Canada's refugee status determination system and the international norm of independence

Refuge

Volumn 25, Issue 2, 2008, Pages 79-102

  Heckman, Gerald P ^a  

^a UNIVERSITY OF MANITOBA   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

FINANCIAL PROVISION; HUMAN RIGHTS; IMMIGRATION POLICY; INDEPENDENCE; INTERNATIONAL LAW; LAW ENFORCEMENT; MIGRANTS EXPERIENCE; REFUGEE; RISK ASSESSMENT; SECURITY;

CANADA;

EID: 77955758568     PISSN: 02295113     EISSN: None     Source Type: Journal    
DOI: 10.25071/1920-7336.26033     Document Type: Article

References (275)

1. Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177 [Singh].
2. C. Clark, "Critics assail Coderre's proposals for refugee system" The Globe and Mail (21 March 2003) A15.
3. "Refugee backlog headed for record high as Tories slow to appoint adjudicators" Canadian Press (8 April 2008).
4. 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47 [ICCPR or Covenant].
5. 4 November 1950, 213 U.N.T.S. 221, Eur. T.S. 5, art. 6 [ECHR or European Convention].
6. GA Res. 217(111) UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71, art. 10 [UDHR or Declaration].
7. 22 November 1969, 65 A.J.I.L. 679, art. 8.
8. Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Independence and Impartiality of the Judiciary, Jurors and Assessors and the Independence of Lawyers-report by the Special Rapporteur Param Cumaraswamy, UN Doc. E/CN.4/1995/39 (1995) at para. 35.
9. R. v. Hape, 2007 SCC 26 at paras. 53 and 54 [Hape|.
10. th Meeting: Canada (17 March 1999), UN Doc. CCPR/C/SR.1738, online: (date accessed: 15 February 2005).
11. Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47 [Optional Protocol"].
12. Committee on Human Rights, Communication No. 1234/2003, RK. v. Canada, UN Doc. CCPR/C/89/D/1234/2003 (3 April 2007) [RK.].
13. Maaouia v. France (2001) 33 E.H.R.R. 42 [Maaouia].
14. See Gerald Heckman, "International Law and Procedural Safeguards in Deportation Proceedings: Ahani v. Canada" (2004) 17.2 R.Q.D.I. 81 at 102 [Heckman, Deportation].
15. See D. Weissbrodt, The Right to a Fair Trial under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (The Hague: Kluwer Law International, 2001) at 46, 48 and 51;
16. P. van Dijk, "The interpretation of civil rights and obligations" by the European Court of Human Rights-One more step to take" in F. Matscher & H. Petzold, eds, Protecting Human Rights: The European Dimension-Studies in Honour of Gerard Wiarda, 2d ed. (Carl Heymans Verlag KG: Berlin, 1990) 131 [van Dijk 1990].
17. Weissbrodt, supra note 15 at 51. Roosevelt had expressed concern that administrative officers, not courts, determined many civil rights obligations like those connected with military service and taxation, van Dijk observes that these particular "civil rights and obligations" were not of a private law character, and concludes that Roosevelt understood "civil" to include all non-penal or non-criminal matters rather than solely private law matters: van Dijk 1990, supra note 15 at 137.
18. Van Dijk, ibid, at 137.
19. Weissbrodt, supra note 15 at 51.
20. st Sess., Supp. No. 40, UN Doc. A/41/40 (1986) at 145 [Y.L.].
21. Ibid, at para. 9.2.
22. Ibid, at para. 9.4.
23. Ibid, at paras 9.4-9.5.
24. For a detailed discussion, see Heckman, Deportation supra note 14 at 107.
25. Weissbrodt, supra note 15 at 139; S. Bailey, "Rights in the Administration of Justice" in D. Harris & S. Joseph, eds, The International Covenant on Civil and Political Rights and United Kingdom Law (Oxford: Clarendon Press, 1995) at 212;
26. D.J. Harris, Cases and Materials on International Law, 5th ed. (London: Sweet and Maxwell, 1998) at 672;
27. D. Mc-Goldrick, The Human Rights Committee (Oxford: Clarendon Press, 1991) at 416.
28. See also P. Boeles, Fair Immigration Proceedings in Europe (The Hague: Martinus Nijhoff, 1995) at 137;
29. S. Joseph et al., The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford: Oxford University Press, 2000) at 281.
30. Committee on Human Rights, Communication No. 441/1990, Casanovas v. France, 1994, UN Doc. CCPR/C/51/D/441/1990 at paras. 5.2 and 7.4. See also Communication No.454/1991, Pons v. Spain, 1995, UN Doc. CCPR/C/55/D/454/1991, at para. 9.6.
31. Committee on Human Rights, Communication No. 1052/2002, Tcholatch v. Canada, 2007, UN Doc. CCPR/C/89/D/1052/2002.
32. Committee on Human Rights, Communication No. 972/2001, Kazantzis v. Cyprus, 2003, UN Doc. CCPR/C/78/D/972/2001, at para. 6.5.
