Selective Concern: An Overview of Refugee Law in Canada
James C. Hathaway*
Until the middle of this century, Canada had
no law expressly directed to the admission of
refugees: displaced and persecuted persons
were subject to the general immigration
scheme, which was designed primarily to
promote Canada’s domestic economic inter-
ests. In this article, the author traces the ev-
olution of Canada’s refugee law, and
evaluates it in the context of Canada’s inter-
national obligations and espoused humani-
tarian concerns. The author argues that
refugee law in Canada has evolved as an out-
growth of the traditional policy of promoting
immigration in the interest of domestic eco-
nomic development. It is suggested that
while Canada’s commitment to its ideologi-
cal allies and to the advancement of inter-
national human rights law have attenuated
the narrowness of this focus on self-interest,
domestic advantage remains the cornerstone
of Canadian refugee policy.
Jusqu’au milieu du si~cle, le Canada ne
comptait aucune legislation consacre ex-
press~ment a l’admission des r~fugi~s: les
personnes d~plac~es et pers6cut6es 6taient su-
jettes au processus g6n~ral d’admission qui
6tait alors principalement destin6 a promou-
voir les intr~ts 6conomiques du pays. L’au-
teur d~crit l’6volution du droit des r6fugi~s
au Canada, puis 6value ce droit en rapport
avec les obligations internationales et les pr6-
occupations humanitaires du Canada. l’au-
teur avance que l’volution du droit des
r~fugi~s au Canada est une extension de la
politique traditionnelle de promotion do
l’immigration dans l’int~rt du d6veloppe-
ment 6conomique de Ia nation. Bien que ‘en-
gagement du Canada envers ses alli6s
id~ologiques et l’avancement des droits de In
personne ait att~nu6 la tendance A limiter le
droit des rfugi~s au service de ses int6rts
lgitimes, l’auteur croit que les avantages 6co-
nomiques sont encore A la base du droit des
r~fugi~s au Canada.
Author’s Note
Since this article went to press, the legislative reform of the inland refugee determination
system (discussed at part 6.0) has been completed. As a result of Senate intervention, the
amendments to the Immigration Act, 1976 discussed in this article were attenuated in several
important respects. First, the ability of the Minister to interdict ships at sea was substantively
constrained and made subject to a “sunset clause”, as a result of which this power will end
six months after the new determination system is in place. Second, the exclusion of refugee
claimants who arrive from “safe countries” now applies only to persons who would either “be
allowed to return to that country” or who “have the right to have the merits of their claims
determined in that country.” The authority of Cabinet to prescribe the list of countries deemed
safe was retained, although the relevant standard of reference was explicitly stated to be the
record of the state in the protection of refugees against refoulement. Finally, evidence of a good
human rights record in the claimant’s country of origin and of the negative disposition of claims
by other persons from the claimant’s country of origin are no longer dispositive of an application
for refugee status, but are now factors to be considered in addition to any evidence adduced
at the hearing, including the testimony of the refugee claimant.
The relevant portion of part 6.0 of this article will be discussed in a note to be published
in volume 34 of the McGill Law Journal. It will provide readers with details of these changes,
as well as pertinent references to the newly re-numbered sections of the Immigration Act, 1976.
*Associate Professor of Law, Osgoode Hall Law School of York University, Toronto. This
analysis is based on the law as of August 1987. Submitted in partial fulfilment of the require-
ments for the degree of Doctor of the Science of Law in the Faculty of Law, Columbia University.
1988]
REFUGEE LAW IN CANADA
Synopsis
A General Overview of Canadian Refugee Policy
I.
II. The Evolution of a Domestic Legislative Framework Governing Refuge
and Asylum in Canada
III. Government Sponsorship of Refugee Resettlement
A. The Admission of Convention Refugees from Abroad
B. The Admission of Neo-Refugees from Abroad
1.
2.
3.
4.
The Self-Exiled Persons Designated Class
The Indochinese Designated Class
The Political Prisoners and Oppressed Persons Designated
Class
Critique of the Designated Class Sponsorship Program
Special Measures Programs
IV. Private Sponsorship of Refugee Resettlement
V.
VI. The Inland Refugee Status Determination System
VII. The Substantive Application of the Refugee Definition
A. The Requisite Gravity of Harm
B. An Individualized Fear of Persecution
C. Persecution or Prosecution?
D. Economic Proscription
VIII. Conclusions
I. A General Overview of Canadian Refugee Policy
The law governing refugee status and asylum in Canada derives from
an uneasy and tenuous compromise among three factors. First, Canadian
refugee law is firmly rooted in traditional immigration policy designed to
promote domestic economic objectives. Second, Canada’s refugee law dem-
onstrates a lesser, but still important, concern for the maintenance of stra-
tegic and ideological alliances. Third, Canadian refugee law is premised on
McGILL LAW JOURNAL
[Vol. 33
a commitment to advancing the cause of international human rights through
the work of the United Nations.
The result is a refugee law that is highly selective, and which does not
purport to provide assistance to refugees on the basis of need alone. Do-
mestic economic considerations are key, and obligations to political and
strategic allies are of influence. Canada has taken the view that its tempering
of internationalist concern for refugees with a healthy injection of political
and economic realism has been the critical link in maintaining public sup-
port for large scale refugee resettlement, and has thus served the interests
of both Canada and the refugees themselves.’ Indeed, it is undeniable that
Canada has consistently admitted significant numbers of refugees, 2 and has
routinely extended the right of permanent residence to them.3 It remains,
however, that this explicit compromise of objectives has given rise to a
refugee policy that is an integral part of Canada’s carefully controlled im-
migration scheme.
‘The Honourable Robert Andras, former Minister of Manpower and Immigration, described
his intentions in introducing new legislation to govern refugee admissions in 1976 as follows:
I want to start developing a new policy, new legislation, by trying to define the
objectives of immigration in the national self-interest of Canada. And I don’t accept
that self-interest is necessarily selfish, nor necessarily so cold a concept as to exclude
compassion, but it is basic….
It is the willingness of communities to receive people and help them in tangible
and intangible ways; to absorb the financial costs of a refugee movement –
you
can’t just ignore it –
to provide the job opportunities, the education, the housing,
the social services, the social attitudes, all this kind of thing.. ..Governments can
only legally –
go as far and as
fast as the people of the country are going to go along … :
and sometimes perhaps they should do more –
R. Andras, “An Historical Sketch of Canadian Immigration and Refugee Policy” in H. Adelman,
ed., The Indochinese Refugee Movement: The Canadian Experience (Toronto: Operation Life-
line, 1980) 1 at 7-9.
2During the six year period from 1980 to 1985 inclusive, Canada admitted 117,858 refugees
(an average of 19,643 refugees per annum). This figure represents just more than 18% of total
immigration to Canada during that period: Employment and Immigration Canada, Refugee
Perspectives: 1986-1987 (Ottawa: Employment and Immigration Canada, 1986) (advance ver-
sion) [hereinafter Refugee Perspectives: 1986-1987] at 59.
3″We have always felt that with all our immigration movement[s], including refugees or
oppressed minorities… immigrants would come to Canada to become Canadian citizens, not
to use Canada as a temporary haven from whence they could go to correct the wrongs or take
over the power again in their own countries.” Andras, supra, note 1 at 8. See also R. Girard,
Speaking Notes for an Address (Conference on “Refuge or Asylum – A Choice for Canada”
at York University, 1986) [unpublished]:
The structure of the [Immigration] Act reveals the policy. The rules of admission
distinguish only two classes of people –
immigrants and visitors. Asylum seekers
are not temporary entrants with defined intentions; hence they are considered
immigrants.
1988]
REFUGEE LAW IN CANADA
The rationale for this immigration-based refugee law is in large part
rooted in history. While refugee law did not evolve as a subject of specific
concern in Canada until after the Second World War, Canada has a long
tradition of admitting immigrants in search of resettlement. Unlike many
older nations with established population bases, Canada needed to promote
immigration as a means of filling the spaces of a large and developing coun-
try, and of securing the energy and talent requisite to the harnessing of its
rich natural resources. 4 Motivated and skilled immigrants, whether refugees
or economic migrants, were welcomed and afforded a full array of rights
and benefits, including access to Canadian citizenship. What mattered was
not the motive for immigration, but rather the immigrant’s potential to
contribute to the economic development of Canada. 5
There were undoubtedly refugees among the early immigrants to Ca-
nada. Canada admitted the United Empire Loyalists displaced by the Amer-
ican Revolution, 6 Black slaves in search of liberation from the
institutionalized oppression of the United States, 7 and the Mennonites and
Doukhobors who had been denied religious freedom in Europe.8 The fact
that they may have been refugees was, however, of no significant concern
to Canadian policy makers. They were allowed to immigrate to Canada,
4L. Axworthy, “Notes for an Address to the National Symposium on Refugee Determination”
(Toronto, 20 February 1982) [unpublished] at 3.
5″Primarily concerned with the suitability of newcomers for agricultural settlement, the
Canadian government seldom interested itself in the causes behind the decisions to emigrate.
Thousands of those who chose Canada prior to 1914 were political and religious refugees. As
Canadian authorities saw no need to categorize immigrants on the basis of motivation for
emigrating, no records exist on the number of refugees admitted into Canada”: G. Dirks,
Canada’s Refugee Policy: Indifference or Opportunism? (Montreal: McGill-Queens University
Press, 1977) at 24-25.
6It may be argued that the United Empire Loyalists were economic migrants rather than
refugees:
Since they left by choice rather than by compulsion, they cannot properly be called
refugees. Many of these Loyalists who had been office holders in the former Amer-
ican colonies or agents of British firms decided that their interest remained tied to
Britain.
Ibid. at 16.
7″The causes giving rise to the flight of American blacks involved more than just the wish
to escape the perpetual condition of slavery. While slavery may have been the dominant issue
for those initially seeking sanctuary in the northern states, the property regulations and the
general discriminatory attitudes the blacks encountered once in the North tended to be im-
portant additional reasons to cause a reassessment of life anywhere in the United States.” Ibid.
at 22.
8″It can be said then that the two major group settlements [of Mennonites and Doukhobors]
in [W]estern Canada between Confederation and the beginning of the twentieth century con-
tained people who had fled their homelands for reasons of persecution. Canada accepted these
thousands primarily because the land had to be settled and made productive. Humanitarianism
must be thought of as playing a secondary role.” Ibid. at 33-34.
REVUE DE DROIT DE McGILL
[Vol. 33
and were granted the privileges and responsibilities of other Canadians,
because they were judged able to establish and provide for themselves, thus
contributing to the ongoing process of nation building.
Until the middle of the twentieth century, Canada really had no law or
policy specifically oriented to the admission of refugees qua refugees. Rather,
refugees were admitted as part of the general immigration scheme, which
was designed to promote domestic economic interests. This historical view
of refugee law as largely indistinct from broadly conceived immigration
concerns has conditioned much of the modern legal evolution in the field
of Canadian refugee protection.
The second major influence on the character of refugee law in Canada
stems from Canada’s desire to live up to its obligations as a member of the
post-World War II Western alliance. The human displacement caused by
the Second World War, and the resultant international pressure to facilitate
migration, forced Canada to confront the refugee phenomenon explicitly,
at least to some degree. 9 The government, however, maintained its focus
on domestic economic interests by specifically seeking out the most “adapt-
able” European refugees from among those in need of resettlement. 10 The
Canadian response to the European refugee crisis included, inter alia, the
Sponsored Labour Movement, pursuant to which Canada assisted highly
skilled workers in the refugee population to immigrate;II the Close Relatives
Scheme, which allowed Canadians to bring in family members from among
9″In the immediate aftermath of World War II, the Atlantic community’s efforts to restore
some semblance of order, prosperity, and political freedom to war-tom Europe in the shadow
of a perceived expansionist threat from Stalinist Russia included the enormous challenge of
repatriating or resettling approximately 60 million displaced people….
[F]or the first time, immigration policy, tied as it was to issues of security and the rebuilding
of Europe, became highly politicized within the governmental bureaucracy.” D. Dewitt & J.
Kirkton, Canada as a Principal Power (Toronto: John Smiley & Sons, 1983) at 245-46.
‘O”[T]he policy that gradually allowed the arrival of displaced persons remained rooted in
the traditional criteria of economic absorptive capacity and concern over homogeneity of
population characteristics.” Ibid. at 246.
1″[B]y December 1946 the cabinet committee on immigration was discussing the merits of
importing displaced persons as workers to fill vacancies in priority sectors of the labour
market.. ..Procedures were kept simple. Logging, lumbering and mining firms that would guar-
antee an individual a job under established terms could apply to the government for a portion
of a total number of workers allocated for that industry. Once prospective employers signed
contracts with the government guaranteeing to abide by predetermined wage, housing and
other basic conditions, selection teams made up of industry and government representatives
were dispatched to Europe to select workers with appropriate skills”: I. Abella & H. Troper,
None Is Too Many: Canada and the Jews of Europe, 1933-1948 (Toronto: Lester & Orpen
Dennys, 1982) at 247-48.
