ࡱ> [ Ibjbj  Cΐΐ,+"$\[&[&[&D&&&''4&f?*ja.w.w.w./A23d ? ? ? ? ? ? ?ACl ?[&i3//i3i3 ?[&[&w.w.4 ?>>>i3X[&w.[&w. ?>i3 ?>>>w.]`a&6>>6?0f?>D;D>D[&>pi3i3>i3i3i3i3i3 ? ?>i3i3i3f?i3i3i3i3Di3i3i3i3i3i3i3i3i3 !:  SEQ CHAPTER \h \r 1Compassion or expediency: The overseas selection of Central American refugees Phil Ryan Prepared for the office of Dan Heap M.P. Trinity-Spadina July 1988  SEQ CHAPTER \h \r 1Preface (2015) Refugees selected overseas are those who apply at a Canadian consulate somewhere or other, and are approved to come to Canada. Overseas thus distinguishes such refugees from those who manage to make it into Canada or to a Canadian border and then apply for refugee status. According to a dominant government and media narrative, the overseas refugees are the ones who play by the rules, while the others jump the queue. Most of us generally view playing by the rulesas admirable behaviour, while frowning on those who jump the queue, any queue. The important question, though, is: just what are those rules? Are they fair? Humane? Do they take the often desperate circumstances of refugees into account? And how are they applied in practice? My study found that the rules we were expecting would-be refugees to respect were discriminatory, and were being applied in ways that often revealed racial and class biases on the part of consular officers. I also found well-hidden rules, rules not recognized in law or regulation, that deliberately created barriers to even applying for refugee status. At the same time, many informants told me of Canadian consular officials who were fair, well-informed, and sometimes even courageous in their dealings with Central American refugees. Such officials demonstrated that, even within a very problematic policy context, personal compassion and integrity can make a real difference in the lives of vulnerable human beings. Those who have paid attention to the policies of the Harper government towards refugees can easily identify the elements of continuity and change between the picture drawn in these pages and the current reality. I argued in 1988 that Canadas geopolitical commitments and alliances biassed the overseas selection of refugees. Under the government of Brian Mulroney, this meant in particular that those claiming persecution by a government that the Reagan administration was seeking to overthrow (Nicaragua) were given preference over those fleeing from regimes that Reagan supported, whose claims for refugee status were often much more credible. Observers today suspect that this Cold War filter has been replaced by an anti-Muslim one. This suspicion has been strengthened by the governments slow response to the Syrian refugee crisis, and by Mr. Harpers declared policy of giving preference to religious and ethnic minorities from that country (in marked contrast to the governments evident unwillingness to protect minorities from Hungary, for example). Perhaps the greatest shift under the Harper government, however, concerns those refugees not studied in this document: those who try to reach Canada before making a claim for asylum. The government has stepped up its efforts to prevent such individuals from even reaching Canada. And it has weakened due process protections for those who do make it here. The overall result of these policy shifts is that grants of permanent residency status to those who claimed refugee status after arriving in Canada declined by 59% between 2005 and 2013.1 I concluded in 1988 that Canadas refugee policy was shaped more by expediency than compassion, yet the government had sought to sustain Canadas reputation of having a humanitarian tradition. The absence of compassion is all the more obvious today. Concern for our humanitarian reputation? Not so much. Ottawa September 2015 Contents  TOC \o "1-3" \h \z \u  HYPERLINK \l "_Toc430693523" Chapter 1: Introduction  PAGEREF _Toc430693523 \h 1  HYPERLINK \l "_Toc430693524" Chapter 2: Canada and the Central American Refugee Crisis  PAGEREF _Toc430693524 \h 8  HYPERLINK \l "_Toc430693525" 2.1 The scale of refugee admissions in general  PAGEREF _Toc430693525 \h 8  HYPERLINK \l "_Toc430693526" 2.2 Regional Refugee Strategies  PAGEREF _Toc430693526 \h 9  HYPERLINK \l "_Toc430693527" 2.3 Convention Refugees and Designated Classes  PAGEREF _Toc430693527 \h 12  HYPERLINK \l "_Toc430693528" Chapter 3: Central American Refugee Policy in the 1980's  PAGEREF _Toc430693528 \h 18  HYPERLINK \l "_Toc430693529" 3.1 Progress and Roll-back  PAGEREF _Toc430693529 \h 18  HYPERLINK \l "_Toc430693530" 3.2 The new refugees: Nicaraguans  PAGEREF _Toc430693530 \h 23  HYPERLINK \l "_Toc430693531" 3.3 The human rights situation in Central America  PAGEREF _Toc430693531 \h 25  HYPERLINK \l "_Toc430693532" Chapter 4: The Refugee Process Described  PAGEREF _Toc430693532 \h 33  HYPERLINK \l "_Toc430693533" 4.1 The Initial Determination  PAGEREF _Toc430693533 \h 34  HYPERLINK \l "_Toc430693534" 4.2 The Main Determination  PAGEREF _Toc430693534 \h 37  HYPERLINK \l "_Toc430693535" 4.3 The medical and security checks  PAGEREF _Toc430693535 \h 40  HYPERLINK \l "_Toc430693536" Chapter 5: The Refugee Process Observed  PAGEREF _Toc430693536 \h 43  HYPERLINK \l "_Toc430693537" 5.1 A Question of Quotas  PAGEREF _Toc430693537 \h 44  HYPERLINK \l "_Toc430693538" 5.2 Getting to Square One: The Problem of Access  PAGEREF _Toc430693538 \h 47  HYPERLINK \l "_Toc430693539" 5.3 Getting an Interview  PAGEREF _Toc430693539 \h 53  HYPERLINK \l "_Toc430693540" 5.4 The Interview Stage: Admissibility  PAGEREF _Toc430693540 \h 59  HYPERLINK \l "_Toc430693541" 5.5 The Interview Stage: Eligibility  PAGEREF _Toc430693541 \h 65  HYPERLINK \l "_Toc430693542" 5.6 After the Interview  PAGEREF _Toc430693542 \h 76  HYPERLINK \l "_Toc430693543" Chapter 6: Findings and Recommendations  PAGEREF _Toc430693543 \h 81  HYPERLINK \l "_Toc430693544" 6.1 Findings  PAGEREF _Toc430693544 \h 81  HYPERLINK \l "_Toc430693545" 6.2 Recommendations  PAGEREF _Toc430693545 \h 82  Chapter 1: Introduction One of the very oldest Greek dramas is Aeschyluss The Suppliants. Written perhaps as early as 500 B.C., the short play tells the story of a group of women who flee from Egypt to avoid forced marriages. Arriving at Argos, they seek admittance there as refugees. The king of Argos knows that one of the most important moral laws is that hospitality be shown to exiles, but he is fearful that by so doing he will provoke a powerful neighbour -- the Egyptians. The king must choose between fulfilling a moral obligation and avoiding problems; between the right to security of the women and his own national security; between compassion and expediency. The details change, but the choice remains the same. Compassion versus expediency; granting security to exiles versus protecting a vaguely-defined national security; meeting international obligations versus maintaining good relations with a powerful neighbour. That Canada has, since the Second World War, shown compassion for the worlds refugees was recognized in 1986 when the United Nations High Commission for Refugees [UNHCR] awarded the Canadian people the Nansen Medal, given in honour of Dr. Fridtjof Nansen, a Norwegian prominent in refugee resettlement work between the two world wars. It is also true, however, that successive Canadian governments have sought to submit the compassion of the Canadian people to the dictates of political and economic expediency. Bring in refugees, indeed many refugees, but be careful about it. Bear in mind Canadas geopolitical commitments and alliances. Select those who can most contribute to the Canadian economy. The degree of turmoil in the world generates a large enough pool of candidates for refugee status that one can afford to be quite choosy, all the while maintaining a reputation for ones humanitarian tradition.1 The present study emerges from a concern that, in the ancient struggle between compassion and expediency, expediency has of late been gaining the upper hand. This process has been incomplete, and has met with resistance from Canadians in general and from civil servants within the immigration bureaucracy itself. Nevertheless, present tendencies in Canadian refugee policy are cause for serious concern. M.P. Benno Friesen, Parliamentary Secretary to the Minister for Immigration and Employment, recently offered an articulate explanation of the roots of the current Governments refugee policy. Speaking in the House of Commons on June 10, Mr. Friesen commented: [N.D.P. M.P. Stephen Langdon] began by saying that his forbearers came here in 1848 as a result of the failed revolutions in Germany. I understand that, since my grandparents and great-grandparents came from much the same background. However, he went on to say that the refugees today are the same as those in 1848 as if nothing has happened in the world since 1848 that would change the outlook or behavioral practices of people wanting to come to Canada. Let me list just a few of the concepts which have now formed the behavioral patterns of people. For example, nihilism, which basically says it does not matter since nothing matters anyway. So you can do what you want. It is all a black future. There is no good consequence of anything, anyway, so go ahead and do what you want. There is existentialism, which makes everyones individual outlook paramount. There is no uniform absolute. Nothing is clearly right or wrong. Therefore, the expression of your own particular authenticity is the most moral thing you can do. There is no absolute morality so it does not matter if you incite violence or peace in its own self [sic]. That is a very popular concept. There is dialectical materialism. It began to be popular around 1848 but not pervasive at that time. But for the last 150 years, witness Eastern Europe and the effect of dialectical materialism, where the state is supreme and individual rights are nothing. They have value only to the extent and to the degree they support the state. How about situational ethics, again where nothing is right or wrong except the situation in which you happen to be. It depends on the situation. Finally, the marxist theology of Latin America which espouses violence for their cause. I want to remind the professor that when we have that cauldron of belief in the system, the thought forms of people coming to Canada have changed in the last 150 years, and Canada deserves some protection from people whose thought forms have changed, if they no longer hold to absolute rights and wrongs. The Canadian people deserve the right to choose carefully on the basis of what is good for Canada as well as good for the refugee claimant in order that they can live in a sense of security and growing tolerance and understanding, but with the knowledge that the people who come here, come with some solid basis of understanding that there is a consensus in Canada of what is right or wrong. We want them to share in that consensus. This perception of Canada as a nation besieged does not leave much fertile ground for compassion towards refugees, and creates the danger that the Canadian Government will turn its back on Canadas own humanitarian tradition. In the name of security and growing tolerance and understanding, the Government seems increasingly willing to do what the King of Argos refused to do 2,500 years ago: abandon refugees to whatever fate has in store for them. ---------- The present study examines a very specific area of Canadian refugee policy: the selection abroad of Central American refugees. In examining the overseas selection of refugees, we are focussing upon a relatively hidden area of refugee policy. Much attention has been given of late to the situation of those seeking refugee status from inside Canada. The Tamils, the Turks, the Governments desire to streamline the refugee determination process for those already in Canada: all have been the subject of media attention and political debate. Those who have arrived in Canada enjoy certain legal protections unknown to those who seek to become refugees through the overseas selection process. The Supreme Court has ruled that any person physically present in Canada is covered by the fundamental justice guarantee of the Charter of Rights2. In addition, Canada is a signatory of the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol to that Convention. The Convention and Protocol offer certain protections to refugees: a signatory to the Convention may not expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (Article 33) This clause forbids the expulsion of refugees to nations from which they are likely to be returned to their country of origin. Speaking before the Standing Committee on Labour, Employment and Immigration in March 1987, Job Van der Veen of the UNHCR explained3: This means that if Canada deported a refugee to a European country where he had stayed before, this European country deported the refugee to a country neighbouring the country of origin of the refugee, and this country deported him to the country of origin, three countries are guilty of a serious breach of international law. [Emphasis Added] This protection exists regardless of whether it is Canada or some other signatory of the U.N. Convention that has determined the person in question to be a Convention Refugee (a refugee as defined by the Convention). No such protections exist for those abroad who seek to be admitted as refugees to Canada. As stated in Employment and Immigration Canadas Immigration Manual: Selection and Control4: The Convention and Protocol obligate Canada to protect persons within this country who have been designated as Convention Refugees by Canada or by another signatory. These international instruments contain no provisions concerning the selection abroad of Convention Refugees. [Emphasis Added] The requirements of fundamental justice, international treaty obligations, not to mention media scrutiny and public pressure, put constraints upon the decision-making process for refugee claimants already inside Canada. How much more convenient to adjudicate cases while the persons affected remain outside Canada! To keep potential refugee claimants outside of Canada is one objective of immigration policy. A memo to immigration officials abroad stresses5: Applications for visitor visas by all El Salvadorian nationals, regardless of the country of present residence, should be closely examined as to bona fides of the intended visit, likelihood of submission of a refugee claim in Canada, and assurance of intention to depart Canada upon completion of the visit. Offices may continue to issue visitor visas in the normal manner to all reasonable requests for visitor visas if satisfied; however, refusal should result from any element of doubt. [Emphasis in original] To keep potential refugee claimants outside of Canada, and to channel those claimants through the overseas selection process where they have no rights, is also a prime objective of Bill C-55, which will seriously limit the possibility of seeking refugee status from within Canada. Speaking before the Standing Committee on Labour, Employment and Immigration, then-Minister of State for Immigration Gerry Weiner noted that the bill would have the effect that resources will be focussed, as they should be, on overseas selection of refugees6. If Bill C-55 is passed, and it becomes more difficult for potential refugees to make a claim from within Canada, then the overseas selection process must be subjected to greater scrutiny. This study will show that the overseas selection process is a poor and inconsistent one, unworthy of a country that prides itself on its compassion. We will also argue that certain relatively simple changes would serve to ensure that the selection process reflects our own values and our vision of how Canada should fulfill its international obligations. ---------- Outline of the Work Chapter 2 is a general view of Canadas response to the Central American refugee problem. Chapter 3 examines the evolution of Canadian policy throughout the 1980's. Chapter 4 describes the overseas refugee selection process as it is presented in Employment and Immigration Canadas Immigration Manuals. Chapter 5 observes the selection process in practice. In Chapter6 we summarize our findings and offer some recommendations on refugee policy. Chapter 2: Canada and the Central American Refugee Crisis In this chapter we will offer a preliminary look at data on the selection of refugees from Central America and compare that data with that for other regions of the world. We will argue that the response of the Canadian Government to the Central American refugee problem has not been as generous as it might have been had the refugees come from certain other parts of the world. Nevertheless, in the early 1980's positive steps were taken to address the plight of Central American refugees. These steps will be examined in Chapter 3. 2.1 The scale of refugee admissions in general Canada is not being overrun by refugees. While it may seem unnecessary to make this point, some political rhetoric on the refugee situation in Canada seems to suggest that we are in danger of being swamped by millions of foreigners seeking refuge from political oppression or merely seeking to better themselves. Table 1 examines the relationship between refugee admissions and immigration in general to Canada. Table 1 Refugees in Relation to Immigrants in General RefugeesRefugeesRefugeeTotalRefugeesSelectedGrantedTotalImmigrationas %AbroadStatusof TotalIn Canada198114,53246414,996128,61811.70%198216,21169716,908121,14714.00%198313,01762613,64389,15715.30%198414,44096015,40088,23917.50%198515,3541,19616,55084,27319.60%198617,2131,41218,62598,46118.90%Total90,7675,35596,122609,89515.80% [Source: Employment and Immigration Canada, Refugee Perspectives 1987-1988", p. 39] One can see, first, that refugees represent a relatively small proportion of immigrants in general, averaging under 16% throughout this decade. Secondly, one can note that the annual refugee intake has been well below one-tenth of one percent of the Canadian population. 