Avtar Sandhu watched the shapes of strangers slip onto the deck of a cargo ship, a far smaller one than he had expected. It was a warm June evening in 1987 in The Hague and the dock was growing dark. Like a curtain, the twilight kept the ship overfilling with Indian travelers obscured, out of clear view of the Dutch authorities.
If Avtar stepped onboard, there would be 174 passengers. Many of them, like him, were Sikh men who had fled the Punjab region of India. Avtar didn’t know the other passengers, only the agent who would cross the Atlantic too. He covered his spot with a loan from a friend in New York at a cost of $3,000 US. His passage paid and his few belongings in hand, all Avtar had left to do was board the Amelie.
Would Avtar Sandhu get in to Canada today?
Claim analysis by Barbara Jackman
An initial assumption must be that the conditions in India today are what they were in mid to late 1980’s.
There are several particular issues which could result in different treatment, and a different result, in the current refugee determination process.
Designated Foreign National: Avtar arrived in Canada by boat with others seeking Canada’s protection. His claim would be considered under the new refugee determination process. While the right to seek asylum is recognized internationally, current legislation in Canada now penalizes claimants like Avtar who arrive in groups without proper visas. If he and the others with him are designated as irregular arrivals, they are labelled ‘designated foreign nationals’ and are treated much differently than most other claimants. Avtar would be detained, and while he would have an initial review of the need to continue his detention only after two weeks, if he was not released at that time, he would have to wait six months for another review. Others normally have regular monthly reviews.
Detention and Time Limits: Avtar would be severely disadvantaged in trying to prepare his refugee claim, if his detention was continued. He would have to file his claim form within 15 days of indicating that he wanted to seek protection and his hearing would be held within the following 60 days. Studies in the United States showed that detained applicants were much more likely to not have legal representation and were more likely to have their claims refused than others. Avtar would be limited in who he could be communicating with in the outside world unless he had friends or relatives in Canada willing to help him get evidence for his claim. Visits from his counsel to prepare would be limited by distance and visitation hours, and if an interpreter was needed this would pose another logistical limitation.
Refugee Interpretation Issues: Avtar might have more difficulty in establishing his claim on the merits given the current climate at the Refugee Division. While the definition of a Convention refugee has not changed, and a further definition of a person in need of protection has been added since Avtar came in 1987, applying the definitions has become more painstaking with “assumptions” that have crept into the analysis. For example, Avtar was not involved in dissident activities. He was targeted because he was a young Sikh and the authorities assumed he supported the Sikh separatist movement. The Federal Court of Appeal clarified in 1990 that it was not necessary to show that one was specifically targeted; it was enough if one could show that he or she came within a class or group being targeted. However, although this jurisprudence is clear it continues to be used as a ground for refusal – that the claimant has not established that the authorities are targeting him or her specifically.
Another issue for Avtar, which is very likely to come up, is his long sojourn in Europe. He was there from 1985 to 1987, before coming to Canada. It is not clear what efforts he made to seek asylum in Europe but if he did not, or did file an asylum claim but did not wait for an answer, then his credibility will be at issue. A failure to seek protection in another country that the person passes through, or to wait for an answer on a claim made, has become a significant reason for rejecting claims. Avtar could expect to be examined closely on this, and while Federal Court judges have indicated that a failure to claim elsewhere, in itself, does not prove that the person has no subjective fear of persecution, it is an increasingly common reason given for refusing refugee claims.
Post-Claim Remedies: If Avtar is not recognized as a refugee or person in need of protection, he would have no appeal from this decision to the Refugee Appeal Division. He would be able to seek leave to review the decision in the Federal Court, but would need to get an order from the Court staying his removal while he argued his case before the Court. Both leave and stays are sparingly granted by the Court. And, even if he was able to obtain new and stronger evidence to establish his risk in return to India, he would not be eligible to apply for another risk assessment for three years, if not removed before then.
Delays in Settlement: If Avtar was recognized as a refugee or person in need of protection, he would not be allowed to apply for landing, nor could he make an application for his family to join him, for five years. This would mean that he would have to continue to work with a social insurance number that identifies him as a “foreigner”. He would face other frustrations; such as renewing his work permit, needing a student authorization to study, renewing his health care coverage. He would not be eligible to apply for a travel document, so could not even travel to visit his family in a safe country while waiting for landing. And throughout that time it would be open to the CBSA to bring an application to take away his refugee protection on the basis that the human rights situation in India has improved. On top of the five year wait, he would likely face further delays because of backlogs in processing. This is common, such that often people wait several years for the processing to be completed on their own applications as well as that of their spouses and children.
It would not be farfetched to estimate that Avtar would have to wait seven to ten years before his family would be permitted to join him. For a country that purports to value families, causing family separation for such an extended period of time seems to be counter-productive and inhumane. When Avtar’s son and daughter arrive they could well be teenagers who do not know their father. Coping with a change of culture, language, climate and country is difficult enough, without having to come to know one’s parent.
Avtar may be accepted as a refugee, but would face many more hurdles in processing his claim. He would not have secure status for a minimum of five years, and more likely several years longer. He would not be able to bring his family to live with him until he was himself landed as a permanent resident.
Mampre Shirinian, told by George Shirinian