Jul 24, 2015
Court strikes down Ottawa's ‘safe country’ list for refugees
By: Nicholas Keung
In a ruling Thursday, the court said Ottawa’s designation by country of origin or DCO discriminates against asylum seekers who come from countries on this list by denying them access to appeals.
“The distinction drawn between the procedural advantage now accorded to non-DCOrefugee claimants and the disadvantage suffered by DCO refugee claimants . . . is discriminatory on its face,” wrote Justice Keith M. Boswell in a 118-page decision.
“It also serves to further marginalize, prejudice, and stereotype refugee claimants from DCO countries which are generally considered safe and ‘non-refugee producing.’
“Moreover, it perpetuates a stereotype that refugee claimants from DCO countries are somehow queue-jumpers or ‘bogus’ claimants who only come here to take advantage of Canada’s refugee system and its generosity.”
It is yet another devastating hit to the Conservative government which recently also lost two cases on constitutional grounds over the ban of the niqab at citizenship ceremonies and on health cuts for refugees.
“This is another Charter loss for the (Stephen) Harper government,” noted Lorne Waldman, president of the Canadian Association of Refugee Lawyers, a party to the legal challenge against the DCO regime.
The government said it will appeal the decision and ask the court to set it aside while it is under appeal.
“Reforms to our asylum system have been successful resulting in faster decisions and greater protection for those who need it most,” said a spokesperson for Immigration Minister Chris Alexander.
“We remain committed to putting the interests of Canadians and the most vulnerable refugees first. Asylum seekers from developed countries such as the European Union or the United States should not benefit from endless appeal processes.”
The latest court decision means all failed refugee claimants — whether from the government’s safe country list or not — are entitled to appeal negative asylum decisions at the Immigration and Refugee Board’s refugee appeal division or better known as the RAD.
“This is a very important victory for refugees,” said Jared Will, counsel for the refugee lawyers association. “Today’s court decision means DCO claimants regain the rights to appeal at the RAD. Every refugee deserves to have their claims determined on their own merits.”
This is another example of how the Stephen Harper government “flagrantly” overreaches its authority and disregards the Charter rights, he said, and “the court decision is confirming that.”
Calling the issues “complex,” a spokesperson for the refugee board said it will respect the court ruling and “take the necessary time to examine the decision and its potential impacts.”
In December 2012, the federal government overhauled the asylum system in order to eliminate the growing backlog and expedite the processing of claims and removal of failed claimants.
Not only do claimants face tighter timelines in filing their claims and scheduling a hearing and removal, those from DCO are ineligible to work for six months, appeal a rejected claim or receive a pre-removal risk assessment within three years after an asylum decision.
Three refugee claimants — only identified in court by their initials — from Croatia, Hungary and Romania challenged the constitutionality of the DCO regime after they were denied asylum and subsequently the opportunity to appeal to the newly established refugee appeal tribunal.
Lawyers for the trio criticized the arbitrariness of the country designation process, arguing the DCO regime subjected some claimants to an “inferior determination process” — and discrimination — by limiting their access to opportunities and benefits that are afforded to others.
They also argued that branding the DCO claims as bogus by the government and the use of refugee statistics to trigger designation feeds to the stereotype that their fears are less worthy of attention.
In its defence, the government contended that it does not draw distinctions among claimants based on their national origin but rather whether they come from parts of the world that are generally safe.
The government said the expedited processing for DCO claims, based on the relative safety, is legitimate and conforms to Canada’s international obligation. It explained that it limits the access to an appeal to the RAD only on the basis of a thorough assessment of the country conditions.
However, Justice Boswell rejected its arguments, concluding: “This is a denial of substantive equality to claimants from DCO countries based upon the national origin of such claimants.” He sent all three claims involved in the case to the refugee appeal tribunal for re-determination.