Refugees
29 July, 1992
AI Canada's Concerns with Respect to Bill C-86
Mr. Blaine Thacker, MP
Chairman
Legislative Committee on Bill C-86
House of Commons
Ottawa, Ontario
K1A 0A6
Dear Mr. Thacker:
Thank you for providing the Canadian Section of Amnesty International with the opportunity to address the Leglislative Committee on Bill C-86. As you many know, Amnesty International is an international human rights organization which works for the release of prisoners of conscience, being those who have been arbitrarily detained for the non-violent expression of their beliefs, and is opposed to torture and the death penalty in all circumstances. Accordingly, Amnesty International is opposed to the forcible return of persons to countries where they face the risk of arbitrary detention, torture or execution.
Amnesty International makes representations to the government in specific cases when we believe that an individual is at risk, seeking the government's intervention so as to prevent the individual's removal from Canada. As well, Amnesty International is concerned with legislation which could result in the return of individuals to situations of risk.
With regard to Bill C-86, the Canadian Section of Amnesty International has a number of concerns. These concerns arise with regard to the following provisions: "safe third country"; the increased powers of Senior Immigration Officers; eligibility for refugee determination; transport company liability; detention review; the presumption that refugee hearings will now be open to the public; the need for unanimous decisions in certain categories of refugee claims; appeal procedures; and powers given to the Minister to enter into international agreements.
I. ACCESS TO REFUGEE DETERMINATION
Amnesty International is concerned that several provisions in Bill C-86 restrict access to refugee determination in Canada. The Canadian government has an obligation to ensure that any measures adopted to control immigration are compatible with international standards concerning the protection of refugees. Restrictions on entry which obstruct the flight to safety of individuals in need of protection increase the danger that such people will be subjected to human rights violations. Amnesty International calls on governments to take practical steps to ensure that barriers and procedures adopted to control immigration do not obstruct refugee claimants from gaining access to the country's refugee determination system.
A."Safe Third Country"
Amnesty International opposes refugee claimants, who may be at risk of human rights violations if returned to their own country, being sent to a third country unless the government sending them there has ensured that in that third country they will be granted effective and durable protection against refoulement, which should normally include legal protection.
For a third country to be considered "safe", that country must ensure that refugee claimants have access to a refugee determination procedure which deals with the merits of their claims. The country must be a signatory to and respect the spirit of the 1951 United Nations Convention relating to the Status of Refugees (hereinafter, "the Convention"), and must have fair refugee determination procedures.
Procedure
Bill C-86 provides the Governor-in-Council with the power to make regulations prescribing a list of countries which comply with Article 33 of the Convention. Amnesty International is concerned that the process established under s.114 will not fully ensure that effective and durable protection will be available in prescribed countries.
The procedure does not set-out any requirement for there to be consulation with inter-governmental and non-governmental agencies which have developed expertise in dealing with refugee and human rights issues. Such consultation would ensure that detailed, up-to-date information is considered and would lessen the risk of political factors influencing the process. Amnesty International proposes that s.114(8) of the Immigration Act (hereinafter, "the Act") expressly require that the Governor-in-Council consult with the United Nations High Commissioner for Refugees (hereinafter, "UNHCR") and other non-governmental human rights and refugee organizations prior to establishing a list of prescribed countries, and that such consultations take place again when consideration is being given to renewing the prescription of any country.
While the Governor-in-Council is given the power to compile a list of prescribed countries, it is only the Minister, by virtue of s.46.01(2), who has the power to declare that a prescibed country may be unsafe for certain "classes of persons". Amnesty International believes the power given to the Minister in s.46.01(2) to suspend application of a prescibed country is an important one so as to ensure that immediate changes can be made to the list of prescribed countries if conditions change quickly. However, Amnesty International is concerned that it is only the Minister who can declare countries to be partially "safe". Amnesty International believes that there are often cases where countries which might well be prescribed under s.114 are unsafe for particular classes of refugee claimants. For example, Amnesty International is gravely concerned about the return of large numbers of Haitian refugee claimants to Haiti through an interdiction at sea program carried out by the United States, which does not provide access to refugee determination. Amnesty International believes that leaving the power to exempt certain classes of refugee claimants with the Minister increases the possibility that decisions will be made on the basis of political and foreign-policy concerns. Amnesty International proposes that s.114 also provide that the Governor-in-Council, through regulation, be allowed to exempt certain classes of refugee claimants from prescription in certain countries. This would then be subject to the consultation requirement outlined above.
