INTRODUCTION

Processing at Canada's visa posts overseas has for many years been a matter of serious concern to the Canadian Council for Refugees. While some refugees are quickly, efficiently and sympathetically processed for resettlement in Canada, not all experiences are as happy. Our members regularly report on problems encountered in the areas of access to visa offices, treatment of individuals, processing times and variations in standards between visa posts.

In January 1995, in the context of a discussion about anti-racism, the Overseas Protection and Sponsorship Working Group of the CCR decided to conduct a study of visa posts, with a view to exploring the possibility of systemic racism in access to visa posts. A survey was conducted in 1995 and the beginning of 1996 in which individuals, both refugees and refugee workers, in Canada and overseas, were invited to report on their experiences of Canada's visa posts.

The survey results need to be viewed in the context of the many reports that have over the years raised similar concerns. In 1987 the Canadian Jewish Congress report, Race Relations and the Law, written by Tannis Cohen, argued in its chapter on Immigration (Chapter 9) that the unequal distribution of visa posts amounts to systemic racism. Five years later, the CCR Task Force on Overseas Protection (1992) reported that it heard one horror story after another and concluded that the "failings are institutional, endemic, structural. The problems will not go away until the system itself changes" (page 2). Refugee Family Reunification, the report of the CCR Task Force on family reunification published in 1995, drew attention again to the wide-ranging problems with overseas processing and highlighted the particular difficulties associated with the unequal distribution of the visa officers.

In June 1995 the Standing Committee on Citizenship and Immigration issued its report Refugees, Immigration and Gender. It reviewed the systemic barriers to the selection of women refugees for resettlement in Canada, including the barriers to access to the visa officers. Recommendation 14 states "All aspects of the process of selecting refugees abroad should be reviewed from a gender perspective in order to remove the direct and indirect barriers within Citizenship and Immigration Canada's control that may impede women from being selected for resettlement in Canada".

The Immigration Department itself has gone some way towards acknowledging the need for examination and improvement in the area of processing. Working Group #3, a joint governmental and non-governmental committee formed as part of the 1994 Immigration Consultations, noted in relation to resettlement from abroad that Canada "needs to critically assess and improve its performance in a number of areas including: implementation of programs; processing times; due process, i.e. ensuring the equitable treatment of refugee cases by Canada's visa posts..." The November 15, 1994 discussion draft Project Report on the Private Sponsorship of Refugees acknowledges that much of the sponsoring community's criticism of the program is aimed at the overseas part of processing and notes that "complaints are wide-ranging: refusal rates that are too high; processing times that are too slow; inconsistency of practices among offices and regions; lack of response to inquiries". Max Brem's March 1995 report Refugee Processing Abroad: Review of "Best Practices" affirms a number of the concerns raised by NGOs over many years and attempts to offer constructive suggestions in order to improve refugee selection, processing and related issues.

Despite the persistent concerns, overseas processing remains an underreported area. Obtaining a comprehensive, accurate and up-to-date picture of what happens to refugees at Canada's overseas visa posts is extremely difficult. The very fact that the posts are overseas means that they cannot be subject to the close scrutiny afforded to in-Canada processes. The information is scattered around the world. Refugees, because of their vulnerability, are among those least likely to lodge complaints. Those who are accepted and resettle in Canada are on balance likely to have had better experiences than those who were rejected, whose complaints, if they have them, will probably never reach the NGOs.

Through this modest survey, the Canadian Council for Refugees has attempted to gather together some information on people's experiences of visa posts, good and bad. The collection is non-systematic and information dates quickly as practices, personnel and circumstances change. Nevertheless, the results, which go significantly beyond the initial concern over access and cover experiences of family sponsorship as well as refugee resettlement, suggest wide variations in perceptions and experiences and point to some serious problems.

A number of key themes emerge:

• access to some visa posts is severely limited.
• there are concerns about the locally-engaged staff at some posts.
• decisions sometimes appear to be arbitrary.
• there are concerns that treatment of refugees is sometimes biased by considerations such as their colour, their wealth or their professional or educational background.
• there are considerable delays, often apparently caused by overwork.
• poor communication often leaves refugees and family members in a state of anxious uncertainty.
• in some cases visa officers appear to be insensitive.

The apparent dramatic inconsistency in standards between visa posts and between individual visa officers calls for a more radical reform than the tinkering undertaken by the government in recent years. The behaviour of local staff in some offices is also of concern and may point to the need for better selection, training and monitoring.

The Immigration Department may also wish to follow up on this survey by conducting its own more scientific study of access at visa posts, to confirm or correct the claims made here. The CCR for its part has committed itself to ongoing monitoring of processing at visa posts.

Canada prides itself on humanitarianism and its visa officers work under difficult circumstances to identify, screen and process refugees. Sometimes the treatment of refugees is of a very high standard and the visa officers earn for Canada its good reputation. This is not however always the case. The Canadian Council for Refugees looks forward to the day when refugees will consistently be met at Canadian visa posts with efficiency, fairness and respect.

