> THE REFUGEES WE DON'T WANT TO KEEP Some Background to the Case of Victor Regalado By Kristin Hanson

Being recognized as a refugee in the case of his country armed force was to Parliament when it was enacted, does not necessarily entail the only recourse possible against because the following subsection being granted asylum in Canada. A governmental terrorism. provides for a special annual report to be refugee will generally not be given Regardless of the merit of this made to Parliament of any such permission to stay if he is already argument, what has excited so much ire certificate issued," wrote Judge J.A. protected by or returnable to a country in Mr. Regalado's case is that he has Montgomery. Only eleven such other than the one where he fears been determined to fall within this class, certificates have been issued since the persecution, except out of special and therefore has been detained and lmmigration Act took effect in 1978. humanitarian considerations. He will ordered deported, not in virtue of any Never before has it been used in the case also not be given permission tostay if he factual evidence presented to an of a refugee. is found to fall within certain categories immigration officer, or adjudicator, or related, essentially, to security or judge, or his lawyer, or himself, but on ictor Regalado is a 33-year-old criminal conduct. The required security the basis of the following attestation: journalist from . clearance has recently been dramatized v We, the under5igRsdI .mycertify that it is According to his lawyer, he used to be in a rather extreme form in the much our opinion based on security and criminal an activist with the Democratic publicized story - "Expel me and I die, intelligence reports received and considered Nationalist Union which today forms Salvadoran tells immigration hearing" . . . by us, which qaonot be reveals@in grder to part of the Democratic Revolutionary "Une incamhtion injustifw . . . 'Une protect Information sources, 'that Victor Front (FDR), the political arm of the deportation honteuse" - of Victor Manuel Regalado is a person described in Salvadoran opposition. He claims that Regalado. paragraph (19#7) (f) oUhe lmmigration Act, he has never promoted the use of Canada's lmmigration Act designates 1976, his presence in Canada being detrimental to the national interest. violence to overthrow the junta, nor certain classes of people as been part of the guerilla movement. Signed: Lloyd Axworthy, Minister of inadmissible to Canada. Although most He first came to Canada in February of these exclusions make an exception Immigration, and Robert Kaptan, Solicitor General. 1980 as a visitor, and visited Salvadoran for refugees, a few do not, including the groups in Canada and presented one specified in section (19) (1) (f): Under section (39) of the lmmigration information and political analysis on persons who there are reasonablegroundsto Act, such a certificate, when it deals with behalf of the FDR. His visa lapsed, and believe will, while in Canada, engage in or someone other than a Canadian citizen although he applied for permanent instigate the subversion by force of any or a permanent resident, is in and of residence in Canada, he left in August government. itself proof of the matter stated in the 1980 for Nicaragua, where he attended a certificate. And under section (19) of the conference of journalism students and This section has some notoriety in itself. Act, the report on which such an Salvadoran journalists, and then went At the time of the drafting of the current attestation is based may not be required on to Mexico. At the end of December lmmigration Act it was noted that, to be produced in a court or any other 1981, he left Mexico to come to Canada. among other problems, this section proceeding. After being refused a visa by the technically left the door open, for "That such a provision is contrary to Canadian consulate in Mexico City, he example, for a refugee from a terrorist the principles of justice normally crossed the Mexico-United States regime to be expelled for saying that in respected in Canada was no doubt clear border on foot and, travelling without stopping, arrived on January 5, 1981, at the Canadian border at Blackpool, south A NOTE ON SECURITY CERTIFICATES of Montreal, where he requested Canadian protection as a refugee. Translated and excerpted from a paper by Dominique Boisvert He was temporarily returned to the United States. If an immigration officer Of what value are the "secret security or the Lybii death squad