Will a former refugee’s trip to see his dying father cost him his status in Canada?

Understand the personal pain but it does undermine his claim to refugee status as it does with others who return to the country they fled. Hard to have it both ways:

When Medhi Ghamoshi Ramandi was finally granted asylum in Canada in 2019, one of the first things he did was leave the country.

The Iranian man wanted to see his wife and two children, whom he had not seen for six years since his escape from that country’s regime.

Aware of the safety risks of returning to his homeland, he got a refugee travel document from Canada and flew his family to Armenia, where he rented a place for three months so they could try to make up for some of their time lost.

“We had not seen each other for six years and we reunited in Armenia,” recalls Ramandi. “We did a lot of sightseeing there. We had very good memories of the first weeks there. I felt alive again.”

But then came the news of his father being diagnosed with an acute form of colon cancer.

“We didn’t think my father would last six months. There were photos of him with his stomach torn open and stuff like that,” says Ramandi. “My father was pleading, ‘Please come back so I can see you one last time.’ That’s what made me decide to go back.”

Unable to travel to his homeland with his refugee travel document, Ramandi took a chance to apply for an Iranian passport in Armenia and crossed a land border into Iran, at 2 a.m., hoping he wouldn’t be flagged.

Once inside the country, he says, he holed up in his parents’ house before sneaking into the hospital late at night and staying at his father’s bedside till the morning for fear of being spotted and reported to the Islamic Revolutionary Guards.

After 12 days in Iran with his dying father, the 50-year-old returned to Toronto on Sept. 23, 2019, via Armenia. 

He was immediately stopped and held for an investigation by the Canada Border Services Agency.

His offence was possessing a passport from the same regime that he had run away from and “reavailing” himself to Iran. 

To the Canadian authorities, that suggested he no longer required Canada’s protection and that he could be stripped of his refugee status.

“I had to go and see my father. He was dying,” said a sobbing Ramandi, whose application for permanent residence has been suspended since 2019 while officials are investigating whether to refer him to the refugee board and have his protected status ended.

It is a process known as cessation. The number of new cessation applications against individuals who have been granted asylum in Canada — many of them already permanent residents, sometimes for years — rose to 399 in 2021 from just 137 in 2013. The then-Conservative government, looking to crack down on bogus refugees, changed the law to not only go after former refugees’ protected status but also their permanent residence.

Those who return to their country of origin or simply apply for or renew their old passports, even just to visit a third country, can be pursued by Canadian border officials and lose both their refugee status and permanent residence, and ultimately face deportation.

“Technology is improving, so people’s movements are easier to track,” says immigration lawyer Mario Bellissimo. “There is a backlog that has now slowly moved through the system and there are investigations going on. 

“We’re seeing now an apex of cases.”

As of the end of June, there were 572 cessation applications before the Immigration and Refugee Board, down from a backlog of 781 cases in 2020.

Under the immigration law, Canada can take away someone’s protected status if they have:

  • “Voluntarily reavailed” themselves of the protection of their country of nationality;
  • Reacquired their nationality, as in obtaining or renewing a passport from the country of persecution;
  • “Re-established” in that country; or
  • When the reasons for which the person sought refugee protection no longer exist.

Lawyer Justin Jian-Yi Toh said investigations in cessation proceedings are often triggered when individuals are flagged by border agents upon returning from their country of origin or when they are found to have travelled back from a third country with a passport issued from the state they fled. 

Many are also caught when they are asked to provide detailed travel records to fulfil the physical residence requirement for the renewal of their residence cards or citizenship applications.

“Of course, for the average person, they don’t think about all that stuff when they get a passport,” said Toh. “They think, ‘I need a passport to travel. A passport is a travelling licence.’ That’s it.”

In the eyes of Canadian officials, when that happens, it means the refugee traveller has restored relations with their country of origin and no longer needs Canada’s protection.

“Then you see a situation where, for example, people get refugee status in Canada,” said Toh, “but then their parents get very sick and they say to themselves, ‘I’m in danger in this country, but this is my mom, and this is my dad. Maybe I can pop in and see them one last time without people noticing. I’m there and then get out quickly.”

How a court ruling could change things

The refugee board has allowed the majority of the cessation requests referred to it by the border agency, with an acceptance rate above 80 per cent. In 2020, it reached an all-time high, at 95 per cent.

But both Bellissimo and Toh hope that the rising trend will be blunted by a Federal Court of Appeal decision earlier this year that found each cessation proceeding should be “fact-dependent” and should not be applied in “a mechanistic or rote manner.”

The case, represented by the two lawyers, involved Maria Camila Galindo Camayo, who came to Canada for asylum with her mother and brothers from Colombia when she was 12 and who was granted protection in Canada in 2010 as a minor dependent.

After she became a permanent resident in 2012, she was found to have obtained and renewed her Colombian passport, and visited her homeland five times as a teen and adult to visit and care for her father, who suffers from mental illness and recurrent cancer, and to attend a humanitarian mission to aid children in poverty. She also used the passport to travel to Cuba, the United States and Mexico.

When in Colombia, concerned for her own safety, she hired professional armed guards, travelled in multiple cars, taking different routes, and remained inside family members’ homes as much as possible, she told the refugee board.

In 2017, border agents referred Camayo to the refugee board, which took away her protected status and permanent residence in 2019, despite her arguments that she was unaware of the cessation laws and their consequences.

Although on paper Camayo met the three key elements in assessing someone’s return to a country of persecution — voluntary, intentional and actual physical visit — the Federal Court overruled the refugee board decision, saying that the conclusion was unreasonable.

In dismissing the government’s appeal, the Federal Court of Appeal said the test for cessation should not be applied in “a mechanistic or rote manner” and it provided detailed guidance to assist the refugee board in assessing individual nuances leading to someone reavailing themselves to the country that they once feared.

“The focus throughout the analysis should be on whether the refugee’s conduct — and the inferences that can be drawn from it — can reliably indicate that the refugee intended to waive the protection of the country of asylum,” the appeal court said in sending the case back to the refugee board for redetermination.

‘My father was dying of cancer’

Ramandi said no one ever advised him not to use an Iranian passport or about the potential consequences. He said he tried to keep a low profile when sneaking back into Iran because he worried about his safety. The visit to Tehran wasn’t even part of his plan as he only learned about his father’s hospitalization toward the end of his three-month trip in Armenia.

“My father was dying of cancer. … The immigration issue didn’t even cross my mind,” said Ramandi, a Protestant Christian, who fled religious persecution in Iran and arrived in Canada in 2013 with the help of smugglers.

Still distraught from leaving his father and family behind, he said he was terrified when he was stopped by the border agents at Toronto’s Pearson airport.

“I told them about seeing my family in Armenia and about my father in Iran. I told them everything about the trip,” Ramandi, a baker, said through an interpreter. “I had no idea about the immigration implications.”

His father died a few months after his visit and Ramandi has not travelled or seen his wife, son, 18, and daughter, 14, while his permanent residence application is on hold.

“I came here when I was 41 and I’m now 50. It’s been almost 10 years and I’ve only been able to spend three months with my family in Armenia,” said Ramandi. “It’s so hard. I don’t have any direction for my life anymore.”

Immigration lawyer Richard Wazana said those with “ceased” status are also barred from appeals and risk assessments before removals for a year and are only eligible for humanitarian considerations if there are children involved and their interests are affected, or if there’s a serious mental or medical health issue.

