BROKEN GATES: Canada's welcome mat frayed and unravelling
The Globe and Mail
Harjit Singh -- the man who brought down immigration minister Judy Sgro -- wept at Pearson International Airport the day he was deported to New Delhi.
'I'm scared,' he told reporters. 'I'm afraid to go back. I don't know what will happen to me.'
For 17 years the pizza parlour owner from Brampton, Ont., had pleaded his case to Canadian authorities. He claimed police in India had tortured him for criticizing the government. To send him back could put him in harm's way -- and make Canada complicit in the violation of human rights.
His refugee claim was rejected in 1992, and over the next 13 years, a very different picture of Harjit Singh emerged. He'd been convicted of migrant smuggling back in India; he'd faced charges of people smuggling in Canada that were dropped after he allegedly threatened witnesses; and he'd been found civilly liable in a $1-million credit-card fraud. Still, he managed to evade deportation, filing six bids to stay in Canada on humanitarian grounds and numerous federal court appeals, saying he would be a target of Indian police.
As he boarded the plane on Feb. 2, 2005, his family again portrayed him as the victim of a cruel system. They said he'd been put in solitary confinement at the Toronto West Detention Centre, where the guards denied him a glass of water and instead offered to urinate in a cup for him.
But, contrary to his protestations, Mr. Singh has not been tortured or imprisoned since arriving in India -- save for an overnight stint in immigration holdings at the Delhi airport. Nor has he been forced into hiding.
Instead, the 49-year-old businessman is busy building a gracious two-storey mansion in Jalandhar, a city of two million in the Punjab, 350 kilometres northwest of Delhi. The home, one of two he owns in an upscale area of the city, is palatial by Indian standards, with a black wrought-iron fence, hanging lanterns and a row of neatly planted trees out front. The walls are painted a pale pink, the colour of a sunset, and a red Royal Enfield motorcycle is parked outside.
Clad in black trousers and a white-checkered shirt, with two gold rings on his fingers, Mr. Singh seemed relaxed during a recent visit. 'You are always welcome to come to my house any time,' he told Indian journalist Pradeep Kumar, who spoke to him on behalf of The Globe and Mail. 'But don't talk about my case in Canada. . . . I'll deal with it on my own and I don't want to talk to the press on this issue.'
Mr. Singh seemed to be in good spirits, directing his energy to finishing his new, $300,000 home. But he was not inclined to talk much. His sensational accusations in Canada -- that Ms. Sgro had promised him asylum in return for free pizza and volunteer campaign help -- may have effectively destroyed her career despite her vigorous denials, but he has moved on.
'Whatever happened in Canada, it is with me. It is my life and I don't want to share anything with anybody,' Mr. Singh said.
Harjit Singh's case has come to symbolize all that is wrong with Canada's refugee and immigration systems. An individual whose bid to stay was repeatedly spurned was still able to appeal his way through more than a decade in this country. His accusations of influence peddling showed a system dangerously open to political manipulation.
'We need to learn a lesson from the Harjit Singh case,' said a senior official with Citizenship and Immigration Canada in a recent interview. 'We have to find a way to have a system with more finality, that at some point no has to mean no, there is no question about that.'
While the refugee process has become the flashpoint for the public's frustration, confidence in the overall immigration system has also eroded. Polls show that Canadians still overwhelmingly support immigration but have begun to question Ottawa's ability to manage it.
John Manley, the former deputy prime minister, calls the system 'badly broken.'
'You have a significant amount of pressure on MPs from people in the immigrant community who are frustrated by the system and therefore look for the discretionary exercise [or intervention in their cases],' he said.
Diane Ablonczy, the Conservative immigration critic, says people complain to her about everything from long waits to sponsor parents, to a failure to track the removal of failed refugee claimants. 'They think the system is teetering on the brink of chaos. It is not geared toward ensuring that the rules are respected,' said Ms. Ablonczy, the MP for Calgary-Nose Hill. 'The fear is that the public's attitudes could turn negative toward immigrants, as has happened in Europe.'
