Tarun was born in 1983, the year civil war began in Sri Lanka. Across the northern part of the island country once known as Ceylon, the Liberation Tigers of Tamil Eelam (Tamil Tigers) were in a brutal fight to establish a free state. Tamils, a Sri Lankan Hindu minority, opposed the (Buddhist) Sinhalese-dominated Sri Lankan government, and thousands would die in coming years. The conflict was built on decades of grievances, and each death pushed the groups farther apart.
Name changed to protect identity.
Would Tarun get in to Canada today?
Claim analysis by Andrew Brouwer
We begin with the assumption that country conditions in Sri Lanka today are what they were in 2004.
Would Tarun be granted refugee protection under the current Canadian refugee determination system? Before answering that question, we must consider whether he would even make it into Canada in the first place.
Tarun was not travelling on his own passport; he used a fake passport provided to him by an agent. He is not alone in this – since Canada, like other western countries, doesn’t give visas to people who are seeking asylum, many refugees have no choice but to avail themselves of the services of “agents” who will, for a price, provide fake documents and facilitate travel to countries that receive refugees.
Knowing this, Canada, the EU, the USA and several other countries have invested heavily in efforts to detect and intercept people with “improper” documents prior to arrival in their territories. Over the past 20 years, Canadian officials alone have prevented thousands of “improperly documented” travelers from boarding flights to Canada. It can safely be assumed that many of these “improperly documented” individuals were refugees; all were turned back, usually to the very countries they were trying to flee.
Tarun had to pass through two different transit points en route to the USA and Canada. Would his fake passport have escaped detection? Or would he have been refused boarding and forced to return to Colombo? Sri Lankan authorities view young Tamil men from the North with deep suspicion. Add to this the facts that Tarun left Sri Lanka illegally on a fake passport and has been questioned in the past about links to the Liberation Tigers of Tamil Eelam (LTTE), and there is good reason to think that on return he would have been arrested and subjected to further brutal interrogation.
Safe Third Country Agreement
Even if Tarun made it to the USA on his fake passport, however, he would have faced another barrier when seeking to cross into Canada at the border in Fort Erie: the Canada-US Safe Third Country Agreement (STCA). The STCA, which came into force just four months after Tarun arrived, applies at land borders between Canada and the USA and bars most refugees from entering Canada to make a refugee claim here. There is an exception for those with certain categories of family member in Canada, provided the family member has a recognized legal status here.
Tarun had an uncle in Canada. In many parts of the world, including Sri Lanka, the term “uncle” is used as a term of respect for an elder who has close connections to one’s family, but may in fact be a second or third cousin, or even have no shared bloodline. To be permitted to enter Canada to make his refugee claim, however, Tarun would have to show proof that his Canadian relative was in fact his uncle as that term is understood in Canada. Having entered the USA without any documents of his own, that will be tough to do. He will need to stay at Vive la Casa long enough to obtain identity documents for himself as well as corroborating evidence of his relationship to his uncle. The uncle would also need to have had proper legal status in Canada. If Tarun tries to enter Canada without this evidence, he will likely be refused entry and handed over to US authorities (who will detain him).
Tarun’s claim, if he gets the chance to make it, is a good one. However, he will have very little time to prepare it. Because he entered Canada through the US, under the current system in Canada he will have to submit his Basis of Claim form within 15 days of entry, and his hearing will take place 30 days after that. He likely won’t be able to get any corroborating evidence about his torture in this time; he may also not be able to get a medical report on his torture injuries in time.
At the hearing, the lack of corroborating evidence will be a strike against him. The Board member will also want to know why he waited for identity documents in the US rather than simply entering Canada immediately. If the Board member is not satisfied by Tarun’s explanation that he needed his identity papers before approaching the border, this, combined with the lack of proof of his previous torture, may lead to refusal of the claim.
Under Canada’s current system, Tarun will face immediate deportation to Sri Lanka with no appeal of the decision. Because he entered Canada under the STCA, Tarun is barred from filing an appeal at the Refugee Appeal Division, and while he can file an application for leave for judicial review in the Federal Court, he can be deported before the Court even considers the case. He will also be denied access to a Pre Removal Risk Assessment. If he is lucky, he might be able to find a lawyer to seek a stay of removal in the Federal Court, but the odds of success are not in his favour.
Even if Tarun is successful at the Board, he will face questions about his relationship to the LTTE, and why the Sri Lankan authorities had accused him of involvement.
Allegations of involvement with a terrorist group can make a person inadmissible to Canada for “membership in a terrorist group.” The assessment of inadmissibility on this ground includes considering whether there are reasonable grounds to believe a person is, was or may be in the future a member of the group, and membership itself is undefined. Even someone who hands out leaflets for a group, or provides food to rebels at gunpoint, might be found to be inadmissible as a person who supported a terrorist group.
While there is no reason to think Tarun actually supported the LTTE – quite the opposite, in fact – his profile as a young Tamil male from the north of Sri Lanka who has been alleged by the Sri Lankan government to be a terrorist is enough to trigger an investigation by CBSA and CSIS. This will almost certainly delay the processing of his application for permanent residence by many months, or even years, which will, in turn, delay his sponsorship of his parents and sister if he is ultimately accepted as a refugee, as well as his own Canadian citizenship. Returning to Sri Lanka for a wedding before obtaining Canadian citizenship could, under the current Canadian system, result in his losing his status entirely and being deported to Sri Lanka after all.
If Tarun is able to make it to the USA without being intercepted, and then is able get evidence to prove his identity and relationship to his uncle, he will be allowed to make a refugee claim in Canada. However, he will have very little time to gather the evidence needed to win his claim, and if he loses he will likely be deported without an appeal. Odds are therefore that he will not succeed.
Mie Tha Lah