The law, he said, has caused a lot of misery for these former refugees, few understanding that their protected status can be taken away even after they become permanent residents.

“Many people don’t apply for citizenship because they’re under the mistaken impression that permanent residency is, as it sounds, permanent. Unfortunately, it’s far from it,” he said. “Really, no one is safe until they obtain citizenship.”

Wazana has a client who fled political persecution in Libya and returned to see family only after the authoritarian regime of Moammar Gadhafi fell and it was safe for him to visit. Even though Canada has deferred all removals to Libya due to the volatile political situation there, the border agency pursued cessation of the man’s permanent resident status.

“Even using that passport from your home country to travel to a third country could potentially lead to a cessation application,” said Wazana. “My advice is just to forget about that passport, put it away and never use it again.”

Source: Will a former refugee’s trip to see his dying father cost him his status in Canada?

Did Canada use facial-recognition software to strip two refugees of their status? A court wants better answers

Judge Go’s activist background likely influenced this decision questioning the lack of due process and transparency over decision-making:

Canadian authorities can’t just brush off allegations that they are using facial-recognition software to discredit asylum-seekers, a court has ruled.

The decision by the Federal Court comes in a case that has cast a spotlight on the possible use of the technology by the Canada Border Services Agency — a practice the agency denies.

At the centre of the case are Asha Ali Barre and Alia Musa Hosh.

The pair claimed to be Sunni Sufi Muslims, who fled sectarian and gender-based violence from Al-Shabaab and other militant Islamist groups in Somalia.

They were accepted by Canada as refugees in May 2017 and July 2018, respectively.

In 2020, border officials moved to strip their refugee status before the Refugee Protection Division tribunal, alleging in part through photo comparisons that they were in fact Kenyans, a claim the women denied. Barre and Hosh lost their refugee status, and have appealed in court.

At issue was the alleged use of facial recognition technology, but also the privilege that authorities enjoy in withholding the source of their photo comparisons — and their investigative methods — under the Privacy Act.

“The RPD gave a cursory nod to the Respondent’s Privacy Act argument and failed to engage in the necessary consideration of balancing the alleged protection of privacy rights with the Applicant’s procedural fairness right to disclosure,” Judge Avvy Go wrote in a recent ruling in favour of the women’s joint appeal.

“The RPD’s swift acceptance of the Minister’s exemption request, in the absence of a cogent explanation for why the information is protected from disclosure, appears to be a departure from its general practice.”

Last year, Canadian Privacy Commissioner Daniel Therrien found that the RCMP committed a “serious violation” of Canadians’ privacy by conducting searches of Clearview AI’s facial recognition database, which contains billions of photos of people scraped from the internet, including from social media sites.

Facial recognition technology has been used in Canadian immigration settings to verify the identities of incoming travellers through automated kiosks at airports, but border officials have maintained they don’t use it in immigration enforcement.

Lawyer Quinn Campbell Keenan, who represented Barre and Hosh, was pleased with Go’s decision.

“It sent a clear message to the minister and the Canada Border Services Agency against the use of photo comparison or matching software to single out individuals for possible deportation on the basis of this very dubious photo matching technology,” she told the Star.

Other lawyers also hailed the decision after seeing a surge of former and current Somali refugees having their identities challenged by the border agency through photo matching with Kenyan travellers who had previously entered Canada legally. Many of those cases are now being contested in court.

“There has to be a balanced approach where, at the minimum, the RDP should at least review the possible disclosure that the border agency has,” said lawyer Tina Hlimi, who has seen more than a dozen cases in her practice since 2019 where Somali clients’ identities were challenged based on this investigative method.

“It’s refreshing to see a different perspective when we have been arguing in vain that border agents are perhaps using facial recognition technology.”

According to the court, in support of her asylum claim, Barre had “an identity witness,” a Canadian citizen from Somalia she had met in Somalia, and a letter from the Somali Multi Service Centre, which had conducted a verification assessment of her knowledge of and connection to Somalia.

Hosh’s refugee acceptance was based on a survey by the Loin Foundation that verified her identity, as well as her ability to speak about the Tunni clan and converse with the interpreter fluently in Somali, the court said.

In their attempts to revoke the women’s refugee status, Canadian officials submitted evidence based on photo comparisons between the women and two Kenyan citizens who arrived in Manitoba as international students, just before Barre’s and Hosh’s refugee claims were made.

Despite the refugees’ objection to the photo comparison and allegation about Clearview AI database being used in their cases, the refugee tribunal agreed with the government that the firm ceased providing services in Canada on July 6, 2020, and an “App that is banned to operate in Canada would certainly not be used by a law enforcement agency such as the CBSA.”

It also found “great similarities” between the photos in either case, even though lawyers for the women had argued that facial recognition software is unreliable and particularly flawed in identifying darker-skinned females in research studies.

The court was critical of the tribunal’s conclusion that Clearview AI was not involved when no inquiry was made as to when the photo comparisons were created in the two cases.

“While the RPD relied upon the fact that the RCMP was the last remaining customer of Clearview AI and stopped using it in 2020, this does not necessarily mean (Canada Border Services Agency) was not using the software when the photographs were collected in 2016 and 2017,” said Go.

“The RPD’s finding that the Minister did not use Clearview AI was not supported by evidence, and it failed to consider the Applicant’s submissions highlighting the danger of relying on facial recognition software.”

Government lawyers argued in court that Barre and Hosh were provided with the photos of the Kenyan women, were aware of the case they had to meet and had the opportunity to respond. The obtaining of the photographs and comparison, they said, was a matter of an investigation done by border officials, and thus subject to non-disclosure privilege.

“The RPD reached a conclusion about the reliability of the photo comparisons based on the Minister’s say-so with no further details about the ‘how.’ It then took the Minister’s word that they must protect the details of their investigation under the Privacy Act without having to demonstrate whether the requirements for non-disclosure, as set out in the Act, were met,” Go said.

“The RPD’s conclusion, which was void of transparency, intelligibility, and justification, must be set aside.”

Lawyer Paul Dineen, who represented Barre and Hosh before the RPD, said the women are not out of the woods as they wait for a new tribunal hearing to decide if they can keep their refugee status.

However, depending on where further arguments go, he said officials are left with two choices.

“They either have to reveal the methods of the investigation or they have to withdraw the photos,” said Dineen.

Both Barre and Hosh declined the Star’s interview requests.

Source: Did Canada use facial-recognition software to strip two refugees of their status? A court wants better answers

Federal Court getting clogged with immigration appeals – Canada News

Without earlier pre-pandemic data, hard to assess the degree to which this is a significant increase. In the context of backlogs etc, clearly could be:

The number of people seeking the Federal Court’s help to determine the status of their applications to become new Canadians has increased by almost seven times over the past three years, according to the latest figures provided to New Canadian Media.

Commenting on a recent NCM article, Immigration, Refugees and Citizenship Canada (IRCC) said that it is now dealing with 445 mandamus files referred by the Federal Court. There were only 65 such cases for the 2019/2020 period.

In the immigration context, a mandamus application is a judicial remedy compelling the performance of a public legal duty by IRCC that is owed to an applicant.

