The subject unreasonable delays often arise in the immigration context. In one case that I was previously involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that he might be inadmissible to Canada for previous involvement in a group accused of terrorism. In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago. In both cases, the client asked whether the delay amounted to an abuse of process, and if so, what the remedy was. As the Federal Court of Appeal noted in Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, the Federal Court of Canada has the jurisdiction to issue a permanent stay of proceedings, and less drastic measures, as a result of an abuse of process. It is less clear whether the Immigration and Refugee Board can issue stays of proceeding for delays. In Canada (Public Safety and Emergency Preparedness) v. Najafi, 2019 FC 594, Associate Chief Justice Gagné held that it does, but certified the following question: Do the Immigration Division and the Immigration Appeal Division of the Immigration and Refugee … Read More
Federal Court Rules on Galloway Inadmissibility
The Federal Court has released its decision on the legality of the “decision” to prohibit former British MP George Galloway from entering Canada for having committed terrorism or been a member of a terrorist organization.
A Common Sense Approach to A44 Reports
Canada’s Immigration and Refugee Protection Act (the “Act“) provides that an officer who believes that a foreign national or permanent resident in Canada is inadmissible to Canada (for criminality, health, overstay, working without authorization, etc.) may prepare a report alleging the inadmissibility (commonly known as an “A44 Report“). The Act further provides that once an officer prepares an A44 Report, then the Canada Border Services Agency (“CBSA“) (the agency generally responsible for this) may commence removal proceedings, or, when necessary, refer the matter to the Immigration and Refugee Board, an independent administrative tribunal. The use of the term “may” in the Act has caused much confusion. In Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126 (“Cha“), the Federal Court of Appeal (the “FCA“) declared that the use of the word “may” did not actually grant CBSA officers broad discretion to exercise or not to exercise the power to write A44 Reports and to commence removal proceedings when it believed that someone was inadmissible to Canada. The FCA stated (citations removed for ease of reading): In Ruby v. Canada (Solicitor General) at pages 623 to 626, Létourneau J.A. reminded us that the use of the word “may” is often a signal that a margin of discretion … Read More
Misrepresentation
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. As well, s. 40(3) of the Immigration and Refugee Protection Act provides that a foreign national who is inadmissible to Canada for misrepresentation cannot apply for permanent residence during the five year bar. In Gill v. Canada (Citizenship and Immigration), 2020 FC 33 the Federal Court ruled that applications submitted during the bar are a “nullity” and as such refusals cannot be appealled to the Immigration Appeal Division. 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 … Read More
The Passenger Protect Program
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.
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 … Read More
Changes to Canada’s Excessive Demand Policy
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. The Law 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 … Read More
The CBSA Search of Electronic Devices
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 … Read More
The Right to Counsel at the Port of Entry
Section 10(b) of the Canadian Charter of Rights and Freedoms provides that: 10. Everyone has the right on arrest or detention (b) to retain and instruct counsel without delay and to be informed of that right; and In the immigration context, the right to counsel does not arise at most secondary examinations, unless the person is actually arrested or retained. As such, the Canada Border Services Agency’s (“CBSA“) general policy is not to permit counsel at examination if detention has not occurred. In practice, officers will often waive this policy if they are satisfied that legal representatives will not interfere with the examination process.
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 … Read More