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PART V: INADMISSIBILITY Reasons for inadmissibility: public health, criminality, drain on social benefits, fraud, etc. THREE MAIN FACTORS: costs, integrity of the system, danger (all classes of inadmissibility fall under these) s. 34 s. 35 s. 36 s. 37 s. 38 s. 39 s. 40
Danger; engaging in terrorism, espionage etc. Crimes against humanity Criminality Organized crime Medical Funds (Burden on social services) Integrity of system
STATUTORY INTERPRETATION WITH RESPECT TO INADMISSIBILITY "Words of an act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act and the interpretation of Parliament" - (Bell Express Vu v Rex (2002) 2 SCR 559 at para 26) "Immigration policy should always be interpreted in positive terms. The purpose of the statute is to permit immigration, not prevent it" - (Hajariwala v Canada (1988) 23 FTR 24) Interpreting Factors: dictionary, ordinary meaning, presumption of consistency in legislation, objects (ex. Hansard, manuals online, etc.), case law, IRPA objectives to permit CDA to pursue maximum social cultural and economic benefits of immigration, b) to support the development of a strong and prosperous CDN economy in which benefits of immigration are shared across all regions of CDA, etc.) s. 33: "the facts that constitute inadmissibility under s 34-7 include facts arising from omissions and unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur"- threshold is RG to believe X (w/exception of PRs allegedly committing offences outside CDA)
* for ss 34-37, there is no temporal requirement and one may be found inadmissible not only as a result of their acts but through omissions and a failure to act in some circumstances INADMISSIBILITY LOCATIONS
1. At POE
* Officer screens for documentation and decide whether you should proceed to a second interview
* Officer writes s. 44 report with name, status, and specific sections stating grounds of inadmissibility
* Decision is actually made by the Immigration Division (IRB) or Minister's delegate (always referred to Minister's delegate first who then determines whether he or she has jurisdiction; if not it goes to IRB) o Minister's delegate (MD): informal proceeding; generally there is a conviction (cases are more obvious and less complex)
? Decides whether it should go to IRB (s. 44(2)). Officer has no discretion with order o IRB: more complicated, formal cases requiring evidence; allegations of a conviction
Most of the time a foreign national will have a hearing at the IRB unless they didn't meet the residency requirement, in which case it goes to MD) - better due process here PR visa or PR card holders can appeal to IAD here The burden of proof is with the Minister at the ID hearing; the burden of proof for someone coming into Canada is to show that they are admissible
* Decided by immigration officer at CDN consulate (administrative role) - interview may be scheduled if there are questions of fact and credibility; officer may provide limited disclosure depending on nature of information o there are participatory rights in terms of knowing what the case is about and being able to respond
* Each file is inserted into a database which may be accessible via ATIP
* File could be referred to CSIS for consideration - could conduct interview
* Most people do not get an appeal especially if criminality is at stake - only those that have been sponsored get right to judicial review
3. Inland determination
* Could become subject to an investigation
* S. 44 report issued by officer and referred to the MD (s. 44(2)); could be referred to ID thereafter
* PR visa or PR card holders can appeal to IAD here PROCEDURAL NOTES WITH APPEALS OF INADMISSIBILITY o Immigration division also has Charter division (could provide a remedy) but not MD
* NOTE: Suresh 2002 says decisions should be exercised consistently with Charter where deportation is at stake and torture is in question
* FC could consider case from MD on Charter application
* If not sponsored and outside CDA, but prospective PR or temp resident, can appeal to FC (Charter not applicable). Court reviews errors re: principles of fairness, unduly fettering, perverse findings of fact
* SC under s. 77 can be appealed to FCA if judge sees serious question of general importance involved o S.112-114 permit application for PRAA where someone's life would be at risk or they would be subject to torture/cruel and unusual punishment if returned (could result in stay of removal order - stay can be cancelled by MCI, but must provide notice under s. 114(2)) Provisions IRPA S. 63(1) (APPEALS)
S. 63(4) s. 63(3)
s. 64(1) and (2)
Relevance Family class sponsorship PR can be appealed to IAD by sponsor (if visa refused). IAD holds de novo hearing to inquire into errors of law or fact or H&C grounds. PR can appeal to IAD against decision if outside CDA re: residency requirements Where person has PR visa or is a protected person, there is a right of appeal (in most cases) to IAD if officer issues removal order No right of appeal if found inadmissible on grounds of serious criminality, national
security, etc. Person can seek leave for FC judicial review with respect to any matter - a decision, determination or order made, a measure taken or a question raised by filing leave application.
