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1 IMMIGRATION LAW SUMMARY 3) FAMILY CLASS IMMIGRATION IRPA s. 13-14 Regs s/ 116-120, 130-137 Baker, Horbas, Mangat What is the rational behind the family class? How has the family class evolved over the years? What factors affect the debate around the composition of the family class? What steps have been taken in recent years to change the nature of the sponsorship undertaking? A13(1) Family class immigration fulfills one of objectives of immigration which is family reunification: people should have the right to have their family together. Once you have your sponsor, then not necessary to meet the points applicable to other categories of PR application. o Instead of exempted from other conditions, family class immigration has its own requirement. TWO BROAD ISSUES FOR DETERMINATION WHETHER SPONSORSHIP WILL GO THROUGH a) Does the sponsor meet the qualifications to become a sponsor? b) Is the applicant (sponsored from abroad) a member of the family class, who is not otherwise excluded by the Act? 1) WHO MAY SPONSOR? A13 allows every PR or Canadian citizen to sponsor foreign nationals who is member of the “family class” to give them permanent residency. Sponsor Requirement: R130, 131 and 133: in general allow any Canadian citizen or permanent resident to sponsor who: 1) 18 years or older R130(1)(a) 2) resides in Canada R130(1)(b) ० R130(2): sponsor not residing in Canada can sponsor an application made by their spouse, CL partner, conjugal partner or dependent child (exempting mother, father or grandmother/father) who has no dependent children if the sponsor will reside in Canada by the time the applicant becomes a PR. 3) gives the Minister or competent authority of the province the required undertaking to provide for the applicant R131 4) intends to fulfill the undertaking R133(1)(b) 5) is not subject to removal order R133(1)(c) 2 6) is not in jail, penitentiary, reformatory or prison R133(1)(d) 7) has not been convicted within or outside Canada of sexual offences or certain other specified offences against relatives or spouses’ relatives = domestic violence/sexual abuse R133(1)(e) Exceptions to disqualification due to conviction: In Canada R133(2)(a) acquittal or pardon R133(2)(b) 5 or more years have passed, since you’ve completed your sentence referred to in s.133(1)(e) 8) has not been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence referred to in para. (e) R133(1)(f) Exceptions to disqualification Outside Canada R133(3)(a) acquittal R133(3)(b) five years passed since completion of the sentence for the offence referred to in s. 133(1)(e) and the sponsor showed that he is rehabilitated 9) is not in default of i) any previous undertaking ii) any support payment obligations ordered by a court R133(1)(g) Default • R135: default of a sponsorship undertaking (a) begins when i. government makes a payment that the sponsor has in the undertaking promised to repay ii. obligation set out in the undertaking is breached (b) ends i. reimburses the gov’t in full for amounts paid by it ii. ceases to be in breach of the obligation 10) is not in default of any debt owed as a result of A145(1) (debts, loans, undertakings incurred through the immigration process you owe to the government) R133(1)(h) 11) is not an undischarged bankrupt under the Bankruptcy and Insolvency Act R133(1)(i) 12) meets the test for minimum necessary income R133(1)(j) minimum necessary income, its set by Stats Canada, depends on if you live in a big city and how many people are in your family Exception from having minimum required income, s.133(4) if (a) person to be sponsored is sponsor’s spouse, CL or conjugal partner with no dependent child (b) person to be sponsored is sponsor’s spouse, CL or conjugal partner has ONE dependent child who has no dependent child(NOTE: the spouse cannot have two or more dependent children) (c) the person to be sponsored is a dependent child of the sponsor, and this 3 dependent child has no child of his/her own or a person referred to in paragraph 117(e) – guardian or (g) – intended adoption Income Calculation Rules • R134(1): total income of the sponsor shall be determined (a) On the basis of the last notice of assessment in respect of the most recent taxation year. (b) Not including i. Any provincial allowance ii. Social assistance from a province iii. Financial assistance from Gov’t of Canada iv. EI payment v. Income supplement under Old Age Security Act vi. Canada Child tax benefit 13) not in receipt of social assistance, other than for reasons of disability R133(1)(k) 2. WHO CAN BE SPONSORED? R117(1): foreign national is a member of the family class, if the foreign national is (a) sponsor’s spouse, CL partner or conjugal partner (b) dependent child (c) mother or father (d) mother or father of the sponsor’s mother or father A) SPOUSES, OR SPOUSE-LIKE PERSONS (COMMON LAW OR CONJUGAL PARTNER) The concept of spouse has been expanded to include spouses, common-law spouses and conjugal partners. Horbas: the test for disqualifying the spouse was that the marriage entered into by the sponsored spouse i. must not have been undertaken primarily for purposes of immigration and ii. this sponsored spouse must have intention to reside permanently with the other spouse R4: Bad Faith. The applicant will be refused if marriage or adoption i. entered into primarily for the purpose of acquiring any status or privilege under the Act, or ii. is not genuine in any other way R117(9): Excluded Relationship: FN shall not be considered as (a) spouse or CL partner if FN under 16 years (c) spouse if i) at the time of their marriage FN was the spouse of another person. ii) Sponsor has lived separate from FN for at least 1 year and is CL partner of another person. 4 o Note from class: Reg 117(9)(d): You are precluded from sponsoring if the sponsor previously made an application for PR and became a PR and, at the time of that application, the FN was a non-accompanying family member or a former spouse or former CL partner of the sponsor and was not examined. o Life time penalty. Rational is to penalty people for not disclosing the fact. As a lawyer, you can make argument that Charter 7 right was infringed argument that Bill of right infringed argument that Ultra vires of S3 of the Act is infringed: it has nothing to do with defining a family class. What it really is ab out punishing people for misrepresentation which R40 already d oes. R132(1)(b)(i): Duration of sponsor’s undertaking= 3 years following the day on which the FN becomes PR. It has been reduced to 3 years from 10 years. This reduction is for benefit of sponsored women to prevent spousal abuse. B) DEPENDENT CHILDREN R1(1) Definitions ii. if they are sponsor’s biological or adopted children, under 22 years of age and not in a spousal or spouse-like relationship, OR iii. if they are biological or adopted children who are financially dependent on a sponsor and since the age of 22 have been continuously enrolled in post- secondary institution, whether or not they are married and in a spousal or spouse-like relationship and whether or not they are above 22, OR iv. biological/adopted children above 22 years, but have some form of disability that makes them financially dependent Duration of undertaking o R132(1)(b)(ii) under 22 years when FN becomes PR: will be the earlier of 10 years OR the age of 25 o R132(1)(b)(iii) over 22 years when FN becomes PR: 3 years C) Others (Parents or grandparents) • Duration of undertaking: 10 years after FN becomes PR. E) INTENDED ADOPTEES must be under 18 years of age + adopted not just to come to Canada + adoption must satisfy relevant Canadian laws and international treaties, ex. Hague Convention on International Adoption Excluded Relationships Cont’d R117(9)(d): No foreign national may be considered a mbr of the family class by virtue of their relationship to a sponsor if the sponsor previously made an application for PR and 5 became a PR and, at the time of that application, the FN was a non-accompanying family member or a former spouse or former CL partner of the sponsor and was not examined. Sponsorship Undertaking • Duration: R132(1): the sponsor’s undertaking obliges the sponsor to reimburse every benefit provided as social assistance to FN and family members during the time (a) beginning (i) FN with temporary resident permit, on the day of that entry (ii) if FN in Canada, on the day FN obtains a temporary permit after an application to remain in Canada as a PR. • Agreement: R132(4): Sponsors have to enter into a written agreement that includes (a) sponsor will provide basic requirements of the person and accompanying family mbrs (c) they will make every effort to provide aforementioned things. • Co-Signature Undertaking: R132(5): the sponsor’s undertaking may be co-singed by the spouse or CL partner of the sponsor if the spouse or CL partner meets the requirements set out in R130(1), then (b) the co-singing spouse or CL partner is jointly and severally or solidarily bound with the sponsor to perform the obligations in the undertaking and liable with the sponsor for any breach of those obligations. • Approved Sponsorship Application: R120 (a) PR visa shall not be issued unless a sponsorship undertaking is in effect (b) FN shall not become PR unless sponsorship undertaking is in effect and the sponsor who gave undertaking still meets the requirements of R133. Suspension During Proceedings Against Sponsor or Co-Signer • R136(1): if any of the following proceedings are brought against a sponsor or co-signer, the sponsorship application shall not be processed until there has been a final determination of the proceeding (c) an application for revocation of citizenship (c) a charging alleging the commission of an offence. Critical dates for application success: • R133: under the new Act, the sponsor and the applicant must meet the tests that are applicable to them both at the time they apply and at the time the applications are determined (the old Act only said you had to qualify at the time of application) Mangat (2003) Facts The appeal division had upheld the decision of the of a visa officer who said that Mangat’s husband wasn’t eligible for entry into Canada because their marriage was one of convenience under the test in Horbas. Decision: application allowed Held 6 • Appeal division had erred in failing to consider the evidence of a party who had helped arrange the marriage in India and who knew the couple well. The evidence of this party, as well as certain documentary evidence, contradicted the appeal division’s finding. Instead appeal division in basing its decision solely on the testimony of Mangat and her husband. • The board should have expressed its reasons for failing to give any weight to the other evidence particularly where the evidence directly contradicted the appeal division’s decision. • Agency’s burden of explanation increases with the relevance of the evidence in question to the disputed fact. Problem I. Sumandeep gets married in an arranged marriage--she comes to Canada in 1998. A week after the marriage she separates from her husband and files for divorce some months later. She states on the divorce petition that she separated one week after arrival. She then returns to India a few months after the divorce is granted in 1999 and marries again. She returns to Canada and initiates a second sponsorship. Her husband is called in for an interview. He admitted that he knew that his wife had divorced but denied any knowledge of the circumstances. When he was asked questions about the divorce, the arrangements for the marriage and his wife's activities in Canada he could provide only vague general answers. The officer refused the application finding that the relationship was not credible due to the lack of knowledge of the applicant of the sponsor. Mrs. Mangat appeals to the Appeal Division. 1. What type of hearing is the appeal before the Appeal Division? 2. What is the key issue to be determined in the case? a. Whether the marriage was genuine 3. What are the problems that present themselves based on the information provided? a. Failed to consider the evidence of a party who had helped arrange the marriage in Indian and who knew the couple well. 4. What evidence would you call at the hearing? a. bring friends and write a declaration b. call priests and expert c. phonecall, letter that predates refusal, more correspondence, the better, pictures together d. call Sumandee as a witness 5. What other advice would you give you client? 7 4) Independent Immigrants and the Point System – Skilled Workers and Business Applicants) IRPA ss. 11-12, 21, 27-28 Regs ss. 73-109 • Economic Classes ० Skilled workers ० Caregivers ० Business immigrants Self-employed persons Entrepreneurs Investors i) SKILLED WORKER CLASS Rationale: to permit Canada to pursue the maximum social, cultural and economic benefits of immigration. Canada’s immigration policy sees economic classes as life-blood of Canadian economy and life, because the population is aging and we don’t have enough children born (no natural population growth) + we take the brightest people from all over the world, but computer analysts are driving cabs due to failure of Canada to recognize foreign degrees PROCESS to become a permanent resident, a skilled worker must apply for a permanent resident visa (before entering Canada). Why do you have to apply for a foreign visa first? Because no foreign national can enter without a visa. To apply for a visa, you must meet relevant selection criteria, and then you get granted a visa, and then you come to Canada, and satisfy the designated officer at the port of entry that you hold a valid permanent resident visa to get landed FEATURES IRPA operationalizes the general test of a person’s ability to become established in Canada. The point system is not the test, the final decision is up to the immigration officer – he can say that even if you got more then 67 points, you’re not likely to become established in Canada, or if you get less then 67 points, you can still come in because you’re likely to become established in Canada is the point system a good predictor of judging whether the person is likely to become established in Canada? No. Ex, some highly professional couple from England that scored well on the point system, is now working minimum-wage jobs 8 and lost all their savings and suing the government for false advertisement and making them believe that if they score high on the point system, they would easily become established in Canada To get accepted as skilled worker, an applicant should (generally under s.76(1)Regs): 1) Score the minimum of 67 points set by the Minister as “pass mark” + minimum one year of experience 2) Either have ½ of minimum necessary income set by Stats Can (depends where you’re moving and how many people are in your family) OR score points for arranged employment in Canada. Rational – you have to support yourself for 6 months on the $ you bring with you, or work in your arranged employment We have grid worth 100 points Pass mark is 67 points now S.73-85 of regulations Basic Criteria for Skilled Worker R75(1): provide criteria on how to judge skilled workers’ ability to become economically established in Canada o (2)(a) within last 10 years preceding the date of their application, you must have at least one year of full time work experience or its equivalent in part-time work. But this experience must have been gotten in an occupation listed in NOC (National Occupational Classification Matrix). o (2)(b) performed the actions described under NOC o (2)(c) performed a substantial number of the main duties of the occupation under NOC. o (3) If you don’t have this basic requirement in subsection (2), eg, one year employment experience, the officer won’t even look at your application, but will disqualify you right away. Selecting Criteria R76(1)(a): Education, language proficiency, experience, age, arranged employment, and adaptability. Education: R78 – 25 points allotted (so big factors) o Masters or PhD get 25 points (or equivalent to MA, PhD’s) Regulations state that degrees must be accompanied by certain number of years o 2 or more bachelor degrees – 22 points o 1 bachelor – 20 points o High school diploma – 5 points o Almost impossible to get in with anything less than high school education o Area of looking for skilled trades people still up in air Many areas of world where trade education still prevalent – but where it’s not high school 9 Language: R79 (24 points): gets tougher – has become more important in terms of points offered o Both official languages o A maximum of 16 points for proficiency in the “first” official language o A maximum of 8 points in the “second” official language. o Highest proficiency (reading, writing, listening, understanding) – 16 points o Standards have gone up in language because of testing service used – IELTS very difficult test Good news is that test is objective Until Burpa, very subjective: would be asked in immigration forms how good their language skill was Resulted in interviews to settle issues or uncertainties Experience: R80 (15-21 points) Within 10 years preceding the date of application o O year =0; 1 year = 15 points; 2 year = 17; 3 year = 19; 4 years = 21 How to determine whether occupation skilled? o Should be in NOC under Skill Type “O” or Skill Level “A” and “B” Can go to index, look up occupation, there will be a number o Sometimes an occupation that may or may not be skilled depending on how you define it o Also, people who have different