2.2 Regional Refugee Strategies In 1986, Canada admitted 3,427 refugees from Central America1. That same year, the U.S. Committee on Refugees, which the Canadian Government uses as a source for much of its data on the world refugee situation, estimated that there are approximately 280,000 refugees requiring assistance and/or protection in Central America2. In addition, there are hundreds of thousands of undocumented Central American refugees living in the U.S. who are at risk because the Reagan Administration generally does not recognize refugees from the regimes it backs in the region. The admission of just over 3,000 refugees per year would seem a limited response given the scale of the refugee crisis in Central America, but the Canadian Government argues that this response is appropriate because the refugee situation in Central America is quite different from that of other regions3: The United Nations High Commission for Refugees and local governments believe that the refugee problem is temporary and will be drastically reduced once conditions in El Salvador, Guatemala and, to a lesser extent, in Nicaragua, stabilize. As a result, the preferred solution is not to seek third country resettlement for significant numbers. The argument is valid to a point: no-one is arguing that the hundreds of thousands of refugees and displaced persons in Central America and Mexico should up and move North. But in arguing that the refugee problem is temporary, the government demonstrates insensitivity to the depth of the Central American crisis. As temporary as the refugee crisis in Central America may be, it represents a serious and even life-threatening situation for thousands who may die long before the temporary problem is resolved if adequate assistance is not forthcoming from countries outside the region. In April of 1988 a U.S. Judge presented findings on the situation of Salvadoran refugees in Central America and Mexico as part of a judgement in a case brought by Salvadorans in the U.S. against Attorney-General Edwin Meese and the U.S. Immigration and Naturalization Service4. We quote at length from the judges finding: Mexico is not a signatory to the 1951 Convention or the 1967 Protocol Related to the Status of Refugees. Salvadorans are not recognized as classical refugees in Mexico, and there is no assistance program for Salvadorans in that country. Salvadorans have no legal status in Mexico outside of a small number who have gained political asylum or some who have student visas or work permits. Those without special status cannot work and are routinely subject to extortion and other abuses because of their illegal status. There have been numerous accounts of women being apprehended and raped by uniformed men, as well as accounts of Salvadorans being robbed by police as they pass through Mexico. Honduras is not a signatory to the 1951 Convention or the 1967 Protocol Related to the Status of Refugees. All refugees are considered to be residing in Honduras temporarily, and their status does not generally permit them to move freely or to work. The Salvadoran refugee camps in Honduras are closed camps, without freedom of movement. There is a military presence near all camps and searches occur frequently. In its 1986 Annual Report, Amnesty International reported that it had received reports which suggested a pattern of harassment and intimidation of Salvadorian refugees in Honduras. On 3 September (1985) the organization issued urgent appeals following an incursion by Honduran troops on 29 August into the refugee camp of Colomoncagua. Eye-witnesses reported that soldiers fired indiscriminately and without provocation at the tents and the refugees themselves with machine guns and rifles. Ten refugees were arrested, over 50 others wounded by gunfire or seriously beaten, two women raped and two people killed during the attack, one of them a two-month-old baby. Such is the situation of those suffering the temporary refugee crisis in Central America. Again, no-one is suggesting that Central America be moved to Central Canada. But between resettlement for significant numbers and the current level of acceptance of Central American refugees there is a wide range of options, and we believe it would be appropriate for Canada to respond to the Central American situation with the same generosity it showed, for example, after the Hungarian Revolution in 1956 or the Indochinese crisis in the 1970's. It should be noted that there are only two nations in Central Americas hemisphere that have the economic capacity to absorb those refugees who cannot be voluntarily repatriated in the foreseeable future. One of those nations, the U.S., refuses to deal with a refugee crisis that is in large part the product of its own meddling in the region. That leaves Canada. To paraphrase a rabbinical saying If not us, who? 2.3 Convention Refugees and Designated Classes Article 3 of the 1951 Convention on Refugees states that The Contracting States shall apply the provisions of this Convention without discrimination as to race, religion or country of origin. As we noted in the Introduction, the Canadian Government interprets the Convention as applying to refugees already in Canada, and not to the overseas selection of refugees. It can nevertheless be argued that the spirit of the U.N. Convention indicates that our refugee policy should be blind with respect to race, religion and country of origin. Canada, however, follows what might be called a two-track refugee policy. Convention Refugees, those meeting the Conventions definition of a refugee, may be admitted from any region that generates such refugees. Certain individuals who do not meet the strict Convention definition may also be admitted as refugees under the Designated Class system, but only if they come from certain specific countries. The 1951 Convention defines a refugee as a person who, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country. The Canadian Governments Immigration Act of 1976 uses this definition of refugee. In addition, Because many displaced and persecuted persons do not qualify under the United Nations refugee definition, the immigration legislation also provides that designated classes be identified and assessed under relaxed immigrant selection criteria. There are three designated classes at present: East European self-exiles, Indochinese and persons facing persecution in some Latin American countries5. The category of Designated Classes really combines apples and oranges. We will quote at length from the criteria by which a person can be included in the Political Prisoners and Oppressed Persons Designated Class6: Political Prisoners and Oppressed Persons Designated Class means a class of persons the members of which are in their country of citizenship, are citizens of a country listed in the schedule7, are seeking resettlement in Canada and, a) 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, or b) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group, are unable or, by reason of such fear, unwilling to avail themselves of the protection of their country of citizenship. The main difference, then, between this definition and the strict Convention Refugee definition is that this Designated Class includes people who are still inside their country of citizenship, while the Convention Refugee definition refers to those outside their country. Thus the Political Prisoners and Oppressed Persons Designated Class covers persons who would be considered refugees except that they are still within their country of citizenship8. Meeting this criterion alone does not mean one can come to Canada. One must also be able to show that one can become successfully established in Canada. We return to this successful establishment criterion in Chapters 4 and 5. The Eastern European Self-Exiled Designated Class is quite different9: Self-exiled Persons Class means a class of persons the members of which a) are citizens, former citizens, or former residents of a country listed in Schedule I10, b) are outside Canada and are not residing or sojourning in any of the countries listed in Schedule I or II11, c) are unwilling or unable to return to their country of citizenship or former habitual residence, d) have not become permanently resettled, and e) are seeking resettlement in Canada. Basically, then, one can fit in the Eastern European designated class merely by having left ones country for a country of first asylum and saying one wishes to come to Canada. An Eastern European Self-Exile does not have to demonstrate in any way a well-founded fear of persecution, though he/she must still meet the successful establishment criterion. The use of designated classes is often mentioned in government documents as an example of Canadas living up to its humanitarian tradition. The existence of such classes seems to suggest that Canada is willing to do more than is required by international law, and indeed the Political Prisoners and Oppressed Persons Designated Class has been successful in admitting to Canada persons in dire need who did not meet the strict Convention Refugee definition, because they were still in their country of citizenship (indeed, many of those admitted came straight from Latin American jails to Canada). But the use of the designated classes also leads to a serious inconsistency in Canadas refugee selection process between one region of the globe and another. This becomes obvious if one examines the Governments own refugee statistics. In 1986, Canada admitted 5,356 refugees from Eastern Europe and 3,427 from Central America. But of the Eastern Europeans, only 3.8% were Convention Refugees12. The rest fell within the Self-exile Designated Class. Thus, for each Eastern Europe refugee who demonstrated a well-founded fear of persecution, twenty-five did not. Thus, the standards one must meet in order to be considered a refugee in the eyes of the Canadian Government depend above all on whether one was born in one part of the globe as opposed to another13. As we shall see in Chapter 5, refugee applicants can be subjected to abusive interrogation by Canadian immigration officials anxious to pick holes in their claims of persecution; Eastern-European applicants need not even make such claims. We wish to insist that we are not arguing that Eastern Europeans, or anyone else, should be kept out of Canada. We are merely wondering whether the Governments laudable concern for the welfare of those from some countries might not be extended South. The Canadian Government has consistently argued that there are constraints upon the number of refugees that Canada can realistically admit. In a world with at least 12 million refugees, it is clear that, however generous we wish to be as a people, the quantity of refugees admitted to Canada will only be a drop in the bucket in relation to the global refugee problem. It is vitally important then, that our response to this problem be geared to helping those in greatest need and greatest danger, rather than favouring persons with lesser needs because they happen to come from a certain part of the globe. We believe that, were Canada to develop a refugee policy that is consistent with the spirit of the U.N. Convention on Refugees, that truly does not discriminate on the basis of country of origin, our response to Central Americans at risk would be much more generous, given the scale of the refugee crisis in that region and the fact that the only other developed nation in our hemisphere has turned its back on that crisis. Chapter 3: Central American Refugee Policy in the 1980's In this chapter we will examine the evolution of Canadian policy towards Central American refugees in this decade. We shall first examine some positive measures taken on behalf of Salvadorans and Guatemalans by the Liberal Government in the early 80's, and the gradual roll-back of those measures by the Conservatives since 1984. We shall then examine the dramatic rise in admissions of Nicaraguan refugees since the Conservatives came to power. 3.1 Progress and Roll-back At the beginning of the decade, Central Americans represented a negligeable proportion of refugees admitted to Canada. In 1980 Canada admitted only 437 refugees from all Latin America1. In March 1981, the Government responded to appeals from refugee and Church organizations and implemented measures facilitating the admission of Salvadoran refugees. Refugees could be evaluated according to relaxed criteria, and immigration officials in Canada were instructed to grant Salvadorans extensions of their visitor status in as generous a manner as possible. In July 1981, consular posts in the region were given a clear profile of people who are in need of protection: As a general rule, certain professions such as teachers or other persons directly involved in the establishment or delivery of social welfare programs should normally be considered as meeting the criteria for acceptance as refugees... Among some of the groups that have been identified as having been special targets for repression are: campesino leaders; opposition political leaders; trade unionists; human rights advocates; school teachers and university professors; students; priests, religious/social workers; medical personnel. The instruction offered an accurate picture of the level of state terror in El Salvador. The Canadian Government was stating that anyone concerned for social welfare or democratic rights in Salvador might have a well-founded fear of persecution. The instruction given to the consular posts also provides an example of the way in which a humane refugee policy can affect Canadas geopolitical concerns: as the Reagan Administration was rushing to the aid of Salvadors imperiled democracy, Canada was recognizing the reign of terror in that country. Not all Canadian Governments have been as willing to develop a refugee policy in clear conflict with U.S. interests. The new provisions led to a dramatic increase in the acceptance of Salvadoran refugees: from almost no landed refugees in 1980 to over 2,000 in 1982. Similar measures were implemented for Guatemalans in 1984. The admission of Guatemalan refugees more than tripled between 1983 and 1984. At the same time, however, the Government decided that Guatemalans could not enter Canada without a visitors visa. The concern for maintaining a strict control over the refugee process was evident: in its justification for the visa requirement, the Government argued that it would facilitate management of the refugee selection process and would be cost effective in terms of enforcement of the Immigration Act. At the same time, consular facilities in the region were expanded in order to increase the processing capacity for refugees. Some officials in the region interpreted their mandate to help refugees in an energetic and even courageous fashion. An important measure in this period was the addition of ElSalvador and Guatemala to the list of countries to which Canada does not deport people2. Special measures were also implemented to protect Salvadorans and Guatemalans who arrived at Canadian border points indicating an interest in applying for refugee status. These individuals were not to be returned to the U.S. unless officials there promised that the refugee claimants be permitted to return to Canada for hearings. These policies represented an honourable contrast to the mass deportations undertaken in the U.S. throughout the 1980's. The Conservative erosion of these positive measures has been undertaken in a gradual fashion. In December 1985, then-Minister of State for Immigration Walter McLean announced that legislation would soon be introduced to crack down on deliberate and persistent abuse of the refugee determination process in Canada3. In May 1986 the Government actually made it easier for persons from certain countries to enter Canada by announcing that, until the new refugee legislation was implemented, any person from a country on the B1 List [See Footnote 2] who came to a Canadian border point and indicated an intention to claim refugee status in Canada would be given a Ministers Permit and an employment authorization. This move was predicated on the belief that the new refugee legislation would soon be implemented. It appears that the Government believed that few people would take advantage of the provision, and that it would actually speed-up the handling of persons from the B1 countries and thus free up human resources for other tasks, such as deporting people from countries not on the B1 list4. The two premises on which the Governments May 1986 policy were based both proved false: the new refugee legislation was not passed quickly and the number of people taking advantage of the Ministers Permit measure was greater than expected. After the U.S. implemented a law in November 1986 cracking down on undocumented aliens, an increasing number of would-be refugees came to Canada, taking advantage of the May 1986 provisions. In February 1987, in the face of a perceived flood of refugees entering Canada from the U.S., the Government abolished the B1" list, which meant that Salvadorans, Guatemalans and refugees from sixteen other countries were once again eligible for deportation to their countries of citizenship. A transit visa regulation was implemented at the same time. Under this rule, individuals from countries whose citizens require visas to visit Canada would also require visas if their flights to third countries stopped over in Canada. The rule, primarily targeted against Chileans5, sought to frustrate those who claimed refugee status in Canada during stop-overs here. At the time the B1 list was abolished, the Government stated that it had an agreement with the U.S. that refugees in that country awaiting an immigration hearing in Canada would not be deported from the U.S. In fact the agreement merely stated that6 the district director on a case-by-case basis at his discretion will set a reasonable period of time for the alien to effect such departure [from the U.S.], which may be set to coincide with the date that the aliens inquiry is scheduled in Canada. [Emphasis Added] Even this discretionary policy would only apply to those who were leaving the U.S. voluntarily, that is, before they had been ordered to leave by the Immigration and Naturalization Service. Thus, in abolishing the B1 list, the Government created the possibility that refugee claimants turned away at our borders could be deported from the U.S. to their country of origin before receiving a hearing in Canada. Although this measure hurt all refugees from countries on the B1 list, its effect was felt primarily by Central Americans, who represented a large proportion of would-be refugees seeking to enter Canada from the U.S. As part of this slow but steady campaign to make it harder for Central Americans to claim refugee status at Canadian border points, the Government in September 1987 ruled that Hondurans needed visitors visas to come to Canada, leaving Nicaragua as the only refugee-producing country in Central America exempt from the visa requirement. 