David Cohen Defends Current Immigration Act on Parliament Hill

CanadaVisa.com - May 14, 2008

Since the proposed amendments to the Immigration and Refugee Protection Act (IRPA) were announced in Parliament in March, Attorney David Cohen has been actively working with government authorities to educate stakeholders about the finer points of IRPA.

On Monday, May 12th Attorney Cohen spoke before the Finance Committee and the Citizenship and Immigration Committee who are reviewing the proposed legislation before it goes back before the House of Commons for a third and final vote.

Watch the webcast to see what Attorney Cohen had to say and/or read the transcript below:


Standing Committee on Finance
Comité permanent des finances

Monday, May 12, 2008 - Le lundi 12 mai 2008
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 (1530)
The Chair (Mr. Rob Merrifield (Yellowhead, CPC)): We have the witnesses here and we have the committee members, so with that we'd like to call the meeting to order.
We'd ask that the cameras leave the room.
The Chair: Now we'll move on to Mr. David Cohen. He is an immigration lawyer.
Mr. Cohen, the floor is yours.
Mr. David Cohen (Immigration Lawyer, As an Individual): Mr. Chair, members of the committee, I asked to appear before you today because of a story that my late grandfather told me when I was young and impressionable. He spoke of how his younger sister fled Poland just ahead of the Nazi occupation and how she managed to secure a residency permit in England, valid for one year. My grandfather did everything he possibly could to convince immigration authorities in Ottawa to allow her to join him in Canada. His plea, however, fell on deaf ears. The door to Canada was shut. In the end, his sister was expelled from England back to Poland. She was never heard from again.
Truth be told, we haven't always had an immigration policy to be proud of. I have been practising immigration law for the better part of 30 years and I state candidly to you that it was only in 2002 with the introduction of the Immigration and Refugee Protection Act, or IRPA as it's known, that decisions based on discretion were removed from the immigration selection system, at least as it pertains to economic immigrants.
IRPA, in its present form, is a fine piece of legislation in which the selection of economic immigrants is based purely on objective criteria. It is based on the fundamental principle that everyone who chooses to submit an application to come and live in Canada is entitled to fair and equitable consideration.
The government is now proposing to amend IRPA. As part of the proposed changes the Minister of Immigration would have the authority to issue instructions to immigration officers related to the processing of applications. More specifically, these are instructions as to which type of applications to process quickly, which applications to hold for processing at a later date and, most importantly, which type of applications to return to sender without any consideration whatsoever.
These amendments, if passed, would change our immigration selection system from one that provides fair consideration to all applications in the order they are received to a system based upon discretionary selection and outright denial of consideration. This would expose the immigration system to the type of discretion that IRPA finally eliminated.
Please understand that the issuance of instructions by the minister will not magically change anything. In practice, the minister will have to delegate the exercise of discretion to immigration officers who will pick and choose the applications to be processed. This will unavoidably make Canada's selection system vulnerable to human bias, or worse.
Don't get me wrong, I have a great deal of respect for Canadian immigration officers who, as a group, are professional and fair-minded. That said, I would like to place into the record a copy of the message posted on the public forum located on my law firm's website as a practical example of the danger of discretionary selection. I'm going to quote from the beginning of the posting on our forum. It says,
Here you will read the ranting of a Canadian immigration.I've had it. I am so sick and tired of dealing with all the liars, cheats, frauds, etc. This line of work has tainted me to the pointed that I can't even look at most immigrants anymore without prejudging them as losers.
The person purporting to be an officer, and I'm satisfied that the person is an immigration officer, continues on to denigrate a particular ethnic group and then concludes by stating:
Well this felt good to rant a bit and I'll probably do more of this, but for now I have to go and deny a few people entry to my country.
This is the danger when discretion is allowed back into the immigration selection system. It's real and it will affect people.
The minister states that these amendments are required to streamline and modernize the immigration system. In particular, the government intends to use the amendments to clear out the current backlog consisting primarily of 600,000 skilled worker applications. In addition, the government contends that the amendments are necessary in order to bring applicants whose skill sets are in high demand in Canada to the front of the immigration line.