COMMENTS BY CITY/VISA POST

Bangkok, Thailand

• No specific complaints or problems that refugees and their families have encountered at the Canadian Embassy concerning maltreatment. However, some have mentioned that they feel unsure whether or not their documents are passed on to the appropriate person in the reception. Most refugees say that they have had a warm reception at the visa post when they go in for their interview and that they can approach the immigration officers with any queries. Processing of applications has been speedy (only two weeks from date of application to get an interview in some cases). Interview questions are similar to those of their UNHCR interviews or other embassies screening for resettlement.
• It is easy to access the Embassy, which is in an office tower, but you will not be able to pass the reception unless you have an appointment. Phone access is easier as there are direct lines to visa officers. Most refugees, which are predominantly Burmese, do not attempt going to the embassy unless they have already arranged for an appointment, however.
• The problem in Thailand is that the Burmese refugees are not considered refugees by the Thai authorities but "illegal migrants". Since they are confined to the so-called "safe area" camps outside Bangkok, they encounter problems when attempting to transfer from the camp to Bangkok for the processing of papers. The safe areas are set up by the Thai government for the Burmese who are recognized "persons of concern" to the UNHCR. Furthermore, they do not feel they can trust the Ministry of Interior official in the safe area to forward their papers to the Embassy. The transportation problems seem to be the principal problem for the refugees. They often ask for assistance for transportation in and around Bangkok from the safe areas to process their papers. Some refugees are currently detained in the Special Detention Center where access is difficult even for the embassies. There is always a high risk for the Burmese refugees of being arrested or put in detention. Many times, the departure to Canada can be delayed because of an arrest just before leaving the country. The main delays are thus not due to Canadian processing but rather to Thai exit permits. Some refugees argue that they feel the Embassy is watched by SLORC agents who tip off the Thai authorities. There are no confirmed accounts of this however and the Burmese students are understandably paranoid.
• A number of very friendly officials. One official, found to be nice by one refugee, was said to be impolite, cynical and lacking in understanding of geography and politics by another.
• The receptionist was sometimes unfriendly.
• A Cambodian refugee family in Vietnam had to have three medical exams because they kept expiring before they were issued visas. This cost them a lot of money because each time they had to pay the doctor a bribe in order to receive a "clean" medical report. They feel that the delays were because they were in Vietnam rather than Bangkok (where the visa post is) and were therefore given less priority.
• A Laotian refugee family applied for sponsorship in 1990 and finally arrived in November 1994.

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Kuala Lumpur, Malaysia

• There have been problems regarding treatment by a particular visa officer who is currently working at the New Delhi visa post. The official explanation while in Kuala Lumpur was that he had a very loud voice and was abrasive. One example is of a Vietnamese Canadian who was continually refused an appointment by his Malaysian secretary. When he finally got an appointment, this visa officer would not let his companion, a Canadian working for CIDA, in and was also yelling at him in a very loud voice.

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Singapore

• The visa officers always answer questions thoroughly and promptly.

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Beijing, China

• A businessman continually tried to get into the Canadian Embassy in order to join his wife already in Newfoundland. Chinese staff refused to let him in and he was later caught and jailed for three years by the Chinese government for having provided food money for the students at Tiananmen Square. There are more examples of denial of access to the Embassy by the local Chinese staff who rule who gets appointments and gets in. It is a known fact that treatment in the American and British visa posts is superior.

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New Delhi, India

• Even if an applicant has a sponsor, they may encounter difficulties. The Canadian Embassy in India did not even have the case of a person who already had a sponsor.
• A spousal application was refused for no reason. The sponsor was a permanent resident originally from Somalia whose wife had fled to India. She was asked humiliating questions by the visa office. The sponsor was himself arrested by the Indian authorities who claimed that his Canadian-issued travel document was fraudulent and he had to pay a bribe in order to be released. Once at the Canadian visa office, he had to submit a new application. His wife has not yet been contacted by the visa office and this incident took place in February 1995.

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Dacca, Bangladesh

• The sponsorship application for a new wife (by arranged marriage) was turned down. A complaint was written and the application was eventually processed. Affluence is the #1 facilitator. It is becoming increasingly difficult for families to sponsor their relatives. Also, to be white and English-speaking is definitely an advantage as opposed to being dark and unable to speak English.

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Islamabad, Pakistan

• Some visa officers act like local potentates. One young, unmarried woman applying through family class in Peshawar was asked to stay behind, while her family went to Canada. The visa officer justified this by asking:"Why don't you get married?" Bribery is another problem.
• The Canadian Embassy had asked a family to verify that they did not have a criminal record. In order to do so, the family had to pay a bribe to the Pakistani police. They were advised to see a specific doctor in Karachi which cost them 500 rupees and for the medical examination, they had to pay an additional $2000 US.
• Convention refugees who are sponsored privately and whose immigration processes are completed are not able to go to Canada right away. One example is of an Afghan family sponsored by a group of churches, in which all the family members were cleared except for the mother who was allowed to come only if she had a Minister's Permit. This was approved in April 1995, but the necessary arrangements that are to be made by the visa office have not yet been made for the family to go to Canada. The visa office has not responded to various telex and fax messages regarding this delay.
• There is a guard post outside the Embassy and without an appointment you will not get past the gate. Calls are screened by locally hired staff and unless you sound Canadian or have the name of a visa officer, you will have difficulties arranging an appointment. Refugee processing times are long, due to the large amount of immigration applications. Faxes to the Embassy have not been responded to at all.
• Recently they started accepting many cases of Afghans, including families, although until about 9 months ago the results were nearly 100% negative. There are cases from 1990 and 1991 for which no response has ever been received.
• "Sophisticated" families get responses (e.g. those that speak English or French). Others don't seem to get through.
• In a case of a man dying in Canada whose wife was in Pakistan things went very well: she was well received and a Minister's Permit was issued.
• Long delays in processing visas. In response to inquiries about the status of visa applications, no information is given - applicants are simply told to wait for news. One reason given for the long delay was the absence of a visa officer who had yet to be replaced.
• The visa post was very accessible: there were always a lot of people outside the office, but if you had an appointment it was very easy to get in. The visa officers were pleasant and understood the situation in Afghanistan very well. They were sensitive to this refugee's situation. The interview lasted about 10 minutes and not many questions were asked. The interpreter was quite nice. Processing was delayed because she did not bribe the doctor when she first had her medical examination and she therefore failed it. The second time she bribed the doctor and passed her medical.

