Canadian Immigration Information Centre

Amnesty International asks Canada to protect privacy of fugitives on War Crimes Wanted List

Amnesty International has sent an open letter to the government of Canada in which it is asking the government to ensure that safeguards are in place to protect the privacy of foreign nationals who are the subject of a Canada-wide arrest warrants for violations under international law or the Crimes Against Humanity and War Crimes Act. The Canada Border Services Agency created a War Crimes Wanted List on its website with the list of 30 foreign nationals in Canada who are wanted for removal. Amnesty International expressed concern that the photos and names of the fugitives were made available on the website because of the potential reputational harm to those persons.  

The War Crimes Wanted List has been successful in locating seven of the fugitives. Two of the fugitives were deported from Canada. One was determined to be the United States. 

Amnesty International suggests that Canada prosecute those on the list rather than returning them to their country of origin. In the open letter, Amnesty International says that under international law, Canada is prohibited from deporting a foreign national if the person faces a serious risk of human rights violations such as torture, execution or enforced disappearance.

That is not the case, however. Under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Canada agreed not to expel a foreign national if there are substantial grounds to believe the foreign national would be subject to torture in the receiving country. This is not absolute and pursuant to the Convention, the prohibition against removal is subject to reasonable limits that can be demonstrably justified under Canadian law.  What this means is that if a foreign national’s presence in Canada would pose a threat to Canada or Canadians, or would otherwise undermine the integrity of the immigration system, the foreign national may be deported regardless of the Convention.  Circumstances where a foreign national’s presence may pose a threat to Canada or Canadians include serious criminality, terrorist threat or other serious security risk (such as war crimes). 

Moreover, under the Convention Relating to the Status of Refugees, foreign nationals who are refugees in Canada should not be expelled to countries where their life or freedom would be threatened because of their race, religion, nationality, political views or membership in a social group. The right against expulsion is also not absolute in Canada. Under this Convention, certain activities or conduct disqualify a person as a Convention refugee, including if the foreign national committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime outside the country of refuge before being admitted as a refugee, or an act against the principles of the United Nations.

Court in Canada rejects payment of health care for illegal immigrant

The Federal Court of Appeal in Canada has refused to consider an appeal from an illegal immigrant seeking to have her health care costs paid by Canada. The immigrant, Neil Toussaint, a foreign national from Grenada residing in Toronto, claimed that the government's refusal to pay her medical costs was unconstitutional because it deprived her of the right to life and security of the person. The Federal Court of Canada held that illegal immigrants are not entitled to federal health coverage when they are not legitimately in the immigration system. The Court also held that paying the health costs of illegal immigrants would undermine the immigration system and would render Canada a safe haven for free medical care for other illegal foreign nationals. See our earlier post here.

MV Sun Sea refugees allude to being trafficked to Canada and owe debts to the traffickers

According to this report in the Globe and Mail, several of the migrants on the MV Sun Sea appear to have admitted that they were trafficked, and not smuggled to Canada and owe debts to the traffickers that they have no intention of repaying. Minister Kenney, the federal immigration minister for Canada, has said that according to evidence he received from the Australian government, Sri Lankan foreign nationals who are trafficked into places like Australia or Canada are "often pressed into criminal service in areas like credit card fraud." Payments to human smugglers or human traffickers are illegal. A person is trafficked, and not smuggled, if they continue to be indebted to the group who smuggled them. Persons who are trafficked are typically coerced, threatened or forced to provide free labour or services or forced to pay substantial sums to the traffickers for long periods of time. If the payments are made to human trafficking operators in Sri Lanka who are members of the LTTE, or in furtherance of the activities of the LTTE, the payments can be considered terrorist activity financing. Terrorist financing activity is prohibited in Canada. 

Report suggests human trafficking in Tamil migration to Canada

According to a report by the Canada Services Border Agency that was posted on the National Post website, the majority of the Tamil migrants who came to Canada aboard the MV Sun Sea in August 2010 may have been part of a human trafficking operation. The report entitled "Preliminary Analysis of MV Sun Sea MIgrants' Interview Notes" states that the majority of the migrants were charged a smuggling fee of $20,000 to $30,000 for their voyage on the MV Sun Sea and paid approximately 25% of that amount as a deposit to agents before departing. The remaining 75% of the fee must be paid to the agents from Canada. 