TYPE 1: SECURITY (S. 34) BP = Reasonable grounds
34. (1) A permanent resident or a foreign national is inadmissible on security grounds for: engaging in espionage, subversion, terrorism, danger to security of Canada, acts of violence that would or might endanger lives of persons in CDA, member of an organization that there are RG to believe engages, has engaged or will engage in acts espionage, subversion or terrorism. Espionage: engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada. A democratic institution is a structured group of individuals established in accordance with democratic principles, preset goals and objectives engaged in lawful activities in Canada, activities of a political, religious, social or economic nature. (Qu v Canada 2002 FCA made this wide - student group found here)
Peer v Canada 2010 FC 752 (ON USE OF INTL LAW TO DETERMINE CONTEXT OF IRPA) F: applicant citizen of Pakistan and previously worked for Pakistani Corps of Military Intelligence (sponsored by CDN wife). Deemed inadmissible and sent procedural fairness letter - denied PR after he tried to provide reasons as to why he shouldn't be inadmissible on grounds of security (during interview it is alleged that he wasn't being truthful about the information he gathered). Applicant denies espionage. I: Is a person inadmissible if their acts of espionage are legal in country, there is no violation of international law and no hostile intent?
D: Yes; no; appeal dismissed Ratio: Espionage does not require an illicit outcome as a goal. It must be directed at a democratic government and can be within the boundaries of one's own country. Mere intelligence gathering without hostile intent and activities violating international law can suffice for espionage. Reasons: The post interview brief from CAIPS database and the notes of the officer should have been submitted to the court through affidavits - the evidence cannot be considered by the courts - does not constitute reviewable error because it is not determinative of espionage. There is no basis for conclusion on espionage in accordance with s. 34(1). Applicant's motive or location when spying is irrelevant to determination of espionage. Doesn't matter that CSIS does it in CDA. NOTE: FCA dismissed this appeal (C-43 now requires hostile intent) Subversion: Can be one of two types 1) of a democratic institution in which there must be clandestine or deceptive elements and an element of undermining from within (Al Yamani v
Canada 2000 3 FC 433) or 2) by force of any government (Oremade v Canada 2005 FCJ No 1330) (violent means - must be intended to subvert government)
Terrorism: only defined in the CC, not IRPA. "An 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" (Suresh v Canada 2002 1 SCR 3). Key aspect is intimidation or terrorization. Decision of CDN court under CC conclusive as a finding by board or tribunal under s 1FA (Reg 14) Danger to security/engaging in violent acts. Usually not really brought up. Mixed with criminality or health grounds. Ormeade v Canada 2005 FC 1077 (INADMISSIBILITY ON GROUNDS OF SECURITY) F: Nigerian applicant applied for judicial review on inadmissibility finding due to allegation of subversion by force of a government (S. 34(1)(b)). Plotters betrayed, and majority arrested after they were at applicants house (who escaped). He argued no evidence of intended use of force. ID found in favour, IAD overturned. I: is force a necessary element in establishing subversion?
D: appeal allowed Ratio: Force must be an element, although not exclusive, of subversion allegations under inadmissibility. The use of force must be more than an accident, and intended to overthrow government. Reasons: use of force critical in the interpretation of s. 34(1)(b). By force included coercion and compulsion by violent means, coercion or compulsion by threats to use violent means and reasonably perceived potential for use of coercion by violent means. Sub Category: Membership (s. 34(1)(f)) - RG to believe
Captures subversion, espionage and terrorism The category is very broad (Suresh); court says because there is a 42.1(2) exemption from the Minister there is no unconstitutionality. The term membership is to be given a broad and unrestricted interpretation. Doesn't matter when person formally joined organization (can be a member even if informal participant) Must be a bona fide belief in serious possibility based on credible evidence Look to 1) degree of commitment 2) length of time involved (decided on case by case basis) Even if activities terminated, membership still counts; providing material support for organization can be sufficient Could be inadmissible even if at the time, organization was not engaged in acts of terrorism
Who is a member of an organization?
1) person involved in political branch of an organization that is against violence of terrorist branch
2) person involved with organization before it engaged in terrorism (El Werfalli case) 3) person that distributed flyers for event 4) person who organization does not recognize as a member and there is no formal card Duress Test (could be argued): 1) urgent situation of clear and imminent peril 2) compliance w/law demonstrably impossible 3) harm inflicted is less than harm sought to be avoided (R v Perka 1984 SCC). Burden of proof lies on party relying on defense of duress. Could ask Minister for 42.1(1) exemption. Requires an application. Very few are accepted, it takes 5-10 yrs, can JR decision, there is broad discretion, and does not prevent deportation. Agraira v Canada 2013 SCC 36 (MINISTERIAL DEFERENCE) F: applicant appealing denial of relief from determination of inadmissibility based on security grounds (Libyan national) due to alleged membership with National Salvation Front (Terrorist organization according to CIC). FCA deemed MCI decision reasonable. I: Did the Minister err in equating national interest in s. 34(2) with public safety?
