith ratified that convention and the protocol. We will carry it out, I'm sure. I want that to continue. This is why I feel we have to be careful that we don't give ammunition to extremists on either side to take advantage of it negatively or positively.
No. I think about a third would be the right answer to your question, and I think my record shows that I am not anti-immigrant or anti-refugee.
Ms Meredith: Thank you.
The Chair: Ms Minna.
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Ms Minna (Beaches - Woodbine): Thank you, Madam Chair. I want to briefly get back to another aspect of what you mentioned earlier on in your presentation. You perhaps didn't mention it directly, but you alluded to it. You have mentioned a number of times public confidence, opinion or feeling towards the whole system of refugees and the fact that this agreement may help maintain the integrity of the system. Can you tell me what you mean by that and how you see that happening?
Mr. Bauer: When I talk about the integrity of the system, I'm essentially saying the system is designed and staffed in such a way that those who would cold-bloodedly use it as a means of evading the normal immigration procedures, or sheltering terrorists and criminals from prosecution, use it as an easy way to get into Canada.
Generally, there is a fairly large group of high-profile cases where people have abused the system and been accepted as refugees; for example, the wife of General Aidid in Somalia. This man has killed more people, tortured more people, destroyed more of Somalia than any man, except Siyad Barre. His wife obtained refugee status because she would be persecuted. She and her children went on welfare in London, Ontario, and then travelled back to Somalia for six months to spend time with her husband.
This is something about which people read in the paper and ask, what are we doing? Do we have no way of detecting this sort of thing?
The minister of justice of Somalia, under the old regime, is an accepted refugee in Canada. Yet as minister of justice he must have been responsible for the deaths, imprisonment and torture of thousands of people. That was well known. When the case came before the refugee board, one member gave a vast set of reasons why this man could not be a refugee. As you know, anyone who has committed crimes against humanity, or against the United Nations, is excluded from the operation of the refugee convention and is deported. This was a very persuasive case, but one member just didn't care and went positive. That was it. That was all there was to it.
There was a recent case in London, Ontario. I know the case; a friend of mine sat on it. She had a wonderful story from Colombia about how she was pursued and tortured and her husband was shot. In the end she received a package of cocaine from her husband after she achieved refugee status. She is now spending two years in jail. The judge told her she was obviously no refugee; she was likely sent here as a courier and a receiver of drugs.
Ms Minna: I understand these sensational stories that you're talking about. Whether it is Canada or the United States, it is almost inevitable, given the number of refugees who come, that sometimes you end up with some cases that slip through because security checks are not done by CSIS or whoever at the time they arrive at the border, but eventually they are identified and hopefully we eliminate them.
I'm talking more about the overall system as opposed to the sensational cases you are citing.
Mr. Bauer: I just mentioned a few cases in the public domain. I think there is a general feeling...certainly there were, within the Immigration and Refugee Board, a large number of members, who I respect, who felt the system was failing and the way it was administered was not ensuring that justice was done. I can't speak as accurately as the members here, but I certainly have the feeling the system doesn't have the confidence of people in Canada who are detached and who pay any attention to it.
You end up with anecdotal evidence, I realize. It is very difficult to do much more than infer. But I think if you look at Europe and what has happened there over the past five years, you have at least an indicator of the trend of public disbelief that develops when masses of people turn up, all of whom are considered to be refugees or claim to be in one form or another, but who are not.
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I think any population begins to feel under pressure and reacts emotionally. This is happening here. There is a general feeling that something is not quite right about the system and it could get worse, as it has in Europe, with the result that almost all the European governments are tightening rather than loosening up.
The French, who have a tremendous reputation in history for receiving refugees or giving asylum, are becoming tougher than anybody else in Europe because of political pressure. I feel it's a trend in the developed countries that's going to proceed further if we don't take some steps to make sure the system works fairly and with integrity.
The Chair: Thank you. Mr. Dromisky.
Mr. Dromisky (Thunder Bay - Atikokan): Thank you very much. I have two statements or questions and they're both related. The comment was made that the United States has a different acceptance rate than Canada has and that there's a great difference. Could you make a comment about that. Are they using different criteria or processes, or are they being much more selective? What is it?
Mr. Bauer: That's a very difficult question. To a certain extent, I would prefer to say ours is higher than theirs because we have built in so many safeguards, including one whereby for a negative decision to be taken both members of the two-member panel have to agree, but for a positive decision only one member has to agree. Until very recently, and probably for most countries now, if a negative decision is taken, the member has to write the reasons for it in a way that will stand up in court. If a positive decision is taken, no one has to do anything.
Human nature being what it is, I think we built into the system so many guarantees that, in terms of administration and tribunals, tend to work in favour of positive decisions. I won't go into the question of individual biases for or against, but there is also that problem. I think the appointment system has some responsibility to bear for this.
Our system is the most open and positive and accepting in the world and we're known for that. That is what I could explain, why that is the case, rather than why the Americans are only the second greatest acceptors. I'm sorry.
Mr. Dromisky: That's okay, I accept the answer.
You talked about individual biases, but could a nation be biased as well? I'm getting back to this act. The vast majority of refugees land in some port in the United States before they come to Canada.
Mr. Bauer: Refugee claimants.
Mr. Dromisky: Claimants, I'm sorry. A great number of them do. If a nation has a policy that is in a sense biased and the United States is going to be the first to deal with these claimants before we get them, it's quite possible, in light of the time clauses that are in this act - the 48 hours for plane and 10 days by land - they could delay and reject people we might normally accept.
So in a sense, from the way I see it, the United States has a tremendous amount of control here. They could determine who is going to settle from these large numbers on the North American continent without any say from us. This is the way I see it.
Mr. Bauer: I don't think it works that way, sir. They have a backlog, as I said, of 450,000 cases awaiting hearing. They don't detain these people. They're free in the society. At this time I think they can get permits so they can work. They have all the advantages of a landed immigrant at this stage.
I know for a fact that very often United States missions abroad issue visas to various countries' nationals, which allow them to transit the United States and come directly to Canada. They make it in 24 hours from New York. There's an established pipeline run by church groups that simply picks people up in New York and deposits them in Tonawanda or one of these places. Then lawyers come over from Niagara Falls and Fort Erie and take their basic essentials.
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Unless someone is on the wanted list, a terrorist or a criminal or something like that, if the guy says ``I claim refugee status'', the Americans take his essentials and he goes. Many don't turn up for hearings when the hearings are scheduled. That's one reason they have a big backlog.
I'm not sure of the recent figures, but probably two million or three million undocumented people are wandering around the United States now. They're not all claiming refugee status, but many of them did. The controls are practically non-existent.
So I don't think anybody is in any danger. No one will refoule a claimant. The United States, under international law, cannot send, say, a Rwandan back to Rwanda. That cannot be done without a hearing, without determining whether or not the person actually is at risk of persecution. So I don't think that's a great risk under this agreement.
