Two definitions are necessary here. First, DCO’s “are countries that respect human rights, offer state protection, and normally do not produced refugees”, are “safe”, and determined to be DCO’s by the Minister of Immigration, Refugees and Citizenship Canada based on qualitative and quantitative measures, according to the Respondent in Feher.[2] Second, a PRRA enables refugee claimants to present new facts or evidence of risk of persecution, torture, cruel and unusual treatment or punishment or risk to life to Canada Border Services Agency (CBSA) prior to removal. A positive PRRA leads to protected person status and allows the person to remain in Canada and apply for permanent residence. A negative PRRA results in removal although judicial review of the PRRA decision is possible.

Feher combined five individual applications from persons who feared removal to Hungary, a DCO, and had made refugee claims based on their Roma ethnicity and in one case also based on gender-based violence. The Canadian Association of Refugee Lawyers was also an applicant. The refugee claims in question had been refused and CBSA had directed the applicants to report for removal. Because the waiting period of 36 months had not elapsed, the applicants were ineligible for a PRRA. They had asked CBSA to defer the removal but were denied, leading them to seek judicial review of the refusals.[3]

The applicants in Feher challenged the constitutionality of paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act, which they claimed were based on stereotypes about DCO claimants.[4] They successfully argued that DCO claimants were treated differently from non-DCO claimants and the differential treatment was based on national origin, discriminatory and violated the equality guarantee found in subsection 15(1) of the Charter.[5] The applicants relied in part on Y.Z.[6] and Canadian Doctors[7].[8]

The Honourable Justice Boswell held in Feher:

“It was not necessary, in my view, for Parliament to differentiate between DCO and non-DCO claimants when imposing a restriction on when a failed refugee claimant could access a PRRA. Timely access to a PRRA 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.”[9]

The Court also noted that because the majority of failed claimants “are generally removed from Canada” before the 12-month waiting period is up “most failed refugee claimants will never be able to access a PRRA regardless of whether they are or are not a DCO claimant”.[10] However, Feher still represents a victory for Romani refugee claimants and DCO claimants more generally because it enhances the possibility of remaining in Canada due to a positive PRRA.

Despite Feher, there remain significant disadvantages for DCO claimants in comparison to the treatment of non-DCO claimants under the IRPA and its regulations.[11] Furthermore, Justice Boswell certified two questions, which means an appeal of Feher could be initiated in the coming weeks.

Sources

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