Asylum Seekers versus Refugees Selected from Overseas

Asylum Seekers versus Refugees Selected from Overseas

Part 2 on The Indo-Chinese Refugee Private Sponsorship Program


Howard Adelman

What quickly emerges from any study of the last 40 years in Canada’s dealing with refugees is the deep dichotomy that developed between the asylum seekers who arrived in Canada on their own and claimed refugee status within Canada or at the U.S. border, and the many more refugees selected by Canada from refugee camps abroad and allowed entry into Canada under relaxed immigration criteria. In fact, many of the Chilean refugees were not technically refugees for they were interviewed in prison or, at least, within the country and picked up at Chilean airports on chartered Canadian flights. To understand the program of refugee selection abroad, it helps to compare it to the development of the asylum program that was really formally born at the time of the Indochinese refugee movement beginning with a ten year pregnancy period once Canada became a signatory to the Convention in 1969.

Asylum claimants initially were very few in number, a tiny program entailing only about 200-300 claimants per year in the latter half of the seventies when Canada, after the fall of Saigon to the communists in 1975, began to admit Indochinese refugees from Vietnam as Convention Refugees selected abroad between 1975-1978. When the Indochinese refugee sponsorship movement was at its height in 1980, the number of asylum claimants had grown to 1,000; 40,000 government and privately sponsored Indochinese refugees arrived at the same time.

In the broad Canadian definition, refugees include both those selected from refugee camps under relaxed immigration criteria and those who claim refugee status in Canada – asylum seekers. Refugees in general are people forced to flee their country and who are afraid to return because of war, violence or persecution based on race, religion, nationality, political opinion or membership in a particular social group. Asylum claimants who apply for Convention refugee status do so under the International Refugee Convention and must establish that they have a well-grounded fear of persecution for they belong to a group that has been targeted for persecution. Refugees selected abroad need not be Convention Refugees in the legal sense as long as Canada defines them as belonging to a designated class of immigrant since the 1976 legislation came into force in 1978.

Before then, the tens of thousands of east-European refugees (Hungarians in 1956-7, Czechs in 1968) were admitted under a Canadian refugee definition adopted by the government in 1951 which defined a refugee as “a person who, as a result of events arising out of WWII, was displaced from one European country to another and has not been resettled, or (b) because of a fear of persecution on religious, racial or political grounds, left one of the Soviet-bloc countries since the International Refugee Organization terminated  its activities on December 31, 1951 and has not been permanently resettled.”

In 1970, after Canada ratified the 1951 Convention( 1969) (as modernized by the 1967 protocol), Canada established a committee to make recommendations to the minister regarding people claiming refugee status in Canada. The government also decided to use the Convention definition as a guideline for selection abroad shorn of the pre-1951 restrictions to Europe for refugee selection abroad. These refugees were to be selected  using a very liberal application of the point system; visa officers were given discretionary power to override the point system, especially when assistance was available in Canada for resettlement. In addition, there was an oppressed minority (OM) policy that allowed the selection of oppressed people still within their country of citizenship/habitual residence.

The Ugandan Asians came in under the OM policy, defined by the department as the convention definition minus the requirement of being outside the country of citizenship. The point system was applied and approvals made on the basis of the discretionary decisions of visa officers. In Chile. Argentina and Uruguay the OM policy was used for people still in their country, the Convention Definition for those outside, and, thirdly, by cabinet direction for political prisoners. Between 1975 and 1978, Canada used the Convention Definition as the guideline for admissions for the Indochinese until the Designated Classes came into force. In the post 1976-78 period there was still a “Convention Refugee in need off resettlement” category and three designated classes – Indochinese, Latin Americans (based on the OM definition), which later became the Political Prisoner and Oppressed Persons Class, and the Self-Exiled Class used for Soviet Jews and other East European refugees. The Convention Definition was considered as lacking sufficient flexibility to encompass the people encountered in the refugee camps of West Europe.

Many of the Indochinese would not have qualified as Convention Refugees for they were primarily fleeing war and a repressive regime rather than fleeing persecution that targeted a group to which they belonged. The general classification, rather than an individual hearing and review, made possible the huge enhanced intake of Indochinese refugees both in absolute numbers and as a percentage of those who fled Indochina from 1979 onwards. Canada before the eighties did not see itself as primarily a country of first asylum. Though it strongly supported the United Nations Convention Relating to the Status of Refugees in 1951 and had been active in its drafting, Canada did not adopt the Refugee Convention until 1969, eighteen years later. But strong currents of change were underway that characterized the seventies.

