Poste - Canadian Coalition for the Rights of Children

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Timeliness of the Process C A N A D I A N C O A L I T I O N F O R T H E R I G H T S O F C H I L D R E N There is general concern about the length of time it takes to determine refugee claims. The Auditor General, in particular, has expressed concern: The Immigration and Refugee Board has been unable to achieve its objectives for processing times over the past three years. The average processing time went from seven months in 1993-94 to nearly 13 months in 1996-97. The same period also saw a sharp increase in the backlog of claims waiting to be processed, from approximately 17,500 at 31 March 1994 to nearly 29,000 at 31 March 1997. At that date, more than 10,000 claims had been awaiting processing for over a year. 65 The Joint Centre of Excellence for Research on Immigration and Settlement--Toronto says that while “speed and efficiency are important in resolving claims, these goals should not be allowed to compromise legal standards. It should be acknowledged that complex cases may require protracted periods of adjudication.” 66 According to the Auditor General, the processing times for refugee claims are unacceptable for various reasons: • the time it takes to arrive at decisions unduly prolongs the fear and uncertainty felt by refugees; • claimants settle in and create ties within Canadian society during this time; • after a while, it becomes difficult to remove them. 67 Training According to Citizenship and Immigration Canada officials, immigration officers do not receive training specific to the UN Convention on the Rights of the Child. However, they do participate in training programs on dealing with children in the immigration process. 68 Training for Immigration and Refugee Board (IRB) members did not specifically address the UN Convention on the Rights of the Child. 69 Acceptance Rates The Auditor General found that: “There are major discrepancies among Board offices in acceptance rates for claimants from the same country. For example, in 1996 the acceptance rate for claimants from a certain country was four percent in one regional office and 49 percent and 82 percent in two others.” 70 110 According to the Auditor General, when the Refugee Board examined the discrepancies it concluded that “a major contributing factor was that decision makers did not always use the same sources of information and interpreted the available information differently.” 71 Canada has one of the highest acceptance rates for refugee claimants among industrialized countries. 72 Percentage of Favourable Immigration and Refugee Board Decisions 73 1993-94 48 percent 1994-95 62 percent 1995-96 54 percent 1996-97 41 percent Lack of Documentation Sections 85 to 93.1 of the Immigration Act make transport operators liable to penalties if they transport people to Canada without proper documentation. The House of Commons Standing Committee on Citizenship and Immigration said that: “We are aware that it strains public credulity when people who arrive in Canada without travel documents...are allowed to enter Canada and remain at large pending the hearing of their refugee claim.” 74 The Immigration Act permits detention if a person’s identity is not established. Canadians, however, have recently heard accounts of Kosovo Albanians being stripped of their identification papers by Serb forces. It is likely that Canadians are more accepting of undocumented refugee claimants than the Standing Committee suggests. The Minister of Citizenship and Immigration speaks about undocumented claimants as follows: Because they have no ID, we will not grant these people permanent resident status until they have had time to demonstrate respect for the laws of Canada and for us to detect those who may be guilty of crimes against humanity or acts of terrorism. 75 At the end of 1998, there were approximately 13,000 undocumented refugees in Canada and 40 percent of them were children. 76 Many fled Somalia, which has had no central government to issue identity documents since 1991. Others are from Afghanistan, northern Sri Lanka
and the Democratic Republic of Congo. Some fled too quickly to retrieve documents, others came from nomadic cultures where identity documents are uncommon. 77 And others, as in Kosovo, had their documents taken from them. Convention refugees must provide satisfactory identity documents in order to obtain permanent resident status, although Citizenship and Immigration now allows undocumented refugees from Somalia and Afghanistan to apply for permanent residence after five years. Families cannot be reunited until permanent residence is granted and for undocumented refugees, it is a long wait. The Canadian Council for Refugees says that: The most consistent message to emerge from the public hearings conducted by the task force was the cry for help from individual refugees who are forced to endure the anguish of prolonged separation from their families. The individual stories each have their own tragic twists. 78 Until refugees are accepted for landing they cannot: • be reunited in Canada with their families; • travel out of the country to visit their families; • enjoy the right to full health coverage. 