According to the latest IRCC numbers, 445 mandamus applications were referred by the Federal Court for the 2021/2022 year as of Feb. 28, including 153 in family class, 239 in economic class and 53 as refugees.

“The increase in mandamus applications is in part due to closures at various processing offices and Visa Application Centres during COVID-19 that led to longer processing times for applicants, and in part due to our growing inventory and the number of applications received by IRCC every year,” Julie Lafortune, IRCC’s communications advisor, told NCM.

“A number of complex files involving paper application forms have been seriously impacted by the office closures, and all of our partners upon which we rely on for the processing of complex files have also been experiencing longer delays than usual.”

Victor Ing, a Vancouver-based immigration lawyer, said the latest numbers clearly confirm a marked increase in mandamus cases over the past year, which is consistent with the day-to-day experiences of immigration law practitioners.

“Applying for mandamus is not something that most clients take lightly. Starting a lawsuit against the party you want to receive a positive decision from is counterintuitive, but many clients eventually reach a tipping point where they no longer feel like there is an alternative path,” he told NCM.

“In my experience, many mandamus applications can be avoided if IRCC would communicate more openly and honestly with clients. Too often they are made to feel like a file number, and what is easily overlooked is that they are all individuals whose lives have been put on hold waiting for decisions they expected to receive much sooner,” said Ing.

“The frustrations of the public around COVID-19 related to processing delays are palpable, and IRCC needs to continue to develop new tools and policies to increase transparency in the decision-making process and to reassure clients that their cases will be processed in a timely manner.”

There are now close to two million applications trapped in a massive backlog that IRCC is struggling to clear.

IRCC undeterred

At the same time, Canada aims to attract about 1.3 million new immigrants over the next three years to help fill critical labour shortages and fuel post-pandemic growth.

The 2022–2024 Immigration Levels Plan aims to continue welcoming immigrants at a rate of about one per cent of Canada’s population, including 431,645 permanent residents in 2022 (an increase of about 21,000 people from its original plan), 447,055 in 2023, and 451,000 in 2024.

The Government of Canada recently announced that it has allocated $85 million in new funding to reduce IRCC application inventories. The funding will build on what IRCC has already done to reduce wait times, such as hiring approximately 500 new processing staff, digitizing applications, and reallocating work among its offices around the world.

Ing said that while IRCC has introduced many innovative systems since the start of the pandemic, the implementation of these systems has been lagging, contributing, in some cases, to the growing frustrations of the public.

“For instance, on February 8, 2022, the Minister announced a new online tool that would allow Family Class applicants for permanent residence to track the status of their cases online,” he said. “I shared the announcement with one of my clients who would have benefited from the new tool, but she was unable to make use of it due to technical issues.”

Numerous mistakes

Chun He, a student-at-law, in an article for the Canadian Immigration Lawyers Association (CILA), said IRCC’s appetite for automation has led to numerous mistakes and dehumanizing experiences for people trying to come to Canada.

He said that the multiple, rapidly designed electronic IRCC portals implemented without adequate testing or stakeholder feedback has resulted in poor functionality and user frustration.

“Advocates note that they have never experienced so many portals not working. The authorized representative portal has been out of order for days at a time. These glitches and kinks in the system have created huge problems for clients, as it has forced some of them to file applications at the last minute, lose their status, or even stop working,” wrote He.

“Overall, the primary outcome of this never-before-seen multi-portal experiment is ongoing distress for clients and their representatives.”

Source: Federal Court getting clogged with immigration appeals – Canada News

Plaidoyers pour plus de juges issus de la diversité

Of note (diversity has increased significantly under the current government):

Plusieurs postes de juges étant à pourvoir, le gouvernement Trudeau devra faire plus de place à la diversité dans la magistrature, plaident deux associations d’avocats en immigration au Canada. Le manque de diversité est particulièrement criant à la Cour fédérale, où à peine le tiers des 43 juges, y compris le juge en chef et la juge en chef adjointe, sont des femmes et où les minorités visibles se comptent sur les doigts d’une seule main.

« C’est étonnant. D’autant plus que 85 % des dossiers de la Cour fédérale sont en lien avec l’immigration », dit Guillaume Cliche-Rivard, président sortant de l’Association québécoise des avocats et avocates en droit de l’immigration (AQAADI).

Pour lui, il est indéniable que ces dossiers d’immigration « sont imprégnés du bagage culturel, personnel et historique des personnes qui se présentent devant la justice » et que les tribunaux doivent être plus « représentatifs de la société canadienne moderne ». « C’est pourquoi l’AQAADI croit aussi que la myriade de postes vacants de juges des cours fédérales devraient être pourvus par des personnes appartenant à ces groupes minoritaires », lit-on dans la lettre qu’elle a envoyée au ministère canadien de la Justice.

Cet avis est partagé par l’Association canadienne des avocats et avocates en droit des réfugiés, qui a également enjoint par écrit au ministre de la Justice, David Lametti, de faire une plus grande place à la diversité au sein de la magistrature. À l’automne dernier, des dizaines d’associations juridiques et de groupes de défense des droits des minorités ont aussi envoyé une lettre au procureur général du Canada appelant à ce que les postes judiciaires actuellement vacants à la Cour fédérale soient pourvus par des juges de couleur.

Depuis 2016, et par souci de transparence, le Commissariat à la magistrature fédérale est tenu de publier des données sur les nominations et les candidatures ventilées en fonction du genre, de la diversité et des compétences linguistiques. Entre les dernières élections d’octobre 2019, où le gouvernement Trudeau a été reconduit, et octobre 2020, 60 nouveaux juges ont été nommés, dont 65 % (39) étaient des femmes et 43 % (26) étaient autochtones, issus de minorités visibles, de groupes ethniques ou culturels ou de la communauté LGBTQ. Le quart (15) des juges disaient maîtriser les deux langues.

Même s’il est toujours possible de faire mieux, Andrew Griffith, ex-directeur de ce qui est aujourd’hui Immigration, Réfugiés et Citoyenneté Canada, qui s’est intéressé à la question dans des articles pour l’Institut de recherche en politiques publiques, souligne cette amélioration. Il appelle à constater tout le chemin parcouru depuis 2016, où les femmes et les minorités visibles étaient encore bien moins présentes.

Toutefois, ce chercheur à l’Institut canadien des affaires mondiales reconnaît qu’il y a peu de diversité à la Cour fédérale, une situation qu’il n’arrive pas à expliquer. En 2016, à peine 30 % des juges de la Cour fédérale étaient des femmes, mais depuis que le gouvernement Trudeau est au pouvoir, la majorité (52,6 %) des juges qui ont été nommées sont des femmes, selon sa propre compilation mise à jour en avril 2021.

Ce progrès est moins notable pour les minorités visibles et les Autochtones. Le pourcentage de minorité visible était d’à peine 2 % en 2016 et, depuis, environ 8 % des juges nommés appartenaient à cette catégorie. Paul Favel est le seul juge autochtone, sur 43 au total, à la Cour fédérale, et le deuxième dans l’histoire de cette cour.

« Entre diversité et francophonie »

Guillaume Cliche-Rivard soutient que cette ouverture à la diversité ne devrait toutefois pas se faire au détriment de la langue française. « La petite tension qu’on a, c’est qu’on est pris entre diversité et francophonie. On veut favoriser l’accès à des minorités, mais pas au détriment du français, c’est une position difficile. Et on sait qu’un faible pourcentage des juges fédéraux maîtrisent suffisamment le français pour tenir des audiences », dit-il.

