Toronto Star
IMMIGRATION/DIVERSITY REPORTER
Canada will no longer have the right to turn back asylum seekers at the American border under a federal court ruling that deems the United States not a safe country for refugees – opening the door for a potential flood of northbound claimants.
In a surprise judgment yesterday, the court concluded that the three-year-old Safe Third Country Agreement – which denies refugees who have landed first in the U.S. the right to later seek protection in Canada, and vice versa – breaches the rights of asylum seekers under the United Nation Refugee Convention or the Convention Against Torture.
"The interest at stake is highly important to an individual's life, safety and dignity,"wrote Justice Michael Phelan.
"I would therefore conclude that the designation of the U.S. as a safe third country leads to a discriminatory result, in that it has a much more severe impact on persons who fall into the areas where the U.S. is not compliant with the Refugee Convention or CAT (Convention Against Torture), as well as discriminating and exposing such people to risk based solely on the method of arrival in Canada."
Refugees arriving in Canada by air, rather than by land, have continued to have the right to remain in Canada while awaiting a ruling on their claim.
The reasoning issued yesterday, which will essentially nullify the agreement with a final court order expected early next year, is a huge victory for refugee advocates, including the Canadian Council for Refugees, Canadian Council of Churches, Amnesty International and John Doe, a failed Colombian refugee claimant in the U.S., who brought the declaration application to the court.
Activists have long complained that the agreement, which requires refugee claims in Canada and the U.S. to be processed in the country where asylum seekers first land, is unfair and unconstitutional.
"We are somewhat surprised but very pleased with the decision, which is basically everything that we've been looking for,"said lawyer Andrew Brouwer, who, along with Barbara Jackman, Leigh Salsberg and Lorne Waldman, represented the applicants.
"This is a vindication of the rights of refugees that we haven't seen around the world in a while."
In 2005, the applicants filed a judicial review challenging the agreement, which came into force on Dec. 24, 2004, as part of the Smart Border Declaration to ensure tightened border security and more efficient processing of refugee claims in both countries.
Using John Doe as an example, the applicants sought a court declaration that the designation of the U.S. as a "safe third country" for asylum seekers under the agreement is "invalid and unlawful."
They also argued that the U.S. does not comply with certain international conventions protecting refugees and prohibiting returning people to places of torture.
In his decision, Phelan said the issues over the American authorities' use of expedited removals and use of detention, combined with concerns over the U.S.'s rigid application of the one-year bar to refugee claims, the provisions governing security issues and terrorism based on a lower standard, called into question whether the U.S. is safe for asylum seekers.
Despite a section in the regulation that requires the government to conduct required reviews of the agreement and the conditions for refugee claimants in the U.S., the judge wrote the minister has not established a review process.
Both the applicants and Ottawa have until Jan. 14 to file their submissions for a final court order, which would most likely strike down the agreement based solely on yesterday's reasoning.
A spokesperson for Immigration Minister Diane Finley said the Safe Third Country Agreement remains in effect and the government is currently reviewing its options.
However, there's no right to appeal in the proceeding, said Brouwer.
With files from Richard Brennan
CANADA OVERTURNS SAFE THIRD COUNTRY AGREEMENT WITH U.S.
[By Edward C. Corrigan, BA, MA, LLB - Special to the CIC Friday Magazine]
==============================
In a surprise ruling handed down on November 29, the Federal Court of
Canada overturned the "Canada United States Safe Third Country Agreement"
(Canadian Council of Refugees et al v. Her Majesty the Queen IMM 7818-05).
In a 124-page decision Mr. Justice Michael Phelan ruled that the Safe Third
Country Agreement which came into effect on Dec. 29, 2004 and regulated
refugee movement between Canada and the USA violates refugee rights and
that the United States did not meet the conditions required to be
considered a "Safe Country" under the terms of the Agreement.
The Agreement was also held to be contrary to the Canadian Charter of
Rights and Freedoms. "The interest at stake is highly important to an
individual's life, safety and dignity," wrote Justice Phelan.
The Judge stated, "I would therefore conclude that the designation of the
U.S. as a safe third country leads to a discriminatory result, in that it
has a much more severe impact on persons who fall into the areas where the
U.S. is not compliant with the Refugee Convention or CAT (Convention
Against Torture), as well as discriminating and exposing such people to
risk based solely on the method of arrival in Canada."
