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

Thousands of international students cited in government report for breaking rules

Yet more details on fraud among international students. Good and needed investigative reporting:

Canada issued Anass El Kamel a student visa to study at the Université de Moncton, but the Moroccan man never attended a single class or even lived in New Brunswick.

Instead, upon arriving in Canada in 2017, he settled in Montreal and got a job with a parking management company, claiming illness prevented him from starting school. Immigration officials tracked him down and ordered him to leave Canada a year later for failing to “actively” study as his visa required.

A Federal Court decision against El Kamel stated, “The (education) program he was to complete in Canada was not of great concern to him. He simply wanted to quickly complete a program so that he could then apply for permanent residence in Canada.”

El Kamel is clearly not the only international student with that intent. For the first time, an internal 2018 government report reveals data on the possible misuse of student visas to gain access to Canada.

According to the report from Immigration, Refugees and Citizenship Canada, obtained under an access to information request, roughly 10 per cent of international students enrolled in post-secondary institutions are “potentially” not complying with the conditions of their study permits for anything from academic suspensions to no-shows. But the number of students breaking the rules is likely higher because schools fail to report the enrolment status of up to 20 per cent of international students.

Price of Admission, an ongoing joint investigation by the Toronto Star and the St. Catharines Standard this fall, looked at the exponential growth of international students, particularly in the Ontario college system, and its impacts on Canada’s immigration and education systems. Reporting found evidence of students using their study permits as a pathway for jobs and permanent residence in Canada.

“The volume of non-compliance should not really be a surprise to anyone. Most international students at the community college level are edu-immigration clients. If they can avoid school and gain immigration status through work opportunities, that’s what all of them would do,” said Earl Blaney a London, Ont., immigration consultant who doubles as an education agent in the Philippines. “Having a study permit offers direct access to employers for this purpose.”

Canada’s immigration department does not have dedicated funding to monitor and investigate if international students are following immigration rules. The detection of “non-genuine students” largely relies on an honour system through reporting by the hundreds of learning institutions designated by each province.

School administrators have been required to report on international student enrolment status since 2016. This followed an explosion of international student enrolment in Canada after 2014, when immigration policy changes made it easier for students who study at publicly funded institutions to work and apply for permanent residency. There are more than 572,000 international students across Canada, a 73 per cent hike over the past five years.

The partially redacted internal government report obtained by the Star found that 90 per cent — or 587 of the 655 schools — submitted data on enrolment.

School administrators, in the spring of 2018, identified 9 per cent, or 28,049 of the 316,531 study permit holders, as being “potentially non-compliant.” They failed to report the enrolment status of 16 per cent, or 51,051 of the international students.

The report said that since 2018, officials have also been checking school acceptance letters international students use to apply for study permits. So far, 10,400 acceptance letters have been referred for verification; 12 per cent, or 1,240 cases, were identified as fraudulent.

Colleges and Institutes Canada, the largest national post-secondary advocacy group in the country, said it is challenging to track international students after arrival.

“The integrity of the international student program is very important. It’s a top priority for us and our members to ensure all students access to quality education in Canada. Nobody benefits from students not showing up in class,” said Denise Amyot, CEO and president of the group, which represents 135 schools across Canada.

An international student who switches to a different school from the one they originally planned to attend can be wrongly deemed non-compliant if the student doesn’t update their immigration records.

“Sometimes people have valid reasons to be non-compliant with the conditions in their study permits. Maybe they have to go home for a family emergency,” explained Amyot.

What further complicates the reporting process is that the immigration department had not clearly defined what “actively” pursuing an academic program really meant until earlier this year when updated guidelines were published, detailing expectations as well as evidence required for proof of enrolment, said Blaney, the immigration consultant.

“Students had no idea what ‘actively pursue’ meant or what the consequences were until these program delivery instructions occurred six years after the compliance regime was put in place,” he noted.

A recent federal court decision pointed to these criteria when approving a decision by immigration officials to kick out international student, Kaur Gursimran, who came to Canada from India in 2016 to study business at Simon Fraser University. She later transferred to Kwantlen Polytechnic University in Surrey, B.C., then to Canadian College, in Vancouver.