3.2 The new refugees: Nicaraguans Table 1 shows the evolution of refugee admissions from abroad 1984 to 1987. Table 1 Refugee Admissions from Abroad: Central America 19841985198619871988*El Salvador2159208021862242737Guatemala336578537440132Nicaragua77421646915340Others991495810617Total26713228342737031226 *1988 figures for January-April [Source: Refugee Perspectives, Various years, and Immigration Statistics Division] One can note an interesting tendency: admissions of refugees from El Salvador rose just 4% between 1984, the last pre-conservative year, and 1987. Admissions from Guatemala rose 40% over the same period, and have been dropping since 1985. But admissions from Nicaragua have risen over 1,000% during the Conservative years. By 1987, more than twice as many Nicaraguan refugees were being admitted from abroad as Guatemalans. Thus there has been a marked change in the nationality of Central American refugees coming to Canada during the tenure of the present Government. Table 2 presents the percentage breakdown for the region. Whereas Nicaraguans represented under 3% of Central American refugees selected abroad in 1984, by early 1988 they constituted over a quarter of refugees. Table 2 Structure of Refugee Admissions from Abroad Central America (In Percentages) 19841985198619871988*El Salvador80.864.463.860.560.1Guatemala12.617.915.711.910.8Nicaragua2.91318.924.727.7Others3.74.61.72.91.4Total100100100100100 *1988 figures for January-April Source: Table 1 Does this pattern reflect objective changes in the Central American situation? Is it the simple result of the even-handled application of refugee criteria by overseas officials? Or does it reflect the intrusion of geopolitical considerations into Canadian refugee policy? Is refugee selection being influenced by the fact that giving increased preference to refugees from Nicaragua as opposed to Salvadorans and Guatemalans constitutes a refugee policy more to the liking of the Reagan Administration than the policy followed in the early 1980's? To determine whether the selection of refugees reflects an even-handed application of policy, one must first compare the human rights situations in the countries under consideration. It is, after all, widespread disregard for human rights that generates large numbers of people with a well-founded fear of persecution. One would thus expect an even-handed refugee policy to favour refugees from countries with more serious human rights problems. 3.3 The human rights situation in Central America We will not provide here a detailed examination of human rights in Central America. We will simply present short but representative statements from the publications of Americas Watch, Amnesty International, and Canadas Inter-Church Committee on Human Rights in Latin America. The reader is referred to the periodical publications of these organizations for more information. Our analysis is restricted to Nicaragua, Guatemala and ElSalvador, as these are the three prime sources of refugees in the region. Reference will be made to the Honduran situation in Chapter 5. Given the confused pattern of media coverage of Central American events, it is easy for Canadians to believe that the human rights situation is equally bad throughout the region. It may even be felt that those who argue otherwise are extremists or cheerleaders on behalf of one regime or another. In fact the objective situation in Central America is not so balanced, as an honest reading of human rights reports will show. By way of example, we present the introductory paragraphs from the three relevant chapters of Amnesty Internationals International Report for 1986: Nicaragua: Amnesty Internationals concerns continued to centre on a pattern of short-term imprisonment of prisoners of conscience, and the incommunicado detention of political prisoners during pretrial interrogation. Restrictions on the right to a fair trial and poor prison conditions for prisoners of conscience and other political prisoners were continuing concerns. In the course of 1985 Amnesty International acted on behalf of 30 people held in short-term detention it believed were prisoners of conscience or probable prisoners of conscience. Twenty of them, all but two detained in December 1985, were reportedly still in detention at the end of the year. Amnesty International was also concerned about reports of the routine practice of torture and summary execution by irregular forces7 opposing the Government of Nicaragua, and about indications that other governments assisting these forces may have contributed to, encouraged, or condoned these abuses. El Salvador: Amnesty International continued to be concerned about reports implicating the Salvadorian military and security forces, as well as the paramilitary Brigadas de Defensa Civil, Civil Defence Patrols, and the patrullas cantonales, canton patrols, in the arbitrary arrest, torture, disappearance and extrajudicial execution of people from a wide cross-section of Salvadorian society. By comparison with previous years, when abuses such as disappearance and extrajudicial executions had been reported on a massive scale, in 1985 violations appeared to be more selectively directed against people suspected of opposition to the government or of being sympathetic to the opposition. Guatemala: Amnesty International continued to be concerned about the widespread torture, disappearance and extrajudicial execution of people from all sectors of Guatemalan society. An Amnesty International delegation which visited the country in April collected evidence implicating all branches of the military and security services in such abuses. Eye-witnesses testified to the involvement of members of the regular military and security services (acting on occasion in plain clothes in the guise of the so-called death squads, but under orders from superiors), as well as Patrullas de Defensa Civil, paramilitary civil patrols, which operate under army supervision. The difference in the scale of human rights abuses is obvious: in Nicaragua Amnesty International reports problems related to detention, restrictions on the judicial process, etc. The most serious human rights abuses in Nicaragua, according to the report, are those committed by the U.S.-backed contra8. In ElSalvador and Guatemala the problem is one of a massive violation of the right to life itself by government security forces. Some media and officials of various governments are fond of saying that the human rights situations in El Salvador and Guatemala are improving. While this may be true, it is always important to ask Improving relative to what? if one is not to be misled concerning the human rights situation in the region. We wish to recall here the human rights situation in the early 1980's, in order to put recent improvements in their proper perspective. To this end we offer some descriptions that for some readers will be all too familiar: Guatemala, 1982: For the past several years the Guatemalan military has distinguished itself as one of Latin Americas worst human rights violators, in particular regarding the right to life. According to Amnesty International, 2,569 Guatemalans were murdered for political reasons in the last six months of 19819. Guatemala 1984: The prisoners are everywhere in Guatemala. They are the 700,000 or so members of the civil patrols compelled to perform uncompensated counterinsurgency services for the army who must inform on their neighbours or risk implication as guerilla collaborators. They are the hundreds of thousands of displaced persons who must seek the protection of the army and its charity or risk the fury of the army and starvation. They are the tends of thousands of residents of resettlement camps undergoing re-education. They are the hundred thousand or so refugees who have fled to Mexico to seek safety and the largesse of foreign relief agencies. They are the millions of Indians in the Guatemala countryside who have relinquished hope for a better life as virtually all the institutions that stood between them and the state have been destroyed. They are the residents of the cities who silence themselves to avoid winding up as corpses on the street to be dragged off to the morgue by the firemen. Though we are aware of the newsworthiness of death tolls, we are unable to estimate the number of persons killed in the political violence in Guatemala. We know that it must be calculated in the tends of thousands in the last five years and in the thousands in the last five months. Greater precision is not possible10. El Salvador, 1983: Political murder by the security forces has been taking place at such an astounding rate for four years that by now it is routine. It is increasingly plain that political murder is not incidental to the conduct of the war in ElSalvador. We also note that the civilian government has not taken on the security forces in the one way that might be meaningful in dealing with the central human rights problem of political murder. That is, as best we can determine, there has not yet been a single instance in which a member of the security forces has been criminally punished for a human rights violation. Unless and until military leaders who order or countenance political murders are removed and criminal punishment is the predictable consequence for political murder, it is a sham to pretend that the civilian government actually governs11. This last comment is an interesting one: it provides an valuable criterion by which the processes of democratization allegedly taking place in El Salvador and Guatemala can be judged. It also forms a notable contrast with the Nicaraguan situation. A 1986 Amnesty International report on the situation there noted: Amnesty International has received some reports of torture, arbitrary killings and unacknowledged detention being carried out by military personnel in remote areas undergoing armed conflict. However, the organization has also received information on the public trial and imprisonment of military personnel found responsible for such abuses12. To what extent have the Duarte and Cerezo regimes been able to bring human rights abuses in El Salvador and Guatemala under control? With respect to El Salvador, a 1986 Americas Watch report comments drily: There are few places elsewhere where some 1,900 political killings and disappearances in a year -- approximately ninety percent of them at the hands of armed forces ostensibly controlled by a civilian democratic government -- would be considered routine13. The report also referred to: -the continuing immunity of the armed forces from criminal punishment for human rights abuses against Salvadorans, and the promotion of officers responsible for gross abuses. -the continuing failure of the civilian government to control the armed forces; -the continuing failure to establish the rule of law In Guatemala, President-elect Vinicio Cerezo had the following exchange with a reporter in late 198514: Q: Dont you think 80,000 deaths are a sufficient reason to bring some people to trial? A: Do you think the Nuremberg Trials produced some positive result? In this moment we are not going to find proof because there is still a climate of terror in which people would not be willing to testify against officers. With respect to Cerezos first year in power, Amnesty International reported: During 1986 Amnesty International was concerned about instances of apparent disappearances and extra-judicial executions, although such reports were received on a lesser scale than in previous years. It was also concerned about the harassment and intimidation of those seeking clarification of past human rights violations. However, Amnesty International welcomed a number of legislative changes relevant to its human rights concerns instituted or promised by the countrys first elected president in more than 20 years, Vinicio Cerezo Arevalo who took office in January. Despite some improvement in the human rights situation, however, there was minimal progress in determining responsibility for the tens of thousands of cases of torture, disappearance and extrajudicial execution of people from all sectors of Guatemalan society which had occurred during the previous two decades of military government15. Despite the relative improvement in the human rights situation reported, the Guatemalan Human Rights Commission reported 325 extrajudicial executions and 86 disappearances in the first nine months of 198616. Political murders were thought to be running at approximately seventy per month in 198717. In conclusion, while there appears to have been a decline in the numbers of state-sponsored murders and disappearances in ElSalvador and Guatemala in recent years, it remains true that the level of human rights abuses remains high, and high above the level reported in Nicaragua by respected human rights organizations. The rise in the entrance of Nicaraguan refugees to Canada is not a reflection, then, of a deteriorated human rights situation in that country, and the fact that more Nicaraguans than Guatemalans are being admitted is remarkable in light of the human rights situations in the two countries. It is all the more remarkable given that Nicaraguans unhappy with conditions in their country have an alternative open to them that Guatemalans and Salvadorans do not: migration to the U.S. Throughout the 1980's it has been much easier for Nicaraguans to be given asylum in Reagans America than for other Central Americans. Nevertheless, the U.S. Immigration and Naturalization Service was surprisingly tough on Nicaraguans: from June 1983 to September 1986, only 14% of Nicaraguans who applied for asylum were successful. The comparable figures for Salvadorans and Guatemalans were 2.6% and 0.9%, respectively18. In 1987, however, the situation for Nicaraguans in the U.S. changed dramatically. Early in the year a bill was proposed in Congress which would have suspended deportations of Salvadorans and Guatemalans for two years. The Moakley-DeConcini Bill, as it was known, enjoyed support from both liberal and conservative members of Congress, since it applied to both Salvador and Nicaragua. In mid-1987, however, the Reagan Administration moved to undercut conservative support for the bill by advising immigration officers to reconsider previously refused Nicaraguan asylum applications, and to apply more lenient criteria. The result of this advice was that for 1987 as a whole, nearly 85% of Nicaraguans who sought asylum in the U.S. were granted it, compared to less than 4% of Salvadorans and Guatemalans19. Thus, not only is the human rights problem in Nicaragua less severe than in Guatemala or El Salvador, but Nicaraguans are twenty times more likely to receive asylum in the U.S. than applicants from other Central American nations. Despite this, they represent an ever-growing proportion of Central American refugees accepted into Canada. All this having been said, we wish to issue two caveats: i) We do not wish to suggest that no true refugees have come from Nicaragua in recent years. ii) We would caution supporters of the Nicaraguan Government against making blanket judgements with respect to Nicaraguan exiles. While Nicaraguans who left the country in the 1979-80 period were often closely identified with the Somoza dictatorship, many of the exiles of the mid-1980's were simply people without strong political affiliations who grew weary of the economic situation20. While not refugees in the classical sense, neither should these individuals be viewed as pariahs. The Nicaraguan Government itself is trying to encourage the repatriation of many of the mid-1980's exiles. While we will argue in Chapter 5 that many Nicaraguans who have come to Canada do not appear to suffer a well-founded fear of persecution, and that they were accepted for landing in Canada while many urgent cases in Salvador and Guatemala were rejected summarily, our sentiments regarding this development must be directed at the Canadian Government, not at individuals who saw an opening and quite understandably took advantage of it. Chapter 4: The Refugee Process Described In this chapter we examine the refugee determination process as described in official government documents. We will show that guidelines given to consular officials lead to a confusion between the determination process for refugees and that for regular immigrants. We will also show that on certain key points the governments interpretation of the definition of a refugee differs from that of the United Nations