Canadian Immigration Blawg

Top Canadian Immigration News Stories for 2007

In the spirit of the end of years' ubiquitous top ten lists, I present my own (in no particular order) take on the top immigration stories for 2007:

1. The Death of Robert Dziekanski. Dziekanski, a Polish immigrant, who the RCMP tasered within 25 seconds of their arrival. Dziekansi never set foot alive outside the Vancouver International Airport.
2. The (non) deportation matters of:
   • Laibar Singh, a paralyzed Sikh and failed refugee claimant. Singhs' supporters staged a massive protest at the Vancouver International Airport, yet again preventing his removal from Canada;
   • Karlheinz Schreiber. The wily Schreiber has managed to delay his deportation to Germany to face serious criminal charges by a flurry of conflicting affidavits, law suits and a unusual appearance before Parliament. What remains to be seen is how much longer Schreiber can delay the seemingly inevitable;
   • Sukhvir Singh Khosa. Khosa and Bahadur Singh Bhalru were street racing when Khosa's vehicle struck and killed Irene Thorpe, and innocent pedestrian on Marine Drive in Vancouver. Both were convicted and Bhalru was eventually removed from Canada. Khosa continues to fight his removal and his appeal will now be heard by the Supreme Court of Canada;
   • Samuel Martin Luin, who entered Canada in 2002 at 18 and in the past 5 years has racked up 16 criminal convictions. In 2005, Luin raped and assaulted a 19 year old woman and sentenced to 40 months (reduced by 16 months for time served). While he was ordered deported, the government failed in applying in a timely fashion for a danger opinion, required for his removal. The Immigration Division released him from detention, with only reporting conditions in place. Perhaps not surprisingly, Luin failed to show and was (fortunately) arrested soon after due to tips from the public.
   • The Raza family of 8 which sought sanctuary in August 2006 and remain under the protection of a Winnipeg church to stymie removal to alleged (sectarian) difficulties in Pakistan;
   • Hutu war criminal Leon Mugesera, still successfully fighting deportation from Canada since 1995 - in fact 5 Rwandans subject to extradition requests are living freely in Canada;
   • Terrorist/hijaker Mahmoud Mohammad Issa Mohammad has stymied deportation for almost 2 decades; and
   • Lai Changxing - sought after by the Chinese government and accused of massive fraud. Changzing has been in Canada since 1999, and won another reprieve when his counsel, David Matas, managed to successfully impugn his 'PRRA' decision, arguing that the government failed to properly assess risk to Changxing upon return to China.
3. Foreign workers. Touted as a remedy to Canadas' (and Albertas' in particular) labour woes, thousands of 'low skilled' workers have entered Canada. What remains to be seen is whether they will return to their country of origin at the end of their period of authorized stay and whether government policy will make provision for them as they have with foreign live in caregivers (who can apply for permanent residency from within Canada - unlike 'low skill' foreign workers, who may never qualify under the federal skilled worker immigrant class).
4. Canadas' multiculturalism policy - now under threat from issues as diverse as Quebecs' struggle with 'reasonable accommodation' (sparked by Herouxville, a little town which set down a declaration of norms for immigrants) and the reaction of Canadians over the death of Aqsa Pervez at the hands of her immigrant father in Toronto. Canada only needs to look to the UK experience with multiculturalism (and read this excellent article by Christopher Hitchens, Londonstan Calling in Vanity Fair).
5. The ongoing Air India Inquiry - which continues to illustrate the perils of importing conflict along with immigrants.
6. The failed refugee claims of US Military Deserters. Jeremy Hinzman and Brandon Hughey, both opposed to serving in the 'illegal' US war in Iraq, sought and failed to obtain leave from the Supreme Court to hear their appeal of their failed refugee claims.
7. Security Certificate regime struck down by the Supreme Court - in an unanimous ruling, the top Court held that the system violated the Charter of Rights and Freedoms. The Court did give the government one year to rewrite the legislation. The certificates were challenged by counsel for Mohamed Harkat, Adil Charkaoui and Hassan Almrei. The (former) security certificate system allowed for the removal of non-citizens on the basis of secret evidence. New attempts to breathe life into the defunct legislation is meeting with resistance from Harkat, Charkaoui and Almrei.
8. Safe Third Country Agreement struck down. In a 'landmark' decision, Justice Phelan held that the US' policies and practices do not meet the pre-conditions necessary for Canada to designate it as a 'safe third country'. The agreement had been responsible for barring thousands of refugee applicants from applying for protection at the US-Canada border.
9. Omar Khadr - I had some concerns about putting Khadr on this 'immigrant news list'. While he is a Canadian (and not the subject of any immigration matters), one can easily say that he belongs to one of the most (in)famous immigrant families in Canada. The Canadian publics' response to his continued detention in Guantanamo has been one of indifference (and at one point there were calls to revoke citizenship/status). That aside, Khadr will forever be the poster boy of those advocating against a generous immigration policy -- fearful (perhaps not without cause) of radical/fundamentalist immigrants who will have cause to act as fifth columnists here in Canada.
10. The Canadian Charter of Rights and Freedoms. Marking its 25 anniversary in April 2007, the Charter has fundamentally changed immigration law and policy. From the 1985 Supreme Court decision in Singh (which provided for Charter protection to non-citizens in Canada) resulting in the creation of the Immigration and Refugee Board, to this years Supreme Court decision striking down the security certificate regime - the Charter is both a shield and a sword against the actions of the government in the arena of immigration law.

