Safe Third Country Agreement under fire

  • February 18, 2007
cross_tortureTORONTO - A man known to the courts only as John Doe is sitting in a jail in Nebraska waiting for a decision from a Canadian judge. He’s a Colombian in the United States because the rebel FARC army has shot at his family and threatened his life, but he is barred from applying for asylum because he has been in the United States for more than a year.
The Canadian Council of Churches, Amnesty International and the Canadian Centre for Refugees want him to be allowed to apply for refugee protection in Canada, where he would be free to make the application and likely to be accepted. But Canada's Safe Third Country Agreement with the United States won't allow him to cross the border to make the application. The agreement says that a refugee who lands  in the United States has to apply for asylum there and can't move on to Canada in hope of better treatment here.

Justice Michael Phelan has yet to rule on granting an injunction to allow John Doe to cross the Canada-U.S. border. He has issued two directions from the bench – one instructing his Canadian lawyers to ask American officials not to deport him to Colombia until he makes a ruling and the other to Crown lawyers that Canadian border officials be prevented from turning the Colombian away at the border if American officials drive him north.

Lawyers for the churches and public interest groups have brought the John Doe case before Federal Court to challenge the Safe Third Country Agreement on the grounds that the United States violates international human rights law by arbitrarily excluding people from asylum. They argue the law should be struck down because it exposes would-be Canadian refugees to the risk of deportation to torture from the United States. That violates John Doe's rights under the Canadian Charter of Rights and Freedoms.

For the churches the case goes deeper than the United Nations' Convention on Torture and the Refugee Convention. And deeper than the Charter of Rights and Freedoms.

"The biblical imperative is absolutely, fundamentally and foundationally clear that we are to care for the widow, the orphan and the sojourner," said Canadian Council of Churches general secretary Rev. Dr. Karen Hamilton. "Who are those? Those are the most vulnerable ones in our society."

It's too easy for comfortable, First World Canadians to forget the importance of hospitality in the Bible, said the United Church minister.

"The biblical imperative for hospitality was a biblical imperative for a hard time and place. You're in the desert. You're in a place where there's often no water. Hospitality is essential for life. For these people in our time and place the hospitality of our country of Canada is essential for life," she said.

Sending people back to face torture, or allowing it to happen because it is administratively convenient, violates clear Catholic teaching, said moral theologian Fr. John Parry.

"The deepest reason we don't want to do this is it implicates the whole society that does it," said the Jesuit professor at the University of Manitoba's St. Paul College, and author of Torture, Religious Ethics and National Security. "By turning a blind eye to what might be going on when we send a refugee applicant that doesn't fit our categories down to the States, the Safe Third Country arrangement, what might happen if he ends up tortured is we Canadians are implicated by that."

For Catholics the issue might be characterized as material co-operation in evil. In his 1993 encyclical The Splendour of Truth Pope John Paul II, quoting the Pastoral Constitution on the Church in the Modern World, characterized deportation as an "intrinsic evil" because it is "offensive to human dignity."

The average crucifix on the average bedroom wall even implies that Jesus was sent by Pontius Pilate to be tortured because it was administratively convenient.

American Catholic lawyers who work with refugees say they're worried by the direction their country's asylum system has taken since 9/11, but aren't certain their country's system is so broken that people need to be rescued from it, by Canada or anyone else.

"We still are the largest resettler of refugees in the world. By and large, the approval rates remain steady," said Kevin Appleby, director of migration and refugee policy for the United States Conference of Catholic Bishops.

Appleby finds it troubling, but also encouraging, that Canadian courts are deliberating about the extent to which his country adheres to the UN Convention Against Torture and the Refugee Convention.

"What might be going on partially might be to try to make a political point," Appleby said. "By embarrassing our government that way, maybe they will wake them up to the fact that the world is watching."

The U.S. bishops opposed exactly the same administrative practices at issue in the Canadian case. The bishops are concerned by policies which exclude from consideration for asylum anyone who has been in the United States for more than a year without making an application, anyone with a criminal record of any kind and anyone who has given material support to a terrorist organization even if that material support was extorted from them at gunpoint.

"There have been instances where bona fide refugees or asylum seekers have been denied entry," said Appleby.

A veteran of 20 years of work with refugees, attorney Peggy Gleason of the Catholic Legal Immigration Network in Washington says she wouldn't automatically start sending clients north if the Safe Third Country Agreement is struck down by Canadian courts.

"For most people we're dealing with it's just not a logical choice, and they have no ties," Gleason said. "So it's really not an option, as much as we would like it to be."

Among the problems in the U.S. refugee system that trouble Gleason is the overuse of detention.

"The biggest problems in this country are for people who come in and end up in the expedited removal process," she said. "They end up detained. They don't get much of a  fair hearing."

But Gleason is just as anxious to dispel any notion that the United States is a legal no-man's-land for refugees.

"I wouldn't call it a kangaroo court," she said. "It's got its defects, and given changes in recent years there are many limitations on it, but our asylum office in particular – as opposed to many immigration courts – indeed operates quite well."

The United Nations High Commissioner for Refugees doesn't condemn the United States but it has its concerns, said UNHCR's Ottawa spokesperson Nanda Na Champassak.

The UN's refugee agency has had a ginger relationship with the Canada-U.S. Safe Third Country Agreement from before it passed into law. The agency recommended changes to the law before it was passed, and not all of those changes were adopted. They don't oppose Safe Third Country Agreements so long as the purpose is to ensure asylum seekers get a hearing in one country or the other. At the same time the agency is concerned some are slipping through the cracks.

"This is what we wanted to make sure of, that you couldn't have a chain deportation where the person is sent back to the U.S. and the U.S. sends them back to Mexico, and then Mexico sends them wherever they came from," said Na Champassak.

It will be a long time before Justice Phelan wades through volume upon volume of evidence and case law and either strikes down or upholds the agreement. John Doe's lawyers hope that the judge at least rules on a temporary stay to get their client into Canada before that. However the judge decides, it will be appealed all the way up to the Supreme Court by one side or the other, said lawyer Andrew Brower, representing John Doe, the CCC, Amnesty and the Canadian Centre for Refugees.

As an American, Appleby finds it interesting to have Canadian courts hearing arguments over American refugee law.

"It's embarrassing as an American, but in some ways it's helpful that it sends a message that America is slipping in its commitments – its commitment to human rights," he said.

In bringing the case, the Canadian churches aren't arrogantly passing judgment on the United States, said the CCC's Hamilton.

"It is simply pointing to a wrong, pointing to something that needs to be righted and needs to be changed," she said.

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