INTRODUCTION.........................................................................................................................................................5

POLICY CONCERNS.....................................................................................................................................................5OBJECTIVES OF IRPA AND THEIR APPLICATION........................................................................................................6THE CURRENT SITUATION..........................................................................................................................................6APPROACHES TO IMMIGRATION LAW.........................................................................................................................7

HISTORICAL PERSPECTIVE ON IMMIGRATION............................................................................................9

CHINESE IMMIGRATION TO CANADA..........................................................................................................................9Union Collary v. Bryden (1899)..........................................................................................................................10Quong-Wing v. The King (1914) (SCC)..............................................................................................................10Mack v. AG Canada (2002) (OCA......................................................................................................................10Benner Case........................................................................................................................................................11

SIKH (EAST INDIAN) IMMIGRATION TO CANADA.....................................................................................................11Re Munshi Singh (1914) (BCCA)........................................................................................................................11

EVOLUTION OF FEDERAL IMMIGRATION LEGISLATION............................................................................................12

DECISIONS MADE OUTSIDE OF CANADA.......................................................................................................13

DETERMINATION OF RIGHT OF ENTRY.....................................................................................................................14Distinction between a Permit and a Visa............................................................................................................14

GRANT OF VISA (PRV AND TRV)............................................................................................................................14Obligation to Tell the Truth................................................................................................................................15

APPLICATION FOR A PERMANENT RESIDENT VISA...................................................................................................15Grant of Status for Those Holding a Permanent Resident Visa..........................................................................15

APPLICATION FOR TEMPORARY RESIDENT VISA......................................................................................................16Grant of status for Those Holding a Temporary Resident Visa..........................................................................16

APPLICATION FOR WORK PERMIT OR STUDY PERMIT.............................................................................................16Live-In Caregivers...............................................................................................................................................16Other Applications..............................................................................................................................................16

ELIGIBILITY TO MAKE A REFUGEE CLAIM...............................................................................................................16Direct Back to the US..........................................................................................................................................17

PREPARATION OF A REPORT OF INADMISSIBILITY (S. 44)........................................................................................17Arrest and Detention...........................................................................................................................................17Decisions of International Committees...............................................................................................................17

DECISIONS MADE WITHIN CANADA................................................................................................................18

APPLICATION FOR FAMILY SPONSORSHIP................................................................................................................18STRATEGIC OCCUPATIONS AND BUSINESS IMMIGRANTS - PROVINCIAL NOMINEE CERTIFICATE............................18ARREST, DETENTION AND S. 44 REPORT..................................................................................................................18

Admissibility Hearing..........................................................................................................................................18Detention Review.................................................................................................................................................18Issuance of a Removal Order..............................................................................................................................18Security Certificate..............................................................................................................................................19

APPEAL JURISDICTION OF IAD.................................................................................................................................19REFUGEE DETERMINATION.......................................................................................................................................19CHAIRPERSON’S GUIDELINES...................................................................................................................................19DELAYING AND PREVENTING DECISIONS.................................................................................................................20

Vacation of Decision...........................................................................................................................................20Suspension because of Extradition Proceeding..................................................................................................20Pre-Removal Risk Assessment.............................................................................................................................20Stays of Removal.................................................................................................................................................20Enforcement of Removal Orders.........................................................................................................................20

ACCESS FOR FEDERAL COURT..................................................................................................................................21

CITIZENSHIP............................................................................................................................................................21

BIRTH IN CANADA....................................................................................................................................................21BIRTH OUTSIDE OF CANADA....................................................................................................................................21

Benner v. Canada (1997) (SCC).........................................................................................................................22Adoption Amendments – December 2007...........................................................................................................22

GRANTS OF CITIZENSHIP..........................................................................................................................................23Special Grant of Citizenship – s. 5(4).................................................................................................................23

RESIDENCY REQUIREMENT.......................................................................................................................................23Chen v. Canada (MoC&I) (2003) (FTD)............................................................................................................24Canada (MoC&I) v. Xia (2002) (FCT)...............................................................................................................24

CITIZENSHIP PROCEDURES........................................................................................................................................25Security Concerns...............................................................................................................................................25Revocation of Citizenship....................................................................................................................................26War Crimes Program..........................................................................................................................................26Oberlander Case.................................................................................................................................................26Renunciation of Citizenship................................................................................................................................27Getting Citizenship Back.....................................................................................................................................27Measures to Deal with Past Revocation.............................................................................................................27Minors.................................................................................................................................................................28Langner v. Canada (MoE&I) 1995 FCA............................................................................................................28

CONSTITUTIONAL RIGHTS OF CITIZENS....................................................................................................................28Passports.............................................................................................................................................................28

IMMIGRATION, REFUGEE PROTECTION AND THE CONSTITUTION....................................................29

CONSTITUTION ACT, 1867........................................................................................................................................29CANADA QUEBEC ACCORD......................................................................................................................................29THE CHARTER...........................................................................................................................................................29EQUALITY RIGHTS – S. 15........................................................................................................................................30

Lavoie v. Canada (2002) (SCC)..........................................................................................................................30De Guzman v. Canada (2005) (FCA)..................................................................................................................32

SECTION 7 RIGHTS....................................................................................................................................................33Nguyen v. Canada (2001) (FCA)........................................................................................................................34Singh v. Minister of Employment and Immigration (1985) (SCC)......................................................................34Canada (Minister of Employment and Immigration) v. Chiarelli (1992) (SCC)................................................35Suresh v. Canada (Minister of Citizenship and Immigration) (2002) (SCC)......................................................36Procedural Rights in Suresh...............................................................................................................................38Charkaoui v. Canada (Minister of Citizenship and Immigration) (2007) (SCC)...............................................38

1951 CONVENTION ON THE STATUS OF REFUGEES....................................................................................40

PREAMBLE................................................................................................................................................................40Article 31: Refugees unlawfully in the country of refuge....................................................................................41Article 33: Prohibition of expulsion or return ("refoulement")..........................................................................41

DEFINITION OF A REFUGEE.......................................................................................................................................41PRELIMINARIES.........................................................................................................................................................42

Screening Form...................................................................................................................................................42Credibility – nearly always a factor is a refugee claim!.....................................................................................42Canada (Attorney General) v. Ward (1993) (SCC)............................................................................................43

ELEMENTS OF THE REFUGEE CLAIM........................................................................................................................43Fear.....................................................................................................................................................................44Well-founded.......................................................................................................................................................44

STATE PROTECTION..................................................................................................................................................45How much effort must be made by the claimant?...............................................................................................46Hinzman v. Canada (2005) (IRB).......................................................................................................................46

INTERNAL FLIGHT ALTERNATIVE.............................................................................................................................47CHANGE OF CIRCUMSTANCES OR SUR PLACE CLAIMS............................................................................................47

PERSECUTION..........................................................................................................................................................48

WHAT COUNTS AS PERSECUTION?............................................................................................................................48HOW DOES PERSECUTION DIFFER FROM PROSECUTION?...........................................................................................48

Conscientious objection to conscription or desertion.........................................................................................49Zolfagharkhani v. Canada (Minister of Employment and Immigration) (F.C.A.) (1993)..................................49Other Examples of Prosecution Amounting to Persecution................................................................................50

NEXUS......................................................................................................................................................................51Islam and Shah (1999) (England).......................................................................................................................51

GROUNDS OF PERSECUTION.....................................................................................................................................52Defining a Particular Social Group....................................................................................................................53Chan v. Canada (Minister of Employment and Immigration) (1995) (SCC)......................................................53Victims of Crime..................................................................................................................................................54Discrete Behaviour as a Solution........................................................................................................................54Political Opinion.................................................................................................................................................54

EXCLUSION CLAUSES...............................................................................................................................................55Article 1E: Having the rights of nationality in another country.........................................................................55Article 1F(a): Serious reasons for considering...................................................................................................55Article 1F(b): Committed a serious non-political crime outside the country of refuge......................................56Article 1F(c): Guilty of acts contrary to the purposes and principles of the United Nations.............................56Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998) (SCC).........................................56IRPA s. 108: Change of circumstances and compelling reasons........................................................................56IRPA s. 109: vacation of refugee protection.......................................................................................................57IRPA s. 107: No credible basis...........................................................................................................................57

FAMILY SPONSORSHIP.........................................................................................................................................57

PROCESSING..............................................................................................................................................................57Family members who may be sponsored:...........................................................................................................58Access to IAD......................................................................................................................................................58

DEFINITION OF SPOUSE.............................................................................................................................................59Excluded from the definition of spouse:..............................................................................................................59

COMMON LAW PARTNERS AND CONJUGAL PARTNER.............................................................................................60Polygamous Unions.............................................................................................................................................61

RELATIONSHIPS OF CONVENIENCE...........................................................................................................................61How to tell if the primary reason is immigration? (onus on the applicant)........................................................61

DEPENDANT CHILDREN............................................................................................................................................62ADOPTIONS OF CONVENIENCE..................................................................................................................................62

De Guzman v. Canada (Minister of Citizenship and Immigration) (2005) (FCA).............................................63SPONSORSHIP............................................................................................................................................................65

ECONOMIC CLASS..................................................................................................................................................66

INTRODUCTION.........................................................................................................................................................66GENERAL CRITERIA..................................................................................................................................................66SKILLED WORKERS...................................................................................................................................................66

Points Assessment...............................................................................................................................................67Officer Substituted Evaluations...........................................................................................................................68Interviews............................................................................................................................................................68Provincial Nominees Program............................................................................................................................68Commentary on Criteria.....................................................................................................................................68

CASE LAW: STANDARD OF REVIEW.........................................................................................................................69Dogra v. Canada (Minister of Citizenship and Immigration (1999) (FC)..........................................................69Sheikh v. Canada (1990) (FCA)..........................................................................................................................70Chen v. Canada (1991) (SCC)............................................................................................................................71

ENTREPRENEURS.......................................................................................................................................................72Modified Point System (35 points)......................................................................................................................72Conditions of Entry.............................................................................................................................................72

SELF-EMPLOYED.......................................................................................................................................................73INVESTORS................................................................................................................................................................73

INADMISSIBILITY...................................................................................................................................................73

REGS. S. 34 - SECURITY............................................................................................................................................74REGS. S. 35 - HUMAN OR INTERNATIONAL RIGHTS VIOLATIONS..............................................................................74REGS. S. 36 – SERIOUS CRIMINALITY........................................................................................................................74

Equivalency under s. 36(1)(b).............................................................................................................................75Li v. Canada........................................................................................................................................................75Saini v. Canada (2000) (FC)...............................................................................................................................76Burden of Proof under s. 36(1)(c):......................................................................................................................77

REGS. S. 36(2) - CRIMINALITY..................................................................................................................................77Rehabilitation under s. 36(3)(c)..........................................................................................................................77

REGS. S. 37 - ORGANIZED CRIMINALITY...................................................................................................................78Chiau v. Canada (2001) (FCA)...........................................................................................................................78

REGS. S. 38 - HEALTH GROUNDS..............................................................................................................................79Deol v. Canada (2003) (FCA).............................................................................................................................80Hilewitz v. Canada (2005) (SCC).......................................................................................................................81Expansion of Hilewitz..........................................................................................................................................82Who makes the final determination?...................................................................................................................83

REGS. S. 39 - FINANCIAL REASONS...........................................................................................................................84REGS. S. 40 - MISREPRESENTATION..........................................................................................................................84REGS. S. 41 - NON-COMPLIANCE WITH ACT............................................................................................................84REGS. S. 42 - INADMISSIBLE FAMILY MEMBER.........................................................................................................85

Justice Hughes Lecture.................................................................................................................................................85

IntroductionPolicy ConcernsLegitimate absorptive capacity concerns:

How many people can the social system support? Can the state help integrate?

PoliticsOvert and covert racism: Immigration policy re unacceptable/acceptable discrimination effected through (1) legislation, (2) state discretion, (3) courtsPolitical ideologies: Refugee status – Cold War to todayStress b/w traditional view of state sovereignty and globalization: State’s rights vs. Humanitarian rightsPolitical Reality re Jurisdiction: feds have to work with prov b/c have jur over health, schools, services

DemographicsAging population + declining fertility rate = replacement rate is 2.1; fertility rate of 1.5 below this

This is the lowest rate of growth in past 100 years – pop increased 9.9%; compare to 1901-1911 = 35%

Only reason population grew at all in the last 10 years is immigrationFederal government has now said that immigration is necessary Regional Disparity in Population

ON & BC are growing fastest, AB also growing, SK & QB, NF have declined Dramatic Changes in Quebec: In 1940s, it was estimated that Quebec

population would be 50% of the rest of the CDN population; today concerns about conserving francophone identity

Economic ConcernsEconomic interest vs. egalitarian though we’re less assimilation-ist than USGovernment does cost-benefit analyses, some immigration goodCan lead to econ/good, non-econ/bad dichotomy b/c drain on social system > subtle & systemic discrimination

But, evidence than in 10 years immigrants less burden than those born in CanadaAnd economy is not only interest: family; moral commitment: domestic and international; legal rights of refugees in international law

Three Currents Still Prevail in Public Opinion (Catherian Dauvergne)the proportion of “family class members” to “economic immigrants – the implication being that family class members are a drain on the system whereas economic immigrants are a benefit; questions about the costs of integration services for people whose first language is neither French nor English – failing to acknowledge that many Canadians are descendants of immigrants who did not speak either language; whether immigrants “take” jobs away from Canadians – not recognizing that immigrants often do the work that Canadians are not interested in doing;

Humanitarian ConcernsFocused on family reunification, family class sponsorship & refugeesResettlement Refugees: Government or private sponsors

Tend to select single, educated, healthy men but pressure to change: women at risk, persons in need of protection

Culturalquestioning immigrants who are not western or Christian and who ask that their cultural/religious practices be acknowledged – the most frequently cited example being that of the Sikh religion’s requirement that the men wear turbans; the perceived correlation between immigration and social assistance or immigration and crime.

Objectives of IRPA and their Application IRPA s. 3(1) re Objectives for Immigration

a. to permit CDA to pursue maximum social, cultural & economic benefits of immigration

b. to enrich & strengthen the social & cultural fabric of CDN society, while respecting the federal, bilingual and multicultural character of CDA(b.1) to support and assist the development of minority official languages in CDA

c. to support the development of a strong & prosperous CDN economy, in which the benefits of immigration are shared across all regions of CDA

d. to see that families are reunited in CDAe. to promote the successful integration of permanent residents into CDA,

while recognizing that integration involves mutual obligations for new immigrants and CDN society

f. to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of CDA in consultation w/ the provinces

g. to facilitate the entry of visitors, students & temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities

h. to protect the health and safety of CDNs and to maintain the security of CDN society

i. to promote international justice and security by fostering respect for human rights and by denying access to CDN territory to persons who are criminals or security risks

j. to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society

The Current Situation Ideology: Political dissidents and refugee determinations

Discrimination

No longer overt racism b/c Charter and international law, but systemic and concealed in practices, policies and laws

Disparate impact though objectively neutral, esp. on south > accessibility of opportunity influenced by race, gender, class and disability

Number of officesPoint system favours young, healthy, skilled and educated (and therefore esp. women)Financial barriers: Right of PR feeOfficer discretionVisa requirements for certain countriesConvention refugees must produce satisfactory id documentsChoice of processing – family class slower than economic

SecurityStress b/w traditional views of state sovereignty and globalizationIRPA per CIC: balance keeping criminals out while letting in refugees and desirable immigrants Emphasis on security though drafted pre 9/11 > security certificates

Acknowledgement Although there has been acknowledgement of some of the injustices of the past, there is sometimes a complacency about the present that stands in the way of recognizing the threads that connect the past to the present. Mack et al v. AG Canada (2002 On CA), Harper’s Apology

Approaches to Immigration LawThere are generally three approaches that can be taken when analyzing immigration policy:

Goal Oriented Assessment of Immigration Policy – Dominant ApproachAnalysis which identifies immigration law as being instrumental in nature – trying to question whether the rules that we have actually lead to the goal we are trying achieveVery policy driven Commonly cited goals: welfare maximization, economic productivity, combating an aging population, etc.

“Justice” Oriented Approach – Somewhat UnrealisticQuestion whether it’s right that we should set up barriers to global mobility – is it a human right to enter any country you wish, and if not, why not?Matter of justice: is there an entitlement to have barriers broken down?

Criticism: so ivory tower and unrelated to the reality of borders (e.g. US building a wall to keep out Mexicans) that to talk about the justice of open borders seems to be quite utopian. It is inappropriate to engage in such speculative idealism – to far outside the realm of realism.

Dissection of Rhetorical Arguments Against Immigration - Middle ground

In many decisions on immigration, there are embarrassments where the government has to rely upon rhetorical arguments that are easy to demolish. Lawyers have picked up on this and are attempting to

expose the embarrassment in the justifications that are often put forward for denying immigrants entrance. The idea that hard borders are natural is getting pushed down – moving towards a recognition that there is an indefensibility here.Examples of embarrassments:

Equality: liberalism is based on the equality of all individuals, but we show preference to citizens and permanent residents. This is generally recognized as acceptable. Lawyers beginning to promote the idea that citizenship and equality are somewhat incompatible - cannot bestow benefits on some (citizens) and still try and treat all individuals equally. Freedom of movement: Consider China where in the 80s and 90s when Chinese citizens were registered as living in a particular region of the country and were restricted from living anywhere else. Seems to be an offensive concept when used internally within a

country, but pretty much represents the way the world is organized on an international scale.

Often defined it in terms of nationhood - governments tends to be local in nature, and there is a need to organize ourselves into units with defined membership.

Instead of the basic right of sovereignty, maybe we should see it as a luxury that carries with it a need to pay for the suffering of other individuals. Part of our obligation to the global whole.

Treblico ArticleSuggests that there are two concerns in wealthy countries about borders:

Security: we are all entitled to be concerned about bad people invading our space. If all countries have this concern, there is nothing wrong in principle about immigration control.

E.g. European Union has established a European perimeter but allows fairly unrestricted movement within EuropePeople are entitled to be worried, but this concern should be international in scope

To protect the welfare based economy: this system will break down without borders

However, need to look around for alternative devices so that we can transcend these problems.Can let people into the country, but perhaps require them to have private health insurance, sponsorship from family/friends/employers, etc.

Overall: politics can conflict with economics. But in the field of immigration regulation, there is no reason to say that there is a domestic political issue at stake – the issue at stake is the same across the world. Should broaden our concerns to the international level.

Galloway’s criticism: suggestion is not a purely economic solution – we have many public social services, such as healthcare, education, etc. Seems to suggest that by requiring these people to not be a burden on the state, we would essentially be denying them many of the essential aspects of Canadian citizenship by denying them access to public social programs.

Three interconnected concerns:

Economics (universal)Political sovereignty (local)Political morality (universal)

Historical Perspective on ImmigrationThere was no real immigration LAW per se, until Confederation. Some regulation begins with Europeans, who were first to impose controls on movement of “aliens” discretion to deal with aliens considered a question of the royal prerogativeHistorically, at common law aliens not considered to have any rights. See Lord Denning in R. v. Governor of Pentonville Prison, ex parte Azam [1973 – BR] alien is in the country and removable at pleasure of Crown, who may also impose any conditions it sees fit Original Approach = most favoured nation or preferred nation designations for countries from whom immigrants were welcomed historically common sources = BR, FR and USA. Status extended to Eastern European countries, Russia and Germany when striving to populate the prairies.Until 1960-1970s with creation Bill of Rights, Canadian immigration policy was relatively informal – accomplished primarily through regulations which discriminated on the basis of race, ethnicity and country of origin, etc.

Chinese Immigration to CanadaOnly ethnic group that had legislation dealing specifically with themGeneral legislation had “preferred nation” designations and quota systems for other nationsAsian immigrants, particularly Chinese, willing to work harder for less money = seeds of tension among white settlers over jobs, etc.

1870s: many Chinese immigrants came to work on CPR. Commonly expected that this would be a temporary arrangement when they showed no signs of leaving, tensions rose further. Exacerbated by rising success of Chinese businesses in white settlements – upset white merchants. BC repeatedly asked feds to “do something”, but feds were dependent on Chinese labour to finish railroad waited

BC frustrated by lack of response from Ottawa began to enact their own legislation

BC’s Anti-Asian Immigration Legislation efforts began as soon as BC joined Confederation in 1871 and continued until 1890s.

Created impossible tests like the literacy test. Technically to test everyone, but only applied to those BC officials wanted to keep out.BC Acts passed every year from 1871 until early 1890s were consistently ruled ultra vires so BC eventually gave up appeasement began with federal Chinese Immigration Act 1885

Development of restrictive federal legislation:Chinese Immigration Act 1885 – imposes $50 head tax, restrictions on movement inside and outside Canada, severely limits family-sponsorship (serious implications for Chinese men who came w/o their families), and limits numbers that can be carried by each ship. Initially reduced immigration, but as Chinese population prospered, more could afford head tax.Chinese Immigration Act 1900 – head tax raised to $100 with some effect.

