IMMIGRATION & REFUGEE PROTECTION ACT

1. IMMIGRATION & REFUGEE PROTECTION ACT Inadmissibility, Detention and Removal

2. Mechanisms of Deflection/Deterrence/Interdiction • Visa requirements • Ineligibility of refugee claimants passing through safe 3rd country (s. 101(e), 102) • Carrier sanctions on transportation companies transporting undocumented or improperly documented migrants (ss.148-150)

3. Division 4: Inadmissibility Facts constituting inadmissibility include acts or omissions which there are reasonable grounds to believe have occurred, are occurring or may occur

4. Categories of inadmissibility: 34. Security 35. Violating human or int’l rights 36. Serious criminality / criminality 37. Organized criminality 38. Health grounds 39. Financial reasons 40. Misrepresentation 41. Failure to comply with Act 42. Inadmissible family member

5. Categories of inadmissibility: 34. Security 35. Violating human or int’l rights 36. Serious criminality / criminality 37. Organized criminality 38. Health grounds 39. Financial reasons 40. Misrepresentation 41. Failure to comply with Act 42. Inadmissible family member

6. Division 5: Loss of Status and Removal Officer has discretion to prepare report on inadmissibility of permanent resident or foreign national (s. 44)→ Minister →Immigration Division Where Immigration Division is not satisfied that foreign national/permanent resident is admissible, it shall make applicable removal order (deportation, exclusion, departure) in accordance with the grounds for inadmissibility, as set out in regulations

7. Types of Removal Orderss. 223-225 Departure: complies with 240(1)(a)-(c) within 30 days of enforceability Need not obtain authorization (IRPA s.52(1)) to re-enter Canada Exclusion: require s.52 authorization to re-enter Canada within one or two years of enforcement Deportation: require s.52 authorization to re-enter Canada any time

8. Enforcement of Removal Orders Conditional departure order against refugee protection claimant comes into force on latest of the following dates: • the day the claim is determined ineligible or 7 days after, depending on grounds of ineligibility • 15 days after notice of rejection by Refugee Protection Division if no appeal made, or by Refugee Appeal Division, if appeal made • 15 days after notice of abandonment/ withdrawal of claim

9. 15 days after proceedings terminated because of misrepresentation about eligibility or prior claim • conditional order is for deportation if claimant falls within certain categories of inadmissibility

10. Circumstances where removal order stayed include: • for duration of stay imposed by IAD, court of competent jurisdiction, or Minister (H&C, generalized risk in country) • until refugee claimant’s judicial review options are exhausted (time limits exceeded, leave denied, application refused), except where refugee claim is denied for ‘no credible basis’, claimant is ineligible or inadmissible for serious criminality, sojourns in US • to make determination under Pre-Removal Risk Assessment s. 96-98

11. unenforced removal order becomes void if foreign national becomes permanent resident • foreign nationals who remain in Canada without authorization will be issued exclusion orders

12. S. 44 Report forwarded to Minister who has discretion to refer to Immigration Division for admissibility hearing except where grounds of inadmissibility are: • non-compliance by permanent resident with residency obligation → departure order 228(2) • foreign national’s serious criminality/criminality in relation to a conviction → deportation order s. 228(1)(a) • foreign national’s misrepresentation in relation to vacation of refugee status → deportation order (228(1)(b)

13. foreign national’s breach of specific provisions of Act → exclusion or deportation order (depending on breach) s. 228(1)(c) • inadmissible family member → same removal order as inadmissible family member s. 228(1)(d)

14. Division 6: Detention & Releasess. 54-61 • Arrest and detention with warrant of permanent resident/foreign national who is inadmissible and danger to public or unlikely to appear at hearing • Warrantless arrest and detention of foreign national (except protected person) where: • Inadmissible and danger to public or unlikely to appear at hearing • Officer not satisfied as to identity of foreign national

15. Detention of permanent resident/ foreign national on entry to Canada • to complete examination • inadmissibility based on security grounds or violation of human/int’l rights • Discretion to release within 48 hours

