Torture costs: How Canada can deport you to torture and make you pay the bill

Sometime I am very proud of being Canadian, especially when we claim the moral high ground while blatantly disregarding basic international law norms. Do as I say, not as I do. For those who didn’t catch the sarcasm, this post does not talk about nationalistic pride. Instead it will explore briefly a major failure of our refugee and immigration system. This failure, I fear, is far from being the only one; it just so happens that we were made aware of it unlike most removed refugee claimants’ cases. The case I am referring to is the one of Adel Benhmuda and his family. Originally from Libya, he claimed refugee status in Canada in 2000, an application that was rejected by the Immigration and Refugee Board (IRB) in 2003. The government began removal procedure in 2008. Adel applied for a Pre-removal risk assessment, a procedure supposed to ensure that the removee will not be at risk of torture, cruel or unusual treatment, or death.[1] The application was dismissed by an immigration officer and he was removed to Libya where he was detained upon arrival. He was subsequently tortured. He managed to smuggle his family out and claimed refugee status in Malta.[2] Status was granted and Adel is now trying to come back to Canada.

One might think that Adel’s ordeal was finally over, but it was not. He applied to be resettled to Canada under the convention refugee abroad category with the support of the United Nations Commissioner for Refugees (UNHCR).[3] Against all odds, the visa officer in the Canadian Embassy in Rome in charge of the file rejected Adel’s application in a decision filled with factual inaccuracies. In fact, the decision was set aside on judicial review on the ground of reasonable apprehension of bias.[4] Justice Gleason even ordered, as it is rarely done in immigration and refugee matters, that the visa officer’s notes be expunged from Adel’s file, that the redetermination of his application be done within 90 days, and costs of $5000 (costs are usually not awarded in immigration and refugee matters). Bias was so obvious that, in Gleason J.’s view, “the respondent [Citizenship and Immigration Canada] would have been well-advised to adopt a similar approach in this case [consent to redetermination], as, in my view, the case’s outcome was a foregone conclusion”.[5] The redetermination resulted in finally allowing Adel and his family (two of his sons were born in Canada) to return to Canada.[6] However, to add insult to injury, the Citizenship and Immigration Canada is now asking him to pay for his removal fee ($6000) in addition to $800 for his authorization to return to Canada.[7]

These fees are usual when someone who is removed wants to come back to Canada. However they can be waived by the Minister (currently Chris Alexander), which one think should be automatic when the person seeking to return to Canada should have not been removed in the first place. Minister Alexander expressed some embarrassment at the situation. Embarrassment is an understatement; he should feel shame. Obviously Adel should not have to pay the fee and an official apology should be issued, but I believe some form of compensation is also in order for the torture he suffered after his removal (considering that litigation for breach of the Charter is a possibility[8]). That would be the least. But for now, besides being “embarrassed”, the government has done nothing to rectify the situation.

What this case highlights in my opinion is how dysfunctional the Canadian immigration and refugee system is. As a country that signed and ratified both the Refugee and Torture Conventions, and by presumably being populated by decent human beings, it is our obligation to protect asylum seekers. To that effect, we created an adjudicative system to determine who is and who is not a refugee. The IRB is at the center of this system. The system is supposed to be impartial and, one would think considering its important mission, effective. The question that begs to be asked is how can we have faith in this system when Adel’s applications for refugee status and subsequently for pre-removal risk assessment were denied, when they were clearly founded as the following events indicate, and when he was being treated in such a despicable way while trying to come back, including blatant bias by a decision maker? This would be less troubling if this was an isolate case, but, in my experience, it is not.[9]

This tells me that considering the currents government immigration and refugee policy and the “quality” of the IRB decision, the system lacks rigour and independence. The IRB members and immigration officers do not have tenure security like judges (immigration officers and Refugee Protection Division members are public servant and the Refugee Appeal Division members are appointed for a limited term by the government) and often seem to search for ways to dismiss applications, especially when they come from certain countries (like Mexico). Decisions can often be poorly argued and justified but difficult to review considering the deferential “reasonableness” standard of review. Many refugee lawyers and claimants have commented on how hostile the IRB environment can be and how certain members are known for their biases (although they usually are not visible enough to warrant review).[10] The situation is worse inside Immigration and Citizenship Canada which lacks even the pretence of independence (the visa officer’s emails are not uncommon although the language is usually more cautious to avoid review). Teaching members and officers how to avoid review (you can tell often that decisions are specifically written to achieve this) is obviously not the solution. Since the problem, in my view, seems to be inherent to the system (problems existed before the election of the conservative government), I am doubtful that reform would be sufficient. It seems to me that the only way to avoid such a failure of our international and humanitarian obligations would be to do a complete overhaul of the system, including better safeguards (pre-removal risk-assessments are clearly inadequate). I doubt this will happen anytime soon. In the meantime the attitude of the government can be summarised by the words of its visa officer: “I do not see what is Canada’s obligation in this case”. We respect the procedure (although obviously not the spirit of the Conventions) so what can we do more? I mean, removing people so they can risk torture is a costly business and someone has to pay. We found he was not a refugee, so what happens after is clearly not our fault. Right? …



[1] S 115 of the Immigration and Refugee Protection Act, SC 2001, c 27; Article 33 of the Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137; and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85.

