Inadmissibility – Page 2 – Steven Meurrens

Excessive Demand Jurisprudence

This is a companion post to my post on excessive demand here. It is more geared to lawyers and other readers of jurisprudence.

Providing a Right of Appeal to Medically Inadmissible Immigrants

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.

Electronic Travel Authorization

On August 1, 2015, the Government of Canada launched the Electronic Travel Authorization (“eTA”) program. The program is similar to the United States of America’s Electronic System for Travel Authorization. Implementation of the eTA program will allow Canada to pre-screen eTA-required travellers to ensure that they are admissible to Canada.

As of March 15, 2016, most foreign nationals who are exempt from the requirement to obtain a Temporary Resident Visa (“TRV“) to enter Canada will be required to obtain an eTA before they travel to Canada by air. A list of countries and territories whose citizens will need an eTA to travel to Canada can be found here. As such, it will no longer be the case that residents of these countries can simply purchase tickets and board planes to travel to Canada. Rather, an individual will be unable to board a commercial airline to Canada unless the airline first confirms that the individual possesses an eTA through the Canada Border Services Agency’s new Interactive Advance Passenger Information system.

Americans are exempted from the requirement to obtain an eTA.

The eTA is an online application on the Citizenship and Immigration Canada (“CIC“) website. Applicants will need to provide their passport details, personal details, contact information, and answer background questions regarding their health, criminal history, and travel history. CIC anticipates that it will automatically process most eTA applications within minutes. When an eTA application cannot be automatically approved, it will be referred to a CIC officer for a manual review. Officers can request additional documents, and, where required, further the application to a Canadian visa office abroad for further processing, including a possible interview.

The eTA will be valid for five years or until the applicant’s passport expires, whichever occurs sooner.

A34 – Inadmissibility for Security Reasons

Section 34 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for security reasons. It states:

Security

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

(a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests;

(b) engaging in or instigating the subversion by force of any government;

(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;

(d) being a danger to the security of Canada;

(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or

(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), (b.1) or (c).

(2) [Repealed, 2013, c. 16, s. 13]

A Citizenship and Immigration Canada 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 CIC 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, nor with the endorsement of the Government of Canada.

Non-Accompanying Dependants and Medical Exams

One of the more frustrating aspects for prospective immigrants is Citizenship and Immigration Canada’s (“CIC”) general requirement that they have their non-accompanying dependants (spouses and children) undergo medical and criminal examination. The task can be taunting for those who do not have full custody of their non-accompanying children. However, CIC’s requirement is understandable in light of Canadian immigration legislation..

Disguised Extradition

Extradition and deportation are two different things. Extradition is the official process whereby one country transfers a suspected or convicted criminal to another country, generally for prosecution. Deportation, on the other hand, is the removal of an individual from a country generally done for the purpose of achieving an immigration objective. In Roncarelli v. Duplessis, [1959] S.C.R. 121, the Supreme Court of Canada (the “SCC”) recognized that it was an abuse of process for a government department to exercise a statutory power for a reason that is unrelated to the purpose for which that power was granted. In the immigration context, it is accordingly an abuse of process for immigration authorities to initiate removal proceedings against an individual to extradite someone.

In United States v. Rogan, 2014 BCSC 116 (“Rogan”), Justice Fish summarized the principles of what is known as “disguised extradition” as follows: (Citations and paragraph numbers removed)

Deportation and extradition have fundamentally different underlying objectives. Deportation is a discretionary decision made by Canadian immigration authorities aimed at protecting the public good. Extradition, which is initiated by foreign authorities, is aimed at delivering a person sought for prosecution to that foreign authority.

A person subject to extradition proceedings has a panoply of constitutionally-enshrined protections not available to a person subject to an IRPA admissibility hearing. For example, a person ordered extradited is immune from prosecution in the requesting state for offences that have not been identified in the surrender order. By contrast, there are no restrictions on what a deported person can be prosecuted for once removed from Canada.

The essence of a “disguised extradition” claim is that removal proceedings were not instituted to pursue a valid immigration objective, but to procure, on behalf of a foreign state,

ETA Regulations Announced

On August 1, 2015, Canada will adopt an Electronic Travel Authorization (“eTA“) program that is similar to the Electronic System for Travel Authorization (“ESTA“) that the United States currently has, and the Electronic Travel Authority that Australia has. In order to minimize impacts on the travelling public and Canadian travel and tourism industries, eTA-required travellers will be exempted from this new entry requirement until March 15, 2016.

The eTA will impact nearly all travellers to Canada who do not have to apply for Temporary Resident Visas (“TRV“) to visit Canada. According to the Gazette, TRV-exempt foreign nationals, excluding U.S. citizens, represent approximately 74% of foreign nationals who arrive by air in Canada. Citizenship and Immigration Canada (“CIC“) does not currently screen these individuals for admissibility until they arrive at a Canadian port of entry (“POE“). Rather, TRV-exempt nationals are examined by the Canada Border Services Agency (“CBSA“) only upon arrival at a POE . As noted in the The Canadian Immigrant excerpt above, the eTA will change this.