The concern, in essence, is that the right people can't get in, and can't get help once they get here, and the wrong people can't be forced out. An Ipsos-Reid poll found in 2004 that 71 per cent of Canadians believe the refugee system 'requires a major rethink' and 80 per cent said Ottawa should look for ways to reduce the cost of running it.
Asylum seekers are entitled to social assistance and legal representation and their appeals take up the time of immigration officers and judges. In the past decade, there has been a 300-per-cent increase in the number of immigration and refugee cases before the Federal Court; they now account for 84 per cent of cases the court hears.
Since there is no merit-based appeal, many use the Immigration Department's humanitarian review as a de facto appeal, arguing they have been in the country so long, it would be a hardship to make them leave.
Twenty years ago this month, a landmark Supreme Court of Canada decision fundamentally altered the way refugee claims are dealt with, triggering a cascade of changes that form today's troubled system.
The ruling, written by Bertha Wilson, an outspoken liberal with an expansive view of the Charter of Rights and Freedoms who has since retired, centred on the appeals of six Indian nationals with the surname Singh, and a woman from Guyana.
The Singhs claimed they would be persecuted in India because of their association with the Akali Dal party in the Punjab, while the Guyanese woman claimed asylum on political and religious grounds. The Refugee Status Advisory Committee and the Immigration Appeal Board, which relied on written transcripts and not oral hearings, rejected their cases.
In her ruling, Judge Wilson found that the refugee system as it existed violated the Charter, which guarantees 'everyone' on Canadian soil, including asylum seekers, the right to fundamental justice.
Two of the sitting justices agreed with her, while three others were silent on a refugee claimant's Charter rights, but ruled that the Immigration Appeal Board, as it was, violated a claimant's right to an oral hearing, as protected by the Bill of Rights.
It took four years for the federal government to respond, with the creation of the Immigration and Refugee Board. By then, a backlog of 115,000 cases had built up, which many believe hobbled the process right from the start.
Moreover, qualified judges and legal experts were not appointed to the IRB. Instead, the $100,000-a-year jobs went to defeated political candidates, party workers and refugee advocates with no legal expertise. While many IRB members became skilled adjudicators, there have been complaints of incompetence and corruption.
The most notorious case involved former board member Yves Bourbonnais. Appointed by then immigration minister Lucienne Robillard in 1996, he is alleged to have taken bribes in exchange for favourable decisions and now faces 97 counts of breach of trust, fraud and obstruction of justice.
Some observers, including politicians, believe the Singh decision was wrong to grant non-Canadians Charter rights, and even suggest that today's Supreme Court might rule differently.
'It is not at all clear to me that the Singh case would be decided quite the same way today if the current Supreme Court had a chance to look at it,' Mr. Manley said. 'I think the government should look very closely at that case and see whether they don't want to re-legislate in the area of access to the Charter protection by people arriving in Canada with no nexus to Canada.'
Legal experts suggest the problem lies less with the ruling, and more with Ottawa's interpretation of it. 'The Singh decision is not about the right of appeal after one has had an opportunity to be heard or the right to remain in Canada while those appeals are entertained,' said David Schneiderman, a University of Toronto constitutional law professor. 'The larger principle the case speaks to, however, is about 'natural' or 'fundamental' justice.'
Natural justice refers to procedural fairness, which could include everything from a full-blown court hearing to having an opportunity to know the case against you and the chance to reply.
Prof. Schneiderman notes that while the current Supreme Court has become more timid on complex social-policy questions, it has also erred on the side of protecting the interests of refugee claimants. In recent rulings, the court has said failed claimants may not be deported to face torture in their homeland, except in exceptional circumstances.
Ottawa has taken steps to improve the IRB, even as it has broadened the definition of refugee to include not just those with a well-founded fear of persecution based on race, religion, nationality, membership in a social group or political opinion, but also those in need of protection because they will be tortured, and those who could be persecuted because they are gay or abused spouses.
The IRB's appointments process has been changed to eliminate patronage. The backlog of cases is down to a more manageable 26,000. The number of claims in 2004 was 25,000, and decisions are issued in less than a year. The acceptance rate has dropped steadily from a high of 84 per cent in 1989, when the board received 12,000 claims, to 40 per cent last year.
But critics say more changes are needed, especially when it comes to the appeals process.
