Comments on the Report of the Legislative Review Advisory Group

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COMMENTS ON THE REPORT

OF THE LEGISLATIVE REVIEW ADVISORY GROUP:

NOT JUST NUMBERS

MARCH 1998

 

SUMMARY

 

1. Consultation process

The Canadian Council for Refugees is an umbrella organization uniting over 140 groups across Canada. Many of our members have been denied the opportunity to make an oral presentation. The CCR emphasizes the importance of full public discussion and careful study before the drafting of any legislation. There is no justification for rushed and arbitrary deadlines: on the contrary, hurried legislation will be bad legislation. We urge that a consultative process be developed involving input from NGOs and broader public input.

2. General comments on the report

The principles set out to guide the recommendations are commendable but do not always seem to be followed. We note a lack of explanation in the report about why in some areas radical changes are proposed, while in other areas existing provisions are maintained. The report also raises many questions about practical consequences of the recommendations. We call for the incorporation of international human rights instruments into the legislation. We welcome the proposal to create a separate Protection Act in recognition of the difference between refugees (involuntary migrants) and immigrants (voluntary migrants). However we have concerns about the objectives proposed for the Protection Act and the way refugee issues are handled under the proposed Citizenship and Immigration Act. Immigration legislation should ensure that non-citizens receive equal treatment with Canadian citizens in comparable contexts. We do not support the proposal to combine citizenship and immigration in a single act, since these matters, though linked, remain distinct and each merit their own separate preamble.

3. Refugee Protection

A. The race to the bottom

Despite its expressed commitment to a leadership role in refugee protection, the report in fact recommends following the example of other countries in closing their doors to refugees. The existing refugee determination system, which has been recognized internationally as a leader in the field, is to be jettisoned and replaced by a refugee determination system that copies inferior measures used by other countries and incorporates the Safe Third Country concept that has been used by many countries to keep refugees away.

B. International Standards

We welcome the recommendation that determination of claims consider not merely the Refugee Convention but all other relevant international human rights standards. However, a number of the specific recommendations fail to live up to our obligations under these human rights standards. We are also concerned about an implicit undermining of the 1951 Geneva Convention Relating to the Status of Refugees, which must remain the cornerstone of refugee protection. The concept of "most in need" is ambiguous and potentially contrary to international standards, insofar as Canada must protect from refoulement everyone in need of protection, and not simply those "most in need" of protection.

C. Independence/quasi-judicial decision-making

The report turns its back on independent, quasi-judicial decision-making, in refugee determination and other areas. This amounts to a rejection of fundamental principles of justice, principles that are integral to a solid, reliable protection system and to fair treatment of non-citizens.

D. Overseas Protection Process

We welcome the recommendation for increased focus on resettlement from overseas and the implicit recognition of problems in the current program, without necessarily endorsing the specific recommendations made. We endorse the proposed withdrawal of the successful establishment criterion. Despite the desire to create greater consistency, the overseas process would be in several ways inferior to the in-Canada process and the problems of delays are largely unaddressed. We believe that a reinvigorated resettlement program should be built on the strengths of the existing program. We are firmly opposed to the recommendation to cap the annual numbers of refugees resettled. The emphasis on the role of NGOs is welcome, although we have concerns about making them responsible for final decision-making.

E. Timelines

While a speedier refugee determination is in the interests of refugees, imposing rigid arbitrary timelines within which a person must make a claim and be heard is inconsistent with the realities of refugee determination and the demands of justice. The three-day timeline for presenting oneself at the Protection Agency in order to make a claim is extraordinarily inappropriate.

F. Appeal

We welcome the proposal to introduce an appeal into the in-Canada refugee determination system, although some of the provisions fail to meet the necessary standards of fairness. The proposed absence of appeal in the overseas refugee process is unacceptable, and is in contradiction with the declared objective of creating consistency between the inland and overseas systems.

G. Other

The CCR calls for the abolition of the Right of Landing Fee and of the article (A.46.04(8)) introduced in 1993 requiring refugees to produce identity documents.

4. Cost

The proposed model is uncosted but would appear to involve considerable resources, which make some recommendations unrealistic and would likely subvert others from their intended objectives.

5. Family Reunification

We welcome the commitment to family reunification and the proposal to have a more flexible definition of spouse, increase the age of sponsorable children to 22 and allow sponsors to define family members of most importance to them. The recommendation that immediate family be able to travel to Canada for processing is highly appropriate. Taken literally, this provision does not however apply to the families of refugees in Canada, who have additional protection concerns and therefore should certainly benefit from concurrent processing in Canada. We support the reduction of the sponsorship undertaking duration for immediate family to 3 years and the measures to address domestic violence within sponsorship, although the specific recommendations are flawed. Denial of immediate family reunification on the basis of receipt of welfare is completely unacceptable.

6. Language Requirements

The CCR opposes any inflexible requirement that immigrants know one of Canada's official languages. We also oppose the imposition of any fees on English or French language classes.

7. Citizenship and Integration

Questions of citizenship were not part of the advisory group's mandate and have therefore not been the subject of consultation. There needs to be full public discussion about what we are looking for in future citizens. The CCR believes that Canada should not require more of immigrants becoming citizens than we require of the native-born. On that basis we oppose the requirement that potential citizens meet two out of four criteria of participation. We welcome the recognition of the importance of integration although we have reservations about the concept of integration espoused. Reference needs to be made to multiculturalism. Proposed research and data collection on integration success and failure require great caution.

 

8. Compliance

We believe that non-citizens should receive equal treatment with Canadian citizens in comparable contexts. The report's recommendations in the area of enforcement amount to a serious erosion of rights. The provisions for detention and automated tracking are of great concern, particularly in their application to refugee claimants.

 

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COMMENTS

 

1. Consultation process

The Canadian Council for Refugees is an umbrella organization uniting over 140 groups across Canada. We are concerned for the protection of refugees in Canada and around the world and for the settlement of refugees and immigrants in Canada.

Some of our members are making individual presentations on the Legislative Review report, but others have been denied the opportunity to make an oral presentation. While the CCR plays an important role in advocating for positions which our members identify as being of key common concern, we in no way seek to substitute ourselves for the broad range of perspective and emphasis that our members, with their diversity of experience and expertise, individually bring to the table.

The Legislative Review report gives a full chapter (Ch. 3) to "sharing responsibilities", recognizing the importance of consultations and partnership and the need to find new and improved forms of consultation and collaboration. The comments and recommendations in this chapter to a large extent reflect the point of view of non-governmental organizations and we urge that they be given careful attention.

It is in the circumstances ironic that the consultations undertaken by the Advisory Group were found seriously wanting by NGOs. While anyone interested was encouraged to make written submissions, the hearings were by invitation only, with even the area of discussion imposed on participants.

The consultations on the Legislative Review report, as announced by the Minister at the beginning of January 1998 are even further from being satisfactory. Despite the radical and wide-ranging nature of the changes proposed and the absence of any rationale for haste, an objective of tabling legislation by the end of 1998 has been established. The Canadian public has been given a mere two months to learn about and develop a response to the advisory group's recommendations. Hearings are being held in a limited number of cities and only groups or individuals selected (according to unknown criteria) have been given the opportunity to speak.

We believe that immigration and refugee policy concerns all Canadians and that proposals of broad changes require broad discussion. Only in this way can we as a country take collective responsibility for the decisions that will shape the country we will become.