Me Cliche-Rivard souligne qu’il y a environ deux ans, il a plaidé devant la Cour suprême et qu’il l’a fait en français. Or, il n’a pas eu le sentiment que les juges anglophones pouvaient tout saisir de son argumentaire. « Je n’ai pas eu l’impression que j’avais été bien compris des juges anglophones. » La ministre responsable des langues officielles, Mélanie Joly, a promis de proposer une réforme de la loi sur les langues officielles d’ici la fin 2021 et s’est engagée à obliger le bilinguisme pour les juges de la Cour suprême.

Pour son dernier tour de piste, le président de l’AQAADI, qui tire sa révérence après un mandat de trois ans, n’a pas seulement voulu interpeller le gouvernement Trudeau sur la nécessité de diversifier la magistrature : il souhaite aussi lui rappeler ses devoirs en matière de protection des réfugiés.

Peu après le dépôt du budget de 2019, Justin Trudeau avait soulevé un tollé en donnant l’aval à une nouvelle stratégie frontalière visant à empêcher les demandeurs de chercher l’asile au Canada s’ils ont déjà présenté au moins une demande semblable dans certains pays, dont les États-Unis. « Même les conservateurs n’étaient pas allés jusque-là », souligne Me Cliche-Rivard, encore en colère à propos de cette mesure.

Soulignant certaines avancées, l’avocat rappelle néanmoins que c’est sous l’actuel gouvernement libéral que les délais pour obtenir une résidence permanente sont de plus de 27 mois, qu’un demandeur d’asile peut être entendu en audience plusieurs années après son arrivée au Canada et que des réfugiés peuvent attendre plus de trois ans avant d’être enfin réunis avec leurs enfants restés dans le pays d’origine. « Et que dire du nombre de dossiers de travailleurs qualifiés du Québec. Il y a encore beaucoup de gros problèmes », conclut Me Cliche-Rivard.

Source: https://www.ledevoir.com/societe/610629/justice-plaidoyers-pour-plus-de-juges-issus-de-la-diversite

The Mixed-Orientation Couple: a dramatic development in Canadian immigration law

Notable:

Immigration law both shapes and reflects the society that produces it. A recent and pioneering case, A.P. v. Canada (Citizenship and Immigration), 2020 FC 906 (CanLII) makes this adage clear. In it, we see the dialogic, interpretative, and pragmatic nature of Canadian policy and law.

The Federal Court of Canada recently confronted a case involving a rather unusual set of circumstances, where a gay man and a straight woman who shared a child were denied conjugal sponsorship. The facts are as follows:

A man known to us only by his initials, A.P., came to Canada several years ago. A.P. claimed that he was subject to persecution in his unnamed country of origin due to being gay. A.P’s claim was successful, and he obtained protected person status and permanent residency in Canada. Some time later, A.P. met up, in a third country, with a heterosexual female friend from university named A.M. After what the court describes as a ‘night on the town’, A.P. and A.M. had intercourse and a child resulted from this encounter.

A.P. and A.M. decided to try to parent the child together as a couple, even though A.M. continued to identify as gay, not bisexual. A.M. could not return to his home country, and A.M. and A.P’s efforts to relocate to or marry in a third country failed. Consequently, A.P. sought to sponsor the child, and A.M. as A.P.’s conjugal partner, through the family class of Canadian immigration.

A Canadian immigration officer denied A.P’s application. A.P. then appealed to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB), a specialized Canadian administrative tribunal that handles such matters. The IAD upheld the officer’s determination that A.M. was not A.P.’s conjugal partner, meaning that A.P. could not sponsor her as such. Among other factors, the IAD cited, in its decision, its conclusion that “a homosexual man and a heterosexual woman are [not] able to meet the sexual component of conjugal partnership,” and based on the following factors concluded that the sexual and personal behaviour of the couple was inconsistent with a conjugal partnership.”

A.P. appealed the I.A.D. ruling to the Federal Court of Canada. This court determined that the officer’s decision was not reasonable, and sent it back to another officer for redetermination. Justice Fuhrer, in her judgment, was emphatic that the IAD had erred in holding that A.P. and A.M. were not a conjugal unit. Justice Fuhrer noted that, notwithstanding the differing orientation of A.P. and A.M. the two were, with the use of sexual aids, enjoy sexual intimacy. Moreover, argued Justice Fuhrer, M. v. H. (1999), a landmark Supreme Court Canada case on the rights of same-sex couples, provided a holistic framework for determining the existence of a conjugal union; sexual intimacy or the lack thereof was not necessarily a determining factor. Thus, concluded Justice Fuhrer, it was entirely possible that what she termed a ‘mixed-orientation couple’, even one that did not have any sexual intimacy, could form a conjugal union. Accordingly, the Federal Court remanded A.P.’s sponsorship application to another officer for redetermination.

The above series of events illustrates so many facets of Canada and the judicial system. The ability to challenge a decision one considers unjust. The expansive and evolving interpretation of statute. The independence and the ability of the Courts to intervene and determine that a decision is unreasonable, and therefore overturn it. The gradual but clear development in Canadian law that sexual orientation is an unacceptable ground of discrimination. The expansion of the Canadian understanding of the family – from the traditional heterosexual married couple (generally, with children) to include same-sex couples as well as those which are not formally married – like A.M. and A.F. The role of precedent, of other cases, as a basis for re-understanding the issue at hand. The supremacy Canadian Charter of Rights and Freedoms over laws and interpretations with which it finds itself in conflict.

Where to from this decision? A.P. and A.M. and their case go back to an immigration officer. The current Canadian government, which has emphasized the defence of the rights of sexual minorities, even going so far as to formally apologize for discrimination that previous governments perpetuated against LGBTQ2+ individuals, seems highly unlikely to challenge the Federal Court’s determination in any way. Will other current Canadian understandings of what the family is, for the purposes of immigration – who is a parent, who is a child, the means of determining a relationship is genuine – change? Will Parliament or subordinate rule-makers (Ministerial officials, etc.), pre-empt the Courts, or will the Courts continue to pioneer new interpretations? Will there be a backlash against the either phenomenon – say, a feeling that the Court has gone too far? How will other countries receive the dramatic decision emanating from Canada? Will they emulate it? Or forcefully reject it?

This much, we can say with confidence: The Federal Court’s decision in the case of A.P. and A.M., is both bold and grounded in Canadian jurisprudence, a product and a shaper of Canadian law. And it raises as many questions as it answers.

Source: The Mixed-Orientation Couple: a dramatic development in Canadian immigration law

Liberals appealing ruling striking down Canada-U.S. asylum agreement

Not surprising given that the ruling reflected in part the particular circumstances of asylum seekers that were at the heart of the case:

The Liberal government is appealing last month’s Federal Court decision that ruled the Safe Third Country Agreement — Canada’s asylum agreement with the United States — infringes upon the Canadian Charter of Rights and Freedoms.

In a decision released July 22, Justice Ann Marie McDonald said the agreement — which stops people from entering either Canada or the U.S. at official Canada-U.S. border crossings and asking for asylum — violates the section of the Charter guaranteeing “the right to life, liberty and security of the person.”

McDonald suspended her invalid ruling for six months to allow Parliament to respond.

