IMMIGRATION LAW- CLASS NOTES

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IMMIGRATION LAW- CLASS NOTES Powered By Docstoc
					May 9, 2000

INTRODUCTION

Constitutional Jurisdictin over Immigration
Division of Powers

   Immigration is exclusively within fed‘l jurs; so, feds pay

        Note: Quebec has it‘s own Immigration Act and it‘s own consulates abroad; all
        you have to do is say that you are willing to become Francophone (there is a high
        concentration of Romanians in Quebec); so Quebec gets to chose and the feds pay.

   essentially, the fed‘l gov‘t is not standing on their legal right to control immigration;
    so is the Quebec Immigration Act ultra vires? If so, who would challenge it?

        -someone who has been admitted to Quebec
        -average Canadian lacks standing
        -Fed‘l gov‘t is the only real choice and they would never do this for political
        reasons

Section 33
 5 year limit
 neither the fed‘l Conservatives or Liberals have ever used s. 33

Singh (1995) SCC
Wilson: s. 7 was violated and paper reviews were considered unfair wrt refugees. Three
judges ―breathed life‖ into the Bill of Rights…but, this was ignored in Chirelli.

Chirelli (1992) SCC
Facts: been in Canada since he was 5 years old but was not a Cdn citizen; as an adult
became criminally involved (CSIS and RCMP had files on him). Canadian citizens can
not be removed, unless they obtained citizenship by fraud; it is virtually impossible to
have revoke your Cdn citizenship personally; he was going to be deported to Italy (but, he
had no relatives, contacts, anything in Italy)
Recall: at CL, the monarch had unfettered power
The Fed‘l gov‘t responded by tightening up the Immigration Act wrt removal
Sopinka (unanimous) s. 7, 12, 15 all were Constitutionally valid; deferred to the
legislators to deal with it. Leap frogged over Wilson‘s reasoning in Singh and did not
refer to it, rather referred to Prata : as long as the Act is intra vires, and the administrators
comply with the Act, no problem.

R. v. Govenor of Pentonville Prison, ex parte Azam, [1973]




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Lord Denning: ―at CL, no alien (―foreign nationals‖) has any right to enter this country
except by leave of the Crown; and the Crown can refuse leave without giving any
reason…He has no right whatever to remain here. He is liable to be sent home to his own
country at any time if, in the opinion of the Crown, his presence here is not conducive to
the public good; and for this purpose, the executive may arrest him and put him on board
a ship or aircraft bound for his own country‖.

May 11, 2000

Canada has a very low birth rate: 1.8 and we have an ever aging population; thus, we
NEED immigration!

Historically, Canada has recruited immigrants to do jobs that Canadians do not want to
do.

Canadian Bill of Rights had no power; leading case: Prata as long as the Act is intra vires
and the administrators comply with the Act, there is no problem.

The Charter has had a HUGE effect.

Canadians and Americans have been trying for years to come to an agreement

“If you have arrived in Canada, indirectly or directly, from a “safe third country”
country prescribed in s. 114(4)(s) of the Schedule you would not be granted refugee
claim‖ ….…problem is that there is no schedule and no countries are prescribed. The
cabinet can not agree to prescribe the U.S. (If we could this would seriously limit the
number of refugees as most do come from the U.S….we wouldn‘t even need a 300
member IRB!)

PERMANENT RESIDENT has the same meaning as under the Income Tax Act: you are a
resident of a place if it is your intention that the place be your residence.
 you can return to Canada at any time if you are a citizen, but not necessarily if you are
    a permanent resident….(????)

1998-1999 bill was introduced to pass the Canada Citizenship Act
 one of the contentious areas of this bill was that to become a citizen, you have to be
   actually a resident for a prescribed period of time (4-6 years) (―you must rub
   shoulders with Canadians and become Canadianized, not merely your furniture, you
   personally‖)
 this bill ―died‖ rapidly…seems like several constituents contacted their Liberal MP‘s
   and informed them of their distaste for this.

LOSS OF CITIZENSHIP: the only way you can lose citizenship is if you obtained your
citizenship by fraud---only time that this has happened is in the case of war criminals
(have to show that you hid your war crimes or crime against humanity).


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Attitude to take when approaching case/statute law: this is a statutory area, 99% is in
the act, the other 1% is in the Immigration Manual (the manual is not law); tons of case
authority, but most provide little guidance as to the future of the law (we will look at 20-
30 cases that have significant precedential value, however). HUGE DISCRECTION:
IRB can admit anybody even though they are accountable to parliaments; Manual says
that everything is subject to discretion. (Cabinet can say yes to anyone)

   all applicants and dependents must be checked wrt medical health and criminality
   there is absolutely no guidance in the cases in the Medical Inadmissability area.

David Matas: Canadian Immigration Law: p. 67 ―it is worth remembering that wrt to
immigration, there is no such thing as ―can‘t‖ it is ―won‘t‖….there is no reason to accept
a no if it is based on technicalities.‖
 thus, somebody who knows the system, an immigration lawyer or immigration
    consultant, is integral to assist a person seeking to immigrate to Canada (they have
    direct numbers, know who to phone, they get the file up and running).

2. THE HISTORICAL PERSPECTIVE: RACISIM, BIGOTRY AND
   POLITICAL IDEOLOGY

SELECTION
 Historically very Eurocentric.
 Normally, you just ―arrived‖ in Canada, there was no real immigration control
 First immigration leg‘n: Royal Perogative British Crown had total discreation
 At confederation: Constitution Act 1867 concurrent juris btwn fed‘l and prov‘l gov‘t
 First principled step in Canadian immigration law: Immigration Act 1869: was an
  exercise by the fed‘l govt to take control over immigration, other than that, it didn‘t
  amount to much
 Second principled step: Immigration Act 1906/1910: was the first act that dealt with
  selection of immigrants; selection could be dependent on nat‘l origin. First act to say
  that immigrants were people that Canada wanted and needed and selected; people
  who contribute to society. (Canada, U.S., Australia are the major recipients of
  immigrants; in Europe, there are generations of people without any permanent status,
  they have temporary status as workers
 At the turn of the last century, it was clear that Canada was not independent. Britian‘s
  grand plan for the empire had all kinds of specific detail about what Canada was to be
  about. The prairies was to be the ―bread basket for the empire‖, where wheat was to
  come from. There was concerted efforts to get workers to farm the prairies. Most
  Brits/Americans did not want to go live in cold Saskatchewan; eastern Europeans
  were keen to take advantage of the promise of free land (although, these people were
  not the first choice of Britian). Millions of central and eastern Europeans were put on
  trains and brought to Canada and dumped along the way. Canada was increasing its




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    population by hundreds of thousands of people annually. This was the first example
    of the selection of immigrants.
   Virtually no immigration in WWI, during the depression, or during WWII, picked up
    in the 50‘s (post war)
   Immigration Act 1952 got rid of facial racism in legislation; although such sentiments
    were still prevelant and were not abolished until the Bill of Rights 1960
   Immigration Act 1976/1978 precursor to the present Immigration Act; basic structure
    and categories are the same. Immigration Act Regulations 1978 are the same today.
   Significant amendments: January 1, 1989: established the IRB, and set up the new
    inland refugee determination process . These were the gov‘t response to the Singh
    case.
   Chinese Immigration Act 1900; 1923 repealed in 1947. Only leg‘n that dealt
    specifically with a par
   Immigration Appeal Board Act repealed in 1989 and replaced by the Immigration and
    Refugee Board that we presently have
   B.C. passed all sorts of leg‘n and were all disallowed by the Govenor General as
    being repugnant, or as being ultra vires.
   Quebec Immigration Act RSQ 1975/6(?)


May 16th

    2.1 Racism: Chinese, Japanese, East Indians, Jews, the quota system, preferred nation
        designation
Chinese Immigration
   Dunsmiur family was only too happy to have Chinese on Vancouver Island because
    they were really cheap to employ, and they were more than willing to exploit Chinese
    labourers.
   Economic jealousy

   White workers wanted to be paid more, wanted adequate work conditions…..

   The provincial government, effectively (although they passed all sorts of leg‘n that
    was declared ultra vires), had to deal with Ottawa.

   Ottawa est. a royal commission to study Chinese immigration to B.C. and it reported
    in 1885 Royal and Evidence 1885 .
     They found that Chinese immigration should be curtailed or stopped; added extra
        hoops to get into Canada
     Note: at this time, there was a real concern that B.C. might leave Canada
     Parliament responded by enacting the Chinese Immigration Act 1900. (recall,
        however, that the doors were not open for Chinese immigrants in any event)
   This act applies to: any person of Chinese origin or of Chinese descent.
   Complex act: every court had to have a controller of Chinese


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   Chinese people had no right to habeus corpus
   Head tax --- 1906= $500.00 (huge amount of money at that time--salary of Supreme
    Court justices was $1000.00--house in Toronto $150.00…..) Even if a Chinese person
    could come up with this amount of money, the gov‘t would drop the quota to some
    ridiculously low amount so that only say, 10 people would be admitted….this didn‘t
    change until the Bill of Rights came into force and such blatant racism was outlawed.
   Effectively, Chinese racism was stopped
     Chinese Immigration Act 1923 (was in force until 1948)

South Asian Immigration
   historically referred to as ―Hindus‖ (they were actually Sikhs)
   1897 first significant event in terms of South Asian immigration to Canada was when
    a group of Indian army personnel who were coming home from the U.K. to India, and
    stopped in Canada. They were impressed with the land, thought that it would be an
    excellent place to farm, were very interested in the possibility of coming to Canada.
    The Sikhs, even though they only represented about 2% of the Indian population, they
    were very powerful (they are the backbone, to this day, of the Indian army). The
    British never had a decisive military victory in Punjab, and they were very impressed
    with the Sikhs. The Sikh community was very wealthy.
   there were some Sikhs who came from California during the gold rush.
   Note: south Asians from British colonies were treated differently; Sikhs spoke
    English
   As with the Chinese community, there was ugly racism, race riots, economic jealously
    towards south Asian immigrants; lots of other overt racism: B.C. gov‘t prevented
    South Asians from being doctors, lawyers, pharmacists….Sikhs couldn‘t vote
   India was the jewel in the British Crown and as such Canada could not deal with
    South Asian immigrants as they had with Chinese immigrants
   So, the government appointed a deputy minister, William Lyon MacKenzie King, to
    do an investigation into this ―highly delicate situation‖, his report was filed in 1908
    Canada Department of Labour: Report of W.L. MacKenzie King on Immigration to
    Canada from the Orient and from India in particular (this was considered a brilliant
    report).
     Recall: there was a lot of tension btwn Ottawa and B.C. as B.C. was constantly
        threatening to leave Canada. As well, the British did not want to lose India, it was
        the richest place in the world (Germany was very interested in India and the
        British were terrorfied….Thus, this was a very contentious time. So, Whitehull
        basically told Canada that they needed to be very careful and that there was to be
        no Hindu Immigration Act of any sort.
     MacKenzie King takes a paternalistic approach (no reference to the disease and
        crime that was presumed to come from Chinese immigration); ―the tropical
        climate of India would render them incapable of immigrating to Canada…Canada
        should remain white, and the Indian subjects should stay in India, for the good of
        the Indian people themselves‖
     Head tax $100-200



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       Continuous Voyage Regulation: a person coming from Canada could only come
        from Canada if they had come from their country of origin and they had
        purchased their ticket from their country of origin. (keep in mind, this is totally
        discretionary and they would not enforce this reg‘n against whites)
        This regulation was challenged by the Canadian Pacific Company in the case:
                Re: Bahari 1908 BCSC: this was a technical case the CPC won
                Re: Nara Singh (Panama Maru) (1913) 18 BCR 506sailing in a
                       continuous voyage from Calcutta to Vancouver; when they arrived,
                       the Immigration officials did not want to let them off the boat.
                       There had been (Re: 39 Hindus (1913) 15 DLR 189)
                Re: Munshi Singh (1914) 20 BCR 243 (CA): no artisans, labourers, …lots
                       disallowed groups except farmers. The court found that the reg‘ns
                       were valid and that the people on the ship were not allowed to
                       disembark. They were not allowed to disembark in Calcutta as
                       well, instead they were taken to Budge Budge and there is
                       conflicting reports as to what happened, but 26 people were shot
                       dead and a few other people died subsequently from their wounds.
                       The worst characterization of this was that the British wanted to
                       make a spectacle of this to teach others a lesson.
   effectively, immigration from South Asia stopped.
   The Indian Gov‘t (well, actually British gov‘t) then made it a crime to encourage
    Indians to leave India and to go to Canada

Eastern European Immigration during the Depression
   recall, in times when economic times are good, immigration is usually welcome
    because there is a need for cheap service labourers
   1989 (Barbara Roberts) Whence they Came: Deportation from Canada 1900-1935;
    this book showed the rounding up on Eastern Europeans (Polish, Ukrainian, and to a
    lesser extent, Germans) for removal (note: you can be removed if you are unable or
    unwilling to support yourself or your dependents; there was no work at this time,
    everyone was on welfare) for getting in trouble with the law, being in the hospital….
     It is impossible to get accurate statistics on how many people were removed in
        this way, ―public charges‖. Tens of thousands of people went ―missing‖.

European Jews 1930-1945
Irving Aballa & Harold Tropper : 1990 None is Too Many
 the title of the book is a quote from a memo from the Minister responsible for
    Immigration instructing immigration officials to disallow Jewish immigrants
 note: there were 6-7 million Jews in Germany when the Nazi‘s came to power in
    1933; most were urban-dwellers (not farming people). A Jew was defined as
    someone with ¼ Jewish blood. (note: in the U.S., if you had one drop of negro blood,
    you were a negroe). Gradually, they started taking away rights, restricting business,
    then built concentration camps in 1932




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   the German policy was of Extrusion which means removal: we don‘t want to
    persecute Jews, we just want them to leave. At this time, no country wanted Jewish
    immigrants. They lost their citizenship and then countries like Canada would not
    admit them because they were ―stateless‖, or that they were ―enemy aliens‖

Thursday May 18, 2000

Canada actively kept out Jews from immigrating to Canada
The Cabinet basically said to the labour dept ―make this problem go away, keep Jews
out‖ justify exclusion:
 Jews do not assimilate (―melting pot‖: making immigrants like Canadians; this word
   is not used any more, now it is ―the ability to establish oneself‖ (motivation,
   enthusiasm, intelligence…) as well as Aryans
 Jewish therefore, suspected Communist/Marxist (stereotypical assumptions made in
   the face of evidence)
 If the prospective Jewish immigrant was a farmer, the immigration official was
   instructed to say ―not likely to stay on farm as Jews head to cities‖.
 If the prospective Jewish immigrant was not a farmer, ―not a farmer, Canada needs
   farmers‖.
 Recall: this pre-dates the UN Convention on Refugees (this pre-dates the UN!)
 Suffice it to say that Americans did make room for European scientists (Einstein was
   a very highly visible German-Jewish immigrant, was set up at Princeton, and in his
   memoirs he was absolutely profoundly unhappy; he was at Princeton at a time when
   Jews could not be hired at Princeton or even be students) ―if I am proved right,
   Germany will claim me as a German and France will claim me as a citizen of the
   world; if I am proved wrong, France will dismiss me as a German and Germany will
   dismiss me as a Jew‖
 After WWII started, Jews, who under German law were no longer Germans, but under
   Canadian law, were still Germans, were refused citizenship b/c they were considered
   an ―enemy alien‖; or a ―national of an enemy-occupied country‖; ―the family was not
   united‖ (we still have this, all families have to be united)
 When the gov‘t was moving to amend the Immigration Act in the 1970‘s, the Dep‘t of
   Manpower and Immigration released a report called: The Immigration (The 1974
   Green Paper) [JV7225C352] there is a section on ―History‖ and they say ―Canada
   has a proud tradition….but, occasionally, there have been some difficulties, and they
   refer to Europeans after WWII in about 3 sentences and then go on to say that this was
   motivated by the economic times and any immigrant that could support him/herself
   was admitted (clearly wrong!)


After WWII
1952 UN Report on Refugees
 an international conventional approach to asylum-refugees was established
 Europe was in chaos, and the UN was established to have a mechanism to deal with
    displaced Europeans


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   Facial racism was now considered very unpopular; the Chinese Immigration Act was
    repealed in 1946
   May 1, 1947 Statement of MacKenzie King: served notice that Canada had a problem
    with facially racist legislation ―it is of the utmost importance to relate immigration to
    absorptive capacity” (this term ―absorptive capacity‖ is still used; it is a matter of
    looking to the economy and to determine how much Canada‘s economy can handle;
    this is sometimes used in place of assimilation and to detail absorptive problems due
    to race, language…..)


    2.2 POLITICAL IDEOLOGY

   Nazi scientists were hot items---The US and the Soviets wanted scientists to build
    rockets, bombs, weapons, etc.
   Czech hockey players have an uncanny ability to easily immigrate to Canada
   In the US, if you are fleeing from a communist state and you ―touch down‖ on
    American soil, you can claim asylum
   American Baptist Churches (ABC) Case the ABC sued the American gov‘t saying that
    political ideology

    2.3 BIGOTRY: LESBIANS AND GAY MEN
   Philip Gerard: From Subversion to Liberation 1987 vol2 CJLS 1
   Before 1952, Canadian law was silent wrt homosexuality; however, a prudent lesbian
    or gay man, would likely not divulge this information readily
   1952 Immigration Act was amended and homosexuals became an entirely
    inadmissible ―homosexuals and persons living on the avails of homosexualism‖.
    There was no debate on this at all. (The first documented usage of this word is in the
    New York Times in 1951) At this time, every person is looking for Communists.
    Senator Joe McCarthy (and his sidekick Cohen) convinced Washington that
    homosexuals, persons who had problem with drink and adulterers were a ―weak link‖
    in their fight against communism b/c they were subject to blackmail. (note: Canada
    was also considered the ―weak link‖ b/c we were not seen as ardent ―cold
    warriors‖…so the US was putting pressure on Canadians and the newly revised
    Immigration Act passed with no debate

1960’s Liberation and Gay Pride: there were a number of incidents between Windsor
and Detroit where openly gay persons attempted entry to Canada. A memo was released
that said: ―don‘t do anything unless the homosexual makes it impossible to ignore‖.

May 23, 2000




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Get these notes!

May 25, 2000


Meech Lake Accord 1987
 to come into force, this accord had to be agreed to by all the provinces and the federal
  government by 1990---this did not happen
 if it had come into force, s. 95 of the Constitution Act 1867 would have been followed
  by s. 96----
   this would result in the federal government being required to (good faith)
       negotiate with the provincial government wrt immigration, and that the provincial
       government, as well as the fed‘l govt would be required to agree to any changes

CASE LAW re: Prov’l and Fed’l conflict

Christopher J. Wydrzynski Canadian Immigration Law and Procedure
 chapter on Constitutional law wrt immigration is still the source as nothing has
   changed in this area.

R. v. Governor of the Pentonville Prison, ex parte Azam [1973]
Lord Denning: ―The British legislature has tinkered with this area, but the starting point
is that: aliens have no rights: no right to come to the country, to stay, to work….(except
the right to not to be killed, arbitrarily)‖

Prata 1976 SCC
SCC cited Azam with approval

Sing 1985 SCC

Chirelli SCC
Leapfrogged over Sing (didn‘t even mention it) and cited Prata with unanimous approval


AG. v Kain 1906 Appeal Cases 542
1) The British Crown gathered the French authority over immigration
2) The British Crown, by asceeding the legislation, delegated this authority to the
   legislature


3) Thus, the federal has unfettered discretion, and this had been delegated to the
   legislature
Re Nakane 1908 vol 8 Western Law Reporter 19 BCSC (the entire BCSC sitting together)



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  All B.C. leg‘n, which was highly racist and designed to keep Asians out of B.C., was
   disallowed as being repugnant, or ultra vires
 The B.C. Immigration Act 1908 had a literacy requirement; various European
   languages were utilized
Held: the fed‘l leg‘n was paramount and thus, the act was ultra vires

Rex and Narang Singh vol 8 Western Law Reporter 790 BCSC (the entire court sitting
together)
 B.C. Immigration Act 1908
Held: The legislation was ultra vires ―The Dominion Immigration Act gave full authority
over immigration, there is no room for the provinces to legislate here
Man
4) The federal parliament has unlimited/unfettered authority, to enact racist leg‘n if they
   want
Re: Munshi Singh 1914 vol 20 BCLR (BCCA)
held: the gov‘t of Canada can be totally racist if they want


Useful resources:
 Bruce Racism and the Constitution: Anti-Asian Immigration Legn 1991 vol20
   Osgoode Hall Law Journal 619
 Victor Lee The Laws of Gold Mountain: A sampling of early Canadian Laws and the
   Effect on Persons of Chinese Descent 1991 Man LJ
 Dawna Tomg A History of Exclusion 1998 vol 56 The Advocate 197

When the BNA 1867 was being enacted, there was a lot of concern re: division of powers.
As a result of what was going on in the U.S., the federal government was very concerned
about the provinces having too much power. The Privy Council then got worried that the
federal gov‘t was too powerful. So, they struck down prov‘l leg‘n and then every other
case after that they distinguished this case

RIGHT OF A FOREIGN NATIONAL TO WORK IN A PROVINCE/BE A
MEMBER IN PROFESSIONAL ASSOCIATION

Union Collary and Briden 1899 Appeal Cases 580
 The Coal Mines Act 1890
   ―no Chinamen shall be employeed in any mine below ground (this was the work that
   paid better)‖
 The Union Collary was owned by the Dunsmuir family and fought against this leg‘n
   b/c they wanted to employ Chinese workers
Held: Lord Watson (of the Privy Council): the prov‘l leg‘n was ultra vires and construed
91(25) (fed gov‘t :naturalization and aliens) to mean that the word ―aliens‖ included the
―consequences of alienage‖ and that this was within the federal power and therefore the
Coal Mines Act 1890 was not covered by 91(13) (prov: property and civil rights).


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   since this case, every court distinguished this consequence of alienage from voting,
    practicing law…..

Basically, professions (lawyers) were off limits to persons of Asian origin, and ―Indians‖

Re: Dickenson and Law Society of Alberta 1978 84 DLR (3d) 189 AltaS.C.
Ms. Dickenson was an American citizen and was seeking to practice law in Alberta
Held:
1) the court emphasized that she was not subject to a General Prohibition against
    earning a living in Alberta
2) the court distinguished the Briden case: ―there was no such blatant discrimination as
    was thought to be in the Briden case….the restriction was not to deal with the
    consequences of alienage‖
Law Society of Upper Canada and Sapinker 1984 1 SCR SCC
A lawyer of African descent who had all his credentials from Africa, but was not
permitted to practice law. Used s. 6(2)(a) & (b) of the Charter (s. 15 wasn‘t in force at
this point) to say that he, as a landed immigrant, should be entitled to work at any job he
chose
Held s. 6 did not give a landed immigrant the right to work in any occupation of their
choice

Law Society of B.C. v. Andrews 1995 SCC
 Andrews was a British lawyer and had the opportuntity to envoke s.15
 This was the first time that the SCC interpreted s. 15
Held: MacIntyre: meaning of discrimination included citizenship as non-citizenship was
historically a source of disadvantagement and thus it violated s. 15. Not saved by s. 1
(two judges, in their dissent, held that s.1 saved this as a reasonable limit b/c it was
important to know about Canadian history to be called to the bar).

RIGHT TO VOTE
Voting lists were used to determine what offices you could hold (in 1907, only 10% of
the British population could vote b/c you needed to be male + a land owner

Cunningham and Homma 1903 Appeal cases 151 (PC)
Chinese, Japanese and ―Indian‖ people could not vote in provincial elections
Held PC held that the leg‘n was intra vires b/c suffrage has nothing to do with alienage
or the consequences of alienage

May 30, 2000

Morgan v. AG. PEI (1976) 2 SCR 849

STUDENT FEES



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Re Redlin and UofA 1980 110 DLR (3d) 116
re: legislation dealing with differential fees for out of province students was challenged
AltaCA: leg‘n was intra vires and the ability to set differential fees for foreign students
had nothing to do with s. 91(25)
note: there is an argument that courts have tended to find legislation intra vires and this
would likely not be any different today as the Charter has been found not to apply to
universities (McKinney v. University of Guelph (1990) SCR: universities, while funded
by the government, are not under sufficiently under government control to constitute
government actors. If the legislation discriminated, then this would attract Charter
coverage).

NS Confederation of Univ. Faculty Assoc.’s v. NS 1995 NSJ #296 (NSSC)
NS Human Rights Commission and NSSC held that discrimination based on non-
residence was not discrimination based on colour/race, and therefore
not covered by the Human Rights legislation.


Immigration and Refugee Protection Act, Bill C-31(first reading, House of Commons,
April 6, 2000
economic immigrants


SOURCES OF IMMIGRATION AND REFUGEE LAW

Statutes:
 Immigration Act and Immigration Regulations 1978; and,
 Citizenship Act and Citizenship Regulations 1993
 Humanitarian Designated Classes Regulations (p. 838) Government can decide on
   what terms people can come in as a matter of administrative practice. This is very
   fast process, even though the regulations are very detailed.
 Immigration Exemption Regulations Hundreds of these regulations created as a result
   of s. 112. The number of these regulations has gone down as a result of s. 2.1 of the
   Immigration Regulations.

Common Law: thousands of fact specific cases with little value as precedents

Immigration Manual not law, but has huge influence; this is a very very useful source of
government ―policy‖ and to the extent that it expands admission or provides information,
use it. Years ago, they used to deny that such a manual existed, but now it is on line.
Essentially, if the manual expands routes to admission/getting visas, no one complains
(Family Business for ex). However, to the extent that the manual limits or is inconsistent
with the Act or Regulations…it is usually struck down.




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Practical Matters: we are not talking about Criminal or Employment law and as such
there is no concern for fairness, natural justice matters, or rights, as immigrants have no
rights. As well, since 80% of the matters heard by the federal court are immigration
matters, and the judges are tired of this, it is very hard to get leave to this court for
judicial review, unless ―the unfairness leaps up at you‖.
(note with respect to leave to appeal, the question is ―was there an error?‖; with respect to
leave for judicial review, the question is ―was there a grievous harm?‖)

With respect to Administrative Law the focus is on fairness, but with respect to
Immigration Law, fairness is not really a concern

Appeals:

(1) humanitarian/compassionate reasons
(2) are they admissible?
(3) are they inadmissable?
(4) is the person eligible for a grant of Canadian citizenship and if so, are they in risk of
    losing their Canadian citizenship?

Immigration Act Overview

s. 2.1 deals with refugees and foreign migrants and deals with people ―jumping the
queue‖. It says ―yes, we want to attain our responsibilities with respect to refugees, but
we have a problem with ―queue jumpers‖….

s.38.1 deals with security; a ministerial certificate allows the minister to reject someonw
as a security risk (severe criminality).

s. 3 has been ―wildly‖ interpreted by the courts and is ―background context‖
Kha and Minister of Employment and Immigration (1986) 5 FTR 150:
held s.3 was ―merely prepatory‖

s. 7 Annual Report of Minister/ Immigration Plan deals with expected levels of
immigration; not targets or limits. (note in Canada, the overall expected immigration
numbers have been about 220-250,000 whereas in reality, there have been about 190,000.
In the last few years, the number of humanitarian classes/refugees has been decreasing.
This group________ is controlled by the government with respect to settlement. The
other group, Convention Refugees, people who have made it to Canada can claim refugee
status; the government can not control this group. Family Class Sponsorship the focus is
not on the person overseas, the focus is on the right of a Canadian citizen or a permanent
resident to have family in Canada---note, beyond a spouse or unmarried child, it‘s pretty
hard…unless you are hear alone; the government can control the number of Family class
immigrants by slowing down the process (usually, parents and grandparents are the focus,
not spouses in this administrative slowing of the process)
 the government has to consult the provinces


                                              13
June 1, 2000
type from handwritten notes

June 6, 2000
need first 15 minutes of notes
KEY QUESTIONS:

(1) What is the status of the person you are dealing with?
(2) What are they seeking?
(3) Always know exactly what stage of the proceedings you are at:
   has there already been a denial?
   is this a refugee
(4) Which forum has jurisdiction and what is the jurisdiction of that forum?
   is this an appeal?
   or, are you under the Federal Review Act seeking a review?
   sometimes the jurisdiction of the tribunal is law, or fact or both?
   sometimes, the jurisdiction of the tribunal is equitable, namely:
     humanitarian and compassionate reasons; or,
     all the circumstances (broader than h & c, and includes h&c)
         Chieu v. Canada (Minister of Citizenship and Immigration), [1999] S.C.C.A No
         42
         Al Sagban v. Canada (Minister of Citizenship and Immigration), [1999] S.C.C.A.
         No 44
(5) Know the details of the procedural requirements (limitation periods, number of
    copies, etc.)


PRESUMPTION AND BURDEN OF PROOF

s. 8 (1) Where a peson seeks to come into Canada, the burden of proving that that person
has a right to come into Canada or that his admission would not be contrary to this Act or
the regulations rests on that person.

(2) Every person seeking to come into Canada shall be presumed to be an immigrantuntil
    that person satisfies the immigration officer examining him or the adjudicator
    presidding at his inquiry that he is not an immigrant
Gill 1991 Fed.CA p 91

s. 4 (1) where right to come into Canada
s. 4(2) where right to remain in Canada
s. 4(2.1) right of Convention refugees—Subject to any other Act of Parliament, a person
who is determined under this Act or the regulations to be a Convention refugee has, while
lawfully in Canada, a right to remain in Canada except wehre it is established that the



                                            14
person is a person described in paragraph 19(1)(c.1),(c.2), (d), (e), (f), (g), (j), (k), or (l) or
a person who has been convicted of an offence under any Act of Parliament for which a
term of imprisonment of
       (a)

s. 4(2) Rights of Indians---a person who is registered as an Indian pursuant to the Indian
Act has, whether or not that person is a Canadian citizen, the same rights and obligations
under this Act as a Canadian citizen
Watt v. Liebelt (1999) Fed.C.A. (sub nom. Watt. v. Canada (Immigration Act,
Adjudicator)
 Watt was an American citizen who is a member of a band whose traditional territory
    straddles the Canada/U.S. border. He was given the honour of attending burial sites
    in Canada.
 Then, Watt had a conviction in Canada for possession of marijuana.
held: constitutional argument, with respect to s. 35, was not dealt with by the adjudicator
b/c she felt that it was outsider her jurisdiction, The Federal Court of Appeal sent the
case back to the adjudicator. The key point is that Aboriginal Americans have aboriginal
rights to move about freely in Canada and such rights may trump the Immigration Act.
Schiefer 1988
 citizen of W. Germany and had come to Canada in 1981 as a visitor. He then went to
    the Rosieux Indian Reserve in Manitoba and was adopted as a member of the band.
    In 1988 he went to Germany for a short time and then returned to Canada. He arrived
    in Canada, traveling on a German passport (without a visa, as this was unecessary).
    He tells the customs officials that he is ―going home to his band‖.
 He was issued a Minister‘s Permit.

R. v. Pacificadore 1998 OJ 658
 Pacificadore had been detained (it seems as though he was charged with murder in the
    Phillipines…but it is not really clear) for 6 ½ years while waiting for an inquiry to
    start
 It seems as though he had tried to be released and the Federal Court of Review did
    nothing
 the Ontario court thought that this was within the Federal Court‘s jurisdiction and sent
    it back to them to be dealt with quickly

INTRODUCTION TO THE ADMISSION OF VISITORS, IMMIGRANTS,
CONVENTION REFUGEES AND MEMBERS OF DESIGNATED CLASSES

s. 2(1) “visa”
s. 5(1) Where privilege to come into or remain in Canada—No person, other than a
person described in section 4, has a right to come into or remain in Canada
s. 5(2) Where immigrant shall be granted landing if he is not a member of an
inadmissible class and otherwise meets the requirements of this Act and the regulations.




