EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 16, 1995

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[English]

The Vice-Chairman (Mr. Dromisky): I would like to call the meeting to order this morning. I thank everyone for appearing on time. Unfortunately, we don't have a quorum, but we have a reduced quorum. As the chairperson, I am going to call the meeting to order and continue immediately with our program simply because we have a very full agenda.

This morning we are very fortunate in having with us Audrey Macklin, who is a professor of immigration and refugee law at Dalhousie University. She is currently on leave and also is presently a member of the IRB. I was looking through her brief. I am extremely impressed with her background of experiences, which are very rich in the field, and we're looking forward to her presentation this morning.

Professor Macklin, you will start the session this morning with your presentation.

Professor Audrey Macklin (Individual Presentation): Thank you very much. In summarizing my presentation, I would like to review what I consider to be the main points that I am trying to make. I'll do that in the form of a question and answer. After I'm finished, I'll be happy to take any questions on other matters that I have also raised in my written text.

The first question that I'd like to put out for consideration is, why bother having guidelines at all? In response to that, I would begin by saying that all administrative tribunals, of which there are hundreds, must deal with attentions between a need for consistency in decision-making and the independence of decision-makers.

On the one hand, it's important for people who come before a tribunal to have confidence that wherever they appear in Canada before the tribunal, similar principles will be applied to their cases and that they will be judged fairly. On the other hand, individual decision-makers are independent and cannot be compelled to rule in a particular way.

A variety of techniques are available for trying to achieve a measure of consistency among decision-makers. I can review those in greater detail later if you wish. Guidelines are certainly one method of encouraging consistency that commentators tend to commend as being particularly useful, and the courts have also endorsed. That is, the courts in various cases have said that guidelines are a good way for administrative agencies to encourage consistency among decision-makers.

There is nothing inherently wrong or problematic about guidelines encouraging decision-makers to move in a particular direction, as long as the guidelines don't compel decision-makers to do so.

A reason that administrative agencies like to have guidelines is that the laws they interpret are often drafted in a vague and general way. That's no criticism of lawmakers; that's just the nature of the legislative process. Also, new situations can arise over time that legislators may not have contemplated when they passed the legislation initially.

Finally, a tribunal may grow in size, and it may be difficult for members to communicate on a regular basis with one another about various approaches to given issues.

For all these reasons, guidelines provide a handy and useful way of enabling a tribunal to, on the one hand, encourage consistency in the name of fairness, while maintaining the independence of individual decision-makers. As I mentioned earlier, lots of tribunals have them. The CRTC is one example; the Ontario Securities Commission is another; there are many.

Indeed Parliament, you, in your wisdom, explicitly gave the chair of the Immigration and Refugee Board the power to make guidelines under subsection 65(3) of the Immigration Act.

One may well say that they understand the utility of guidelines, they understand why guidelines might be a good thing to have, but they don't really understand why the Immigration and Refugee Board needed guidelines about gender in particular. Now the question turns to why there are guidelines about gender.

I wasn't a member of the Immigration and Refugee Board when the guidelines were passed and, in any event, I'm not part of the corporate management of the board. As an academic, however, I can offer a couple of insights about why gender would seem to be a good topic for guidelines.

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First, the relevance of gender to refugee determination extends across a variety of areas. Gender may be relevant to the kind of process that one adopts in a hearing room, such as who is going to be hearing the case and what sort of measures might be advisable to make it possible to get the best evidence possible available.

Second, gender may be relevant to the question of documentation. Members are often concerned about whether there is documentary evidence in support of a claim; that is, with respect to human rights in a given country. Until very recently, it was very difficult to obtain documentation about women's situations in particular. I believe that situation is changing, but the point I am making is that gender may also be relevant to documentation.

It may be important to consider whether documentation may be limited because the research hasn't been done, as opposed to there being no problem to report on.

Third, gender may be relevant to the substance of the refugee definition itself. For example, there are gender-specific forms of persecution. That is, gender may affect the characterization of what constitutes persecution.

Certain kinds of things are done to women that for various reasons just aren't done to men. It may be important to consider that in evaluating whether those sorts of actions constitute persecution. Just to give a quick example, I suppose female genital mutilation would be an obvious example of something that is done to women and not done to men.

Our corpus, our body of jurisprudence, about what constitutes persecution has been built up over the years without much attention to those gender-specific forms of persecution. It may be important to think about how gender is relevant to designating something as persecution.

On another level, gender may also be relevant to the question of the grounds of persecution. That is, it's important to think about whether gender is a basis for persecution or a reason that women are persecuted. Obviously women may be persecuted for all sorts of reasons, but gender may be relevant as a reason why somebody is persecuted.

For all those reasons, you will see how gender presents itself as a topic of wide-ranging impact on refugee determination. It may be difficult for any single member on his or her own to contemplate it in its entirety. It may be useful for members to have an analytical framework within which to consider the relevance of gender that deals with the various ways in which gender is relevant in a consolidated and systematic way. For that reason, one may think gender as a topic is suitable for guidelines.

One might say they can see the utility of guidelines, they understand why guidelines are a good idea in general, and they may even accept that guidelines on the topic of gender seem like a good idea, but they may disagree with the specific content of these particular gender guidelines. In other words, they don't think what these guidelines say about gender is appropriate.

In response to that, what I would like to do is direct you to a table in my written text that starts on page 3. That table attempts to show that the propositions you find in the gender guidelines represent, by and large, just a gender-specific application of existing legal principles. In other words, it is already a principle of refugee law that punishment that is vastly disproportionate to the crime for which it is being inflicted may constitute persecution.

That's a principle that exists quite apart from the gender context. To say that 74 lashes for refusing to wear a veil in Iran constitutes persecution is simply an application of that general principle in a gender-specific context.

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The remainder of my chart gives many more examples of general principles of refugee law, practical examples of how it is applied, and examples of how it is applied in a gender-specific context. What that's trying to demonstrate is that the propositions contained in the guidelines are rooted in general and well-accepted principles of refugee law. They're not drawn out of the air, as it were.

Another purpose of this table is to indicate that many of the propositions contained in the guidelines either have come from judicial decisions or have subsequently been endorsed by judicial decisions. That's really a way of saying the guidelines are a correct interpretation of the law.

For example, the guidelines suggest that spousal abuse, systematic and repetitive domestic violence, may constitute persecution. That's just a recommendation the guidelines are making. But when a court, as in Narvaez or in Mayers v. Canada says, yes indeed, domestic violence may constitute persecution, that becomes a binding principle that all panels of the refugee division are bound to follow. It's also a way of the court saying that the guidelines got it right.

My point there is that the content of the gender guidelines has in many ways been inspired by judicial decisions or have been subsequently endorsed by them, and are therefore binding on members of the refugee division.

Finally, I'll deal very briefly with a question that I think may arise in the course of your deliberations, based on what I understand other presentations to have said.

I have not conducted a systematic study of the case law following the guidelines. That is, I have not systematically looked through all the board decisions that have considered the gender guidelines, or whether gender guidelines would have been relevant. I cannot comment, therefore, on whether there is a consistent application of the guidelines or not. However, to the extent that others may take the position that there is inconsistency in the application of the guidelines, I would invite you to consider what the causes of that might be and what the possible solutions are.

I understand there is some suggestion that legislating the guidelines, somehow turning them into law, might be a better way of ensuring consistency. I would just like to say briefly, to take an example in the judicial context, two judges may deal with the same Criminal Code provision and may deal with very similar fact situations, yet come to different conclusions. The fact they are dealing with a law as opposed to a guideline really doesn't change that, so I have certain doubts, if you believe there is a problem with inconsistency, that the problem can be resolved through legislation.

Those are the points I wished to cover in my oral presentation. There are many more in my written text, dealing with a variety of matters. I think I'd like to pause here and perhaps take your questions.

The Vice-Chairman (Mr. Dromisky): Thank you very much.

We will start with any questions Madam Debien may have.

[Translation]

Mrs. Debien (Laval East): Good morning, Professor Macklin. I want to welcome you to our committee and thank you very much for your presentation. You have painted quite a good picture of all the procedural, documentary and substantial problems.

As far as substance is concerned, you did mention one aspect that struck me given what you wrote in your brief. You insisted on the independence of decision-makers and on the importance of having consistent principles so that the members make consistent decisions.

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Towards the end of your presentation you said, and please correct me if I'm wrong, ``Legislating the guidelines might be a better way of ensuring consistency''. Is that what you said?

Prof. Macklin: I will answer you in English.

[English]

I would not recommend nor would I advise that legislation is an appropriate solution if you think there is a problem of inconsistency.

I can explain in greater detail my reasons for saying that. If you believe individuals will take similar fact situations and interpret them differently, there is very little legislation can do to change that. Judges take similar facts and interpret them differently.

If you think there is a problem because members are not applying the guidelines - that is, they're ignoring the guidelines - there is some case law coming out of the Federal Court that says it is an error of law for boards to refuse to consider the guidelines. They may choose not to follow them, but they have to at least consider them and indicate why they are not following them.

