Showing posts with label IRPA. Show all posts
Showing posts with label IRPA. Show all posts

Monday, 21 November 2016

A ‘Catch-All’ Provision with Extreme Overreactions? The Legalistic Snares within Section 34 of Canada’s Immigration and Refugee Protection Act by James Gacek

No sooner was the United States presidential election called in favour of Donald J. Trump had the infamous ‘Move-to-Canada’ memes, tweets and photos begin circulating social media (c.f. Austen & Levin, 2016). Worries and concerns spread in earnest shortly after President-Elect Trump’s win, with the Internet working itself into a fury and following with a barrage of opinions about leaving ‘The Land of the Free’ and heading north past the 49th parallel. Various media sources had even been reporting that the website of Canada’s immigration department had crashed, overloaded by Americans looking for a new country to call home (Austen & Levin, 2016).
  

Since the election, a desire to flee the United States and its election decision has routinely been expressed. Yet on the other side of the border, Canadians, while having worries and concerns of their own about the future of Canada-U.S. relations, also retained whiffs of pride and smugness. ‘At least Trump isn’t our leader,’ ‘Canada is a diverse country,’ ‘at least Canada accepts all people from all backgrounds’ were just a few of the thoughts floating in the minds of Canadians, of whom were nervously laughing to each other while they glued themselves to each minute of the presidential election coverage. We pride ourselves on the belief that, in Canada, we would never close our borders to immigrants and refugees, and that such authoritarian and neo-fascist notions of migrants and refugees heard from the American presidential campaign would never be accepted north of the border. Canadian values of multiculturalism and diversity, we believe, trump vitriolic hate speech (and in effect, would trump Trump-like characters hoping to lead our country one day).


However, in terms of Canadian immigration laws, it is perhaps the case that Canadians reconsider such beliefs. While examining Canada’s Immigration and Refugee Protection Act (S.C. 2001, c.27), federal legislation which deals with the protection of immigrants and refugees, our main immigration law is anything but clear and definitive for immigrant and refugee admissibility (Ross, 2014). Arguably, one of the most contentious provisions in the IRPA is section 34. In force since 2001, section 34 deals with the inadmissibility of permanent residents or foreign nationals into Canada on the reasonable grounds of security issues. It reads as follows:

34(1) A permanent resident or a foreign national is inadmissible on security grounds for

(a)   engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests;

(b)  engaging in or instigating the subversion by force of any government;

(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;

(c) engaging in terrorism;

(d) being a danger to the security of Canada;

(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or

(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c). (S.C. 2001, c.27)


Notwithstanding the broad (and arguably, vague) interpretation of ‘danger’ and ‘terrorism’ (of which the latter has yet to reach a universal definition), of interest to many Canadian immigration and legal-aid lawyers is the last statute, section 34 (1)(f). This statute is seen by many legal professionals and academics as “an unjust statute being manipulated by high-handed federal bureaucrats to punish law-abiding people who ought to qualify for refuge or residence in Canada” (Ross, 2014). Indeed, people attempting to make Canada their new home have seen an increased difficulty in the post-9/11 era. Such immigrants or refugees who perhaps at one time in their life, for instance, informally engaged in political acts, gave a one-time donation to opposition groups in their countries of origin, or who acted as “informal contact[s] for foreign journalists who were seeking interviews with anti-government guerrillas,” face the threat of deportation on the grounds that they pose as security risk to the people of Canada (Ross, 2014).


Under section 34, it makes no difference to Canadian immigration officials whether the person seeking refuge or residence has engaged in violence or subversion themselves. The broad terminology used within the section itself is enough for immigration officials to reason that the applicant once supported an organization at some point in the past, to which the organization either “possibly did engage in subversive activities[,] or that at some time in the future[,] [the organization] possibly will” (Ross, 2014).


Indeed, Canadian immigration law is consistently faced with determining how to define such acts as ‘subversive’ or ‘terrorist,’ as unfortunately, section 34 could easily apply to anyone in our conflict-ridden world. Therefore, while some applicants have never directly engaged in political violence themselves, the broad language of the section continues to widen the scope of inadmissibility, of which increases the quantity of people facing the threat of deportation from Canada, and the outright rejection of foreign nationals’ applications for residence or refuge.