Furthermore, responsible policy-making needs to be carefully thought out. Too often in the past have we seen the consequences of overly hasty legislative or regulatory change, where intended objectives were not achieved and unintended effects were created. The broader the proposed changes, the more care needs to be given to thorough and detailed consultation to ensure that the results correspond to the intentions. An accelerated drive towards early tabling of legislation is not compatible with this care.

We cannot agree with the Minister's opinion that two months is sufficient to allow a thorough discussion of the report. This extremely limited time has not allowed us to be as thorough in our own consultation with our members as we would like, and as our status as an umbrella organization requires. We have not been able to sound out our members on the many new recommendations. Nor have we been able to develop a comprehensive response to the report's 168 pages and its 172 recommendations.

What follows is an initial response to the report, highlighting key aspects. We have as far as possible offered our own alternatives to recommendations we have found wanting. But again the very short timelimes have severely restricted our capacity to develop alternatives that fit the framework established by the Advisory Group.

On page 26 of the report the authors state: "Government action, including legislative change, must be predicated on the active support or groups and institutions which have a direct interest in immigration and the protection of those seeking asylum".

The CCR will support legislation that welcomes immigrants, protects refugees, respects our international human rights obligations and the Canadian Charter, treats all people with dignity and removes those who should not be in Canada. To do this, it must be legislation that works.

Our experience teaches us that what matters for refugees and others affected by the law is not the intention behind the rules, but how how they translate into action.

In this respect, we find the report wanting - many of the recommendations seem to us to be unworkable or impossibly costly or to promise effects that undermine the stated intentions. This perhaps exposes the limitations of a three-person committee, working without the benefit of the broad range of experience of those on the ground.

It is partly out of our concern for the workability of any proposals that we are anxious to have the Department's comments made public. Just as non-governmental organizations have important comments to make from our perspective about what would be workable and what would have negative effects, so the Department has relevant information based on the context in which they are working.

As a next step in the process of legislative review, we propose that the government create working groups to develop recommendations to cover the various areas of the law (perhaps reflecting more or less the different chapters in the report). The working groups would include representatives of the Department and NGOs, and others as relevant depending on the subject area. They would work from the report, the input from the consultations, the comments of the Department and other sources as appropriate.

For such a process to succeed in producing something that could win wide support, it would need to respect certain principles. First, the process would need to be transparent, so that it was clear to all what was happening. Second, sufficient time should be allocated to the process. The same rule applies to making legislation as to refugee determination: it is more important to do it right than to do it fast. Third, there would need to be mutually agreed upon parameters so that everyone would have a common understanding about the process and the results. Fourth, the question of resources would need to be considered. NGOs, willing though they may be, cannot afford to assume all the costs.

A successful process will also need to include an opportunity for broad public input on government orientations before the tabling of any legislation. An opportunity, if limited, has been to given for people to comment the consultants' report. It is at least as important that there be an opportunity for public input on government proposals for changes before they are translated into legislation. Once a bill is tabled there is much less room for the government to respond to input.

Finally, we request that a gender analysis be conducted on proposals for legislative reform in consultation with non-governmental organizations, including the CCR.

2. General comments about the report

The report sets out a number of values and principles (Ch. 1) which are to guide the recommendations. This is commendable. However, it is not always clear that the principles do in fact inspire the recommendations. For example, one of the principles identified is responsiveness, defined as "customization of programs and services to individual needs" (p. 7). The virtually total removal of discretion in decision-making runs counter to this principle, since services and programs can hardly be customized to the individual's needs if the rules must be rigidly applied.

The report proposes radical changes to existing refugee, immigration and citizenship programs, without in many cases explaining why the current system needs to be overhauled, or why a completely new and untried system is to be preferred to a reform of the existing system. Often it is not clear and is not explained how exactly the proposals would be an improvement on what exists currently. On the other hand, in a large number of areas the current procedures are conserved, again without justifying reasons. This tends to weaken the coherence of the document and confuse the debate over the options it presents. We recommend that the strengths of the current system be identified and built upon.

The recommendations, in some cases very detailed, in some cases very general, raise many questions that may be beyond the scope of the report, but must nevertheless be carefully thought through, since the answers will affect whether the recommendations are desirable or even practicable. These include the questions about the costs of the recommendations.

One of the weaknesses in the current immigration legislation is its failure to incorporate Canada's international human rights obligations. In this respect we welcome the recommendation in Chapter 7 to broaden the definition of people deserving protection beyond the Refugee Convention definition. This is a very important and necessary recommendation, addressing the current failure of our system to ensure that Canada complies with its human rights obligations, notably the prohibition under the Convention Against Torture not to send anyone back to torture. However, international human rights instruments are relevant not simply to determining who needs Canada's protection but to the whole of our immigration and refugee programs. The Convention on the Rights of the Child, for example, sets out the standard for the treatment of children. It establishes the fundamental principle that calls for the best interests of the child to be taken into account in any decisions made involving a child. We call for this Convention - and other relevant instruments - to be incorporated into not only any new Protection Act but also the Immigration Act.

The recommendation to create a separate Protection Act represents a positive recognition of the difference between refugees (involuntary migrants) and immigrants (voluntary migrants) and takes seriously our international human rights obligations. However, the objectives of the Protection Act are framed in somewhat negative terms, for example suggesting (in c) that we uphold our obligations by excluding from protection those who don't deserve it, rather than emphasizing the objective of protecting those who need protection. Furthermore, the separation of refugee and immigration issues is compromised by the fact that many aspects of the treatment of refugees would be dealt with under the Citizenship and Immigration Act (for example, all the enforcement provisions, Safe Third Country measures, interdiction provisions). We are also concerned that the family class provisions are blind to the fact that they - and quite likely also their relatives - are refugees. We believe that the provisions for family sponsorship should have sufficient flexibility to be able to respond to refugees, who may not be able to meet income requirements or whose education may have been interrupted by war.

The report rightly recognizes the links between immigration and citizenship. These programs are nevertheless distinct and deserve separate legislation with distinct preambles and objectives. We therefore do not support the proposal to combine these two Acts.

The report overall pays very little attention to gender. Hidden away in chapter 9 (on reviews) is an acknowledgement of this deficiency. "In the time available, we were unfortunately unable systematically to check the effect of our recommendations on equality between the sexes. Citizenship and Immigration Canada should undertake such an analysis before formulating its policy, revising the Act and Regulations and establishing its programs." (page 126). We emphasize that gender analysis must be conducted while the policy is being developed, and not after decisions have already been taken.

We welcome the report's recommendations with respect to transparency, accountability and clarity in the laws and regulations. The need for reform in these areas is urgent. It is disappointing that the report did not make a concrete recommendation to address the lack of external oversight on immigration enforcement officers.

The report's recommendations in the area of enforcement amount to a serious erosion of rights. The provisions for detention and automated tracking are of great concern, particularly in their application to refugee claimants. We believe that non-citizens should receive equal treatment with Canadian citizens in comparable contexts.

3. REFUGEE PROTECTION

A. The race to the bottom

Around the world many countries, particularly in the West, are closing their doors to refugees. The UNHCR's 1997-98 State of the World's Refugees report paints a disturbing picture of the battery of measures that have been introduced by governments of industrialized states to prevent or deter refugees from seeking refuge on their territory.

Should Canada take a leadership role in refugee protection or join the other countries in a race to the bottom? In our view, the report SAYS the former, but DOES the latter.

