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Comments to the Standing Committee on Citizenship and Immigration on the Proposed Safe Third Country Regulations
14 November 2002
The Canadian Council for Refugees is an umbrella organization committed to the protection of refugees in Canada and around the world and to the settlement in Canada of refugees and immigrants. Our membership is made up of some 180 member organizations from across Canada.
The CCR is opposed in principle to the Agreement between the Government of Canada and the Government of the United States of America regarding Asylum Claims Made at Land Borders (the Agreement) and to the designation of the US as a "safe third country." In the view of the Canadian Council for Refugees, the US is not a safe country for all refugees. Furthermore, Canada, as one of the most privileged countries in the world, should not be closing its doors on refugees, but rather asking what more we can do to ensure that refugees receive protection.
While the goal of the Agreement is to close the doors on refugees and force many of them to make their refugee claim in the United States, many suspect that the real effect will be to throw refugees into the hands of smugglers and traffickers, who will exploit the new opportunities opened to them. We are concerned that refugees, desperate to reach protection in Canada, will attempt dangerous ways of getting into the country, when without the Agreement they are able to present themselves in a safe and orderly way at a border point.
Our concerns about sending refugees back to the US have been heightened over the past few weeks. We have all seen how Canadian citizens and permanent residents seeking to enter the US have been subjected to discriminatory treatment, humiliation and, in the case of Maher Arar, even deportation to Syria where he is now in jail. If Canadian citizens, who have the protection of the Government of Canada, can be so treated, we can be sure that refugees, who have no government to protect them, fare even worse. Arabs, Muslims, people with origins in the Middle East and people who look like any of these groups face discriminatory treatement by the US authorities. In these circumstances, how can Canada, a country committed to principles of non-discrimination, claim that the US is a safe country?
Given that the Government of Canada is nevertheless committed to pursuing the designation of the US as a safe third country, the CCR is concerned that the negative impacts on refugees of the measure be kept to a minimum. It is in this spirit that we offer our comments on the proposed regulations.
The Agreement and the regulations
The regulations that were prepublished on October 26 flow from the Agreement initialled by the governments of US and Canada on 30 August. The Agreement spells out the circumstances under which refugee claimants applying in Canada may be sent back to the US (and vice versa). The proposed regulations, however, do not always correspond to the Agreement. For example, the definition of "unaccompanied minor" is significantly narrower in the regulations than in the Agreement. Similarly, in the Agreement "refugee status claim" is defined in such a way that it covers both refugee claims and applications for Pre-Removal Risk Assessment (PRRA), whereas the regulations are worded so as to exclude applications for PRRA. These points are developed below.
As a result of these discrepancies, there are some claimants who according to the Agreement should be exempted from return to the US, but who the regulations would send back to the US. It is unclear what their status would be since the US would not, under the Agreement, have made any commitments towards these refugee claimants.
Recommendation: Amend the proposed regulations in order to correspond fully to the US-Canada agreement, particularly with respect to categories of claimants exempted from the application of the Agreement.
Nature of decisions made at border points
In 1992, when Parliament was debating changes to the law that would empower immigration officials to decide on refugee claimants' eligibility, many groups, including the Canadian Council for Refugees, raised concerns about giving such an important decision to a single official, rather than a tribunal. The response from the government was that the eligibility decisions put in the hands of the officials would be simple determinations of fact. The Minister at the time, Bernard Valcourt, stated: "Those who come to Canada to seek refugee status will have access to the IRB unless it can readily be determined that they fall within one of five clearly defined exceptions. Where it cannot readily be determined that such is the case, their claim will be forwarded to the IRB" (29 October 1992).
Under the proposed regulations, however, it certainly cannot be Areadily determined@ whether a person claiming refugee protection at a US-Canada border point should, according to the regulations, be found eligible or returned to the US. For example, it is not always easy to determine whether a young person is under 18 years of age. Nor can it necessarily be readily determined whether a minor has a parent or legal guardian in Canada or the US. While sometimes a person may have clear proof that she has a family member in Canada who is a permanent resident or citizen, in many cases she doesn=t have that proof and it may not be easy to determine whether it is the case or not.
Under the Immigration and Refugee Protection Act the stakes are higher than ever. A person who is wrongly turned back to the US has no right of review (unlike the US system which provides for a review before an adjudicator) and cannot seek to correct a wrong decision by making another refugee claim because the law only allows one claim per lifetime.
