TOPIC ONE: THE CONTEXT, LOGIC AND STRUCTURE OF …
TOPIC ONE: THE CONTEXT, LOGIC & STRUCTURE OF IMMGN LAW 1
INTRO 1
Why Immigration Laws? 1
Development of Immigration Law 1
CONTEXT OF IMMIGRATION LAW 1
IRPA S3 - The Objectives of the Act 2
Historical Context 2
Legal Context of Immigration Law 3
Social and Political Context 4
C. Dauvergne article (Appx 1) 4
THEORETICAL PERSPECTIVES – LIBERAL DEBATES AND CHALLENGES 5
Trebilcock Essay: 5
Carens 5
Walter 5
Galloway 6
Catherine Dauvergne 6
Appx 2 Theoretical Class Exercise 6
OVERVIEW OF THE PROCESS & STATUS OF THE PLAYERS 6
Immigrants And Refugees 6
IRPA 6
1. Citizens (& Indians under the Indian Act) 7
2. Permanent Residents 7
Loss of permanent residence status (Romans 2001, Canepa 1997) 8
3. Foreign Nationals 8
Temporary residents - Students, workers, visitors 8
Protected Persons, s. 95, & Refugees 9
Undocumented Migrants 9
PROCESS & SUPPORTING PLAYERS 9
Parliamentary Committee / Governor In Council 10
Citizenship and Immigration Canada (CIC) Minister & Delegates 10
Canada Border Service Agency (CBSA) 10
Immigration and Refugee Board (IRB) , p. 37 Chart 10
- Refugee Protection Division 11
- Immigration division 11
- Immigration Appeal Division (Most judicial, of the quasi-judicial) 11
- Refugee Appeal Division (not in place) 11
Federal Court and Federal Court of Appeal (FC and FCA) 12
Dilemma of Judicial Review 12
JUDICIAL REVIEW – ADMINISTRATIVE REVIEW 13
Dunsmuir 2008 SCC - Nature/standard/process/substance of JR 13
M.C.I. v. Khosa, 2009 SCC 12 14
Substantive Review of Discretionary Decisions 14
Baker v. MCI 1999 SCC (H&C - Pre-Dunsmuir) Hawthorne 14
Suresh v. MCI 2002 SCC (also pre-Dunsmuir) 14
Procedural Fairness (Suresh, Baker, Ahani, Chark) 15
CONSTITUTIONAL REVIEW 15
Singh v. MEI 1985 - S7, procedure + torture 16
Chiarelli v. MEI 1992 (S7, no right ^Reconcilable?) Nguyen 16
Suresh v. MCI, SCC 2002 (compare with Dadar) 17
Guzman v. MCI FC 2006 (S.15) ( 18
Charkaoui v. MCI SCC 2008 (torture + due process) 18
INTENATIONAL REVIEW 19
International Intersections 19
Individual Complaints 19
Dauvergne: Humanitarian Identity and Nation 19
Dadar: UNCAT (Committee Against Torture) Torture discussion 19
UN Human Rights Committee/Against Torture/Inter-American Commission 20
Tahir Hussain Khan v. Canada 20
Government Reporting - International obligations &/v. Charter (Baker) 20
Appx 3 - Exercise on Alice 20
TOPIC TWO: ADMITTING PEOPLE TO CANADA 20
TEMPORARY RESIDENTS – VISTORS, WORKERS AND STUDENTS 20
Sun Article 21
Requirements 21
Conditions of temporary residence Reg. 184 22
Extension and Restoration of Status 22
Breach of conditions work/study permit 22
Study Permits 22
Wang v. Canada 2006 FC 22
Kim v. Canada 2004 FC 22
Work Permits 22
Temporary foreign worker program - Expediant Policies 23
Walzer – Guest Workers & Membership 23
Ruhs – The Case for Foreign Worker Programs 24
Macklin – Foreign Domestic Workers in Canada - Live-in Caregiver (+Voluntad) 24
PERMENENT RESIDENTS – ECONOMIC CLASSES 24
Selection of Economic Immigrants [Skilled and Business] Reg 70-109 25
Wroswick/Hollick (& Heibert() – Declining Earning & Remedies + Riding two horses 25
Skilled Workers Class Criteria, Reg 75 - 83 26
Dogra - High School Councelor 27
Sheik - Assessing application - Onus to put best case forward 27
Chen- bribe, substituted evaluatin 27
Business Immigrants, Reg. 88 28
Rahim v. MCI 28
Other Economic Classes 28
Relationship b/w Immigration and Economic growth 29
Callacott – Looming Labour Shortage and Img? 29
Tolley – Skilled Worker Criteria 29
Heibert- Poli Econ of Migration in Canada 29
Appx 4 Eg. Beth & Hideo (like-Q on exam*) 29
PERMANENT RESIDENTS - FAMILY CLASS (REUNIFICATION) 30
Family reunification - Sponsorship or Include in Application 30
FAMILY CLASSES, Reg.116-137 31
Requirements & Exclusions 31
Bona fide relationships 32
Sanichara v. MCI 2005 (Look to obvious facts) 32
Salh 1988 (prior deceit irrelevant - relationship in and of itself) 32
Processing 32
Remedies if an application is refused 32
Spouse (Bhatti) 33
CL partner v. Conjugal (Macapagal, Caron) 33
Sponsorship Application (incl. processing times) 34
Parents & Grandparents (Vaziri, Vong) 34
Dependent Child (Sandhu) 34
Inadmissibility (and effect) 34
De Guzman 2005 FCA (spent a lot of time here) 35
Audrey Macklin “Public Entrance/Private membership” 36
Guzman v. MCI 2006 FC 36
TOPIC THREE: REFUGEE PROTECTION 36
REFUGEES: INTERNATIONAL CONTEXT ss. 3, 3(2), 96-98, schedule 36
UNHCR - Lesley Stalker Assistant Legal Councel 36
Historical Background 37
Definition of refugee from Art.1A(2), ’51 Refugee Convention: 37
UNHCR [General Assembly] has 2 big arms: 38
Revolt & Reform Agenda for Protection ('Crisis and Cure' Hataway) 38
Non-Refoulement 39
Reality 39
Safe Third Country Agreements 40
Canadian Council for Refugees v. MCI, FC/CA on STCA 40
REFUGEE PROTECTION IN CANADA - INTODUCTION 42
Convention Refugees and Persons in Need of Protection 42
“Protected persons”, ss. 95 - 116 43
How to make a refugee protection claim in Canada: 43
Hearing before the RPD -- p. 539* + Charts in Supp. (Crepeau - The Complexity) 43
After RPD hearing 44
Suresh 45
ELEMENTS OF THE REFUGEE DEFINTION 45
CONVENTION REFUGEE 45
Canada (A.G.) v. Ward 45
1. Refugee must be outside Country of Nationality/Residence (Williams, Kemel) 45
2. “Well-founded fear” (of persecution) (Ward, Carillo) 46
3. Unwilling or unable to avail self of State’s Protection (s.108(4)) 46
> Internal flight alternative (x state protection) (Thiruavukkarusu) 46
4. Fear of "Persecution" (Bobrik, Zolfargh, US Military, China Cheug, Salibian) Agents, Gender-based 47
5. Grounds for Persecution - Nexus 48
- Race 48
- Nationality 48
- Religion 49
- Political Opinion 49
- Membership in a Particular Social Group (V.O.G., Ward, Chan, Mackland) 49
EXCLUSION CLAUSES 49
Article 1E - Last resort provision (Shamlou, Kroon) 49
Article 1F – Acts so grave, person is rendered deserving (Jayasacera) 49
Overlap of criminal/political purpose 50
Exclusion Clause 1F(a) (Sivakumar, Moreno/Ramerez) 50
Exclusion Clause 1f(c) (Pushpanathan) 51
Exclusion Clause 1F(b) (Jayasekara) 51
PERSON IN NEED OF PROTECTION, S. 97 51
Appx 5 Problems – p. 651-654 52
PRRA AND HUMANITARIAN ADMISSIONS 52
PRRA Application and Stay 52
Requirements for PRRA (Raza, Cerilo, Ferguson, Lye, Vagra) 52
HUMANITARIAN ADMISSIONS, S. 25 54
Key legislative Provisions 54
Baker v. MCI (() 54
Hawthorne v. MCI (judicial review) 54
Legault v. MCI 55
TOPIC FOUR – KEEPING PEOPLE OUT 55
INADMISSABILITY TO CANADA AND REMOVAL ORDERS 55
Inadmissibility (upon application) 55
Inadmissability - Loss of status, s. 44(1)(2) and 45** (subject to a lot of caselaw) 55
> Immigration Division Appeals on Loss of Status 56
Security, s. 34 56
What is ‘Terrorism’ (Suresh) 57
What Involvement is sufficient 57
Who is a ‘member’ (Poshteh) 57
S. Aiken article - Critique 57
Human Rights Violators (IRPA, s.35) 58
Mugesera 58
Criminality – Serious, other, organized 58
Serious Criminality, s.36(1), 3(3) 58
Other Criminality (General) s.36(2), 36(3) 59
Some equivalent criminality issues 59
Li 59
Saini 59
Organized criminality, s. 37 59
Chiau 60
Excessive demand – Health conditions, s. 38 60
Deol/Leg Medical services 60
Hilewitz Social Services 61
Financial Reasons, s. 39 61
Misrepresentation, s. 40 61
Non-compliance with IRPA (S.41) 61
Family Members, s.42 61
Appx 6 - Fact Scenario
HUMAN TRAFFICKING PRESENTATION [John Ferguson], ss. 117-121 62
[As relates to Refugee Protection/Immg Enforcement] 62
Perrin – policy article 62
V.O.G. (Re), [2006] 62
C. Dauvergne Ch 5 “Trafficking in Hegemony” 63
REMOVAL AND DETENTION 63
Gibney and Hansen - What, when, why?
Removal Orders s.48 49 (Sahakyan, Pancharatnam) 63
Formal “Detention”, s. 54-61, Reg. ss.224-250 64
Detention Process, Review, & Factors 64
Charkaoui 2007 SCC - security certificate + detention review; s. 33, 77-85 65
Almrei, Harkat and Jaballah 66
Deghani 1993 SCC - Interview 66
** Exam -- incorporate factual and/or legal issue(s) raised in the JR. (mini-notebook) 66
TOPIC ONE: THE CONTEXT, LOGIC AND STRUCTURE OF IMMIGRATION LAW
INTRO
Why Immigration Laws?
THE MOVEMENT OF PEOPLE ACROSS INTERNATIONAL BORDERS
• Freedom of Movement
• Altruism (media image)
• Self interest (labour market gaps)
• Sovereignty of the State to choose (fundamental)
• Right to asylum (competing need of the individual to the state)
• Humanitarianism (more than altruism, and less than a right)
Development of Immigration Law
Magna Carta – Article 41, 1215
“All merchants shall have safe conduct to go and come out of and into England... for purposes of buying and selling, free of illegal tolls, in accordance with customs..” - Intricate relation with economic and commercial concerns
R. v. Governor of Pentonville Prison - Lord Denning
- No CML right to enter or immigrate, except as permitted by the State, and crown can impose regulation as it sees fit
Canada (MEI) v. Chiarelli, & Medovouski
“The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. At CML an alien has no right to enter or remain in the country” – Sopinka J. 1992
• Reaffirmed – No CML right to enter or remain in a country (alien)
• No right claim, short of citizenship
• The courts have consistently held that immigration is a priviledge not a right
• See also: Medovarski v. Canada (M.C.I.) (2005)
YET
Where there is significant risk at issue, perhaps it’s a rights claim, and state can’t just do whatever it wants.
( Singh v. Canada (MEI) – Challenge on basis of S7, risk of their life and personal security
• “Given the potential consequences for the appellants of a denial of that status if they are in fact [convention refugees], it seems t me unthinkable that the Charter would not apply to entitle them to fundamental justice in the adjudication of their status” - Wilson , J.. 1985
• Crown – But governmental sovereignty – Court rejected the utilitarian considerations; found rights considerations to have a stronger claim.
Both the domestic and international jurisprudence suggest that torture is so abhorrent that it will almost always be disproportionate to the interests on the other side of the balance, even security interests. This suggests that, barring extraordinary circumstances (not yet defined), deportation to torture will generally violate that principles of fundamental justice protected by S7 of the Charter
Srech v. Canada (MCI) (2002)
“The notion of refugee law as a rights based regime is largely illusory”
- James Hathaway
“The refugee’s role is a humanitarianism claimant seeking the mercy of a nation. A claim for compassion does not effectively function as a right”
- Catherine Dauvergne.
Class two/three
CONTEXT OF IMMIGRATION LAW
( Historical Legal & Socio-economic
IRPA S3 - The Objectives of the Act
• Distinguish immigration and refugee objectives; & the application.
• All rules are contextualized within this section.
Historical Context
1775 - 1872 Regulating entry
• Prior to this, not many rules – context of Civil war and the loyalists
• Distinguished “aliens” and others
o Eg 1873 – registry of information relating to aliens (name, rank, occupation and previous country of residence – or must leave)
o Objective – distinguish “the others”
• Concerns about immigrant burden (risk)
o Treason or libelous acts
o Fund to pay for indigent immigrants until they can support their own (economic base)
o S 95 – Rules around agriculture (to colonize and establish here)
• Classes of those whose entry is prohibited
o Idea that there is actually people who are simply undesirable, where entry should be prohibited (criminal or viscous classes)
o Later added chronic alcoholism, illiteracy, illegitimacy and attempted suicide.
o Poor and disabled singled out for being a “public charge.” (1930 esp.)
1878 – 1918 Race based rules
• BC was at (-) cutting edge here; tried to pass laws over and over to restrict Asian immigration (very bluntly so); head tax, prohibition outright, literacy or language requirement; Chinese head tax; continuous journey requirement and landing money
• Blacks were actively discourages (unsuitable for the climate + India, agreement to restrict Japanese).
• Canada v. Singh; re: Munshi Singh (p. 16)
o Unsuccessful BC appeal; the balance were sent home
o Order in council required individuals come to Canada in one continuous voyage from Asia (cannot stop anywhere)
o Further: No immigrant of the Asiatic race shall now land in Canada, unless they have at least $200; CVR explicitly allowed this (minimum amounts varied according to race).
o Terms could be race based (unfair or whimsical) because Canadian North American Act allowed for the creation of any such rules on immigration – within the sovereign power (Even includes British Subjects); Not unconstitutional or Ultra vires. Applicant is not singled out in having to meet requirements of the Act.
o Also reasoning – Rule is here to prevent internal dissent; maintain assimilation and uniformity in the country. “The better classes of the Asiatic races are not given to leave their own countries – those who become immigrants are undesirables; Different racial instincts and character in proper place of residence; where customs are not in vogue, destructive to the well-being of society and against the maintenance of Peace, Order and Good governance.
• Restriction still exist – language, employment background, education etc.
• Provision favouring Europeans’ sponsoring relatives retained until 1967.
1919 – 1945 Immigrant classes
• 1923 Order in council prohibiting entry of all except SIX defined classes of immigrants (opposite approach)
o 1872 – Began selecting “desirable classes of individuals”
o Agricultural, farm laborers, female domestic servants (still have), wives and children under 18 of those resident in Canada (family class - still), US citizens whose labour in requires, British with need for self maintenance.
o Nothing of refugees or asylum seekers
• NO distinction b/w “refugees” and “immigrants”
o Refugees admitted on a situational basis (denied to jews for those seeking asylum during the war, and intense Japanese discrimination.)
o After the war, restrictive laws continues due to fear of communism.
o 1951 UN Convention on the Status of Refugees – Canada didn’t sign until 1969 when the convention became more broad
o Law didn’t change to implement the idea of refugees having special immigration rights until 1975
1969 – Now Refugees and immigrants
• Distinction refuges and immigrants
o Previously only b/w loyalists, and situational refugees
• Distinction between visitors and immigrants
• Immigrant class: economic and family
o Refer to criminality, desirability based on economic and social factors; maintain many themes from before
o Protection regime
o 1909 – Ports of entry were established
o 1967 - Point system for selecting immigrants according to their skills, education, and work experience introduced.
• 1978 Immigration Act aimed to systematize and rationalize the law
o Specified general demographic, economic, and humanitarian aims.
o It’s continues reformulation in a somewhat haphazard manner in response to publicized events continued until 2001’s current act.
• Impact of the Charter of Rights
• Still Questions of systematic discrimination
o Impact on immigrants and refugees from the South
o Eg. Canadian visa posts around the world, and allocation of resources biased against the South – Direct impact on number of applications that can be processed in a timely manner
o Direct impact on number of applications that can processed (effectively a quota)
o Explicit favouring of young, healthy, skilled and educated (X Women in the South – denied access to education, training and employment opportunities)
o Thus most women come sponsored and men as independents
o Maintenance of a ‘head tax’ – “right of permanent residence fee” – disparate impact on immigrants from some pars of the world.
o Visa requirements on nationals of certain countries (less on “white” countries)
o Identity docs – harder for refugees
Legal Context of Immigration Law
International
• International Principles and contained in domestic law
o S3 Application (f) - Radical provision – “complies with international human rights instruments to which Canada is signatory”
o De Guzma, Okoloubu FCA
• What rights exist?
o At a minimum, turn to the binding instruments to determine rights
o EDA, trafficking protocols, CRC, etc.
o Sovereignty
o Refugees
o Nationality
Domestic/National
• Constitutional setting: Federalism and the Charter of Rights
o Shared between provinces and federal government
o More emphasis on the Provinces right now - Provincial nominee program; Quebec nominee program (always had a special place)
o S3(3) expressly talks of Legislation as subject to Charter of Rights.
• Administrative law: separation of powers and the role of judicial review
o Cabinet makes decision (legislation and regulations), then the law is further defused by policy and operational decisions; while the courts retain the power to say process and rules are unfair or contrary to the charter or x’s jurisdiction
• Citizenship
o Right of the state to define citizen
o Dual citizenship? Should this exist? wide debate.
Aboriginal Law
• First Nations, first borders – what are the borders, who controls them? They are not recognized by some aboriginal peoples
• A the centre of membership question
• Watt v. Canada, (1998) 169 D.L.R. (4th) 336 (FCA)
o US citizen with a criminal record – asserted right to cross the border based on his aboriginal connection. Had crossed back and forth frequently in the valley
o Not registered under the Indian Act; connection to the arrow lake band which had been found to be extinguished
o Court of appeal recognized the possibility of a right, apart from the Act, which must be in compliance with the Charter
Social and Political Context
• Globalization
• National identity
o 1/5 in 2006 were foreign born
• Role of the executive in immigration
o Operations Manuals, cic.gc.ca
• Immigration as a security issue
o 3(1)(h),(i); 3(2)(h)
C. Dauvergne article (See 2)
• Relationship between sovereignty, migration and the rule of law; Executive crack down v. Human rights
• Borders = accepted by liberals (only, open or closed?); people remain nationalized; sovereignty/membership remains a precursor to rights/justice
• Control over movement of people has become the last bastion of sovereignty – loss of control has lead to a variety of ‘crackdown’ measures
o Fear of large scale migration; Moral panic – economic and security considerations, us v. them.
• Refugee Law & Non-refoulement stands as a beacon as states continue to shy away from rights, incl. those of refugees
o Threat – though of minor proportions; Convention lack power to upset migration laws + nations backing away w/o consequences.
o Pure ‘illegals’ constraint – makes people think of a violation; welfare states benefits to asylum seekers - Crackdown as a strong assertion of sovereign control.
o [US-Them divide, have-nots hoping to gain], bogus refugees term ~ Refugees lumped in, but more sympathy
• Strong deference of judiciary to executive + scant impact of the Charter.
• Selection as reflecting a Nation’s values: of the best and the brightest, family reunion, cultural preferences or humanitarian preferences.
o More available for those with more, less for those with less. Inequalities (, exclusions are underscored.
o Premised on a nationalized view of economies and a dated understanding of migration categories (Brain drain, bettering economy from a national stand point, rather than individual).
• IN human rights have made few inroads, now Rule of Law may be emerging as a counter to the executive free reign (?)
o need to define self in sovereignty as a great barrier
o procedural fairness etc, give scope to get outside the executive and the state. Gives a place to exert a claim for fairness to have case heard.
▪ [article may be grasping at the idea of procedural hope, neglectful of substantive importance]
▪ Cosmopolitan sovereignty/democratic law?
o ‘law of humanity’ overtaking the q’s of the rule of law (refugee matters as separate from migration matters?)
▪ Human rights are still dependant to the venue in which they lay claim
▪ Capacity to ensure stability and predictability and its need to be adaptive and responsive
• *Backlash of human rights – as they blossom in a country, become more restrictive for those who can access these.
Class Three
THEORETICAL PERSPECTIVES – LIBERAL DEBATES AND CHALLENGES
• Seminar Type Discussion of Readings & Fact Scenerio
Trebilcock Essay:
• Human capital – he says this has to do with economics, not morality or anything.
• Brain drain – when a country loses it’s most educated workers.
• T. says that it’s made up when the workers send money back home in the form of remittances.
• BUT: Remittances form a dependent economy – the number one form of income in the Philippines is Remittances.
• T. proposes we get rid of the model we have and make one of private sponsorship – people get sponsored so that they don’t just come and drain the social services.
• Problems:
o If we make the decision about immigration on a cost-benefit analysis, what if that changes? Do we stop at that point?
o Aren’t we talking about people here? Cost-benefit analyses just don’t seem right.
o Also, on p. 51 talks about how we make money off them – he really looks at them as lesser people it seems.
o Where does morality and stuff come in on this analysis? Nowhere.
• Banasfesh is open to this kind of argument, but guest speaker hates it.
Carens
• Promotes the case for open borders based on individual morality and liberalism. He takes 3 different liberal angles and gets there:
• Robert Nozick: property theory – individuals choice to bring people in or reject them.
• Utilitarian argument: Cost/benefit based on the whole world, not just citizens - he says if we look at cost benefit analyses like above, you have to look at everyone’s, not just those in the insider country. Based on this, it is moral to have open borders.
• Rawls: Justice is fairness – we should choose our system based on a ‘veil of ignorance’ – what would you want out of this just society if you didn’t know anything about your race, class, gender, etc. how would you choose a society?
o He says it would be an equal society, because we wouldn’t know where we’d end up.
o Equality and inequality would only happen where it is for greater benefit
o Rawls finds a closed border would prevail (citizen perspectives).
• Carens takes this and says that under a veil of ignorance you would choose a system of open borders (tied into equality and Rawls reasoning, veil as analyzed from a global perspective, not citizen).
