- Rep Power
Surprise decision saying U.S. not a safe country for asylum seekers
Surprise decision saying U.S. not a safe country for asylum seekers opens door to northbound claims
November 30, 2007
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 doesn't want to face problems like America