The year 1976 marked the first time that refugees stopped being dealt with on an ad-hoc basis, meaning they had been dealt with on an individual level, rather than having resolutions created to fit a general problem – resolutions and claims designed so that they could be adapted and manipulated in order to become more useful. The implementation of the 1976 Immigration Act saw the creation of a determination process for refugees seeking refugee status from beyond Canadian borders. There were problems from the beginning with this system. For instance, under the Immigration Act, all applications for asylum were made by paper, and there was no possibility for an oral hearing. In 1985, however, the Supreme Court of Canada decided that not allowing applicants an oral hearing violated the Canadian Charter of Rights and Freedoms. Upon introduction of oral hearings as part of the claim process there was a subsequent increase in the amount of refugees admitted to Canada. While in 1981 there were approximately 14,000 refugees admitted out of a total of approximately 129,000 immigrants, in 1986 the number of refugees jumped to approximately 19,000 out of a total of only 99,000 immigrants. While this was a step in the right direction it appears to be one of the only occasions that an amendment made to the Canadian system for refugees and asylum seekers was beneficial in upholding the rights of the refugees. Since then we have seen a thickening of the border and impaired access to asylum. The definition of a Refugee and Canada as a signatory to the Refugee Convention
People seeking asylum that fit the criteria of a refugee under the United Nations Convention on Refugees must be granted protection upon arriving at a border. According to the Convention, refugees are individuals “who cannot return home because of a well founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.” Countries that have signed the Convention must allow the refugees a safe haven in their country, and must acknowledge that refugees are not immigrants, and therefore should not be held to the same types of strict and high standards for being allowed into a particular country. As a signatory, Canada must uphold their promise to refugee claimants.
The Canadian Immigration and Refugee Protection Act outlines Canada’s commitments to people seeking refugee status in our country. According to the act, the Canadian government promises (among other things), To fulfill Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement… To establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings… [and to] compl[y] with international human rights instruments to which Canada is signatory.
Since Canada has agreed to the Convention, they should uphold the duties that come to them as a country that is able to offer asylum to refugees. This paper will argue that although the Canadian government has signed the United Nations Convention on Refugees, they are not doing their part to uphold their obligations as outlined by the Convention. By implementing resolutions and amendments to refugee policy they are ultimately trying to limit the number of refugees being let in to Canada. They justify this by erroneously claiming that refugees act in some cases as a threat to Canadian national security and in some cases as a threat the Canadian refugee system itself. Bill C-84 Limits the Ability of Refugees to Cross Our Borders
If we are going to evaluate the Canadian government’s decrease in leniency for refugee claimants, it is important to understand how this may have come to happen. Lacroix’s hypothesis is that there may have been an influence to increase the number of stricter refugee laws when, in the summer of 1987, there was a heavy increase in the arrival of Sikh refugees and refugees from Central America. The summer of 1987 was therefore deemed a “crisis” by both the government and the media and thus an “emergency governmental session” was held. This was ultimately the first stage in creating fear of refugees within Canadian society – something that will be discussed further later in this paper. It was determined by the government that they needed to deal with the increase in claimants.
In response to the alleged crisis, Bill C-84 was constructed. The bill gave immigration officers a considerably high amount of authority in deciding if a ship suspected of carrying refugees should be turned away, if fines should be imposed for companies carrying refugees, and in the amount of power they held in terms of search and seizure. By giving border patrol agents almost complete freedom in considering who should be considered for refugee status, Canada’s has shown their willingness to ‘throw back’ refugees to their home countries. This bill puts the power of determining important decisions about a refugee claimant’s safety, security, and ultimately their life, into the hands of border patrol officers who may make decisions based not on the specific circumstances of each individual case, but rather on potential biases or ignorance. While it is still possible that this could happen with the refugee determination board, it is more likely to occur when the decision is placed in the hands of border patrol officers, as the main focus of their job is not to deal with refugee claimants. Giving control to border patrol agents is just one occasion in Canadian refugee history where the government has made efforts to control the number of refugees they allow into the country. The Use of the Safe Country Agreement in Creating the Idea of a ‘Bogus’ Refugee
A safe country agreement exists between the Canadian and US governments that is being used for the wrong reasons. The idea of the ‘safe country’ is supposed to suggest that “asylum seekers from ‘safe’ countries [such as the United States] are presumed to be ‘without foundation’” for their refugee claim. If they are coming from a so-called ‘safe country’ the question is raised as to why they are seeking refugee status in another country in the first place. While one would think that the process of claiming asylum in both Canada and the United States ought to be similar, refugees from certain countries seem to receive harsher treatment when making a claim in the US compared to in Canada. While both Canada and the US have said that their determination process for a refugee claimant’s status is similar, the odds of being accepted are higher in Canada. In addition, Canada will even accept US citizens who claim refugee status in Canada. This seems to point to two conclusions.
