Tom Clark

Rights Refugees & Terrorism
March 2007

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I had thoughts inspired by "Canada’s Inadequate Response to Terrorism: The Need for Policy Reform", put out by the Fraser Institute, February 2006. In contrast with the implications of the Frazer Institute paper, there is little evidence that controls over the entry to and the departure from Canadian territory of non-citizens have been a significant factor in international terrorism. There is almost no rational connection between the lists of alleged terrorists and immigration law and practices. In particular, though unfair and dysfunctional, the refugee determination system plays little role in either trafficking of human beings or in international terrorism.[1] Rather, the dysfunctional aspects of the immigration system are entirely to the disadvantage of those individuals and their families who are seeking asylum as promised under international law and the treaties Canada has ratified.[2]

The problems in the refugee determination system are known to refugee serving agencies. They include:

a lack of sufficient decision makers on the Refugee Board,
patronage governs the final selection of decision makers – the Board Members,
subtle pressure influences decision-making as documented in a Federal Court of Appeal decision,
there is no “formal reconsideration” of negative decisions by the refugee status authority,
even the limited appeal legislated into law is not carried out.

Legal and policy changes in 2002 reduced key legal safeguards for refugees and non-citizens:

refugee status hearings involved only one member of the Refugee Board rather than the earlier benefit of the best of two members;
non-citizens were deprived of access to the Canadian Intelligence Service Review Committee for appeal of an suspicion or allegation of risk to national security;
the requirement of obtaining leave to appeal on points of law before any access to courts under the immigration and refugee legislation was extended;
Canada’s overseas immigration officials intercept the travel of would-be asylum seekers en route to Canada at ports where they catch boats or planes for Canada;
the “Safe Third Country Agreement” with the US allows a number of asylum seekers to be returned to the US on the presumption it is safe for them to be returned there.

All these problems are entirely to the disadvantage of the refugee seeking recognition for his or her international status as promised by treaties ratified by Canada. There is no clear link to any national security benefit.

The Frazer Institute paper provides little discussion of the numbers of immigration control employees and their powers or border control employees and their powers or of the numbers of CSIS employees and their powers. Yet surely it is here that creative policy and practices hold potential for responding to a threat to the security of Canadians and Canada’s national institutions. In fact there is little legal or financial constraint on the actions of control and intelligence activities. Immigration proceedings are highly discretionary and any grants of permanent resident status or even citizenship can be reversed if new security-related evidence should come to light. In contrast, it is reasonable to suppose that fairer trial procedures, which would also benefit asylum seekers, could improve efforts to identify threats to security. Testing suspicions in the cross examination of a more court-like process, as NGOs have proposed, could save a lot of wasted time and work.

The inuendo behind the call for policy reform is that refugee claimants and other non citizens ordered incarcerated or removed from the country should not benefit from international treaties or the normal standards of fair trial and habeas corpus. Yet as I have suggested elsewhere, it is simply a myth to suppose that incarceration and expulsion of non-citizens is the solution to all manner of social policy problems in Canada. It is, of course, true that finding that a person is a refugee makes their removal from the country more difficult. That is precisely the intent of the treaty which Canada ratified about protecting refugees! However, international refugee status cannot be granted to persons who are serious criminals or who pose serious security risks to Canada. The separate and distinct obligation to protect an individual from torture that is the foreseeable consequence of expulsion has no exceptions. However, here a stringent test of a serious probability of torture must be satisfied. Canada freely accepted this obligation when it ratified the Convention. In practice, the number of individuals which can satisfy these conditions appears to be very small. In addition, these individuals “enjoy” the greatest publicity, surveillance and notoriety whether or not there is a valid threat to anyone’s security in Canada or to Canada’s security. So this is not an area where policy change can be expected to have a major impact on terrorism.

The answer may well lie in policies distant from those implied by the Frazer Insititue thinking. There is a great anger in parts of populations across the world against unfairness, inequality and the sense that development trade and finance ignore the affected populations. It may well be that promoting greater fairness and justice in international affairs, including immigration, can offer alternatives to the nihilism and terrorism. This avenue is open to a middle power like Canada. Doing that in no way prevents Canada from participating in international work to genuinly protect the world from acts of terrorism. But it does require Canada to be part of a more explicit commitment among democratic states to an international rule of law and to international human rights standards in general. The rights and rule of law would need to extend to refugees and other non-citizens in particular.

The Frazer paper speculates on possible reasons why a government might not choose to rectify the problems as the Frazer Institute’s author sees them. Similarly, it would be reasonable to reflect on reasons why a government might not choose to rectify problems in immigration and refugee affairs as this essay sees them. Cost, the inappropriate rationale used almost continually since the 1960s to justify limiting legal safeguards for non-citizens, is surely not a factor in 2007 when there are revenue surpluses and tax breaks for individuals and corporations. There are reasonable grounds for believing some of the following obstacles for the immigration authorities:

fear of attracting an obligation to protect refugees to an extent the Canadian authorities believe is greater than that of other like-minded States;
resentment by Canada to be put in the position of having to protect an individual because another State chose to single that individual out for persecution;
agreement with like-minded States to follow common policies even though these are know to be in violation of human rights obligations;
the influence of interest groups with resources which continually make assertions associating refugees and asylum seekers with a range of largely unrelated policy challenges.

The Frazer Institute in its paper spoke of interest groups as a reason limiting the government in effecting changes. The Frazer Institute itself is an interest group gathered together by a vision of a libertarian global economy. The financial resources available are considerably greater than those available to the Canadian Council for Refuges. Its 2006 Annual Report cites a budget of almost $11,000,000 coming 55% from foundations like its own Frazer Institute Foundation, 33% from corporations and 12% individuals. Yet "measuring" is part of the Institute's mission. Maybe some honest measuring can begin? Maybe the Institute can simply drop immigration work marginal to its vision?

In summary, defending Canada against the threat of terrorism could require improving the extent to which Canada is a force upholding international rights and a rule of law in the world. That extends to improved fairness and rights for refugees and non-citizens when Canada is exercising its control over who is allowed to enter its territory and to remain. Scrapping or fixing rights restricting measures like interdiction of refugees overseas and the Safe Third Country agreements with the US, could improve Canada’s situation and the world.

[1] Critics claiming deficiencies in immigration areas have come largely from: (a) self serving conservative think tanks; (b) audit agencies confined to examining the stated policy intention versus the actual result; (c) excerpted sections of more general reports; or (d) sources lacking insights into immigration practices know to non-governmental refugee serving agencies. For example, sources used by the Frazer Institute paper included the Canadian Security Guide Book released in 2005 by the Standing Senate Committee on National Security and Defence as well as reports by the Auditor General of Canada (Auditor General, 2004a, chapter 3; Auditor General, 2005, chapter 2; a presentation on foreign terrorist groups in Canada prior to September 11, 2001 (9/11) by the head of the Canadian Security Intelligence Service (CSIS), to a special committee of the Senate in June 1998.

[2] The principle obligation affecting expulsion stems from non-refoulement in customary international law and in the 1951 Convention Relating to the Status of Refugees. This requires that a refugee may not be returned to the borders of a state where his or her life or freedom would be threatened. A related but distinct obligation not to return any individual to a state where there is a serious probability of torture comes from the 1980 Convention against Torture. There are additional constraints on entry and expulsion stemming from the (International) Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the human rights obligations of the American Declaration of Rights and Duties of Man which apply to members of the OAS.

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