Admininstrative State

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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 001, the total number of refugees in Canada was 7,84. 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 00 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 StateCheap custom writing service can write essays on Admininstrative 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 8, 00. The IRPA replaced the Immigration Act, which was passed in 176, and had "been amended more than 0 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;

. to fulfil Canadas international legal obligations with respect to refugees and affirm Canadas commitment to international efforts to provide assistance to those in need of resettlement;

. to grant, as a fundamental expression of Canadas 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 Canadas 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 () 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. For the purposes of the IRPA, the Minister has the power, if permitted by the Governor in Council, to enter into an agreement with the government of a Canadian province, a foreign state, or an international organization.

Refugee Protection

Refugee protection can be conferred on Convention refugees or on persons found to be in need of protection. A Convention refugee is a person who fulfills the criteria of the United Nations' Convention relating to the Status of Refugees, which came into force on April , 154. This is a person who is in fear of persecution in his or her country of nationality or former residence due to race, religion, nationality, membership in a particular social group or political opinion. A person in need of protection is a person who if sent back to his or her country of nationality or former residence would be personally subjected to danger of torture or subjected to a risk to life, or to cruel and unusual punishment if the person won't receive protection from that country, the person would face punishment in all parts of that country, the risk is not a lawful sanction, or the risk is not due to inadequate health or medical care.

There are three ways to confer refugee protection on a person

1. under a visa application determining the person to be a Convention;

. determination by the Immigration and Refugee Board of Convention refugee status or person in need of protection status; or

. allowance by the Minister for an application for protection.

A person described under section E or F of the Article 1 of the Convention relating to the Status of Refugees is not eligible for refugee protection. This includes people who are regarded as having the rights and obligations that a national of the country in which they are residing has, and people who have committed crimes against peace or humanity, serious non-political crimes outside the country of refuge before being admitted as a refugee, and who have been guilty of acts contrary to United Nations' purposes and principles.

It is up to the person claiming refugee status to prove that he or she is eligible for refugee protection by truthfully answering all questions asked of him or her. The person must then produce all necessary documents and information required by the Board if the claim is referred. However, there are many reasons preventing a claim from being referred

a) if refugee protection has been conferred on the person, then the claim is ineligible;

b) if the Board has already rejected the claim, a further claim is ineligible;

c) if a country other than Canada has recognized the person as a Convention refugee and the person can go to that country, then the claim is ineligible;

d) if the person came from a country complying with the Refugee Convention and the Convention Against Torture, then the claim is ineligible;

e) if the person has been determined to be a threat to security, then the claim is inadmissible.

Inadmissibility

A person is classified as inadmissible for various reasons as set out in section 4 through 7 of the IRPA, including security reasons, human or international rights violations, serious criminality, criminality, organized criminality, health grounds and financial reasons. When determining whether the first five of these factors are applicable, an officer considers whether there are reasonable grounds to believe not only that they have occurred or are occurring, but also that they may occur. However, if the person can convince the Minister that his or her presence in Canada would not be detrimental to the national interest, then he or she will possibly be declared admissible. Once a person is found inadmissible, he or she cannot appeal the decision if the inadmissibility is based on security, violating human or international rights, serious criminality or organized criminality. Here, serious criminality is with respect to a crime punishable in Canada by a term of imprisonment of at least two years. As the Refugee Appeal Division has not yet come into force, appeals are handled by the Immigration Appeal Division. This division can allow an appeal if the decision was wrong in law, fact or both, if a principle of natural justice has not been observed, or if sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances. The Immigration Appeal Division is then responsible for setting aside the original decision and substituting a decision in its place.

The Immigration and Refugee Board

Part IV of the IRPA creates the Immigration and Refugee Board ("IRB"). The IRB is Canadas largest independent administrative tribunal, whose purpose is to make reasoned decisions on immigration and refugee matters in an efficient and fair way and in accordance to the law. . The IRB is split into four divisions, the Refugee Protection Division ("RPD"), the Immigration Division ("ID"), the Refugee Appeal Division ("RAD"), and the Immigration Appeal Division ("IAD"). The RPD decides claims for refugee protection made by persons in Canada. Refugee protection claims made outside Canada are decided by Citizenship and Immigration Canada ("CIC"). The ID is responsible for conducting immigration admissibility hearings for certain categories of people believed to be inadmissible to, or removable from, Canada under the law and conducts detention reviews for those being detained under the IRPA. The IAD hears appeals of sponsorship applications refused by officials of Citizenship and Immigration Canada ("CIC"); appeals from certain removal orders made against permanent residents, refugees and other protected persons, and holders of permanent resident visas; and appeals by permanent residents who have been found outside of Canada not to have fulfilled their residency obligation; and appeals by CIC from decisions of the Immigration Division at admissibility hearings. The RAD has not yet come into force, however, its purpose is to decide appeals from decisions made by the Refugee Protection Division.