itself. The following chapter will examine the refugee selection process in practice. We will see that there is a significant gap between the selection process on paper and in practice. The refugee determination process operates according to two criteria. In the words of the Immigration Manual: Selection and Control, there is a two-step process: a) An eligibility determination to establish whether the applicant comes within the definition of either a Convention Refugee or a class designated by the Governor in Council; and b) An admissibility determination to ascertain whether the applicant is capable of successful establishment in Canada and meets other statutory requirements1. The other statutory requirements include medical and security checks. Though the process is described as having two steps, in practice the steps are clearly intertwined. There is in fact a preliminary application of the successful establishment criterion prior to the evaluation of the applicants refugee status2. On the following page we present a copy of the main Algorithm, or flow chart, that consular officers are supposed to follow in deciding on a refugee case3. The reader can note that the determination of the applicants refugee status [the box labelled Does applicant meet 6(1) or 6(2) eligibility criteria] occurs several steps into the process. We will examine this process in three parts: i) The preliminary determination ii) The main determination iii) The security and medical checks 4.1 The Initial Determination According to the official flow chart, the refugee application process begins with the submission of an immigration application form4. In Chapter 5 we will see that in fact some refugees have to undergo many trials before they can even reach this starting point. An initial determination of the applicants status is then made: When an immigration application is received from any person claiming to be a refugee, he is normally called in for interview unless: i) There is conclusive evidence from his application form that he would be totally incapable of successful establishment in Canada; or ii) There is a reasonable chance that he will be voluntarily repatriated or locally resettled in the near future5. Thus a person can be refused an interview before any examination of his or her refugee situation has been made. We present some quotations here from the Governments Guidelines -- Application of Criteria for Potential Establishment6: Officers will assess previous work history to determine if the applicant has skills and experience which are reasonably transferable to the Canadian workplace. The prospects for successful establishment are considerably enhanced where employment in the applicants present or intended occupation is growing rapidly and where large labour surpluses are not likely to develop. Applicants with experience in occupations requiring higher levels of skill and education would normally experience less difficulty in finding and maintaining stable employment. Immigrants with higher levels of education find it easier to settle successfully and are more economically mobile and flexible. Officers will determine the applicants working knowledge of either French or English. Officers should assess such factors as the applicants adaptability, motivation, initiative, resourcefulness or other personal qualities which may have a positive or negative bearing on his/her potential for successful establishment in Canada. Officers will consider the number of family members who are dependent on the applicant for support... A number of questions might be posed regarding these guidelines: i) Does higher education really correlate with greater mobility and flexibility and with more transferable skills? Is it really easier, for example, for a lawyer from Central America to establish in Canada than a blue collar worker? We will examine this question further in Chapter 5. ii) Is the criterion of rapidly growing demand for the applicants skills aimed at ensuring successful establishment or at preventing refugees from exacerbating employment problems in Canada? iii) How on earth does an officer measure resourcefulness, motivation etc.? Are officers given more concrete guidelines with respect to these subjective criteria? But the most important question to be asked at this stage is what constitutes conclusive evidence of total incapability to establish in Canada. Are officers given more explicit instructions in this regard? In theory the question should not be important as the guideline seems so strict (conclusive evidence, totally incapable) that one would not expect to find this factor applied often. Nor is it clear how the second cause for summary rejection is to be applied. How does an immigration officer evaluate the reasonable chance of repatriation or local resettlement? Is this done on the merits of the individual case, or by following general formulae such as Central Americans can be resettled locally but Eastern Europeans cannot7? It would seem that the latter is the case, since the normal immigrant application form would not give the officer sufficient information on which to evaluate the specific case. Thus there are two criteria according to which an application may be rejected before the applicant has had a chance in an interview to explain why he/she has a well-founded fear of persecution. As we shall see in Chapter 5, such summary rejections are frequent, running as high as 80% in the Canadian Embassy in Guatemala. 4.2 The Main Determination Applicants who clear the hurdles outlined in 4.1 will be called in for an interview, the goal of which is to determine whether they fit the refugee definition8 and to make a fuller decision with respect to successful establishment. The heart of the interview should be an evaluation of the applicants claim to have a well-founded fear of persecution9. The Immigration Manual has three pages of guidelines for the application of the Convention Refugee definition10. We examine two troubling aspects of these guidelines here: i) Persecution by whom? Among the examples of persecution given are torture, threat to life, liberty and security, arbitrary arrest, continued harassment if perpetrated by the government or police authorities on the grounds mentioned in the refugee definition. It is thus implied that such acts, if not perpetrated by the government, do not constitute persecution for purposes of the refugee definition. This implication contradicts an interpretation hidden in a different Immigration Manual11, which notes: It will still constitute persecution, however, if the perpetrators are other nationals, whose actions are tolerated by the authorities in such a manner as to leave the person concerned virtually unprotected. The Guideline definition of persecution also contradicts the United Nations guidelines on the interpretation of the Convention on Refugees, which state that12 Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection. The interpretation that restricts persecution to that perpetrated by government forces can of course be used to dismiss the claims of Central Americans who cannot prove that death-squad crimes are attributable to government authorities. We will see in Chapter 5 that some refugee claims have been rejected on this basis. ii) The political opinion clause One can be classified as a refugee on the basis of a fear of persecution owing to ones political opinions. The guidelines give a restrictive interpretation of this factor: Political opinion includes anyone who is persecuted on the grounds of his alleged or known opinions contrary to or critical of, the government or ruling party. The Convention is not intended to protect any person who commits a crime or uses violence beyond that necessary for the defence of his life. Terrorists and criminals fleeing prosecution are therefore not protected. [IS 3.24] The Government guideline just cited misrepresents the U.N. Convention when it states that The Convention is not intended to protect any person who commits a crime or uses violence beyond that necessary for the defence of his life. In fact the Convention states that its protections shall not apply to those guilty of a crime against peace, a war crime, or a crime against humanity or of a serious non-political crime13. Nowhere does the Convention state that it does not apply to any person who commits a crime. By referring to crime and criminals, the clause obscures the fact that in some situations almost any action on the basis of opinions contrary to or critical of, the government or ruling party may be illegal. Thus the clause could define as criminal and therefore unprotected by the refugee definition a person who had participated in union activities where those were illegal. It appears that, in practice, consular officials apply the criminality exclusion only to those who commit acts that in Canada would be considered crimes. This practice is consistent with Article 19 of the 1976 Immigration Act. Nevertheless, the guideline is mistaken and should be revised in accordance with the U.N. Convention. If the applicant is classified as a refugee, the determination process moves on to a fuller decision with respect to successful establishment. This process is similar to the determination for regular immigrants: the officer will take into consideration all of the factors used in assessing independent (all criteria) immigrants but will not assign points14. It is suggested, however, that these criteria be applied in a more relaxed fashion for refugee claimants: the officer should make allowances for the fact that because of his situation, the refugee may not be as knowledgeable about Canada or as psychologically prepared to begin a new life for himself as other immigration applicants. It is also advised that in cases where the applicant has a sponsor in Canada the language and education criteria be applied more loosely. However, the Manual adds,15 the officer must be convinced that, in the long term, the refugee will have the earning capacity to support his family and will not be dependent on welfare indefinitely. Thus the main objective of the successful establishment criterion appears to be to ensure that refugees do not become a burden upon Canadas welfare system. We would question what place such a concern has in a humanitarian refugee policy. We feel that a true refugee policy would select those most in need as refugees, those with the most serious fear of persecution, and then ensure to the degree possible that they be helped to attain independence and dignity in Canada. 4.3 The medical and security checks Upon approval at the interview stage, the applicant moves to the final steps, the medical and security checks. These steps are common to all immigration applicants, not just refugees. The medical check lumps together a medical and economic evaluation of the applicant, who is to be evaluated with respect to Risk to Public Health or Safety, Expected Demand on Health or Social Services, Potential Employability or Productivity, among other factors16. When these criteria are applied to the case of the refugee, Canadas economic interests once again influence its refugee selection process. The security stage is, as one might expect, shrouded in secrecy, and hence difficult to examine critically. Most of the guidelines for consular officials are in a restricted chapter IC1. It is considered a breach of security even to let applicants know that a security check takes place17: While Commission officials may refer to the background inquiries carried out by the Commission, it is considered a breach of security to discuss specific details of the security screening process. All correspondence containing the terms security screening, security clearance, or any other term which might identify it as a security matter, will be classified confidential. The Immigration Manual notes that the term security screening refers to the scrutinization of the applicants political orientation, belief and activities, the goal of which is to maintain and protect the safety and good order of Canadian society18. The screen should exclude those guilty of subversion against democratic institutions or processes as they are understood in Canada, but not those who may attempt to subvert non-democratic regimes. It is not stated which department of the Government is responsible for determining which regimes are democratic and which are not. The Manual also notes that Security screening decisions are based on information from every available source. This will normally include the police and security forces of the country from which the refugee is fleeing. Thus, as part of the refugee determination process for a Salvadoran who has been tortured by Salvadoran security forces, offices of those forces will be asked to offer information on the refugees political orientation, beliefs and activities. We will see in Chapter 5 that the proportion of refugee applicants excluded on security grounds is minuscule. The main problem in practice with this stage of the determination process is that it creates great delays. We return to this point at the end of Chapter 5. Chapter 5: The Refugee Process Observed In this chapter we will present the results of many interviews with Central American refugees and with those who counsel them in their attempts to gain entrance to Canada. Though each person with whom we spoke had but a partial perspective of the overseas determination process, taken together their information provides a reasonably complete picture of the situation. We will also include some analysis based on data provided by Employment and Immigration Canada. Throughout the chapter we will repeat comments attributed to Canadian officials by our interviewees. It will be objected that we are relying on hearsay. This is absolutely right, and we know of no other way of proceeding, short of planting microphones on refugee applicants, which we have neither the resources nor the inclination to do. The use of second-hand information is vitally important to get a sense of how the refugee selection process is experienced by those passing through it. We have taken great care to corroborate information given to us by the interviewees. In general, information about any particular Canadian official given by independent sources tended to be consistent. Nevertheless, because we are dealing with second-hand information, we will not name any Canadian officials, and we have tried to provide as few clues as possible as to the identity of individuals. This safeguard may give some of the information presented in this chapter an air of excessive generality. We believe, however, that the reader will come away with a clear picture of how the refugee selection process is working in practice. 5.1 A Question of Quotas Before examining the stages of the refugee process, we must address the problem of quotas1, which affect the refugees chances at each stage of the determination process. Canada officially does not have absolute quotas on the number of refugees it will accept in any given year. Nevertheless, there are limits placed upon the number of refugees for which the federal government is prepared to be fully responsible2. These government sponsored refugees tend to represent a little over half of refugees admitted, the rest being made up of private sponsorships, special program landings, and other categories3. For many refugees without access to private sponsoring organizations, government sponsorship is the only path open. Thus the refugees chances of success will depend on the state of the numbers game at the consular post to which he/she applies. The Canadian Governments global quota for government-sponsored refugees is broken down by region. For 1988 the global quota is 13,000, and Latin Americas share is 3,400. Latin Americas quota, in turn, is broken down by consular post. The consular quotas are presented in Table 1. Table 1 Latin American Refugee Allocations Breakdown by Consular Post 1988 Consular PostQuotaShareSan Jose1,27538%Guatemala45013%Mexico42513%Dallas41012%Atlanta40012%Santiago1755%Los Angeles1655%Unallocated1003%Total3,400100% [Source: Employment and Immigration Canada] One can see that from the Table that the quota is divided between just seven posts, with 3% of the quota left unallocated. One can also note that only three consulates in the U.S. have any quota at all. Yet there are twelve consulates in the U.S., and all of them receive applications for refugee status in Canada. The non-quota consulates in the U.S. deal with inquiries concerning refugee status in markedly different ways. Some of them, according to refugee counsellors, will not send out an application form to a person who has not already arranged private sponsorship. Others have told refugee counsellors that they can call upon the unallocated part of the quota, but that they do not wish to waste that part of the quota on weak cases. One non-quota consulate, however, seems to be quite ready to call upon the unallocated quota. A refugee counsellor told us: Every one we refer to the consulate gets an interview, and many are accepted. In those consulates where there is a quota for Latin American refugees, the numbers game imposes strange patterns on the selection process. Refugee counsellors in touch with various consular posts made the following remarks: Theres a big rush at the beginning of the year. We get 90% approval at this point. But its much harder when they get near the end of the quota. Weve had to wait until the next year because the quota was filled. At one time of year we get 90% acceptance; at another point just 15%. The consul tells us Get your applications in as soon as possible, because my quota is getting filled. One embassy in the Central American region filled its 1987 quota half-way through the year. A backlog of about 100 cases was held over to this year. This has led to a very stringent interpretation of the refugee criterion: as an official at this embassy commented to a researcher If you havent had real physical problems, we dont have space for you. While some consular officials try to find ways around the quota constraints others seem to quite enjoy playing the numbers game. One refugee counsellor, who works with detained Central Americans in the U.S., told us of a consular official who arrived at the detention centre and said Give me your four best cases. Other officials seem to find their consulates lack of a quota a convenient manner to minimize their dealings with refugee cases. One question on which our interviewees disagreed is whether quotas exist for specific national groups. Most felt that the quotas were administered by consular post only. But others gave the following reports: We were told in early 1987 that the quota for Guatemalans is filled until 1989. He said to us Every year we have a limited number we can accept. We can receive only so many from El Salvador, so many from Guatemala and so many from Nicaragua. Whether quotas are applied to specific national groups or not, it is clear that consular officials operate under a rigid quota system that imposes a highly arbitrary character upon the refugee selection process. Refugees who lose out in the numbers game may not even receive an application form to begin the selection process. In the face of widespread reports concerning the impact of quotas on the selection process, the assurances of government officials that selection operates on a case by case basis seems at best naive and at worst deliberately misleading. The limited quota for Central American refugees, and the fact that the demands placed upon that quota are so great, increases the importance of making sure that those few who are selected in the Canadian process are those most at need. Unfortunately, we will find that there are serious inconsistencies at each stage of the determination process that introduce a large degree of arbitrariness into that process. 