Bill C-86 instructs the Governor-in-Council to take four factors "into account" when deciding whether a country should be prescribed. Amnesty International is of the view that the criteria to be applied in determining a country to be "safe" should be mandatory and not simply discretionary factors to be taken into account. Section 114(8) of the Act should provide a list of requirements which must be met before a country is prescribed.
S.114(9) of the Act sets out a requirement that there be monitoring of the countries which have been prescribed. For greater certainty, Amnesty International would propose that this sub-section specify that a country will be removed from the list at any time if concerns develop regarding any of the criteria laid out in s.114(8).
Substance
Amnesty International believes that the factors elaborated in s.114(8) are inadequate to ensure that effective and durable protection will be available in prescribed countries.
Amnesty International agrees that, as provided in s.114(8)(a), the country must be a party to the Convention. Amnesty International would propose, in addition, that the country must also respect the Convention, in spirit and in fact.
Amnesty International is of the view that s.114(8)(b) is unclear in its reference to "the country's policies and practices with respect to Convention refugee claims". In order to ensure that the third country will be a source of effective and durable protection, Amnesty International proposes the following wording for s.114(8)(b):
the country's laws or practices provide that all claimants or claimants of a particular class of persons of which the claimant is a member would have the right to have a judicial determination in that country as to whether the claimant is a Convention refugee.
Amnesty International is concerned that s.114(8)(d) states that the existence of an agreement between Canada and the proposed third country is not a requirement for that country to be prescribed. Amnesty International blieves that the existence of a written agreement ensuring that refugee claimants denied access to refugee determination in Canada will have full access to the refugee determination process in a prescribed country is a fundamental safeguard and should be mandatory.
B.Increased Powers Provided to Senior Immigration Officers
Bill C-86 provides Senior Immigration Officers with the power to determine whether or not an individual claiming refugee status at a port of entry is eligible to have his or her claim referred to the Immigration and Refugee Board. These decisions will be made after an interview at which there is no right to counsel and no possibility of appeal.
Amnesty International is of the view that the decision as to whether an individual is eligible to make a refugee claim in Canada must be decided by an independent body. Senior Immigration Officers are employees of the Immigration Commission, which is given the power to take on an adversarial role in refugee hearings, in effect objecting to an individual's refugee claim. They cannot be said to play an impartial role. Decisions of eligibility must be impartial, in both appearance and substance.
Many of the issues which arise in an eligibility interview involve complicated facts and refugee law issues. Section 46.01(1)(a) provides that a claimant is ineligible if already recognized to be a Convention refugee in another country. That is a complicated issue which requiring a sophisticated analysis and understanding of the refugee laws and policies of other countries. Section 46.01(1)(b) declares a person to be ineligible if coming directly or indirectly from a country prescribed to be safe. Exempted from that provision however are those who individuals who were in the prescribed country for the sole purpose of joining a connecting flight to Canada. Evaluations as to what is a "sole purpose" and what is a "connecting flight" again involve discretionary assessments, which should be made by an independent body, with legal representation.
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C.Eligibility for Refugee Determination
Aside from the fact that eligibility decisions are to be made by Senior Immigration Officers, Amnesty International has concerns regarding a proposed changes to the eligibility criteria.
- Granted Convention Refugee Status in Another Country
- Criminal and Security Exclusions
Amnesty International is concerned that Bill C-86 appears to eliminate the possibility that an individual who has been recognized to be a Convention refugee in another country might fear persecution in that country and need to make a refugee claim as a result.
The Act presently provides, in s.46.01(1)(a), that individuals who are recognized to be Convention refugees elsewhere are ineligible to have their claims heard in Canada. However, 46.01(2) allows such a claim to be heard if their is a credible basis to an individual's fear of persecution in the country of refuge. Bill C-86 will eliminate that proviso, and thus exclude all individuals recognized to be Convention refugees in other countries from refugee determination in Canada. Amnesty International believes that the Act should leave open the possibility that an individual may have a well-founded fear of persecution in a country which has provided him or her with Convention refugee status. If an individual claims to have a fear of persecution in that country, he or she should be provided with an opportunity to demonstrate the well-foundedness of that fear.
Amnesty International is of the view that the provisions in s. 46.01(1)(e) exlcuding from refugee determination those individuals who have been found to be criminal or security threats as defined in specified sub-sections of s.19(1), are broad and over-reaching in their scope. Amnesty International believes that security and criminal exclusion clauses must be drafted very carefully, so as to avoid the danger of refoulement.
Most notable in the potential to exclude many legitimate Convention refugees is s.19(1)(f), particularly subsections (i) and (iii). Those whom there are reasonable to grounds have engaged in acts of subversion against democratic governments are excluded. Subversion against government, even "democratic" government, is often the type of activity which eventually forces people to flee. The acts of subversion often serve as the basis of refugee claims, evidence put forward to establish a well-founded fear of persecution for reasons of political opinion.
