The Trumpist Contagion?
The sequence of facts I am about to reveal sounds so far fetched, so Orwellian in its bureaucratic absurdity that one would assume I am either writing a piece of fiction or describing a sequence of events in some far off dysfunctional country in Africa or the Middle East. Sadly, this is a brief recap of my case last week before the Federal Court of Canada.
I will do my best to distill the facts down from the volumes of material which was before the Court to a few basic facts and I do mean facts. Not a word of this is editorialized, sensationalized, fictionalized or exaggerated.
1) The claimants entered Canada from the United States, through a legal land border crossing and sought to make refugee claims in Canada.
2) The claimants were allowed to make claims in Canada because they were exempted from the Safe Third Country Agreement (STCA) which would have forced them back to the United States for a hearing in that country.
3) The claimants were exempted from the STCA because the female claimant’s mother and sister live in Canada and have already been determined to be Convention Refugees.
4) The claimants attended their refugee hearing where the tribunal found that the claimants have suffered persecution in Moscow.
5) Notwithstanding this finding, the tribunal found that there was an “Internal Flight Alternative” (IFA), a city in Russia, where the claimants could live without fear of persecution and therefore determined the claims negative.
6) Since the claimants entered Canada legally and were exempted from the STCA, they were prohibited from appealing their negative refugee claims. If the claimants had entered Canada illegally they would have been allowed to appeal their negative decision to the Refugee Appeal Division.
7) Since the claimants entered Canada legally Immigration was in the position to deport the claimants from Canada. If the claimants had entered Canada illegally Immigration would not have been allowed to deport the claimants until their appeal and Judicial Review had been completed.
8) The Minister of Public Safety and Emergency Preparedness was aware that the laws set out above, which allows the Minister to deport the claimants because they entered Canada legally, is being constitutionally challenged later this week. If the law is struck down, the claimants cannot be deported until their Appeal is completed.
9) Even though the Refugee Board had concluded that the claimants faced persecution in Moscow, the Minister arranged to deport the claimants to Moscow, clearly ignoring Canada’s international obligations not to “refoul” or return the claimants to persecution.
The Court’s verdict:
We asked the Court to stay or freeze the deportation of the claimants . We noted that the present law which incentivises refugees to enter Canada illegally is a law which is being constitutionally challenged in several days. We asked the Court to stay the deportation until the Court decides whether the law is illegal.
The good news is that the Court granted our clients’ a reprieve and they have been allowed to remain in Canada pending a challenge to the law and their negative refugee claims.
Let me be clear. There are clear cases where Canada ought to pursue deportation vigorously. Cases where claimants have been determined to have committed fraud against our refugee system or cases where claimants have abused our generosity and committed crimes in Canada. However, when the Minister vigorously pursues a deportation like this one, one must assume that either the officer is on auto pilot and has failed to take into consideration the specific facts of the case, or the Trumpist contagion has taken root within the Ministry. In either case Canadians should be alarmed by the facts of this case and what amounts to an absurd use of the law against the most vulnerable sector of our society.
If you have any questions about Immigration or Refugee law please contact Shelley Levine at 416.364.2345