Canadian Refugee Procedure/About this text
There are many books about the substance of refugee law, both Canadian and international. They cover subjects such as what it means to have a well-founded fear of persecution and when a claimant has access to adequate state protection. This book is not one of them. Instead, this is a book about the legal processes involved in claiming refugee status in Canada, focusing particularly on the Refugee Protection Division Rules of the Immigration and Refugee Board of Canada. Tens of thousands of people file a claim for refugee protection in Canada every year. The ensuing process that they navigate is governed by the set of laws described herein.
Qualifications on the scope of this text Edit
Refugee law itself may be regarded as a combination of administrative law, human rights law, civil procedure, (at times) criminal law, and international law, and as such, this text seeks to weave these strands together. That said, this text does not aspire to be an all-encompassing description of Canadian legal processes related to refugees, let alone international ones. There are three primary qualifications to note:
- First, as James Hathaway observes, the two core concerns of refugee law are qualification for refugee status and the rights that follow from such status. He notes that the first of these questions has attracted by far the greater attention, and, indeed this book continues in that vein by focusing on the processes involved in applying for refugee status as opposed to engaging with the nature of the Canadian legal processes that apply to those entitled to the ensuing remedy, namely, refuge.
- Moreover, even when focusing on the process for obtaining refugee status, this text confines itself to the in-Canada asylum process, setting aside discussion of the overseas resettlement provisions in the IRPA. In part, this is because of the nature of those resettlement decisions. As the Government of Canada states, resettlement is managed as an administrative process, and "as a result resettlement decisions are not subject to the same level of formality as asylum determinations." The Canadian government notes that, in addition to being less costly to administer, this allows for quicker decision-making than is the case for asylum adjudication.
- Furthermore, even within the context of the in-Canada asylum process, this text does not concern itself with the rules of the Federal Court for judicial review, the rules of the Refugee Appeal Division for appeals, the rules of the Immigration Division for admissibility determinations, or the Pre-Removal Risk Assessment process. Nor does it cover the law and process for having a claim referred to the Immigration and Refugee Board.
Approach and content of this text Edit
Having discussed what this text does not cover, I now turn, then, to what this text does aspire to do and how it aims to go about that task. The centrepiece of this book is an annotation of the Refugee Protection Division Rules. This annotation strives to describe the law as it exists (lex lata), to situate such descriptions within the context of the law as it has been (lex historica), and to provide descriptions of the state of the law which are inflected by a conception of the law as it should be (lex ferenda).
Lex lata Edit
In describing the law as it exists, the goal of this text is to contribute to the legal positivist project by providing clear descriptions of the way that the provisions at issue are, and have been, interpreted. Bentham observes that "miserable is the slavery of that people among whom the law is either unsettled or unknown." This text aims to reduce indeterminacy by elucidating how the provisions at issue are in fact operationalized. The twin methodologies utilized in furtherance of this aim are 1) analyzing past decisions in order to extract and identify rules, and 2) an empirical methodology that focuses on statistics about decision-making trends.
This necessarily takes place in an international context given the nature of the international legal commitments at issue in refugee protection. To the extent that the IRPA aims to implement international conventions, the provisions of those conventions applied through this statute should be operationalized in a way that is coherent with convention interpretations done by other states party to the conventions. In this sense, the IRPA cannot be seen to be just another domestic statute, but must be interpreted in the context of Canada's international commitments. Analyzing Canadian refugee procedure in a way that is informed by those international legal commitments is not a mere paean to internationalist values, but instead an effort to ensure that binding legal commitments are operationalized.