experiences, determining which ones are skilled and which ones not o One can have different experiences that combine as skilled experience Age: R81 (10 Points) Older than 21, less than 49 = 10 points Lose 2 points for every year under 21, over 49 Therefore more problems for those with higher age Arranged Employment: R82 (10) Latest attempt to match immigrants to economy Job offer Willing to offer 10 points on 2 grounds: o (a) Person coming from abroad is currently working in Canada with temporary work visa; OR This also adds 5 points to Adaptability o (c) The applicant does not intend to work in Canada before being issued a permanent resident visa and does not hold a work permit. But problem is wait time for potential immigrants is too long – employers will not wait that long If people working here, have more than 12 months left on work permit, have offer, then they get the 15 points – that’s more reasonable 10 Adaptability: R83 (10 Points) Relatives in Canada: R83(5) – 5 points Arranged employment – 5 points Previous work o R83(4): for at least 1 year of full time work in Canada under work permit Post-secondary school for 2 years under a study permit: R83(3), 5 points Spouse with PhD – 5 points, BA – 4, less – 3 Basically, welcome people who have been here Minimum income requirements for skilled workers Family of two $10,000, not much But other criteria and factors tend to skew toward affluent people Under new regulation, can only file application in visa office of country where you reside for over 1 year IMMIGRATION OFFICERS’ DISCRETION human judgment is often better then the point system, that’s why immigration officer has discretion to substitute their decision for the point system under s.76(3) Regs. s. 76(4) Regs = if im officer is using his discretion outside the point system, a second visa officer has to confirm that opinion. This is a weak limitation on discretion. Under the old Act, the visa officer had to be confirmed by senior immigration officer and provide written reasons. Because this is broad discretion, im officer has to: a) strictly comply with procedure + a visa officer in exercising that discretion must not consider anything other then the economic factors; b) moral issues are irrelevant in this case. SCC) c) visa officers can’t ignore relevant considerations in exercising their broad discretion. ii) BUSINESS IMMIGRANTS CLASS Rationale: To promote economic development and employment by attracting people with venture capital, business acumen and entrepreneurial skills. To develop new commercial opportunities and to improve access to growing foreign markets by “imposing” people who are familiar with those markets and their special requirements and customs To support provincial and territorial economic objectives business class is also authorized under s.12(2) IRPA (‘same as skilled workers) on the basis of their ability to become economically established in Canada 11 pass mark is 35 = outrageously low compared to skilled workers ???? but there are more stringent tests for meeting the definition of business class before they even get to the point system and that’s why the pass mark is lower in general, selection criteria for business immigrants are set out in the Regs. Why in general? Because the fed/prov agreement allows the provs to use their own selection criteria. To find those selection criteria, you go to prov law. And then fed im officers, are obliged to follow prov decision, upon presentation of a prov certificate. However, I think that presently only Quebec has its own selection program for economic applicants there are 3 major classes of Business Immigrants: 1) Self-employed Persons 2) Entrepreneurs 3) Investors First they apply for a PR (permanent resident) visa = they must meet relevant definition and relevant selection criteria, subject to discretion of im officer who can deny a visa even if you qualify Duty of fairness and discretion of immigration officers discussed under “skilled workers”, applies to business class as well. S. 109 Regs talks about officer’s discretion specific to business immigrants however, the rule that skilled workers must meet that relevant selection criteria both at the time of lodging their application and at the time the visa is issued, does not seem to apply to business immigrants. This makes sense for investors, because we have already got money out of them before their visa is issued. It also makes sense for entrepreneurs because within 3 years of landing, they should create at least one job for Can citizen or PR that are not their family members, so they can’t satisfy the condition at the time of application. However, that does not make so much sense for self-employed people. Ex. what if you’re some singer, who in 3 years after they apply, are no longer popular, and have no net worth and would no longer be able to benefit our economy? What’s the point of waiving the condition of satisfying the requirements both at the time of application and at the time of issuing a visa for them? It might be argued that they are the kind of people that we want anyway 1. SELF-EMPLOYED PERSONS R100(2) Minimal Requirements: Meeting the Definition R88(1): self-employed = has the “relevant experience” and has intention and ability to be self-employed in Canada and to make a significant contribution to specified economic activities in Canada “Relevant Experience” at least 2 years experience of self-employment in athletics, cultural activities, or farm management within 5 years before the date of application and ending on the day the application is decided, R88(1) 12 Why these specific areas? Because that’s what we need in Canada. Always think about need, when thinking about immigration. a) Athletics = you have to have a certain level of performance and success. It has to be at a world-class level b) Cultural activities = we want to enrich Canada’s multicultural character. This could mean classical Indian dancing, not just ballet. Cultural Activities also have to be at a world-class level c) Farms = we don’t want all the people to live in urban areas, but we want them to go to rural areas, which is probably what farm experts are going to do. Also we need people to grow food domestically + modernization of farm technology. This is better then making them sign agreements that they will live in certain areas. But gov’t can’t really monitor whether people set up a farm, they just hope that this is what people are going to do However such experience must have been obtained in the period constituted by 5 years immediately before the application was lodged and the time it took to process the application. o Ex. someone applied in June 1980. It took 2 years to process the application. That person got their PR visa in June 1982. The relevant period of assessing whether they got 5 years of experience is bn June 1975 and June 1980. “Specified economic activities” cultural, athletic, purchase and management of a farm, s.88(1) Regs POINT SYSTEM According to s.108 Regs, the pass mark of 35 points is set by the Minister. However, the applicant must first satisfy the definition of “self-employed” person, before the IO will even look at his score on the point system the only difference from skilled workers is arranged employment, because applicants are going to be self-employed adaptability for self-employed is different from adaptability for entrepreneurs and investors 2. ENTREPRENEURS R97(2) Minimal Requirement: MEET THE DEFINITION R88(1) Entrepreneur = a foreign national who has o (a) business experience o (b) have a legally obtained minimum “net worth” o (c) states in writing to officer that he will be able to meet the conditions in R98 13 R98(1): (a) control at least 33 1/3 equity of a qualifying Canadian business; (b) provide active and ongoing management of that Canadian business; (c) create at least one additional full-time job for Canadian citizens or permanent residents who are other than his family members. (Family members are defined by the Regs as members of the Family Class. So if you hire your cousin, it’s OK) R98(3) these conditions must be met within 3 years of landing and you should meet them for at least one year. R98(4) when these conditions have been met, you must provide evidence of that in writing to the officer. R98(5) you’re supposed to keep the officer updated about your address and phone number and your efforts to meet the above conditions “Business experience” for entrepreneurs, s. 88(1)Regs R88(1) at least 2 years of experience obtained abroad in managing a “qualifying business” and exercising control over a percentage of the equity of that business within 5 years prior to submitting your application and getting the decision. “Net worth”, s. 88(1)Regs “net worth” of $300,000 Can in net assets Net assets = FMV (Fair Market Value) of what they own How does definition of “entrepreneur” differ from “self-employed person”? o Entrepreneurs has a set of conditions attached to their PR, but self-employed people don’t o Self-employed don’t have to establish a minimum net worth o Self-employed are limited to managing agricultural, athletic, sports areas, but entrepreneurs can manage whatever o Self-employed people don’t have to hire anybody, they just have to work themselves o Business experience POINT SYSTEM the point system applies here as well, but before you get to it, you must show that you qualify under the definition of entrepreneur the pass mark is 35 points and the Minister sets the mark 3. INVESTORS R90(2): Minimal Requirement: Meet the Definition there are no immigration conditions to be satisfied after becoming a PR for investors, but 3 Pre-Landing conditions 14 R88(1): investor must have o (a) business experience; o (b) a legally obtained net worth of at least $800,000; and o (c) indicated in writing to the officer that they intend to make or have made an investment (a) Business Experience: R88(1)(a) different from “business experience” for entrepreneur Must have managed a qualifying business and controlled the percentage of its equity for at least two years OR managed at least 5 full-time job equivalents (workers whose work amounts to 5 full time positions, ex. you can have 7 part time workers but their time together should amount to 5 full-time positions per year for at least 2 years) b) Legally obtained net-worth of at least $800,000 Can net-worth = total legally obtained assets – liabilities Minister has discretion c) Applicant must write to officer that she intends to invest in Canada “investment” = payment of CDN$400,000 by the applicant to the Minister for allocation to all of those existing provincial government controlled job creation or job continuation corporations that the Minister has approved = You pay the $ to Minister, who will allocate it to all government established corporations that create or continue jobs. This investment is not refundable for approximately 5+ years and returned to you without interest. The interest is used to create jobs in Canada o this investment is the condition precedent to granting of permanent resident visa to the investor applicant = you must satisfy this condition before you’re landed o Rational for not paying interest on this $ = the interest is used for job creation, and the justification for immigration of economic classes is that they should add to the economy. Note that in other situations, ex. if you pay last month or damages deposit to your landlord, he has to return it with interest o Does this mean that rich people are just buying PR? No, because they have to have managerial experience, etc. But we’re extracting rich people from 3rd world countries, that need those people much more than Canada How does definition of “investor” differ from definition of “entrepreneur”? They are both rich people, who are skilled managers, but: Business experience differs You need more money for investors (800,000 not 300,000) 15 Investors have to pay $400,000 to the Minister, while entrepreneurs have their own three conditions to be satisfied post-landing = investor comes already landed, but the entrepreneur has to satisfy conditions in land before getting landed Entrepreneur has to establish a business, while but investors indirectly fund the job market by giving $400,000 to the government POINT SYSTEM pass mark is 35 difference with skilled workers in the “business experiences” v. “relevant experience”; and in “adaptability”, where Entrepreneurs and Investors get points for business exploration trips to Canada and in participating in joint fed-prov business immigration initiatives IDEAL INVESTOR HAS: a) liquid capital = you can turn your assets into cash very quickly b) managerial experience for a number of years c) PhD, etc. = for points d) people who are able to lock up 400,000 for at least 5 years = you have to be really rich Policy for admitting business class in general and giving them such a low pass mark? we have to entice them to Canada + they have to meet the definition first + economic gain against: why make it easy on business people, who are not in urgent need to immigrate, as opposed to business people who can wait Duty of Fairness Kazi Facts Application for judicial review of a decision which provided a dismissal for his PR application under the independent category. IRPA was coming into force, and was assessed under the new reg, but applicant did not know. Since the new Reg have a retrospective application, he argued that the officer had a duty to inform him about the new criteria and to allow him to complete a new application. Held • IO should have informed him of the new criteria that IO will assess the applicant under before his assessment. The lack of proper notice constitutes a breach of the rules of natural justice or fairness. Ct found that public notice of new Reg was made several months after this application. Applicant cannot comply with, rely on, or take advantage of the law unless he knows the law before making a visa application. 16 • Visa officer should provide the opportunity to comment and to respond to evidence that has not been submitted by an applicant and upon which the visa officer intends to base his or her decision. Applicant should have been given the opportunity to provide additional information and to complete his application within a reasonable time period. Change in Skilled Worker Point System On September 18, 2003, the Government of Canada introduced a pass mark of 67 points governing the assessment of new applications and pending applications filed after December 31, 2001 under the Economic Class. The Government also announced the introduction of transition regulations permitting economic class applicants (skilled workers and business immigrants) who filed their applications for permanent residence BEFORE January 1, 2002, to be assessed under the former Immigration Act. Initially when the new Immigration and Refugee Protection Act was implemented in June 2002, the Canadian government planned to implement new selection criteria, under a retroactive mechanism with the objective of reducing a growing backlog of many thousands of pending cases (the “backlog cases”). The new immigration rules were intended to systematically refuse up to 100,000 backlog cases filed under the former immigration selection rules. In February 2003, the Federal Court ruled in the case of (Dragan v. Minister of Citizenship and Immigration, 2003 FCT 211), ordering the Canadian immigration authorities to assess 102 backlog cases under the old immigration rules before March 31, 2003. Most of the 102 applicants affected by the Dragan ruling have been approved. The ruling in the Dragan decision specifically found that the manner in which the new immigration rules were being introduced, to the prejudice of backlog cases, was improper. Beginning in March 2003 and throughout the summer of 2003 numerous claims were filed on behalf of affected applicants whose pending applications would likely be refused under the new immigration rules, demanding the Canadian immigration authorities to assess the backlog applications under more equitable selection criteria and eliminate retroactivity. On June 20 2003, a Federal Court judge imposed an injunction preventing CIC from refusing any pending application which was filed prior to January 1, 2002. On September 18, 2003 the Minister of Citizenship and Immigration introduced new measures for assessing economic class applicants as well as transitional measures for the assessment and processing of pending applications in the Economic Class, filed before January 1, 2002. In effect the plan to implement the new immigration rules with retroactive effect, has been abolished. 17 WHAT DOES THIS MEAN? 1. Effective immediately, the pass mark for new skilled worker applicants is 67. 2. Effective immediately, applications currently in the system that have not yet received a selection decision, will be assessed with a pass mark of 67. 3. Pending applications filed before January 1, 2002 will no longer be subject to retroactivity and will be assessed under the former Immigration Act. Applicants who do not qualify under the former Act will then be assessed under the current Immigration and Refugee Protection Act, with a pass mark of 67. 