Chinese Immigration Act 1905 – head tax raised to $500 – virtually prohibitiveChinese Immigration Act 1923 – essentially excludes Chinese immigrants from Canada (limited exceptions for study, diplomats, etc.) – only 50 Chinese lawfully landed in Canada b/w 1923 and 1947 (likely had political connections)This act finally repealed in 1947.

Union Collary v. Bryden (1899) Facts: Challenge to BC legislation = 1890 Coal Mines Regulation Act (BC) “no Chinamen shall be employed in any mine below ground.”

Dunsmuir owned most of Victoria, preferred to employ Chinese underground as were cheaper labour, more willing to work. Political pressure from white majority (i.e. complaints of “stealing jobs” etc) made Legislature pass the Act.

Issue: Clash b/w s. 91(25) Naturalization of Aliens and s. 92(13) Property and Civil Rights.Held: s. 91(25) included the consequences of alienage.

Since aliens clearly within federal jurisdiction, consequences of alienage are also clearly within federal jurisdiction provincial legislation is ultra vires . “By virtue of s. 91(25), the legislature of the Dominion is invested with exclusive authority over the rights, privileges and disabilities of the class of Chinamen, and indeed of any aliens.”

Comment: Bryden essentially seemed to eliminate a role for the provinces in immigration. Subsequent cases struggled to distinguish Bryden or to use it in a beneficial light (i.e. to strike down unreasonable provincial legislation). Neither effort was very successful.

Quong-Wing v. The King (1914) (SCC) Facts: The restrictions placed on Chinese restaurant owners under a Saskatchewan statute challenged as ultra vires. The statute prohibited the employment of white females in the restaurants of any ‘Chinaman’ and penalized any person who permitted white women or girls to reside or lodge in, or frequent such places to protect their morals. Held: that pith and substance did not deal with alienage or naturalization, so it was intra vires under property and civil rights.

Mack v. AG Canada (2002) (OCA) Leave to appeal to SCC dismissed w/o reasons April 24, 2002

Theme: Although there has been acknowledgement of some of the injustices, there is sometimes a complacency about the present that stands in the way of recognizing the threads that connect the past to the present.Facts:

Group of Chinese Canadians made up of some individuals who had actually paid the head tax and others who were spouses or descendants of those who had paid the tax, attempted to utilize the Charter and international law to obtain redress from Canada. Cummings, J. of the ON SCJ struck the claim as disclosed no reasonable cause of action.

Argument: claim under s. 15 of Charter, remedy claimed was reparationsBillions of $ claimedHead tax & Chinese immigration policy violated customary int’l lawFed government unjustly enriched

Held: Dismissed the appealCharter does not have retroactive/retrospective effect, so head tax payers don’t have a claim under s. 15

Impact of head tax did not mean present-day discriminationAmeliorative settlements with one group (Japanese) does not create an inference for another

International customary law – Court found that CDN policy wasn’t in violation; all countries at the time discriminated on the basis of race

Even if there was such law, the domestic statute (CIA) would meant that int’l law was not law in CDA

Unjust enrichment – legislation justified the tax; legislated = lawful

Contrast this case with Benner , where there was a true retrospective application:

Benner Case Facts: prior to the Charter, we had laws of citizenship that discriminated based on place of birth. Born outside of country: children of a Canadian father = automatic citizenship. Children on Canadian mother = must apply for citizenship. Benner was denied citizenship because only connection through mother and had a criminal record.Issue: Challenging not the actual law, but the executive decision to refuse him citizenship.

Although the law was enacted prior to the Charter, the decision to not grant citizenship was present – application of the law is discriminatory, not against him but against his mother = discrimination based on gender.Not attacking the legislature having enacted the law in the past, but attacking the present adoption of that law to make that particular decision.

Held: Benner wins on both points

Sikh (East Indian) Immigration to CanadaOnly after 1931, with the Statute of Westminster, that any conflict between Canada and the UK could get settled. Began around 1887 already some Sikhs in Canada due to British historical connections. Not to be mistaken for South-Asians, Indians or HindusMajor difference = Sikhs were British subjects, resident in India (originating in Punjab)BC appeals again to Ottawa for help, begins to develop their own anti-Sikh policies request is more complicated due to Sikhs’ British status. Need to avoid negative reaction of Imperial government, who are vulnerable to independence movements in India and reliant on Sikh assistance.Ottawa appoints another Commission headed by William Lyon Mackenzie King. He travels to London and Delhi. Comes up with creative solution in

concept of Continuous Journey / Voyage requirement for potential immigrants.

Continuous Journey = can only come to Canada on a ticket purchased in your country of origin and must travel DIRECTLY to Canada (no stops in other ports). Seems innocuous, and not facially anti-Sikh, BUT… there were no direct sailings b/w Canada and Delhi or Calcutta (or anywhere in India)Becomes a policy choice have a policy that need not be enforced where “inconvenient” never enforced against “white” people, only against those of colour.

Background to Munshi SinghIn 1914, the relationship between the UK and Canada is not one of equals - Canada has limits on its authority over the status of British citizens. Very basic status of being a Canadian raises questions about the sovereignty of the Canadian parliament.

British government is trying to convince Canada and other colonies that once you are born into one part of the empire, you are free to move to any other part of the empire. Canada rejects and argues that we are a sovereign nation within the empire and may enforce its own territoriality.

Re Munshi Singh (1914) (BCCA). Background: 376 East Indians denied entry although continuous journey on Komagata Maru summer 1914

Affluent Sikh businessman charters the ship for Canada from IndiaSmall number Canadian residents allowed off, rest kept in harbour for 2 months

Ottawa informed that ship was full of artisans passed laws against immigration of artisans to Vancouver b/w June 1 st and August 31 st of 1914

Argument: East Indian man argues that because he is a British citizen, to exclude him from the country would be an act of discrimination. Not just talking about membership in the country, but membership in the empire.

Argues that Canada never had the sovereignty to create an immigration law.

Held: Immigration Act is not unconstitutional: BNA gave Feds sovereign powers, subject only to disallowance. Canada is a sovereign nation and of course can create rules to keep out undesirable people – essence of sovereignty.

Comment: Decision reflects court’s disinterest in technicalities, etc. Upholding the legislation on the basis of its perceived moral principles – better to keep non-white people where they were. Inherent in this was the belief that white people could move freely.

Evolution of Federal Immigration LegislationA history of facially racial legislation morphing into facially neutral legislation, that remained racist in application.

Are we really that much better? We still “discriminate” against people based on occupation, ability to speak the languages, education, etc. Check the selection criteria.

Five principal stages in federal immigration legislation:Pre-stage 1, there were bits & pieces of imperial & pre-confederation legislation in the colonies that dealt mostly with controlling ports

Tariffs, taxes, etc., but didn’t deal much w/ peopleGeneral idea was that if you could make it to Canada, you could stay if you could survive

REMEMBER that the Constitution Act 1867 gave concurrent jurisdiction to feds & provinces over immigration, subject to federal paramountcyImmigration Act, 1869

Served constitutional purpose of “occupying the field” trying to pre-empt BC’s efforts at creating immigration laws.Actually contained very few controls, just broad statements re: immigration

Immigration Act, 1906Important piece of legislation, because government decided that immigration was a good thingUK government controlled Canadian immigration policyUK government decided Canada should be the “breadbasket of the Empire”, but this necessitated importing more people to farm the prairiesThis was the beginning of selecting immigrants – here selecting immigrants who could farmFacially racialized system people chosen on the basis of race, ethnicity, class & country of origin

Immigration Act, 1952First “facially” non-racist immigration act BUT regulations still racially motivated; government still permitted to rank people in terms of nationality, ethnic group, class or geographical area of originRacially, ethnically driven policy that favoured CaucasiansWhy the change? WWII, the holocaust provoked recognition that people were persecuted b/c of their ethnic group, nationality, etc.

UN now in place, human rights on the stage, racism becomes unacceptable (not to be confused with racism disappearing)Idea that people have certain basic human rights (not to be killed, have a place to live)

1960 – regulations changed to remove racial provisions; selection based on things like education

Immigration Act, 1976Big change in terms of selection of immigrants was the move to the “points” systemStatute gave Cabinet power through regulation to specify criteria (factors of assessment) for selection

E.g. language ability, education, job experience, age, job offer, etc.These criteria took account of demographic and workplace needsAllowed family-sponsored immigration

Immigration and Refugee Protection Act, 2002Immigration law is characterized by significant discretion

Completely new Act – IRPA – came into force June 28, 2002. While the basics stay the same, there is no telling how the application will change.

Discretion expanded under IRPA now have power to admit anyone on the basis of humanitarian and compassionate grounds, or if the person is in genuine need of protection.

Also have increased discretion to refuse to admit people – for safety and protection of Canadian society

Valid for Canada to discriminate based upon able bodied-ness and health since there is a need to build up a successful labour force.

Although such a policy would be problematic if used internally, for some reason is much less controversial when used for screening of immigrants. Don’t seem to be paying as much attention to issues of discrimination when building economic immigration.

Decisions Made Outside of Canada Migration Integrity Officers (MIO) in key locations overseas work with

international partners, local immigration and law enforcement agencies, and airlines to combat irregular migration, including people smuggling and trafficking. These officers also support document integrity and anti-fraud activities by detecting and intercepting fraudulent travel documents or fraudulently obtained travel documents.

Individuals who are outside Canada are hindered from making a refugee claim against their home government, perhaps condemning people to remain in a country where they are being persecuted. Were the individuals able to reach Canada, they would likely be able to make a valid refugee claim. MIO tend to work in refugee producing countries. People coming out of these countries tend to rely on false documents.

Determination of Right of EntryIRPA s. 19(1): Citizens and Indians (under the Indian Act) have a right to enter and remain in CanadaIRPA s. 27: Permanent residents have the right to enter and remain in Canada, subject to the provisions of IRPA (conditional right only)

As long as the visa officer is satisfied that they have that status (IRPA s. 19(2))

IRPA s. 29: Temporary residents are authorized to enter and remain in Canada on a temporary basis, subject to the provisions of the Act (conditional right only.

Distinction between a Permit and a Visa Permit = an exceptional document granted to individuals who would

otherwise be inadmissible to come to Canada (e.g. individuals with a criminal record, health problems)

May apply to the Minister to be granted temporary permission to enter Canada.Device that the government uses to allow individuals against whom a negative decision has or would be made, but where there are reasons that they should be granted entrance to Canada, to enter the country.

Visa = granted to individuals who make an application and are granted admission to Canada

Grant of Visa (PRV and TRV)General Rule: (IRPA s. 11) before arriving in Canada, foreign nations must obtain a visa, whether aiming to come as a temporary or permanent resident (Confirmed in Regs ss.6 and 7)

Exceptions (Regs. s. 7(2)): Temporary resident visa not required for countries listed in Regs

s.190 Countries that are on this list Canada is not concerned about, e.g. US, UK, Europe, JapanA country will not be on the list if Canada is having trouble with residents from that particular country not leaving after their temporary visa expires

Those who have a Temporary Resident Permit unde r IRPA s.24 are also exempted (note difference between a Permit and Visa)

Examination for admissibility:The visa shall be issued following an examination where the officer is satisfied that the foreign national is not inadmissible and meets the IRPA requirements:

PRV: Application must be made in country of residence or a country of nationality (Regs s. 11)

One year residence required for PRV - required so that we can look into your past criminality, security, health issues etc.Exception: Some individuals may apply for a Permanent Resident Visa from within Canada under the authority of IRPA s. 25 (i.e. don’t have to leave the country to apply)

TRV: Application may be made in the country of “presence” (i.e. any country outside of Canada) for a temporary resident visa

Obligation to Tell the TruthSince misrepresentation is a ground of inadmissibility (IRPA s. 40), failure to abide by the obligation to tell the truth (IRPA s. 16) may have serious consequences.

If you are applying for permanent resident status and you lie on your application, you may be stripped of your citizenship years down the road (could be decades later!)One of the most serious sections of IRPA – GOTTA TELL THE TRUTH.

Application for a Permanent Resident VisaClasses of Applicant

IRPA s. 12: family, economic and refugee Economic immigrants - Citizenship and Immigration Canada uses several

sub-categories of economic immigrants. The high-profile Skilled worker principal applicants group comprised 19.8% of all immigration in 2005.

Family class - Under a government program, both citizens and permanent residents can sponsor family members to immigrate to Canada.

Refugees - Immigration of refugees and those in need of protection.Discretion to disregard the criteria (e.g. Regs s. 87(3))

Details found in Parts 6, 7, and 8 of the Regs (ss. 73-178) The application is on behalf of a principal applicant and accompanying

family members (Reg. s. 10)

Medical AssessmentThe criteria of medical inadmissibility are found in IRPA s. 38Under Reg s. 30, applicant for Permanent Resident Visa and family members (as defined in Reg s. 1(3)) must submit to medical examination.

Medical Practitioner does not decide the question of inadmissibility. Rather, the Medical Officer sends assessment to regional office, which makes a recommendation to the Visa Officer.

Police and Security ChecksApplicants for Permanent Resident Visa may require a police certificate of non-criminality. Each country has a different process.

The applicant is asked to identify if they have a criminal record (Regs s. 30)

Other ChecksFunding check: Visa Officer will determine whether the applicant has funding to support self and family (IRPA s. 39)Check of relationship amongst ApplicantsDocument check: verify authenticity of documents

Grant of Status for Those Holding a Permanent Resident VisaIRPA s. 21: The decision is based on meeting the criteria found in IRPA s. 20

You can only sponsor certain family members for permanent residency. Can sponsor parents and grandparents, but cannot sponsor brothers and sisters.

Some families may try to create a loophole by sponsoring their parents, who may then bring their children (siblings of the original sponsor) over as dependants. This is not a problem if the parents are intending to remain as permanent residents, but is a problem if the parents are only coming over in order to leave their children in Canada and go back home – “courier parents”.

Application for Temporary Resident VisaMedical and Police Check process is less rigorous than for a PRV.

Not all TRV applicants must undergo a medical check The applicant is asked to identify if they have a criminal record (Regs s.30).

A letter of invitation may be requiredA major concern will be whether the applicant will leave Canada after the visa expires.

Grant of status for Those Holding a Temporary Resident VisaIRPA s. 22 and s. 20

Opposite concern from permanent residents – want to ensure that they will leave Canada upon the expiry of their visa.

Dual intent provision is important (IRPA s. 22(2)): Although you may have the intent of eventually returning to Canada as a permanent resident or otherwise, MUST still be intending to leave Canada at the expiry of your visa.

Application for Work Permit or Study PermitForeign National may wish to come to Canada to visit, work or study.

General Rule: foreign national may not work nor study in Canada without authorization ( IRPA s. 30 ) You may not enter Canada to work or study without obtaining a Work Permit or Study Permit (Regs ss. 8 and 9)

Exceptions (Regs186,188): there are situations where you may apply for a work and study permit from inside the country, or you may not need a permit at all.

The criteria and process for getting TRV, Work Permit and Study Permit are outlined in Parts 9 -12 of Regs (ss.179 -222)

Live-In CaregiversNote the special situation of Live-In Caregivers (Regs ss. 110 – 115)

Specific education and experience required. No accompanying family members allowed.

Other ApplicationsApplication for Travel DocumentUnusual Process under s. 31 of IRPA for individual who has lost PR Identification Card Application for Humanitarian and Compassionate Leave under IRPA s. 25 Application for Temporary Resident Permit (IRPA s.24)

Eligibility to Make a Refugee ClaimEligibility to be referred to Refugee Protection Division of IRB (IRPA s. 101)

Authority for Safe Third Country Agreement : if the country you are coming from has been identified a safe country, you are not eligible to make a refugee claim.

However, this may present problems where the government of the country of origin has changed and the country may in fact no longer be safe

Serious Criminality requires a Danger Opinion: if you are a serious criminal (as defined in s. 101), you will not be allowed to make a refugee claim. Minister must issue a Danger Opinion. Decision of whether someone is eligible to make a refugee claim must be made within 3 days (IRPA s. 100)

Vast majority of people who try to make a refugee claim are eligible

Direct Back to the USRegs. s. 41: Persons trying to come to Canada to claim refugee protection in order to avoid the U.S. may be directed back to the U.S. without requiring any assurances from the U.S. that they will not be detained.

Generally sent back because of administrative reasons of the difficulty of dealing with the individual claim in the circumstances.  A controversial and widely criticized provision allowing individuals to be sent back to the US. Likely not consistent with our international obligations.There is no right to counsel at a point of entry

Preparation of a Report of Inadmissibility (s. 44)IRPA s. 44: An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.

“May” suggests that preparing a report is discretionaryIn limited circumstances, there may be issuance of a removal order (IRPA s. 44)

Arrest and Detention IRPA s. 55: An officer may issue a warrant for the arrest and detention of a permanent resident or a foreign national who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada. Factors to be considered found in Regs s. 244-250. Examples:

Whether they are a flight riskWhether they present a danger to the public

IRPA s. 57(2): may order the detention of a permanent resident or a foreign national if there is a danger to the public or they are unlikely to appear for examination, an admissibility hearing or removal from Canada.

Decisions of International CommitteesWhere an aggrieved individual has exhausted all domestic avenues of redress, a complaint may be made against Canada at an international tribunal

The United Nations Human Rights Committee (established by the Protocol of the Int’l Covenant on Civil Political RightsThe Committee Against Torture (established under Article 17 of the Convention against TortureThe Inter-American Commission on Human Rights (Limited powers because Canada is not a party to the Inter-American Commission on Human Rights)

Decisions Made Within CanadaApplication for Family Sponsorship

Where people are apply to come to Canada in the Family Class stream, their application for a visa must be made at the same time as an application for sponsorship made from within Canada.

Family Class defined in Regs s. 117

Sponsorship requirements found in Regs ss. 130-137

Strategic Occupations and Business Immigrants - Provincial Nominee Certificate

The British Columbia Provincial Nominee Program (BC PNP) offers accelerated immigration for qualified skilled workers and experienced entrepreneurs who wish to settle in British Columbia (BC) and become permanent residents of Canada.Selects and nominates potential immigrants for permanent residence who have the ability to become economically established in BC, and who will provide significant economic benefits to the province.Regs s. 87: individual must be named in a nomination certificate.

Arrest, Detention and s. 44 ReportSame as with port of entry

Admissibility HearingConducted by the Immigration Division of IRBQuasi-judicial process, generally with duty counsel available to the refugee claimantPrimary determination: why did the visa officer believe them to be inadmissibleIRPA s. 86: allows for secret hearings

Allows for evidence to be heard in camera without the claimant knowing what the evidence isControversial: low level officer, clearly not of the same training as a judge, is making decisions that will affect the rights on individuals.

Detention ReviewImmigration Division of IRB (IRPA ss. 54-60)Again, duty counsel available to the refugee claimants

Issuance of a Removal Order IRPA s. 45: After the admissibility hearing, must authorize the person

to enter Canada (with or without conditions) or issue a removal order. Regs ss. 223-229Must distinguish between:

Deportation order (more serious): can never enter the country again unless you get the permission of the Minister. Removal order: must leave the country for a set period of time

Security CertificateA security certificate is a legal mechanism by which the Government of Canada can detain and deport foreign nationals and all other non-citizens living in Canada. The federal government may issue a certificate naming a refugee, permanent resident or any other non-citizen who is suspected

of violating human or international rights, of having membership within organized crime, or is perceived to be a threat to national security.[1]

Individuals named in a certificate are inadmissible to Canada and are subject to a removal order.

Determination of inadmissibility by Ministers (IRPA ss. 76-85)Where the government has reasonable grounds to believe that the individual named in the certificate is a danger to national security, to the safety of any person or is unlikely to participate in any court proceedings, the individual can be detained

Process under Legislative Review

Appeal Jurisdiction of IADThe Immigration Appeal Division of IRB is responsible for hearing appeals on a number of matters, including:

Appeal for a Family Class sponsor: If you are trying to sponsor family member under the family class, but have been told that you cannot act as a sponsor.Removal Order for Permanent Resident visa holder: have been granted a visa, but have then had a removal order issued against themRemoval Order for Permanent Resident or Protected PersonDecision made outside Canada relating to residency requirement of permanent resident not being metMinisterial appeal of ID decision

Refugee DeterminationDon’t have to make your refugee claim at the port of entry. Eligibility decision will be made in Canada if claim is made in Canada

IRPA s. 96: conferral of refugee protectionIRPA s. 97: incorporates the definition of a refugee from the UN Conventions Against Torture

A person in need of protection is a person in Canada whose removal to their country of origin would subject them personally

to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; orto a risk to their life or to a risk of cruel and unusual treatment or punishment…

IRPA s. 98: Specifically excludes from the definition of a refugee under s. 97 certain types of persons specifically identified in the Convention Against Torture

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

Chairperson’s GuidelinesThe Chairperson has issued a number of Guidelines that relate both to the interpretation of the law and to processWhile strictly speaking not law, they are important. Failure to consider Chair’s guidelines may ground a judicial review.