5.2 Getting to Square One: The Problem of Access The flow chart of the refugee selection process presented in Chapter 4 looks complicated enough, but it tells only part of the story. The official flow chart begins with Potential Refugee Submits IMM8". But for many Central Americans, getting their hands on this immigration form is itself no easy matter. In El Salvador, persons seeking refugee status in Canada must go to the offices of the Intergovernmental Committee for Migration (ICM). Canadian consular officials visit El Salvador once a month, and interview applicants in the ICM offices. The choice of the ICM office as a locale for consular activities is unfortunate, as in El Salvador the organization is seen by many as being aligned with the U.S. and with the Salvadoran Government. A 1988 report of the Central American Refugee Center in Washington, D.C., notes4 : Since 1984 the ICM has implemented a controversial reception project for refugees forcibly returned to El Salvador from the United States. Human rights organizations have charged that ICM has allowed its program, which is funded by the U.S. Department of State, to be used in the United States to justify continued deportations to a war zone, in violation of both international law and humanitarian principles. Nevertheless, ICM officials have been eager to participate in refugee resettlement projects and show no hesitation to work closely with the Salvadoran government. Given this profile of the ICM, some Salvadorans may hesitate to make the initial approach to begin the refugee process. Those who do visit the office may have to explain to a Salvadoran staff-person the reasons for their visit. Salvadorans interviewed expressed concerns that this procedure might put their security at risk. One commented: People are afraid to use the word refugee, because they feel that will mark them as opponents of the government. If they do not use the word, however, they are unlikely even to be given an application form, and their attempt to gain refugee status in Canada has come to an early end. Canadian consular officials react to these concerns with suggestions that seem rather naive. One advised a refugee worker: Tell them to put their story in a sealed envelope and deliver it to the ICM building. They should ask that the envelope be put in the safe until the consular officials arrive. It is obviously difficult for a Salvadoran at risk to believe that this request will be honoured by the ICM support-staff. A case was reported to us in which a man who had been attacked and had had to go into hiding arrived at the ICM office seeking to begin the refugee application process. Though he still bore the bandages from the attack, he was told that he needed to be sponsored by a family member in Canada and was turned away. He thus had to go into hiding for another month, to try again before the following visit of the consular official. This person was eventually accepted as a refugee. Responding to complaints about his initial treatment at the ICM building, a Canadian official commented that He was turned away by a low-level employee. But of course this is precisely the problem: a low-level employee has been made a gate-keeper to Canadas refugee determination process. Apparently the treatment of potential refugees will be better if they have been referred by the United Nations High Commission for Refugees (UNHCR) or by certain other agencies, but this mechanism itself presents certain difficulties. One refugee counsellor told us: Weve had Canadian officials tell us to tell Salvadorans to go to the UNHCR office, so as to get a referral to the Canadian consul. But they might wait there for days without being attended to. This poses quite a security risk for the individuals involved. Obviously individuals hesitant even to use the word refugee will think twice before making repeated visits to an office whose only function is to deal with refugee concerns. It appears that certain consular offices will not give the person an application form to begin the process unless that person has been referred by the UNHCR or another agency. But it is not always made clear to the would-be refugee which are the acceptable referring agencies, or even that a referral is necessary. It seems also that certain consular officials apply the successful establishment criterion even before the determination process officially begins: cases have been reported of single mothers and handicapped persons being refused application forms. The Canadian Embassy in Guatemala tends to be guarded by Guatemalan police. A refugee counsellor told us: I know of two Guatemalans trying to get into the Embassy who were stopped three times by the police. People have to bribe police to get in, and then they have to tell their story to a Guatemalan. Refugee counsellors told us that a Canadian who previously worked at the Embassy was willing to meet with would-be refugees outside the Embassy building in a safe spot and went to great lengths to make himself more accessible to people. It is reported that current officials have discontinued this practice. Nicaraguans who had applied for refugee status while living in Honduras told us they had met with a consular official from the Embassy in Guatemala who visited Tegucigalpa every three or four months. They expressed no concerns about possible risks involved in making contact with Canadian officials, and noted that the meeting took place in a Canadian office with no external markings. They said that there were no police or soldiers in the vicinity of the meeting place. We did not interview Central Americans of other nationalities who had applied from Honduras. Thus access to the Embassy in Guatemala appears quite uneven for would-be refugees from different countries. This may explain why the vast majority of those who fill out a Pre-Application Questionnaire in Guatemala City to begin their refugee application process are Nicaraguans, as Table 2 shows: Table 2 Pre-Application Questionnaires Filed Guatemala City Embassy 1987 Nicaraguans91864.60%Guatemalans31722.30%Salvadorans1218.50%Hondurans604.20%Other50.40%Total1,421100.00%[Source: Data supplied to Canada-Caribbean-Central America Policy Alternatives by the Embassy] It is interesting to note that Nicaraguans beginning the application process outnumber Salvadorans by more than 7 to 1, though within the territory covered by the Embassy there are far more Salvadoran than Nicaraguan refugees5. Refugee counsellors complained of problems of access in Mexico: You have to state your business to a receptionist through a window; it is quite difficult to get an appointment to see a consular official. The officials tend to make themselves scarce; its hard to get through on the telephone, and harder to get an appointment. The situation for those who seek to apply to a consulate in the United States is variable. A refugee counsellor who has worked with a consulate in the Northern U.S. noted: Its very difficult for the person who just walks in trying to get information: there are no signs in Spanish, there are no Spanish-speaking staff; the person is given a form in English to fill out. We have asked officials to refer Central Americans to us so that we can explain the process to them, but so far they havent done so. Refugee counsellors who work with several other consulates, however, told us that Canadian consular officials regularly refer Central Americans to their counselling agencies. This laudable practice ensures that the applicant has access to competent advice before beginning the refugee determination process, and may help put the applicant in touch with a private sponsoring group in Canada. We were very impressed with the competence of the refugee counsellors in the U.S. with whom we spoke, and many of them maintain friendly relations with Canadian consular officials. Nicaraguans with whom we spoke, however, complained of an individual in one Southern U.S. city who enjoys the trust of the local consul and who charges Nicaraguans $500 to get them an application form for the refugee program. One common problem in the U.S. is that of detained Central Americans. A refugee counsellor in the Southern U.S. told us that consular officials visit the detention facility in her city once every five months, which makes it difficult for detained persons to undertake the determination process. In Southern Texas there is a border area in which many undocumented Central American migrants are concentrated, and which they cannot leave without permission of the INS. It is apparently difficult even to get permission to leave for a day for an interview at the nearest Canadian consulate. Consular officials used to visit this area once a month or so, but visits are currently as long as a year apart. These patterns of visits may reflect limitations of human resources, and several interviewees give the impression that such limitations are becoming more problematic. This may explain why one consulate in the Northern U.S. has become much more reluctant even to give out application forms for refugee status6. Though there are few consular officials currently working in Central America, there are rumours of planned cutbacks. In summary, there is a highly uneven degree of access to the preliminary stage of the refugee selection program. In some countries this access is fraught with risks, in other places less so. In some consulates officials seem anxious to steer the applicant towards the starting gate, in others the goal seems to be to avoid having to deal with applications at all. 5.3 Getting an Interview If the individual has had good fortune to this point, he/she receives a form to begin the application process. But it is often not the IMM8 form with which the refugee selection process is supposed to begin according to the Immigration Manual. In many consular posts a practice has developed of giving would-be refugees a pre-application questionnaire before allowing them to have the official application form. There appears to be no authorization for this practice in the Immigration Manual or in any other regulations7. An Employment and Immigration official with whom we spoke said that there was no policy regarding the use of such questionnaires, but that this usage is accepted by Ottawa. The use of pre-application questionnaires adds another element of caprice to the refugee selection process, as each consular post is allowed to develop the type of questionnaire it chooses, and thus the formats vary widely. The form currently used in Guatemala is three pages long. The first two pages are clearly a questionnaire for general immigrants. Would-be refugees are asked how well they speak English and French, how much money they plan to invest in Canada, whether they plan to establish a business here, etc. In short, they are asked whether they will make good immigrants. The final page of the Guatemalan pre-application form does have a refugee-oriented question. The applicant is asked to explain The reasons why you felt a need to abandon your country. The word refugee does not appear, and there is no spot on the form where the person can indicate a desire to ask for refugee status in Canada. In Mexico City, on the other hand, the pre-application form focuses more on the persons claim to be a refugee. Applicants are asked whether they have sought refugee status from the UNHCR, and why they had to leave their country. The only questions that might relate to the successful establishment criterion are Marital Status, Number of Children, and Age of your Children. Thus while the Guatemalan pre-application form focusses on whether the would-be refugee would make a good immigrant, the Mexico form examines the persons claim to be a refugee. The pre-application forms allow consular officials to weed out many refugee claims before the applicant has had a chance to fill in an official application form. The following data, from the Canadian Embassy in Guatemala, shows that the pre-application stage is the most difficult hurdle for the would-be refugee to pass: Table 3 Failure Rate at the Pre-Application Stage Guatemala City Embassy (1988) ApplicantsApplicantsReceivingReceivingPre-ApplicationOfficialQuestionnairesApplicationFailureFormsRateNicaraguans4988083.9%Guatemalans1493973.8%Salvadorans521963.5%Hondurans31293.5%Total73014080.8% [Source: Data supplied to Canada-Caribbean-Central America Policy Alternatives by the Embassy] Thus, four-fifths of would-be refugees are being eliminated from the refugee selection process before they have even filled out an application form. Whereas the Immigration Manual indicates that would-be refugees should generally be given an interview, in practice they are often not even given an official application form. This practice is clearly a response to limited human resources. The Department of External Affairs has just 298 Immigration Program officials in its sixty-four embassies and consulates in the world8. Of these, sixty officials are concentrated in three posts9. There are only twenty-one immigration officials in the six posts through which the bulk of Central American refugees are processed10. Were these officials to follow the Immigration Manual guidelines carefully, giving interviews to the majority of people who indicated a desire to claim refugee status, they would spend a significant amount of their time interviewing refugee cases. The use of pre-application forms to eliminate many would-be refugees before they can even begin the selection process is an arbitrary and ad hoc solution to this real difficulty. It is clear, therefore, that Canada cannot have a just and consistent refugee selection process without devoting the necessary human resources to that task. The present level of staffing encourages arbitrary solutions to the problem of excessive case-loads, independent of the good will of many consular officials. If the rumoured cut-backs in staffing the Central American region take place, the refugee selection process will be further weakened. If the refugee has solved the problem of access to Canadian consular posts, and if he/she has cleared the pre-application hurdle in place in many posts, the official selection process now begins. That is to say, it takes tremendous luck to get to the first box of the official flow chart presented in Chapter 4. At this point one fills in the IMM8 form, which is standard for all immigration applicants, not just refugees. Once again the applicant answers a number of general immigrant questions, and once again there is no place on the form to even hint that one is seeking refugee status. One then waits to see if one can advance to the next stage. Reports from different areas indicate to us that the applicant will wait between one and four months to find out whether an interview has been granted. This waiting period may be reasonable for a regular immigrant, but it is very long for a person whose life may be in danger, or who may be in detention in the U.S. Those not granted an interview will often be informed in a fashion that would have made Kafka proud: a person who has asked for refugee status will be sent a letter that talks about everything but refugee status. The following is a translation of a form letter sent by the Canadian Embassy in Costa Rica to a person who had requested refugee status11: Dear Sir/Madam: We thank you for the information you gave us regarding admittance to Canada. We have studied this information carefully and have taken into account the demand for work that currently exists in Canada. We are sorry to tell you that at this time there is no possibility that your request for permanent residence in Canada can be accepted. Your case can only be reconsidered if you proceed in the fashion outlined in the following paragraph. You have informed us that you have a relative living in Canada and that you believe this relative could give you the necessary help in Canada. If you wish, and if your relative agrees, he or she can go to the Canada Immigration Centre nearest to his/her place of residence in Canada, in order to undertake the procedures to support the application that you have presented. The official in charge of that Immigration Centre will decide whether the guarantees offered by your relative are acceptable. While we cannot assure you that your request will be accepted, on the basis of your relatives guarantees we could reconsider your case. In the event that you decide to proceed in the manner explained above, your relative should present this letter in our offices in Canada as a proof that you have made a request for permanent residence at this office. The letter is quite blunt: the officials have taken into account the demand for work that currently exists in Canada. The individual has been refused an interview on the basis of the successful establishment criterion. While there is provision for this in the Immigration Manual regulations, the number of applicants who never get an interview suggests that consular officials are refusing interviews on the basis of much less than conclusive evidence that the applicant is totally incapable of successful establishment in Canada12. The letters reference to relatives in Canada is in many cases a cruel joke. The application form asks whether the candidate has relatives in Canada, not whether they are landed immigrants or citizens of Canada. Thus the applicant may have a relative here who is going through the refugee determination process, and the Embassys letter creates the illusion that such a person could help the applicant come to Canada. Thus many individuals who seek refugee status in Canada never get to state their case in an interview. They are either screened out in stages of the application process that do not even exist in the public immigration regulations or are excluded on the basis of a misuse of the successful establishment criterion. Some of these refusals have tragic consequences. In 1987 a man whose brother and cousin had already been murdered applied for refugee status in El Salvador, along with his wife. The two sent in identical background letters explaining their situation. The wife was told that she could only be accepted if she could find private sponsorship in Canada. The man, however, was refused outright and did not get an interview. The man was murdered in September 1987. 