The Government's Refugee Determination

CANADA'S PERIODICAL ON REFUGEES REFUGE Vol. 6,No. 1 October 1986 A Time to Rejoice

The United Natia High Commissioner for Refug-, Mr. Thus Refuge highlights here two major themes The gap remains, bridged by political leaders Jean-F'iczrc Hock4 anncunced today hat the Nansen Medal which bring us quickly back to ordec first, the begging for time and patience, reminding the Committee has decided to award the 1986 Medal to the Pea* of Canada in recognition of the major and sustained issue of refugee determination policy and advocate that yet another round of bargaining contribution made to the cause of refugees in their country secondly, that of receiving refugees with well- will occur in next year's promised consultation. and throughout the world ova the yeas." (Press release. founded fears of persecution who arrive in a United Nations, October 6,1986) manner to which Canada is unaccustomed. Yet refugee affairs are affairs of the moment. Very rarely do Canadians working with and for Certainly the recent arrival of Tamils in Canada refugees have occasion to rejoice -- there are ten In these pages Tom Clark underscores the illustrates that point. The Tamils unanimously million reasons not to. unflagging insistence of the Inter-Church claim past and potential future persecution in Committee for Refugees on principles of due Sri Lanka There appeared no other means of The news of October 6th brought us up short. process for all claimants arriving at Canada's affording them protection collectively as well Impersonal and distant non-governmental borden. Rabbi W. Gunther Plaut cogently as individually than to grant them temporary organizations have been watching Canadians in reminds us of the sensibility of these asylum and rights to seek employment and to their official and even everyday humanitarian propositions for Canadian life: to treat refugees enjoy health and social assistance benefits work. Every Canadian has the sovereign right otherwise is to practice the very discrimination while awaiting hearings for judgement on their to be proud of this singular honour, awarded for which Canada could eradicate. cases. By all accounts, Canada's move appears the first time to all the people of a country. at once generous and sensible. The Canadian effort on behalf of refugees has The Canadian government's position, too, been collective. It has been animated in local appears plausible. Due process will be assured But it is not undebatable. If these Tamil community groups, in agencies and in but withii limits which the government claimants arrived from West Germany, which provincial and federal government ministries in considers practical, and costefficient. And also granted them asylum, why did they not Canada and abroad. It has extended from government representatives are unwilling to remain there? How does this particular group resettlement in Canada through sustained and forward policy which in its estimation, it differ from other refugees who are discontented sometimes bold efforts to provide Canada's cannot responsibly deliver. Refugee policy is with their country of refuge and wish to rejoin protection nearer their homeland. one among many games in the political arena. family members here? Is ingenuity rather than It is subject to the same type of compromises need for asylum being reinforced in this November 13th will be the day for momentary as foreign aid and wheat subsidies. instance? Continued on p .2 rejoicing, to take satisfaction in our efforts, however fledgling and chequered with partial results and half-successes these may be. IN THIS ISSUE: But all goods Kings come to an end -- so too Refugee Determination in Canada by Raphael Girard Page 3 with the new-found Canadian euphoria. We can Principles and Questions by W. Gunther Plaut Page 4 do no greater service in the spirit of Hansen The Government's Refugee Determination than to be critical of the refugee situation Proposals: An Update by Tom Clark Page 5 everywhere -- no less in Canada than in Forum Page 7 countries where social conditions force An Interview on the Case of the 155 Tamil involuntary migration. And to be critical no less of our own work than of our government's Refugees with Sri Guggan Sri-Skanda-Rajah Page 8 policy. A Time to Rejoice (continuedfrom p. 1) These questions will not pass with the reinforcing actions of the government such as successful adaptation of the small number of granting asylum to the Tamil claimants, the The respective responsibiities of two refugee claimants from Sri Lanka Very soon urgent points are effectively pressed. governments are also spotlighted. How often the Canadian government will have to argue and under what circumstances will Canada be that such acts of compassion also have limits Government for its part will have to enunciate asked to "share the burden" of accepting asylum- -- not only on the number of refugee claimants. clearly its practical operation. When can we seekers from countries where asylum has but also on the conditions under which third Canadiam expect the generous response? How already been granted? Should Canada routinely countries such as West Germany may send flexible will its policy be without bringing receive claimants from countries like West their claimants to Canada confusion to the very realm which has Germany, which discourages refugee arrivals by recognized Canada as its most distinguished detention and deprivation of other civil rights, Advocates insist that more is better and that contributor? With the gleam of honour comes but which at present protects them from quotas are irrelevant in the humanitarian cause the rub of increased responsibility. A time to refoulement and other of assitance to refugees. By selectively rejoice is a time for sober reflection C. Michael Lanphier

CANADA'S PERIODICAL ON REFUGEES The Nansen Medal

c/o Refugee Documentation Project, York University 4700 Keele Street, North York. Ontario M3J 1P3 The Nansen Medal is named in The Nansen Medal, struck in Editor: honour of Dr. Fridtjof Nansen 1954, was first awarded to C. Michael Lanphier (1861-1930), an eminent Eleanor Roosevelt and her late Norwe ian scientist and huma- husband (President Franklin Feature Editor nist wP; ose diverse activities D. Roosevelt) for initiative in Alex Zisman ranged from exploration of establishing the Inter-gov- Managing Editor: Northern regions through ernmental Committee on Noreen Nimmons intricate diplomacy. Refugees. Editorial Assistant: His contributions to the Subsequent recipients have Alice Dinerman international assistance to included heads of state, pro- Refuge is dedicated to encouraging assis- refugees, notably co-ordina- minent figures in assistance to tance to refugees, by providing a forunl tin rapid repatriation of some refugees, as well as indi- for sharing information and opinion on Canadian and international issues per- 458,000~risonersof war after viduals who have performed taining to refugees. It is published four World ar I, culminated in his heroically for refugees. times a year by the Refugee Documenta- a pointment in 1921 to first tion Project. It is a non-profit, independent periodical supported by private Jgh Commissioner for Re- The Nansen Committee, donations and by subscriptions. It is a fugees for the League of headed by the High Com- forum for discussion, and the views ex- pressed do not necessarily reflect those Nations. He organized the missioner and corn osed of of its funders or staff. League's refugee efforts to nominees of the 8orwegian All material in Rrfirgt. may be reproduced bring about self-sufficiency and Swiss overnments, and without permission unless copvrighted among refugees. the chair of &e commission on or otherwise indicated. Credit should be refugees of the International given to the author or source if named. Council of Voluntary Agen- Subscription rates for one vear are $20.00. The Nansen passport for Please enclose payment \\.it11 your order. (stateless) refugees was ado - cies, is free to nominate any No discounts can be given for American ted in 1922. Subsequent re 8- person or or anization. This funds because of bank charges for foreign gee laws, including financing year the 8ommittee has cheques. activities on behalf of refugees accorded the medal to a nation, Logo design: under his direction, reflect his the People of Canada, for the Dreadnaught Cooperative Inc., Toronto pioneering efforts. first time. Second Class Mail Registration No. 5512 ISSN 0229-5113 Refugee Determination in Canada by Raphael Girard