Walter (won’t read next class)
• Takes a communitarian perspective, as a value (still liberal)
• P. 61/62/79/96
• Argues that closed borders in a community are necessary to maintain distinct character; and justice.
• Membership in community defines who we are and the character of that community – it is the right of a sovereign to self-determination.
o Liberalism requires *self determination.
o Membership is the primary good bestowed by a liberal nation (before q’s of justice)
• Exception made for situations:
o Mutual aid and Dire need (created a duty on us)
o Where won’t dilute everything
• Otherwise, closed borders are quite moral.
Galloway
• Disagrees with Walzer [Walter differs as communitarian], and counters Carens from another angle – uses Rawls against him.
• Rawls – argued for closed borders under a veil
• Didn’t imagine veil properly
• Open borders restrict individual’s own autonomy – people wouldn’t pick the scenerio that restricts their autonomy (obligation to help others would restrict their autonomy)
• He says though that if we do decide to open our borders, it must be done so in a non-discriminatory way. He uses a human dignity model much like the current s. 15 jurisprudence on the subject.
• Immigration should at least in part be needs based
Catherine Dauvergne
• Immigration just doesn’t work in liberalism
o It doesn’t lye in the moral realm of liberalism, but in amoral ground
o Not wrong, or immoral, but can’t attach morality
o Can not be critiqued by an accepted notion of good, and therefore any liberal conceptions of justice
• Rather – it’s based on Humanitarianism
o Derived from the little exceptions in Immigration laws
o Open concept = no consensus.
• Moral vs. Humanitarian argument. The moral claim is from liberalism and there is a moral imperative, whereas the humanitarian claim is from compassion. They are quite different.
• We have to stop talking about immigration from this liberal framework, as it often doesn’t work.
• The truth is, it’s not moral, it’s about politics.
CLASS EXERCISE:
Walzer:
• He would disagree with proposal 1 – he’s big on kinship and family.
Galloway:
• He thinks there should be a needs-based exemption, so the blanket rejection would be wrong. Also, you can’t do it in a discriminatory way. If there’s a discriminatory effect, then he wouldn’t like it.
Class Four – Side of the People
OVERVIEW OF THE PROCESS & STATUS OF THE PLAYERS
( Immigrants And Refugees
IRPA
• Framework legislation – sets out general terms, rules governing admission, terms of residence, removal and status of non-citizens
o s.3 “Objectives and Application”
• S.2(2) “Act” includes Regulations - Most content now left to the Regs (passed by cabinet)
• Supplementing policy and program manuals (Citizenship and Immigration)
o Not law, non-binding, but effectively guide government official Im interpretation and application of the above.
• Other source for interpretation – International law, Hansard (House of Commons eg.), Regulatory assessment…
Sections
[Not closed sections, but well organized]
ss 1-10 preliminary material
• a few definitions, objectives, federal-provincial agreements
Part 1, ss 11-95 – Coming to Canada
• pre-entry, examination, entering and remaining, acquiring status, inadmissibility, loss of status and removal, detention and release, rights of appeal, judicial review, protection of information, general provisions
Part 2, ss 95-116 – Refugee Protection
Part 3, ss 117-150 – Enforcement, Keeping people out
• arrest, criminal consequences
Part 4, ss 151-186 – Immigration and Refugee Board
Part 5, ss 187-275 - Transitional and Consequential
• Where IRPA replaced the former Act in 2002
Contextual interpretation “The words are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme fo the Act, the object of the Act, and the intention of Parliament”
- Driedger, cited by SCC in Medovarski
How did they get where they are today? (Where are they?)
Re: IRPA
• IRPA, ss. 2, 12, 19-22, 27, 46-47
• IRP Regs, ss. 70-72, 179
• The BIG exceptions: IRPA ss. 24 and 25
1. Citizens (& Indians under the Indian Act)
• Special Rights under the Charter – S 6(1) of Charter
o mobility rights – unconditional right to enter and leave
• Citizenship is defined under the Citizenship Act
o Citizenship is unconditional
o Though the Act is subject to change from time to time as any other legislation.
o Generally can’t take away citizenship that is already vested, but can change future acquisition.
• S. 19 of IRPA– right to enter and remain
o Builds off charter
o No discretion of border officers – May be subject to Aboriginal rights to enter an remain (see: Mr Watt’s, case still outstanding)
• Also have other special rights, mostly to do with sponsoring
>Must apply to visa office, and fit into one of 12 classes
2. Permanent Residents
• S. 21 How to become a PR:
o Apply for permission to acquire that status in conformity with regs
▪ Province may be granted power to select PR
o Indicate: Refugee, family or economic class (icl. Immediate fam)
o must meet criteria; and must not be inadmissible (S. 12 classes note kinds of immigrants we’re looking for)
• S. 20 Must apply outside of Canada (at office in country you’re residing), and requirements are met once you are in Canada (PR Visa)
o Temporary resident equivalent is s. 24
• S. 28 Residency requirement
o No criminal/security reasons, 730 days/5yrs present in country
o IRB Appeal allowed (with criminality exceptions)
o Regardless of physical time spent in Canada – H&C considerations (including that of the child), s. 25
▪ The minister shall consider requests of a person who may be otherwise inadmissible (pressure valve on specific classes)
• S. 27 Permanent resident status is conditional
• S. 46 PR status can be lost under IRPA
o Acquiring citizenship
o Loss upon deportation
o Failure to comply with Residency requirements
o Automatic loss if refugee status is vacated
• S. 19 Right to Enter and remain in Canada
o PR Card is presumptive evidence of permanent resident status
o How far can you go at the port of entry here?
• Right to move between the provinces (foreign workers program create different challenges from province to province)
• Other rights: work and study in Canada, sponsor immigration of family members, income assistance, health care, after 3 years residence can become citizens
Loss of permanent residence status
Romans v. Canada (2001)
• Schizophrenic – H&C grounds for him to stay?
o Had criminality restrictions
o Appealed loss to board – unfortunate, but on balance appropriate for him to loose permanent resident status
o Court took a hands off approach – Did the board do their analysis (in accordance with PFJ)? -- Yes.
Canepa v. Canada (1997)
• Complaint to UN Human Rights Committee under International Law
o Was a very long-tem resident of Canada – thought he was a Canadian citizen, found out he wasn’t when contacted by authority
o Came to Canada with whole family when he was 5
o Significant criminal record – removal order against him
o Argued right to remain in his own country 12(4), arbitrarily interference w/ fam 17, 23 ~ Covenant of Civil and Political Rights
o Cruel and inhumane/degrading punishment
• Majority
o Create a hierarchy of family
o Not arbitrary deprivation because done in accordance with Canadian law (refers to process – done in a fair way)
o Public interest and safety
• and Minority
o Expanded the definition of citizenship, and said Canada is where he belongs – de facto citizenship claim
o “own country” must be determined on a case by case basis
3. Foreign Nationals
• Not a Canadian citizen, PR, incl. stateless persons
Temporary residents - Students, workers, visitors
• Temporary residents have right to enter and remain for the period for (only) which their temporary stay is authorized (ss. 20, 22, 47)
o Visitor Class, worker class, student class (will also require work/stuffy permit)
o Must apply for a visa at the port of entry
▪ Reg. 190 Exemptions: US etc., granted temporary status at port of entry
▪ ( Shall be granted so long as person satisfies officer they will leave at the end of the period, and not be inadmissible
▪ s.24(3) allows officer to issue visa where inadmissible, but justifiable
o Very difficult to modify genuine-ness (moral panic – ie. Regarding bogus educational institutions)
o Canada doesn’t really control exit of these individuals (may be a more operational/practical problem)
• May be entitled to become a PR (reside here for 3-5 yrs) or may apply for Refugee status
• Temporary resident status is conditional and may be lost (s. 47)
o Expiry – may apply to renew before this date to reinstate status in time (regulations, s. 180)
o If found not to be in compliance with another part of the act (interesting difference in how 46/47 are worded)
▪ Determination by officer for non-compliance > Generally distinction w/o a difference; order made immediately with no time lag.
▪ Ie. These have less rights than permanent residents
Protected Persons, s. 95
• Convention refugee – s. 96
o Person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.. has had to flee their country, and given protection by Canada
• Person in need of protections – s. 97
o Person who cannot return to their country because of a danger of torture, a risk of cruel/unusual treatment or punishment, or a risk to their life – thus given protection by Gov of Canada (limits)
• S. 98 – Exceptions - Article 1 E & F
• Decided by - special immigration board, or immigration parole officer, or issued special visa, and upon entry automatically becomes a refugee/protected person
• S. 19 No right to enter Canada
• S. 21(2) Usually are eligible to acquire PR status (apply per Reg. 175)
• May otherwise be inadmissible
o Can be claimed inadmissible and still become a resident (minor criminality, and medical inadmissibility, regarding family members, misrepresentation)
o W/o right – people may lie to obtain entry and escape their conditions. This may thus be forgiven
• Ss. 108-109 can lose protected person status (vacate status)
• S 115** - Cannot be expelled from Canada to a place of risk (non-refoulement)
o Remain, but not Enter (Mobility)
• Other Rights (So long as a removal order can’t be enforced): have a right to obtain work, study permits (at foreign national tuition rates), health care, income assistance.
o Enforced v. enforceable
Undocumented Migrants
• Basically no rights (to work, study etc.)
o Efficiency and profit makes these people economically attractive
• 20,000 – 200 000 people
• Different for persons who were originally documented
Class 5 – The Authority side
PROCESS & SUPPORTING PLAYERS
• Governmental
o Department of Citizenship and Immigration Canada (CIC)
o Canada Border Services Agency (CBSA)
o Immigration and Refugee Board (IRB)
o Federal Court and Federal Court of Appeal (FC and FCA)
o Department of Justice (DOJ)
▪ Mandate
▪ Mission
▪ Values
▪ Department of Justice Act
• Non-Governmental
o Immigration Lawyers and Consultants
o Organizations with an opinion (eg. Canadian Bar Association, Canadian Council for Refugees, Fraser Institute)
o United Nations High Commissioner for Refugees
Parliamentary Committee / Governor In Council
• Standing Committee of the House on Citizenship and Immigration
• GIC makes IRP Regulations
• Certain IRP Regulation are subject to Parliamentary input (IRA, s. 5)
• Canadian Council for Refugees v. M.C.I., 2008 FCA 229
o What Is the role of the Court here?
o Regs aren’t unconstitutional, but on another set of facts, may be applied in an unconstitutional manner (open door)
Citizenship and Immigration Canada (CIC)
• Minister of Citizenship, immigration and multiculturalism (Jason Kenney) + now, minister of public safety
o P. 32 – list of Title for those responsible for immigration
• Agency on the government side in cases we read “…v. Canada (M.C.I.)”
• Central bureaucratic organization in charge of bringing people to Canada, and granting them status once here
o Applications for all categories of permanent and temporary residents (in-Canada and overseas) – processes visas/docs
o Citizenship applications and actions to revoke citizenship
o Preliminary screening for asylum seekers in Canada – decides who to refer to IRB to apply for refugee protection
o Administers resettlement prgs (refugees outside Canada)
• CIC policy-makers create the policy (cic.gc.ca “Policy and programs Manuals”). Includes policy applied by CIC and CBSA
• Planned spending in 2008-2009: $1,318,600,000 (1.3 Bil)
• Immigration Officers and Minister’s Delegates
o S.6 – Minister delegates power to those responsible for decision making
o Responsible for first-level decisions on visas and application to immigrate
▪ Wide level of discretion in the interpretation and application of IRPA
▪ Reasons informing decisions not always revealed. Values, policies and ideologies of the particular decision maker as infusing the exercise of discretion = worrisome.
o Engage in “facilitation” side of immigration
o Enforcement (removal) was taken from CIC in 2002, and granted to the Canada Border Services Agency (CBSA)(
Canada Border Service Agency (CBSA)
• S. 4 CBSA is the central bureaucratic organization in charge of enforcement (keeping inadmissible persons out of Canada)
o *Port of entry (border) decisions, security screening of immigration applicants (detains security risks/danger to public), removal of people without status, Refers refugee claims to the IRB, CBSA officers appear on behalf of the Minister in IRB hearings
o Must be satisfied individual has visa – and is still admissible under the criteria of IRPA
• S.6 Immigration officer and Ministers’ Delegates make decisions
o Minister of Public Safety and Emergency Preparedness Canada (Peter Van Loan)
o Agency on the government side in cases “…v. Canada (M.P.S.E.P)
• Took over enforcement aspects of IRPA from Citizenship and Immigration Canada (CIC)
o Formed by Order in Council in Dec 03 (time from Sept 11, 01)
Immigration and Refugee Board (IRB) , p. 37 Chart
• Refugee Protection Division
• Immigration Division
• Immigration Appeal Division
o Hears appeals on certain immigration matters
• Refugee Appeal Division (not in place)
--
• Independent tribunal, but reports via Minister of CIC
• Government council appointee
• Largest Canadian federal tribunal
• Planned spending 133 million, almost 81 million on refugee determination
- Refugee Protection Division
• Decides on refugee claims made by people in Canada
o Convention refugees, or persons in need of protection
o Non-adverarial
• Hears refugee protection claims, applications for vacation of refugee protection, and applications for cessation of refugee protection (country is no longer a place of risk)
• ie. refugees have rights, such as to apply for permanent residency
- Immigration division
• Conducts admissibility hearings/review to determine if people (FN or PR) may enter or remain in Canada; where they are alleged to be inadmissible or in contravention of the Act
o P.45 Supp – X remain in Canada
• Conducts detention reviews for foreign nationals or permanent residents who are detained (jailed) for immigration reasons.
o Occurs frequently; minister must satisfy the board members of valid reasons for detention (like a board hearing)
o Reasonable ground to believe: Unlikely to appear for an examination, hearing or removal (flight risk); danger to the public; inadmissible for security reasons or human rights violation; FN has not established identity
o 48 hrs, 7 days, every 30 days (or early review with new facts
• Always adversarial (Person v. Minister)
- Immigration Appeal Division (Most judicial, of the quasi-judicial)~
• Hear and decide appeals on certain immigration matters:
o For removal orders, made against PR, protected persons, and FN who have PR visas (w/i 30 days; issue stay)
o Sponsorship applications for family members refused by CIC
o Residency obligations found by CIC officer not to be fulfilled by PR (w/i 60 days)
o Appeals by the Minister (CBSA) from decisions of the Immigration Division at admissibility hearings
• Ability to overturn if wrong in fact, wrong in law or H&C considerations
• No appeal if: serious criminality (2+ yrs prison), involvement in organized crime, security grounds, violation of HR, (& for sponsors – misrep)
• CIC is bound by decision, but can still refuse application on other grounds
- Refugee Appeal Division (not in place).. failed when last government fell
Removal Orders:
• Departure order
o Must leave Canada, and simply meet normal criteria to come back
o Leave w/i 30 days, or becomes excl. order
o Refugee claimant is issued a conditional DO, effective if refugee claim is abandoned, or refugee protection is not granted
• Exclusion Order
o Must leave and cannot return for one yr, unless have written permission
o Misrep = 2 years
• Deportation order
o You will be removed from Canada, and can’t come back to Canada w/o written permissions
o Issued for inadmissibility (security threat/serious IRPA violation)
Federal Court and Federal Court of Appeal (FC and FCA)
( Lastly can always end with appeal here
• Judicial review of proceedings
o No contract, limited tort, mostly judicial review
o Non-compliance with Constitution
▪ S7 Charter of Rights
▪ Fed/Prov agreements in immigration, Fed paramouncy
o Procedural fairness & Substantive review -- jurisdiction, error of law (when and why a court should defer)
• Ss. 72-75
o Jurisdiction over immigration matters – federal court
o Judicial review proceedings (Federal Courts Act s. 18.1(4))
o Also very limited discretion in Provincial Supreme Courts – based on residual charter powers and ability to grant remedies, and wrongful detainment
o Only ON exercises this ability
• Leave requirement
o Don’t get to court as a right – Must apply
o Can only be granted if you have exhausted all your other appeals
o No reasons given – one line decision
o Hear conflicting answer by judges (reads once, and makes a decision if she can; then once more .. if up in the air will grant leave; Makes decision in 15 minutes and sticks to it)
o Purely paper process – affidavit and argument files – department files in response. Judge decides.
• Certified question required procedure to go to the FCA
o Question must be certified (“as of general importance”) for appeal
o End of the line
• Hope of “The Law” in immigration
o “The record”, or file of all information is given to the individual
o Question is not – was the right decision made? – but, was it made properly?
o All procedural – not focused substance of outcome; remedies all send matter back to be redone in a manner consistent with the law
o Catherine “The law as immigration’s once great hope”
o Statutory authority to make decision - limited by statue (more administrative decisions, stuck with what parliament has said)
▪ Constitutional difference from courts with inherent jurisdiction; can grant remedies and give results (do justice)
▪ P. 169 – List of (limited) Federal court powers
• Further appeal by leave to the Supreme Court of Canada
o An even more narrow right to get leave for the SCC
Dilemma of Judicial Review
• Job as a judge and his experiences
• Refugee claim dismissed – mother safe, not children (genital mutilation)
o Claims are about forward looking risk
o Mother is not at risk anymore – what does judge do with what the law says
o Judge’s approach to his job – must follow the rules, his opinion is irrelevant – but can maybe find a way to do what is right
o Reasonable to send her back? Finds a way to fit it within the rules, and make it work.
• Reasonableness standard – decided by the federal judge
o Must meet the test; within a range of possible reasonable outcomes, given the facts and the laws
o Different RPD members could make completely different decisions, based on their interpretation of the range
o Not about the judge’s ethical opinions.
Class 6
JUDICIAL REVIEW – ADMINISTRATIVE REVIEW
(Process and Players Continued)
Dunsmuir 2008 SCC - Nature/standard/process/substance of JR
• Latest word on judicial review, and the extent of judicial review.
o We’re dependent on this case for JR and Jurisdiction of courts in the context of immigration law (new one isn’t decided yet).
o Before IRPA and CML applied standard of correctness, so case creates door to deference (incl. for IRB and officers)
o Crown lawyer was dismissed; grievance went through a tribunal, and was appealed to see what the Court can do in judicial review
• What are they actually allowed to look at? Jurisdiction to determine cause? How do we treat their findings (fact)?
o [27-28]: The Rule of Law is the foundation of JR.
o Fed Court Act (+IRPA) sets out grounds on which judicial review can be granted – erred in law, beyond jurisdiction, failed to observe a principle of natural justice, erred in fact perversely or capriciously, acted by fraud/perjury, any way contrary to law - catch-all provision.
o Judicial Review isn’t an appeal; or a new hearing
o The remedies are set out in 18.1(3) Federal Court Act
▪ If the tribunal did something unlawful, Crt can quash the decision OR can order a tribunal to do anything it unlawfully failed to do/unreasonably delayed to doing
▪ Result may still end up the same.
▪ Can limit scope of power – but not discretion granted via statue to decision make
o Issue a removal order – Court can stay/prohibit this order while one challenges lawfulness of Risk analysis
• Before this case, there were 3 Standards of Review Analysis:
o Was tribunal decision correct?
o Was it reasonable?
o Was decision patently unreasonable?
[Results focused]
• [47] Reasonableness is a deferential standard – Certain Qs lend themselves to a range of possible outcomes that are defensible in fact and law… so there can be multiple correct decisions. JR is concerned with whether it falls within the range of possible, acceptable outcomes which are defensible.
o Used for immigration – [55] A privative clause in statute - direction from Parliament or a legislature indicating the need for deference + discrete and special administrative regime w/ special expertise
o Officers/board have experience/knowledge gained from day to day working of nuances and particularities, thus may have better ability to weight and balance appropriate factors
o [53] Where a Q of fact (or law/fact intertwined), discretion or policy, deference will usually automatically apply [huge spectrum]
• [57] No standard of review analysis necessary if it’s already been done by another judge of the same level.
• [58] Correctness standard of review for Constitutional questions
• [59] Standard of correctness where ultra vires jurisdiction
o Robust view of Jurisdiction for administrative bodies;
o Can only act w/in the rules of the act
• [66] A Q of General Law (so an error, or fuzzy) is central to court’s jurisdiction and outside the area of expertise of admin body
o Nature of the Q of law: Q that is of “central importance to the legal system and outside the specialized area of expertise” of the administrative decision maker will always attract a correctness standard. Q of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate.
• Decision (more than on fact) – may be less deference? (lower spectrum)
Jurisdiction Error
• Officers and decision makers only make decisions delegated to them via the act
• If ethnicity not list – decision on such would be outside jurisdiction
• “Independence” – Not process, can’t fetter discretion
M.C.I. v. Khosa, 2009 SCC 12
• Long-awaited decision of the SCC on standard of review of tribunal’s finding of fact in immigration context
• Interplay of Dunsmuir and s.18.1 of the Federal Courts Act (“FCA”)
• FCA, s.18.1 sets out grounds for review and not standard of review – Dunsmuir analysis still applies
• Reinforces deferential approach to judicial review – standard of review is reasonableness
[Substantive Review of Discretionary Decisions]
Resulted in s.25 rewording – incl. CRC
Baker v. MCI 1999 SCC – for decisions of officers (Pre-Dunsmuir)
• Judicial review from an immigration officer decision not granting Baker a s.25 H&C exception (didn’t qualify otherwise and ( couldn’t stay); unsuccessful at Fed Court, appealed reasonableness of decision - procedural and substantive review
• Granting H&C exception is a discretionary decision on exceptional circumstances – Role of child’s interest?
o Discretion must be exercised acc. w/ boundaries imposed in the statute, principles of the rule of law, admin law, fundamental values of Canadian society, and the Charter
o Weighed factors – decided on a reasonableness standard
• P. 180 – Officer notes provided (reasonable apprehension of bias)
• Judge looked to many different sources framing of decision:
o IN obligations (Controversial - guidelines, soft law)
o Objective of IRPA – family unity
o CRC guidelines on best interests of the child – 100 page doc to those making these decisions (now s. 25 explicitly mentions)
▪ “Unreasonable exercise of discretion not to consider”
▪ Not determinative, but an important factor.
• Judges’ own discretion – fettering?
o Expand with outside policy
o Expectation of what one can/would rely on when officer is making decision – eg. best interest of child(
o (Reduced JR to process, not substance)
• *Baker after D? (how would this have played out?)
o “Range of Reasonableness,” - not w/i
o Don’t look at best interest of the child?
Hawthorne
• Re-emphasized child consideration as important but not determinative (possibility of being outweighed by other factors)
Suresh v. MCI 2002 SCC (also pre-Dunsmuir)
• Found to be a convention refugee, so can’t be removed from Canada (+well founded fear of torture). This is subject to exceptions, such as for danger to the public. Minister decided he was ‘dangerous’; appealed.
