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					                                                IMMIGRATION AND REFUGEE LAW: SUMMARY
                                                          Prof. Fox-Decent
                                                              Fall 2007
                                                          Dorian Needham

                                                                   TABLE OF CONTENTS

I. Introduction ..................................................................................................................................................................... 3
     A. General .................................................................................................................................................................... 3
     B. Context .................................................................................................................................................................... 3
               R v. Quong-Wing, [1914] 49 S.C.R. 440 .........................................................................................................3
               Canada v. Singh; Re Munshi Singh, [1914] B.C.J. No. 116 (C.A.)....................................................................4
               Mack v. Canada (Attorney General of Canada) (2002), 60 O.R. (3d) 737 (CA) ...............................................5
     C. Theoretical Perspectives: Sovereignty and Open Borders ................................................................................................ 6
               Carens, “Aliens and Citizens” .........................................................................................................................6
               Walzer, “Membership” ...................................................................................................................................8
               Galloway, “Liberalism, Globalism, and Immigration” .....................................................................................9
               Dauvergne, “Amorality and Humanitarianism in Immigration Law” .............................................................11
     D. Status .................................................................................................................................................................... 12
          1. Citizenship ........................................................................................................................................................ 12
               Chen v. Canada (2001), Imm. L.R. (3d) 222 (FC-TD) ...................................................................................13
               Langner v. Canada (1995), 184 N.R. 230 (FCA) ...........................................................................................13
          2. Permanent Residents ......................................................................................................................................... 14
               Romans v. Canada (2001), 281 N.R. 367 .....................................................................................................15
          3. Foreign Nationals .............................................................................................................................................. 15
II. Review ......................................................................................................................................................................... 15
     A. Constitutional Review ............................................................................................................................................... 15
               Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177......................................................16
               Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 ..................................17
               Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 ..........................................18
     B. Administrative Review of Substantive Decision ............................................................................................................ 18
               Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 ...........................19
               Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 ........................................20
               Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 ..........................................21
     C. Administrative Review of Procedural Fairness .............................................................................................................. 21
               Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 ........................................21
               Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 ..........................................22
     D. Institutional Independence ....................................................................................................................................... 23
     E. International Review ................................................................................................................................................ 23
               Tahir Hussain Khan v. Canada, Committee Against Torture (1995)..............................................................24
               Conclusions and Recommendations of the Committee Against Torture: Canada (2005) ..............................25
III. Temporary Residents .................................................................................................................................................... 25
     A. General Requirements .............................................................................................................................................. 25
     B. Temporary Workers ................................................................................................................................................. 26
               Walzer, “Membership”, Spheres of Justice ...................................................................................................26
     C. Live-in Caregivers.................................................................................................................................................... 28
               Macklin: “On the Inside Looking In: Foreign Domestic Workers in Canada” ................................................28
     D. Students ................................................................................................................................................................ 29
               Kim v. Canada (Minister of Citizenship and Immigration), 2004 FC 55, [2004] F.C.J. No. 42 (FC-TD) ..........30
     E. Breach of Conditions ................................................................................................................................................ 30
               Dinh v. Canada (Minister of Citizenship and Immigration), 2003 FC 1371, Imm. L.R. (3d) 167 (FC-TD) ......30
IV. Permanent Residents .................................................................................................................................................... 31
     A. Economic Class: Skilled Workers ............................................................................................................................... 31
               Dogra v. Canada (Minister of Citizenship and Employment) (1999), 166 F.T.R. 264 (FC-TD) .......................32
               Sheikh v. Canada (Minister of Citizenship and Immigration), 2003 FCT 272 (FC-TD) ...................................32
               Chen v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 639 (FCA) ................................33
     B. Family Class............................................................................................................................................................ 34
          1. Partners ........................................................................................................................................................... 34
               Bhatti v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 333 (IAD) .......................35
               Macapagal v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 21 (IAD) ..................35
               Caron v. Canada (Minster of Citizenship and Immigration), [2005] I.A.D.D. No. 89 (IAD) ...........................36
               Awwad v. Canada (Minister of Citizenship and Immigration), Docket IMM-1003-98....................................36
               Salh v. Canada (Minister of Employment and Immigration) (1988), 5 Imm. L.R. (2d) 114 (IAB) ................37
          2. Children ........................................................................................................................................................... 37
               de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 .........................................38
          3. Sponsorship ...................................................................................................................................................... 40
               Macklin, “Public Entrance/Private Member” ................................................................................................40
               Fortaleza v. Canada (Minister of Citizenship and Immigration), [2005] I.A.D.D. No. 177 (IAD) ..................41
               Sheppard, “Women as Wives” ......................................................................................................................41
     C. Business Class – not discussed .................................................................................................................................. 42
Immigration and Refugee Law (Fox-Decent)                                                                                                      Dorian Needham (Fall 2007)
V. Refugees ...................................................................................................................................................................... 42
     A. International Context ............................................................................................................................................... 42
          1. 1951 Refugee Convention ................................................................................................................................... 43
               Hathaway, The Law of Refugee Status .........................................................................................................43
          2. UNHCR ............................................................................................................................................................. 44
          3. Interdiction ....................................................................................................................................................... 45
               Inter-American Commission on Human Rights, Report No. 51/96, Decision of the Commission as to the
                                      Merits of Case 10.675 United States (13 March 1997) ........................................................45
               UNHCR, “Safeguarding Asylum: Challenges to Protection” ..........................................................................46
               Safe Third Country Agreement .....................................................................................................................46
     B. Refugee Protection in Canada.................................................................................................................................... 47
          1. Process ............................................................................................................................................................ 47
          2. Definition of ―Refugee‖ ....................................................................................................................................... 49
               Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 ............................................................................49
          3. Outside Country ................................................................................................................................................ 51
               Canada (Minister of Citizenship and Immigration) v. Williams, 2005 FCA 126 .............................................51
          4. Fear of Persecution and Complicating Factors ........................................................................................................ 52
          5. Well-founded Fear ............................................................................................................................................. 54
          6. Grounds of Persecution ...................................................................................................................................... 54
               Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 .......................................56
               Islam v. Secretary of State for the Home Department, [1999] 2 All E.R. 545 (HL) .......................................56
               Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs, [2003] H.C.A. 71 (Aust. HC) ...57
          7. National State‘s Protection .................................................................................................................................. 58
          8. Exclusion Clauses .............................................................................................................................................. 59
               Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (CA) ..............................60
               Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 ...........................61
          9. Cessation Grounds............................................................................................................................................. 62
          10. Consolidated Grounds ...................................................................................................................................... 62
               Refugee Protection Division File TA1-24763 (11 February 2003).................................................................62
VI. Enforcement ................................................................................................................................................................ 63
     A. Smart Border Declaration ......................................................................................................................................... 63
               Smart Border Declaration ............................................................................................................................63
     B. Inadmissibility and Removal...................................................................................................................................... 63
          1. Health Grounds ................................................................................................................................................. 64
               Hilewitz v. Minister of Citizenship and Immigration, [2005] S.C.J. No. 58 (SCC) .........................................64
          2. Criminality ........................................................................................................................................................ 65
               Li v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 235 (FCA) ........................................65
          3. Organised Criminality ......................................................................................................................................... 66
               Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (FCA) ..................................66
          4. Crimes Against Humanity ................................................................................................................................... 67
               Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] S.C.J. No. 39 (SCC) .......................67
          5. Other Grounds of Inadmissibility ......................................................................................................................... 68
     C. Types of Removal Orders .......................................................................................................................................... 68
     D. Pre-Removal Risk Assessment................................................................................................................................... 68
               Varga v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1570 (QL) (FC-TD) ..............69
     E. Security Certificates and Danger Opinions ................................................................................................................... 69
               Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 ..........................................70
               Charkaoui v. Canada (Minister of Citizenship and Immigration), [2007] 1 S.C.R. 250 .................................71




                                                                                Page 2 of 74
Immigration and Refugee Law (Fox-Decent)                                                                   Dorian Needham (Fall 2007)
                                                     I. Introduction
                                                           A. General
   Many of Canada‘s immigration policies/laws are inherited in substance from the UK through our constitution, and include large
    grants of discretionary power
   Canada as a settler state
         o   Fundamental legal principle: original occupants to territory have a better claim (otherwise, an invitation to war) –
             yet those who arrived afterwards are those now (and for a long time) making immigration and refugee policy
         o   But Canada still has (relative to other Western liberal democracies) a relatively liberal policy
   Distinguish immigrants in general from refugees specifically: Canada takes approx. 250 000 immigrants each year, of which only
    8000ish are refugees (not incl. family reunification)
   Potential immigration selection criteria:
         o   Points/economic adaptability (bureaucrats decide)
         o   Free trade agreement of sorts
         o   Lottery (used in USA)
         o   Insurance bond (insurance against heavy use of social services)
         o   Queuing
         o   Prior connection
         o   Arranged employment (employers decide)
         o   Need of applicant
         o   Auction market
         o   International solution
         o   Open borders
         o   Closed borders
   Almost all studies show immigrants as net contributors to their destination countries – so the juxtaposition of humanitarian
    “as opposed to” economic criteria should be questioned


                                                           B. Context
                                                                                                                      CB 1-3, 6-32, 39

                                                            Key questions
   Can Parliament enact valid, racist legislation?
   Does Canada have a legal obligation to pay back the ―head tax‖ collected from Chinese immigrants?
   Do current (facially neutral) policies discriminate?
   What accounts for the shift in policy toward the use of non-discriminatory criteria for immigration?

Introduction
    Approx. 18% of Canada‘s population is foreign-born; 4% of Canadians are no immigrants or descendents thereof
    Immigration as integral to gov’t planning, influenced by high demand elsewhere for immigration to Canada and by
     Canadian values
    Popular attitudes presuppose that states can regulate who may enter (i.e., discriminate between citizens and non-citizens)
    Substantial role of racism in history of Canadian immigration law (ethnic origin long significant to conditions of entry)
    Today, racism still persists in facially neutral laws
    Fox-Decent: Parliament can enact valid, racist legislation only on a narrow vision of legislation, and not according to a broader
     vision as described above

Immigration of specific groups
  Chinese   immigration
        o     1800s: Chinese immigration encouraged for labour in the West (esp. railroad-building in BC)
        o     Late 1800s: non-Chinese (mainly British) settlers in BC wary of demographic shift as Chinese labourers brought their
              families over  lobbied Parliament
        o     1885: first head tax measure ($50) established  $100 in 1901  $500 in 1903 (huge sum for a day labourer at the
              time) – but Chinese persons continued coming
        o     1923: Parliament passed Chinese Exclusion Act to prohibit (with very few exceptions) any immigration from China
   Indian immigration
        o     Indians were considered loyal British subjects, so presumed to have the right to move freely within the Empire
        o     Hostility in the West towards this, but couldn‘t ban it in the same way as with Chinese immigrants
        o     Landing tax ($200, which didn‘t work because many Indians could afford it) plus other exclusionary bars (e.g.,
              continuous journey rule)
        o     Singh case: see reading
        o     1914-1920: only one Indian immigrant successfully immigrated to Canada
   Japanese government‘s voluntary exclusion

R v. Quong-Wing, [1914] 49 S.C.R. 440: CB 6-12
Facts: SK Act prohibited white women/girls from working in establishments run by a ―Chinaman‖
Issue: is the Act ultra vires SK?
Holding (Davies, 2-1-2 concurring): no  Saskatchewan
   Act affects civil rights of Chinamen whether naturalised or British subjects
                                                            Page 3 of 74
Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
   Bryden confirmed Parliament‘s right to legislate for the rights, privileges and disabilities of Chinamen in Canada, but Tomey
    Homma gave the provinces the right to legislate for all the consequences of alienage or naturalisation
   Act addresses property and civil rights, and there is no inherent right to employ women/children
   Act is intra vires, even if it operates prejudicially to one class or race
Ratio: legislation may operate prejudicially to one class or race provided that it is intra vires
Dissent (Idington)
   True purpose of Act is to curtail rights of Chinamen
   Q-W is a naturalised subject, a process that requires confirmation of good character – so there should be nothing to protect
    women/girls from
   Arguable that legislatures should be able to impair equal freedom and opportunity without valid cause
   Power over naturalisation has to compass such consequences that give this power meaning
   Parliament‘s powers are to be interpreted ―in a wide and statesmanlike fashion‖
   Act only applies to non-naturalised Chinamen – so whether it’s intra or ultra vires is beside the point
Notes
   One of many immigration cases that came before courts as questions of federalism
   Idington tries to give some shape to the norm of equality while arguing that SK had trenched on federal parliaments
   Highly racialised (if not racist) discourse of the cotemporary judges; cf. today, where judges have been disciplined for comments
    that are racialised
   Prevalent culture at the time was in favour of a ―better-bred‖ white Canada
   Cf. settlement treatment of Aboriginals in BC, who were given 4 acres each to establish reserves in order to clear land for white
    settlers who were given multiple hundreds of acres
   We see in Idington‘s (and others‘) dissent that there was a glimmer of equality thinking amongst some at the time, and a refusal
    to ignore legislative requirements that people with equal citizenship status be treated equally

Canada v. Singh; Re Munshi Singh, [1914] B.C.J. No. 116 (C.A.): CB 16-21
Facts:
   Contemporary Immigration Act included continuous journey rule, prohibition on labourers, and racial exclusions as well
   S and other Komagata Maru passengers (Indians) denied landing, detained pending deportation, denied habeas corpus
Issue: is the denial of habeas corpus constitutional?
Holding (MacDonald): no  Canada
   Orders in Council conformed to Immigration Act requirements: framers intended to enable GGinC to make regulations;
    regulations were intentionally discriminatory
   As long as procedure was followed, unable to scrutinise the substance of these policies
Ratio: Immigration Act is constitutional; “Canada’s authority to admit immigrants of any or every race of nationality, on
any terms she pleases, is complete”
Concurrence (McPhillips)
   Must read statute in its natural sense: intended to give Canada plenary authority to regulate immigration
   S is a British subject by birth and in Canadian waters – but British subjects have no higher rights than aliens in coming to
    Canada; only privileged persons are Canadian citizens
   If could not deport undesired persons, ―might be invaded by people of the undesirable class‖
   Deportation power ―is a power of preservation of the nation‖
   S not singled out any more than anyone else denied entry
   S‘s ―race‖ is fundamentally different; ―better classes of the Asiatic races‖ don‘t leave, so only the undesirables seek immigration
    of Canada; Canada‘s laws are unsuited to them; they ―menace … the well-being of the Canadian people‖; Parliament is
    safeguarding Canada
Notes: Imperial Parliament couldn‘t have turned these persons away – so how could a subordinate Parliament (Canada‘s) do so?
   MacDonald responds that BNA Act gave plenary power to Canadian Parliament
   McPhillips concurs, arguing that Canada‘s immigration power is ―the power of preservation of the nation‖ regardless of an
    Indian‘s status within the Empire, and including considerable racist discourse

Arguments other than Parliamentary sovereignty to justify or strike down such laws
   Reliance by immigrants on particular policies (e.g., the level of head tax before it was drastically raised)
   Charter claims (though s. 33 could still trump)
   Argument for protection of minorities as a founding principle (from Secession Reference) on par with democracy and rule of law
    (i.e., Parliamentary sovereignty)
   When Parliament isolates a specific group, difficult to imagine that this Parliament is acting on behalf of this group
          o   We tend to think that your obligation to obey the law trumps your obligations to other persons
          o   Sovereignty is to be exercised for the benefit of all people (this may distinguish sovereign authority from naked power),
              so perhaps sovereignty shouldn‘t apply
          o   So difficult to find a moral reason why Japanese and Chinese immigrants should have obeyed (rather obeyed out of
              fear: a ―your money or your life‖ scenario) – but how this translates into a legal argument is difficult to imagine
   A relationship between Parliament and the people that could be described as fiduciary, requiring Parliament to act on the basis of
    everyone‘s interest

Timeline
   Ongoing
         o  Deportations became more common and naturalisation certificates could be revoked (―powerful tool in silencing foreign
            labour agitators and political activists‖)
         o  Immigrants could be deported for being a ―public charge‖ (affected the poor and disabled)


                                                            Page 4 of 74
Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
   1872: legislation denied entry to ―criminal, or other vicious classes of immigrants‖  broad discretion to immigration officials 
    more categories added over the years
   1895-1906: Clifford Sifton as Minister responsible for immigration; credited with settling the Prairies but also with discriminatory
    policymaking (British and northern European farmers preferred)
   1900-1914: systematic discrimination and racism against Chinese, Sikh, Japanese, Indian, and black immigrants
   1900: head tax on Chinese immigrants
   1906: Immigration Act expanded categories of prohibited immigrants, gave government wide grounds for deportation within two
    years of landing
   1907: Japan voluntarily limited emigration to Canada
   1908: ―continuous journey‖ rule enacted
   1908: Canada-US border inspection service established
   1910: Immigration Act gave government huge discretion to regulate immigration through Orders in Council
   1913: immigration hits record levels
   WWII: intensified discrimination against Japanese-Canadians; Canada did not respond to pleas for asylum from Jews fleeing Nazi
    Germany
   1947: continuous journey rule repealed
   Post-WWII: fear of communism used to justify exclusion and deportation
   1967: point system introduced
   1950s-90s: piecemeal development; 1976 Immigration Act amended repeatedly and ad hoc
   2001: Immigration and Refugee Protection Act (IRPA), implemented by IRPA Regulations and supplemented by policy and
    program manuals drafted by Citizenship and Immigration Canada (CIC: non-binding, but guide officials)

Shift towards non-discriminatory criteria
    Post-WWII, Canada started to accept refugees, but didn‘t sign on to 1951 UN Refugee Convention (establishes international
     framework for treatment of refuges) until 1969
    Slow but sure reform of immigration following WWII to eliminate exclusionary and racist components of immigration policy
    Human Rights Revolution
         o    Realisation of the horrors of WWII, and auto-inquiry about how to prevent future horrors
         o    Contrast between democracies and communist states, forcing democracies further towards open borders and policies
         o    Canada supported this discourse and became a thriving middle power
         o    UN membership  limits or constricted power over state sovereignty
    But we still see non-Canadians as strangers, to whom we owe no obligations other than what our charitable feelings identify
    Increasing recognition of Aboriginal title

IRPA Framework
   Immigration officials (IOs) of Customs and Immigration Canada (CIC) make first-level decisions on visas and applications
    to immigrate (“facilitation”)
   Canada Border Services Agency (CBSA, part of Ministry of Public Safety and Emergency Preparedness) addresses the
    “enforcement” side
   Immigration and Refugee Board (IRB) is an independent tribunal with three divisions (addresses status decisions that
    will determine whether people can have PR status)
         o    Immigration Division (ID): adjudicates IO reports on inadmissibility and reviews detention orders
         o    Immigration Appeals Division (IAD): hears appeals from refused applications for sponsorship of family class
              members, and some removal orders; does so on de novo basis (can retry entire case incl. all facts; parties can submit
              new evidence and arguments)
         o    Refugee Protection Division (RPD): determines applications for refugee status by inland refugee claimants (refugee
              applications from abroad go through normal immigration channels)
   Subject to Judicial Review by FC-TD (sometimes a leave requirement)
   Appeal to FCA possible if FC-TD certifies a question of general importance

Criticisms of the IRPA framework
    Differential impact on immigrants and refugees from countries of the South
    Distribution of immigration offices aboard favours Northern immigrants (4 immigration posts in Africa, 10 in Europe; fewer
     in Asia than its accounting for 50% of our immigrants would suggest)
    Not quotas, but “targets” with respect to geographic areas
    Favours young, healthy, skilled, and educated persons  discriminates against third-world applicants but
     particularly against women (most women come to Canada as sponsored immigrants; most men as independents)
    ―Right of Permanent Residence Fee‖ ($975) is an arbitrary tax on non-citizens and a financial barrier
    Government officials have wide discretion  discriminatory patterns of deportation
    Visa requirements are more stringent for developing countries; visas are expensive
    Requirement that refugees produce ―satisfactory identity documents‖ is difficult
    More security-conscious view of immigration lately
    Immigration has changed Canada, but there is still room for progress towards equity

Mack v. Canada (Attorney General of Canada) (2002), 60 O.R. (3d) 737 (CA): CB 28-32
Facts: Head Tax descendents sought Charter-based relief
Issues: (1) Does ongoing stigma-based discrimination violate Chinese-Canadians‘ Charter rights? (2) Does government‘s negotiation
of redress with Japanese-Canadians discriminate against Chinese-Canadians contrary to the Charter? (3) Does customary
international law reveal discrimination against Chinese-Canadians?
Holding: (1) No. (2) No. (3) No.  Canada
1. Ongoing discrimination
                                                            Page 5 of 74
Immigration and Refugee Law (Fox-Decent)                                                                 Dorian Needham (Fall 2007)
   Charter cannot apply retroactively or retrospectively
   If an act took place before Charter took effect, Charter cannot apply
   If an act continues to impose its effects today, it is susceptible to Charter scrutiny
   Here, the most significant feature is the discrete past event, not the current condition – and the Chinese Immigration Act was
    repealed in 1947
2. Japanese-Canadian redress
   Alleged discrimination flows from impugned historical legislation, not from Japanese-Canadian redress
   No discrimination based on Law test: not based on stereotype or exclusion that reduces worth or dignity; redress towards one
    group is not discrimination towards another (unrelated)
3. Customary international law
   Head tax laws were constitutional at the time and did not violate contemporary principles of customary international law
   Even equitable principles cannot reach back this far
   Even if customary international law were found, domestic law would prevail
Ratio
   Charter cannot apply retroactively or retrospectively
   Redress towards one group is not discrimination towards others
   Discrimination that was contemporarily constitutional is not unconstitutionally discriminatory today
Notes
   Chinese-Canadians sought estimated $23M (plus interest), of which in one year Canada spent $10M on promoting European
    immigration at the time
   Canada saw its redress to Japanese-Canadians as an ex gratia payment, not as legal restitution
   M challenged on behalf of other Chinese head-tax descendents, but action never got to the merits of the case, because A-G filed
    a motion to strike for lack of cause of action (even if facts are true, you can‘t sue because it wasn‘t illegal at the time)
   Harper government has since apologised and offered compensation


                 C. Theoretical Perspectives: Sovereignty and Open Borders
                                                                                                                  CB 41-42, 55-106

                                                            Key questions
   Would we choose open borders from behind the ―veil of ignorance‖?
   Is citizenship the (largely unearned) modern equivalent of feudal privilege?
   Should state borders be just like provincial (or EU) borders?
   Would open borders create ―1000 petty fortresses‖?
   Is ―closure‖ necessary at some level?
   Are states like clubs or families?

   Law of migration is about borders (between states, between citizens and strangers, national social borders)
   Borders exist to those who enforce them, and thus matter to those who wish to cross them

Sovereignty
   1649 Peace of Westphalia established a system that persists today: rulers with exclusive power over a territorially
    bounded jurisdiction, abstaining from interfering in others‘ internal affairs, with inviolable borders
   But very few controls on transboundary movement existed in the West until late 19 th c. (deceleration of colonial
    expansion, German/Italian identity consolidation)
   Sovereignty conceived as the ability to police geopolitical borders – justified by corollary with ownership over
    property: exclusion is a right, and admittance is a choice (thus even surrenders of sovereignty for, e.g., treaties, are
    themselves acts of sovereignty)

Rawls
  Pre-Rawls, utilitarianism dominated public policy discourse
  ―A Theory of Justice‖: a Kantian, rights-based approach to distributive justice
  Develops theories for a closed state, ignoring globalisation etc. and their incentive effects
  Liberal egalitarian: believes initial endowments and opportunities (and their marketability) to be relatively
   arbitrary from a moral point of view; these things do, but shouldn‘t, determine our success in life
  Borrowed his “veil of ignorance” terminology from Harsanyi, who had concluded that it would lead to utilitarianism because of
   decreasing marginal returns
  Derives two principles from the veil
        o   Equal liberty: everyone in political society should equally enjoy all the same civic and political freedoms as everyone
            else (i.e., ―first-generation freedoms‖ in HR-speak) – not social and economic freedoms
        o   Difference principle: people will do better over all if a certain amount of inequality is permitted, but inequalities are
            permitted only to the extent that they favour or somehow benefit the least advantaged
  Utilitarians permit violations of rights to benefit the overwhelming majority; Rawls refuses this argument

Carens, ―Aliens and Citizens‖: CB 55-62, 78-83
   Expansion of Rawlsian principles to a global scale, where inequalities exist across state borders
   Introduction
         o   Moral primacy of the individual and moral equality of all individuals are normative points of departure
         o   On what grounds can/should ordinary and peaceful people be kept out?


                                                           Page 6 of 74
Immigration and Refugee Law (Fox-Decent)                                                                     Dorian Needham (Fall 2007)
        o    Traditional view: power to exclude aliens is inherent in sovereignty and essential for a political community;
             state can exercise this power for national interest but do not have to
        o    Carens challenges this view, most strongly when applied to migration from third to first world
        o    States of the North see citizenship as similar to feudal privilege, an unjustified, birth-based status that
             cannot be changed
        o    Restrictive citizenship is hard to justify under scrutiny
   Migration and the Original Position
        o    Rawls‘ original position useful for thinking within a society but also across societies – questions whether background
             conditions of interactions are fair
        o    Objections
                      Veil of ignorance depends on particular moral understanding not shared by all societies – but the view need
                       not only apply to those who share it (reject their views but still consider them equal)
                      Only makes sense where people already share liberal-democratic values – but offers a means to think
                       about justice even where views differ but people still want to live together
        o    Rawls placed political freedoms ahead of economic freedoms because they are more important
        o    Freedom of movement goes with the first principle of equal liberty, which has lexical priority over the difference
             principle, and thus can only be trumped by other freedoms of the same order (e.g., public order)
        o    Ideal theory
                      Historical obstacles and danger of injustice are ―assumed away‖
                      Some reasons for maintaining the state disappear
                      Not all linguistic/cultural/historical differences need to disappear – these would inspire communities
                       comparable to modern states, but state sovereignty to be constrained by principles of justice
                      Freedom to move within a society considered fundamental for the same reason that freedom to
                       move between societies ought to be
                      Original position would therefore require free movement  no migration restrictions
                      Liberty may be restricted for liberty’s sake – so some restrictions justified where there is a ―reasonable
                       expectation‖ that unlimited immigration would damage public order, based on evidence acceptable to all
                      So: restrictions to be based on ―unintended cumulate effect of individually just actions‖
                      Nobody would give up political freedoms for a little more economic welfare
        o    Nonideal theory
                      Vast economic inequalities amongst nations, disagreements about nature of justice, possibility of armed
                       invasion or covert subversion, many states deprive own citizens of liberties
                      Strengthened case for state sovereignty – but restrictions still need to be equally well justified
                      Wrong to argue that immigrants from less liberal societies would weaken liberal (read: just) ones
                      Size of potential demand justifies only that level of restriction necessary to maintain public order
                      Liberty‘s priority holds true here – so those seeking immigration because they’ve been denied basic
                       liberties should have priority over those seeking economic opportunities
                      Be wary of hypocritical uses of arguments like ―we must restrict immigration to benefit the worst off‖: the
                       worst-off may not have the resources to leave
                      We shouldn‘t give up political freedoms for a little more economic welfare
        o    Conventional arguments for restricting immigration
                      Those born in a place are more entitled to benefits of citizenship – but this entitlement is arbitrary
                      Immigration reduces economic well-being of current citizens – but statistics show otherwise
                      Effects on particular culture/history of recipient society – but this is irrelevant if there is no threat to liberal
                       democratic values
                      Public-order arguments, e.g., the argument that too many people arriving would disrupt public order – but this
                       isn‘t acceptable amongst, e.g., provinces
   The Communitarian Challenge
        o    Liberal theories not designed to deal with question about aliens – assume context of sovereign state
        o    Social institutions and policies must respect all humans as moral persons – requires recognising freedom
             and equality of all
        o    Summary of Walzer
                      Right of communities to self-determination
                      Right to exclude constrained by: (1) principle of mutual aid where costs are not high; (2) those admitted must
                       be entitled to acquire citizenship; (3) new states or governments may not expel existing inhabitants even if
                       the rest of the population considers them alien
        o    American states call into question Walzer’s claim that distinctiveness depends on closure: distinctiveness is
             more complex than this
        o    If freedom of movement within states is so important, how can we restrict it between states?
        o    Neighbourhoods/clubs/families analogy fails, because private sphere (freedom of association) is different
             from public sphere (equal treatment)
        o    Equal treatment applies only to those already members of the community – but there is no moral reason
             for this
        o    Evolution of immigration rights reflects equal treatment of individuals in the public sphere
        o    Liberal culture doesn’t allow us to dismiss aliens as others
        o    Recognising particularity of our own culture should not prevent us from making normative claims, but respect for
             diversity of cultures does not require us to abandon all claims about what they should do
   Conclusion
        o    Those who choose to cooperate together in a state have special rights and obligations that noncitizens do not
        o    Respecting choices and commitments of others flows naturally from commitment to equal moral worth
        o    Exclusion of those who wish to join is not compatible with equal moral worth

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        o    Open borders would threaten communities’ distinctiveness only because we assume that so many people
             would move if they could – but most people do not want to move
        o    Open borders would change the character of the community but not leave the community without character

Trebilcock
   Supports open borders for economic reasons (maximising aggregate welfare)
   Empirical history shows that immigrants almost always provide a net benefit to their adopted country
   What we tend to worry about is immigrants taking advantage of our welfare state – so they should post an insurance bond,
    which is pooled with others and used to pay for any care they then need
   So why not just let people come and contribute, as long as recipient countries protect themselves against the potential
    downside?

Synthesis and discussion
   We‘ve inverted where things stood in the 19th c., when labour moved freely and capital/goods didn‘t – now it‘s the opposite
   Economic arguments cut both ways: economists maintain that free movement of everything makes everyone better off, but
    desire to accumulate and transfer wealth incents many people to act for closure
   When the EU moved to open borders, there was much less migration than anticipated (e.g., even the PolandUK surge was
    short-lived)
   Open borders would likely not inspire throngs of people to move – moving is inconvenient and difficult, and requires
    overcoming a ―natural‖ attachment to place
   Brain-drain problem for donor countries needs to be addressed

Walzer, ―Membership‖: CB 62-78
   Justice does not require a community to accept anyone
   Members and Strangers
         o  Community: group of people committed to dividing, exchanging and sharing social goods, first of all among themselves
         o  Primary distributed good is membership in a human community
         o  Those without membership anywhere are stateless (dangerous condition)
         o  Whom to admit? How to choose?
                     Conventional answer: current members choose, in accordance with own understanding of what membership
                      means and what kind of community they want to have
                     Choices are governed by relationships with strangers
         o  Principle of mutual aid stretches across frontiers – doesn‘t depend on prevailing view of membership in a
            particular society
         o  A single ―global‖ state or no state at all are the only two forms of simple equality – but as long as there are two
            distinct groups, admissions decisions have to be made, and are not constrained by any widely accepted
            standard
         o  Similarities between strangers and descendents, so should restrictions be similar?
         o  At some point, we need a nation, a sense of a community that is “ours”: we resolve this by constructing states
            like clubs, which have terms of membership
   Analogies: Neighborhoods, Clubs, and Families
         o  Admission policies shaped partly by arguments about economic and political conditions in host country, partly about
            character (―destiny‖) of host country, partly about character of countries in general
         o  Few of us have direct experience of what a country is or what it means to be a member
         o  Neighbourhoods
                     Random association to which the nation is indifferent
                     Only if patriotic sentiment has a moral basis, if cohesion requires obligations, if there are members
                      and strangers, do state officials have to worry about success of own culture and politics
                     Authoritarian regimes thrive in the absence of communal cohesion  utilitarian argument against mobility?
                     Perfect labour mobility will be resisted at the local level
                     “if states ever become large neighborhoods, it is likely that neighborhoods will become little
                      states” (if the state borders were so open, we‘d have ―1000 petty fortresses‖: people would self-ghettoise in
                      response)
                     Nationalisation of welfare opens the neighbourhood communities to whomever wishes to come in
                     Neighbourhoods can be open only if countries are at least partially closed: we need “closure” at
                      some political level to maintain the larger (sense of) community
                     Distinctiveness of cultures and groups depends upon closure, without which it is not a stable feature of human
                      life – if distinctiveness is valued, closure must be permitted somewhere
                     Right to control immigration does not entail right to control emigration (restraint on exit replaces commitment
                      with coercion)
                     Open emigration doesn’t entail open immigration: immigration and emigration are “morally
                      asymmetrical”
         o  Clubs
                     States’ right to act in certain areas doesn’t render their actions right: can argue about admissions
                      standards through moral appeals
                     Distribution of membership in an ongoing society is a matter of political decision
                     New membership, exclusivity, activities, etc. are decided by current members; outsiders cannot impose
                      themselves on the clubs to become members
                     We tend to think of clubs as legitimate entities in society – so why not think of the state like this?
         o  Families
                     But citizens often feel compelled to open their country‘s doors to certain groups (e.g., families of labourers)

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                     In this respect, states are more like families, where connections to unknown outsiders matter
   Territory
         o    Nationality principle‘s one significant limit: recognition is reason to permit immigration, but nonrecognition is
              no reason for expulsion
         o    People have a right to live somewhere – not in a particular place, but the right is enforceable against the
              state (whose claim to territorial jurisdiction derives from this individual right to place)
         o    Important possibility: some to be denied full membership (citizenship) because of their nationality
         o    Open neighbourhoods together with closed clubs and families are the structure of domestic society – why
              not extend to global society?
         o    Difficulty: national communities sustained over time by geographical coexistence (link between nation and land) 
              need for a territorial state with boundaries
         o    Territory is (protected) living space
         o    Mutual aid is more coercive for political communities than for individuals because wide range of benevolent
              actions is available to the community that only marginally affects present members
         o    Turning mutual aid into a more stringent charge on communities than on individuals shows that exclusion rights depend
              on territorial extent and population density of particular countries
   ―White Australia‖ and the Claim of Necessity
         o    If there is superfluous land, claim of necessity would force some communities to choose whether to yield land
              to maintain homogeneity, or to yield homogeneity to maintain land
         o    Collective version of mutual aid might require more limited and complex redistribution of membership
              and/or territory
         o    Community could decide to cut off immigration but export wealth – to share wealth with strangers inside or outside the
              country?
         o    Immigration will remain an issue even after distributive justice claims have been met on a global scale
   Refugees
         o    Their claims cannot be met by yielding territory of exporting wealth – only by taking people in
         o    We have obligations towards some refugees that are similar to those toward fellow nationals (e.g., people
              we have turned into refugees)
         o    Can also help those oppressed by others
         o    If numbers are small, mutual aid will generate similar practical results
         o    Where there is no connection with particular victims, no requirement to choose them over other needy
              people – so refugees must appeal to the “sense of relatedness and mutuality”
         o    Everyone must have a place to live where a reasonably secure life is possible – but can‘t enforce this right against
              particular host states
         o    Cruelty of this is demonstrated by asylum, designed for the sake of individuals but not useful when numbers are larger
         o    So: moral conduct of liberal and humane states can be determined by immoral conduct of authoritarian and
              brutal states
         o    Must grant asylum for two reasons
                       Denial would require use of force against helpless people
                       Numbers likely to be small  absorption easy

Synthesis and discussion
   EU has opened its internal borders – but simultaneously tightened its citizenship requirements (redefinition of the boundaries of
    the relevant political community)
   US has free movement between its individual states, but is building external walls around the country
   Guest workers are amongst the most vulnerable, as they can be deported at any time before the ―vesting period‖ for
    naturalisation arrives – Walzer argues against this, saying that once you‘ve let someone in, you have to take them warts and all
   Walzer‘s clubs analogy isn‘t appropriate – we don‘t let many private clubs impose certain limits now, and public entities
    definitely forbid it as denying the equal moral worth of every individual

                                                             Key questions
   Is membership in the state based on mutual consent?
   Does liberal neutrality imply open borders?
   Is the state just a ―self-help device for moral individuals‖?
   Would people behind the veil of ignorance really opt for unlimited freedom of movement?
   Is there was no ―minority X‖ in a state, could that (otherwise liberal) state discriminate against X in its immigration policy?
   Does national/foreigner map onto the self/other distinction?
   Can liberal theory tell us anything about how many people to admit?
   Why does Dauvergne think that humanitarianism lies at the foundation of western states‘ immigration policy?