“She changed schools and programs, moving from business programs into a general arts and science program in spite of her permit specifying that she is to study business or commerce. Additionally, she took off two semesters in three years, and failed more courses than she has passed,” said Justice Ann Marie McDonald in the October decision.

In her defence, Kaur argued she had a car accident and as a result did not attend the minimum number of classes and withdrew from a semester at Canadian College — though she was unable to produce an accident report or a witness statement.

The court concluded “Kaur’s absences alone are sufficient to demonstrate that she did not comply with the … requirement that she actively pursue her studies.”

While the internal government report offers a rare glimpse of the extent of potential violations by international students, the numbers don’t explain the reasons behind the rule-breaking, said Amira El Masri, an expert on international education policies at York University.

“I would love to know more about those non-compliant cases. Where do they come from? Which institutions? Is it colleges? Is it universities? Is it private (institutions)? Is it public? This would shed some lights and would steer policies one way or another,” said El Masri.

“We have a huge body of international students. They contribute a lot to our teaching and learning in the classroom. There are a few non-compliant cases. When we introduce any new policy, we need to make sure we don’t complicate life for everybody in the process.”

In 2018, immigration officials randomly selected 1,050 of the non-compliant cases reported by schools across Canada for further investigation, but the outcomes were redacted in the report obtained by the Star.

It’s up to the provinces to accredit schools to accept international students and the schools must in turn meet standards and monitor student enrolment. In Ontario, the list of recognized schools has grown from 298 in 2014 to 420 in 2019.

The provinces are also responsible for the enforcement of labour laws, which also cover international students whose study permits allow them to work off-campus for up to 20 hours a week and stay on postgraduate work permits that are good for one to three years.

The issue of international students breaching employment restrictions was raised by immigration officials in a 2015 report that found many of them enrolled in Canadian schools because of the easy access to jobs. Many end up in low-skilled work.

“Some educational institutions in Canada offer low-quality education programs with minimal entry requirements and adjust their programs to allow international students to maximize the duration of their postgraduate work permit,” said the report.

“The current program design … increases the motivation to create low-quality education programs facilitating long-term work opportunities.”

Being caught for breaking rules has dire consequences with students losing their permits and being deported.

In 2018, 5,502 study permits were revoked, up from 1,538 in 2016. In the first two months of 2019 alone, 1,048 study permits were cancelled. The Canada Border Services Agency was unable to provide the number of international students deported from Canada.

Indian international student Jobandeep Singh Sandhu, 22, paid a high price for breaking the rules. The Canadore College student worked as a long-haul truck driver and was stopped by Ontario Provincial Police for a routine inspection near Cornwall in 2017. His driver log book revealed he had worked more hours than permitted under his student permit. He was turned over to federal authorities and deported this summer.

Rahul Choudaha, an international education consultant and researcher based in Colorado, said Canada is behind the United States, Australia and the United Kingdom in implementing policies to track international students.

In the U.S., for example, the eligibility for a postgraduate work permit is tied to employment in the field of study of an international student, who can only work off-campus during school breaks.

However, he said Canada already has a “rigorous” study permit application process to screen out ineligible students at the front end — through school admissions and scrutiny by overseas visa officers.

“The goal of these mechanisms is to ensure the integrity of the system, but it is also important for Canada to attract and retain these international students,” said Choudaha. “There are always those who try to game the system, but you don’t want the 90 per cent of genuine students being affected.”

Source: Thousands of international students cited in government report for breaking rules

Asylum seekers turned away by Canada at the border will get the chance to explain why they feel U.S. is unsafe for refugees

A case to watch given its implications for both asylum seekers and the government:

She knocked on Canada’s door and begged for protection. Instead, she was turned away, handcuffed and jailed — and no one even cared to ask her why she fled her native Burundi.

Then, in a cold cell at Clinton Correctional Facility in upstate New York, she was handed a flimsy prison jumpsuit and put in solitary confinement while waiting for the results of a mandatory TB test. Behind two panes of glass, she ate, slept and used the toilet in plain sight of the guards and anyone walking by. She was held for 51 days.