5.4 The Interview Stage: Admissibility Refugee applicants who are not screened out at the beginning of the process are called in for an interview to determine their eligibility as refugees and their admissibility (their likelihood of successful establishment). Interviews range from twenty minutes in some consulates to three hours in others. As we noted in Chapter 4, the successful establishment criterion is applied at two points in the determination process: before granting the applicant an interview, and in the interview. While some interviewees reported that questions about the persons refugee claim dominated the interviews, others reported a very different focus: We get some questions on the persons refugee claim, but the bulk of the questions deal with establishment in Canada: What kind of work will you want to do? What are your plans? Do you want to go to school? The interviews focus on education and work: that is clearly the essential thing. Many interviewees had the impression that the refugee selection process is being seriously distorted by the application of occupational and education criteria, and that refugees are being evaluated more or less as standard immigrants: If people have a low education level, they are often excluded. With third grade or below, forget it13. We were told by a high official at a meeting that You must never forget: there is only one immigration policy. Nicaraguans with whom we spoke told us that: The consul told us that the needs of Canada are always taken into account first. There are Nicaraguans who are really suffering hunger in Honduras, but they wont get into Canada if they are just workers. The excessive importance given to normal immigration criteria within the refugee selection process is one factor explaining the growing preference for Nicaraguans since 1985. The Nicaraguan situation, unlike those of Guatemala and Honduras, has generated a large number of self-exiles who are professionals. Thus, in choosing Nicaraguans, Canadian consulates can pick from a relatively well-trained pool of potential immigrants14. Table 4 gives the class profile of Salvadoran, Guatemalan and Nicaraguan immigrants in 198515: Table 4 Intended Occupations, Aggregated by Class For Working Immigrants 1985 Upper WhiteLower WhiteBlueCollarCollarCollarEl Salvador13.90%35.70%50.40%Guatemala12.30%41.60%46.10%Nicaragua31.90%35.00%33.10% [Source: Employment and Immigration Canada, Immigration Statistics: 1985] Apart from helping explain the growing popularity of Nicaraguan refugee applicants, this data also suggests that the Canadian selection process may be systematically overlooking the Nicaraguans who most clearly fit the refugee definition. We saw in Chapter 3 that the most serious concerns of human rights organizations regarding the situation in Nicaragua focus on human rights violations of the contra. These actions occur primarily in rural areas. Human rights organizations have also expressed concern regarding actions being carried out by [Government] military personnel in remote areas undergoing armed conflict. Again, the problem is focussed in the countryside. Human rights concerns in urban areas are of a different degree: for example irregular patterns of detention. If the selection of Nicaraguans were really guided by the well-founded fear of persecution criterion, then, one would expect to see above all peasants who had been threatened by, or who had relatives killed by, the contra. There would also be a smaller number of peasants who feared persecution from government forces, on the basis of some prior experience in a remote area. What we find instead is an immigrant class pattern that resembles that of Eastern European refugees, with a high proportion of well-educated persons. This raises an interesting question: is Canada unconsciously contributing to a brain-drain in Nicaragua? One might say Of course not, Canada is merely selecting people who have already left Nicaragua and who have no intention of returning there. But the matter is not so simple. Many Canadians living in Nicaragua have been approached by literally hundreds of Nicaraguans with more or less the same question: I have a friend (brother, brother-in-law, etc.) who just went to Canada. How does one go about doing this? When one inquires of the Nicaraguans the circumstances of the case, one is usually given a description of a white-collar family with no involvement in politics and no history of problems with the Nicaraguan authorities. The very fact that so many Nicaraguans are aware of this possibility provides an incentive for many to leave Nicaragua and try their luck, either by using the overseas selection process or by coming directly to Canada to ask for refugee status. Thus the Canadian policy towards Nicaraguan professionals who have already left their country may encourage others to leave. The reverse side of the coin of the application of the successful establishment criterion by Canadian consular officials may be a more serious brain-drain in underdeveloped nations. One might argue that this is a natural outcome of the decision to ensure that all immigrants be capable of successful establishment in Canada. But what should this phrase mean in practice? Both the Immigration Manual guidelines and the practice of consular officials equate the potential for successful establishment with higher levels of education and occupational experience. Is this a reasonable interpretation? Many of our interviewees hold that it is not. They argue that many refugees who might be regarded by the Government as having less potential for establishment are in fact more successful once they are here: We have found it much easier to settle people with less education, because their expectations are more realistic. With professionals, we get cases of serious depression because they cannot enter their profession and have never been poor before, whereas some of the less-educated refugees are used to getting by. Ive known people who are illiterate and have no skills, and have done alright. Those with professions who cant practice them here have more trouble. Our meeting with the Nicaraguan refugees was instructive on this point: all were professionals, but none of them is practicing his profession in Canada. One doctor said, quite realistically, that they have zero hope of working as doctors. They constitute some of the most highly trained floor washers and painters on earth. We thus have the absurd situation in which a doctor is preferred over a laborer because of a supposedly superior capacity to establish in Canada, and then comes to Canada to work as a laborer. The doctor experiences a sharp downward shift in his class position, Central America loses a doctor, and Canada gains a janitor. All in the name of humanitarian and compassionate policies. This is not to say that a doctor or an engineer with a well-founded fear of persecution should not be admitted to Canada as a refugee. But it is a gross distortion of the refugee selection process to choose a doctor with little fear of persecution over a blue-collar worker in great danger. Yet this gross distortion appears to be commonplace in the selection of Central American refugees. The experience of refugees who have come to Canada gives us reason to question the whole relation of the successful establishment criterion to refugee selection. It is clearly very difficult to predict the potential for success beforehand on the basis of a limited number of criteria. As one Canadian church official has pointed out: The Afghans have become a strong and self-sufficient community in the larger centres, especially in Toronto. The Tamils have adapted well in Canada. These groups, which could have been misjudged apriori as being difficult to settle, have been, in fact gratifyingly successful. Given the problems in the application of the successful establishment criterion and given the great urgency of the situation of those refugees at greatest risk, we must once again classify the current use of this criterion in the refugee selection process as a lack of faithfulness to our international moral obligations. There is a simple alternative to the current practice. Instead of choosing from the pool of applicants those with the best occupational and educational background, consular officials should choose those most at risk or most in need of resettlement. A minimum successful establishment criterion could then be applied to this group. For cases of exceptional risk, even someone who failed to meet this minimum test could be admitted on compassionate grounds. This would mean that no person could be rejected for failing to meet admissibility criteria at any stage (pre-application or paper screening) prior to a determination regarding the strength of that persons claim to be a refugee. This procedural change would constitute a substantial shift in the logic of the refugee selection process and would bring that process into line with our moral obligations. 5.5 The Interview Stage: Eligibility It is no easy task for a consular official to establish the validity of the applicants claim to have a well-founded fear of persecution in his/her native land. The handling of this aspect of the interview varies widely from one post to another: The questions about the persons refugee situation never get very detailed. Sometimes they seem to have decided beforehand, even before we begin the interview. Other times they go into great detail. He would systematically tear apart cases, saying if things are so bad, how come youre not dead? A crucial factor in arriving at the truth of the applicants situation is the atmosphere created in the interview by the consular official. We will quote at length from the U.S. District Court decision cited in Chapter 1. Although it addresses the situation in the U.S., it sheds light on the psychological situation of Central American refugees: Many Salvadorans are extremely reluctant to communicate their traumatic or difficult experiences in El Salvador. This reluctance is based in part on a psychological response to the trauma they experienced or the shame or guilt many feel as a result of surviving and abandoning their country and their families... Many Salvadorans are also reluctant to communicate what happened to them in El Salvador because they fear that the information could be used against them or that revealing the information might endanger family and friends who remain in El Salvador... Many Salvadorans will only relate the totality of what happened to them in El Salvador to someone with whom they have established a relationship of trust and confidence. They are most likely to be open and forthcoming with an individual who is not connected with the government or does not represent authority but rather appears to represent a relief or advocacy organization, although they may tell their fears to any person who demonstrates the strength and sensitivity to handle the information. Certainly many Canadian consular officials have the capacity to demonstrate this strength and sensitivity. Many refugee counsellors with whom we spoke were quite appreciative of the treatment given by consular officials to refugee applicants. Some positive statements were: The official in our area is very humane. We have been pleased by the thoroughness of the interviews. The official is hard-nosed, but fair. The vice-consul has tried to do what he could. Hes done a lot to work with a very difficult system. The treatment of the refuge is excellent, very cordial. They are very good people, much better than ours [the U.S. officials]; they give us a good chance to explain the situation in the refugees country. Other refugee counsellors expressed concerns about treatment in certain consular posts, however: The official interviews everyone as if she was going to have to receive them into her own house, at her own expense. The official is contemptuous of the refugees. He tells people right out Youre lying. People get very intimidated. He would say to single mothers: Why are you people like that, why do you have so many children? He asked the woman whether she had been raped. She was ashamed, and said no. Then he said So you lied to us, because here on your form you claim you were raped. Ive stopped bringing people to him. He makes light of peoples suffering. So I thought it was crazy for refugees to wait three to four months for an appointment just to be insulted about their suffering. She had been posted in -----. She said there had been a lot of fake refugees there, and she wasnt going to be fooled by any here. He said to the applicant: If you join the army you might get killed. Everybody knows that. So youre afraid to die serving your country. But youre not a refugee. They sure have a lot of power in their hands. We had a case turned down because the official didnt get along with the interpreter. Right in front of the refugee he tells me We cant afford to let all these people in. Many times I just wanted to leave the interview. But you cant, you have to put up with it all, because youre seeking asylum for someone. This last statement reminds us of the power of consular officials and of the impotence of the person going through the overseas selection process. We are reminded of the advice given to Aeschyluss suppliants 2,500 years ago as they prepared for their own interview with the King of Argos: Let nothing bold attend your voice, and nothing vain come forth In glance but modesty and reverence Not talkative nor yet a laggard be in speech: Either would offend them. Remember to yield: You are an exile, a needy stranger, And rashness never suits the weaker. Though many consular officials appear to deal with this situation of power humanely, others are clearly abusive. Once again, the variety of personal approaches on the part of consular officials adds a strong element of caprice to the overseas determination process. Apart from the different types of treatment accorded to the applicant, consular officials vary sharply in their application of the refugee definition. One refugee counsellor complained that: Certain officials wont look at people until theyve actually suffered persecution. These are the only true refugees. The well-founded fear is not enough for them. But of course a lot of people dont want to stick around in their country long enough to become true refugees16. Some appear not to believe that real refugees exist. One refugee counsellor, speaking of a consular official, told us: Hed been posted in two countries in Africa where there are lots of refugees. He said to me one time Ive never met a real refugee, what are they like? Such officials, when faced with a real refugee, do what they can to keep their world-view intact: There was a guy who worked for a church as a truck driver, bringing food and medicine into one of the war zones. After a lot of the people he worked with had been murdered, he left his country and sought refugee status. The consul told him that You were only in danger because of your work, why didnt you just change jobs? Some officials indicate a near-total lack of understanding of the serious situation of refugees. A Toronto Star article on a Canadian official posted in Central America noted17: He often recommends unsuccessful applicants return home, especially if family members are still there. People live there, after all, he says, Maybe not how we would like, but still... He