Finally, as I mentioned earlier, while the guidelines are not binding on decision-makers, judicial decisions are. To the extent that court cases have upheld certain principles in the guidelines, it's no longer open to decision-makers to ignore them.

Decision-makers no longer have the authority to say, for example, spousal abuse can't constitute persecution. They no longer have the authority to say gender cannot be the basis of a social group. That's not because the guidelines say so; it's because the courts have said so.

[Translation]

Mrs. Debien: There is a nuance there because you do say on page 9 of your brief that it would be better to amend the Immigration Act by adding gender as a new ground of persecution to the definition. It contradicts slightly what you have just said, although you've explained it very well.

A lot of people think that, because of those gender guidelines, there will be an influx of women claiming refugee status in Canada on the ground that they are victims of discrimination in their home country. Given your experience with the commission and what you know about what has happened since the guidelines were made in 1993, what do you think? Some groups and some people circulate that opinion and I would like to know what you think about it.

[English]

Prof. Macklin: I did not come prepared with statistics on the numbers of women -

[Translation]

Mrs. Debien: I just want to know what is your personal opinion of it.

[English]

Prof. Macklin: I understand.

It is not my impression that there has been a flood of women arriving, nor will there be in the future, at least not in the foreseeable future. One of the reasons for that is simply the practical difficulty faced by women in trying to escape situations of persecution.

For cultural, social, financial and all sorts of reasons, it is often more difficult for a woman to flee her country of origin or community than it is for a man. Access to resources, physical safety, and cultural messages about the ability of women to live or to take independent action all impose constraints on women. In a sense the very reasons that give rise to women claiming refugee status in Canada also impede their ability to come to Canada and claim refugee status.

I would make another point as well. Even if I were wrong about the numbers of women coming - although I really believe the numbers are quite small and probably will continue to be - it has never been a principle of refugee law that you cannot be a refugee because if you were a refugee, too many other people would also qualify.

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Innumerable people around the world right now are persecuted for reasons of race, religion, nationality, political opinion, or membership of a social group. But never would one say to claimant A or claimant B, ``You can't be a refugee, because if we say yes to you, there are too many other people we would also have to say yes to.'' That's never been a principle of refugee law, and it certainly shouldn't be a factor when you think about women as refugees either.

Mr. Assadourian (Don Valley North): I have concerns to express.

I was going over page 8, ``Compelling Reasons''. In the second paragraph you give a hypothetical example. You say, ``Suppose a Bosnian Muslim woman is raped and forcibly impregnated by opposing forces as part of so-called `ethnic cleansing'.''

First, I think if you give hypothetical examples, you should not use national identity, and second, you assume here that Bosnian Muslim men don't rape women. You're trying to fix something by giving a hypothetical example that is offensive to some people. Do you get my point?

Prof. Macklin: Yes. I apologize. I had no intention to give offence. That's not really the point, though. If I have in fact given offence, I'm sorry.

Mr. Assadourian: All right. Thank you.

[Translation]

Mrs. Debien: Professor Macklin, you have provided us with a very good theoretical framework of the problem we have been dealing with for a few months already. If I understood correctly what was said at the beginning, you were a member of the IRB before the guidelines were adopted.

[English]

Prof. Macklin: No. I am now a member, but I was not a member when the guidelines were passed.

[Translation]

Mrs. Debien: I'm sorry, I missed the beginning of your presentation. That's why I was not clear on your status.

Are you presently a member of the association? Fine. And since you have been a member of the IRB, have you felt that the other members were really concerned with the issue we are discussing this morning? Do you think that all members are sufficiently aware of the problem?

Maybe I should not ask you this question. As women, we are almost born with this awareness. Let's talk about all members of the board in general. We have heard from many organizations who deal with women refugees and they have told us that the members had not enough training and information on those problems. Some even said that visa officers abroad had absolutely no knowledge of those problems particular to women refugees.

I am not asking you to pass a judgement on your colleagues, but I would like to know what you think and what your impressions are.

You do say a few words about this in your brief, but it is at a very theoretical level and I would prefer if you could share your experience with us as well as your personal opinions. What should we do against this perceived insensitivity, this impression that members of the IRB and visa officers abroad lack information, training and documented knowledge of this situation?

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Those are the main problems that have been submitted by the various organizations we have heard.

[English]

Prof. Macklin: I must admit I work in a very small region and have relatively little contact with the vast majority of members. I don't feel I'm in a position to provide much response in terms of my personal experience.

What I would say, though, is if you have been hearing commentary from organizations that deal with members all over the country and there is dissatisfaction, I certainly think that is something to be taken seriously in terms of future training of members. I am not taking a position on whether I think the members are sufficiently sensitive or not, in part because I can't do so and in part because I have very limited experience in view of the very few people I deal with.

I think training is always a good thing. Further training and consciousness-raising is always a good thing. It isn't a criticism of members nor is it a criticism of any decision-maker to suggest there's always room for improvement and increased sensitization. I wouldn't except the Immigration and Refugee Board from that, just as I wouldn't make an exception for any administrative tribunal for that.

With respect to visa offices overseas, the Immigration and Refugee Board certainly has no jurisdiction over them. In my recommendations I suggest there ought to be formal contact between members of the Immigration and Refugee Board with a particular interest or specialization in gender issues and visa officers overseas, for the very reason you suggest. There seems to be a real concern about overseas visa officers and the way they are approaching gender cases.

The Vice-Chairman (Mr. Dromisky): Thank you very much.

We'll let Mr. Mayfield collect himself and get organized and jump over to Mr. Peric.

Mr. Mayfield (Cariboo - Chilcotin): Thank you, Your Highness.

Mr. Peric (Cambridge): Professor, I would just like to continue on Sarkis' question, since the situation in Bosnia is very familiar to me.

What have you done up to now, as an organization? Have you contacted refugee camps in Croatia? Have you informed the UN? Of course they knew what was going on, especially with rapes in Bosnia, but in many cases people approached me personally to help them get refugees from Bosnia to Canada.

How far did you go? Why did you wait so long? Why didn't you approach this committee before?

The Vice-Chairman (Mr. Dromisky): Mr. Peric, I think your question might be classified as out of order. I think it's impossible for our witness to deal with that issue, which is out of the realm of her responsibilities, because my understanding is that she deals with cases in Canada and not with overseas offices.

Is that correct?

Prof. Macklin: That's correct.

The Vice-Chairman (Mr. Dromisky): If you wish to respond to the question, I'll permit you to do so, or to add anything you would like to his area of concern. It's a special personal concern.

Prof. Macklin: I am only an individual member. I only deal with cases that come before me. It is always a concern to all of us.

This really goes back to an earlier question Madame Debien asked about documentation. We always want as much information as we can get, and we often seek as much information as we can get. We make special information requests. But my job is only to deal with people who come before me. I have no jurisdiction or authority over any other matters.

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The Vice-Chairman (Mr. Dromisky): Thank you very much. We will now go over to Mr. Mayfield.

Mr. Mayfield: Good morning.

My concerns with regard to the issue we're discussing are around the priorities. I guess I'm always asking, and perhaps I should ask you, when we're trying to sort out all of the refugees and their needs and desperation and our limited ability to deal with that enormous problem, how do we prioritize? Who has first priority, as we look at all the claims of people who approach us?

Prof. Macklin: When people come to Canada and make refugee claims, there is no priority among those who have a well-founded fear of persecution. If they pass that threshold, they're in. If they don't pass that threshold, they're out. That threshold doesn't vary according to how many claimants there are at a given time. Either they have a well-founded fear of something that constitutes persecution for a convention reason, in which case they are convention refugees, or they do not meet that test.

Mr. Mayfield: I guess that also raises the issue that we're still looking at that large global pool of refugees, some of whom are able to come to our country and some are not. That still begs the question of where our responsibility should be first focused. Going on from there, I guess I would like to ask you whether perhaps the focus of our attention should be transferred from the inland refugee process to foreign selection.

The Vice-Chairman (Mr. Dromisky): Mr. Mayfield, is your question related to the guidelines on the gender issue? Is that what you're referring to?

Mr. Mayfield: That's true, Mr. Chairman, the guidelines must be applied, but we still have to sort out this question of to whom they're applied and how.

The Vice-Chairman (Mr. Dromisky): If she wishes to respond, the witness may do so.

Prof. Macklin: I'm not sure I can respond. We have people who come to Canada claiming refugee status. They will continue to come and claim refugee status. Some of those will be people with a well-founded fear of persecution for a convention reason. There is no policy, there are no gates high enough or locks good enough to stop people from fleeing and coming to Canada. Some of those people will have a well-founded fear of persecution, and it is my belief that cannot be changed.

Mr. Mayfield: We've heard from two former IRB members that the gender guidelines can be used to tailor refugee applications to improve their chances of acceptance. Would you agree with that assertion?

Prof. Macklin: How would they be used to tailor claims? It's not clear to me how that would be done.