Certainly it wouldn't work the other way, because this is a two-way agreement, as I understand it. It's not just people coming into Canada; it's people going into the United States. And there are many of those, who come here, who make a claim, and then try to get into the United States and make another claim. I know that.
[Translation]
The Chair: Mr. Nunez, you have five minutes.
Mr. Nunez: Thank you. You mentioned a few specific cases, a few "sensational stories", as they were referred to. However, as I myself was a refugee and immigrant, I must point out to you that I am very familiar with this area. You never mentioned the enormous contribution made by refugees to Canada and the United States. You do not see anything positive in this regard. You ignore the fact that Canada and the United States were built by people from other countries, who suffered persecution in their country of origin, etc.
I do not know if you are also aware that today there is greater mobility of capital, goods and services, something which all rich countries like Canada and the United States are in favour of. This has happened more recently in Latin America. Canada and the United States are exerting a lot of pressure to ensure that investments will be protected. Therefore, they sigh treaties. A bilateral agreement between Chili and Canada will be signed soon; we signed NAFTA, and that agreement is to be extended. This makes a major contribution to the well-being of Canada and the United States. Millions of jobs are created here. Companies are now making larger profits outside Canada and the United States. Why should we put up so many obstacles when dealing with refugees, genuine refugees? Why do we have this contradiction between capital, goods and services on the one hand, and individuals on the other? Why do we have these obstacles? How do you justify them?
[English]
Mr. Bauer: I don't think I want to justify it. I agree with just about everything you've said,Mr. Nunez. I probably come from immigrant stock myself. I obviously was not here originally, and I'm not English and I'm not French. I know the contribution legitimate refugees and legitimate immigrants make to this country. I also know the contribution illegal people make.
I have no quarrel with that. I wish, quite frankly, you would not attribute to me opinions that I haven't expressed and that I don't hold.
[Translation]
Mr. Nunez: Madam Chair, I had asked for a copy of the views expressed by the UNHCR to the Canadian and American governments. I think it is essential if we are to study this agreement and draw up our report. I would like to know what the situation is regarding my request, which I have made to this committee on two occasions.
The Chair: Mr. Nunez, we have answered your request on two occasions, explaining that steps have been taken. That is all the committee can do. Can we now continue with our witnesses?
Mr. Nunez: I wish to stress this point because it is absolutely essential to obtain the said document on the draft agreement, which was sent by the UNHCR to the Canadian and US governments.
The Chair: Do you have another question for the witness, Mr. Nunez?
Mr. Nunez: Yes. You say that there are 20 million refugees in the world. I don't know where you obtained that figure, but according to the Canadian government document, there are 23 million and the number is increasing.
.1030
As regard the UNHCR, the agreement does not give it any role. Do you think that the UNHCR should have a role in this future agreement, so as to provide at least some assurance to those people who do not have much faith in this agreement, but who do believe in the work being done by the UNHCR?
[English]
Mr. Bauer: As I understand it, the vast majority of Canadians, and certainly every Canadian government, have believed very strongly in the work done by the UNHCR, and they still do. They make large contributions to the UNHCR to assist her in her work. As I understand it too, during the course of the U.S./Canada agreement, which in a sense has taken years to develop and negotiate, the UNHCR was consulted at every step of the way.
The UNHCR has an office here in Canada. The UNHCR representative is free to attend any refugee hearing in Canada, is in constant touch with the refugee groups, with the Canadian government, with officials. I think the UNHCR has had a major role. I'm not sure what the UNHCR might do other than what it's doing now.
One has to be aware that throughout the world the question of sovereignty is much talked about. Most governments like to retain sovereignty over their own affairs, and one of the most important of their own affairs is who is and who is not admitted to their country. No country is about to abandon to the UNHCR total decision-making power over immigration, or even refugee determination. I think that's going to be the case for many years to come, because sovereignty, as you know, is a very precious commodity.
The Chair: Mr. McKinnon, please.
Mr. McKinnon (Brandon - Souris): From time to time in the House we've had references made about the IRB and the manner in which it has reportedly, at least, conducted its business. Just gauging my question on your comments today about how it functions, did I detect that perhaps you feel we have too many safeguards built into the system and we should have a review of that in light of the concerns you expressed about persons of questionable background still being able to achieve a status of some kind here in our country?
Mr. Bauer: One small point of clarification. Although I did give some examples in response to a question, I'm not suggesting that everyone who arrives and defrauds the system, if I may say that, is a terrorist or a -
Mr. McKinnon: Nor did I get that idea.
Mr. Bauer: No, exactly. There are many people who do use the system to evade the normal checks and controls of the immigration process: health checks, the personal suitability checks, and all that. That perverts not just the refugee system but also the immigration system, which takes in only a small proportion of immigrants anyway.
But on this, yes, if I may say so, I made some general remarks about the problem when I appeared before this committee a year ago, on March 14. I have written about it, and as I said, I am writing a book.
.1035
There are problems. There are profound problems, and although I don't think any of us would ever deny a claimant all the protection and recourse that is there, I think to a certain extent.... Perhaps this is because the Charter of Rights and Freedoms is so broad and does apply to everyone who sets foot in Canada. The guarantees are so thick on the ground that it's very easy to delay and, in the end, to stay as an immigrant even though you really aren't a refugee.
There are many reasons for this on the judicial level, on the administrative level, and on the appointment level. To be perfectly frank, it'll be a few months before I come to a conclusion as to what improvements might be made, because it is so complex and such an emotional subject.
I think it is weak. I think it is accepting too high a proportion of the people who do make claims unjustifiably, and I think changes should be made. At this moment, I am not sure which changes would be most effective and which would be politically realistic, quite frankly.
But it's a well-intentioned system that is designed to solve a problem but perhaps went way too far and created others in another direction. That's my honest opinion.
The Chair: Any more questions on the government side? Mr. McTeague.
Mr. McTeague (Ontario): I have just a brief one, Mr. Bauer. Given the study, how do you see the harmonization having an impact on the faults - perhaps positively with respect to the concerns you've raised about the IRB and the process itself - as far as restoring, if you will, to some extent its integrity in the eyes of the public?
Mr. Bauer: My own feeling is that perhaps the results of this agreement, if it goes into effect, will not be very obvious to the public eye. I think it's quite right. The spectacular cases perhaps have a greater effect than the day-to-day operation. I'm not sure that many of the results of this particular agreement are going to show in the public domain. It's going to happen at an administrative level.
As I said, I'm not sure that very many cases will be affected for a whole range of reasons, which are intrinsic to the entire system. I think it's an important first step, as I said, and I think it shows an intent on the part of the government to improve the credibility of the system and in some ways to improve the position of refugee claimants. I know from what I've heard from some of the people before you and from what I've read that this may sound rather odd. But I think it does provide better guarantees for people who, for one reason or another, might not get a hearing in either country.
