Detained Tamils case exposes Canada’s brutal refugee policy

Posted by admin on Apr 18th, 2011

By Peter Showler, Ottawa Citizen April 18, 2011 Comments (7)

The federal government’s rhetoric about the evils of human smuggling has crashed into the twin barriers of unyielding detention policies and common sense. Canada has traditionally maintained a moderate policy on the detention of asylum seekers. The legal justifications for detention are reasonable and functional: lack of identity documents, a danger to Canada or a flight risk. Fewer than 10 per cent of claimants are detained and most only for a short period of time, usually to confirm their identity. Other countries, including the United States, the United Kingdom, and Australia, have sought to deter refugee claimants by detaining them upon arrival. Those punitive policies have not worked. They have proven to be tremendously expensive, injurious to traumatized refugees, and ineffective in reducing the flow of refugee claimants.

Last August, the Sun Sea arrived from Thailand with 492 Tamil passengers. All of them were detained. Government officials will tell you the children were not “detained,” which is technically correct and realistically false. The children had a choice. After their flight from Sri Lanka, lengthy exile in Thailand and a three-month voyage in the bottom of a derelict vessel, they could remain with their mothers in detention or go with English-speaking strangers to an unknown place. Prison guards, kinder than their government, brought toys for the children.

Since their arrival, the Canadian government has pursued a harsh detention policy toward all of the boat passengers, although it soon became obvious that many had no connection with the Tamil Tigers. The Canada Border Services Agency (CBSA) stubbornly opposed the release of any of the claimants, imposing higher standards for identification documents than for normal refugee claimants. When the IRB did order the release of passengers, the government fought the release orders in Federal Court, even those involving women and children, although most of the orders were upheld by the court.

In one notable case, the Federal Court criticized the government’s position as an abuse of process when it continued to hold a passenger who had been ordered released on three separate occasions.

During this same period, the government mounted a campaign against human smuggling. Vic Toews, the Minister of Public Safety, had already warned us of the arrival of a boat carrying passengers from Thailand. Five phrases were repeated again and again in government messages: human smugglers, human traffickers, Tamil Tigers, terrorist organization and more boats coming. Smugglers and their passengers might have connections to the Tamil Tigers, which was a terrorist organization. These allegations were potentially true. However the government did not mention the humanitarian side of the story, that the passengers might also be traumatized refugees who had legitimate fears of persecution and had no legal opportunity to claim refugee protection in Thailand. At the time, no one knew which story was true but public opinion polls showed a sharp decrease in support for refugees.

Soon after the boat’s arrival, the government introduced Bill C-49, the Bill Preventing Human Smugglers from Abusing Canada’s Immigration System Act. The bill primarily punished the smuggled rather than the smugglers. Anyone found to be a refugee could not apply for permanent residence or reunite with their family for another five years. All passengers in a group arrival, man, woman and child, would automatically be detained for up to one year without a right to challenge their detention in court.

Every lawyer in the country understood that this provision violated the Canadian Charter of Rights. The Supreme Court of Canada had recently struck down a law that imposed three months of detention without judicial review. More cynical commentators said the government’s true purpose was to embarrass the opposition rather than to pass an unenforceable bill. To their credit, all opposition parties publicly opposed the bill on principle and it was withdrawn from the House order paper. Now an election campaign is underway and the Conservatives have made human smuggling a key election issue accusing the opposition of being “weak on human smuggling.”

Nearly eight months after the Sun Sea’s arrival, fewer than 40 Tamil claimants remain in detention. To date, two men have been found to be inadmissible to Canada due to connections with the Tigers. Running out of arguments to sustain the detentions, CBSA has been demanding that detainees provide proof that they have paid off the smugglers before being released. The convoluted logic is that the detainees could be flight risks; they might go underground in order to pay off their debts even though they could legally work until their refugee claim is decided. In order to comply with that demand, relatives of the detainees are selling land and possessions or borrowing money in order to pay off the smugglers. In effect, CBSA has become a debt collector for the smugglers while the Conservative government continues to rail against the evils of human smuggling. Go figure.

National security is an important issue that should not be taken lightly. It should also not be the manufactured excuse for the unreasonably harsh treatment of refugees. Ever since 9-11, refugees have been unfairly and foolishly linked with North American security. It is unfair because real and unnecessary damage has been done to some refugees. It is foolish because the real security dangers are ignored while public and government attention is diverted elsewhere. Requiring refugees to pay off the smugglers is one of the more ludicrous examples of narrow, Orwellian thinking. Next thing you know, they’ll be taking away manicure scissors at airport security. Oh wait, they already do that.

Peter Showler teaches refugee law at the University of Ottawa where he is the director of the Refugee Forum at the Human Rights Research and Education Centre.
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