Furthermore, as the Canadian Immigration Blog (2015) indicates, several court judgements have succinctly concluded that the definition of membership within section 34 (1)(f) does not require direct complicity with the wrongful conduct of the organization itself, nor is it a requirement for the member to direct comply with the actual participation of wrongful behaviour and conduct in the future (c.f. Ezokola v. Canada, 2013; Joseph v. Canada, 2013; Posteh v. Canada, 2005). In effect, the broad interpretation of membership parallels the interpretation of ‘an act of subversion,’ ‘an act of violence,’ ‘terrorism’ and ‘Canada’s interests,’ all of which are open to the Canadian government’s intentions to further securitize the Canadian population for its own ‘safety.’ However, such increases in security have been justified on the basis of an “indeterminate danger,” in which case one could argue that such securitizing discourses have become contingent upon suspicion rather than reasonable grounds (Bell, 2006, p. 149; see also Walby et al., 2016).


In short, Canadians should reconsider their whiffs of pride as their American counterparts’ transition into a Trump administration. It may be the case that Canadian ‘values’ (however we appear to define them) differ from the Americans, and it is my hope that Canadian culture will continue to be welcoming and inclusive for people from all walks of life. However, section 34 of the IRPA, as it currently stands, is a strong reminder that Canadian immigration law must reflect such changes for inclusivity, rather than broadening the scope of deportation and securitization from ill-perceived threats. Bridges, not walls, must be built so that we may reach out and support those in need in these desperate and hostile times. As Bauman contends, “the sole way out of the present discomforts and future woes leads through rejecting the treacherous temptations of separation” (2016, p. 18). Indeed, let us work together in solidarity towards an immigration law which rejects such treachery, and combat the political speech of separation that is based upon extant suspicions, animosities and overarching indifference towards an-Other.



References:

Austen, I. & Levin, D. (2016). “As Americans Look North to Flee Donald Trump, Canada Peers Back in Worry.” The New York Times: November 9.


Bauman, Z. (2016). Strangers at Our Door. Cambridge: Polity Press.


Bell, C. (2006). Surveillance strategies and populations of risk: biopolitical governance in Canada’s National Security Policy. Security Dialogue 37(2): 147-165.


Canadian Immigration Blog (2015). ‘Section 34(1)(f) of the IRPA – membership does not require complicity.’ Belissimo Law Group: April 13.


Ross, O. (2014). “In Canada’s immigration law, anyone can be a terrorist.” The Star: April 27.


Walby, K., Lippert, R., & Gacek, J. (2016). “Securitizing ‘National Interests’: Canadian Federal Government Departments, Corporate Security Creep, and Security Regimes.” In National Security, Surveillance, and Terror: Canada and Australia in Comparative Perspective. R. Lippert, K. Walby, I. Warren, and D. Palmer (eds.). London: Palgrave. Pp. 155-176. 



Legislation cited:

Ezokola v. Canada (M.C.I.), 2013 SCC 40.


Immigration and Refugee Protection Act (S.C. 2001, c.27).


Joseph v. Canada (M.C.I.), 2013 FC 1101.


Poshteh v. Canada (M.C.I.), 2005 FCA 85.



© 2016 James Gacek
James Gacek is a PhD candidate at the University of Edinburgh, Edinburgh Law School. While his research interests are many, his work can be generally categorized within the realms of socio-spatiality, socio-legality and socio-sexuality. He has begun to publish in the areas of incarceration, genocide carcerality, film and media studies, cultural and visual criminology, exploitative relationships between human and animals, and emerging Canadian state surveillance. James is an American Sociological Association Student paper award recipient (2014).

This blog post is cross-posted at Robson Crim.

Wednesday, 24 June 2015

Designated Inhospitality: The Treatment of Asylum Seekers Who Arrive by Boat in Canada and Australia by Luke Taylor

A recent article written by Luke Taylor and entitled, "Designated Inhospitality: The Treatment of Asylum Seekers Who Arrive by Boat in Canada and Australia" was published in the McGill Law Journal - (2015) 60:2 McGill LJ 333.   The following is the English abstract:


