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The Conundrum of Refugee Protection in Canada: From Control to Compliance to Collective Deterrence

Published online by Cambridge University Press:  14 October 2011

James C. Hathaway
James C. Hathaway
Affiliation:
Osgoode Hall Law School, York University
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Extract

Canadian policy on the protection of refugees has evolved through three distinct traditions. During the first era, refugee protection was constructed as a matter of immigration control. Indeed, until the middle of the twentieth century, Canada had no law or policy specifically oriented to the admission of refugees. Refugees simply applied for permission to enter Canada under the auspices of the general immigration scheme, the primary purpose of which was to promote domestic economic interests. The erosion of this historical view of refugees as immigrants has occurred only gradually, such that even today most refugees protected by Canada must meet immigration selection criteria, in addition to showing that they are at risk in their home country.

Type
Articles
Information
Journal of Policy History , Volume 4 , Special Issue 1: Refugees and the Asylum Dilemma in the West , January 1992 , pp. 71 - 92
Copyright
Copyright © The Pennsylvania State University, University Park, PA. 1992

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References

Notes

1. Dewitt, David and Kirton, John, Canada as a Principal Power (Toronto, 1983), 245–46.Google Scholar

2. “… The policy that gradually allowed the arrival of displaced persons remained rooted in the traditional criteria of economic absorptive capacity and concern over homogeneity of population characteristics”: Ibid., at 246.

3. Dirks, Gerald, Canada's Refugee Policy: Indifference or Opportunism! (Montreal, 1977), 158.Google Scholar

4. “The international context seemed to place Canada, along with its allies, in a position of responsibility to offer assistance to those who suffered at the hands of Communist repression”: Dewitt and Kirton, note 1 above, at 251. In the case of the Ugandan Asians, Canada's preparedness to act was in large part a response to the urgent needs of its mother country, the United Kingdom: Goodwin-Gill, Guy, International Law and the Movement of Persons Between States (Oxford, 1978), 212–13.Google Scholar

5. “One of the major difficulties we have with the Convention is that by interpretation of the High Commissioner's Office and practice of States who have so far become signatories, it can embrace almost anyone from behind the Iron Curtain and other areas who chooses to seek refugee status outside of his own country. It represents an open-ended commitment in this respect.… [A]rticle 33 of the Convention which may not be reserved, limits the grounds on which deportation may be ordered and limits the countries to which deportation may be effected. Our Immigration Act contains no such limitations”: Memorandum to the Minister of Citizenship and Immigration from C. M. Isbister, Deputy Minister of Citizenship and Immigration, 2 December 1963, File 566–10.

6. Memorandum to the Director of Immigration, Department of Citizenship and Immigration from the Executive Assistant, 6 September 1960, File 566–9. Accord Memorandum to the Under-Secretary of State for External Affairs from Laval Fortier, Deputy Minister of Citizenship and Immigration, 8 July 1954, File 566–10.

7. Memorandum to the Minister of Citizenship and Immigration from Laval Fortier, Deputy Minister of Citizenship and Immigration, 29 May 1958, File 566–10.

8. Memorandum to the Deputy Minister of Citizenship and Immigration from the Director of Immigration, 19 January 1953, File 566–10.

9. “In 1966, the definition was altered to exclude the ‘economic’ refugee by deleting the phrase ‘or dissatisfaction.’ This revision was made primarily to exclude Yugoslavians who had left their country for such countries as West Germany, Austria and Italy from which they hoped to migrate to other countries including Canada”: Memorandum to the Director, Planning Branch, Department of Manpower and Immigration from A. J. Banerd, 23 November 1967, File 5780–1.

10. Memorandum to the Director of Administrative Services from the Director of Immigration, 8 March 1961, File 566–10.

11. Memorandum to George Davidson, Deputy Minister of Citizenship and Immigration from Norman Robertson, Under-Secretary of State for External Affairs, 5 July 1961, File 566–9. Accord Memorandum to the Deputy Minister of Citizenship and Immigration from the Acting Under-Secretary of State for External Affairs, 18 February 1954, File 566–10; and Memorandum to Laval Fortier, Deputy Minister of Citizenship and Immigration from Jules Leger, Under-Secretary of State for External Affairs, 11 January 1957, File 566–10.

