Prosecuting a Refugee for 'Smuggling' Himself

Abstract

During the summer of 2010, a Thai-registered ship operated by human smugglers – the MV Sun Sea – arrived on Canada’s west coast. The nearly 500 persons aboard, most of whom were Sri Lankan Tamils, sought recognition of their refugee status. Those claims that proceeded to adjudication on the merits were overwhelmingly successful. Some of the refugee claimants, however, had sought to maximize their chances of surviving the perilous voyage on a grossly overcrowded and barely seaworthy vessel by accepting an offer of better food or living quarters in exchange for the provision of services onboard – for example, by assisting with food preparation or operation of the ship. One such refugee claimant testified that he found the food he was being given was inadequate, especially as he was recovering from being sick. He learned that he would only be given extra food if he performed tasks assigned to him by the captain of the ship. In testimony found by Canadian authorities to be credible and trustworthy, he stated that he performed the tasks assigned to him because he feared offending the captain and having his food rations reduced. In this and a number of similar cases, the Canadian government invoked s.37(1)(b) of that country’s Immigration and Refugee Protection Act, which denies access to protection to persons who have “engag[ed], in the context of transnational crime, in activities such as people smuggling...,” the latter notion defined at the relevant time in Canadian law as “...knowingly organiz[ing], induc[ing], aid[ing] or abet[ting] the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by [Canadian law].” A person found to be inadmissible under s.37(1)(b) is not allowed to make a refugee claim, meaning that his deportation becomes enforceable. While still eligible to apply for a “pre-removal risk assessment,” no reliance may be placed in that assessment on the risk of being persecuted, and the rights afforded fall short of those required by international refugee law. The question I address here is the international legality of the prosecution of and de facto exclusion from Convention refugee status of a refugee claimant deemed to have engaged in “people smuggling” by virtue of collaborating with smugglers as a survival strategy.