I think it's no more than a first step and a very modest one. Again, it has all the earmarks, if I may say so, of the system I was talking about. It has so many hedges, guarantees, protections, and exceptions in it that it's watered down to about 10% of its possible effect. But I wouldn't criticize it or suggest that it shouldn't be pursued because of that. I realize that one does have to test these things as it goes along, and one can't take drastic measures in an area that's so politically sensitive as this and where the implications of unfairness are rather horrendous for the individuals concerned.
I hope that answers your question.
Mr. McTeague: It does. Thank you.
The Chair: Thank you.
Ms Meredith, you have the last question.
Ms Meredith: Thank you, Madam Chair.
I want to go back to this agreement, and I'm a little concerned that, although you say it's a good first step, you find it's very modest and it's very much watered down. You feel that any more drastic steps would find greater resistance, and yet we have had more than a few witnesses who have basically said that this agreement goes too far and should never see the light of day and that Canada should not sign on. But what you're telling me is this agreement basically isn't going to do a whole lot to the issues of concern, not only to front-line immigration officers, but to the communities I have in my constituency that are coming in on a regular basis asking me how the government can allow this to continue. I'm talking about the ethnic communities themselves, They are horrified by what they see within their own communities.
.1040
Do you not feel we could toughen up this agreement somewhat, and if you see that there might be some areas, what areas would you suggest that we could make a little more solid?
Mr. Bauer: I wouldn't like to second-guess officials and ministers who have spent years negotiating this and who are aware of what the traffic will bear.
If I were to hit just one thing in the agreement that I think makes it most vulnerable, the exceptions in section 3 of article 6 are very broad. On immediate family members, I know people have complained that you should use the extended family, but that would just about throw the whole thing out the window. Immediate family who have lawful status are not ineligible to pursue refugee status, have had a refugee status claim granted on the merits by that other party...I think you're edging into a family reunification clause rather than a refugee determination one. I think you're subtly shifting the colour of the process. Then, again, subparagraph (ii) of paragraph (a) is ``one of his or her close family members who''....
I've negotiated a lot of agreements in my day and I know that it's a fool who rushes in to say, if I were negotiating that, I would change this, this and this. These things have a context and an organic integrity that is affected by both parties to the agreement or some of them...all 35, I recall. You have to work it out so that it's workable in the first place, and if you put in a lot of things that are arbitrary or too tough, then it won't receive public acceptance. If you put in things that are too elaborate and difficult, then you can't administer it and it'll fall through lack of your ability to implement it on the ground.
So I'd rather not, if you don't mind, comment on the draft agreement itself. If when we're sitting down for a whole day going through it clause by clause - and it is a very tightly drafted agreement, it's all interrelated, and one part of it affects another part - then you could perhaps. But I have enough confidence in the ministers who've been involved in it and the officials who have been involved in it and what I've read of it to feel that, as a first step, you can't really expect much else, but you can't really or you shouldn't really expect less than is already there.
Other than that, there's no point in having an agreement at all, which is perhaps, if you'll pardon my saying so, what some people actually want the result of this to be.
The Chair: Thank you, Mr. Bauer.
Colleagues, I'd like to table the first report of the subcommittee on agenda and procedure of our committee. You have a copy in front of you. Is it agreed?
Some hon. members: Agreed.
The Chair: Thank you very much.
Ms Minna: If I could interrupt for a moment, I would also table another document, which is a public document now, I presume. It's a letter written by the UNHCR in response to their appearance in front of the committee, so it's very directly tied to what went on with their time here.
I'll just read parts of it and then I'll table the document with you, if I can.
The Chair: Please, go ahead.
Mr. Nunez: Can we have a copy?
The Chair: Yes, of course. It will be distributed to everyone.
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Ms Minna: It's in both languages, so we can copy it and give it to everyone. I'll give it to you in just a moment. I happen to have just one copy.
It says:
The article titled ``Canada-U.S. Refugee Plan Slammed'' that appeared 20 March took a lot of journalistic license in directly linking my comment: ``a person should not be sent back to a torture chamber'' with the draft agreement between Canada and the U.S. regarding refugee claims. ....
The draft agreement does not deal with persons who flee the U.S. in search of asylum in Canada or vice versa. The draft agreement deals with responsibility-sharing between Canada and the U.S. by ensuring that applications of refugee claimants coming from third countries are properly examined in one or the other country. UNHCR is not opposed to such re-admission agreements provided that full account is taken to safeguard the protection rights of refugees.
As I have clearly pointed out at the Committee hearing, re-admission agreements already exist among many European countries (eg: 1985 Schengen and 1991 Dublin Agreements). Furthermore, I should like to add that UNHCR's Executive Committee adopted a conclusion in 1993 stressing: ``the usefulness of measures to promote the prompt determination of refugee status in fair procedures, and recognizes the advisability of concluding agreements among States directly concerned, in consultation with UNHCR''.
It goes on to say:
The drafters of the Canadian-U.S. agreement have in many respects included provisions to safeguard the basic rights of refugees, though some aspects which may give rise to problems are still under discussion. I was pleased to note that the Honourable Minister was favorably considering a monitoring role for UNHCR in implementation of the agreement.
This is a communiqué issued by the UNHCR by Mr. Makonnen in response to the media reports as a result of his presentation to this committee.
I'd like to table that document and share it with our colleagues. I think it's important to straighten the record as to where the UNHCR sits on this issue.
The Chair: Are we agreed?
Some hon. members: Agreed.
The Chair: Since we are on tabling, our third witness, from the Carnegie Endowment for International Peace, was unable to attend. He sent a copy, which I believe all of you have - it is also translated, if I'm not mistaken - of the ``Summary report of a Symposium on the U.S.-Canada Memorandum of Agreement on Cooperation in Examination of Refugee Claimants, December 11, 1995, Carnegie Endowment for International Peace, Washington, D.C.''
Is it agreed that we shall also table this as part of the record of the hearings?
Some hon. members: Agreed.
Ms Meredith: May I get a translated copy?
Mr. Dromisky: May I, too?
The Chair: I will now ask the witnesses from
[Translation]
I would now ask Mr. Jean-Michel Montbriand and Mr. Jean L'Heureux, representing the Association québécoise des avocats et avocates en droit d'immigration, to come to the table and begin.
[English]
Mr. Jean-Michel Montbriand (Chairperson, Association québécoise des avocats et avocates en droit de l'Immigration): Thank you, Madam Chairman. We thank you for inviting us to testify on the subject of the draft agreement between Canada and the United States for dealing with refugee claims.
A few words concerning our association: We are a provincial association reaching over 150 practising lawyers in immigration and refugee and citizenship law. Back around 1990, I guess, all of us were part of the CBA, but we have detached ourselves from the CBA and formed a provincial organization, for practical reasons, and also for customary reasons, as most of our associations in the province of Quebec are affiliated with the Barreau du Québec, which is the equivalent of law societies in other provinces in Canada. So, as a matter of custom, our association is now affiliated with the Barreau du Québec, instead of the Canadian Bar Association.
