Published On: Jan 24,2017
In immigration law terms, there are three (3) categories of individuals: (a) Canadian Citizens; (b) Permanent Residents; and (c) Foreign Nationals. The Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA’”), applies only to Permanent Residents, foreign nationals and other individuals and business that are seeking legal entry into Canada. This section will only deal with the term inadmissibility. This is a term of art within the sphere of Canadian Immigration Law. There are various policy objectives outlined in the IRPA and it’s animating sections. Those sections embrace the concerns of protecting the dominion of Canada and Canadian society from persons who (may) present danger to society or who might otherwise impose a heavy burden on social services. Policy goals have been implemented in Canada to reach those objectives. Within the scope of defence law the characterization and label of inadmissibility is critical for those seeking entry into Canada. This is because individuals (persons) who seek to become permanent residents of Canada are not permitted to enter Canada as permanent residents without special permission is granted by an Immigration Officer who issues a temporary resident permit pursuant to Section 24 of the IRPA. Moreover, a finding of inadmissibility made in connection with a person residing within Canada will have a removal order issued against them unless an application is made to persuade an immigration officer to not issue a section 44 IPRA report.
As stated by Canada Citizenship and Immigration, a permanent resident of Canada, a refugee, or a foreign national with a permanent resident visa who has been ordered removed from Canada, may appeal to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (IRB). A person may not appeal if he or she has been found to be inadmissible to Canada because of (a) serious criminal offence punished in Canada by a term of imprisonment of at least six (6) months; (b) involvement in organized crime; (c) security grounds; or (d) violations of human or international rights. As stated above, the IPRA craves our specific appeal rights for permanent residents of Canada and (depending on the nature of the inadmissibility) for sponsors. Such individuals, arguably, have a ‘right of appeal’ to the Immigration Appeal Division (the “IAD”) of the Immigration and Refugee Protection Board. Moreover, decisions concerning overseas sponsorships and decisions taking away permanent resident status (i.e. failure of comply with Residency obligations under section 28 of the IPRA) can be appealed to the IAD. Sponsorships refused on grounds of inadmissibility, eligibility or bona fides of a relationship can all be appealed to the IAD. Similarly, permanent residents who are issued removal orders on the grounds of criminality, misrepresentation and failure to meet the residency requirements can also appeal to the IAD.
The person must appeal within thirty (30) days of receiving the removal order from the Immigration Division (ID) or the Canada Border Services Agency (CBSA). In most cases, a member (decision-maker) will hear the appeal according to the IRB tribunal process. The appeal process involves two parties: the appellant and Minister’s counsel who represents the CBSA. It is also usually public, so media or members of the public may attend or report on the proceedings. At this hearing, it is advisable to retain a defence lawyer who is familiar with the various relevant factors that may be marshalled to your avail. The statutory provision for the determination of discretionary relief in removalorder appeals under IRPA is different than the provisions in the former Immigration Act. Whereas in the former legislation, depending on the person’s status, the test was either “all the circumstances of the case” or “compassionate or humanitarian considerations”, in IRPA, those two tests have been merged. The wording in paragraph 67(1)(c), subsection 68(1) and subsection 69(2) of IRPA tasks the IAD member with determining whether “sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. In addition, the concept of “the best interests of a child directly affected by a decision” has been incorporated into the legislation.
These factors are outlined in the following cases: Ribic, Marida v. M.E.I. (IAB 84-9623), D. Davey, Benedetti, Petryshyn, August 20, 1985, Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, and Al Sagban v. Canada (Minister of Citizenship and Immigration), 2002 SCC 4. In the Ribic case, the Immigration Appeal Board set out factors to be consideredin the exercise of its discretionary discretion. These factors were as follows: (a) the seriousness of the offence or offences leading to the removal order; (b) the possibility of rehabilitation or, alternatively, the circumstances surrounding the failure to meet the conditions of admission; (c) the length of time spent, and the degree to which the appellant is established in, Canada; (d) the family in Canada and the dislocation to the family that removal would cause; (e) the family and community support available to the appellant; and (f) the degree of hardship that would be caused to the appellant by the appellant’s return to his or her country of nationality.
These factors are not exhaustive and the way they are applied and the weight theyare given may vary according to the particular circumstances of the case. The SCC inKhosa cited with approval the IAD’s acknowledgement of the non-exhaustive nature ofthe factors and that the weight to be attributed to the factors will vary from case to case.
Instead of deciding to allow or dismiss the appeal, in many cases, the IAD may decide to stay the removal order. This means that, temporarily, it will not be carried out. The IAD will reconsider the appeal later, at a time set by the member hearing the appeal. If there is a stay, the person must also meet certain conditions, such as reporting regularly to a CBSA office. The IAD may, at any time, change the conditions or cancel the stay. If the IAD cancels the stay, it will then decide to either allow or dismiss the appeal.