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Riyadh

• Somali woman in Yemen refused. Interview lasted less than 30 minutes, 20 minutes of which were on mundane matters not related to the basis of the claim. She brought an interpreter, but the officer said she spoke well, so she didn't use the interpreter and perhaps didn't get her points across as well as she might have done. Letter of refusal notes she didn't have a paper from UNHCR, but the visa officer didn't mention this to her. There were reasons for the lack of UNHCR identification (role of UNHCR in Yemen, fact that her situation only became difficult when she was widowed - while 8 months pregnant). She was also rejected on admissibility. She has 6 kids, but she had worked in Yemen and had good support in Canada.
• An Ethiopian woman was refused. Her father was a minister in former government and was murdered. She was hidden by friends. She swore on the Bible that she would tell no one who had hidden her. In the interview she was asked the name and address of where she was hidden. She refused to say, and was badgered by the officer to say. The interpreter agreed that she had been badgered. The letter of refusal says she refused to comply with request for information.
• Professional Somalis (doctors, engineers) seem to be processed quickly and efficiently.

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Ankara, Turkey

• The visa post works well, but applicants who have been sponsored and accepted may face difficulties from the Turkish authorities who demand bribes. UN office processing is protected but not the Canadian Visa offices.
• All the Canadian officers were friendly, polite and professional. There were toys for the children during the interview.
• The waiting time is too long (one year).
• A female Iranian refugee in Turkey was recently denied access to reception area of the Embassy in Ankara. She was hoping to get an IMM-008. She was questioned by locally hired security staff as to why she had come to the Embassy. She left without being allowed in as she did not want to reveal her reasons for being there. Later she phoned a friend in Canada to ask how she could get into the Embassy as her Turkish visa was about to expire and she fears for her life if she returns to Iran. As a result a desk officer in Hull who deals was contacted. He arranged to have an IMM-008 mailed to her. She received it and returned to the Embassy. This time she got into the reception area where the locally hired receptionist, in a crowded reception area, asked where she had go the forms (as they were not being given out) and why she wanted to emigrate to Canada and what her problem in Turkey was etc etc. The receptionist eventually took the form but the Iranian woman was not at all sure it would be passed on to the visa officers.

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Damascus, Syria

• There is a 99.9% rejection rate at the visa post in Damascus. Applications for visiting Canada are always rejected and for applications for sponsorship, there is no chance of appeal if the application has been rejected the first time. There is no opportunity given to explain situations. Also, there is systematic racism in the immigration processing, not from the Canadian staff but from local staff and especially the Syrian Arab clerks, who have openly asked for bribes. Translators tend not to be accurate when interpreting what the applicant is telling them. For Assyrians/Christians, a Muslim translator will be a disadvantage due to the element of pre-judgments.
• The visa post has its own peculiar reading of the law. They put a lot of emphasis on economic integration. They seem to be slow at picking up changes in policy in Canada (e.g. they continue to ask for sponsorship papers for refugees' immediate families). They refuse refugee families on economic criteria. Their caseload must be large because processing takes for ever.
• One refugee sponsorship went well.
• An Afghani living in Canada went to Iran to marry his bribe. He returned to Canada after a month and applied to sponsor his wife. It turned out that his wife was pregnant and the baby was born before the processing was completed. The father contacted the visa post in Damascus and was told that minimum processing time was 6 months, maximum one and a half years. He was also told he would have to reapply because he had to apply for his son, which he did. Subsequently, he was told that he had to get his marriage certificate certified by the Iranian Foreign Office (he wondered why he couldn't have been told this at the beginning). He decided that the only way to make things happen would be to go to Iran himself. The Iranian Foreign Office insisted he produce proof of his Afghan citizenship. The Afghan Embassy wouldn't give it to him because he had fled as a refugee. He had to bribe them to give him the paper to get the certification from the Foreign Office, which he took himself to Damascus because he didn't trust the process. His wife and baby were issued visas. The baby was two years old on arrival in Canada.
• In another similar case a man in Canada sponsored his wife in Iran and was also told he need certification of his marriage certificate. He called on his brother-in-law in Iran to make the arrangements, involving visiting the Afghan Embassy, getting witnesses to swear before a notary, etc. The sponsor had lots of documentation and wedding photos which he tried to submit in Canada but he was told it had to be done in Iran. He has been waiting 18 months and his wife still has not arrived.

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Teheran, Iran

• The Canadian Embassy is overcrowded. The line up at 5 am is 2-3 blocks long and those that can afford to pay, jump the queue. Genuine visitors to Canada are deprived of visas. The reputation of the Canadian Embassy is damaged. Staff employed by the Embassy do not like to deal with people of colour and preference is given to wealthy people.