According to the Advisory Group, Canada must "lead by example" (page 82), without any precise vision of what concrete form this leadership would take. Yet the existing refugee determination system, which has been recognized internationally as a leader in the field, is to be jettisoned, and replaced with a system which in many ways copies inferior measures used in other countries.

The report contends that the current protection model must be abandoned. It does so without presenting clear arguments why it should be abandoned and relies on some questionable (or false) premises. We believe that, unless and until a better model is securely in place, the current model must be energetically and scrupulously safeguarded. The alternative is to erode refugee rights.

The original purpose of the Refugee Convention was not (as is implied in the text) to ensure responsibility-sharing with respect to refugees (p. 89). On the contrary the Convention speaks only of each state's individual responsibilities.

The goal of international cooperation in protecting refugees and sharing responsibility between states is certainly to be encouraged. Canada, because of its comparative wealth, the relatively small number of refugees we receive and the respect in which we are held, has particular obligations to contribute generously towards international efforts.

Responsibility-sharing must be motivated by concern for refugees' interests and fully respect refugees' rights. Unfortunately, we find the concept too often cynically used by states simply as a screen behind which they seek to abdicate their individual responsibility not to refoule refugees.

The report states that Canada cannot continue to fulfil its obligations without adopting a Safe Third Country concept (p. 89). This statement is unsupported by statistics (which do not show an increase in refugee claims) or by any other convincing argument.

It is unclear what the evidence is that Canada is receiving asylum seekers "frustrated by safe third country bars" (p. 89) in other countries. If the safe third country concept was working, asylum seekers would be able to find protection in the country to which they were returned and would not need to come to Canada. In fact many refugee claimants in Canada who have passed through other countries come to Canada because they are unable to receive protection there. For example, Algerians are routinely refused in Europe on the grounds that they are fleeing non-state persecutors, based on an interpretation of the refugee definition that is incorrect but nevertheless applied in several European countries.

In fact, Safe Third Country measures have been tried, notably in Europe, and have been shown to lead to chain removals of claimants, sometimes resulting in a refugee's ultimate return to the country of persecution. Safe Third Country measures have been only one of an arsenal of provisions used by states to deter and exclude refugees. It has never been shown to be a device for increasing protection for refugees.

On February 5, 1998, the Minister of Citizenship and Immigration announced the abandonment of negotiations between Canada and the USA on a proposed memorandum of agreement on the allocation of refugee claims. Considerable energy has been invested by the Canadian government in the last few years to secure this agreement which would have resulted in the US being named a safe third country. The failure of these negotiations highlights the practical difficulty of the safe third country enterprise.

We note that the report makes the safe third country rules part of the Citizenship and Immigration Act, rather than part of the Protection Act (Rec. 95). This undermines the claim that the rules are inspired by protection concerns.

In this context, we note that the section of the report (Ch. 8, pp. 117-8) dealing with interdiction measures completely fails to address their very important impact on refugees exercising their human right to seek asylum. Controls imposed by carriers as a result of sanctions are blind to whether the person is a refugee. They lead to refugees being imprisoned or returned to persecution. The UNHCR 1997-98 State of the World's Refugees report recognizes states' legitimate interest in controlling the movement of people onto their territory but notes "Carrier sanctions, which have been consciously employed by states as a means of avoiding those obligations, are not consistent with international refugee and human rights law" (p. 193). The report also points out that carrier sanctions have led to the growth in the production and use of forged documents. The report recommends that fines only be imposed if carriers have shown negligence and that carriers not be fined if a passenger is ultimately accepted as a refugee.

Alternatives

Canada should play an international leadership role by ensuring fair refugee determination, a generous resettlement program and full respect of all its international human rights obligations towards all seeking Canada's protection. It should actively promote these values in Canada and abroad.

We recommend that Safe Third Country provisions be struck from Canada's legislation and that Canada encourage other states to follow suit.

We recommend that no carrier sanctions be imposed when the passenger makes a refugee claim.

B. International standards

Canada prides itself on being an international leader in the human rights field. As a matter of consistency we must apply international human rights standards to our immigration and refugee programs. This we have not always done - and do not always do today, as the report recognizes. It makes a long overdue recommendation (Rec. 87) that, in considering whether a refugee claimant needs Canada's protection, we respect our full human rights obligations. These obligations go beyond the 1951 Refugee Convention, and include instruments such as the Convention Against Torture which obliges us not to send anyone back to torture. The full range of human rights obligations need to be respected not only in the context of protection determination, but in all aspects of the refugee and immigration programs.

The broadening of the definition of persons to be protected provides an opportunity for incorporating instruments relating to women's rights in the definition. Unfortunately, there is no mention in the report of the Gender Guidelines: it will be important to ensure that this advance is not lost.

Having recommended that we respect our human rights obligations, the report however goes on to propose a series of measures that would violate international standards. For example, under the Convention Against Torture (to which Canada is a signatory) the obligation not to return to torture is absolute, no matter how undesirable or despicable the person may be. Under the proposed model some claimants would continue to be ineligible to have a determination on the basis of criminality or security concerns (Rec. 97). Similarly, the report conceives "threats to security" being excluded from non-refoulement protection (p. 94) and exclusions are applied to the pre-removal risk assessment (p. 120).

Furthermore, it is difficult to understand how the same criteria could be used in Canada and overseas (Rec. 87), since a different standard must apply where there is a question of refoulement. Thus Canada must not send anyone back to torture, but we are not obliged to resettle everyone who is at risk of torture.

While we enthusiastically support the incorporation of criteria from other human rights obligations into Canada's legislation, it is important that this not be at the expense of any weakening of our commitment to the 1951 Geneva Convention Relating to the Status of Refugees, which remains the central instrument for those claiming another state's protection from human rights abuses. In this respect, the report is troubling, as it in various ways implicitly devalues the 1951 Convention.

The according of priority to those "most in need" (Rec. 88) is one area where attention needs to be paid to international standards. On the face of it, protecting those most in need is a laudable goal, one shared by the Canadian Council for Refugees. We ourselves have made a significant commitment to this goal, through the CCR-UNHCR Special Needs/Women at Risk Refugee Sponsorship Project. This project actively sought sponsors for refugees with special needs who would not otherwise have been able to resettle in Canada.

The "most in need" principle is welcome insofar as it corrects the current tendency to select refugees for resettlement according to their immigration prospects rather than their need for protection. In this regard, CCR applauds the recommendations in the report to eliminate the requirement that refugees applying for resettlement from overseas demonstrate that they would be likely to successfully establish themselves in Canada (Rec. 88) and the exemption of them and their dependants from the excessive cost component of the medical inadmissibility provisions (Rec. 116). We have long identified the "successful establishment" criterion as one of the key weaknesses in Canada's overseas refugee program, since it prevents Canada from offering a home to some refugees, notwithstanding their great need. The provision discriminates in particular against women. Similarly, the excessive cost criterion has led to Canada discriminating against refugees who are disabled or have other health concerns, despite the fact that these very concerns may well add to their need for resettlement.

Having said this, we note with concern that the "most in need" concept remains ambiguous and undefined in the report. If used as a rule or underlying principle, it is inconsistent with the Refugee Convention and other international obligations. We must not refoule any refugees, not just those "most in need" of protection. With respect to refugees in Canada at least, our international obligations mean that we cannot pick and choose.