Bias in the Canadian Consulate in India?

Apparent comments by Brian Hudson, chief visa officer in India have upset a delegation of Canadian college and university leaders who visited India this month (Globe and Mail article):

"[Mr. Hudson] said he did not understand why the heck we were recruiting in the Punjab; the state of the Punjab has the highest crime and forgery rate anywhere; the highest human-trafficking statistics in the world, and that we should be recruiting in South India," Mr. Oppal alleged.

Immigration practitioners have long known of the difficulties in securing approvals for (Indian, particularly Punjabi) applicants.

Hmmm...I wonder if the alleged comments/complaint can be utilized in arguing instititional bias in any relevant Applications for Leave before the Federal Court...

Aqsa Parvez

A number of comments and conclusions have been drawn as a result of Aqsa Parvez' murder. Suffice to say, the vast majority condemning Muslims in general, and extending to discussions regarding the Muslim immigrant population and restricting immigration of Muslims to Canada. 

Just read this article in The Star, and find that it encapsulates my thoughts exactly.

Updated: The Deportation of Laibar Singh

Laibar Singh's sojourn in Canada has taken another twist. The Vancouver Sun reports that Singh's supporters may be backing off on their public pledges to support and care for him as long as he remains in Canada.

Singh's case can be juxtaposed with Piotr Mazur - Mazur was holidaying in Canada with his family when he got into a car accident and was partially paralyzed. Mazur was eventually granted permanent resident status after the then minister of CIC intervened in his case. It would be a legitimate question to ask if there is a double standard. However, as an immigration lawyer, I've come across numerous cases with similar facts but resulting in wildly disparate outcomes. The inconsistency of our immigration system is an unfortunate fact.

Singh had been ordered deported from Canada - despite years of efforts to regularize his status. He orginally arrived on a fake passport from India and claimed refugee status, which was refused by the IRB. Singh later suffered an aneurysm and is now paralyzed, requiring care. While he has won two stays of his planned deportation, Singh's tenure in Canada appears to be coming to an end.

Singh had earlier claimed sanctuary in a Sikh Gurudwara in Abbotsford BC. The concept of sanctuary appears to have been respected by the CBSA, but when Singh was ordered to report to Vancouver's International Airport last week for his removal, approximately 2 thousand (mostly Indo-Canadians) protested resulting in a stand-off.

Sentiments expressed by Mr. Singh’s supporters have ranged from those with genuine concerns for Mr. Singh’s well-being to the ludicrous – Mr. Herb Dhaliwal, former Liberal Cabinet Minister, idiotically compared the situation with the Komagata Maru, where 400 Indians were refused landing and forced back from BC in 1914.

It's true that while Mr. Singh (and all other illegal immigrants) undeniably desire to remain in Canada, what of the rule of law – the Canada Border Services Agency is statutorily bound to enforce removal and deportation orders? The law must be equally applied to all individuals.

Equally true is that Mr. Singh’s situation is truly difficult, however, his claim for protection has been considered and rejected in Canada. As opposed to many countries around the world, he has had many opportunities to test the actions of the federal government in one forum or another. A basic pillar of immigration law is that the state controls the entry and exit of foreign nationals (again, subject to law and principles of fairness). There is no prima facie 'right' to enter Canada (or remain here, in breach of the law).