Public Safety Minister Bill Blair said in a statement Friday the government filed an appeal today because they believe there are factual and legal errors in some of the court’s key findings.

“There are important legal principles to be determined in this case, and it is the responsibility of the government of Canada to appeal to ensure clarity on the legal framework governing asylum law,” reads the statement.

“Canada has a long and proud tradition of providing protection to those who need it most by offering refuge to the world’s most vulnerable people, and the government of Canada remains firmly committed to upholding a compassionate, fair and orderly refugee protection system. The STCA remains a comprehensive vehicle to help accomplish that, based on the principle that people should claim asylum in the first safe country in which they arrive.”

The 16-year-old agreement, which remains in effect, recognizes both countries as “safe” countries for migrants and states that refugee claimants are required to request refugee protection in the first country they arrive in — meaning Canadian border officials would send back to the U.S. any would-be refugee claimants arriving at an official border crossing into Canada.

The Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches and a number of individual litigants brought the original case forward and argued that by returning ineligible refugee claimants to the U.S., Canada exposes them to risks — including detention and eventual deportation to countries where they could face harm.

Conservative MP and immigration critic Peter Kent immediately issued a statement supporting the appeal.

“While we are pleased the government has decided to appeal this ruling, Canadians’ confidence in the immigration system has been rocked by years of Justin Trudeau’s failure to address these concerns, and his failure to restore integrity and compassion to the immigration process,” he said in a statement.But the NDP’s critic Jenny Kwan called the move the a “heartless and shameful act.”

“By appealing this ruling, the federal Liberals are saying they’d rather let people seeking the safety of asylum here in Canada suffer under Donald Trump’s rules, than stand up for human rights and Canadian values,” she wrote in a statement Friday afternoon.

“It’s un-Canadian.”

Source: Liberals appealing ruling striking down Canada-U.S. asylum agreement

Case of woman wrongly accused of spying for Russia requires ministerial review, intelligence expert says

Pretty fundamental mix-up along with unwillingness to consider an error, until forced by the courts. Wark’s point regarding the systemic weaknesses sting:

Most Canadians seem to have an extraordinary — sometimes naive — faith that if they tell the truth, their government will do the right thing, come to the right conclusion, or make the right decision.

It is one of those charming, but also maybe alarming aspects of our character.

David and Elena Crenna certainly fell into that category at the beginning of their bizarre six-year legal odyssey that saw the Canada Border Services Agency’s war crimes investigation unit accuse Elena, a former Russian translator, of being a post-Cold War spy.

The Liberal government quietly abandoned its case against her last month after a Federal Court judge essentially challenged justice department lawyers and border agency officials to read the legal and dictionary definition of espionage.

“I am unable to reasonably find any reason to believe the applicant was engaged in anything secret, clandestine, surreptitious or covert,” Federal Court Justice Henry Brown ruled in April.

Crenna had previously been deemed inadmissible to Canada by an immigration adjudicator who sided with a Canadian Border Agency assessment that concluded she helped the Russian security service spy.

Governments talk a lot today fighting disinformation, particularly Russian and Chinese online attacks and smears, but abjectly fail to appreciate that lying to sow discord and lying to save one’s skin is a time-honoured, well-honed tradition of spies, according to one of Canada’s leading intelligence experts.

More that, there is a dearth of institutional knowledge, understanding and significantly an appreciation of recent history within federal officialdom, said Wesley Wark, a professor at the University of Ottawa.

He is withering in his criticism of Crenna’s case, and frightened by its implications.

‘A ruthless waste of time’

“This isn’t just a minor case of bureaucracy gone slightly astray,” Wark said in an interview. “I think it is a major case of a bureaucracy that just didn’t know how to operate in the face of these kinds of threats. We need to be able to distinguish between what’s real and what’s not.”

The federal case against Elena Crenna — which Wark described as “a ruthless waste of time” — rested on the dubious word of a now-dead Russian defector.

While doing translation and marketing for a humanitarian housing project in Tver, Russia, the former Elena Filatova said she was approached by an agent of SVR (formerly known as the KGB and later the FSB) who wanted to know what the Canadians were doing.

It is a major case of a bureaucracy that just didn’t know how to operate in the face of these kinds of threats. We need to be able to distinguish between what’s real and what’s not.– Wesley Wark, one of Canada’s top intelligence experts

She did, with the full knowledge and support of her boss, now husband, David Crenna, who said he and Elena were obliged to be transparent with Russian authorities to avoid having the translation project shut down. The pair eventually married in 2012.

Elena Crenna told CBC News in the spring that she never passed along secret information about project she was working on, and did not covertly gather intelligence.

Years later, a FSB defector wrote a tell-all book that alleged a Canadian disarmament program in the 1990s had been penetrated by Russian intelligence.

Without naming either David or Elena Crenna, Sergei Tretyakov claimed Russian intelligence had set a “honey trap” to collect information about the project, referring to the relationship that developed between the Crennas.(In intelligence circles, a honey trap is an operation that uses sex or romantic entanglements to trick or blackmail targets into giving up information.)

Canadian and American intelligence officials, including CSIS and the FBI, interviewed the couple and found their version of events credible.

It was only when Canadian immigration officials were about to allow Elena to stay permanently in the country that border services objected using the information the Crennas had truthfully offered up to the agency in interviews.

It was “Kafkaesque,” said Wark, who believes it is imperative that the agency not be allowed to simply walk away from the case without some kind of introspection and review.

“This is more than just a human tragedy because I think the case reveals a lack of expertise within CBSA, which is troubling given that CBSA is responsible for border security risk management, and responsible for administration of the Immigration and Refugee Protection Act,” he said. “I think it reveals some considerable dysfunction among the elements of the Canadian government.”

Wark said it demonstrates “a very significant lack of understanding about the nature of espionage threats” and complete “lack of understanding of the historical context that they were looking at in this particular case.”The threats in today’s world are too serious and complex for border services to make mistakes of this kind in the future, he said.

Wark is calling on Public Safety Minister Bill Blair to institute a review of how the case was handled. Failing that, he is recommending that the National Security Intelligence Review Agency or even the National Security and Intelligence Committee of Parliamentarians look at what happened.

Canada Border Services has routinely declined comment on the case, citing privacy.

For his part, David Crenna doesn’t want to see all of the agency turned upside down — just the war crimes unit that initiated the case against his wife.

The federal government must ensure that section of the agency is “equipped and trained and capable of doing the kind of national security job” that is expected of it, he said.

Federal officials fell for allegations ‘hook, line and sinker’

To watch federal officials “swallow hook, line and sinker” the narrative of a Russian defector trained in disinformation was disheartening and somewhat frightening, he said.

“Essentially, we thought this being Canada that if we told the truth and co-operated, they would eventually come to the conclusion that we were telling the truth,” said David Crenna, who must now go through all of the federal paperwork for his wife to be readmitted to Canada.

She has been stuck in the U.S. during the coronavirus pandemic where she had been awaiting the results of the court case.

There is no indication when Elena Crenna will be allowed to return.

Source: https://www.cbc.ca/news/politics/russian-spy-case-1.5678875

Canadian court correctly finds the U.S. is unsafe for refugees

Sean Rehaag and Sharry Aiken on the court decision. To date, haven’t seen any media commentary from those more to the right on the court decision and the CPC Immigration Critic Peter Kent has also been silent. Sharp contrast to all the earlier commentary and criticism:

This week, Canada’s Federal Court ruled that the Canada-U.S. Safe Third Country Agreement (STCA) is unconstitutional.