There is also a danger of minimizing very real human need in creating hierarchies of need. While we would welcome a reorientation of Canada's resettlement program with a view to focusing on responding to the needs of refugees for protection and a durable solution, we could not support criteria which denied resettlement to refugees on the basis that their need was deemed not to be great enough.

We are also concerned that the report reinforces the myth that refugees overseas are somehow "more in need" and more deserving than those in Canada. It is completely counter to the interests of refugees to play off one group of refugees against another. A strong resettlement program is an effective way to protect and offer a durable solution to refugees who cannot make their own way to a country that could offer permanent protection. It must not, however, be offered at the expense of the protection of those refugees who come directly to Canada.

The Refugee Convention contains more than the principle of non-refoulement. It provides international standards regarding the treatment of refugees by states (some of which standards, Canada fails to meet, notably with respect to issuing travel documents and imposing fees). It is important that refugee status and the rights provided by the Refugee Convention not be eroded in favour of a more general protected status. If statuses are to be blended, all must be granted non-refoulement protection and at least the rights accorded refugees in the Refugee Convention.

C. Independence/quasi-judicial decision-making

The Canadian concept of justice is rooted in independent decision-making. This requires individual decision-makers with security of tenure, protecting them from pressure to make decisions based on external considerations. It also requires that these decision-makers work within a body whose only business is to make just decisions, insulated from influences which would undermine its independence.

The refugee determination field is particularly susceptible to pressures to interfere with decision-making, from foreign governments anxious to conceal evidence of human rights abuses, from Canadian commercial interests keen to maintain good relations with trading partners and from domestic public opinion that may react with prejudice to certain groups of claimants. If those responsible for making refugee determinations are to make their decisions purely on the basis of the need for protection of the individual before them, they must themselves be protected from all such pressures.

The Advisory Group argues that the Protection Officers in the proposed Protection Agency will be independent decision-makers (p. 84). This argument must fail to convince when we consider:

- as civil servants, Protection officers could be threatened with sanctions if they do not satisfy their superior.

- the Minister is to play a role in directing the Agency (p. 84). Even if, as the report argues, the Minister's guidance is in theory to be restricted to procedural matters, any role played by the Minister in the affairs of the Agency involves her in its decisions.

- the suggestion that the agency can be both independent and "sensitive to broader national imperatives" (p. 84) is self-contradictory. Independence entails being free from extraneous national concerns.

- the Protection Agency is to have a variety of responsibilities apart from refugee determination. Pressure from these responsibilities would undermine the independence of decision-making. For example, the role played by the Protection Agency in "compliance" monitoring would risk leading to Protection Officers approaching decisions from an enforcement point of view. Most importantly the proposed model would imply significant budgetary consequences to the Agency for every decision made, since the Protection Agency is to assume all social assistance costs of refugees until landing or removal (Rec. 104). Protection Officers would therefore most likely be under pressure, directly or indirectly, to take into account what it would cost the Agency to accept or refuse a claimant.

Since currently visa officers with no pretence of any form of independence from the Immigration Department make the decisions on refugee claims abroad, even the highly flawed Protection Agency would be an improvement in terms of independence. This advance can be read in conjunction with the report's recommendation (Rec. 92) to allow overseas claimants to have regulated or unpaid counsel attend interviews with them, representing the rejection of the current utterly unjustifiable policy of some visa officers to refuse admission at interviews to counsel.

The inadequacy of the report's proposals with respect to independence and quasi-judicial decision-making is more conspicuous when compared to what currently exists inland than to what has never existed abroad.

Canadian traditions of justice rely not only on independence but also on judicial or quasi-judicial decision-making. In the area of refugee determination as in other areas, the report rejects the judicial approach in favour of administrative decision-making. This is a profoundly important shift - yet strangely the report offers very little in the way of argument or explanation.

Where important rights of refugee claimants or other non-citizens are being decided, we believe that a judicial or quasi-judicial hearing offers safeguards that an administrative interview lacks.

The recommendations on the refugee determination system are driven by a strong emphasis on the need for greater efficiency and quicker decision-making. The proposal to replace the current independent quasi-judicial decision-making with a civil service administrative process is apparently motivated by this need for efficiency. But what confidence can we have that such a process would in fact be more efficient? The evidence from the Department's management of, for example, the post-determination risk review or removals from Canada hardly suggests that the civil service would necessarily manage the refugee determination system more efficiently than the Immigration and Refugee Board currently does.

We note with serious concern for many of the same reasons just given the report's proposals to replace the Immigration Appeal Division (Ch. 9) and the Adjudication Division (Rec. 126) of the IRB with a non-judicial, non-independent decision-making process. In our view, the report does not adequately justify the certain loss of the expertise, independence and fairness of the IRB in favour of the uncertain improvements in efficiency from new, uncosted bureaucracies.

Alternatives

We would propose retaining but reforming the Immigration and Refugee Board. The CCR would welcome an opportunity to participate in discussions on adapting the refugee determination process to increase quality and efficiency. Among the recommendations we would propose would be the following:

- A depoliticized appointments system should be created, with a transparent, effective mechanism for ensuring that candidates are selected and mandates renewed on the basis of their competence for the job. We believe that decision-makers selected for their competence would likely also prove to be more efficient.

- The IRB should be given the mandate to review claims for protection on the basis of risk other than that covered by the refugee definition. This review should be conducted after the refugee determination.

- Anyone making a claim should be referred immediately to the IRB. There should be no eligibility criteria. We note that few claimants are excluded in the eligibility process which has the effect of delaying the hearing. Moreover the eligibility criteria are inconsistent with the Refugee Convention (and the Convention Against Torture). Persons making a second claim after having been removed could have their refugee claim re-opened where there is new evidence.

- The Immigration Department should allocate sufficient resources to ensure that, where appropriate, it consistently raises issues of exclusion in the refugee determination.

- Refugee Claims Officers should be taken out of the hearing room and reassigned to case preparation and research and to expedited processing.

- Greater use should be made of the expedited process, perhaps with RCOs given authority to make positive determinations.

- Six months from referral to hearing should be established not as a rigid timeline, but as a benchmark. The claimant should have an enforceable right to a hearing within six months.

- A Refugee Appeal Division should be created within the Board, to which refused claimants could seek appeal on the merits.

- The IRB should be mandated to conduct pre-removal risk reviews.

 

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D. Overseas Protection Process

We welcome the report's recognition of refugee resettlement as an important means through which Canada can provide protection to refugees. Historically, this has been the principal route through which refugees find protection here, yet the needs of the resettlement program have tended to be neglected. Problems have long been unaddressed and numbers resettled are on the decline. The report's call for a greater focus on the overseas process is therefore timely.

Through its proposals to radically change the overseas protection process, the report implicitly recognizes the inadequacies in the current system and its inability to respond effectively to need. We agree with the diagnosis. Whether the specific recommendations put forward to address the problems are the best ones is however less certain.

Despite its declared objective of promoting the overseas process, the report is in fact much less detailed in its recommendations in this area than with respect to in-Canada refugee determination. It is not always clear how the proposals are to be interpreted.

We note also that the recommendations leave the overseas system inferior in significant ways to the in-Canada system. Although a greater degree of consistency is promised in the proposal to have the same Protection Agency and Protection officers responsible for determinations overseas and in-Canada, in terms of process the overseas system is the poor cousin. Those applying overseas can be refused based on a paper screening without even an interview and they do not have the right of appeal (Rec. 92).

