Canada's immigration system lacks heart, critics say

Some critics say the compassion and humanitarianism that once lay at the heart of Canada's refugee system no longer exists.

CHRIS SETO / GUELPH MERCURY FILE PHOTO Stephen Lewis co-chairs a new group, the Jewish Refugee Action Network, designed to fight Ottawa's changes to refugee laws.

The Toronto Star By: Debra Black Immigration Reporter, Published on Fri Jun 28 2013 To many of the worlds refugees Canada represents a place of safety and asylum. But closer to home, some critics say the compassion and humanitarianism that once undergirded Canadas refugee system no longer exists. In 1986, Canada and its citizens were awarded the United Nations Nansen Refugee Award for its collective work for the cause of refugees. Other winners have included Eleanor Roosevelt and King Juan Carlos of Spain. Would Canada win that same award today?

Its unlikely, suggests Peter Harder, who served as deputy minister of immigration from 1991 to 1995, and founding executive director of the Immigration and Refugee Board from 1987 to 1991. In Ottawa today, there is now a total preoccupation that we do not do anything systemically that would provide the Americans with an excuse to tighten our border a hypersensitity on security risks, movement of people and refugee flows, said Harder, now a senior policy adviser at Dentons, an international law firm. Canadas immigration policies have also come under criticism as the federal government tightens rules and regulations on who can come to Canada and under what circumstances. One of the few places where any compassion is left is at the Immigration and Refugee Board, some say, but even that might be wearing thin. Cuts to refugee health care. Changes to rules for refugee applications. A bill todeport permanent residents convicted of criminal activity. A list of governmentdesignated safe countries (from which its presumed a refugee claimant is unlikely to be legitimate). A stricter interpretation of immigration qualifications. And a growing number of deportations from Canada, more than doubling from 8,805 in 2000 to 18,859 removals by 2012. All these point to a systemic change in the countrys immigration and refugee system, resulting in a loss of heart or compassion, some suggest. Immigration Minister Jason Kenney said nothing could be further from the truth. In every respect, we are a model of generosity, he said in an interview. Find me one other country that is more generous with respect to immigration and refugees. We have enhanced our fairness and generosity of the immigration and refugee system at the same time cracking down on abuse, said Kenney. Were increasing by 20 per cent our target for the resettlement of convention refugees from around the world. Weve increased by 20 per cent the integration support they receive. But some believe otherwise and are pushing back. Stephen Lewis, former Canadian ambassador to the UN and a special envoy to Africa, and his wife and former Toronto Star columnist Michele Landsberg are co-chairs of a new national group, the Jewish Refugee Action Network, designed to fight Ottawas changes to refugee laws. The organization, made up of Jews and non-Jews alike, hopes to restore Canadas

humanitarian tradition and democratic principles to refugees. All of us remember what happened to Jews where Canada is concerned, said Lewis, referring to the refusal by Canada to admit Jewish refugees trying to escape Nazi Germany and the Holocaust. We dont want to see it repeated against other groups. Its deeply offensive and we feel a moral imperative to speak out. We feel the Immigration Act the way its drafted is extremely prejudicial and unfair. Kenney rejects the comparison. To suggest that Canadas asylum system, which is regarded as a model for the world by the United Nations, in any way resembles the anti-Semitic immigration restrictions of the 1930s is odious and brings discredit to those who would make this suggestion, he said. The newly minted organization is asking for changes that include an end to the cuts in health care for refugees that Lewis describes as distressing, the establishment of an independent panel to assess human rights situations in a given country, and the removal of countries such as Hungary and Mexico from the safe country list. A recent Federal Court decision dismissing an application for judicial review in the case of deaf Russian painter Dmitri Smirnov, who applied to become a permanent resident under the Canadian Experience Class, is an example of the ever-tightening interpretation of qualifications to be allowed into Canada, said Peter Steida, an Ottawa immigration lawyer. Steida handled the case, which was decided by Justice Richard Boivin. His client has left Canada and is now in Russia. But Steida believes the original decision by Citizenship and Immigration Canada to reject Smirnovs application wasnt a fair application of the law or the spirit of the law. The original decision was, in his view, too technical an interpretation of the regulations surrounding the language skills. According to the CIC, his client had failed to meet English-language qualifications, even though he had met the qualifications of a language test in American Sign Language given to him by the Canadian Hearing Society. The original decision maker didnt give that enough credit, Steida said. The court disagreed. Kenney said the case turned on the fact he failed the written English test. And the

