r v. Canada, 2019 FC 335

IMM-3855-15 IMM-3838-15 IMM-591-16 IMM-3515-16 IMM-1552-17 2019 FC 335 Ferenc Feher, Richard Sebok and the Canadian Association of Refugee Lawyers, Erika Horvath and Ferenc Tibor Saalai, and Aniko Horvathne Serban ( Applicants ) v. The Minister of Public Safety and Emergency Preparedness ( Respondent ) Indexed as: Feher v. Canada (Public Safety and Emergency Preparedness) Federal Court, Boswell J.—Toronto, October 23-25, 2018; Ottawa, March 20, 2019.

Citizenship and Immigration — Exclusion and Removal — Removal of Refugees — Judicial reviews of decisions by inland enforcement officers refusing applicants’ requests for deferrals of removal — Applicants, citizens of Hungary of Roma descent, challenging validity of Immigration and Refugee Protection Act, s. 112(2) (b.1) — S. 112(2) (b.1) precluding refugee claimants from Designated Countries of Origin (DCO) from applying for pre-removal risk assessment (PRRA) before 36 months elapsing from last determination of risk before Refugee Protection Division (RPD) — Applicants’ refugee claims refused by RPD — Applicants served with Direction to Report for removal — Applicants DCO nationals, having to wait 36 months before applying for PRRA — Applicants stating, inter alia, that s. 112(2) (b.1) denying class of persons right to timely PRRA by virtue of their nationality — Whether s. 112(2)(b.1) inconsistent with Canadian Charter of Rights and Freedoms, s. 15(1) ; if so, whether s. 112(2)(b.1) justifiable under Charter, s. 1 — S. 112(2)(b.1), insofar as pertaining to DCO nationals, inconsistent with Charter, s. 15(1) — Differential treatment of DCO nationals constituting distinction based on national origin — Distinction not based on country conditions — Serving to marginalize, prejudice, stereotype refugee claimants from DCO countries — S. 112(2)(b.1) depriving refugee claimants from DCO countries of substantive equality — Expressly imposing disadvantage based on national origin alone constituting discrimination — Denying nationals from DCOs access to PRRA for 24 months longer than non-DCO nationals not proportional to government’s objectives, not minimally impairing — This inequality not saved by Charter, s. 1 — Not necessary for Parliament to differentiate between DCO, non-DCO claimants when imposing restriction on when failed refugee claimant could access PRRA — S. 112(2)(b.1) declared inconsistent with Charter, s. 15(1) insofar as concerning DCO nationals — Words therein “or, in the case of a person who is a national of a country that is designated under subsection 109.1(1), less than 36 months” having no force or effect with respect to DCO nationals — Questions certified — Applications allowed.

Constitutional Law — Charter of Rights — Equality Rights — Enforcement officers refusing applicants’ requests for deferrals of removal — Applicants, citizens of Hungary of Roma descent, challenging validity of Immigration and Refugee Protection Act, s. 112(2) (b.1) — S. 112(2) (b.1) precluding refugee claimants from Designated Countries of Origin (DCO) from applying for pre-removal risk assessment (PRRA) before 36 months elapsing from last determination of risk — Applicants’ refugee claims refused — Applicants DCO nationals, having to wait 36 months before applying for PRRA — Applicants stating, inter alia, that s. 112(2) (b.1) denying class of persons right to timely PRRA by virtue of their nationality — S. 112(2) (b.1), insofar as pertaining to DCO nationals, inconsistent with Charter , s. 15(1) — Differential treatment of DCO nationals vis-à-vis non-DCO nationals constituting distinction based on national origin for purposes of Charter , s. 15(1) — Distinction not based on country conditions — First aspect of substantive equality test satisfied by wording of s. 112(2) (b.1) — Distinction drawn between non-DCO, DCO refugee claimants in s. 112(2) (b.1) discriminatory on its face — Serving to further marginalize, prejudice, stereotype refugee claimants from DCO countries — S. 112(2) (b.1) depriving refugee claimants from DCO countries of substantive equality — Expressly imposing disadvantage based on national origin alone constituting discrimination — Denying nationals from DCOs access to PRRA for 24 months longer than non-DCO nationals not proportional to government’s objectives, not minimally invasive — 112(2)(b.1) declared inconsistent with Charter , s. 15(1) insofar as concerning DCO nationals, not saved by Charter , s. 1 .

Constitutional Law — Charter of Rights — Limitation Clause — Enforcement officers refusing applicants’ requests for deferrals of removal — Applicants, citizens of Hungary of Roma descent, challenging validity of Immigration and Refugee Protection Act, s. 112(2) (b.1) — S. 112(2) (b.1) precluding refugee claimants from Designated Countries of Origin (DCO) from applying for pre-removal risk assessment (PRRA) before 36 months elapsing from last determination of risk — Applicants’ refugee claims refused — Applicants DCO nationals, having to wait 36 months before applying for PRRA — Applicants stating, inter alia, that s. 112(2) (b.1) denying class of persons right to timely PRRA by virtue of their nationality — S. 112(2) (b.1), insofar as pertaining to DCO nationals, inconsistent with Charter , s. 15(1) — Whether impact of s. 112(2) (b.1) on rights of DCO claimants vis-à-vis non-DCO claimants proportionate to pressing, substantial objectives of s. 112(2)(b.1) — Charter , s. 1 engaged herein — Objective of s. 112(2)(b.1) part of overall objectives of immigration reforms — However, s. 112(2)(b.1) not proportional to government’s objectives, not minimally impairing — Risk of refoulement not mitigated by other avenues open to DCO claimants — Not proven herein that s. 112(2)(b.1) least drastic means by which government could satisfy its objectives, that s. 112(2)(b.1) having additional deterrent effect — Not necessary for Parliament to differentiate between DCO, non-DCO claimants when imposing restriction on when failed refugee claimant could access PRRA —- Act , s. 112(2) (b.1) not saved by Charter , s. 1 .

Practice — Mootness — Enforcement officers refusing applicants’ requests for deferrals of removal — Applicants, citizens of Hungary of Roma descent, challenging validity of Immigration and Refugee Protection Act, s. 112(2) (b.1) — S. 112(2) (b.1) precluding refugee claimants from Designated Countries of Origin (DCO) from applying for pre-removal risk assessment (PRRA) before 36 months elapsing from last determination of risk — Applicant’ refugee claims refused — Applicants served with Direction to Report for removal

— Deferrals of removal refused — Applicants DCO nationals, having to wait 36 months before applying for PRRA — Applicant Feher subsequently becoming eligible for PRRA — However, case management Judge dismissing respondent’s motion to dismiss applications based on mootness — 36-month PRRA waiting period eventually expiring for remaining applicants — Issue of mootness res judicata — Even though other individual applicants not becoming PRRA-eligible until after date of case management Judge’s order, same considerations, analysis applying to them mutatis mutandis — Discretion exercised herein to decide case on its merits — Case raising important constitutional question otherwise evading judicial review, adversarial context still present.

These were consolidated applications for judicial review of decisions made by various inland enforcement officers refusing the applicants’ requests for deferrals of removal. The applications involved a constitutional challenge to a part of the Designated Countries of Origin (DCO) regime established under the Immigration and Refugee Protection Act ( Act ). The applicants, all citizens of Hungary and of Roma descent, alleged that paragraph 112(2) (b.1) of the Act infringed subsection 15(1) of the Canadian Charter of Rights and Freedoms .

Paragraph 112(2)(b.1) precludes a refugee claimant from a DCO from applying for a pre-removal risk assessment (PRRA) before 36 months have elapsed from the last determination of their risk before the Refugee Protection Division (RPD) or the Refugee Appeal Division of the Immigration and Refugee Board. The applicants each made a refugee claim in 2011, alleging a well-founded fear of persecution based on their ethnicity and a fear of gender-based violence. The RPD refused their claims. The Canada Border Services Agency served each applicant with a Direction to Report for removal.

The applicants requested deferrals of removal, which were all refused. But for the 36-month waiting period applied to DCO nationals by virtue of paragraph 112(2) (b.1), the applicants would have had access to a further risk assessment by way of a PRRA prior to removal. While the applicant Mr. Feher later became eligible for a PRRA, a case management Judge dismissed a motion by the respondent to dismiss Mr. Feher’s applications based on mootness, finding that there was a clear adversarial context between the parties with respect to the constitutionality of the DCO provisions of the Act .