                                                15
s. 5(3) Where visitors may be granted entry or allowed to remain in Canada during
the period for which he was granted entry or for which he is otherwise authorized to
remain in Canada if he meets the requirements of this Act and the regulations.

s. 6 Selection of Immigrants (this section looks decisively important, but it doesn‘t
really amount to much—Casswell
s. 6(1) General principle of admissibility of immigrants – Subject to this Act and the
regulations, any immigrant, including a Convention refugee, and all dependants, if any,
may be granted landing if it is established to the satisfaction of an immigration officer
that the immigrant meets the selection standards established by the regulations for the
purpose of determining whether or not and the degree to which the immigrant will be able
to become successfully established in Canada, as determined in accordance with the
regulations.
note: this section makes it seem as though all immigrants are subject to selection, but this
is clearly wrong as sponsored immigrants are not selected; as well, neither are
refugees…..just look to the regulations!
s. 9(1) Applications for visa—Except in such cases as are prescribed (go to the
regulations to look for exceptions….there are NO exceptions with respect to immigrants;
there are with respect to visitors), and subject to subsection (1.1), every immigrant and
visitor shall make an application for and obtain a visa before that person appears at a port
of entry.
Schedule I to Regulations (p. 808) “The Point System”
 this is a ―tool‖ that can be used
 members of the ―family class‖ and ―sponsored immigrants‖ are not subject to the
    Point System as the focus is not on what the immigrant has to offer as a contribution
    to Canada, rather it is on the person who is wishing that they join them
 refugees are also not subject to this point system
 with respect to Convention Refugees Seeking Resettlement, the question is:
     are they a refugee?
     is there any chance for a durable solution?
     can they stay in Canada?
     then, the point system may apply as a guide
 an independent immigrant needs 70 points
 business immigrants
    (1) entrepeneur: someone who has business ability and are going to establish/buy into
        and create employment for others. need 25 points
    (2) investor: someone who has business expertise, and makes a $400,000.00
        investment need 25 points
    (3) self employed ―high flyers‖ who will contribute to Canadian culture –artists,
        atheletes. need 40 points

VERY IMPORTANT SECTION: s. 11(3) Regulations A visa officer may
     (a) issue an immigrant visa to an immigrant who is not awarded the number of
         units of assessment required by section 9 or 10 or who does not meet the
         requirments of subsection (1) or (2), or


                                            16
       (b) refuse to issue an immigrant visa to an immigrant who is awarded the number
           of units of assessment required by section 9 or 10.

s. 13(1) Regulations—A visitor who is a person referred to in Schedule II is not required
to make an application for and obtain a visa before he appears at a port of entry
Schedule II p. 832
paragraph 1: non-refugee producing countries: Andorra, Antigua and Barbuda, Australia,
Austria, Bahamas, Barbados, Belgium, Botswana, Brunei, Costa Rica, Cyprus, Denmark,
Dominica, Finland, France, Federal Republic of Germany, Greece, Grenada, Hungary,
Iceland, Ireland, Italy, Japan, Kiribati, Liechtenstein, Luxembourg, Malaysia, Malta,
Mexico, Monaco, Namibia, Nauru, Netherlands, New Zealand, Norway, Papua New
Guinea, Portugal, Republic of Korea, St. Kitts and Nevis, St. Lucia, St. Vincent, San
Marino, Saudi Arabia, Singapore, Slovenia, Solomon Islands, Spain, Swaziland, Sweden,
Switzerland, Tuvalu, Vanuatu, Western Samoa and Zimbabwe
paragraph 2:

s. 10 Applications by students and workers--

adjudicators s. 19 (inadmissibility of persons seeking to come into Canada); s. 27
(inadmissibility/removal of persons already in Canada)
immigration officers

                       IMMIGRATION LAW- CLASS NOTES

May 10
(I) Development of Immigration Policy
(1) Canadian Immigration law substantively can be argued to start in 1974 with the Green
    Paper entitled The Immigration Program, by Canada Manpower and Immigration.
    (JV7225C352) which was the working document that was the basis for a White Paper
    in 1975 and the Immigration Act of 1976 which did not come into force until 1978.
(2) The Green Paper is the basis of the current Immigration Act but still had inaccuracies
    such as suggesting that European Jews that were economic refugees in WWII were
    accepted.
(3) Current Reform: December 1997 ―Not Just Numbers‖ by the Legislative Review
    Advisory Group made recommendations regarding Immigration laws -Green Paer.
    The White Paper which followed entitled ―New Directions‖ in January 1999 stepped
    back from the LRAG paper by not recommending 2 Immigration Acts (more
    comprehensive Citizenship Act)

(II) History of Immigration Act

(1) Immigration Act 1869-- no comprehensive immigration system, no systemized
    methof for control or selecting immigrants. Unless you drew adverse attention to
    yourself you could just enter the country. The purpose of the Act then was to ―occupy




                                           17
    the field‖ so that Provinces did not obtain constitutional authority over it. Fed-Prov
    conflict remained until 1910s.
(2) Immigration Act enacted1906; revised in 1910; focused on control of borders by
    limiting people of certain origins. Also focused on selection of immigrants--based on
    economic and demographic concerns. Until the Charter immigrants could be told
    where to work (much more constructive sytem).
         a. Canada still part of British Empire-- and immigration was part of Imperial
            obligation and run by Britain. The UK wanted the Canadian prairies to feed
            the empire and thus it needed to be settled. Immigrants were accepted from
            UK, US, France and Northern Europe. When this was not enough Eastern
            Europeans-Poles, Ukranians, Germans…
         b. 1910-1914: Canada admitted from 300-500,000 immigrants which has never
            been surpassed (with a pop‘n of 5million). The immigrants chosen had to
            know how to farm and do so.
         c. Since this time there has been a focus towards selecting immigrants.
(3) Immigration Act 1952-- in the post-war era, this Act was purged of prima facie
    references to ―race‖ in terms of selection. It was done so to fit with the changing
    attitude of the times. No overt distinction on basis of place of origin, ethnicity.
         a. However, there still was the power to make racially based regulations which
            were applied until 1960 (up to enactment of Bill of Rights) and were not
            repealed until Immigration Act 1976 came into force in 1978 with new
            regulations.

(4) Immigration Act 1976 (cif 1978): major revisions:
       a. Jan 1 1989-- set up Refugee determination process (in reaction to Singh- 1985)
       b. Jan 1 1993-- matters of criminality, security and exclusion are added leading
          to a tightening of Act. (Reaction against Charter section 7 (life, liberty and
          security of person) use of term ―everyone‖ as allowing visitors great power
          upon arrival.

(5) Other Federal Legislation
       a. Chinese Immigration Act 1900 and 1923. Made it difficult for Chinese to
           immigrate up until 1947 when it was repealed.
       b. Immigration Appeal Board Act ---established Immigration Appeal Board
           which was repealed Jan 1 1989, and replaced by the Immigration and Refugee
           Board which is governed under the Immigration Act.

(6) Provincial Legislation
       a. B.C. 1900-1914, B.C. passed 7-8 Immigration Acts to keep Chinese and South
           Asians out of B.C. These statutes were disallowed by Governor General or
           held to be ultra vires through court decisions. BC felt feds were not doing
           enough.
       b. Quebec Immigration Act-- has a complete Act that Canada has agreed to
           through an accord with the Province.




                                            18
(III) Treatment of Certain Groups
(1) Prior to WWII race distinctions were common place and reflected public opinion at
     the time. Post-war and emphasis turned to ideology, race was no longer acceptable but
     concerns over communist sympathesizers was legitimate.
(2) Tools to select according to race:
         a. ―Preferred Nation‖ designations:1. UK, France, US, 2. Northern Europe 3.
             Central and Eastern Europe 4. Southern Europe. Never beyond Europe.
         b. Quota system: each country had a quota until the late 1960s.
(3) Treatment of Chinese: came to build the railroads, were recruited by Canadian
     Pacific. After it was built they were supposed to leave, most did not and settled in
     Victoria and Vancouver circa 1880s. Their population equalled the whites. There was
     division within the white community: 1. Merchants wanted them gone because they
     were rivals 2. Industrialists wanted them as a cheap (1/3 wage of whites) source of
     labour, Europeans were starting to unionize. Eg. Dunsmuir owned mines.
          BC put pressure on Feds to deal with ―problem‖. Result was the 1885 Royal
             Commission on Chinese Immigration (JV7285C5A51885); Commisioners
             came and viewed Victoria Chinatown and were shocked to learn there was
             commingling between whites and Chinese.
          The Chinese Immigration Act came soon thereafter and applied to ―persons of
             Chinese origin or descent‖. It controlled there entry : 1. Every port had a
             Chinese controller 2. ―head tax‖ by 1910-1914 set at $500 for Chinese , $200
             South Asians, and $20 for Europeans. This shut down Chinese immigration.

May 12, 199

Treatment of South Asians
1. 1897- was the first recorded presence of South Asians in Canada. Sikhs were a major
   part of India‘s military. They had a fair degree of independence in Punjab. They were
   also central to colonial administration and major component of armed forces despite
   only making up 2-3% of population in India. Their allegiance to the Crown was
   essential for control over India.
2. 1897- the Sikhs were in London celebrating the Queen‘s diamond jubilee and on their
   way home travelled across Canada. They liked B.C.
3. 1903-1904-- around 1,000-1,500 Sikhs were coming to Canada each year as British
   subjects with rights to settle anywhere in the Empire. As Sikhs bought land and
   started businesses, racial tensions grew in BC, riots occurred and a ―hindu‖ problem
   arose. This was not uniform sentiment. White industrialists supported Sikh migration
   because they like the Chinese, were cheap labour-- 1/3 of whites.
4. UK-- was in delicate situation, their primary concern was not to offend the Sikhs so
   India would not be destabilized.
5. BC starts to put pressure on Ottawa but Ottawa did not have full control over
   immigration at this period. UK demanded that there be NO Sikh Immigration Act.
6. William Lyon McKenzie King Report by WL McKenzie King on Immigration to
   Canada from the Orient and from India in Particular . 1908. This report was the




                                           19
    compromise solution to the Sikh ―problem.‖ 2 main thrusts 1. Not to insult Sikhs 2.
    Take a paternalistic approach so they won‘t want to immigrate here.
        a. The report was titled so not to be aimed at Sikhs in particular.
        b. Paternalism: language: reflected that the interests of Indians would not be
            served by living in Canada, they are not suited, not climatically inclined.
        c. Continuos Voyage Regulation: put in by order in council; anyone landing in
            Canada has to have to come by continuous voyage from their country with a
            ticket purchased from that country. Canadian Pacific was then told to stop
            continuous voyages from India, etc. (Basically could not switch boats).
7. Re Behari Lal 1908, CP brings this regulation to court and it is struck down.
8. By 1908, the regulation + head tax lowered Indian immirgration to 5-10/year.
9. Government puts law back into place
10. Re Narnain Singh 1913: Chief Justice Hunter strikes down law again.
11. At this time a group of 250 Sikhs and Hindus had chartered a boat from India and
    were sailing to Canada. Ship was called Komagata Mara. While stopping in Hong
    Kong they heard CJ Hunter had struck down the regulation. When they arrived in
    May 1914, the Canadian government sent navy boats and fired at them. They
    remained there for 2 months. This attracted international attention. Sikhs were angry;
    they had bought into British rule of law and were now being treated unjustly. A few
    were allowed to land. 1 brought application for habeaus corpus because of detention :
    Re Munshi Singh BCCA: held habeus corpus not allowed. Prior to boat‘s arrival and
    order in council had been enacted to prevent landing of ―Asian artisans.‖ Continuous
    voyage requirement was upheld, no right to land.
12. On July 6, 1914 they sailed back to India and upon arrival around 25-28 were killed
    by UK troops and the rest were imprisoned. This incident eroded UK-Sikh relations
    and many Sikhs went to the independence movement.

Treatment of Eastern European Immigrants During Depression
Shia Imai ―Deportation in the Depression:
Barbara Roberts ―Whence they Came: Deportation From Canada 1900-35‖
1. 1930s-- anti immigration sentiment was high, authorities were tough on immigrants
   and deference to draconian legislation was extreme.
2. Depression: If you became a charge on the state you were removable. This meant if
   you went to prison, to the hospital. This applied to non-citizens who were non-anglo,
   racially different, different religion.
3. 20-25,000 were cleared from the prairies. Did not work as well on trade unionists.

European Jews 1930-1940s
Abella Troper ―None is too Many.‖
1. In Nazi Germany, the Nazis seized power in 1933, but anti-semetism was evident
   prior to that. Jews were anyone with ¼ Jewish blood. These laws were apparent to the
   allies at the time. One policy in FRG was the ―extrusion‖ of Jews or the
   enouragement to leave.
2. 1930s-- Church groups in English Canada wanted to sponsor Jews. Catholic Church
   in PQ was intensely against it and the depression did not help.


                                            20
3. McKenzie King wanted to sponsor Jews but the French members of Cabinet said no
   and for the sake of national unity the issue was not pressed.
4. Jews who approached Canadian consular offices were told that someone from their
   occupation was not needed. Or when war started, were not accepted as enemy-aliens.
   Another category was ―non-unified family‖-- unless the whole family was present (to
   see if any were medically inadmissible), they would not be processed -- of course
   most families had been split up by Nazis. Made effort not to reject on basis of being a
   Jew, try not to offend Jewish communities in Montreal and Winnipeg.

Historical Perspectives of Immigration Law
1. After WWII, human rights took centre stage (underlying tension with principle of
   state sovereignty). The holocaust makes racism unfashionable. People are still racist
   but overt policies of racism are not tolerated.
2. May 1, 1947, McKenzie King statement on immigration to House of Commons, that
   immirgration must relate to ―absorptive capacity.‖ Must examine what are chances
   that immigrant will successfully establish himself? The Chinese Immigration Act: is
   characterized as appearing to discriminate, it will be eliminated but new immigration
   will not change the ―fundamental composition or character‖ of Canada. And mass
   oriental immigration would lead to social and economic upheavel.
         the language of ―absorptive capacity‖ and ―fundamental character‖ still
            informs Immigration policy today. The main concern today being the balance
            of French in Canada.

3. Cold War: 1950s was one of the most repressive decades in Canadian history. It
   followed the 1940s where women had entered the workforce and were then removed
   from it. Minorities were treated fairly equally; differences were ignored, people left
   their communities.
4. At height of cold war, differences were not tolerated as people who were gay,
   alcoholics, adulterers were subject to black-mail or perceived likely to be, by Soviet
   spies. Moral strength was emphasized.
5. In the US and Canada, authorities tried to find the ―weak links‖ before the
   communists could. RCMP investigated people on suspicion of homosexuality.
   Scientific tests were conducted on gays who may have any type of important
   knowledge.
6. This led to tightening of immigration on homosexuals. U.S. made it an inadmissible
   class but Canada did not.
7. 1951: NY Times: ―scourge of homosexualism‖  Canada soon after added a section
   to Act that homosexuals and people living on avails of homosexualism were
   inadmissible.
8. Philip Girard : From Subversion to Liberation-- Homosexuals in Immigration 1952-
   1977. There was no case law contesting these provisions because no one admitted
   they were gay to immigration authorities.
9. 1960s: gay liberation: they would enter Canada being openly gay, government
   decided to ignore law unless absolutely necessary to exlcude. Anti-gay provisions




                                            21
   remained on books until 1977. In 1976 homosexuals were no longer inadmissible as a
   category.

Rejection of Communists
R. Whitaker : ―Double Standard: the Secret History of Canadian Immigration‖
1. People who fled from dictatorships that were allied with the U.S. were not let in but if
   you were a dissident from the Soviet Bloc you were (even if no democrat).
2. Politics ran immigration.
3. Treatment of former Nazis: up to 1955 ethnic Germans were not admissible to
   Canada but many Nazis were admitted and given new documentation because they
   were valuable scientists. Built rockets, made chemicals.
4. Ideology replaced racism to a degree.
5. American Baptist Church: challenge to US government immigration on basis that
   refugees from US allies don‘t get in. Gov‘t conceded that political ideology had been
   used inappropriately.


Constitutional Analysis:
1. Division of Powers- which legislature has the power to enact legislation. Is it ultra
   vires?
2. Is the provision a violation of the Charter? Section 1.

1. Constitution Act, 1867:
      a. Section 91(25) -Parliament has authority over naturlization of aliens.
      b. Section 92(13)- Provinces have authority over property and civil rights.
      c. Section 92(14) Provinces have authority over administration of justice in the
          province.
      d. Section 93- legislature in each province may make exclusive laws relating to
          education.
      e. Section 95- immigration - linked to agriculture, provides for concurrent
          legislative powers. Provinces may make laws relating to immigration as long
          as they are not repugnant to any Act of Parliament.
2. Charter of Rights
      a. section 6: mobility rights refers to 6(1) ―every citizen‖ has right to enter,
          remain in and leave Canada.
      b. 6(2) ―every citizen and permanent resident‖ has the right to move and take up
          residence in province and to pursue gaining of livelihood in province.
          Government cannot make permenant residents live anywhere.
      c. 6(2)(b) right to pursue the gaining of a livelihood, not necessarily the
          livelihood of your choice.
      d. section 7 ―everyone‖ has the right to life, liberty and security of person.. this
          includes immigrants.
      e. section 12: ―everyone‖ has right not to be subject to cruel and unusual
          punishment. Removal from country is a civil remedy and not considered
          punishment.


                                            22
       f. section 15: equality provision has several enumerated grounds of
          discrimination -- grounds that are analagous. Andrews: non-citizens are
          analogous.

Immigration Act --Overview of Federal -Provincial Interaction
The Act reflects constitutional awareness but also the practical-reality of how feds and
provinces work together.

I. Section 3 : Immigration Policy Objectives: rules and regulations are to be designed
    and administered in a manner that promote the interests of Canada recognizing the
    need:
        (a) support demographic goals of Canada, relating to size, rate of growth,
            structure and geographic distribution. Mobility Rights interferes with this goal.
        (b) to enrich and strengthen cultural and social fabric taking into account federal
            and bilingual character of Canada.
(h) to foster the development of a strong and viable economy and prosperity of all
regions…

II. Section 7: Immigration Plan: each year Minister must table a plan -- laying out
     number plus categories of immigrants. Government can speed up or delay visa
     applications to control numbers -- subject to political pressure. Minister must
     ―consult‖ with the Provinces.
III. Section 108 (1): Minister ―shall‖ consult with the provinces regarding services to
     immigrants.
IV. Section 108(2): Fed-Prov Agreements: Minister with approval of Cabinet may make
     immigration agreements. Many provinces have them but only significant one is with
     PQ.

Canada- Quebec Immigration Accord
1. Est. Feb 5, 1991. Successor of 1971 Cullen- Couture Agreement.
2. Canada recongnizes PQ‘s concern about demographic importance in Canada
   (maintaining its balance vis a vis English Canada) and as a result Canada as a matter
   of politics has given PQ authority over selection of immigrants to PQ.
3. PQ can select immigrants but cannot keep them there because they are Canadian
   permenant residents. So Canada screens them first under section 19 (terrorists, war
   criminals), then it falls to PQ immigration officers.
4. Section 12 of Accord: PQ has sole responsibility for immigrants destined to that
   province, Canada has sole responsibility for admissibility, Canada shall admit PQ‘s
   choices unless inadmissible under certain categories. Canada shall not admit
   immigrants into PQ that do not fit their criteria.
5. Feds maintain control over family re-unification ss13-16.
6. ss 17-20: deal with refugees, PQ under a duty to do its share, PQ can veto. Canada
   cannot bring refugees into PQ without its agreement.




                                             23
7. ss 6-7: Canada agrees PQ will always get its fair share of immigrants, pro-rated for
   PQ population in Canada. Usually exceeded by 5%. In reality, PQ loses most of
   immigrants to Ontario.etc.
8. Reception and Integration (Expenses): ss24-29: PQ has total control over linguistic
   and cultural intergration and Canada agrees to withdraw. Only province that has this
   accord.
9. s26- Canada shall provide reasonable compensation for services.
        Ont gets 20% of funding, BC around 15% but both receive more than their
           share.

QUEBEC‘S IMMIGRATION ACT
Is an alternative to Canada‘s Act not so much an addition to it.
1. It is ultra vires the PQ legislature, immigration is federal. But not likely to be
    challenged:
         a. PQ not going to challenge it.
         b. Feds aren‘t going to challenge it.
         c. Immigrants are given 2 routes of entry, it is in their interest (no adverse
             effect).
         d. Public: would have to get standing.
          Even if you did get standing PQ and Feds would intervene against you.
          VM Lemieux ―Immigration a Provincial Concern‖ constitutional analysis has
             moved so that there is room for both feds and provs, and PQ Act would be
             intra vires.

MEECH LAKE ACCORD
June 1987 accord failed to be agreed to by June 3 1990, would have added sections 95
(A) to (E) to Constitution Act, 1867.
95(A): federal government shall negotiate an agreement with respect to immigration.
95(B): if agreement entered into--could only be amended by feds and provinces and
would give provinces a serious claim to immigration (would be constitutionalized).

Main Cases Interpreting Provisions
Wryskinski
1. Early cases held that federal government had occupied the field.
2. Reception into Canada was in the purview of the provinces 92(13).
 At time of Confederation, Canada was concerned about consequence of US civil war -
   -where there were powerful states and a weak federal government. All major powers
   given to Parliament. The Privy Council felt the feds went too far and allowed most
   provinicial legislation under a liberal interpretation of 92(13).

Leading Cases for Federal Jurisdiction:
1. Common Law
2. Parliament
3. Occupying the Field
4. Cases


                                           24
1. Azim 1973 English CA, Lord Denning: at common law no alien has right to enter
   except by leave of the Crown. Crown can refuse without reasons and if it admits can
   stay on conditions and can be deported.
2. Prata SCC 1976: referred with approval to Denning‘s decision aliens do not have
   rights unless Crown says they do.
3. Singh v. Minister of Employment and Immigration 1985 SCC: 3:3 split but unanimous
   on point that everyone in Canada has some protection and right to have refugee claim
   heard.
4. Chiarelli, SCC 1992: more conservative court, removal of permanent resident. Does
   not refer to Singh goes back to Prata referring to anitquated term ―alien.‖ Sees
   immigration as unlike criminal law, the end result is not bad just sending you home.

May 26, 1999
Immigration Proceedings and Criminal Proceedings
The SCC has held that immigration proceedings have nothing to do with criminal law.
R v. Pacificador (1998 Ont Ct Gen Div) : involved application in Ontario court for writ of
habeus corpus. Applicant was in pre-inquiry detention for 6 ½ years. Court held that it
was outside its jurisdiction and it was necessary to apply to Federal Court but could re-
apply if no speedy resolution.
 A criminal matter would never allow a person to languish in jail for that long.
    Immigration rights do not coincide with Charter rights under criminal law?

Constitutional Jurisdiction
1. Scope of Federal immigration power: Azim: at common law an ―alien‖ has no rights
   to stay in Canada. Aliens can be removed arbitrarily.
2. AG Canada v. Cain (1906 AC): English Crown assented to Parliament the unlimited
   prerogative power to do as they please.
3. Federal immigration power has fully occupied the immigration field but the
   Constitution Act, 1867 contemplated concurrent jurisdiction between the feds and
   provs.
        Re Nakne 1908: B.C. legislature enacted Immigration Act 1908 designed to
            keeps Asians out of BC; it accomplished this by making every person coming
            into BC take a literacy test in one of several European languages. Being
            literate in an Asian language did not help. Nakne was a citizen of Japan and
            was held inadmissible. Legislation held inoperative as it was inconsistent with
            federal law (ultra vires).
        Rex v. Narain Singh 1908: Dominion immigration Act occupies the field; no
            room for provincial government to legislate. Since this no other provincial act
            has been held ultra vires. (PQ really only has an impugnable Act)

4. At this time they were only judging the provincial legislation on whether it was vires;
   the fact that they were racist was irrelevant (pre-Charter).

Provincial Power of Immigration


                                            25
A. Prior to Charter- immigrants could not move freely; generally made to work in one
   area for 5-7 years.
B. Provinces could discourage immigrants from moving to them by excluding them from
   civic life ex. cannot vote, cannot become MD,LLB…, no entitlements, even if your
   family had been present for several generations. The authority to enact these laws is
   found under 92(13) property and civil rights. But this conflicted with federal power
   91(25) naturalization of aliens which cannot be effected by Provincial legislation.
C. Provincial Efforts to alienate Minorities and Immigrants
        Bruce Ryder Racism and the Constitution: the Constituional Fate of BC Anti-
            Asian Immigration Legislation Osg H LJ. 1991
        Victor Lee Laws of Gold Mountain… Manitoba LJ 1992
        Donna Tang A History of Exclusion… 1998 Advocate

       (1) Right to work in a Province
       Union Corollary v. Bryden (1899 AC): section 4 of the Coal Mines Regulation
       Act stated no ―chinaman‖ could be employed below ground. Dunsmuir liked
       cheap labour and challenged this BC Act as unconstituional. Stated that province
       was regulating alienage or rights of naturalized persons.
       Held: Privy Council: the section was ultra vires the provincial legislature. Lord
       Watson: 91(25) gave dominion legislature authority over rights, privileges, and
       disabilities of aliens, matter for feds.

        After this decision the entire judicial exercise was to distinguish Bryden and
         uphold racist legislation…

       (2) Right work in Specific Professions:
       Law Society of Upper Canada v. Skapinker (SCC 1984): Charter in force but
       section 15 not yet in force until April 15, 1985. Applicant citizen of South Africa,
       permenant resident of Canada. Law Society held you had to be a Canadian citizen
       to practice. Skapinker claimed section 6 (mobility rights) guaranteed him a
       livelihood.
       Held: no. 6(1) applies to citizens; 6(2) applies to permanent residents. The Charter
       countenances a different application to citizens and permenant residents. Section
       6(2)(b) says permanent residents can gain a livelihood in any province but no
       constituional right to work in job of your choice.

       Law Society of B.C. v. Andrews (1989 SCC): BC law society stated needed to be a
       Canadian citizen to practice law in BC. Andrews was British. Challenged on basis
       of section 15.
       Issues: was it a violation of section 15? Was it justified under s1?
       Held: yes it was a violation of s15 and no it was not justified under s1?
       Non-citizens are a historically disadvanteged group and an analagous form of
       discrimination. Cannot use citizenship to discriminate.

       (3) Right to Vote:


                                            26
Provinces excluded people of colour from voting.
 Cunningham v. Hamma (1903 PC): BC Provincial Elections Act: Chinamen,
   Japanese, Indians could not vote. Privy Council held it was intra vires,
   distinguished Bryden : sufferage has nothing to do with alienage and
   naturalization. But did this act not interfere with the ―rights‖ of Chinese as
   Lord Watson said provinces could not do?

(4) Ownership of Land
Morgan v. AG PEI (1976 SCC): Real Property Act-- no person not resident of
province may acquire property of specified size. Aimed at preventing Americans
from buying up property.
Held: non-residents of PEI were treated the same as Canadians not resident. Not
ultra vires within s92(13) to deal with ―absetee proprietorship.‖

(5) Student Fees: universities charge more for non-citizens. Re Redlin and
    University of Alberta (1980): legislature has authority under 92(13) and
    education to do so.
 Post-Charter: McKinney v. University of Guelph (1990 SCC): universities act
    independently of provinces, Charter does not apply.
 Nova Scotia Confederation of University Faculty Associations (1995): Charter
    not argued; argued Human Rights Commission should read in ―non-citizen‖ as
    a ground of discrimination. HRC held it did not fit into grounds of
    discrimination. * Some room for different treatment of non-citizens.




                                    27
I. OVERVIEW OF CURRENT IMMIGRATION AND REFUGEE LAW
A. Introduction: Immigration law is elusive because the Act and regulations only serve as
    a guide to the government who can waive the provisions. Case law is also not much
    help because it is so very fact driven that the majority of cases may not be applicable.
    Finally practitioners will tell you that there are major discrepancies between law and
    practice.
B. Sources of Immigration and Refugee Matters:
        1. Immigration Act: the bulk of the detail of Immigration is in the regulations.
            Section 114(1) grants the Governor in Council authority to make regulations
            on a wide variety of matters. Therefore Immigration law is very flexible: b/c
            Cabinet can change the regs without Parliament authority or scrutiny. The
            check on Cabinet is public scrutiny, press and ultimately democracy. This
            flexibility allows gov‘t to impose requirements to meet needs; ex. when Czech
            gypsies were coming to Canada as refugees, a visa requirement was put on
            them.
        2. Immigration Regulations, 1978
        3. Citizenship Act
        4. Citizenship Regulations
C. Principle Source of Policy
        i. Specifically stated government policy w.r.t. immigration is set out in
            Immigration Manuals issued by Citizenship and Immigration Canada. This is
            an ―in-house‖ product given to visa/immigration officers; it acts as an
            operational memoranda stating what factors an officer may consider in certain
            cases.
         Ex. Family Business Immigration is not a class provided for in Act or
            regulations but is present in manual for immigrants who are coming to work in
            a family run business. Ex. Manual authorized sponsorship of same sex
            partners, which was not present in law.
         Dee v. Canada vol. 14 Imm LR 2nd 5: Held: manual does not contain law. The
            advice may elaborate on the law; you cannot rely on the manual substantively.
         Not likely to be challenged b/c manual usually expands the means of entry. If
            government withdraws rules, the ability to obtain judicial review is small b/c
            the duty of fairness is very narrow.
D. Questions to ask in an Immigration and Refugee Fact Situation:
        1. Are there compassionate and humanitarian considerations that would justify
            (waiving rules??)
        2. Is there any reason to justify discretion apart from H + C but to keep process
            alive? (ex. gov‘t discretion generally such as use of Minister‘s permits).
        3. Is the person admissible to Canada? Do they fit within a route as immigrant?
            Visitor? Or Refugee?
        4. Is the person inadmissible? Section 19 classes. Section 27: removal of people
            who are already here on grounds of inadmissibility.
        5. Is the person entitled to a grant of Canadian citizenship? Once you are a
            citizen, section 6 have absolute right to come and go to Canada but removable




                                            28
          only if they acquire citizenship by fraud/misrepresentation and are demoted to
          permanent resident.
E. Structuring the Issues in a Fact Pattern:
       1. Separate out substantive from procedural issues.
              i. Substantive Issues:
                      a. What is person‘s immigration status?
                                what is person‘s immigration status under Canadian
                                  law: citizen, PR, refugee? Are they claiming refugee
                                  status? Are they an alien?
                                does the person have status w.r.t. other countries?
                                       is that country geographically close eg. U.S.,
                                          Greenland, St. Pierre and Miquelon.
                                       does Canada have a trade agreement with that
                                          country? NAFTA, Chile-Canada FTA->
                                          bestows some rights; GATS ->bestows some
                                          rights.
                                       Is that person from a country mentioned in Act;
                                          ex visitors from the Holy See do not need visa.
                      b. What is the person seeking? Are they here to visit? Coming to
                          work? Study? Seeking not to be removed? Seeking citizenship?
              ii. Procedural/Jurisdictional Issues:
                      a. Determine precisely the stage of proceedings where you are at.
                      b. Determine the appropriate forum and know it jurisdiction.
                          What grounds are needed to come before this forum and what
                          relief can you get?
                      c. Need to understand judicial review under Federal Court Act.
                      d. Need to understand appeals to Appeal Division of Immigration
                          and Refugee Board.
                      e. Need to understand appeal rights under Act:
                                s.70: appeal by Permanent Resident against removal on
                                  basis of law, fact or mixed. Can also take into
                                  consideration ―all the circumstances in the case..‖
                                s. 77: appeals by sponsors against refusal of visas to
                                  family class. Canadian citizen can appeal on
                                  law/fact/mixed and H + C.
                      f. Need to know procedure of tribunal.


II. OBJECTIVES OF IMMIGRATION POLICY
(1) Section 3: Immigration Objectives: …immigration policy and the rules and
    regulations made under this Act shall be designed and administered in such a manner
    as to promote the domestic and interntational interests of Canada recognizing the
    need
                (a) to support attaintment of demographic goals…size, rate of growth,and
                    geographic distrbution


                                           29
                  (b) to enrich and strenthen cultural and social fabric..taking into account
                      bilingual character of Canada.
                  (c) to facilitate reunion of citizens and PR with close relatives…
                  (d) to facilitate …adaptation of PR into Cdn society via cooperation with
                      other levels of government.
                  (e) to facilitate entry of visitors for trade, toursim, business…
                  (f) to ensure that any person who seeks admission to Canada on
                      permanent or temporary basis is subject to standards of admission
                      that do not discriminate in a manner inconsistent with Charter.
                  (g) to fulfill Canada’s international legal obligations w.r.t. refugees and
                      to uphold its humanitarian tradition…
                  (h) to foster..a strong and viable economy and the prosperity of all
                      regions in Canada.
                  (i) to maintain and protext the health, safety..of Canada
                  (j) to promote international order and justice…by denying Cdn territory
                      to those likely to engage in criminal activity.
     2 extreme views on utility of section 3 objectives:
           Singh; Wilson: treated section 3 objectives as important for her decision.
           Kha v. Canada 1986 v.5 FTR 150: Muldoon: provision of section 3 merely
              precatory- in the nature of a prayer, wishful thinking to be applied in
              practice.
(2)   Section 2.1 - Purposes of Amendments: in An Act to amend the Immigration Act and
      the Criminal Code in consequence thereof ; c.i.f Jan 1 , 1989. Response to decision in
      Singh.
           purposes of amendments are
                   2.1 (a) to preserve for persons of genuine need the refugee procedures.
                   (b) to control abuse of procedures for refugee claims (in light of recent
                      abuses)
                   (c )to deter those who assist in the illegal entry of persons into Canada.
                   (d) to respond to security concerns including fulfillment of Canada‘s
                      international obligations.
(3)   Section 114(1)(s): Cabinet can prescribe countries that comply with Article 33 of
      Convention ―non-refoulement‖ for purpose of sharing responsibility for the
      examination of persons who claim to be Convention refugees. Signatories that
      provide asylum to refugees on well grounded fear of persecution. List indicates
      countries that take it seriously. If a refugees comes from a country on that list they
      will be considered to be ―shopping.‖
           Argument in Canada whether the U.S. should be on this list. 3 years ago we
              attempted to draft an agreement w/ US on screening of refugee claimants
              whereby if they entered US first they could be sent back (clearly anyone
              through Central America would be caught by this), never finalized.
(4)   Section 38.1 c.i.f. Jan 1, 1992 chunk of amendments designed to tighten security
           Section 38.1- Purpose of provisions: recognizing that persons who are not
              Canadian citizens or permanent residents have no right to come into or
              remain in Canada and that PRs have only a qualified right to do so, and


                                               30
           recognizing the necessity of cooperation with foreign governments and
           agencies in maintaining national security, the purposes of section 39 to 40.2
           are
               (a) to enable gov‘t to remove persons who constitute a threat to security or
                   interests of Canada or who presence endangers the lives or safety of
                   persons in Canada
               (b) to ensure the protection of sensitive security and criminal intelligence
                   info and
               (c) to provide a process for the expeditious removal of persons found to be
                   members of an inadmissible class in ss 39 or 40.1
(5) Section 7(1) Immigration Plan- the Minister shall lay the following year‘s
    immigration plan to be laid before Parliament after consultation with the provinces
    and such persons, organization and instiutions as the Minister deems appropriate.
        the plan is an estimate because gov‘t cannot specifically control the number.
           Ex. refugees who arrive in Canada can make a claim and government cannot
           control some of that number. Family sponsorship depends on Canadian
           citizens. Gov‘t can use regulations (may permit-s7) to slow down number of
           visas given.
        total per year: 220-250,000
        60,000 family class
        25-30,000 refugees
        110,000 skilled worker, business immigrant.

(6) Section 108- Consultations and Agreements with Provinces
        108(1): federal gov‘t shall consult with the provinces respecting measures to
           be undertaken to facilitate the adaptation of permanent residents to society and
           patterns of immigrant settlement in relation to demographic requirements.
           This is necessary b/c provinces have to deal with health care, education…
        108(2): fed-prov agreements--the Minister, with approval of Cabinet, may
           enter into an agreement with any province for purpose of facilitating the
           formulation, coordination and implementation of immigration policies and
           programs.