This paper argues that there are distinct parallels between changes to the Immigration and Refugee Protection Act enacted by Bill C-31 (2012),  in particular the Designated Foreign National regime (DFN), and Australia’s treatment of asylum seekers who arrive by boat. It is contended that recent Australian history and policy demonstrate the perils of adopting an ideology of control and exclusion toward asylum seekers instead of a politics of hospitality, and that Australia’s present political climate provides a stark and salutary warning to Canada, as it follows a similar path of securitization. The paper first explains what is meant by a politics of hospitality. In Part I, it analyzes Australia’s attitude toward, and its treatment of, asylum seekers, focusing in particular on the period since 1989. It is argued that Australia’s inhospitable stance toward asylum seekers has had discernible negative outcomes that provide important les-sons for Canada. Part II provides a brief historical overview of Canadian policy toward asylum seekers, followed by an analysis of the DFN regime with reference to international law. It then argues that the DFN provisions contravene the Canadian Charter of Rights and Freedoms. The paper concludes by suggesting that Canada is at risk of following Australia’s security-oriented, inhospitable stance toward asylum seekers.

Tuesday, 15 July 2014

Can Human/People Smuggling Be Qualified As A Humanitarian Act

Are all human smugglers cut from the same cloth? How should they be constructed and how does the law as well as those who formulate the law do so? As we shall see below, human smugglers tend to be constructed as being motivated by money and vultures feeding off the vulnerabilities of others. While many human smugglers do engage in their acts for profit, others may do so largely for humanitarian purposes. From a legal perspective, international law defines human smuggling differently from domestic jurisdictions such as, amongst others, Canada and Australia.

The Law

Under article 3(a) of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, the smuggling of migrants is defined as the "procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident." By the Protocol's terms, unlawfully shepherding individuals facing persecution into another country for humanitarian purposes is not proscribed activity. Such recognition is important for it acknowledges that individuals fleeing persecution may need assistance to secure their migration to another jurisdiction even if illegally.[1]

States have however taken a different approach to human smuggling. Under Canadian law for example, it is defined much more broadly. Section 117(1) of the Immigration and Refugee Protection Act states the following: "No person shall organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act." The breadth of this provision suggests that even those who do so for humanitarian reasons are captured under these provisions. This is further confirmed by the fact that under s.121(1)(c) of the IRPA, the commission of acts committed under s.117 for "profit, whether or not any profit [is] realized" (amongst other reasons) is considered an aggravating factor.  The British Columbia Court of Appeal arrived at this very conclusion in R v Appulonappa. By contrast, engaging in human smuggling for humanitarian reasons might be considered a mitigating factor, but it is clear by the language that it will not relieve the smuggler of liability. 

In addition, engaging in "people" smuggling is grounds for inadmissibility into Canada, even where, as in s.117, such conduct is for humanitarian reasons. In Canada (Public Safety and Emergency Preparedness) v JP, Canada's Federal Court of Appeal concluded that people smuggling even for humanitarian grounds was a valid ground for inadmissibility (just as it is valid as basis for criminal liability under s.117 for human smuggling). As part of its decision, the Court of Appeal observed that in criminal cases, motives are usually irrelevant with respect to the elements of the crime. As such, whether or not someone engages in people smuggling with a humanitarian motive is irrelevant with respect to the intent to commit the prohibited act.

Rethinking Human Smugglers

To be sure, human/people smuggling for the purpose of financial gain should be appropriately outlawed. It exploits the vulnerabilities of those who may be fleeing on account of a well-founded fear of persecution. This is however clearly distinguishable from instances where a person assists another without seeking any financial gain. Furthermore, even where the smuggler receives some compensation which essentially covers the costs of the smuggling operation (i.e. food for the trip, fuel etc), one can hardly say that receipt of such compensation constitutes a "gain". Assisting other persons out of a desire to help does not necessitate that they become paupers or risk impoverishment. It is also useful to remember that not everyone is capable of undertaking an arduous journey without some assistance. If there is a right to seek asylum, it seems rather incongruous to deem as criminal behavior efforts to help asylum-seekers reach their destination (assuming again it is not undertaken for profit). The efforts of smugglers can assist many in obtaining refugee status. For example, it is worth noting that in the case of one human smuggler, Hadi Ahmadi, 886 of the 911 individuals he brought/smuggled into Australia received refugee status (this represents a 97% success rate).

This rather uncompromising approach which deems all human/people smuggling as criminal behavior is well represented in political discourse. Speaking as the Australian Prime Minister (as he then was) Kevin Rudd asserted that "People smugglers are engaged in the world's most evil trade and they should all rot in jail because they represent the absolute scum of the earth." He added, ""People smugglers are the vilest form of human life. They trade on the tragedy of others and that's why they should rot in jail and in my own view, rot in hell."