Failed claimants may:
· Seek judicial review in the Federal Court, which only considers mistakes in law (success rate: less than 10 per cent);
· Request a pre-removal risk assessment that examines whether rejected refugees would face torture or danger if deported (success rate: 4 per cent);
· File a humanitarian and compassionate review, arguing they would suffer unusual hardship if removed (success rate: 60 per cent);
· Ask the Federal Court to review negative decisions in the above three appeals.
The cost of all this is considerable, including social assistance for claimants, legal-aid funding and the cost of removals. The IRB's annual budget is about $100-million, while about 12 per cent of Ontario Legal Aid's $157- million budget last year was spent on immigration and refugee cases. In Ontario, 14,000 refugee claimants collected $115-million in social assistance in 2004.
At the same time, refugee source countries have changed significantly. The drop in the acceptance rate in part reflects the fact that more and more economic migrants, who may be unable to qualify under Canada's immigrant point system, are attempting to use the refugee system as a back-door entry.
Among the top 10 source countries last year were democracies such as Mexico, India and Costa Rica. War-torn nations such as Rwanda, Sudan and Afghanistan did not make the list.
'There is no shortage of refugees in the world and we can meet our obligations by bringing people largely from UNHCR camps anywhere in the world,' Mr. Manley said. 'These are genuine people who have fled for fear of losing their lives. . . . People who get to Canada because they've got money and connections, they shouldn't be at the top of our list.'
Harjit Singh is a case in point. He appealed four times to the Federal Court, and filed six humanitarian appeals, all of which were refused, in part because of his criminal conviction in India, which he lied about.
Three weeks after being deported, Mr. Singh sold his $485,000 Brampton home to his daughter and son-in-law. Ms. Sgro, who has launched two $800,000 lawsuits against him for libel and conspiracy, is attempting to undo this property transfer, which she claims was a deliberate attempt to hide his assets.
Mr. Singh isn't the only one who has succeeded in manipulating the system over the years. Convicted Palestinian terrorist Mahmoud Mohammad Issa Mohammad has stalled deportation proceedings for more than 15 years by filing repeated appeals and is now arguing he would not receive adequate medical care if returned to Lebanon.
All of which has swamped the Federal Court, which squeezes tax, patent and aboriginal law, among other obligations, between immigration and refugee cases. The workload is so vast the court has had to appoint 15 new judges in the past decade.
'Neither the government nor the court expected this large increase in immigration and refugee matters. It is not something the court is well placed to deal with in terms of the quantity and proportion of our resources,' Mr. Justice James O'Reilly of the Federal Court said. 'It's a heavy responsibility and a big workload.'
Many MPs from immigrant-heavy ridings in Toronto and Vancouver spend much of their constituency time tracking down family sponsorship files, helping failed claimants make humanitarian reviews and other related work. 'MPs' work in the immigration field has skyrocketed,' said Ms. Ablonczy, who spends 75 per cent of her time on these files.
Mr. Manley, who used to represent the riding of Ottawa South, added: 'In my riding office, 60 to 75 per cent of my cases were immigration cases. It just never stops.'
Catherine Dauvergne, a law professor at the University of British Columbia, says it all comes down to two fundamental weaknesses: failure to enforce removal orders, and misuse of the humanitarian and compassionate review, which now operates as a shadow immigration system.
'What allows people to stay so long in Canada isn't their legal rights conferred by the 1985 Singh decision. It's the fact that we don't make them leave,' said the professor, who holds UBC's research chair in migration law.
Most experts say it's impossible -- and impractical -- for Canada to remove every failed claimant, just as it is impossible to issue tickets to every speeding motorist. The key is to deport all criminals, and remove enough failed claimants to provide a deterrent to other bogus claimants.
Auditor-General Sheila Fraser found two years ago that a 'large gap' of 36,000 existed between the number of removal orders issued and the number of departures confirmed. 'The figure does indicate that the department is falling behind in its enforcement efforts. The growing backlog in removals undermines the system used to admit people to this country,' she said.
According to the Canadian Border Services Agency, the government usually removes about 10,000 people a year. Thousands more are waiting to be removed.