4. Applicants who submitted an application for permanent residence after January 1, 2002 and who have been refused on the basis of the previous pass mark of 75, may be entitled to have their applications re-opened and re-assessed under the new pass mark of 67. Problem a. Mr. Smith wishes to apply under the skilled worker programme. He has a bachelor’s degree from a four year programme, speaks fluent English, has five years experience as a Microbiologist. He is thirty two years of age and single. Does he qualify under the Skilled Worker Programme. What advice might you give him to assist him in meeting the requirements? b. After Mr. Jones applies he comes to see you. He advises that he filed his application in May, 2001 and that his application was refused under the new points system. He advises that his application has been refused and that it was refused without giving him any opportunity to respond to any concerns. What options are open to him? • Apply for judicial review since no appeal right under IRPA • Breach of natural justice according to Kazi: ० IO should have provided the opportunity to comment and respond to evidence that the applicant has not provided and upon which the IO based his decision. 18 5) TEMPORARY ADMISSIONS TO CANADA – VISITOR’S VISAS, STUDENTS AND TEMPORARY RESIDENT PERMITS IRPA s. 11, 18-20, 22-24 Regs 179-222 Why does the gov’t require visitor’s visas? What are the criteria used in putting country on the list of countries for which visas are required? What are the criteria used to determine whether or not a person is entitled to a student’s visa? 4 classes: visitors, foreign temporary workers, foreign students, holders of temporary resident permits Three categories: ० Citizen ० Permanent resident ० Foreign national: Def of foreign nationals: who is not a citizen or permanent resident. Foreign nationals 1) Legally temporary resident: visitor, student permit, work permit, temporary resident permit (if inadmissible: apply ou tside or upon entry) 2) Illegal Two types of visa: 1) permanent resident visa 2) temporary resident visa A.11: FN must apply to an officer for a visa or other document required by the Reg before coming to Canada. ० This section requires persons outside Canada to apply for either a PR visa or visitor’s visa depending on their intent upon arrival in Canada. ० Visa shall be issued if 1) FN is not inadmissible 2) meets the requirements of the Act Foreign nationals at first should decide which visa they will apply for ० P.R.: under what categories. has to be applied outside Canada ० T.R.: apply to meet qualification Note: R119 visa exemption countries Upon Entry A.18: officer determines whether the person has a right to enter Canada ० Customs officer works to find out 1) weapon or drug smuggler 2) whether inadmissible ० P.R.(A20(a)): should present visa and other documents and officer decides wheth er you are inadmissible or not Final decision made by immigration officer upon entry. 19 ० T.R.(A20(b)): should show the visa and other documents and establish that they ar e likely to leave Canada at the end of the period authorized for their st ay (key question) A.22: Foreign national becomes a TR if an officer is satisfied that FR Applied for that status Met the obligation set out in A20(b) Not inadmissible Temporary Resident Permit A.24: A foreign national who, in the opinion of an officer, is inadmissible or d oes not meet the requirements of the Act becomes T.R. if an officer thinks that it is justified in the circumstances ० Issued By officer inside or outside Canada If you come to Canada without permit, apply for the permit. ० Gives officer a broader discretion to grant permit or not even though the officer is always subject to the Minister’s discretion. ० Only people who are found inadmissible is eligible First IO should have an opinion that he is inadmissible ० After 3 years, you can apply for PR. ० No formal process, no clear criteria, officer’s discretion ० Permit can be cancelled at any time. ० Policy behind TRP: dealing fairly with minor or technical violations of the law + cases in which humanitarian, compassionate policy or public interest grounds suggest the usage of this option ० More serious the ground for inadmissible, harder to get ० More tied to Canada, easier to get Categorization Citizen, P.R., Foreign nationals whether inside or outside Not every T.R. is a foreign national, but all foreign nationals in Canada are T. R. Every person who wants T.R. has to apply outside Canada and meet the require ments Least onerous category is visitor ० Visitor requires only one document—visa. But this requirement is exemp ted for countries including U.S. and some other listed countries in R.190 ० Why Canada exempted some countries? Minimize refugee claims ० Visitor’s requirement other than visa – passport and you don’t need examina tion outside but just inside. Customs officer will look you over for profil e. E.g., Muslims more likely get examined. ० Officers have to be satisfied that you will leave. Visa lets you get on the plane. If you want to study or work, you need an ext ra permit. 20 R.183 – Mandatory Conditions on Temporary Residents (1) General conditions imposed ० (a) to leave Canada by the end of the period authorized for their stay ० (b) to not work unless authorized ० (c) to not study unless authorized (2) Authorized Period of Stay: the period authorized for the stay of a TR is six months or any other period that is fixed by an officer on the basis of ० (a) TR’s means of support in Canada ० (b) period for which TR applies to stay ० (c) expiry of TR’s passport or other travel document. 21 6) INLAND PROCESSING Act s. 11(1) and 25 Reg s. 64-69, 110-115 and 123-129 Baker, Legault, Hawthorne, Ahmad What is the rational behind requiring persons to apply outside of Canada before they are allowed to come to Canada as immigrants? What categories of persons can apply for landing inside of Canada? Why do you think that exceptions are made for those categories of persons. What does humanitarian and compassionate mean? What do you think of the IP 5 guidelines. Comment on Baker, Legault and Hawthorne? Why is the federal court reluctant to acknowledge that Canadian children have a right to have their parents remain in Canada? What is the rational behind the live in caregiver programme? When deciding to come 1) What category? a) Permanent resident b) Temporary resident If Permanent Resident, first thing to do 2) Can you apply from inside Canada or outside Canada? Inside Canada Live in Caregiver Protected Person Permit holder class Spouses H&C: many factors and up to officer’s discretion. Children is important factor, but not determinative: Baker “Best interest of the children always mitigate in favour or gives careful and sympatheti c consideration” Risk Established Outside Canada Family Independent Ways for Inland Process 22 1) Protected Person 2) H&C ground 3) Live in Caregiver 4) Spouse or Common Law Partner in Canada 5) Permit holder class Live in Caregiver Why special permit for Live in Caregiver that after 2 years working of caregive r grants a right to apply for PR? ० For people who don’t want to take care of children and want to work; short age of caregiver; political struggle in early 1980’s; government didn’t want nannies exploited. Page 308 R111: FN who seeks to enter Canada as a live-in caregiver must make an appli cation for a work permit. R112: Work Permit requirements. ० Apply before entering Canada ० Complete education equivalent to secondary school in Canada ० Following training or experience as a nanny ० Ability to speak English or French ० Employment contract with future employer R113: Requirement for PR Inland application ० After work 2 years as a nanny, you can apply for PR if meet requirements in this section. R114: Requirement for Nanny’s Family Members Spouse or Common Law Partner in Canada Class Page 354 R124: Member FN is a member of spouse or CL partner in Canada class if a) spouse or common law partner of a sponsor b) legal TR status in Canada c) subject of sponsorship application R125: Excluded Relationship. Same as one in sponsorship application. R126: Withdrawal decision shall not be made if the sponsor withdraws their sponsorship application in respect of that FN. R129: Accompanying Family Member: FN who is an accompanying family me mber of an applicant shall become PR if a) not inadmissible b) person who made the application becomes PR. Permit Holder Class Page 323 R64: permit holder class is prescribed as a class of FN who may become PR on the bas is of requirements. 23 R65 indicates that a person who is a member of the permit holder class may a pply for permanent resident status if meets the requirement in this section. Have been issued a TR permit under A24(1). Other requirement Humanitarian and Compassionate Grounds A25: the person may request the Minister to consider, or the Minister may of h is or her own volition consider, the circumstances surrounding the FN and deter mine whether or not there are H&C grounds, taking into account the best inter ests of the child, and other public policy considerations that warr ant the granting of PR and/or the granting of an exemption from any of the ot her requirements or obligations of the Act. Guidelines in Immigration Manual: ० Factors that IO considers include: Marriage to a Canadian resident; the fact that the person has lived in Canada; has become established; has become an “illegal de facto resident”; the fact that the person may be a long-term holder of employment autho rization or has worked as a foreign domestic. ० H&C ground exists if “unusual, undeserved or disproportionate hardship woul d be caused to the person seeking consideration if he or she had to leave Canada.” R66: Process ० In Canada, applicant should make the request in writing and accompany it w ith an application to remain in Canada as a PR. ० Outside Canada, request in writing and an application for a PR visa. Note You can apply for judicial review if H&C not go through Baker (1999) SCC (Most important case in immigration law) Facts Ms. Baker came from Jamaica as a visitor and remained in Canada for more than 10 years by supporting herself illegally. Had 4 Canadian children. Ordered deported. She applied for an exemption from the requirement to apply for Permanent residence outside Canada, based on H&C considerations. She stated that she might become ill again if she were forced to return Jamaica, since treatment might not be available for her there. She also clearly indicated that she was the sole caregiver for two of her Canadian-born children, and that the other two depended on her emotional support and were in regular contact with her. Held Duty of Fairness Duty of fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. 24 The values underlying the duty of fairness relate to the principle that the indivi dual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileg es made using a fair, impartial, and open process, appropriate to the st atutory, institutional, and social context of the decision. Factors relevant to determining the content of the duty of fairness ० Nature of the decision being made and process followed in making it ० Nature of the statutory scheme and the terms of the statute pursuant to whic h the body operates The role of the particular decision within the statutory scheme ० Importance of the decision to the individual or individuals affected ० Legitimate expectation of the person challenging the decision ० Choices of procedure made by the agency itself Participatory Rights Considering above factors wrt duty of fairness, Duty of fairness owed in this ca se is more than minimal, and the claimant and others whose important intere sts are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case a nd have it fully and fairly considered. Nevertheless, taking all the factors into account, the lack of interview or notice of such a hearing did not constitute a violation of the requirement of procedural fairness. The opportunity to produce full and complete written documenta tion was sufficient. Provision of Reasons A duty of fairness for H&C considerations requires Provisions of Reasons. Standard of Review Standard of review: what degree of deference Ct make ० Tribunals (including immigration officer) make administrative decision, but th ey are not Ct. Ct sits on judicial review for the protection of individual against tribunal decisions. ० Student visa or work visa from abroad have less chance of getting judicial r eview. ० How likely Ct will defer to tribunals in H&C? ० Before Baker, high degree of deference. ० After Baker, less degree of deference (reasonableness simpliciter) slight ly easier for us to get a decision from Ct. In practical term not much di fference. Reasonable Apprehension of Bias Test: whether the well-informed member of the community would perceive bias. International Law Canada ratified the international right for the child, but Canada didn’t incorporat e into Canadian law. But, international convention should be used as a tool f or assessing the case for immigration officer. They show the values that are central in determining whether the decision 25 was a reasonable exercise of the H&C power. Best Interest of the Children Attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a nega tive decision is essential for an H&C decision to be made in a reasonable mann er. The decision-maker should consider children’s interests as an important factor, gi ve them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’s best interest must always outweigh other considera tions, or that there will not be other reasons for denying an H&C claim eve n when children’s interests are given this consideration. Why Fed CA not comfortable with interest of children? ० According to para.75 of Baker, every person coming to Canada with child s eems to be able to stay. Concern is related to Policy issue when should de al with the meaning of para.75. Class Note • Duty of fairness: Agigi: HC ० Start with the Baker: change the rule ० Contrary to shau: not minimal duty • Baker: Duty of fairness extends to right to participate fully, but not mean that y ou will have an interview, also IM needs to give a reasons for the decision • Hagigi: in HC application where officer consult the issue of risk, HC officer has to disclose that info to the applicant before? Ct said yes. • When considering duty of fairness, need to consider process: More right before T ribunal than before HC officer. More right before HC than overseas. Depends on the participatory right that applicant has. ० 3 different processes for immigration: overseas, inland (HC), tribunal. Legault (2002) FCA * Best interest of the child Facts The respondent is the sole supporter of his children, and indicted on a number of fraud- related offences and a warrant was issued for his arrest. In an appeal involving the respondent’s request to be excused from the requirement to apply for PR from outside Canada as a result of H&C considerations, questions regarding the best interest of any children involved were considered. Held The mere mention of children was not sufficient to fulfill the requirements of th e jurisprudence. ० The interests of the children were a factor that had to be examined with car e and weighed with other factors. The jurisprudence did not create a prima facie presumption that the children’s b 26 est interests should prevail subject only to the gravest countervailing grounds. ० The IO must be “alert, alive and sensitive” (Baker) to the interests of the c hildren, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circums tances. Minister could take into account the respondent’s actions, past and present, including the fact that he faced an outstanding indictment for serious offenc es in a foreign country. ० After considering factors above, Minister can refuse H&C grounds if pu blic interest reasons supersede H&C ones. ० Outstanding indictment for serious offences in a foreign country is an examp le of other considerations or reasons mentioned in Baker that might overw eigh the children’s best interests. Decision Here, IO examined the interests of the children with a great deal of attention, weighed that factor in the light of other factors related to the past conduct and made a decision that was reasonable in the circumstances. Ahmad (2003) FCC The IO was not alert, alive and sensitive to the best interests of Ahmad’s two-year-old child. The only discussion of the best interest of the child was that at his young age, and with his ability to speak the Pashtu language, he would be able to adapt to life in Afghanistan, and that while life would not be the same as in Canada, he would have his parents’ support. This was not an adequate analysis of the best interests of the child and constituted a reviewable error. Hawthorne (2002) FCA Facts Hawthorne, a Jamaican citizen, was refused permission to apply for PR from within Canada. The visa officer could find no H&C grounds upon which to waive the requirement to apply from outside Canada. The respondent came to Canada in 1992 to live with the father of her child. The child, then aged eight, remained in Jamaica under the care of her grandmothers. In 1999, the respondent brought the child to Canada and supported her. The child was sponsored for Canadian citizenship by her father. Held • Unless the decision maker considers the degree of harm in the context of the b est interest of the child, he is likely to be diverted from her duty to be “alert, a live and sensitive” to this important factor in the exercise of discretion. Visa officer had not properly considered the economic consequences to t he child. Thus, reviewable error. Officer did not make inquires and ascertained that father was willing and able to provide financial support for the daughter. A best interest analysis makes the daughter’s present life in Canada the 27 relevant point of comparison, not her previous residence. The officer