Lex historica Edit
In setting out the law, this text strives to include consideration of historical context. It is said that "the life of the law has not been logic, it has been experience". Along these lines, this text strives to focus on the history and evolution of the procedures in question over time, reading the current rules in the context of what has come before and why changes have occurred. Refugee admission is described as an area of immigration law that "remains controversial" and is "difficult to administer". Some of the politics of refugee procedure have arguably been relatively constant over its lifespan; Hamlin, for example, describes refugee law as a tool created by and for states which is intended to depoliticize the subject matter, characterize refugee admissions as a noblesse oblige deserving of accolades, and obscure any question of state obligation arising from legacies of colonialism and continuing patterns of international exploitation and domination. Other aspects of refugee procedure have been characterized by speedy policy changes, occasioned by, in Clayton Ma's words, "new governments and shifting popular opinions". Indeed, Haddad asserts that "the refugee issue cannot be divorced from the political context in which it operates at any one time." In Gorman's words, “the refugee definition is not static but rather a site of ongoing struggle over asylum protection, evolving in response to changing human rights norms and domestic priorities.” Refugee procedure is characterized by such repeated policy shifts not only in Canada, but in many countries that engage in refugee status determination. As an example, Norway's first level refugee status determination system is said to have high staff turnover and to have undergone "frequent reorganizations". The policy change in this area of law means that rules and processes are regularly under development and in flux. This can be a challenge for claimants and lawyers both. Such history, and the values of the moment, also speak to the evolution, interpretation, and application of the rules, and refugee procedures writ large.
Lex ferenda Edit
Finally, this text seeks to provide descriptions of the state of the law which are inflected by a conception of the law "as it should be" (lex ferenda). For example, this text not only summarizes key cases and policies, but also attempts to organize and synthesize them into coherent and principled approaches to the sundry procedural issues discussed herein. Where there are multiple approaches to an issue, or the law is underdeveloped, this text seeks to identify a (in the view of this author) preferable approach. In providing such descriptions of the law that are inflected by a conception of the law "as it should be", this text has drawn on a number of sources of normative values:
- Canada’s international legal commitments have been relied upon as a source of normative values. While Canada's refugee policies have evolved and shifted over the past half century, such procedural innovations have taken place against the stable background of the country's international commitments, particularly the commitments enshrined in the 1951 Refugee Convention. Despite the initial estimate of a short lifespan, the Refugee Convention has continued to be relevant for going on seventy years. Anand Upendran writes that that relevance is in large measure supported by the Convention’s rootedness in the Universal Declaration of Human Rights, which, unlike the Convention, "was intended, from its very inception, to forever declare itself to humanity".
- This text has strived to adopt a decidedly comparative and international perspective. While the text is rooted in Canadian law, its approach to interpreting this country's procedures is grounded in the theory that principled interpretations can be informed by a study of other states' experiences and approaches, either to emulate or distinguish them.
- The objectives section of the Immigration and Refugee Protection Act has also been relied upon as a source of Parliamentary intent: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#IRPA ss. 3(2) and 3(3): Interpretation principles as derived from the Act.
- This text seeks to view the rules, treaties, and legislation at issue as a coherent system. As described by the International Law Commission, legal interpretation, and therefore legal reasoning, builds systemic relationships between rules and principles by envisaging them as part of some human effort or purpose. Much legal interpretation is therefore geared towards linking an unclear rule to a purpose and thus, by showing its position within some system, to providing a justification for applying it in one way rather than another. This text seeks to contribute to this end.
As a final note, this text strives to approach these issues with a tone commensurate to the subject matter at issue. It is said that instruments of international human rights law, like the Refugee Convention, are innately sombre. Upendran writes that "they are sombre because they have been necessitated by tragic histories; sombre because they, realistically, recognise the capacity of men and nations to inflict violations; sombre also because, even as they seek to reduce indignities and suffering, they are aware of their powerlessness to prevent those conditions entirely." And yet that somber focus on human rights violation has a counterpoint in refugee law in the concept of refuge and the related forms of relief promised by the refugee regime. Bridget Hayden states: “The significant factor that distinguishes a refugee from other people who cross borders, people who are internally displaced, or indeed from those who have not moved at all but live in abysmal conditions, is the sense of responsibility and either pity or empathy we feel for them. ‘Refugee,’ like all other such categories, is a relational term.” In this way, the protection of refugees can be as much a point of pride and identity for the receiving state as it is a somber exercise.
