kanthasamy and the 30th anniversary of the supreme court's singh decision

On April 4, 1985, the Supreme Court of Canada handed down its landmark decision in the case of Singh v. Minister of Employment and Immigration [1985] 1 SCR 177. This case recognized a duty of fairness owed to refugee claimants in Canada in determining their refugee claims. To celebrate the 30th Anniversary of this internationally renowned decision, our immigration lawyer Jennifer Stone recently spoke at an event on behalf of the Canadian Council for Refugees. The following are Jennie's speaking notes from the event, discussing the continuing importance of the Singh case in light of her refugee-protection work in Hong Kong, as well as her work on the upcoming appeal in Kanthsamy v. Minister of Citizenship and Immigration. The case will be heard by the Supreme Court on Thursday, April 16. Jennie will appear before the Supreme Court as co-counsel for the Canadian Council for Refugees, an intervener in the case. The case calls upon the Supreme Court to clarify the scope of humanitarian and compassionate grounds and considerations in the immigration context.

Refugee Rights Day 2015

• The now 30-year old Supreme Court of Canada decision in Singh was a real high water mark. Our highest court said that the constitution required that refugees be given a “fair shake”. This is something to really be proud of. Our highest court said that people who claim to face persecution – grave abuses of their fundamental rights – will have their claims heard in a fair manner in this country. Right on! So let’s hold onto that. It is really worth celebrating and remembering and protecting.
• Today I’m going to share two different things with you. One is some observations of the system in Hong Kong, where I spent a few years working in refugee law. The other is observations about some legal changes in Canada during the last 5 years: effectively, significant erosion of that high water mark of the Singh case. I’ll end to touch on a side-effect of this, which has been a new focus on humanitarian and compassionate discretion in immigration decision-making. The common themes in these sharings, I suppose, are fairness and compassion.

So let’s start with Hong Kong

• In late 2005 my husband was transferred to Hong Kong for work, and so I chucked my fledgling new practice in and went with him. Shortly after we arrived I met a lawyer named Raquel Amador who was offering free legal advice to refugees. I quickly began volunteering with her, and she became a dear friend.
• Raquel and I bonded over our common observations of the legal environment in HK for refugees. Although China is a signatory to the 1951 Refugee Convention, it has not extended that status to the Hong Kong Special Autonomous Region. What that meant was that during my time in Hong Kong, it was the United Nations High Commission for Refugees (“UNHCR”) that carried out refugee status determination, not the local government as happens here in Canada.
• Refugee claimants went through the UNHCR process without any legal representation. There was no legal aid, and further, lawyers or advocates were not permitted into UNHCR’s hearing rooms. The hearing was effectively an interview through a glass window. No written reasons were provided for refused claims, and there was no right of appeal or judicial oversight of any kind. It was a closed system that had no checks on the very real potential for human error. This was not a fair system.
• I learned that this was a highly uncomfortable role for UNHCR. It carries out refugee status determination only when forced to, ie. when local governments refuse the role. There was no option for refugees to remain in HK. Resettlement to a third country, on recommendation by the UNHCR, was the only option. Refused claimants faced deportation to the last country they had left.
• In 2006 refugee claimants arrived in Hong Kong from about 120 countries. Most had sold everything in order to pay an agent; HK, being a pretty open port, was often as far as these agents could get and there they abandoned their human cargo. HK was rarely the intended destination.
• There was little to no social assistance for those seeking refugee protection. People relied on hand-outs from churches and often slept on the streets with their children. While refugee claimants waited as long as two years for their interview with UNHCR, they were not allowed to work. This was particularly stark in wealthy Hong Kong.
• When I began working with Raquel, her legal aid project operated out of a tiny office in Kowloon. As word spread, demand for our services grew. Raquel proposed that we fund-raise to set up an independent legal aid clinic. By then I was hooked and so I agreed. For the next 3 years we were on a tumultuous journey. We successfully negotiated access to UNHCR’s refugee hearings, and convinced them to re-open many cases where they had overlooked important facts. We partnered with law firms and law faculties and trained a corps of pro bono lawyers.
• I left Hong Kong in 2009 to return to Toronto. I am proud that the organization, then called the Hong Kong Refugee Advice Centre, remains vibrant and strong.

Current Canada experience

• Now I’m going to jump to the present day in Toronto. For the past 5 years I’ve been working as an immigration lawyer at a legal aid clinic. I do a lot of post-refugee determination work, helping non-status people whose claims for refugee protection have been refused, but where there are extraordinarily compelling facts nonetheless.
• The last 5 years have seen tremendous changes to our immigration law. A lot of the most troubling changes affect refugees who make claims for protection within Canada. The list of recent erosions to the Singh decision is long: an increasing number of people can’t get access to the Refugee Board. Timelines for those who do get access are swift. Refused refugee claimants are deported quickly. Many of these changes are being challenged and will make their way to the Supreme Court of Canada eventually.
• I want to focus on one particular change: If your refugee claim is unsuccessful – maybe you were totally believed, but you do not meet the very specific legal definition of a refugee under the Convention – you can no longer request to have an application to remain considered on “humanitarian and compassionate grounds” until 1 year after your refugee decision. The idea is that you will likely have been deported by then. Still other groups are barred from any H&C consideration at all.
• The same Barbara Jackman who argued the Singh case will argue a case called Kanthasamy v. MCI at the SCC this Thursday. This case will consider what H&C discretion ought to mean in the immigration context. I am privileged to be part of a team representing the Canadian Council for Refugees, which has been granted intervener status in this case. Since the ability to access protection through the refugee stream has been quite narrowed due to the recent changes I mention, it is a wonderful time to have our highest court look – for the first time, head-on – at the importance of the exercise of H&C discretion.
• And jumping back to Hong Kong, in 2013 a landmark Hong Kong Court of Final Appeal ruling finally forced the HK government to set up a system to consider claims for protection. So, in 2014 the HK government took over this job from UNHCR. The Hong Kong Refugee Advice Centre changed its mandate, and its name to Justice Centre Hong Kong, and now helps people navigate this new system.[1] Right on Hong Kong Court of Final Appeal! I imagine that is their Singh case that I hope will be celebrated, remembered, and protected in 30 years.

[1] http://www.justicecentre.org.hk/framework/uploads/2014/03/USM-Briefing-Meeting-the-Bare-Minimum-HK-New-Screening-Process-for-Protection.pdf