Two-Cents Worth? The Role of the Courts and the Administrative Decision-Making Process in the Immigration and Refugee Board of Canada

Abstract

The relationship amongst institutions has continued to play a pivotal role in shaping the nature of policies central to citizens and non-citizens alike. However, the phenomenon of influence and power that institutions constitutionally wield over one another in administrative agencies has been an increasing issue that is largely under-explored. More so, is the issue of installing legitimate regulatory mechanisms that ensure and preserve democratic values and practices that hold government agencies accountable. This study explores the relationship between judicial and executive institutions by examining the degree of influence the courts exercise in decisions in the Immigration and Refugee Board of Canada. Using a precedent tracing approach, this study analyzes the presence and authority of Supreme Court decisions in the determination of refugee protection cases. As administrative bodies exercise a broad range of discretion and are loosely guided by ‘soft-laws’, it is unlikely that the courts would have a high degree of influence in such agencies due to an absence of obligation to do so. The shortage of judicial influence arguably offers a nuanced explanation to the inconsistent outcomes amongst board members and the absence of and requirement for a legitimate remedial mechanism.