79 Canadian immigration policy also prevents the children of refugee claimants from visiting their parent in Canada until the parent is accepted for landing. 80 Right-of-landing Fee In 1995, the federal government began charging a $975 right-of-landing fee for every adult refugee applying for permanent residence in Canada. The Canadian Ethnocultural Council says this so-called head-tax is “prohibitively high” and “poses a significant barrier for genuine refugees in need of protection.” 81 While refugees can apply for a loan under the Immigrant Loans Program, the “review of the loan application also adds another step in the process, meaning further delays in family reunification.” 82 Refugees who do not qualify for a loan are faced with further delays in sponsoring family members still abroad. COSTI, the largest immigrant-serving group in Toronto, says that “the right-of-landing fee was ill-considered and should be abolished. This fee has created a tremendous H O W D O E S C A N A D A M E A S U R E U P ? 111 barrier for many who are struggling with the considerable expense of moving from their impoverished country to Canada.” 83 The Canadian Council for Refugees adds that “no other country charges refugees such a fee.” 84 Deportation The best interests of the child do not have to be considered in deportation hearings. Children who have lived in Canada for years can be deported. And the parents of Canadianborn children can be deported without consideration of the children. Take, for example, Mavis Baker who has lived in Canada since 1981. Ms. Baker never became a permanent resident and was ordered deported in 1992, although she has four Canadian-born children. (Ms. Baker, who had supported herself for 11 years in Canada, had since been diagnosed as a paranoid schizophrenic and was on welfare.) The decision was appealed because of Canada’s obligations under the CRC. In Baker v. Canada (Minister of Citizenship and Immigration) (1996), the Federal Court of Appeal said that since the CRC has not been adopted into Canadian law, that the Convention cannot prescribe the obligation to give the best interests of children superior weight to other factors. However, the Supreme Court of Canada recently said that the decision to deport Ms. Baker was not sensitive to the interests of her children. In Sellakkandu v. Canada (Minister of Employment and Immigration) (1993), 85 “the court concluded that it did not have to decide if the Canadian child’s interests would be affected, because only the parent who would be separated from the child was a party to the proceedings, not the child.” 86 However, in Francis (Litigation guardian of) v. Canada (Minister of Citizenship and Immigration) (1998), 87 Ontario Court Justice McNeely said that if “the choice referred to is the choice between abandoning six and eightyear-old children by leaving Canada without them or taking them with her away from the country of their birth, residence, education and citizenship...then it is a choice compelled by government action.” 88 The Court found that it would be in the best interests of the children for them to remain in Canada with their mother and in her care. This case has been appealed to the Ontario Court of Appeal. The House of Commons Standing Committee on Citizenship and Immigration believes that the interests of children, with regard to the criteria for humanitarian and compassionate consideration, should be given more emphasis. 89
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THE UNCONVENTION ON THE RIGHTS OF T
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C A N A D I A N C O A L I T I O N F
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articles 13, 14 and 15 (cont’d)
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article 23 (cont’d) NEEDS DIALOGU
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article 28 and 29 (cont’d) NEEDS
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Article 13 The Right to Freedom of
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(c) freedom of peaceful assembly; a
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Promoting the Freedoms C A N A D I
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Endnotes C A N A D I A N C O A L I
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Endnotes C A N A D I A N C O A L I
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Page 62 and 63: C A N A D I A N C O A L I T I O N F
Page 68 and 69: Coalition Questionnaire: C A N A D
Page 76 and 77: Bibliography Children with Disabili
Page 96 and 97: Title of Act Years of compulsory ed
Page 98 and 99: Endnotes C A N A D I A N C O A L I
Page 108 and 109: Benefit of the Doubt C A N A D I A
Page 110 and 111: Visa Restrictions C A N A D I A N C
Page 114 and 115: Lack of appeal mechanism C A N A D
Page 122 and 123: Process and Protocols PROCESS: Key
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Page 132 and 133: Concern C A N A D I A N C O A L I T
Page 140: This is aproject of the CanadianCoa
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Poste - Canadian Coalition for the Rights of Children

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