Deportations may be stalled because people disappear and go underground, abscond to the United States, leave voluntarily or because the homelands of failed claimants will not accept them back.
Lorne Waldman, a Toronto immigration lawyer, says Ottawa cut Citizenship and Immigration Canada's budget in the 1990s and has never made funding for removals a priority.
Prof. Dauvergne's other serious concern is that the criteria for humanitarian and compassionate reviews are too 'loose and fluid.' Immigration officers assess these reviews on the basis of an applicant's background, ties to Canada, presence of Canadian-born children and situation in their country of origin.
There are 12,400 of these in the backlog and they take an average of 30 months to process.
As well, the high approval rate -- about 60 per cent -- gives claimants an incentive to prolong their stay here in the hopes they can argue that they have been here so long, it would be a hardship to remove them.
Many failed claimants also have children here, and then use their offspring as part of their humanitarian case, a practise that has become so common that the children have been dubbed 'anchor babies.'
A recent poll by Ipsos-Reid found that 53 per cent of Canadians do not approve of automatic Canadian citizenship for children born on Canadian soil from non-Canadian parents who are visiting the country.
In its defence, Ottawa says it has taken significant steps to curtail abuse of the refugee system. In the past three years, the government has introduced visitor's visas for 12 new countries (including Costa Rica), as well as one for seafarers, to deter economic migrants from using the asylum system as a back door into the country.
The recently enacted U.S.-Canada Safe Third Country Agreement, which requires refugees who land first in the United States to seek a safe haven there, will cut down on the number of claimants in Canada. As many as 6,000 claims were made at the Canada-U.S. border last year.
The Canadian Border Services Agency is also doing more interdiction overseas, stopping those with false documents from flying to Canada, and also detaining those who arrive in Canada with false documents and are unco-operative. (Last year, 13,413 people were detained on arrival, compared to 8,221 in 1998. Most are released after a few weeks.)
Ottawa's modest reforms, moreover, fail to address the core problem: the inability to bring the cases of failed claimants to conclusion. 'We want to push it further on finality,' said an immigration official. 'We want people to face consequences faster, both those found to be refugees and those rejected.'
Prof. Dauvergne believes Canada should retain the positive elements in its system -- a fair adjudication process -- but not shy away from hastening removals and streamlining appeals.
Otherwise, more Harjit Singhs will surface, confirming that those intent on manipulating the system do.
If he ever tires of his life as a well-heeled landlord and decides to leave behind his pale pink home and his bright-red motorcycle in Jalandhar, it would be difficult for Mr. Singh to return to Canada, but not impossible. He is prohibited from filing another asylum claim. But he could put his finely honed skills to work and slip in under a new identity. If immigration authorities failed to detect the falsehood, he would not be fingerprinted. Unless he committed another crime, nobody would ever know that Harjit Singh was back. In this seven-part series, The Globe will examine immigration and its many troubles, from the front lines of people-smuggling investigations to the political backrooms where decisions are made. On Monday, the second instalment will explore the failures to deport even hardened criminals.
Ipsos Reid canvassed 1,200 Canadians across the country in October, 2004; the margin of error is 2.8 per cent.
The refugee system requires a major re-think or adjustment:
Immigrants are at a disadvantage compared to Canadians when it comes to finding employment in their field of expertise:
Strongly agree: 43%
Refugees are selected in camps, and also come to Canada and say they cannot go home because they face persecution. Are there too many in the latter group?
Too many: 53%
Ottawa should be looking for ways to reduce the costs of the refugee system:
The Globe and Mail
Mihaly Illes knew all about his Canadian entitlements. 'That's a violation of my rights,' the Hungarian told officials at his 1998 deportation hearing. 'I'm sure there is a proper way to do this,' he sulked later on. 'I'm not going to participate in it,' he said, ultimately leaving the hearing room to be escorted back to his jail cell.
Since his arrival in Canada in 1992 as a refugee claimant sponsored by a Presbyterian church, the 34-year-old had been no choirboy. He was frequently in and out of trouble with the law. He had made friends with Eastern European mobsters and outlaw bikers. He was facing a slew of drug and gun charges.
