Why sanctuary is necessary

posted on August 10, 2004 | in Category Canada's Immigration Policy | PermaLink

Original author: Mitchell Goldberg, freelancer Source: The Montreal Gazette URL: [link] (subscription required) Date: August 10, 2004 Ottawa broke promise on appeals. Churches step in to correct injustice because refugee system is arbitrary

Judy Sgro, minister of Citizenship and Immigration, was right about one thing in her recent call to churches to stop offering sanctuary: Refugees shouldn't be in sanctuary. She was wrong, however, in her diagnosis of the problem, which lies not with the churches that offer sanctuary, but with the flawed refugee-determination system that fails to protect some refugees. When refugees' lives are at risk because the government is not protecting them, some people of conscience feel a moral obligation to fill the gap by providing sanctuary.Churches offering sanctuary are responding to the individual human beings in front of them not because they want to take over the state role, but because they see the government flouting international human rights standards and betraying the will of Parliament. This is the effect of the government's decision to deny refused claimants an appeal to correct errors in refugee determination. An appeal on the merits has been identified by the Inter-American Commission on Human Rights as a necessary element of international protection. The UN High Commission for Refugees has also criticized Canada for not having an appeal. Parliament responded by passing the Immigration and Refugee Protection Act in 2001, which included a refugee appeal. But in 2002, the government implemented the law without the appeal. Worse, the government broke a promise made in May 2002 by then Immigration Minister Denis Coderre to implement the appeal within one year. This promise was made publicly at a conference of the Canadian Council for Refugees and repeated the following week in the House of Commons. Although the government failed to implement the appeal, it went ahead with another measure that reduced the number of decision-makers hearing a refugee claim from two to one. This was supposed to be a trade-off in exchange for introduction of the appeal. Instead, refugee claimants have the worst of all worlds. Their case is heard by just one member of the Immigration and Refugee Board. Except for a small percentage of cases that can be overturned on legal errors, that member's decision is final, even if it is the wrong decision. Yet, these members are political appointees, some with little or no experience or qualifications for making life-and-death decisions. The problem with the appointment process was implicitly recognized by Sgro, who recently announced reforms. In the meantime, however, members appointed under the old process continue to have sole authority to determine claimants' fates. The system disturbingly resembles a lottery: a person's chances of being recognized as a refugee can depend in large part on which member happens to hear their case. It is not surprising that some wrongly refused refugees have despaired of receiving justice from the government and turned to churches for protection. Among them is Amir-Houman Kazemian, an Iranian man who in June sought refuge in a church in Vancouver. Kazemian is terrified of being sent back to Iran, from which the Canadian government just recalled its ambassador to protest the killing of Montrealer Zahra Kazemi. What kind of justice do we have in Canada if someone who fears imprisonment and torture in Iran can be deported without a chance to appeal the decision against them? The government's rationale in 2002 for denying an appeal on the merits was that there were too many refugee claims waiting to be processed. Their willingness to sacrifice some refugees' lives simply because of the number of claimants is frankly shocking. In any case, the numbers have been going down since the government offered this rationale. The Immigration and Refugee Board, under pressure to reduce processing times, has been pushing claims faster and faster through its system. The backlog of cases to be heard has been significantly reduced. As well, based on statistics from the first six months of 2004, it appears that Canada will receive its lowest number of refugee claims in 10 years. Since their numbers argument has lost whatever credibility it ever had, the government has now turned to a new excuse for not applying the law. What is needed, we are told, is an overhaul of the whole refugee system, and the question of the appeal should be considered in this context. This seems to miss the obvious point that, just a few short years ago when the Immigration and Refugee Protection Act was being developed, we went through a long process of overhaul. The result was a refugee process with an appeal. Sgro has available to her a simple and effective solution to the problem highlighted by recourse to sanctuary: apply the law and implement the refugee appeal. If refused claimants have access to a mechanism to get wrong decisions corrected, and if Canadians know that decisions get a second look, we will surely see a dramatic reduction in the numbers of people in sanctuary. Mitchell Goldberg, a Montreal lawyer, is an executive member of the Canadian Council for Refugees