The Divisions follow a quasi-tribunal process designed to ensure fair, efficient, and consistent decisions in accordance with Canadian law and Canadas international obligations and humanitarian traditions. Some characteristics of the tribunal are

1. Individuals have the right to be heard and to present their cases fully.

. All testimony is given under oath or by affirmation

. Most cases are heard by one member, although occasionally in the Refugee Protection Division and Immigration Appeal Division, panels of three members will hear cases

4. Hearings concerning refugee claimants are generally held in private, while other hearings are usually open to the public. However, a member of the public may apply to attend a refugee hearing, and upon request, other hearings may be held in private. The guiding principle in all cases is whether there is a serious possibility that the life, liberty or security of a person would be endangered by holding the hearing in public

5. The setting and procedures for hearings are relatively informal and therefore, evidence presented and accepted is not restricted by technical or legal rules of evidence

6. Each division has rules of practice that set out more detailed requirements for procedures, time limits, disclosure of evidence, provision of documents, and other responsibilities of parties and counsel

7. All IRB decisions are based on the evidence provided during the proceedings

8. Members must provide reasons for all final decisions

. Both CIC and individuals appearing before the IRB have the right to apply to the Federal Court of Canada for judicial review of decisions rendered by one of the divisions of the IRB. They must first obtain leave (permission) of the Court.

The Chair person and members of these divisions are appointed by the Governor in Council for seven years subject to reappointment. At least 10% of the members must be members of at least five years standing at the bar of a province or notaries of at least five years standing at the Chambre des notaires du Quebec. They are not allowed to have any criminal or civil proceedings against them or allowed to appear as a witness in any civil proceedings. Each division has sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, and must handle all proceedings as informally and quickly as possible, while still abiding by the rules of natural justice. Matters are generally conducted before a single member, unless the Chairperson decides that a three-member panel is necessary.

Proceeding must be held in public unless the Division decides that it should be held in private due to a threat to life, liberty or security, a risk to fairness of the proceeding or a risk that matters involving public security will be disclosed.

Refugee Protection Division

As previously mentioned, the RPD decides claims for refugee protection made within Canada. In addition, it also makes decisions on applications filed by CIC regarding loss of refugee protection status. Canada's obligations toward the protection of refugees stems from several United Nations Conventions including the 151 Convention Relating to the Status of Refugees, the 166 International Covenant on Civil and Political Rights, and the 184 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

Section 170 of the IRPA sets out the responsibilities of the Refugee Protection Division in the event of a proceeding. This Division

a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded;

b) must hold a hearing;

c) must notify the person who is the subject of the proceeding and the Minister of the hearing;

d) must provide the Minister, on request, with the documents and information which the claimant has submitted to prove that he or she is eligible to be referred to the Refugee Protection Division;

e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations;

f) may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Ministers intention to intervene;

g) is not bound by any legal or technical rules of evidence;

h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; and

i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge.

When a person has completed a Personal Information Form, the claim can go either through an expedited process or a full hearing process. If the claim appears to be well founded, then it can go through the expedited process, whereby a refugee protection officer interviews the claimant and makes a recommendation regarding the claim. The claim is passed on to a member who decides whether it should b e accepted without a hearing, if the recommendation is favourable. If claimant is not granted refugee protection, a full hearing is held. A full hearing is typically non-adversarial, except when a CIC representative argues against the claim, and follows a general tribunal process. If the claim is accepted by the IRB, the claimant can apply to become a permanent resident; if the claim is not accepted, the claimant still has the opportunity to ask the Federal Court of Canada for leave to apply for judicial review. If leave to appeal is granted, the claim goes back to the RPD for a re-hearing.

Unsuccessful claimants may have other avenues of recourse at CIC including a pre-removal risk assessment.

