REFUGEE RIGHTS ARE HUMAN RIGHTS

HOW CANADA LIVES UP — OR FAILS TO LIVE UP — TO
ITS HUMAN RIGHTS OBLIGATIONS TOWARDS
REFUGEES AND OTHER NON-CITIZENS

Canada is considered to be among the countries that best respect human rights and that offer a most generous welcome to refugees. Canada has signed on to many of the international human rights instruments and has the Canadian Charter of Rights and Freedoms as a fundamental safeguard of people's rights.

But does Canada in fact respect refugees' human rights? Not entirely. Refugees are among the most vulnerable people in society -- at risk of deportation, often lacking the language, connections, knowledge of Canadian society and other resources to defend their rights. And whenever there are cutbacks and restrictions to be made, refugees -- as non-voters, foreigners, the uninvited -- are the first to suffer.

What follows is an overview of just some of the areas where Canada is not measuring up to international standards, showing that Canada is among the "best" in the world not because we're perfect, but because the standards of human rights respect around the world are so low.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights, adopted in 1948, is a statement of the basic rights and fundamental freedoms owed to all human beings. As a declaration, it does not have binding force, but it is internationally recognized as a cornerstone of human rights protection.
 
 

WHERE CANADA FALLS SHORT:
 

• Although Canada has a system to determine who deserves asylum, not everyone has access to this system. Some are denied access because a removal order has been made against them, and, according to the Immigration Act, you cannot make a refugee claim once a removal order is made.

For example: T., a refugee from Zaire, arrived in Canada and was questioned at the airport. He did not say he wanted to claim refugee status because he believed he would be immediately sent back to Zaire (this happens in some European countries, and had in fact happened to his sister). A removal order was made against him and he was detained, pending deportation. It was then too late to make a refugee claim. He was only saved from deportation because Canada declared a moratorium on removals to Zaire. Eventually (after 5 months) he was released from detention. Nearly three years later he continues to live in limbo.

Others are found ineligible to make a refugee claim for reasons that go beyond what is allowed in international law.

For example: Sophie and her family fled persecution in their country of origin and found refuge in a neighbouring African country. However, because the two countries had close links, their persecutors were able to follow them and continued to threaten their lives. So they fled again, this time to Canada. Canada refused to hear their claim for refugee status, because, according to Canadian law, those who already have refugee status in another country are ineligible to make a claim, even if they are not safe in that other country.
 

• Canada has in place an active interdiction program which prevents people from travelling to Canada to seek asylum from persecution. An important part of this interdiction program is the visa requirement: Canada requires people from most countries to have a visa before travelling to Canada. If officials suspect that a person wants to travel to Canada to escape persecution, they won't give a visa. If dramatic human rights abuses occur in a country that doesn't have a visa requirement, Canada imposes one, to prevent refugees travelling to Canada.

For example: in 1983, when communal riots broke out in Sri Lanka, and many Tamils were killed or forced from their homes, Canada imposed a visa requirement on Sri Lankans, thus preventing Tamil refugees from seeking asylum in Canada.

Another aspect of the interdiction campaign is the imposition of fines on airlines that bring "improperly documented" travellers into Canada, even if they are refugees. This turns airline staff into immigration enforcement officials overseas, checking and re-checking travellers' documents and preventing them from getting aboard if they suspect that their documents are not genuine. Refugees turned away often end up being jailed or forced back to their country of origin.

For example: L. arrived in Canada and made a refugee claim. A couple of months later her husband also escaped from their country of origin. On his way to Canada to rejoin his wife (who had recently given birth) he was interdicted, i.e. stopped from getting on the plane to Canada, in London, England. He was given no indication that he could make a refugee claim in England and was immediately deported back to his country of origin.
 

Geneva Convention Relating to the Status of Refugees

The principal international instrument for refugees is the Convention relating to the Status of Refugees, adopted in 1951. Canada did not become a signatory of the Convention until 1969. Unlike other human rights instruments that came later, there is no monitoring mechanism or committee that examines countries to see whether they are complying with their obligations under the Convention.
 