It seems likely that a refugee claimant would be more likely to apply for refugee status in Canada based on the simple fact that they are more likely to not be sent back to their home country and face persecution. However, should the standards for accepting asylum seekers not be the same for both Canada and the US? If the US has stricter standards than Canada, and they have a higher rate of sending back refugee claimants to potentially face of the risk of torture, persecution, or even death, one would infer that it is not a safe country in which to seek refuge.
More evidence that the US is not in fact a safe country is seen in the fact that there are even US citizens who are applying for refugee status elsewhere. If their own citizens are in fear of persecution, this brings into question how the US would treat a refugee or refugee claimant that they deemed ‘a threat’. If Canada is going to breach the non-refoulement principle (forced return principle) so obviously and send refugees claimants back to the US, they must reconsider what they consider to be a ‘safe’ country. If one is to disregard the aforementioned information and continue to consider the United States as a safe country this still does not legitimize the use of Safe Country Agreements. Scholars critical of safe country agreements believe that the agreements imply that most people seeking refugee status are illegitimate, and that the agreements serve as a ‘pre-screening tool’ to divert these types of claimants. By eliminating the so-called ‘bogus’, or illegitimate, refugee claims, it will supposedly prevent the Canadian immigration system from being undermined. It is said that these claimants undermine the system since making it in to Canada via an illegitimate refugee claim allows one to bypass immigration. However, while the Canadian government claims this, Creese notes that, “[t]he real impetus behind closing the door on refugees has more to do… [with] the need to control the types of refugees admitted than it does with the actual number of false refugee claimants entering Canada.” Even if one is to accept the Canadian government’s argument that the Canadian immigration system will be undermined by some refugee claims, it does not serve as proper justification for denying these refugees sanctuary. By signing the Convention on Refugees, Canada has made the promise to protect the human rights of anyone who is seeking asylum in their country, and they must protect this right.
Aside from protecting the immigration system from being undermined, governments involved in safe country agreements further justify these agreements by claiming that they also allow the asylum determination process to be expedited, enabling them to catch up on a backlog of cases. This view fails to take into account the fact that it can be an incredibly onerous, and often times life-threatening decision to decide to seek asylum in another country, and it should therefore not be taken lightly. Addressing these refugee claims should take time; they are dealing with the lives of people, and therefore, justifying safe country agreements by defending their ability to speed up the refugee claim process truly offends the Convention. The Use of State Security to Control Admittance of Refugees
One of the reasons there has been such a thickening of the Canadian border, making it more difficult for refugees to penetrate their way into Canada, is arguably because of the events of September 11th. There is no broad agreement as to the gravity of the effects of September 11th on the security issues surrounding the Canadian-US border, but it can most certainly be concluded that there are effects to be seen with regard to the refugee process. While the government may claim that 9/11 has created a need for more impenetrable borders with respect to refugees, this is simply a rouse to help them control the number of individuals allowed into the country.
When the Bush administration decided that “September 11th changed the world,” the war on terror began. As Rashid notes, “all aspects of international and national society have felt the ripple effects of the war on terror… [T]here [is] no fixed enemies or boundaries of conflict, rather its main purpose is to scare the populace into uncritical unquestioning faith of the government.” Because potential refugees may be coming from countries where the war on terror is happening, the government deems these people as threats, even if they do not specifically say so, and even if these people are coming to our country as legitimate refugees. The effects of September 11th are further reflected in Canadian refugee statistics. In the year 2000, just over 30,000 refugees were admitted into Canada. However, from 2001-2003 this number dropped by approximately 3000 refugees per year, only to recover in 2004, three years after 9/11.