The 1976 Immigration Act (proclaimed in 1978) was the first to include a reference to refugees and established specific goals that included the promotion of Canada’s demographic, economic, social and cultural goals while also providing for family reunification, non-discrimination and the fulfilment of Canada’s international obligations. In an effort to enhance cooperation between the government and Canadian citizens, the new act made provision for groups of five or more individuals or agreement holders to privately sponsor refugees. But the program for asylum claims remained unchanged. Designed to handle at most 500 claims a year, by 1980 there were 1,000 claims. This was the prime motive in imposing visas in 1979 – to stem the flow of asylum claimants. It was one thing for us to select refugees from abroad; it was another for self-selected refugee claimants to make their way to Canada and claim entry by right under international law.

Changes were also afoot in another area that would have an enormous impact on Canada’s refugee intake. Canada passed the Charter of Rights and Freedoms in 1982, effectively embedding John Diefenbaker’s 1958 Bill of Rights in the Canadian constitution. Canada was also developing a very independent foreign policy with rights as a central pillar. While America defined Latin America as an arena in which the Cold War was taking place through proxies, Canada primarily viewed the conflicts as home-grown resulting from gross disparities between rich and poor with citizens fleeing repressive regimes. The U.S. partnered with central and South American military regimes; Canada partnered with NGOs and humanitarian aid organizations. The result: the Canadian government facilitated the intake of Salvadorans and Guatemalans as designated classes. Between 1982 and 1987, Canada admitted 15,877 Latin American “refugees”, 11,251 from El Salvador. An additional family program brought the total to 20,955 over five years.

In the same period, on the asylum front, the asylum seekers kept coming in increasing numbers so that, by 1984, five years later, Canada was dealing with 10,000 claimants. The system ground to a slow walk as backlogs built up, thereby lengthening even more an already complex process. Four interventions changed the direction of refugee asylum policy in Canada which I dub the dropping of a pair of shoes and then a pair of heavy boots. In 1985, in the Singh decision, the Supreme Court of Canada ruled that asylum claimants had the right to appear personally before the decision-maker because the Charter of Rights and Freedoms applies to all persons on Canadian soil and every individual in Canada, not only citizens or legal residents, are entitled to protection.

The second shoe to drop was the Plaut Report. Rabbi Gunther Plaut was commissioned to write a report proposing a model for a new refugee determination system which was tabled in Parliament in the spring of 1986. It not only provided a system for universal application for all applicants, an independent Refugee Board, two member panels hearing the claim and requiring only one assent for the claim to be approved while written reasons had to be given if both members denied a claim. There was a built-in appeal system first to another member of the Board to review a negative decision and then, if denied again, the claimant had a right to appeal to the Federal Court. An interpretation by the Minster of Immigration, Lloyd Axworthy (though John Roberts was the minister when Plaut was appointed) that gave the benefit of doubt to the claimant’s evidence in refugee hearings also significantly skewed the claims process in favour of the claimant. New legislation tabled in Parliament in 1987 largely following the recommendations of the Plaut Report though they did not come into law until the beginning of 1989.

The third intervention was a boot rather than a shoe for it galvanized a response by Canada based on fear rather than legislative or judicial deliberations. The first boot was the arrival of two ships carrying refugees. A group of 174 Sikhs arrived on Canada’s eastern shores of Shelburne County as the ship carrying them ran aground off the shores of Nova Scotia almost twenty-five years ago to the day on which I am writing this paragraph on 6 May 2015. Subsequently in the summer of 1990, a group of Sri Lankans then arrived off the west coast. The idea that Canada could not be a country of first asylum dissipated quickly. While the first boatload had been welcomed, the second set off a panic and fears that hordes of refugees would be headed to Canadian shores, especially given the interminable nature of the claims process and the likelihood that the claimants, whatever the merits of their claims, would be well settled before there was any real move to deport them even if their claim was denied. The legislation included a Safe Third Country provision that finally came into effect in 2004 after an agreement with the U.S. was signed denying the right of anyone to enter Canada to make a claim if they had traveled to Canada via a country that protected refugees, such as the U.S., unless they had a relative within Canada to sponsor them. The Minister was originally required to declare which countries were safe, but, when the legislation was initially passed, Axworthy chose not to do so.