Also excluded are those whom there are reasonable grounds to believe are or were members of organizations that there are reasonable grounds to believe are or were engaged in espionage, subversion or terrorism. Again this strikes at the heart of many refugee claims. It is even further reaching, in that the reasonable grounds are not applied to the individual, but to the organization. Carried to its extreme, this provision would exclude an individual who was a member, perhaps thirty of forty years ago, of an organization which no longer exists, but which did, when it did exist, carry out acts of subversion. That will be the case regardless of what activities the individual was involved in and, seemingly, even if the individual objected to that particular part of the group's activities.
The definition of terrorism proposed by Bill C-86 is broad and extends to activities in support of the threat of acts of serious violence against persons or property for the purpose of achieving a political objective. Again, this is often the very nature of the activity which leads an individual to flee and forms the basis of his or her refugee claim. Refugee determination decisions recognize this, as does the UNHCR Handbook (paragraphs 175-180).
In general, Amnesty International is concerned that the exclusionary provisions, as drafted in s.19(1) are broad and may result in the refoulement of individuals in need of protection. Many of the activities included describe acts which are often carried out in the process of political agitation and opposition and which are frequently recognized as valid grounds for advancing a claim for Convention refugee status. As well, the provisions give rise to exclusions based, not on reasonable grounds of having committed such acts, but rather on reasonable grounds of being associated with groups which have done so. Exclusion from refugee determination is a very serious matter for someone fleeing human rights violations. It must be based on individual, not group concerns. Finally, there must be measures provided so as to ensure that if excluded from refugee determination, those who may face arbitrary detention, torture or execution if returned to their countries of nationality are not removed from Canada.
D.Transport Company Liability Provisions
Amnesty International believes that provisions holding transport companies liable for bringing into Canada individuals not in possession of valid visas and travel documents are incompatible with a full commitment to the Convention. Such provisions obstruct the flight to safety of individuals in need of protection. Such provisions circumvent the object and purpose of the Convention. The Convention becomes a meaningless document if individuals are not able to make it countries where they can seek refuge. Bill C-86 widens the obligations imposed on transport companies, including holding them responsible for the destruction of disposition of travel documents during a voyage and substantially increasing the fines levied for failure to properly check travel documents.
At the very least, transport companies should not be held liable if an individual is found to be a Convention refugee. However, even that approach is problematic in that airline personnel would then be called upon to make assessments as to the validity of an individual's refugee claim before allowing anyone without valid documents to board a vehicle or airplane. Amnesty International believes that unless the government can ensure and adequately demonstrate that transport company liability provisions do not obstruct effective access to refugee determination in Canada, the provisions should be repealed.
E.Detention
Amnesty International calls upon governments to demonstrate legitimate reasons for any detention of refugee claimants, in accordance with international standards and by means of a prompt, fair, individual hearing before a judicial or other similar authority whose status and tenure afford the strongest possible guarantees of competence, impariality and independence.
Amnesty International is concerned with the detention of refugee claimants because of the potential effect of detention in deterring individuals of concern to Amnesty International from seeking and obtaining protection. Notably, detention may impede the preparation of a refugee claim, it may have debilitating effects of claimants causing them to abandon their claims, and it may deter others from even attempting to obtain protection, knowing that detention may well await them on arrival.
Bill C-86 changes the time period within which the continuing detention of refugee claimants must be reviewed. After an initial review, conducted within the first 48 hours, s.103(6) of the Act currently provides that a review be held at least once in every seven day period thereafter. That requirement will be changed from seven days to thirty. Amnesty International believes that thirty days is too long to keep a refugee claimant in detention pending review of the reasons for the continuing detention. Amnesty International is of the view that the present requirement for there to be a review once every seven days should be maintained.
The Act presently provides, in s.103(7) that an adjudicator shall order a detainee released if not satisfied that he/she poses a danger to the public or would abscond. The onus is on the government to put forward convincing reasons for the detention. Bill C-86 changes this onus. S.103(7) is amended so as to require the detainee to put forward convincing reasons for release.
Amnesty International believes that the burden for establishing the lawfulness and necessity of detention is always with the detaining authority. Amnesty International believes that the change to s.103(7) violates international principles and is in contravention of s.7 of the Canadian Charter of Rights and Freedoms.