33. See D. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at 100-102.
34. See in particular, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 23-25 [Baker].
35. Kaplan, Report of 17 July 1980, (1981) D&R21 at 5(21).
36. See Skärby v. Sweden (1990), 13 E.H.R.R. 90 at para. 28: a dispute over a right arises where the applicant can arguably claim that the state authority has exercised its statutory discretion in a manner contrary to generally recognized legal and administrative principles.
37. See also P. van Dijk & G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights (The Hague: Kluwer Law, 1998) at 395.
38. Benthem v. Netherlands (1986) 8 E.H.R.R. 1 [Benthem].
39. Van Dijk 1998, supra note 31 at 397. For example, disciplinary proceedings against a doctor, although designed primarily to protect patients and promote public confidence in the medical profession, had a sufficient impact on the doctor s right to practice his profession that it effectively determined this "civil" right: Le Compte, Van Leuven and De Meyere v. Belgium (1981), 4 E.H.R.R. 1 at paras. 47-8 [Le Compte].
40. Van Dijk 1998, ibid, at 392-4;
41. see also van Dijk 1990, supra note 15.
42. This view is set out convincingly in the dissenting opinion of Judge Loucaides in Maaouia, supra note 13 at 0-IV3-8.
43. Benthem, supra note 32 at para. 34.
44. Tre Traktörer Aktiebolag v. Sweden (1989), 13 E.H.R.R. 309 at para. 42-43. The permit conferred "civil" rights because it was essential for the applicant to carry on its business activities as a restaurant.
45. Le Compte, supra note 33.
46. Feldebrugge v. Netherlands (1986), 8 E.H.R.R. 425 at para. 40. The Court emphasized the public health insurance's private law features, including its resemblance to private insurance, the tie between the availability of benefits and the applicant's employment under a private law contract, and the personal, economic, and individual nature of the right, of crucial importance to a person who by reason of illness has no other source of income. These "confer[red Ļ on the asserted entitlement the character of a civil right..."
47. Salesi v. Italy (1993), 26 E.H.R.R. 187 [Salesi]. This time, the Court did not rely on similarities between the statutory welfare assistance program and private schemes, but on the fact that Salesi suffered an interference with her means of subsistence and was claiming an individual, economic right flowing from specific rules laid down in a statute giving effect to the Constitution. .
48. See also Schuler-Zgraggen v. Switzerland (1993) 16 E.H.R.R. 405 at para. 46. The European Court has recently further broadened the scope of art. 6(1) in Vilho Eskelinen v. Finland, no. 63235/00 (19 April 2007) [Vilho Eskelinen].
49. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1992), para. 28.
50. James C. Hathaway, The Rights of Refugees under International Law (Cambridge: Cambridge University Press, 2005) at 158.
51. These include: rights to acquire, lease, or otherwise contract in respect of movable and immovable property and intellectual property rights: Convention relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 2545, Can. T.S. 1969/6, arts. 13, 14 [Refugee Convention].
52. Kraska v. Switzerland (1993), 18 E.H.R.R. 188.
53. Refugee Convention, supra note 43, art. 23.
54. Defined as "legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme": ibid., art.24(l)(b).
55. Recognition of refugee status is thus a necessary precondition to the exercise of the civil rights expressed in the Refugee Convention, even if it may not be sufficient, since many of these rights apply only once a refugee attains a specific level of attachment to the asylum state, usually ranging from physical presence to lawful presence and finally, to durable residence: Hathaway, supra note 42 at 156 et seq.
56. Maaouia, supra note 13 at para. 40.
57. Ibid, at paras. 38-39.
58. The Court relied on "an explanatory report" on the protocol which noted that the protocol "did not affect" the European Commission's interpretation of art. 6 denying that it applied to deportation proceedings: ibid, at paras. 35-37.
59. Vilho Eskelinen, supra note 40 at para. 61.
60. Van Dijk 1990, supra note 15; Maaouia, supra note 13 at paras. 0-IV4-0-IV11.
61. Maaouia, ibid, at para. 0-IV7.
62. Ibid.
63. Ibid, at para. 0-IV7.
64. Ibid. at O-IV15-0-IV17.
65. As the dissenting judges put it: "Protocols add to the rights of the individual. They do not restrict or abolish them": ibid, at para. 0-IV14.
66. See also H. Steenbergen, P. Boeles, & C. Wijnakker, "Case reports of the European Court of Human Rights" (2001), 3 Eur. J. Migr. 8c L. 97 at 101.
67. Art. XVIII of the American Declaration of the Rights and Duties of Man, 2 May 1948, 43 A.J.I.L. 133 simply provides that "every person may resort to the courts to ensure respect for his legal rights." Similarly, art. 8(1) of the American Convention on Human Rights, 22 November 1969, 65 A.J.I.L. 679 extends the right to a hearing to "the determination of his rights and obligations of a civil, labor, fiscal, or any other nature." They are broad enough to extend the independence guarantee to refugee status determination or removal proceedings.
68. Supra note 12.
69. Art. 13 states: "An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority."
70. P.K., supra note 12 at para. 4.9.
71. Ibid, at para. 7.5.
72. Human Rights Committee, Communication No. 1051/2002, Ahani v. Canada, 2004, UN Doc. CCPR/C/80/D/1051/2002 at para. 10.5.
