Report: An officer who believes that a permanent resident or foreign national in Canada is inadmissible may prepare a report for the Minister. IRPA s. 44(1). Referral to the Immigration Division (ID) and Issuance of a Removal Order by the ID: If the Minister believes the report is well-founded, the Minister may refer the report to the ID for an admissibility hearing: IRPA s. 44(2). Where the ID finds the person concerned to be inadmissible, the ID will issue the appropriate removal order (deportation order, exclusion order or departure order: IRPA s. 45, Regulations s. 229.
Right of Appeal – IRPA s. 63(5): The Minister may appeal to the IAD against a decision of the ID in an admissibility hearing not to issue a removal order.
Grounds for Inadmissibility
Misrepresentation Directly or indirectly misrepresenting or withholding a material fact that could induce an error in the administration of the IRPA. IRPA s. 40 | Non-Compliance with Act Failing to comply with the IRPA though acts or omissions that contravene, directly or indirectly, a provision of the IRPA. IRPA s. 41 | Serious Criminality or Criminality Convictions in Canada, or convictions or criminal acts committed abroad which are equivalent to offences in Canada. IRPA s. 36 |
Inadmissible Family Member Foreign nationals may be inadmissible due to the inadmissibility of a family member. IRPA s. 42 | Security Espionage, subversion, terrorism, danger to the security of Canada, violence that would endanger Canadians and membership in an organization committing espionage, subversion or terrorism. IRPA s. 34 | Human Rights or International Violations Acts considered War Crimes or Crimes Against Humanity, prescribed senior officials, etc. IRPA s. 35 |
Organized Criminality Membership in a criminal organization, or engaging in pattern of criminal activity, or transnational crime, such as people smuggling. IRPA s. 37 | Health grounds Foreign nationals with a health condition who is a danger to public health, public safety, or might cause excessive demand on health or social services. IRPA s. 38 (rarely seen) | Financial Reasons Foreign nationals unable or unwilling to support themselves. IRPA s. 39 (rarely seen) |
Facts: Factual findings are generally made on a balance of probabilities, but factual findings under IRPA ss. 34 to 37 include facts for which there are reasonable grounds to believe have occurred, are occurring, or may occur. IRPA s. 33.
Onus: In order to obtain a favourable decision and overturn the decision of the ID not to issue a removal order, the onus is on the appellant Minister to prove that the decision of the ID is not valid (error by the decision-maker or a contravention of natural justice). However, in the case of an appeal by the Minister respecting a permanent resident or a protected person, other than a person referred to in s. 64(1) (loss of appeal rights for inadmissibility under IRPA ss. 34 to 37), if the IAD is satisfied that, taking into account the best interests of a child directly affected by the decision, sufficient H&C considerations warrant special relief in light of all the circumstances of the case, it may make and may stay the applicable removal order, or dismiss the appeal, despite finding that the ID erred in not issuing a removal order. IRPA ss. 67(1)(a) & (b) and 69(2).
Proceeding – Oral and in Writing: A Minister’s appeal will often rely on the transcript of the ID admissibility hearing and may be decided without an oral hearing. There may be additional written and/or oral evidence from the parties and other witnesses.
Proceeding has Two Stages: A Minister’s appeal has two stages when IRPA s. 64(1) does not apply. In the first stage, the validity of the ID’s decision not to issue a removal order is considered. If the IAD concludes that the ID erred, then the IAD will take into account H&C considerations to determine whether despite concluding that the ID erred if there are sufficient H&C considerations to dismiss the Minister’s appeal or issue and to stay the removal order. IRPA s. 69(2).
H&C Considerations in a Minister’s Appeal Include:
- Nature and seriousness of the ground of inadmissibility alleged
- Risk of recidivism and/or risk for future danger to the public
- Remorse shown by the respondent
- Possibility of rehabilitation or the circumstances surrounding the failure to meet the conditions of admission as a permanent resident
- Length of time spent, and the degree to which the respondent is established in Canada
- Family in Canada and the dislocation or hardship would there be to the respondent’s family if the respondent is removed from Canada
- Support available for the respondent not only within the family but also within the community
- Degree of hardship that would be caused to the respondent by the respondent’s return to their county of nationality (where the likely country of nationality has been established), or assess degree of hardship that would be caused to the respondent by the respondent’s removal from Canada (where the likely country of nationality has not been established)
- Best interests of any child directly affected by the decision (BIOC)
Decision: A Minister’s appeal may be allowed or dismissed, or a removal order may be issued and stayed with conditions. IRPA ss. 66, 67, 68, & 69, Regulations s. 251.
Allowing an Appeal: If the IAD allows a Minister’s appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker (ID) for reconsideration. IRPA s. 67(2).
Stays: A removal order may be stayed for a period of time with mandatory and non-mandatory conditions. Prior to the IAD finally disposing a stayed appeal by allowing or dismissing it, the stay may at any time be reconsidered and where there is a subsequent serious criminality conviction the stay is cancelled by operation of law and the appeal is terminated. Stays are primarily granted in appeals involving serious criminality. IRPA ss. 36(1) & 68, Regulations s. 251.
General Provisions
Hearings: Hearings at the IAD are generally conducted in public, absent specific exceptions (e.g. refugee claimant, danger to the appellant or others, sexual offences where there could be non-publication/disclosure orders from a criminal court proceeding, young offender court issues): IRPA s. 166.
Designated Representatives: Designated Representatives (DRs) are appointed if an appellant (respondent in a Minister’s appeal) is a minor (under age 18) or unable, in the opinion of the IAD, to appreciate the nature of proceedings: IRPA, s. 167(2).
Impact of Allowing an Appeal: An officer, in examining a permanent resident or a foreign national, is bound by the decision of the IAD to allow an appeal in respect of the permanent resident or foreign national: IRPA s. 70(1).
Removal Orders: There are three types of removal orders, namely, departure orders, exclusion orders and deportation orders: Regulations ss. 223 to 229.
- Departure Orders: Generally, a foreign national who is issued a departure order is exempt from the requirement to obtain an authorization in order to return to Canada under IRPA s. 52 (ARC), however, they must within 30 days after the order becomes enforceable leave Canada in accordance with the Regulations, failing which the departure order becomes a deportation order.
- Exclusion Orders: Generally, an exclusion order obliges the foreign national to obtain an ARC during the one-year period after the exclusion order was enforced, however, the period is five years where the exclusion order is made based on a finding of inadmissibility for misrepresentation.
- Deportation Orders: Generally, a deportation order obliges the foreign national to obtain an ARC in order to return to Canada at any time after the removal order was enforced.