The Federal Court has struck down one of the last remaining planks of a controversial revamp of the refugee asylum system introduced with great fanfare by the Harper government as a way to root out what it called bogus claims.
On Wednesday, Justice Keith Boswell declared it is “unconstitutional” for Ottawa to treat refugees from so-called “safe countries” differently from other refugees when it comes to being assessed to determine if deporting them would put them in danger.
The ruling followed two previous court decisions that saw some of the other key elements of reforms enacted by the then-Conservative government knocked down and dismantled.
“The system they created is a total failure, a flop,” said veteran refugee lawyer Lorne Waldman, who was not involved in the court challenge. “It was ill-conceived, ill-thought out. The Conservative government created a system that didn’t work. They trumpeted the reform as a 21st Century system, but it turned out to be the opposite.”
In 2012, Stephen Harper’s Conservatives introduced a series of changes targeting refugee claimants from designated safe countries, subjecting them to different treatment. These refugees were rushed through the asylum process, had restricted access to appeals and health coverage, and faced quick deportation. The goal, the government said, was to “prevent fraud and maintain the integrity of its border.”
Critics note that people from so-called safe countries can still face persecution at home due to sexual orientation, ethnicity and religion.
The safe country list initially included 23 countries and has since been expanded to 42, including the United States, Czech Republic, Hungary and Mexico.
Different parts of the reforms have been successfully challenged in court over the years. The Federal Court has previously ruled that all failed refugee claimants should be granted access to appeal and the government was ordered to restore health-care coverage for all refugees.
The remaining Harper reforms still in place for safe-country refugee claimants include a 180-day waiting period for work permits. Refugees from other countries, meanwhile, can work immediately. Claimants from safe countries are given an asylum hearing within 45 days, versus 60 days for others. The work permit wait is now being challenged in court. The refugee board has also said it is no longer following the quick timelines for hearings.
In the latest decision, Boswell declared it unconstitutional for Ottawa to impose a 36-month bar on risk assessments for those from the safe countries as opposed to just a one-year bar for anyone else who has exhausted all available avenues to delay deportation.
The court challenge was initiated by five failed asylum seekers, all citizens of Hungary and of Roma descent. They all made a claim in 2011, alleging fear of persecution in Hungary based on their ethnicity, and in one case, the fear of gender-based violence.
Since Hungary was deemed a safe country, they faced a three-year delay in getting a risk assessment after their asylum requests were rejected. They claimed the rule breached the Charter of Rights and Freedoms.
With the passage of time, each of the litigants has jumped the 36-month bar, and lawyers for the government had asked the court to dismiss the lawsuit because the cases were now moot. They also argued that the group only represented Roma from Hungary and was not representative of everyone from the designated countries
The court disagreed.
“It involves an important constitutional issue, there is a fulsome record, and there is a strong public interest in finding not only an answer to the question of whether the three-year (risk assessment) bar violates the Charter, but also in not allowing a potentially unconstitutional provision to persist,” Boswell wrote.
The court heard from witnesses for the litigants that Canada had a history of excluding certain groups from immigration by “vesting wide discretion in officials to establish geographical tiers of preferred immigrants” and that the safe-country regime had a negative effect on groups such as Roma refugees in their ability to seek protection in Canada.
“I think every person has a right to be treated the same, in the same situation. For me to fight this, right away I said yes. Even though I might not be impacted by the law changing, I wanted to be here, because I thought ‘this is wrong’,” said Richard Sebok, one of the five Roma litigants.
“Why am I being treated differently than others? It was like I was back in Hungary, being treated differently by the government. In Hungary I was treated differently because I am Roma, and here I was treated differently because I am Hungarian. And I know that is wrong. We all come from different countries to get protection. And I did not want anyone else to be treated like I was.”
The litigants also challenged the way countries are being classified as safe or not.
“Statistics on outcomes in refugee determinations from a given country can vary substantially over time, due to changing country condition evidence and random factors,” Osgoode Hall law school professor Sean Rehaag said in an affidavit. “A country may be safe for many claimants but unsafe for subsets of claimants.”
The federal government argued the asylum reforms were necessary because the refugee board was strained in 2012 with a backlog of over 60,000 unheard claims and there was about a 19-month waiting time for an asylum decision. Currently, the board has 74,645 outstanding claims with wait times for a hearing hovering at around two years.
Teny Dikranian, a former asylum policy manager at the immigration department, told the court it would take an average of four and a half years to remove a failed refugee in 2012 because there were multiple layers of recourse available to claimants and no limits on the number of applications for failed refugees to delay their deportation.
“Making the system timelier was necessary to address the growing backlog, to deter non-genuine claims, and to provide for timelier protection to those who need it,” Dikranian was quoted as saying in the court decision.
Boswell said it was “not necessary” to impose a restriction on risk assessments based on country of origin.
“Timely access to (the assessment) is a significant benefit for failed refugee claimants and delaying this access to some claimants based on their country of origin impairs their right to equality,” Boswell wrote in a 105-page ruling.
“Nationals targeted for the delay … suffer the effects of discrimination for the period of the delay,” he explained. “This is an inequality that is disproportionate and overbroad.”
Lawyers for the litigants, all of whom are still in Canada, welcome the decision.
“You cannot tar an entire group of people based on nationality,” said Anthony Navaneelan, one of six lawyers representing the five refugee claimants in this court case. “This is textbook discrimination.”
Canada is currently dealing with an influx of so-called “irregular migrants” from multiple countries crossing illegally from the United States, which is deemed a safe country. These asylum seekers are being dealt with according to their nationality, and not by their last place of residence.
The public safety minister has until April 19 to file an appeal.
Nicholas Keung is a Toronto-based reporter covering immigration. Follow him on Twitter: @nkeung