Immigration and Refugee Law, Winter 2010, Prof. Fox-Decent
Stephanie McKinnon
INTRODUCTION ..................................................................................................................................................................... 2
GENERAL .................................................................................................................................................................................. 2
CONTEXT .................................................................................................................................................................................. 2
Present Immigration Structure................................................................................................................................................................. 2
Distributive Principles ............................................................................................................................................................................. 3
R v. Quong-Wing, [1914] 49 S.C.R. 440: CB 6-12 ............................................................................................................................. 3
Canada v. Singh; Re Munshi Singh, [1914] B.C.J. No. 116 (C.A.): CB 16-21 ................................................................................... 3
Mack v. Canada (Attorney General of Canada) (2002), 60 O.R. (3d) 737 (CA): CB 28-32 ................................................................ 3
THEORETICAL PERSPECTIVES ................................................................................................................................................... 4
Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders”: CB 55-62, 78-83................................................................... 4
Michael Walzer, “Membership”: CB 63-78 ........................................................................................................................................ 4
Donald Galloway, “Liberalism, Globalism, and Immigration”: CB 83-94 .......................................................................................... 4
Catherine Dauvergne, “Amorality and Humanitarianism in Immigration Law”: CB 94-105 .............................................................. 4
STATUS ..................................................................................................................................................................................... 4
Chen v. Canada (2001), Imm. L.R. (3d) 222 (FC-TD): CB 112-116 ................................................................................................... 5
Langner v. Canada (1995), 184 N.R. 230 (FCA): CB 124-127 ........................................................................................................... 5
Romans v. Canada (2001), 281 N.R. 367: CB 129-130 ....................................................................................................................... 6
Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711: CB 129 ........................................................ 6
Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12.......................................................................................................... 6
JUDICIAL REVIEW ................................................................................................................................................................ 7
CONSTITUTIONAL REVIEW ....................................................................................................................................................... 7
Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177: CB 154-161 ..................................................................... 7
Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711: CB 161-66 ................................................... 8
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 166-168 .......................................................... 8
ADMINISTRATIVE REVIEW ........................................................................................................................................................ 9
Of Substantive Decisions ....................................................................................................................................................................... 10
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 ..................................................................................................... 10
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982: CB 170-177 ......................................... 11
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817: CB 179-188...................................................... 12
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 166-168 ........................................................ 12
Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12........................................................................................................ 13
Of Procedural Fairness ......................................................................................................................................................................... 13
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817: CB 179-188...................................................... 13
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 166-168 ........................................................ 14
INTERNATIONAL REVIEW ....................................................................................................................................................... 15
Ahani Case, ONCA ........................................................................................................................................................................... 16
Tahir Hussain Khan v. Canada, Committee Against Torture, Communication No. 15/1994, UN Doc. A/50/44 at 46 (1995): CB
223-225.............................................................................................................................................................................................. 17
TEMPORARY RESIDENTS .................................................................................................................................................. 18
TEMPORARY WORKERS .......................................................................................................................................................... 18
Temporary Foreign Worker Programs .................................................................................................................................................. 19
Walzer, “Membership”, Spheres of Justice: CB 243-249 .................................................................................................................. 20
Ruhs, “Designing Viable and Ethical Labour Immigration Policies”: CB 250-259 .......................................................................... 20
Live-In Caregivers ................................................................................................................................................................................. 20
Macklin, “On the Inside Looking In: Foreign Domestic Workers in Canada”: CB 262-275 ............................................................. 21
STUDENTS .............................................................................................................................................................................. 21
Kim v. Canada (Minister of Citizenship and Immigration), 2004 FC 55, [2004] F.C.J. No. 42 (FC-TD): CB 285-287.................... 21
BREACH OF CONDITIONS ........................................................................................................................................................ 22
Dinh v. Canada (Minister of Citizenship and Immigration), 2003 FC 1371, Imm. L.R. (3d) 167 (FC-TD): CB 288-289 ................ 22
PERMANENT RESIDENTS .................................................................................................................................................. 22
THE ECONOMIC CLASS ........................................................................................................................................................... 22
Dogra v. Canada (Minister of Citizenship and Employment) (1999), 166 F.T.R. 264 (FC-TD): CB 307-311 .................................. 22
Sheikh v. Canada (Minister of Citizenship and Immigration), 2003 FCT 272 (FC-TD): CB 312-314 .............................................. 23
