The arrival off the coast of Vancouver of a ship calling itself the “Ocean Lady” has prompted much public debate around the issues of illegal migration, human smuggling and the refugee determination process. On Wednesday October 28, 2009 the Liu Institute for Global issues at the University of British Columbia welcomed experts from both Canada and Australia to discuss the law and policy surrounding these issues. The event was co-sponsored by the Liu Institute for Global issues, the Canadian Bar Association Branch (International and Immigration Law Subsections) and the Metropolis BC Center of Excellence for Research on Immigration and Diversity’s Justice, Policing and Security domain.
Dr. Andreas Schloenhardt is an Associate Professor at The University of Queensland TC Beirne School of Law, Australia. He has advised the Government of Australia on migrant smuggling issues which have recently been the focus of fierce political debate in Australia. He is currently a visiting professor at the Liu Institute for Global Issues.
Dr. Schloenhardt reminded us that this is not a problem that is unique to Canada; since 2008 there have been several dozen boats arriving off the northern and western coasts of Australia. Most of the migrants come from war torn areas such as Afghanistan and Sri Lanka. Most follow familiar patterns; they are overt arrivals and do not try to conceal themselves in any way. Once apprehended the migrants are placed in mandatory detention, during which time officials seek to determine if the individuals qualify as refugees, as defined by the UN Convention Relating to the Status of Refugees, and if they pose any security risks. This process takes about 4-8 weeks, after which time qualified refugees are released into the community with a visa. On average about 80% of asylum seekers who arrive in Australia by boat are granted protection visas,. After release the Government of Australia invests significant resources in integrating these refugees into the community, assisting with housing and helping them to find work.
Under the previous Conservative Government’s “Pacific Solution” system immigration detention was carried out outside of Australia, and only temporary protection visas were issued. In 2008 the new Labour Government abolished this policy and softened its stand on refugees, closing the offshore detention facilities, although the main processing facility on Christmas Islands remains, and replacing the temporary visas with permanent protection. Opposition party members argue that this softened stance on asylum seekers has created an incentive for asylum seekers to arrive in Australia by boat and then seek protection. Dr. Schloenhardt reminded us that this is not an easy problem and there is no easy solution. Any solution needs to address not only the needs for the present, but the needs for the future as well.
Mr. Daniel McLeod is currently a lawyer with Preston Clark McLeod. He is an alumni of the UBC Faculty of Law and has practised immigration and refugee law in Vancouver for over 21 years. Mr. McLeod serves as duty counsel at the Fraser Regional Correctional Centre where the 76 migrants from the Ocean Lady are currently being detained.
Mr. McLeod reminded us that Canada is a nation built out of refugees; Canada’s first settlers arrived by boat from other nations. In 1776 the United Empire Loyalists from the United States were Canada’s first refugees. Then, in 1939 Canada and the US turned away a boat carrying 900 Jewish refugees from Nazi Germany, who were then forced to return to Germany. Over a third of those refugees later died in concentration camps.
As a direct result of the holocaust the UN Convention Relating to the Status of Refugees, to which Canada is a signatory, was enacted. This convention guarantees refugees the right to make a claim for asylum. The convention defines a refugee as a person who has “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. Despite its rocky beginnings Canada is now a leader in refugee recognition and protection.
Mr. McLeod was able to provide perspective on the needs of the migrants on board the “Ocean Lady”, and their reasons for fleeing their home nation of Sri Lanka. Most come from the Tamil minority in the north of Sri Lanka. Since 1983 Tamil rebels, under the Liberation Tamil Tigers, and the Sri Lankan government have been involved in a bloody civil war which ended in 2009 with the murder of the entire leadership of the Tamil Tigers. However, problems still remain for the Tamil minority, with paramilitaries engaging in kidnapping, torture and extortion. A state of emergency is still in place and the Sri Lankan army is still active and actually increasing in size, despite the defeat of the Tamil Tiger rebels. Many Tamils are held in detention camps until it can be determined if they have a connection to the defeated rebel group. Mr. McLeod reminded us that most Tamils were not part of the rebel militia, and that the young Tamil men being persecuted in Sri Lanka are students, farmers, office workers just like us. The majority of the migrants aboard the “Ocean Lady” were these young Tamil men.
Mr. McLeod emphasised that size of the refugee problem stating that there are sixteen million refugees in the world and a further twenty-six million internally displaced people.
Professor Benjamin Perrin concluded the event with three recommendations to improve Canada’s response to the complex and inter-related challenges surrounding the illegal migration issue. Professor Perrin is a professor at the UBC Faculty of Law as well as a Faculty Fellow for the Liu Institute for Global Issues. He is a domain leader for Metropolis BC’s Justice, Policing and Security research domain and prior to joining UBC he served as a senior policy advisor to the Minister of Citizenship and Immigration.
Professor Perrin emphasised the need for Canada to take greater action to discourage illegal migration and disrupt migrant smuggling operations. Migrant smuggling is a dangerous, exploitive operation. Migrant smugglers charge exorbitant fees for dangerous journeys that can take months or years and are sometimes fatal. He called for Canadian authorities to “vigorously pursue investigations into the individuals behind migrant-smuggling operations – not those merely manning the vessels, but also the contractors, owners and collaborators in other countries”. This would mean increased international cooperation, a framework for which is set out in the UN Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention Against Transnational Organized Crime.
Professor Perrin also called for a more efficient refugee-determination process and an expedient follow-up to failed claims. As noted by the UN High Commission for Refugees “If the asylum system is both fast and fair, then people who know they are not refugees have little incentive to make a claim in the first place”1. Canada, being the third largest recipient of asylum applications among industrialised countries, is overwhelmed by asylum requests. As of the end of 2008 there were 54,200 pending cases. Professor Perrin noted a recent report by Professor Schowler, the Director of the Refugee Forum at the University of Ottawa and the former Chairperson of the Immigration and Refugee Board of Canada, entitled Fast, Fair and Final: Reforming Canada’s Refugee System.
Professor Perrin’s third recommendation focused on the need for a pro-active response to the global refugee situation. The US, Australia and Canada are active in resettling thousands of refugees every year but most other countries are far behind and need to be called upon to play a greater role in addressing this problem. Additionally, the international community needs to develop more appropriate and timely responses to the problems facing internally displaced persons, as the number of internally displaced persons in the world continues to climb steadily and has surpassed the number of refugees.
The talk concluded with a question and answer period and media availability with participants. This event was covered by CTV-BC, Omni-TV, Fairchild TV, the Epoch Times and the Ubyssey (campus newspaper).
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