Police once found him with a rifle, a semi-automatic pistol and other guns. While serving a seven-year sentence for drug dealing, Mr. Illes allegedly threatened to kill a police officer. Prison officials also say they overheard him talking about how he planned to go back to work dealing drugs as, 'there is very good money in that' in Canada.
Despite all this, Mr. Illes managed to delay his deportation until the fall of 2000. Then, just a few months after being sent home, he waltzed back into Canada, presumably using fake identification. He went back to work dealing cocaine.
Authorities stumbled on Mr. Illes while he was crossing the Canada-U.S. border. They rearrested him and eventually realized he had done a lot worse than come back and deal drugs: He had killed one of his close associates, Javan Dowling.
The 28-year-old man's bullet-riddled skull was discovered near a B.C. logging road in 2001. Prosecutors were able to establish that a drug network had ordered Mr. Illes to kill his friend, and the Hungarian had carted the head around in a Home Depot bucket, showing it to several people before burying it in the wilderness.
Sentenced to life in prison last year, Mr. Illes is just one example of a foreign-born criminal knowing how to work the system. Some simply slip back into Canada to reoffend after being deported. Many others ward off banishment by wrapping themselves in the protections of refugee rights. Still others take advantage of Canada's reluctance to jail immigrant offenders -- and then skip scheduled flights back to their homelands.
Exasperated police, who complain the system is all carrot and no stick, marvel at the case files of some non-citizens who linger in Canada despite amassing up to 30 criminal convictions over time. Vancouver police, who chronically contend with foreign drug dealers, are especially critical of Canada's immigration system.
'My issue is with the system that allows these guys to make repeated refugee claims and each claim has to be investigated as if it has merit,' Inspector Val Harrison said.
'To me, once a person has been ordered deported we should just be able to drop kick them -- every time they come back, we just boot them.'
Easier said than done. Canadian laws do allow for non-citizens, such as refugee claimants or landed immigrants, to be jailed and sent back to their homeland if they commit serious crimes. But officials say the process is extremely difficult, given various complexities, refugee protections and an ingrained tendency to give offenders the benefit of the doubt.
Criminality is just one factor to be considered during deportation hearings. The government has to weigh whether offenders may be abused back at home, or if children left in Canada would suffer in their absence. Such considerations often trump long rap sheets, allowing for indefinite stays.
The Canada Border Services Agency, the federal agency in charge of removing illegal immigrants, says it is cracking down. Officials point to the record number -- more than 10,000 yearly -- of people now considered 'confirmed removals.'
Yet the vast majority of these removal cases involve failed refugee claimants who have never committed any crime and who leave Canada willingly. Fewer removal cases involve known criminals.
In 2001, for example, Canada kicked out nearly 2,000 people for reasons of criminality, or after they were declared a danger to the public. Last year, despite growing overall removals, fewer than 1,700 such offenders were sent packing.
Federal authorities have long promised to get tough. This was especially true a decade ago, when they were presented with two headline-grabbing wake-up calls. In 1994, a gunman ordered deported to Jamaica stayed here long enough to shoot dead Toronto Police Constable Todd Baylis. Then, in a similar slaying, Torontonian Vivi Leimonis was gunned down during a robbery in a cafe called Just Desserts.
Ottawa had a hot issue on its hands and set about overhauling laws and regulations.
Yet the same problems stubbornly keep coming back. In 2003, Auditor-General Sheila Fraser looked at the immigration-enforcement system and made some familiar complaints. Citing incomplete computer databases, a lack of detention spaces, protracted court battles and a general lack of resources, she found that the removal pipeline was badly clogged. In fact, she pointed out, there were 11,000 live cases that hadn't even been assigned to anyone. Moreover, computer databases showed about 30,000 outstanding immigration-arrest warrants for removals that had never been enforced -- some up to seven years old.
The people in question ran the gamut from non-criminals who had simply overstayed to those considered dangerous. The Auditor-General sternly noted that up to half of the immigrants who had been asked to leave 'simply did not appear for the removal interview or the scheduled departure.'
While Toronto now has a special enforcement squad, the Auditor-General noted that ones in Montreal and Vancouver were short-lived.
Enforcement actions can make a huge difference in people's lives, especially those who feel threatened by violent gangsters. One of the best examples of this is a 2001 project, in which police and federal officials teamed up to stanch the bloodletting in Toronto's Tamil community.
