Bill C-280 (Historical)

An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171)

Immigration and Refugee Protection Act

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Mr. Speaker, the constituents of Fleetwood—Port Kells and Canadians recognize and are very proud of our country's responsibility to provide refuge and protection to those in need. In the past year alone, we have welcomed 32,000 refugees.

Recently, the minister was at an event in London to announce that Canada will be accepting an additional 2,000 Karen refugees. This is further to the 800 we announced last summer.

It is no secret that Canada is a world leader when it comes to providing refuge and protection to those in need. Just a few months ago, the United Nations High Commissioner for Refugees praised our current refugee determination system as being one of the fairest and most generous in the world.

In addition, the Canadian Council for Refugees has noted the high quality of the decision making process of the Immigration and Refugee Board. The reason for the high praise from the Canadian Council for Refugees and UNHCR is because Canada provides protection to those who need it.

Canada has been welcoming tens of thousands of refugees each year. The Government of Canada has ensured that the first level decision makers and the decisions they make are fair, compassionate and competent. As well, if the fair minded, first level decision makers determine that a claimant is not a refugee, the current system offers several avenues both to revisit the decision and to apply to stay in Canada.

The proposed legislation, Bill C-280, revisits Parliament's decision in 2001 to delegate to cabinet the timing for implementing a refugee appeal division. To reiterate, RAD would be a paper based review of the refugee determination record. It may confirm the initial decision, set it aside, or refer the case back to the refugee protection division of the Immigration and Refugee Board.

It will not streamline existing processes in the Immigration and Refugee Protection Act since it would be a de facto right of appeal. Failed claimants would still be able to apply for judicial review at the federal court.

The implementation of the RAD would be cumbersome and a very delicate task that would involve $2 million in startup costs alone, in addition to systems costs.

Despite the fact that this Conservative government has just added $307 million in new funding for settlement services, it will be the provincial and territorial governments which will bear much of the responsibility for the welfare of refugee claimants while they await the determination of their claim and the hearing of their appeals.

Of the estimated annual $32 million that it will cost to implement, approximately $12.1 million will be the cost to the federal treasury. The provinces would be expected to carry approximately $21 million annually to fund social services and legal aid for another level of legal process.

Ordinarily, the federal government would engage in consultations with the provinces and territories before it acts to impact their treasuries to the tune of $20 million-plus. Imagine the howls of protest from the opposition, especially the Bloc, if the situation were different and the government implemented these sections unilaterally without talking to Quebec or the other provinces first. It is not surprising that the Bloc and the NDP, two parties not used to making decisions in government, are errant in this responsibility.

It should also be noted that in order to implement the RAD, the IRB itself has said that the skill set of members of the RAD would need to be different from other IRB members. The IRB stated that the selection would have to reflect the tasks of an appellate decision-maker, require a stronger legal and analytical capacity, and some prior adjudicative experience. The IRB further stated that the only workable way to implement this would be to have a date of implementation 10 months to one year after royal assent, so that there would be a full complement of members, training and a case tracking system.

Many reasons were taken into consideration when Parliament decided to delegate the decision to implement RAD to cabinet. Rather than calling for its immediate implementation, these considerations included: the existing backlog at the Refugee and Immigration Board; the practical and administrative matters involved in setting up a new tribunal such as the appeal division, opening its offices, hiring staff, finding qualified decision makers and developing procedural rules; the need to provide the appeal division with appropriate budgetary allocations; and the opportunity to assess the success of the system that was created by the IRPA and all the measures and protections it provides without a refugee appeal division.

For instance, if an individual's claim for refugee status is denied by the Immigration and Refugee Board, he or she has the right to apply for a leave or a type of permission to request a judicial review from the Federal Court. When leave is granted, the court will proceed with the judicial review.

Historically speaking, 76% of negative cases from the IRB apply for leave and only 15% get the authorization to proceed by the Federal Court of Canada. This speaks to the high quality of the first level decisions at the IRB.