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Mr. Mayfield: They would be used to mould the application they have to fit the guidelines, rather than use the guidelines necessarily to make a selection. I think the term ``boiler-plate'' was used.

Prof. Macklin: Really? I don't know. It kind of assumes that refugee claimants are sitting around reading the guidelines, which would surprise me.

Mr. Mayfield: How about their representatives?

Prof. Macklin: Are you suggesting that their lawyers are counselling them to -

Mr. Mayfield: It's not me suggesting it. It's former IRB members who have suggested it.

Prof. Macklin: I would not suggest that.

Ms Cohen (Windsor - St. Clair): They didn't get reappointed, then.

Mr. Mayfield: Either that or they resigned, I'm not sure which.

Prof. Macklin: I have no reason to believe that is going on. I have no evidence on which such speculation could be based. I don't know what evidence those other individuals were basing their conclusions on. I don't have any evidence of that.

The Vice-Chairman (Mr. Dromisky): Thank you very much.

Ms Cohen: Implicit in the last series of questions was a suggestion that somehow we have to set priorities because there are just too many people coming in and making claims and taking up space in Canada -

Mr. Mayfield: No, I think that's inaccurate. You're using my questions and I think that's an inaccurate conclusion -

The Vice-Chairman (Mr. Dromisky): Let her continue, please.

Ms Cohen: Thank you, Mr. Chairman.

Mr. Mayfield: I'm tired of having people put words in my mouth.

Ms Cohen: I can wait until Mr. Mayfield is finished going on.

Mr. Mayfield: I would just like you to ask your questions without referring to me.

The Vice-Chairman (Mr. Dromisky): Would you continue, please.

Ms Cohen: Implicit in the last question was a suggestion that for some reason we need priorities within the selection system. Implicit in that, I would suggest, is also the suggestion that somehow we're reaching our limits, or there are too many people applying, or there are people applying who are using -

Mr. Mayfield: Mr. Chairman, there was nothing implicit in that, nor intended in that regard.

The Vice-Chairman (Mr. Dromisky): We will accept your statement. Ms Cohen, will you continue, please.

Ms Cohen: I'm sure that as a member of the IRB you keep an eye on statements that come from the government in terms of projections of numbers of refugees we're expecting to receive in the country in any given year, numbers that fall within immigration projections we give on an annual basis. I understand also that the IRB keeps track of the number of applications it gets, the number of applications it rejects, the number it accepts and I would suggest that in the past few years, or the past many years, the number of refugee claims accepted has never reached the numbers that were projected by the government. Isn't that correct?

Prof. Macklin: My understanding is that visa officers abroad, in their selection, have not met the projected annual quotas for the last few years.

In terms of the IRB, I must admit I don't know what goes on in terms of the corporate planning. All I do is hear a case and decide whether that person meets the definition or not. I have no knowledge of any global estimates or projections. Indeed, that's simply not my role. All I can deal with is somebody in front of me.

I do know that visa officers abroad have not been meeting their quotas. I don't know the reason for that. I suppose one may think there is a dearth of refugees in the world, so they can't make their quotas, or one may think that perhaps the selection process is being applied in a way that's unusually strict. I leave that to you, the members, to try to discern what the reason for that might be.

Ms Cohen: The other issue I wanted to address that came out of other questions was that of the differences, the suggestion that we might look at some difference between inland claims and offshore claims. Have you ever seen any evidence that simply because a claim is made from within Canada, for some reason that claimant feels less persecuted or was any less persecuted than someone who makes a claim from offshore? Is that part of your consideration?

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Prof. Macklin: It's not part of my consideration. I would point out, though, that the criteria the Immigration and Refugee Board uses to determine if someone is a refugee is the refugee definition, full stop.

My understanding is that visa offices abroad utilize the refugee definition plus some measure of whether the individual will present as a good settlement prospect. I don't know how those two competing criteria are reconciled because one can well imagine that there may be people who have a very intense and well-founded fear but may be poorly educated and may not present the best prospect for quick settlement.

I think it's important, and I'd like to return this to the gender issue and point out that if overseas selection puts weight on one's settlement prospects in addition to whether one has a well-founded fear of persecution, I believe this will have an impact on the proportion of women who are selected overseas as refugees, because in most places in the world women have less access to education, resources, and a variety of those sorts of things.

According to the measures that many people utilize to decide whether somebody is a good settlement prospect or not, women may not fare as well as men. I think that is a significant gender issue in terms of overseas selection.

Ms Cohen: Thank you.

The Vice-Chairman (Mr. Dromisky): Thank you very much. We'll conclude our presentation by Professor Macklin, but I have one general question. I'm curious about the relationship between the rules and regulations and the laws of the land versus the laws of another land from which a refugee might come.

Is there any kind of relationship being developed between the countries on that level, in terms of laws? Do they conflict with each other in this process? Do laws from another country interfere with and prevent refugees from appearing before us? How do we reconcile the differences in laws of the land? What type of relationship does exist between the laws of the land? Does that prevent you from carrying out your job and following the guidelines properly?

Prof. Macklin: What kinds of laws did you have in mind?

The Vice-Chairman (Mr. Dromisky): I'm referring to whatever the codes and the laws might be in any country from which refugees might come. Do we sit back and say we can't touch refugees from that country simply because it's a very sensitive issue in terms of international law, or because of our diplomatic relationships because we have signed conventions and signed agreements with that country? There are all kinds of forces out there in the legal field and legal sense.

Prof. Macklin: If I understand your question correctly, part of it has to do with whether Canada's relationship with countries from which refugees come ought to be or is a relevant factor in refugee determination. Is that the question?

The Vice-Chairman (Mr. Dromisky): Yes.

Prof. Macklin: No, it is not a relevant factor. The refugee convention is designed to extend protection to people who flee persecution. The relationship between countries and not wanting to hurt feelings or insult the reputation of another country is simply not a relevant consideration. The refugee convention is about protecting people who need protection and anything that would interfere with or taint that decision-making process with concerns about what's good for diplomatic relations is simply extraneous to the system.

The Vice-Chairman (Mr. Dromisky): Thank you very much for appearing before our committee today.

Mr. Mayfield: Before this concludes, I would like to make a short statement, if I may, please.

The Vice-Chairman (Mr. Dromisky): Yes, you may do so.

Mr. Mayfield: Thank you very much.

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For the record, I would like it to be clear that my concern is not with the numbers, but with the priorities. I object to the assertion that Ms Cohen has made in that regard.

My concern is that the priorities are not accurately made. We hear of reports of people coming in as refugees and then returning to vacation in the countries from which they sought refuge. Sri Lanka has been reported quite frequently.

Second, when we hear of women seeking to have refuge from intolerable family situations coming to the country and then attempting to sponsor those same family members to come to Canada, I think we have to look at the priorities. There are a lot of people who need what we have to offer, who need refuge.

The Vice-Chairman (Mr. Dromisky): Those concerns have been raised in the past and are already recorded. Thank you very much, Mr. Mayfield.

Thank you very much.

Prof. Macklin: Thank you.

The Vice-Chairman (Mr. Dromisky): We will now have our next group of witnesses from the Refugee Lawyers Association. We have Christen Marshall, an executive member of the association. We have Connie Nakatsu, and she is also an executive member of the association.

Thank you very much for appearing before us this morning.

Ms Connie Nakatsu (Executive Member, Refugee Lawyers Association): I'll just briefly introduce ourselves. The Refugee Lawyers Association, as the name indicates, is an organization of lawyers who practise immigration law, but more specifically refugee law.

We appear before the Immigration and Refugee Board regularly. We therefore hope to give you a different perspective on the gender guidelines. You've had the benefit of reading our brief, so I will not read it to you.

Having read the submissions of those who have appeared before us, we have chosen not to reiterate what has been said by those groups, such as the Canadian Council for Refugees or Amnesty International. We do endorse their positions, and we hope that the issues upon which we have focused are somewhat different.

We have chosen to focus on the need for the gender guidelines, and this is despite the fact that the Supreme Court of Canada decision in Ward v. Attorney General of Canada has come down. Very briefly, this decision supports the analysis in the gender guidelines.

In the submission, we have used cases to illustrate the need for the gender guidelines. We've also discussed why we believe further policy guidelines need to be developed in areas such as applications for compassionate and humanitarian grounds.

Although it's not a stated mandate of this committee for briefs on the gender guidelines, we've taken this opportunity to protest the imposition of the $975 right to landing fee. We've done it based on a gender analysis.

Very briefly, this is what our submission has addressed. We thank you for this opportunity to appear before you, and we'd be pleased to answer any questions you have about our brief. Thank you.

The Vice-Chairman (Mr. Dromisky): Thank you very much. We'll start with Madam Debien.

[Translation]

Mrs. Debien: Good morning ladies. Thank you for appearing before our committee. Your brief got to us only yesterday. Unfortunately, it was not translated, therefore I didn't have the pleasure of reading it in my first language to fully appreciate its subtleties.

Apart from that, I would like you to develop your last comment on your opposition to the $975 right now imposed by the minister on individuals who want to immigrate to Canada. I would like to know why you are opposed to this right if you don't mind.