Chen v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 639 (FCA): CB 318-324............................................. 24
THE FAMILY CLASS ................................................................................................................................................................ 25
Partners ................................................................................................................................................................................................. 25
Bhatti v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 333 (IAD): CB 373-375.................................... 26
Macapagal v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 21 (IAD): CB 375-381 .............................. 26
Caron v. Canada (Minster of Citizenship and Immigration), [2005] I.A.D.D. No. 89 (IAD): CB 383-386....................................... 27
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Awwad v. Canada (Minister of Citizenship and Immigration), Docket IMM-1003-98: CB 387-390 ............................................... 28
Salh v. Canada (Minister of Employment and Immigration) (1988), 5 Imm. L.R. (2d) 114 (IAB): CB 391-394.............................. 29
Children ................................................................................................................................................................................................. 29
de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436: CB 400-419 ..................................................... 30
Sponsorship Issues ................................................................................................................................................................................. 32
Macklin, “Public Entrance/Private Member”: CB 434-440 ............................................................................................................... 33
REFUGEES .............................................................................................................................................................................. 35
THE INTERNATIONAL CONTEXT.............................................................................................................................................. 35
Safe Third Country Agreements (STCA) ................................................................................................................................................ 36
Canadian Council for Refugees v. The Queen, 2007 FC 1262, rev’d in The Queen v. Canadian Council for Refugees, 2008 FCA
229 ..................................................................................................................................................................................................... 36
REFUGEE PROTECTION IN CANADA ........................................................................................................................................ 37
Refugee Determination .......................................................................................................................................................................... 37
Definition of “Refugee” ......................................................................................................................................................................... 38
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689: CB 547-567 ........................................................................................... 38
1) OUTSIDE COUNTRY........................................................................................................................................................................ 39
Canada (Minister of Citizenship and Immigration) v. Williams, 2005 FCA 126: CB 570-572 ......................................................... 40
2) FEAR OF PERSECUTION ................................................................................................................................................................ 40
Zolfargharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 FC 540 (FCA): CB 575 .................................... 41
Hinzman . Canada (Minister of Citizenship and Immigration), [2006] FC 420 (FCTD): CB 576 ..................................................... 41
3) WELL-FOUNDED FEAR .................................................................................................................................................................. 43
4) GROUNDS OF PERSECUTION ....................................................................................................................................................... 43
Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593: CB 591-594 .................................................... 44
Islam v. Secretary of State for the Home Department; R. v. Immigration Appeal Tribunal and Another Ex Parte Shah, [1999] 2 All
E.R. 545 (HL): CB 595-600 .............................................................................................................................................................. 44
Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S, [2003] H.C.A. 71 (Aust. HC): CB 600608 ..................................................................................................................................................................................................... 45
5) UNABLE OR UNWILLING: Internal Flight Alternatives (IFA) ........................................................................................................ 46
Exclusion Clauses .................................................................................................................................................................................. 46
Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (CA): CB 620-627........................................... 47
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982: CB 641-645 ......................................... 47
Cessation Grounds ................................................................................................................................................................................. 48
Consolidated Grounds ........................................................................................................................................................................... 48
Refugee Protection Division File TA1-24763 (11 February 2003): CB 648-650 (XXXXXXXXXX) .............................................. 48
ENFORCEMENT ....................................................................................................................................................................... 49
Removal Orders ..................................................................................................................................................................................... 49
Inadmissibility........................................................................................................................................................................................ 49
Health Grounds...................................................................................................................................................................................... 50
Hilewitz v. Minister of Citizenship and Immigration, [2005] S.C.J. No. 58 (SCC): CB 676-687 ..................................................... 50
Criminality ............................................................................................................................................................................................. 50
Pre-Removal Risk Assessment ............................................................................................................................................................... 51
Varga v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1570 (QL) (FC-TD): CB 739-743 ......................... 51
Security Certificates ............................................................................................................................................................................... 51
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 748-760 ........................................................ 52
Charkaoui v. Canada (Minister of Citizenship and Immigration), [2007] 1 S.C.R. 250 .................................................................... 52
Introduction
General


The Immigration Act – (similar to Medical Acts vis a vis regulations) it is largely an enabling statute.
