When the Port of Entry Can Issue Exclusion Orders

Each day thousands of people cross Canadian ports of entry.  There, the Canada Border Services Agency (“CBSA“) will interview them to determine if they are admissible to Canada.  If CBSA has concerns about whether someone is inadmissible to Canada, or determines that they are in fact inadmissible to Canada, then the CBSA can either further (or pause) the examination and require that the foreign national appear back at the port of entry a later date for the examination to continue, ask the person to voluntarily withdraw their attempt to enter Canada, refer the matter to the Immigration Division, or issue the individual a removal order.

Section 228(1) of the Immigration and Refugee Protection Regulations (“IRPR“) stipulates when CBSA can issue the removal order directly instead of referring the matter to the Immigration Division.  It states:

228. (1) For the purposes of [determining someone inadmissible to Canada], …, if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be

(a) if the foreign national is inadmissible under paragraph 36(1)(a) or (2)(a) of the [Immigration and Refugee Protection Act, (the “Act“)] on grounds of serious criminality or criminality, a deportation order;

(b) if the foreign national is inadmissible under paragraph 40(1)(c) of the Act on grounds of misrepresentation, a deportation order;

(b.1) if the foreign national is inadmissible under subsection 40.1(1) of the Act on grounds of the cessation of refugee protection, a departure order;

(c) if the foreign national is inadmissible under section 41 of the Act on grounds of

(i) failing to appear for further examination or an admissibility hearing under Part 1 of the Act, an exclusion order,

(ii) failing to obtain the authorization of an officer required by subsection 52(1) of the Act, a deportation order,

(iii) failing to establish that they hold the visa or other document as required under section 20 of the Act, an exclusion order,

(iv) failing to leave Canada by the end of the period authorized for their stay as required by subsection 29(2) of the Act, an exclusion order,

(v) failing to comply with subsection 29(2) of the Act as a result of non-compliance with any condition set out in section 184 or subsection 220.1(1), an exclusion order, or

(vi) failing to comply with the requirement under subsection 20(1.1) of the Act to not seek to enter or remain in Canada as a temporary resident while being the subject of a declaration made under subsection 22.1(1) of the Act, an exclusion order;

(d) subject to paragraph (e), if the foreign national is inadmissible under section 42 of the Act on grounds of an inadmissible family member, the same removal order as was made in respect of the inadmissible family member; and

(e) if the foreign national is inadmissible on grounds of an inadmissible family member in accordance with paragraph 42(2)(a) of the Act, a deportation order.

It is important to note that CBSA cannot issue the Exclusion Order directly except in the scenarios outlined above.  In Gupta v. Canada (Public Safety and Emergency Preparedness), 2015 FC 1086, our firm successfully applied to have a removal order quashed, partially on the grounds that the CBSA acted outside of their jurisdiction.  The Federal Court agreed, and stated that:

The applicant also argues that an exclusion order is not the appropriate sanction in these circumstances. He asserts that concerns about alleged violation of a work permit should instead be referred to the Immigration Division for consideration and, if necessary, sanction. The applicant points to subsection 228(1) of the IRPR which provides for various grounds of inadmissibility. Some grounds of inadmissibility can lead to an exclusion order, whereas others cannot and must instead be referred to the Immigration Division. The applicant notes that the list of grounds in paragraph 228(1)(c) (which concern inadmissibility under section 41 of the IRPA and which can lead to an exclusion order) is limited to matters that are quite straightforward to determine, e.g. whether a person failed to appear, failed to leave Canada, or failed to obtain an authorization. Other matters are not dealt with by an exclusion order. The applicant notes also that this list of grounds that can lead to an exclusion order includes subparagraph 228(1)(c)(iii) which refers to “failing to establish that they hold the visa or other document as required under section 20 of the Act.” The applicability of this provision in the present situation is at the center of this section of my analysis.

The applicant argues that the determination of whether the holder of a work permit has contravened or will contravene the terms of that permit is far from the kind of straightforward determination that is contemplated in the rest of paragraph 228(1)(c) of the IRPR. For example, there may be issues of doubt as to the meaning of certain conditions, as discussed in Singh Brar v Canada (Citizenship and Immigration), 2006 FC 1502. In the absence of any jurisprudence on this question, and recognizing the important consequences the Exclusion Order would have for the applicant, I am inclined to agree with the applicant. I do not conclude that any issues of doubt about the applicant’s contravention of the conditions of his work permit necessarily exist in the present case, but the possibility of such issues does serve to demonstrate that this type of situation (concern about alleged violation of a work permit) should be referred to the Immigration Division, and was not intended to be dealt with by means of an exclusion order. It is certainly possible, based on the facts on the record, that the applicant knowingly acted in violation of his work permit (and even that he intended to continue working in violation of his work permit), but that is a matter that should be addressed in a forum other than a decision leading to an exclusion order.

It is important to note that in Gupta the CBSA tried to also argue that IRPR r. 228(1) applied because they believed that the applicant was trying to enter Canada to work without a work permit because he may have been entering Canada to work in contravention of one or more terms of his existing work permit.  The Federal Court disagreed, stating that:

The specific contravened provision of the [Act] cited in the Exclusion Order is paragraph 20(1)(b), which requires every foreign national (with exceptions not applicable here) who seeks to enter Canada as a temporary resident to establish “that they hold the visa or other document required under the regulations.”

The “regulations” referred to here are the IRPR, and the pertinent provision thereof cited in the Exclusion Order is section 8, which provides that “[a] foreign national may not enter Canada to work without first obtaining a work permit.” Accordingly, the accusation against the applicant is that he entered Canada to work “without first obtaining a work permit.”

Regardless of whether the Exclusion Order was based on past violation of the work permit, or concern about possible future violations, one key issue in the present application is whether a person can be found to have entered Canada without first obtaining a work permit (in contravention of section 8 of the IRPR) where they have a work permit, but intended to work in violation of its conditions. It appears that there is no jurisprudence directly on point.

Section 8 of the IRPR is short and not ambiguous. I find it easy to understand. It simply requires that a foreign national who enters Canada to work must first obtain a work permit. The Minister’s Delegate’s decision, as well as the respondent’s position, essentially reads in a requirement that is not included in section 8: that the work to be done under the work permit be in compliance with the conditions thereof.

Certainly, violations of the terms of a work permit are of concern, and there are measures that can be taken against the holder of a work permit who ignores the conditions of the permit. However, there is no indication that section 8 was intended to address such a situation. A reading of section 8 in its grammatical and ordinary sense harmoniously with the scheme and object of the IRPA and the intention of Parliament does not permit this.

In my view, it was unreasonable for the Minister’s Delegate to read in a requirement, especially in view of the important consequences for the applicant of the Exclusion Order. In order to conclude that violation of the conditions of a work permit could lead to an exclusion order under section 8 of the IRPR, that provision would have to be more explicit.


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