If the Canadian government makes the argument that because of 9/11 we do in fact need to have tighter security in terms of the individuals that we let into the country as refugees, their argument is questionable. None of the hijackers from 9/11 entered the United States from Canada, and none of them made a refugee claim in either country. Thus, saying that in order to protect the Canadian systems from threats of terrorist attacks we must restrict the number of individuals that we let into Canada seems ill based. Perhaps the government has responded to refugees in such a manner as a reaction to the fact that after the attacks of 9/11 the media immediately blamed part of the attacks on “Canada’s lax refugee policy.” However the more likely scenario is that the government is labeling refugees as a security threat because this allows them to treat refugees with extraordinary means – such as sending them back to a country in which they face persecution.
September 11th seems to have led to a clear change in terms of how we legitimize the “increased ease with which legal and human rights standards relating to refugee protection are disregarded”. The reason that this legitimization is occurring is due to the fact that it is in the name of fighting terrorism and protecting national security. However, the reason that disregarding human rights standards for refugees is problematic is that there is the danger of weakening those rights which cannot and should not be taken away or limited under any circumstances, such as the right of non-refoulement – the right to not be sent back to a country in which you may face persecution. While it is important to protect states against the threat of terrorist attacks, it is more important to consider the needs of refugee claimants because their fear of persecution or death is often very real and is ongoing, while the threat of terrorist attacks is simply that, a threat.
Furthermore Canada has considered applying the exclusion clause of the Convention on the definition of a refugee, which allows states the ability to criminally prosecute refugee claimants suspected of terrorism instead of removing them from the state from which they are seeking asylum. This is stripping the basic fundamental human rights of refugee claimants, and it is occurring as a result of the thickening border between Canada and the US. It is antithetical to the agreements made within the United Nations when they ratified the Convention on Refugees.
Arguably, Canada may justify their actions claiming that they need to protect their border in accordance with Resolution 1373. The Security Council’s resolution 1373 outlines specific steps that all states must follow as members of the UN in order to identify potential terrorists to prevent further attacks. It should, "ensure that terrorist acts are established as serious criminal offences in domestic laws and regulations and that the seriousness of such acts is duly reflected in sentences served." However, the specific steps asked of the international community through resolution 1373 make the resolution incompatible with international law. Furthermore, a problem may arise because of a conflict between resolution 1373 and the heightened ability and authority given to border patrol agents under the previously mentioned Bill C-84. If these workers and border patrol agents are not properly trained or do not have the specific background knowledge required, their decisions in determining the status of a refugee claimant as a terrorist threat may be influenced by the general perceptions of a terrorist threat post September 11th, rather than true fact. Detaining people seeking refugee status has been profoundly questioned and criticized as a violation of human rights, especially given the questionability of whether or not these types of measures are truly effective in preventing the threat of terrorist attacks.
Another way that we can see the effects of September 11th on the refugee process in Canada is in the events occurring before and immediately after the attacks. In January of 2002, the Supreme Court of Canada made a decision that the right of non-refoulement did not fully apply to the Canadian government, and could revoked from a refugee in special circumstances. This was decided in response to the Suresh case. Suresh was a refugee claimant who was granted protection by the Canadian government in October of 1990. When Suresh applied for landed immigrant status, the Minister of Citizenship and Immigration attempted to deport him back to Sri Lanka based on ‘security grounds’ due to a belief that he belonged to the LTTE, an organization that the Canadian government considered to be a terrorist group. Suresh appealed his deportation, but the Canadian Federal Court of Appeal stated that despite the fact that sending Suresh back to Sri Lanka with the possibility of facing persecution violated sections 7 and 2 of the Canadian Charter of Rights and freedoms, this was “limited by a country’s right to expel those who pose a security risk.” Under the Convention of Refugees, however, the principle of non-refoulement should apply. The Convention and Protocol Relating to the Status of Refugees explicitly states, The Convention is both a status and rights-based instrument and is underpinned by a number of fundamental principles, most notably non-discrimination, non-penalization and non-refoulement. Convention provisions, for example, are to be applied without discrimination as to race, religion or country of origin.