(7) Section 108.1 International Agreements: Minister, with Cabinet‘s approval, may make
international agreements to help facilitate immigration policies and programs including
agreements for sharing responsibility of screening refugee claimants…


III. MINISTER’S PERMITS, ORDERS-IN-COUNCIL, AND MINISTERIAL
    EXEMPTIONS
1. Intro: Parliament has unlimited prerogative power regarding aliens. The rules set up
    by Parliament grant much discretion (mostly positive discretion). The Act creates 3
    routes to avoid rules:
                   i. Minister‘s permits
                   ii. Orders in council


                                            31
                    iii. ministerial exemptions
i. Ministerial Permits:
        a. s.2(1) ―permit‖ means a subsisting permit issued under subsection 37(1).
        b. s 37(1) Issue of Permits: Minister may issue a written permit authorizing any
            person to come into or remain in Canada if that person is (a) in an
            inadmissible class (b) person in Canada who had report been made under
            27(2). The only check on the Minister is public opinion.
                 this provision can be used for persons without papers ex. Kosovars
        c. Any immigration officer by contacting a senior immigration officer can grant a
            Minister‘s permit-- these permits can put conditions on entry.
        d. s 37(3) a permit shall be in force up to 3 years.
        e. s 37(4) the minister may at any time extend or cancel a permit.
        f. s 37(5) unless conditions allow it, a permit is cancelled if the persons leave
            Canada.
        g. s 37(2)- When Permit May not Be Issued- notwithstanding section1 , no
            permit may be issued to (a) a person against whom a removal order has been
            made and who has not been removed unless an appeal from that order is
            allowed. This provision is circumvented by driving across US border.
        h. s 38(1)- Landing Authorized by Governor in Council- the GinC may authorize
            the landing of any person who at time of landing has resided continously in
            Cnada for at least 5 years under authority of a written permit issued by
            Minister.
        i. s 38(2)-Consent of Province Required- …if Province has s108 agreement for
            selection of classes of immigrants who intend to reside in province…an
            immigrant of those classes who intends to reside in that province may only be
            granted landing under sub 1 if province has given consent.

ii. Orders in Council
       a. orders in council deal with longer term ways to resolve problems.
       b. section 114(2): Governor in Council, may, by regulation authorize the
           Minister to exempt any person from any regulation made under 114(1) or
           otherwise facilitate the admission of any person…where Minister is satisfied
           that person should be exepmpted/admission facilitated owing to the existence
           of compassionate or humanitarian considerations.
       c. Regulations 2.1: Minister is authorized to exempt any person from any
           regulation made under 114(1) or otherwise facilitate admission to Canada…if
           should be facilitated owing to the existence of compassionate or humanitarian
           considerations.

       d. Cases Considering H + C:
             i. Jiminez-Perez v. Canada (Minister of Employment and Immigration)
                 (SCC 1985):
             Facts: could a spousal sponsorship application be processed in Canada. S9
             of Act have to apply for a visa before appearing at port of entry.




                                           32
I: should H + C considerations waive requirement that visa be processed
overseas?
Held: Minister of immigration through officers is under a duty to consider
applications for exemption on compasionate or humanitarian grounds from
the requirement in s.9 of IA and to advise the applicants of the result.
Inland applications are permissible.
Ratio: the Minister, through officers, must consider H + C considerations
in all immigration matters.

ii. Baker v. Canada (Minister of Citizenship & Immigration) (1997 FCA):
F: appellant is a citizen of Jamaica who came to Canada, had 4 children
(are CDN citizens) she is schizo and on welfare. She is ordered deported.
She asks for a H + C review of deportation order. A negative decision is
found. Appellant wants the ―best interests of the child‖ to be a more
important factor in the 114(2) H + C review, as Canada proposed to do as
a signatory to Convention on the Rights of the Child.
I: can an international treaty define the substance or criteria to be
considered in an H + C review?
Held: No. Parliament has conferred an unfettered discretion on the
Governor in Council , by subsection 114(2), the power to authorize
Minister to permit most anyone to Canada. The executive cannot grant
powers or create rights or obligations in Canada where neither the
traditional prerogative, nor CL, nor Parliament nor legilsature so provide.
The executive cannot by the ratification of a convention alter the law of
Parliament which has conferred unfettered discretion. The Immigration
Act is not legislation implementing the treaty.
Ratio: international treaties/coventions or any act of the executive cannot
interefere with the unfettered discretion in 114(2) by imposing a condition.

iii. Vidal v. Canada (Minister of Emp & Imm) (1991 FCTD)
Held: this decision had been largely rejected (see Baker), but it claims
that there are certain basic propositions which are self-evident and must be
kept in mind in dealing with s114(2) applications: including:
 there are 2 grounds for favourable action under 114(2) public policy
     and H +C considerations. H + C considerations have some kind of
     objective meaning intended by Parliament which must not be
     artificially narrowed through the fettering of the discretion of
     immigration officers in applying those words. Subject to broad
     limitations the content of public policy must be defined by those
     having authority to fix public policy and political responsibility for
     content.
 Also note: court should not interfere with 114(2) discretion unless it is
     clear that discretion has been exercised in bad faith or on grounds
     unrelated to the purposes for which the discretion is granted. (in reality
     this will never be proven).


                              33
iv. Yhap v. Canada (Min Emp & Imm) (1990 FCTD)
F: Chapter 9 in the immigration manual gives rough rules of thumb on
how to apply H + C. This is lawful. However, the ―Refugee Claimants
Backlog Procedures‖ sets out rigid guidelines pertaining to H+C and limits
its application to specific classes of refugees. The applicant did not fall
within those classes and wanted an H+C review.
Held: applicant entitled to a full and fair review to determine the existence
of humanitarian or compassionate considerations. This consideration is to
take place independently of the consideration of the basic merits of any
other application advanced by applicant. The right to consideration on
grounds of H + C may not be unduly restricted. The elevation of a factor to
consider in exercising discretion under H + C may become an unlawful
fetter on that discretion if elevated to status of a general rule that aims at
consistency.

v. Karakulak v. Canada (Minister of Citz & Imm) (1996 FCTD):
F: application for review of decision of area manager to the effect that
there were insufficient H+C grounds to exempt applicants from Act (to get
landing). One ground upon which review was sought: applicants learned
that extrinsic/3rd party evidence was considered by area manager and this
was not disclosed to them
Held: if the immigration officer relied on extrinsic evidence this only
amounted to a breach of principles of natural justice. There was nothing in
the recommending officers notes or in immigration officer‘s decision
implicity or explicitly which suggested the extrinsic evidence had been a
factor. Application dismissed.
Ratio: very low duty of fairness required in an H + C review.
 Notes: a chance to respond does not mean an oral hearing may mean in
    writing. Immigration officer only has to disclose adverse material that
    officer intends to rely upon.

vi. Shah v. Canada (Min Empl & Imm) (1994 FCA)
F: appeal of immigration officer recommendation to GinC regarding
exercise of latter‘s discretion to grant an exemption from s9(1) of the Act
on H+C grounds.
Held:
       (1) Content of duty of fairness in this type of situation is minimal.
                      No hearing need be held
                      No reasons need be given
                      Not required to put forward conclusions officer
                        takes from material nor contradictions that may be
                        of concern.




                             34
                                   If the decision maker relies on extrinisic (not
                                      brought by applicant) material he must give
                                      applicant chance to respond
                     (2) The decision itself is wholly a matter of judgment and
                         discretion and the law gives the applicant no right to any
                         particular outcome. (unlike other areas of the law)
                     (3) It is the applicants onus to persuade decision maker that they
                         should be exempt from general requirements of the law.

              vii. Ivanov v Canada (Minister of Emp & Imm) (1993 FTR):
              F: applicant sought to have negtative decision on H+C set aside as no
              reasons were given. Submissions were made by applicant regarding long
              term common-law realtionship and the likelihood of sponsorship. The
              immigration file contained info about applicant‘s long term relationship
              and his intent to marry.
              I: did the officer‘s reliance on marriage concerns violate the duty of
              fairness to applicant?
              Held: if the immigration officer had doubts about marriage he should have
              gave applicant opportunity to respond; there was no interview held or
              opportunity to respond to those concerns was given to the applicant.
              Decision sent back for reconsideration.

IV. KEY DEFINITIONS
      Section 2(1):
      1. Canadian Citizen: means a person who is a citizen within the meaning of the
         Citizenship Act. If born in Canada then a citizen ―Solus‖ provision, if born
         on territory then citizeship bestowed ―from the soil.‖ However, if mother is
         not a citizen and child is not, she can still be removed and taking her child
         with her is a personal decision.
      2. Permanent Resident: means a person who
             (a) has been granted landing
             (b) has not become a Canadian citizen and
             (c) has not ceased to be a permanent resident pursuant to ss24 or 25.1
             and includes a person who ceases to be a citizen under 10(1) of
             Citizenship Act.
      3. Landing: means lawful permission to establish permanent resident in Canada.
      4. Immigrant: means a person who seeks landing.
      5. Visitor: means a person who is lawfully in Canada, or seeks to come into
         Canada, for a temporary purpose, other than a person who is
                     (a) a Canadian citizen
                     (b) a permanent resident
                     (c) a person in possession of a permit
                     (d) an immigrant authorized to come into Canada pursuant to
                         14(2)(b)
              3 categories of visitors:


                                          35
                i. student: may need visa or student authorization
                ii. work: may need employment authorization
                iii. tourist: not coming to work
6. Both immigrants and visitors need visas for entry but many visitors from
    certain nations are exempt from visa requirements. Just because a visa is not
    required does not mean they will not be excluded. Immigrants always need a
    visa.
7. An immigrant is a person with a visa who seeks landing which is the authority
    to become a permanent resident. Once a PR then can apply to be a citizen
8. Entry: means lawful permission to come into Canada as a visitor.
9. Admission: means entry or landing (as visitor or immigrant).
10. Convention Refugee: means any person who
        (a) by reason of a well-founded fear of persecution for reasons of race,
            religion, nationality, membership in a particular social group or
            political opinion,
                (i) is outside the country of the person‘s nationality and is unable
                     or, by reason of that fear, is unwilling to avail himself of the
                     protection of that country
                         or
                (ii) not having a country of nationality, is outside the country of the
                     person‘s former habitual residence is unable or, by reason of
                     that fear, is unwilling to return to that country, and
        (b) has not ceased to be a Convention refugee by virtue of subsection (2)
        but does not include any person to whom Convention does not apply….
         Note that the list in (a)(i.) is a closed list, gender or sexual orientation
            do not qualify…SCC is amenable to making them count.
         Has to be internal persecution by government. Cannot be refugee
            because your country is at war or in civil unrest. Ward v. Canada 1993
            SCC: Ward doublecrossed the INLA (=IRA), and feared for his life if
            he returned to Ireland. State should be assumed to protect its citizens.
         Canada takes ―non-refoulement‖ seriously. Singh: person who is a
            Convention Refugee claimant has right to have claim determined and
            are not removable until then.
         Section 4(2.1) Right of Convention Refugees: right to stay in Canada
            while lawfully here unless falls within s19… or convicted of certain
            offences.
         If Refugee status ends, you can claim H+C to stay.
11. Convention means UN Convention Relating to the Status of Refugees 1951
    and 1968.
12. Regulations 2(1)
        a. Convention refugee seeking resettlement: means a person…who is a
            Convention refugee
                (a) who is outside Canada
                (b) who is seeking admission to Canada for the purpose of
                     resettling in Canada and


                                      36
                      (c) in respect of whom there is no possiblity, within a reasonable
                          period of time, of a durable solution.
       In most cases refugees are dealt with by inland refugee determination. But not
          all refugees can just arrive in Canada. A Conv. Ref. Seeking resettlement is
          overseas. A visa officer will go overseas and listen to UNCHR personnel who
          will vouch and give identification to refugees. Canada now makes an effort to
          choose the elderly, sick and families from refugees nor able-bodied men as we
          did previously. Previously concerned about whether will become succesfully
          established in Canada (s6) now more humanitarian.
      12.5 Regulations Sections 7(1) Convention refugees seeking resettlement are
          subject to following admission requirements: (a) visa officer must believe a
          Conv Ref (b)some form of sponsorship… (c ) relating to PQ
      12.6 Regulations S 7.1 (1) states whom can sponsor a Convention refugee seeking
          resettlement. (a)5 or more Canadian citizens or PRs (b)corporation with reps
          in community intended to settle….
      13. Section 6(3): Displaced and Persecuted- GinC may make prescribe classes of
          refugees and Convention refugee who fall within may be granted admission to
          Canada subject to any regulations.
      14. Section 6(5) : immigrants and all dependents may be granted landing for
          reasons of H+C or public policy is under class of immigrants prescribed under
          paragraph 114(1)(e) and meets landing requirements under that paragraph.
                gov‘t has power to make special regs concerning classes of refugees or
                  immigrants and in the past was aimed at SE Asian, E Europe, C
                  America. Today it is more need focused.


      15. Family: means the father and mother and any children who, by reason of age
          or disability, are, in the opinion of an immigration officer, mainly dependent
          on the father or mother for support and, for the purpose of any provision of
          this Act and the regulations, includes such other classes of persons as are
          prescribed for the purpose of that provision.
               s2(2) Regs: ―family for s19(2)( c) of Act includes any accompanying
                  relative dependent on a visitor…
               s2(3) Regs: family for 27(1)(f) of Act includes persons who were
                  granted admission as members of family class or assisted relatives of
                  that person.
               s2(3.1) Regs: for inquiry under 29(3) and 69(2) includes any relative of
                  that person.
               2(4) Regs: for purposes of s 33(1) of the Act, ―family‖ includes any
                  relative who is dependent for support on the member of the family…
       The meaning of family varies throughout the Act and Regs.


Presumption and Burden of Proof




                                          37
1. The burden of proving a right to enter Canada is on the entrant regardless of legal
    status.
          Section 8(1) where a person seeks to come into Canada, the burden of proving
             that that person has a right to come into Canada or that his admission would
             not be contrary to this Act or the regs rests on that person.
          Section 8(2) every person seeking to come into Canada shall be presumed to
             be an immigrant until that person satisfies the immigration officer examining
             him or the adjudicator presiding at his inquiry that his not an immigrant.
Ex.
Canada (Min of Empl & Imm) v. Gill (1991 FCA)
F: Immigration and Refugee Board allowed appeal from refusal to approve application for
permanent residence of Gill‘s father et al. The father had been convicted of an offence in
19(1)(c ) of Act.
Held: s8(1) imposes on a person seeking to come into Canada the burden of proving that
such a person has a right to come into Canada or that such admission would not be
contrary to the Act or Regs. An applicant for landing is inadmissible under 19(1)(c )
unless he has satisfied the onus of providing evidence to the visa officer that GinC is
satisified tha applicant has rehabilitated himself.
Appeal allowed under H+C grounds.


BASIC PRINCIPLES
1. Canadian Citizens and permanent residents have the right to enter Canada.
        Section 4(1) A Canadian citizen and a permanent resident have a right to come
           into Canada except where, in the case of a permanent resident, it is established
           that that person is a person described in subsection 27(1).
        Charter constitutionalizes this provision for Citizens only:
                section 6(1) Every citizen of Canada has the right to enter, remain in
                   and leave Canada.
2. Canadian citizens and permanent residents have right to remain in Canada
        Section 4(2) subject to any Act of Parliament, a Canadian citizen and a
           permanent resident have a right to remain in Canada except where, in the case
           of a permenant resident, it is established that that person is a person described
           in subsection 27(1).
3. Permanent Residents have a right to enter Canada unless they are removed under
   27(1) and they may not have a right to remain in Canada if they are removable under
   27(1).
4. Convention Refugees: section 4(2.1) Subject to Act of Parliament, a person
   determined to be refugee under Act and Regs has, while lawfully in Canada, a right to
   remain in Canada unless they fall under s19(1)…or have been convicted of an offence
   under an Act Parliament for which a term of imprisonment of (a)more than 6 months
   has been imposed; or (b) 5 years of more may be imposed.
 the right to stay in Canada is a codification of Article 33 of UN Convention relating to
   the Status of Refugees.




                                            38
5. If a person is determined to be a Convention Refugee they may apply to immigration
    officer for landing for that person and any dependent… s46.04(1) Application for
    landing. Thus they can apply to be a permanent resident.
6. Rights of Indians: s4(3): A person who is registered as an Indian pursuant to the
    Indian Act has, whether or not that person is a Canadian citizen, the same rights and
    obligations under this Act as a Canadian citizen.
         this means that aboriginal Americans may have the same rights in Canada as a
            citizen.
Ex. Schiefer 1988: was a citizen of FRG; had lived in Manitoba with Indian Band for 10
years and was adopted by that band according to their custom. Went back to FRG and
upon return to Canada he claims he was a member of the Band. Immigration officer does
not believe him. Schiefer gets counsel (David Matas): who says his client was
―registrable‖ under the Indian Act (b/c of adoption): and under 4(3) of Immigration Act
should have same rights as Canadian citizen. Under section 13-- there is delay while
person is properly examined (can stay under 13(a)). Minister McDougall gave Minister‘s
permit.
 Someone ―registrable‖ under Indian Act may be able to fall under 4(3).

Ex. Mohawk Nation staddles ON, PQ, and NY; under Jay Treaty 1783 a tripartiate treaty
between US/UK/and Mohawk nation granted them rights to self government and
movement across borders.

Ex. Watt v. Canada : Watt was a member of Band whose territory straddled BC and WA
state. Watt was a U.S. citizen, he came to Canada to prepare burial sites. In B.C. he had a
marihuana conviction and became inadmissible under s19. Watt argues that he has a s35
Charter regarding aboriginal rights enjoyed by Canadian aboriginals.
FCA: may be plausible, up to adjudicator to decide; may be an aboriginal with rights in
Canada because Band historically lived in Canada; he may have right to move around
territory and fulfil his traditional role. Adjudicator was wrong not to consider Charter
reasons back to adjudicator.
 need to be aware of aboriginal rights and Charter, they may supersede the
    Immigration Act.

7. Section 5(1)- No person, other than a person described in section 4, has a right to
   come into or remain in Canada.
        not so simple, see Aboriginals.
8. Section 5(2): an immigrant shall be granted landing if not a member of inadmissible
   class and otherwise meets requirements of this Act and regs.
        After meeting obligations, immigrants can expect landing.
9. Section 5(3): a visitor may be granted entry and allowed to remain in Canada during
   period he was granted entry…if he meets requirements of Act and regs.
        Visitors do not have the same expectations as immigrants and fewer
           obligations, therefore entry is discretionary for them even if they meet the
           requirements.




                                            39
Introduction to the Admission of Visitors, Immigrants Convention Refugees and
Members of Designated Classes

(I) Default Provision is that everyone requires a Visa: section 9(1): Except in such cases
     as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall
     make an application for and obtain a visa before that person appears at a port of entry.
         (i.) Regulation s.13(1) a visitor listed in Schedule II is not required to make an
              application for and obtain a visa before he appears at a port of entry.
         (ii.) Schedule II : 1. Lists many nations; 5. U.S. citizens and persons lawfully
              admitted to the U.S. for permenant residence. ; 4. Persons holding travel
              documents issued by the Holy See.
         (iii.) Any person who applies for a visa may apply for accompanying dependent as
              well. Section 9(1.1) of Act.
          Visas, for most persons, are not required for a visit.
(II) General Principle of Admissibility of Immigrants s6(1): any immigrant, including
     Convention Refugee, and all dependents may be granted landing if it is established to
     the satisfaction of an immigration officer that the immigrant meets the selections
     standards established by Regs for the purpose of determining whether or not and the
     degree to which the immigrant will be able to become successfully established in
     Canada….
(III) This examination of the ―selection standards‖ under s6(1) as a requirement for
     landing is not the same as the ―Points system‖ in Schedule I. The points system does
     not apply to all immigrants, it stands alone is only activated by certain provisions. It
     basically gives ―units of assesment‖ depending on skills, age, etc.
(IV) Convention Refugees: Criteria for entering Canada:
         i. Section 4(2.1): a person who is determined to be a Convention refugee while
              lawfully in Canada has right to remain…
                    this is called an ―inland refugee.‖ A refugee can enter as a visitor or
                       immigrant and then claim refugee status.
         ii. Regs s. 7(1) Convention Refugees Seeking Resettlement: (a) must satisfy visa
              officer that person is a Convention refugee seeking resettlement and (b) visa
              officer must determine (i.) a group/corporation is sponsoring them…
              (ii.)financial or other assistance is available in Canada or (iii) the person has
              sufficient financial resources…
                    the burden is higher when applying as a Refugee from abroad visa
                       officer has to believe you are a refugee and that you will have some
                       support in Canada. The latter criteria is not required for inland
                       refugees.
(V) Regs s2(1) defines ―member of the family class‖. For family class immigrants the
     point system is irrelevant. Inland Convention refugees the points are irrelevant.
     Convention Refugees seeking resettlement from abroad points are irrelevant but in


                                              40
   assesing whether they will be established in Canada can consider points criteria. But
   today we look more at neediest.
(VI) Business Immigrants. Independent immigrants such as skilled workers (not a defined
   term need 70 points, if you have a relative you get 5 pts. Business immigrants include:
               1. Entrepeneur needs 25 pts. Regs 2(1): means an immigrant who intends
                   and has ability to establish, purchase or make substantial investment in
                   business…that will make a significant contribution to the economy
                   whereby employement opportunities will be created or continued for 1
                   or more citizens or PRs other than enterpeneur and dependents.
               2. Investor-- must have business experience and make minimum
                   investment of $400,000 needs 25 points. Regs 2(1) means an
                   immigrant who (a) has successfully operated, controlled or directed a
                   business (b) has made a minimum investment since the date of the
                   investor‘s application for an immigrant visa as an investor and (c) has
                   a net worth, accumulated by the immigrants‘s own endaevours
               3. Self-employed person-- who can establish business for themeselves;
                   who can contribute to social, cultural life of Canada ex. hockey
                   players, artists. 40 points. Regs 2(1): means a immigrant who intends
                   and has the ability to establish or purchase a business in Canada that
                   will create an employment opportunity for himself and will make a
                   significant contribution to the economy or the cultural or aritistic life
                   of Canada.
(VII) Section 6(1) of Act: any immigrant and refugee and dependents, if any may be
   granted landing. It does not say ―accompanying‖ dependents because they want assess
   all dependent regardless of whether they are ―planning‖ to come to Canada. Concern
   is that once primary immigrant becomes a PR their family class sponsorship rights
   will kick in and they will bring over infirm dependents who would not have been
   accepted in the first place. Families will often be rejected because of 1 dependent.

POINT SYSTEM
1. Schedule I to the Regulations.
2. It is a tool that can be called upon to assist visa officers in determining if someone
   should be an immigrant.
3. Convention Refugee claimant:
        i. In Canada, the only question to ask is if they are a Convention Refugee. Point
             system is irrelevant.
        ii. Convention Refugee Seeking Resettlement:
                 (1) seek admission to Canada and must establish they are a convention
                     refugee (if no documents a visa officer will put weight on UNHCR
                     documents) and
                 (2) Section 7 Regulations: visa officer must decide whether person will be
                     successfully established in Canada. To do that visa officer can take
                     account of the point system. But there are no minimum number of
                     points.




                                            41
         Government can direct how and when to apply points and can direct visa
             officers to give priority to elderly, women…
4. Immigrants:
A. Family Class:
        (i) is a person a member of the family class? Do they fall within definitions?
        (ii) Once passed, the point system is not used. The focus is on the Citizen‘s or
             PR‘s need to have family with them.
Other Immigrants: Point System does apply:
B. Skilled Worker/ Independent (General category that does not fit into others). Needs
    70 units of assessment for an immigrant visa.
Business Immigration: refers to entrepeneurs, investors, and self-employed: (Regs
ss8,9,10,11)
C. Investors and Entrepeneurs: need 25 units (not assessed under occupational
    considerations, therefore not as many points available out of 117).
D. Self-Employed: no points stated, therefore 70 units required. But, person satisifies the
    definition gets 30 units bonus so only need 40 points.
5. Finally: all categories get a bonus of 5 units if they have a relative in Canada.
6. Section 11(3) Regs: (a) a visa officer may issue an immigrant visa who does not have
    the requisite number of units in sections 9 and 10 or (b) can refuse an immigrant visa
    who is awarded enough units under ss 9 and 10.
         if, in his opinion, there are good reasons why the number of units awarded do
             not reflect the chances of the particular immigrant and his dependants of
             becoming sucessfully established in Canada and those reasons have been
             submitted in writing to, and approved by, a senior immigration officer.
7. Note s6 Selection Criteria to receive landing is not the same as the point system.



IMMIGRANTS
(1) Family Class; Regulations s2(1) member of the family class with respect to any
    sponsor, means (a) the sponsor‘s spouse (b) sponsor‘s dependent son or daughter (c
    )father or mother (d)grandfather or grandmother (e)brother…if orphaned, under 19
    and unmarried (f)fiancee…
(2) A Canadian citizen or Permanent Resident over 19 can sponsor a member of the
    family class. The point of the family class is to allow PR and Citizen to be joined in
    Canada by relative. Cdn citizen /PR initiates the process and gives and undertaking,
    then authorites look at sponsoree to see if inadmissible. Family class membership is
    based on nuclear family is very narrow: for many members of family you cannot
    sponsor them unless they are orphans.

PROCESS AND PROCEDURE RE IMMIGRANTS
(1) Bodies of Law to be mindful of:
    A.     Administrative law: legislation (fed and prov) establish tribunals to decide on
       many areas of laws. In the enacting statutes there are often ―privative clauses‖
       which reserve decisions for the tribunals themselves, telling courts to stay out.


                                             42
        Courts have responding by defer to tribunals where there are strong PCs on
        ―substantive matters‖ but have not been deferential concerning matters of natural
        justice or procedural fairness. This can be a right to be heard, right to counsel, to
        know case against you…Therefore, you can appeal any procedural matter under
        the Immigration Act to the courts.
    B.      Constitutional Law: separate and apart from Act ; eg Charter, division of
        powers.
June 8, 2000
(2) Immigrant Visa Application: (Applies to Family Class and non-Family Class
    immigrants)

   (a)     Visa Officers: are immigration officers stationed overseas (outside of Canada)
       and authorized by order of the Minister to issue visas s2(1). Visa officers assess
       visa applicants using the points in Schedule. They then decide whether to grant a
       visa. They technically take orders from Foreign Affairs. If visa issued, immigrant
       arrives at point of entry and confronts immigration officer.
   (b)     Immigration officers: means a person appointed or designated an
       immigration officer pursuant to section 109. 109(1) Immigration officers are
       appointed or employed under Public Service Employment Act. Immigration
       Officers examine immigrants to determine if they are inadmissible. They are under
       the control of Ministry of Immigration …
   (c)     Adjudicators: are civil servants appointed under Public Service Employment
       Act. S2(1) and 63.3(1) Ajudicators do 2 things: 1. Conduct inquiries under section
       19 (to determine if admissible) and inquiries under s27 to determine if removable.
       Adjudicators inquire into matters. When a section 19 problem arises this is always
       dealt with by adjudicators.

(3) Immigration and Refugee Board: is the administrative tribunal set up under the
    Immigration Act. It is composed of 3 divisions:

         1.        Immigration Appeal Division (IAD or Appeal Division)
         2.        Convention Refugee Determination Division (CRD or Refugee
            Division)
         3.        Adjudication Division

         -            Pre 1989 structure: the Immigration Appeal Board dealt with appeals
              but not Refugee claims.
         -            1989-> Immigration and Refugee Board set up; but with only 2
              divisions. This structure was in response to Singh, need for a refugee division
              not just civil servants who processed refugee claims.
         -            1992-> adjudicators put into their own division but did not have new
              jurisdiction—just dealt with s19 claims. For a time Adjudicators were moved
              around and sat in the other divisions—but they were only paid ½ as much




                                               43
   1.       Immigration Appeal Division: only jurisdiction in statute is from ss. 70,71
         and 77 of Act.
    s. 70(1): deals with removal of permanent residents (or persons that have a valid
    retruning resident permit) that are under removal orders can appeal to the AD on
    either or both of following grounds
    s. 70(1)(a) any ground of appeal that involves a question of law or fact or mixed law
    and fact and
    s. 70(1)(b) on the ground that, having regard to all the circumstances of the case,
the person should not be removed from Canada.
                            (this is a form of equitable relief.)
     Section 71: the Minister may appeal to the AD from a decision by an adjudicator in
the course of an inquiry on any ground of appeal that involves law or fact or mixed law
or fact.
                a.                   Section 77(3): Appeals by Sponsors- a Cdn citizen or
                    PR who has sponsored an application for landing that has been refused
                    may appeal to the AD on following grounds (either or both)
                        (a)                         on any ground of appeal that involves a
                            question of law or fact or mixed law and fact; and
                        (b)                         on the ground that there exist
                            compassionate or humanitarian considerations that warrant
                            the granting of special relief. (equitable appeal provision)
                         H+C is theoretically more narrow then ―all the circumstances
                            of the case‖ noted in s70(1) but likely to get same result in
                            each.
                         Refugees have nothing to do with Appeal Division; unless a
                            Refugee comes under a ss19 or 27 inquiry by an Adjudicator
                            and that decision is appealed to the AD via s71.


        2. Refugee Division: under s.67(1)- it has sole and exclusive jurisdiction in
           respect of proceedings under section 69.1 and 69.2 to hear and determine all
           questions of law and fact, including questions of jurisdiction.


               a.                Section 69.1(1) Hearing into Refugee Claims- where a
                 person‘s claim to be a Convention Refugee is referred to the Refugee
                 Division…the Division shall, as soon as practicable, commence a
                 hearing into the claim.
              b.                 Section 69.2 (1) Application for Determination of
                 Cessation of Refugee Status- The Minister may make application to
                 the Refugee Division for a determination whether any person
                 determined under Act or Regs to be a Convention Refugee has ceased
                 to be one.
         the only question the Refugee Division considers is whether this person is a
          Convention Refugee.


                                            44
3. Adjudication Division: the sources of jurisdiction are not overly clear.

               a.                 Section 80.1(1) Sole and Exclusive Jurisdiction- an
                  adjudicator has sole and exclusive jurisidiction to hear and determine
                  all questions of law and fact, including questions of jurisdiction, that
                  may arise in the course of proceedings that are required by this Act to
                  be held before and adjudicator.
              b.                  The matters that adjudicators deal with are ss19 and 27.
   (4) Refugee and Appeal Divisions are appointed by Cabinet --- many are political
       appointees and may not be able to act independent of government, especially if
       they only are appointed for 1 year. The Refugee and Appeal divisions are formal
       and have trappings of a court. The Adjudication division does not. Adjudicators
       cannot be fired easily, because they are unionized public servants.

  (5) Federal Court Act
      i. Section 18(1): grants exclusive original jurisdiction on the Federal Court Trial
           Division to
               (a) issue injuctions, certoriari, writ of prohibtion, mandamus…declaratory
                   relief against any federal board, commission or other tribunal….
      ii. Section 18.1(1) Application for Judicial Review- an application for judicial
           review may be made by the Attorney General or by anyone directly affected by
           the matter in respect of which relief is sought.
      iii. Section 18.1(3): Powers of Trial Division- on an application for judicial
           review, the trial division may
               (a) order a federal board, commission or other tribunal to do any act or
                   thing it has unlawfully failed or refused to do or unreasonably delayed
                   in doing; or
               (b) declare invalid or unlawful, or quash, set aside or set aside and refer
                   back for determination in accordance with such directions as it
                   considers to be appropriate….
      iv. Section 18(4): Grounds of Review: - The trial Division may grant relief under
           sub(3) if it is satisified that the federal board, commission or other tribunal
               (a) acted without jurisdiction….(f)acted in any other way contrary to law.
 To the federal court you cannot appeal issues of fact or law but you can appeal on
  grounds of jurisdiction which means natural justice. Must get leave to FCTD.

(6) Superior Courts of the Province:
       a. Courts of Appeal and tribunals in a province are statutory creations.
       b. The Supreme Court of Provinces have inherent jurisdiction to make any order
           or remedy to do justice in a set of circumstances. Even if there is no precedent
           or law.
       c. In recent years, immigration lawyers have been inviting Superior Courts to
           hear immigration matters. The BCSC in many cases defers to the FCTD but




                                            45
           can hear any matter. The reason for bringing before the BCSC, is that FCA has
           received a hard reputation.
               Ex. Langner v. Canada (Min of Emp and Imm): FCA: held that if
       government wants to deport a non-citizen parent that has Canadian citizen
       children there are no Charter issues in removing the parent. The government is not
       making the children leave the country but rather that is a personal parental choice.
       The SCC refused leave on appeal for this decision.
       d. At BCSC, can argue parens patriae (parent of land…people), is the Court‘s
           right to protect the interest of children under its jurisdiction . The SCC has
           held this is an undefinable jurisdiction. Thus counsel can argue this be used on
           best interests of children not to remove parents. When Federal Court was
           enacted our parens patriae power was not removed. BCSC will often make a
           decision and state that Federal Court has x amount of time to make.

CASES WHICH EXEMPLIFY A “JURISDICTIONAL TOUSSLE” BETWEEN
THE FEDERAL COURT AND THE PROVINCIAL COURT

   Federal Court Act says that the Federal court has exclusive jurisdiction over
    Immigration appeals
   Provincial Superior Court: inherent unlimited jurisdiction
   Because the Federal Court was constantly ―turfing out‖ cases, people started going to
    the Provincial Supreme courts
   the two lines of cases that ensued from the provincial supreme court dealt with:
     habeas corpus: must justify why a person is being detained
     parens patria: unlimited/undefinable broad jurisdiction; whenever there is a
        person who can‘t protect themselves, the court has a duty to ensure that the person
        is not abused.

Francis (Litigation Guardian Of) v. Canada (Min of Citizenship & Imm) (1998 Ont Gen
Div):
F: the applicants are 2 sisters and 1 brother. The 2 girls were born in Canada, the brother
came over from Grenada with mother. The Minister seeks to deport the mother. The
applicants seek a declaration that any and all orders of deportation be declared a nullity; a
declaration that it is in the best interest of applicants that their permanent residence not be
disturbed; and an interim order enjoining Minister from interfering with permanent
residence of applicants or mother.
Held: deportation order against mother quashed; No subsequent orders could be issued
except after notice given and best interests of children are considered in accordance with
rules of natural justice. Brother to remain in Canada until 30 days after determination of
mother.
Reasons:
1. Basis for courts jurisdiction is best interest of child and the need of court to protect
    their interests. Federal Court was not a better forum for determining constitutional
    rights of Canadian citizens.



                                              46
2. The Canadian born children are having their s7 Charter rights violated without
   compliance with the requirements of fundamental justice:
       Immigration authorities recognized no duty to give notice to children
          concerning deportation proceeding of parent.
       No steps given to children to obtain counsel.
       at minimum children must be identified, notice given and some method of
          seeing that their rights and interests are considered.
3. Court held on all the material that in best interests of applicants that they remain with
   mother in her care in Canada.

Fok (Guardian ad litem of ) v. Canada (Minister of Citizenship & Imm) (1997 BCSC) p
284
F: infant petitioner was 5, his mother a permenant resident and father was a citizen of
PRC. Father failed to qualify as a refugee and was under deportation order for conviction
of several criminal offences. Applicant sought to rely on Court‘s parens patriae power--
asking Court to protect its best interests by preventing Minister from removing father.
Court order interim injunction pending determination.
Held: pursuant to the law of BC there was a fair question to be tried. The question was
whether a Supreme Court judge in reliance on his parens patriae jurisdiction, would in the
circumstances grant a permanent injunction restraining the Minister from deporting the
petitioner‘s father.