found that daughter’s accompanying mother to Jamaica w ould not be a major hardship b/c she had lived in Jamaica for nearl y for all her life, having been in Canada for less than a year. Howe ver, the officer should consider the best interests of the daughter no w as a permanent resident. Thus, her accompanying mother resulted from deportation could only reasonably have been regarded as highly detrimental to her best interest. Problems Mr. Smith is in Canada illegally. He has been here for four years. He has recently married a permanent resident and wants Advice as to what are his options. What would you tell him? H&C Inland application: arguing he has established in Canada. Negative decision might have caused unusual, undeserved and disproportionate hardship to him and his spouse in Canada. Albert applies for an exemption to remain in Canada on humanitarian grounds. He has a valid work permit. He has been in a same sex relationship with Stephen for two years. Stephen wishes to help him get his status. What options are open to them? ??? Albert and Anne came to Canada four years ago. They are from Xanadu, a small island in the Caribbean. Xanadu does not have a hospital and unemployment is 50%. Albert and Anne both had been unemployed for three years prior to coming to Canada. Both are working here and they earn over 35,000 per annum When they arrived they were given six months visitors status and remained without getting any renewals. They had a child two years ago. The child has a congenital heart problem that requires her to be checked on a monthly basis by a specialist at Sick Children’s Hospital. Albert and Anne consult you. Their application for an exemption has been refused. In the refusal letter the office notes: I have considered the best interests of the child but as she is very young she will not have any problems in adjusting to life in Xanadu. Application refused. What advice would you give to Albert when he consults you about the chances of success? Inadmissibility Who decides admissibility after passing the selection process? Outside Canada Officer outside: due process 28 Ground for inadmissibility Criminal – A. 36 Convictions (equivalency) Committed (equivalency) Organized crime – A. 37 Medical – A. 38: conditions that put public in danger or Children or Protected person are exempted Securities – A. 34 What do “member” and “terrorism” mean? Crimes against humanity – A. 35 Unable to support oneself – A. 39 Misrepresenting a material fact – A. 40 Failure to comply with the Act – A.41 Due process outside Canada is very limited [Chiau] Right to know the gist of allegation Appeal is judicial review What would you do if your application is rejected at the last minute without disclosure? Not much due process entitled before the officer: officer’s response in writing would suffice. If officer should prove, Standard of Proof: “reasonable grounds to believe” in A. 33 for security grounds [A.34-37] A. 87: court can receive the info. a) Is person inadmissible? Burden of proof: who has to prove? [A. 45(d)] Outside: applicant has to satisfy the officer that he/she is not inadmissibl e Burden on the minister if foreign national inside Canada or permanent r esident Standard of proof: “Reasonable Ground” [Chiau p.4 or para. 60]: “a standar d of proof that, while falling short of a balance of probabilities, connotes a bona fide belief in a serious possibility based on credible evidence” [A.33] Beyond a reasonable doubt (Highest) Balance of probability: over 51%: more likely than not Reasonable grounds (Lowest): provide much lower protection against acc usation. Serious criminality: Balance of probability: [A.36] A. 34 (1)(a) “Subversion against a democratic government…” what does “subversion” and “democratic”? (1)(b) distinction b/w subversion and instigating the subversion (1)(c) terrorism? 29 (1)(f) being a member of an organization? [Murrilo] (2) Not inadmissible if satisfy the Minister that their presence in Canada would not be detrimental to the national interest Chiau v. Canada 1) Reasonable grounds 2) Judicial review and access to the confidential information 3) Definition of members [p.4]: “broadly understood”, “ participation in a legiti mate business, knowing that it is controlled by a criminal organization, in so me circumstances may support a reasonable belief that the person belongs to the criminal organization” 7) ADMISSIBILITY HEARINGS & REMOVAL INTERVIEWS Act s.33-42 Reg s. 14-24 Cases Chiau, Dee, Legault, Li, Murillo and Adam What is the purpose of the admissibility hearing. When does a person have a right to a hearing as opposed to an interview before an officer. What is the difference in the procedure. What is the rational behind providing hearings in some cases and administrative interviews in others. Does the Member of the Immigration Division have Charter jurisdiction? What is the right of the media to be present at admissibility hearings. Is there a right to counsel at administrative hearings? Introduction Policy reasons created categories of persons who are deemed to be inadmissible to Canada b/c they pose a threat to Canadian society, or b/c there are other policy reasons for their exclusion from the country. The inadmissibility sections come into play in immigration procedures in 3 different ways: o in the processing of applications made at visa offices by FN for visas that permit them to gain entry into Canada; o in the review by IO upon arrival in Canada; and o in the determination of whether PR or FN who has been allowed to enter into and remain in Canada should be removed from Canada. i) Inadmissibility in Visa Applications Outside Canada The role of officer in assessing application as a PR or TR is to determine whether the person who has made the application is not inadmissible and otherwise meets the requirements of the Act or Regulations. Duty of fairness: in making decisions, the visa officer acts in an administrative capacity, and does not have to comply with the principles of natural justice that flow 30 from a quasi-judicial hearing process available to persons at the port of entry. o Fundamental justice and Charter protection do not extend to applications outside Canada. o Chiau: Duty of fairness outside Canada does not require the disclosure of a summary of the confidential information that might result in damage to national security upon which refusal is decided. ii) At time of Arrival in Canada Even if the person has been issued a visa, it is still incumbent on the examining officer in Canada to examine that person and determine whether the person is inadmissible. Standard of Proof A.33: Std of proof to be applied for national security concerns (A34), human rights violations (A35), criminality or serious criminality (A36), or organized criminality (A37) is REASONABLE GROUND (less than a balance of probability). o Chiau: Definition of “reasonable grounds” as a standard of proof: while falling short of a balance of probabilities, connotes a bona fide belief in a serious possibility based on credible evidence. o For other inadmissibility sections, presumed to be Balance of Probabilities. Classifying the Inadmissibility Sections 1) Terrorism, National Security and War Crimes A34: Security Grounds Inadmissible if engage in an act of espionage, subversion against a democratic government, terrorism, being a danger to the security of Canada, or being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred. Murillo (2002) FCT Facts The applicant for PR was inadmissible. There were reasonable grounds to believe he had committed a war crime or crime against humanity. He had held various positions including aircraft mechanic in the executive squadron in the Nicaraguan army which was responsible for the crime. Held Test for “being a member” is personal and knowing participation, which includes a mental aspect or knowledge, an indication of the mens rea o Mere membership in an organization which from time to time commits crimes is not sufficient o Where an organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership is sufficient since it may by necessity involve personal and knowing participation in persecutorial acts. 31 Here, no evidence that applicant directly involved with the crime and no evidence that the army was an organization principally directed to a limited, brutal purpose. A35: War Crimes and Crimes against Humanity Applicable both to PR and FN (a) the person committed an act outside Canada that “constitutes an offence referred to in ss. 4 to 7 of the Crimes Against Humanity and War Crimes Act (b) the person is a prescribed senior official in a government that has committed war crimes or crimes against humanity Standard of proof: no need for a conviction, merely proof on reasonable grounds that the person falls within the scope of the section. Exceptions: the Minister retains discretion to grant admission to such individuals under (b), not (a) where it would not be detrimental to the national interest. Prescribed Senior Government Officials (b) Test 1) Person must held a prescribed position in the government o R16: prescribed position includes head of the state or government; members of cabinet; senior advisors to the above; senior members of public service, the military and intelligence and internal security services; ambassadors and senior diplomatic officials; and members of the judiciary. o Minister must establish on a standard of reasonable grounds that the person held the position 2) Person must be determined whether the government is one that in the opinion of the Minister has systematically violated human rights. Adam (2001) CA Held All that was required is that the Minister establishes that the person held a prescribed position in a government that had been found to be a systematic violator or human rights. o Rejected the contention that holding a prescribed position in such a government merely created a rebuttable presumption so that such person could argue that he or she was not in a position to exert significant influence. Not necessary for Minister to first refuse the exemption set out in the section; onus is on the person to apply. o i.e., Apply for the exemption before Minister refuse your application. 2. Criminality and Organized Criminality • There is a presumption that a person who has engaged in criminal activity in the past will engage in such activity again in the future, and that such PR or FN should not be admitted to Canada. i) A36: Criminality: applicable both FN and PR 32 (1)(a) having been convicted in Canada by a max term of imprisonment of at least 10 years, OR term of imprisonment of more than 6 months has been imposed (1)(b) having been convicted outside Canada that ,if committed in Canada, would constitute an offence by a max imprisonment of at least 10 years; or (1)(c) committing (conviction not necessary) an offence outside Canada that is an offence in the place where it was committed AND that, if committed in Canada, would constitute an offence by a max of at least 10 years. o Here, Standard of proof for PR must be based on a balance of probabilities (A36(3)(d)). (3)(c) Rehabilitation: matters above not inadmissibility if the person, after the prescribed period, satisfies the Minister that they have been rehabilitated OR a member of a prescribed class that is deemed to have been rehabilitated. Li (1996) C.A. * Test of Equivalence under A36(1)(b) Facts The appellant, a citizen of Hong Kong who had been convicted of bribery and sentenced to four years’ imprisonment, was ordered deported from Canada on the basis of conviction. Held In order to establish equivalency, the competent official must consider the essential elements of the offence in the foreign jurisdiction. If the offence in the foreign jurisdiction is broader than the equivalent offence in Canada, then the officer may consider the facts of the offence and determine whether, based on those facts, the offence is equivalent to the Canadian offence. Such a comparison necessarily involves both the elements of the offence and any defences that can be raised in Canada. If there is no equivalency, then there can be no finding of inadmissibility. o Here, defences under the Charter in Canada was available: reversal burden of proof. Decision: appeal allowed. Note from Class If elements of crime in foreign country = a+b+c; in Canada=a+b+c+d, and for the applicant to become inadmissible under A36(1)(b), it has to be established through facts that acts equivalent to “d” in Canada exists. Legault (1997) CA * A36(1)(c) Facts American citizen and fugitive from justice was charged with conspiracy to commit wire and mail fraud, falsely making a bill of landing and use of fictitious names. Held The official must make a finding of facts as to whether there are reasonable grounds (for PR, the proof must be a balance of probabilities) to believe that the person 33 committed an act that is an offence in the place where it was committed (i.e., in America, not Canada). o Here, the applicant was found not to commit acts or omissions outside of Canada that constituted offences under American law. There was no evidence linking the appellant with any criminal activity. The ultimate culpability of the applicant must be determined by taking into consideration a wide range of factors, including intent, provocation and self defence. o The applicant would be able to argue that, although in fact commit the act, he lacked the requisite intent or not guilty of the offence b/c of statutory or CL defences. Rehabilitation A36(3)(c): matters above not inadmissibility if the person, after the prescribed period, satisfies the Minister that they have been rehabilitated OR a member of a prescribed class that is deemed to have been rehabilitated. o Maximum term of imprisonment of 10 years or more (under A36(1)(b) & (c)), have to wait more than 5 years to appl y for rehabilitation (R17: Prescribed years): o If l ess than 10 yea rs, aft er 10 years you don ’t have to appl y (R18: Prescribed class that is deemed to have been rehabilitated) Re: A34(2): minister has the authority to pardon when he/she is satisfied that their presence in Canada would not be detrimental to the society. Re: A35(2): committed war crimes or crimes against humanity under A35(1)(a): no possibility of rehabilitation, and the person would be permanently barred from entering Canada unless a temporary permit under A24 is issued. o Only prescribed senior official is eligible for pardon. Dee (2000) FCT Facts The applicant, an opponent of the Marcos government, arrived in Canada from the Philippines and was found to be a Convention Refugee. However, he was not granted permanent resident status due to outstanding charges against him in the Philippines. ie., inadmissible under A36(1)(c). The applicant applied for rehabilitation, but denied. Held Factors for Rehabilitation: Absent some negative consideration not apparent on the record, it was reasonable to conclude that the applicant could function in society and that he presented a minimal risk of committing crimes in the future. o Both RCMP and CSIS reports could not find evidence of any criminal activity on his part in his 17 years in Canada. Natural justice: absence of compelling reasons, such as a threat to international relations or national security, natural justice demands that the applicant be given the opportunity to review and respond to the material held by the respondent upon which the decision is based. 34 o Here, it was held that natural justice was in breach since regardless of lack of issues of protecting international relations or national security, the Minister withheld the Philippines affidavit that gives applicant’s details of charges and forced the applicant to respond to the bare allegation of wrong. ii) A37: Organized Criminal Activity (1)(a) Membership in an organization that is believed, on reasonable grounds, to have engaged in activity that is part of a pattern of criminal activity, planned and organized by a number of persons acting in concert in furtherance of the commission of criminal offences, renders a person inadmissible. o Thus, there must be proof of membership, and of a pattern of criminality that is planned and organized by persons acting in concert. o Standard of proof is “reasonable grounds” (1)(b) a person can also be inadmissible for engaging in certain types of activity, including people smuggling, trafficking in persons or money laundering. (2)(a) there is the possibility of applying for rehabilitation. Chiau (2000) CA Facts The appellant, an actor who worked for studios that were owned and operated by an organized crime triad in Hong Kong, had a long-term relationship with the head of one of the studios. The visa officer relied on confidential information, along with evidence at the hearing, to conclude that the appellant was a member of an organized crime triad and was thus inadmissible. Held Definition of “reasonable grounds” as a standard of proof: while falling short of a balance of probabilities, connotes a bona fide belief in a serious possibility based on credible evidence. Membership for the purpose of A37(1): the term should be broadly understood. Since it will not always be possible to draw a distinct line between the legitimate business activities of a criminal organization and its criminal activities, Participation in a legitimate business, knowing that it is controlled by a criminal organization, in some circumstances may support a reasonable belief that the person belongs to the criminal organization. Duty of fairness (where the appellant applied for PR visa outside Canada): no breach b/c the adverse effect on the appellant was relatively slight in contrast to the potential damage to national security and international relations as a result of disclosing any part of the confidential material. 