Immigration minister appears unaware of court ruling that guarantees Charter rights for refugees

Refugee rights advocates say they are shocked that the federal immigration minister appeared to be unfamiliar with the landmark Supreme Court decision widely considered to be the cornerstone of the Canadian refugee protection system.

In an interview with Radio-Canada, Immigration Minister Lena Metlege Diab was repeatedly asked about the 1985 Singh v. Minister of Employment and Immigration case.

This Singh decision ruled that asylum seekers are guaranteed the Charter right to fundamental justice and led to the creation of the Immigration and Refugee Board of Canada.

It is also a key argument in the legal challenge to the Carney government’s immigration reforms that restrict who is eligible for Refugee Board hearings.

“Honestly, I was extremely shocked,” said Gauri Sreenivasan, co-executive director of the Canadian Council for Refugees. “It’s very concerning that the minister in charge of Immigration, Refugees and Citizenship Canada would not be fully aware of the Supreme Court’s Singh decision.”

Diab was interviewed in July by Radio-Canada’s Les murs: le périple des migrants vers le Canada, a documentary podcast launched three weeks ago that examines Canada’s asylum system.

She was asked a series of questions, including about the Safe Third Country Agreement and Bill C-12, the Carney government’s immigration reforms passed last March.

One of the most controversial changes in C-12 was that asylum claims made more than a year after an individual’s first entry into Canada are no longer referred to the Refugee Board, but instead are given a pre-removal risk assessment.

The assessment is conducted by an Immigration Canada officer to ensure that a person is not at risk of being tortured or killed if returned to their country — and typically includes a written submission rather than an oral hearing.

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Diab said in French that Bill C-12 “respects our Canadian Charter,” adding that she herself is a lawyer and that the changes are meant to address the backlog in asylum cases.

When pressed about the argument that under the Singh decision asylum seekers have a constitutional right to an oral hearing, she replied that since the law is new, the government would continue to monitor the situation.

Radio-Canada then asked her point-blank if she was familiar with the Singh decision. After a pause, Diab asked that the name of the decision be repeated.

When told again that it was the Singh decision handed down by the Supreme Court of Canada in 1985, she said she would have to check with her team.

“There are many Singhs and many decisions,” said Diab.

WATCH | Diab asked about Singh decision:

Immigration minister asked about court ruling that guarantees Charter rights for refugees

In an interview with Radio-Canada’s Les murs: le périple des migrants vers le Canada, Immigration Minister Lena Diab appeared unfamiliar with a Supreme Court decision that is widely considered the cornerstone of Canada’s refugee protection system.

Radio-Canada then specified that it was the decision that led to the creation of the Refugee Board, to which she responded: “Ah, OK.”

With the Singh decision, the Supreme Court of Canada recognized, among other things, the right of asylum seekers to an oral hearing, according to several experts Radio-Canada spoke with.

“[The claimant] is entitled to a full hearing on their file so that they can explain their situation before a competent decision-maker,” said François Crépeau, professor emeritus of public international law at McGill University and former United Nations special rapporteur on the human rights of migrants.

“That is why the Immigration and Refugee Board was created in 1989. It was to meet the requirements of the Singh decision.”

Bill C-12 is being challenged in the courts. Lawyers allege it violates Canada’s legal obligations under both domestic and international law.

Immigration Canada maintains that the Singh decision is respected by Bill C-12.

“The Supreme Court in Singh found that in order to meet the requirements of fundamental justice, an oral hearing is required when there is a credibility issue at stake. The Supreme Court did not find that in all cases an oral hearing is required,” a department lawyer told a parliamentary committee studying Bill C-12 in February.

Crépeau disagrees: “Removing a full hearing … is a violation of the conditions set by the Singh decision.”

Immediately after the interview, Diab’s office insisted that the minister was well aware of the Singh decision, but that due to the language barrier she had not fully understood the questions.

The podcast interview was conducted in French, which is not Diab’s first language.

However, during two appearances in English before two different Senate committees studying Bill C-12, the minister also did not answer questions regarding the Singh decision, deferring to department officials and lawyers.

‘Issue of competence’: advocate

“I believe there is certainly an issue of competence,” said Louis-Philippe Jannard of TCRI, a Quebec umbrella association of more than 160 organizations working with refugees and immigrants.

“The issue of the Singh decision was raised during the legislative process for Bill C-12 before both the House of Commons and the Senate. So for it not to be on the minister’s radar is surprising to say the least.”

Radio-Canada asked the Prime Minister’s Office (PMO) whether, given these criticisms, Diab still has the confidence of Prime Minister Mark Carney.

PMO spokesperson Renée LeBlanc Proctor said in an email to Radio-Canada that Diab plays an “essential” role in the implementation of the federal government’s mandate to bring down immigration to “viable” levels while attracting the best talent in the world.

“She continues this work,” Proctor said.

Diab was previously criticized by immigrant rights groups who said the minister was hard to reach and did not seem to have a firm grasp of her cabinet portfolio. The Opposition Conservatives have been calling for Diab to be fired for months.