Under the agreement, refugee claimants entering Canada at land ports-of-entry can be returned directly to the United States without being allowed to make a refugee claim in Canada. The agreement was a quid pro quo for concessions offered to the U.S. after 9/11, including a “smart border” accord, enhanced information-sharing and joint border enforcement.

Advocates for refugees have long argued that the STCA violates international refugee law and Canadian constitutional law. Differences between the refugee determination systems in Canada and the U.S., as well as differences in the rights enjoyed by refugee claimants in both countries, mean that some people who would be recognized as refugees in Canada would be denied protection south of the border.

In other words, the U.S. is not “safe” for at least some refugees.

Trump’s election worsened situation

These arguments took on an especially urgent tone after Donald Trump’s election as American president in November 2016.

The Trump administration has implemented many racist, xenophobic and anti-refugee policies to dissuade people from seeking asylum in the U.S. For example: Harsh detention practices (including detention of young children), family separation, restrictions on the refugee definition (such as excluding people facing gender-based violence), militarization of the border and of course attempting to build a wall along the U.S.-Mexico border.

This prompted a growing chorus of voices — from law professors to human rights organizations and political parties — to call on Canada to suspend or withdraw from the STCA.

Their arguments are persuasive. How can a country be considered safe for refugees if it locks up refugee kids in cages or refuses refugee protection to women facing gender-based violence?

Closing the loophole

Unfortunately, these voices have been ignored. Instead, worried about critiques from the right about weakness on border control, the federal government under Prime Minister Justin Trudeau contemplated trying to get the U.S. to extend the agreement to the entire border — not just official land ports of entry.

The U.S., however, has little incentive to expand the agreement, which would block even more asylum-seekers from leaving the United States for Canada, and there has been little movement on this front.

This inaction left the matter to the courts. Lawyers for refugee and human rights organizations, as well as refugee claimants, went to Federal Court, arguing that the STCA is unconstitutional.

Federal Court Justice Ann Marie McDonald agreed with them.

Her decision focused narrowly on what happens to refugee claimants who are turned away under the STCA.

And what happens is atrocious. Refugee claimants are handed over to American officials who detain them for weeks. Conditions of detention are inhumane. Solitary confinement is common. Access to lawyers is restricted, which makes it harder to secure refugee protection.

Worse still, these are intentional policies aimed at making the experience of seeking asylum in the U.S. so traumatic that others will be discouraged from making the same journey.

As Justice McDonald held:

“The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty …. penalization of the simple act of making a refugee claim is not in keeping with the spirit or the intention of the STCA or the foundational conventions upon which it was built.”

No safety for refugees

In other words, U.S. immigration detention practices violate international refugee law and undermine the basic premise of the STCA that both countries are safe for refugees.

So there we have it. A Canadian court has determined that American detention practices are “grossly disproportionate” and “shock the conscience,” and that Canada cannot be complicit by sending refugee claimants to the U.S. to face these practices without violating constitutional rights to life, liberty and security of the person.

The question now is what comes next.

The Federal Court suspended its declaration of constitutional invalidity for six months to allow Canadian Parliament to respond.

The government could appeal the decision. If that happens, the STCA will be tangled up in the courts for years — during which time more asylum-seekers like Nedira Mustefa, one of the applicants in the case, will find themselves in solitary confinement in U.S. detention centres. Mustefa told the court she felt “scared, alone and confused,” with no sense of when she would be released, during her time in American detention.

Alternatively, the Canadian government can send a clear signal that it cares about constitutional and international law, heed Justice McDonald’s findings and take steps to immediately suspend the STCA.

The detention practices that she focuses on in her decision are only one among many ways in which the U.S. has attacked refugee rights. These attacks are mounting. The Trump administration recently proposed reforms that would gut what remains of the American asylum system. Every day that the STCA remains in effect, Canada continues to be complicit in these attacks.

Enough is enough. The STCA must be suspended.

Source: Canadian court correctly finds the U.S. is unsafe for refugees

Coyne: If the United States was ever a ‘Safe Third Country,’ it is no longer

Likely the best commentary to date on the Federal Court decision.

Will be interesting to see the commentaries and reactions by those who have roundly criticized the STCA loophole, the Roxham Road asylum seekers and the government’s handling over the next few days:

One of the things on which Canadians like to congratulate themselves is our generous treatment of refugees. And it’s true, up to a point. The protections afforded asylum applicants in Canada not only meet the standards set by the 1951 United Nations Convention Relating to the Status of Refugees, but also exceed them.

Certainly if you compare Canadian refugee policy with that of the United States, it looks considerably more liberal. But here’s the thing: For particular types of refugee claimants, Canadian refugee policy is U.S. policy. For the better part of two decades, since the 2004 Safe Third Country Agreement between the two countries went into effect, asylum seekers arriving at land-based ports of entry on the border have been routinely turned back, without a hearing.

The premise: As each country deems the other to be “safe” in terms of its treatment of refugees (defined, under the UN convention, as those with a “well-founded fear of persecution” in their country of origin), so asylum seekers may be obliged to apply in whichever of the two they first arrive in. In practice, this means the U.S. agrees to take back those applicants Canada refuses to admit; the flow is almost never in the other direction.

That, indeed, was the point. The agreement was struck at Canada’s request in the aftermath of the Sept. 11, 2001, attacks, when it was feared a flood of applicants, fleeing north from the suddenly less hospitable U.S., would overwhelm the Canadian refugee system. It was vintage Canadian hypocrisy: We would preserve our more generous system by offloading much of its work onto their less generous system.

Well, now our bluff has been called. A Federal Court judge has ruled the legislation implementing the treaty is a violation of the Charter of Rights and Freedoms, specifically its guarantees of the right to “life, liberty and security of the person.” The unspoken premise of the agreement, that the Americans’ treatment of refugee claimants may be a little rough and ready, but not so bad as to be intolerable – at least to those not forced to endure it – has been held up to the light of actual experience, and found bogus.

The histories of those who brought the case make harrowing reading: a woman from El Salvador who was raped by gang members, who threatened to kill her and her daughters if she went to the police; a Muslim woman from Ethiopia, a member of its Oromo minority, who had come to the United States as a child but now faced deportation; a family from Syria, also Muslims, fleeing that country’s civil war, only to find themselves in the America of President Donald Trump’s “Muslim ban.”

Yet in all three cases, Canadian border authorities were prepared to hand them back to their U.S. counterparts. Two of the three were spared this fate only because they were able to find a lawyer in time to file emergency stays of removal. The experience of the third, Ethiopian national Nedira Mustefa, is instructive. She was thrown in prison, held in solitary confinement for a week, and detained for a month in appalling conditions: without proper food, in freezing cold, in the same cells as criminals. She told the court she “did not know when [she] would be released, if at all.”

This is not unusual. Evidence before the court showed that those turned back at the border are “immediately and automatically imprisoned” by U.S. authorities, for weeks or even months – as an explicit penalty for having applied for refugee status. They may often find themselves without lawyers, without translators, even without access to a phone. And awaiting them at the end of their ordeal is the very real prospect of deportation, with far fewer legal safeguards than the Canadian refugee determination system provides.