73. Refugee determinations do not always occur in the context of an expulsion, to which Protocol 7 and art. 13 are limited: Peter Billings, "The Influence of Human Rights Law on the Procedural Formalities of the Asylum Determination Process" (1998) 2 Int'l J.H.R. 32 at 38. But see Christian To-muschat, "A Right to Asylum in Europe" (1992) 13 H.R.L.J. 257 at 263.
74. For a more detailed discussion of the scope and content of art. 13 ICCPR, see Heckman, Deportation, supra note 14.
75. M. Nowak, U.N. Covenant on Civil and Political Rights-CCPR Commentary (Kehl am Rhein: N.P. Engel, 1993) at 244-5. A tribunal "established by law" is one whose jurisdiction, both in relation to subject matter and territorial application, is "determined generally and independently of the given case" rather than set arbitrarily by administrative fiat.
76. st Sess., Supp. No. 40, UN Doc. HRI\GEN\I\ Rev.l (1984) at para. 3.
77. See R. Brody, "Introduction" in R. Brody, ed., C.I.J.L. Bulletin No. 25-26, Special Issue-The Independence of Judges and Lawyers: A Compilation of International Standards (Geneva: Centre for the Independence of Judges and Lawyers, 1990) at 3-13 [C.I.J.L Special Bulletin].
78. United Nations Basic Principles on the Independence of the Judiciary, in C.I.J.L Special Bulletin, supra note 69 at 14 [Basic Principles].
79. A/RES/40/146/13 Dec. 1985. To encourage states to give effect to these basic principles, the UN Economic and Social Council adopted "Procedures for the Effective Implementation of the Basic Principles on the Independence of the Judiciary," a document also endorsed by the General Assembly: Res. 44/162/15 Dec. 1989.
80. E/CN.4/Sub.2/1988/20/Add. 1 [Singhvi Declaration] in C.I.J.L Special Bulletin, supra note 69 at 38.
81. See, in particular, Valente v. The Queen, [1985] 2 S.C.R. 673 [Valente] and Canadian Pacific v. Matsqui Indian Band [1995] 1 S.C.R. 3. Art. 11 of the Basic Principles, supra note 70 provides that "the terms of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law."
82. See also Singhvi Declaration, ibid., art. 18. Art. 12 of the Basic Principles mandates guaranteed tenure until a fixed retirement age or the expiry of the judge's term in office: see also Singhvi Declaration, art. 16. The discipline, suspension, and removal of judges is strictly limited: Basic Principles, arts. 17-20;
83. Singhvi Declaration, arts. 26-31. Art. 14 of the Basic Principles reserves to the judiciary the task of assigning individual cases to judges;
84. see Singhvi Declaration, arts. 32-36. Art. 32 of the Singhvi Declaration confers on the judiciary or a body on which the judiciary is represented responsibility for court administration and court staff.
85. See Basic Principles, supra note 73, arts. 10 and 13;
86. Singhvi Declaration, supra note 73, arts. 11 and 24.
87. Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Administration of Justice and the Human Rights of Detainees: Study on the Independence and Impartiality of the Judiciary, Jurors and Assessors and the Independence of Lawyers-Final report by the Special Rapporteur, Mr. L. M. Singhvi, UN Doc. E/CN.4/Sub. 2/1985/18 (1985) at para. 108 [Singhvifinal report].
88. Ibid, at para. 11.
89. Ibid, at para. 14.
90. Ibid, at paras. 13, 14.
91. Committee on Human Rights, Communication No. 468/1991, Bahamonde v. Equatorial Guinea, 49th Sess., UN Doc. 49/40 (1993) at para. 9.4;
92. Concluding Observations of the Human Rights Committee: Belarus, UN Doc.CCPR/C/79/Add.86 (1997) at paras. 13-14;
93. Romania, UN Doc. CCPR/C/79/Add.111 (1999) at para. 10;
94. Congo, UN Doc. CCPR/C/79/Add.118 (2000) at para. 14;
95. Sudan, UN Doc. CCPR/C/79/Add.85 (1997) at para. 21;
96. Lithuania, UN Doc. CCPR/C/79/Add.87 (1997) at para. 16.
97. To be recognized as a tribunal under art. 6, the decision-making body's function must be to "determine matters within its competence on the basis of rules of law, following proceedings conducted in a prescribed manner": Sramek v. Austria (1985) 7 E.H.R.R. 351 at para. 36. It must have a power of binding decision in its area of jurisdiction over questions of fact and law: Campbell and Fell v. U.K. (1984) 7 EHRR 165 at 198 [Campbell and Fell];
98. Le Compte, supra note 33 at para. 51. But see Bryan v. U.K. (1995), 21 E.H.R.R. 342 [Bryan]. It need not be "a court of law of the classic kind, integrated within the standard judicial machinery of the country": Campbell and Fell at para. 76.
