NATIONAL CONGRESS
OF ITALIAN-CANADIANS
Montreal, June 10, 2000
SPEAKING NOTES
|
Me.
Colin R. Singer, Canadian Bar Association, National
Citizenship and Immigration Law Section
|
Key Concerns
respecting Bill C-31, Immigration and Refugee Protection Act
Introduction
The National
Citizenship and Immigration Law Section of the Canadian Bar
Association (the Section) is profoundly concerned about key
provisions in Bill C-31 and their underlying policies. This
Bill, introduced April 6, 2000 and comprehensively amending
the Immigration Act, is complex and broad legislation that
cannot be fully reviewed in the scope of this document. For
that purpose, the Section is developing a full brief for
presentation to the House of Commons Standing Committee on
Citizenship and Immigration.
The Section agrees
with some aspects of the Bill, such as extending sponsorship
to common-law partners and consolidating processes for refugee
and protection determinations. However, it has serious
concerns which far outweigh its agreements. Here, we identify
key issues that are representative of the flaws of the
legislation.
As the April 2000
Auditor General’s report noted, immigration has contributed
significantly to our population growth. Almost five million of
the Canadians surveyed in the 1996 census were born in other
countries. This represents more that 17 percent of the
population the largest proportion in over 50
years. Given Canada's aging population and dropping birth
rate, immigration is expected to continue playing a key role
in our economic and demographic growth.
Immigration
legislation necessarily addresses two main areas: selection
and control.
Selection involves
Canada’s choices:
1. to select
immigrants in furtherance of social, cultural and economic
benefits;
2. to fulfill our international obligations and give
expression to our humanitarian ideals through granting of
protection to Convention refugees and others in need of
protection; and
3. to promote trade, commerce, cultural and economic health
through admission of visitors, students and temporary workers.
Control involves the
ability:
1. to deny selection
and entry of individuals in the interests of preserving the
health, safety, security or economic interests of Canadians;
2. to remove from Canada those who are without legitimate
status; and
3. to strip status and remove from Canada those whose conduct
justifies our ultimate non-criminal sanction exile
from Canada through deportation.
The integrity of our
immigration system is determined by the processes that we use
to achieve selection and control. At the heart of
decisions to deny access or to pursue removal is the
reality that these decisions can and do affect the quality and
security of individual human lives. Enforcement of
immigration law can and does result in loss of legitimately
acquired status. It causes separation of parents from
children, spouses from one another, and individuals from the
country that has been their home.
These are difficult
and unavoidable decisions. In keeping with the significant
loss of rights or status in issue, we place our faith in
processes that maximize prospects for fair, full and impartial
decision-making and ensure that these decisions are just and
defensible. The protection of these processes is
protection of the integrity of the immigration program.
Bill C-31 fails to
preserve the processes which are essential for reliable and
just decision-making in cases of selection and removal. The
Bill strips existing review processes and limits existing
access to review tribunals to the point that unfair and unjust
determinations are inevitable. This is particularly true for
procedural protections presently afforded permanent residents
and refugees.
The Section is
especially concerned about provisions of C-31 that
specifically diminish the rights of permanent residents to
enter and remain in Canada and that deliberately weaken the
security of permanent resident status. The Bill also
systematically reduces or removes existing rights with respect
to sponsorship, right of entry, security of the person and
review of determinations to strip status and remove from
Canada. Bill C-31 is not legislation that commits to respect
for the status of immigrants. Rather, it is more concerned
with enforcement at the expense of immigrant rights.
Key Concerns
The Bill would:
1. Redefine the
status and right of entry of permanent residents and deny
residents entry into the country before their loss of status
is determined.
2. Allow for the
deportation of permanent residents without appeal
and without consideration of their circumstances
as result of a single criminal sentencing.
3. Deny access to
Federal Court review without leave, in all decisions under the
Act.
4. Raise the
barriers for access to the refugee determination process.
5. Allow for the
deportation of permanent residents and refugee claimants
before hearing of judicial review in Federal Court.
1. The status of
permanent residents
Permanent residents
are people who permanently reside in Canada but who have not
obtained Canadian citizenship. Many permanent residents have
lived in Canada for a long time. Many come to this country as
children. In virtually all respects, they can be
indistinguishable from Canadian citizens. They work, they pay
taxes, they raise families and they contribute to our
communities like anyone else. They are our co-workers, our
neighbours and our friends. Failure to obtain citizenship may
be the result of oversight, lack of appreciation for
ramifications, parents’ failure to include minor children in
their own applications for citizenship, or concern with the
loss of original citizenship through the operation of foreign
law.
Under the current
Act, permanent residents have a defined status and a
guaranteed right to enter Canada until their loss of status is
determined through inland processes.
Under the Bill,
there is no defined status for permanent residents.
Permanent residents, temporary workers, visitors, students,
refugee claimants and illegals are collectively defined as
“foreign nationals”, a term that emphasizes their foreign
origins rather than their immigration and establishment in
Canada.