There is no use pretending Canada is not responsible for their treatment, though government lawyers tried. In many cases, they are physically handed over to the Americans by the Canadian authorities whose protection they had sought. Yet there can be little doubt what awaits them on the other side, and little doubt that Canadian authorities know it. It is not the right to live in Canada they are thereby denied. It is the right not to be arbitrarily detained, or to be deported to face death or persecution in their countries of origin. It is, at the very least, the right to have their cases heard fairly, which one part of our laws loudly proclaims while another quietly denies.

As a practical matter, the Safe Third Country Agreement was already imploding under the weight of its many loopholes and anomalies: Applicants who arrived “irregularly,” between ports of entry, were not turned back, even as those who entered by the normal channels were. But now its very premise has been exposed as a lie. Whatever case there may have been for designating the United States as a safe third country while George W. Bush or Barack Obama were president, it no longer exists. Outsourcing Canadian refugee policy was always a morally dicey proposition. In present circumstances, it is untenable.

That isn’t to say that the concerns that gave rise to it are entirely unfounded. The differences between U.S. and Canadian refugee policies are bound to encourage claimants to head from one to the other. Once it is known that Canadian authorities no longer have the legal power to reject their claims out of hand, they may arrive in numbers that our offices are not equipped to handle. But the alternative can no longer be just to turn them back and hope for the best – even assuming we could. Not if we wish to live up to our own lofty ideals.

This was a decision of the Federal Court, not the Supreme Court. The judge has suspended its application by six months. The government may appeal. Or it can use the time to try to come up with a solution. Six months from now there may well be a new administration in Washington. Perhaps it may adopt a less draconian position toward refugee claimants. Perhaps the agreement might even be renegotiated, in a way that gave claimants more incentive to work within the system, because they were less fearful of the result.

But whatever happens, there can be no more pretense. The United States is not a safe third country, and we know it. We have no blind eye left to turn.

Source: If the United States was ever a ‘Safe Third Country,’ it is no longer

Also, a good history and analysis by Richard Warnica:

Lise Thibault slept in the front room, with the window open, so the winter air could slip in and keep her cool. And as she slept, she dreamed. In the distance, outside the field of her sleeping sight, a baby cried. It wasn’t her baby. She knew that, even in her dreams. She was 80 years old then. Her children were grown. They had grown children of their own.

On the baby cried, and Thibault stirred, but she didn’t wake. It was the kind of cry you hear through walls — thin and high and hiccupping. The kind of cry that perks a parent’s ears, no matter how old their children are — the kind of cry you wouldn’t normally hear on a wide, wooded lot in the Quebec countryside, just over the border from Roxham Road.

Thibault opened her eyes and her dream cut short. But the crying didn’t end. It was the middle of the night in late February. Her nearest neighbours were out of earshot. But still the cries carried on. So Thibault rose from her bed. She walked to the window. She looked out into the dark road.

It was late February 2017. Donald Trump had just become president and Justin Trudeau had just told the world, via Twitter, that Canada still welcomed the persecuted and afraid. On Chemin Roxham, where Thibault has lived with her husband since 1968, the border seemed to be fading away. People were walking across — in ones and twos and 10s. They came in families and alone. They walked up a dead-end road in nowhere New York. They crossed a deep ditch and entered Canada, where for a time they became the biggest political story in the country — a lightning rod for debates over border control, loopholes, populism, racism and who is and isn’t a legitimate refugee.

Standing in the snow that night, beneath the amber streetlight, dressed for a different, much warmer world, Thibault saw a young woman holding a baby. A second child, a toddler, stood by her side. “She was so obviously cold,” Thibault said, “and so were the children.” Soon a border control official drove by. He phoned the police, and an officer followed. The mother tried to give him some money, Thibault said, but he refused. Instead, he put the children in the car. “Don’t cry,” he told them. And he drove them all away.

On Wednesday, a federal court judge in Toronto declared that the Safe Third Country Agreement, the border pact that made Roxham Road a thing, violates the Canadian Charter of Rights and Freedoms. The ruling validated decades of arguments made by refugee groups, lawyers and advocates for the displaced and stateless. At the most basic level, it also affirmed what activists on both sides of the border have been saying for almost four years, that the United States, under Donald Trump, is not a safe place for asylum seekers and refugees.

As is often the case with legal rulings of sweeping effect, Wednesday’s judgement actually turned on something quite human and narrow. The case was brought by a coalition of advocacy groups, including the Canadian Council for Refugees and Amnesty International, on behalf of several test plaintiffs. Among those was Nedira Jemal Mustefa, an Ethiopian woman who had lived in the United States since she was 11 years old.

In April 2017, Mustefa tried to cross the border at Saint-Bernard-de-Lacolle, a few kilometres from Roxham Road. After she told border guards she intended to apply for asylum, she was questioned for 30 hours, denied entry then delivered back into the hands of U.S. authorities. She spent the next 30 days in a maximum-security prison in upstate New York sometimes known as “Little Siberia” for its freezing conditions.

For the first seven days in Little Siberia, Mustefa was locked in solitary confinement, an experience she described as “terrifying, isolating and psychologically traumatic.” It was that experience that Federal Court Justice Ann Marie McDonald leaned on in her ruling. The Canadian officials, she wrote, had handed Mustefa over to the U.S. knowing she would be imprisoned, knowing, in other words, that she would be deprived of her fundamental rights under Canadian law.

“The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty,” she wrote. “The penalization of the simple act of making a refugee claim is not in keeping with the spirit or the intention of the (Safe Third Country Agreement) or the foundational Conventions upon which it was built. … For these reasons, I conclude that the Applicants have established a breach of section 7 of the Charter.”

Ironically, had Mustefa tried to cross the Canadian border a few kilometres away, at Roxham Rd., she would have been allowed in, permitted to make her claim and never would have become a test case. That’s what has long driven critics of the Safe Third Country Agreement, on the left and the right, mad.

The deal, hatched in the aftermath of September 11, 2001, was both incredibly broad and extremely porous. With few exceptions, it meant that anyone crossing into Canada from the U.S., by land, was prevented from making a refugee claim. It worked the other way too. The idea was that both Canada and the U.S. were supposed to be safe, and that would-be refugees should be making their claims in whichever “safe” country they arrived in first.

But it never totally worked that way. Critics on the left argued that the United States was not, in fact, safe. Critics on the right, meanwhile, hammered on the fact that the deal only ever applied at official border crossings. For a long time, those arguments weren’t academic. But they weren’t totally mainstream, either. People crossed irregularly. But never in great numbers. When Donald Trump was elected, the levees broke and the floods began.

Beginning almost immediately after Trump’s election, people starting walking over the border in serious numbers. They crossed in the winter, at great peril, into Manitoba and Saskatchewan. They crossed outside Vancouver and near Niagara Falls. But most of them, tens of thousands of them, crossed at Roxham Road, a dead-end street in upstate New York that ended in a tiny ditch in the Canadian woods.

So many of them crossed, so regularly, that Canadian officials eventually filled in a path over the creek so asylum seekers could roll their luggage across. They hauled in trailers and port-o-potties and built a semi-permanent reception centre on the other side of the border. Mounties would stand and sternly warn asylum seekers they’d be arrested if they crossed, then, once they crossed, help them with their bags.