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Nairobi, Kenya

• Excessive delays in the processing of family class sponsorships. Bona fide marriages are questioned which has caused unnecessary delays and complications, some of which have been pending for over three years. There are also problems in obtaining visitor visas for parents wishing to visit Canada for a short time only.
• The Embassy is in an office tower and you will need an appointment to get past the guard post in the hallway. It is impossible to see a visa officer without a UNHCR or NGO referral. Furthermore, security background checks tend to drag on without explanation. One applicant has had three interviews in almost two years and has still not been informed on whether he will be admitted to Canada or not. Many Sudanese refugees are accused of involvement in the SPLA. Security background checks for the region are done through the post in Harare. There must be quicker resolutions to these cases with explanations for the refusal of visas so that appeals can be launched if warranted. The Nairobi office is overwhelmed since the Rwanda crisis and there is a desperate need of more visa officers and of another visa post in East Africa in order to split the regional responsibilities.
• Access to the visa post is very difficult. For a long time the post wouldn't accept Somalis as refugees. A Canadian visiting the post was shocked to hear the attitudes of some officials who said the Somalis aren't refugees, they are abusers.
• A woman in Ottawa was sponsoring her parents. They were accepted 1 1/2 years ago. They passed the interview and medical test. Then they were told to wait to be contacted. What is really difficult is not being told why they are waiting. Efforts by government to improve processing seemed to lead to swifter processing for Somalis for a period of about 7 months (end 92 to beginning 93). It has deteriorated again.
• Processing is extremely slow. A Rwandan family was being sponsored before the April 1994 massacres began. Most of the family was killed but one woman escaped and came to Nairobi. She is still waiting. The visa post claims it can't contact Somalis but their relatives here are able to reach them. Sponsorships take 5 years, so there is no point trying.
• A Somali woman in Ethiopia, 24 years old, single, was refused on successful establishment criterion. It was held against her that she wasn't working, but she didn't have the opportunity where she was.
• The situation is particularly difficult for Somalis in Djibouti. You need to get a UNHCR approval which is very difficult.
• Communications is poor. Papers get lost.
• Good work done in regard to family reunification.
• Excellent experience with the visa officers who are open and forthcoming about individual cases and about general trends in the region. They are also quick to respond to inquiries.
• In a few cases background checks are very difficult to deal with and can take a year before a decision is reached.
• The current staff is courteous, informative and very helpful.
• Out of 6 refugees who were processed through Nairobi, 4 found the officers friendly, 2 said the Kenyans working there were very unfriendly.
• There is a problem with the background checks. People who are innocent are accused of being criminals, and others who are criminals are being accepted. One person committed suicide because of this.
• It takes much too long to get results of the medical examination.
• Medical files are not being kept confidential: receptionists know about the results.
• Service was fast, correct and well-organized.
• Officers were always on time and well-organized.
• Friendly officers immediately give assistance.
• Officers gave the impression that one was appreciated and believed.
• The receptionists, who are the first people you meet, are cold people.
• [Comments from one person processed in the Sudan] Officers always friendly and sympathetic and experienced. The Sudanese employees were very tired and therefore impatient. The filing system was very poor and files went missing (between 1985 and 1990). This applicant did not get an answer. It worked out in the end, but was very long.

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Cairo, Egypt

• Cairo visa officers should do Sudan but they don't go often enough. Sponsors need to know when the officers will go.
• A representative from the Canadian Embassy in Cairo on a visit to Sudan returned to Cairo a week in advance, allegedly for security reasons, leaving a large number of Sudanese refugees who had already been scheduled for interviews.
• They don't accept refugees. It's hopeless.

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Abidjan, Ivory Coast

• A Liberian "woman at risk" was sponsored to go to Newfoundland in September 1994 but her case was not examined until April 1995. In June 1995, St John's Immigration was informed that the woman could not be found.
• They seem to put all their energies into looking for something to use against the case.

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Pretoria, South Africa

• Bureaucracy and delays in processing visa applications. However, all applicants are treated adequately and professionally once "in the system".
• There is a particular visa officer who is very unresponsive. She has delayed one arrival simply by not issuing a visa quickly enough after the IOM ticket was arranged and never responds to fax inquiries.
• Good Immigration staff, both local and Canadian. Always helpful, responsive and proactive. One individual in particular.

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Moscow, Russia

• Once people are seen by a visa officer, treatment is fair. However, some local staff are openly hostile to clients and tend to be anti-semitic and corrupt and make remarks and ask for money. Some of the hatred is inbred and perhaps the hiring of local staff is done without much cultural sensitivity. It would probably be better to hire more educated people at the local level.
• Access is very difficult. A couple who came to Canada as claimants had a 3-year-old daughter in Siberia. There were long delays in her processing and the visa post insisted on her being brought all the way to Moscow. In another case, a young sponsored refugee arrived with his papers saying that the refugee sponsorship was for 2 years, but the sponsoring group had never been asked for this and it wasn't clear anyway what were the special circumstances that demanded a 2 year sponsorship. Several attempts to get an explanation were made without result. Finally they responded that it was an error, but no correction has been made.
• An Afghan, accepted as a privately sponsored refugee, was told that he had to get a paper from the police station as part of the security clearance. Because he was illegally in Moscow, the police refused to give any paper, unless he paid a bribe of US$1,000, later reduced to $700. He went back to the Canadian embassy to explain his predicament, but was simply told that he should get a Russian visa (which was completely impossible). Finally, through a cousin, he managed to find a police officer in another district who gave the paper for under a $100. He has now completed all the formalities and is waiting for a visa. It has been over a year since the sponsorship was submitted. He feels he is living like a prisoner. He cannot work. Because he is not legally in Russia, police will stop him on the street, take him to the police station and take his money away. He therefore avoids going out as much as possible.
• An Afghan refugee family has been waiting more than 2 years for their visa. They were accepted: the father of the family is a highly qualified engineer and was told he was good for Canada. They have received a letter telling them not to contact the Embassy and that the process will be slower if they do. They are not legally in Moscow, they cannot work, they do not receive any money from the UNHCR. Another Afghan family was processed in 9 months, so there is a sense that it is all a lottery.

