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Polite racism
... in the Canadian legal system

By Nakissa Sedaghat
May 29, 2001
The Iranian

As a first generation Iranian-Canadian immigrant (I have lived in Canada for thirteen years), the issue of racism in Canadian immigration law has been of special interest to me, individually, academically, and in my limited practical experience. In this comment, I would like to explore the racism practiced in immigration law in Canada to demonstrate the nefarious consequences of the special brand of Canadian racism called "polite racism".

The international community regards Canada as the ideal of a "POGG" (Peace Order and Good Government) country. The majority of the Canadian public sees claims of institutional racism in the Canadian legal system as isolated incidents involving "a few rotten apples" in an otherwise immaculate system. There also exists an illusion that Canada has a deep-seated "humanitarian tradition" when it comes to immigrants and refugees. Those were the actual words used in the preamble of the 1978 Immigration Act, which represents the cornerstone of modern Canadian immigration. The problem is, at the time of proclamation of Canada's "humanitarian tradition", the country had left behind more than a century of a blatant "White Canada Policy".

To give a complete picture of what the Canadian immigration tradition had been prior to the Immigration Act of 1978 would require a separate paper. Therefore, I will attempt to summarize some important points: From 1867, year of Canada's independence, to 1978, the federal government expressly followed a White Canada Policy, favoring Anglo-Saxon White immigrants over visible ethnicities such as African-Americans, Indians, Chinese, and Japanese. Those who were able to overcome this policy were often allowed in temporarily to fulfill a labor need (such as Chinese immigrants who were let in to build the Canadian railway system), then invariably deported. Various techniques used by the government to keep out specific groups included:

-- A steep "head tax" for Chinese immigrants; A Gentleman's Agreement with Japan whereby the Japanese government voluntarily restricted emigration of its citizens to Canada;
-- A clause in the Immigration Act relating to immigrants "not suited for the harsh climate of Canada", which was a favorite tool of Canadian immigration agents to turn away African-Americans;
-- Deportation and retroactive revocation of citizenship, which were used primarily against the Japanese and also some Eastern European immigrants suspected of communist activities;
-- An open policy rejecting Jewish immigrants, which had particularly dire consequences during World War II;
-- A continuous journey rule, which prohibited immigrants from entering Canada from a country other than their country of application (thus effectively barring Japanese immigrants who tried to avoid the Gentleman's Agreement by applying from Hawaii, as well as Indian immigrants, while it had no effects for Western European immigrants), and finally
-- The Domestic Scheme, which is still in place today, was effectively a modern form of slavery whereby women (primarily from the Caribbean and Philippines) were imported to work as domestic workers in the homes of well-to-do Canadians, without enjoying the full rights of other legal immigrants, and living under constant threat of deportation.

The 1978 Immigration Act is the cornerstone of present-day Canadian immigration policy. It represents the official rejection of the White Canada Policy and its replacement by a set of so-called objective criteria. Because race, ethnicity, religion, and other such factors are not legal criteria of selection anymore, the new system has been proclaimed to be color-blind. It purports to be open to every nation, and every person, and thus is characterized as a "universality system". However, a closer analysis demonstrates that the so-called new era is merely more of the same old brand of Canadian racism, albeit under a more polite mask. That is because the underlying attitudes have not changed and seemingly neutral criteria are applied in a manner that continues the racist legacy of the past. Again, the magnitude of a complete analysis does not permit me to paint a complete picture. Therefore I will confine myself to the following points.

The most significant innovation of the 1978 Immigration Act is the creation of the Points System which supposedly applies only "objective" criteria such as: education, vocational training, work experience, prospects for employment, pre-arranged employment, destination in Canada, age, knowledge of the English and French language, personal suitability, and the presence of relatives in Canada. The problem is that these "criteria" are not objective at all. For example, securing arranged employment might unfairly affect members of certain racial and ethnic groups, as it is harder for them to arrange employment in Canada due to discrimination. This is an example of "secondary discrimination", as it derives from the discrimination already existing in Canadian society.

