After emerging from the Red River, Somali man seeking asylum now mired in red tape

Yahya Samatar at the Welcome Place in Winnipeg on Wednesday, Aug. 12, 2015. Samatar has spent much of the last few days filling out many complex documents with help from staff. (Mikaela MacKenzie / Winnipeg Free Press)

The Somalian man who swam down the Red River into Canada to make a refugee claim caught the attention of people from coast to coast and media outlets around the world.”I did not expect that,” Yahya Samatar said Wednesday after being interviewed by the BBC’s Somali service. “It’s very interesting,” said the 32-year-old, who’s found a safe haven in

With more than 2,000 Somali, Eritrean and Syrian refugees drowning trying to cross the Mediterranean Sea so far this year, Saturday’sFree Press story about Samatar surviving his swim struck a chord with people.

“Winnipeg people and Somalis here are really happy about it,” said Samatar. “I’m getting some financial support from Canadian people,” he said a week after shedding his shoes, trousers and belongings in North Dakota to swim into Canada. “I was not expecting this.”

The aid worker with non-government organizations says he was forced to flee Somalia a year ago for the work he was doing. His journalist wife was targeted later. She and their baby fled to Nairobi, leaving their three older children with his mom. Samatar called them to tell them he’s alive and safe in Winnipeg, and they had seen his Free Press story on social media, he said.

Yahya Samatar talks to his lawyer, Bashir Khan, at the Welcome Place in Winnipeg on Wednesday. (Mikaela MacKenzie / Winnipeg Free Press)

“For them, it’s really amazing,” he said. “They’re just happy I’m alive… My family and friends in the Somali community around the world are saying ‘Wow — that was a very difficult journey.’ “

Samatar’s relatives had scraped together US$12,000 to pay smugglers to get him to Ethiopia, then Brazil, then up through Central America on foot and by bus to Mexico, then the U.S., where he was detained as an illegal alien for nearly eight months before his asylum claim was rejected. He headed for Canada.

Here, Samatar’s arduous journey is far from over, says a Winnipeg immigration lawyer who’s handled more than 300 cases for refugee claimants.

New immigration rules imposed three years ago mean anyone with a legitimate refugee claim is up against a system that’s designed to make them fail, said Bashir Khan. He summarized what happens with refugee claimants such as Samatar:

A refugee claimant is dropped off in the middle of the night and walks until they’ve crossed the border into Canada.

“They’ve been outside for nine or 10 hours and are hungry and thirsty when dawn breaks. They’ll go to a farmer or approach a Canadian for help,” he said.

“The farmer in Morden or Winkler is no stranger to this,” Khan said. “They call the RCMP in the area, who books them, and they’re taken to the border crossing right away.”

There, a Canada Border Services Agency officer decides whether or not they can be released based on three grounds: are they a flight risk? Is their identity unclear? Are they a danger to the public? If they’re detained, they’re transferred to the Winnipeg Remand Centre.

If the CBSA releases them, it has no duty to take them anywhere, said Khan.

In Samatar’s case, the CBSA officials were “nice” to call Winnipeg immigration organizations to come and help him, Khan said.

“Most of the claimants released fend for themselves,” Khan said. “They get from there to Winnipeg.

“More often, they’re left to their own devices.”

Wherever they go, they have only 15 days to file for a refugee claim — one of the new rules imposed by the federal government, said Khan.

“That’s where there is a serious problem with justice,” Khan said. The personal information form and other documents they have to complete to make their refugee claim are lengthy, complex and exacting. The mound of paperwork replaces a single 13-page form that asked straightforward questions, Khan said.

“Since the government introduced the changes in 2012, there are now several other forms that are not relevant to the refugee claim in any way. They are nonsense forms that have to be done perfectly in order to make it tougher for anyone seeking asylum.” Language barriers add to the challenge, Khan said.

There is just one worker in Winnipeg at Welcome Place helping refugee claimants fill out all the forms. His position is no longer funded by the federal government, whose elected officials have often referred to refugee claimants as “bogus.” Welcome Place, which is run by the Manitoba Interfaith Immigration Council, says it relies on donations to fund the position because it’s a vital and just service, and refugee claimants deserve the right to a fair hearing.

Correctly completing the pile of paperwork is crucial, said Khan. Any mistake made or detail missed on those forms could be used against them at the Immigration and Refugee Board hearing that normally occurs within 60 to 90 days of their arrival. An error or oversight on the forms could lead the hearing’s adjudicator to a “negative-credibility finding,” said Khan.

Most refugee claimants can’t afford a lawyer, whose fees would cost them between $2,500 to $5,000, said Khan. They can apply for legal aid, but that’s complicated and takes time — not enough time to meet the 15-day deadline, Khan said.

To qualify for legal aid, they have to pass a merit and means test to see if their claim has a reasonable chance of success and if they have a legitimate need. Most pass the merit test, Khan said. Passing the means test is tougher. Without a work permit and no income to show, claimants seeking legal aid almost have to apply for social assistance to prove they don’t have the means to provide their own lawyer.

“They can’t just say ‘I’m surviving,’ ” Khan said. Applying for welfare takes time, he said. If it’s approved and the application for legal aid in Manitoba is approved, it will pay a lawyer up to $1,050 to handle the refugee claim — roughly a third of what legal aid in provinces such as B.C. and Ontario pay, said Khan. “I spend a good 18 hours” preparing for each client’s claim, Khan said. At $80 an hour, he is paid for just over 13 hours of work.

If and when legal aid comes through, there’s usually just four or five weeks to prepare for the Immigration and Refugee Board hearing, Khan said.

“That’s not much time,” he said. They’ll often need documents, paperwork and evidence from abroad that are difficult to obtain, he said. Under the old system, they had a year-and-a-half to prepare for a hearing, he said. With drastically shortened timelines, they’re not getting a fair opportunity to present their case, said Khan.

If they can’t convince the adjudicator at their hearing their refugee claim is legitimate, they’re going to be removed from Canada.


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