Recommendation: Amend the Act to provide that determinations of the application of safe third country provisions are made by the Immigration Division. In the alternative, provide for an internal review mechanism.
Non-application - specific circumstances
Burden of proof
159.5 puts the burden of proving that they meet an exception firmly on the claimants. It refers to subsection 100(4) of the Act which states "The burden of proving that a claim is eligible ... rests on the claimant..."
Putting the burden so decisively on the claimant calls into question the intentions of the Government of Canada. Is the intention to reunite refugee families or merely to reunite refugee families who are in the position to offer proof of their relationship, of the status of the family members in Canada and of their presence in Canada? Is the intention to protect unaccompanied minors, or merely to protect unaccompanied minors who are able to prove that they are minors and to establish a negative, namely that their parents are not in the US or Canada?
As mentioned above, the question of the burden of proof is particularly important because the Canadian refugee determination system only allows one refugee claim in Canada per lifetime.
Amira comes to the border and states that her husband is in Canada. She has nothing in writing to show that her husband is in Canada, does not know his exact address and his name is not found in Citizenship and Immigration Canada's database because of different ways of transliterating his name. The immigration official finds her ineligible and sends her back to the US. A week later she is able to obtain documentation that establishes that her husband is indeed in Canada. However, if she presents herself again at the border she will be found ineligible to make a claim because she has already made a claim.
Requiring that a claimant not only meet one of the exceptions, but also have the proof that they meet the exception, seems to go beyond the Agreement.
Recommendation: Amend the regulations to state that subsection 100(4) of the Act is to be interpreted in a manner sensitive to difficulties that may be faced by the claimant in providing proof and that gives the benefit of the doubt to the claimant.
Status of family member in Canada
Article 4 of the Agreement provides an exception for a claimant who has a family member who "has been granted lawful status, other than as a visitor" in Canada. The proposed regulations only recognize status as citizen, permanent resident or accepted refugee. In the view of the CCR, the plain meaning of the Agreement suggests that family members in Canada on a temporary resident visa should qualify, unless they are in the visitor class. In other words, family members on a temporary resident visa as members of the worker or student classes should qualify.
In addition a family member in Canada on a temporary resident permit seems very clearly to have lawful status that is other than as a visitor. This includes refugees who have been resettled from abroad on a permit.
Recommendation: Amend the regulations to include exceptions for claimants with a family member in Canada who has:
- a temporary resident visa other than a visitor visa (i.e. to include student visas and temporary worker visas)
- a temporary resident permit
- approval in principle under humanitarian and compassionate grounds
The wording of the proposed regulations does not grant an exception for a person with a family member who has been granted refugee protection under the Pre-Removal Risk Assessment (PRRA). Under the Immigration and Refugee Protection Act, a "claim for refugee protection" ("demande d'asile") is a specialized term that refers only to claims to the IRB. A claim for protection under the PRRA is called an "application". The definition of "refugee status claim" in the Agreement as a request for protection clearly covers both claims and applications.
Revised wording (e.g. "A person on whom refugee protection has been conferred") is required to ensure that those accepted under PRRA are covered.
Recommendation: Amend 159.5(b) to cover family members on whom refugee protection has been conferred through the PRRA.
Similarly, in 159.5(c) reference is made to a family member who has a claim pending, without including family members who have an application for PRRA pending.
Recommendation: Amend 159.5(c) to read "a family member of the claimant who has attained the age of 18 years is in Canada and either has made a claim for refugee protection that has been referred to the Board for determination or has an application for refugee protection that is pending."
The regulations define unaccompanied minor as someone who is not accompanied by someone who has reached 18 years. This contrasts with the Agreement which says an unaccompanied minor is someone with no parent/legal guardian in US or Canada. The regulations would therefore lead to the return to the US of minors who according to the Agreement should be admitted to Canada. Furthermore, the regulations do not define what is meant by accompanied (in terms of the relationship between the child and the person over 18). The adult may be just someone who agreed to help the child get to the border or to care for her/him for a limited time. There is no provision for determining if the accompanying adult has any legal (or even moral) obligation to continue to care for the child once they are turned back at the border.
This is a matter of particular concern since the US has not ratified the Convention on the Rights of the Child and has a shocking record of detaining asylum seeking children.
José, a 13 year old refugee, presents himself at the Canadian border to make a refugee claim. His parents are both dead and he has no legal guardian. He is accompanied by his 19 year sister. According to the Agreement, he should be allowed to make his claim in Canada. According to the regulations both José and his sister are returned to the US (where they may be detained).
