In-Canada protection determination:

Supreme Court in Singh held that in-Canada refugee/protection claimants had the right to a full hearing before an
independent tribunal in order to comply with section 7 of the Charter.
Claimants inside Canada have their determination made by the Refugee Protection Division – a constituent tribunal of the
Immigration and Refugee Board).
Claimants outside Canada do not have this right – their determination is made by a visa officer (no independent tribunal, no
right to counsel)
In-Canada claimants do not have to demonstrate the ability to successfully establish (no adaptability factors considered).
Preventing potential claimants from coming to Canada:
Because the in-Canada determination system is generally more advantageous to the claimant, there is incentive to come to
Canada to make a claim (rather than wait for a UNHCR referral).
Canada discourages people coming to Canada to seek protection:
1. Visa requirements for visitors from certain countries
2. Financial penalties on and requirements to pay removal costs by airlines that transport undocumented or
improperly documented people to Canada
3. Network of CBSA Migration Integrity Officers outside Canada assisting airlines in checking documentation and
providing training.
Recent changes to IRPA to discourage claimants from coming to Canada to make their claims:
In 2012, IRPA was amended by the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act.
These measures were triggered by the arrival of two ships with Sri Lankan refugee claimants (The Sun Sea and the Ocean
Lady).
The effect of these measures:
• the Minister of Immigration could designate certain countries as safe (“Designated Countries of Origin” or “DCOs”) (NO
LONGER APPLICABLE).
• the Minister of Public Safety could designate an arrival of two or more claimants a “designated irregular arrival” claimant’
part of this arrival are known as “designated foreign nationals” or “DFNs.
Designated Countries of Origin (DCOs):
Section 109.1 of IRPA permits the Minister of Immigration to create a list of designated countries of origin (DCOs) –
countries that are considered “safe” from where the majority of claims are rejected. The Minister must take the human
rights record and the availability of protection of the country into consideration (IRPA, s 109.1(2)):
As originally passed, DCO claimants:
1. get a hearing within 30 days of the time they make a claim at an inland office and within 45 days of the time they
make a claim at a port of entry (non-DCO claimants have 60 days). Note that volume and backlogs mean that the
actual wait time for a hearing is two years.
2. cannot get a work permit pending the hearing
3. if their claim fails, they cannot apply for a Pre-Removal Risk Assessment for three years (normal time limit for non-
DCO claimants is 12 months
4. could not appeal a refusal to the Refugee Appeal Division.
The collapse of the DCO system
In Y.Z. v. Canada the Federal Court found that denying appeals to failed claimants from Designated Countries of Origin
violated the guarantee of equality at section 15 of the Charter.
More recently, in Feher v. Canada the Federal Court found that denying a PRRA to failed claimants from Designated
Countries of Origin for three years (non DCO failed claimants can apply for a PRRA after one year) was unconstitutional.
In May 2019, the government announced that it would take all countries off the DCO list – this means that all claimants are
now treated the same no matter what their country of origin.
Designated Irregular Arrivals:
Under section 20.1 of the IRPA, the Minister of Immigration has the discretion to confer the status of designated irregular
arrival on a group (two or more individuals), if he or she:
(a) is of the opinion that examinations of the persons in the group, particularly for the purpose of establishing identity or
determining inadmissibility—and any investigations concerning persons in the group—cannot be conducted in a timely
manner; or
(b) has reasonable grounds to suspect that, in relation to the arrival in Canada of the group, there has been, or will be, a
contravention of subsection 117(1) for profit, or for the benefit of, at the direction of or in association with a criminal
organization or terrorist group.
Designated Foreign Nationals:
Foreign nationals who are part of a designated irregular arrival and who do not have the appropriate visa are known as
designated foreign nationals (DFNs)
A DFN designation has the following consequences:
1. Automatic detention upon arrival for a refugee claimant over the age of 16 years (IRPA, s 55(3.1))
2. No appeal if refugee claim is rejected by the Refugee Protection Division
3. Even if successful, may not apply for permanent residence for five years
4. Held in detention until:
a. Refugee claim is finalized; or
b. Released by order of the Immigration Division (under IRPA, s 58); or
c. Released by order of the minister (under IRPA, s 58.1)
The designation may be made retroactively to March 31, 2009
Safe Third Country:
The Minister of Immigration may designate a country as a “safe third country” and the government of Canada may enter
into an agreement with that country. Only the United States has been so designated and there is an agreement with the
U.S.:
“The Agreement between Canada and the United States for Cooperation in the Examination of Refugee Status Claims by
Nationals of Third Countries”— also known as the “Safe Third Country Agreement”
Under IRPA, s 101(1)(e), those who arrive from a safe third country may not enter Canada to pursue a claim for protection
(subject to a handful of exceptions).
Safe Third Country agreement with U.S.:
Persons arriving at a Canadian port of entry directly from the U.S. cannot make a protection claim (they must make their
claim in the U.S.) unless:
1. Family member exceptions
2. Unaccompanied minors’ exception
3. Document holder exceptions
4. Public interest exceptions
Persons who make their protection claim inland (including those who cross somewhere other than a port of entry) are not
subject to the Safe Third Country agreement.
***Current Status of the Safe Third Country Agreement.
Making a claim:
A claimant may make a claim upon arrival at a port of entry to a CBSA port of entry officer or to an IRCC
officer inland. Claim may be made orally or in writing.
The officer taking the claim must determine whether the claimant is eligible to have the claim referred to the Refugee
Protection Division.
Making a claim: eligibility
Officer will conduct an interview of the claimant for the purpose of:
1. determining eligibility to refer the claim to the Refugee Protection Division
2. gathering biographical information and determining identity
3. checking for possible inadmissibility
4. determining whether the claimant is a flight risk/danger to the public and therefore needs to be detained (Designated
Foreign Nationals are detained automatically)
Assessing eligibility:
The officer doing the interview has three days to determine whether the claim is eligible to be referred to the Refugee
Protection Division (after three days the claim is deemed to be eligible and automatically referred)
A claimant is ineligible for:
1. having made a previous claim in Canada
2. having been given protection in another country
3. having been found inadmissible for security (s. 34 of IRPA), war crimes/crimes against humanity (s. 35 of IRPA), serious
criminality (ss. 36(1) of IRPA) or organized criminality (s. 37 of IRPA)
4. having arrived from a safe third country
5. having made a claim for protection in any other country (new)
After the eligibility determination:
If the claimant is ineligible, the claimant is issued a removal order for being inadmissible (for failing to have the appropriate
visa). If the claimant is eligible, the claimant is issued a conditional removal order which only becomes enforceable if the
claim fails.
If the claimant is eligible, the officer gives the claimant an IMM-8 form (application for permanent residence) and a Basis of
Claim (BOC) form. The BOC form must be returned to the Refugee Protection Division within 15 days (if the claim is made
inland, the form must be filled out on the spot and given to the inland officer).
The officer refers the matter to the Refugee Protection Division and gives the claimant a notice of hearing setting out the
date and place of a hearing.
The applicant is also given information about getting a medical examination, plus instructions about community
organizations which assist refugees.
Detention decisions:
The officer to whom a claim is made may decide to detain the claimant if:
1. identity cannot be established. 2. there are reasonable grounds to believe the claimant is a flight risk. 3. there are
reasonable grounds to believe the claimant is a danger to the public.
Adult Designated Foreign Nationals are detained automatically. Detained refugee claimants are informed of their right to
counsel.
Waiting for the hearing:
◦ IRPA says that eligible claimants have their hearing within 60 days of the claim. The reality is that current backlogs are
more than two years.
◦ Claimants used to be able to access provincial social assistance now provinces can delay assistance (NGOs/charities may
have to provide services). Claimants can register for basic medical care and emergency dental/vision care under the Interim
Federal Health Program. Claimants can apply for work and study permits pending their hearing.
Refugee Protection Division:
The actual refugee hearing is held at the Refugee Protection Division – a constituent tribunal of the Immigration and
Refugee Board. The RPD is notified by IRCC/CBSA (whoever took the initial claim and made the eligibility determination) at
the time of the claim and gets a copy of the Basis of Claim form, as well as a transcript of the eligibility interview and any
notes/information taken by the officer who conducted the eligibility interview.
Documents relied on by RPD
The Basis of Claim Form is the key document used by the RPD to:
◦ Identify the key issues in the case to prepare for the hearing ◦ Allow the preparation of research and information about
the claimant’s country conditions for the hearing
◦ Serve as the basis of the inquiry into the claim at hearing
The claimant should also send the RPD and evidence/documents it wants to rely on and put on the record at the hearing.
This may include:
◦ Identity documents ◦ Corroborative documents to be relied on at the hearing ◦ Country background information.
Paralegals and Hearings
Bill C-35, an act to amend the Immigration and Refugee Protection Act came into force on June 30, 2011 and paralegals who
are licensed by the Law Society are now eligible to provide certain legal services in the field of immigration law. Paralegals
who are licensed by the Law Society can appear before the Immigration and Refugee Board (IRB) to represent a client or
clients in an IRB hearing, and can provide legal services to clients for matters relating to an IRB hearing (By-Law 4, s.
6(2)2(iv)). Drafting of documents or other legal services practices that are not related to an IRB hearing remain outside of a
paralegal’s scope of practice.
Pre-hearing conference:
 Sets out and limits the issues that the hearing will focus on.  These issues may include:
◦ identity of claimant ◦ does the claimant actually have a subjective fear of persecution? ◦ what is the basis of the
persecution (race/nationality/religion/social group/political opinion)? ◦ who is doing the persecution (state actor? non-state
actors?)? ◦ was there an internal flight alternative? ◦ did the claimant make the claim as soon as practicable? ◦ credibility of
claimant.

Short hearings and expedited hearings:

If the pre-hearing conference narrows down the issues AND the claimant is from a country with a high acceptance rate, the
hearing may be scheduled as a “short hearing” lasting an hour or so.
The RPD has a list of countries on the “expedited country” list (a country acknowledged to have a high acceptance rate –
Afghanistan, Burundi, Egypt, Eritrea, Iraq, Syria, and Lebanon):
• If a claimant comes from one of these countries AND • the claim appears on the face of the evidence to be well-founded,
AND • the CBSA elects not to intervene,
… the RPD may use an expedited paper process to approve the claim; if it cannot approve the claim, it will schedule a full
hearing (in other words, an expedited claim can be approved on paper, but not refused).
Evidence before the RPD (objective fear of persecution):
The Basis of Claim is the primary document relied on by the RPD – it should clearly indicate the persecution faced and on
which of the five Convention grounds and/or the risk of torture/cruel or unusual treatment. It should be credible and
consistent with the claimant’s other statements.
The claimant (if making a refugee claim) should present evidence showing an objective fear of persecution:
- the specific ground of persecution and the claimant’s membership in that ground
- evidence of persecution (medical reports, etc.)
- the unavailability of an internal flight alternative within the claimant’s home country
- country conditions report (available on IRB website), news articles, academic reports and expert reports supporting the
allegation of persecution.
Evidence before the RPD (subjective fear of persecution):
 Evidence that the claimant has made the claim at first available opportunity (subjective fear)
 If the claimant has not made the claim at the first available opportunity (the claimant waited to make a claim, moved
from country to country or returned to their home country before making a claim), the claimant will have to explain why
they did not make the claim as early as possible.
Evidence before the RPD (risk of torture/cruel or unusual treatment or punishment):
 If the claimant is also making a section 97 claim that they face a risk of torture, death or cruel or unusual treatment or
punishment, they will also have to show:
◦ That the risk is a genuine one – country condition reports, academic or media reports will help
◦ That the claimant did not have an internal flight alternative
◦ That the claimant was at personal risk (the risk is not the same as everybody in the country faces)
◦ That they sought protection at the first reasonable opportunity.
