Many people entering Canada find themselves at customs being constantly referred to secondary examination. There, they are often told by the Canada Border Services Agency (“CBSA“) that their referral to secondary examination was the mandatory result of an enforcement flag being on their file. Referral to secondary examination is time consuming. Unnecessary referrals are a burden on both travellers and CBSA. Because of this, CBSA was traditionally quite facilitative when it came to individuals requesting that an enforcement flag on their file be removed. As a supervisor from the CBSA explained to me in an e-mail, enforcement flag removal works as follows: The flag removal process doesn’t delete information, it merely closes the connection between the immigration database and the integrated system on the primary inspection line on that specific client. The process is not visible to the naked eye – I use this analogy: You get a lamp for a wedding present from “her” mom. You hate it. It’s a motion sensor lamp and it is hardwired into the wall. You can’t get rid of it, you can’t unplug it, you can’t take the light bulb out but you want the thing to stop lighting up every time you … Read More
SCC Replaces the Oakes Test with the Reasonableness Standard
Over the last several years, the Supreme Court of Canada has released numerous administrative law decisions where it found that the reasonableness standard of review should replace other standards. On March 22nd 2012, in Dore v. Burraeu du Quebec, 2012 SCC 12, the Court extended this trend to proclaiming that the reasonableness standard should replace the Oakes test when determining whether an administrative tribunal’s action which limited a right under Canada’s Charter of Rights and Freedoms could nonetheless withstand s. 1 analysis. Section 1 analysis refers to the judicial process of determining whether a government’s breach (or limitation) of a Charter right is nonetheless constitutional pursuant to s. 1 of the Charter, which states that: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. In 1985, the Supreme Court of Canada created the Oakes test for determining whether a Charter breach is reasonable and justifiable in a free and democratic society. The Oakes test first involves determining whether the government’s limitation of a Charter right is the result of a pressing and substantial objective. If it … Read More
Certified Question on Section 7 Charter Rights
Does the Immigration and Refugee Board (“IRB”) violate the provisions of section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) if it declines to postpone a hearing based on risk to life where there is a pending humanitarian and compassionate application also based on risk to life? The above question was certified by the Federal Court in Laidlow v. Canada, 2012 FC 144, released today. The Federal Court of Appeal will soon answer the question. The facts in Laidlow giving rise to the question were essentially that an individual had a pending H&C claim which was based on risk to life (availability of medical treatment reasons) at the time that he appeared for his refugee hearing. He asked that the refugee hearing be adjourned until the H&C application was determined. The IRB refused to do so, and heard the refugee claim, which was dismissed. The Court’s answer to the question was that refusing to adjourn the hearing did not breach section 7 of the Charter. Relying on Poshteh v. Canada, [2005] 3 FCR 487, and Gosselin v. Quebec (Attorney General of Canada), [2005] 4 SCR 429, the Court articulated the following principles: A finding of inadmissibility does … Read More
Removing Flags at the Port of Entry
I was recently asked where one can learn how to request that an “enforcement flag” against them be removed so that an individual does not have to go to a secondary examination every time they enter Canada. This is actually a question that comes up rather frequently, so for all those who are interested, here is the relevant section from the Immigration, Refugees and Citizenship Canada Manual: There are other ways to remove enforcement flags where the procedure outlined above is not working.
