Tribunals and Guidelines: Exploring the Relationships between Fairness and Legitimacy in Administrative Decision-Making
The objective of this paper is to address two questions: why do administrative tribunals such as the Immigration Refugee Board resort to developing guidelines, and what are the principles and values which legitimize these initiatives? The role of tribunals in policy-making and/or policy-implementing raises important questions. For example, to whom are tribunals accountable for the development and application of guidelines where the functions of a tribunal - especially the adjudicative functions - are intended to be independent of government?The authors seek to understand better the dynamics of tribunals’ role in the policy process. They propose a classification of guidelines based on the function they perform in administrative proceedings and provide an analysis of the normative framework underlying guidelines. The authors explore how a legal analysis of guidelines might shed on the theory and practice of public administration. The authors conclude that in the absence of a nuanced understanding of the legal status of guidelines, the relationship between administrative practice and the rule of law remains uncertain and unstable.
Humanitarian and Compassionate Applications: A Critical Look at Canadian Decision-Makers’ Assessment of Claims from “Vulnerable” Applicants
For many people who have made Canada their home but have uncertain legal status and are ineligible to apply for permanent residence through other channels, the Humanitarian and Compassionate (H&C) application is the only available pathway to permanent residence and stability in Canada. Applications for permanent residence on H&C grounds have become a key component of Canada’s immigration system and yet this pathway remains under-researched. Drawing upon extensive desk research and the preliminary analysis of interview data, this article addresses this gap in the scholarship by offering a critical analysis of the H&C program. In it, we begin by discussing the specific challenges that this highly discretionary decision-making process poses for vulnerable applicants and suggest areas for improvement. We then focus on H&C applications and decisions that directly impact children and explain why a change in the Canadian application of the best interests of the child principle is required. Finally, we consider two recent trends in H&C cases: the sharp increase in the number of applications and the increasingly high rates of refusal. Throughout this analysis, we highlight the negative repercussions the current system has on the most vulnerable categories of migrants and the need to better understand these phenomena.
Narrowing the gap by widening the conflict : Power politics, symbols of sovereignty, and the American Vietnam War Resisters' Migration to Canada
In this article, I consider how a second face or dimension of covert political power was used to deny legal immigration status to Vietnam War military resisters who sought refuge in Canada during the early years of the largest politically motivated migration since the American Revolution. Recently declassified historical records and interviews with former politicians and administrators reveal that the Canadian Immigration Department and its minister misled the public in advancing an official myth about the evolution of this migration. Until successfully exposed by persistent and innovative investigative journalism, the backstage use of political power kept American Vietnam military resisters who were seeking to legally immigrate defensively framed in a symbolic package that defined them as culturally unsuitable. Several thousand American military resisters lived illegally in Canada until conflict about their plight was successfully broadened and transformed into an effective collective grievance and claim under Canadian immigration law. Once the gap between Canadian immigration law and its practice was fully exposed, the conflict about this policy grew rapidly to include a number of cultural elite groups and a master framing of these American servicemen as unexpected symbols of Canadian sovereignty. A fully elaborated explanation of the collective transformation of sociolegal grievances into successful legal claims requires combined attention to the macrolevel interaction of political power and cultural symbolism