CITI Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, February 19, 1998

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[English]

The Chairman (Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.)): Although we need a quorum of nine in order to conduct official business at this committee, apparently we don't have the nine. I am going to start the meeting, however, and continue from yesterday, and have our witnesses make their presentations pursuant to Standing Order 108(2), consideration of recommendation 155 of the report of the Legislative Review Advisory Group entitled Not Just Numbers: A Canadian Framework for Future Immigration, particularly issues relating to removal and detention.

Yesterday we had two models in operation: designated time periods—ten minutes or five minutes, whatever it was—and then during the meeting we also had a free-for-all. In other words, when a concept was being developed by one of the witnesses and also a questioner, other people were permitted to zero in and raise any other question or concern pertaining to the concept being delivered.

What I would like to find out from the members today is whether they want to go to the formal scheduling that we have established in this committee, like ten minutes and so forth, or to use a more open model where we can glean as much information about an area of concern by having spontaneous questions raised by anybody—it doesn't make any difference in what order—when a concept is being developed. Can I have some indication, without any long deliberation from the committee members, which of the two models you would prefer in light of your experiences yesterday?

Ms. Louise Hardy (Yukon, NDP): I liked it when it was open.

An hon. member: That's fine.

The Chairman: All right. Could we have an indication from both sides?

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): Sure, Mr. Chairman, as long as it's fair.

The Chairman: Oh, yes. I've got the big stick here.

All right then. The meeting is open. Let's go ahead. We'll start with anyone who wants to.

Mr. Greg Fyffe (Assistant Deputy Minister, Policy and Program Development, Department of Citizenship and Immigration): We do have some opening remarks.

The Chairman: You have opening remarks?

Mr. Greg Fyffe: What I would like to do, with your permission, before we go to the open, is to make a couple of comments about what we're going to provide to the committee.

Susan Leith is prepared to take you through some of the process and give you a recap of the material we are in the process of preparing for you, and Mr. Cochrane will take you through this chart. I think the committee wanted that base of understanding of the system, which we would be happy to give you before we get to the open session.

The Chairman: Very good. Proceed.

Mr. Greg Fyffe: Okay. Mr. Chairman, you've already had a presentation on how the system works. There was some information in that document that would be very useful to you. If there are members who don't have that presentation, we would be pleased to give you another copy. We would also be pleased to come back at another time with a similar kind of very detailed step-by-step briefing, if the committee wants.

We have also distributed today the section from.... You asked about immigration and citizenship, the enforcement part. We've also given you a chart on the refugee process and how that works. Mr. Cochrane will take you through that.

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Susan Leith will take you through some of the information on enforcement. Also, as I said, she'll describe to you some of the material we're preparing for you and getting translated. We'll have it prepared shortly for you. If I could just underline that if you need a much more detailed technical briefing on any part of this, perhaps we can come back to that. But we would be more than happy to do that.

There is one question I would like to answer in a preliminary way from what came up yesterday; we will come back with a further breakdown. This is the question asked about the number of people who were involved in enforcement. The approximate number is 550. But we will come back to you with a detailed breakdown on who those people are and where they fit in.

With that, I'd like to ask Susan Leith to go through the process with you.

Ms. Susan Leith (Director, Investigation and Removal, Enforcement Branch, Department of Citizenship and Immigration): In terms of that breakdown, we will also provide a brief description when we indicate a port of entry office of how many people are devoted to the port of entry activities. We'll give you a brief description of exactly what their role is and how they fit in the enforcement process to simplify the matter for you.

We also are in the process of having translated for you a document that outlines all of the impediments to removal, the various impediments to removal that are outlined in the Immigration Act and various other administrative impediments. So that should assist you as well.

We also have a document we will have translated that talks to the issue of outstanding removal orders, to attempt to give some clarity around that. I will speak to that later this morning, but we're preparing a document. Based on additional questions you have this morning, if they can't be covered off, we'll include that in the document we give back to you.

As well, in the documentation we provided to you this morning—you asked about it—in there is quite a straightforward description of the people who are inadmissible to Canada. It describes the sections in layman's terms, and I think it's much more straightforward than if we provided you that from the sections of the Immigration Act.

So now I'm going to have Mr. Cochrane go through the flow chart with you as to the process. He's going to start with the adjudication division chart that says “process”.

Mr. Neil Cochrane (Director, Case Presentation, Enforcement Branch, Department of Citizenship and Immigration): Thank you.

I believe you have two charts; one is the adjudication division process and the other is the convention refugee determination division process. I'm going to first go through the adjudication division chart, which is a chart that outlines how an individual is determined to be inadmissible to Canada and how a removal order is issued to the person. This chart, by the way, is courtesy of the Immigration and Refugee Board's annual report.

People come into the process in two ways: at a port of entry or inland. At the port of entry, a person is reported if they fall into one of the categories of people who are considered inadmissible. Similarly, inland people are reported if they are in violation of the Immigration Act.

We talked yesterday about the authority of the senior immigration officer. With respect to non-permanent residents, senior immigration officers have authority to deal with most of the allegations, particularly those that are fact-based. In other words, the person doesn't have the necessary visa or document; or, on the inland side, the person has remained in Canada illegally beyond the time they were authorized to be here. So those cases are dealt with by the senior immigration officer.

You see on the left side of your chart, if it's a positive outcome the person is allowed to remain or is admitted in the case of a port of entry case. If it's a negative decision, the senior immigration officer can issue a removal order.

Other allegations, and in the case of a permanent resident in all cases, where the person is reported either at a port of entry or inland, the case has to be referred to the adjudication division of the Immigration and Refugee Board, where a hearing is conducted before an adjudicator. Subsequent to that hearing, the person is either allowed to come into Canada or remain in Canada if the adjudicator concludes the allegations are not founded. Otherwise, in the event the person is considered to be as described in the report, a removal order is issued.

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As we talked about yesterday, in the case of a person who is claiming refugee status and the claim has not been decided, the removal order, whether issued by a senior immigration officer or the adjudicator, will be conditional. Then the adjudicator has the authority to order detention or release the person on terms and conditions. The person concerned can seek leave for judicial review to the Federal Court.

