Last Updated on July 23, 2015 by Steven Meurrens
The Federal Court in Y.Z. and the Canadian Association of Refugee Lawyers v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2015 FC 892 (“Y.Z.“) has certified the following two questions:
Does paragraph 110(2)(d.1) of the Immigration and Refugee Protection Act (“IRPA“) comply with subsection 15(1) of the Charter?
If not, is paragraph 110(2)(d.1) of the IRPA a reasonable limit on Charter rights that is prescribed by law and can be demonstrably justified under section 1 of the Charter?
The Court also announced that effective immediately refugee claimants from designated countries of origin can access the Refugee Appeal Division (the “RAD“).
Paragraph 110(2)(d.1) of the IRPA was one of the pillars of the Conservative Party of Canada’s (the “CPC“) refugee reforms, albeit a small one in comparison to their other reforms. It denied access to the RAD for all refugee claimants from any designated countries of origin (“DCOs“). The current list of DCOs can be found on the Citizenship and Immigration Canada (“CIC”) website here.
Before continuing, it is worth noting that the CPC’s refugee reforms were very comprehensive. They included reducing asylum claim processing times by over 90%, the creation of the DCO regime, the denial of health care to certain claimants, the denial of work permits to claimants from DCOs, the removal of the ability to immediately file a Pre-Removal Risk Assessment after a refugee claim was denied, and, somewhat ironically, the creation of the RAD.
The Court Challenge
Subsection 15(1) of the Charter provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The Federal Court in Y.Z. found that the prohibition of refugee claimants from DCOs to access the RAD created a distinction on the basis of the national origin of the refugee claimant. Justice Boswell, who it might be worth noting was appointed to the Federal Court by the CPC, further found that the distinction drawn between the procedural advantage accorded to non-DCO refugee claimants and the disadvantage suffered by DCO refugee claimants was discriminatory on its face, and that it served to marginalize, prejudice, and stereotype refugee claimants from DCO countries, which are generally considered safe and “non-refugee producing.” As well, the Federal Court found that the distinction perpetuated a stereotype that refugee claimants from DCO countries are queue-jumpers or “bogus” claimants who only come to Canada to “take advantage of Canada’s refugee system and its generosity.” Finally, the Federal Court found that denying an appeal to claimants from DCOs did not correspond to whether those claimants were actually abusing Canada’s refugee system, nor did it correspond to whether they actually needed an appeal less than claimants from non-DCOs.
Justice Boswell did agree with the Government of Canada that there was a pressing and substantial objective in effecting the CPC’s 2012 reforms to the refugee selection process, a process which the Auditor General in 2009 reported was leading to widespread abuse. However, he determined that the absolute bar preventing appeals to the RAD for all claimants from DCOs was not the least drastic means through which the government could achieve its directions. This is especially because the IRPA as a result of the CPC reforms also now provides that refugee claimants whose claims are declared manifestly unfounded by the Immigration and Refugee Board (the “IRB“) do not have access to the RAD.
Fans of George Orwell would be pleased to note that at Paragraph 129 of the decision Justice Boswell paraphrases George Orwell to conclude that the effect of denying refugee claimants from DCOs access to the RAD “is akin to saying that all refugee claimants in Canada are equal, but some – ie. those from non DCO countries – are more equal than others.” He did not, however, address or substantially comment on the reduced asylum claim processing times for DCOs or the denial of work permits to them.
While the government initially announced that they were appealing the decision, Canada’s new Liberal Government of Canada has dropped the appeal. Diane Laursen, a spokeswoman for Immigration Minister John McCallum, has stated that “our government has promised to provide citizens of Designated Countries of Origin a right to appeal refugee decisions.” Personally, I agree with Justice Boswell that the IRPA’s restriction on RAD access for manifestly unfounded claims, as determined by the IRB, is a sufficient safeguard that will prevent RAD access for DCO claimants from leading to widespread abuse, nor does this mean a return to a lax system.