Prospects for narrowing the gap between domestic and international institutional and procedural safeguards in Canadian, American and Australian refugee protection decisionmaking

In the current context of increasingly restrictive state policies towards refugee protection claimants, academic assessments of the sufficiency of the institutional and procedural safeguards surrounding refugee protection decision making must be grounded in a careful, methodical review of the scope and content of international human rights norms.;International conventions guarantee protection claimants a hearing providing them a full opportunity to present their protection claims, a fair hearing before an independent tribunal and the right to enjoy an access to judicial remedies equal to that afforded by states to their own citizens.;A comparison of the refugee protection systems of Canada, the United States and Australia reveals that these states allow for the final adjudication of protection claims by decision makers insufficiently protected from executive influence, restrict the ability of refugee protection claimants to seek judicial review of protection decisions and employ procedures that deprive protection claimants of an opportunity to fully and fairly present their protection claims.;Only entrenched constitutional norms can forestall determined legislative efforts to restrict the rights of protection claimants. However, drawing on an unqualified conception of state sovereignty developed before the advent of contemporary international human rights law, courts have broadly construed the powers of government over the admission and removal of non-citizens. Canadian and American courts have read down constitutionally entrenched institutional and procedural rights as they apply to non-citizens.;Given hostile government attitudes towards protection claimants, gaps between domestic procedural and institutional safeguards and international guarantees may be bridged only if courts harmonize their construction of refugee protection statutes and constitutional rights with international human rights norms. The migration of international norms into domestic law may be facilitated in states whose courts adopt a particular conception of public law, which claims that the role of judges is to identify and give effect to fundamental societal values by interpreting, where possible, statutes and written constitutions in such a way as to ensure that government officials act in conformity with these values. Under this conception of public law, judges must construe refugee protection statutes and constitutional rights consistently with the human rights norms expressed in ratified international treaties because these are prima facie evidence of the existence of similar or identical fundamental norms in domestic law.