that was supposedly thinks that it will be contrary to the criminal intelligence reports" on which a in thp United States to assassinate President lmmigration Act to let someone enter security certificate is based? Reagan. The FBI had to admit later that the Canada, he reports that to a senior Who furnishes the information? We death squad was undoubtedly a fabrication, immigration officer, who in turn either and that they didn't have any proof and had can't know for sure since it's all state lets the person in or holds an inquiry. If secrets, but we can be pretty certain that pethaps been deceived by their source. In the secret reports are prepared by the November a Quebecois leader of a Catholic no adjudicator is available to preside at security services of the RCMP, which are activist movement was arrested by the the inquiry, if the person concerned was in turn fed, particularly in thecaseof Latin American authorities at Dorval before a residing or sojourning in the U.S., he America, by the American intelligence connecting flight to Miami en route to Latin may be returned to the U.S. until an services such as the CIA and FBI. On July America. According to the computers of adjudicator is available. 12, 1977, in front of the Parliamentary American customs, he had been convicted To digress for a moment, Mr. Committee of Manpower and Immigration, a of fraud here and did not have the right to Regalado's lawyer, Noel St. Pierre, former deputy minister of lmmigration leave Canadian soil, being under probation suggests that "this article [(23)(4)] should admitted that it was foreign intelligence until June 1982. Now he had never had the not be applied to persons demanding services (read: American) that told the Can- slightest quarrel with the police or the adian government how it should treat the judicial authorities, and the RCMP itself refugee status and who have no legal information communicated to it if it didn't confirmed that they had nothing against status in the U.S. Otherwise there is always want to see its sources of information dry up. him! Evidently it had been an unfortunate the danger that the person sent back, even What credibility do these information computer error. if he has a document telling him to present sources have? Unfortunately for our With a security certificate against him himself at the Canadian border at a "security", the information of intelligence instead of evidence, who can assure us that certain time, may be treated as an illegal services is often unreliable. The recent Victor Regalado is not also a victim of a examples multiply. It suffices to remember computer error? Statement by the Honourable immigrant by the American authorites hat happens to a refugee who is Lloyd Axworthy, Minister of and eventually sent back to his country W expelled from a country where he Employment and lmmigration of origin." has sought asylum, on the grounds that concerning the case of Victor In the case of Mr. Regalado this almost he poses a security threat? Under the Manuel Regalado happened, according to Mr. St. Pierre. United Nations Convention Relating to I would like to clarify some of the issues "The American immigration service had the Status of Refugees a state is to allow arising from the case of Victor Manuel received the information that he was such a refugee time in which to seek Regalado. undesirable in Canada, and that he legal admission into another country. As you know, the Solicitor General and I would be expelled from Canada and This is possible because one country's have determined that it would be contrary possibly returned to the U.S. The security risk may be another country's to Canada's interests to permit Mr. American authorities, wanting to finish Regalado to remain in Canada. Our good citizen. An example was presented decision was based not on what Mr. with the case, transferred him to the at the recent National Symposium on Regalado has said orwritten, but ratheron prison in Plattsburg, N.Y., and gave him Refugee Determination of a refugee in a the activities in which he was engaged. a document beginning the procedures Scandinavian country who was a Mr. Regalado, while in Canada, for deportation from the U.S. dissident from an African liberation participated in activities which were "It was only after a series of movement the country of asylum was contrary to the laws of Canada and which interventions by Montreal and supporting. For another country he could result in danger to individual lawyers, and with the assurance that he posed no problem, and