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[Translation]
However, all our members are lawyers. Our association is in direct contact with all the associations of immigration lawyers in Canada. There is one thing I can say to you straight away. Nobody in the Canadian legal community makes millions of dollars representing refugees.
I do not doubt that some of my colleagues working more for business immigrants might produce that sort of income, but nobody in Canada earns those amounts of money representing refugees.
Together with the CCR, university professors, groups such as Amnisty International, we also consider rightly or wrongly that our basic purpose is not to increase the number of refugees coming to Canada or accepted by Canada. Our purpose is simply to ensure that fundamental principles of justice are respected, that genuine refugees are given the protection they deserve and that those not entitled are refused such protection, but always in accordance with criteria and procedures based on the fundamental rules of justice.
As you would no doubt agree, the CCR and Amnesty International have no financial or other interests in seeing the number of refugees increase.
However, we do not intend to repeat what many of the witnesses have already stated to you. As for the lack of factual or other justification for this agreement, it should be noted that under international law, there is no legal principle requiring a refugee claimant to make his claim in the first country he is crossing which is a party to the Geneva Convention.
There is no principle in international law preventing someone from claiming refugee status because he might have lived in another country before arriving in Canada. Nor is there any principle in international law to prevent someone from claiming refugee status because such a claim has already been rejected in another country.
You may agree or not agree on the lack of criteria preventing people from claiming, but that is the way the Geneva Convention is drafted. It has been in effect since 1951, and it provides clear and precise situations where a country can, although a party to the Convention, decide not to hear a claim, decide not to grant refugee status or decide to exclude somebody from such a status.
As you know, it is clear that people who have committed war crimes or crimes against humanity, or people who have already been accepted by another country as refugees, cannot claim refugee status in Canada. These are recognized principles in international law.
However, even if a refugee is not required to claim refugee status in the first country which is a party to the Convention, country that he is crossing when fleeing his country, his conduct may in fact be examined by the Canadian legal authorities, who subsequently consider his claim. The fact that he did not make a claim in a third signatory country is one of a number of criteria, and I stress that it just one of a number, used to assess the validity, credibility, and plausible fears of the individual.
There is no principle in international law which presumes that a refugee or a refugee status claimant - if he is a genuine refugee - will necessarily make his claim in the first signatory country that he crosses. Nor is this a principle in assessing the evidence.
The Federal Court of Canada, which was set up long before the IRB, and has been ruling on issues of this type for a few decades, has recognized in a number of decisions that a refugee claimant might have reasonable grounds for not making the claim in countries which are parties to the Convention, and which he might cross when fleeing his country on his way to Canada.
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We should not try to reinvent the wheel. We should not try to justify disagreements on the basis of presumed principles of international law which do not in fact exist. We should look at the facts clearly: The purpose of this agreement is quite simply to sharply reduce the number of people able to reach our borders so as to claim refugee status. That is its sole purpose.
If the purpose of this agreement was really to examine the reasons claimants might give to explain why they did not make their claim in another country, it would specify them, because in some cases they are valid reasons. I would remind you that the Federal Court of Appeal of Canada has recognized this on several occasions.
Therefore, if this agreement really sought to stop abuses, at least it would allow those people who might have spent a few hours too many in the United States while in transit to explain and justify what happened. In the way the agreement is written at present, that will not be possible.
Furthermore, under this agreement, it will not be possible for a claimant to try to explain to any Canadian forum that in his particular case the United States cannot be considered a safe country.
To quote a recent example, I would mention the case of people from Chile who fled that country after the fall of the Allende government and thought that they could not obtain a truly impartial hearing in the United States because, as was obvious and clearly shown subsequently, the US government had at least partly supported the coup against Allende.
Many refugees from El Salvador, who had fled their country during the 1970s and the 1980s and saw the United States spend hundreds of millions of dollars every year to help the military regime repress its opponents thought, and legitimately so in my view, that the United States did not constitute a safe third country where they could make a claim for refugee status.
No doubt there are some examples of cheating which take place in Canada's refugee determination system. The same thing happens in our tax system, our welfare system and everywhere else.
The previous witness stated that there may be too much protection given to refugee claimants. I would point out to you that there is also another side to the coin; the Department of Immigration has many mechanisms available to it to request that an individual's refugee status be revoked if it was obtained through fraud, lies, false evidence or deliberately incomplete evidence.
This right was given to the Department in 1989, and so far as I know, to date it has used it on only one occasion, despite the widely publicized cases to which the previous witness referred.
You were also told that when a decision was favourable, the members of the Convention Refugee Determination Commission were not required to state their reasons. The Act states that those parties, including the Minister, can demand, not request but demand the reasons in writing for all favourable decisions, and the Minister can obviously challenge each and every favourable decision handed down by the RRB.
Therefore, as you see, the Act provides mechanisms to stop cheating. There is no doubt that if the intended purpose of this agreement is to restore the confidence of the Canadian people in our refugee determination system, then the Department, which is responsible for enforcing the Act, should first exercise the rights it clearly and unequivocally has in the Act. It should challenge any favourable decisions on refugee claims which, in its view, are not justified.
We should not, as has been the case with war criminals from the Second World War, wait 30 or 40 years before acting.
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There are mechanisms available at present. If the members of this committee consider that there is clear cheating taking place, they must remind the Department that it should exercise its prerogatives.
I would like to finish by referring to one point which we made on the last page of our brief recommendations. If this agreement between Canada and the United States is to be signed, it would certainly be desirable to include as possible grounds for exemption, the presence of members of an individual's immediate family in one of the two signatory countries.
We would also respectfully submit to you that it is essential that the specific character of Quebec in the Canadian political context be recognized, together with the fact that French is the language of Quebec and that refugee claims can be heard in full in French. Quebec is the only place where that is possible in Canada and, I would venture to say, in North America. As you no doubt know, that is not possible in the United States, where claimants even have to provide their own interpreter.
Every year, hundreds of refugee claimants choose Quebec as their final destination because they wish to be able to live in French, to receive advice from a francophone lawyer, and especially to be heard by francophone members of the RRB, to be assisted by a francophone hearing officer, in a context where there is a French documentation centre, etc. The Federal Court of Appeal has in fact recognized in the past that it was justified for a claimant to go to a country which spoke its language in order to have his claim heard.
As you know, Montreal is no longer what it was, particularly as regards international airports. For example, most flights from francophone Black Africa, from the Horn of Africa or even from Arab countries, now go to New York or other major American cities. There are no direct flights between Montreal and francophone Black Africa. You must recognize that reality. You must recognize that the vast majority of people have to go through the United States and, for countless reasons, they are not always able to meet the transition deadlines stipulated in the agreement. Language should be possible grounds for an exemption to this agreement, which may be signed between Canada and the United States.