3. Health A38: FN (PR cannot be inadmissible on medical grounds) is inadmissible on health grounds if their health condition (it must be present at the time of decision, existence of past decision is irrelevant) 35 o (a) likely to be a danger to public health (b) public safety; or o (c) might reasonably be expected to cause excessive demand on health or social services Exception A38(2): (1)(c) does not apply in the case of FN who o (a) is spouse or children of sponsor and to (c) protected person. o Other members of the family class (such as parents, grandparents), the sponsor has a right under A62 to appeal the decision refusing sponsorship to the Appeal Division of the Immigration and Refugee board, and that tribunal is charged with balancing the competing concerns of family reunification and concern over public resources. R20 makes it clear that it is the decision of the officer 1 who reviews the medical information that determines admissibility and that the officer 2 dealing with the visa application is bound by the decision of officer 1. Since officers must always consult a medical expert before deeming someone inadmissible for medical reasons, it follows that the officer will always be required to provide the opinions of the medical expert to the applicant and give him a reasonable opportunity to respond (Haghighi) 3. Unable to Support oneself A39: Financial Reasons: FN (not PR) is inadmissible if they are or will be unable or unwilling to support oneself or any other person who is dependent on them, and have not satisfied an officer that adequate arrangements for care and support, other than social assistance, have been made. This section may be applied to PR applicants who have been sponsored as mbrs of family class, but only if sponsor does not meet the requirements of the Low Income Cutoff (LICO). Also to applicant for PR visa as economic migrants. 4. Misrepresentation: A40 Both to PR and FN (a) for directly or indirectly misrepresenting or withholding material facts that induces or could induce an error in the administration of this Act. (b) for being sponsored by a person who is determined to be inadmissible for misrepresentation. o (2)(b) not apply unless Minister is satisfied that the facts of the case justify the inadmissibility (2)(a) PR or FN continues to be inadmissible for misrepresentation for 2 years after o determination outside Canada: a final determination of inadmissibility o in Canada: the date the removal order is enforced. Mohamed: low degree of mens rea: almost none. 5. Non-Compliance with Act For FN: through an act or omission which contravenes, directly or indirectly, a 36 provision of this Act For PR: failing to comply with A27(2) [conditions imposed under the regulation] and A28 [Residency requirement] Problem John is a university student in Xanadu. Xanadu is in the throes of great social unrest. While studying John attends some meetings of the Xanadu Liberation Front--the Front advocates social change and supports the ouster of the current repressive government. The Front however, is divided into two groups--the Hardliners who support the use of violence and the Democrats who support only non violent means. John attends several meetings but does not join the group formally. He does contribute to the group finacially because the group supports soup kitchens in poor neighbourhoods. John goes to help distribute the food in the soup kitchens and narrowly escapes arrest. After he flees Xanadu the Hardliners begin a campaign of bombings. Although they are directed against military targets on one occasion a civilian is killed. John arrives in Canada and claims refugee status. The Minister alleges he is inadmissible under section 34. What arguments would you raise at John's inadmissibility hearing. 37 8) ARRESTS AND DETENTION Act s. 54-61, 82-84 Reg 244-250 Immigration Division Rules re Detention Reviews 8-19 Cases Sahin, Salilar, Kidane, Kahjoub Describe the powers of arrest and detention of immigration officers. Who determines who is detained and released? What are the criteria to be used. What is the impact of the Charter on arrest and detention issues? Describe the procedure at detention reviews. Discuss the jurisprudence that has developed in this area. A54: Immigration Division (ID): o The division of the Immigration and Refugee Board which deals with detention under IRPA. A55(1): Arrest and Detention WITH Warrant o An officer may issue a warrant for the arrest and detention of PR or FN who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada. A55(2): Arrest and Detention WITHOUT Warrant o (a) An officer may, without warrant, arrest and detain a FN (Not PR), other than a protected person, who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for an examination o (b) if the officer is not satisfied of the identity of the FN. A55(3): Detention on Entry o Allows for detention of PR or FN upon entry into Canada if the officer considers it necessary to do so in order for the examination to be completed, or the officer has reasonable grounds to suspect that the PR or FN is inadmissible on grounds of security or for violating human or international rights. 38 A56: Release-Officer: allows an officer to release PR or FN from detention before 1st review by Immigration Division if reasons for detention no longer exist. The officer is empowered to impose any conditions. A57: Review of Detention by Immigration Division o (1) Within 48 hours after PR or FN is taken into detention OR without delay afterward, ID must review the reasons for the continued detention. o (2) Further Review: at least once during the 7 days after the review under (1), and at least once during each 30-day period after each previous review. A58: Release- Immigration Division: “shall order the release… unless it is satisfied” Onus on the Minister to establish the grounds for continued detention. o Grounds for continued detention (a) Danger to the public R246 gives a non-exhaustive list of factors to be considered, including engagement in people smuggling or trafficking in persons, convictions for sexual offences or offences involving violence or weapons, in or outside Canada. (b) Unlikely to appear R245 factors to be considered: whether the person has cooperated in the past in terms of appearing for examination and ties to the community. (c) Reasonable steps by Minister to investigate inadmissible on grounds of security or for violating human or international rights (d) Identity of FN not established and FN not reasonably cooperated by providing relevant information. A60: Minor Children: minor child shall be detained only as a measure of last resort. A82-84: detention as a result of certificate in A77(1) Sahin (1995) FCT * Most important case in detention and release. Facts The applicant, a Turkish citizen, was detained pending a determination of his claim to be a Convention refugee. The detention order had been made based on the applicant’s statements that, if released, he would not report for removal if required to do so. Held S7 of the Charter applies to detention reviews (provisions and discretionary administration) o In detention review, an adjudicator, without finding that an individual is guilty of any offence, has the power to detain him/her. o Fundamental justice envisaged by S7 of the Charter is at stake: it requires that a fair balance b/w individual rights and protection of society, both substantively and procedurally. o “Indefinite detention” for a lengthy period of time constitutes a deprivation of the right to liberty and is not in accordance with fundamental justice under S7 of 39 the Charter. Fair to say “indefinite detention” when the time to take each step is unknown for practical purposes. Guidelines as to what factors should be considered when making determination: (1) Reasons for the detention, i.e. is the applicant considered a danger to the public or is there a concern that he would not appear for removal. I would think that there is a stronger case for continuing a long detention when an individual is considered a danger to the public. (2) Length of time in detention and length of time detention will likely continue. If an individual has been held in detention for some time as in the case at bar, and a further lengthy detention is anticipated, or if future detention time cannot be ascertained, I would think that these facts would tend to favour release. (3) Has the applicant or the respondent caused any delay or has either not been as diligent as reasonably possible. Unexplained delay and even unexplained lack of diligence should count against the offending party. (4) The availability, effectiveness and appropriateness of alternatives to detention such as outright release, bail bond, periodic reporting, confinement to a particular location or geographic area, the requirement to report changes of address or telephone numbers, detention in a form that could be less restrictive to the individual, etc. It could be any conditions imposed by ID or any appeal rights or remedies. The amount of time that is anticipated until a final decision deserves significant weight. Mahjoub (2003) FCT Facts Application by the respondent Mahjoub for release from detention. Mahjoub arrived in Canada on December 30, 1995 and made a claim for Convention refugee status. It was accepted on October 24, 1996. Mahjoub was detained on June 26, 2000 on the basis of a certificate that he was a high-ranking member of an Egyptian Islamic terrorist organization. A deportation order was issued against him on March 26, 2002. Mahjoub had been previously found by the court to be untruthful. Held Application dismissed. Mahjoub would be removed within a reasonable time. The amount of time that is anticipated until a final decision deserves significant weight. Although removal could be delayed if an individual faced the risk of torture in his home country, this risk did not apply to Mahjoub. Abundant evidence that Mahjoub's release would pose a danger to national security. Due to Mahjoub's untrustworthiness, release conditions [4th criteria in Sahin] would not be effective to ensure that he did not pose a danger to national security or to the safety 40 of any person. Kidane (1997) FCT Facts The applicant, arrived from Ethiopia as a refugee, was convicted of 15 criminal offences. Pending deportation was detained, and reviews conducted every 30 days. Held Applicant’s detention was not “indefinite” under Sahin: distinguished o Sahin: not a criminal nor was a danger to the public. Done nothing wrong except come to Canada without proper documentation. o Kidane: criminal, danger to the public, and removal order was final and effective. Once IO finds a country that will take the applicant, he will leave Canada. Re: guidelines in Sahin o The applicant found to be danger to the public o Applicant is largely responsible for the delays which have extended his detention o No real alternative to detention: no appeal available and he has exhausted all his remedies. Salilar (1995) FCT Facts The applicant, a stowaway, was removed from a vessel in Halifax. He was refused Convention refugee status and was later convicted of and sentenced for a number of violent crimes in Canada. On the day of his release from incarceration for the last of his crimes, an adjudicator determined that he should be detained. Reviewed twice, but determined to remain in detention. Held Each detention review is a de novo hearing and that the adjudicator conducting the review must make an independent determination as to whether the applicant ought to be detained. o It is not sufficient to proceed by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision. o The adjudicator should start with the premise that detention is an extraordinary restraint in our society. o There must be an onus upon immigration officials to demonstrate each time that there are reasons which warrant detention. The adjudicator erred in requiring what was in effect a guarantee that the applicant would not present a possibility of danger to the public or of not appearing for removal. o What was required was whether the evidence supported the conclusion that the applicant was not likely to pose a danger to the public and was likely to appear for removal, if released. 41 9) APPEALS TO THE IAD IRPA s. 63-71 Regs s. 251 Cases Chiarelli, Chieu, Lozin, El Haj, Chow * importance of appeal – based on right to seek Humanitarian and compassionate considerations even though you’ve violated your grounds to be admitted into Canada. Who has a right to appeal to the Appeal Division. What is the rational behind who has and who doesn’t have a right to appeal. Discuss the impact of section 64 of IRPA on the right of appeal. Is it reasonable to deny any right of appeal to long term permanent residents. What alternate procedure is there to decide equitable issues in those cases. What is the nature of the Appeal Process? What criteria ought to be used by the Appeal Division when it exercises its equitable review. Only 2 reviews in immigration process: 1) Judicial review under Federal court 2) Appeal division: If no right of appeal, then only judicial review. A62: Competent Jurisdiction o Immigration Appeal Division (IAD) has the jurisdiction over appeals A63: Jurisdiction of Appeal Division o (1) Visa refusal of family class: An appeal by a sponsor from a refusal by an officer to approve an application for a PR visa made by the member of the family class sponsored by the person appealing. o (2) Visa and Removal order: Appeals by FN who holds PR visa against a decision at an examination or admissibility hearing to make a removal order. o (3) Removal order: Appeals by PR or PP of a removal order issued against him. o (4) Residency obligation: Appeal by PR outside of Canada against a determination made under A28 that he has not met the residency requirements o (5) Appeal by the Minister of any decision made at an admissibility hearing. 42 Restriction on Appeal Division’s Jurisdiction A64: No Appeal for certain inadmissibility o (1) IAD does not have jurisdiction to hear an appeal from a sponsor, PR or FN with PR visa if FN or PR has been found inadmissible on grounds of security, violating human or international rights, or organized or serious criminality Serious criminality: for the purpose of this section it requires that the person be sentenced in Canada to a period of more than 2 years’ imprisonment. Differing from one under A36(1). o (3) Misrepresentation: No appeal for visa refusal of family class (A62(1)) if the decision was based on inadmissibility on the grounds of misrepresentation, unless FN in question is sponsor’s spouse, CL partner or child. o Effect of this section: extinguishing all appeal rights and any possibility of an equitable review of a deportation order in these circumstances. A65: Restriction on H&C (equitable) considerations: IAD cannot exercise equitable jurisdiction in cases involving sponsorship (A63(1)&(2)) unless it is satisfied that the person is a member of the family class and that the sponsor is a sponsor within the meaning of the regulation. A66: Disposition on Appeal o (a) Allow the appeal under A67 A67: IAD shall allow the appeal if satisfied “at the time that the appeal is disposed of” (implying can bring in new facts) Decision appealed is wrong in law or fact or mixed law and fact A principle of natural justice (procedural fairness?) has not been observed Taking into account the H&C factors including the best interests of the child, the appeal ought to be allowed in light of all the circumstances of the case. Effect: shall set aside the original decision and substitute a determination that should have been. o (b) Stay a removal order under A68 A68: stay a removal order if sufficient H&C factors, including the best interests of the child, warrant special relief in light of all the circumstances of the case. (3) Reconsideration: if stayed, it may at any time, on application or on its own initiative, reconsider the appeal. (4) Termination and Cancellation If IAD stayed a removal order against PR or FN who was inadmissible on grounds of serious criminality (A36(1)) or criminality (A36(2)), and they are convicted of another offence under A36(1), [serious criminality], the stay is cancelled by operation of law and the appeal is terminated. 