On May 21, 1986, after extensive study and obligations. Notwithstanding this assessment, The norm to which the programme works is consultation, the government announced a a claimant with close relatives in Canada can be the provision of a "one-stop" service. In most package of proposed reforms designed to admitted providing the relative is willing and cases, claimants are informed of the decision simplify and improve Canada's refugee able to sign a guarantee of support. upon completion of their interview; if accepted, determination process. they become permanent residents of Canada. Guidelines have also been issued pertaining to Pilot interviews with clairnants started the last Highlights of the proposed system include: applicants who cannot meet the test of week in August, and the operation will be in independent decision-making by a specialized successful establishment, but who nonetheless full swing by November. To date, some 2,000 Convention Refugee Determination Division; a merit favourable treatment because of the cases have been dealt with by the non-adversarial oral hearing for claimants on adverse effects that would result for the Administrative Review Project. Interviews questions of merit; decision-making by two- claimants, or members of their families, were with claimants will be completed by June or member panels which offer the benefit of the they returned to their home country. July. 1987. doubt to the refugee claimant; and the right of an appeal by leave to the Federal Court of All successful claimants must meet the The legislation to give effect to the Canada on questions of law and jurisdiction. requirements of the Immigration Act insofar as announcements made by the Minister of State The system also contains reasonable medical, criminal, and security screens are for Immigration was given prominence in the limitations on access, in order to discourage concerned. Applicants who are not selected Speech from the Throne, on October 1st. This unfounded claims and to prevent long delays for are free to pursue their claims within the is an indication of the government's genuine refugee claimants. existing refugee determination system. determination to bring in legislative reform of the refugee determination system, at the earliest In order to deal with new claims arising Special offices have been established in possible opportunity. between May 21st and the coming into effect of Montreal, Toronto and Vancouver to process new legislation in 1987, the "fast track the backlog of claimants. Elsewhere, the system, consisting of an accelerated inquiry and operation is being conducted from regular Raphael Girard is the Co-ordinator of the refugee determination system as it exists in Canada Immigration Centres by trained staff. Refugee Determination Task Force at CEIC. current legislation, but supported with additional resources. was also announced. The "fast track is not encumbered by the refugee claims backlog as of May 21, 1986. Its objective is to shorten the time for resolution Annual Report to Parliament on of refugee claims, to put cases through in a few months rather than in several years. Future Immigration Levels

To make fast track work efficiently, certain 1986 types of cases have been held out of the system -- nationals of countries to which The Annual report to Parliament on 1987 repeats the 1986 guidelines. The Canada does not deport, such as Iran, Sri Future Immigration Levels was tabled on following statistical table, comparing Lanka, Afghanistan, Lebanon, Czechoslovakia, October 30th by Gerry Weiner, Minister government-assisted refugee allocations and so on. These cases receive Minister's of State for Immigration. Canada's intake over the past few years, has been compiled Permits to provide equivalent protection for up to one year, pending a review of Canada's of 12,000 government-assisted refugees in using CEIC sources. removals policy.

An administrative clearance of the refugee claims backlog was also announced in the Government-Assisted Refugee Allocations 1984-1987 proposed reforms. Over 20,000 claimant cases I I I I are eligible for review, concentrated largely in I Region 1 1984 1 1985 1 1986 / 1987 1 Montreal (45%), Toronto (45%) and Van- couver (5%). The population is also wn- S.E. Asia 3.000 centrated in terms of its ethnic and geographic E. Europe 2,300 background. Sixty percent of the claimants are Latin America 2,500 from six countries: Guyana, Sri Lanka, Africa 1,oOO Jamaica, Portugal. Iran and El Salvador. Middle East 800 Claimants are judged on their establishment or Other 400 the likelihood of their establishment in Canada. Reserve 2000 ~umim~ The criteria include: ability; the willingness of relatives to assist; the personal suitability of the applicant; and, the applicant's family Principles and Questions whole an orderly society with great potential and a standard of living which is among the by W. Gunther Plaut highest in the world. We have our warts. but they are small in comparison with our generally healthy complexion. People from other lands consider Canada a most desirable When in 1985 I submitted my report Refugee It must not be denied that abuse of our country in which to settle if the opportunity Determination in Canada to the federal govern- determination system has lately grown to presents itself. ment, I made 89 separate recommendations. Of womsome proportions. The most flagrant these. I consider five to have priority as the example is the recent arrival of thousands of It seems to me that we ought to be happy with principles on which the whole process must Portuguese who, on landing, have claimed that the high esteem we enjoy. Immigrants, like rest if it is to be fair. they were Jehovah's Witnesses and were Wig refugees who settle here, will benefit and not persecuted in their homeland. When the claims harm our society. They are most likely enter- Principle one: Refugees must have reached unmanageable figures, the government prising people williig to leave everything they access to the process. Without access introduced visa requirements for Portugal and know behind, to go to an unfamiliar world with there can be no fairness. Any attempt to decide thereby eliminated a good deal of the problem. a difficult climate. On arriving here, they will refugee claims by border officiales must be Political considerations delayed speedier action work hard and bring their determination to bear resisted. and the addition of the Portuguese claims to the on our future. Good for them, and good for us. Principle