Inadmissibility Flashcards
Two differences between FN and PR who are found to be inadmissible.
- the right of appeal
- certain inadmissibility sections apply to FN only and not to PR
Grounds for Inadmissibility
- Security (s. 34)
- Human or Internation Rights Violations (s. 35)
- Criminality and serious criminality (s. 36)
- Organized Criminality (s. 37)
- healt grounds (s. 38)
- Financial reasons - inability to provide for oneself or dependants (s.39)
- misrepresentation (s. 40)
- Cessation of refugee protection (s. 40.1)
- Failure to Comply with IRPA (s. 41)
- inadmissible family member (s. 42)
2 Conditions that must be met for someone to enter and remain in Canada.
- obtain permission to enter Canada as a Temporary or Permanent Resident
- Satisfy a CBSA officer that they are not inadmissible
Rights to Enter Canada
Canadian Citizens and Registered Indians:
- must prove their status (IRPA s. 19(1)) and
- have a right to enter and remain in Canada
Permanent Residents
- must prove PR status
- have a right to enter and remaind in Canada subject to conditions
- may lose PR status and be removed if they lose for inadmissibility
Temporary Resident
- are authorized to enter Canada and stayon a temp baisis
s. 34 - Security Risk
There are two types of determinations that makes a person inadmissible on these grounds
- an IRB determination, based on the findings
- Canadian Court decision under the Criminal Court
According to IRCC’s policy guidance, terrorist acts can be
- committed against persons and poperty
- isolated incidents
- committed in times of war or peace
s. 35
Human or International Rights Violations
- because of the seriousness this is excluded from all other exclusions
s. 15 is used to determine inadmissibility - may ask for minister relief
Ezokoa v the SCC, determined that there is a test for determination: requires that the applicant made a volunary, knowing and significant contribution to the crime or criminal purpose of the group
A security certificate issued against a person can also be used as a conclusive proof that the person is in admissible for violating human or international rights.
s. 36 & s. 37
Criminality & Organized Criminality
- must do the test of eqivalency to see if the crime outside of Canada what it would be considered as in Canada
- If the invidiual was acquitted or the Court had determined the person as “not guilty” then it should not be taken as prime facie evidence and must consider all the factors of the case and evaluate if it was committed in Canada if it would have been prosecuted.
- must be reasonable grounds or a determination of balance of probability that the FN had committed the act.
Where there are charges that are pending than the officer may likely wait until the outcome of the case to make a decision
s. 36
Serious Criminality
3 categories
Convicted in Canada : The offence is an offence that is punishable by a term of imprisonment of a minimumof 10 years or a term of imprisonment of 6 months was imposed
Convicted Outside of Canada: if this was an offence committed in Canada would have been punishable by a term of a max of 10 years of imprisonment
Committed an act outisde of Canada: if committed in Canada, was an act that is punishmable by a term of a minimum of 10 years
If PR or FN is convicted of a serious crime while in Canada the court refers to IRCC and CBSA, will then lead to a referral for a hearing before the IRB and may lead to deporation
Exemption: recieved a record suspension or been deemed as rehabilitated
s. 36 (2)
Criminality
3 types of Offences
Summary Conviction: less serious offences, if convicted, liable to a fine of, not exceeding $5000, a term of imprisonment not exceeding 6 months
Indictable offences: carries a penalty of imprisonment up to life
Hybrid Offence: the Criminal Code outlines the penalties for proceeding by way of summary or by way of indictable offence, but always considered to be an indictable, even those it was prosecuted summarily
4 Subcategories
- Convicted in Canada
- Convicted outside of Canada
- Committed an act outside of Canada
- Committed an act on entering Canada
Exemptions- s. 36
- Record Suspension
- Acquittal
- Deemed Rehabilitated; 10 years have lapsed since the sentence was imposed and completed, and no other convictions and all conditions in s. 18 (2) IRP have been met
- Rehabilitated, to be eligible, the person must show that at least 5 years have passed since the completion of the sentence imposed and application must be submitted to the appropriate IRCC office
*** Excemption
If not eligible for deemed rehab or rehab because not enough time has lapsed; may submit a request for a TRP before entry to Canada, it will be issued in extraordinary circumstances
s. 37
Organized Criminality
A refugee claimant whos only involvement with a criminal organization was to travel to Canada with the assitance of the organization to make the refugee claim is exempt from inadmissibility (IRPA s. 37(2))
* may ask for Ministerial Relief (IRPA s. 42.1) and must satisfy the minister that their entry to Canda would not be contrary to national interest.