In my humble opinion: Mr. Singh’s legal fees must be in the tens of thousands. His bond to appear for removal was set (and paid) at $50,000. His hospitalization and removal will cost Canadian tax-payers tens of thousands (and already have cost well over $100,000.00). Notably, the Indo-Canadian community has offered to pay for Mr. Singh’s future care (although there is no mechanism to enforce that pledge given that every resident in Canada has a right to access medical care). Mr. Singhs' supporters do have another option. If they are willing and able to pay for his care in Canada, they are certainly free to raise funds for his hospitalization and medical care in India, which has an extensive (for-profit) medical system, and is more than capable of addressing his present and future needs. Mr. Singh (and his supporters) claim that deportation to India would result in ‘certain death’ given his paralysis is nonsense. India’s “medical tourism” and private health care system likely matches the delivery of health care even here in Canada – at a far lower cost.

One of Mr. Singh's supporters - Harsha Walia of the group "No One is Illegal" has an answer to those that question why Labar's supporters can't maintain him in India:

The bottom line is that allowing Mr. Singh to remain in breach of the law sends a very bad signal – that the rule of law can be subverted – that those that can muster the support of the mob can determine which laws apply to them, and which laws do not. It is for this reason that Mr. Singh should be removed from Canada.

When asked why such donations could not be used to pay for private health care in India, Mr. Singh's home country, Ms. Walia said his case is a "simple issue of justice and humanity."

"If that argument were to be made that everyone here that's in need of care just raised money and [went] somewhere else, it defies a basic value of human dignity," she said. "His wish is that he feels safe here. He chooses to be with his community here."

With respect, Mr. Singh 'wish' to remain here cannot trump the operation of the law. If it's merely a 'choice' and not an absolute necessity, then there is no justification for Mr. Singh to remain (presumably, in a situation necessarily requiring a foreign national to remain in Canada - such as risk upon return, an argument could be made to stay a removal order).

Updated: Air India and the Importation of Conflict

Canadian immigration policy has to recognize that new immigrants often carry with them the hatreds, prejudices and conflicts plaguing their country of origin.

It must then seek to identify those likely to continue to adhere to such belief systems and likely to act on them in Canada.

Despite the current identification of Islamists as fifth columnists, we only need to look at recent history in Canada to realize that they hold no monopoly on such internal threats -- more than 20 years ago, Sikh fundamentalists used terror to establish their homeland, Khalistan, in India.

Canada -- then and now a major destination country for Sikhs -- became a theatre for that conflict when Sikh fundamentalists placed a bomb on an Air India flight, killing 329 (mostly Canadians) and were likely behind the murder of Tara Singh Hayer, a prominent Indo-Canadian editor in Surrey, B.C., who spoke out against violence in the Sikh separatist movement.

The Air India inquiry continues and now confirms that there was advance knowledge of the threat -- revealing a massive failure on the part of Canada's security apparatus to act on that knowledge to prevent the deaths of those innocents.

In addition to Ontario Lt.-Gov. James Bartleman's shocking revelation of receiving (and passing on to the RCMP) a specific threat prior to the fateful day, documents filed at the inquiry show that the Toronto police were called by Air India indicating a sabotage threat for a specific flight; a July 1984 RCMP memo dealt with bomb attacks on Air India flights; and the Indian High Commission warned against security threats to Air India flights. (Note - Bartleman's testimony has been sharply criticized by Pierre Lacompte who testified before the inquiry on Thursday, December 2007. Link here.)

More than two decades ago, CSIS was unable to obtain a warrant to intercept communications on Talwinder Singh Parmar for five months. Parmar was already considered by CSIS to be the "most radical and potentially dangerous Sikh in the country." Parmar toured Canada denouncing the Indian government and spewed his vitriolic opinions at will. Parmar was quoted as telling audiences at Sikh temples that it was time to "unite, fight and kill," and that "50,000 Hindus" should die in retaliation for an Indian army attack on the Golden Temple, the holiest Sikh shrine in India.

Surprisingly, even after the security failure and debacle with respect to Air India, even now CSIS still takes between three and six months to get approval to intercept communications in "national security cases."

The difficulties in bringing justice to those responsible have been well documented in the criminal courts of Canada -- courts that have provided only one conviction (Inderjit Singh Reyat) in connection with the bombing. CSIS has revealed that even now, they face difficulties in expeditiously intercepting communications that are a threat to national security.