two: The claim of the re- already large backlog of cases has threatened the fugee must be heard by an indepen- integrity of the system. We have quotas, or as the Department liito dent Refugee Board. The number of call them. "immigration levels", which are members hearing the case is less important Large sums have already been infused into the determined by the Cabinet from year to year. than that those hearing it be well-trained and determination process, especially at the level of These are ad hoc decisions, based on a number totally independent in their judgment. the Immigration Appeal Board, to cope with of economic factors, chief among them the Principle three: There must be an the sharp increase. But that is not enough. level of unemployment. opportunity for a proper appeal. The most immediate solution would lie in the immediate admission of all those claimants Do the Department and the Cabinet arrive at Every decent legal system provides for it, whom at present we will not return to their their levels by way of a generally accepted, because human judgment is often faulty and a homes, that is, to those countries where civil scientifically-based analysis? Are there other review will help to safeguard the accuracy of strife exists and the repression of human rights considerations that are at play, and what are the decision and the fairness of the process by is indubitable. (This would clearly exclude the they? Whom should we take and whom should which it was reached. A proper appeal also Portuguese but would include the Tamils.) we not admit? Are some parts of the world means that appeal judges must be familiar with Such a policy, coupled with the additional better than others as sources for Canadian the special nature of refugee determination admission of those who already have a support immigration? cases, with their often inaccessible human and system in Canada, would reduce the backlog to factual components. Nothing exists in the These and similar questions are not diitly reasonable proportions. domestic realm that compares with them. aspects of our refugee determination problem. Principle four: The process must be It has been said that such an approach rewards but they are part of a larger picture and expeditious. Judgment delays add an those who breach our set immigration highlight the need for the government to let the intolerable burden to the claimant as well as to procedures and "jump the queue". To this public participate in a consideration of long- the administration of justice. argument, I give two answers: range population planning for this country. Principle five: The process of deci- These issues and others were raised in Part 11 of One is that queues exist for immigrants, not for my report, but so far the government has not sion-making must be non-adver- refugees. The latter are by definition incapable released it to the public for consideration and sarial. Both state and claimant are there to of standiig in line at our consulates and discussion. arrive at the truth. The state shouldnot by to embassies, for they are fleeing for their lives. prove the claimant wrong. A non-adversarial To be sure, not all claimants do, and a number Meanwhile we have to deal with the immediate procedure will also more properly preserve the of them will be found to have made task of reforming our deformed present process. status of the claimant, who is not to be treated insupportable submissions. But this can be If it is done with ready humanity, rather than as a criminal. The way we arrive at the truth ascertained only if the regular legal process so petulant hesitancy. we will not only earn the reflects on our own humanity. establishes it. By definition refugees do not fit plaudits of the world but benefit the Canadian polity. For it is the kind of people we are, and The case of the 155 Tamils who appeared in our orderly requirements abroad. for they are the victims of disorderly conditions. Immigrants not the wealth of our resources, that determines lifeboats off the coast of Newfoundland our future. illustrates the fact that these principles have so can wait their turn, refugees cannot far not been clearly understood. Emotional The second one is that it must be understood discussions took place over the right or wrong that abuse of our present or any future system of accepting these people into our refugee can never be totally avoided. We cannot build a W. Gunther Plaut is Senior Scholar at Holy determination process -- when in fact the law Berlin wall around Canada, and even such a Blossom Temple. Toronto. and the author of gives us no options at all. and neither will the wall would be breached. At best we can make Refugee Determination in Canada (published on new legislation, if it incorporates the above- the process speedy enough so that a stay of April 17.1985). a major report which served as named five principles. The difference will be only six months in Canada will not appear a a basis for legislation to bepromulgated by the that the process will then be both fair and worthwhile risk to the potential abuser. Federal Government in the coming months. speedy; and, if it can be reduced to six months. Rabbi Plaut's most recent book is his first the cost to the taxpayer will be relatively novel, The Letter, published by McClelland and small, and so will the incentive to abuse the Stewart. process. Canada is an attractive land. We are on the The Government's Refugee Determination Proposals: An Update

by Tom Clark

The government announced proposals for a new was supposed to serve as a deterrent. The expeditious procedure for all claimants with procedure for determining refugee status in interim procedure announced on May 21st decisive administrative responses tailored to Canada on May 21. 1986, just days before the preserves the uncertainty. It grants Minister's specific abusive situations if these should arise. May meeting of the Standing Conference of Permits, valid for only a year, to persons from Withiin thii expeditious procedure it is feasible Canadian Organizations working for Refugees. countries with severe human rights problems. to provide a refugee with the additional The right to a fair hearing is replaced by safeguards of appeal to a specialized appeal At the Standing Conference we began to administrative discretion. body on the merits of the case. understand the concerns of government officials, but we could not accept the proposals. However, the deliberate delay theory is too The present government has good fortune in an The Inter-Church Committee for Refugees wcal. The absence of an appeal in the opportunity to make its mark on Canadian (ICCR) members subsequently prepared an govemment's proposals may rather be a history. It could create refugee-related analysis of their concerns and objections. The deliberate if over-zealous attempt to speed up legislation which Canadians will look back on govemment had produced proposals which the new determination procedure. Yet this with pride. It could reinforce the humanitarian conflicted with the right to a fair hearing hypothesis fails to take into account the fact tradition for which Canada is increasingly granted under our Charter of Rights and that administrative discretion has its pitfalls. recognized internationally. That is on why Freedoms. That right was supported by The reaction to the granting of Minister's September 10th. church leaders requested a Parliament's Standing Committee on Labour, Permits to 155 Tamils makes this point. meeting on refugee determination with Prime