Recommendation: Delete in paragraph 159.5 (d)(ii) the words "and is not accompanied by a person who has attained the aged of 18 years."
Non-application - others
The Agreement lists categories of persons exempted from the safe third country rule and then also provides a discretionary power to each government to admit claimants, despite the Agreement, if it is determined by the government that it is in the public interest to do so.
The proposed regulations reflect this "public interest" discretion by defining at 159.6 certain categories of people to whom it is intended that this discretion will be granted. However, there is no open-ended category allowing the Minister to admit a claimant on his discretion. This means that the regulations could not be used to address particularly compelling cases that didn't fit any of the defined categories.
Recommendation: Add a provision allowing for the non-application of paragraph 101(1)(e) of the Act where the Minister determines that it is in the public interest to exempt a claimant from the safe third country provision.
The open-ended category should be used to exempt claimants whom there are reasons to believe may be particularly negatively affected by return to the US. This should include claimants who appear likely to be impacted because of their lack of identity documents (reflecting the acknowledgement in the Regulatory Impact Analysis Statement that these claimants may be particularly disadvantaged if returned to the US). An open-ended category would also allow the Canadian government to respond swiftly to indications that particular groups are being treated unfairly in the US.
An open-ended category is also required to give flexibility to deal with situations that have not been foreseen but where it would seem obvious that a claimant should be admitted to Canada. For example, a family might arrive at the border accompanied by an elderly and frail family member. If all the family were admitted to Canada to pursue their claim, surely it would be wrong to send the elderly relative back to the US.
The Canadian Council for Refugees welcomes the proposed specific public interest categories outlined in 159.6. They reflect some of the distinct differences between US and Canadian policies and realities.
We urge the Canadian government to go further and recognize other categories. In particular, consideration should be paid to persons facing discrimination in the United States, persons who face reduced chances of finding protection if they are forced to claim in the US rather than in Canada, people for whom Canada is a more logical country of refuge because they are French-speaking and cases where the best interests of a child affect dictate that the claimant should be admitted.
Recommendation: Amend 159.6 It is recommended that the following categories of exceptions be added:
- Nationals of and people born in countries specifically targetted in the US National Security Entry-Exit Registration System (NSEERS)
- Claimants fleeing gender-based persecution (reflecting the acknowledgement in the Regulatory Impact Analysis Statement that these claimants may be particularly disadvantaged if returned to the US).
- Claimants who have been in the US for more than one year (and therefore risk being found ineligible, whereas they would be eligible in Canada).
- Where the best interests of an affected child requires that the claimant be admitted to Canada (e.g. where an unaccompanied child in Canada is making a refugee claim and a family member makes a claim, where the parent of a child making a refugee claim in Canada arrives, where a minor returned to the US is likely to be detained, where a minor is making a refugee claim and has a parent in Canada without a relevant status, where a family member is accompanying a minor).
Application at airports
159.4(2)(b) reaches further than the Agreement. Article 5 of the Agreement covers only persons who are being removed, whereas the proposed regulations cover any claimant in transit through Canada from the US who has had a claim for refugee protection rejected by the US. If the person has not been ordered removed by the US, there is no reason to assume that the US considers the person not to be currently in need of protection (the person might, for example, have been refused refugee protection by the US 10 years ago in totally different circumstances).
Recommendation: Amend paragraph 159.4(2)(b) to limit its application to persons being removed by the United States.
The Canadian Council for Refugees is deeply concerned about the impact of the safe third country provisions on refugees. Experience with safe third country provisions in Europe shows that such measures do not necessarily work as intended. There is a need to monitor how the provisions actually work in practice. NGOs have an important role to play in reporting on the practice.
The Agreement is based on the premise that the US is safe for refugees. This is highly debatable. The current US refugee determination system is subject to many criticisms. Moreover, the system may change for the worse. The US Government is on the point of creating a Department of Homeland Security, to which the asylum officers would be moved. There are deep concerns about whether asylum determinations performed by a department whose primary mandate is to deal with enforcement will be fair determinations. If the Canadian government is pursuing the safe third country agreement, measures should be put in place to monitor whether the US becomes less safe for refugees in the coming months.
Recommendation: Add a provision calling for parliamentary review six months after implementation of the application of the regulations and the impact on refugee claimants denied the right to pursue a claim in Canada.