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Kiev, Ukraine

• Ukrainian visa officers treat Jews differently. There are applicants who pass the criteria for immigration and yet are rejected. Decisions are made on a very narrow basis. Applications are rejected 50% of the time.

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London, UK

• A Turkish Kurd was refused entry to Canada to visit his dying brother, whereas a wealthy cousin with a British citizenship of 10 years was allowed. Another problem is access to the visa post - faxes are unanswered and you cannot get through by phone. Difficulties in getting hold of anyone but the receptionists. Also, people have been denied permission to visit Canada to see dying family members. In one particular case, a visa officer justified this denial by saying that the family member was "dying anyway, so why bother?".

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Paris

• They return your phone calls.
• In one case they called up someone and accused her of lying, but afterwards the lawyer followed up and it turned out that they had got some files mixed up.
• Algerians presenting their case are very badly treated. They seem to have caught the French phobia of Algerians.
• Probably they have a too heavy caseload. One medical clearance was waiting for over a year, until the medical was out of date.

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Netherlands

• Officers were friendly. Everything about the service was good.

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Rome

• The visa post was quite accessible - there were always many people outside the office but if you had an appointment there was no problem in getting in. Correspondence with the post through mail worked well. Visa officers overall were very helpful and nice. The interview lasted about 15 minutes. Questions were asked about the situation in Bosnia, the danger and the persecution. The refugee was also asked about her working experience, her family in Bosnia and her sister in Montreal. Questions were all quite general. She had already filled out a detailed form describing her situation.
• Everyone was very nice, but officers lose their files which leaves people waiting and hoping in vain (this person's first application was lost). Waiting times are too long (5 years) before you can get an appointment. They are very busy but treat people well, and are patient even with people that are making trouble.

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Belgrade, Yugoslavia

• During the Bulgarian exodus years, there were many complaints regarding the differences in treatment of Bulgarians and Yugoslavs, where Yugoslavs were favoured.
• There is a priority to select couples who are in a mixed marriage.
• Great assistance from a visa officer in facilitating an excluded Bulgarian's return to his fiancée in Canada.
• Things go well.

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Vienna, Austria

• A woman who had been raped and was emotionally disturbed was processed very quickly: she arrived in 4 months. The visa officers there have been sensitized.

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Zagreb, Croatia

• Applications do not move and reasons are found for not doing the processing.

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Guatemala

• Posts in Central America are good and Guatemala especially.
• Cases are treated expeditiously. They have a good understanding of the complexity of the situation. Willing to meet with sponsoring groups. The situation in Guatemala is in any case extraordinary. The people at the Embassy are themselves at risk. They want to help.

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Port-au-Prince, Haïti

• Very good coordination during the crisis.

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New York

• A Rwandan woman who was turned back at the border when she attempted to make a refugee claim was treated very sensitively by the visa officer, accepted and processed quickly.

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RESETTLEMENT, DURABLE SOLUTIONS AND SIGNATORY COUNTRIES

POLICY POSITION

30 June 2004

A. THE CONTEXT

A number of years ago the Canadian governmnent identified the need to clarify and formalize its policy on the resettlement of refugees "located in signatory countries which are considered to have fair and effective protection regimes." The Canadian Council for Refugees, for its part, adopted a resolution in December 1999 drawing attention to the inconsistency of interpretation of "durable solution" and calling for an interpretation that specified that temporary protection and eligibility for future refugee determination do not constitute a "durable solution."

Since then, the government developed an Operations Memorandum (OM) on "Processing in Signatory Countries" (2001), later superceded by sections incorporated into OP5, a chapter of the immigration manual. The CCR developed a position paper in 2000 and provided comments on the draft OM and the draft OP5.

Despite these clarifications of positions and exchanges of views, the matter remains in 2004 one that is both confused and controversial. For private sponsors wishing to offer a permanent home to refugees, it is unclear which refugees Citizenship and Immigration Canada considers eligible for resettlement to Canada. Moreover, sponsors query the legality and moral legitimacy of decisions finding refugees ineligible based on the country in which they find themselves, when the refugees do not, in fact, enjoy a durable solution.

This paper is in part a revision of the CCR's 2000 policy position.

B. THE INTERNATIONAL FRAMEWORK

Resettlement is recognized internationally as having two principal functions:

• To offer protection to refugees.
• To offer a durable solution to refugees.

In addition, resettlement can be used to ensure a more equitable sharing of responsibilities among states, through the resettlement of refugees from a state hosting many refugees to a state hosting fewer refugees.

The UNHCR promotes three durable solutions:

(1) voluntary repatriation

(2) local integration in the country of first asylum

(3) resettlement

C. THE CANADIAN LEGAL FRAMEWORK

Canadian law adopts the "durable solution" concept, limiting the possibility of resettlement to Canada to refugees who don't have access to another durable solution.

The Immigration and Refugee Protection Regulations require that Convention Refugees Abroad and Humanitarian-protected Persons Abroad be persons:

"in respect of whom there is no reasonable prospect, within a reasonable period, of a durable solution in a country other than Canada, namely (i) voluntary repatriation or resettlement in their country of nationality or habitual residence, or (ii) resettlement or an offer of resettlement in another country." (139(1)(d)).

The language of the regulation is somewhat surprising: it does not refer to the possibility of local integration; on the other hand, it refers to "resettlement" in the country of origin, as an alternative to voluntary repatriation.