s. 38
Health Grounds
- On FN can be deemed as inadmissible based on health grounds
- PR cannot be revoked based on health conditions developed after
FN that applies who suffers from a health condition may be inadmissible if the condition
- is likely to be a dnager to public health
- likely to be a danger to public safety, such as a mental condition
- might reasonably be expected to cause excessive demand on health or social services
A person who is seeking medical treatment may overcome inadmissibilikty and render himself admissible to Canada provided that it can be shown that his medical treatment will not place excessive demand on health services
- if the officer finds the applicant to be inadmissible, the officer is required to issue a procedural fairness letter to so that the applicant has the opportunity to reply and provide further docs within a reasonable period of time, before a final decision is rendered
- the applicant can also submit a declaration of ability and intent to overcome excessive demand by mitigating the excessive demand
s. 39
Financial Reasons
A FN who applies for tempoary or PR must satisfy the visa officer of their ability to be self-sufficient and to support any dependents in Canada
** Exemption
Conventional Refugee and protected persons who apply for PR in Canada are exempted from being found inadmissible on fiancial grounds
s. 40
Misrepresentation
An omission is also included as a misrepresentation, but the information it pertains must be “material” to the point where it can induce an error in the administration of the Act.
Excemption: where applicants can show that they honestly and resonably believed that they were not withholding material information
Indirect Misrepresentation: when a third party omits some information for the applicant
** Excemption: s. 22 IPRR, do not apply to protected persons who have claimed refugee protection, providing that the disposition of their claim is still pending., or those family members of the protected persons (in Canada or abroad)
Inadmissibility for misrepresentation; continues to be applicable for a two year period
s. 40.1
Cessation of Refugee Protection
When an applicant’s refugee protection “ceases” they will become inadmissible
Requires the Minister to make an application to RPD (s. 108 IRPA)
RPD decision is final, unless it is judicially reviewed by Federal Court.
s. 222 - 227 IRPR
Removal Orders
Departure Order: the person must leave within 30 days and must confirm their departure with the CBSA, it will become a deporation order unless the person reports to CBSA
Exclusion Order: cannot return to canada within the specified period of time, however, if it was issued for misrepresentation then they may not come back to Canada for a period of five years unless there is an ARC
- must obtain a Certificate of Departure from CBSA
Deportation Order: the person is permanently barred from returning to Canada unless an ARC has been obtained
- may also be issued by an officer to a person that had returned to Canada who has been removed in the past within the 2 year period and without consent (in the case of misrep) for all other it would be for one year period
s. 49
Removal Orders - In Force
removal order comes in force the later of the two dates
- the day the removal order is made and there is no right to appeal
- the day the appeal expires if there is a right to appeal and no appeal was made
- the day of the final appeal decision if there was an appeal
R240 : the removal order is considered to be encforced when
a. appears before an officer at a POE to have their departure from Canada verified
b. obtain a certificate of departure
c. departs from Canada and
d. has been authorized to enter, other than for purposes of transit, their country of destination
Can also have removal order enforce overseas also
Standard of Proof for Inadmissibility
PR: balance of probabilities; higher standard
FN: reasonable grounds to believe
Committing on Entering Canada
- If the applicant is found to be inadmissible for having an offence on entering Canada, the personal is allowed to withdraw their application and leave Can.
- The applicant cannot at some future date or time be viewed as being inadmissible for the past “committment on entering Canada offence
s 44
Inadmissibility Report
s. 41
Non-Compliance of Act
Must be used in conjunction with a section in the Act or Reg, never to be used as a stand alone allegation
The intention is to remove anybody that is not respecting their obligation, condition or requirements under the Act or the REg.
The intent should be considered when the Officer is deciding on the enforcement that is to be taken.
PR :
- if they fail to comply with PR obigation of A28
- or they fail to comply with any conditions imposed under the Reg
FN:
- through an act or omission that contravenes, directly or indirectly, a provision of the Act
Granting Relief of Inadmissibility
Four ways to grant relieft to an inadmissible person
- Pardon by the National Parol Board
- Rehabilitation - Minister of C&I
- Passage of Time
- National Interest = Minister of PSEP
How to overcome Criminal Inadmissibility
Convictions / offences outside Canada
If you were convicted of or committed a criminal offence outside Canada, you may overcome this criminal inadmissibility
- by applying for rehabilitation, or
- you may be deemed to have been rehabilitated if at least ten years have passed since you completed the sentence imposed upon you, or since you committed the offence, if the offence is one that would, in Canada, be an indictable offence punishable by a maximum term of imprisonment of less than ten years.