 

WHERE CANADA FALLS SHORT:

Article 33, which contains the fundamental prohibition against "refoulement" (forced return of a refugee), is violated if and when Canada sends back a refugee who has been denied the right to enter the refugee determination process (see above). The fact that Canada's refugee determination system has no appeal on the merits also means that refugees who are refused in error have no opportunity to correct the error and risk being sent back to persecution (see below).
 

The Refugee Convention also has a number of other provisions that are not fully respected by Canada.
 

To be naturalized in Canada, refugees must first become permanent residents, and then later apply for citizenship. In recent years, becoming a permanent resident has become more difficult and more expensive.

Since 1993, refugees recognized in Canada have to produce satisfactory identity documents before they can become permanent residents. Those who, through no fault of their own, have only limited documentary proof of their identity, must wait for long periods -- or potentially for ever -- before they can be naturalized. Women, young people and those from rural areas are particularly hard hit by the ID rule, since they are less likely to have had identity documents such as driving licences and school certificates.

Far from reducing costs, Canada through the 1990s imposed ever increasing fees on refugees and others applying for permanent residence and citizenship. The Right of Landing Fee (commonly known as the Head Tax) of $975 per adult was a particularly heavy burden.  It was - thankfully - eliminated for refugees in February 2000, but it is only one of the fees imposed. A refugee family of 5 (2 adults, 3 children), recognized as refugees in Canada, still must pay a total of $1300 for permanent residence and $700 for citizenship.
 

IMMIGRATION AND CITIZENSHIP FEE INCREASES
 

June 1, 1994	Refugees recognized in Canada must pay processing fees for landing	$500 per adult $100 per minor
February 28, 1995	Introduction of Right of Landing Fee (ROLF)	$975 per adult
February 28, 1995	Introduction of Right of Citizenship Fee	$100 per adult
February 28, 1995	Increases in citizenship grant fees	Increase from $80 to $100
January 2, 1997	Increases in various immigration service fees	e.g. visitor visa from $55 to $75, file transfer from $55 to $100
1999	Proposed introduction of cost-recovery fee for permanent resident card	estimated cost c. $50

NB February 2000: the government eliminated the Right of Landing Fee for refugees!
 
 

Even after they have been recognized by the Immigration and Refugee Board, Convention refugees in Canada cannot get travel documents until they have become permanent residents. This causes particular hardship for some refugees who must wait years to get permanent residence, either because they are waiting years for security checks to be completed or because they don't have "satisfactory" identity documents. Many of these refugees come from countries such as Somalia or Afghanistan where there is no functioning government that can provide identity documents.

For example: R. was recognized as a Convention Refugee from Iraq in 1993. Six years later, he has still not received his permanent residence due to long delays in conducting security checks. He has recently learned that he has terminal cancer and would like an opportunity to see his mother. Since he is not a permanent resident, his mother is almost certain to be refused a visa to visit Canada. As for R. getting a travel document to go to a third country to meet his mother, such requests made by Convention Refugees are routinely rejected by Canadian authorities.
 

International Covenant on Civil and Political Rights

The Covenant on Civil and Political Rights (ICCPR) was adopted in 1966, giving force to the civil and political rights outlined in the Universal Declaration of Human Rights. This Covenant, the Covenant on Economic, Social and Cultural Rights and the Universal Declaration of Human Rights together form the International Bill of Human Rights. Under the ICCPR, states must make reports to the UN Human Rights Committee on the measures they have taken to implement the Covenant.
 

WHERE CANADA FALLS SHORT:

Refugee status in Canada is determined by members of the Immigration and Refugee Board whose appointments are political and thus not necessarily based on competence. Refused refugee claimants have no right to appeal the decision, even though their life may depend on it. Canadians in contrast can appeal matters as trivial as a parking ticket.

The only remedies available to refused claimants are extremely narrow. They can apply for judicial review at the Federal Court: this is sometimes called an "appeal" but it is not an appeal on the merits. Only a narrow range of technical errors can be corrected and no new evidence can be introduced. Applications must be made within 15 days of a negative decision and the Court only hears about 10% of applications.

Refused claimants can seek a risk review (known as "PDRCC") with Citizenship and Immigration Canada (also within 15 days of the decision). The definition of "risk" is very narrow and the review is explicitly not intended to correct bad refugee decisions. Fewer than 5% of applicants are accepted.