The 36-month PRRA waiting period eventually expired for all the applicants. The applicants stated, inter alia , that paragraph 112(2)(b.1) denies a class of persons the right to a timely PRRA by virtue of their nationality. According to the applicants, the nationality-based discrimination was intimately connected with discrimination based on the ethnicity of the Roma applicants who were affected. The applicants contended that the purpose and effect of paragraph 112(2) (b.1) is to single out all DCO from the pool of unsuccessful claimants and deny them access to a PRRA for a further 24 months.

They claimed this clearly denies DCO nationals a benefit under the law. The main issue was whether paragraph 112(2) (b.1) of the Act , insofar as it pertains to nationals from a DCO, is inconsistent with subsection 15(1) of the Charter and if so, whether paragraph 112(2)(b.1) could be justified under

section 1 of the Charter . Held , the applications should be allowed. The issue of mootness was res judicata . Even though the other individual applicants did not become PRRA-eligible until after the date of the case management Judge’s order, the same considerations and analysis applied to them mutatis mutandis . Discretion was therefore exercised herein to decide the present case on its merits. This case raised an important constitutional question that might otherwise have evaded judicial review, and there was still an adversarial context.

Paragraph 112(2) (b.1) of the Act , insofar as it pertains to DCO nationals, is inconsistent with subsection 15(1) of the Charter . The question to be determined was whether the differential treatment as to when a DCO claimant and a non-DCO claimant can apply for a PRRA constitutes a distinction based on an enumerated or analogous ground of discrimination. It was previously determined in Canadian Doctors for Refugee Care v. Canada (Attorney General) ( Canadian Doctors ) and Y.Z. v.

Canada (Citizenship and Immigration) ( Y.Z. ) that the differential treatment of DCO nationals vis-à-vis non-DCO nationals constitutes a distinction based on national origin for the purposes of subsection 15(1) of the Charter . To argue that the distinction between DCO and non-DCO nations is not nationality but, rather, the country conditions that exist at any point in time, is not persuasive. The fact that a country could conceivably be removed from the list of designated countries in the future does not make a claimant’s national origin mutable.

The first aspect of the substantive equality test was satisfied by the very wording of paragraph 112(2)(b.1) itself, which creates two classes of refugee claimants based solely on national origin. The distinction drawn between non-DCO and DCO refugee claimants in paragraph 112(2)(b.1) is discriminatory on its face. This distinction serves to further marginalize, prejudice, and stereotype refugee claimants from DCO countries which are generally considered safe and “non-refugee producing”.

Paragraph 112(2) (b.1) deprives refugee claimants from DCO countries of substantive equality vis-à-vis those from non-DCO countries with respect to their access to a PRRA. Expressly imposing a disadvantage based on national origin alone constitutes discrimination. Denying nationals from DCOs access to a PRRA for 24 months longer than non-DCO nationals is not proportional to the government’s objectives. This is an inequality that is disproportionate and overbroad and could not be saved by

section 1 of the Charter . The central question was whether the impact of paragraph 112(2)(b.1) on the rights of DCO claimants vis-à-vis non-DCO claimants is proportionate to the pressing and substantial objectives of this paragraph. Denying a PRRA for a DCO claimant until 36 months have passed since final determination of their refugee claim, is “prescribed by law” and, therefore, engages

section 1 of the Charter . Canada did have a pressing and substantial objective in effecting the reforms in the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act . The objective of paragraph 112(2) (b.1) was part of the overall objectives of those reforms. However, even if it may have been reasonable to suppose that denying a PRRA to a DCO national for 24 months more than a non-DCO national might further these objectives and be rationally connected to them, it could not be said that paragraph 112(2)(b.1) was minimally impairing.

Any risk of refoulement from the delayed access to a PRRA for DCO nationals is not mitigated by other avenues open to DCO claimants. It was not proven herein that denying a PRRA to a DCO national for 24 months more than a non-DCO national is the least drastic means by which the government could satisfy its objectives. Nor was evidence supplied to prove that paragraph 112(2) (b.1) has any additional deterrent effect. It was not necessary for Parliament to differentiate between DCO and non-DCO claimants when imposing a restriction on when a failed refugee claimant could access a PRRA.

Paragraph 112(2)(b.1) was declared to be inconsistent with subsection 15(1) of the Charter insofar as it concerns DCO nationals under subsection 109.1(1) of the Act ; and the words “or, in the case of a person who is a national of a country that is designated under subsection 109.1(1) , less than 36 months”, in paragraph 112(2) (b.1) were declared to have no force or effect with respect to such

nationals. The respondent’s request that the effect of the declaration be suspended was refused. Rectifying the inequality at issue as soonas possible outweighed any administrative burdens to the government. Questions were certified as to whether paragraph 112(2)(b.1) isinconsistent with subsection 15(1) of the Charter insofar as it pertains to DCO nationals, and if so, whether paragraph 112(2)(b.1) is areasonable limit prescribed by law that can be demonstrably justified under

section 1 of the Charter. STATUTES AND REGULATIONS CITED

An Act respecting Immigration, S.C. 1910, c. 27, s. 38. Balanced Refugee Reform Act, S.C. 2010, c. 8. Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], ss. 1, 7, 15, 24. Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52. Federal Courts Rules, SOR/98-106. Immigration Act (The), S.C. 1906, c. 19, s. 30. Immigration Act, 1976, S.C. 1976-77, c. 52. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(2)(e), 74(d), 96, 97, 99(3.1), 100(4),(4.1), 107(2), 107.1, 109.1,110(2)(d.1), 111.1(1)(a),(2), 112(1),(2),(2.1),(2.2), 161(1)(c),(1.1). Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 159.8, 159.9(1)(a),(b), 160.1, 206, 231(1),(2). Order Establishing Quantitative Thresholds for the Designation of Countries of Origin,

(2012) C. Gaz. I, 3378. Order Respecting the Interim Federal Health Program, 2012, SI/2012-26,

(2012) C. Gaz. II, 1135. Protecting Canada’s Immigration System Act, S.C. 2012, c. 17. Refugee Protection Division Rules, SOR/2012-256, ss. 3(2), 7, 8, 54(1),(4). TREATIES AND OTHER INSTRUMENTS CITED Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004, [2004] O.J. L 588/77. Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting andwithdrawing international protection (recast), [2013] O.J. L 180/60, Art. 39. Protocol No. 24 on Asylum for Nationals of Member States of the European Union.

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 3. CASES CITED APPLIED: Feher v. Canada (Public Safety and Emergency Preparedness), 2016 FC 1259, 277 A.C.W.S. (3d) 812; Borowski v. Canada (AttorneyGeneral), (SCC), [1989] 1 S.C.R. 342, (1989), 57 D.L.R. (4th) 231; Canadian Doctors for Refugee Care v. Canada(Attorney General), 2014 FC 651, [2015] 2 F.C.R. 267; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Quebec(Attorney General) v.

Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R.464; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; R. v. Oakes, (SCC), [1986] 1 S.C.R.103, (1986), 26 D.L.R. (4th) 200, [1986] S.C.J. No. 7 (QL); Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, 428D.L.R. (4th) 451; Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679, (1992), 93 D.L.R. (4th) 1; Lunyamila v. Canada(Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674, 419 D.L.R. (4th) 566. DISTINGUISHED: Y.Z. v.

Canada (Citizenship and Immigration), 2015 FC 892, [2016] 1 F.C.R. 575. CONSIDERED: Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153, affg 2015 FC 774, 483 F.T.R.174, 256 A.C.W.S. (3d) 399; R. v. Mohan, (SCC), [1994] 2 S.C.R. 9, (1994), 114 D.L.R. (4th) 419; R. v. Abbey, 2009ONCA 624, 246 C.C.C. (3d) 301; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182; R. v.Bingley, 2017 SCC 12, [2017] 1 S.C.R. 170; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; Centrale des syndicats du Québec v.

Quebec(Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522; Quebec (Attorney General) v. A., 2013 SCC 5, [2013] 1 S.C.R. 61; Pawar v.Canada, , 169 F.T.R. 152, 67 C.R.R. (2d) 284 (F.C.A.); R. v. Finta (1989), (ON SC), 69 O.R. (2d)557, 44 C.R.R. 23, 61 D.L.R. (4th) 85 (Ont. H.C.J.); RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995]3 S.C.R. 199, (1995), 127 D.L.R. (4th) 1; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Ewert v.Canada, 2018 SCC 30, [2018] 2 S.C.R. 165.