D. CANADIAN GOVERNMENT POLICY

The Canadian government's policy on the resettlement of refugees "located in signatory countries which are considered to have fair and effective protection regimes" is articulated in OP5, Overseas Selection and Processing of Convention Refuges Abroad Class and Members of the Humanitarian-protected Persons Abroad Class, a chapter of the Immigration Manual.

Section 7.2 is entitled: "Countries signatory to the Convention or the Protocol". The following extract explains the basic position adopted:

Any person who wishes to apply for assessment as a Convention refugee abroad, or as a member of an HPC class in signatory countries, may apply in the specified manner. There is no basis for refusing to consider an application simply because the person made the application in a signatory country.

In assessing applications from persons located in signatory countries with "fair and effective protection regimes", the officer will need to determine whether the person could find a durable solution in that country.

[...] There is no readily available definition of "fair and effective protection regime." However, both the Convention and the Protocol establish fundamental rights for refugees, such as non-refoulement and asylum, as well as particular rights and standards of treatment. Therefore, what constitutes a "fair and effective protection regime" is a question of fact to be determined on the basis of the conditions existing in the country in question at the time an application is assessed.

The section goes on to provide questions that officers could ask in making a determination, as well as a chart outlining what the officer might decide, depending on whether the applicant has or hasn't applied for protection, and whether the application is still in process or has been refused, accepted or withdrawn.

Another relevant section of the manual is 13.2, Ensuring applicant does not have another durable solution. This provides the following advice on local integration:

In assessing if local integration has taken place, the best measure is the implementation of the rights recognized in the 1951 Convention and other basic human and civil rights which include

• protection from refoulement;
• the right to seek employment;
• the right of children to education;
• the right to leave and to return to the asylum country;
• the right to seek permanent residence status and citizenship in the future (in certain countries only); and
• the right to marry, to practice religion, to own property, to access social services (housing, medical care, etc.)

The section goes on to say that the absence of one of these rights does not automatically mean that there is not a durable solution, and proposes a series of questions that could be asked.

The section also gives advice on "What is a reasonable period of time?":

The "reasonableness" of any time period should be considered within the context of the individual's particular situation. If the civil and human rights of the applicant are respected in the country where they are currently living, a reasonable period of time may be longer than that for an individual who is not permitted to work, for example. Again, this is a question of fact to be determined by the officer.

Once again, a series of questions is proposed to assist officers in their determination.

E.  SIGNATORY COUNTRIES

CIC's policy focuses on "signatory countries." It is important to note that a very large number of states are parties to the 1951 Convention, to the 1967 Protocol or to both. These states include most of Africa, a region from which CIC regularly aims to resettle a significant proportion of government-assisted refugees.

The mere fact that a country has signed the Convention does not mean that it will provide adequate protection.(1) Even less can it be assumed that all a refugee's needs will be met and rights respected and that a durable solution will thus be available. Conversely, states that are not signatory may offer refugees protection and a durable solution.(2)

The distinction made in OP5 between resettlement out of signatory and non-signatory countries has no basis in international convention or Canadian law. In practice, it is not a distinction that guides the Canadian government in choosing the countries from which it will principally resettle.

It is an unhelpful distinction in that it obscures the fundamental questions that need to be asked: is the refugee protected? Does the refugee have a durable solution?

Where the notion of "signatory country" may be useful is in maintaining (as in OP5) the rebuttable presumption that a refugee in a non-signatory country does not have a durable solution.

F.  FAIR AND EFFECTIVE PROTECTION REGIMES

The Canadian policy implicitly accepts the limited usefulness of signatory country status by going on to address the sub-category of "signatory countries with 'fair and effective protection regimes'." If assessing applications from refugees in such countries, OP5 tells us, officers "will need to determine whether the person could find a durable solution in that country."

The implication of the manual is that there is no need to consider the availability of local integration in a country that does not have a "fair and effective protection regime." However, if the country of asylum does have a "fair and effective protection regime," local integration must be considered.

As noted above, according to Canadian law, refugees are not eligible for resettlement to Canada if they have a "reasonable prospect, within a reasonable period, of a durable solution in a country other than Canada." In the interests of efficiency, it is entirely reasonable to narrow down the cases in which the officer needs to make an individual determination of whether or not the durable solution of local integration is available to an applicant. If the refugee is in a country where local integration is a reasonable prospect, consideration will need to be given to the availability of that durable solution for the applicant.

However, rather than using the regulations' language of "durable solutions", the manual asks about "fair and effective protection regimes." What does this phrase mean? The manual informs us that "[t]here is no readily available definition of 'fair and effective protection regime.'" Instead, the manual invites officers to refer to the rights established in the Convention and Protocol.

One might question the usefulness of introducing a new concept that is not part of the regulations and does not have a definition. Furthermore, the manual does not greatly assist the reader in understanding which countries will be found to have a "fair and effective protection regime." After referring officers to the Convention and Protocol, the manual proposes a series of questions which do not obviously refer to the Convention or Protocol. For example, the officer might ask:

• "Is access to the protection regime granted in a non-arbitrary and procedurally fair way?"
• "Do additional 'refugee-like' classes exist such as the Canadian humanitarian-protected persons abroad classes?
• "Does the system provide for a durable solution within a reasonable period of time?"