99. Crociani v. Italy (1980) 22 D.R. 147 at para. 8 (Eur. Comm. H.R.) at 221, para. 10;
100. Campbell and Fell, supra note 80 at para. 78.
101. Kleyn v. Netherlands (2004) 38:14 E.H.R.R. 239 at para. 193 [Kleyn].
102. In relation to the separation of legislative and judicial powers, see Stran Greek Refineries and Stratis Andreadis v. Greece, (1994) 19 E.H.R.R. 293
103. and McGonnell v. United Kingdom, (2000) 30 E.H.R.R. 289. Regarding the separation of executive and judicial powers, see Easterbrook v. United Kingdom, (2003) 37:40 E.H.R.R. 812.
104. Campbell and Fell, supra note 80 at para. 79.
105. Ettl v. Austria (1987) 10 E.H.R.R. 255 at para. 38 [Ettl];
106. see also Stallinger v. Austria (1997) 26 E.H.R.R. 81.
107. Ettl, supra note 85 at paras. 20 and 40-41. In these circumstances, the Court noted, it was appropriate for Austria to rely on civil servants with expertise in the complex field of land consolidation.
108. For example, while the three-year term of members of the Board of Visitors in Campbell and Fell was relatively short, the Court allowed for the fact that they were unpaid, and might refuse longer appointments: Campbell and Fell, supra note 80 at 199, paras. 79-80.
109. Campbell and Fell, supra note 80 at para. 80.
110. Morris v. United Kingdom (2002) 34 E.H.R.R. 52 at paras. 68-9.
111. Ibid, at para. 72.
112. Cooper v. United Kingdom, (2003) 39 E.H.R.R. 8.
113. Ibid, at para. 124.
114. Ibid.
115. Ibid, at para. 125.
116. Campbell and Fell, supra note 80 at paras. 81-82.
117. Bryan, supra note 80 at para. 38.
118. Le Compte, supra note 33 at para. 51.
119. The Human Rights Committee has also held that an appellate hearing before a tribunal that complies with article 14(1) may cure the defects of an initial hearing before a non-compliant tribunal: Committee on Human Rights, Communication No. 387/1989, Karttunen v. Finland, 46th Sess., UN Doc. 46/40 (1992) at paras. 7.2-7.3.
120. See Mark Poustie, "The Rule of Law or the Rule of Lawyers? Alconbury, Article 6(1) and the Role of Courts in Administrative Decisionmaklng" (2001), 6 E.H.R.L.R. 657 at 663.
121. Albert and Le Compte v. Belgium (1983) 5 E.H.R.R. 533 at 541-2 [Albert and Le Compte].
122. Le Compte, supra note 33 at para. 51. The European Court has refused to apply the composite approach to exempt first instance trial courts hearing criminal charges from full compliance with all art. 6(1) requirements: De Cubber v. Belgium (1985) 7 E.H.R.R. 236 at para. 32.
123. W v. U.K. (1987), 10 E.H.R.R. 29;
124. O v. U.K. (1987), 10 E.H.R.R. 82;
125. B v. U.K. (1987), 10 E.H.R.R. 87;
126. and R v. U.K. (1987), 10 E.H.R.R. 74.
127. B v. U.K., ibid, at para. 82. It was common ground that the proceedings before the local authorities did not satisfy art. 6(1).
128. Ibid, at paras. 49 and 82. The Court could set aside a care order if, in making its decision, the local authority: acted illegally, ultra vires, or in bad faith; failed to consider relevant considerations, took into account irrelevant considerations, or came to a decision that no reasonable authority could have made (the standard of Wednesbury unreasonableness); or failed to act fairly or to observe statutory procedural rules.
129. For a more detailed discussion of this subject, see Gerald Heckman & Lome Sossin, "How Do Canadian Administrative Law Protections Measure Up to International Human Rights Standards?" (2005) 50 McGill L.J. 193 at 225-233.
130. Bryan, supra note 80 at para. 45. See also R. (on the application of Holding & Barnes Pic) v. Secretary of State for the Environment, Transport, and the Regions [2001] H.R.L.R. 45 at para. 154 [Alconbury].
131. Zumtobel v. Austria, (1993), 17 E.H.R.R. 116 at para. 32 [Zumtobel]; see also ISKCON v. U.K. (Application No. 20490/92), March 8, 1994 at para. 4.
132. Bryan, supra note 80 at para. 47.
133. Begum (Runa) v. Tower Hamlets LBC, [2003] 1 All E.R. 731 (H.L.) at para. 42 [Begum].
134. Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 96 [IRPA].
135. Ibid., s.97.
136. The agency and portfolio were created by Order in Council on December 12, 2003: Order Transferring Certain Portions from the Department of Citizenship and Immigration to the Canada Border Services Agency, S.I./2003-215, C. Gaz. 2003.11.3231.
137. IRPA, supra note 110, s. 6.
138. Ibid., s. 100(1).
139. Ibid.,s. 101.
140. Canada, Immigration and Refugee Board, The Refugee Protection Claim Process, online: [Claim Process].
141. IRPA, supra note 110, s. 100(4).
142. Citizenship and Immigration Canada, Immigration Manual PP-1, "Processing Claims for Protection in Canada" (7 January 2005), online: at 38-41 [PP-1].
