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Immigration - Refugee. Canadian Council for Refugees v. Canada (Citizenship and Immigration)
In Canadian Council for Refugees v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considered the validity of the bilateral Canada-US 'Safe Third Country Agreement' scheme, where refugees must apply for refugee status in the first of the two country that they land in. In these quotes the court sets out the scheme itself:A. Safe Third Country Agreement
[32] About 30 years ago, Canada and the United States undertook the negotiation of an agreement to share responsibility for refugee status claims. The Canadian Council for Refugees, Amnesty International and the United Nations High Commissioner for Refugees (“UNHCR”) were among the organizations whose comments resulted in substantive amendments to a draft of the Safe Third Country Agreement. The two states signed the agreement in 2002.
[33] The preamble to the agreement expressly acknowledges the governments’ international obligations to refugees (paras. 1, 2 and 8). It also addresses the parties’ shared determination to safeguard for each eligible claimant “access to a full and fair refugee status determination procedure” (para. 8) and emphasizes that both countries offer generous refugee protection systems (para. 4). Accompanying the treaty is a Statement of Principles associated with its implementation, which states that the parties intend to abide by principles that include safeguards for claimants, such as the opportunity for claimants to have a third party present during proceedings (Procedural issues associated with implementing the Agreement for cooperation in the examination of refugee status claims from nationals of third countries: Statement of Principles, August 30, 2002 (online)).
[34] The principle animating the Safe Third Country Agreement is that “the country of last presence shall examine, in accordance with its refugee status determination system, the refugee status claim of any person who arrives at a land border port of entry” (Article 4(1)). This is the “crux” of the treaty (A. Macklin, “Disappearing Refugees: Reflections on the Canada‑U.S. Safe Third Country Agreement” (2005), 36 Colum. Hum. Rts. L. Rev. 365, at p. 371) or its “general principle” (S. Baglay and M. Jones, Refugee Law (2nd ed. 2017), at p. 279). The country of last presence is “that country, being either Canada or the United States, in which the refugee claimant was physically present immediately prior to making a refugee status claim at a land border port of entry” (Article 1(1)(a)). The parties committed to reviewing the agreement and to inviting the UNHCR to participate in the first review (Article 8(3)).
[35] While Article 4(1) sets out a broad principle, the treaty is limited in its application. To begin, the governments sought to ensure that “indirect” or “chain” refoulement would not occur. They agreed that individuals returned to Canada or the United States would not be removed therefrom until that country had adjudicated the individual’s refugee status claim (Article 3). They also did not seek to apply the agreement to citizens or habitual residents of either country (Article 2) and provided for exceptions for unaccompanied minors and family reunification (Article 4(2)).
[36] Even when the principle articulated in Article 4(1) would apply, the parties agreed that there should be an authority to exempt claimants. Article 6 provides that “either Party may at its own discretion examine any refugee status claim made to that Party where it determines that it is in its public interest to do so”.
B. Domestic Implementation of the Safe Third Country Agreement
[37] Section 101(1)(e) of the IRPA implements the core principle of the Safe Third Country Agreement by providing that the claims of individuals who “came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence” are “ineligible” to be referred to the Refugee Protection Division. This gives domestic effect to the principle set out in Article 4(1) that an individual’s country of last presence will examine their refugee status claim. Various other rules in the IRPA and its regulations affect the application of this “general rule”, including (1) designation and review mechanisms; (2) limits to the scope of the general rule; and (3) exemptions.
