Section 40 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canada’s immigration laws.
The general consequence of misrepresenting is a five-year ban from entering Canada.
Canada is very strict on misrepresentation. In Bundhel v. Canada (Citizenship and Immigration), 2014 FC 1147, for example, Mr. Bundhel had been charged and convicted with an offence, which had been overturned on appeal. Mr. Bundhel would accordingly not have been criminally inadmissible to Canada. Because of this, he put on his immigration forms that he had never been charged or arrested. When it discovered thathehad been previously charged, Citizenship and Immigration Canada wrote to him and provided him with an opportunity to explain why he misrepresented. After the immigration officer reviewed the Mr. Bundhel’s explanation that it was an innocent mistake, the officer refused the application, and declared the person inadmissible to Canada for misrepresentation. The Court wrote (citations removed):
Mr. Bundhel’s complaint that the Officer should have considered the fact that he owned-up to the problem at the first available opportunity is also unjustified. Mr. Bundhel only acknowledged the true facts when he was confronted with them. This is not equivalent to a situation where an applicant owns-up to a mistake before it is brought to light or where the file already contains the correct information. In such a case, a favourable inference is more likely to be drawn because it is suggestive of an innocent mistake and not a wilful omission. The same point is made in Uppal v Canada (Minister of Citizenship and Immigration),Read more ›
On June 18, 2015 the Secure Air Travel Act received Royal Assent. It enhanced the Passenger Protect Program, more commonly called the “no-fly list.”
The previous Conservative Government of Canada strengthened the Passenger Protect Program in response to an increase in the number of individuals travelling from Canada to participate in foreign conflicts, and in particular joining ISIS.
The Passenger Protect Program is an air passenger security program. Through it the government works with air carriers to screen commercial passenger flights to, from and within Canada, and uses measures to mitigate the threat if a listed individual attempts to board an aircraft.
The specific categories of individuals who can be impacted include (a) those who are suspected of posing a threat to transportation and (b) those who are attempting to travel abroad by air to support terrorism-related activities.
Individuals who are subject to a denial of boarding, also known as those on the Specified Persons List, can make an application to the Minister of Public Safety and Emergency Preparedness to be removed.
The government does not publish the Specified Persons List, nor does it say how many people are on the list.Read more ›
On June 1, 2018 Canada’s Minister of Immigration, Refugees and Citizenship Canada implemented a Temporary Public Policy Regarding Excessive Demand on Health and Social Services (the “Public Policy”).
Canada’s Immigration and Refugee Protection Act states that a foreign national is inadmissible to Canada on health grounds if their health condition might reasonably be expected to cause excessive demand on health or social services.
Health services are defined as any health services for which the majority of the funds are contributed by governments, including the services of family physicians, medical specialists, nurses, chiropractors and physiotherapists, laboratory services and the supply of pharmaceutical or hospital care.
Social services means any social service, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services (a) that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally and (b) for which the majority of the funding, including funding that provides direct or indirect financial support to an assisted person, is contributed by governments, either directly or through publicly-funded agencies.
Finally, excessive demand means a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following an immigration medical examination, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years.
The 2018 threshold under Canadian immigration legislation is $6,604.
The Rationale for the Change
The Minister has stated that the following was the rationale for the introduction of the Public Policy.Read more ›
Although it is uncommon for the Canada Border Services Agency to search the electronic devices of people entering Canada, it does happen. In an episode of the Borderlines Podcast, which I co-host with Peter Edelmann and Deanna Okun-Nachoff, we discussed the constitutional legalities of the CBSA searching electronic devices with Marilyn Sanford, a criminal defence attorney.
This post provides a summary of the CBSA’s actual policies on the searching of electronic devices at Canadian ports of entry. The statutory ability of officers to do so derives from s. 139(1) of Canada’s Immigration and Refugee Protection Act, which provides that an officer may search any person seeking to come into Canada and may search their luggage and personal effects, including the means of transportation that conveyed the person to Canada, if the officer believes that doing so would be relevant to their admissibility. This can include discovering possible criminal offences, unauthorized work, or a sole intention to reside permanently in Canada without having first obtained permanent resident status.
According to PRG-2015-31, officers are expected to understand and apply the following guidelines:
- Where the the admissibility of a traveller is in question, officers are justified in performing examinations of digital devices and media to discover documentary evidence pertaining to admissiblity, or a false identity.
- CBSA officers shall conduct examinations of digital devices and media with as much respect for traveller’s privacy as possible, considering that these examinations are usually more personal in nature than baggage examinations.
- Prior to examination of digital devices, officers will where possible disable wireless and internet connectivity (including by setting the phone to airplane mode) to limit the ability of the device to connect to remote hosts.
