Обсуждение нового Закона и Правил продолжаются.
Не буду утомлять вас подробным изложением всего наговоренного в течение целого рабочего дня. Остановлюсь на том, что, по-моему, заслуживает интереса.
Наиболее важные вопросы, напрямую затрагивающие судьбы иммигрантов, обсуждались в конце (очевидно как не самые приоритетные)

Ретроактивность (введение в силу обратного действия закона)

Уоррен Ллойд: Новые правила должны действовать с того дня, когда они войдут в силу, то есть с 28 июня 2002 года.
Понятие обратной силы ("иммиграционный закон имеет обратную силу") неприемлемо! Это понятие делает отбор потенциальных иммигрантов, как по профессиональной, так и по бизнес категориям, непредсказуемым. Весь процесс становится, таким образом, не стабильным.

Что мы должны говорить людям? "Сегодня проходной балл такой-то. Возможно, ваши данные этому баллу соответствуют. Но, знаете ли, правительство может в любой момент поднять его в любой момент, когда ему заблагорассудится, и вот тогда вы точно не пройдете" Кому нужна такая лотерея?!.

Говорят, что идея ретроактивности возникла из-за необходимости расчистить завалы дел, образовавшиеся в посольствах. Откуда появились эти завалы? Они возникли при попустительстве Министерства иммиграции, которое ничего не делало для того, чтобы регулировать поток.

Само понятие ретроактивности анти-канадское и анти-либеральное по своей сути.

Робин Селигман:
Я категорически против ретроактивности. Я предлагаю рассматривать заявителей по обеим системам.* Если человек прошел по старой системе - хорошо, если по новой — прекрасно!
Думаю, что мы не успеем завершить всю работу до 28 июня и придется этот срок отодвигать.

* Логично, так, впрочем, всегда и было.

Мендель Грин: Говорят, что обратная сила необходима для того, чтобы расчистить завалы. Это заблуждение. Это не расчистка завалов, а создание новых.

Проходной балл

Уоррен Ллойд: Новая (предлагаемая) система никуда не годится. От нее следует вообще отказаться. Я бы оставил старую систему, введя в нее некоторые изменения. Использование проходного балла в качестве регулятора потока в корне неверно.
Проходной балл 80 - это же уму непостижимо!
Здесь много говорилось о потребностях рынка труда. Что касается квалифицированных слесарей, то я согласен - потребность в них есть. Но я ни разу не слышал, что рынок труда страдает от нехватки кандидатов и докторов наук.

Мендель Грин: Нужно полностью пересмотреть систему баллов и критериев. Я не понимаю политики Правительства. Чего они хотят? Допускать в Канаду только семейных?** Вряд ли. Пропускать только профессоров?

Председатель (прерывает): Не дай Бог!

И я никак не могу понять, почему квалифицированные рабочие не могут рассчитывать на иммиграционную программу!

** Я получаю письма от холостых заявителей :"Может быть нам стоит жениться/выйти замуж? Когда лучше это сделать да или после интервью?

Рабин Селигман: Я тут просчитал по баллам большинство присутствующих…
Председатель: Робин, ну и какой балл получил я?
….

Из других вопросов, заслуживающих внимания — оценка знания языка (предлагается не доверять иммиграционным офицерам, а ввести в действие авторитетные тесты — IELTS или TOEFL***), поднятие возрастной планки до 50ти лет (?), отказ от предлагаемой суммы переводимых средств (settlement funds)****

***Показательно, что в стенограмме названия тестов написаны с ошибками ("ILTS", "Tofol"), то есть о них слышали, но мало что знают.
**** В предлагаемых Правилах сумма устанавливается на уровне минимального дохода канадца (18 000 канадских$ на одного; 22 000 — на двоих; 28 000 на семью из трех т.д..).

Но самая значительная часть обсуждения, которая проходила очень живо и с большим интересом (чувствуется наболело!) была посвящена проблемам однополых партнеров.

