Question & Answer – Expungements and Inadmissibility (IR-05)

The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada regarding the immigration consequences of foreign expungements for individuals who otherwise may be inadmissible to Canada.  

Please note that what I have reproduced below should not be viewed as legal advice.  The adaptation of the question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

Question – May 7, 2013

Greetings,

My name is __________ and I am a Canadian Immigration Lawyer based in ______.

When Burke Thornton was the Program Manager in Buffalo he had confirmed with headquarters that the state of California expungment (under s. 1203.4) is equivalent to a full expungement in Canada. Could you kindly confirm that California’s expungement procedure (1203.4) which allows you to state to any private individual/institution that you were never convicted of an offence for which you received an expungement is equivalent to a Canadian pardon?

Thank you very much.

Answer – May 27, 2013

Good day and thank you for your question.

CIC assesses inadmissibility on a case by case basis.

In cases of a foreign expungement, a criminal equivalency is usually done to establish whether the foreign country’s legal system is based on similar foundations and values as Canada’s and to look at the circumstances under which the expungement was granted and if it can be accepted as mitigating circumstances in Canada.

An expungement in the State of California is not automatically an equivalent to a record suspension (formerly called “pardon”) in Canada. Getting a foreign pardon or expungement, is not an automatic equivalency to Canada’s system nor is it a “green light” to enter Canada. A proper assessment needs to take place. I hope that this answers your question and please do not hesitate to communicate with us should you have further questions.

It is also important that people understand the distinction between “sealed records” and “expungements.”  While Citizenship and Immigration Canada generally deems expungements to not be a conviction, the sealing of an arrest record does not resolve an inadmissibility.  

It is even more important that people with either expungements or sealed records not lie when they answer whether they have ever been arrested.  


RIMbits Revealed (May 2010)

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.


Data Confirms Removals from British Columbia Up Since Conservatives Took Office

We have obtained through an Access to Information and Privacy Act request data showing the Canada Border Services Agency’s removal statistics for people in British Columbia from 2003 – 2012 (2012 is partial).  I have reproduced below two pages of the data.  We have also obtained a chart showing Removal Orders from British Columbia by Country of Birth by Year, which I have not published.  If you wish to see it please contact me and I will send it to you by e-mail.

As the chart below demonstrates, removals from British Columbia has increased under the Conservatives.  Interestingly, it peaked in 2008 and 2009, before begin to decline.
removals

There is a lot of interesting information contained in the data below, including tables showing:

  • Removal Orders by Type;
  • Removal Orders by Refugee Claimant vs. Non Refugee Claimant;
  • Removal Orders by Status in Canada;
  • Removal Orders by Inadmissibility Ground;
  • Removal Orders by Gender; and
  • Removal Orders by Age.  

Please note that the Tables below are a copy of an official work by the Government of Canada which was obtained through an Access to Information and Privacy Act Request, and to my knowledge is not otherwise publicly available.  While I believe that the data is still current, I cannot be assured of this.  The reproduction of this document has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.


Inadmissibility Due to Non-Compliance with the Act

Individuals can be inadmissible to Canada for numerous reasons, including criminality, misrepresentation, medical issues, and non-compliance with Canadian immigration legislation.  This latter reason, non-compliance with the Canadian immigration legislation, can seem extremely vague.  Fortunately, the Citizenship and Immigration Canada Manual contains a list of the different frequently used reasons for declaring someone inadmissible for non-compliance with the Act.

They are:

  • Entering Canada to remain on a permanent basis without first obtaining a permanent resident visa.
  • Entering Canada to remain on a temporary basis without first obtaining a temporary resident visa.
  • Entering Canada to study without first obtaining a study permit.
  • Entering Canada to work without first obtaining a work permit.
  • Not answering questions truthfully or producing required relevant documents.
  • Not submitting to a medical examination.
  • Not holding a medical certificate that is based on the last medical examination.
  • Not holding the required documents to enter Canada.
  • Not establishing that the person will live Canada by the end of the authorized period.
  • Where a person is subject to an enforced removal, returning to Canada without authorization.
  • Working without authorization.
  • Studying without authorization.
  • Not leaving Canada at the end of the authorized period.
  • Not reporting to a port of entry examination without delay.
  • Being a permanent resident and not complying with the residency requirement.

