Debates of the Senate (Hansard)

3rd Session, 40th Parliament,
Volume 147, Issue 40

Thursday, June 17, 2010
The Honourable Noël A. Kinsella, Speaker

Immigration and Refugee Protection Act
Federal Courts Act

Bill to Amend—Second Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Seidman, seconded by the Honourable Senator Di Nino, for the second reading of Bill C-11, An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act.

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak at second reading on Bill C-11, which will amend the Immigration and Refugee Protection Act.

I commend both Minister of Immigration and Citizenship Jason Kenney, and the Honourable Maurizio Bevilacqua, who have both worked hard to strengthen this bill. I also note that this bill was passed unanimously not only in committee but also in the House of Commons.

Honourable senators, we are truly privileged to live in a peaceful country, a country where we are afforded basic liberties, all of which are guaranteed under the Canadian Charter of Rights and Freedoms. Not everyone is this fortunate. There are many people in our world who do not enjoy these same privileges. Among these people are refugees. In 1951, the United Nations Convention relating to the Status of Refugees defined a “refugee” as “a person who, by reason of a well-founded fear of persecution, for reasons of race, religion, nationality, membership in a particular social group or political opinion, has had to leave their country.”

As honourable senators may have noticed, this definition provided by the United Nations does not include gender persecution. In 1993, however, Canada incorporated gender guidelines into this definition. Since its inclusion, gender guidelines have become an important aspect of the Canadian refugee system. One of the criteria found in the gender guidelines states: “Women who fear persecution solely for reasons pertaining to kinship because of the status, activities or views of their spouses, parents and siblings or other family members.”

Unfortunately, the gender guidelines are often overlooked. One of the fundamental reasons why they are overlooked is because these women have been persecuted by their families and not by the government.

Regardless who is doing the persecuting, be it the government or the family, these women are persecuted and require our assistance. Women who are victims of female genital mutilation, forced marriages and honour killings are examples of women likely to be found in this group. We all have heard examples of mothers fleeing their countries of birth with their young daughters who are threatened with female genital mutilation.

The minister and the chairperson of the Immigration and Refugee Board need to continue to accommodate these criteria in Bill C-11 to ensure these people are accounted for. The gender guidelines are an important component to this bill as women may be confronted with additional forms of persecution. Unfortunately, they are not the only group facing persecution.

A refugee fleeing his or her country due to his or her social affiliation is acceptable grounds on which to be granted asylum. In the case of Patrick Francis Ward v. the Attorney General of Canada, the Supreme Court of Canada set out grounds for claiming persecution based on membership in a particular social group. As has been stated in the gender guidelines, this definition included “groups defined by an innate or unchangeable characteristic.” In the Ward case, the court maintained that individuals persecuted on the basis of sexual orientation, gender or linguistic background, indeed, would be included in the definition. Therefore, persecuting an individual based on his or her sexual orientation is seen as adequate grounds for granting refugee status. This is in response to the many countries that persecute individuals based on sexual orientation. In some of these countries, individuals are hanged for being homosexual. This is why, in our country, we grant asylum to people who face persecution based on sexual orientation.

According to the 2010 Report on State-sponsored Homophobia, 81 countries consider homosexuality to be illegal. In Iran, Saudi Arabia, Sudan and Yemen, homosexuality is punishable by death.

Honourable senators, we know a number of issues will surface when this bill is forwarded to committee. I want to point out a number of issues that the committee will have to study.

The first issue is designated countries or, as the bill originally stated, a safe-country list. Countries we are less likely to identify as refugee-producing countries are placed on the designated countries list. The country list was one of the most controversial components of Bill C-11.

In its original form, this bill did not have any criteria for the list. However, the necessary criteria have recently been added. A country cannot be part of this list unless a committee consisting of representatives from outside the government approves it.

The new criteria include a requirement that there will be a minimum number of claims from a country with a high rejection rate. Under the designated countries list, it is now accepted that the time frames should be expedited. However, they must allow a person enough time to present a case.

