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Liberal decision to drop appeal of refugee measure ruling is 'the right one'

Canadian Press THE CANADIAN PRESS

OTTAWA – The Liberal government says it won't fight to preserve the Conservative government rule changes that made it impossible for some rejected refugee claimants to pursue appeals.

A Federal Court ruled in July that it was unconstitutional for the Conservatives to strip the right of appeal for refugee applicants from a list of countries the government deemed to be ``safe.''

The former Harper government began a legal appeal of that judgment, but lost power in the October election that vaulted Justin Trudeau's Liberals to power.

The lingering legal battle was just one of many left over from the Conservative era, when the courts repeatedly found Conservative laws to be in breach of the charter.

Diane Laursen, a spokeswoman for Immigration Minister John McCallum, says the government has withdrawn the legal appeal in the refugee case, which was brought by the Canadian Association of Refugee Lawyers on behalf of rejected refugees from Croatia, Hungary and Romania.

The Conservatives brought in a list of Designated Countries of Origin to weed out refugee claimants – countries that were deemed to have proper courts, human rights and rule of law and were thus less likely to produce genuine refugees.

The Liberals have said they will amend the rules.

``Our government has promised to provide citizens of Designated Countries of Origin a right to appeal refugee decisions,'' Laursen said Monday in an email.

``Withdrawing this (constitutional) appeal is another important step towards fulfilling the government's commitments and reviewing our litigation strategy.''

The Canadian Association of Refugee Lawyers had announced the government's decision to drop the legal case on social media earlier in the day, but did not respond to a request for comment.

Federal Court Justice Keith Boswell ruled last July that the ``safe'' country policy was discriminatory, because it denied an appeal process to refugee claimants from the designated countries that was available to all other refugee applicants.

``It also serves to further marginalize, prejudice and stereotype refugee claimants from DCO countries which are generally considered safe and 'non-refugee producing,''' said the Federal Court judgment.

``Moreover, it perpetuates a stereotype that refugee claimants from DCO countries are somehow queue-jumpers or 'bogus' claimants who only come here to take advantage of Canada's refugee system and its generosity.''

In an interview with AdvocateDaily.com, Toronto constitutional lawyer Annamaria Enenajor notes the legislative intent behind the introduction of the Designated Country of Origin regime was to deter abuse of the refugee system by people who came from countries generally considered safe.  

“It stripped these claimants of a procedural safeguard afforded to others solely on the basis of country of origin, regardless of whether persecution actually exists,” she says. “The operating assumption was that applicants from these countries were less likely to be genuine and were, therefore, abusing Canada’s refugee system."

The Federal Court held that the introduction of the Designated Country of Origin regime deprived refugee claimants from certain countries of substantive equality vis-a-vis those from other countries, she says.

Enenajor, a lawyer with Ruby & Shiller Barristers, describes the Liberal government’s announcement that it will not appeal the Federal Court decision as significant.

“Although the Federal Court struck down the DCO scheme as running afoul of the equality provision of the Charter, it also rejected the argument that there is a constitutional right to appeal refugee decisions on the basis of s. 7 of the Charter,” she tells the online legal news publication. 

“Therefore, in response, the government could have scrapped the appeal process for all refugees altogether. Instead of doing so, it promised to provide all applicants with a right of appeal. In doing so, the government is showing that on this issue, it intends to institute procedural protections beyond those merely required to make the refugee regime constitutional.”

-With files from AdvocateDaily.com

© 2016 The Canadian Press

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