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Mr. Max Berger (Individual Presentation): Thank you.

I’m an immigration lawyer specializing in refugee matters and I’ve been appearing before the Refugee Board several times a week since its creation in 1989.

I am very much against the agreement, but if it is going to see the light of day, I’d like to use some of my experience to make sure that the regulations are as good as possible.

I have raised five points that I feel are particularly problematic with the proposed regulations, and I’d like to go through each of the five.

The first concern is that the principle that a claimant will receive fair refugee hearing in either Canada or the United States is compromised by widely varying acceptance rates for nationals of specific countries, depending on whether the claim is heard in Canada or the United States.

Perhaps you can imagine a claimant from country X who wants to come to Canada and who is making his way from the United States. Suppose, for example, the acceptance rate in the United States for a citizen of that country is 55% and the acceptance rate in Canada is 80%. My point is that if the differential is that large, 25 percentage points, perhaps more and perhaps less, that person should be allowed to come to Canada to make his refugee claim in this country.

Looking at that another way, if the acceptance rate for citizens of that particular country is less than 50% in the United States and higher than 50% in Canada, such a person should be allowed to come to Canada to make their refugee claim in Canada. I believe this would live up to the spirit of the agreement, which is to ensure a fair hearing in either of the two countries.

The second concern deals with proposed paragraph 159.6(b). That regulation says that if you, the claimant, are charged with an offence in a country, presumably your country of citizenship, and that offence carries a death penalty, then the exemption will apply.

Here is the problem. What does the word “charged” mean? In the western sense we all know that charged with an offence means you are given a piece of paper, an arrest warrant, there’s a court proceeding, but in third world countries, where most refugees come from, there is no such fine point of law. What can happen is the police will come in the middle of the night, pick you up, put you in jail, and you’re never heard from again.

So the question is this. In this regulation, does the word “charged” encompass this sort of eventuality, where there are no formal charges, it’s just the police allegations against you, and the consequences are that you’ll be put to death?

So my recommendation is that “charged” should be defined with greater specificity to include formal as well as informal allegations, which I just described to you.

The other concern is the way the regulation is drafted presently the immigration officer at the port of entry will have to conduct a mini refugee hearing at the border to decide whether the death penalty applies or doesn’t apply. And I put it to you that this is beyond the scope of the immigration officer at the border.

I would say, as a recommendation, that the immigration officer in a clear case can retain the power to apply the exemption, but if the immigration officer is not prepared to apply the exemption, then he should not be able to refuse it, but he should refer the matter to the immigration division, where an impartial adjudicator or actually a board member, as they are now known, will be able to make a determination on whether the exemption applies.

Concern number three is with respect to familial relationship. You know the regulations say that if a claimant has a close family member, the exemption will allow him access to Canada. And I’m sure you’ve heard this question from many of the panellists. Most refugees who come to the border either come with nothing or come with the most minimal documents, such as a birth certificate or identity card. If they have an uncle who is a citizen of Canada, which would entitle them to the exemption, very few refugees are going to come to the border with documentation to establish that the uncle is here in Canada. The result, which would be a finding of ineligibility, is a lifetime ban on ever being allowed to make a refugee claim with a hearing before the Refugee Board in Canada again.

That, in my view, is plain wrong. There are different degrees of ineligibility. You cannot compare ineligibility for being a war criminal, let’s say, to ineligibility because you aren’t able at the border to produce documentation to show that you have an uncle who’s a Canadian citizen.

The fair way and the easy way to solve that problem is simply to allow a subsequent redetermination of eligibility if you have been refused your exemption because you didn’t have the paperwork or documentation to show the familial relationship in Canada.

Concern four…. If you look at your regulation 159.5(c), there is an exemption available if you have a family member whose refugee claim has been referred to the Refugee Board. The oversight the drafters have not noticed is that there can be a lag period of four to six weeks or more between the time a family member makes his refugee claim–a typical inland refugee claim in a large urban centre such as CIC in Etobicoke as an example–and when it’s actually referred to the Refugee Board.

If our claimant comes to the border and wants to argue that his family member has a refugee claim that’s going to be heard by the Refugee Board but has not yet been referred because the family member hasn’t yet received his interview appointment at the office in Etobicoke that is to determine his eligibility, then the claimant at the border will be found ineligible and sent back to the United States. That’s also wrong.

The easy way to solve that problem is to simply allow that claimant into Canada and wait until the determination on eligibility and referral to the Refugee Board is made for the family member he’s relying on.

The last concern, Mr. Chair, is again with respect to regulation 159.5(c) and is the one that would allow a claimant access to the exemption if they have a family member who has a refugee claim referred to the Refugee Board in Canada. But if that family member is under age 18, the exemption doesn’t apply.

If you have a mother coming to the Canadian border and she has an 11-year-old son whose refugee claim has been referred to the Refugee Board with no decision yet, that mother will be found ineligible and sent back to the United States and will not see her child in Canada. That’s simply done and is totally incompatible with the spirit of family reunification in the Immigration Act.

That would be my submission.


Max Berger is a native of Winnipeg, Manitoba and was educated at the University of Manitoba and York University. Mr. Berger is a graduate of Osgoode Hall Law School in Toronto, Canada. He has represented immigration clients from all corners of the world and in every area of immigration law.

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