Immigration and Refugee Law (Fox-Decent, Fall 2007) Dorian Needham

Immigration and Refugee Law (Fox-Decent, Fall 2007) Dorian Needham

Process and Procedure

OVERSIGHT: GENERALLY

DECISION AND/OR APPEAL

Immigration and Refugee Board (IRB)
·  Independent tribunal with three divisions
·  Addresses status decisions that will determine whether people can have PR status
Immigration Division (ID)
·  Adjudicates IO reports on inadmissibility and reviews detention orders / Immigration Appeal Division (IAD)
·  Hears appeals from refused applications for sponsorship of family class members, and some removal orders / Refugee Protection Division (RPD)
·  Determines applications for refugee status by inland refugee claimants
·  Refugee applications from abroad go through normal immigration channels

DOMESTIC REVIEW

IRB
·  Leave by right
·  Hears appeals de novo
Federal Court, Trial Division (FC-TD)
·  Judicial review (sometimes a leave requirement)
Federal Court of Appeal (FCA)
·  Appeal possible if FC-TD certifies a question of general importance
Supreme Court of Canada (SCC)
·  Appeal by leave
CONSTITUTIONAL REVIEW
·  Federal law applies through CA1867 s. 91(25) grant of power over “Naturalization and Aliens”
·  Federal law is superior to provincial law through double aspect and paramountcy (Mangat)
·  Charter s. 7 constrains procedural and substantive decision-making; applies to all those physically present in Canada (Singh)
·  “Security of the person” applies not only to freedom from physical punishment or suffering, but also to threat of such punishment (Singh)
·  Non-citizens do not have an unqualified right to enter or remain in the country (Chiarelli, Medovarski)
·  Some foreign nationals can be rendered ineligible to make a refugee claim; no absolute right to be recognised as a political refugee (Nguyen)
·  Person ineligible to make a refugee claim must be distinguished from someone about to be deported (Nguyen)
·  Section 7 security interests not considered to be engaged by deportation to a place the claimant has never been (Romans, Chiarelli, Medovarski)
·  Deportation to a country where life or freedom would be threatened is not per se unconstitutional (Suresh)
·  Determination whether the return of a person to face danger would violate principles of fundamental justice needs to be made on a case-by-case basis considering all relevant circumstances (Suresh)
ADMINISTRATIVE REVIEW
SUBSTANTIVE DECISION
Generally: The Pragmatic and Functional Approach
·  The majority if cases that come before IOs and work their way to the courts are administrative, rather than constitutional review – someone’s economic or family interests have not been recognised by an IO
·  Reasons for judicial intervention (Federal Courts Act) when board/commission/tribunal:
1.  Acted without jurisdiction
2.  Failed to observe principle of natural justice
3.  Erred in law
4.  Made an erroneous finding of fact (incomplete or incorrect information)
5.  Acted through fraud or perjury (bad faith)
6.  Acted in another way contrary to law (improper purposes)
·  Central enquiry in determining standard of review is legislative intent of the statue creating the tribunal whose decision is being reviewed: court must ask “[W]as the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board?”
·  Must consider (Pushpanathan)
1.  Privative clauses: presence of “full” or “strong” privative clause is compelling evidence that court ought to show deference; absence may imply high standard; clause permitting appeals suggests more searching standard
2.  Expertise: if tribunal constituted with particular expertise (e.g., labour panels that see the same parties all the time, are aware of workplace conditions, and know the people involved), more deference; must consider character of expertise, court’s own expertise, and nature of specific issue
3.  Purpose of act as a whole, and provision in particular: if establish not rights between parties or entitlements, but rather delicate balancing between constituencies, then more deference
4.  Nature of the problem (law, fact, mixed law and fact): if you can get rid of the facts and still have something to debate, it is a question of law; more factual means more deference
·  Standards of review (Ryan)
1.  Correctness: whether the decision maker reached the outcome that the Court would have reached if it considered the matter afresh; addresses reasons that were or could have been offered in defence of the decision
