Sunday, June 22, 2008

Federal court rules U.S. unsafe for refugees

In a stunning decision released last week, our federal court struck down our agreement with the United States, which renders refugee claimants seeking entry to Canada by land ineligible to make a claim here.
In December 2004, Canada and the U.S. implemented an agreement in which each declared the other a “safe country” for refugee claimants.
Canadian refugee advocates became concerned for the fate of asylum seekers destined here who, they believed, would be unfairly denied needed protection down south.
The “Safe Third Country Agreement” addressed this concern by requiring our federal cabinet to conduct a “continuing review” of the policies and practices of the “safe country,” i.e. the U.S.
Our cabinet never conducted the reviews, but Canadian refugee advocacy groups did. They brought their findings to court and alleged the U.S. was not, in fact, safe for those seeking safe haven.
Our federal court agreed.
The court found the experts presented by the applicants were more credible, “both in terms of their expertise and the sufficiency, directness and logic of their reports” than the experts marshalled by our government.
The court couldn’t understand why our government didn’t bother to conduct the required review of American refugee practices even after the release of the Maher Arar report, which put into serious question U.S. assurances that it does not deport people to places where they may be tortured.
The court didn’t set out to decide which system was better or more generous. Instead, it sought to determine if the U.S. was meeting the minimum standards required of it.
The court was troubled by many deficiencies. For example, the U.S. generally bars asylum claims after one year of the claimants’ arrival. The court ruled this could disproportionately affect gays who may have to deal with cultural issues of shame, and women who may be unaware that spousal abuse may give rise to protection. Also, the U.S. Patriot Act renders refugees ineligible for protection if they are deemed to have given “material support” to a terrorist organization even where it is done under duress. In contrast, Canada makes allowances for duress, i.e. when it gave protection to a woman who was forced to cook for the Liberation Tigers of Tamil Eelam.
The groups had evidence that claimants in the U.S. were more likely to be detained and had less access to counsel than claimants here. The court, however, couldn’t find proof these factors would result in the actual denial of asylum.
The court’s 124-page decision is not likely to be the last word on the matter since it has given the parties the opportunity to propose questions for appeal.

Therefore, the current situation will stand … for now.
guidy mamann

1 အၾကံျပဳျခင္း:

Yangon Thar said...

Yes, America is a safe haven

From Thursday's Globe and Mail

July 2, 2008 at 8:39 PM EDT

When, in a supreme act of judicial chutzpah, the Federal Court of Canada accused the United States last November of being unsafe for refugees, Canada's refugee policy faced a nightmare of complications, including a flood of rejected claimants shopping for another chance at asylum. Thankfully, the Federal Court of Appeal tossed out that ruling Wednesday, and suggested a little restraint would go a long way in future.

The initial ruling, by Mr. Justice Michael Phelan, was breathtakingly ambitious, in effect killing a political agreement with a democratic neighbour – the product of more than a decade of negotiations – after hearing technical arguments on how the U.S. refugee-determination system works. Apart from the U.S. deportation of the Canadian Maher Arar to Syria – a terrible injustice, but no reason to scrap the 2002 Safe Third Country Agreement – the judge cited no examples or statistical evidence of deportations to torture. And in any case Mr. Arar was not a refugee claimant.

On what basis, then, did Judge Phelan declare the U.S. unsafe? As the Federal Court of Appeal pointed out Wednesday, no less a personage than the United Nations High Commissioner for Refugees monitored the negotiations, and at two stages – when the deal was signed in 2002, and again in 2006 – affirmed that the U.S. is a safe country for refugees.

Canada and the U.S. had agreed that refugees who arrive in one of these two countries cannot cross through a land border to the other (with a few exceptions, such as if the refugee has a spouse or close relative in the other nation). That's not a trick to keep people out. It's a way to conserve resources for refugees who really need protecting. While millions of people are stuck in refugee camps, Canada favours those refugees who can actually make their way here. The third country agreement means that 10,000 or more refugees a year who are already protected in a neighbouring land do not place demands on Canada's refugee-determination system or social safety net.

For such large stakes, the court process was clearly inadequate. Consider that the experts Judge Phelan relied on were brought to the court by the Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International, whose views he preferred to those of the Canadian government's experts. That preference was set out in what the Federal Court of Appeal called “two swift paragraphs” that were not up to the task.

But the core problem was summed up under the heading “Unwieldy nature of the inquiry”: “The Court is asked to examine, at large, wide swaths of U.S. refugee policy and practice in order to determine whether it was reasonable for the Governor in Council [the Cabinet] to conclude that it complied with international law,” Mr. Justice John Evans wrote. “The nature and breadth of this inquiry is unlike the more focused inquiries typically undertaken through the judicial process.” Judge Phelan accepted the wrong task. His conclusions have been properly dismissed.