REFERRED TO: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524;Gravel v. Telus Communications Inc., 2011 FCA 14, 218 A.C.W.S. (3d) 478; Mayne Pharma (Canada) Inc. v. Aventis Pharma Inc.,2005 FCA 50, 331 N.R. 337; Armstrong v. Canada (Attorney General), 2005 FC 1013, 412 D.L.R. (4th) 336; Association of Universitiesand Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297; Law v. Canada(Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497, (1999), 170 D.L.R. (4th) 1; Fraser v.

Canada(Attorney General), 2018 FCA 223, 44 C.C.P.B. (2d) 167, 299 A.C.W.S. (3d) 536; Canada (Attorney General) v. Bedford, 2013 SCC 72,[2013] 3 S.C.R. 1101; Corbiere v. Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R. 203,(1999),173 D.L.R. (4th) 1. AUTHORS CITED Beaudoin, Julianna. Challenging Essentialized Representations of Romani Identities in Canada (PhD Thesis, University of WesternOntario, 2014). Canada. Parliament. House of Commons Debates, 10th Parl., 2nd Sess., Vol. 3 (June 13, 1906).

Grant, Angus and Sean Rehaag. “Unappealing: An Assessment of the Limits on Appeal Rights in Canada’s New Refugee DeterminationSystem” (2016), 49 U.B.C. Law Rev. 203. Hogg, Peter W. Constitutional Law of Canada, 5th ed. Vol. 2, loose-leaf. Toronto: Thomson/Carswell, 2007. Levine-Rasky, Cynthia. “Designating Safety, Denying Persecution: Implications for Roma Refugee Claimants in Canada” (2018), 16Journal of Immigrant & Refugee Studies 313. Levine-Rasky, Cynthia. “They didn’t treat me as a Gypsy: Romani Refugees in Toronto” (2016), 32 Refugee 54. Levine-Rasky, Cynthia.

Writing the Roma: Histories, Policies, and Communities in Canada. Halifax: Fernwood Publishing, 2016. Levine-Rasky, Cynthia, Julianna Beaudoin & Paul St Clair. “The exclusion of Roma claimants in Canadian refugee policy” (2013), 48Patterns of Prejudice 67. Machlin, Audrey. “A safe country to emulate? Canada and the European refugee” in Hélène Lambert et al. eds, The Global Reach ofEuropean Refugee Law, New York: Cambridge University Press, 2013. Speaking notes for The Honourable Jason Kenney, P.C., M.P.

Minister of Citizenship, Immigration and Multiculturalism” at a newsconference following the tabling of Bill C-31, Protecting Canada’s Immigration System Act, Ottawa, February 16, 2012. Speaking notes for The Honourable Jason Kenney, P.C., M.P. Minister of Citizenship, Immigration and Multiculturalism, at a newsconference to announce the initial list of Designated Countries of Origin, whose citizens will have their asylum claims expedited forprocessing because they do not normally produce refugees, Ottawa, December 14, 2012.

Rehaag, Sean, Julianna Beaudoin & Jennifer Danch. “No Refuge: Hungarian Romani Refugee Claimants in Canada” (2015), 52Osgoode Hall L.J. 705. APPLICATIONS for judicial review of decisions made by various inland enforcement officers refusing the applicants’ requests fordeferrals of removal. Applications allowed. APPEARANCES Anthony Navaneelan, Benjamin Liston, Andrew Brouwer, Alyssa Manning, Chelsea Peterdy and Amedeo Clivio for applicants. Martin Anderson, Modupe Oluyomi and Laoura Christodoulides for respondents. SOLICITORS OF RECORD Legal Aid Ontario Refugee Law Office, Toronto, for applicants.

Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by Boswell J.: I. Introduction [1] These applications for judicial review involve a constitutional challenge to a part of the Designated Countries of Origin (DCO)regime established under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). This Court has previously determinedthat one aspect of this regime withstands constitutional scrutiny.

Other cases have found that the differential treatment of refugeeclaimants from a DCO is inconsistent with the Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter).

[2] In this case, the applicants challenge paragraph 112(2)(b.1) of the IRPA on the basis that it infringes subsection 15(1) of theCharter. This paragraph precludes a refugee claimant from a DCO from applying for a pre-removal risk assessment (PRRA) before 36months have elapsed from the last determination of their risk before the Refugee Protection Division (RPD) or the Refugee AppealDivision (RAD) of the Immigration and Refugee Board (I.R.B.). [3] In these reasons for judgment, I will first review the procedural history of these five judicial review applications which have beenconsolidated.

From there, I will proceed to provide a general overview of the DCO regime. After that overview, I will identify the issuesraised by these applications, and following that I will address the issue of whether the applications have become moot. [4] The affidavit evidence will then be summarized once the various issues have been identified.

The respondent’s motion to strikecertain affidavits or portions of them from the record will be considered after the evidence has been summarized. [5] The parties’ submissions as to whether paragraph 112(2)(b.1) of the IRPA violates subsection 15(1) of the Charter will beconsidered after dealing with the respondent’s motion. If it is determined that there is a constitutional infringement, it will then benecessary to consider what is an appropriate remedy. Lastly, I will consider whether any questions should be certified pursuant toparagraph 74(

d) of the IRPA. II. Procedural History [6] The individual applicants in this consolidated matter are all citizens of Hungary and are of Roma descent. They each made arefugee claim in 2011, alleging a well-founded fear of persecution in Hungary based on their Roma ethnicity, and in the case of theapplicant Aniko Horvathne Serban, a fear of gender-based violence. The RPD refused each of their claims. [7] After the RPD refused their claims, the Canada Border Services Agency (CBSA) served each individual applicant with aDirection to Report for removal from Canada. A Direction to Report was served on Mr. Sebok and Mr.

Feher more than one year (butless than 36 months) after the RPD refused their claims. Ms. Serban and Ms. Horvath were each served with a Direction to Report lessthan one year after the RPD refused their claims. Ms. Serban failed to appear for her scheduled removal but came to the attention ofCBSA again approximately one and a half years later; she was detained and shortly thereafter served with another Direction to Report.All of the individual applicants requested a deferral of removal. None of their requests for a deferral were granted.

They each filedapplications for leave and for judicial review of the negative decisions made by various inland enforcement officers. But for the 36-month waiting period applied to DCO nationals by virtue of paragraph 112(2)(b.1), Mr. Sebok, Mr. Feher, and Ms. Serban would havehad access to a further risk assessment by way of a PRRA prior to removal. [8] Ferenc Feher made two requests for his removal to be deferred, resulting in two applications for leave and for judicial review(IMM-3855-15 and IMM-3838-15). In August 2015, this Court stayed Mr. Feher’s deportation until the applications were decided.

Thesetwo applications were consolidated in September 2015, with IMM-3855-15 designated as the lead file. Leave for judicial review wasgranted in December 2015. Mr. Feher became eligible for a PRRA on December 31, 2015. [9] In January 2016, Mr. Feher brought a motion to amend his application for judicial review to include a request for a declarationthat paragraph 112(2)(b.1), insofar as it expressly pertains to DCO nationals, be declared to be an unjustified infringement of subsection15(1) of the Charter and of no force and effect pursuant to

section 52 of the Constitution Act, 1982. This amendment was allowed inNovember 2016. [10] Also, in January 2016, the respondent brought a motion in writing to dismiss Mr. Feher’s applications based on mootness sincehe had become eligible for a PRRA. The case management Judge (CMJ or case management Judge) for this matter dismissed the motionin an order dated November 10, 2016 (see: Feher v. Canada (Public Safety and Emergency Preparedness), 2016 FC 1259, 277 A.C.W.S.(3d) 812 (Feher No. 1)).

She determined that, although the applications were moot, it was appropriate under the second stage of the two-step test for mootness in Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, (1989), 57 D.L.R. (4th)231 (Borowski), to exercise her discretion and consider the motion on its merits. [11] The CMJ found, considering the decisions of this Court in Y.Z. v. Canada (Citizenship and Immigration), 2015 FC 892, [2016] 1F.C.R. 575 (Y.Z.) and Canadian Doctors for Refugee Care v.

Canada (Attorney General), 2014 FC 651, [2015] 2 F.C.R. 267 (CanadianDoctors), there was a clear adversarial context between the parties with respect to the constitutionality of the DCO provisions of theIRPA. With respect to judicial economy, she determined in Feher No. 1 [at paragraph 23] that: … it would be perverse to dismiss the current application for judicial review.

This would force the Applicant to pursue his remedy ofdeclaratory relief in an action under subs 17(1) of the Federal Courts Act when such an action, if brought earlier, would have been struckon the basis that the relief could be sought in an application for judicial review. That would not only be an unnecessary use of judicialresources, but would also be punitive to the Applicant. [12] As to whether the Court would be encroaching on the legislative sphere, the CMJ concluded that, but for the finding of mootnessbecause Mr.

