Ottawa’s safe country list for refugees ‘unconstitutional’

Federal Court ruling latest hit against Harper government

In a major blow to the Harper government, the Federal Court has struck down its so-called safe country list for refugees as unconstitutional.

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-DCO refugee 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 stereo- type that refugee claimants from DCO countries are somehow queuejumpers 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 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 coun- tries 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 on the list or not, are entitled to appeal negative asylum decisions at the Immigration and Refugee Board’s refugee appeal division, better known as the RAD.

“This is a very important victory for refugees,” said Jared Will, counsel for the refugee lawyers association. “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.

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 — 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 the government’s branding of DCO claims as bogus, and the use of refugee statistics to trigger designation, feeds into 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 regions that are generally safe.

The government said the expedited processing for DCO claims 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: “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 redetermination.

“Every refugee deserves to have their claims determined on their own merits.” JARED WILL CANADIAN ASSOCIATION OF REFUGEE LAWYERS