Ведь по предлагаемым правилам разрешается иммиграция однополых партнеров как семейной единицы.
Как облегчить этот процесс? Как доказывать сожительство и нужно ли это доказывать, какой период сожительства можно считать приемлемым и т.д.

Не даром эти слушания уже вошли в историю под названием The Blues (у канадцев с чувством юмора все в порядке и это обнадеживает)

Из других тем:
Регулирование иммиграционных консультантов
(тема старая и наболевшая). Я попытаюсь суммировать предложения по этому вопросу и выведу их в отдельный топик.
Иностранные студенты, проходящие курс обучения в Канаде. Их права на иммиграцию.
Live-in caregivers. Могут ли они рассчитывать на постоянный статус?

Резюме.
Дебаты продолжаются. Что хорошо?
На этой стадии отношение большинства высказавшихся к ретроактивности и новой системе критериев и баллов резко отрицательное.
Что плохо?
Посольства почти не работают (в настоящее время выжидают, а когда получат новые Правила, будут еще долго их изучать и к ним приноравливаться).

В результате в феврале у нас всего 3 интервью. Что касается Посольства Канады в Москве, то оно, во-первых, долго готовилось к визиту Ж. Кретьена, потом "обеспечивало" его пребывание, в настоящее время готовится к отъезду, а потом… как минимум неделю будет приходить в себя.

А как же иначе? Так что Посольству не до нас (и не до вас).

Для того чтобы донести до вас истинный дух прений по новому Закону и Правилам привожу отрывки стенограммы (возможно, это будет полезно для тех, кто изучает английский).

Happy reading

А.В. Гавриловец
Визави

CANADA
Standing Committee on Citizenship and Immigration
Comite permanent de la citoyennete et de l'immigration
COMMITTEE EVIDENCE NUMBER 45, TEMOIGNAGES DU COMITE NUMERO 45