Presenting the case: RPD Rule 10 governs the conduct of the hearing
Burden and standard of proof
 The burden of proof lies with the claimant.
 The onus in establishing a claim under either section 96 or 97 is on the claimant seeking protection.
 Section 96 - Refugee Convention - claimant must merely demonstrate that there is a "reasonable chance" that he or she
will be persecuted if removed from Canada.
 Section 97, an adjudicator must find, on a balance of probabilities, that there is a greater than fifty percent chance that
the concerned individual will be tortured, or faces a risk to life or the prospect of cruel and unusual treatment or
punishment
 Both a refugee claimant and a s. 97 claimant for protection must show there is no Internal Flight Alternative (IFA).
Wherever practicable, the RPD will render the decision and reasons orally at the end of the hearing, but must also issue a
written decision (called the notice of decision).
Written reasons for the decision must be provided:
◦ If the RPD comes to a negative decision. ◦ If there was no Minister’s Counsel present when a case is accepted; or
◦ If the decision allows to vacate or to cease refugee protection
If the claim is accepted, the notice of decision states either that the claimant has been:
◦ Found to be a Convention refugee; or
◦ Found to be a person in need of protection
The notice of decision for a rejected claim will state one of the following:
1. Claimant found to be neither a Convention refugee nor a person in need of protection
2. Claimant found to be neither a Convention refugee nor a person in need of protection and there is No Credible Basis
to the claim. 3. Claimant found to be neither a Convention refugee and is not a person in need of protection and the claim is
a Manifestly Unfounded Claim.
No credible basis”:
 Subsection107(2) of IRPA provides that a claim has no credible basis if the RPD determines that there is no
credible or trustworthy evidence upon which the claim could be accepted.  If the claim has no credible basis, the claimant
doesn’t have a right to appeal the negative decision to the Refugee Appeal Division.
Manifestly unfounded claim (“MUC”):
 Section107.1 of IRPA provides that a claim is a manifestly unfounded claim if the RPD determines that the claim was
based on fraud or misrepresentation.  If the claim is declared to be a manifestly unfounded claim, the claimant doesn’t
have a right to appeal the negative decision to the Refugee Appeal Division.
If claim is accepted:
Conditional removal order is quashed. The applicant may apply for permanent residence (processing handled by Case
Processing Centre in Mississauga, ON). Any included dependent relatives outside Canada will have their applications
processed by nearest visa office. If claimant was a Designated Foreign National, even if claimant is successful, he can’t apply
for permanent residence (and therefore can’t sponsor anybody) for five years.
If claim is rejected by the RPD:
Possible appeal to the Refugee Appeal Division unless:
- Manifestly unfounded claim/No credible basis to the claim. - Claimant is a Designated Foreign National (part of a
Designated Irregular Arrival) - Lost protection through Cessation or vacation. - Claimant withdrew or abandoned claim
- Claimant made a claim as an exception to the Safe Third Agreement Claimant’s removal order comes into force (a
“departure order”). Claimant could seek leave to the Federal Court to have the RPD decision judicially reviewed (limited to
errors in law) – removal stayed pending leave. Pre-removal risk assessment (PRRA) if claimant not removed within 12
Months.
Removal of a claimant:
The refusal of a claimant means that their removal order comes into force. The specific type of removal order is known as a
“departure order”. A departure order does not limit a person’s ability to re-apply to come to Canada. If the failed claimant
does not leave within 30 days of the issuance of a departure order, it becomes a “deportation order”; the effect of a
deportation order is to permanently bar the person from re-applying to come to Canada without prior authorization. The
30-day clock stops ticking if a failed claimant applies to appeal the RPD decision or if the failed claimant applies for leave to
have the Federal Court judicially review the decision.
Vacation and Cessation:
If CBSA believes that the applicant has obtained Refugee or protected status by fraud, CBSA can ask RPD to vacate status --
even after refugee status has been conferred and the person has become a permanent resident
If CBSA believes that the conditions leading to the refugee/protected status being given no longer exist, CBSA can ask RPD
to cease (“cessation”) status Cessation proceedings were very rare until recently; in last five years, cessation proceedings
have become more common where the refugee/protected person visits the country of alleged persecution or tries to get a
passport from that country.
Cessation and vacation automatically take permanent residence status away and render a person inadmissible; they can be
removed by order of a Minister’s Delegate (senior CBSA officer) without the need for an admissibility hearing before the
Immigration Division.
Pre-removal risk assessment:
A person being removed from Canada may have the right to request a Pre-Removal Risk Assessment (“PRRA”) pursuant to
section 112 of the Immigration and Refugee Protection Act. A failed refugee claimant may not apply for a PRRA until 12
months have passed since his claim was rejected. PRRA is decided on by IRCC PRRA officer (proposal to give this to the
RPD); usually a paper process with no hearing. Applicant can only present new evidence not reasonably available at the
time of the hearing. PRRA is granted rarely (fewer than 10% of applicants.
A PRRA will result in protection if removal puts the applicant at substantial risk of either persecution as described in section
96 (Convention refugee grounds) or at substantial risk of any of the grounds that warrant protection described in section 97
(torture or cruel or unusual treatment or punishment). If granted protection by a PRRA, the applicant is considered
protected in the same way as if her claim was approved by the RPD and therefore may apply for permanent residence.
The “Limited” PRRA:
If the applicant is: inadmissible for security, some serious criminality (possible penalty of 10 years or more), war
crimes/crimes against humanity or organized criminality, excluded from the definition of Convention refugee because of
Article 1Fa (war crimes/crimes against humanity) or Article 1Fb (serious non-political crime) the applicant gets a “limited”
PRRA and can only get protection if they show risk of torture/death/cruel or unusual treatment and punishment as
described in section 97; section 96 protection (persecution) is not available. If a person is successful at a limited PRRA, they
can’t be removed, but they aren’t allowed to apply for permanent residence or ultimately citizenship – they exist in a legal
limbo and must re-apply for work/study permits every year.
 Lecture 8
Temporary Residents: “Temporary resident” is not defined in the IRPA
Instead, IRPA states that all foreign nationals must apply for and obtain a visa before appearing at a port of entry (s 11)
The regulations (Parts 9 to 12) describe the various classes or categories of temporary resident visas (“visitor,” “foreign
student,” and “foreign worker”).
Visitor class:
The general rule is that foreign nationals must obtain a Temporary Resident Visa (“TRV”) before seeking entry to Canada at
a port of entry to visit (section 11 of IRPA) – a similar two-step process for permanent residents. Citizens of some countries
are exempt from the requirement to get a visa in advance (but they must get an electronic travel authority (eTA) unless U.S.
citizens.
Place of application:
An applicant may apply at the visa office serving the applicant’s country of citizenship, or
An applicant may apply at a visa office in a country where the applicant has been lawfully admitted. The applicant need not
be lawfully present in that country at the time of the application (e.g. – a citizen of Mexico who was admitted to the U.S.
lawfully, but overstayed the period they were authorized to be in the U.S. may still apply for a Canadian TRV from the U.S.)
Process for applying for a TRV:
Foreign nationals apply outside Canada at a visa office or online at the IRCC website using prescribed forms
Section 179 of the Regulations require that the applicant:
has applied in accordance with the regulations for their particular temporary residence class. has applied in accordance
with the requirements found in IRPA. will leave Canada by the end of the authorized stay. has paid the processing fees
holds a valid passport or travel document that can get them back in their home country (exemptions at section 52 of the
Regulations). meets the requirement for a medical exam at section 30 in the regulations. is not inadmissible.
If a child is travelling without a custodial parent or guardian, consent letter must be submitted.
Medical examination results required in certain circumstances. Passport photos of applicants must be included
Biometrics collection is mandatory for all foreign nationals between the ages of 14 and 79 who are applying for, claiming, or
requesting temporary residence (excluding United States [U.S.] nationals), permanent residence or refugee protection.
The primary eligibility test for applications for temporary resident visas:
IRPA paragraph 20(1)(b):
An applicant must satisfy an officer that he/she will leave Canada at the end of the period authorized for their stay. If an
applicant fails to establish this, then the visa office will not issue a TRV.
Demonstrating “intent to leave”:
Officer will look at applicant’s ties to home country – family, job, property, etc.
Officer will ensure applicant has sufficient funds for stay in Canada – may need bank statements, employment letters, etc.,
or evidence that host in Canada will be looking after the applicant’s needs.
Officer may want to see a return ticket. Officer needs to see the applicant’s immigration status – needs to know the
applicant can return (also, evidence that applicant has overstayed may lead officer to question applicant’s likelihood to
leave Canada).
Officer will look at political and economic situation in applicant’s home country – are there reasons the applicant would
prefer to stay in Canada? Officer will examine whether applicant has ongoing responsibilities in home country (looking after
relatives, etc.). Officer will look at travel history of applicant – a history of returning or a history of overstays?
Officer will look at whether the applicant has reason to stay in Canada (all relatives in Canada, for example).
TRV decision process:
Most applications dealt with on paper without need for an interview.
If visa officer has concerns, applicant may be interviewed – very brief, in a booth with bulletproof glass between applicant
and officer. Actual interview is most likely with locally engaged staff, not a visa officer. The staff member will make a
recommendation for the visa officer to sign off. Process will generally take no longer than a month between application
submission and decision, but often much shorter (sometimes only a couple of days).
If the visa officer is satisfied that the applicant is eligible, will leave Canada at the end of the stay, and is not inadmissible,
the visa officer will issue the visa. If the visa officer is not satisfied, the applicant is sent a refusal letter. This is usually
cursory, with the reason for the refusal being checked off a list of possible refusal reasons
There is no appeal before any tribunal of the IRB for a refusal of a Temporary Resident Visa. The applicant may seek leave
to Federal Court to have the refusal Judicially Reviewed.
Medical examination requirement:
An applicant for a Temporary Resident Visa will need a medical examination performed by a panel physician if (section 30 of
the Regulations):
They are applying for a work or study permit and intend to work in health services or in a field which involves close contact
with the public. They intend to stay in Canada for a period of longer than 6 months. They are applying for a
parent/grandparent supervise. They have resided in certain designated countries for more than six months in the last year
(pretty well every country other than the U.S., Western Europe, Australia, New Zealand, and Japan). As always, there are
exemptions (ss 30(1) of the Regulations) – mostly for people coming to Canada on official business-like diplomats or
members of another country’s armed forces.
Single vs Multiple Entry Temporary Resident Visas:
Single entry visa – allows the applicant to seek entry to Canada once, at any time during the validity period of the visa
Usually issued only if the applicant is coming for a specific event like the Pan-Am games or a conference
Fee of $100.
Multiple entry visa – allows the applicant to seek entry to Canada multiple times during the validity period of the visa
Unless applicant specifies otherwise, this is the visa that will be given. Validity period up to 10 years or until the passport
expires. Fee of $100.
Exemption from processing fees (s. 296 of the Regulations):
Transit visas. Courtesy visas (usually to government officials). Holders of diplomatic passports. Members of armed forces
Visiting clergy visiting for religious reasons. Participants (athletes, judges, coaches, etc.) of the Pan-Am games. Participants
in meetings of the Canadian government or of international organizations. People also applying for work or study permits at
the same time they apply for a TRV.
Temporary Resident Visa
A TRV is a counterfoil (sticker) placed in the passport or travel document of the applicant. It is generally valid for a period of
up to 10 years (or less if the passport it is attached to expires earlier). It does not allow entry to Canada – it authorizes the
holder to appear at a port of entry to seek entry.
Transit Visas:
Transit visa – allows a person who is transiting through Canada for a period of no more than 48 hours to seek entry (citizens
of some countries can transit without a transit visa as part of the “Transit without Visa” program).