Case Law

In Chiarelli v. __________, Sopinka J. discussed the constitutionality of the statutory scheme under which a permanent resident could be deported from Canada if he or she is found to have been convicted of an offence which may impose an imprisonment of five years or more. Chiarelli claimed that this provision attacked sections 7 and 1 of the Charter. Chiarelli received landed immigrant status in 175. In 184, he plead guilty to possessing narcotics for the purpose of trafficking, which carries a life imprisonment sentence and was sentenced to 6 months in jail. A deportation order was made against him pursuant to section () of the Immigration Act. This section provides that the adjudicator must make a deportation order against a person who has been convicted of an offence where an imprisonment term of five years or more has been imposed, unless the person is a Convention refugee. (what about persons in need of protection) An appeal hearing was adjourned after it was decided that there were reasonable grounds to believe that Chiarelli would engage in activity that was part of a pattern of organized crime. Sopinka J. found that this section was not a breach of fundamental justice. He stated that in order to determine the scope of fundamental principles as they applied to the case, the Court needed to look at the principles and policies underlying immigration law, the fundamental principle being that non-citizens do not have an unqualified right to enter and leave the country. The Charter itself draws a distinction between citizens and non-citizens. Under section 6(1) a Canadian citizen has the right to enter, remain in, or leave Canada, while section 6(), only gives permanent residents the right to move to, live in and gain a livelihood in any province. Sopinka J. suggested that the condition that non-citizens be deported when convicted of a crime is a legitimate response to a potential threat to public interest. He stated

…there is one element common to all persons who fall within the class of permanent residents described in s.7(1)(d)(ii). They have all deliberately violated an essential condition under which they were permitted to remain in Canada. In such a situation, there is not breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada.

In Suresh v. _________, the claimant, classified as a Convention Refugee, appealed a decision that he be deported. Suresh was recognized as a Convention Refugee in 11 and applied for landed immigrant status. His application was denied based on security grounds and deportation proceedings commenced.

"The Minister [Elinor Caplan, Minister of Citizenship and Immigration] promised supporting regulations over the coming months, which will include a strengthened overseas refugee resettlement program, an expanded family class, new selection criteria to attract more highly skilled and adaptable independent immigrants, and the creation of an 'in-Canada' landing class for temporary workers, foreign students and spouses already established in Canada and wishing to stay."

The legislation intends to make the system work better for refugees by

1. Strengthening Refugee Protection Overseas Resettlement

What we are doing

• Amending the criteria for "ability to establish in Canada" to include social as well as economic factors.

• Pursuing agreements with NGOs to locate, identify, refer and pre-screen refugee applications in areas where refugees are most in need of protection

• Ensuring that people in urgent need of protection are brought to Canada within days

Why are we doing it

• To ensure that the need for protections is the overriding objective in resettlement from abroad

• To focus existing resources on areas where refugees are most in need of protection

. Facilitating Family Reunification of Refugees

. Faster and Fair Refugee Processing Inland

4. Front-end Security security check initiated when a person makes a refugee claim in order to catch criminals and people who present security risks at the start of the process and speed genuine refugees through the system

5. Admissibility Hearing

6. Pre-removal Risk Assessment

The legislation also intends to strengthen enforcement regarding refugees through

Penalties creating a new offence for people who misrepresent themselves

Exclusion from the Refugee Determination System barring access to serious criminals and people who present security risks in order to prevent abuse of the refugee protection system

Eliminating Appeals for serious criminals and people who present security risks in order to ensure that they can be removed without delay. Recourse of judicial review is still available with leave to by the Federal Court

Suspension of a Refugee Claim if he or she has been charged with a crime in order to prevent abuse of the system by people who come to Canada not because they need protection but because they intend to engage in crime(News Release 001)

Both the Act and the Regulations came into effect on June 8, 00. http//www.cic.gc.ca/english/irpa/news.html

Convention for Refugees (UN)A. For the purposes of the present Convention, the term refugee,, shall apply to any person who

(1) Has been considered a refugee under the Arrangements of 1 May 16 and 0 June 18 or under the Conventions of 8 October 1 and 10 February 18, the Protocol of 14 September 1 or the Constitution of the International Refugee Organization;

Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph of this section;

() As a result of events occurring before I January 151 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term the country of his nationality shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

Who qualifies as a refugee?

According to the Article 1 (A) of United Nation's Convention relating to the Status of Refugees, which came into force on April , 154, a refugee is a person who, "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

Sections E and F of Article 1 of this Convention state that the Convention does not apply to persons for whom there are serious reasons for believing that they have committed a crime against peace or humanity, a war crime, a serious not-political crime outside the country of refuge, or has been guilty of acts contrary to the purpose and principles of the United Nations

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