The Federal Court of Appeal in Canada (Citizenship and Immigration) v. Mudalige Don has answered the following certified question: Does the Minister’s issuance of an exclusion order pursuant to subparagraph 228(1)(c)(v) of the [Regulations] before the member of a crew subject to the exclusion order has any contact with the immigration authorities constitute a breach of procedural fairness because it deprives the foreign national of the opportunity to make a refugee claim? Background and Facts Crew members may enter Canada without temporary resident visas, work permits, or even passports. They do not need to report individually at ports of entry. Their status as crew members enables them to disembark and circulate freely so long as they remain crew members and leave on the ship on which they came. However, pursuant to s. 184(1) of the Immigration and Refugee Protection Regulations (“IRPR”), a foreign national who enters Canada as a member of a crew must leave Canada within 72 hours of ceasing to be a member of a crew. The refugee claimant in Mudalige Don was a Sri Lankan crew member aboard the foreign registered vessel M/V Lake Ontario. On November 27, 2011, the ship docked in Oshawa. On December 2, 2011, the ship’s agent filed … Read More
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