the two Canadians and to this country's national would not be immediately expelled from governments arranged for him to interest. The information compelling us to Canada, that American immigration reach this conclusion cannot be revealed receive asylum in that cou~tryinstead. without damaging our national security. returned him to Canadian immigration In Mr. Regalado's case, Mr. Axworthy For this reason, the Solicitor General and I to sit the special inquiry where he has indicated that Canada would not signed a Section 39 Certificate which has officially requested refugee status, send him "back to El Salvador, or even to the effect of protecting the sources of our January 7, 1981." the U.S., which has a policy of not information. The organization of public sentiment to t the inquiry Mr. Regalado was accepting refugees from that country and of sending thsm baCK4' and would pressure undemocratic governments to A aquainted for the first time with the change their ways is not a prohibited security certificate that Mr. Axworthy instead "give him some time to find an alternative refuge or haven in a third activity in Canada. Mr. Regaladocould not and Mr. Kaplan had signed about him in be deported for such activity. the fall of 1980, after he had first left country." Will the third country have to Our decision in the Regalado case that Canada. Although the certificate entails judge whether he is a security threat to it this individual should not be allowed to expulsion, even in the case of a refugee, from the attestation? Or, as Toronto remain in Canada does not diminish or . an expulsion order cannot be carried out lawyer Jeffery House asks, are we detract from the government's while a decision on a refugee claim is prepared to reveal to France or Mexico commitment to respond sympathetically or wherever Mr. Regalado may seek to to the tragic situation in El Salvador. . . pending. Meanwhile Mr. Regalado was As a matter of general policy, Canada detained in the Parthenais prison in go, information that we are not prepared to have presented to our own tribunals has not deported Salvadorans to El Montreal. Salvador since 1980. Mr. Regalado will not Only an adjudicator has the authority and courts, even in closed hearings, or to the person whose life is concerned? be forced to return to El Salvador. If he is to impose detention, if he feels the ordered deported, I am prepared to allow person in question would not appear for The purpose of the security certificate him sufficient time to locate a third an inquiry or poses a threat to public is to protect information sources. The country which will accept him and to safety. The grounds for any continued purpose of refugee status is to protect a which he is prepared to depart on a detention must be reviewed every seven refugee. This is the first timethat the two voluntary basis. have had to be weighed against one days. In Mr. Regalado's case, another. Even if we take the issue of adjudicator after adjudicator upheld the national security very seriously; even if detention with only the certificate as we take the protection of information grounds. After two months two months United Nations Convention - sources very seriously; even if we have a of offerings from many people to answer tradition of using security certificates Relating to the Status of Refugees for his conduct and of challenges that (1951) instigating the subversion by force of with the utmost care and discretion - none another government, even if true, does of which I intend to evaluate here - what is Article 31 not entail being a threat to the public at stake in the concept of asylum would EXPLUSION safety he was released. seem to tip the difficult balance enough - that it is wrong to have a law that permits 1. The Contracting States shall not expel a During this time he had been accorded refugee lawfully in their territory save on refugee status without much ado, and the fate of a refugee to be so arbitrarily grounds of national security or public decided as by Ministerial fiat. had filed an appeal of the deportation b order. If a security certificate is issued order against him with the lmmigration against a permanent resident it does not 2. The expulsion of such a refugeeshall be Appeal Board. only in pursuance of adecision reached in stand as irrefutable proof of itself. The accordance with due process of law. lmmigration Act provides for a Special Except where compelling reasons of APPOINTMENT Advisory Board which can request national security otherwise require, the Mr. Raymond