This means that a refugee who is refused in error often has no opportunity to have the error corrected, even if further evidence to corroborate their persecution becomes available. This leads to grave injustices.

For example: Peter is a Christian from Iran. His father died and his uncle challenged Peter's and his mother's right to the family home, because Peter is not a Moslem. Peter tried to dispute the uncle's legal challenge, but this led to beatings and harassment by the Revolutionary Guard, of which Peter's uncle was a member. After a severe beating, Peter fled the country. He was denied refugee status by an Immigration and Refugee Board Member that had a reputation of hostility toward Iranian refugee claimants. There was nothing Peter could do to have someone in the system give the decision a second look. Three years later he is still trying to convince Citizenship and Immigration Canada that he should not be removed to Iran.

For example: The Mitac family, who based their refugee claim on the fact that they were persecuted as Roma (Gypsies), was rejected on the basis that they looked more "Pakistani or Turkish." The Board members thought they looked too dark-skinned to be Roma. The decision was overturned in a Federal Court ruling that had hard words to say about the Board using skin colour to decide ethnicity. The ruling noted that judging an applicant's physical features is "inherently dangerous". This family was lucky that the Federal Court threw out the decision: how many other decisions made on such wrong-headed notions go uncorrected?
 
 

Under the Immigration Act, immigration officers have significant powers of arrest on the basis of suspicion that the person would not appear for proceedings. This leads to "pre-emptive" arbitrary arrest and detention of people under removal orders who have always complied with all immigration requirements. Even when bonds for release are set, they are often high (sometimes $5,000 - $10,000) -- well beyond what most refugee claimants can pay. Some claimants have remained in detention for one, two or even three years. For some non-citizens certified as a "security risk" in arbitrary procedures, detention is mandatory and indefinite.

Immigration officers are the only Canadian officials with the power of arrest that are subject to no independent oversight. Any complaints about immigration officials must go to the Immigration Department itself.

For example: Roger, a refused refugee claimant from Zaire, had always complied with immigration requirements. One evening immigration officials came to his home to arrest him. Because of their intimidating manner and the fact that he had always obeyed the law, Roger was so confused that he tried to call the police. He was not even given time to put his shoes on before being taken away to the detention centre.

For example: M. fled his home in Africa where he had been active in a political opposition group. He was detained on his arrival in Toronto because he did not immediately claim refugee status (believing that he must try to enter as a visitor). When he did try to make a claim, an immigration official told him it was too late and that Canada already has too many refugees. M. spent three months in two different jails and one immigration detention centre, before he was finally released on bail.
 
 

Canada fails to protect the unity of families both through slow family reunification (see below) and through deportations that separate families.
 

• Since changes to the Immigration Act in 1995, many permanent residents are deported without a hearing, after committing a crime and serving their time. This happens through the designation of a person as a "danger to the public" in a highly unfair process. A high proportion of the people found to be a "danger to the public" are black. Some of those removed have been in Canada since very early childhood, have no connections in their country of origin and do not even speak the language of their "home" country. Many of the removals also lead to families being separated.

In April 1999, the UN Human Rights Committee published its Concluding observations following its examination of Canada's compliance with the International Covenant on Civil and Political Rights. Under its Principal areas of concern and recommendations, it stated at Para. 15:
 

The Committee remains concerned about Canada's policy in relation to expulsion of long-term alien residents, without giving full consideration in all cases to the protection of all Covenant rights, in particular under articles 23 [family unity] and 24 [rights of child].

The Convention against Torture and other cruel, inhuman or degrading treatment or punishment was adopted in 1984. The CAT expands on Article 7 of the International Covenant on Civil and Political Rights: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment ..." Canada signed the Convention Against Torture in 1985, and ratified it in 1987. The UN Committee Against Torture examines states on their compliance with the CAT and can receive and investigate individual complaints. Canada is due for its next examination.
 
