Refugee claimants gain right to appeal

By Jared Will

In a year that has been full of hardship, refugees from Designated Countries of Origin (DCO) have won an important victory: those whose claims are rejected now have a right of appeal.

The DCO list

The Designated Countries of Origin (DCO) list is a list of 42 countries that the previous Government of Canada deemed to be “safe”. This means that refugees who come from any of these countries face a different process than refugees who do not. They have less time to prepare their application and, until recently, had no avenue for appeal if their claim was rejected.

Essentially, fear-mongering campaigns that promote the idea of “bogus” refugees and the system being subject to abuse laid the groundwork for the creation of the DCO list. Among refugee advocates, the list has been controversial since its inception: many of the countries on the list are widely considered to be unsafe for many of their citizens.

The DOC system amounts to a two-tiered refugee system that unjustly discriminates against some refugees in their application process based on their nationality. And then, having no recourse to appeal once a decision is made.

The challenge before the court

In 2015, the Canadian Association of Refugee Lawyers (CARL) launched a constitutional challenge to the designated country of origin (DCO) regime to provide all refugees with equal access to appeal.

On February 24 and 25, 2015, the challenge was heard in the Federal Court in Toronto.

The challenge involved both the Refugee Appeal Division (or RAD, the department of Immigration Canada that rules on refugee claim appeals) – and the process by which countries are placed on the DCO list.

The challenge came before the Court as a consolidated case involving three gay men who were citizens of Hungary, Croatia and Romania. After their refugee claims were denied, they challenged the provisions of the Act that denied them a chance to appeal to the RAD.

CARL sought and was granted public interest standing in this case because of its far-reaching implications for all DCO claimants.

The arguments

In effect, CARL and the other applicants argued that triaging refugee applications at the outset according to country of origin ignores individual factors and situations— supposedly the heart of refugee determination.

We argued that:

  1. The DCO regime violates section 7 of the Charter because it is overly broad and grossly disproportionate. The basis for this argument is that the criteria for designation have allowed for the designation of countries such as Mexico, Hungary, and Croatia, where claimants are in fact at risk of persecution.In other words, while the government has stated that its objective is to use the DCO regime to deter claims from so-called “safe” countries, the law allows the designation of unsafe countries.
  1. Lack of appeals based on DCO list discriminates against refugee claimants on the basis of their national origin and therefore contravenes s. 15 of the The Court was presented with extensive evidence of the government’s negative stereotyping of DCO claimants, and in particular Roma claimants.

As part of this argument, we submitted evidence that the DCO regime has a disproportionate impact on particular groups of refugee claimants. This includes:

  • refugees with trauma-related or cognitive impairments
  • those seeking protection from gender-based persecution or on the basis of their sexual orientation or gender identity and
  • ethnic minorities.

The decision

Justice Boswell found in our favour for access to appeals via the RAD on July 23, 2015. He struck down s. 110(2) (d.1) of the IRPA because it violates equality rights under section 15 of the Charter.

In his judgment, Justice Boswell stated that this part of the Immigration and Refugee Protection Act (IRPA):

draws a clear and discriminatory distinction between refugee claimants from DCO-countries and those from non-DCO countries, by denying the former a right to appeal a decision of the RPD and allowing the latter to make such an appeal. This is a denial of substantive equality to claimants from DCO countries based upon the national origin of such claimants.”

Even better, Justice Boswell refused to suspend his declaration. This meant the access to appeal came into effect immediately, despite the Department of Justice’s request for a 12-month grace period (legally termed a “suspension”).

Unfortunately, Justice Boswell refused to consider the constitutionality of the designation mechanism found at s. 109.1 of the IRPA. That mechanism and the other consequences of a designation therefore remain in force. So, while all refugees now have access to appeal, DCO country claimants still face a different process than non-DCO claimants in preparing their applications, and are considered under different criteria.

What’s next

The previous government appealed Justice Boswell’s decision. But for now, all refugees have access to an appeal if their claims are denied, no matter what their country of origin. On Nov. 10, the Department of Justice requested additional time from the Court in order to seek instructions from Canada’s new federal ministers regarding the appeal. CARL is hopeful that the appeal will be withdrawn

As for the DCO list, CARL remains engaged in the effort to strike down the mechanism that leads to DCO designations, and we have raised this issue on cross-appeal in the Federal Court of Appeal.

It is only in striking down the DCO regime in its entirety that refugee claimants can truly receive fair and dignified treatment.

Jared Will practices immigration and refugee law in Toronto, with a focus on judicial review and appellate matters. He is counsel for CARL in the challenge to the constitutionality of the designated country of origin regime that is presently before the Federal Court of Appeal