143. Refugee Protection Division Rules, SOR/2002-228, ss. 1, 5, and 6 [RPD Rules].
144. IRPA, supra note 110, s. 112.
145. Ibid., s. 114(1).
146. I22. Ibid.,s. 112(2)(b).
147. Agreement Between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, 5 December 2002, online: [Safe Third Country Agreement or Agreement]. The Agreement entered into force on December 29, 2004: CIC, Canada-US Safe Third Country Agreement, online: (last modified June 30, 2005).
148. Ibid., art. 4. Similarly, the Agreement allows the return to Canada of asylum seekers arriving in the United States from Canada. On 29 November 2007, the Federal Court of Canada declared that the regulations that operationalized the Agreement were ultra vires the IRPA because the United States did not comply with its international obligations towards refugees and was not a safe country. It also held that the regulations violated the Canadian Charter: Canadian Council for Refugees v. Canada, 2007 FC 1262 [CCR].
149. The Federal Court of Appeal overturned the trial judgment, finding that the designation of the United States as a safe country was lawful so long as the Governor-in-Council was of the opinion that the United States complied with its international obligations, regardless of its "actual compliance." It dismissed the Charter challenge, finding that the Canadian Council of Refugees, a Canadian NGO that advocates for refugees, did not have standing to challenge the regulations under the Charter and that there was an insufficient factual basis upon which to find a Charter breach: 2008 FCA 229 [CCRFCA].
150. Agreement, ibid., art. 4(2)(a)-(b); Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 159.5(a)-(d) [IRPRegs].
151. Agreement, ibid., art. 4(2)(c); IRPRegs, ibid., s. 159.5(e).
152. Agreement, ibid., art. 6. A claimant will not be returned to the United States if she faces the death penalty there, is being charged or convicted in another country of an offense punishable by the death penalty in that country, or is a national or stateless former habitual resident of a country subject to a Canadian moratorium on removals: IRP Regulations, ibid., s. 159.6.
153. Agreement, supra note 123, Statement of Principles, Principle 3 [Statement of Principles].
154. PP-1, supra note 118 at para. 17.23.
155. Ibid, at para. 17.13. Canadian officials may also reconsider negative eligibility determinations at the request of a US port director: ibid, at para. 17.19.
156. IRPA, supra note 110, s. 153(2).
157. The SAB comprises three members jointly appointed by the Minister and IRB Chair and three members appointed by the IRB Chair: CIC, News Release, "Minister Finley announces revised selection process for appointments to the IRB" (9 July 2007). online: [CIC release].
158. IRPA, supra note 110, ss. 153(l)(a),(c). The Act provides that no less than 10 per cent of RPD members must be barristers or notaries.
159. Ibid, s. 162(1).
160. Ibid., s. 163. Under the former Immigration Act, R.S.C. 1985, c. 1-2, claims were heard by two-member panels unless the claimant consented to a single-member panel: ss. 69.1(7),(8).
161. RPD Rules, supra note 119, s. 16.
162. Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16 (T.D.) at paras. 70-1, reversed on other grounds, 2007 FCA 198 at para. 44.
163. IRPA, supra note 110, s. 170(c).
164. See, for example, Canada, IRB, Guideline 7-Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division (1 December 2003), online: at para. 19.
165. IRPA, supra note 110, s. 107(1).
166. Ibid .,ss. 169(b), (d).
167. Ibid.,s.25.
168. Ibid s. 110(1).
169. IRPA, supra note 110, s. 112(1).
170. Ibid., s. 112(2)(b) and (d), respectively.
171. Claim Process, supra note 116 at para. 6.2; IRP Regs, s. 244(c), s. 160.
172. IRP Regs, ibid., s. 160. If she applies for a PRRA within the fifteen-day deadline, her removal is stayed until the application is decided: ibid., s. 162.
173. IRPA, supra note 110, s. 113(a). See also Lome Waldman, Canadian Immigration & Refugee Law Practice (Toronto: Lexis Nexis Butterworths, 2004) at 375. Previously, the Immigration Act allowed such claimants to file a fresh claim for refugee protection and be heard again by the IRB, providing they had been outside of Canada for ninety days: Immigration Act, R.S.C. 1985, c. 1-2, ss. 46.01(l)(c) and (5).
174. IRPA, supra note 110, s. 113(c). In certain circumstances, the PRRA officer may determine that an in-person hearing is required: IRP Regs, supra note 125, s. 167.
175. IRPA, ibid., s. 114(l)(a).
176. Ibid., s. 25. They may make an H&C application at the time they submit their protection claim.
177. Citizenship and Immigration Canada, IP5-Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds (12 January 2005), online: .
178. Ibid, at 8, para. 5.1.
179. Ibid, at para. 13.1.
180. Ibid, at 32, para. 13.6.
181. IRPA, supra note 110., s. 72(2)(b).
182. IRPA, supra note 110, s. 72(d).
183. Bains s v. Canada (M.E.I.) (1990), 47 Admin. L. R. 317 (FCA) at para. 1.
184. Ibid, at para. 4.
185. Coliseum v. Canada (M.E.I.) (1991), 13 Imm. L.R. (2d) 24 (F.C.T.D.) at para. 4.
186. Krishnapillai v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1828 (C.A.) at paras. 28-31, online: QL (FCJ).
187. IRPA, supra note 110, s. 72(2)(e).
188. Federal Court of Canada, Activity Summary-January 1 to December 31, 2007, online: .
189. Federal Court Act, R.S.C. 1985, c. F-7, s. 18.1(4). To obtain relief, the applicant must establish that the decision maker acted without jurisdiction, acted beyond its jurisdiction, or refused to exercise its jurisdiction; failed to observe a principle of natural justice, procedural fairness, or other procedure that it was required by law to observe; erred in law in making a decision or an order, whether or not the error appears on the face of the record; based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; acted, or failed to act, by reason of fraud or perjured evidence; or acted in any other way that was contrary to law.
