A well-informed discussion on the refugee determination system is in the
interests of both refugees and Canadians generally. Unfortunately, the
public is too often presented with media reporting on this issue that is
unbalanced and ill-informed. The Globe and Mail’s 16 April 2005 article
“Canada’s welcome mat frayed and unraveling” is a prime example. It
claims to address the “serious flaws” in the system: while itself exemplifying
many of the “serious flaws” in media coverage of the refugee system.
1. Anecdotes don’t always exemplify the process
While anecdotes can sometimes illuminate a problem it is a mistake to assume
that individual cases, especially taken out of context, are necessarily indicative
of a generalized problem. Harjit Singh’s long sojourn in Canada certainly
captures the attention because it is so extraordinary, but the very fact that
it is extraordinary means that it is a bad place to start if your aim is
to understand what ordinarily works or doesn’t work in the refugee system.
2. The refugee claim process is not broken
It is a mistake to start from the premise that the refugee claim system
is broken. In fact, Canada’s system, while it has some serious flaws,
is very solid in its fundamental aspects. It gives claimants a chance
to be heard by a specialized and independent tribunal, usually represented
by a lawyer. The Canadian refugee determination system has earned an
excellent international reputation. An impartial evaluation of the system
should look at what are considered the strengths of the system, something
that is not attempted by the Globe article which seems only interested in
arguments that buttress its starting premise that the system is broken.
3. Refugee determination systems don’t deport
A refugee determination system exists to determine who is a refugee and
who is not. Once the determination system has done its job, the government
may ask claimants found not to be refugees to leave the country (or decide
to allow them to remain in Canada for other reasons). It is a mistake
to assume that there is something wrong with the refugee determination system
if refused claimants are not quickly deported by the government after determination.
The government may decide for compelling reasons not to deport certain claimants
(e.g. if they come from a country where there is a generalized risk) or the
government may be slow getting around to the deportation. Harjit Singh
was refused refugee status relatively soon after he arrived: whatever the
reasons for him not being deported in the subsequent years (and there were
many periods when he was legally deportable), it was not the fault of the
refugee determination system. No matter how efficiently the refugee
determination system functions, it does not deport those found not to be refugees.
4. The refugee determination system needs to make the
Government officials frequently say (as quoted in the Globe and Mail article)
that we need a system “with more finality, that at some point no has to mean
no.” The point sounds reasonable, but it is a mistake to assume that
when the answer is “no” it is always the right answer. A decision that
wrongly finds a person not to be a refugee may lead to the person being sent
back to face persecution, torture or even death. If we care about human
life, this scenario should preoccupy us more than whether claimants who don’t
need our protection stay too long in Canada. In the current refugee
determination system, wrong decisions go uncorrected because the government
has not implemented the Refugee Appeal Division, despite the fact that it
is an integral part of the law passed by Parliament. This is the most
significant flaw in Canada’s refugee determination system, for which Canada
has been criticized by the UN High Commissioner for Refugees and the Inter-American
Commission on Human Rights. Yet, the Globe article only mentions it
5. Canada has international obligations not to deport
people to torture or persecution
Canada’s refugee determination system is not simply a response to a Canadian
whim: it attempts to give life to our international human rights obligations.
The Convention relating the Status of Refugees obliges us (and other countries)
not to deport refugees directly or indirectly to persecution. The Convention
against Torture prohibits us from sending anyone to face a substantial danger
of torture. It is therefore flawed reporting to quote John Manley saying
that “we can meet our obligations by bringing people largely from UNHCR camps
anywhere in the world” without pointing out that John Manley is wrong.
No matter how many refugees we bring from camps (and we could certainly bring
more than we currently do), we have not fulfilled our obligations, unless
we also make sure that we don’t send anyone back to persecution.
6. Interdiction measures prevent refugees from seeking
Measures such as the safe third country agreement, interdiction officers
posted overseas and the imposition of visa requirements prevent refugees fleeing
persecution from reaching safety in Canada. Those most affected are
the poor and those from countries where the human rights violations are the
most serious. The Globe article fails to grasp this essential point:
it congratulates the government on bringing in more of these interdiction
measures, and yet also complains that war-torn countries such as Sudan and
Afghanistan are not among the top nationalities of claimants. The article
also fails to appreciate that interdiction, by its very nature, excludes many
refugees and, by leading indirectly to their return to persecution, represents
a breach of international treaties signed by Canada.
7. Public opinion on refugee claim issues is largely
formed by media
Many Canadians derive most or all of their knowledge of the refugee claim
process from the media. When media reports keep pronouncing the system
broken, it is not surprising that opinion polls show that many Canadians think
it needs fixing. For media to quote those opinion polls as an indication
that the system is broken ignores the role that the media themselves play
in forming those opinions.
8. Misinformation does not contribute to a useful discussion
The Globe article makes many errors of fact, undermining the possibility
of a well-informed discussion. For example:
- Claims pending on 31 December 1988 were dealt with in a separate backlog
process and therefore can hardly be said to have “hobbled the process right
from the start.”
- Ottawa did not broaden the definition of refugee to include “those
who could be persecuted because they are gay or abused spouses”: courts ruled
that the existing definition covered people persecuted on the basis of their
gender or sexual orientation.
- It is misleading to say that claimants can apply to review a negative
judicial review: in fact, most applications for judicial review are denied
leave, which cannot be appealed, and those that are heard can only be appealed
to the Federal Court of Appeal if a question is certified by the Federal Court
judge. Furthermore, claimants who apply to the Federal Court for review
of a pre-removal risk assessment or a humanitarian and compassionate review
can only do so with leave and they can be deported while the Federal Court
is still studying the application.
9. Inventing evidence is not legitimate reporting
The Globe article is accompanied by a chart that purports to show the “immigration
process.” It is referred to in the article as a “labyrinth of
confusion.” Indeed, it is full of confusion, but it mostly reflects
the confusion of the drafter, who seems to have been only very loosely inspired
by the actual immigration process. One suspects that it was developed
with a view simply to creating a “labyrinth of confusion.” Presumably
a similarly incomprehensible and inaccurate chart could be developed to “demonstrate”
the complexity of any process one wanted to condemn.
10. Those with most expertise on the subject should
Serious discussion of an issue should include consultation with those most
knowledgeable about the policies and realities. Yet, the Globe article
does not include any input from organizations that advocate for refugees,
nor indeed from those most affected, refugee claimants themselves. It does
include some quotations from Professor Catherine Dauvergne, who “believes
Canada should retain the positive elements in its system” but this point is
only introduced towards the end of the article and is never explored.
How credible would we consider an article attacking the health care system
if the commentators quoted were predominantly people who neither used the
system nor worked closely with it?
Refugee claimants ask Canada for protection from return to persecution.
In many cases, their fears are well-founded and they rely on us to treat them
fairly. In Canada, as in many other parts of the world, refugee claimants
are often the victims of prejudice and misinformation. Given their
vulnerability, we owe it to them – and to our own self-respect – to look
beyond the prejudice and misinformation to ensure that justice is done to