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II. HEARINGS BEFORE THE CONVENTION REFUGEE DETERMINATION DIVISION OF THE IMMIGRATION AND REFUGEE BOARD
Amnesty International is of the view that the procedures followed by the Refugee Division in the determination of claims must be designed so as to minimize the possibility that claims will wrongfully be denied and individuals returned to countries where they face the risk of arbitrary detention, torture or execution. In that regard, the independent and specialized nature of the Refugee Division is a fundamental safeguard. Amnesty International believes that provisions in Bill C-86 threaten to undermine the independence, expertise and fairness of the Refugee Division.
A.Public Hearings
Bill C-86 proposes that 69(2) of the Act, which presently states that, as a general rule, refugee hearings are to be held in camera, be changed to stipulate that hearings will be held in public unless the Refugee Division is satisfied that there is a serious possibility that the life, liberty or security of any person is endangered.
It is the view of Amnesty International that holding refugee hearings in public may have a negative effect upon the nature of such proceedings. The existing leglislation is sensitive to the fact that many refugee claimants are reluctant to speak about their experiences in a public forum. For example, it is generally very difficult for victims of torture to describe events which have caused them great pain, humiliation and shame. Such difficulties would not affect the "life, liberty or security" of such persons. However, the necessity of testifying about such events in public is, in our view, likely to make many claimants less forthcoming about matters relevant to their claims. This, in turn could lead to negative decisions which would affect the "life, liberty and security" of genuine refugees.
Amnesty International proposes that if this move away from a presumption of hearings being held in camera is maintained, clear guidelines be added regarding the meaning of "a serious possibility that the life, liberty or security of any person is endangered", taking into account the particular sensitivities of refugee claimants, and would allow for the exclusion of members of the public where the presence of such persons is likely to affect the ability of the person concerned to testify.
B.Unanimous Decisions Required in Certain Cases
Bill C-86 introduces a new provision, s.69.1(10.1), requiring that, in certain cases, the two Board Members hearing a claim must be unanimous in their acceptance of that claim. If one of the Board Members denies the claim, it will not be accepted. This fundamentally changes the present situation, wherein all claims need only receive a positive decision from one of the two Board Members to be accepted.
This change will affect those individuals who: (1) dispose of or destroy identity documents, without valid reason; (2) after making their claim, visit the country in which they claim to fear persecution; and (3) come from a country which is prescribed to be a country that respects human rights.
Amnesty International believes that this proposed addition to the Act reflects a significant move away from a fundamental precept of international and national refugee law, namely that the benefit of the doubt should be given to refugee claimants. The proposed change would also lead to a system whereby individuals are treated in a discriminatory fashion on the basis of group-derived characteristics which do not take an individual's particular circumstances fully into account. If an individual's case falls within one of those defined groups, he or she would be subjected to a more onerous standard of proof. Amnesty International believes that refugee determination should be based on an individual assessment of each particular claim. Amnesty International is of the view that this provision increases the risk that negative decisions will be made in refugee claims, for reasons unrelated to the merits and substance of the claim.
Amnesty International also believes that these provision infringe upon the independence and expertise of the Refugee Board. Identity, nationality, return visits to countries of origin and a country's human rights record are all fundamental issues which are central to the adjudication of any refugee claim. Amnesty International is of the view that it is for the Board to assess the degree to which these issues should impact upon any given refugee claim. This provision seeks, in part, to perform the Board's very role.
In addition to these general concerns, Amnesty International has concerns about the three categories specified in this section.
- Destruction or Disposition of Documents
- Return to Country of Nationality While Claim Pending
- Countries that Respect Human Rights
Amnesty International believes that this provision penalizes claimants for one of the basic realities of refugee flight. A large number of refugee claimants are forced to use false documents in order to flee their countries. Refugees would be putting themselves at risk in seeking to obtain documents from the authorities they fear. If they dared to do so they would quite likely put themselves in even greater danger. Those who already possess valid documents might not have the time to gather the documents, givent the urgency of flight. They might not be able to make it past exit controls using documents issued in their own names. The barriers erected through complex visa controls and carriers' liability provisions often leave refugees with no choice but to resort to false documents. False documents are often destroyed because refugee claimants are afraid that the discovery of such documents will lead to deportation.
Amnesty International believes that this provision, s.69.1(10.1)(a) violates Article 31.1 of the Convention. Article 31.1 prohibits Canada from imposing penalties on refugees, on account of illegal entry or presence. Amnesty International is of the view that in taking away the benefit of the doubt enjoyed by other refugee claimants and allowing one negative decision to override one positive decision, s.69.1(10.1)(a) penalizes those refugees who are unable to obtain and make use of valid travel and identity documents and resort to the use of false documents in their attempt to flee from danger and illegally enter Canada.