Given all this, you might wonder how it is that more people aren’t declared inadmissible to Canada.  The reason is that immigration officers have the discretionary power to decide whether or not to write what is known as an A44(1) inadmissibility report.  In cases where Citizenship and Immigration Canada or the Canada Border Services Agency does not intend to formally remove someone from Canada, officers can advise an individual to simply return at a later date with additional information, or, in the case of individuals who are trying to enter Canada, simply ask them to voluntarily withdraw their attempt to enter Canada, and try again later.

The relevant factors in determining whether to formally render someone inadmissible to Canada are:

  • Is the person concerned a permanent resident or a foreign national?
  • Is the person already the subject of a removal order?
  • Is the person already the subject of a separate inadmissibility report incorporating allegations
    that will likely result in a removal order?
  • Is the officer satisfied that the person is, or soon will be, leaving Canada? And in such a case,
    is the imposition of a future requirement to obtain consent to return warranted?
  • Is there a record of the person having previously contravened immigration legislation?
  • Was the non-compliance unintentional or excusable for a valid reason?
  • Has the person now been fully counselled on the topic of their inadmissibility? And is the
    officer satisfied that the person now understands what is required in future to overcome their
    inadmissibility?
  • Is there any reason to believe that, after having previously been counselled on the topic of
    their inadmissibility, the person simply chose to ignore that counselling?
  • Has the person been cooperative?
  • Is there any evidence of misrepresentation?
  • Has the person applied for restoration of status, and does the person appear to be eligible?
  • Has a temporary resident permit been authorized?
  • How long has the person been in Canada?
  • Has the person been a permanent resident of Canada since childhood?
  • Was the permanent resident an adult at the time of admission to Canada?
  • How long has the permanent resident resided in Canada after the date of admission?
  • Are family members in Canada emotionally or financially dependent on the permanent
    resident? Are all extended family members in Canada?
  • Are there any special circumstances in the likely country of removal, such as civil war or a
    major natural disaster?
  • Is the permanent resident financially self-supporting or employed? Does the person possess a
    marketable trade or skill?
  • Has the permanent resident made efforts to establish themselves in Canada
  • Is there any evidence of community involvement? Has the permanent resident received social
    assistance?
  • Has the permanent resident been cooperative and forthcoming with information?
  • Has a warning letter been previously issued?
  • Does the permanent resident accept responsibility for their actions?
  • Is the permanent resident remorseful, or has the person supplied any necessary
    documentation requested by an officer?

 


Income Tax Statements and Inadmissibility

On December 8, 2010, the Federal Court released its decision in Masych v. Canada (Citizenship and Immigration), 2010 FC 1253 (“Masych“)  The case involved an individual whose temporary work permit application was denied because she did not produce income tax statements from 2002-2006 after an immigration officer (the “Officer”) requested that she do so.  The reason that the Officer wanted copies of her tax statements was not to confirm her employment history for determining whether or not she was qualified for the job that she was applying for, but rather to determine whether or not she was inadmissible for having ever committed tax evasion.

The applicant had never been convicted of a criminal offense.  No evidence was ever presented that she had been charged with a criminal offense.  Finally, it is important to note that the applicant lived in the United Kingdom from 2002-2006, a country with a legal system similar to Canada’s.

The applicant did not produce the income tax statements as requested, and her application was rejected on the grounds that the Officer was unable to determine whether or not she was inadmissible to Canada for having committed an offense abroad that would constitute an indictable offense in Canada (tax evasion). The Federal Court upheld the Officer’s decision.  The Court noted that the Officer had a duty to be satisfied that the applicant was not inadmissible, and that tax evasion could result in an applicant being inadmissible.

A reading of the case suggests that the only argument that the applicant’s counsel made was that the applicant had provided a statement stating that she only worked part time, confirmed by the employer, and that this should have satisfied the visa officer.  The Federal Court quickly punted this decision aside noting that such a response did nothing to alleviate the officer’s concern.  As this appears to have been the only argument raised, the Federal Court did not discuss the issue of whether the immigration officer was correct in asking for tax statements in any great detail.

Does requiring income tax statements for the purpose of determining tax evasion make sense?  Should the immigration officer have gone on a fishing expedition to determine if the applicant had committed any offenses abroad?  Is this a proper application of the inadmissibility provisions of the Immigration and Refugee Protection Act?