Torres-Samuels (Guardian ad litem of) v. Canada (Min Cit & Imm) (1997 BCSC
Chambers) p 280
F: applicants are seeking an interim injunction to prevent execution of deportation order
against their father pending the hearing of their petition for protection from the Court
under parens patriae.
Held: the fact that the interim injunction would be to prevent enforcement of law, the
Court felt this matter could be addressed if the matter was set and heard as soon as
possible. As a term of the order of granting the stay a requirement the parties take all
steps necessary to ensure that the matter was heard within a reasonable period of time.

Suresh v. Canada [1999] O.J. No. 28 (Div.Ct) (NOT REQUIRED READING)

Convention Refugees
If a person is determined to be a Convention Refugee, s. 46.04(1) applies and this peson
has a right to remain and a right to apply for landing. (note: most countries do not have
such a right: that the clock starts ticking towards citizenship; in Germany, you have to
have German blood to have a right to citizenship…). Thus, in Canada, convention
refugees have the right to citizenship.
s. 46.04(3) a adjudicator deals with these s. 19 matters.
1. Definitions of Convention Refugee:
        i. Section 2(1): Convention Refugee means any person who




                                             47
         (a) by reason of a well-founded fear of persecution for reasons of race,
             religion, nationality, membership in a particular social group or
             political opinion,
                 (i) is outside the country of the person‘s nationality and is unable
                      or, by reason of that fear, is unwilling to avail himself of the
                      protection of that country, or
                 (ii) not having a country of nationality, is outside the country of the
                      person‘s former habitual residence and is unable or, by reason
                      of that fear, is unwilling to return to that country, and
         (b) has not cease to be a Convention refugee by virtue of subsection (2).
         But does not include any person to whom the Convention does not apply
         pursuant to section E or F of Article 1 thereof, which sections are set out in
         the schedule to this Act.
ii. Section 2(2) Cessation of Convention refugee Status- a person ceases to be
     a Convention refugee when
         (a) when person voluntarily revails himself of the protection of the
             country of his nationality
         (b) the person voluntarily reacquires his nationality
         (c) the person acquires a new nationality and enjoys the protection of the
             country of that new nationality
         (d) the person voluntarily re-establishes himself in the country that the
             person left, or outside of which the person remained, by reason of fear
             of persecution; or
         (e) the reasons for the person‘s fear of persecution in the country that the
             person left, or outside of which the person remained, cease to exist.
                  Called ―changed country conditions.‖ Principal reason for
                      ending refugee status.
iii. Section 2(3)- Exception- exception to 2(2)(e), a person does not cease to be a
     refugee if the person can establish that there are compelling reasons arising
     out of any previous persecution for refusing to avail himself of the protection
     of the country that the person left, or outside of which the person remained, by
     reason of fear of persecution.
          recognizes that political change may just be in form and not in
             substance; ie the persecutors may still be a part of a ―new‖ regime.
iv. Schedule- Sections E and F of Article 1 of the UN Convention Relating to
     the Status of Refugees
         E. This Convention does not apply to a person who is recognized by the
             competent authorities of the country in which he has taken up
             residence as having the rights and obligations which are attached to the
             possession of the nationality of that country.
         F. The provisions of the Convention shall not apply to any person w.r.t.
             whom there are serious reasons for considering that
                 (a) he has committed a crime against peace, a war crime, or a
                      crime against humanity…




                                      48
                      (b) he has committed a serious non-political crime outside the
                          country of refuge prior to his admission to that country as a
                          refugee;
                      (c) he has been guilty of acts contrary to the purposes and
                          principles of the UN.

2. Rights of Convention Refugees
      a. Section 4(2.1) Right of Convention Refugees- subject to Act of Parliament,
          a person determined to be Convention refugee has, while lawfully in Canada,
          a right to remain unless they fall under s19(1)… or a person has been
          convicted of an offence under any Act of Parliament for which a term of
          imprisonment of (a) more than 6 years has been imposed or (b) 5 years or
          more may be imposed.
      b. Section 46.04(1) Application for Landing-- any person who is determined
          by the Refugee Division to be a convention refugee may, within the prescribed
          period, apply to an immigration officer for landing of that person and any
          dependent of that person, unless the Convention refugee is
              (a) a permanent resident
              (b) a person who has been recognized by another country as a Conv.
                   Refugee and could return to that country
              (c) a national or citizen of a country other than the one the person left for
                   fear of persecution.
              (d) a PR of another country, aside from one the person left for fear of
                   persecution, and which the person could return to.
               Refugees can apply for landing (to be a PR) unless they have
                   nationality or PR status in a 3rd country or are already a PR.
      c. Section 46.04(3) Grant of Landing- …an immigration officer to whom an
          application is made under sub(1) shall grant landing to the applicant and to
          any dependent for whom landing is sought if immigration officer is satisfied
          that neither the applicant falls under s19 or convicted of offence for term
          >6mo. Or could be for 5 years.

3. Convention Refugee Seeking Resettlement
      a. Regs 2(1) : means a person, other than a person whose case has been rejected
         in accordance with the Comprehensive Plan of Action adopted by
         International Conderence on Indo-Chinese Refugees on June 14, 1989 who is
         a Convention Refugee
             (a) who is outside Canada
             (b) who is seeking admission to Canada for the purpose of resettling in
                 Canada and
             (c) in respect of who there is no possibility, within a reasonable period of
                 time, of a durable solution.
              ―durable solutions‖ include repatriation or settlement nearby homeland
                 if culturally similar.




                                            49
       b. A Convention Refugee seeking Resettlement must satisfy the criteria in Regs
          7(1) Admission Requirement for CRSR: (a) a visa officer is satisfied that
          the person is a Convention refugee seeking resettlement; (b) a visa officer
          determines that
              (i) a group or corporation is sponsoring according to s7.1 Regs
              (the rest are merely ―guidelines‖
              (ii) financial assistance is available in Canada for person and dependents
                   OR
              (iii) the person has sufficient financial resources to provide for lodging,
                   care, and maintenance and for the resettlement in Canada of person
                   and accompanying dependents.
              (c ) a visa officer determines that the person and the accompanying
              dependents will be able to become successfully established in Canada,
              taking into consideration (i.) ability to speak Eng/Fre (ii) age (iii)education
              (iv) number and age of dependents (v) personal suitability.
               Visa officers will often take the word of a UN representative but don‘t
                   legally have to.
               Convention Refugees seeking resettlement have to be sponsored under
                   7(1)(b) of the Regs, inland refugees do not have to.
               Although visa officer can select the ―premiere‖ refugees under Reg
                   s7(1)(c ), current philosophy is to take the meek and deserving
       c. Sponsorship-Regs 7.1(1) (a) group of not fewer than 5 or more individuals,
          each of whom is a PR or citizen, at least 19 and resides in expected
          community of settlement OR (b) corpration that has reps in the expected
          community of settlement.
               Corporation must be incorporated for purpose sponsorship (in the
                   articles of incorporation).

Convention Refugee Claimant in Canada / Inland Refugee
Determination Process
1. Following the SCC decision in Singh (this case got a lot of attention) refugees require
   an oral hearing. Parliament could have used s33-Notwithstanding clause- to override
   the SCC. Government knew that once hearings and lawyers involved the refugee
   determination process would become expensive and time consuming.
2. The government now focuses its attention on how much it can restrict an oral hearing
   without violating the refugee‘s Charter rights.

Process and Procedure re Inland Convention Refugee Determination
1. Refugee Division jurisdiction is set out in s. 67(1) ―the refugee has sole and exclusive
   jurisdiction to hear matters under s. 69.1 (claims by the person seeking refugee status)
   and 69.2 (minister‘s claim with respect to cessation (ie, changed country conditions.
   [If a s19 or 27 matter then it goes to adjudicators; a PR that is being removed may
   then claim refugee status to get right to stay]
2. Section 44(1) Act- Refugee Claim- any person who is in Canada, other than a person
   against whom a removal order has been made but not executed, unless an appeal from


                                            50
     order has been allowed, and claims to be a refugee may seek a determination of the
     claim by notifying an immigration officer.
          this is commonly done by flying in and declaring refugee at point of entry.
3. The claim is then referred to a senior immigration officer 44(2)
4. The senior immigration officer shall if claimant is eligible to have claim determined
     by the refugee division 45(1)(a)… Eligibility Phase/ Access Criteria Phase
      s. 45(1)
      s. 45(3)
      s. 45(4)
5. Elgibility Criteria 46.01(1): a person who claims to be a Convention refugee is not
     eligible to have the claim determined by the Refugee Division if the person…[there
     are certain persons who are not eligible to have claim determined]
         (a) already recognized as a Convention refugee by Canada or a country other than
             Canada; you can‘t ―assylum shop‖;
         (b) serious criminality or security concerns (s. 19-27 ―inadmissiblity provisions‖;
             or,
         (c) came to Canada through a ―safe third country‖ prescribed country under
             114(1)(s) [country which Canada believes takes refugee Convention Art. 33
             UN Convention on the Status of Refugees seriously] (however, recall that no
             countries have been prescribed; since Canada can‘t prescribe the U.S., Canada
             would never prescribe anyone. If Canada did prescribe safe third countries,
             she would be ―sitting pretty‖ (okay, Don))
      the eligibility criteria is not really used; effectively Canada could isolate itself
         from refugees by putting major countries on a 114(1)(s) list such that there is no
         way to arrive in Canada without going through one of these countries [Continuous
         voyage regulation] List not made because dispute over whether the U.S. should be
         on it.
6. S 46.02 if senior immigration officer determines that person is eligible to have
     claimed determined shall forethwith refer the claim to Refugee Division (then, we are
     dealing with s. 69.1 : where a person whose claim has been referred to the refugee
     division by the officer, the refugee division must hold a hearing.
Convention Refugee Determination Division Rules p. 884
a member can quickly deal with a convention refugee claim without a hearing
s. 18 Preliminary Conference in order to provide for a full and proper hearing and to
dispose expeditiously of the claim
s. 19 Determination of Claim Without a Hearing: the member looks at an individual
file to determine whether a person is a refugee or not.
7. s.46.03(1) Reference of Claim to refugee Division: where a removal order is ordered
     against someone not determined eligible to have claim determined on basis of
     s.46.01(b) but …..then senior immigration officer can refer claim to Refugee
     Division…
8. Then the person‘s claim is referred to the Refugee Division to determine status.
     s.69.1(1) of Act.
9. Section 49(1)(d), (e), (f): the execution of a removal order made against a person is
     stayed for persons claiming to be refugees for 7 days after order is made or becomes


                                            51
    effective…even if deemed ―not eligible‖(46.01(1)) or ―no credible basis for claim‖
    (69.1(9.1))
10. Section 50(1): Execution order is stayed if it interferes if it would contravene any
    other order made by judicial body or officer in Canada.
             Would a determination by Refugee Division suffice?
11. Convention Refugee Determination Division Rules: if Division determines person is
    not a refugee there is another H + C review (post-determination review). Refugees can
    be detained if believed likely to commit criminal offence. Minister must apply to
    adjudicator to get detention order (?)
12. S59- Constitution of Refugee Division(1) appointed by GinC …(4) members of
    Refugee Division are members of Appeal Division and vice versa.

Obligations of Transportation Companies: ss85-93.1 of Act
1. There is a onus on transportation companies to check travel documents, make sure
   they have Canadian visa
2. If company brings someone to Canada without documents and they are removable, the
   Co. pays for removal. So companies will make photocopies prior to travel as evidence
   of due diligence.
3. Section 85(1)a transportation company that brought a person to Canada may be
   required by the Minister to convey that person (a) to the country from which that
   person came…(3)A transportation company is liable to pay all removal costs of any
   person whom it is required to convey…if person has not been granted admission and
   at the time of arrival in Canada was not in possession of a valid and subsisting visa.

Immigration and Citizenship Related Offences and Enforecement
1. ss94-107.1
       94(1) guilty of an offence (a) come to port of entry and fail to appear before
          immigration officer
       (b) false or improperly obtained passport.
       94.1- knowingly organizes induces, aids abets, etc. the coming into Canada of
          a person who is not in possession of valid and subsisting visa, passport or
          travel document..
       94.4 offence to disembark at sea to aid illegal entry into Canada.
       96- offence to knowingly employ a person who is not a PR or citizen without
          proper authorization
       97- offences committed by Immigration officers and adjudicators.
       98-offence relating to transportation companies; (2)failure to check documents
          (4) can use defence of due diligence to avoid conviction.
       99(1) officers of corporations that commit offence under Act are liable is
          assented, authorized or acquiesced to commission of offence.
       102- warrants and rights to seize vehicles,documents.
       103- arrest and detention (1) Deputy Minister or senior immigration officer
          may issue a warrant for arrest and detention of any person where
              (a) an examination for inquiry is to be held, a decision is to be made
                  pursuant to 27(4) or a removal order or conditional removal order ..


                                           52
                   (b) in opnionof DM or that officer, there are reasonable gounds to believe
                       that the person poses a danger to the public or would not appear for the
                       examination, inquiry or proceeding in relation to the decision or for
                       removal from Canada.
                   (3) Adjudicator may make order for (a) release from detention of the
                       person.

2. Criminal Code:
        Section 57: forgery of passports is an offence.
        Section 58: fraud w.r.t. citizenship certificates
3. Citizenship Act: ss29-31 travelling on a fake passport… is an offence.
Definition of "certificate"
Citizenship Act 29-31
29. (1) For the purposes of this section, "certificate" means a certificate of citizenship, a certificate of
naturalization or a certificate of renunciation.

Offences and punishment

(2) A person who

(a) for any of the purposes of this Act makes any false representation, commits fraud or knowingly conceals
any material circumstances,

(b) obtains or uses a certificate of another person in order to personate that other person,

(c) knowingly permits his certificate to be used by another person to personate himself, or

(d) traffics in certificates or has in his possession any certificate for the purpose of trafficking,

is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars or to
imprisonment for a term not exceeding one year or to both.

Idem

(3) A person who

(a) without lawful authority issues or alters a certificate,

(b) counterfeits a certificate, or

(c) uses, acts on or causes or attempts to cause any person to use or act on a certificate, knowing it to have
been unlawfully issued or altered or to have been counterfeited,

is guilty of an indictable offence and liable to a fine not exceeding five thousand dollars or to imprisonment
for a term not exceeding three years or to both.

Idem

(4) A person who contravenes any provision of this Act or the regulations for the contravention of which no
fine or imprisonment is provided in this Act is guilty of an offence punishable on summary conviction.

Where offence is committed outside Canada



                                                        53
30. (1) An act or omission that would, if committed in Canada, be an offence under this Act is, if committed
outside Canada, an offence under this Act.

Jurisdiction

(2) Where a person has committed outside Canada an act or omission that is an offence under this Act, the
offence is within the competence of and may be tried and punished by any court having jurisdiction in
respect of similar offences in the place in Canada where that person is found in the same manner as if the
offence had been committed in that place, or by any other court to which jurisdiction has been lawfully
transferred.
Limitation period
31. Any proceedings in respect of an offence under this Act or the regulations that is punishable on
summary conviction may be instituted at any time within but not later than three years after the time when
the offence was committed.




Note on Acquiring Canadian Citizenship
A. Citizenship Act section 5: requires: an oath of allegiance, knowledge of English or
   French; knowledge of Canada (all these conditions are waivable).

5. (1) The Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to
be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years
immediately preceding the date of his application, accumulated at least three years of residence in Canada
calculated in the following manner:
(i) for every day during which the person was resident in Canada before his lawful admission to Canada for
permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for
permanent residence the person shall be deemed to have accumulated one day of residence;
(d) has an adequate knowledge of one of the official languages of Canada;
(e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
(f) is not under a deportation order and is not the subject of a declaration by the Governor in Council made
pursuant to section 20.

Residence
(1.1) Any day during which an applicant for citizenship resided with the applicant's spouse who at the time
was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the
public service of Canada or of a province, otherwise than as a locally engaged person, shall be treated as
equivalent to one day of residence in Canada for the purposes of paragraph (1)(c) and subsection 11(1).

Idem

(2) The Minister shall grant citizenship to any person who
(a) has been lawfully admitted to Canada for permanent residence, has not ceased since that admission to be
a permanent resident pursuant to section 24 of the Immigration Act, and is the minor child of a citizen if an
application for citizenship is made to the Minister by a person authorized by regulation to make the
application on behalf of the minor child; or




                                                     54
(b) was born outside Canada, before February 15, 1977, of a mother who was a citizen at the time of his
birth, and was not entitled, immediately before February 15, 1977, to become a citizen under subparagraph
5(1)(b)(i) of the former Act, if, before February 15, 1979, or within such extended period as the Minister
may authorize, an application for citizenship is made to the Minister by a person authorized by regulation to
make the application.

Waiver by Minister on compassionate grounds

(3) The Minister may, in his discretion, waive on compassionate grounds,
(a) in the case of any person, the requirements of paragraph (1)(d) or (e);
(b) in the case of a minor, the requirement respecting age set out in paragraph (1)(b), the requirement
respecting length of residence in Canada set out in paragraph (1)(c) or the requirement to take the oath of
citizenship; and
(c) in the case of any person who is prevented from understanding the significance of taking the oath of
citizenship by reason of a mental disability, the requirement to take the oath.

Special cases
(4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value
to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his
discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the
Minister shall forthwith grant citizenship to the person named in the direction.

Rights and obligations
6. A citizen, whether or not born in Canada, is entitled to all rights, powers and privileges and is subject to
all obligations, duties and liabilities to which a person who is a citizen under paragraph 3(1)(a) is entitled or
subject and has a like status to that of such person.

A. s5(1)(c ): within 4 years proceedings date of application must be residing in Canada
    for 3.
         Is residence, physical or intention?
Re Papadogiorgakis [1978] 2FC 208 (TD) Thurlow J: ―Thurlow analysis‖: a resident in
Citizenship Act is the same as a resident in Income Tax Act. It is where do they consider
themselves resident, even if they live elsewhere. Under income tax act: look at where
your home and assets are located. Many investors or entrepeneurs ―park the family‖ in
Canada and resume business in country of origin. Some J.s accept this, others such as
Muldoon J. give the Act strict construction and feel the person must remain in Canada.
C. Citizenship of Canada Act, Bill C-63 (first reading Dec 7, 1998) s6(1)(b) that 5 years
    prior to citizenship must be residing in Canada for 1,095 days=3 years; this is likely to
    change to 3 out of 6 years.


Note on Quebec Immigration Law
An Act Respecting Immigration to Quebec:
        s.3 Selection of Foreign Nationals- selection is intended to
             (a) contribute to the enrichment of socio-cultural heritage of PQ; pursuit
                 of demographic objectives
             (b) facilitate uniting of citizens and PR of PQ with close friends and
                 relatives.
             (c) enable PQ to assume its share of responsiblities regarding refugees.



                                                       55
               (d) to favour persons who will be able to become successfully
                    established in PQ.
        Division III: integration of foreign nationals
               -3.2.3. Minister shall establish and maintain an integration program for
       settling into PQ
               -3.2.4. Minister shall provide and take charge of the implementation of
       linguistic intergration services in french language.
               -3.2.5. Immigrants that do not speak french but meet other criteria are
       eligible for french language integration services.
        Division VI penal provisions
               -s12.3 offence to communicate false or misleading information to the
       Minister or investigator regarding (a) selection certificate…(b)access to linguistic
       services (c )financial services for a student… (d) for a loan for an immigrant in
       distressful situation.

Federal/Provincial Policy Concerns Underlying Immigration Law
(1) Demographic Concerns: the population of Canada is a concern to Canada for many
    reasons.
        a. the fertility rate is defined as the number of live births per female. The
            replacement rate (=steady population) is about 2.2. Canada has a 1.7 fertility
            rate and PQ has a 1.2 fertility rate. In the last century the rate was around 6. In
            the 1950s the baby boom surged up to 3.5-4.0; the baby echo in late 1970s was
            another upswing. Nonetheless, the population if borders were closed would
            start to decline by 2005 and 2010.
        b. Quebec does not want to lose its position vis a vis the ROC. Its population is
            holding steady but ON and BC are growing. PQ‘s immigration policies reflect
            the need to keep people in PQ, only 1/3 of immigrants to PQ stay there.
        c. The country as a whole must keep composition of population steady: the
            ―greying of population‖ can lead to collapse of social security etc. Need
            younger people working, paying taxes.
(2) Economic Concerns: immigrants are considered in a ―cost/benefit‖ analysis of their
    impact. On the whole, immigrants are less likely to receive social assitance, more
    likely to pay taxes, and perform economic functions that many citizens do not prize.
    The reason for their success is that they are ―selected.‖ Generally they earn more and
    pay more taxes. At the same time, when the economy is in recession, policy becomes
    anti-immigrant. The 1920s and 1950-60s were pro-immigrant because unemployment
    was low and enterprise lobbied for more workers. In hard times, immigrants become
    harder to ―absorb.‖
(3) Humanitarian Concerns: family unification is deemed ―humanitarian‖ by government.
    This is a bit of a misnomer because these people are sponsored by PR or citizens,
    most have jobs already in place, and sponsor obligated to care for them for significant
    period of time (10 years). The cost to taxpayers is usually negligible. Refugees: in this
    category some entrants may not be ―productive‖ members of society, but discretion
    exists and many are able-bodied.
(4) International Concerns:


                                              56
a. International Commitments: Canada is a signatory to international agreements
   and is subject to customary law of conduct amongst nations.
        UN Convention Relating to the Status of Refugees
        Free Trade Provisions relating to movement of business persons.
b. Relationship with other Countries: Canada aims to foster a positive
   relationship with all nations but particularly those with whom it trades,
   friendship, shares geography, political ideology.
        Sharing responsibility w.r.t. refugees; failed to conclude agreement
           witn U.S.; no 3rd country list because of dispute whether U.S. lives up
           to responsibilities.
        Brain Drain from Canada to U.S. 26,000/year.
        Canada as a recipient of brains from South Asia- India; up to end of
           Cold War India was able to obtain concession from US and Canada to
           stop poaching its academics. But with the USSR gone, US largely does
           not care who India supports. India made it harder to leave country; if
           you worked abroad you may not be able to work again in state run field
           (academics).
        Canada‘s Refugee acceptance rate is between 30-50% of applicants.
           UK may be around 5-8%; Spain/Portugal around 0.2%. The reason for
           this may be partially that refugees that reach Canada are more valid
           claimants, we are not surrounded by 3rd world countries.




                                    57
APPLICATION OF THE BILL OF RIGHTS AND THE CHARTER OF RIGHTS AND
FREEDOMS
(I) APPLICATION IN CANADA

(1) Bill of Rights s2 ―every law of Canada shall‖…not deny Bill of Rights guarantees.
    Immigration Act falls within this realm.
(2) Charter of Rights: s32: Charter applies to Parliament, government of Canada,
    legislatures and Government of the Provinces.
(3) Immigration Act s3(f)-Immigration Objectives: to ensure that any person who seeks
    admission to Canada on either a permanent or temporary basis is subject to standards
    of admission that do not discriminate in a manner inconsistent with the Canadian
    Charter of Rights and Freedoms.

Prata v. Canada (Minister of Manpower & Immigration) (1976 SCC)
F: Prata was subject to a removal order; Ministerial certificate had been issued for
security reasons to fast-track his departure. Prata argued he had not had opportunity to
have full information/disclosure of Minister‘s ―security reasons‖ and his equality before
the law s1(b) of Bill of Rights was violated  in that the Minister‘s certificate did not
allow H+C factors to be considered once removable.
Held : Martland J: holds that (1) procedure followed was correct (2) Act is intra vires
Parliament. These questions were not at issue. (3) Common law was that no alien had any
right to enter the country except by leave of the Crown, and that the alien was liable to be
sent home to his own country at any time, if , in the opinion of the Crown, his presence in
the country was not conducive to the public good. Crown has since passed such authority
to Parliament.
 do not count on Bill of Rights to aid your cause (see Singh)

Charter Cases: the SCC took the Charter more seriously than Bill of Rights.
Singh v. Canada (MEI) [1985] 1 SCR 177
F: 7 refugee claimants underwent the inland refugee process under 1952 Act. The
claimants were examined under oath by and Immigration Officer and a transcript was
taken. The Refugee Status Advisory Committee (civil servants) then conducted a paper
review of claim; there was no appeal or submissions made to Committee. The claimants
state the procedures do not fulfill Charter or Bill of Rights procedural obligations. We
need an oral hearing to the decision maker.
Held: SCC unanimous in result but split 3:3 on how to get there (reasons).
1. Claimants have right to oral hearing in front of decision maker at least where
    credibility is in issue (which in reality is probably for every case).
2. Betz: Bill of Rights: at this time the law was to avoid resorting to Charter unless
    absolutely necessary. Reads into Bill the right to an oral hearing.
3. Wilson: Charter s7: elaborates on what ―everyone‖ means ―every human being who
    is physically present in Canada and because of physical presence is amenable to
    Canadian law.‖ (because of presence they are amenable to law).
4. Were s7 rights violated? Yes because could return to face harm.



                                            58
5. Was the deprivation of s7 rights consistent with the principles of fundamental justice?
   No.
6. Is it saved by s1? No. Administrative efficiency cannot be used to avoid natural
   justice.
 7 claimants need oral hearings. The government did not resort to s33 and respected
   decision. This is the high water mark of Charter intervention into Immigration law.

June 20, 2000

Chiarelli v. Canada (MEI) [1992 SCC]
F: C was a permanent resident of Canada. Was convicted of an offence for which a term
of imprisonment for 5 years of more was available; he therefore fell into s27(1)(d)(ii) and
was removable for that reason. A report was made under 27(3) and a deportation order
made under 32(3). C appealed to the IAB; the IAB received a report from the Security
Intelligence Review Committee (SIRC)this indicated that C was a person under
19(1)(d)(ii); SIRC investigated and reported to GinC pursuant to s81(7). The GinC
adopted the conclusion of the SIRC and appellant Minister issued a certificate under
s82(1) with the result that the respondent ( C) could not assert compassionate grounds as
reason for allowing the appeal. C argues violation of Charter rights ss7,12,15.
Held: none of the Charter rights are violated
Reasons:Sopinka
1. Singh not even mentioned.
2. Section 7: life, liberty not violated. Fundamental Justice: minimal grounds of appeal
    needed to satisfy PFJ. Need only a ‗true appeal‘ to question first decision on legal or
    factual grounds. A wider appeal on H+C is purely discretionary and not part of PFJ.
    Ss27(1)(d)(ii) and 32(2) are not contrary to s7 of Charter.
3. Section 12- removal is not cruel and unusual punishment; it is a civil remedy. All
    countries have the right to do this.
4. Section 15- discrimination between citizens and PRs. This is permitted because the
    Charter itself, in section 6, distinguishes rights of 2 categories of persons.
 Decision does not say these Charter rights could never be violated.
 Conspicuous is absence of Singh. This decision was unanmious 9 judge ruling. Terms
    like ―alien‖ ; reference to Prata; the Crown has the right to determine the continued
    presence in Canada of an alien, subject to a deportation order, not conducive to the
    public good. If Act is intra vires, deference to Parliament.


Barbara Jackman :Advocacy, Immigration and the Charter
1. Main point: is that government is the gatekeeper of Charter jurisprudence w.r.t.
   immigration law. Why, because is someone challenges the constitutionality of a
   legigislative provision of the Immigration Act and the government thinks they may
   lose. The government has the discretion to bypass the law and grant visa or whatever
   person seeks effectively ending the litigation.




                                            59
2. Government will obtain legal advice from justices concerning their likelihood of
   success in a Charter challenge. They have likely assessed areas of the law which have
   ―risk of adverse Charter challenge.‖
3. Canadian Council of Churches v. the Queen: was litigated by Jackman, was a public
   interest challenge to Immigration Act, and the Council was not seeking anything more
   than change of laws. Could not be bought off by government. SCC held Council had
   no standing.

Dehghani v. Canada (ME&I) (1993 SCC):
appellant arrives in Canada and claims refugee status. When appellant was taken to
secondary examination he was not detained in the sense contemplated by s10(b) of the
Charter. 10(b) does not require that the appellant be provided with counsel at the pre-
inquiry or pre-hearing stage of the refugee claim determination process. This is merely an
information gathering stage.
 A person a point of entry is not ―detained‖ within in s10 of Charter.
 Does this mean a person can move on into country? No. Iacobucci stated in this case
    that it is important to recall there is no right for non-citizen to enter and remain (cites
    Chiarelli).

Ian Lee: examines the constitutionality of s114(1)(s) which allows the government to
prescribe a list of countries that abide by the Convention Relating to the Status of
Refugees. Immigrants that arrive directly or indirectly from 114(1)(s) countries would be
ineligible to have claim determined. Although there has been no such list prescribed (safe
3rd country list), Lee thinks this would unconstitutional. Casswell disagrees: he thinks in
the current legal environment the courts would defer to Parliament.

F. Pearl Eliadis The Swing from Singh: the Narrowing Application of the Charter in
   Immigration Law: SCC is moving away from Singh; unless Parliament is really out of
   line courts will defer to it. Since Chiarelli there have been less Charter cases (because
   decision closes doors and government‘s ability to avoid Charter litigation).

Langner v. Canada (ME&I) (1994 FCA)
F: Removal of parents of Canadian citizens. Parents claimed refugee status, but that was
rejected. Claims were rejected as was request to waive 114(2) requirement to leave
Canada to make application for PR. They are ordered deported.
FCA: appellants parents‘ decision to take children back to Poland or to leave in Canada
was a private decision and one which did not involve the government of Canada, there is
no government action to bring Charter into play. The Charter rights of the Canadian
children are not at issue; the Children retain their citizenship and rights and liberties
associated with citizenship subject to the constraints imposed by their parents in the
exercise of their parental authority.
 In addition removal of parents would not offend obligations contracted by Canada
    when it ratified the Convention of the Rights of the Child (Articles 9 and 10). If the
    appeal were allowed on this basis, putting a child on Canadian soil would allow to
    avoid Immigration laws. Court not prepared to accept this.


                                              60
OCCASIONALLY GOVERNMENT DOES LOSE CHARTER LITIGATION

Yamani v. Canada (Solicitor General) (1995 FC): Charter Wins!
this case was a bit of a surprise as at the end of the day, someone won a Charter
argument “against all odds”
F: Applicant was a landed immigrant (PR) who was applying for citizenship. Applicant
was Palestinian and was a founder of the Popular Front for the Liberation of Palestines
(PLFP). He was the subject of Security Intellgience Review Committee (SIRC)
reviews…Minister of E&I found applicant to be a person in 19(1)(g) which was grounds
for removal.
19(1)(g) persons who there are reasonable grounds to believe will engage in acts of
violence that would or might endanger the lives or safety of persons in Canada or are
members of or are likely to partcipate in the unlawful activities an organization that is
likely to engage in such acts of violence. (only the bold portion was successfully
impunged as this portion deals with membership in an organization not the likelihood
that Yamani was likely to participate)
Held: 19(1)(g) directly restricts freedom of association.
Reasons:
1. 19(1)(g) provides for persons who are not citizens ultimately to be excluded or
    deported from Canada because there are reasonable grounds to believe they are
    members of an organization likely to engage in acts of violence of the sort described.
    It is the association of persons as members of the organization that leads to their
    classification for exclusion or deportation. It is not their individual record of
    participating in violent activities. Rather it is the simple fact of membership for
    application of 19(1)(g).
2. The statute, therefore, infringes on the freedom of PRs to associate together in
    organization.
3. The infringement is not save by s1, thus 19(1)(g) is of no force and effect.
4. Thus the report of the SIRC which was based on 19(1)(g) was set aside; determination
    of GinC set aside because it was based on report of SIRC.

       Jolly (mid ‗70s) Fed.Ct.
        was a member of the Black Panthers, but was a member of the ―peaceful wing
           of this movement‖
       Fed Ct: deferred to Parliament; even if the evidence est. that the person would not
       be likely to engage in acts of violence, you still defer to the Minister (Yamani
       would overrule this case)

Halm v. Canada (ME&I 1995) FCTD             Charter Wins!
F: applicant was convicted in New York state of (1) sodomy and (2) endangering welfare
of child. Applicant was on bail pending appeal when appeal denied and ordered to
surrender himself. He fled to Canada, where he was arrested by Immigration officials. He
was ordered deported.


                                           61
Reed J : applicant successfully brought an application for judicial review quashing the
deportation order on the grounds that the sodomy section (159)of Criminal Code of
Canada was contrary to the Charter. This meant the applicant was convicted of an offence
but not one which, if committed in Canada, would be punishable by 10 years or more
(sufficient to bar entry).
-> Department initiated further proceedings to deport applicant on charges on bail
jumping and misprepresentation to immigration officials.
 Applicant argued that he could not be deported as it was a disguised extradition and
    that he should not be extradited to a country for an offence which does not exist in
    Canada.
         there is no legal authority for the proposition that simply because deportation
             to a foreign country may result in a greater penalty to an individual than
             extradition to a country that the deportation is contrary to s7 of the Charter.


STANDING TO CHALLENGE THE IMMIGRATION ACT
1. Government walks away from challenges by granting applicant what they want, eg.
   same sex sponsorship (put as visas in independent category).
 in some ways, this is sad as people without legal representation will be denied such
   access to ―justice‖
 after Chirelli, it is clear the courts will show a lot of deference to parliament re:
   Immigration

Canadian Council of Churches v. The Queen [1992 SCC] leading case PUBLIC
INTEREST STANDING
F: 40 page Statement of Claim was filed on Jan 3, 1989 (accompanied by reporters);
which argued against the discover process, the appointment of ―independent‖ board
members, salary, working conditions, etc. On Jan 1, 1989 the Inland Refugee
Determination Process and IRB came into force in response to Singh. Can. Coun.
Churches hired Barbara Jackman to challenge, in a civil cause of action, the Immigration
Acts provisions (omnibus challenge), as contrary to the Charter. Government concerned
b/c could not ―buy off‖ with a visa. Concerned about the discovery process of civil suit.
Gov‘t argues that Canadian Council of Churches has no standing. (note: this is the ideal
plaintiff as they represent not only Christians, but Muslims, Hindus, Buddhists, etc. and
they are not going to ―go away‖. They can not be dismissed by the court as ―trouble
makers‖). To have standing must be a party that is implicated directly or receive public
interest standing.
Test for Public Interest Standing:
        i. is there a serious issue raised as to the Act’s validity? [Cory, J.: yes, but
             Casswell argues that he is ―whining‖: ―it is perhaps unfortunate that this
             court is asked to fulfil the functions of a motions-court judge (Chambers Court
             Judge) in reviewing a statement of Claim, however I am prepared to accept
             that some aspects of the Statement of Claim do raise serious issues”]
        ii. has the plaintiff claiming public interest standing demonstrated a genuine
             interest in the validity (or is applicant directly affected)? [there is no way that


                                              62
            the court could have argued that the CCC did not have a genuine interest in
            this matter]
       iii. Is there a more reasonable, effective way to bring the Act‘s validity before the
            court?
             Cases crashes here. Yes, b/c every refugee claimant can raise Charter
                 issues, hire Barbara Jackman, legislation and application will raise these
                 challenges over time. Charter challenges are better served in concrete fact
                 patters.
             This means there will likely never be a comprehensive Charter challenge
                 to Immigration Act. In addition many refugees cannot afford such a
                 challenge.

