Tag Archives: Refugee

Safe Third Country Agreement (STCA) is Unconstitutional, says the Federal Court of Canada in Landmark Decision

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Yesterday, Madam Justice McDonald, of the Federal Court of Canada (FC), released her decision declaring the Safe Third Country Agreement (STCA) between Canada and the US unconstitutional. This means that refugees who cross at land Points of Entry from the US to Canada cannot be returned to the US, where they risk being imprisoned.

This is a very important decision for refugees. The decision acknowledges that refugees who are returned to the US from the Canadian border are subject to unconstitutional violations of their rights. Imprisonment for having an ineligible refugee claim, without being heard, is traumatic and goes against the objective and spirit of the STCA. This acknowledgement is essentially a decision that the US is unsafe for many refugees. This opens the door for refuges to seek asylum in Canada when their safety is threatened in the US.  Downtown Legal Services represents Nedira Mustefa, ABC, DE and FG, four of the individual clients in the STCA challenge.  We congratulate our clients for their courage and bravery in bringing this challenge. 

Overview of Conclusion

The FC found that the STCA is invalid. Specifically, section 101(1)(e) of the Immigration and Refugee Protection Act (IRPA) and section 159.3 of the Immigration and Refugee Protection Regulations (Regulations), referred to as the Safe Third Country Agreement (STCA), are unconstitutional. These sections are of no force or effect as they violate s. 7 of the Canadian Charter of Rights and Freedoms (the Charter) and are not saved by s. 1 of the Charter. The Government of Canada has 6 months to address the Court’s concerns.

Summary of the Decision

The Justice introduced the six issues in front of her, the core issues being (1) whether the STCA was outside of the enacting bodies’ jurisdiction (whether the STCA was ultra vires), (2) whether the STCA violates s. 7 of the Charter, if yes, (3) whether it is saved by s. 1, and (4) whether the STCA violates s. 15 of the Charter.

Justice McDonald relies on the Federal Court of Appeal (FCA) decision from 2008 in Canadian Council for Refugees v. Her Majesty the Queen as a full answer to the jurisdictional issue. Justice McDonald agreed with the decision from 2008 that jurisdictional issues cannot be raised on the basis of developing events or facts that occurred after the STCA came into force.  Ultimately, Justice McDonald found the legal arguments aimed at the same provisions as determined by the FCA in 2008 have been framed differently but have not changed in substance and she sees no ground to depart from the binding authority of the 2008 decision.

At this point, Justice McDonald began her s. 7 Charter analysis. Her conclusions herein are the landmark change in the law. Justice McDonald found that the STCA provision violates the liberty rights and security of the person interests enshrined in s. 7 of the Charter. Justice McDonald also found the STCA provision  overbroad and grossly disproportionate to its legislative objective. She then found this s. 7 violation cannot be saved by s. 1 of the Charter. In other words, the STCA is unconstitutional and invalid law.

In reaching her decision, she relied heavily on the testimonies of DLS clients Nedira Mustefa and ABC to conclude that the inevitable imprisonment and horrendous treatment in the US upon return, as well as the heightened risk of refoulement (return) to dangerous countries of origin, causes significant psychological and physical harms. These harms, which are a direct result of the Canadian decision to return claimants to the US, threaten the applicants’ rights to liberty and security of the person. Justice McDonald found the STCA to be overbroad as the resulting deprivation of liberty has no connection to the legislative objective of “sharing of responsibility”. She then determined the impacts on returned claimants to be grossly disproportional to the administrative benefits of the STCA.

Finally, in finding the violation of s. 7 not to be saved by s. 1 of the Charter, Justice McDonald rejects that there is a pressing and substantial purpose for the STCA, finding it difficult to reconcile why some claimants are turned away at the border and others who fit in STCA exceptions can cross. Minimal impairment is not met, as there is no fair review process and claimants face imprisonment and related consequences upon arrival to the US. Lastly, the deleterious effects of detention and threats to security of the person are not proportional to the salutary effects of administrative efficiency.

Having found a violation of s. 7 rights, Justice McDonald did not deal with the section 15 equality arguments raised by the Applicants. The Applicants argued that changes to US asylum law increase the risk of refoulement of STCA claimants returned to the US who claim discrimination under the category “particular social group”. The Applicants further argued that the one-year bar on claiming asylum in the US disproportionately affects women due to the nature of the claims and the social norms in their countries of origin.

