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>.

Judicial Review, Questions of Law of Central Importance and Refugee Appeals.

Over the past year, there has been a lack of comity amongst Federal Court of Canada justices regarding the appropriate standard of review of decisions emerging from the Immigration and Refugee Board of Canada (IRB) and particularly with respect to questions of law relating to or arising from the Immigration and Refugee Protection Act (IRPA).[1]

Since the Supreme Court of Canada's decision in Dunsmuir v New Brunswick, there are currently two standards of review in effect at common law with respect to administrative law decisions - reasonableness and correctness. Reasonableness represents a deferential standard that is concerned "mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."[2] By contrast, under a correctness standard, a "reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question."[3]

The Dunsmuir Court also highlighted that questions of law will not necessary deserve a correctness standard. The SCC has specifically identified constitutional questions, questions of jurisdiction, questions regarding the jurisdictional lines between two or more competing specialized tribunals, and questions of law that are of central importance to the legal system and outside of the expertise of the decision maker as deserving a correctness standard.[4] However the Court has asserted in post-Dunsmuir decisions that when decision-makers are interpreting or applying their "home" statute, there is a presumption of deference that should be accorded to their decisions.[5] 

All of this brings us back to the decisions of the IRB and in particular the Refugee Protection Division's (RPD) interpretations of law with respect to provisions of the IRPA in connection with s.96 (incorporating article 1A(2) of the Convention Relating to the Status of Refugees and as modified by article 1 of the 1967 Protocol Relating to the Status of Refugees).[6] In order to establish that one is a refugee, it must be established that the individual seeking refugee status is outside of their country of nationality or place of last habitual residence and is unable or unwilling to return on account of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. Interpreting what constitutes, for example, a particular social group or a political opinion is (and has been interpreted to be) a question of law. However, when the RPD engages with such legal questions rooted in their home statute, should it be accorded deference? Or, because the grounds are derived from the Refugee Convention which is fundamentally about human rights protection, is what is involved a question of law of central importance to the legal system and outside the expertise of the RPD members?

While it may be fair to presume a deferential standard given the home statute presumption, there are nevertheless legitimate reasons for why a correctness standard is appropriate when reviewing the RPD's legal interpretations of s.96 and other related refugee provisions in the IRPA such as s.98. In Pushpanathan v Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada applied a correctness standard when interpreting article 1F(c) of the Refugee Convention as incorporated into the former Immigration Act.[7] The Court concluded that article 1F(c) was primarily about the protection of human rights and the IRB had no relative expertise on such matters.[8]

Although Pushpanathan was a pre-Dunsmuir decision, more recently the Court in Ezokola v Canada (Citizenship and Immigration), interpreted the concept of complicity with respect to article 1F(a) of Convention.[9] In the process of doing so, the Court rather unhelpfully made no attempt to address the standard of review. However, in arriving at its interpretation, the Court appears to have engaged in its own legal interpretation rather than assessing whether the RPD's legal interpretation was reasonable. 

In Canada (Citizenship and Immigration) v B472, Justice Harrington articulated that a correctness standard was appropriate for interpreting the concept of "membership in a particular social group" as part of the definition of the Convention refugee situated within s.96 of the IRPA.[10] He observed that this was fundamentally about human rights and the IRPA imposed no requirements that RPD members have legal expertise in order to hold positions.[11] This was distinct from the conclusions arrived at by other justices of the Federal Court of Canada - see. e.g. Canada (Citizenship and Immigration) v B380; PM v Canada (Citizenship and Immigration); and SK v Canada (Citizenship and Immigration). It is also noteworthy that Justice Shore in Dufour v Canada (Citizenship and Immigration) applied a correctness standard with respect to other portions of the IRPA. 

A recent decision of the Federal Court of Appeal also suggests a correctness standard might be appropriate when dealing with human rights provisions of the IRPA. In Canada (Attorney General) v Johnstone,[12] the Court of Appeal was tasked with determining whether "family status" under the Canadian Human Rights Act [CHRA] incorporated parental obligations such as necessary and immutable childcare obligations that engaged a parent's legal responsibility for the child.[13] The Court concluded that the correctness standard was appropriate. It did so by following the SCC's decision in Mowat which indicated that where broad human rights principles were in play, a correctness standard may well apply.[14] It is useful to remember here that the CHRA is the Canadian Human Rights Tribunal's home statute. Thus, if legal interpretations of the Canadian Human Rights Tribunal with respect to broad human rights principles found within the CHRA are to be accorded no deference, surely it is legitimate to accord no deference to the RPD's legal interpretations of human rights provisions within its own home statute - the IRPA. 

The lack of comity amongst Federal Court justices on the standard of review in such cases may lead to some disparate results. Justice Harrington at the end of his decision in B472 certified the following question of general importance for the Federal Court of Appeal to consider: "Is review by this Court of the meaning of “membership in a particular social group” in section 96 of the Immigration and Refugee Protection Act as determined by a member of the Refugee Protection Division of the Immigration and Refugee Board on the correctness or reasonableness standard?"[15] Answering this question will likely help to resolve the current lack of comity and give parties a better degree of certainty as to what the appropriate standard of review will be.

Notes

1. Immigration and Refugee Protection Act, SC 2001, c 27.

2. Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190.

3. Ibid at para 50.

4. Ibid at paras 58-61.

5. Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61, [2011] 3 SCR 654; Smith v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 SCR 160.

6.  Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

7. Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 at para 42, 160 DLR (4th) 193.

8. Ibid at paras 46-50.  

9. Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 SCR 678.

10.  Canada (Citizenship and Immigration) v B472, 2013 FC 151.

11. Ibid.

12. Canada (Attorney General) v Johnstone, 2014 FCA 110.

13. Canadian Human Rights Act, RSC 1985, c H-6, s 3.

14. Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53, [2011] 3 SCR 471.

15. B472, supra note 10 at para 32. 

Welcome

Welcome to the blog space of the Migration Law Research Cluster (MLRC) located at the University of Manitoba’s Faculty of Law. Created in 2013, the MLRC is engaged in research on the intersections between law and migration, including the areas of immigration law and policy, refugee law and policy and migrant settlement and resettlement. The MLRC seeks to build knowledge and understanding in these areas and to foster interdisciplinary collaboration and community engagement.

The MLRC’s founding members are Gerald Heckman, Amar Khoday and Shauna Labman. Through this blog space, members will share, amongst other things, short commentaries or reflections on various matters connected to migration law. This may include posts on legislative and policy developments, judgments by courts and administrative decision-makers, as well as scholarly contributions of academics writing on issues of migration law. While rooted in Canada, our posts may also examine and explore developments taking place internationally and in other countries.