Canada’s refugee procedures surely say many things about Canada as a state. As one author has noted, "aliens are our mirror image; nothing like our consideration of them and their legal position presents us in so stark a way with an image of ourselves." Just what that image is may be determined by the reader. Arguably, the image that emerges from these pages is of a country that has devoted significant resources and attention to the conditions upon which the other will be recognized as having status in Canada. On the one hand, this reflects and befits a state with a self-proclaimed liberal humanitarian tradition whose identity has been entwined with the concept of being a home for the displaced and persecuted. On the other hand, it can be argued that the very concept of refugee law reifies the dichotomy between “us and them”, “native and foreigner”, and the resources expended on the project may be seen as part of a state-centric initiative to maintain the efficacy and legitimacy of borders, and by extension, sovereign national power. Refugee law, ultimately, is surely an amalgam of these diverse histories and motivations sitting in uneasy union.
- Jenny Poon, A Legal Pluralist Approach to Migration Control: Norm Compliance in a Globalized World, 34 Emory Int'l L. Rev. Recent Dev. 2037 (2020). Available at: https://scholarlycommons.law.emory.edu/eilr-recent-developments/4 at page 2039.
- James C. Hathaway, The Rights of Refugees under International Law, April 2021, ISBN: 9781108810913, <https://assets.cambridge.org/97811084/95899/excerpt/9781108495899_excerpt.pdf> (Accessed March 6, 2021), at page 1.
- High Commissioner's Forum, Resettlement and Convention Plus Initiatives, discussion paper, Doc FORUM/2003/02 (18 June 2003), para. 13.
- Mindus, P. (2020). Towards a Theory of Arbitrary Law-making in Migration Policy. Etikk I Praksis - Nordic Journal of Applied Ethics, 14(2), 9-33. https://doi.org/10.5324.eip.v14i2.3712
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- Rebecca Hamlin, Crossing: How We Label and React to People on the Move, Stanford, CA: Stanford University Press, 2021, ISBN 9781503627888, page 63.
- The Canadian Encyclopedia. "Canadian Refugee Policy". 10 November 2020, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/canadian-refugee-policy. Accessed 30 December 2020.
- Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 128.
- Vanto J, Saarikkomäki E, Alvesalo-Kuusi A, Lepinkäinen N, Pirjatanniemi E, Lavapuro J. Collectivized Discretion: Seeking Explanations for Decreased Asylum Recognition Rates in Finland After Europe’s 2015 “Refugee Crisis.” International Migration Review. November 2021. doi:10.1177/01979183211044096 at page 23.
- Tone Maia Liodden, Who Is a Refugee? Uncertainty and Discretion in Asylum Decisions, International Journal of Refugee Law, Advance Article, 29 April 2021 <https://doi-org.peacepalace.idm.oclc.org/10.1093/ijrl/eeab003> (Accessed May 1, 2021).
- Anand Upendran, At Sea? The State of International Refugee Law, <http://www.mcrg.ac.in/RLS_Migration_2021/Papers/Anand%20Upendran_Abstract.pdf> (Accessed June 2, 2021).
- International Law Commission, Fragmentation of international law: difficulties arising from the diversification and expansion of international law, DOCUMENT A/CN.4/L.682 and Add.1*, 13 April 2006, <https://legal.un.org/ilc/documentation/english/a_cn4_l682.pdf> (Accessed September 26, 2022), page 15 of PDF.
- Hayden, Bridget. “What’s in a Name? The Nature of the Individual in Refugee Studies.” Journal of Refugee Studies 19, no. 4 (2006): 471–87.
- E.M. Morgan, Aliens and Process Rights: The Open and Shut Case of Legal Sovereignty, (1988) 7 Wisconsin International Law Journal, 107-47, as cited in R. G. L. Fairweather, Canada's New Refugee Determination System, 27 CAN. Y.B. INT'l L. 295 (1989), page 308.