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FCA to consider constitutional challenge in Kreishan

Safe Third Country Agreement and the right to appeal to the RAD

The Federal Court’s recent decision in Buyu Luemba et al v Canada (MCI) [Luemba] confirms that a decision will be made that could impact a refugee claimant’s right to appeal to the Refugee Appeal Division (RAD) when the Safe Third Country Agreement (STCA) is engaged. 

In Luemba, Grammond J. ordered that the cases before the Court be kept in abeyance pending the judgment of the Federal Court of Appeal of Kreishan v Canada (MCI) [Kreishan]. The Minister unsuccessfully objected, asking the Court to apply the state of the law as currently stands following Kreishan.  However, the Court found that the Luemba applicants would suffer irreparable harm if their cases were not stayed, finding that it was clear that appeals to the RAD permit the correction of several types of errors that would not give rise to judicial review before the Federal Court. In the interests of justice, and in light of the Court’s finding that the Minister would not suffer significant inconvenience, the applications are stayed until the Federal Court of Appeal has decided Kreishan.

Below is a summary of the Kreishan decision and a brief review of the STCA. 

Appeals during the asylum process in Canada 

As it stands, paragraph 110(2)(d) of the Act prohibits any appeal before the RAD of an RPD decision refusing a refugee claim if the individual came to Canada through a country that is designated as being a safe third country under the relevant provisions. Under the STCA, the United States is (currently) designated as a safe third country. As such, persons seeking to travel through the US without seeking protection there are prevented from then seeking protection in Canada, pursuant to paragraph 101(1)(e) of the Act. 

Under section 159.5 of the Immigration and Refugee Protection Regulations (Regulations), an exception to this prohibition is provided such that certain classes of claimants can have their claims heard in Canada by the RPD despite the STCA provisions. However, in exchange for the exception, the right of appeal to the RAD was removed.

As argued by the applicants in Kreishan, the loss of a right to appeal to the RAD has several negative effects, including no statutory stay of removal pending appeal and pending the outcome of a judicial review. However, if a claimant from a designated safe third country is unsuccessful before the RPD, they may still seek judicial review before the Federal Court and a judicial stay of removal. 

The Safe Third Country Agreement

Under the STCA, refugee claimants must seek protection in the first country they have an opportunity to do so, save for certain exceptions as discussed above.

The general objectives of the STCA include to deter abusive and unfounded claims, to expedite the removal of individuals who are not in need of protection, and ultimately protect the integrity of the Canadian refugee system. 

However, many argue the provision implementing the STCA (and the resulting RAD bar) is flawed because it is arbitrary and overbroad. These criticisms were fleshed out in the Kreishan decision discussed below. The Minster stressed the STCA’s primary objective is to prevent forum shopping (e.g., by reducing incentives to claim in Canada to those who had access to protection in another state). Ultimately the Court agreed.

The recent issues surrounding the United States’ treatment of refugees has caused for several advocates and groups, including Amnesty Canada, the Canadian Council for Refugees, and the Canadian Council of Churches, to challenge the designation of the U.S. as a safe third country for refugees. Those arguments merit careful review in a separate post. 

The Kreishan decision

Kreishan concerned a constitutional challenge based on section 7 of the Charter. The applicants argued the unconstitutionality of the current bar limiting access to the RAD for certain classes of asylum seekers entering Canada through the U.S. A key consequence of the RAD bar is that there is no statutory stay of removal; this means that removal orders become enforceable once a negative decision of the RPD is rendered. 

There were several parties to the Kreishan decision. One applicant, Ms. Kreishan, is a Sunni Muslim woman of Jordanian origin. She feared abuse from her father who was pressuring her to divorce her Canadian husband. Before entering Canada, she first travelled to the US but did not seek protection there. Approximately two weeks later, she entered Canada and made her claim. The RPD refused her claim and found that she was neither a Convention refugee pursuant to section 96 nor a person in need of protection pursuant to subsection 97(1) of the Act.

