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No One Is Illegal

The No One is Illegal campaign is in full confrontation with Canadian colonial border policies, denouncing and taking action to combat racial profiling of immigrants and refugees, detention and deportation policies, and wage-slave conditions of migrant workers and non-status people.

We struggle for the right for our communities to maintain their livelihoods and resist war, occupation and displacement, while building alliances and supporting indigenous sisters and brothers also fighting theft of land and displacement.

contact NOII-Van:
email: noii-van@resist.ca
tel: 604-682-3269 +7149

 
 

Racial Profiling

Racial profiling in the Immigration and Refugee system has tangible manifestations as members of South Asian, Muslim, and Arab background in particular are stereotyped and considered terrorists. Racial profiling is a double standard by which individual members of communities are considered responsible for every action of every other individual in their community and legislation is passed and legitimized to criminalize their civil liberties and human rights.

 

ź          Increased budget for immigration detention

“New budget allocations made by the federal government in December 2001 as part of the security response included increased amounts for immigration detention. Most of the money, however, is not being used to detain security-related cases. The big increase is in detention on identity grounds.” (Source: Canadian Council of Refugees) It is a well-known fact that many refugees fleeing state persecution are unable to obtain travel documents and will frequently surrender their forged documents willingly to border officials.

 

ź          Safe Third Country agreement.

In December 2001 the Canadian and US governments signed the Smart Border Declaration, which included negotiation of a Safe Third Country Agreement. The main effect is that asylum seekers who land in the US (a common transit point when travelling to Canada) would no longer be allowed to make their way to Canada to claim refugee status. This is yet another way to create a fortress in North America similar to Fortress Europe, reducing the number of refugee claims in Canada by an estimated 40%.

 

ź          Security certificates

Security certificates allow the government to deport a permanent resident or other non-citizen without showing them (or their lawyer) the evidence against them. Security certificates have been used to arbitrarily detain Muslim men on so-called secret evidence in complete defiance of their basic civil rights. When detained under such an Orwellian-measure, there is no chance of bail for refugees, detention can be indefinite, and neither the person detained nor a defence lawyer is allowed access to the heart of the evidence on grounds of "national security”. At least six people are currently being held on security certificates, all men, five of them Muslim and Arab.

 

ź          Direct backs

On 27 January 2003 Citizenship and Immigration Canada introduced a new policy on "direct backs" at the US-Canada border. The signing of the safe third country agreement was used as a rationale to control the arrivals of hundreds of Pakistani and others fleeing the Special Registration Program and increasing racial profiling in the United States. The policy allows Canadian officials to send claimants back into the US with an appointment to return at a later date that is more convenient to the Canadian government, however many claimants directed back were detained by the US authorities.

  

ź          Proposed new citizenship bill C-18

“Bill C-18 was introduced in October 2002. This was the third time the government tried to get this piece of legislation through Parliament, but C-18 had an important new element compared to the two previous versions: a security certificate provision was included. The bill would have given the government the power to use secret evidence to strip a Canadian of citizenship and deport them. This caused quite a controversy (although it was not widely discussed in the media) and several Liberal MPs were known to be opposed to this and other elements of the bill. The bill died on the order paper in the fall of 2003. One may imagine that the bill is likely to be re-introduced, in one form or another, in the next Parliament.” (Source: Canadian Council of Refugees)

 

ź          Operation Thread

“In August 2003, Canadian newspapers were full of the stories of a group of Muslim men who had been arrested and detained as suspected terrorists under Operation Thread. Eventually there was a total of 23: 22 Pakistani and 1 Indian. They were supposedly a cell of Al Qaeda. Incriminating details included a student pilot with a flight course over a nuclear plant, several young men living together in sparsely furnished apartments, the setting off of the smoke alarm in the kitchen (supposedly a sign of baking bombs) and one man who knew someone who had an Al Qaeda connection. It soon became clear that the suspicions were unfounded, with the RCMP backing away from the accusations first and immigration officials later acknowledging that there was nothing to it. But by then the damage was done: the detainees had been publicly labelled "terrorist suspects." A Toronto Star article of 8 February 2004, entitled "Our dreams are now dust", reported on the fate of some of those deported back to Pakistan: they faced harassment and unemployment as terrorist suspects.” (Source: Canadian Council of Refugees)

  

ź          Creation of the Canada Border Services Agency

“On 12 December 2003, Prime Minister Paul Martin split Citizenship and Immigration Canada, sending enforcement functions over to the newly-created Canada Border Services Agency, which reports to the Minister of Public Safety and Emergency Preparedness. Among the functions transferred is the Pre-Removal Risk Assessment, which, far from being an enforcement function, is actually a mechanism to protect individuals who may face death, torture or other forms of persecution if removed. Final decisions have not yet been announced about other transfers, but port of entry functions, which include the initial interview and eligibility decision for refugee claimants, are also likely to be moved to the Canada Border Services Agency. The CCR has raised serious concerns about having refugee claimants processed by an enforcement agency, since protecting refugees will likely not be a priority within such a structure. In addition, it sends the damaging message to the public that the government considers refugee claimants a threat to public safety.” (Source: Canadian Council of Refugees)


Refugee Determination Process

THE REFUGEE DETERMINATION PROCESS

Source: Canadian Council of Refugees

 

ź          Single decision maker: Panel of one member at the Immigration and Refugee Board

In the past, refugee claimants were heard by two board members and received a positive decision if at least one board member decided that the claimant was a refugee.  Since 28 June 2002, only one board member hears decisions.  The reduction in board members hearing a refugee claimant was supposed to be a trade-off in return for the introduction of an appeal on the merits.  As a result, a refugee claimant’s fate now lies in the hands of a single person.

 

ź          Political Appointments of Board members

Members are appointed to the Immigration and Refugee Board through a political process that takes account of candidates’ political connections, and not just their ability to make good refugee determinations.  As a result, levels of competence vary widely.  Many board members are highly qualified while others are of questionable competence.  As a result, the refugee process can resemble a lottery for refugee claimants: whether you are accepted or rejected may depend on which board member you appear before.

 

ź          Failure to implement the Appeal Process

The Immigration and Refugee Protection Act provides for a Refugee Appeal Division to which a refugee claimant could appeal a negative decision.  However, the government implemented the Act (in June 2002) without implementing those sections of the Act that gave refugee claimants the right of appeal.  In May 2002, the Minister of Citizenship and Immigration promised the Canadian Council for Refugees that the appeal would be implemented within a year.  Over a year later, the appeal has still not been implemented, nor has the Minister made any new commitments about when it will be in place.

 

“I have already made a commitment to the Canadian Council of Refugees that we will have an appeals system in place in one year’s time.”

- Denis Coderre, Minister of Citizenship and Immigration Canada in the House of Commons on June 6, 2002.

 Over two years later, no appeal system based on merits is not in place


WHY JUDY SGRO IS JUST PLAIN WRONG
By CATHERINE DAUVERGNE, The Global and Mail - August 2, 2004

REFUGEE APPROVAL RATES VARY WIDELY
By MARINA JIMNEZ, From Globe and Mail - July 24, 2004

ONE BROTHER STAYS, ONE MUST GO
ALMOST IDENTICAL REFUGEE CLAIMS BUT TWO RULINGS
by HICHAM SAFIEDDINE, Special to the Toronto Star - September 18, 2004


Canadian Law and International Obligations

Canadian Law AND INTERNATIONAL obligations

Canada has an obligation to grant protection to refugees and other persons in need of protection under a number of United Nations Conventions including The 1951 Convention Relating to the Status of Refugees, The 1966 International Covenant on Civil and Political Rights, and the 1984 Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment.

In particular the Universal Declaration on Human Rights, Article 14(1) states, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

Section 3(2)(a) of the Objectives of the Immigration and Refugee Protection Act states that “The refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted” while 3(2)(b) of the Act states that one objective of the Act is to “affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement.”

In determining what is considered persecution, the Supreme Court of Canada stated in Canada (Attorney General) v. Ward, [1993] 2 S.C.R 689, 103 D.L.R. (4th) 1, 20 Imm. L.R (2d) 85: “Underlying the Convention is the international’s community’s commitment to the assurance of basic human rights without discrimination.”

Many IRB members are not abiding by stated IRB objectives and Canadian refugee law by ruling that, for example, refugee claimants are not more at risk than others in similar situations in their country and thus are not in need of protection. Another common ground for rejection at the IRB is that a claimant has not demonstrated personal persecution or targeting although they have established a well-founded fear of persecution for reasons of race, religion, nationality, or membership in a particular social group or political opinion.

In Salibian v. Canada (Minister of Employment and Immigration); [1990] 3 F.C. 250 (C.A), the Court states “The applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future” (Paragraph 17). Furthermore, Decary, JA.goes on to reiterate that:

The best evidence that an individual faces a serious chance of persecution is usually the treatment afforded similarly situated persons in the country of origin. In the context of claims derived from situations of generalized oppression, therefore the issue is not whether the claimant is more at risk than anyone else in her country, but whether the broadly based harassment or abuse is sufficiently serious to substantiate a claim to refugee status. If persons like the applicant may face serious harm for which the state is accountable, and if that risk is grounded in their civil or political stats, then she is properly considered to be a Convention Refugee. (Paragraph 18)

In Rizkhallah, Bader Fouad v. M.E.I (F.C.A., no A 606-90), the Court confirms that “The refugee claimants must establish a link between themselves and persecution for a Convention reason; they must be targeted for persecution in some way, either personally or collectively.”

IRB judges have used extreme subjectivity and arbitrariness when deciding whether certain refugees face individual or collective persecution, despite human rights reports by Amnesty International, Human Rights Watch and the IRB’s own departmental research and reports that verifies the situation that refugees are claiming. Strikingly similar cases, for example two brothers, have received different outcomes.

Another reason for rejection is credibility, even when sufficient and acceptable documents were provided. One such example is of a Palestinian refugee who provided passports, West Bank bridge-passing card, an UNRWA registration, and letters from the Jordanian army stating he was Palestinian, yet the IRB judge ruled that he was Jordanian and not Palestinian, drawing an inference that cannot be supported in light of the documents produced.

When there are minor inconsistencies regarding specific events that date back to several years and inconsistencies that arise from language barriers, Canadian law in Gracielome v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 237 (F.C.A) is clear that “the Board should afford the claimant or any other witness an opportunity to clarify the evidence and to explain apparent contradictions or inconsistencies within that person’s testimony.”

Furthermore, to expect a refugee to remember the exact date upon which she was beaten or tortured or fled is clearly insensitive as it ignores the trauma of the event and the essence of the claim itself. In Khawaja, Mohammad Rehan v. M.C.I. (F.C.T.D., 1999, no IMM- 5385-98), Denault J. provided a comprehensive account of the jurisdiction of the then Convention Refugee Determination Division (now the Refugee Protection Decision) in an account of credibility findings. It is now was well established that:  “The claimant’s psychological condition arising out of traumatic past experience may have an impact on his or her ability to testify. Accordingly, failure to address this factor in its reasons could be a reviewable error where the IRB member has found the claimant not to be credible.”

All these factors are not merely abstract concepts. Ultimately, refugees leave their hearing feeling vulnerable and guilty until proven innocent and the decisions rendered have life-threatening consequences for thousands of asylum-seekers.