In fact, these proposed amendments are not required to achieve the desired goals. IRPA, in its present form, contains the mechanisms to control the flow of economic immigrants and to bring applicants desired by Canadian employers to the front of the immigration line. IRPA does it objectively and transparently.
Please allow me to explain. Simply put, the backlog exists because the number of new applications received every year is more than the number of visas issued during the year. We can all understand that. One of the IRPA regulations foresees this eventuality.
 (1540)
It empowers the minister to set the minimum number of points required to qualify as a skilled worker, keeping in mind the number of applications currently being processed versus the target number of immigrant visas to be issued. The minister may therefore simply raise the pass mark above the current level of 67 points, to curtail the number of fresh applications. People can count. They won't pay $550 in government processing fees only to be refused on the merits of their application, but the merits of their application will be considered.
The minister may also make use of restricted occupations as provided for in another IRPA regulation. After conducting the appropriate consultations with provincial governments and other relevant stakeholders, the minister may designate as restricted certain occupations for which there is little demand in the Canadian labour market. Potential applicants with experience in restricted occupations would receive no points for their work experience, which would prevent them from qualifying under the skilled worker category and they would therefore have no incentive to apply. This would ensure that Canada selects a higher number of immigrants who meet the immediate labour market needs.
Finally, the present legislation allows for arranged employment in Canada. A genuine job offer from a Canadian employer entitles an applicant to an immediate temporary work permit or accelerated processing of the permanent resident application. This allows the best and brightest to be brought to the head of the immigration queue.
To summarize, IRPA currently provides the mechanisms that permit the government to achieve all of its goals; namely, cutting through the existing backlog of skilled worker applications, and prioritizing the processing of applicants whose work experience is in high demand. IRPA is fair, and it could work.
I don't know if I have any time left, Mr. Chair. There were a couple of notes I have about the backlog in general and it would only take another minute.
The Chair: Okay, very, very quickly. I'll allow it.
Mr. David Cohen: Very quickly.
The subject of backlogs is complicated, and more complicated than meets the eye. The government gives us the impression that the backlog is a single line of 600,000 skilled worker applicants stretching as far as the eye can see. In fact the reality is very different. Some visa offices, like the one in New Delhi, have huge backlogs with a five-year wait just to be considered. Other visa offices, like the one in Buffalo, can process an application to conclusion in just under two years.
The situation is a direct result of the fact that the minister sets yearly targets to visa issuance at each visa office and assigns the resources necessary to achieve those targets. Therefore, the total number of pending applications is not the only aspect of the equation to consider. The allocation of resources is also an integral part of the problem. Perhaps the situation requires a redistribution of resources to the visa offices with the longest processing times instead of completely shutting the door.
Thank you.
 (1545)
The Chair: And thank you very much.
Hon. Garth Turner: Mr. Cohen, you said that this is a very regrettable departure from what you saw brought in with IRPA in 2002. Would you describe the attitude we're seeing in this legislation as anti-immigrant? Is that too harsh? What's the justification for the changes, based on your 30 years of experience? How would you categorize that if someone said, “Mr. Cohen, why are they doing this?”
Mr. David Cohen: This is the question that I ask myself, particularly, because in my opinion everything that the government desires to accomplish can be accomplished under the existing regulations. There really is no need to bring in this legislation to do what the government wants to do, so that leads me to believe there must be other motives. My own personal opinion on this is that they're political in nature.
Hon. Garth Turner: Can you elaborate, please.
Mr. David Cohen: Well, I don't think it will surprise anyone in this room if I were to say that historically newly arriving immigrants have been a constituency that the Liberals count on. At the end of the day, the Liberals are going to have to stand up and vote with the government, and I believe against the best interests of a constituency that they've been very close to for many years.
Hon. Garth Turner: I'm shocked, Mr. Cohen.
You're saying that government members are actually playing politics with this legislation?
Mr. David Cohen: Yes. I'm as shocked as you are.