More than four years after the “horrific” detention experience she said still haunts her, this asylum seeker and others like her who were turned away by Canada at the Canada-U.S. border will finally have their day in court to explain why they feel the United States is not a safe country for refugees.

Starting Monday in Toronto, the Federal Court of Canada will hear a constitutional challenge to the Canada-U.S. Safe Third Country Agreement, under which both countries consider themselves a safe haven for refugees and agree to block would-be claimants from attempting to enter either country at official border crossings. Arguments will be heard over five days before Justice Ann Marie McDonald.

The Burundian woman, who cannot be named but spoke to the Toronto Star, will be one of the witnesses.

“I preferred death in my country than this treatment like a criminal in the U.S. If I were to die, I should die at home,” she said.

The bilateral pact, implemented in 2004, was originally touted by both Canadian and U.S. officials as a way to curb “asylum shopping.” However, critics have long argued that the U.S. asylum system is cruel and inhumane, especially now under President Donald Trump.

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 apply. 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.

In 2007, three advocacy groups — the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches — took Ottawa to federal court and successfully had the U.S. declared unsafe for refugees, but the decision was later overturned on appeal, largely on the grounds that the groups failed to find a lead individual litigant who was directly impacted by the policy.

After Trump’s election in November 2016 with an anti-immigration agenda, Canadian and American non-governmental organizations and refugee lawyers renewed 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 include 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 also enlisted nine other witnesses, including the Burundian woman, to provide evidence in support of the litigants’ arguments.

“This litigation is significant because this is a way for us to collectively take a position on the human rights abuses and violations against refugees and migrants in North America,” said Janet Dench of the Canadian Council for Refugees.

“Canadians are horrified by what’s been happening in the U.S., with (migrant) children separated from their families, refugees turned away at the Mexico border, the Muslim travel ban and all these measures in the U.S. The litigation is a way of standing up against these policies we don’t and can’t approve of.”

The litigants are expected to present evidence of human rights violations and Canadian Charter breaches in U.S. detention and asylum practices, and highlight the impact of the Safe Third Country Agreement on the most vulnerable refugees fleeing gender-based persecution and gang violence, who are singled out by the Trump administration to be excluded from the U.S. refugee definition.

“Refugee claimants that Canada turns away at our borders are exposed to grave risks of detention and mistreatment in the U.S.,” the litigants claim in their court submissions. “Refugee claimants are being detained indefinitely, in conditions that are nothing short of cruel and unusual, simply for seeking protection.”

In response to the claim, the Canadian government said the Canada-U.S. agreement is no different from similar deals in other refugee-receiving countries in response to rising global migration and forced displacement. Ottawa conducts regular reviews of the pact in order to ensure fair access to asylum, it said in a written response to the litigants’ claims.

“Claimants are returned to a highly developed asylum system that grants protection to large numbers of persons every year, and is subject to both administrative and judicial checks and balances,” it argued. “The U.S.A. complied with its international refugee protection and human rights obligations, notwithstanding debate both in the U.S.A. and internationally with respect to certain aspects of American policies and practices.”

However, the Burundian witness, who is only identified as “Morgan” because her identity is protected by the court, told the Star in an interview her experience in the U.S. tells a different story.

“With their accents, and English not being my first language, I had tremendous difficulty understanding them. They were treating me like I was trying to commit a crime,” recalled Morgan, 28, who said she had been threatened by government militia in Burundi after she and the civilian group she belonged to reported voter registration fraud in the 2015 election. Her cousin, also a member of the group, was shot and killed, she said.

“(American officials) were accusing me of fraud because my visa was for students. But I never intended to lie. All I wanted to do was leave a country where I could die any time,” added Morgan, who said getting a student visa was the only way she could get to the U.S. as a pathway to Canada.

Morgan, who has a degree in business administration back home, said she wanted to flee to French-speaking Canada, but since Ottawa does not have a visa post in Burundi she went to the U.S. consulate instead. She arrived in Pittsburgh in May 2015, before taking an overnight bus to Plattsburgh, N.Y., and from there to the official Canadian border post at Lacolle, Que.

She said she did not know about the asylum restrictions and was denied entry to Canada and detained in the U.S.