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[English]

Ms Christen Marshall (Executive Member, Refugee Lawyers Association): In our submission we tried to focus primarily on the impact of women, and in this case refugee women.

We're opposed to the imposition of this fee on top of the processing fee that was proclaimed in April 1994. There's a $500 processing fee for an application for landing, and an additional $100 for a dependant.

We set out in our submission, at page 8, that once a woman is accepted as a convention refugee, she has 60 days within which she must file her application for landing. That's pursuant to the Immigration Act and regulations.

She is at risk of not having her application processed and of remaining in limbo if she doesn't have the requisite fees. Now the imposition of this additional fee is proving to be very onerous to many of the people we represent, particularly women who may have come here with dependent children and who are not currently in the workforce.

It is our position that there hasn't really been adequate consultation or discussion about this fee. It was announced with the budget, and we're concerned that the lack of any consultation has failed to appreciate the impact.

We would like to see the fee waived for people who've been found to be convention refugees in need of Canada's protection. This would be in keeping with our humanitarian tradition, or at the very least in the alternative, since it's a right of landing fee, we'd like to see it perhaps collected at the end of the landing procedure, which can easily take in the neighbourhood of 12 months. This might enable people to see what they can do to raise the money.

Ms Nakatsu: I might add as well that women have traditionally earned less. I think even in Canada there's data available to indicate that women have earned less, and in many countries women are less well educated. They haven't had the opportunities that we're afforded here. They may, therefore, either be working in lower paying jobs or they may require some retraining in order to work in Canada. We feel that if they have some time to work and save the money, they would be in a better position to pay.

We did state that we could see the right to landing fee paid at the end, but preferably we would like to see it waived completely. Women often come with their dependants, their children, and the additional money is very often hard for them to find.

Ms Marshall: One last thing I failed to mention is that without payment of this fee, not only does the application for landing not get processed but if there are family members abroad, dependants or children in vulnerable situations in the countries of origin, they're stuck there. Nothing will commence to get them over here to safety and to reunite the family.

Mr. Mayfield: Since we're talking about money, I'm wondering, because I don't know, who pays the refugee lawyer.

Ms Marshall: Generally the majority of our cases are funded by the Ontario Legal Aid Plan.

Mr. Mayfield: Would there be other sources besides that?

Ms Marshall: There are some. A definite minority of claimants have the resources to pay lawyers privately. By and large, most come without savings or funds for that.

.0925

Mr. Mayfield: What about in other parts of the country? You mentioned Ontario. Would each province have a similar means?

Ms Marshall: It's my understanding there's a similar system.

Ms Nakatsu: Quebec has a similar system, but I'm not sure about the other provinces. I think British Columbia has a similar system as well. I believe those are the three provinces that probably have the majority of people coming in as refugee claimants.

I should add that my colleagues and I have done many cases for free, when we feel that they are meritorious, and they cannot get funding.

The Vice-Chairman (Mr. Dromisky): To all members of the committee, would you please try to direct your questions to the guidelines. This is the reason we brought the witnesses here.

Mr. Mayfield: All right. It's been said that the guidelines are to be more of a tool than a rule. Is this true in your experience?

Ms Marshall: I would say definitely so. They are neither mandatory nor binding. In my experience, they are a tool and there isn't a set-out program; it's just an informative thing.

Each claimant that we represent has varied fact situations, and it's from the guidelines that we borrow either by analogy or by rule. In some cases, it is with some regret that it's not more rule-like. As you see in our brief, there are many situations in which the guidelines are not followed at all, in clear breach of both the Supreme Court of Canada decision in Ward v. Attorney General of Canada and the guidelines themselves.

Mr. Mayfield: Can you then just explain how you use the guidelines?

Ms Nakatsu: I use the guidelines following through some of the analysis and sometimes with the fact situations given, to see whether my claimant might or might not fit within those. I use those guidelines not always to see whether my claimant fits in, but for the analysis I do. This is especially when I'm making my submission at the end of a case to argue it, and to sensitize the members to what they should be looking at in terms of the case itself and how the facts fit or don't fit into the guidelines.

I find it's a tool to be used not only by the board members and the refugee hearing officers, but also by lawyers themselves, and to make us aware of what we should be looking for.

Mr. Mayfield: I think an advocate's first responsibility is to satisfy the claims of your client upon your time, your skill, and services. Would you say that the guidelines are used in a way that if they can help your case you will use them, but if they won't help your case you will try another means to get what you're being hired as a lawyer to do? I'm wondering about the legitimacy of the guidelines if they're not always used, and if you just use them if it's convenient or to promote your case.

Ms Marshall: The guidelines are one item in a collection of things that are pertinent and relevant for the board's consideration at a hearing.

The guidelines in and of themselves will not be sufficient to have a woman who is making a gender-based refugee claim accepted. We spend a great deal of time collecting documentary evidence also to support the claim. The guidelines in that way are only a tool to educate regarding the issues to be looked at. In many cases the issues also then have to be corroborated with objective evidence about the situation in the country of origin.

I may be misunderstanding your question. There's a collection of things to be considered: the oral testimony of the claimant, which is her experience and only her experience, and that has to be given weight; the documentary evidence; and then the guidelines fit within.

But you don't just tender the guidelines and say ``This claim fits; accept her.'' There's a lot more to it.

.0930

Ms Nakatsu: I'd like to add something as well.

As advocates, we can't always just ignore the existence of something like the guidelines. We might think our case isn't very strong if we point out the guidelines. At the same time, that ignores the fact that the board members and refugee hearing officers are very aware that the guidelines exist, so I always try to point out the strengths and weaknesses in my client's case.

I don't think you can ignore the guidelines just by saying they weaken your client's case.

Mr. Mayfield: You mentioned that the courts themselves were critical of the lack of use of -

The Vice-Chairman (Mr. Dromisky): Your time's up, Mr. Mayfield. Thank you very much.

Ms Cohen: I assume you're both members of the Law Society of Upper Canada. Is that correct?

A witness: Yes.

Ms Cohen: Perhaps you could explain to the committee what would happen if you, as members of the Law Society of Upper Canada, were to counsel a client to testify to things that were not true in order to tailor her claim to the guidelines. What would happen if you got caught doing that?

I'm not suggesting that you're doing it. Someone else has suggested that the guidelines might be used to tailor claims. Would you please explain to the board just exactly what happens to a lawyer who makes up evidence or counsels a client to make up evidence and who uses, for instance, guidelines to tailor evidence? What would happen?

Ms Marshall: It's simple. We have a code of conduct that we follow in the Law Society. If you counsel a claimant to perjure herself, you can be disbarred.

Ms Cohen: In your experience, have you ever known any lawyer to take that risk or to do that?

Ms Marshall: I haven't.

Ms Cohen: The guidelines in a tribunal I would suggest can be a very useful vehicle for you in assessing how good your client's case is and in counselling your client on whether she has a case to pursue or not and whether she really does fall within the definition of a refugee or not. Would that be a fair use of the guidelines for you?

Ms Nakatsu: That's the way most of us would use the guidelines. The people I know within the profession and the members of the association do use them in that way, along with case law and the documentary evidence we have before us.

Ms Cohen: The guidelines themselves then form a tool that helps you to filter out, for instance, a weak or bad claim or a claim that perhaps you, as counsel, think shouldn't be brought before the board.

Ms Nakatsu: Yes. It's always difficult, but often we're in the position of saying ``You don't have a claim.''

Ms Cohen: So this happens.

Ms Nakatsu: Yes.

Ms Cohen: Then the use of the guidelines would save a great deal of time, would it not, in terms of focusing on issues and making sure that when you go before the board, you're not covering the waterfront when you can focus on two or three things that will allow you to convey the message your client has?

Ms Marshall: I think it's important that we're emphasizing the guidelines, but a lot of what our presentation includes is that it's the guidelines in conjunction with the law and that there are certain legal requirements, as set out in the Ward decision.

You may have a woman who you think fits within the guidelines, but then it's a legal requirement of the Ward decision that if it's an example of domestic violence, you have to go about documenting the state's inability to protect. The guidelines are definitely helpful in assessing whether to go to the board or not, but there are other relevant factors that work together.

.0935

Ms Cohen: You're a good counsel; you're running ahead of me. I'm coming to that.

The guidelines in and of themselves then aren't what make or break the case. They only put you in the ballpark so the board can apply the law to the fact situation you present. Would that be a fair assessment?

Ms Nakatsu: That would be correct. It is just one of a series of things we present. We couldn't do our work if we had the guidelines alone. We do have to move on to use the other things as well.

Ms Cohen: Say I come to you and say I'm from foreign country X and I have a gender persecution claim, and I set out my fact situation for you. Assuming for the moment that you keep in mind the guidelines, the statute law and convention - court decisions - don't I ultimately have to say to the board ``Here's what happened to me in country X before I came here''? And ultimately doesn't the board have to make the decision based on whether they think I'm telling the truth or not?