To the final issue on the Respondents’ argument that Ms. Mustefa did not have “clean hands”, Justice McDonald is clear: “I do not find that she intended to deceive the CBSA Officer or that she engaged in serious misconduct. Furthermore, there was no finding of misconduct on the part of the CBSA. Accordingly, I accept her evidence.” Either way, Justice McDonald allowed Ms. Mustefa’s judicial review application on the basis of the violation of s. 7 of the Charter.

This decision comes after years of legal advocacy and uncertainty for the individual litigants and all those impacted by the STCA. The Federal Court previously ruled in 2007 that the STCA was unconstitutional, based on gaping deficiencies in the US asylum system. Now, having taken into account the indisputable evidence of our clients’ lived experiences, Justice McDonald’s decision provides a clear reaffirmation that the US is not a safe country and Canada returning claimants to the US violates their human and Charter-protected rights.  

Read the Full Decision

Press contacts:

Prasanna Balasundaram, Staff Lawyer Refugee and Immigration Division, p.balasundaram@utoronto.ca, 647-210-0176­­­

To learn more:

CBC News 

Reuters 

The Guardian 

Footnote (Preliminary Issues):

Justice McDonald’s began the decision by addressing two preliminary issues. She first affirmed her decision from the February 21, 2019 motion to accept the expert evidence of Deborah Anker and Karen Musalo. Anker and Musalo’s personal views and external advocacy were found not to affect their ability to give expert evidence in these cases. Justice McDonald then denied the request for the late addition of new procedural fairness arguments raised on behalf of Nedira Mustefa. She determined it unfair to the Respondents and not in the interest of justice to allow the request.

Separated Uyghur-Canadian Families: Canada must bring them home

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Khalil Mamut’s dream is to be reunited with his three young children.[/caption]

Imagine escaping from a home where you do not feel safe, just to be captured and sent to a horrifying prison. There, you live in pain, and people accuse you of crimes you have not committed. Years later, you are freed and your name is cleared – but you now have no home. No country will welcome you in; no country will grant you asylum. Finally, one country opens its doors to you, but it is not a home. Your heart lies with your family halfway across the world. But, they will not let you in to reunite with your family. You have been separated for over a decade. You are kept apart from your children; you miss first words, first steps, and first days of school. They are growing up without a father only because their country fails to recognize the absurdity of your case and grant you the status you need to reunite with your family, to reunite with your children. 

This is the story of the three men.

Ayub Mohammed, Salahidin Abdulahad, and Khalil Mamut are three Uyghur men who left China after childhoods of discrimination, persecution, and hopelessness. They travelled to Pakistan, and then Afghanistan, in search of a new home. Before their dreams could be realized, Ayub, Salahidin, and Khalil were taken with nineteen other Uyghur migrants into American custody, shipped to Guantanamo Bay due to unsubstantiated claims that they were part of the East Turkestan Islamic Movement (ETIM) – an alleged terrorist organization that China convinced the United States to target. This led to over five years of detention in Guantanamo Bay, where they were aggressively and repeatedly interrogated. They were exonerated as early as 2003, and yet were kept in detention and isolation for several more years.Salahidin Abdulahad’s children desperately await their father’s return.[/caption]

The US finally released the men from Guantanamo Bay, but refused to let them enter the States. Instead, the men were sent all over the world to countries that would accept them, without any say in where they would end up. Ayub is now in Albania, and Salahidin and Khalil in Bermuda, but their families are here in Canada; their kids growing up without their fathers. Downtown Legal Services is launching a campaign, aiming to bring to light the absurdity and inhumanity of their cases, revealing the continued pain and limbo that the Canadian immigration system has put on them. Posing no threat to Canadian national security, these men have been waiting over five years to reunite with their families and find a safe place to land.

They must be brought home. 

Uyghur Persecution: The Uyghurs are a predominantly Muslim Turkic ethnic minority group native to Xinjiang, China, that are persecuted by the Chinese government.  In 2018, a UN human rights panel reported than 1 million ethnic Uyghurs were detained in “re-education camps”, where detainees are forced to denounce their faith, learn Mandarin, study Chinese propaganda and chant Chinese slogans in prison-like facilities. Former inmates have reported punishments such as waterboarding, handcuffing and being strapped to “tiger-chairs” for those who fail to follow. Detainees have also reported brainwashing, widespread sexual abuse and forced compulsory sterilization within these camps. 

