Proposal to Restrict Refugee Rights in Canada Hits Roadblock

by Roger Annis
The Conservative Party government in Ottawa has failed in an effort to stiffen Canada’s refugee laws and make the country less welcome to asylum seekers.

The proposed Bill C-49 would have criminalized asylum seekers to Canada arriving via non-supervised methods, such as aboard ships. They would be subject to mandatory jailing for one year and be unable to apply for permanent residency for five years. Without permanent residency, they could not travel abroad or sponsor family members to move to Canada.

The bill seems destined to die after the Liberal Party, the largest opposition party in Parliament, announced on December 1 that it would not support it. The New Democratic Party and the Bloc Québécois already opposed the bill but did not have enough elected members to block it.

The drafting of Bill C-49 was sparked by the arrival of nearly 500 Tamil asylum seekers on Canada’s west coast last August aboard the MV Sun Sea. The creaking ship made a harrowing crossing of the Pacific Ocean.

In the weeks that followed, the Tamils were vilified by the Conservative government. They were called “queue jumpers” and participants in a “criminal syndicate” of “human traffickers.” Many, it was suggested, were “terrorists,” that is, members or backers of the Liberation Tigers of Tamil Eelam, the largest political and armed organization of the oppressed Tamil minority in Sri Lanka. It is a prescribed organization under Canada’s anti-terrorism laws.

Most of the people on board the ship remain in detention. As a recent article in the Australian Green Left Weekly by writer Lee Yu Kyung documents, asylum seekers whose applications to  Australia have been refused and who have been returned to Sri Lanka are being tortured and otherwise abused.

After the Liberals announced they would not support Bill C-49, Immigration Minister Jason Kenney said he and his government would fight on. “Canadians are still very concerned about this country being targeted by smuggling syndicates, by the systematic abuse of the fairness and integrity of our immigration system by the smuggling syndicates and, frankly, their customers….

“We will not give up on this strong but reasonable effort to stop the smugglers from targeting Canada.”

The Liberals say they are willing to work with the government in fashioning a bipartisan bill to crack down on “human smugglers.” But party leader Michael Ignatieff said, “We feel very strongly it [the bill] is punishing the wrong people.”

The term “human smuggler” is a catch-all phrase being used by politicians to confuse and divide public opinion, saying that the person who facilitates the arrival of a refugee escaping persecution is equivalent to someone directing young, foreign women into prostitution. The phrase is intended to divide public opinion, which in Canada is very supportive of refugee rights.

The government and the Liberal Party agree that restrictions are required so that most, if not all, applications for asylum to Canada are made outside its borders. The problem for both is that international law does not allow for such distinction. Once someone lands on Canada’s shores, according to international convention, he or she has the same rights as someone who applies at a Canadian embassy, consulate or UN agency abroad.

The Liberals said they decided to oppose Bill C-49 because they were convinced it would not hold up in court. Indeed, though it was not reported in Canada, Australia’s High Court ruled on November 11 against provisions in that the country’s restrictive Refugee Status Assessment (RSA). The court upheld a case put by two Tamil asylum seekers whose claims for asylum had been rejected. They had been denied the right to challenge their rejected claims in court because they had arrived in Australia by boat.

Australia’s RSA process discriminates between asylum seekers who arrive by boat, known as “irregular arrivals,” and those who arrive by other means, such as by plane. “Irregular arrivals” have greatly restricted rights to appeal if their claim for refugee status is rejected.

Changes to Australia’s Migration Act were introduced in 2001 that excised thousands of island possessions from provisions of the country’s immigration laws. Australia has established internment camps on some of those territories, including the colony of Christmas Island. Boat arrivals are taken there. The law imposes mandatory detention and fewer rights to such “irregular arrivals.”

The High Court found that one of the errors of the RSA process is that both the first stage RSA decision maker and the second stage reviewer treated the country’s Migration Act and decisions of Australian courts as no more than guidelines to their decisions. In fact, each was bound by the Act and by previous court decisions.

The court decision does not restore the rights of judicial review taken away by the 2001 changes. Only the government can do that, and it is fiercely resisting doing so, despite considerable opposition to its policies by Australians as well as international critics. The ultimate decision to deport failed refugee claimants was left to the immigration minister’s discretion.

Jason Kenney and other Canadian government officials made extensive visits to Australia in the weeks following the Sun Sea’s arrival to learn from that country’s experience.

Despite the seeming demise of Bill C-49, one consequence of the government drive to degrade the rights of asylum seekers has been the decline in acceptance of refugee claims by Tamils in Canada. The acceptance rate for each of the 18 months preceding August 2010 was greater than 80 percent in all months and 90 percent in some. In August, 2010, it dropped to 75 percent, then to 47 percent in September. These figures do not include any applicants from the Sun Sea.

Canada backs many of the repressive governments in the world, including Sri Lanka’s, that are responsible for producing so many refugees. It is also one of the leading culprits in the sharp rise of  climate refugees that is anticipated across the globe in the coming decades. According to a new study, within the next 20 years ten million people a year will be extremely vulnerable to desertification and sea-level rise and will be driven to seek relocation. The Climate Vulnerability Monitor was published on December 3.



Two eyewitness articles by Lee Yu Kyung on the repressive conditions in which the Tamil people of Sri Lanka are living since the bloody conclusion of that country’s civil war last year were recently published in Australia’s Green Left Weekly:

For more on the aftermath of the arrival of the MV Sun Sea in Canada, see