In the case of some permanent residents, they can appeal to the Immigration Appeal Division of the Immigration and Refugee Board, with the exception that where a permanent resident has been convicted of a serious crime and is considered to be a danger to the public, that appeal right is extinguished.

As I mentioned yesterday, this process in my estimation is working fairly efficiently in terms of time lines. Senior immigration officer decisions are often made in a matter of days and maybe a couple of weeks. With regard to adjudication, they are also fairly current in terms of inquiries.

I should point out that the vast majority of undocumented arrivals are dealt with by the senior immigration officers. Most of the cases that go before an adjudicator are permanent residents or some non-permanent residents where the allegations are complex—for instance, someone who is alleged to have committed war crimes or to be a member of an organized crime group or terrorist group.

Mr. John Reynolds: I just have one question on his comments so far. On the negative decision, where it says “a person not eligible for a refugee hearing”, who would not be eligible if they said they wanted to be refugee claimants?

Mr. Neil Cochrane: That's a very good introduction to the other chart, where the first step is the eligibility decision. But perhaps before I go on to that, are there other questions on the adjudication process? I'll just explain the eligibility decision in a moment.

Mr. John McKay (Scarborough East, Lib.): I'm not clear on the role of the first person seen there. Is that a person who merely gathers facts?

Mr. Neil Cochrane: It's the immigration officer at a port of entry—the first person of the Department of Citizenship and Immigration who will see the client after he or she is referred by customs. The officer basically examines the person and establishes whether or not the person is admissible. If the person's inadmissible—

Mr. John McKay: When you say examine, are we talking about an examination in the sense of an examination we have in a court case?

Mr. Neil Cochrane: No. It's an interview where the person is asked what documents he or she has.

The Chairman: We have to clarify it more. Coming into Pearson Airport and going through the immigration department, you have about 15 men and women in a row there. Are those the immigration officers you're referring to who look at the passports? Is that the first person? Is he the one who determines...?

Mr. Neil Cochrane: The primary inspection line is delivered by customs officers, and a person is only referred to an immigration officer for what we call a secondary examination if the customs officer cannot admit the person and sees there is a problem.

Mr. John McKay: I just want to go back to what this individual does. This person gathers facts. Does that person have any discretion at all in terms of yes or no?

Mr. Neil Cochrane: No, I don't see that they have discretion.

Mr. John McKay: So that's the sole role of this individual. Then you go to the senior immigration officer. What discretion does that senior immigration person have?

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Mr. Neil Cochrane: The possibilities are that the senior immigration officer issues the removal order; in some limited cases the senior immigration officer has authority to grant the person discretionary entry, where, for instance, he is satisfied the visit is a legitimate visit but the person fails to comply with one of the technical requirements of the act. Also, the officer can recommend that a minister's permit be issued when there are compelling circumstances.

Mr. John McKay: I'm still a little confused. I would like to follow that further, because that's where we are at this stage. I don't want to keep on questioning about it, but this seems to be a fairly critical point of entry. From the testimony we've heard thus far, your key to removals has a lot to do with your point of entry and what the people are doing at the point of entry.

So we have one person who determines the facts on which the senior immigration officer makes the determination. Is that person present at the time of the interview with the senior immigration officer?

Mr. Neil Cochrane: Not always.

Mr. John McKay: Are those facts related verbally or in a written format?

Mr. Neil Cochrane: There's a written report.

Mr. John McKay: A written report. So the senior immigration person has a written report in front of him or her, and they have a discretion to permit the person into Canada, into the refugee system. Or does the claimant simply say I'm a refugee, bingo, I'm into the system?

Ms. Susan Leith: Could I just go back to the immigration officer point? I understand it's an area you think is critical for a determination.

When the immigration officer is doing the fact-finding process, they are actually going through the process of all the inadmissibilities listed in the book there. When they are asking questions of the person they are asking, how long are you going to be here? That will help the officer determine whether they think they have a legitimate purpose in coming. Are you coming to work? Do you have a criminal record? Is your health good? It's those types of questions. When they are doing that, they are looking for all potential areas of admissibility or inadmissibility.

When they finally write the report and they give it to the senior immigration officer, the senior immigration officer has the report the person has written. They have all the notes the officer took, perhaps documentation the client has provided. They review all of that and then they come to their decision.

As Mr. Cochrane pointed out, there are only a few decisions they can come to. They can decide the report is in fact a valid report, the person is inadmissible—

Mr. John McKay: Inadmissible.

Ms. Susan Leith: —and then they take the action they would take from that. They say yes, the report is valid, this person shouldn't be coming to Canada—

Mr. John McKay: Either as an immigrant or as a refugee.

Ms. Susan Leith: Either as an immigrant or as a visitor. That's the first step. They say this person should not be coming either as an immigrant or as a visitor, depending on what the report said. The report could say you are coming to Canada as a visitor and you are inadmissible, or the report could say you are coming to Canada as an immigrant and you are inadmissible.

Mr. John McKay: No one has mentioned the word “refugee” at this point.

Ms. Susan Leith: The client may have mentioned it along the way, but the first thing the senior immigration officer does is look at the report.

So the senior immigration officer makes the determination whether the person should be allowed into Canada, whether they are inadmissible or not. They are either non-inadmissible or, if the senior immigration officer thinks the person is admissible—

Mr. John McKay: Only lawyers talk in double negatives.

An hon. member: The finance minister does too.

Mr. John McKay: I know, the finance minister does it too.

Ms. Susan Leith: If the senior immigration officer determines that the person is admissible, in other words that the report wasn't justified or it wasn't valid, the senior immigration officer admits that person to Canada; lets them come in for the purpose for which they were seeking to come into Canada.

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The other option that Mr. Cochrane described was that if the senior immigration officer found that the person was inadmissible.... A very common example of this is the person has gotten on the plane, they're coming on a business trip, and their passport has expired. They're only going to be here for two days. That senior immigration officer says you are inadmissible because your passport has expired; you have to have a valid passport. But given that you're coming here for a business trip, everything is on the up and up. It's legitimate, so I will issue you discretionary entry. In other words, even though they're inadmissible, they let them in for the purpose they had applied for.

Mr. John McKay: Those are administrative processes, and at that point it's not really an issue that this committee needs to be concerned about in terms of removals, because these people don't provide us problems particularly.

Ms. Susan Leith: No.

