Interview with Danielle Smith: Discussing the Spike in Canadian Refugee Claims and the Safe Third Country Agreement

Firm founder Raj Sharma was interviewed by Danielle Smith on her radio show on AM770 on February 13, 2017. A transcript of Part 1 of that interview follows:

Danielle Smith:                  …

Okay, a few of you have been asking, are you going to talk about M103? Yes, indeedy we are. We’ve got Derek [inaudible 00:02:58] coming up a little bit later, but I wanted to get into a whole battery of issues that took place while I was away and are continuing to occur. Remember when I played that clip from our immigration minister, Ahmed Hussen, who I thought did a very measured job of saying, “Hey look, the Americans can do whatever it is they want to do in controlling who comes into their country and we will do what we will do. We will offer temporary asylum to those who find themselves stranded and I have been assured,” he said, “… that Canadians and those who are permanent citizens are not going to be denied entry into the United States.”

Well, as expected, because I think there’s a little bit of confusion around this policy and I think it is being selectively enforced in different ways. I don’t think that there’s uniformity in the ways being enforced. We’ve now got a couple of instances where we have seen Muslims from Morocco, which isn’t even on the list of seven countries, denied entry into the United States. That wasn’t supposed to happen.

Because they also have Canadian citizenship even though that would have been the place of their birth. We’re also seeing, as my next guest predicted, an influx of asylum seekers coming across the US border. He said that this was going to happen. I’m wondering if these numbers are at all surprising to him. Then the third issue that has been raised is we’re beginning to get reports now of a number of refugees or those who do not have permanent status committing crimes in our country. We heard about incidents in Edmonton. There’s been incidents as well in Lethbridge.

A few of you have sent me a couple of other cases. The question is what power do we have when we are confronted with these situations? We’re going to see if my next guest can get through all of those topics. I know they’re all huge, but we’ll try to talk fast. We’ve got Raj Sharma who is a Calgary immigration lawyer and he joins me now. Raj, thanks so much for being with me again.

Raj Sharma:                        Thanks for having me.

Danielle Smith:                  Okay, I’m not even sure where to begin. Why don’t we begin where we left off last time. We started talking about the border wall and what was going to happen with Mexican illegal immigrants in the United States, whether we would expect to see an influx here, but it sounds like in Quebec and Manitoba they’re getting a number of people coming across the border who originally came from African countries. What can you tell us about what you’re seeing and whether or not Alberta is likely to see something like that too?

Raj Sharma:                        Well Danielle, I think you have far greater insight into politics than I do, but I’m reminded of that quote that there are decades where nothing happens and then there are weeks where decades happen. This is just week three of the Trump presidency, but I think for every immigration lawyer it’s almost like dog years right now in terms of reacting and trying to understand the repercussions as to what’s happening.

We’ve had something called a Safe Third Country Agreement for over 10 years. Just on the tail end [as a]  refugee protection officer. I had left in 2004 and that’s when the Safe Third Country Agreement had been put into place. What the Safe Third Country Agreement does is it’s certainly logical, it’s very straightforward. It’s designed to prevent forum shopping. What that means is we recognize that the US is also signatory to these refugee conventions that we’ve signed off on as well.

If someone arrives in the US they’re expected to make a refugee claim there. They’re not entitled to come up to the border and decide that okay, well I just feel like Canada might be a better option for me and vice versa in terms of Canada or people arriving in Canada.

Danielle Smith:                  Can I ask you? Would you the US be the only country we have this type of agreement with because we share a border or do we have these kinds of agreements with other countries as well?

Raj Sharma:                        For the last 10-plus years, although we can designate other countries, the US is the only country that we consider a safe third country.

Danielle Smith:                  Okay.

Raj Sharma:                        We expect people to make a refugee claim in the US. Now there’s some exceptions to the Safe Third Country Agreement. Some of the exceptions are that if you’ve got a family member in Canada. There’s a concept of family reunification or unification, so you might have a family member that’s in Canada. They’ve made a refugee claim in Canada or they’ve got status in Canada. The Safe Third Country Agreement accepts that and allows someone to come to the border and say, “Well, yes, I landed in the US but I’ve got a brother who’s got status here and he’s going to take care of me,” or “I’ve got a wife going through the refugee process and I’d like to just continue on with that here.”

They’re allowed to cross into Canada. There’s other exceptions such as unaccompanied minors and if we’re into the prediction sort of, I know prediction is a sort of Mug’s game, but if we’re into the predictions, my next prediction is that we’re going to see a lot more unaccompanied minors showing up at the border to make that refugee claim.

Danielle Smith:                  How does that work? They would show up, they’d get refugee status and then are they allowed to get an adult guardian, a parent to join them?

Raj Sharma:                        No. They wouldn’t get refugee protection. If they come to the border they’d be allowed to come into Canada. Their refugee claim would be referred and in independent decision maker would make a decision as to whether their refugee claim is meritorious or not. What’s happened though, one of the exceptions to make a refugee claim in Canada even though you’ve been in the US is that if you cross the border illegally or you somehow show up in Canada, you can make a claim inland. You can make a claim at for example Harry Hays here in Calgary.

The Safe Third Country Agreement doesn’t apply to in Canada, inland refugee claim. That’s what we’re seeing. We’re seeing Ghanaians for example. [inaudible 00:08:48] who 10 hour trek into Manitoba. He’s lost all his fingers. He was denied asylum in the US. He’s bisexual or gay and he feared removal and therefore he made that perilous trip into Canada to make a refugee claim here.