Many of Canada’s immigration policies/laws are inherited in substance from the UK through our constitution, and
include large grants of discretionary power (for individuals to decide immigration files).
Context
Present Immigration Structure
•Immigration Officers (IOs) of Ministry of Citizenship and Immigration Canada (CIC) make first-level decisions on visas
and applications to immigrate
•The Canada Border Services Agency (part of the Ministry of Public Safety and Emergency Preparedness) deals with
“enforcement’ (ie, removals)
•Immigration Refugee Board is an independent tribunal with three divisions:
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(1) Immigrations Division (ID): adjudicates IO reports on inadmissibility and reviews detention orders
(2) Immigration and Appeal Division (IAD): hears appeals from refused applications for sponsorship of family class
members, and some removal orders
(3) Refugee Protection Division: determines applications for refugee status by inland refugee claimants
•Subject to Judicial Review by FC-TD (sometimes a leave requirement)
•Appeal to FCA possible if FC-TD certifies a question of general importance
Distributive Principles
How to distribute scare goods over a finite group
(1)First come, first served (original appropriation through original possession)
(2)Second come, first served (settler societies)
(3)Racism – explicit immigration policy until 1967 (Quong-Wing, Munshi Singh, Mack)
(4)Pay to play – auction off places to highest bidder
(5)Future economic contribution – those likely to make a significant economic contribution get favoured (“stalwart
peasants in sheepskin coats” – Sifton; Chinese labourers; point system today)
(6)Need – those most in need get favoured (e.g., refugees)
(7)Desert – those most deserving get favoured (e.g., allied soldiers)
(8)Lottery – everyone gets an equal shot
(9)Queuing up – everyone waits their turn
(10)De facto residence (The Visitor) – foreign nationals with x years of residence get favoured
(11)Family connection – those with family members already here get favoured
(12)Cultural affinity – those from liberal, democratic (multicultural?) societies get favoured (a veiled form of racism?)
R v. Quong-Wing, [1914] 49 S.C.R. 440: CB 6-12
Facts
SK Act prohibited white women/girls from working in establishments run by a “Chinaman” – crafted to
look like a measure to protect the white women; it was racist legislation.
Issues
Is the Act ultra vires SK?
Holding
No
Reasoning
The federal power is over naturalization, but the provinces have the power to legislate as to the effects
and consequences of naturalization (Tomey Homma).
Comments
Dissent:
Would have construed Act so as to exclude naturalized British subjects (the Act would be ultra vires the
province insofar as it applied to naturalized British subjects). The power over naturalization of the
federal government should include the future status of such people.
We used to be racist. Shocking.
This is another case where immigration policy came to court as a federalism/division of powers issue.
Canada v. Singh; Re Munshi Singh, [1914] B.C.J. No. 116 (C.A.): CB 16-21
Facts
Imm Act had a continuous journey rule.
Ship arrived in Vancouver, detained for two months. Passengers denied landing, detained pending
deportation, denied habeas corpus.
Issues
Is the denial of habeas corpus constitutional?
Holding
Yes.
Reasoning
“Canada’s authority to admit immigrants of any or every race of nationality, on any terms she pleases,
is complete”
Not able to scrutinize substance of regulations, only whether or not procedure was followed.
Comments
McPhillips is really, really racist.