It is important to note that in fact the Federal Court considers both errors in law and errors in fact when reviewing IRB decisions. Should the Federal Court uphold the IRB decision, claimants can exercise their right to apply for a pre-removal risk assessment. This process addresses situations where there is new evidence or a change in circumstances.

The Government of Canada has an obligation under international law not to expel or return any individuals to a country where they may face a risk of torture or ill-treatment. This obligation is taken very seriously. In fulfilling these obligations, we assess claims made by refugee applicants who would, if removed from Canada, face a substantial risk of torture or ill-treatment. The risk assessment must be completed before the individual may be returned to his or her country.

The Immigration and Refugee Protection Act provides another avenue, allowing refugee claimants to apply for permanent residence in Canada on humanitarian and compassionate grounds. The purpose of humanitarian and compassionate discretion is to allow flexibility to approve deserving cases not anticipated in the legislation.

In 2006, more than 8,900 people were accepted under humanitarian and compassionate grounds. Many of them were failed refugee claimants. This discretionary tool is intended to uphold Canada's humanitarian tradition.

Many claimants are in the system for many months and even years as they exercise their rights to apply for a review. When approved, often newcomers land in Canada two or three years later. Rejected cases are not ready for removal before two to three years.

Ordinarily, claimants remain in Canada while the review is conducted and have access to a range of benefits in all provinces, including education, and medical and hospital services through interim health funding and welfare systems. The requirements and benefits may vary from one province to another, but they are applied evenly to all residents of that jurisdiction.

While we are all proud of our generous and fair system, we also expect it to work efficiently as well as effectively. In fact, it was the former Liberal critic, the member for Laval—Les Îles, who stated that the current process allows delays by failed claimants ad infinitum and does not want to see RAD implemented without tinkering with other parts of the system.

We must consider whether creating yet more processes will enhance what is already regarded as one of the best and most generous refugee determination systems in the world. Furthermore, we must question whether there is an actual legitimate reason to implement the RAD at this time.

These questions must be asked within the context of the recognition that Canada's current refugee determination system meets all legal requirements, provides adequate protection to all those who need it, and provides a number of opportunities for decisions to be reviewed.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, I will note that the member for Fleetwood—Port Kells is on the citizenship and immigration committee. She and I had the occasion to tour the country in 2005, when we did a cross-Canada tour on citizenship and immigration matters.

I have been on the citizenship and immigration committee since 1998. I have been parliamentary secretary, chair of the committee and vice-chair of the committee. I have always tried very hard to take a non-partisan role because I believe that immigrants and refugees are the lifeblood of this country. The issue should be one where all the parties should work together and we should keep partisanship out of it as much as possible.

I have disagreed with my ministers at various times. In fact, I resigned as parliamentary secretary to the minister of citizenship and immigration in 2000 because I disagreed with her profoundly on the Citizenship Act.

I mentioned that we travelled the country. We travelled the country in 2003 as well. At the time, the member for Calgary—Nose Hill, who was the critic for the Alliance Party, had intimate knowledge of citizenship and immigration matters. When the Liberals lost the last election and the Conservatives formed the government, I hoped, along with the other critics, that she, being the most knowledgeable person on that side of the House on these issues, would be appointed as minister because the department faced many challenges. That did not happen.

We have had two ministers in less than year who have appointed to the position with no previous experience at all in terms of immigration and citizenship matters, which is not doing what is best for the country.

As I mentioned before, I try to take very a non-partisan approach. I very much appreciated the critic for the New Democratic Party and his perseverance on issues of human rights and civil liberties. I will say the same thing for the member from the Bloc who has been the critic on it.

Overall, probably the least partisan committee in Parliament was in the last Parliament. We put partisanship aside and worked on numerous reports that we hoped would be implemented. When the new government came in, that did not happen. We instead have too much partisanship in the committee, and I think it is to the detriment of Canadians.

The whole issue of the refugee determination system was set up under the Brian Mulroney Conservatives on the ruling of the Singh decision of the Supreme Court. Initially we used to have two board members who used to hear refugee cases. If one board member concurred with the applicant, just one out of two, then refugee status was granted.