However, on June 21, 2014, the Government of Canada (“GoC“) in the Canada Gazette (the “Gazette“) published proposed amendments to the Immigration and Refugee Protection Regulations (“IRPR“) pertaining to the eTA. On April 22, 2015, the final version of the IRPR amendments were published.

The proposed amendments to IRPR:

create the regulatory requirement for the eTA;
establish the eTA application procedures;
specify when an eTA expires and when it can be cancelled;
set the fee that is payable for the processing of an eTA application; and
create exemptions from the requirement to obtain an eTA.

The Regulatory Requirement for the eTA

IRPR r.

Security Certificates and the Harkat Decision

On May 14, 2014, the Supreme Court of Canada (“SCC”) issued its decision in Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37 (“Harkat“). While the SCC upheld the constitutionality of Canada’s security certificate regime, it provided detailed guidance to the Federal Court on applying the process.

Mohamed Harkat and the Security Certificate Regime

Mohamed Harkat (“Mr. Harkat”) entered Canada in 1995, and obtained refugee status shortly thereafter. In 2002, the Government of Canada detained him under a security certificate (described in more detail below). It declared that Mr. Harkat was a threat to Canada for allegedly being an al-Qaeda sleeper agent, and sought to have him declared inadmissible to Canada. During the past decade, Mr. Harkat has either been detained or living under strict conditions.

At the SCC, Mr. Harkat argued that the Immigration and Refugee Protection Act, SC 2001, c27, did not provide him a fair opportunity to defend himself against the Government of Canada’s allegations. His arguments were similar to those that Adil Charkaoui successfully made when the SCC struck down Canada’s previous security certificate regime as being unconstitutional.

The Security Certificate Regime

Canada’s security certificate regime compared to its criminal justice system offers the Government of Canada numerous procedural advantages. As the SCC noted in Harkat:

From a practical perspective, the IRPA scheme is in some respects more advantageous for the state than criminal proceedings. It has a lower standard of proof and is more protective of confidential national security information than the criminal law: ibid. As will be discussed further below, any information that would be injurious to national security or to the safety of any person is not disclosed to the named person.

Ezokola and the Test For Complicity

In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining complicity in Article 1F(a) exclusion cases.

Article 1F(a) of the 1951 Refugee Convention provides that:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

The issue that Ezokola addressed is how broad Article 1F(a) is. It if it interpreted too narrowly, then Canada risks creating safe havens for perpetrators of international crimes. If it is read too broadly, then the humanitarian aims of the 1951 Refugee Convention would be imperilled.

Why the CBSA Enforces What it Does

The Canada Border Services Agency (“CBSA“) in 2011 produced the Integrated Intelligence / Enforcement Priorities Report (the “Report“). The Report is interesting because it presents succinct descriptions of what CBSA considers to be areas of importance in the enforcement context related to immigration, and why it considers these issues important.

Practitioners may find these summaries useful in explaining to clients why we ask some of the questions that we do.

I have reproduced sections of the report below:

Residence Fraud

What Is It
Canada’s immigration and citizenship legislation both contain residency obligations which must be met in order to be granted citizenship or maintain PR status in Canada. Section 28(1) of the IRPA requires that a PR be physically present in Canada for 730 days in a 5 year period. Failure to meet the residency obligation can result in the loss of PR status and removal from Canada. Furthermore, in order to be eligible for citizenship, section 5 the Citizenship Act requires that a PR accumulate at least 3 years of residence in Canada within the 4 years immediately preceding their application.In many instances, individuals who do not meet the residency requirements under the IRPA use fraudulent documentation or other means to falsely establish their presence in Canada in order to maintain their PR status. This problem is compounded if the fraud is not detected and the person becomes eligible for citizenship based on erroneous information.

Residence Fraud is believed to involve a mix of individuals acting of their own accord and organized attempts to circumvent the provisions of the IRPA and Citizenship Act in order to gain status although the magnitude of the problem remains unknown. The incentive to commit fraud can be great, in part because maintaining PR status permits an individual to become eligible for citizenship and for various other Federal/ Provincial/Territorial (FPT) benefits.

Excessive Demand Jurisprudence

Providing a Right of Appeal to Medically Inadmissible Immigrants

Electronic Travel Authorization

A34 – Inadmissibility for Security Reasons

Non-Accompanying Dependants and Medical Exams

Disguised Extradition

ETA Regulations Announced

Security Certificates and the Harkat Decision

Ezokola and the Test For Complicity

Why the CBSA Enforces What it Does

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