Feher was PRRA-eligible, there was “no doubt this judicial review would have proceeded to adjudication. Review ofdecisions that may be unconstitutional is one of the roles of the Court. There is no encroachment on the legislative sphere by allowingthis application to continue” (Feher No. 1, at paragraph 26). The CMJ dismissed the respondent’s mootness motion. [13] Richard Sebok and the Canadian Association of Refugee Lawyers (CARL) filed an application for leave and for judicial reviewin February 2016 (IMM-591-16).

This application also challenged the 36-month PRRA bar on the basis that it infringes subsection 15(1)of the Charter. This Court stayed Mr. Sebok’s deportation on February 10, 2016, until the application was determined. Leave wasgranted in May 2016. The 36-month PRRA waiting period for Mr. Sebok expired on December 19, 2017. [14] Mr. Feher’s applications for judicial review were scheduled to be heard in March 2016, but they were adjourned and ordered toproceed as specially managed proceedings.

As other applicants filed applications questioning the constitutionality of paragraph112(2)(b.1) of the IRPA, namely, Richard Sebok, Erika Horvath (and her son), and Aniko Horvathne Serban, these were assigned to theCMJ who ordered that they be consolidated in an order dated June 4, 2018.

[ 15 ] Erika Horvath and her son filed their application for leave and for judicial review in August 2016 (IMM-3515-16). They requested that their removal from Canada be deferred on the grounds that paragraph 112(2) (b.1) is unconstitutional, there was a pending application for permanent residence on humanitarian and compassionate (H&

C) grounds, and deferral was not in the best interests of the child. After the deferral request was refused, this Court stayed the removal of Ms. Horvath and her son on August 30, 2016, until the application was decided. Leave was granted in December 2016. The 36-month PRRA waiting period for Ms. Horvath and her son would have expired on August 4, 2018, but they were granted permanent residence on H&C grounds in July 2017. [ 16 ] Aniko Horvathne Serban filed her application for leave and for judicial review in April 2017 (IMM-1552-17). Ms.

Serban requested that her removal from Canada be deferred on the ground that paragraph 112(2) (b.1) is unconstitutional. After her deferral request was refused, this Court stayed Ms. Serban’s removal on April 6, 2016, until the application was determined. Leave was granted in June 2017. The PRRA bar for Ms. Serban expired on March 5, 2018. [ 17 ] In November 2017, the respondent filed a motion for an order removing CARL as an applicant in the Sebok application. The CMJ denied the motion to strike CARL as an applicant in an order dated January 31, 2018.

She found that CARL satisfied the three factors for public interest standing set out in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society , 2012 SCC 45 , [2012] 2 S.C.R. 524, at paragraph 37 . In the order, the CMJ described CARL as follows: CARL is an association of lawyers and academics with an interest in legal issues related to refugees, asylum-seekers, and the rights of immigrants. It is a legal advocate on behalf of these groups. It engages in public interest litigation on behalf of vulnerable refugees, asylum-seekers, permanent residents and migrants.

CARL has been accorded status as an intervener or a public interest litigant many times in the trial and appellate courts of Canada. In both Canadian Doctors and YZ , CARL was granted public interest standing as a party in this Court. CARL has also been granted intervenor status a number of times before the Supreme Court of Canada…. [ 18 ] The respondent also filed in November 2017 identical motions in each of the applications for an order striking the affidavits, or portions of them, filed by the applicants. The CMJ, in an order dated February 1, 2018, dismissed the motion to strike.

This order provided that the respondent’s motion to strike could be brought before the applications judge in due course, and that leave was granted for all the existing affidavits filed in the record to remain until such time as the applications judge otherwise determined. III. Overview of the Designated Countries of Origin Regime [ 19 ] When Parliament replaced the Immigration Act, 1976 , S.C. 1976-77, c. 52, with the IRPA, subsection 112(2) introduced a PRRA procedure.

This subsection allowed (with certain exceptions) persons in Canada who were subject to an in-force removal order and who alleged a risk of torture, risk to life, or risk of cruel treatment or punishment if removed, to apply for a PRRA. This subsection contained no time limitations as to when a PRRA application could be made. [ 20 ] The Balanced Refugee Reform Act , S.C. 2010, c. 8 ( BRRA ), added a requirement in paragraph 112(2) (

b) of the IRPA that a person who had made a refugee claim, or who had previously applied for a PRRA, which was rejected, abandoned or withdrawn, was ineligible to apply for a PRRA unless at least 12 months had passed since the rejection, abandonment or withdrawal. [ 21 ] As part of the reforms enacted by the Protecting Canada’s Immigration System Act , S.C. 2012, c. 17 ( PCISA ), Parliament introduced the concept of a DCO. The PCISA replaced paragraph 112(2) (b.1) of the IRPA . This new paragraph became effective on December 15, 2012.

It constitutes an exception to subsection 112(1) , under which a person in Canada may apply for protection if they are subject to an enforceable removal order. [ 22 ] Subsection 112(2) states in relevant part: 112 (1) … Exception

(2) Despite subsection (1), a person may not apply for protection if … (b.1) subject to subsection (2.1), less than 12 months, or, in the case of a person who is a national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since their claim for refugee protection was last rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of

section E or F of

Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division; (

c) subject to subsection (2.1), less than 12 months, or, in the case of a person who is a national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since their last application for protection was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or the Minister. [ 23 ] Teny Dikranian, the Director of Citizenship Legislation and Program Policy in the Citizenship Branch of Immigration, Refugees and Citizenship Canada (IRCC), states in her affidavit that one of the main goals of the DCO regime was to shorten the process for making a refugee claim, to produce either a positive decision granting protection or a negative decision leading to removal.

Other factors also motivated reforms to the refugee system: it was too slow, there were multiple layers of recourse, the number of claims was increasing, and the backlog of unheard claims was growing. [ 24 ] Before the BRRA was passed, it would take about 19 months after a person made a claim for protection for a decision by the RPD and it would take about four and a half years from the initial claim until removal of a failed refugee claimant. According to Ms. Dikranian, Parliament created a separate procedure for refugee claims made by nationals of a DCO to speed up the processing of all refugee claims.

DCO nationals still have access to a PRRA but they must wait longer before they are eligible. Their claims are treated differently under the IRPA and the Immigration and Refugee Protection Regulations , SOR/2002-227 ( Regulations ).

[ 25 ]

Section 109.1 of the IRPA governs how a country is designated. Countries can be triggered for potential designation through either quantitative or qualitative triggers. When this matter was heard, 42 countries had been designated as a DCO. Hungary has been a DCO since the inception of the regime in December 2012. There is no express authority set out in the IRPA for removing a country’s designation, but in November 2014 the Minister approved a process for doing so. This process involves monitoring all DCOs for significant deterioration in country conditions and assessment against various factors.

At the time of the hearing of this matter, no DCO has been removed from the list of DCOs. [ 26 ] The legislative provisions which establish the DCO regime contemplate several unique consequences for claimants from DCOs. I will review these consequences in more detail below; but for the moment, the most significant consequences are summarized in the following chart: DCO Claimants Non-DCO Claimants IRPA and Regulations Eligible for work permit under R206? 180 days after claim referred to RPD Immediately after claim referred to RPD A30(1.1); A32(d); R206(1); R206(2) Time to RPD hearing?

Within 45 days (port of entry); Within 30 days (inland) Within 60 days A100(4.1); A111.1(1)(b); A111.1(2); R159.9(1) Automatic stay of removal until judicial review decided and any appeals exhausted? No Yes, if applying for judicial review of RAD decision, or subsequent appeals to higher courts up to the Supreme Court of Canada R231(1); R231(2) Pre-Removal Risk Application bar? 36 months 12 months A112(2)(b.1); A112(2)(c) [ 27 ] The differential procedures faced by DCO claimants vis-à-vis non-DCO claimants are as follows: 1.

Subsection 206(1) of the Regulations normally allows foreign nationals whose claims are referred to the RPD to obtain a work permit if they cannot support themselves without working and are subject to an unenforceable removal order. However, subsection 206(2) of the Regulations provides that a foreign national from a DCO cannot be issued a work permit unless 180 days have passed since their claim was first referred to the RPD. 2.