A few dozen feuding gangsters were at each other's throats. There were machete-and meat-cleaver melees. At the height of the violence, police say they logged reports of shootings almost daily, including ones on highways and in late-night doughnut shops. At least three homicide investigations were under way when the crackdown occurred.
About 50 reputed gangsters were arrested. Detectives estimated that most of the violence was perpetrated by non-citizens, many of whom had already been in and out of jail. The plan was to round up the thugs and ship them back to Sri Lanka, once and for all.
Leaders of Toronto's 200,000-strong Tamil community lauded the crackdown and the peace that resulted. Yet the resulting hearings have been a big disappointment.
The reputed ringleaders all remain in Canada. Only six lesser figures have been sent back. In fact, four years after the roundup, nearly 30 deportation cases remain unresolved. Judges and adjudicators are largely hung up on the question of whether the refugee claimants will be abused in Sri Lanka.
Kaileshan Thanabalasingham, who has a metre-high file in the Federal Court, is one representative of this group. Police submitted charts and witness statements placing the 33-year-old at the centre of a violent gang. He has three criminal convictions, including weapons offences involving machetes and guns.
In his defence, the accused filed letters from a host of references saying he has the makings of a good citizen -- he even inserted a note from his mom.
More recently, he has admitted to perjury and concealing his gang ties. Despite the violence and lies, he remains free on bail as the lawyers debate whether he'd be abused in Sri Lanka. This type of legal wrangling is not uncommon.
'It's important to remember that anybody who sets foot in Canada has full protection of the Charter,' says James Bissett of the border services agency.
In an interview, the director of inland enforcement, whose 350 officers work to track down the worst of the worst, said the picture is getting better. Detentions and deportations are up, while databases are increasingly co-ordinated. But Mr. Bissett concedes that deportation remains a big challenge.
One chronic case of abuse involves Honduran refugee claimants in Vancouver. Their claims are rejected 95 per cent of the time. Yet dozens linger long enough to openly deal crack cocaine in the city's downtown. They duck authorities then, when arrested, tend to go in and out of jail, make bail and disappear.
This has been going on for nearly a decade, despite periodic enforcement efforts aimed at containing the problem. Vancouver lawyer Richard Kurland, an immigration policy expert, has recently suggested officials launch a pilot program to detain such repeat offenders until they prove they are bona fide refugees.
But the border services agency's Mr. Bissett says the idea is 'a little bit naive.'
'In my humble opinion, that would never stand up to any Charter challenge -- that somehow you are going to round up a certain ethnic minority or certain group, and put them in detention? It just wouldn't fly. No way.'
Besides, there aren't a lot of places to detain people. Canada, a country that allows in more than 200,000 immigrants a year, has just over 300 dedicated spots for immigration offenders. Most of the time, federal authorities negotiate for provincial jail space at a cost of about $200 a day for each offender.
But Mihaly Illes is one foreign-born gangster who will remain behind bars. The Hungarian's murder conviction means he will be locked up until at least 2026.
Mr. Illes was openly contemptuous of the same immigration system that had once granted him a new home. After he was deported, he found it remarkably easy to come back -- another chronic problem that police say they often encounter.
Now a convicted murderer, Mr. Illes still battles to make sure Canada protects his rights. At the B.C. Supreme Court, he successfully argued that his Charter rights were violated when officials automatically revoked his parole after rearresting him at the Canada-U.S. border.
More recently he made a cameo appearance in a Supreme Court decision that gives prisoners the right to carry knives to defend themselves.
The prisoner at the centre of the case, also being held in a high-security penitentiary, said that every night he stashed away two knives. And in the morning he fished them out and provided one, a sharpened steel rod, to his friend, Mr. Illes.
'I have two for about 10 minutes every day until I give my friend his,' the prisoner said.
'Your friend meaning [Mihaly] Illes, right?' a lawyer asked. '. . . That was his, shall we call it, the ice pick?'
'If you want,' the prisoner responded. Deported from Canada
Canada is deporting more people than ever, but criminals represent a small and shrinking portion of the people sent packing.