It was a strange and contradictory thing to witness. And it represented, with each crossing, the strange and contradictory nature of asylum policy under Justin Trudeau. He wanted Canada to look welcoming. It was good for the brand. But he didn’t love dealing with what it meant to welcome so many, so fast.

For months, Roxham Road was the biggest story in Canada. It carried on as a political lightning rod for more than a year. And then, the issue just faded away. The traffic at the border never really stopped. People kept on crossing. But Canadians and Canadian politicians mostly stopped talking about it. The Liberals didn’t love getting painted as soft on border security. The Conservatives weren’t fond of getting lumped in with the angry, anti-outsider right. In any case, when the election came last year, Safe Third Country, asylum seekers, and Roxham Road barely made a ripple.

All the while, in the background, lawyers kept working away at the case that ended Wednesday. And that case means that now, whether they like it or not, the Liberals have to deal with the issues underlying Roxham Road. It is patently clear that the United States under Donald Trump is not a safe country for asylum seekers. Indeed, the Trump administration doesn’t want it to be. That’s their border plan: Make things so inhospitable in the U.S. that asylum seekers never even bother to try. That the Liberal government went to court to argue otherwise was absurd. That they lost was something of a surprise.

What happens next though, isn’t clear. Justice McDonald gave the government a six-month grace period before her ruling comes into effect. In six months, the world could be a different place. Joe Biden could be the U.S. president. The conditions for asylum seekers in the U.S. could be different than they are today. The government could amend the law, appeal the ruling or find another way to punt the issue down the road. Until then, in theory, asylum seekers could still get turned away at a border crossing and welcomed at a border ditch. A system that never totally made sense, one that is now officially, legally, in violation of the Charter, could remain in place.

Whatever comes next, the government should be careful. This country has an obligation to treat people who come here, by any route, as human beings. That obligation doesn’t go away just because our closest neighbour has decided it doesn’t apply to them anymore.

Source: Canadian federal court ruling could mean the end of Roxham Road border crossings

‘Canada cannot turn a blind eye’: Federal court says Safe Third Country Agreement with U.S. violates charter

The big news this week, with the question will the government accept or appeal this decision given that defending the STCA with the Trump administration would be different under a possible Biden administration:

In a ruling that lambastes the American government’s detention of asylum-seekers and chastises Canadian officials as complicit, this country’s Federal Court has ruled the so-called Safe Third Country Agreement is unconstitutional.

The ruling is being hailed as a major victory for refugee rights — and drawing calls from advocates for Ottawa to immediately and unilaterally suspend the agreement with the United States.

“Security of the person encompasses freedom from the threat of physical punishment or suffering,” Justice Ann Marie McDonald wrote in her 62-page decision, which was released Wednesday.

“The accounts of the detainees (in the U.S.) demonstrate both physical and psychological suffering because of detention, and a real risk that they will not be able to assert asylum claims.”

Under the bilateral pact, Canada and the U.S. each recognize the other country as a safe place to seek protection.

That means Canada can turn back potential refugees who arrive at land ports of entry along the Canada-U.S. border on the basis they should pursue their claims in the States, the country where they first arrived.

The agreement, which took effect in 2004, was originally touted by officials in both countries as a way to curb “asylum shopping.” However, critics have long argued that the U.S. asylum system is cruel and inhumane — critiques that have grown louder and more pronounced during the Trump administration.

In its judgment, the court found it unconstitutional to ban would-be claimants from attempting to enter either country at official border crossings. The court gave Ottawa six months to respond and fix the policy to make sure it complies with the Canadian charter before declaring the accord invalid.

“The evidence demonstrates that the immediate consequence to ineligible STCA claimants is that they will be imprisoned solely for having attempted to make a refugee claim in Canada,” McDonald said. “The ‘sharing of responsibility’ objective of the STCA should entail some guarantee of access to a fair refugee process.”

Refugee advocates urged the Liberal government to move quickly to suspend the agreement, which the terms allow.

“Refugee claimants turned away at the Canada-U.S. border face grave human rights violations in the United States, notably atrocious conditions in immigration detention,” said Alex Neve, Secretary General of Amnesty International Canada, one of the parties.

“Under no circumstances should the government consider appealing this ruling. It is time to stop pretending that all is right when it comes to protecting the rights of refugees in the U.S. Not one more refugee claimant should be turned away at the Canada-U.S. border.”

Mary-Liz Power, spokesperson for Public Safety Minister Bill Blair, would not say whether the government planned to appeal the court decision.

“We are aware of the Federal Court’s decision and are currently reviewing it. Although the Federal Court has made its ruling, that decision does not come in effect until January 22, 2021. The Safe Third Country Agreement remains in effect,” Power said in an email.

U.S. President Donald Trump’s anti-migrant policies have spurred an influx of so-called irregular migrants skirting asylum restrictions by crossing outside of Canada’s official ports of entry, where restrictions have applied.

More than 50,000 asylum seekers have come here that way via the U.S. over the past two years. Once here, after passing initial medical and security screenings, refugees can work and access health-care pending a decision on their asylum claims.

“When the Trump administration attempted to impose their travel ban in January 2017, it was obvious that the Liberal government could no longer count on the United States to live up to its international and humanitarian obligations,” said NDP immigration critic Jenny Kwan.

“Contrary to what Minister Blair has said in the past, this (ruling) proves that refugees are not simply ‘asylum shopping.’”

After Trump’s election in November 2016 with an anti-immigration agenda, Canadian and U.S. non-governmental organizations and refugee lawyers started their effort to challenge the legality of the asylum restrictions.

In 2017, they connected with a Salvadoran woman in the U.S. who sought asylum after she was raped and threatened by the notorious Mara Salvatrucha gang in El Salvador, and agreed to be the lead litigant. The other litigants included a Syrian family of four and a young Ethiopian woman, all of whom were denied access to asylum in Canada. The three Canadian rights groups, including the Canadian Council for Refugees and the Canadian Council of Churches, also enlisted nine other witnesses

During the hearing in November, the court reviewed evidence that showed detainees in the U.S. had no access to phone calls and legal counsel or translators; have been lost due to transfers between detention centres; and sometimes were held in solitary confinement.

“The court could hardly fail to be moved by the testimonies of the appalling experiences of people in the U.S. immigration detention system, after Canada closed the doors on them,” said Dorota Blumczynska, president of the Canadian Council for Refugees.

“Their experiences show us and convinced the court that the U.S. cannot be considered a safe country for refugees.”

The court decision also called out Canadian officials’ responsibility.

“Canada cannot turn a blind eye to the consequences … in its efforts to adhere to the STCA. The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty,” Justice McDonald wrote.

Queen’s University immigration law professor Sharry Aiken said it’s “reasonable” to expect an influx of refugee claimants at official ports of entry from south of border in light of the ruling, though it may not happen immediately due to the COVID-19 border restrictions.

“The court ruling itself does not address the current (pandemic) context but the implications of the ruling signal that Canada should step up immediately to protect the rights of claimants approaching Canada for asylum,” Aiken said.

“Canada has proven itself more than capable of adequately addressing spikes in the numbers of asylum seekers. Constitutional rights are not about the numbers, in any event.”

Source: https://www.thestar.com/news/canada/2020/07/22/canadian-court-says-safe-third-country-agreement-with-us-violates-charter.html