Biometric fee $85.
Temporary Resident Visa validity
A holder of a TRV can appear at a port of entry to seek entry during the validity period of the visa (typically ten years or
until the holder’s passport expires). If successful, the border services officer at the port will allow entry and issue a Visitor
Record, which includes the period authorized for the holder to stay in Canada (generally six months for regular visitors).
Appearing at a port of entry:
The Border Services Officer will conduct an examination to ensure identity (including checking biometrics if you were
required to provide biometrics), and to ensure the situation hasn’t changed – ensuring your intent is still only to visit and
that you will leave at the end of your authorized stay, and that you are still not inadmissible.
If satisfied, the officer may stamp your passport and issue a visitors record with conditions on it – includes the authorized
period for the visit (six months for ordinary visitors) and the conditions that the visitor not work or study.
Other conditions may include the setting of security deposit to ensure compliance.
Appearing at a port of entry:
If you need a Temporary Resident Visa to visit Canada and show up at a port of entry without one, you are inadmissible
pursuant to section 41 of IRPA (failing to comply with a requirement of the Act).
The Border Services Officer will either allow you to withdraw your application or will write a section 44 report outlining the
grounds of inadmissibility.
If the Officer writes a section 44 report, a Minister’s Delegate (a senior officer) may issue an administrative removal order
on the spot.
Visa-exempt countries:
Citizens of the U.S., most of Europe, Japan, Australia, New Zealand, Singapore, some Caribbean and South American
countries (“visa-exempt” countries) may seek entry at ports of entry without first obtaining a TRV.
A country gets on the visa-exempt list if the Minister believes that citizens of that country are not likely to attempt to stay
beyond authorized period (i.e., by going underground or by making a refugee claim)
Imposing a visa requirement has considerable diplomatic consequences.
 Other TRV exemptions:
Travelers using certain documents — e.g., diplomat’s passport (ss 190(2) of the Regulations)
Certain purposes of entry — e.g., airplane passengers landing in Canada for re-fuelling or crews of a transportation vessel
(ss 190(3) of the Regulations).
Visa-exempt persons at a port of entry
The Border Services Officer will conduct an examination to ensure identity and that the intent of the person is to visit. The
officer must be satisfied that the person will leave at the end of their authorized stay. The officer may do a computer
record check to look for criminal convictions to ensure that the person is not criminally inadmissible.
If the officer thinks the person actually intends to work or study, or that they want to become a permanent resident, the
applicant is inadmissible under s. 41 of IRPA for not having the proper document.
Dual Intent
In the previous Immigration Act, a person who intended to become a permanent resident could not get get a temporary
resident visa. Unfair for those who ultimately intended to live in Canada but wanted to come temporary (to be with
spouse/family, or to meet with prospective employer). Rule now is that you can have “dual intent” – even if you ultimately
hope to become a permanent resident, you can be given a temporary resident visa if the officer is satisfied you will leave
Canada at the end of your authorized period of stay.
Passport/travel document requirement:
General rule: Applicant needs a valid passport or travel document recognized by Canada, but there are some exceptions (ss
52(2) of the Regulations):
1. U.S. citizens
2. Permanent residents of the U.S. seeking entry directly from the U.S. or from St. Pierre & Miquelon
3. Residents of Greenland seeking entry directly from Greenland
4. Residents of St. Pierre & Miquelon who are French citizens and seeking entry directly from St. Pierre & Miquelon
5. Members of the military of a country designated in the Visiting Forces Act who are coming to Canada on official duties
6. Persons holding an airline flight crew license or International Civil Aviation Organization certificate coming to Canada as
part of a crew of an airplane or to join the crew of an airplane
7. Persons holding a Seafarer’s Identity Document coming to Canada as the crew of the vessel bringing them to Canada.
Temporary Resident Permit
Section 24 of IRPA creates a mechanism by which an inadmissible or ineligible person may still be allowed into Canada
temporarily. At the discretion of a delegated official (usually a senior visa officer or senior Border Services Officer), a person
may be given a Temporary Resident Permit (“TRP”) which overcomes the inadmissibility (don’t confuse TRP with TRV). The
delegated official making a decision on a TRP must be satisfied there are compelling reasons for the person being admitted
and that these reasons outweigh any danger posed by admission of the person. This cannot be used within 12 months of
being refused as a refugee/protected person.
Temporary Resident Permit
A Temporary Resident Permit has a maximum validity of three years (section 63 of the Regulations). A Temporary Resident
Permit may be cancelled at any time. A Temporary Resident Permit stops being valid if the holder leaves Canada without
prior authorization to return. A Temporary Resident Permit may allow the holder more rights than a Temporary Resident
Visa:
The TRP holder may be able to access health care or social services while in Canada. The TRP holder may be able to apply for
a work permit or study permit from within Canada (if TRP is for more than 6 months). The TRP holder may be able to apply
for permanent residence from within Canada after being in Canada on a TRP for three years.
Using the Temporary Resident Permit to get people to Canada quickly:
Sometimes a TRP is used to get people (e.g., refugee claimants in urgent need of protection) to Canada quickly, even if they
ultimately are seeking permanent residence. Recall that a long-term (three-year) TRP will allow the holder to apply for
permanent residence from inside Canada.
Changing conditions once in Canada:
A visitor may apply to change their conditions in Canada. This may include:
Extending the time, the visitor is authorized to stay in Canada. Adding a work or study permit. Changing the conditions on a
work or study permit. The application to change conditions must be sent no later than 30 days before the authorization to
stay ends. You may need to re-demonstrate ability to support self.
Changing conditions once in Canada:
If you stay beyond the period you are authorized to stay, you can apply for “restoration” of status, provided that:
No more than 90 days have passed since the authorization period ended. You have violated no other condition.
There is a compelling explanation for the failure to apply on time.
eTA requirement for visa-exempt visitors
If you are a citizen of a visa-exempt country (other than the U.S.), you need an electronic Travel Authority (eTA) before
coming to Canada. Application is online; you need a passport/travel document (and a credit card number to pay for it) and
an e-mail address. Cost is $7.00. The eTA is good for five years. Not needed for U.S. citizens.
Parent/grandparent “supervisa”
Special visa for parents or grandparents. Created because parental/grandparental sponsorship is now virtually impossible
10 year, multiple-entry visa. Allows 2-year stay (longer than the 6 month stay for regular TRV). Visitor must undergo a health
exam and have $100,000 medical insurance. Host must show a salary equal to LICO for three previous years to cover size of
family including visitor.
Foreign Student class:
There are no definitions in the IRPR for “study” and “student”. In June 2014, the program was renamed “International
Student Program”. A study permit is a written authorization that allows a foreign national to engage in academic,
professional, vocational, or other education or training that is more than six months in duration at a designated learning
institution (DLI) in Canada.
Student class: Governed by Part 12 of the Regulations (sections 210 to 220.1) Operational Manual on processing student
visas is “Overseas Processing 12” or OP12.
No permit is required for the following situations (section 188 of the Regulations):
Foreign representatives to Canada (IRPR, s 188(1)(a)). Members of foreign armed forces, even if they intend to study for
more than six months (IRPR, s 188(1)(b)). A short-term course or program of six months or less that will be completed within
the period of the temporary resident visa (IRPR, s 188(1)(c)). Persons who are registered Indians.
Minor children do not need a study permit:
To attend kindergarten. If they are refugees/protected persons or claimants, or their children
To attend preschool, primary, or secondary school -- if they are accompanying parents who are themselves on valid work or
study permits.
Unaccompanied minors who are not refugees/refugee claimants do need a study permit for anything higher than
kindergarten.
Designated Learning Institution (DLI)
A DLI is a post-secondary institution that is confirmed by the institution’s provincial or territorial ministry of education to
meet minimum IRCC standards (s 211.1 of the Regulations sets out the criteria for being a DLI
DLIs are issued unique numbers and listed on IRCC website
All public primary and secondary schools in Canada are automatically designated (need no DLI #) – private schools need a
DLI. A foreign student may only get a student permit to study at a DLI.
Fee for a student permit:
Current study permit application fee is $150, Biometric fee is $85. Section 300 of the Regulations exempts the following
applicants from having to pay a fee:
people who have been determined to be refugees or who have been given protected status. people in-Canada who have
refugee claims pending. diplomats — whether accredited to Canada or not — and their families. students seeking renewal
who have become destitute through circumstances beyond their control. students covered by international agreements (like
the Canada-U.S. Fulbright Scholar program). U.S. officials in Canada on official duties and their family members.
Where to apply:
Most applicants must apply outside Canada before entry (IRPR, s 213).
Exceptions: some people can apply for a student permit at the port of entry (IRPR, s 214)
American citizens and permanent residents. Residents of Greenland and St. Pierre and Miquelon
Some people may apply in-Canada after entry (IRPR s. 215):
Study permit holders who want to extend (current or within 90 days of expiration). Persons subject to an unenforceable
removal order. Temporary resident permit holders with permits valid for six month or more. Minor children studying at the
primary or secondary level. Exchange or visiting students. Students who have completed a short-term course or program of
study that is a condition for acceptance at a designated institution.
Applying for a student visa:
Officer must be satisfied:
Of applicant’s identity. Applicant has ability to cover costs including tuition, living expenses, health insurance and
transportation. Applicant has a genuine intent to study at the specific institution. Applicant will leave Canada at the end of
their authorized stay. Applicant is not inadmissible to Canada (health, criminality, security, etc.)
If satisfied, an officer will issue:
A study permit with terms and conditions on it (including where the student is authorized to study and for how long –
generally the study permit is good for the length of the program plus 90 days, but for minors in pre, primary or secondary
school, the study permit will be for one year. In no circumstances will a work permit be issued beyond the passport expiry
date. Letter of introduction to show to the Border Services Officer -- Border Services Officer will confirm the applicant’s
identity and do a check to make sure the applicant is still eligible and still not inadmissible. The Border Services Officer will
allow the person entry for an authorized stay of the duration of the study permit plus 90 days.
Changing conditions once in Canada:
Applicant may change schools or program without needing a new study permit – must inform IRCC.
Applicant may apply for other changes – like an extension/renewal.
They need to make this application before the expiry of the current study permit, continue to be in good standing at their
school, have complied with all the conditions on their visitor record, and still have the resources to look after themselves.
The person can continue studying with an expired study permit so long as they made the renewal application in time, have
stayed in Canada since the original study permit expired, and continues to comply with all other conditions. During this time,
the student is said to have “implied status.”
Working in Canada on a student permit:
No work permit is necessary for on-campus work (IRPR para. 186(f)). E.g.: graduate assistants, teaching assistants, and
research assistants. Also includes private businesses that are on campus (food services, etc.)
No work permit is needed for some off-campus work (IRPR para. 186(v)): Up to 20 hours per week is permitted during
regular academic sessions. Full-time work is permitted during scheduled breaks, such as the winter and summer holidays or
spring break.
Work permits may be granted if the student becomes destitute due to unforeseen circumstances beyond student’s control.
Work permits may be given for some international exchange programs. Work permits may be granted for co-op programs or
internships:
The student must have a valid study permit. Employment must be an essential part of the program of study. The co-op or
internship employment cannot form more than 50% of the total program of study. The student needs a certified letter from
a responsible academic official of the institution. Medical internships cannot be included.
Work: “An activity for which wages are paid or commission is earned, or that is in direct competition with the activities of
Canadian citizens or permanent residents in the Canadian labour market.” (IRPR, s 2). Activity does NOT have to be paid
activity for it to be considered work.
Work permits: restrictions
The general principle is that foreign workers should only be used on a temporary basis when no Canadian citizen or
permanent resident can be found to take the position. Work permits are temporary. Work permits are generally restrictive
(except for “open work permits”). For many people here on work permits, there are no mechanisms for applying for
permanent residence.
