Canada's Progressive Supreme Court

"First, the onus in detention review under the IRPA [Immigration and Refugee Protection Act] is less advantageous to detainees than in habeas corpus proceedings."
"Second, the scope of review before the Federal Courts is narrower than that of a provincial superior court's consideration of a habeas corpus application."
Justice Andromache Karakatsanis, Supreme Court of Canada

"In the absence of evidence that the 'complete, comprehensive and expert statutory scheme' does not provide for a review at least as broad and no less advantageous than habeas corpus, I see no reason to disturb the Court's jurisprudence by opening an alternative route, one that will lead to the forum shopping, inconsistent decision making, and multiplicity of proceedings."
Justice Rosalie Abella, dissenter

The Supreme Court of Canada ruling Friday opened wider appeal options for immigration detainees facing lengthy incarceration.  (Sean Kilpatrick / THE CANADIAN PRESS)

"This decision vindicates immigration detainees who have been denied their liberty for years on end with no meaningful way to challenge that injustice and regain their freedom."
"They can now seek justice in superior courts and have their charter rights protected and enforced."
Alex Neve, secretary general, Amnesty International Canada

Tusif Ur Reman Chhina, a native of Pakistan, was granted refugee protection in 2006 in Canada. He was detained at a later date when authorities became aware that he had a criminal record had made misrepresentations on his application, and had fled custody. He made no fewer than a dozen attempts to persuade the Immigration and Review Board to release him from custody, all of which failed. He was eventually deported from Canada back to his country of origin, after three previously failed attempts at deportation.

Before his final deportation, while he was housed in an Alberta maximum-security facility, he had made application for habeas corpus in May of 2015, his application filed after the revocation of his refugee status in April 2013. He was placed in immigration detention because he was considered a danger to the public, along with the fact that based on previous experience with this man, it was unlikely that he would voluntarily appear for his removal from Canada.

Released six months later from custody as a reflection of delays to his removal, he disappeared. When he was found, again he was re-arrested in November of 2015. In late 2017 he was finally deported. Now, the Supreme Court of Canada, ruled in a majority decision that he had been deprived of his right to challenge his detention, before a judge. This ruling will be a boon to refugee lawyers making wider appeal options available to failed refugee claimants.

At the present time, failed refugee claimants may under Canadian law appeal decisions made by the Refugee Board. It can, and most often does, take years before all appeal options have been exhausted and where sometimes the conclusion is successful for the claimant, sometimes it fails. But it does result in Canadian courts, already backlogged with all manner of legal cases, further clogged with such appeals that give failed claimants the right to appeal decisions not in their favour.

The ancient legal recourse to judgement called habeas corpus -- the right to have the validity of a detention reviewed for its lawfulness -- was upheld in this case by the Supreme Court Justices, with one dissension, and that decision will stand now to guide other similar refugee cases. People held in custody by the government have a right under the Canadian Charter of Rights and Freedoms to appear before a justice in a provincial superior court so they may argue whether their detention is justified.

The system under which Tusif Ur Rehman Chhina was held -- clearly set out in the Immigration and Refugee Protection Act -- offers a comprehensive and expert process by an independent, quasi- judicial board to provide a meaningful review. It relates to the fact that decisions by the Immigration and Refugee Board can be challenged to the Federal Court. Canadian law bends over backwards to give the benefit of the doubt to haven seekers, to refugee claimants, to immigrants who often withhold information critical to decision-making on their applications.

Under Canada's generous social welfare system asylum seekers and refugee claimants are assured of their most basic needs looked after; housing, medical care, education. Welfare cheques are sent out regularly to individuals and families, many of whom because of a backlog in assessing claims are able to live for years in Canada on welfare, and do so happily.

When refugee claims are refused, many claimants rather than voluntarily submit to extradition will simply go underground to work illegally and remain in the country, undocumented. Canada's lax system of regulations enforcing its own guidelines on immigration and refugee claims encourages economic migrants to enter Canada illegally, specifically to claim refugee status even if they are from a country that Canada considers 'safe', and to take advantage of the social welfare system.

In Ontario alone, overpayments and illegal payments to failed refugee claimants constitute a huge fraud perpetrated on the social welfare system. The province's auditor general recently raised concerns over hundreds of 'profiles' relating to their immigration status inclusive of refugee claimants receiving welfare cheques regularly long past the time they should have been deported or reclassified as permanent residents who should be out in the workforce. 

Refugee families with four children can obtain about $50,000 a year in various taxpayer-funded social-service benefits. The Canada Child Benefit provides $6,400 a year for each child under six years of age, and $5,400 for children between the ages of six and 17, while provincial welfare programs can provide $7,000 to $12,000 a year for each adult.

Claisiane Delanet, who is nine months pregnant helps her 3-year-old son Davi zipper up his coat as she picks him up from daycare in Montreal. The family is originally from Haiti and sought asylum in Brazil. After being robbed at gunpoint in Brazil they walked and took buses to Canada over a span of four months. (Chris Donovan)