This provision applies to all refugee claimants who visit their country of nationality after making a claim, whether or not they are able to advance "valid reasons" for the return visit. Amnesty International is of the view that, at the very least, to minimize the risk of negative decisions being made for reasons unrelated to the merits of a particular claim, individuals should be given the opportunity to put forward such "valid reasons".
Amnesty International believes that this provision is a clear example of introducing generalizations into the adjudication of refugee claims. The provision would introduce a legislative presumption that individuals from certain countries are less likely to be in need of protection.
Bill C-86 provides no criteria as to how a country's human rights record will be evaluated. Amnesty International believes that it is an impractical exercise to draw up a list of such countries. Amnesty International is of the view that human rights violations are possible at any time, in any country. This provision would suggest otherwise.
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III. APPEAL PROVISIONS
Bill C-86 further reduces the already limited provisions dealing with appeals of negative decisions made in refugee claims. An application for judicial review of a negative decision to the Federal Court - Trial Division can be commenced with leave of a judge of that Court.
The experience of Amnesty International since the establishment of the Refugee Division in January 1989 is that mistakes have been made in the determination of refugee claims. We have seen decisions which reveal that Board Members did not understand or have knowledge of the pattern of human rights violations prevailing in certain countries. We have also seen decisions where findings of lack of credibility have been arbitrary or based upon inconsequential concerns. Without an appeal on the merits, these mistakes cannot be judicially remedied.
The determination of refugee status is based primarily upon findings of fact and credibility. The present Act and Bill C-86 do not provide any appeal mechanism by which mistakes made in the decision-making process can be rectified. Mistakes are inevitable in any system. Genuine refugees may face severe consequences if returned to their country of origin. Lives or liberty may be at stake.
An appeal procedure is even more important with the new provisions requiring unanimity in certain cases. Those provisions carry the possibility of an increased number of negative decisions being made and therefore an increased danger of genuine refugees being returned to situations where they may face loss of liberty or life.
Amnesty International has long advocated a centralized paper review on the merits of the claim. This mechanism could reverse any incorrect decisions as well as ensure consistency in decisions. A centralized review would have the authority to reverse a negative decision and to send a claim to be heard again by a differently constituted panel.
IV. INTERNATIONAL AGREEMENTS
Bill C-86 introduces s.108.1, new to the Act, which provides the Minister with the power to enter into agreements with other countries for the purpose of facilitating the coordination and implementation of immigration policies. The Minister need only seek the approval of the Governor-in-Council before entering into such agreements.
Amnesty International has closely monitored the progress made in Europe towards coordination of immigration policies. It is quite likely that those agreements will serve as the basis for international agreements which Canada will seek to ratify. Amnesty International is concerned that a number of provisions in these agreements make it more difficult for refugee claimants to obtain effective protection. Amnesty International's concerns in the field of international cooperation include the following:
Coordination of visa policy and carrier sanction liability - this will broaden and intensify the obstructive effects of such measures on access to refugee determination procedures by people fleeing human rights violations.
Safe third country provisions - the agreements allow for the return of refugee claimants to third countries without explicitly requiring the returning state to ensure that they will be granted effective and durable protection in the third country.
One claim, one country - the agreements establish criteria by which one country would be designated as being responsible for the adjudication of a particular claim. The claimant, if rejected in that country, would not be allowed to seek protectionin any of the other countries. This provision fails to take into account the wide variance in refugee determination procedures amongst the countries involved, including some states whose procedures fall short of international standards. The provision also fails to take into account that different countries have different interpretations of human rights conditions prevailing in countries of origin and promote different views of certain elements of the substantive refugee definition.
Amnesty International is concerned that written agreements which impact upon these and other basic concerns in the field of refugee protection must be subjected to public scrutiny. The powers at stake have the potential to profoundly affect the lives and safety of thousands of individuals. This power cannot be left to the secrecy of Cabinet. Amnesty International believes that such agreements, impacting as they do upon the fundamental right of individuals to seek asylum, should be subjected to open, public consideration prior to approval.
V. CONCLUSION
As has been stated many times in the past, Amnesty International supports efforts to curb abuse of the refugee determination process. Such measures, however, must not jeopardize the life or liberty of genuine refugees. In our view, Bill C-86 goes beyond what is required to curb abuse. Amnesty International believes that measures contained in the Bill violate rights guaranteed by the Charter and in international treaties concerning refugees and the prevention of torture. Amnesty International is of the view that the Bill increases the risk of individuals being returned to situations where they face the risk of being arbitrarily detained, tortured or executed. We strongly urge the Committee to recommend amendments to the Bill, having regard to the concerns of Amnesty International expressed herein.