Employment and Immigration. Missing was Some Canadians who were confused by the Minister Mulroney. the usual appeal to a competent specialized government's response would probably have body. been reassured if a competent independent Tom Clark is the Co-ordinator of the Inter- refugee body had undertaken a case by case Church Committee for Refugees. Some argue that there was an error of review of the need for protection. The lies and judgement. The government was put under a inconsistencies which upset some Canadians time constraint by then Employment and would have been less likely in the non- Immigration Minister, Flora MacDonald. threatening. non-adversarial confines of a New Publications Eyeing the problems of overloaded asylum respected independent determination body. procedures in Europe, and fearing problems The International Migration Review has here, the govemment proposed adoption of the Alternately, a fear of abuse seems to be the published a Special Double Issue titled same measures considered by European reason why the govemment tried to speed up "Refugees: Issues and Dictions". The main governments for a different set of circumstances the procedure by not providing a meaningful topics are Refugee Movements, Asylum and and particular problems. appeal. In similar areas of Canadian law it is Protection. ~efupIssues in ~&elo~in~ usual to find appeal to a specialized competent Countries, and Adjustment and Resettlement Yet'this rationale ignores that denying some appeal body with a final level of appeal to the (Center for Migration Studies, 209 Flagg Place, groups access to a fair hearing would not have Federal Court. This important safeguard for a Staten Island, New York, NY 10304, USA). curbed the large-scale arrival of those refugee refugee, need not add significantly to the time The Hmong in Tramition, edited by Glenn claimants from Portugal. Indeed, it limits required for an overall refugee determination Hendricks. Bruce T. Downing. Amos S. govemment freedom of action to write procedure. A specialized appeal procedure could Deinard (Staten Island, New York: Center for responses to hypothetical situations into be tailored to ensure fairness and efficiency in Migration Studies, 1986). Thirty leading legislation. Decisive administrative action processing refugee appeals and it would allow experts address the effects of mass migration on must be fashioned for specific problems, if they the Federal Court to play its normal role as the Hmong in France. Australia, Thailand and arise. Still, it is plausible that the measures watchdog for gross deviations in matters of the USA. restricting access were an attempt to reassure law. Working with Refugees, edited by Peter I. claimants in the face of the inevitable Rose (Staten Island, New York: Center for uncertainties. All these preoccupations of government, Migration Studies. 1986). The edited however, fail to consider the needs and the proceedings of the Simon Shargo conference on Other NGO groups have suggested that the rights of the refugee. The refugee claimiig refugee resettlement. proposals were deliberately unsatisfactory in status in Canada should have the right to have Guide to the Multilanguage Collections in the order to provoke further debate and further his or her case heard before a specialized Public Library System of Metropolitan delays, arguing that there are certain advantages independent decision-making body in a Toronto. The 1986 edition is available to the to delay. The time required for the present reasonable time. We remain convinced that public free of charge from their local public procedure has left claimants in uncertainty for govemment concerns of potential abuse and the library branch in the Metropolitan Toronto years. Although most critics argue that this refugee's need to begin a new life in a safe place area. delay attracted abuse, proponents counter that it point to the same solution. It is a fair and ICCR Protests Access Restrictions

CCR representatives were in Ottawa on May 21, b) Problems with the Proposals Canada to consider a request for asylum where 986 to hear the government propose the new Limiting Access physical safety or freedo& are endangered in the mxedure for determining refugee status and for present asylum country. Withiin the same spirit, lealing with the backlog of refugee claims. Four specific groups are denied access to the under Canadian law, a Convention refugee has the determination process in the proposals: right not to "be removed from Canada to a country Uthough the announcement of an administrative where his life or freedom would be threatened" Refugees with Statur porn a Signatory Counhy: .eview will excite many claimants in the 20,000 I. (Immigration Act, Clause 55). ,acklog, the criteria for the review are not yet These must have documents to prove the right ~vailableand so the ICCR cannot comment on the to residency there. The Minister subsequently The proposed appeal of the access restriction to the bdministrative review at this time. stated publicly that this will apply to people Federal Court is inadequate. An evaluation of a with "durable proteaion". claimant's protection or of changed circumstances and heproposals for refugee determination have some 2. Persons in Canada for 6 Month withoW their impad on a claimant is outside the jurisdiction ~ositiveelements but. in spite of ten years of of Asking for Statur of the Federal alnbecause it is not a matter law, advocacy, still contain measures which erode refugee and should be decided by a body well versed in current rights by preventing sane claimants from having 3. Thaw returning to Make a Rep& Claim &gee cases. heir case heard by the determination body. The [CCR, with other non-governmental organizations, 4. People with Removal Orders from Cam& ?retested these restrictions in its response to the c) Problems with the Proposed Appeal Decisions of immigration officials who deny access proposals at a press conference. If a refugee claim has been denied by the refugee will be reviewable by the Federal Court to ensure deermination body. leave to "eppeal" to the Federal On February 5. 1986. leaders of nine Canadian theyaresuppunedbytheevidence. churches and religious bodies had delivered a jointly Court is provided in the praposds. ligned letter to Prime Minister Brian Mulmney reek- ?he ruwictions on access are justitled by the ing assurance that the new guidelines would not limit government as a way of pventing anticipated abuse. Our Objedions: the right to a full and fair hearing of a refugee claim in Canada (See ICCR Bulletin, Special hueFebma- Our General Principles: 'Zhe guidelines for refugee determination. accepted by ry 1986). Many individuals and church-dated groups Canada u part of the 1977 Conclusions of the The lack of universal rcesr to a fair hearing is a had sent similar letters in support of the church lead- Exeeutive Committee of the United Nations High denial of human rights granted under the Canadian en. The new proposals ignore this strong consensus. Canmissioner for Refugees, provide for an appeal. Charter of Rights and Freedoms. Denying this right to applicants dctsdirectly with the Supane Such m a@ is normally provided thmughout the Short Analysis of the Proposals Court of Canada decision of April 4, 1985 on the Canadii judicial system. It is particularly important to when life. libetty and security of person are at stake. The proposed streamlined procedure had three case of Singh el al, which granted an oral hearing every claimant in Canada. As Judge Wilson