Lagner v. Canada (MEI 1994 FCA):
children (Cdn citizens) did not have standing to attack the definition of ―sponsor: in the
Immigration Regulations. They did not have public interest standing.

EXTRATERRITORIAL APPLICATION:

(1) Does Charter apply overseas to a visa applicant (ie someone outside of Canadian
territory)? Can person complain about violation of Charter rights? The basic answer is
No, Charter does not apply to visa applicant overseas.

Ruparel v. Canada (MEI) (1990 FCTD)
Muldoon J. referred to and applied, MacQuiggan, JA‘s comment in obiter in FCA in
Canadian Council of Churches (affirmed in SCC); MacQuiggan: Charter does not
apply to visa applicants overseas. As a trial J in FCTD, applying clearly expressed FCA
obiter was probably the logical decision. No appeal. This rule has been subsequently
followed.

       a. Don Galloway: The Extra-Territorial Application of the Charter to Visa
          Applicants: Charter should apply overseas. The focus in the Singh case was
          with respect to the applicants amenability to Canadian law and therefore a visa
          applicant overseas is amenable to Canadian law and as such the Charter
          should apply. Don argues that a state does not look good if it respects certain
          rights and freedoms within its boundaries, but once immigration officers are
          overseas, they don‘t have to respect those rights and freedoms (ie, the
          Charter).
       b. Canadian embassies are Canadian territory.
       c. Applicants from inside Canada have full Charter provisions; Singh states
          Charter applies to ―everyone.‖
2. The SCC considered the extra-territorial application of Charter in Kindler v. Canada
   [1992] vol 2 SCR 779; Cory: Charter has no extra-territorial application; McLachlin:
   we must avoid extra-territorial guarantees of our Charter.
3. However, a gloss on this hard and fast rule arose in R v. Cook [1998 SCC]: in this
   case a U.S. marine came to Vancouver; while there Canadian government alleges he


                                             63
   murdered a cab driver; he was apprehended in U.S.; Vancouver police go down to
   U.S. and question him without granting him adequate s10(b) Charter rights (right to
   Counsel). Cook is extradited (loses challenge). At trial he claims his statements to
   police ought not be included. Issue: does Charter apply overseas? Held: yes, Charter
   may apply overseas.
        Effect of Cook on Rapurel? Casswell: likely none. The facts are not similar--
           an alien action vs. a person held in custody.


RELEVANCE OF FREE TRADE AGREEMENTS: NAFTA , CANADA-CHILE
FTA (CCFTA), and the GENERAL AGREEMENT ON TRADE IN SERVICES
(“GATS”) under the WORLD TRADE ORGANIZATION
Free Trade Agreements: deal with movement of goods, services, and in some cases,
movement of people
NAFTA/CCFTA: business persons can move to another member state on a temporary
basis as a visitor (the clock is not ticking towards immigration). The key idea is that
some people, who are citizens of member countries, can move as a business visitor to
Canada for some time (this ―temporary‖ time is not clear)
GATS—WTO: Annex on Natural Persons Supplying Services: member countries may
negotiate agreements allowing for the movement of natural persons supplying services
(note there are 120 signatories under GATS and whether such agreements come into force
remains to be seen).
1. Immigration Act
         Section 2(1) employment: ―means any activity for which a person receives or
            might reasonably be expected to receive valuable consideration.‖ (this way,
            you can work for your brother for free)
         Section 9(1) Application for Visas- ―except in such cases as are prescribed,
            and subject to sub(1.1), every immigrant and visitor shall make an application
            for and obtain a visa before that person appears at a port of entry.‖
         Section 10 Application by Students and Workers- except in such cases as
            are prescribed, every person, other than Canadian citizen or a PR, who seeks
            to come into Canada for the purpose of (c )engaging in employment- shall
            make an application to a visa officer and obtain authorization to come into
            Canada for that purpose before the person appears at a port of entry.
                 anyone who is not a citizen, PR, probably not refugees.
2. Immigration Regulations
 18-Employement Authorizations (1)subject to 19(1) and (2.2), no person, other than
    a citizen or PR, shall engage or continue in employment in Canada without a valid
    and subsisting employment authorization. (2) a person with a valid and subsisting
    employment authorization cannot continue unless he complies with each of the terms
    and conditions specified in the authorization.


        The test for employment authorizations is found in Regs 20(1): ―an
         immigration officer shall not issue an employment authorization to a person if,


                                           64
           (a) in his opinion, employment of the person in Canada will adversly
           affect employment opportunities for Canadian citizens or PRs. Or (b) the
           issue of e.a. will affect (i.) the settlement of labour dispute in progress at the
           place or intended place of employment or (ii)the employment of any person
           involved in such a dispute.
          20(3)
          20(4)
          Exceptions to Employment authorizations are found in Regs 19(1) and 19(2.2)
                 Note exception in 19(w): a person who pursuant who is defined under
                   sub 2(1) of NAFTA Implementation Act as exempted from
                   requirement to obtain employment authorization.
                        -Exemptions under Appendix 1603.A.3 of NAFT Agreement--
                        seep958 Professionals.
                 Note exception in 19(1)(y): a person defined in sub2(1) of CCFTA
                   Implementation Act, is exempted from the requirement to obtain an
                   employment authorization.
                        -Exemptions under Appendix K-03.IV.1of CCFT Agreement
                        seep969 Professionals.
          Regs 19(3)-- Certain persons may apply for employment authorization at point
           of entry, if that person is
                        (i) a national of US
                        (ii) PR of US
                        (iii) resident of St P&M or Greenland
                        (iv) a person whose application for employment authorization has
                             been approved by a visa officer but has not been issued.
          Regs 19(4) certain person may apply for employment authorization when they
           are in Canada: (b) students with student authorizations (d)sports persons
                 19(4)(j): one group who can apply for employment within Canada is a
                   person determined to be a refugee (i.)under regulations or (ii) under
                   s71.1 (inland refugee determination 71.1); once determined to be a
                   refugee then can apply.

World Trade Organization:
General Agreement on Trade and Services: Annex allows business visitors to move
among signatories; defintion is very narrow (more narrow than NAFTA) but it applies to
many countries.




                                            65
FAMILY CLASS IMMIGRANTS
I. Immigration Act:
        2(1) family: means the father and mother and any children who, by reason of
           age or disability, are, in the opinion of an immigration officer, mainly
           dependent on the father or mother for support and, for the purspose of any
           provision of this Act and the regulations, includes such other classes of
           persons as are prescribed for the purpose of that provision.
        member of the family class: has meaning assigned by regulations.
        s3 Immigration Objectives: (c ) to facilitate the reunion in Canada of Canadian
           citizens and permanent residents with their close relatives from abroad.
        s6(2): Sponsorships- (Any Canadian citizen or permanent resident may, where
           authorized by the regulations, sponsor the application for landing of (a) any
           person who, in relation to the Canadian citizen or permanent resident, is a
           member of the family class.
        s77- Appeals by Sponsors- (1) Where a person has sponsored an application
           for landing made by a member of the family class, an immigration officer or a
           visa officer, as the case may be, may refuse to approve the application on the
           grounds that
               (a) the person who sponsored the application does not meet the
                   requirements of the regulations respecting persons who sponsor
                   applications for landing, or
               (b) the member of the family class does not meet the requirements of this
                   Act or the regulations
               and the person who sponsored the application shall be informed of the
               reasons for the refusal.
        77(3) Appeals by Sponsors- subject to sub(3.01,3.02, 3.1), a Canadian citizen
           or permanent resident who has sponsored an application for landing that is
           refused pursuant to sub(1) may appeal to the Appeal Division on either or both
           of the following grounds:
               (a) on any ground of appeal that involves a question of law or fact, or
                   mixed law and fact, and
               (b) on the ground that there exist compassionate or humanitarian
                   considerations that warrant the granting of special relief.
        77(3.01): Limitations- No appeal lies to the Appeal Division under sub3 in
           respect of a person (a) with respect to whom a certificate has been filed under
           sub 40.1(1) …or (b) who is a member of an inadmissible class described in
           paragraph 19(1)(c ) (c.1)(c.2)(d) where the Minister is of the opinion that the
           person constitutes a danger to the public in Canada.
II. Regulations
        2(1) accompanying dependent: with respect to a person, means a dependent of
           that person to whom a visa is issued at the time a visa is issued to that person
           for the purpose of enabling the dependant to accompany or follow that person
           to Canada.
        dependant means (c ) with respect to a person other than a person referred to
           in paragraph (a) or (b),


                                            66
              (i) the spouse of the person,
              (ii) any dependent son or dependent daughter of that person or of the
                   spouse of that person and
              (iii) any dependent son or dependent daughter of a son or daughter referred
                   to in (ii).
       member of the family class, with respect to any sponsor, means
              (a) the sponsor‘s spouse
              (b) the sponsor‘s dependent son or daughter
              (c) the sponsor‘s father or mother
              (d) the sponsor‘s grandmother or grandfather
              (e) the sponsor‘s brother, sister, nephew, niece, grandson/daughter who is
                   an orphan and is under 19 years of age and unmarried.
              (f) the sponsor‘s fiance
              (g) any child under 19 whom the sponsor intends to adopt, and who is (i.)
                   an orphan, (ii)-(v) placed for adoption under certain circumstances.
              (h) any relative as long as no other relatives that could be sponsored.
       sponsor: means a person who
              (i) is a Canadian citizen or PR who is at least 19, sponsors an application
                   for landing a member of the family class and satisfies an immigration
                   officer that the person will reside in Canada exclusively and without
                   interruption begininning on date of undertaking in respect of member
                   of family class until that person has been granted landing and will
                   reside in Canada after that time or
              (ii) Cdn. Citizen (only) >19, sponsors application for landing….and
                   satisfies a visa officer that, at the time of giving an undertaking the
                   person lived exclusively outside Canada and that person will reside in
                   Canada when the member is granted landing in Canada
       dependent daughter: means a daughter who (a) less than 19 (b) enrolled in full
          time student in…(c )wholly or substantially financially supported by her
          parents and (i.) determined by a medical officer to be suffering from a physical
          or mental disability and (ii) determined by immigration officer to be incapable
          of supporting herself.
       dependent son (same as above)
 s2(7) Regs: for the purposes of dependent son and daughter, where a person has
  interrupted a program of studies for an aggregate period not exceeding one year, the
  person shall not be considered thereby to have failed to have continuously pursued a
  program of studies.
 Section 41 Regs: Refusal of Sponsored Applications: where an immigration officer
  refuses to approve application for landing of member of family class that was
  sponsored shall provide to sponsor a summary of information on which reason for
  refusal is based. 41(1.1) if refused under s19 grounds, then those grounds will be only
  reasons provided. 41(2) if refused under 77(1) Act, the immigration officer shall
  inform the sponsor, in writing, the he has a right to appeal to Appeal Division
  pursuant to 77(3) of the Act.



                                           67
III. Citizen or PR can sponsor members of the family class.
IV. Arranged Marriages/Marriages Aimed at Sponsorship
        a. Section 4(3) Regulations: ―The family class does not include a spouse who
            entered into the marriage primarily for the purpose of gaining admission to
            Canada as a member of the family class and not with the intention of residing
            permanently with the other spouse.‖
        b. Ahn v. Canada (MEI 1987): Korean sponsored application was refused
            because Immigration Officer believed the sponoree has entered into the
            marriage primarily for the purpose of gaining admission to Canada as a
            member of the family class and not with intention of residing permenantly
            with other spouse. Held: refusal invalid. 4(3) sets out a double test: if
            sponsoree‘s or applicant‘s intention falls outside the terms of either test, he or
            she is a spouse for the purpsoses of the definition of the family class. The
            motive behind the intention and the intention are not the same thing.
            Therefore:
                1. Both branches must be proven
                2. A motivation to marry, may not be an intention under either branch
                     (such as to gain admission for your son)
                3. May intend to gain admission, but also intend to live with that person.
                     Fine.
                4. High onus on government.
                5. Crucial issue is whether intention not to live with other person.
                6. Intent gauged at time of marriage
VI. Appeals by Sponsors for Denials of Sponsorship
        i. s 77(1) Act: where person has applied for sponsoring member of family class;
            77(3) allows for H+C considerations.
        ii. If government wins under Regs 4(3) and the applicant is not considered a
            spouse, then do not fall within member of family class and then 77(3) appeal
            does not apply. H+C does not apply and Appeal Division has no jurisdiction to
            apply it.
V. Concern with ―fiancees‖: being engaged does not entail any legal obligation to a
    person, so immigration officials are suspicious of persons who sponsor ―fiancee‖ as
    opposed to spouses. Arranged marriages are recognized and are not considered
    fraudulent.
        a. Regs 6(1) Subject to…where a member of the family class makes an
            application for an immigrant visa, a visa officer may issue an immigrant visa
            to the member and the member‘s accompanying dependants if (d) in the case
            of a fiancee
                (i) the sponsor and the fiancee intend to reside together permanently after
                     being married and have not become engaged primarily for the
                     purpose of the fiancee gaining admission to Canada as a member of
                     the family class,
                (ii) there are no legal impediments to the proposed marriage of the sponsor
                     and the fiancee under the laws of the province in which they intend to
                     reside and


                                             68
              (iii) the sponsor and fiancee have agreed to marry each other within
                   ninety days after the admission of the fiancee, and…
       b. Under 6(1)(d): unlike under the spousal sponsorship provisions, if the
          government establishes either no intention to reside together OR have engaged
          with intention to enter Canada as member of family class then not a fiancee
          within section.
       c. Gabriel v. Canada (MEI 1984 FCA): appellant was landed on condition that
          she marry within 90 days. This condition could not be satisfied as a result of
          circumstances beyond the appellant‘s control. If a condition is impossible to
          fulfill and person knows that and continues to remain in Canada in breach of
          condition -- that omission to do something which a person is required to do is
          the commission of a positive act and thus satisfies the definition of the term
          ―contravenes.‖

VI. Sponsorship and Financial Undertaking
a. Sponsor of a spouse or dependent son/daughter does have to take an undertaking.
b. Regs 6(1)(b.1): states that a visa officer may grant an immigrant visa to member of
    the family class and accompanying dependants where after receiving information that
    the sponsor is no longer able to fulfill undertaking the immigration officer
    recalculates the amount of the sponsor‘s gross Canadian income less financial
    obligation in 12 months prior to date that sponsored member of FC meets
    requirements under Act, and is equal to or greater than low income cut off.
c. Regs 6(3) Paragraph 6(1)(b.1) does not apply where the sponsored member of the
    family class is a person who (a) is the sponsor‘s spouse and does not have any
    dependent sons or daughters; (b) is the sponsor‘s spouse and has dependent sons or
    daughters each of whom at time of undertaking is (i.) less than 19 years of age and
    unmarried, and (ii) does not have children; or (c ) is sponsor‘s dependent son or
    daughter and is less than 19 and does not have children.
         sponsoring a spouse and/or dependent son/daughter does not require the low
            income cut off requirement.
d. Regs 5(2) a Canadian citizen or PR who meets the following requirements is
    authorized to sponsor the application for landing of any member of the family class (f)
    the person‘s gross Canadian income less payments made or due on account of
    financial obligations is equal to or greater than low income cut off.
e. Schedule IV: sets out low income cut off.
f. Undertaking is still required for spouse and dependent children. If you do not fulfill
    undertaking can be removed.
g. Appeal of removal goes to the Appeal Division which can look at ―all the
    circumstances‖ as relevant. Only in severe cases would dependent child/spouse be
    removed from Canada.
h. Act s 114(2) allows the GinC to exempt anyone from the regulations made under the
    Act or otherwise facilitate admission on Minister‘s satisfaction or basis of H+C
    considerations.




                                            69
i. Courts have held: visa officers must consider H+C grounds in all cases. SCC although
   statute says they ―may‖ in actuality they ―must‖ consider in all cases. Thus all regs are
   subject to 114(2)-- including cut-off provisions.

Cases - Family Class Immigrants

Canada v. Gill (FCA 1991): IRB refused to allow respondent Gill‘s appeal from refusal
of application for PR for father; father had been convicted of a criminal offence under
19(1)(c ). Held: s77(3) permits an appeal on the ground that there exists compassionate or
humanitarian considerations that warrant granting of special relief. A hearing of such
nature is a hearing de novo …the board is entitled to consider contemporary matters
which necessarily involve a consideration of a change of circumstances. Matter remitted
to AD to consider whether H+C considerations warranted granting of special relief.

Lidder v. Canada (FCA 1992): respondent submits undertaking to sponsor nephew who
is 17. By the time the nephew received application for permanent residence he has 18 and
therefore too old to be sponsored. Held: neither doctrine of estoppel nor the related
doctrine of reasonable or legitimate expectation creates a substantive right. Effective date
of a sponsored application is the date of filing of the application itself. Thus, respondent
had not sponsored an undertaking by a member of the family class and could not appeal
to what was the IAB; the Boards was without jurisdiction to hear and in this case allow
the respondent‘s appeal.

Canada v. Gill (FCTD 1997): respondent and husband execute and undertaking as
sponsors for husband‘s adopted daughter. Huband withdraws and application refused.
Held: Court upheld Appeal Division: respondent was a joint sponsor and therefore
entitled to appeal.

Parmar v. Canada (IRB Appeal Division 1996): Respondent filed undertaking to have
father, mother and 3 sisters brought to Canada. 2 sisters were refused on basis of not
being enrolled in educational institution full time. Held: application for PR can be split
and the inegligibility of an alleged accompanying dependant of a member of family class
is not a bar to the admission of the member of family class and other admissible
accompanying dependants. Visa officer has positive duty to issue visas to applicants that
both eligible and admissible. When the splitting of application has occurred and members
of FC receive visas, there is no right of appeal to the Appeal Division in respect of the
ineligible applicants who are claimed to be accompanying dependants as there has been
no refusal of an application for landing by a member of the family class.

Deol v. Canada (1992 FCA): Immigration officer refuses application for landing of
sponsored application on ground that one of sponsoree suffered from mental retardation.
AD dismissed appeal. Held: Board‘s role vis-a-vis opinions of medical officers. It may
not question the medical diagnosis, but when requested, it should enquire into the
reasonableness of their conclusion as to the probable demand on government services.




                                             70
Decision set aside, b/c IRBoard merely assumed that mental retardation would lead to an
excessive demand on government services.


Kahlon v. Canada (MEI 1989 FCA): sponsorship application refused on basis that
sponsored mother‘s children did not fall within definition of dependent children because
they were illegitimate. By the time the Immigration Appeal Board heard the case the law
had changed and depenedent children included illegitimate children. Held: the decision
on appeal (to IAB) was a trial de novo and entitled to consider the law as it then stood. At
that time dependents were eligible.

Toor v. Canada (MEI) (1983 FCA): Immigration Appeal Board dismisses appeal of
Canadian citizen whose application to sponsor his wife and children was denied because
wife had no intention to reside in Canada. Held: set aside finding, as not supportable on
evidence. Because sponsor is Canadian citizen, wife‘s ineligibility had no bearing upon
whether the children met the requirements on the Act or Regulations.

Canada (MCI) v. Dular (1997 FCTD): respondent adopts child 5 days after 19th birthday.
After this time the respondent signed an undertaking for assistance and child applied for
landing. Regulations state that child must be adopted before 19 and unmarried to be
sponsored. Held : Board and FCTD: the age 19 restrictions in regulations violated the
equality rights under s15 of Charter, and not saved by s1. FCTD: discrimination on the
basis of adoptive parentage in an analogous ground of discrimination, but Board erred in
application of s1 test sent back to Board to rehear the matter.

Hunt v. Canada (MCI 1997 FCTD): Held: the doctrine of legitimate expectation cannot
create a substantive right, only a procedural one. In this case, the relief sought here is
from a change in the law, (the Regs) which would be substantive not procedural relief. No
judicial review can be granted here.

Canada (MEI v. Narwal) (1990 FCA): respondent is sponsored by fiancee; marries and
divorces. Respondent then marries former husband‘s brother in UK and then sponsored
new husband. FCA: respondent was validly married by the law of Canada and that the
Board had jurisdiction to grant relief on humanitarian and compassionate grounds. Case
departs from traditional view that the law governing capacity to marry is that of the
domicile of both parties at the time of the marriage.

Canada (MEI) v. Sidhu (1993 FCA): the respondent applied to sponsor an newly adopted
daughter for landing. Appeal Division held the adoption was valid, even though under the
law of India (Hindu Adoptions and Maintenance Act s11) the adoption was invalid. It did
so because the statute was discriminatory and invalid as contrary to public order in
Canada
Held: Appeal Division has no jurisdiction under Immigration Act to grant a foreign
adoptive status which was not valid under foreign law on the grounds that it is contrary to
Canadian public policy. Parliament has not purported to legislate independently on the


                                             71
subject matter of adoption for immigration purposes, one must defer to foreign
legislation.

Carson v. Canada (MCI) (1995 FCTD): held: application for exemption under 114(2)
from requirements of s9(1) of Act. No hearing need be held or reasons given. An
applicant in this type of case did not have a case to meet but must try to persuade decision
maker that she should be provided with exceptional treatment and be exempted from
general requirements of the law. In order to succeed in an attack on H+C decision, the
applicant must persuade the Court that the decision maker erred in law, proceeded on
some wrong or improper principle, or acted in bad faith.

Ramoutar v. Canada (MEI) (1993 FTD): application for judicial review of a decision not
to refer applicant‘s case to Gov in Council for an exemption (from s9(1)) on H+C
grounds. Immigration officer felt there was a reasonable doubt about bona fides of
marriage, and would not refer to Gov in C. Held: proceedings under 114(2) of Act are
civil in nature and therefore the appropriates standard of proof is proof on a balance of
probabilties- the civil standard.

Horbas v. Canada (MEI) (1985 FCTD): application to quash decision rejecting Imelda
Horbas as a spouse in section 4(3) of Regs. Held: application dismissed:
1. Section 4(3) not inconsistent with Charter, and saved under s1 anyhow.
2. An officer disqualifying a spouse under 4(3) must apply twofold test:
       i. marriage must be entered into primarily for the purpose of gainning admission
           to Canada and
       ii. there must be no intention on the part of the prospective immigrant of residing
           permanently with the sponsoring spouse.
3. Charter section 7 does enshrine a constitutional guarantee of the right of any Canadian
   to choose anyone in the world as a marital partner and bring to Canada to live with
   them.
4. Section 4(3) Regs does not violate s15; it does not discriminate against cultures that
   practice arranged marriages because in order to be disqualified must intend not to live
   with person.
5. The right to freedom of association (2(d)) does not include right to cohabit.




                                            72
move before Family Class, start with the Immigration Act sections
CONVENTION REFUGEES
1. Context: Canada‘s obligation to refugees is signified as a signatory to the Convention
   Relating to the Status of Refugees. Canada is bound to protect legitimate refugees. It
   is a back up to the international expectation of states to protect their own citizens.
   Ward v. Canada (MEI) (1993 SCC): ―if a state is able to protect a (refugee) claimant,
   then his or her fear (requirement of refugee status) is not objectively-speaking, well
   founded.‖ ―Persecution under the Convention includes situations where the state…is
   simply unable to protect its citizens.‖ Nations, however, should be presumed capable
   of protecting its citizens.
2. The purpose of Refugee law is to provide protection to Refugees not as an alternative
   to immigration. Urbanek v. Canada (MEI) (1992 FCA): ―Purpose of refugee
   determination system is to provide a safe haven to those who genuinely need it and
   not to give a quick and convenient route to landed status for immigrants who cannot
   or will not obtain it in the usual way.‖
3. Canada has an obligation to protect the basic level or international standard of human
   rights; we do not owe refugees the level of rights we expect as Canadians. We are not
   supposed to impose Canadian rights on others; Ward v. Canada; Pushpanathan v.
   Canada (C&I) (1995 FCA) International Convention applies to acts committed by
   refugee claimant after arrival; Article F denies refugee status to certain individuals;
   trafficking in heroine is contrary to principles of UN and thus appellant properly
   excluded from refugee process.
         in practice Canadian decision makers routinely impose Canadian values on
           decisions.
4. Naguleswaran v. Canada (C&I) (FCTD 1995): Colombo (Sri Lanka) is still an
   internal flight alternative despite the severity of government sweeps of area. People
   are not refugees merely because their government conducts security sweeps; simply
   because they do not enjoy Canada‘s freedoms does not make them refugees.
5. Membership in a particular social group: courts have emphasized that its not just
   membership in a social group but the perception is also relevant. Ward: LaForest:
   perceived political opinion would be a good basis for membership. The test is
   objective as to whether you are persecuted, so it does not matter why.
        a. Sexual orientation as a ground for persecution: in the early 1990s it was not
           and the evidence of Gay and Lesbian groups was perceived as biased. It is now
           a ground for persecution.
                 Dykon v. Canada (MEI) 1994 FCTD: claimant was a citizen of
                    Ukraine, and was abused and harassed because he was perceived to be
                    gay. Perception as gay with necessary government connection is a
                    basis for persecution.
        b. A person may be apolitical or asocial but if perceived by their government to
           be part of a group this can give rise to a fear of persecution.




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CASE LAW INTERPRETATION OF CONVENTION REFUGEE DEFINITION

I. Definition s2(1) Act:
―Convention refugee‖ means any person who
      (a) by reason of a well-founded fear of persecution (note: persecution is not
           synonymous with discrimination and does not mean being treated unfairly by our standards—
           torture, serious annoyance/interference with a persons rights to work, to go to school, etc.;
           however, keep in mind that the persons making the decisions are Canadians and they are
           unable to divorce themselves from their conceptions of discrimination (women being forced to
           wear certain clothes may be seen as being persecuted—but, where do we get off thinking that
           we can decide what is appropriate….is forcing men to go to war okay?) for reasons of
           race, religion, nationality, membership in a particular social group (women in
           certain countries who refuse to wear particular clothing have been held to be members of a
           particular social group; what about gay men in Mexico, what about women who suffer
           domestic abuse? – the courts have held that women from Trinidad who suffer domestic abuse
           are suffering persecution) or political opinion,
                (i) is outside the country of the person‘s nationality and is unable or, by
                     reason of that fear is, unwilling to avail himself of the protection of
                     that country, or
                (ii) not having a country of nationality, is outside the country of the
                     person‘s former habitual residence and is unable or, by reason of that
                     fear, is unwilling to return to that country, and
        (b) has not ceased to be a Convention refugee by virtue of subsection (2)
but does not include any person to whom the Convention does not apply pursuant to
section E or F of Article 1 thereof, which sections are set out in the schedule to this Act
note: there must be some state involvement/complicity in this persecution

2(2) Cessation of Refugee Status - a person ceases to be a Convention refugee when
       (a) the person voluntarily reavails himself of the protection of the country of the
           person‘s nationality;
       (b) the person voluntary reacquires his nationality;
       (c) the person acquires a new nationality and enjoys the protection of the country
           of that new nationality;
       (d) the person voluntarily re-establishes himself in the country that the person left,
           or outside of which the person remained, by reason of fear or persecution; or
       (e) the reasons for the person‘s fear of persecution in the country that the person
           left, or outside of which the person remained, cease to exist.

Mahmoud v. Canada (MEI) (1993 FC)
i. Held: in order to make a change in circumstances the change must be shown to be of
    proven durability; see test of Prof. Hathaway The Law of Refugee Status. In most
    cases some reasonable period of time must go by in order to permit trier of fact to
    assess the changing conditions and their consequences.
ii. In this case the Board‘s decision that a transistional Ethiopian government did not
    mee the Hathaway test.




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2(3) Exception - a person does not cease to be a Convention refugee by virtue of 2(2)(e) if
the person establishes that there are compelling reasons arising out of any previous
persecution for refusing to avail himself of the protection of the country that the person
left, or outside of which the person remained, by reason of fear of persecution.

Hassan v. Canada (MEI)(1994 FC)
i. s2(3): only applies to extraordinary cases in which persecution is relatively so
    exceptional that even in the wake of changed circumstances it would be wrong to
    return refugee claimants.
ii. 2(3) does not require an on-going fear of persecution.

Arguello-Garcia v. Canada (MEI) (1993 FC)
i. 2(3) is based on a general humanitarian principle which permits a person who has
     suffered serious past persecution to retain or obtain Convention refugee status despite
     fundamental changes in his/her country of origin.
ii. Past persecution must be ―atrocious‖ or ―appalling‖= very bad, exremely savage
     wicked; wicked or cruel act.
iii. Torture and sexual assault experienced by applicant qualified as atrocious and
     appalling.


I. WELL FOUNDED FEAR OF PERSECUTION
Rajudeen v. Canada (MEI) (1985 FCA)
       i. Subjective and objective element to satisfy the definition of Convention
            refugee. Subjective component relates to existence of the fear of persecution
            in the mind of the refugee. Objective component requires that the refugees fear
            be evaluated objectively to determine if there is a valid basis for that fear.
Re Jugpal (1989): Immigration and Refugee Board examines a Sikh man‘s application for
refugee status: Persecution:
       i. Subjective element: persecution suffered in past was sufficient to substantiate
            well founded fear of persecution. Had been arrested and tortured.
       ii. Objective element: evidence offered that young Sikhs could be arrested and
            detained, tortured or killed. Letter from US Congressman outlined
            deteriorating human rights in Punjab. Evidence that father was arrested…

 Under the Subjective element, there must be enough evidence that claimant fears
  persecution; the Board is entitled to disbelieve claimant.
 However, Courts have instructed Board not to over emphasize inconsistencies that
  arise in evidence that may result from cultural, linguistic, translation differences…
 Objective element: is an examination of country conditions; IRB documentation
  centre. Tribunal can look at whatever it wants but not entitled to take parties by
  surprise.

Adjei v. Canada (MEI) (1989 FCA):



                                             75
       i. Reasonable Chance of persecution required: is there a reasonable chance that
          persecution would take place were applicant to return country of origin. There
          need not be more than a 50% chance (that is on balance of probabilities) but it
          must be more than a minimal possibility.

Petrescu v. Canada (Sol Gen) (1993)
       i. Citing Adjei: all that is needed to prove persecution is a ―reasonable chance‖
           or ―good grounds.‖ Good grounds is anything above a mere or minimal
           possibility.
Ponniah v. Canada (MEI) (1991 FCA)
       i. An applicant must prove ―good grounds‖ or a ―reasonable chance‖ which falls
           between the upper limit of a 50% and a minimal or mere possibility. There is
           no intermediate ground, once over a mere possibility it is good grounds.
 The reasonable chance or good grounds must be proven on the balance of
   probabilites.

II. PERSECUTION-- 2 STEPS

What Constitutes Its Meaning?
Rajudeen v. Canada (MEI) (1985 FCA)
      i. ―Persecute‖ is not defined in Convention; dictionary: ―to harass or afflict with
           repeated acts of cruelty or annoyance.‖ ―Persecution: a particular course or
           period of systematice infliction of punishment directed against those holding a
           particular (religious belief).‖
                Note physical harm is not a prerequisite for persecution.
                Physical mistreatment would almost always be considered persecution
                Economic proscription, generally, would not qualify.
                Deprivation of civil liberties, right to vote, to participate in civic life,
                   cannot access jobs, schools, subject to police checks lies in between
                   physical harm and economic depravation. The further away you go
                   from physical harm the less likely the conduct is going to be classified
                   as persecution.
Pour-Shariati v. Canada (MEI) (1997 FCA)
      i. Indirect persecution does not constitute persecution within the meaning of
Convention refugee. Rizkallah v. Canada: held that there had to be a personal nexus
between the claimant and the alleged persecution on one of the Convention grounds.

Osoble v. Canada (MEI) (1993)
       i. Somalia applicant flees civil war. Notes case of Salibian v. Canada (MEI 1990
           FCA): test for applicants from country of civil war: civil war is not a bar to
           a refugee claim provided the fear felt is not that felt indiscriminately by all
           citizens as a consequence of the civil war, but a fear felt by the applicant
           himself, or by group associated with, or on account of a risk of persecution
           based on one of the reasons stated in the definition.



                                             76
At Who‘s Hands?
Rajudeen v. Canada (MEI) (1985 FCA)
       i. Persecution must have been committed or condoned by the sate itself and
           consist of conduct either directed by the state toward the individual or in the
           state knowingly tolerating the behaviour of private citizens or refusing or
           being unable to protect the individual from such behaviour. .
               1. State directed persecution
               2. State tolerated persecution
               3. State refusal or inability to protect
 Must be some form of government ―involvement‖; just because elements of society
   are persecuting you does not mean you are a Convention refugee. The purpose of
   Convention refugees is to give protection to persons who‘s home state won‘t give
   protection.

Surujpal v. Canada (MEI) (1985 FCA)
       i. Decision of IAB quashed because evidence showed that police were complicit
           in the broader sense in the persecution and harassment of applicant. It is not
           required that State participation in persecution be direct; it is sufficient that it
           is indirect provided there is proof of State complicity.

Ward v. Canada (MEI) (SCC 1993)
      i. Facts: Ward lived in N. Ireland, and joined INLA which is a violent
          organization, Ward guarded hostages, when hostages ordered to be killed,
          Ward underwent a predicament of conscience. He helped hostages escape and
          the INLA sentenced him to death. He was British and obtained a Irish
          passport. He entered Canada as a visitor and claimed refugee status. IAB
          found Ward to be a refugee. AG applied to FCTD, and TD sent back for
          reconsideration. IAB found refugee again, appeal to FCA which found not
          refugee; Ward appeals to SCC.
      ii. State complicity in persecution is not a prerequisite to a valid refugee claim. If
          a state is able to protect a claimant, then the claimant‘s fear is, objectively, not
          well founded. But persecution does include situations where state is unable to
          protect its citizens.