The Citizenship and Immigration Canada Manual states that as part of Canada’s international commitment to combat transnational crime, the policy intent in applying the “committing an offense” provisions is first and foremost to deny entry into Canada and thereby prevent Canadian territory from being used as a safe haven by persons who are subject to criminal proceedings in a foreign jurisdiction, or who are fleeing from such proceedings.

In Masych, there was no evidence that the applicant was fleeing prosecution. Indeed, there was no evidence that she had ever been suspected of income tax evasion prior to the visa officer raising this concern.  As such, was it appropriate for the visa officer to go on what essentially amounts to a fishing expedition?

The Manual further notes that in order to determine on reasonable grounds that an act was committed, it must be established, amongst other things, that an act was committed.  This can be established through credible information or intelligence that a person had committed an offense.   In Masych, there was simply no evidence that the applicant had committed income tax evasion.

Even if the applicant had provided income tax statements, this in of itself does not show compliance with UK income tax law.  Unless the visa officer also happens to be an expert on foreign tax law, it is impossible for the officer to know whether an applicant paid the appropriate amount of tax, and if not, whether the failure to do so was deliberate.  Accordingly, asking for income tax statements does not resolve this issue in any meaningful way.

Unfortunately, it does not appear that any of these issues were discussed in the case.  If requesting income tax statements for the purpose of determining inadmissibility becomes routine, I imagine that it will in the future.


Espionage, Secret Evidence, and Immigrating to Canada

Afanasyev v. Canada (Citizenship and Immigration), 2010 FC 737, is a gold-mine of information regarding IRPA 34 inadmissibility.  The decision involves claims of cold war espionage, secret evidence, and abuse of authority.

The applicant was a citizen of the Ukraine. He applied for permanent resident status in July, 2000. During his interview, he explained that he had completed compulsory military service in the Soviet Army from 1985 to 1987. He said that he was responsible for telecommunications and intercepts, and denied any affiliation to the Russian or Ukrainian intelligence services. According to a CSIS brief, he was also responsible for listening to English language communications coming from US bases in West Germany, debriefing various frequencies and telegraph codes, and receiving training in NATO telegraphic code.

On April 14, 2008, the Immigration Officer informed the applicant that he might be inadmissible under sections 34(1)(a) and (f) of the Immigration and Refugee Protection Act. These sections provide that:

Security

34. (1) A permanent resident or a foreign national is inadmissible on security grounds for

(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;

(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).

On June 13, 2008, the applicant made extensive submissions denying that he was encompassed by this section. He also requested that, in the alternative, he be granted ministerial relief pursuant to s. 34(2) of IRPA, which states that:

Exception

(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.

On July 15, 2008, the Immigration Officer said that if the applicant wished to make a s. 34(2) application, then he must do so within 60 days of receipt of her letter, and that if the applicant failed to do so, then it would be concluded that no submission was forthcoming.

On August 19, 2008, the applicant made more submissions on the issue of the s. 34(1) breach. He also stated that he was reserving the right to make a s. 34(2) submission, and that it would be premature to make those submissions until the 34(1) issue was resolved.

On October 2, 2008, the Officer found the applicant inadmissible under s. 34(1) of the Act. In her decision, she stated that:

Specifically, during your military service with the Soviet Army from 1985 to 1987, you were a member of the 82nd Special Communications Brigade, 11th Company, 1st Platoon.  You were trained in radio intelligence that consisted of propaganda, physical training, interception, grammar, spelling, audition, and special NATO telegraphic codes.  Your duties during your assignment in Torgau, East Germany entailed listening to English language communications coming from US bases in West Germany and identifying and debriefing various frequencies and telegraph codes.  I have reached this conclusion because you made these admissions during your background investigation interviews.

On November 12, 2008, the Officer indicated that she would not consider a s. 34(2) submission because the timeline that she had required has passed.

The applicant filed for Judicial Review. An issue arose concerning information contained in the CSIS brief that was censored.  The applicant sought disclosure or to have a special advocate appointed to review the information pursuant to s. 87.1 of IRPA, which provides that:

If the judge during the judicial review, or a court on appeal from the judge’s decision, is of the opinion that considerations of fairness and natural justice require that a special advocate be appointed to protect the interests of the permanent resident or foreign national, the judge or court shall appoint a special advocate from the list referred to in subsection 85(1). Sections 85.1 to 85.5 apply to the proceeding with any necessary modifications.

So given all this, what did Justice Montigny rule?

Continue reading “Espionage, Secret Evidence, and Immigrating to Canada”