It is not clear how the questions proposed correspond to the standards in the Convention and Protocol. What determination will the officer arrive at if the questions above receive the answer "yes", but the country does not respect provisions in the Convention? What if the answer to some of the questions is "no"? For example, one question asks "[i]s the individual's personal security at risk, or is there a risk of arrest, detention or refoulement?" Does this mean that countries that detain some asylum seekers mandatorily or on a discriminatory basis do not have a "fair and effective protection regime"? Another question refers to the interpretation of the Convention Refugee definition and the existence of "the concepts of non-state persecution, gender guidelines, sexual orientation." Does this mean that a country that does not recognize refugees fleeing persecution based on sexual orientation does not have a "fair and effective protection regime"? Is it more like a test where the country has to meet a certain pass mark in order to merit the "fair and effective" designation?

Since the questions listed are only some of the questions that "the officer could ask in making this determination", we must be prepared for the possibility that the officer will decide not to ask these questions but ask others instead.

The lack of clarity makes it very difficult for private sponsors to know in any particular case whether a visa officer is, in any particular case, going to decide that local integration is a possibility. Because it is unclear how countries' protection regimes are being assessed, it is also difficult for sponsors to know what information should be presented to show that a particular applicant does not have a durable solution.

It is worth noting that internationally, including in the UNHCR forum, the concept of "effective protection" is the subject of much debate. There is at present no consensus of what constitutes "effective protection." If in the future there were such a consensus, the concept could be helpful in the context of assessing eligibility for resettlement to Canada.

G.  ASSESSING AN INDIVIDUAL APPLICATION FROM A COUNTRY WITH A "FAIR AND EFFECTIVE PROTECTION REGIME"

The manual rightly acknowledges that a refugee in a country that is considered to have a "fair and effective protection regime" may not have a durable solution and therefore may be eligible for resettlement.

No country can claim a perfect record when it comes to protecting refugees. Even in countries that offer many refugees effective protection, certain refugees, for one reason or another, do not benefit. Either "fair and effective protection regimes" is interpreted in a very strict way and no countries will meet the definition, or it is interpreted in a somewhat loose way, and countries that meet the definition will be found to fail to protect certain refugees.

For example, a refugee fleeing persecution based on sexual orientation may not be able to secure protection in a country that protects many refugees but does not interpret the refugee definition to include persecution based on sexual orientation.

The manual suggests that a refugee in this situation should nevertheless make an application for protection in the country in which they find themselves and would only be considered for resettlement after they had been refused. This could be challenged from the perspective that, if a person's claim is known to be the sort that is routinely refused by the particular country, it is not possible to maintain that the person has a "reasonable prospect, within a reasonable period, of a durable solution."⁽³⁾

H.  DURABLE SOLUTION

One of the disadvantages of the focus in the manual on the concepts of "signatory country" and of "fair and effective protection regimes" is that it tends to obscure the test that is actually in the regulations, namely the availability of a "durable solution". The manual adds to this problem by placing in a completely different section its discussion on durable solutions, including local integration.

In discussing "local integration", the manual proposes that its availability be measured by reference to the rights in the 1951 Convention and other basic human and civil rights (section 13.2, see above, page 3). The manual thus recognizes that refugees who are not threatened by refoulement but who are deprived of such basic rights as work, study, family reunification and travel are clearly still in need of a durable solution.

I.  BASIC HUMAN RIGHTS STANDARDS

The international bill of human rights is made up of the Universal Declaration of Human Rights and the two covenants: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. It is important that the rights in the latter covenant be accorded equal weight. No refugee can be considered to have achieved a durable solution when one of their basic rights is violated.

J.  FAMILY REUNIFICATION

In some cases, privately sponsored applicants have family in Canada, which makes Canada a particularly appropriate place for them to find a durable solution. The UNHCR promotes the principle of family reunification, most actively in the case of nuclear families and where there is a relationship of dependency, but also of other relatives. According to the UNHCR Resettlement Handbook (July 2002), "UNHCR strongly supports the adoption by States of broad and flexible criteria of family reunification with respect to the selection of refugees for resettlement from countries of temporary stay" (IV/22).

Where the applicant has immediate family members in Canada, there may be no durable solution until the family has been reunited. Where the family relationship is not one of the nuclear family (for example, adult siblings), Canada may well be the obvious and logical destination for applicants without a durable solution, especially if the Canadian family members are supporting them financially.

K.  BEST USE OF RESOURCES

Resettlement is a durable solution that is available only to a small minority of the world's refugees. Each year, the government commits itself to resettle only 7,500 government-assisted refugees. While privately sponsored refugees are not assisted with government dollars, government resources are required to process their applications overseas, and each year the government allocates only enough visa office resources to process approximately 3,000 - 3,500 privately sponsored refugees.

Given the limited resources available, does it make sense to limit resettlement to the poorer parts of the world, such as Africa, Asia and Latin America, where the needs of both refugees and host societies are greatest?

Several years ago, when a significant portion of government-assisted refugees were being resettled out of Europe, the Canadian Council for Refugees urged the government to re-orient its refugee targets, particularly in favour of Africa, whose share of the world refugee population was seriously under-represented in its share of the refugees resettled to Canada.

The private sponsorship program, however, differs in an important way from the government-assisted program. Behind most private sponsorship applications there is not a fixed budget that could be spent equally well on any refugee family: there is rather a community of people responding to the identified need of a particular refugee family. If that refugee family is unable to come to Canada to receive the welcome waiting for it, there is probably no money to transfer instead to another equally deserving family. Thus to refuse an application, simply because the applicants are in a relatively wealthy country, though without a durable solution, means reducing the number of refugees who can find a durable solution.

The principles of non-discrimination and of the value of every human being also make it difficult to justify closing the door on a refugee in need, simply because of the country in which the refugee is currently staying. Refoulement is an equally serious rights abuse whether the person is sent back to persecution from a European or an African country.