E.g. need to consider different circumstances of men and women.

Delaying and Preventing DecisionsVacation of Decision

Under IRPA s. 109, the Minister may apply to have a positive decision vacated on grounds of misrepresentation of withholding material.

Suspension because of Extradition ProceedingRefugee claimant proceedings may be suspended where the person’s extradition is being sought on a serious matterIRPA s. 105: If the extradition application is allowed, the refugee claim is rejected

Suggests that criminal issues trump refugee issuesExtradition: process that can apply to both citizens and non-citizens where an individual can be sent back to another country where criminal charges are waiting against that individual.

But cannot be sent back to a country where they may face the death penalty without assurance from that country that the death penalty will not be used on that individual – would violate Charter s. 7

Pre-Removal Risk AssessmentIRPA s. 112: Entitlement to apply to Minister (PRRA Officer) for Pre-Removal Risk Assessment

Used to determine how much risk a person would face if returned to their country of origin – if high level of risk, may be granted protectionLimitations of who may apply

IRPA s. 114: Successful application can lead to Refugee protection or stay on removal order

“Bad people” can through this process be subject to a political decision which really weighs their need for protection against Canada’ need to get rid of them – cannot come down fully in favour of granting them protection.

Stays of RemovalThere are limits on when a stay will be grantedStays may be issued by the Minister, by IAD and by the Federal CourtRegs ss. 230-233 - Examples:

Reg. s. 233: Ministerial Stay may be based on general humanitarian or public policy reasons. Reg. s. 230. (1) The Minister may impose a stay on removal orders with respect to a country or a place if the circumstances in that country or place pose a generalized risk to the entire civilian population as a result of: (a) an armed conflict within the country or place; (b) an environmental disaster resulting in a substantial temporary disruption of living conditions; or (c) any situation that is temporary and generalized.

Enforcement of Removal OrdersIRPA s. 48:

(1) A removal order is enforceable if it has come into force and is not stayed.

(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.

Subject to the discretion of the removal officer to determine “reasonably practicable”

Access for Federal CourtAn application for leave is required (IRPA s. 72)

Only if the judge certifies an issue as a serious matter of general importance may an appeal to the Federal Court of Appeal A be made (IRPA s. 74)Where a judge determines that a Security Certification is reasonable, the decision cannot be appealed.

CitizenshipCitizenship Act 1977 is the primary source of lawAdditional sources:

Citizenship RegulationsEarlier ActsConstitution Act 1982IRPA s. 19(1)

Birth in Canada Citizenship Act s. 3(1)(a): A person is a citizen if they were born in

CanadaProblem with manipulating the rule: some non-citizens may purposefully bear their children in Canada so that the children born in Canada will be granted citizenshipAlternative: requiring parent to have a substantial connection to the country (as required in Ireland)

E.g. being a student or a refugee claimant does not establish a substantial connection with Ireland

Citizenship is not constitutionally mandated as in the US (or is it?) There is reference in the constitution to citizenship, but no definition.

Constitutional meaning of citizenship is whatever meaning the Federal legislature gives to it

Problematic because creates a floating definition based on legislative will.

Uncertain what impact could be

Birth Outside of Canada Citizenship Act s. 3(1)(b): a person is a citizen if he were born outside

Canada and at the time of birth one of his parents, other than a parent who adopted him, was a citizen;Note the difference between:

Those born to a parent who was born in Canada or who naturalized: child gets automatic citizenshipThose born to a parent who was also born outside of Canada and gained citizenship through this rule: could be a problem - child must apply to retain citizenship under s. 8

Citizenship Act s. 8: Where a person who was born outside Canada is a citizen for the reason that at the time of his birth one of his parents was a citizen, that person ceases to be a citizen on attaining the age of twenty-eight years unless that person

(a) makes application to retain his citizenship; and

(b) registers as a citizen and either resides in Canada for a period of at least one year immediately preceding the date of his application or establishes a substantial connection with Canada.

NOTE: This rule is currently being changed!

If two generations are born outside of the country, there is a likelihood that there is not a substantial connection to Canada. Onus is placed on the person seeking to retain their citizenship to show that they have a meaningful connection to Canada. Dealing with past problems: the Benner situation

Benner v. Canada (1997) (SCC) Facts: Benner was born abroad before February 15, 1977 to a Canadian mother and a non-Canadian father. Benner was prevented in 1988 from being accorded the automatic right to citizenship granted to children of Canadian fathers.

For children born outside of Canada, the law that applied was different depending on whether their mother or father was a citizen

If father was Canadian = citizenIf mother is Canadian = must be naturalized

In Benner’s case, only his mother was Canadian and he was refused citizenship because he had a criminal record.

Held: C hildren born abroad before 15 February 1977 of Canadian mothers were to be treated the same as those of Canadian fathers

Victim of gender discrimination against his motherBecause the decision to refuse citizenship occurs after the Charter, there is no retroactive application

Comment: This form of distinction is unconstitutional – but instead of changing the rule, Parliament extended the application period under Citizenship Act s. 5(2)(b) until August 2004 to allow for a special

application to be made in response to a finding that the act is unconstitutional.After this, there were a number of people discovered that they were Benner kids. Although they were dealt with unconstitutionally, they were out of time to make the application!The new legislation addresses the fact that the Benner amendment is insufficient in fact need to remove the gender distinction.

Adoption Amendments – December 2007 Amends Citizenship Act s. 3 so that adopted children who attain

citizenship without first obtaining permanent resident status are Canadian citizens.

If you’re intending to adopt a child overseas, you can simultaneously make an application for the citizenship of the child.

Citizenship Act s. 5.1(1): Subject to the regulations and upon application, the Minister shall grant citizenship to a minor child adopted by a Canadian provided the adoption: a) was in the best interests of the child;b) created a genuine relationship of parent and child;c) was in accordance with the laws of the place where the adoption took

place and the laws of the country of residence of the adopting citizen; andd) was not entered into primarily for the purpose of acquiring a status

or privilege in relation to immigration or citizenship.Big difference is that if you adopt a child overseas and they are only granted permanent resident status, you are in a more difficult position than if the child had been granted citizenship (e.g. cannot travel on a Canadian passport, issues with health).

Grants of CitizenshipCitizenship Act s. 3(1)(c): Persons who are granted citizenship are required to take an oath of citizenshipGeneral requirements to be granted citizenship (s. 5(1)):

Make applicationOver 18 years of agePermanent residentResided in Canada 3 out or 4 preceding yearsKnowledge of an official languageAdequate knowledge of Canada!Not under a deportation order

Exception: some requirements may be waived on compassionate grounds (s. 5(2), 5(3))

E.g. for minors, the requirement of age

Special Grant of Citizenship – s. 5(4)Citizenship Act s. 5(4): In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where

such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.

E.g. Honorary Canadians

Taylor CaseThe Federal Court of Appeal ruled Mr. Taylor was not a citizen because he was born before his parents married and because he left Canada as an infant with his mother before the 1947 Citizenship Act was passed. The government felt it had to pursue the court case because the issue had legal implications which went beyond Mr. Taylor. In December 2007, the Minister gave him a special grant of citizenship under section 5(4) of the current Citizenship Act which allows the minister to grant citizenship to individuals in special circumstances.

Residency RequirementOne of the most difficult requirements for citizenship judges! Two approaches to the residency requirement are debated in Chen and Xia:

Muldoon Model (from Chen ): Purpose of the residency requirement is to ensure that all who are granted precious Canadian citizenship has been presented with the everyday opportunity to become “Canadianized”.

Process that you can only go through by physically being in Canada Reid Model (from Xia ) – Identified six parts of the test:

Somebody doesn’t have to be physically present in Canada for the purposes of residency – can learn to be a Canadian even when outside of Canada. Can be connected to Canada through means other than geography:Test: Has the person centralized their mode of existence in Canada

Not just about geography (counting days in the country), but also should consider other factors such as: Where the applicants family and dependants are located If there trips to Canada reflect a pattern of returning home or merely

visiting

Chen v. Canada (MoC&I) (2003) (FTD) Held: appeal by the Applicant from a decision of Citizenship Judge dismissedArrived as a landed immigrant, left, short visits, shortage of 452 days of the required 1095 days.Challenges:

Interpretation of Citizenship Act s. 5(1)(c): say confused two testsPourghasemi: must spend 3 of four years Papadogiorgakis and Koo test: may succeed even if has not spent the required three years.

Citizenship judges, in reaching a decision, will follow one of the two: If appeal heard by a judge who follows the “other” test the decision will likely be overturned. Cannot be helped save by a clarification by Parliament.

Canada (MoC&I) v. Xia (2002) (FCT)Minister appeals decision of a Citizenship Judge recommending Xia be granted citizenship. Appeal allowed and decision set aside, though can re-apply and CJ will have to apply this criteria758 days short of the 1,095 days of residence required by paragraph 5(1)(c) of the Act. CJ considered questions above in Re Koo

On appeal not like Chen where use test you like, question = where citizenship judge, in clear reasons which demonstrate an understanding of the case law, properly decides that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition…

There should be some evidence that would demonstrate a reaching out to the Canadian community, not merely passive indicia. In the absence of such a reaching out, or a rational explanation for the lack, that absence is a factor in assessing the quality of the connection

Which approach should be preferred? As long as the citizenship judge chooses one of the approaches, then they in fact

cannot be faulted. Essentially saying that they are dispensing with the rule of law to allow lower courts to in fact chose which law they would like to apply and they will be not be second guessed on this.

Should defer to the citizenship judge’s discretion – Federal Court is essentially allowing conflicting views of residency to exist. Suggests that this is something only the legislature can deal with.

Shah Case - Should look for active involvement, not just residing passively for 3 years.

Contrast with Permanent Resident Requirements:According to IRPA s. 46, a permanent resident may lose their status where they have not been physically present in Canada for 730 days within a five year period.

Special Residency ProvisionsCitizenship Act s. 21: Not considered to be residing in Canada when you’re under a probation order, on parole or in prison.

Not “Canadianizing” yourself in the right wayCitizenship Act s. 5(1.1): Any day during which an applicant for citizenship resided with the applicant’s spouse who at the time was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the federal public administration or the public service of a province, shall be treated as equivalent to one day of residence in Canada.

Citizenship ProceduresCitizenship Act s. 14: Citizenship judge decides whether requirements of citizenship are met. Where citizenship judge finds that requirements are met the Minister shall grant citizenship.

E.g. the judge can decide whether or not the person can speak an official language, or has adequate knowledge of Canada.

Citizenship judge may disapprove applicationAn appeal is available to the Federal Court. No further appeal is available.

Very difficult position to put people in – negatively impacts the development of the lawThis is an appeal to the Federal court, not judicial review suggests that you have the power not only to overturn the decision, but to grant a new decision. Process is unique to the citizenship process

Security ConcernsSecurity concerns can be taken into account when deciding if someone should be granted citizenshipCitizenship Act s. 19: Where the GiC declares reasonable grounds to believe that an applicant will engage in acts:

(a) that constitutes a threat to the security of Canada, or(b) that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment,

the Minister may make a report to the Review Committee.

Procedure for denial for reasons of security and organized criminality:Report of Security and Intelligence Review Committee (SIRC) by Minister – s. 19(2)SIRC (possibly a retired judge) investigatesApplicant is given a summary of information to inform them as fully as possible of the circumstances that gave rise to the report - s. 19(5)SIRC reports to GiC

Parallel to the security certificate process that has been so controversial for permanent residents

Revocation of CitizenshipYou cannot lose citizenship because of criminal activity!Citizenship Act s. 10: Where GiC is satisfied that person has obtained citizenship by false representation or fraud or by knowingly concealing material circumstances, the person ceases to be a citizen.

Deemed to have obtained citizenship improperly if the person was admitted to Canada for permanent residence by fraud, etc.

Procedure for Revocation Minster gives notice that they’re going to report to GiC

Applicant has 30 days to request that the matter to be sent to Federal CourtFederal Court decides whether citizenship was obtained improperlyThere is no appeal from this decision

Very controversial: Parliamentary Standing Committee has recommend depoliticization of revocation process.

War Crimes ProgramAnnual Reports – approximate 54 people have lost their citizenship since World War II for war crimes

Initially intended to prosecute individuals for war crimes, but proved to be a failure because of the difficulty of obtaining evidenceNow, policy is to simply deport war criminals rather then prosecute them – rather, there is an inquiry with a much lower standard of proof – required only reasonable grounds to believe

Revocation of citizenship of war criminals has proven difficult (See Oberlander)

Oberlander CaseFacts: Oberlander is a Canadian resident whose citizenship has been revoked twice since 1995 ostensibly because he failed to disclose his wartime record as a translator for a Nazi-era German military anti-partisan occupation force during WWII from 1941-43 death squad when applying for immigration to Canada in 1954.

His Canadian citizenship was restored the first time by the Federal Court of Appeal.A federal judge ruled in 2001, on a balance of probabilities, that when he moved to Canada from Germany in 1954, Oberlander had lied about his unit membership.

Individual was told to present evidence about his history in Canada. Government didn’t consider that evidence that was submitted.

The judge rejected three affidavits that citizenship applicants were not questioned about activities during the Second World War.

Reveals two things:General policy was only to revoke citizenship of war criminals

Oberlander was only an interpreterGovernment will exercise discretion in deciding whether to revoke the citizenship of people who have lied

Aftermath: Oberlander faces deportation hearings, the government's next stage in its policy toward those suspected in involvement in war crimes, crimes against humanity or genocide.

Renunciation of CitizenshipNot everyone can renounce citizenship – e.g. minors Dealt with in Citizenship Act s. 9(1): A citizen may, on application, renounce his citizenship if he:

(a) is a citizen of a country other than Canada or, if his application is accepted, will become a citizen of a country other than Canada;(b) is not the subject of a declaration by the Governor in Council made pursuant to section 20;(c) is not a minor;

(d) is not prevented from understanding the significance of renouncing citizenship by reason of the person having a mental disability; and(e) does not reside in Canada.

Getting Citizenship BackIf your citizenship is revoked or renunciated, you become a permanent resident and then may apply to regain it.

BUT you may not be able to get it back if you lose permanent resident status or are under a removal order:

Citizenship Act s. 11:11. (1) The Minister shall grant citizenship to any person who, having ceased to be a citizen,

(a) makes an application for resumption of citizenship;(b) is not the subject of an order of or a declaration by the Governor in Council made pursuant to section 10 or 20 of this Act or section 18 of the former Act;(c) is not under a removal order; and(d) has become a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and has, since having ceased to be a citizen and become a permanent resident, resided in Canada for at least one year immediately preceding the date of the application.

Measures to Deal with Past RevocationChildren born in Canada to parents who renounced their Canadian citizenship should not have to go through the permanent resident process and rather should be able to be granted citizenship directly.

S. 11 Exception:(1.1) The requirement set out in paragraph (1)(d) does not apply to a person who ceased to be a citizen, before February 15, 1977, because a parent of that person ceased to be a citizen as a result of

(a) acquiring the nationality or citizenship of a country other than Canada; or(b) renouncing his or her Canadian citizenship.

MinorsThere are a number of things that minors are unable to do as citizens:

A minor citizen may not sponsor his/her non-citizen parent expect sponsors to be able to look after those they sponsorA minor citizen may have to leave the country with a parent

Charter concerns? see LangnerNote difference between:

The parent making a personal choice to leave the country might be problematic for the child to assert citizenship right to remain in Canada against the parents wishes, vs.

Where the parent is subject to a deportation order and the child will be forced to go with them, absent any choice on the part of the parent!

Langner v. Canada (MoE&I) 1995 FCA, SCC refuse leave to appealFacts: government wanted to deport Polish nationals who had CDN children Argued: this violated the s. 7 rights of kidsHeld: Charter was not engaged because no government action involved (!!!)Reasons: Decision of parents to leave & go to Poland w/out kids or to go w/ kids is a personal decision, not government action

Prof: Specious reasoningKeep this in mind when thinking about whether Charter will be engaged

POINT: Sent message that FCA was not at all interested in Charter arguments

International human right concerns?Note that the “best interests of the child” principle is not identified as a principle of fundamental justice – Foundation for Children and Families CaseBaker: if the non-citizen parent is being deported, may make an application to stay based on humanitarian and compassionate grounds if there are children are involved, the best interests of the child must be taken into account.

Not a right for the child to stay in Canada, but rather a discretionary consideration

Constitutional Rights of CitizensSection 3 of the Charter gives citizens the right to voteDoes it exclude permanent residents from this right? Argument has not really been made.

Although they are not specifically excluded from voting, cannot vote in practice

Section 6 of the Charter gives citizens mobility rights:“Every citizen of Canada has the right to enter, remain in and leave Canada.”Again, permanent residents are not specifically excluded from this right

PassportsCitizens are not entitled to passports not a right!

See Passport OrderAuthorized through Royal Prerogative, rather than through legislative authority.

See Khadr refusal of passportPermanent Resident card identity card valid for five years

Immigration, Refugee Protection and the ConstitutionConstitution Act, 1867

Section 95: grants concurrent power to the federal government and the provinces in relation to immigrationSection 91(25): grants authority to the federal government over naturalization and aliens

Canada Quebec AccordGoes further than any other agreement regarding division of powers over immigration

S. 7: ratio dependant on the size of the populationQuebec should receive the same percentage of the total number of immigrants admitted to Canada as is its percentage of the Canadian population, with the right to exceed this figure by 5%, for demographic reasons. 

S. 8: percentage of humanitarian class immigrantsOut of the total number of refugees received by Canada, a percentage at least equal to the percentage of immigrants that it has undertaken to receive.

S. 12(a): Quebec has sole responsibility for selection of Quebec immigrants

But s. 13 states that Canada has sole responsibility for family reunification

Family class applicants must be sponsored by a permanent resident or citizen of Canada.

S: 17: Canada shall decide who is a refugee (in relation to international obligations)S. 27: Canada deals with citizenship

The CharterDoes the Charter apply outside of Canada to decisions being made by immigration officers outside of Canada?

Concern by the government that this could interfere with international law But in relation to immigration decision, not likely to interfere with the sovereignty of other nationsA live issue: most recent SCC case is Hape dealing with criminal law and search and seizure

IRPA S. 3(3)(d) suggests that as a matter of statutory interpretation, the Charter should be appliedS. 3(3): This Act is to be construed and applied in a manner that

(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;(f) complies with international human rights instruments to which Canada is signatory.

What’s the difference between having them apply as the Charter or as a matter of interpretation?

If there is a clear violation of human rights, then there is no way to apply the Act in a way that is consistent with the Charter a rule of construction has very little weight in these circumstances.Liberal interpreters of the IRPA could say that the Act should be interpreted in accordance with the Charter.

Equality Rights – s. 15It’s clear that the constitution draws a distinction between citizens and non-citizens. As long as this is so, you cannot use the equality provision to challenge immigration processes.

Courts (and lawyers) have tended to bypass equality issues in relation to those outside the country. In Hilewitz the leading case on medical inadmissibly there is no discussion of equality rights

Shy away entirely from the possibility of equality arising as an issue.In Chesters, a Federal court decision, there is a scandalously poor application of the Law criteriaIn Charkaoui, there is passing reference to equality rights, suggesting that s. 15 cannot be applied to the immigration process.

Cannot base an argument against the immigration process on s. 15 When distinguishing between citizens and immigrants, s. 15 will not be engaged because the constitution also recognizes the distinction between citizens and permanent residents not antithetical to equality to draw this distinction.

BUT unstable distinction : immigration is not just a matter of entry and departure, but rather for setting up the conditions for remaining the country. If it’s about staying, then will be next to impossible to distinguish immigration from other fields such as anti-terrorism When dealing with non-citizens, every issue is an immigration issue!

In Lavoie, differentiation between citizens and permanent residents in relation to employment breaches s. 15 but is justifiable under s. 1.

Lavoie v. Canada (2002) (SCC) Facts: Several foreign nationals applied to the federal government for employment. Section s. 16(4)(c) of the Public Service Employment Act (PSEA) which gave preference to citizens when allocating applicants to different departments. The foreign nationals applied to the Federal Court to strike out the provision.

The Federal Court held that the provision violated section 15 but was saved by section 1. The Federal Court of Appeal upheld the decision

Issue: Whether preference on basis of citizenship infringed equality guarantee under section 15(1) of the Charter.

Arguments:

In the federal court, two expert witnesses (political scientists) testified on the nature of sovereignty

Government expert was an American with no ties to CanadaOther expert was a permanent resident!

Government perspective: need to distinguish between citizenship and permanent residents because we want citizenship to be something to aspire to (commitment, loyalty, etc.) we want people to have an incentive to become citizens.Foreign national perspective: one of the factors that defines Canada is our commitment to principles of equality valuing citizenship above equality would tend to destabilize our underlying values.