Mack v. Canada (Attorney General of Canada) (2002), 60 O.R. (3d) 737 (CA): CB 28-32
Facts
Chinese people entering Canada used to have to pay a head tax. Their descendants sought relief.
Issues
(1) Does ongoing stigma-based discrimination violate Chinese-Canadians’ Charter rights? (2) Does
government’s negotiation of redress with Japanese-Canadians discriminate against Chinese-Canadians
contrary to the Charter? (3) Does customary international law reveal discrimination against ChineseCanadians?
Holding
(1) No. (2) No. (3) No.
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Reasoning
Comments
Stephanie McKinnon
(1) Charter does not apply retroactively or retrospectively.
(2) Redress toward one group is not discrimination toward another.
(3) Discrimination that was constitutional at the time is not unconstitutional now (and domestic law
would have trumped anyway).
Number 2 makes me cranky.
Theoretical Perspectives
Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders”: CB 55-62, 78-83
Draws on Rawls’s two principle for governing society (based on the liberal ideal of equal moral worth of the individual):
1) Equal liberty (including freedom of movement)
2) The Difference Principle: Inequalities are okay insofar as they benefit the least well-off
So from behind the “veil of ignorance”, Carens argues that we would opt for open borders (based on risk aversion, because
where you’re born is strictly luck, like “feudal privilege”).
Michael Walzer, “Membership”: CB 63-78
Argues that states have a right to determine unilaterally entrance to the state (so he’s for closed borders) but NOT residency
(no second-class citzens).
Liberals require a duty of easy rescue, but not of heroic sacrifice.
States are, and should be, like clubs. People need to have some sense of community, need closure at some point. Otherwise
neighbourhoods would turn into “1000 petty fortresses”.
Donald Galloway, “Liberalism, Globalism, and Immigration”: CB 83-94
Argues that the state exists initally as a self-help device for individuals. Provided the state allows the individuals to fulfil the
positive duty of mutual aid and the negative duty not to interfere with the autonomy of others, then the creation of the state
cannot in and of itself create further rights. A state has no obligation to allow a person to enter and a person has no right to
claim entry, so he’s for closed borders.
He also claims this exclusion is not discriminatory.
Catherine Dauvergne, “Amorality and Humanitarianism in Immigration Law”: CB 94-105
Liberalism is “amoral” re: immigration. The fundamental question is how many people does a liberal democracy have to
take in beyond the desperately needy? The consensus is usually none. There is no standard of justice against which to judge
immigration policy. The idea is that immigration law is founded on humanitarianism not justice, and this means that it cannot
be judged unjust (ungenerous maybe, but not unjust).
Fox-Decent proposes a theory where states are the fiduciaries of the people of the world globally. Thus, they are allowed to
interfere in the lives of others but they are subject to restrictions to act in the people’s best interests. The idea is that states
are co-tenants of all the liveable states on earth with humanity as the landlord. States thus, have obligations that go beyond
their borders.
Status

Three types: citizens, permanent residents, temporary residents
Citizenship
 Can acquire citizenship by birth, by blood, and by naturalization
 Citizenship: unqualified right to enter, leave, and remain in Canada
 Persons born in Canada cannot have their citizenship revoked
 Individuals born outside of Canada to a Canadian who was also born outside of Canada: the grandchild has to apply
before age 28 to be a citizen and have a substantial connection with Canada for at least a year (ie live in Canada). If the
person doesn’t make this application they lose citizenship.
 Naturalized citizens can loose their citizenship if during the application process they engage in some misrepresentation
or conceal material facts (ie Oberlander)
 Citizenship is a privilege and it is open to Parliament to take it away (Citizenship Act s. 2.5)
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Requirements for citizenship (s. 5 of the Citizenship Act): Resident in Canada for 3 of 4 years. One branch of the case
law suggests you have to be physically present, but most case law looks at whether there is a “substantial connection”
(ie enough for the person to have become “Canadianized”).