Finally, Canadian law does not allow an otherwise eligible refugee to be denied resettlement through private sponsorship to Canada simply on the basis of the country in which the refugee is staying, unless the refugee has a durable solution.

L. EXAMPLES

The following are some examples of concrete situations, one of a private sponsorship case, one of a country. They illustrate some of the challenges that come up when the government's policy is put into practice. Further case studies could be usefully pursued, for example of Costa Rica and South Africa.⁽⁴⁾

REFUGEE FAMILY IN GREECE

In February 2003, a private sponsorship application was submitted for a refugee family in Greece. The sponsor included in the application a copy of the Greek Secretary General of the Ministry of Public Order's letter refusing refugee status, as well as a certified English translation of it.

Shortly afterwards the applicants received a letter indicating that their case was refused by the Rome visa post for not having provided "credible evidence to the effect that they have been denied protection". The refusal was made without an interview.

The sponsor intervened with CIC headquarters, pointing out that the visa post had apparently not taken account of the Greek Ministry's refusal letter. This was acknowledged by CIC and the sponsor was told to expect to hear back from the visa post.

Another refusal letter followed in July 2003. The second refusal letter, like the first one, informs the principal applicant that "you currently reside in a country that is a signatory to the Geneva Convention on Refugees, Greece, where you have a reasonable possibility, within a reasonable period of time, of a durable solution by regularizing your residence status through the procedures available to persons in your situation."(5)

The letter does not explain how the applicants, as refused refugee claimants, should regularize their residence status. The applicants themselves are unaware of any procedures available to them.

These are the applicants' circumstances:

• They are restricted to the city of Athens. They are not free to leave Athens.
• They are not allowed to work. Even when such persons without status go to the place where general labourers wait for offers of low paying jobs, someone has to watch for the police and everyone has to be prepared to run if necessary.
• For persons without status, costs of medical treatment are higher. The family has a five year old daughter with Thalassemia Major who requires regular blood transfusions.
• The family's relatives in Canada support their living and health expenses in Greece.

The sponsor believes that the family was wrongly rejected by Greece and they are in fact refugees in need of protection.

GERMANY

In Germany, a large number of asylum seekers, while not deported, are not granted asylum and do not enjoy many basic rights. An example is the situation of Afghans in Germany. A UNHCR memo, dated September 2003, gives an overview of the situation:

• Since 1992, most refugee status determinations for Afghans, if taken at all, were negative. Rejections were generally based on the notion that under German law persecution leading to refugee status would need to come from the state, and that no state controlled Afghanistan. This position was only overturned by the Federal Constitutional Court in August 2000.
• As a result of the legal doctrine operating in Germany, Afghan asylum seekers were in general not recognized as refugees and did not receive adequate protection in Germany.
• Limited protection was granted only through Section 53 (6) of the Aliens Act, giving a temporary stay of deportation.

Persons with a temporary stay of deportation:

• Do not have freedom of movement
• May not work or, if allowed to work, may work no more than 2 hours a day
• Are eligible only for reduced welfare assistance
• Have access only to emergency health care
• Are rarely allowed to pursue higher education

People may remain with only temporary status for long periods (for example, more than 10 years in the case of a Sri Lankan family).

RECOMMENDATION

1.    That CIC abandon the use of concepts of ‘signatory countries’ and ‘fair and effective protection regimes’ and focus its attention on the availability of a durable solution for the individual applicant.

2.   That OP5 be amended to conform to IRPA and to set out that there is no reasonable prospect of a durable solution in all those situations where it has been improperly applied, and in particular, those situations where:

a)    a refugee claim has been made in the country where the person is located and rejected;

b)    the determination of a refugee claim in the country where the person is located is subject to undue delays;

c)    a refugee claim is pending in the country where the person is located and likely to be rejected for the reason that the concept of protection is applied more narrowly by that country than by Canada;

d)    the person has been denied access to the local refugee determination regime because of the person’s own prior irrevocable waiver of the right to access the refugee determination system.

3.    That CIC:

a)    make it clear to sponsors and the applicant when CIC believes that applicants are in a country where local integration may represent a durable solution;

b)    indicate concretely what the proposed durable solution is;

c)    allow the sponsors and the applicant to rebut that presumption.

4.    That the CCR urge its members to litigate failed resettlement cases where ‘signatory country’ was the issue.

FOOTNOTES

1. This is implied in OP5, section 7.2.

2. This point is recognized in OP5, section 7.3 Countries not signatory to the Convention and Protocol.

3. The manual, at page 33, incorrectly refers to the "possibility of a durable solution". The Regulations require that there be a "reasonable prospect," not merely a "possibility" of a durable solution. The Manual should conform to the law.

4. A number of Colombian refugees have taken refuge in Costa Rica. Most have apparently found protection there, but in the opinion of the UNHCR Costa Rica, some are not safe and need resettlement. The Canadian visa post, however, is allegedly not open to receiving any referrals. In South Africa, asylum seekers have access to a refugee determination system, but until November 2003, did not have the right to work until they had received an answer. This left many asylum seekers with no means of earning a living and often supported by family abroad. Because a backlog accumulated, many asylum seekers have waited several years. Despite a general view by the Canadian visa post that applicants have a durable solution in South Africa, some exceptions are made and accepted for resettlement to Canada. It is not however, clear to sponsors what are the factors that make a case exceptional, in the view of the visa post.

5. This is wrong in law, since the Regulations refer to "reasonable prospect", not "reasonable possibility" (IRPR 139(1)(d)).