M. Paul Crête: S'il me reste un peu de temps, monsieur Cohen, je voudrais vous dire que je souhaite que les lois sur l'immigration permettent de mettre fin à la situation que vous avez racontée au sujet de votre grand-père. On devrait toujours s'inspirer d'exemples comme celui-là, même si c'est un cas particulier, pour s'assurer que, dans l'avenir, on ne recrée pas une situation qu'on a vécue dans le passé. C'est comme si on avait progressé. Est-ce que cela veut dire qu'actuellement, on est en régression avec ce qu'on présente dans le projet de loi et que cela pourrait nous ramener à des situations assez intolérables?
Mr. David Cohen: Very quickly, I will just say that the more discretion that is allowed into the immigration system, the more likely there is to be examples of the ones that I gave in my introductory remarks. The more we can limit the discretion and put a structure in place that is wholly objective and transparent the less likely we are to see the kind of examples that I brought out.
The Chair: Thank you very much.
Mr. Del Mastro, seven minutes.
Mr. Dean Del Mastro (Peterborough, CPC): Thank you.
Mr. Cohen, in your opinion, somebody who participates in an Internet forum, are they looking for anonymity?
Mr. David Cohen: No, sir.
Mr. Dean Del Mastro: So why are you protecting the individual that you claim to be an immigration officer who's posted these abhorrent comments that you've made here, alleging that they are from an immigration officer? Why are you protecting the identity of that person, because I'll tell you, if they do work for Immigration Canada, I will demand that person is fired today because a person who makes comments like that has no place in my immigration system. Why won't you identify who that person is?
Mr. David Cohen: It's the policy of our immigration website that we do not give the identity of anybody who posts on a public forum, but I will tell you this, I am wholly satisfied that the person in fact is an immigration officer because not only did the individual place that posting but there were 41 other postings that were made and from those postings it's evident that the person is an immigration officer and more than that, I would ask you this question. If somebody is making a public posting like that and works in a facility that has more than 100 other employees, as this immigration officer states, wouldn't you think that this immigration officer's colleagues and supervisors might know how the immigration officer feels.
Mr. Dean Del Mastro: I would propose to you, sir, that if you know who this person is, that you identify who that person is so that person can be dealt with. Otherwise, I'm going to disregard the comments that you've made as being the conjecture of an individual that would like to cast a negative light on our immigration officers, people that you started your comments by saying that you had respect for. I have no respect for someone in our immigration system that harbours that kind of sentiment towards people from other nations, I'll tell you that straight up. And if there is an individual working in our immigration system that harbours that kind of ill will towards other communities, they should be dealt with accordingly. Because our immigration system has been and will continue to be governed by the Charter of Rights and Freedoms and it does not allow for that kind of discrimination or those types of statements to be made against anybody. We protect people in this country and we fight against sentiment like that. If there's a person in the employment of the Government of Canada that feels that way, they should be outed and dealt with accordingly, I'll tell you that right now.
Secondly, you said—
Mr. David Cohen: Can I just respond to that for a moment?
Mr. Dean Del Mastro: Please do.
Mr. David Cohen: It really isn't about this particular individual.
Mr. Dean Del Mastro: Yes, it is.
Mr. David Cohen: The difference between this individual and other individuals is this person is showing you what's in his or her heart. Most people won't do that. That's why you need an immigration selection system that removes as much discretion as possible and relies upon objective criteria.
 (1610)
Mr. Dean Del Mastro: Sir, we have a broken immigration system, with 920,000 people on the waiting list. It's broken. That's why changes are needed. But you would really have to convince me that there is something wrong with our officers when Canada is the multi-cultural model of the world. Toronto has representatives of some 150 nations or more living in the city of Toronto. You're almost indicating that you feel somehow that it's endemic within Immigration Canada, that people harbour these kind of sentiments about cultural communities, and therefore we're discriminating against cultural communities. I would argue that in Canada there is no evidence of that. If there is an individual that does harbour this kind of feeling within them, then they should be outed.