believes most Central Americans find northern cold hard to take. Certain officials also seem to have an image of the true refugee as a well-educated person with clearly articulated objections of conscience to the regime in their country of citizenship. One official was quoted as saying, in the presence of the refugee applicant: Hes just a plumber, how is he at risk? He doesnt meet the definition. Later in the interview, he commented: He cant tell his story because he cant even speak in English. Thats obvious. All I see here is a poorly educated plumber who is looking for something better. One problem for refugee applicants has been the identification of the source of their well-founded fear of persecution. As we noted in Chapter 3, the Immigration Manual is ambiguous on the question of whether the applicant must fear persecution from the government itself. This ambiguity has serious implications for Central American refugees, as many acts of state terror have been performed by officials out of uniform. Consular officials have at times used this ambiguity to turn down valid refugee claims. One case was turned down because it was held that the applicant had been threatened by a right-wing party, not by the government, and that he could not prove that he could not avail himself of the governments protection. In another case, a refugee counsellor reported that the consul: He turned down the guys case, after saying You cant say exactly who threatened you. There is widespread concern over the degree to which consular officials are aware of the human rights and political situations in each Central American nation. Such knowledge is crucial for a competent handling of refugee cases, yet officials are reported as making statements that reveal serious ignorance: In El Salvador now you only have local feuds. People who feel at risk can always move somewhere else. People in Central America have gotten used to the war. Many Nicaraguans are fleeing their country because of the governments repression of the Church, and this is occurring because the Sandinistas dont believe in God. One refugee counsellor reported of a consular official that: He told me that a young female applicant had been a child when she left El Salvador, and that I know from experience that children know nothing of oppression and persecution, they see it all as an adventure. The problem may reveal a lack of willingness on the part of officials to seek out objective sources of information on the Central American situation. A consular official in the embassy in Guatemala indicated to a visitor that he does not consult independent human rights or political reports. Other officials are more energetic. A refugee counsellor, speaking of a consul in the Southern U.S., noted: When we first did an interview with him he told me he knew next to nothing about Central America. But he has done a lot of reading since then. There may be more serious roots to the lack of objective information concerning the situation in Central America. The evaluation of human rights conditions is obviously not a politically innocent activity. The Reagan Administration in particular has generated a tremendous amount of misinformation concerning the human rights situation in the region. In a 1984 report on the treatment of Miskito Indians in Nicaragua, Americas Watch commented18: We believe that the Reagan Administration uses human rights criticism of Nicaragua as an instrument of warfare, and that it is a degradation of the human rights cause to make human rights criticism an instrument of military policy. While offering constant attacks on Sandinista totalitarianism, the Reagan Administration has covered up human rights abuses in El Salvador and Guatemala. Thus, while the U.S. State Departments 1986 World Refugee Report laments Sandinista repression in Nicaragua, the words repression or oppression do not appear in its analysis of the two worst human rights offenders in the region. Rather, the reader is told that Improvements in the security situation and human rights performance in El Salvador have helped to reduce the number of Salvadorans seeking asylum in neighbouring countries. and The Guatemalan Indians do not perceive the new government in Guatemala as threatening. What does all this have to do with Canadian officials? U.S. misinformation regarding the situation in Central America may affect the Canadian refugee selection process given that Canadian consular officials tend to have extremely close relations with their American counterparts. One consular official in the U.S. has been quite explicit on the link between refugee policy and relations with the U.S. He is reported as having said: Were not in the business of dealing with refugees. We wish to deal on a friendly basis with the United States, so we dont want to deal with people who are critical of the U.S. To the extent that the close relations between Canadian and American consular officials affects Canadian perceptions of the political situation in Central America, the refugee selection process will be distorted. This may be one of the factors explaining the growing acceptance of Nicaraguans into the Canadian refugee program. It has been suggested by critics of Canadian refugee policy that the government is bringing in Nicaraguans who cannot establish a well-founded fear of persecution. The author met with a group of Nicaraguans living in Canada to discuss these issues. The Nicaraguans resented having been labelled economic refugees, and argued that We were all professionals in Nicaragua. We have given that up and are here washing floors and painting walls. We didnt do this for economic reasons. In explaining their reasons for leaving their country, the Nicaraguans focussed on their general political antipathy to the Sandinista regime: The head of the family has to flee for the good of his children. They have a thing called school/work there, which means that children are forced to go to the coffee harvest during the vacation. A lot of things can happen to them there: they might get pregnant. Children are being indoctrinated in the schools. They are made to spy on their families. Young people have to join the Sandinista Youth organization if they wish to get into University. What really made me want to leave was the way they treated the Pope when he visited in 1983. Heres a man whos promoting peace, and they were so disrespectful. Youd feel really threatened. I was driving to the hospital one night and there were roadblocks everywhere. At one of the roadblocks they fired a gun in the air to get me to stop. We leave it to those familiar with the Nicaraguan situation to evaluate the degree of objectivity of these statements. What was clear from our meeting is that the Nicaraguans felt that their world was turned upside down by the revolution. What is not clear is whether these experiences add up to a well-founded fear of persecution that meets the specific and personal test of the Immigration Manual guidelines. One Nicaraguan with whom we met, however, did present a claim that, if true, would seem to us to meet the specific and personal criterion19. As was stated in Chapter 3, we have no doubt that there are Nicaraguan refugees who meet the Convention Refugee criterion in a rigourous fashion. At the same time, our interviews suggest that the level of fear of persecution that the refugee applicant must demonstrate is lower for Nicaraguans than for other Central Americans. A related question is whether Nicaraguan draft dodgers are being treated more leniently by Canadian officials than those from the rest of Central America. The Nicaraguans with whom we spoke complained that having left to avoid the draft was not considered sufficient cause for refugee status, and a refugee counsellor in the U.S. agreed that the consul in his city would not consider this to be sufficient cause. There is some circumstantial evidence to the contrary, however. A woman in Nicaragua told the author that she had shipped out her three children to Canada so they would not die in the war here. Whatever the story they told Canadian officials, it is clear that they left Nicaragua primarily because of the draft and were admitted as refugees to Canada. They are not alone. In 1985 about 18% of Nicaraguans admitted to Canada as landed immigrants were men between the ages of 15 and 24 (the draft in Nicaragua covers 18-24 year-olds). This was the highest ratio of young men to total immigrants in the Western Hemisphere, and the average for immigrants from the entire world was just 11%20. Thus, an unusually high proportion of Nicaraguans entering Canada are draft-age males, which suggests that consular officials somewhere are in fact treating draft dodgers sympathetically. It is clear, however, that many consular officials in the U.S. are regarding Nicaraguan claims with increasing skepticism since the U.S. began to approve nearly all Nicaraguan asylum applications. The Nicaraguans with whom we spoke stated that in one consulate in the U.S. no refugee claim will be processed unless the individual presents a letter from the U.S. Immigration and Naturalization service rejecting the persons asylum request. Refugee counsellors in various cities report that local consulates are indicating that they will consider few claims from Nicaraguans in the future. One national group that seems to have lost out in the overseas selection system is the Hondurans. Amnesty Internationals 1986 Annual Report expresses concern over the use of torture and disappearances in Honduras, yet Canadian officials appear not to have taken the problem of human rights violations in Honduras seriously when selecting refugees. Only 24 Honduran refugees were admitted in 1987, down from 50 in 1985. Refugee counsellors with whom we spoke indicated an apparent boycott of Honduran cases: We get so many good cases, but we havent had any success getting interviews for them. We were simply asked not to submit cases of Hondurans. There is an attitude that Hondurans are not really refugees, and their applications are looked upon as frivolous. They seem a bit more open to Honduran cases now; before they didnt even read the applications. Some refugee counsellors with whom we spoke indicated that consular officials needed guidelines on the human rights situation of a country before accepting refugees from that country, and that no such guidelines had been issued for Honduras. The Immigration Manual does not mention such a policy, stating rather that The officer will have to rely primarily on his own judgement and knowledge of world affairs to determine whether the applicants story is reasonable and credible. But as we have already seen, there seem to be many aspects to the application process that are not covered in the Immigration Manual. Assuming that Honduran applicants are not being rejected because of a lack of guidelines on the situation in Honduras, why then have their applications met with disfavour? One obvious hypothesis is that Honduras is the prime beneficiary of Canadian aid to Central America, and government officials may receive orientations from above to downplay or ignore human rights violations there. This is, as we said, merely a hypothesis, but it might be interesting to examine the relation between aid and refugee policies, given the odd treatment of Honduran refugees, and the fact that more refugees are being admitted from Nicaragua as the aid relationship with that country withers, and less are being admitted from Guatemala at a time when Canada is resuming bilateral aid. 5.6 After the Interview At the end of the interview, the applicant may or may not be given a tentative answer by the consular official. Some appear to have the power to decide on the spot (pending, of course, the medical and security checks), others do not. One official posted in the U.S. refers every case to an embassy in the region for its evaluation. Once again, there does not appear to be a uniform practice for the handling of the post-interview decision. In general between a quarter and a third of those who reach the interview stage drop out there. The percentage is somewhat higher for Central Americans than for refugees from other parts of the world, and is up sharply in 1987-8821. The individual approved at the interview stage is passed on to the medical/security hurdle. While the medical procedure seems relatively straight-forward, the security check is creating serious delays and is one of the principle factors leading people to come to Canada to make refugee claims rather than using the overseas selection process. Our interviewees reported to us that the post-interview delay can run from a few months to over a year. Consular officials in the U.S. are now regularly telling applicants that the post-interview wait will be eight or nine months. We were told of one case of an applicant who waited a year after the interview and then was asked to come in for a security interview. The wait is made more difficult because its cause is not clear to the refugee. Some refugees are told tall tales: They told us that there would be a long delay because they hadnt found a place to put us in Canada yet. While other consular officials explain that a background check will be undertaken, neither the refugee, nor for that matter the Canadian public, know exactly what this background check might entail. As the months roll by, many refugee applicants in the region remain at risk. The Immigration Manual says that the security check can be bypassed in cases of great urgency, and in some cases this is done22. But, as one refugee counsellor commented: Its BS that people in risk will be rushed out of the region. We had a high-risk case, and the official told us that the only way to speed things up was to use political influence in Canada to make a big fuss around the case. This avenue is obviously not open to all. The wife of the man murdered after having been refused an interview (See section 5.3 above) had to wait several months before being allowed to come to Canada, despite being clearly at risk. To the extent that the background check requires collaboration with repressive police forces23, there is legitimate concern that the procedure might increase risk to refugees still in the region. The wait is very difficult for refugees in the U.S. as well. Some of them are detained, and the security check keeps them detained for several additional months. During this time they may be hit with deportation orders which provoke extensive legal wrangling. One refugee was ordered deported from the U.S. to Central America the day after the Canadian consulate told him he could come to Canada, pending the security check24. One refugee counsellor in a Northern U.S. city explains to all who inquire at his office about coming to Canada that the process will take at least a year (most of which is taken up with the security check), and that they should not begin the process if they do not feel they can live securely in the U.S. during that time. Most of them dont bother calling back. Those who are undocumented live in a state of terror here, and cannot see waiting themselves around that long. I assume many of them have gone straight to the border to try their luck there. Is it all worth it? Are the months lost by refugees, months often spent in enforced idleness, dependent on the charity of others, or in jail, or in great danger, an acceptable price for maintaining our national security? Are our security agencies living up to the Governments mandate to protect us from nihilists, existentialists, dialectical materialists and situation ethicists who are deviously seeking to come here as refugees and threaten our security, tolerance and understanding? We know that the occasional Mozambiquan terrorist will slip by, but how many threats to security are nabbed at the final stage of the refugee determination process? Table 5 presents the data for Central America: Table 5 Cases that Failed the Security Stage 198319841985198619871988Costa RicaEl Salvador201010Guatemala100000HondurasNicaragua010000Total333333World1192140133 [Source: Employment and Immigration Canada data.] In five and a half years, six would-be Central American refugees have been turned away on security grounds25. Less than one in a thousand. As the security process is shrouded in secrecy, we of course have no guarantee that the half-dozen turned away actually represented any threat to Canada. For the world as a whole, 97 out of 58,915 cases failed the security stage26. Is it all worth it? A reasonable alternative to the current practice would be to give all those approved up to the security stage the choice of receving Ministers Permits to come to Canada and begin the resettlement process while the security bureaucracy makes its inquiries concerning their political orientation, beliefs and activities. For the 999 cases in a thousand that will be approved at the security stage, such an alternative would reduce the months of uncertainty spent waiting to come to Canada. With respect to those found to pose a genuine security threat, the U.N. Convention does allow for expulsion in such cases27. We believe that such a change in procedure would greatly enhance the humanitarian quality of Canadas refugee program, and would represent a reasonable balance between Canadas security needs and those of the refugees themselves. Chapter 6: Findings and Recommendations 6.1 Findings 1. There are serious inconsistencies at all stages of the overseas refugee selection process as applied to Central Americans. The combined effect of these inconsistencies is to create an unjust and arbitrary selection process. a. There is a global inconsistency: different policies exist for refugees from different parts of the globe (Sect. 2.3). Were Canada to develop a refugee policy that does not discriminate on the basis of country of origin, our response to Central Americans at risk would be much more generous. b. There are inconsistencies in the guidelines for the determination of refugee cases given to consular officials that have led to the rejection of valid refugee cases. (Sect. 4.2). c. The use of quotas for government-sponsored refugees creates serious inconsistencies in the refugee selection process. Central Americans with a very well-founded fear of persecution may be turned away merely because the consular office to which they apply has already exhausted its quota for the year (Sect. 5.1). d. Staffing shortfalls are causing inconsistencies in the selection process. Consular posts have set up a pre-screening procedure not provided for in the Immigration Manual to bring their work-load into line with staffing restrictions. Pre-application forms used at this stage vary significantly from one consular post to the next (Sect. 5.3). At our Embassy in Guatemala 80% of would-be refugees are turned away at this pre-screening phase, and are never even given an official application form. Thus many valid refugee cases are never heard (Sect. 5.3). e. There are grave inconsistencies of access to Canadian consular offices. Many Salvadorans and Guatemalans must run unacceptable risks even before being given a pre-application form, while Nicaraguans enjoy easier access to consular officials in the region (Sect. 5.2). f. There are notable inconsistencies in the handling of interviews by consular officials. While many officials are humane and competent, others display a callous disregard for the suffering of refugees and a contempt for those seeking to come to Canada (Sect. 5.5). g. Consular officials also display widely varying degrees of knowledge of the Central American human rights situation. Some work to keep themselves informed, while others manifest an appalling ignorance of the situation in the region (Sect. 5.5). This ignorance renders them incapable of evaluating refugee claims competently. h. Finally, there is a regional inconsistency: two and a half times as many Nicaraguans as Guatemalans are being admitted as refugees from abroad, though the human rights situation in Guatemala is, according to all independent observers, much more serious than in Nicaragua (Sect. 3.2). 