Justice Boswell of the Federal Court has struck down s. 110(2)(d.1) of the IRPA because it violates equality rights under section 15 of the Charter. He refused to suspend his judgment, indicating that Designated Country of Origin (DCO)claimants should not spend one more day subject to inequality. This means that DCO failed claimants can now appeal their refused claims to the Refugee Appeal Division (RAD). This is a substantive right that should be pursued as the RAD had far greater powers to rectify incorrect decisions than the Federal Court.
The full list of DCO countries is linked here:
For DCO claimants refused by the RPD and who are now within the 15 day limitation period: Because they must exhaust their remedies at the IRB prior to going to Court, they must seek a RAD appeal as opposed to seeking leave in the Federal Court. Their removal would be suspended pending the outcome of the appeal by virtue of s 49(2)(c) of the IRPA. Should the FCA grant a stay of the Federal Court's judgment, the implications can be assessed at that time as the stay order may or may not affect appeals that have already been filed.
For DCO claimants who are past the 15 day period and who may have already sought leave in the Federal Court: Counsel may want to consider seeking an extension of time to file an appeal in light of the IRPR factors of "fairness and natural justice" in s 159.91(2) and the fact that their clients now have a right of appeal as of 23 July 2015. Out of time appeals, however, do not carry a suspensive stay. In addition, it will be necessary to determine what to do about the pending leave or JR application.
For DCO claimants who have been removed from Canada and are awaiting leave or for whom leave has been granted: As above, counsel may want to consider an extension of time for an appeal at RAD, keeping in mind the implications for the Federal Court application.
If you are a failed claimant from a DCO, such as Mexico, Hungary, or the Czech Republic, we encourage you to contact our office immediately to discuss the implications of this decision and your further options.
The full list of DCO countries is linked here:
http://www.cic.gc.ca/english/refugees/reform-safe.asp
Although the government has announced in the media that it will appeal and seek a stay of the decision, the current implications of the Court's decision are:For DCO claimants refused by the RPD and who are now within the 15 day limitation period: Because they must exhaust their remedies at the IRB prior to going to Court, they must seek a RAD appeal as opposed to seeking leave in the Federal Court. Their removal would be suspended pending the outcome of the appeal by virtue of s 49(2)(c) of the IRPA. Should the FCA grant a stay of the Federal Court's judgment, the implications can be assessed at that time as the stay order may or may not affect appeals that have already been filed.
For DCO claimants who are past the 15 day period and who may have already sought leave in the Federal Court: Counsel may want to consider seeking an extension of time to file an appeal in light of the IRPR factors of "fairness and natural justice" in s 159.91(2) and the fact that their clients now have a right of appeal as of 23 July 2015. Out of time appeals, however, do not carry a suspensive stay. In addition, it will be necessary to determine what to do about the pending leave or JR application.
For DCO claimants who have been removed from Canada and are awaiting leave or for whom leave has been granted: As above, counsel may want to consider an extension of time for an appeal at RAD, keeping in mind the implications for the Federal Court application.
If you are a failed claimant from a DCO, such as Mexico, Hungary, or the Czech Republic, we encourage you to contact our office immediately to discuss the implications of this decision and your further options.
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