Subsection 111.1(2) of the IRPA authorizes the creation of regulations that “provide for time limits [for claimants from DCOs] that are different from the time limits for other claimants” when scheduling a hearing pursuant to subsection 100(4.1) of the IRPA . This has been done by paragraph 159.9(1) (

a) of the Regulations , which provides that an RPD hearing for a DCO claimant must be scheduled within 45 days if he or she requests protection at a port of entry, or within 30 days if he or she asks for protection inland. For claimants from non-DCOs, hearings are expected to be scheduled within 60 days no matter where they make their refugee claim ( Regulations, paragraph 159.9(1) (b)).

Subject to the availability of counsel, a hearing will be scheduled on “the date closest to the last day of the applicable time limit set out in the Regulations , unless the claimant agrees to an earlier date” ( Refugee Protection Division Rules , SOR/2012-256 [repealed by SOR/2012-256, s. 73 ], subsection 3(2) (RPD Rules)). All claimants can apply to change the date of the hearing in exceptional circumstances (RPD Rules, subsections 54(1), 54(4)).

However, since 2017 the RPD no longer strictly enforces the shortened timelines set out in the legislation for adjudicating claims by DCO, employing a “first in, first out” system for adjudicating all refugee claims. 3. Subsection 161(1.1) of the IRPA permits the Chairperson of the I.R.B. to differentiate between DCO and non-DCO claimants when making rules about “the information that may be required and the manner in which, and the time within which, it must be provided with respect to a proceeding before the Board”( IRPA, paragraph 161(1) (c), subsection 161(1.1) ).

To date, it appears that no rules which make such distinctions have been enacted. Every claimant must submit their basis of claim form and other relevant documents as soon as their claim is referred to the RPD if their claim is made inland, or within 15 days if their claim is made at a port of entry ( IRPA, subsections 99(3.1) , 100(4) , paragraph 111.1(1) (a); Regulations,

section 159.8 ; RPD Rules,

section 7). All claimants can also seek extensions of time ( Regulations, subsection 159.8(3) ; RPD Rules,

section 8). 4. Subsection 231(1) of the Regulations grants an automatic stay of removal to refugee claimants who seek judicial review of a RAD decision, but subsection 231(2) prevents DCO claimants from benefiting from such an automatic stay. DCO claimants will not get an automatic stay of removal if they subsequently apply for judicial review. Consequently, unless they can obtain a judicial stay of removal from this Court, DCO claimants may be removed from Canada before their applications for leave and for judicial review are even considered by this Court. 5. Unless certain exemptions are granted, paragraphs 112(2) (b.1) and (

c) of the IRPA bar all refugee claimants from seeking a pre- removal risk assessment until 12 months have passed since their claim for protection was last rejected. DCO claimants, however, must wait 36 months in the same circumstances. [ 28 ] Designation as a DCO also affected the level of government-funded health care that DCO claimants received until the Order Respecting the Interim Federal Health Program, 2012 , SI/2012-26,

(2012) C. Gaz. II, 1135, was invalidated in Canadian Doctors . A DCO claimant was precluded from bringing an appeal to the RAD until paragraph 110(2) (d.1) of the IRPA was declared to be inconsistent with subsection 15(1) of the Charter and had no force and effect in Y.Z. [ 29 ] In Atawnah v. Canada (Public Safety and Emergency Preparedness) , 2016 FCA 144 , [2017] 1 F.C.R. 153 ( Atawnah ), the Federal Court of Appeal determined that the prohibition contained in paragraph 112(2) (b.1) against bringing a PRRA application until 36 months have passed after a claim was abandoned did not violate

section 7 of the Charter .

[ 30 ] It is important to note though, that this Court and the [Federal] Court of Appeal in Atawnah did not examine the time differential between the 12-month and the 36-month PRRA bars. This Court stated in Atawnah v. Canada (Public Safety and Emergency Preparedness) , 2015 FC 774 , 256 A.C.W.S. (3d) 399 [at paragraphs 61–62]: The applicants also say that the 36-month PRRA bar in paragraph 112(2) (b.1) of IRPA is arbitrary. According to the applicants, the rationale behind a 12- or 36-month PRRA bar is that country conditions that have already been assessed are unlikely to change during those timeframes.

If no risk assessment has ever been carried out, however, then the conditions in an individual’s country of origin are likely to be the same on the day after their refugee claim was declared to be abandoned as they will be 12 or 36 months hence. From this is it apparent that what the applicants take issue with is not the length of the PRRA bar, but the fact that there is a bar at all . There is clearly a rational connection between the imposition of a PRRA bar on individuals who have abandoned their refugee claims and the limits that paragraph 112(2) (b.1) of IRPA imposes on the

section 7 rights of the applicants. [Italic in original; emphasis added.] [ 31 ] In this case, the time differential in eligibility for a PRRA is being raised directly. IV. Issues [ 32 ] Before identifying the issues to be addressed, it deserves note that this case is, conceptually, distinguishable from Y.Z. In that case, the DCO claimants were being entirely denied a right to appeal to the RAD, while non-DCO claimants had that right. In this case, the DCO claimants do have a right to apply for a PRRA but their right to do so is delayed and denied for two years longer than non-DCO claimants.

The fundamental question in this case, therefore, is whether this distinction and denial runs afoul of subsection 15(1) of the Charter . [ 33 ] The issues to be addressed are as follows: 1. Are the applications for judicial review moot? 2. Should the impugned affidavits be struck out in whole or in part? 3. What is the standard of review? 4. Is paragraph 112(2)(b.1) of the IRPA , insofar as it pertains to nationals from a DCO, inconsistent with subsection 15(1) of the Charter ? 5. If so, is paragraph 112(2) (b.1) of the IRPA justifiable under

section 1 of the Charter ? 6. If paragraph 112(2)(b.1) of the IRPA is unconstitutional, what is an appropriate remedy? 7. What questions, if any, should be certified? [ 34 ] I turn now to deal with the first issue. V. Are the Applications for Judicial Review Moot? [ 35 ] With the passage of time, each of the individual applicants has now jumped over the 36-month PRRA bar. Mr. Feher was the first on December 31, 2015; Mr. Sebok became eligible on November 4, 2017; Ms. Serban was the last on March 8, 2018 (Ms.

Horvath and her son would have been eligible on August 4, 2018, but they were granted permanent residence based on H&C factors in July 2017). At the time of Feher No. 1 , only Mr. Feher was eligible to apply for a PRRA. [ 36 ] The respondent says all the applications for judicial review are now moot because the factual basis upon which they were brought has disappeared, no adversarial context persists, and the outcomes of the applications will not result in a practical effect on the parties. In the respondent’s view, mootness is not a static issue but is continuously evolving.

The respondent notes that: “the inapplicability of a statute to the party challenging the legislation renders a dispute moot” ( Borowski , at page 355). [ 37 ] The respondent further says I am not bound by Feher No. 1 as facts have changed, in that all individual applicants are now eligible for a PRRA. The respondent urges the Court not to exercise its discretion to decide the case, noting that the record is insular and only deals with a minority in one DCO country when there are numerous DCO countries, and that this weighs against exercising my discretion.

The discretion to decide this matter should not be exercised in this case as it would be better to wait for a genuine adversarial context. [ 38 ] The applicants contend that the respondent’s motion to dismiss the applications based on mootness is futile. CARL has public interest standing and is not subject to the mootness doctrine and its standing is not being opposed. According to the applicants, the Court is bound by Feher No. 1 as it was a final order, and nothing indicates that it was interlocutory.

The applicants say the issue of mootness is res judicata in view of Feher No. 1 . [ 39 ] In the applicants’ view, Borowski supports the Court hearing this matter because it involves an important constitutional issue, there is a fulsome record, and there is a strong public interest in finding not only an answer to the question of whether the three-year PRRA bar violates subsection 15(1) of the Charter , but also in not allowing a potentially unconstitutional provision to persist.

The Supreme Court of Canada stated in Borowski that the doctrine of mootness “applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case” (at page 353). This involves a two-step analysis: “First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic.

Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case” ( Borowski , at page 353).

[ 40 ] Accordingly, in a case where there is “no longer a live controversy or concrete dispute” the case can be determined to be moot ( Borowski , at page 357).

Even if a case may be moot because there is no longer a live controversy or concrete dispute, it is nevertheless necessary for the Court to determine whether it should exercise its discretion to hear and determine the case on the merits where circumstances warrant. [ 41 ] Three overriding principles are to be considered in this second step of a mootness analysis: (1) the presence of an adversarial relationship ( Borowski , at pages 358–359); (2) the need to promote judicial economy ( Borowski , at page 360); and (3) the need for the court to show a measure of awareness of its proper role as the adjudicative branch of government ( Borowski , at page 362).