Badran v. Canada (MCI) (1996 FCA)
      i. Applicant was a member of social group-his family and a group of anti-
           terrorist supporters. Evidence showed that state could not protect children of
           police officers from terrorist attack.
      ii. The inability to protect citizens against random terrorist attack will not
           constitute an inability of state to protect citizens.
      iii. There is a limited exception: where past, personal incidents qualify an
           individual as a member of a particular social group which the state is unable to
           protect. In this case, applicant member of a small targetted group which was
           different from random instances of terrorism.




                                              77
Kadenko v. Canada (Sol. Gen) (1996 FCA):
      i. Once it is assumed that the state has political and judicial institutions capable
           of protecting its citizens, it is clear that the refusal of certain police officers to
           take action cannot in itself make the state incapable of doing so.
      ii. If refusal to take action is that of police as an institution, then different.
      iii. Where state is democratic: the burden of proof on claimant is in a way directly
           proportional to the level of democracy in the state in question: the more
           democratic a state‘s institutions, the more the claimant must to exhaust all the
           courses of action open to him. (Just seeing a few cops, not enough).
                Contrast with Smith.



III. ON BASIS OF 1 OR MORE ENUMERATED GROUNDS

        1. Note that the list : ―…for reasons of race, religion, nationality, membership in
           a particular social group, or political opinion…‖ is a fixed/closed list. Not like
           section 15 of Charter…
        2. ―Race‖ ―Religion‖ and ―Nationality‖ have more content, the latter 2 have been
           subject to broader interpretations (to remedy the closed list).

Political Opinion
Astudillo v. Canada (MEI) (1979 FCA)
        i. Test for interpreting political activities: it is NOT whether the IAB considers
             that the applicant is engaged in political activities, but whether the ruling
             government of the country of applicant so considers his conduct.
Musial v. Canada (MEI) (1982 FCA):
        i. Facts: Polish seamen claimed to be Convention refugee because of fear of
             having to serve in Afghanistan. The applicant‘s ―politics‖ was his
             conscientious objection to war.
        ii. The claimant‘s fear of persecution was no different that that of any draft
             evader in the country. The draft was a law of general application. No
             reasonable grounds to believe that applicant‘s claim for Convention refugee
             status could be established.
 The FCA is saying either: a. not a political opinion to disagree with a law that applies
    generally or b. (Caswell) objecting to military service does make one a refugee; the
    draft is common under our own system so we cannot equate it with persecution.

Zolfagharkhani v. Canada (MEI) (1993)
       i. Facts: applicant was Iranian and served in Iranian military during Iran/Iraq
           war; after discharge he was ordered to serve as paramedic and learned of
           government intent to use chemical weapons against the Kurds. He deserted
           and fled the country.
       ii. Issue: was solely his conscientious objection relating to the participation in
           chemical warfare not to war in general.


                                               78
      iii. The Board accepted probable use of chemical weapons as fact. The
           international community deems this contrary to basic rules of human conduct.
           Thus, the ordinary conscription law of general application as applied to a
           conflict which intended to use chemical weapons, amounts to persecution for
           political opinion.
      iv. Considerations relating to the status of an ordinary law of general application
           in determining the question of persecution:
               1. the intent or principal effect of an ordinary law of general application
                   is relevant to the existence of persecution (not the motivation of
                   applicant).
               2. the neutrality of an ordinary law of general application (vis a vis the 5
                   grounds) must be judged objectively by Canadian courts and tribunals.
               3. in such consideration, the ordinary law of general application, should
                   be given a presumption of validity and neutrality (even in non-
                   democracies), and the onus is on claimant to show the laws are
                   inherently or for some other reason persecutory.
               4. not enough to show particular regime is generally oppressive, must
                   shoe law in question is persecutory in relation to a Convention ground.
 the difference between this case and Musial is that international (and Cdn) standards
  deplore chemical warfare, so objecting to the draft into chemical warfare is a political
  opinion.
 there are acceptable ways to kill people.

Membership in a Social Group
1. This category is perceived as a ―catch-all‖ for those who don‘t fall within others.

Ward v. Canada (MEI) (SCC 1993)
      i. Facts: Ward tried to justify his claim for refugee status on basis of well
          founded fear of persecution by the INLA on basis of his membership in a
          particular social group- the INLA.
      ii. Meaning of ―particular social group‖- 3 categories identified
              1. Groups defined by an innate or unchangeable characteristic. [Includes
                  such bases as gender, linguistic background, sexual orientation]
              2. Groups whose members voluntarily associate for reasons so
                  fundamental to their human dignity that they should not be forced to
                  forsake the association; and [human rights groups]
              3. Groups associated by a former voluntary status, unalterable due to its
                  historical permanence. [person who‘s past actions may harm him
                  today- human rights activist]


Cheung v. Canada (MEI) (1993 FCA) (P.42)
   i. Applicant was from China and had a 2nd child contrary to 1 child policy and
      claimed she was a refugee. Are women with more than 1 child faced with forced




                                            79
         sterilization a social group within meaning of definition? Yes, because they satisfy
         enough of these criteria
             1. a natural or non natural group of persons with
             2. similar shared background, habits, social status, education, values,
                  history…and
             3. sharing basic, innate, unalterable characteristics, consciousness, and
                  solidarity or
             4. sharing a temporary but voluntary status, with the purpose of their
                  association being so fundamental to their human dignity that they should
                  not be required to alter it.
ii. But that does not mean all women who have more than 1 child are refugees: Only
     those women who also have a well-founded fear of persecution as a result of
     membership in that social group.
iii. Was forced (strongly coerced sterilization) persecution? Court noted that it was citing
     UN Universal Declaration of Human Rights Arts. 3 and 5.


 Some examples : China‘s 1 child policy: ―women in China‖ is a social group.
  ―Perceived sexual orientation‖ was deemed a social group.
 In the case of Smith: a 14 year old boy from UK was deemed a refugee because
  British authorities (child welfare and police) did nothing about continued sexual
  abuse by father. ―Abused child‖ was a social group.

Kadenko v. Canada (Sol. Gen) (1996 FCA):
      i. Once it is assumed that the state has political and judicial institutions capable
           of protecting its citizens, it is clear that the refusal of certain police officers to
           take action cannot in itself make the state incapable of doing so.
      ii. If refusal to take action is that of police as an institution, then different.
      iii. Where state is democratic: the burden of proof on claimant is in a way directly
           proportional to the level of democracy in the state in question: the more
           democratic a state‘s institutions, the more the claimant must to exhaust all the
           courses of action open to him. (Just seeing a few cops, not enough).

Rodionova v. Canada (MEI) (1993 FC)
i. Held: a woman can belong to a particular social group by being in danger of domestic
   violence without regard to whether the state permits, condones, acquiesces in, or fails
   to prevent such violence. That is just a threshold. Once a member, claimant must still
   show that she fears persecution approved, permitted, or not effectively combatted by
   the state in her country of origin.

 Note: Smith is bad law. An abused child may be a valid social group (see Rodionovo)
  but once a social group must show the appropriate nexus to state. In a democratic
  state, there should be a high burden in proving all outlets in a democratic state were
  exhausted and that police were indifferent as an institution (Kadenko).




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Claimant Must be Outside Country of National Origin (Former Habitual Residence) and
Be Unable or Unwilling to Return
1. Section 2(1.1) Multiple Nationalities - for the purpose of the definition ―Convention
   refugee‖ in sub(1), where a person has more than one nationality, all references to the
   person‘s nationality in that defintion shall be construed as applying to each of the
   countries of which the person is national.
        Tribunal must consider all countries that claimant is a citizen of, must prove
          persecution in all of them.
        This can be hard for persons who are exiled from a country.
        Hard for persons who cannot leave their country.

Katkova v. Canada (MCI)(FCTD 1997)
      i. Applicant was a Jew who was entitled to citizenship in Israel. The CRDD
           declined refugee status because she had that right. FCTD: no she did not
           actually have that right because only ―Jews that expresses desire to live in
           Israel‖ has a right to live there under law of return.
            Entitlement to citizenship in 3rd country must go there before claiming
               refugee here.
      ii. Issue of nationality in international law to be decided on the basis of whether
           there is a genuine link between the person and state. Factors to consider in
           determining the ―genuine link‖ are:
               1. habitual residence of individual
               2. centre of individual‘s interest
               3. individual‘s family ties
               4. individual‘s participation in public life
               5. attachment shown by the individual for the country and whether the
                   individual has inculcated the attachment in children.

Ward v. Canada (MEI) (SCC 1993) Ward v. Canada (MEI) (SCC 1993)
      i. ―Unable‖: means the state is unable to provide protection against persecution
          (or is ineffective or denied such as in a state of civil war).
      ii. ―Unwilling‖ : means refugees who refuse to accept the protection of the
          country of nationality. If claimant was willing that would be incompatible with
          a claim that person was outside country owing to a well founded fear of
          persecution.

INTERNAL FLIGHT ALTERNATIVE
1. To have a well founded fear of persecution, there has to be no safe place for you in
   that country. Developed in response to Sri Lanka and Yugoslavia where countries
   divide into jurisdictions.
2. Claimant must establish no safe place in country or if a safe place then no way to get
   there.

Rasarantnam v. Canada (MEI) (1992 FCA)


                                            81
       i. IFA concept is inherent in Convention refugee definition.
       ii. In order to conclude IFA exists, Board must be satisfied on B.O.P. that there is
            no serious possibility of a claimant being persecuted in the IFA.
       iii. Conditions in the IFA -part of country- must be such that it would not be
            unreasonable for the claimant to seek refuge there.
       iv. Determination of whether there is an IFA is integral to determination of
            whether applicant is refugee.
       v. The question of IFA must be expressly raised at hearing stage by refugee
            hearing officer or the Board and claimant afforded opportunity to address it
            with evidence and argument.

Kahlon v. King (1993)
      i. Sikh man living in Punjab feared persecution; CRDD agreed there was
          persecution but felt a IFA existed outside of Punjab state.
      ii. Court: CRDD erred in looking at all Sikhs in general living in India outside
          the Punjab; the question to be answered was there a serious possibility of the
          applicant being persecuted elsewhere in India.

Thirunavukkarasu v. Canada (MEI) (FCA 1994)
       i. Sri Lankan Tamil, who lived in North, was denied refugee claim because IRB
           found an IFA in South West. FCA overturns.
       ii. IFA:
              1. Burden of proof on claimaint; claimant must show BOP, a serious
                  possibility of persecution throughout the country including IFA
              2. Obligation to notify the raising of IFA issue on Board or government.
              3. Claimant is expected to resort to IFA if not unreasonable to do so. The
                  IFA must be realistically accessible to the claimant, barriers to getting
                  there must be reasonably surmountable; not expected to endure great
                  physical danger to get there or endure undue hardship in travelling or
                  staying there. -Don‘t have to live in remote areas. Ask: is the IFA an
                  objectively reasonable to live there.

Kulanthavelu v. Canada (MEI) (1993)
       i. Tamil in Sri Lanka; CRDD found reasonable possiblity of persecution in
            Jaffna but a IFA in Colombo.
       ii. Applicant had letter from UNHCR stating that relatives,past
            employment…can allow persecution throughout the country.
       iii. No requirement for Court of CRDD to follow contents of UNHCR letter.
       iv. In this case, no notice of IFA issue was granted, and applicant had discharged
            IFA burden, sent back to redecide.

Kanagaratnam v. Canada (MEI) (1996 FCA)
      i. If an IFA exists in a country, the claimant, by definition, cannot have a well
         founded fear of persecution in her country of nationality.




                                            82
       ii. If an IFA is proven, then, as a matter of law, there is no need for the Board to
           decide whether there was persecution in the area of origin as a prerequisite to
           the consideration of an IFA.

Hashmat v. Canada (MCI) (1997 FCTD)
     i. Applicant sought judicial review of CRDD decision that applicant would not
          suffer persecution in Northern Afghanistan.
     ii. CRDD failed to consider the undue hardship applicant and family would
          experience travelling from Kabul to North; evidence suggests rape of women
          and children common.

Naguleswaran v. Canada (MCI) (1995 FCTD)
i. People are not ipso facto refugees because their government makes security sweeps
   on occasion.
Northern refugee settlers of Colombo may have to endure inconvenience of security
sweeps but this does not negate Colombo as an internal flight alternative.
Thabet v. Canada MCI (1998 FCA)
       i. Stateless Palestinian lived in Kuwait and then U.S., applies for refugee status.
       ii. FCTD: a stateless person who has habitually resided in more than 1 country
            before making refugee claim must establish his or her claim by reference to
            the last country of formal habitual residence.
       iii. FCA: stateless person must show on BOP that he would suffer persecution in
            any country of formal habitual residence. In addition, as long as claimant does
            not face persecution in a country of formal habitual residence that will take
            him back, he could not be determined to be a refugee.

Zia v. Canada (MCI 1997) (FCTD)
        i. Iraqis apply for Convention refugees seeking resettlement designated class in
             Canadian Embassy in Jordan. Application for JR denied.
        ii. Visa officer assessing a refugee claim in these circumstances has a duty to act
             fairly. That duty is somewhat limited by comparison with that owed
             Convention refugee claimants applying within Canada for the reason that such
             applicants do not face deportation by Canadian authorities to the country
             which they claim fear of persecution.
        iii. The fact that applicants briefly attended at a Canadian Embassy for an
             interview or other purpose in no sense made them persons claiming refugee
             status from within Canada.

Chan v. Canada (MEI) (1995 SCC)
i. Chinese man claims refugee status and states fear of persecution is based on his
    having more than 1 child and fear of forced sterilization.
ii. Since not all persons who breach the 1 child policy face forced sterlization, the
    appellant is required to establish a well founded fear of forced sterlization before he
    can attempt to rely on that type of persecutory treatment. In this case, forced
    sterlization remains no more than mere possibility. Thus, open to Board to conclude


                                             83
    that it could not determine appellant to have a well founded fear of persecution in the
    form of forced sterilization.

Narvaez v. Canada (MCI) (1995 FC)
i. Applicant was a divorced female citizen of Ecuador who feared violence from former
    husband; she had been subject to physical and sexual abuse.
ii. Held: women subject to domestic violence in Ecuador consituted members of a
    particular social group. Evidence showed authorities had little interest in domestic
    violence, and women were usually blamed. Women in similar situations did not
    receive state protection when solicited.

Fathi-Rad v. Canada (Secretary of State) (1994 FC)
i. Applicant arrested and detained for not wearing islamic dress in Iran.
ii. Held: a law which specifically targets the manner in which women dress may not
    properly be characterized, as it was in this case, as a law of general application which
    applies to all citizens.

Kochergo v. Canada (MEI 1994) (FC)
i. Mother born in Argentina, moves to USSR and then moves to Cuba. Claims refugee
    status.
ii. Held: a refugee claimant must establish that he is unable or unwilling to avail himself
    of all of his countries of nationality if his claim is to be upheld. In this case, there was
    no evidence that the mother had ceased to be a citizen of Argentina.

Urbanek v. Canada (MEI) (1992 FCA)
i. Purpose of refugee determination system is to provide a safe haven to those who
   genuinely need it and not to give a quick and convenient route to landed status for
   immigrants who cannot or will not obtain it in the usual way.


Orelien v. Canada (MEI) (1992 FCA)
i. Canada‘s obligations in the area of refugees stem from the 4th Geneva Convention of
    August 12, 1949 and protocol, both approved by Acts of Parliament, as well as
    customary norm of temporary refuge. These three have force of domestic law in
    Canada and can be enforced in the courts of Canada at the suit of a private individual.
ii. Canada can order deportation under Immigration Act, but Convention, protocol and
    customary norms of international law still have importance.


Hoang v. Canada (MEI) (1990 FCA)
i. Appellant ordered deported because of an offence that had imprisonment more than 6
    months.
ii. Deportation is not punishment of person deported but protection of those who
    remained for purposes of Charter.




                                               84
iii. Deportation for serious offences does not affect ss7 or 12 of Charter since it is not
     conceptualized as a deprivation of liberty or punishment.
iv. UN Convention has exception to refoulement where refugee convicted ―particularly
     serious crime‖ and is ―danger to community.‖ These are not defined.

Prata v. Canada (MMI) (1976 SCC)
i. Section 4(1) of the Act: citizens and PR have right to come into Canada… 4(2.1)
    Right of Convention Refugees: who are determined to be refugees, while lawfully in
    Canada, have a right to remain except….
ii. These provisions alter the Common Law: ―no alien had any right to enter the country
    except by leave of the Crown, and that the alien was liable to be sent home to his own
    country at any time it, in the opinion of the Crown, his presence in the country was
    not conducive to the public good.‖

Gervasoni v. Canada (MCI) (1996FCTD)
i. Applicant sought review of decision by Minister, where the Minister rendered an
    opinion under s46.01(e)(i.) of Act, that applicant constituted danger to the public.
ii. The decision is a discretionary administrative decision with minimal duty of fairness.
    No duty to provide reasons; applicant would have to show Minister acted in bad faith
    or erred in law. Minister can form opinion before or after adjudicator‘s decision.

Nguyen v. Canada (MEI 1993) (FCA)
i. Applicant is a PR, that is being deported via s27(1). Applicant claims refugee status,
     but representative of Minister tendered a certificate stating applicant was a danger to
     the public and thus (at time) not eligible for refugee status.
ii. Legislation which purports to define conditions for eligibility to claim refugee status
     may violate the Charter only if those conditions have the effect of subjecting a group
     of claimants to discriminatory treatment under meaning of s15. To deny dangerous
     criminals that right, is not a form of illegitimate discrimination.
iii. Minister does not need to state factors behind the certificate.
iv. The decision to issue a certificate is subject to judicial review by Court only and not
     by immigration officers on tribunal. No Charter infringement.

Bembenek v. Canada (MEI 1984) (IRB Adj Div)
i. 46.01(1)(e)(ii) fails to meet requirements of s7 of Charter; it does not provide for
   application of the principles of fundamental justice where an individual is denied the
   right to life, liberty or security of person. It makes no provision for a review, judicial
   or otherwise, of a decision of Ministry to issue a certificate. Section not saved by s1,
   adjudicator and Refugee Board member declined to give effect to subparagraph.

Canada (MEI) v. Agbasi (1993 FCTD)
i. Concept of fairness applied to make section no force and effect against respondent.
ii. Respondent in Canada on valid employment authorization; but became subject to a
    s27 report that he had employment contrary to the Act; his visa was not extended and




                                             85
     he then overstayed and a departure notice was issued against him. The original
     proceeding was unfounded.
iii. Respondent claims refugee status, to deny him access to Refugee Division pursuant to
     46.01(1)(f) (no longer in existence), would be contrary to s7 of Charter. Had visa been
     extended, would not have overstayed. Section of no force and effect to respondent.

Taei v. Canada (MEI) (1993 FCTD)
i. Applicant successful in gaining refugee status. Applies for landed-immigrant status
    under s46.04(3) of the Act. In meantime, applicant is charged with assualt, attempted
    murder… Applicant wants leave for JR to obtain order for respondent to process his
    application for landing.
ii. Held: presumption of innocence requires respondent to stay applicant‘s request for
    admission until charges are disposed of. It would be against public policy to proceed
    before. If acquitted, the respondent should proceed with granting admission, if
    convicted he will have disqualified himself.

Sivaguru v. Canada (MEI) (1992 FCA)
i. Appellant was a refugee claimant who testified he knew of no violence by his Tamil
     organization from 79-83. A Board member initiated his own request for information
     on that groups activities, and without disclosing to Regugee Hearing Officer or
     counsel, Board member contradicited appellant.
ii. Immigration and Refugee Board does not possess powers of Court. The are require to
     deal with proceedings as informally and expeditiously as the circumstances of fairness
     permit. S68(2) and (4)of Act.
iii. 68(4) allows Refugee division to take judicial notice of facts. But the Act does not
     permit a member of Board to embark upon a quest for evidence in this manner; the
     Board must act with impartiality (absence of bias, real or perceived); the search for
     evidence was secretly initiated and tenor of questions was for devastating effect.
     Board member should have put misgivings about evidence to the hearing and then
     decided upon a course of action known to all.

Siad v. Canada (Sec of State) (1996 FCA)
i. Refugee claimant found to have well founded fear of persecution if returned to
     Somalia but excluded from refugee protection because of evidence of crimes against
     humanity. Minister‘s representative intervenes and calls 2 witnesses.
ii. A high standard of natural justice applies in cases where the Minister takes an
     adversarial position in refugee claimants. 69.1(5) of Act, requires that tribunal affors
     claimant reasonable opportunity to present evidence, cross-examine witnesses and
     make representations (Stinchcombe does not apply but is instructive).
iii. Trial decisions exclusion of professor‘s report was wrong  68(3) of the Act, relieves
     tibunal of legal and ethical rules of evidence. It was relevant. Counsel had opportunity
     to cross-examine, call rebuttal evidence, make submissions as to weight…

Ousman v. Canada (MCI) (1995 FC)
i. Applicant for refugee status receives package of materials relating to Guyana at hearing.


                                             86
This was not timely disclosure. Unreasonable to expect applicant to comprehend material
during the course of the hearing. Board should adjourn and allow applicant time to
consider documentary evidence.
ii. Follows Cardinal v. Kent Institution: denial of a fair hearing must always render a
    decision invalid.

Canada (MCI) v. Patel (1995 FC)
i. Appeal Division halted cross-examination of respondent on line of questioning.
ii. Held: curtailing of x-examination had resulted in a breach of the rules of natural
    justice and following Cardinal held denial of fair hearing must always render a
    decision invalid, whether or not it may appear to reviewing Court that the hearing
    would have resulted in a different decision.

Castroman v. Canada (Sect of State) (1994)
i. Refugee Hearing Officer questions applicant about information in the Personal
     Information Form. Counsel claims solicitor-client privilege, Board allowed questions
     and counsel withdraws.
ii. It is not proper for lawyer to interfere with RHO‘s questioning of PIF, the client
     cannot be shielded from ommissions/ inconsistencies in PIF via privilege. This is how
     credibility is tested.
iii. Counsel is not at liberty to leave a client in the middle of a case simply because he
     doesn‘t agree with administrative ruling. Rather make objections and then take
     whatever proceedings are required.
iv. Not all decisions to proceed without providing applicant benefit of counsel will result
     in reviewable error. But here Board did not exercise discretion in disallowing counsel
     properly within Howard v. Stony Mountain Institution (1984 FCA); there was denial
     of natural justice and application for JR allowed.

Yusuf v. Canada (MEI) (1992 FCA)
i. Members of Refugee Division have the right to cross-examination witnesses they
    hear.
ii. But: Courts can look at tone and content of questions to determine if limits had been
    exceeded such that the judge loses cloak of impartiality and his decision cannot stand.
    In this case observation by one member was sexist, unwarranted and irrelevant.
    Appeal allowed decision denying refugee status was set aside and sent back to another
    quorum of the Refugee Division.

Rajaratnam v Canada (MEI 1991) (FCA)
i. Board member during course of hearing questioned applicant on an extensive basis
    and explored areas which counsel and Refugee Hearing Officer had already explored.
ii. Held: Board member ceased to be judge and became advocate: A judge who observes
    the demenaour of witness is a better judge of credibility then one who jumps into the
    fray; in doing so a judge deprives of calm and dispassionate observations. The
    demenaour of witness will ge when judge not counsel is questioning (and is
    prolonged and covers crucial matters in issue).


                                            87
iii. When this happens it is open to appellate court to find that the view of the trial judge
     as to demeanour of the witness was ill-founded--appeal allowed and sent back to
     Refugee Division to redecide.

Bamlaku v. Canada (MCI 1998) (FCTD)
i. Applicant excluded from refugee protection under sect F(a) of Convention (crime
against peace, humanity…) On the facts, applicant turned people into security forces who
were then tortured, his reasons were mixed- enemies of state and possible terrorists.
ii. Held: applicant in informing was not motivated by humanitarian considerations alone,
    there were reasons for it to fall under section F and thus decision was not reviewable.

Pushpanathan v. Canada (MEI 1998) (SCC)
i. Permenant resident from Sri Lanka, was charged with conspiracy to traffic in heroine.
    Deportation order issued, but appellant applies for refugee status. Issue becomes
    whether appellant qualified under F(c ) ―has been guilty of acts contrary to the
    purposes and principles of the United Nations‖ in the Convention.
ii. Held SCC: even though international trafficking of drugs is serious and UN has taken
    measures to eradicate, until there is an indication that the international community
    recognizes drug trafficking as a sufficiently serious and sustained violation of
    fundamental human rights as to amount to persecution either through a specific
    designation as an act contrary to principles of UN or through international instruments
    to indicate trafficking is a serious violation of human rights, then individuals should
    not be deprived of the essential protections in the Convention for having committed
    those acts.


Arica v. Canada (MEI 1995) FCA
i. Appellant denied refugee status because there were serious reasons suggesting he was
     involved in acts constituting crimes against humanity.
ii. Board not required to balance the nature of crimes committed by appellant against
     fate that awaits him should he be returned to Peru. (Gonzalez v Canada)
iii. Section 7 Charter does not alter decision-- a decision refusing claim to refugee status
     does not, by itself, imply or lead to any positive act which may affect the life, liberty
     or security of the person.


July 11, 2000




                                              88
INADMISSIBILITY: EXCLUSION AND REMOVAL                                  p. 124
I. There are 2 key questions regarding a person‘s admissibility to Canada:
       i. Are there admission concerns?
                   Selection requirements, H+C grounds as a refugee etc..
       ii. Are there Inadmissibility concerns? What are the requirements to get in.
               Categories who government has decided ought not to be admitted to
                  Canada. It is concerned with keeping people out who are inadmissible
                  = exclusion. If determined inadmissible they are excluded. If already in
                  Canada and are inadmissible they are removable.
II. Key Provisions:
        Section 19:Inadmissible Persons: is focused on exclusion.
            19(1): BIG TICKET ITEMS no person shall be granted admission
              (recall: s.2(1) admission= entry or landing---therefore, visitors and persons
              seeking to immigrate) who is a member of any of the following classes:
              [bars visitors and immigrants]
                  (a) persons who are suffering from any disease, disorder, disability or
                       other health impairment as a result of the nature, severity or
                       probable duration of which, in the opinion of a medical officer
                       concurred in by at least one other medical officer, (s. 22
                       Regulations ties in to both of these sections Ismalili v. Canada
                       Minister of Citizenship & Immigration) (1995) (Fed.T.D.) very
                       clear law, sound case. held that s. 114(1)(m) only applies to (i), so
                       the factors set out in the regulations (s.22) do not have to be
                       considered with respect to (ii), but they can be)
                           (i) they are or likely to be a danger to public health or to public
                                safety, or (communicable disease, plague….not a lot of case
                                law in this area)
                           (ii) their admission would cause or might reasonably be
                                expected to cause excessive demands on health or social
                                services. (bulk of the cases are in this area:
                           note: p. 125 ―Proposed Amendment‖ 19(1)(a) this section has
                           been enacted, but for 8 years has not come into force and this
                           may be due to the fact that the government can not decide what
                           health services is as opposed to social services, what
                           ―excessive‖ demand is…..
                       Thangarajan v. Canada (Min. of Citizenship & Imm) (1998)
                       (Fed.C.A.) (p. 129) held: special education provided for mentally
                       challenged children within the public school system is not a social
                       service within the meaning of paragraph 19(1)(a)(ii). The fact that
                       health services are considered to be distinct from social services
                       indicates that education, including specialized education, provided
                       within the school system, is also distinct. EXAM HINT! this case
                       drastically changed the law and old exams and marking guides will
                       not reflect this change.



                                             89
            Rudrakumar v. Canada (Min. of Citizenship & Immigration
            (1996) (Imm.&Ref.Bd.(App.Div.)) (p. 134) held: the Appeal
            Division may not question the correctness of a medical
            diagnosis, but it does not have the authority to inquire into the
            reasonablenessof the conclusion of the medical officers.
     Medical Inadmissibility: under s11 all immigrants and visitors
        (according to s. 21 of the regulations, from certain countries) have
        to have a medical examination. The MD sees the applicant and
        rates his health. The visa officer the determines if medically
        inadmissible. In certain countries only prescribed MDs are valid
        for check up. MDs state whether person would cause excessive
        demands on health care.
        - 21, 22 Regs. 21-outlines the classes of persons to undergo
            medical exams 22- factors to consider in determining
            ―reasonable expectation of excessive demands‖ on health care.
 two completely different lines of case:
(1) sponsored immigrant/member of the family class?
 judicial review is available if there is an admissibility problem; and
    the prospective sponsor, under s. 77, has a route through the appeal
    division, on humanitarian and compassionate grounds
(2) an immigrant, him or herself, overseas, seeking to immigrate
    themselves?
 if there is an admissibility problem, what legal means of appeal does
    this prospective immigrant have? The only route is an application in
    Federal Court for judicial review (of course, they would have to hire
    Canadian counsel).
    (b) persons who there are reasonable grounds to believe are ,or will be,
        unable or unwilling to support themselves and those persons who
        are dependent on them for care and support, except persons who
        have satisfied an immigration officer that adequate arrangements,
        other than those that involve social assistance, have been made for
        their care and support;
     visa officers will consider whether persons are unable to support
        themselves or their dependants. If you are sponsored, skilled
        worker, or refugee this section does not apply.
    (c) persons who have been convicted in Canada of an offence that may
        be punishable under any Act of Parliament by a max. term of
        imprisonment of 10 years or more.
    (d) persons who there are reasonable grounds to believe will (i.)
        commit one or more offences that may be punishable under any
        Act of Parliament… CRYSTAL BALL! (ii) engage in activity that
        is part of a pattern of criminal activity planned and organized by a
        number of persons…
     Crystal ball provisions.



                             90
                Jolly v. Canada (MMI) p. 158 : A U.S. citizen wants to
                   immigrate who is a card-carrying, non-violent Black Panther
                   (there was absolutely no evidence that he was violent).
                   Government said there were reasonable grounds to believe he
                   would engage in criminal acts. Federal Court: found as a fact
                   he was not likely to engage in criminal activity but fact that he
                   was a BP was enough to give Minister reasonable grounds to
                   believe that Jolly would commit criminal acts. So, there must
                   be some evidence to establish reasonable grounds to believe
                   that the prospective immigrant will commit criminal
                   acts…that‘s enough. This case illustrates that there is a high
                   level of discretion for government, deference given to Minister.
                Yamani v. Canada (Solicitor General) 1995 (p. 158)
      3 chunks: (1) people who have committed offences; (2) people who are
       likely to commit offences; (3) people who are rehabilitated

 19(2) SMALLER TICKET ITEMS no immigrant (sub (3) does not apply to
  immigrants, because immigrants are held to a way higher standard because
  they want to stay here) and, except as provided in sub(3), no visitor shall be
  granted admission if the immigrant or visitor is a member of an of the
  following classes:
          lesser grounds of criminality
          Even a minor conviction can bar admission.
          114(2) don‘t have to hold this against them
 19(3) Discretionary Grant of Entry- a senior immigration officer or
  adjudicator, as the case may be, may grant entry to any person who is a
  member of an inadmissible class described in sub(2) subject to such terms and
  conditions as the officer or adjudicator deems appropriate and for a period not
  exceeding 30 days, where, in the opinion of the officer or adjudicator, the
  purpose for which entry is sought justifies admission.
       a person can be admitted on conditions.
              Can use 114(2) Act: to facilitate admission
              Can use 37(1) Act: to facilitate entry.

 Section 27: Removal After Admission: is focused on removal but not just
  those who have been ―admitted‖ but visitors too.
       27(1) an immigration officer or a peace officer shall forward a written
         report to the Deputy Minister setting out the details of any information
         in the possession of the immigration officer or peace officer indicating
         that a permenant resident is a person who (a) is a member of an
         inadmissible class in paragraph 19(1)(c.2)(d)(e)(f)(g)(k)or (l) note
         19(1)(a)&(b) are not included…with respect to (a) medical
         inadmissibility it would be demeaninig to remove people who develop
         cancer while waiting for their passport; with respect to (b) unwilling
         and unable to support yourself social services to the rescue!


                                    91
               (a.1) outside Canada, (i.) convicted of offence…. (a.2) before being
               granted landing, was convicted in Canada of (i.) an indictable offence.. (b)
               contravened terms and conditions (if imposed) (d) convicted of an offence
               under Act of P.. for a term of which 6 months has or 5 years can be
               imposed….
                Removal of Permanent resident (lawfully admitted), most serious
                   grounds
                PR can appeal a removal order under 70(1) to the Appeal Division.
                27(2) removal of visitors and anyone other than Citizen or
                   Permanent resident who (a) member of inadmissible class (b) engaged
                   in employment contrary to Act (d) convicted of an offence under the
                   Criminal Code… (e) remains in Canada after ceasing to be a visitor….
                Less serious criminality for visitors can lead to removal. Easier to
                   remove, less commitment to Canada.
                19(1) is incorporated.

Chuu and Sagbad cases…..look at the syllabus for these rare cases that the SCC has
granted leave to; do all the circumstances include ―country conditions‖: possible harm
that can befallen upon removal….these cases have not been argued at this point

LOSS OF PERMENANT RESIDENT STATUS
I. ss 24, 25 and s26 Regs: outline the code for losing permanent resident status.
        24(1) : a person ceases to be a permanent resident when
                       (a) that person leaves or remains outside of Canada with the
                           intention of abandoning Canada as that person‘s place of
                           permanent residence; or
                       (b) a removal order has been made against that person and the
                           order is not quashed or its execution is not stayed pursuant to
                           73(1).
                Note a Canadian citizen or person registered under Indian Act can
                   leave Canada and intend to abandon it, but do not lose citizenship until
                   they formally revoke it.
        STARTING POINT: 24(2) where a permanent resident is outside Canada for
           more than 183 days in any one twelve month period, that person shall be
           deemed to have abandoned Canada as his place of permanent residence unless
           that person satisfies an immigration officer or an adjudicator, as the case may
           be, that he did not intend to abandon Canada as his place of permanent
           residence.
                A PR can lose status by intending to abandon Canada. If this is done
                   publicly, court may look at what you have said or done; they will also
                   consider if you have spouse, children or assets in Canada. In theory a
                   PR can remain out forever, but after 183 you have a burden to meet
                   and as time goes by it gets higher.