Mr. David Cohen: Listen, individuals have biases, you really can't deny that. If you have a system that is purely objective, it really makes very little difference whether or not the person has biases.
Mr. Dean Del Mastro: To everyone that's here on immigration, you feel that the people on this committee don't know enough about immigration to be looking at it, I'll tell you that we have a full-time staff in my office, in Peterborough, and I deal with immigration files regularly—regularly. There's probably no file that any person at this table deals with more adamantly than immigration. We deal with it all the time, and it's because the system is broken.
That said, I would argue that a system with 925,000 people on the waiting list, it's automatically discriminating against people. In your case, sir, it's discriminating against people who can't afford to hire an attorney to assist them with the immigration system. Isn't that right?
Mr. David Cohen: No, it's not right at all. It really has nothing to with the hiring—
Mr. Dean Del Mastro: Do you work for everyone or do you work for the people that can afford to pay you?
Mr. David Cohen: Sorry, can you repeat that, please?
Mr. Dean Del Mastro: Obviously, some people can afford to pay an attorney and some people cannot. That is a discriminatory system. We've got to fix it.
Mr. David Cohen: Right. Now, people don't have to pay to hire an attorney if they want to come to Canada. That really isn't what the issue is here at all. The issue is one of giving more discretion to immigration officers to carry out the instructions of the minister.
You talk about 925,000 people waiting in line. Then I suggest that the government uses the mechanisms in the current legislation to bring people here quicker and to, if they want, curtail the influx of new applications. It's there, it ought to be used.
Hon. Gurbax Malhi (Bramalea—Gore—Malton, Lib.): Thank you.
My question is to David Cohen. According to your opinion, this bill, Bill C-50 is going to affect the family class sponsorship. How will the new skilled immigrants, when they come to this country get credentials when at present there are so many professionals, engineers, doctors, driving taxis and delivering pizza? Some of them are (unclear)
Mr. David Cohen: Let me address the first part of your question, where you asked how this legislation will affect the family class or the sponsorship of applications. The truth is we don't know at this point in time. The minister will be able to, by category of immigration, send instructions to process applications, as I said, quickly, to hold some back for later, or not to consider some applications at all. This could apply to any class of immigration, economic class, as well as family class.
So we really don't know how it will, in the future, affect the sponsorship of spouses, the sponsorship of children, and the sponsorship of parents and grandparents. It's really impossible to tell at this point in time.
We do know that there will be the power for the minister to issue these kinds of instructions that will delay cases or speed up certain cases.
The Chair: Mr. Malhi, this is a little unusual to interject at this time, but Mr. Cohen has to leave. I'm just going to try this, in the spirit of non-partisanship. Mr. Wallace has asked for one quick question for Cohen before he has to leave. If you'll accept that, then I'll tack that time onto yours.
Hon. Gurbax Malhi: But I need the answer from Mr. Cohen or from somebody else.
The Chair: Do you have more for Mr. Cohen? Then go ahead, if you have. His time is very tight, he has to leave for the immigration committee. Go ahead then, Mr. Malhi.
Hon. Gurbax Malhi: There are no other questions.
Mr. David Cohen: I'll answer you with respect to the skilled workers, professionals, and skilled tradespeople who come here to Canada and find it difficult to find their job in Canada. It's true and I think we have to make a greater effort among the professional organizations, among the skilled trade unions, to put more pressure on them to allow for doctors, for example, when we know there are openings in Quebec and Ontario and yet they can't practice even though they've qualified outside of Canada and qualified inside of Canada, there's resistance there and that's where the pressure has to be put.
 (1625)
Hon. Gurbax Malhi: What is your opinion about the minister who is so sympathetic to the immigrants that she mentioned that she wanted to clear out the backlog? On the other side, when I personally asked the minister to issue a ministerial permit because somebody died in the family, she can only issue one ministerial permit or she can clear the 900,000 backlog. Why is she so sympathetic? What's your opinion of that?