What we’re seeing is we’re seeing numbers. Now I don’t want to be alarmist, but these numbers are not, there are dozens of people. In the sense of Quebec you’ve got, in 2016 you had a doubling year over year since 2015. Then the first month alone in January, so we’ve already hit probably 50% of last year which was a doubling of the year prior to that. BC has already doubled. Manitoba has already, they’re kind of swamped. Emerson, Manitoba is swamped. It’s dozens and dozens of individuals there as well, mostly from Africa.

Danielle Smith:                  What I don’t understand, and again I should know this but maybe you can help clue me in, why is it that Manitoba, British Columbia and Quebec seem to be the entry points? Is it just hard to get into Alberta? Is that why we’re not seeing a spike in numbers here?

Raj Sharma:                        Well, I think number one is that our dataset is a little bit incomplete. The CBSA and RCMP haven’t exactly advised in terms of total numbers. I would expect that it’s a proximity sort of issue. I think that Quebec is closer to higher immigrant populations in New York for example or those areas. I would suspect that BC, again you’ve got proximity to maybe California or those Pacific western states.

I think that to some degree it’s ease of entry. Again, these individuals are probably being assisted by traffickers or other individuals and so they’re using the routes that are popular so to speak for now. Once those routes I think are restricted, then you’ll see individuals trying to get access to Canada elsewhere or through other ports of entry. Or sorry, in this case non-ports of entry.

Danielle Smith:                  What are you seeing the official response being because the immigration minister did say that those who find themselves in limbo will be able to have temporary sanctuary here, but I didn’t think that he was going to throw out the Safe Third Country Agreement that we have and that it was going to be a permanent arrangement. Are we just in the middle of not really knowing which direction the government’s going on it?

Raj Sharma:                        Yeah. I think there’s a number of sort of confusing and conflating issues. For one, we had the executive order that was kind of , again, never ascribe to malice that which can be explained by incompetence. We have [an] executive order that was poorly drafted, poorly rolled out that confused a lot of people including US authorities.

The executive order that restricted entry from those seven Muslim countries, that does not impact the asylum adjudication system of the US. What we’re seeing is the Safe Third Country is still good to go because we respect and we expect the US asylum adjudication system to sort of parallel our own. The executive order does not change refugee or asylum adjudication.

If we talk about, and again, this is important because we have to … Unlike the US I’m not going to call other human beings “aliens”, but there’s economic migrants and then there’s refugees. There’s a big difference between the two. The only problem, well, and it’s a significant problem, the issue is this. The US actually grants asylum to a huge number of individuals. It’s one of the leading countries for refugee resettlement. Now it also has a massive undocumented population.

If this increases, and again, not to be alarmist, so far we seem to be managing I suppose, but bear in mind that provincial legal aid systems for example grant coverage to refugee claimants. Those provincial legal aid systems are already overburdened. Of course our refugee adjudication system may well be or become overburdened with a sudden spike in asylum claims. It is something to keep an eye on and something that is a little bit troubling because …

I suppose it’s important not to conflate these two issues, but they’re kind of inter-related in the sense of, and I’m getting lots of consults [inaudible 00:13:33], if the Trump administration executive order, which doesn’t have anything to do with asylum adjudication, it does have a chilling affect on the massive number of undocumented and these have overstayed. They’re in the US. If they decide to come up to the border and risk a crossing inside of Canada to make a refugee claim here, I think that’s completely foreseeable.

Danielle Smith:                  What I am confused about is that this policy, the suspension policy that Trump, the Trump administration has put in place, is only temporary. They want to be able to then retool their priority list and start their refugee process again on lower numbers it sounds like, but also on a different set of priorities.

Does that mean that the people who are coming here, whether they’re from the seven named countries or any other country, does that mean that we’re just going to hold them here temporarily for processing once the US system is back up and running? That’s what I’m a little bit confused about is what is the status of those coming in in this period while the US is sorting out their new policy?

Raj Sharma:                        Well again, I think that in terms of the executive order that we had individuals that were stranded in Canada for example and we had US green card holders that were being denied entry into the US. What our government said is that we will allow them or grant them temporary status. Again, it’s difficult, but let’s not conflate those affected by the executive order with permanent status in Canada.

If someone manages to cross the border into Canada and make a refugee claim in Canada and if their claim in accepted then they would be entitled to apply for permanent residence. Again, these are other ripples, other aftershocks we need to consider if the Trump administration is banning individuals or is not certain or is some sort of trepidation from these seven countries, but these individuals can come to Canada and become permanent residents and thereafter citizens and then have thereafter I guess unimpeded access to the US. That might be problematic in terms of our relationship with the US.

Danielle Smith:                  Very diplomatic in how you say that. I can well imagine it’s going to be quite a topic of conversation between Mr. Trudeau and Mr. Trump today.

Raj Sharma:                        Mr. Trudeau and Mr. Trump are, I was just seeing [that] Mr. Trudeau is off and I just say Godspeed because all Canadians have an interest in maintaining good relations with our biggest trading partner.

Danielle Smith:                  No kidding. Okay, I want to ask you other questions though about those refugees who commit crimes because people are very unsettled with what they read last week about the individual who has been charged criminally with it sounds like sexual assaults against four individuals. Say a little bit more about that story, but I’m wanting to understand what the nature of the law is and what can be done.