• How deferential is the court supposed to be to the minister’s decision? P. 191
• Baker didn’t imply court could reweigh the evidence (maybe not true..), but draws on an established line of cases concerning failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors
• When a decision has political/security elements, extra deference should be given to decision ( Patent unreasonableness or unreasonable
o Due to competing interests and IN obligations
o Should not disturb a decision based on ‘broad discretion’ unless the tribunal has made some error in principle or exercised in a capricious or vexatious manner.
[Procedural Fairness] p.207/8
• Federal Courts Act allows for judicial relief where decision maker has failed to observe a principle of natural justice or procedural fairness
• Reasonable apprehension of bias ~ cynical and jaded
• DPF - Individual affected should have the opportunity to present heir case fully and fairly, and have decisions affecting their rights, interests or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision
• Non-exhaustive factors determining Duty of fairness (as a principle of fundamental justice):
[CL principles of fairness and natural justice (correctness)]
1. Nature of decision made and procedure followed in making it ~ closeness of the administrative process to the judicial process (Huge in Baker; Oral interview required? Maybe not..)
2. The role of the particular decision within the statutory scheme (statute as helping determine duty – eg. high fairness threshold where no possibility of appeal)
3. The importance of the decision to the individual affected (Suresh – would be deported to Torture – obligation on refugee to show prima facie case may be risk – requires greater procedural protection)
4. Legitimate expectations of the person (ie. Policy); where undertakings were made concerning the procedure to be followed (not substantive).
5. The choice of the procedure made by the agency itself (x nec require full oral hearing or judicial process_
• All the factors work together, aren’t exclusive, and may not all be engaged in every case.
o [Participatory right] Has individual been given adequate notice of the proceedings/issue to be decided/concerns of decision maker; Granted adequate disclosure of material
o Sufficient opportunity to present their case, respond to allegations against them, represented by counsel, given interpreter (Suresh)
o Is the person who hears the case, the one who decides it?
o Delay prejudicing the individual?
• Other alleged procedural shortcomings in Baker
o Provision of adequate reasons – This has become increasingly prevalent in recent years. It’s seen as very important for someone to be given reasons for their decision. They aren’t necessarily required but this is extremely rare.
o Foster transparency and more fair/better decision making
o Baker ended up being based on some immigration officer’s notes about the hearing (notes can qualify as reasons).
• Ahani - Government balances his risk v. security of Canadians, gave opportunity to respond – deported.
Class 7
**Baker, Singh and Chiarelli – 3 of the most important cases
CONSTITUTIONAL REVIEW
• Federal/Provincial Agreements (eg. Canada-Quebec accord)
o Provincial criteria, but federal government has Paramouncy
o S.8/9 IRPA Fed/Prov agreements in immigration
• Charter of Rights (legislation as contrary)
o S.7 Right to life, liberty, and security of the person + right not to be deprived thereof except in accordance with the principles of FJ
o Constrain both procedural and substantive decision making
• *Strike portions of the immigration act as being unconstitutional
Singh v. MEI - Was no right to an oral hearing for refugee claims
• S 7 -- That risk of deprivation for security of the person, with risk for well-founded fear of prosecution, engages section 7
o “Security” - Freedom from the threat of physical punishment or suffering
o Right to a hearing [procedure], not the right itself.. engages s.7
o Can deprive, provided its done in accordance with principles of FJ
o Applies to every human being physically present in Canada
• Lack of access to an oral hearing was not in accordance w/ principles of FJ
o Wording “while lawfully in Canada” – no Convention refugee will be, in one sense, lawfully in Canada. Avoided by issuing minister’s permit. Discretion of minister must be done fairly and in accordance with proper principles
o Refugees didn’t not have a fair opportunity to present their claims or know the case they had to meet, ( x make an effective challenge
• “Immigration is a privilege, and not a right” – “ I do not think this kind of analysis is acceptable in relation to the Charter”
• S.1 – s.7 implicitly recognizes the balance of administrative convenience does not override the need to adhere to these principles
• NO positive right … didn’t go very far in creating rights for refuges (but opened the door?)
• Prompted creation of IRB
--Still restrictions on rights of appeal.. (compare reasoning in cases)
Chiarelli v. Canada (MEI) S. 7 –
• s. 7 violation: In camera process before SIRC, and deportation of a long-term PR w/o considering all circumstances of his case (process of issuing security certificate)
• Suspect of involvement in organized crime – issued certificate automatically dismissing his appeal
o Crime was a Canadian problem, not a deportation one
o Family was here – right to make a H&C appeal was uncst.
o Force return to Italy would deprive him of liberty, and to some extent security of the person
• Sopinka p. 163: Not going to speak of this – “In determining scope of principles of FJ as they apply here, must look to principles and policies underlying immigration law” – The most fundamental principle of immigration law that non-citizens do not have an unqualified right to enter or remain in the country. At CL, an alien has no right to enter or remain in the country
o Court wouldn’t even engage S 7, here ( sidestepped
o He violated the provisions of his temporary residency.
• Thus parliament has the right to adopt an immigration policy and to enact legislation prescribing the condition under which non-citizens will be permitted to enter.
o Otherwise, could become a haven for criminal and others whom we legitimately do not wish to have among us.
• Also referred to s 6 – mobility right is constrained to citizens (distinction made here b/w non-residents)
>Reconcilable??? Either side…
• Singh
o Security/refugee - Different idea around refugee claimants?
o s.7 for every human being present in Canada
o [didn’t provide for] a fair opportunity to meet case against oneself (x + action for) – s.7 x overarching balance of admin convenience
o . ‘Immigration not a right’ analysis as inappropriate
• Cher
o TR/personal responsibility for insecurity? + liberty ~ perhaps case tried to engage ‘right’ more than process?
▪ Deportation in itself cannot implicate the liberty and security interests protected by s.7 of the Charter (Liberty, as informed by s. 6, is not a protected right..)
o no s.7 analysis
o Rather than ‘didn’t provide for’ – actively excluded the provision of (- action from) - maybe should have been justified under s.1?
▪ Active conditions, policies and legislation (rather than omission of providing for FJ)
o Looks to ‘no right to remain’ (As part of FJ); rather than procedure, s7 – should have applied?
▪ Which applies first – Charter; or Immigration K?
• Not - Charter v. Immigration regime as highest; Procedure first: Cher wasn’t looking for substantive result, should have ensured Charter rights were protected; held Immg statute above Charter. FJ informed on it’s own terms, or by immigration principles. Should have satisfied both.
• Nguyen
o Provision rendering certain individuals ineligible to make a refugee claim – foreigner has absolutely no right to be recognized as a refugee… s.7 is not engaged by a declaration of ineligibility because the declaration by itself does not lead to any act that may affect like, liberty or security of the person [would not outrage Canadian standards of decency so as to offend PFJ)
o Distinguish b/w person rendered inelligible from one to be deported
Charter of Rights case decided not long after Sept 11
Suresh v. MCI, SCC
• Connection to Tamel tigers of the Lamb – reasonable belief of terrorism engagement; Was fundraising (not illegal at the time).
• Non-Refoulement, special risk of torture on the evidence – one exception is “danger opinion,” or inadmissible on security grounds (Terrorism)
o Scope of terrorism? (risk for everyone everywhere – Canada is responsible to prosecute and protect)
o Fundraising - no harm directly to Canadians - how should this feed into the danger certificate process
• Legislation and conduct of Minister were challenged
o Facing torture - but danger certificate was issued regardless
o Legislation that permits this is contrary to S.7 and PFJ
• Charter generally forbids deporting a person to face torture in the name of national security (serious possibility of this here)…
o Deportation to face torture engages s. 7; PFJ – shocks the Canadian conscience
o Furthest court has gone at creating a SUBSTANTIVE RIGHT to remain in Canada – where there is a serious possibility of torture – will not deport.
• …but left open the hypothetical possibility that there might be extraordinary circumstances warranting an exception, still consistent with PFJ .
o Clear – nothing wrong with Dangerous certificate per se – minister CAN carve out an exception – not unconst in any way
o But in issuing– minister must act in a way that is Constitutional
o Court side-stepped articulation of the criteria for exception allowing deportation (does engage S. 7/PFJ here; Balancing)… perhaps hoping or anticipating that it would never be necessary to do so.
o *Comes down to balancing, and Canadian jurisprudence suggest this will usually come down against expelling a person to face torture elsewhere
o PFJ… + procedural fairness (CL, and administration) – turns right to the Baker principles – he didn’t have proper time to know and respond to the case against him.
• + assurance – Sri Lanka will not torture! Signed international law
o BUT – insufficient, how could we rely on an assurance, when we can’t rely on their following international law?
• (( Dadar! Inconsistent with this case.. or simply was one of these exception cases?)
Guzman v. MCI FC 2006 (
• S 15 on equality – how do these fit with immigration?
• It’s about distinguishing people based on personal characteristic
o Equality – about not discriminating based on personal characteristics
o Eg. medical conditions that would unduly burden Canadian society – Burden on social welfare
o Polygamy – freedom of religion with immigration? Multiple spouses
• Sponsor - Recipient of social assistance for reason other than a disability
o Discriminatorily prevents those on social assistance [not a personal characteristic] from being able to sponsor a relative, otherwise qualified to sponsor [no enumerated ground]
o Can sponsor – if undertake to provide for basic requirements of individual sponsor; balance importance of reunification with economic factors; support self before support others [burden on taxpayers otherwise] – assumption that those on welfare can’t support others is an informed one [not discriminatory]
o S. 25 valve – or sponsor when off welfare
o Where complete bar (from sponsorship) would operate unfairly in particular circumstance – 133(1)(k) allows minister’s discretion
& Charkaoui v. MCI
• All risk of torture. All subject to security certificates under IRPA (based on alleged involvement with terrorism), some foreign nationals, some permanent residents, certain refugee status.
o PR may be detained, + review, FN must be detained, no review until 120 days after Federal court holds certificate as reasonable; reasonable = removal order, may be immediately enforced (even to torture)
• S 7 was engaged also, making it a Charter challenge
o because liberty was deprived (automatic detention upon issuing a security certificate) + risk of torture
o Crown – initially said S7 isn’t engaged (deportation itself doesn’t engage S7, Medagarzski)
o BUT deportation + (eg. detention, to torture) engages S 7, not just in and of itself – FPJ not to lose liberty w/o due process
o PFJ -Impartial and independent judge + case to meet(
• Admin, Procedural fairness Argument - Can issue certificate of inadmissibility – but process for issuing is unfair
o Minister and judge rely on secret information
o Lack of chance to respond! (s. 15 many Canadian citizens subject to suspicion, but not deportation orders –unsuccessful)
o judicial review, but this judge has access to secret evidence, as does crown, no appeal (no independent agent to better protect person’s interests - need to have someone speak to the evidence against – or else deference is afforded)
o but individual doesn’t need to know cases against us ~ need safeguards/substitutes
• s. 9 guarantee against arbitrary detention; the s. 10(c) guarantee of a prompt review of detention ~ violated
o Some continuing detention found to be arbitrary
o Detention – can be okay, so long as there are regular reviews, consistent with S 7 of the Charter
▪ including reasons for detention, length of detention, reasons for delay in deportation, anticipated future length of detention, availability of alternatives to detention,
( S7? “It follows that while administrative constraints associated with the context of national security may inform the analysis on whether a particular process is fundamentally unfair, security concerns cannot be used to excuse procedures that do not conform to fundamental justice at the s. 7 stage of the analysis. If the context makes it impossible to adhere to the principles of fundamental justice in their usual form, adequate substitutes may be found. But the principles must be respected to pass the hurdle of s. 7. That is the bottom line”
INTENATIONAL REVIEW
International Covenant on Civil and Political Rights 216
+ Optional Protocol 218
Convention Against Torture and other Cruel… 218
American Declaration on the Rights and Duties of Man 221
UNCAT Conclusions and Recommendations 226
International Intersections
• “Domesticized” in legislation
o S. 96 of Irpa imports 1951 Convention refugee def’n
• CML presumption that Gov doesn’t intend to act in breach of Canada’s IN obligations
o Baker BIOC
• International presence
o UNHCR officers in Canada
• International Review, 2 types:
o Individual Complaints
▪ Canada is concerned with international image
▪ Final options after Canadian appeals are exhausted
▪ Canadian courts are not bound by views (Ahani, Dadar)
o Government reporting
Individual Complaints
Dauvergne: Humanitarian Identity and Nation
• Humanitarian migration laws result from the “need to define and understand the nation as compassionate and caring, as well as perhaps identical need to be perceived in this light.”
• … Canadian law has a more generous face.. humanitarian.. due these intrinsic needs.
• “Humanitarianism is closer to the heart of the Canadian rhetoric about migration than it is in Australia, closer to the tradition Canadian lawmakers seek to construct, closer to the mythology that Canadians, as individuals, are willing to honour and reify.”
Dadar: UNCAT (Committee Against Torture)
• Fled to Canada after being imprisoned and tortured as a political opponent of the Iranian regime, then after serving 8 years in prison for severe aggravated assault, ordered deported.
• Communication to UNCAT alleging that Dadar would be subject of torture/execution if deported to Iran
• UNCAT concluded “substantial grounds exist for believing this risk”
• CANADA – “while we takes its international rights obligations very seriously… it is Canada’s intention to remove Mr. Dadar to Iran.”
• Went to federal court to complain
o Dadar - Canada’s response to UNCAT’s decision should not be tolerated by the courts
o Court “As a matter of law, UNCAT decision is not binding on Canada – As in Ahani, this case demonstrates the proper role of executive and judiciary (not judiciaries role to second guess Canada’s decision not to adopt UNCAT’s decision; Rather it’s a matter for … public or international opinion)”
o .. Did not raise a ‘serious issue’ meriting a stay of deportation.
• Committees rely on social sanction, media pressures and other indirect non-binding mechanisms for covenants and enforcement
• Other on Torture:
o Jaballah: Huge Deference - judge accepted as 'not patently unreasonable' the government's claim of risk posed to national security, outweighing the harm of torture to J… he ‘fits the profile,’ not ‘is’ a threat to national security (embodied in secret evidence) (BYRD for death penalty?)
o “The phenomenon of terrorism has made torture 'thinkable' to some segments of the public, the state and even the judiciary, and the government has wasted no time.. expanding the category of people whom it would rather see tortured or killed than alive on Canadian soil. Mr. Dadar is not a security threat. He is a criminal offender who served his sentence.. once an offender has served his sentence, his punishment comes to an end. While Canada certainly can and does deport criminal non-citizens, doing so in disregard of the Convention Against Torture is unprecedented.”
o 2 ways to justify handing over to torture – Not think too much about it (numb, another word of unpleasantness) ~ or non-citizens as forfeiting their humanity and ( human rights.
o We have a criminal justice system to deal with human beings (citizens and non-citizens) who violate our criminal law, and anti-terrorism laws for those who pose threats to national security.
UN Human Rights Committee
• Protects International Covenant on Civil and Political Rights
• Accession by Canada 19 May 1976
• Article 1 of Optional Protocol to ICCPR permits individual communications to HR Committee
UN Committee Against Torture
• Protects rights in the Convention against torture and other cruel, inhuman or degrading treatment or punishment (CAT).
• Art. 22 of CAT permits individual communications if state party has made declaration recognizing competence (Canada made declaration in 1989)
• S 97 IRPA directly reference CAT, good job of incorporation
Inter-American Commission on Human Rights
• Canada is not a party – but bound by the declaration as a member of the organization of American states
• Organ of the Organization of the America States to protect the rights in the American Convention on Human Rights and the American Declaration of the Rights and Duties of Man
Complementary protection *Growing notion
• Human rights law has extended states international protection obligation, (beyond 1951 Convention) by widening the scope of non-refoulement to those at risk of lower threshold serious harm, [harm threats; need for protection; non-refoulement]
Tahir Hussain Khan v. Canada
• Decision by UNCAT
• Issue: Whether forced return of Khan to Pakistan violated Canada’s obligation under art.3 of the CAT
• Decision: Obligation not to return Khan to Pakistan
Government Reporting
• Baker (1999) – government lawyers argued that protection against family separation in international treaties should not be understood to fall under s.7 of the Charter’s protection
• Meanwhile the Canadian delegation presenting reports on CRC in 1995 - had on 3 occasions, indicated that covenant’s rights were subject to Charter protection
• Baker – courts was asked in oral arguments to take note of one arm of the same fed exec saying one thing before international legal audience (while reporting on progress), and another thing before domestic legal audience (at home fighting charter challenges)
Exercise on Alice and Country X – Appendix 1
Class 8 (Jan 30)
TOPIC TWO: ADMITTING PEOPLE TO CANADA
TEMPORARY RESIDENTS – VISTORS, WORKERS AND STUDENTS
> Basics of substantive legal regime re: visitors, students and workers
• Tourists, business visitors, temp foreign workers, foreign students, live-in caregivers, seasonal agriculture workers, and holder of TR permits
> Theoretical debate on temporary worker programs
IRPA s. 3(1)(g) – Temporary Residents Policy Objective
“To facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities” - To benefit Canada, economic growth
• Mutual benefits, or at expense of TR and their home countries?
• Not dealing with more fundamental domestic, social and economic public policy issues
• Challenge of facilitating TR admission while providing both protection and opportunity for both entrants and Canadians.
The temporary foreign workers pouring into Canada are often exploited
• Growery, economic exploitation - stemming from the dramatic rise in the use of temporary foreign workers in Canada with job market demands - quiet loosening of restrictions on foreign workers designed, union leaders say, to keep wages low and to avoid a national debate on the sensitive issue of immigration.
• “economic immigrants” not cutting it – employers needing less qualified, lower-paid workers. No 6 week job search, no “labour market opinion” (LMO) on whether a worker from outside the country is really needed. + virtually no monitoring of their pay or work conditions, leaving them wide open to abuse. “Every foreign worker needs basic training in his rights and to be told that there's a place to go to if he's being abused,”
• do not take issue with foreign workers coming into Canada; they just do not like the temporary aspect of their stay. “If these people are good enough to build our factories and serve us coffee, they're good enough to be full citizens,” Mr McGowan says.
• Ottawa is promising to make it easier for temporary workers to become permanent residents, but this is likely to be limited to the more highly skilled. And Canada needs the low-skilled too.
Sun Article
• A weakening provincial economy and a spate of layoffs - "The list was dubious at the height of the boom, but it's a complete fantasy now."
• AFL is probing complaints Canadian citizens are being laid off from Alberta companies that are keeping temporary foreign workers on the payroll - something that's not allowed under federal rules.
• The feds allow the foreign nationals to be employed in Canada in a variety of fields that are said to be in dire need of workers because there aren't enough Canadians to fill the jobs- long contended the feds allow in more foreign workers than Canada needs.
• "If we actually need such workers, we should be bringing them into the country as immigrants not as a disposable class of guest workers. We're essentially creating an underclass of cheap and exploitable workers."
• McGowan figures actually a shortage of workers in about 20% of the 170 fields.
Requirements
• Must apply for a Visa ss. 20(1)(b), 22(1)
o Apply for visa BEFORE coming to Canada; Unless from an exempt country [+permit to work or study] - Must meet same requirements at Port of entry
o List of countries w/ visa exemptions in IRP Reg., s.190
o Also need to establish that not otherwise inadmissible
• s.179 - Visa will be issued by officer if established that… Person will leave Canada at end of authorized period (6 mo default).
o Refusals for insufficient ties or roots in home country
o s.22(2) Dual Intent does not preclude entry
• De la Cruz v. Canada (M.C.I) 1989
o Discretionary and administrative decision - Burden of proof is on applicant seeking a visa to establish they’re admissible and will leave when visa expires
o As long as visa officer has performed duty by properly considering application, Court will not set aside decision even if the Court may have reached a different decision (deference*, unless procedural unfairness)
• Yuan – breach by not allowing opportunity to respond to concerns, and failure to properly consider other relevant info
IRPA Reg s. 184 Conditions of temporary residence
Admissibility criteria assessed again (will leave, and not inadmissible?)
• Ongoing duty to meet requirements
o evidence and reason required for officer to reverse a decision
• Must leave at end of authorized period (6 mo default + extension appl.)
• Must not work or study unless authorized by IRPA (s. 3)
o Exception for children
Extension and Restoration of Status
• Reg. 181 Can extend status if apply before status has expired and still meet conditions
• Reg. 183 Have implied status while extension application is pending
• Reg. 182 If apply within 90 days of loss of status, and still meet conditions, can restore status (should have left – but like a grace period)
• Pretty easy to extend, but the more extensions the harder restoring becomes
Breach of conditions work/study permit
• S30 – Generally results in removal from Canada (1/3 orders)
• Dinh v. Canada – employed off campus, order upheld
Study Permits (*Cheat sheet manual on over-see’s process – designed for immigration officers)
• Significant source of revenue for school boards and Uni’s
• R. 212 Need a study permit to study
• R. 188 Exceptions to requirement for study permit, including if duration of course of study is 6 mo. or ( (( English, econ benefits; higher fees)
o All Minors up to secondary school – but visa processed as foreign students in student class, not TR in visitor class
• R 213 – 215 generally apply for study permit before entering Canada
o Exception for family members
o Even with 6 mo or less, if chance you want to renew
• R 217 Can apply to renew study permit
Requirements:
o Will leave Canada at end of period authorized for stay (bona fide student)
o Acceptance letter from an educational institution (w/ exceptions)
o Sufficient financial resources for tuition and own expenses
Wang v. Canada (MCI)*
• Why was Ms Wang’s study visa (permit) refused? Insuff funds
• Ms Wang Visa officer was unreasonable – Didn’t believe she would return home - How established should a 19 year old be? (cultural ties, links to parents, social ties etc.)
• Do you agree with court’s rationale for dismissing JR? On the line… [13 & 14] Deference.
Kim v. Canada
• Officer refused to extend Mr. Kim’s study permit and temp resident visa because hardly attended class, dragged out study time.. wasn’t satisfied rationale as here to study, as a bone fide student
• Court granted this judicial review application because… no explanation as to the nature of the interview was given, no chance to meet case against him, Kim’s actions suggested otherwise – dismissed in favour of officer
Work Permits
• S. 30 and R.196, Generally need a work permit to work in Canada
o R. 186 Exceptions
▪ eg. full-time students on campus (enrolled for 6 mo), business visitor (187), trade agreements, diplomats and family, some entertainment industry..