16. Mandatory review of detention by Immigration Division • Within 48 hours or “without delay afterward” • Within 7 days thereafter • Review of reasons for continued detention every 30 days thereafter • Minister is taking necessary steps to inquire into reasonable suspicion of security/human rights inadmissibility OR • Minister is of opinion that ID may be established and detainee has not “reasonably cooperated with the Minister by providing relevant information” to establish ID

17. Regs. S. 244-250 list factors to be taken into account when assessing existence of grounds for detention, and continued need for detention • Flight risk • Danger to public • Person whose identity has not been established • Detention of minors is last resort, must take into account best interests of child

18. Mandatory conditions on release from detention: • Notify of change of address • Surrender passport/travel document or complete application for one (not to be divulged to country of nationality if detainee is refugee claimant) • Abide by any discretionary conditions imposed by officer or Immigration Division

19. Categories of inadmissibility: 34. Security 35. Violating human or int’l rights 36. Serious criminality / criminality 37. Organized criminality 38. Health grounds 39. Financial reasons 40. Misrepresentation 41. Failure to comply with Act 42. Inadmissible family member

20. Health Grounds (s. 37) • Inadmissibility based on danger to public health/public safety, or excessive demand on health or social services • First Draft of Regs (not in final version) • Excessive demand (s. 32) = costs in excess of average Canadian per capita health and social service costs over a period of 5-10 consecutive years after medical exam or • Demand that would add to existing waiting lists and would increase the rate of mortality/morbidity as a result of denial or delay in provision of services to citizens and permanent residents

21. Does not apply to: • spouse, common-law partner or child of sponsor s. 24 • Convention refugee or person in similar circumstances • Protected person

22. Financial Grounds (s. 39) • Protected persons exempted from inadmissibility on financial grounds s. 21

23. Misrepresentation (s. 40) Foreign national / permanent resident is inadmissible for 2 years 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 the Act” • refugee claimants and protected persons exempted s. 22 • being sponsored by person determined to be inadmissible for misrepresentation (requires Ministerial approval) • refugee whose claim has been vacated • losing citizenship status for fraud/misrepresentation

24. Non-Compliance with Act (s. 41) • foreign national inadmissible for act/omission which directly/indirectly contravenes provision of IRPA • permanent resident inadmissible for failing to comply with any conditions imposed under Regulations, or for failing to meet residency obligation

25. Inadmissible Family Member (s. 42) Foreign national is inadmissible if • accompanying family member is inadmissible • they are an accompanying family member of an inadmissible person • non-accompanying family member is inadmissible Non-accompanying family member is spouse/common law partner, dependent child in specified circumstances s. 23

26. Criminality (s. 36) • Conviction inside Canada of indictable or hybrid offence • Conviction or commission outside Canada of equivalent of indictable or hybrid offence (determined on balance of probabilities) • deemed rehabilitation 10 years after completion of sentence or commission of act s. 18

27. Conviction inside Canada of two summary offences not arising out of a single occurrence • deemed rehabilitation 5 years after sentence served • Conviction outside Canada of equivalent of 2 summary offences not arising out of single occurrence • deemed rehabilitation 5 years after sentence served • Commission “on entering Canada” of offence prescribed by regulation

28. Serious Criminality (s. 36(1)) • Conviction in Canada of an offence for which • maximum term of imprisonment ≥ 10 years or • actual sentence of > 6 months imprisonment • Conviction/commission outside Canada for offence for which maximum penalty in Canada would be ≥ 10 years (balance of probabilities)

29. 34. A permanent resident/foreign national inadmissible on security grounds for: (a)engaging in an act of espionage or act of subversion against a democratic government, institution or process as they are understood in Canada (b)engaging in or instigating the subversion by force of any government (c)engaging in terrorism (d)being a danger to the security of Canada

30. engaging in acts of violence that would or might endanger the lives or safety of persons in Canada • being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in (a), (b), or (c).