2. There is a systematic confusion between refugee criteria and normal immigration criteria throughout the refugee selection process. As a result, the selection process is distorted and Canada is not choosing those refugees most in need of resettlement. This confusion emerges at all stages of the refugee selection process. The Immigration Manual encourages consular officials to favour would-be refugees on the basis of their potential contribution to the Canadian economy, rather than focussing the selection process on the degree of the persons well-founded fear of persecution (Sect. 4.1). Would-be refugees will often be refused interviews or even immigration application forms because of their educational or occupational background (Sect. 5.3). Ironically, many of those who are chosen as refugees, on the basis of their high education levels and occupational experience, are often incapable of working in their traditional areas of activity (Sect. 5.4). 3. Would-be refugees face long delays in the refugee selection process. This is an important factor leading refugees to avoid the overseas selection process by coming directly to Canada. The security checks appear to be the main cause of these delays. 6.2 Recommendations 1. Canada can and should develop a consistent and just overseas refugee selection process. Measures toward this end should be enacted prior to the implementation of Bill C-55: Canada cannot implement legislation that will put more emphasis on the overseas selection process before it has ensured that that process will operate with integrity and efficiency. a. Policies that discriminate between refugees on the basis of country of origin should be abolished. b. Guidelines for consular officials should be brought into line with the United Nations own interpretation of the Convention on Refugees. c. Quotas for the Central American region should be expanded. There should be, in addition to the quotas allocated to specific consular posts, a significant unallocated quota that will allow consular officials to respond to deserving cases that arise after their consulate quota has been filled. d. Canada should dedicate to its refugee selection process the quantity of staff necessary to make that process humane and efficient. e. Access to consular officials and to the refugee selection process must be improved, particularly in the Central American region itself. A standard form should be prepared on which refugee applicants can explain the reasons for their fear of persecution. These forms should be easily available at various points in each country in the region. Provisions should be established so that applicants can return the forms to secure points with the confidence that they will only be opened by Canadian officials. Consular officials should be prepared to meet with refugee applicants in a safe locale, in those cases where it is dangerous for the applicant to come to the consular office itself. The willingness to leave the consular offices to meet with refugees should be a factor in the selection of immigration officers for the region. f. Consular officials who consistently fail to handle refugee application interviews with compassion and competence should either receive further training or be transferred to other duties. g. Consular officials should receive training on the human rights situation in Central America. One of the duties listed in their job description should be to keep themselves informed on the human rights situation through a regular reading of sources such as Amnesty International and Americas Watch. h. The increasing acceptance of Nicaraguan refugees should be studied in greater detail to determine whether Nicaraguans are receiving a more favourable treatment than that given to other Central Americans. 2. The selection process for refugees must be clearly distinguished from that for normal immigrants. Refugees should be selected according to the degree of their well-founded fear of persecution, and according to the urgency of their need for resettlement. A minimum successful establishment criterion can be applied to those chosen according to refugee criteria. For cases of exceptional risk, even someone who fails to meet this minimum test should be admitted on compassionate grounds. No person should be rejected for failing to meet admissibility criteria at any stage (pre-application or paper screening) prior to a determination regarding the strength of that persons claim to be a refugee. 3. Because less than one in a thousand Central American refugee applicants have been excluded from Canada on security grounds (Sect. 5.6), we recommend that all Central Americans accepted as refugees at the interview stage be given the choice of receiving Ministers Permits allowing them to come to Canada and begin resettlement here while the security check is taking place. This measure would reduce significantly the delays for refugee applicants and would in no way harm Canadas security interests. 1Calculation based on official statistics available at: cic.gc.ca/english/resources/statistics/facts2013/permanent/02.asp 1In general, the bending of Canadian compassion to the dictates of political expediency has been accomplished through a maze of regulations and procedures invisible to the public. See Reg Whitaker, Double Standard: The Secret History of Canadian Immigration [Toronto: Lester & Orpen Dennys, 1987] 2Whitaker, p. 292 3Minutes of Proceedings and Evidence of the Standing Committee on Labour, Employment and Immigration, Issue # 37, March 3, 1987. 4Section 3.06. Manual hereafter cited as IS. 5IS 26. A similar policy is spelled out for Guatemalans. Nicaraguans, on the other hand, need no visa to visit Canada. 6Minutes of Proceedings and Evidence of the Standing Committee on Labour, Employment and Immigration, Issue # 34, May 7, 1987. 1Refugee Perspectives 1987-1988" 2 U.S. Committee for Refugees, World Refugee Survey: 1986 in Review. 3Refugee Perspectives 1987-1988", p. 10. 4Orantes-Hernandez et al vs. Meese. United States District Court, Central District of California. 5Employment and Immigration Canada, Annual Report to Parliament on Immigration Levels: 1982". In late 1982, the Latin American Designated Class to which the quotation refers was modified somewhat. At the same time it was renamed the Political Prisoners and Oppressed Persons Designated Class, to allow the inclusion of Poland in the list of countries covered by the Class. 6Political Prisoners and Oppressed Persons Designated Class Regulations, 4 November 1982. Canada Gazette Part II Vol 116 No. 22. 7The 1982 schedule was made up of Chile, El Salvador, Guatemala, Uruguay and Poland. 8Employment and Immigration Canada, Annual Report 1985-1986". 9Self-Exiled Persons Class Regulations, 7 December 1978. Canada Gazette Part II Vol 112 No. 24. 10The schedule is made up of 8 Eastern European nations. 11Schedule II includes only Yugoslavia. 12Refugee Perspectives 1987-1988", p. 13. 13 Throughout part of the 1980's, a number of Salvadorans and Guatemalans were admitted under relaxed criteria; these special program landings represented in 1986 17% of all Central American refugee admissions. [Refugee Perspectives 1987-1988", p. 42.] 1Employment and Immigration Canada, Annual Report to Parliament on Immigration Levels, 1982". 2This list was developed in the post-war period, and traditionally included only those regimes that identify themselves as Communist. As well, since 1977, a few countries have been placed under temporary non-removal status because of unrest, civil war or social strife. [Minister of Employment and Immigration, Procedures to replace Canadas Blanket Admission/Non-Deportation Policy, February 1987.] The list was traditionally confidential, and was published only in May 1986, when it became known as the B-1 List. 3Employment and Immigration Canada Press Release, December 23, 1985. The legislation promised in December 1985 is Bill C-55, which at the time of writing has just been approved by the House of Commons. 4In a January 28 1987 letter to Alan Nelson, the Commissioner of the U.S. Immigration and Naturalization Service, Joe Bisset, the Executive Director of Immigration and Demographic Policy of Employment and Immigration Canada, stated that the purpose of [the May 1986 measure] was to allow us to divert resources to enforcement cases which would result in actual deportation thus enhancing our enforcement programme. 5Employment and Immigration Canada, Regulatory Impact Analysis Statement, Canada Gazette, Part II, Vol. 121, No.5. 6January 29, 1987 letter of Alan Nelson, the Commissioner of the U.S. Immigration and Naturalization Service, to Joe Bisset, the Executive Director of Immigration and Demographic Policy of Employment and Immigration Canada. 7Commonly referred to as the contras. 8Though, as a report cited below indicates, there have been some arbitrary killings by Government military in remote areas undergoing armed conflict. 9Americas Watch, Human Rights in Guatemala: No Neutrals Allowed [New York: 1982] 10Americas Watch, Guatemala: A Nation of Prisoners [New York: 1984] 11Americas Watch Committee & The American Civil Liberties Union, Third Supplement to the Report on Human Rights in El Salvador [New York, 1983] 12Amnesty International, Nicaragua, the Human Rights Record [London: 1986]. 13Americas Watch, Settling into Routine: Human Rights Abuses in Duartes Second Year [New York: 1986] 14Pensamiento Propio, December 1985. 15Amnesty International, 1987 Report [London: 1987]. 16Inter-Church Committee on Human Rights in Latin America, 1986 Annual Report on the Human Rights Situation in Guatemala [Toronto: January 1987]. 17Inter-Church Committee on Human Rights in Latin America, Newsletter, 1988 Nos. 1 & 2. 18Immigration and Naturalization Service data. 19Source: U.S. Immigration and Naturalization Service. At the time of writing the Moakley-DeConcini Bill has not been passed. 20Nor is it correct to believe that this weariness with the economic situation reflected merely the loss of luxury products. Such a view underestimates the depth of the economic crisis provoked by the U.S. war against Nicaragua. 1IS 3.05 2It is interesting that in public Government pamphlets in the refugee application process, there is no mention at all of the successful establishment criterion, and it appears that a well-founded fear of persecution is sufficient cause to be granted refugee status. See for example Employment and Immigration Canada, Claiming Refugee Status in Canada: Information for Claimants [Ottawa: 1982]. 3There are somewhat different flow charts for different types of sponsorship cases. 4As opposed to a form designed specifically for refugee applications. The question of forms will be examined again in Chapter 5. 5IS 3.20 6In Refugee Claims Backlog Regulations, Appendix A-2. 7See the passage cited on Page 10. 8That is, whether they meet the definition of Convention Refugee or fit within a Designated Class. 9We shall see in Chapter 5 that the interviewer often devotes more attention to the successful establishment aspect of the decision than to the refugee claim aspect. 10IS 3.24 11IE 8.07 12Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status [Geneva: 1979], p. 17. 13Article 1.f [Emphasis Added]. 14IS 3.24 15IS 3.24 16IS 8, Appendix A 17IS 1.14. 18Ibid. 1Though these are commonly referred to in official documents as allocations, the majority of our interviewees noted that consular officials regularly speak of quotas. 2Employment and Immigration Canada, Immigration Levels 1988-90: Consultation Issues, p. 8. 3See Refugee Perspectives 1987-1988, p. 40, for a definition of the various categories. 4Central American Refugee Center, Salvadoran Refugees Return Home [Washington: 1988]. 5According to the U.S. Committee on Refugees [op. cit.], there are 45,000 Salvadoran refugees requiring protection and/or assistance in Honduras and Guatemala, the countries covered by the Embassy in Guatemala, and 28,500 Nicaraguans. 6The handling of blank application forms varies widely between consulates in the U.S. In some cases it is difficult for would-be refugees to get their hands on the forms. In other cases, however, the consulate has given local refugee counsellors piles of application forms. 7There is authorization for the use of such a questionnaire for independent immigrants, however. See IS 4.26. 8Data supplied by the Department of External Affairs. The figure includes both personnel recruited in Canada and locally-recruited personnel, but does not include support staff. 9Hong Kong, London and New Delhi. 10They are the posts listed in Table 1, above, with the exception of Santiago, Chile. 11The letter was provided to us by one of our interviewees. It seems to be an amalgam of suggested form letters found in the chapter of the Immigration Manual dealing with independent immigrants. See IS 4, Appendix A. 12See Chapter 4.1, above. 13Though in some other consulates, illiterate persons are accepted. 14From 1979 to 1986, Nicaragua lost through emigration 1,237 doctors, 1,141 other health workers, and 1,633 engineers. [Source: Nicaraguan Secretaria de Planificacion y Presupuesto]. 15The data is for all immigrants, not just refugees. Nevertheless, the data can be taken as indicative of the skills level of refugees, since in each case refugees represent a significant share of total immigrants [86.5% for El Salvador, 51.4% for Guatemala, 96.4% for Nicaragua] 16The U.N. guidelines for the interpretation of the Convention on refugees state that the word fear refers not only to persons who have actually been persecuted, but also to those who wish to avoid a situation entailing the risk of persecution. [Office of the United Nations High Commissioner for Refugees, op. cit.] 17Bruce McLeod, How can we dare ignore refugees?, Toronto Star, March 1, 1988. 18Americas Watch, The Miskitos in Nicaragua: 1981-1984" [New York: 1984], p. 57. 19Because of the conditions governing our meeting, the details of this claim cannot be presented here. 20Of seventy-eight countries in the world which sent at least 100 immigrants to Canada, the Nicaragua young man/total immigrant ratio is in seventh highest. Of the six countries with higher ratios, four are also leftist regimes. These figures are based on an analysis of the data in Employment and Immigration Canada, Immigration Statistics: 1985". 21In 1985 and 1986, the failure rates for this stage of the determination process were 26.4% and 28.4%, respectively. The failure rate jumped to 37.8% in 1987, and is at 32.5% for the first trimester of 1988. [Data supplied by Employment and Immigration Canada] 22Between 1983 and early 1988, of 8,408 cases reaching the medical/security stage, 226 were issued Ministers Permits for early admission, about 2.7% of the cases. [Data provided by Employment and Immigration Canada.] 23See Page 45. 24No-one with whom we spoke could recall a case of a person actually deported while going through the Canadian selection process. 25All but one of these cases had been processed through the Embassy in Mexico City. 26It is not surprising that there are so few security problems among refugee applicants. As M.P. Sergio Marchi has commented: if an individual wishes to be a threat, whether it is terrorist or any other way, my personal humble views would be that a professional individual would not subject himself or herself to the rigours of the refugee determination system that takes months to finalize, intense scrutiny of the individual and so on, and that this person may enter this country as a tourist, on a visitors visa, or as an entrepreneur after paying $200,000 or $250,000 into the country. 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