2.  Reasonableness: addresses reasoning process of the decision itself; if decision maker offers reasonable interpretation of statutory scheme, and there is an evidentiary basis, then decision will be maintained; decision is unreasonable if there is no line of analysis within given reasons that could reasonably lead tribunal from evidence before it to conclusion at which it arrived
3.  Patent Unreasonableness: totally wrong, untenable under no reasonable interpretation of the statute
Judicial Review of Discretionary Decisions
·  IRPA and IRPA Regulations give broad discretion to wide range of decision makers, rather than specifying powers precisely
·  Most important source of discretion: ministerial power under IRPA s. 25: granting PR status or exemption from any applicable criteria on H&C grounds, considering best interests of children directly affected and public policy
·  Discretion must be exercised with respect for (Baker):
1.  Statutory jurisdiction/objectives
2.  Principles of rule of law [suggests that discretion is to be exercised consistently with Canada’s international obligations]
3.  Principles of administrative law
4.  Charter principles
5.  Fundamental Canadian values
·  Baker has produced some confusion about the proper standard of review (see Suresh analysis)
PROCEDURAL FAIRNESS
·  Threshold question: whether the duty of procedural fairness is owed at all (in most cases, some duty owed)
·  Central goal: fair an open procedure, appropriate to decision being made and its statutory/institutional/social context, with opportunity for those affected to put their views forward fully and have them considered by the decision maker (Baker)
·  Procedural protections may not be engaged in every case (Suresh)
·  Duty of fairness here is more than “minimal”: must have full and fair consideration of the issues; claimant must have opportunity to present relevant evidence and have it fairly considered (Baker)
·  Oral hearing not always necessary to ensure fair hearing: meaningful participation can occur in different ways (Baker) – but where serious credibility issues are involved, fundamental justice requires oral hearing (Singh)
·  In certain circumstances, duty of procedural fairness will require the provision of a written explanation for a decision (Baker)
·  Test is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, could conclude that the decision-maker had not decided fairly (Committee for Justice and Liberty)
·  Person facing deportation must be: informed of case to be met; informed of material on which Minister is basing decision (responsive reasons); given opportunity to respond to the case; able to make written submissions after getting this information; able to challenge Minister’s information on validity grounds (Suresh)
·  Generally, deportation of a refugee when there are substantial grounds to suspect risk of torture, unconstitutionally violates s. 7 – but could be justified under ss. 7 or 1
·  Factors affecting content of the duty of fairness – this is not an exhaustive list (Baker):
1.  Nature of the decision being made and process followed in making it: more it resembles judicial decision making, the more likely it is that procedural protections closer to the trial model will be required
2.  Nature of statutory scheme and “terms of the statute pursuant to which the body operates”: e.g., greater protections needed where no appeal provided, when decision is determinative
3.  Importance of the decision to the individual(s) affected: greater impact entails more procedural protections
4.  Legitimate expectations of the person challenging the decision (does NOT create substantive rights): legitimate expectation of a procedure will entail this procedure; legitimate expectation of result will entail more extensive rights (cf. UK, where if a decision-maker makes representations of a particular outcome, that outcome is guaranteed unless there are overriding or countervailing public reasons; in Canada, no presumptive right to have a case decided in a particular manner, so thicker procedural safeguards instead)
5.  Choices of procedure made by agency itself: when statute gives decision-maker ability to choose own procedures, or when agency has expertise in determining what procedures are appropriate
·  Fox-Decent: by Suresh, the process/substance distinction is completely collapsed; the duty to give reasons is given some substantive elements (adequacy conditions); procedural safeguards should be truly procedural, and adequacy should only be addressed during substantive review after P&F approach is applied