                                            92
         25- Return Residency Permits-(1) where a PR intends to leave Canada for
            any period of time or is outside Canada, that person may in prescribed manner
            make an application to an immigration officer for a returning resident permit.
                  must prove to immigration officer that you are not intending to
                    abandon Canada.
                  only do this if leaving for more than 183 days.
         25(2) Proof of Intention- possession by a person of a valid returning resident
            permit issued to that person pursuant to the regulations is, in the absence of
            evidence to the contrary, proof that the person did not leave or remain outside
            Canada with the intention of abandoning Canada as his place of permanent
            residence.
                  allows government to rebut presumption of no intention to abandon.
        - Regs 26-Returning Residency Permits- (1) PR may apply orally or writing to
an immigration officer for a return residency permit. (2) an immigration officer shall
subject to (3) issue a RRP where the following criteria are satisfied (c ) valid intentions:
government work, academics, accompanying family member, or any circumstances that
the immigration officer deems appropriate. (3) an immigration officer shall not issue an
RRP if reasonable grounds to believe person will cease to be a PR under 24(1) of the Act.
(4) an immigration officer may issue a RRP (a) valid for 12 months or (b) with the
approval of a senior immigration officer, valid for not exceeding 24 months.




                                            93
GUEST SPEAKERS

(1) Betty Miller, Anglican Church of Canada, Victoria. : Refugee Resettlement,
    Kosovar Resettlement in Victoria

History of Resettlement
1. Post WWII: Eastern Europeans, 1.5 million, flood into Western Europe and were held
   in camps. They were not locally integrated because W.Europe was devastated. As
   Cold War starts Western nations sign the UN Convention on Status of Refugees. The
   idea was to write a noble document and use it to embarrass Communist countries by
   making it impossible for them to live up to it and by resettling their refugees.
2. UN High Commissioner for Refugees established in 1951, as a temporary office,
   which to this day has to be renewed. Note there is not Commission, there is a High
   Commission, Office of High Commission, and Executive Commission.
3. 3 options were discussed by UN High Commission to deal with E.Europe‘s refugees:
       i. repatriation (to communist countries)
       ii. local integration (in devastated W Europe)
       iii. permanent resettlement (elsewhere)
        The first 2 options were ignored; the third option was pursued but the recipient
            nations were Canada, U.S., Australia and New Zealand.
4. Canada: allowed permanent resettlement but it did not bring in ―refugees‖ under the
   Convention refugee category it used the ―designated classes‖ category to bring them
   in. Most of the resettlement came from E Europe and SE Asian communist countries.
   Canada differed from the U.S., in that it had an additional program for refugees from
   right-wing Central American dictatorships. But this was the exception.
5. Post 1989- the purpose of resettlement ended with end of Cold War. Canada became
   quickly anti-refugee.
       a. The refugee crises had shifted to Africa, Iran, Iraq, Afghanistan (5 million
            refugees alone).
       b. The UNHCR undergoes discussion with resettlement countries and W
            Europe. European countries were not interested in resettlement; their
            obligations as signatories to the Convention only required that they ―hear‖
            claims made by those who arrive not that they actually ―resettle‖ from abroad.
       c. Canada, US, NZ  pushed use of Convention‘s real definition; wanted the
            active resettlement of 2 types
                (1) protection cases: not safe where you are;
                (2) Close family ties in a Convention signatory nation.
6. 1997(?)- Forma UN Resettlement Policy: emphasis placed on vulnerable groups to be
   resettled, such as women, children, medical conditions, disabled. This policy was
   used to exert pressure on members to implement.

Kosovar Resettlement
1. UNHCR  demonstrates a change in philosophy regarding resettlement. Tries to
   manage the crises from inside and prevent the refugee flows. Support NATO
   bombing; place camps near border; return refugees shortly to their homes; idea is to


                                           94
   manage the flow and repatriate as quick as possible to prevent long term care.
   UNHCR only asked for resettlement to Canada, US when burden on refugee camps
   became too much. US considered keeping away from US soil in Guatanamo Bay and
   Australia enacted law preventing ability to stay point was to make repatriation a
   priority. This was the same method used in Iraq with the Kurds, enforce a no-fly zone
   to keep potential refugees at home. Bosnia create sectors for refugees to live.
   Somalia keep out of Kenya.
        this contrasts with the previous philosophy, which was to operate outside of
           war zones (only the Red Cross went inside).
        The UNHCR does not even have a mandate to go inside. Essentially, the
           message is that if you violate human rights your soverignty will not be
           respected.
2. The UNHCR was also against the division of Kosovo, because in Bosnia the division
   by ethnicity meant that many could not return to their homes (because it was in
   another zone, they had a mixed family, etc.) leaving a surplus of refugees.

Canada Resettlement Programs
1. 2 main programs for resettlement: government and private.
      i. 1976: ―Refugee Resettlement‖: from WWII-1978: some private sponsorships
          were allowed, Jews from Europe (informally) But E Europeans who wanted to
          sponsor friends and family under government program (was hard b/c
          government chose refugees) were having difficulty.
      ii. 1976 Act private sponsorship allowed, meant to be 10% of total; required 5
          PR or citizens to sponsor. At the time of implementation had the refugee fall
          out from SE Asia (Cambodia, Vietnam, Laos); Churches encourage public to
          sponsor and government had policy that it would sponsor 1 for every 1 of
          private sector. In total about 20,000 privately-sponsored by 1979-80 (exceeds
          expectation of 6,000) thus 40,000 total. This surge died quickly to about
          10,000 governement and 2-3,000 private; at end of CW it rose again as E
          Europeans started to be able to leave. Many Poles came through at this time;
          resettlement hit 20,000. But shortly thereafter, the ―designated class‖ category
          was closed and the numbers dropped:

       Government resettlement:
       1979            20,000
       1989            12-13,000
       1999            7,300 (already) b/c of Kosovar crisis; on average government
       spend 44 million; in 1999 it has spend $200 million.
2. Government sponsors persons at welfare rate up to 24 months, introduce to language
   and job training.
3. Private : church will put in apartment and give allowance; or relative will usually stay
   with family until find jobs.




                                            95
4. Kosovar Refugees: have different expectations than previous refugees (SE Asians);
   they are educated. Majority will return; UN has called for persons with
   technical/engineering degrees to return to rebuild.
5. Canada took around 7,000 refugees under Minister‘s permits. 2 programs were
   initiated:
        I. Operation Parasol/Sustainment  5,000 put on bases
        II. Fastrack  2,000 refugee who had close family members in Canada, or were
            protection cases (overly traumatized, hunted by Serbs)
         In Victoria, took a few fastrack refugees who had families; some are starting
            to leave while others are still arriving.
6. The resettlement program was too big to be done this quickly; 7,300 per year- did
   5,000 in a few weeks, with no increase in staff.

Canadian Law
1. post WWII, rare use of Refugee definition, refugees brought in from E Europe, SE
   Asia and C America under designated classes.
      a. SE Asia  at start anyone could be resettled, but then a ―Comprehensive Plan
          of Action‖ was created where refugee outflow states, such as HK, would
          screen them, limiting the ones that could go on to Canada.
      b. C America Canada had a unique (and praised) policy of resettling from
          inside the refugee‘s own country. Chile, El Salvador, Nicaragua, Guatemala
          had this opportunity. Aim to help ―PPOP‖ political prisoner and oppressed
          persons. Praised because the most in danger were those who could not leave
          their countries.
2. Currently:
      i. Country of Asylum Class: outside country of origin, fleeing mass violations/
          civil war, don‘t have to prove individual persecution.
      ii. Source Country Class: can be taken from country of origin; but cannot process
          people from inside unless there are officers there.

3. Canadian Law:
          Section 6(3) Act [Selection of Immigrants] Displaced and Persecuted- any
             Convention refugee and any person who is a member of a class designated
             by the GinC as a class, the admission of members of which would be in
             accordance with Canada‘s humanitarian tradition with respect to the
             displaced and persecuted, may be granted admission, subject to such
             regulations as may be established w.r.thereto and to the immigration plan
             currently in force and notwithstanding any other regs made under this Act.
          Humanitarian Designated Classes Regulations (803)
              Definitions s1 ―member of the country of asylum class” means an
                 immigrant, other than a person whose case has been rejected in
                 accordance with the Comprehensive Plan of Action adopted by the
                 International Conference on Indo-Chinese Refugees in 1989, (a) who
                 has left the immigrants country of citizenship or of habitual residence;
                 (b) who has been and continues to be seriously and personally affected


                                           96
            by civil war or armed conflict or a massive violation of human rights
            in the immigrants‘ country of citizenship or of habitual residence; (c
            )in respect of whom there is no possibility, within a reasonable period,
            of a durable solution; (d) in respect of whom a determination has been
            made under paragraph 4(1)(b); and (e) who is outside Canada and is
            seeking admission to Canada for the purpose of resettling in Canada.
         Definitions s1 ―member of the source country class” means an
            immigrant
                (a)who is residing in the immigrant‘s country of citizenship of of
                habitual residence, where the immigrant‘s country of citizenship or
                of habitual residence is a source country set out in the schedule;
                    (b) who
                            (i.) is being seriously and personally affected by civil or
                                 armed conflict in the immigrant‘s country of
                                 citizenship or habitual residence,
                            (ii.) as a direct result of acts committed outside Canada
                                 that in Canada would be considered a legitimate
                                 expression of free thought or a legitimate exercise
                                 of civil rights pertaining to dissent or to trade union
                                 activity,
                                     (A) is being or has been detained or imprisoned
                                          in that country with or without charge or
                                     (B) is being or has been subjected to some other
                                          recurring form of penal control, or
                            (iii) by reason of a well founded fear of persecution for
                                 reasons of race, religion, nationality, political
                                 opinion or membership in a particular social group
                                 is unable or, by reason of such fear, unwilling to
                                 avail himself of the protection of the immigrant‘s
                                 country of citizenship or of habitual residence;
                    (c) in respect of whom there is no possibility, within a
                        reasonable period, of a durable solution;
                    (d) in respect of whom a determination has been made under
                        para 4(1)(b) and
                    (e) who is seeking admission to Canada for the purpose of
                        resettling in Canada.
   Schedule I: Source Countries: Bosnia-Herzegovina, Cambodia, Colombia,
    Croatia, El Salvador, Guatemala, Liberia, Sudan. (Updated yearly, now
    Congo, Syria (?))
   Regs s2: The following classes of persons are designated as classes of persons
    for the purposes of subsection 6(3) of the Act: (a) the country of asylum class;
    and (b) the source country class.
   Regs s4: sets out admission requirements for persons of these 2 classes.
   Regs s5: sets out the sponsorship requirements for members of these 2 classes.




                                      97
3. Critique of Canada‘s policy: there is no political will to resettle persons from Africa;
   in the U.S. the strong black caucus in Congress (15%) have ensured that a large part
   of resettlement in from Africa. Canada only has 4 visa posts in Africa, refugee can
   only be processed by a full officer. Officer as supposed to tour around, but they don‘t
   move as quickly as they are supposed to. In Narobi it is a 2 year wait to get an
   interview. Moreover, Canada moved its post from Rome to France, which makes it
   harder for Africans to access a Canadian officer if they do reach Europe.




                                            98
Kurt Neuenfeldt, Member, Convention Refugee Determination Division,
Immigration and Refugee Board, Vancouver

PRACTICE AND PROCEDURE IN THE CONVENTION REFUGEE
DETERMINATION DIVISION

1. Current Refugee Situation: source countries change on regular basis. Current
   countries housing refugees are Yugoslavia; Iran and Pakistan (from Afghanistan);
   Africa. Most persons do not want to leave the area.
      a. Canada takes in very few claimants, around 22-30,000 per year. In
           comparison, FRG took in more in a month in early 1990s, it is country 1/3 the
           size of BC, and only 85 million people. Did lead to social dislocation and
           tightening of asylum laws; EU in general is tightening laws.
      b. Geography: determines type of refugee claimants. Canada receives them from
           the U.S.  by ―foot‖ which means they came from Central or South America
           or else they fly in. Those that fly here, clearly have some ―means.‖ Typically,
           the central/south american refugees are poorer on average.
      c. Economic Migration/ Migration from Natural Disasters: is a major source of
           ―refugees.‖ Hurricaine Mitch (?) in Honduras (1998?), led to a mass
           migration, unfortunately, this does not lead to a strong refugee claim.
           Economic collapse in Mexico, Brazil and Russia have forced movements to
           Canada.
2. Immigration and Refugee Board (IRB): has 3 divisions. Mr Neuenfeldt only hears
   Refugee claims, and makes all decisions on the basis of Convention Refugee Division
      i. The IRB has no H + C relief.
      ii. The IRB‘s discretion is found under section 2(3) of the Immigration Act:
                Exception - A person does not cease to be a Convention refugee by
                   virtue of paragraph (2)(e) if the person establishes that there are
                   compelling reasons arising out of any previous persecution for refusing
                   to avail himself of the protection of the country that the person left, or
                   outside of which the person remained, by reason of fear of persecution.
                2(e) refers to the reason for persecution in a country ceasing to exist.
                   The exception comes into play when a person was ―badly‖ tortured in
                   home country; probably need more than a mere beating (which is
                   common place).
      iii. Schedule - Sections E and F of Article 1 of the United Nations Convention
           Relating to the Status of Refugees
               E. This Convention shall not apply to a person who is recognized by the
                   competent authorities of the country in which he has taken residence as
                   having the rights and obligations which are attached to the possession
                   of the nationality of that country.
               F. The provisions of this Convention shall not apply to any person with
                   respect to whom there are serious reasons for considering that:
                       (a) he has committed a crime against peace, a war crime, or a
                           crime against humanity, as defined in the international


                                             99
                             instruments drawn up to make provision in respect of such
                             crimes;
                         (b) he has committed a serious non-political crime outside the
                             country of refuge prior to his admission to that country as a
                             refugee;
                         (c) he has been guilty of acts contrary to the purposes and
                             principles of the United Nations.
                  * Being convicted of drug dealing, while in Canada does not negate
                     claiming refugee status. (Honduran refugees?); this was not what UN
                     Convention was trying to get at in Section F. (See other case law on
                     this)>
                  Refugees, however, that may have been involved in war crimes but
                     were the losers of the outcome, do not qualify as refugees under
                     Section F (a). No need to balance the crime committed against possible
                     endangerment he would be in upon return.
iv. Ground 4: ―Membership in a Social Group‖ : has been developed to catch a broad
    array of persons: victims of domestic abuse, children who have been abused; sexual
    orientation; 1 child policy -- facing forced sterlization. In U.S. domestic violence has
    been rejected as a ground, but it is very common in Canada, with around 50% of
    female claimants claiming domestic abuse.
v. Post Determination Risk Reviews: is an extension of the IRB‘s authority; may find
    real risk of injury or harm to a claimant that does not qualify as a refugee. An
    administrative decision can be made by civil servants in Ministry to allow them to
    stay (?).

3. Hearings
     a. 2 members shall be present unless claimant and lawyer consents to having 1
         member.
     b. In Vancouver, 1 member is the norm; although having more than 1 has its
         advantages in that if 1 person determines a person is a refugee that person is
         allowed in.
     c. 17 members of Refugee Determination Determination; 16 members of appeal
         division; 2 members of adjudication division (?). Largest administrative
         tribunal in country with 150-200 members.
     d. An important source of information during the hearing is the Personal
         Information Form (PIF); all claimants must fill out PIF which asks a series of
         narrative questions about why person thinks she is a refugee. The hearing will
         not commence until PIF is completed.
     e. Members are free to question as much as they want on the form.
     f. Ministry of Citizenship & Immigration can intervene if there is a concern
         about crimes committed by claimant, at which point the hearing becomes
         inquisitorial.
     g. Typically, those present in hearing are Member, Claimant, Claimant‘s lawyer
         and Interpreter. Hearing are expected to last ½ a day (3.5 hours). Members
         hear about 3 weeks of hearings and then write decisions for 1 week.


                                            100
       h. Rule of Evidence: do not really operate; Act precludes the use of rules of
          evidence. Admitting evidence not hard, but getting weight put on it can be.
               Hearsay: is allowed, simply because all literature, news, magazines
                 will be hearsay. Similarly, the claimant‘s information about the
                 situation in her country will be 2nd hand. A member cannot know the
                 politics of all countries and so must read literature.
               Section 9 Federal Court Act (9) (???) anything a claimant presents an
                 IRB member must read.

4. Preparing Client for a Hearing
      i. Must be considerate. You may be first lawyer that person has ever met. Will
           need to work through interpreters. Do not use relatives; use professionals;
           don‘t use interpreter that may antagonize client (a Serbian with Croatian client
           or women for some men). Need to create a trust relationship.
      ii. Clients will not understand the process/system. They will be trying to figure
           out whether they can trust you, they will be naturally suspicious because the
           state is paying for their lawyer (they may equate state with persecution). For
           this reason, do not rely to heavily on 1st interview as the claimant will likely
           leave out details. Conversely, they may be afraid of you or confused, and just
           tell you what you want to hear. Be sensitive to what acts have been committed
           against them, ie sexual assault victim may not be best suited with a male
           lawyer.
      iii. Be aware of level of education and ability to read and write in own language.
      iv. Chronology: is important, must put story in a chronology claimant
           understands; do not have conflicting dates (will be a source of questioning at
           hearing), if dates are unsure just state that and may be acceptable because of
           trauma.
      v. PIF: ensure that it is complete, put it in language of client and in proper
           vocabulary because interpreter should not be expected to adjust to education
           level.
      vi. Spontaneity is critical in assessing credibility of claimant.
      vii. Transliteration should be done carefully as some cultures operate under
           different presumptions (people are up at night, sleep at day; in Iran there are 3
           calendars)
      viii. Counsel for claimant can object to any question posed by the IRB member,
           Refugee Claims Officer, or Minister‘s representative. When objection is made,
           IRB member will listen and the consult with others (if present) and then rule.
                        Refugee Claims Officer: assist in inquisition; makes sure panel
                           considers all sides of claim; b/c claimant has a lawyer the RCO
                           often takes an advocacy position against claimant. RCO has
                           greater ability to research and often the information the submit
                           will be filed with panel in lieu of attendance.
                        Minister‘s representative: only job is to disprove refugee claim
                           generally on concerns of crimes committed.



                                            101
        ix. Time Frames: claimant has 60 days to fill in PIF, 6 months to receive hearing
            and then 60 days until decision. Children and persons in custody given
            priority.

         x. The Key Consideration: is whether you believe the claimant; you should test
             their story and inaccuracies before they go before CRDD panel. Examine
             documents, forgeries are common.
4.   Assessment of Credibility: at a hearing the best test is spontaneity. Some claimants
     are so nervous they come across as wooden. Much of this is cultural, must prime
     client on how to act and how to treat woman panel member, etc. Member must make
     assessment of credibility and will put discrepancies to the claimant. If claimant
     appears to be lying, then not going to care what real story is. Or member may reject a
     portion of claim and still accept as a refugee.
          Neuenfeldt claims about a 25% acceptance rate for refugees (this may be just
             the Vancouver office‘s rate).
5.   Note on dealing with Clients: stories can be very compelling, try to maintain
     professionalism and distance from client, because emotional lawyers frequently do
     not represent their clients well, and may not end in happy conclusion.
6.   Refugee Consultants: are not lawyers, do not have solicitor-client privilege -- which
     means member can put more questions to a claimant represented by consultant that
     when lawyer is present.
7.   Social Group Refugee ground: should be used last (as a catch-all) after other grounds
     tried.




                                            102
Elizabeth Adjin-Tettey, UVic Faculty of Law
Current Issues in Refugee Protection From an International Law Perspective

1. Background
A. State Sovereignty: Charter of United Nations, Art. 2(1): is premised on respect for
   state sovereignty; every state is autonomous; recognizes every state has right to
   control aliens, their entry and on what terms. This is the sovereign right of any state
   which is not compromised by being a member of the UN.
B. State Immigration Laws: every state has immigration laws to control movement of
   aliens. Even EU, has strong outside barriers.
C. Right to Seek and Enjoy Asylum: right is protected under Universal Declaration of
   Human Rights, 1948, Art. 14; if you should be forcibly displaced from homeland you
   can seek asylum.
 Is there conflict between the international law right to state sovereignty and right to
   seek and enjoy asylum? No, the right to seek asylum does not override state
   sovereignty.
D. Post WWII: people needed asylum, international community adopted a framework to
   determine what persons are deserving of status…led to 1951 UN Convention Relating
   to the Status of Refugees. 133 States are party to this convention. Defines who is a
   refugee; how denial of human rights triggers status. It is a tool for states to determine
   refugees status. Aim was not to compromise state sovereignty.
E. UN Convention, was meant to provide temporary protection for refugees who were
   meant to return once conflict was over.

2. How System Currently Works: there are 2 forms of protection
     i. In Situ (In-Country) protection: rather than refugees seeking protection in
         another country, the international community tries to provide protection within
         their own country. Examples:
                      NATO: prior to bombing Yugoslavia, tried protective
                         diplomacy, to ensure Kosovars could stay there.
                      Bosnia: had safe havens.
                      Iraq: safe havens for Kurds in Northern Iraq.
                      Somalia.
              Helps to further right of refugees in homeland; logic is why not try to
                 get them to remain seeing as they will only be returned anyway.
              Volunteer repatriation is the ideal outcome of a refugee crisis (as we
                 are seeing in Kosovo today).
              In situ is supported because international law of alienage only applies
                 to refugees who make it over the border. Those that are internally
                 displaced do not have the same rights (and they may only be meters
                 away from other refugees). Leads to an arbitrary result. In - country
                 protection recognizes the need to protect all refugees.
              For Country of Origin, in-country protection prevents the mass outflow
                 of persons (many of whom may be critical to running country).



                                            103
ii. Critique of In-Situ Protection
         a. Self - interest: of international community drives this approach. Keeps
             refugees from destablizing regions, coming to their own countries. Ex.
             NATO bombing actually increased the amount of refugees in Kosovo.
             After bombing there has been a reverse outflow of Serbians. UN
             putting safe haven in northern Iraq for Kurds is aimed at preventing the
             Kurds from flowing into Turkey.
         b. Violation of International Law: possible violation of state
             sovereignty. Violates 2(4) of the UN Charter; 2(7) of UN Charter
             states that organization should not interfere with internal situation.
             Yugoslavia has started action before World Court; an application for
             order to stop the bombing was dismissed-- an interim injunction was
             dismissed on basis of jurisdictional reasons but Court held that would
             not effect substantive decision on merits of case. Case continues, and
             W.C. has ordered submissions from all parties. Yugoslavia is asking
             the Court to declare NATO in violation of international obligations
             and hold responsible for destruction and suffering.
         c. May prevent At-Risk population from leaving to safety: those who
             leave may be denied claims abroad because the did not avail
             themselves of the safe haven (IFA).
                   In country protection may violate right to seek asylum, may not
                      further the interest of those who seek asylum.
iii. Temporary Protection:
[Many countries do not want refugees at all. If no-inland protection, they may be
faced with refugees at their door. Will set up visa restrictions and carrier
restrictions to prevent them from arriving. Canada has both of these:
          Visas were reinstated on arrivals from Czech Republic in October
             1997 after a much publicized number of gypsies claiming refugee
             status arrived.
          1992 Amendments to Immigration Act added carrier restrictions on
             transportation companies obligated to check passenger documents,
             must return person if not diligent…
     a. Temporary Protection: is the ―new old way‖ of dealing with immigrants to
         satisfy international community. The aim is to keep refugees as near to
         homeland as possible; Kosovo being a good example: Macedonia, Albania
         as primary holding areas. This is how UN intended refugees to work.
     b. Previously, refugees were recruited from Communist countries, and were
         not considered temporary because the Cold War was not considered likely
         to end. Moreover, countries wanted to make a political point and wanted
         their labour.
     iv. Critique of Temporary Protections
a. Emphasis remains on temporary protection
          What is temporary? Nations are hesitant to admit on this basis because
             conflicts can drag on for years.
         


                                    104
          b. Non-Refoulement: Art. 33 UN Charter; s53 of Immigration Act: where a
              person who is determined to be a Convention refugee cannot be returned
              to country where life or freedom would be threatened on basis of race,
              religion, nationality, membership in a particular social group, or political
              opinion unless..
                       This principles ties the hand of asylum states from returning
                          persons and reduces support for accepting refugee claimaints.
                          Ex. FRG after 5 years of temporary protection, wanted to return
                          Bosnian refugees but were critiqued by UN…
       c. Anti-Refugee attitudes of states a function of neo-liberalism where
          governments are reducing support for individuals. Must take care of
          themselves; this general attitude can be linked to refugee systems  a poll of
          Canadians supported NATO action, but not the protection of refugees through
          resettlement. Canadians find it hard to justify spending $ on refugees when
          social assistance reduced for their own.
       d. Employment Rights: UN Convention (?)Art. 17: under principle of
          refoulement: contracting states are obligated to grant refugees lawfully within
          country same rights to employment as citizens; 17(2): if a person resident for 3
          years or has a child, state is not impose restrictions on them as they would on
          an alien. Applies to all refugees whether there permanently or temporarily;
          object to help refugee integrate faster.
           Restricts state‘s ability to choose refugees on basis of skills. Elected
              leaders will be wary of the lack of employment and allowing refugees to
              enter.
       e. Social Assistance Rights: Art 23 of UN Convention (?): must treat refugees
          in same ways as you would your own nationals. Underscored by UN HCR.

 Thesis: social and economic obligations of Western (?) states currently influence the
  type of refugee system that arises (the in-situ system).
 Canada: in 1997 54% of refugee applicants were successful. However, the number of
  persons that get to Canada is small compared to world‘s refugee population; statistics
  do not take into account all the internally displaced persons and persons who cannot
  afford to get here…
 Most of world‘s refugees, 4 million out of 14.5 million, are in Africa, and don‘t get
  much resources (Organaization for African Unity gets v. little (?)); so it is absurd to
  expect the refugee intake states to be able to extend employment and social assistance
  to refugees.




                                          105
JAMES NORRIS- IMMIGRATION ADVISER: IMMIGRANT VISA
APPLICATION PROCESS AND BUSINESS IMMIGRATION

1. How Citizenship and Immigration Canada works: Immigration and Refugee
   Board
a. Domestic Delivery Network:
      i. Call Centre: visa officers are not always available so in attempt to cut costs
           and modernize dealings with CIC, a call centre has been established (3 years
           ago).
      ii. 3 Major Case Processing Centres: in Vegreville, Mississauga and Sydney NS.
                Vegreville deals with immigration cases
                Mississauga deals mostly with family class sponsorships. If approved
                   then forwarded overseas
                Sydney deals with citizenship application. There is about an 8-10
                   month waiting period, or about 14-15 month period in total for
                   citizenship to be dealt with.
      iii. Local immigration centres: (have been reduced by ½ in 5 years): will follow
           up in local communities; the case processing centres may send a file to a local
           immigration centre to interview etc.
      iv. National Headquarters and Regional Headquarters: 2000 person
           bureaucracies. Handle questions of a more general nature.
 Overall, the delivery of services has improved, with greater standardization.

b. Overseas Visa Offices
      i. There are 70 visa offices which are located in Canadian Embassies, High
           Commissions and Consulates. The offices have suffered from staff cutbacks,
           large number of applications all part of recent effort to balance budget.
      ii. Staffed by a combination of Canadian foreign service officers and locally-
           engaged staff. (About ½ are Canadian FSOs). The locally-engaged staff are
           locally trained, not Canadian citizens, may be offered by host country (like
           China). Many feel these staff do not make quality decisions, do not have
           Canada‘s best interest in mind, no attachment to Canada….
      iii. There are some large intake centres overseas. Ex. Buffalo, NY. Which does
           preliminary applications for merit and then interview at satellite office. Some
           positive benefits such as useful instruction about what documents are required.
           Human element has been taken out the process.
      iv. Fees-- about $3,000 is non-refundable and must pay $6,000 in total.
           Applications for permanent residence consist of fees, application form,
           photographs, and documentation.
      v. Form: Immigration application form (Business Class): asks about fluency,
           work history, information about dependents, what business person plans to do
           in Canada, bank statements, detailed information about assets and property,
           paper trail on how you earned your money.
                These questions are hard to answer for legitimate business persons
                   who come from countries that do not have the same type of


                                           106
                   infrastructure to make these types of documents available. Or may not
                   have same taxation infrastructure to prove income…
       vi. Student authorization: must prove you got into a school; have $ to support
            yourself; and prove not going to try and stay afterwards. Student visas are
            temporary.
             Courts: have held a visa officer can only put mind to period (1 year) that
               student intends to stay not what student intends to do over a life-time.
               So cannot deny a visa on suspicion that student would want a career in
               Canada.
       vii. Employment authorization: every person is assumed to be an immigrant; must
            prove not going to stay.
       viii. Returning Resident Permits (?)


Immigration Categories
1. Independent (Skilled Worker) is based on the POINT SYSTEM
2. The point system is out of 110; you need to get 70 points to pass, if you get it then you
   receive permanent residence status. It is a pass-fail system, with 70 as the cut-off.
   Some discretion remains to override the system-- if they think that the points do not
   reveal the ability or likely success of immigrant. Conversely, an applicant with 70-72
   points may receive a recommendation for non-entry by the visa officer. But as people
   appeal, the system is becoming more quantified.
3. Points Analysis
        Age (10): if 21-44 receive the maximum.
        Occupation Demand Factor: is there a demand for your job. Computer
           programmers, physiotherapists, engineers. A MD would not be welcomed
           because the College of Physicians and Surgeons wants Canadian trained MDs;
           so there may be 0 demand for a foreign trained MD. The Education factor may
           be high.
                    In this category if you get a 0, you cannot be let in.
        Education/Training Factor (18): related to job skills. Asses applicants skill
           levels. Does your occupation require training in Canada?
        Experience (8):
                    In this category, if you get a 0 you cannot be let in.
        Arranged (and certified) Employment (either 0 or 10): do you have job offer,
           has to be certified by Canada Human Resources (must be sure that no
           Canadian can fill it).
        Demographic Demand Factor (currently set at 8) : is set by government to
           increase or decrease the level of immigration. You get the points
           automatically. In 1998 there were 175,000 landings out of a target of 200,000.
           The DDF may be increased to 10.
        Education (0-16): high school- if allows to go on to university (10);
           community college (13), B.A. (15); 2nd degree (16).
        English/French (15) whatever is first (9) and if you speak another (6).
        Relative in Canada Bonus (5) : someone who may give you support.


                                            107
         Personal Suitability (0-10) : comes at interview: if at 60-70 point range, can
          request an interview where the visa officer will assess initiative, motivation,
          and adaptability and assign you up to 10 points.

2. Business Immigrant
a. Self-Employed: includes artists, musicians, athletes, but now also includes investors,
   business persons consultants. Efforts now are at eliminating the growth of this
   category (see White Paper New Directions).
b. Entrepeneur: can be business or managerial skills; need to invest $200,000 on arrival,
   enter a business in 2 years and must provide monitoring reports every 2 months. If
   someone is not making a serious investment, the department will often stall in
   granting PR status to bare out whether person is seriously investing money.
c. Investor: need a net worth of $800,000; must make investment of $400,000 which is
   basically given to the government for 5 years at a nominal rate of interest. Canadian
   bonds. In PQ you can choose an investment fund instead of government (which may
   pay a better interest rate).

3. Family Class
i. Application is 100% successful unless the dependent has a medical problem.
ii. Family class includes parents, spouses, fiancees, dependent children of Canadian
     residents.
iii. If sponsoring parents or fiance must prove that you are earning a minimum amount
     per year before application will be allowed.
iv. Spouses or dependent children do not require an certain income for sponsoror.

4. Refugees
a. 2 test requirement: meets test of UN Convention and government still applies test of
   skilled worker category. Can still evaluate whether person will be successful.

5.   Humanitarian & Compassionate Application for Landing Inside Canada
    Can apply for landing inside Canada, using H&C grounds.
    There is a $500 fee.
    H&C can apply to former Canadian citizens that have lost citizenship.

Misc
 Occupational caregivers that live with a family can apply for PR status after 2 years.
 Crime: if offence committed in Canada must apply for pardon (?); if outside Canada
   and for more than 5 years must give proof of rehabilitation.




                                            108
SHEHNI DOSSA, MEMBER, IMMIGRATION APPEAL DIVISION,
IMMIGRATION AND REFUGEE BOARD, VANCOUVER
Practice and Procedure Before the Immigration Appeal Division

I. Immigration Appeal Division - is 1 of 3 divisions in the Immigration and Refugee
     Board. It is a court of record. The process is adversarial, the Minister of Citizenship
     and Immigration is represented in the hearing. All evidence brought by parties but no
     formal rules of evidence. The test for admissibility is credibility or trustworthiness
     and necessary (69.4(3)(c )) Each appeal is a hearing de novo and can look at new
     evidence at time of hearing. Most hearings have a single member. Have to apply to
     make hearing in camera, most are public. About 1/3 of proceedings are resolved
     without hearing (arrested, withdrawn, abandonned); 1/3 allowed; 1/3 are dismissed.
II. Jurisdiction: s69.4 of the Act:
          (1) states Appeal Division is a court of record.
          (2) Appeal Division has exclusive and sole jurisdiction to hear and determine
            all questions of law and fact, including jurisdiction, in respect of appeals made
            pursuant to ss 70, 71, and 77.
          (3)-Powers- has all such powers, rights, and privileges as are vested in a
            superior court of record and can (a) issue summons for appearance and to
            bring/produce and document… (b)administer oaths and examine any person
            on oath; and (c )during a hearing, receive such additional evidence as it may
            consider credible or trustoworthy and necessary for dealing with the subject
            matter before it.
          (5) Written reasons must be given, if requested, on appeals made pursuant to
            ss70 or 71 within 10 days after notification of disposition.
III. 3 Kinds of Appeals:
         1. Section 77 Act: [60% of workload]- Appeals by Sponsors
                  (1) where a person has sponsored an application for landing made by
                     member of family class, an immigration officer or visa officer, may
                     refuse to approve application on the grounds that
                         (a) person who sponsored the application does not meet the
                              requirements of the regs..
                         (b) the member of the family class does not meet the requirements
                              of this Act or the regs…
                  (3) Subject to subsections (3.01,3.02,3.1) a Canadian citizen or PR
                     who has sponored an application for landing that is refused pursuant to
                     sub(1) may appeal to the Appeal Division on either or both of the
                     following grounds
                              a. any ground of appeal that involves questions of law or fact,
                                  or mixed law and fact; and
                              b. on the ground that there exist compassionate or
                                  humanitarian considerations that warrant the granting
                                  of special relief.
         2. Section 70 Act: Appeals by Permanent Residents



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                         (1) where a removal order or conditional removal order is made
                          against PR or person lawfully in possession of valid returning
                          resident permit…that person may appeal to the Appeal
                          Division on either or both of the following grounds,
                              (a) on any ground of appeal that involves a question of law
                                  or fact, or mixed law and fact ,and
                              (b) on the ground that, having regard to all the
                                  circumstances of the case, the person should not be
                                  removed from Canada.


