CONVICT TO GET REFUGEE HEARING

High court rules in favour of heroin dealer

OTTAWA - A Sri Lankan man convicted of trafficking in heroin should still
be allowed to have his claim for refugee status heard in Canada, the
Supreme Court of Canada has ruled.

The court decided that Veluppillai Pushpanathan should not be automatically
denied the chance to make a refugee claim solely because he was convicted
for drug trafficking and sentenced to eight years in prison.

In a 4-2 ruling, the judges ordered that Pushpanathan should be granted a
hearing before the Immigration and Refugee Board because of his claim that
he would be tortured and persecuted if sent back to Sri Lanka.

Writing for the majority, Mr. Justice Michel Bastarache said: ``The
practical implications of such an automatic exclusion, relative to the
safeguards of the (Immigration Act) procedures, are profound.''

But in quashing the immigration department's attempt to completely deny
Pushpanathan a refugee hearing - after lower courts had sided with the
immigration department - the Supreme Court did not close the door to
efforts to kick the man out of the country.

The immigration department could still invoke other measures to seek to
declare him a public danger on the basis of his criminal conviction, and
try to deport him from Canada no matter what the refugee board decides.

``This case decides that the fact you're convicted of a drug offence isn't
so heinous a matter as to warrant you being denied a right to make a
refugee claim,'' said lawyer Lorne Waldman, who represented Pushpanathan.

And Waldman said the ruling makes another crucial point: that the courts
don't have to defer to the judgment of tribunals when it comes to
interpreting the law.

Lower courts had agreed that the refugee board's interpretation of the law
was ``reasonable.''

But the Supreme Court agreed with Waldman that when it came to the law, the
standard for reviewing a tribunal decision was whether it was correct and
right, not just whether it was reasonable.

The immigration department had argued that according to the United
Nationsrefugee convention, it was proper to deny Pushpanathan a hearing
because he fell into an exclusion category set out in an article of the
convention.

The convention sets out three grounds for excluding someone from getting
refugee status: crimes against humanity and war crimes; conviction for a
serious, non-political crime outside the country of refuge; or if the
person is guilty of acts contrary to the purposes and principles of the
United Nations.

The refugee board determined that Pushpanathan's drug conviction was
tantamount to an act contrary to the purposes and principles of the United
Nations and therefore excluded him from refugee status.

But the Supreme Court disagreed with automatically excluding Pushpanathan
from protection without requiring the minister to explicitly declare him to
be a danger to the public

Checked-by: (Joel W. Johnson)