Chen v. Canada (2001), Imm. L.R. (3d) 222 (FC-TD): CB 112-116
Facts
C applied for citizenship, but was 452 days short of the required 1095 days under the Citizenship Act
Issues
Does Chen merit citizenship?
Holding
No.
Reasoning
 Did not maintain sufficient ties with Canada during absences to have those absences count as
periods of residence
 Purpose of residency requirements is to ensure that permanent residents become
“Canadianised”
 Sentimentality shouldn’t void residency requirements; shouldn’t pay attention to things like bank
accounts, furniture, etc.
 Citizenship Judge accounted for all relevant evidence and gave adequate reasons
 Two conflicting theories of assessing residency requirements, depending on whether absence from
Canada can count (Koo) or not (Pourghasemi)
 In the meanwhile, will stick with three-years-in-Canada approach  C fails
 Articulates criteria below for assessing absences from Canada
 Whichever test is used, because his absence was so frequent and such a priority that he fails
regardless of which test is used
Criteria for assessing residency requirements in light of absence (from Koo)
 Physical presence in Canada prior to recent absences
 Residency of immediate family and dependents
 Pattern of return to Canada indicating returning home rather than visiting
 Extent of physical absences
 Absence caused by temporary situation (study, employment, etc.)
 Quality of the connection with Canada (more substantial than with other countries)
Comments
Langner v. Canada (1995), 184 N.R. 230 (FCA): CB 124-127
Facts
 L couple came to Canada to claim refugee status
 Had two children in Canada who became Canadian citizens
 Refugee claim rejected as not credible
 Deportation orders issued and not contested, but did not include children
Issues
Do the Canadian children exempt the parents from a deportation order?
Holding
No.
Reasoning
Decision of whether to take children with them is their decision to make in children’s best interests;
Canadian gov’t has no role, so Charter doesn’t apply
L parents have no Charter right to remain in Canada
Children have no Charter right to demand that gov’t not apply immigration laws to their parents
Children’s freedoms not at issue: if parents want to move them and family contests this, it’s a private
issue
No threat to children’s s. 7 rights
Child has no right never to be separated from its parents
Only 18+ year olds can sponsor people – but this isn’t ageism, because younger children need parents’
support and can’t fulfill sponsor duties
Comments
Pre-Baker
Permanent Residents
 Almost an unqualified right to enter Canada (but not the right to remain in Canada)
2-Step Process:
o Apply for PR visa from outside the country
 Application must be made to immigration office serving the country where applicant is residing
 Three classes: family, economic (business), Convention refugee
 Failing these (or alternatively), can apply under s. 25 on H&C grounds
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 One application can cover spouse/partner, and dependent (grand)children
 Cannot be found inadmissible through police, security, and health checks
 Any criteria in IRPA can be set aside on H&C grounds
o Examination by Immigration Officer at port of entry  permanent resident status
 Must have a PR visa
 Eligibility (job already arranged, connections, etc.)
 Admissibility (criminality, health, security)
o Some can apply from within Canada: live-in caregivers, spouse/common-law partner, permit holder, protected
persons (H&C)
Provinces may be granted power to select permanent residents who intend to reside within the province
Vast majority of people who apply from abroad are in family or business class
Romans v. Canada (2001), 281 N.R. 367: CB 129-130
Facts
 R (PR) resided in Canada since early childhood, has no establishment outside Canada, suffers from
chronic paranoid schizophrenia and lives on the street
 Family had done everything possible except get him citizenship
Issues
Would deporting R infringe some principle of fundamental justice (s. 7)?
Holding
No.
Reasoning
No PR has an unqualified right to remain in Canada. Therefore Parliament can set limits.
Because the individual was essntially beyond help and antisocial behaviour and petty crime were likely
to continue, deportation was legal.
Comments
Gist of the judgment is that R will live a crappy life wherever he goes, so why not have him live his
crappy life elsewhere?
Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711: CB 129
Reasoning
Sopinka J:
Parliament has the right to adopt an immigration policy and enact legislation prescribing conditions
under which non-citzens permitted to enter and remain in Canada.
