< Canadian Refugee Procedure

There are many books about the substance of refugee law, in Canada and internationally. 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 is not one of them. 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.

Refugee law itself may be regarded as a combination of administrative law, human rights law, civil procedure, and international law,[1] and as such, this text seeks to weave those strands together. That said, this text does not aspire to be an all-encompassing description of Canadian legal processes related to refugees, but instead 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."[2] 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.

Refugee admission is described as an area of immigration law that "remains controversial" and is "difficult to administer".[3] As Clayton Ma notes, refugee procedures in Canada have been characterized by speedy policy changes, often occasioned by "new governments and shifting popular opinions".[4] That said, in recent decades, such policy changes and procedural innovations have taken place against the stable background of Canada's international commitments, particularly the commitments enshrined in the 1951 Refugee Convention. 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 - as Jeremy Bentham observed, "miserable is the slavery of that people among whom the law is either unsettled or unknown."[5] This text strives to assist with remedying such a condition, primarily by describing the law as it exists (lex lata) but also by providing descriptions inflected by a conception of the law as it should be (lex ferenda). This discussion strives to include consideration of historical context. In this way, this text is influenced by the observation of Oliver Wendell Holmes, Jr. that "The life of the law has not been logic: it has been experience" and as a result focuses on the history and evolution of the rules in question over time.

References

  1. ↑ 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.
  2. ↑ High Commissioner's Forum, Resettlement and Convention Plus Initiatives, discussion paper, Doc FORUM/2003/02 (18 June 2003), para. 13.
  3. ↑ Troper, Harold. The Canadian Encyclopedia, s.v. "Immigration in Canada", Last Edited September 19, 2017, https://www.thecanadianencyclopedia.ca/en/article/immigration
  4. ↑ Encyclopedia, The Canadian. "Canadian Refugee Policy".  The Canadian Encyclopedia, 10 November 2020, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/canadian-refugee-policy. Accessed 30 December 2020.
  5. ↑ 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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