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During
the media debate early fall 2009 on
reforming refugee status
determination, my funny brain has been
thinking about how compliance
with human rights obligations might work
out in Canada's refugee status
system. I reach the uncomfortable position
of finding a different model
from the ones others are proposing. First,
there is a right to asylum. This right
stems from the incorporation
into Canadian law of article 1, the
definition of refugee, from the UN
Convention relating to the Staus of
Refugees and from article 3, not to
be returned to a substantial risk of
torture, from the UN Convention
against Torture. Those qualifying are
offered asylum. Secondly,
I see an obligation to protect rights in
deportation - which may
preclude deportation. This stems from
articles 32 and non-refoulement article 33
of the refugee convention,
now supplemented by rights
from the CAT and from the UN Covenant on
Civil and Political Rights. I
think of CCPR rights like family
protection, no torture and freedom of
movement which arise from time to time for
asylum seekers facing
deportation. The UN treaty rights are
reinforced by comparable
obligations
under the Organization of American States,
OAS, human rights system. (1) a
formal hearing about the right
to seek asylum - via the refugee
convention definition
(2)
a formal hearing to adjudicate rights in
deportation - which includes an
opportunity to appeal a
refugee status decision. For
determining any right at issue, there
should be a hearing by an
independent and impartial tribunal. There
should also be access to
courts. In
Canada, the hearing about the right to
seek asylum before the
Convention Refugee Determination Division
of the Immigration and
Refugee Board in theory conforms with what
is required. The
adjudication of rights in deportation is
currently more than one
discretionary
process conducted by government officials.
Asylum seekers and some
other
non-citizens are blocked from the tribunal
qualified to hear such
matters as rights of non-citizens in
deportation - the Immigration
Appeal Division of
the IRB. The IAD could be empowered the
hear appeals from any
non-citizen about deportation - as did
it's predecessor tribunal the
Immigration Appeal Board. In
the US, the situation is reversed. The
right to seek asylum
"affirmative" hearing is
by government officials. The adjudication
of rights in deportation is
a defensive hearing where refugee status
can also be invoked before an
independent and impartial decision maker.
Access to an appeal body is unequal and
subsequent access to the courts
is difficult. TOP
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