To clarify, the maximum amount of time for which that senior immigration officer can give someone discretionary entry is 30 days. If it's a period that extends past 30 days, then the senior immigration officer can issue a minister's permit. That is for longer than 30 days.

Mr. John McKay: As a point of shutting that line off, those folks don't provide us with a lot of grief. Is that a fair comment?

Ms. Susan Leith: That's a fair comment.

Mr. John McKay: Okay, then we've gone to that point. The senior immigration officer has said you are not admissible to Canada, and at that point the “R” word comes up.

Ms. Susan Leith: Yes, or it may have come up before, but then the senior immigration officer turns to the issue of the refugee claim.

I think Mr. Cochrane would want to explain—

The Chairman: Before we go on to the refugee claim, do you have something related?

Mr. John Reynolds: It's a follow-up on what you're asking.

The Chairman: Yes.

Mr. John Reynolds: I understand what you're saying so far. I'm just going to talk about British Columbia now; it may be the same in a lot of other areas.

If they come across the Blaine border crossing or they come into the airport, all those things happen. What happens now if the border crossing is just east of that? You've taken the immigration officials out of those border crossings. You have only customs officers there, and these same things happen.

Ms. Susan Leith: When those people arrive at a port of entry where there isn't an immigration officer, customs officers are designated as immigration officers for the purpose of that examination.

Typically, at a land border where there isn't an immigration officer they would ask the person to return to the United States until such time as an immigration officer is available, or would direct them to another port of entry where there is an immigration officer available.

Mr. John Reynolds: They would be refused entry. So there's no concern that if people start to figure out that there are no real immigration officers at some of these, they might start flooding across those border crossings.

Ms. Susan Leith: Yes. To use your words, they would be refused entry.

Mr. John Reynolds: Okay, fine.

The Chairman: Okay, go ahead and continue with the next phase.

Mr. Neil Cochrane: The next chart is the convention refugee determination process. I should point out that this process can be initiated at a port of entry. It can be initiated inland.

Also, not everyone who claims refugee status is inadmissible to Canada or is in violation of the Immigration Act. We have people who are visitors to Canada, who are foreign students with legal status who have access to claiming refugee status.

If we were looking at this process in terms of an illegal immigrant or a person who is otherwise inadmissible, most often that is accurate, but it's the same process. Sometimes there is an overlap, but sometimes it's independent.

When a person first expresses the desire to make a refugee claim, the senior immigration officer has the responsibility of determining whether or not the person is eligible to have their claim referred to the Convention Refugee Determination Division of the Immigration and Refugee Board.

To answer your question, Mr. Reynolds, on the access criteria, it's under section 46.01(1) of the Immigration Act. A person is eligible unless they've been found to be a convention refugee by another country already, unless they have previously claimed.... For instance, if they have claimed and have been denied refugee status, have left Canada but they haven't been outside of Canada for more than 90 days, then that person would be ineligible.

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A person is also ineligible if they've been convicted of a serious crime and there is an opinion from the minister that they represent a danger to the public. Also, a person is ineligible if it's determined that he or she is responsible for war crimes or crimes against humanity, or is a member of a terrorist group, and the minister is of the opinion that it would be contrary to the public interest to have the claim determined under the act.

Mr. John Reynolds: I understand that, but I would have to think most of those things are probably found at some stage later. I'm just trying to figure out if any of whatever number come to the border and ask for refugee status are ever told no, and they're back across that border the other way. Or do they all get in and we make the decisions later?

Mr. Neil Cochrane: For a very small number, that's correct.

A voice: Ninety-nine percent.

Mr. Neil Cochrane: A very small number are found to be ineligible.

There is provision in the law to revisit such a decision. For instance, if we refer the claim to the CRDD and find out afterward that the person had in fact previously claimed but is now using a new identity, and through fingerprint checks we find a match, we can then have that claim suspended and any decision that has been made can be rendered null and void. Similarly, this is also the case when we find out about serious criminal convictions that the person did not disclose to us.

Ms. Raymonde Folco (Laval West, Lib.): Can you also tell me at which point there is an overlap between page 13 and page 11? Is it at the point where, on the bottom right-hand side of page 13, it says “Negative decision”, and where, when you move over and down, it says “Eligible claims referred to CRDD”? Is that where we end up on page 11, right in the middle at the top? Is that the overlap, the continuity?

Mr. Neil Cochrane: Yes, although it is possible that a claim is referred before the inquiry process even starts.

Mr. Steve Mahoney (Mississauga West, Lib.): It could be a port of entry.

Mr. Neil Cochrane: That's right.

Ms. Raymonde Folco: So the refugee claimant—we're talking about refugees here—can make a claim as soon as he gets in, or he can also make a claim when he gets to the bottom of page 13, and then it follows the page-11 process. Is that right?

Mr. Neil Cochrane: That's right. He can make a claim at any time during that process. Under the act, however, he cannot claim after a removal order has been issued.

Ms. Raymonde Folco: But please answer yes or no.

Mr. Neil Cochrane: What I'm saying is yes, but it's not limited to that.

Ms. Raymonde Folco: I just want exactly what the flow is in order for it to be clear for all the members, because that's what is important here. The flow is that at some point he makes a claim here on page 13. He then follows the flow on page 11. Is that correct?

Mr. Neil Cochrane: It varies from case to case, but I'll explain that in the vast majority of cases it's the senior immigration officer—this is up on the left-hand side—who would—

Ms. Raymonde Folco: Of page...?

Mr. Neil Cochrane: On page 13 of the adjudication process chart. The senior immigration officer issues a removal order, and these are conditional removal orders in most cases of refugee claims. At the same time when the senior immigration officer is rendering that decision, he's also rendering the eligibility decision and is deciding whether or not to refer the claim to the CRDD.

Mr. Greg Fyffe: Can I make one clarifying point? If somebody is coming forward with no documents, that person is going to say he's claiming refugee status when he hits the primary line. That's where customs does it on our behalf. That person would then be referred by the primary to secondary, which is immigration inspection, at which point all of this would then happen. But people can't get by the primary line if they have no documents. They have to say they're coming to claim refugee status.

Mr. Steve Mahoney: I think Mr. Cochrane's comment was that they can't claim refugee status after a removal order has been issued. It's important to note, then, that if they're down to the third box on the left, where there is a removal order issued, they had better have made their decision before that point or they're out of luck.

