By Michael Swan. Catholic Register. 28 August 2008

TORONTO — Administrative backlogs, a marriage of convenience with the United States and compromised due process in Canada’s refugee system have churches taking Canada’s government to the Supreme Court. Concurrently, refugee advocates are pushing politicians to live up to a law Parliament passed in 2001, and then re-passed this summer.  The Canadian Council of Churches, Amnesty International and the Canadian Council for Refugees (CCR) will challenge Canada’s Safe Third Country agreement with the United States at the Supreme Court of Canada.

The groups initially won a ruling from the Federal Court of Canada, which struck down Canada’s Safe Third Country arrangement with the United States. That agreement stipulates that refugees who present themselves at land crossings between Canada and the United States must apply for refugee status in the United States, and are not allowed to enter Canada or make a claim in Canada.

Justice Michael Phelan ruled the treaty illegal, because the United States deports some refugees back to torture and death while denying the right to file a refugee claim.

The Federal Court of Appeal overturned that decision with a ruling that it is not within the Federal Court’s competency to rule whether or not the United States is, in fact, a safe country for refugees. The appeal court also said the churches and nongovernmental organizations had no standing to appeal to the courts, and that only a rejected refugee could make the case.

The Canadian Council for Refugees intends to tell the Supreme Court justices about a couple from Honduras who made it to the Canada-U.S. border in early 2006. The man was sent back to the United States, while his pregnant wife was allowed to cross into Canada and make a successful refugee claim.

In the United States, the man was immediately jailed and deported before he could file a refugee claim. Two months later he was killed by the criminal gang he told officials was threatening his life.

“He would have been accepted had he been allowed to enter [Canada], but instead he’s dead and his son will never know his father,” said CCR executive director Janet Dench.

“It’s not clear that the U.S. is a safe third. Many of us would say it is not a safe country for all refugees. Until it is a safe country for all refugees, Canada should not be a party to the abuse of human rights that takes place there,” said CCR president Liz McWeeny, who coordinates the refugee sponsorship program for the Catholic diocese of Thunder Bay.

That the appeal court would make a ruling based on procedure while ignoring the human rights reality that refugees face in the United States is shocking, said Canadian Council of Churches general secretary
Rev. Dr. Karen Hamilton.  “This is not good. It’s not a good decision in our minds for sure,” she
said.

Meanwhile refugee advocates are also watching carefully as Parliament tries one more time to force the government to allow refugees to appeal decisions made by lone members of the Immigration and Refugee Board (IRB). A new immigration act in 2001 reduced the administrative panels from three adjudicators to just one, but instituted an appeals division. Despite receiving royal assent, the government put the appeals division on ice at about the same time as the September 11 attacks in the United States.

This spring, Parliament passed Bill C-280 to force Ottawa to get the appeals division up and running. The Senate passed the bill June 18; but because the Senate amended the bill slightly, limiting the appeals to cases heard after the appeals division has begun to operate and giving Ottawa a year to set up the new division, the House of Commons must debate the bill all over again. That’s scheduled for late October.

“It’s a very ironic thing that you have to have a piece of legislation in order to have the [original] legislation enforced,” said Dench.

Meanwhile, despite a raft of recent appointments, the IRB is still short staffed. There are 103 board members available to hear cases and another 30 who re-hear cases which the Federal Court sends back because of procedural errors. That’s 30 short of a full complement.

The IRB has a backlog of 44,435 pending cases. The average processing time has risen from 14 months last year to 15.9 months.