1988]
REFUGEE LAW IN CANADA
the displaced population of Europe;’ 2 and the admission to Canada of or-
phaned children under the sponsorship of domestic ethnic and religious
groups.’ 3 All these refugees were capable of ready assimilation in Canada,
and could reasonably be expected to make few demands on national re-
sources. In stark contrast, Canada refused to admit any of the “hard core”
European refugee population, including thousands of persons whose age,
illness, or handicap made them undesirable immigrants.’ 4 The government
erected a constitutional and regulatory barrier which effectively ensured that
only productive healthy refugees were allowed to come to Canada. 15
Between 1956 and 1972, Canada enacted other situation-specific refugee
programs that resulted in the admission of more than 37,000 Hungarians,
nearly 11,000 Czechs, and over 7,000 Ugandan Asians. The first two groups
fled to the West from Communist regimes: the Hungarians in the wake of
the unsuccessful uprising and subsequent Soviet invasion,1 6 and the Czechs
from the Warsaw Pact forces’ occupation of their country. 17 In both situa-
tions, Canada felt an obligation to assist individuals in flight from regimes
to which it was ideologically opposed, as well as to relieve the burden of
other Western nations forced to serve as states of first asylum. In the case
of the Ugandan Asians, Canada’s preparedness to act was in large part a
response to the urgent needs of its mother country, the United Kingdom,
12″The Canadian government’s announcement ofNovember 1946, which informed the public
that applications would be received from close relatives of European refugees, fulfilled one of
the basic objectives of ethnic associations and transportation companies. In excess of thirty
thousand applications reached the Immigration Branch by mid-1947….” Dirks, supra, note
5 at 158.
13″After some discussion between Immigration authorities and the Canadian Jewish Con-
gress, the minister responsible for immigration gave the plan to bring one thousand Jewish
orphans to Canada approval in principle [in 1947] …. As was expected, the Canadian Jewish
community pledged to guarantee all costs of the scheme, to appoint and send child-care workers
to Europe to coordinate the European phase of the project with Canadian Immigration per-
sonnel and to manage the placement of the children in Canada.” Abella & Trooper, supra, note
11 at 271-72.
14″[T]he Department of Citizenship and Immigration would only consider the applications
of those [hard core] refugees who could claim sponsorship by close relatives or charitable
organizations in Canada. The department was entirely unprepared to endorse any movement
of refugees which would require the waiving or extension of prevailing immigration regula-
tions.” Dirks, supra, note 5 at 175.
15″The Canadian government, although sympathetic to the plight of the ‘hard core’ refugees,
insisted that the federal system with its division of powers on matters of health and welfare
prevented the easy entry of these people.” Ibid. at 172.
16″The international context seemed to place Canada, along with its allies, in a position of
responsibility to offer assistance to those who suffered at the hands of Communist repression.”
Dewitt & Kirkton, supra, note 9 at 251.
17″[I]mplementation of the program invoked little comment…. [T]he crisis evoked a sym-
pathetic chord throughout Canada, a result of both the 1956 Hungarian episode and anti-Soviet
feeling.” Ibid. at 254.
McGILL LAW JOURNAL
[Vol. 33
which would otherwise have been obliged to accept responsibility for all
British citizens of Asian origin resident in Uganda after President Amin’s
expulsion order.18
These several refugee movements subsequent to World War II marked
the beginning of a Canadian refugee policy, in that they were demonstrative
of an evolving willingness on the part of the government to respond directly
to refugee flows. This new approach was carefully confined, however, by a
very narrow strategic orientation: refugees were seen as the proper benefi-
ciaries of special concern only insofar as their admission was consonant
with more general political objectives. Too, all of these programs were of
limited duration and scope, and as such did not signal a general openness
to refugee resettlement. Most important, none of these refugee movements
was inconsistent with the underlying economic determinants of Canadian
immigration policy, as the majority of the refugees were educated and skilled,
and were thus poised to make a positive contribution to Canadian economic
prosperity.19
The third major influence on Canadian refugee policy has been Canada’s
desire to assume the role of an internationalist middle power, and specifically
its determination to play a leadership role in the international human rights
community.20 The issue of accession to the 1951 United Nations Convention
on the Status of Refugees was problematic for Canada, in that the Con-
vention’s prohibition on the refoulement of refugees was seen to afford a de
facto right to protection to those refugees able to reach Canadian territory.
The obligation to shelter refugees was perceived to be inconsistent with the
jealously guarded right to regulate the admission of persons to Canada based
on strictly domestic priorities. 21 Ultimately, however, Canada’s internation-
18″In August 1972, President Amin of Uganda announced that he was asking Britain to take
responsibility for all United Kingdom citizens of Asian origin resident in Uganda, ‘because
they are sabotaging the economy.’ A time limit of three months was set for their departure….”
G. Goodwin-Gill, International Law and the Movement of Persons Between States (Oxford:
Clarendon Press, 1978) at 212-13.
immigration criteria anyway.. …”: Dewitt & Kirkton, supra, note 9 at 255.
19For example, the Ugandan Asians selected by Canada “would have qualified under standard
20″Support for the United Nations was a major element in Canada’s foreign policy.. ..The
early breakdown between the Big Powers in the United Nations, on whose co-operation so
much of the Charter was based, made the position of the Middle Powers such as Canada more
important than it would otherwise have been …. [Middle Powers] stood between the increasing
number of small states which had little power and the great states which had too much. Canada
was one of the most active of these Middle Powers.” L. Pearson, Mike: The Memoirs of the
Rt. Hon. Lester B. Pearson, vol. 2 (Toronto: University of Toronto Press, 1973) at 121.
21″[O]ur reluctance to sign stemmed from.., the traditional Canadian concern to maintain
a direct link between the flow of immigrants to Canada and national economic needs and
conditions …. This signing was a major step forward, in the legal or formal sense, towards a
refugee policy based on the needs of the refugee rather than on the needs of the Canadian
labour market or economy.” Axworthy, supra, note 4 at 5.
19881
REFUGEE LAW IN CANADA
alist pride did result in its belated accession to the Convention and its
Protocol in 1969. The significance of this event can scarcely be overstated,
as adherence to the Convention led Canada to develop a domestic legal
structure to provide for the grant of asylum to Convention refugees, thereby
removing refugee protection from the realm of ad hoc policy to that of law.
To summarize, refugee law in Canada has evolved as an outgrowth of
the traditional policy of promoting immigration in the interest of domestic
economic development. Canada’s commitments to its allies and to the ad-
vancement of international refugee law have attenuated the narrowness of
this focus on self-interest, but it would be wrong to assume that they have
replaced domestic advantage as the cornerstone of Canadian refugee policy.
As the analysis that follows will show, the Canadian policy of “compassion
with realism”2 2 toward refugees impliedly accepts the promotion of the
Canadian national interest as the primary determinant of its refugee policy,
and strives to accommodate other concerns to the extent that they are not
incompatible with that dominant focus. 23
II. The Evolution of a Domestic Legislative Framework Governing Refuge
and Asylum
The 1973 amendments to the Immigration Appeal Board Act estab-
lished the first statutory basis for refugee admissions to Canada. The amend-
ments applied only to refugee claims made from within Canada, and
permitted the Immigration Appeal Board to quash a deportation order in-
sofar as it was determined that there were “reasonable grounds for believing
that the person concerned [was] a refugee protected by the [United Nations]
Convention.”2 4 The procedure established by this enactment proved an
inadequate means of implementing Canada’s obligations under the Refugee
Convention for two reasons. First, it was wholly within the Board’s discre-
tion to grant or withhold landing in any particular case.25 As such, there
22Andras, supra, note 1 at 7.
23″[T]here is a slight, though unsystematic, ideological bias in favour of rightist refugees
from communist regimes and against politically active leftist refugees from conservative/fascist
regimes.
Although since World War II Canada has endeavoured to present herself internationally as
a middle-range, humanitarian power, economics remains the single overriding element deter-
mining migration and refugee policy. . ..” R. Howard, “Contemporary Canadian Refugee Policy:
A Critical Assessment” (1980) 6 Can. Pub. Policy 361 at 361-62.
24An Act to amend the Immigration Appeal Board Act, S.C. 1973-74, c. 27, ss 1, 5. Prior to
this amendment, “political opinion” was often invoked as a ground for landing under the
Immigration Appeal Board’s general equitable jurisdiction.
25S. 15(l)(b)(i) of the Immigration Appeal BoardAct, 1966-67, c. 90 as amended permitted,
but did not require, the Board to quash a deportation order where it was of the view that the
applicant was a refugee protected by the Convention.
REVUE DE DROIT DE McGILL
[Vol. 33
was no guarantee that refugees would in fact receive protection from Canada.
Second, because the refugee claim could only be raised on appeal rather
than at the immigration inquiry itself, those persons whose cases did not
proceed beyond the initial hearing had no means of vindicating their claims
to refugee status.26
This procedure was radically altered by the entry into force of the 1976
Immigration Act 27 which continues to govern refugee policy today.28 The
1976 Act not only reshaped the inland refugee determination system, but
moreover established a legal structure to regulate the whole of Canada’s
inland and overseas programs for the admission of both Convention refugees
and persons and groups in refugee-like situations. Specifically, the law au-
thorizes four distinct approaches to the resettlement of refugees in Canada.
The first means of immigrating to Canada as a refugee is to apply at a
Canadian consulate or embassy abroad as either a Convention refugee seek-
ing resettlement, or as a member of a designated class. A Convention refugee
seeking resettlement is defined as “a Convention refugee who has not be-
come permanently resettled and is unlikely to be voluntarily repatriated or
locally resettled. ‘ 29 In addition to Convention refugees, the government
sponsors the admission to Canada of persons who are members of groups
that have been determined to require resettlement and assistance for hu-
26Pursuant to s. 11 of the Immigration Appeal Board Act, ibid., claimants were entitled to
have their appeal heard only insofar as a quorum of the Board determined that their written
statement disclosed a reasonable claim to refugee status.
27Immigration Act, 1976, S.C. 1976-77, c. 52 [hereinafter Immigration Act, 1976]. This cod-
ification of Canadian law regarding the admission of refugees was proposed in a 1974 Green
Paper: Canada, Department of Manpower and Immigration, Canadian Immigration and Pop-
ulation Study (Ottawa: Information Canada, 1974) (submitted to Minister R. Andras by Deputy
Minister A.E. Gotlieb, 1 December 1974) [hereinafter “the Green Paper”].
28Two Bills were introduced in 1987 to substantially amend the Immigration Act, 1976, ibid.
These Bills would restrict access to the refugee determination system, and establish a new
procedure for the assessment of refugee claims. The Bills are: Bill C-55, An Act to amend the
Immigration Act, 1976 and to amend other Acts in consequence thereof, 2d Sess., 33d ParI.,
1986-87 (1st reading 5 May 1987, Returned to House to consider Senate Amendments following
3d reading, 30 March 1988) [hereinafter Bill C-55]; and Bill C-84, An Act to amend the Im-
migration Act, 1976 and the Criminal Code in consequence thereof, 2d Sess., 33d ParI., 1986-
87 (1st reading 11 August 1987, returned to House for consideration of Senate Amendments
21 October 1987) [hereinafter Bill C-84]. See below, Part IV, for full discussion of these Bills.
29 lmmigration Regulations, 1978, SOR/78-172, ss. 2(1), 7 [hereinafter Immigration
Regulations]. The admission of Convention refugees from abroad is discussed in detail below
at Parts III and IV. It has been observed that the specificity of this definition acknowledges
that “Canada cannot accept all of the world’s refugees, and also recognizes that not all refugees
can benefit from resettlement in Canada”: Department of Manpower and Immigration, Refugee
Provisions of the New Canadian Immigration Act (Ottawa: Department of Manpower and
Immigration, 1978) 2 cited in B. Johnston, “Cautious Kindness: Canada’s Refugee Law” (1981)
1:2 Refuge 3 at 6.
1988]
REFUGEE LAW IN CANADA
manitarian reasons. 30 This procedure permits the immigration to Canada
of neo-refugees 31 who belong to groups that have been the subject of a
regulatory designation. At present, there are three such groups: the Self-
Exiled Persons Designated Class, the Indochinese Designated Class, and the
Political Prisoners and Oppressed Persons Designated Class.
Persons who wish to immigrate to Canada as either a Convention ref-
ugee seeking resettlement or as a member of a designated class must apply
for recognition abroad, meet certain threshold criteria, and demonstrate the
ability to become successfully established in Canada. The government es-
tablished geo-political allotments for sponsorship under these programs, as
a result of which not all persons who meet the eligibility criteria are guar-
anteed admission to Canada.32
The second mechanism for the resettlement of refugees in Canada
evolved during the Indochinese “Boat People” crisis of the late 1970s. The
government agreed to permit Canadian organizations and groups of indi-
viduals to privately sponsor the admission of Convention refugees and des-
ignated class members from abroad. 33 These sponsorships are in addition
to those financed by the government under its resettlement plan, and do
not require the refugee to demonstrate the ability to become successfully
established in Canada as a prerequisite to immigration.
A third procedure by which refugees may enter Canada is the special
measures landing program. Prior to 1987, this system was largely directed
to the needs of certain neo-refugees physically present in Canada who were
Section B of Part III, and Part IV.
30The admission of designated class members from abroad is discussed in detail below,
31The term “neo-refugee” is used herein to denote persons who do not meet the international
legal definition of a refugee as established by the 1951 Convention and 1967 Protocol. In non-
legal terms, the notion of a “refugee” is significantly more inclusive:
In the general concept, a refugee is a person who flees to find refuge and who feels
compelled to leave his normal place of abode on account of any kind of circum-
stances, including disasters, whether natural or man-made, such as those which
result from different kinds of armed conflicts. In the international legal concept, a
refugee is an alien who finds himself outside the country of origin or nationality
for serious reasons of race, religion, nationality, political opinion [or because of
membership in a particular social group].