Galloway, ―Liberalism, Globalism, and Immigration‖: CB 83-93
    From a ―proper‖ liberal perspective, we can in fact make sense of the idea of a liberal state, and we can in fact justify the
     borders that disrupt one state from another (commitment to liberalism need not imply commitment to open borders)
    Response to Carens, who in turn builds on Rawls and argues for fully open borders
    Introduction: claim that each person has the right to choose country of residence does not issue from liberal principles
    The Original Position and Authority
          o   Liberalism committed to autonomy does not require individual to sacrifice own plans for the sake of those
              others without the capacity for an autonomous life
          o   Liberals do not demand that people significantly abridge their opportunities to follow their own desires or interests in
              the name of sacrifice


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         o   Rather, liberalism involves a commitment generating natural duties: negative duty not to interfere with
             autonomy of others (same forbearance from everyone), and positive duty of mutual aid (variable)
        o    Citizens owe duties to each other based on relational ties: reasonable preference can be shown to citizens over
             non-citizens
        o    Carens wants a society without closed societies or admission criteria
        o    Impact on excluded party is morally relevant but not of undue concern especially if she has other options –
             if these options are not as meaningful to her, this is part of her own choice
        o    Since providing a place to her would be costly to others, no reason to make one available
        o    Liberal commitment to individuals as morally equal does not require that every individual be shown the same concern
             (can privilege those with whom one has formed relationships)
        o    Rejects Carens‘ claim that states should not be allowed to do anything having a negative impact on others‘ life plans
        o    Carens‘ interpretation of Rawls‘ original position allows three choices: anarchist, multiple open states, and multiple
             closed states – but ignores possibility of choosing no states, so doesn’t have to explain why people should
             obey political authority in the first place, or what grounds the claim to authority over a particular territory
        o    Possibility of this ―anarchist‖ option changes our choices behind the veil of ignorance, and we would keep in mind
             moral capacities:
                       Comprehensive conception of the good (what everyone would like, keeping in mind the fact of pluralism):
                        self-interest
                       Comprehensive conception of the reasonable (what everyone could agree on, without knowing what the
                        ―good‖ would be): limited (by cost and self-interest) altruism
        o    Originalist looks to balance self-interest with altruism – and would see the state as a ―self-help device for moral
             individuals‖
                       State as a voluntary association of individuals that has (like individuals) certain limited duties to others where
                        the risks and costs borne would undermine the ability of those within the state to live autonomous lives
                       Originalist would select the state because it promotes self-interest, and may also help members to
                        promote others’ interests (secondary effect)
        o    Originalist would recognise that it is difficult to maintain the self-interest/altruism balance if one makes the
             decisions oneself (too subjective) – so that state has a role
        o    So the alien has no right to membership (open borders impose excessive costs on people, pushing altruism to the
             extreme)
        o    If individual members have no altruistic duty other than providing non-costly assistance in times of need,
             creating an organisation like a state cannot generate more rights
        o    Only if the grant of membership is a necessary means of providing the required assistance, or if failure to
             grant it is an attack on her autonomy, would a stranger have a right to it
        o    Individuals should still be able to go beyond state duty to help others, so private sponsorship should be allowed
             (this is the narrow sense in which liberalism requires open borders – but does not ground a general right to admission)
        o    Cannot draw general inferences about aliens‘ rights based on automatic membership of newly born children, because
             children’s citizenship is instead grounded on their dependence on their parents
        o    Providing the most efficient aid to others is not the reason for constructing a state: at most, strangers can
             demand that others choose an organisation that most efficiently provides aid while not detracting from the capacity of
             each individual to live an autonomous life
        o    Adequacy distinguishes those in need from those who are not: liberalism says that autonomy has been met when an
             adequate number of meaningful options are available
        o    There may be cases where choices are so constrained by circumstantial forces that the only way to grant meaningful
             options is to allow territorial entry
        o    Should reject claims of those who have voluntarily assumed conditions of dependence when assessing claims of
             dependents to whom duties are owed
        o    Liberals would, in considering need, assess the number and significance of options available to that person
   Liberalism and Discrimination
        o    One can be a Rawlsian liberal without being committed to free immigration
        o    Connection between individual self-esteem and discrimination based on, e.g., race or religion, would lead
             us to avoid state regimes with immigration policies that discriminated on these grounds
        o    Exclusion of all foreigners not meeting a non-discriminatory immigration policy does not count as discrimination
        o    National-foreigner distinction is extension of liberal distinction between self and other; states allow individuals to create
             relationships of dependence and interdependence with some others, and the status of those who are excluded remains
             unaltered
        o    Liberal immigration policies should be sensitive to past wrongdoing and effects on the victims (and those who identify
             with her) – but not to idiosyncratic definitions of what amounts to an attack on self-esteem

Kant‘s Perpetual Peace
   Only implication of participation in the global order is that a stranger arriving at the border is owed a duty of hospitality
   Clear to Kant that all the world‘s surface was (or would be) occupied
   For a claim of sovereignty over the world to be legitimate, people seeking to enter states must be granted entry
    through a right (duty?) of hospitality

Synthesis and discussion: does (and should) the state depend on our consent?
   There is no hospitable place you can go in the world that is neither occupied nor claimed by a state today – so in no actual
    sense do we consent to the authority of a state
   In any given state, there will likely be some people who do not consent – how does this affect the legitimacy of the state‘s (or
    the majority‘s) ability to exclude others?
   Fact of receiving an unsolicited benefit does not necessarily empower the state to demand an obligation

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   Most people think that the only path to state legitimacy is express consent
   Given that we have states, how can we legitimise state power over the unwilling?
   Explicit conferrals of consent on the state are almost too rare to consider
   From the point of view of liberal theory, we want some freedom of movement, but not an unlimited freedom of movement
   Does Galloway‘s argument assume that many more people would immigrate to Canada than actually would?
   Galloway shares part of Walzer‘s concern that liberals will not deny individuals the possibility of forming organisations or
    associations, and the ability to reject heroic sacrifice for others
   But discrimination – though reasonable in theory – can undermine self-esteem

Dauvergne, ―Amorality and Humanitarianism in Immigration Law‖: CB 94-106
  Introduction: liberalism fails to answer “how many is just”, so the question is thus amoral
  The Liberal Position
        o   Classical liberal theory does not provide an standard for assessing whether particular immigration laws are
            just, because it assumes a political community and considers internal questions of justice, but cannot span
            national boundaries (the closed border is an assumption on which the theory is built)
        o   Dworkin
                     Closed borders are assumed to be a virtue
                     Justice and fairness are assessed within a particular group
                     When determination of justice starts after the community is constituted, it cannot also be used to determine
                      the membership of the community
        o   Closed-border advocates say that for a border to be assumed, it must be a closed border
        o   Walzer
                     Question of community membership precedes elaboration of distributive justice concept
                     Membership not subject to justice standards
                     Closure of communities necessary to foster distinct cultures and characters
                     States are free to take strangers or not
                     BUT states are not like neighbourhoods (involved in governance), families (democratic), or clubs (people need
                      states for basic conditions of life: “statelessness” is different from “clublessness”)
                     Walzer privileges community as a value in and of itself and membership in a community as a value:
                      communitarianism modifies the liberal commitment to the moral worth of the individual
                     Distributive justice cannot be applied between members of a community and outsiders
        o   Galloway
                     Not communitarian; claims that closed borders are consistent with pure liberalism
                     Human dignity model of equality as appropriate measure of non-discrimination for the immigration context
                     BUT his description of the us/them distinction as neutral is difficult to accept: assumes that the
                      “us” group has a superior claim to entitlements
                     Too narrow to provide a standard of justice responding to many of the most difficult practical questions
        o   Theoretical argument about open/closed borders has humanitarian admissions as its focus and responds
            best to these admissions
        o   Accepting a defence of closed borders undermining universal equality is unacceptable to many liberals  public support
            for immigration
        o   But open-borders arguments are equally difficult to accept
        o   Carens
                     Open borders are a self-evident conclusion of liberal theory
                     Liberalism as a moral theory, rather than a political and moral theory
                     BUT immigration is foremost about political organisation
                     Carens ignores liberal explanations of societal formation
                     Members join societies to form certain benefits, and all gain – this gain distinguishes members from outsiders
        o   Classical liberal theory does not provide an answer as to whether the community‘s borders should be open or closed 
            search for ―just‖ immigration law is futile  immigration is amoral (not immoral)
        o   Moral claims are personal and cannot reach political consensus
  A Central Tension in Liberalism
        o   Fishkin: core liberal commitments to impartiality and individuality are in irresolvable conflict
        o   At some point, admitting more people would decrease the standard of living of existing members
        o   Moving the argument away from liberalism is difficult because liberalism is hegemonic
  Refugees and Other Immigrants
        o   Most popular outcry is about fair immigration law, but most theoretical work is about refugee admissions
        o   Open- and closed-border arguments converge on principle of mutual aid – so the focus is on refugees, even though
            the majority of those admitted are not refugees but immigrants
        o   Mutual-aid principles provide little real policy guidance even for refugee law – just pushes the question
            from whether to how many
        o   Many immigrants are ―needy‖ in liberal terms, but not legal ―refugees‖ – too easy to consider one group needy and the
            other not
  Humanitarianism in Immigration and Refugee Law
        o   United attitude of western states towards immigration is humanitarianism (outsiders can‘t enter as a right, nor
            have a say in any of the terms by which they can enter)
        o   Liberal humanitarianism based on inequality, rather than justice – emphasises beneficence despite ostensible derivation
            from duty
        o   Humanitarianism and justice are not the same, and this difference explains liberalism’s failure to provide a
            standard for immigration law


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         o   Humanitarianism is central to immigration and refugee law because of liberal consensus about mutual aid
             (what ―we‖ can give to ―them‖: reinforces differences)
         o   Humanitarianism is very flexible – does not provide principled guidance about whom to admit and when
         o   Successful arguments rely on impulse towards heroism (doing more than is necessary)  difficult to make
             arguments that more non-humanitarian immigrants should be admitted
         o   Liberalism as too elastic a theory to provide hard-and-fast answers about what constitutes an appropriate
             number of immigrants to let in, or method for letting them in

Synthesis and discussion
   If there is a minority X within a country and you deny entry to other members of minority X, it is insulting and demeaning to the
    self-esteem of those citizen members of minority X – but what if there is no one from X in the country? (admittedly, this is a
    hugely theoretical argument, given modern globalisation)
   All of us as persons differentiate ourselves with reference to others; Walzer says that the state is much like this – Dauvergne
    refuses this, arguing that political communities can form without reference to others


                                                             D. Status
                                                                                                       CB 109-116, 122-130, 134-138

   Canadian immigration law defines and circumscribes individuals‘ rights to enter, remain, work, and study in Canada – by
    statuses with attached packages of rights
   Discrimination across classes (citizen, PR, FN) said to be justified under Charter s. 6

                                                              Key questions
   What if a citizenship applicant failed the residency requirement because she had to take a job to accompany a spouse?
   Is s. 8 of the Citizenship Act discriminatory (must apply if born outside to a parent born outside Canada)?
   Is the possibility of revocation of citizenship for naturalised citizens discriminatory?
   Should citizen children be able to sponsor their parents (cf. Langner, right to family life under the ECHR)?
   Should long-term PRs be subject to deportation? (cf. Chiarelli, Romans)


                                                           1. Citizenship

Introduction
    Citizenship: unqualified right to enter, leave, and remain in Canada
    Early as 1910: Canadian citizenship became a part of law, but had no effect on civil or political rights; citizenship as a device for
     implementing immigration policies
    Pre-1946: those born in Canada given status of British subjects
    1946: Canadian Citizenship Act identified Canadian population as Canadian citizens instead of British subjects
    Charter does not define ―citizen‖  can the definition by Parliament in the Citizenship Act be challenged?
    Solis v. Canada (2000): ―the concept of citizenship has no meaning apart from statute‖
    IRPA accords same entry/remaining rights to Indians
    Non-status Indians may have free right to enter/remain
    Indians have all rights of citizenship, but are not automatically Canadian citizens (must apply)
    Perhaps non-citizens have an Aboriginal right to enter under CA1982 s. 35

Acquiring citizenship
   Three ways: birth in Canada (ius soli), birth outside Canada to a Canadian citizen (ius sanguinis, citizenship by descent),
    acquisition following immigration (naturalisation)
   Historically qualified by sex and age
   Some who were born in Canada or to Canadian parent pre-1977 Citizenship Act may not have citizenship  amended 2005 to
    some degree
   Successful challenges have depended on applicant‘s ability to convince court hat relevant government action occurred after
    Charter adopted, rather than before – but how to frame the gov‘t action?
   Conrad Black sought to regain his Canadian citizenship to avail himself of a Canada-US treaty by which he could spend his jail
    time in Canada, where he would be eligible for parole 5 years earlier

Naturalisation
   Requirements
         o    18+ years old
         o    Permanent resident with at least 3 years’ “deemed residence” in Canada of the 4 years prior to application
                      Most contestable criterion: see Chen
                      Federal Court has offered conflicting accounts of how the residency requirement is to be determined
                      Most common reason for waiving these is naturalised parents asking Minister for leave on H&C grounds to
                       waive the 18+ years requirement for their children
         o    Adequate knowledge of one official language and of Canada
         o    Not under removal order, subject to declaration of threat to security, or associated with organised crime
   Minister may waive some requirements on humanitarian grounds
   Because citizenship judge works at arm‘s length from Minister, decisions are subject to review at behest of applicant or Minister
   Process: apply to be considered by citizenship judge (appointed by Minister, don‘t belong to courts of inherent jurisdiction); can
    appeal to Trial Division of Federal Court for leave to appeal (this appeal is final)

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   Interested in whether the applicant has become “Canadianised”
        o   Tension between interpretation of being ―Canadianised‖ and the fact that we differentiate between reasons for being
            outside the country – why should it matter why they‘ve been away?
        o   Can reapply after a cooling-off period (1-2 years?)
        o   If our society defines itself as multicultural (and not as a melting pot), what do we expect immigrants to sign on to
            when becoming “Canadianised”?
        o   Do we restrict our conception of multiculturalism to the original French-English divide?
        o   Is a simple 3-year residency requirement enough?
        o   Many of those seeking naturalisation come from more patriarchal cultures where it is expected that women will not
            socialise or integrate themselves  these woman face a huge barrier in becoming proficient in language, knowledge of
            Canada, showing connections with Canada (apartment, bills, property often in man‘s name)
        o   The “Canadianness” criterion is not specified anywhere, but is derived from an interpretation of legislative
            intent
   Generally tough to become a PR, but once a PR, citizenship is fairly easy to get
   Marriage as a ―fast track‖ to PR status

Chen v. Canada (2001), Imm. L.R. (3d) 222 (FC-TD): CB 112-116
Facts: C applied for citizenship, but was 452 days short of the required 1095 days under the Citizenship Act
Issue: does C merit citizenship?
Holding (Nadon): no  Canada
   Did not maintain sufficient ties with Canada during absences to have those absences count as periods of residence
   Purpose of residency requirements is to ensure that permanent residents become “Canadianised”
   Sentimentality shouldn‘t void residency requirements; shouldn‘t pay attention to things like bank accounts, furniture, etc.
   Citizenship Judge accounted for all relevant evidence and gave adequate reasons
   Two conflicting theories of assessing residency requirements, depending on whether absence from Canada can count (Koo) or
    not (Pourghasemi)
   In the meanwhile, will stick with three-years-in-Canada approach  C fails
   Articulates criteria below for assessing absences from Canada
   Whichever test is used, because his absence was so frequent and such a priority that he fails regardless of which test is used
Ratio: criteria for assessing residency requirements in light of absence (from Koo)
   Physical presence in Canada prior to recent absences
   Residency of immediate family and dependents
   Pattern of return to Canada indicating returning home rather than visiting
   Extent of physical absences
   Absence caused by temporary situation (study, employment, etc.)
   Quality of the connection with Canada (more substantial than with other countries)

Denial and loss of citizenship
   People who are born in Canada or to Canadian citizens enjoy an advantage that naturalised citizens do not enjoy
   Complex process requiring Cabinet participation, but if fraud or fault in material circumstances of PR application requested, or if
    security risk found, citizenship can be denied/revoked
   Security risks and criminality
         o   Citizenship Act ss. 19-20 establishes a procedure for those believed to be security risks (involving Minister, Security
             Intelligence Review Committee, and Cabinet)
         o   Serious criminality is ground for denying citizenship, but not grounds for revoking it
   Limited grounds for revocation: false representation, fraud, or knowingly concealing material circumstances
         o   Citizen in question can request that minister first refers matter to Federal Court for final decision
         o   Provisions have been used to deport war criminals (most common cause for loss of citizenship: see Oberlander)
         o   June 2005: House Committee tables Citizenship Revocation report recommending that process of revoking citizenship
             be fully judicialised – hasn‘t happened
   Citizenship Act s. 8
         o   If born outside Canada to Canadian parent who obtained citizenship by being born outside Canada to Canadian parent
             and then turns 28, will lose citizenship unless applies, resides at least 1 year before applying, and registered as
             Canadian citizen
         o   A relic of the pre-1976 discriminatory citizenship requirements
   Renunciation of citizenship
   Canadian children with non-citizen parents
         o   IRPA allows deportation of inadmissible PRs and FNs with Canadian children, but they may apply for exemption on H&C
             grounds
         o   Claims by children that such deportation violates their Charter rights have failed

Langner v. Canada (1995), 184 N.R. 230 (FCA): CB 124-127
Facts
   L couple came to Canada to claim refugee status
   Had two children in Canada who became Canadian citizens
   Refugee claim rejected as not credible
   Deportation orders issued and not contested, but did not include children
Issue: does L couple‘s having Canadian children exempt them from deportation order?
Holding (Décary): no  Canada


                                                           Page 13 of 74
Immigration and Refugee Law (Fox-Decent)                                                                    Dorian Needham (Fall 2007)
   Decision of whether to take children with them is their decision to make in children‘s best interests; Canadian gov‘t has no role,
    so Charter doesn’t apply
   L have no Charter right to remain in Canada
   Children have no Charter right to demand that gov’t not apply immigration laws to their parents
   Children‘s freedoms not at issue: if parents want to move them and family contests this, it‘s a private issue
   No threat to children‘s s. 7 rights
   Child has no right never to be separated from its parents
   Only 19+ year olds can sponsor people – but this isn‘t ageism, because younger children need parents‘ support and can‘t fulfill
    sponsor duties
   Not contrary to Convention on Rights of the Child, which is incorporated into Canadian domestic law and doesn‘t correspond to
    Charter provisions
   Appeal dismissed
Ratio: children’s Charter rights cannot be used to prevent deportation of parents
Comments
   This case decided under old Citizenship Act
   Baker (1999): SCC required immigration officer hearing H&C-based application to consider best interests of child
   IRPA s. 25 now requires that best interest of child be specifically considered
   John (2003): Federal Court allowed that child‘s Charter rights might be affected by parent‘s deportation


                                                   2. Permanent Residents

Charter s. 6(1). Mobility rights.
    (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
Charter s. 6(2) Rights to move and gain livelihood.
    (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
          (a) to move to and take up residence in any province; and
          (b) to pursue the gaining of a livelihood in any province.
Charter s. 6(3) Limitation.
    (3) The rights specified in subsection (2) are subject to
          (a) any laws or practices of general application in force in a province other than those that discriminate among persons
primarily on the basis of province of present or previous residence; and
          (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social
services.

Introduction
    Charter s. 6(2) guarantees permanent residents the right to move to and reside in any province and pursue gaining a livelihood
     in any province
    Charter s. 6(3) subjects these rights to non-discriminatory provincial laws
    Charter does not define the status of permanent resident
    Rights of permanent residents to enter and remain are solely determined by IRPA and its Regulations (cf. citizens, who can enter
     and leave at will)

Acquiring permanent resident status
   Procedure
         o   Apply for PR visa from outside the country
                     Application must be made to immigration office serving the country where applicant is residing
                     Three classes: family, economic (business), Convention refugee
                     Failing these (or alternatively), can apply under s. 25 on H&C grounds
                     One application can cover spouse/partner, and dependent (grand)children
                     Cannot be found inadmissible through police, security, and health checks
                     Any criteria in IRPA can be set aside on H&C grounds
         o   Examination by IO at port of entry  permanent resident status
                     Must have a PR visa
                     Eligibility (job already arranged, connections, etc.)
                     Admissibility (criminality, health, security)
         o   Some can apply from within Canada: live-in caregivers, spouse/common-law partner, permit holder, protected persons
             (H&C)
   Provinces may be granted power to select permanent residents who intend to reside within the province
   Vast majority of people who apply from abroad are in family or business class

Loss of permanent resident status
   On becoming a citizen
   After failure to comply with residency obligation
          o    Citizenship hearings seek 3 out of 4 years‘ residency; PR hearings demand 2 of 5 years‘ residency
          o    If must leave Canada for work with Canadian business or in Canadian public service, or accompanying a spouse who is
               likewise employed, those days will not count against you
   If fail, can be issued removal order
          o    May appeal to Immigration Appeal Division for review of procedural or substantive elements of decision
          o    Order comes into force at expiry of appeal period or when appeal is determined
   So PR status is less than permanent
                                                            Page 14 of 74
Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
   Chiarelli (1992): no breach of fundamental justice in giving practical effect to termination of right to remain in Canada;
    deportation only way to accomplish this; nothing inherently unjust about a mandatory order
   Unsuccessful attempts to argue that removal of PR status violates Charter rights

Romans v. Canada (2001), 281 N.R. 367: CB 129-130
Facts:
   R (PR) resided in Canada since early childhood, has no establishment outside Canada, suffers from chronic paranoid
    schizophrenia and lives on the street
   Family had done everything possible except get him citizenship
Issue: are R‘s Charter s. 7 rights violated by subjecting him to deportation order to a place with which he had no connection or
experience?
Holding (Décary): no  Canada
   State has nearly unfettered ability to decide who can/should remain in Canada – even if this person is morally blameless
Ratio: threat to Canadian society from PR if not removed from Canada outweigh anguish of family and other
circumstances in his/her favour
Comments
   On deportation, he would likely become a street person in his destination country
   Court is not clear as to how the s. 7 interest is engaged – security of the person, or fundamental justice?
   Gist of the judgment is that R will live a crappy life wherever he goes, so why not have him live his crappy life elsewhere?
   But, then again, he broke the law repeatedly
   His parents (and he) had never applied for citizenship – but he would‘ve gotten in


                                                     3. Foreign Nationals

Temporary residents
  ―Foreign national‖ neither a citizen nor a PR (incl. stateless persons)
  Generally, need to acquire a visa (and, sometimes, medical examination): usually issued for 6 mo. or 1 year, and usually only
   renewable by leaving the country (biggest difference from PR visas is the fixed timeframe)
  System has become a bit more flexible with extensions (deemed to have authorisation while waiting for reply)
  Three classes may become temporary residents: visitors, workers, students
  Only becomes a temporary resident after arrival and examination in Canada
  Temporary resident permit may be cancelled at any time (visa subject to Ministerial cancellation independent of
   security/criminality/etc. grounds – discretion usually not exercised, but it exists)
  After continuous residence for a specified period of time (3 or 5 years), may be entitled to become PR
  Can apply for refugee status and stay in Canada while claim being determined

Undocumented migrants
  FN with no recognised status is subject to removal order
  Access to health and social services normally restricted by provincial statute; social conditions often poor
  Estimates of 20-200 thousand people
  Often fear contact with authorities  vulnerable to exploitation within the workforce (though they‘re economically attractive)
  2005: Immigration Minister expressed support for limited amnesty, but complicated by participation of 11 federal agencies
  Since 1960: regularisation programs have been introduced by federal government offering legal status to particular groups of
   migrants


                                                         II. Review
Sources of general principles of public law delineating authority of decision makers in immigration and refugee law
   Constitutional: CA1867 allowed for intergovernmental negotiation of immigration agreements; Charter guarantees basic rights
    and freedoms
   Administrative law: SCC has recently granted leave to appeal to non-citizens challenging the scope of basic principles of
    administrative law
   International law: those exhausting Canadian legal avenues can seek redress before international tribunals; international
    instruments may demand regular reporting from state parties

Types of review
   Mandamus: when a reviewing judge orders a particular decision to be made (rare) or determines what criteria will be used to
    make the decision (more common)
   Certiorari: when a reviewing judge quashes the case and returns it for decision by a different person (most common, as judges
    don‘t have inherent decision to make a Ministerial decision, for which the authority is granted by statute – all the judges can do
    is ensure that delegated power is exercised legally)


                                               A. Constitutional Review
                                                                                                               CB 139-141, 153-168

                                                           Key questions


                                                           Page 15 of 74
Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
   Granting everyone who applies for refugee status the procedural rights from Singh delays deportation of fraudsters by at least 3
    years. Should Canada maintain this policy (cf. Simpson‘s view of Costa Rican applicants, and Wilson J.‘s remarks on s. 1)?
   Should ―everyone‖ be covered by s. 7 if the harm threatened is from another state?
   Does deportation per se really not engage liberty or security of the person? Does this follow from the lack of an unqualified right
    of non-citizens to remain in Canada?
   Per Suresh, in exceptional circumstances should Canada be entitled to deport a person to face immanent torture?

   Division of Powers
         o   CA1867 s. 95 grants federal and provincial legislatures jurisdiction to legislate with regard to immigration, though
             provincial law is inferior; s. 91(25) grants jurisdiction over ―Naturalization and Aliens‖ to Parliament
         o   Pre-Charter, courts offered only jurisdictional analysis
         o   Mangat (2001) confirmed Parliament‘s superiority through double aspect and then paramountcy doctrines
         o   IRPA ss. 8-9 allow for federal-provincial agreements on immigration
   Charter issues: Section 7

Charter s. 7. Life, liberty and security of person.
    Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance
with the principles of fundamental justice.

         o   Section 7 constrains procedural and substantive decision making, so challenges have focussed on both
         o   Singh (below) outlined procedural requirements for those determining refugee claims – since them, eligibility
             requirements, appeal rights, and security-risk-based decisions have been scrutinised

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177: CB 154-161
Facts
    MEI determined that S and others were not Convention refugees
    Immigration Appeal Board refused to allow application to succeed
Issue: are Immigration Act, 1976 procedures for adjudicating refugee claims contrary to Charter s. 7 (i.e., does s. 7 apply to refugee
claimants)?
Holding (Wilson, 3-0-3 concurring): yes  Singh
1. Act‘s scheme
    S does not assert constitutional right to remain in Canada, and CML denies this right to aliens
    Act does provide Convention refugees with limited rights to enter and remain
    When person in Canada determined to be Convention refugee after mandatory enquiry, has right to remain in Canada ―while
     lawfully in Canada‖
    Refugees maybe subject to removal order or departure notice  not ―lawfully in Canada‖  circularity avoided by issuance of
     Minister‘s permit, to be given fairly and in accordance with procedures
    ―Refugees‖ defined by Convention as those fearing persecution and unwilling to return, or those who have no nationality and
     because of events cannot or are unwilling to return
    Convention refugees are entitled to rely on Canada‘s willingness to live up to its obligations
    Act gives no opportunity for refugee claiming to be heard other than through his claim and the transcript of his examination
    Refugee Status Advisory Committee is isolated from refugees, applies policies and uses information to which refugees claimants
     have no access
    Claimants can apply to Immigration Appeal Board, but Board may not allow an appeal in every case
    S et al. claim that they don‘t have a fair opportunity to present their claims or know the case they had to meet
2. Charter application
    Section 7 applies to all those physically present in Canada and thus subject to Canadian law
    Need to determine whether rights claimed are within scope of s. 7
    MEI argues that procedure for detaining and removing immigrants is no different than that for other individuals
    Act gives refugees certain rights not given to others – so does deprivation of these rights constitute deprivation of s. 7 rights?
    Deprivation of ability to escape from fear of persecution should invoke s. 7, but need to determine whether this impairment
     constitutes deprivation
    ―Security of the person‖ must encompass freedom from threat of physical punishment or suffering, as well as freedom from such
     punishment itself
    Jurisprudence says ―immigration is a privilege, not a right‖ – but this is unacceptable with Charter rights
    S et al. are asserting rights within protection of s. 7, so do procedures for determining refugee status accord with
     fundamental justice?
    Fundamental justice requires that, where serious issues of credibility are involved, oral hearing be granted
    Procedure provides inadequate opportunity for claimants to state their case and know the case they have to meet
    Refugee would give sworn testimony as to why he was subject to well-founded fear of persecution and couldn‘t find protection in
     home country; Refugee Status Committee would make a recommendation to the Minister strictly based on written submissions,
     and Minister would usually take the recommendation; no guarantee of an oral hearing
    Board not entitled to rely on material outside the record that claimant himself submitted – but could rely on other sources of
     information (e.g., US DoS country files) without notifying applicant
    Fundamental flaw in Crown’s reasoning was alleging that the process was non-adversarial (Crown admitted that it
     was administrative rather than judicial, but refused to believe that it wasn‘t adversarial)
    S must prove on balance of probabilities that MEI is wrong, but does not know MEI‘s case beyond rudimentary reasons given for
     having rejected his claim
    Board required to reject applications for determination unless it believes that appellant is likely to succeed – so rejection will
     usually precede claimant‘s opportunity to discover MEI‘s case against him

                                                           Page 16 of 74
Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
   This procedure is incompatible with s. 7
   Charter guarantees would be illusory if they could be ignored at administrative convenience; courts required to act in an
    environment respectful of Charter rights
   Violations are not saved under s. 1
   See summary of reasons at CB 160
Ratio
   Convention refugees are entitled to rely on Canada’s willingness to live up to its obligations
   Section 7 applies to all those physically present in Canada and thus subject to Canadian law
   “Security of the person” must encompass freedom from threat of physical punishment or suffering, as well as
    freedom from such punishment itself
   Fundamental justice requires that, where serious issues of credibility are involved, oral hearing be granted
Comments
   One of the first cases SCC decided using the Charter; still considered one of the most important refugee cases in our history
   Beetz‘s concurring opinion avoided Charter reliance by grounding itself in BoR
   Crown relied on ―human intervention‖ / ―human actor‖ principle (from Ks): if you set in motion a chain of events, it‘s your fault
    but you are not responsible if someone else is causing harm (i.e., Canada not responsible for conduct of others in third world)
   Wilson decided that she had to consider this case on Charter grounds because of nature of statutory scheme (which denies some
    people the possibility of an oral hearing)
   Court maintained that legislature has not required a hearing in all cases – so Wilson thought the only way to force the legislature
    to provide a hearing was to declare scheme itself invalid
   Almost always the case that the credibility of the claimant is at issue in determining whether that claimant has a well founded
    fear of persecution (objective threat and subjective fear)
   Courts consistently maintain that oral testimony is the only way to assess credibility, so people have a right to an oral hearing
   Contemporary scheme based on 1976 Immigration Act (totally different from 2002 IRPA)
   Singh prompted Parliament to establish the IRB, including a division to hear refugee claims and another (Immigration Appeal
    Division) to hear family class appeals and inadmissibility appeals – though its jurisdiction is limited

Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711: CB 161-166
Facts
   C (PR) came from Italy as a child, but his parents never processed his citizenship papers
   C became involved in crime, was determined inadmissible and was issued deportation order  appealed
   MEI initiated in camera hearing before Security Intelligence Review Committee (SIRC) focussing on C‘s connections with
    organised crime
   SIRC believed C would engage in organised criminal activity
   MEI issued certificate automatically causing C‘s appeal to be dismissed
Issue: does issuing a deportation order without considering all circumstances of applicant‘s case violate his s. 7 rights?
Holding (Sopinka, 9-0): no  Canada
   Must consider principles and policies underlying immigration law, most fundamental of which is that non-citizens do not have
    unqualified right to enter or remain in the country (CML supports this)
   Parliament can adopt immigration policy and enact legislation prescribing conditions under which non-citizens may enter and
    remain in Canada, and has done so in Immigration Act
   One condition for remaining is not being convicted of an offence entailing a prison term of 5+ years (legitimate, non-arbitrary
    choice involving the public interest)
   All persons who fall in this class have deliberately violated an essential condition for remaining in Canada
   No breach of fundamental justice in giving practical effect to the termination of C‘s right to remain in Canada
Ratio: non-citizens do not have unqualified right to enter or remain in the country
Comments
   Also decided that procedures to be followed by SIRC not inconsistent with s. 7 even though allowed for in camera hearings
   Nguyen v. Canada (1993): Federal Court of Appeal held it not unconstitutional to render certain foreign nationals ineligible to
    make a refugee claim because foreigners have no absolute right to be recognised as political refugees under CML or conventions
    – but distinguished position of someone ineligible to make refugee claim from someone about to be deported
   SCC recently rejected idea that Charter will be triggered only when removal is imminent
   IAD originally set up to hear appeals from IOs re: (in)admissibility, but in late 80s and early 90s, security-based
    deportation/removal orders became automatic – so these deportation orders became part of judicial review cases by the time
    that C‘s 1992 case came up
   After inadmissibility is found, H&C applications can’t be heard – so C couldn‘t appeal to the IRB

Deportation and discrimination
  Should long-term PRs be subject to deportation? Why not subject them to same conditions as citizens (e.g., imprisonment)?
  Does deportation itself infringe the liberty or security interest of a person, irrespective of fundamental justice? SCC‘s says no,
   Fox-Decent says yes (at least their liberty interest, when they‘re not free to return)
  Security
        o    Does the scope of the s. 7 security interest apply outside Canada? If not, perhaps deportation doesn‘t infringe this
             interest
        o    If s. 6 didn‘t exist, citizens could be deported – and they may have no more or less attachment to Canada than Romans
             and Chiarelli
        o    For non-refugees (e.g., Romans, Chiarelli), their s. 7 interests are not considered to be engaged by deportation
             to a place they’ve never seen
        o    Fox-Decent: don‘t pretend that deportation doesn‘t infringe s. 7 interests, so deal with it under ―fundamental justice‖ or
             s. 1

                                                           Page 17 of 74
Immigration and Refugee Law (Fox-Decent)                                                                 Dorian Needham (Fall 2007)
   Liberty
        o  Assuming that deportation would be to a first-world country with a good HR track record, is the liberty interest
           engaged?
       o   ―Liberty‖ traditionally held to be the freedom to make significant life choices – but can‘t deportation to a nice country
           still be considered an infringement of this?
       o   Heywood (1994)
                     Specific convention of Criminal Code prevented anyone convicted of a sexual offence from loitering around
                      places where children would play
                     No argument that liberty interest was infringed – only question was whether infringement was consistent with
                      principles of fundamental justice (not overbroad)
                     Here, court concluded that law was not sufficiently tailored – many other ways to have drafted the legislation
                      more clearly
                     If this infringed Heywood‘s liberty interests, how could deportation not do so?
       o   Section 7 was written with criminal law in mind, and renders s. 1 almost redundant (s. 1 is applied in other cases of
           infringements of rights) – SCC has never found a violation of s. 7 not in accordance with fundamental justice to be
           justified under s. 1 (see Suresh and Charkaoui in Section VI(E) below)
       o   The recently established no-fly list may well prove a test of the liberty interest, when someone who needs to travel for
           work is put on the list
   Medovarski (2005)
       o   Confirmed doctrine that non-citizens do not have an unqualified right to enter and remain in Canada
       o   Deportation in itself cannot be held to infringe any of the s. 7 interests of non-citizens

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 166-168
Facts
   Gov‘t learned that S (refugee applicant) was associated with Tamil Tigers, and disqualified him from making a refugee claim
   Minister issued a ―danger opinion‖ (alleging that Suresh was a danger to Canada), requiring him to weigh the danger to Canada
    against Suresh‘s potential torture on deportation
Issue: is this provision contrary to the Charter?
Holding (Court): no  Canada
   Canadians do not accept torture as fair or compatible with justice (fundamentally unjust)
   Canada was party to international agreements forbidding deportation to torture in all cases (an absolute convention, not subject
    to reservations)
   Guarantee of fundamental justice applies even to deprivation of s. 7 rights by actors other than our government, if there is
    sufficient causal connection to implicate our government
   Extraditing a person to face torture would be inconsistent with fundamental justice
   Canadian jurisprudence does not suggest that Canada may never deport a person to face treatment elsewhere that would be
    unconstitutional in Canada – must balance all interests (will usually come down against deportation in this case)
Ratio
   Deportation to a country where life or freedom would be threatened is not per se unconstitutional
   Determination whether the return of a person to face danger would violate principles of fundamental justice needs
    to be made on a case-by-case basis considering all relevant circumstances
Comments
   This produced the “Suresh exception”: Court indicated that there might be future situations so exceptional that individuals
    could be deported to torture
   It may not be plausible to imagine scenarios where the Suresh exception would be applied, because it would be admitting that
    our prisons don‘t work (otherwise, could just incarcerate the person – though it might be for life on a security certificate)
   Canada will deport to legal systems that are similar to ours, even if penalty that could be assigned is not one that we would
    accept (e.g., we extradite people to the US who might face the death penalty) – but would we deport to similar punishments in
    dissimilar systems?
   In international law, a state cannot state non-compliance with its domestic law as justification for breaching international law
   Dualism (applies to Canada): two levels of legality (international and domestic) at work; in the domestic realm, Canadian law
    supersedes; if Parliament has not explicitly incorporated a treaty into domestic law, domestic law still overrides (otherwise
    Executive, in ratifying a treaty, would be legislating) – instead, we use international law to help interpret domestic law


                         B. Administrative Review of Substantive Decision
                                                                                                                         CB 169-191

                                                           Key Questions
   Is the pragmatic and functional (P&F) approach really about determining legislative intent?
   Does the P&F approach effectively render s. 18(1)(4) of the Federal Court Act inoperative?
   Did the standard of review adopted in Baker (reasonableness) make a difference in that case?
   Did L‘Heureux-Dubé J. in Baker appeal illegitimately to the CRC, as the partial dissenters contend?
   Was the SCC right to conclude that a more deferential standard of review was appropriate in Suresh than Baker, regarding
    determination of whether Suresh constituted a danger to Canada?