Terrillon, Represen- information from the Minister and the refugee shall be allowed to submit tative of the United Nations High Solicitor General; can consult with evidence to clear himself, and to appeal to Commissioner for Refugees in government departments to indepen- and be represented for the purpose before competent authority or a person or Canada, takes pleasure in dently assess the extent to which disclosure would be dangerous; must persons specially designated by the announcing the appointment of Mr. competent authority. Douglas MacDonald as the new inform the person as fully as possible of the nature of the argument against him; 3. The Contracting States shall allowsuch Public Information Officer of the a refugee a reasonable period within Branch Office in as of March and gives him an oral hearing. Even without addressing the adequacy of this which to seek legal admission into 1,1982. Mr. MacDonald succeeds Mr. another country. The Contracting States Guy Ouellet, now Assistant measure, I would be interested to know reserve the right to apply during that Representative of the UNHCR in its why this avenue is not open to a refugee. period such internal measures as they ranch Office in Hanoi, Vietnam. may deem necessary. 1 9 But these initiative are not put THE EXPLOITATION OF POTENTIAL IMMIGRANTS forward as means by which the problem BY UNSCRUPULOUS CONSULTANTS is going to be significantly reduced, because in the areas where exploitation A Task Force Report is most extensive, i.e., abroad and in By A. Duff Mitchell private, the instruments of government control continue to be weakest. In 1981, 1047 claims for refugee status were The Problem of Control Long-term Possibilities filed by Indian nationals. Of the 400 that have But the control of unscrupulous The report also examines several Seen considered none have been accepted. immigration consultants may be largely possible courses of long-term action. "Unscrupulous travel agents'', it seems, outside the scope of the Criminal Code However, it becomes apparent that the swindled hundreds of would-be immigrants, more the government tries to control sometimes out of everything they owned, for and the lmmigration Act. Very little, if information on how to exploit Canada's anything, can be done by the Canadian activities of unscrupulous immigration refugee policy to move here. government about unscrupulous consultants, the more other problems A prayer that a plea for refuge would be consultants operating abroad, where arise. It would appear from a thorough heeded has been sold as counsel for a most abuses occur. Their operations are reading of the report that the refugee claimant's interview with a senior beyond the surveillance of Canadian government recognizes that the cost of immigration officer. government personnel and their victims government action far outweighs any For such "services" immigrants and are largely unknown. They are subject benefits that would be achieved. refugees have paid thousands of dollars. The only to the lotal lawsgnd authorities. For example, of the possible long- problem of the exploitation of potential immigrants by unscrupulous consultants Within Canada, consultants who term solutions discussed, the one with mostly involves immigrants, but refugees, express misrepresentation and fraud in the greatest potential for effectiveness because they may be in particularly the extractidn of fees, or who-provide would be setting up comprehensive desperate situations, are also very incompetent services and/or charge .-licensing of immigration consultants. vulnerable. So is our refugee determination undul; high feesforsimpleservices, can But to require all immigration consultants system. The findings of an April 1981 report in theory b& prose"cuted under the to meet standards of proficiency in order on this problem by the prolific Task Force on Criminal Code. The fact that sentences to obtain a license or else be subject to lmmigration Practices and Procedures are can be as severe as ten years' the lmmigration Act. This would raise summarized below. imprisonment can act as a general difficulties with respect to the A recent report on the exploitation of deterrent. But successful prosecutions constitutional power of the federal potential immigrants by unscrupulous are only likely in blatant casesof fraud. It government, federal-provincial consultants addresses the problem of is very hard to prove "incompetent relations and obtaining House of immigration consultants who sell services" and that fees are "unduly