By Tobias Stoner
Bashir Khan believes that “Canada has lost its way in the world.” As an immigration lawyer, he sees this most clearly in his work for refugees making asylum claims, and the obstacles they face to legal status. He frames the problem, however, as stemming from a broader sense of confusion about Canadian identity since the end of the Cold War.
Canada likes to think of itself as morally superior to the United States in many ways, Mr. Khan says, and to some extent he agrees. Faced with an applicant for asylum who has already been rejected in the US, his legal strategy is to “put the US justice system on trial” by highlighting how it failed to protect his clients’ rights. Nonetheless, he does not romanticize the Canadian asylum process. Difficulties, he says, trace back to Canada’s recent transition toward a multi-racial state, and were further exacerbated by several terms of Conservative government under Stephen Harper. Now, says Khan, the institutions and political will necessary for a good system will require at least another 5-year term of liberal government under Prime Minister Justin Trudeau to restore.
The story really begins, Khan argues, with Mr. Trudeau’s father, Pierre Trudeau. As Prime Minister in the 70’s and 80’s the elder Mr. Trudeau opened Canada to large-scale immigration by non-whites without, says Khan, a broader national conversation or mandate for such a change. The country has navigated between the poles of nativism and hospitality ever since.
Canada’s asylum system is, in many respects, more generous that the United States’. During the Cold War, it saw refugee admissions as a key to “punching above its weight” on the world stage in the west’s fight against communism, says journalist Deborah Amos. Since then, however, Mr. Khan says, the rationale for accepting refugees has become less clear, and public support has dwindled. For years, Canada asked the US for a mutual agreement to automatically return asylum seekers crossing their border, similar to Europe’s requirement that refugees apply for asylum in the first EU country they enter. In 2004, Canada won that concession, with a few exceptions, as part of a range of agreements negotiated after the 9/11 attacks. Asylum claims on the US border decreased 90%, says Mr. Khan.
Even today, though, 90% of asylum applicants in Canada whose claims were previously rejected in the US are accepted here, he says, noting that “US immigration judges are notorious” for failing to grant such claims. Despite this, several serious problems with the Canadian system still remain, in Mr. Khan’s view. One is the lack of formal court trials for asylum applicants. While many provinces, unlike the US, offer free legal aid to asylum seekers, they appear before administrative immigration board members, only 10% of whom are required to have legal training, Mr. Khan explains. The board members run the hearing on the “Continental inquisitorial model,” he says, in which they ask questions to examine the case rather than letting a lawyer present the claimants arguments. Further compounding the problem, he argues, is the fact that many board members are former border agents installed as permanent judges by the outgoing conservative government. If the board member is trying to trip up or undermine a claimant’s testimony, he says, that’s a very bad sign for their case.
Ultimately, he says, a liberal government will need to remain in power long enough to replace many of those board members, while also navigating shifting public appetite for assimilating new arrivals. Mr. Khan is a realist: refugee policy, he says, will always be a small piece in a practical foreign policy, whose broader interests will dominate.