Part 1: Immigration and the Judiciary

Table of Contents

Basics/Introduction

Status

Citizenship

Part 1: Immigration and the Judiciary

Access to Federal Court

3 Branches of Government:

Federal Court

Federal Courts Act

Stays of Removal

Judicial Review: The Constitutional Rights of Non-Citizens

The Charter

Section 7: LLSP

Section 15: Equality

Section 1: Oaks Test

Side Notes on Rights

Judicial Review: Principles of Administrative Law

Sources of Authority:

Standard of Review: Exam Question Layout

Part 2: The Immigration Regime – Entry

Border Control and Entry

Status

Acquiring PR Status

Acquiring a PR Visa

Family Members

Humanitarian and Compassionate Grounds

Ministerial Instructions: Applications for PRs

The Economic Class

Skilled Workers

Canadian Experience Class

Provincial Nominee Program

Family Class

Definitions

“Marriage”

Bad Faith

3 Main Problems:

International Adoptions

Basics/Introduction

Status

Note: Line b/w PR and FN is a shaky

FN’s (students and temp workers) are often persuaded to stay
Focus on bringing ppl to the country and then assessing whether they should be allowed to stay

Citizenship

How do you get it?

Born in Canada
Jus soli – connection to the soil (everyone born in Canada is entitled to citizenship – w/ exceptions)
Naturalization (Flow from FN  PR  Citizen)
Born outside Canada to a Canadian parent
Jus sanguinis – law of blood
Now = if you were born outside Can to a Can cit, you cannot pass your cit on to your children unless born in Canada
International adoption – when you adopt them they are PR and they must naturalize - International adoptee’s cannot pass their cit to their children if their children born outside Canada
Why? Issue of dual nationality – being a Canadian cit means living in Canada and participating in Canadian life

Can you lose your Status?

You can give it up (Conrad Black – renunciation)
Fraud, Misrep, non-disclosure (war criminals)
Standard for removing someone: “serious reason to believe…someone is inadmissible and should be removed…”
Does it create inequality to say some ppl can lose citizenship if they lie?
Certain types of citizenship that are less secure (naturalization and born outside)

landed Immigrant
Something you can lose

Temporary Residents – all here temporarily and come here for specific purposes and will leave when it is over

Visitors
physical r/ship (they are here)
Requires a visa (some countries are visa exempt)
Temporary workers
come here to work (something visitors are not allowed to do)
Requires visa and work permit
Students
requires visa and study permit
Temporary resident permit holders (s.24 IRPA)
Inadmissible to come to Canada permanently b/c of some defect (criminal, failed medical test, no sufficient funds)
Once you have it, you are able to keep clean for a certain number of years, Canada will allow you to apply for permanent res status
We are letting them in although they do not fit the normal criteria (discretion) – humanitarian and compassionate reasons, etc.
Refugee Claims
FN who arrives in Canada and makes claim for Canada’s protection
Even after they are given status – they still have a problematic status
If Immig Refugee Board (IRB) finds the are protected they get Protected Person Status (right not to be sent back to their country) – still must apply for perm resident (can take years – cannot get credit, cannot vote, etc. – in limbo until perm resident)
Illegal’s/status-less/undocumented
snuck over the border
play a major part of Canada’s economy (not high priority to send back)
May get rid of them if there is an econ downturn – but otherwise generally allowed to stay (cheap labour)
Exist completely at gov’s discretion (at any time can be kicked out)

Part 1: Immigration and the Judiciary

Access to Federal Court

3 Branches of Government:

Citizenship and Immigration Canada (CIC) (Ministry) – bureaucracy that aims to facilitate and control the entry of individuals
Canadian Border Services Agency (CBSA) – deals with the enforcement aspect of immigration
Immigration and Refugee Board (IRB) – Quasi-judicial body which make individual determination relating to status of individuals in Canada
Immigration Division (ID) – Works with CBSA to make final decision

Admissibility hearings
Detention review hearings
Immigration Appeal Division (IAD) – deals with appeals by individuals who have a strong connection to Canada

person who wants to sponsor loved one and is turned down; persons granted permanent residency overseas; persons determined to be protected (refugees); persons out of country for long period of time) (ss.63-64)
However, just because you received a negative decision, doesn’t mean you get to appeal – very limited scope dealt with here

Can exercise equitable jurisdiction even if the law doesn’t grant an individual the right to stay – they can take all evidence into account (humanitarian/consequences) can allow person to stay
To get your appeal into this body is a “dream” – judge has full discretion
Refugee Protection Division (RPD) –determines whether an individual fits under ss.96-98

protected person, convention refugee, or have rights of person who have fear of returning to country of origin
no automatic access to this division (works with CBSA to have eligibility determined at port of entry)
Refugee Appeal Division (RAD) – if you get a negative decision after dealing with the RPD - **exists as law, but not in force** - as a result of this not being in force, more appeals go directly to the federal court ($$$)

Unhappy with the IAD decision?  Federal Court for JR of decision (supervisory body)

Federal Court

S.72 IRPA: Judicial Review of Immigration Decisions

JR is not a right
(1) JR commenced by making an application for leave to the Court
Federal Court has discretion as to whether to review a case or not (filter)

