September 19, 2019
Federal Court of Appeal Dismisses Constitutional Challenge by Refugee Claimants in Kreishan
In many cases, refugee claimants who are unsuccessful at the Refugee Protection Division have the right to file an appeal before the Refugee Appeal Division (RAD). If unsuccessful at the RAD, claimants may then challenge the RAD decision by asking the Federal Court for a judicial review.
However, the right of appeal before the RAD did not exist for Ms. Kreishan and the four other applicants whose cases were consolidated with hers in their recent Federal Court and Federal Court of Appeal cases. The applicants in Kreishan, challenged the constitutionality of paragraph 110(2)(d) of the Immigration and Refugee Protection Act (IRPA), which prohibits claimants who “came directly or indirectly to Canada from” the US from having their appeal heard by the RAD.
All of the applicants had entered Canada through a land border port of entry with the US and made refugee claims without first having made a refugee claim in the US. Even though the Canada-US “Safe Third Country Act” (STCA) generally prohibits individuals who enter Canada this way from making a refugee claim in Canada, all of the applicants were exceptions to this rule because they each had a family member in Canada who met at least one of the requirements of section 159.5 of the Immigration and Refugee Protection Regulations (IRPR).
The Refugee Protection Division (RPD) heard the applicants’ claims in Canada and the applicants were unsuccessful. The applicants then tried to appeal the RPD decisions by going to the Refugee Appeal Division (RAD). However, the RAD dismissed the appeals on the basis of paragraph 110(2)(d) of the IRPA.
The applicants challenged the RAD decision by asking the Federal Court to conduct a judicial review. They argued that paragraph 110(2)(d) violated section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, which provides:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
More specifically, the applicants contended that because they lacked access to the RAD they faced serious psychological stress due to the threat of being removed from Canada and were at a heightened risk of refoulement – the forced return of a refugee to a country where they are at risk of persecution on certain protected grounds or at risk of torture or cruel and unusual treatment or punishment. They also highlighted several advantages of having access to the RAD:
- The RAD allows appellants to introduce new evidence if it did not exist, was not available or could not have been provided to the RPD when the RPD made its decision;
- When reviewing the RPD decision, the RAD considers whether the decision was correct;
- The RAD has the power to grant protected person status without having to send the case back to the RPD; and
- Removal orders are automatically stayed until the RAD renders its decision.
The Honourable Justice Heneghan of the Federal Court noted that even though the “loss of a right of appeal to the RAD has consequential effects”, the applicants had benefited from the STCA exemptions and still had the “opportunity to seek judicial review” and “a judicial stay of removal” before the Federal Court. Justice Heneghan dismissed the applications, holding that paragraph 110(2)(d) is constitutionally valid:
Access to the RAD and access to the Federal Court are different remedies. However, the difference in those remedies does not make them non-compliant with section 7 of the Charter.
The Federal Court certified the following question, which enabled the applicants to appeal before the Federal Court of Appeal:
Does paragraph 110(2)(d) of the [IRPA] infringe section 7 of the [Charter]… and, if so, is this infringement justiﬁed by section 1?
The Federal Court of Appeal decided on 19 August 2019 that paragraph 110(2)(d) did not infringe section 7 of the Charter. Writing for the appellate court, Honorable Justice Rennie held that the Federal Court erred when it “assumed, but did not decide, that section 7 was engaged”. The appellants had argued that their right to security of the person was engaged by paragraph 110(2)(d). After conducting an analysis of the appellants’ engagement arguments, Justice Rennie determined that section 7 was not engaged for the following reasons, among others:
…the psychological stress asserted here is indistinguishable from the ordinary stresses of deportation and, consistent with the Supreme Court’s holding in Medovarski, does not engage section 7.
Section 7 is engaged at the point of removal, and is protected by the opportunity to seek a deferral of removal administratively, failing which, to seek a stay in the Federal Court. Nor does the Charter require that, in order to void the possibility of refoulement, an appellant tribunal be put in place.
If parliament was not obliged to enact the RAD in the first places, it cannot be the case that any limitation on the scope of its ameliorative reach can give rise to a section 7 engagement.
Although both the Federal Court and Federal Court of Appeal dismissed their case, the appellants may apply for leave to appeal before the Supreme Court of Canada. Let’s see if they pursue this option.