Introduction to judicial review
    Administrative officials exercise statutorily delegated power
    Individual negative decision  may seek (but is not entitled to) quashing or other remedy in the courts  application for leave
     once other internal appeals are exhausted  no appeal from this application

                                                          Page 18 of 74
Immigration and Refugee Law (Fox-Decent)                                                                    Dorian Needham (Fall 2007)
    Federal Courts Act outlines reasons for judicial intervention when board/commission/tribunal: acted without
     jurisdiction; failed to observe principle of natural justice; erred in law; made an erroneous finding of fact
     (incomplete or incorrect information); acted through fraud or perjury (bad faith); acted in another way contrary to
     law (improper purposes)
    Federal Court decision to grant relief can only be appealed to Federal Court of Appeal if judge certifies a ―serious question of
     general importance is involved‖
    The majority if cases that come before IOs and work their way to the courts are administrative, rather than constitutional review
     – someone‘s economic or family interests have not been recognised by an IO
    Privative clauses and the right to appeal
          o   In our system, courts are only entities entitled to determine own jurisdiction and jurisdiction of others, and have
              sometimes overridden legislators re: right to appeal, so legislators have occasionally taken to drafting very strong
              privative clauses
          o   Sometimes legislators go further, declaring that the decisions of a tribunal are binding, including all decisions having to
              do with tribunal‘s jurisdiction; conversely, sometimes legislators explicitly include a statutory right of appeal
          o   Statutory right of appeal: not always an appeal from an IO‘s decision to a court; often just an appeal in a loose sense,
              whether you‘re looking for someone to review the decision
    CUPE v. New Brunswick (1979): courts should be careful in designating as jurisdictional topics/issues that may in fact not be

                                   The Pragmatic and Functional Approach to Judicial Review

    Central enquiry in determining standard of review is legislative intent of the statue creating the tribunal whose decision is being
     reviewed: court must ask “[W]as the question which the provision raises one that was intended by the legislators to
     be left to the exclusive decision of the Board?”
    Must consider (cited in Pushpanathan below)
1.        Privative clauses: presence of ―full‖ or ―strong‖ privative clause is compelling evidence that court ought to show
          deference; absence may imply high standard; clause permitting appeals suggests more searching standard
2.        Expertise: if tribunal constituted with particular expertise (e.g., labour panels that see the same parties all the time, are
          aware of workplace conditions, and know the people involved), more deference; must consider character of expertise,
          court‘s own expertise, and nature of specific issue
3.        Purpose of act as a whole, and provision in particular: if establish not rights between parties or entitlements, but
          rather delicate balancing between constituencies, then more deference
4.        Nature of the problem (law, fact, mixed law and fact): if you can get rid of the facts and still have something to debate, it
          is a question of law; more factual means more deference
    Standards of review (from Ryan below)
1.        Correctness: whether the decision maker reached the outcome that the court would have reached if it considered the
          matter afresh; addresses reasons that were or could have been offered in defence of the decision
2.        Reasonableness: addresses reasoning process of the decision itself; if decision maker offers reasonable interpretation of
          statutory scheme, and there is an evidentiary basis, then decision will be maintained
3.        Patent Unreasonableness: totally wrong, untenable under no reasonable interpretation of the statute

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982: CB 170-177
Facts
   P applied for refugee status but granted PR status in the meanwhile, then arrested for trafficking and sentenced to 3.5 years
   Under contemporary rules, a sentence of 2+ years could trigger inadmissibility  P issued deportation order
   P reinitiated refugee claim and was denied
   Deportation order was conditional on determination that claimant was not a Convention refugee
Issue: what factors compose the choice of a standard of review?
Holding (Bastarache, 4-2): see below
   Here, Board to be subjected to standard of correctness
   This is ―a serious question of general importance‖, involving potential disqualification of numerous future refugee applicants
   (1) no strong privative clause, (2) Board has no great expertise relative to courts, (3) provision addresses rights of individuals
    (exempts certain persons from refugee status – designed to stop HR violators from gaining status), and (4) this is a question of
    law  correctness standard
   Appeal allowed
Ratio: see box above
Notes: year before, SCC first introduced middle-ground (reasonableness) between correctness and patent unreasonableness

    Varying levels of scrutiny applied to different decisions
    SCC has since ―continued to tinker with its analysis‖
    Ryan (2003)
         o   No sliding scale of deference, but instead a spectrum with three distinct standards of review: (1)
             correctness; (2) reasonableness; (3) patent unreasonableness
         o   Reasonableness does not ―float‖, but maintains a stable meaning
         o   Four factors from Pushpanathan continue to be important
         o   Reasonableness not to be based on prior determination of whether the decision is correct – decision is
             unreasonable if there is no line of analysis within given reasons that could reasonably lead tribunal from
             evidence before it to conclusion at which it arrived
         o   The reasons offered for the decision should determine whether application for substantive review should succeed, not
             decision itself


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Immigration and Refugee Law (Fox-Decent)                                                                 Dorian Needham (Fall 2007)
        o    Currently, decision makers are under pressure to provide fast and succinct reasons  this approach may have severe
             impact
   Process of construing intent from four identified factors is ―shrouded in mystery‖

Substantive review of discretionary decisions
   IRPA and IRPA Regulations give broad discretion to wide range of decision makers, rather than specifying powers precisely
   Most important source of discretion: ministerial power under IRPA s. 25: granting PR status or exemption from any applicable
    criteria on H&C grounds, considering best interests of children directly affected and public policy

IRPA s. 25 (1). Humanitarian and compassionate considerations.
     (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act,
and may, on the Minister‘s own initiative, examine the circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests
of a child directly affected, or by public policy considerations.
IRPA s. 25(2). Provincial criteria.
     (2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign
national does not meet the province‘s selection criteria applicable to that foreign national.

        o    Usually seen as a concession to the fact that no system of rules could account for all circumstances
        o    Two levels of discretion: H&C relief grant is optional; ―H&C‖ can be interpreted
        o    CIC Inland Processing Manual describes H&C consideration as relieving ―undue, undeserved or disproportionate
             hardship‖, considering degree of current establishment in Canada and hardship to applicants and children if required to
             depart; many context-specific criteria

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817: CB 179-188
Facts
   B came to Canada illegally and stayed 11 years, having 4 children
   Diagnosed with paranoid schizophrenia, applied for welfare
   Ordered deported, applied for H&C exemption (might become ill again if returned to Jamaica, sole caregiver for 2 children and
    supporter of 2 others, emotional hardship)
   Application denied on insufficient H&C grounds; letter contained no reasons
   Deportation stayed pending results of appeal
Issue: (1) What standard of review should be used here? (2) Does this standard uphold the decision?
Holding (L‘Heureux-Dubé, 5-0-2 concurring in part)‖ (1) Reasonableness. (2) No.  Baker
   B argues for a correctness standard, accordance of discretion with Convention, inclusion of child‘s best interest
   C claims that Convention not implemented in Canadian law, Parliament has conferred broad discretion
   Parliament intended to leave considerable choice to the minister on granting H&C applications
   Discretion: whenever effective limits on power leave a public offer free to make a choice among possible courses of
    action of inaction
   Administrative law‘s traditional approach: discretionary decisions only reviewable on limited grounds (e.g., bad faith, improper
    purpose, irrelevant considerations, ―unreasonableness‖); two central ideas are decision within bounds of statutory jurisdiction,
    and deference in reviewing discretion and determining scope of jurisdiction
   More discretion left to a decision-maker, more reluctant courts should be in interfering with his/her choice among
    various options
   Discretion always to be exercised within statutory jurisdiction, respecting principles of rule of law, administrative law, Charter
    principles, and fundamental Canadian values (violated here, as children‘s interests were not considered)
   Here: (1) no privative clause ( lower level of deference), (2) expertise (Minister is decision-maker  more deference); (3)
    purpose is to give choice to Minister with ―open-textured‖ legal principles involving balancing of rights ( more deference), (4)
    discretionary and fact-based problem ( more deference)
   So considerable deference to be shown to decision-makers  standard of review should be reasonableness
   Iacobucci in Southam: unreasonable decisions are not supported by any reasons that can stand up to a ―somewhat probing
    examination‖
   This decision was unreasonable in that it dismissed B‘s children‘s interests, and was thus inconsistent with values underlying
    grant of discretion
   Parliament intended those exercising discretion to do so in a H&C manner
1. Reasonable exercise of discretion requires close attention to needs of children
   Parliament‘s stated goal of reuniting families and keeping them together
   UN Convention of the Rights of the Child: not implemented by Parliament, so no direct application, but its values may guide
    statutory interpretation and judicial review; should interpret ministerial guidelines in keeping with Canada’s int’l
    obligations
   Ministerial guidelines require decision-makers to be alert to possible humanitarian grounds, consider hardship of decision on
    claimant or close family members, and should consider connections between family members
   Emphasis on rights, interests, and needs of children and special attention to childhood are important values to be considered in
    interpreting H&C considerations guiding exercise of discretion
   Children‘s best interests will not always outweigh other considerations, and there may be other reasons for denying H&C claims
2. Decision-maker also failed to consider hardship on B of a return to Jamaica
Ratio: discretion always to be exercised with respect for:
1. Statutory jurisdiction/objectives
2. Principles of rule of law [suggests that discretion is to be exercised consistently with Canada‘s international obligations]

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Immigration and Refugee Law (Fox-Decent)                                                                     Dorian Needham (Fall 2007)
3. Principles of administrative law
4. Charter principles
5. Fundamental Canadian values
Comments
  Landmark decision in interpretation of H&C discretion
  First time that the SCC had abandoned deference to analyse a decision in such extensive detail
  Resulted in rewording of now-s. 25 to include best interests of the child
  Partial dissenters objected to the usage to which the majority put international law; argued that if a convention was ratified but
   not implemented, cannot be activated judicially (breaches separation of powers; sneaking int‘l law in the back door when they
   couldn‘t get it in the front)
  This case also bears on how legislation must be formulated to be consistent with rule of law in a thin sense (1. Administration
   confirms with law. 2. Public, clear, internally consistent, non-retroactive laws.) or a thick sense (3. Minimal moral content:
   consistency with fundamental human rights.): L‘Heureux-Dubé jumps straight to the thick sense

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 189-191
Facts: see section A above
Issue: what standard to adopt with regard to Minister‘s decision that a refugee constitutes a danger to the security of Canada?
Holding (Court): patent unreasonableness
   Reviewing court should adopt deferential approach and should set aside Minister‘s discretionary decision only if patently
    unreasonable (arbitrary, bad faith, no evidentiary support, appropriate factors not considered)
   Act’s language suggests deterrence
   Parliament intended to grant broad discretion reviewable only where Minister makes patently unreasonable decision
   HR issues may still be fully addressed, where proper safeguards exist and Charter is upheld
   Minister will have best say in national security issues, and public needs confidence of knowing elected officials are making these
    decisions – once he‘s identified relevant factors, it‘s for him to weigh them (weighing of relevant factors is not the court‘s job)
   Baker: pragmatic and functional approach to be used
Comments
   Baker, as analysed here, has produced some confusion about the proper standard of review
   Baker was decided by a majority that put a huge emphasis on the substantive elements to be considered (rights of children);
    here, huge discretion is left to the Minister
   Federal Court has failed to develop consistent case law on this question
   Rumour: this case was decided before 9/11, and then held back, rewritten, and re-released after 9/11 – the procedural fairness
    section (see Section C below) almost seems like it was written by a different constituency within the Court


                            C. Administrative Review of Procedural Fairness
                                                                                                                             CB 193-208

                                                           Key Questions
    Which specific procedures are required by the duty of procedural fairness (apply ―the Baker 5‖)?
    Is the duty to give ―responsible reasons‖ from Suresh consistent with the duty to give reasons in Baker?
    Why did the Court in Suresh say that the reasons must issue from the person making the decision?
    Why did the Court in Suresh find that an oral hearing was not necessary, whereas in Singh it was?

    Federal Courts Act allows for judicial relief where decision maker has failed to observe a principle of natural justice or procedural
     fairness or other procedure that it was required by law to observe
    Highest standard of procedural fairness (Fox-Decent: ―the Cadillac of procedural fairness‖) is an oral hearing
    Threshold question: whether the duty of procedural fairness is owed at all (in most cases, some duty owed)
    Content questions: what is the content of this duty?

                               Factors affecting content of the duty of fairness (from Baker below)

1.   Nature of the decision being made and process followed in making it: more it resembles judicial decision making, the
     more likely it is that procedural protections closer to the trial model will be required
2.   Nature of statutory scheme and “terms of the statute pursuant to which the body operates”: e.g., greater protections
     needed where no appeal provided, when decision is determinative
3.   Importance of the decision to the individual(s) affected: greater impact entails more procedural protections
4.   Legitimate expectations of the person challenging the decision (does NOT create substantive rights): legitimate
     expectation of a procedure will entail this procedure; legitimate expectation of result will entail more extensive rights (cf. UK,
     where if a decision-maker makes representations of a particular outcome, that outcome is guaranteed unless there are
     overriding or countervailing public reasons; in Canada, no presumptive right to have a case decided in a particular manner, so
     thicker procedural safeguards instead)
5.   Choices of procedure made by agency itself: when statute gives decision-maker ability to choose own procedures, or when
     agency has expertise in determining what procedures are appropriate

                                                     (this list is not exhaustive)

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817: CB 193-202
Facts: see II.C above

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Immigration and Refugee Law (Fox-Decent)                                                                 Dorian Needham (Fall 2007)
Issue: (1) How is procedural fairness determined and measured? (2) Was B‘s process procedurally fair?
Holding (L‘Heureux-Dubé, 5-0-2 concurring in part): (1) See ratio. (2) No.  Baker
1. Factors affecting content of duty of fairness
   Eminently variable; to be decided in specific context of each case
   Central goal: fair and open procedure, appropriate to decision being made and its statutory/institutional/social
    context, with opportunity for those affected to put their views forward fully and have them considered by the
    decision maker
   Factors enumerated as in box above
2. Baker‘s case
a. Legitimate expectations
   Convention (and Canada‘s accession to it) did not give rise to a legitimate expectation on B‘s part of specific procedural rights,
    positive finding, or particular criteria
   Unnecessary to consider whether an international instrument ratified by Canada could in other circumstances give rise to a
    legitimate expectation
b. Participatory requirements
   Factors supporting more relaxed requirements: H&C decision is different from judicial decision (involves more discretion and
    multiple factors); exception to the general immigration scheme
   Factors supporting more stringent requirements: no appeal procedure; very important to claimants; Minister has great flexibility
   Duty of fairness here is more than “minimal”: must have full and fair consideration of the issues; claimant must have
    opportunity to present relevant evidence and have it fairly considered
   Oral hearing not always necessary to ensure fair hearing: meaningful participation can occur in different ways; B had
    opportunity to present written evidence
c. Provision of reasons
   Traditional CML position: fairness does not generally require provision of reasons for administrative decisions
   Courts and commentators have highlighted usefulness of reasons in ensuring fair and transparent decision-making, ensuring
    articulated (and therefore more careful) reasoning, convincing those affected that they were treated fairly
   But reasons could also be a burden, increase cost and delay, induce a lack of candour
   So must ensure that reasons requirement leaves sufficient flexibility
   In certain circumstances, duty of procedural fairness will require the provision of a written explanation for a
    decision: B‘s case is one of these, but provision of IO‘s notes was enough
d. Reasonable apprehension of bias
   All IOs (decision-makers or reviewing officers) have duty to act fairly and in a manner not giving rise to reasonable
    apprehension of bias
   Committee for Justice and Liberty: test is whether an informed person, viewing the matter realistically and practically,
    and having thought the matter through, could conclude that the decision-maker had not decided fairly
   Standards may vary based on context: these decisions are individualised and require sensitivity, understanding of others,
    recognition of diversity, openness to difference
   IO’s comments were biased by these standards, drew conclusions contrary to psychiatrist, relied on fact that B was a single
    mother with several children and a diagnosed psychiatric illness
Ratio: see box above
Notes
   B‘s children were denied standing, on the grounds that their interests could be articulated by B‘s lawyer
   There as yet to be a case where ―legitimate expectations‖ are defined and/or have made a difference; they‘ve never been raised
   Convention-based legitimate expectations were raised in this case because the same line had succeeded in Australian Teoh case,
    which was decided almost exclusively based on legitimate expectations

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 202-208
Facts: see II.A above
Issue: (1) Is deportation to torture constitutional? (2) Was S‘s process procedurally fair?
Holding (Court): (1) Yes, in some cases. (2) No.
   Must be sensitive to context
   Principles of fundamental justice in s. 7 are the same principles underlying procedural fairness
   CML factors will inform the s. 7 procedural analysis
   Baker: fairness requires that the issue at hand be decided in the context of the statute involved and the rights affected
   [Baker factors listed again]
1. Decision to deport resembles judicial proceedings but involves discretion  does not inform procedural fairness
2. Nature of scheme (no hearing provision, no requirement of reasons, no right of appeal) involves ―no procedures at all‖  need
    strong safeguards
3. Decision is deeply important to S because of his refugee status and the possibility of torture on return to Sri Lanka; deportation
    ―engages serious personal, financial and emotional consequences‖  need strong safeguards
4. Convention explicitly prohibits deportation where there are ―substantial grounds‖ (raises a duty to afford an opportunity to
    demonstrate and defend grounds) to believe that individual would be subjected to torture; reasonable to expect Executive to act
    in accordance with Convention‘s plain meaning  need strong safeguards
5. Minister is free to choose any procedure; discretion; deference  must reconcile this with need for strong safeguards
   Safeguards do not extend to level of requiring Minister to conduct full oral hearing or complete judicial process – but do require
    more than the Act currently does (which is nothing)
   Minister can consider foreign states‘ assurances regarding torture, but these are less reliable than, e.g., assurances regarding
    death penalty
   Minister can consider foreign government‘s HR record and capacity


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Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
   Should remember that to become a Convention refugee you must establish a well-founded fear of persecution (though not
    necessarily torture)
   Minister (and no one else) must provide written responsive reasons (not advice or suggestion), indicating that there are no
    substantial grounds for believing that the individual will be subjected to torture, and that the individual is a danger to the
    security to Canada
   Claimant must establish threshold of risk (not proof of risk, but a prima facie case that there may be torture) of torture or
    similar abuse before Minister must consider fully the possibility
   Memo given to Minister on which he based his decision was written more like a prosecution brief than a balanced assessment
   S‘s lack of procedural protection cannot be justified under s. 1
   Procedures for deportation are constitutional
   S‘s case remanded to Minister for reconsideration
Ratio
   Procedural protections may not be engaged in every case
   Person facing deportation must be: informed of case to be met; informed of material on which Minister is basing
    decision (responsive reasons); given opportunity to respond to the case; able to make written submissions after
    getting this information; able to challenge Minister’s information on validity grounds
   Generally, deportation of a refugee when there are substantial grounds to suspect risk of torture unconstitutionally
    violates s. 7 – but could be justified under ss. 7 or 1
Notes
   Ahani (decided simultaneously): another claimant‘s process was found consistent with fundamental justice
   Discussions of procedural fairness usually revolve around: adequate notice; adequate disclosure; sufficient opportunity for
    claimant to hear case against him/her and present own case; representation by counsel; availability of competent interpreter;
    whether person hearing case is decision-maker; provision of adequate reasons; delay; legitimate expectations; reasonable
    apprehension of bias

Synthesis and discussion
   This case seems to give some scope to legitimate expectations in the same way that Baker didn‘t: seems to leave some room for
    legitimate expectations as established by Canada‘s ratification of a treaty
   In Suresh, responsive reasons were demanded from the ultimate decision-maker; cf. Baker, in which the notes of a junior IO,
    which were never intended to be adduced as reasons, were acceptable as such
         o   CML traditionally provided no procedural protections for administrative decisions
         o   First indication that claimant should be able to challenge administrative decision came 10 years before Baker
         o   Baker declared that whenever an important interest is at stake, some reasons will be required; L‘Heureux-Dubé
             declared that to avoid overburdening, reasons don‘t have to conform to judicial standards
         o   In Suresh, the need for reasons was ratcheted up further: decision-maker himself must sign on; reasons must be
             responsive – and duty to give reasons will be breached if decisions aren‘t adequate
         o   So: in a deportation case, broad grounds may suffice, but where a constitutional right like security of the person is
             engaged, more reasons and accountability may be necessary
   Fox-Decent: by Suresh, the process/substance distinction is completely collapsed; the duty to give reasons is given some
    substantive elements (adequacy conditions); procedural safeguards should be truly procedural, and adequacy should only be
    addressed during substantive review after P&F approach is applied
         o   Judicial review of procedural issues is always based on a correctness standard – so reasons here are being
             evaluated on that standard, rather than whatever standard emerges from a case-by-case P&F approach
         o   Suresh is thus getting substantive review in the back door
   Fox-Decent: Post-Baker, feeling on SCC and FCA that lower judges thought they‘d been given a carte blanche to intervene
    wherever children are involved
         o   So: pulling away in Suresh (decision-makers must consider everything relevant, but afterwards it‘s up to the minister to
             weigh them all)
         o   Also, a pulling away by rendering the standard of substantive review patent unreasonableness


                                          D. Institutional Independence
                                                                                                                          CB 208-210

   Power of IRB chair to influence decision-making by Board members
   Chair can issue guidelines to members, identify decisions as jurisprudential guides, ―persuasive decisions‖ or ―lead cases‖: this
    practice not authorised by statute; guidelines are not binding but members are expected to follow them ―unless compelling or
    exceptional reasons exist to depart from them‖; no mention of consequences following failure to comply
   Possible that members‘ discretion is limited by someone who has not heard the case
   Questions about independence of IRB members appointed for specific terms who must seek reappointment


                                               E. International Review
                                                                                                                          CB 215-230

Individual complaints
   After an individual has exhausted all Canadian remedies, may be able to lodge a complaint with an international tribunal (but
    only one at a time)
   Even if individual succeeds, Canadian government has frequently refused to comply with tribunal‘s decision or recommendations
   Canadian courts have determined that they are not bound by the views of international treaty bodies
   UN Human Rights Committee
                                                           Page 23 of 74
Immigration and Refugee Law (Fox-Decent)                                                                    Dorian Needham (Fall 2007)
         o  Protocol to the International Covenant on Civil and Political Rights (1976):
                     7. No torture, cruel, inhuman or degrading treatment; no experimentation without consent
                     9. Liberty and security of the person; no arbitrary detention; no deprivation without procedure established by
                      law
                     12. Right to movement within a territory and to leave any country (subject to national security, public order,
                      health, morals, or others‘ rights); no arbitrary deprivation of right to enter own country
                     13. Aliens can be expelled but (except where national security trumps) have the right to be know why and
                      have case reviewed
                     17. No unlawful or arbitrary interference with privacy, family, home, or correspondence; protection of law
                      against this
                     23. Family to be protected; right to marry and found a family; marriage by consent; equality
                      before/during/after
                     24. Children entitled to protection as minors, registration, name, and nationality
                     25. Citizens to have opportunity to participate in public affairs, vote, and access public service
                     26. Prohibition of discrimination; equal protection against discrimination
        o   Optional Protocol to the International Covenant on Civil and Political Rights
                     1. State party recognises competence of UNHRC to review and consider individuals‘ claims of violation of
                      Convention rights by state party
                     2. Individuals must have exhausted domestic avenues first
   UN Committee Against Torture, established by Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or
    Punishment
        o   1. Torture defined; only applies to torture by public officials or those acting in official capacity; does not include pain or
            suffering incident to lawful sanctions; this is without prejudice to other, wider agreements
        o   2. States to prohibit/prevent torture in own jurisdictions; exceptional circumstances are no justifications; superior
            orders are no justification
        o   3. No extradition to torture; States to consider others‘ patterns of HR violations
        o   4. Sates to criminalise torture
        o   17. Committee established to carry out rest of Convention; 10 experts elected by states parties
        o   22. States can declare recognition of Committee‘s competence to receive claims by individuals of violation by a state
            party; anonymous or abusive claims to be rejected; accused states have 6 months to respond; Committee to consider
            all available information but reject claims already under investigation or being domestically processed; proceedings in
            camera; results to be reported; provisions for coming into force
   Inter-American Commission on Human Rights
        o   American Declaration of the Rights and Duties of Man (binds Canada as member of the OAS)
                     Preamble: equality in dignity and rights; fraternity; each individual to fulfil duties and enjoy rights; juridical
                      duties presuppose constitutive moral duties; importance of spiritual development; culture to be preserved,
                      practiced, and fostered; high respect for moral conduct
                     I. Life, liberty, and security of the person
                     II. Equality in Declaration rights and duties without discrimination
                     III. Freedom of religion (incl. manifestation and practice)
                     IV. Freedom of investigation, opinion, and expression and dissemination of ideas
                     V. Protection of law against abusive attacks on honour, reputation, and private and family life
                     VI. Right to establish a family and have it protected
        o   Statute of the Inter-American Commission on Human Rights (Canada not a signatory to the Convention, but subject to
            some powers because of the above Declaration)
                     1. HR to include American Convention on Human Rights, American Declaration of the Rights and Duties of Man,
                      etc.
                     20. Particular attention to be paid to rights in Declaration above; can examine communications from and make
                      recommendations to governments about non-State Parties

Tahir Hussain Khan v. Canada, Committee Against Torture, Communication No. 15/1994, UN Doc. A/50/44 at 46
(1995): CB 223-225
Facts:
   K was involved in political activism (considered subversive) in Pakistan; arrest warrant was issued for him
   K claims that his deportation by Canada to Pakistan would be deportation to torture
Issue: would the forced return of K to Pakistan violate C‘s obligation under Torture Convention art. 3 not to expel or return a person
to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture?
Holding: yes  Khan
   Threshold issue: K‘s case not being examined elsewhere; C has not objected (has rather approved Committee‘s action)
   Not a review of Canada‘s system, but specifically of K‘s case; not a review of Pakistan‘s system, as Pakistan is not a state party
   Committee to consider all relevant considerations: K has twice been tortured, has produced considerable evidence; torture is
    widely practiced in Pakistan; he didn‘t produce all evidence initially but this is typical of torture victims
   There are sufficient grounds to believe that a political activist like K would be in danger of being subjected to torture – and if
    returned to Pakistan (not a state party), no possibility of applying to the Committee for protection
   Expulsion or return of K to Pakistan would thus violate C‘s commitment to the Convention  C must refrain
Ratio
   Consistent pattern of gross, flagrant or mass HR violations is not per se sufficient (absence of consistent pattern is
    not conclusive either), as individual must personally be in danger
   No deportation to torture
Notes
   Canada said that it had ratified but not implemented Convention, and would send K back anyways
                                                            Page 24 of 74
Immigration and Refugee Law (Fox-Decent)                                                                    Dorian Needham (Fall 2007)
   Ahani decided at same time: Canada was asked to stay deportation while Committee considered his case; Canada refused;
    Ahani failed to get a ruling that Canada had to comply with request (ON CA held that Canada was not bound to do so)

Reports
   Int‘l HR instruments also oblige states parties to submit reports when requested
          o   ICCPR art. 40: Canada last reported in 1999
          o   Convention Against Torture: Canada last reported in 2000 and 2002
   Conclusions and Recommendations of the Committee Against Torture: Canada, UN Doc. CAT/C/GO/34/CAN (2005): CB 226-228
          o   Positive aspects
                      Definition of torture in accordance with Convention art. 1
                      IRPA inclusion of torture as qualifying someone as meriting protection and refusing extradition
                      Constitutional scrutiny of Anti-Terrorism Act powers
                      Enhanced procedural guarantees to all persons challenging on risk of torture
          o   Subjects of concern
                      Failure of SCC to recognise absolute nature of Convention art. 3
                      Alleged role in deportation of Maher Arar
                      IRPA exclusion of refugee or person-in-need-of-protection status, or protection from deportation, for security
                       reasons
                      Apparent willingness to resort in first instance to resort to immigration processes to remove/expel people
                      Reluctance to comply with all requests for interim measures of protection
                      Absence of official measures to compensate victims of torture
                      Allegations of inappropriate law enforcement around crowd control
          o   Recommendations
                      Respect the absolute nature of Convention art. 3
                      Remove exclusions in IRPA
                      Provide for judicial review of merits, rather than merely reasonableness, of decisions to expel an individual
                       where there are substantial grounds to believe he faces a risk of torture
                      Unrestricted consular access for Canadians in detention abroad
                      Provide details on how many cases of extradition or removal subject to receipt of ―diplomatic assurances‖ post-
                       9/11
                      Provide compensation to victims of torture
                      Fully clarify competence of Commission of Public Complaints Against the RCMP
                      Consider joining the Optional Protocol to the Convention


                                           III. Temporary Residents
                                                                                                                            CB 231-232

   Every year, more than 35 million people visit Canada as temporary residents
   Primary objective of disparate policies is to contribute to growth of Canada’s economy
   IRPA s. 3(1)(g): temporary resident programs ―facilitate the entry of visitors, students and temporary works for purposes such
    as trade, commerce, tourism, international understanding and cultural, educational and scientific activities‖
   At best: system benefits entrants and home countries, and also Canadian economy
   At worst: Canada benefits at the expense of entrants and their home countries; Canada imports workers rather than addressing
    issues domestically


                                               A. General Requirements
                                                                                                                            CB 232-236

   Foreign nationals must apply for a temporary resident visa (TRV) prior to travelling to Canada, with exceptions (visa-exempt
    countries: IRPA s. 190)
   Primary factor considered by IOs in determining TR visa applications is whether the applicant would be likely to
    leave Canada at the end of their authorised stay – also that applicant will not contravene conditions of entry and is not
    otherwise inadmissible
   Not uncommon for nationals of countries that produce a high number of refugees, or where immigration demand is high, to be
    refused
   Visa officer must allow the applicant an opportunity to respond to his concerns (Yuan, 2001)
   3 broad principles applying to temporary status (De La Cruz, 1989)
              o    Decision to issue/deny a TRV is a discretionary and administrative one
              o    Burden of proof is on applicant to establish that entry to Canada would not be contrary to immigration laws
              o    If visa officer has performed duty by properly considering the application, reviewing court will not interfere with the
                   decision even if the court may have reached a different decision (reasonableness standard)
   “Dual intent” where PR and TR visa applications are simultaneous: neither precludes the other, if IO is satisfied that applicant
    will leave at end of granted TR period (this possibility created because TR visas are processed much faster, and leaves room for
    changing circumstances)

Entry and departure
   TRV holder not entitled to entry: must continue to meet same requirements at point of entry (IRPA Regulations s. 180)
   Duration is 6 months by default (Regulations s. 183(2)), though examining officer can intervene

                                                            Page 25 of 74
Immigration and Refugee Law (Fox-Decent)                                                                   Dorian Needham (Fall 2007)
   May apply for extension (Regulations s. 181(1)) if application made by end of stay and all conditions (in Regulations s. 179)
    complied with (administrative delays may mean no response before end of stay  ―implied status‖)
   Status can be restored within 90 days (Regulations s. 182), and shall be restored if all conditions met (Novak, 2004)

Conditions on all temporary residents
  Must leave Canada by end of period authorised for stay; must not work or study unless authorised
  2003: estimated 36 000 unenforced removal orders


                                                 B. Temporary Workers
                                                                                                                           CB 236-259

                                                            Key Questions
   Do TFWPs necessarily treat temporary workers as ―children of a special sort‖ – children who can‘t grow up?
   Is Ruhs right to say that Walzer fails to consider the benefits to temporary workers and their countries of origin?
   Do such benefits, and Ruhs‘ proposals to reform TFWPs, outweigh or address Walzer‘s concerns?
   Would a ban on TFWPs prove worse than the disease by creating greater numbers if illegal migrant workers?
   Does it matter that it is affluent countries themselves which (self-servingly) insist on the apparently ―win-win‖ aspect of TFWPs?

Work permits
  ―Work‖: an activity for which wages commission is earned, or that competes directly with activities of Canadian citizens or PRs in
   the Canadian labour market
  General rule: person must be in receipt of a job offer from a Canadian employer and must then apply for a
   temporary work visa
  IO determines on basis of Dept of Human Resources and Social Development (HRSD) opinion whether job offer is genuine and
   whether employment of the foreign national is likely to have a neutral or positive economic effect on the labour market in
   Canada (HRSD primary mandate: protect and develop the domestic labour market)
            o     HRSD confirmation most often obtained if employer has advertised across Canada, has not been able to find a
                  qualified Canadian or PR to fill the position, and must keep and supply records
            o     Exceptions to HRSD vetting when applicant: will advance Canada‘s policy objectives; will create or maintain
                  social/cultural/economic benefits or opportunities for Canadian citizens or PRs; does religious/charitable work; is a
                  sports competitor; is a refugee claimant; is subject to unenforceable removal order; has humanitarian reasons;
                  applies under General Agreement on Trade in Services (GATS: see below)
  Work permit not needed in following situations
            o     Business visitor (purchasing Canadian goods for a foreign gov‘t; receiving/giving training at Canadian subsidiary;
                  representing a foreign gov‘t for selling goods)
            o     Foreign representative or spouse
            o     Full-time student working on-campus
            o     Performing artist
            o     Participant in sports activities
            o     NAFTA (c. 16 provides for temporary cross-borer movement; intended to complement domestic programs; good for
                  business travellers)
            o     GATS (administered by WTO; aims to liberalise trade in services)
  Canadian gov‘t required by Fourth World Conference on Women to incorporate a gender perspective in the development of all
   federal policies, programs, and legislation: see CB 260 for an example

Workers in the chronic shortage sector
  E.g., pilot project for IT workers (1997), more recent project for construction workers
  Working conditions often difficult or hazardous, life in Canada full of uncertainty
  Macklin: they take jobs Canadians are unwilling to do under prevailing wages and working conditions; fill chronic
   gaps in devalued and low wage sectors (usually predominantly female domains); insecurity created by tying their ability to
   remain in Canada to work with a particular employer  poorer conditions
  May create a class of easily exploited workers who lack workplace protections and other basic rights – but can also
   benefit migrants and sending and receiving countries

Walzer, ―Membership‖, Spheres of Justice: CB 243-249
   [Recall that Walzer, in our earlier readings, supported closure to define the nation in opposition to the ―other‖, in the manner of
    a club or family]
   After residency application, there is a secondary process of naturalisation application – what is at stake is citizenship and not
    (except legally and narrowly) nationality
   Same standard should apply to naturalisation as immigration; every immigrant and every resident is a (potential)
    citizen
   Citizens must be ready to accept the people they admit as equals; otherwise the state is like a family with live-in
    servants
   Filling undesirable jobs in the domestic context requires removing union and welfare constraints (makes workers vulnerable) or
    raising working conditions of these jobs (would raise costs across economy and challenge social hierarchy)  gov’t shifts the
    jobs to the international market, towards people who find them less undesirable
   Regulations that govern admission are designed to bar guest workers from protection of citizenship; cannot bring dependents
    with them; no political rights
   Over time, conditions somewhat mitigated, but position remains precarious: residence tied to employment; recession can force
    them to leave; some residence quotas; restricted options in choosing a place to live
                                                           Page 26 of 74
Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
   Money (not rights) is the only return that host country gives to their guests
   Defenders of guest worker programs say that system is a synthesis of labour mobility and patriotic solidarity – but state-as-
    neighbourhood and state-as-club-or-family cannot coexist – only works because some people are denied political right and civil
    liberties
   Guest workers don‘t ―agree to be ruled‖: political power is the ability to make decisions over time, to change the rules – requires
    ongoing consent
   Guest workers are not ―guests‖ or ―tourists‖; for them, the state is a pervasive and frightening power that shapes their lives but
    doesn‘t ask for their opinion; the purpose of their status is to stop them from improving their condition
   Host country isn‘t homogeneous, so guest workers see other people ―like themselves‖ who are citizens
   Relevant principle here is not mutual aid but political justice: participants in economy and law ought to be able to
    regard themselves as potential or future participants in politics
   If seen as potential citizens, more difficult to deny them rights
   Host countries might negotiate treaties with home countries, setting out ―guest rights‖ and ensuring periodic renegotiation
   Processes of self-determination through which a democratic state shapes its internal life must be open, and equally
    open, to all those who live within its territory, work in the local economy, and are subject to local law – so
    naturalisation should depend on immigration subject only to certain constraints of time and qualification, never to
    possibility of closure
   People are either subject to state authority or not – and if they are subject they must be given a say
   Admission and exclusion are at the core of communal independence —but can‘t claim territorial jurisdiction and rule over people
    with whom territory is shared

Ruhs, ―Designing Viable and Ethical Labour Immigration Policies‖: CB 250-259
   Temporary foreign worker programmes (TFWPs) should be expanded, and are both desirable and feasible
   Desirability
              o  [Summary of universalist and communitarian (Walzer) positions]
              o  Don‘t acknowledge that TFWPs typically increase economic welfare of migrant workers, who choose to come
              o  Of all ways to manage and liberalise labour immigration amongst sovereign states, TFWPs are the most realistic
                 policy option
              o  TFWPs benefit receiving states by providing them with highly motivated workforce, provided that:
                         Local workers are unavailable
                         Existing vacancies are advertised at ―decent‖ wages above minimum wage
                         Change toward less labour-intensive production is difficult in the short term
                         Relocation abroad is difficult or impossible
                         Complete elimination of occupation or sector is against country‘s interest
              o  TFWPs enable receiving countries to minimise potentially adverse impacts of employment of migrant workers on
                 wages and employment opportunities of the local workforce – thus more politically feasible than large-scale
                 immigration programmes
              o  Expanded TFWPs may benefit sending countries through increased inflow of remittances and return of workers with
                 more skill; increase choices for migrant workers
              o  Temporary nature of TFWPs means that there isn‘t long-term brain drain and decline in remittances; maximises
                 number of migrant workers able to benefit from employment abroad
   Feasibility
              o  Past and existing TFWPs failed for 3 reasons (policy design failures)
              o  Exploitation of migrant workers in both recruitment and employment
                         Permits usually specific to one job and one employer – must grant more freedom of movement in
                          receiving country’s labour market
                         This increases choice for migrants and increases efficiency of host country‘s labour market
              o  Emergence of labour market distortions
                         Employers weren‘t offered right incentives to recruit migrant workers
                         Employers were ingenious in ensuring that no local workers were available
              o  Work permit fees were too low  inefficient companies and industries remained viable
                         Must “get the price of migrant workers right” by charging a monthly fee to employers for each
                          foreign worker employed
                         This would provide employers with incentive to search for local workers and look for alternatives
                         Can reduce local workers‘ opposition to TFWPs by distributing work permit revenues to native workers or
                          setting up retraining programs in sectors where hiring of foreign workers has verifiably depressed wages
                          and/or working conditions
                         Could also set up a market-based system where native workers collectively decide on compensation in
                          exchange for agreement to the employment of a certain number of foreign workers in a given sector
                         Growth of structural dependence by certain industries on continued employment of migrant workers, and
                          non-return of workers)
                         Prior TFWPs assumed that guest workers were available on tap, that they could be increased or decreased
                          at will – based on the false idea that guest workers were labour units without agency
   Implementation of new and improved TFWPs must include transparent mechanisms and rules for regulated and
    conditional (i.e., non-automatic) transfer into different and “better” programmes that grant some foreign workers
    PR status and the right to family reunion (e.g., points-based programmes in Australia and Canada)
   New and improved TFWPs must remain based on a general expectation of temporariness of employment and stay
    of the majority of migrant workers joining the program
   Must have mixture of incentives and enforcement to facilitate the return of migrant workers who exit TFWPs
    without changing their status to permanent programmes


                                                           Page 27 of 74
Immigration and Refugee Law (Fox-Decent)                                                                 Dorian Needham (Fall 2007)
   Clear and effective procedures to remove migrant workers who illegally overstay their temporary worker visas are needed; must
    also punish employers who employ unauthorised migrant workers
   Success of any TFWP depends on receiving country‘s willingness to enforce the law strictly against all parties
   A well-functioning TFWP is an ethical immigration policy in the interest of everyone involved
   Home countries may find it advantageous to cooperate


                                                 C. Live-in Caregivers
                                                                                                                         CB 259-275

                                                         Key questions
   Does Canada‘s LICG program strike the right balance between providing a job opportunity and respecting the autonomy of
    LICGs?
   Does the LICG program pose a special problem for feminists who seek work in a male-dominated workplace?
   What policy reforms could be adopted to improve the LICG program to address feminist concerns?