noted in elements: access, or who gets to be heard, Any meaningful appeal must be able to review the determination, or how the case is decided; appeal, or the decision: "certainly the guarantees of the Charter would be illusory if they wuld be ignored because it merits of the case credibility and facts. Leaves to review for possible wror. While the new was administratively convenient to do so" @age 64). appeal are only granted when there are flagrant legal determination procedure contains some welcome violations. In that rare event, the Federal Court does improvements, questions of access and appeal would The guidelimes for refugee determination. accepted by not have the expertise to deal with the facts or the breach the fundamental human rights granted under Canada as part of the 1977 Conclusions of the credibiity of a refugee claLn; it can only make Section 7 of the Canadii Charter of Rights and Executive Committee of the United Nations High decisions on mattem of law. Freedoms to all people physically in Canada. No Commissioner for Refugees, require that all cases be provision is made at the end of the process for a referred to the refugee determination authority. For 6) Humanitarian Procedures Undear meaningful appeal followmg a negative decisicm. immigration officials to control access to this authority is, therefore, unacceptable. The application Many groups of refugees flee serious civil upheaval a) Laudable Elements of the Proposals of such restrictions to access is new and dangerous or strife. Although individuals in these groups may I. Oral Hearing: The proposals entrench the right to because it would set a precedent. not meet the strict definition of Convention refugee. an oral hearing for each refugee case granted access. the United Nations High Commissioner for Refugees Our Specific Objections: asks that such refugees not be sent back to unsafe 2. More than One Decision-Maker: The decision- places. An example would be sending Iraniis back For each group with restrided access we can foresee making body consists of two people. Only one vote circumstances where life, liberty or security of penon to Iran. is necessary for a claim to be successful so the could be at risk. These persons, therefore, have the benefit of any doubt will go to the claimant. right to procedures consistent with the fundamental The provisions for such humanitarian cases in the new government proposals are unclear. It will be principles of justice. 3. Separation between Immigration and Refugee important to ensure a fair and effective pmcedure: Boar&: The decision-making body is separate from The ICCR has consistently argued that the just and immigration procedures and will be directly expeditious refugee determination procedure which it Entry to the procedure for humanitarian review must responsible to the Minister of State for Immigration. has advocated would not attract abuse. not preclude an application for Convention Refugee However, administrative ties may limit the degree of status. separation. A research centre will be set up with The proposed restriction of access for some with prior current information on refugee-producing situations. protection as refugees in another country sets a An independent credible body with expertise The Minister's discretion to land refugee claimants dangerous precedent because other related exclusions comparable with that required for refugee under excepional circumstances is pmtected. could follow. The proposed restriction goes beyond determination procedures should control who is the exclusions set out in the Geneva Convention and allowed to stay on humanitarian gmunds. 4. Non-Adversariol Hearing: The oral hearing is to Protocol. Canada supported the Conclusions of the be conducted nm-adversarially. thus providing a Executive Committee of the United Nations High Those who are allowed to stay in Canada should be "helpful" environment conducive to eliciting the facts Commissioner for Refugees, 1979, which require allowed to proceed u, permanent residence. status. of the case to be presented inadequate. All of the following principles Refugees: Requiring Urgent Reforms must be respecbxk

by Sergio Marchi, MP, York West Fair and humane aatmmt of the individual reiilges~laiman~ Opposition Critic for Immigration and Multiculturalism Equal access to refugee determination procedures, regardless of muhod of entry, IN THE PAST TWO YEARS Canada's ting time requirements under which the claims OOuntry of origin, or country of last sojourn. The right to p~mta case personally before the relation to refugees has been under extensive may be heard, and suggests a case-by-case decision-making bcdy. review. Refugee determination has become one clearance of the backlog rather than instituting The right of an appropriate and strong appeal of the key concerns of our present day a comprehensive and collective policy. mechanism, which anphasizcs a second on1 hearingbcf~~~aspecializedre.fugeeappealbody, immigration policy. Although much public prior to having access to the Federal Court of attention has been given to this issue, To criticize the Conservative government's Appeal. (For fuahcr information. see Libem1 government policy action to rectify the unfair approach without an optional programme &Y md) would be unfair. I found the following liberal The right of counsel for the claimant from the and unjust system has lagged behind. initial stages of the dmrmination p~occss. principles as the alternative to the government's A pnxxss that strives to be expeditious with It is time that we, as a nation concerned with a stand. final dccisims rcndcnd within a reasonable fair and just democratic system, commence to paid ob time Internationally. Canada has established itself as A clur and distinct sqwation of the &gee address this issue expediently and in a dctcrminatim ploasl fmn that of immigntia responsible progressive manner. a country of human compassion and Reccdence given to dacrminatim rather than understanding, whose borders were open and cxtnditim; thcrcfom, the dimination of the The most obvious and damaging policy all aining dverslrirl systrm accessible to those individuals who needed Responsible decisions unrffected by political component is that the government is prepared and sought opportunity and hope for a better bin. to limit access to the refugee determination future for themselves and their children. Compaent md a-te tramlatiion sari- to process on the grounds of the claimant's amre ruthanicity of r claimam's tituation. The Conservatives' proposed vision to address Speedy rwni6dm of r nfugac with Mcr country of last sojourn. The vast majority of family dta the granting of rcfugac status is refugees must escape their country into a the realities of those seeking refuge, and essential to their well-- .bo a lengthy secondary country before coming into Canada, particularly the new phenomena whereby 'cp.ntion hu d.ng- repacussiana for refugees are arriving at our doorstep as opposed family manba who lpnlin in the homeland since persecution cuts off direct access to -try. Canada. to immigration officials selecting them from refugee camps throughout the world, is The afore-mentioned principles will serve to re- In addition, the government proposes a tembly establish Canada's eaditional leadership role in weak appeal procedure to Federal Court, is safeguarding the plight of refugees and their silent on the right of legal counsel from the hi- human rights. tial stages of the process. recommends legisla- Forum humanitarian grounds. There was no flood of Visas Versus bogus applicants. Canada has done similarly with Chileans and Salvadoreans. From January Refugees I1981 to August 31. 