Guantanamo Bay:  All 22 Uyghur men who were detained at Guantanamo Bay Detention Center were cleared of “enemy combatant” status as early as 2003. Yet, the last of the Uyghur men were released from the detention center in 2014. For more information on the Uyghur men detained in Guantanamo watch “Uyghurs: Prisoners of the Absurd” (NFB documentary).

The three men’s stories have been covered by the Star. For more details on their legal case, please visit this website. To support the men’s fight to reunite with their families, sign this petition. 

DLS Challenging Canada-US Agreement to Turn Away Asylum Seekers at Border

Case profiles

Amidst recent changes in the United States’ asylum system and the increasing numbers of migrants entering Canada, many have identified the Safe Third Country Agreement as an unacceptable part of our legal system. Downtown Legal Services (DLS) represents two individuals challenging the Safe Third Country Agreement (STCA) at the Federal Court – as already reported by the CBC, Globe and Mail, and CTVNews. Three organizations have joined our clients in this challenge: the Canadian Council for Refugees (CCR), Amnesty International (AI), and the Canadian Council of Churches (CCC).

The STCA is a bilateral agreement between Canada and the United States. Under the STCA, individuals who arrive or travel through the United States are ineligible to make a refugee claim at a port-of-entry in Canada. Likewise, individuals who arrive or travel through Canada are ineligible to make a claim in the United States. The STCA is premised on the belief the United States is a safe country for asylum seekers. We argue that the United States is no longer a safe country for asylum seekers.

The Law Underlying the Safe Third Country Agreement

The United States is currently designated as a “safe country” under section 102 of the Immigration Refugee Protection Act (IRPA), and is currently the only country with this designation. Under section 102 of the IRPA, the governor in council must ensure the continuing review of factors set out within section 102(2) of the Act. Under section 102(2), the governor in council should consider:

  1. whether the country is a party to the Refugee Convention and to the Convention Against Torture;
  2. its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture;
  3. its human rights record; and
  4. whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection.

2007 Challenge to the Safe Third Country Agreement

To date, the outcome of any review by the governor in council has never been published. However, a previous challenge to the STCA by CCR, CCC, and AI was upheld by the Federal Court in 2007. There, Justice Phelan of the Federal Court found it was unreasonable to conclude that the United States was a “safe country”. The decision found that since the United States was returning asylum seekers to countries where they still faced a real danger, it was not complying with its obligations under the Refugee Convention and the Convention Against Torture and infringed upon rights under the Canadian Charter of Rights and Freedoms.

This decision was overturned at the Federal Court of Appeal in 2008. However, the appellate court did not review if the United States was a safe country or consider the Charter arguments in their full scope. Rather, the Federal Court of Appeal found that since CCR, CCC, and AI, being organizations, did not have the appropriate standing to present claims on behalf of individuals trying to gain entry at the Canada-United States border. Notably, the Federal Court of Appeal did not reverse Justice Phelan’s finding that it was unreasonable to conclude the United States was a safe country.

Current Challenge

When individuals attempt to enter Canada through the United States, they interact directly with the Safe Third Country Agreement. The current challenge to the STCA includes arguments that the agreement infringes upon the section 15 and section 7 Charter rights of individuals crossing at the border.

Section 15 of the Charter concerns individuals’ rights to equal treatment and benefit of the law, free from discrimination. The section 15 arguments on the applicants’ right to equality focuses on the unique challenges faced by asylum claimants who are women. The current asylum system in the United States does not accommodate women appropriately for numerous reasons. As an example, a June 2018 decision by Attorney General Jeff Sessions states that individuals cannot use “domestic violence” as a ground to claim asylum. By precluding women from using “domestic violence” as a ground to claim asylum, they can be returned to countries where they would have no state protection from these acts. In this way, returning asylum seekers who are women to the United States denies them the full protection and benefit of the law.

Section 7 of the Charter concerns individuals rights to life, liberty, and security of their person. The section 7 arguments focus on the increased risk of returning asylum seekers to nations in which they face danger. Since 2007, the United States’ asylum system has not become any safer for asylum seekers. Many of the past concerns, including the high rates of return asylum seekers to countries where they face danger, still remain. By returning asylum seekers to the United States, where they will be returned to countries where they face a real risk to their life and security, there is a violation of the asylum seekers’ rights under section 7 of the Charter.