Transcript Division 4: Inadmissibility

IMMIGRATION & REFUGEE
PROTECTION ACT
Inadmissibility,
Detention and Removal
Mechanisms of
Deflection/Deterrence/Interdiction
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Visa requirements
Ineligibility of refugee claimants
passing through safe 3rd country (s.
101(e), 102)
Carrier sanctions on transportation
companies transporting
undocumented or improperly
documented migrants (ss.148-150)
Division 4: Inadmissibility
Facts constituting inadmissibility include acts or
omissions which there are reasonable grounds
to believe have occurred, are occurring or may
occur
Categories of inadmissibility:
34.
35.
36.
37.
38.
39.
40.
41.
42.
Security
Violating human or int’l rights
Serious criminality / criminality
Organized criminality
Health grounds
Financial reasons
Misrepresentation
Failure to comply with Act
Inadmissible family member
Categories of inadmissibility:
34.
35.
36.
37.
38.
39.
40.
41.
42.
Security
Violating human or int’l rights
Serious criminality / criminality
Organized criminality
Health grounds
Financial reasons
Misrepresentation
Failure to comply with Act
Inadmissible family member
Division 5: Loss of Status
and Removal
Officer has discretion to prepare report on
inadmissibility of permanent resident or
foreign national (s. 44)→ Minister
→Immigration Division
Where Immigration Division is not satisfied that
foreign national/permanent resident is
admissible, it shall make applicable removal
order (deportation, exclusion, departure) in
accordance with the grounds for
inadmissibility, as set out in regulations
Types of Removal Orders
s. 223-225
Departure: complies with 240(1)(a)(c) within 30 days of enforceability
Need not obtain authorization (IRPA s.
52(1)) to re-enter Canada
Exclusion: require s.52 authorization
to re-enter Canada within one or two
years of enforcement
Deportation: require s.52 authorization
to re-enter Canada any time
Enforcement of Removal Orders
Conditional departure order against refugee
protection claimant comes into force on latest
of the following dates:
 the day the claim is determined ineligible or 7
days after, depending on grounds of
ineligibility
 15 days after notice of rejection by Refugee
Protection Division if no appeal made, or by
Refugee Appeal Division, if appeal made
 15 days after notice of abandonment/
withdrawal of claim
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15 days after proceedings terminated because
of misrepresentation about eligibility or prior
claim
conditional order is for deportation if claimant
falls within certain categories of
inadmissibility
Circumstances where removal
order stayed include:
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for duration of stay imposed by IAD, court of
competent jurisdiction, or Minister (H&C,
generalized risk in country)
until refugee claimant’s judicial review options
are exhausted (time limits exceeded, leave
denied, application refused), except where
refugee claim is denied for ‘no credible basis’,
claimant is ineligible or inadmissible for
serious criminality, sojourns in US
to make determination under Pre-Removal
Risk Assessment s. 96-98
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unenforced removal order becomes void if
foreign national becomes permanent resident
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foreign nationals who remain in Canada
without authorization will be issued exclusion
orders
S. 44 Report forwarded to Minister who has
discretion to refer to Immigration Division for
admissibility hearing except where grounds of
inadmissibility are:
• non-compliance by permanent resident with
residency obligation → departure order
228(2)
• foreign national’s serious
criminality/criminality in relation to a
conviction → deportation order s. 228(1)(a)
• foreign national’s misrepresentation in
relation to vacation of refugee status →
deportation order (228(1)(b)
• foreign national’s breach of specific
provisions of Act → exclusion or
deportation order (depending on
breach) s. 228(1)(c)
• inadmissible family member → same
removal order as inadmissible family
member s. 228(1)(d)
Division 6: Detention & Release
ss. 54-61
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Arrest and detention with warrant of permanent
resident/foreign national who is inadmissible and
danger to public or unlikely to appear at hearing
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Warrantless arrest and detention of foreign national
(except protected person) where:
• Inadmissible and danger to public or unlikely to
appear at hearing
• Officer not satisfied as to identity of foreign
national
Detention of permanent resident/
foreign national on entry to Canada
• to complete examination
• inadmissibility based on security grounds or
violation of human/int’l rights
• Discretion to release within 48 hours
Mandatory review of detention by
Immigration Division
• Within 48 hours or “without delay afterward”
• Within 7 days thereafter
• Review of reasons for continued detention every
30 days thereafter
 Minister is taking necessary steps to inquire into
reasonable suspicion of security/human rights
inadmissibility OR
 Minister is of opinion that ID may be
established and detainee has not “reasonably
cooperated with the Minister by providing
relevant information” to establish ID
Regs. S. 244-250 list factors to be
taken into account when assessing
existence of grounds for detention,
and continued need for detention
• Flight risk
• Danger to public
• Person whose identity has not been
established
 Detention of minors is last resort,
must take into account best interests
of child
Mandatory conditions on release
from detention:
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Notify of change of address
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Surrender passport/travel document or
complete application for one (not to be
divulged to country of nationality if detainee is
refugee claimant)
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Abide by any discretionary conditions imposed
by officer or Immigration Division
Categories of inadmissibility:
34.