(1) Designation and Review Mechanisms
[38] The IRPA sets forth the relevant criteria for when a country may be designated by the Governor in Council under s. 101(1)(e). Only countries that comply with the non-refoulement obligations under the relevant international conventions are eligible:102 (1) The regulations may govern matters relating to the application of sections 100 and 101 . . . and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions
(a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture; [39] Section 102(2) lists factors to be considered when ascertaining whether a country complies with refugee protection standards mandated by the Conventions:(2) The following factors are to be considered in designating a country under paragraph (1)(a):(a) whether the country is a party to the Refugee Convention and to the Convention Against Torture;
(b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture;
(c) its human rights record; and
(d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection. [40] The Governor in Council “must ensure the continuing review” of the s. 102(2) factors with respect to each designated country (s. 102(3)). The United States is the only country that has been designated (Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2004‑217). Section 159.3 of the IRPR, which the appellants challenge, provides:159.3 The United States is designated under paragraph 102(1)(a) of the Act as a country that complies with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture, and is a designated country for the purpose of the application of paragraph 101(1)(e) of the Act. (2) Limits to the General Ineligibility Rule
[41] Various provisions in the IRPR narrow the application of the ineligibility rule by ensuring that not all refugee claimants arriving from the United States are returned there. The regulations do this in two ways. First, the regulations contain limitations that closely track the contours of Articles 2, 3 and 4 of the Safe Third Country Agreement. For instance, under the regime considered in this appeal, s. 101(1)(e) ineligibility applies only to the claims of individuals who arrive at land ports of entry — not elsewhere along the land border, by ship or by air (IRPR, s. 159.4). There are specific exceptions for individuals with family in Canada, to facilitate family reunification (s. 159.5(a) to (d)). As the treaty contemplates, these exceptions are applied according to Canada’s domestic understanding of the family (Article 1(2); IRPR, s. 159.1). There are also exceptions for unaccompanied minors (s. 159.5(e)) and for individuals who have certain Canadian immigration statuses (s. 159.5(f) and (g)). Finally, the regulations ensure that certain individuals whose claims will not be adjudicated in the United States can access the Canadian system (s. 159.5(h)).
[42] Second, the regulations include an exception reflecting Canada’s discretion, preserved under Article 6 of the treaty, to consider claims when doing so is in its public interest (Baglay and Jones, at p. 279). Section 159.6 of the IRPR ensures that claimants who establish that they have been charged with, or convicted of, an offence punishable by the death penalty in the United States or another country are not returned.
(3) Exemptions From the Application of the General Ineligibility Rule
[43] Individuals subject to the provisions implementing the Safe Third Country Agreement cannot access some of the statutory mechanisms available to claimants in different circumstances. For instance, returnees are not eligible for a pre‑removal risk assessment before they are removed (IRPA, s. 112(2)(b)). Further, there is no administrative appeal body set out in the IRPA for them. Judicial review at the Federal Court, however, remains available (s. 72). Judges may grant stays of removal while such proceedings are ongoing (Federal Courts Rules, SOR/98-106, r. 373; see also Baglay and Jones, at pp. 354‑57).
[44] The IRPA does, however, contain mechanisms for temporary or permanent exemptions from return to the United States (see, e.g., H. Mayrand and A. Smith‑Grégoire, “À la croisée du chemin Roxham et de la rhétorique politique: démystifier l’Entente sur les tiers pays sûrs” (2018), 48 R.D.U.S. 321, at p. 342). First, officers may grant an administrative deferral from the enforcement of a removal order. This authority flows from s. 48(2) of the IRPA, which requires that removal orders be enforced “as soon as possible”. Courts have held that this provision leaves officers with discretion to delay the enforcement of a removal order (see, e.g., Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153, at paras. 13‑18; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, [2020] 2 F.C.R. 355, at para. 50; Tapambwa, at para. 87). In this case, ABC and her daughters benefitted from an administrative deferral of removal, during which their counsel applied for a stay of removal.
[45] Second, officers may grant a temporary resident permit. This authority flows from s. 24 of the IRPA, which allows an officer to issue a permit if they are “of the opinion that it is justified in the circumstances”. The Minister or their delegate may also make instructions to guide officers in determining when to issue such permits (s. 24(3)). Here, Ms. Al Nahass’s family received temporary resident permits while the Minister considered whether to grant permanent exemptions.
[46] Third, the Minister may grant an exemption based on humanitarian and compassionate grounds, as occurred for Ms. Al Nahass’s family. The Minister may exempt certain foreign nationals who are inadmissible from any of the requirements of the IRPA. They may grant exemptions where they view doing so as “justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected” (s. 25.1(1)). This assessment must “consider and give weight to all relevant humanitarian and compassionate considerations in a particular case” (Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, at para. 33 (emphasis in original)).
[47] Fourth, the Minister has a further discretion to exempt foreign nationals who are inadmissible from any of the requirements of the IRPA. The Minister may do so when they are “of the opinion that it is justified by public policy considerations” (s. 25.2(1)). The respondents observe that this provision permits the Minister to establish a temporary public policy exempting individuals who are part of a specified group from the ineligibility provision.
[48] Any removal order against a foreign national can be stayed while the Minister makes their decision in relation to s. 25.1(1) or 25.2(1) (IRPR, s. 233).
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