ї (0930)
[English]
The Chair (Mr.Joe Fontana (London North Centre, Lib.)):
Good morning, colleagues and guests. My apologies for not having the symbol of authority, my gavel. You'll have to listen to the tinkle of the glass.
The Vice-Chair (Mr. Steve Mahoney): You're the symbol of authority, Mr. Chairman.
The Chair: I thank you, Mr. Vice-Chair.
Let me take this opportunity of welcoming back some of our guests and the witnesses we have today, as you know, who played, I believe, a very significant role in Bill C-11 and shaping what I think were improvements to that bill. And I think it was because of your interventions and your insights and experiences. And we look forward to your presentations this morning with regards to the regulations.
Mr. Chris Morrissey(Co-founder, LEGIT Vancouver): Thank you. We certainly appreciate the opportunity to be here and to address you on these issues today.
The last time we were here before this same committee was in Vancouver with respect to Bill C-11. At that time we, along with many others, expressed our concern that in Bill C-11 there was only the broad strokes and there was no detail and that our concerns were with the detail. It appears that we certainly had reason to have those concerns, particularly with regard to the issue of family class and the sponsorship of same sex partners.
We're frustrated and somewhat outraged that after 10 years of work and after eight years of processing same sex partners through the back door using independent applications and H and C that the current regs don't regularize and don't bring into the family class that particular experience. It certainly was our understanding by comments that were made to us by the then Minister of Immigration, Madame Robillard, that in fact that was one of the strategies that the department was looking at was to regularize and bring into line within the regs the processing of same sex partners.
So what has happened is that in the proposed regs we now have a definition and the definition is "an individual who is cohabiting with a person in a conjugal relationship having so cohabited for at least one year". And certainly that's a definition that is in line with the modernization of Obligations and Benefits Act.
However we have consistently said during the last 10 years that the immigration context is different from the in Canada context and that there needs to be some exceptions for that, primarily since the main obstacle to people reaching a cohabitation requirement, the main barrier is immigration rules and regulations themselves.
The only exception that appears currently in the regs is that of people who are unable to cohabit because of persecution or any form of penal control. That's very vague. The concern that we had when we were talking about the act and the concern about it's lack of information we now have as well with respect to the regs and the lack of information. What does that mean, how does that get applied; what in fact will determine whether that's persecution; what does that mean, is it different from--it sounds as it's written here that in fact it's a more stringent criteria than the one that's applied for people applying as refugees where they're required to demonstrate that they have a reasonably well-founded fear of persecution. So even the wording is different.
So this definition is really problematic for us because it doesn't fit the experience of the majority of same sex partners of Canadians who are not able to cohabit. And Deb is going to give a few examples of what that experience is like.
Ms. Deb LeRose, LEGIT Vancouver: I'm Deb LeRose, also with LEGIT.
I have some very brief examples, typical situations that gays and lesbians find themselves in and this will help demonstrate some of Chris's points and perhaps give you an idea of what is typical.
For the first example, a Canadian and a Filipina have lived together for two years in the U.S. The Canadian finished her studies in the U.S. and returned to Canada. They lived apart for seven years while maintaining the relationship. During that time the Canadian has had to find a job and re-establish herself in Canada. Under the proposed definition, they're not considered common law and they're not considered family, although this relationship has lasted for nine years.
A second example...a Canadian and a Guatemalan, they met in Guatemala while the Canadian was there on a work visa. They maintained a relationship for six months in Guatemala until the Canadian had to leave when her work visa expired. The Guatemalan cannot get a visitor's visa to come to Canada, even for a short duration, a visit, and under the proposed regulations, they're not considered common law and they're not considered family.
A third example, a Canadian and a Lebanese, the Canadian is on a work visa in Lebanon. They've been in a relationship for four years in Lebanon, but they've not cohabited. The Lebanese cannot be out to his family. It's dangerous for him to be out. He's expected to live with his family until he marries, so there's no opportunity for them to cohabit there, but they've maintained this relationship for four years and under the current proposed regulations, they're again not considered common law.
The last example, a Canadian and an American, this is probably one of the most typical examples that we see. They met on vacation while in the U.S. They spend their holidays together, vacations together, sometimes in the U.S., sometimes in Canada. After about a year, maybe a year and a half of this, they decide that they want to live together in Canada, but under the proposed regulations they're not considered common law and they're not considered family.