        3. Section 71 Act- Appeal by Minister
               (1) The Minister (of Citzenship & Immigration) may appeal to the
                  Appeal Division from a decision by an adjudicator in the course of an
                  inquiry on any ground that involves a question of law or fact or mixed
                  law and fact.

III. Appeal Division decisions: the mandate of IRB is to make well reasoned decisions
     and try to expedite claims.
        A. Removal Orders: s70
                      (a) about half arise because of criminality (an offence under CCC or
                          NCA) and are ordered deported, and then appeal to AD. The AD
                          can take into account the circumstances in appeal such as
                           nature of crime and seriousness
                           how well established in Canada (eg family, etc)
                           remorse
                 (b) However, the federal court has prevented the Appeal Division from
                      looking at country conditions, on a removal order appeal. Their sole
                      job is to be determined whether the person is to be removed.
                 (c) Removal also occurs because of misrepresentation. Ex. may
                      misrepresent that they had no dependants and then later try to sponsor
                      someone. Can be deported on this ground; have not complied with
                      terms of landing (such as a fiancee marrying within 90 days;
                      entrepeneurs who have failed to establish a business in proper time).
                 (d) It is possible to try to challenge the legal validity of the law- but not a
                      common approach.
        B. S 70 Cases: Removal Orders
                 i. Options of AD are (1) to allow the appeal (2) dismiss the appeal or (3)
                      stay execution or removal order on condition (ex. from 1 to 5 years
                      person may have reporting conditions and if satisfied at end of term
                      and have complied with terms  removal order may be vacated).
                 ii. Criminality about 20% are stayed; entrepeneurs  common to stay.
                 iii. Serious Criminal Offences - Fed Court TD- took away jurisdiction
                      with respect to major criminality (the opinion of Minister must be
                      challenged in FCTD(?)


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        C. Examples of Appeals
                  Marriages: visa officer may feel intention of applicant to reside with
                     sponsor, this decision may be appealed.
                  Medical inadmissibility: disease dangerous to country (TB) or drain on
                     society‘s resources, excessive demand on public; challenge can seek
                     discretionary relief on H+C or on basis of MD‘s prognosis.
                  Financial, if sponsor does not meet low-income cut off. Most
                     challenges here are on H+C basis not legal validity.
                  Criminality appeals depend on seriousness and time that has lapsed
                     since crime.
                  Not satisfied with documentation; that X is not child of sponsor…may
                     require new evidence (DNA)
                  Failure to comply with request of visa officer.
IV. Appeal Process and Procedure
Process:
        a. Have 30 days to file appeal
        b. 215 days for Minister to file record (?)
        c. 180 days to get record from overseas (?)
        d. 2-3 months for hearing; hearing takes about ½ day.
        e. 3 months to get decision.
        f. About 9 months from receipt of record to decision.
Procedure:
        a. Law of evidence is not used, the key test is credibility and trustworthiness
             which is used to assess the weight of the evidence.
        b. Hearsay and opinion evidence are used.
        c. Each party has 20 days to serve evidence to other side and Board (?).
        d. Expert opinion can be in writing, phone, video, viva voce evidence is all used;
             ―day in the life videos‖ (for special needs persons). IRB has 150 language
             interpreters.
Decision: is fact driven, based on assesment of credibility, demaneour, files of visa
officer, testimony of family, etc…

V. 27(1)(e) Appeals
Canada (MCI) v. Seneca (1998 FCTD): where an adjudicator has found that a person was
granted landing by means of an improperly obtained visa pursuant to 27(1)(e) and a
removal order has been issued against that person, such a person is entitled to appeal the
removal order pursuant to sub 70(1) of the Act. The suggestion that the person concerned
has no status because she was not lawfully admitted in the first place cannot take away
the right of appeal on that very question.

VI. Appeal Division has no jurisdiction where a visa officer advises an applicant to drop a
    dependant and then applicant is admitted. Only if a dependant is refused can there be
    an appeal. But when family deletes a dependant, the AD has no jurisdiction because
    there was no refusal.



                                           111
VII. Legal Aid: not available to sponsors. About 15% of cases are unrepresented, also
    can just have ―helper‖ or consultant.




                                          112
SUZANNE DUFF, REGIONAL LEGAL OFFICER, UNITED NATIONS HIGH
COMMISSIONER FOR REFUGEES, VANCOUVER
Role of the UNHCR abroad and in Canada

1. Role of UNHCR in Canada: there are 3 UNHCR legal officers in Canada. As a
   signatory of the Convention and 1967 Protocol, the UNHCR monitors Canada‘s
   refugee process. In Canada most examination is of our ―process and procedures‖
   which can have an important impact on refugees.
        monitors Canada‘s law reform initiatives that can have an impact on status of
          refugees.
        Comments on bills (or proposals Not Just Numbers; white papers Building
          Strong Foundations)
        Observes: Will sit in on proceedings, as observer, watch how interviews are
          conducted; go to airports and observe how CIC processes persons.
        Involvement: if a ―refugee‖ receives a negative determination, can go to the
          UNHCR rep, who will interview claimant, and if they support him/her they
          will try to get discretionary relief for claimant. Ex. Write letters asking for
          PDRC (post-determination relief claim ?)
2. Intervention by UNHCR rep
       a. In some cases, refugee claimants are denied because they are likely to be
          prosecuted not persecuted. Turkish army deserters may desert on moral
          grounds because of repression of Kurds by army. Persecution may not be
          greater than if anyone else did it.
       b. Removability on basis of Criminality:
               United Nations Convention 1951- 33(2): legitimate right to return
                  refugee if they place asylum country in danger. UNHCR tries to make
                  removal consistent with s33(2); they point out that removal is an
                  extreme measure and should be accompanied with procedural
                  safeguards. But pressure on governments to remove criminals by
                  public.
               On drug related offences: the UNHCR: stresses that this falls short of
                  the kind of crime that negates refugee status; the obligations to
                  refugees are greater than of immigrants. UNHCR does not feel that
                  drug offences warrants a ―danger to the public‖ classification under
                  s33(2).
               Violent Crimes: hard for UNHCR to help, but can help ensure that
                  procedural safeguards followed; that claimant receives right to judicial
                  review of 2 decisions
                       (1) danger to public
                       (2) removal under 33(2) Convention
               Procedural Difficulty: CIC will actively try to remove a refugee before
                  application for judicial review is heard. The CIC is concerned about
                  counsel‘s abuse of system. In some cases, CIC will remove refugee
                  before application to stay removal orders until Judicial review is heard.



                                           113
                  Release from Detention: requires proof that (1) not likely to be danger
                     to public and (2) likely to be present at next proceeding.
3. Conflicting Pressures on Government
         A. Canada signed the Convention Against Torture (CAT), which holds that
             countries are so against torture that even if a refugee claimant does not fit
             within classification, if they are subject to torture they should not be re-fouled.
             Minister held this should be incorporated into Immigration Act
         B. CIC: clearly states: under obligation to remove. Public pressure, etc.
4. Critique of Canada’s Refugee System
         a. Canada goes further than most states and offers its refugee‘s landed immigrant
             status. But Canada delays certain rights which the UNHCR wants to flow from
             refugee status not landed status.
                  Documentation: Canada requires that refugee have proper
                     documentation to receive landed status. The reason is concern over
                     scams. Gov‘t attitude towards lack of documentation is equating it
                     with fraud (White Paper). This leads to protracted delays: for a refugee
                     to obtain documentation must contact home country, tell where he is,
                     documents often intentionally removed (Kosovo), have consequences
                     for family, may cost $. These documents should not be insisted upon
                  Travel Documentation: once obtained refugee status, travel
                     documentation should be issued.
                  Right of family to re-unification is restricted until you are landed and
                     can‘t visit them (no travel documents)  leads to undue hardship.
                  Security Checks on refugees increases delays for landing.
         b. Needs more public awareness to counter misconceptions regarding refugee
             law.
         c. Absence of an appeal on merits of negative decision. Only grounds is judicial
             review which is not usually successful.
5. Kosovo Crisis:
i. March 23, UNHCR pulled out, March 24 bombing commenced. Human rights
     violations included the stripping of documents.
ii. UNHCR went into Montenegro, to deal with internally discplaced persons  Now
     part of UNHCR mandate.
iii. Since 1989, refugees were fleeing Kosovo, as KLA increased its presence migration
     worsened. In 1998- 1 year before bombing 460,000 had left Kosovo making up ¼ of
     Europe‘s asylum claims that year. Post -bombing 700,000 had fled.
Refugee Sites:
A. Montenegro: took the fewest refugees; concerned about Serb paramilitary reaching
     the refugees and lack of support by the Republic for the refugees.
B. Macedonia: is very poor, did not have support for refugees, concerned about resources
     going to refugees and concerned about demographic concerns.
          UN wanted land for camps, and had to convince to give up land.
          Macedonia‘s reluctance accept refugees led to increase pressure for the
             international community to accept refugees . On April6-7: Macedonia swept
             out 30,000 refugees and sent them to Turkey-- without properly documenting


                                              114
            it, and ensuring families remain together. Many in Macedonia were
            accomadated by host families, these families were not known to UNHCR and
            were v. poor and in some cases exploited the refugees.
C. Albania: main concern was movement of the refugee camp from the border. KLA was
   infiltrating and recruiting in the camp. Exploitation (prostitution to feed children; give
   me $ and I will locate you kids, take you to X) and security problems. It has hard to
   get refugees to move from the border because many were expecting relatives and
   wanted to be at the point of entry.

E. Return Issues: UNHCR won‘t participate in an organized return until legal structure
   and safety assured. UNHCR tried to set up registration of Kosovars but most left to
   get back and protect their property before identified. Now big challenge is protecting
   Serb families and gypsies who are claimed to have collaborated with Serbs.




                                            115
STUDENT SEMINAR PRESENTATIONS

BUSINESS IMMIGRATION PROGRAM
I. Thesis:
        a. Canada as a nation is a community. There are 2 ways to admit new members
             by birth or immigration.
        b. Immigrants are selected on the basis of what benefits the give to the
             community.
                          Family class: high probability of integration or support
                          Skilled worker: exchange some labour for membership in
                            Canada.
                          Business: exchange capital for membership.
        c. Family and skilled workers cannot separate their benefit or family from who
             they are. But business immigrants there $ is separable; their money may not
             even enter the country.
II. Business Immigrants must have (i.) capital and (ii) business experience. The capital
     may not be transferred and business experience is culturally relative (language,etc). If
     human capital is not transferred then not likely that investment will remain following
     mandatory retention of capital.
III. Investor Program-
        i. 1986-> advent of program could invest in private companies, private-run
             venture capital funds, and provincially-administered venture capital funds.
        ii. Abuses start to arise so only provincially administered venture capital funds
             were permitted.
        iii. 199?->can only invest in Canada Fund; no chance for profit or loss. Must have
             a minimum net worth of $800,000 and must invest $400,000 over 5 years (get
             debt obligation from Solicitor General).
IV. The public nature of this system does not give any incentive to keep money in
     Canada. If it was private their would incentive to learn about the market and some
     human capital would be transferred. Profit/loss is needed to increase benefit to
     Canada.




                                            116
LIVE-IN CAREGIVER PROGRAM
I. History:
      a. Started with British/European women. Aim was to help protect the country,
          populate the west, and to do jobs that most Canadians would not. Canada
          subsidized the costs but could not get enough women to stay and demand
          >supply. (Did not have the same issues of exploitation)
      b. 1950s- [Caribbean]West Indes Domestic Scheme- shift to 3rd world women in
          Jamaica and Barbados. Women were allowed to come to Canada as domestic
          workers. They were given temporary visas and had no opportunity to apply for
          landed status. If job was lost they were deported. They were not immigrants,
          easily exploited (physical, sexual, emotional).
      c. 1973- Employment Authorization Program- obtained temporary work visas
          with no possibility of landing. Visas for max. 5 years, reviewable after 1 year.
               7 Jamaican Women Case 1973-74: women failed to indicate they were
                   married and had children (contravened criteria) and when they applied
                   for landing they were deported because of misrepresentation.
                   Government allowed them on Minister‘s permit.
      d. Lobbying by groups such as Interseed; Foreign Domestice Workers
          Association; Phillipines Women‘s Centre.
      e. 1982- Foreign Domestic Movement- needed 1 year full time work experience
          or certificate proving training. No definition of foreign domestic worker.
          Married women allowed marriage/dependants; ie that was no grounds solely
          used as basis for refusal but could be considered. Could apply for landing after
          2 years. Live in requirement became mandatory. Landing criteria determined
          by Immigration Manuals which listed 7 criteria for FDW to get landing but
          most women didn‘t know what skills they needed to upgrade.
               Pinto v. Canada denied entry as a foreign domestic worker because
                   visa officer did not recognize home domestic work as experience.
                   Court held that the visa officer‘s conclusion was unreasonable and was
                   an error of law.
      f. 1992- Live in Care Giver Program- only have to show you lived in for 2 of 3
          years to be granted landing. 3 requirements to be eligible for the program:
                       1. Grade 12 education
                       2. 6 months training
                       3. speak/read English/French
               Landing has become comparably easy, but qualifying for the program
                   is harder. Under the FDM there was 7,835 entrants/year; in 1992 under
                   LC-GP 3,878 were accepted.
      g. 1994- Changes- need
              i) the successful equivalent of Canadian secondary education; (have been
                   rejected because of equivalency)
              ii) 6 months of training or 12 months of job experience;
              iii) ability to speak/read English/French at level such that one can
                   communicate in an unsupervised setting. (discretion)




                                           117
       h. 1998- Recommendations for Change- independent class would not qualify
            under point system. Government should end live in requirement; give landing
            status; allow bring over dependants. (Bableen‘s ideas)
II. Problems with Programs:
       i. sexual abuse
       ii. invasion of privacy
       iii. invisibility of care giver
       iv. firing without notice
       v. overworked- on call and holidays are shortened
       vi. threats of dismissal; fear of deportation
       vii. Under 1992 program: must pay CPP and EI but and can quit, but cannot be
            unemployed for long enough to collect EI.

 In some cases the problems arise from the illegal acts of the employer not the
  program.

III. Rationales: i. There is a demand for live in caregivers but not live-out care givers. ii.
    Denial of landing recruitment of non-domestic helps to impeded a high turn over of
    caregiving which is good for the continuity of care of those in need.
IV. Explotive Relationship: mimics expoitation of 3rd world
        i. In the domestic realm, workers can be exploited by emotional connections and
             ties to the family.
        ii. Dependence on employer for access to income.
        iii. Workers expected to be asexual- strict rules on no guests; harassment by
             employer.
        iv. Transforms private home into public realm. Family relationship transformed
             into employer relationship.
 upon arrival worker must give up political/legal rights; it reinforces difference
    between rich and poor.
V. Solution:
        i. eliminate the live-in requirements
        ii. grant landing
        iii. allow bring over dependants




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S.15 CHARTER AND EXTENSION TO FOREIGNERS WITH DISABILITES
SEEKING ENTRY

I. Section 3(f) of the Immigration Act: that persons seeking entry on a permanent or
    temporary basis are subject to standards that do not discriminate in a manner
    inconsistent with the Charter.
II. Does Immigration Act, discriminate on the basis of 1 or more characteristics (contrary
    to s15)? Issue: s19(1)(a) allows exclusion on basis of disease, disorder, disability…
    it draws a distinction between disabled and abled.
          19(1)(a)(ii) allows for exclusion of person who ―might reasonably be expected
             to cause excessive demands on health or social services.‖ Regs 22: excessive
             demand on public health is determined mostly by disability: the need for
             health services; medical surveillance; hospitalization…
          Disability, in itself, brings a person under 19(1) scrutiny.
III. Is the law discriminating? Is it violating human dignity and freedom. Not all
    disabilities lead to demands on health and social services. Medical inadmissibility
    may be premised on uninformed stereotypes.
          Does the law in purpose or effect perpetuate the devaluation of persons in
             society? Yes, Medical inadmissibility represents a violation of human dignity
             of applicants.
IV. Section 1 analysis: is there a pressing and substantial objective? 19(1)(a)(ii) 
    reducing pressure on public purse. Rational connection does this further objective?
    No. Do the measures support the objectives? Not clear.
V. Contrast the assessment of these immigrants by Medical Health officers overseas:
    with current Refugee resettlement policy: to give priority to sickly; are supposed to
    look at ability to ability to settle.




                                           119
FORCED STERILIZATION IN REFUGEE LAW
I. Background: 1 child policy in PRC. Article 25 of the PRC Constitution gives party
    leaders right to speak for the people. People who object are counter-revolutionaries.
    Government can use local offices are coercive tools to enforce the policy. They may
    use mandatory sterilization or abortion. Those who disobey may be branded criminals
    or terrorists.
II. Canada’s Refugee Law: based on 2(1) of Convention Refugee Definition: claimants
    must have a well founded fear of persecution; a well founded fear must satisfy 2
    requirements:
                 i. extreme form of anxiety- sincere and reasonable.
                 ii. subjective fear
         on BOP there must be a risk that person will suffer persecution - beyond a
            mere possiblity ( Ward).
         Onus on claimant to show good grounds. (Adjei)

        Well founded fear must be of conduct/acts. UNHCR Handbook states Art. 33
           Convention  threat to life, liberty…is always persecution.
III. Cases
        Cheung v. Canada (FCA): Chinese woman had second child and faced forced
           sterilization was a ―social group‖ and violation of human rights under
           Universal Declaration of Human Rights. Held: there was a reasonable
           expectation of sterilization.
        Chan v. Canada (SCC): rejected male as a social group but was a violations of
           human rights. Held:Distinguished from Cheung, in this case no reasonably
           held fear of persecution. Cannot rely on Cheung because there is not
           necessarily equality of the sexes, and the law may apply differently between
           women and men.
                LaForest (dissent): no distinction in cases. 3 possible definition of
                    social group; 1 of which is fundamental human dignity Chan should
                    fall.
        thesis: human rights approach should guide interpretation of social group test.
           Ward advances development of Refugee law; Chan undermines it.




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GENDERED RELATED PERSECUTION
(1) The absence of gender related persecution in the UN Convention Relating to the
    Status of Refugees can be explained by its creation.
        i. Convention was a political tool to embarrass communists. Women were not
            considered public or political actors that would need protection.
(2) Need to fulfill all the criteria to be a refugee. Gender is not a basis for discrimination
    (the Convention is gender neutral).
(3) Guidelines: the Refugee Board can use this as a tool in considering persecution of
    women by state agents. Implemented in 1993 in reaction to need for gender analysis.
        a. Are not intended to stretch the meaning of refugee.
        b. Only a tool for IRB to understand what persecution of women looks like. Male
            persecution is based on state abuse; female persecution may occur in the
            home/family with state acquiescence. Persecution may be based on
            identity/belief; kin; discrimination; failing to conform to gender role.
        c. Substantive analysis does not change.
        d. Guidelines: women are usually persecuted by family members; women may
            have no evidence, feel shame in telling story, credibility may be lower because
            abuse can be hard to document (psychologically may not be able to retain
            facts).
(4) 1998/99 there were no reported cases for gender related persecution. IRB does
    routinely deal with gender. IRB can also avoid the gender-related guidelines if they
    can fit under another ground.
        a. If they make decisions on basis of guidelines they must write reasons as to
            why they used them.
(5) Canada could bring gender into the interpretation of Convention Refugee via the
    Immigration Act but as leaders in Refugee law, we don‘t want to show that our
    guidelines aren‘t working.
(6) Gender comes under social group?




                                             121
APPLYING ADMINISTRATIVE LAW PRINCIPLES TO LIMIT
DISCRETIONARY POWER OF VISA OFFICERS ON THE SELECTION OF
IMMIGRANTS
The Business Class Immigrant Application as a Case Study of Some Administrative Law
Issues
However, there are still strong complaints from immigration lawyers that Parliament has
granted too broad a discretion to visa officers. A great deal of immigration procedure is
not in accord with natural justice and some other general administrative principles. It is
contended that immigration agencies have granted themselves discretionary powers
beyond the realm of the Parliament‘s authorization.

Section 11(3) of the Regulations also grants the visa officer the discretionary power to
issue or refuse the issuance of a visa to an applicant who has not received the required 70
points. The officer may exercise this discretion if, in the opinion of the visa officer, there
was reason why the number of units of assessment awarded do not reflect the chances of
the particular immigrant and his dependents becoming established in Canada. In either
case, the visa officer must obtain the approval of a senior immigration officer. An
individual who has not met the requirements for an interview may request that
 the officer exercise his or her discretion under s.11(3).

I. Act and Regs provide too much discretionary power to visa officers.
          Act ss 5, 9, 37, 114(1) uses the term ―may‖ which gives discretion to visa and
             immigration officers.
          Regs 11(3) may overrule the point system even if the requirements are
             satisfied.
II. At common law no right to enter a country. Sopinka Chiarelli . Can be challenged
     by Ho v. Canada  Parliament‘s intention of Act is to permit immigration. On the
     other hand, Ho v. Canada asserted that since the purpose of the statute is to permit
     immigration, not prevent it, a rigorous duty of fairness should be imposed on
     immigration officers. On top of that, s. 3(f) and s.15 of the Charter of Rights and
     Freedoms can also be cited to support the notion of using section 3 of the Immigration
     Act as a guideline for visa officers(See Hosenball)
III. Problems under this system:
          discrimination
          damage to rule of law
          loss to Canadian society of potentially good applicants.
         
IV. Conclusion
       As explained in this paper, the discretionary power of visa officers on the selection
of immigrants, especially business class immigrants due to its vague wording
requirements, is really problematic. Misuse of discretionary power may easily happen. It
will certainly cause significant losses to both the Canadian society and the applicants.
         There are numerous grounds to justify the limitation of discretionary power of
visa officers. All of these reasons aim at protecting the public. Just as K.C. Davis said,
openness of the immigration procedures will serve this aim. In other words, we should


                                             122
allow the participation of the public in the process of decision making. Due to this
rudimentary principle, I submit that some of the current immigration procedural practices
should be reformed. Open and oral hearing, for instance, should be given to the applicant
if there is a dispute as to the procedural fairness. The court should also impose on visa
officers a duty to give reasons, which can be generalized as one of the factors stated in
section 3 of the Immigration Act. Although the wording of this statutory delegated/
delegation clause under the Immigration Act was criticized to be too vague a standard to
follow, this provision establishes a framework to limit he scope of visa officers‘
authority.
          Because of the increasing number of immigrants, the discretionary power of visa
officers is gradually becoming a controversial issue. More disputes and lawsuits will
probably be brought up to challenge the legality of this discretionary power. Parliament
and the provincial governments would be wise to reform the current system before
spending excessive cost, time, and labour on it.




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CSIS AND IMMIGRATION SCREENING

In contrast, section 19(1) of the Immigration Act employs definitions of
threats to the security of Canada that are notoriously difficult to define,
such as 'espionage', 'subversion', or 'terrorism'. Despite this vagueness,
the Act authorizes declarations that an applicant is likely to engage in
activities inimical to the interests of Canada and is thus, inadmissible.
With regard to terrorism, of particular importance are sections 19(1)(c.1)
to 19(1)(g) which deal with those individuals who, there are reasonable
grounds to believe may participate in, or commit criminal acts, including
espionage, terrorism or subversion.

If an applicant is identified as a potential threat to the security of
Canada, paragraph 39(2) of the Immigration Act authorizes the issuance of a
report to CSIS indicating this belief. Pursuant to section 39(5) of the
Immigration Act, CSIS is authorized to conduct a security review in
accordance with the provisions of the CSIS Act, in particular paragraph 12
re investigations and paragraph 14 re advice to ministers of the Crown in
security or criminal matters .

Upon receipt of a report from CSIS, section 38.2 of the Immigration Act
provides that the purpose of sections 39 to 40 and their subsections is to
identify, notify and provide for the exclusion of persons deemed to be
inadmissible to Canada. Specifically, section 40 provides for the issuance
of a security certificate of inadmissibility, which allows deportation of
the individual. Having issued the certificate, section 40.1(3) provides
that "reasonableness" of the certificate, based on the evidence, be reviewed
within seven days by a Federal Court Judge. After which, if deemed
reasonable, the person may be deported. Moreover, section 40.1(6) provides
that any such determination, once affirmed by the Federal Court is not
reviewable.

The decision in Chiarelli affirmed the earlier Federal Court
decision in Thomson v. Canada which held that … held that the primary
purpose of the CSIS Act, and by implication the Immigration Act, is to
protect Canada's national interests in matters involving national security.
Henrie v. Canada further established that there will be times when the
public interest in full disclosure in the administration of justice will
play a secondary role to the interests of the state in preserving national
security.
In Re Al Sayegh, the Federal Court Trial Division held that the question of
the reasonableness of a certificate of inadmissibility, per section
40.1(4)(a) of the Immigration Act is simply an immigration matter, and the
principles and policies underlying Canadian Criminal Law are not applicable.
Moreover, McGillis J ruled that s. 38.1 imposes a duty on the Government of


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Canada to remove persons posing a threat to the security of Canada. In Re
Ahani, Denault J of the Federal Trial Court held that the requirement of a
reasonable belief, based on the evidence, was sufficient grounds for removal
of those believed to be involved in violence, terrorism, espionage and
subversion. Actual proof was not required. In addition the court held that
terrorism was to be given a broad definition. In re Shandi, the Fed Trial
Crt affirmed that terrorism is to be given a broad definition, and went on
to say that the actus reus of activities defined in section 19(1)(c.1)
through 19(1)(g) must by inference, incorporate those who assist or
facilitate such activities.
In Re Baroud, Denault J of the Fed Trial Court adopted the test developed in
AG v. Jolly for making determinations of reasonability. Moreover, terrorism
was expanded to include the political connotations it entails.
Judicial consideration of 19(1)(g) has not been as deferential as the
decisions re 19(1)(c.1) through (f). In Smith v. Canada, Cullen J held that
there should be a multifaceted approach which would a judge would exercise
discretion in determining whether conduct met the prescribed standard of
proof. Especially where such discretion could result in the suspension of
liberty the mere reasonable belief would not be sufficient, rather actual
evidence would be required. The Fed Trial Court in Re Farahi Mahdavieh
challenged the decision in Smith v. Canada. Denault held that the Court
should not required a higher standard of reasonableness, because the Act
itself merely requires meeting the reasonableness standard.

        In conclusion, the deference of the Court to the interests of national
security raises concerns that, without increased accountability via greater
public scrutiny, the potential for abuses of the security screening function
to exclude otherwise admissible persons is real.




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Statutory Authority for Security Screening
The Canadian democratic system is premised on respect for the rights and
freedoms of the individual, as enshrined in the Constitution by the adoption
of the Canadian Charter of Rights and Freedoms in 1982. Thus, the raison
d'être of a security intelligence service in Canada is the maintenance of
democracy and the preservation of individual rights and freedoms. The extent
to which individual liberties are infringed by CSIS operations is directly
proportional to its failure to maintain the democratic state and individual
liberty it was created to protect. Accordingly, the CSIS Act was
constructed so as to limit the types of activities that can be investigated,
the ways that information can be gathered, and who may possess and review
the data collected.

However, before considering the statutory provisions for these powers, it is
important to first elaborate what constitutes a threat to the security of
Canada. This is problematic in that both the CSIS Act and the Immigration
Act use somewhat different wording.

For the purposes of CSIS security-screenings, section 2 of the CSIS Act
defines 'Threats to the security of Canada' as including (a) espionage or
sabotage, (b) foreign influenced … clandestine or covert activities, (c)
activities directed toward or supporting the threat or use of serious
violence to achieve a political objective, and (d) covert unlawful actions
intending to destroy or overthrown by violence the established
constitutional system of government in Canada. A threat to the security of
Canada does not include lawful advocacy, protest or dissent unless carried
on in conjunction with any of the activities in 2(a) to 2(d) This detailed
definition not only limits CSIS investigations, it also excludes
investigation of certain activities in order to preserve individual rights
to dissent, or otherwise exercise their democratic rights.

In contrast, section 19(1) of the Immigration Act employs definitions of
threats to the security of Canada that are notoriously difficult to define,
such as 'espionage', 'subversion', or 'terrorism'. Despite this vagueness,
the Act authorizes declarations that an applicant is likely to engage in
activities inimical to the interests of Canada and is thus, inadmissible.
With regard to terrorism, of particular importance are sections 19(1)(c.1)
to 19(1)(g) which deal with those individuals who, there are reasonable
grounds to believe may participate in, or commit criminal acts, including
espionage, terrorism or subversion.


                                           126
If an applicant is identified as a potential threat to the security of
Canada, paragraph 39(2) of the Immigration Act authorizes the issuance of a
report to CSIS indicating this belief. Pursuant to section 39(5) of the
Immigration Act, CSIS is authorized to conduct a security review in
accordance with the provisions of the CSIS Act, in particular paragraph 12d
re investigations and paragraph 14 re advice to ministers of the Crown in
security or criminal matters . Paragraph 15 then further establishes that
the service may conduct investigations as required for the purpose of
providing advice to Ministers of the Crown per section 14. If a person is
deemed to be a threat to the security of Canada, the person can appeal
CSIS's findings to the SIRC pursuant to section 41(1) of the CSIS Act. To
do so, the person must be able to establish that (a) a complaint was filed
with the Director of CSIS without reasonable response, and (b) that the
complaint is not trivial, frivolous, vexatious or made in bad faith.
Paragraph 39(1) allows SIRC to establish its own rules and procedures. Of
particular importance are rules 39 through 51 which delineate the methods
SIRC complaint reviews shall employ. Once a Committee member determines that
SIRC jurisdiction applies, the complainant is informed of his or her right
to make presentations pursuant to the attached allegations giving rise to
denial of security clearance.
SIRC is empowered to summon and enforce appearance, to compel written or
oral evidence under oath, and to require production of necessary documents
and to hear any other evidence that is relevant. The Committee member of
record retains discretion to balance the right of the individual to know and
respond to the allegations with the need to prevent divulgence of matters
relevant to national security. Where possible witnesses may be
cross-examined, however, because of security considerations they may not be
able to cross-examine all witnesses. When they cannot, a unique procedure
allows SIRC counsel to conduct a cross-examination on the complainant's
behalf. When the complainant returns, a summary of the evidence is
presented for his or her review and cross-examination. Once the hearing is
concluded, a copy of the findings and recommendations of the individual
member is submitted to the SIRC for review. Once finalized, the Director of
CSIS is consulted re security requirements, and a report is issued to the
Minister of Immigration.

Upon receipt of a report from CSIS, section 38.2 of the Immigration Act
provides that the purpose of sections 39 to 40 and their subsections is to
identify, notify and provide for the exclusion of persons deemed to be
inadmissible to Canada. Specifically, section 40 provides for the issuance
of a security certificate of inadmissibility, which allows deportation of
the individual. Having issued the certificate, section 40.1(3) provides
that "reasonableness" of the certificate, based on the evidence, be reviewed
within seven days by a Federal Court Judge. After which, if deemed


                                         127
reasonable, the person may be deported. Moreover, section 40.1(6) provides
that any such determination, once affirmed by the Federal Court is not
reviewable.

Case Law
The pre Charter starting point, as set out in Prata, was that non Citizens
do not have rights in Canada. Passage of the Charter seemed to indicate a
new direction for the rights of persons in Canada. In Singh v. Canada, the
SCC, though split in its reasoning, held unanimously that anyone in Canada,
including immigrants, visitors and refugees have a right to fundament
justice as guaranteed by section 7 of the Charter.
The trend towards liberal application of the Charter was reigned in in a
subsequent decision of he SCC in R. v. Chiarelli where the court, showing
considerable deference to parliament, held that the most important principle
of immigration law is that non citizens do not have an unqualified right to
enter or remain in Canada. Furthermore the distinction between citizens and
non-citizens is recognized in section 6(1) of the Charter, which provides
that only citizens are accorded the right to enter, remain in and leave
Canada. The decision in Chiarelli affirmed the earlier Federal Court
decision in Thomson v. Canada which held that … held that the primary
purpose of the CSIS Act, and by implication the Immigration Act, is to
protect Canada's national interests in matters involving national security.
Henrie v. Canada further established that there will be times when the
public interest in full disclosure in the administration of justice will
play a secondary role to the interests of the state in preserving national
security.
In Re Al Sayegh, the Federal Court Trial Division held that the question of
the reasonableness of a certificate of inadmissibility, per section
40.1(4)(a) of the Immigration Act is simply an immigration matter, and the
principles and policies underlying Canadian Criminal Law are not applicable.
Moreover, McGillis J ruled that s. 38.1 imposes a duty on the Government of
Canada to remove persons posing a threat to the security of Canada. In Re
Ahani, Denault J of the Federal Trial Court held that the requirement of a
reasonable belief, based on the evidence, was sufficient grounds for removal
of those believed to be involved in violence, terrorism, espionage and
subversion. Actual proof was not required. In addition the court held that
terrorism was to be given a broad definition. In re Shandi, the Fed Trial
Crt affirmed that terrorism is to be given a broad definition, and went on
to say that the actus reus of activities defined in section 19(1)(c.1)
through 19(1)(g) must by inference, incorporate those who assist or
facilitate such activities.
In Re Baroud, Denault J of the Fed Trial Court adopted the test developed in
AG v. Jolly for making determinations of reasonability. Moreover, terrorism
was expanded to include the political connotations it entails.
Judicial consideration of 19(1)(g) has not been as deferential as the


                                       128
decisions re 19(1)(c.1) through (f). In Smith v. Canada, Cullen J held that
there should be a multifaceted approach which would a judge would exercise
discretion in determining whether conduct met the prescribed standard of
proof. Especially where such discretion could result in the suspension of
liberty the mere reasonable belief would not be sufficient, rather actual
evidence would be required. The Fed Trial Court in Re Farahi Mahdavieh
challenged the decision in Smith v. Canada. Denault held that the Court
should not required a higher standard of reasonableness, because the Act
itself merely requires meeting the reasonableness standard.

        In conclusion, the deference of the Court to the interests of national
security raises concerns that, without increased accountability via greater
public scrutiny, the potential for abuses of the security screening function
to exclude otherwise admissible persons is real. Given that Canada is
largely a nation of immigrants, this is particularly worrisome. Thus, as
noted by John Stuart Mills, "All silencing of discussion is an assumption of
infallibility", and this is a presumption that has, historically, proven to
be dangerous to the rights and liberties of the individual.




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