In 2001 new legislation was put in place, the new Immigration and Refugee Protection Act. The two member board became a one member board. What was supposed to happen was the refugee appeal division was to be put in place, but that did not happen. I fought with my government to try to make that happen, which was the position of the opposition parties as well.

We are in the situation now that we have a one member board. If that person makes a mistake, the applicant is really out of luck.

I will use an example of one case that caused me a great deal of problem. It led me into a major confrontation with my minister at the time, to whom I was parliamentary secretary.

This situation involved a young woman who was living in the former state of Yugoslavia, Vojvodina. She had applied for refugee status. She was a reporter. She realized she could no longer read and report on the propaganda and lies of the regime at that time. When she came under threat, she fled for her life and came to Canada. She had the misfortune of going through a refugee hearing that consisted of only one panel member. She did not have very good legal advice and agreed to be heard by a panel of one board member.

What troubles me about the decision he wrote, when he turned her down for refugee status, was he did not believe there was a collusion among the media, the police and the government. That was his decision and his reasoning for turning down her refugee status.

We are talking about the former state of Yugoslavia. Milosevic was taken up before The Hague on war crimes and crimes against humanity. He was running a dictatorship. There was a member on the Refugee Board who did not understand that. He turned down her application and she very easily could have been sent back to her death. In fact, the thing I find very ironic is this. When she was to be sent back in October 1998, she would have arrived in Belgrade in the former Yugoslavia just two hours before NATO was to begin bombing.

Clearly that process did not work well. It shows the shortcomings of the system. The shortcoming was that qualified members were not being appointed. The other shortcoming was that the risk assessment and the humanitarian and compassionate grounds did not work.

I have mentioned that many of the appointments were partisan. That is exactly what they were. I invite members to read the chapter on the former prime minister in On the Take: Crime, Corruption and Greed in the Mulroney Conservative Years. That is an important point of reference for people to read. I think it will show how corrupt the whole system of appointments was. Wives, girlfriends, friends and people, who knew very little about the system, were appointed.

Something else has happened in the last week which has caused me even greater concern. In 2004 the Liberal government did something that was very good. The previous government stopped political appointments to the system, which was a very positive step. It was done under the leadership of Jean-Guy Fleury, the chairman of the Immigration and Refugee Board.

Unfortunately, Mr. Fleury tendered his resignation because he could not agree with the government's new policy where the minister, once again, would be involved in appointing members to the Refugee Board.

The Refugee Board deals with life and death matters, as I outlined before. Many people, who are wrongfully turned away, end up going back to torture or to their death. As members of Parliament, no decision making is more difficult than trying to deal with failed refugee claimants. When they are wrongfully turned down, their hope of finding refuge in our country is greatly diminished.

This is probably the most important assault on the Refugee Board that we have had. To turn back the clock, where once again politicians will be making appointments to the Refugee Board, is totally wrong.

Mr. Fleury is recognized country-wide, by all the groups that deal with refugee matters, for his outstanding leadership. I can only say that the road we are going down is terrible.

We will be having hearings at the citizenship and immigration committee on the issue of political interference in the Refugee Board and what happened to Mr. Fleury. Witnesses will be called before the committee. I can only ask members of Parliament and people watching to focus attention on this issue. If no attention is paid to it, people will be sent to countries where they will be subjected to torture, imprisonment and very well could well lose their lives. Canada is not about that.

As parliamentarians, we have an obligation to make some issues non-partisan, and this is one of them. We have to stand behind RAD, pass it and make our refugee determination system independent of political interference.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I thank my colleague for his comments, many of which I would echo, and for his intervention and work over the years.

We need to deal with this issue straight up. Canada has a record of being a beacon for those whose rights are oppressed and for those who are living under dictatorships. Those people see Canada as a place of freedom and a place where they will be treated fairly.

We need to have a process in place to ensure that the rights of those who come to our shores, those who have been oppressed and are seeking refuge, will be honoured. It is important to have a process that determines one's status based on merit and on arguments that are put forward in a reasonable fashion.