1986. three hundred and six condemning Guatemala for grave human rights Chilean refugee claimants in Canada were accep- by Dan Heap, MP, Spadina violations. We had many incontrovertible ted, and 296 were rejected. This acceptance rate NDP Critic, Immigration reports that the armed forces had massacred is over 50%. twice the general average. Two Indians and other campesinos and that the death hundred and thirty-nine Salvadoreans were squads "disappeared, tortured and killed trade CANADA HAS BEEN quick to require accepted, and 526 rejected -- which is still union activists, outspoken intellectuals and consistent with the general average. visas of people coming from right-wing church leaders. Mexico was uncertain as safe dictatorships to claim refugee status here, but haven. The US refused safe haven, (not sur- Why has Canada tried to shut the door to slow to stop the notorious abuse by thousands prisingly, since it was the ally, if not the Chileans. Salvadoreans and Guatemalans who of "Jehovah's Wiesses" claimants from author, of the reign of military terror). Canada came to Canada to claim refugee status? Does Portugal. This seems to be part of a move gives safe haven -- for which we are very Canada restrict access to refugees as a policy? (coordinated to some extent by international thankful -- but restricts access to it. Why? If so, who chose this policy? Not Parlia- staff discusssion) to shut out Third World mentThe Minister? The bureaucrats? And why? refugee masses from our neat, tidy and Our government's excuse is that Canada prosperous "First World. Hungry people instituted a special programme for Guatemala, European countries are faced with a greater from countries impoverished by our by which our Embassy has helped many volume of inland refugee claimants arriving corporations who use their land to grow cheap hundreds of Guatemalans to escape death threats from countries nearer to them than any are to crops for us, or from countries ruled by and to enter Canada on Minister's Permits. Canada. They are responding generally by res- governments more friendly to us than to their That is true, but does not justify shutting tricting access. Is this becoming a policy of own people, sometimes use the facilities of Canada's door to other genuine refugees who "Western* or "Northern" governments? And is modern travel to arrive in Canada. Our escape the death squads on their own. The it decided by electedrepresentatives, by theinter- immigration authorities frequently try to keep government raised the fear of bogus refugees national network of bureaucrats, or by others? them out. The legal battles are many and the flooding into the country, but their own The military and industrialcommercial policies moral issue is grave. I believe the Minister statistics belie that argument. of the "Western" or "Northern" countries align ought to review our whole visa policy and From January 1981 till March 1984, Canada us generally with the governments of many invite public discussion of it. accepted 67% of claimants from Guatemala Third World refugee-producing countries. Is this On March 14,1984. Canada imposed visa requi- -- 279 whose lives were saved, against 139 who our intention? If not, Canada ought to set a rements on Guatemalans. This was the same failed to meet the strict Geneva defmition but clear humane policy by removing the visa requi- year Canada co-sponsored a UN Resolution of whom many qualified for entry on rements from GuatemalqEl Salvador and Chile. An Interview on the Case of the 155 Tamil Refugees

Last August 155 Tamil refugees were been deported to Sri Lanka have suffered at the providing these claimants with the right to seek found cramped in two lifeboats off the sho- hands of their own government. Amnesty and obtain work, the government hoped to res of Newfoundland. They had come from International has documented their treatment in ensure their survival without recourse to social West Germany. However, for four days its publications. assistance or welfare. The Tamils were not, as they claimed that they had sailed from is commonly believed, determined to be Con- South India, before finally revealing the Faced with the prospect of forcible removal vention refugees, nor did these documents con- back to Sri Lanka or to some other unknown true origin of their journey. Their arrival fer that status on them. In fact, it is important Refuge place and the accompanying danger and to understand that the Minister's Permit and the stirred a national controversy. uncertainty this prospect posed, the Tamils work permit are merely putting these people in decided to interview Sri Guggan Sri- chose to come to Canada by surreptitious a holding pattern until their cases are reviewed Skanda-Rajah, a community legal aid means. It was natural that they would want to under the new determination process. worker at the Jane-Finch Community take the steps necessary to ensure their safety Legal Aid Clinic to discuss their fate. Mr and security. It is only in light of these Refuge: How might Canada benefi from this Sri-Skanda-Rajah is also Vice-Chair of the extenuating circumstances that their actions can incident? Toronto Refugee Affairs Council and be understood. Unfortunately. the method they Public Rela-tions Co-ordinator, Tamil chose, and the story they decided to tell, Sri Guggan Sri-Skanda-Rajah: The posi- Eelam Society of Canada. adversely affected their reception in Canada. tive side of the Tamil incident is that it produced a healthy debate and, in doing so, Refuge: Why would these TamiL need to Refuge: What were Canada's options upon brought into proper focus the mess of the come to Canada from Germany? Was it for their arrival? immigration process and the mess that exists in economic reasom? the refugee determination process. Sri Guggan Sri-Skanda-Rajah: Before Unfortunately, it also revealed the nastiest Sri Guggan Sri-Skanda-Rajah: Unfortu- the Tamils arrived on August 11th, Canada had elements of Canadian society, arousing people nately, I think that is the conclusion too often instituted a new refugee policy for dealing with who are hell-bent in their prejudices and drawn in similar situations. Quite frankly, it is people who had been here prior to May 21, determined to send these people home. important to realize that there is very little 1986 and who had in some form or another difference between the West German and indicated their desire to claim refugee status. Refuge: HOW did the Tamils see this Canadian standard of living. The difference is Under this policy, claims are processed by way situation? not of such significance that people would risk of what is called an administrative review. The their lives and spend thousands of dollars to government instituted the new review process Sri Guggan Sri-Skanda-Rajah: Safety make their way to Canada in recognition of the fact that most of these and security are all-important factors of the people have established some roots in Canada. decision of a refugee. The refugee is not in The real explanation lies elsewhere. In coming They have established themselves by working normal circumstances and cannot fie an to Canada, the Tamil refugees were responding and saving and in many cases, upgrading their application. He is more likely to do that in to their fears about what action the West skills. The policy recognized that these people places like the Austrian camps, or in