Wednesday, January 09, 2008

Why don't Canadians understand Canadian Refugee Law?

The CBC reports that the Canadian Border Services Agency is trying to deport Laibar Singh, a paralysed Sikh man who has taken refuge in a Vancouver temple. (here and here)

Singh came to Canada in 2003 on a forged passport. He suffered a massive stroke three years later that left him quadriplegic and unable to care for himself.


Singh initially sought refugee status in 2003 on the grounds that he would be persecuted by police in Punjab, where officials have accused him of links to separatist militants, but his refugee claim was denied that same year.

Now, what bothers me is not the fact that Singh's health problems are not grounds for his refugee claim, since that's settled law and although it seems harsh, consider how quickly our whole system would collapse if we accepted refugees on the SOLE BASIS that they came from countries with poor(er) medical care.

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85: restricting mechanisms reflect the fact that the international community did not intend to offer a haven for all suffering individuals. The need for “persecution” in order to warrant international protection, for example, results in the exclusion of such pleas as those of economic migrants, i.e., individuals in search of better living conditions, and those of victims of natural disasters, even when the home state is unable to provide assistance, although both of these cases might seem deserving of international sanctuary.

However, I'm perturbed by the numerous comments here, which often come down to a simplistic "he's illegal, deport him!" analysis (if it can be called that).

The Refugee Convention expressly forbids such tactics:
Article 31
Refugees unlawfully in the country of refugee
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
If you're being persecuted by your government, how exactly are you going to obtain a passport? Or, if you need to escape that country to save your life, but you need a visa to enter a reasonable country of refuge, but that country won't issue you a visa if it thinks you're going to become a refugee, are you supposed to just sit there and die?


Randall said...

Sarah, you make a valid point regarding the legality (under the Refugee Convention) of Mr. Singh's status on his arrival in Canada. That being said, I wonder if Mr. Singh did not become an illegal immigrant when he chose to avoid removal by going underground after the initial deportion order was issued.

Those of us not schooled in Canadian and International Law might see your argument as somewhat moot. However, to acknowledge your point of fact, rather than say "he's illegal, deport him!" - we should say "after due process his refugee claim was denied and he must now be deported".

While this is truly a sad case with many issues, my concern is that the integrity of Canadian Immigration Law and Policy must be respected as to its intentions and enforcements. What amounts to mob action should not be allowed to obstruct a legal removal order. As a law student, I expect that you can appreciate that consideration.

kikithebushkangaroo said...

Sara, I think your argument is late. Those who are calling his status illegal are completely correct in that assumption. While it is true many people come to this country as refugees without proper documentation, this country has a mechanism for dealing with this situation. Once a decision has been made, however, the applicant must abide by that decision or be in contradiction of Canada's laws.

Mr. Singh has recieved the diligence we give to those who wish to enter our country and has been denied by that process. As such, he must now be deported to his homeland per Canadian Law. The appalling thing is that despite this fact, he will probably be able to use this country's relaxed attitudes to remain here indefinitely while many others who respect our government and laws wil begrudgingly leave Canada and return home as requested.

Sarah L Boyd said...

@ Randall:
I agree, there's more to Mr. Singh's illegality. That's (part of) why it bothered me that such focus was placed on the forged passport issue. There's also a problem with the idea that potential immigrants should respect the integrity of Canadian Immigration Law (though, of course, one hopes they will). Canada doesn't respect said integrity, so it's hard for me to work up any displeasure at claimants who try to game the system, since large portions of Canada's immigration and refugee policy rest on finding loopholes in, or ignoring, our international obligations to refugees.

@ kikithebushkangaroo: You're reight that my analysis is "late" in terms of when Mr. Singh became illegal. My point was more directed at those who assumed he was illegal from the start because of his forged passport.

I am not intimately familiar with Mr. Singh's case, and it is possible he is simply not a legitimate refugee. However, the problems with Canada's refugee determination system are such that I would not say it had performed "due diligence" unless I saw the case file myself. I agree that mob rule is an innappropriate way to alter law and policy, but I have to give some credit for actively fighting problematic law and policy as opposed to simply going underground. That said, again, for all I know Mr. Singh could be among the worst of immigration scammers; but not every case is as cut-and-dry. The reality is that Canada does deport or otherwise refuse legitimate refugees, and our national self-image as a fair and welcoming country is far from accurate.