The non-refoulement principle is an essential part of the Convention upheld by governments who have signed the Convention to protect people from potential torture and persecution if they are returned to their home country.
In December of 2002, a new agreement between the governments of Canada and the United States allowed claimants who have travelled through the United States to be returned there and not allowed into Canada to make their claim. This agreement can also be viewed as an attack on the non-refoulement principle (or the forced return principle). The Canadian government will send back a refugee claimant to the US even if there is a certainty that the claimant will be jailed by the US and subsequently not able to return to Canada to pursue their claim because of their criminal record. The grave concern is that this could lead to the return of genuine refugees to countries where they will face severe persecution. In an effort to limit their non-refoulement promises, many states have instead simply decreased their access for asylum seekers to their countries, thus meaning that they will not be in Canada, to be returned to their home country in the first place. Again, Canada cannot breach the non-refoulement principle without breaking their promise to be a country in which citizens may seek asylum. Whether Canada is breaching the non-refoulement principle secretly by finding ways around it, or by making public agreements with the US to send refugee claimants back to them, they are not upholding their duties to the Convention on the Refugee because they are not granting protection or safety. Breaching non-refoulement is used as a way for them to limit the number of refugees that they let into Canada.
Canada is not upholding their responsibilities as a signatory of the United Nations convention on the rights of refugees. They have not fulfilled international legal obligations to provide assistance to refugees, nor have they provided fair systems for refugee claimants that respect the human rights of said claimants. They have not complied, but rather, have found loopholes to abuse the international instruments that exist for refugees. Canada has a history of treating refugees poorly. Despite their promises to refugee claimants, they have systematically created tools and implementations within their domestic law that allow them to control and limit the number of refugees accepted in Canada. We see examples of this when we examine Bill C-84, a bill that emerged from a so-called ‘refugee crisis’, allowing the Canadian government to refuse refugee claimants without technically breaching domestic law. Another implementation by the Canadian government was the Safe Country Agreement with the United States. This agreement was used as a tool by the government to control the number of refugees brought in to Canada, by labeling some refugee claimants as a threat to the immigration system, and by speeding up the refugee claim process. However, Canada is not upholding their commitment to the UN convention on refugees if they are to force some claimants to seek refuge in the Unites States, as it should not be considered a safe country.
Furthermore, the Canadian government has used state security to control the number of refugees brought in to the country. They did this in the post-September 11th era by creating fear within Canadian society that allowed them to make the claim that some refugees posed a threat if they were to enter our country from countries deemed to be associated with 9/11. Via mechanisms such as resolution 1373, and through the breaching of the principle of non-refoulement the Canadian government was able to legitimize the violation of supposedly protected legal and human rights relating to refugees.
According to the United Nations Refugee Agency, before 2005 there was a decrease in the amount of refugees worldwide, at about 8.4 million. However, since 2006 there have been a growing number of people fleeing persecution at around 10 million, which is the highest number since 2001. In Canada, we have decreased in the amount of refugees we accept into Canada. These facts contribute to the chilling truth offered by the UNHCR, that there is a significantly high number of displaced persons who are either facing persecution or the threat of persecution, that have fled but continue to live in the countries within which they are in danger. Even more disturbing is the reality that the UNHCR reports that the average amount of time spent in exile is 17 years. It is undeniable that Canada must take steps to revise their refugee policies in order to accommodate more refugees. While there is no easy way to fix the issue, it will be essential to do so if Canada wishes to uphold international commitments that it has made to displaced peoples.
[ 1 ]. Lacroix, Marie. " Canadian Refugee Policy and the Social Construction of the Refugee Claimant Subjectivity:Understanding Refugeeness." Journal of Refugee Studies 17.2 (2004): 4. [ 2 ]. Ibid, at 4.