In some leg, privative clauses takes away the power to review decisions
13% of applications are granted leave (surprising given the seemingly easy test to meet)
Test for determining whether leave for JR should be granted:On application for leave one should grant such a request unless it is plain and obvious that the applicant would have no reasonable chance of succeeding (Saleh)
(2)(a)if you do have a right to appeal (at the IAD) then you must exhaust that before fed court will hear appeal
(2)(e)if your application for JR is turned down, that is the end of the line AND no appeal in relation to interlocutory judgment (prelim decision prior to ultimate decision)

Most common interlocutory judgment is to stay the removal order until ultimate decision made

S. 74: A JR (successful application) is subject to

(a)judge who grants the leave shall fix the day and place;
(b)hearing shall be no sooner than 30 days and no later than 90 days;
(c)judge shall dispose of application without delay and in a summary way; and
(d)decision of the fed court can only get to fed CA in limited circumstances – TJ must certify that there is a serious question of general importance and state the question.

Federal Courts Act

The Federal Court is a statutory creation under s. 101 of the Constitution
Does not have inherent juris – powers granted under statute that set them up

S.18 (1) Subject to s.28, the Federal Court has exclusive original jurisdiction to:

(1)(a) issue an injunction, writ of certiorari, writ of mandamus, writ of quo warranto, or grant declaratory relief
Certiorari – applying to have a previously made decision quashed
Prohibition – seeks order proscribing a future action or decision is beyond the decision maker’s jurisdiction
Mandamus – requires decision maker to positively perform a duty – will be granted only if certain conditions are met (Vaziri):
There must be a public legal duty to act;
The duty must be owed to the Applicants;
There must be a clear right to the performance of that duty, meaning that:
The Applicants have satisfied all conditions precedent; and
There must have been:
A prior demand for performance;
A reasonable time to comply with the demand, unless there was outright refusal; and
An express refusal, or an implied refusal through unreasonable delay;
No other adequate remedy is available to the Applicants;
The Order sought must be of some practical value or effect;
There is no equitable bar to the relief sought;
On a balance of convenience, mandamus should lie.
Injunction – may be sought where the applicant is challenging the authority of the decision-maker to proceed.
Example: applicant alleges that the execution of a removal order infringes his constitutional rights.
Declaratory relief – when challenging the legality of a decision.
Example: a proposed course of conduct is found to be unconstitutional.

S.18.1(3) On application for JR, the Federal court may(don’t need to specify which remedy is sought, the court has general powers):

(a)order a fed board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to door has unreasonably delayed in doing; or
(b)declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibitor restrain, a decision, or act or proceeding of a federal board, commission or other tribunal

Quashing a decision – FCA does not directly authorize the Court to substitute its views for those of the original decision maker.
However, does permit court to attach directions as it considers appropriate
SO, it allows the Court to substitute it’s views indirectly
But, court will only issue such direction in very narrow circumstances
Can be sent back for factual or legal errors – decision makers discretion how to use the law, unless they make factual error
If only one legal conclusion possible and no factual disagreements, the court will direct the decision maker to make a specific determination (Xin v. Canada)

S.2 – “federal board, commission or other tribunal” includes all officers and decision-makers who are part of the immigration regime

DINSTINCT: application for JR VS. appeal

Review = not seeking a replacement order, usually just asking to review a decision and saying it cannot be done
Appeal = looking for a replacement order

Stays of Removal

To obtain a stay, applicant must meet the TRIPARTITE TEST(Toth):

Applicant must show they have raised a serious issue to be tried;
Applicant must show they would suffer irreparable harm if no order was granted; and
Applicant must show that the balance of convenience, considering the total situation of both parties, favours the order

NOTE: The following 3 cases all appear to use Toth test, but they all look very different

No appeal of the federal court’s decision creates a lack of consistency – no constraint on how factors are applied

Omar v. Canada

Facts: Huge criminal record – application for a Pre-Removal Risk Assessment (PRRA)

Held: failed to demonstrate each branch of test

Serious issue – applicant must show that decision is unreasonable

He is seeking a review or a “danger opinion”

Irreparable Harm – cannot be based on speculation or mere possibility

Granting a stay is a dramatic step
No credible, independent, evidence to show that he would be irreparably harmed should he be returned Somalia

Balance of Convenience

Objectives of IRPA prioritize security – only in exceptional cases will a person’s interest outweigh public interest
Pulls a trick with statutory interpretation – finds that IRPA (post 2001) has a list of objectives relating to goals of immigration law

Weighs in favour of Minister in cases where the Applicant has a criminal record

Ghahremani v. Canada

Facts:Applicants (husband and wife) are scheduled to be removed to Iran. Asking Court to stay the removal. Previous refugee claims and PRRA were unsuccessful. Applying for JR of PRRA decision and seeking stay in the interim.