Non-citizens have no unqualified right to remain in Canada. There are conditions imposed on
permanent residents’ rights to remain in Canada.
Deportation in and of itself does not infringe a security/liberty interest under s. 7
Comments
Reaffirmed in Medovarski (2005 SCC).
Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12
Facts
Khosa, a citizen of India, had been a landed immigrant in Canada since he was 14. When he was 20 he
was convicted of criminal negligence causing death. He had been speeding next to another car and killed
someone. Khosa did not admit he had been “street racing”. He received a conditional sentence,
expressed remorse, had not reoffended, got married, been a model citizen. Yet a removal order was still
issued. The IRB denied s. 67(1)(c) special relief.
The FCA applied the reasonableness simpliciter standard and overturned the IRB’s decision.
Issues
Should the IRB’s decision stand?
Holding
Yes.
Reasoning
Binnie J. (majority):
Applying Dunsmuir, the standard of review is reasonableness (privative clause (no statutory right of
appeal), purpose of IAD to hear a range of immigration issues, including assessment of H&C relief, IAD
had advantage of hearing and they have the expertise).
This is special, discretionary relief from valid removal order.
Para. 64: “It seems evident that this is the sort of factual dispute which should be resolved by the IAD in
the application of immigration policy, and not reweighed in the courts.”
Even if the FCA and Fish are right, and the IRB had “some kind of fixation” with the failure to admit
“racing” per se, the IRB’s outcome was within the range of reasonable outcomes. The deferential
standard means the SCC won’t interfere.
Fish J. (dissent):
Agrees that standard of review is reasonableness.
The IRB failured to show WHY the factors they used to decline relief (that he wouldn’t admit to
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“racing”) outweighed the other factors (remorseful, willing to plead guilty to dangerous driving causing
death, good chance of rehabilitation, model citizen, etc). Justice Fish found the IRB’s decision
unreasonable.
Comments
Temporary Residents (Foreign Nationals)
 Subject to removal upon expiry of visa
 More fragile status than permanent residency
 Can apply for permits, but this is not automatic (work, study, visitor)
 Generally, need to acquire a visa (and, sometimes, medical examination): usually issued for 6 mo. or 1 year, and
usually only renewable by leaving the country (biggest difference from PR visas is the fixed timeframe)
 System has become a bit more flexible with extensions (deemed to have authorisation while waiting for reply)
 Three classes may become temporary residents: visitors, workers, students
 Only becomes a temporary resident after arrival and examination in Canada
 Temporary resident permit may be cancelled at any time (visa subject to Ministerial cancellation independent of
security/criminality/etc. grounds – discretion usually not exercised, but it exists)
 After continuous residence for a specified period of time (3 or 5 years), may be entitled to become PR
 Can apply for refugee status and stay in Canada while claim being determined
Judicial Review
Constitutional Review


Division of Powers
o CA1867 s. 95 grants federal and provincial legislatures jurisdiction to legislate with regard to immigration,
though provincial law is inferior; s. 91(25) grants jurisdiction over “Naturalization and Aliens” to Parliament –
so provinces and feds. can enter into agreements
o Pre-Charter, courts offered only jurisdictional analysis
o Mangat (2001) confirmed Parliament’s superiority through double aspect and then paramountcy doctrines
o IRPA ss. 8-9 allow for federal-provincial agreements on immigration
Charter issues: Section 7
Charter s. 7. Life, liberty and security of person.
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.
o
o
Section 7 constrains procedural and substantive decision making, so challenges have focused on both
Singh (below) outlined procedural requirements for those determining refugee claims – since then, eligibility
requirements, appeal rights, and security-risk-based decisions have been scrutinised
Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177: CB 154-161
Facts
MEI determined that S and others were not Convention refugees
Immigration Appeal Board refused to allow application for redetermination of status.
Issues
Are the Immigration Act, 1976 procedures for adjudicating refugee claims contrary to Charter s. 7?
