Good morning. I will address the anti-smuggling provisions and designated foreign national regime as well. I intend to focus somewhat specifically on the case of the Sri Lankan Tamil refugee claimants who have arrived in Canada over the last few years.
I want to say at the outset that I endorse and rely upon two briefs primarily—that prepared by Amnesty International, in particular part I of that brief with respect to anti-smuggling provisions, as well as by the Canadian Bar Association, particularly part VI, addressing the designated foreign nationals regime. For those reasons I won't rehearse the provisions in those two briefs but point you to them.
Bill C-31 would impose multiple penalties on claimants as well as protected persons designated as part of an irregular arrival. As you know, the penalties include mandatory detention without access to review for 12 months; the denial of the right to apply for permanent residence status or family reunification until five years have passed since a favourable determination of their protection claim; denial of access to relief based on humanitarian and compassionate grounds, temporary resident permits, or refugee travel documents for five years or longer; and finally, denial of the right to appeal an unfavourable determination of a protection claim to the newly established Refugee Appeal Division.
It is my view that the minister's discretion to designate is overly broad. It's not limited to mass arrivals, and it may be applied retroactively to March 2009. Arrivals of two or more persons “by irregular means” could attract designation.
Let's be very clear: the genesis of these provisions was a response to the arrival of two boats off the coast of British Columbia, the Ocean Lady in the fall of 2009, followed by, almost a year later, the MV Sun Sea. These provisions have been specifically targeted to the case of the Sri Lankan Tamil refugee claimants. If we have any doubt, the proposal to make them retroactive to March 2009 should leave no question lingering.
I will say more in a few minutes about that, but I want to emphasize that in my view these provisions are unconstitutional and violate a number of important provisions in the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, as well as the 1951 refugee convention.
These violations are detailed very thoroughly in the CBA and Amnesty briefs, as well as in the May 3 submission of the Canadian Association of Refugee Lawyers, “Canada Must Protect, Not Punish, Refugees”.
I want to urge quite simply, and in the most forceful terms, that we ensure that these provisions are eliminated from the final version of Bill C-31. It is my view that no amendment or incremental improvement around the edges should be acceptable. I want to point out that existing tools within the Immigration and Refugee Protection Act are more than adequate to deal with genuine concerns about mass arrivals.
Let's look at how the system responded to the two boats off B.C.
Refugee claimants were detained until authorities were satisfied that they knew who they were and/or that they didn't pose any security risk. Those for whom there were still concerns remained in detention until those concerns were addressed. It's true that detention reviews are supposed to take place within the first 48 hours. It's merely a review; it doesn't mean that somebody gets released after 48 hours. Indeed, as I mentioned, many refugee claimants were subject to prolonged detention while authorities addressed concerns about who these people were and whether or not any of them posed a genuine risk.
For people on those boats with respect to whom there were security concerns, the government had ample tools in its legislative tool box to designate them a risk and use admissibility procedures before the Immigration and Refugee Board to bar access to the asylum procedure altogether. Indeed, a number of people, particularly those arriving on the Sun Sea, faced those very procedures.
What I want to emphasize is that concerns about irregular arrivals are legitimate. It does pose an enormous burden on a government to process a large group of people who all arrive together—when it's some 500 people, for example—but we have the tools to deal with it, and they work, quite frankly. I see no reason to impose what in my view would be an egregiously draconian set of provisions on people, many of whom may end up being genuine refugees. I want to say that at the outset.
I want to go back to the situation of the Sri Lankan Tamils because there seems to have been much misunderstanding with respect to the causes and conditions that led these people to assume risky voyages in the first place and to brave several months on the high seas to come to Canada.
Sri Lanka, as you may know, is a country that has been wracked by ethnic conflicts that spiralled into civil war, the roots of which can be traced to the period immediately following the country's independence. For 30 years, this civil war was brutal. Atrocities were committed by all parties to the conflict, but we need to keep squarely in view the fact that the primary driver of that conflict was the Sri Lankan state's failure to recognize minority rights within that country: its failure to grant its Tamil citizens, some 18% to 20% of its population, equal rights.
With intermittent ceasefires when conditions appeared to ameliorate, things improved. However, overall, there were significant rates of disappearances, extremely high rates of torture and detention, and a complete lack of accountability throughout the course of that civil war.
The war finally ended with the defeat of the LTTE in May 2009, but as the International Crisis Group has noted in a series of reports over the past three years, including two very recent briefs in March, we see neither peace nor even modest steps toward genuine reconciliation in that country. Indeed, there is deepening militarization in the north and a policy of Sinhalization, a policy that explicitly privileges the majority ethnic group and continues to systemically disadvantage Tamils and Muslims, the two minority groups in Sri Lanka.
Now, recent media reports have suggested that acceptance rates for Sri Lankan Tamils have plummeted. I'm making reference to a recent report in the National Post, but in reality, Sri Lankan Tamils were accepted at the rate of some 57% in the last year. Of all claims made by Sri Lankan Tamils, 57% were accepted. That's a very significant number. Yes, it's down from the high of some 91% of positive claims in 2009, but it is still a very significant number.
I put a call out to refugee lawyers across the country when I realized I would have the opportunity to appear before you today, and I asked them to send me the positive decisions they've received with respect to clients they've represented from the Ocean Lady or the Sun Sea. I had an opportunity to review four such decisions very recently, four positive decisions, three from the Sun Sea and one from the Ocean Lady, and I want to share with you some of the observations made by the board members in those cases.
They include observations such as this one: that the Sri Lankan government continues to screen and check former Tamil Tiger members and those it has suspected in the past of being a Tiger member or supporter. This is seen as a pre-emptive strategy to discourage Tamil radicalization.
Suspected Tiger members and rehabilitated Tiger members are regularly subjected to rearrest or harassment or are forced to act as informants for the military. The new detainees are often not formally charged. Many are tortured.
Under the Prevention of Terrorism Act, government officials who may commit wrongful acts such as torture are provided with immunity from prosecution. Legal proceedings against government officials are prohibited if an individual acted in good faith.
The long and the short of it is that human rights violations persist in Sri Lanka to an enormous extent.
Do Sri Lankan Tamils have a choice in terms of what to do? Those who are able to get on a plane and fly to Thailand, Malaysia, or Indonesia, or to take a voyage to India, find themselves languishing for years. In Thailand in particular, I want to emphasize, there are still at least 60 people in detention in deplorable conditions, without adequate hygiene or nutrition.
They are told to join the queue, yet there is no queue. These countries are not signatories to the UN refugee convention, and at best they wait for years.