 

WHERE CANADA FALLS SHORT:

The Immigration Act nowhere says that people must not be removed to torture. While many people at risk of torture are refugees, and can be protected through Canada's refugee determination system, there are also non-refugees that, according to the Convention Against Torture, need protection from deportation. The refugee definition has a variety of limiting clauses (for instance, refugees must be persecuted on one of five grounds and must not be criminals), whereas no one can be removed to torture, no matter why they risk torture, no matter what they may have done in the past or be likely to do in the future. The absoluteness of the rule reflects the fundamental abhorrence of torture and the international community's obligation to refuse any complicity with torturers.

There is no process to determine whether a person about to be removed might be at risk of torture. People at risk can try to present their arguments about the possibility of torture in another process such as a humanitarian and compassionate review (if they can afford it: it costs $500 per adult) but there is no legal obligation for the decision-maker to apply the Convention Against Torture rule. Failing this, people can also try international remedies, such as appeal to the United Nations Committee Against Torture. But Canada does not necessarily abide by their rulings.

For example: In December 1997, Canada deported Tejinder Singh to India, despite a request by the UN Committee against Torture that deportation be stayed so that it could look into his case. He was alleging that he would be at risk of torture. He was arrested on arrival in Delhi.
 

• In 1999, Canada adopted a new Extradition Act. This was an ideal opportunity to incorporate the CAT obligation not to extradite anyone to a place where they risk torture. However, this was not done. Canada thus runs the risk of extraditing people to torture.

In April 1999, the UN Human Rights Committee published its Concluding observations following its examination of Canada's compliance with the International Covenant on Civil and Political Rights. It stated at Para. 13:
 

The committee is concerned that Canada takes the position that compelling security interests may be invoked to justify the removal of aliens to countries where they may face a substantial risk of torture or cruel, inhuman or degrading treatment. The Committee ... recommends that Canada revise this policy in order to ... meet its obligation never to expel, extradite, deport or otherwise remove a person to a place where treatment or punishment that is contrary to article 7 is a substantial risk.

The Convention on the Rights of the Child was adopted in 1989. Almost all countries (though not the U.S.) have signed on. The UN Committee on the Rights of the Child examines States on their compliance with this Convention. Canada was examined in 1995 and will soon be undergoing another examination.
 
 

WHERE CANADA FALLS SHORT:

The Convention has never been incorporated into domestic law in Canada. The Immigration Act nowhere requires decision-makers to consider the best interests of the child, let alone make them a primary consideration. The result is that immigration decisions are taken that cause children and youth to be detained, to be deported to situations of risk, or to be separated from one or both parents and siblings.

For example: Marie, a 17-year-old young woman, fled her home, a francophone African country at war, and arrived in Montreal to join a number of her relatives. She was refused refugee status and a request for humanitarian consideration was also turned down. Immigration Canada was set to remove her to the United States, despite the fact that she does not speak English, has no family in the States, and would be at risk of detention and possible deportation to her home country. Apparently no special consideration had been given to the fact that she was a minor or to what would happen to her after she was deported to the US. Marie was lucky -- a determined advocate managed to stay the removal at the last moment and a second humanitarian request was given a positive response.
 

• In July 1999, the Supreme Court of Canada made a ruling in the case of Mavis Baker, a woman facing deportation back to her home country. Such a deportation would necessarily affect her Canadian-born children. Their father would remain in Canada, so one way or another, the children would be separated from one of their parents if Ms Baker was removed. However, their interests were not taken into account in Immigration Canada's decision. The Supreme Court ruled that the Convention on the Rights of the Child does not have direct application because it has never been implemented (ie. incorporated into law) by Parliament. However, the Court did say that international human rights law should be used as an aid to interpret Canadian law. The Court came to the following compromise position, falling a little short of the Convention: "the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them".

Refugees applying for family reunification routinely wait months or years before children and parents are reunited. Many of the delays are caused by slow communications (particularly in parts of the world, notably Africa, where Canada has few immigration posts) and by demands for proof of family relationship (at some visa posts, refugee are routinely required to undergo DNA testing, at enormous expense and causing delays). For some refugees who face particular barriers to permanent residence (for example, because of the ID requirement) the wait is many years or even indefinite.