Religious fundamentalists like Parmar in Canada, Abu Qatada in the United Kingdom and Sheik Omar Abdel-Rahman in the U.S., each presented a unique problem to their respective law enforcement authorities.

Qatada faces deportation to Jordan and Abdel-Rahman is in custody. Parmar was never prosecuted in Canada and died in a police shoot-out in India.

Undoubtedly, there will be others to take their places.

It's clear that preventing individuals who espouse violent beliefs from entering Canada is the best way to safeguard national security. Once here, monitoring of such individuals is vital to preventing another catastrophe such as the doomed Air India flight.

****

Please note the above article (minus the update in December 2007) was published in the Calgary Herald on May 10, 2007. Link here.

Safe Third Country (STC) Agreement Dealt Serious Blow

The concerns of refugee advocates, the refugee Bar and other stakeholders over the Safe Third Country Agreement appear to be shared and voiced by the Federal Court.

As an example of the differences in refugee policy between the US and Canada, consider that Colombian refugees have a less than 50% acceptance rate in the US vs. over 80% acceptance rate in Canada.

Mr. Justice Phelan of the Federal Court has found that the STC (agreed to by Canada and the US and responsible for a major drop in refugee claims in Canada) violates refugee rights and is contrary to the Charter of Rights.

Edward Corrigan writes in the The Canadian National Newspaper:

The Judge stated, "I would therefore conclude that the designation of the U.S. as a safe third country leads to a discriminatory result, in that it has a much more severe impact on persons who fall into the areas where the U.S. is not compliant with the Refugee Convention or CAT (Convention Against Torture), as well as discriminating and exposing such people to risk based solely on the method of arrival in Canada."

"For the reasons outlined in this judgment, the United States' policies and practices do not meet the conditions set down for authorizing Canada to enter into a Safe Third Country Agreement (STCA)," Justice Phelan stated.

"The U.S. does not meet the Refugee Convention requirements nor the Convention Against Torture prohibition (the Maher Arar case being one example.) Further, the STCA does not comply with the relevant provisions of the Charter.”

The court ruled that a one-year deadline to file refugee claims in the U.S. was inconsistent with the international conventions because it increased the risk claimants would be sent back to countries where they faced danger or torture.

Justice Phelan also noted that the U.S. definition of terrorist activities can include those who never had any intention of contributing to terrorism.

"It is difficult to imagine how the governor in council could have reasonably concluded that the U.S. complies with the Refugee Convention when the law allows the exclusion of claimants who involuntarily provided support to terrorist groups. The terrorist exclusions are extremely harsh and cast a wide net which will catch many who never posed a threat. In returning claimants to the U.S. under these circumstances, the weight of the evidence is that Canada is exposing refugees to a serious risk of refoulement (return to danger) and torture which is contrary to the applicable articles of the Refugee Convention and the Convention Against Torture."

In his ruling Justice Phelan said concerns over the American authorities' use of expedited removals and use of detention, combined with concerns over the U.S.'s rigid application of the one-year bar to refugee claims, the provisions governing security issues and terrorism based on a lower standard, all called into question whether the U.S. is safe for asylum seekers and met the requirements of the Safe Third Country Agreement.

The Canadian Government also ignored a section in the regulations that required the government to conduct reviews of the Agreement and to assess the conditions for refugee claimants in the United States. Justice Phelan noted that the minister has not established a review process as required under the law.

This ruling of the Federal Court will not immediately change the restrictions on the right of entry of refugee claimants coming to Canada from the United States. The Agreement will continue to apply until the issue is finally decided by the Federal Court. The parties have until January 14, 2008 to make final arguments.

Janet Dench, Karen Hamilton and Alex Neve have written an article espousing Canada's obligation towards refugees (Globe and Mail web exclusive) and discuss Justice Phelan's decision:

The fact is, there is extensive, compelling evidence that the U.S. is not a safe country for refugees. The uplifting ideal of America as a country ready to offer shelter to the world's "huddled masses" is contradicted by a very different reality. Our organizations and many others have documented systematic violations of the rights of refugees and refugee claimants in the U.S. for many years, even predating further restrictions enacted after 9/11.

Comments made by readers do not appear supportive of the authors' position on scrapping the STC agreement and (thereby) accepting more refugees.