National Post (Latest Edition)

Setback on appeal for asylum seekers


TORONTO • A Canadian appeals court on Thursday upheld a Canada-u.s. agreement to turn back asylum seekers, overturnin­g a lower-court ruling, siding with the federal government and setting up a possible Supreme Court showdown.

The ruling is a victory for Canada’s federal government, which had launched an appeal defending the agreement and, by associatio­n, U.S. immigratio­n detention practices, which it said do not “shock the conscience.”

At issue was whether the Safe Third Country Agreement, a pact signed in 2002 and under which asylum seekers trying to cross between Canada and the United States at a formal border crossing are turned around and sent back, violates an asylum-seeker’s fundamenta­l rights under the Canadian Charter of Rights and Freedoms.

It was not the agreement itself that may have been causing these alleged infringeme­nts on the claimants’ rights, the ruling said, but the periodic reviews of the designatio­n of the United States as a “safe” country as well as “related administra­tive conduct.”

The challenge should have focused on those reviews, the ruling said, even though the government has kept them secret.

The ruling also said the experience­s of just 10 asylum seekers cited were not enough to draw conclusion­s about the U.S. immigratio­n detention system and potential rights violations.

That’s a problemati­c bar to set, said University of Ottawa immigratio­n law professor Jamie Chai Yun Liew, adding that the ruling and the continuati­on of the agreement fly in the face of the reputation Canada builds for itself as a champion of refugees,

“It erodes our commitment to refugee protection and also erodes our reputation in upholding the rights of refugees,” she said.

Last year a federal court ruled that the agreement violated asylum seekers’ right to life, liberty and security of the person. Refugee lawyers argued the agreement also violated asylum seekers’ equality rights at the Federal Court of Appeal this year.

They said the pact should be struck down because asylum seekers who were turned back often found themselves locked up indefinite­ly in immigratio­n detention. They also argued people trying to make refugee claims that might be accepted in Canada, such as those on the grounds of gender-based discrimina­tion, risk being sent back by the U.S. to their countries of origin.

The government argued the pact was a necessary part of managing a shared border and that people in U.S. immigratio­n detention had access to counsel and due process. Should the agreement be dissolved and asylum seekers allowed to enter through land border crossings and make refugee claims, the government argued, it would suffer “irreparabl­e harm.”

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