Held: The federal PSEA , which gave preference to citizens when referring to departments, was discriminatory. The violation was saved under section 1 of the Charter as a reasonable limitation on equality rights.

Law TestAs first outlined in Law v. Canada, discrimination can be identified through a three-step test.

1. Did the law, program, or activity impose differential treatment between the claimant and a comparator group? That is, was a distinction created between the groups in purpose or effect?

2. If so, was the differential treatment based on enumerated or analogous grounds?

3. If so, did the law in question have a purpose or effect that is discriminatory within the meaning of the equality guarantee?

Reasons (Bastarche): In his application of the Law test for section 15, he noted that by creating the distinction between citizen and foreign national the legislature was placing an additional burden on already disadvantaged group.

It is well settled that foreign nationals are a group that do suffer from stereotypes, marginalization, and historical disadvantage, but the Act does not attempt to compensate for this.Permanent residents have suffered as a group and to continue to treat them badly is to continue this marginalization.

If the constitution says that citizens have particular rights and permanent residents don’t, than those particular distinctions are immune from Charter challenge.

Permanent residents are treated with respect, but with certain exceptions – constitution grants citizens certain distinctions and are immune from challenge

Here, considers permanent resident status to be a person characteristic! Galloway: there is something odd about using citizenship/permanent resident status as a criterion for discrimination. Although most personal characteristics such as race, religion, language are inherent or a matter of personal choice, citizenship/permanent resident status is created by the legislature!

Dignity: the denial of professional development impacted a significant element of the fundamental right of choice.

Bastarache spent some time considering the element of "dignity" introduced in Law v. Canada.Although we a dealing with a very minor distinction (preference for employment), its sufficiently great to say that the equality rights of the individuals have been violated. The distinction being made here impacts the subjective feeling of permanent residents – made to feel less worthy than citizens.

Dignity inquiry requires that the subjective view of the claimant be rationally grounded in circumstances that a reasonable would share that experience. Make this decision by taking into account both the subjective feelings of the individual and how they would be assessed by an objective reasonable personal.

“In this case, the claimants submit that a reasonable person similarly situated would believe that the reduced opportunity of working in the federal Public Service fails to account for their individual capacities and, moreover, implies they are less loyal and worthy of trust.

This is a stereotype that they are less loyal than citizens are attacking the idea of making people go through the loyalty oath?Galloway: strongest factor to justify the courts position is to recognize that permanent residents don’t have the right to vote no access to democratic institutions = source of the problems with dignity. Therefore need to scrutinize any small aspect that might further impact on this dignity.

Section 1 Analysis – Very Shallow! On the section 1 analysis Bastarache considered the positive goals of the provision. He saw merit in having a law that encouraged naturalization and increased the value of citizenship.

Pressing and substantial objective: to enhance meaning of citizenship as a unifying symbol AND to encourage permanent residents to naturalize = policy respectful of cultural and linguistic differences

Plus government right to define rights and privileges: privileging citizens is one of the roles of government substantial purpose for promoting citizenship.

Rationally connected to objective: indicated by common sense and widespread international practice + policy seems to work since high proportion of immigrants naturalize

Minimal impairment: features make less intrusive, government considered other options and rejected them.

Canada is already quite generous to non-citizens – allow them to retain previous citizenship while still accessing most of Canadian society. Does not burden non-citizens with the choice. Therefore, this is a minimal impairment. Galloway: Both of the applicants in this case were in a position where

although they were not required to give up their second citizenship under Canadian law, the laws of their home countries stipulated that they would lose that citizenship if they took out Canadian citizenship.

Although not an action of the Canadian government, the effect on the applicants is the same if they take out Canadian citizenship, they will lose their other citizenship

Final balancing: do infringing effects outweigh objective? No, because not much infringement b/c internal hiring policies make hard for even citizens to get jobsThe negative impact of the exclusion was sufficiently small to warrant justification by the valuable objective.

De Guzman v. Canada (2005) (FCA)Facts: Claim from a social assistant recipient that she was being discriminated against because she cannot sponsor her family members.

Provision in IRPA holds that you cannot sponsor a family member is you are receiving social assistance

Held: Appeal dismissed. Ultimately it seems that the existence of s. 25 of IRPA leads court to hold that there is no discrimination.

Note: the receipt of social assistance is not a personal characteristicHowever, being a permanent resident is! What’s the difference?

Sense that people are responsible for their economic well-being and should be able to pull themselves out of it – not a permanent aspect of their being, but rater something tat they have some control over

IRPA s. 25: The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.

Must balance goals of society with the interests of individuals. Rationale behind not allowing persons on social assistance to sponsor family members: if they are a burden on the state, likely that those they are trying to bring in will also become a burden on the stateCounter: A rule which says that you cannot sponsor if you are on social assistance may in fact be over inclusive:

May be on social assistance because they are single, have no support. Maybe allowing them to bring family members into the country will improve their support structure so that they can get off of social assistance.

But in the end, the court doesn’t believe there is discrimination because s. 25 allows for family members to be sponsored in exceptional circumstances – may make an application on humanitarian and compassionate grounds

Galloway: Seems to suggest that s. 25 actually grants enough people compassionate leave but the reality is that very few people succeed under s. 25!

If it is regarded as exceptional, strange to say that the law survives the equality challenge just because there is an exceptional bureaucratic discretion. Bureaucrats are making the decision, not the courts!

Section 7 RightsPreliminary issue: is section 7 engaged?

A basic approach to the engagement of section 7 is cited in Medovarski v. Canada (2005) (SCC)

Holds that the act of deportation alone is not sufficient to engage s. 7, but if the act of removal will also affect a persons interest in another way, this may be grounds to engage s. 7.

In Canada v. Chiarelli (1992) (SCC), the court does not answer the question of whether section 7 is engaged by the simple act of removing a person from the country

Simply states that if a removal order does infringe or deny the rights guaranteed by s.   7 of the Charter , are they justified by s.   1 of the Charter …the Charter recognizes the distinction between citizens and non-citizens.  While permanent residents are given the right to move to, take up residence in, and pursue the gaining of a livelihood in any province…, only citizens are accorded the right "to enter, remain in and leave Canada"...  Parliament therefore has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. 

Another important focus has been on the distance between the government decision in question and the feared consequence. The discussion in Nguyen.

Nguyen v. Canada (2001) (FCA) Facts: refugee claimant is told at an early stage that he is ineligible to have his claim heard by the IRB. This increased his chances of deportation.Argument: Although his deportation is not in the near future, argues that at this point must decide if their has been a sufficiently abusive decision that has been madeHeld: Section 7 only becomes engaged at the last possible moment of the removal process mere finding of ineligibility is insufficient to say that their liberty/security at risk.

Must wait until it is much more likely that they will be deported many different processes may still be engaged to prevent deportation.

Nguyen’s claim to a constitutional right being violated was premature. All that had happened so far was a rule that he was not eligible for the quasi-judicial IRB claim.

Singh v. Minister of Employment and Immigration (1985) (SCC) Facts: Seven foreign nationals challenged the adjudication procedures under the Immigration Act on the basis that it violated section 7 of the Canadian Charter of Rights and Freedoms and violated section 2(e) of the Canadian Bill of Rights. Under the earlier regime (now replaced by the IRB) it was possible to receive a negative refugee decision without being accorded an oral hearing.

The government claimed that since they had no status within the country they were not subject to the Charter.

Held: The claimants’ rights had been infringed.

Wilson: Court found that the seven foreign nationals were protected by the Charter and their rights had been violated.

Wrote the decision based on section 7 rights to security of person and fundamental justice.

“Where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.”

Prior to the IRB, the administrative process allowed people to be sidelined without proper consideration. S. 7 recognizes that when serious rights are at stake (facing persecution) and where there are serious credibility issues (as is the nature of refugee claims), fundamental justice requires that there be an oral hearing.

Logic: Assuming that the person making the claim is a convention refugee, would their life, liberty or security be at stake if they were removed from the country?

Doesn’t matter how many false claims there are, as long as there is a possibility of a truthful claim, must grant the oral hearing to make this determination.

Not justified under s. 1:Found that the government's claim that giving hearing to refugees would be burdensome (in terms of time and cost) was too much of an administrative concern to justify infringing a Charter right.

Need a stronger argument no deference to the legislature purely for fiscal reasons.

Beetz: The second half of the Court also found in favour of the rights claimants, but through section 2(e) of the Bill of Rights.

Beetz noted that section 26 of the Charter states that rights outside the Charter are not invalid, and hence the Bill of Rights still has a role to play in Canadian law. Beetz went on to find that in this case, refugees had been denied hearings, and thus their section 2(e) rights to fair hearings and fundamental justice were infringed.

Aftermath: IRB was set up because of the holding that s. 7 require an oral hearing when serious matters of credibility are at stake!

Note that the decision of the Supreme Court did not expressly mandate the creation of the IRB merely stated that the government needed to address the concern over oral hearings IRB was the response to this concernUnderlying this decision is that you cannot communicate important matters in writing – something very important about the oral presentation. Oral words more powerful than written words.

Canada (Minister of Employment and Immigration) v. Chiarelli (1992) (SCC) Facts: Joseph (Giuseppe) Chiarelli was born in Italy in 1960 and arrived in Canada in 1975. In November of 1984 he pleaded guilty to unlawfully uttering threats to cause injury and to possession of narcotics for purpose of trafficking. He served six months in prison. In 1986 he was called to a hearing based on his violation of his permanent residency status for his previous convictions.

Issue: Challenged provisions re removal of a permanent resident for criminality and Minister’s certificate on ss. 7, 12 and 15 of the Charter

Two parts to this decision:One part considers the use of secret evidence the legitimacy of the former process (using SIRC, the watchdog of CSIS)The other focuses on the fact that the decision against Chiarelli is seemingly automatic argument that the case should not be decided solely on the application of the rule without having regard to all the facts

It is the automatic nature of the process that is seen as the problem consequence for Chiarelli is quite severe

Argument: Provisions of removal are contrary to principles of fundamental justice because they are mandatory and require that deportation be ordered without regard to the circumstances of the offence or the offender.

Chiarelli: “My status in the country should be decided by hearing all the facts. It should not be decided solely on the application of a rule, without consideration of mitigating factors. In other less serious and non-criminal cases there was an appeal to the IAD who had the option of exercising “equitable jurisdiction” Chiarelli’s argument is not so much that he has a right to an appeal, but that you can’t throw him out without hearing his full story Canada owes him something as a human being to hear his story

Held (Sopinka for a unanimous court): The court held that the deportation a permanent resident who has violated a condition of admission to Canada does not violate any principle of fundamental justice under section 7 of the Charter.

Deportation provisions did not offend s. 7The granting of permanent resident status was contractual in nature between the applicant and the state. "The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country". Consequently, the state has the right to grant the privilege of enter, work, and access services of the country, and may grant them in exchange for conditions.

Finds that there is nothing unjust about a mandatory order.If you fail to adhere to the conditions of staying in Canada, then you may be removed from the country. Obligation on the permanent resident to know their status and the conditions under which they are allowed to remain in the country

Deporting permanent residents convicted of a serious crime represents a legitimate, non-arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non-citizen to remain in the countryIf a permanent resident deliberately violates condition of remaining in the country, there is no breach of FJ in terminating right to remain through deportation

Deportation does not offend s. 12: (cruel & unusual punishment or treatment)

Important to note that removal from the country is not punishment – not like imprisonment. Rather, a distinct administrative process. Draws a distinction between the criminal process and the removal process

No violation of s. 15: s. 6 contemplates different treatment

Sopinka Leaves open the question of whether s. 7 is engaged:Instead, identifies the fundamental principle of immigration law: People don’t have an unqualified right to remain in the country unless they are citizensThis fundamental principle is key to determining what is fundamentally just.

Argues that if we didn’t have this principle, Canada would become a “haven for criminals”

Aftermath: In criminal law, when judges are sentencing people who are subject to the IRPA, they will take into account if they will be deported based on the their sentence – may reduce the sentence below 2 years.

IRPA s. 64(2): automatically excluded if you are a serious criminal determined if you have a sentence of more than two years. Will only result in a marginal reduction, probably not more than a few months

Suresh v. Canada (Minister of Citizenship and Immigration) (2002) (SCC)Facts: Suresh, a Convention refugee from Sri Lanka, applied for immigrant status in Canada. In 1995, the government rejected his application and ordered that he be deported on the basis that he was a security risk. The Canadian Security Intelligence Service (CSIS) had claimed that he was a supporter and fundraiser for the Liberation Tigers of Tamil Eelam, an alleged terrorist group in Sri Lanka.

The Federal Court of Canada upheld the deportation order. Following this the Minister of Citizenship and Immigration issued an opinion that declared him a danger to the security of Canada under section 53(1)(b) of the Immigration Act and consequently should be deported. Suresh had presented written and documentary evidence to the Minister, however, he did not have the chance to get a copy of the memorandum of the immigration officer and did not get a chance to respond to it.

Under the old Immigration Act: allows the Minister in exceptional cases to order the removal of a person to a country where their life or freedom would be threatenedCourt determines this is not unconstitutional

Issue: Challenged the Immigration Act on the grounds that it violated his s. 7 rights (and s. 2(b) and 2(d) rights)

Argument: If there is a chance that he is going to be sent back to Sri Lanka to face torture, the Canadian government would then be implicated in his torture and that would be contrary to the principles of fundamental justice

Held (unanimous): The Court held that under the Charter, in most circumstances the government cannot deport someone to a country where they risk being tortured, however, it was ruled that refugee claimants can be deported to their homelands if they are a serious security risk to Canadian society.

Section 7:It was held that deportation to a country where there is a risk of torture deprives the refugee of their right to liberty and security of person. The primary issue was whether the deprivation was in accordance with the principles of fundamental justice.

Fundamental justice?The Court identified fundamental justice to be "the basic tenets of our legal system", and are determined by a contextual approach that considers the "nature of the decision to be made".

Here, the Court must balance between the government's interests in preventing terrorism and the refugee's interest in protection from torture.

TEST: whether the deprivation would "shock the Canadian conscience" That is, whether "the conduct fundamentally unacceptable to our notions of fair practice and justice". Developed in Burns & Raffey extradition case deporting someone to the US to face the death penalty shocked the Canadian conscience

The Court finds that deportation of a refugee who risks torture is unacceptable.

Torture is incompatible with justice it is fundamentally unjust

Result: In conclusion, the Court finds that the deportation order given by the Minister to be unconstitutional but the provisions of the Immigration Act are constitutional.

In relation to deporting someone to face torture “never say never”: the appropriate approach is essentially one of balancing

Don’t want to simply declare unconstitutional because there may be exceptional circumstances where the threat to Canadian security would outweigh the interests of the individualOtherwise, we might become a “safe haven for terrorists”

Balance will usually come down against expelling a person to face torture balance usually comes down in favour of the individual

Jaballah: balance cannot come down in favour of the state in this case

Comment (Galloway): shocks the conscience test appears to be very different from other s. 7 / fundamental justice tests – appears to be easier.

Court is attempting to say categorically, “let’s make a decision one way or the other.” In other tests, actually need to identify the principles of fundamental justice at stake.In most circumstances, the law should not be applied but we will leave it in place in case of exceptional circumstances.

Not declared unconstitutional because of the possibility of exceptional casesGoing back to Chiarelli, may be able to argue for a constitutional exemption use the logic in the Suresh case for people Chiarelli’s position

Procedural Rights in Suresh Common law rules of procedural fairness should inform s. 7

Full oral hearing unnecessary when Minister is deciding whether to return a person, but they must know the case to be met

Don’t need the quasi-judicial, full oral hearing, but must know what evidence they should submit to meet the case.

S. 1 of the Charter does not apply because a valid purpose does not override the requirement of fairness.

Aftermath: The new provision is IRPA s. 115(2), which is even broader than the former Act:

As well as allowing the Minster to balance the danger to the individual against the danger to Canada, may also exercise discretion on the basis of the nature and severity of the Acts that the wrongdoer engaged in.

115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

Exceptions(2) Subsection (1) does not apply in the case of a person:

(a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or(b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.

Charkaoui v. Canada (Minister of Citizenship and Immigration) (2007) (SCC)Facts: In 2003, Adil Charkaoui, a permanent resident in Canada since 1995, was arrested and imprisoned under a security certificate. The evidence upon which the certificate was issued is secret, disclosed neither to Charkaoui nor his lawyers.

Public summaries of the evidence issued by the Federal Court alleged a connection with "the bin Laden network". Charkaoui appealed his detention three times before being released on the fourth try in February 2005, having spent almost two years in Rivière des prairies prison in Montreal. He was released under severely restrictive bail conditions.

Charkaoui has never been charged or tried. The certificate against Charkaoui has never undergone any judicial review; the Federal Court suspended its review process in March 2005.

Issue: the constitutionality of procedures for determining the reasonableness of a security certificate and for reviewing detention under a certificate.

Held (McLachlin for a unanimous court): The security certificate process, which prohibited the named individual from examining evidence used to issue the certificate, violated the right to liberty under section 7, 9 and 10 of the Charter.

The Court however rejected the appellant arguments that the extension of detentions violated the right against indefinite detention, that the differential treatment violated equality rights, and that the detention violated the rule of law.

As remedy, the Court declared the "judicial confirmation of certificates and review of detention" to be of no force and effect, striking down articles 33 and 77 to 85 of the Immigration and Refugee Protection Act, but suspended the ruling for one year.

Medovarski clarified that s. 7 is engaged where there is detention or the prospect of deportation to torture

“Medovarski thus does not stand for the proposition that proceedings related to deportation in the immigration context are immune from s. 7 scrutiny.  While the deportation of a non-citizen in the immigration context may not in itself engage s. 7 of the Charter, some features associated with deportation, such as detention in the course of the certificate process or the prospect of deportation to torture, may do so.”  

Distinction between balancing at s. 7 and balancing at s. 1The question at the s. 7 stage is whether the process is fundamentally unfair to the affected person. If so, the deprivation of life, liberty or security of the person simply does not conform to the principles of fundamental justice. 

The fact that we are dealing with security threats, this will be taken into account when determining what is fair. Notions of fairness will always be malleable depending on the context balancing going on at the s. 7 level.

The inquiry then shifts to s. 1 of the Charter, at which point the government has an opportunity to establish that the flawed process is nevertheless justified having regard, notably, to the public interest.

Once we’ve determined what is fair (under s. 7), under section 1 will determine if this identified fairness can be outweighed by our social concerns

“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.” 

Fairness be informed by the context, but cannot be defined by the context security concerns do not automatically allow us to be unfair.

Three principles of fundamental justice:Is the judge independent and impartial? YesDoes the judge make a decision based on the facts and law? No

Restrictions of secret evidence, without the individual being able respond to it, means that not all of the evidence is avalaible

Has the person had the opportunity to meet the case against them? No

No, because of the secret evidence can’t respond to all of it.

Section 7 is violated: Gone to far since two of the principles of fundamental justice are not being met Therefore, must be saved under s. 1 to be constitutional

Section 1 AnalysisCourt held that the certificate process was not minimally impairing. The Court cited a clearance system used elsewhere in the world that would designate certain lawyers to view the evidence on behalf of the accused special advocates. Because there are alternative ways that the secret evidence could be dealt with, much more attention could be paid to the interests of the individual therefore, not minimally impairing since other options available

Aftermath: Parliament has now established legislation that recognizes that there is a section 7 problem and they are trying to reduce this impairment by instituting a system of special advocates.

1951 Convention on the Status of RefugeesThe United Nations Convention Relating to the Status of Refugees is an international convention that defines who is a refugee, and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The convention also sets out which people do not qualify as refugees, such as war criminals.

The convention was approved at a special United Nations conference on 28 July 1951. It was initially limited to protecting European refugees after World War II but a 1967 Protocol removed the geographical and time limits, expanding the Convention's scope.Today, 147 countries have signed the convention many of the countries that have not signed on believe that this is not an adequate process.

PreambleThere is a humanitarian basis to refugee law, and places refugee law firmly within the sphere of international law

The High Contracting Parties,Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination,Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms,Considering that it is desirable to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and the protection accorded by such instruments by means of a new agreement,Considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international- scope and nature cannot therefore be achieved without international co-operation,

Recognize that some countries bear most of the costs of refugees and cannot deal with the issue without international cooperationRecognition that this is a global social problem

Expressing the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States,

Telling one country that you don’t appreciate the way they are treating their citizens could be contentious fact that one country is granting humanitarian assistance ought not to be regarded as implicating the actions of the other governmentShould not be seen to be judging the foreign government

Noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner,

Recognizes the important role played by the United Nation High Commission for Refugees.

Article 31: Refugees unlawfully in the country of refugeCannot punish people for coming to your country illegally if they are refugees (e.g. false documentation)

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves

without delay to the authorities and show good cause for their illegal entry or presence.

Article 33: Prohibition of expulsion or return ("refoulement")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.