▪ x specific, just know general
▪ s.204
• Apply for permit if in receipt of a job offer from Canadian employer
• R 197-199 Usually must apply before coming to Canada
o exceptions include if already have a study permit (or post-grad, 90 days)
• R. 201 Can apply to renew work permit
• R.200 (-208) A work permit shall be issued if..
o Applicant will leave at end of stay
o Is able to perform the work
o Offer of employment genuine, and neutral or positive labour market effect in Canada (HRSD usually provides labour market opinion)
▪ Visa officer can assess this themselves
▪ BUT generally require an actual labour market opinion, from human resources and social development Canada
▪ OR demonstrate employment would create/maintain significant social, cultural, or economic benefit/opportunity for Canadian citizens/PR
▪ Or Expedited assessment (Practical considerations()
o Exceptions to requirement for n or + labour market effect
▪ trade agreements like NAFTA, work with social or cultural benefit in Canada
▪ un-removable people with no other means of support (Refugee, H&C)
Policies temporary foreign worker program
• 07/08 initiative to facilitate foreign worker entry ~ Operational, not legislative impact [thus easier criteria for regular workers than skilled]
o Expedited labour market opinion project (BC/Ab)
▪ Instead of waiting for labour market opinion – those in key trade areas (ie. Unskilled), or services supporting these – employer could get labour market opinion over days.
▪ Must be clear and obvious, not undermine market objectives
o More visa officers in key locations (also have private industry recruiters) eg. Manila, Philippines
o Canada/Mexico labour mobility working group
o Canada provincial immigrating agreements
• Canadian Experience Class
• 165,198 in Canada 2007
• 19% Increase since 2006 (47% since 2004)
Theoretical Perspectives on TFW
Macklin –
• Instruments for rapid recruitment to fill immediate but not necessarily temporary needs – in undesirable, devalued and low wage sectors
• Insecurity – link permission to remain with service to a particular employer/occupation – creates toleration of wages and working conditions
Walzer – Guest Workers & Membership
• > Mutual benefit and aid v. creation of divided un= societies
• Position on borders – should be closed
o Humanitarian – identity and character of the community which should be preserved by closed borders
• Those coming in are always servant to those in the country
o Dispensable live-in servants for the state, to perform hard ad unpleasant work - Creates segregation
o See state as a pervasive, frightening power that shapes their lives and regulated their every move – never have a say. But don’t need citizenship like they need jobs and money
o Membership and citizenship should be open to them ~ unions/welfare, political rights/ civil liberties
o OR change the way you structure job openings, work w/i the limits of the domestic labor market to get socially nec. work done.
o *tyrants- democracy can’t operate (character of the community diluted)
• Political justice p. 248: That the prcess of self-determination through which a democratic state shapes its internal life, must be open, and equally open, to all those who live within its territory, work in the local economy, and are subject to local laws
o naturalization still dependent on immigration
o When the first is close = members v. strangers
• Acting in the world/sovereignty/national interest – shape of the community that acts in the world
Ruhs – The Case for Foreign Worker Programs
• New, expanded – desirable, feasible and ethical
• Pragmatic – realistic approach
• Benefits to all sides (economy labour market gaps, and for those coming in, bring experience back) - Looking at the whole picture (sending country)
• While not addressing fundamental problems of poverty and econ development – benefit by remittances of $, skills and knowledge
• Policies, Change incentives for employers –
o Should pay migrant workers more, prevents subsidizing inefficiencies (will look for alternative before paying this fee)
o Employers are encouraged to discourage foreign workers (rather than improve industries, they function at a lower inefficient level which citizens are willing to work in)
o Fee to generate funds for enforcement and integration assistance
o Allow for change of employers, more easily ~ freedom of movement
• P.258 – Key factors*
Macklin – Foreign Domestic Workers in Canada
• analysis of live-in caregivers – they’re exceptional in the legislative scheme since programs inception – healthy, no dependents, women; opportunity for citizenship after 2 years creates susceptibility to exploitation; Experience criteria/education fluctuated
• Master-servant relationship, where demand has always exceeded supply
• being/working in the home, they’re in the private realm, rather than the public.
• It also seems set up for a temp worker to eventually get perm res.
• “The imperative of maintaining the family as a viable social, econ, and reproductive unit means that the dual-career nuclear family will continue to depend for its survival on the foreign domestic worker even as it, by definition, excludes her”
On Temporary residents - you may be interested in the Federal Court’s recent decision in Voluntad v. MCI, 2008 FC 1361,
• Crt dismissed judicial review of the refusal of an IRPA s.25 H&C
• Request was made by a foreign national who had come to Canada, worked as a live-in-caregiver, and met class criteria to become a PR under the live-in-caregiver class,
• But was found to be inadmissible to Canada on the basis that treatment he required for kidney disease would create an excessive demand on Canadian medical services.
Class 9
PERMENENT RESIDENTS –
ECONOMIC CLASSES
Skilled Workers and Business Immigrants
With fact scenarios - be mindful of IRP Regulations ss. 70-109,
+ May find it helpful to consult the following resources:
National Occupational Classification:
CIC Overseas Processing Manual (especially chapters OP-6, OP-8 and OP-9):
CIC’s self assessment test - designed to enable a prospective immigrant to determine whether he or she would meet the skilled worker selection criteria:
Selection of Economic Immigrants
• S.12(2) Selection of economic immigrants “on the basis of their ability to become economically established in Canada
• Objectives s. 3(1):
o a) Maximum social, cultural and econ benefits of immigrations - Enrich and strengthen social and cultural fabric of Can society
o b) Support the development of a strong a prosperous Canada economy, benefits across all regions
o c) Promote integration which entails mutual obligation
• 4th – (J) to work in cooperation with the province - more rapid integration into society
• Hajariwala – purpose of the statute is to promote integratin not prevent it
Wroswick/Hollick (& Heibert() – Declining Earning Reasons & Remedies – Riding two cultural horses
• Dubious that it’s even possible to select indvs who will be of certain econ benefit
• Has not been a very successful prg – poor indicators of individual’s success; Concerns that recent economic class has not been as ‘successful’ as predecessors in terms of labour market participation and earnings
• Studies showing small or no impact on native-born wages/labour
• Are criteria feeding into the point system the right criteria?
• Assuming want self-sufficient Immg’s, not drain gov resources
o If it were more successful, Canada class would feel threatened?
o Net benefit to Canadians who feel we’re a more culturally diverse society and letting more people in
o Second generation success – migrate for benefit of children**
o Even if selected for benefit to country - Brain drain from the South
• Decrease the numbers of econ immigrants- unless changes implemented for greater success – family and refugee classes more important otherwise
o if we just got the right criteria it would work (current)
o Solution – Support and resource management training
o The problem is not the laws, it’s the framework and policy services connecting people to economic and information prospects – ameliorate this and give more help for settlement
How do economic migrants become permanent residents?
• Ss. 11, 21 and Reg. 70-72, 74, 86
• Generally apply for visa as a member of one of the econ classes (or family of) before coming to Canada
• Meet class criteria and satisfy officer they are not “inadmissible” (per IRPA)
• Acquire status upon admission (landing)
Economic Classes r. Part 6 (ss.73-115)
• Skilled Worker Class
• Business Immigrant Class (investors, entrepreneurs and self-employed)
• Provincial Nominees class (the QC stream is a separate category)
• Live-in caregiver class (Carrot to entice someone to come is the future of acquiring status)
• Canadian Experience Class (gives those with previous work or post-secondary experience opportunity to acquire permanent resident in Canada + language) ~ Seems to accord with Arron Talee
All have to do with your experience – last two involve giving temp residents permanent status
CIC Statistics (2007)
• 236,758 Total new PRs
• 131,248 Economic class PRs (Principle applicant and dependant family) ~ has consistently been half
• Econ Class Immigrants are 55.4% of total new permanent residents
• Skilled worked are 74.6% of the economic class
Skilled Workers Class Criteria
• Point system (Selection Grid () – pass mark is designed by Minister, presently 67 points
o Applies retroactively to applications w/o an interview
o Prob- Officer may not have necessary info to properly assess the applicant’s ability to become economically established in Canada
o Lock-in date on receipt of application + all fees
• S.75 2(a) 1 yr of full-time cont employment over past 10 yrs (NOC job)
o when officer gets to file, or when individual applied?
o Open to interpretations of officer
• + S. 87.3, motivated by lack of transferring skills for jobs
o Ministerial can issue Instructions: no processing application unless occupation is listed in the Instructions, or have arranged employment, or studied/worked in Canada one year
o Instructions - Occupation falls in list (1 of 38 occupations in NOC A or B) ~ based on labour market needs, & which are translating well
o Indirect way to create a new criteria for skilled workers
• Reg. 75 National Occupational Classification management/skill level A or B job experience + certain actions performed + main and essential duties
o NOC put together by Human Resources and Social Development Canada listing every job and every qualification (education, actions performed etc.)
o Just to get foot in door – need to show certain compliance with NOC - Doesn’t need to be a certain occupation, just a skilled worker generally
• MUST apply from outside Canada + exceptions
• S. 73 Further definitions
Skilled Workers Selections Grid: Reg ss. 76-83 (P. 301)
• Education (25)
o Primary, Secondary or Pot-Secondary edu.? Total years?
o Based on country of indv., not Canada ~ Is degree legitimate at home
o Qualitative and quantitative (mere showing up doesn’t count)
o Could in theory meet NOC requirement with degree in discipline (descretion)
• Language(24)
o English/French (low/medium/high)
o Oral/writing/speak/read comprehension
o Onus on applicant
o Officer assessment wasn’t effective ~ most indv’s do a recognized language test, and must meet benchmarks
• Experience (21) (*automatic grounds for refusal) eg. p. 306
o Years in your national occupation classification job, prev 10 years
o S.75 2(a) Min 1 year continuous full time employment or equivalent in past 10 years
o Onus on the applicant to show evidence, and determine classifications
o NOC occupation other than restricted, Skill Type O (management), Level A (professional) or B (technical, skilled trades, and paraprofessional)
• Age (10)
o 21-49 is best (prime working years)
• Arranged employment (10)
o + if you have a job, where a gap exists in Canadian labour market
o Additional Reg requirements, permit or approved by officer/HRSDC and won’t work until after PR status
• Adaptability (10)
o Previous work or study in Canada, family living/working here (or your partner)
o R. 83 Partner education level or 2+ yrs studied in Canada (support helps, disadvantages single people)
• = Pass Mark? Note s. 76(3)(
• + Minimum funds
o $10,833
o With a family 20,000
o Settlement funds show you’d be able to establish yourself in Canada (low-income cutoff used from another gov dept)
• Family members can immigrate as dependents of principle application, if not inadmissible
• Reg. 76(3) Substituted evaluation (per minister)
o opportunity for officer to substitute their own evaluation (where appears point calculation doesn’t reflect thriving ability)
o Officer must obtain concurrence from a second officer here
o Must only seek to exercise upon request from applicant, then w/ slim chance of success, duty to inquire
Dogra - High School Councelor
• Applicant had counseling experience in India and NY, but officer said she didn’t know enough about Canada and so her experience wouldn’t translate here and wouldn’t be a benefit as a guidance counselor here.
• Must know about high school kids in Canada, ‘Do you know what cocaine is?’
• Attacked the process – didn’t know the case against me; q’s were inappropriate, and irrelevant in the circumstances; Didn’t take into account my experience – should be based on my duties
• Court granted judicial review, unreasonable decision, recommendation letters were fine (not fraudulent)
• Requirements for this job don’t actually include knowledge of Canadian customs or culture - ‘Maybe it’s helpful to have a diverse cultural background’
• Didn’t’ shut down the idea of ‘how well experience translates’ – just didn’t work here
Sheik - Refusal of skilled worker application
• Refusal of a skilled worker application based on officer’s finding of fact about education/experience points.
• No error of law – but applicant said they should have assessed evidence differently (resulting in more points)
o Experience should have been put in different category, and diploma should have counted for more points
• Substantive issue – dismissed by courts
• Court and Visa assessor have no duty here, onus is on the applicant to put forward best case to officer
• Grey area about education common knowledge – but no one is required to go beyond information in front of them when assessing the application
o But chance to give you more evidence?
o Duty of applicant to do this initially (put forward best case)
o Not officer’s job to tease out best case
Chen
• SCC adopted the dissent of CA – Robertson p. 323
• A ‘substituted evaluation’ case; the points system isn’t binding since the officer can substitute a ruling to overrule a points finding (Either below or above the cutoff).
o New legislation reflects Chen - s.76(3), Reg 109 allows officer to substitute factors in 102(1), based on their evaluation of the likelihood to become economically established.
• Seemed perfectly eligible, except thanked visa officer with $500 in card
• Application reassessed – along with discretion that points may not accurately reflect ‘successful establishment in Canada’
o Did not think he would successfully establish due to the bribe
o Moral turpitude
• Dissent says alleged bribe couldn’t be a relevant or overriding factor to overturn his otherwise successful application. The adjudication is all about determining likelihood of economic success, not other things, like moral fitting in.
o Restrict to matters relating to ability to make a living
o S. 9 and 19 specifically addressed exclusions for committing act warranting such
Business Immigrants, R. s.88 Defn’s
• Ability to create jobs for themselves + other Canadians, contribute capital to the economy through investment, and stimulate economy
o Sufficient experience of intent and ability
o discretion of the officer, but in good faith (intended to bar frivolous applications)
o Must fit within scope - JR of Visa officer’s interpretation
• Investor: “Business experience” + 800,000 “net worth” (legally obtained) + intention to make 400,000 “investment”
• Entrepreneur: “business experience” + $300,000 minimum “net worth” + able to meet conditions in Reg. 98
o Reg. 88 Qualifying Canadian Business (creates jobs)
o Business experience, will create jobs, min net worth
• Self-employed Person: Relevant experience + intention and ability to be self-employed in Canada and to make a significant contribution to “specified economic activities”
o Someone who has intention and ability to be self-employed and make a significant contribution to specified economic activities in Canada (incl. cultural or athletic field or farming)
o Criteria for contribution = p.352
Qualifications Selection Grid Reg. 102 – 104
1. Must qualify as business immigrant (one of above 3 classed)
2. Need 35 points + to pass > 5 Criteria
o Age
o Education
o Language
o Experience (modified per Reg s. 103)
o Adaptability (business specific Reg s. 104-105)
• Reg. s. 109 Substituted evaluation
• Reg 103(3) – Sets ups selection criteria for self-employed
Rahim v. MCI
• How the courts deal with business criteria
• Whole point of entrepreneur class – ID those who could translate skills here, includes 2 years experience and controlling % of equity in qualifying business
• What does it mean to have a ‘controlling interest’ in a corporation? This is important for whether one qualifies as an ‘investor’. The Court resolves whether it’s the person who owns the shares, or owns them ‘de facto’.
o Silly but – don’t have voting shares, can’t control it here.
o Control can include ability to transfer or revoke in trust
• [13] – Court discussed whether they had to follow a precedent of a lower Court. They say it’s more important to look to immigration’s policies when trying to interpret provisions, rather than previous decisions etc.
Other Economic Classes
• Moving towards these classes more than previously
• Quebec Skilled Worker Class
o Reflect provinces own program
o Shared with national, but …
o National tends not to go behind nomination
• Provincial Nominee Class
o Exception to ministerial instructions
o Trust and intention of residing in that province
o Federal can go behind provincial nomination (policy)
▪ Sufficient reason to believe applicant does not intend to live in province that has nominated them
▪ Investor scheme suspicion
• Live-in-Caregiver Class
o Unique – come as temporary residents with the possibility of attaining permanent residency
• Canadian Experience Class s. 87.1…
o Individuals with experience are likely to be able to integrate more easily
o Status – must have been studying under proper temporary resident status, or work permit
o Language Proficiency
o Some cases education – post-graduate experience
▪ If doesn’t have – require 2 years fulltime, over a period of 3 years
▪ Or one year of work (..?)
Class 10
Economic Classes con’t. (Theory)
~ Relationship b/w immigration and economic growth
Schools of thought - Declining forces of immigrants
Callacott – Looming Labour Shortage and Img?
• Implied message Canada’s economy cannot grow without immigration~ unwarranted
• Need a larger workforce, premised on the assumption that we’ll have a larger population; more retired; skill shortage
• More rational use of workforce, better training and education, more use of women and older people continuing to work
• Must ensure numbers and qualifications in fact serve the nest interests of the country, selected where reasonable prospect of employment per qualifications exists
Tolley – Skilled Worker Criteria
• Emphasize human capital attributed and flexible skills, rather than specific intended occupations (new IRPA does better)
• Education
o Pre-immigration education has smaller effect than post
o Challenge of recognizing foreign credentials
• Language used at home has biggest effect; though language and earnings is not strictly linear relationship, but correlated
• Labour market discrimination – Imm’s can’t typically find employment in the field that got them through the door
• *Arranged employment – flexibility
Heibert- Poli Econ of Migration in Canada
• Human capital – Do People have the skills to succeed economically?
o Generally they are more educated/successful employment history than Canadians
o Family - may or may not be able to integrate the same way as the
• Economic restructuring – Kind of jobs Imm’s traditionally filled are disappearing, and they’re fitting into ethnic enclaves as entrepreneurs – this structure has really benefited Canadian middle class, but not immigration class
o Prices driven down as Canadian’s can buy a wider variety of products for less
o Feel Good Factor
o Anecdotal decline ~ more critical (reflecting economic reality and immigration policies?)
• Welfare type state – Diminishing benefits; While imm’s need them more, they use them less (b/ instead are linked to employment)
> Immigrants bring skill into the country, but don’t have equal footing to compete with the domestic middle class; but they provide cheap labour etc. This is why the program doesn’t result in the policy goals of the system, since immigrants don’t really benefit, but resident Canadians do, which is why there tends to be positivity about immigration.
Eg. Beth & Hideo? (there’ll be a question like this on the exam)
1st thing you’d look at – which stream will apply to them? Questions gives hint – only economic class fits.
• a) They’re married, so only 1 needs to get in, but you should ask for both, so that both are evaluated, thus doubling your chances of acceptance.
• Beth has the best chance of acceptance as a skilled worker. But it’s still worth asking them about disposable income, so the business category might apply.
Must assess her points total –
• Education – 20, assuming she was 14 years of study (it’s 12 when you grad from high school); so ask her this!
• Official Language – 16 (she has Eng lang uni degree so she’s fine; if you don’t, you have to write a certified test (best route, but very difficult) or other various means (ie from an English-speaking country). Ask her whether she speaks/understands any French.
• Experience – dblchk she meets skilled worker definition, so to get processed, she must meet ministerial instructions. You must then look to NOC jobs to see whether her job fits, and whether it’s skill level A, B or management. So ask her what she’s done to make sure she’s got the requisite qualifications to satisfy these categories (ie get letters from employers, tax returns, etc); she must prove she got this job (college vocational instructor). Her 3 months as a lawyer is insufficient; it must be minimum 1 year. So she’d probably get 19 points.
• Age- 10 points; she’s in the ideal age group.
• Adaptability (83(2)) – Hideo would get 5 education points, so that translates to 0 points for Beth; what is the status of Beth’s sister; there’s no arranged employment. (I think prof said she’d get 5 points for the other criteria here).
So she gets a total of 70 points, which is above the threshold.
If she’s rejected, what about him – is he self-employed? We’re looking for athletics, farming etc.
Class 11 Feb 11
PERMANENT RESIDENTS - FAMILY CLASS (REUNIFICATION)
• Spouses
• Conjugal Partners, common-law partner
• Children (dependents)
• Parents
• Grandparents
s. 3 Objectives
• 3(1)(d) The objectives of this Act with respect to immigration are … to see that families are reunited in Canada
• 3(2)(f) “ with respect to refugees are … to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada
• Specific objective for families; + Canada has signed on to several international treaties protecting the sanctity of the family.
Family reunification under IRPA, accomplished in two ways:
1) Applicants for PR can include dependents in application
• “accompanying family members” as distinct from “members of the family class”
• PR incl. economic, family or refugee
• Spouse/CL partner, dependent children/grandchildren
2) Canadian citizens/PR may sponsor PR apps made by members of defined “family classes” (
• 18 yrs +, undertake to support for 3 – 10 yrs
• Spouse, CL, or child
S. 12 (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.
• Includes grandparents – but they are deliberately reprioritized
• Conjugal partner (Spouse/CL), 16 yrs +
• Dependent children, include adopted children or intended adoptee of sponsor under 18 yrs, children under guardianship (orphaned minor relative)
• Last remaining relative
o Brothers, sisters, nephew and nieces or grandchildren who are orphans, under 18, and not married or in a CL relationship
o One relative of any age if there is no aunt, uncle or family member from the list above who could be sponsored or who is already a Canadian citizen, Indian, or permanent resident.
• Non-orphaned siblings are omitted, but can be brought by a sponsored parent (only if foreign national sibling is a dependant child)
• Further definitions in s.2 – conjugal partner, marriage, relative, etc.
|FAMILY CLASSES |Target Levels |#’s Admitted |% of all PR’s |
|Spouses, partners, children and |49,000 – 50,000 |50,416 |21.29 |
|others | | | |
|Parents and Grandparents |18,000 – 19,000 |15,814 |6.68 |
|Total Family Class |67,000 – 69,000 |66, 230 |27.97 % |
|Economic Class |Total |Percent |Principal |Dependants |
| | | |Applicants | |
|Skilled Workers |97,857 |74.56 |41,253 |56,604 |
|Business Immigrants |10,179 |7.76 |2,808 |7,371 |
|Provincial Nominees |17,095 |13.02 |6,329 |10,766 |
|Live-in Caregiver |6,117 |4.66 |3,433 |2,684 |
|Total Economic Class |131,248 |100 |53,823 |77,425 |
Family Class, Part 7, s.116-137
Requirements
• One must be a family member (defined)
o From Reg. s. 4-5, we know that the key req is a “genuine relationship”
o s. 4. For the purposes of these Regs, a foreign national shall not be considered a spouse, a CL partner, a conjugal partner or an adopted child of a person if …x, is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.
• Must be sponsored by family member, who is a Canadian Perm Res (or included in App.)
o this is an agreement to support the family member for 3-10 years, depending on the nature of the relationship.
• (+) you don’t need to pass the above points test
• (+) This class can skip the exclusion on ppl w/certain medical conditions
o ie they’ll let your kid in if he’s sick, even if they wouldn’t have let you in to begin with if you had the same condition.
o IRPA s. 38(2) and IRP Reg. 24 “excessive demand” medical admissibility is not applicable if applicant is spouse, conjugal partner, common-law partner or dependent child.
• Econ/social/cultural benefits not presumed – separate study.
Exclusions under s. 117(9)(d)
• Family member not disclosed when family member first emigrated to Canada.