Work permits: closed vs. open permits
Most work permits are “closed” – linked to a particular employer and only authorizing employment at that employer. In
some limited situations, people may be issued an “open work permit” which allows the holder to work with any employer.
Government has recently announced that it will launch a “semi-open” work permit that will allow people qualified to work in
high-demand occupations to work for any employer offering employment in that occupation (health care, eg.)
Obligations on employer:
The employer of a foreign worker on a closed work permit must demonstrate that no suitable Canadian or permanent
resident can be found to take the position. Most employers of foreign workers must obtain a Labour Market Impact
Assessment (LMIA) from Employment Skills Development Canada (ESDC). The employer is subject to administrative
requirements; failure to comply may result in administrative penalties or even criminal charges:
1. Employing a foreign national without authorization can result in a maximum fine of $50,000 and/or a 2-year sentence
2. Employer counselling foreign national to misrepresent can result in a max fine of $100,000 and/or a 5-year sentence.
Labour Market Impact Assessment (LMIA):
Employer must apply to ESDC for an LMIA to hire a foreign worker – cost is $1000 per employee (cost, administrative
burdens and higher enforcement means that far fewer LMIAs are being issued since about 2011)
Upon application, an ESDC officer:
Assesses the “genuineness” of the job offer. Determines whether the employment of the foreign worker is likely to have a
positive or negative impact on the labour market in Canada. Conducts an Employer Compliance Review. Issues an LMIA if no
Canadian or permanent resident available to fill the job.
ESDC authority:
Conducts an Employer Compliance Review upon receipt of an LMIA application. Has authority to compel production of
documentation and business records from employer. May conduct on-site inspections of workplace (with advance warning)
Can impose Administrative Monetary Penalties on employees (“AMPS”) – non-criminal fees/fines up to $100,000 per
violation. Can prohibit employers from hiring foreign workers.
Protection of workers:
Employers are not allowed to:
Prevent the worker from leaving the work site after work. Confiscate a passport or work permit. Physically, sexually, or
psychologically abuse the worker. Threaten the worker. Counsel the worker to mislead IRCC or other Canadian authorities.
No LMIA will be given to employers (and no work permit given to the worker) seeking to hire workers in occupations that
pose a high risk of exploitation – dancing in strip clubs, working in massage parlours or escort agencies.
Applying for a work permit:
Only after a positive LMIA can an employer make a formal job offer to the foreign national. Once the LMIA has been issued
and the job offer has been made, the foreign national can apply to a local visa office. There is a $155 fee for the application.
The foreign national may need to also apply for a TRV if not visa-exempt (but there is no additional charge for a TRV if paying
for a work permit). Visa office will issue a work permit and TRV if applicant is eligible (LMIA is in order and job offer is
genuine) and not inadmissible (criminality, security, health, etc.).
At Port of Entry:
Border Services Officer will check to make sure work permit is in order, confirm identity, and do a last check on
inadmissibility. If satisfied everything is okay, Border Services Officer will allow person into Canada for an authorized period
of stay equivalent to the length of the work permit validity.
Temporary foreign worker streams
High-wage positions – managerial, professional, scientific, or technical occupations in NOC groups 0, A or B.
Low-wage positions – clerical, support or labour occupations in NOC groups C or D.
Seasonal Agricultural Worker – allows work permits to be given to people from certain countries to work for up to 8 months
in agriculture.
High-wage stream: For high-skill, high-wage jobs (NOC 0, A or B). Special programs for academics and for film/entertainment
workers. Relatively easy for spouse/partner and dependent children to accompany temporary worker (accompanying family
members can get open work permit). Temporary foreign workers in this stream may become qualified to apply for
permanent residence in the Canada Experience Class.
Low-wage stream: For service workers, cleaners, cashiers, drivers and similar workers (NOC levels C and D) with two years’
experience or a high-school diploma. Employer must pay transportation cost and recruitment costs for worker
Employee must have high school or two-years job-specific training. In 2014, the government allowed employer to pay low-
wage stream workers lower than average wage paid to Canadian for similar work; public outcry made the government back
down. Duration of the work permit is generally no longer than 24 months. Although not prohibited, it is rare for family
members to accompany; they can’t get open work permits when here. No possibility of applying for permanent residence at
end of stay in Canada from within Canada.
Seasonal Agricultural Worker program: Allows workers from Mexico and the Caribbean to come to Canada to work for up to
eight months in agriculture. Employer has to apply for an obtain an LMIA (“bulk” LMIAs) and pay wages consistent with that
which would be paid to Canadians/permanent residents in the same occupation. Employer has to cover recruitment
/transportation costs (but may recover some of these costs via payroll deduction), provide accommodation and sign contract
outlining wages and conditions, arrange for health insurance and workers’ compensation. No route to permanent residence.
Proposed Agricultural Worker program: Allows foreign workers who have been in Canada working for two continuous years
in agriculture to apply for permanent residence from within Canada.
Work permit -- place of application:
The following groups of foreign nationals must apply for a work permit from outside Canada (ss. 198(1) of the Regulations):
Any person who needs a temporary resident visa. Workers coming as seasonal agricultural workers. Workers coming as
caregivers. A person who will require a medical exam before being given a work permit. Participants in youth exchange
programs who aren’t U.S. citizens or permanent residents (unless given an exemption by the visa office).

The following groups of foreign nationals can apply for a work permit at the Port of Entry upon entry to Canada (ss. 198(1) of
the Regulations):
Citizens and permanent residents of the U.S. Residents of Greenland and St. Pierre & Miquelon. persons who are exempt
from the requirement for a temporary resident visa and whose employer doesn’t need an LMIA (part of the International
Mobility Program). Persons who are exempt from the requirement for a temporary resident visa and whose employer
already has an LMIA before the applicant comes to Canada. Persons whose work permits expired outside Canada if they are
otherwise eligible to apply at the port of entry.

The following groups of foreign nationals can apply for a work permit from within Canada after entry (s. 199 of the
Regulations):
Holders of valid work or study permits and their family members. Persons (except for business visitors) who are entitled to
work in Canada without a work permit pursuant to section 186 of the regulations and their families. Students applying for
postgraduate work permits. Holders of temporary resident permits valid for more than six months, and their families
refugee claimants. Persons subject to an unenforceable removal order. Persons in Canada who have been found eligible for
permanent resident status and their families. Persons whose work permits were authorized by a visa office outside Canada
Mexican or U.S. citizens in Canada as temporary residents who may apply in-Canada under a NAFTA category.
Exemptions from the requirement for the employer to get an LMIA -- the “International Mobility Program”:
Under the IMP, certain foreign nationals are exempt from the LMIA requirement (IRPR, s 204(a)). Since it has become more
difficult to get an LMIA, the International Mobility Program has become more important. A work permit will be issued by
IRCC without an LMIA if the foreign national is likely to produce a significant benefit to Canada. Includes social or cultural
benefits to Canada’s labour market and economy. Up to the visa officer or Border Services Officer to decide what constitutes
a “significant benefit.”
Intra-company transfers: For executives, senior managerial, or specialized knowledge employees who are involved with
multinational companies or assisting with a company’s operations of a Canadian parent, subsidiary, branch, or affiliate
company. One-year work permit, renewable for seven years (for executives or managers) or five (for specialized knowledge
employees). After this maximum, employee would have to wait one year before getting another work permit.
International Free Trade Agreements (FTAs): contain provisions to facilitate, on a reciprocal basis, temporary entry for
businesspersons. Eligible persons entering under an FTA will generally require a work permit but are exempt from a Labour
Market Impact Assessment (LMIA). Free Trade Agreement Professionals now FTA Professionals engage in pre-arranged
employment in list of occupations/professions — e.g., accountants, engineers, lawyers. A work permit is issued for up to one
year. Free Trade Agreement Intra-company transferee. An intra-company transferee is an executive, senior manager, or
qualified employee with specialized knowledge who is transferred within a company to work in Canada on temporary basis.

Even if exempt from having to get an LMIA, an employer hiring a foreign national must still meet certain obligations:
They still have to show ESDC that they have made efforts to find a suitable Canadian citizen or permanent resident for the
job. They have to pay an employer compliance fee of $230 to IRCC. They are subject to requirement to produce
documentation for and be inspected by ESDC.
LMIA exemptions – Open Work Permits: Holders of open work permits can get a job without their employer having to
obtain an LMIA. Their employer need not pay an employer compliance fee. Open work permits may be unrestricted or
restricted to a given occupation (or prohibit certain occupations) – usually for reasons of public health. Validity period is
generally as long as the validity of the temporary resident visa (unless the person is exempt from the need to have a TRV).

People working in Canada and their accompanying family members who have applied for permanent residence and who
have been given a positive assessment of eligibility in the following programs:
Federal Skilled Worker. Federal Skilled Trade. Canadian Experience Class. Provincial Nominee Program. Federal Skilled Trades
Program. Humanitarian and Compassionate ground.
LMIA exemptions – Open Work Permits:
Also available for: • members of the spouse or common law partner in Canada class. • family members of foreign
representatives. • family members of military personnel assigned to Canada. • spouses and partners of foreign workers
already here (provided that the foreign workers are “high-wage” — NOC levels 0, A or B). • spouses or partners of foreign
students at post-secondary institutions. • spouses or partners of work permit holders who have been also nominated by a
province. •foreign students who have become destitute because of circumstances outside their control.
LMIA exemptions – Open Work Permits:
Also available for: persons holding a Temporary Resident Permit of a duration of longer than six months.• participants in the
Canada World Youth program or the International Experience Canada program.• refugee claimants whose claims have been
referred to the IRB and who need to work to meet their basic needs.• rejected refugee claimants who cannot be removed
from Canada and who need to work to meet their basic needs.• professional athletes working for a Canadian team who
need additional work to meet basic needs.• international students graduated from a Canadian post-secondary institutions.
Post-Graduate Work Permit Program: The PGWPP helps foreign graduates of Canadian colleges and universities qualify for
permanent residence in Canada through the Canadian Experience Class (CEC). The permit may be issued for the length of the
study program, up to a maximum of three years and cannot be valid for longer than the program. The study program must
have been a minimum of eight months in length. Not eligible if you have ever held a PGWPP in the past, or have had your
study costs covered as part of a government exchange program
Work permit exemptions: The following (partial list of) groups of foreign nationals can work in Canada without a work
permit (s. 186 of the Regulations).
Business visitors or, if they are coming for a period of less than six months, from anywhere. A business visitor is a person
(coming to Canada for international business activities related to research and design, or to growth, manufacturing, and
production, or to marketing and sales, or to distribution and after-sales service – list of allowed activities is at s. 187 of the
Regulations). Diplomats• Performing artists. Foreign athletes• Public speakers. Military personnel• News reporters.
Members of a transportation crew. • Expert witnesses/examiners/evaluators. Clergy. • Students working on campus.
Changing conditions on a work permit: Unless the applicant has an open work permit, there will be conditions on the work
permit that include the employer’s identity, the type of employment, the location of employment, and the length of time
authorized for the work. If the holder changes jobs, they need to get the new employer to get an LMIA and to get a new
work permit. A work permit becomes invalid when it expires or when a removal order against the holder becomes
enforceable. A holder of a work permit can apply for an extension before it expires, if the holder has complied with all the
conditions. If the renewal isn’t approved before the work permit expires, the foreign national may still work pending
approval on “implied status” so long as they haven’t left Canada and have complied with all other conditions.

Lecture 9
Humanitarian and Compassionate (“H & C”) application (sections 25/25.1 of IRPA): Allows applicants for permanent
resident status a remedy if a strict application of IRPA and the Regulations would create unfairness or hardship. Not meant
as an “alternative” immigration process. H & C is an extraordinary remedy (success rate lower than 10%).