J. Patmogic, “Refugees – A Continuing Challenge” (1982) 30 Annuaire de droit international
medical 73 at 74.
32See the discussion of the annual refugee plan, below, Part III.
33Groups of not less than five Canadian citizens or permanent residents residing in the
expected community of resettlement, or a corporation having representation in the expected
community of resettlement “may seek to facilitate the admission or arrival in Canada of a
Convention refugee seeking resettlement”. Immigration Regulations, supra, note 29, s. 7(2).
See also below, Part IV.
686
McGILL LAW JOURNAL
[Vol. 33
unwilling to return to their country of origin due to war or severe political
instability.3 4 Such persons were granted a stay of deportation and an em-
ployment authorization, and were generally eligible for landing as perma-
nent residents under relaxed admissions criteria. At present, however, the
program is oriented to the sponsorship by Canadians of the admission of
family members from designated countries of severe strife. 35
Fourth, the Act provides for an inland refugee determination system,
based on the Convention definition of a refugee, to examine the claims of
persons who seek protection as refugees from within Canada or at a Ca-
nadian port of entry.3 6 Major amendments to the Immigration Act intro-
duced in 1987 significantly limit access to the determination system, and
establish a new tribunal to conduct expeditious, adversarial style refugee
hearings, the decisions of which are non-appealable. 37 Those claimants who
are determined to be Convention refugees will in virtually all cases be ad-
mitted to Canada as permanent residents.
Taking these four programs together, Canada can proudly claim to rank
fifth in the world in per capita refugee admissions.3 8 The international and
humanitarian significance of this achievement is, however, mitigated by the
strong economic bias and lack of even-handedness that characterize much
of the refugee selection process. As the detailed discussion that follows dem-
onstrates, Canada’s refugee policy may be internationalist in form, and hu-
34While the Immigration Act, 1976, supra, note 27, makes no direct reference to the policy
of special measures landing, section 115(2) grants to the Governor-in-Council the authority to
exempt any persons from the general requirements of the Act, and to facilitate the admission
of persons for reasons of public policy or due to the existence of compassionate or humanitarian
considerations. The special measures landing program is discussed in detail below, Part V.
350n 20 February 1987, it was announced that “the in Canada portion of all current special
programs is cancelled.. .. Special measures will now apply only to those persons… who apply
at Canadian visa offices abroad”. Telex from J.B. Bissett, Executive Director, Immigration, of
the Canada Employment and Immigration Commission, to Canada Immigration Centres, 20
February 1987.
36The inland refugee determination system is discussed in detail below, Part VI.
37The government took the position that restrictionist legislation was necessary because of
a fear that Canada was in imminent danger of being overwhelmed by non-genuine refugee
claimants:
Over the last few years, refugee claims have increased dramatically. Population
pressures in the Third World have caused massive migration to developed countries.
The Europeans have moved to control abuse of their systems. The U.S. recently
took steps affecting thousands of illegal migrants there. The spill-over from these
events has reached Canada.
Press release of Canada Employment and Immigration Commission, May 1987 [unpublished].
38During the period 1975-1984, only Swaziland, Somalia, Nicaragua, and Australia surpassed
Canada in the ratio of refugees resettled to local population. Refugee Perspectives: 1986-1987,
supra, note 2 at 72.
19881
REFUGEE LAW IN CANADA
manitarian in measure, but it is substantively oriented to the resettlement
of a productive and strategically selected group of immigrants.
III. Government Sponsorship of Refugee Resettlement
The significant distance between Canada and the major refugee-
producing regions has led immigration authorities to conclude that other,
more proximate states should shoulder the duty of providing first asylum
to refugees.39 There is a pervasive belief in official circles that refugees should
seek shelter in the very nearest safe country,40 and that Canada and other
states of destination should be permitted to exercise discretion over which
refugees are to be resettled. This policy is anachronistic in it failure to take
due account of modern transportation links, and unfair in its shifting of the
refugee burden based on the accident of geography. Nonetheless, while cur-
rent law does recognize the role of Canada as a country of first asylum for
those few persons who manage to overcome the practical and legal impe-
diments to access,4 1 the resettlement of refugees from abroad remains the
cornerstone of Canadian refugee policy. 42 In order to facilitate the immi-
gration of Convention and other refugees selected abroad, the Immigration
Act makes provision for the selection of refugees by the government through
its diplomatic posts.
Just over half of total refugee admissions to Canada are made pursuant
to this procedure, in conformity with the geo-political allocations contained
39″There is an essential belief in policy-making circles that Canada, as a country of immi-
gration, can deliver effective humanitarian assistance through its immigration programs in a
way that has greater impact than would be the case if spontaneous asylum were encouraged….
Canada’s geographical distance from the sources of refugee outflows reinforces this belief’:
Girard, supra, note 3 at 5.
4In announcing its 1987 refugee law reform, the government indicated that certain persons
would be excluded from the determination process, including “people who arrive from a safe
country where they have [made] a claim, or [where they have had] a reasonable opportunity
to make one. They will be returned to these countries…. None of these people need Canada’s
protection.” Press release, supra, note 37 at 19.
41″Any person who is finally determined under this Act to be a Convention refugee may …
apply to an immigration officer for landing”. Immigration Act, 1976, supra, note 27, s. 48.3(l)
and generally, ss 45-48, as they would be amended by Bill C-55, supra, note 28, s. 15.
42″The [Immigration Commission] does not view Canada as a resettlement country only,
however, it does see it as primarily a resettlement country…. The department is not trying to
eliminate, it is argued, but is trying to limit Canada as a country of first asylum.” Note, “Canada
– A Country of First Asylum” (1984) 4:2 Refuge 14 at 15. See also note 39, supra.
REVUE DE DROIT DE McGILL
[Vol. 33
in the government’s annual refugee plan.43 The 1985 and 1986 plans, for
example, were as follows:”
Region
Eastern Europe
Southeast Asia
Latin America
Africa
Middle East
Other
Reserve
1985
Target
2,200
3,700
3,000
1,000
800
200
100
11,000
1986
Target
3,100
3,200
3,200
1,000
900
300
300
12,000
Change
+ 41%
–
14%
7%
+
0%
+ 13%
+ 50%
+300%
+
9%
In preparing its annual plan, the government consults the United Nations
High Commissioner for Refugees, the provinces, and the private sector. It
is argued that the process of fixing the allocations provides a flexible yet
controlled response to refugee-producing situations as they evolve, and af-
fords a means of reconciling perceived resettlement capacity with the actual
extent of need abroad.45 The numerical targets are, however, open to
criticism.
First, there appears to be little correlation between the specific geo-
political allocations and the true extent of the refugee resettlement need
abroad. For example, the consistent allocation of approximately 25% of total
government sponsorships to Eastern Europeans46 reflects an outmoded Cold
War notion of resettlement priorities. 47 The generous approach to the im-
migration of Eastern Europeans contrasts markedly with the niggardly al-
lotment of fewer than 10% of government refugee sponsorships to Latin
431n 1984, the government sponsored 50.8% (10,547/20,773) of refugee admissions; in 1985,
the government sponsorship rate was 58.1% (11,559/19,885). Refugee Perspectives: 1986.1987,
supra, note 2 at 60. These figures include a combination of Convention refugees and members
of designated classes: see below, text accompanying notes 96-98.
“Ibid. at 58. These figures indicate the maximum number of authorized admissions. In fact,
the target allocations are not always filled. Ibid. at 60.
places. Ibid. at 58.
45Ibid. at 6-14.
46During the period 1980-1986, Eastern European refugees were allocated 25.796 of total
47″The Canadian government has sometimes been criticized for being unduly biased towards
refugees from Eastern Europe, either because they are anti-communist or because they are Jews
whose immigration is strongly supported by the Canadian Jewish community. Immigration
Appeal Board documents indicate that not all individuals who claim refugee status from the
Eastern Bloc obtain it…. Nevertheless, various Ministers have availed themselves of their
humanitarian jurisdiction to allow Eastern bloc claimants not formally refugees to stay in
Canada.” Howard, supra, note 23 at 365.
1988]
REFUGEE LAW IN CANADA
Americans during the crisis years of the late 1970s and early 1980s. 48 The
extent of totalitarian violence during that period is well-documented, 4 9 and
Canada’s geographical position and transportation links made it a logical
country of asylum for Latin Americans.50 Broadly based assistance for per-
secutees in Latin America was not, however, forthcoming from Canada when
it was needed most.5 1 Similarly, the average ceiling of 7% of the total re-
settlement allocation assigned to refugees from Africa is clearly out of step
with any objective assessment of relative degrees of need.52 While it is true
that there is a preference for voluntary repatriation and local integration of
African refugees, 53 the growing influx or urban refugees into the nations
bordering South Africa has created major difficulties for states of reception,
with the result that increased resettlement opportunities abroad are urgently
needed. 54
government-sponsored places. Refugee Perspectives: 1986-1987, supra, note 2 at 32.
48During the period 1980-1982, Latin Americans were allotted approximately 5.5% of total
49″We have seen, to our sorrow, the results of military rule in Chile, Argentina, and Uruguay
in the last decade. We have witnessed the activities of a less bureaucratic, but in some ways
even more vicious, form of militarism in El Salvador and Guatemala…. [W]e cannot fail to
recognize the cost of forfeiting democracy for the illusion of order that a military regime
imposes. Whether one counts this cost in terms of people dead or “disappeared”, or of insti-
tutions dismantled, or of ignorance fostered by censorship, or of reforms nullified, it amounts
to a devastation no society would willingly bring upon itself.” C. Brown, ed., With Friends
Like These: The Americas Watch Report on Human Rights and U.S. Policy in Latin America
(New York: Pantheon, 1985) at xviii.
50The government has impliedly admitted that it is logical for Canada to serve as a country
other than
can lay claim on Canada as a natural source
of first asylum to Latin Americans: “Few people who seek asylum in Canada –
those originating in the Western hemisphere –
of asylum.” (emphasis added). Girard, supra, note 3 at 5.
511t has been suggested that the apparent bias “seems to be based upon a perception of Latin
American refugees as communists, subversives or revolutionaries who would undermine the
Canadian political system.” Howard, supra, note 23 at 370.
52The Canadian government has recognized that “African nations are providing asylum to
approximately half the world’s refugees and displaced persons. Some five million refugees …
[have] found refuge in some of the least developed nations on the continent.” Refugee Per-
spectives: 1986-1987, supra, note 2 at 19. In contrast, the allocation for the resettlement of
African refugees, which was established only in 1981, has remained constant at just 1,000
persons per year since 1983. Refugee Perspectives: 1986-1987, supra at 58.
53″[Tlhe international community and the UNHCR continue to emphasize local solutions
in Africa –
notably voluntary repatriation and local integration, combined with efforts to
provide community development. Within this context, programs for resettlement outside Africa
are continuing to form a very small but crucial component of the overall strategy for this
refugee problem. Canada is steadily improving its ability to locate and identify those refugees
for whom resettlement is the only solution.” Employment and Immigration Canada, Refugee
Perspectives: 1985-1986 (Ottawa: Employment and Immigration Canada, 1985) at 27 (emphasis
added) [hereinafter Refugee Perspectives: 1985-1986].
54While states of asylum in southern Africa are able to integrate most rural refugees suc-
cessfully, persistent high unemployment rates in urban areas make it difficult for these countries
to absorb the flow of refugees whose education and experience lead them to seek work op-
McGILL LAW JOURNAL
[Vol. 33
Second, the overseas selection allotments are highly responsive to pre-
vailing economic conditions in Canada. 5 In recent years, the government
has decreased refugee targets when confronted by economic recession or
high unemployment domestically. In 1981, for example, the government
plan called for the sponsorship of 16,000 refugees 56 This figure was lowered
to 14,000 refugees in 1982, to 12,000 refugees in 1983, and to just 10,000
refugees in 1984, years during which difficult economic circumstances pre-
vailed in Canada.57 With the recent economic recovery, the allotments have
begun to rise, first to 11,000 in 1985, and to 12,000 in 1986.58
In summary, the scope and distribution of the government sponsorship
program are not truly responsive to the extent of refugee needs abroad.
Rather, a combination of ideological considerations and regard for domestic
economic health restricts the program’s purview to coincide with prevailing
Canadian political and economic priorities.
A. The Admission of Convention Refugees from Abroad
The actual selection of Convention refugees to be resettled within the
total target allocation is under the authority of Canadian visa officers sta-
tioned abroad.5 9 Eligibility for selection under this program is based on four
criteria.
First, applicants must meet the Convention definition of a refugee.60
Consular officials abroad have only informal access to the expertise of the
domestic refugee determination authority, and are often required to make
difficult interpretive decisions without the benefit of legal and other appro-
portunities in the cities: Proceedings of the Conference on the Implementation of the OA. U.
and U.N. Conventions and Domestic Legislation Concerning the Rights and Obligations of
Refugees in Africa, held under the auspices of the Refugee Studies Programme, Oxford Uni-
versity, September 1986.
