Wednesday, February 7, 2007

Refugee case tests safe-haven law

Judge reserves decision on Colombian's challenge of Safe Third Country pact
Toronto Star
Feb 07, 2007 04:30 AM
Nicholas Keung

Allowing a Colombian refugee claimant facing deportation in the United States to come to Canada instead would break a bilateral accord and open the door to more legal challenges, the Federal Court of Canada was told yesterday.

"By granting the exception, others might want the same benefit and ask for that particular relief," government lawyer David Lucas warned in the second day of a hearing marking the first constitutional challenge to the two-year-old Safe Third Country Agreement.

The pact requires refugee claims in Canada and the U.S. to be processed in the country where asylum seekers first land.

The refugee– identified only as John Doe to protect him from possible reprisals by Colombian guerrillas – had sought permission to cross the border to pursue his legal challenge here last August, after the same court found that he "would not suffer irreparable harm" from being turned back to the U.S.

Justice Michael L. Phelen reserved decision on the test case yesterday, after hearing lawyers for the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches argue that the U.S. is not a safe place for asylum seekers because of its "non-compliance" with international refugee and human rights law.

Advocates claimed the U.S. has a poor human rights record, as shown in its treatment of Guantanamo detainees and Canadian citizen Maher Arar, and said that by turning refugees back at the border, Canada violates their Charter rights.

"The U.S. has continued to breach its obligations with its policies and practices ... and failed to provide protection," contended lawyer Lorne Waldman, one of four lawyers arguing Doe's side in court.

Doe's case returned to court after U.S. immigration authorities arrested him in Nebraska. Information from Colombian authorities indicates his brother disappeared last month, after complaining to police that guerrillas were harassing him to gain information on Doe.

Because Doe could be deported at any time, the judge issued an interim order Monday to stop Canadian immigration officials from turning him away should he show up at the border.

Another lawyer for Doe, Leigh Salsberg, said the arbitrary U.S. refugee determination system excludes some legitimate asylum seekers by imposing a one-year deadline to file a refugee claim and an excessively broad definition of its "security and terrorism bar."

Claimants in the U.S. are more likely to be imprisoned with criminals and have a harder time getting legal help – which increases the likelihood of losing their cases, she added.

Lucas said Ottawa continues to assess the designation of the U.S. as a safe third country.