We know the games that have been played over the years with the appointments process. We know that people who were not qualified were appointed to determine whether someone stayed or was sent back to a place where the person's life or the lives of the person's family would be put in danger. The fact is that we were not able to put in a process that made sense. However, in the bill before us today, we now have a reasonable and sensible method of doing that.

Our appointments process is important because it is integral to this issue. The NDP had put forward the suggestion of a public appointments commission that would ensure all appointments were merit based and that they had oversight, not just of the government but of independent officers to ensure that what should be done was being done. My colleague from Winnipeg Centre fought tirelessly for that amendment to be put in the Federal Accountability Act. He wanted to ensure that we did not go back to the old partisanship of pork barrel politics, or rum bottle politics, as my friend says, but that we go forward and make appointments based on merit. We must remember that these appointments determine whether refugees are allowed to stay in this country and, if not, whether they will survive if they are sent back to a country where they may live in tyranny or worse, be killed.

What we were trying to do was to deal with the taint in our political culture and history of appointing people based on who they knew and what party card they had and not based on the merit and skills of the person being appointed.

When we deal with this issue, it is extremely important to acknowledge that this commission must be put in place. If we try to deal with this one off, try to deal with one appointment at a time, and say that this person is nice and this person is credible, it will not deal with the problem. We have a structural deficiency in our body politic. We are still waiting for the government to set up the public appointments commission. As I mentioned in the House earlier today, it has not acted on it and in fact has put in place a parallel process.

My colleague from Burnaby—Douglas has worked on this issue to deal with refugee protection and ensure we have what is known as RAD. We must not play with people's lives. We must ensure there is a fair and just process. What he has done consistently in committee is to push the government, be it the former government or the present government, and tell it that this is not something that we should be playing around with, that this is something we should enact immediately.

The member has consistently pointed out that this is not a cost issue, that it will not cost a lot of money. We have qualified people to do this. In fact, once we put out a fair call for people to apply for these positions, as we asked for in the public appointments process, I know many people will be able to serve because they are qualified for the job and they want to work on this important issue. In fact, I know people from coast to coast to coast who are qualified for this.

What the NDP has consistently called for is the implementation of RAD. It is not a theory. It is not something that needs to be studied. It is not something that we have to lecture other jurisdictions on. It is something that we have the know-how to do at present. We should do it immediately.

As I mentioned, it is not costly. In fact, we will save money. We know that every time people have to seek sanctuary or call for others to help them on their behalf, it becomes a very costly process. To think smartly on this issue, to make sure we have a process that is going to serve the justice that we all want, and to make sure we have a system that is fair, we should implement the RAD process.

I know that the previous government was not able to do that. Sadly, we saw the opportunity to put it in place missed time and time again. All of us in opposition, when the former government was dragging its feet on this issue, were unanimous in calling on the then Liberal government to get going on this. We know there was dissension in the ranks, and that some people, as was mentioned by the previous speaker, actually resigned their positions because the government was not taking action.

It was the present government when it was in opposition that joined the chorus of those who asked the government to get on with the job and get moving because it was not right to leave people behind. It was not right to not allow them to be heard and to force them into sanctuary. We will recall that there was even a discussion on whether sanctuary would be legal in this country under the former government. Can we imagine that?

Seeking sanctuary is a desperate measure, to be sure, but it is something that goes back to the middle ages. When people did not have the opportunity to seek safety with the justice system of the regime at the time, they at least had the ability to go into a safe, secure place in sanctuary, usually in churches and places of faith.

The government actually challenged that notion, but thankfully that was put aside. It was the present government that joined the chorus of those who were critical. What we are asking of the government now is that it simply do what it said it would do in opposition and put in a process that is fair, just and right.

I hope we see some movement on this. I hope the government decides to learn from experience, to go back and do the things it said it would do in opposition, and to look at the fact that RAD is a smart thing to do. It is cost efficient and the right thing to do. It is the Canadian thing to do.

