Amnesty International welcomes the Federal Court decision on 20 March 2019 striking down the 36-month Pre-Removal Risk Assessment (PRRA) bar for refugee claimants from Designated Countries of Origin (DCO) on constitutional grounds. The court found that the bar violated Section 15 of the Charter, the right to equality and non-discrimination.
DCO claimants are those whose country of origin is designated by the Minister as a country that is less likely to produce refugees. There are currently 42 countries designated as a DCO, including Mexico, which continues to face an unrelenting human rights crisis in such areas as violence against women, disappearances and torture, and Hungary, where there are well-documented cases, including by Amnesty, of persecution of Roma people.
An application for a PRRA allows an individual under a removal order to be able to have the risk of persecution they might face upon deportation be examined by an officer. Submitting a PRRA application results in an automatic stay of deportation until the application is reviewed and a decision is rendered.
In his decision this week, Feher et al v Minister of Public Safety and Emergency Preparedness, 2019 FC 335, Justice Boswell noted that “timely access to a PRRA is a significant benefit for failed refugee claimants and delaying this access to some claimants based on their country of origin impairs their right to equality” (para 296). The court also noted that there is an unmitigated risk of refoulement for DCO claimants as a result of the 36-month PRRA bar (para 293).
There are several ways in which DCO claimants are disadvantaged in the refugee protection system. In fact, this decision comes 4 years after a decision from the same court to strike down the bar on DCO claimants from being able to appeal denied refugee claims to the Refugee Appeal Division (RAD). In that decision, YZ v Canada, 2015 FC 892, the court found that denying access to the RAD was a violation of the right to equality and non-discrimination.
DCO claimants are currently subjected to a shortened timeline to submit their refugee claim (45 days as compared with 60 days for non-DCO claimants), they do not have access to an automatic stay of removal while an appeal is being heard or a judicial review of a RAD decision is being considered, and cannot apply for a work permit until after 180 days have elapsed since their claim is referred to the Refugee Protection Division (RPD).
DCO claimants are also ineligible to apply for a PRRA for 36 months from the date of rejection of their claim, while failed non-DCO refugee claimants must wait 12 months. This difference in treatment for failed non-DCO and DCO claimants was the impugned issue in this week’s decision.
“Amnesty International has long advocated for Canada to do away with the DCO regime altogether. Making distinctions between safe and unsafe countries of origin not only leads to unequal and unfair treatment, to draw the line is inherently subjective and arbitrary,” Alex Neve, Secretary General of Amnesty International Canada, said. “Refugee claimants from DCO countries must rebut the presumption that the country they are fleeing is, in fact, safe. This presumption has the effect of insinuating that the refugee claimant is fabricating or has no sound basis to their story before their claim is even considered. This is contrary to basic refugee law principles which require decision makers to presume a refugee claimant is telling the truth unless there is a reason, such as serious inconsistencies, to disbelieve them.”
“Although neither decision strikes down the DCO regime itself, they both show that there are serious constitutional problems with the DCO regime,” Justin Mohammed, Human Rights Advocacy and Policy Campaigner at Amnesty International Canada noted. “The effect of the DCO regime has been to systematically violate the rights of refugee claimants. In 2018, 52% of the claims from Hungary were accepted, even though Hungary is on the DCO list.”
Instead of further tweaking a fundamentally rights-violating system, Amnesty International urges Canada to refrain from appealing the decision and take immediate steps to do away with the DCO regime altogether. Canada must ensure a fair process for all refugee claimants regardless of national origin. Every refugee claimant should be given a fair hearing and guaranteed due process.
