3 min

Conservatives tighten immigration policy

Bill could create barriers for queer immigrants

A proposed government amendment could have a devastating effect on queer claimants whose lives are in danger, say immigration lawyers.

An amendment buried in the federal government’s budget implementation bill tabled on Mar 14 would give the immigration minister sweeping new powers to decide who gets into the country, especially on humanitarian and compassionate grounds, and which groups or countries won’t be considered.

The bill is considered a confidence motion, meaning if it’s defeated the government will fall. The opposition Liberals have already promised to support the bill, guaranteeing its passage.

“It’s a very, very distressing move by this government,” says Michael Battista, who regularly represents queer immigration and refugee claimants. “It sets up a very dangerous precedent.”

Battista is especially worried about a change to the humanitarian and compassionate grounds section. The changes will not affect refugee claimants, because applicants are technically only considered refugee claimants if they file their claim while physically in Canada. Anybody filing a claim from outside the country, no matter how much danger they may be in, has to appeal on humanitarian and compassionate grounds.

“One of the things the bill does is leave it to the minister to determine any humanitarian and compassionate applications from overseas,” says Battista.

Under the proposed amendment, the minister would have the power to simply eliminate all humanitarian and compassionate claims filed from outside Canada, including claims seeking to reunite families or partners.

Battista says the amendments could also affect claimants with HIV or those hoping to bring their same-sex partners to Canada with them.

“For people with HIV who apply in the skilled worker category and are deemed medically unfit, they could apply under humanitarian and compassionate grounds,” says Battista. “Lately I’ve been contacted by a number of clients who were unaware they had to include their partner in their application.”

Robert Blanshay, another immigration lawyer with many queer clients, says the changes could make it even more difficult for queers or members of other minority groups to enter Canada. He points out that applicants are not covered by Canada’s Charter of Rights and Freedoms, leaving immigration officials free to discriminate.

“They need additional discretionary powers like Lake Ontario needs water,” he says. “The question of racial profiling or profiling of other groups is already such an issue. Most of our Canadian visa officers abroad are not Canadians, they’re hired locally. And if the local society is homophobic and you mention your common-law spouse Paul Smith, they might say, ‘We don’t like these people.'”

Blanshay says the amendments in the bill provide no details about how the minister’s powers might be interpreted or what sort of changes to the system might be involved.

“Who the hell knows how they’re going to do it,” he says. “I don’t trust them as far as I can throw them.”

Immigration minister Diane Finley has said the changes will allow the government to eliminate the immigration backlog and to speed up the entry of skilled workers.

But Battista says Finley’s record in dealing with vulnerable groups has not been good, pointing to her response to pleas from queer refugees. The minister has the power to allow failed refugee claimants to stay if she believes they face danger in their homeland.

Most recently Finley refused to intervene in the case of Malaysian refugee Kulenthiran Amirthalingam who was deported Mar 6. Amirthalingam has already been jailed for being gay and could potentially face a jail term of up to 20 years.

“I haven’t been aware of any ministerial discretion that’s been exercised in favour of our community,” says Battista.

Finley also tabled a bill last year that would ban strippers from obtaining visas to enter Canada. That bill is currently in second reading.

Battista says the amendments would put the minister above the legislature.

“It’s like the minister’s given all this power and there’s no parliamentary oversight,” he says.

Blanshay says it’s not clear whether a ministerial decision under the new amendments to exclude a group or individual from consideration could even be appealed to a court.

“If you get a letter saying, ‘We’re not even going to screen your application at all,’ can you appeal that to a court?” he says.

Battista says the government’s secretive method of burying the changes in the larger budget bill is not a positive sign either.

“The way this was done was deliberate,” he says. “The government realized this would be controversial and included it in a bill that the Liberals had already committed to not defeating.”