The concern for speed of processing at each step in the in-Canada system is not matched by similar concerns in the overseas system (where it is only specified that decisions are to be rendered within 6 weeks). This would unfortunately suggest that the extremely slow processing might continue. Worse, it would likely result in resources being drawn away from the overseas system to enable the Protection Agency to meet its legislated obligations in Canada.

Despite its problems, the current resettlement program has important strengths on which efforts to improve should be built. The report is not as clear as we would like it to be in respect to elements that should continue. We believe that there should continue to be distinct government and private sector contributions, through the resettlement of government-assisted and privately sponsored refugees. Private groups should continue to be able to sponsor refugees through sponsorship agreements and to name refugees to be considered for resettlement.

An important principle for the non-governmental sector is the principle of additionality, by which we mean that private sector efforts are over and above the contribution of the government, which commits itself to the resettlement of a certain number of refugees.

This principle is undermined by the report's proposal to set limits on the annual numbers of refugees resettled from abroad (Rec. 16), effectively putting restrictions on the voluntary sector's response to refugees in need of resettlement and creating a situation where the more refugees the private sector sponsors, the fewer the government might resettle. We are firmly opposed to this capping of the generosity of Canadians towards refugees and are disappointed to see the reappearance of this proposal which was included in pre-published regulations in January 1997, but happily withdrawn from the final version after strong public opposition.

The role of non-governmental organizations in the resettlement program has been fundamental since its inception. There are already many instances of partnerships between government and NGOs. We welcome the report's recognition of the important role NGOs play. In developing proposals for the overseas processing, "best practices" from existing partnerships should be identified and included in any new initiatives. In this regard we note that an important forum for such discussions is provided by the NGO-Government Committee on the Private Sponsorship of Refugees, created in response to a CCR resolution.

NGOs are currently involved in the selection of refugees in the sense that private sponsors name refugees for whom they seek resettlement. In addition, NGOs both in Canada and overseas make informal referrals for both the government-assisted program and the joint assistance initiative. Having had the Department tell us on numerous occasions that they are unable to "find" enough refugees in need of resettlement, we are delighted to see the report encourage the Department to make better and more systematic use of referrals from NGOs.

However, having NGOs participate in final decision-making (Rec. 90) would involve a radical change from current practice. While there would certainly be some positive aspects to such a proposal, we are also aware of possible drawbacks to such a change in the NGO role. If this recommendation is to be followed up on, it will be particularly important to ensure that before any decisions are taken there should be an opportunity for broad-based discussion including potential stakeholders as well as existing partners in the resettlement continuum.

Alternatives

Overseas processing can be improved immediately without any legislative change. We must emphasize that the success of the program is closely tied to the availability of resources. The cutbacks of the last few years have taken their toll on the program.

The establishment of processing benchmarks for overseas sponsorships has been discussed for a decade. The 1991 National Consultation recommended a 6-8 month process standard. Commitment to this standard is long overdue. Actively seeking out and accepting as credible NGO and UNHCR referrals, dropping the requirement to demonstrate the "ability to successfully establish", accepting refugees on the basis of a paper screening, and continuing the dialogue with NGO partners to improve training and communications would make this benchmark quite feasible.

We recommend that there be an option to accept refugees on the basis of a paper screening, and in particular that UNHCR identified cases not be reinterviewed.

E. Timelines

We hold that justice, not speed, should be the cardinal principle in refugee determination. Certainly, working towards swifter refugee determination is an important goal, not least for the refugees who are currently suffering immensely because of the delays, both in Canada and awaiting resettlement overseas. However, rigidly enforced, narrow timelines cannot serve the interests of refugees - or of justice.

Recommendation 89 calls for conditions making it in the best interests of claimants to come forward as early as possible. It is far from clear what this means exactly. Are refugees applying overseas to be favoured over those making claims in Canada? If so, how could this be done without violating our obligations towards refugees in Canada? Or is it merely code for the severity of sanctions a claimant will face if she fails to comply, however meritorious the reasons for not doing so?

Refugees experience a wide variety of complex and difficult circumstances after fleeing persecution, which makes a mockery of simplistic rules based on timelines. Some refugees fly directly to Canada to escape persecution. Some are in Canada when a change of circumstances makes them refugees. Some spend months or years in precarious situations where they cannot claim refugee status before coming to Canada. Others are confused, misinformed, afraid and traumatized on arrival in Canada and do not immediately make a refugee claim. A fair refugee determination system must be able to take into account all of these circumstances.

This is not the case with the report's model, which proposes extraordinarily short deadlines for making a claim (3 days to present oneself to the Protection Agency, 10 days to "make the claim" - Rec. 101). If implemented this rule would lead to many needing protection being excluded, including survivors of genital mutilation, rape and torture. Women fleeing domestic violence would also tend to be badly affected by such a rule, since they are often not able to immediately explain their situation.

It is important to note that in the current system the IRB already takes into account delays in coming forward. Claimants are routinely asked to explain why they did not claim protection in countries they passed through or why they did not immediately claim refugee status on arrival in Canada. Their answers are weighed along with other evidence. This is fair; the report's inflexible deadlines are not.

The proposed arbitrary legislated timelines for the in-Canada process (Rec. 105: 6 weeks from claim to interview) are not consistent with serious efforts to get the necessary information. Claimants often need weeks if not months to feel secure enough to talk about traumatic events. Professionals such as psychologists, counsellors for survivors of torture and medical practitioners are often unavailable to meet with claimants, let alone prepare reports, for weeks. Research in or even about the country of origin or the issues involved in the claim is often time-consuming. While some cases are amply documented from the beginning and can be quickly given a positive determination, others will take a long time. Just refugee determination must take account of the complexity of the issues and be able to be flexible.

The proposed timelines are likely in practice to provide unworkable and might even be counter-productive in terms of processing speeds. Since it would be necessary to make some exceptions, we can envisage claimants frequently presenting arguments about why their case should come within the exceptions. Experience already shows us that it can be as time-consuming to hear the case for the exception as to look at the case on the merits.

While the report is anxious to impose short timelines in in-Canada refugee determination, delays in overseas processing are largely unaddressed. The report prescribes decisions within 6 weeks of the interview (Rec. 92), but says nothing about how long applicants may wait for the interview, nor how long the processing for landing might take after acceptance by the Protection Agency. This would seem to contradict the report's recommendation that refugees be encouraged to apply at the earliest opportunity (Rec. 89). We note that delays in overseas processing have consistently been one of the CCR's most significant criticisms of Canada's refugee resettlement program. We suggest that a referral to arrival processing period of six months be established for overseas claims.

F. Right to appeal

The CCR opposes the proposal to deny to overseas refugee claimants the right to an appeal if their application is refused (Rec. 92). The lack of an appeal overseas is inconsistent with the advisory group's stated intention in Recommendation 89, to promote claims overseas where possible; it is also inconsistent with the integrated system concept stipulated in Recommendation 83. The lack of appeal abroad is not justified by the group's distinction between "voluntary" processes overseas and "obligatory" processes inland: the essence of the matter is protection, which demands that a comparable mechanism be in place overseas as inland to right wrongly made decisions. The need for prompt appeal is accentuated by the proposal at Recommendation 167, which is opposed absolutely by CCR, to impose a leave requirement on judicial reviews of visa officer decisions.