Humanitarian and Compassionate (“H & C”) application: Section 25 of IRPA: foreign nationals who are inadmissible or
don’t meet a requirement of the Act may apply for a humanitarian and compassionate exemption in relation to a permanent
residence application. Minister is obliged to consider the application if the foreign national is in Canada; the Minister “may”
consider the application if the foreign national is outside Canada. Section 25.1 of IRPA: The Minister may also grant a
humanitarian and compassionate exemption on his/her own initiative.
Exceptions to H & C relief: An applicant cannot get relief pursuant to section 25 or section 25.1 if they are inadmissible
pursuant to section 34 of IRPA (security), section 35 of IRPA (war crimes/crimes against humanity) or section 37 (organized
criminality). (But these people may apply for Ministerial Relief).
Delegated responsibility for H & C decisions: Minister of Citizenship and Immigration does not actually make these
decisions: Outside Canada, certain visa officers are delegated to make H & C decisions
Inside Canada, certain IRCC officers are delegated to make H & C decisions.
Who applies for H & C exemptions? Outside Canada an applicant for permanent residence may informally request H & C
exemption to overcome inadmissibility (except for sections 34/35/37) or to overcome failure to meet eligibility criteria (e.g.,
not enough points).
Inside Canada a formal H & C application is often made to:
Allow a foreign national an exemption from the requirement that they apply from outside Canada, and/or
Allow a foreign national an exemption to overcome inadmissibility (except for sections 34/35/37) or to overcome failure to
meet eligibility criteria).
H & C application may also be used to request exemption from having to pay a fee.
In-Canada H & C applications – typical applicants:
1. refugee claimants who have been refused refugee status
2. foreign nationals facing removal because they have stayed beyond the period authorized for their temporary stay
3. applicants who had been allowed to apply for permanent residence from within Canada but who have had their
application refused
4. applicants who are in Canada lawfully on a temporary resident visa or a temporary resident permit.
Test for H & C application: Very little guidance in section 25 and section 25.1 for officers who make the decisions -- only that
an exemption may be granted if the Minister is of the opinion that it is justified by humanitarian and compassionate
considerations, taking into account the best interests of a child directly affected (the child doesn’t have to be the applicant).
Contrast the subjectivity in an H & C application with other decisions where the eligibility is objective – family class (where
the eligibility criteria are defined by establishing relationship to sponsor) or Federal Skilled Worker class (where the eligibility
criteria are defined by obtaining points on a point system).
Test for H & C application: Best Interests of the Child. Child can be applicant, or any child affected by the decision.
Relevant factors may include:
the child’s physical, emotional, social and cultural welfare. the child’s age. the child’s level of dependency on the applicant
the degree of the child’s establishment in Canada. the conditions in the place the child will be removed to
the child’s special medical or social needs. the impact on the child’s education. the impact on the child as a result of the
child’s gender. if the child will be separated from parents or caregivers as a result of somebody being required to leave
Canada.
Threshold test for H & C application: The policy guide for officers making H & C decisions used to say that the applicant
needs to show that being required to leave Canada would cause “would cause the applicant to suffer unusual and
underserved or disproportionate hardship.” Kanthasamy v. Canada (SCC, December 2015) said that this threshold test was
inappropriate – instead, the officer should look at the totality of the circumstances, rather than requiring a high level of
hardship. This is particularly true where a child’s interests are implicated; we shouldn’t be insisting that a child suffer
extreme hardship in order to get H & C relief.
Threshold test for H & C application: The problem with the “new” test as outlined in Kanthasamy is that it isn’t ultimately
very helpful. It simply states that the officer needs to look at all the circumstances of the case.
Threshold test for H & C application: The updated policy manual for officers making decisions on H & C applications says:
… making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and
factors before them ... individual H&C factors should not be considered in isolation; there must be a global assessment of all
the relevant factors. As of December 10, 2015, there is no hardship “test” for applicants under subsection 25(1); however
the determination of whether there are sufficient grounds to justify granting an H&C request will generally include an
assessment of hardship. Therefore, hardship continues to be an important consideration in determining whether sufficient
humanitarian and compassionate considerations exist to justify granting an exemption and/or permanent resident status.
Public Policy Exemptions (section 25.2 of IRPA): Minister may also grant an exemption from any provision of the Act or
regulations (including inadmissibility for 34/35/37) with respect to an application for permanent residence if the Minister is
of the opinion that there are public policy reasons to do so. Used for situations such as:
Allowing witnesses to move to Canada to testify. Allowing somebody who is otherwise inadmissible or ineligible to move to
Canada if their presence would contribute to Canada’s social or economic wellbeing. Allowing a group of people otherwise
inadmissible or ineligible to apply for permanent residence (such as Afghan interpreters for the Canadian Forces).
Where to apply: In-Canada (The “Humanitarian and Compassionate Considerations Class”): Applications made inside
Canada are made using specific forms to be attached to an application for permanent residence. The application may be
sent either to a Case Processing Centre or submitted online.
In-Canada applications are asking for:
Exemption from the requirement that a foreign national apply from outside Canada, as well as possibly
Exemption from an eligibility requirement or an inadmissibility, as well as possibly …
Exemption from a fee requirement.
Applying for H & C outside Canada: No specific form is required; the applicant simply makes a written request along with
the application for permanent residence. Certain visa officers (usually the more senior ones at the visa office) are delegated
to make H & C decisions.
H & C decisions: Purely a paper process – no interview/hearing. Applicant is expected to get all material in at once – officer
will not request additional documents even if material is incomplete. On in-Canada applications there is a two-part process.
First the decision is made about whether there are Humanitarian and Compassionate reasons to allow a person to apply
from within Canada, then a decision is made about whether there are Humanitarian and Compassionate reasons to allow a
person to become a permanent resident despite inadmissibility or ineligibility. No appeal to any tribunal from a negative H &
C decision (although applicant may seek leave to the Federal Court to have the decision Judicially Reviewed – note that this
will not automatically stay a removal).
Restrictions on the right to apply for H & C: Failed refugee claimants may not make an application for H & C consideration
within 1 year of a negative decision at the RPD or RAD unless the H & C deals with life-threatening medical circumstances or
the best interests of a child. Refugee claimants can’t make an H & C application while their refugee claim is pending. H & C
applications do not automatically stay removal orders.

Other remedies: Ministerial Relief: A person inadmissible for security (section 34 of IRPA, war crimes/crimes against
humanity (section 35 of IRPA) or organized criminality (section 35 of IRPA) may apply pursuant to section 42.1 of IRPA for
Ministerial Relief. Minister can make a declaration that the things that made the person inadmissible do not constitute
inadmissibility if the Minister is satisfied that allowing the person in would not be contrary to the national interest.
The Minister is limited to considering national security and public safety; no humanitarian and compassionate factors (2013
Agraira decision at the Supreme Court). One of the few non-delegable powers in IRPA – only the Minister of Public Safety can
issue Ministerial Relief.
Other remedies: Criminal rehabilitation: Remember that if you are inadmissible for criminality or serious criminality,
another remedy is rehabilitation. If ten years have passed, you can be “deemed” rehabilitated. If 5 years have passed, you
can apply for discretionary rehabilitation. Only available for inadmissibility pursuant to section 36 of IRPA.
Other remedies: Temporary Resident Permits: This is a remedy for those who are inadmissible/ineligible and who want to
come to Canada temporarily. Can be issued by delegated visa officers or port of entry officers ($200 fee).
Typically used to:
Allow a visitor with minor inadmissibility for criminality to visit Canada. Allow a medically inadmissible person to come to
Canada for medical treatment. Allow a refugee claimant outside Canada to come to Canada pending the processing of their
refugee claim if the refugee claimant is in imminent danger of harm.
Temporary Resident Permit: Can also be allowed to allow a person to come into Canada “temporarily” with the expectation
that the person will eventually be allowed to apply for permanent residence from within Canada (in other words, even
though it is meant to allow people to come temporarily, it can be used for people who are ultimately hoping to stay
permanently). Can be issued with a duration of up to 3 years (allowing a 3-year stay in Canada). May allow applicant access
to health and social services, and to apply for work/study permits. A person who has been in Canada continuously for 3 years
on a TRP can apply for permanent residence from within Canada.
Tribunals that make up the Immigration and Refugee Board: Immigration Division (“ID”):
Decides whether some foreign nationals and permanent residents alleged to be inadmissible are inadmissible and if so,
issues removal orders. Holds detention reviews for foreign nationals/permanent residents in immigration detention
Immigration Appeal Division (“IAD”): Appeals from decisions on inadmissibility made by the Immigration Division.
Appeals from decisions by officers that a permanent resident has not met the residency requirement. Sponsorship appeals
where a sponsored family member has been refused.
Refugee Protection Division (“RPD”): In-Canada refugee claims. Decisions about whether persons granted refugee status
should have their status vacated or cessated.
Refugee Appeal Division (“RAD”): Appeals from refugee determination made at the Refugee Protection Division
Immigration Division: Holds admissibility hearings for people in-Canada who are alleged to be inadmissible.
NO discretion to consider whether there are humanitarian and compassionate reasons to allow somebody to stay if the I.D.
finds them inadmissible. Also holds detention reviews for people who are in immigration detention. Temporary residents
and other foreign nationals who are issued a removal order do not have the right to appeal to the Immigration Appeal
Division.
Hearings before the Immigration Division: One single member presides. Hearings are open unless ordered otherwise.
Government is represented by a CBSA hearings officer known as “Minister’s Counsel.” Proceedings are adversarial.
Immigration Appeal Division: Section 63 of IRPA establishes who has a right of appeal to the IAD:
Permanent residents or protected persons who have had a removal order issued against them (either by the Immigration
Division or an administrative removal order issued by a Minister’s Delegate). People who have had their permanent
residence status revoked because of failure to meet residency requirements. Sponsors of refused family-class applicants.
Foreign nationals who hold a permanent resident visa who have been found inadmissible.
Immigration Appeal Division: No right of appeal to the IAD for a refusal of any permanent resident or temporary resident
visa or work/study permits. No right of appeal to the IAD for temporary residents subject to a removal order. No right of
appeal to the IAD for a refusal of any remedy (H & C application, Ministerial Relief, criminal rehabilitation, Temporary
Resident Permit).
Exceptions to the right of appeal to the Immigration Appeal Division: Section 64 of IRPA bars the following groups of people
from appealing to the IAD:
Persons found inadmissible pursuant to section 34 of IRPA (security)
Persons found inadmissible pursuant to section 35 of IRPA (war crimes/crimes against humanity)
Persons found inadmissible pursuant to section 37 of IRPA (organized criminality)
Persons found inadmissible pursuant to subsection 36(1) of IRPA (serious criminality) IF that person has been sentenced to
incarceration for a term of six months or more
In the case of a sponsorship appeal, persons inadmissible pursuant to section 40 (misrepresentation) unless the person is the
spouse/partner or child of the sponsor
Immigration Appeal Division proceedings: IAD has “sole and exclusive jurisdiction to hear and determine all questions of
law and fact” – they can make any ruling about any matter before them; no need to interrupt proceedings for a Court to
determine whether evidence is admissible, etc.
IAD may base decision on any evidence before it – not limited to what was before the original decision-maker. The hearing
is de novo (unlike Judicial Review before Federal Court). IAD is not bound by legal or technical rules of evidence (e.g.,
hearsay rules); anything is admissible so long as it is fair to both parties and relevant to the proceedings.
Unlike the I.D., the IAD is allowed to give humanitarian and compassionate relief.