EXCEPTION: The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

Definition of a RefugeeA 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 opinionIs outside each of their countries of nationality (or country of former habitual residence)

Cannot be a refugee if you are still within the country where you are being persecutedHowever, there is a growing recognition that there may be a need to protect people who are internally displaced within a country – in the future, may be a refugee even without crossing a national boundary

And is unable or by reason of that fear unwilling to avail themselves of the protection of each of these countries.

PreliminariesAfter making a refugee claim, the claimant has 28 days to submit a Personal Information Form.

When making a refugee claim at a port of entry, you will be subjected to an interview by an immigration officer. Notes taken during this interview will be submitted to the Immigration and Refugee Board. Interview notes from original interview may be used at hearing If any of the information given at this initial interview conflicts with the information provided in the personal information form, this may be damaging to credibility and to your claim

Screening FormScreening Form will be sent by the Refugee Protection Division member (see screening form handout)

Screening form used to narrow the refugee claim Hearing should be limited to issues cited as material.

Identifies what the focus of the hearing is likely to beRecognizes the elements that are important for the definition of a refugee under IRPA s. 97

Convention RefugeeRisk to LifeDanger of Torture

Specify if minor, detainee or gender-based claim: Priority is given to claims by minors or women, or for sexual orientationDisclosure of evidence: country, condition, materials

Onus of proof on claimant: balance of probabilities

May delay the hearing if there is a need to get more information about the refugee claim – may send an Information Request

National Documentation Packages: provide information on the home country of refugee claimants which will help to prove (or disprove) the basis of their claim.

Exclusion ClausesWhen it is suggested on a screening form that an exclusion clause is in play, the Minister enters the scene and the process changes entirely. If the person ought to be excluded, then the process becomes very adversarial and Canada probably doesn’t want to grant this person admission.

Credibility – nearly always a factor is a refugee claim!Personal Information Form is signed and sworn to by the claimant has the same impact as sworn testimony

Any statement that has been sought by the RPD will be dealing with sworn evidence

Maldonado presumption : a member of the RPD cannot distrust the evidence provided, unless there is a reason to doubt sworn evidence (presumption that the sworn testimony is the truth)

If there is some contradictory evidence, there are different standards as to the weight that should be given to this evidence

Lack of documentation:IRPA s. 106: The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.

Canada (Attorney General) v. Ward (1993) (SCC) Significance: Major case which helped frame refugee law court developed a test for determining a "well-founded fear of persecution" in order to make a claim for Convention refugee status.Facts: Patrick Ward was a member of the Irish National Liberation Army (a violent offshoot of the IRA). He was assigned to guard some hostages and when they were ordered to be killed he allowed them to escape. The INLA discovered that Ward has assisted in the escape from the police. They tortured him and sentenced him to death. He escaped and went to the police who discovered his involvement in the initial kidnapping so sent him to jail. Upon his release he escaped to Canada and claimed refugee status. His claim was initially rejected and was sent back for

redetermination on appeal. The refugee determination board found he was a refugee, on appeal to the Federal Court of Canada the claim was rejected. Ward appealed to the Supreme Court of Canada.

Ward is not fleeing persecution from a foreign government, but rather from an non-governmental force within another countryWard is not afraid of the Irish government, but the fact that the Irish government told him that they cannot protect him.

Held (La Forest): The Court held that persecution need not originate from the state, and that mere inability to provide protection is sufficient to establish a claim for persecution.

State complicity in persecution not necessary Underlying rational of the convention was originally to offer protection to individuals who were being persecuted by states now expanded to include when states cannot adequately protect their citizens from other forces of persecution

Really opens up a Pandora’s box: how much protection do we assume that states have an obligation to give?

Simple to say that states ought not to be persecuting their citizensBut to say that state complicity is not necessary, then there are huge questions about what kind of protection we expect the state to provide (dependant on the resources, economy, structure, stability, etc. of the country)

La Forest tries to resolve this by introducing two presumptions:Persecution will be likely in the absence of state protectionNations should be presumed capable of protecting their citizens (unless complete breakdown of state apparatus)

The claimant is required to provide “clear and convincing” evidence that the state is unable to offer protection

However, individuals need not seek state protection where it is likely ineffective A person who is facing persecution doesn’t have to remain in a country and seek state protection if it is clear that the state is unable to offer that protection.

E.g. if you fear a connection between the police and a criminal gang, you do not need to first go to the police.

Elements of the Refugee ClaimDefinition of a refugee: “A person who by reason of a well-founded fear of persecution…”

FearScreening Form under “subjective component”Not necessarily actual fear, but rather reasoned apprehension Reasoned grounds for belief that persecution will happen in the future

Not based on bad things having happened to you in the past, but that things are likely to happen in the future – forward looking

Problem: Where individuals have suffered terrible persecution in the past, doesn’t necessarily mean that they will face persecution in the future – downside of forward looking focus

E.g. female genital mutilation – not likely to face persecution in the future because the action is clearly finished Given that the harm has been achieved, there is not grounds to believe that there will be further persecutionHowever, general view is that if you have suffered persecution in the past, this increases the likelihood that you will face persecution in the future, even if persecution of another type

Factors influencing the perception of fear (not determinative):Delay in making a refugee claim: If you come to Canada and fail to make a claim immediately, this may have a negative impact on their claim assumption that people with true fear will likely make a claim right awayNot making a refugee claim in the first available country: assumption that if your being picky about where you make your claim, the fear is less strong

However, some factors are more determinative of fear of persecution: Re-availment (making a claim, then going back to your country of origin, then coming to Canada) does have a strong negative impact: if you’ve reavailed yourself to the country of persecution, need a very strong reason to show that you are in fact afraid of persecution

E.g. only went back to try and save a family memberMaking a claim in another country and being turned down is also likely a negative factor – need to show that the claim in the other country was insufficient in some way

Well-founded Well-foundedness = likelihood that the claimant will face persecution in

the future – making a judgment about what might happen in the future The Adjei test: “good grounds” or “reasonable chance” or “serious possibility” that the claimant will be persecuted

Difficult aspect is the connection between the standard of proof (balance of probabilities) and well-foundedneess. Discussed in Carrillo:

The burden of proof lies on claimants to show that they meet the definition of a refugee. To do so, they must prove that they actually fear persecution and that their fear is "well-founded". To establish a well-founded fear, refugee claimants must show that there is a "reasonable chance", a "serious possibility" or "more than a mere possibility" that they will be persecuted if returned to their country of nationality (Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, F.C.J. No. 67 (C.A.) (QL)). In respect of particular underlying facts, the claimant shoulders a burden of proof on the balance of probabilities (Adjei, above, at para. 5).

Claimant may have to introduce evidence of what has happened to them or to similarly situated persons in the past in order to help establish the

well-foundedness of their fear of future persecution. Evidence about past events must be established on a balance of probabilities.

State ProtectionWard is really about offering substitute protection As a result of Ward analysis of State Complicity, the notion of “well-foundedness” has become split into a number of factors identified in the screening form as Agents of Persecution, State or de facto Protection and Internal Flight Alternative.

Prior to Ward, there was a distinction drawn between being “unwilling” and being “unable” to seek protection.Ward held the distinction is irrelevant the central focus is well-foundedness of the fear

General Rule: When state complicity is not an issue, a claimant is expected to seek State Protection.

Clear and convincing evidence required that the individual sought state protection.

Even where there is state complicity, there may be a need to seek protection

However, where there is a complete breakdown of state authority, no need to seek state protectionMore difficult where the state is clearly complicit in the persecution, or the state is ineffective in offering protection, and the claimant may fear further persecution if they seek protection from the complicit government

Consider the range of cases:Persecution is a state policy Government persecution is rampant Government persecution is localized State official have been known to work with persecutorsState officials do nothing in response to persecutionState does not have sufficient resources or infrastructure to control persecutorsState is in an all out battle against persecutors but in not successfulBreak down of state authority

In the end, there are no definite criteria in defining what adequate protection is. Two lines of though:

Are best efforts enough?State simply needs to offer protection to the best of its ability, even of these best efforts are insufficient to offer true protection can’t expect complete protection

Sufficient to negate a well-founded fear? (more popular line of thought)Protection is only adequate is the persecuted individual can overcome their well-founded fear

How much effort must be made by the claimant?Can only get refugee protection if you either sought state protection or if it would have been objectively unreasonable to do soWard Test: the claimant will not meet the definition of a refugee where it is objectively unreasonable not to have sought protection of state authorities

If the persecution is localized, very difficult to determine how far up the chain of authority the claimant should have gone to seek protection

OVERALL: Not just a subjective fear of persecution must be a well-founded fear of a serious possibility of persecution based on clear and convincing evidence, establishing that it would be objectively unreasonable to seek state protection.

Carrillo: existence of democratic institutions is important guide Where there is a true democracy, then there is a much higher expectation on the claimant to seek protection from the stateAssumption that if you meet with state corruption in a democracy, there are more internal protections that you are expected to exhaust

E.g. much more difficult for an American to make a refugee claim

Hinzman v. Canada (2005) (IRB) – SCC refused to hear in 2007Facts: Hinzman joined the military early in 2001. Along with his wife, Nga Nguyen, he began attending meetings of the Religious Society of Friends in January 2002. His newfound pacifist beliefs and the birth of his son, Liam, in May 2002, were among the reasons he cited for applying for conscientious objector status in August 2002. His unit was deployed to take part in the war in Afghanistan later in 2002. Hinzman fulfilled a non-combat role there while his conscientious objector application was being processed. It was ultimately denied, and he then returned to his regular unit. When his unit received orders to join in the Iraq War, Hinzman deserted, crossing the border into Canada with his wife and son.

If he is deported, he faces court martial in the US and up to five years in prison.

Issue: Does a conscientious objector who makes his decision to desert because he believes that the war is illegal, amount to grounds for refugee status?

Arguments: A major argument made by Hinzman is that the war in Iraq constituted a violation of international law, and that the subsequent occupation violated international human rights.

Held: Court held that the questions of the illegality of the war was irrelevant in determining Hinzman’s refugee claim. Further, the court held that he was not a conscientious objector and was thus ineligible for refugee status.

Hinzman does not have a well-founded fear of persecution as required in Ward because he comes from a democracy there are many avenues for him to pursue his cause within the US. He was unable to show that he had made a sufficient effort to seek protection in the US.

If there is no state protection available? - Arguably irrelevant

What if you could buy protection, or seek protection from an NGO?In Ward, the court is talking about STATE protection. Therefore, availability of non-state protection is likely irrelevantHowever, screening form talks about state protection or de facto protection. No case law on this issue, but this reference may indicate that there may be an expectation to seek non-state protection where reasonable.

Internal Flight AlternativeRather than fleeing to Canada, considers if it would have been reasonable for the refugee claimant to flee to another area of their country where they would be safe from persecutionTwo part test:

No serious possibility of persecution thereReasonable in all the circumstances for person to go there

Different from the subjective fear of persecution test

Burden of proof on the claimant, but the IRB must warn claimant that Internal Flight Alternative will be raised and identify where

Very strict procedural issues relating to when the IFA argument can be raisedIf the Board in going to identify a IFA, the claimant must be put on noticeAlthough the claimant has the burden of proof that there was no IFA, there board has an obligation to raise the areas that they would identify as safe regions within the country

Many questions open about what factors would be considered under reasonableness - subjective factors are taken into account.

If the area safe from persecution is substantially undesirable for some reason (e.g. no economic opportunities), may be unreasonable to expect the refugee claimant to move to that area and live in abject poverty simply to escape persecution Consider logistics of travel – distance, safety, single woman traveling alone, children, etc.

Change of Circumstances or Sur Place ClaimsChange in circumstances: since the definition or a refugee is forward looking, if you left your country of origin at a time when you truly faced a serious possibility of persecution, but now things have changed (e.g. new government), you may no longer have a well-founded fear of persecution.

However, must be a sufficiently stable change that the fear of persecution won’t rematerialize – requires a serious stabilization of known persecution

Compelling Reasons Doctrine - If you were once a refugee but because of a change you no longer are, you can be sent home unless there are compelling reasons not to do so

IRPA s. 108(4): Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

If this person has suffered persecution or horrendous treatment in the past, although they are no longer a convention refugee, it may nonetheless be improper to return them to a place where they suffered as will be very psychologically difficult

What about manufactured claims?Claim by an individuals who has arrived either illegally or on a tourist visa, but circumstances in their country have changed so that they now fear to return home.

Because the definition is forward looking, doesn’t matter if you didn’t face persecution before if there has been a change in your home country so that you now have a well-founded fear of persecution

More contentious when you voluntarily bring persecution on yourself when outside of your country (e.g. protesting against a home government while in Canada)In some countries if may be illegal to leave the country without proper documentation – the process of coming to Canada will then become a grounds for fear of persecution

PersecutionWhat counts as persecution?

Defined in Ward as “sustained or systemic violation of basic human rights”

Cumulative discrimination or harassment may amount to persecutionAlthough each individual incident might not be that bad in itself

Not just physical harm or imprisonment – there are other matters that are worthy of attention

“Type of harm that would be inconsistent with the basic duty of protection”A floating concept:

How serious is the right in relation to which violation is feared?How serious is the restriction that is feared?How serious is that harm?

Consult: Universal declaration of Human Rights, the International Covenant on Civil and Political Rights and on Economic Social and Cultural RightsEducation: Contrast unavailability of any education with unavailability of university education:

If a child is being denied any education at all then this will count as persecution – there is a basic human right to educationDenying people post-secondary education may not be however, even when done on grounds of gender or race – there is no right to a university education

Employment: If your being blacklisted from professional employment because of discrimination on one of the prohibited grounds, may be persecution

But will be less sympathetic if you could nonetheless be employed in a lesser position

How does persecution differ from prosecution?More difficult when the state prosecutes everyone for a particular offenceHalf proposition: “If you merely fear prosecution under a law of general application then it is not persecution you fear”

If this is a law that applies to everyone, then this is not enough to amount to persecution

But, this is only half truth there are many situations where individuals may be prosecuted under a law of general application, but there is nonetheless persecution beneath the surface

Particular people may nonetheless be singled out by the lawConsequences of prosecution may also point to persecution (i.e. punishment from conviction may be quite brutal)

Therefore: One must look at both the face of the law and its application to

determine whether there are discriminatory/persecutory aspectsMoreover, if the law restricts human rights, the prosecution may amount to persecution (by reason of political opinion)

Conscientious objection to conscription or desertion Objecting to conscripted military service is not generally enough to

ground a refugee claim (although it might if framed in the right way). There is a recognition that many countries have compulsory military service this is not problematic in itself. However, most countries also have alternatives to military service for individuals who don’t want to fight and kill in a war (e.g. work as a medic) have options to respect individual conscience against killing. If a country does not have these alternative devices, may be able to build a case that this violates an individual’s freedom of conscience by forcing them to engage in military service.

However, this wouldn’t work for people who have voluntarily joined the army and then deserted.

Presumption: An ordinary law or general application, even in non- democratic countries, should be given a presumption of validity and neutrality.

The onus is on the claimant to t show that the laws are persecutory. It will not be enough for the claimant to show that a particular regime is

oppressive. The law in question must be persecutory in relation to a Convention ground.

Need to consider the social context of a law in a particular country – although it may appear draconian to Western standards, may nonetheless be a valid rationale underlying the law.

Canada has generally taken a humanitarian-oriented approach on conscientious objection cases and has adopted a nexus analysis which looks to either the intent or the effects of the law requiring military service . The principal case setting forth this approach is Zolfagharkhani v. Canada

Canadian tribunals have consistently applied an interpretation contemplating protection in cases involving objections to military service based on religion or belief.

Zolfagharkhani v. Canada (Minister of Employment and Immigration) (F.C.A.) (1993)Facts: A refugee claim was made by an Iranian who did not want to serve in the military of his country after he learned that the government intended to use chemical warfare against the Kurds required to join the army to fight in a civil war and kill citizens of his own country using illegal chemical weapons.

Held: Zolfagharkani was granted refugee status.The claimant did not merely object to military service, he objected to serving in a military that used chemical weapons (contrary to international law) against its own citizens.

Forcing people to use weapons that are illegal under international law is important to making the determination as to whether they are being persecuted or not

Look at the nature of the activity that the individual is being required to engage in – persecutory for the state to demand that individuals use chemical weaponsHere there is no analysis of the consequences that the claimant will face because of desertion, but only the nature of the act they are being required to perform

Constrast Zolfagharkani with Hinzman: Hinzman attempted to rely on Zolfagharkhani in raising two broad bases for his claim: that:

(1) the U.S. invasion of Iraq constituted an illegal war, and on that fact alone they met the standard, and (2) violations of rules of war were sufficiently pervasive to establish a sufficient likelihood of being directly implicated in activities contrary to basic rules of human conduct.

The court denied Hinzman’s claim rejecting both arguments. It ruled that the illegality of the war could not be called upon as a basis for a “mere foot soldier” and that there was no evidence to show that the “breaches of international humanitarian law that have been committed by American soldiers in Iraq … rise to the level of being either systematic or condoned by the state.”

It relied upon this latter finding to rule that there was insufficient evidence to establish that the military action in which he could be involved would be “condemned by the international community as contrary to basic rules of human conduct.”

Rule: For an ordinary soldier to be persecuted, must be evidence that this particular soldier will be forced to engage in specific illegal activity it is too abstract to reference the general illegality of the war.

Have to show that there is serious risk that they themselves will be required to participate in illegal activity, not in a general illegal war

E.g. if Hinzman would have been required to sexually humiliate prisoners, than he might be able to build a case.

Other Examples of Prosecution Amounting to PersecutionDisproportionate Punishment

If the punishment or treatment under a law of general application is so draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory (Cheung)Cheung v. Canada (1993) (FCA) dealt with a case of forced sterilization in China pursuant of their one child policy.

Held: the court characterized forced sterilization as “a fundamental violation of basic human rights” and “cruel, inhuman and degrading treatment” the punishment for violating the one child policy was so brutal as to be completely disporportianate and therefore amounted to persecution.

It doesn’t matter if its punishment – brutality is brutality.

Regulating DressWithin a cultural context, countries may be permitted to regulate the way in which their citizens dressPenalizing people for wearing particular dress in public is not necessarily persecution. Analysis must focus on what is likely to happen to these people for dressing this way.If there is a penalty put upon an individual for dressing (or failing to dress) in a certain way, there is a need to consider the social context of the requirement. Need to consider:

The nature of the restrictionThe disproportionality of the penaltyThe context of intimidation and harassment

If the restriction is too severe, the penalty too disproportionate, or the restriction is part of a regime intended to intimidate or harass a particular group, then may amount to persecution

Laws may apply to women, but nonetheless be laws of general application

Trumped up charges/procedural defects:Where the criminal process is used for political grounds, it may be persecutory

Rules may be targeted to only one group in society where they were will be subject to adverse treatment

Law may be used in a very discretionary way against a particular group (e.g. against a particular religious or ethnic group)

If this law is being used against a group based on one of the enumerated grounds, this is often persecution

Onus on the claimant to show that the law is being used in a persecutory way, but must be considered within the social context

Punishment that is inherently persecutoryE.g. involuntary sterilization (Cheung)

The Exit Law DilemmaWhere the laws relating to exit or to overstaying overseas have been breached and the consequences are severeIn Valentin v. Canada (Minister of Employment and Immigration) (1991) (FCA), the court held that punishment for illegal exit from country not in itself basis for well-founded fear of persecution, when punishment arises out of law of general application

However, where proper evidentiary basis exists necessary to consider whether excessive or extra-judicial punishment for illegal exit could constitute reasonable basis for well-founded fear of persecution

Not sufficient to claim refugee status just because of the exit laws: people are not facing persecution within their country, but only once they leave

Problematic : need to consider the evidence that people that are sent back will be persecuted by their state difficult to prove.

NexusWhat is means by “for reasons of”?

Do you have to identify the persecutor’s motivations?Not so much subjective intent, but rather structural explanation: e.g. you belong to a group, and this group is being persecuted within the society

Or the state’s reasons for not protection?

Islam and Shah (1999) (England)Facts: Two married Pakistani women who were accused of adultery and subjected to serious physical abuse by their husbands and forced to leave their homes. The applicants asserted that the Pakistani government would be unwilling or unable to offer them protection. Arguments: Claimants argued that the relevant social group for the case should be women accused of transgressing social morals who are unprotected by their husbands or other male relatives.

The UNHCR, an intervener, suggested that they could more broadly be considered in a social group of “individuals who believe in or are perceived to believe in values and standards at odds with the social morals of the society in which they live.”

Two perspectives:There is an objective threat to women who commit adultery. Threat is not based on the fact that they are women not persecution on the basis of gender,

but because of the fact that they are committing adultery. The persecutor is responding to the act of adultery.Other perspective: women in Pakistan are in a much more vulnerable position. Do not react to men committing adultery in the same way. Need to try and find the structural explanation for the persecution.

