REFUGEE SERIES: Canada’s plan to confront human smuggling by following Australia’s lead worries refugee advocates

Published: November 17, 2012

The MV Sun Sea, which held 492 Tamil asylum-seekers when it arrived off the shores of British Columbia from Thailand in August 2010, is still docked at the Nanaimo Shipyard in Newcastle Island Passage. Krista Bryce/Nanaimo Daily News

KATIE DE ROSA
VICTORIA TIMES COLONIST

It took two migrant ships and 568 Tamil asylum seekers arriving in Victoria, B.C., to tip Canada’s refugee policy to the right.

Just hours after the arrival of the second ship, the MV Sun Sea, in August of 2010, Public Safety Minister Vic Toews stood in front of almost two dozen reporters in an auditorium at CFB Esquimalt and said the federal government “must ensure that our refugee system is not hijacked by criminals or terrorists.”

Canadian authorities had been tracking the Thai ship’s movements for months. Almost 500 men, women and children had been packed into the 60-metre, barely seaworthy cargo ship. They had spent 12 weeks crowded together, seasick and surviving on limited rations of food and water. One person died during the journey and was buried at sea.

Intercepted by two Canadian naval vessels, the ship was escorted to CFB Esquimalt. Canada Border Services Agency officials guided the 492 passengers off it, using black umbrellas to shield their faces from photographers. Toews raised the possibility that members of the Liberation Tigers of Tamil Eelam, or Tamil Tigers — considered a terrorist organization by Canada — could be on board and in charge of the human-smuggling mission.

He hinted at the tougher refugee reforms that would come, saying the government had to take action to ensure Canada’s generous refugee system would not be abused by human smugglers.

Two years later, the government has made good on that promise, passing a new refugee bill in June that is set to come into effect in December. It allows refugee seekers to be held in detention indefinitely, until their claims are processed or the immigration minister decides to release them.

Asylum seekers who come to Canada by boat will be detained in provincial jails, as was the case with the Tamils who arrived on the MV Sun Sea, and with the 76 people on the Ocean Lady the year before.

Seeking a model for its new bill, the Conservatives looked to Canada’s Commonwealth sister, Australia, which has had a mandatory detention policy for the last 20 years and constantly faces a crush of migrant ships from Southeast Asia. The problem, say some experts, is that the system in that country has been an utter failure.

Australia has spent billions of taxpayer dollars keeping refugees locked up in remote detention centres, which critics argue has tarnished the country’s international reputation and caused physical and emotional harm to genuine refugees seeking a better life in a democratic country.

Immigration Minister Jason Kenney says Canada’s new measures will provide a strong deterrent to anyone thinking of paying a human smuggler to cross the Pacific. Conservatives also say locking up asylum seekers will prevent terrorists and criminals from disappearing into Canadian towns and cities.

Critics call the plan a waste of taxpayer money that won’t work. They argue old laws were already effective in identifying — and locking up — refugees deemed to be security risks.

They also say the Australian example has shown mandatory detention has not served as a deterrent.

The Canadian Council for Refugees argues the Conservatives’ new law creates a two-tier system that treats would-be refugees who arrive by boat worse than the thousands of asylum seekers a year who arrive by air, a violation of the Refugee Convention.

GEOGRAPHY SETS THEM APART

While Australia and Canada share many similarities, geography sets them apart when it comes to attracting ships full of would-be migrants.

Canada faced two boat arrivals in two years – a total of 568 people, including the 76 Tamil men who were aboard the Ocean Lady in October 2009. Australia, which is just 360 kilometres south of Indonesia, saw 1,798 people arrive by boat in July of this year alone.

Canada deals with 20,000 to 30,000 refugee claimants a year, most of whom arrive by air. The majority are government-assisted refugees, or people who have been accepted as refugees by the United Nations High Commissioner for Refugees and are waiting for resettlement. Asylum seekers are people who make a refugee claim when they arrive in the country, often unannounced by air, or more infrequently in Canada, by boat. Last year, more than 6,600 people made refugee claims in Canadian airports.

Canada remains one of the most generous nations in the world toward refugees. The federal government is increasing the total number of refugee resettlements each year by 20 per cent, so that by 2013, Canada will resettle up to 14,500 refugees and people in vulnerable situations, according to the Department of Citizenship and Immigration.

But NDP immigration critic Jinny Sims said the Conservative government’s recent changes represent a major hardening in Canada’s attitude.

“It transforms very, very dramatically the way we treat refugees when they first arrive in our country,” Sims said. “It actually transforms the image people have of Canada when they see the kind of laws we’re passing that seem to be very anti-refugee.”

On a September 2010 trip to Australia, Immigration Minister Jason Kenney met a group of refugee advocates from non-governmental agencies to talk about the effects of mandatory detention. Paul Power, CEO of the Refugee Council of Australia, and Paris Aristotle, head of Foundation House for Survivors of Torture and Trauma, were at that meeting.