The Court should consider the extent to which each of these principles may be present in a case, and the application of one or two may be overborne by the absence of the third and vice versa ( Borowski , at page 363). [ 42 ] The Supreme Court in Borowski identified several instances where a court’s discretion may be exercised to allow it to hear and decide a case which might otherwise be moot.

For example, if: (1) there is still the necessary adversarial relationship between the parties even though the live issue or concrete dispute no longer exists (at pages 360–361); (2) the Court’s decision will have practical effect on the rights of the parties (at page 360); (3) the case is one of recurring but brief duration, such that important questions might otherwise evade judicial review (at page 360–361); or (4) where issues of public importance are at stake such that resolution is in the public interest, though the mere presence of a matter of national importance is insufficient (at page 362). [ 43 ] In view of Feher No. 1 , I agree with the applicants that the issue of mootness is res judicata .

Even though the other individual applicants did not become PRRA-eligible until after the date of Feher No. 1 , the same considerations and analysis as that conducted by the CMJ apply to them mutatis mutandis . I will, therefore, exercise my discretion to decide this case on its merits. [ 44 ] This case is one which raises an important constitutional question that might otherwise evade judicial review. As the Supreme Court remarked in Borowski : “an expenditure of judicial resources is considered warranted in cases which although moot are of a recurring nature but brief duration.

In order to ensure that an important question which might independently evade review be heard by the court, the mootness doctrine is not applied strictly” (at page 360). [ 45 ] The evidence in the record shows that most DCO claimants, as well as most non-DCO claimants, are generally removed from Canada within one year from when their refugee claim has been finally determined (cross-examination of Teny Dikranian, questions 62 to 72 and 149 to 152). This means that most failed refugee claimants will never be able to access a PRRA regardless of whether they are or are not a DCO claimant.

It is likely, therefore, (though possible) that the constitutional question raised in this case might otherwise evade judicial review. For this reason, and as there is still an adversarial context, I have determined it is appropriate to determine the matter on its merits. VI. The Affidavit Evidence [ 46 ] The parties have filed numerous affidavits which contain written testimony and dozens of exhibits.

The respondent seeks an order striking all or parts of eight affidavits filed by the applicants on the grounds that they are irrelevant, unnecessary, or contain improper opinion evidence. [ 47 ] Before considering the merits of the respondent’s motion, it is useful to summarize some of the evidence presented by the parties. A. The Applicants’ Affidavit Evidence

(1) Ferenc Feher [ 48 ] Ferenc Feher was born on October 12, 1985 in Pecs, Hungary. He is one of the individual applicants in these applications. He came to Canada in June 2011, seeking refuge from ethnic persecution at the hands of the Hungarian Guard as well as the general public in Hungary. He has filed an affidavit dated September 18, 2015, in support of his applications for leave and for judicial review. [ 49 ] Mr. Feher fears returning to Hungary as violence has increased since he left.

He says the RPD found every other member of his family to be a refugee, and in his view, this is a strong indication that there was a miscarriage of justice in his claim before the RPD. [ 50 ] Mr. Feher’s hearing before the RPD took place in November 2012. In a decision dated December 31, 2012, the RPD rejected his claim, finding him to be not credible. He applied for leave to judicially review the RPD’s decision, but this was denied as was an application for the RPD to reopen his claim due to a lack of procedural fairness. [ 51 ] In early August 2015, Mr. Feher attended a pre-removal interview at CBSA.

He was asked to purchase a non-refundable, one- way ticket to Hungary for travel by August 25, 2015. He was served with a Direction to Report for removal a week before the August 25th deadline. Mr. Feher and his family were deeply agitated by his impending deportation since it was likely they would not be able to see each other again. [ 52 ] When Mr.

Feher met with his legal counsel to discuss his concerns about returning to Hungary, he learned that, while almost all unsuccessful refugee claimants have a right to a further risk assessment prior to removal where more than 12 months have elapsed since the I.R.B. last refused the claim, he did not have access to this assessment because he was from a DCO. He says he has seen news articles about the PRRA bar for DCO nationals which state that their refugee claims were bogus, and they were only looking to exploit Canada’s social services.

Many of those articles refer directly to Hungarian Roma, and he felt degraded by this rhetoric. [ 53 ] Mr. Feher submitted a deferral request to CBSA on August 18, 2015, with additional documentation sent on the 19th and on the 20th. On August 20, an inland enforcement officer denied the request; later that day, unsure of whether the officer had considered all of the submissions (including those sent earlier in the day), Mr. Feher requested that the negative deferral request be reconsidered. The next day, Mr.

Feher filed an application for leave and for judicial review in respect of the denial as well as a motion to stay his removal to Hungary. Later that day, the reconsideration request was denied. Three days later, Mr. Feher filed another application for leave and for

judicial review in respect of the refusal to reconsider his deferral request. This Court stayed Mr. Feher’s removal from Canada on August 25, 2015. [ 54 ] Mr. Feher says the pressure and stress of not knowing whether he would be deported was terrible, and he had to say goodbye to all his friends and family and put his affairs in order in Canada. Although these goodbyes proved unnecessary, Mr. Feher states that it was a very expensive process and physically and emotionally exhausting for him.

(2) Richard Sebok [ 55 ] Richard Sebok was born on January 5, 1988, in Nyiregyhaza, Hungary. He fled Hungary in April 2011 and shortly thereafter made a claim for refugee protection in Canada. He details the racism and violence he experienced because he was Roma; and although his uncle and other extended family members have been accepted as refugees in Canada, the RPD found him not to be a Convention refugee in December 2014. After the RPD rejected his claim, he stayed in Canada because he feared returning to Hungry. [ 56 ] Mr. Sebok says he has had difficulty living without status and without a job.

In June 2015, he was required to attend at CBSA, which he did, and was told he would have to return the next month. A warrant was issued for his arrest in July 2015 after he failed to appear for a pre-removal interview. On November 10, 2015, he was placed in immigration detention in a maximum-security prison. He says his time in prison was the worst time in his life. He was scared to be in a jail with men who had committed dangerous crimes and he cried a lot. [ 57 ] Mr. Sebok received notice on January 27, 2016, that he would be deported back to Hungary on February 10, 2016.

He describes this period as a very difficult time when he would get so anxious, he felt like he had to throw up. CBSA denied his request to defer his removal on February 9, 2016. This Court stayed Mr. Sebok’s removal from Canada on February 10, 2016, and he was subsequently released from immigration detention. [ 58 ] Mr. Sebok reports monthly to CBSA, and he says every time he reports he feels a knot tightening in his stomach as he is not aware what is going to happen.

He says when he learned about how he was not eligible for a PRRA until three years had passed from the time when the RPD refused his claim, while others were eligible after one year, he felt discriminated against because he was Roma.

(3) Aniko Horvathne Serban [ 59 ] Ms. Serban was born on December 17, 1965, in Szombathely, Hungary. She left Hungary due to an abusive relationship. She says she was unable to receive state protection as Hungary does not take domestic violence seriously and she is Roma. She arrived in Canada in May 2011 and made a refugee claim which the RPD rejected in March 2015. [ 60 ] Ms. Serban was first scheduled to be removed in June 2015. Fearing return to Hungary and believing nothing could be done, she did not appear for her removal and remained without status in Canada.

CBSA issued a warrant for her arrest due to her failure to appear for removal, and in March 2017 CBSA arrested her and placed her in immigration detention. Because she was from Hungary, a country which is on the DCO list, she was unable to apply for a PRRA because 36 months had not elapsed since the date when the RPD rejected her claim. [ 61 ] She was notified on March 27, 2017, that she would be removed four days later, but CBSA cancelled the removal and rescheduled it for April 10, 2017. During this time, Ms.

Serban says she was living in total fear: she cried a lot; lost her appetite; began having suicidal thoughts; and had flashbacks about the abuse she suffered from her ex-husband. She would frequently call her lawyer and beg and plead to avoid return to Hungary. Her lawyer explained to her that it was difficult to gather all the necessary information and evidence in such a short amount of time, and that nothing could be guaranteed. [ 62 ] On April 6, 2017, Ms. Serban’s lawyer informed her that this Court had granted a stay of her removal.

She describes how she was relieved and, although she was still being detained, she no longer felt despair. On June 26, 2017, she was released from immigration detention.