Held: the social group could appropriately be defined as Pakistani women, although there was also support for the more limited definition urged by the claimants.

The social group cannot be defined solely by the persecutionThe definition of a group is not defeated simply by showing that some members of the group may not be at risk. Rejected the argument that a social group must display cohesiveness in order to be recognized under the Convention. Some disagreement in the court over the definition of the term membership in a particular social group

Some relied on the protected characteristics approach of the Supreme Court in Ward – discrimination based on the five enumerated groundsSome relied on a social perception approach

Grounds of PersecutionREMEMBER: s. 97 is as valid a reason for granting grounds as under s. 96

However, it is very difficult to win on a s. 97 claim!

When is persecution per se insufficient to ground a claim? Important that the definition in IRPA s. 96 is now supplemented by s. 97

S. 96 refugee definition: claimant has to show that they have a well-founded fear of persecution

Linked to a “reasonable chance” or “serious possibility” of this persecution on a number of grounds if they are sent back homeIf there is a nexus to a forbidden ground (5 enumerated grounds), need only to show a well-founded fear of persecution If people are subject to the risk of torture or a risk to their health or

life, then we’re not going to look into the reasons behind that persecution

S. 97: requires substantive grounds for believing that the claimant will face ill treatment or torture.

Claimant an onus on a balance of probabilities to show that the claimant will be singled out by the treatment. When you remove the forbidden ground, we increase your burden: must show on a balance of probabilities that you are being singled out for persecution

However, many questions remain:What is a particular social group?When is an opinion political?What is an opinion is wrongly attributed to you?What if you can escape persecution by living discreetly?Liberal interpretation:

Religion: fairly simple to define a religious belief and identify someone as belonging to a particular religious group - fairly loose definitionSocial group: must more difficult to attribute

Defining a Particular Social GroupIn Ward, the court identified three categories of social groups for the purposes of refugee claims:

Groups defined by unchangeable characteristics (gender, race, sexual orientation) not problematic, easy to identify group membershipGroups whose members associate voluntarily for reasons of fundamental human dignity Groups who held a previous historical status that is now unalterable

E.g. landowners under a previous regimeRarely used

However, in Chan, the Supreme Court rethought the categories that had been identified in Ward.

Chan v. Canada (Minister of Employment and Immigration) (1995) (SCC)

Facts: Appellant sought Convention refugee status because of his fear of being forcibly sterilized for a violation of China's one-child birth control laws. Held: Appeal denied - the appellant did not meet the burden of proof on the objective aspect of the test. A person facing forced sterilization was assumed (without its being decided) to be a member of a particular social group You don’t have to associate with other members of a group to be part of that social group

The difficulty is that it seems that what holds the group together is the fact that they are subject to persecution

Categories from Ward now only a framework to consider and are not binding often fall apart under more difficult categorization

More difficult when you have a group such as workers in a particular industry where membership in a group is not based on association

Dilemma: persecution by reason of membership in a particular group suggests that the reasons for persecution have to be independent from the fact of persecution

Can’t just say that the fact that we are all persecuted as a discrete group is the basis of our membership to a social group have to find something else that links them together

This question is not readily answered, so the dilemma remains.

Islam and Shah: beginning of a solution to this dilemmaRecognition that if the only thing that a social group has in common is the fact that they are persecuted, then this is unlikely to be enough to meet the definition of a refugee.

But if the social group begins to be associated with the reason behind the persecution, then there may be a separate rationale that is tying the group together (something beyond the persecution itself) then this may form the grounds for a refugee claim)

Victims of CrimeBeing a victim of crime is not sufficient in itself to ground a refugee claim:

Crimes tend to be random, so being a victim of one is not necessarily indicate persecution based on social groupCertain groups (e.g. elderly, women) may be more vulnerable to crime, but this will not likely be sufficient to amount to persecution

However, if you are targeted by crime and the state fails to protect you because of your membership in a particular social group, this may be grounds for persecution

FamilyIf one member of a family is a target of crime and the persecutor thus goes after the entire family, there is a reluctance to recognize that they are a member of a social group (the family)This argument has been rejected by the IRB you can’t piggy back a claim on the claim of a single family member, especially if being a victim of crime itself is not sufficient to ground a claim

Discrete Behaviour as a SolutionArgument: if you are able to live your life in a discrete manner (e.g. gay couple not living openly together) and this will be sufficient to end your persecution, then this will negate the basis of your refugee claim Problem: If we are concerned about people being able to live in a way in which their life reflects a concept of human dignity, then living discretely implies an element of shame

Recognizable ground for persecution : forcing someone to live discretely offends the notion of human dignity that underlies the claim

Political OpinionDefinition of political opinion from Ward: “Any matter in which the machinery of state, government and policy is engaged”

Doesn’t matter if you actually have that opinion, but whether that political opinion has been attributed to you

Political opinion is a very broad concept, BUT there is some inherent limitationThere is a difference between fleeing from a criminal organization (not political) versus fleeing a war through desertion (political) - Appears to be a difficult distinction!Criminals are not engaged in a political activity even when organized – need to show a link between the criminal organization and a particular political movementE.g. Ward: a member of the Mafia can’t invoke state protection from their own organization

Exclusion ClausesArticle 1E: Having the rights of nationality in another country

Article 1E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.If you are not given refugee status or citizenship in a haven country, as long as you are treated as a citizen, then they are excluded from making a refugee claim in Canada Dual citizenship: if you have dual citizenship, you will have to show that you have a well-founded fear of persecution in both or all of your countries of citizenship before your claim will be recognized.

Article 1F(a): Serious reasons for consideringArticle 1F: The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

( a ) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

Refers of international instruments to define these crimes: Statute of the International Criminal Court, Statute of International Military Tribunal, international tribunal for Rwanda and YugoslaviaThe common law elements of criminality that surround these definitions has been problematic difficulties surround the concept of criminal responsibility:

Defences: when claiming that you were involved in a war crime, will usually claim that they were coerced (duress) or that they were given a superior order to do so in a military structureThe definitions for duress and superior orders in this context are narrowly defined:

Duress: must show that what you are facing is more severe that what you are being asked to do to other; threat must be immediate

Superior orders: if the order is clearly contrary to international principles, it won’t stand as a defence – soldiers must know that their superiors cannot order them to do certain things (e.g. torture, mass genocide)

Muranio: Facts: many young claimants from Nicaragua (some 16-17 years old) failed to be granted refugee protection because they did not leave the army soon enough.

Held to be complicit in the war crimes unless they left the army at a soon enough time.

But this is an incredibly high burden to place on young shoulders – don’t always fully understand what is going on and are in a very oppressive environment

Expectation that once you know that your group is engaged in a human rights offence, you should leave as soon as is reasonably possible

PROVISO complicity and defences: mere membership in a group involved in international offences is not enough unless its existence is premised on such methods, i.e. exists for that limited purpose. Duress is narrowly defined as is Superior Orders

Article 1F(b): Committed a serious non-political crime outside the country of refuge

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

“serious” = uncertain: violence is certainly serious, but what about theft, fraud, vandalism?“non-political” = a political disturbance + a rational nexus

Proportionality also required between the objective and the means takenInterested in excluding individuals who do not accept the basis of liberal, democratic powers Assassination Kennedy – non-political Assassinating Hitler – political

Not applicable where the person has served sentence for the crime : point of the exclusion is to target people who are fleeing justice in their own country. If they have already served time for their offence, then it is not factored in.

Article 1F(c): Guilty of acts contrary to the purposes and principles of the United Nations

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.Rationale: there is something deeply problematic to offering refuge to both victims of persecution and to their persecutors – innocent parties should not have to live in the same community with their persecutors

Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998) (SCC)Facts: Veluppillai Pushpanathan arrived in Canada seeking refugee status from his native country of Sri Lanka. The claim was never settled as he eventually got permanent resident status. After some time, Pushpanathan was arrested in Canada and convicted of conspiracy to traffic in a narcotic. He was sent to prison and was eventually paroled. He tried to renew his refugee claim but a conditional deportation order was issued. The Immigration and Refugee Board denied his application as his criminal record violated article. 1F(c) of the Convention Relating to the Status of Refugees.

Held: limits to cases of human rights abuseArticle 1F(c) will thus be applicable where there is consensus in international law that particular acts constitute sufficiently serious and sustained violations of fundamental human rights as to amount to persecution, or are explicitly recognized as contrary to the UN purposes and principles. 

IRPA s. 108: Change of circumstances and compelling reasonsS. 108: Where there has been a change of circumstances (e.g. new government), the claimant may no longer be a convention refugee. However, there may be compelling reasons to allow them to stay in Canada even if they would likely no longer face persecution in their home country.

Generally, if the persecution that they faced in the past was so severe that they are psychosocially scarred, it would be inhumane to force them to return to their home country

Problematic: very difficult to make judgments about such matter

IRPA s. 109: vacation of refugee protectionIRPA s. 109(1): The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

If the claimant has lied on their application, once its discovered that the claim is bogus, status may be removed

IRPA s. 107: No credible basisIRPA s. 107(2): If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.

Usually no credible basis because it is quite clear that the claimant are lying, but also if they have no reasonable fear of persecution

Consequences found is s. 231 of Regulations: removal order will not be stayed while leave to Federal Court is sought

Family SponsorshipGiven that family sponsorship is so complicated, would there be a better system for admitting immigrants?

Given the difficulties in defining and proving families, perhaps should just have undertakings to allow people to sponsor others generallyThe structure of families has changed so much over the past decades, that traditional definitions of families are breaking down

IRPA s. 3: objectives(d) to see that families are reunited in Canada;

Suggestion is that immigration often tears families apart Canada is thus trying to rejoin that rift. Suggests that we are trying to resolve a problem caused by immigration.However, the family class gateway into Canada is actually much broader than what is suggested by reunification Can also bring in people with whom they have not had a previous relationship.

Processing Family members are given high operational priority in visa offices

For spouses, partners and children, there is a six month processing aim (very fast in the context of immigration claims!)Parents and grandparents are not processed as quickly

If there is some crisis at the visa office, parents and grandparents are often pushed to the bottom of the list in terms of priority

Concerns that may slow down processing:Relationship of convenienceHealth of family membersCriminality of family members

Family members who may be sponsored:Spouse, common law partner or conjugal partnerDependant child: biological, adopted and including children to be adopted

Under a new law, can now apply for the citizenship of the child as soon as you commence a foreign adoptionHowever, has been difficult to get this law into operation – may in fact be easier to go through the older family sponsorship regime since the new citizenship regime still has many kinks in the system

Mother or fatherGrandparent

Fairly unique – e.g. US doesn’t allow sponsorship of grandparentsRecognition of dependence that the elderly often have on their grandchildren for support

Orphaned brother, sister, niece, nephew, or grandchild under age of 18Can’t normally sponsor these relations, but if they don’t have parents, then you can – recognition that these relations may require support from the sponsor

Any relative where sponsor has no aunt, uncle and no one on the list (above) who could be sponsored or who is a permanent resident or citizen

If you have no relations as listed above, you can sponsor a more distant relativeNot looking for just very close ties within a nuclear family, but want to ensure that the sponsor can have some family support

Access to IADIRPA s. 63: Sponsor may appeal decision not to issue a foreign national a permanent resident visaIRPA S. 65: IAD may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the Regulations.

The definition of a member of the family class is hugely important to determining what rights of appeal the sponsor has in relation to a family class applicantIn order to appeal to the IAD that an individual should be let in although there is a technical reason for keeping them out, you must fit the definition of a

sponsor and the people you are sponsoring must fit the definition of a member of the family class

Distinction between Definitional Requirement and Admissibility Requirement

Family class:Definitional requirement of family class: must fit within the enumerated list of persons who may be sponsored under the family classAdmissibility requirement: must also pass technical admission requirements, such as being in good health and having no criminal record

You may meet the definitional requirement and still be inadmissible on other grounds

Sponsor:Definitional requirement of sponsor: must be over 18, be ordinarily resident in Canada and have made an application for sponsorship, etc. Requirements to actually sponsor: there is also a series of technical requirements – must not be receiving social support, must not be bankrupt, etc.

You may meet the definition of a sponsor, but nonetheless be unable to sponsor - don’t impact definitional status

Definition of SpouseRegulations s. 117: Spouse

Regs. s. 123 Spouse of Common Law Partner in Canada Class: spouses and common law partners can apply for permanent resident status from within Canada

According to the regulations, in order to make an application in Canada, actually have to be in status (in Canada legally) – usually having a temporary resident or visitor visa

Class is for the benefit for those who are legally in Canada but are only staying temporarily

But in 2005, changed the process to allow spouses to apply from within Canada even if they are in the country illegally (e.g their visa has run out) – however, regulations still officially say that you have to be in Canada legally, but not being strictly applied

Definition: Spouse = married personCivil Marriage Act 2005 s. 2: Lawful union of two persons

Marriage must be valid in country where it took place and under Canadian law (Regs. s. 2)

Federal Law focuses on substantive factors such as degrees of consanguinity. Criminal Code proscribes bigamy and polygamy.

Bhatti: Pakistani law requires that if the spouse is not present then a representative must sign the marriage certificate on their behalf

Here, visa officer said the marriage wasn’t valid because of a procedural irregularity – father of the groom had signed his own name on the certificate rather than specifying that he was an agent

Demonstrates the difficulties often faced by visa officers when trying to determine if a marriage is valid

Many situations where there is no set of rules defining marriage, but merely customary practices By requiring the marriage to be valid in the country of origin, we are giving the visa officer the discretion to decide whether foreign law has been followed or not – not the ideal situation!

Why insist on valid marriage if functional relationships are recognized?Common law and conjugal partners are becoming increasingly recognized, but these categories are dependant upon the couple living together for an extended period of time – usually a one year requirementHowever, with marriage, may take place instantaneously and more likely to be fraudulent for the purposes of immigration

Excluded from the definition of spouse:Regs. s. 117(9)(a-c):

Foreign nationals under the age of 16 But doesn’t mean that they have to be at least 16 at the time of the marriage!

Sponsor has an existing undertakingI.e. if they have sponsored a previous spouse who they are still responsible for (existing undertaking which lasts 3 years)May have ended the previous relationship, but may still be responsible for them as a sponsor

Sponsor was at time of marriage the spouse of anotherThey have lived apart for a year and one is in a common law on conjugal relationship with another person

Problem with multiple partners

Common Law Partners and Conjugal PartnerCommon Law partner:

Regs. s. 1: cohabiting in a conjugal relationship, having so cohabited for at least one year

If not cohabiting because of imprisonment or persecution, is still a common law partners

Evidence of cohabitation: joint receipts, joint purchases, etc. Can apply from within Canada

Conjugal partners: Regs. s. 2: residing outside Canada in a conjugal relationship for a year. No cohabitation requirement, but must show a reason for non cohabitation: there must be a barrier to cohabitation

Macapagal criteria: relies on a set of seven criteria to judge whether there is a conjugal relationship:

ShelterSexual and personal behaviour (fidelity, commitment, etc.)Services (sharing household chores!)Social activities

Economic supportChildren (attitude towards)Societal perception of the two as a couple

Policy manual criteria:Mutual commitment to shared life – most important!ExclusiveIntimateInterdependent – physically, emotionally, financially, sociallyPresent selves as a coupleRegarded by others as a coupleCaring for children (if any)

DifficultiesIn the same sex case Caron v. Caron (1987) (SCC), the problems of defining when a conjugal relationship begins

I should emphasize at this point that the appellant did not argue that on a proper construction of the agreement "cohabitation" meant more than simply living together and included the notion that the wife would be being supported by her new partner. In fact, it is agreed that she received no support from him… Each accepted that "cohabitation as man and wife" meant simply engaging in sexual relations while living in the same dwelling. The clause as understood and intended by the parties would appear, therefore, to have been properly invoked by the respondent.

Proof of relationship by means of credit card and insurance policies and intimate emailsLittle constraint on discretion

Polygamous UnionsInadmissible because polygamy is a criminal offence in Canada

Could a child sponsor a polygamous parent? – Probably notDoes fall within the definitional requirement of who is a parentHowever, since polygamy is criminal offence, this will be taken into account when considering whether the individual is actually admissible

Relationships of ConvenienceRegs. s. 4: For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.

Two part test:Must be a genuine marriageMust not be entered into solely for the purpose of immigration

Whose state of mind is relevant?

Applicants intention that were primarily concerned with

What is a genuine marriage? Mutual commitment to a shared life

How to tell if the primary reason is immigration? (onus on the applicant)

Separate interviewsContradictions and no reasonable explanation

If there is a contradiction, must be able to provide a reasonable explanation for the inconsistency

Some factors that may be considered and that are common to marriage, common-law relationships and conjugal partner relationships are as follows (from Overseas Policy Manual, pg. 45):

Do the spouses, common-law or conjugal partners have a good knowledge of each other’s personal circumstances, background and family situation?The immigration status of the applicant and the timing of the marriage, common-law relationship or conjugal partner relationship.Is there evidence that both parties have planned their immigration or immigration of the foreign born spouse/common-law partners or conjugal partner jointly and over a period of time?Is there a history of multiple marriages, divorces, common-law relationships or conjugal partner relationships?Have previous relationships clearly ended and does the period of separation seem reasonable in the circumstances?Do the applicants speak a common language?

Factors specific to a marriage of convenience include:The circumstances and duration of the courtship.The wedding itself (where it was celebrated, what type of marriage, who attended).Did the marriage ceremony conform to the beliefs and culture of the participants?Is there evidence that the spouses have lived together?

Problem: what the official is trying to do is trick the partnersIs this procedurally fair?Clearly not a process to aid the applicants

Dependant Children A child (biological or adopted) is considered dependent if he or she:

is under the age of 22 and does not have a spouse or common-law partner; is a full time student and is substantially dependent on a parent for financial support since before the age of 22, or since becoming a spouse or common-law partner if this happened before the age of 22 (they may interrupt their studies for up to 12 months in total but must be financially supported by their parents at that time); or

is financially dependent on a parent since before the age of 22 because of a disability (physical or mental).

Important distinction: treatment of applicants who don’t fit the selection category v. treatment of children who are inadmissible

If one of the children doesn’t fall under a dependant child category, they will simply be removed from the application and the process will continue for the rest of the familyHowever, if one of the children is inadmissible, not because they do not fall under the dependant child category, but because they are inadmissible for a listed reason (e.g. criminal record), then the application for the entire family will be denied.

Adoptions of ConvenienceSpecial scrutiny to intra-family adoption (e.g. your nephew or niece) – may be legitimate, but attract more attention because of the concern of adoptions of convenience – wanting to bring in someone (who would otherwise not be admissible under the family class) under the guise of adoptionCheema v. Canada (2003) (FC): Child smuggled into Canada

Adoption process from within Canada is commenced and the child is allowed to stay under Canadian adoption processA genuine adoption in Canada, but the immigration criteria are not the adoption criteria

Genuine does not require a fully developed parent-child relationship (Criteria on 428)What’s the problem with lack of genuineness?

There is a concern of immigration laws breaking up family structures – don’t want to be a party to choices made by a family about the future of their children that are based on economic coercion must be a genuine decision

But no concern if the adoption is genuine and an equivalent relationship of true parenthood will be developed with the adoptive parents

Unlike partners, you can adopt as many children as you want as long as you are able to sign and maintain your undertakings.

De Guzman v. Canada (Minister of Citizenship and Immigration) (2005) (FCA)Facts: The appellant, now a Canadian citizen, became a permanent resident in Canada after being sponsored by her mother as a unmarried daughter under the former immigration law. However, she misrepresented herself when she was landed by stating to immigration officials that she was single and had no dependants, other than her daughter who was accompanying her. In fact, the appellant had two sons whom she left in the Philippines with their father. Despite the appellant’s denial that she was ever legally married, the sons’ birth certificates indicate that the appellant was married to their father. When the appellant tried to sponsor her sons, her application was refused under Reg. 117(9)(d) of IRPA on the ground that they were not members of the family class because they had not been examined for immigration purposes when the appellant applied to come to Canada.

Note : when anyone, including family class members, apply for a PR visa, they must identify all family members as defined in Regs. s. 1

Under s. 117(9)(d) of the Regulations, a person is not a member of the family class, and hence cannot be sponsored, if they were not examined by a visa officer when the sponsor immigrated to Canada.

Specifically, R. 117(9)(d) excludes a person if: “the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.”

Problem: By itself, this section doesn’t identify any distinction between types of misrepresentation at the time of the original application to come to Canada – no disctinction between fraudulent or dishonest misrepresentation and unintentional or mistaken misrepresentation.

Can be applied broadly to any situations where there are good reasons where a child is not mentioned. Further, people that don’t know that they have family members and then find out subsequent to their application that these children exist, they can’t sponsor them laterMeans that people can be excluded even if the misrepresentation was honest or made under oppressive circumstances

The only way to get around this is to apply under humanitarian and compassionate grounds

Examples of family members who have been excluded as a result of this regulation:

A man immigrates to Canada without knowing that a woman has given birth to his child. According to the immigration laws, that child is not his family member and therefore cannot be sponsored.A woman who immigrates to Canada is pressured by family or others not to mention a child she has had out of wedlock. According to the immigration laws, that child is not her family member and therefore cannot be sponsored.