   This class of workers established to meet a labour market shortage
   IRPA Regulations s. 2: live-in caregiver (LICG) is ―a person who resides in and provides child care, senior home support care or
    care of the disabled without supervision in the private household in Canada where the person being cared for resides‖
   Can legally stay in Canada for duration of employment
   Part of economic class of PRs – but enter as TRs and can apply for PR status after 2 years of full-time employment as a LIC
   Must apply for work permit in accordance with Regulations and apply for TR visa if required; can‘t be subject to removal order,
    have misrepresented selves, or fail to meet QC selection criteria if heading there
   IRPA Regulations s. 113(1) require two years‘ work to acquire PR status, but this may be in respect of more than one employer
    or household (though not at a time), and can be interrupted
   IOs still have limited discretion to refuse PR status if two years‘ work performed (Turingan)
   More than 80% are women from Southern countries
   Highly stressful and potentially abusive workplace environment; serious risks of exploitation and violation of fundamental rights
   Langevin and Belleau recommendations (2000): revise selection criteria to recognise need for LICGs in Canada; eliminate
    obligation to live in home of employer; establish national childcare program
   2005: federal government convened national roundtable, planned to develop measures to improve program‘s effectiveness

Macklin: ―On the Inside Looking In: Foreign Domestic Workers in Canada‖: CB 262-275
  Simultaneous inclusion (admitted to Canada, employed, resident in a household) and exclusion (no political membership,
   excluded from worker protection laws, not part of the family)
  Live-in domestic work is qualitatively different from other work and even from live-out domestic work
  Elements of the master-servant relationship persist: potentially unlimited workday; no privacy; vulnerability to abuse;
   underestimated value of labour  low wages; denied workplace protections; difficult to built/sustain allegiances outside the
   household; no personal ―psychosocial space‖
  Immigration and employment laws do not characterise the dynamic alone, but do contribute to reproducing the status
  Historical overview
             o    Demand has always exceeded local supply; local women did not want to participate; foreign-born women have
                  always dominated
             o    Government agreed to promote domestic work overseas; women didn‘t have to stay in domestic work, and often
                  didn‘t
             o    Early 1950s: Caribbean Domestic Scheme
             o    Late 1960s: Scheme abandoned, but components remained (confined to domestic work for a certain period as a
                  condition of immigration; antipathy toward women with families likely to immigrate themselves and/or sponsor
                  their family; transition towards women of colour)
             o    1973: system of temporary work visas instituted; holder could only remain in Canada while employed as a
                  domestic worker; no possibility of converting status from visitor  immigrant  citizen
             o    Domestic workers thus transformed into disposable migrant labourers: cheap, exploitable, and expendable
             o    Organisations began to agitate on domestic workers‘ behalf
             o    1981: changes in federal policy to permit application for landed immigrant status from within Canada
  Foreign Domestic Worker Program
             o    Foreign domestic worker completing 2 years of live-in work in Canada could apply for landed-immigrant status
                  from within Canada (thus, presumptive right to reside permanently, instead of being fixed to a short-term scheme)
             o    Repudiated absolute prohibition on married women and/or mothers, but retained these as relevant factors
             o    IOs refused to treat Employer-Employee Agreement as an enforceable K  trivialising workers‘ status
             o    Didn‘t mitigate vulnerability of domestic workers; just relocated it inside the law
  Live-in Caregivers Program (LCP)
             o    Established 1992
             o    Applicants had to demonstrate Grade 12 equivalency (would exclude 1/3 of contemporary LICGs) and 6 months‘
                  formal training (later amended to allow one year‘s experience instead)
             o    Employers obliged to provide a departing employee with a Record of Employment
             o    Eliminated requirement to show skills upgrading to apply for landed-immigrant status; only had to show 2 years‘
                  residency
             o    Effect was to raise standards for initial entry to compensate for ―slackening‖ landing criteria  disproportionate
                  effect on women from LDCs
             o    Government undertook to counsel LICGs re: terms and conditions of employment
             o    Maintained ―live-in‖ component  unlikely to change status of LICGs much
                                                          Page 28 of 74
Immigration and Refugee Law (Fox-Decent)                                                                Dorian Needham (Fall 2007)
             o   LCP didn‘t bring in enough workers to meet demand  shadow market created
   United States
             o   Call for more and affordable servants is not just impossible but unnecessary, because borders are porous
             o   INS refrains from investigating employers of domestic workers
             o   Illegal LICGs even more vulnerable to exploitation  ―work hard and work scared‖
             o   Still included under federal employment standards laws, but many employers flaunt the laws
   Feminist implications
             o   Need for LICGs has escalated since women‘s participation in workforce (esp. professions) has risen
             o   Women‘s entry into workforce still have some constraints: many want to have children; women still bear primary
                 childcare and domestic responsibility; professional workplace still demands long hours and commitment to work
                 that presumes someone else is at home
             o   The analogy of LICGs with housewives fails – servant is a better analogy
             o   Insisting that a servant is ―like one of the family‖ affirms the feudal quality of the relation: LICG programs as
                 anachronistic, restoring the pre-Industrial bifurcation of mistress and servant
             o   Many foreign domestic workers are wives and mothers already; bifurcating ―wife‖ and ―servant‖ elides this element
                 of their personality, and ignores that the woman of the household often supervises the servant
             o   Women‘s access to high-status professions is facilitated through the ―revival of semi-indentured servitude‖;
                 women are buying their way out of sex oppression
             o   Patriarchy transforms individual women into proxy for nuclear family and blames her for LICGs‘ exploitation – but
                 acknowledging this doesn‘t absolve women of their responsibility
             o   Exploitation is facilitated by the fact that most LICGs are poor, disenfranchised, foreign women
             o   Employing a domestic worker doesn’t challenge patriarchy; just changes identity of woman doing
                 “woman’s work”
             o   Just solution would involve equally distributed responsibility for childrearing, transforming workplace
                 away from male-breadwinner model, state must provide more childcare
             o   This is a lot of work, so many women choose path of lesser resistance and hire a LICG
   Strange that despite high demand and low supply for this occupation, the wages aren‘t rising

Discussion and analysis
   We tend to assume that these women are better-off when coming here, but the element of choice may be false
   Fox-Decent: options instead of LICGs are for couple to share load, one partner to pick up the slack, or one partner to quit work
   These women are ―regularised‖ into our system, but we don‘t value their work enough to include it in the points system, so
    we‘ve created another, female-dominated lateral program
   Bureaucratic delays and difficulty of enforcing norms mean that the women are often unwilling or unable to engage
    state protection
   Fox-Decent: ―institutionalised temporary slavery‖
   Is outsourcing domestic labour any different from buying sweatshop shoes?
   Is paying someone less, in return for the promise of citizenship, truly unethical?
   We‘re subsidising the lifestyles of the wealthy with the promise of Canadian citizenship
   Arguably, this program is no different in its marginalisation of immigrants than other aspects of immigration – but
    at least this program is honest about its expectations and constraints
   Fox-Decent: are we all subsidising these employers by acquiescing in their trade-off of lower payments in exchange for the
    promise of citizenship (i.e., are employers of LICGs free-riding on our collective ownership of citizenship)?
             o    Should employers have to pay more for this benefit?
             o    There must be a middle ground between the wages they‘re paying today and what a Canadian LICG would charge
                  – why not tax them the equivalent of this middle ground, and then remit this money towards LICG services or
                  towards LICGs on completion of their program, or even into general revenue?
   Unlikely that Canadians would be willing to work for this small salary – or to live in someone else‘s home when they already
    have family and/or residential connections
   If you seek to abolish the program, you have to address issues like the reasons why people come to Canada to work as LICGs,
    the economic disparity and/or conditions in source countries, and/or structural problems in the Canadian labour force


                                                        D. Students
                                                                                                                        CB 279-288

                                                            Key questions
   Should immigration officers have discretion to determine who is a ―bona fide‖ student if the applicant meets the statutory
    criteria relevant to obtaining a study permit (or an extension)?

   Foreign students as a source of considerable revenue for school boards and post-secondary institutions
   CIC must balance boosting foreign exchange with risks posted by those who would exploit the system
   Regulations ss. 210-212 provide rules for FNs who want to study in Canada
   FNs must hold a study permit, with exceptions
             o   Family members or private staff members of foreign representatives; member of visiting armed forces; duration of
                 studies is 6 mo. or less (s. 30(2) – though they may still apply to avail selves of Regulations s. 215 exception
                 below); family members of some FNs
             o   Minor children studying at pre-school, primary, or secondary level (processed as foreign students if outside
                 Canada)



                                                          Page 29 of 74
Immigration and Refugee Law (Fox-Decent)                                                                 Dorian Needham (Fall 2007)
   FNs required to apply for a study permit before entering Canada, with exceptions under Regulations s. 215: study permit
    holders; those who were to be here for 6 mo. or less (IRPA s. 30(2)) and apply to renew; work permit holders; subject to
    unenforceable removal order; TR permit holders; applied for permit and was approved but permit not yet issued
   Length of course into which FNs are accepted is often a more important consideration than the number of months that entrants
    intend to study
   Issuance of permit
              o   Regulations s. 219(1): application must be accompanied by acceptance letter (minor children can obtain letter at
                  visa post or port of entry  TR status)
              o   Regulations s. 220: applicant must have sufficient resources for first year of studies, including tuition, self-
                  maintenance, and transport
              o   Regulations s. 216: permit issued if on examination IO determines that FN applied in accordance with section, will
                  leave Canada at end of authorised period, and is not inadmissible; IO can also decide on validity period and
                  whether to impose conditions
              o   Operational goal: minimise further transactions with the student by issuing a long-term study permit
   Employment
              o   Can work on-campus, or in related facilities if authorised and related to work grant
              o   As of 2006, can work off-campus if educational institution has singed agreement with province/territory
              o   Post-graduation, can apply for one- or two-year work permit without HRSD employment validation, if work is
                  consistent with completed course of studies
              o   Spouses and CML partners can apply for open work permits without HRSD employment validation, if they meet
                  conditions including medical requirements
   Study permits renewable if application made before expiry and if complied with all conditions; if renewal not granted after expiry
    of visa, student holds ―implied status‖
   A primary condition is that an applicant must be a bona fide student

Kim v. Canada (Minister of Citizenship and Immigration), 2004 FC 55, [2004] F.C.J. No. 42 (FC-TD): CB 285-287
Facts
   K applied for student visa renewal after having taken a minimal course load and sometimes not attending courses at all, saying
    that he had to look after his children
   K claims that these concerns were not raised during his interview with an IO; the IO insists that they were, but didn‘t write down
    K‘s responses
Issues: (1) Was K a bona fide student? (2) Was the process procedurally fair?
Holding (Mosley): (1) No. (2) Yes.  Canada
   K introduced new evidence after the fact, which can‘t affect our assessment of the original process but can inform an
    assessment of his credibility
   IO‘s version of events (that he made K aware of CIC concerns) is to be preferred
   C asserts that IO was not obliged to record K‘s responses – but silence in IO‘s notes informs our assessment of procedural
    fairness, and applicants should be able to trust that IO will record a fair and accurate description of what happened
   IO did not consider irrelevant information or ignore evidence; evidence shows that K was not a bona fide student
Ratio
   Evidence that an applicant was not a bona fide student (e.g., course hours, grades, length of time taken to
    complete course) can be determinative to his/her application
   IO has no legal obligation to record applicant’s responses to issues raised in interviews, but it is a more practical
    and consistent way to make decisions
Notes
   Should an IO really be making this kind of determination?
   Why even have a bona fide student criterion, if minimum course load etc. are not part of the published requirements?
   K was taking the minimal course load, which he likely understood to be all that was required of him
   The IO here seemed to take a peculiar interest in K‘s case, phoning his university and confirming his habits/attendance – if most
    IOs don‘t/can‘t do this, what rationale is there for denying K‘s claim because he got a particularly curious IO?
   Policy guidelines around student TRs are (perhaps necessarily, given the varied nature of study programs) very varied
   People in graduate school often have low-intensity courses of study, so how to judge them?
   Cf. Baker: perhaps IO reacted to fact that K had children here, and just wasn‘t convinced that K was going to leave when his
    visa was up

   Wen v. Canada (2002, FC-TD): administrative decisions in study permit applications should be accorded considerable
    deference in favour of the government because, pursuant to Li v. Canada (2001), the procedural requirements arising in
    student visa applications are to be “relaxed”, with no requirement that an applicant be given a full opportunity to respond
    to IO‘s concerns


                                               E. Breach of Conditions
                                                                                                                         CB 288-289

Dinh v. Canada (Minister of Citizenship and Immigration), 2003 FC 1371, Imm. L.R. (3d) 167 (FC-TD): CB 288-289
Facts: D (Vietnamese) came to Canada on a student visa but then worked in a restaurant and was issued with an exclusion order
Issue: did D breach the conditions of his student visa and thus merit the exclusion order?
Holding (von Finckenstein): yes  Canada
   Should not distinguish between full-time wage-earning work and part-time work completed for other compensation
Ratio: breach of conditions merits deportation or claim refusal

                                                          Page 30 of 74
Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
                                           IV. Permanent Residents
   PRs are people who come to Canada under a number of classes: skilled workers (most well-known), provincial/territorial
    nominees (QC has own program, subsequent to agreement reproduced at CB 141 that it will not take people inadmissible as
    Canadian PRs but seeks to exercise more discretion amongst admissible applicants), live-in caregivers who finish their time as
    TRs, refugees who succeed with refugee claims
   So long as you are a PR, you can enter Canada freely and move around freely; main disability vis-à-vis citizens is that you are
    deportable


                                      A. Economic Class: Skilled Workers
                                                                                                    CB 293-294, 299-324, 365-368

                                                           Key Questions
   Why does Canada limit entry under this class to skilled workers? Should entry be so limited if there is a labour shortage in a
    low-skill sector?
   Is patent unreasonableness the best standard of review for decisions regarding whether applicants have met the specified
    criteria?
   Should immigration officers be allowed to exercise discretion under the IRPA to disqualify economic applicants who attempt to
    bribe them? (Chen)
   Is Canada using ―economic‖ immigration to keep wages down (e.g., taxi drivers, cleaners)?
   If Canada does not have a labour shortage in terms of skilled labour, how much sense does it make to encourage immigration
    on this basis? Should Canada do so at all?

IRPA s. 12(2). Economic integration.
    (2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically
established in Canada.

   Underpinned by at least 3 policy objectives from IRPA s. 3(1): maximising social/cultural/economic benefits of immigration;
    building strong and prosperous (nation-wide) economy; successfully integrating PRs into Canada
   Hajariwala v. Canada (1988): immigration policy designed to permit immigration, not prevent it; restrictions should be perceived
    in positive terms
   Federal government adjusts numbers of economic class immigrants to be admitted on an annual basis, depending
    on state of Canadian economy and other factors
   Recently, economic class has accounted for 55-60% of new PRs
   Significant component of economic class is family members
   Number of immigrants, and economic/non-economic ratio, are contested: concerns that recent economic class immigrants less
    successful; worries that immigration leads to higher total GDP but not per capita
   Skilled workers chosen based on “point system”
   Federal skilled worker class are those who intend to reside outside QC (which has its own system)
   Most of our grandparents (mine included) wouldn‘t have been accepted to Canada under this point system
   Those who enter Canada as PRs can bring their family with them (see below)

Pass mark
   Set by the Minister of Citizenship and Immigration; the first big policy decision that the Ministry has to make every year
   Determined by a number of factors, including: number of applications being processed; number of skilled workers projected to
    become PRs; potential for establishment of skilled workers in Canada
   Minister may revise the pass mark at any time; new pass mark can be applied retroactively
   Was at 70 under old Immigration Act; new system and raising to 75 created huge backlog; now at 67 since 2003
   As the number decreases, more people will apply – so the number of applications can move considerably

Selection criteria
   IRPA Regulations s. 77: minimum statutory requirements/criteria must be met both at time of application and when visa issued
   Education (max. 25 points, Regulations s. 78(2))
              o    IOs to assess programs of study and award points based on standards extant in country of study
              o    If applicant has credentials but not corresponding years of study (elementary school onwards), IO to privilege
                   years of study when assigning points [though this means that ―whiz kids‖ are disadvantaged]
   Official languages (max. 24 points, Regulations s. 79)
              o    Applicant to specify which official language is to be considered his/her first official language
              o    Must produce evidence in writing of proficiency; onus is on applicant to prove claimed proficiency
              o    IOs not to use interview to assess proficiency (people who learn languages later in life will have a heavy accent;
                   there were many cases where people who speak fine but with an accent were ―reassessed‖ by IOs)
              o    The QC system places a significantly higher premium on speaking French
   Experience (max. 21 points, Regulations s. 80)
              o    Full-time (or equivalent) experience within 10 years preceding date of application
              o    National Occupation Classification (NOC) Skill Type 0 (management), A (professions), or B (technical, skilled
                   trades, paraprofessional) experience to be considered – not C (clerical/supportive) or D (sales, service, labour) –
                   failing which the application is automatically denied (with some exceptions: recall LICGs; seasonal agricultural,
                   construction, or textile workers)

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             o    NOC, maintained by HRSDC, includes description of more than 500 occupations, including duties, skills, aptitudes,
                  and work settings for each
             o    Experience must also be relevant to the education/NOC Skill Types/secured employment under which you are
                  applying
             o    Same problems as assessing foreign education/credentials: IO may lack necessary information to assess
                  application or may have preconceived ideas of applicant‘s ability to become economically established
             o    The idea here is that you can still get in if you don‘t have employment already arranged, because you offer skills
                  that Canada needs

Dogra v. Canada (Minister of Citizenship and Employment) (1999), 166 F.T.R. 264 (FC-TD): CB 307-311
Facts
   D (Indian citizen) applied for PR status with ―school‖ and ―guidance counsellor‖ as intended occupation
   Letters of reference described her experience as a counsellor in India, and subsequent work in US, in terms almost identical to
    NOC description
   At interview, IO raised with D the relevance to Canada of her experience in India, and suggested that she might have trouble
    finding a job in the current labour market
   D informed that she had been rejected because she didn‘t met statutory admission requirements; letter explained that ―I am not
    satisfied that you have one year of Canadian equivalent experience as a school and guidance counsellor. … you would not know
    how to provide personal guidance to Canadian students who, for the most part, come from an entirely different background than
    yourself‖
   With half or full credit for experience, D would have reached pass mark
Issue: did IO err in law in evaluating at zero D‘s experience as a counsellor in India?
Holding (Evans): yes  Dogra
   Regulations Schedule I (re: experience factor) does not require IO to determine whether applicant‘s experience is equivalent to
    that in Canada
   Schedule I to be interpreted consistently with purpose (provision of objective criteria for IOs to decide whether independent
    applicant will become successfully [economically] established in Canada)
   Possibility that experience will not permit applicant to obtain employment is a legitimate concern – but this is addressed at least
    partly by Education factor
   IO may consider relevance to Canadian context if (s)he feels that points awarded do not reflect reality, under discretion in
    Regulations s. 11(3) – but ―Canadian relevance‖ of applicants‘ education, training, and experience is better left to accreditation
    committees
   Immigration policy is focussing more and more on applicants‘ adaptability and flexibility
   IOs may not reject applicants by reference to criteria not included in legislation or regulations
   IO here exercised discretion unreasonably: reasons at odds with today‘s Canada, which is multicultural and not monolithic;
    wasn‘t in a position to discover appropriateness of D‘s experience to Canadian context
Ratio: not normally appropriate for IOs to engage in assessments of “Canadian relevance” of applicants’ education,
training, and experience, when they are consistent with terms of statutory criteria – this is better left to accreditation
committees
Notes
   Reading this judgment charitably, it reveals that we are a multicultural society and we can‘t prefer one culture over another
   However, it is arguable that, in relying on a particular culture image of Canada, the judge is engaging in the very type of political
    calculation that he is denying to the IO
   This case came out around the same time that the P&F test was consolidated

             o    Nehme v. Canada (2004): IO‘s duty to review alternative occupational classifications extends only to those
                  proposed by the applicant or those that any knowledgeable observer would recognise from the application
                  submitted

Sheikh v. Canada (Minister of Citizenship and Immigration), 2003 FCT 272 (FC-TD): CB 312-314
Facts
   S applied for PR status as a Contractor and Supervisor, Mechanic Trades under NOC
   He was assigned 5 units in education category and 4 in experience, totalling 54 points where the pass mark was 70
   S questioned refusal with reference to education and experience; refusal reconfirmed twice
Issues: (1) Were S‘s education and experience properly assessed? (2) Was the procedure unfair?
Holding (MacKay): (1) Yes. (2) No.  Canada
1. Education and experience
   S claims that IO‘s conclusions about type of diploma and certification he had were contrary to documentary evidence – but his
    application did not indicate completion of full-time studies leading to completion of trades training with certification
   S may have understood that his education qualification would merit more points, but did not convey this clearly in his
    documents  IO‘s assessment was not unreasonable
   S claims that, despite his job title, his work was as a Foreman for many years – but his employer‘s records say otherwise  IO‘s
    assessment was not unreasonable
   Appropriate standard of review is patent unreasonableness; here, IO‘s assessments are not of that nature  upheld
2. Procedural unfairness
   Madan (1998): it is applicant‘s responsibility to put before IO all material necessary for a favourable decision; IOs under no
    general duty to ask for clarification or additional information before rejecting an application on the grounds that submitted
    materials were insufficient to satisfy criteria
Ratio
   It is applicant’s responsibility to put before IO all material necessary for a favourable decision

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Immigration and Refugee Law (Fox-Decent)                                                                   Dorian Needham (Fall 2007)
   IOs under no general duty to ask for clarification or additional information before rejecting an application on the
    grounds that submitted materials were insufficient to satisfy criteria

   Age (max. 10 points, Regulations s. 81): significant age bias in selection criteria
   Arranged employment in Canada (max. 10 points + 10 bonus, Regulations s. 82)
           o    ―Offer of indeterminate employment in Canada‖ qualifies
           o    10-point bonus for arranged employment if HRSD provides permanent confirmation (as labour market opinion) that
                there is a shortage in Canada of skills required to fill the position
   Adaptability (max. 10 points, Regulations s. 83)
           o    Educational credentials of spouse or partner
           o    Previous study or work in Canada
           o    Relatives residing in Canada as citizens or PRs
   Settlement funds (no points, Regulations s. 76(1)(b))
           o    Applicants must have ―minimum necessary income‖ to support self and family for six months
           o    Levels calculated with reference to Statistics Canada‘s current annual Low Income Cut-Off

Processing skilled worker applications
   Lock-in date
             o    A reference point used to freeze certain factors for the purpose of processing an individual’s
                  application for permanent residence
             o    Occurs when an IO has accepted an application and had received all required fees (this is the only date in
                  applicant‘s control, so the only fair option)
             o    The policy/operation distinction justifies the existence of a lock-in date despite that the Minister can retroactively
                  change the pass mark
   Interview
             o    If you‘re within 10 points of the pass score, you‘re often invited by a consular official for a 15-minute interview
             o    There are often debates (see below) about what point value should be assigned to particular components of
                  applications – letters can go back and forth
   Discretion
             o    Historically, Canada’s immigration laws have afforded IOs wide discretion
             o    Regulations s. 76(3): IO may substitute for normal criteria their evaluation of the likelihood of the skilled
                  worker to become “successfully established in Canada” (can override points total), if (s)he has good reasons
             o    IO must obtain concurrence of second officer prior to exercising this discretion
             o    Yan (2003): if applicant has requested a consideration under s. 76(3), IO must do so (though need not necessarily
                  conduct an interview)
             o    No obligation to engage s. 76(3) if applicant does not request it

Chen v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 639 (FCA): CB 318-324
Facts
   C worked in Canada, then US, then applied for PR status and was awarded sufficient points
   First interview with IO Trillo led to indication that he‘d passed, but he and family would have to pass medical and security tests
   Security clearance was slow in coming; C sent Trillo a Christmas card with money in it; Trillo informed her supervisor
   C‘s case was reassessed in an interview with IO Spunt in which the bribe issue was raised slowly and late in the interview; C
    finally admitted and apologised
   Spunt requested and obtained discretion to engage s. 76(3) and override C‘s point total
Issue: what is scope of discretionary power given to IO use discretion?
Dissent (Robertson, reasoning adopted by SCC): see below  Chen
   C acted wrongly, but legislation wasn‘t intended to give IOs such huge measure of residual discretion to decide whether an
    immigrant is suitable or not as a future member of Canadian society
   Other factors of suitability, etc. are to be addressed by other provisions of the Act, not IO‘s discretion
   ―Alleged bribe‖ can‘t be either a relevant or an overriding factor in evaluating whether C will be able to establish himself in
    Canada
   Nervous that courts will have to evaluate objective merit of IOs‘ subjective assessments
Ratio: determination criteria as applied by IOs to economic migration cases must be restricted to matters relating to
applicants’ ability to make a living (i.e., economic criteria) – should not be influenced by conduct suggesting moral
turpitude (which is addressed by other parts of the Act)
Holding (Létourneau, 2-1): see below
1. Exercise of discretion
   Act references ―personal attributes and attainments‖, which suggests that one issue is suitability of applicant and dependents to
    become successfully established in Canada beyond simple economic factors
   Some selection criteria relate to economic factors; others (age, education, etc.) refer more to ―social success, that is to say an
    immigrant‘s ability or chances of successfully establishing himself or herself socially in Canada‖
   Defining the selection criteria as economic is a narrowing of the statutory test
   IO exercising discretion can refuse to issue a visa if (s)he has good reason to believe that points don‘t reflect applicant‘s chances
    of becoming economically and/or socially established
   IO properly exercised discretion
2. Procedural fairness
   Doesn‘t matter that C was not told at beginning of Spunt interview about bribe; content of procedural fairness is variable, and
    questions need not be asked in a particular order
   C was properly informed that his conduct (alleged bribe) would be considered in eventual decision

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Immigration and Refugee Law (Fox-Decent)                                                                   Dorian Needham (Fall 2007)

   The standard of review for these decisions is patent unreasonableness – but is this an appropriate standard given that it
    might be difficult to characterise PR decisions as only relating to fact, instead of mixed fact and law?

Critiquing the system
    CIC shifted from traditional focus on assessing immigrants against list of occupational demands in Canada to a ―human capital‖
     approach focussing on transferable skill sets
    Not Just Numbers, 1997: skilled workers fill shortages in Canada, encourage competitiveness, etc.
    Regulatory Impact Analysis Statement accompanying IRPA: new selection grid would enable Canada to respond to a
     demographic crunch
    Stoffman: Canada does not have a labour shortage; immigration to ―do the jobs Canadians won‘t‖ is a false premise, because
     Canadians would do these jobs, but not for low waves  immigration is used to keep wages down  poverty maintained
     amongst immigrants
    We invite people to pass our points system, but then don‘t always recognise their qualifications – so they end up being our taxi
     drivers etc.
    Fox-Decent: ―quota‖ is a forbidden word, but CIC does set ―targets‖ loosely in the upper echelons of the Ministry (usually about
     220-250K)
              o    These targets are met by allocating resources (e.g., consular offices – how many? where?)
              o    We‘ve already seen that the distribution of consular resources does not reflect demand or population – may reflect
                   ―historical ties‖ to some degree, but perhaps not legitimately


                                                       B. Family Class
                                                                                                                CB 369-395, 399-420

IRPA s. 12(1). Family reunification.
   (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse,
common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.

   IRPA lists family reunification in Canada as one of its objectives  permits citizens or PRs (not FNs) 18+ to sponsor FNs who are
    members of the family class for admission to Canada as PRs
   Have a right to make the application and have it determined
   Must undertake to support the relative or family member and their accompanying family members for 3-10 years
   Those who enter this way are not required to meet economic class criteria (this explains why people typically apply in this
    category if possible, rather than as economic immigrants); spouses, common-law partners, and children are still
    admissible if they have a medical condition that could place excessive demand on social services (except if contagious)
   Approximately 30% of overall annual immigration consists of family class members and accompanying dependants
   Successful applicants in any class may bring with them spouses/common-law partners and dependent (grand)children – these
    are “accompanying family members” as opposed to “members of the family class”
   Immigration statistics tend to include accompanying family members in the same category of admission as the principal
    applicant  significant effect on perceptions of proportion of immigrants entering Canada in various streams
              o   Family class traditionally perceived at about 30% and economic immigrants at about 60%
              o   If disaggregated, family class and accompanying family members actually account for about 60% and economic
                  immigrants at about 30%
   Family class members are:
              o   Spouses or common-law or conjugal partners 16+
              o   (Grand)parents
              o   Dependent (adopted) children
              o   Children below 18 whom the sponsor intends to adopt
              o   Children under guardianship
              o   Orphaned brothers, sisters, nephews, nieces or grandchildren below 18 and not married or in common-law
                  relationship
              o   One relative of any age if there is no aunt, uncle, or family class member from the list above who could be
                  sponsored or who is already a citizen, PR, or Indian
   Brothers and sisters not on the list  sponsorship of a parent becomes the available legal means of facilitating sibling unification
    (but only if FN sibling is dependent child of the parent)

                                                            1. Partners

                                                         Key questions
   What challenges are posed by arranged marriages in which the couple may not know each other very well?
   Are non-exclusive (polyamorous) couples barred from sponsoring each other as conjugal partners?
   Should polygamy bar approval of PR applications when the applicant is a mother with Canadian-born children, as it does now?
   If someone makes a failed refugee claim, should they be barred from obtaining sponsorship as a member of the family class?
   Compare the status of ―war brides‖: should such brides be disentitled from collecting on their husbands‘ life insurance and
    veterans‘ benefits?

   Non-Canadians in a conjugal (mutual commitment to a shared life to the exclusion of all other conjugal relationships;
    interdependency) relationship with a Canadian citizen/PR do not have a right to live in Canada – but may be sponsored


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Immigration and Refugee Law (Fox-Decent)                                                                    Dorian Needham (Fall 2007)
   “Spouse” not defined in IRPA or Regulations, but apparently intended to refer to a man and a woman who are married
    (though same-sex marriage is now likely recognised: see below)
   ―Common-law‖ and ―conjugal partner‖ apparently defined in gender-neutral terms
              o    Common-law partner must have cohabited with sponsor for at least one year in a conjugal relationship
              o    Conjugal partner is a FN residing outside Canada in a conjugal relationship with the sponsor for at least
                   one year – often applies where parties cannot cohabit for economic, immigration, etc. reasons
   FN spouses or common-law partners who live in Canada may be sponsored from within Canada (exception for general rule), as
    long as not subject to a removal order
   Average time for approval of inland sponsorship application is approx. 6 mo.; those who cannot enter Canada because of visa
    issues etc. may apply from abroad, where processing time varies from 8-17mo. (should not enter from outside or apply
    simultaneously as a TR, as the very foundation of this application is your intent to leave again – instead, dual intent usually
    works the other way around, with the TR visa preceding the PR application)
   Visitor visas generally not granted to those wishing to enter Canada for the purpose of having their applications processed from
    within Canada
   IRPA requires a marriage to be valid under laws or jurisdiction where it took place (formal validity: technical
    aspects of the marriage ceremony) and Canadian law (essential validity: legal capacity to marry)

Bhatti v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 333 (IAD): CB 373-375
Facts
    B (PR in Canada as of 2000) had long-distance telephone arranged marriage to wife in Pakistan in 2001; father signed wedding
     certificate on his behalf
    At interview, wife forgot year of wedding, mixed up date of husband‘s departure to Canada
    B and wife have never met as adults, and never consummated the marriage
    Wife was denied standing as member of family class 2003
Issue: (1) Is the marriage valid according to Pakistani law? (2) If so, is the marriage genuine or was it entered into for immigration
purposes?
Holding (Manglaviti): (1) No. (2) N/A  Canada
    Non-compliance by B‘s father and B with respect for formalities of law rendered it void  not a valid marriage in law  B‘s wife
     is not a member of the family class
Ratio: marriage must demonstrate formal validity under the laws of the jurisdiction where it was performed to effect a
family class application for sponsorship
Notes: given that law is moving toward recognising people in common-law or conjugal relationships as having capacity to sponsor
their partners, does it make any sense not to allow people like B to sponsor their partners? (this is a residue from the former
Immigration Act)

Macapagal v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 21 (IAD): CB 375-381
Facts
   M (from Philippines, PR in Canada) met partner in June 1999, married her 2001, they lived together as husband and wife 3
    weeks
   M came back to Canada and hasn‘t returned to be with partner since; now seeks to sponsor her as a conjugal partner
   IO found that marriage was void, as M was subject to Filipino law wherever he went, and Filipino law does not recognise M‘s
    prior divorce and prohibits bigamy
Issue: are M and partner in a relationship that can be described as conjugal in nature?
Holding (D‘Ignazio): no  Canada
   M argues that his relationship is conjugal: lasted more than 1 year; sexual relations; frequent communication; wish to be
    reunited in Canada to start a life together
   ―Conjugal partners‖ are different from common-law partners and spouses in that they are eligible for PR status only in the
    context of a family-class sponsorship – but not as an accompanying family member [under IRPA Regulations s. 1(3)]
   [description of criteria below and process below]
   These characteristics originally applied to couples living together for family law purposes – but in immigration
    hearings the fact situation can be different because the couples are often apart
   No cohabitation; wife remained silent (did not testify); M didn‘t (couldn‘t?) articulate much about his relationship with her; little
    detailed knowledge; no evidence of emotional tie; no interdependence; no joint decision making  no conjugal relationship
Ratio: two-step process for determining family-class status as a conjugal partner
1. Molodowich (1980): whether or not a partnership has characteristics of a conjugal relationship (none is
    determinative)
   Shelter: live together in the same home as a couple
   Sexual and personal behaviour: exclusive and committed, with evidence of interaction
   Services: sharing of household and family-type responsibilities; mutual assistance in times of need
   Social activities: shared time and leisure activities; relationships and/or interaction with each other‘s family
   Economic support: financial interdependence (e.g., joint ownership or assets)
   Children: attitude and conduct towards them in context of relationship
   Special perception: treated and perceived by the community as a couple
2. Purpose: partnership as bona fide for purposes of immigration to Canada; evidence must establish that conjugal
    relationship is not a bad-faith relationship (not genuine, and not entered into primarily for IRPA status proposes)
Notes
   The relationship can be undertaken partly for immigration purposes – but this can‘t be the primary reason
   Is the second step of the test already satisfied by the seven criteria of the first step?
   Why is the illegality of the marriage under Filipino law (cf. Bhatti on formal validity) at issue here?


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Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
   Issue of whether there is a free-standing HR to sponsor family members have never been addressed by Canadian
    courts
            o  Perhaps unsurprising, as it would place positive obligations on the state
            o  No mention of a right to family life under Canadian constitution
            o  This distinguishes Canada‘s constitution from other documents (like EU fundamentals), which recognise a right to
               family life
            o  2006: Israeli High Court of Justice majority upheld a law abolishing the right of Israeli citizens to sponsor spouses
               from Gaza and the West Bank, as no fundamental rights breached and proportional to security objective;
               dissenting judges ruled that Israel‘s Basic Law included a right to family life and equality, both of which were
               violated by the restriction and disproportionate to security objective

Same-sex relationships
  IRPA administrative solution to prior inability to sponsor same-sex partners: IOs invited to process a family class application
   made on behalf of a same-sex partner as if the foreign national was applying the skilled worker class of economic immigrants, or
   to process on H&C grounds
  1994-2001: approx. 700 same-sex partners admitted through this mechanism (anecdotally, success rate was approx. 100%)
  2002 IRPA was self-consciously designed during the same-sex marriage debate, and left room for inclusion here
  Now: citizens and PRs can sponsor same-sex partners if they met criteria of conjugal or common-law partners and
   otherwise fulfil sponsorship prerequisites
  No apparent obstacle to recognising the validity of same-sex civil marriages performed in Canada for immigration
   purposes

Caron v. Canada (Minster of Citizenship and Immigration), [2005] I.A.D.D. No. 89 (IAD): CB 383-386
Facts
    C (Canadian) and partner (Italian) met on the internet; first physical meeting June 2002, then August 2002; decided to live
     together; meanwhile, spent all available time together
    C‘s partner came as soon as commitments were addressed in May 2003; started combining affairs economically
    C applied for landing of his partner, but was refused on the grounds that the relationship was not a qualified conjugal
     partnership
    Agency representative, at pre-hearing meeting, stated that relationship appeared bona fide, apparently began in June 2002, and
     if application was made today C would probably succeed
    Relevant time period is October 2002 – October 2003
Issue: was C‘s relationship a qualified conjugal partners under the IRPA definition?
Holding (oral decision): yes  Caron
    Burden on C to show on balance of probabilities that his relationship meets the definition of conjugal partners
    M. v. H. (1999): criteria may be present in varying degrees and are not all necessary for relationship to be found to be conjugal;
     neither opposite- nor same-sex couples are required to fit the traditional marital model to qualify as ―conjugal‖; flexible
     approach is needed
    C has demonstrated a conjugal partners relationship
Ratio: using a flexible approach based (but not dependent) on the conjugal partners criteria, a bona fide relationship
lasting more than one year prior to application may qualify as conjugal for the purpose of family-class sponsorship

Polygamous relationships
   IRPA prohibits sponsorship of more than one intimate partner
   Polygamy is also a criminal offence in Canada, but polygamous situations arise occasionally

Awwad v. Canada (Minister of Citizenship and Immigration), Docket IMM-1003-98: CB 387-390
Facts
   A (Jordanian) applied to PR status on H&C grounds 1993  denied
   Husband (had 2 wives) lived with first wife and children in Canada
   A applied again under H&C grounds and as self-employed
   IO rejected A on grounds that she did not qualify under definition of self-employed person; IO also considered that A was a
    second wife
   A claims that IO erred in overemphasising lack of business experience, and considered polygamy matters that were irrelevant
   Crown submits that IO‘s discretion was properly exercised, and that IO may consider if admission of parties to a polygamous
    marriage would be contrary to the Immigration Act
Issue: (1) Did visa officer err in determining that A was not qualified under self-employed category? (2) Did IO consider irrelevant
considerations in refusing A – particularly that she was the second wife of a Canadian citizen?
Holding (Teitelbaum): (1) No. (2) No.  Canada
1. Self-employed person
   IO did place some emphasis on A‘s lack of experience, but this was not determinative; application was also considered in H&C
    grounds
   Experience as a self-employed person should be given more or less emphasis depending on the nature of the contribution the
    person is intended to make in Canada
   IO assessed experience correctly
2. Marital arrangements
   A‘s counsel first raised the family situation, and A had fair opportunity to present related information
   Children were considered in the H&C application; no error in IO‘s judgment
   A‘s family arrangement was not determinative of the decision to reject her application for residence in Canada  no grounds for
    intervention

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Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
Ratio
   Experience as a self-employed person may be a favourable factor in determining whether an applicant is likely to
    become successfully established in Canada, but isn’t the sole criterion to consider; must be considered in light of
    occupation sought to be undertaken in Canada
   A visa officer may consider whether the admission to Canada of parties to a bigamous or polygamous marriage
    would be contrary to the Immigration Act and the law of Canada – but arguably this consideration should not be
    determinative
Notes
   Would A‘s application have been assured if she had succeeded in applying as a self-employed person?
   Children over 18 can sponsor parents – this may have been an alternative means for A to acquire PR status

Relationships of convenience

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

   Difficult questions of fact and credibility; various criteria have been applied
   Arranged marriages not inherently less credible, but lack of prior acquaintance poses evidentiary challenges, and
    decision makers often attempt to assess the relationship against customary norms in community of origin
   Decision makers may also consider parties compatibility with respect to factors like age, education, and religion –
    but with caution
   Kaloti (2000, FCA): intention regarding the marriage is fixed in time at the time of the marriage (not at time of
    application) and cannot be changed – but now that the living-together criterion has been removed by the new IRPA, unclear
    whether the original-purpose criterion is still applicable
   Fox-Decent: the questions typically asked by IOs re: the ―legitimacy‖ of marriages are often ridiculous and trivial (e.g., ―What is
    your spouse‘s favourite colour?‖) and are often culturally loaded

Salh v. Canada (Minister of Employment and Immigration) (1988), 5 Imm. L.R. (2d) 114 (IAB): CB 391-394
Facts
   S had known husband in India before coming to Canada; later undertook arranged marriage and lived together 1 year
   Husband had left Canada; applied for PR status but (on advice of lawyer) didn‘t mention his marriage  denied; applied
    fraudulently for refugee status  denied
   S applied to sponsor her husband; IO refused on grounds that marriage was primarily for purpose of gaining admission to
    Canada through family class, and not with intention of residing permanently together; evidence was lack of knowledge about
    spouse, no proof of living together, infrequent communication, arranged marriage, and husband‘s prior false claims
   S claims that they talk every month on the phone, correspond weekly, love each other, and did not marry for immigration
    purposes
Issue: is S‘s marriage a relationship of convenience that disqualifies her husband from acquiring family-class PR status?
Holding (MacLeod, 2-1): no  Salh
   Husband‘s past dealings with immigration authorities have left much to be desired, and have been deceitful
   But marriage was arranged according to Indian traditional custom, and has created an enduring and genuine relationship
Ratio: double test disqualifies spouse if marriage is entered into (1) primarily for the purpose of gaining admission to
Canada and (2) not with the intention of residing permanently with the other spouse
Dissent (Townshend)
   Husband‘s state of mind is relevant, not S‘s; relevant timeframe is when marriage occurred
   Husband ha made a determined effort to remain in Canada by deceitful means that have not been justified
   This marriage was just a ruse to remain in Canada
   Onus is on applicant to prove on balance of probabilities that (s)he complies with Act and Regulations – has not discharged it
    here
Notes
   Majority said that you have to consider marriage at the time performed, that they‘d communicated despite separation
   What affect should husband‘s lying have on our opinion of this verdict?
   Is it appropriate here to consider the wife‘s needs, as a Canadian citizen?
   Circumstances will affect our view of this: If husband had been refused because he lied, an then returned home and was
    tortured, would we refuse him refugee status because he‘d lied previously? If he wanted to drive a taxi to send remittances to
    his starving family at home, would we think differently of his application?
   The questions of lying and duplicity are addressed again in de Guzman below

Discussion: war brides
   People often got married in a hurry when the (usually, man) went off to war, so that partner left behind could claim veterans‘
    benefits and/or life insurance if soldier was killed
   Why has there been no hue and cry in Canada about this practice, when similar marriages of convenience for immigration
    purpose are rejected?

