Thanks, again, for your invitation. We are very happy to be here.
We're going to focus on one area of particular concern under Bill C-43: the denial of access to humanitarian and compassionate, or H and C, considerations to persons excluded from refugee protection and the denial of H and C considerations to persons found inadmissible on security grounds who apply for ministerial relief from such inadmissibility.
We'll start with a real-world example of a person who is currently being assisted by one of our member organizations.
This is Salma's story.
While still a student in her civil-war-torn country in Latin America, Salma was recruited into the student arm of the opposition movement. She helped run meetings, sometimes serving coffee and taking minutes, and was involved in organizing peaceful demonstrations. Years later, after peace accords were signed and the movement became a legal political party, she again volunteered during an election campaign. Salma says she inadvertently came across evidence of illegal activities and was targeted by party officials, who first threatened, and then brutally assaulted her.
She fled to Canada to seek asylum; however, the Immigration and Refugee Board found that her involvement in the movement, which had a guerrilla arm that had targeted some civilians during the civil war, excluded her from being considered for refugee protection in Canada. She was deemed to be “complicit in crimes against humanity”.
In addition, even though an official at the Canada Border Services Agency confirmed that Salma had never been involved in any act of violence and posed no danger to Canada, by the automatic effect of the law she also became inadmissible for permanent residence under section 35 of IRPA.
Canadian medical professionals believe that Salma was indeed the victim of sexual assault and that a return to her country would be extremely destructive to her mental health. She has no family to return to back home. Her only son and her ex-spouse have immigrated to Canada in separate immigration procedures.
Now, under the law as it stands today, Salma can still apply for permanent residence on humanitarian and compassionate grounds. In examining such an application, an officer would have to weigh the factors present: the hardship for Salma of returning to the country of her traumatization; her medical situation; the best interests of any child affected; the links she has developed to Canada; and, of course, the nature of her activities with the organization with which she was associated. The officer could then decide whether to grant Salma permanent residence on H and C grounds, including a waiver from her inadmissibility; however, Bill C-43 would render this impossible. She could not even make an H and C application.
In the previous presentation, I heard it referred to that people make H and C applications to delay their removal from Canada. Just to be completely clear on this, an H and C application does not delay somebody's removal from Canada.
This is a matter of great concern to us. It is our experience that Salma's case is not an isolated one. Rather, it is our experience that the exclusion clauses are being applied by the IRB in an increasingly broad manner. Our experience is corroborated by a comprehensive academic study which decries the growing culture of exclusion in Canada. This study, “The Growing Culture of Exclusion: Trends in Canadian Refugee Exclusions”, which is cited fully in our brief, was published in 2011. It examined every exclusion case made public during the period 1998 to 2008. Here are some of the conclusions:
Exclusions at the IRB have increased dramatically during this period: from two cases in 1998 to a high of 114 in 2004 and 79 in 2008:
The Canadian government has aggressively pursued exclusion by intervening in IRB cases and it has employed ‘creative’ arguments at all levels of adjudication.
On the issue of complicity:
The cases reveal a troubling state of affairs: it is who you are or who you are associated with, rather than what you have done, that often provides the basis for exclusion.
Further:
These understandings of complicity go beyond the findings of international criminal tribunals, which ‘only dealt with persons most responsible for international crimes’. In this way, refugee law is being used to assign culpability at a far lower threshold than international criminal law.
Finally, the authors, who are two academics from UBC, conclude:
This fails to conform to the humanitarian requirements of international refugee law and to international human rights law, and it ignores the fact that many of the excluded claimants have never participated in violence or specific crimes, and would not have been excluded a decade ago.
That's the first part of our main concern.
The second part is the eliminating of agency considerations from applications for ministerial relief. We sometimes see people whose stories are very similar to the one I just told you, but who are caught by the inadmissibility provisions in a different way.
For example, even if the IRB had chosen not to exclude Salma and had granted her refugee status, she could have subsequently found herself declared inadmissible to Canada, under section 34 of IRPA, for having been a member of an organization that there are reasonable grounds to believe has engaged in instigating the subversion of force of any government.
I don't think I'm the first person to tell you this, but as has frequently been observed, even Nelson Mandela, were he not an honorary Canadian citizen, would fit this definition.
Under the law as it stands today, such persons can apply for ministerial relief from their inadmissibility. To succeed, they must satisfy the minister that their presence in Canada would not be detrimental to the national interest. Historically the minister has taken agency considerations, such as the ones I was talking about earlier, into account in examining such requests.
However, Bill C-43 would amend the relevant section to read that the minister may only take into account national security and public safety considerations, but in his or her analysis is not limited to considering the danger that the foreign national presents to the public or the security of Canada.
Under the same provision of Bill C-43, which I talked about with Salma's case, such persons are also barred from filing applications for permanent residence on H and C grounds. They're barred either from asking for ministerial relief on humanitarian grounds or applying for permanent residence on humanitarian grounds.
We believe that this complete exclusion of H and C considerations in these contexts is contrary to Canada's international obligations under the International Covenant on Civil and Political Rights, which among other things provides protection of family rights and security of the person.
We believe it also violates Canada's obligations under the Convention on the Rights of the Child since it would eliminate consideration of the best interests of the child, which is normally an important part of H and C decision-making. It would also violate our obligations under the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW, which protects women against gender-based discrimination.