The fundamental
right of permanent residents to enter Canada is significantly
qualified under the proposed legislation. Proof of
resident status would depend upon the carrying of a status
card that expires and must be renewed every five years.
On every re-entry, the permanent resident would be required to
produce the valid card and be prepared to satisfy an
immigration officer that they have physically resided in
Canada for two years in the five-year period and have complied
with the provisions of the Act.
Under the Bill,
permanent residents who are outside Canada when their card has
expired (or is lost or stolen) are presumed to not be
permanent residents. They would not be permitted to board
flights to Canada until successful application for renewal.
Permanent residents who appear at border ports of entry
without valid cards and without satisfying an officer of their
residency would be denied entry.
The potential for
erroneous denials of entry is considerable. Port of
entry and overseas officers will make determinations that
permanent resident status has not been satisfactorily proven,
thus disentitling the resident to return to Canada. The appeal
process is entirely unsatisfactory. A permanent resident
who is denied re-entry or renewal is permitted only a
paper appeal, without being entitled to attend in person or to
call any witnesses. Further, the resident would not be allowed
to produce any new evidence to demonstrate that they have
legitimately been residing in Canada and meeting the
requirements of the Act. Under the Bill, the appeal tribunal
is entitled to look only at the information that was before
the officer when making the decision that residence was not
satisfactorily proven. Failure of the appeal means loss of
permanent resident status.
The current
legislation permits permanent residents who must be absent for
compelling business, family or other needs, but who have no
intention of abandoning Canada as their home, to apply for a
returning resident permit before leaving Canada, or from
abroad. This procedure provides flexibility, and peace of mind
for returning residents. The new bill eliminates this process
in favor of an inflexible and arbitrary “one size fits
all” standard full of uncertainty for the resident. Nor does
the bill guarantee that the promises contained in existing
valid permits will be honoured.
The Bill sets out
new powers for a designated officer to compel any foreign
national to, at any time, participate in an examination and
answer all questions put to them. It is accepted and already
required that anyone (including citizens) must examined on
entry to Canada or on application abroad, but this new power
allows the right to examination to carry on without end. At
any time, under penalty of jail or fine, permanent residents
may be called in for examination. This new power is capable of
much abuse and is a significant infringement upon the right
against self-incrimination, the right of privacy and of quiet
enjoyment of status. The potential for harassment is
clear, particularly with respect to permanent residents
engaged in an appeal from a deportation order, or currently on
a stay.
The above changes
are obviously unfair and unwarranted. They would lead genuine
permanent residents to face hardship and abuse.
Recommendation:
The Section
recommends that the right of entry into Canada of permanent
residents be guaranteed until inland determination of loss of
status, with full appeal rights to the Immigration Appeal
Division. The existing provisions for returning resident
permits should be restored. The provisions for compelled
cooperation in investigations should be deleted.
2. Deporting
permanent residents without appeal process and without
consideration of their circumstances, as result of a single
criminal sentencing.
Under the Bill, a
permanent resident who is convicted of a “serious”
criminal offence and who receives a sentence of two years
incarceration would have no appeal whatsoever from a removal
order.
The issue is not
whether serious criminals should be deported from Canada or
whether permanent residents should be immune from deportation.
For more than 20 years, Citizenship and Immigration Canada has
had the power to deport any permanent resident on grounds of
criminality, subject to an independent review process that
allows consideration of the resident’s circumstances before
determining that deportation is appropriate. These include
whether the resident has resided in Canada for 25 years after
landing as a child, whether the offence was an isolated
incident or part of a pattern of criminal activity or whether
there is likelihood of re-offending or rehabilitation.
Bill C-31 has no
provision for independent review of such considerations
all of which safeguard against unnecessary removals. Indeed,
the Bill uses a simplistic and arbitrary rule to avoid
consideration of relevant circumstances.
This is
unacceptable. Permanent residents generally, and long-term
permanent residents in particular, deserve proper
consideration before the government decides to strip them of
their status and deport them. The Bill’s approach is
contrary to the recommendation of the June 1998 report of the
House of Commons Standing Committee on Citizenship and
Immigration that the government should seriously consider
protecting long-term permanent residents, particularly those
that came to this country as children, from deportation
determinations.
The denial of a
right to appeal based on an arbitrary rule that does not
distinguish between permanent residents who arrived six months
ago, and those who arrived 20 years ago, or as children, is
fundamentally flawed and unfair.
Recommendation:
The Section recommends that permanent residents not be subject
to loss of status and removal without access to a legitimate
process for considering all the circumstances of their case.
Permanent residents of five-year establishment should be given
an absolute right of review before the Immigration Appeal
Division with jurisdiction to review equitable considerations.
3. Requirement for
leave for Federal Court judicial review of all determinations
under the Act.
“Judicial
review” refers to the right of any individual to ask the
Federal Court to review a government decision on grounds of
legality and fair process. It is not an appeal, but
instead is a review of the legality of the decision. It is
available to any person affected directly by any government
decision.