D: no; appeal dismissed Ratio: The MCI's discretion to deport an individual based on national interest under s. 34(2) is entitled to deference if executed reasonably, intelligibly, and justifiably. Reasons: Deferential standard of reasonableness applied to minister's decision (s. 34(2) discretionary). Burden was on applicant to show that continued presence in CDA would not be detrimental to national interest. There was no failure to discharge procedural fairness to the applicant. The scope of national interest considered related to public safety but also encompassed considerations in guidelines. Suresh v Canada 2002 1 SCR 3 (INADMISSIBILITY ON GROUNDS OF SECURITY) F: deportation of applicant based on alleged terrorist associations. Applicant arguing that "danger to security of Canada" and "terrorism" are vague and should be struck. Allegations are that he assisted the LTTE in Sri Lanka fund raise and support activities contributing to civil war efforts of Tamils -argues this violates his freedom of expression rights. I: Are the impugned provisions constitutionally vague?
D: no (near deportation hearing called) Ratio: Exclusion of persons for terrorist acts is not unconstitutional whether it applies to persons who committed an act before entry or after they entered Canada because the conduct in question is violent activity (Constitution does not protect violence). Reasons: Definition of terrorism not unconstitutionally vague. The provision permits innocent persons to establish that their residence would not be detrimental to Canada.
TYPE II: HUMAN OR INTERNATIONAL RIGHTS VIOLATIONS (S. 35(1)) Standard = Reasonable grounds
PR OR FN inadmissible committing act outside CDA constituting offence in ss 4-7 of Crimes Against Humanity and War Crimes Act
Engagement in terrorism systematic or gross human rights violations or genocide, a war crime or a crime against humanity within meaning of 6(3) to (5) of CAHWCA, entry or stay into CDA restricted due to a decision of states with which Canada is a member has agreed to deem inadmissible (s. 35(1)(c)) Exception in 42.1(1) can apply Elements of CAH: enumerated act (AR/MR), committed as part of widespread or systemic attack, directed against any civilian population or identifiable group, person committing new risk of attack Genocide: a crime against humanity or a war crime are considered o G: act or omission committed w/intent to destroy identifiable persons in whole or part, constitutes int'l law standards for genocide, does not matter if against law of nation at time committed War crime: act or omission during armed conflict at time and in place of commission constitutes a war crime according to CIL or conventional intl law applicable to armed conflicts (whether or not contravention of law in force at time in place of commission) Complicity: requires significant and knowing contribution to group crime's or criminal purpose.
Mugesera v Canada 2005 SCC 40 (INADMISSIBILITY ON CRIMES AGAINST HUMANITY) F: Speech delivered by respondent led to arrest warrant after which he fled Rwanda. Landed immigrant status approved 1993 for family. Speech alleged to incite murder, hatred genocide and crimes against humanity within scope of s. 27 of Act [at the time - criminal inadmissibility for PRs]. IAD upheld deportation order. MCI alleges misrep given response "no" to whether crimes against humanity were committed, but dropped at SCC (no longer seeks deportation) I: Did the FCA err in overturning decision of IAD that found respondent inadmissible?
Does counseling a murder that is not committed meet criminal act requirement for murder as CAH and whether speech inciting hatred meets initial criminal act requirement for persecution as a crime against humanity. D: appeal allowed; deportation order upheld (IAD decision restored) Ratio: CAH in CC requires 1) accused committed an underlying enumerated act and 2) that it contravened IL. On first point, physical and mental element must be made out. On second point, counseling, murder or persecution by hate speech required. Reasons: Reasonable grounds to believe that someone committed CAH requires more than mere suspicion but less than BOP (objective basis of belief based on compelling info) - question of fact. There is no evidence that speech incited murders directly (insufficient to satisfy criminal act requirement). Speech met persecution given anti Tutsi tone. Attack need only be widespread or systematic for CC scope - satisfied here because victimizing behaviour by government sufficient to establish attack that was systematic. There is no doubt he had the mental state required by the Code. Ezokola v Canada 2013 SCC 40 F: applicant began career with DRC with various Ministries. Represented government in UN capacities and served as charge d'affaires. Resigned and claimed it would be viewed as act of treason - he was allegedly harassed, intimidated and threatened for having suspected links to
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