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 … Read More
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. … Read More
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 … Read More
Overview of Detention
On October 29, 2010, the Immigration and Refugee Board released Guideline 2 on Detention. The Guidelines are to assist Immigration Division members in determining whether or not to hold an individual in detention.
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 … Read More
HIV and Immigrating to Canada
Under the Immigration and Refugee Protection Act, all foreign nationals applying for permanent residency, and certain foreign nationals applying for temporary residency, are requested to undergo an immigration medical examination (“IME“) to determine if they are inadmissible on health grounds. A person will be inadmissible to Canada on health grounds if they are a danger to public health, a danger to public safety, or if they are likely to pose an excessive demand on the health and social services (“Excessive Demand“). The current policies on HIV testing exist because Citizenship and Immigration Canada (“CIC“) determined that people with HIV may pose a danger to public health. As well, based on CIC health data, migrants have at least 10 times the risk of being infected with HIV compared to the Canadian population. Finally, several high profile cases involving permanent residents who were criminally convicted for not informing their sponsor partners about their HIV positive status led to negative publicity for CIC. Indeed, the first Canadian convicted of first degree murder for having transmitted HIV to two persons who subsequently died from HIV was a former refugee. Notwithstanding the above, since CIC began introducing mandatory HIV testing in 2002, the key reason has been Excessive … Read More
Bill C-43 Comes into Force
In June 2012 I wrote about how the Conservative government had introduced Bill C-43, the Faster Removal of Foreign Criminals Act (“Bill C-43“). Amongst other things, Bill C-43 increases the penalties for misrepresentation, removes appeal rights for permanent residents who are sentenced to a length of imprisonment of six months or more, gives the Minister of Citizenship and Immigration Canada the power to let otherwise inadmissible people to Canada into the country based on his discretion, and prohibits visa officers from considering humanitarian & compassionate factors in certain scenarios. On June 19, 2013, Bill C-43 received Royal Assent. Citizenship and Immigration Canada (“CIC“) has now begun rolling out Operational Bulletins to instruct visa officers of its implications. Operational Bulletin 532 – Coming into Force of Bill C-43 – Inadmissibility on Security Grounds (“OB-532”) Subsection 34(1)(a) of the Immigration and Refugee Protection Act (“IRPA“) previously provided that a permanent resident or a foreign national is inadmissible to Canada on security grounds for: engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada IRPA 34(1)(a) has been reworded to provide that a permanent resident or a foreign national is inadmissible to Canada … Read More
RIMBits Revealed (July 2010)
The following are some excerpts from the July 2010 RIMbits. RIMbits are messages sent from National Headquarters to missions overseas. The July 2010 RIMbits on admissibility consisted of eight questions and answers or bulletins. I have reproduced three of them for free below. Please note that the questions and answers below should not be viewed as legal advice. Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in July 2010. Canadian citizen Visiting Forces Act applicant Q. We ask for your opinion on the process for a Canadian dual citizen and his family who wish to enter Canada under the Act on Visiting Forces at the request of the ________ government. The applicant and spouse currently have official _____ passports. The sons, also dual citizens, have an ordinary ____ passports stating “son of government agent.” With what documentation should the applicant and his sons travel? Obtaining proof of Canadian citizenship for the children could take 14-16 months. Also, the spouse has no status in Canada. The Foreign Worker Guide indicates that dependents of people who are in Canada under the Visiting Forces Act qualify for an open work permit. As the spouse of … Read More
RIMbits Revealed (May 2010)
The following are some excerpts from the May 2010 RIMbits. RIMbits are messages sent from National Headquarters to missions overseas. The May 2010 RIMbits on admissibility consisted of seven questions and answers. I have reproduced three of them for free below. Please note that the questions and answers below should not be viewed as legal advice. Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in May 2010. Seized Travel Document Q) We were notified by the authorities that a permanent resident travelling on a Canadian travel document has been charged with: (1) ______ (2) _____ and (3) _____. According to local authorities, the permanent resident has been released on bail with the condition that she surrender her travel document and that “Stop Orders” are placed with the Immigration exit controls at airports. We have been formally requested not to issue a new travel document to this permanent resident “until the matters have been disposed.” As the charged person is not a Canadian, the Consular Section has referred this case to us. Although she has not done so at this point, it is possible that in the near future, this permanent resident … Read More
List of Organizations where Membership can Cause Admissibility Issues
Being a member of certain organizations can result in a person being inadmissible to Canada. In going through internal CIC documents I obtained through an Access to Information and Privacy Act request, I came across a list prepared by the Canadian Embassy in Paris. It lists every court case (to 2006) involving people who were declared inadmissible to Canada for membership in an organization. Although the list is obviously dated, individuals who were members in any of the groups which appear below should contact a representative before submitting applications or making refugee claims. Country (Organization) Case Name Judgment Type of Organization Afghanistan (Air Force) Khan 1F(a) Exclusion Non-Brutal Afghanistan (Police) Mohammad 1F(a) Exclusion Non-Brutal Afghanistan (PDPA) OFUQ 1F(a) Exclusion Non-Brutal Afghanistan (Secret Police -Khad) Raduli 1F(a) Exclusion Brutal Afghanistan (Secret Police -Khad) Zadeh 1F(a) Exclusion Brutal Afghanistan (Secret Police -Khad) Moshen Insufficent Evidence for 1F(a) Brutal Afghanistan (Secret Police -Khad) Hamidi 35(1)(a) overturned Brutal Albania (Secret Police – Shik) Lalaj 1F(a) Exclusion Algeria (Police) Kiared 1F(a) Exclusion Non-Brutal Algeria (Police) Allel 1F(a) Exclusion Non-Brutal Algeria (FIS) Chougui 1F(a) Exclusion Non-Brutal Algeria (GIA) Ikhlef Security Certificate Upheld Terrorist Angola (MPLA) Goncalves Insufficent Evidence for 1F(a) Non-Brutal Angola (ANP) Januario 1F(a) Exclusion Non-Brutal Angola … Read More