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Law Notes Immigration and Refugee Law Notes

Inadmissibility Notes

Updated Inadmissibility Notes

Immigration and Refugee Law Notes

Immigration and Refugee Law

Approximately 76 pages

This course was taken with Professors Lorne Waldman and Jacqueline Swaisland. Both practice exclusively in the area of immigration and refugee law and are known for high-level litigation at the Supreme Court of Canada. Given extensive changes in the Immigration and Refugee Protection Act in Canada, please note that some legislative provisions and regulations may have changed. It is advised that you cross-reference provision and regulation numbers for accuracy....

The following is a more accessible plain text extract of the PDF sample above, taken from our Immigration and Refugee Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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 Danger; engaging in terrorism, espionage etc.
s. 35 Crimes against humanity
s. 36 Criminality
s. 37 Organized crime
s. 38 Medical
s. 39 Funds (Burden on social services)
s. 40 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)

    • 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

    • 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

2. Overseas

  • 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

    • 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
  • 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

    • 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 Relevance
S. 63(1) (APPEALS) 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.
S. 63(4) PR can appeal to IAD against decision if outside CDA re: residency requirements
s. 63(3) 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
s. 64(1) and (2) No right of appeal if found inadmissible on grounds of serious criminality, national security, etc.
s. 72(1) 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...

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