• Medical conditions of family member may render principal ineligible (?)..*
Bona fide relationships and Onus with prior deceit
Sanichara v. MCi 2005
• Regs exclude non-bona-fide/genuine relationships
o Spouse is disqualified only if (1) the marriage is not genuine; and (2) the marriage was entered into primarily for the purposes of acquiring any status or privilege under the act (intention element is removed)
o AND conjunctive (must be both), bit of a shift from old caselaw
• In judging legitimacy of marriage, tribunal looks at straightforward facts - frequency of phone calls, household routine, details of marriage, etc.
• Determine plausibility and credibility of the testimony and any other evidence before the IAD - contradictions without explanation.
• On BOP did not establish that marriage was not solely in order to immigrate to Canada; also no reviewable error to justify the Court’s intervention.
Salh 1988
• He’d made a fraudulent refugee claim – deceitful to board prior about marital status.. now claim via arranged marriage
• Officer held marriage to be a last ditch effort to immigrate
• Tribunal decision looks at evidence of marriage first in light of Legislative requirements
o Old test: Spouse is disqualified only if the marriage is entered into primarily for the purpose of gaining admission to Canada AND not with the intention of residing permanently with the other spouse
• They deal with his previous abuse of the immigration system by saying his previous behaviour notwithstanding, the marriage agreement seems fine, and that’s what we’re looking at.
• Dissent: Prior deceit creates a substantial onus to prove marriage (on the probabilities, becomes harder with case against him)
o Incorrect.. But got around legislation of just focusing on marriage
• *Assess credibility of marriage evidence, in and of itself.
Processing
Two applications required:
• (i) Sponsorship (processed in Canada first)
• (ii) Permanent resident (visa) application (by family member) – meet class criteria
Remedies if an application is refused.:
• Permanent resident (visa) applicant may seek judicial review (must exhaust appeal rights), s. 67(1)
• Sponsor may appeal refusal of visa application to the Immigration Appeal Division of the IRB [IRPA s. 63(1)]
o Except where inadmissible for misrep, security or criminality
o H&C can only be exercised if applicant’s fall within proper defn’s - member of the family class, + the sponsor
o H&C can includes examining evidence anew
• IAD holds a hearing de novo
Class 12 - Feb. 25th
Family Class con’t.
> Sponsorship
> Effect of inadmissibility of family members
Spouse
• S. 2 Must be a valid marriage both in Canada AND where it took place (foreign marriage recognized as valid under Canadian law).
o Polygamy is not recognized in Canada
• “Validity” includes both legal capacity to marry (essential validity) and technical aspects of marriage ceremony (formal).
o Formal is determined in accordance with the laws of the jurisdiction the marriage took place
o Essential includes: prior existing marriages, non-consummation, consent, and prohibited degrees of consanguinity.
Bhatti
• Must determine the validity of the marriage; only in the family class if they qualify as ‘spouse’.
• They find the marriage isn’t valid because the Dad signed the marriage certificate, but Paki laws require that the spouse or someone with power of attorney sign the certificate.
• Shows that it’s not just about the Canadian laws; also consider laws of the country where the marriage took place.
• Spouse or CL Partner Class in Canada may be sponsored
o Per “Spousal Policy” includes out of status applicants
o Cannot have an enforceable removal order against them
o Exception to General rule that applicants for PR visas may not apply from within Canada
o 6 mo’s, v. outside 8 – 17 mo’s; visitor visas will not be granted to those wishing to enter Canada for the purpose of having their application processed from within.
CL partner v. Conjugal
• They both require a relationship of min 1 year, but CL partner (reg s. 1) requires cohabitation, conjugal partner doesn’t (reg s. 2)
• Conjugal means it’s like a ‘marriage-type’ relationship
o Accounts for extenuating circumstances of a relationship.
o Look at several criteria to assist in determination (M v. H):
o Shelter (living arrangements), sexual/personal behav (exclusive, committed and evidences by emotional, intellectual and physical interaction), services (mutual assistance), social activities, Economic support (financially independent or dependent, joint assets?) children, special perception (treated or perceived by the community as a couple).
• Macapagal
o Relationship must not be barred by legislation that would prohibit them from getting married if they were in Canada.
o Must not be in bad faith ~ genuine, bona fide
o Looks at M&H factors; finds no relationship.
• Caron
o Same-sex partnerships CL, conj, (SCC, Marriage 2004) - look at same factors; timing of relationship to meet def’n was at issue here
o 2 things to note procedurally – Minister’s rep conceded there was a conjugal relationship during the relevant period, but the ‘judge’ still had to come to this finding as well.
o Appellant has the Burden of proof on the balance of prob. to demonstrate the relationship meets the requirements.
Sponsorship IRP reg s.130-137
• To be a sponsor, you must be 18+
• Reside in Canada
o Exceptions – spouse who doesn’t reside in Canada but is a Can citizen and intends to live here w/sponsored spouse
• File a sponsorship application.
• Must make an undertaking of assistance (3 or 10 years, with exceptions), ie promise to care for sponsoree financially for a given period of time
o A K must be entered into by sponsor and gov.
o Assigns any debt owed to gov, to sponsor (eg. to provincial gov for social services)
o Repayment never happened, no mechanism set up to collect
• Sponsorship application may be rejected
o criminality and financial requirements
o H & C allowed
Sponsorship application processing times:
• Adopted Children, Children to be Adopted and Orphans
o Processed daily on a priority basis
• Spouse, CL or Conjugal Partner, Dependant children and Other relatives
o Jan 21, 2009, 37 days
• Parents and Grandparents
o October 30, 2006 – 27 months
Parents & Grandparents ()()
• Vaziri
o Allocating resources to control immigration #’s and policy
o Deliberate prioritization against parents and grandparents in processing time
o Challenged gov’s ability to to do this against the interests of parents and grandparents – Court held they are within their right
• So who is a parent anyways?
• Vong v. MCI
o Minister wants decision to allow appeal overturned;
o Wants definition of ‘parents’ not to include step-parents
▪ IRPA doesn’t include definition of ‘mother’ or ‘father’.
▪ They look at French definition, which says ‘parent’ requires blood relationship; another definition of parent says related by blood or adoption (Vong made strong argument about looking to a number o factors for legislative intent, pointing to domestic family law for scope of ‘parent’).
▪ Judge says it wasn’t legislative intent to include step-parents. ~ H&C, Ministerial discretion!
o S 15 argument of equality, per Gooseman?
Dependent Child
• Someone under 22, AND not a CL spouse or partner (s. 121)
• OR over 22 AND have been, since before 22, substantially financially dependent on parents AND full time student or unable to self-support because of physical/mental condition.
• Sandhu v. MCI 2002
o Bday was 8 mo’s after sent in application; 36 months before it was processed
o 1st Lock in date - looked to date of receipt of application
o 2nd factors not locked in (read in as decades of departmental policy)
o Studies also has a quantitative and qualitative aspect
• Eg. Exclusion of children in married like relationship – Various IRPA objectives; International obligation and best interests of the child – resolve as charter issuer (right bearer), or H&C discretion (rule breaker asking for benevolence)
Inadmissibility
• Exemption from point system, and partners/children from excessive demands on health/social services – but:
• s. 40(1)(b), inadmissible if sponsored by an inadmissible person
• s. 42, foreign national (except protected person) is inadmissible if their (accompanying and sometimes unacc.) family member is inadmissible (exceptions re: certain non-acc dependents IRP Reg., s. 23)
o Reason for non-disclosure
o Could sponsor - medical inadmissibility doesn’t apply here
o But when applying together – would render both inadmissable
De Guzman (spent a lot of time on this case)
• IRP s.117(9)(d) – Didn’t disclosed her 2 kids/marriage in her application b/ would have been discluded from the family class and thus unable to immigrate. She admitted to and brought her daughter, but wasn’t able to sponsor her 2 sons to join her once she arrived because of this provision. She challenged this provision.
o Before – punished with potential deportation (which never occurred); people were benefiting from own non-disclosure
• Argued 3 things:
o Outside the scope of the legislation
▪ Delegated authority - overstepping its bounds with this provision, since it’s trying to impose punishments outside the scope of IRPA and the regs.
▪ S. 3(3)f (
o s.7 argument; Non-interference with the family
▪ IRPA s. 25 as an alternative
o international law argument; Rights of families to live together and best interest of the child
▪ s. 3(3) f – to be compliant with IN obligations, must override s. 117(9)(b)
▪ Also talk about s.25 and the best interests of the children
• Family reunification v. admissibility concerns
• Rights v. moral culpability of misrepresentation
• > Comes down to Enforcement/control of border
Issue # 1 - IRPA & purpose – authorizes Restricting regs? or inconsistent ?
• Mostly arguments that went nowhere – division of IRPA each authorizing regs as limiting, no; Generally suitable consequences for misrep; Right to sponsor in Leg, can’t be removed by regs, no
• Selection of immigrants and reuniting families - It’s NOT about culpability, this is outside its scope and is not consistent with the framework of the legislation/IRPA as a whole (divisions for reg permission)
• Found: Can use enforcement ~ act should be read as a whole
o ~
o Best Interest of the child has it’s own place (s. 25), need not roll in with every single provision
o Is this consistent with the court’s interpretation to read the act as a whole?
o How much was the decision influence by D’s moral culpability? Eg. As opposed to father who didn’t know of, or were estranged from their children.
Issue #2 – S. 7 Charter Argument
• s.7 - State interference with family unity and thus liberty
o Court says s.7 isn’t engaged because there wasn’t a sufficient nexus b/w the state action and the separation
o Charter only protects against state action - court says she was the source of this separation, not the gov.
Crt also looks at s.25 IRPA H&C as an alternative provision to the challenge presented above , to bring sons
o Risk of reliance on “H & C” as the go to provision, rather than classes generally
o Now there is an H & C specific to s. 117(9) exemption
o Must see s. 25 more broadly, when court construes as a potential solution to charter challenges.
Issue #3 - International argument.
• S. 3(3)(f) was interpreted as making IN law more than contextual, but less than full incorporation
o IN law is generally adopted - helpful, contextual
o Legislation must be crystal clear if it will conflict
o if any way consistent with IN law, then must be read that way
o Unclear legal status where Canada is a “signatory”; but where Canada is legally bound, this applies (court digresses)
o Not each provision as consistent, but whether prov w/ others, renders IRPA as a whole non-compliant
• Court finds s. 117 is consistent
o IN consensus that it’s open to a state to regulate its borders and regulate immigration policy
o This is about who can enter; which is different than deportation; CRC doesn’t force allowing entry
o D brought this on herself, and also s. 25 is another door for her children. State is not prohibiting reunification.
• This resulted in a law change, in regards to s.3(3)(f).
• It has to do with improper exercise of delegated authority.
Audrey Macklin “Public Entrance/Private membership”
• On sponsorship undertakings generally, which she says is related to the rise of the social welfare state. She’s especially critical of the sponsorship criteria related to being on welfare (related to Guzman).
• Rational for family class reflected in a fundamental economic bias
• 1st Critique - Women sponsored by spouses
o Imbalance of power
o Disinclined to leave – abuse, etc, while application is pending
• 2nd – Undertaking traced to the rise of the welfare state
o state has more responsibility to members to provide more services and supports – so they began letting in few immigrants
o Why is sponsorship undertaking imposed for family coming afterwards, but not along with principle applicant (eg. like econ class)? or for Canadians generally?
▪ less trustworthy? Criminal code provisions not enough?
▪ Just about controlling entrance numbers
o Fundamentally about economies – over family reunification
o Bureaucratic reorganization explicitly undermining class and certain individuals within the class
▪ … or else it’s just random
Guzman v. MCI
• Young immigrant with a child here, who married a temp res;
• She was on welfare, but he could work if she could sponsor him;
• She was denied b/c she was on welfare, so she argued against the provision using s. 15.
o Generally the purpose is to prevent people from being a economic drain – based on this makes sense.
o But here, he could work and help the family to be more economically stable – provision didn’t work here.
• Result? .. too bad.
> Classes really separate? Or econ concerns supercede everything? (w/ CRC in its own pocket??)
Class 13 - Feb.27th
TOPIC THREE: REFUGEE PROTECTION
REFUGEES: INTERNATIONAL CONTEXT ss. 3, 3(2), 96-98, schedule
UNHCR - Lesley Stalker Assistant Legal Councel
• International and domestic refugee protection
Refugee Distribution
• 2,65400 - Middle East and North Africa
• 2,271,200 - Africa, excluding North Africa
• 2,674,200 - Asia and the Pacific
• 1,580,500 - Europe
• 499,900 - Americas
o TOTAL: 9,679,800
Protracted situations/Camps
• Where refugee populations of 25,000 persons or more have been in exile in a developing country for 5 years or more
• UNHCR estimated that in 2005 over 6 million refugees in protracted situations and more than 30 locations
Historical Background
1914 – 18 – Never again!
o Russian revolution and Europe
o Leauge of Nations, 1920
o 1st issues – IDPs and Refugees as a threat to stability
o Responsibility IN community for large groups of people was hard to sell
1939-45 New wave of horrific prosecution
o Moral/physical shell shock – 14 mil refugees
o Number of temporary organization set up tp respond
1950, Dec – UNHCR
1921-1930: High Commissioner for Refugees of the LoN
• ’21 – starting point for refugee law with the High Commissioner for Refugees of the League of Nations.
1931-1938: Nansen International Office for Refugees
1933-1938: High Commissioner for Refugees coming from Germany
1939-1946: High Commissioner for Refugees under the LofN Protection
1939-1947: Inter-Governmental Committee for Refugees (IGCR)
1943-1947: United Nations Relief and Rehabilitation Administration (UNRRA)
1947-1952: International Refugee Organization (IRO)
1951- United Nations High Commissioner for Refugees + Convention
1967– Protocol to remove temporal/geographic limitation on refugee defn
+ Regional Orgs to more fully address local nature of refugee problem
Definition of refugee from Art.1A(2), ’51 Refugee Convention:
A PERSON WHO owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or, owing to such a fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside of the country of his habitual residence as result of such events is, unable or, owing to such a fear, is unwilling to return to it.
• It’s an indiv assessment; each indiv is assessed as a refugee
• The indiv must have a well-rounded fear of persecution
o subjectively and objectively; ‘objective’ part can be difficult, because the officer is considering the ‘country of origin info’, and this info can be very limited & hard to come by.
• They must be persecuted
o But what does this entail? It isn’t actually defined.
o It’s been considered a threat to life, serious violations of human rights; it can be cumulative.
o Def includes specific reasons for persecution, and there must be a nexus b/w the persecution and the supposed reasons for it (ie race, religion, nationality, membership of a social group/political opinion).
• They must be outside their country of nationality.
o What about IDP’s (internally displaced persons)? Or stateless persons
o UNHCR is doing more and more to help these ppl.
o > Article on IDP’s; Locher and Betts ??
• 51 Focus on civil political rights vs. socio-economic rights
o Hathaway p.470: “Convention adopted an incomplete and politically partisan human rights rationale.”
• 51 Scope limited to persons who became refugees as a result of events occurring in Europe before 1 January 1951 (1967 Protocol removed limitation)
UNHCR [General Assembly] has 2 big arms:
• International Protection
o Who qualifies?
▪ Refugee status determinations (80 countries) ~ though seems to be compromising mandate w/ many inadequacies (secretive, x impartial etc), new policies..
▪ IDPS? Difficult due to this historical relationship b/w State and its people; sovereignty and territorial integrity towards non-intervention; not necessarily accessible to IN assistance
o Promotes adoption of instruments, critical role in policy making
• Obtaining Durable solutions
o Repatriation (voluntary, not forceful – when safe return permits); local integration in country of asylum; resettlement to a 3rd country (when 1st two can’t happen; you leave the 1st for a 2nd one temporarily, then to the 3rd) – usually Canada/US/Australia, who are the hardest to get to.
o 1/400 spots available (100 000 total)
o Responsibility-sharing/refugee distribution
o Protracted situations/camps
• Encourage government to sign conventions
o Limited at first to Europe, and events prior to 1950 causing displacement
o But 1967 protocol to expand, recognized and acceded to
• 51/67 conventions as core instruments for these responsibilities
o But changing nature of asylum(
• Tension exists on the role it should play – supervisory v. limited influence it wield with states
Numbers for Protection
• Responsible for 11.4/16 mil refugees worldwide (x Palestine)
o Physical and Legal Security
o Usually not far from place they fled, & Rebels continue persecution
o Shelter, water, food; security within the camps (rape)
• IDPs ? 51 mil (Half conflict and half from natural disasters)
• Returnees – 731,000
• Stateless persons – 3 mil (/12 mil) – Hard to count
o Soviet Union & Baltic states; Kenya
• 31.7 mil // 67 mil/
Revolt & Reform-
• Challenges to ’51 Convention’s relevance (Critique of Articles)
o Former UNHCR High Commissioner Ruud Lubbers acknowledged that while the “51 Refugee Convention remains the cornerstone of the international refugee protection regime,it alone does not suffice.”
• The Law of Refugee Status
o Conventions focused on protection status (from x)
o In relation to the soviet bloc, accepted civil and political dissidents; w/o allowing victims lacking other basic rights (food, education, health care) ~ so couldn‘t take political advantage
o 1967 helped distribute Europe’s WWII burden throughout UN members, removed ‘events before 51 only’ limitation
• The Agenda for Protection, arising out of the 2001 Global Consultations on the 1951 Convention’s 50th anniversary introduced the notion of Convention Plus in 2002:
o The “plus” concerns the development of special agreements or multilateral arrangements to ensure improved burden sharing, with countries in the North and South working together to find durable solutions for refugees. This includes comprehensive plans of action to deal with mass outflows, and agreements on “secondary movements”, whereby the roles and responsibilities of countries of origin, transit, and potential destination are better defined. It also includes agreements aimed at better targeting development assistance in refugees’ regions of origin, and multilateral commitments for resettlement of refugees.
o Focus on burden sharing
o We are trying to expand the Convention in a period where states are receding from their original obligations; disconnect between their stated intention & what they are willing to do, party because of post-911 increased securitization
• Crisis and Cure’ Hathaway
o ‘Hathaway (the man for refugee law), wrote about a temporary return regime. Collective framework emphasizing temporary protection in the region over the individual system for assessment and asylum.
o Analogy to insurance scheme for states for equitable burden sharing arising from the massive influx of forces migrants
o Standard consistent with fundamental human rights – devised to facilitate repatriation.
o This article is attacked (incl in our reading) because it is seen as de-emphasizing countries duties to the refugees.
o There’s also an idea of ‘commodification’, where the refugees are becoming a commodity, essentially being traded etc.
Class 14 Mar 04/09
Refugees: International Context con’t.
Non-refoulement
• This is what really matters in refugee law.
• Article 33(1) of the ’51 Refugee Convention
o No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion
o A right not to be sent back (So it’s not a right to enter, although this is a minor distinction) for a refugee facing persecution.
o So this changes a country’s right to let or not let in whoever they want; technically, they don’t have to accept them, but they can’t return them if they’re getting in.
o It’s a humanitarian consensus that has led to countries allowing this exception in their sovereignty; we should be letting these ppl in.
• Regional Expansions and Qualifications on the principle
o OAU Convention (1969)
o Cartagena Declaration (1984)
o Compare: “Qualification” directive in Europe which limits 1951 Convention definition to non-European Union citizens
• + Rights of protection from punishment for illegal entry, prohibition from discrimination, freedom of association, movement, religion, and access to education, employment, and social assistance
Reality
• Duty of non-refoulement
o Government reluctant to admit refugees into their territory, esp at border crossings and airports
o Looking for effective migration management – trying to decrease bureaucracy backlog, and don’t want to be overwhelmed with numbers
o Ideas of extra territorial processing and/or protection in region of origin
• W/ increasing economic migration around the world, obvious need to set procedures and reform.. not of values, but how it operates
• Canada
o Out of 67 mil – only responsible for those who make it to our border
o The number was decreasing since 2001, now seems to be climbing dramatically – 20,000, to 30,000 +
o Pressure on Gov and legal aid
o Immigration and refugee board backlog
• UNHCR & Process
o But changing nature of asylum = difficulties; IDPs, econ migrants, security concerns, costs to states associated with asylum, growing scale of migrants, rising numbers in 90’s
o States increasingly restrictive policies
o Shift since the cold war of states moving from asylum to containment in region of origin; numerous policies designed to reduce #’s (non-arrival, carrier sanctions, STC, detention, denial f social assistance)
o Response Agenda for protection(
• Is Denying access to refugee determination in Canada – denying protection in general?
• Burden sharing (safe 3rd country) – denying protection by offloading onto a 3rd county?
Safe Third Country Agreements
• Purpose: To share burdens for protection required by the convention
• Stop individuals at US, to avoid having to process claims, which are less well founded than others – or which could be processed elsewhere
• Regs permit Canada to enter into these – pushed by Canada
o S. 101/102, Reg 159.1-.7
o Only apply to borders, for logistical reasons (must know where someone came from)
• US agreed after Sept 11, for increased control over borders
o Agreement does work 2 ways, but not a lot go to US from Can
• Have because Mexican refugees were dwarfing claims from Columbia, Somalia and Zimbabwe
o Accept 15%, compared with 58%
o Higher number, plus higher refusal = resource backlog
• Exceptions – such as with one family member in Canada, unaccompanied minor, a stay issued; exception to the exception such as offence punishable by death penalty (p.487)
• Advantages: Prevents forum-shopping; avoids assuming responsibility for those whose refugee claims US has already rejected
• Critiques: Seals the border; asylum seekers should be able to decide where they wish to resettle
Reg. 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if [...]
(e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence
102. (1) (a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture…
(2) The following factors are to be considered in designating a country under paragraph
(1)(a):IN Law
(3) The Governor in Council must ensure the continuing review of factors set out in (2) with respect to each designated country.
159.3 The United States = STC
159.5 – Narrow exception to permit crossing
Canadian Council for Refugees v. MCI, FC/CA on STCA
• Attempt for crts to declare STCA invalid, because US isn’t a safe third country (eg’s p. 488), and it results in ineligible refugee protection for certain asylum seekers
• 1. Regs are Ultra Vires – IRPA can only designate a STC that complies with IN conventions or Refugees and Torture
o Regs can’t exceed the scope of statutory provisions empowering it (Must comply with IN!)
• 2. OR Unconstitutional
o S. 7 and 15 – some individuals will effectively be refouled because STC isn’t protecting them
o US- Don’t respect Conventions
o Harmful/negative processing of claims in US which would be allowed in Canada
• Accepted in lower court as unconstitutional
o Crt took a substance approach to the case
o S. 7 applied due to risk of refoulement, where border officials return indv per the STCA (similar to death penalty)
▪ Where Canada's participation is a necessary precondition for the deprivation - an entirely foreseeable consequence of Canada's participation...