Southeast German government might take if they stayed made a contribution to the economy of this Asian camps. because in these places he has in that country. Overwhelmed by the sheer country and aimed to give them permanent some sense of security and the host number of Tamil refugee claimants over the residency in light of their contributions. About governments are not likely to remove him back past year and a half and convinced that these 75% of those people in the so-called backlog to the country from which he fled. The Tamil people were economic refugees, European would benefit from this administrative review in Western Europe is not in so secure a governments such as France, Switzerland, process. position. He has this constant threat, this Holland and West Germany sought mechanisms constant feeling of insecurity because he does by which they could remove the Tamils from At the same time Canada recognized in addition not know what is his future. So long as this their respective countries. At first these govern- to the traditionally accepted designated nations feeling of insecurity persists, the Tamil, like ments attempted to establish refugee camps in of Eastern Europe that there were other any other refugee, is more likely to look for a Sri Lanka which they would finance and control countries fraught with political or civil strife place in which he is going to feel secure. and to which these Tamils would be returned. and upheaval to which people ought not to be Canada presents itself as just such a place. Such an action would have been a direct returned. This list of countries included Sri violation of the United Nations charter and a Lanka Refuge: Are the Tamil refugees jkeing a breach of those countries' international obliga- political situation, or are they, in fact, as the tions. When these countries realized that People arriving in Canada after May 21, 1986 European countries seem to perceive them, aspect, they began to look at alternate solutions would be dealt with under the procedure the economic refugees? such as establishing refugee camps in other government was planning to have in place by Third World countries to which these Tamils the spring of 1987. In accordance with this Sri Guggan Sri-Skanda-Rajah: Amnesty would be removed. It should also not be lost new policy, the government issued the Tamil International concludes that these people have from sight that in some instances these very refugees Minister's Permits, thereby giving reason to fear. The persecution in Sri Lanka countries had removed Tamils to Sri Lanka It them temporary status and entitling them to a takes a variety of forms: there have been is important to realize that refugees who have work permit in appropriate circumstances. By indiscriminate killings and retaliatory killings. People have been tortured and held Book Reviews could have been little more than a "case incommunicado, having no recourse to due study" of this comer of Africa. Both legal process. There is clear evidence that the laypersons and professionals will find the government of Sri Lanka has taken no action John R. Rogge whatsoever to investigate, charge and prosecute Too Many, Too Long: text satisfying and insightful; the use of violators of the law; violators who are Sudan's Twenty-Year maps, graphs, and photos to complement government security forces, have systematically and enhance the written word is to be Refugee Dilemma applauded. breached the law, taken lives and tortured Totowa, New Jersey: Rowman & people. Allenheld, 1985 J. Barry Riddell teaches Geography at The European governments are therefore wrong by J. Barry Riddell Queen's University. in concluding that the general Tamil profile is that of an economic refugee, when in fact, they John Rogge, a geographer at the Gil Loescher and John A. are political refugees in the true sense of the University of Manitoba, has produced a Scanlan word. thoughtful and interesting account of the Calculated Kindness: remorseless plight of refugees in the Refugees and America's Half- Refuge: What other factors ought to be taken Sudan. The work is based upon over ten into conrideration in assessing the Tamil @air? Open Door 1945 --Present. years of academic investigation of the New York: The Free F'ress, 1986 Sri Guggan Sri-Skanda-Rajah: It is predicament of these involuntary migrants important to look at the community profile. It both in the Sudan and in other parts of the by John Van Esterik is important for Canada to look at what it is African continent. The author's lengthy that the preceding Tamil claimants have done and broad experience is reflected in this In their introduction, Loescher and Scanlan whilst in Canada I think that an investigation mature and scholarly account. Rogge has express hope that this book will influence would show that the Tamils are industrious provided order and understanding to a American policies concerning refugees by generally, that they are not dependent on social situation which appears chaotic to most "examining the politics which shaped the assistance. They work very hard. Some of observers. He has effectively blended the American response to refugees over the them have been able to upgrade their skills. specifics of the Sudanese situation with past forty years." (page xiv). The authors They are significant contributors to the general concerns regarding refugee move- start the reader on an odyssey of American economy. Many of them take jobs that are ment and settlement, and he has placed politics and policy toward refugees in the readily available but are not generally taken by them into the contexts of refugee move- post-World War 11 era. others. They are prepared to do a variety of jobs. Some of them have two, maybe three ment, the several crises of the African Chapters outline policy development over jobs. They are basically law-abiding. There continent, and the reality of the Sudan. the last forty years. Some chapters has been no signficant or noteworthy The book details the plight of both rural emphasize politics and policy decisions incidence of any type of criminality. and urban refugees fleeing from political made by Presidents. Others emphasize the strife and ecological disaster. It describes influence of Congress. Each chapter also It is also important to deal with the nunours focuses on a particular refugee group or and allegations surrounding the boat incident the problems of the incorporation of these people in this fragile economic and issue. There is a chapter on the There was a claim that since the trip had cost Cambodian crisis and another on the significant sums of money, these monies had ecological mileu. Rogge is at his best in been earned by illegal means, such as through writing of settlement schemes such as Cubans and Haitians. Approximately half terrorist activities or other types of criminal those based upon rural land, the several the written text concerns the period from activities such as the selling of illegal drugs. wage-earning provisions, and the com- 1975 to 1985, when non-governmental The Royal Canadian Mounted Police Passpod plexity caused by the burgeoning numbers organizations and pressure groups Immigration Division did carry out a random in semi-urban arrangements. The reader influenced refugee policy. investigation of the Tamil refugees and have learns how these displaced people origi- Attitudes toward refugees in America since not come to any such conclusion. nated from the turmoil of Ethiopia and the 1940s have greatly changed. Given Uganda, and how both the Sudan and