43 R251: conditions that IAD shall impose when stays removal. o (c) Dismiss an appeal under A69 Dismiss if it finds no basis for allowing the appeal or for a stay of deportation. A71: Reopening Appeal o IAD has the jurisdiction to reopen an appeal by a FN under removal order if the person has not left Canada AND if there has been a breach of natural justice. o The wording of this section is ambiguous and given the absence of the word “only” in reference to the jurisdiction of the IAD, it is certainly arguable that the fact that the section acknowledges the IAD’s jurisdiction to reopen appeals for breaches of natural justice does not oust its ongoing equitable jurisdiction prior to the execution of removal order. ie., even in reopening of appeal, FN can still argue for its equitable consideration. Note If you cannot appeal, what kind of recourse you have? Judicial review Difference b/w appeal and judicial review? JR has o No H & C ground o More strict cannot bring in new evidence o Judges give more deference to tribunals Chiarelli (1992) SCC Facts Chiarelli is a PR convicted of an offence for which a term of imprisonment of five years or more may be imposed. Thus, held that no appeal right was denied. Held A64, deportation without any appeal rights, does not infringe S7 of Charter, thus prima facie constitutional. o Deportation of a PR who had violated one of the conditions of this admission to Canada did not violate the principles of fundamental justice. This condition represents a legitimate, non-arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non-citizen to remain in Canada. o The scope of principles of fundamental justice for non-citizens differs from citizens. i.e., non citizens do not have unequaled right to enter or remain in Canada. No equitable review once fall into the ambit of A64. Chieu (2002) SCC * if reopen under the new Act, then inadmissible. Facts Appellant became PR. However, found later that he misrepresented his marital status, stating he was single with no dependents, in order to be eligible to be sponsored as an accompanying dependent of his father. Ordered removal. Held 44 IAD has jurisdiction to consider foreign hardship factors when a likely country of removal has been established. o “all the circumstances of the case” A67(c) favours a broad interpretation o Proper interpretation of this section: open-ended wording, “all”, suggests the greatest possible number of factors relevant to the removal of PR. o IAD is equipped with all of the tools to ensure that principles of natural justice and the Charter are met. o At the hearing of A67(c) appeal, the onus in on the PR facing removal to establish the likely country of removal on a balance of probabilities. Standard of Review for IAD decision: lowest degree of deference—Correctness Standard: if wrong in legal issues, Ct will intervene. Decision Appeal should be allowed. El Haj Hassan (2003) IAD Held Successful: stay of removal order. What is the most important factor? o Have to be remorseful: he regretted what he has done and pleaded guilty for all accounts. Equitable factor was weak. Been here only 4 years. o Another key factor was a conviction NOT of a crime of violence. Far more difficult to stay if conviction is of drug or serious crime. Lozin (2003) IAD Held Appeal dismissed since insufficient H&C grounds In view of the appellant’s lack of remorse, the seriousness of the crimes he committed, high possibility of participating in street gang, the limited extent to which he is established in Canada (9 years) Best interest of the child: in view of appellant’s general lack of credibility, not satisfied that his relationship with his young son is as close as he claims. Chow (1992) IAD Facts Sponsor of her mother appealed. Humanitarian and Compassionate ground. Held Considered how serious the ground of inadmissibility is. Since inadmissible on the medical ground, more equitable ground should be considered. Question 1) What if a client jailed more than 2 years, then under s64 he does not have any right to appeal. Any other way to stop it before starting? 45 S44: (1) Officer MAY write a report (2) Minister MAY…: differing from “SHALL”, which means they have discretion. Thus, lawyers can find a way around it. Write a letter saying “Don’t use your discretion!!!” Question 2) 1) S7 of the Charter 2) You were ordered deported since you are inadmissible on the ground of serious criminality. Do you have any right to appeal under s.64? Appeal division have a power to question of law and fact. Make a finding of law and fact to find whether my client is put under the s.64. Challenge the JURISDICTIONAL FINDING: immigration officer made an error in law. Two possible outcome 1) Tribunal was incorrect, thus we have a jurisdiction 2) Tribunal was correct, thus we do not have a jurisdiction. *Waldman theory Does not say who have found it? Immigration officer is not specified her. Thus, we can use the argument saying Appeal division has the right to decide this question based on S162. Question 3) Client’s wife who he sponsored got refused due to misrepresentation. She does not have a right to appeal under s64(3). What can you do? 1. Do we have a legal case here to find misrepresentation? Look at the fact to find out whether real misrepresentation? One possible incidence is that not her fault, but the other party’s fraud. 2. Equitable jurisdiction (Most important one): Humanitarian and Compassionate Yes, she did it. Please consider all these other facts. 46 9) Removal and Exclusion: PRRA A brand new addition to the new Act. Canada doesn’t want to remove people who are in similar circumstances to a refugee. Risk of torture, 51 convention grounds (race, religion, etc.). IRPA sections 112-115 (PRRA and Non Refoulement) , 48-52 (Removal) IRPA Regs 160-174, 223-243 Cases Suresh, Arshad, Allel; Wang, Benitez, Prasad, Simoes Describe the pre removal process? Why did IRPA incorporate the Pre Removal Risk Assessment? Where can a person be removed to? Why are persons usually removed to their country of nationality? What discretion does the removals officer have? Discuss the jurisprudence that has emerged around the discretion of removals officers? Can a person obtain a stay of removal pending an application for judicial review. What criteria are used in determining whether or not a stay should be granted. Pre-Removal Risk Assessment (PRRA) Introduction By introducing of PRRA, now it is required that a risk assessment should be done just prior to the execution of the removal order in virtually all cases. This will eliminate last minute applications for stays by persons who allege risk and who argue that they have not had a timely risk assessment, ie, there had been changes in circumstances that militated in favour of a new assessment. A112(1): All persons who are subject to a removal order that is in force or named on a security certificate under A77(1) may apply to the Minister for PRRA. Exceptions A112(2): o Persons who are subject to an authority to proceed issued under the Extradition Act o Persons who have been found ineligible to make a refugee claim under 47 A101(1)(e) b/c they came to Canada through a designated third country o Persons who return to Canada after removal within 6 months of their removal o Persons who have already been granted refugee protection 2 Categories of Eligible Applicants 1. Persons who are NOT inadmissible 2. Persons who are Inadmissible Inadmissible category: o Who (A112(3)): Applicants who are inadmissible on grounds of serious criminality, violating human or international rights, or organized crime or persons who are the subject of a A77(1) certificate. Serious criminality: a conviction in Canada imprisoned at least 2 years OR conviction outside Canada, if committed in Canada max imprisonment of at least 10 years. o Considerations (A113(d)): “limited”: they are eligible for a determination only on the grounds set out in A97, i.e., risk of torture, risk to life or cruel or inhumane treatment. The process requires a balancing of risk to the state as opposed to risk to the individual. Alternatively, waldman said you can suggest alternative to deportation to the country of danger such as imprisonment in Canada if he chooses to. In cases where a risk of torture, removal would be precluded by the Charter. Suresh: where there is a determination that the person would be at risk of torture, a stay of removal must be authorized notwithstanding the ground of inadmissibility and the potential risk that the person might pose to Canadian society. o Disposition (A114): persons who receive a positive determination will be granted a stay of deportation until conditions in the person’s country of nationality allow for a reconsideration (A114(2)) of the issuance of the stay. However, person in this category cannot apply for PR Removal order is still valid. People assessed at risk are literally living in limbo. Not Inadmissible category o Considerations (A113): are eligible for full consideration under A96 (Convention Refugee) A98 and A97. Applicants who have had a previous negative determination in an application for refugee protection Only present new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of rejection. Applicants who have not had a negative determination 48 May present any evidence without restrictions o Disposition (A114): all applicants who fall into this category, if approved, will be granted refugee protection. Vacating Positive PRRA Determination o A114(3) allows the Minister to vacate a positive PRRA determination if the Minister is of the opinion that the decision was obtained directly or indirectly as a result of the misrepresenting or withholding of material facts o A114(4): once a decision is vacated then it is null and void, and the conferring of refugee protection is nullified and the application is deemed to have been rejected. PRRA Process o The first step in PRRA process is the issuance of a notification to the applicant that he or she is removal ready. The applicant is given a notification of the pre- removal risk assessment by the officer under R160(1) & (3). The notification advises the applicant that he or she has a right to apply for a PRRA by making an application. The applicant is required to submit the PRRA application within 15 days. Upon negative decision on PRRA, person is given 3 weeks until removal. Only option at that point is judicial review to the Federal Court to get a stay of removal order. Principle of Non-refoulement (A115) o (1) A Convention refugee or a person who is a protected person in Canada shall not be removed from Canada to a country where the person is at risk of persecution due to the person’s race, religion, nationality, membership in a particular social group or political opinion. o (2) Exceptions: such a person may be removed to a country where he/she is at risk if, in the case of a person inadmissible on grounds of serious criminality, the Minister certifies the person to be a danger to the public, or, in the case of a person inadmissible on grounds of security, violating human and international rights or organized criminality, the Minister forms the opinion that due to the nature and severity of the acts committed or the fact that the person constitutes a danger to security, the person should not be allowed to remain in Canada. However, due to Suresh, it is arguable that removal of a person back to torture would be violation of s.7 of the Charter. Suresh (2002) SCC Facts The appellant was a Sri Lankan citizen of Tamil descent, who entered Canada and was later recognized as a Convention refugee. He applied for landed immigrant status in Canada, but his application was not finalized b/c gov’t issued a certificate alleging inadmissibility on security grounds, based on information that he was a member of the LTTE that was 49 engaged in terrorist activity in Sri Lanka. Minister considered him to be danger to the public that he should be deported even when refugee’s life would be in danger. The appellant was not provided with a copy of the IO’s memorandum. Held The guarantee of fundamental justice under S7 of the Charter applied even to deprivations of life, liberty or security effected by actors other than our government if there was a sufficient causal connection b/w our government’s participation and the deprivation ultimately effected. o International law, which was the norm that best informs the content of the principles of fundamental justice under S7 of the Charter, rejected deportation to torture even where national security interests were at stake. If a refugee facing deportation established that torture was a real possibility, the Minister had to provide the refugee with all the relevant information, provide the refugee an opportunity to address that evidence in writing, and after considering all the relevant information, issue responsive written reasons. This was the minimum required to meet the duty of fairness and fulfill the requirements of fundamental justice under s.7 of the Charter. o Here, the appellant made a prima facie showing that he might be tortured if returned to Sri Lanka. Accordingly, he should have been provided with the procedural safeguards necessary to protect his S.7 right not to be expelled to torture. REMOVAL A48: Enforcement of Removal Order: A removal order is enforceable if it has come into force (meaning under A49) and is not stayed. o Effect: if a removal order is enforceable, FN against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable. Note “reasonably practicable”: There is considerable jurisprudence on the issue of the extent of the discretion of removal officers who arrange for the execution of removal orders. This issue has become increasingly important because in many cases, requests to defer removal that are refused become the foundation for applications for stay of removal. * Leading case on this issue is Wang. Wang (2001) FCT Facts The applicant’s refugee claim was declined, and have pending H&C application. He was ordered deported. The removal officer refused to defer removal pending disposition of H&C application. The applicant applied for 1) a judicial review of the removal officer’s decision not to defer and 2) a motion for stay of execution of the removal order. Held 50 Application for stay dismissed. o Where the motion for stay is in relation to a refusal to defer removal, granting the stay gives the applicant what the removal officer refused. Parameters for the decision of the deferral for removal o Where the refusal to defer raises a “serious issue to be tried”, the Ct should grant the stay. “serious issue to be tried” simply means that the issue is not frivolous. The applicant should show that the decision not to defer was subject to review for error of law, jurisdictional error, factual error made capriciously, or denial of natural justice. o Removal officer has a limited discretion that could be exercised only in a manner with the Act and Regulations. The availability of an alternate remedy, such as a right of return, should weigh heavily in the balance against deferral. o Deferral could be considered if it was necessary to assess risk or medical issues related to return. Deferral should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment in circumstances where the deferral might result in the order becoming inoperative. Thus, absent special considerations, an H&C application which is not based upon a threat to personal safety would not justify deferral b/c there is remedy other than deferral. Prasad (2003) FCT Facts The applicant came to Canada as a visitor and claimed refugee status. He was severely injured, requiring surgeries and physical therapy as well as psychological treatment. Refugee claim was refused and ordered deported. He requested removal deferred, but the request was denied. He applied for judicial review. Held The application for judicial review was allowed, as the Ct found that the officer’s decision was patently unreasonable and based on erroneous finding of fact made in a perverse and capricious manner and without regard for the evidence. A failure to consider compelling individual circumstances, such as personal safety or health issues, may constitute an unlawful fettering of the officer’s discretion. o On the other hand, the mere existence of a pending H&C does not warrant a deferral of removal; nor is it the enforcement officer’s job to evaluate the merits of an H&C application. Benitez (2001) FCT Facts Applied for judicial review of the decision of a removal officer wherein officer refused to 51 defer the removal pending the determination of H&C application. Submitted psychological report suggesting risk of committing a suicide. Held Dismissed. The removal officer did not have the discretion to consider H&C factors in determining whether or not to defer removal. No exceptional circumstances o Officer concluded that no serious risk of suicide. Simoes (2000) FCT Facts Motion for an order staying her deportation, pending the determination of her H&C application, requiring the respondent to consider the best interests of the applicant’s two Canadian children prior to deportation. Held Allowed In deciding when it is “reasonably practicable” under A48 for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to traveling, and pending H&C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. o Here, consideration of the disruption of schooling of applicant’s child (ie, defer until child terminated her school year) is held to be within the removal officer’s discretion to defer removal. Removal order is not always enforceable at the time they are issued. If the person has a right of appeal or has made a claim for refugee protection, the order becomes enforceable only after the appeal or claim has been determined. A49(1): In Force: removal order becomes enforceable: o The day the removal order is made if there is no right to appeal; o The day that the time for filing an appeal expires if there is a right to appeal but no appeal is lodged; or o The day that the appeal is dismissed if the person files an appeal A49(2): In Force-Refugee Claimant: removal order made against persons who claim refugee protection are conditional and become enforceable only when: o On the day the person is found ineligible if the ineligibility is based on coming through a designated third country; o Seven days after the determination if the person is found ineligible on any other grounds; or o 15 days after the person is notified that the claim has been withdrawn, abandoned or rejected. If a removal order is enforceable, it can still in certain circumstances be stayed as a 52 result of the