                                                            2. Children
                                                                                                                          CB 399-420

                                                           Key questions

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Immigration and Refugee Law (Fox-Decent)                                                                    Dorian Needham (Fall 2007)
   If parents themselves can put up the money required for sponsorship, is there any reason that children-citizens should be barred
    from sponsoring them?
   In de Guzman, Evans JA characterises the refusal of the sponsorship application as a ―sanction‖. Should children suffer
    sanctions as a result of parental misconduct?
   What is the alleged relationship between de Guzman‘s prior conduct and her interests under s. 7? (cf. (G.)(J.))
   Does Evans JA‘s interpretation of IRPA s. 3(3)(f) articulate an appropriate account of the intersection between international and
    domestic law in this context?
   Is the relevance of s. 3(3)(f) to most of the IRPA gutted by Evans JA‘s suggestion that an H&C application can permit conformity
    with international law?

   Dependent children (biological or adopted) can be sponsored for PR status by parents who are citizens or PRs if:
              o    Less than 22 years old;
              o    Dependent substantially on parent(s) since before age 22 and a full-time student (may require proof; Sandhu
                   found qualitative and quantitative aspects, not only attendance but ―genuine and meaningful commitment to the
                   program of study, even if the effort did not materialize into good grades‖); OR
              o    Dependent substantially (in relation to the country in which the applicant resides, not to Canada) on parent(s)
                   since before age 22 because of physical or mental condition
   Relevant date is age of the child at the time the application was received; the 22-years-old limit reflects schooling, as well as
    different cultures‘ typical age of independence/majority
   Children under 18 may not sponsor parents
   Definition excludes children in a married or marriage-like relationship with another person  potential clash between
    policy of delineating the scope of the family class and IRPA legislative objectives (e.g., best interests of children)  resolved as
    a matter of right (Charter s. 7) or discretion (H&C)? (a fuzzier distinction since Baker)

de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436: CB 400-419
Facts
   dG (Filipina) applied to Canadian embassy in Manila for PR visa as the unmarried daughter of a Canadian citizen, telling IOs she
    was single and had no dependents other than a daughter, when in fact she also had 2 sons  successful
   8 years later, applied to sponsor sons as members of family class  accepted initially
   Sons then received a letter refusing them a visa under Regulations s. 117(9)(d) because had not been examined for immigration
    purposes when G applied to come to Canada
Issue: (1) Is s. 117(9)(d) authorised by the IRPA? (2) Does it violate parent‘s rights under Charter s. 7 by preventing parent-child
reunification? (3) Is it inconsistent with int‘l HR instruments protecting the right to family life?
Holding (Evans): (1) Yes. (2) No. (3) No.  Canada
   Family reunification is an objective of the IRPA
   Section 117(9)(d) since amended to bring back into family class those non-accompanying family members not examined
    because an IO deemed it unnecessary
   If s. 117(9)(d) is valid, sons are not members of family class
   If dG had disclosed sons‘ existence on her application, would likely have been refused because their birth certificates (unlike
    daughter‘s) listed dG as married
   No doubt that dG‘s misrepresentation was intentional
1. IRPA authorisation
   IRPA is “framework legislation”: core principles and policies, with secondary ones left to Regulations  broad delegations of
    legislative power
   Drafted in language that confers wide regulation-making powers exercisable by GGinC
   Regulations are rarely found invalid by the courts
   Not fatal to a policy decision that some irrelevant factors are considered; only when the decision is based entirely or
    predominantly on irrelevant factors that it is impeachable
   dG claims that s. 117(9)(d) is invalid because GGinC took irrelevant considerations into account, since the exercise of
    regulation-making powers in various Divisions of the IRPA are mutually exclusive – but s. 117(9)(d) falls under IRPA s. 14(2),
    which confers broad regulation-making powers, and Parliament didn’t mean to make each Division watertight
   Regulations may provide for any matter relating to the application of the Division in which the enabling clause is contained; no
    reason to think that regulations relating to the application of one Division may not take into account factors relevant to the
    subject matter of another Division
   Would impede effective administration of immigration to interpret IRPA as precluding that, in addition to removal,
    other sanctions may be imposed on someone who misrepresented a material fact to gain entry to Canada
   Should interpret IRPA to provide for regulatory flexibility; Divisions were destined to make Act easy to follow, not to create
    watertight compartments
   G claims that IRPA s. 13(1) creates a ―substantive‖ right to sponsor children that is thwarted by s. 117(9)(d) – but regulations
    can affect substantive matters, s. 13(1) is expressly ―subject to the regulations‖, and s. 14(2) authorises regulations to
    ―prescribe and govern any matter relating to‖ family class and sponsorship
2. Parents‘ Charter rights
   dG claims that s. 117(9)(d) deprives her of right to liberty (fundamental personal choices) and security of the person
    (psychological stress), and that her sons have a constitutional right to enter Canada that is incidental to her own rights – but
    this is not psychological stress, and she left them voluntarily 12 years ago
   Insufficient nexus between s. 117(9)(d) and dG‘s separation from her sons
   Sons have other means to enter Canada: dG could have made an H&C application on her sons‘ behalf
3. Int‘l HR instruments
   If Parliament had intended to give int’l instrument superiority over IRPA, it would have said so explicitly


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Immigration and Refugee Law (Fox-Decent)                                                                   Dorian Needham (Fall 2007)
   Principle 1: giving int‘l instruments superiority doesn‘t respect legislative process; the ―international human rights instruments to
    which Canada is signatory‖ and that are supposed to be considered under s. 3(3)(f) are not a self-defining class (otherwise
    Executive would assume control over lawmaking)
   But Principle 2: CML has given expanding role to int‘l law in the interpretation of domestic law; tentative steps to engaging more
    with int‘l law
   Parliament should not be presumed to legislate contrary to int’l instruments binding on Canada, but non-binding
    instruments are no more than persuasive and contextual
   IRPA must be construed and applied in a manner that complies with int‘l instruments that Canada has signed – it does not
    incorporate these instruments into Canadian law (this is too large a claim to ascribe to s. 3(3)(f))
   There used to be an opinion that int‘l law would only come into play to resolve ambiguities; this is too narrow, as int‘l law has to
    be understood as playing a larger role (esp. given that it is directly referenced in the IRPA)  note the reference to instruments
    that ―Canada has signed‖, rather than to all int‘l law or even to all binding int‘l law
   A legally binding int‘l HR instrument to which Canada is signatory is determinative of how IRPA must be interpreted and
    applied, in the absence of a contrary legislative intention (Parliament can‘t be held to have intended int‘l law always to trump in
    the event of a conflict, based solely on one line in a large Act)
   Unnecessary to decide here the effect or role of non-binding instruments, but Parliament probably meant them to be
    persuasive and contextual (not determinative) in interpretation and application of IRPA, and not all will be equally persuasive
   This case is distinguishable from others because H&C application still available, even though sons themselves must
    initiate it
   Convention on the Rights of the Child makes children‘s rights a primary consideration, not the primary consideration – not every
    statutory provision must comply, if best interests of the child are considered over all (here, H&C application is the avenue)
Ratio
   Not fatal to a policy decision that some irrelevant factors are considered; only when the decision is based entirely
    or predominantly on irrelevant factors that it is impeachable
   Should interpret IRPA to provide for regulatory flexibility
   Under IRPA s. 3(3)(f), a legally binding int’l HR instrument to which Canada is signatory is determinative of how
    IRPA must be interpreted and applied, in the absence of a contrary legislative intention
   Non-binding instruments are persuasive and contextual (not determinative) in interpretation and application of
    IRPA, and not all will be equally persuasive
   Not every provision must comply with binding int’l instruments that Canada has signed; instead, the impugned
    provision considered together with others must comply
   If IRPA compliant with int’l instruments, no inquiry; if non-compliant, must determine whether relevant enabling
    section of IRPA authorises GGinC to enact a regulation rendering IRPA non-compliant with a binding int’l HR
    instrument (need a clear legislative intention)
   H&C application is a safety valve protecting parents’ Charter rights and Canada’s int’l obligations despite restrictive
    regulations
Notes
   Fox-Decent: de Guzman is the most important case since Baker
   The Minister chose not to pursue the option of deporting dG for having filed a fraudulent application in the first place
   In part 2 above, we don‘t even get to the principles of fundamental justice, because instead we have a rehearsal of the doctrine
    we‘re already familiar with, because deportation etc. are not seen to engage s. 7 interests

   Dela Fuente v. Canada (2005)
            o    The relevant time period for the s. 117(9)(d) inquiry extends continuously from the initial filing of the
                 application to the landing at the port of entry
            o    Foreign nationals may define their family unit and make changes up until the moment they seek to enter Canada –
                 this is how family reunification is achieved under IRPA
            o    Section 51 imposes an obligation on applicants to disclose change in marital status between time when visa
                 obtained and time when entry is sought – but this is not redundant, because the two sections employ different
                 means

Synthesis: int‘l obligations

                                              binding (ratified)                             non-binding
      IRPA                                    determinative                                  persuasive & contextual
      IRPA Regulations                        look at Regulation-making power in IRPA

   Incorporating int‘l obligations generally
                  Recall Baker: Canada‘s domestic claw to be interpreted consistently with int‘l law wherever possible; dissent
                   argued that this was getting int‘l law not yet ratified by Parliament in through the back door (now IRPA includes
                   specific reference to children‘s best interests)
                  In a majority gov‘t where executive can pass whatever it wants, why is the executive/legislative distinction
                   regarding int‘l law preserved? Doesn‘t this make Canada a hypocrite on the world stage, allowing it to say one
                   thing internationally and do another domestically?
                  Courts are keen to preserve the division of powers, which is arguably a fiction but still democratically important
                  The int‘l obligations we have addressed so far have been difficult to contest (all HR-based) – but what about trade
                   agreements like NAFTA: are we as willing to endorse executive action in this case without Parliamentary approval?
                   Couldn‘t the SCC declare NAFTA tribunals in that case unconstitutional?
                  Courts regularly impose duties (e.g., fairness) not inscribed in statute
   Int‘l obligations and H&C discretion

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Immigration and Refugee Law (Fox-Decent)                                                                     Dorian Needham (Fall 2007)
                 In de Guzman, H&C powers were essentially used as the mechanism through which IRPA was demonstrated to be
                  in conformity with int‘l law (provisions don‘t conform, but room for discretion does)
                 Fox-Decent: if there is discretionary power to approve an application on H&C grounds, it is almost always true that
                  you could exercise this discretion in favour of some HR norm or int‘l legal obligation
                          So instead of reforming our legislation, we can just bypass it
                          This effectively ousts IRPA s. 3(3)(f)
                          Should instead perhaps consider int‘l law differently and outside H&C considerations, as we are short-
                           changing the value of int‘l law
                 An increased role for H&C discretion also implies an increased role for judicial oversight
                 Is substance creeping into the field of procedure here?

                                                          3. Sponsorship
                                                                                                                  CB 434-452, 458-460

                                                              Key questions
   What, if anything, justifies the differential treatment of family class sponsorees (must be a financial undertaking) and
    accompanying family members (no financial undertaking)?
   Why do we not insist on similar undertakings for those who are about to bring a citizen into Canada by birth?
   Should sponsored women in abusive relationships have an entitlement to favourable H&C consideration?
   Should the law be reformed so that sponsors cannot withdraw a sponsorship application once it is submitted?

General requirements
  Sponsors must be 18+, resident in Canada, file application in accordance with IRPA
  Sponsors must undertake to reimburse Canada for every social assistance benefit provided to sponsored for FN for 3 (spouse) or
   10 (other) years
  Sponsor may be rejected for reasons related to criminality and financial status
  Sponsors can appeal refusal to the IAD, unless FN is inadmissible on grounds of misrepresentation, security, violating HR or int‘l
   rights, organised criminality, or recent conviction in Canada to 2+ years imprisonment
  IAD cannot exercise H&C jurisdiction if FN does not fall in definition of family class or is sponsor does not come within definition
   of a sponsor
  Macklin, ―Public Entrance/Private Member‖: CB 434-440
             o   Economic underpinnings: sponsor must demonstrate sufficient income to support the applicant, provide for
                 financial needs up to 10 years, ensure that sponsored FN does not become a state burden
             o   What legal difference does it make if one acquires PR status based on point system or familial
                 relationship?
             o   Some spouses of citizens/PRs apply to immigrate from within Canada (can take up to 2 years)
                          Until application is ―approved in principle‖, cannot work legally, ineligible for social benefits, vulnerable to
                           husband‘s withdrawal of sponsorship application ( processing ceases and liable to removal)
                          Dependency: women in family class know that continued presence in Canada depends on relationship to
                           a private actor
                          Vulnerability: to exploitation and abuse; connection between immigration status and abuse of power
             o   Women sponsored from abroad enter as PRs, and can seek work immediately
             o   Expectation that family members will support one another (familialisation) does not apply uniquely to immigrants;
                 what is unique about immigration is additional means (sponsorship requirement) deployed to enforce
                 the norm on immigrant families
             o   Sponsorship requirement attributed to rise in Keynesian welfare state: more responsibility governments take
                 to ensure welfare of those under authority  greater need to circumscribe the boundaries of eligibility
             o   Sponsorship undertaking binds federal gov‘t and sponsor, but provincial gov‘t distributes welfare  used to be
                 poorly monitored and enforced
             o   “Deadbeat sponsor” now a target of enforcement, despite systemic factors affecting their ability to
                 fulfil the undertaking (poor communication, reasons beyond sponsor‘s control, deterioration of relationship)
             o   2004 policy change eliminated automatic deduction of social assistance payments to sponsored family class
                 members
             o   New IRPA
                          Offers an ambiguous response: eases some entry rules, imposes more stringent requirements on
                           sponsors; sponsored spouses and dependent children exempt from admission bar on grounds of
                           ―excessive demands on health or social services‖  intensification of familialisation strategies
                          May backfire where single parent below minimum necessary income (MNI) could benefit from having a
                           spouse to share the burden of childcare and/or allow one partner to work
             o   We impose sponsorship undertakings on immigrant families whose members arrive at different times
                 (here we have leverage), while families who arrive together are not similarly encumbered (might deter
                 principal applicant)
             o   Not obvious why immigrant families warrant greater surveillance of mutual support obligations than
                 Canadian families
             o   Desire to separate family members to reunite and need to secure state’s permission gives Canadian
                 government leverage to “familialise” social costs that it lacks in other domains
             o   IRPA permits state to strip PR status from a holder unable or unwilling to support self or any other dependent – but
                 this is rarely used because political/bureaucratic costs would be too high
             o   Family class is policymakers‘ and critics‘ least favoured class: no points system ―audition‖; eligibility is ascriptive,
                 not performative

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Immigration and Refugee Law (Fox-Decent)                                                                Dorian Needham (Fall 2007)
             o   CIC‘s Immigration and Citizenship Plan 1995-2000 called for reducing the number and proportion of family class
                 immigrants: ratio of family to economic class went from 3:2 in 1993 to 1:2 in 1998
                         Not just a definitional modification
                         Additional factors: downsizing led to delay and inefficiency; discretionary power exercised more
                         This delays family reunification while allowing Canada to benefit form presence of preferred
                          economic migrant
   Sponsors of spouses, CML or conjugal partners, and dependent children are exempted from meeting MNI requirement, but
    sponsors of others are not
   Fox-Decent: we are taking advantage of primary economic migrants‘ sunk costs in having immigrated here already

Fortaleza v. Canada (Minister of Citizenship and Immigration), [2005] I.A.D.D. No. 177 (IAD): CB 440-443
Facts
   F applied to sponsor her nephew (Filipino), but was denied because she didn‘t meet MNI requirement
Issue: are there, considering best interest of the child, sufficient H&C considerations to warrant special relief?
Holding (Kang): yes  Fortaleza
   IRPA objective is to see that families are reunited in Canada
   Discretionary relief is warranted here
   Salient factors: absence of any family member of F in Canada; strong emotional bond between F and nephew; MNI has
    subsequently been met and F has resources to assist nephew in resettlement
Ratio
   Test for H&C grounds: facts established by evidence that would excite in a reasonable man a desire to relieve the
    misfortunes of another, if misfortunes warrant granting of special relief (Chirwa v. M.M.I.), but considerations need
    not be extraordinary and can be ordinary love and a desire to be together (Joharifad v. Canada)
   Salient factors can include presence/absence of family members of sponsor/applicant; emotional bond; MNI

Women sponsored by husbands or partners (Sheppard, ―Women as Wives‖: CB 444-452)
  Domestic violence and immigrant women
           o    General obstacles
                        Isolating shame and fear characteristic of abuse situations are amplified by language isolation
                        For many women, leaving husband or calling police is not an option, as it does not address other aspects
                         of suffering (economic insecurity, isolation)
                        Challenge of adaptation, language problems, different social structures, and highly patriarchal cultures of
                         some immigrant communities
                        Often hesitant to contact police for fear of racist treatment of husband by Canadian police
           o    Structural obstacles rooted in immigration law
                        Precarious or uncertain immigration status, or status linked to spouse‘s  fear that breaking up family or
                         leaving husband will jeopardise right to stay in Canada
                        Concern that criminal charges against husband will affect his right to remain in Canada
                        So: perceived choice between staying in abusive relationship or putting immigration status in
                         jeopardy
                        Difficulties where the abuser is the legal sponsor for immigration purposes
  Immigrating wives and the spousal sponsorship system
           o    Female immigrants more likely than males to immigrate under family class provisions
           o    Immigration process systematically structures sexual inequality within the family by rendering one
                spouse (usually the wife) legally dependent on the other
           o    For women who immigrate as sponsors, the husband is the ―citizen-sponsor‖ and they are the non-citizens 
                reinforces vision of the family in which husband/father is head of the family and wife/children are
                economic dependents
           o    Immigrant women awaiting sponsorship
                        Often reside in Canada on temporary visa
                        Sponsoring spouses may unilaterally decide to withdraw their sponsorship application at any
                         time until is processed  violent/abusive spouse may threaten to withdraw sponsorship application if
                         wife leaves or displeases him
                        If application withdrawn, IOs immediately determine if application has already been processed: if yes,
                         spouse has right to be landed and sponsorship cannot be withdrawn; if no, case reviewed to see if there
                         are H&C grounds to accept new immigrant despite breakdown in sponsorship arrangement
                        Guidelines for H&C assessments are problematic
                                   Continue to include criterion of ―significant degree of establishment‖, rather than considering
                                    applicant‘s potential establishment; unrealistic requirements on immigrant women in abusive and
                                    isolated family circumstances; favour economic autonomy and integration into the community,
                                    when dependency and isolation often exaggerated by sponsorship system itself
                                   Failure to resolve the uncertainty facing an abused immigrant woman regarding her immigration
                                    status; guidelines do not require specific outcomes
                                   Domestic violence not in and of itself sufficient to ensure acceptance based on H&C grounds; just
                                    one factor among many
                        So immigrant women faced with abuse might hesitate before seeking discretionary relief from immigration
                         authorities
           o    Sponsored immigrants and domestic violence
                        PRs formally enjoy all rights and privileges accorded to PRs; husbands are bound by sponsorship
                         agreement and cannot unilaterally withdraw

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Immigration and Refugee Law (Fox-Decent)                                                                    Dorian Needham (Fall 2007)
                           Many immigrant women lack information, and believe that they risk deportation, loss of custody of
                            children, or economic destitution if they challenge or leave an abusive husband who has sponsored them
                           Ideological or symbolic significance of being sponsored creates a sense of dependency, a belief that one is
                            not a citizen in one‘s own right, but a contingent citizen  invisibility and lack of status
   By linking immigration status to marital status, sponsorship provisions recall the historical practice of basing a wife‘s nationality
    and citizenship on the status of her husband
   Convention on the Elimination of all Forms of Discrimination Against Women requires granting equal rights with regard to
    nationality of selves and children – but gender-neutral modern law continues to enforce gendered patterns of
    immigration
   Conclusion
              o   Law reform should build upon women’s agency, while recognising the real systemic constraints and
                  forms of oppression in everyday life
              o   Need immediate, short-term measures that improve functioning of the existing system without questioning its
                  underlying assumptions and ideology, and the need for more radical and transformative reform measures that
                  bring into question the underlying assumptions of current laws and policies
              o   So: must address problems with current regime while upholding its basic framework
              o   In situations of domestic violence, must ensure that immigration law and policy are not obstacles to a women who
                  is seeking safety and basic protection of her bodily integrity and emotional well-being – this should be the standard
                  against which any reform is measured
              o   Specific suggestions
                           Change sponsorship process so that an application, once made, cannot be unilaterally revoked
                           Revise H&C guidelines to specify that if a women faces domestic violence, she will be assured that her
                            application will be accepted

Family members and inadmissibility
  IRPA s. 40 enables minister to find a FN inadmissible if sponsored by an inadmissible person
  IRPA s. 42 renders a (non-protected) FN inadmissible if an accompanying family member (or non-accompanying family member
   under IRPA Regulations s. 23) is inadmissible
  FN who is the accompanying family member of an inadmissible person is inadmissible
  IRPA Regulations s. 117(9)(d) precludes subsequent sponsorship of members of the family class if the sponsor did not disclose
   existence of family members when applying for PR status (see De Guzman)

Synthesis and further points
   CIC often imposes DNA requirement to prove a family relationship where there is no official documentation: expensive,
    intrusive, prolonged delays
   Refugee claimants required to identify family members as soon as they make their refugee claim in Canada
              o    Canadian Council for Refugees has suggested that those indentified should be assumed to be refugee‘s family
                   members unless evidence calls the relationship into question
              o    Council has called on federal government to bring spouses and children of recognised refugees into Canada
                   immediately and to include processing of sponsorship from within Canada
   Financial eligibility rules and their negative impact on family reunification: IRPA barred sponsorship for persons in receipt of
    social assistance (for a reason other than disability), making it beyond the reach of many immigrants
   Some argue that declining economic performance of family class immigrants in recent years is sufficient reason to further
    restrict the sponsorship rules
   Trebilcock: should require sponsors to maintain social program insurance for the relatives they sponsor and exclude sponsored
    immigrants from social benefits


                                        C. Business Class – not discussed

                                                         V. Refugees
                                               A. International Context
                                                                                                                             CB 463-493

                                                              Key questions
   If states have jurisdiction over just their territory, what is legally objectionably about the US SC decision in Sale that denies
    refugee protection to claimants outside US territory?
   What legal arguments are available to challenge the Canada-US STCA?

Facts and figures
   All migrants are constrained by immigration restrictions in country they wish to enter – but restrictions are qualified by laws that
    protect refugees
   Refugee law focuses primarily on individuals outside their country of origin and who, as a result of feared persecution within that
    country, seek refugee state as defined by the 1951 Convention Relating to the Status of Refugees
   Convention refugees entitled to basic HR set out in Convention; treatment must be at least equivalent to FNs residing in
    that country
   Convention definition requires those seeking refugee status to be outside country of former habitual residence 
    does not apply to those who cannot leave
   Other than Convention refugees, at least 3 other categories

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Immigration and Refugee Law (Fox-Decent)                                                                     Dorian Needham (Fall 2007)
              o     Those who flee situations unrelated to persecution but qualify as refugees under regional agreements
              o     Those who are as above but cannot invoke a regional agreement
              o     Those who cannot return home but are not entitled to int‘l legal protection because they are nowhere defined as
                    refugees
     Palestinians in the Middle East are a source of perennial concern
     2005: UNHCR identified 20.7 million persons of concern, of whom 6.6 million internally displaced persons (IDPs)
     2007: approx. 10 million refugees; 2007 saw the first increase since 2002
     UNHRC not mandated to address IDPs  criticised for taking on responsibilities that compromise its mandated responsibilities

Asylum levels and trends in Canada and other refugee-receiving countries
   Canada (like others) has a system directly affected by refugee flows that change year-to-year
   Post-9/11, decline in overall numbers in refugee flows
             o     Overall decline in armed conflict
             o     OR industrialised states‘ interdiction systems have reduced asylum applications
   1970s: ―boat people‖ crisis; Canada mobilised and accepted approx. 40K
   1993: Canada accepted approx. 2600 Iraqi refugees
   Today: UNHCR is appealing for settlement of Iraqi refugees; last year, Canada accepted and settled 361; for 2008, Parliament
    has set a ceiling of approx. 1400
             o     Do people in leaky boats evoke more sympathy? Do far-away, landlocked people elicit less?
             o     Fox-Decent: room for reflection in the West about what we can do to ameliorate a problem for which we are largely
                   responsible
   Today: Afghanistan is the largest contributor to world refugee numbers

                                                 1. 1951 Refugee Convention

Refugee Convention art. (1)(a): a refugee is someone who, ―owing to a well founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group of political opinion, is outside the country of his nationality and is unable
or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being
outside of the country of his habitual residence as result of such events is, unable or, owing to such year, is unwilling to return to it‖

Historical background
    First legal instruments in 1920s/30s: group/category approach; protection based on ethnic or territorial origin
    WWII: countries sought immigration restrictions
    1945: approx. 30 million persons displaced; UN established International Refugee Organisation (IRO)
    1950: still nearly 1 million person displaced; UNHCR replaces IRO; Refugee Convention drafted

The   1951 Refugee Convention
     28 July 1951: 26 countries adopt UN Convention Relating to the Status of Refugees
     A legal compromise designed to limit UNHCR‘s role to resolving those displaced in Europe post-WWII
     1967 Protocol Relating to the Status of Refugees eliminated time/geographic constraints, freeing UNHCR to address refugees
      worldwide
     Convention provided first int‘l definition of a refugee and standards for their treatment
     Most fundamental protection: prohibition of “refoulement”
     Question of whether Convention applied to individuals or to large-scale movements (Convention silent on this) became pertinent
      1960s/70s; UNHCR expanded scope of operations
     Hathaway, The Law of Refugee Status: CB 469-471
               o   Convention also has provisions dealing with dual/multiple nationality and circumstances that lead someone to
                   become or cease to be a refugee
               o   Strategic conceptualisation of refugee definition
                           Priority given to those whose flight is motivated by pro-Western political values, which were under threat
                            in Soviet (and Soviet-dominated) areas
                           Persecution standard had previously been used to embrace Soviet bloc dissidents post-WWII
                           Carefully phrased to address persons discriminated on criteria in regard to which East bloc practice was
                            historically problematic (e.g., those persecuted for civil/political status are protected, but those denied
                            rights like food/health care/education are not)
                           An incomplete and politically partisan HR rationale
               o   Eurocentric focus
                           Conducive to post-war European refugee burden
                           Scope of mandatory int‘l protection limited to those whose flight was prompted by a pre-1951 event within
                            Europe
                           Tended to distribute European refugee burden without binding obligation to reciprocate through
                            establishment of rights for or protection of non-European refugees
                           Protocol only expanded this 15 years later
                           1967 Protocol achieved formal, but not substantive, universalisation of Convention refugee status; no
                            review of the substantive elements  most Third World refugees still excluded
     Regional documents
               o   OAU (now African Union) Convention Governing the Specific Aspects of Refugee Problems in Africa: those fleeing
                   indiscriminate effects of violence/war entitled to claim refugee status (appropriate given majority of reasons for
                   movement in Africa)


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             o    OAS Cartagena Declaration: qualified recognition of generalised situation giving rise to flight (must demonstrate
                  danger to life, safety, or freedom); not formally binding, but incorporated into nat‘l legislation of some Latin
                  American states
             o    EU Common European Asylum Section‘s ―Qualification‖ section: subsidiary form of protection to third country
                  nationals and stateless persons (not EU citizens) who do not qualify as refugees; UNHCR has demonstrated concern
                  over potentially restricted effect on application of Convention

Principle of non-refoulement

Refugee Convention art. 33(1): No Contracting State shall expel or return (―refouler‖) a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a
particular social group or political opinion

   Paramount protection: obligation of states-parties to refrain from returning refugees to face danger to their lives or
    freedom
   Exception in art. 33(2) where claimant is a danger to security of country or has been committed of serious crime
   Non-refoulement as a principle of customary int’l law
   Some states refuse to extend the benefit of non-refoulement to asylum seekers who present themselves at a frontier post, port,
    or airport; even less agreement of application of the principle on the high seas

                                                            2. UNHCR

   1949: UNGA establishes UNHCR for 3 years; extended for 5-year periods since
   Two primary functions: international protection for refugees; seeking ―permanent solution‖ to refugee problems

International protection
   Promoting adoption of int‘l instruments for the protection of refugees, supervising their implementation
   K‘ing states agree to cooperate with UNHCR in exercise of its functions
   Now offices in 116 countries, $1 billion budget, and capacity to provide not only legal protection but relief
   Critical role in development of int‘l refugee policy
         o    Expanding concept of Convention refugee
         o    Development of refugee status determination procedures and policies
         o    Reminder of int‘l obligations
         o    Forum for policy development
         o    UNHCR Handbook is influential and relied on by courts in signatory states
   Has undertaken refugee status determination (RSD) in countries where governments cannot
         o    Dominant RSD decision maker in Asia, Middle east, and parts of Africa
         o    Does not always meet own standards: secret evidence, failure to provide reasons, lack of independent appeal
              procedure, denial of counsel, untrained interpreter (criticisms similar to those we‘ve applied to the Canadian system)
         o    2005: released document containing core standards and principles to be applied in all offices

Durable solutions
   3 typically promoted
        o     Repatriation (when conditions permit it safely)
                     Recently assumed growing precedence
                     Many are eager to return, but considerations are mostly political (refugees perceived as a threat to security)
                     UNHCR has emphasised safe return rather than voluntariness  arguable creation of ―doctrine of imposed
                      return‖
        o     Local integration in country of asylum
        o     Resettlement in a third country when neither other option is possible
                     Currently 187 countries that have resettlement programs
                     UNHCR often refers refugees for selection to appropriate embassies

Conclusions of the Executive Committee
   Composed of representatives from 68 member states; meets annually in Geneva
   Conclusions are not formally binding, but are important source of interpretive guidance; strong political authority
   Federal Court has given them ―considerable weight‖

Mandate refugees and ―persons of concern‖
  ―Mandate refugees‖
        o   Persons considered by UNHCR to be refugees according to its mandate (Convention + Protocol) – but does not require
            state of asylum to be a party to either instrument
        o   Receive UNHCR assistance but do not benefit from all Convention refugee rights unless recognised by a state party
  ―Persons of concern‖
        o   Beyond statutory definition
        o   States‘ willingness to provide protection to refugees has diminished
        o   UNHCR has broader humanitarian role than originally envisioned
        o   Increasingly involved in assisting stateless persons

New approaches

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Immigration and Refugee Law (Fox-Decent)                                                                     Dorian Needham (Fall 2007)
    2001: 15 countries reaffirm commitment to Convention, principle of non-refoulement
    2002: UNHCR completes Agenda for Protection, a comprehensive framework for global refugee policy
    2002: High Commissioner launches ―Convention Plus‖ process
         o   Seeks to engage states and partners in developing multilateral special agreements aimed at more effective
             responsibility-sharing
         o   3 priority challenges: strategic use of resettlement; more effective targeting of development assistance to support
             durable solutions; clarification of state responsibilities regarding irregular secondary movements of refugees and
             asylum seekers
    2003: UNHCR Frameworks for Durable Solutions for Refugees and Persons of Concern

                                                           3. Interdiction

    1980s: Northern states launch series of interdiction measures aimed to prevent or at least deter irregular migrants
     from reaching their territories
    Often enacted cooperatively
    Dramatic decline in number of asylum seekers has failed to dampen enthusiasm for the measures; post-9/11, many
     governments have enhanced them
    Undermines critical protections for asylum seekers and refugees, often violates non-refoulement provisions
    3 types of restrictions
          o   Measures designed to prevent undocumented travellers from entering the state territory
          o   Measures deigned to shift the determination procedure to other countries
          o   Measures designed to make conditions for those awaiting a decision uncomfortable with a view to discouraging others
    E.g., Canada requires airlines to ensure that passengers flying to Canada have visas
    E.g., Australia considers its sea borders not to be its territory for asylum purposes, so that it is not required to process those
     who are stopped at sea (whether en route to Australia or elsewhere)

Interception at sea
   UNHCR defines interception as encompassing all measures applied by a state outside its national territory to prevent,
    interrupt, or stop the movement of persons without the required documentation from crossing international
    borders and making their way to the country of prospective destination
   One of the most direct means by which state seek to prevent asylum seekers from gaining access to their territory and domestic
    asylum procedures
   Some interdicting states have defended their policies using sovereignty arguments
   Sale (1993, US SC)
         o   Interdiction of Haitians on the high seas was permissible because neither US Immigration and Nationality
             Act nor Refugee Convention applied to persons outside US; duty of non-refoulement does not apply to act
             of repelling asylum seekers from beyond one’s territory
         o   Criticised by many; UK CA 2003 decision called in ―wrongfully decided‖
         o   Petition regarding interdictions of Haitians submitted to Inter-American Commission on Human Rights

Inter-American Commission on Human Rights, Report No. 51/96, Decision of the Commission as to the Merits of Case
10.675 United States (13 March 1997): CB 480-485
1.  American Declaration of the Rights and Duties of Man, art. XXVII: ―Every person has the right, in case of pursuit not
    resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each
    country and with international agreements‖
   Two cumulative criteria: (1) “accordance with laws of each country” and (2) “accordance with international
    agreements”
a. International agreements
   Int‘l law has developed such that refugee claimants have a right to a hearing to determine whether they meet Convention
    criteria
   Convention art. 33(1) on non-refoulement: US SC construed it as inapplicable where someone is returned from high seas to
    source territory – Commission does not agree, and art. 33(1) has no geographic limitations
b. Domestic laws
   Haitians and other refugees have the right to ―seek‖ asylum status in accordance with US law, but no mandatory grant
   Asylum only granted to refugees who meet the definition under US law and int‘l obligations
   US has recognised and acknowledge the right of Haitian refugees to seek and receive asylum in the US
   Interdiction is of refugees who are far from the US, and not necessarily heading there  interdiction might breach American
    Declaration art. XXVII rights of those claimants to seek status elsewhere
   US summarily interdicted and repatriated Haitian refugees without adequate RSD, and without granting them a hearing
2. American Declaration art. I re: liberty and security of the person – violated
3. American Declaration art. II re: equality before the law
   Violated, because Haitian refugees treated different from others (esp. Cubans)
   Breach of art. II arises not only in application of substantive right but also in respect of unreasonable differentiation in respect of
    actual treatment of persons belonging to the same class or category  finding for Haitians‘ substantive right to asylum under
    art. XXVII does not preclude a finding of breach of art. II in respect of unreasonable differentiation in treatment of Haitians and
    other nationals
   Adequate compensation is owed
Ratio
   Int’l law has developed such that refugee claimants have a right to a hearing to determine whether they meet
    Convention criteria

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Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
   Discriminatory treatment of refugees based on origin, and presumption as to their destination, is unjust

Discussion and analysis
   Fox-Decent: if pirates stop people on the high seas and turn them back, that‘s simply piracy – how is the US‘s action different?
   The US is acting contrary to the spirit of something to which it is a signatory
   US DoJ said in 1980s that it could not be sure that any more than 2/3 of boats intercepted were actually en route to the US
   If the US forces take these people on board US boats, how are they not on US territory?
   US justifies its action through Executive‘s power to determine who may or may not enter US territory; US Immigration and
    Naturalization Act only applies on US soil
   Canada, by virtue of its geography, does not have to address this issue anywhere near as often as US or Australia despite its
    extensive shoreline  most of our refugees come through the US

―Safe Third Country‖ agreements
   Seek to deny asylum seekers the opportunity to make a claim on basis that should have requested asylum in a
    “first country of arrival” or “safe third country”
   Nothing in the Convention imposes an obligation on refugees to seek protection in the country nearest their home or the first
    place they flee
   UNHCR has endorsed strategy of adopting agreed rules for states‘ responsibility to decide asylum claims – but without
    safeguards, these agreements can erode refugees’ rights and engage refoulement
   UNHCR, ―Safeguarding Asylum: Challenges to Protection‖: CB 486
         o    Safe third country agreements do not seem prima facie unreasonable: prioritise availability of protection over
              asylum seeker‘s choice of destination
         o    Application raises serious concerns, esp. if asylum seeker has no opportunity to rebut presumption of safety in
              country from which he has arrived, and if that country is unable to consider his claim consistently with int‘l protection
              standards
         o    Some countries have designated all neighbours as ―safe countries‖
         o    Might be possible to prevent asylum seekers from gaining access to territory without defining access to int‘l protection:
              ―offshore‖ or ―extraterritorial processing‖
   Convention does not specify RSD procedures  considerable variation; no mechanism for monitoring compliance
   Proliferation of responsibility-shifting strategies by states
   UNHCR ExCom recommendations: should establish that third country will treat asylum-seeker in accordance with accepted int‘l
    standards, ensure effective protection against refoulement, and provide possibility to seek and enjoy asylum
   Canada-US Safe Third Country Agreement (STCA)
         o    Initialled August 2002; US first ―safe country‖ designated by Canada
         o    Diminished number of refugee claimants in Canada
         o    US and Canada can return refugee claimants arriving at land border ports of entry to the country of last
              presence for RSD
         o    Exceptions: those charged with death penalty-punishable offences in US or elsewhere; Minister-imposed stay on
              removal orders; exceptions in art. 4 below
         o    Criticism: US is not necessarily “safe”
                       Propensity to permit foreign policy considerations to influence decisions on refugee admissions
                       System of expedited removals, permitting removal of FNs without proper travel documents (particularly for
                        those of Muslim/Arab descent: see Maher Arar)
                       Potential for long-term detention of those awaiting RSD (illegal under the Convention)
                       One-year time limitation for filing asylum claims
                       Significant difference between Canadian and US definition of refugee and RSD processes
                                Persecution based on gender or sexual orientation has not received the focus in US that it has in
                                 Canada
                                Those from certain countries face a 50% lower chance of being accepted in US than in Canada
                       Those who have supported terrorist groups are denied asylum – but it isn‘t always that simple (e.g., Sierra
                        Leone woman who provided ―shelter‖ to rebels in Sierra Leone – but they killed her relatives and forced her to
                         denied asylum)
         o    Criticism: lack of an appeal mechanism for denials of entry into Canada pursuant to the STCA

Agreement Between the Government of Canada and the Government of the United States for Cooperation in the
Examination of Refugee Status Claims from Nationals of Third Countries (5 December 2002): CB 489-493
  [long Preamble]
  1. Definitions
  2. Does not apply to citizens or habitual residence of Canada or US
  3. Parties shall not return or remove a claimant before RSD or pursuant to other safe third country agreement
  4. Country of last presence shall examine refugee claim (exceptions: persons who have at least one family member with refugee
   or other legal status in Canada; person who have at least one adult family member with an RSD pending; unaccompanied
   minors; those who arrived in Canada with a valid visa or who did not require visas)
  5. Removal of someone through other party‘s territory who then makes a claim will be returned to country of last presence
  6. Either party can make RSD if it is in it‘s public interest
  7. May exchange information as necessary
  8. Shall develop operating procedures (incl. notification) and mechanisms for resolving differences (through diplomatic channels)
  9. Shall provide assistance to the other
  10. Enters into force through exchange of notes; termination on 6 months‘ notice; can be suspended for 3 months (renewable)
   at a time; may be amended

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Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)

Discussion and analysis
   Could be challenged on procedural unfairness if applicants processed in US undergo refoulement to HR violations – but would
    have to show lack of fair procedure in the US
   Fox-Decent: Canada wanted this agreement, and the quid pro quo is the imposition of greater border security measures (e.g.,
    requiring passports of Canadians)
   US would likely prefer to have control over asylum determination, rather than leaving it to Canada – so this agreement works in
    its favour too
   CCR v. Canada, 2007 (FC-TD) – just decided
          o  Challenge to regulations set up to implement Safe Third Country Agreement with the US
          o  Agreement has been criticised: US adjudicates claims differently (and more harshly) than Canada; limitation period
          o  FC-TD held in favour of challengers: first time that judge in Canada has found that executive, through its
             treaty-making power, is limited in implementation
          o  Charter and IRPA s. 102 set out preconditions that Cabinet must ascertain prior to designating a safe third country
             (preconditions: must be a signatory and compliant with Refugee Convention; also, signatory and compliant with CAT)
          o  Historically, treaty making power has been subject of much judicial deference
          o  Consequences of decision have yet to be felt; likely that government will appeal
          o  Popular commentary was against judgement (judge-made law; democracy; economic implications)
                     Both Globe and Gazette have taken time to write editorials criticizing the decision, arguing that Canada would
                      be forced to consider thousands more applications each year; that judge did not take into consideration
                      particular failures of US other than Arar case (which is an exception, non-refugee case) – but Arar being NOT a
                      refugee case suggests that things are even more wrong
                     Main focus of editorials: cost and administrative concerns – but reality is that Canada will be assessing as
                      many claims as it did in 1994; no evidence or claim by IRB that system was overtaxed in 1994
          o  As a matter of law, what could appeal court look to to overturn this decision?
                     May rely on deference arguments
                     FNs have no rights to enter  s. 15 should not be engaged
                     Interesting that some of these findings of fact are momentous (e.g., US failing to comply); appellate courts are
                      supposed to overturn finding of facts ONLY if palpable error
                     Appeals court may argue that there may be exceptional cases but violations do not rise to a level capable of
                      sustaining a conclusion that the policies and practices of US qualify as a failure to comply (i.e., though some
                      policies fail to live up, they are NOT the policies of general application operating in a time of emergency like
                      terrorism)
                     But we‘ve held exceptions such as Suresh; can‘t hold US to a higher standard than that we hold ourselves to;
                      not clear that we‘ve adopted the right standard (CAT suggests ―reasonable chance/possibility‖ standard, and
                      yet we hold claimants to a ―more likely than not‖ standard)


                                        B. Refugee Protection in Canada
   Two main components
        o  People seeing protection from outside Canada: Refugee and Humanitarian Resettlement Program
                   CIC works with UNHCR, referral groups, and private sponsorship groups to select refugees abroad for
                    resettlement in Canada
                   Prospective sponsors must meet eligibility requirements in IRPA Regulations
                   Refugees must establish that they are unable to return to country or nationality/fixed residence, unable to
                    remain in country of first asylum, pass medical/security/criminality screenings, able to re-establish themselves
                    in Canada (exception: those deemed vulnerable or in urgent need of protection)
                   May apply for PR visa at immigration office outside Canada
                   Canada can institute specific programs targeting particular groups (e.g., ―boat people‖ in the 1980s, Karen
                    refugees today)
        o  People seeking protection from within Canada: asylum
                   Focus of this section
                   Core: definition in Refugee Convention art. 1, incorporated into Canadian law by IRPA s. 96

                                                            1. Process
                                                                                                                              CB 537-544
IRPA s. 96. Convention refugee
A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
     (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
     (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
IRPA s. 97. Person in need of protection
     (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do
not have a country of nationality, their country of former habitual residence, would subject them personally
       (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against
Torture; or
       (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if

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Immigration and Refugee Law (Fox-Decent)                                                                    Dorian Needham (Fall 2007)
          (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
          (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or
from that country,
          (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international
standards, and
          (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
     (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.