▪ FJ – non-refoulement - arbitrariness/lack of discretion and overbreadth of legislation, arbitrary detention, right to counsel and right to review
▪ Canadian immigration officer retains no discretion to allow a claimant into Canada who does not fit one narrow exception to the STCA (for family members and death penalty) - leads to arbitrary results which do not take the individual claimant’s circumstances into account + Arbitrarily only applies to land crossing claimant
o S. 15 - Crt pulled everyone up to Canadian standard – X
▪ deferential assessment with Gender based claims in US leads to risk of harm, not present if claim was processed in Canada
▪ Has a discriminatory effect on the way they deal with terrorists; torture (race and religion), and gender
• CA - overturned
o Regs are w/i the power of the government
o Yes country must comply with Convention (IN Law!),
▪ 102(2) requires the GIC consider, prior to designating a country, the country’s policies and practices with respect to the Refugee Convention and the Convention against Torture as well as its human rights record.
▪ 3(3)f, 3(2)b&d
▪ Objective to share responsible for refugee claims with (
o But not about court assessing if US complies (actual compliance or compliance in absolute terms)
▪ Up to cabinet to decide and designate – did the government turn their attention here? Y
▪ Assessing whether another state is complying with treaty is a political matter – not legal
▪ IRPA doesn’t change this!
▪ Only juridiction to assess if GIC acted in bad faith or for an improper purpose – no suggestion here of this.
o Fundamental as an IN convention – court always has oversight to protect IRPA, which incorporates a treaty
▪ Hands off at the IN level – and 3rd country
• + Ongoing review of (factors pointing to) compliance - Y
• Charter looked at Political Q, not substance
o To difficult in a vacuum – Person must try to get in and be denied- no standing, no one directly effected
▪ “John Doe” had never been presented, therefore not engaged
• Practice has changed
o More log time for CBSA to assess if TCA applies, or exception exists
o 3-5 days – can obtain council and get a stay of removal while they challenge claim (Support of NGOs, lawyers)
• + No violation pf the charter would occur because CBSA officer would have to apply legislation is a way consistent with charter = discretion to see if risk is present and apply law as appropriate
o though CBSA officer has no legal traning..
o perhaps not the best way to circle issue.
further reading on STCA - written submissions filed by the Canadian Council for Refugees for leave to appeal to SCC (denied), they provide a clear summary of the issues raised.
Class 15, Mar 10
REFUGEE PROTECTION IN CANADA - INTODUCTION
• Persons and Process
Convention Refugees and Persons in Need of Protection
Refugee Protection
• This part of IRPA is not about selecting desirable immigrants (or is it?)
• Humanitarian consensus
• International obligations under Refugees Convention and CAT explicitly incorporated in IRPA
• Is there a Charter right to asylum?
Statistics
• ( Helping more people (burden sharing in the world) – allocate more to privately sponsored (3/4 are economically better off – were able to get here; + uses a lot of money spent figuring that out)
o 3. Refugees (s. 12 ) *Non-refoulement
• Dependants (refugees who have left family members)
• Just over 10% acquire permanent resident – into a big part of the legislation or program – but a big part of the discourse.
• Humanitarian consensus, a state pro-refugee?
|Immigrant Category |Number Admitted |Percent of Total New Permanent Residents |
|Government-assisted Refugees |7,574 |3.20 |
|Privately-sponsored Refugees |3,588 |1.52 |
|Protected Persons in Canada |11,700 |4.94 |
|(People who came to Canada and made a claim) | | |
|Dependents Abroad |5,094 |2.15 |
|Total |27,956 |11.81 |
Who has refugee protection? IRPA s.95
s. 95 Refugee protection conferred on:
• Convention refugees
• Persons in need of protection
o Refugees and protected persons determined by the RPD
o Protection claims allowed under PRRA (risk assessment)(
• Protection up until Status has not been vacated and has not ceased
o vacated sometimes, such as for fraud or misrep in original application, but almost never ceased (‘where risk has ended’)
• Persons in similar circumstances selected abroad (IRPA, 13(2), Reg. 138-151)
o Refugee and Humanitarian Resettlement Program w/ UNHCR, referral groups, and private sponsorship groups select refugees for resettlement in Canada
o Sponsor and refugee must meet requirements, unable to return or remain in country granting temporary protection; medical security and criminality screening
“Protected persons”
• IRPA s. 96 ‘Convention refugees’ – international law:
CR is person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, … (x for leaving)
• S. 97 Persons in need of protection (Derived fr Conv against torture)
97. (1) PNP is a person in Canada whose removal to their country/s of nationality or, if they do not have, their country of former habitual residence, would subject them personally… (x for returning)
• How should these be interpreted, applied, and whether their consistent with the charter
• S. 98 Exclusions “A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.”
o Whether person has status or ability to be resident somewhere other than where asylum is being sought
o Being undeserving of protection (criminality, war crimes, crimes against humanity)
• Non-refoulement s. 115
o Prohibitions on return to place where protected person at risk
o Exceptions for criminality, security (again goes against Canada’s humanitarian role), s. 115(2)
o Criticisms of these exceptions – not found in the convention, which calls for absolute protection (also, goes beyond threat to security, to face persecution on the basis of their past acts)
How to make a refugee protection claim in Canada:
( AT port of entry or an inland CIC/CBSA officer, if eligible, refers to IRB
• Prohibitions
• S.99 if a removal order has already been made against the individuals - Cannot be referred to the board,
o Where at port of entry – suspect (docs), and officer makes removal order (person says they understand, happens quickly)
o May be able to make a PRRA – but deportation order is still valid and enforceable
• S. 101 Ineligibility*
o Safe-third country
o Recognition as refugee in another country
o Rejected by IRB already
o Inadmissible on security/criminality grounds
o 101(2) Danger to public, renders those who’ve committed criminal offenses outside Canada ineligible to have claim determines by RPD
• S. 100 If eligible, claim must be referred to RPD w/i 3 days. If no eligibility determination in that time, deemed eligible.
Hearing before the RPD
p. 539* + Charts in Supp.
• May go through trial process or expedited hearing per RPO recommendation (bottom 542)
o Expedited opinion forwarded to board member who decides if claim is accepted w/o hearing
• *Satisfy on BOP well-founded fear of prosecution or qualify for protection
• RPD is Completely independent of the minister and the border guards .. though minister is responsive to parliament, who appoints board members (but is independent)
• RPD Rules - For process, witnesses, disclosure etc.
o Assessing credibility
o The process really is quite court-like
o Sworn testimony under oath, interpreter, council (need not be lawyer), can call expert witness, document support, give testimony and legal argument
o Too formal for those of terrible experiences + culture shock?
o UNHCR has right to observe any hearing
• RPD Guidelines (eg. Vulnerable Persons Guidelines/Gender Guidelines)
o Response to the formalities
o Policy is, if board is going to depart from a case in the guide, must explain why (master of own process).
o VPG designed to accommodate processes that acknowledge the vulnerability of refugee claimants (specific to children and to gender as well – substantive guidelines, which recognize gender based persecution)
• RPD Policies & decisions (eg. Jurisprudential guides)
o Jurisprudential guides & RPD decisions are not precedent, bound by only federal court (but again, must explain departure).
o Attempt to create consistency, but allow flexibility
o Large % are not lawyers
• Inquisitorial, not adversarial, process
o Truth in the middle of P and D.. here trying to draw out the story, with the assistance of the refugee protection officer (like board’s council); and Judge has own ? ; Refugee claimant is entitled to a representative.
o Process may shift to being adversarial, because minister may intervene in the process – particularly where there is an exclusion being argued (eg. undeserving, war crimes etc.).
• Central issue usually is credibility
• F. Crepeau “ The Complexity of Determining Refugee-hood”
o Difficulty is immense.
o Complexity is formed by cultural, psychological and legal factors
o How people lie, how people tell the truth, and cultural factors (eg. eye contact, tone of voice, dates, trauma affected recollection and manner in which story is relayed)
o Claim is Individualized at the end of the day
o As simple as who are you?
o Board members – all Canadian citizens, which colours understanding of credibility
o Appointment process (careful.. has changed since article, done by parliament, with committee review on substantive qualifications; and training)
o [Fact finding, before legal questions]
After RPD hearing
• Person meets definition of protected person – Y positive, or N negative
• Positive determination results in refugee protection but NOT permanent resident status
o S. 21(2) protected person may apply for PR status:
▪ Pretty much automatically granted, unless they are considered inadmissible
▪ Hang in limbo status as a foreign national - can’t be deported
▪ Can include in application dependants overseas, spouse and children
▪ Medical inadmissibility doesn’t apply (unless creates physical risk on Canadians); and no low income cut-off
• Negative determination
o No right of appeal for now, but you can seek leave for judicial review (Removal order is stayed)
▪ Unless RPD states “no credible basis for they claim,” stay will not be issued and removal can occur w/i 15 days
▪ Judicial review – fact finding is deferred (enormously – just within the range of possible outcomes)
▪ Question must be certified
o Also may seek a PRRA and/or H&C consideration
▪ H&C can be made anytime by anyone; but does not grant stay automatically (fed court can order it)
▪ PRRA will only consider new evidence, removal order issued
o Bill C-291 Refugee Appeal Division (In parliament)
▪ Handout.
▪ Paper review (4th division of the board, staffed with special expertise, looking at substance of the claim)
▪ X, efficiency, everyone will appeal – no IN obligation or charter obligation; credibility difficult to assess on paper, standard of deference with backlog
On-campus Federal Court judicial review
Class 16 - Mar 11 – missed*
RFUGEE PROTECTION IN CANADA cont…
Suresh
• Charter right to asylum? Extend beyond torture?
• Non-refoulement is a large factor to weigh in the balance of interests, even against Canadian security
• … (
ELEMENTS OF THE REFUGEE DEFINTION
CONVENTION REFUGEE
5 elements –outside country of residence -- Well-founded -- fear of persecution - nexus to an enumerated ground – X state protection – + x exclusion.
IRPA, s. 96 – A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons (nexus) of race, religion, nationality, membership in a particular social group or political opinion,
• (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
• (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
Canada (A.G.) v. Ward
• Leading SCC case on inclusion in def’n; Pre-IRPA
• Nature of refugee protection
• No need for state complicity in persecution
o includes where state is unable to protect
o Presumption of state protection ( ( well-founded fear + unable to protect = entitled to fear persecution
o [but requires admission or convincing confirmation of state’s inability to protect]
• Unwilling or unable to avail of protection
o Inability – where protection is denied; mere appearance of state ineffectiveness will not suffice; but need not always give sate opportunity to respond, only where objectively unreasonable not to have sought protection
o unwilling opts not to approach the state by reason of his or her fear on an enumerated basis
• Scope of enumerated grounds of persecution (+nexus)
o Persecution as a sustained or systemic violation of human rights or systemic denial of core human rights
o Membership in a particular social group is linked to discrimination
o Political opinion – key is perception and link to machinery of government
o Where effect of the persecution experience is disproportionately experiences by those who share the relevant characteristics (discrimination)
• Dual nationality – avail of second protection
1. Refugee must be outside Country of Nationality/Residence
• Statelessness alone insufficient
• Country of nationality includes country where X can obtain citizenship by renouncing a different one (Williams)
• Kemel
o Application for Canadian passport made by Canadian citizen. Met all requirements for passport. There is provision for Minister to refuse on grounds of national security. Kamel was alleged to be linked to terrorism.
o Justice Noel threw out with refusal because it interfered with Kamel’s mobility rights under the Charter
2. “Well-founded fear”
• S. 96 threshold is “more than a mere possibility”
o [evidentiary vs. legal burden / s.96 v. s.97]
• Subjective and objective elements (State of mind, and well founded)
• Forward looking – from time of examination for status
o Exception: Compelling Reasons Defence out of previous persecution, torture, treatment or punishement s. 108(4)
• Well-founded – often adduce to evidence from the past, or those who are similarly ~ claimant situation viewed in context of relevant background situated
• State protection
o Need “clear and convincing evidence of a state’s inability to protect” to overcome presumption that state protection is available (Ward)
o Presumption that a functioning democracy is able to provide protection (Ward, Carrillo)
o “A claimant seeking to rebut the presumption of state protection must adduce relevant, reliable and convincing evidence which satisfies the trier of fact on a balance of probabilities that the state protection is inadequate” (Carrillo)
o See also: V.S.X. (what kind of evidence is considered?)
• Internal flight alternative(
o Two part test
o Thirunavukkarusu
Class 17, Mar 13?
3. Unwilling or unable to avail self of State’s Protection (s.108(4))
> Internal flight alternative
• Requires a well-founded fear; no reason why they should be able to avail themselves of a viable alternative in their home country
• To what degree – one small place in a corner of the country; what if this place required travel across a war zone?
• Two part test:
o i) On the BoP(, no serious possibilities of persecution in the IFA;
▪ Thiruavukkarusu
▪ Burden on claimant, but obligation on minister/board to warm IFA will be raised
▪ Per procedural fairness, must be put on notice in this particular claim– but then must show risk everywhere
▪ Shouldn’t be more than a mere possibility??
← Between in the areas = not safe
o (Attempt to separate burden of proof – evidential and legal.. though artificial to think the officer goes through it systematically and clearly this way)
o ii) AND - Living in IFA is not unreasonable, taking claimant’s circumstances into account
▪ Unreasonable? Include work, visiting family? Living in the desert of middle of the jungle X; Across war zone X
▪ Objectively reasonable to expert him or her to seek safety there before in Canada or elsewhere.. would it be unduly harsh to expect them to move somewhere less hostile?
▪ Can’t just be speculation – must be reasonable and attainable – and identifiable.
▪ Travel to the IFA; unduly harsh – practically, safely and legally accessible; State persecution? Pursuit on non-state actor? Exposure to other serious risk? (UNHCR)
▪ Not a matter of convenience or attractiveness on the balance (pros and cons), but whether they should make due, before traveling across the world (Refugee protection as a last resort)
• IFA in the conventions – Not required to threaten individual or exhaust all options; nor invoked to undermine human rights tenants underlying the protection regime..
4. The Refugee Must have a Fear of Persecution
“Persecution”
> About international protection – not about granting everyone in the world the same level of protection as is available domestically
o Persecution occurs when there is a threat to life and other serious human rights violations on account of enumerated ground – type of harm that would be inconsistent with basic duty of protection owed by a state to its nationals
o S. 15/Workplace – won’t be characterized as persecution for the case of granting refugee status
• Linking persecution and human rights (discrimination)
• Persecution v Harassment (cumulative effects)
o Bobrik – Board viewed as bad treatment, but that it didn’t quite reach the level of persecution
o Court - Given how extended the treatment was (2 years, no protection available) – cumulatively had reached the level (threshold) of persecution, though on the evidence and individually would just be harassment
o Sexual orientation as a particular social group for the refugee protection (increasingly so) – moved to an issue of credibility/proof; Also, are they facing harassment rather than persecution?.. Hidden nature in some countries creates problem (where does the truth lie? Fear of untrue claims).. forward looking? Where being gay is illegal..
• Persecution v. prosecution
o About international land surrogate protection – protection from injustice, not fugitives from justice
o Prosecution for a crime is not persecution, in Canada (ethical disputes, eg. blocking logging; but no legal dispute)
o Possible for general law to violate funamental human rights and have the potential to constitute persecution
o Problem
▪ 1. Criminalized as offenses outside Canada, which wouldn’t be here (avoiding conscription; desertion)
▪ 2. + Punishment, where a similar offense or act would never attract such a level of punishment here (death penalty).
o P. 575. Test: Neutrality of Law of general application (neutral in a democratic state – like the US)? Whether law is persecutory // Inherent or principle effect of ordinary law // Onus on applicant to show laws as inherently or otherwise persecutory // law n question as realted to a Convention ground (not just oppressive regime)
Zolfargharkani - Would have been chemical weapons used against a Kurdish resistance – Iranian fled and made a refugee claim
o Nature of punishment here different because person was a very vocal advocate against the Iraq war; not just law of general application, conscription, but + illegal warfare = persecution for political considerations – Motive for leaving
▪ Could always link conscience to political opinion (consciences objection – and will go to jail for evasion)
▪ Linked largely – to politically criminal and unacceptable.
o What is individual being asked to do – participate in war crime? Felt it was wrong and contrary to IN law – Against crime – tantamount to persecution.
US Case – Individual + military action + Condemnation by IN community; ‘illegality of war’ irrelevant, no deliberate policy or official indifference for combatants to violate humanitarian law
China cheung – risk of jail and prosecution for being smuggled out. So disproportionate, flips to persecution.
o Gender based claim for not wearing veil – subject to whipping (Disproportionate punishment)
o Brutality under the veil of law is still brutality
• Persecution v. General Risk resulting from Civil War (IRB Guideline 1)
o General breakdown, and state is unable to protect – IS high level of criminality a real risk (kidnap, robbed, extorted), and state can’t protect everyone. Not captured by convention. Require +
o Salibian p. 579 - Difficult because individual risk – not just group (OAU – African, includes both individuals and groups under situations like this, or environmental disasters)
o Can sometimes engage personalized risk aspects, or sub-grp
o To move from one to the other, under same circumstances -- Must link risk to a convention ground.
▪ Applicant doesn’t need to show actual personalized persecution (now or in future); enough to show (more than a mere possibility of) risk to sub-group the applicant or claimant belongs (578? 3 factors) – link to a ground (ie. **Single women…)…
▪ Other approach – differential risk; test was rejected.
o See also: V.S.X.
• Agents of Persecution
o Includes but not limited to state actors
o Where state know and tolerate, refuse, or prove unable, to offer effective protection [Still, link to ground, ie. Mafia = not political]
• Gender based persecution claims
o 1993 IRB Guideline 4: General Proposition; Women Refugee Claimants Fearing Gender Based Persecution (1996 Update)
o Must be followed unless compelling and exceptions reasons otherwise
▪ … Although gender is not specifically enumerated as one of the grounds for establishing Convention refugee status, the definition of Convention refugee may properly be interpreted as providing protection for women who demonstrate a well-founded fear of gender-related persecution by reason of any one, or a combination of, the enumerated grounds.
o If link to one ground – then persecution, even if link is made via path of gender
o OG – Supp 136 – Decision of Refugee Protection Division
▪ [5] Ethiopia, sent on a plane with an Arab man to Lebanon, forced into slavery 20 hours a day.
▪ Found her way to Canada to make a protection claim.
▪ Single women trafficked from Ethiopia at risk of persecution
▪ Board starts with the gender guidelines
▪ Risk related in part to their women-ness, but also to another aspect of the definition
▪ Link gender, to individualness, to risk – for protection
5. Grounds for Persecution
• Persecution motivated by a ground meets the test for Status
o As does non-state persecution where govt’s failure to protect is motivated by one of the 5 factors
• Enumerates, but recognize possibility of multiple, overlapping, or intersecting grounds; claimant may be unable to specify the exact nexus b/w fear and ground; ultimately for decision make to ascertain reasons and qualification
o Eg. Causal link is established where persecutor is unmotivated by a ground but the effect of the persecution experienced disproportionately by those who share the relevant characteristics, e.g. trafficking victims, women – handy work to fit
- Race
• Broadest sense ~discrimination here can often entail persecution (not nec. with other grounds)
- Nationality
• Interpreted broadly to encompass citizenship as well as membership in an ethnic/linguistic group
• 4 forms of persecution: (1) Based on status of person as foreign national; (2) Stateless person; (3) Situation where government strips portion of citizens of their nationality & ascribes a new nationality to them that allows them to be repressed under newly established regime; (4) State is composed of former sovereign states & person in persecuted on basis of action or perceived allegiance to former sovereign state (Waldman, p. 586)
• Dual Nationality: Must establish that face danger in both countries (Ward)
- Religion
• Broad – beliefs, ofranization, rejection of religion
- Political Opinion
• Nature of Poli opinion – Need note be actually expressed by pr ascribed to the claimant
• Chose more broad interpretation – “any opinion on any matter in which the machinery of the State, government and policy may be engaged” (Ward)
o Where political opinion attracted persecution
- Membership in a Particular Social Group
• Perspective of last resort, and anti-discrimination (s. 15)
• + Group cannot be defined by persecution alone (eg. X just grp subject to torture)
• V.O.G. – not women at risk in Ethiopia – but women who have been trafficked.
• Ward affirmed this is not a “catch-all” category
o Not allowed here – wasn’t part of a group discriminated against
• Chan
o Forced sterilization of women
o Man – restricted to one child
o Majority – not a member of a particular social group – defining it by nature of the risk alone
o Lafore – (Judge from Ward) Group unchangeable in characteristic.. so fundamental to their dignity, historical permanence… Would find Mr. Chan fits
▪ Distinction between what one is, or what one does
▪ Someone who might have another child – parenting is what someone is; not does (distinction is probably too formalistic – though not moving away from test)
▪ Group – don’t have to voluntary associate in a formal way – Agent of persecution, if seen as having a shared attribute; whether you would feel united with those is irrelevant; but whether you can be seen as having a shared attribute (From Audrey Mackland)
▪ Individuals who have more than one child (Group) + risk attached.
EXCLUSION CLAUSES
• Intended to protect the integrity of the institution of asylum
• But should incorporate a proportionality test to balance conduct for exclusion with consequences of refoulement – so that it stays consistent with the overriding humaniarin object and purpose of the Convention
Article 1E - Last resort provision
Convention shall not apply to a person recognized by competent authorities of the country of residence as having rights and obligations of those with nationality.
o Must be able to enter and remain relatively unconditionally (Shamlou)
o Do not need right identical to those of a citizen, but ability to return and remain in country; consistent with international conventionas and treaties relating to rights and obligations (Kroon)
o What if rights existed (Status), but lapsed when they came to Canada? Open to officer to look at circumstances as they are at the time the determination is being made – but also take into account circumstances as they were when they came to Canada
Article 1F > Don’t want to protect people doing the persecution – Acts so grave, person is rendered deserving
Convention shall not apply, with serious reasons for considering that:
(a) committed a crime against peace, a war crime, or a crime against humanity
(b) committed a serious non-political crime outside the country of refuge
(c) has been guilty of acts contrary to the purposes and principles of the UN.
• Is the purpose of the Articles to avoid providing a safe haven to fugitives from justice, or to protect exclude serious criminals from Canadian territory?
• Applies to individuals trying to evade the consequences of their actions
• Jayasecara – maybe actually about protecting Canada too (security), doors never open to someone who might pose a security threat.
• International or domestic national concerns?
Requirements
• Proof?
o Les than BOP, but more than mere suspicion/notice (Onus on the Minister, who intervenes – though if minister fails to intervene, open to the board to consider exclusion, must put person on notice – doesn’t move the burden to disprove)
o Concern of low threshold - About where this fits in the legal regime – Immigration, not criminal (fundamental distinction) ~ level and importance of state control.