190. Ibid.,s. 18.1(3).
191. IRPA, supra note 110, s. 74(d).
192. Samoylenko v. Canada (M.C.I.) (1996), 116 F.T.R. 144 (T.D.) [Samoylenko].
193. Canada (M.C.I.) v. Liyanagamage, [1994] F.C.J. No. 1637 (C.A.).
194. Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 982 at para. 25.
195. Ibid, at paras. 29-38.
196. Dunmsuirv. New Brunswick, 2008 SCC9 [Dunsmuir].
197. Law Society of New Brunswick v. Ryan 2003 SCC 20 at para. 44.
198. Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 [Southam] at 776-7.
199. Dunsmuir, supra note 171 at paras. 45-48.
200. Ibid, at para. 53.
201. Ibid, at paras 43-49. See also Mugesera v. Canada, 2005 SCC 40 at para. 37 [Mugesera], which discusses the standard of review for decisions of the IRBs Immigration Appeal Division.
202. Mugesera, ibid, at para. 38. See Dhindsa v. Canada (M.C.I.), [2000] F.C.J. No. 2011 (QL) at para. 41-44 where the Federal Court held that it would "not revisit the facts and weigh the evidence" or set aside credibility findings unless they were "clearly made without regard to the evidence", i.e., if the evidence, viewed reasonably, was "incapable of supporting the tribunal's findings of fact."
203. Sivasamboo v. Canada (M.C.I.) [1994] F.C.J. No. 2018 at para. 22, online: QL (FCC).
204. See for example, Khokhar v. Canada (Minister of Citizenship and Immigration), 2008 FC 449 at para. 23.
205. Sounitsky v. Canada (Minister of Citizenship and Immigration), 2008 FC 345 at para. 18. Before Dunsmuir, most judges, noting that PRRA officers base their risk assessments on new evidence pointing to "changed circumstances," concluded that PRRA decisions involved questions of fact and upheld them unless they were patently unreasonable or involved erroneous findings made in a perverse or capricious manner: Joseph v. Canada (M.C.I.), [2004] F.C.J. No. 392 at para. 10 (T.D.), online: QL (F.C.C.).
206. Baker, supra note 29.
207. A "non-independent" decision maker lacks the objective guarantees of independence required of tribunals by conventional international law, including security of tenure, financial security and actual independence-in appearance and practice-from the executive and legislature, and is not necessarily actually or subjectively biased.
208. This argument is also elaborated in Heckman & Sossin, supra note 105 at 248 et seq. Claimants who fail to obtain leave receive an even less intense review.
209. The section "Critiques of the Canadian System by Treaty Bodies," below, discusses reports by the Inter-American Commission on Human Rights and views of the United Nations Committee Against Torture.
210. The Minister of Citizenship and Immigration may discipline or remove them from office before completion of their term only in exceptional circumstances, at the IRB Chairs request and following a public inquiry conducted by a Superior Court judge: IRPA, supra note 110, s. 176. Members must either be incapacitated, be found guilty of misconduct, fail in the proper execution of their office, or be placed in a position incompatible with the due execution of their office.
211. Ibid., s. 153(d).
212. Ibid., s. 159.
213. Under a system established by the federal government in 2004 to put an end to a history of rampant patronage in the selection of IRB members, an advisory panel of six members chosen and chaired by the IRB Chair carried out a merit-based, non-partisan assessment of candidates for IRB positions and provided the names of qualified candidates to the IRB Chair. These candidates' competences were further assessed by the Chair and expert IRB staff. The Minister of Citizenship and Immigration could then appoint members from a list of qualified candidates. Since July 2007, the Minister participates in selecting three of the six members of the advisory panel: CIC Release, supra note 132. Following this change, the IRBs Chair resigned his position, as did the members of the independent advisory panel, some of whom raised concerns that the government was seeking to re-politicize the refugee determination process;
214. see Bruce Campion-Smith, "PM defends refugee board changes" Toronto Star (I March 2007).
215. But see Francois Crépeau & Delphine Nakache, "Critical Spaces in the Canadian Refugee Determination System: 1989-2002" (2008), 20 I.J.R.L. 50.
216. [1989] 2 EC. 363 (C.A.), aff'g [1988] 3 EC. 308 (T.D.), leave to appeal to SCC refused (1989) 101 N.R. 157 (note) (S.C.C.) [Mohammad].
217. IAT members were appointed by the Governor-in-Council for fixed terms not exceeding ten years and held office during good behaviour.