If we do not do use this as a tool to deal with the refugee situation, what we are saying is that these people do not matter. We will not be surprised when we hear of more persons having to go into sanctuary. Probably in the next week we will see more people having to go into sanctuary, be it here in Ottawa, where we have seen cases, or across the country.

Then what will the government say when people are in sanctuary? It will say that it had no other choice. What will be its answer? Will the government say it is going to study it more or that it does not have the money? We know the answers are there. Studying it was done before. We know what the answer is.

At the end of the day, this should not be about political partisanship. It should not be about one-upmanship. This should be about getting this problem solved and solved immediately, because the problem with the appeals that are required of refugees is something we have to deal with today. I will not be surprised if next week we hear that someone else has sought refuge and sanctuary because we did not have a system to deal with it. That would be a sad thing.

[Richard Nadeau, Bloc, Gatineau, QC]

Mr. Speaker, the Bloc Québécois supports Bill C-280, which seeks to create a refugee appeal division. The Bloc Québécois has asked repeatedly for such a body, and it is far from being the only one to have done so. Others include the Office of the United Nations High Commissioner for Human Rights, the UN Committee against Torture, the Canadian Council for Refugees, the Canadian Bar Association, Amnesty international, the Civil Liberties Union, and the KAIROS group.

What is a refugee? The definition of a refugee or an asylum seeker has long been established in international conventions. For example, the Convention relating to the Status of Refugees was adopted by the United Nations in 1951. Under that convention, Canada cannot directly or indirectly return a person to a country where he will be persecuted. Article 1 of the convention defines the term “refugee” as follows:

—owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;—

Furthermore, article 33 defines the responsibilities of governments with respect to the protection of refugees, and I quote:

No contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

This definition is limited and applies only to political refugees, and not to those who have suffered a humanitarian crisis such as flooding or famine. Nevertheless, this constitutes a major legal obligation.

A proper appeal process for refugee claimants ought to have been put in place as soon as the Immigration and Refugee Protection Act took effect in June 2002.

This act includes three sections that create a refugee appeal division, to be administered by the Immigration and Refugee Board. Citizenship and Immigration briefly defines the refugee appeal division as follows:

The refugee appeal division will provide failed refugee claimants and the minister with the right to a paper appeal of a decision from the Immigration and Refugee Board.

Establishing the refugee appeal division is a matter of justice. The failure to do so allows a situation that is unfair to asylum seekers to continue. For four years now, the federal government has been stubbornly postponing the establishment of the refugee appeal division, as called for in the Immigration and Refugee Protection Act.

The federal government claims that a safety net already exists, consisting of the opportunity to request a pre-removal risk assessment, a judicial review by the Federal Court, or permanent resident status on humanitarian grounds. Unlike a refugee appeals division, they do not offer any protection for refugees.

There are four reasons why the refugee appeal division should be established. These four reasons were presented by Mr. François Crépeau who teaches international law at the Université de Montréal. They were also cited in a report by the Canadian Council for Refugees.

The first reason is efficiency. A specialized appeal division for refugee matters can deal much more efficiently with unsuccessful claimants than the Federal Court, an application for pre-removal risk assessment or requests on humanitarian grounds. The refugee appeals division can do a better job of correcting errors of law and fact.

The second reason is consistency of the law. An appeal division deciding on the merits of the case is the only body able to ensure consistency of jurisprudence both in the analysis of facts and in the interpretations of legal concepts in the largest administrative tribunal in Canada.

In other words, an appeal mechanism helps the system to make decisions by establishing precedents that will be applied to lower court rulings when the facts are exactly the same.

The third reason has to do with justice. The decision to refuse refugee status has extremely serious consequences, including death, torture, detention, and so on. As in matters of criminal law, the right to appeal to a higher tribunal is essential for the proper administration of justice. Because human errors occur in any decision-making process, it should be normal to have an appeal process to offset the fact that decisions are made by a single person.

The fourth reason is political. By not establishing the refugee appeal division, the federal government is going against the will of Parliament and the Standing Committee on Citizenship and Immigration, which have called for such an appeal division.