Ms Marshall: Both on whether you're telling the truth or not and on whether the evidence supports a well-founded fear.

[Translation]

Mrs. Debien: Several groups and organizations have talked to us about the inclusion in the international convention and the Canadian law of a sixth ground justifying refugee status claim. Unfortunately, as I told you earlier, I didn't have time to read your brief. I would like you to give me your opinion. We have had divided opinions on this issue.

Secondly, in your experience as consultants, what are the main problems met by women refugees other than the landing fee of $975 you mentioned earlier and that constitutes another barrier to accessibility? You must have seen in your day-to-day practice other important problems facing women refugees and I would like you to list them and talk about them a little more.

[English]

Ms Nakatsu: I would say on the issue of the sixth ground our membership is quite divided. Many believe gender should be included, and many of us believe if we use things like the guidelines, the case law, and the international conventions, we don't need the sixth ground itself, but what we really need to do is develop the other tools and instruments and use those rather than adding the sixth ground. It is something that has divided our membership.

We haven't come to anything definitive, but I think the majority would say we have what we need and we just have to develop it further, especially the case law.

[Translation]

Mrs. Debien: What are the main problems facing women refugees, other than the fee of $975 they have to pay and that constitutes another barrier to accessibility? They must have other problems. I'd like you to comment on that.

[English]

Ms Marshall: Just to clarify, do you mean problems once they're actually here and outside the determination process?

[Translation]

Mrs. Debien: Notwithstanding the whole process, what are their problems in your opinion?

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[English]

Ms Marshall: One problem, which has been addressed in various other submissions as well, is the plight of women refugees or even the documentation of human rights abuses against women....

It's an initial problem that the convention was originally drafted with men in mind. That's a problem in terms of having the persecution, or what women suffer, validated or understood. I think the guidelines go a long way towards rectifying that lack.

There are also settlement difficulties.

Ms Nakatsu: Our clients do have settlement difficulties with things such as finding work, but one of the things Christen mentioned that I think we all experience is it's often very difficult to find the country's documentation to support our clients' claims. It's not that it doesn't exist, but it takes a lot more work to find that evidence. I don't know if it's because the plight of women in other countries just hasn't been as well documented as the general situation in the country.

Some of my colleagues have had difficulties, for example, documenting the lack of shelters for women who have been battered, if we're talking about domestic violence in a country like Grenada. That would be a difficulty for the hearing.

But I would agree with Christen that there are some general problems in resettlement, especially if a women is separated from her children. They have difficulties adjusting.

Mr. Mayfield: I'm not a lawyer, but a couple of notable instances come to mind of lawyers who have not played by the rules and have had difficulty with their local bar associations.

Mr. Knutson (Elgin - Norfolk): It happens.

A voice: It happens to ministers too.

Mr. Mayfield: You were talking about using the guidelines as a basis for both collecting information and informing the IRB of a potential refugee situation. Is not the IRB itself supposed to be aware of the status of women overseas?

Ms Marshall: That's a difficult question. It would be impossible for the IRB to take what you might call judicial notice of the human rights situations in the very many countries they hear claims from.

In fact, many of us in the Refugee Lawyers Association represent people from many countries, but we'll have hearings from similar countries many times in a year. Each time, given the particular fact situation of that claimant, we go out and research the issues afresh. A package we might use for one type of individual from a country could be very different from that of another, depending on the facts we want to establish.

So I think it's giving too wide a scope to say they're supposed to be aware of these issues, because each of them are quite fact-specific and have to be documented. They couldn't possibly be aware of everything, basically.

Mr. Mayfield: I'm thinking of some of the difficulties IRB members have in a hearing. It's supposed to be non-confrontational.

Some of the difficulties IRB members have in hearing a case, with aggressive lawyers playing their part to the full, have been pointed out to the committee.

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It was noted in the last presentation that quotas play a part in the gender-based guidelines. Do these quotas play a role in your work with the IRB?

Ms Nakatsu: I'm not quite sure what your question is addressing. Did you mean quotas playing a role in our work, in the numbers that are allowed under the guidelines, or...?

Mr. Mayfield: The quotas play a part in....

The Vice-Chairman (Mr. Dromisky): Mr. Mayfield, what quotas are you referring to?

Mr. Mayfield: The quotas of those who are brought to the IRB.

Ms Marshall: We can't really have quotas. As I think Connie mentioned earlier, we make an election whether to proceed to the board with claimants as they come to us. There are some to whom we have to say, you don't fit within the convention. But we don't employ quotas ourselves. We just represent people. I'm not sure that your question is really pertinent to the work we do.

Mr. Mayfield: The last person here was an IRB member. I'm just trying to bring together what she was saying with what your experience is in this regard. I'm wondering how the quotas she mentioned play a role from your aspect, from your part as an advocate.

The Vice-Chairman (Mr. Dromisky): Mr. Mayfield, I think we have to clarify this. In Canada, we have no quotas. The claims are being made and we process them. However, there may be a quota that you might be dealing with. I'm not sure if you're referring to the quotas that are established by the number of claimants we have offshore. Are those the ones you're referring to, the selected refugees?

Mr. Mayfield: The quotas that were referred to by the IRB member.

Ms Nakatsu: The only quotas I know of - and it's because I've done some private group sponsorships - are overseas. I think the different visa offices have numbers of people who can come into Canada, either as government or private group sponsors. I'm not sure about the private group sponsors, whether a quota exists, but I am aware that for government-sponsored refugees there are quotas existing. I've never been aware of one when I've appeared before the board in terms of in land claims.

The Vice-Chairman (Mr. Dromisky): Thank you very much. I think you handled it well.

Mr. Knutson.

Mr. Knutson: I know, Mr. Chairman, you want us to stay on point with the guidelines, but I would like your permission to ask a question about the $975.

If we were to make the loan automatic, if you're a refugee you're automatically entitled to the loan provision without putting you through a credit test, and given that immigrants generally outperform Canadians after a period of time in terms of their economic contribution, do you think that would represent an undue hardship?

Ms Nakatsu: I think overall for my clients, no, because most of them shortly after being found to be a convention refugee are working. They may have to be given a longer period of time to pay back the loan, but they are working and they are more than willing to contribute. So I think if they could get the loan, if it was readily available to them, they would pay it back. Lawyers always have stories of clients for whom they have done work for free and the clients come and pay their $25 a month for the fees for the next five years or whatever. So there is a willingness to pay back the system.

Mr. Knutson: You'd concur?

.0950

Ms Marshall: Again, I think our membership is a little split on the issue. Many of them maintain that the $975 shouldn't be imposed at all, because these are people who we've recognized as needing our protection. But in the alternative, yes, if the loan weren't so difficult to get. And perhaps again, a loan that was guaranteed at the end, at the actual time of landing, would probably mean that the full loan may not even be necessary, because they've had that year.

Mr. Knutson: Has the loan been difficult to get?

Ms Marshall: It most definitely has. You have to show your ability to repay. Many people are accepted before they've had an opportunity to find work, because it's only been a few months, particularly in the situation of women who may have small dependants at home. They don't currently have a job, so they'll be turned down for the loan and then be in that limbo that's really quite difficult. As we mentioned, without landing, they can't pursue further education to upgrade their skills either. So it's quite cyclical.

Mr. Knutson: Would you know offhand - take a ballpark guess - as to what percentage of refugee claimants would have been turned down? Is it 50:50, or more than half?

Ms Nakatsu: I've just read in the newspapers that it was 50:50, but I have no definite statistics.

Mr. Peric: Mr. Knutson just asked a question. My question would probably be the same. How many applicants were turned down because of that landing fee?

Ms Marshall: Do you mean turned down for the loan, or turn down for landing?

Mr. Peric: No, turned down because of that landing fee. How many applicants were affected by that landing fee?

Ms Marshall: Since we're really only looking at -

The Vice-Chairman (Mr. Dromisky): I'd add that it's a very difficult question to answer simply because that's not their field. Here we're dealing with the guidelines. They're not in an administrative capacity working with the ministry -

Mr. Peric: Then, Mr. Chair, I'll re-address the question.

On page 10, in your statement you mention that there is difficulty with the process. You mention $975 right of landing fee, and only $500 processing fee. Now, there is a problem, according to you, in pay-off within 16 days. My question is, how many applicants were turned down because of this problem?

Ms Marshall: I don't have that type of statistic, but I can say that in my own practice and that of my colleague, who is representing many people from Burundi and Rwanda, the majority are having difficulty. But I can't be more specific than that, unfortunately.

Mr. Peric: Do you mean more now than before the federal budget?

Ms Marshall: Definitely. I mean, it's an extra $1,000 just about.

Ms Nakatsu: I think each of my colleagues, when I speak to them, have a hardship story, and that's what we've been accumulating. We have the stories of people who.... For example, one woman from Rwanda had collected the money. She'd been found to be a convention refugee in December and over a period of time had eventually, with the help of a church, gotten $500 together February 27 to make the application for landing. When it was received on March 1, it was too late, and now she's in the process of trying to get the $975 together. So that's January, February, two months to get the $500 together. That was a struggle, and it was done only with the help of the church. So each of us has that kind of story of clients -

The Vice-Chairman (Mr. Dromisky): Two minutes each.