Thank you.
The Chair: Thank you Mr. Montbriand. We shall now give the floor to Mr. Nunez for 10 minutes.
Mr. Nunez: Thank you very much for your excellent presentation.
I would like to say immediately that I agree with your final suggestion, that is that the French language should be considered grounds for filing a second application in Canada, and particularly in order to go to Quebec, as was my case. When I came here, I spoke a little French and I chose Quebec because it was a francophone society. As you said, that also applies to many Africans, Moroccans, Algerians, Haitians and some people from Latin America who speak French.
This is particularly important since, as you said, sometimes there are no direct flights between Black Africa and Canada. People have to go through the United States. Therefore, I agree fully with your suggestion, which was also made by the Canadian Council for Refugees in their brief. I think it is an excellent suggestion.
.1105
You said something very important. In international law, there is no requirement to claim refugee status in the country of first arrival. Do you think that this agreement could be challenged in Canadian courts as being in violation of the Canadian Charter of Rights and Freedoms, or that it could be challenged before other international bodies on the grounds that it is in violation of the Geneva Convention or other international agreements?
Mr. Montbriand: I will refer only to Canada because I am not an expert as regards international law, or at least international authorities.
In Canada any possibility of challenges will depend largely on how this agreement is integrated legally into the Immigration Act. We think that will be very possible through paragraph 46.01(1)b), which is quoted in our presentation, used together with paragraph 114(1)s), which gives Cabinet regulatory power to designate a third country as safe and to provide that procedures will be established within an agreement.
We think that if this mechanism was used it would be abusive to designate the United States as a safe third country for all types of claimants, regardless of national or ethnic origin, or regardless of the group to which they belong within one and the same national origin.
It is impossible to exercise beforehand such a regulatory power providing a host of possibilities, eventualities and combination of circumstances. To say the least, it would appear to be an abusive regulatory exercise, and I would even say that, in accordance with the terms used by the Federal Court, this is an exercise of power which could be described as abusive and especially arbitrary if they determined beforehand situations which are not even known today. Who knows what the attitude of the US government will be one month from now as regards refugee claimants from such or such country.
It is often stated rightly or wrongly that US procedures are likely to change with the foreign policy of the United States. I think that it is relevant to point out that the agreement, unless I am mistaken, will be signed between the State Department on behalf of the United States, and the Department of Immigration on behalf of Canada. It is not the INS which will be signing for the US government. This agreement seems to contain or be characterized by a certain political dimension.
I imagine that that does not fully answer your question, but it is all I can say for the moment until we know the mechanisms of...
Mr. Nunez: My second question concerns the level of protection. I do not know if you are aware of the type of protection provided by the United States and the case of the Haitians who were intercepted on the high seas and sent back. Nor do I know if you are familiar with the new legislation before the U.S. Congress. What is your opinion on the level of protection given to refugees by the United States?
Mr. Montbriand: I believe that the facts are sufficiently clear to show that there is no assurance, in the immediate or distant future, that the level of protection towards various types of claimants will be adequate. Therefore, we consider this to be an argument in favour of either an independent organization to monitor the agreement, or the inclusion of a mechanism in the agreement as we suggest in our written brief.
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Such a mechanism would at least enable a claimant to make representations so as to show that he cannot obtain appropriate and equivalent protection in the United States, in view of the situation there or in view of his individual or national characteristics, or his origin.
It is impossible to foresee every possible situation. We have to provide a model enabling either the claimant to assert his rights, or a third organization to intervene.
Mr. Nunez: I am happy that you mentioned the establishment of a monitoring agency, something which is not provided for in the draft agreement. That is very necessary, particularly when we see the direction which U.S. legislation is taking with respect to the protection of refugees.
As you know, there is not any dispute settlement mechanism either. Every international agreement gives rise to disputes. A mechanism in this regard has to be provided.
Mr. Montbriand: In fact that worries me very much. I apologize for interrupting you. If there is a dispute or disagreement between two states, we have to consider what might happen to the claimant who inevitably would be on one side or the other of the border, and to what extent he could benefit from certain interim or temporary rights, such as welfare or even a work permit.
As you know, in Quebec the provincial authorities do not provide any financial assistance to an individual or bring him or her into the provincial assistance system until the person concerned has received his paper from Immigration Canada. From my understanding of the agreement, until the individual is recognized as having the right to make a claim in Canada, he will not obtain any papers from the Canadian authorities. From the point of view of the provincial authorities, he still does not exist and consequently will not be entitled to any assistance, except perhaps the charity of the churches.
Mr. Nunez: Which is still available fortunately.
The Chair: Thank you, Mr. Nunez.
[English]
Ms Meredith: I struggle with the information I have heard before and hear again, and this business of there being no international convention, no international precedence for this first country of origin for a claimant. Was there an international agreement prior to 1951 to deal with refugees? What is the problem with establishing a new agreement, a new relationship, with a neighbouring country? The fact that it didn't exist before certainly doesn't upset me, because I believe democracies are evolving organisms and we need change. I wouldn't be here if I didn't think systems need to be changed.
I don't like to say this, but I find it very humorous to hear a refugee who claims all this goodwill towards the countries that give asylum and who is working to break up this country. I find it horrendous to be sitting here listening to this.
Mr. Nunez: Are you trying to attack me?
The Chair: Mr. Nunez, please keep comments of that type in the House of Commons.
Ms Meredith: I would like to go on with this agreement. Your comments about these individuals who will be going from country to country without their claim even being heard, without the protection of a claim.... I'm sorry, but article 9 clearly indicates the process. There will not be refugees in orbit. They will be forced to be dealt with either by Canada or by the United States. I think it's very clear in this agreement. So I'd like you to tell me why you feel we should never make new agreements, why we should never enter new arrangements to create new international concepts in how we handle refugees and immigrants.
Mr. Montbriand: What I said is that you cannot, to justify this agreement, rely on a principle that doesn't exist in international law. That's the first thing I said. There is no such principle.
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I'm not saying sovereign states cannot discuss and make agreements between each other. I'm just saying please, to anyone who is saying that, don't try to tell us there is a principle behind that. There is none. It doesn't exist in international law. You might want to create one. You might wish there were one. But there is none.
That being said, I'm not against agreements between states per se. All I'm saying is that if there are going to be such agreements, these should include a mechanism of some sort to permit claimants at least to argue their case if they feel they should be permitted to make a claim in one country or another.
As it stands, the agreement treats refugees, refugee claimants, whoever they are, wherever they're from, all in the same way. I don't think this is right. There may be valid reasons not to permit someone to claim in Canada in certain circumstances, but there might also be some very valid reasons to permit such a claim, depending on each case.