(4) Erika Horvath [ 63 ] Erika Horvath is another individual applicant in this case. She was born in Budapest, Hungary on June 21, 1988, and is of Roma ethnicity. She has an 11-year-old son, Ferenc Tibor Sallai, who was also born in Budapest. [ 64 ] Ms. Horvath and her son entered Canada in October 2011. They made a claim for refugee protection about a month after their arrival. In a decision dated August 4, 2015, the RPD found that she and her son were neither Convention refugees nor persons in need of protection. Nearly a year after the RPD’s decision, Ms.

Horvath learned she was going to be removed from Canada. Her lawyer filed a request to defer the removal on August 15, 2016. On the same day she filed an application for permanent residence on H&C grounds. [ 65 ] CBSA denied Ms. Horvath’s deferral request on August 18, 2016. One day before her scheduled removal, this Court ordered that her removal be stayed. She describes this period in her life as being very stressful. During this period her son was very sad and was deeply concerned about leaving his father in Canada. [ 66 ] Ms.

Horvath informed the Court in July 2017 through an affidavit, that she had been granted permanent residence based on humanitarian and compassionate grounds in July 2017.

(5) Christopher Anderson [ 67 ] Christopher Anderson is an Assistant Professor in the Department of Political Science at Wilfrid Laurier University. He has a lengthy research history in the area of Canadian immigration and refugee policy. His affidavit focuses on identifying historical trends animating Canada’s immigration and refugee policy.

[ 68 ] In his view, Canada’s desire to attract some immigrants has always been accompanied by a determination to exclude others, and negative stereotypes often inform which groups are excluded (including refugees and asylum-seekers). At times, this was based on explicit racial discrimination, such as the head tax on Chinese immigrants. Though less explicit, Canada has discriminated against other groups as well, such as Japanese and East Indian immigrants. This was not always done through legislation, and Mr.

Anderson says the trend has been to assign extensive regulatory powers to the executive, thus making immigration law less subject to parliamentary and public scrutiny. [ 69 ] When Parliament passed The Immigration Act , S.C. 1906, c. 19, it did so to provide that the Minister could, “by proclamation or order, whenever he considers it necessary or expedient, prohibit the landing in Canada of any specified class of immigrants” (at

section 30). The Minister at the time admitted that this was “very drastic but the reason of its insertion is that there has been an immigration of gypsies lately and it is thought that such people are not desirable under any circumstances although they are physically and mentally fit, and that it would be quite proper to take power to say: You cannot come in” (Canada. Parliament. House of Commons Debates , 10th Parl., 2nd Sess., Vol. 3 (June 13, 1906), at pages 5252–5253).

With the passage of The Immigration Act , S.C. 1910, c. 27, the federal cabinet was granted authority to “prohibit for a stated period, or permanently, the landing in Canada, or the landing at any specified port of entry in Canada, of immigrants belonging to any race deemed unsuited to the climate or requirements of Canada, or of immigrants of any specified class, occupation or character” (at

section 38). [ 70 ] After the Holocaust, it became harder for Canada to defend explicitly racist policies, but Professor Anderson says Canada simply masked the debate over race within discourse that, while rarely mentioning which groups would be restricted, ensured that some would be. Canada kept discriminating by vesting wide discretion in officials to establish geographical tiers of preferred immigrants.

Professor Anderson says the last vestiges of formal discrimination were only removed in 1967 and Canada eventually made a formal commitment to equality when it enacted the Immigration Act, 1976 , S.C. 1976-77, c. 52. [ 71 ] As explicit racial discrimination diminished though, Professor Anderson says that security and abuse concerns arising from the Cold War created barriers for refugees fleeing right-wing political oppression.

According to Professor Anderson, these concerns continue to inform refugee policy today, from the imposition of visa requirements, to the way the government handles irregular arrivals, and to the creation of the DCO system. He states that visa provisions, the DCO regime, and other restrictive immigration provisions have a negative effect; for example, on the ability of Roma refugee claimants to seek protection in Canada.

(6) Sean Rehaag [ 72 ] Professor Sean Rehaag has a doctorate in law focusing on refugee law. He is an Associate Professor at Osgoode Hall Law School who specializes in immigration and refugee law and its intersection with gender and sexuality. His affidavit dated July 14, 2017, contains his affidavit which was filed in Y.Z. , where he attacks the use of the quantitative trigger permitting designation of a country as a DCO.

His affidavit also contains two 2016 law journal articles, one he co-authored with Julianna Beaudoin and Jennifer Danch, entitled “No Refuge: Hungarian Romani Refugee Claimants in Canada” [(2015), 52 Osgoode Hall L.J. 705] and another he co-authored with Angus Gavin Grant, entitled “Unappealing: An Assessment of the Limits on Appeal Rights in Canada’s New Refugee Determination System” [(2016), 49 U.B.C.

Law Rev. 203]. [ 73 ] Professor Rehaag states that statistics on outcomes in refugee determinations from a given country can vary substantially over time, due to changing country condition evidence and random factors. He points out that some countries which meet the quantitative criteria for designating a country in one year can have high recognition rates in subsequent years.

According to Professor Rehaag, these problems are compounded by including abandoned and withdrawn claims when calculating the rejection rate, because it can give the impression that claimants from a country are often being rejected when it may just be that the I.R.B. has not scheduled many claims to be heard on their merits. [ 74 ] A second problem Professor Rehaag identifies is that a country may be safe for many claimants but unsafe for subsets of claimants.

He specifically points to claims based on gender and sexual orientation, which he says are more likely to succeed than other types of claims from the same country of origin and often come from countries that typically do not produce many refugees. [ 75 ] According to Professor Rehaag, I.R.B. data cannot be counted on to reliably record demographic information because that is not its purpose. He says it may not properly account for claimants who are nationals of multiple countries or who are determined by the RPD to be from countries other than the one they claimed.

(7) Audrey Macklin [ 76 ] Audrey Macklin is a law professor and chair in human rights law at the University of Toronto. Since January 2017 she is also Director of the Centre for Criminology and Sociolegal Studies at the University of Toronto. From 1991 to 2009 she was a member of the Immigration and Refugee Board of Canada. She wrote a

chapter in Hélène Lambert et al., eds., The Global Reach of European Refugee Law (New York: Cambridge University Press, 2013). This

chapter entitled “A safe country to emulate? Canada and the European refugee” is an exhibit to her affidavit and discusses the introduction of designated or safe countries of origin. Her thesis is that adoption of the DCO regime was at least partially motivated by a desire to keep Roma claimants out of Canada without irritating the European Union [EU] by imposing visa requirements, since the Canadian government needed the co-operation of each member state in order to facilitate the Canada-EU comprehensive trade agreement. [ 77 ] Professor Macklin explains how countries are designated.

She describes the DCO designation practice allows for a feedback loop (she uses the term endogenous, meaning that it originates from within the refugee determination system itself), where statistical anomalies in one year can place a country on the list, with no measures to reconsider even in the outbreak of a civil war. [ 78 ] She also discusses the myth that Hungarian Roma, indeed any EU citizen, can seek protection in another EU country.

The Aznar Protocol [Protocol No. 24 on Asylum for Nationals of Member States of the European Union] renders citizens of EU member states ineligible for asylum in another EU member state. Although EU citizens have mobility rights, different mechanisms have been used to limit the Roma’s mobility within the EU. Professor Macklin says there is a misunderstanding that the EU acts as a “United States of Europe” (where each member state is a sub-federal unit of the greater whole), when the legal reality is that each member state is its own

country.

(8) Aadil Mangalji [ 79 ] Aadil Mangalji is a founding partner of Long Mangalji LLP, a law firm which focuses exclusively on refugee and immigration law. He has been certified by the Law Society of Upper Canada as a Specialist in Citizenship and Immigration Law as well as a Specialist in Refugee Protection Law. He describes the legislation grounding the PRRA process, the disadvantages PRRA-ineligible individuals from DCOs face, and his experiences as a lawyer assisting various clients who have access to a PRRA and those who do not. [ 80 ] According to Mr.

Mangalji, PRRA-ineligible individuals are often unaware of the existence of the deferral request process or the eligibility to submit a deferral request, and CBSA’s website does not provide this information. Mr. Mangalji says that, while most PRRA applicants are lawfully entitled to 30 days to prepare and submit a PRRA application and typically benefit from months in which to do so, deferral request applicants are entitled to no lawful minimal period in which to prepare and submit a deferral request and typically only have weeks or sometimes even days in which to do so.