5sThe government indicated that the reduction of the 1983 refugee sponsorship quota was
prompted by concern that “[w]ith employment and housing shortages, we can no longer absorb
as many [refugees] as when the economy is stronger.” Note, “Canadian Refugee Policy (1983)”
(1983) 2:3 Refuge 4.
56Refugee Perspectives: 1986-1987, supra, note 2 at 58.
57ibid.
58ibid.
59Employment and Immigration Canada, Immigration Manual: Selection and Control (Ot-
tawa: Employment and Immigration Canada, 1987), s. I.S. 24 [hereinafter Immigration
Manual].
6Olbid.
1988]
REFUGEE LAW IN CANADA
priate resources. 61 Moreover, while negative determinations are reviewed
by a senior officer,62 a refugee abroad has no right to contest the merits of
the decision.
Second, the immigration regulations restrict eligibility to persons who
have not been permanently resettled. Applicants who, for example, have
not been authorized to work, or who have no long-term right of residence
are the intended beneficiaries of the program.63
Third, it must be ascertained that the refugee is not a member of one
of the inadmissible classes established by the Immigration Act. 64 Persons
who have been convicted of a criminal offense, 65 or who “might reasonably
be expected to cause excessive demands on health or social services” 66 are
among those who may be excluded.
Fourth, and perhaps most important, it must be determined that the
person who seeks admission as a refugee is capable of “successful estab-
61The Immigration Manual, supra, note 59, provides some guidance in the application of
the definition in part I.S. 3.24. However, the summary is only three pages long, and offers some
advice of questionable accuracy. For example, Part I.S. 3.24(2)(e) suggests that “only persecution
which is specific and personal is likely to make a person eligible for selection as a refugee.”
This is in direct contradiction to scholarly opinion:
Where large groups are seriously affected by a government’s political, economic,
and social policies or by the outbreak of uncontrolled communal violence, it would
appear wrong in principle to limit the concept of persecution to measures imme-
diately identifiable as direct and individual.
G. Goodwin-Gill, The Refugee in International Law (Toronto: Oxford University Press, 1983)
at 44-45; the same point is made by A. Grahl-Madsen, The Status ofRefugees in International
Law (Leiden, Netherlands: A.W. Sijthoff, 1966) at 213.
62″Except at one-man posts, all negative eligibility decisions must have the concurrence of
63″Refugees who have been permanently resettled in another country are still entitled to the
protection of the refugee Convention and Protocol. However, such persons are not to be selected
in the refugee class for immigration to Canada unless they are facing persecution in their
country of resettlement.” Immigration Manual, supra, note 59, s. I.S. 3.24(5)(a).
a senior immigration officer.” Immigration Manual, supra, note 59, s. I.S. 3.24(7)(b).
6Officers abroad are required to ensure compliance with the general immigration require-
ments established by laws. Immigration Manual, supra, note 59, s. I.S. 3.24(6). A series of
“inadmissible classes” are prescribed by the Immigration Act, 1976, supra, note 27, s. 19.
65Specifically excluded are “persons who have been convicted of an offence that, ifcommitted
in Canada, constitutes or, if committed outside Canada, would constitute an offence … for
which a maximum term of imprisonment of ten years or more may be imposed….” Immi-
gration Act, 1976, supra, note 27, s. 19(l)(c).
66hnmigration Act, 1976, supra, note 27, s. 19(l)(a)(ii). While this classification is not a
ground to exclude a person determined to be a Convention refugee by the inland determination
process, officers abroad are directed to submit full details of medically inadmissible persons
to Immigration headquarters “before a final decision is taken.” Immigration Manual, supra,
note 59, s. I.S. 3.33.
REVUE DE DROIT DE McGILL
[Vol. 33
lishment in Canada. ’67 In making this determination, visa officers are re-
quired to take into consideration the existence of financial or other
assistance, in addition to such traditional immigration criteria as personal
motivation, education, experience, and the demand in Canada for persons
with comparable skills. 68
Refugees selected for government sponsorship receive interest-free
travel loans, language training, counselling, and financial assistance until
they are permanently employed in Canada.69 This willingness to resettle
Convention refugees from abroad is a laudatory contribution by Canada to
the process of international burden-sharing. 70 On the other hand, the de-
cision not to resettle refugees except as an option of last resort, and further
to exclude refugees who either fail to conform to traditional selection criteria
or who cannot demonstrate the capacity for self-support, represents a sig-
nificant limitation on that contribution in the interest of concretizing the
link between general immigration policy and refugee resettlement.
B. The Admission of Neo-Refugees from Abroad
In addition to the admission of Convention refugees, Canadian law
provides for the overseas selection of displaced and persecuted persons who
require resettlement and assistance on humanitarian grounds.71 This man-
date is implemented through the designated class policy. In many respects,
designated class admissions are based on the same criteria as those applied
to Convention refugees seeking resettlement. Members of the designated
classes must be outside Canada, must meet certain threshold criteria, and
must be deemed capable of successful establishment in Canada. The major
innovation of the program is that applicants are not required to satisfy the
pendent immigrants”: Immigration Manual, supra, note 59, s. I.S. 3.24(6)(a).
67Officers are directed to “take into consideration all of the factors used in assessing inde-
68Particularly important are the motivation and personal qualities essential to becoming
established; and the adequacy of the applicant’s education and training to ensure that “in the
long term, the refugee will have the earning capacity to support his family and will not be
dependent on welfare indefinitely.” Immigration Manual, supra, note 59, s. I.S. 3.24(6)(b)(ii).
69Employment and Immigration Canada, Canada’s Refugee Strategy B2 (Hull, Que.: Supply
and Services Canada, 1980).
70″Burden-sharing, certainly in cases of large-scale refugee movements, is a virtual sine qua
non for the effective operation of a comprehensive non-refoulement policy intended to ensure
safe haven for all refugees from political persecution or other man-made or natural disasters.”
J.-P. Fonteyne, “Burden-Sharing: An Analysis of the Nature and Function of International
Solidarity in Cases of Mass Influx of Refugees” (1983) 8 Australian Y.B. Int’l. L. 162 at 175.
71″Any person who is a member of a class designated by the Governor in Council as a class,
the admission of members of which would be in accordance with Canada’s humanitarian
tradition with respect to the displaced and the persecuted, may be granted admission ….
Immigration Act, 1976, supra, note 27, s. 6(2).
1988]
REFUGEE LAW IN CANADA
Convention definition of a refugee, but need only be in refugee-like situa-
tions as defined by regulation.
There are currently three designated classes: the Self-Exiled Persons
Designated Class, the Indochinese Designated Class, and the Political Pris-
oners and Oppressed Persons Designated Class. The regulations that estab-
lished these classes came into force on January 1, 1979, and are subject to
periodic renewal. 72
1.
The Self-Exiled Persons Designated Class
The Self-Exiled Persons Designated Class is by far the most liberally
defined of the three designated classes. This program permits former na-
tionals or residents of an Eastern European country (other than Yugo-
slavia)73 to resettle in Canada. The program encompasses all persons who
have left Eastern Europe, are unwilling or unable to return there, and who
wish to come to Canada.74 There is no requirement that the applicant have
suffered in any way in his or her country of origin, but rather only that he
or she have left that country and want to immigrate to Canada.
One might reasonably question the legitimacy of elevating the subjects
of this class from the status of ordinary migrants to that of neo-refugees, as
only by accepting the dated logic that residence in a Communist country is
inherently persecutory can such a policy be defended. The government itself
has justified the retention of this program not on the ground that all Eastern
Europeans face imminent peril and are thus worthy of international pro-
tection, but rather by pointing to the popular support for the program, and
also by reference to the “good technical skills … [and] high proportion of
talented and creative professionals and artists” among this immigrant
group.75 It is thus difficult to view the Self-Exiled Persons Designated Class
as an appropriate exercise of the legislative discretion to assist those who
require humanitarian assistance. Rather, the program appears to be a vestige
of the Cold War policy of facilitating the immigration of persons opposed
72Indochinese Designated Class Regulations, SOR/78-931, s. 6; Self-Exiled Persons Desig-
nated Class Regulations, SOR/78-933, s. 6; Political Prisoners and Oppressed Persons Desig-
nated Class Regulations, SOR/82-977, s. 6.
73The eligible countries of origin include Albania, Bulgaria, Czechoslovakia, German Dem-
ocratic Republic, Hungary, Poland, Romania, and the Union of Soviet Socialist Republics:
Self-Exiled Persons Class Regulations, ibid., Schedule I.
74$elf-Exiled Persons Designated Class Regulations, supra, note 72, s. 2.
75Canada Employment and Immigration Commission, Refugee Policy Division, “Refugee
and Humanitarian Programs” (January 1980) [unpublished internal document] at part 8 [here-
inafter Refugee and Humanitarian Programs].
McGILL LAW JOURNAL
[Vol. 33
to continued residence in Communist states, thereby securing access to
highly skilled and productive immigrants. 76
2.
The Indochinese Designated Class
This designated class is intended “to aid in an international effort to
provide resettlement opportunities for Vietnamese, Cambodia, and Laotian
refugees who have fled their countries and are in desperate need of per-
manent homes.”‘ 77 To qualify, applicants must be citizens or former habitual
residents ofKampuchea, Laos, or Vietnam who left their country subsequent
to 30 April 1975 not be permanently resettled elsewhere, be unwilling to
return to their country of origin, and seek resettlement in Canada.78
During 1979 and 1980 alone, the government sponsored approximately
26,000 “boat people” pursuant to this program. 79 Canada admitted nearly
7,000 members of the Indo-chinese Designated Class in 1981, 80 and has
sponsored the resettlement of an average of more than 3,000 Indo-chinese
neo-refugees during each succeeding year.81
3.
The Political Prisoners and Oppressed Persons Designated Class
Until Poland was added to the list of countries under this class in 1982,
it was known as the Latin American Designated Class. The class was created
to meet a call from the United Nations High Commissioner for Refugees
to “alleviate the plight of Chileans and Argentinians … whose lives have
been affected by the political situations in these countries. ‘8 2 Since the class
came into force in 1979, El Salvador, Uruguay, Guatemale, and Poland have
been added to the list of eligible countries, and Argentina, one of the two
original countries in the class, was removed.8 3
76″The record indicates that Canada has, to say the least, dragged its feet when refugees with
opinions critical of the prevailing political and economic order in Canada have applied for
acceptance to this country. .. Refugees from communist countries, to the contrary, have gen-
erally been welcomed by Canadian authorities.” G. Dirks, “The Green Paper and Canadian
Refugee Policy” (1975) 7:1 Canadian Ethnic Studies 61 at 63.
77Supra, note 75, Part 6.
78lndochinese Designated Class Regulations, supra, note 72, s. 2.
79Employment and Immigration Canada, Indochinese Refugees: The Canadian Response,
1979 and 1980 at 8 (Hull, Que.: Supply and Services Canada, 1982) [hereinafter Indochinese
Refugees].
80Refugee Perspectives: 1985-1986, supra, note 53 at 33 and 42.
81Ibid. See also Refugee Perspectives: 1986-1987, supra, note 2 at 59 and 68.
82Supra, note 75 at Part 7.
83Political Prisoners and Oppressed Persons Designated Class Regulations, supra, note 72,
Schedule.
19881
REFUGEE LAW IN CANADA
The program is accessible to nationals of the enumerated countries who
remain in their country of origin. 84 Applicants must either meet the Con-
vention definition of a refugee (excluding the requirement to be outside
their country of origin), or
as a direct result of acts that in Canada would be considered a legitimate
expression of free thought or a legitimate exercise of civil rights pertaining to
dissent or to trade union activity, have been (i) detained or imprisoned for a
period exceeding 72 hours with or without charge, or (ii) subjected to some
other recurring form of penal control….8 5
This definition is clearly much more exacting than those that establish the
Self-Exiled Persons Designated Class and the Indo-chinese Designated Class.
Whereas no examination is conducted of the motives for departure of East-
ern European or Indo-chinese designated class applicants, members of the
Political Prisoners and Oppressed Persons Designated Class must either
meet a relaxed definition of political persecution, or the Convention defi-
nition itself.
The advantage, on the other hand, is that this program is explicitly
addressed to the plight of those who have been unable to leave their country
of origin, yet have suffered for the exercise of basic human rights. Logically,
however, the program should also address the needs of persons persecuted
for the exercise of socio-economic rights, 86 such as participation in the cul-
tural life of the community, or refusal to work in discriminatory or unsafe
conditions. It also appears anomalous that persons who meet the regulatory
standard of persecution may be assisted under this program so long as they
remain in their country of origin, but are forced to meet the more strict
Convention definition of a refugee if they have managed to escape to a
neighboring state.87
84Ibid., s. 2.
85Ibid., s. 2(a)(i) and (ii).
86The Regulations define eligibility as flowing from detention or other penal control resulting
from “a legitimate expression of free thought or legitimate exercise of civil rights.” Quaere
whether the failure to extend protection to persons punished for the exercise of social, economic
or cultural rights was designed to exclude left-wing political activists. See Howard, supra, note
23 at 370.
87The possibility of exclusion arises from the fact that persons from a designated country
who have managed to escape to another country will be required to meet the Convention
definition of a refugee in order to be eligible for admission to Canada: see above, Section A
of Part III. On the other hand, persons who remain within the boundaries of the designated
state may benefit from the relaxed definition established by the Immigration Regulations, supra,
note 29, s. 2(a).