Hearing before the IAD: Presided over by a single member of the IAD. The government is represented by a CBSA hearings
officer known as “Minister’s Counsel”. Hearing is open to the public unless otherwise ordered. Proceedings are adversarial.
Possible IAD decisions (section 67 and 68 of IRPA): The IAD may dismiss the appeal
The IAD may allow the appeal if:
The original decision-maker made an error in law. The original decision-maker made an error in fact. The original decision-
maker made an error of mixed fact and law. The original decision-maker breached the principles of natural justice.
If the IAD allows the appeal, it may either substitute its own decision or refer the matter back to the level of the original
decision-maker for redetermination.
IAD Humanitarian and Compassionate discretion: Even if the IAD finds no error in the original decision, the IAD may allow
the appeal if there are humanitarian and compassionate reasons to do so (only available in sponsorship cases if the IAD
believes the person meets definition of family class).
The IAD may stay a removal order on humanitarian and compassionate grounds – it can put conditions on the person subject
to removal orders.
The Minister may seek, or the IAD may seek on its own jurisdiction, a “Reconsideration of the Appeal” (ss 68(3) of IRPA)
A criminally inadmissible person whose removal was stayed by the IAD has the stay cancelled if they are subsequently
convicted of a serious crime (ss 68(4)).
IAD decisions: In addition to providing a notice of decision:
IAD must provide written reasons on a sponsorship appeal. IAD must provide written reasons if it stays a removal order
IAD must provide written reasons within 10 days of a decision if a party requests reason.
Refugee Appeal Division (“RAD”):
Authority of the Refugee Appeal Division found at sections 110 and 111 of IRPA.
Although the RAD was included when IRPA was enacted in 2002, these sections weren’t proclaimed into law until 2010.
Prior to 2010 there was no appeal from a failed refugee claim (only Judicial Review).
Hears appeals from decisions on refugee claims at the Refugee Protection Division. Either the failed claimant may appeal or
the Minister may appeal (rare). Failed refugee claimants whose the decision was made outside Canada do NOT have a right
to appeal to the RAD. Generally a paper process – party may request (or RPD may require) an oral hearing if the issue is
credibility. Only hears new evidence if it was unavailable at time of original RPD hearing.
Refugee Appeal Division (“RAD”): No appeal hearing for:
Claimants who were refused outside Canada.
Designated Foreign Nationals (those arriving as part of a Designated Irregular Arrival).
Claimants who were refused because they have withdrawn or abandoned their claim before the Refugee Protection Division.
Claimants who were refused and found to have a “manifestly unfounded claim” by the Refugee Protection Division.
Claimants who were refused and found to have a claim that had “no credible basis” by the Refugee Protection Division.
Claimants who were allowed to make claims as exceptions to the Safe Third Country agreement.
Claimants who have been the subject to Cessation decisions or Vacation decision.
Appealing a decision to the RAD: Very tight timelines:
Notice of Appeal must be filed 15 working days from the time the appellant receives written reasons of a negative decision
from the Refugee Protection Division.
Appellant has to perfect the appeal:
Include a memorandum setting out grounds of appeal, errors alleged to have been made by the RPD, and outcome sought
If appellant wants an oral hearing, memorandum must include that request
Appellant must also produce the RPD notice of decision, transcripts, relevant case law and all documents relied on, as well as
any evidence refused by the RPD. Memorandum can not be longer than 30 pages.
Decisions on appeals are usually dealt with within 90 days of perfecting the appeal unless an oral hearing is needed.
Decisions made by the RAD: Section 111 of IRPA provides that the RAD may:
Dismiss the appeal because it hasn’t been properly perfected or because the RAD doesn’t have jurisdiction
Confirm or uphold the decision of the Refugee Protection Division.
Set aside the decision of the Refugee Protection Division and either substitute its own decision or refer the matter back to
the Refugee Protection Division for redetermination.
Judicial Review at the Federal Court: Once appeals are exhausted; the only remaining option is to seek leave to the Federal
Court to have the last appeal decision judicially reviewed.
One may also seek leave to the Federal Court to have decisions judicially reviewed if the decisions had no right of appeal –
e.g.: Applications for permanent residence other than sponsorships and in-Canada refugee applications
Applications for temporary residence visas, student visas and work permits
Applications for Pre-Removal Risk Assessments
Applications for humanitarian and compassionate exemption
Applications for Ministerial Relief against inadmissibility for sections 34, 35 and 37 of IRPA
Applications for temporary resident permits.
Federal Court of Canada: Unlike Provincial Courts which get their jurisdiction from the Constitution of Canada (a Court
established by the 1867 Constitution Act) and which are said to have “inherent jurisdiction” to hear any matter
The authority and jurisdiction of the Federal Court is entirely created by statute (the Federal Court Act).
The Federal Court only has authority to do what is set out in the Federal Court Act. This generally means judicial review over
decisions taken by Federal tribunals/decision-makers (e.g., patents, Admiralty, Customs law and Immigration matters)
The Federal Court generally does not deal with criminal trials or civil suits.
Federal Court Rules govern conduct (submission requirements, timing, etc.) before the Federal Court.
Includes a specific set of Rules dealing with Immigration Judicial Review.
Only Barristers recognized by a Law Society can appear at Judicial Review hearings (Barristers are generally gowned at
Judicial Review); in Federal Court you don’t have to be called to the bar in the province where the court is physically located.
Section 72 of IRPA provides that the Federal Court may review “any decision, determination or order made” with respect to
immigration matters provided that the applicant has exhausted any appeal rights already available in IRPA.
Seeking leave: For immigration matters, applicants must obtain leave to have the decision judicially reviewed.
Leave application is purely a paper review.
Applicant for leave must file an application for leave and Judicial Review and pay a $50 filing fee within 15 working days of
being notified of the decision in Canada; within 60 days of the decision if made outside Canada.
Once application for leave is filed, applicant has 10 days to serve respondent (Minister of Public Safety/Minister of
Citizenship and Immigration/Immigration Refugee Board).
Respondent has 10 days to file a notice of appearance if they wish to contest the leave application.
Perfecting application for leave: Applicant must perfect the application within 30 days after filing the notice of leave. This
includes a memorandum of argument setting out facts and law as well as the relief being sought, the decision the applicant
is seeking reviewed, a copy of the reasons of the decision-maker and any supporting affidavits verifying the facts relied on.
Respondent then has 30 days to serve and file a memorandum of their own. Applicant can file a reply within 10 days.
Judicial Review at Federal Court: A Judge of the Federal Court will review the leave material and decide whether there
should be a hearing. If the Judge decides not to grant leave, that ends the matter; there is no appeal/review.
If the Judge decides to grant leave, the Federal Court will issue an order setting out the place, language and date for a
Judicial Review hearing (between 30 and 90 days after leave is granted). The order will also set out the time for the parties
to provide memoranda of argument (each side gets to reply), as well as to provide supporting affidavits and cross-examine
affiants.
The original decision-maker must provide a complete record of the decision including relevant evidence and transcripts.
Judicial Review at Federal Court: At the hearing, counsel for the applicant and the respondent present their argument.
The Judge may ask questions. No witnesses are called, and the evidence relied on is generally the evidence that had been
before the original decision-maker (new evidence can only be used if it could not have been reasonably available at the time
of the original decision and it is relevant/material to the decision).
The applicant is not part of the proceedings.
Judicial Review at Federal Court: The Federal Court will only interfere with the original decision if it concludes that:
The original decision-maker acted outside of their jurisdiction.
The original decision-maker failed to observe a principle of natural justice or procedural fairness.
The original decision-maker made an error in law.
The original decision maker based the decision on an erroneous finding of fact made without regard for the evidence.
The original decision-maker based a decision on fraud or perjured evidence.
The original decision-maker acted in any other way contrary to the law.
The Court must decide how much deference to give the decision-maker. For most findings of fact by the original decision-
maker, the Court will only overturn a decision if the original decision was “unreasonable”. For findings of law, the Court will
overturn if the original decision was not “correct”.
Judicial Review at Federal Court: If the Federal Court allows the Judicial Review, it may substitute its own decision, or refer
the matter back to the level of the original decision-maker.
The Court may also make any other order it considers appropriate, including:
Ordering that a pending decision be made. Ordering that a particular decision not be made. Providing guidance to the lower
decision-maker about the application of the law or the definition of terms. Declare a policy or legislation to be
unconstitutional. Quash legislation that is unconstitutional.
Beyond Federal Court: At the end of a Federal Court hearing, the parties may ask the Court to “certify a question” of general
importance. If the Court agrees to certify a question, the question is entered into the record. If no question is certified, the
matter ends with the Federal Court decision.
If the matter goes to the Federal Court of Appeal, it is heard before a panel of three Federal Court of Appeal Judges. No new
evidence is heard; only lawyers argue the matter.
If a party is unsatisfied with the Federal Court of Appeal decision, they can seek leave to appeal to the Supreme Court.
Alternative judicial remedies: Alternately, Provincial Superior Courts (“Courts of Inherent Jurisdiction”) have authority to
judicially review immigration matters – although in practical terms they usually will decline to do so – Supreme Court is
currently examining this question.
An applicant facing removal to potential risk of torture/death/cruel or unusual treatment or punishment may ask the U.N.
Committee Against Torture (“CAT”) to request that the Canadian government not remove somebody. Canada may or may
not agree.
Citizenship: No Canadian citizenship prior to enactment of Citizenship Act in 1947 (before this, Canadians were British
subjects).
Citizenship Act of 1977 recognized multiple citizenships.
Recent legislation has clarified the amount of time needed for a permanent resident to stay in Canada before applying for
citizenship, as well as the rules for language facility and who has to take the citizenship test.
Controversial legislation allowed government to take away Canadian citizenship if a person had multiple citizenship and
engaged in terrorism or armed conflict against Canadians.
Citizenship by birth: Any person born in Canada is a citizen except for children whose parents have diplomatic status.
Parents do not have to be in Canada lawfully for children to be citizens.
Children born on Canadian-registered vessels are Canadian citizens.
Children born outside Canada are citizens if one parent is a Canadian citizen (not a permanent resident). However, children
born outside Canada of citizens born outside Canada do not become citizens themselves.
Children adopted outside Canada by Canadian citizens may become citizens.
Citizenship by naturalization: A permanent resident of Canada may apply to become a citizen. They have to:
Be 18 or older or included in a parent’s application. Make an application and pay fees. Meet the residency requirement.
Not be subject to a removal order. Not be considered a threat to security or involved in organized crime. Be proficient in
basic English or French (persons younger than 18, older than 54, or have a medical incompetency do not need to meet this
requirement). Pass a citizenship test (persons younger than 18, older than 54, or have a medical incompetency do not need
to meet this requirement). (Until October 2017 the age exemptions were younger than 14/older than 64; your textbook is
out of date). If accepted, take the citizenship oath.
Residency requirement for citizenship: In order to be eligible to apply for citizenship, a permanent resident must:
Have been physically present in Canada for three years (1,095 days) out of the last five years. Have been physically present in
Canada for a minimum of 183 days in three of the last five years. Have filed a Canadian tax return in three of the last five
years. Demonstrate the intent to live in Canada (controversial – some immigration lawyers worry that people who get
citizenship and then reside outside Canada may have citizenship taken away because they misrepresented their intent to live
in Canada).
Bars to citizenship: A permanent resident cannot become a citizen if:
is under a probation order, on parole, or serving a sentence for a criminal offence. is subject to a removal order. is a declared
threat to national security or a member of organized crime. has misrepresented a relevant matter regarding her citizenship
application. has been refused citizenship in the last five years. has ceased to be a citizen in the last ten years. has had her
citizenship revoked.
The Minister of Citizenship and Immigration does have the authority to waive these bars.
Citizenship process: A permanent resident submits an application to a Case Processing Centre.