Serious issue – necessary to show application is not frivolous or vexatious (RJR)

does not seem to be tested on unreasonableness of decision as in Omanr
seems to be lower standard
Being sent to a country facing persecution is serious

Irreparable Harm

Doesn’t seem to be a real testing of ev put forward – just a recognition that there is a serious risk or persecution (danger of country)
If indiv is making a request for a PRRA and they would be sent out of the country before it is done would render the PRRA application moot (Perez) – suggests that in every case where indiv is trying to test PRRA decision, they should be held to meet second criteria

Balance

Uncertainty in Iran and a speedy decision

Mauricette v. Canada(dealing with s.48)

Facts: Seeking stay of removal (IRPA s.48). Enforcement Officer’s decision refusing to defer the removal of the Applicant on the basis of risk to the Applicant. Wants to challenge that it is not reasonably practicable to send her out of country

Serious issue

Not frivolous or vexatious
Higher threshold in than in Ghahremani

Irreparable Harm

Separation of child; danger from ex spouse and lack of medical care
Might be exposing them to dangers that cannot be reversed

Balance – follows once the first two are shown
An enforcement officer has no obligation to substantially review the children’s best interest before executing a removal order (Baron) – this however, seems to be what was going on here

Under H&C application – must consider the long term interests of the child
Under s.48 – take into consideration the short term interests of the child (finish the school year, not long term effect of being raised outside Canada) – narrow analysis

Removal orders

Deportation

when reason for removal is the most serious (serious criminal)

Won’t be allowed back in country without permission

Exclusion

less serious reasons for admissibility

Temporary Exclusion

usually 1 year

Departure

asking them to leave right now (does not have to be a serious reason)
Can be issued by border agent or dealt with by Immigration Division of IRB
Person is not automatically removed – before removing person from Canada, a pre-removal risk assessment (PRRA) must be issued to them

Ensures person doesn’t face serious risk of persecution, torture, or risk
Omar - “danger opinion” if deported found in PRRA
Suresh – if you are a bigger danger to Canada, even though you face danger being deported, we can still send you back

S. 25: there is the possibility at any time to make a Humanitarian and Compassionate Application (H&C)

application to not have immigration rules apply to them (removal order but I should not be sent out of country)
usually focuses on your roots in Canada and the disturbance to your life
can pay the money to get a H&C hearing
noentitlement to stay in Canada just because you have made a H&C application
No immediate decision – takes a long time – may still want to go to fed court to get a stay of removal so allowed to stay until H&C hearing

S.48: enforcement officer who is trying to get you on the plane (officer has limited amount of discretion about the exercise of order of removal)

Test of reasonable practicability – can form argument around this (ie. My children are in school, let’s wait until the end of the school year)

Division of Powers

s.95 (Immigration) (both fed and prov powers shared) and s.91(25) (Naturalization and Aliens)

paramountcy of fed law over immigration

Fed-prov agmts divide responsibility

Canada-Quebec Accord

Que has sole responsibility for selection of Que immigrants
Canada has responsibility for: determining inadmissibility, family reunification, who is a refugee (international obligation), citizenship

Judicial Review: The Constitutional Rights of Non-Citizens

The Charter

Constitutional Division of Powers

Sections 95 (Immigration) and 91(25) (Naturalization and Aliens) of The Constitution Act
Federal –Provincial agreements divide responsibilities
Note: Canada-Quebec Accord

Quebec has sole responsibility for selection of Quebec immigrants

Canada has responsibility for determining inadmissibility
Canada has sole responsibility for family reunification
Canada shall decide who is a refugee (in relation to international obligations)
Canada deals with citizenship

Does the Charter apply outside Canada?

USA: In dealing with non-citizens, US is harsh in regards to con rights (Guantanamo Bay)

Courts took view that Immigration is matter of gov prerogative – deference to US government (not subject to con challenges)

CANADA: Unless Canadian official is interfering with sovereignty of another country, there is no reason that charter should not apply – no section in charter that says it shouldn’t apply outside (s.32)

Hape (2007) – Nothing in charter giving it a territorial application, international law recognizes equal sovereignty – so start with assumption the charter does not apply outside country unless reason for applying it (NO extra-territorial application – w/ exceptions!!)
Khadr (2008) – exceptions recognized – reaching conclusion it does apply outside Canada… when there is a breach of international human rights in which Canada is participating

Amnesty Int’l v. Canada (2008) – refers to treatment of detainees – argued by Amnesty that non-citizens of Canada being shipped out by Canada to face torture have charter rights

Fed CA – Charter doesn’t apply when there is a possibility that international HR’s are breached, there must be a strong foundation

Border services Officers outside country operate alongside police officers to determine individuals who should not be allowed in country

Once refugees get on the plane and get to Canada, they have right to have claim heard
Would these individuals have a charter argument against Border Officials if they are rejected from Countries?
After Hape and Kahdr, arguably not – but have to study further to know

Does it matter? S.3(3)(d) IRPA suggests that as a matter of statutory interpretation, the Charter should be applied

S.3(3) Act is to be construed and applied in a manner that (d) ensures that decisions taken under this Act are consistent with the Charter, including its principles of equality and freedom from discrimination; … (f) complies with international HR instruments to which Canada is signatory
Promoting itself as consistent with Charter – decision makers should bear that in mind (Charter cases may not arise all that often in these cases)

Section 7: LLSP

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.