We must never forget that when a person applies for refugee status, they are in a state of vulnerability and helplessness. They have left a situation where their life was in danger because of persecution. They arrive in a country where, in many cases, they do not understand the language, neither French nor English, and they are in a precarious economic situation, sometimes with only the shirt on their back.

Canada has a moral duty to make sure these people are treated with the utmost compassion.

Even though the refugee appeal division is included in the legislation, neither the Liberals nor the Conservatives have wanted to implement it.

Yet in April 2005, the Conservative Party released a report entitled “National Consultations on Canada's Immigration System”, containing the following recommendation:

The appeal process must be reviewed. There is no real appeal process. The refugee appeal division has to be set up. Decisions have to be made by more than one person.

The Conservatives were in favour of a refugee appeal division when they were in opposition. Now, they must keep their promise.

The refugee appeal division has no equivalent. A pre-removal risk assessment does not provide for a substantive review of the application. The Federal Court can conduct reviews of technical legal issues only; it cannot review the facts of a case.

Applying for permanent resident status on humanitarian grounds can be extremely complicated for someone from another country who has no representation in Canada, and it is therefore difficult to claim that this is a substitute for the refugee appeal division.

For all these reasons, and many more besides, Bill C-280 on implementing a refugee appeal division must be adopted.

[The Acting Speaker, Royal Galipeau]

Resuming debate.

I am now giving the floor to the hon. member for Laval. I would also inform the House that following her intervention, we will end the debate because this is her right of reply.

[Nicole Demers, Bloc, Laval, QC]

Mr. Speaker, as I close out the debate, I will not talk about Bill C-280. Nor will I talk about the hundreds and thousands of refugees who, in the absence of a refugee appeal division, will be denied full Canadian citizenship and will be sent back where they came from.

I will not talk about them because today, after listening to the debate all day, I realized that this government is so mean-spirited that it is using all kinds of people to deny other people their rights. It is using women to deny women their rights; farmers to deny farmers their rights; people born elsewhere to deny the rights of refugees; and francophones to deny the rights of francophones.

It has been going on about the previous government ad nauseam, saying it was they who did nothing. Now this government has been in power for over a year. It made its promises over a year ago. When the Conservatives were in opposition, they said that there would be a refugee appeal division, but now they want nothing to do with it.

This is not right. The Conservative members from Quebec, who spend their time denying people their rights and denigrating other members from Quebec, have done nothing as part of the government. They have done nothing for their ridings, nothing for their citizens, nothing for Quebec and nothing for Quebeckers.

Next week, when we vote on this, will they decide to do nothing for refugees? I hope that all Canadians and all Quebeckers with immigrant ancestors will remember this.

We have been asking for this appeal division for years. The UN has even said a number of times that it is incredible that it still has not been implemented.

This is not just a whim or a passing fancy the Bloc Québécois came up with for political gain; we are talking about lives, people, women and children who are living in churches today, who do not even have the opportunity to go out in the storm because they cannot even leave their home in a church, where they have been shut in for more than a year in some cases.

This is not right. I wonder what the government is doing. We are still waiting for rights to be reinstated and for fairness and justice to be restored. We are not talking about billions of dollars, we are not even talking about hundreds of millions of dollars.

The hon. member from the government side spoke earlier. The government interferes in every provincial jurisdiction when it suits its own interests. However, when it does not suit the government, it talks about the millions of dollars. But it wants to invest those millions of dollars in fighting cancer or Alzheimer's, wherever its own interests are served.

It is a matter of political will to restore fairness and justice for people who have the right to be heard, listened to and validated in their quest for freedom.

[The Acting Speaker, Royal Galipeau]

Is the House ready for the question?

[Some hon. members]

Question.

[The Acting Speaker, Royal Galipeau]

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Acting Speaker, Royal Galipeau]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Acting Speaker, Royal Galipeau]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Acting Speaker, Royal Galipeau]

In my opinion the nays have it.

And five or more members having risen: