Ottawa Citizen : Canadian Law Professors Speak Out on Refugee Reform
The human rights of refugees in Canada are under siege. The Immigration Minister is moving towards new legislation regarding refugees. His recent actions suggest this will make things worse, not better.
Immigration Minister Jason Kenney has made it clear that one of his highest priorities is to keep refugees as far away from Canada as possible Minister Kenney has introduced visa requirements for citizens of Mexico, one of our closest trading partners. At the very time that we are negotiating a free trade agreement with the European Union, he has done the same for citizens of the Czech Republic. All in the name of keeping refugee claimants at a distance.
The Minister has attempted to defend these actions, and to justify his upcoming new law, by decrying abuse of Canada’s generosity. He has ratched up invective against refugees, and has jeopardized the institutional independence of the Immigration and Refugee Board by identifying claimants from particular countries as “bogus”.
Minister Kenney misunderstands refugee realities and refugee law. In blatant disregard of international law he insists that those who arrive without prior authorization are here illegally. Despite the absence of any possible ‘queue’ to join, he calls asylum seekers ‘queue jumpers’. The real refugees, we are told, are not to be found in Canada. They are somewhere else, waiting their turn. If his errors are incorporated in his planned amendments, Canada will fall short of its international legal obligations. His comments have already misled the public and fanned the embers of prejudice.
Protecting refugees is a legal obligation, not a matter of generosity. Canada, along with 143 other countries, has signed the Convention relating to the Status of Refugees, which prohibits us from sending refugees home to face persecution. Refugee protection is an obligation we have chosen. And the burden is small for us in global comparison: a rich country like Canada ought not complain about 35,000 people in a year when Syria hosts over a million Iraqi refugees.
Means of arrival –whether by boat, plane or otherwise - does not reveal whether a person is a refugee. Refugee determinations require decisions on individual cases. Using a smuggler to get to Canada does not indicate whether a person is a refugee: it shows only desperation and a lack of options. Canada does everything it can to prevent people who might be refugees from reaching our borders to claim protection. Our investment in migration integrity officers, visas and biometrics makes it so hard to get here that smugglers can increase their profit margins.
To decide whether someone is a refugee, you need to listen to the person’s story, pore over relevant information and apply the law to the facts. We have a specialized, independent tribunal whose decision makers do just that. When the Minister makes sweeping generalizations, as he has done, about claimants from certain countries not being refugees, he shows disdain for the careful, open-minded approach that this work demands.
The Minister has hinted that a two-tier system based on country of origin may be introduced. Of course some countries are usually safe, and have legal systems that protect human rights. But percentage acceptance rates do not matter when an individual claim is heard. What matters is whether that one person is a refugee. Indeed, the Supreme Court has confirmed that even a British citizen could be a refugee.
Minister Kenney has asserted that if fewer people make claims in Canada, refugees in overseas camps will benefit. This is a misreading of both international and Canadian law. The two numbers are not linked. We have legal obligations to those who reach our territory. Our obligations to others are ‘merely’ moral. We could enshrine this morality in our law, but no government has ever dared. Indeed, the track record of this government is that when numbers within Canada drop, as they did dramatically in 2005 and 2006, resources are not transferred to assist those overseas.
The current backlog of claims is not unprecedented. There were similar backlogs in the 1990’s and again in 2001. They were eradicated through professional dedication and dogged persistence on the part of the tribunal’s staff, supported by adequate federal government funding. The current backlog was created when the government failed to appoint (or re-appoint) members to the tribunal, leaving too few decision makers to do the work.
Our refugee determination system could certainly be improved. But the call for efficiencies should not justify abandoning fundamental principles. The international refugee regime was created in the aftermath of the Second World War. It reflects a deep commitment to human rights and an appreciation of our common humanity. Our procedures for adjudicating refugee claims and our decision to entrust these life and death decisions to independent and impartial decision-makers show our commitment to fundamental human rights. We call upon our government to respect the human rights of refugees, to respect Canada’s international commitments, and to respect Canada’s laws.
- Sharry Aiken, Associate Professor of Law, Queen’s University
- Catherine Dauvergne, Canada Research Chair in Migration Law, University of British Columbia,
- Donald Galloway, Professor of Law, University of Victoria,
- Audrey Macklin, Professor of Law, University of Toronto
And 12 other law professors from Canadian universities:
- Peter Carver, Associate Professor of Law, University of Alberta
François Crépeau, Hans and Tamar Oppenheimer Chair in International Public Law, McGill University - Evan Fox-Decent, Assistant Professor of Law, McGill University
- Gerald Heckman, Assistant Professor of Law, University of Manitoba
- France Houle, Associate Professor of Law, University of Montréal
- Estibaliz Jimenez, Criminology Professor, University of Montréal
- Nicole LaViolette, Vice Dean and Associate Professor of Law, University of Ottawa
- Constance MacIntosh, Associate Professor of Law, Dalhousie University
- Delphine Nakache, Assistant Professor, International Development and Global Studies, University of Ottawa
- Obiora Okafor, Professor of Law, York University
- Sean Rehaag, Assistant Professor of Law, York University
- Peter Showler, Director, Refugee Forum, University of Ottawa