Commons priority for such legislation. It incompetent, fraudulent or inappro- high". Moreover, unscrupulous would present the thorny problem of consultants operate largely orally and in devising standards, especially since priate advice and other services for private. Their victims are often reluctant there is some question as to the unduly large sums of money to gullible immigrants. The report makes a number to bring charges for fear of deportation. appropriateness of the Canada Employment and lmmigration of observations and recommendations, The areas where the consultant'sservice but it can barely conceal the fact that is visible, such as representation before Commission certifying the competence of individuals who could be acting as although the problem is readily an adjudicator at an inquiry, are not opponents of the Commission in identifiable, government responses are usually where fraudulent conduct occurs. Thus criminal prosecutions are adversary proceedings of a judicial greatly constrained. In the report the term "immigration highly unlikely. nature. In addition, licensing would consultant" is used to describe Short-term Efforts involve substantial cost. Even if these individuals other than lawyers or In a discussion paper on the report, problems could be solved licensing would not address the problem of immigration officials who "hold Employment and lmmigration Minister unduly high fees. themselves out as having expertise in Lloyd Axworthy identifies some current immigration matters which will assist government efforts to control the The report invites suggestions for other potential immigrants in their activity of unscrupulous consultants. approaches. Copies of the full report are applications." "Unscrupulous immigra- Immigration officials are distributing a available from: tion consultants" are those who make a flyer abroad, warning prospective Distribution Unit practice of charging fees for immigrants of the problem. They are Public Affairs Division incompetent senices or unduly high examining with the RCMP, local police Employment and lmmigration Canada fees for simple services, or who express forces and provincial law and consumer 12th Flwr, Phase IV misrepresentation and fraud in the protection societies, what steps might Place du Portage extraction of fees. They might offer to be taken to encourage successful Hull, Quebec KIA d19 facilitate the immigration process, to rosec cut ions in Canada. I represent an applicant for refugee status, They are exploring the to bribe Canadian government officials, possibility of developing etc. They are able to operate by community resources as manipulating the vulnerability of the alternative sources of immigrant - his ignorance of Canadian advisory services, for laws and customs, his fear of example, through providing deportation, and sometimes his trust in instruction to local ethnic someone of his own language and agencies in immigration law, culture. procedures and practices. And they are trying to A. Duff Mitchell is engaged in research on collect information about public management and policy analysis for the whole field of immigra- completion of an M.P.A at Carleton tion consultants, unscrupu- University in Ottawa. lous or otherwise. "Wr were urry unhappy rn England"

STATISTICAL SURVEY

APPLICATIONS FOR REFUGEE STATUS IN CANADA R---C- l~isnsbnAppdBord: Refugee Determinations Refugee Redeterminations

iu Refugee Determinations. Efreakdown 6y fhmity UM Im Dammhd- m w- chili - canpw.d Chile 357 India lW7 I. 4QL) '0 #AlmwAL CONFEREMCE Poland 72 PDland 172 -Chile 274 63 ON THE RESElTLEMENT Czechoslovakia 41 El Salvador 129 El Salvador 174 57 Iran 41 Guyana 98 -Poland .n 141 5 AND ADAPTATION OF Cuba 35 Chile 95 lran 126 68 VIETNAMESE REFUGEES IN Haiti 32 Iran 95 Czechoslovakia 71 19 CANADA Guyana 31 Turkey 69 Turkey 71 7 Argentina 28 Peru 66 Haiti 60 2 The Canadian Federation of India 25 Ethiopia 57 Guyana 58 0 Vietnamese Associations Yugoslavia 25 Lebanon 56 Argentina 55 26 April 9 11, 1982 lraq 20 Guatemala 56 Ethiopia 54 5 - Turkey 19 Czechoslovakia 56 Cuba 51 38 Y.M.C.A. El Salvador 19 Jamaica 55 Peru 49 1 180 Argyle Street, Ottawa Jamaica 46 0 =Statistics tor 1978 include Aoril - Dece,mb er onlv:. i.e.. the period followi na-. the woclamatlon of the Immroratron -~. Act. 19761. (613) 232-9644 *.Fivecases heard in 1978 had not beendecidedat the timeof thecompilation of therepotion that year, so if they were pos~tlne they are not included in this statistic. Source: Refugee Status Advisory Committee and Immigration Appeal Board.