Madam Debien, do you have another question?

Mr. Mayfield, would you like another question?

Mr. Mayfield: Just a quick follow-up.

What happens to these refugee applicants? You mentioned that the application was too late. What happens to them then?

.0955

Ms Nakatsu: In one case, my colleague had the case go back to an inquiry because the person hadn't applied for landing. The inquiry hasn't been held. So if you haven't applied for landing, they may be called back and they may have to -

Mr. Mayfield: So it's not that they're ever sent back to where they came from then.

Ms Nakatsu: We're not quite sure yet. We haven't gotten to the end.

Mr. Mayfield: I see.

I have a quick question on priorities. This really seems to be the nub of the thing for me. The debate on the gender-based guidelines tends to flow into the question of who should get first priority in Canada's refugee queue. We keep hearing about these 19 million refugees in the world. I find that staggering. I find it a terrible commentary on the situation of humanity, and what do we accept? We accept 25,000 refugees a year, which really means that the focus of prioritizing is right on.

I just want to simply ask you, who, in your opinion, should have the first priority on this list. In your experience, who should have the first priority?

Ms Marshall: I'm not sure which list you're referring to. But I agree with you...there are actually more than 19 million. There are millions and millions of refugees worldwide -

Mr. Mayfield: Whether it's 19 million or 20 million, it's a lot.

Ms Marshall: - the majority of whom are women.

If what I take you to say is that the guidelines in some way prioritize and bump some women to the front of the line to the exclusion of those overseas -

Mr. Mayfield: No, that's not really.... It's a more honest question that I'm asking.

With the resources that we have dedicated to this - what is it, 25,000 - who should really be in that 25,000, who should have first priority of all the ones? How do we determine who is most in need and, perhaps more importantly, who receives the benefit of the resources we're offering? Who should?

Ms Marshall: The Immigration and Refugee Board will determine each of those 25,000 claims of the people who are here in Canada. They will weigh and assess each claim. Unless I'm missing the point, I don't think they prioritize. They listen to each claim on its merit.

The Vice-Chairman (Mr. Dromisky): Thank you very much.

Mr. Knutson: I don't want to be accused of putting words in his mouth, but I think his question is: Some fellow comes up from South America, makes his way overland, goes underground, comes to Canada, puts a claim in and gets accepted because it's easier to get accepted if you're here than, say, a woman or another person who might be more deserving, might be under more persecution, who goes to Mexico City and makes an application at our consulate. We've designed that system. We've said if you make it here, likely you're in, but if you apply overseas you don't have as good a chance.

I think the point of his question is, should we re-evaluate or change the whole system so that we have priorities? What that would likely mean is that we're doing more selection overseas rather than this kind of self-selected group who have the resources to get a plane ticket, or have friends who help them go underground, or whatever. He's asking you to comment on the whole -

Mr. Mayfield: Have the resources to hire a lawyer.

Mr. Knutson: Whatever.

Ms Nakatsu: I know it's something that members in our association have discussed and, again, we're divided on the answer because there are some who believe that the neediest people are left behind. They don't have the resources to even buy a plane ticket. I think that probably is the situation of women. In many cultures, women would not only want to bring their children, but often are caring for a more extended family that includes parents and in-laws. Some of them feel it's their responsibility to bring everybody. So they're unable to bring everybody and they don't come, partly because of the cost and they don't have the economic wherewithal to come.

As I said, there is that belief that those we see are the most privileged of the refugees, if we can put it that way.

Mr. Knutson: So what would you do, if you were going to try to right that wrong?

Ms Nakatsu: I wish I were King Solomon. I don't think we've come up with the perfect answer to that question. We do debate it. It's something that we discuss because we can't look at the work we do without looking at the global picture.

.1000

All I can say is that we do discuss it and debate it, but we haven't come up with an answer either.

The Vice-Chairman (Mr. Dromisky): Thank you very much for appearing before this committee this morning. We truly appreciate your input in helping us to grow and have a better understanding of the entire process, especially the aspects that pertain to the guidelines.

Your brief is excellent. Thank you very much.

A witness: Thank you.

The Vice-Chairman (Mr. Dromisky): We will now have the members from the Quebec lawyers association for refugees and immigration. We're fortunate this morning to have with us Pascale Vigneau and Marie-Louise Côté.

Thank you very much for coming before us this morning. Do you have a presentation that you would like to make first?

Ms Marie-Louise Côté (Lawyer, L'Association québécoise des avocats et avocates en droit de l'Immigration): Yes, we have prepared something. It is in French. So we'll be speaking in French and welcoming questions in either official language.

The Vice-Chairman (Mr. Dromisky): Thank you. Go right ahead.

Ms Côté: We did send in a written brief yesterday, so we hope it was received.

The Vice-Chairman (Mr. Dromisky): We did receive it, yes.

[Translation]

Ms Côté: Ms Vigneau and I are here this morning on behalf of the Quebec Lawyers Association for Refugees and Immigration. Our association includes 100 or so members whose practice has to do with immigration, citizenship and refugees. We're very pleased to take part in this consideration of a topic which is particularly dear to us, which is to say women refugees making gender based claims.

We work daily and concretely with the claimants. We make frequent representations before the Convention Refugee Determination Division, before immigration officers. Our comments this morning are a result of this practical experience.

Firstly, concerning the guidelines issued by the chairwoman, March 9th, 1993, let's start by saying that they were first greeted by much enthusiasm because they met a crying need. Up until then, very little was said about women claimants in Canada. The case law compiled had mainly to do with male experience. There was, therefore, a vacuum that had to be dealt with urgently.

On the one hand, you could say that the guidelines made the participants more aware of the whole problem and allowed for the definition of ``refugee'' to fit, conceptually, women's reality.

On the positive side, the guidelines hightened the members' awareness by giving them analytic framework which takes into account realities such as systematic and institutionalized discrimination, and the repressions set out in policies, laws and religious rituals.

.1005

The guidelines also mean that particular ways of persecuting women are recognized. Obviously, this means imposed marriage, domestic violence, and this is quite innovative in the refugee area.

But there's also in the text of the guidelines that gender can be included under the ground ``belonging to a particular social group''. Moreover, this interpretation of the guidelines in March 1993 was ratified by the Supreme Court under the Ward decision.

The guidelines also deal with the procedure to be followed during hearings and call on members to be sensitive to cultural differences and to show understanding, particularly when women are relating experiences of sexual violence.

Of course, there have been significant changes in the guidelines and they should be emphasized. On the other hand, this morning, we also want to criticize some of the things that weren't accomplished by the guidelines and remain to be done.

Firstly, concerning the content of the guidelines, there were concepts that weren't brought up at all. Take the notion of internal refuge within a country. If a woman manages to show that, in a particular part of her country, she's afraid of persecution, she must nonetheless show that she would be in danger in all the other parts of her country. We know that women are much less mobile than men for all sorts of reasons, be they financial, legal, etc. The concept of interior refuge must therefore be adapted to women's reality, and the guidelines do not mention this.

Of course, the guidelines are applied by the members, and the results of these guidelines will depend on their sensitivity. We therefore emphasize the importance of appointing members who, through their experience and attitudes, have shown an interest in, and an awareness of, women's problems.

We could also add that it's important to amend the Immigration Act to add a sixth grounds, which would be gender. The text would therefore have to be changed. If Canada took this step, it might lead other countries to do the same. Let's not forget that the definition of ``refugee'', under the convention, is an old one. It has not been modified since its adoption and it's time to adapt it to a changed reality.

For those women who have to recount experiences of sexual violence, it can be particularly difficult to testify. It might even threathen their ability to testify. In the cases where sexual violence is an issue, particularly when a psychological report has been submitted, we'd ask that the case files benefit from an accelerated procedure which would be held in Montreal, in front of a hearing officer who would then make recommendations to a member. In some cases, this would avoid having to deal with a hearing. In Montreal, we have an accelerated process, but very few cases of women claiming sexual violence are referred to it.

We recommend that the automatic joining of proceedings in the files concerning claimants from the same family be abolished. It should be left up to the interested parties' discretion because it often happens that, particularly in certain cultures, women are very reluctant to speak when their spouse is in the room, particularly when it's a matter of rape. Shame and stigma are attached to it and often, women don't want to speak of it in front of their spouse.

The notion of the state's protection is vital, particularly in matters, for example, such as domestic violence. The claimant must manage to prove that the state is unable to protect her. The Ward decision of the Supreme Court states that this burden of proof is very heavy. There must be clear and convincing proof of the inability of the state to protect a woman. The burden is therefore significant and, moreover, there is a presumption that the state is able to protect its citizens. Our burden of proof is heavy and the problem is that we don't have documentation dealing with the situation of women in many countries, which means that even when a claimant testifies in a credible way, the claim is often lost because we don't have documents to back up her credibility.