With respect to inland claims, the CCR agrees with the advisory group that an appeal on the merits of rejected claims is necessary, particularly in light of the proposal to reduce the first level hearing to a mere interview before a single decision-maker. The lack of appeal is one of the fundamental flaws in the current refugee determination system. It is profoundly unfair that a country that provides opportunities for appeal for matters as trivial as parking tickets does not offer an appeal on the merits to refugee claimants whose life may be at risk.

As presently drafted, Recommendation 108 does not, however, achieve the goal of a meaningful, fair appeal. In order to do so, it would need at a minimum to provide for an appeal body truly independent of government, the Minister and the division making the original decision. An oral hearing must be provided as of right, especially where credibility was an issue in the negative decision. The CCR recommends that in conjunction with these revisions, Recommendation 98 be rewritten to eliminate the proposed extension of the 90-day period to one year and instead allow for reopening of a Convention refugee claim at any time where there is new evidence.

Also of serious concern are the short timelines. 15 days to give notice and 15 more days to provide arguments are inadequate to analyze a decision, prepare arguments and collect supporting evidence. In addition, the imposition of a 6 weeks timeline within which the Appeals Officer would have to render a decision would militate against a careful evaluation of the submissions, including if necessary a hearing. Unless considerable resources are given to the Appeals Division, we can only imagine that Appeals Officers would be under pressure to cut corners in order to meet the 6 week deadline.

The CCR strenuously objects to the suggested gutting of the cessation provisions contained in Recommendations 110, 111 and 112, which leaves refugees without right of appeal. Revocation of status facilitates refoulement and consequently the possibility of risk to life, liberty or security of the person. Revocation based on misrepresentation involves almost invariably the issue of credibility. Such decisions should only be made following a hearing which complies with the requirements of fundamental justice, including at a minimum full disclosure of the case they must meet, right to counsel and the right to call and cross-examine witnesses and present other evidence.

As earlier noted, the report proposes the elimination of the Immigration Appeal Division. This is of significant concern in light of the recommendations in Chapters 8 and 9 which propose, among other things, the conflation of enforcement and status determination functions raising issues of bias in the decision-maker, a process which does not meet minimum standards of fairness, and the effective elimination of equitable grounds of appeal. These recommendations take away rights of appeal currently held by refugees and restrict unnecessarily the scope of matters which will be reviewable in future. The report does not offer any comment or justification for its failure to provide rights of review for Convention refugees (holders of protected status) facing removal from Canada. The CCR opposes any diminution of the present rights of appeal of Convention refugees (including those who have gone on to become permanent residents). We call for the rights of appeal taken away under Bill C-44 to be restored.

G. Other comments

Eligibility provisions

The recommendation to move some of the eligibility provisions to within the determination process (Rec. 97) is positive. However, we regret that the report fails to consider whether the current eligibility provisions deserve to be retained. We note in particular that the eligibility provisions are inconsistent with many of our international obligations, including the Geneva Convention Relating to the Status of Refugees and the Convention Against Torture. We recommend abolishing the eligibility provisions.

Determination process

The proposed process is in many ways unrealistic and even dangerously naive (for example, in suggesting that reception clerks can recognize on sight signs of torture - p. 91).

Claimants are to "make their claim" within 10 days and before being referred to counsel or NGOs or given access to social assistance (p. 92). It would appear that "making a claim" would be equivalent to completing a Personal Information Form (PIF), a process that requires more time and the involvement of counsel. The same institution that will make the determination is apparently to counsel the claimant in the preparation of the claim. This is a completely inappropriate conflict of interest.

The report's assumption that it is easier to make good determinations overseas is not justified by experience to date (p. 87).

Landing

We are pleased with the report's explicit rejection of the idea of giving only temporary status to refugees. The report recognizes that offering refugees permanent residence is in the best interests of both refugees and society as a whole (p. 95).

We also welcome the recommendation that refugees be exempted from processing fees (Rec. 114).

Right of Landing Fee

The CCR is disappointed that the Advisory Group did not take the opportunity to make a clear recommendation (Rec. 17) in favour of abolishing the Right of Landing Fee, despite their acknowledgement that there is no clear rationale for it. The CCR is opposed in principle to the Right of Landing Fee, on the grounds that it imposes an additional tax on newcomers, who already pay the same taxes as others in Canada, discriminates against the poor and those from parts of the world where incomes are smaller, and inhibits integration, by creating a debt burden on newcomers. We are particularly opposed to the tax in the case of refugees, who in many cases have already lost much and have not chosen to migrate, but rather have been forced to flee.

Imposing the Right of Landing Fee on refugees, even where a loan program exists, is in contradiction with the report's stated goal of offering protection to those most in need. It is completely inconsistent to resettle refugees without reference to their ability to successfully establish, and then burden them with a debt which they may have no prospect of repaying. This problem affects in particular single women with children. The Right of Landing Fee furthermore contravenes our obligations under the Refugee Convention. It is a national embarrassment: as the UNHCR has pointed out, Canada is the only country to impose such a fee on refugees and the Canadian Human Rights Commissioner has expressed his strong concern. This is the time to repeal the ROLF.

Identity documents

Recommendation 109, calling for refugees without satisfactory ID to wait three years before applying for landing, is only a very small improvement on the intolerable situation that currently exists. We call for the removal from the Act of the ID requirement (A46.04(8)) introduced in 1993. It has never been shown that the previous situation where ID was not required caused any serious problems. Women and children are disproportionately affected by this measure since they tend to have fewer identity documents than men.

Advisory Committee on Country Conditions for Removal

We welcome the recommendation (Rec. 151) to make the ACCCR process more transparent (a very necessary reform).

However, people not removed because their country is on the moratorium list appear to remain in perpetual limbo until they can be removed, since there is no humanitarian and compassionate provision nor other program by which they could be landed. This is completely unacceptable.

Pre-removal risk

It is good to have risk reviews done close to removal, by a specialized protection officer and with reference to international obligations (Rec. 152).

However, the short timelines for submitting arguments are not realistic and the definition to be used is not clear (although it is specified that risk must be in all parts of the country). Again those found to be at risk have their removal stayed but then appear to go into perpetual limbo.

The criteria used for pre-removal risk should be the same as applied in the protection determination. Recognition of risk in the pre-removal review should lead to protection status.

4. COST

Many of the report's recommendations are motivated by a concern for cost-efficiency, an entirely understandable preoccupation in the current climate. It is therefore noteworthy that the report does not provide any analysis of the anticipated costs of their recommendations. The authors titled the report "Not just numbers" out of respect for newcomers who must be treated as people not numbers. We would argue that numbers, including numbers of dollars, are nevertheless significant. We do not have access to data that would allow us to estimate costs, but we can guess that the matter of resources would make some of the proposals unrealistic and would subvert others from their intended objectives.

For example, ensuring that the in-Canada determination process moves extremely fast will require considerable resources. If by law interviews are to be held within 6 weeks and decisions rendered within another 6 weeks (Rec. 105 & 107), there will have to be enough Protection Agency employees to do the necessary preparation of the case, and enough Protection Officers to conduct the interviews and write the decisions. Since it is impossible to know in advance how many claims will be made, the Protection Agency will need to be staffed taking into account the possibility of larger than expected arrivals of claimants.

Because much more rigorous timelines are imposed on the in-Canada system than the overseas system, demand for resources in-Canada will have to take precedence over the demands overseas. This is inconsistent with the report's desire to reallocate resources to overseas selection.