REVUE DE DROIT DE McGILL
[Vol. 33
4.
Critique of the Designated Class Sponsorship Program
The designated class admissions program is open to several significant
criticisms.
First, as in the case of overseas Convention refugee admissions,”8 no
member of a designated class will be allowed to immigrate to Canada unless
he or she is judged able to become sucessfully established in Canada. 89 The
impact on Canadian economic well-being thus remains an overriding con-
sideration in the making of specific selection decisions.
Second, the stated objective of promoting flexible and expeditious re-
sponses to humanitarian needs for resettlement appears to have been largely
compromised by political and domestic economic considerations reflected
in the descriptions of the three designated classes. The most open-ended
class includes the well-educated and anti-Communist Eastern Europeans,
who are treated as neo-refugees simply because they no longer wish to reside
in their country of origin. 90 The criteria for Indo-chinese applicants are
somewhat more de-limited, 91 reflecting the fear of a potentially massive
demand for immigration to Canada from this region, notwithstanding the
high degree of personal motivation and compatible political convictions of
this group. Latin American refugees, who in the main have opposed tra-
ditionally pro-Western governments, are faced with the most stringent ob-
ligation of all, in that they must demonstrate specific forms of past
persecution 92 in order to qualify for protection. While the repression of civil
liberties in Eastern Europe,93 the economic proscription and systematized
88See above, text accompanying note 67.
89lndochinese Designated Class Regulations, supra, note 72, s. 5; SelfExiled Persons Class
Regulations, supra, note 72, s. 5; Political Prisoners and Oppressed Persons Designated Class
Regulations, supra, note 72, s. 5.
90″The program for Eastern Europeans consists of those.., who for a variety of less serious
reasons have left Eastern Europe … and cannot or will not return to their home countries”:
Refugee and Humanitarian Programs, supra, note 75, Part 8.
91The major definitional distinctions are first, that the members of the Indochinese Desig-
nated Class must be citizens or habitual residents of a designated country at the time of
application, whereas former citizens and residents of listed countries are eligible for consid-
eration under the Self-Exiled Persons Class program; and second, that members of the Indo-
chinese Designated Class must have left their country after April 30, 1975, whereas there is
no date limitation for members of the Self-Exiled Persons Class: Indochinese Designated Class
Regulations, supra, note 72, s. 2; Self-Exiled Persons Class Regulations, supra, note 72, s. 2.
92Political Prisoners and Oppressed Persons Designated Class Regulations, supra, note 72, s.
2.
93In Poland, for example, there was concern ” about the arrest and detention of hundreds
of prisoners of conscience …. Most of the people arrested and detained… were charged with
disseminating and printing illegal publications, participating in the underground Radio Soli-
darity, engaging in banned trade union activities, or membership of an illegal organization.”
Amnesty International, Report 1985 (London: Amnesty International Publications, 1985) at
275. Poland was the primary source of immigration to Canada under the Self-Exiled Persons
Class. Refugee Perspectives: 1986-1987, supra, note 2 at 61.
1988]
REFUGEE LAW IN CANADA
discrimination in parts of Indochina, 94 and the brutal militaristic torture
and killings in some Latin America nations 95 are all grounds for legitimate
humanitarian concern, the relative severity of the oppression and perse-
cution in these regions is roughly the opposite of the relative stringency of
the threshold tests imposed by the designated class regulations.
Third, the designated class admissions are planned and reported in such
a way that Canada’s commitment to resettlement work in favor of Con-
vention refugees is susceptible to largely invisible circumscription. Desig-
nated class immigrants sponsored by the government are combined with
Convention refugee admissions for the purpose of filling the immigration
allotments established by the annual refugee plan. 96 Immigration and con-
sular authorities thus have effective discretion to authorize the admission
of a designated class member from a given region in lieu of the immigration
of a Convention refugee from that same region. The available data indicate
that only about 30% of the total government sponsorship allocations are in
fact awarded to Convention refugees.97 In reporting these admissions, how-
ever, no attempt is made to distinguish between the places assigned to ref-
ugees protected under the Convention and those allotted to designated class
immigrants. Because many of those admitted under the designated class
policy, and in particular the members of the Self-Exiled Persons Designated
94In Vietnam, the primary source of immigration to Canada under the Indochinese Desig-
nated Class Program, “[r]eports from refugees are consistent concerning the severity of the
conditions for prisoners in the ‘reeducation camps’…. Those suspected of political crimes may
be sent to ‘reeducation camps’ without trial or charge. The Government continues to hold
large numbers of people in the camps, including both those whom the Government distrusts
because of their association with the former Republic of Vietnam, and those whose current
political views are suspect…. [Too], the ethnic Chinese are severely discriminated against
through denial of officially sanctioned employment and educational opportunities.” Depart-
ment of State of the United States of America, Country Reports on Human Rights Practices
for 1984 (Washington: Department of State, 1985) at 893-902.
95In El Salvador, for example, there is concern “about massive human rights violations,
including arbitrary arrest and prolonged detention without trial, torture, ‘disappearances’, and
individual and mass extrajudicial executions. Victims of such abuses by government forces,
sometimes in uniform, and sometimes in plain clothes in the guise of so-called ‘death squads’,
have included people suspected of opposition to the authorities from all sectors of Salvadorian
society… In September [1984] President Napoleon Duarte … was quoted by the international
press as acknowledging that ‘5,000 people who have disappeared in El Salvador are most
probably dead’, and that the murders of 40,000 others would go unsolved because ‘the state
is incapable of prosecuting the criminals’.” Amnesty International, supra, note 93, at 143-44.
El Salvador is the primary source of immigration to Canada under the Political Prisoners and
Oppressed Persons Designated Class: Refugee Perspectives: 1986-1987, supra, note 2 at 61.
96Supra, note 75 at part 2.
971n 1983, for example, 9,867 of the 13,017 refugees selected overseas (76%) were members
of a designated class. In 1984,9,714 of the 14,439 refugees admitted abroad (67%) were members
of a designated class. Canada Employment and Immigration Commission, Immigration Sta-
tistics, 1984 (Ottawa: Ministry of Employment and Immigration, 1985) at 18-19.
McGILL LAW JOURNAL
[Vol. 33
Class, are not refugees at all,98 the sponsorship allocation statistics give the
impression of a larger Canadian contribution to the relief of the international
refugee burden than is actually the case.
IV. Private Sponsorship of Refugees from Abroad
Over and above those who immigrate to Canada pursuant to the gov-
ernment’s annual refugee plan, both Convention refugees and the members
of designated classes may also be privately sponsored. 99 Under this pro-
cedure, groups of private individuals, incorporated local organizations, and
national humanitarian agencies100 enter into sponsorship agreements with
the government in which they agree to provide resettlement assistance for
a refugee or a refugee family for up to one year, or until the refugee is self-
sufficient. 101 The government in turn relies upon these commitments in
instructing its posts abroad to seek out additional refugees and designated
class members for resettlement in Canada. At the height of the resettlement
effort on behalf of the Indo-chinese “boat people” during 1979 and 1980,
more than 7,000 different private groups and organizations sponsored the
admission to Canada of some 34,000 persons, 0 2 significantly more than the
number admitted independently by the government. 10 3 More recently, an
average of nearly 3,500 Convention refugees and designated class members
have immigrated to Canada under the private sponsorship program each
98See supra, note 75.
99 lmmigration Regulation, 1978, supra, note 29.
’00During 1983, 4,076 or roughly 23% of all refugee admissions to Canada were by way of
private sponsorship. During both 1984 and 1985, private sponsorship accounted for only about
19% of total refugee admissions (3,893 and 3,795 refugees in each year respectively): Refugee
Perspectives: 1986-1987, supra, note 2 at 60 and, Refugee Perspectives: 1985-1986, supra, note
53 at 34. The major sponsors during 1982-1985 included 11 religious organizations, 4 national
ethnic federations, and 2 charitable associations. These groups accounted for 79% of all privately
sponsored refugee admissions during the period 1982-1985. Refugee Perspectives: 1986-1987,
supra, note 2 at 67.
01Sponsors must give “a written undertaking to the Minister to make provision for lodging,
care, maintenance and resettlement assistance for the Convention refugee and his accompa-
nying dependants for a period of one year.” Immigration Regulations, supra, note 29, s. 7(2)(c).
102″Never before had Canada been involved in a refugee movement which arose so dra-
matically or persisted in such large numbers for so long. Never had the distances been so vast,
the cultural differences so pronounced. Never had groups of Canadians, motivated by consci-
ence and a determination to relieve mass suffering, become so personally involved; and never
before had they joined with their federal and provincial governments in a formal partnership
to provide new homelands for refugees”: Indochinese Refugees, supra, note 79 at 1.
103During 1979 and 1980, a total of 59,970 refugees and designated class members were
admitted to Canada from Southeast Asia. Approximately 43% were sponsored by the govern-
ment, and 57% were admitted pursuant to the private sponsorship program. Employment and
Immigration Canada, Refugee Perspectives: 1985-1986, supra, note 53 at 45, and supra, note
79 at I.
1988]
REFUGEE LAW IN CANADA
year, accounting for approximately 20% of Canada’s total refugee
admissions. 0 4
The private sponsorhsip procedure gives a great deal of discretion to
the sponsoring group or organization. The sponsor may specify the number
of people and the ethnic group it wishes to help, and may even name a
particular individual or family.105 In the result, the sponsorship program
benefits large numbers of Eastern Europeans and Southeast Asians,10 6 but
has resulted in the admission of few refugees from Latin America, the Middle
East, and Africa.’ 07 Numerical, organizational, and resource inequalities
among the various Canadian expatriate communities, combined with the
greater media visibility of certain refugee groups, mean that there is limited
potential for the private sponsorship program to offset the regional bias of
the government sponsorship scheme.’0 8
Because the financial obligation for the sponsored refugee’s initial year
in Canada falls on a private group, the regulations do not require applicants
to meet traditional economic self-support criteria for entry into Canada. 0 9
In practice, however, this does not seem to have led posts abroad to select
applicants with fewer job market and other traditional qualifications, as
there is apparently concern not to overburden Canadian refugee sponsors
and thereby jeopardize their continued participation in the program.” 0
Recent experience indicates that privately sponsored refugees adapt well
to Canada, and indeed find employment more readily than their govern-
ment-sponsored counterparts. 1 It also seems clear that the social integra-
104Private group sponsorships during the period 1982-1985 accounted for the admission of
4,597 persons (1982), 2,671 persons (1983), 3,178 persons (1984), and 4,957 persons (1985):
Refugee Perspectives: 1986-1987, supra, note 2 at 68.
105lmmigration Manual, supra, note 59, ss 3.38(2), 3.38(4)(b) and 3.38(5).
106During the period 1982-1985, 43% of privately-sponsored refugees were from each of
Southeast Asia and Eastern Europe, leaving only 14% of private sponsorships for persons for
all other areas of the world: Refugee Perspectives 1986-1987, supra, note 2 at 68.
107During the period 1982-1985, 7% of privately-sponsored refugees were from the Middle
East; 5% were from Latin America; and 1% were from each of Africa and “other areas.” Ibid.
at 68.
108See above, text accompanying notes 46ff.
109″If the applicant meets eligibility criteria, the officer will determine whether the individual
will be able to establish himself successfully in Canada within a reasonable period of time. In
making his decision, the officer will take into consideration … the specific help which would
be offered by the prospective sponsoring group or organization.” Immigration Manual, supra,
note 59, s. I.S. 3.38(7)(a).
I10Interview with Professor Howard Adelman, Founding Director of the Refugee Documen-
tation Project, York University, Toronto, August 22, 1986.
“‘On average, privately-sponsored Indochinese refugees found employment four weeks ear-
lier than government-sponsored refugees did. Employment and Immigration Canada, “Private
Sponsorship vs. Government Assistance” (1982) 2:1 Refuge 4 at 4-5.
REVUE DE DROIT DE McGILL
[Vol. 33
tion of the privately sponsored refugees is facilitated by their ready access
to a group of Canadians directly concerned with their welfare. 12 The pro-
gram is, however, open to criticism on the ground that it places refugees in
the often uncomfortable position of being forced to rely on charity.13 More-
over it may be argued that the government should not be permitted to make
the implementation of its international burden-sharing obligation largely
dependent on the goodwill of the private sector. On balance, however, pri-
vate sponsorship is an important vehicle for the direct injection by Cana-
dians of humanitarianism into refugee resettlement priorities.
V. Special Measures Programs
There is an overriding discretion vested in the federal cabinet to facil-
itate the admission of persons “for reasons of public policy or due to the
existence of compassionate or humanitarian considerations.”‘ 14 In reliance
on this authority, administrative procedures have been developed to permit
persons from countries that are experiencing adverse domestic events to
benefit from the functional equivalent of temporary asylum, and even to
apply for status as permanent residents. Approximately 20% of Canada’s
refugee admissions in recent years have been made on the basis of the
initiatives established in reliance on this broadly based discretionary
authority.”15
Special measures programs were primarily addressed to the needs of
refugees from Chile, El Salvador, Guatemala, Iran, Lebanon, and Sri
Lanka. 1 6 The programs authorized the issuance of a stay of execution on
removal orders against persons from these countries who were physically
present in Canada. 117 Nationals of the included countries were generally
” 2″Private sponsorship brings strong personal support, knowledge of the community and
networks of Canadian friends and acquaintances to refugee resettlement.” Ibid. at 4. The
program is, however, open to criticism on the ground that it places refugees in the often
uncomfortable position of being forced to rely on charity.
l 3″[P]rivately sponsored refugees sometimes expressed resentment at receiving less than
government-assisted refugees; for instance, they were often given hand-me-down clothes instead
of money for new items. Some refugees were troubled by feeling indebted to a private benefactor,
some CEC officers noted, and preferred receiving monies on the basis of government entitle-
ment.” Ibid. at 5.