If the offence is one that would, in Canada, be prosecuted summarily, and if you were convicted for two (2) or more such offences, the period for rehabilitation is at least five (5) years after the sentences imposed were served or are to be served.
Convictions / offences in Canada
If you have a criminal conviction in Canada, you must seek a record suspension (formerly a pardon) from the Parole Board of Canada (PBC) before you will be admissible to Canada.
In order to be considered for a record suspension under the Criminal Records Act, a specified period of time must pass after the end of the sentence imposed. The sentence may have been payment of a fine, period of probation, or imprisonment.
If you have had two (2) or more summary convictions in Canada, you may no longer be inadmissible if:
- at least five (5) years have passed since all sentences imposed were served or to be served,
- you have had no other convictions.
Convictions in Canada and convictions or offences outside of Canada
If you have convictions in Canada and convictions or offences outside of Canada, both an approval of rehabilitation and a pardon are required to overcome your inadmissibility.
**Your request for rehabilitation cannot be made until you have first obtained a record suspension, except if you have only one (1) summary conviction in Canada. In such instances, you may submit an application for rehabilitation for any convictions or offences outside Canada if you can provide evidence that you have submitted an application for a record suspension to the Parole Board of Canada (PBC).
Eligbility for Rehabilitation
If you were convicted of an offence outside Canada that, if committed in Canada, would be an indictable offence punishable by a maximum term of imprisonment of less than ten years:
You are deemed rehabilitated: at least ten years after completion of the sentence imposed.
You are eligible to apply for rehabilitation: five (5) years after completion of the sentence imposed.
If you committed an offence outside Canada that, if committed in Canada, would be an indictable offence punishable by a maximum term of imprisonment of less than ten years:
You are deemed rehabilitated: at least ten years after commission of the offence.
You are eligible to apply for rehabilitation: five (5) years after commission of the offence.
If you were convicted of an offence or you committed an offence outside Canada that, if committed in Canada, would be punishable by a maximum term of imprisonment of ten years or more:
You are deemed rehabilitated: not applicable.
You are eligible to apply for rehabilitation: five (5) years from completion of the sentence or commission of the offence.
If you were convicted for two (2) or more offences outside Canada that, if committed in Canada, would constitute summary conviction offences:
You are deemed rehabilitated: at least five (5) years after the sentences imposed were served or to be served.
You are eligible to apply for rehabilitation: not applicable.
Coming to Canada without the Approval of Rehabilitation
If you need to come to Canada but cannot apply for rehabilitation because five (5) years have not passed since the end of the sentence imposed or you are not eligible to apply for a record suspension (formerly a pardon) for convictions in Canada, you may request special permission to enter or remain in Canada.
After reviewing the application and the nature of the offences, number of offences, when they happened and your current situation, the officer will advise you according to the following:
At Canadian visa offices outside of Canada
- advise that they do not recommend that you travel to Canada; or
- advise that you could apply for special permission (temporary resident’s permit) to enter Canada.
At Ports of Entry (airport, marine or land)
- advise that you will not be allowed to enter Canada and ask you to return immediately to your country of departure;
- take enforcement action (arrest, detention and/or removal); or
- advise that you could apply for special permission (temporary resident’s permit) to enter Canada.
In Canada
- ask
- that you leave Canada voluntarily;
- take enforcement action (arrest, detention, and/or removal from Canada); or
- advise that you could apply for special permission (temporary resident’s permit) to remain in Canada.
Calculating 5 years for Rehab
Calculate from the date where the sentence, parol or fine was served/paid in full. From the date of completion!
Applying for an ARC (Application to re-enter Canada)
When an officer assesses your application, they will consider, among other things:
- the reasons for the removal order
- the possibility that you will repeat the behaviour that caused the order to be issued
- the length of time since the order was issued
- your current situation
- the reason why you want to enter Canada.
IRB - Immigration Division
Cases of Inadmin is referred to the Immigration Division of the IRB for a decision on admissibility and removal.
Young Offenders Act
- If the FN committed a criminal offence and convicted in Canada, under the Young Offenders Act cannot be found inadmissible because it is not seen as valid
- if the FN did multiple crimes and multiple convictions, or if they were convicted as an adult and have a criminal record, they will be considered as INADMISSIBLE
Convictected as an Adult cs. convicted as a minor