Recommendation 104, which makes the federal government responsible for all income assistance and health care to the point of landing or removal, is barely commented upon within the report. It would have significant fiscal implications for the federal government, particularly since there are large numbers of refugees who are unable to land (e.g. because of lack of "satisfactory" identity documents or inability to pay the Right of Landing Fee). On the other hand, it might have the welcome effect of encouraging the government to take a positive attitude towards recognizing refugees' existing documents.

Other examples of recommendations with unexplored fiscal consequences include Recommendation 120 which dramatically broadens powers of detention and the proposed establishment of high-profile, easily accessible Protection Agency offices at ports of entry (pp. 91-92). The costs of institutional reorganization involved in closing down the IRB, and establishing the Protection Agency and the new divisions within the Immigration Department would also surely be very considerable.

In relation to costs, we note our opposition to the expectation implicit in the report that immigrants (and refugees) should cover all the costs of immigration. Newcomers are taxpayers and contribute towards the costs of government as do other Canadians. The immigration program is part of the overall range of government programs and should be financed in the same way. It is inconsistent to argue, on the one hand, that the immigration program should be driven by Canadian national interests and immigrants selected according to what benefits Canada most, and on the other hand that immigrants should assume all the costs as if they are the sole beneficiaries.

5. FAMILY REUNIFICATION

The report's chapter on Family (Ch. 5, subtitled "Essential for Success") opens with the words of the Universal Declaration of Human Rights recognizing the family as the natural and fundamental unit of society (p. 42). In this fiftieth anniversary of the Universal Declaration, it is important to remind ourselves of this essential principle. We welcome the report's expression of commitment to the principle of family reunification and to the State's role in protecting, even "nourishing" the family. These commitments we wholeheartedly endorse.

In terms of family definition, the report recommends a greater flexibility than is currently the case. This would help to reduce some of the anguish caused today by a very narrow definition that does not reflect many people's situation. The report includes in the concept of "spouse" common law spouses and same sex partners (Rec. 32), recognizing that not all spouses have a marriage certificate. This recommendation would allow Canada to respond to those people from parts of the world where traditional forms of marriage involve ceremonies but no paper certificates.

We similarly welcome the recommendation (Rec. 33) extending the age of sponsorable children to 22 years. As the report notes, this better reflects the experiences of many families, who currently face the terrible dilemma of leaving behind young adult children. This is particularly difficult for refugee families, who are fleeing persecution, and for from parts of the world where young people, especially young women, do not generally or cannot safely live on their own before marriage. For such families, even young adult children of 22 years and older suffer serious consequences as a result of the age bar.

Thirdly, the flexible Tier 3 definition (Rec. 40, allowing the sponsors to identify family members of most importance to them) reflects the diversity of people's family relationships. For some, an aunt may be the closest relative, for others siblings, for others a cousin. The narrowing of the family class in the last few years, including notably of the assisted relative class, has had negative consequences for those wishing to be reunited with family. We support the broadness and flexibility in the proposed definition, which is more responsive to individuals' situations and desires.

Although there is flexibility in the definitions of family member, the creation of three tiers with increasing demands in terms of education and language is not itself flexible enough to respond to many individual situations. So, for example, someone wishing to sponsor her sister, and having no other close relative with whom she could be reunited, might well be unable to proceed because her sister did not meet the education and language requirements. The problem is particularly acute for refugee families, where the sister to be sponsored may well be at risk. Her education may have been interrupted by war.

In terms of processing, the recommendation (Rec. 44) allowing immediate family to come to Canada for processing is consistent with the principle of family unity and is in fact long overdue. It is completely unacceptable that husbands and wives, parents and young children should be kept separated through months or even years of processing, as is routinely the case today.

However, while family class spouses and children are allowed to come to Canada immediately, the report as written would appear to have dependants of refugees recognized in Canada processed overseas. This is perverse. Not only do refugee families have the same rights to family unity as anyone else, they also have additional protection concerns that should serve as an extra argument for having them come immediately. Family members of refugees are often subjected to the same persecution that forced the refugee to flee; often they are living in hiding or in a precarious situation in a country of temporary refuge.

The Canadian Council for Refugees' Task Force Report on Refugee Family Reunification (July 1995) gave an extensive overview of the problems leading to delays in family reunification for refugees, as well as outlining the serious impact on all the family of the long separation. We urge the adoption of report's central recommendation: that the immediate family of refugees be granted "derivative" refugee status and be allowed to come to Canada immediately for processing here.

The proposed reduction of the length of sponsorship for spouses and children to 3 years (Rec. 37) is very positive. It recognizes the unhealthy strain put on relationships by long-term financial obligations, increasing the potential for violence within families.

The recognition of the need for provisions to address domestic violence within sponsorship (Rec. 42-43) is welcome. However, Recommendation 42 proposes a heavy burden of proof which many women in abusive relationships will likely not be able to meet. Furthermore, the report does not address the situation of women where there is violence before they are landed (a situation which would be even more common in the proposed model where sponsored spouses are regularly processed in Canada). Since the report does away with humanitarian and compassionate consideration, women in abusive relationships and not yet landed would be faced with a choice of remaining in the relationship or being removed from Canada. The latter choice may be extremely difficult or even dangerous if they come from a culture where women who leave their husbands are not accepted.

Family unity is a basic principle to which the advisory group subscribes, yet this principle is gravely undermined by the report's recommendation that only those who are self-sufficient may be reunited with their families (Rec. 37). It is in our view unconscionable that anyone should be denied reunification with spouse or children on the basis of income or lack of income. Those affected would include those past retirement age, those too sick to work, and single parents at home with their children. The ban on sponsorships where the person has been on welfare during the past 12 months would mean that even where a sponsor was able to get a job, he or she would be forced to accept a further year's separation from the family members. This does not show respect for the principle of family unity.

Where the person concerned is a refugee, perhaps having been selected on the basis of being most in need, the no-welfare requirement confounds protection concerns with immigration concerns, despite the report's emphasis elsewhere on keeping the two separate. Similarly, the provisions relating to levels of education and fees for language training are completely inconsistent with the protection emphasis of the report. As they stand, the report's recommendations would have refugees resettled on the basis of need, without reference to whether they will successfully establish, and then prevent them from reuniting with family members on economic grounds.

Also of concern is the increased financial burden where family members don't speak English or French. Sponsors will need to pay processing fees, right of landing fees, as well as language training fees (Rec. 41). The accumulation of fees represents real barriers to family reunification for those unable to pay. For others the debt burden is an impediment to integration.

The requirement that Tier 3 family members have secondary education would discriminate against people from parts of the world where access to education is limited and people whose education has been disrupted, for example by war.

 

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6. LANGUAGE REQUIREMENTS

We are opposed to language requirements acting as a bar to immigration. Proficiency in an official language is rightly encouraged, through the awarding of points, for what are presently independent category applicants. There is room in any restructured model to reward official language ability. Given most immigrants' desire to learn an official language and the practical requirement of doing so in order to function in Canadian communities, there is no justification for imposing a before-arrival requirement for language proficiency on dependants of independent applicants or non-independent category applicants or their dependants.

Canada's history has shown how the country has gained from new Canadians of a wide diversity of origins, many of whom spoke neither English or French before coming here. We believe that we must honour that history and remain open to the world at large, by welcoming immigrants without exclusion on the basis of language.