For example: A woman fled persecution in the Democratic Republic of Congo (Zaire), leaving behind her husband and two young children. She reached Canada where she was recognized as a refugee. Meanwhile, her husband, who due to persecution had had to move from their home to the capital city, Kinshasa, grew sick and died. The two young children were left in the care of neighbours, since any relatives were far away. The mother in Canada anxiously pleaded for urgent measures to bring her children quickly to Canada, but according to an Immigration Canada official this is not the kind of situation that merits urgent attention.

In 1995, Canada was examined by the UN Committee on the Rights of the Child. In its Concluding observations, under Principal subjects of concern, the Committee stated at Paragraph 13:
 

The Committee recognizes the efforts made by Canada for many years in accepting a large number of refugees and immigrants. Nevertheless, the Committee regrets that the principles of non-discrimination, of the best interests of the child and of the respect for the views of the child have not always been given adequate weight by administrative bodies dealing with the situation of refugees or immigrants children. It is particularly worried by the resort by immigration officials to measures of deprivation of liberty of children for security or other related purposes and by the insufficient measures aimed at family reunification with a view to ensure that it is dealt [with] in a positive, humane and expeditious manner. The Committee specifically regrets the delays in dealing with the reunification of the family in cases where one or more members of the family have been considered eligible for refugee status in Canada as well as cases where refugee or immigrant children born in Canada may be separated from their parents facing a deportation order.

The Covenant on Economic, Social and Cultural Rights, adopted in 1966, forms a pair with the Covenant on Civil and Political Rights that together outline the basic elements of states' human rights obligations. While Western human rights thinking has tended to give precedence to civil and political rights, this covenant serves to grant equal weight to economic, social and cultural rights. The UN Committee on Economic, Social and Cultural Rights examines States on their compliance with the covenant. Canada was last examined in November 1998.
 
 

WHERE CANADA FALLS SHORT:

Many of the key rights outlined in the Covenant are dependent in Canada on immigration status. Convention refugees who have not yet been given permanent residence, refugee claimants awaiting determination, refused refugee claimants seeking judicial review of the negative determination or a review on the risks of return, people under a removal order but who have not been removed because of the human rights situation in the country of origin, as well as many others without permanent immigration status in Canada, are discriminated against because of their immigration status (or lack of status), in regard to their access to many of the rights in the Covenant.

For example: Fatima is a young Somali woman who was recognized as a Convention refugee in Canada. Because her identity documents were not considered "satisfactory" (there is no government in Somalia to issue documents) she cannot get her permanent residence. Despite the fact that she graduated with honors from high school, Fatima has not been able to go to university, since Convention Refugees are not eligible for loans and bursaries.

The UN Committee on Economic, Social and Cultural Rights examined Canada on its compliance with the Covenant in November 1998. In its Concluding Observations (December 1998) the Committee listed among Principal subjects of concern:
 

Para. 37. The Committee views with concern the plight of thousands of "Convention refugees" in Canada, who cannot be given permanent resident status for a number of reasons, including the lack of identity documents, and who cannot be reunited with their families for a period of five years.

Para. 39. The Committee is concerned that the loan programmes for post-secondary education are available only to Canadian citizens and permanent residents and that recognized refugees who do not have permanent residence status, as well as asylum seekers, are ineligible for these loan programmes...

• The Immigration Act requires anyone without permanent status to obtain a student authorization to attend school and does not allow certain categories of people to be granted student authorization. As a result, children of refugee claimants awaiting an eligibility determination, children of refused refugee claimants and children of undocumented migrants have been denied access to even primary education by some local authorities (even though provincial legislation may, in direct conflict with the federal Immigration Act, order that all school aged children be given access to education).

This document highlights only some of the ways in which Canada fails to live up to its international obligations towards refugees and other non-citizens. The Canadian Council for Refugees and the Inter-Church Committee for Refugees have recently produced joint submissions on Canada's compliance with the covenants:

Non-Discrimination in Economic and Social Rights for Uprooted People.  Submission with Respect to the Examination of Canada, November 1998, prepared by the Canadian Council for Refugees and the Inter-Church Committee for Refugees, July 1998
 

Submission to UN Committee on Human Rights in preparation for the examination of Canada on its compliance with the International Covenant on Civil and Political Rights, prepared by the Canadian Council for Refugees and the Inter-Church Committee for Refugees, March 1999
 

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