Asylum and the rule of law in Canada


The first part of this chapter provides an historical overview of the Canadian asylum process. The second part explores how international and constitutional law structures shapes and constrains asylum law in Canada. The next two sections discuss elements of the asylum regime through an enlarged conception of the right to be heard. In its traditional and limited iteration (audi alteram partem, or ‘hear the other side’), this right is familiar to any student of administrative law in the common law world. A somewhat figurative concept of the right to be heard is used here in order to consider different points in Canadian legal and geographical space where the asylum seeker’s audibility is enabled or muted. In particular, attention is drawn to the limits imposed by conventional legal doctrine on what will be, or can be, heard from the other side of a cultural divide, a hearing room, or a border. The conclusion contemplates a separate but related dialogue that has emerged recently, partly in response to the obfuscating noise and troubling silences in the existing regime.

Part one: the asylum seeker in the Canadian legal system

Canada is a settler society par excellence. Almost 20 per cent of the population is foreign-born, putting it right behind Australia as a country of immigration in empirical terms. Canada is also a country of immigration in the normative sense; official discourse celebrates immigration as constitutive of the nation.


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