Applicants had benefit of safety net provided by obligations of removals officer

Immigration and Citizenship - Refugee protection - Safe third country

Applicants brought applications for judicial review challenging constitutionality of paragraph 110(2)(d) of Immigration and Refugee Protection Act (Act) . That provision limited access to Refugee Appeal Division (RAD) of Immigration and Refugee Board (IRB) for certain classes of asylum seekers who enter Canada from United States of America (US), pursuant to Safe Third Country Agreement between US and Canada (STCA). Under STCA, refugee claimants arriving from US at Canadian land border port of entry could not seek protection there. Responsibility over their claim fell to US, it being first safe country in which they arrived. Claimants arriving from US were returned there at Canadian border and directed to make their claim for asylum there. Application for judicial review was dismissed. Judge found that applicants had not discharge burden to show that RAD bar set out in paragraph 110(2)(d) of Act infringed s. 7 of Charter. Judge found that exemptions to STCA were benefit to those persons who would otherwise not have the opportunity to seek protection in Canada. Judge found that parliament was entitled to create different classes and to impose limitations upon access to refugee determination system in Canada. Applicants appealed decision with Federal Court of Appeal. Appeal dismissed. Scope of s. 7 rights differed as between citizens and non-citizens in light of fundamental principle that latter did not have unqualified right to enter or remain in Canada . In consequence, removal of non-citizen did not in itself engage liberty and security interests encompassed in s. 7 . While psychological stress was inherent in refugee determination process, psychological stress was indistinguishable from ordinary stresses of deportation . Denial of appeal to RAD was but one measure in process that may lead to removal. Requests for deferral were available where failure to defer would expose applicant to risk of death, extreme sanction or inhumane treatment. Importantly, removal officers also retained at discretion to defer removal in cases where these elements were not strictly met. Applicants had benefit of safety net provided by obligations of removals officer and jurisdiction of Federal Court to stay removal, and for four of five applications, safety net worked to their advantage.

Kreishan v. Canada (Citizenship and Immigration) (2019), 2019 CarswellNat 4200, 2019 FCA 223, Wyman W. Webb J.A., Donald J. Rennie J.A., and J.B. Laskin J.A. (F.C.A.); affirmed (2018), 2018 CarswellNat 2103, 2018 CarswellNat 2746, 2018 FC 481, 2018 CF 481, E. Heneghan J. (F.C.).

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