• Court Case
o Bias?
o Procedural fairness
▪ Onus on the applicant to put evidence to visa officer – who then assesses claim based on this.
▪ But - Must give applicant opportunity to respond to specific considerations
▪ Where expectations are created – opportunity to respond to/address this
o Reasonableness of findings based on his ability to support himself
Overlap of criminal/political purpose;
• Something is “Political” if there is:
(i) a political disturbance related to a struggle to modify or abolish either a government or a government policy; and
(ii) a rational nexus between the crime committed and the potential accomplishment of the political objective sought
• Balance seriousness of crime against repressiveness of regime (Gil; Malouf)
Exclusion clause 1F(a)
• Serious reasons for considering they have committed a crime against peace, a war crime, or a crime against humanity, as defined in international instruments in respect of such crimes
o “Limited and brutal purpose” or “personal and knowing participation or toleration”
o Acts coded as criminal in Canada since IRPA has been passed.
• Sivakumar – excluded for PKP, responsible for acts based on close assc.
• Complicity arising out of mere membership or association [difficulty]
• Moreno (Remerez)
o A kid forcibly recruited in Salvadorian army
o Met the definition of Refugee otherwise
o He himself wasn’t responsible for any atrocities, but stood by while torture and mutilation occurred with interrogation; didn’t say anything out of fear
o Leave of absence, and went back, participated in campaign against guerilla forces
o Mere fact of membership or association amount to complicity? No, but narrow circumstance where it is enough, irrespective of personal participation, where the premise of the organization is to engage in crimes against humanity – “Limited and brutal purpose”
o Or must have “personal and knowing participation or toleration” – Difference between innocent bystander and accomplice – forcible recruitment, and wasn’t reasonable for him to step him – mixed fact and law (mens rea)
o Ramerez – was personal knowing/toleration, 20 months as an active an knowing member of the military forces who frequently engaged in the horrific acts; integral, albeit reluctant part of the enterprise producing terrible moments of collectively deliberate inhumanity (P. 625); distinguish based on time, rank, passiveness of role ~ crime committed clearly by ranking officers
Exclusion Clause 1f(c)
• Serious reasons for considering that persons have been guilty of acts contrary to the purposes and principles of the United Nations
• Pushpanathan
o Drug trafficker – member of group trafficking heroin (Street value of 10 mil)
o During a time of UN reporting heavy against the evils of drug trafficking – SCC didn’t think this supported the purposes and principles of UN
o Idea of being deserving, v. nature of acts which make them undeserving
o Defines two kinds of acts contrary to purposes of UN
▪ Acts recognized explicitly as contrary to purposes and principles of the UN (eg. terrorism, hostage taking)
▪ Actions which deny humans dignity in any way, and the sustained or systemic denial of core human rights – set the boundaries of the convention refugee def’n
▪ When the tables turn on persecutors, who suddenly become the persecuted, cannot claim refugee status
▪ Purpose of (c) - Excludes those individuals responsible for serious sustained or systemic violations of fundamental human rights which amount to persecution in a non-war setting (counter-point to 1F - Focusing on criminals)
o Includes persons in a position of power, could be isolated violations, or complicity
o Drug trafficking though condemned – doesn’t strike at this core
o [73] Criminality is dealt with 1Fb generally meant to prevent entry of ordinary criminals to state of asylum.
Exclusion clause 1F(b)
• Serious reasons for considering they have committed a serious, non-political crime outside of country of refuge prior to admission as a refugee
• Jayasekara
Drug trafficker, 8 mo, probation and came to Canada
▪ Started as a case on deportation then -
▪ Moved to ‘did you complete your sentence? How is claim perceived where x completed the sentence for their crime?
▪ Then - Moved to 1fb purpose - to prevent person from being a fugitive from justice/avoid providing a safe haven for such/ or to protect/exclude serious criminals from Canadian territory?
← Purposes as complementary, but move towards the later, though treaty was signed for the former
• How does one determine whether a crime is “serious”
• UNHCR – International, not domestic standards: nature of the act, actual harm inflicted, procedure used to prosecute the crime, nature of penalty, crime under most jurisdictions?
o [37] Nature of prosecution and penalty, but not considered in isolation - more multi-faceted approach.. Chan
o [55] Gravity of offense in place (NY), facts underlying conviction, nature of substance and how much, Canadian perspective (10 years or more), bad conduct post-sentencing (refusal to report to probation officer, resulting in deportation)
• Serving a sentence doesn’t allow of to avoid application of 1f(b)
PERSON IN NEED OF PROTECTION, S. 97
• Risk to life or cruel/unusual treatment/punishment
S. 97. (1) A person in need of protection is a person in Canada whose removal to their country(ies) of nationality or, (of don’t have) their country of former habitual residence, would subject them personally:
• (a) to a danger, believed on substantial grounds to exist, of torture w/i the meaning of Art 1 of the Conv Against Torture (state persecution)
• (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
o (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
o (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
o (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
o (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
• Expansion of protection
• Higher legal standard of proof – BOP, not more than a mere possibility
• Only an objective element
• Subject to exclusion clauses – s.98
• File Tai-24763; P. 648 – Decision of the board
o Demonstrates how 97 fills some gaps in 96
o Refugee claims had to show a nexus to grounds for claims; bad person via the state that will harm me, didn’t nec. fall within 97
o Higher legal standard of proof - BOP; Objective fear
o + Stand alone objective evidence…
o Subject to the s. 98 exclusions (96 and 97)
Problems – p. 651-654
Class 19 – Mar 20
PRRA AND HUMANITARIAN ADMISSIONS
Under s. 34(2) of the IRPA, the Minister has discretion to set aside a determination of inadmissibility for security reasons under s. 34(1) where the applicant “satisfies the Minister that their presence in Canada would not be detrimental to the national interest”.
PRE-REMOVAL RISK ASSESSMENT
• May result in refugee protection or statutory stay of removal
• New to IRPA s. 112-115
• To apply - Must have an enforceable removal order or security certificate against you
o Notified when removable ready, to apply for a PRRA
o Subject for Federal Court to review certificate – on the eve of removal
o Exist because S. 7 Charter right engaged? Suresh – Maybe certain removals can’t take place
o Some people can become Refugees (since they were first assessed)
▪ Right to judicial review- gives time to go through appeal
▪ + 30 days to effect their own removal
▪ circumstances can change during this time
▪ fundamentally unfair not to do a pre-removal risk assessment?
• Certain persons cannot apply
o Safe 3rd Country can’t apply
o Extradition proceedings (past a certain point) – must have authority to proceed
o 112(2)
PRRA Application and Stay
• Reg 160 applies upon Notification by CBSA
o Trigger to apply for PRRA
• 15 day and 30 day time limits (for application and submissions)
o Application received after 15 days will not result in a stay
• Legislative stay of removal (under) s. 232 while 1st application is pending (IAD may cancel or change conditions at any time)
o Exceptions ss. 165, 166
o X Individuals who are making a second PRRA
o X Applications made at the port of entry
Requirements for PRRA
• s. 113, Consideration for an application shall be as follows:
• Require new evidence if been before RPD already (s. 113(a); Raza)
o PRRA not used to challenge IRB decision, so require +
o Practice is to present all old evidence plus new stuff
o Never know what will be considered
o As a mater of practice (Van) – assessment looks at everything because don’t want to send back with risk (v. Toronto, actively rejects old evidence)
• Account for if (CIC Guidelines):
o the harm feared is not severe, is not generalized, is not objectively supported, or is the law of general application, lawfully imposed fitting international standards
o there is effective State protection;
o there is a reasonable Internal Flight Alternative (safe area within the applicant’s country of origin) or multiple nationalities.
• Raza
o Applicant would put in corroborative evidence (from sister), statutory declarations
o Post-date RPD hearing, but all the events describing, were knows at the RPD hearing
o 1) IS the evidence credible?
o 2) Relevant? Capable of proving or disproving a fact relevant
o 3) New –
▪ Prove the current state of affairs in the country of removal (right now)
▪ OR evidence towards the circumstance which occurred or arose after the hearing
▪ OR was unknown to the claimant at the time of the hearing
▪ (doesn’t help) Contradiction… including a …
o 4) Materiality
o 5) Statutory requirement [113(a)]
• Not always a right to a hearing (s. 113(b), reg. 167) – on Paper
o Legislation states explicitly, so no procedural claims
o Minister is, on the basis of prescribed factors of the opinion that a hearing should be held
▪ *Get hearing if something might come up during the hearing which could help you
▪ Whether evidence raises a serious question of applicant’s credibility ~ related to risk grounds
▪ Whether evidence is central to the decision
▪ Evidence, if accepted, would justify to..
o Hearing is just an interview with the applicant
o Cerilo – Burdens – Risk Claims, no right to a hearing if the central issue is one of sufficiency of evidence, over credibility
o Ferguson 2008 – About credibility (lawyer’s submissions not sufficient, rather than the applicant themselves)
• Assessment generally based on ss. 96, 97 and 98 (96, more than a mere possibility)
o Consider 96, 97 and exclusions in 98
o Reach a decision of Yay or nay
• Exceptions in certain cases…
o Get a limited PRRA in cases of serious inadmissibility (eg. serious criminality) or because they’ve previously been excluded by the Board under Article 1F (s. 113d), or
o Balancing PRRA
o consideration shall be on the basis of factors set out in s. 97 (not protected from mere prosecution, as in 96)
▪ S. 97 Torture, life, treatment or ___ punishment
▪ BOP burden (Danger to a public in Canada? Against sanction risk to person)
▪ Nature of protection offered is much more limited (to what SCC help in Suresh)
o Lye - badly wanted by Chinese authorities for smuggling
▪ May be tortured, jailed, executed – wrongfully prosecuted
▪ Excluded on the basis of serious non-corporal crime
▪ PRRA on s.97, balance – nature and severity of the acts they committed, irrespective of the danger.. (risk to security)
o Difficulties
▪ Can you ever accept assurances from state?
▪ Nature of the criminal process – must meet certain standards (absence of political involvement, unbiased adjudicator)?… and if not, does this breach standard of fair trial?
• May be vacated if misrepresentation (s. 114)
• Vagra v. MCI
o H&C factors in the PRRA? Assess risk to Canadian born children and impact in the foreign national’s PRRA?
o No obligation where removing at least one parent
o PRRA is to assess risk to the FN being removed, not the child
o H&C is different- Undue, undeserved and disproportionate hardship – 2 processes should not be confused or duplicated
o Best interest of the child isn’t explicit is the section – Important, but not all pervasive – compartmentalized - can still make a s. 25 claim
HUMANITARIAN ADMISSIONS, S. 25
• Objectives of these provisions
• * exists as a pressure valve
o Can’t have hard and fast rules because (at one point will be constitutional, so want discretionary power)
• Discretionary decision-making
o May be nice to have discretionary power with the exec, rather than the judiciary or somewhere else (delegated)
• Nature of Reviews
• Relationship with refugee protection claims/PRRA
Key legislative Provisions
• S. 12 ‘humanitarian tradition’
• S. 25 Centre-piece
o Obligated to consider every agency request made on request within Canada -- OR ministerial initiative
▪ Overseas – won’t process request on list of jobs for foreign workers program
o H&C includes best interest of the child or public policy (blanket exemption – eg. spousal policy exemption)
• Other places in IRPA:
o Sections relate to the IRB’s jurisdiction - immigration appeal division (not refugee)
o Stay of removal regulatory provisions – where s. 25 exemption has been granted, person must still be found admissible (while PR being determined, stay)
o Residency rule exemption (2 yrs/5 physically present) – H&C exemption
Baker v. MCI (()
• Reminders:
o International law
▪ Officer must consider substantive IN law, but need not go through each treaty..
o CIC Policy Guidelines (IP-5) – Processing manual guidelines
▪ Undue, undeserved or disproportionate hardship
▪ In some cases, leaving to apply may result in hardship which is ‘extra’
▪ Personal connections, business, emotional – how establish is this person to Canada – and what at the connections to where the application should be made?
o Best interests of the child
▪ Critical here!
Hawthorne v. MCI (judicial review)
• Substantive points of H&C – applies Baker
• Court is not to reweigh factors to take into account in an H&C decision -- Evidence which the officer finds missing
• “Alert, alive and sensitive”, as opposed to dismissive of the child’s best interest
o Perspective of the child not the parent
o Best interest of child important to be given substantial weight, but not determinative
• Query: Is reasoning to be done from perspective of “best interests” (Almost always will be better to remain with parent - standard of living, child’s familiarity is always here) – or “hardship”?
o Compare to custody best interest
o Look at evidence as to where child would go
o Unusual and underserved or disproportionate hardship
o Not a magic formula though
Legault v. MCI
• D Had repeatedly flouted immigration laws, and had criminality
• Balancing these factors of the Claimant against the best interest of the child was found to be okay.
• Best interests of the child not paramount (again)
• Weighing of factors left to officer
• Factors may include policy considerations re: non-compliance with immigration law
Class 20 - Mar 25 09
TOPIC FOUR – KEEPING PEOPLE OUT
INADMISSABILITY TO CANADA AND REMOVAL ORDERS
• Is Admissibility it about entry or expulsion?
• Is it necessary?
o Medical/Crim – What larger public purpose does this serve? Costs?
• Sovereignty / coercive state power / international obligation
o Imposing rules – We do it just because we can
o The way rules are implemented engages the extreme end of power (long arm) – intuitional control, security
• Role of CIC v. CBSA
o Gatekeeper at visa office with denial – other enforcement
• Video: Lennikov
Inadmissibility
• Used to deny entry
o Engaged upon examination any time anyone makes an application under the act, s. 15 and 18
o Can only get PR or TR status if:
▪ you apply (can then be investigated)
▪ Hold a Visa; and
▪ Not inadmissible (changes burden of proof to crown?)
o Grounds of inadmissibility: s. 33-43; Reg. 14-24
o S.24(1) allows for granting of a temporary permit to those otherwise considered inadmissible
o A person may make an application to be permitted on H&C grounds(
• And to remove status of FN and PRs
o Engaged upon investigation
o CBSA has an investigation branch – particular to investigate PR (Subject to criminal proceedings?)
• Refugee – without a visa, will be held inadmissible, however any removal order is conditional, and only comes into force after the person is found ineligible
Loss of status, s. 44(1) (2) and 45** (subject to a lot of caselaw)
• (1) Immigration Officer can prepare a report setting out relevant facts (para) – if of the opinion that they’re inadmissible (bone fide, good faith – but not objective nec.)
• (2) Report is then referred to the Minister for Public Safety and immigration (delegates), who form an opinion on whether report is well founded
o Procedural fairness engaged + opportunity to respond
• Orders
o 1) Depending on nature of inadmissibility – may be able to make removal order themselves [FN, or s.28 direct removal order)
▪ Where delegate can’t make order themselves, ID can make removal order
o OR 2) Refers to Immigration Division – Independent tribunal for decision to determine admissibility
• Potential right of appeal to Immigration Appeal Division
• At any level, once end of line is reached, always have right of judicial review
Immigration Division Appeals on Loss of Status
• S.44 Report + Minister’s referral ( ID
o Only looking at - admissible, or inadmissible?
o ID might have (limited) H&C… maybe;
o IRPA, s. 34-37 grounds defined
o IRPA, s. 33 interpretation
• Removal orders
o s.46 PR lose status when removal order against them comes info force
o Enforced and enforceable (PRRA)
• Right of appeal?
o IAD has Special Humanitarian & Compassionate jurisdiction! (Ribic factors)
o PRs and Protected Persons can appeal ID order under s. 63 to IAD of IRB
▪ FN, x Protected person – can’t appeal.
▪ S. 64 Exception: No appeal right IF - founded to be inadmissible on grounds of security, violating human or international rights, or organized criminality, serious criminality.
← serious criminality (with respect to a crime that was punished in Canada by a term of imprisonment of at least 2 years); Criminal charge, settle for 2 years – unaware of immigration consequences. IA can’t hear appeal.
← + certain misrep – No appeal (of FN sponsor X given PR visa) if inadmissibility on ground of misrep, unless the FN in Q is the sponsor’s spouse, common-law partner or child.
o Appeal board can allow or dismiss the appeal, or based on H&C issue a stay
▪ Court should give a broad interpretation to H&C including consequences upon return
S. 33 – Facts to interpret
• s. 33 In interpreting inadmissibility include - acts and omissions + (threshold) reasonable grounds to believe have occurred are occurring or may occur
o Included members of organization, subsequent to their membership became involved in organized criminality – point in time = serious implication
• Reasonable grounds to believe – Mugesara
o Evidentiary standard
o More than mere suspicion, but less than the BOP
o Same as serious reasons (last class) - maybe similar to refugee too.
o SCC requires this standard reflect the level of extraordinary condemnation of crimes against humanity – while s. 33 adopts this standard as default
Security, s. 34
• both permanent residents and foreign nationals
o espionage or subversion against democratic govt.
o subversion by force of any govt.
o terrorism
o danger to the security of Canada
o violence that would/might endanger lives/safety in Canada
o member of an organization linked to a, b, c
o IRB or Canadian Court finding conclusive re: terrorism (IRP Reg. s.14)
• Reg 14 – 16 – determinations by IRB, ICC or Canadian court of involvment in terroism, war crime or crimes against humanity shall be conclusive
• s.34(2) Ministerial relief – if satisfied person’s presence in Canada would not be detrimental to Canada’s interest
o Reviewable decisions (minister can’t say, I won’t grant descretion because excluded, circular – must properly address legal iddues)
o Soe – Criteria
• Eg. Galloway MP, financial support to org, couldn’t give speech in To/
Questions
What is ‘Terrorism’ (Suresh)
• Never committed an act of terrorism – ‘Liberation’ fights
• Was a key fundraiser, Charter issue as a refugee (
• Word is so unclear, it’s mere use is not enough, over-broad (to engage on charter rights) – academic backing
• SCC x ill-defined over vague
• Potentially ambiguous and open to interpretation at the grey fringes – but LTE had engaged in physical acts of violence against citizens (no Q)
o but what about financing another org?
• *Def’n not so vague as to be utterly unworkable with litigation (decided on after 9/11)
• Refer to international conventions with defn’s – for the suppression of financing of terr
• Any [other] 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, when the 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
What Involvement is sufficient
• Not parliament’s intention to capture those who innocently contribute to or become members.. captured where minister is “satisfied their admission would not be detrimental to the national interest”
• But mere membership (broad) is worded
• Reconcile this by Granting exceptions to claimants who didn’t know – ministerial relief
o Problem with executive discretion – is the discretionary nature
o Can be unfair, and informed of political assumptions, rather than informed by facts
Who is a ‘member’ (Poshteh)
• Joined as teen – MEK – solely disseminating propaganda (important act in the org); called himself a member (but denied formal membership, largely because of age) and shared goals of org
o Significant?
• How should the issue of age be dealt with – didn’t matter.
o Not workable to say no minor will ever be inadmissible on security grounds
o Exception for criminal inadmiss. ~ so telling of not for security grounds
o Don’t ignore age – but go to the substance [47] Relevant considerations – minor has requisite knowledge or mental capacity to understand the nature and consq of his actions
o Was not ignorant, became involved voluntarily, and against the advice of adults
o …would be hard to find for young children
o + Ministerial relief can follow.
• If not this - From the perspective of how integrated he was with the organization (!)
• Denied appeal – no definition of member, not precise or exhaustive definition – but to be given an unrestricted an broad definition (like terrorism – here, membership across the board)
Critique (S. Aiken article)
• Broad discretion on terrorism in IRPA leaves opportunity for xenophobic prejudices/sterotypes to inform admin and judic. decision making..
• Shortcomings – Enormous delay for outcome of security determination
o Inadmissible on security can render ineligible PR – big deal for those in Canada, in limbo
o ‘But don’t worry we won’t deport you’... what’s the point?
• Guilt by association
o Innocent involvement – q of how does relief plays out
o Crimes against humanity – require commission of the crime
o Terrorism – don’t need personal and knowing involvement
o Broad definition of membership – threshold – little involvement and no formal membership may well be caught
o Seem to run contrary to broad human rights readings
▪ Should be broad relief, small involvement
• Might be counter-productive
o Discourages individuals from coming to Canada and settling, joining organizations to get support ~
o movements in community support involved in financing? Another q.
• SIS – investigative role, provide to IRPA people.
Class 21 – Mar 27
Inadmissibility cont.
Human Rights Violators (IRPA, s.35)
Permanent Residents and Foreign Nationals
• (a) acts outside Canada that would contravene Crimes Against Humanity and War Crimes Act
• (b) prescribed senior official of governments engaged in terrorism, human rights violations, genocide, war crimes
• (c) a person (non PR) who is restricted because of internationally agreed sanctions
• S.35(2) Ministerial relief available re: b and c (not detrimental to national interest)
Mugesera
• Speech
• Appeals to IED (pre-IRPA; wouldn’t be an appeal here now); JR and then Federal appeal – not crime again humanity?
• Distinction between crimes against humanity v. ordinary crimes
o Based on criminal code v. IN Law
o Rises to CAH with 4 elements
▪ An enumerated proscribed act was committed (involves showing accused committed the criminal act and had the requisite guilty state of mind for the underlying act)
← Counseling for an act is sufficient - Act must have occurred
← Includes Persecution - the gross or blatant denial of a fundamental right on discriminatory grounds – guilty mental state is discriminatory intent to deny the right
← Speech that incites hatred and persecution may be included (is here)
▪ Acting done as part of a widespread or systematic attack
▪ Action is directly against any civilian population or any identifiable person
▪ Person knew of the acts and know or took the risk that their act compromised a part of that attack
o X for refugee claim – balances risk assessment
Criminality – Serious, other, organized crime
• s. 36(3)- after prescribed period an individual may be deemed rehabilitated
• S. 17 - 18.1 – details of whose covered
• Doesn’t address considerations of foreign pardons (()
Serious Criminality, s.36(1), 3(3)
Foreign Nationals and Permanent Residents
• SC - Not the same as those who don’t get an appeal… other def’n
• 1) Conviction in Canada (max 10 yrs or more OR actual 6 mos in prison (not Contraventions Act or YOA (YCJA))
• 2) Conviction elsewhere = max 10 years or more here
o IRPA officer determines equivalent (Or for refugee – board)
• 3) acts elsewhere = offences of max of 10 yrs +, on BOP
• Regs are key here (include rehabilitation*)
o S.18 – Gap between ability to get a pardon here, or elsewhere
Other Criminality (General) s.36(2), 36(3)
FN Only (– lower possible threshold)
• One indictable offence conviction in Canada or any two conviction from different events (hybrid rule)
• Parallel for outside Canada convictions
• Acts which are an offence where committed and are an indictable offence in Canada
• Transborder offence (listed Acts)
Some equivalent criminality issues
Li
• Convicted in Hong Kong under two convention of bribery
• 4 years imprisonment – high profile
• Is he inadmissible under general criminality? 36(2)
• Offence requires equivalence, compare essential elements – unsure about inclusion of defenses here:
o What if there’s different burden’s of proof under two judicial systems
o Doesn’t matter - What matters is the substance of the act under this provision (or key elements)
o Must determine essential elements of each action corresponding – fundamental test is would the acts committed abroad and punished there be punishable here. ~ comparing offenses, not possible convictions, but does account for elements and defences of crime (if criteria are manifesting to commission)
▪ So committed? Punished here. Defenses matter - but technical doesn’t overcome substantive (what actually happened!)
o BYRD - Lower burden? Charter equivalent process? No – doesn’t speak to the substantive point;
o threshold – are there serious grounds for belief? Of these substantive facts having occurred.
