A person who has been found to be inadmissible to Canada on the grounds of serious criminality may not appeal to the Immigration Appeal Division.
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There are three types of removal orders in Canada. These are the “Departure Order”, the “Exclusion Order”, and the “Deportation Order”.
A Departure Order requires that a person leave Canada within 30 days after the order becomes enforceable. Failure to do so causes the Departure Order to become a Deportation Order.
An Exclusion Order provides that the removed person cannot return to Canada for one year unless Authorization to Return to Canada (“ARC“) is obtained. For Exclusion Orders resulting from misrepresentation the bar is two years.
A Deportation Order results in a person being permanently barred from returning to Canada. Such a person may not return unless he/she receives ARC.
An ARC is not routinely granted. Individuals applying for an ARC must demonstrate that there are compelling reasons to consider an ARC when weighed against the circumstances that necessitated the issuance of the removal order. Applicants must also show that they post minimal risk to Canadians and to Canadian society.
The factors that an immigration officer should consider include:
- The severity of the immigration violation that led to the removal.
- The applicant’s history of cooperation with Citizenship and Immigration Canada (“CIC“).
- Whether there any previous immigration warrants.
- Whether the applicant complied with the terms and conditions of the document issued by CIC.
- Whether the applicant paid for the removal costs.
- Whether compelling or exceptional circumstances exist.
- Whether there alternative options available to the applicant that would not necessitate returning to Canada.
- Whether there are factors that make the applicant’s presence in Canada compelling (e.g., family ties, job qualifications, economic contribution, temporary attendance at an event).
- Whether there are children directly implicated in the application whose best interests should be considered.
- Whether the applicant supports him or herself financially.
- How long the applicant intends to remain in Canada.
- Whether there are benefits that Canada may derive.
The recent case of Sidhu v. Canada (Citizenship and Immigration), 2010 FC 1055 provides an example as to how hard obtaining ARCs can be. There, the Applicant was a failed refugee claimant from India. She was deported in 1998. She later conceded that her claim was a lie.
Her mother, a Canadian, later applied to sponsor her. In order to return to Canada, Ms. Sidhu required an ARC. CIC denied the application, and its decision was upheld by both the Immigration Appeal Division and the Federal Court. All three bodies found that given the nature of the removal, family reunification was not a compelling enough reason to grant an ARC.