There are various possible outcomes that maybe achieved by a defence lawyer. If the appeal is allowed, the removal order is set aside and the person concerned may remain in Canada. If the appeal is dismissed, the removal order will be upheld and the CBSA could remove the person from Canada. Certain steps will be taken by CBSA to effect your immediate removal pursuant to Section 50 of the IRPA; and there are a number of corresponding steps that a person can take to challenge the basis of the removal in the Federal Court of Canada through an application for Leave and Judicial Removal (the “JR Application”) along with a motion for a stay of removal until your JR Application is finally decided. Either the appellant or Minister’s counsel may apply to the Federal Court of Canada for leave, or permission, for judicial review of any IRB decision. The Federal Court of Canada will either dismiss the application or return the case to the IAD for re-hearing. This discussed in greater detail below.
For the type of decisions stated above, it is critical to file an application for leave and judicial review against the negative decision within the time frame prescribed by the IRPA and the Rules of the Federal Court. The deadlines are strictly enforced by the Federal Court. It is imperative that you consult with an immigration defence lawyer immediately. By way of general legal information, the deadline to file a Federal Court JR Application is fifteen (15) days of having been notified of a decision that was made within Canada. For decisions made by Canadian Immigration authorities outside of Canada, the deadline to file the Federal Court JR Application is sixty (60) days from the notification of the decision to refuse your application, such as temporary resident permits. Filing the application does not necessarily by operation of law prevent the Canada Border Service Agency (“CBSA”) from proceeding with the indexed removal. In the case of a challenge levied against a negative refugee decision, general no steps will be taken by the CBSA. However, in most other cases, a Motion for a Stay of Removal must be filed and successful argued before the Federal Court, on an emergency basis, to legally stop CBSA from proceeding with removal proceedings. These are time sensitive and heavily contested applications.
The RPD is the board that hears and decides on refugee protection claims. The RPD applies two sets of criteria in assessing claims. The first is the definition from the UN Convention Relating to the Status of Refugees. Under this set of criteria, a claimant is recognized asa refugee if they can establish persecution in their home country on grounds of race, religion, nationality, membership in a particular social group or political opinion. The second set of criteria applies a definition taken largely from the UN Convention Against Torture (CAT). Under this definition a person is a protected person (a status similar to being recognized as a Convention Refugee), if in being returned to their home country she would face a risk of torture, death or of cruel and unusual treatment or punishment. Ronald Poultonformerly worked with the United Nations High Commissioner for Refugees (UNHCR) in Hong Kong as a refugee appeal officer and has represented many refugee claimants before the RPD in Canada.
A Pre-removal risk assessment application is another type of application based on risk on return to country of origin. It is usually commenced by CBSA and only when the person is “removal ready” (that is when there are no legal impediments to removal from Canada). As such it is often considered the last step before removal from Canada. Unlike a refugee hearing, a PRRA is usually determined without an oral hearing or interview but on the basis of written documentation. Under the Immigration and Refugee Protection Act PRRA officers are to assess only “new” evidence since the refugee hearing. PRRA officers had been interpreting this to mean that only evidence of a new political or human rights situation in the country of origin could be considered, that is, evidence establishing a new set of facts than those that were before the RPD. Mr. Poultonsuccessfully challenged this position before the Federal Court of Appeal in Raza v. M.C.I.. In that decision the Court ordered that PRRA officers must expand their understanding of “new” evidence to include evidence that postdates the refugee decision but which ca relate to the same grounds that were unsuccessfully argued before the RPD, particularly in situation where the RPD did not believe the refugee claimant.
A non citizen may be detained for a number of reasons under the Immigration and Refugee Protection Act . These reasons include where an immigration officer has reason to believe that the person is inadmissible to Canada and is a danger to the public in Canada; or where an immigration officer has reason to believe that a person is unlikely to appear for an examination, hearing or removal from Canada. Once detained there are several mechanisms to secure release. A negotiated settlement can be reached with CBSA usually involving the payment of a deposit and/or the posting of a guarantee for compliance with release conditions. If an agreement cannot be reached the detainee will be brought before the Immigration Division of the Immigration and Refugee Board for a detention review hearing. This hearing is to be held within 48 hours of being detained and allows the detainee to contest the detention order and offer conditions of release including the posting of a deposit or guarantee. This cannot be done by the detainee him or herself but only by a bondsperson found suitable by the Immigration Division. In recognition of his expertise in this area of immigration law in Canada, Ronald Poultonwas invited by the Danish Refugee Council as a guest speaker to attend its conference on the issue of the detention of asylum seekers. His paper he co-authored with Barbara Jackman on detention in Canada presented at the conference was published by MartinusNijhoff Publishers. Permanent Residency There are a number of applications made under the Immigration and Refugee Act which can lead to a grant of permanent residency. Several of these applications will be reviewed below.