Mr. John McKay: The question then arises as to why you wouldn't make your claim for refugee status even prior to the senior immigration officer dealing with you, because, especially if we're talking about a person who may have a criminal record to hide, something previous to hide, that person might as well make a claim early, get it in and get it over. Is that the way the game gets played?

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Ms. Susan Leith: Generally—

Ms. Maria Minna (Parliamentary Secretary to Minister of Citizenship and Immigration): That's true. They can do all that. Just to clarify this—and I'm not sure if it's understood from what you said earlier—regardless of at what point the refugee claim is made, as long as they make it within.... If there's a criminal record, if it's found out at the time when the senior immigration officer is looking at it, if something's strange, they are not referred to the refugee determination division. They're bypassed because the new law says they don't have to go there.

But if we find out that they were involved in any criminal activity, even after they've applied for refugee status and have started the process, the process is aborted because of the fact that they now have a criminal record and are no longer in the refugee stream. Am I right?

Mr. Neil Cochrane: That's right.

Ms. Maria Minna: That's as a result of the new rules.

Mr. Neil Cochrane: Bill C-44 of July 1995.

Ms. Maria Minna: So there's still time for the department, even if, at the senior immigration officer level, they've been referred to the IRB but have a conditional removal. But before they get there, if in the meantime further investigation and the security checks show there's a problem, that can be aborted, so they don't end up in front of an IRB hearing.

Mr. John Reynolds: But don't you have the problem...? If they're from Jamaica, Iran, or wherever, you can't send them back anyways. So now you've got them. Period.

A voice: Yes.

Ms. Maria Minna: We'll get to that. I understand, but I'm trying to get at this point—

Mr. John Reynolds: I know what you're saying.

Ms. Maria Minna: —that they don't end up at the IRB table to be heard. That process is aborted.

Mr. Neil Cochrane: That's right. Whether they've been heard or the hearing process has started, the consideration of the claim can be suspended, but not for any criminal conviction. It must be a serious one, and in addition there must be this opinion that the person represents a danger to the public.

Mr. Greg Fyffe: Not everyone is trying as a matter of priority to get into the refugee stream if they think there's another way. If they have a false document with a false visa, their first hope might be that they go right through the whole process and end up in Canada and never have to come before the board, that they just somehow get in. They might not be required to have a visa at all, like, for example, the time when we had the flow from Chile.

It's only in some of these cases, when there's a suspicion as to what the real intent is or the possibly illegal status is, that they're referred from primary to secondary, and get interviewed. They get part-way through the process, realize that they're headed for a turnaround, and then they say “refugee”. There are a whole bunch of possibilities here.

Mr. Brian Grant (Acting Director General, Enforcement Branch, Department of Citizenship and Immigration): Can I just add one thing? Your point is well taken. In the last couple of years we have tried to do two things. First, how can we bring more information to bear on that examination at the port of entry? For example, how can we link up to U.S. systems and lookouts?

Second, we have tried to build flexibility into the system, precisely because you often don't know who they are. They don't have a document. They've come from outside North America so you don't have linkages. The police system may not be reputable in the country they've come from. They will gravitate towards their community, and often what happens is that people in the community might recognize them and come forward. You'll often get tip-offs, like “oh, so-and-so, we know him and he was involved in this”. That will often give the us lead we need to follow up on security threats or perhaps criminality.

Mr. John McKay: But that creates its own problems too, particularly in the Somali community, where one group doesn't like the other group and—

Mr. Brian Grant: Yes, you have to sort through all of this, but we've built flexibility into the system so that at any point we can stop the process, even when the refugee claim is under way, and bring it back and look at this question of eligibility again, based on the new information we have.

Ms. Maria Minna: Okay.

The Chairman: All right. We can proceed.

Mr. Brian Grant: Continuing with the convention refugee determination division process, once a decision is made that the person is eligible, the claim is referred to the refugee determination division. Then the refugee determination division considers the claim.

We've listed the various internal processes that exist for consideration of the claim. Unfortunately I'm not really able to explain why it may go through one process or another. I guess the Immigration Refugee Board would have to speak to that.

Once a person is found not to be a convention refugee, there can be an application for leave to the federal court, application for leave for judicial review. If leave is granted, there will be an appeal at the federal court. Where leave is denied or where the appeal hearing is granted but the outcome is rejected, the person may apply for a post-determination review, which is an assessment of the individual's personal risk. Sometimes this is referred to as the PDRCCC regulations.

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This is an assessment of whether, notwithstanding the fact that the person does not meet the definition of a convention refugee, they would face significant personal risk if they were returned to their country. If the answer to this is yes, then they may remain in Canada. Of course if they are rejected at this stage, we get closer to removal.

It's not quite as simple as this that we have removal from Canada, but this is where Susan will continue with the focus on removals, unless there are some questions about refugee determination.

Mr. John McKay: Can I get back to trying to generate.... If the goal is to generate adequate information for the removal process so the removal process has some efficacy, and if the issue is that the port of entry doesn't gather sufficient identifying information at the commencement point, which is where you have the individual who is making the claim....

Let me just clear this up for my own mind. The first person they hit is a fact-gathering individual, who has virtually no discretion. The second person they hit is a fact...and some legal interpretation as to whether the person qualifies...has a small discretion, which is exercised in only 1% of the cases.

Now, presumably the 99% who go through are issued some document to enter into the refugee claim process. I've understood—correct me if I'm wrong—that there's a bit of trafficking in those documents. Is that correct or is that not correct?

Mr. Neil Cochrane: I'm not aware of that.

Mr. John McKay: Describe for me the document issued at that point.

Ms. Susan Leith: The person is issued an eligibility to make a refugee claim document?

Mr. John McKay: Yes.

Ms. Susan Leith: I've never heard any information that those documents are trafficked. I believe even the person's picture is on that document.

Mr. John McKay: You have a picture—the whole nine yards.

Ms. Susan Leith: Yes.

Ms. Raymonde Folco: It's an application form that states the person's age, name, where he comes from—

Ms. Susan Leith: It's not an ID document or anything.

Ms. Raymonde Folco: No, it's not really a document. It's an application form.