the the public awareness of the Holocaust I would merely suggest that these stories international community have responded. were fabricated by people who have their ow today, American policy at that time seems axes to grind, who have their own motives ir This is a book to be read and savoured. It brutally callous. Only Roosevelt and suggesting that the Tamils are trying to bring tells a sad tale without a pleasing Truman seemed to overcome the anti- terrorism and violence into this country. It i: conclusion, and in this sense the work is Semitism in public policy and take a more important to dispel this myth. To do that I troubling. Indeed, the book's title reasonable view of the issues. Many simply ask you to look at the record of th underlines the view of many of the host members of the Congress were bent on Tamil claimants who have come here befort Sudanese who have experienced extreme ensuring that Jews were excluded from the and to look at the record of the cornmunit] groups of displaced persons to be accepted which is very reasonable, responsible and low hardship for a great length of time while accommodating such vast numbers; this as refugees. Both Congress and President key. It has existed here for nearly two decades Truman were agreed, however, that anti- and there is no evidence that would sugges has only served to exacerbate the Sudan's that this community. despite the violence tha already burdensomeThird World condition. communism was a suitable basis for goes on in Sri Lanka, is in any way importin1 Because the book indicates understanding refugee policy (Displaced Persons Act). that violence here or practicing any form o of the setting and situation, the text This approach continues to the present violence or confnmtation. provides meaning far beyond a work which time. The important impact of the United States on world refugee policy is underlined by the influence of the US as the largest Projects & News contributor to the budget of the United Nations High Commission for Refugees. This occurred despite the fact that the US The Refugee Documentation Brian Coleman, Refugee Status was not a signatory of the UN Refugee Project congratulates Amnesty Advisory Committee member, is Convention of 1951. International on the occasion of its collecting poems and songs "on the 25th anniversary. A special article refugee experience" (exile, pro- US policy supported claims of refugees titled "Amnesty International and blems of integration and re- from communist domination after the Refugee Reforms", written by settlement, etc.). The material may immediate post-war period. The pattern David Matas, co-ordinator of the be written by refugees or others, began with the Hungarian refugees of legal network of Amnesty relate to any period of time, and 1956 and the first Cuban arrivals in the International -- Canadian Section should be in English or late 50s. It persisted with the later accep- (English-Speaking), will appear in accompanied by an English tance of Cuban migration during the late our next issue. translation. Contributions should 60s in sharp contrast with the refusal to be mailed to: Brian Coleman, 44 accept Haitians during the same period. Congratulations also to Meyer Caroline Avenue, Ottawa, Ontario, The story rapidly moves to the Southeast Brownstone, director of the Canada K1Y OS7. Asian refugees, also escapees from com- Toronto Centre for Urban and munist control, who began coming to Community Studies at the Barbara Harrell-Bond, Co- America in 1975. In the midst of this University of Toronto, chairman of ordinator of the Refugee Studies influx, Congress passed the Refugee Act OXFAM-Canada and one of our Programme at Oxford University, is of 1980 to regularize refugee flow. Loes- contributors, on being awarded the attempting to compile a directory of cher and Scanlan masterfully show how 1986 Pearson Peace Medal by the current researchers on refugee the Act of 1980 has not taken on the role United Nations Association in issues or related topics. Please note of opening America to bona fide refugees, Canada. the detachable form on page 11. but rather has continued to allow Presiden- Dr. Harrell-Bond would also be tial discretion in the same way the system The Refugee Documentation pleased to receive offprints or of parole admissions had in the past. Des- Project is sponsoring a Law and articles which may be published in pite the acceptance of the UN definition of Society Colloquium from 4:00 pm their periodical, Refugee Issues. refugee in the 1980 Act, accepted by the to 6:00 pm on Thursday, November Johnson administration in 1968, Reagan 27th at Stedman Lecture Hall A, The Refugee Documentation has continued the policy of accepting York University. Prof. James C. Project was honoured to have been fugitives from communism while denying Hathaway will be presenting Prof. visited on October 15th by Hugh other claims to refugee status. D. Dewitt, whose discussion will Pilkington of Nairobi, and friends The authors tantalize the readers in some be on "A Reconsideration of the from the World University Services sections with discussion of interest groups Underlying Premise of Refugee Canada. Dr. Pilkington's special and non-governmental organizations in the Law". interest in our Resource Centre, US but they mostly limit their discussion refugee research and the projects of to Presidential decision and Congressional The Honourable Gerry Weiner, our Research Assistants was greatly battles. For example, they mention the Minister of State for Immigration, appreciated. We extend our deepest active sanctuary groups for Central Ameri- announced on October 29th seven sympathies on his untimely death, can refugees only in passing. Canadian new appointmensts to the Imrni- last October 16th, at Brandon readers may have a few quibbles. In a gration Appeal Board (IAB). All University, Manitoba. discussion of Hungarian refugees, the appointments are for a two-year authors note that the US took the greatest term. Total IAB membership is Please note the form on the back number of these refugees, accepting now forty-nine. The increase is in page for ordering a book due to be slightly over 38,000. They do not remark keeping with recent legislation published by the Refugee Docu- on the fact that Canada, which took which proclaimed an IAB mentation Project. It will cover the 37,000 Hungarian refugees, made a much membership expansion of up to edited proceedings of the Inter- more impressive contribution on a per fifty. This expansion adds to the national Symposium Refuge or capita basis. Also they refer to the Minis- flexibility and capacity of the Board Asylum -- A Choice for Canada, try for External Affairs as the Foreign to deal with the greater number of which took place at Glendon Ministry. This is, however, an excellent, cases. The new members are: College, York University, on May well-researched and documented book on Irene Chu, Cesar De Morais, 27-30, 1986. The book will US policy over the last forty years. Taciana T.U. Jew, Jean E. provide an ideal opportunity to keep MacLeod, Beverly J. Ray- informed about the main topics of John Van Esterik teaches Social Scien- burn, Ernest A. Rotman and discussion of this extremely ce and Anthropology at York University. Irvin H. Sherman. successful event. Refugee Issues Please fil out the following form re ardin refugee-related research which you have conducted, and mail it, toget er wi.L papers you wish considered for publication in Refugee Issues, to: Dr. B.E. 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