When migrants, or their families, continue to be financially indebted to a person or a group who facilitated, financed or effected their illegal arrival in a country, that is evidence of human trafficking.

A smuggling operation can become a trafficking operation. Migrants may agree to be smuggled on a migrant ship and once on board, become victims of trafficking. This can happen if the smugglers force migrants to provide services (often sexual), labour, or payments of some kind on the vessel or after arrival in Canada, under circumstances where the migrants fear for their safety or that of someone known to them if they refuse to provide that service, labour or payment. 

People that are smuggled are not deprived of liberty when they arrive at their destination, whereas those who are trafficked are deprived of their liberty in one of several ways - they are typically coerced, threatened or physically abused and are usually forced to provide free labour or services, forced into the sex trade, or forced to pay substantial sums to the traffickers for long periods of time.

Tamil smuggling ship crew alleged to be part of terrorist group

The Toronto Sun is reporting that four crew members of the MV Sun Sea ship that arrived in Canada in August last year are alleged by the federal government of Canada to be members of the Liberation Tigers of Tamil Eelam (LTTE), a designated terrorist organization in several countries including in Canada and the U.S. Members of terrorist organizations are generally inadmissible to visit or reside in Canada because they pose a threat to the security of Canadians and to Canada.

The LTTE was founded in 1976 and uses illegal methods to raise money, acquire weapons and technology, and publicize its cause of establishing an independent Tamil state in northern Sri Lanka. The LTTE began its armed conflict against the Sri Lankan government in 1983, and uses a guerrilla strategy that often includes acts of terrorism. The LTTE has an army of several thousand combatants and until recently, controlled most of the northern and eastern coastal areas of Sri Lanka. Over the past 17 years, the LTTE has conducted approximately 200 suicide bombings, resulting in the deaths of hundreds of people, and carried out numerous political assassinations, including the assasination of two world leaders - the only terrorist organization to do so. 

The MV Sun Sea was used to illegally smuggle 492 Tamil migrants to Canada. It is not known whether the crew will be charged with human smuggling or money laundering in connection with the MV Sun Sea's voyage. The Immigration and Refugee Protection Act makes it an offence to smuggle people into Canada. A person who smuggles ten or more people in Canada is liable to a term of life imprisonment and a fine of $1 million on conviction. Human smuggling is a predicate offence for money laundering under the Criminal Code of Canada. 

Canada introduces laws to deter human smuggling

Canada has introduced tough new legislation to crack down on human smugglers that prey on foreign nationals by illegally bringing them into Canada for large sums of money. The legislation makes it easier to prosecute human smugglers and detain foreign nationals who arrive as part of a smuggling operation without identification. 

The key provisions of the Preventing Human Smugglers from Abusing Canada's Immigration System Act (Bill C-49) are as follows:

• it will give the Minister of Public Safety the competence to designate the arrival of a group of foreign nationals in Canada as an "irregular arrival" if the Minister determines that such a designation is warranted;
• the designation of a group arrival as irregular can be made if the Minister is of the view that establishing the identity of the foreign nationals cannot be done in a timely manner (this can occur, for example, when several foreign nationals have deliberately destroyed their identification or travel documents before entering Canada) or the Minister has reasonable grounds to suspect that there has been, or will be, human smuggling for profit or for or in association with a terrorist group;
• all foreign nationals who arrive as part of an irregular arrival are "designated foreign nationals" unless they can establish otherwise;
• the creation of a designated foreign national creates a separate class of prospective immigrants to Canada - this is likely not discriminatory under the Canadian Charter of Rights and Freedoms because the Charter provides different rights for citizens and non-citizens - only citizens  of Canada have the right to enter, remain in and leave Canada. Non-citizens of Canada are not equal before and under the law of Canada;
• the designation is retroactive to March 31, 2009 and will capture the arrival of Tamil migrants in British Columbia on the Ocean Lady and MV Sun Sea;
• designated foreign nationals may not become permanent residents or sponsor family members to Canada for at least five years if they succeed in establishing refugee protection;
• designated foreign nationals are only lawfully in Canada under the Convention Relating to the Status of Refugees once they have been granted protected status and are permanent residents or temporary residents;
• designated foreign nationals must be detained on entry into Canada or arrested and detained until the earlier of the final determination of their refugee claim or they are ordered released;
• the Minister of Public Safety will prescribe conditions for the release of designated foreign nationals that will apply to all released designated foreign nationals;
• there are mandatory minimum prison sentences for persons convicted of human smuggling;
• vessel owners and operators convicted of smuggling people into Canada face penalties as high as $1 million and prison time; 
• the government will be able to terminate a protected status designation given to a refugee if the protected person acts inconsistently with a refugee claim, such as returning to their country of origin for a vacation after claiming they needed protection from persecution in that country; and
• Canada will increase its undercover operations to detect and deter human smuggling operations targeting Canada.