   Claim for protection made at port of entry or at a Canadian Immigration Centre
        o    STCA and other developments have reduced claim numbers since 2004
        o    Eligibility based on s. 96 (incorporating Convention definition with very minor variations – see following sections)
                       Outside country
                       Fear (subjective)
                       Well-founded
                       Enumerated ground (race, religion, nationality, social group, political opinion)
                       Unable/unwilling
        o    Eligibility based on s. 97: personal subjection to danger of torture, risk to life, risk of cruel and unusual treatment or
             punishment
        o    Exclusions clauses from Convention have been applied to claimants under s. 97(1)  criticism for Canada‘s failure to
             comply with absolute prohibition on refoulement to places where claimants may face, e.g., torture
   Within 3 days, CIC officer at RPD makes determination as to eligibility
        o    Grounds for ineligibility:
                       Already a Canadian citizen
                       Refugee protection conferred under IRPA
                       IRB has already rejected refugee protection claim
                       Prior claim deemed ineligible, withdrawn, or abandoned [though presumably, with new facts, you could be
                        reconsidered]
                       Claimant recognised as Convention refugee by other country where he can be sent
                       Claimant came from country designated by regulations (currently, only USA under STCA)
                       Security, int‘l rights/HR violations, serious criminality, or organised criminality
        o    If determination not made within 3 days, file forwarded to full hearing, with eligibility to be determined later
        o    If refused, can appeal to FC-TD; further appeal to FCA (and SCC) possible on certified question of general importance
        o    If accepted
                       Claimant has 28 days to complete a Personal Information Form (PIF) for consideration by refugee protection
                        officer (RPO)
                       RPO decides whether application will be expedited
                                 If process to be expedited:
                                       o    RPO believes that
                                                     No issues need minister‘s attention
                                                     Claimant‘s identity sufficiently established
                                                     No substantial issues of credibility
                                                     Facts of case consistent with facts as known about country of persecution; case for
                                                      protection is made out
                                       o    Expedited process cannot harm the claimant (just designed to alleviate backlog: worst thing
                                            than can happen is referral to full hearing – otherwise we‘d be back with Singh)
                                       o    If successful, claim forwarded to board member who decides whether to accept it without a
                                            hearing
                                                     If successful, claim accepted
                                                     If fails, goes to full hearing
                                       o    If fails, goes to full hearing
                                 If process not to be expedited, claim referred to RPD for determination (full hearing)
   Refugee protection hearing (usually before single board member – used to be a 3-member panel)
        o    Claimants must satisfy the board on a balance of probabilities that they meet the criteria for refugee status or
             otherwise qualify for protection
        o    Refugee Appeal Division provided for in IRPA not yet implemented
        o    RPD has control over own procedures
        o    Informal and non-adversarial – but the new practice of reverse-order questioning means that the process begins with
             questioning the claimant, rather than permitting him to make a statement, which can seem adversarial
        o    Minister of Citizenship and Immigration may intervene at any time  explicitly adversarial
        o    Claimants and the minister entitled to be represented by counsel; parties may call witnesses
        o    IRPA instructs RPD to consider whether claimants possess acceptable documentation establishing their identity and, if
             they do not, whether they have provided reasonable explanation for lack of documents or have taken reasonable steps
             to obtain them
        o    Standard is “serious risk” under s. 96 or balance of probabilities under s. 97 that claimant fits the definition
             (Fox-Decent: ―fit‖ is a question of interpretation, an application of law to fact, so ―balance of probabilities‖ is a poor
             choice of terms)
        o    If successful, can apply for PR status
        o    If fails
                       Member must provide reasons, but they can be oral
                       Departure order  (potential) deportation order
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Immigration and Refugee Law (Fox-Decent)                                                                   Dorian Needham (Fall 2007)
                     Entitled to stay in Canada pending outcome of judicial review (FC-TD and maybe FCA) – except when RPD
                      states in division (in accordance with IRPA s. 107(2)) that there is no ―credible basis for the claim‖ – except if
                      court grants judicial stay on case-by-case basis
                               If successful, claim returned to RPD for rehearing with different panel
                               If fails, must depart Canada within 30 days (but can come back on TR visa), or departure order
                                becomes deportation order (cannot return to Canada without ministerial permission)
                                     o    Can apply for pre-removal risk assessment (PRRA) under IRPA s. 112-115
                                                  RPD required to inform unsuccessful claimants of this option
                                                  CIC officer (not RPD) assesses new evidence not available at time of refugee
                                                   hearing or ―reasonably available‖ at that time
                                                  Fox-Decent: few of these cases succeed, because everyone has a right to apply
                                                  If successful, gains refugee protection and can apply for PR status
                                                  In cases involving security/criminality issues, can get stay of removal but not
                                                   PR status application
                                                  If denied, removal order activated – but can apply for judicial review
                                     o    Can apply on H&C grounds (IRPA s. 25) to minister unlimited number of times
                                                  Can apply to courts for judicial stay of removal pending outcome – no guarantee
                                                  No right of appeal

                                                 2. Definition of “Refugee”
                                                                                                                           CB 547-567

   Criteria are elaborated in the sections below
   Interpretation according to Vienna Convention on the Law of Treaties

Vienna Convention art. 31. General rule of interpretation.
     (1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in
their context and in the light of its object and purpose. …
     (3) There shall be taken into account, together with the context:
          (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its
provisions;
          (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its
interpretation;
          (c) any relevant rules of international law applicable in the relations between the parties.
Vienna Convention art. 32. Supplementary means of interpretation.
     Recourse may be had to supplementary means of interpretation, including the prepatory work of the treaty and the
circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31…

         o   Article 31(1): Refugee Convention to be interpreted to permit widest possible exercise of HR
         o   Article 32 encompasses travaux préparatoires (in Pushpanathan both majority and minority made reference, but
             interpreted them differently)

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689: CB 547-567
Facts
    W (UK citizen) joined Irish National Liberation Army (INLA) 1983 as a volunteer because people had to ―take a stand‖ to protect
     their loved ones
    First task was to assist in guarding 2 hostages; INLA then ordered hostages executed
    W secretly released the hostages  confined and tortured by INLA, and sentenced to death
    Sought police protection  police charged him for his part in hostage-taking  expressed concern about wife and children
    Wife and children were taken hostage as collateral against W providing evidence to the police
    Near end of prison sentence, chaplain helped W obtain an Irish passport and tickets to Canada
    Admitted to Canada 1985 as a visitor, claimed Convention status 1986 based on fear of persecution because of membership in a
     particular social group
    FCA denied his claim because the state was not the persecutor, distinguished ―unable‖ from ―unwilling‖ in the Convention
     definition, ―particular social group‖ read to exclude terrorists/criminals
Issue: (1) Is state involvement a prerequisite to ―persecution‖ under the Convention refugee definition? (2) Does it matter whether
the claim is based on the “unable” or “unwilling” branch of the definition?
Holding (La Forest, 4-0): (1) No. (2) No.  Ward
    Refugee scheme as ―surrogate or substitute protection‖ activated only upon failure of national protection
1. State complicity
    Parties and interveners unanimously concluded that claimant‘s fear need not emanate from the state, and substantially agree
     that state‘s inability to protect is an integral component – this is substantially correct
    UNHCR Handbook: persecution can emanate from state or from sections of the population that do not respect the law if
     authorise tolerate it, refuse to protect, or are unable to protect
    ―persecution under the Convention includes situations where the state is not in strictness an accomplice to the persecution, but
     is simply unable to protect its citizens‖
2. Unable/unwilling
    The words have different meanings, but their application is blurred: ―unable‖ (physical/literal impossibility is one, but not only
     way, to trigger the definition – also includes ineffective state protection) is not always different from ―unwilling‖ (encompasses
     ineffective state protection as well), as suggested by FCA
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Immigration and Refugee Law (Fox-Decent)                                                                 Dorian Needham (Fall 2007)
   No need for a judicial gloss of ―unable‖ vs. ―unwilling‖
   With ―inability‖, protection is denied; with ―unwillingness‖, claimant opts not to approach the state because of an enumerated
    ground – in both cases state‘s involvement is not a necessary consideration, but does factor into whether a fear of persecution
    exists
3. Test for determining well-founded fear of persecution (all that follows must be ―by reason of‖ that fear)
a. Objective element: whether state is able to protect (if state is able to protect him, fear is not well-founded) – beyond this, no
    need for state complicity
   Claimant need not risk his life seeking ineffective protection of a state, just to demonstrate that ineffectiveness; only where
    protection ―might reasonably have been forthcoming‖ will failure to approach the state for protection defeat the claim (i.e., will
    not meet Convention definition if objectively unreasonable for him not to have sought protection of home authorities)
   Must provide clear and convincing confirmation [high standard] of a state‘s inability to protect; absent evidence, claim
    should fail because nations are presumed to be able to protect their citizens (essence of sovereignty)
   This presumption increases burden on claimant, but reinforces underlying rationale of refugee system and prevents protection-
    shipping
b. Subjective element: claimant‘s individual fear
c. Objective element: presence of persecution
   Once established that claimant has a fear, Board can presume that persecution will be likely, and fear well-founded, if there is
    an absence of state protection
   Acts by private citizens, when combined with state inability to protect, constitute ―persecution‖
Ratio
   State complicity is not a necessary component of persecution, either under “unwilling” or “unable” branch of the
    definition
   Subjective fear of persecution + state inability to protect creates presumption that he fear is well-founded
   Danger of presumption operating too broadly is tempered by requirement that clear and convincing proof of state’s
    inability to protect must be advanced
Issue: does Ward qualify as persecuted for membership in a particular social group?
Holding (La Forest, 4-0): no  Canada
   Three possible approaches
1. Wide definition (―particular social group‖ as a safety net filling in gaps in the other categories) – rejected
   Int‘l community did not intend to offer a haven for all suffering individuals
   Delegates inserted ―social group‖ category to cover a lacuna left by other four groups, but this does not mean that any
    association with a common thread is covered
   Must be read more narrowly
2. Narrow definition (per FCA, excluding terrorists, criminals, etc.) – rejected
   Such a restriction is unnecessary, as it renders redundant the IRPA‘s other exclusionary provisions at s. 19
   Claimants having established Convention status must still overcome s. 19, whose provisions give Minister enough flexibility to
    reassess inadmissibility where convinced of rehabilitation – restricting ―particular social group‖ would remove this power
    explicitly delegated by Parliament
3. Middle ground (scope confined by limiting mechanisms based on anti-discrimination notions) – accepted
   Must find inspiration in discrimination concepts
   Hathaway: lack of a meaningful stake in governance of their own society distinguishes refugees from others, and gives
    legitimacy to their desire to seek protection abroad – anti-discrimination law in Canada follows similar criteria
   Canada‘s obligation to offer haven to those fleeing their homelands is not unlimited
   Canada should not overstep its int‘l role by offering protection to any targeted group
a. Test – must distinguish between what one is and what one does, so groups qualify if they are: (a) defined by innate or
    unalterable characteristics (e.g., gender, language, sexual orientation); (b) associated by reasons fundamental to human dignity
    (e.g., HR activists); (c) associated by former voluntary status that is unalterable
b. Application to the case
   No dissociation from INLA membership had an impact on his fear; the fact that he is no longer a member is a result of the
    persecution, not its foundation
   Test – (a) INLA membership not innate or unalterable; (b) voluntary association with political goals, but not fundamental to
    human dignity (and abandoning it is not forsaking dignity); (c) still affiliated, so criterion does not apply
   W was the target of an individualised form of persecution, not because of group characteristics; he is threatened because of
    what he did as an individual, not because of his association; fear based on action, not affiliation
   W thus does not meet the definition of Convention refugee and cannot be admitted based on membership in a particular social
    group
Ratio: “particular social group” includes: (a) groups defined by innate or unalterable characteristics; (b) groups
associated by reasons fundamental to human dignity; (c) groups associated by former voluntary status that is
unalterable
Notes
   La Forest‘s analogy to a labour leader is a poor example, as in many parts of the world labour leaders are targeted by the state
    and are associated with political beliefs
   Full-on terrorist groups are unlikely to be recognised as social groups, because they are not designed to be protected by the
    Convention
   See further notes in Section 6 below
Issue: does Ward qualify as persecuted for political opinion?
Holding (La Forest, 4-0): yes  Ward
   Was not raised as ground for fear of persecution before Board or FCA; raised for first time before SCC
   UNHCR Handbook: not the claimant‘s duty to identify reasons for persecution, but rather for examiner to decide if definition is
    met  can raise political opinion at this stage


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Immigration and Refugee Law (Fox-Decent)                                                                    Dorian Needham (Fall 2007)
   Setting hostages free was only option that accorded with W‘s conscience; fact that he did not renounce sympathy for INLA‘s
    goals did not affect this – but it did make him a traitor to them
   This act was politically significant, and was the source of his persecution
   ―Not just any dissent to any organization will unlock the gates to Canadian asylum‖; the disagreement has to be rooted in a
    political conviction
Ratio: political opinion is “any opinion on any matter in which the machinery of the state, government, and policy may
be engaged” – need not have been expressed outright (though this may make it more difficult to establish relationship
between claimant and feared persecution), and need not conform to true beliefs (examination to be approached from
persecutor‘s perspective)
Notes
   We infer from W‘s actions that he had a particular political belief
   If W had been asked to kill his cousin instead of a stranger, would we still infer that his refusal was based on a political opinion?
Issue: do equality rights under Charter s. 15 come into play because persecution for membership in a social group, using above
criteria, will offer less protection to women and children?
Holding (La Forest, 4-0): no
Issue: does W‘s dual nationality preclude a successful claim?
Holding (La Forest, 4-0): yes  Canada
    Convention art. 1(A)(2) holes that ―‗the country of nationality‘ shall mean each of the countries of which he is a national‖ – not
     explicitly incorporated into IRPA but still relevant
    W was also a UK citizen and could have sought protection there
    Board failed to make a finding on this point; validity of W‘s claim hinges on this
    UK to be presumed capable of protecting its nationals
    W presented some evidence that UK anti-terrorism measures would preclude his entry or protection – but this must be assessed
    Case remitted to board for reassessment on this point
Ratio: claimant has burden to show a well-founded fear of persecution in all countries of which he is a national
Notes
    W‘s refugee claim against the UK was eventually denied
    W had established that police could not protect him in Northern Ireland, but not in Great Britain (which had allowed dual
     citizenship during W‘s lifetime)


                                                       3. Outside Country

                                                            Key questions
   Should ―potential‖ citizenship in safe countries be enough to disqualify otherwise bona fide refugee claimants to Canada (e.g.,
    Williams)?

   Int‘l system of refugee protection envisaged in Convention was premised on notion that first recourse for protection is to
    state of citizenship; int’l regime only to be used when primary source of protection failed  prerequisite of refugee
    status that claimant be outside state of nationality
   “Country of nationality” interpreted as “country of citizenship”
   Katkova (1997): possibility of Israeli citizenship isn‘t sufficient; must be able to show a ―genuine and effective link‖ as per ICJ in
    Notteböhm, which concluded that nationality in int‘l law to be decided on basis of “genuine and effective link”, considering
          o   Habitual residence of the individual
          o   Centre of the individuals‘ interest
          o   Individual‘s family ties
          o   Individual‘s participation in public life
          o   Attachment shown by the individual for the country and whether individual has inculcated his children in this
              attachment
   Stateless claimants: claim is assessed against ―county of former residence‖; where there is more than one, must show that on
    a balance of probabilities would suffer persecution in any country of former habitual residence (and cannot return)
   People can depart country of nationality for reasons unrelated to refugee definition, but events can make them refugees sur
    place
   People who freely made themselves liable to punishment for violating a criminal law of general application may not receive
    protection because they have ―manufactured‖ their refuge claim

Canada (Minister of Citizenship and Immigration) v. Williams, 2005 FCA 126: CB 570-572
Facts
   W born in Rwanda to Rwandan father and Ugandan mother; both Rwanda and Uganda transmitted citizenship by jus sanguinis
   Retained dual nationality until age 18 (2000), when retained Rwandan citizenship but ceased to be Ugandan citizen
   Could obtain Ugandan citizenship again, but only if he sacrificed Rwandan citizenship
   Filed for refugee status in Canada; IRB denied claim based on opportunity to acquire Ugandan citizenship (though he only lived
    there for 9 years as a child, and though he would have to renounce Rwandan citizenship)
Issue: do ―countries of nationality‖ in IRPA s. 96 include a country (here, Uganda) where the claimant can obtain citizenship if, in
order to obtain it, he must first renounce the citizenship of another country (here, Rwanda) and he is not prepared to do so?
Holding (Décary): yes  Canada
   Bouianova (1993): condition of not having a country of nationality must be one that is beyond the power of the applicant to
    control
   “Countries of nationality” includes potential countries of nationality


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Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
   W claims that Ugandan citizenship is contingent on renunciation of Rwandan citizenship, so cannot be said to exist at the time of
    hearing – but where citizenship is available, applicant is expected to make attempts to acquire it and will be denied refugee
    status if it is shown that it is within his power to acquire that other citizenship
   W claims that citizenship is a fundamental right that no one should be compelled to renounce – but this is too broad: no forced
    renunciation, no potential for statelessness, citizenship is preferable to refuge status; no deprivation where obtaining other
    citizenship is a matter of course
Ratio
   If it is within the control of the applicant to acquire the citizenship of a country with respect to which he has no
    well-founded fear of persecution, the claim for refugee status will be denied
   Even if one has only the potential of protection from a country other than that of one’s nationality, one is obliged to
    seek that protection
Notes
   This judgment seems to contradict the stated goal of refugee policy of encouraging repatriation (what if W wants to return to
    Rwanda one day?)
   The assumption throughout is that getting Ugandan citizenship is automatic – but nothing is ever that automatic, and a million
    things can go wrong (e.g., in Canada, giving a passport is still a Crown prerogative, not governed by statute and very
    discretionary)
   Someone can ―potentially‖ get citizenship from any country – so where do you draw the line?


                                 4. Fear of Persecution and Complicating Factors

                                                         Key questions
   What arguments might you use to appeal Hinzman?
   What complications to refugee status determination are posed by civil wars?

Interpretation of persecution
   Neither IRPA nor Convention defines ―persecution‖
   Ward: actions that deny human dignity in any key way; sustained or systematic denial of core human rights is the
    standard
   UNHCR Handbook draws a connection between serious harm and reasons for it
   Convention does not protect persons against any and all forms of serious harm; requires existence of risk of a type of harm
    that would be inconsistent with basic duty of protection owed by a state to its nationals
   Can be an issue where people leave a country where there is unrest and come to Canada, but wait to long to make the refugee
    claim that their subjective fear is questioned
   Passing through or staying in a third country can be seen as evidence of no fear of persecution

Persecution arising from cumulative effects of discrimination and harassment
   Can be the result of more than a single act or omission
   UNHCR Handbook: person may have been subject to various measures not in themselves amounting to persecution, sometimes
    combined with other adverse factors that, if taken together, produce an effect that can reasonably justify a claim to well-
    founded fear of persecution on “cumulative grounds”
   Not all persons experiencing discrimination are necessarily victims of persecution
   Persecution must be based on discrimination, which means making distinctions that principles of fundamental HR regard
    as inconsistent with the right of every human being to equal treatment and respect

Persecution and prosecution
   Persons fleeing prosecution and punishment under a law of general application are not normally refugees
   UNHCR Handbook: refugee is a victim of injustice, not a fugitive from justice
   Possible for a general law to violate fundamental HR and therefore have the potential to constitute persecution –
    but must be delicate when commenting on legitimacy of the laws of another country
         o   Zolfargharkhani (1993)
                    Facts: Z fled compulsory military service in Iran rather than gas Kurdish rebels
                    FCA related issue of conscientious objection solely to participation in chemical warfare and not to participation
                     in the military
                    Prosecution for breach of the ordinary Iranian conscription law thus amounted to prosecution for political
                     opinion
                    General principles
                             Intent or any principal effect of an ordinary law of general application, rather than
                              claimant’s motivation, is relevant to the existence of persecution
                             Neutrality of an ordinary law of general application must be judged objectively
                             Ordinary law of general application presumed to be valid and neutral; onus on claimant to
                              show that the laws are inherently or for some other reason persecutory
                             Not enough for the claimant to show that a particular regime is generally oppressive; must
                              show that law in question is persecutory in relation to a Convention ground
         o   Hinzman (2006)
                    Facts: H (US soldier) conscientiously objected to Iraq war, deserted, and claimed refugee status in Canada on
                     grounds that would be prosecuted and punished (e.g., persecuted) on return
                    Not every conviction will constitute sufficient reason for claiming refugee status after desertion or draft-
                     evasion – but where type of military action is condemned by int‘l community as contrary to basic rules of
                     human conduct, punishment for desertion or draft-evasion could be regarded as persecution
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Immigration and Refugee Law (Fox-Decent)                                                                Dorian Needham (Fall 2007)
                   In the case of a foot soldier like H, assessment of ―military action‖ relates to that ―on the ground‖, not to the
                    legality of the overall mission (here, the US invasion of Iraq)
                   H did not established that US has as a policy matter required or allowed its soldiers to engage in widespread
                    actions in violation of int‘l humanitarian law (finding of fact)
                   Here, fear of prosecution for desertion did not in itself constitute a well-founded fear of persecution under the
                    Convention
                   H had to establish that punishment he feared resulted from discriminatory application of the law or
                    that it would amount to cruel and unusual treatment/punishment – but any punishment here would be
                    just for breach of a neutral law that did not violate HR on its face or in its application
        o  Raveendran (2003)
                   Facts: R and son (Tamil) claimed refugee status on basis that they would face harm on return to Sri Lanka
                   FC-TD found that Sri Lanka‘s Immigrants and Emigrants Act was selectively enforced against Tamils, and
                    Tamils were unjustly treated under it
                   So: application of a law, rather than law itself, can be discriminatory
        o  Cheung (1993): “if the punishment or treatment under a law of general application is so Draconian as to be
           completely disproportionate to the objective of the law, it may be viewed as persecutory”
        o  Namitabar (1994)
                   Followed principles from Zolfargharkhani
                   FC-TD not convinced that law in question was of general application, and enforcement had potential to be
                    persecutory as penalty was disproportionate and no procedural guarantees
   Prosecution for an offence may be a pretext for punishing the offender for the expression of political opinions
    (UNHCR Handbook sets out criteria to examine)

Persecution in the context of civil war
   Definition of a Convention refugee does not exclude persons fearing return to situations of civil war: claimants must still
    satisfy all criteria for Convention status
   IRB‘s Civil War Guidelines: assessing harm feared and determining whether there is a link between persecution feared by
    clamant and ground for persecution found in the definition have proven to be the most difficult aspects of applying the
    definition in claims arising from civil war
   Salibian (1990) set out four cumulative principles (non-comparative approach: preferred)
         o    (1) Applicant does not have to show that he had himself been persecuted in the past or would himself be
              persecuted in the future
         o    (2) Applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be
              committed directly against him, but from reprehensible acts committed or likely to be committed against
              members of a group to which he belonged
         o    (3) Situation of civil war is no bar to a claim provided that fear felt is not that felt indiscriminately by all
              citizens as a consequence of the civil war, but that felt by applicant himself, a group with which he was
              associated or even by all citizens on account of a risk of persecution based on one of the reasons stated in
              the definition
         o    (4) Fear felt is a reasonable possibility that the applicant will be persecuted if he returns to country of
              origin
   Isa (1995): claimant must demonstrate a ―differential risk‖ to himself or his group, compared with other individuals or groups in
    the country of origin (comparative approach: not preferred)
   Civil War Guidelines advocate non-comparative approach in Salibian’s third principle: issue is whether claimant’s
    risk is a risk of sufficiently serious harm and is linked to a Convention reason; claimant should not be labelled as a
    ―general victim‖ of war without full analysis of the individual‘s personal circumstances and those of any group to which the
    person may belong
   Ali (1996): FC-TD advocated non-comparative approach: relevant issue is whether the clamant has made out a risk of
    sufficiently serious harm, and whether that harm can be linked to a Convention criterion
   Threshold test is the same as for other refugee claims: establish, on balance of probabilities, that there is a reasonable chance
    that you are at risk of persecution

Agents of persecution
   Ward: persecution need not emanate from state authorities
   UNHCR Handbook: acts committed by non-state agents can be ―considered as persecution if they are knowingly tolerated by the
    authorities, or if the authorities refuse, or prove unable, to offer effective protection‖

Gender-based persecution
  In most regions, women and girls constitute the majority of displaced and refugee populations
  Neither IRPA nor Convention makes reference to gender or sex
  Until recently, neither case law nor refugee policy recognised existence and impact of gender-related persecution if the refugee
   protection context
  1993: Canada sets worldwide precedent by releasing Canadian Guidelines on gender-based persecution
        o   Central issue is to ―determine the linkage between gender, feared persecution, and one or more definition grounds‖
        o   Four categories of gender-based persecution issues
                     Persecution on same Convention grounds and in similar circumstances as men
                     Persecution for reasons pertaining to kinship
                     Persecution from certain circumstances of severe discrimination on grounds of gender or acts of violence either
                      by public authorities or private citizens
                     Persecution for failure to conform to, or transgressing, gender-discriminating religious or customary laws and
                      practices

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Immigration and Refugee Law (Fox-Decent)                                                                    Dorian Needham (Fall 2007)
        o  IRB members expected to follow Guidelines unless compelling and exceptional reasons arise
        o  Canada as a leader in recognising gender-based persecution; courts willing to consider it as almost an analogous
           ground of persecution, but can group it under ―particular social group‖ prong (a) (see below)
   Gender-based claims must still be related to one of the existing five Convention grounds (awkward)
   Some commentators advocate Convention reform

                                                     5. Well-founded Fear

                                                        Key questions
   What are the consequences of the subjective element alleged to be a part of the element of a ―well-founded fear‖?

   Fear must include (1) subjective condition supported by (2) objective situation to be well-founded
   Fear of persecution to be assessed at time of examination of claim to refugee status
        o    The subjective element has been ―pulled out of‖ the Convention definition, though it does not figure in to the definition
             itself
        o    Where claimant lacks credibility, RPD can find no subjective basis for claim notwithstanding evidence of HR violations in
             claimant‘s country
        o    Claimant‘s statement must be viewed in context of relevant background situation
        o    Fox-Decent: strange that we are willing to send people back to objectively persecutory situation based on a subjective
             finding (essentially: punishing someone because they‘re irrational)
        o    Fox-Decent: subjective and objective elements work together; a shaky subjective fear can be justified by a strong
             objective fear and vice versa
        o    Generally, where there are god objective grounds, unlikely to be deep questioning of the subjective fear, assuming that
             their testimony is credible
   Ward: persecution need not come from the state itself or arise from state complicity (cf. HR‘s traditional interpretation
    as protecting individuals from the state); instead, an inability to protect will suffice
   Claimant must demonstrate on balance of probabilities that he has good grounds for fearing persecution, or that a
    reasonable chance of persecution exists
        o    Ponniah (1991): ―good grounds‖ or ―reasonable chance‖ = field between less than 50 percent chance (i.e., civil
             standard) and more than minimal or mere possibility
        o    Lai (1989): RPD must answer all evidence before it (incl. objective element), even if subjective element found lacking
             (if HR situation in country of origin is truly terrible, should at least respond to de facto presumption of fear)
        o    Fernandopulle (2005): no presumption that person having faced persecution in the past faces well-founded
             fear of persecution in the future (here, FCA contradicts UNHCR Handbook)
        o    Ward: if claimant established to have fear, RPD can presume that persecution will be likely and fear well-founded if
             there is an absence of state protection – but persecution must be real (presumption can‘t be based on fiction), but
             well-foundedness of fear can be established by presumption
        o    Galloway: Ward is unclear because does not specify whether criterion is ―honest fear‖ or ―fear based on reasonable
             grounds‖
        o    Timeframe in question is when the refugee protection claim is made
   Test of well-foundedness includes assessment of changed/changing country conditions – but decision-makers should not
    rely on apparently positive changes that are short-lived, transitory, tentative, inconsequential, or otherwise ineffective in
    substance or implementation
        o    More democratic a state is  more a claimant is expected to exhaust all available local courses of action
        o    Ward: individuals are not required to put themselves at risk by seeking “ineffective protection”
   Ward approach does not sit well with other decisions
        o    Villafranca (1992): FCA held that if a state makes serious efforts to protect its citizenry, fact that it is sometimes
             unsuccessful will not be sufficient to ground a successful refugee claim
        o    More recent case law has noted the dispute between these two cases
   New Zealand‘s approach is ―[p]erhaps the most coherent‖: state protection is adequate only if it reduces the risk of persecution
    below the threshold of ―mere possibility‖
   Note that this criterion (like the other here) does not apply to s. 97, which involves only an objective assessment

                                                  6. Grounds of Persecution

   Feared persecution must be connected to 1+ of the 5 enumerated grounds (same factors as figured into principle of non-
    discrimination in general int‘l law)
   Could group the five grounds into civil/political identity (race, nationality, social group) and belief (religion, political opinion)
   Don‘t always have to restrict the case for persecution to one ground; can combine grounds (Ward: not the claimant‘s duty to
    identify reasons for persecution, but rather for examiner to decide if definition is met); refugee law recognises the possibility of
    multiple, overlapping, or intersecting grounds of persecution
   The categories are designed to track arbitrary abuses of power that affect fundamental HR based on grounds that people cannot
    do anything about, or should not be expected to do anything about
   Fox-Decent: Ward focuses on the anti-discrimination, HR aspects of these grounds – and, in that respect, is spot on
   Perspective adopted is always that of the persecutor

Race
   UNHCR Handbook: race to be understood in its widest sense


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Immigration and Refugee Law (Fox-Decent)                                                                   Dorian Needham (Fall 2007)
   Courts decline to enumerate or elaborate on the notion of race  race is thought of in broad terms, based on person‘s self-
    identification
   Racial discrimination will “often” entail persecution (in other categories, discrimination per se is rarely considered
    persecution); unique status of this basis of persecution explained by jus cogens nature of prohibition of racial discrimination in
    int‘l law
   Fox-Decent: big overlap between race and nationality

Nationality

                                                           Key questions
   What is the proper scope of ―nationality‖ as a ground of persecution? How might it be expanded today?

   Waldman‘s four possible natures of persecution based on nationality, because of: foreign national status; statelessness; state
    having stripped portions of citizens of nationality, ascribing a new nationality instead; where new state formed of old ones,
    actual/perceived allegiance to former sovereign state
   UNHCR Handbook: “nationality” interpreted broadly to encompass not just citizenship but membership of an ethnic
    or linguistic group
   Can overlap the ―race‖ ground
   Nations no longer fully reflect the Westphalian notion of a nation as comprising one ethnic group; modern states are
    multicultural
   Aboriginal peoples were not originally envisioned – but their claims to self-determination have crystallised in the idea of them as
    a nation, and they may now make claims on the basis of nationality
   Again, nationality of the persecutor may play a dominant role in determining the nature or categorisation of the persecution

Religion
    UNHCR Handbook: right to change religion, right to manifest religion in public and private through teaching, practice,
     or observance
    Hui Qing Yang (2001, FC-TD): religion to be broadly interpreted to allow for claims based on religious beliefs, even if not
     party of organised religion; can cover cases where person‘s religious beliefs are that he rejects religion altogether; Falun
     Gong is considered by China to be a religion, so is for the purposes of the claim; Falun Gong partly religion, partly social group
    Restrictions on right to practice faith may amount to persecution
    Fosu (1994, FC-TD): right to freedom of religion includes right to demonstrate religion/belief in public
    Cases involving Pakistan‘s Ordinance XX (subjecting Ahmadi faith practitioners to severe sanctions) not yet successful
    Chabira (1994, FC-TD): religious belief not limited to that of claimant; persecutor’s faith may play a role
    May intersect with gender-based persecution; Canadian Guidelines encourage a gender-based analysis in application of
     grounds of religion and political opinion

Political opinion
    As defined in Ward
           o   Court chose less restrictive approach articulated by Goodwin-Gill: ―‗political opinion should be understood in the broad
               sense … any matter in which the machinery of the State, government and policy may be engaged. The typical
               ‗political refugee‘ is one pursued by the government of a state on account of his or her opinions, which are an actual or
               perceived threat to that government of his or its institutions.‖
           o   Added 2 restrictions: (1) political opinion need not have been expressed outright; (2) political beliefs
               ascribed to the claimant need not conform to claimant’s true beliefs
    Relevant issue is whether the agent of persecution considered the claimant’s conduct to be political or attributed
     political activities to the alleged victim
    Causal link: from belief to action, from action to persecution

Membership in a particular social group

                                                          Key questions
   Would union activists count as ―members of a particular social group‖ under Ward?
   Could membership in any kind of violent resistance organisation (e.g., the ANC) count as being a member of a particular social
    group?
   Could the victims of human trafficking count as members of a particular social group?