If the paperwork is in order and the fee is paid, the person will be asked to attend an interview with an IRCC officer
This interview will include an assessment of the residency requirement, a language assessment by the officer, and the
administration of the citizenship test.
If the officer has concerns about the residency requirement, the applicant will be referred to an interview with a citizenship
judge, who makes a decision about whether the residency requirement has been met.
If all requirements are met, oath is taken at a citizenship ceremony and the person may be issued a certificate of citizenship.
Losing citizenship: Until recent amendments, the only way for citizenship to be taken away was if the government could
establish that the person obtained citizenship by way of fraud or misrepresentation.
No revocation is possible for Canadian citizens by birth.
Citizenship revocation usually involved war criminals; people guilty of crimes against humanity who had lied on their
applications for permanent residence or citizenship.
New legislation – citizenship can be taken away if a naturalized citizen with multiple citizenships is involved in terrorism or
armed conflict against Canada.
A citizen may voluntarily renounce citizenship.
Lecture 10
Immigration Enforcement: Up to now we’ve been looking at how the government deals with applications – for refugee
status, for permanent residence, for temporary residence. The government also may take enforcement action against
foreign nationals or permanent residents who are in Canada and who may be inadmissible. The ultimate goal of immigration
enforcement is generally removal, although there are also criminal offences in IRPA which may be investigated by CBSA
criminal investigators, resulting in criminal charges.
Immigration enforcement players: Canada Border Services Agency
A CBSA officer may believe that a person in-Canada is inadmissible and initiate removal proceedings
A CBSA officer may initiate detention, conduct investigations, search and seize, and has some criminal investigatory
authority.
Immigration and Refugee Board: Immigration Division of the IRB conducts admissibility hearings. Immigration Division does
detention reviews if a person is detained for immigration purposes.
Inadmissibility: The trigger for enforcement action is a CBSA officer having an opinion that a foreign national or permanent
resident is inadmissible. Remember that some grounds of inadmissibility (like regular criminality) do not apply to permanent
residents, only to foreign nationals. An officer who is of the opinion that a foreign national or permanent resident is
inadmissible may write a report pursuant to section 44 of IRPA (a s. 44 report)
Section 44 report: A written form including:
Date and place it was made. Narrative of the facts that give rise to the allegation of inadmissibility. Specific ground of
inadmissibility. Foreign national/permanent resident’s biographical data. Immigration status of the foreign
national/permanent resident. Must be signed by the officer preparing it and a copy given to the person named in the report.
Section 44 report: Subsection 44(1) – a report alleging inadmissibility shall be transmitted to the Minister
Subsection 44(2) – if the Minister believes the report is well-founded, the Minister may either:
refer the report to the Immigration Division for an admissibility hearing,
or, for certain grounds of inadmissibility, issue an administrative removal order directly.
The Minister”: For the purposes of subsection 44(2), the Minister’s duties are delegated to senior CBSA officers (referred to
as “Minister’s Delegates”). Minister’s Delegates are found in most ports of entry and at inland CBSA offices.
Discretion: The officer “may” choose to write a report – in minor cases at a port of entry, the officer may instead allow the
person seeking entry to withdraw their application.
In minor inland cases an officer may decide to not write a section 44 report if the person is likely to leave Canada soon.
Minister’s Delegates “may” refer the report or “may” issue an administrative removal order – even if they are of the opinion
that the report is well-founded, the Minister’s Delegate may still elect not to proceed (e.g., if the person is a long-term
permanent resident, the inadmissibility is relatively minor, and/or the person is not likely to do anything else to render them
inadmissible).
Problem: current administrative law says that where an administrative decision-maker “may” do something, the decision-
maker must engage in a Charter analysis.
Referral to the Immigration Division: For many grounds of inadmissibility (almost all that would apply to permanent
residents), the Minister’s Delegate refers the matter to the Immigration Division.
The Immigration Division schedules an admissibility hearing and sends a notice of hearing to the person concerned.
The hearing is presided over by a single member of the Immigration Division.
Admissibility Hearing at the Immigration Division: Person concerned will be present (but may be via videoconference if in
detention); they have the right to counsel (anybody if unpaid; lawyer/consultant/Ontario paralegal if paid).
Minister’s Counsel (a CBSA Hearings Officer) will present the evidence supporting the allegation of inadmissibility.
Also, possibly present: interpreter and witnesses, designated representative if the person is a child or not competent.
Admissibility Hearing at the Immigration Division: Presiding member will start the hearing by making an opening statement.
Parties identify themselves for the record and interpreters are sworn in. Presiding member will explain the consequences to
the person concerned. Hearings officer will present evidence and question the person concerned, as well as call witnesses if
required. Counsel for the person concerned then gets to question the person concerned and bring evidence/call witnesses.
Admissibility Hearing at the Immigration Division: Minister’s counsel will try to establish the facts underlying the
inadmissibility. Minister’s counsel will also explain why these facts render a person inadmissible:
For some inadmissibilities this is relatively easy – for inadmissibility for criminality due to a foreign conviction,
simply a matter of presenting the conviction and establishing an equivalency, for example
For other inadmissibilities like security, this may be more difficult; Minister’s Counsel may need to interpret/define
terms like “membership” or “terrorism”
Admissibility Hearing Standard of Proof: Standard of proof is what is written in the specific section of IRPA describing the
inadmissibility. usually “reasonable grounds to believe”.
exception: “balance of probabilities” is the standard of proof on inadmissibility for criminality/serious criminality for having
committed an act which constitutes an offence in both Canada and the place where it occurred.
Admissibility Hearing Burden of Proof: If the person concerned was admitted into Canada lawfully, the burden rests on the
Minister’s Counsel to satisfy the Immigration Division member that there are reasonable grounds to believe the person is
inadmissible. If the person concerned was not admitted into Canada lawfully, the burden rests on the person concerned to
convince the Immigration Division that there are no reasonable grounds to believe he/she is inadmissible.
Admissibility Hearing possible decisions: At the end of the hearing, the presiding member can:
Recognize the person is a Canadian citizen or registered Indian (and therefore has a right to remain in Canada).
Grant permanent or temporary resident status if satisfied the concerned person meets the requirements of IRPA.
Authorize the concerned person to enter or remain in Canada for further examination.
Issue a removal order to a foreign national who did not enter Canada lawfully if not satisfied he/she is not inadmissible.
Issue a removal order to a foreign national who entered Canada lawfully or permanent resident if satisfied he/she is
inadmissible.
Removal orders issued by the Immigration Division: If a removal order is issued, the Immigration Division provides a
signed, dated copy of the notice of decision, a copy of the removal, and if the person concerned has a right of appeal, a
notice of appeal rights.
The person concerned also gets a notice of the right to seek judicial review at the Federal Court.
Administrative removal orders: For some grounds of inadmissibility, listed at section 228 of the Regulations, the Minister’s
Delegate does not refer the matter to the Immigration Division for an admissibility hearing.
Instead, the Minister’s Delegate can issue an administrative removal order on the spot.
These are generally inadmissibilities that don’t require a lot of legal interpretation, based on facts that can be easily
confirmed. Most only apply to foreign nationals, not permanent residents.
Administrative removal orders for foreign nationals only: Inadmissibility of a foreign national for section 36 (criminality or
serious criminality) based on a conviction in Canada.
Inadmissibility of a foreign national for section 41 (failing to comply with a requirement of the Act) based on:
Failing to appear for an examination or hearing.
Failing to obtain an authorization to return to Canada if required by s. 52 of IRPA.
Failing to have required visa or other document before entering Canada pursuant to s. 20 of IRPA.
Failing to leave Canada at end of authorized stay.
Failing to comply with any conditions imposed upon entering Canada as a temporary resident.
Administrative removal orders for permanent residents and foreign nationals:
Inadmissibility for section 40 (misrepresentation) based on a decision to vacate refugee status.
Inadmissibility for section 40.1 (cessation of refugee status).
Inadmissibility for section 41 (failure to comply with a requirement of the Act) for failing to comply with residency
requirement (permanent residents only).
For permanent residents, all other inadmissibilities must be dealt with at the Immigration Division.
Different types of removal order: Departure order: Departure order – section 224 of the Regulations. This is an order
requiring a person to leave Canada (and confirm their departure with a CBSA officer) within 30 days.
No restrictions on the person re-applying to come to Canada after leaving on a departure order.
Different types of removal order: Exclusion order: Exclusion order – section 225 of the Regulations.
Prevents a person from re-applying to come to Canada for a period of one year (or, if removed for misrepresentation, for
five years).
Automatically issued if the inadmissibility was for: health, financial reasons, misrepresentation, failure to appear,
failing to comply with residency obligations, failing to establish that a person will leave at the end of their authorized stay.
Different types of removal order: Deportation order: Deportation order – section 226 of the Regulations.
Permanently prevents a person from re-applying to come to Canada unless they get written consent of the Minister and an
Authorization to Return pursuant to section 52 of IRPA
Automatically issued if the inadmissibility was for:
security, war crimes/crimes against humanity, criminality or serious criminality, organized criminality, revocation of
citizenship because of misrepresentation.
Deemed deportation order:
If a person on a departure order does not leave within 30 days, the departure order becomes a deportation order, unless:
Departure order was conditional (given to refugee claimants at ports of entry), Departure order is stayed, Person subject to
the departure order has been detained.
Stay of removal: Although a removal order may have been issued, it can not be enforced if it is “stayed”
A stay occurs when:
The Minister stays removal to a particular country or region (usually because of conflict/disaster) – ss. 230(1) of Regulations
– can’t be done if inadmissibility is for security, war crimes/crimes against humanity, serious criminality or organized
criminality or a refugee rejected for 1F of Refugee Convention.
A failed refugee claimant seeks judicial review to the Federal Court – s 231 of Regulations
While a Pre-Removal Risk Assessment determination is pending
Humanitarian and compassionate considerations or public policy considerations exist.
While an appeal is pending before the Immigration Appeal Division.
Administrative deferral of removals (ADR): Temporarily defer removals in situations of humanitarian crisis.
Certain regions in Somalia (Middle Shabelle, Afgoye, and Mogadishu), the Gaza Strip, Syria, Mali, the Central African
Republic, South Sudan, Libya, Yemen, Burundi, Venezuela, and Haiti.
Temporary suspension of removals (TSR): Interrupts removals to a country or place when general conditions pose a risk to
the entire civilian population.
TSR in place for Afghanistan, the Democratic Republic of Congo, and Iraq
***An individual who is not allowed into Canada on grounds of criminality, international or human rights violations,
organized crime, or security can still be removed despite ADR and TSR.
Judicial stay of removal:
A stay can also be ordered by the Federal Court pending a decision on any application in progress, even if IRPA does not
otherwise provide for it (e.g.; pending H & C application; pending Judicial Review for non-refugee claimants).
Applicant has to meet the “tripartite test” outlined in Toth to get a stay from the Federal Court:
There is a serious issue being dealt with in the application in progress, The applicant would suffer irreparable harm
if the stay is not granted, The balance of convenience favours the granting of a stay.
Enforceable removal orders:
Removal orders are enforceable (for non-refugee claimants), pursuant to section 49 of IRPA:
The day the removal order is issued, if there is no right of appeal
The day the appeal period expires, if there was a right of appeal but the person concerned failed to file an appeal
The day the Immigration Appeal Division upholds the removal order, if the person concerned did appeal
If the person being removed is a refugee claimant, the removal order becomes enforceable 49(2) IRPA:
7 days after their claim has been found ineligible to be referred to the Refugee Protection Division
15 days after a refusal by the Refugee Protection Division
15 days after a claim has been withdrawn or abandoned
15 days after a refused appeal before the Refugee Appeal Division.