For Iranian immigrants, the requirement of documentation is a huge obstacle. Applicants will only be granted a visa or landed status if they can prove they meet the Points System requirements. This involves a high amount of documentation: educational diplomas, training certificates, letters from employers, tax returns, bank statements, etc. Because the Iranian government restricts emigration, Iranian applicants often arrange their immigration in secrecy. It is difficult under these circumstances to justify to your employer, for example, to give you a letter documenting your working status. Additionally, the bureaucracy and lack of rule of law means that Iranian immigrants may have to bribe officials, or endure costly delays. Sometimes these delays cannot be explained away to Canadian immigration officials who may reject the application if they are not provided with the proper documents.

Immigration officers have the discretion to waive such requirements, make allowances in certain cases. The problem is that they are under no obligation to do so. It is in fact more plausible that they use their discretion to nefarious effect, when visible minorities are involved. In fact, even when Iranian applicants have gathered the necessary documents, they are often met with suspicion in Canadian consulates precisely because they come from a country where there is a lack of the Canadian value of "POGG". This is reflected on the Iranian individuals who are often outright accused of being "welfare" immigrants attempting to defraud the Canadian government by bringing forged documents. The same attitude can be seen in the treatment of Iranian political refugees before the Refugee Board which unfortunately consists not of "regular" judges but immigration officers. Canadian immigration and refugee lawyers often have to battle a presumption of non-credibility of their client, even if that is never stated out loud.

Personal suitability is a criterion that necessitates subjective judgment on the part of the immigration officer reviewing the application. The officer's discretion is virtually unlimited and thus, there is no way to measure how much the officer's personal prejudices may affect his/her opinion on an applicant's ability to become settled in Canada. This is reminiscent of the judgment calls made by immigration agents during the White Canada Policy era regarding the suitability of potential immigrants to the "climate and other requirements" of Canada. The officer's discretion is further extended by an Immigration Regulation, which gives him/her the authority to override the points system in exceptional cases. Section 11(3) of the 1978 Immigration Regulations "authorizes officers to... accept or refuse to accept an applicant, whether or not the applicant achieves or does not achieve the number of units of assessment. Discretion... is... exercised solely... on the basis that the unit-rating does not accurately reflect an immigrant's chances of becoming successfully established in Canada.

It is difficult to assess the true impact of discretion in the discriminatory application of the Points System in Canadian immigration practice, as the government does not release data on this subject. The amount of unfettered discretion delegated to immigration officers has not decreased since the days of the White Canada Policy. There is no telling how much the personal attitudes of these officers have been altered concerning visible minority immigrants since those days. Landing fees have steadily increased since the inception of the 1978 Immigration Act. The landing fees disproportionately restrict the flow of immigration from poorer countries, which are usually developing countries, and thus, usually racially "visible". The landing fees appear to operate in much the same way as the Chinese head tax did in curbing racially undesirable immigration during the White Canada Policy era.

Many immigration lawyers report that applications from the United States and from Britain are for the most part dealt with expeditiously, while applications from India and the Caribbean involve long delays. Delays are a huge problem in Iran as well, and all the more difficult because they need to travel outside of Iran to Canadian consulates. When they go to neighboring countries, such as Syria, Turkey, or India, the delays are very long. One reason is that Canadian consulates are spread very thinly in racially undesirable regions such as the Middle East and Africa, as well as understaffed. On the other hand facilities in traditionally desirable immigrant centers such as Western Europe are visibly better staffed and better funded. It has been a sad policy at the immigration firm I worked in to persuade our higher income Iranian clients to travel all the way to Germany for example, to process their immigration application, so that they would not be faced with these delays. There are also unexplained delays regarding medical and security checks (One Iranian client, who was a well-respected merchant in his German community and family man for more than twenty years had his security check by the Royal Canadian Mounted Police take two years!).

One prominent immigration lawyer in Toronto reports that the average application for a permanent resident visa from India takes two years to process, but that it is not uncommon to see an application take four years or more. He estimates that applications filed in countries such as Switzerland take only six weeks to process, but that long delays are associated with applications from India, the Caribbean, and African countries. When questioned on these discrepancies, the Canadian government blames delays on the incompetence of the local staff of the consulates. During the White Canada Policy era, the common law did not give aliens any rights in their host countries. Canadian Prime Minister Mackenzie King reiterated this position in 1947 in his Statement on Immigration: "With regards to the selection of immigrants... I wish to make it quite clear that Canada is perfectly within her rights in selecting persons who we regard as desirable future citizens. It is not a 'fundamental human right' of any alien to enter Canada. It is a privilege. It is a matter of domestic policy... The people of Canada do not wish, as a result of mass immigration, to make a fundamental alteration in the character of our population."