12. Memorandum to C. M. Isbister, Deputy Minister of Citizenship and Immigration from Norman Robertson, Under-Secretary of State for External Affairs, 18 December 1963, File 566–9.

13. Ibid. It has since been established that the duty of non-refoulement of refugees applies equally within the territory of a state and at its frontiers: Goodwin-Gill, Guy, The Refugee in International Law (Oxford, 1983), 74–78.Google Scholar

14. Letter to Norman Robertson, Under-Secretary of State for External Affairs, from George Davidson, Deputy Minister of Citizenship and Immigration, 6 October 1961, File 566–9.

15. Ibid.

16. “Support for the United Nations was a major element in Canada's foreign policy. … The early breakdown between the Big Powers in the United Nations, on whose co-operation so much of the Charter was based, made the position of the Middle Powers such as Canada more important than it would otherwise have been.… [Middle Powers] stood between the increasing number of small states which had little power and the great states which had too much. Canada was one of the most active of these Middle Powers”: Pearson, Lester, Mike: The Memoirs of the Rt. Hon. Lester B. Pearson (Toronto, 1973), vol. 2, 121.Google Scholar

17. Letter to Marcel Cadieux, Under-Secretary of State for External Affairs, from C. M. Isbister, Deputy Minister of Immigration, 1 December 1964, File 566–9.

18. Memorandum to File from J. L. Manion, Immigration Branch, 1 December 1964, File 566–9.

19. Letter to the Under-Secretary of State for External Affairs from R. B. Curry, Assistant Deputy Minister of Immigration, 14 December 1965, File 566–9.

20. Wydrzynski, Christopher, “Refugees and the Immigration Act,” McGill Law Journal 25 (1979): 159.Google Scholar

21. Memorandum to the Director, Planning Branch, Department of Manpower and Immigration, note 9 above, at 8.

22. Immigration Appeal Board Act, R.S.C. 1970, c.I-3 (“Immigration Appeal Board Act”).

23. An Act to Amend the Immigration Appeal Board Act, S.C. 1973–74, c.27, ss. 1,5. Prior to this amendment, “political opinion” was often invoked as a ground for landing under the Immigration Appeal Board's general equitable jurisdiction.

24. Section 15(b)(i) of the Immigration Appeal Board Act as amended (Ibid.) permitted, but did not require, the Board to quash a deportation order where it was of the view that the applicant was a refugee protected by the Convention.

25. Pursuant to section 11 of the Immigration Appeal Board Act as amended, note 23 above, claimants were entitled to have their appeal heard only insofar as a quorum of the board determined that their written statement disclosed a reasonable claim to refugee status.

26. For a detailed account of this process, see Dirks, Gerald, “A Policy Within a Policy: The Identification and Admission of Refugees to Canada,” Canadian Journal of Political Science 17 (1984): 283–85.CrossRefGoogle Scholar

27. Immigration Act, 1976, S.C. 1976–77, c.52 (“Immigration Act”). All references are to the act as consolidated by R.S.C. 1985, c.I-2 as amended.

28. Memorandum to R. M. Tait, Assistant Deputy Minister (Special Projects), Department of Manpower and Immigration, from J. B. Bissett, Director General, Foreign Service Region, 13 August 1975, File 5780–1, at 3–4.

29. Memorandum to R. D. Jackson, Chief of Policy Analysis Group, Department of Manpower and Immigration, from J. L. Manion, Senior Assistant Deputy Minister, 19 June 1975, File 5882–3.

30. Letter to H. B. Robinson, Under-Secretary of State for External Affairs, from A. E. Gotlieb, Deputy Minister, Department of Manpower and Immigration, 20 July 1976, File 5882–7.

31. Memorandum to Members of the Legislative Drafting Group from J. Hucker, Department of Manpower and Immigration, 29 April 1976, File 5882–1.

32. It was argued that the incorporation of the Convention definition of refugee status would “reduce the litigation the Department is involved in and would facilitate public explanation of the new provisions on refugees”: Ibid.

33. A. E. Gotlieb, note 30 above.

34. Immigration Act, note 27 above, at s.3(g). This careful distinction between legal obligations (which are binding) and Canada's humanitarian tradition (which is only a guiding principle) reflects concerns within the Department of Manpower and Immigration about the use of overly broad language: J. L. Manion, note 29 above.