[ 3 ]. The UN Refugee Agency. Text of the 1952 Convention Relating to the Status of Refugees. Convention and Protocol Relating to the Status of Refugees. Geneva: 2010. [ 4 ]. "Immigration and Refugee Protection Act (S.C. 2001, c. 27)." Department of Justice Canada. N.p., 2001. Web. . [ 5 ]. Lacroix, Marie. " Canadian Refugee Policy and the Social Construction of the Refugee Claimant Subjectivity:Understanding Refugeeness." Journal of Refugee Studies 17.2 (2004): 4. [ 6 ]. Martenson, Henry, and John McCarthy. "'In General, No Serious Risk of Persecution': Safe Country of Origin Practices in Nine European States." Journal of Refugee Studies. 11.3 (1998): 306. [ 7 ]. Faulkner, Brent. "A Solution in Search of a Problem: Implication of the Canada-Us Safe third Country Agreement Relating to Refugee Claimants at Land Border. 2006: 85. [ 8 ]. Martenson, Henry, and John McCarthy. "'In General, No Serious Risk of Persecution': Safe Country of Origin Practices in Nine European States." Journal of Refugee Studies. 11.3 (1998): 306. [ 9 ]. Creese, Gillian. "The Politics of Refugees in Canada." Deconstructing A Nation: Immigration, Multiculturalism and Racism in '90s Canada. 1.4 (1994): 124. [ 10 ]. Martenson, Henry, and John McCarthy. "'In General, No Serious Risk of Persecution': Safe Country of Origin Practices in Nine European States." Journal of Refugee Studies. 11.3 (1998): 306. [ 11 ]. Rashid, Rafeena. "Fortress North America: A Cosmopolitan Perspective on Safe Third Country Agreements." Department of Law: Carleton University. 2006: 68. [ 12 ]. Ibid, at 68.
[ 13 ]. Milan, Anne. "Migration: International, 2009." Statistics Canada. N.p., 2009. Web. [ 14 ]. Ibid , at 68.
[ 15 ]. Ibid, at 70.
[ 16 ]. Nadig, Aninia. "Forced Migration and Global Processes: Report of the Eighth Conference of the International Association for the Study of Forced Migration, Chiang Mai, Thailand." Journal of Refugee Studies 16.4 (2003): 366. [ 17 ]. Ibid, at 366.
[ 18 ]. "Security Council Unanimously Adopts Wide-Ranging Anti-Terrorism Resolution; Calls For Suppressing Financing, Improving International Cooperation." Press Release SC/7158. UN Security Council, 2001. Web. . [ 19 ]. Nadig, Aninia. "Forced Migration and Global Processes: Report of the Eighth Conference of the International Association for the Study of Forced Migration, Chiang Mai, Thailand." Journal of Refugee Studies 16.4 (2003): 367. [ 20 ]. Ibid, at 366.
[ 21 ]. Bourgon, Stephane. "The Impact of Terrorism on the Principle of 'Non-Refoulement' of Refugees: The Suresh Case before the Supreme Court of Canada." Journal of International Criminal Justice 1.1 (2003): 170. [ 22 ]. Ibid, at 171-172.
[ 23 ]. The UN Refugee Agency. Text of the 1952 Convention Relating to the Status of Refugees. Convention and Protocol Relating to the Status of Refugees. Geneva: 2010. [ 24 ]. Lacroix, Marie. " Canadian Refugee Policy and the Social Construction of the Refugee Claimant Subjectivity:Understanding Refugeeness." Journal of Refugee Studies 17.2 (2004): 5. [ 25 ]. Ibid, at 5.
[ 26 ]. Ibid, at 5.
[ 27 ]. Faulkner, Brent. "A Solution in Search of a Problem: Implication of the Canada-Us Safe third Country Agreement Relating to Refugee Claimants at Land Border. 2006: 13 [ 28 ]. "Backgrounder." Citizenship and Immigration Canada. Web. . [ 29 ]. Milan, Anne. "Migration: International, 2009." Statistics Canada. N.p., 2009. Web.