Human Rights for All: No Exceptions - A Human Rights Agenda for Canada

Related Topics

Overview

Introduction

No Security Without Human Rights

The Human Rights of Indigenous Peoples must be protected

Protecting the Human Rights of Women

Safety for Refugees

Human Rights are a Business Matter

The Need for Strong Global Rules and Institutions

Summary of Recommendations

Take Action

Canada - Actions Index

 

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Safety for Refugees

Refugees flee in the face of human rights violations, often experiencing further violations during their escape.  And increasingly, in countries of asylum, the human rights violations continue.

The tragedy of this is that ensuring the protection of refugees should be one of the most effective ways to prevent human rights violations.  Instead, the treatment of refugees has become a crucial human rights concern around the world.  Refugee claimants and refugees are:

• beaten, harassed and killed
• confined to camps or arbitrarily locked up in detention centres
• denied access to employment, education and social assistance
• often forced back to their home countries before it has become safe to return. 

Canada is frequently considered to be one of the most generous and rights-regarding nations in the world when it comes to refugee protection.  There are aspects of Canada’s approach to refugee protection, that deserve praise.  However, there are a number of laws, policies and practices that put the basic rights of refugees at risk.

1. At the border

Approximately one-third of the women, men and children who travel to make refugee claims in Canada every year pass through the United States.  For those coming overland from Latin America, there is no other choice.  For those coming by air, flights and visa requirements often dictate flying first to the United States and then continuing on to Canada.  In December 2004, a new deal was struck between the Canadian and US governments.  Often termed the “safe third country agreement” it effectively bars most refugees who pass through the United States from making a refugee claim in Canada.  They are instead required to make claims for asylum in the U.S. 

There are, however, serious human rights concerns about the treatment of asylum-seekers in the United States. These include:

• arbitrary and indefinite detention
  
  
• harsh prison conditions
  
  
• failure to reliably provide protection to women asylum-seekers fearing gender-specific forms of persecution such as domestic violence and female genital mutilation.  

Canada becomes complicit in these violations when it closes its doors to refugees and forces them to remain in the United States.

For years, Amnesty International and other organizations have pressed Canada to refrain from entering into this agreement until the US asylum system conforms to international standards.  Now, with the Canadian Council for Refugees and the Canadian Council of Churches, Amnesty International is challenging the agreement in court.  The Federal Court will begin hearing the case in February 2007.

• The government should suspend the Canada/US safe third country agreement until such time as US asylum law and practice has been brought into line with international standards. At a minimum, operation of the agreement should be suspended while it is being challenged in court.

2. In the hearing room

In 1988, Canada created the Immigration and Refugee Board (IRB), a quasi-independent administrative tribunal designed to hear and decide refugee claims.  The IRB was a welcome improvement in Canada’s approach to refugee determination, except for one notable flaw. While there were limited or technical bureaucratic and judicial reviews, the system did not include a full appeal on the merits of decisions turning down refugee claimants - decisions that literally could be about life or death. 

To remedy this shortcoming, the new Immigration and Refugee Protection Act was passed in 2001, creating a new Refugee Appeal Division at the IRB. Changes to the refugee hearing process were also adopted, so that refugee claims would now be heard and decided by only one member of the Board, rather than two.  It was generally considered that the gains of the Refugee Appeal Division would more than compensate for the change in the hearing process.

However, governments since have refused to establish the Refugee Appeal Division. A long overdue improvement to Canada’s refugee system, that will safeguard fundamental rights has been ignored.

• The government should immediately establish and adequately resource the Refugee Appeal Division of the Immigration and Refugee Board.

3. When there is a risk of torture

Many refugees seek protection from torture.  International law is clear: no one should be sent back to a country where there is a serious risk that they will be tortured. [1] Yet Canada insists that in certain circumstances, such as national security concerns, it is permissible to do just that. Sometimes deportations go ahead on the basis of “assurances” provided by the other government that they will not torture the person concerned. 

In 2002, the Supreme Court of Canada made it clear that Canada should never send anyone to a country where there is a serious risk he or she will be tortured.  The Court indicated that there may be exceptional circumstances which would justify doing so, but did not define what those circumstances might be. [2] Recently, a Federal Court refused to allow Mahmoud Jaballah to be deported to Egypt, where he is almost certain to be tortured, despite the government’s argument that there were exceptional circumstances that should justify his deportation. [3]

UN human rights bodies have repeatedly called on Canada to implement the ban on deportations to torture. [4] They have also asked Canada to delay deportations in some cases to allow time for a full review.  Canada deported people to Iran and India in 2006 despite requests from the UN Committee against Torture to either delay or halt the deportation. [5] Canada has also disregarded similar requests from the UN Human Rights Committee and from the Inter-American Commission on Human Rights. [6]

• The government should amend the Immigration and Refugee Protection Act to include an absolute ban on deporting anyone to a country where they face a serious risk of being tortured.
  
  
• The government should comply with all requests from United Nations’ and Organization of American States’ human rights bodies to halt or delay deportation, extradition or other removal proceedings.

4. When trying to build a new life

Amnesty International is aware of a growing number of cases where individuals granted refugee status in Canada, have faced inordinate delays in being granted permanent resident status.  Ordinarily, Amnesty International does not take a position on what type of immigrant status individuals receive in Canada.  However, we are increasingly concerned that lengthy and seemingly arbitrary delays in permanent residency can have serious consequences. Delays can directly interfere with refugees’ ability to enjoy a number of fundamental rights, such as the rights to family reunification, work, education and travel freely.

Many of the cases Amnesty International has noticed involve individuals labeled a “security concern”. Some of the security-related provisions in Canada’s immigration laws are drafted so broadly or vaguely that they include activity that is legitimate political dissent. These may be applied against certain ethnic, political or national groups. 

In some cases, immigration officials refer cases to the Canadian Security Intelligence Service (CSIS) for further review.  There are no regulations that obligate immigration officials to resolve these cases within a certain period of time, and no body to which complaints can be directed and concerns resolved.  Complaints about the actions of CSIS can be brought before the Security Intelligence Review Committee (SIRC), but SIRC’s recommendations are not binding on immigration officials.  Meanwhile, people’s lives are left on hold.  If the security concerns are well-founded, speed is needed to launch a criminal investigation or prosecution; if the security concerns are not well-founded, it is needed so that refugees can rebuild their lives.

• The government should introduce a right to a hearing before an independent decision-maker for individuals alleged to be ineligible for permanent resident status on security grounds. It should establish an arms-length process for dealing with complaints against immigration officials.
  
  
• The government should enact regulations setting reasonable time limits for carrying out security reviews of refugees who are seeking permanent resident status.
  

 

Posted: 14 December 2006