218. Mohammad (T.D.), supra note 190 at para. 55.
219. Mohammad, supra note 190 at para. 76.
220. The Court minimized the connections between the Adjudication Directorate and the Enforcement Branch and overemphasized the significance of a generic oath of office and job description. Purporting to focus on objective guarantees that support a perception of sufficient institutional distance between adjudicators and the executive, it relied on a retired adjudicator's "feeling" that
221. An act to amend the Immigration Act and other acts in consequence thereof, S.C. 1992, c. 49, s. 47(1).
222. Immigration Act, R.S.C. 1985, c. 1-2, s. 58(3).
223. Ahumada v. Canada (M.C.I.), [2001] EC. 605 (C.A.) at para. 57.
224. Ibid, at para. 46.
225. ibid, at paras. 54-55.
226. OAS, Inter-American Commission on Human Rights, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination System, OEA/Ser.L/V/II.106/Doc. 40 rev. February 28, 2000 at para. 64 [IACHR Report].
227. Nalliah v. Canada (Solicitor General), [2004] F.C.J. No. 2005 (T.D.), online: QL (FCC) [Nalliah].
228. Order Transferring Certain Portions from the Department of Citizenship and Immigration to the Canada Border Services Agency, S.I./2003-215, C. Gaz. 2003.11.3231 [emphasis added]. PSEP's portfolio includes emergency preparedness, national security, corrections, policing, oversight, crime prevention, and border services: Canada Border Services Agency, About the CBSA, online: (date accessed: 25 February 2005).
229. Canadian Council for Refugees, News Release, "New Border Agency Threatens Refugee Protection in Canada" (8 January 2004), online: (date accessed: 25 February 2005).
230. Order Transferring to the Department of Citizenship and Immigration the Control and Supervision of Certain Portions within the Canada Border Services Agency and Transferring from the Deputy Minister and Minister of Public Safety and Emergency Preparedness to the Minister of Citizenship and Immigration Certain Powers, Duties and Functions, S.I./2004-135, C. Gaz. 2004.11.1614;
231. Government of Canada, News Release, "Government of Canada announces transfer of certain functions between Citizenship and Immigration Canada and the Canada Border Services Agency" (12 October 2004).
232. Challenges to PRRA applications conducted by CIC before the transfer of PRRA to CBSA have failed. See, for example, Ann v. Canada (M.C.I.) (12 February 2003), IMM-871-03 (F.C.T.D.).
233. 2005 FC 739 (T.D.), upheld 2005 FCA 422, leave to appeal denied, [2006] S.C.C.A. No. 49, online: QL [Say].
234. Applicant's Memorandum of Fact and Law-Application for leave and judicial review, Nalliah v. Canada (M.C.I.; Solicitor General), IMM-9071-04 at para. 37.
235. Much of the information upon which this discussion is based is drawn from the Affidavits of Himmat Shinhat, Audrey Mitchell, and Michelle Tiffney, Respondents Motion Record, Nalliah v. Canada (M.C.I.; Solicitor General), IMM-9071-04.
236. Citizenship and Immigration Canada, Immigration Manual PP-3, "PPRA" (June 2002), online: at paras. 5.14 and 7 [PP3].
237. PP3, supra note 209 at 26, para. 7.
238. The Policy Unit provides interpretations of legislation, policy, and case law, advises on specific factual scenarios, and answers questions from individual PRRA officers regarding the appropriate application of the IRPA, IRPA Regulations and PRRA policy.
239. A training presentation on protecting PRRA officers from undue influence in the exercise of their duties states that PRRA and removals functions may be co-located "if a separate reporting structure is in place": Shinhat affidavit, supra note 208, Exhibit "C".
240. Tiffney affidavit, supra note 208 at para. 23.
241. Nalliah alleged that PRRA decisions had been expedited to meet removal dates scheduled by the enforcement unit, a claim denied by the government: Affidavit of Brena Parnes, Applicant's Motion Record, Nalliah v. Canada (M.C.I.; Solicitor General), IMM-9071-04 at para. 27.
242. Respondent's Memorandum of Argument, Nalliah v. Canada (M.C.I.; Solicitor General), IMM-9071-04 at para. 31 [Nalliah Memorandum].
243. Shinhat affidavit, supra note 208 at para. 25; Immigration and Refugee Protection Regulations, Regulatory Impact Analysis Statement (15 December 2001) Canada Gazette Part 14477 at 4554 [RIAS].
244. See also Sing v. Canada (Minister of Citizenship and Immigration), 2007 FC 361, where the Federal Court, citing Say, determined that there was no reasonable apprehension that a PRRA officer's risk assessment decision would be biased against a protection claimant because the Minister had intervened against the claimant in prior IRB proceedings. The official who had intervened against the claimant and the PRRA officer were in two different units within CIC and each decision-maker had acted within its own statutory mandate. The Court noted, at para. 75, that "PRRA officers are professional decisionmakers, undoubtedly very much aware that their decisions are subject to the constraints imposed upon each and every decision made on a quasi-judicial basis."
245. Say, supra note 215 at para. 39.
246. Nalliah Memorandum, supra note 215 at para. 40.
247. See Ettl, supra note 85.
248. See Morris, supra, note 89. Contrary to the junior members of the Court Martial in Cooper, supra note 91, PRRA officers' views are subject to the scrutiny of superiors.