Foreign nationals who are found to be inadmissible to Canada on the basis of security (including espionage, subversion, engaging in terrorism, or being a member of a group that engages in terrorism), certain human and international rights violations, or organised crime can still visit or immigrate to Canada despite being inadmissible for such serious reasons if they satisfy the Minister of Public Safety and Emergency Preparedness (the “Minister“) that their entry to Canada is not contrary to Canada’s national interest. Such applications are referred to as “Ministerial Relief applications.”
In assessing a Ministerial Relief application, Canadian immigration law somewhat confusingly provides that the Minister “may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.”
Ministerial Relief applications, previously done under ss. 34(2), 35(2), and 37(2)(a) of Canada’s Immigration and Refugee Protection Act, and now s. 42.1, have long been problematic. As the Government of Canada noted when it introduced a standardised process on March 10, 2017:
A number of issues have contributed to inefficiencies in terms of processing requests for Ministerial relief. These include the lack of a formalized application process, the inability to close applications as appropriate in the absence of a declaration by the Minister, and voluminous applicant submissions of varying degrees of relevance to the ministerial decision-making process. Currently, there is no standardized application form and applicants may seek Ministerial relief at any time. For instance, applicants may simply indicate that they wish to be considered for Ministerial relief, providing little or no supporting explanation or documentation. This means that resources are allocated to processing applications from individuals who may not be found inadmissible and thereby not require Ministerial relief (e.g.Read more ›
Section 44 of the Immigration and Refugee Protection Act states:
Preparation of report
44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
Referral or removal order
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.
Inadmissibility reports look like the following:
The Canada Border Services Agency typically issues statutory declarations explaining the circumstances which lead to the A44 report, which look like this.
These two documents typically form the reason for the A44 report, and should be obtained by those removed in order to determine next steps, including applying for Authorization to Return to Canada or judicial review.Read more ›
Section 35 of the Immigration and Refugee Protection Act (the “IRPA“) provides that:
Human or international rights violations
35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or
(c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.
Immigration, Refugees and Citizenship Canada (“IRCC“) has produced a useful internal document summarizing the jurisprudence (up to about 2010) on the interpretation of this section, and I have reproduced it below. More recent jurisprudence can be found throughout my blog, but the IRCC document is a very useful summary.
Please note that what I have reproduced below should not be viewed as legal advice. I obtained a copy of this internal Citizenship and Immigration Canada training guide through an Access to Information Act request (the “ATI”). The reproduction of question and answer has not occurred with the affiliation of the Government of Canada,Read more ›
Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter“) provides that:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
There have been several Supreme Court of Canada (the “Supreme Court“) and Federal Court of Appeal decisions involving s. 7 of the Charter and Canadian immigration law.Read more ›
This is a companion post to my post on excessive demand here. It is more geared to lawyers and other readers of jurisprudence.Read more ›
On December 3, 2015, Don Davies, the member of Parliament for Vancouver Kingsway, introduced Bill C-214, An Act to Amend the Immigration and Refugee Protection Act (Appeals) (Bill C-214). If passed, Bill C-214 would provide a right of appeal to the Immigration Appeal Division (IAD) for prospective immigrants whose applications for permanent residency are refused because Immigration, Refugees and Citizenship Canada (IRCC) determines that they will likely represent an excessive demand on Canada’s health and social services systems.
Because Bill C-214 is a private member’s bill, it is unlikely to become law. Indeed, Davies has introduced similar bills in previous Parliamentary sessions, to no effect. However, what he is proposing is certainly worthy of discussion and debate. I hope that if he reads this post that he will consider my comments, if he ever reintroduces or amends his proposed legislation. As well, at the end of this article I will discuss another immigration issue that Davies has proposed that I hope he reintroduces soon.
Inadmissibility for Excessive Demand
Canada’s Immigration and Refugee Protection Act provides that foreign nationals are inadmissible to Canada on health grounds if their health conditions might reasonably be expected to cause an excessive demand on Canada’s health or social services.
Health services are any medical services for which the majority of funds are contributed by governments, including the services of family physicians, medical specialists, chiropractors and hospital care.
Social services include home care, residential services, social and vocational rehabilitation services that are intended to assist a person function physically, emotionally, socially, psychologically, or vocationally, and for which the majority of funding is contributed by governments. It includes special needs education for children.
An excessive demand on health or social services that results in a person being inadmissible to Canada occurs when the anticipated health and social services costs of that person during the first five (although in some cases it is ten) years after the person immigrates to Canada would likely exceed the average Canadian per capita costs.Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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