Amnesty International was represented in this case by Michael Bossin, Laïla Demirdache and Jamie Liew.
WHAT IS THIS CASE ABOUT?
Tusif Ur Rehman Chhina is a man of Pakistani origin who was held for over 2 years in immigration detention, since November 2015. During that time, his detention was reviewed 12 times under the mechanism put in place by the federal Immigration and Refugee Protection Act, yet he was kept in detention because the Canada Border Services Agency (CBSA) believed that detention was necessary in order to eventually deport him even though there were alternatives to detention presented.
When Mr. Chhina, who was being held in Alberta, applied to Court to have the legality of his detention reviewed, the Court declined to hear the case stating that the existing federal statutory mechanism was sufficient. The Alberta Court of Appeal subsequently overturned that decision, underscoring the importance of the right to habeas corpus, which requires a judge or Court to review the detention. The federal government has appealed this decision before the Supreme Court of Canada, arguing that the Immigration and Refugee Protection Act (“IRPA”) provides a review of immigration detention that is complete, comprehensive and expert and as such, that there is no basis in law to find that habeas corpus is a route by which immigration detainees can, as of right, challenge the legality of their detention in a superior court.
AMNESTY INTERNATIONAL’S INTERVENTION
Amnesty International argued that the broad right to challenge one’s detention by way of habeas corpus extends to immigration detention, that this challenge must be heard before a court, not a ministerial official, and that Canada is under international legal obligations to guarantee this right. Amnesty International Canada submitted that: (1) there is a right to habeas corpus in international law; (2) the entitlement to challenge detention extends to all contexts of detention, including administrative detention and therefore immigration detention; (3) the court responsible for habeas corpus reviews should be a different body from the one that initially ordered the detention; and (4) the right to habeas corpus is of particular relevance to stateless individuals due to their vulnerability to long-term administrative detention.
STATUS OF THE CASE
The Supreme Court granted a leave to appeal on May 3, 2018. The Court heard the case on 14 November 2018, and the judgement was rendered on 10 May 2019.
In their decision, the Court dismissed the Minister’s appeal and affirmed that there must be a complete, comprehensive, and expert scheme that is as broad and advantageous as habeas corpus when the legality of detention is being challenged in a habeas corpus application. The Court ruled that the statutory scheme in the IRPA does not meet this criterion, as IRPA proceedings do not provide for review as broad and advantageous as habeas corpus with respect to the bases upon which Mr. Chhina challenged his detention: the length, uncertain duration, and conditions of detention. Ultimately, the IRPA’s scheme is less advantageous to detainees in terms of the onus in detention review than a habeas corpus proceeding, the scope of review is narrower, and the remedy is less timely than that which would be provided by a habeas corpus application. For these reasons, the appeal was dismissed.
Judgment of the Supreme Court (Canada (Public Safety and Emergency Preparedness v. Chhina, 2019)
“Landmark immigration detention case to be heard at the Supreme Court this week” (13 November 2018)