Removals: A person being removed may have the right to apply for a Pre-Removal Risk Assessment before the actual
removal. A Pre-Removal Risk Assessment application stays the removal.
A person being removed may seek other remedies (which do not automatically stay the removal), including:
Humanitarian and Compassionate application, Ministerial Relief, Judicial Review of the decision of the Immigration Division
(or the Immigration Appeal Division, or the Refugee Protection Division or the Refugee Appeal Division as applicable),
Application for a judicial stay pending any of the above.
Removals: The majority of removal orders are departure orders which are complied with without CBSA involvement; the
person leaves voluntarily. If the person being removed doesn’t leave voluntarily (or the removal order is an exclusion or a
deportation order), CBSA will schedule a removal. The person is called in for an interview to check that they have proper
travel documents and to ensure there is nothing that would prevent a removal.
At the interview, the person being removed is told to report to a CBSA officer at a port of entry in order to be removed.
Removals: Removals are prioritized by seriousness of the inadmissibility. Security risks or criminals will have priority over
removals for relatively minor inadmissibilities.
A CBSA Removals Officer has limited discretion to defer a removal “if the removal is not practical”; usually limited to things
like medical difficulties but can be used to ensure a child finishes the school year, etc. If a person does not report for
removal, a warrant will be issued for their arrest. Officers may accompany the person on the plane if needed.
Removals: Section 241 of the Regulations provide that a person may be removed to:
The country of citizenship, The country of habitual residence, The country the person came to Canada from, The country of
birth. If removal to all of the above is impossible, the person can be removed to any country which will take the person.
Enforcement powers of CBSA officers: Port of Entry searches:
Section 139 of IRPA provides that an officer at a port of entry may search a person, the person’s luggage, or the person’s
mode of transportation if the officer has reasonable grounds to believe the search will reveal evidence concerning the
person’s inadmissibility or identity.
S. 139 also allows the officer at a port of entry to search if there are reasonable grounds to believe the search will reveal
evidence of a criminal offence in IRPA.
Normally a search for evidence to be used in criminal proceedings would require a warrant; the Supreme Court in Simmons
held that a warrant is not needed at a border because people have reduced expectation of privacy at ports of entry.
Enforcement powers of CBSA officers: searches
Question: how far is a CBSA officer allowed to go in searching electronic devices like cell phones/laptops/tablets?
Courts are still not clear – some decisions say a warrant would be needed to search and seize electronic devices and look at
the data, other decisions say that they can be examined cursorily, other decisions say that they can be thoroughly searched.
Outside a port of entry, CBSA officers have no special search authority. CBSA officers designated as peace officers must get
a warrant to search a person or place (except as incident to a lawful arrest).
Enforcement powers of CBSA officers: searches
Question: can a CBSA officer get a search warrant to look for evidence of inadmissibility (as opposed to evidence of a
criminal offence) outside a port of entry?
Nothing in IRPA authorizes a CBSA officer to obtain a search warrant.
CBSA officers must therefore get a search warrant under the Criminal Code. The purpose of such a warrant is limited to
looking for evidence of a criminal offence. In other words, there is no legal provision for a CBSA officer to search for
evidence of inadmissibility outside the port of entry setting.
Enforcement powers of CBSA officers: arrest and detention at a port of entry: Subsection 55(3) of IRPA provides that an
officer may detain without a warrant any permanent resident or foreign national:
In order to ensure the person will be available for further examination. If there are reasonable grounds to believe that the
person is inadmissible for security (s. 34), war crimes/crimes against humanity (s. 35), serious criminality (ss. 36(1)) or
organized criminality (s. 37).
Enforcement powers of CBSA officers: arrest and detention anywhere in Canada: Subsection 55(1) of IRPA provides that
an officer may detain without a warrant a foreign national, other than a protected person, and
Subsection 55(2) of IRPA provides that an officer may issue a warrant for the detention of a warrant a protected foreign
national or permanent resident:
If there are reasonable grounds to believe the person is inadmissible and either
Unlikely to appear for further proceedings (a flight risk) or A danger to the public.
Consequences of detention: An officer must review the detention within 48 hours of the initial detention in order to
determine whether the reasons for the detention still exist.
The detaining officer must notify the Immigration Division so that they can hold a detention review.
Detention review at the Immigration Division: S. 57 of IRPA provides that the Immigration Division must hold a detention
review within:
48 hours after the initial detention. 7 days after the first detention review. Every 30 days after the second detention review
Exception for people who have been automatically detained because they are Designated Foreign Nationals (part of a
Designated Irregular Arrival); they get a detention review:
Within 14 days after the initial detention. Every six months after the first detention review.
Although this theoretically allows potential indefinite detention, courts have held that the detention review scheme does
not violate the Charter so long as there are continued “meaningful” reviews.
Detention review at the Immigration Division: Immigration Division determines whether the person is still a flight risk or a
danger to the public or whether identity has been established.
If not satisfied that the person remains a flight risk or a danger to the public or that identity has not been established, the
Immigration Division must release the person from detention.
The Immigration Division will continue detention only if satisfied that the person is still a flight risk or a danger to the public
or identity has not been established. If they are satisfied, then they may:
Order continued detention. Release on terms and conditions (e.g., guarantee or bond/reporting conditions/electronic
monitoring).
Detention review at the Immigration Division: Flight risk
The factors the Immigration Division may examine when determining whether a person is or remains a flight risk include:
whether the person is a fugitive from justice in another country. whether the person has complied with previous departure
orders.
whether the person has shown up at previous immigration proceedings. whether the person has complied with previous
immigration conditions.
whether the person has strong community or family ties. whether the person has the means to avoid proceedings
whether the person has involvement in human smuggling or trafficking.
Detention review at the Immigration Division: Danger to the public: The factors the Immigration Division may examine
when determining whether a person is or remains a danger to the public include:
whether the person is inadmissible for serious grounds such as security, war crimes/crimes against humanity, serious
criminality or organized criminality.
whether the person has a history of criminal activity or association with criminals. whether the person has a history of being
involved with victimization of vulnerable groups. whether the person has a history of violence.
Detention review at the Immigration Division: Section 248 of the Regulations outline the factors that must be considered
by the Immigration Division in a detention review:
the reasons for the detention. the length of time the detention has already gone on. the length of time the detention will
likely continue. whether there have been any delays caused by failure of either the person detained or CBSA to follow due
diligence. whether there are any alternatives to detention.
Security certificates:
Section 77 of IRPA provides that the Minister of Citizenship and Immigration and the Minister of Public Safety may sign a
certificate if satisfied that a foreign national or protected person is inadmissible for security, war crimes/crimes against
humanity, serious criminality or organized criminality. This is non-delegable; only the Ministers have this authority
A security certificate is referred to the Federal Court for a “reasonableness hearing.” If the Federal Court is satisfied that
there are reasonable grounds to believe the person is inadmissible for these reasons, their decision is deemed to be a
removal order.
Security certificates: At the time of signing the certificate, the Ministers may also issue a warrant for the detention of the
person named in the certificate.
Persons detained pursuant to a security certificate get their detention reviews at the Federal Court, not the Immigration
Division. Review is held with 48 hours and then every six months.
A security certificate is referred to the Federal Court for a “reasonableness hearing.” If the Federal Court is satisfied that
there are reasonable grounds to believe the person is inadmissible for these reasons, their decision is deemed to be a
removal order.
Security certificates: Reasonableness hearings and detention reviews before the Federal Court for people named in a
security certificate involve the Court considering evidence that can’t be released publicly.
The government will show a Federal Court judge the evidence. If the judge accepts that release of the evidence would
injure national security, they will allow a sanitized summary of the evidence to be provided to the person concerned. Since
the Charkaoui decision, the person concerned has a “special advocate” assigned to them – a top-secret cleared lawyer who
can view the classified evidence and challenge it. This is done without the person concerned being present; the special
advocate does not meet with the person concerned.
Security certificates: Security certificate program has been around since Immigration Act 1976.
Originally used mostly to successfully remove Soviet Bloc spies without evidence against them being made public.
Since fall of Soviet Union, has been used to attempt to remove suspected terrorists – with considerably less success.
Security certificates since 2000: TERRORISM RELATED:
Mahjoub: certificate signed in 2000; reasonableness decision still pending, released from detention on terms and conditions
Almrei: certificate signed in 2001; Federal Court found the certificate unreasonable in 2009
Iklef: certificate signed in 2001; removed to Algeria in 2003 (he alleges he has been tortured by security forces there)
Jaballah: certificate signed in 2001; reasonableness decision still pending; released from detention on terms and conditions)
Harkat: certificate signed in 2002; found reasonable in 2010; released from detention on terms and conditions and is
alleging risk of torture if removed
Charkaoui: certificate signed in 2003; dropped when government refused to release evidence publicly)
NON-TERRORISM RELATED:
“Hempel”: Russian spy; certificate signed in 2006; probably removed to Russia 2006.
Zundel: hate-speech purveyor; certificate signed in 2003; removed to Germany 2005.
Security certificates – problems surrounding removal:
Most suspected terrorists named in security certificates are citizens of countries with poor human rights records. Mahjoub
and Jaballah are citizens of Egypt; Almrei is a citizen of Syria; Charkaoui is a citizen of Morocco and Harkat is a citizen of
Algeria.
All of the above have argued that they would be subject to torture or other cruel or unusual treatment or punishment if
removed.
Although IRPA (and the Suresh case) allow removal to a risk of torture if the person poses enough of a danger to Canada,
none of these recent terrorism-related security certificates have resulted in removal. Rather than argue that they
constitute “exceptional cases”, the government has tried to argue that none of them face an actual risk.
Protecting sensitive information at the Immigration Division: Even if the proceedings aren’t made by way of a security
certificate, evidence can be protected against disclosure at the Immigration Division in both admissibility hearings and
detention reviews.
The Immigration Division may consider the evidence without the person concerned being present. If necessary, it may
appoint a special advocate.
Same problem may arise as in security certificate cases – a person may be inadmissible for terrorism, etc., but cannot be
removed because they face a risk of torture or other cruel/unusual treatment or punishment (also a problem for PRRA).
“Undesirable and unremovable”: There are people who have been found inadmissible for serious reasons (or who have
been excluded from refugee protection) but who cannot be removed because they face a risk of torture or other cruel or
unusual treatment or punishment.
People in this situation cannot be removed, but also cannot become permanent residents (therefore have no path to
become Citizens or sponsor relatives).
Detention not a permanent solution, nor is “house arrest”. One possible solution (used by U.S.) – “diplomatic assurances”
that a person being removed won’t be executed, tortured or otherwise mistreated.
Criminal offences under IRPA: CBSA officers designated as peace officers may investigate and arrest for certain offences
found in sections 117 to 136 of IRPA. CBSA officers are not peace officers for other offences (such as Criminal Code
offences).
Criminal offences under IRPA: Human smuggling (hybrid; maximum sentence 14 years/$1,000,000)
Human trafficking (indictable; maximum sentence life/$1,000,000)
Disembarking a person at sea (indictable; maximum sentence life/$1,000,000)
Possess false documents (indictable; maximum sentence 5 years)
Using false documents (indictable; maximum sentence 14 years)
Import/export/deal in false documents (indictable; maximum sentence 14 years)
Contravenes the Act (hybrid; maximum sentence of 2 years/$50,000)
Escapes custody (hybrid; maximum sentence of 2 years/$50,000)
Counsels misrepresentation (hybrid; maximum sentence of 5 years/$100,000)
Misrepresentation (hybrid; maximum sentence of 5 years/$100,000)
Bribery/obstruction of an officer (hybrid; maximum sentence of 5 years/$50,000) Refugee claimants cannot be
charged with offences relating to their arrival in Canada if the action was needed to escape persecution.