In addition to the lack of privacy in detention, Morgan said U.S. officials were “aggressive and rude” and did not help her fill out forms. She said with the one call she was allowed from jail she contacted a friend of a friend in the U.S., who found her a lawyer.

After 51 days behind bars, including 10 days in solitary confinement, she was released and had to couch-surf at the homes of people she barely knew while waiting for an asylum hearing to be scheduled. She said she was unable to support herself because immigration officials held her ID and she couldn’t get a work permit.

More than a year later, Trump won the U.S. presidential election, leaving Morgan to wonder if she would ever get asylum south of the border. When she learned people were bypassing the asylum restrictions at Canadian border crossings, she followed in the footsteps of those “irregular migrants” by crossing at Roxham Rd. in Quebec in August 2017.

However, she is still deemed inadmissible and ineligible to seek asylum in Canada because she had already been denied entry once — in 2015. Meanwhile, Canada cannot deport her to Burundi because of the current humanitarian crisis there.

“I am a victim who needs protection. It doesn’t make sense to call the U.S. a safe country,” she said. “I see how bad the consequences of this agreement are. I still can’t apply for refugee status in Canada because of this. This has to stop.”

Source: Asylum seekers turned away by Canada at the border will get the chance to explain why they feel U.S. is unsafe for refugees

Liberals end ‘unfair’ policy that penalized refugees from so-called ‘safe countries’

Not much left of these measures between court decisions and Liberal policy changes, will see what Andrew Scheer says in his forthcoming policy speech on immigration:

The Liberal government has killed a controversial Harper-era initiative that did not afford all refugees the same rights and instead penalized those who came from so-called “safe countries” like the United States.

Starting immediately, Canada will remove the tight timeframe for their claims to be heard and let them appeal possible rejections, as well as grant them the right to work immediately and receive health care — benefits previously bestowed only on asylum seekers fleeing from war-torn countries and corrupt regimes.

“The system is unfair and treats people differently based on nationality,” Immigration Minister Ahmed Hussen told the Star in a phone interview Thursday. “The policy hasn’t worked. It was meant to introduce efficiency, but it has created the opposite effects. It’s time to go.”

The move by Ottawa follows several Federal Court decisions over the years that have chipped away at the core provisions of the so-called “safe country” policy introduced in 2012 by Stephen Harper’s Conservative government to target rising asylum claims from Eastern Europe and Mexico. The government established a list of safe countries and created a faster processing and removal system for claimants from these nations.

The Liberals’ decision to eliminate the safe country list, to be made public Friday, officially strikes down the last remaining planks of their predecessor’s controversial revamp of the refugee asylum system.

The original reforms aimed to deter “bogus claimants” whose lives weren’t in danger, but who came to Canada for economic opportunities. However, the changes failed to stem the flow of migrants and the Conservatives did not invest the necessary resources to manage the new system.

Refugee claims from these countries were not being processed any faster, said Hussen, and added additional burden to the asylum system that was further stretched over the past two years as a result of a surge of claimants crossing into Canada from the U.S.

“We are getting rid of the last piece of the policy that is responsible for creating the legacy backlog,” said Hussen. Under the safe country regimen, refugees from the list were given limited time for claims to be heard, had restricted access to appeals and health coverage, and faced quick deportation — which the court has ruled violated the Charter of Rights and Freedoms.

Critics have long noted that people from so-called safe countries can still face persecution at home due to sexual orientation, ethnicity and religion, and for a variety of reasons their countries can fail to protect them. They also complained the statutory timelines to process safe country claims were unreasonable and created chaos and further backlogs because the previous government did not put in enough resources to let the refugee board do its job.

The safe country list initially included 23 countries and has since been expanded to 42, including the United States, Czech Republic, Hungary and Mexico.

Hussen said improving the efficiency of the asylum system has always been part of his mandate since being appointed immigration minister in 2017. Under his watch, an independent review of the system was completed, an asylum management board was established to oversee the system, the legacy backlog was cleared and additional resources were pumped in to boost the refugee board’s processing capacity.

