Terrorism, Nelson Mandela, and a Salvadoran refugee: The human cost of legislative vagueness in Canada’s refugee law

Jose Figueroa’s deportation ordeal may be attributed to what was arguably an avoidable misuse of section 34(1)(f) of the Immigration and Refugee Protection Act. This component of Canadian refugee law states that all members of organizations considered terrorist or subversive to any government, are inadmissable to Canada [1]. In Mr. Figueroa’s case, the Canadian government defines “terrorism” as any “act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act” [2]. Although this legislation may seem reasonable at first glance, section 34(1)(f) has been repeatedly challenged for its vague character [3]. However, some of these challenges have been checked with a legal provision [3], found in the same act, which  allows ministers to grant exemptions to applicants whom they find to not threaten Canada’s “national interest” [1]. One could interpret this as the mistakes made by the discretionary vagueness of one law being corrected by the discretionary vagueness of another.

Consider the case of Eugenio Chicas. He is a prominent Salvadoran judge who, after being invited by Elections Canada to a conference in Ottawa, was detained for 24 hours in June 2009 on the basis of his FMLN membership [4]. Fortunately for Mr. Chicas, a well respected, high level official in the currently elected FMLN government, he was eventually allowed to partake in the conference and received apologies from Elections Canada and Canadian bureaucrats for what happened [4]. Unfortunately for applicants such as Mr. Figueroa, the majority of cases are not so high profile. Thus, the majority of applicants are often resigned to a queue where they wait in limbo for years [3]. Ministerial relief is refused in the majority of cases [3].

In light of such cases, one can see how problematic it is that government employees, who are not specialists on the geographic regions from which refugee applicants originate, are simply matching up vaguely defined criteria [5, 6]. These criteria can easily be applied even to people whom normally it would be unthinkable to label as dangerous, let alone accomplices to terrorism. Case in point: Nelson Mandela. Celebrated as a hero of social justice throughout the world, Dr. Mandela is well known to have been a prominent leader and later president of the African National Congress, the rebel movement that eventually toppled the racist Apartheid regime. Because this noble goal was accomplished with violent means, someone like Dr. Mandela could easily be refused if he were to apply for refugee status in Canada. Arguably, Mr. Figueroa’s application could be considered even less contestable than Dr. Mandela’s would be. In the words of the Minister’s representative who singlehandedly assessed Mr. Figueroa’s case, the “very young” student Mr. Figueroa was “a member only of some political part of the organization [who] never killed, never carried weapons, didn’t direct anyone else to do that [and who’s] only purpose was to co-ordinate matters so as to open up the minds of the people to new and better political realities” [6]. He is also a respectable, productive member of his community who has lived in Langley with his wife and three Canadian children for over a decade, and who’s friends and pastor have repeatedly voiced their support for him [2]. Thus, it is evident that Mr. Figueroa poses no danger to Canada’s national interest and so he is very much eligible for ministerial relief. Unfortunately, this last legal safeguard may be as elusive for Mr. Figueroa as our government’s current refugee legislation is vague.

[1] http://www.legislationline.org/download/action/download/id/1169/file/9f43fe62b2b3d64e5f760d63d5dd.pdf

[2] http://thetyee.ca/Opinion/2010/09/20/OttawasFlawedMemory/

[3] http://www.allacademic.com/meta/p_mla_apa_research_citation/4/0/7/4/7/p407475_index.html

[4] http://www.canadaeast.com/news/article/711359

[5] https://docs.google.com/leaf?id=0B6k6kMnV8WPaMGRhNjZiNjQtNGYwOS00NTBkLWI0YWUtNTYyMjlmMGM1YzJm

[6] Edelmann, P. (2010, October). Teach-In: Fighting Unjust Deportation. Speech presented at the University of British Columbia, Vancouver, BC.

-written by Pawel Mirski


2 responses to “Terrorism, Nelson Mandela, and a Salvadoran refugee: The human cost of legislative vagueness in Canada’s refugee law

  1. Sometimes children see a situation or issue with greater clarity and eyes clear of any preconceived notions. And so it was when a young man with autism, and his father’s smile, explained this situation to his fellow students. The students were very thoughtful and discussed the situation at length. Their conclusions were unanimous. Young Jose’s father is a hero-he put his life on the line to speak out against horror, brutality, and the slaughter of innocents. He is most definitely the type of person who should be welcomed to Canada and embraced with open arms! There are moments in the classroom that make you want to just kick up your heels and dance, and this was one of them!

  2. I live in abbostford , BC we are not Jose i agree with the goverment of canada he has to be out . the law is the law.

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