“We certainly talked about the psychological impact, the self-harm, the significant mental-health problems of people while they’re in detention, the fact of the slow recovery rates from that harm after those people are released from detention. We talked about the effect on children in detention,” Power said.

The mandatory detention system is also expensive, costing the Australian government almost $800 million a year. But the refugee advocates didn’t sway the Canadian government.

Passed June 28, Bill C-31 will require mandatory detention for so-called “irregular arrivals,” which will include any boat arrivals or cases where human smuggling is suspected. The detention will be reviewed after the first 14 days, then every six months. Previously, immigration detention was reviewed every 30 days.

Asylum seekers will be held until the Immigration and Refugee Board makes a decision on their claims or orders their release. People could be held in detention indefinitely as their claims wind through the system.

Catherine Dauvergne, a University of British Columbia law professor and expert in Canadian and Australian migration law, says the new bill gives too much discretion to the immigration minister to designate a group as an irregular arrival, and to decide the length of someone’s detention.

“It really adds a political element to detention, which is one of the most worrying things about this scheme,” Dauvergne said.

It costs $239 a day to keep someone in immigration detention, or more than $87,000 a year. It cost the Canada Border Services Agency $24 million to intercept, process and detain the asylum seekers from the MV Sun Sea, though that also included anti-human smuggling efforts by CBSA officers overseas. The costs to the Immigration and Refugee Board, largely for detention reviews, was $900,000.

Bill C-31 takes away the right of “irregular arrivals” to appeal the refugee board’s decision on a claim. They can request a federal court review, but 99 per cent of those requests are turned down.

The government has also scaled back health benefits for asylum seekers who arrive by boat and people who come from “designated countries” that the immigration minister decides are unlikely to produce refugees.

The bill implements tough measures for refugees who arrive by boat, including a five-year ban on family reunification, permanent resident status and travel. Their claims can also be reassessed within five years and their refugee status could be revoked if the minister deems it safe for them to return to their country.

Canada’s Bill C-31 also includes a mandatory minimum sentence for people convicted of human smuggling, which Australia has also done away with because it found it was locking up under-age Indonesian fishermen who had been paid a small amount to steer the boat.

“I was surprised when I saw the nature of the legislation that Jason Kenney was proposing after his meeting with us,” Power said. “He seemed to understand what our concerns were about the way in which asylum seekers have been treated in Australia and about Australia’s mandatory detention policy. But from the legislation that was developed, he took not one bit of notice of the concerns of the Australian community sector.”

“The belief that mandatory detention can fix this for any country is a bit of a siren song,” Aristotle said. “It’s good politics but not very good policy.”

In an interview with the Times Colonist, Kenney said the detention provisions are not meant to punish refugees, but are aimed at ensuring that people can be kept in detention while the necessary security checks are done.

“The enhanced detention provisions in the bill reflect the very concrete fact that when hundreds of illegal migrants show up at once, having destroyed their documents, that it is practically impossible for our system to readily identify them and determine their admissibility into Canada,” Kenney said.

He said the previous system meant the detention had to be constantly reviewed by the Immigration and Refugee Board — after 48 hours, then after a week and every month thereafter, which tied up resources and prevented legitimate claims from being processed faster.

Kenney promised the new system would be faster for “bona-fine refugees,” who would receive a hearing in 30 to 60 days.

But Douglas Cannon, a Vancouver refugee lawyer, said Canada’s old laws, the ones on the books before Bill C-31, were effective in identifying and detaining people deemed to be a security risk.

He said to treat every asylum seeker on the boat as a security risk was “reckless and foolish.”

Before the arrival of the MV Sun Sea, Canada detained asylum seekers only while health, security and identity checks were done, then released them on bond or with requirements to report regularly to immigration officials.

While the Tamil asylum seekers from the MV Sun Sea or Ocean Lady were held in custody longer than asylum seekers who arrive by plane, most were released into the community after an average of four months. None has violated the conditions of release, according to the Canada Border Services Agency.

WHY FOLLOW AUSTRALIA?

That has refugee experts asking why Canada is taking cues from Australia’s mandatory detention policy.

Sarah Hanson-Young, a senator for the Australian Green Party who was part of a joint parliamentary committee tasked with investigating that country’s detention system, says Australia has not set an example that any country would want to follow.

“Mandatory detention has led to significant mental-health problems of refugees, people who are already suffering torture, trauma, the post traumatic stress of the brutality that they fled, war, persecution,” said Hanson-Young, after speaking outside Sydney Town Hall at a rally organized by the Refugee Action Coalition. “I’d say it’s a big failure.”

A sign in support of Ranjini Perinparasa, a mother of two who is detained indefinitely in Villawood detention centre because the Australian government’s security authority, ASIO, determined she was a security risk. Submitted photo

The parliamentary committee visited detention centres across Australia, heard from more than 100 detainees and listened to testimony from a host of mental-health professionals, human rights and refugee advocates and trauma counsellors.