   May frequently overlap with a claim on the other grounds for persecution
   A group may be unified not only through its internal aspects but also because the very existence of the group may
    be viewed negatively by the government
   UNHCR Handbook: “mere membership in a particular social group will not normally be enough to substantiate a
    claim to refugee status”
   Ongoing efforts to isolate the characteristics pertaining to the category of ―particular social group‖
   Ward: not intended to be a safety net; a middle-ground must be found
   Members of groups particularly affected by earthquakes, disasters, etc., were deliberately excluded
   Criteria in Ward
         o    Must distinguish between what one is and what one does
         o    Meaning assigned to ―particular social group‖ should consider general underlying themes of the defence of HR
              and anti-discrimination that form the basis of the int’l refugee protection initiative (ties ―particular social
              group‖ to an HR-based approach)

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Immigration and Refugee Law (Fox-Decent)                                                                   Dorian Needham (Fall 2007)
   Ward: groups qualify if they are
       o    (a) defined by innate or unalterable characteristics
                   This allows the court to capture gender, disability
                   Canada has been a world leader in acknowledging that gender should fall within this category
                   Placing sexual orientation in prong (a) is problematic, as it essentialises sexual identity and doesn‘t allow for
                    change or a shifting sexual identity (see, e.g., recent reluctance to accept claims for persecution based on
                    sexual orientation when the claimant is bisexual – an example of this is in last year‘s exam, posted on WebCT)
       o    (b) associated by reasons fundamental to human dignity
                   HR workers are an example under prong (b) because, for example, they are often targeted in certain countries
       o    (c) associated by former voluntary status that is unalterable
                   Fox-Decent: doesn‘t understand fully the rationale behind prong (c)

Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593: CB 591-594
Issue: does a refugee applicant facing forced sterilisation for opposing China‘s one-child policy qualify as a Convention refugee?
Holding (4-3) no  Canada
   Sterilization is a form of persecution, but C failed to satisfy test of a well-founded fear [did not address membership in a
    particular social group]
Dissent (La Forest)
   Persons facing sterilisation for denying the policy qualify as members of a particular social group
   Ward only enunciated a working rule – not an ―unyielding deterministic approach to resolving whether a refugee claimant could
    be classified within a particular social group‖
   General themes of defending HR and anti-discrimination should remain paramount considerations
   Must consider Ward‘s second category
   Starting point: whether C is voluntarily associated in a manner so fundamental to human dignity that C should not be required
    to forsake it
   Distinction between being and doing is simplified, and comes only after considering whether an issue exists concerning basic HR
    – should not replace Ward categories
   Refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar
    to himself [had in mind Chinese students, who did not voluntarily associate initially, but became targets of persecution post-
    Tiananmen Square – if you are part of a group that then becomes subject to persecution, and hence you become resultantly
    subject to persecution]
   C successfully characterised right asserted as basic right of all couples and individuals to decide freely and responsibly the
    number, spacing and timing of their children – this is fundamental to human dignity
Ratio
   Central question is whether claimant is voluntarily associated with a particular status for reasons so fundamental
    to his human dignity that he should not be forced to forsake that association
   Claimants not required to associate, ally, or consort voluntarily with kindred persons
Notes
   Unclear whether the targeted group here is parents who openly defy the policy, or all parents who want to defy the policy but
    are too frightened (which potentially makes all Chinese parents refugee claimants in Canada)
   Seems as though parents with 2+ children are getting persecuted for what they are doing, not who they are – La Forest seems
    to look at the group in terms of the persecution, rather than vice versa

   Fox-Decent: instead of thinking about it in strictly conceptual terms of complete inalterability or necessary attachment, one way
    to think of membership in a particular social group that would address the same concerns that the court has in Ward is to
    recognise people as members in a particular social group if it is unreasonable from a moral, HR perspective to demand that they
    dissociate themselves from that group
         o   This addresses the issue of multiple sexual orientations
         o   Once the sexual orientation cases get to court, prong (a) will likely be modified or reconsidered, and some element
             along the lines of the above proposal will be included or substituted
   If we are sympathetic towards the goals of an organisation, it is perhaps more likely that we will consider their goals as related
    to human dignity under prong (b)
         o   Fox-Decent: we might have considered the Taliban under prong (b) in the 1980s when we were supporting them, but
             likely wouldn‘t now
         o   If we created the situation, do we have a responsibility to address it? (see Walzer readings)

Gender

                                                            Key questions
   What is the discrimination/persecution distinction raised by the dissent in Islam, and could it lead to a scaling back of protection
    in Canada?

   UNHCR 2002 Guidelines
       o   Gender not specifically referenced in refugee definition, but widely accepted that it can influence or dictate type of
           persecution or harm suffered
       o   Refugee definition, properly interpreted, covers gender-related claims  no need to add additional ground to
           Convention

Islam v. Secretary of State for the Home Department; R. v. Immigration Appeal Tribunal and Another Ex Parte Shah,
[1999] 2 All E.R. 545 (HL): CB 595-600

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Immigration and Refugee Law (Fox-Decent)                                                                 Dorian Needham (Fall 2007)
Facts
   I and S were Pakistani women claiming refugee status in UK on basis of well-founded fear of persecution if they returned
   Claims based on ground of membership in a particular social group: women in Pakistan who were maltreated by their spouses,
    subject to criminal charge based on false allegations, and unable to obtain the protection of their home state
Issue: are I and S members of a particular social group within Convention art. 1A(2)?
Holding (Steyn): yes
   Generalisations about position of women in particular countries are out of place in refugee status determination; everything
    depends on evidence and findings of fact in the particular case
   Distinctive feature here: Pakistani women are unprotected by the state
   I and S have well-founded fear of persecution in Pakistan; outside Pakistan; unable to avail selves of Pakistan‘s protection;
    Pakistani authorities are unwilling to afford protection for women in same circumstances as appellants are – question is
    whether I and S are persecuted for reasons of membership of a particular social group
   Only persecution relevant is persecution for reasons of membership of a group which means that the group must exist
    independently of, and not be defined by, the persecution; relying on persecution to prove existence of the group would be
    circular reasoning
   Cohesiveness may prove existence of a particular social group, but meaning of ―particular social group‖ should not be so limited
   I‘s and S‘s group membership depends on coincidence of (1) gender, (2) suspicion of adultery, and (3) unprotected position –
    none of these involve an assertion of prosecution
   I and S are thus members of a particular social group
Holding (Hoffman): yes
   Concept of discrimination in matters affecting fundamental rights/freedoms is central to understanding the Convention
   Concerned not with all cases of persecution, but with persecution based on discrimination
   Discrimination is making distinctions which principles of fundamental HR regard as inconsistent with the right of every human
    being to equal treatment and respect
   Convention‘s inclusion of ―particular social group‖ recognised that there might be different criteria for discrimination, in pari
    materiae with discrimination on the other grounds that could be equally offensive to HR
   Framers intended to include in the definition any groups coming within anti-discriminatory objectives of
    Convention
   In re Acosta (1985, US Board of Immigration Appeals): social group is distinguishable by an immutable characteristic
   ―Particular social group‖ does not imply cohesiveness, co-operation of interdependence; co-operation as contingent rather than
    essential characteristic (cohesiveness as a criterion was rejected in Ward)
Holding (Hope of Craighead): yes
Ratio
   Only relevant persecution is persecution for reasons of membership in a group, which means that the group must
    exist independently of, and not be defined by, the persecution; relying on persecution to prove existence of the
    group would be circular reasoning
   Cohesiveness may prove existence of a particular social group, but meaning of “particular social group” should not
    be so limited
Dissent (Millett)
   No cognisable social group exists independently of the social conditions on which persecution is founded
   Social group that I and S identify is defined by discrimination that founds persecution – an artificial construct
    called into being to meet the exigencies of the case
   Persecution is not just an aggravated form if discrimination; even if (married) women constitute a social group it is
    inaccurate to say that I and S are persecuted because they are members – instead they are persecuted because they are
    thought to have transgressed social norms, and no evidence that men who do so are treated more favourably
   Cannot accept that, generally, those who are persecuted for refusal to confirm to discriminatory laws to which they are subject
    as members of a particular social group qualify for refugee status – they are discriminated against because they are
    members of a given social group, but persecuted because they refuse to conform
   This does not change where persecution is sanctioned or tolerated by the state – though this may make it easier to characterise
    as being based on political opinion
   Here, norms are not a pretext for persecution, nor have they been recently imposed – deeply embedded in the society in which I
    and S were brought up and live
Notes
   Potentially arguable that I and S were persecuted for political opinion inferred from their actions, but this would seem to fly in
    the face of their acts
   It‘s not just the persecution that‘s at stake, but the threat of persecution; the norms here are discriminatory and made worse by
    the threats that back them up (which, although illegitimate, are very real)

Sexual orientation

Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S, [2003] H.C.A. 71 (Aust. HC): CB
600-608
Facts
   1994-96: S&S (homosexuals) lived together in Bangladesh; conducted selves discreetly
   1998: came to Australia and applied for protection visas on grounds that they had a well-founded fear of persecution in
    Bangladesh by reason of their homosexuality
   Tribunal found that homosexual men in Bangladesh were a particular social group – but that if discreet, they were not
    persecuted, and S&S had been discreet in the past and could be so again; shunning and gossip/taunts did not constitute
    persecution


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Immigration and Refugee Law (Fox-Decent)                                                                Dorian Needham (Fall 2007)
Issues: (1) Did Tribunal err in law by dividing homosexual men into two social groups – discreet and non-discreet? (2) By failing to
consider whether need to act discreetly to avoid the threat of serious harm constituted persecution? (3) By failing to consider
whether S&S would suffer serious harm if they were outed in Bangladesh?
Holding (McHugh and Kirby): (1) Yes. (2) Yes. (3) Yes.  Appellant S395/2002; Appellant S
   Defining particular social group and type of harm feared is fundamental, considering: characteristics/attributes of social
    group; nature/severity/likely repetitiveness of harm feared; extent to which individual will encounter harm feared; existence of
    causal relationship between harm feared and 1+ characteristics (real or imputed) of social group; extent to which individual can
    be expected to tolerate the harm
   Minister claims that S&S could live discreetly in the future as they had done in the past – but this was not a voluntary choice
    uninfluenced by the fear of harm if they did not live discreetly
   Persecution covers many forms of harm; whatever form the harm takes, it will constitute persecution only if, by reason of
    intensity or duration, persecuted person cannot reasonably be expected to tolerate it
   Would undermine Convention if signatories required people to modify their beliefs or opinions or to hide their race, nationality,
    or group membership before countries would give them protection
   It does not matter if risk arises from claimant‘s own conduct, however unreasonable
   Where claimant has modified conduct, natural tendency for tribunal is to assume non-persecution in the future – but this does
    not acknowledge conduct of the persecutor or relevance of harm that will be inflicted
   It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct
   On prosecution for homosexual conduct: (1) Is there a real chance that claimant will be prosecuted if returned to the country of
    nationality? (2) Are prosecution and potential penalty appropriate and adapted to achieving a legitimate object of the country of
    nationality? If answers are (1) Yes and (2) No, then claim must be upheld even if claimant has conducted self unreasonably
   Int‘l HR standards and laws/culture of country are relevant matters
   For some reason, lower courts have been unwilling to demand that claimants change political opinion, but are willing to demand
    discretion from homosexuals
   WABR case: reasonableness of claimant’s conduct was irrelevant to answering either of the questions above
   S&S were discreet about their relationship only because they feared discrimination; Tribunal should have considered what would
    have happened if they had lived openly
   By deciding that there is no reason to suppose that S&S would not continue to act discreetly in the future, Tribunal effectively
    broke ―homosexual males in Bangladesh‖ into ―discreet‖ and ―non-discreet‖ subgroups, which is an error
   Perils faced by S&S were not necessarily confined to their own conduct, discreet or otherwise
   If Tribunal had placed S&S in non-discreet group, likely would have found persecution – but by placing them in discreet group,
    assumed they would not suffer
   Even if Tribunal had put S&S in non-discreet group, does not necessarily follow that they would suffer persecution; also does not
    follow that discreet males would not suffer persecution
   Question is always whether the individual applicant has a well-founded fear
Ratio
   Persecution does not cease to be persecution because those persecuted can eliminate the harm by taking avoiding
    action
   Asylum seekers should not be required or expected to take reasonable steps to avoid persecutory harm
   Neither persecution of members of a particular social group nor past persecution of the individual is decisive:
    history is a guide, not a determinant
   Whether or not a member of a social group has a well-founded fear of persecution cannot be determined by
    assigning him to a sub-group of discreet or non-discreet members
   Applicants claiming refugee status are asserting an individual right and are entitled to have their claims considered
    as individuals, not as undifferentiated members of a group
   On prosecution: (1) Is there a real chance that claimant will be prosecuted if returned to the country of
    nationality? (2) Are prosecution and potential penalty appropriate and adapted to achieving a legitimate object of
    the country of nationality? If answers are (1) Yes and (2) No, then claim must be upheld even if claimant has
    conducted self unreasonably
Notes: we know from criminal law that threats themselves can/should entail liability


                                              7. National State’s Protection
                                                                                                                        CB 612-616

                                                           Key questions
   Is the IFA doctrine valid, given that it appears nowhere in the Convention?

   Ward scotched any significant distinction between “unable” and “unwilling”
   Availability of state protection for claimant is an important aspect of the analysis
   Zhuravlev (2002, FC-TD): question of state protection must be considered twice: (1) in relation to question of well-
    founded fear of persecution; (2) in relation to claimant’s unwillingness/inability to avail himself of state protection
    (unlikely that Question 2 will raise serious inquiry after Question 1 is answered)
   Institutions where there is state complicity in the persecution or where there is evidence of state’s inability to
    provide protection, absence of state protection is easily established
   Protection must be from official state agents
   Ward: in case of multiple nationalities, claimant is expected to avail himself of protection of all countries of nationality
   Ward: the five ―elements‖ of the Convention definition are not conceptually free from one another; one may be necessary for
    determination of another

Internal flight alternative (IFA)
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Immigration and Refugee Law (Fox-Decent)                                                                        Dorian Needham (Fall 2007)
   If it can be shown that person seeking asylum could reasonably available himself of protection within an area of the country of
    persecution, and IFA exists
   Recent focus by Western states on IFA is a direct response to the chance in make-up and numbers of refugees
   IFA is not a legal doctrine, but in many places (incl. Canada) if is frequently and increasingly invoked to deny
    refugee status
   Thirunavukkarasu (1993)
          o   IFA is neither a legal defence nor a legal doctrine
          o   If claimants can seek refuge in own country, no basis for finding that they are unable or unwilling to avail themselves of
              the protection of that country
          o   Burden of proof on the claimant, but minister/board obliged to warn claimant that IFA issue will be raised
   2-pronged test from Rasaratnam (1992)
          o   (1) If possibility of IFA is raised, claimant must demonstrate that there is a serious possibility of
              persecution in the area alleged to constitute an IFA
          o   (2) If reasonable for claimant to do so, claimant must seek and resort to an IFA (has led to inconsistent
              results)
   UNHCR IFA Guidelines (2003)
          o   Convention does not require or even suggest that fear of being persecuted always extends to whole
              territory of country of origin
          o   Int‘l law does not consider asylum to be last resort
          o   IFA cannot be used to deny access to refugee status determination procedures
          o   Must look at circumstances of individual claimant and conditions of country
          o   Issue of relation should only be considered after there has been a thorough assessment of a claim and it is established
              that here exists a well-founded fear of persecution in some part of the claimant‘s country
          o   In determining whether there is an IFA:
                       Relevance analysis
                                Is area of relocation practically, safely, and legally accessible to individual? (if any criterion is ―no‖, no
                                 IFA exists)
                                Is agent of persecution the state? (if yes, presumption in principle that an IFA is not available)
                                Is agent of persecution a non-state agent? (if risk that agent will persecute claimant in proposed area,
                                 IFA not available)
                                Would claimant be exposed to a risk of being persecuted or other serious harm upon relocation? (if
                                 yes, no IFA)
                       Reasonableness analysis: can claimant, in context of country concerned, lead a relatively normal life
                        without facing undue hardship? (if no, no IFA)
          o   Federal Court has not considered UNHCR’s proposed approach
   Januzi and Hamid (2006, HL)
          o   Need a relativistic inquiry into whether IFA is a ―viable or realistic alternative to the place where persecution is feared‖
          o   Cannot claim refugee status just to avoid deprivation to which entire home country is subject

                                                        8. Exclusion Clauses
                                                                                                                     CB 617-627, 641-645

                                                              Key questions
   If HRs are inalienable, are exclusion clauses consistent with respect for HRs?
   What should the response of a court be regarding the application of exclusion clauses if a soldier, on pain of execution,
    witnesses but does not engage in multiple episodes or torture, and then deserts (cf. Ramirez)?
   The ICC includes drug trafficking within its jurisdiction, would Pushpanathan now be decided differently in light of this?

   Convention definition incorporated in IRPA contains provisions that specifically exclude persons who would otherwise qualify as
    refugees
   UNHCR Guidelines: exclusion clauses to be applied ―scrupulously‖ (Canada has followed); should use proportionality test
    (Canada has not followed)

Article 1E

Convention art. 1E. This Convention shall not apply to a person who is recognised 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.

   Threshold for exclusion under this article varies by country
   Grahl-Madsen: to be excludable, person must be granted status in no way inferior to refugee status
   FCA: at a minimum, claimant must be able to return to and remain in putative article 1E country before provision can be
    invoked; ―interpretation of this provision is still evolving‖
        o    Kroon (2004): FC-TD adopted approach that compared rights to which refuge claimant would be entitled with those of
             nationals from article 1E country
        o    Shamlou (1995): if claimant has temporary status that must be renewed and could be cancelled, of if does not have
             right to return to country of residence  no exclusion
        o    Not an unqualified right, but something similar to citizenship in its ability to allow entry and departure, and in non-
             requirement of renewability
   This clause is applied very rarely now
                                                              Page 59 of 74
Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
         o   If you do have something like citizenship or PR status in Canada, you will not usually apply as a refugee to remain in
             Canada
         o   Usually, if making an asylum claim, you make the claim as a Convention refugee and then apply for PR status later – so
             by the time you‘re a PR you already have (more than) the status that a refugee status was intended to secure

Article 1F

Convention art. 1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons
for considering that:
       (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international
instruments drawn up to make provision in respect of such crimes.
       (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.

   In general
         o    Renewed interest in art. 1F as a potential bar to obtaining refugee status
         o    Logic: certain acts are so rare as to render perpetrator undeserving of protection as a refugee; asylum not to be abused
              to avoid legal accountability for acts
         o    UNHCR: for exclusion to be justified, individual responsibility must be established in relation to a crime covered by art.
              1F
         o    Sivakumar (1994, FC-TD): an individual can be held responsible for acts committed by others on the basis of close
              association with them
         o    UNHCR: important to apply exclusion clauses scrupulously, and only after full assessment of the individual
              circumstances of each case
   Article 1F(a)
         o    Difficult to apply precisely; characterisation of groups in which one is involved has crucial role in determining
              applicability of art. 1F(a) (one person‘s revolutionary is another‘s freedom fighter)

Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (CA): CB 620-627
Facts
   1988: M forcibly conscripted into Salvadoran army
   M asked to stand watch over a prisoner who was tortured; he witnessed but rendered no assistance, believing that he would
    have been killed had he done so
   Later participated in five armed confrontations with guerrilla forces, having during training pledged willingness to kill all
    guerrillas and civilians believed to be guerrilla supporters; he participated in the killing of civilians
   M deserted the army and fled El Salvador
Issues: (1) What is the proper standard of proof? (2) Is M guilty (a) by association or (b) as an ―accomplice‖ to torture?
Holding (Robertson, 3-0): (1) Credible, objective basis. (2a) No. (2b) No.  Moreno
   M claims that exclusion clause should be narrowly construed in light of possible persecution, and this is echoed in UNHCR
    Handbook – but must address Court‘s jurisprudence and Convention signatories‘ intent
1. Standard of proof
   Applicability of exclusion clause does not depend on whether claimant has been charged or convicted of acts set out in
    Convention – instead, Minister must have ―serious reasons for considering‖ (i.e., a credible, objective basis)
   This standard is lower than criminal (―beyond a reasonable doubt‖) and civil (―balance of probabilities‖) standards
   Parliament intentionally adopted this standard
   Convention signatories wanted wide latitude
2. Crime against humanity
a. Guilt by association
   Mere membership in an organisation involved in int‘l offences is insufficient basis on which to invoke exclusion clause
   Exception: a group whose membership is premised on achieving political/social ends by any means necessary
   Membership in a military organisation involved in armed conflict with guerrilla forces is within ambit of general rule, not
    exception
b. Guilt as an accomplice
i.  Criminal law
   Dunlop and Sylvester (1979, SCC): mere presence at the scene of a crime is insufficient to ground culpability; more is needed to
    qualify as aiding/abetting
   Act of keeping watch with a view to preventing escape may attract criminal liability – but M was never in possession of a key,
    and (more importantly) benevolent intervention at own risk is not required by int‘l law
   M‘s acts/omissions are insufficient to attract criminal liability as a matter of law; this view is strengthened by striking down of
    constructive murder provisions in Vaillancourt
ii. Int‘l law
   Principles of refugee law overlap criminal law
   Ramirez: acts/omissions amounting to passive acquiescence are insufficient basis for invoking exclusion clause; personal
    involvement in persecutorial acts must be established
   Must determine whether M‘s conduct was ―personal and knowing participation in persecutorial acts‖ and whether there was
    shared common purpose between principal and accomplice
   Forcible conscription + one occasion of witnessing torture ≠ crime against humanity
   M dissociated himself form actual perpetrators by deserting the army
   M‘s presence was passive acquiescence, so no legal basis on which to rest application of exclusion clause

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Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
   Facts in Ramirez were distinguishable: here, M was in military briefly, at low rank, with a passive role
3.  Refugee claim
   Board should have made a determination with regard to M‘s refugee claim notwithstanding its decision to apply the exclusion
    clause, for three reasons: difficult to separate grounds for claim from those for exclusion; can save time and expense by not
    needing to refer matter back to the Board after mistake on exclusion clause; spousal and dependent refugee claims require full
    treatment
Ratio
   Burden of proof is on the government, and is “serious reasons for considering” (lower than “balance of
    probabilities”): a credible, objective basis
   Mere membership in an organisation involved in int’l offences is insufficient basis on which to invoke exclusion
    clause (exception: a group whose membership is premised on achieving political/social ends by any means
    necessary)
   To found guilt as an accomplice, must find “personal and knowing participation in persecutorial acts” and shared
    common purpose between principal and accomplice
   Even if exclusion clause is applied, Board should still assess refugee claim
Notes
   Fox-Decent: some branches of the Salvadoran army are so close to death squads that this decision‘s characterisation of M‘s
    involvement and knowledge are questionable
   But the Court decides to give M the benefit of the doubt – there may be sympathy for the fact that M was effectively conscripted
    as a child soldier
   Perhaps alarming that the standard of proof adopted is lower than for any criminal or civil charge
   Difficult to know what will (fail to) satisfy the burden of proof here – the Crown doesn‘t even have to satisfy a ―more likely than
    not‖ standard
   Fox-Decent: perhaps a notion of duress would be applicable here that would be comparable to the defence of self-defence in the
    context of battered woman syndrome
   M was able to escape because he was sent money by relatives in the USA – what would have happened had he stuck around
    while saving money to leave? Would he have been denied the ―benefits‖ (in CIC‘s eyes) of having fled quickly?

    Article 1F(b)
          o    Again, difficult to apply precisely
          o    Designed to target terrorists, but not political revolutionaries, etc.
    Article 1F(c)

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982: CB 641-645
Facts
   P claimed refugee status, and was granted PR status in Canada under administrative program
   Later arrested for conspiracy to traffic in narcotic  8 years‘ prison sentence
   3 years later, renewed claim for refugee status  refused by virtue of art. 1F(c)
Issue: should exclusion clause apply to P?
Holding (Bastarache, 4-2): no  Pushpanathan
   Logic of art. 1F, esp. 1F(c) is related to purpose of Convention as a whole: those who are responsible for the
    persecution that creates refugees (serious, sustained or systematic violations of HR that amount to persecution in
    a non-war setting) should not enjoy the benefits of a Convention designed to protect those refugees
   Precise/exhaustive list of acts contrary to purposes/principles of UN is against the purpose: where there is consensus in int‘l law
    that particular acts constitute sufficiently serious and sustained violations of fundamental HR as to amount to persecution, or are
    explicitly recognised as contrary to UN purposes/principles, art. 1F(c) applies
1. Categories of acts under this principle:
a. Widely accepted int‘l agreement of UN resolution explicitly declaring commission of certain acts as contrary to UN
    purposes/principles  strong presumption of applicability of art. 1F(c)
   ICJ determinations may be compelling
   Inference: violators of UN principles/purposes must be in positions of power – though not all states agree (may be more difficult
    for a non-state actor to perpetrate HR violations on a scale amounting to persecution without state implicitly adopting those
    acts, but should not exclude possibility a priori)
   Drug trafficking: no indication that it is to be considered contrary to UN purposes/principles (no explicit declaration)
b. Those acts that a court can by itself characterise as serious, sustained and systemic violations of fundamental HR constituting
    persecution
   Factual and legal component
   Assess status of rule that has been violated; where rule is very near core of most valued HR principles and immediately subject
    to int‘l condemnation/punishment, even isolated violation could lead to art. 1F(c) exclusion
   Might arise from particularly egregious factual situation, including extent of applicant‘s complicity
   Here, no indication that drug trafficking comes close to core, or even forms part of corpus, of fundamental HR
2. Possible overlap of arts. 1F(c) and 1F(b)
   Art. 1F(b) generally meant to prevent ordinary criminal as extraditable by treaty from seeking refugee status, but this exclusion
    is limited to serious crimes committed before entry in the state of asylum
   Art. 1F(b) has precisely drawn scope, limited to ―serious‖ ―non-political crimes‖  these types of crimes inferred not to be part
    of art. 1F(c)
   This approach reflects signatories‘ intention to create humanitarian balance between individual in fear of persecution and
    legitimate concern of states to sanction criminal activity



                                                              Page 61 of 74
Immigration and Refugee Law (Fox-Decent)                                                                     Dorian Needham (Fall 2007)
    No rational connection between Convention objectives and Canada‘s objectives in limiting art. 1F(c); until int‘l community
     clarifies that drug trafficking is a serious violation of fundamental HR amounting to persecution, no rationale for counting it
     among grounds of exclusion
Ratio
    Absent a clear indication that int’l community recognises an offence as a sufficiently serious and sustained
     violation of fundamental HR as to amount to persecution, individuals should not be deprived of Convention
     protection for having committed those acts
    Indications can come through (1) specific designation of an act as contrary to purposes/principles of UN or (2)
     through court’s own judgments based on int’l instruments that otherwise indicate that the act is a serious violation
     of fundamental HR
    “Serious … non-political crimes” are included in art. 1F(b), and therefore excluded from art. 1F(c)
Notes: decision rendered 1998, just before ratification of the Rome Treaty establishing the ICC; Bastarache speculates that if drug
trafficking were recognised as an int‘l crime, then perhaps it would be viewed as an act contrary to the principles/purposes of the UN
– and this happened in the ICC‘s statute


                                                      9. Cessation Grounds
                                                                                                                              CB 646-647

   Refugee status may cease in two ways
        o   Actions of the refugee
        o   Fundamental changes in the objective circumstances within country of origin upon which refugee status was based
   These possibilities flow from conception of refugee law as a temporary protection designed only to last as long as needed

IRPA s. 108 (1). Rejection
     (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection,
in any of the following circumstances:
       (a) the person has voluntarily reavailed themself of the protection of their country of nationality;
       (b) the person has voluntarily reacquired their nationality;
       (c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;
       (d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect
of which the person claimed refugee protection in Canada; or
       (e) the reasons for which the person sought refugee protection have ceased to exist. …
IRPA s. 108 (4). Exception
     (4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous
persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or
outside of which they remained, due to such previous persecution, torture, treatment or punishment.

   UNHCR Guidelines elaborate key element relevant to assessing extent and durability of change before cessation can be applied
        o    Developments appearing to evidence significant and profound changes should be given time to consolidate before
             cessation decision is made
        o    If changes are peaceful and take place constitutionally, can decide after relatively short time
        o    If changes are violent, longer time must have elapsed
   Suleiman (2005, FCA): applicability of compelling reasons exception under s. 108(4) does not require that persecution be
    ―appalling‖

                                                  10. Consolidated Grounds
                                                                                                                              CB 647-650

                                                               Key questions
   What is the likely effect in practice of the different risk threshold (―more likely than not‖) under s. 97 vis-à-vis s. 96?

   Claims for protection under IRPA can be considered pursuant to s. 96 (refugee protection) and/or s. 97(1)(a) and/or (b)
    (persons in need or protection) – if based on all 3, labelled ―consolidated grounds‖
   Li (2005, FCA)
          o   Standard of proof for persons in need of protection is same as for refugee protection (balance of probabilities)
          o   Risk of torture, death, or cruel and unusual treatment or punishment (s. 97) must be more likely than not, even
              though risk of persecution (s. 96) need only amount to a reasonable chance or more than a minimal possibility
          o   Effect: different and hither risk threshold for s. 97 claims
   Little case law available interpreting s. 97, and very few successful claims (partly because of stringent requirements)

Refugee Protection Division File TA1-24763 (11 February 2003): CB 648-650
Facts
   1987: Claimant (Colombian businessman) started to be subject to extortion that he ignored
   1989: extortion demands started to become more violent and to affect his family; claimant changed his name and residence
   1990: more demands; claimant changed residence
   1998: more demands and family threatened; claimant sent family out of country and followed in 1999
Issue: does claimant merit protected status on consolidated grounds?
Holding: yes  claimant

                                                            Page 62 of 74
Immigration and Refugee Law (Fox-Decent)                                                                Dorian Needham (Fall 2007)
   On balance of probabilities, claimant is credible
   Extortion in Colombian context has potential for serious harm including possible risk to life
   Kidnappings and extortion threats in Colombia can lead to death or forced disappearance
   As Colombian businessman, claimant belongs to a category marked for extortion
   State cannot protect him; security forces overwhelmed and have insufficient infrastructure
   Identity of extortionists is open to question  not a Convention refugee
   Claimant has demonstrated a risk to life  qualifies for protection under s. 97
Ratio: application of s. 97


                                                    VI. Enforcement
   Immigration enforcement regime frequently presented as important aspect of nat‘l sovereignty – but in era of globalisation
    many states have relinquished some control over transborder trade
   Canadian attempts to establish robust enforcement regime have been supplemented by parallel int‘l and multilateral efforts


                                            A. Smart Border Declaration
   2001: Canada and US sign Smart Border Declaration, including 30-point action plan to increase border security while allowing
    smooth flow of people, goods, and services pursuant to NAFTA
   Also signed Joint Statement of Cooperation on Border Security and Regional Migration Issues, with similar content

                32-Point Smart Border Declaration and Action Plan, DFAIT (12 December 2001): CB 658-660
   1. Jointly develop biometric identifiers in documentation
   2. Develop permanent resident cards including biometric identifiers
   4. Ensure thorough screening of refugee/asylum applicants; share information
   5. Negotiate safe third-country agreement
   6. Coordinate visa policy
   7. Implement Preclearance Agreement for air travel
   8. Share advance passenger information and passenger name records for Canada-US and US-Canada flights
   9. Establish joint passenger analysis units at key int‘l airports
   10. Review customs and immigration presence at ferry terminals
   11. Compatible immigration databases
   12. Increase US/Canadian IO presence at overseas airports; joint training of airline personnel
   13. Technical assistance to source and transit countries
   19. Physical and technological improvements to key border points
   24. Comprehensive and permanent coordination of law enforcement
   25. Disseminate information and intelligence
   26. Enable RCMP to access FBI fingerprint data directly
   27. Address legal and operational challenges to joint removals; coordinate initiatives to encourage uncooperative countries to
    accept their nationals
   28. Bring counter-terrorism legislation into force
   29. Exchange advance information and freeze terrorist assets
   30. Joint training and exercises

         o   Canadian gov‘t has identified Smart Border Declaration as important part of Campaign Against Terrorism, and has
             claimed much progress [see CB 661]
         o   Differing views on motivations
                      Andreas: Canadian officials maintain that these measures do not mean that Canada is adopting US policies or
                       catering to US influence – must enhance security or risk hardening of the border
                      Clarkson: from Canadian gov‘t perspective, Canada set the agenda on border issues; 9/11 finally forced US to
                       take border issues seriously
                      Evidence does not unequivocally support either author
         o   Auditor General criticised some aspects in a 2004 report: gaps in watch lists, mismanagement of information, failures
             by security agencies to communicate with each other
         o   Canadian Border Services Agency established 2003 as part of Public Safety and Emergency Preparedness Canada
         o   ―Direct Back‖
                      Refugee claimants coming to Canada from US can be directed back to US if examination cannot be scheduled
                       immediately
                      Canadian Council for Refugees has challenged it: if US arrests/deports claimant, may never be processed in
                       Canada
                      Safe Third Country Agreement has reduced number of claims


                                         B. Inadmissibility and Removal
Determining inadmissibility
   Determination of inadmissibility may prevent entry of FN outside Canada or lead to removal of person in Canada


                                                           Page 63 of 74
Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
   Normally begins with IO preparing a report, forwarded to minister‘s delegate  referred to IRB for admissibility hearing (here,
    the IRB acts as a truly independent body with its own procedures – but exceptionally, minister‘s delegate can issue a removal
    order directly)
   Person seeking refugee protection also subject to this process, but removal order is conditional: the criteria don‘t automatically
    translate into a removal order unless they are found ineligible (early in the process) or after found to be a Convention refugee
    (though then subject to fewer inadmissibility criteria: HR violations, serious/organised criminality)
   IRPA s. 24(1) allows grant of temporary permit to persons otherwise inadmissible; H&C application under s. 25 also available
   Applies to accompanying family members, but not to sponsored family members

Appeals to IAD
   IRPA s. 63: PRs and those with PR visa have right to appeal removal order to the IAD (unavailable under s. 64 where individual
    is inadmissible on grounds of security, violating HR or int‘l rights, organised criminality, or serious criminality – though H&C
    application to IAD [under Regulations pursuant to s. 43] and to Minister [under s. 25] still available)
   Section 64 also prohibits appeal by a sponsor of family class member in case of misrepresentation unless person in question is
    spouse, CML partner, or child of sponsor (IAD may allow or dismiss appeal or, where H&C grounds warrant it, stay removal
    order: ss. 66-69)
   Chieu (2002, SCC): ―all the circumstances of the case‖ should be considered broadly, including consequences on return

Criteria of inadmissibility
    IRPA ss. 33-43 identify grounds of inadmissibility
    Section 33 provides that grounds apply to act and omissions, including facts for which there are ―reasonable grounds to believe‖
     that they occurred
          o    Mugesera (2005, SCC): “Reasonable grounds to believe” standard requires more than mere suspicion, but
               less than balance of probabilities; reasonable grounds will exist where there is an objective basis for the
               belief that is based on compelling and credible information
          o    Difficult to reconcile SCC’s association of this criterion with crimes against humanity, with IRPA s. 33’s
               statement that it’s the default standard for all grounds of inadmissibility

                                                      1. Health Grounds

                                                             Key questions
   Should everyone with a costly illness or disability be disqualified from immigrating to Canada?
   Should applicant resources be taken into account when IOs make a determination of whether an applicant will impose an
    ―excessive demand‖?
   Should we read s. 38(1) to mandate an inquiry that looks to non-medical as well as medical factors regarding ―excessive
    demand‖?