Ms. Susan Leith: No, no. Excuse me. You are talking about a different document from the one he is.

The senior immigration officer, when they determine the person is eligible to make a refugee claim, issues that person a document which is an eligibility to make a refugee claim form. The purpose of that form is so that person can apply for a work permit or welfare.

The form you are referring to, Madam, is I believe what we refer to as the “personal information form”. That is the document the client fills out and provides to the Immigration and Refugee Board describing all the background information relating to their claim.

Ms. Raymonde Folco: I beg to differ on this. I think there are two forms. In my experience what you are talking about, which we commonly call the PIF, is a very long form in which the client has all the leisure to explain the circumstances of his request for refugee status. But I understand there is another form, one that predates this, which the client makes out at the point of entry.

Ms. Susan Leith: Oh, I understand. Yes, what you are referring to is that, as Mr. Cochrane mentioned, in some circumstances we have had a process whereby the clients fill out an application form and they give all their background: where they have come from, the addresses they have lived at previously, all the various countries, their route in coming to Canada. That is the information that gets presented to the immigration officer and to the senior immigration officer.

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Ms. Raymonde Folco: I think it's important to underline that there is a document at this point that eventually finds its way before the adjudicator but is among a pile of documents the adjudicator receives. So at the point of entry there is already some kind of very short interview where the refugee claimant puts on paper a certain amount of information. I think it's important to underline this because eventually we may want to go back to look at this paper and look at what happens at that particular interview, which is what you're getting to, Mr. McKay.

Mr. John McKay: Yes. That's why I was just trying to get to the point of whether, when the individual is in the airport or darned close to the airport, there is other information the removal folks would like to know that could be obtained at that point.

Ms. Susan Leith: Yes. As a matter of fact we have a document that is currently being printed for dissemination to all of our port of entry officers and inland officers. It's called “A Background Information Document” and contains all of the information from the client we need in order to obtain a travel document for that person at the tail end of the process.

We're moving that document right to the very beginning of the process. So the client completes that document, signs it, and his or her picture will be on it. Then if the client is uncooperative at the removal stage, we will have that document. We'll be able to say “This is what the client stated and verified as accurate information pertaining to his or her identity. Here is his or her signature and here is the photo.” We will be able to use that to present to a foreign consulate to say “Here's the information this gentleman or lady gave us”.

Mr. John McKay: Is there any difference between the material you would obtain from a prospective claimant from a country that has not signed your bilateral agreements as opposed to a country that has signed the bilateral agreements?

Ms. Susan Leith: Are you referring to the bilateral removal arrangements I spoke about yesterday?

Mr. John McKay: That's right.

Ms. Susan Leith: No. The information would be the same.

Ms. Raymonde Folco: May I just make another suggestion, Mr. Chair?

I would like to underline the fact that at the bottom of page 11 it says that any time during the process a person can apply to the minister on the basis of compassionate and humanitarian considerations. I want to draw everyone's attention to this, because it's just a little box at the bottom of the page, but it means that any time during that process there's a roundabout where we can almost start the process all over again. That's a very important box. It's one of the things that was very much criticized in the report and in the Auditor General's report also.

Mr. Steve Mahoney: I raised the question in the other committee I'm on, public accounts, with the Auditor General as to why we would even have a compassionate and humanitarian request. I would have thought all of this was done based on compassionate and humanitarian grounds when you're dealing with refugees, so it seems to be a duplicate of process.

At which point in this chart—either one of them, but particularly the refugee chart—is the person released into the community?

Mr. Neil Cochrane: Generally, refugee claimants are not being detained currently. A small number are detained, but it is rare that we would detain them at the front end of this process.

Mr. Steve Mahoney: In the top three boxes, a claim is made and the SIO determines if it's eligible. The determination is “not eligible—removal from Canada”. Is the person detained at that point?

• 1200

Mr. Neil Cochrane: The officer has the authority to detain. In some instances, yes, they'll be detained. In some instances they can be returned almost immediately.

Mr. Steve Mahoney: And in some instances they can just be released and then they go through the process of the hearing.

Ms. Raymonde Folco: Well, they're not released; they're just not detained.

Mr. Neil Cochrane: If they're not eligible, they won't go through this process, but sometimes the decision as to whether they're eligible or not can be made immediately; other times it requires that we go through this adjudication process, which is on the other chart.

For instance, if we're talking about someone who's alleged to be a member of a terrorist group, we have to engage this other process to determine if they are as described in the inadmissible class. It's once that determination is made that the eligibility decision can be made, because it will hinge on that finding of the adjudicator.

Mr. Steve Mahoney: The reason I asked the question is that the tragic small minority of cases that hit the headlines are of people committing a violent crime while under a deportation order. The comment in several documents that I've read, including the Auditor General's document, is that you have great difficulty in enforcing your removal orders, “you” being generic.

When there is some doubt, we don't want to create a prison at the airports, where we have people behind bars, but this seems to be a pretty critical problem. Where there is some doubt as to eligibility, if you release that person into the community and a tragedy occurs, everybody—everybody—goes crazy, because this person was supposed to have been deported and has now gone and killed somebody or done something else.

Mr. Neil Cochrane: If the officer has reason to believe the person represents a danger to the public, the person would most likely be detained, at least initially, early in the process. When I said it's rare to detain refugee claimants at the front end, the exception to that would be people for whom there's reason to believe they will represent a danger to the public.

Mr. Steve Mahoney: The bottom line is it's not foolproof, because it's a subjective decision by a human being. Sometimes they fall through the cracks, and I don't know if there is anything you can do.

Mr. John McKay: So what we should try to do is take out the cracks.

Mr. Steve Mahoney: Well, I don't know if you can do anything to fix that.

Mr. Brian Grant: That is an important point, because the two grounds we have for detaining people right now are that they represent a danger to the public or that they would fail to show for some immigration process. The foolproof way is to lock everyone up, and then you raise questions of the charter. Do you have the right to detain people when you don't have evidence that they do constitute a danger to the public?

Mr. Steve Mahoney: Especially when it takes 14 months to get a decision.

Mr. John McKay: Or you could beef up the discretion of the senior immigration officer at the point of entry to widen his parameters of discretion.

Mr. Steve Mahoney: Except he's still a human being.

Ms. Raymonde Folco: And he's still subject to the charter.