” 4lmmigration Act, 1976, supra, note 27, s. 115(2).
15In 1984, 5,206 persons (25% of total refugee acceptances) were admitted to Canada pur-
suant to the special measures programs. In 1985, this number fell to 3,196 (16% of total refugee
admissions): Refugee Perspectives: 1986-1987, supra, note 2 at 60.
116There were also special measures programs of more limited scope for the nationals of
Ethiopia and Iraq. Immigration Manual, supra, note 59, s. I.S. 26.
“7Removal orders were suspended in regard to the nationals of El Salvador, Iran, Lebanon,
and Sri Lanka. Furthermore, eligible Chileans were only removed with the consent of National
Immigration Headquarters. Ibid., s. I.S. 26.
1988]
REFUGEE LAW IN CANADA
issued limited duration employment authorizations, upon the expiration of
which they were interviewed by immigration authorities. Insofar as the
applicant met the test of successful establishment in Canada (he or she was
working, spoke or was learning an official language, and showed realistic
plans for future self-support), a grant of landing on the basis of relaxed
criteria could be made.” 8 Too, most of the programs provided for the ex-
pedited sponsorship of family members from the countries concerned. 119
In February 1987, however, the inland protection aspect of these ini-
tiaties was summarily cancelled as part of the government’s refugee law
reform. Citing concern over the potential for abuse by non-genuine refugee
claimants, the government announced that the programs would be “mod-
ified to focus [exclusively] on overseas processing … of the relatives of Ca-
nadians affected by events in these countries.”‘ 20
An examination of the context within which the special measures were
established reveals that they played an important part in the reduction of
caseload pressure on the inland refugee determination authority. Special
measures programs were only implemented for countries that had either
produced a significant flow of persons into the Canadian inland refugee
determination system, or could reasonably have been expected to do so
given prevailing conditions. None of the countries was generating large
numbers of non-genuine refugee claimants in Canada. Because of this pat-
tern of successful refugee claims, persons from the countries concerned
would in many, if not most, cases have been allowed to remain in Canada
under the general refugee law.’ 21 The special measures programs created an
alternative administrative scheme for handling the claims of persons from
such recognized refugee-producing countries, thereby freeing up scarce ju-
dicial resources to deal with more contentious claims to refugee status.
A second, less positive role of the special measures programs may be
discerned from the frequent practice of establishing a special measures pro-
gram contemporaneaously with the imposition of a comprehensive visa
requirement on a known refugee-producing nation. Four of the five major
special measures programs were implemented in conjunction with a visa
requirement designed to stop the flow of refugee claimants from those coun-
11lnland independent applications were permitted from the nationals of Chile, El Salvador,
Guatemala, Iran, and Lebanon. Ibid., s. I.S. 26.
1’9 Special overseas sponsorship provisions are provided for nationals of Chile, El Salvador,
Guatemala, Lebanon, and Sri Lanka. Ibid., s. I.S. 26.
12DTelex from Director General, Public Affairs, Employment and Immigration Canada, to
Canada Immigration Centers, 20 February 1987.
121The Immigration Act, 1976, supra, note 27, s. 47(3) established the general rule that
Convention refugees were to be allowed to remain in Canada (prior to proposed amendments
in Bills C-55 and C-88, supra, note 28).
McGILL LAW JOURNAL
[Vol. 33
tries. 122 Because transportation companies are required to pay the detention
and removal costs of undocumented entrants they bring to Canada, airlines
were simply unwilling to board refugees unless they had a visa. 123 The
secondary role of the special measures programs, then, was to soften the
blow from the imposition of such a comprehensive visa requirement. 124
Most persons from the affected countries who were already in Canada and/
or their relatives were placated by the introduction of a program that vir-
tually guaranteed them admission, the validity of their claims to refugee
status notwithstanding. Potential public opposition to the visa requirement
was thereby reduced, the flow of new refugees into the inland determination
scheme was averted, and the government was able to limit its future reset-
tlement efforts on behalf of the affected group to such persons as could meet
the successful establishment criterion for sponsorship from abroad. 125
By 1987, the non-humanitarian imperative for the special measures
programs had disappeared. With the announcement of a proposed new ref-
ugee determination procedure clearly premised on the rapid screening out
of most claims, 126 there would be neither the necessity to divert cases from
the formal adjudicative process nor concern to defend the imposition of
impediments on access to inland refugee procedures. While the need to
afford protection to the nationals of countries in turmoil was as great as
ever, the domestic political rationale for special measures landings –
and
hence the programs themselves –
had ceased to exist.
12″Canada is buffered from large scale [refugee] flows by the United States and, to a lesser
extent, by Europe. What the government does to reinforce or counteract those buffers affects
how accessible Canada is to people who do no submit to selection abroad, or who are in such
circumstances that they cannot do so. The record of successive governments in imposing visa
requirements on sources of refugee claims emphasizes the policy choice. Since the current
Immigration Act, 1976 was passed, fifteen visa requirements have been levied, and eleven of
these were imposed in response to growing volumes of refugee claims….” (emphasis added).
R. Girard, supra, note 3 at 4. Visa requirements to stem the flow of refugee claimants have
been imposed against the following countries: Afghanistan, Bangladesh, Dominican Republic,
Egypt, El Salvador, Ghana, Guatamala, Gyana, India, Iran, Iraq, Jamaica, Lebanon, Pakistan,
People’s Republic of China, Portugal, Sri Lanka, Syria and Turkey. Immigration Regulation,
supra, note 29, as amended by SOR/84-21 1, SOR/85-1085, SOR/86-769, SOR/86-119, SOR/
87-115, SOR/87-393, SOR/87-573, SOR/87-585.
123See e.g. D. Matas, “Canada As A Country of First Asylum” (1984) 4:2 Refuge 22.
124″In the past, when visa requirements have been imposed to deal with flows of asylum
seekers … special immigration programs have been implemented in tandem to ensure that
those people who are in need and [who are] of immediate concern to Canada are assisted.
Among the eleven countries … for which visa requirements have been imposed, four [Chile,
El Salvador, Guatemala, Sri Lanka] have been coupled with such special programs.” R. Girard,
supra, note 3 at 6.
125lmmigration Manual, supra, note 59, s. I.S. 26.
126See text accompanying note 143, below.
19881
REFUGEE LAW IN CANADA
703,
VI. The Inland Refugee Status Determination System
Unlike the three procedures discussed thus far, the inland refugee de-
termination system is designed exclusively to identify and shelter refugees.
Persons who meet the Convention definition of a refugee are afforded pro-
tection from removal by Canada, 12 7 and in almost all cases are landed as
permanent residents. The 1987 refugee law reform would cement the pre-
viously informal linkage 28 between refugee status and asylum by providing
that immigration officers shall grant landing to persons determined to be
Convention refugees,12 9 unless they or their family members have com-
mitted serious crimes, or are judged to represent a threat to Canadian public
order or national security. 30 There would also be no need for inland refugees
to secure sponsorship or demonstrate employability, and there are no target
allotments that limit the rates of acceptance for claimants from different
regions of the world.
The number of successful inland claims to refugee status has tradi-
tionally been small in the context of the whole of the Canadian refugee
program. During the period 1982-1984, between 3400 and 5200 claims were
received each year.131 The rate of acceptance during this same period was
30%, resulting in the admission of an average of only about 900 Conventioin
refugees per year. 32 Moreover, the rate of success in the appeal of negative
refugee determinations has been minute: less than 5% of the applications
for redetermination have been decided in the refugee’s favor, resulting in
an additional 10 to 44 admissions per annum during 1981-1984.133 The total
inland intake of Convention refugees has thus averaged well below 1000
persons per year.
127″[N]o person who is finally determined under this Act, or determined under the regulations,
to be a Convention refugee… shall be removed from Canada to a country where the person’s
life or freedom would be threatened” unless the refugee is judged by the Minister to constitute
a danger to the public or security of Canada. Immigration Act, 1976, supra, note 27, s. 55.
128The Immigration Act, 1976, ibid. does not guarantee refugees the right to be landed as
permanent residents. S. 6 of the Immigration Act, 1976, supra, note 27, provides that any
immigrant, including a Convention refugee, could be granted landing if he or she is able to
meet the selection standards established by the Immigration Regulations, supra, note 29. While
landing does as a matter of practice follow a positive determination of refugee status, the
decision to admit a refugee as a permanent resident is within the discretion of the Minister.
129Immigration Act, 1976, s. 48.3(l)-(3) as it would be amended by Bill C-55, supra, note
28, s. 15.
130 bid. Quaere however whether the exclusion of “persons who there are reasonable grounds
to believe are or will be unable… to support themselves” is an appropriate limitation in the
context of refugee protection: Ibid., ss 48.3(3) and 19(l)(b).
1’3 Refugee Perspectives: 1985-1986, supra, note 53 at 39.
132Ibid. at 40.
133Employment and Immigration Canada, Immigration Appeal Board, Report of the Chair-
man 1981 (Hull, Que.: Supply and Services Canada, 1982), and similar reports for the years
1982-1984.
.704
REVUE DE DROIT DE McGILL
[Vol. 33
The humanitarian openness of the inland system has nonetheless
proved a source of significant tension. Because the process involves the
application of a definition that focuses on the protection of persecuted per-
sons, 134 the inland system does not readily allow for the interposition of
immigration-related concerns. Moreover, even though this process has ac-
counted for less than 5% of Canadian refugee admission, 135 there is keen
official awareness that inland refugee determination could permit the entry
of an undetermined number of persons. The combination of admission on
the basis of other than immigration-derived criteria, and the absence of
limits on the number of claims that can be recognized has led to significant
bureaucratic concern to restrain the potential of the inland determination
system.
This control has been achieved by limiting access to the inland refugee
determination system. The government has traditionally imposed selective
visa controls which prevent many refugees from coming to Canada in order
to present a claim for asylum. 36 Refugees who wish to seek protection in
Canada are ineligible for a visitor’s visa, and will thus be required by a
consulate or embassy abroad to seek entry via one of the immigration-based
refugee programs already discussed. 137 Insofar as the refugee cannot meet
the economic and other criteria of these programs, an entry visa will not
be issued. Thus, only persons from the decreasing number of countries
whose nationals do not require entry visas 138 will have ready access to the
inland determination system.
A new wave of control mechanisms was proposed in 1987, in response
to two factors. First, there had been an increase in the number of inland
134The definition of a “Convention refugee” in s. 1(2) of the Immigration Act, 1976, supra,
note 27 consists of the inclusive portion and exclusion clauses of the international refugee
definition established by the 1951 Convention on the Status of Refugees.
’35Refugee Perspectives: 1986-1987, supra, note 2 at 60.
136″Visa requirements often block an important escape route to Canada which may be the
most logical and accessible country ofrefuge for the claimant… in the absence ofany significant
immigration abuse, it is contrary to Canada’s humanitarian tradition to impose a visa require-
ment on a refugee-producing country. I can only conclude that if a visa requirement is so
imposed, the Department does not want to accept any refugees from that country.” M. Schelew,
“A Lawyer’s Perspective on Canadian Refugee Policy” (1984) 3(4) Refuge 11 at 14. See also
note 122, supra, where this perception is explicitly recognized as accurate by a senior depart-
mental official.
’37Refugee claimants may not obtain a visitor’s visa because they do not seek to come to
Canada “for a temporary purpose”: Immigration Act, 1976, supra, note 27, ss 2(1), 19(l)(h).
’38As of 20 February 1987, a comprehensive visa requirement is in effect for the nationals
of 98 countries, including such recognized refugee-producing states as Chile, the German Dem-
ocratic Republic, Kampuchea, Lebanon, South Africa, Sri Lanka, and Vietnam. The visa re-
quirement applies both to persons who wish to come to Canada, and to those who intend only
to transit in Canada en route to a third country. Telex from the Director General, Public Affairs
to all Canada Immigration Centers, 20 February 1987.
1988]
REFUGEE LAW IN CANADA
refugee claims from just 8400 in 1985, to 18000 in 1986, to a projected
25000 claims in 1987.139 Second, a significant number of the refugee claims
were manifestly unfounded, involving economic migrants from such coun-
tries as Portugal, Brazil, and Turkey.140 To respond to the dilemma of in-
creased caseload and a high proportion of abusive claims, two independent
studies of the determination process14′ and a standing committee of the
federal Parliament 142 recommended substantial streamlining of the cum-
bersome procedures. The backlog of cases and the abuse of the system were
seen to stem from an inordinately elaborate set of hearings, reviews, and
appeals, which frequently allowed even manifestly unfounded claimants to
live and work in Canada for several years while their claims were under
study.