   IRPA s. 38 identifies three health-related grounds of inadmissibility
        o    Health condition likely to be a danger to public health (level of risk: ―likelihood‖)
        o    Health condition likely to be a danger to public security (level of risk: ―likelihood‖)
        o    Health condition that might reasonably be expected to cause excessive demand on health or social services (level of
             risk: ―reasonable expectations‖)
                      Excessive demand is (see Regulations s. 1) EITHER costs likely to exceed average Canadian per capita health
                       and social service costs over 5 years (or possibly longer) OR demand that would add to existing waiting lists,
                       increasing mortality and morbidity for PRs and citizens
                      Courts have negatively reviewed decisions by visa officers that have couched language only in language of
                       possibility
                      IRPA s. 38(2) exempts specified groups from excessive demand provisions
   Medical examinations generally not required for TR visas, but are for those seeking PR status; under IRPA s. 16 and Regulations
    s. 30, FNs may be required to take an examination where an IO believes they are inadmissible

Hilewitz v. Minister of Citizenship and Immigration, [2005] S.C.J. No. 58 (SCC): CB 676-687
Facts
    H (from RSA) and family never resorted to publicly funded services for their intellectually disabled son
    H applied for PR status as an investor, and had substantial financial resources to qualify
    Medical officer recommended denying admission because of the intellectual disability of a dependent child, and corresponding
     entitlement to social services (―requirements far in excess of those of an average Canadian … will place an excessive demand on
     Canadian social services‖)
    Visa officer found H to be credible, and that he would make a valuable contribution to Canada
    Visa officer sent H a ―fairness letter‖ advising him that questions had been raised regarding his application and giving him an
     opportunity to respond with relevant evidence
    H responded that his son in some respects functioned with greater maturity, had never used publicly funded schooling, that
     family had established a special school for him and others with similar disabilities; also indicated that he would purchase a
     business where his son could work
    Visa officer did not read letter, but forwarded it to medical officer, who repeated initial assessment
    Visa application refused, including insufficient H&C grounds – though recommended that a Minister‘s permit be issued to allow H
     and family to come for 3 years (for some reason, never issued)
Issue: should H‘s resources be disregarded in determining whether his disabled son would create an undue burden on Canada‘s
social services?
Holding (Abella, 7-2): no  Hilewitz
                                                           Page 64 of 74
Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
   Investor class is to a large extent concerned with individual‘s assets  incongruous to interpret legislation such that assets
    qualifying individuals for admission are ignored in determining admissibility of their disabled children
   [Review of legislative history]: legislative intention to shift from an approach based on categorical exclusion to one calling for
    individualised assessments
   Term ―excessive demands‖ is inherently evaluative and comparative: medical officers to assess likely demands (not eligibility),
    considering medical and non-medical factors including publicly funded service availability/scarcity/cost and family‘s willingness
    and ability to pay  individual assessments are needed
   Here, legislation was interpreted such that all intellectually disabled persons were excluded, regardless of family support or
    assistance and of whether they pose any reasonable likelihood of excessively burdening Canada‘s social services
   The efficiency argument for processing claims in this cookie-cutter method does not justify avoiding legislative requirements
   Threshold is reasonable probability, not remote possibility
   [Applies equally to new IRPA, enacted after case went to appeal]
   H‘s willingness to relieve burden on public treasury is a relevant factor in determining whether child can reasonably be expected
    to place excessive demands on Canada‘s social services
   Fear of possible bankruptcy applies to every applicant, so should not be especially considered here
   Visa officer felt that she had no room to manoeuvre because families cannot opt out of eligibility, so law cannot be avoided
   Social services are provincially regulated, and ON (where H intends to settle) legislation manifestly contemplates that families
    that can afford to pay should pay  H would likely cover most of the costs even if son did use public services
   Visa officer erred by confirming medical officers‘ refusal to account for potential impact of family‘s willingness to assist; by not
    reading H‘s response letter and thus not basing decision on all relevant available information
   Correctness is the applicable standard  decision set aside
Ratio
   “Excessive demands” to be assessed on a case-by-case basis, incorporating an assessment of family’s willingness
    and ability to defray the costs of these demands
   Threshold is reasonable probability, not remote possibility; standard of review is correctness
Dissent (Deschamps)
   Wealth is not a relevant consideration
   Parliament has used criteria for the decision on medical inadmissibility; these criteria are different from those used for selecting
    business or economic applicants  two different enquiries to be made
   Merging both enquiries is contrary to scheme created by legislature
   Applicant can be admitted based on wealth, but up to Minister to issue a permit despite the medial inadmissibility: Minister in a
    better position to assess special circumstances, and better to have exceptions decided by a single authority
Notes
   Using Trebilcock‘s proposal for posting a bond to cover social services addresses the cost – but not the ―you‘re taking a
    Canadian‘s hospital bed‖ argument that also applied in Deol (CB 672-676)
   There might be some cases that a posted bond plan could not address (e.g., heart transplant), involving long processes, possible
    complications, life-or-death scenarios, and/or non-fungible supplies – but the idea could work for other migrants
   Arguable that immigrants are not on average more sick than Canadians – so are they really more of a per capita burden?
   Discrimination based on disability is now considered a very serious form of discrimination (Canada may be in violation of int‘l
    treaty obligations with respect to the Convention to Eliminate All Forms of Discrimination) – why did H‘s lawyer did not raise this
    point along Charter s. 15 grounds?
   The SCC said in Charkaoui and other cases that Charter s. 6 clearly distinguishes between citizens, PRs, and FNs, so gov‘t can
    treat these 3 classes of people differentially (exception is refugees, to whom s. 7 applies – although deportation itself does not
    even engage liberty or security of the person interests, which is tough to believe and makes us question what rights they
    actually can engage)

   Neither IRPA nor Regulations specify nature of a medical examination; government‘s directions to designated medical
    practitioners are contentious
   Canadian HIV/AIDS Legal Network critiques criteria of excessive demands and the mandatory testing requirement: unfairly
    discriminates; stigmatises non-citizens; slippery slope to testing other groups; slippery slope to other tests on immigrants;
    economic costs may outweigh gains; lower standards in other countries (re: consent and post-test counselling)

                                                          2. Criminality
                                                                                                                          CB 687-691

   IRPA qualifies criminality, serious criminality, and organised criminality as grounds of inadmissibility (ss. 36-37)
   PRs and FNs inadmissible on grounds of serious criminality if were convicted of an offence punishable by a maximum term of at
    least 10 years, or outside Canada if equivalent, or even outside Canada (committed or convicted) if punishable by same term
   FNs inadmissible on grounds of serious criminality if were convicted of indictable offence or two offences, or even outside
    Canada (committed or convicted), or of any offence prescribed by regulations
   Determination of whether an offence committed outside Canada is equivalent to a Canadian offence has been particularly
    problematic, as has the determination of the effect of a foreign problem

Li v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 235 (FCA): CB 688-691
Facts
   1990: L (former chair of Hong Kong Stock Exchange) convicted in Hong Kong of two offences
   1991: L seeks entry into Canada, but denied on grounds of inadmissibility for serious criminality
   Adjudicator concluded that L‘s conviction was for an offence that if committed in Canada would constitute an offence under the
    Criminal Code

                                                           Page 65 of 74
Immigration and Refugee Law (Fox-Decent)                                                                     Dorian Needham (Fall 2007)
Issues: (1) Does a comparison of the ―essential elements‖ of an offence require a comparison of the statutory defences available in
the respective offences as well? (2) A comparison of the burdens of proof available under the respective laws?
Holding (Strayer): (1) Yes. (2) No.
    Canadian and foreign offences must be equivalent, ascertained through comparison of their ―essential elements‖
1. Defences
    Brannson: can present adjudicator with evidence of what the person has actually done, not just the particulars as charged;
     evidence can be documentary or viva voce; goal is to determine whether the same acts committed in Canada would render the
     person guilty of an offence
    Fundamental test of equivalence: would the acts committed abroad and punished there have been punishable here?
    Equivalency of offences requires similarity of definitions of offences; definition is similar if it involves similar criteria for
     establishing that an offence has occurred, whether those criteria are manifested in ―elements‖ or ―defences‖
    Definition of an offence involves elements and defences particular to that offence
    What is being compared is possible offences, not possible convictions
2. Burden of proof
    Hong Kong law puts burden on the accused in this case  L claims that the offence is not the same in Hong Kong as in Canada
    Question is whether Canadian equivalent exists for the offence, not whether the person would have been convicted in Canada
     for the offence
    Adjudicator should not compare the procedural/evidentiary rules of the two jurisdictions, even if Canadian rules are mandated
     by Charter
Ratio
    Definition of an offence is similar if it involves similar criteria for establishing that an offence has occurred,
     whether those criteria are manifested in “elements” or “defences”
    Fundamental test of equivalence: would the acts committed abroad and punished there have been punishable
     here?
    Adjudicator should not compare the procedural/evidentiary rules of the two jurisdictions, even if Canadian rules
     are mandated
Notes: cf. ―punishable‖ and ―convicted‖: test turns on whether the act could lead to punishment in Canada – so whether in light of
the facts the person actually would (not) have been punished is irrelevant


                                                    3. Organised Criminality

Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (FCA): CB 700-707
Facts
    C (successful actor in Hong Kong) made films and TV stations, including some for studies believed to be controlled by a
     particular triad; later applied for Canadian visa
    Visa officer received affidavit from Hong Kong intelligence about the studios and C‘s involvement therein
    On interview, visa officer asked C about his connection with these studios, and was not satisfied that answers were truthful;
     there is conflicting evidence as to whether C brought certain documents and/or proof to this interview
    Visa officer refused C‘s request because there were reasonable grounds to believe that he was a member of a criminal
     organisation
Issues: (1) Was it a breach of the duty of fairness for the visa officer to refuse C‘s visa application without providing him with at least
a summary of the information in the affidavit? (2) Did the visa officer err when he decided that there were ―reasonable grounds‖ for
believing that C was a ―member‖ of a criminal organisation?
Holding (Evans): (1) No. (2) No.  Canada
    Must strike balance between interests of the individual (to have application for visa determined in accordance with the law,
     including norms of procedural fairness) and the duty of the state to protect national security (i.e., need for state authorities to
     obtain and rely on information supplied in confidence by law enforcement authorities)
1. Duty of fairness
    Duty of procedural fairness varies according to context; must consider factors (enumerated in Baker)
    Importance of the decision to the individual: non-citizens have no CML or statutory right to enter Canada; C had no connection
     with Canada; visa refusal is not final (though subsequent applications receive more scrutiny) ( lower protection) – but C‘s
     reputation might suffer and he might lose money ( little higher protection)
    Nature of the decision and the decision-making process: decision based on reasonably objective criteria, on facts concerning
     only C; decision applied only to C ( higher protection) – but procedure is not similar to adjudication ( little lower protection)
    Public interest: decision based partly on intelligence information gathered by foreign state, disclosure of which would cause
     these and other sources of similar information to dry up ( lower protection)
    Must balance these factors in C‘s factual context: C was well informed; could have assuaged visa officer‘s concern  C not
     denied a fair opportunity to answer visa officer‘s concerns
    No breach of duty of fairness: adverse effect on C was slight, but potential damage to Canada‘s interests was large
2. Reasonable grounds
    Reasonable grounds to believe that C was a member of the triad
    Trial judge correctly equated being a ―member‖ with ―belonging to‖
    IRPA is broad enough to enable Canada to protect nat‘l security be excluding not only those who commit crimes here but those
     whose presence in Canada may be used to strengthen a criminal organisation or advance its purposes
    Not always possible to draw bright lines between legitimate business activities of a criminal organisation and its criminal
     activities; if you participate in a legitimate business, knowing it is controlled by a criminal organisation, may be reasonable
     grounds to believe you are a member of the criminal organisation
    ―Reasonable grounds‖ are a standard of proof less than balance of probabilities but still bona fide belief in a serious possibility
     based on credible evidence
    Visa officer was justified in finding the affidavit persuasive without asking C about it or cross-examining
                                                            Page 66 of 74
Immigration and Refugee Law (Fox-Decent)                                                                  Dorian Needham (Fall 2007)
Ratio
   Duty of fairness varies according to context, to be determined based on importance of decision to the individual,
    nature of the decision and decision-making process, and public interest – all balanced in the factual context
   Being a “member” is equivalent to “belonging to” a criminal organisation
   “Reasonable grounds” are a standard of proof less than balance of probabilities but still bona fide belief in a
    serious possibility based on credible evidence
Notes: IRPA s. 87 permits minister in the course of judicial review to make an application to the judge for non-disclosure of evidence


                                                4. Crimes Against Humanity

   IRPA s. 35(1)(b) and IRPA Regulations 15(b-c) provide that where there are reasonable grounds to believe that someone has
    committed a crime against humanity as defined by the Criminal Code, that person is inadmissible

Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] S.C.J. No. 39 (SCC): CB 717-728
Facts
   1992: M makes an anti-Tutsi speech in Rwanda; Rwanda issues arrest warrant
   M flees and applies for PR status in Canada
   MCI becomes aware of M‘s speech and seeks deportation for incitement to murder, hatred, and genocide, and crime against
    humanity
   IAD upholds decision; FCA overturns; MCI appeals to SCC
Issue: was a crime against humanity committed?
Holding (all justices): yes  Canada
   ―Reasonable grounds to believe‖ applies only to questions of fact (here, whether M gave speech, message it conveyed, context
    of delivery) – whether these facts constitute a crime against humanity is a questions of law
   Standard of proof is ―compelling and credible information that provides an objective basis for … findings of fact‖
   Elements of a crime against humanity: actus reus (enumerated proscribed act; part of a widespread or systematic attack; attack
    directed against any civilian population or identifiable group of persons) and mens rea (person committing the act knew of the
    attack and knew or took the risk that the act comprised a part of that attack)
   Since Finta (1994), much international jurisprudence, esp. from ICTY and ICTR, has developed and (though non-binding) should
    be considered  must reconsider Finta
1. Actus reus
a. Proscribed act
   Various acts may become crimes against humanity as long as the other elements of the offence are met
   Question is whether M‘s speech satisfies the initial criminal act requirement for a crime against humanity
   Speech counselled murders which were not committed, and incited hatred and genocide
i.  Counselling an enumerated act that is not committed and murder as a crime against humanity
   Criminal Code provides that ―counselling‖ is sufficient to meet the requirement for a crime against humanity
   M satisfied both physical and mental elements of the underlying offence of counselling a murder that is not committed
   ICTR fount that incitation involves (1) direct and public incitement to commit a proscribed act (2) only where it has led to actual
    commission of the instigated offence, with an adequate causal link
   So: M‘s counselling of murder is insufficient to satisfy the initial criminal act requirement for a crime against humanity
ii. Speech that incites hatred and persecution as a crime against humanity
   ICTR and ICTY have classed a speech inciting hatred as relating to enumerated act of ―persecution‖
   Criminal Code states that persecution may constitute a crime against humanity – but is not a stand-alone crime
   Danger that persecution, as so defined, may apply to acts much less serious than other forms of crimes against humanity 
    must reach same level of gravity as other enumerated underlying acts
   Accused must have intended to commit the persecutory acts and must have committed them with discriminatory intent;
    requirement of discriminatory intent is unique to persecution and need not be shown for other crimes against humanity
   Crimes against humanity must be committed as part of a widespread and systematic attack against any civilian population
   No reason to depart from ICTY and ICTR decisions on the question of discriminatory intent
   The criminal act of persecution is the gross or blatant denial of a fundamental right on discriminatory grounds; the guilty mental
    state is discriminatory intent to deny the right
   M‘s speech was found to have incited hatred of Tutsis and his political opponents
   M‘s speech bore the hallmarks of a gross of blatant act of discrimination equivalent in severity to the underlying acts
    enumerated as crimes against humanity  criminal act requirement for persecution is therefore met
   M also did it with the required discriminatory intent  M satisfies all criteria for persecution
   Must now consider context in which enumerated act takes place (contextual element distinguishes crime against humanity from
    ordinary crime)
b. Part of a widespread or systematic attack
   Nature of the attack to be determined by examining means, methods, resources, and results of the attack upon a civilian
    population
   Only the attack needs to be widespread or systematic, not the act of the accused
   No requirement for a state or other policy behind the attack
   Here, there was a large-scale action directed against a multiplicity of victims
   The attack was systematic, so unnecessary to decide if it was widespread
   M‘s speech took place at the time of a systematic attack (see below) – but was it ―part of‖ this attack?
   Must demonstrate a link between the act and the attack that compels int‘l scrutiny
   Must find that act was part of a pattern of abuse or was liable to have effect of objectively furthering the attack – but this does
    not mean that no personal motive can exist

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   Act must further the attack or clearly fit the pattern of the attack, but it need not comprise an essential or officially sanctioned
    part of it
   M‘s speech was part of a systematic attack directed against a civilian population that was occurring in Rwanda at the time
c. Directed against any civilian population
   ―Population‖ is a relatively largely group of people sharing distinctive features that identify them as targets of the attack
   Tutsis and moderate Hutus were ethnically and politically identifiable, and subject to an ongoing systematic attack
2. Mens rea
   This was a significant contention in Finta  now well settled
   Accused must have knowledge of the attack and must know that his/her acts comprise part of it OR take the risk that he/her
    acts will comprise part of it
   Person need not intend that the act be directed against the targeted population, and motive is irrelevant once knowledge of the
    attack has been established together with knowledge that the act forms a part of the attack or with recklessness in this regard
   Accused need not know the details of the attack
   M possessed the culpable mental state: well educated; aware of ethnic tensions; speech left no doubt of his intent; aware of the
    attack occurring; anyone of his stats (education, position, etc.) would have known
Ratio
1. Actus reus of a crime against humanity
   (1) accused has committed an underlying enumerated act (with physical and mental elements) that contravenes
    int’l law in context that (2) act occurs as part of a widespread or systematic attack (3) directed against any civilian
    population
   For counselling of murder to be considered a crime against humanity under int’l law, murders must actually have
    been committed
   Persecution is a gross or blatant denial of fundamental rights on discriminatory grounds equal in severity to the
    other enumerated crimes against humanity; hate speech, esp. when it advocates egregious acts of violence, may
    constitute persecution
2. Mens rea of a crime against humanity: accused must have knowledge of the attack and must know that his/her
    acts comprise part of it OR take the risk that he/her acts will comprise part of it


                                           5. Other Grounds of Inadmissibility

   Financial reasons (s. 39): unable/unwilling to support him/herself or a dependent without relying on social assistance for
    support
   Misrepresentation (s. 40)
   Non-compliance with the IRPA (s. 41)
   Inadmissible family member (s. 42): FN is inadmissible if accompanying (or non-accompanying, in prescribed circumstances)
    family member is inadmissible


                                             C. Types of Removal Orders
   Identified in Regulations ss. 223-226
   Types
         o    Departure order
                     FN need not obtain authorisation to re-enter Canada
                     Automatically becomes deportation order if does not leave within 30 days
         o    Exclusion order  need written authorisation to return to Canada within one year (2 years in cases of
              misrepresentation)
         o    Deportation order  written authorisation needed at any time
   Removal order against FN is also removal order against family members
   Voluntary compliance  may choose destination
   Non-voluntary compliance  destination may be (1) country from which person came to Canada; (2) country of last permanent
    residence; (3) country of which the person is a citizen; or (4) country of person‘s birth


                                        D. Pre-Removal Risk Assessment
                                                                                                                            CB 739-743

IRPA s. 112(1). Application for protection.
    (1) A person in Canada, other than a person referred to in subsection 115(1) [protected person not subject to refoulement],
may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or
are named in a [security] certificate…
IRPA s. 112(2). Exception.
    (2) Despite subsection (1), a person may not apply for protection if
         (a) they are the subject of an authority to proceed issued under section 15 of the Extradition Act;
         (b) they have made a claim to refugee protection that has been determined under paragraph 101(1)(e) to be ineligible
[entry via a country listed in the Regulations]
         (c) in the case of a person who has not left Canada since the application for protection was rejected, the prescribed period
has not expired; or



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         (d) in the case of a person who has left Canada since the removal order came into force, less than six months have passed
since they left Canada after their claim to refugee protection was determined to be ineligible, abandoned, withdrawn or rejected, or
their application for protection was rejected.

   In application, may introduce only new evidence; Minister may or may not conduct hearing
   Decisions made within DCI since October 2004
   Successful application  recognition as a protected person OR stay of removal order (if person was inadmissible)

Varga v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1570 (QL) (FC-TD): CB 739-743
Facts
    V (husband and wife) and child are Roma from Hungary; now subject to removal order when PR application denied
    Since arriving in Canada, had 2 more children; these 2 children are Canadian citizens and thus not subject to removal
    PRRA Officer found that Hungary offered state protection and that it was not in his mandate to consider Canadian citizens (the
     children)  required V and other child to leave immediately
Issues: (1) Did PRRA Officer err in not considering interests of the Canadian-born children? (2) Did PRRA Officer exceed jurisdiction
or breach natural fairness in requiring immediate departure?
Holding (Hughes): (1) Yes. (2) Yes.  Varga
1. Canadian-born children
    IRPA s. 112 states that only those subject to removal assessment can apply for PRRA
    None of ss. 96, 97, 112, 113 address interests of a child not subject to removal order
    IRPA s. 25(1) requires that the ―best interest of a child directly affected‖ be considered in deciding H&C admission applications
    V has made a separate H&C admission application; not yet processed
    V claims that a contextual approach be taken and that the interests of children who may be separated from parents, or taken to
     another country when parents removed, should be considered
    Sherzady (2005, FC-TD): PRRA matters are restricted to harm to the applicants only
    El Ouardi (2005, FCA): PRRA application not an appropriate forum to consider H&C interests of a child
    Munar (2005, FC-TD): child’s best interests are a continuum; full analysis needed on H&C applications (IO‘s task is to
     determine likely degree of hardship to child and to weigh hardship with other factors incl. public policy); but less thorough
     examination may be sufficient in other cases; in removal assessments, bar is lower, but must still decide whether
     enforcement of removal order is “reasonably practicable” considering child’s short-term interests (this does not
     duplicate role of IO addressing eventual H&C application)
    Application here allowed  re-determination by PRRA Officer
    [Certified question for FCA]
2. Immediate removal
    C claims that requirement for immediate removal usurps Enforcement Officer‘s role – but PRRA Officer just ended stay of
     removal order that had already been made but stayed by PRRA; Officer‘s decision just meant that order was not in full force and
     effect
Ratio
    PRRA Officer must be “alert, alive and sensitive” to the condition of Canadian-born children who may be left
     behind, or taken with a parent subject to a removal order (must consider child’s short-term interests)
    Interests of children are not determinative but must be considered and given some weight in a PRRA application


                               E. Security Certificates and Danger Opinions
                                                                                                                             CB 745-760

                                                            Key questions
   Would an amicus curiae cure the procedural defects found in Charkaoui?
   If an amicus curiae cannot cure the procedural defects, would the SCC find that the violation of s. 7 is justified under s. 1?
   On balance, is the use of immigration law for criminal law purposes justified in a post-9/11 world?

   This regime applies exclusively to non-citizens

Security certificates
   Procedure established in IRPA ss. 77-80
   Alternative to the regular process, initiated by MCI and Minister of Public Safety and Emergency Preparedness when they
    exercise authority granted by IRPA s. 77 and sign a security certificate – must believe that FN or PR is inadmissible to
    enter/remain in Canada on grounds of security, among others
   FC judge determines reasonableness of certificate
         o    If judge believes disclosure of information on which certificate is based would be injurious to nat‘l security or safety of a
              person  must ensure confidentiality  evidence heard in absence of person named; undisclosed evidence; secret trial
              (in camera and ex parte), with no one acting on named persons‘ behalf
         o    If FJ judge believes certificate is unreasonable  quashed
         o    If FJ judge believes certificate is reasonable  conclusive proof of inadmissibility under s. 81  removal order
                       Certificates are more often found to be reasonable
                       Removal order cannot be appealed; no possibility of PRRA
                       Judge must provide named person with summary of case against him, but this does not disclose material that
                        might compromise nat‘l security
                       PRs


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                                May be held in detention (Minister must believe they are threat to nat‘l security or will not show up at
                                 trial)
                                Detention must be reviewed within 48 hours
                                Entitled to review of detention every six months
                      FNs
                              Must be detained
                              Must apply for review, but cannot do so for 120 days after FC judge‘s finding of reasonableness
                              Negative review can lead to released (but even if released, may be deported)
                      Named person loses protection of principle of non-refoulement under IRPA s. 115(1) if Minister issues danger
                       opinion

Danger opinions
  Eligibility
        o      IRPA s. 101(2)(b): MPSEP can issue opinion that refugee claimant is a danger to the public in Canada  makes
               person‘s refugee claim ineligible to be determined by IRB
        o      Applies to those who have committed criminal offences outside Canada
  Refoulement
        o      IRPA s. 115(1): protected persons (declared by RPD or after PRRA) have right to non-refoulement to a country where
               they would be at risk of persecution, torture, or cruel/unusual treatment
        o      IRPA also declares that right does not vest in the subject of a danger opinion OR a person who is inadmissible on
               grounds of security/HR/int‘l rights/organised criminality if Minister believes that person should not be able to remain in
               Canada based on nature and severity of acts committed
        o      IRPA provisions than previous Immigration Act because of the ―nature and severity‖ provision: possibility of
               refoulement not just because of danger to Canada’s security but because of past acts

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 748-760
Facts
    1991: S (Tamil, from Sri Lanka) recognised as Convention refugee
    1995: gov‘t issued security certificate based on data provided by CSIS that S was a member of the Tamil Tigers
    FC judge found certificate reasonable
    [Old procedure] deportation hearing adjudicator found no reasonable ground to conclude S directly engaged in terrorism, but
     held he should be deported on grounds of membership
    Minister notified S that she was considering issuing a danger opinion based on national security
    IO found that S faced risk of torture, but it wasn‘t certain and was counterbalanced by membership in Tamil Tigers  wrote
     memo that recommended a danger opinion
    Minister issued danger opinion and deportation order
    S not provided with copy of IO‘s memo or opportunity to respond to it; no reasons given
    S applied to FC-TD for judicial review (lost), to FCA (lost), now to SCC
Issue: (1) Is the terms ―danger to the security of Canada‖ unconstitutionally vague? (2) Does deportation for membership in a
terrorist organisation unjustifiably violate freedom of expression/association? (3) Are deportation procedures constitutionally valid?
Holding (Court): (1) No. (2) No. (3) No.
    Parliament must balance evil of terrorism against need not to undermine values fundamental to democratic society
1. ―Danger to the security of Canada‖
    Vague law may be unconstitutional for (1) insufficient notice of consequences of conduct to those affected, or (2) inadequate
     limitation on law enforcement discretion
    Do not conflate ―danger to the security of Canada‖ with membership in a terrorist organisation (danger means something more)
    “Danger to the security of Canada” to be distinguished from “danger to the public” (though may overlap): danger
     to the public addresses threats to individuals and requires that person in question has been convicted of a serious
     offence; confusing the two would avoid the requirement of a conviction
    Fair, large and liberal interpretation to be accorded to ―danger to the security of Canada‖ in deportation legislation
    Defining ―danger to the security of Canada‖ is difficult, and definition will be fact-based and political – but if Minister has
     evidence, courts should not interfere  not unconstitutionally vague
    Support of terrorism abroad raises possibility of adverse repercussions on Canada’s security (post-9/11)
    To insist on proof of specific threat to Canada as proof of ―danger to the security of Canada‖ is to set the bar too high
    Must be real and serious possibility of adverse effect to Canada, but threat need not be direct; may be grounded in
     distant events that indirectly have a real possibility of harming Canadian security
    To refoule a refugee to torture requires evidence of a serious threat to nat‘l security
    ―Danger to the public‖ provision allows deportation of those who pose no danger to security of the country per se, provided they
     have committed a serious crime
    If a refugee is wanted for crimes in a country that will not torture him on return, gov‘t may be free to extradite him to face those
     charges whether or not he has committed crimes in Canada
    ―Danger to the security of Canada‖ provides fair notice and limits law enforcement discretion  not unconstitutionally vague
    S can be deported if Minister certifies him as substantial danger to Canada and provided that he is found to be engaged in
     terrorism or a member of a terrorist organisation
2. Freedom of expression/association
    S claims that mere membership unjustifiably limits opportunity for Convention refugees to express their views on dissident
     movements outside the country, as well as their freedom to associate with other people in Canada who come from similar
     backgrounds
    Gov‘t claims that support for organisations engaged in terrorism is not constitutionally protected expression/association
    Powers of a state to refuse entry are broader than to deport

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   Section 19 [of old Act] permits Canada to refuse entry to those who are engaged in terrorism or are members of terrorist
    organisations – but is also used to classify those who are subject to the deportation section, as Minister interprets it to include
    conduct of refugees after entry
   Unnecessary to resolve this ambiguity, as s. 19 as incorporated into deportation provisions does not breach Charter rights
   Conduct caught by the section does not attract constitutional protection if interpreted properly by the Minister
3. Deportation procedures
   Person facing deportation to torture must be informed of case to be met
   Subject to privilege of similar valid reasons for reduced disclosure (e.g., security), material on which Minister is basing her
    decision must be provided to the individual
   Fundamental justice requires that an opportunity be provided to respond to the Minister’s case and challenge the
    information on issues of validity; should be permitted to present evidence showing that continued presence in Canada will not be
    detrimental to Canada notwithstanding membership in the organisation in question
   Assurances: must distinguish between assurances by a state that it will not apply the death penalty (through a legal process;
    easier to monitor, more reliable) and that it will not torture (through an illegal process, esp. if it or others have tortured in the
    past; harder to monitor, less reliable); must consider HR record of gov‘t giving the assurances
   Minister must provide written reasons for her decision, articulating and rationally sustaining a finding that there are no
    substantial grounds to believe the individual in question to be subject to torture, execution, or cruel/unusual punishment, if
    person has raised those arguments
   Reasons must also articulate why (subject to privilege or valid reasons for non-disclosure) Minister believes individual to be a
    danger to Canadian security
   Reasons must emanate from person making the decision (here, Minister), rather than advice or suggestion
   For refugee to establish the threshold showing that a risk of torture or similar abuse exists before Minister must consider fully
    the possibility
   Generally to deport a refugee, where there are grounds to believe that this would subject him to a substantial risk of torture,
    unconstitutionally violates Charter s. 7 – but it is possible that exceptional cases can be justified under s. 7 balancing or s. 1
   S made a prima facie case showing substantial risk of torture if deported to Sri Lanka
   S did not benefit from adequate procedural protections  case remanded to Minister for reconsideration
   S entitled to new deportation hearing; will remain in Canada until new hearing is complete
Ratio
   A person constitutes a “danger to the security of Canada” if (s)he poses a serious threat to the security of Canada,
    whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the
    security of other nations
   Threat must be “serious”: grounded on objectively reasonable suspicion based on evidence and in the sense that
    the threatened harm must be substantial rather than negligible
   Membership or participation in a terrorist organisation is not constitutionally protected expression/association
   If refugee establishes that torture is a real possibility, Minister must provide him with all relevant information and
    advice she intends to rely on, provide him with an opportunity to address that evidence in writing, and after
    considering all the relevant information, issue responsive written reasons
   Deportation to face torture generally violates Charter s. 7, but there may be exceptional cases where it is
    constitutional
Notes: an SCC majority has yet to find that a s. 7 violation is justified under s. 1

Charkaoui v. Canada (Minister of Citizenship and Immigration), [2007] 1 S.C.R. 250: supp. doc.
Facts
   C is a PR; Harkat and Almrei are FNs recognised as Convention refugees
   All detained based on allegations that they were a threat to the security of Canada by reasons of involvement in terrorist
    activities
Issues: (1) Does IRPA procedure for determining reasonableness of certificate unjustifiably infringe Charter s. 7? (2) Do IRPA
detention provisions for FNs and PRs unjustifiably infringe (a) Charter ss. 10(c), or (b) Charter ss. 7 or 12?
Holding (McLachlin, for the Court): (1) Yes. (2a) Yes. (2b) Depends (see below).
   Tension between security and accountable constitutional governance
1. Determining reasonableness
   Successful s. 7 claim requires proof of (1) deprivation of a s. 7 right (2) that is not in accordance with principles of
    fundamental justice
   Liberty interest definitely engaged; security might be (removal from Canada; allegation of terrorism; deportation to torture)
   Deportation to torture is not at issue here
   Medovarski (2005, SCC): deportation of a non-citizen in itself cannot implicate s. 7 liberty and security interests – but some
    features associated with deportation (e.g., detention in course of certificate process, prospect of deportation to torture) might
   Overarching principle of fundamental justice: before state can detain someone, it must accord them a fair judicial
    process
   3 basic facets of this principle
a. Hearing before an independent and impartial magistrate – met here
b. Decision by the magistrate on the facts and the law
i.  Facts
   IRPA process tries to meet this requirement by placing material before the judge for evaluation
   Material produced by the government; vetted for reliability and sufficiency only by the judge
   Judge does not have full and independent powers characteristic of an inquisitorial system, and the named person lacks the right
    to participate in the proceedings that characterise an adversarial process
   Judge’s decision will be based on all evidence provided – but might not be based on all available evidence


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ii.  Law: same issues; named person may not be a position to raise legal objections or to develop legal arguments based
     on evidence
c. Right to know the case put against one, and right to answer that case
    [Same concerns arise with regard to detention review process]
    Named person may be deprived of some/all information, which denies him ability to know the case to meet
    Judge required to ensure confidentiality of information  may have to decide at least partly based on information that
     named person never sees
    Right to know the case to be met is not absolute; other situations provide for in camera or ex parte hearings
    SCC has repeatedly recognised that nat‘l security considerations can limit extent of disclosure of information to the affected
     individual
    In some cases, substitutes for full disclosure may permit compliance with Charter s. 7
    Where limited disclosure of ex parte hearings have been found to satisfy the principles of fundamental justice, intrusion on
     liberty and security has typically been less serious than that effected by IRPA
    In nat‘l security context, non-disclosure + grave intrusion on liberty = difficult to find adequate substitutes that satisfy s. 7
    If s. 7 is to be satisfied, person must be given necessary information of substantial substitute therefor – neither
     happens here
    Issue at s. 7 stage is not whether gov’t has struck right balance between security and liberty (that is a s. 1 issue);
     s. 7 question is whether basic requirements of procedural justice have been met
    Fairness of IRPA procedure rests entirely on shoulders of the judge, who cannot fill vacuum left by removal of traditional
     procedural guarantees
    Judge is eventually deciding based on incomplete and potentially unreliable information
    Judge‘s activity on behalf of named person is confined to what is presented by the ministers
d. Section 1
    So: IRPA‘s procedure does not confirm to s. 7
    Violations of s. 7 are not easily saved by s. 1
i.   Protection of nat’l security and intelligence sources is a pressing and substantial objective
ii. IRPA’s non-disclosure provisions are rationally connected to this objective
iii. Question of minimal impairment fails
    Canada has devised processes that go further in preserving s. 7 rights while protecting sensitive information; one of these
     processes was recently applicable in security certificate context
    UK has a special counsel system that protects named person‘s interests while preserving confidentiality of information;
     widespread support for this in Canada; has been criticised as well; not perfect but does better than current system
2. Detention of FNs and PRs
a. Sections 9 and 10(c)
    Almrei claims that detention is arbitrary with respect to FNs, because it permits detention without warrant by mandating
     detention (unlike for PRs) – but it is not arbitrary, because the reasons must be rationally related to the purpose of the power of
     detention; based on danger posed by the named person; signature of a certificate necessarily relates to the
     dangerousness of the individual
    Almrei claims that detention is arbitrary in that it prevents review until after 120 days (unlike PRs) – granted, because officials
     may need to act immediately, but if they can do it within 48 hours for PRs they have to be able to do it just as fast for FNs
    Not saved by s. 1
b. Sections 7 and 12
    Detention itself, or its length, is not objectionable (detention is never pleasant) – only cruel and unusual if it
     violates accepted norms of treatment, including denying means to challenge a detention
    Almrei claims that legislative scheme and conditions of detention transforms detention into cruel and unusual – but s. 12 is no
     means to challenge the overall fairness of a particular legislative regime
    But indefinite detention in circumstances where detainee has no hope of release or recourse to a legal process to procure his
     release may cause psychological stress and thus constitute cruel/unusual treatment – but the IRPA, properly interpreted,
     provides a process for revising detention and obtaining release
    Courts have read the provision as allowing the judge to enquire whether terms and conditions could make the release safe
    IRPA in principle imposes detention only pending deportation, but may permit lengthy and indeterminate detention
     or lengthy period subject to onerous release conditions
    Use of indeterminate detention in criminal law context does not establish its constitutionality in the immigration context
    Section 7 and 12 principles require that where a person is detained or subject to onerous conditions of release for an extended
     period under immigration law, detention or conditions must be accompanied by meaningful process of ongoing review
     that takes into account the context and circumstances of the individual case; persons must have opportunities to
     challenge their continued detention or the conditions of their release
    More obvious considerations: reasons for detention; length of time in detention and length of time detention will likely
     continue; whether applicant or respondent has caused any delay or not been as diligent as possible; availability, effectiveness,
     and appropriateness of alternatives to detention; amount of time that is anticipated until a final decision
    Extended periods of detention under certificate provision of IRPA do not violate ss. 7 and 12 if accompanied by a
     process that provides regular opportunities for review of detention
Ratio
    3 basic facets of the principles of fundamental justice: hearing before an independent and impartial magistrate;
     decision by the magistrate on the facts and the law; right to know the case put against one, and right to answer
     that case
    Judge’s decision must be based on all available evidence
    If s. 7 is to be satisfied, person must be given necessary information of substantial substitute therefor
    Violations of s. 7 are not easily saved by s. 1
    Reasons for detention must be rationally related to the purpose of the power of detention


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Immigration and Refugee Law (Fox-Decent)                                                                Dorian Needham (Fall 2007)
    Detention provisions that apply different procedural requirements on different classes of persons and imply less
     diligence for some than others are likely unconstitutional
    Detention itself, or its length, is not objectionable (detention is never pleasant) – only cruel and unusual if it
     violates accepted norms of treatment, including denying means to challenge a detention
    More obvious considerations: reasons for detention; length of time in detention and length of time detention will
     likely continue; whether applicant or respondent has caused any delay or not been as diligent as possible;
     availability, effectiveness, and appropriateness of alternatives to detention; amount of time that is anticipated until
     a final decision
    Distinction between citizens and non-citizens does not violate Charter s. 15
Notes: special advocate system has since been enacted: it was tried in the UK, but isn‘t working – both of the initial two advocates
quit because they felt they couldn‘t do their job

   For citizens, these issues are dealt with through the criminal law process
         o    In a criminal procedure, what might be kept from the accused is the manner in which evidence was collected – but not
              the evidence itself
         o    A ―real, live‖ case of this is happening right now with the men arrested in Southern Ontario in the Toronto plot
   Fox-Decent: the whole system is a travesty, and motivated by racist discourse
         o    The only people caught by it seem to be spies and Muslims
         o    If a citizen were arrested, a host of procedural protections would be made available
         o    The IRPA explicitly says that the rules of evidence applicable in courts do not apply in security certificate cases
         o    In a criminal procedure, the burden of proof lies on the Crown – and this is no accident
         o    Double jeopardy is also abrogated
                        In criminal law, the Crown only gets one try at prosecuting you, to avoid ongoing endless prosecution
                        Here, the ministers can (and do) sign a second certificate when the first is struck down
         o    Nowhere in the SCC‘s decision do you find a response to the question of whether it is just to treat people this way
         o    If the Charter applies (as Wilson J. said) to every person physically present in Canada, this process should not stand




                                                          Page 73 of 74
Immigration and Refugee Law (Fox-Decent)                                                                                                         Dorian Needham (Fall 2007)
                                                                                  INDEX
Cases
Ahani ......................................................................................................................................................................... 23, 25
Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs ................................................................................. 57
Awwad v. Canada (Minister of Citizenship and Immigration).................................................................................................... 36
Baker v. Canada ......................................................................................................................... 14, 18, 20, 21, 22, 23, 30, 39
Bhatti v. Canada (Minister of Citizenship and Immigration) ..................................................................................................... 35
Canada (Attorney General) v. Ward .................................................................................................... 49, 53, 54, 55, 56, 57, 58
Canada (Minister of Citizenship and Immigration) v. Williams .................................................................................................. 51
Canada (Minister of Employment and Immigration) v. Chiarelli ..................................................................................... 12, 15, 17
Caron v. Canada (Minster of Citizenship and Immigration) ...................................................................................................... 36
Chan v. Canada (Minister of Employment and Immigration) .................................................................................................... 56
Charkaoui v. Canada (Minister of Citizenship and Immigration) .................................................................................... 65, 69, 71
Chen v. Canada (2001) ................................................................................................................................................ 12, 13
Chen v. Canada (Minister of Employment and Immigration), [1994] .................................................................................. 31, 33
Chiau v. Canada (Minister of Citizenship and Immigration)...................................................................................................... 66
de Guzman v. Canada (Minister of Citizenship and Immigration) ................................................................................... 38, 39, 40
Dinh v. Canada (Minister of Citizenship and Immigration) ....................................................................................................... 30
Dogra v. Canada (Minister of Citizenship and Employment) ..................................................................................................... 32
Hilewitz v. Minister of Citizenship and Immigration ................................................................................................................ 64
Hinzman (2006) ................................................................................................................................................................ 52
Inter-American Commission on Human Rights, Report No. 51/96 (13 March 1997) .................................................................... 45
Islam v. Secretary of State for the Home Department ............................................................................................................ 56
Kim v. Canada (Minister of Citizenship and Immigration) ........................................................................................................ 30
Koo .................................................................................................................................................................................. 13
Langner v. Canada ....................................................................................................................................................... 12, 13
Li v. Canada (Minister of Citizenship and Immigration) ........................................................................................................... 65
Macapagal v. Canada (Minister of Citizenship and Immigration) ............................................................................................... 35
Mack v. Canada ...................................................................................................................................................................5
Medovarski ................................................................................................................................................................. 18, 71
Moreno v. Canada (Minister of Employment and Immigration) ................................................................................................. 60
Mugesera v. Canada (Minister of Citizenship and Immigration) .......................................................................................... 64, 67
Pourghasemi ..................................................................................................................................................................... 13
Pushpanathan v. Canada (Minister of Citizenship and Immigration) ............................................................................... 19, 59, 61
R v. Quong-Wing .................................................................................................................................................................3
Ramirez ................................................................................................................................................................. 59, 60, 61
Re Munshi Singh ..................................................................................................................................................................4
Refugee Protection Division File TA1-24763 (11 February 2003) .............................................................................................. 62
Romans v. Canada ....................................................................................................................................................... 12, 15
Ryan ................................................................................................................................................................................ 19
Sale (1993, US SC) ............................................................................................................................................................ 45
Salh v. Canada (Minister of Employment and Immigration) ..................................................................................................... 37
Sheikh v. Canada (Minister of Citizenship and Immigration) .................................................................................................... 32
Singh v. Minister of Employment and Immigration ...................................................................................................... 16, 17, 21
Suresh v. Canada (Minister of Citizenship and Immigration) ........................................................................ 16, 18, 21, 22, 23, 70
Varga v. Canada (Minister of Citizenship and Immigration) ..................................................................................................... 69

Other Authorities
Carens, ―Aliens and Citizens‖......................................................................................................................................6, 10, 11
Dauvergne, ―Amorality and Humanitarianism in Immigration Law‖ ........................................................................................... 11
Fortaleza v. Canada (Minister of Citizenship and Immigration) ................................................................................................. 41
Galloway, ―Liberalism, Globalism, and Immigration‖ ........................................................................................................... 9, 11
Hathaway, The Law of Refugee Status .................................................................................................................................. 43
Macklin, ―Public Entrance/Private Member‖ ........................................................................................................................... 40
Macklin: ―On the Inside Looking In: Foreign Domestic Workers in Canada‖ ......................................................................... 26, 28
Rawls ....................................................................................................................................................................... 6, 7, 10
Ruhs, ―Designing Viable and Ethical Labour Immigration Policies‖ ............................................................................................ 27
Sheppard, ―Women as Wives‖ ............................................................................................................................................. 41
Walzer, ―Membership‖ ........................................................................................................................................... 7, 8, 11, 26

Treaties and Conventions
American Declaration of the Rights and Duties of Man ...................................................................................................... 24, 45
Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.............................................. 24, 25
Convention on the Elimination of all Forms of Discrimination Against Women ...................................................................... 42, 65
Convention Relating to the Status of Refugees ................................................................................................ 43, 44, 45, 47, 49
Safe Third Country Agreement ................................................................................................................................. 46, 47, 63
Smart Border Declaration ................................................................................................................................................... 63
Vienna Convention on the Law of Treaties ............................................................................................................................. 49

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