These are not extraordinary examples. These are very typical examples. They're real examples of the majority of same sex partners that we've seen. We've seen through LEGIT thousands over the last ten years.
What we see mostly is that most couples have been able to maintain a relationship for at least a year but they're unable to cohabit for that year. I'd say probably 75% cannot cohabit.
А Ms. Chris Morrissey: I would say that for the last eight years immigration officers in Canada and visa officers abroad have been receiving applications from same sex partners who have put together substantial documentation to support the fact that this in fact is a genuine, same sex or heterosexual common-law relationship. Criteria has already been established, a long-term practice has already been established, they already are doing it and it's been being done for eight years based on a one-year maintaining of the relationship and the submission of documentation to prove same.
Ms. Rivka Augenfeld: Well I'll start and maybe.... We've had experience both, I mean, a consultant is not a bad person per se but we think even the best consultants need regulation, they need to be encadre what's the word they need to have some kind of association, there need to be rules about who can call themselves a consultant, what kind of knowledge you need to have as a base to be a consultant, there needs to be a code of ethics, there needs to be a complaint process, there needs to be more or less the kinds of things that I think even I think the Ontario association said that they would like to have those things. It's a provincial matter it seems to be.
A previous version of this committee has studied the matter and came to the conclusion that the regulation of consultants is provincial in the same way that the regulation of lawyers--
The Chair: Who said that? It wasn't this committee, I'm sure. We're much more forward looking than the previous committee.
Ms. Rivka Augenfeld: It was a liberal committee--
The Chair: Terrible, even if they were liberals that's a terrible idea, leaving it to the provinces.
Ms. Tami Friesen: I would just echo some of the same comments. We've seen some clients again come to our office after they've been dealing with consultants and consultants have sometimes gotten them in a worse position than they've been in the first place. Also again we have had clients come and consultants have had said they've had connections with immigration, they're going to be able to fix their problems for them and they have inside connections and things like that.
However on the other hand with legal services being very expensive, consultants may be an option to provide more affordable services to some clients. However again if they are going to exist ... again I agree that they do need regulation something similar to the regulation of lawyers by the provincial governments.
Mr. Steve Mahoney (Mississauga West, Lib.): I'll just ask one question, actually. It has to do with the issue of consultants.
I've had reports from constituents of mine who have travelled overseas about some of the abuses and the problems that are going on in the consulting business in India and in other places abroad. While I tend to think, whether we like it or not, if we get into licensing we're probably going to have to involve the provinces. I wonder, how does it really solve the problem if we license them here in Canada but we have no ability to control the abuses. I've seen copies of newspaper ads from India that are just unbelievable, the stuff they're promising and people are paying tens of thousands of dollars, going into the system and then getting abused and getting ripped off. Do you have any comment on that and how we might solve that particular problem?
Mr. Richard Goldman: If we're talking about somebody putting an ad in a paper promising something they can't deliver for $10,000, I think it is a matter for the RCMP. I think it's a fraud issue.
I'd just like to mention a couple of ideas because, aside from licensing--which I think is a good idea--if you have to be licensed to be an electrician, it seems to me you should to be an immigration consultant as well. There are probably a few things that can be done short of going to licensing, and rather quickly.
Mr. Steve Mahoney (Mississauga West, Lib.): I'll just ask one question, actually. It has to do with the issue of consultants.
I've had reports from constituents of mine who have travelled overseas about some of the abuses and the problems that are going on in the consulting business in India and in other places abroad. While I tend to think, whether we like it or not, if we get into licensing we're probably going to have to involve the provinces. I wonder, how does it really solve the problem if we license them here in Canada but we have no ability to control the abuses. I've seen copies of newspaper ads from India that are just unbelievable, the stuff they're promising and people are paying tens of thousands of dollars, going into the system and then getting abused and getting ripped off. Do you have any comment on that and how we might solve that particular problem?
Mr. Warren LLoyd: Mr. Chairman, members of the committee, thank you very much. I'd like to make a few remarks on the regulations and then Jill is going to speak about the regulation of immigration consultants.
There are two main issues that we would like to emphasize to the committee. The first is the pass mark. We find that the pass mark of 80% is outrageous. That it will be a moratorium on immigration. The problem isn't so much with the grid but the pass mark. The pass mark forces a successful applicant to achieve the maximum in each category and that is virtually impossible for 90% of applicants.