Refuge IS dedicated to encouraging assistance to refugees, by provldlng a forum for sharing lnformatlon andopmion on Canadlan Editor: and international lsauespetialnlng torefugees. It ispublishedfivetlmesayear. InSeptember.November. January. MarchandMay. Kristin Hanson It is a non-~rofit.inde~endent newsletter iup~rtedby Wants from the Canadin Foundation for Refugees. Wintano. Operation Editorial Board: Lifeline, and the ~anadaEmployment and 'lmmigration Commission; by private donations; and by voluntaty sub&iption Stuart Beaveridge. Victoria payments of $10 a year. It is a forum for discussion and theviewsexpressedin it do not necessarily reflect thoseof its funders, staff Douglas Cohen. Montreal or~ditorialBoard: Claudio Duran, Toronto Submissions of articles under 2.000 words, letters, news items, facts, quotes, suggestions, announcements, drawings. Arie van Eek, Burlington photographs,documents and summaries of documents are invited. All material in Refuge may be reproduced without permission Donald Ferguson. Toronto unless copyrighted or otherwise indicated. Credit should be given to the author or source if named. James Hathaway. Moncton Michael Pitman. Toronto Special thanks fo Howard Adelman lor hrs assistance 117 the preparation of this issue. Linda Weigl. Regina Thanks also to the artists of Dreadnaught Cooperative Inc., Toronto, for their donation 01 our logo design. Typesettrng and Layout lSSN0229-5113 F~veSeven Nme Des~gn

Postage paid at Scarborough. Ontarlo CANUMS NATlOrWL MWSLElTLR ON REFUGES under Second CkuMail Registration No. 5512 REFUGE 8 York St., 2/F.. Toronto, Ontario M5J 1R2. Vol. 1, No. 7

CANARAIS NATK)NAL NLWSLETTER ON REFUGEES REFUGE

In November of 1981 Employment and lmmigration Minister Lloyd Axworthy released a report by the Task FEATURED IN THtS ISSUE.. . Force on lmmigration Practices and Procedures dealing IMRE ROSENBERG ...... 3 with Canada's refugee status determination process. A An interview with a man who has moved summary of the report appeared in the last issue of refugees, been a refugee and now advises Refuge. In February of 1982 the Minister convened a the Minister on who is a refugee National Symposium on Refugee Determination in By Robert Marshall Toronto, to discuss some of the recommendations in the report. SOMETHING SHORT OF JUSTICE ...... 2 A comment on the refugee determination The report and the Symposium drew together a great process deal of critical thinking about our legal and humanitarian By James Hathaway obligations to persons in Canada requesting protection as refugees. Many countries - in Central America. Southeast ' FROM FAIRNESS IN SPIRIT TO FAIRNESS Asia, southern Africa - have recently proved unable or IN LETTER ...... 5 unwilling to adequately protect refugees from physical A comment on the new guidelines for the danger. As close to home as in the United States - a Refugee Status Advisory Committee country traditionally hospitable to refugees - many Latin By Howard Adelman American refugees are in danger of being sent baok to the THE REFUGEES WE DON'T WANT TO KEEP ... 8 countries from which they fled. The Task Force and the Some background to the case of Victor Symposium themselves have their origin in Regalado shortcomings, or at least perceived shortcomings, in our own By Kristin Hanson fulfillment of our obligations. Yet at the same time, the principle of the responsibiltty of the international tias a right to an oral hearing to defend his claim, and if so, community to protect refugees is being taken more and at which stage in the process. James Hathaway provides more seriously. This issue of Refuge is devoted to the one perspective on this question. Other insights are subject of refugee protection in Canada, and attempts to provided by one of the members of the Refugee Status share some ideas on the subjects discussed at the Advisory Committee, lmre Rosenberg, who was once a Symposium. refugee himself. Franz Krenz of the Office of the United Nations High Normally a person in Canada who is determined to bea Commissioner for Refugees noted in his address to the refugee is then admitted to Canada as a landed Symposium that the definition of a refugee requires a immigrant. But there are exceptions. The most great deal of interpretation, since it contains such controversial relate to national security. These are subjective elements as "persecution", "fear", and "well- discussed in light of a recent cause-celebre, the founded". At the Symposium the Minister issued deportation order against Victor Regalado. guidelines for its interpretation. These are printed in this This issue also inaugurates a change in Refuge to make issue for easy reference, together with a commentary by it possible to discuss refug~epolicy issues in greater Howard Adelman. depth. Refuge will be published in a longerformat but less Fulfilling our obligations to refugees in Canada also frequently - in September, November, January, March requires that we have procedures to determine whether a and May. We look forward to your comments and person falls within the definition. Much of the report and contributions. / the Symposium dealt with these procedures, and w&wk-- especially with thequestion of whether a refugee claimant x2zz+ 7