INTRODUCTION
Whenever people arrive in Canada and claim to be refugees, a heated—and frequently partisan—political debate is reignited. Most—if not all—Canadians want to extend a warm welcome to people who are genuinely fleeing political persecution in their home countries. For this reason, Canada adheres to the United Nations Convention Relating to the Status of Refugees (hereafter Refugee Convention) and has done so since 1969.
The Refugee Convention defines “refugee” as a person who “… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”
While wanting to assist genuine refugees and not wanting to send someone back to a country where he or she might be tortured or murdered, Canadians also do not want to see their immigration laws disregarded and abused by those whose tales of persecution are untrue or by those who would abuse Canadian generosity. Economic migrants may have a legitimate desire to move to Canada but they need to apply through legal immigration channels, along with hundreds of thousands of other people, and wait their turn in the process. When economic migrants succeed in obtaining permanent residency in Canada by abusing the refugee-claims system, it undermines respect for the rule of law, reduces public support for assisting real refugees and is grossly unfair to the millions of Canadians who immigrated here while respecting and complying with the law.
Under the Refugee Convention, Canada’s obligations are limited to not returning a refugee to the place where she or he faces persecution. The Refugee Convention does not require Canada to provide a lengthy and exhaustive appeals process to every person claiming refugee status nor does the Refugee Convention require Canada to house, clothe, feed and care for tens of thousands of refugee claimants who continue to reside in Canada while applying for refugee status and exhausting all of their appeals. The Refugee Convention does not prevent Canada from quickly deporting non-citizens whose refugee claims clearly lack merit. The Refugee Convention does not prevent Canada from granting temporary protection status to refugees and returning them to their country of origin when circumstances there have changed. The Refugee Convention provides rights to those who are found to be refugees, and it does not provide rights to refugee claimants. Under the Refugee Convention, Contracting States like Canada have full discretion to set up their own systems and procedures for determining which refugee claims are valid and which are not.
It is difficult—but not impossible—to develop public policies that address the goals of helping real refugees while also deterring those who would make fraudulent claims.
Groups such as the Canadian Council for Refugees, the Canadian Council of Churches, and Amnesty International have successfully advocated for a lenient approach to all refugee claimants, the majority of whom are not bona fide refugees. The concerted and organized advocacy efforts of these organizations, before Parliament and the courts, have resulted in public policies that hurt authentic refugees.
The refugee lobby1 frequently claims that its demands for a permissive approach to refugee claimants must be met in order for Canada to comply with legal obligations imposed by the Canadian Charter of Rights and Freedoms and by international agreements like the Refugee Convention. For example, when the federal government introduced reforms to the refugee-claim processing system with Bill C-49 (Preventing Human Smugglers from Abusing Canada’s Immigration System Act) in the fall of 2010, the president of the Canadian Council for Refugees stated in a news release: “Measures keeping some refugees longer in detention, denying them family reunification and restricting their freedom of movement are likely in violation of the Canadian Charter and of international human rights obligations.”
This paper will discuss the Refugee Convention and Supreme Court of Canada jurisprudence pertaining to the rights of refugees and show that the federal government can, in fact, implement sensible reforms to Canada’s immigration and refugee policies while also complying with the Charter and with the Refugee Convention.