35. “[N]o person who is finally determined under this Act, or determined under the regulations, to be a Convention refugee … shall be removed from Canada to a country where the person's life or freedom would be threatened” unless the refugee was judged by the Minister to constitute a danger to the public or security of Canada: Immigration Act, note 27 above, at s.53(l) [formerly s.55].

36. See generally Hathaway, James, The Law of Refugee Status (Toronto, 1991), 11–27.Google Scholar

37. J. B. Bissett, note 28 above, at 1–2.

38. Memorandum to L. E. Couillard, Deputy Minister from R. B. Curry, Assistant Deputy Minister (Immigration), 30 May 1969, File 5784–1.

39. Regulations Respecting Admission and Removal from Canada of Persons Who Are Not Canadian Citizens, S.O.R./78–172 (“Immigration Regulations”), at s.7.

40. “Any person who is a member of a class designated by the Governor in Council as a class, the admission of members of which would be in accordance with Canada's humanitarian tradition with respect to the displaced and the persecuted, may be granted admission”: Immigration Act, note 27 above, at s.6(2).

41. Regulations Respecting the Designation of Political Prisoners and Oppressed Persons Designated Class, S.O.R./82–977. Since the class came into force in 1979, it has benefited persons from a variety of Central and South American countries, as well as from Poland. The innovation of this designated class is that it is applicable to persons still within their country of origin.

42. Regulations Respecting the Designation of an Indochinese Designated Class, S.O.R./78–931. Since 31 August 1990, Kampucheans are the only nationals included in this class: S.O.R./90–626. Moreover, as of 17 January 1991, members of this class must have arrived in Hong Kong, Thailand, Malaysia, Singapore, Indonesia, the Philippines, Korea, Taiwan, Japan, or Macao subsequent to 30 April 1975: S.O.R./91–111.

43. Indochinese Designated Class (Transitional) Regulations, S.O.R./90–627. Effective 17 January 1991, this class is restricted to Vietnamese and Laotians who arrived in Hong Kong before 16 June 1988; or in Thailand, Malaysia, Singapore, Indonesia, the Philippines, Korea, Taiwan, Japan, or Macao before 14 March 1989: S.O.R./91–112.

44. Regulations Respecting the Designation of a Self-Exiled Persons Classs, S.O.R./78–933. This class was abolished effective 31 August 1990: S.O.R./90–533.

45. R. B. Curry, note 38 above.

46. Employment and Immigration Canada, Immigration Manual (Ottawa, Minister of Supply and Services, 1990, as updated) at part I.S. 3.24(2)(a). These descriptions of the various designated classes (notes 41–44 above) contain similar provisions.

47. “Refugees who have been permanently resettled in another country are still entitled to the protection of the refugee Convention and Protocol. However, such persons are not to be selected in the refugee class for immigration to Canada unless they are facing persecution in their country of resettlement”: Employment and Immigration Canada, note 46 above, at part I.S. 3.24(5)(a).

48. Officers abroad are required to ensure compliance with the general immigration requirements established by law: Employment and Immigration Canada, note 49 above, at part I.S. 3.24(6)(a). A series of “inadmissible classes” is prescribed by the Immigration Act, note 27 above, at s. 19.

49. Specifically excluded are “persons who have been convicted of an offence that, if committed in Canada, constitutes or, if committed outside Canada, would constitute an offence … for which a maximum term of imprisonment of ten years or more may be imposed”: Immigration Act, note 27 above, at S.19(1)(C).

50. Immigration Act, note 27 above, at s. 19(l)(a)(ii). Officers abroad are directed to submit full details of medically inadmissible persons to Immigration headquarters “before a final decision is taken,” as a recent policy change permits the admission of disabled refugees who, “following any necessary treatment or special assistance in Canada, … will be capable of successful establishment”: Employment and Immigration Canada, note 46 above, at part I.S. 3.33(3) and (4).

51. Officers are directed to “take into consideration all of the factors used in assessing independent immigrants”: Employment and Immigration Canada, note 46 above, at part I.S. 3.24(6).

52. Particularly important are the motivation and personal qualities essential to becoming established, and the adequacy of the applicant's education and training to ensure that “in the long term, the refugee will have the earning capacity to support his family and will not be dependent on welfare indefinitely”: Employment and Immigration Canada, note 46 above, at section I.S. 3.24(6)(b).