The government, however, chose to introduce not only an expedited
determination system, but also to take extreme measures to foreclose access
to the procedures. In particular, the Minister of Immigration would be given
the power to interdict ships at sea, and to turn away vessels with undocu-
mented aliens aboard without inquiring into any claims to refugee status. 143
Refugees who manage to arrive in Canada may be excluded from the hearing
process and returned to any country judged by the federal Cabinet to be
“safe”, notwithstanding any fear of persecution the claimant may have.144
As well, claims involving persons from countries with generally good human
rights records and which have not produced significant numbers of refugees
139Employment and Immigration Canada, supra, note 37 at 8.
“40”The existing claims process has been overwhelmed by large inflows of persons who are
not genuine refugees in need of Canada’s protection.” Statement by the
economic migrants –
Hon. Benoit Bouchard, at Press Conference on Deterrents and Detention Bill, 11 August 1987.
141G. Plaut, Refugee Determination in Canada (Ottawa: Employment and Immigration Ca-
nada, 1985) (report to the Hon. E MacDonald, Minister of Employment and Immigration).
142The Standing Committee on Labour, Employment and Immigration of the House of
Commons prepared a study of the recommendations contained in the report of Rabbi Gunther
Plaut, supra, note 141: Canada, House of Commons, Minutes of Proceedings and Evidence of
the Standing Committee on Labour, Employment and Immigration, No. 46 (1984-85). The
Committee’s recommendations, while not entirely consistent with those of the Plaut Report,
nonetheless included major, largely progressive reforms to the inland refugee determination
system.
143″Where the Minister believes on reasonable grounds that a vehicle..,
is bringing any
person into Canada in contravention of this Act or the regulations, the Minister may, after
having due regard to the safety of the vehicle and its passengers, direct the vehicle to leave or
not to enter the internal waters of Canada… and any such order may be enforced by such
force as is reasonable in the circumstances”: Immigration Act, 1976, supra, note 27, s. 91.1(1)
as it would be amended by Bill C-84, supra, note 28, s. 8.
144″A person who claims to be a Convention refugee is not eligible to have the claim deter-
mined by the Refugee Division if… the claimant came to Canada from a country that has
been prescribed as a safe third country. . .”: Immigration Act, 1976, supra, note 27, s. 48. l(1)(b),
as it would be amended by BiIIC-55, supra, note 28, s. 15.
McGILL LAW JOURNAL
[Vol. 33
in the past would be summarily rejected, with no possibility of review before
deportation. 145 These changes have been universally condemned by inde-
pendent experts as infringements of the fundamental duty to protect aginst
refoulement,146 of the procedural standards established by the Executive
Committee of the UNHCR, 147 and indeed of Canada’s own constitutional
guarantee of fundamental justice in legal proceedings.148
The erection of barriers to access is consistent with Canada’s desire not
to act as a country of first asylum. The government wished to provide no
encouragement to refugees to seek asylum in Canada, but felt compelled to
maintain an inland determination system so as to appear to comply with
its international obligation not to return a refugee to his or her country of
origin. 149 The compromise was thus the proposal to establish a refugee
determination system that is selectively open and closely controlled.’ 50
Insofar as a refugee does succeed in securing access to the refugee de-
termination procedure, he or she would be entitled to an oral hearing before
145S. 48.1(2) of the Immigration Act would be amended to require the demonstration of a
“credible basis” for a claim to refugee status as a prerequisite to entry into the refugee deter-
mination process. S. 48.1(4) would provide that “[i]n determining whether a claimant has a
credible basis for the claim to be a Convention refugee” account shall be taken of “the record
with respect to human rights of the country that the claimant left” and “the disposition …
of claims to be Convention refugees made by other persons who alleged fear of persectuion in
that country”: Immigration Act, 1976, supra, note 27, ss 48.1(2) and 48.1(4), as it would be
amended by Bill C-55, ibid.
146″The problem with [the new legislation] is that it effectively guts this most basic inter-
national obligation by allowing the minister, acting alone, to decide that a ship should be forced
back to sea without giving those on board a chance to show why they deserve protection….
[It] would make it impossible to sort out the real refugees from the bogus ones, and thus would
put Canada in breach of international law.” W. Angus & J. Hathaway, “Ominous Overkill in
Ottawa’s Refugee Bill” The [Toronto] Globe and Mail (25 August 1987) A7.
147″[Tjhe manifestly unfounded or abusive character of an application should be established
by the authority normally competent to determine refugee status; an unsuccessful applicant
should be enabled to have a negative decision reviewed before rejection at the frontier or
forcible removal from the territory”: EC UNHCR Res. 30 (XXXIV), paras (e)(ii) and (iii)(1983).
148Professor David Beatty noted in particular the absence of a right of appeal and procedure
for cross-examination in the new screening procedures, and concluded that “[i]n the end, much
of this bill (C-84) will be gutted by the courts. It’s hard for me to identify a bill more consti-
tutionally flawed”. D. Downey, “Panel of lawyers skeptical refugee bill can last in court”, The
[Toronto] Globe and Mail (18 August 1987) A3.
149″In formulating [the new refugee status determination] proposals, we have been mindful
of our international legal and moral obligations as a signatory to the United Nations con-
vention. .. “: Canada, House of Commons, Debates, vol. 9 at 13483 (21 May 1986) (Minister
of State for Immigration Canada).
150″Refugee determination is a complex and often emotional issue. The question of abuse
and how to eliminate it is crucial to preserving Canada’s humanitarian reputation and our
tradition for law and order.” Minister of Employment and Immigration, “Speaking Notes for
Legislative Committee on Bill C-84”, 25 August 1987 (emphasis added).
19881
REFUGEE LAW IN CANADA
two members of the Refugee Division of the newly established Immigration
and Refugee Board. 51 In contrast to the international standard that rec-
ognizes that “the duty to ascertain and evaluate all the relevant facts is
shared between the applicant and the examiner”, 152 the examination would
be conducted in a formal adversarial style. 153 Only one of the two members
of the Division would be required to rule in the claimant’s favor for the
case to succeed, 54 however, thus ensuring that the benefit of the doubt goes
to the refugee claimant.
Under the Bills, rejected claimants who wish to contest the decision of
the Refugee Division would be afforded no right of appeal or reconsider-
ation, and must seek leave to apply for judicial review by the Federal
Court.155 The obligation to seek leave to apply for judicial review “is un-
precedented in the whole of the common law”, 56 and appears to conflict
with the conclusion of the UNHCR Executive Committee that applicants
“should be given a reasonable time to appeal for a formal reconsideration
of the decision.”‘ 157
The advent of a new determination procedure was effectively mandated
by the 1985 decision of the Supreme Court of Canada in the case of Re
Singh and the Minister of Employment and Immigration.158 In that case,
the Court held that the prevailing refugee determination system was un-
constitutional in that it failed to afford claimants the right to an oral hearing
before the decision-maker. 159 While the new determination system would
151 lmmigration Act, 1976, supra, note 27, ss 59, 71f. The adversarial style would be per-
152United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria
petuated by Bill C-55, supra, note 28.
for Determining Refugee Status 47 (Washington: U.N.H.C.R., 1979).
supra, note 28, s. 19.
153Immigration Act, 1976, supra, note 27, s. 71.1(5), as it would be amended by Bill C-55,
154Immigration Act, 1976, ibid., s. 71.1(10), as it would be amended by Bill C-55, ibid.
155Immigration Act, 1976, supra, ibid., s. 83.1, as it would be amended by Bill C-55, supra,
note 28, s. 20.
156W. Angus, “Submission to the Special House of Commons Committee on Bill C-55” 4
September 1987.
157EC UNHCR Res. 8 (XXVIII), para. (e)(vi) (1977).
158[1985] I S.C.R 177, 17 D.L.R. (4th) 422, 58 N.R. 1, 12 Admin. L.R. 137.
159Under the refugee determination procedure originally established by the Immigration Act,
1976, supra, note 27, a refugee claimant has the right to an examination under oath concerning
the facts of his or her claim. The transcript of this examination is studied by the Refugee Status
Advisory Committee, which ultimately makes a recommendation to the Minister of Employ-
ment and Immigration regarding the merits of each case. Those persons who are determined
not to be Convention refugees can seek a redetermination of their claim before the Immigration
Appeal Board, and can further seek judicial review from the Federal Court of Appeal in ap-
propriate cases. This system gives rise to three major complaints. First, the process has failed
to meet Canadian standards of procedural fairness in that it has not provided refugee claimants
with an oral hearing before the adjudicating authority. Second, those called upon to render
REVUE DE DROIT DE McGILL
[Vol. 33
include a hearing process, it is generally agreed that its severe limitations
on access and appeal offend other aspects of the constitutional guarantee to
fundamental justice. 160 The stubborn refusal of immigration authorities to
recognize the legal limitations on their ambition to constrain the operation
of the refugee claim process is thus likely to result in a second series of
judicial challenges to the determination system.
VII. The Substantive Application of the Refugee Definition
It should again be emphasized that the majority of persons admitted
to Canada as refugees do not meet the Convention definition. Most of those
selected overseas are persons in refugee-like situations, who fall within the
definition of one of the three designated classes. 161 Similarly, most inland
refugee admissions have been made pursuant to special measures pro-
grams, 162 the scope of which is established by specific regulatory definitions.
As such, the interpretation of the Convention definition is of direct relevance
to only a minority of both overseas and domestic claimants.
A reasonable extensive jurisprudence dealing with the issue of refugee
definition has been developed in Canada by the Immigration Appeal
Board 163 and the Federal Court. While there are many inconsistencies among
the decisions, this case law has generally reinforced a restrictive approach
to the implementation of Canada’s international obligations to refugees by
narrowly delimiting the key concept of “persecution”, so as to exclude all
but the most clearly deserving of refugee claimants. A comprehensive ex-
amination of all aspects of the definitional jurisprudence is beyond the scope
of this paper, but several prominent lines of reasoning can be seen to illus-
trate this protectionist trend.
decisions have largely inadequate expertise effectively and independently to apply the defini-
tional criteria adopted from international law. Third, the delay of up to five years occasioned
by the complex process has given rise to hardships for genuine refugees, and encouraged claims
by non-refugees as a means of forestalling their removal from Canada.
1’6 “Court challenges under the Charter of Rights and Freedoms and on other legal grounds
will bring the operation of the… refugee determination procedures, if legislated, to a virtual
standstill. Many provisions of [the legislation] will be struck down, and properly so, by the
Charter”: Angus, supra, note 156. This view is supported by other experts: see e.g. Downey,
supra, note 148.
161See above, Section B of Part III.
162See above, Part V.
163The Immigration Appeal Board has acted as the primary appellate body for refugee cases
since 1973. This would be altered by Bills C-55 and C-84. See note 159, supra.
19881
REFUGEE LAW IN CANADA
A. The Requisite Gravity of Harm
Although in theory it is sufficient for the refugee claimant to demon-
strate that he or she has “good reasons for fearing persecution”, 164 the most
persuasive evidence of a well-founded fear of persecution has consistently
been held to be proof that the applicant has in fact suffered persecution in
the past.165 The essence of persecution is seen to be “harassment that is so
constant and unrelenting that the victims feel deprived of all hope of re-
course, short of flight, from government repression.”‘ 166
When will it be held that the applicant has been subjected to this kind
of constant and unrelenting harassment? The threshold is evidently very
high. Physical maltreatment has been held not to be a necessary condition, 67
but it seems clear that qualifying acts that fall short of physical abuse are
rare. For example, persecution has been hald to imly more than a series of
arrests accompanied by short detentions; 168 it is more than the politically
inspired confiscation of one’s essential business assets; 169 and it is more than
the discriminatory denial of employment opportunities. 170 In some cases
even evidence of prolonged incarceration, 171 or of actual physical
maltreatment 172 has been adjudged insufficient evidence of past persecution.
While the evidentiary requirement to establish persecution thus appears to
be quite demanding, it is unfortunately not susceptible of delineation with
any reasonable degree of certainty.
Where a prima facie case of past persecution is established, Canadian
tribunals have also demonstrated an apparent willingness to seek out a
justification for the acts complained of. In particular, an otherwise perse-
cutory act may be dismissed if it can be characterized as necessary for the
1212.
164Re Seifu and Minister of Employment and Immigration (12 January 1983), EC.A. 81-
165″[S]ince it is the foundation for a present fear that must be considered, such incidents in
the past are part of the whole picture and cannot be discarded entirely as a basis for fear, even
though what has happened since has left them in the background.” Oyarzo v. M.E.L. (1981),
[1982] 2 EC. 779 at 781.
166Maribel (6 January 1983), I.A.B. 81-1212.
167Amayo v. ME.L (1981), [1982] 1 EC. 520.
168Singh (5 July 1983), I.A.B. 83-9595.
169Singh (5 April 1983), I.A.B. 83-1437.
17OJakuboski (4 October 1979) I.A.B. 79-6197; Ficciella (13 December 1979) (I.A.B. 79-1222.
The issue of persecution is discussed in detail below in Section D of Part VII.
1’7 Aydogu (25 January 1983), I.A.B. 83-1016.
172Bilen (18 February 1983), I.A.B. 83-1015.