249. Say, supra note 206 at para. 44.
250. It is noteworthy that the Federal Court of Appeal has held that PRRA officers do not have jurisdiction to determine whether their enabling statute is constitutional or not: Co-varubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365, [2006] F.C.J. No. 1682 (QL);
251. Singh v. Canada (Minister of Citizenship and Immigration), 2004 FC 288, [2004] F.C.J. No. 346. Writing extrajudicially, Federal Court Justice John Evans has suggested that such decisions recognize that immigration officers "lacked both the independence and the procedural powers needed to build a record that could form the basis on which a court could review a determination of a constitutional question": John Evans, "Principle and Pragmatism: Administrative Agencies' Jurisdiction over Constitutional Issues" in Grant Hu-scroft & Michael Taggart, eds., Inside and Outside Canadian Administrative Law (Toronto: University of Toronto Press, 2006) 377 at 403.
252. IRPA, supra note 110, s. 112(2)(b).
253. CCR, supra note 124 at paras. 154 and 191. The Court held that the stringent application by US authorities of a bar on asylum claims filed after one year, combined with the higher burden on protection claimants to successfully apply for withholding of removal, put claimants returned to the US at risk of refoulement, contrary to the Refugee Convention. It found that the US statutory provisions requiring the exclusion of persons who involuntarily provided support to terrorist groups also subjected claimants returned to the US to a serious risk of refoulement.
254. The Federal Court of Appeal overturned this decision because, in its view, the motions judge improperly entertained the Charter challenge in the absence of a proper factual foundation: CCR FCA, supra note 124 at para. 103. It did not hold that such a challenge could not succeed in an appropriate case, advanced by a refugee claimant found ineligible under the Safe Third Country Agreement and who faced a real risk of refoulement in being sent back to the United States.
255. To uphold claimants' right to an independent adjudication of their claim, immigration officers have no choice but to invoke the public interest exception to the application of the Safe Third Country Agreement and find that claimants caught by the US one-year bar and "material support" provisions are eligible to have their claims determined by the RPD. Automatic referral of such claims to the RPD for adjudication would be compatible with the expeditious administrative process contemplated by the statutory scheme.
256. But see CCR FCA, supra note 124 at paras. 124-125, where, in a concurring judgment, Evans J.A. contemplates that CBSA officers themselves (assisted by guidelines) would make eligibility decisions for claimants who assert they will be refouled if returned to the United States under the Safe Third Country Agreement.
257. 2 May 1948, 43 A.J.I.L. 133.
258. IACHR Report, supra note 200 at para. 60. The Commission linked this right to be heard to "the principle of respect for due process which underlies various provisions of the American Declaration, most pertinently arts. II (equal protection), XVII (recognition of judicial personality and civil rights), XVIII (fair trial), and XXVI (due process)."
259. Ibid, at para. 64.
260. Ibid, at para. 70 [emphasis added].
261. Can. T.S. 1987 No. 36 [CAT].
262. Committee Against Torture, 25th Session, Concluding observations of the Committee against Torture : Canada. 22/11/2000, A/56/44, at para. 58(f).
263. Ibid. at para. 59(b) [emphasis added].
264. Committee Against Torture, 34th Session, Conclusions and Recommendations of the Committee Against Torture: Canada. 07/07/2005, CAT/C/CR/34/CAN. At para. 5(c).
265. Committee Against Torture, Communication No. 133/1999, Enrique Falcon Ríos v. Canada, UN Doc. CAT/C/33/D/133/1999 (17 December 2004).
266. The IRB panel's adverse credibility findings against Ríos have been criticized for their reliance on stereotypes and a lack of basic knowledge regarding the political situation in Chiapas: Cécile Rousseau et al, "The Complexity of Determining Refugeehood: A Multidisciplinary Analysis of the Decision-making Process of the Canadian Immigration and Refugee Board" (2002) 15 J. of Refugee Studies 43 at 59, 61, and 62.
267. Ibid, at para. 7.3.
268. A court reviewing the H&C decision would not substitute its own views for that of the H&C officer but would remit the case to another non-independent officer.
269. Ibid, at para. 7.5.
270. Ibid, at paras. 8.6,9.
271. Committee Against Torture, Communication No. 273/2005, T.A. v. Canada, UN Doc. CAT/C/36/D/273/2005 (22 May 2006) [T.A.].
272. T.A., ibid, at para. 6.4; Committee Against Torture, Communication No. 183/2001, B.S.S. v. Canada, UN Doc. CAT/C/32/D/183/2001 (17 May 2004) at para. 11.6; Communication No. 282/2005, S.RA. v. Canada, UN Doc. CAT/C/37/D/282/2005 (6 December 2006) at para. 7.4.
273. IRPA, supra note 110, s. 3(3)(f).
274. Gerald P. Heckman, Prospects for Narrowing the Gap between Domestic and International Institutional and Procedural Safeguards in Canadian, American and Australian Refugee Protection Decisionmaking (Ph.D. Thesis, Osgoode Hall Law School, York University, 2008) [unpublished].
275. Hape, supra note 9. Canada's international human rights obligations only inform the content of Charter protections: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3. at para. 60.