July 24, 2015
Appeal Bar for Certain Refugee Claimants Struck Down as Discriminatory!
In an important decision released yesterday, the Federal Court of Canada has ruled that denying access to the Refugee Appeal Division (RAD) for certain refugee claimants from particular countries – called “Designated Countries of Origin” or “DCOs” – discriminates on the basis of national origin. The provision of the Immigration and Refugee Protection Act setting out this distinction (subsection 110(2)(d.1)) has been struck down as unconstitutional for violating section 15(1) of the Canadian Charter of Rights and Freedoms, which protects against discrimination.
Since 10 December 2012, refugee claimants from a list of countries the Minister of Citizenship and Immigration deemed less likely to produce legitimate claims (DCOs), were barred from appealing negative decisions to the RAD. This was only one of the many distinctions between DCO and non-DCO claimants. While the Government’s clear intention was to deter fraudulent refugee claims and prevent those from allegedly “safe” countries from appealing refusals of their claims, the Federal Court has sent a strong message that the means of achieving these objectives must respect the fundamental rights guaranteed by the Charter. The Honourable Mr. Justice Boswell who decided the case wrote the following at paragraph 128 of the decision:
The introduction of paragraph 110(2)(d.1) of the IRPA has deprived refugee claimants from DCO countries of substantive equality vis-à-vis those from non-DCO countries. Expressly imposing a disadvantage on the basis of national origin alone constitutes discrimination (Andrews at 174; Withler at paragraph 29), and this distinction perpetuates the historical disadvantage of undesirable refugee claimants and the stereotype that their fears of persecution or discrimination are less worthy of attention.
Allowing claimants from certain countries a right of appeal while forbidding this for others undoubtedly creates a distinction based on national origin, an enumerated ground under section 15(1) of the Charter. This distinction was also found to create disadvantage by perpetuating prejudice or stereotyping, creating the impression that refugee claimants from DCO countries are all “bogus” claimants who only come here to take advantage of Canada’s refugee system.
This decision is an important step in the right direction, given the controversy surrounding the extensive refugee reforms rolled out in December 2012. This also suggests that additional aspects of the DCO regime may be subject to judicial scrutiny. A question has been certified, and it remains to be seen what the Federal Court of Appeal will make of this decision. (Decision: 2015 FC 892)
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