Another issue with the list was its impact. The original proposal stated that persons on the list would not be granted an appeal. After a great deal of work with Maurizio Bevilacqua, the critic for the official opposition in the House of Commons, the government agreed to change the legislation so that now persons on the list are able to get an expedited appeal. This is in keeping with the position of the United Nations High Commissioner for Refugees. The aim of this provision is to fast-track their claims. However, honourable senators, as I already stated, claims relating to sexual orientation or gender, even if those persons come from designated countries, cannot be fast-tracked. I ask the committee to make observations in this regard.

The second issue is the personal information form. The personal information form will be replaced by an interview, the occurrence of which was changed from 7 days to 15 days and will be conducted by a Refugee Protection Division officer.

The personal information form functions effectively and does not need to be replaced by an interview. Although the interview takes 15 days while the form takes 28 days, the form is still more effective because it requires fewer resources.

Instead of a lawyer acting on behalf of the refugee, Bill C-11 currently calls for a Refugee Protection Division official to act not only as the information gatherer, but also to assess the information gathered. The committee will have to examine if this is a conflict. Specifically, the bill will replace the personal information form that details all the information relevant to the claim with an information gathering interview. In addition, to ensure that the process is fair, legal assistance should be available at this stage.

The third issue is the pre-removal risk assessment. In the present system, before a person can be removed, there is a pre-removal risk assessment application, which assesses the person’s risk in being returned to his or her country of origin. Under this bill, only new evidence can be filed in the pre-removal risk assessment. This may not be sufficient protection.

The new legislation makes the Immigration and Refugee Board the decision maker on the pre-removal risk assessment application. Honourable senators, I believe this is a positive change.

The fourth issue is the Refugee Appeals Division. Everyone agrees that the introduction of the Refugee Appeals Division is an important measure to improve the refugee system. The Minister of Citizenship and Immigration should be commended for this. The challenge is that the Refugee Appeals Division will only allow restricted evidence rather than the full record of the hearing. The new appeal division at the Immigration and Refugee Board will hear written appeals from negative claims. The key issue will be the time frame applied to appeals.

There is concern that the new rules will require appeals to be filed too quickly. This will not give enough time to claimants to obtain counsel and to allow claimants to file the appeal. The time frames are not in the legislation.

The committee should consider whether the time frame should be similar to those used at the Federal Court of Canada, which allots 15 days to the appeal and a further 30 days to file the appeal itself. Any less time will be unreasonable.

The fifth issue is the humanitarian and compassionate hearing. The committee will have to look at a number of issues to ensure the rights afforded to a refugee under the bill are not eroded. Originally in the bill, any humanitarian and compassionate application was barred for one year if a person made a refugee claim. I am pleased to report this has now changed. Furthermore, there was a provision restricting consideration of humanitarian and compassionate grounds to ensure it did not consider aspects related to risks covered by the refugee division. In the House of Commons, further clarification was added that humanitarian and compassionate proceedings were required to consider hardship if the refugee was to be returned to his country of origin.

Honourable senators, my greatest fear is that one day Canada’s doors will be closed to refugees. If the doors had been closed when my family knocked, it would have caused us great hardship.

I am committed to establishing a refugee system that Canadians have faith in. The day that Canadians lose faith in our refugee system will be a dangerous day for the many people in the world facing persecution.

Honourable senators, I arrived in Canada as a refugee. I am very aware that, if it had not been for the largesse of Canadians, my family and I would have suffered tremendous hardships. Instead, today my family is integrated into Canadian society. We are proud to call Canada our home.

People in Uganda are amazed at Canadians. They say to me, “You were thrown out of Uganda, the country of your birth. In Canada, you were made a senator?” They cannot believe the generosity of Canadians. All I can say today on my behalf and on that of my family is: Thank you for giving us asylum.

Some Hon. Senators: Hear, hear!

Senator Jaffer: You saved my family and me from great hardship. I now have the responsibility of ensuring there is always a credible refugee system for others who are persecuted.

Some Hon. Senators: Hear, hear!