INTERNATIONAL REVIEW

various bodies
·  UN Human Rights Committee; Optional Protocol to the International Covenant on Civil and Political Rights
·  UN Committee Against Torture, established by Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
·  Inter-American Commission on Human Rights: American Declaration of the Rights and Duties of Man (binds Canada as member of the OAS); Statute of the Inter-American Commission on Human Rights (Canada not a signatory to the Convention, but subject to some powers because of the above Declaration)
·  Reports of the Committee Against Torture
·  Threshold issue: appellant’s case not being examined elsewhere; Canada has not objected to Committee’s consideration
·  Consistent pattern of gross, flagrant or mass HR violations is not per se sufficient (absence of consistent pattern is not conclusive either), as individual must personally be in danger to trigger protection (Khan)
·  Canada need not stay its decisions pending a Committee decision (ON CA re: Ahani)

PROCESS: TEMPORARY RESIDENTS

APPLICATION

Immigration Official (IO)
·  First-level decisions on visas and applications to immigrate
·  Primary consideration: whether applicant likely to leave at end of authorised stay (often refuse countries that produce many refugees/immigrants); also considers likelihood to obey conditions, admissibility
·  Principles (De La Cruz): administrative discretion; onus on applicant to prove likely compliance; review on reasonableness
·  Visa officer must allow the applicant an opportunity to respond to his concerns (Yuan)
WORKERS
·  General rule: person must be in receipt of a job offer from a Canadian employer and must then apply for a temporary work visa
·  Work permit not needed in following situations
o  Business visitor (purchasing Canadian goods for a foreign gov’t; receiving/giving training at Canadian subsidiary; representing a foreign gov’t for selling goods)
o  Foreign representative or spouse
o  Full-time student working on-campus
o  Performing artist
o  Participant in sports activities
o  NAFTA (c. 16 provides for temporary cross-borer movement; intended to complement domestic programs; good for business travellers)
o  GATS (administered by WTO; aims to liberalise trade in services)
·  IO determines on basis of Dept of Human Resources and Social Development (HRSD) opinion whether job offer is genuine and whether employment of the foreign national is likely to have a neutral or positive economic effect on the labour market in Canada (HRSD primary mandate: protect and develop the domestic labour market)
·  HRSD confirmation most often obtained if employer has advertised across Canada, has not been able to find a qualified Canadian or PR to fill the position, and must keep and supply records
·  Exceptions to HRSD vetting when applicant
o  Will advance Canada’s policy objective
o  Will create or maintain social/cultural/economic benefits or opportunities for Canadian citizens or PRs
o  Does religious/charitable work
o  Is a sports competitors
o  Is a refugee claimant
o  Is subject to unenforceable removal order
o  Has humanitarian reasons
o  Applies under General Agreement on Trade in Services (GATS: see below)
o  Is a student TR post-graduation applying for 1-/2-year permit for work consistent with completed course of studies
o  Is the spouse/CML partner of a student TR (if conditions incl. medical requirements met)
·  Controversy: see Walzer [26], Ruhs [27]
WORKERS IN CHRONIC SHORTAGE SECTOR
·  Subject to particular “projects” (e.g., IT workers 1997, construction workers now)
·  Controversy: lower wages than Canadians would accept; job tied to particular employer; exploitation; poor conditions
LIVE-IN CAREGIVERS
·  Must have one year’s experience
·  Controversy: stressful and potentially abusive situation; exploitation; rights violations (see Macklin [28])
STUDENTS
·  Must have a study permit, with exceptions:
o  Family/private staff member of foreign representative
o  Member of visiting armed forces
o  Someone studying for 6 mo. or less (subject to Regulations s. 215 exception below)
o  Family members of some FNs
o  Minor children studying pre-school/primary/secondary level (but if outside Canada, processed as foreign students)
·  Must apply from outside Canada, with exceptions (Regulations s. 215):
o  Study permit holders
o  Those who were here for 6 mo. or less and apply to renew
o  Work permit holders
o  Subject to unenforceable removal order
o  TR permit holders
o  Applied for permit and was approved but permit not yet issued
·  Length of course into which they’re accepted is often more important consideration than number of mo. they intend to study
·  Application must be accompanied by acceptance letter (Regulations s. 219(1))
·  Must have sufficient resources for first year of studies, incl. tuition, self-maintenance, and transport (s. 220)
·  Criteria for decision: application in accordance with rules; will leave Canada at end of authorised period; not inadmissible
·  IO can decide on validity period (longer term can minimise administration later) and whether to impose conditions
VISITORS
·  Foreign nationals must apply for a temporary resident visa (TRV) prior to travelling to Canada, with exceptions (visa-exempt countries: IRPA s. 190)

ENTRY

Immigration Official (IO)
·  TRV holder must continue to meet same requirements as above at point of entry (IRPA Regulations s. 180)
Inadmissibility: IO report à minister’s delegate à IRB admissibility hearing (though minister’s delegate can sometimes act alone)
·  Assessed on “reasonable grounds to believe” standard: Mugesera [64], Chiau [66]
·  Can’t be subject to removal order, have misrepresented self, be unable to financially support self, have not complied with IRPA, have inadmissible accompanying family member
·  Health grounds: likely danger to public health; likely danger to public security; reasonable expectation of high demand – to be assessed case-by-case (Hilewitz [64])
·  Serious criminality: conviction of indictable offence or two offences, in or out of Canada, or any offence in Regulations; offence punishable by at least 10 years or foreign equivalent (difficulties with equivalence: Li [65]
·  Organised criminality: being a “member” (=”belonging to”) criminal organisation (Chiau [66])
·  Crimes against humanity: actus reus includes (1) commission of underlying enumerated act (2) as part of widespread or systematic attack (3) directed against civilian population; mens rea is (1) knowledge of attack and (2) knowledge or recklessness that own acts will comprise part of it (Mugesera [67]

RENEWAL, TERMINATION, AND/OR RESTORATION