After being trapped for years in third countries, many feel they have no other realistic option
by Amarnath Amarasingam
In 2007, the Tamil Tigers approached Sabalingam Kumarasamy and asked him to work for them.
When he refused, the Tigers arrested him — he was released six days later only after agreeing to collaborate with them. To escape this enforced recruitment and fearing further trouble, he approached a smuggler who offered to take him to Canada.
After receiving thousands of dollars from Kumarasamy, his smuggler abandoned him in Ghana, where he remains to this day. In Ghana, he applied at the Canadian embassy for a permanent resident visa under the “convention refugee abroad class,” and as a member of the “humanitarian-protected persons class.”
His claim was first rejected by the Canadian embassy in Ghana, but a federal court in Canada later overturned the decision. Kumarasamy now awaits a reconsideration by another official in Ghana. His parents and four siblings are Canadian citizens, while his wife remains in hiding in Sri Lanka. He still awaits a decision, which could take another year or two.
According to his lawyer, Kumar Sriskanda, if a ship leaves from Ghana to Canada tomorrow, Kumarasamy would be the first on board.
“These guys are left waiting four or five years in Ghana, finding a lawyer in Canada, and fighting in federal court. It's hell,” says Sriskanda, “They get fed up, and are easy targets for human smugglers who promise to take them to Canada in three or four months. The decision is an easy one.”
Kumarasamy's story is not an isolated case and it illustrates why Canadians should not jump to conclusions about the ethics of refugees who employ human smugglers.
Not all Tamil migrants leave Sri Lanka with the help of a human smuggler, but since a visa to countries like Thailand is readily obtainable, thousands travel there and wait to be sponsored by their families in the West. This is when things get tricky.
If a migrant cannot reach the Canadian border, like Kumarasamy, they can go to a Canadian embassy in a third country and make a claim there.
An immigration officer at the embassy, who is the sole decision-maker, decides whether or not the individual is at risk of persecution if returned to Sri Lanka. If the official approves the application, the migrant will be permitted to enter Canada.
If rejected, the refugee can appeal to the Federal Court in Canada. If the Federal Court decides in favour of the migrant, the application is sent back to the embassy for review by another immigration officer at the same office.
At any time during this long process, the third country may decide to deport the refugee back to Sri Lanka. Canada does not participate in this decision.
With overseas refugees, Canada accepts about half that of those accepted through inland claims.
“With Sri Lankan Tamil cases, over 91 per cent of inland claims are accepted,” says Hadayt Nazami, an immigration lawyer in Toronto, “but, from my experience, only around 50 per cent of overseas applications are accepted.”
For claims in Canada, the refugee receives a lawyer and is given a hearing.
For overseas cases, says Nazami, “you might show up in some office, the officer may not have had a good day, you don't have a lawyer, you might not have an interpreter there, you don't know if they hold any prejudices, they may not even know about refugee law, and, as government employees, they lack independence.”
Tamil refugees in these countries wait up to five years to have their claim processed. During this time, they are in hiding, working illegally or waiting in boarding houses run by human smugglers.
Some critics ask why refugees do not simply remain in countries like Thailand and Malaysia, and build a life?
“Those countries do not accept permanent refugees,” says Nazami, “they are not signatories to the UN Refugee Convention. You can only stay for a short period of time.
“Even the UN will tell refugees in Thailand, look, we'll give you identification documents, but it will only allow you to stay here for two years. So, find another country that will take you.”
According to many refugee lawyers in Canada, it is the extreme slowness and, often sloppiness, with which refugees are treated by Canadian officials in countries abroad that leads them to find others ways to arrive here.
If the Canadian government wants to use the MV Sun Sea — which docked in British Columbia this month with almost 500 Tamils aboard — to spark a national discussion about Canadian immigration and refugee policy, it should take a serious look at how it can revamp the system to better serve those who make legitimate claims in third countries.
If these overseas cases are reprioritized and expedited, the Canadian government will help to ensure that human smugglers cannot take advantage of refugees in a desperate situation.
Amarnath Amarasingam is a doctoral candidate at Wilfrid Laurier University, and is currently completing his dissertation entitled, Pain, Pride, and Politics: Tamil Nationalism in Canada.