As the act was voted in by Parliament in 1988 and came into force in 1989 - I'm talking about Bill C-55 - it's the first time in Canadian domestic law that we introduced the concept of safe third country. So when this act was voted in, it included a forum - it was an inquiry, basically - where a claimant could argue his or her eligibility to make a claim in Canada if it was denied to him. This forum was abolished in 1993 by Bill C-86, even though the safe third country concept was never adopted in practice in Canada. We believe the forum that was intended back then and that was never used, at least for the safe third country concept...that we should have something similar.
You can't treat refugee claimants in bulk. They're not all the same. They need to have a right to express themselves, as Mr. Nunez has a right to express his political affiliations. This is a basic principle in our Canadian legal heritage, I would say.
Ms Meredith: But this right is not denied to them by this agreement. They have the right to express themselves. There are exceptions. If they fall under exceptions, they are given time limits.
Mr. Montbriand: But there's only one.
Ms Meredith: If they want to make their claim in Canada, there's a recognized time limit for what it's likely to take them to get from A to B.
Mr. Montbriand: So if I miss the limit by one hour, I'm doomed.
Ms Meredith: I think that's a pretty weak argument, to be quite honest with you.
The Chair: Could we not have a debate, please, just question and answer.
[Translation]
Mr. L'Heureux, do you wish to add anything?
[English]
Mr. Jean L'Heureux (Association québécoise des avocats et avocates en droit de l'immigration): I might add something just on the specific example.
I was thinking of a case, for instance, of a Haitian immigrant who somehow arrived in Florida and did not really want to stay in the United States but wanted to come to Canada. From what I understand of this agreement, that person would have ten days to reach Canada. Otherwise he or she would be precluded from claiming refugee status in Canada.
I practise some immigration law in Montreal. From what I've seen, people who are claiming refugee status and who arrive in Canada, or anywhere, know very little about the country, about the laws, about the customs. I can easily imagine someone who wanted to.... For instance, the Haitian claimant who would want to get from Florida to Canada might find it very difficult to make it in ten days, especially if he or she has a family. I think this is one example of an arbitrary time limit that could cause deep prejudice. There are thousands that could be used.
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I don't think we're against change. I'm speaking here in terms of the association of Quebec immigration lawyers. I have less experience in this field than does my colleague, Montbriand, but I think there is a general unease about this particular agreement as being part of basically an anti-immigrant tide that exists presently in Canada and that's being appealed to through this legislation.
Ms Meredith: Are you also aware there's a general unease with the Canadian public because they feel their government has little if any control over the refugee program, over the immigration program? That the concern has been raised before. I hear constantly in my own constituency from the the ethnic communities who live there that they are concerned with the lack of control. Is there not more of a threat from that general unease of the Canadian public to the immigration and refugee system than this agreement itself would cause?
Mr. L'Heureux: I don't think so. The examples you give and that the previous speaker gave to me are true. There are abuses and sometimes abuses that are disconcerting. But again for every abuse there are as many legitimate cases. The danger of pampering excessively to anti-immigrant feelings, as I find the case is now, is to go to the other extreme. People who have genuine concerns, genuine rights, to assert will be prevented from doing so because of the general atmosphere that exists right now.
Ms Meredith: Do you feel this agreement is going to an extreme? Do you feel this agreement is not recognizing that genuine refugees with exceptions may want to come to Canada or the United States specifically because of family concerns or whatever? Do you feel this agreement is extreme?
Mr. L'Heureux: No, I don't, but I feel unease at what is motivating the agreement. I think that's my basic concern. For instance, the principle we talked about, the first country claim, I fundamentally disagree with. It's not because you're refused refugee status in one country that you will necessarily be refused in another. That's part of the philosophy of this.
Ms Meredith: But the motive of this agreement....
The Chair: Ms Meredith, I'll have to come back. Thank you. Ms Minna.
Ms Minna: I want to get back for a moment to the issue of choice because it seems to be one of the main issues quite apart from others. The other one is the issue of the UNHCR. It comes up over and over again that this hinders the choice of the refugees in deciding where they want to stay.
My understanding from talking to some of the other organizations that have presented here is that the issue of making more than one application is not a problem. Or is it for you? In other words, if an application is denied in Canada or the U.S., does that person in your mind have the right to go and apply in another country a second time?
Mr. Montbriand: As the law stands now, yes.
Ms Minna: Should we be doing that? I guess what I'm saying is that it's not necessary to have two, three or four kicks at a can. When that refugee applies in a country and has gone through the proper legal process and the determination has been made in a process that is recognized by the UNHCR and international law, then that should be the end of that. In other words, you have shopping. You can go to ten different countries before you find one you're finally are going to settle in if in fact you're not recognized.
Mr. Montbriand: Do you think such cases do exist? Ten adjudications on a claim?
Ms Minna: No, I'm not suggesting ten, but I'm saying I don't see that is a problem. The main issue you are bringing up is the issue of choice, people choosing where they file their first application and only one I suppose.
This agreement, as I see it, doesn't really deny refugees the right to come to Canada. It just simply tries to put on some time limits. If you intended to come to Canada to start with and you aren't here within a month or so of your travels, chances are you weren't coming here to start with but you happened to change your mind along the way, after having settled or been in the first country for a while. It's trying to avoid that continuous migration that goes on all the time.
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Mr. Montbriand: In the past there have been cases where, again, the Federal Court of Appeal - may I remind you that this is the court just below the Supreme Court of Canada - has decided that it was acceptable for a person to have travelled through ten countries that were all party to the convention without having claimed in those countries, because the person had valid reasons. But in other cases, the court decided differently.
A time limit is not a criterion in itself. If we imposed a time limit - it's a very short one, by the way - on the exercise of any right you might have in this country, I don't think you would necessarily agree with it. You might have a valid reason to bring forward to explain why you could not do it within nine days but you could within ten days. We're not talking about years here. Our legal system prescribes some time limits during which you are entitled to introduce a court action, but we are never talking about such short-term delays.
The question here is only to give an opportunity to the claimants, really, to justify their actions. We see no reason why we should not give them that opportunity. The courts have done it all the time in the past. Why do we want to throw out the window over 20 years of case law in Canada?
Ms Minna: But then you're saying that you don't agree with the decision of the UNHCR. It seems that the UNHCR, having looked at the world and all of the different complexities within this issue, has decided that this is in fact an acceptable agreement. It has said that these agreements are quite acceptable.
Mr. Montbriand: I have read what you referred to earlier. I haven't had time to study it, but I understood clearly that given a certain set of circumstances and conditions and safeguards, they thought that such agreements were acceptable.
Ms Minna: They also said the safeguards we were putting in this agreement were quite acceptable as well. They acknowledged that we were in fact going out of our way to put them in.
Mr. Montbriand: If both systems, for example, offer the same level of protection - I understood that.
I'm meeting with the UNHCR in ten minutes. Let's say I ask them what they think about the language as a criterion. I'm sure they'll say it's certainly an acceptable criterion. How can they say it's not? It has been recognized by courts, even in Canada, for the past twenty years. How can this agreement not recognize who we are and what our society is in Quebec?