Furthermore we are opposed to the imposition of any fees on English or French language classes for immigrants. Many second language teachers question the feasibility of establishing the type of language proficiency assessment assumed possible by the authors of the report. Even if such a test could be established, extrapolating from a person's results on it the appropriate language tuition fees necessary to bring the person up to whatever standard is imposed would be exceedingly difficult. The report, shrewdly perhaps, simply ignores these concerns. It also fails to take proper notice of the benefits Canada enjoys from the education, training and experience that immigrants bring with them, at others' expense.

We also note that accessible language instruction is important for immigrants and refugees, not only as a means of learning English or French, but also as a means of learning about life in Canada. Studying the language in the home country is quite different from studying it in Canada. Students benefit from the interactive class settings, go on field trips and get orientation to services and programs. The classes are often a significant step on the road to independence and integration.

Helping immigrants to learn our languages is the responsibility of society at large, the ultimate beneficiary of the contribution that the immigrants will make. For confirmation, one need only look to recent reports confirming the net contribution immigrants make on the no-frills question of tax paid versus services received or the outperformance by second language students of native-speakers in school in B.C.

7. CITIZENSHIP AND INTEGRATION

Questions relating to citizenship were not part of the advisory group's mandate, which related to the Immigration Act. The Canadian Council for Refugees, like presumably many other groups, therefore did not include comments on citizenship in its submission.

The lack of consultation on this question strikes us as particularly troubling given the profound implication of the advisory group's recommendations. They propose that we select immigrants on the basis of what we desire in our citizens. Yet it would be misleading to suggest that there is a consensus among Canadians about what kind of citizens we should be looking for. This discussion is short-circuited in the report, which appears to assume that the answer is self-evident.

For our part, we believe that Canada should not require more of immigrants becoming citizens than we require of native-born. In this respect, we must object to the proposed requirement (Rec. 31) that prospective citizens meet two out of four criteria (employment, study, volunteer/community participation, family care). These are not requirements we make of native-born Canadians. In addition, the requirements would be difficult to implement and would discriminate against some people, for example full time caregivers who do not have time to be active outside the home.

The report also appears to exclude children (anyone under 18 years) from becoming citizens (Rec. 31). Since there is no text explaining this, we must wonder whether the advisory group intended to exclude children as part of a family application or in humanitarian situations. We hope that this is simply an oversight, since such an exclusion would be discriminatory, would impede integration and would cause serious difficulties for families who would be divided by citizenship.

The report presents citizenship as an important step in an immigrant's integration. We welcome the report's strong emphasis on integration, the recognition of an enduring federal role in settlement services and the call for adequate funding for settlement services from the federal government (Rec. 24).

Nevertheless, we have some hesitations about the report's vision of integration. As the authors themselves note (p. 13), 80% of recent immigrants become citizens. This seems to us to be a fairly high percentage and raises the question of why the report sees the need for what almost amounts to coercive measures to encourage immigrants to take out citizenship (by making landed immigrant status more difficult to live with). Taking the permanence out of permanent residence (p. 38, Rec. 29) furthermore undermines the goals of integration: it would create a sense of insecurity and leaves us with the prospect of more people being unwillingly stripped of status (because for example they have gone to nurse a sick relative) or being unable to travel outside Canada because they have not filed income tax returns.

We note that the report makes little or no mention of multiculturalism in relation to integration, raising questions for us about the authors' notion of integration. In our view, integration is a two-way process, where Canada adapts to newcomers at the same time as the newcomers adapt to Canada. This entails an appreciation of and support for the cultural values and strengths of new communities. It also means that Canadian institutions are responsible for making themselves sensitive to newcomers. We are concerned that the report shifts the balance of effort in adaptation too far towards the newcomers alone.

We must also emphasize the need for caution in the proposed research and data collection on success and failure in integration, of all classes of immigrants, including refugees (p. 20, p. 35). These are difficult and sensitive areas. As long as we do not have a consensus on what "successful" integration is, and what the indicators would be, we have serious reservations about the proposed data collection.

Successful integration depends on the existence of an open, welcoming community. Xenophobia and racism are blights on the Canadian landscape that impede integration. The report makes some strong general statements (p. 9-10) on myths about refugees and immigrants. We would go further in asking for a more meaningful and concrete commitment from the federal government to be actively combatting myths. This public education work is undertaken by NGOs, including the CCR, but there is a particular role to be played by the government. We note that this requires more than simply publishing fuller data, as recommended by the report. Such data is open to all kinds of interpretations and misinterpretations, and can be used to reinforce myths rather than rebut them.

The need to promote integration should be a key consideration in the formulation of policies. We note that several of the report's recommendations would, in our view, have negative impacts on integration. For example, making refugees without satisfactory identity documents wait three years for landing and the continuing imposition of the Right of Landing Fee run counter to the goal of integration. Similarly, the proposed enforcement measures, including intrusive surveillance of refugee claimants and others, would marginalize and alienate newcomer communities, thus impeding integration.

8. COMPLIANCE

The CCR starts from the premise that non-citizens deserve equal treatment with citizens in the kinds of law enforcement measures used against them. We mean by this that rights and protections offered non-citizens should correspond to the rights and protections offered citizens in comparable situations. This is a matter of basic respect for the non-citizen's rights as a human being.

We have for many years raised concerns about Canada's immigration enforcement laws and their implementation, particularly in the area of detention. The right to liberty is a fundamental human right, yet those detained under the Immigration Act find their right to liberty weighs very little in the balance.

We are therefore extremely disappointed to find that the report erodes still further the rights of people without permanent status in Canada. The recommendations tend to criminalize and dehumanize non-Canadians. They run completely counter to the integration goals of the report.

Of particular concern are the proposals regarding detention (Rec. 120) and automated tracking (Rec. 125), possibly via biometric cards.

The detention provisions (Rec. 122) reverse the burden of proof, calling for automatic detention if the person has failed to comply with any of the conditions of provisional status. This would mean detaining the person first and asking for explanations later. Reviews of detention decisions are no longer by an independent adjudicator.

We are particularly concerned about the effect of these provisions on refugee claimants, who should not normally be detained. Refugees fleeing human rights abuse come to Canada to find asylum from persecution. We need to treat refugee claimants in a way that takes this fully into account. Yet the report makes no concessions for a person's status as a refugee claimant.

Among the conditions that refugee claimants would be obliged to meet to avoid detention are applying for a passport from their country of origin and being likely to appear for removal. To require a refugee who is fleeing persecution from his or her government to ask for a passport from that government is inconsistent. To do so immediately upon the claimant's arrival, imposing detention for non-compliance, is absurd. Similarly, how can one expect a refugee to sound enthusiastic about removal? Refugee claimants would be effectively ask to undermine their own claim to refugee status.

Recommendation 125, which proposes automated tracking, is intrusive and demeaning. No tracking measures should be imposed on non-Canadians that we as Canadians would not tolerate for ourselves. Privacy of personal information must be scrupulously respected.

Alternative

We recommend that new enforcement provisions be drawn up with reference to enforcement provisions in other comparable domestic and international legal contexts, with a view to ensuring that that non-Canadians receive equal treatment with Canadians.

9. CONCLUSION

We are aware that there are many other points in the report that could be commented, as well as omissions that ought to be rectified. We are however relying on this not being the last opportunity to participate in the process to develop new refugee and immigration legislation. We look forward to discussing how we can achieve laws that respect human rights and are efficient, laws that are founded on and conform to principles that we can all endorse.

 

Mar 1998