"The legislation introduced today will send a clear message: Canada opens its doors to those who work hard and play by the rules while cracking down on those who seek to take advantage of our generosity and abuse our fair and welcoming immigration system," the Minister of Public Safety Vic Toews said. Immigration Minister has said that 60% of all refugee claims made in Canada are unfounded.

The new legislation amends the Immigration and Refugee Protection Act, Balanced Refugee Reform Act, and Marine Transportation Security Act.

Government says some Tamil migrants were rejected refugees in UK

Canada's Immigration Minister Jason Kenney announced today that some of the Tamil migrants who arrived on the MV Sun Sea in August of this year had already claimed refugee status in the U.K. and were rejected. "This unlawful behaviour is nothing more than jumping the immigration queue, taking up space and resources in our immigration and refugee system that should be focused on those who are legitimate and lawfully waiting their turn to come to Canada," Kenney said. According to news reports, the information was determined from finger print evidence, not from the Tamil refugee claimants. Approximately 430 of the 500 Tamil migrants are still being detained while Canadian officials attempt to ascertain their identities. 

Federal Court denounces human smuggling of migrants to Canada

The Federal Court of Canada has ruled that a migrant who arrived in Canada with 491 other persons aboard the MV Sun Sea with insufficient and altered identification must continue to be detained until her true identity can be ascertained. In The Minister of Citizenship and Immigration v. XXXX, Justice Lemieux held that irreparable harm in public interest matters is emphasized in immigration cases where identity is an issue and there are serious questions about a foreign national's identity. 

"In my view, the balance of convenience strongly favours the Minister. The respondent is a participant in a massive smuggling effort for which she has paid a considerable amount of money...this form of seeking refugee status has no place in the proper application of humanitarian law."

The respondent arrived in Canada without a passport, claiming to have left it in Thailand. She claimed to have travelled to Thailand from Sri Lanka but there were no records of her entering Thailand by plane. She produced a national identity card that was altered and lied about whether she knew anyone in Canada. The respondent also provided confused responses as to whether she or her family had outstanding debts to the smugglers who brought her illegally into Canada. Evidence of outstanding debts to the smugglers would mean that the respondent was trafficked, and not smuggled into Canada.

Jama deported from Canada to Somalia

The Canada Border Services Agency (CBSA) deported Mohammed Said Jama to Somalia today. Jama has a long history of violence in Canada and was ordered deported in 2007. Based on the seriousness of his criminal history and violent nature, he was subsequently found to be a danger to the public in Canada in 2008. He was admitted to Canada as a Convention refugee in 1991. He has a number of criminal convictions in Canada and the U.S. In 2005, he was involved in a violent home invasion in which he stabbed a home owner in the face. 

Tamil migrants to be detained for months in Canada

The detention of the 492 Tamil migrants who were smuggled aboard the MV Sun Sea to Canada is likely to continue for at least another six months. The Canada Border Services Agency has confirmed that the migrants do not have passports, or other valid identification. Moreover, all of them are denying being members of the crew of the MV Sun Sea and none so far have been able or willing to identify their smugglers.