Rights groups fight refugee deal

By  Michael Swan, The Catholic Register
  • February 8, 2007
TORONTO - The United States human rights record and its war on terror are on trial in a Federal Court in Toronto. The Canadian Council of Churches, Amnesty International, the Canadian Council for Refugees and an anonymous Colombian in a Nebraska jail are trying to persuade a judge to suspend Canadian co-operation with the United States on handling of refugees.

The quartet of applicants alleges our southern neighbour violates basic human rights by sending some refugee applicants back to their country of origin to face torture and death. Canada has a "safe third country" agreement with the United States which forces refugees to apply for refugee status in the United States if they arrive there first.

By exposing would-be refugee claimants to arbitrary or politically motivated decisions by the United States to return people to torture states, the safe third country agreement also violates the Canadian Charter of Rights and Freedoms, said lawyers making the application.

While the lawyers argued about whether the U.S. refugee determination system violates the United Nations' Refugee Convention and the Convention Against Torture, the judge was also being asked to rescue the Colombian applicant, who was arrested just before the start of the trial. American authorities could put the Colombian John Doe on a plane to South America at any time, but would agree to send him to Canada if the judge ordered Canadian border guards to admit him despite the safe third country agreement.

The judge had yet to make his decision at The Catholic Register's press time.

The Canadian government violated its own rules when it entered into a safe third country agreement with the United States in 2004, said immigration lawyer Lorne Waldman. Canada made no inquiry into actual U.S. practices in refugee applications, and has failed to regularly review U.S. practices in the two years since.

Over that period information has surfaced about the U.S. policy of rendition, holding suspects without charge in Guantanamo Bay and the treatment of Maher Arar, said Waldman. It's a pattern which shows the United States is not complying with its obligations under article 33 of the United Nations Refugee Convention, or with article 3 of the Convention Against Torture. The United States is a signatory to both conventions, and the articles in question prohibit countries from returning any person to face torture.

Whether Canada should co-operate with an unfair refugee system in the United States is a moral question for Catholics, said Jesuit Father Jack Costello while attending the first day of court proceedings.

"It's against everything in Catholic moral laws," said Costello, who has worked on immigration and refugee issues for 25 years.

Canada should be there to protect people from a biased and unfair refugee system in the United States instead of turning people back at the border to cut down the numbers of refugee applications in Canada, he said.

"It's not like we're talking about sending people to North Korea. We're talking about sending people to the United States," said Crown lawyer David Lucas.

Lucas argued there is a mature and well-developed legal system in the United States, and that its refugee system is subject to numerous checks and balances, including judicial oversight. Canada is within its rights to share the burden of refugee applications with any country, including the United States, provided that country will give refugee applicants a fair hearing, said Lucas.

Arguing for the churches, the Centre for Refugees and Amnesty International, lawyer Barbara Jackman said the United States does not in fact provide a fair hearing to all applicants. Haitians, Arabs and Muslims have been targeted for mandatory detainment. She called U.S. immigration court decisions and procedures arbitrary.

Fundamentally, the United States does not qualify as a safe third country because its government agencies, including the Central Intelligence Agency, have engaged in torture, trained others to do so and deported people to torture states under the policy of rendition, said Jackman. Canada was supposed to review these factors before entering a safe third country agreement, and is supposed to continue monitoring American compliance with international law as a condition of continuing the agreement, she said.

"There is no evidence there was a proper review, an adequate review or even a cursory review of American practices," Jackman said.

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