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During
Summer
2010
a
boat of
reputedly Tamil refugee claimants arrived
in Vancouver. Within the
accounts was
a suggestion that the boat had originated
in Thailand. Supposedly,
smugglers were
involved. By accounts from Vancouver NGOs
early September, the refugee
claimants were being examined without
access to NGOs so their treatment
was of
concern but largely unknown. Presumably,
this treatment will at some
point see
the light of day. After repeated
rumblings, in late October the
government
introduced proposed legislation, Bill
C-49, to “crack down” on human
smugglers. Toronto refugee law
expert Lorne Waldman wrote
in the Star Oct 28th the Bill
tabled: “misses
the
mark.
Instead
of
focusing on the
real problem — the human smugglers who
exploit people for a profit — it
directs
the reprisals at their victims — the
refugees fleeing persecution.” Waldman
noted
the
Bill
did almost
nothing to advance its stated purpose. The
only part to addresses human
smuggling
provided mandatory minimum sentences. Yet
studies have shown that such mandatory
sentences
are not effective in deterring criminal
activity. They can only be less
effective for human smuggling because the
perpetrators use proxies.
Since they never
set foot in Canada they never face the
sentence. At the same time the
bill made
it easier to convict people who innocently
assist refugees to be
charged for
human smuggling. The
Bill
went
beyond the supposed
purpose of responding to
boat arrivals.
The language was broad enough to single
out for rights restricting
treatment any
two or more asylum seekers who
arrive together by land, sea or air. The
minister
simply had to designate them as an
“irregular arrival.” The wide
discretion and
ambiguity allowed almost any asylum
seekers who come to Canada to be
designated
and subject to the sanctions. All
designated faced mandatory detention
for 12
months without review, even women and
children. Those subsequently
found
Convention Refugees would not get the
travel document required under
the 1951
Convention for 5 years and so cannot
travel anywhere. They would be
barred from applying for
permanent residence for five years. This
would slow settling and
rob
them of their right to family life by
preventing family reunion during
the
five-year period in addition to the
usual years after an
application if made. Worse,
hidden
in
the
legislation to
deal with smugglers were measures that
affected all non-citizens. Any
non-citizen, even a permanent resident
who has lived in Canada for years, had to
be detained while the
minister
investigated a suspicion that they might
have committed a criminal
offence
outside of Canada. The Bill
also eliminated the right of appeal
against certain decisions made by
the
Immigration
and Refugee Board. That right was given to
refugees as part of the
recent June
2010
parliamentary compromise.
Waldman noted
the measure removing an appeal applied
even when such a person was not
part of an
irregular
arrival. To
my
mind
the
"real"
solution is not this kind of legislation
which should be scrapped.
Evidently
the better solutions come from
international cooperation among States.
Yet so
far, the international initiatives have
focussed only on agreements to
prosecute smugglers. Steps of
international agreement for better
sharing the
load of asylum seekers amongst attractive
developed countries are
underdeveloped. The international regime
goes only so far as to place
obligations on a country like Canada once
a refugee manages to appear
there in
some manner to claim the international
status. The manner of
arrival must
be overlooked if the person is indeed a
refugee. Attempts
to
introduce international sharing
of asylum seekers have gone no
further than the framework in
Conclusion
15 agreed to by governments comprising the
Executive Committee of the UN High
Commissioner
for Refugees program in the late '70s. As
Waldman says, the
victims of the
law as proposed in the tabled Bill C49
are refugees and their
fundamental rights as
human beings like freedom from
arbitrary or mandatory detention or
fair
trial. We
diminish ourselves as human beings and
as a nation when we legislate
such laws.
Human beings deserve better. Let’s
hope that refugee rights can somehow
emerge intact from
the messy
political processes yet to come. TOP Click:  |