Proposed class-action lawsuit claims Ottawa discriminated against refugee claimants with safe country rules

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The federal government knowingly discriminated against tens of thousands of refugee claimants over the course of several years, according to a lawsuit filed on behalf of former asylum seekers in Canada.

The proposed class-action suit filed last week by two refugees, Piotr Kaczor and Aniko Serban, centres around the “designated country of origin” policy used by Immigration, Refugees and Citizenship Canada between 2010 and 2019. The policy, which was created by the Harper government to deter abuse of the system, made the refugee application process especially challenging for asylum claimants coming from countries that the Canadian government had predetermined as “safe.”

The program “served to further marginalize, prejudice, and stereotype refugee claimants based on their country of origin,” the statement of claim filed on Friday says.

“It perpetuated the negative stereotype that refugee claimants from DCO countries were somehow ‘queue-jumpers’ and ‘bogus’ refugees who only came to Canada to take advantage of its refugee system and its generosity.”

Under the program, asylum claimants coming from any of the 42 countries deemed as safe – countries including the United States, Australia and France – had an expedited application process, which resulted in applicants having less time to prepare their case.

“It was this false presumption that most of these claims were unfounded, so therefore, let’s get them in and let’s get them out as quickly as possible,” said Jared Will, co-counsel for the plaintiff. Joining Mr. Will as co-counsels are Subodh Bharati, Ashley Fisch and Louis Century.

Applicants from “safe” countries also faced additional challenges not faced by other refugee claimants. For instance, they were denied access to health care, and barred from obtaining work permits for the first 180 days. After a decision was made in their case, they were barred from making an appeal. And while other refugee claimants facing deportation could apply for a new assessment after one year, these applicants had to wait for three.

In 2019, then-immigration minister Ahmed Hussen removed all 42 countries from the list, effectively ending the practice.

A spokesperson for Immigration, Refugees and Citizenship Canada declined to comment. The proposed lawsuit has not yet been certified as a class action, and its allegations have not yet been tested in court.

One of the plaintiffs, Mr. Kaczor, first arrived in Canada from Poland in January, 2018. He applied for refugee status on the basis of sexual orientation, citing extensive abuse and harassment he’d experienced as a gay man in Poland.

Because Poland was on Canada’s “safe” list, he was denied access to a work permit while awaiting the outcome of his application. So he lived in a shelter during that time, which further exacerbated the traumas he’d experienced in Poland.

His claim for refugee protection was approved in August of 2018, and Mr. Kaczor is now a Canadian citizen.

By the time the government stopped implementing the list in 2019, legal challenges from refugee advocates had already struck down key aspects of the policy. In 2014, the Federal Court ruled that denying health care to applicants was unconstitutional. The next year, the Federal Court ruled that denying applicants the right to appeal was also a violation of the Charter.

After the Liberals were elected to government in 2015, then-immigration minister John McCallum publicly acknowledged Charter concerns surrounding the program. Still, the government continued to implement remaining aspects of the policy – including the work permit ban – until 2019.

“For years, the government knew the policy was discriminatory. But they maintained the designations – and they maintained the rather dramatic consequences of the designations – for the next five years,” Mr. Will said.

The class-action suit asks for $100-million on behalf of the estimated 20,000 refugee applicants who were subjected to the policies between 2014 and 2019.

The purpose of the lawsuit “is making sure there are no further future effects of this regime,” Mr. Will said.

“And also seeking justice for people who were discriminated against in the past.”