Permanent residents and Canadian citizens can sponsor some of their family members for permanent residency in Canada. If the sponsor is a permanent resident, then he or she must be resident in Canada in order to be an eligible sponsor. However, a Canadian citizen living abroad may sponsor a family member to Canada provided that they intend on returning to Canada to resume residency before or at the time the sponsorship is approved. Sponsorship is limited to the following family members:
A sponsor who applies to sponsor a spouse or child, does not have to meet any financial criteria in order to be eligible. However, if the sponsor’s income is low and an immigration officer decides that the person being sponsored may resort to welfare payments once in Canada, the person may be refused on the grounds of inadmissibility. For all other sponsorships, the sponsor must have income which meets the low income cut-off figure, an amount dependent on family size and periodically changed by Canada Immigration. It should be noted that, for those with relatives in Alberta or Saskatchewan, the possibility of such sponsorships does also exist under Provincial Nominee Programs.
An application for permanent residence in Canada will be granted under this category provided the applicant meets or exceeds selection criteria requiring an accumulation of 67 points over a number of areas including age, education work experience, language ability and other factors. A successful applicant in this category worker must have, at a minimum, 1 year of work experience in and qualifications for one of only 38 jobs recognized by Canada Immigration. Without this experience, an applicant will not qualify for permanent residency, regardless of points accumulated. In order to benefit from an expanded list of possible jobs recognized by Canada Immigration as qualifying an applicant for permanent residency, an applicant must have a current offer of arranged employment or been living in Canada for at least one year as a temporary foreign worker under a work permit or an international student.
The Provincial Nominee Program allows each Province to nominate a prospective immigrant for permanent residency in Canada. If accepted by a province, a certificate is issued which allows for expedited processing by Canada Immigration. Although programs vary from Province to Province, most share the common feature of employer nominated candidates. A prospective employee nominated by an employer for a job recognized by the province under the PNP program may qualify. Other PNP programs include those requiring significant capital investment or the establishment and management of a business.
Applicant’s who intend on establishing and managing businesses in Canada or who invest in designated provincial or territorial funds, or who have the ability to be self employed, may qualify for permanent residency in Canada. The Entrepreneur class is designed for those wishing to establish a business. To be eligible, an applicant must have past managerial experience, have a net worth of at least CAD $300,000.00, employ at least one Canadian or permanent resident and actively participate as a manger of the business.
To qualify as an investor, an applicant must invest CAD $400,000.00 in a provincial or territorial fund, have a net worth of at least CAD $800,000.00, past managerial experience and a percentage of equity in a business prior to the application.
A self-employed applicant must have the intention and ability to be self-employed in Canada and to make significant contributions to cultural activities or athletics, or must have the intention to purchase and manage a farm.
Applicants who may be other wise inadmissible to Canada or who do not qualify under one of the above headings for permanent residency, may be granted landing on the grounds of compelling humanitarian and compassionate factors. In order to succeed, an applicant in this category should demonstrate that if forced to leave Canada or if denied entry into Canada, they or others immediately affected by their status, such a children, would suffer undue hardship. Since the Supreme Court of Canada decision in 1999 called Baker v. MCI, the best interests of any children affected by the decision is of utmost importance.
If an Application for Leave and Judicial Review is commenced, it is possible to ask the Court to stop removal in cases where there is no automatic stay. This is called a motion for a Stay of Removal. The Court applies a three part test to determine if a stay is warranted in the circumstances of that particular case.
First, the judge must be convinced that the case raises a serious or arguable issue. This means that at a preliminary reading of the case, the applicant must establish that a serious argument can be made that legal or factual errors have been made in the decision under review. Second, the applicant must establish irreparable harm if deported. Finally, the balance of convenience must favor the applicant. If all three grounds are accepted by the judge, a stay of removal will be granted. The stay remains in force until the Application for Leave and for Judicial Review is finally determined.
Stay decisions are rarely reported and are therefore not usually available online unless they are considered leading cases or precedent setting cases. Mr. Poulton has been counsel on a number of such cases. For a review of these cases click here.
Individuals may be allowed into Canada on temporary status, for limited periods of time. Visitors, workers and students, are the most common temporary residents. At the completion of their original reason for coming to Canada, whether employment contract, school or holiday, their status expires and they are expected to leave.
Work permits may be issued through several mechanisms, including the issuance of Labour Market Opinions (LMOs) or under NAFTA.
An additional tool for overcoming inadmissibility is an application for a Temporary Resident Permit (TRP). A TRP may be issued for compelling humanitarian grounds or for other reasons such as Canadian economic interests. A TRP allows the recipient admission into Canada and, depending on the reason for the inadmissibility, a grant of permanent residency under the Permit Holders Class after a period of 3 or 5 years.
Generally speaking, permanent residents of Canada qualify for Canadian citizenship if they have resided in Canada in 3 of the 4 years preceding their citizenship application. Residency is defined as either being the actual number of days physically spent in Canada, or the period of time in which an applicant has centralized his or her mode of living. Factors such as location of the principal residence, employment and family may be considered.