Based on his experience, the short time periods as well as the absence of a statutory stay create additional monetary obligations and stresses that can seriously impede the ability of deferral request applicants to dedicate the time and resources needed to submit a thorough deferral request. [ 81 ] Mr. Mangalji notes that CBSA has published no procedures for when an oral hearing should be convoked in the context of a deferral request and what procedures are to be followed.

To his knowledge, no deferral request applicant has been granted an oral hearing by a CBSA officer who subsequently denied the deferral request. He states that applicants who receive a positive deferral request decision do not receive refugee protection, nor are they eligible for permanent residence. Just as there are no statutory or regulatory criteria for when a deferral request should be granted, there are no criteria for when a granted deferral should be revisited or revoked.

(9) Lisa Andermann [ 82 ] Lisa Andermann is a psychiatrist and Associate Professor of Psychiatry in the Division of Equity, Gender and Populations, Department of Psychiatry at University of Toronto. She is attached to the Psychological Trauma Clinic at Mount Sinai Hospital and New Beginnings Clinic at the Centre for Addiction and Mental Health serving newcomers and refugees, and a consultant psychiatrist at the Canadian Centre for Victims of Torture.

She has been working in the area of psychological trauma and cultural psychiatry since 2001. [ 83 ] She was asked to answer the question of “what, if any, are the likely psychological/psychiatric effects of uncertainty in terms of procedure and/or timelines for refugee claimants and refused refugee claimants?” Her affidavit focuses on how the uncertainty and delays in the refugee process increase mental health issues for refugees. [ 84 ] She speaks to how the mental health of refugee claimants is adversely affected by uncertainty of process and unknown procedural timelines in both the adjudication and post-adjudication process.

In particular, the uncertainty prevents treatment of post- traumatic stress disorder since the first stage of many treatment procedures is “Safety and Stabilization”, which involves removing risk of further trauma and treating concurrent symptoms. She states: “inordinate delays in the refugee adjudication process and heightened uncertainty regarding post-determination timelines and processes prolong the period of uncertainty and lack of safety. During this time, trauma-related symptoms of mental disorder or distress are unlikely to improve and may indeed deteriorate further.”

(10) Julianna Beaudoin [ 85 ] Julianna Beaudoin has a PhD in Anthropology and completed her dissertation, entitled Challenging Essentialized Representations of Romani Identities in Canada [University of Western Ontario, 2014], on Roma in Canada and the various issues they face. She says Roma people are often portrayed and treated negatively, and that Canadians lack accurate information about the Roma.

Because there is so little exposure to Roma, she opines that it is problematic when government officials say that Roma individuals make bogus claims or are undeserving of refugee protection. [ 86 ] In her affidavit she opines that the DCO regime should not count abandoned or withdrawn claims as failures, since this ignores the rate at which claims are accepted. In particular, she says there may be many reasons why a claim might be withdrawn or abandoned that are unrelated to whether a person would face persecution in their country of origin.

She says she interviewed many Romani newcomers for her dissertation, and that some of the reasons claimants abandoned their claims include: their representatives either defrauded them or were incompetent; some claimants do not understand that they cannot return home for any reason or mistakenly believe they can restart their claim later; some claimants often need to change addresses and do not realize how important it is to inform the I.R.B., causing them to miss deadlines; some claimants suffer from mental disabilities that make it difficult; and some grew discouraged when they heard the former Minister of Citizenship and Immigration, Jason Kenney, say their claims were “bogus”. [ 87 ] Her dissertation is attached as an exhibit to her affidavit as well as two articles: “The exclusion of Roma claimants in Canadian refugee policy” [(2013), 48 Patterns of Prejudice 67] and “No Refuge: Hungarian Romani Refugee Claimants in Canada” A fourth exhibit is a compilation of excerpts from articles detailing comments and views on Romani refugee claimants made by Government of Canada officials. (

a) Thesis [ 88 ] Julianna Beaudoin’s thesis examines how Romani identity processes can emerge and be instrumentalized to struggle against discrimination, essentialized stereotypes, and exclusionary policies and attitudes. [ 89 ]

Section 3.1 of her thesis describes how genealogy and linguistic analysis has been used to trace Romani historical origins in northwest India. Ms. Beaudoin also discusses how Roma have experienced numerous injustices throughout their history, including enslavement, forced sterilization, expulsions, special “hunts” and permissions to kill on sight, legalized rape and murders, segregated communities and schools, property theft, linguistic restrictions, forced adoptions, and outright genocide. This persecution continues to present day educational segregation, forced sterilization, state sanctioned police brutality, and ghettoization of the Roma. In a later

section, she describes how Roma compared the current rise in Hungary’s Jobbik party to Hitler’s rise in popularity. Roma come to Canada from various countries including England, Hungary, and the Czech Republic. [ 90 ] According to Ms. Beaudoin, Roma may have been living in Canada as far back as the 1500s to 1700s. Roma were in Canada by the 1800s. By the end of 1957, more than 37 000 Hungarians had been accepted into Canada. In 1996, large numbers of Czech Romani refugees began to apply for refugee status in Canada, soon followed in the late 1990s and early 2000s by Hungarians.

Although Canada does not release the ethnic background of refugee claimants, only their nationality, it is estimated that Roma from these two countries made most of the claims between 1996 and 2008. [ 91 ] In the fourth

chapter of her thesis Ms. Beaudoin reviews the media landscape of Canadian coverage of the Roma. Much of this

chapter and subsequent chapters discuss the themes of how Romani refugee claimants are bogus claimants and queue jumping “Gypsies”. According to Ms. Beaudoin, these ideas are played out through conceptions and structures in our immigration system, and the erroneous belief that inland refugee claimants are queue-jumpers is a view perpetuated by government officials who describe rejected, abandoned, and withdrawn refugee claims as fraudulent cases. [ 92 ] Ms.

Beaudoin reports that individuals have been contacted after reporting sympathetic stories about the Roma by various officials including then Minister of Citizenship and Immigration, Jason Kenney, and that the government attempts to control the narrative and public information through intimidation. She says the media also plays its part though, since fear sells, and the media is quick to spread news on criminality, especially about Roma. [ 93 ] In a sample of 235 news articles from 2012 which specifically referenced the terms “Roma” and “Gypsy”, Ms. Beaudoin found 95 articles also included the term “bogus”.

Almost half of the articles also referenced European countries in some way as “safe”. Like these bogus articles, there were some critical discussions of the DCO list describing the EU as wholly safe and as a non-refugee producing area. Only 12 headlines explicitly drew attention to issues like intolerance or hatred, persecution, or other harsh conditions the Roma face, while 15 story headlines specifically addressed various day-to-day issues the Roma face in Canada. [ 94 ] Ms. Beaudoin describes how Romani have tried to advocate in Canada.

One of the focuses has been on improving educational opportunities, but the faster turnaround for deportations means that some programs which are created cannot be fully utilized. In response to the fear of deportation, Ms. Beaudoin describes how some Roma leave fearing they will be denied and deported and are leaving Canada and heading to other countries before they have a chance to make their case before the I.R.B. [ 95 ] Ms. Beaudoin also discusses how statistics were used to create the DCO list, and how these statistics could be used or explained in different ways to create different outcomes.

Factors such as the ability to afford a lawyer or the translator used in a hearing may not be captured in statistics, and these factors have a great impact on a claimant’s success in receiving protection but are seldom measured. (

b) No Refuge: Hungarian Romani Refugee Claimants in Canada [ 96 ] This paper authored by Sean Rehaag, Julianna Beaudoin, and Jennifer Danch consists of a qualitative and quantitative study of Hungarian Romani refugee claims to address what the authors call an evidentiary vacuum in assessing the 2012 changes effected by the PCISA . The

article explores the experiences of Hungarian Roma within Canada’s refugee determination system between 2008 and 2012. It concludes by focusing on findings from the study, including the impact of anti-refugee rhetoric, institutional bias, inconsistent decision-making, and problems related to quality of counsel. [ 97 ] The first part of this paper covers topics such as the history of persecution of the Roma, and the Canadian legal landscape and immigration policies towards the Roma. The second part analyses how Hungarian refugee claimants were treated from 2008 to 2012.

One conclusion in the paper is that, while it is incorrect to make blanket statements about Hungarian claims being bogus, it is fair to say that, in a large majority of Hungarian refugee claims finalized between 2008 and 2012, the claimants did not obtain refugee protection. [ 98 ] The paper also examines different reasons why claimants were found not to be refugees, such as the availability of state protection, discrimination versus persecution, and general negative credibility findings. It looks at the abandoned and withdrawal rates of

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