Stays of Release
Individuals who have been ordered released from detention by the Immigration and Refugee Board should not always assume that the matter is finished. The Department of Justice, at the request of its government client, can seek to overturn that decision. They can also seek a stay of the release from detention pending the resolution of the underlying application to overturn the release order. The test for a stay of release from detention is the same tripartite test found in all stay applications. In order to obtain a stay of release, the Department of Justice must show that: There is a serious issue to be tried; There is a risk of irreparable harm; and The balance of convenience favours preventing the release. There is a Serious Risk to be Tried There are many reasons why the Government of Canada might seek a judicial review of an Immigration and Refugee Board Member’s decision to release an individual from detention. One of the more common ones is where a Board Member releases someone who the Immigration and Refugee Board has already ordered an individual detained. In Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4, Justice Marshall Rothstein stated: Credibility of the individual … Read More
Interpreters and Translations
People appearing before the Immigration and Refugee Board (the “IRB“) come from all over the world, and often communicate in a language that their counsel, the hearings officers, and members do not understand. Accordingly, translators and interpreters are often used during IRB proceedings. Translators and interpreters have a very serious and important role in proceedings. Section 14 of the Charter of Rights and Freedoms provides that a party or witness to any proceeding who does not understand or speak the language in which the proceeding is conducted or who is deaf has the right to the assistance of an interpreter. This section applies to immigration and other administrative proceedings. Accordingly, the IRB and the courts take the right to proper interpretation seriously. A person appearing before the IRB has a right to an interpretation that is continuous, precise, competent, impartial, and contemporaneous. An applicant does not have the burden to show that a determinative prejudice arises from a breach of his Charter right to such interpretation. Jurisprudence Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 1161, provides a more comprehensive summary of the common law principles governing translation. These principles are that: a. The interpretation must … Read More
Judicial Review of Refugee Decisions
It is devastating for a refugee claimant than when the Refugee Protection Division rejects their claim. At that point, the person essentially has two main options: make a pre-removal risk assessment application or seek judicial review. The objective of a judicial review is to convince a judge that the Refugee Protection Division’s rejection of your claim was either unreasonable or incorrect in law. Applicants cannot introduce new evidence, and are limited to the evidence that was before the Refugee Protection Division Member that heard your case. In this post, I outline some possible grounds that you may use to successfully seek judicial review of a decision. While I strongly recommend that you hire a lawyer to conduct your judicial review, I hope that this post will provide you with some initial ideas to discuss with your counsel. Did the RPD misapply credibility during the section 97 analysis? Under section 96 of IRPA, a claimant must establish the existence of a well-founded fear of persecution tied to a 1951 Convention ground. However, under section 97 of IRPA, a claimant must show on a balance of probabilities that removal from Canada would subject them personally to specified dangers and risks. The evidence … Read More
When Will a Hearing be Necessary at a PRRA Review
On August 4, 2010, the Federal Court released its decision in Sayed v. Canada (Citizenship and Immigration), 2010 FC 796 (“Sayed“) The decision involved a discussion of many Pre-Removal Risk Assessment (“PRRA“) issues, including when a PRRA officer will be required to call a hearing. The PRRA is based on the principle of non-refoulement, and provides that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life, or risk of cruel and unusual treatment or punishment. Approved applications generally result in the same refugee protection afforded to persons whose refugee claims are approved by the Immigration and Refugee Board. PRRA is generally carried out through a paper review process. However, officers have the discretion to hold an oral hearing in certain cases, as outlined in s. 167 of the Regulations. This section states that: Hearing — prescribed factors 167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following: (a) whether there is evidence that raises a serious issue of the applicant’s credibility and is related to the factors set out in sections 96 and 97 of the Act; … Read More
Functus Officio and Citizenship Judges
On June 10, 2010, the Federal Court of Appeal (“FCA“) issued its decision in Canada (Citizenship and Immigration) v. Arif, 2010 FCA 157. The majority and concurring opinions discussed two procedural rules that will interest immigration practitioners The first issue was when a Federal Court determination regarding a Citizenship Judge’s decision can be appealed. The second was the relationship between section 399(2) of the Federal Court Rules and the principle of functus officio. When can a Federal Court Order Regarding a Citizenship Judge’s Opinion be Appealed to the Federal Court of Appeal? Section 14 of the Citizenship Act regulates appeals from Citizenship judges. Subsections 5 and 6 provide that: Appeal (5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which (a) the citizenship judge approved the application under subsection (2); or (b) notice was mailed or otherwise given under subsection (3) with respect to the application. Decision final (6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding … Read More
Section 24 of the Charter and Immigration
On June 11, 2010, the Supreme Court of Canada released its decision in R v. Conway, 2010 SCC 22 (“Conway“). Conway explored the relationship between the Charter, its remedial provisions, and administrative tribunals. Sections 24(1) and 24(2) of the Charter deal with remedies. Section 24(1) states that anyone whose Charter rights or freedoms have been infringed upon or denied may apply to a “court of competent jurisdiction” to obtain a remedy that is “appropriate and just in the circumstances.” Section 24(2) states that in those proceedings, a court can exclude evidence obtained in violation of the Charter if its admission would bring the administration of justice into disrepute. In Conway, the appellant argued that several of his Charter rights were breached when he was detained in mental and health facilities, and sought an absolute discharge as the remedy. The Ontario Review Board (the “Board“) found that it had no Charter jurisdiction to issue a s. 24(1) remedy. The Ontario Court of Appeal found that the Board lacked jurisdiction to grant an absolute discharge as a Charter remedy because granting such a discharge would, in the appellant’s case, be a significant threat to the public and frustrate the intent of Parliament. After reviewing … Read More