Canada’s Reformed Refugee System Plays Russian Roulette with the Lives of Claimants
The federal Designated Countries of Origin (DCO) program places refugees fleeing gender-based violence at an increased risk of persecution, and perhaps death. By categorically identifying certain countries as “safe” without engaging in a contextual analysis of how such countries treat all citizens, the DCO program obscures the persecution experienced by battered women, queer folks and trans people within these nations. The harrowing result will likely be that sexual and gender minorities from DCO countries will be denied status and sent back to confront violence, cruel and usual punishment and possibly, death.
The DCO structure was implemented by the Conservative government in December 2012. To date, the program has inducted 35 countries, mostly nations from the European Union in addition to the United States and Mexico. The Harper government introduced the program as part of a larger legislative scheme designed to reduce “bogus” refugee claims.
Admittedly, there are illegitimate claims made by refugees in Canada. Also, it is understandable that the federal government would want to implement a legislative scheme to weed out dishonest claims. The use of indiscriminate mechanisms to identify who is a “legitimate” refugee however is like playing Russian roulette with the lives of claimants: the system may be successful in excising some fraudulent claims, but it may also send a claimant back to their persecutor.
Of particular concern is the exclusive power given to the Minister of Citizenship and Immigration (“Minister”) to ascertain which countries should be given DCO status. Under the reformed Immigration and Refugee Protection Act, the Minister is empowered to designate a nation as “safe” without consulting with human rights experts. Instead, the federal government has communicated that Minister Jason Kenney can unilaterally make this decision in one of two ways. He can either use general benchmarks relating to the rate of acceptance from a given nation or he can conclude that a country is “safe” based on his opinion of its human rights and democratic record.
The flaw with both approaches is that they ignore the possibility that a country may demonstrate a low acceptance rate and/or have democratic laws, but still fail to provide adequate protection for all of their citizens. Consider Mexico, a democratic nation on the DCO list, which has made strides in recognizing the legal rights of the queer community including legalizing same-sex marriages in 2009. However, Inter Pres Service notes that there is still a "culture of homophobia within the Federal District government apparatus."
This climate of homophobia is reflected in society and serves to endanger the safety and lives of sexual minorities. The US Country Reports on Human Rights Practices 2011 reports that the organizer of Mexico City’s LGBT Pride Parade who was also a member of the Revolutionary Democratic Party's Coordinating Group for Sexual Diversity was stabbed to death in Mexico City. Furthermore, a federal human rights commission in Mexico counted 57 human rights violations from sexual minorities from January 2011 to July 2012. Based on this research, Mexico’s status as a “safe” country for sexual minorities is certainly questionable.
The procedural consequences of this legislative reform are also causing practitioners and community workers tremendous concern. All persons who claim refugee status at the port-of-entry now have 15 days to submit required and supporting documentation instead of 28. Moreover, Claimants from DCO nations now have 30 days to prepare before their hearing if they make a claim at an immigration office and 45 if they claim at port-of-entry compared to 90 days under the old system.
It is true that assembling the documentation and oral testimony of refugee claimants
is difficult under most time frames. The timelines for claimants from DCO countries though, is impractical and bordering on unconscionable. Specifically, the time frames do not allow claimants to sufficient time to exercise their right to counsel. This reality may be exacerbated if Legal Aid Ontario’s proposal to cut free legal representation at Immigration and Refugee Board (IRB) hearings for DCO claimants is accepted by the Ontario government.
However, even if a claimant is able to retain a lawyer, under the new timelines lawyers do not have enough time to build the trust required to extract relevant evidence from a traumatized claimant. A Vancouver-based refugee law practitioner has said the following about how the issue of trust is likely to be affected under the expedited refugee system:
No matter how friendly or well-trained officials from the IRB are in asking questions of claimants, trust is something that takes time to build. I have never been able to get an accurate picture of the narrative of a refugee claim in one sitting with a claimant. This is particularly the case with women who have experienced violence. In many cases that I have worked on I only learn about some of the most horrific acts of violence in my third or fourth time speaking to the claimant...
A hopeful repercussion of the erosion of the procedural rights of claimants from DCO nations is that it has inspired a generation of law students like me to politically engage with the legal issues affecting refugees. Learning from fierce refugee law advocates like Professor Showler at the University of Ottawa, we are sure to make a rebellious and progressive difference in the realm of refugee law.
* A recent graduate of the Faculty of Law, University of Ottawa.
Immigration and Refugee Protection Act (IRPA), RSC 2001, c 27 (as amended) s 102.
Daniela Pastrana, "Mexico: Institutionalised Homophobia Encourages Hate Crimes" Inter Pres Service (12 April 2012) online: Ref World <http://www.refworld.org/cgi-bin/texis/vtx/rwmain?page=search&docid=50753f172&skip=0&query=LGBT&coi=MEX>.
US, Department of State, Mexico: Country Reports on Human Rights Practices for 2011: Mexico (24 May 2012) online: US Department of State <http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/#wrapper>.
Immigration and Refugee Board of Canada, Mexico: Situation of sexual minorities in Mexico City, Guadalajara (Jalisco) and Puerto Vallarta (Jalisco); whether there are support or advocacy groups acting on their behalf (2009 - August 2012), 17 September 2012, MEX104173.E, online: http://www.refworld.org/docid/50753f172.html.
IRPA (as amended) s 159.9(1)(a).
Lobat Sadrehashemi, “Gender Persecution and Refugee Law in Canada: In Response to the Balanced Refugee Reform Act (Bill C-11)” (April 2011) online: Battered Women’s Support Services http://www.bwss.org/wp-content/uploads/2011/04/GENDER-PERSECUTION-and-REFUGEE-LAW-REFORM-IN-CANADA_2.pdf.