53. “Canada is generous, Canada has been generous and the Minister has provided assurances that Canada will continue to be generous. But the [inland] determination system is not the be-all and end-all of Canada's generosity. It is one element, an important part of a totality that is exercised in many ways internal and external to Canada's immigration system”: Girard, Raphael, “Refugee Determination in Canada,” in Nash, Alan, ed., Human Rights and the Protection of Refugees under International Law (Halifax, 1988), 276. At the time, Mr. Girard was coordinator of Employment and Immigration Canada's Refugee Determination Task Force. See also text at note 62 below.Google Scholar

54. Employment and Immigration Canada, Annual Report to Parliament: Immigration Plan for 1991–1995 (Ottawa and Hull, 1990), 10–11.Google Scholar

55. Ibid, at 11.

56. The government prepares an annual plan for resettlement of refugees from abroad via Canadian diplomatic posts. “Targets” are set for each of five geopolitical regions. The government argues that the process of fixing the allocations provides a flexible yet controlled response to refugee-producing situations as they evolve, and affords a means of reconciling percevied resettlement capacity with the actual extent of need abroad: Employment and Immigration Canada, Canada's Refugee Strategy (Ottawa and Hull, 1980), Bl.Google Scholar

57. Immigration Regulations, note 39 above, at s.7(2).

58. Employment and Immigration Canada, note 54 above, at 9.

59. Ibid.

60. Ibid.

61. Employment and Immigration Canada, Refugee Perspectives: 1987–1988 (Ottawa and Hull, 1987), 40.Google Scholar

62. Canada currently requires the nationals of more than one hundred countries to hold a visa in order to transit in or visit Canada. Included, for example, are China, El Salvador, Iran, Lebanon, Somalia, and Sri Lanka, all major sources of refugee flows into Canada: Immigration Regulations, note 39 above, at s. 13(1) and Schedule II.

63. Raphael Girard, “Speaking Notes for an Address,” Conference on Refuge or Asylum—A Choice for Canada, York University, 1986 (unpublished), at 4.

64. Immigration Act, note 27 above, at ss.2(l) and 19(l)(h).

65. See generally Feller, Erika, “Carrier Sanctions and International Law,” International journal of Refugee Law 1 (1989): 48.CrossRefGoogle Scholar

66. These programs are based on the authority to admit persons “for reasons of public policy or due to the existence of compassionate or humanitarian considerations”: Immigration Act, note 27 above, at s. 114(2) [formerly s. 115(2)]. In 1985 and 1986, approximately 15 percent of total refugee acceptances were admitted to Canada pursuant to the special measures programs: Employment and Immigration Canada, note 61 above, at 40.

67. Removal orders were suspended in regard to the nationals of El Salvador, Iran, Lebanon, and Sri Lanka. Furthermore, eligible Chileans were only removed with the consent of National Immigration Headquarters: Employment and Immigration Canada, note 46 above, at part I.S. 26 (no longer in force).

68. Inland independent applications were permitted from the nationals of Chile, El Salvador, Guatemala, Iran, and Lebanon: Employment and Immigration Canada, note 46 above, at part I.S. 26 (no longer in force).

69. Special overseas sponsorship provisions are provided for the relatives of Canadians who are nationals of Chile, El Salvador, Guatemala, Lebanon, and Sri Lanka: Employment and Immigration Canada, supra note 46, at part I.S. 26.

70. Telex from Director General, Public Affairs, to all Canada Immigration Centers, 20 February 1987. “There will be about 2,000 admissions [per annum) from abroad through our special humanitarian programs.… They are admitted under the Assisted Relative category, and are assessed using relaxed selection criteria for humanitarian reasons”: Employment and Immigration Canada, note 54 above, at 11.

71. Re Singh and the Minister of Employment and Immigration, [1985] 1 S.C.R. 177.

72. See generally Hathaway, James, “Selective Concern: An Overview of Refugee Law in Canada,” McGill Law Journal 33–34 (1988–1989): 677 and 354.Google Scholar

73. Immigration Act, note 27 above, at s.90.1(1). This provision ceased to be in force on 1 July 1989.

74. Ibid., at s.46.01(l)(b).

75. Ibid., at s.94.2.

76. Ibid., at s.46.01.

77. “In effect, the legislation placed with Immigration Canada the management of the first-level determination process, making it difficult for the CRDD to control the pace and number of claims brought before it”: Immigration and Refugee Board, Annual Report for the Year Ending December 31, 1990 (Ottawa, 1991), 20.Google Scholar

78. Immigration and Refugee Board, “Notes for Remarks by Gordon Fairweather, Chairman, Immigration and Refugee Board, to the House of Commons Standing Committee on Labour, Employment and Immigration,” 27 March 1991, at 2.