Mr. John McKay: Well, everything is subject to the charter, but let's try to get it right before we get charter-phobia here.

I'm just curious: are there points at which you as a department could see a more efficient and equitable treatment of claimants, right at the port of entry, that would provide more integrity to the system, à la what Mr. Reynolds was raising yesterday about the way the Americans seem to be doing it? Is that a good idea or is that not a good idea? Are there things that could be done just in terms of increasing the discretion of that senior immigration officer?

Mr. Greg Fyffe: That's something we really have to look at. It is part of the recommendations that have been made to us through the ILRAG report that there be a much greater power to detain people who don't, for example, aid us in signing documents.

The real issue on the danger is the one Mr. Grant referred to: how long can you hold on to somebody if you don't have a judicial process or if you don't have evidence? It's one of the critical things, and I know it's the subject of complaints. If somebody is being detained because they're a danger—we've detained them for a month and they've been brought forward and we were allowed to detain them again and again—there comes a point when the adjudicator is almost compelled to say “You don't have anything. I can't allow you to hold this person any more, in the absence of specific evidence or a criminal charge or something.”

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Clearly, from our point of view, if we had the power to go beyond that, that would be useful. But you play that off against other process considerations, including the charter but not just the charter. So there's a trade-off there.

As for the issue of how much detention at the airport, the examination we have to make of that is do we really feel if we could detain more people who we think might not show up—because that's the kind we're really talking about more there—would detention really help us? How much would it cost us? Are we going to get a group of people who would be quite happy to rest indefinitely in detention? That would mean we would have neither...we wouldn't have enforcement, but we would have significant costs.

There are a number of twists and turns to this. What the issue comes down to is how long do you hold people who you believe constitute a danger, when you don't have any means of proving that within judicial standards?

Mr. John McKay: There is a quasi-bizarre element to the process, though. You've gone through two people at this point over a course of something like four days, one of whom has no discretion, the other of whom has limited discretion, and it's virtually slam dunk that if you ask to be treated as a refugee, you will be treated as a refugee and get into the country.

Mr. Greg Fyffe: I wouldn't go that far. I'll leave it to Mr. Cochrane to follow up, but I wouldn't go that far on somebody who clearly constitutes a danger. If there's a judgment that the person is in fact a criminal, they would not get into the community anywhere near that easily. We would then eventually run into the other problems, though, of how long we can detain and on what grounds.

Mr. Steve Mahoney: You'd have to have some proof, wouldn't you?

Mr. Greg Fyffe: Yes. This is the issue—if we think the person constitutes a danger but we don't have any.... We might have a tip-off that the person is wanted somewhere. We might have knowledge of a criminal record, but not everything we want in front of us. They might in fact be somebody who has served a sentence, for example, in another place, but has finished the sentence—a criminal, for example, from the States, who's served a sentence that's fairly serious but where there are no outstanding charges or anything, and it's just that we know they're not the kind of person we want in Canada. There is no proof, because at that point there is no crime, but there is a clear danger that this person is not someone we want running around in society.

Mr. John McKay: What about the concept of preliminary hearings? In the judicial process you have a concept called preliminary hearing. At that point it is what it says it is to be—namely, the idea is whether the crown has sufficient evidence to proceed to a trial. I wonder whether that concept could be applied at the airport.

Mr. Greg Fyffe: I'll pass the technical part of that, but I want to underline the kinds of people who might cause us some problems, because there is an element there. Suppose the person was coming from the States. Suppose they had a series of convictions that were below the threshold for turning them around at the border.

Mr. John McKay: I'm talking about a preliminary hearing on the merits of the claim.

Mr. Greg Fyffe: I know, but suppose there was a sense that they were a danger, and we started the process that would turn them back at the border, and they said “refugee”. Then we're stuck with somebody who's made a refugee claim, who we believe is a danger, but there's no crime and there's no offence in the States at the threshold that would allow us to turn them back. That's one of the situations.

I'll turn to one of my colleagues for the technical question now.

Mr. Brian Grant: You're very close to a very challenging issue that we always face. In terms of immigration, as we saw this morning, it works fairly well. Before the mid-1980s it worked very well. We didn't have a massive number of people coming. But we always have to work within the refugee determination system that the country has, and things hook in there.

There are basically two aspects to the refugee determination process that you have to bear in mind. Number one is that the UN convention says that you cannot refoule somebody until you determine whether they're a refugee. It doesn't tell you how you determine that; you just determine it before you send them back. Number two is the charter, which says that anyone in Canada has the right to due process of law, which means that you have a right to appear before the person who will make the decision in your case. It doesn't say how that has to be done. It just says that you have to do those two things.

The United States does't have the charter, of course, but what they're doing is saying you can take certain people who are coming in certain circumstances and do a more expedited process. So if you come and you're not cooperative and you don't have documents, and have obviously destroyed your documents, you're going to follow this particular process. The Dutch do the same thing. For anyone else you might follow a different process.

• 1210

All of this is possible, and all of this is the challenge that ILRAG does and the challenge that you've been given as well. But you're always playing off the asylum question against the immigration question and how does one impact on the other and how does one allow—

Mr. John McKay: So the concept of a preliminary hearing at the point of entry is a concept that could potentially work.

Mr. Brian Grant: It's a concept that could be looked at. I think it's possible under the criteria you have to work with. As you probably know, we did have in the past...after Bill C-55 we introduced a two-level hearing wherein we would look at the first level, which would be whether there was a credible basis for the hearing to go forward. If there was, you would go to a second stage.

We eliminated the first stage because we found that 99% of the people did have a credible basis for their claim. So what you were doing was just adding length to the process.

The Chairman: Mr. Obhrai.

Mr. Deepak Obhrai (Calgary East, Ref.): It's good, I would say, that we have all this process and everything, but somehow we know there's a problem with this system and things are not tying in. I think we're trying to come up with a system, but there are still big-time problems here.

Let me go back to something else. For somebody who's been living in this country—as I talked to you about this morning—and doesn't have citizenship, and has done something wrong and a deportation order is issued for him, and he's been here for say eight or ten years, why would another country...? You have issued a deportation order. Wouldn't travel documents come into play there? Why would another country accept him back after he's been gone for years?