"For the reasons outlined in this judgment, the United States' policies and
practices do not meet the conditions set down for authorizing Canada to
enter into a Safe Third Country Agreement (STCA)... The U.S. does not meet
the Refugee Convention requirements nor the Convention Against Torture
prohibition (the Maher Arar case being one example.) Further, the STCA does
not comply with the relevant provisions of the Charter," Justice Phelan
continued.
The court ruled that a one-year deadline to file refugee claims in the U.S.
was inconsistent with international conventions because it increased the
risk that claimants would be sent back to countries where they faced danger
or torture. Justice Phelan also noted that the U.S. definition of terrorist
activities can include those who never had any intention of contributing to
terrorism.
"It is difficult to imagine how the governor in council could have
reasonably concluded that the U.S. complies with the Refugee Convention
when the law allows the exclusion of claimants who involuntarily provided
support to terrorist groups. The terrorist exclusions are extremely harsh
and cast a wide net which will catch many who never posed a threat. In
returning claimants to the U.S. under these circumstances, the weight of
the evidence is that Canada is exposing refugees to a serious risk of
‘refoulement’ (return to danger) and torture which is contrary to the
applicable articles of the Refugee Convention and the Convention Against
Torture."
In his ruling Justice Phelan also expressed concerns over the American
authorities' use of expedited removals and use of detention, combined with
concerns over the U.S.'s rigid application of the one-year bar to refugee
claims, and the provisions governing security issues and terrorism based on
a lower standard, all of which called into question whether the U.S. is
safe for asylum seekers and met the requirements of the Safe Third Country
Agreement.
The Canadian Government also ignored a section in the regulations that
required the government to conduct reviews of the Agreement and to assess
the conditions for refugee claimants in the United States. Justice Phelan
noted that the minister has not established a review process as required
under the law.
This ruling of the Federal Court will not immediately change the
restrictions on the right of entry of refugee claimants coming to Canada
from the United States. The Agreement will continue to apply until the
issue is finally decided by the Federal Court. The parties have until
January 14, 2008 to make final arguments.
The ruling came about after the Canadian Council for Refugees, the Canadian
Council of Churches, Amnesty International and John Doe (a failed refugee
claimant from Colombia), went to the Federal Court for a ruling on the
legality of the Agreement. They argued that the Agreement violated the
rights of refugees claimants and that the United States did not comply with
the legal requirements to protect refugees and thus to qualify as a "safe
third country."
The Safe Third Country Agreement closed the border to the majority of
refugee claimants who came through the U.S. and who wanted to make a claim
for protection in Canada. The agreement required that all refugee claimants
who do not meet the limited exclusion provisions set out in the Agreement
(primarily that they have a close family relative in Canada or were
stateless) were denied the right to make a refugee claim in Canada. These
refugees were required to make a claim for asylum in the U.S. Similarly,
most refugees who entered Canada were required to make a claim in Canada
and not in the United States.
The Canadian Council for Refugees, the Canadian Council of Churches,
Amnesty International and John Doe in launching this court challenge,
"argued that this approach would be acceptable if the U.S. asylum system
met recognized international standards for the protection of human rights,
including refugee rights, but it did not."
Alex Neve, Secretary General of Amnesty International Canada, said,
"In Canada, in the United States and around the world, refugees and refugee
claimants are among the most vulnerable members of any society and
regularly experience harsh treatment and systematic disregard for their
most basic human rights." He added, "This decision is an eloquent
reaffirmation of how important it is that governments scrupulously ensure
the safety of refugees and uphold the full range of their human rights.
This is a message that will and must be heard around the world."
The three organizations that initiated the court challenge called on the
Canadian and U.S. governments to immediately suspend the operation of the
safe third country agreement.
A spokesperson for Canadian Citizenship and Immigration Minister Diane Finley said the Safe Third Country Agreement is still in effect and the government was reviewing its options.
(Edward C. Corrigan is a lawyer certified as a Specialist in Citizenship
and Immigration Law and Immigration and Refugee Protection by the Law
Society of Upper Canada in London, Ontario, Canada. He can be reached at
corriganlaw@corrigan.ca
439-4015. This article was edited and slightly abridged for the CIC Friday
Magazine.)
No comments:
Post a Comment