Government rationale for 117(9)(d): The need to ensure honesty: According to the policy manual, the intent of

the excluded family member provisions is “to ensure that persons whom the sponsor made a conscious decision to exclude (either by not declaring and/or not having the persons examined) from their own application for permanent residence cannot later benefit by being sponsored by this same person as a member of the family class.”

The need to prevent immigration of family members who, if originally declared, would have prevented the sponsor’s immigration: “exists to prevent applicants from later being able to sponsor otherwise inadmissible family members under the generous family class sponsorship rules when these family members would have prevented the applicant’s initial immigration to Canada for admissibility reasons.”

However, the government tends to use this section as a blanket rule to exclude anyone who might have given a misrepresentation, no matter its nature

Chen v. Canada (Minister of Citizenship and Immigration) (2005) (FC)Held: The exclusion is not limited to fraudulent non-disclosure

If the purpose is to ensure honesty, the penalty should be limited to cases where there was deliberate intention to mislead. However, 117(9)(d) excludes equally both family members deliberately excluded and family members where there was no conscious decision not to disclose them. Justice Mosley of the Federal Court has made this point plainly: “I do not read the paragraph in which those terms are found as limiting the scope and effect of paragraph 117(9)(d) to fraudulent non-disclosure. The regulation is clear. Whatever the motive, a failure to disclose which prevents the immigration officer from examining the dependent precludes future sponsorship of that person as a member of the family class.”

Charter s. 7 argument: by separating her from her children, Canada is imposing psychological burdens on her – attacking her psychological well-being

Held: the appellant has not been deprived of her section 7 Charter rights to liberty and security of the person.

She is not a refugee nor a person in need of protection and provided no evidence of any special hardship or psychological stress that she is suffering as a result of the separation. She has visited her sons in the Philippines and could reunite with them on a permanent basis.

Paragraph 117(9)( d ) was thus not the cause of the appellant’s 12 - year separation from her two children since she left them voluntarily. Therefore, there was an insufficient nexus between the state action impugned (paragraph 117(9)(d)) and the appellant’s separation from her sons.

Court notes that the appellants sons could be admitted to Canada on other grounds:

Paragraph 117(9)(d) does not preclude other possible bases on which the appellant’s sons may be admitted to Canada. For example, the sons could apply to the Minister under section 25 of the IRPA (humanitarian and compassionate grounds) for a discretionary exemption from paragraph 117(9)(d) or they could apply for permanent resident status in the economic class.

Argument: Regulations are ultra vires - interpretation s. 13 of IRPA

Consistency with international human rights law – IRPA s. 3(3)(f) Rule of construction

International law gives people a right to family – is it being interfered with here?Held: Regulation 3(3)(f) does not incorporate international human rights instruments to which Canada is signatory into Canadian law, but merely directs that IRPA be construed and applied in a manner that complies with them. Paragraph 3(3)(f) of IRPA did not require that each and every provision of IRPA considered in isolation, comply with international human rights instruments.

Still allow for claims to be made on a humanitarian and compassionate basis , so nothing wrong here as long as she is not a refugee and has access to the humanitarian and compassionate decision maker

Held: Appeal denied.Court recognizes the possibility that the Appellant’s citizenship could have been revoked for the misrepresentation Ineligibility to sponsor is seen as a less onerous sanction

Sponsorship (s. 130)IRPA s. 130: in order to sponsor a family member, you must be:

A Canadian citizen or a permanent residentAt least 18 years of ageResident in Canada

OR under s. 131(2): a sponsor who is a Canadian citizen and does not reside in Canada may sponsor an application for a partner or child (with no dependant children) if the sponsor will reside in Canada when the applicant becomes a permanent resident.

Must have filed an application to sponsor a family member under the family class

IRPA ss. 131 + 132: undertaking requirements for sponsors:3 years for a partner10 years (or until age 25, if earlier) if dependant child under 223 years for a dependant child over age 2210 years for others relatives

IRPA s. 133: Requirements for a sponsorship:Relate to financial capacity and non-criminality

Exceptions to financial capacity requirement where partner or child is being sponsored.

Open to attack on the basis of discrimination based on poverty

IRPA s. 119: Withdrawal of sponsorshipAllows a sponsor to change their mind and withdraw the sponsorship applicationSponsored family member may then be subject to a removal order.

Options for applicant in Canada:Appeal based on humanitarian and compassionate groundsApply for a temporary permit

Gives a huge amount of power in the relationship to the sponsor

Important distinction: inadmissibly criteria vs. selection criteriaNote s. 64 of IRPA: There is no appeal of a decision to IAD if inadmissible on serious grounds (of criminality)If misrepresentation about a family class member, an appeal is only available if the family member being sponsored is a partner or childIf the sponsor is a permanent resident, and they have a criminal record, they may themselves be subject to a removal order and be unable to sponsorThis means that the visa officer will be making the final determination!

Economic ClassIntroductionWorswick: Immigrants are not doing so well now as they did in earlier years. There should be no increase in numbers until they start to do better.

However, such broad scale commentary is not very helpful, need to focus more on individual issues

Rather, real problem is that the government is trying to engage in an activity that is better left to employers:

More points needed for education credentials recognized by employersMore points for job experience that is recognized by employersGive employers a greater role

Grubel: Compared to Canadians, immigrants earn less. They are a net burden on taxpayers. Should instead implement more renewable temporary work permits

But what is the lifestyle of the individual who comes on the temporary work permits to fill present work needs?

BUT Statistics Canada: The earnings of second generation Canadians only loosely tied to socio-economic status of their parents

Second generation children are better able to compete and are not disadvantaged by their parents situation

General CriteriaIRPA s. 12(2): May be selected as a member of the economic class on the basis of their ability to become economically established in Canada

Two types of economic immigrants: skilled workers and business immigrants (entrepreneurs, investors and self-employed)The applicant must fit the relevant definition, and then is assessed under the point system:

Skilled workers must get 67 of 100 points (on six criteria)Appears to be quite a low pass mark, but applying the criteria reveals that is actually quite difficult to meet the standard

Self-employed, investors and entrepreneurs only need 35 of 96 points (on 5 criteria – no arranged employment category)

Can pass simply on the criterion of experience, even if you don’t have a particular education or even speak an official languageMuch lower than skilled worker standard – problematic?

Skilled WorkersReg. s. 75(2): definition of a skilled worker

Must have employment experience in one or more listed occupations. The National Occupational Classification matrix can be found on CIC website

Reg. s. 75(3): if a skilled worker doesn’t meet the definition of HRSDC listed occupation, there is no further assessment

Experience is also one of the factors for which points are given. The application form includes a box for the relevant codes.

Require some experience in an NOC listed occupation to simply get over the threshold of being considered a definitional skilled workerHowever, even if you pass this threshold, whether or not your skilled worker application is successful depends on the extent and nature of your experience

Points AssessmentRegs s. 76(2): the Minister shall fix and make available to the public the minimum number or point required of a skilled worker currently 67/100

Six factors: education, language, experience, age, arranged employment, adaptabilityAlso s. 76(1)(b): The applicant must:

Have to have a certain amount of money to support themselves (and their family) ORHave arranged employment

Regs. s. 77: Criteria must be met at time of application and at time of assessmentPolicy Manual suggests that if more education is obtained before assessment, it should be considered

EducationReg. s. 78(2): 25 points for education

5 points for passing high schoolLaw degrees are a first level degree – 20 points25 points for a PhD or Masters degree

Policy Manual notes: Canadian criteria should not be used to assess education credential

The fact that the skills developed in another country might not be as applicable in Canada should not reflect negatively on their assessment

LanguageReg. s. 29: 16 points for proficiency in English or French, 24 points for both

Four ways of testing: speaking, writing, listening, understanding

Work ExperienceReg. s. 80: 21 points for work experience

Gradations for points – minimum of one year experience to get some points

AgeReg. s. 81: 10 points for age

Must be over 16 and under 54 to get any points Lose 2 points for every year above age 49

Arranged EmploymentReg. s. 82(2): 10 points for arranged employment

Usually where the applicant is in Canada on a temporary visa, has obtained employment and is offered continued employment

AdaptabilityReg. s. 83: 10 points for adaptability, which includes 5 points for arranged employment

Also concerned about the position of your spouse if you have an skilled spouse, then this will be taken into account

Officer Substituted EvaluationsReg. s. 76(3): Officer can substitute for the criteria in the grid if they think the number of points awarded is not a sufficient indicator of whether the skilled work will become economically established in Canada

Reg. s. 76(4): Requires a concurring opinion from a second officerMay work either to the applicants advantage or disadvantage

BUT, if the applicant would have passed on the general criteria and is denied status by an officers substituted evaluation, will likely lead to an appeal

InterviewsIf the paper record does not provide sufficient detail, this is the fault of the applicant and does not necessarily give rise to an interview

Procedural fairness is not a pressing issue can always reapplyInterviews may not be necessaryThe interview is not an opportunity to test language proficiency, but integrity issues may be raised (e.g. suspect that cheated on the language exam)

Provincial Nominees ProgramReg. s. 87: the provincial nominee class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada.

Must be named in a provincial nomination certificate Federal government trying to divest their authority to the provinces to allow for more specific needs-based criteria provinces more in touch with economic needs.

The key factors considered in assessing applications in the Strategic Occupations component are:

The occupation in which the nominee candidate will be employedThe current demand and outlook for the occupationThe wage for the positionThe nominee candidate’s qualificationsThe offer of employmentThe employer’s history and operationsThe economic benefits to BC of employing the nominee candidateThe nominee candidate’s ability to become economically established in BC

Commentary on CriteriaTolley (333): New points system is touted as offering greater flexibility:

Education: positive returns when the education is obtained in Canada (except for where obtained in “elite” countries e.g. England, US, Europe, Australia).

Educated immigrants fare better than non-educated ones, but credentials are often not recognized (discrimination?) Positive returns from education rely on official language proficiency

Language: Success tied to proficiency in language. The result is not strictly linear.

Those who use an official language at home earn more than those who do not Single best predictor of economic success. But those who speak both official and non-official language fare worse in labor market (discrimination?)

Employment experience: Relationship with potential earnings similar to education. Language matters.

Age: Those who settle in Canada before the age of 10 experience the lowest earning differential.

Younger immigrants do better than older ones. Arranged employment: it may be beneficial because it will mitigate the need

for networks Adaptability:

Principle applicants are awarded point based on spouses’ education, but no account is taken of where their education was received. Immigrants with Canadian work or study experience are more likely to succeed in labour market.

Reitz’ Complex SolutionSolution requires involvement by employers, licensing bodies, unions, universities and colleges, credential assessors, NGOS and funding agenciesRequired measures:

Better information for immigrantsMore support for credential assessment servicesBridge training programsInternships and mentoring for immigrantsBetter training for ethnic diversityEmployers best practicePublic awareness

Case Law: Standard of ReviewDogra v. Canada (Minister of Citizenship and Immigration (1999) (FC) Facts: Application by Dogra for judicial review of a visa officer's dismissal of her application for admission to Canada as a permanent resident. The visa officer awarded Dogra zero units of assessment for work experience in her chosen occupation. If she had been given even half credit for her work experience in India, she would have had sufficient units of assessment for her application to

succeed. The basis for the visa officer's decision was that her experience in India did not equip her with the cultural knowledge necessary to counsel school children in Canada. Dogra had not been able to answer questions about Canadian customs and culture on such subjects as popular rock bands.

Issue: the extent to which visa officers are authorized to look behind the CCDO or NOC descriptions of education, training and experience, or other statutory criteria, in an attempt to assess the relevance of an applicant's credentials for becoming successfully established in Canada, especially in the case of applicants who list a profession as their intended occupation.

Held: Application allowed. The visa officer's mistakes in the letter of decision indicated a lack of care.

One of Canada's defining characteristics was its multicultural nature. For a visa officer to reject an application for permanent residence as a school guidance counsellor for the reason that Canadian students came from an entirely different background than the applicant was at odds with the realities of Canadian society. Using questions designed to elicit a knowledge of Canadian customs and culture was suspect, as it was based on an assumption that Canadian culture and customs were monolithic.

Reasoning: It is inappropriate for the visa officer overseas to go beyond the formal criteria that are identified to ask questions about whether that experience would translate well in a Canadian context.

“I incline to the view that it is not normally appropriate for visa officers to engage in the exercise of assessing the "Canadian relevance" of applicants' education, training and experience when they are consistent with the terms of the statutory criteria.”Busy visa officers may not be well equipped to make these kinds of assessments in the limited time available for the interview, which must also canvass other aspects of the application.Moreover, immigration policy is placing increasing emphasis on applicants' adaptability and flexibility… likely to be of more importance in predicting successful establishment in Canada than the possession of a store of specific knowledge.

What is the standard of review: Standard of correctness At the points stage, the visa officer should ask whether the person has the experience as demanded by the formal criteria. However, here the officer tried to go beyond the point system and asked inappropriate questions that went beyond the formal criteria Cannot do it while you are going through the process of counting the number of points. Inappropriate at that stage to take these things into accountWasn’t just that the visa officer gave too many points to a certain factor or reached an unreasonable conclusion, but rather that he took into account the wrong factors at the wrong time when making the decision. Recognition that if he is wanting to overturn a decision, he must show that the correctness standard is appropriate and that the visa officer took into account irrelevant factors, which is an error of law.

Dunsmuir (2008) : For standard of review, it is impossible to distinguish between unreasonableness and patent unreasonableness. Still have to make a contextual argument to the court about the factors that are reasonable to consider.

In contrast to Dogra, courts have often given visa officers a wide range of discretion to make these decisions.

Hua v. Canada (Minister of Citizenship and Immigration) (2004) (IAD)Standard of review: the court identifies the test for visa officers awarding point to be patent unreasonableness. Law has given a lot of discretion to the visa officers to make these decisions.

Sheikh v. Canada (1990) (FCA)Issue: what sort of interaction with the individual is required when making the assessment?

As noted by the policy manual, interviews are not necessary, even where there is a substituted evaluation (although they may be used to clarify matters)Standard or review: patent unreasonableness

Low level of procedural fairness : Court recognizes that the determination doesn’t have to be made with an oral interview. A paper submission is all that is required. Visa officer has complete discretion to decide whether an interview should be held. Recognition that if the documents do not show all the necessary details, that’s the fault of the applicant and will not lead to an interview Applicant can’t complain about not having the opportunity to present more material. Court is saying that there is an obligation on the applicant to provide all necessary information to the visa officer.

In general administrative law, procedural fairness will have a low importance in certain situations: importance of the decision to the individual is critical.

Assumption by the court that coming to Canada is not of fundamental importance to the individual as an economic immigrant, there is not connection to Canada (as with family class) and their freedom or security is not at stake (as with a refugee)There is no legitimate expectation of an interview.

Comment: BUT what is at stake: chance for new life in Canada, maybe your life in your home country sucks.

Seems to be unwillingness by the courts to be more sensitive to the best interests of immigrants in according the process a low level of procedural fairness.

Chen v. Canada (1991) (SCC)Facts: This was an application to quash the decision of a visa officer refusing permanent residence on the ground that the applicant lied regarding a bribe to an immigration officer. Chen was provisionally approved, subject to medical and security clearances. When a delay arose in the processing of his application, the applicant sent a Christmas card, with a cheque for $500, to the immigration officer appointed to his case. When he was summonsed to an interview, he was questioned about the bribe only at the end of the interview. He denied, then admitted that he had sent the cheque.

Note: Old immigration act did not use the same terminology: allowed visa officers to substitute an evaluation where they determined that the person was likely or unlikely to become successfully established.

This could mean not just economically established, but also socially established in Canada.

Now under the IRPA , states that substituted evaluation is only allowed to determine if that person is likely or unlikely to become economically established

Held: The application was allowed. Lying to a visa officer did not necessarily meet grounds for deciding an applicant's ability to become suitably established.

In one of the shortest SCC decisions ever, court held that they preferred the dissenting view of the FCA: its completely inappropriate for the visa officer to take into account social or cultural factors when they should only make a determination about economic integration

Why not take into account alleged bribes? Evidence may not relate to experience or language skills, but may relate to their ability to engage in honest work practices must operate within certain social mores in order to become economically established!

Entrepreneurs (1000 people per year)Definition Regs. s. 88: "entrepreneur" means a foreign national who:  (a) has business experience;

Defined as a minimum of a one year period of experience in the management of a qualifying business and the control of a percentage of the equity of the qualifying business for a period of five years before application"qualifying business" means a business — other than a business operated primarily for the purpose of deriving investment income such as interest, dividends or capital gains — for which, during the year under consideration, there is documentary evidence of any two of the following:  

the percentage of equity multiplied by the number of full time job equivalents is equal to or greater than two full-time job equivalents per year; the percentage of equity multiplied by the total annual sales is equal to or greater than $500,000;

the percentage of equity multiplied by the net income in the year is equal to or greater than $50,000; and the percentage of equity multiplied by the net assets at the end of the year is equal to or greater than $125,000. ( entreprise admissible )

(b) has a legally obtained minimum net worth of $300,000, AND must provide evidence of your assets;

(c) provides a written statement of your intent and ability to meet the condition of admittance to Canada

Modified Point System (35 points)Experience: 35 points available for 5 years experienceEducation: 5 to 25 points (High school to Masters + 17 years)Age: 21-49 are prime yeasLanguage: Max 24 points for both official languagesAdaptability: interesting test - 6 points for business exploration trip or participation in federal-provincial initiative.

Conditions of EntryThe status granted will be conditional until the following conditions are met:

Control 33.3% of the equity of a qualifying Canadian business, active and ongoing management of the Qualifying Canadian Business (QCB) and create one full time job in the QCB for a citizen of permanent resident other than the family

A Qualifying Canadian Business is defined in a way parallel to a qualifying business (although the $ amounts are less)

The conditions must be met for one year within the three years after becoming a permanent residentEvidence of compliance must be provided within 3 yearsAfter 6 months permanent address must be provided, after 18 months evidence of efforts to comply must be providedFamily members are subject to the conditions imposed on entrepreneurs.

Establishing a viable business in only three years is not an easy thing to do!

You are granted admission based on the point system. But when you arrive in Canada, you (and your family) arrive as a permanent resident. BUT you are then required to meet the above conditions over a three year period (probationary). If you fail this, then your permanent resident status will be revoked.

NOTE: when you are trying to remove permanent resident status, procedural fairness requirement is much higher!

Self-Employed (600 per year)Definition Regs. s. 88: Has relevant experience and has the intention and ability to be self employed in Canada and make significant contribution to specified economic activities

Specified economic activities: cultural activities, athletics or the purchase and management of a farm

Significant contribution: undefinedRelevant experience: two years self employment in one of the three, or two year experience in participation at a world class level in cultural activities or in athletics

Modified points system: 35 pointsAdaptability determined by reference to post-secondary education, spouses education, work and study in Canada

Unconditional status : once you meet the criteria, your permanent resident status can’t be taken away

E.g. no requirement that your farm is successful, or that you continue your athletic success

Investors (Approx 2500)Definition Regs. s. 88:

Two years of business experience. Broader definition than for entrepreneurs to include management of at least 5 full time job equivalenceLegally obtained net worth or at least $800,000 (includes spouse/common law assets)Intent to make an investment or have made and investment ($400,000 in approved fund)

The investment is allocated for five years and Canada controls the investmentWhere the 400,000 comes from is irrelevant (may be borrowed), and at the end of 5 years you get your money back. Therefore, cost of the visa might only be the cost of interest on borrowing $400,000

Modified points system: 35 points Unconditional status: make a passive investment, and you’re in!

Comment: Many people that come as investors are thinking about retiring in Canada – may be creating an incentive to come and live on their loans, but this is not the intention.

InadmissibilityThere are ten grounds of inadmissibility that can be raised at any point in the immigration process to have someone declared inadmissible to Canada.

Can be used outside of Canada to deny someone entry to the countryCan also be used from within the country to get a removal order granted.

Rule of InterpretationRegs. s. 33: The facts that constitute inadmissibility under ss. 34-37 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.Determination that someone is inadmissible is not like a determination of guilt – does not require proof beyond a reasonable doubt, but merely reasonable grounds to believe!

Regs. s. 34 - Security34(1): A permanent resident or a foreign national is inadmissible on security grounds for

(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;(b) engaging in or instigating the subversion by force of any government;(c) engaging in terrorism;(d) being a danger to the security of Canada;(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).

Exception 34(2): The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.

Regs. s. 35 - Human or international rights violations 35(1): A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for

(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or(c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.

Exception 35(2): Paragraphs (1)(b) and (c) do not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.

