Court strikes down appeal bar for nationals of Designated Countries of Origin

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Date: 
24 Jul 2015

On July 23, 2015, the Federal Court ruled that denying refugee claimants from Designated Countries of Origin access to the Refugee Appeal Division is a violation of the Canadian Charter of Rights and Freedoms.

The Court ruled that these claimant must have access to the Refugee Appeal Division, effective immediately.

The CCR welcomes the decision: we have always maintained that discriminating between claimants on the basis of their country of origin is fundamentally unfair.

Brief summary

  • The applicants asked the Court to look at the whole issue of Designated Countries of Origin (DCO), including the short timelines for DCO claimants, but the Court said no, timelines are not relevant to this case.The Court only looked at the bar on access to the Refugee Appeal Division (RAD) for DCO claimants. 
  • The Court found that the RAD bar for DCO claimants contravenes s. 15 of the Charter (right to equality under the law and non-discrimination). DCO claimants are discriminated against on the basis of national origin.
  • The Court rejects the s. 7 arguments (right to life, liberty and security of the person). The Court states that there is no s. 7 right to an appeal.
  • The Court finds that the government did have a legitimate purpose in trying to deter abusive claims, but there is no evidence that a RAD bar adds anything to the RAD bar for claims without credible basis or manifestly unfounded claims. (Therefore the Charter violation is not justified under s. 1)
  • The Court ruled that the decision takes effect immediately since there is nothing Parliament needs to decide. There will be an extra caseload for RAD, but people should not go another day deprived of their right to equal protection and equal benefit of the law without discrimination. The Court also noted that until the decision takes effect there is a risk of deportation to a persecutory situation.
  • Two questions were certified: whether RAD bar violates s. 15 of the Charter and if yes, whether it is saved by s. 1. This means that the government can (and likely will) appeal the decision to the Federal Court of Appeal.

The case was brought by three affected refugee claimants and the Canadian Association of Refugee Lawyers (CARL).

The decision is available on the Federal Court website at:

http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/110850/index.do

or in PDF:

http://ccrweb.ca/sites/ccrweb.ca/files/fc-rad-dco-july-2015.pdf

Media articles:

http://globalnews.ca/news/2127904/tory-policy-discriminates-against-refugee-applicants-from-so-called-safe-countries-court-finds/

http://www.cbc.ca/news/politics/conservatives-refugee-system-overhaul-dealt-another-blow-by-federal-court-1.3165544

http://www.thestar.com/news/immigration/2015/07/23/court-strikes-down-ottawas-safe-country-list-for-refugees.html