.1010

The Documentation Center's role is crucial. We suggest allocating more financial resources to it so that it can gather data and information that it doesn't have presently.

We also recommend that the Refugee Board support in a tangible and financial way organizations such as the Rapporteur for violence against women, in other words that there be funds made available to these organizations so that they may gather information more easily.

The Immigration Act reform, which will come into force shortly, will affect - amongst other things - the procedure to be followed. We'd like to highlight the change that would lead to the notes taken by an immigration officer at the point of entry being automatically sent to the member. These notes are taken in very particular circumstances which mean that, often, their content isn't correct and gives a poor representation of the claimant's situation. They are notes taken in a context where claimants, in general, come in nervous, exhausted, tired, very worried. They are fleeing persecution, when they are refugees in good faith. Their first contact with an immigration officer is very intimidating, particularly for women who may have become distrustful of people representing authority in their country. We are completely against the practice of automatically referring notes taken at the point of entry.

Moreover, questions asked by the immigration officer concerning the reasons for a person claiming refugee status seem to us to be outside their terms of reference. The immigration officer's mandate is not to ask questions concerning the reasons why a person is afraid of persecution. The immigration officer only has jurisdiction over admissibility. We can't understand why such questions are asked at the point of entry.

The immigration officer's behavior should come under the guidelines, because we are often told of abuses committed at the point of entry, when there is no representative with the claimant. We are very concerned by the practice and the legislation which mean that a person must, upon arrival at the point of entry, claim refugee status. Otherwise, she will be issued an enforceable removal order and, because of this, will not be able to claim later. She would then be inadmissible.

We don't understand why a person arriving at a point of entry, who is worried, etc., must state her intentions at that very moment and make a final decision, as to whether or not she will claim refugee status. These people should at least have access to a lawyer and be able to consult with the lawyer at the airport in order to make this decision.

The selection of refugees abroad is not our area of expertise. We have made a few quick comments on that. We highlight the importance, for the program for selection of refugees abroad, of compensating for the difficulties that women have in coming to Canada. Our whole system in Canada favors people who manage in some way to get around the need for visas and financial difficulties in coming to Canada.

Women do not often succeed in coming and that explains the fact that they only make up 30% of claimants in Canada. To compensate, our position is to recommend a minimal quota of 50% for selection abroad.

A last point, which also seems very important to us, has to do with the two judicial reviews dealing with, on the one hand, assessing the risks in returning and, on the other hand, humanitarian grounds. You just have to look at the results of these two types of judicial reviews to realize that they are practically illusory. The number of people accepted is minimal and the importance of these two judicial reviews must be emphasized because the system for the determination of refugee status is inadequate. There are many people who, for many different reasons, will not be able to qualify as refugees and will have to fall back on humanitarian grounds or the risks tied to returning.

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Much as the IRB has progressed somewhat, the department has not at all. Several consultations have led to recommendations and you can't say that implementing recommendations that have already been made would be a cumbersome weight. We could just look at all the recommendations that have already been made on this subject.

We therefore support an overall reform of the review processes for humanitarian grounds and risk upon return grounds. We are against the required fees of $975, which seem to us exhorbitant.

To conclude, it would seem to us that the progress at the Convention Refugee Determination Division is remarkable. On the other hand, concerning the Department of Citizenship and Immigration, there has been no progress. Things have practically moved backwards. Thank you.

[English]

The Vice-Chairman (Mr. Dromisky): Thank you.

Do you wish to add anything?

Ms Pascale Vigneau (Lawyer, Association québécoise des avocats et avocates en droit de l'Immigration): Non.

The Vice-Chairman (Mr. Dromisky): All right.

Madam Debien.

[Translation]

Mrs. Debien: Good morning, Ms Vigneau and Ms Côté, and welcome to our committee. I'd like to thank you very much for coming before us and I greatly appreciate your brief. On the one hand, you've given us a theoretical framework for the problem we must deal with and that we've been studying these past few months. And, on the other hand, you've made your brief very tangible by using examples. You've supported each of your declarations with very concrete examples and with a series of recommendations. Personally, I appreciate this very much. It's very concrete and has to do with specific things.

In your brief, you touched on practically all the problems that women refugees must deal with. Moreover, last week, Mrs. Clancy gave us a brillant presentation summing up the many access problems of women refugees, which you also mention in your brief.

You spoke of the $975 fee. As these fees are quite recent, have you noticed that they've become a major obstacle since their inception?

My second question has to do with interior asylum. You ask that a person's gender be considered. If I've understood correctly, you've asked that a person's gender be considered in order to establish the possibility of finding refuge in another part of the same country. Is that it?

Ms Vigneau: That's correct.

Mrs. Debien: Do you think that this should be part of the guidelines?

Thirdly, have you noticed that, since the inception of these guidelines, there has been an improvement at the IRB concerning the perception of women refugees' problems and the sensitivity of members and of visa officers abroad?

Ms Vigneau: The $975 fees greatly limit the access of poorer people - they are often women, particularly when they have children - to permanent residency, which then gives greater access to loan and bursary programs and allows them to become part of Canadian society. Therefore, asking them for a lot of money to make a permanent residency request will limit their access.

Moreover, there's presently a more glaring problem. The loan system doesn't work because the criteria are still too high. The department's application of criteria means that the person has the same burden of proof as with a bank. She must be solvent and prove that she will be able to repay the loans.

Women on social assistance will not be able to prove that they are solvent. A solution will perhaps be found to this problem, and it's essential. Otherwise, the system will become completely rigid, and there won't be any permanent residency requests.

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Mrs. Debien: On that topic, you mention, in your brief, that women immigrants or refugees, for the most part, were poor and illiterate women, who had major mobility problems and who were often subject to spousal or familial constraints. They're often mothers of many children. You said that for them, the possibility of getting refugee status is pure fiction and would be an incredible achievement. If you add the financial barrier to that, it becomes almost impossible. Let's dream on!

Ms Vigneau: We mentioned that mostly for women and children refugees throughout the world. For women with children, it's extremely difficult to get a fake passport to come to Canada. We don't see why the procedure should be made complicated once they've arrived.

You brought up the issue of flight or internal asylum. We recommend that that issue be specifically dealt with in the guidelines because, very often, women have to deal with specific problems when they want to seek refuge within the country. They are less mobile because of their family situation, and the country's cultural context is not in their favor.

It is much more difficult for a woman to live outside of the family, in another part of the country where she doesn't have any family. It's quite often almost impossible, and that situation should be directly noted in the guidelines.

[English]

The Vice-Chairman (Mr. Dromisky): Just one moment please. You can respond to the latter question in the next round.

We'll now jump to Mr. Mayfield.

Mr. Mayfield: Thank you very much. I just have a point of clarification. I want to be sure that I've heard correctly.

Did you say in your presentation that abuses occur at the point of entry? Is that a statement you made?

Ms Côté: I used the word ``abuse'' in the sense that, yes, we are given examples.

For instance, a woman arrived with three young kids. We're talking about the point of entry, the Blackpool point of entry, which is inland from the U.S.A. to Canada.

She got to the point of entry and was made to wait. I went to see this particular woman at the point of entry. She arrived at 4 p.m. I wanted to know when she would be examined. They said they didn't know, so there was no point to my staying for any number of hours.

She was made to wait until midnight. Then she was sent back to the U.S.A. She was told to come back the next day at 4 p.m.

Now, you have to visualize this. She has three youngsters. She's pushing them in a baby carriage. She's told to go back, she comes back the next day, and she is insulted.

The anger in the immigration office, as she described it to me, was totally uncalled for. What is it that makes some of the immigration officers so réticent or negative towards these people?

We have examples that are given to us. In that sense, yes, I'm talking about abuse,

[Translation]

behavioural abuse.

[English]

Mr. Mayfield: I did want clarification on that. I haven't experienced it, but I've had constituents who have come to my office and complained about the same thing in Canadian offices overseas.

I believe there are some differences in the Quebec situation with regard to immigrants, compared with the situation in the rest of the country. Are there differences in the refugee process in Quebec? Are they exactly the same through the...?

[Translation]

Ms Vigneau: The determination of refugee status as a process is exactly the same because it is administered by the IRB and the department, which are federal organizations.

As to the payment of allowances, courses or social assistance, the system is similar, but administered by Quebec.

[English]

Ms Côté: We do, however, hear some of our clients saying they have transferred their cases to Montreal, because apparently Montreal is either faster or more lenient. Whether that is true or not I don't know.

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Mr. Mayfield: No, I -

Ms Côté: It's an understanding that's going around.

Mr. Mayfield: I was interested in some of things you said about definitions of the word ``refugee''. I think you're advocating that we go beyond the present guidelines in that regard to change the word refugee so that it is gender-specific. Is that what you're advocating?

Ms Côté: That is correct.

Mr. Mayfield: I was just thinking that persecution on the basis of sex is already included in the Ward decision. Is that not correct too?

Ms Côté: That is correct.

Mr. Mayfield: I was wondering how you would change the definition.