Ms. Susan Leith: That is one of the challenges we face. Many countries are signatories to a variety of different conventions, and many of those conventions indicate that people have a right to return to their country and that there is an obligation on the part of their country to accept them back because they are a citizen of that country. Therefore, there are obligations different countries in the world have signed onto that oblige them to accept back their citizens.

Mr. Deepak Obhrai: Is that a big problem or a small problem? In the removal process, is that a big problem?

Ms. Susan Leith: The issue of countries accepting back their nationals is a significant problem.

Mr. Deepak Obhrai: It is? No more questions.

Ms. Raymonde Folco: We were talking about criminals, and there's something that doesn't appear. There's information that doesn't appear on the chart on page 11 under special circumstances.

There are cases where the adjudicators have reason to believe that the person might be a criminal, might have committed some kind of criminal act, and at this point—I think I've mentioned this at another meeting—a minister's representative is asked to sit in on the adjudication. Time is given to the minister's representative to bring in information to help the adjudicators decide whether this person was or was not a criminal.

I think this is an important point in terms of our own worries about criminals and war criminals, because it's not just when you think you have the information at the point of entry, but there's also something in the flow chart where there's time taken for looking at that particular question. It's at the two-member panel special circumstances level.

Mr. Neil Cochrane: If I could just clarify that, I believe you're referring to the exclusion clauses of the definition of a convention refugee.

Ms. Raymonde Folco: Yes.

Mr. Neil Cochrane: Yes, there is a provision there for a minister's representative to participate in the hearing before the refugee division where there is a possibility that the person is excluded because there are reasonable grounds to believe they committed a serious crime.

I want to clarify the distinction between criminality for the eligibility decision by the senior immigration officer. It is that there has to be a conviction and the person has to represent a danger to the public to be found ineligible, whereas before the refugee division the person can be excluded, even though they haven't been convicted, if there are serious reasons for believing they have committed a serious crime.

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Ms. Raymonde Folco: That's an important point, one I think we should let members know about.

The Chairman: Ms. Minna.

Ms. Maria Minna: Just a point of clarification on your chart on page 11, about the expedited process. You have an arrow for determination by one member without a hearing, but then if it's a negative it goes back up to two members. Does that mean a request can be made for the case to be reheard by two members—if it's a negative by the one, a person can then elect to have another hearing?

Mr. Greg Fyffe: These are questions I think you will want to put to the IRB, but basically the IRB has tried to find a means of filtering out from the full hearing process some cases which appear obviously to be cases of convention refugees. They have tried to find a process which will allow them to deal with those more quickly.

If the case hits a block, they just refer it back to the full process. They look at whether this person can be determined to be a convention refugee without a hearing. The negative is really no, they can't be determined to be a refugee without a hearing. So they go back into the full process.

Ms. Maria Minna: It's not that clear, so they should go. Fine.

The Chairman: I need to ask for a slight delay in this whole process, simply because we have a couple of motions that have to be passed. It's a little business. It will only take a few minutes. The reason I have to interject at this time is I'm afraid I'm going to lose the quorum. I have to have nine members here.

You all have the second report in front of you. I'm going to ask that we dispense with the reading of the report, simply because you have had it in your possession for some time. I'm asking for a mover for the adoption of the report.

Ms. Raymonde Folco: I have a point of order here. There's a mistake in item 3.

The Chairman: The clerk will correct that. Right at the very bottom it should be February 25, 1998 at 3:30 p.m., not 11 a.m.

I would like to have a mover for the second report of the subcommittee on agenda and procedure to be adopted.

Ms. Raymonde Folco: I move it.

(Motion agreed to)

The Chairman: Now I have another motion, that paragraph 5 of the report be deleted. This is on travelling. I think I spoke to most people about that. It's simply because there is no money in the budget. The budget doesn't start again until April 1. We have a one-shot deal at the budget. We have to make a proposal early in the fiscal year for travel in the future, when we're going to be dealing with the reports we get from the government. That will be a very costly exercise, and I don't want to have any money used at this time, simply because there is no money.

Is that clear? Do we have someone to move that paragraph 5 of the report be deleted?

Ms. Sophia Leung (Vancouver Kingsway, Lib.): I so move.

(Motion agreed to)

The Chairman: We have another motion here, that reasonable travelling accommodation and living expenses, as per the regulations established by the Board of Internal Economy, be paid to Robert Trempe, chair of the Immigration Legislative Advisory Review Group, who will be appearing before the Standing Committee on Citizenship and Immigration on Wednesday, February 25, 1998. The reason we have to introduce that motion is that we have a standing motion we passed in the past that we would have only two witnesses from any organization appearing before this committee at any given time. In this case it's the troika that is coming in. We need all three of them working on the advisory group, so we need a special motion to bring the third person in.

Ms. Raymonde Folco: I so move.

(Motion agreed to)

The Chairman: Let's continue now with our main task.

• 1220

Mr. Greg Fyffe: We can move on, if you like, to Susan Leith, who can take you through some of the details of the removal process.

The Chairman: Okay, go ahead.

Ms. Susan Leith: I indicated earlier that when we get our package of information together I'll include a document that outlines what I'm describing to you now. I'll also provide you with a flow chart that expands upon the removal process.

As you notice from the table on the right-hand side of page 11, it indicates removal from Canada as the last activity that happens. There are a few activities that happen in between the actual removal order becoming effective and when the person actually leaves the country.

It's quite complicated to describe that without a flow chart, but based on some of the questions you posed yesterday, I've tried to put together some comments that might assist you in better understanding the process.

In the beginning, we were asked how many outstanding removal orders there are in existence. That's a rather complicated question to answer, so I'm going to go through and describe to you specifically what a removal order is, to begin with.

There are three types of removal orders. There's a deportation order, which is an order that permanently bars an individual from returning to Canada without the consent of the minister.

The Chairman: For life.

Ms. Susan Leith: Yes.

There's an exclusion order. That is an order that bars an individual from returning to Canada for a period of one year. Typically, in the process Mr. Cochrane described, those are orders issued at the port of entry when a person arrives and they're inadmissible. The senior immigration officer can issue an order and they have to leave. It's not for anything that's a serious offence; the person is issued an exclusion order and they're required to remain outside of Canada for a year, without the consent of the minister.

