Law Times

Law Times • march 7, 2011 FOCUS Feds tackle human smuggling Bill would bar claimants from permanent residency for 5 years BY DARYL-LYNN CARLSON For Law Times down on human smuggling in an eff ort to prevent potential bar- rages of refugee claims. Parliament is considering bill P C-49, the preventing human smugglers from abusing Canada's immigration system act, that if passed will enable the govern- ment to declare a ship or a plane as a mass arrival of prospective refugee claimants and detain the passengers for up to one year. Claimants would also be un- able to become permanent resi- dents for fi ve years even if the government processes and accepts their refugee applications. But both opposition parties plan to vote against the bill, and the Canadian Bar Association's national citizenship and immi- gration law section issued a state- ment arguing it wrongly targets ublic Safety Minister Vic Toews has announced the government will crack and penalizes refugee claimants rather than the human smugglers who facilitate their arrival. Matthew Jeff ery, an immigra- tion lawyer in Toronto, says the bill won't stop the smugglers. "Th is will not solve the underly- ing problem because the smug- glers aren't on the boat. Th ey take the money and send the people on their own. So this will just vic- timize the people who have paid the smugglers to get here." In Jeff ery's view, a lawyer who represents a refugee claimant de- tained as a result of the bill could argue the law violates the Charter of Rights and Freedoms. As well, he argues the cost of detaining 500 people who arrive on a boat would be exorbitant. At the same time, he says many clients who come to him to make a refugee claim don't have legitimate identifi - cation or documentation that verifi es their country of origin and suggests the government is overreacting following media publicity of two boatloads of claimants from Sri Lanka that arrived in Vancouver. "Both of these incidents attracted a lot of attention, and I think the government is just trying to show that it's doing something. But this is a very unfair and ar- bitrary way to deal with it." Ottawa immigration lawyer Karima Karmali agrees that bill C-49 could prove to be uncon- stitutional by penalizing refugees who have come to Canada seek- ing a better life. "Th e bill is unfair because the government is trying to punish genuine refugees who have paid for their passage to fi nd a better life." Karmali notes the average time the government takes to process a refugee claim is be- tween nine and 36 months de- spite the fact that many refugee claimants hail from countries where their lives are at risk. As well, the vast majority of refugee applications from those who came from Sri Lanka were temporary resident visas to in- dividuals who are upfront about interest in applying for refugee protection within Canada once they are here as visitors," says Karmali. As a result, it would be constructive if Canada in- troduced a more expeditious means for applicants to make a refugee claim from another country to reduce the number of people who will pay a smug- gler to get here, she argues. She says that while one of The government should do more to further human rights in other countries to reduce refugee claims, says Karima Karmali. successful, which means the claimants were able to dem- onstrate there was a risk if the government was to deport them back to their homeland. "It is also not surprising that people who are desperate for their life will pay a smuggler, particular- ly since Canada will not grant the federal government's objec- tives is likely to prevent refu- gee claimants from usurping Canada's process by jumping the queue and paying smug- glers, she doubts the new bill will pass given that both op- position parties are vowing to vote against it. "If the government wants to reduce the number of people claiming refugee protection in Canada, they should do more to support human rights in other countries," Karmali says. Private member's bill would expand visa appeals BY DARYL-LYNN CARLSON For Law Times allow foreigners refused a visitor's visa to have their cases reviewed and appealed before the Immi- gration and Refugee Board. NDP MP Olivia Chow in- T troduced the bill in December. Lawyers say the legislation is im- portant because out of more than one million visitor's visa applica- tions received by Canadian im- migration authorities each year, the government refuses 20 per cent of them over concerns about misrepresentation and that the applicant may try to stay in the country illegally. According to Mario Bellissimo of Bellissimo Law Group in To- ronto, many visa applicants from countries that have problems face rejection. "Th ere are many that are rejected who come from countries where there is a percep- tion that the applicants would come here and claim refugee sta- tus," he says. In his view, expanding the appeal process could encourage acceptance of more applications if the immigration offi cers re- viewing them know that there's recourse for rejected applicants. "I would say they reject too many applications arbitrarily," he says. "Th at can be very challenging for clients because they have to go through two stages, so the costs are higher for them." As well, Bellissimo notes there are applicants making all types of applications who would benefi t from an expanded appeal process due to language barriers. "Sometimes there are applicants who have a limited understand- ing of the procedure, and when they get rejected, many appli- cants just accept the decision," he federal government is considering a private member's bill that would he says, referring to those who don't have a lawyer. According to Bellissimo, the appeal system must be fair to en- sure bona fi de applicants succeed. "I would be completely in favour of the immigration appeal divi- sion having expansive powers in that respect," he says. As for the private member's bill, Bellissimo expects it won't be successful because the federal Conservatives likely won't be in favour of it. He's particularly concerned given that the federal government has appointed many judges be- lieved to have conservative lean- ings to the Federal Court who in turn have been rejecting visa ap- plicants. As a result, he feels the ideal means to appeal a decision would be to attend in person. "Any time you can get a client live and in real time before the immi- gration decision-maker, it leads to much better decisions and much more success," he says. Fhara Pottinger, who has some immigration clients at Weiler Maloney Nelson in Th under Bay, Ont., says the expansion of the appeal process will benefi t many prospective visitors. "People who have diffi culty with the language or don't understand the system are at a big disadvantage," she says. "So this will give them an opportunity to be heard because it's important to have a system that recognizes that people have the opportunity to respond to their application that wasn't ap- proved." Pottinger notes that in Th un- der Bay, there are many types of applicants who seek to make a claim once they arrive. She feels it's critical to have an expansive appeal system for people who come from countries that they can't return to due to fears of persecution. "Often in this type of scenario, you're dealing with people's lives and you just can't send them back," she says. PAGE 13 NORTH AMERICAN RELOCATION LAW Benjamin A. Kranc Certified by the Law Society of Upper Canada as a Specialist in Immigration Law WITH CONTRIBUTIONS BY A TEAM OF PRACTITIONERS HIGHLY-EXPERIENCED IN ALL ASPECTS OF THE RELOCATION PROCESS North American Relocation Law is a practical how-to manual for bringing the right personnel to North America. It efficiently guides you through the relocation process from beginning to end. 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• Crown Uproar
• Dollars and Cents
• Focus On Immigration Law