[2] Josh D. Scheinert, When Sorry Seems To Be The Hardest Word, Huffington Post Canada, 26 October 2013, online at www.hufftingtonpost.ca < http://www.huffingtonpost.ca/josh-d-scheinert/immigration-canada_b_4165963.html >.

[3] S 139 of the Immigration and Refugee Protection Regulations, SOR/2002-227.

[4] Benhmuda v Canada (Citizenship and Immigration), 2012 FC 1222.

[5] Ibid, at para 41.

[6] CBC News, Deported Libyan family allowed to return to Canada, 18 January 2013, online at www.cbc.ca < http://www.cbc.ca/news/canada/deported-libyan-family-allowed-to-return-to-canada-1.1311626 >.

[7] Editorial, Ottawa should waive fee for Libyan deported to torture, Toronto Star, 28 October 2013, online at www.thestar.com < http://www.thestar.com/opinion/editorials/2013/10/28/ottawa_should_waive_fee_for_libyan_deported_to_torture_editorial.html >.

[8] See Canada (Prime Minister) v Khadr, 2010 SCC 3; and Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1. See also the judgment of the European Court of Human Rights El-Masri v the former Yugoslav Republic of Macedonia, No 39630/09, [2012] ECHR 2067.

[9] See for example Mary Sheppard, Deported Mexican refugee claimant dies after beating, CBC News, 24 April 2012, online at www.cbc.ca < http://www.cbc.ca/news/canada/deported-mexican-refugee-claimant-dies-after-beating-1.1166530 >.

[10] For a quantitative analyses of the IRB refugee determination patterns see Sean Rehaag, “Troubling Patterns in Canadian Refugee Adjudication” (2008) 39 Ott L Rev 335 (available on SSRN).

7 thoughts on “Torture costs: How Canada can deport you to torture and make you pay the bill

  1. Pingback: Torture costs: How Canada can deport you to torture and make you pay the bill | jurisblogger

  2. Jeff Nguyen

    It’s good to know that the U.S. isn’t the only country that talks out of both sides of it’s mouth. Correct me if I’m wrong but wasn’t Canada once a safe harbor for many refugees and asylum seekers? I remember reading years ago about the influx of Cambodians following the Khmer Rouge. The times they are a changing, it seems. Take care out there.

    Reply
    1. jurisblogger Post author

      Yes once upon a time we had what was qualified by the UNHCR as a model refugee determination system, and had political actors who promoted humanitarian goals. I remember when I was little my family welcomed a Vietnamese refugee for a year to help settlement when Canada welcomed boat people for Vietnam. It’s in stark contrast from how we welcomed the Tamil boat people in 2010 (we basically treated them as either potential terrorists or fake refugee claimants). Two things basically happened: (1) the 9/11 paranoia about terrorist (the act was completely reformed in 2001); and the election of the conservative government in 2006 (things got worse since 2011 when they won a majority in the House of Commons and were able to appoint a majority of senators). Both the law and the political discourses towards refugees, and immigrants more generally, have change considerably in the past 15 years.

      Reply
      1. Jeff Nguyen

        It seems like the specter of 9/11 hangs over both of our countries but even more so over the predominantly Muslim countries that were targeted by our governments.

        It is heartening to hear of the indigenous movements that are rising up in your country. Building alliances and grassroots coalitions may be an important step in facing the problems in our respective countries. The student protests in Quebec also have no precedent in the U.S. where the progressives at the universities were neutralized by the second coming of Obama.

        Reply
        1. jurisblogger Post author

          My take on it is that the current consumer driven capitalist system we have is still benefiting or at least appears to benefit most middle and upper class people who therefore care little about things unless it directly impact their wallet in an obvious way. But for marginalized people for whome the system is not working (students) or actually actively and quite blatantly oppressing them (Aboriginal people) and who have nothing to lose, there is no other choice than to go out and shout and cause disruption to get some tiny amount of change. Both group also have a basic organisation already in place which facilitate mobilization (the student strikes became more of a general protest movement after a while, and Aboriginal groups are finding support from outside their community). I could also add that there is a “tradition” of protest for both groups (since the 70s, Aboriginal people had little choice but to protest to get some attention from the colonial government; and since the 60s there is a student strike nearly every 5 years (my brother participated in this one, while I did the one before! and both my parents also participated in some in their youth). Sadly, the majority of the population is either indoctrinated to think everything is fine or are afraid that change would mean losing something (especially money) or is actively benefiting from oppression. I fear that most of our co-citizens would only rise up when danger is at their doorstep (which might be too late). Hopefully I’m too pesimistic and therefore am wrong. Anyway, end of today’s verbal deluge! 😛

          Reply
          1. Jeff Nguyen

            That’s really great to hear that your family members were active in the student strikes. I grew up in a conservative, Republican worshipping family. I’m hoping to break that cycle with my own family. Good talking to you.

          2. jurisblogger Post author

            Likewise. I must say I am pretty lucky to have such a fantastic family. Take care!

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