That's why Mr. Nunez came to Canada to claim in Quebec twenty years ago. He was a Chilean refugee claimant.
Mr. Nunez: It was 22 years.
Mr. Montbriand: He spoke French and he wanted to have his claim be examined and adjudicated in French. Is that a wrong principle? Would that be so difficult to include in the agreement?
Ms Minna: But there are two things there. First of all, I don't see that this agreement denies that. It does say that if people leave with the intention of going to a particular country, if that's their destination to start with and that's where they end up going, no one's going to say to them, if they arrive at the U.S. border and say they're on their way to Canada, that they can't go there. That's not my understanding of this agreement, for starters. So that wouldn't have prevented Mr. Nunez from coming to Canada.
Mr. Montbriand: It depends if I have enough money to fly in or to take a bus from Chile. How long do you think it will take for me with my kids, for example, to travel from Santiago - and some did - by bus or hitch-hiking? Why should I be discriminated against if I don't have the means to pay for a direct flight, for example, from Santiago to Toronto? If it takes me ten days to reach the border, why should I be prevented from making a claim?
.1130
Ms Minna: But again, this agreement doesn't prevent you from making a claim.
Mr. Montbriand: Well, it does. If it takes me ten days to cross the States with my kids, I cannot claim at the border. I should claim in the States. I cannot say I want to claim in Montreal.
Ms Minna: But none of the decisions, as I read some of the articles, are quite that arbitrary; there's a great deal of discretion as well. I think we're painting some of the worst possible scenarios each time. We can always do that by using specific cases.
Mr. Montbriand: I'm not denying the fact that there's a genuine effort within the agreement to have some openings to deal with individual cases. All I'm saying is that, aside from family and a time limit, there should be a clear statement that both parties will examine the reasons put forward by the claimants. Among other things, one is language.
The Chair: Mr. McTeague, there are two minutes left on the government side.
[Translation]
Mr. McTeague: Not even two minutes.
Mr. Montbriand, I am a member for an Ontario riding and I heard the comments concerning francophones outside Quebec. My question is a very simple one.
You said earlier that if the objective of this agreement was not to adequately protect refugees... Can you give us some example of this agreement possibly hurting someone seeking protection?
Mr. Montbriand: I don't really understand your question. I didn't understand the introduction.
Mr. McTeague: The question is very simple. You said earlier that in your view this agreement did not provide adequate protection. Can you give us examples of cases where disagreement could...
Mr. Montbriand: I didn't say that the agreement does not provide adequate protection. I said that this agreement is based on the premise that the two systems, that is the U.S. and the Canadian systems, provide and will continue to provide the same level of protection for all classes of refugee claimants today and in the future. As you know, at one time the vast majority of refugee claimants came from Eastern Europe. There are not today from that part of the world. The same thing was once true of Chile. It is no longer the case today.
What I'm saying is that it is not possible to establish in advance that both systems offer the same level of protection for all. Moreover, our legislation only recognized this barely two years ago. Our law stated clearly that Canada would reserve, the right to sign agreements with a third country concerning all claimants or concerning certain groups of claimants. That's a reality of the modern world.
Mr. McTeague: So, in your opinion, the Canadian system of protection is by far superior to that of the United States.
Mr. Montbriand: In some cases. In other cases it may not be, but in the majority of cases, I would say so. It's certainly superior with regard to Haitians who flee their country by boat.
[English]
The Chair: Mr. McTeague, I'll come back. We still have another round.
Mr. McTeague: Oh, okay. I thought that was it.
The Chair: No, we have another round. I just want to complete the ten minutes.
[Translation]
Mr. Nunez.
Mr. Nunez: My colleague from the Reform Party made somewhat nasty comments about me. I can only attribute this to her frustration. Indeed her party didn't win any by-election last night and therefore it cannot take away the Official Opposition status from us.
The Chair: Mr. Nunez. We said we'd keep that for the House of Commons. Is there a question here for the witnesses?
Mr. Nunez: Yes.
The Chair: Thank you. The by-elections are not on the agenda. We all know the results.
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Mr. Nunez: Article 5 of the Draft Agreement provides for the removal of refugee claimants to a third country without a determination of their claim, except in a few special cases.
In the opinion of the Official Opposition, there is no true protection for refugees who are removed to a third country. There are no criteria about the countries to which they are sent.
What are your views on article 5 of the Draft Agreement?
Mr. Montbriand: If in a given case, it was clearly established or possible to establish that removal to this third country would present risks for the claimant, our Constitution, as interpreted in the Singh decision, could force the Government of Canada to hear the claim in Canada.
Let us recall that in 1996, when the Supreme Court handed down its decision in the case ofMr. Singh, the latter was only a refugee claimant. As a refugee claimant, if he didn't get a hearing - because in those days, people didn't get a hearing - the first benefit he lost was protection against removal to a country where his life or safety may be in danger.
Since this was the fundamental premise of the Supreme Court's rationale in the Singh case, I think that this would be a clear case where, fortunately, the Constitution of Canada could be of great help.
But it's a very cumbers one mechanism. You have to go before a higher court, the Federal Court. This is an expensive and relatively lengthy process. There is no guarantee that the person concerned could really exercise the right which I consider intrinsically hers.
I don't know if that answers your question.
Mr. Nunez: Yes, that's fine.
Professor Hathaway, whom you know and who is, in my opinion, one of the leading experts in Canada on the issue of refugees, made us a suggestion here last week. He proposed that we amend article 11 of this draft agreement so that it only comes into force when the laws of both countries at issue are harmonized.
What do you think of Professor Hathaway's suggestion?
Mr. Montbriand: I think that that's the minimum precaution demanded by the situation.
You know, there are pretty major amendments being proposed in the United States. In fact, this could call into question the whole presumption of innocence in both our systems.
I needn't remind you that with the same definition of "refugee" contained in the Geneva Convention, some countries, both politically and legislatively, adopt a widely divergent interpretation of the term.
For instance, allow me to remind you that in Europe, some countries only recognize people who are persecuted by a State. If they are persecuted by agents who have no links with the State they cannot be recognized as refugees, even though the State is unable to protect them. Canadian jurisprudence takes a completely opposite view in this situation.
There can be major differences in the exercise of sovereignty of each state, which we cannot deny. But in so far as each state can, to some extent, do whatever it wants, it is important that this be taken into account in bilateral agreements.
[English]
The Chair: Mr. McTeague, would you like to continue?
Mr. McTeague: No.
[Translation]
My question has been answered thanks to my colleague, Ms Minna. I have no further questions.
The Chair: Thank you.
[English]
Ms Meredith?
Ms Meredith: No.