Saini
• Pardon – hijacking, no questions, convictions in Pakistan
• Sentenced to death, then released and got a pardon
• Vergon – UK pardon recognized and not found to be criminally inadmissible
• Need more than a doc saying ‘pardon’ – gotta assess this
• p/695? To summarize Jurisprudence required all 3 elements
o Legal system sufficiently similar as a whole to Canada
▪ Though Pakistan was a CW system, but no suff.
o Content and effect similar to Canadian law
▪ Not sure how you get the pardon there – no evidence to suggest of a process if Pak – just buy? Does it actually has a consq of deleting the conviction – or can it still be re-instated? (Must accept it would delete the offence)
o Must be no valid reason not to recognize the effect of foreign law
▪ Yes – because such a grave offense
• None of these were satisfied – Difficult test to apply (no certainty)
Organized criminality, s. 37
PR and FN
• Deemed to be organized crime:
• a) Being a member of an organization believed on reasonable grounds to be engaged… + can be inside or outside Canada
o Members, defined broadly (significant associated auto incl.)
o Trafficked or smuggled …
• b) Engaging in activities such as people smuggling, trafficking in persons, or money laundering…all in the context of transnational crime
• S.37(2) Exception:
o provision for ministerial relief (not detrimental to national interest)
o and persons who were trafficked or smuggled
o exception indicates how broad this really is
Chiau
• TV Star, p. 704 analysis, under K with TVB (Triat controlled) – Organized criminality
o Not actually engaged in criminal activity – association (= member)
• What about confidential information?
o Information given from a state in confidence – unfair for visa officer to rely on this
o Full Baker analysis here
o Not unfair - C knew of the allegations and substance of deciding factors against him
o There’s significant public interest in this case – in not disclosing the information
• Compare with Charkowi – need to disclose information (at least to some advocate)
o Different setting application for visa v. security concerns
• S.86-87 – Dealing with confidential information in ID, IAD and Federal Court
o Special advocate process
o But still norm – for officers under this situation
• (Reasonable grounds bottom 306 x true anymore)
• Sittam Palam (?)
Excessive demand – Health conditions, s. 38
• FN only – Don’t deport PR on this basis, X protected persons
• Applies to all – but practically, TR visa’s don’t have to undergo medical exam (only PR applicants); s.15 and r.30 FN may have to.
• 3 categories, “likelihood” of:
o Danger to public health, danger to public safety (commutable diseases)
o Reasonably expected to cause excessive demand on health or social services (court has overturned visa decision on ‘possibility, Hiramen’
o Exceptions to demand, s. 38(2): spouse, CL, children of the family class, convention refugees, protected persons (accompanying family members are not exempted); see also Reg., 24
• S.1 Defined: ‘excessive demand’ ‘health services’ and ‘social services’
o Excessive ‘demand’
▪ greater than average costs per capita in next five years (unless evidence that costs likely to be greater later); or
▪ add to waiting lists in such a way that morbidity and mortality in Canada would be increased due to denial or delay
• Medical – What larger public purpose does this serve? (Undue burden on services – is this counter productive though?)
o May discriminate against more expensive conditions not caught by testing, stigmatizes immigrants and non-citizens (HIV/AIDS ~ larger proportion in Africa), costs of testing may outweigh gains, done in other countries and may use lower standards
Questions
• Is ‘excessive demand’ about cost or about availability? (Deol) ~ both
• What if the applicant is willing to forego or pay for the services? (Deol, Hilewitz)
o Only possible for social service, because a right exists to medical; private service coesxist with public
• What if the services are only available in certain provinces? (Hilewitz)
Deol/Leg Medical services
• PR sought to sponsor father, mother, sister and 2 brothers
• All Refused because father was inadmissible (1=all)
• Knee surgery required
• Right of appeal – unsuccessful; JR dismissed
• Excessive demands - How much it costs or waiting lists? Both
• What if applicant will afford services( or forgo them
o Insurance etc.
o Couldn’t waive his right of access in the future
o Entitled to service as a PR
Hilewitz Social Services
• Investor from SA – Son who was intellectually disabled
• Started a school in SA for developmental disabilities
• Had never made use of public funds for his son – enrolled in a private school in On; job lined up etc.
o Visa officer turned down because of the excessive demand possibly created
o Court lined to ability to pay - BOP on whether he would actually make and excessive demand – probably he would go bankrupt – so small
o Individualized assessment
• Medical services – can’t obtain privately (though may change) – whereas social services very different from province to province
• Hil. Based on health conditions and development disabilities – moved from categorical – to individualized assessment. Not enough to say you could get the services to fee – must assess actual and willingness to pay
• Gov: for a long time held financial consideration/exemptions only applied to investor cases based on the net balance of contribution – Court said no - all (dissent J, Deschamps held inappropriate to mere considerations of these classes - only apples to business or economic applicants ~ should be left to minister descretion otherwise).
• What if only availability in certain provinces – can’t restrict movement in provinces – Look at evidence in the individual case to see what the likelihood is.
• p. 685
Financial Reasons, s. 39
Only to FN, x PP
• Drain on welfare state
• Persons who are/will be unable or unwilling to support themselves or dependents AND have no other adequate arrangements, other than social assistance
• Protected persons are exempt (IRP Reg., s.21)
• Generally, sponsor is required to meet an income standard (reg 133(l)(j))– but is some cases where the sponsoree is a spouse, CL or Conj partner or a dependent child, the sponsor is exempt (reg.133(3) ~ but may still be inadmissible here.
Misrepresentation, s. 40
PR and FN
• All relate to abuse of the immigration system
• More in last few years (unsure why)
o direct or indirect misrepresentation or witholding material facts relating to a relevant matter that induces or could induce an IRPA error; or
o having been sponsored by such a person; or
▪ Minister must be satisfied inadmissibility here is justified
o vacation of refugee protection; or
o citizenship revocation
• Must be a relevant matter
o Could lead to a line of inquiry, which could lead to a material findings with respect to the application in finding
• Inadmissibility Lasts for 2 years (is an inadmissibility ever forever…? This goes away on it’s own terms; maybe because this could be forever)
• Exemption for protected persons and refugee protection claimants (IRP Reg., s.22)
Non-compliance with IRPA (S.41)
• FN - any act or omission which contravenes IRPA, directly or indirectly
• PR - Failure to comply with s. 27 conditions or s.28 residency obligations
Family Members, s.42
FN only, x PP
• If accompanying family member is inadmissible - inadmissible
o But can’t bring one person if the other is inadmissible
o Fills a gap – To Avoid loophole of one person coming, and then sponsoring someone who is inadmissible
• Also inadmissible if non-accompanying family member is inadmissible, in prescribed circumstances (Not included in application)
o IRP Reg., s.23: PR applicants only AND close family
Class 22 - April 01, 2009
Human Trafficking presentation [John Ferguson], ss. 117-121
[As relates to Refugee Protection/Immg Enforcement]
• Human Trafficking – many international commitments
• Characterization of innocent victims as counter-productive to enforcement and protection (not ‘pure’, but still exploited)
• Prosecution of perpetrators
o Lacking – even though victims increasingly brought forward
o 3 offenses created in 05, difficult to bring claim under: human trafficking, material benefit from the commission of trafficking and withholding or destroying documents to facilitating trafficking
o convictions under this offence have involved domestic victims
o Relevant: Kidnapping, Forcible confinement, Extortion, Intimidation, Assault, Causing death or bodily harm by criminal negligence, Homicide, Sexual assault, Uttering threats, Conspiracy, s. 465) + Prostitution-related offences, Child abduction (non-parental), Child pornography, Organized crime provisions.
• **R. v. Ng, 2008 BCCA 535, the BCCA decided to increase Ng’s sentence by 1 yr, to total of 27 mnths.
o While acquitted on human trafficking charges under IRPA on evidentiary grounds, his sentence for prostitution-related convictions under the Code was found to be inadequate. [took sexual exploitation more seriously here]
o Justice: Deterrence & denunciation are significant b/ of the moral turpitude involved - The sentences imposed for the prostitution offences do not adequately speak to these factors and are unfit.
Perrin – policy article
• Recent legal and policy measures designed to protect victims, prosecute traffickers and prevent this serious crime and human rights violation.
• Victim Protection - May 06, CIC introduced measures to protect victims by:
o providing them with temporary residence permits + guidelines specifically addressed to the problem,
o access to interim federal healthcare.
o increased the initial period for the TRs to 180 days + ability to obtain a work permit.
o But - require a range of support services, incl. healthcare and counseling, housing, income or employment support, legal aid and translation services (provincial responsibility). Only half have established relevant agencies
• 2006 - 2008 - at least 31 FN reported as potential human trafficking victims [fraction of existing - to threats, violence or coercion; + domestic].
o Romania, the Philippines, Moldova and China were the top four source
▪ Border official ought to proactively prevent the movement of suspected victims from these countries to Canada. Migration integrity officers should be more active in these jurisdictions to identify fraudulent documents, bogus offers of employment and the other indicators of suspected trafficking cases.
o Only a handful of TR apps had legal council; 12 granted, 7 not, 1 cancelled + 1 did not appear, 10 pending or obtained other immigration status.
• Immigration relief introduced as a ministerial policy measure to provide necessary flexibility - such measures should be legislated in IRPA and related regulations once “lessons learned” have been incorporated (for permanency)
• Uphold promise to newcomers!
V.O.G. (Re), [2006] R.P.D.D. No. 7 (QL)
C. Dauvergne Ch 5 “Trafficking in Hegemony”
“Remedies: sovereignty, law, and refuge”
• Crackdown of legal migration (sov) expands trafficking market – treated as perpetrators and sent home
• TR’s specifically linked to trafficking prosecutions
• Protections reinforces global structure of migration laws/probs
o focus on persecution,
o human rights remedy needed (remedy of status hinges on prosecution over harm)
o reinforces choice for trafficking as a migration path (cmplex for victims), states maintain control by linking this to persecution/assisting state [where trafficking represents a loss of this control]
o PR would be an unacceptable surrender of sovereignty – but would end a the power dynamic of fear for those trafficking, more prosecution, stop recurring trafficking; more willing to participate (but many more? Horrific, not voluntary); PR as a remedy in the way TR is not
o *Refugee Law (remedy, not solution)
▪ Meet nexus in many ways
▪ Problem: Forward looking (persecution upon return? Recurring trafficking; organized crime threats to them or family); state protection – Generally summed to protect (need not be perfect), but couldn’t here; individuals (not similarly situated persons, must be unique)
▪ Nothing to reduce market problem – no right to cross border; retains this prob of border control as a feature of the market
o Multifaceted approach required..
“Smuggling, undrawing lines and concluding”
• Victims v. none; but victim identity is silenced and obscure
• guilt and criminality often hard to separate clear line makes grey harder to distinguish – must think more about actual characteristics of victimization (hard for law - likey clear lines) ~ leads to degrees, of agency and consent; inclusion and exclusion
• But the two parallel (hence incentives of PR as problematic)
• Clear lines help - Us v. them, again, pinned to economic logic – victimization (rights bearing indv.) or illegality.
Class 23 – April 03 2009
Removal and Detention
• What, when, why?
• Gibney and Hansen - Much more important from a theoretical perspective – operational reality in much less
• Liberal principles: Deportation is the most problematic of capacity, forcible expulsion required the full power of a state against an individual.. only capital punishment surpasses.. removing individuals from communities in which they remain, severing all their ties.. even if concede as needed, no denying the hardship brought on
• Given it’s unpopularity and the constraints, why do states both at all?
• States need to further them myth that it can actually remove all criminal non-citizens or legal migrants; no states will collapse the principle of illegal and legals – sovereignty and control of the broader.
Removal Orders s.48 49,
• Initiated by IRPA s. 44 process (foreign national/ PR/ AND Inadmissible
• 3 kinds: reg 223- 226 (difference of authorization to return to Canada)
o Departure [30 days, or deport] – exclusion [2 yr] – deportation [written authorization] – details in reg 229
o Reg 227 – removal order against a FN is also a removal order against family members
o No complete outright prohibition from return – like H&C balancing of factors by officer
o s. 52 Need authorization to return to Canada (Sahakyan)
• s. 49 – When a removal order comes into force
• In force and enforceable
o Comes into force when all rights of appeal (X JR) have been exhausted
o Refugee exception – not enforceable till after JR
o When in force, may or may not be enforceable
▪ Only if it’s not otherwise stayed
▪ Minister for public safety required to excerise as soon as it’s actually enforceable
• Stay of removal s. 48
o Reg 232 – while PRRA is pending
o Federal court order – but court’s can issue an indefinite stay (reg 231 ~ doesn’t apply where no credible basis to a refugee claim, or serious criminality)
o S. 50 – 5 cases – sentences to term of imprisonment reg 230 generalized risk to entire population from armed conflict, environmental disaster or other.
o Reg. 233 where minister is of the opinion that H&C consideration exists, where applied for (effective until PR determination)
• Pancharatnam (Herring) P.736
o Diabetic, poor eyesight, daughter in law administers insulin
o Refugee, JR, PRRA – all rejected – H&C pending
o Return to Sri Lanka – valid removal order
o Officer refused request to stay removal order pending H&C – but can only do this pending some underlying JR application of her case
o Test for stay:
▪ Serious issue of JR application (less than a prima facie case, but more than just to get stay)
▪ *irreparable harm (not just resettlement itself - Life will be at risk (same harm all along)
▪ Balance of convenience
← Strong public interest in enforcing deportation
o Didn’t get stay
Formal “Detention”, s. 54-61, Reg. ss.224-250
• Power to arrested and detained (jail) FNs and PRs under IRPA, even for quite a long time – 2 yrs filing various immigration applications – but never convicted of anything
• This is different and separate from any criminal detention
o On/Qc – have immigration specific detention centers
o Med/max security, no time to do a proper assessment because assumed it will be short term
o 464 in immigration detention – thousands without status – detention is the exception rather than the rule (maybe because bad conditions)
o 72% in On, 20% Qc, 5% BC Yukon
• Security Certificate detention provisions s.82-86 (bill C-3 amendment)
o UN review, concern over detainees’ right to a fair hearing, judicial review, to challenge evidence used against them and not to incriminate themselves, (
• Detention is a last resort re: minor children
Process, s. 55
• Arrest can take place under IRPA – officer
o Without a warrant if reasons to be inadmissible and either
▪ i) Danger to the public
▪ ii) Or unlikely to appear from a process
o FN (not protected) – also if officer is not satisfied of Identity on entry
o PRs and FNs - detained if necessary to complete an examination, OR reasons grounds to believe they’re inadmissible for security reasons or rights violations
• Security of people in Canada, IN obligation to create a safe haven for fugitives from justice (IN/home state)
• Immigration division must be notified upon detention – subject to regular review
• S.55 – can release with or w/o conditions
Detention review, s. 57-58
• Mandatory review - after 48 hours, then 7 days, then every 30 days
• ID can release, or continue detention
o ID shall release unless (taking into account prescribed factors):
(i) danger to public;
(ii) unlikely to appear;
(iii) Minister is reasonably inquiring into serious inadmissibility;
(iv) OR - Identity is an issue
• Can impose new conditions
o Impose bond, agree to live in a certain place, report etc. (Charkoui)
• Change of decision
o Bond comes up, response to security concerns, new evidence etc.
• ID does not review security certificate cases (Federal Court does)
Prescribed factors
• re: Flight risk, R 245
o fugitive from foreign jurisdiction re: a crime under Canadian law
o previous voluntary compliance with immigration related matters
o previous avoidance of immigration examination or escape from custody
o involvement with smuggling or trafficking that would likely to lead the person not to appear
o strong ties to a community in Canada
• re: Danger to the public, R. 246
o Minister’s danger opinion under other sections of IRPA
o association with a criminal organization
o engagement in people smuggling or trafficking
o conviction in Canada of violent offence or serious drug offence
o conviction, or pending charges, outside Canada for violent offence or serious drug offence
• re: Identity, R 247
o cooperation in providing relevant identity details (not applicable to children)
o if a refugee claimant, possibility of obtaining identity documents without alerting foreign government
o destruction of documents or use of fraudulent documents to mislead CIC/CBSA (and circumstances of this)
o provision of contradictory information in an immigration application
o existence of documents which contradict the person’s claims re: identity
• re: Every case, R. 248
o When is detention a charter violation? Contrary to PFJ
o S.248 codified Sahin factors
o reason for detention
o total time in detention, including likely future time
o unexplained delays or lack of CIC/CBSA diligence
o alternatives to detention
• R.249 special factors re: children
Charkaoui 2007 SCC - security certificate + detention review; s. 33, 77-85
• Principles with when detention is a charter violation - same irrespective of security certificate context v. other (immigration review flawed)
• Contrary to Charter
o reliance on confidential information to which person concerned does not have adequate opportunity to respond violates s.7 Charter
o Right to prompt review – detention of FN w/o timely review violates s. 9 and 10 Charter
o Standards for detention must be rationally connected to purpose of detention
o X s.15 citizens couldn’t be detained arbitrarily (HL – some success, SC – very prime is different treatment of FN and residents)
o 87 IRPA's procedures for determining whether a certificate is reasonable and for detention review cannot be justified as minimal impairments of the individual's right to a judicial determination on the facts and the law and right to know and meet the case. Other ex’s demonstrate gov’t can do more to protect the individual while keeping critical info confidential - clear more must be done to meet the requirements of a free and democratic society.
• S.52 – invalid – a year for amendments – made
o Released to house arrest on extremely strict conditions (p. 772) ~ worse
o Zhang (Casebook, p. 779) Release conditions
• Sahin factors reinforced and explained re: extended detention
o lengthy detention with no end in sight (fixed end year) – difficult to contemplate when removal could be effected + risk of torture – process before removal could take place
> MCI v. Li 2009 FCA
o *Extended periods of detention are not necessarily contrary to the Charter
o so long as they are “accompanied by a process that provides regular opportunities” for “judicial review of the continued need for and justice” of the detention
o Li: Not contrary where person is simply exercising all their rights to remain in Canada (Crown making every effort to expedite the process)
Almrei, Harkat and Jaballah
o involved heavy restrictions on movement, electronic surveillance, large bail
o In contrast, rather than exclude certain people from communications as in Charkaoui, put a blanket ban on communication with any individuals other than those designated
o The conditions also provided for interception of all written and telephone communications of all members of the household. In Jaballah the court went so far as to specify procedure in the event that, while on an outing, Mr. Jaballah’s supervisor needs to use a public restroom (he is to stay as close as reasonably possible).
Deghani 1993 SCC
• When is an immigration “interview” really “detention” under section 10(b) of the Charter of Rights?
o Right to council for detention, not interview
• Interview – removal order issued, should have had council?
• See also: Kainth v. Canada (M.C.I.), 2009 FC 100
** Exam -- incorporate factual and/or legal issue(s) raised in the JR. (mini-notebook)
• Facts: Iranian musician, didn’t meet definition or have ability to earn income in intended location
o Definition of self employed person
o Economic – can include cultural activities
• Behaviour – Reasonable apprehension of bias (test)
o Temper, cut off and told to stop speaking, rolled eyes, appeared angry officer notes where important testimony was not included, didn’t account for international income
o Decision maker consciously or unconsciously - Appearance alone, can amount to this (behaviour)
o Refusal to allow response, or consider relevant evidence:
▪ Obligation to consider all relevant information
▪ Give chance to respond to concerns against him on application
▪ Not required to show this would have resulted in a different determination against him
▪ Refusal to accept after the fact courier
o Undue focus:
▪ On income in Canada – main source in international
▪ Ability to bring culture – but not ripe for consideration
▪ Students – small part of income, undue focus here
▪ Above low-income cut-off!
o Relied on own perception of demand and cultural view
▪ Would be teaching Iranian students
▪ Compares to piano, inappropriate
▪ Large north shore Iranian community
o Speculation argument
▪ What he could and couldn’t’ do while living here
▪ 640,000 assets
▪ huge focus on housing costs – could rent, addresses officer concerns = moot
▪ Visa officer had no evidence for statements ~ could live in surrey
• Officer categorically denies conduct
o Extensive interview notes
o No indication of conflict
▪ high threshold for bias
▪ no impression, insinuation – evidence cogent
▪ Doesn’t meet burden
o Procedural fairness
▪ Did look at docs presented, doesn’t recall exact details, but would have recorded
▪ If he’d asked for more time, she would have given
▪ > Need to ask?
o Economic viability was relevant to consideration
▪ Ability to be self-employed in Canada as a professional musician
▪ Teacher, produce and sell CD’s ~ inexperience
▪ No demonstration of earned income, bankcard doesn’t show
▪ Realistic business plan?
▪ Never had own experience with CD compilation
▪ Contacts and doing over internet was not sufficient for visa officer
o Vancouver living – was questioning hiss expectations (though wasn’t a big part)
o Nothing concrete – was his onus, and he failed to meet burden of proof
• Held: Officer erred in failing to take into account a letter sent after the interview (breach duty of fairness) – prompted by officer doubts of his ability to settle in Canada, sent in timely fashion
o Interpreter did not adequately translate his experience and expertise with specific instruments and technical art
o Reiterates this information in the letter, and approximates his net worth and estimated 100,000 annual income to settle himself and his family very well in Canada
o Nothing in notes to indicate officer reviewed this letter (specifically responded to other info, but not this letter)
o Must have has ability to respond to concerns – be taken in account, specifically regarding income.
o + demand for piano was not relevant; and concern over number of concerts without consideration of international performances
o No where does officer acknowledge international stature as musician, along with two precious ~ broader concern that officer failed to appreciate the nature of the application, and did not approach with an open mind
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