Janice Tibbetts. Canwest News Service. Wednesday, July 09, 2008

OTTAWA – The Federal Court of Appeal has reversed a landmark court decision that had struck down an agreement with the United States banning refugee claimants from seeking asylum in Canada if they first passed through American soil. The appeal court has upheld Canada’s “Safe Third Country Agreement,” which has been in place since 2004 to put an end to a practice that the federal government has denounced as “asylum shopping” by failed U.S. refugee claimants. The decision, made public Wednesday, overturns a November 2007 ruling that found the agreement violates the Charter of Rights and international conventions.

Among other things, the appeal court rejected the earlier conclusion that the U.S. is not a safe country for refugees, in part because the Americans do not respect international conventions against returning claimants to countries where they face torture.

Justice John Evans wrote that the lower court overstepped its bounds by attempting to pronounce on “wide swaths of U.S. policy and practice.” Rather, the proper test was whether the federal cabinet acted in good faith when it negotiated the agreement and was satisfied that Canada’s southern neighbour granted sufficient protections to refugee claimants.

The idea behind the agreement, which the Canadian Council of Refugees says has barred thousands of claimants from entering Canada, is that prospective refugees have already reached a “safe country” when they arrive in the U.S.

The reciprocal agreement, the outcome of years of negotiations between the two countries and extensive consultations with stakeholders, including human rights groups, also applies to would-be refugees trying to cross the Canadian border into the U.S.

The latest court decision is a defeat for the Canadian Council of Refugees, the Canadian Council of Churches, Amnesty International, and a Colombian man identified as John Doe, who was denied refugee protection in the U.S. and faces deportation.

The appeal court concluded that the groups do not have a direct stake in the case. For the court to examine the broad charter implications of U.S. policy, a case would have to brought by a refugee claimant who tries to enter at a border point, said the decision.

“John Doe never presented himself at the Canadian border and, therefore, never requested a determination regarding his eligibility,” said the ruling. “There is, in this case, no factual basis on which to assess the alleged charter breaches.”

Janet Dench, executive director of the Canadian Council for Refugees, said the organizations may ask the Supreme Court of Canada to take on the case.

“We are appalled by the decision,” said Dench. “We were raising really important, key charter issues and they swept those to one side and never addressed whether refugee rights are being violated.”

She said it is “completely unrealistic” for a prospective refugee to launch a Canadian court challenge because they are turned away at the U.S.-Canada border within minutes or hours.