Its report, released in March, portrayed a system that spits people out much more damaged than when they came in. In many cases, the hopelessness, waiting and uncertainly is so unbearable, detainees have resorted to self-harm and suicide attempts.

The parliamentary committee’s key recommendation was a maximum 90 days’ detention for processing and health and identity checks. After that, it said, individuals should be released into the community, with a requirement to report back regularly while they await the outcome of their refugee claims.

Those recommendations have been largely ignored. Scrambling to control a spike in migrant boats in the last two years that has resulted in hundreds of deaths at sea, Australian Prime Minister Julia Gillard announced a return to “offshore” processing for boat arrivals.

Jo Szwarc, manager of policy and research at Foundation House and a colleague of Aristotle’s, says the return to the offshore processing scheme is evidence the mandatory detention system, which is supposed to act as a deterrent, has failed.

“I would urge Canadians and the Canadian government to look very closely at the Australian experience and learn what is bad about it. It’s not a model one would want to follow if you were mindful of all evidence,” Szwarc said.
“We’ve seen that it’s expensive and damaging to lock people up for extended periods. So really the big question is why would you do it?”

FACTS ABOUT REFUGEES

Definition of a refugee:
— Refugees are people within or outside Canada who fear persecution if they go back to their home country.
— The federal government normally relies on the United Nations High Commissioner for Refugees (UNHCR), other referral organizations and private sponsorship groups to find and refer refugees to be resettled in Canada.
— Canadian citizens and permanent residents can also sponsor refugees from abroad who qualify to come to Canada.
— In 2011, of the 34,227 refugee claims processed, about 38 per cent were accepted, 46 per cent were rejected, five per cent were abandoned by the applicant and 10 per cent were withdrawn because the person was excluded from making a refugee claim.
(Source: Citizenship and Immigration Canada)

MV Sun Sea and Ocean Lady – Status of the refugee claims:
— The MV Sun Sea, which journeyed to the B.C. coast in 2010, had 492 passengers aboard: 380 men, 63 women and 49 children.
— As of Oct. 30, 28 people have been accepted as refugees, 43 people have had their claims rejected and 23 claims have been withdrawn.
— 40 people were subject to admissibility hearings before applying for refugee status, which occurs when the CBSA makes allegations that the individual is a security risk.
— Of those, 25 people were issued deportation orders following negative admissibility hearings at the immigration and refugee board, 11 because of alleged membership in a terrorist group, and the rest for acting as crew members and therefore being complicit in human smuggling.
— 18 people were found by a judge to be admissible to make refugee claims, but the immigration minister appealed 10 of those cases. In three cases, the judge’s original decision was overturned, resulting in deportation orders.
— The Ocean Lady, which was intercepted in 2009, had 76 men on board, including one minor. One person has been given a deportation order. Nine people have been accepted as refugees and 14 people have had their claims rejected. One claim has been withdrawn.

Related articles:
— Canada to admit 1,000 fewer newcomers on humanitarian grounds (o.canada.com)
— Most Sri Lankan Tamil migrants from MV Sun Sea await decision on refugee claims (o.canada.com)
— It’s time to challenge Australian refugee policy (thevine.com.au)
— Inside an Adelaide detention centre: misery on quiet suburban street (crikey.com.au)
— Nauru detention a ‘breach’ of rights (theage.com.au)

The Times Colonist’s Katie DeRosa travelled throughout Australia and Thailand to learn more about Australia’s mandatory-detention policy and talk to refugees, in an effort to understand why they would pay a human smuggler and risk their lives getting on a boat.
She travelled to Christmas Island, a remote Australian territory in the Indian Ocean, 360 kilometres south of Indonesia, where hundreds of people arrive a month and where all refugees are initially held in one of two detention centres. She also visited Northam in Western Australia, where the government has just spent $125 million on a new detention centre;  the Adelaide Hills in South Australia, where refugee families are held in a suburb-like alternative detention centre called Inverbrackie; and Dandenong just outside Melbourne, where a thriving Afghan refugee community has revitalized a previously dead area. And finally, she travelled to Sydney, where an Afghan Hazara refugee has used art and the support of an Australian family to thrive in community detention.
In Bangkok, DeRosa talked to refugee families who are stuck in limbo waiting to be resettled. They live in constant fear of being rounded up by the Thai police, which refugee advocates say drives them to pay human smugglers for a spot on a boat.
DeRosa’s project is the first to be funded by the new James Travers Fellowship, created in memory of the former editor of the Ottawa Citizen and Toronto Star.

The series continues Sunday.

Today: Canada introduces mandatory detention
Sunday: A visit to Christmas Island, the first stop for most boat refugees
Tuesday: Yongah Hill Detention Centre is refugees’ first experience of the Australian mainland
Wednesday: A young refugee is released into the community and finds his way through art
Thursday: Inverbrackie is a detention centre that looks like a suburban community
Friday: Refugees bring life back to a struggling city
Saturday: Refugees in Bangkok wait and hope for a new life


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