We agree that some parts of the grid need some fine-tuning. Education for example. I'm sure our colleagues will talk more about that. We're also not keen on visa officers assessing language ability. We think this should be done by professionals, Tofol, ILTS or other organizations. But the main thing we want to emphasize is the pass mark must change.
The second issue we want to talk about or emphasize is retroactivity but not exactly in the way it's been talked about to this point. We're pleased that CIC has finally admitted that they are doing this for the first time. That is, applying selection criteria retroactively. They haven't done this since it started, since the point system started in 1967.
It's also very clear that they're only purpose can be to clear the backlog. This is a backlog that they allowed to develop. They didn't use any of the control features in the present system, they haven't changed the demographic factor, they haven't changed the demand list. This backlog could have been avoided. The application of retroactivity to the 180,000 backlog cases will be a slaughter no doubt. Their own visa officers estimate 80% to 90% refusal rates. One of their visa officers said nobody would pass but this isn't the end of retroactivity.
Retroactivity is an integral part of these regulations. Retroactivity is intended to apply to every future change in the regulations. You will recall last week that CIC said, and I quote "We will adjust the pass mark as we go." What they didn't say is that every time they do make that adjustment they intend to apply it retroactively.
We urge the committee strongly to get rid of the concept of retroactivity entirely not just as it applied to the backlog but we don't want it to apply at all, ever, to the selection criteria of independant applicants. Why? Because how is Canadian business going to attract anybody if this system is a lottery, if the pass mark keeps changing. The best people that we're trying to attract from abroad have options. They're not going to quit their jobs and up-root their families in the off chance that they might be able to obtain permanent residence.
The system has to be predictable and a constantly moving pass mark that's applied retroactively will create confusion, unpredictability and we won't get the people we want.
Mrs. Robin Seligman: I would like to thank the chair and members of the standing committee for allowing me to appear on behalf of Canadians for Fair and Just Immigration Policy.
With respect to retroactivity, the coalition is totally opposed to the retroactive application of laws and, in particular, with respect to the skilled workers and business applicants. It sees the very notion as unfair, anti-Canadian and anti-liberal. It would undermine Canada's reputation internationally and throw the selection system into a state of total and utter unpredictability and disrepute. This cannot be good for Canada.
A refund of money is absolutely not the answer. Applicants have waited years for their applications and have put their lives on hold and have changed their plans so I urge the committee not to accept a simple refund, which would not be simple at all as I'm sure Mendel will be getting into.
With respect to what Mr. Lloyd has commented on, future retroactivity is a major problem. The act, in section 55, specifically says, "For the purposes of part 3", which is the selection, "the requirements and criteria set out in sections 63 and 64 must be met at the time an application is made, as well as at the time the permanent resident visa is issued". That means "ongoing retroactivity" and when the government can change the pass mark because it's not by regulation, the pass mark can change any time and therefore this means continuous and ongoing retroactivity, which is not good for stability or for Canada's future.
With respect to skilled workers, the bureaucracy, when introducing the regulations, was very proud and very clear to say that, "we are now trying to select different types of immigrants". What do they mean by this? They refer all the time to the phrase, "the best and the brightest". The Coalition sees that this term is elitist in itself. It refers only to people with higher education and the way the criteria has been set out with a pass mark of 80, it pretty much means someone with a bachelor's degree, master's degree or a Ph.D. and, as Warren also referred, someone who meets all the highest marks in all the selection criteria.
The Coalition is opposed to this definition and thinks this committee should take us back to our roots and think about what Canada needs. We need good, hard-working, honest people who don't necessarily have the highest academic achievements. There are many other people who will greatly benefit Canada and in particular, the skilled trades, of which we are in desperate need.
Ms. Robin Seligman: Okay. I've done the calculation on many of you in the room and I would be concerned.
The Chair: What did you give me, Robin?
Ms. Robin Seligman: I didn't know how old you were so I couldn't--
The Chair: Thank you very much.
Ms. Robin Seligman: Pretty much anyone over 44 years of age.
The Chair: That's why I took my moustache off, just to fool those immigration officers.
Ms. Robin Seligman: I'm assuming under 44.
The Chair: That's why I took my moustache off, to fool the immigration officers.
Ms. Robin Seligman: The age between 21 and 44 it's respectfully submitted that the age should be increased to 50. I'm basing that on demographic studies that have been done. For example The Centre for the Study of Living Standards in 2001 stated that for a start, workers over the age of 45 are at their most productive he noted and with an increased lifespan of Canadians they will continue to be productive workers later into their lives. We have an aging workforce and population that's declining. We need these people.
