Refugee claimant’s fate left to the whim of a single person. Is

Posted by admin on Jun 3rd, 2009

By Peter McKnight, Vancouver Sun. June 3, 2009

With the stroke of a pen, Immigration Minister Jason Kenney could allow Mikhail Lennikov to stay in Canada. That one person has such power might strike you as odd, but then again it was was one other person who, with the stroke of a pen, decided that Lennikov must leave. And that is the problem. Lennikov is, of course, the former KGB agent who sought sanctuary in Vancouver’s First Lutheran Church after a deportation order was issued. The failed refugee claimant, who has lived in Canada for 12 years, was declared inadmissible by the Immigration and Refugee Board in 2006, and on Monday, a federal Court refused to stay the order.

And after Kenney similarly refused a stay, Lennikov ran to his church, as countless thousands of people around the world have done before. For sanctuary is an ancient tradition: The Old Testament speaks of six cities that offered refuge to Israelites accused of wrongdoing, and sanctuary practices — for criminals as well as refugees — existed in ancient Greece, Rome, Egypt and Byzantium, and in Europe.

According to University of Windsor sanctuary expert Randy Lippert, secular authorities in England formally recognized the right to sanctuary for accused people in the Theodosian Code of AD 392.

This made a certain sort of sense, since the king’s word was law, and hence the church offered a kind of check against the whims of the king.

Sanctuary continued to be regulated in England for more than 1,000 years. But as the power of the state increased, and as procedural safeguards, including the right to be heard before an impartial tribunal and the right to appeal were implemented, sanctuary became something of an anachronism.

Consequently, King James I formally abolished the practice in 1624.

Sanctuary then went into eclipse, but in recent years a revived and revitalized sanctuary movement has arisen in many countries, including Canada. There are many reasons for this, chief among them being the influx of refugee claimants from war-torn Guatemala in the early 1980s, which led to changes in the immigration laws of both Canada and the United States.

The changes, however, were insufficient. Under the current law, refugee claimants must apply to the Immigration and Refugee Board, and if a hearing is granted, one person — not a board — hears their arguments. (Under previous laws, two or three people heard the application.)

If that one person decides against the claimant, there is little recourse, since there is no appeal. Claimants can apply for judicial review of the IRB decision, but it’s much more difficult for a court to overturn a decision on judicial review than on appeal, even if the decision is in error.

The lack of an appeal process drew the attention of the United Nations and the Inter-American Commission on Human Rights, which expressed concern about the absence of an appropriate judicial remedy. In response, the government made provision for a Refugee Appeal Division in the Immigration and Refugee Protection Act, which was introduced in 2001.

Yet to this day, the Appeal Division has not been implemented, and it’s doubtful it ever will be. Citizenship and Immigration Canada claims it isn’t necessary and will only cause further delays to the system.

The government therefore thinks it appropriate to hang the entire future of a refugee claimant on the decision of a single person. We have not come so far, after all, from the days when the whims of the king ruled the day.

And as long as our immigration practices continue to follow the rule of kings, refugee claimants will continue to seek sanctuary in the house of God.

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