The following are some excerpts from the May 2010 RIMbits. RIMbits are messages sent from National Headquarters to missions overseas. The May 2010 RIMbits on admissibility consisted of seven questions and answers. I have reproduced three of them for free below.
Please note that the questions and answers below should not be viewed as legal advice. Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in May 2010.
Seized Travel Document
Q) We were notified by the authorities that a permanent resident travelling on a Canadian travel document has been charged with: (1) ______ (2) _____ and (3) _____. According to local authorities, the permanent resident has been released on bail with the condition that she surrender her travel document and that “Stop Orders” are placed with the Immigration exit controls at airports. We have been formally requested not to issue a new travel document to this permanent resident “until the matters have been disposed.”
As the charged person is not a Canadian, the Consular Section has referred this case to us. Although she has not done so at this point, it is possible that in the near future, this permanent resident may request from the visa office a Permanent Resident Travel Document or other documents to facilitate her return to Canada. Would you have any advice on what we may and may not consider if the permanent resident applies for a PRTD before the judicial proceedings have come to a conclusion?
(A) The permanent resident’s Canadian travel document has been seized by local authorities in connection with a legal matter. It is not lost or stolen, and she will get it back when the legal process is completed. Thus, even if Passport Canada issued replacement travel documents overseas, it would not be inclined to do so in this case.
To issue a PRTD, a travel document is required. Although the permanent resident might meet residency requirements for a PRTD, her circumstances would preclude a Single Journey Travel Document. Avoiding prosecution is not the exceptional circumstance usually required for issuance of a SJTD.
IAD-granted special relief overcoming the requirement for an ARC
(Q) The subject arrived in Canada and was accepted as a Convention refugee five years later. His application for landing was later refused, however, due to multiple criminal convictions. He was ordered deported at his appeal hearing and the IAD concluded that he was a danger to Canadian society.
The subject submitted an FC1 application to our office; this application was refused for criminal inadmissibility pursuant to paragraphs 36(1)(a) and 36(2)(a) or IRPA. Subsequently, the subject was given a pardon and the IAD allowed the appeal.
We would like to confirm that we are not bound by the IAD’s favourable comments to grant an ARC.
(A) Although the IAD does not have the jurisdiction to consider the requirements to obtain an ARC on its own, it does have the jurisdiction through its authority under A65 and A67(3) to consider whether special relief should be granted to members of the family class. Special relief may overcome the requirement to obtain an ARC. In this case, the IAD found that the applicant was a member of the family class. The requirement to obtain an ARC was put before the IAD and consequently, the IAD was required to consider this in rendering its decision.
Hong Kong “Spent” Criminal Convictions
(Q) From time to time we see police certificates which list prior convictions with the note that they are considered spent according to s. 2(1) of the Hong Kong Rehabilitation of Offenders Ordinance. Does the Hong Kong ordinance have the same effect as the Canadian and UK provisions?
(A) A spent conviction in Hong Kong is not equivalent to a pardon in Canada. The equivalent offence under the Canadian Criminal Code should be looked at in determining admissibility as usual.
The issue was raised and settled in Federal Court in “Kan v. Canada”.
Briefly, in the Burgon decision (referred to in Kan), the courts ruled that British legislation did create the same condition as a pardon and that individuals rehabilitated under this legislation were not inadmissible. The argument was made in Kan that the Hong Kong ordinance had the same effect. However, the Federal Court determined that subsection 2(1) of the Rehabilitation of Offenders Ordinance is not equivalent to a pardon in Canada because it only has effect until the individual is again convicted of an offence in Hong Kong. Further, subsection 2(1) is subject to numerous specified exceptions and does not have the effect of “cleansing the individual of any stain that the conviction caused” (Burgon).
Applicants may inadvertently incorrectly declare that they do not have any convictions believing that a “spent” convictions means that it no longer exists.