JOHN DOE ET. AL. V. CANADA (INTER-AMERICAN COMMISSION ON HUMAN RIGHTS)
WHAT IS THIS PETITION ABOUT?
Beginning on 27 January 2003, Canadian immigration authorities implemented a new procedure whereby they return refugee claimants at the United States-Canada border to the United States without seeking assurances that these claimants would be permitted to return to Canada for hearings. As a result, refugee claimants, including the named victims, were detained in the United States for many months, often in violation of international legal standards. While in detention in the United States, claimants missed their appointments for their refugee status interviews with Citizenship and Immigration Canada, lost control of evidentiary documents, and were separated from family members. In several known cases, the United States deported refugee claimants who were entitled to seek asylum in Canada to the countries from which they had fled persecution.
Because of the serious human rights implications of Canada’s “direct back” policy, on 31 March 2004, Amnesty International, together with the Canadian Council for Refugees, Vermont Refugee Assistance, Freedom House, Global Justice Center, Harvard Immigration and Refugee Clinic, and Harvard Law School Advocates for Human Rights jointly filed a petition against Canada before the Inter-American Commission on Human Rights on behalf of three individuals who had fallen and and others who may fall victim to the “direct back” policy, for violation of their fundamental rights to seek asylum in Canada.
On 29 December 2004, the governments of Canada and the United States of America also implemented the Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries – also known as the Safe Third Country Agreement (STCA). The STCA prevents refugees from seeking safe haven in Canada if they are seeking to enter from the United States at a land border, and vice versa. The agreement provides that refugees must make a claim for protection in the country – Canada or USA – that they enter first. Claims made at the Canada-USA land border are summarily rejected unless the claimant satisfied one of a number of specified exceptions. Amnesty International and a number of other Canadian human rights organizations challenged the constitutionality of the STCA before the Federal Court of Canada. To read more about our legal challenge, click here.
AMNESTY INTERNATIONAL’S PETITION
In our joint petition, Amnesty International and the other petitioners argued that Canada’s “direct back” policy violates the rights of individuals to seek asylum and to be protected from refoulement under the American Declaration of the Rights and Duties of Man and the Convention Relating to the Status of Refugees. Further, by failing to provide any administrative or judicial measures to appeal Canada’s decision to send them to the United States, we argued that Canada also violates refugee claimants’ right to a fair trial. In light of these violations, we requested that the Commission:
- Initiate formal proceedings against Canada;
- Immediately issue precautionary measures seeking the suspension of the direct back policy;
- Find that Canada’s refusal to grant hearings to asylum applicants after the direct back policy came into effect constitutes a violation of Articles XXVII and XVIII of the American Declaration and Article 33 of the Refugee Convention; and
- Order Canada to revise its refugee and asylum policies in accordance with its international obligations under the American Declaration, the Refugee Convention, and general principles of international law.
STATUS OF THE PETITION
The Inter-American Commission issued its final report (No. 78/11) on 21 July 2011. The Commission ruled that Canada violated it human rights obligations when it returned three refugee claimants to the United States without first providing individualized reviews of their asylum claims. In its decision, the Commission clarified the obligations that governments must fulfil with regard to refugees arriving from a third country such as the United States: “before removing a refugee claimant to a third country, [a country] must conduct an individualized assessment of a refugee claimant’s case, taking into account all the known facts of the claim in light of the third country’s refugee laws.”
While the decision did not directly address the application of the STCA, it validates that in rejecting refugee claimants and returning them to the United States under the STCA without an individualized assessment, Canada is in violation of its international human rights obligations under the American Declaration and the Refugee Convention.
Inter-American Commission on Human Rights Decision on the STCA case