In contrast to this rather stark image projected by Mr. Rudd, others have articulated a rival image - that of a humanitarian seeking to help others escape persecution. One such person is Ali Al Jenabi, an Iraqi citizen, who, along with his family, was persecuted by Saddam Hussein's regime. Mr. Al Jenabi managed to escape Iraq and reach Australia. He sought to bring his family and others into the country. However as Bruce Haigh explains, due to lack of money and dishonest operatives in the informal transport networks, Al Jenabi entered the people smuggling "business" and managed to bring members of his family and hundreds more into Australia. Refugees such as Al Jenabi are well acquainted with the perils of fleeing persecution and can operate to help assist and navigate others to safety. While some human smugglers may personify the type of individuals Mr. Rudd described, they do not represent the entirety of those who attempt to assist others to find safe harbour.

Current Canadian (and Australian) law has not responded well to the diversity that exists among human smugglers. Furthermore, current domestic law in these and other jurisdictions has failed to consider the humanitarian purposes of the Refugee Convention and the protection of those fleeing persecution. Politicians have blinded themselves to the challenges faced by asylum-seekers in getting to their destination through legitimate routes. Lawmakers must appreciate the need for nuance and distinctions between smugglers and should design a system that countenances these differences.

[1] It is perhaps worth noting that article 31(1) of the 1951 Convention Relating to the Status of Refugees provides that contracting states shall not impose penalties on refugees for their illegal entry or presence into the contracting state. The terms of the article are directed at the refugees themselves and not those who may smuggle them in. However, it nevertheless reflects an understanding that refugee's migration into a contracting state may have to take place through illegal means or entry. If a bona fide refugee's illegal entry should not be punished under the terms of the Convention, should those who smuggle them in (provided it is not for profit) also be exposed to penalties and legal sanctions? Imposing penalties on those who can assist a refugee's migration to a safe territory may deter those from engaging in such assistance. Professor Guy S. Goodwin-Gill has observed however that notwithstanding the terms of s.31, states have nevertheless imposed penalties on refugees themselves. See Guy S. Goodwin-Gill, "Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection" in Erika Feller et al, Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (London: Cambridge University Press, 2003), online: <http://www.refworld.org/docid/470a33b10.html>.

 

Sources


Primary Sources

B010 v Canada (Citizenship and Immigration), 2013 FCA 87, online: CanLII  <http://canlii.ca/t/fwmwt>.

Canada (Public Safety and Emergency Preparedness) v JP, 2013 FCA 262, online: CanLII <http://canlii.ca/t/g1t6s>.

Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force22 April 1954). 

Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 15 December 2000, 40 ILM 384 (2001) (28 January 2004), online: <http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf>.

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 40 ILM 335 (2001), UN Doc A/55/383 at 25 (2000) (entered into force 29 September 2003), online: <http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf>. 

R v Appulonappa, 2014 BCCA 163, online: CanLII <http://canlii.ca/t/g6pg1>.

United Nations Convention against Transnational Organized Crime, 15 November 2000, 40 ILM 335 (2001), UN Doc A/55/383 at 25 (2000) (entered into force 29 September 2003), online: <http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf>. 


Secondary Sources

Guy S. Goodwin-Gill, "Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection" in Erika Feller et al, Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (London: Cambridge University Press, 2003).

Bruce Haigh, "People smuggler or the Schindler of Asia?" The Drum (7 May 2012), online: <http://www.abc.net.au/news/2012-05-07/haigh-people-smuggler-or-the-schindler-of-asia3f/3994310>.

Project Safecom, "The Case of Mr. Hadi Ahmadi" (undated), online: <http://www.safecom.org.au/ahmadi-case.htm>.

Refugee Action Coalition Sydney, "People Smuggling" (undated), online: <http://www.refugeeaction.org.au/?page_id=1809>.

Emma Rodgers, "Rudd wants people smugglers to 'rot in hell'" ABC News (17 April 2009), online: <http://www.abc.net.au/news/2009-04-17/rudd-wants-people-smugglers-to-rot-in-hell/1653814>.

Andreas Schloenhardt & Connor Davies, "Smugglers and Samaritans: Defences to People Smuggling in Australia" (2013) 36(3) University of New South Wales Law Journal 954, online: <http://www.austlii.edu.au/au/journals/UNSWLJ/2013/36.html>.