Ms Côté: I would do it by very simply adding an extra reason: motive of claiming gender, who by reason of race, religion, nationality, political opinion, membership in a particular gender. Somewhere there, between the five existing ones, I would add the term ``gender''.

Mr. Mayfield: Would you agree that even after the guidelines have been made available, the current refugee system works against women by placing a stronger emphasis on inland claims of refugees?

Ms Côte: Definitely.

Mr. Mayfield: Would you say that women would be better served by emphasizing overseas selection?

Ms Côté: Absolutely.

Mr. Mayfield: Well, we don't agree on everything, but we do have some strong points of agreement and I thank you very much.

The Vice-Chairman (Mr. Dromisky): Thank you very much, Mr. Mayfield.

[Translation]

Ms Vigneau: May I add something?

[English]

The Vice-Chairman (Mr. Dromisky): Oh, for their answer?

Ms Vigneau: Yes. Regarding this point I would say that yes, women would definitely be better served if the quotas of women receiving refugee status outside were higher. But realistically it's very difficult to stop people coming to Canada. Then we will have to raise the level of refugees accepted in Canada.

We cannot determine that because we accept more refugees outside, the quotas inside will be lower. It's not possible. That's not a decision that can be made correctly.

Ms Côté: One is not exclusive of the other. It's not exclusive. It's not, raise the number of refugee claimants abroad and lower the inland ones, not at all.

It should be, keep the same system, make it work in Canada, but to compensate for the difficulties that women face to get here, raise the quotas outside the country.

So yes, we'll be getting more refugees.

Mr. Assadourian: When we talk about the... [Inaudible - Editor] ...to be accepted as refugees most of them are the ones to whom the government does not give protection. For example, if you are a member of a political party in X, Y, Z country and you are being persecuted, it's done by the government.

In the case of sex, I assume it's done by individuals most of the time. Right?

Ms Vigneau: No, it could be -

Mr. Assadourian: A government rapes a person? Is that what -

Ms Vigneau: Sometimes it's done by individuals and sometimes -

Mr. Assadourian: A government sponsors -

Ms Côté: Custodial rape in India, for example, is rampant. Police officers... absolutely. There can be different scenarios -

Mr. Assadourian: Let's stick to India in the case of the example you give. A police officer rapes a woman and a woman has a venue to go to and complain to the government, saying, this police officer raped me? Then she gets punished? Is that what you're telling me?

Ms Côté: In India specifically when you are raped by a police officer, for example. and you want to complain, you will not get protection from higher authorities. There is no one to turn to. In fact, the way the courts apply interpretation of rape, when it comes down to custodial rape by police officers, it's as if it simply does not exist.

So in fact, concretely speaking, there's nowhere to turn to. In that case, a state agent would be responsible for the persecution.

It could also be a spouse. That would be a completely different scenario, but in both cases you always have to show that the state at large is not willing to help you or is incapable of protecting you.

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The burden is always there. It's sometimes more extensive. The further the agent is from the state, the more the burden will increase to show that the state is not there to protect you.

Mr. Assadourian: What if it can be proven that the state will take care of that individual who was raped?

Ms Côté: Then you will not qualify as a refugee.

Mr. Assadourian: All right.

The Vice-Chairman (Mr. Dromisky): Thank you very much. Mrs. Terrana.

[Translation]

Mrs. Terrana (Vancouver East): Good morning. You have said, as others have, that even though the guidelines had been changed and that we had a better system, more women have not been accepted. Why do you think that's so? Is it for economic reasons?

Ms Vigneau: First of all, not many women can come to Canada. Women are not more mobile just because Canada has guidelines that may favour them.

Secondly, we can see that the number of women accepted by the Immigration and Refugee Board has not increased appreciably.

People think that the guidelines have made the Board members more sensitive and have made the process fairer, faster and less traumatic. But there's no significant difference in terms of the results.

Mrs. Terrana: You say that women are less mobile, and I understand that. But we've also been told that it was very difficult overseas for these women to get a permit to come to Canada or even to be interviewed because the officials travel from their offices. Do you have any recommendations to make on this particular matter? I believe that if we could change that overseas, we could improve the system. I agree with you that the system overseas should be strengthened.

Ms Côté: The number of officers should be increased. Staff levels at visa offices and embassies have been cut. In one entire region, a person has to travel to another country just to see a Canadian representative. So that gets us into the whole area of foreign affairs. The number of Canadian officials overseas who could deal with these applications should be increased. Otherwise, there's no point.

Mrs. Terrana: You think so?

Ms Vigneau: If we increase the quotas, if we say that 50% of the women applicants must be accepted, the officers will have to...

Mrs. Terrana: You think that if these officers were to travel to the refugee camps to see these people... Do the women know that they have rights in foreign countries?

Ms Vigneau: If they travelled to a camp where 80% of the people were women and children, like the camps in Ethiopia, they could get a briefing, but the processing would have to be done pretty quickly, because often the people are in dire straits. The camps don't always remain open for years.

Mrs. Terrana: Do the women in these camps know that they have rights? Are they educated enough to know that?

Ms Vigneau: They have very little information.

Mrs. Terrana: So there's no information.

Ms Côté: Very little. People just wait around and stagnate in the camps, no more, no less. Canada must do a great more work overseas, and must work in different ways. It must be done, and there's no time to waste.

Mrs. Terrana: Thank you.

[English]

The Vice-Chairman (Mr. Dromisky): Thank you very much. I don't know what the bells are for.

Ms Cohen: It's a vote.

The Vice-Chairman (Mr. Dromisky): Before the members leave, I'd like to make an announcement. We'll continue with two minutes for each in our next round. You'll be receiving documentation from our researcher here for you to study and peruse for the meeting on Thursday.

The meeting on Thursday is not going to be held here; it's going to be held in the La Promenade Building in room 705. You'll be notified about that, and it starts at 9 a.m. and not at 8.30 a.m. You will also receive information regarding the estimates. We have to deal with the estimates or begin to deal with them that day.

Now we'll continue with this process. Madame Debien, two minutes.

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[Translation]

Mrs. Debien: You did not answer my third question. So, let's deal only with that one.

In your brief, you mentioned a special Rapporteur on violence. Please forgive me for being so ignorant, but I would like you to describe the role of this special Rapporteur. Whom is he accountable to? What are his functions?

Ms Vigneau: The third point that I noted dealt with improving the guidelines. Yes, we believe that there has really been some improvement, but too often, it depends on the sensitivity of the commissioner who is going to hear the claims.

Some commissioners are very well aware of the mobility problems of women and of their particular circumstances. However, some commissioners are not as well informed. As far as we are concerned, the main problem is that, if a commissioner is not well informed, it becomes extremely difficult to get the proof necessary to document the case.

For instance, can Algerian women live on their own in an appartment? In the case of Saudi Arabia, the answer is obvious.

This leads us to the last issue you raised, that of the special Rapporteur. Special rapporteurs work as volunteers for the United Nations to report on human rights violation in specific countries or on specific grounds.

In the summer of 1994, a special rapporteur has been appointed to look at violence against women. It's a woman and her mandate is to report on violence against women, on discrimination and on protection in several countries around the world. She has to report on the state's attitude towards that kind of violence. Annual reports will be published on the subject.

Mrs. Debien: Is this recent?

Ms Vigneau: It's very recent.

[English]

Mr. Mayfield: Thank you very much. In your brief you mention that instances of sexual violence should be fast-tracked. Is that correct?

Ms Côté: That's correct.

Mr. Mayfield: In that, are you suggesting anything about the burden of proof of whether or not such violence occurred, or whether or not the country from which the refugee comes does not offer legal protection against such violence? Is there anything of that in your thoughts, or in your presentation, that I missed?

Ms Côté: There are a few points in what you're saying. First of all, there is the procedure itself. It's very intimidating to have to testify about something such as sexual violence. The procedure should be changed when at first glance in a file there is sexual violence, and referred to a fast track. Just deciding will be faster and easier. It doesn't relate to the burden of proof at all.

Looking at the burden of proof, however, is another issue. In a fast track procedure, or in a hearing, when a country has very little documentation, I think there is the need to compensate that. This can be done either by asking other refugees who have been found to be credible witnesses in Canada to come and testify about the situation in that country, or ask professors, anthropologists, sociologists, whatever, to come and give us information, so that the burden of proof is the same. We have to use imagination to find other means of meeting the burden of proof.

The third point I would like to make is that on the burden of proof itself, I have come to think that the presumption set by the Ward case to the effect that the state is presumed to have a capacity to protect its citizens, in a sense seemed to be faulty historically for women in a lot of countries, whereby the presumption should be the opposite.

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The Vice-Chairman (Mr. Dromisky): Is there anyone who wishes to pose a question on this side?

Thank you very much for appearing before the committee this morning. Your answers were clean and clear and very informative. We will appreciate the kind of input that you've given and it will make our task much easier. Thank you very much.

Ms Côté: You are welcome.

The Vice-Chairman (Mr. Dromisky): The meeting is adjourned.