The removal of the safe country list, however, has no impact on the bilateral Safe Third Country Agreement with the U.S., which bans refugees from third countries coming through the United States and seeking asylum in Canada at the official ports of entry. These so-called irregular migrants can still seek asylum in Canada if they manage to sneak in and meet exemption requirements — and be processed like all refugees.

In 2018, the federal government invested $74 million over two years to hire 64 refugee judges and 185 support staff to handle the ballooning backlog, which reached 74,000 cases as of the end of March. As part of the 2019 federal budget, Ottawa has added more resources to boost the board’s operation to allow it to process up to 50,000 asylum claims and 13,500 appeals a year by 2021.

Immigration officials said only 12 per cent of asylum claims submitted from Jan. 1, 2013 to March 31, 2019 were from citizens of the designated safe countries.

Source: Liberals end ‘unfair’ policy that penalized refugees from so-called ‘safe countries’

Getting refugee decisions appealed in court ‘the luck of the draw,’ study shows

Sean Rehaag continues his important work in revealing inconsistencies in decision-making depending on the federal court judge hearing the application. Virtually all reviews of decision-making processes highlight how perspectives and biases (and Kahneman’s ‘automatic thinking’) can lead to such results:

It is a crapshoot whether refugee claimants can get a second chance from the Federal Court to review and appeal a decision that potentially determines their life and death, according to a new study.

“Outcomes in Federal Court applications for judicial review of refugee determinations depended all too often on the luck of the draw — on which judge decided the case,” said York University law professor Sean Rehaag, author of the report released by the Social Sciences Research Network this month.

“Refugee claimants whose applications for judicial review are denied continue to have good reason to wonder whether this was because of the facts of their case and the law, or whether they simply lost the luck of the draw.”

Both failed refugees and the federal government can appeal a refugee board decision to the court but must first get a nod — or leave — from a judge before the case can proceed to a full hearing. If the first judge denies leave, the appeal will not be heard. Sometimes, the court is the last resort before a failed refugee claimant is deported from Canada to face potential risks back home.

Federal Court Chief Justice Paul Crampton acknowledged Rehaag’s study raises some important questions.

“There is a very real fairness dimension to the wide variation in the rates at which individual judges grant leave,” Crampton told the Star in a statement. “This is so despite the element of subjectivity in making judicial determinations, especially on judicial review, where the standard that the court is called upon to apply in most cases is whether the decision under review was ‘unreasonable.’”

Based on 33,920 Federal Court leave applications involving refugees, the study found only 16.8 per cent of the requests were granted to proceed to an appeal hearing and just 7.8 per cent of them were ultimately successful in getting an asylum decision stayed and having the cases reopened.

The study is the sequel to one conducted by Rehaag in 2012 when he found individual judges varied tremendously in their grant rates for leave and judicial reviews.

Since the release of the first study, Crampton has raised awareness of the issue among judges and even considered amending rules to include a list of factors for judges to weigh in applying the existing leave test, but decided it would be better to include this in legislation.

“Given the important principle that individual judges must decide cases before them on the merits, completely independently of any influence by other persons, the court has continued to wrestle with how to reduce the variation in leave grant rates,” Crampton said.

According to the study, from 2008 to 2011, some judges only allowed 1.5 per cent of the appeal requests they handled to proceed to a full hearing while others approved more than 30 per cent of those requests. One judge, Justice Douglas Campbell, actually granted leave to 95.9 per cent of his cases.

Wide gaps were also identified in the outcomes of the appeals, with some rejecting almost every appeal before them and others reopening 33.8 per cent of the cases and sending them back for a new assessment.

However, despite the court’s effort to address the issue, the gaps among judges’ approval rates persisted after 2012.

From 2013 to 2016, the leave grant rates varied from 5.3 per cent by Justice Judith Snider on the low end to 49.2 per cent by Justice Elizabeth Heneghan on the high end. Appellants, who got leave to proceed to a full hearing, had a 1.8 per cent success rate if they appeared before Justice Richard Boivin but a 22.8 per cent chance to succeed in reopening their cases if they were before Justice Leonard Mandamin.

The report recommends the court allow all appeals a full hearing or at least have two judges to decide on leave to counterbalance any potential bias.

Source: Getting refugee decisions appealed in court ‘the luck of the draw,’ study shows