The second boot to drop was the appearance of a few terrorists in Canada in the decade and a half before 9/11 and the destruction of the twin towers in New York when two hijacked planes flown by terrorists were flown directly into the buildings. If the first boot was fear of arrival of refugees by sea, the second boot was the fear that those arriving were terrorists – in 1986 a convicted Palestinian terrorist, in 1991 an Iranian alleged assassin, Tamils form Sri Lanka accused of being fund raisers and supporters for the Liberation Tigers of Tamil Eelam fighting for an independent state in the north of their country.

A trend already underway became solidified. Onshore refugee claimants displaced refugees selected offshore as the main source of refugees arriving to and accepted by Canada. The numbers rose from 10,000 in 1996 to double that number ten years later. In five more years, the number of claimants had almost doubled again to 44,500 in 2001, the year of 9/11.  Of those claims, 58% were given positive decisions. In the meanwhile, the number of refugees selected abroad began falling from just under 14,000 in 1989 (compared to 30,000 per year in 1979 and 1980) to under 8,000 ten years later. The number of claimants was over six times the number of refugees brought from overseas and those numbers represented just over 30% of the refugees who won their asylum claims or less than 25% of Canada’s intake of refugees in 1997. That reversal of the proportion of refugees selected abroad in favour of self-settled refugees arriving in Canada and claiming refugee status continued to the present.

In 2012, under the leadership of the Immigration Minister Jason Kenney, reforms were introduced to streamline the asylum process to eliminate the build-up of backlogs and inhibit bogus claimants. But the results of the reforms were opposite to what had been anticipated. In 2014, 35% of refugee claimants from Hungary, overwhelmingly Roma, were accepted as opposed to only 12% in 2012. Hungary was third from the top in producing refugees.

The top 20 countries, both safe and presumably unsafe, by number of decisions finalized (both new and backlog), in 2014 were:

  1. China             42%     (34% in 2013)
  2. Pakistan        78%     (72% in 2013)
  3. Hungary        35%     (20% in 2013)
  4. Colombia      52%     (38% in 2013)
  5. Syria             93%     (90% in 2013)
  6. Nigeria          53%     (35% in 2013)
  7. India             18%     (15% in 2013)
  8. Korea (North) 0%
  9. Afghanistan  77%     (71% in 2013)
  10. Haiti              41%     (40% in 2013)
  11. Congo (DRC) 43%     (49% in 2013)
  12. Iraq               82%     (63% in 2013)
  13. Sri Lanka      58%     (51% in 2013)
  14. Croatia         11%     (11% in 2013)
  15. Slovakia       52%     (8% in 2013)
  16. Ukraine        59%     (41% in 2013)
  17. Bangladesh 64%     (39% in 2013)
  18. Iran             71%     (75% in 2013)
  19. Egypt          86%     (89% in 2013)
  20. Somalia    54%     (59% in 2013)

The acceptance of refugee claimants granted asylum who came from Slovakia was fifteen times as much as before the reforms. Even from Mexico, though not in the top twenty but also defined as a safe country, acceptance rates went up 50%. None of this takes into consideration that, according to the analysis of decisions made by refugee adjudicators by Professor Sean Rehaag of Osgoode Hall Law School, York University, acceptance rates were more determined by the luck of the draw in the adjudicator hearing the case than what happened in a hearing. Rates of acceptance were predictable based on who was assigned to hear the claim even when adjustments are made to take into account that some adjudicators focus on countries with a record of producing high numbers of refugees whereas others focus on countries with a record of producing few refugees. This skewing of decisions even seems to take into account refugee hearing officers assigned to handle expedited claims.

The only figure that dropped was the intake of refugee claimants. The reforms seemed to cut the intake in half and the processing period from 20 to 3 months, but by 2014 the intake was up over 30% from the year before. The trend upwards seems to be continuing into 2015. Although there was a temporary respite in the number of claimants, the percentage accepted offset this shift somewhat and the numbers coming are rising again. If the intent of the new legislation was to deter asylum claimants under the rubric of discouraging “bogus” claimants, it has not worked. Further, if past correlations offer any guidance, a rise in refugees admitted through the refugee claims process can be roughly correlated with a decline in the selection of refugees from overseas under the designated class category. Quite aside from being a correlation, is the rise in one category somehow an indirect cause of a decline in the other category, perhaps unconsciously motivated?

To be continued.


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