No declaration that U.S. is safe for Canada’s refugees

No declaration that U.S. is safe for Canada’s refugees

(Guidy Mamann, Barrister and Solicitor)

The title of a recent Globe and Mail editorial, “Yes, America is a safe haven” (July 2/08) suggests that our Federal Court of Appeal declared the United States to be a safe place in which to make a refugee claim.

In fact, our court reached no such conclusion.

Now, why should a Canadian court concern itself with the adequacy of the American refugee system? Because Canada is allowing the U.S. to decide the fates of refugee claimants who Canada is otherwise committed to protect in Canada, under Canadian law.

By signing the 1951 Convention Relating to the Status of Refugees, Canada undertook to consider the refugee claims of anyone who reached its shores. In December 2004, Canada broke this promise when it entered into an agreement with the U.S. This agreement rendered a whole class of refugee claimants ineligible for our protection by virtue only of the fact that they were physically in the United States.

In this agreement Canada declared that the U.S. respected minimal international norms as they relate to the processing of refugee claims. Accordingly, since refugee claimants in the U.S. were considered to be in a “safe third country”, with certain exceptions, they were no longer eligible for our protection. Such claimants were considered ineligible for a refugee hearing in Canada regardless of whether or not they made a refugee claim in the U.S., wanted to make a claim in the U.S., or were denied refugee status in the U.S.

The Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International joined John Doe, an unnamed refugee claimant in the U.S. to challenge the legality of the agreement. They presented expert evidence to our Federal Court to prove that the U.S. does not, in fact, meet minimal international standards when it assesses refugee claims.

In November, 2007, Mr. Justice Phelan, agreed with these litigants and struck down the agreement as unconstitutional. The effect of the decision was later stayed pending the inevitable appeal.

On June 27th Federal Court of Appeal struck down Justice Phelan’s decision citing a number of technical errors in how he handled the case.

The FCA concluded that:

1. The actual promulgation of a regulation by cabinet is not a decision that can be reviewed. Although, cabinet’s decision that the U.S. is safe is reviewable, the applicants were late in appealing that decision;

2. Justice Phelan was wrong in concluding that cabinet had to find actual compliance by the U.S. with international norms before it could declare the U.S. “safe”. The FCA said that as long as cabinet considered certain factors set out in the regulations it was irrelevant whether or not there was actual compliance with international norms;

3. The applicants should have sought an order compelling our government to conduct statutorily required reviews of American refugee practices rather than to seek a judicial review of the failure to conduct such reviews; and

4. The trial judge was wrong in entertaining a constitutional argument on the assumption that John Doe, the unnamed litigant in the proceeding, would have been turned back at the Canadian border if he had actually made a refugee claim there. Instead, the judge should have heard the case only if Doe had actually been turned back.

In spite of these perceived shortcomings in Phelan’s decision, nowhere in the Court of Appeal’s decision is anything that comes close to the conclusion that the American refugee system complies with minimal international standards. The court noted that some of the evidence presented by the applicants was defective in that it didn’t exist at the time that cabinet declared the U.S. safe. However, the court never adopted any factual conclusions contradicting this evidence.

It is clear that allowing the Americans to assess the refugee claims of those who would have otherwise sought asylum here places upon us an uncomfortable obligation to supervise the performance of our greatest ally and trading partner.

Nonetheless, that is the position we have placed ourselves into by entering into this unwise agreement.
Perhaps, for the sake of good relations with the U.S., Canada’s national newspaper, and indeed our government, may prefer to interpret the FCA’s decision as a declaration that “Yes, America is a safe haven”. But in reality the Federal Court Appeal said no such thing. Instead, it has merely ensured the future involvement of the Supreme Court of Canada.

If the refugee advocates are unsuccessful there, no doubt they will re-litigate this case afresh keeping a sharp eye on all of the technical hoops that the FCA is placing in their path.

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Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at reporter@migrationlaw.com.