Ms. Kreishan appealed to the RAD, but her appeal was dismissed on jurisdictional grounds pursuant to paragraph 110(2)(d) of the Act (i.e., the RAD bar). Similarly, the RPD refused the other applicants’ claims, and their appeals to the RAD were also dismissed for lack of jurisdiction pursuant to paragraph 110(2)(d).

The principal issue in Kreishan questioned whether paragraph 110(2)(d) violates section 7 of the Charter for depriving the applicants of their rights to life, liberty and security of the person without accordance with the principles of fundamental justice, and if such deprivation exists, whether the breach can be justified under section 1 of the Charter. 

Relying on the Supreme Court’s decision in Canada v Bedford, the applicants argued that if there is a sufficient causal connection between the impugned law and the prejudice suffered, a law engages section 7 if there is an increased risk to life, liberty, or security of the person. Further, the applicants argued that the denial of a RAD appeal increases such risk and that an appeal before the RAD offers benefits that do not exist with judicial review. The denial of a RAD appeal increases the risk of refoulement, and the psychological harm when faced with deportation meets the test for serious state-imposed psychological stress as previously defined by the Supreme Court in Blencoe v BC (HRC). 

The applicants levelled several criticisms of paragraph 110(2)(d). The applicants argued that the STCA is arbitrary since it is not rationally connected to the well-foundedness of a refugee claim. They further argued that there is no evidence to suggest that claimants from the U.S. have less meritorious claims than claimants arriving from other countries. Regarding overbreadth, the claimants argued that the STCA provision applies to a large class of refugees whose claims are not abusive. Finally, the applicants argued that the provision is grossly disproportionate, since a mistake in returning a genuine refugee to his/her country of origin can lead to torture or death. They argued that the Act already contains mechanisms to deal with false claims (e.g., subsection 107(2) and section 107.1)

In response, the Minister argued that even though section 7 of the Charter is engaged by the impugned provision, the Act provides for two review mechanisms (RAD or application for leave and judicial review to Federal Court), and that both processes are compliant with the Charter. 

In defence of paragraph 110(2)(d), the Minister argued that it encourages “sharing the burden of determination with the United States” (para 105). Given the recent controversies surrounding the treatment of refugees entering the U.S., this rationale should merits scrutiny. Similarly, the Minister contended that the STCA encourages refugee claimants to claim in the first safe country of arrival. Again, in light of the practices of separating families and detaining individuals seeking protection in the US, this rationale has become contentious. 

The Court ultimately found that paragraph 110(2)(d) does not violate section 7 of the Charter and dismissed the applications for judicial review. The following is a summary of the Court’s key findings in arriving at this conclusion: 

    RAD did not err in dismissing the appeals on the basis of lack of jurisdiction.

•    Para 110(2)(d) is constitutionally valid, and does not infringe section 7 of the Charter (as such, the Court did not address the section 1 arguments)

•    The unavailability of a right of appeal does not per se amount to a breach of s. 7.

•    Minister’s position that STCA’s objective is to deter forum shopping is defensible.

Para 110(2)(d) gives effect to provisions of the STCA and is therefore not arbitrary. 

•    Para 110(2)(d) encourages claimants to seek protection in the first country of entry, which is consistent with fundamental principles of refugee law in Canada.

•     Even though the applicants’ statistics suggest that certain claims before the RAD are well-founded, the RAD bar is not overbroad since the principal aim of the STCA is to encourage persons to claim in the country of first entry.

•     Though removal can be undoubtedly stressful and vulnerable individuals may be impacted, the provision is not grossly disproportionate as it upholds the legislative objective of removing unsuccessful claimants in a timely manner. 

•      Though access to the RAD and Federal Court provide different remedies, those differences do not render them noncompliant with section 7. 

•     The exceptions to STCA (section 159.5 of the Regulations) benefit claimants who would otherwise not have been able to seek protection in Canada. Accordingly, it is not improper to impose limitations upon access to the refugee system in Canada and to create different classes of claimants. 

The Court dismissed the constitutional challenge but certified the following question: does paragraph 110(2)(d) of the Act infringe section 7 of the Charter, and, if so, is this infringement justified by section 1? According to the Luemba decision, there are dozens of other cases that may be impacted by the appeal, the hearing of which will take place later this September/October.

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