|
|
Introduction Canada is a country that, historically, was built on people moving from other country to seek a new life. Refugees have played an integral role in making Canada what it is today. In 2001, the total number of refugees in Canada was 27,894. As a signatory to the United Nations’ Convention to Refugees, Canada is obligated to protect people who are in fear of their lives. The protection of refugees in also incorporated into the Immigration and Refugee Protection Act which in 2002 replaced the Immigration Act. The purpose of this essay is to evaluate the effectiveness of the administrative system in Canada with respect to the protection of refugees under the Immigration and Refugee Protection Act. It is divided into three main sections. The first section describes Canada as an administrative state. The second section lays out both the IRPA with respect to refugees and the role of the Immigration and Refugee Board. The third section is a critique of the IRPA and the IRB with respect to their treatment of refugees. Canada as an Administrative State Administrative law plays a role in everyone’s life from the time of birth, and is interwoven throughout most daily activities. David J. Mullan, in Administrative Law, has described it as the “field of law that has as its concern the statutes (other than the Constitution), principles and rules that govern the operations of the government and its various emanations.” Administrative law concerns the implementation and regulation of public programs which are administered under a statute. The government, either federal or provincial depending on the jurisdiction of the issue, can create an agency under a statute to deal specifically with the problem and separately from the court system. The purpose of administrative law is to oversee the fairness of the administrative procedure, the adequacy of the factual basis and the legal authority for administrative action including its constitutionality, the rational exercise of discretion, and the availability of legal remedies to challenge the abuse of power by public bodies and officials. The scope of administrative regulatory power is vast, encompassing economic activities, professions and trade, human rights, public services and social control, including the regulation of immigration and refugee admittance. The agencies which oversee the regulation of the particular public policy get their power and mandate from the statute under which they are created and are confined not only by the jurisdiction of the statue and applicable regulations and guidelines, but also by the Canadian Charter of Rights and Freedoms and the common law rules of procedural fairness which ensure the at both parties to a hearing be heard and that the proceedings are free from bias. Although the courts are capable of handling disputes concerning public policy, administrative agencies are more advantageous for several reasons. First, it is often more appropriate for administrative agencies to make public policy decisions as they are much more governmental than judicial. Second, agencies have the necessary expertise and experience outside of law which judges may lack. This expertise and experience can make agencies more able to handle the needs of the disadvantaged party. Third, procedures by agencies are cheaper and waste fewer public resources than courts. This is particularly important as the disputes tend to involve small sums of money. Fourth, agencies are less formal and allow for decisions to be made more quickly and efficiently. Canadian courts are already backlogged with cases, and the numerous complaints against the government are better handled by an independent agency comprised of experts who play a more active role in the process. This isn’t to say that the courts play no role in administrative law. If a decision by an agency is flawed on the basis of an error of law, fact or both, the party negatively affected by this error may have the opportunity, if the statute allows, to appeal the decision to a court, who, may uphold a the agency’s decision, or overturn the decision and, depending on the statute, either send it back for a re-hearing or implement its own decision. The Immigration and Refugee Protection Act The statute that handles refugee protection is the Immigration and Refugee Protection Act, which, along with its regulations, came into effect on June 28, 2002. The IRPA replaced the Immigration Act, which was passed in 1976, and had “been amended more than 30 times”. As the name suggests, the Act handles issues regarding immigration to Canada and the granting of refugee protection. The IRPA lays out eight objectives regarding refugees: 1. to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; 2. to fulfil Canada's international legal obligations with respect to refugees and affirm Canada's commitment to international efforts to provide assistance to those in need of resettlement; 3. to grant, as a fundamental expression of Canada's humanitarian ideals, fair consideration to those who come to Canada claiming persecution; 4. to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment; 5. to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings; 6. to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada; 7. to protect the health and safety of Canadians and to maintain the security of Canadian society; and 8. to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals. Pursuant to section 3(3) of the IRPA, the Act must be construed and applied in a manner consistent with Canadian Charter of Rights and Freedoms and with any international human rights instruments which Canada has signed, and, in addition, must further the domestic and international interests of Canada. Under this the IRPA, the Governor in Council has the power to create regulations and designate the Minister who is responsible for the administration of the Act, including Part II which deals specifically with refugee protection.
|