As aliens were deemed not to have any rights under the White Canada Policy era, there was accordingly no legal basis to challenge the racist provisions of the old immigration statutes, including Section 38. Also, Canada did not have a U.S. style constitution (i.e. one focusing on individual rights) until 1982.

Over the years, individuals attempted nevertheless to challenge Canada's racist immigration laws. Invariably, the results were always the same. The courts concluded that there was no legal protection for aliens against discrimination. At rare times, the courts struck down a law, but those cases were decided on the basis of provincial-federal jurisdictional challenges, and did not create any precedents which would debate the merits of a racial discrimination claim. Nor did they stop the federal government from enacting more discriminatory legislation.

The 1978 Immigration Act contains few protections against discrimination, apart from the questionable Points System. The act outlines a number of policy objectives that extend the government's political commitment to non-discrimination and multiculturalism into the immigration field. However, these sections of the Immigration Act are statement of objectives only: they do not provide a specific remedy for potential victims of discrimination. They might be used by courts as guides to interpretation and application of a discrimination claim, but they have no inherent legal authority. In addition, the wording of the anti-discrimination section is limited to standards of admission. It does not apply, for example, to the issue of deportation and removals, which might be the subject of a claim of discrimination.

The Canadian Human Rights Commission has a set of guidelines on admissibility of complaints and procedures to carry out the complaint of discrimination in immigration matters. The core problem lies in the fact that the Commission has to investigate and make findings of facts at a preliminary level to decide whether the complaint ought to be processed through the Commission in the first place. Unfortunately, discrimination in the immigration field is: 1) systemic, and 2) often carried out under the discretion of a lower-level bureaucrat. The significance of this is that specific incidents of discrimination are difficult to pinpoint. There is sometimes no evidence that the complainant can rely on due to the secrecy and discretion enshrined in the immigration process. Additionally, even if the complainant succeeds in processing a claim of discrimination, it is likely that the significance of the discriminatory action will be minimized i.e. it will be considered an unfortunate instance caused by the actions of a single individual, in the wider context of a "universal" and "objective" immigration system basking in the glow of Canada's "humanitarian tradition".

Section 15 is the equality rights section of the Canadian Charter of Rights and Freedoms, and therefore the most logical starting point for an individual seeking to lodge a complaint of discrimination against the Canadian immigration authorities. Section 15 provides that "every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical ability."

Section 15 is a right of every "individual", not just citizens or permanent residents of Canada. Some victories have been struck through the Charter by complainants of the immigration system, especially in the context of refugee rights. For example, the case of R. v. Singh in 1985, involving a "due process" claim by a refugee, was landmark because it involved the application of the Canadian Charter to the realm of refugee law. However, no case to my knowledge has ever brought the issue of racism in the field of immigration law at the forefront in judicial decisions. Nor has the potential for systemic discrimination inherent in the very framework of the immigration bureaucratic machine been challenged. An additional problem is the fact that it is very difficult for the thousands of people whose applications are annually denied, delayed, and generally regarded with suspicion, to make a Charter claim from outside Canada. Finally, Canadian society seems content to believe that the institution of immigration law in this country needs no reforms, certainly not reforms that would liberalize further what is already viewed as being a strong "humanitarian tradition".

I believe there is a need for an Iranian-Canadian legal clinic dealing with immigration issues based on the model of community participation of the African-Canadian Legal Clinic based in Toronto. The incorporation of international legal instruments in the strategies of such a clinic would be a key factor in forcing the mainstream authorities to deal with their human rights obligations in practice, not just on paper. Since Canada is heralded in the world today as the ideal of "POGG" and "humanitarian tradition", it is time to use the very concepts that have for so long kept the issue of racism out of Canadian immigration law, to bring the issue to light.

Comment for The Iranian letters section
Comment for the writer Nakissa Sedaghat


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