Amnesty International will intervene to argue for the right to challenge the legality of immigration detention
Amnesty International, alongside other human rights organizations, will intervene at the Supreme Court of Canada on November 14, 2018, in a landmark case on immigration detention, Minister of Public Safety and Emergency Preparedness v Chhina.
This Supreme Court case is about the basic right of immigration detainees to challenge the lawfulness of their detention by way of habeas corpus – a constitutionally protected right derived from the common law to impose a check on the power of the State to deprive individuals of their liberty. Amnesty International will argue that Canada is under international legal obligations to guarantee immigration detainees this right.
Tusif Ur Rehman Chhina is a man of Pakistani origin who was held for over 2 years in immigration detention, since November 2015. During that time, his detention was reviewed 12 times under the mechanism put in place by the federal Immigration and Refugee Protection Act, yet he was kept in detention because the Canada Border Services Agency (CBSA) believed that detention was necessary in order to eventually deport him even though there were alternatives to detention presented.
When Mr. Chhina, who was being held in Alberta, applied to Court to have the legality of his detention reviewed, the Court declined to hear the case stating that the existing federal statutory mechanism was sufficient. The Alberta Court of Appeal subsequently overturned that decision, underscoring the importance of the right to habeas corpus, which requires a judge or Court to review the detention. The federal government is now appealing this decision before the Supreme Court.
Canada’s immigration detention regime frequently fails to respect international legal standards, including the right to liberty. Canada does not have a legal limit on the maximum length of time that an individual can be held in immigration detention. That means the CBSA can hold migrants in detention for long periods of time – sometimes years, even indefinitely – without criminal charges.
Detention reviews are not conducted before a judge, nor before an independent tribunal. They are carried out by ministerial decision makers and are subject to judicial reviews, not appeals. This means that, upon judicial review, only the reasonableness of a decision to detain would be examined, not the legality of the detention itself. Despite recent announcements to consider a wider range of alternatives to detention and more actively ensure immigration detention is a measure of last resort, CBSA continues to detain children and pregnant women, sometimes forcing families to choose between detention or separation. Moreover, CBSA remains the only major law enforcement agency with no independent oversight body.
Amnesty International is being represented by immigration and refugee law experts Laila Demirdache, Michael Bossin and Jamie Liew. On behalf of Amnesty International, they will argue that the broad right to challenge one’s detention by way of habeas corpus extends to immigration detention, that this challenge must be heard before a court, not a ministerial official, and that Canada is under international legal obligations to guarantee this right.