31. Terrorism (Suresh, ¶98) = • any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict • purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act

32. Membership (Suresh, ¶108, 110): • persons who are or have been associated with things directed at violence, if not violence itself • excludes those who contribute to or become members of organizations in ignorance of organization’s terrorist activities

33. Security (ss. 14-16) • Findings of fact by IRB, international criminal tribunal, Canadian court (made within their respective jurisdictions), that a foreign national or permanent resident has engaged in terrorism, war crimes, crimes against humanity, shall be conclusive

34. 35. Violation of International or Human Rights • list of inadmissible senior officials moved to regulations

35. 37. Organized Criminality (a) Immigration Act definition + (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering.

36. Division 9Protection of Information • Examination on Request by the Minister and the Solicitor General of Canada • Detention • Consideration During an Admissibility Hearing or An Immigration Appeal • Consideration During Judicial Review

37. Examination by Request of Ministers 77. (1) The Minister and the Solicitor General of Canada shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court – Trial Division, which shall make a determination under section 80.

38. No statutory trigger (cf. s. 40.1 of Immigration Act) • Effect of referral to Federal Court is to pre-empt or adjourn any proceeding under IRPA (including refugee determination) except application for Pre-Removal Risk Assessment (PRRA) under s. 112(1). (s. 77(2)) • No timelines governing judicial consideration of certificate

39. Judge shall determine whether certificate is reasonable and whether the decision on PRRA application, if any, is lawfully made (s. 80) • Effect of finding certificate to be reasonable: • Conclusive proof of inadmissibility • Certificate = removal order that is in force and may not be appealed against • Determination of judge is final and may not be appealed or judicially reviewed

40. Judge shall protect confidentiality of information upon which certificate is based and any other evidence submitted to judge if “in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person” (s. 78(b)) • similar provisions regarding in camera hearing, non-disclosure of evidence, and summary, to provisions in Immigration Act

41. Exception to principle of non-refoulement (s.115(2)) (a) inadmissible on grounds of serious criminality and, in opinion of Minister, constitutes danger to public in Canada (b) inadmissible on grounds of security/violating human or int’l rights/ organized crime, if Minister is of opinion that person should not be allowed to remain in Canada on basis of • danger to security of Canada • nature/severity of acts committed

42. Danger to security of Canada (Suresh ¶88-90) • poses serious threat • grounded in objectively reasonable suspicion based on evidence • threatened harm must be substantial • direct or indirect • direct proof of specific threat to Canada not required • must be real and serious possibility of adverse effect on Canada, (e.g. distant events that indirectly create possibility)

43. Standard of Review for Minister’s opinion under s. 115(2)(b) (Suresh ¶ 29-41) • Applies to findings of danger to national security and risk of torture or similar harm • Patently unreasonable • Arbitrary • Bad faith • Cannot be supported on evidence • Failure to consider appropriate factors • [violation of s. 7]

44. s. 7 and deportation to torture(Suresh, ¶42-79) “. . . The fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture.”

45. Procedural Requirements for s. 115 determination (Suresh ¶113-128, Ahani ¶ 24-26) • Where refugee makes prima facie case that deportation involves risk of “torture or similar abuse”, duty of fairness/s. 7 require:

46. person “must be informed of case to be met” • subject to valid reasons for reduced disclosure, material upon which Minister relies must be provided (including memos containing recommendations) • individual must have opportunity to respond, including whether continued presence will be “detrimental to national interest” [under ss. 34-37?] • assurances re: torture by state of nationality inherently unreliable • Minister must provide written reasons for decision

47. Torture (Schedule to IRPA) ARTICLE 1 OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT: 1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

48. Detention (ss. 82-85) • Warrant required for arrest/detention of permanent resident named in s. 77(1) certificate if Minister and Solicitor General have reasonable grounds to believe PR is • danger to national security • danger to safety of any person • unlikely to appear at proceeding or for removal • No warrant required required for detention of foreign national

49. Judge shall commence review of reasons for continued detention of permanent resident within 48 hours and once every 6 months thereafter • [no provision for detention review of foreign nationals]

50. Permanent resident or foreign national may apply to Minister for release to permit departure from Canada • Foreign national may apply to judge for release (with or without conditions) if 120 days have passed since s.77 certificate upheld as reasonable and judge satisfied that: • foreign national will not be removed from Canada in reasonable time • release will not pose danger to national security or safety of any person