operation of IRPA. A50: Stays: a removal order is stayed in the following circumstances o If its execution would violate an order of a judicial proceeding at which the Minister has been given an opportunity to appear; o If the person has been sentenced to a term of imprisonment, then until the term is served; o If a person is granted a stay by IAD or by the Minister under A114(1)(b), then for the duration of stay 2 kinds of Stay for Removal Orders R230: Minister may impose a stay on removal orders wrt a country or a place if the circumstances in that country or place pose a generalized risk to the entire civilian population as a result of o An armed conflict within the country or place o An environmental disaster resulting in a substantial temporary disruption of living conditions; or o Any situation that is temporary and generalized. However, Minister will cancel the stay if circumstances above no longer exist The Stay not applicable for the person who is inadmissible under A34-37. R231: Refugee claimant- Judicial reviews. Problem In 1980, Albert came to Canada as a permanent resident when he was ten with his mother and two brothers. When he was seventeen his mother took out citizenship but didn’t include Albert in the application. His two brothers applied on their own several years later. Albert was married in 1995 and has two children. His marriage only lasted five years and he was divorced. He tries to have a good relationship with his two children who are now 6 and 4 years old. He sees them at least twice a week and pays monthly support in the amount of $600. In 1999 Albert fell in with the wrong crowd. Although he had never had any run ins with the law before he became involved in a credit card fraud scheme. He was caught and convicted of five counts of fraud over. He had spent eight months in pre trial custody and was sentenced to a further twenty months in prison. Immigration convoked an admissibility hearing and Albert was ordered deported. He consults you one week after the deportation order was issued and asks what his options are? Advise him. 53 What evidence should Albert obtain in order to assist himself with his immigration problems? What factors will the authorities consider when assessing his case? From class note: <Problem> • Inadmissible: S33. serious criminality: over 10 years or more. • A36(1)(a) • Conviction inside or outside Canada (Guaranteed exam question) ० if outside, what do you have to do? Compare the components ० What was the punishment? ० If no conviction, what? ० If you have been charged in Canada, not a reason for deportation. Only conviction in Canada. ० If charged outside and you are in Canada, then this can be a reason for the deportation? Yes • Albert is inadmissible under A36(1)(a) • Right of appeal: A63(1) ० Does he have the right? ० A64(2): exception for the right of appeal: imprisonment of two years ० Whether pre-trial custody, 8 months out 28 months is counted for 2 yea r imprisonment ० It will be decided in the court. • Any other option for Albert if not appeal? H& C application A25(1) • Or PRRA: R160: they can give a notification at any time ० A44 not applicable: too late to ask IO not to use his discretion. • A44[x] A36(1)(a)[o] A63[o] A64[?] H&C A25[o]: evidence A63: evidence Removal, deferral, stay PRRA Aeri’s note: Albert question – Married and divorced – Involved with fraud 54 What are the issues – why is he inadmissible? Exam question on this crim issue - fraud – serious criminality – threshold -- punishable by more than 10 years -36(1)(a) – inadmissible on ground that they convicted -always the first – has the person been convicted? - can he be removed – yes or no depends on whether the person is inside or outside Canada -equivalency is important – compare inside and outside -Albert is a PR – does he have an appeal under section 63(3)? Yes he does -when does the PR lose his rights to appeal? 64(2) (serious criminality means at least two years) – Albert has 20 months sentence and 28 months pretrial custody – do we count this or not? We don’t have answer this yet – it’s on its way to the fed court when advising Albert – must tell him that you may or may not appeal – tell him what the issues are on the equitable appeal – consider those cases— -assuming that he doesn’t have the right to appeal -- is there any other options to appeal? H&C application, PRRA (regulation s. 160 – notification can be given anytime after the removal order is enforced) *Do the analysis, inadmissible, implication, can’t do sec. 44(too late) right under 63(1)(a) and bring in evidence, if affected by 64, may or may not have the appeal than go for H&C application (s. 25) (bring in evidence) or you can do PRRA or you can order for removal deferral stay 55 12) JUDICIAL REVIEW IRPA sections 72-74 Federal Court Act sections 18.1 and 18.2 Federal Court Immigration and Refugee Protection Rules Cases Bains, Hosein, Liyanagamage, Said, Soimu , Fast Discuss the leave procedure. Why was the leave requirement introduced? What restrictions are there on the right to appeal to the court of appeal. Why were those restrictions introduced? What is the standard of review used by the court sitting in judicial review? What kinds of matter can be brought to the Judicial Review? o A decision, determination or order made, a measure taken or a question raised under IRPA. o Grounds for review: p538 Role of the fed court - to supervise the bureaucracy who make immigration decision How do you make this effective? – by defining leave – you file a written application which is reviewed by the judge rather than arguing in front of a judge – this is an efficient way of disposing an application – o BUT it reduces the accountability of the court and reduces the transparency of the process o No way if your application for leave is denied. Jurisdiction of the federal court o Judicial review of decision made under IRPA is subject to A72-75. The powers of Federal court to review decision come from S18 of the Federal Courts Act. What decision is reviewable? o The decision must be one that finally determines all of the rights of the person concerned. Does a decision made in response to a request for Reconsideration constitute a decision that is subject to the judicial review? 56 o When an officer reviews it on the merits, this new “decision” gives rise to a right to seek judicial review o However, if the officer does not engage in any substantive review of the initial decision, but merely affirms the previous decision, no right to seek judicial review arises. Soimu (1994) FCT Facts Considered whether a second letter by a visa officer was a decision subject to an application for judicial review or was merely an affirmation on an earlier decision. Since the applicant was late for the notice of motion in respect of the initial decision, it was the only chance through which he can have a judicial review. Held The second letter should be considered a new decision and hence subject to an application for judicial review. o The official reconsidered her previous decision and also considered new material that might have, although did not, changed her decision. Since it is a new decision, the time periods for filing the application for leave and judicial review would commence to operate only after the rendering of the reconsideration. Leave Requirements for Judicial Review A72(1): Judicial review may be commenced only with the application for leave of the court. A72(2): Application for leave o for decisions taken inside Canada, leave must be commenced within 15 days of receipt of the decision by the person concerned. Within 60 days for outside Canada. o The application for leave may be commenced only after the person has exhausted all appeal rights available under IRPA. o A judge of the Court shall dispose of the application w/t delay and in a summary way without personal appearances. Criteria for granting leave Whether or not a fairly arguable case is disclosed for the relief sought if leave were to be granted (Bains) Content of the application for leave and material in support of the application (Page 151) o Content of the Application for Leave Name of the officer, date of decision, etc.; Purpose of application: quashing the decision made or directing officer to render the decision; Grounds: errors of law, breaches of natural justice; Whether or not you received written reasons; 57 o Material in Support of the Application Application record: application for leave, result of decisions and reasons, affidavits that you rely on based on what you personally know, not including what you are told. Affidavit – evidentiary basis is critical to establish the case – transcript will be the best way – the board doesn’t provide transcripts or, you can have affidavit from a former lawyer or a client. You need that evidence to establish your point! Tribunal transcript is the best way to say that the tribunal misconstrued the evidence! Obtaining written reasons from the tribunal (Page 152): important b/c it affects the calculation of the time period for the perfecting of the record by the applicant in support of application for leave. o The person must file and serve the application for leave within the prescribed time. In the application for leave the person must indicate if he has received the written reasons. If written reasons were received, the person must file his application record within 30 days. If not, the time for filing the application record will only commence when the written reasons are received. Pre-requisite for an Appeal to the Court of Appeal A74(d): appeal to the Ct of Appeal may be made only if the judge certifies that a serious question of general importance is involved and states the question. o In order to be certified, a question must be one which, in the opinion of the motion judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application. However, it must also be a question that is determinative (Liyanagamage) Motion for Stay The court may grant interim relief pursuant to S.18 of the Federal Court Act pending disposition of the application or judicial review. The most common form of relief sought is stay of deportation. There would now appear to be no dispute that the court has the jurisdiction to grant a stay. Three part test for stays for motion for stay 1. Serious issues: A. not frivolous or vexatious B. Wang: if you requested deferral of removal, then higher threshold. ० Where the motion for stay is in relation to a refusal to defer removal, granting the stay gives the applicant what the removal officer refused. 2. Irreparable harm 58 A. Judges show different views, but commonly accepted view is that norma l inconvenience associated with deportation is not considered as irreparable harm B. Ex. Business that the applicant put much investment is at risk if deported, medical conditions, and financial conditions. C. Any argument for PRRA: issue is one of risk: let judge have a doubt o f risk assessment so that not sending to the country of risk. 3. Balance of convenience (balancing of applicant’s interests and public interest) A. Applicable for injunction where affects a large group of people. B. For individual deportation, it is rare that issue of public interest arises. C. Thus, once irreparable harm found, then normally public interest concern does not outweigh. Said (1999) F.C.A. Facts This is a motion to stay the removal order. Applicant was sentenced to five years’ imprisonment for trafficking in heroin. The Minister found that he was a danger to the public and made a removal order. Judicial review judge certified two questions for appeal. Minister alleged that there would be irreparable harm to the public interest if the removal order were stayed, as it was expensive to keep the applicant in custody. Appeal was launched with motion for stay. Held Motion for stay allowed. 1. Serious issues? o Two certified questions by the motion judge raise serious issues 2. Irreparable harm? o No real dispute that the appellant could suffer persecution, ill-treatments and death if deported 3. Balance of Convenience o Public interest Public interest expressed in terms of costs of detention since applicant should remain in custody due to the danger to the public. o Applicant’s interest If a stay is not granted, it is evident that his appeal will be rendered nugatory since, as a result of deportation, he would not be able to benefit from any relief that the Canadian courts could grant him o Moreover, this is not a case where the public interest considerations involve a large number of persons likely to be detrimentally affected by the decision to order a stay of removal, except for the costs of the Appellant’s custody. Solution would be to try to speed up the legal process on the litigious issues. o Thus, the balance of convenience favours the Appellant. Husein (1992) FCT 59 Held The Federal Court has the discretion to order a stay in situations where an issue before the Court would be moot or where the Court’s jurisdiction had been rendered nugatory by a failure to grant a stay. Here, the applicant had not proven that irreparable harm would result from allowing the inquiry to proceed, since it had not yet concluded, and he could seek judicial review after it had been completed. What can be judicially reviewed? Fast (2001) FCT Motion to strike application for leave does not cover cases where there is a debatable issue as to the adequacy of allegation. STAYS • Client got deportation order. What should be done? 1. Does the person have the right of appeal? If yes, go back to A48-9 2. Is it enforced? 3. Is it stayed? 4. If not having a right of appeal removal order enforced. Does the pers on have a right to PRRA? 5. Considering filing HC? Any HC factors? However, just filing HC does not stay removal order. 6. after PRRA, potential for judicial stays 7. Ct cannot grant a stays at a vacuum. 8. if justice find that reason for 9. get a negative PRRA and go to Ct. 10. Requested defer of removal: once get negative PRRA, then officer execu te removal order. Before officer if you have HC application and decisio n pending, then can request deferral. 60 Section 7 of the Charter S.7: “Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Analysis from Blencoe To trigger its operation 1. There should be state action which directly engages the justice system and its administration. Matters arising out of immigration context ok. 2. There must first be a finding that there has been a deprivation of the right to "life, liberty and security of the person" Client’s right are seriously infringed. o Liberty interest: S. 7 must be interpreted broadly and in accordance with the principles and values underlying the Charter as a whole, and not restricted to mere freedom from physical restraint. The right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to a sphere of personal autonomy wherein individuals may make inherently private choices free from state interference. The autonomy protected by the s. 7 right to liberty is limited to those matters that can properly be characterized as fundamentally or inherently personal interest such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence. e.g., choice of where to live is a fundamental choice is within fundamental personal interest (Godbout v. Longueuil) Deportation (Romans): the consequence of the issuance of the deportation order against an individual is profound. The deportation order prohibits Mr. Romans from making the fundamental personal choice to remain in Canada where he receives the love and support of his family, financial support, and the support of his social worker and the health-care system. o Security of the Person: a right related to stay free from “serious state-imposed 61 psychological stress”. However, not all forms of psychological prejudice caused by government will lead to automatic s. 7 violations. Two requirements that must be met in order for security of the person to be triggered. First, the psychological harm must be state imposed, meaning that the harm must result from the actions of the state. Second, the psychological prejudice must be serious. In this case, held that stress not imposed by the state and S.7 does not include a generalized right to dignity, or more specifically a right to be free from the stigma associated with a human rights complaint. 