Canada enjoys a favourable reputation for its relatively liberal interpretation of most elements of the refugee definition. In 1993, the Supreme Court of Canada issued the decision in Canada (Attorney-General) v. Ward (Ward). The judgment discloses the influence of the scholarship of James Hathaway, and of comparative jurisprudence. In return, Ward has also been cited extensively in other jurisdictions, particularly in the common law world. Ward resolved several controversial interpretive issues with respect to agents of persecution, unwillingness or inability to protect, burdens of proof in relation to state protection, the definition of a particular social group, the scope of political opinion, and dual nationality. In 1998, Pushpanathan v. Canada (Minister of Citizenship and Immigration) rejected an interpretation of the exclusion clause in the Refugee Convention Article 1F that would exclude from refugee protection an asylum seeker convicted of a criminal offence in Canada.
The courts have not been the sole promoters of progressive interpretation of the refugee definition. The IRB’s 1993 Gender Guidelines (revised 1996), have been hailed and emulated worldwide for their gender-sensitive interpretation of the refugee definition. The Guidelines confirm that forms of harm inflicted exclusively or mainly on women and girls (rape, female genital mutilation, forced abortion, sex trafficking, etc.) constitute persecution; that feminism or refusal to abide by imposed religious rules might constitute a political opinion or (non)religious belief; and that a particular social group may be defined by reference to gender or sexual orientation. The IRB also issued Guidelines on Civil War,58 which clarified that a civilian need not be personally targeted for persecution, as long as one is identified as a member of an ethnic, religious, national or particular social group that is generally at risk of persecution.
These examples validate Canada’s reputation for adopting relatively flexible interpretations of the elements of the refugee definition. That is to say, the Canadian jurisprudence and administrative guidelines incorporate the lessons of feminism on the ways that public power can be marshalled to perpetuate private oppression, and have recognized how civil war and ‘failed states’ have replaced communism as the triggering conditions for flight. An evolving understanding of the nature and scope of international human rights reverberates in the meaning ascribed to persecution and grounds of persecution. Cast in the language of audibility, Canadian refugee law lends a sympathetic doctrinal ear to the narratives of refugee claimants – once the story is heard and if it is believed.
It is these latter preconditions that are preoccupying. Canadian refugee law cannot be accused of deafness to the suffering of asylum seekers. Rather, the declining numbers of asylum seekers entering Canada’s refugee determination process and the declining acceptance rate for asylum seekers in Canada suggests that asylum seekers are increasingly kept out of earshot (so they cannot be heard) and decreasingly believed (so that, if heard, they are deemed non-credible). In other words, it is not the ‘law’ determining who falls within the refugee definition, but rather those who apply it (administrative decision makers of the IRB) and those who control access to the system (the government) who determine, in these two ways, whether and how an asylum seeker will be heard.
The policy makers’ motivation in preventing the access of asylum seekers to the refugee determination system is not difficult to fathom. If the number of asylum seekers exceeds whatever level is considered politically palatable, and the independence of the judiciary means that the interpretation of the refugee definition cannot be controlled, preventing access to the refugee determination system offers a means of managing numbers. As for the decision makers, the credibility of the asylum seeker seems to be the determinative factor in the vast majority of refugee claims. A jurisdiction may create doctrinal openings to recognize refugee status that other jurisdictions do not, but if the decision makers reject asylum seekers on grounds of credibility, the doctrinal doors are never reached, much less opened. It may seem anomalous that institutionalized scepticism about the credibility of asylum seekers could coexist with a relatively liberal approach to the substance of the refugee definition, but the norms guiding decision makers emerge not only from legal texts, but indirectly from political and institutional sources. Moreover, institutions do not operate on the basis of a singular rationality emanating from a directing mind; and divergent currents may operate simultaneously at different levels of a bureaucratic hierarchy or in different offices.
It is now useful to consider in more detail some of the ways in which the audibility of asylum seekers themselves (as opposed to their narratives) is regulated.
– Susan Kneebone, 2009. REFUGEES ASYLUM SEEKERS AND THE RULE OF LAW Comparative Perspectives. Cambridge University Press: New York.
Asylum and the Rule of Law in Canada : The Audibility of The Asylum Seeker in Law | |