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CONSTITUTIONAL ISSUES - Right of appeal - Stay

Thursday, October 03, 2019 @ 8:36 AM  


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Appeal by refugee claimants from the dismissal of their appeals from decisions of the Refugee Board Appeal Division. The appellants came to Canada from the US and claimed they had family members in Canada. Under the exception of the Safe Third Country Agreement, the appellants were entitled to have their refugee claims determined in Canada. Under s. 110(2)(d) of the Immigration and Refugee Protection Act, they could only apply for leave and judicial review of a negative refugee claim decision in the Federal Court. The Appeal Division thus dismissed the appeals on jurisdictional grounds. Other failed claimants, however, had a right of appeal to the Refugee Appeal Division, accompanied by a statutory stay of removal. The appellants argued that the denial of a right of appeal to the Appeal Division infringed s. 7 of the Canadian Charter of Rights and Freedoms (Charter).

HELD: Appeal dismissed. Section 110(2)(d) of the Charter did not engage s. 7. The stress associated with not having a right of appeal and an automatic legislated stay pending appeal did not cause such psychological stress or harm that s. 7 was engaged. Psychological stress was inherent in the refugee determination process. While the opportunity for a second chance at establishing a claim for protection offered hope to a failed claimant, the psychological stress asserted was indistinguishable from the ordinary stresses of deportation. The fact that some claimants had only one chance to establish their claim and must seek recourse in the Federal Court did not engage s. 7. The s. 7 interests of all claimants, regardless of the underlying administrative basis of their rejection, were protected at the removal stage. Section 7 was engaged at the point of removal and was protected by the opportunity to seek a deferral of removal administratively, or if unsuccessful, to seek a stay in the Federal Court. There was no constitutional requirement for the government to act affirmatively to ensure that each person enjoyed a minimum of life, liberty and security of the person. The absence of measures aimed at reducing an existing risk of harm such as the risk of refoulement did not amount to deprivation within the meaning of s. 7. If Parliament was not obliged to enact the Appeal Division in the first place, any limitation on the scope of its ameliorative reach could not give rise to a s. 7 engagement.

Kreishan v. Canada (Minister of Citizenship and Immigration), [2019] F.C.J. No. 972, Federal Court of Appeal, W.W. Webb, D.J. Rennie and J.B. Laskin JJ.A., August 19, 2019. TLD-September302019010