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The Chair: I have some questions, if you'll permit me -
Mr. Montbriand: If I may, Madam Chair, add a comment on my colleague's question, in my submission I was not denying the fact that it is possible in exceptional cases, and for a limited number of cases, to have a case heard in French outside of Quebec. It's possible - in Toronto, for example. There are limited resources, but they are quite accommodating.
The Chair: That was one of my questions. Thank you. Being from Quebec, it was -
Mr. Montbriand: There are a few lawyers who speak French in Toronto, and a few members who can form a panel to hear French cases.
The Chair: Not only that, but I think documentation in all the IRBs is in both languages. That's the official policy of the government.
Mr. Montbriand: Documentation produced by the IRB, yes. However, documentation does tend to specialize according to the types of claims their district deals with. For example, in Montreal the documentation available concerning Algeria or Zaire is much more extensive than what's available in Toronto.
The Chair: But in this country no refugee or IRB member does not have access to documentation in either language. I want a yes or a no. No refugee claimant in this country has been denied, at all, having access to documentation in either official language.
Mr. Montbriand: If it's documentation produced by the IRB -
The Chair: It's in both languages.
Mr. Montbriand: For sure. But -
The Chair: Thank you.
To your knowledge, is it the first time such a draft has been given beforehand to non-governmental organizations, and distributed freely, and discussed freely?
Mr. Montbriand: Do you mean in Canada?
The Chair: In Canada.
Mr. Montbriand: Drafts for this agreement have been circulating since 1988, as far as I remember. Yes, to my knowledge it is the first time that official public consultations have been held.
The Chair: So there has been extensive consultation on an agreement that normally would not have been presented beforehand.
Mr. Montbriand: I don't know of any rule that would say that normally it shouldn't have been, but other countries do things similar to what has been done here. I think it's a basic principle of democracy, and I'm quite pleased with the principle.
The Chair: So in your opinion there has been ample time for all groups that have been interested in having their opinions expressed to have input.
Mr. Montbriand: For that, yes. I don't know about ``all groups''. I don't know if some groups have requested to be heard by your committee and I couldn't -
The Chair: I'm not speaking specifically of my committee; I'm speaking of all consultations that have taken place on this agreement.
Mr. Montbriand: As far as I know, aside from a meeting a couple of weeks ago in Ottawa, this is the only meaningful consultation that has been held.
The draft has been circulating since the end of last year, officially or unofficially, and there was one meeting a couple of weeks ago with Deputy Minister Tsaï and his staff and members of NGOs and the bars.
[Translation]
The Chair: I would like to quote from a letter form the High Commissioner for Refugees:
UNHCR is not opposed to such readmission agreements provided that full account is taken to safeguard the protection rights of refugees.
Further on, in the third paragraph it says:
- readmission agreements already exist among many European countries (eg 1985 Schengen and
1991 Dublin agreements).
Mr. Montbriand: With regard to the latter statement, it is the situation that does in fact exist.
[English]
Even in Canada, in courts dealing with refugee claims, a practice has been in existence through which we have always taken into account the fact that a person had gone through other countries that were part of the convention...or claimants who had been rejected in other countries. There is an existing practice in Canada to take those facts into account. And in some cases claims are rejected for such reasons.
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The Chair: Some cases....
Mr. Montbriand: Not only for that reason as such but because of that reason as it affects assessment of the credibility of a specific claimant. It is a fact that is always taken into account by board members.
[Translation]
The Chair: The reason why I quote from this paragraph is that there were talks in Dublin in 1991 that were attended by the High Commissioner for Refugees, if I'm not mistaken. He agreed in principle that the practice should become law. It does happen - I apologize because I'm not a lawyer and I don't claim to be - that practice becomes law, after there is an initial agreement that goes in that direction. But there still were talks in 1991 that concurred with the thrust of that agreement.
Mr. Montbriand: One can't deny there were talks; nor can we deny that an agreement was signed among European community countries. I won't try to hide from you that the application and exercise of this agreement presents a number of problems in Europe, precisely because the signing countries of this agreement do not necessarily satisfy the minimal or fundamental criteria that they've all made a commitment to respect.
Whenever these conditions are not met, the agreement becomes rather shaky. We're not saying that the government has no right to sign such an agreement. We're not saying that there is no justification for such an agreement. What we are saying is that if there is justification, it must be based on premises that truly exist. The objectives of this agreement must be stated clearly and publicly and, above all, the agreement must contain mechanisms not only for signing countries but also for the individuals involved, through which certain specific aspects of any case can be put forward.
In an eight page text, it is not possible to provide for every situation and every type of claim, the way each state will deal with them, and especially, what will happen to the system in each country month by month. In the United States, this may be a question of months.
The Chair: Yes, but no system is perfect and no law can solve all individual cases. There are always exceptions.
I would have one last question, with your permission. A great number of witnesses appeared before the Carnegie Endowment for International Peace. There was Mr. Gerald Shannon, the Canadian representative at the UN in Geneva, and Mr. Eduardo Arboleda,
[English]
head of the North American unit in the regional bureau for America and the Caribbean, UNHCR,
[Translation]
who both explained that...
[English]
I will read it:
- Generally, the organization takes the view that agreements among states could enhance the
protection of refugees by leading to the orderly handling of asylum applications and could help
reduce the misuse of asylum procedures for irregular migration. In principle, it does not
object...
- - and this is UNHCR -
- ...to readmission agreements as long as safeguards are maintained and state responsibility for
examining asylum requests is clearly assigned so as to avoid orbit situations.
Would you agree that this agreement does at least try to solve what Mr. Arboleda andMr. Shannon called migration management?
Mr. Montbriand: Quite honestly, Madam Chair, I don't see the problem that this agreement is trying to solve. At this stage, it refers to possible problems or possible abuse by people who lived in the United States for a long time or who may have been refused by the United States.
In the course of the long hearings you held, I don't know whether any concrete cases of such situations were reported to you. I haven't heard of any. I have no doubt that such cases exist. I have no doubt about that.
.1150
Having said that, are there five cases a year, 12 or, as this morning's witness Mr. Bauer seemed to be insinuating, is there a potential rush of claimants that could go up to 450 000 people? You will understand that the government of Canada is faced with a very wide range of possible reactions depending on the numbers.
Some witnesses stated that clearly before you, I think. They also said it to the minister. We are attempting to identify the problem that you want to solve through this agreement and we don't seem to be able to target it. I don't doubt that there may be problems, but we have to be able to determine what they are in concrete terms.
With all due respect, Madam Chair, I think that it is the responsibility of the members of Parliament who sit on our behalf in the House of Commons, to ensure that legislation is introduced agreements are reached to solve actual cases of abuse. I don't doubt that there may be some, but I would like them to be described more explicitly. My fear is that the few cases of abuse will lead to a solution that would amount to throwing the baby out with the bath water. We'll have to see of course, but...
The Chair: Thank you. Have a good day.
[English]
We will meet at 3:30 p.m. in Room 701. Thank you.
The meeting is adjourned.