Mr. David Cohen: Well, one way to clear out the backlog would be to send out instructions not to take in any skilled worker applications for a period of time, be it one year, two years or three years. At the end of that period of time there will be no more backlog. I don't know that's what the minister intends to do because the minister has not, at this point, given any indication as to what those instructions will be, but the minister will have the power to clear out the backlog.
The measures, however, I believe will be drastic if they are taken and the discretion given to officers, I think, in the long run will be something we ought to be concerned about.
The Chair: Thank you.
Mr. Wallace.
Mr. Mike Wallace (Burlington, CPC): Thank you, Mr. Chairman and thank you, Mr. Cohen, for sticking in. Just very quickly, you indicated that the legislation now allows the minister to set targets for different visa offices around the world and you give the example of Buffalo and part of the backlog in your view is because the number is smaller in some places and more people apply than what are actually allowed in. Right?
So what's the difference then if the minister has the ability to set...if they're allowed to set number targets, why should they not have the authority, whether it's a man or a woman as the minister to set occupational targets, that if skilled labour, whatever skill sets they are looking for are available, to me it's the same process, one's numbers, one's skills. If they have the authority to do one, why should they not have the authority to do both?
Mr. David Cohen: Right, and that's a very good question.
With respect to occupations, the minister now has the power to set certain occupations as being restricted, saying for the time being we don't need more accountants in Canada and any one who's an accountant won't apply.
Mr. Mike Wallace: That's on the negative side, but on the positive side if somebody comes through and I'll just an occupation as an example, a plumber, because we want plumbers. It's not restricting plumbers, it's attracting plumbers. If someone comes with a plumbing application, they move a little closer to the front of the line.
Mr. David Cohen: But we still do allow that. If an employer is willing to hire that plumber from abroad, that plumber comes in immediately on a work permit--
Mr. Mike Wallace: Yes, that's all right if you've made arrangements.
Mr. David Cohen: But let me why, you asked what's the difference.
Mr. Mike Wallace: What is the difference?
Mr. David Cohen: Here is the difference, when we have an application from the same qualifications being processed in Buffalo in under two years, but taking five years at the immigration office in India, at least we're saying to that individual who's waiting five years, look, it's not your fault that you have to wait five years, but at least we will assess your qualifications the same way as we assess the person who applied at the same time that you did in Buffalo, we will assess the qualifications in the same way.
Let me explain, if today I submit an application in Buffalo and somebody else submits an application in the Canadian visa office in New Delhi, the one in Buffalo will be heard first. But the person who has to wait longer in India, through no fault of his own, at least will be assessed according to the same standards as the person who is assessed in Buffalo.
Mr. Mike Wallace: Maybe the plumber from the U.S. will get the same sort of approach.
A plumber from the U.S. and a plumber from India would be able to move up the list under the same circumstances--
Mr. David Cohen: If they have a job. But say they don't have a job, a plumber from....I'm saying under the current system at least both these plumbers are being assessed according to the same objective criteria.
Mr. Mike Wallace: But the minister in this legislation, sir, is using a variety, a package of identifiers of skilled labour that's needed. It's not that (a) Company B has to say they need a plumber. The plumber has that opportunity to come here and find a job and in this case the woman who is our minister is using a package of criteria or indicators of the types of occupations that are required. So it doesn't require a company to say Mr. Smith from India--sorry, I shouldn't use “Smith”, I guess--we need you to come here because you have the specific skill we want. It allows anybody with a certain occupational skill that's generally needed in this country, based on those criteria or based on that analysis, from a variety of approaches.
Your argument doesn't hold water with me, sir.
 (1630)
The Chair:
You made your point, Mr. Wallace. I'll allow just a very quick answer and then we'll move on.
Mr. David Cohen: Unfortunately, it's not something that can be answered in one sentence, but I would like to try to say that if it could be done fairly and objectively you would have a good point. But in fact it's going to require the picking and choosing of applications somewhere in the queue and that's where it breaks down.
I'm sorry, I really do have to leave, Chair. Thank you.
The Chair: Thank you very much, and thank you to our panellists for coming forward and testifying.
Thank you for the questions. We'll now pause as we bring forward our second panel.