Ms. Maria Minna: Could you elaborate on the exclusion order? For what kinds of reasons would one be asked to go for one year?

Ms. Susan Leith: Say for example a person arrived at the port of entry from the United States and said they were coming here to work, that they wanted to get a job at a technology company because they heard computer specialists were needed.

The immigration officer would ask if they had an employment authorization. If the individual does not have an employment authorization, the officer generally would tell the person they have the opportunity to return to the United States and apply in the proper manner.

If the individual refused and requested a decision now because they want to come in and go to work, the officer would have no option but to tell the person they are inadmissible, that the Immigration Act states that an employment authorization is required to come in to do that activity.

He would refer it to the senior immigration officer, who would give them an option to leave voluntarily, in a circumstance like that. If the person refused, then the senior immigration officer would have no option but to issue that person an exclusion order. That person would be barred for one year. Then after the time period of one year, they could return to Canada.

A departure order is another type of removal order. That's an order that requires the person to leave Canada within 30 days. Typically, the people we described that go through the refugee process, when they are through the final process and they are determined not to be a refugee and are required to leave Canada, that's the type of order that they have. When they get notified that it's time to leave because they haven't been successful in the refugee process, they have thirty days to leave.

• 1225

If they don't leave within the thirty days, that order automatically becomes a deportation order. If they leave during that thirty-day period when they have that departure order, there is no permanent bar to their readmission. If they don't comply, though, if they don't leave within that time period, that order automatically becomes a deportation order. When we find them and they have to leave, there is then a permanent bar against them returning to Canada. The intent behind this is to try to have more of these people who fail in the system to comply and to leave on their own.

The Chairman: Could I have some clarification here? A person is being deported, and that person has to leave on such and such a date. If that person is going to fly from here to Berne, Switzerland, for example, and he has no money, who's paying for the fare?

Ms. Susan Leith: In those circumstances in which the person has to leave within thirty days, he's typically buying his own ticket.

The Chairman: What if he has no funds?

Ms. Susan Leith: Then he doesn't leave within the thirty days and has a deportation order against him.

The Chairman: So people like that have a deportation order. Okay, and then we can step in and we can send them out. They still have no money, so how are they going to leave? Do we pay for the cost to ship them out?

Ms. Susan Leith: If we have identified the transportation company that brought them to Canada when they arrived, that transportation company—and the reason I say “transportation company” is that some people arrive by airline, some people arrive by ship or by bus—that shipping company or that airline company is required to pay for the cost of that person's removal.

Mr. Norman Doyle (St. John's East, PC): So because he has no money and is going to be deported, he would be permanently banned at that point.

Ms. Susan Leith: That's correct. If he doesn't leave within the—

A voice: It hardly seems fair.

Mr. Norman Doyle: No, not if he has no money, he has no income and he has no resources. If he can't get a ticket back out in order to comply with the removal order, he would be deported and therefore would be permanently banned.

Mr. Brian Grant: Unless he had the permission of the minister to return. There is an escape on that.

Mr. Norman Doyle: Is there? Okay, so he can conceivably get back in, even though he might be deported.

Ms. Susan Leith: Oh, yes.

Just to clarify that, what I said was that a deportation order permanently bars a person from returning to Canada unless he gets the consent of the minister. People can apply, they can say they were on their way to leave but realized that they had lost their passports and had to go to apply for new ones, which took ten days and caused them to inadvertently stay longer than the thirty days.

Mr. Norman Doyle: That would be taken into consideration.

Ms. Susan Leith: When the official reviews the request for consent, that would be taken into consideration. Circumstances like that would be viewed in a more favourable light.

Mr. Norman Doyle: Is that fairly routine? Does the minister routinely issue...?

Ms. Susan Leith: Consent?

Mr. Normal Doyle: Consent, yes.

Ms. Susan Leith: I can get you statistics on that.

Mr. Norman Doyle: Yes, that would be okay. I was just wondering if it's routinely done, if it's easy to get.

Mr. Brian Grant: Many of the deportation orders will be for very serious reasons, so it's unlikely that the minister would give consent.

Mr. Norman Doyle: That he would issue an order again, yes.

Mr. Brian Grant: In some cases, for people who have come in, have made a refugee claim, and are subsequently removed, they've done that because there's no other way to get into Canada. They may make an application to the minister to allow them in, but they would then have to prove that they were in fact bona fide visitors. It's unlikely that they would qualify subsequently as immigrants. In some cases, that's why they came the refugee route. They may qualify later. Circumstances change.

So my guess is that it's unlikely it occurs for many people, although it is possible for exceptional circumstances.

• 1230

The Chairman: I'm going to have to put a stop to the session simply because the steering committee of this committee has to meet to make some very important decisions.

There is no doubt in my mind that you people have done an excellent job. You've given us a tremendous amount of information. You helped to clarify in our minds some of the difficulties that we, and others, have perceived. We will probably be calling you back. There's a lot for us to learn yet.

Ms. Maria Minna: Mr. Chairman, I have a suggestion for when we have them back. We're meeting on Wednesday, which is our next meeting with the ILRAG people. It's a bit ahead of—

Mr. John McKay: Yes, it's premature really.

Ms. Maria Minna: It's a bit premature really because we haven't quite got through the whole issue here of understanding removals. We haven't seen the flow chart of removals and all the documentation, which would be helpful. We don't quite have a complete picture. Maybe that's something we'll discuss with the steering committee.

Here is what I would suggest. The officials are coming to the next meeting. If I heard you right, you were bringing a flow chart on removals. It's similar to this, so we can follow the other end of it as well, along with whatever other materials you deem necessary to understand the whole removal process, who does it, and so on.

I guess we'll have to discuss the process here. I think that's important for us to understand before we get into discussing the recommendations of the ILRAG, which is then making a leap of discussion that will—

The Chairman: The way the agenda has worked out is simply because of the availability of our witnesses.

Mr. John McKay: I find myself in surprising agreement with the PS of the Minister of Citizenship and Immigration.

Ms. Maria Minna: Oh, oh!

The Chairman: I'm afraid there will be no steering committee. We just got the message from the whip to please adjourn and go to the House immediately for a vote.

We will meet again on Wednesday, February 25, 1998, at 3:30 p.m.

The meeting is adjourned.