35.
36.
37.
38.
39.
40.
41.
42.
Security
Violating human or int’l rights
Serious criminality / criminality
Organized criminality
Health grounds
Financial reasons
Misrepresentation
Failure to comply with Act
Inadmissible family member
Health Grounds (s. 37)
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Inadmissibility based on danger to public
health/public safety, or excessive demand on health or
social services
First Draft of Regs (not in final version)
• Excessive demand (s. 32) = costs in excess of
average Canadian per capita health and social
service costs over a period of 5-10 consecutive
years after medical exam
or
• Demand that would add to existing waiting lists
and would increase the rate of mortality/morbidity
as a result of denial or delay in provision of
services to citizens and permanent residents
Does not apply to:
• spouse, common-law partner or child of
sponsor s. 24
• Convention refugee or person in similar
circumstances
• Protected person
Financial Grounds (s. 39)
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Protected persons exempted from
inadmissibility on financial grounds s. 21
Misrepresentation (s. 40)
Foreign national / permanent resident is inadmissible for
2 years for:
 “directly or indirectly misrepresenting or withholding
material facts relating to a relevant matter that
induces or could induce an error in the administration
of the Act”
• refugee claimants and protected persons exempted
s. 22
 being sponsored by person determined to be
inadmissible for misrepresentation (requires
Ministerial approval)
 refugee whose claim has been vacated
 losing citizenship status for fraud/misrepresentation
Non-Compliance with Act (s. 41)
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foreign national inadmissible for act/omission
which directly/indirectly contravenes provision
of IRPA
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permanent resident inadmissible for failing to
comply with any conditions imposed under
Regulations, or for failing to meet residency
obligation
Inadmissible Family Member (s. 42)
Foreign national is inadmissible if
 accompanying family member is inadmissible
 they are an accompanying family member of an
inadmissible person
 non-accompanying family member is inadmissible
Non-accompanying family member is
spouse/common law partner, dependent child in
specified circumstances s. 23
Criminality (s. 36)
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Conviction inside Canada of indictable or
hybrid offence
Conviction or commission outside Canada of
equivalent of indictable or hybrid offence
(determined on balance of probabilities)
• deemed rehabilitation 10 years after
completion of sentence or commission of act
s. 18
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Conviction inside Canada of two summary
offences not arising out of a single occurrence
• deemed rehabilitation 5 years after sentence served
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Conviction outside Canada of equivalent of 2
summary offences not arising out of single
occurrence
• deemed rehabilitation 5 years after sentence served
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Commission “on entering Canada” of offence
prescribed by regulation
Serious Criminality (s. 36(1))
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Conviction in Canada of an offence for which
• maximum term of imprisonment ≥ 10 years
or
• actual sentence of > 6 months imprisonment
Conviction/commission outside Canada for
offence for which maximum penalty in Canada
would be ≥ 10 years (balance of probabilities)
34. A permanent resident/foreign
national inadmissible on security
grounds for:
(a)engaging in an act of espionage or act of
subversion against a democratic
government, institution or process as they
are understood in Canada
(b)engaging in or instigating the subversion
by force of any government
(c)engaging in terrorism
(d)being a danger to the security of Canada
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engaging in acts of violence
that would or might endanger
the lives or safety of persons in
Canada
being a member of an
organization that there are
reasonable grounds to believe
engages, has engaged or will
engage in acts referred to in
(a), (b), or (c).
Terrorism (Suresh, ¶98) =
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any act intended to cause death or serious
bodily injury to a civilian, or to any other
person not taking an active part in the
hostilities in a situation of armed conflict
purpose of such act, by its nature or
context, is to intimidate a population, or
to compel a government or an
international organization to do or to
abstain from doing any act
Membership (Suresh, ¶108, 110):
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persons who are or have been
associated with things directed at
violence, if not violence itself
excludes those who contribute to or
become members of organizations in
ignorance of organization’s terrorist
activities
Security (ss. 14-16)
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Findings of fact by IRB, international
criminal tribunal, Canadian court
(made within their respective
jurisdictions), that a foreign national
or permanent resident has engaged
in terrorism, war crimes, crimes
against humanity, shall be conclusive
35. Violation of International or
Human Rights
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list of inadmissible senior officials
moved to regulations
37. Organized Criminality
(a) Immigration Act definition +
(b) engaging, in the context of
transnational crime, in activities such
as people smuggling, trafficking in
persons or money laundering.
