Minister of Citizenship and Immigration, Jason Kenney, has released “Protecting Canada’s Immigration System Act (C-31): Myth vs. Reality”, a document to Canada’s ethnic communities.
The Canadian Association of Refugee Lawyers (CARL) has reviewed the misinformation presented in the minister’s document, using a reading of the bill itself.
The minister says he will only designate countries as ‘safe’ if they meet objective criteria set out in the law and regulations, such as a low acceptance rate at the Immigration and Refugee Board or the existence of a judicial system, civil society organizations, etc.
Kenney’s bill gives him the power to unilaterally designate countries as ‘safe’ without any evidence that vulnerable people in that country are actually safe. Furthermore, Bill C-31 gives the minister the power to arbitrarily override and ignore his own ‘objective’ criteria and designate countries that do not meet the criteria. All that is required is that, in his opinion, the countries have “an independent judicial system”; that “basic democratic rights and freedoms are recognized” and “civil society organizations exist”.
There is no requirement that Kenney will be guided by expert opinion on the human rights conditions in the country of origin, as opposed to political motives related to the promotion of trade or the advancement of foreign policy.
For example, the minister has made it clear that he considers Mexico and Hungary to be safe countries and that refugee claimants from those countries are ‘bogus’. Yet, the Federal Court ruled the following in a recent case: “the evidence is overwhelming that Hungary is presently unable to provide adequate protection to its Roma citizens”. The United States Department of State issued a travel advisory in February 2012 warning that “the Mexican government has been engaged in an extensive effort to counter Transnational Criminal Organizations [TCOs] which engage in narcotics trafficking and other unlawful activities throughout Mexico. … As a result, crime and violence are serious problems throughout the country and can occur anywhere. … The rising number of kidnappings and disappearances throughout Mexico is of particular concern. Both local and expatriate communities have been victimized. In addition, local police have been implicated in some of these incidents.”
Kenney says the United Nations High Commissioner for Refugees approves of his designation of certain countries as ‘safe’, however, the United Nations High Commissioner says that if Canada is going to have a system of designating countries as ‘safe’, there must be an appeal on the merits from an initial decision.
Bill C-31 denies refugee claimants from designated safe countries an appeal before the Refugee Appeal Division.
Human smuggling and mandatory detention
Kenney says that Bill C-31 does not automatically detain everyone who arrives as ‘part of a human smuggling event’ for a minimum of one year.
The Bill allows the minister to detain someone who allegedly arrives as part of a human smuggling event for a year without judicial review. Although the minister may release the person earlier, he is compelled to do so. The bill also mandates year-long detention for those who, in the minister’s opinion, cannot be processed in a ‘timely manner’ when they arrive.
The minister says that children under 16 will not be automatically detained but Bill C-31 permits (but does not require) detention of children under 16. The decision to detain a child rests under the discretion of Kenney himself. In any case, children will be faced with a difficult choice: remain with their parents in detention or be separated from them and placed in foster care in a strange country. Either option is inhumane.
The minister says that “adults 16 years and older will be released from detention as soon as they are accepted as a refugee by the Immigration and Refugee Board”.
Furthermore, Bill C-31 permits (but does not require) the release from detention of successful refugee claimants. The minister says he will release refugees who make a successful claim, but the bill does not compel him to do so and provides no procedure for an accepted refugee to apply for release.
Appeals of refused claims
The minister says that Bill C-31 would not take away the right of appeal from failed refugee claimants from designated safe countries. The bill does in fact take the right of appeal away from five different categories of refugee claimants, including those from designated safe countries.
Two years ago, the Balanced Refugee Reform Act created an appeal to the Refugee Appeal Division since the government and the opposition political parties agreed that life and death decisions are too vital to be left in the hands of a single Board Member. Every failed claimant would have a right of appeal. Under Bill C-31, many refugees will no longer be eligible for that appeal.
Even though failed claimants can still ask the Federal Court for permission to apply for judicial review, it is not the same as an appeal. The court only considers errors of law; it cannot consider new evidence and cannot grant refugee status. Unlike an appeal, claimants cannot automatically remain in Canada while the court considers their application. They could be deported before a decision is made.
The minister says that removing the rights of asylum seekers to apply for humanitarian and compassionate considerations (H&C) would not result in legitimate claims falling through the cracks. Bill C-31 says that asylum seekers wishing to apply for H&C consideration are ineligible unless they withdraw their refugee claims. The law says that once they withdraw their refugee claims, they must be issued removal orders. This means that they can be deported from Canada long before an officer decides their application.
H&C applications are essential because the Immigration and Refugee Board does not have the power to grant protection based on grounds that include: the best interests of children who may be separated from a parent, certain categories of separated spouses, people who could die because they would not receive adequate medical treatment in their country and those fearing inhumane conditions due to natural disasters.
Loss of permanent residence
The minister says that bill C-31 does not give him any new authority to strip away permanent resident status from recognized refugees, however, the bill does the opposite. Under Bill C-31, if the minister believes that conditions have changed for the better in the refugee’s country of origin, he can apply to the Immigration and Refugee Board to take away that person’s refugee status and permanent resident status. They could be granted no appeal. That person risks deportation, no matter how long he or she has lived in Canada. None can predict when, why or against whom the minister will enforce this provision. This is a new power.
Access to Canada’s refugee system
The minister says that Bill C-31 would not bar political prisoners like Alexander Solzhenitsyn and Nelson Mandela from making asylum claims in Canada.
The minister’s bill says that if someone is convicted of a crime punishable by 10 years or more, that person is not eligible to make a refugee claim. Nelson Mandela was convicted on false charges in South Africa because he opposed apartheid. Alexander Solzhenitsyn was convicted for subversion in Russia. The new law does not create an exemption for the use of criminal prosecution by repressive regimes as a tool of persecution of political dissidents.
Additionally, the minister says that Bill C-31 would not ignore the lessons of history, such as the shameful refusal by Canada to offer refuge to Jews fleeing Nazi Germany in 1939 aboard the SS St. Louis. In fact, the minister’s bill would say this about the German Jews aboard the SS St. Louis: The SS St. Louis was piloted by human smugglers intent on abusing Canadian immigration system. The passengers are part of a ‘human smuggling event’ and will be automatically detained for one year. If their refugee claims are rejected, they will be deported back to Germany with no chance to appeal the negative decision. If their refugee claims are accepted, these German Jews may or may not be released from detention before a year has passed. It will be important to detain them for as long as possible in order to send a message to other German Jews not to try the same thing, lest Canada be flooded with Jewish refugees. In any case, the Jews aboard the SS St. Louis cannot rescue family members left behind in Germany, because ‘irregular arrivals’ must be punished for using smugglers: Even if they are accepted as refugees, they are ineligible to sponsor family members for five years. By that time, it would be 1944, and too late. The Nazi’s Final Solution was in full swing.
In essence, Bill C-31 gives the minister broad and vague powers over the lives of refugees. Kenney says he will exercise those powers prudently and fairly but the bill also minimizes his accountability for how he uses those powers. The Bill contains few remedies if there is an abuse of power by the minister and/or his agents.
Trust me, the Minister says, but that’s not good enough in a democracy.
This article was prepared by the Canadian Association of Refugee Lawyers. For more information email Mitchell Goldberg, Vice-president, Montreal, at firstname.lastname@example.org; Audrey Macklin, Co-Chair, Legal Research Committee, Toronto at Audrey.email@example.com or Donald Galloway, Co-président, Comité de recherche juridique, Victoria at firstname.lastname@example.org.