With respect to the committee, I highly suggest that it is up to this committee and this government to recommend to the bureaucrats the type of immigrants that we want to come to this country. It is not up to the bureaucrats to be dictating to you who Canada should be selecting. With this model they have designed a very elitist system that would only allow not necessarily the best but the brightest. Therefore it is our submission that Canada needs a cross section of skilled workers including the skilled trades and highly educated people and it's up to you to tell the bureaucrats what we need, let them design that.
Mr. Mendel Green (Chair, Immigration Law Specialty Committee, Law Society of Upper Canada): Mr. Chairman, ladies and gentlemen, I am pleased to be here today. I ask myself, based on looking at these regulations, what are the bureaucrats attempting to do? Is it the will of Parliament only to allow married Ph.Ds to get into Canada?
I say to you categorically, and it shocked me when I spoke with the bureaucrats, trying to ascertain, why was it that no blue collar worker, a tool and die maker, a mould maker, can get into Canada based on this existing selection grid. The former minister advised me personally that she was advised by her officials that people in England who went through the apprenticeship system would in fact get into Canada. Well, that's not accurate.
We needs chefs in this country. We need mould makers. We need all these skilled people and really, based on the assessment that I have done internationally by contacting most of the embassies in the world, there isn't even a country in the world that has 15 years of education with an apprenticeship program for skilled workers. It just doesn't work.
A cordon bleu chef in France comes out of school in grade 10 and goes into the cordon bleu chef's education. He or she can't make the grid.
Mr. Warren LLoyd: Well I'm opposed to retroactivity in any form. So I think the new regulations should come into effect the day they're implemented. That date today is June 28. The reason is though, the reason that I've explained and other people have talked about. The concept of retroactivity I think introduces an unpredictability, an instability to the selection of both skilled workers and business applicants. We're not going to be able to attract the best people.
Well I would throw out the system altogether, the new one. I think it is so fundamentally flawed that you can't come up with a proper number. I would stick with the system we have now and make modifications to it. Because I think using the pass mark as the control feature is disastrous. Because every time you want to control volume and you raise the pass mark, you cut of all the people at the bottom, who are the very skilled tradespeople who Robin is talking about.
Maybe the system now is too closely tied to the labour market, going occupation by occupation. But there has to be some connection between the selection system and the needs of the Canadian labour market. You cannot just equate a Ph.D. in geography with a person in another occupation.
Mrs. Robin Seligman: I'm going to try. Again, it's just throwing out a number. You have to go through a bunch of scenarios depending on what the but you're looking at probably between 70 or 75, I would think. Again, it doesn't make sense in a vacuum--it has to be depending on what it corresponds to.
In terms of the date, I, like am totally opposed to retroactivity. The government has said that it's too complicated to run parallel systems. I beg to differ. They're doing it right now. There's still applications that are in process under an old system that changed in 1997. What I recommend you do is you give the person the benefit of the doubt. You run two systems, you have it in your computer system. If you made it under the old system, you're okay. If you do better in the new system, that's great.
Mr. Mendel Green: Regarding numbers on the grid, we go back to your suggestion, what does the government want? If they only want married people with family in Canada, fine. I don't think that's what they want. If we could have some idea that you want a cross section of humanity and people with Bachelors of Science from MIT or from the University of Moscow, then we could come up with a grid.
In the letter that I've given you to Joan Atkinson, dated January 9, 2002, we've come up with some different scenarios, but again I can't answer that. Retroactivity--frankly, one of the biggest visa offices in the United States, the officers were asked to take their last 20 cases in which they waived the interview. By waiving the interview, that means that was a no-brainer. People easily met the point system and they assessed them against the new system. Of the 20 applications, the average people that would pass would only be four. You should ask for that information. The bureaucracy just had that set up two weeks ago. So I don't understand the concept of that.
In the real world of immigration, people who don't speak absolutely fluent English can't make this grid. Frankly, a computer scientist can read English or French, write English or French, but may not be able to conversationally speak English. So, again, before I give you a number, you have to know what you're after. Then you can easily deal with the number.
The Chair: Okay, thank you then. Some very, very fine work, thank you.
Members, we're adjourned until Thursday morning. Thank you for all your hard work.