Regs. s. 36 – Serious criminality 36(1): A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10

years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

Easy to establish since we are dealing with the Canadian justice system

(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

Not an issue of proof, but rather an issue of equivalences what counts as an equivalency?

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

But what proof is involved in proving an act outside of Canada?Not interested in the existence of conviction, but rather proof of the commission of the act

Equivalency under s. 36(1)(b)There are many problems about relying on the determinations of a foreign justice system:

Don’t look at the formal procedural requirements not considering burdens of proof, fairness of process, Charter rights etc. Rather, only look at equivalency between substantive offences

Determining equivalency:

Li v. CanadaEquivalent = essential elements (“ingredients”) of the offence are the same

If the offences have the same essential elements in both Canada and the foreign jurisdiction, then they will be held to be equivalentThe terminology may be different, but the “ingredients” of the offence must be the same

Look at the evidence of the acts committed by the individual and determine whether they would be criminal in Canada

Must use this method when the foreign offence is defined more broadlyCan’t just rely on the fact of conviction, but must actually look to the offence to see what they actually did (not just the name of the offence they were convicted of)

Essential element includes defences but “it is not necessary to compare all the general principles of criminal responsibility”

Defences are part of the ingredients of the offence. If the same defences exist in both countries, goes to equivalence. But don’t have to go beyond the issues of the defence

But you do NOT look to see if the procedures for conviction are equivalent to those in Canada, or whether the process would pass Charter scrutiny

Problematic: Here, we may recognize criminality determined through an unfair process that would not have led to a conviction in Canada (decision would have been tossed out on procedural grounds)

Make the distinction between substantive and procedural elements in order to make decision about equivalency:

Necessary because if we made the decision based on procedural grounds (e.g. whether the foreign criminal process was fair), we would essentially have to retry every case! Making the decision of admissibility based on substantive elements may be imperfect, but it is necessary for administrative reasons – otherwise would be totally overwhelmed!

Saini v. Canada (2000) (FC) Facts: The applicant is a citizen of India who was convicted in Pakistan of hijacking an airliner. He was originally sentenced to death, but his sentence was commuted to life imprisonment. He was granted parole in 1994 and ordered to leave Pakistan. In 1998 the President of Pakistan granted the applicant pardon "on conviction/term of imprisonment already undergone".

Issue: When is a foreign pardon relevant to determining inadmissibility?Not an issue of whether an individual have committed an offence recognized in Canada, but whether a pardon that was issued in another jurisdiction should be recognized in Canada.

Note: case decided under former law (old Immigration Act) Issue of foreign pardons under the new IRPA s. 36(3)(b) is unclearIRPA may have changed things, Saini may be out of date

Refers to Canada (Minister of Employment and Immigration) v. Burgon (1991) (FCA)

Held: once a pardon was granted in the United Kingdom or in any other country with a similar legal system to that of Canada, the effect of the pardon would be to eliminate the restrictions against admissibility to Canada.

Canadian case law does allow for rehabilitated people to be admissibleIn Canada a pardon removed any disqualification caused by the conviction

Convicted refers to a conviction that has not been expungedAbsolute and conditional discharges could be given: the person is deemed not to have been convicted

In Burgon it was proper for the Court to recognize the UK law (UK law is similar to Canadian law). BUT the law of another country cannot be controlling in relation to an inquiry about implications of convictions for immigration. Must ask: should the foreign pardon be treated as a Canadian pardon would be treated? Decide by asking three questions:

Are the legal systems similar? Not enough to assume that they are similar, but must actually inquire!

Are the legal provisions similar? Need to figure out if Pakistani law aims to eliminate the future consequences of conviction. In Canada, Royal prerogative of mercy is rare

Is there a good reason to ignore the foreign pardon? (policy consideration)

Consider the gravity of the offence.

Held: While hijacking a plane is a serious offence, the applicant had been cleansed of that conviction and he should not be deported on that ground. He is not, however, exempted from deportation on other grounds.

Burden of Proof under s. 36(1)(c):Criminality: once you commit a criminal offence, we are allowed to make inference about your suitability to enter Canada

s. 33: Requires reasonable grounds to believe that they have committed a criminal act or omission outside of Canada

Very different from the criminal burden of proof not requiring that the person be proved guilty beyond a reasonable doubt, but rather that there are reasonable grounds to believe that the person committed a criminal act.

Important Exception:Reg s. 36(3)(d): the determination of acts committed outside of Canada by a permanent resident must be on a balance of probabilities

Recognition that what is at stake for permanent residents is much higher than what is at stake for a foreign applicant

What if a person has been acquitted of an offence outside Canada?Policy manual suggests that this is not grounds for inadmissibility: inappropriate to apply s. 36(1)(c) because be have s. 36(1)(b) which specifically talks about conviction. If a person has been through a criminal process and been found not guilty, cannot suggest that there are reasonable grounds to believe that they committed the act in questionAlthough the standard is only reasonable grounds, people who have been acquitted or had charges dropped through a legitimate criminal system should not be second guessed we will not look behind these decisions.

However, policy manual also suggests that word from the authorities that charges have been laid or may be laid may be enough to establish inadmissibility

Regs. s. 36(2) - Criminality 36(2): A foreign national is inadmissible on grounds of criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an

Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

EXCEPTIONS???

Rehabilitation under s. 36(3)(c)IRPA s. 36(3)(c): Some people who are inadmissible because of act or convictions outside Canada are deemed to be rehabilitated. There are two ways to be deemed rehabilitated:

Reg. s. 18(2) – passage of time plus no second offence: person is deemed to have been rehabilitated after the passage of a certain amount of time and if no subsequent offences are committed. Some people must satisfy the Minister (after a prescribed period) that they have been rehabilitated. The period is identified in the Reg. s.17 at 5 years.

Not automatic, but must make an application. Takes an enormous amount of time – processing is very lengthy, very expensive.

Regs. s. 37 - Organized criminality 37(1): A permanent resident or a foreign national is inadmissible on grounds of organized criminality for

(a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or(b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering.

Exceptions 37(2): The following provisions govern subsection (1):

(a) subsection (1) does not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest; and(b) paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.

Chiau v. Canada (2001) (FCA)Facts: The officer found that there were reasonable grounds to believe Chiau was a member of criminal organization and was thus inadmissible. Chiau was an actor who worked for studios that were owned an operated by an organized crime triad in Hong Kong.

The visa officer relied on confidential information, along with evidence at the hearing, to conclude that Chiau was a member of an organized crime triad.

Arguments: Chiau argued that the visa officer and the judicial review judge breached the duty of fairness by failing to disclose even a summary of the confidential information relied upon to him. The Minister of Citizenship and Immigration argued that disclosure of the confidential information would have resulted in serious injury to national security and international relations.

Issue 1 : What constitutes membership in a criminal organization? “Belonging to”: In some circumstances, a person may be found to be a member of criminal organization if they are engaged in a legitimate business knowing that it is controlled by a criminal organization may support a reasonable belief in membership”

Offence of being associated with organized crime - mens rea aspect is critical

Definition of reasonable grounds: “bona fide belief in a serious possibility based on credible evidence”

Issue 2: Must confidential information be supplied to the applicant? (cf Charkaoui)

Note the difference from Charkaoui – Chiau is NOT a Charter case = big difference!

Held: Chiau had not been denied any legal right because non-citizens had no right to enter Canada. The adverse effect of the decision on Chiau was comparatively slight in contrast to the potential damage to Canada's security and international relations as a result of disclosing any part of the confidential material.

Court takes into account four factors to conclude that procedural fairness does not require disclosure:

Importance to individual: there is a lack of connection to CanadaNature of decision: dissimilar to decision of independent tribunals – makes reference in absence of legal counselPublic interest Factual circumstances

Need for information at judicial review? IRPA s. 87

Regs. s. 38 - Health grounds 38(1): A foreign national is inadmissible on health grounds if their health condition:

(a) is likely to be a danger to public health;

Regs. s. 31 - communicability and impact: officer must consider the communicability of the disease and the impact that the disease may have on the public Only applies to serious contagious diseases which can be spread involuntarily and will have a severe impact – rarely used

(b) is likely to be a danger to public safety; orRegs. s. 33 – risk of sudden incapacity or of unpredictable or violent behaviourLikely individuals who have violent propensities or who lack control over their behaviour (perhaps psychotic or insane individuals)

(c) might reasonably be expected to cause excessive demand on health or social services.

Most problematicExcessive demand defined in Regulations: EITHER anticipated costs that would likely exceed the average

per capita health and social services costs over a period of five years (~$15,000), unless evidence points to significant costs beyond that point, then can increase to 10 years OR Not concerned with likely regular health problems (there is the

$15,000 buffer zone) – it’s above average costs that were concerned about.

A demand that would add to existing waiting lists and would increase the rate of mortality or morbidity for permanent residents and citizens as a result of denials or delays in the provisions of services

Exception 38(2): Paragraph (1)(c) applies only to foreign nationals. Has limited applicability:

Does not apply to members of a family class who are spouse, partner or child of a sponsor, Nor to those applying for visa as refugee of protected person; Nor to the spouse, partner child or other family member of the above.

Rationale: Recognition that some people deserve to be treated as full members of society if they are part of the family class or if they are in need of protection – concerns about cost and burden on society should not apply.

Blanket rule for both temporary and permanent visa applicants:Most of the time we are dealing with foreign nationals who are only coming to the country for a very short period of time as temporary residents – usually 6 months. But if you’re only staying for 6 months, why would we project the costs for 5 years? Don’t want to take a chance, since they may stay illegally or as refugee claimantsMost individuals who come to Canada on a temporary visa don’t undergo under medical examinationAlso applies to individuals who are applying for a permanent resident visa

Deol v. Canada (2003) (FCA)Facts: Deol, a permanent resident, wanted to sponsor her family members in India. Her father was 65 years old and suffered from advanced degenerative osteoarthritis in both knees.

Arguments: Deol argued that excluding her father based on his medical condition breached her rights under the Canadian Charter of Rights and Freedoms.

That the decision not to have the recommended surgery was relevant, That she and her father should have been advised of the bonding program available for a sponsor to fund an immigrant's medical costs in Manitoba, and That the ability to pay for the surgery was a relevant consideration.

Held: It was reasonable for the Board to find that, even if the father would refuse the surgery now, his need for the surgery was likely to become sufficiently pressing that he was likely to have it within five years of his admission.

It is relevant but not determinative that he has foregone surgery . No one can waive the right of access in the future whatever publicly funded health services they may need.Cannot waive this right even if it would grant them access to Canada

The duty of fairness did not require that the visa officer disclose the existence or the details of the Manitoba bonding program (bond declaring that they will pay for medical care themselves in the future)

It was not certain that the program would have been relevant to the visa officer's decision. Thus duty of procedural fairness is at low end of range.

It was not possible to enforce a personal undertaking to pay for health services, so the family's ability to pay was not relevant - BUT likely changed by Hilewitz !

Board did not err in failing to take account of financial ability. Even if Deol could pay for the surgery himself, it is not possible to enforce an undertaking to privately pay for health services can’t force rich people not to make use of the public health care system. Thus, any undertaking on this issue is not determinative.

Comment: if Deol had gone and gotten the surgery elsewhere to deal with the problem and then reapplied, then he would be much more likely to be admitted.

Hilewitz v. Canada (2005) (SCC)Facts: Hilewitz applied for permanent residence in Canada under the "investor" and "self-employed" classes in the Immigration Act. The application was denied because he had a dependent child whose intellectual disability "would cause or might reasonably be expected to cause excessive demands on . . . social services" in Canada, pursuant to the Act.

Issue: Should the resources of the family be disregarded in determining whether disabled children would create an undue burden?

Held: The personal circumstances of the families of disabled dependants were relevant factors in assessing their anticipated impact on social services.

Both the "investor" and "self-employed" categories required that applicants have substantial financial resources to qualify. It would be incongruous to consider the applicants' assets in determining their admissibility, but to ignore the assets in determining the admissibility of their disabled children.

Legislative history refers to both health and social servicesDrafters intended that both health and social services would be covered by the ability of the applicant to pay for them

The legislative intention was that an individualized assessment be carried out, rather than a categorical exclusion made. Medical officers must assess likely demands on social services, not mere eligibility for them, and the threshold was reasonable probability, not remote possibility.

Trend in immigration law away from automatic exclusion of classes based on general criteria towards greater discretion for admittance based on individualized assessment

Thus, the applicants' ability and willingness to contribute to their children's costs were relevant factors that should have been considered at least in relation to social services

It was mere conjecture to consider contingencies such as bankruptcies, school closures or parental death, and these contingencies could not negate a family's genuine ability and willingness to absorb some of the burdens created by a child's disabilities.

Visa officer did not read response to fairness letter Requirement that a letter must be sent out to the individual indicating that a medical condition has been found. Must be given an opportunity to respond before they are excluded on that ground – negative factors must be made known to the applicant. Decisions should be made against the individual unless they have had a chance to respond to or clarify the conditions on which the decision is based

Although at the low end of the procedural fairness, a letter must still be sent out!

Who makes the final decision about admissibility? Final decision regarding whether there will be an undue burden on health or social services is to be made by the visa officer previously assumed that the decision was based on the determination of the medical officerIf the visa officer is making the final decision about admissibility, the visa officer must be the individual to consider all the factors including the medical factors and the factors leading to the

conclusion that the individual is reasonable expected to cause an excessive demand on the system

Comment: seems to be an expectation that the visa officer must make the decision about admissibility (selection criteria) and inadmissibility at the same time!

All of these factors may work together when a visa officer is exercising their discretion to determine whether a person will be able to become economically established in Canada. There seems to be an almost inevitable bleeding together of these two determinations.

Dissent: There is a strong dissent in Hilewitz Recognition that it is quite possible to have an individualized approach to immigration but maintain a separation between the issues of selection and the issues of inadmissibility.

Could avoid many problems by maintaining this distinction. If they meet the selection criteria, but are then inadmissible on another ground, then can take particular steps to address the inadmissibility

E.g. perhaps can be admitted on compassionate and humanitarian grounds.S. 24 allows for a temporary resident permit. Even if they are inadmissible, can still be granted temporary admittance.

Expansion of HilewitzQuestion: Does Hilewitz apply only to the investor/self-employed category?

“In light of the SCC decision in Hilewitz, and de Jong (both business class applicants), officers must evaluate all submission made by business class applicants with respect to their intention and ability to attenuate the burden on publicly funded social services, before finding these persons or their dependant medically inadmissible for excessive demand on social services” (Operations Bulletin 37)So, according to policy, only applies to business applicants because of potential incongruity that would otherwise arise

Jurisprudence – Hilewitz now being expanded! Extended to skilled workers in Colaco (2007) (FCA)Applied to family sponsorships (orphaned sibling) in De Souza (2008) (FC)

Courts are breaking away from the policy manual to broaden the application of Hilewitz (although still technically only for social services)

Does Hilewitz apply to health services (in addition to social services)? According to the regulations, probably not

“With respect to health services, the current practice appears to provide the requisite individuals assessment (Operations Bulletin)

Business as usual in relation to health services: don’t need to create any new rules or regulations about whether someone is reasonably expected to be an excessive burden

Thus, Deol is still the approach for dealing with health services (financial status NOT relevant), but Hilewitz is the approach for social services (financial status IS relevant)

What changes have been introduced?Applicants in this category (business class) will be given the opportunity to establish that they have both the ability and intention to use an alternative delivery method for one or several of the social services required by the affected individual so as to offset the excessive demand on social services.

They will be invited to submit a Declaration of Ability and Intent to this affect.

If the intent is to purchase private sector social services: applicant will have to demonstrate that they have the intention and financial ability to defray the related costs and this defrayment is practicable at their intended destination in Canada. If they intend to receive non-financial assistance from a family member, other individual or organization: they will have to demonstrate that this anticipated assistance is credible and meets the real needs of the individual. In addition, the quality of the planned services will have to be comparable to that of services in the public system in the province/territory of destination.

Applicants are now required to make an official declaration and will be bound to it in the future!

Who makes the final determination?What about Regs. s. 34 that suggests that the final decision is made by the medical officers?

SCC suggested that it is the visa officer who makes the final decision, but the regulations suggest that the medical officer makes the final decisionHowever, SCC is more persuasive then the regulations Thus, the visa officer has the final say

Procedures (specifically for the business class, but expanded by jurispurdence)

Medical officers are responsible for determining if there will be excessive demand:

If the medical officer is of the opinion that the health condition of a business class applicant, or the applicant’s family member, might reasonably be expected to cause an excessive demand on social services, the officer itemizes the social services need for the individuals in Canada with an indication of the cost implication of these services

Immigration officer responsible for sending out the fairness letter, based on the opinion of the medical officer:

Upon receipt of this opinion, the immigration officer sends out the EDSS procedural fairness letter and a Declaration of Ability and Intent. The

letter invited the applicant to complete and submit the Declaration of Ability and Intent unless the applicant chooses to submit additional information to challenge the medical opinion of the health condition.

Review of Declaration of Ability and Intent by medical officer: Upon receipt of the applicant’s Declaration of Ability and Intent, the immigration officer sends a copy of the complete submission to the medical officer for review of the inadmissibility opinion

Medical officers are responsible for determining whether the affected individuals would still cause excessive demand on social services if they were to follow the outlined plan to meet their social service needs.

In doing so, the medical officers use their medical expertise and knowledge of the Canadian health and social services sector. They review the alternatives proposed by the client, keeping in mind availability, quality, practicability and funding of the proposed alternatives. In reviewing applicants’ proposed alternatives, medical officers will generally not address the issue of ability and intent, but may direct questions to the visa officers if there are issues that could affect their assessment.

If medical officers are of the opinion that applicants would no longer cause excessive demand based on the proposed plan, they will enter an M3 coding with wording in the narrative indicating that it is a conditional opinion. This M3 assessment will stand only if, after review, the immigration officer is satisfied, on a balance of probabilities, that the applicant has the ability and intent to proceed with the proposed plan.

Thus, the medical officer’s M3 conditional assessment could result in a positive or negative medical inadmissibility decision by the immigration officer.

Regs. s. 39 - Financial reasons 39. A foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themself or any other person who is dependent on them, and have not satisfied an officer that adequate arrangements for care and support, other than those that involve social assistance, have been made.

Regs. s. 40 - Misrepresentation 40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation

(a) for directly or indirectly misrepresenting or witholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;(b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;(c) on a final determination to vacate a decision to allow the claim for refugee protection by the permanent resident or the foreign national; or(d) on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in subsection 10(2) of that Act.

Application

(2) The following provisions govern subsection (1): (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and(b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.

Regs. s. 41 - Non-compliance with Act 41. A person is inadmissible for failing to comply with this Act

(a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act; and(b) in the case of a permanent resident, through failing to comply with subsection 27(2) or section 28.

Regs. s. 42 - Inadmissible family member 42. A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if

(a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or(b) they are an accompanying family member of an inadmissible person.

Justice Hughes LectureIf you know who is making the decision and the type of claim that is being made, its not difficult to find jurisprudence to determine the standard of review.Standard of review focuses not just on the decisions makers, but also the type of decision that is being made.

Guest Lecture – Justice Hughes

JUDICIAL REVIEW:

15 days under IRPA to file a request for leave for judicial review – that is from the date of the decisionS.72 IRPA you can seek an extension of time Once you file your application for leave, must be served (both w/in 15 days) Serve on Minister – Minister will then send out to the parties that they are going to appear and oppose that application – tell you which lawyer will be taking case If you haven’t already received reasons, you can make a request upon application for leave for judicial review to acquire those reasons – this causes some delay – but days start counting once you receive the reasons Usually just applicant and not Minister will file an affidavit and memorandum10 days to reply Those are the three steps for an applicant to file for judicial leave The website is very useful

Instances of contact w/ the court:

Application for a visa – if person fails in this application, they may have that matter reviewed by the courtIf a person arrives at borders and claims refugee status and fails, they may come in contact w/ the court If a person fails in the refugee status and is to be sent back to some place, they may come in contact w/ the court If a person has filed an H&C application, and failed, they may come in contact w/ the courtMay come in contact before deportation/removal

File an application for leave – a judge decides whether to grant it If they decide no, that’s the end of the story The test is whether person has any reasonable prospect of success – possibly 1 in 10, depending on the judge and the dayIf there is a reasonable prospect, then leave is granted to apply for judicial review by the court This is not an appeal – judge don’t re-think the problem – they can:

DismissAllow and then send back for re-determination usually to a different officer – and could say, in accordance w/ these reasons

Certification – every time have to decide whether there is a question for certification – speaks to whether there will be a right of appeal Baker:

Every time an issue is certified, then EVERY issue in the case is open for appeal (even though certification just on one issue)

Standard for review:Correctness – applied to question of law and procedure Reasonableness – is it reasonable Patent unreasonableness - is it absurd

Justice LeBel – there is only two standards, if a decision is not reasonable it should not standProcedural fairness trumps natural justice, standard of review, anything elseIf the procedure has lacked fairness, it goes back for re-determination