Division 9
Protection of Information
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Examination on Request by the
Minister and the Solicitor General of
Canada
Detention
Consideration During an Admissibility
Hearing or An Immigration Appeal
Consideration During Judicial Review
Examination by Request of
Ministers
77. (1)
The Minister and the Solicitor
General of Canada shall sign a certificate
stating that a permanent resident or a
foreign national is inadmissible on grounds
of security, violating human or
international rights, serious criminality or
organized criminality and refer it to the
Federal Court – Trial Division, which shall
make a determination under section 80.
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No statutory trigger (cf. s. 40.1 of
Immigration Act)
Effect of referral to Federal Court is to
pre-empt or adjourn any proceeding
under IRPA (including refugee
determination) except application for
Pre-Removal Risk Assessment (PRRA)
under s. 112(1). (s. 77(2))
No timelines governing judicial
consideration of certificate
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Judge shall determine whether
certificate is reasonable and whether
the decision on PRRA application, if
any, is lawfully made (s. 80)
Effect of finding certificate to be
reasonable:
• Conclusive proof of inadmissibility
• Certificate = removal order that is in
force and may not be appealed against
• Determination of judge is final and may
not be appealed or judicially reviewed
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Judge shall protect confidentiality of
information upon which certificate is
based and any other evidence
submitted to judge if “in the opinion
of the judge, its disclosure would be
injurious to national security or to the
safety of any person” (s. 78(b))
similar provisions regarding in camera
hearing, non-disclosure of evidence,
and summary, to provisions in
Immigration Act
Exception to principle of nonrefoulement (s.115(2))
(a) inadmissible on grounds of serious
criminality and, in opinion of Minister,
constitutes danger to public in Canada
(b) inadmissible on grounds of
security/violating human or int’l rights/
organized crime, if Minister is of opinion
that person should not be allowed to
remain in Canada on basis of
 danger to security of Canada
 nature/severity of acts committed
Danger to security of Canada
(Suresh ¶88-90)
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poses serious threat
• grounded in objectively reasonable
suspicion based on evidence
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threatened harm must be substantial
• direct or indirect
• direct proof of specific threat to Canada
not required
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must be real and serious possibility of
adverse effect on Canada, (e.g. distant
events that indirectly create
possibility)
Standard of Review for Minister’s
opinion under s. 115(2)(b)
(Suresh ¶ 29-41)
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Applies to findings of danger to national
security and risk of torture or similar
harm
Patently unreasonable
• Arbitrary
• Bad faith
• Cannot be supported on evidence
• Failure to consider appropriate factors
• [violation of s. 7]
s. 7 and deportation to torture
(Suresh, ¶42-79)
“. . . The fundamental justice balance
under s. 7 of the Charter generally
precludes deportation to torture
when applied on a case-by-case
basis. We may predict that it will
rarely be struck in favour of
expulsion where there is a serious
risk of torture.”
Procedural Requirements for s. 115
determination
(Suresh ¶113-128, Ahani ¶ 24-26)
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Where refugee makes prima facie
case that deportation involves risk of
“torture or similar abuse”, duty of
fairness/s. 7 require:
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person “must be informed of case to be
met”
subject to valid reasons for reduced
disclosure, material upon which Minister
relies must be provided (including memos
containing recommendations)
individual must have opportunity to
respond, including whether continued
presence will be “detrimental to national
interest” [under ss. 34-37?]
assurances re: torture by state of
nationality inherently unreliable
Minister must provide written reasons for
decision
Torture (Schedule to IRPA)
ARTICLE 1 OF THE CONVENTION AGAINST TORTURE AND
OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR
PUNISHMENT:
1. For the purposes of this Convention, torture means any act
by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person
has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain
or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person
acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful
sanctions.
2. This article is without prejudice to any international
instrument or national legislation which does or may contain
provisions of wider application.
Detention (ss. 82-85)
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Warrant required for arrest/detention
of permanent resident named in s.
77(1) certificate if Minister and
Solicitor General have reasonable
grounds to believe PR is
• danger to national security
• danger to safety of any person
• unlikely to appear at proceeding or for
removal
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No warrant required required for
detention of foreign national
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Judge shall commence review of
reasons for continued detention of
permanent resident within 48 hours
and once every 6 months thereafter
[no provision for detention review of
foreign nationals]
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Permanent resident or foreign national may
apply to Minister for release to permit
departure from Canada
Foreign national may apply to judge for
release (with or without conditions) if 120
days have passed since s.77 certificate
upheld as reasonable and judge satisfied
that:
• foreign national will not be removed from
Canada in reasonable time
• release will not pose danger to national
security or safety of any person