3. The deprivation is contrary to the principles of fundamental justice. o Contextual approach Balancing b/w interest of state and of individuals. Shock the conscience: conscience of reasonable Canadian. o Refer to Suresh below o This is where reference to international law should kick in. e.g., UN Human Rights Committee: which supports the view that long- term residents have an absolute right to live in the country to which they have immigrated notwithstanding the state's interest in expelling them due to criminal activity. It is up to the Court to accept these arguments. But it seems that no other way around. o Struggle here is to get around the huddle that Chiarelli has set: “Parliament has the right to enact legislation prescribing the conditions under which non-citizens (especially PR) will be permitted to enter and remain in Canada.” If non-citizens do not abide by these conditions, no S.7 of Charter will be infringed nor no fundamental justice violated, even if deported. In Romans, tried to distinguish Romans by age and mental illness, but rejected. If we reargue Romans, what new evidence would you put before the judge? Lack of social services, family support Shock of conscience to general public in Canada: Conseque nces of deportation of Romans would be too severe for Ca nadians to condone. Suresh (2002) SCC * Principles of fundamental justice Issue The only question is whether this deprivation of life, liberty, or security of the refugee by deportation to torture is in accordance with the principles of fundamental justice under S.7 of the Charter. Held 62 The principles of fundamental justice are to be found in "the basic tenets of our legal system." "They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system." The relevant principles of fundamental justice are determined by a contextual approach that "takes into account the nature of the decision to be made" (Kindler). The approach is essentially one of balancing. o Here, determining whether deportation to torture violates the principles of fundamental justice requires us to balance Canada's interest in combating terrorism and the Convention refugee's interest in not being deported to torture. o A person constitutes a "danger to the security of Canada" if he or she poses a serious threat to the security of Canada. The threat must be "serious", grounded on objectively reasonable suspicion based on evidence, and involving substantial threatened harm. o Balancing is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interest at stake and the serious consequences of deportation for the deportee. The inquiry into the principles of fundamental justice is informed not only by Canadian experience and jurisprudence, but also by international law. o International law: this takes into account Canada's international obligations and values as expressed in "[t]he various sources of international human rights law - - declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, [and] customary norms" The Canadian Perspective Test for whether the conduct violate the fundamental justice = conduct that would "shock the Canadian conscience" o Without resorting to opinion polls, which may vary with the mood of the moment, is the conduct fundamentally unacceptable to our notions of fair practice and justice? o The court held that Canadians reject government-sanctioned torture in the domestic context. The guarantee of fundamental justice applies even to deprivations of life, liberty or security effected by actors other than our government, if there is a sufficient causal connection between our government's participation and the deprivation ultimately effected. o At least where Canada's participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canada's participation, the government does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else's hand. Canadian jurisprudence does not suggest that Canada may never deport a person to face treatment elsewhere that would be unconstitutional if imposed by Canada directly, on Canadian soil. To repeat, the appropriate approach is essentially one of balancing. 63 This said, Canadian jurisprudence suggests that this balance will usually come down against expelling a person to face torture elsewhere. International Perspective The provisions of the Immigration Act dealing with deportation must be considered in their international context. A complete understanding of the Act and the Charter requires consideration of the international perspective. International treaty norms are not, strictly speaking, binding in Canada unless they have been incorporated into Canadian law by enactment. However, in seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada's international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look to international law as evidence of these principles and not as controlling in itself. In international law, the prohibition on torture is an established peremptory norm. We conclude that the better view is that international law rejects deportation to torture, even where national security interests are at stake. This is the norm which best informs the content of the principles of fundamental justice under s. 7 of the Charter. Conclusion from Canadian and international jurisprudence: barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter. In Canada, the balance struck by the Minister must conform to the principles of fundamental justice under s. 7 of the Charter. It follows that insofar as the Immigration Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture. Note Duty of fairness in Suresh Section 7 of the Charter does not require the Minister to conduct a full oral hearing or judicial process. However, a refugee facing deportation to torture under s. 53(1)(b) must be informed of the case to be met. Subject to privilege and other valid reasons for reduced disclosure, the material on which the Minister bases her decision must be provided to the refugee. The refugee must be provided with an opportunity to respond in writing to the case presented to the Minister, and to challenge the Minister's information. The refugee is entitled to present evidence and make submissions on: whether his or her continued presence in Canada will be detrimental to Canada under s. 19 of the Act; the risk of torture upon return; and the value of assurances of non-torture by foreign governments. The Minister must provide written reasons for her decision dealing with all relevant issues. These procedural protections apply where the refugee has met the threshold of establishing a prima facie case that there may be a risk of torture upon deportation. The appellant has met this threshold. Since he was denied the required procedural safeguards and the denial cannot be justified under s. 1 of the Charter, the case is remanded to the Minister for reconsideration. 64 Grewal (1992) C.A. Facts The applicant, a landed immigrant, had been convicted of attempted murder in Canada and was ordered deported. Held Section 7 requires that a refugee claimant be given ample opportunity to have new evidence of potential persecution in his home country heard and fully considered by an authoritative body. This requirement was met. The applicant was afforded ample opportunity to present his new facts in one form or another to several authoritative bodies. While the new facts may not have been examined exactly as he would have liked, fundamental justice does not prescribe a particular method of dealing with legal or factual issues. Romans (2001, FTD) Fact: PR, came to Canada at 2 and now 35.because of mental illness, drug, assault conviction. No medication does not cure him. Deportation order. Issue 1. section 7 2.were the IAD’s findings of fact patently unreasonable? Held a. The consequence of the issuance of the deportation order against an individual is profound. The deportation order prohibits Mr. Romans from making the fundamental personal choice to remain in Canada where he receives the love and support of his family, financial support, and the support of his social worker and the health-care system. I am satisfied that in the circumstances before me the issuance of a deportation order pursuant to subsection 27(1) and subsection 32(2) of the Act engages section 7 of the Charter. b. The next inquiry therefore is whether the deprivation of Mr. Romans' liberty interest is in accordance with the principles of fundamental justice. Long-term resident, product of Canada. Despite the compelling argument of Mr. Romans' counsel, I am unable to distinguish the decision of the Supreme Court of Canada in Chiarelli which is binding upon me. I cannot conclude that the Supreme Court's decision was predicated upon the age or capacity of Mr. Chiarelli. Waldman want to distinguish on account of age and illness. c. Mr. Romans' counsel did not challenge the finding of the Appeal Division that there is a very high probability that Mr. Romans would re-offend. Given that, his record of prior assaults, and the fact that medication does not appear to control his mental illness, I cannot find that the conclusion of the Appeal Division that there is a very high probability that Mr. Romans would re-offend and that the offences would be violent in nature is patently unreasonable. d. FCA: without deciding s.7, no fundamental justice. 65 s Section 7 approach. (reference to Hogg) 1. Government action. 2. Application of section 7. In Singh (1985), s.7 rights could be asserted by every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law. 3.Two step test I. Section 7 engaged? a. Liberty -Blencoe: liberty in s.7 no longer restricted to mere freedom from physical restraint. It applies whenever the law prevents a person from making “fundamental personal choices” b. Security -Morgentaler: the risk to health that was caused by the law was a deprivation of security of the person. -G.(J.): an application by the state to remove children from a parent and place them under the wardship of the state affected the security of the person of the parent. Security of the person was affectedk because govt action would constitute “ a serious interference with the psychological integrity of the parent” -professor Whyte: security of a person includes the economic capacity to satisfy basic human needs. But this view was rejected by SCC in Gosselin. II.Fundamental Justice -B.C Motor Vehicle Reference: fundamental justice cover substantive as well as procedural justice and it is found in the basic tenets of the legal system. -Use constitution is a living tree documents. -Rodriguez: “fundamental” in the sense that they would have general acceptance among reasonable people. -Schmidt:extradition case. Punishment under foreign law that “shock the conscience of or simply unacceptable to reasonable Canadians. 4.Conclusion :combine Blencoe and G(J) with Rodriguez and Schmidt and argue that charter is a living document so that Chiarelli must be considered today in light of recent jurisprudence. *Burns & Rafey: in Suresh. 66 14) INTERNATIONAL HUMAN RIGHTS AND CANADIAN IMMIGRATION LAW What international treaties can potentially impact on the discretion of the Minister to deport non citizens? Which treaties have been incorporated into Canada’s immigration law. What is the effect of an unincorporated treaty that Canada has ratified. What other mechanism is there for incorporating international law into Canada’s immigration law. Cases: 1. International covenant on civil and political rights and optional Protocol (section 6,7,9,10): winata: human rights committee 2. the convention against torture and optional protocol (section 1 and 3) 3.Baker (pa 69-71) 4.Martinez: the convention on the rights of the child 5.Khan, Karouri: decisions of the committee against torture International Law Exam purpose: only need to look at How international law is related to S.7 of Charter. Objective: Relate international law stuff to S.7 Charter argument. In the exam see whether international law is applicable and discuss how it works and what the limitation is. Use Baker as a main source for using international law as assistance to the contextual approach of interpreting domestic law including Charter. Under Article 3 of Convention against Torture: absolute prohibition of torture: it provides absolute right if possibility of torture: thus, individual has recourse under this. o “1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” 67 o Normally only state is subject to int’l law, but Canada accepted jurisdiction for individuals by signing an optional protocol. Thus, individual has recourses. “enable the Human Rights Committee set up in part IV of the Covenant (hereinafter referred to as the Committee) to receive and consider, as provided in the present Protocol, communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant.” First Role of int’l law After Chiarelli: FN seems to have no recourse, thus a lot of reliance on int’l law since this decision o In that case: only exceptional cases not allowed to be sent back to the place where the risk of torture exists. Inform the Charter: how s.7 of the Charter can be interpreted. o When we look at fundamental justice, we do not look at it at a vacuum, not with just Canadian law, but with international law. Fundamental justice: all about balancing arguing individual interest is more compelling than interests of the state. So far Charter and international law come into play for only torture cases o Romans: Products of Canada, thus sending him back to the country where the danger of torture exists is in breach of fundamental justice. Through the Charter: SCC said charter rights of freedom coming from domestic law and int’l human rights law. When Ct interprets the concept of the principle of fundamental justice, the Ct should have the recourse to Canada’s obligation to international human rights law. o Second role 3 methods of complaints mechanism (last class) o Each committee has their own jurisdiction o Generally speaking, individuals are subject to Canadian law, but int’l is about obligation b/w states. Individual generally come into play as a representative of the states. However, b/c of the protocol, individual can play International Complaint Process o A) Exhaust all reasonable remedy Ex, expected to apply for H&C. o B) You can only complain against one out of three: all three have jurisdiction over individual complaint Committee against Torture Human Rights Committee Inter Amer Can Commission (Human Rights) All three has its own precedents: do written legal submission specifying which part of law is violated by Canadian gov’t Gov’t Canada has 6 months to responde 68 Process usually takes 2 years. During this process, stay of removal order from interim measures may or may not be possible: totally upto gov’t to decide. If high profile case, may be. o Case like Romans might be the type of cases that should go to the committee. These committees do not have legal power to enforce decision, only moral suasion. o Moral suasion is more powerful with gov’t like Canada than other countries that mainly make their decision based upon political and economic cost. Procedures for complaints mechanism o You can go to one committee at one time o Submission should be done in writing. o 2 years usually until get a decision Another mechanism: Let committees above criticize Canadian gov’t for not providing adequate recourse. Weakness of International Law Most fundamental weakness of int’l law: o Not enforceable in Canada (not a part of domestic). Government can easily argue that domestic interest outweighs. o Not easy to ascertain Process: Int’l treaties have to be ratified in Canada, and enacted to become fully enforceable. Benefit of International law Then why do we care about int’l law if not easy to enforce and ascertain? o Use int’l law to force government to change its views o It may not work, but possible embarrassment to gov’t to criticize using torture: very serious debate within the gov’t of bureaucracy. o Khan o May be useful exercise if you have no other remedy. Gov’t may or may not comply Baker para 69-71(1999,SCC) International treaties and conventions are not part of Canadian law unless they have been implemented by statute. The Convention has not been implemented by Parliament. Its provisions therefore have no direct application within Canadian law. Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. The important role of international human rights law as an aid in interpreting domestic law has also been emphasized in other common law countries: It is also a critical influence on the interpretation of the scope of the rights included in the Charter. Khan v. Canada (1994, committee against torture) 69 Facts torture in pakistan Held 1. Article 3 of convention against torture and other cruel, inhuman or degrading treatment or punishment. 2. in the present case substantial grounds exist for believing that a political activist like the author would be in danger of being subjected to torture. It notes that the author has produced a copy of an arrest warrant against him, for organizing a demonstration and for criticizing the Government, and that moreover he has submitted a copy of a letter from the President of the Baltistan Student Federation, advising him that it would be dangerous for him to return to Pakistan. Moreover, the Committee considers that, in view of the fact that Pakistan is not a party to the Convention, the author would not only be in danger of being subjected to torture, in the event of his forced return to Pakistan, but would no longer have the possibility of applying to the Committee for protection. Decision Interim measure. DUTY OF FAIRNESS Outside of Canada Muliadi Visa officer has a duty to act fairly. Although not entitled to a full hearing, he should have been given an opportunity to meet the negative govt assessment before the assessment was acted upon the vias officer. (Also in Kazi) Chiau: Duty of fairness outside Canada does not require the disclosure of a summary of the confidential information that might result in damage to national security upon which refusal is decided. Inside Canada Baker • Values underlying the duty of fairness is that individuals affected should have the opportunity to present their case fully and fairly. • Officer’s obligation to give reasons: office must justify his reasons • Full participation right required, but no absolute right to hearing or interview. The opportunity to produce full and complete written documentation was sufficient. Haghighi Applicant for permanent residence on H&C grounds had to be fully informed of the content of PCDO’s risk assessment report and had to be given the opportunity to comment on it, 70 even though the report was based on information that had been submitted by or had been reasonably available to the applicant.
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