More than 10 years
ago, the government imposed a requirement that an applicant
must obtain “leave” of the Court before they can apply for
judicial review of an immigration decision made in Canada. An
application for leave is a paper application which does not
provide for cross-examination on affidavits. The Court decides
these applications without reasons and the parties cannot
appeal.
The Section has long
criticized the leave process as an unfair barrier to
challenging immigration decisions made within Canada. The vast
majority of leave applications are denied, with no judicial
review or further appeal being allowed.
Bill C-31 extends the leave requirement to decisions made
overseas by visa officers. Indeed, under the Bill, no decision
made under the Act can be judicially reviewed without first
obtaining leave.
For most overseas
visa applicants, there is no review process other than
judicial review. Judicial reviews are an effective means of
requiring visa officers to reconsider bad decisions. In this
respect, the April 2000 Auditor General’s report has
confirmed the inconsistent quality of decision-making by visa
officers, and the lack of any process for quality assurance.
The report noted that consistency in decision making and legal
training are lacking in the Department.
These concerns will,
no doubt, be compounded by the imposition of the new Act and
selection criteria. By imposing a leave requirement, the
government is essentially removing a valid correction process
and is insulating its decisions from review. The
imposition of the leave requirement is consistent with the
overall thrust of Bill C-31 to remove review processes or
access to appeal mechanisms throughout the system. This
betrays a policy objective, very worrying to the Section, of
removing immigration decisions from meaningful or fair
challenge and of leaving department administrators as sole
deciders of the fate of individuals.
The time and
technical requirements for obtaining leave are strict and
unrealistic. If the applicant does not retain counsel in
Canada, receive advice and apply to the Canadian court within
15 days of the decision, the leave opportunity is lost.
Recommendation:
The Section recommends that the requirement for leave be
removed for all judicial reviews of determinations under the
Act. A leave requirement should not be imposed until the
Department has met the Auditor General’s concerns respecting
mechanisms for quality assurance in decision making by
overseas officers. Such mechanisms may include a process for
Alternate Dispute Resolution (ADR), allowing presence of
counsel at overseas interview, recording of interviews, or
maintaining provision for examination of officers on
affidavits in the leave process
4. Raising the
barriers for access to the refugee determination process.
The Bill purports to
reaffirm the objective of providing protection to persons
entitled to refugee determination, but its provisions actually
limit or prohibit access to the inland refugee determination
process.
Access to the inland
refugee determination system will be restricted by:
Preventing
claimants with improper documents from boarding aircraft to
Canada;
Imposing
stricter barriers to referral of claims to the determination
process; and
Allowing only
one application to the inland determination process in the
lifetime of the claimant.
Under the current
Act, a failed refugee claimant who leaves Canada and is absent
for at least 90 days can initiate a new claim upon return to
Canada. To curb abuse of this provision, Bill C-31
extends the absence period to one year and disallows any
further claim to a specialized and independent tribunal.
The claimant is allowed only a determination by the Minister
and is not allowed to present new evidence that could
reasonably have been obtained for the prior hearing.
These provisions are
excessive and will prevent genuine refugees from having access
to proper determination processes. At the moment, legitimate
claims are denied at first instance for a variety of reasons:
they may not be referred through error of fact, they may be
withdrawn or declared abandoned through inadvertence or
through poor counseling, or they may be denied through
insufficiency of evidence notwithstanding that the claimant
has a well-founded fear of persecution. Also, a change
of circumstances in the country of nationality may turn a
marginal claim into a strong claim.
Bill C-31 does not
provide for an overseas determination process parallel to the
inland process. Until such overseas process is provided,
there will continue to be a flow of claimants seeking access
to the inland process, and improper denial of access will
place genuine refugees at risk.
Recommendation
The Section recommends that the provisions of Bill C-31
limiting access to the inland refugee determination process to
once in a lifetime be revoked and reconsidered.
5. Removal before
Federal Court Review.
Bill C-31 provides
for removal of permanent residents and failed refugee
claimants prior to completion of the judicial review process
before the Federal Court. This is unacceptable.
The requirement for
leave provides for summary disposition of applications and
removes any argument that judicial review unnecessarily delays
removal. For refugee claimants, the risks of being returned to
the country of potential persecution, before any Federal Court
review, outweighs any benefits of potential removal. For
permanent residents, the dislocation, hardship and cost of
removal are substantial and should not be undertaken before
the final determination of a person’s status.
Summary
Bill C-31 is flawed
legislation that seriously and negatively diminishes
established rights of immigrants and refugees in Canada.
Bill C-31 is aimed at reducing established rights of status
and diminishing processes designed to protect those rights. It
is aimed at leaving the fate of individuals to practically
unchallengeable determination by department officials and is
for that reason inconsistent with the image of fair-minded
reasonableness which we want to project to ourselves and to
the world.