McGILL LAW JOURNAL
[Vol. 33
maintenance of law and order,173 or as the result of police incompetence. 174
There is also a disturbing propensity to judge the wrongfulness of the be-
havior alleged on the basis of prevailing norms in the country of origin, 175
rather than in relation to a more objective standard of fairness. In the view
of the Immigration Appeal Board, “it is not [the Board’s] business to impose
democratic standards on a country that has little or no democratic tradi-
tion.” 176 This of course misses the point entirely. The objective of refugee
determination should not be the castigation of the offending state, but rather
the protection of the victims of harassment countenanced by the state. While
there are clearly political sensitivities at risk, it is wholly inappropriate to
engage in a process of rationalizing persecution away in view of the con-
comitant risk of failing effectively to protect a refugee.
B. An Individualized Fear of Persecution
The Canadian case law is insistent that an applicant for refugee status
be the subject of particularized past or prospective persecution. 177 The ap-
plicant must demonstrate that he or she fears a degree of harm which is
greater than that faced by similarly situated persons in the country of ori-
gin.178 Thus, for example, where a claimant was one of several persons who
were arrested and beaten by the police subsequent to participation in a
political demonstration, he was held not to be a refugee because he “was
not singled out for persecution by the arresting authorities.”” 79 This notion
has also been used to dismiss claims grounded on a pattern of generalized
persecution against a particular societal subgroup.180 The Immigration Ap-
peal Board held that where the claimant demonstrated a pattern of violence
against his race, his fear was of the “general situation”, not of persecution.’ 8 ‘
It has even been held that “drastic discrimination” with a direct impact on
the applicant is not tantamount to persecution.18 2
1731n one case in which substantial evidence of the torture of a Chilean was presented, the
Immigration Appeal Board dismissed the claim and noted that “in the atmosphere existing at
the time, it is reasonable to expect authorities to exercise control over dissidents on these
national political anniversaries.” Contreras-Guttierez (16 March 1981), I.A.B. 80-6220.
74Vettivelu (19 October 1984), I.A.B. 84-1196; Kazi (11 September 1984), I.A.B. 84-1146.
1
175Chahal (7 November 1984), I.A.B. 84-1244.
176Paez Henrique (30 January 1981), I.A.B. 81-9289.
177Jairaj (12 December 1983), I.A.B. 83-6706; Ghaswala (11 January 1984) I.A.B. 83-9483.
118Chahal, supra, note 175.
179Zamadar (11 January 1984), I.A.B. 83-10572; Singh (3 October 1984), I.A.B. 84-9500.
180Singh (30 August 1984), I.A.B. 84-9371.
181Vijayakumar (4 October 1984), I.A.B. 84-1407.
182Ramsarran (13 July 1983), I.A.B. 83-9371.
1988]
REFUGEE LAW IN CANADA
C. Persecution or Prosecution?
In addition to the establishment of a high threshold for persecution,
and the requirement that the claimant show an individualized fear, a third
judicial limitation on the .scope of the Convention definition stems from
the failure to make an adequate distinction between punishment for a crime
and persecution. While it is true that penal prosecution in respect of a
common crime does not constitue persecution, 8 3 Canadian courts have
failed to differentiate between a political “crime” and an ordinary, non-
political crime. As a result, persons who have been persecuted under the
guise of criminal sanctions have been denied protection by Canada.
For example, it has been held that where there is a law that prohibits
public assembly, persons who are punished for participation in a political
demonstration have not been persecuted. 84 Rather, they have merely been
punished for breaking the law. A person who is arrested for failure to comply
with a prohibition on political activity has not been persecuted, but is rather
guilty of having failed to abide by a police order.185 The Immigration Appeal
Board has also relied on illegality to deny refugee status to persons who
distributed pamphlets and posters, 86 who smuggled political opponents of
the government out of the country, 187 and who participated in the formation
of a union.188 This preparedness of the courts to assume the accuracy of
the state of origin’s characterization of an act as criminal, and hence to
excuse the ensuing prosecution and punishment, is both simplistic and sub-
stantively wrong. As was pointed out in a dissenting opinion of the Im-
migration Appeal Board,
Were union activities illegal as my colleague says? Of course they were, but
we are not asked to judge legality and illegality in Chile. 8 9
D. Economic Proscription
Canadian refugee law has demonstrated a consistent concern to ensure
that the refugee determination process not become a vehicle for the ad-
mission to Canada of persons who wish only to better their economic cir-
183While most genuine criminal prosecutions do not give rise to a well-founded fear of
persecution, “[T]his interpretive principle is not absolute, and where it is shown that criminal
prosecution… was used as a form of selective punishment by a State based on the claimant’s
race, social group, nationality, religion or political opinion, a successful claim might be estab-
lished on this basis”: C. Wydrzynski, Canadian Immigration Law and Procedure (Aurora, Ont.:
Canada Law Book, 1983) at 323.
184Gi1 (28 February 1983), I.A.B. 83-6087; Kabir (11 February 1985), I.A.B. 84-1299.
185Shajahan (2 May 1984), I.A.B. 84-1140.
186Farwaha (7 September 1983), I.A.B. 83-1086.
187Adjei (13 October 1981), I.A.B. 81-9446.
1″8 Rubi-Cabera (2 September 1981), I.A.B. 81-6296.
189Contreras-Guttierez (16 March 1981), I.A.B. 80-6220.
REVUE DE DROIT DE McGILL
[Vol. 33
cumstances. 190 While it is right to reserve the special benefits of refugee
status for those whose migration is prompted by a fear of persecution, this
preoccupation to deter the claims of would-be economic migrants has led
to two kinds of problems. First, the Immigration Appeal Board has fre-
quently failed to distinguish between the cases of economic migrants and
those of persons who fear persecution by way of economic proscription.191
It has become increasingly common for states to engage in acts of perse-
cution via the systematic denial of economic opportunities. The victims of
these regimes find themselves substantially deprived of the ability to earn
a livelihood, or at least so constrained that their opportunities for employ-
ment are in no sense commensurate with their training and qualifications. 192
Where the state acts directly or indirectly to punish an individual or group
by economic means, that act may constitute persecution, economic pros-
cription, like torture and imprisonment, may be effectively employed as a
vehicle of coercion or abuse.
The importance of distinguishing between economic migrants and the
victims of economic proscription was clearly recognized in the cornerstone
case of Diaz-Fuentes. 193 In particular, the Immigration Appeal Board warned
of the need to examine “whether behind apparent personal and economic
motives there exists a fear of persecution…. ‘ 194 Subsequent jurisprudence
has unfortunately failed consistently to heed this caution. For example, it
has been held that a systematic denial of employment opportunities because
of a failure to join the ruling party was not evidence of persecution, but
was rather mere discrimination. 195 Similarly, dismissal on the ground of
political opinion has been termed an exercise of “party patronage”, 96 and
systematized barriers to employment based on race have been viewed as
discrimination falling short of persecution. 197 These decisions exhibit an
9′”Through this proposed system my Government is continuing to do what it always in-
tended to do, that is, to help those who genuinely need protection and discourage those who
seek to use the system for purely economic reasons”: Minister of State for Immigration, supra,
note 149 at 4.
191This issue is examined in detail in J.C. Hathaway & M.S. Schelew, “Persecution by Eco-
nomic Proscription: A New Refugee Dilemma” (1980) 28 Chitty’s L.J. 190.
192Among those countries which have engaged in persecution by economic proscription are
the Soviet Union, a variety of Eastern European states, South Africa, Indonesia, Chile and
Uruguay, ibid. at 190.
193(1974), [1975] 9 I.A.B. 323.
194Ibid. at 343, per Vice-Chairman Houle.
195″It is clear from the definition of the words [discrimination and persecution] that dis-
crimination is not persecution and so does not make one a refugee.. ..” Jakuboski, supra, note
170.
196Ficciella, supra, note 170.
197Eden (22 August 1984), I.A.B. 84-9370.
19881
REFUGEE LAW IN CANADA
unduly superficial view of persecution, and have resulted in the denial of
legitimate claims to refugee status.
A second type of difficulty arises from the willingness of the Board to
dismiss claims of economic proscription where it is difficult to distinguish
with precision between the impact of the persecutory acts of the state and
the effects of a generally depressed economy. Particularly in the case of
refugees from developing countries, the inability to obtain employment may
be the combined result of a general scarcity of work and the efforts of the
government or its agent to ensure that whatever minimal opportunities may
exist are denied to the refugee. In such circumstances, it is inappropriate
to dismiss the claim, as the refugee has still been effectively punished by
the state. The fact that initial opportunities were limited is not pertinent to
the issue of whether the claimant has been disadvantaged beyond the norm
as a result of the government’s persecutory acts.
In contrast, the Immigration Appeal Board has regularly refused such
claims. For example, in the case of Vera the Board did not “find it credible
that the sole barrier to employment for [the claimant] was his political in-
volvement. High unemployment and his lack of work experience are major
‘198
factors that cannot be discounted as reasons for his lack of success…
(emphasis added). In the decision of Arshad, the claim was dismissed be-
cause “[tlhe difficulty in finding work, in this particular case, may be at-
tributable just as much to the economic situation in India as to
discrimination by the party in power”‘199 (emphasis added). It should be
noted that these decisions do not deny that state action was exerted to
foreclose employment opportunities, but chose instead to avoid the issue
entirely on the ground that conditions would have been difficult even absent
governmental interference. Such an analysis misses the central issue of
whether or not persecution occurred, and results in discrimination against
claimants from economically depressed countries. This is clear from the
judgment in the case of Mangra:
In a country with known economic problems and high unemployment, [the
claimant’s] job changes, eventual dismissal and inability to find further em-
ployment cannot be seen as persecution… 2
00
On the basis of such confused reasoning, none of the victims of economic
persecution from the Third World are likely to be determined to be refugees
in Canada. It is thus critical that a clear distinction be drawn between those
who seek merely to improve their lot in life, and those who have been
198Vera (12 November 1981), I.A.B. 81-9344.
199Arshad (18 September 1981), I.A.B. 81-9474.
200Mangra (5 November 1982), I.A.B. 82-9448.
McGILL LAW JOURNAL
[Vol. 33
specifically targeted for a denial of economic opportunities, whatever the
prevailing situation in the country of origin as a whole.
VIII. Conclusions
To what extent has Canadian refugee law progressed beyond the stage
of seeking out “stout, hardy peasants in sheepskin coats”?201
To be sure, Canada has recognized the need to assist its political allies
in the resettlement of persons for whom the alliance bears some collective
responsibility. Canada’s past willingness to take responsibility for large num-
bers of asylum seekers with whom there existed an ideological or political
bond, 202 and the continuing political emphasis in both the establishment of
regional admission targets203 and the definition of its designated class neo-
refugee programs 20 4 are demonstrative of Canada’s commitment to the pro-
motion of solidarity among Western states in sharing the burden of refugee
resettlement.
Moreover, Canada is sincerely committed to the advancement of in-
ternational human rights law under the auspices of the United Nations, and
will continue to assist in meeting the need to resettle persons from through-
out the world who face persecution and serious strife in their states of origin.
The establishment of a formal system for the protection of Convention
refugees, 205 the willingness to seek out refugees and others in distress abroad
for resettlement in Canada,206 and Canada’s consistent and active partici-
pation in the work of the United Nations High Commissioner for
Refugees 207 bear testimony to the seriousness accorded to this internation-
alist pledge.
These commitments notwithstanding, Canada has constructed a refugee
law that is fundamentally premised on the need to safeguard and advance
its own domestic well-being. In every facet of its overseas refugee resettle-
ment programs, Canada has institutionalized screening processes that ef-
201Axworthy, supra, note 4, quoting the Hon. Clifford Sifton, Canadian Minister responsible
for immigration, 1896-1905.
202See above, text accompanying notes 9-19.
203See above, text accompanying notes 46-54.
204See above, text accompanying notes 90-95.
205See above, text accompanying notes 20-21, and part VI.
206See above, Part III.
207″Cash contributions [to refugee relief] from External Affairs and the Canadian Interna-
tional Development Agency to international humanitarian agencies, including the Red Cross
and the UN High Commissioner for Refugees, exceeded $50 million in 1986/87. Food aid to
countries for assistance to refugees [was of a] total value exceeding $16 million in 1986/87″.
Minister of Employment and Immigration, “Press Release on Deterrents and Detention Bill”,
Part F (11 August 1987) [unpublished].
19881
REFUGEE LAW IN CANADA
fectively ensure the acceptability and productivity of the refugees it receives.
Refugees must either be privately sponsored and hence the charge of par-
ticular members of the Canadian public, 208 or they must show that they
possess an adequate mix of skills, formal preparation, and aptitutdes so as
to permit them to become self-sufficient and contributing members of
society.209
The protectionist concerns extend with even more vigor to the inland
refugee determination process, a window of vulnerability in the view of
many because it does not permit the specific assessment of a claimant’s
economic or other suitability for resettlement in Canada. The policy re-
sponse has been not only to limit access to the refugee determination sys-
tem, 210 but moreover to apply the Convention definition rigorously as to
limit deviations from immigration policy to those situations where inter-
national law compels a relaxation of Canadian domestic and political
priorities. 211
While Canada is a country of first asylum and a land of refugee reset-
tlement, and while both its allies and the general world community recognize
the extent of its continuing contribution to refugee burden-sharing, Canada’s
response to the needs of refugees has been significantly constrained to accord
with a narrowly construed sense of its own national interests.
208See above, Part IV generally, and notes 109-10 specifically.
209See above, text accompanying notes 67-68 and 88-89.
21See above, text accompanying note 136-37.
21’See above, Part VII.