79. Immigration and Refugee Board, “News Release,” 30 April 1991, at 2.

80. Immigration and Refugee Board, note 77 above, at 17.

81. See generally Ibid, at 16.

82. Immigration and Refugee Board, “Notes for Remarks by Gordon Fairweather, Chairman, Immigration and Refugee Board, to the House of Commons Standing Committee on Labour, Employment and Immigration,” 13 December 1990.

83. Immigration and Refugee Board, note 77 above, at 17–18.

84. Ibid., note 78 above, at 2–3.

85. Immigration Act, note 27 above, at s.82.3.

86. Ibid., at s.4(2.1).

87. Immigration and Refugee Board, Annual Report for the Year Ending December 31, 1989 (Ottawa, 1990), 14; and Immigration and Refugee Board, note 77 above, at 18–19.Google Scholar

88. Immigration and Refugee Board, note 78 above, at 4–5.

89. Ibid., note 77 above, at 20.

90. See generally Hathaway, note 36 above. Of particular note are three recent decisions of the Federal Court of Appeal: Joseph Adjei v. Minister of Employment and Immigration (1989), 7 Imm. L.R. (2d) 169 (dealing with the standard of proof); Vajie Salibian v. Minister of Employment and Immigration, F.C.A.D. A-479–89, 24 May 1990 (establishing the eligibility of claims from situations of generalized oppression); and Ahmad Ali Zalzali v. Minister of Employment and Immigration, F.C.A.D. A-382–90, 30 April 1991 (in which the claims of persons from societies in which no effective government exists were held to be potentially within the scope of the Convention refugee definition).

91. See note 62.

92. “The relevant provisions of the Immigration Act represent a unilateral effort to deal with a sub-group of refugee claimants considered, a priori, to be some other State's responsibility. Even before the politically difficult and intrusive functions ever arose, of determining and listing which other friendly countries might be considered entirely or partially safe, this unilateral aspect probably destined the effort to~ failure”: Law Reform Commission of Canada, The Determination of Refugee Status in Canada: A Review of the Procedure: Preliminary Study: A Consultative Document (Ottawa, 1991), 135.Google Scholar

93. “The fact that removals are not taking place to the extent authorized under the legislation means that there is still a ‘pull’ factor operating to draw people to this country under the guise of refugee claims”: Immigration and Refugee Board, note 82 above, at 2.

94. See notes 28 and 53.

95. See generally Amnesty International, Harmonization of Asylum Policy in Europe (London, 1990);Google Scholar and Meijers, H., “Refugees in Western Europe: ‘Schengen’ Affects the Entire Refugee Law,” International Journal of Refugee Law 2 (1990): 428.CrossRefGoogle Scholar

96. Immigration and Refugee Board, note 79 above, at 4–5.

97. Tractatenblad 1985, 102.

98. Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities, reproduced in Refugee Abstracts 9 (1990): 66.Google Scholar

99. Employment and Immigration Canada, Report on the Consultations on Immigration for 1991–1995 (Ottawa and Hull, 1990).Google Scholar

100. See note 90.

101. For example, during 1990 visa controls were in place for nine of the ten primary refugee source countries (Sri Lanka, Somalia, China, Bulgaria, Lebanon, El Salvador, Iran, Ghana, and Pakistan); Immigration Regulations, note 39 above, at S.13(1) and Schedule II; and Immigration and Refugee Board, note 77 above, at 20.

102. Law Reform Commission of Canada, note 92 above, at 136.

103. Ibid.

104. See generally Hathaway, James, “A Reconsideration of the Underlying Premise of Refugee Law,” Harvard International Law Journal 31 (1990): 129Google Scholar; Coles, Gervase, “Approaching the Refugee Problem Tolday,” in Loescher, Gil and Monahan, Laila, eds., Refugees and International Relations Oxford 1989), 373Google Scholar; and Garvey, Jack, “Toward a Reformation of International Refugee Law,” Harvard International Law Journal 26 (1985): 483.Google Scholar