By Anca Gurzu, Embassy Mag, Published April 7, 2010

When Immigration Minister Jason Kenney unveiled his proposed refugee reform package last week, a key aspect was the creation of a “safe countries” list. The list, the minister said, would be an additional tool in addressing massive spikes of unfounded claims from certain democratic countries that had strong human rights records. At the same time, aware that such a list could result in a public and media backlash, Mr. Kenney was quick to point out that many other European countries have been successfully using this method. However, legal experts are pointing to a major difference between Canada’s proposed legislation and that of other European countries: the word “safe” doesn’t appear anywhere in the Canadian bill. This omission, they say, places too much legal discretion in the hands of the minister and raises serious questions about the law’s potential use.

Bill C-11 outlines changes to Canada’s Immigration and Refugee Protection Act by introducing, among others, a “Designated Countries of Origin” section.

“The Minister may…designate a country or part of a country or a class of nationals of a country if, in the Minister’s opinion, they meet the criteria established by the regulations,” the bill reads.

Refugee claimants from a designated country would still have the right to an initial hearing. However, if their claim is rejected, they would not be allowed to appeal the decision at the newly-proposed Refugee Appeal Division like other claimants. The purpose, the minister said, is to fast-track the system.

But the fact the word “safe” doesn’t appear in the proposed law is concerning, said Peter Showler, former chair of the Immigration and Refugee Board.

“How is it possible that the word ‘safe’ is not part of the legislation?” Mr. Showler asked. “Any word that is in the law is very precise—it’s there for a reason. And the same is true if a word is not there. The fact that this word is not in the law is not an accident.”

Mr. Kenney said the criteria for listing countries will be built into regulations, and the department will assess a country’s democratic level and human rights record when establishing those regulations. However, Mr. Showler said amendments to legislation need to be approved by Parliament, while regulations do not have to follow that process and are much easier to change.

The lack of the word “safe” in the bill sends the wrong message, Mr. Showler said.

“It is giving the minister the power to say ‘If you come from certain countries, you don’t get to have an appeal,” he said. “But it’s not supposed to be certain countries, it’s supposed to be safe countries. The word ‘safe’ should be in the law—that simple. There is no reason for not having it there.”

Europeans include ‘safe’

As Mr. Kenney noted, “safe country” lists are not novel in Europe. Although the implications and use differ from country to country, national governments have taken to designating some countries as “safe” to prevent backlogs of unfounded refugee claims.

Many EU member states have either included the word “safe” in their asylum laws or have provided an initial description of the countries that would fall under that category.

Finland’s Aliens Act states that “a State where the applicant is not at risk of persecution or serious violations of human rights may be considered a safe country of origin for the applicant.” The law then goes on to outline the criteria for assessing a safe country of origin.

In Poland, a safe country is “the country of alien’s origin, in which…no persecutions take place due to race, religion, nationality, membership in a particular social or political opinion.”

Portugal’s asylum law states that a safe country of origin “shall mean the country of nationality or habitual residence of the applicant, in relation to which the applicant has not invoked any serious reason by which it may be considered unsafe.”

The Irish Immigration Act places a greater burden of proof on a refugee claimant from a safe country, but the act also outlines the criteria the immigration minister needs to follow when adding a country to the list.

Even in the United Kingdom, whose legislation Mr. Kenney is trying to mirror, the law—although not directly mentioning the word “safe”—reads that the secretary of state is allowed to add a state to the list “if he is satisfied that there is in general in that State…no serious risk of persecution of persons entitled to reside in that State.”

The current wording of the Canadian refugee reform bill gives the minister too much power, said Errol Mendes, law professor at the University of Ottawa.

Mr. Mendes said the proposed legislation “could also be used inappropriately for political reasons” if, for example, “one country falls out of [Canada’s] disfavour.”

By allowing claimants from all countries to have an initial hearing, the government made the proposed legislation “charter-proof,” Mr. Mendes explained, referring to the Charter on Rights and Freedoms.

“But I think there has to be a lot more honesty in terms of what he is trying to do here,” he said.

Stephen Green, chair of the national citizenship and immigration section at the Canadian Bar Association, said the government’s decision to put greater weight on the regulations reflects an ongoing Conservative trend.

“A lot of the provisions affecting people are in the regulations,” he said. “[This bill reflects] what the government has recently done with a lot of its legislation. The government is putting the bones and the skeleton in the legislation, but the blood will be in the regulations.”

It’s important to see what the regulations contain and how the safe countries list will be used, said James Milner, refugee expert and political science professor at Carleton University. However, Mr. Milner did say that the bill’s current wording could potentially become “susceptible to politicization.”

“Why Canada’s domestic refugee system has been so respected internationally is because of its independence from the government,” he said. “It may not be this government, and it may not be this minister, but it’s not hard to imagine somewhere down the road a minister that could abuse powers that come about in this legislation.”

agurzu@embassymag.ca