court agreed that people with hearing impairments are not disabled with respect to reading and writing. And so we have a consistent standard we want to make sure our economic immigrants have a degree of official language proficiency, because research tells us thats the most important factor in their economic prospects. Harder suggests that what he sees as the systems growing lack of compassion is due to three factors: The first thing is the post-9/11 culture of security trumps everything, he explains. Second is creation of the Canada Border Services Agency under the Liberals in 2003 and removal of immigration enforcement from Citizenship and Immigration Canada. When he worked at Immigration, Harder used to tell officers they had to balance compassion with enforcement. But he fears that balance doesnt happen anymore because there has been a change of culture. The third factor is a change in government, he said. The Conservative party wanted to make inroads in ethnic communities, and at the same time demonstrate it was tough on queue-jumpers. Kenney is quick to point to Citizenship and Immigration statistics and analysis to suggest his critics are dead wrong. Canada has the highest levels of immigration per capita in the developed world and the highest sustained levels of immigration in Canadian history at a time when most other western and developed countries have been dramatically reducing immigration levels, the minister said. As for asylum claims, he said Canada has seen a significant increase following reforms his government put into place. Last year, for example, the acceptance rate for asylum claims at the Immigration Refugee Board Refugee Protection Division was 38 per cent. Typically it has bounced around the low 40s. This year so far the acceptance rate at the IRB has been 54 per cent, as I predicted, because we have fewer false claimants coming to Canada. Kenney added: I think our system is very fair because people have multiple opportunities to present humanitarian reasons why they should stay. Toronto immigration and refugee lawyer Lorne Waldman sees daily what he describes as the lack of compassion in the system. He, too, attributes its beginnings to the 2001

terrorist attacks in the U.S. and the creation of the Canada Border Services Agency. That move precipitated a change of heart, Waldman maintains. Gone was any sense of empathy that came from working within the department. The separation of responsibilities was the worst thing that happened to the immigration system, he said. Now there is an entire cohort of officers in border services who have had no exposure to immigration, Waldman said. They dont know or understand that there are exceptional cases that warrant compassion. Their sole job is to effect removal. Whats more, CBSA officers are under no obligation to wait for a humanitarian decision rendered by Immigration or the Immigration and Refugee Board before they execute a deportation order or remove someone. On this point, Kenney said: In most cases people have benefited from anywhere from four to seven administrative judicial and quasi-judicial reviews of risk, of humanitarian and compassionate considerations before theyre subject to removal. If anything, I think our system errs on the side of generosity. Waldman would like to see the officers who execute removals and deportations be given training about Canadas obligations under the Charter of Rights and Freedoms, international law and Canadas humanitarian and compassionate policies. A spokesperson for CBSA responded in an email statement. Amitha Carnadin wrote: CBSA officers, including our inland enforcement officers, are highly trained professionals who treat all individuals with dignity and respect at all times. Our officers are compassionate to the needs and concerns of individuals who are being removed, and carry out their work in a respectful and professional manner. Professionalism and strong ethics are cornerstones of the training that the CBSA provides to all of its officers, including removals officers. Waldman points to the case of one of his clients, Ratnam Appudurai. The 78-year-old Sri Lankan woman has been diagnosed with depression and has serious health issues. She was awaiting word on an application for leave and judicial review while the CBSA was planning to deport her. The Federal Court and Justice Mary Gleason ruled in favour of a stay of her deportation. Gleason wrote in her decision: There is a serious issue in respect of her pending application for leave and judicial review because the officer failed to address the

arguments the applicant made based on the Canadian Charter of Rights . . . There is also a solid argument that the officers determination regarding the availability of care for the applicant in Sri Lanka may be unreasonable in light of the record before the officer. Appudurais case isnt the only one Waldman has seen in recent years. Were constantly seeing cases like this. Husbands and wives and children being separated with the prospect of reunification years down the road with no regard for how its going to affect the kids. This is the kind of situation five or seven years ago just wouldnt happen. He, too, invokes the memory of the rejection of Jews trying to flee the Nazis. Immigration and refugee lawyer Barb Jackman points to a case of a 30-year-old Sudanese refugee claimant who has spent $40,000 so far fighting to remain in Canada. His case for asylum was initially rejected because of a speech he gave during a student protest against the Sudanese government and the genocide in Darfur. He was labelled a terrorist. The Federal Court granted him leave to seek a judicial review. But he has been back and forth in court twice and just had a deportation order stayed in June. The court ruled that a serious issue arises from the assessment of the risk facing the applicant if he returned to Sudan and if thats the case it follows that he would experience irreparable harm by having to face that risk before its adequacy could be considered by the Court on an application for leave and judicial review. It could be the autumn before the judicial review is heard. Said Jackman: We have entire communities that are branded as terrorists: Tamils, Sikhs, Palestinians, a student from Darfur. I went to a peaceful demonstration of students to the United Nations building in Khartoum condemning government practice in Darfur, explains the Sudanese refugee claimant who doesnt want his name used. Shakespeare once said: Lets temper justice with mercy. Ive not seen mercy here since day one. Ive seen nothing but cruelty. The head of the Sudanese government is wanted for crimes against humanity in international court . . . and the Canadian government still insists anyone who is opposed to this government or defending themselves is considered terrorists.

Kenneys response: The Sudanese fellow came to Canada in 2007. He was found inadmissible by the IRB, not by CBSA or me but by an adjudicator at the IRB. It was redirected by the Federal Court. A fresh decision was taken he was inadmissible. That was unsuccessfully appealed by the Federal Court . . . He had a pre-removal risk assessment by a highly trained unfettered public servant at CIC. It came back as no risk assessment. And so hes had multiple considerations.