Were they entitled to an oral hearing before the Minister made his decision?
Holding
Yes. Yes. Must have an opportunity to orally report story to decision maker.
Reasoning
Legislated Process:
 Refugee would give sworn testimony as to why he was subject to well-founded fear of persecution
and couldn’t find protection in home country; Refugee Status Advisory Committee would make a
recommendation to the Minister strictly based on written submissions (refugee’s claim and a
transcript of his examination under oath), and Minister (or his delegate) would usually take the
recommendation; no guarantee of an oral hearing
 Refugee could then appeal to the Immigration Appeal Board for a redetermination of status. The
IAB would reject the claim unless they were of the opinion that the claimant was more likely than
not to succeed (in establishing that he was, in fact, a refugee).
 However, at no point would the refugee get the opportunity to see the information on which the
Refugee Status Advisory Committee had made its recommendation.
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So S’s claim is that they did not have a fair opportunity to present their refugee status claims or to know
the case they had to meet.
Charter:
 s. 7 “security of the person" must encompass freedom from the threat of physical punishment or
suffering as well as freedom from such punishment itself
 “Everyone” envisioned by s. 7 includes every human being who is physically present in Canada and
by virtue of such presence amenable to Canadian law (S et al. were asserting rights of fundamental
justice in the determination of whether or not they were Convention refugees, not asserting rights as
Convention refugees—because they weren’t Convention refugees)
 So a s. 7 interest is impacted (in removing someone from Canada to a country where his life and/or
freedom may be threatened). Is it in accordance with fundamental justice? Fundamental justice
includes right to procedural fairness.
 If a serious issue of credibility is involved, fundamental justice requires that credibility to be
determined in an oral hearing.
 Fundamental justice is also incompatible with the fact that the claimant would have to prove on a
balance of probabilities that the Minister was wrong without more than the rudimentary reasons
supplied by the Minister in rejecting the claim. So an application would usually be rejected before
the refugee claimant had had an opportunity to discover the Minister's case against him in the
context of a hearing.
S. 7 infringement (security of the person). Not saved by s. 1.
Comments
Almost always the case that the credibility of the claimant is at issue in determining whether that
claimant has a well founded fear of persecution
Singh prompted Parliament to establish the IRB, including a division to hear refugee claims and another
(Immigration Appeal Division) to hear family class appeals and inadmissibility appeals
Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711: CB 161-66
Facts
Chiarelli was convicted of threatening to injure someone and drug-related offences. There was evidence
he was a member of a criminal organization.
As a result of the offences, he was declared inadmissible (for serious crimes) and a removal order was
issued. Normally he could have appealed to IAD, which would take into account all circumstances of his
case, but the Minister issued a certificate that automatically caused his appeal to be dismissed.
Issues
Did deportation without consideration of all circumstances of Chiarelli’s case violate his s.7 rights?
Holding
No.
Reasoning
Sopinka J:
 To determine the scope of fundamental principles of justice as they apply to this case, the Court
must look to principles and policies underlying immigration law.
 The most fundamental principle is that non-citizens do not have an unqualified right to enter or
remain in the country.
 Permanent residents can remain (s.4(2)) except where they fall into one of the classes in s.27(1) (e.g.
conviction of an offence for which > 5 yrs imprisonment may be imposed).
 Common to all persons falling within one of these classes is that they’ve deliberately violated an
essential condition under which they were permitted to remain in Canada.
 In such a situation, there is no breach of fundamental justice in giving practical effect to the
termination of their (conditional) right to remain in Canada.
 It is not necessary to look beyond this fact to other aggravating or mitigating circumstances.
Comments
The other issue: Procedures followed by the Security Intelligence Review Committee were not found to
be inconsistent with s.7 even though it allowed evidence to be presented in camera.
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 166-168
Facts
Suresh came to Canada from Sri Lanka (1990) as a convention refugee and applied for immigration. In
1995 the government attempted to deport him on the grounds that he was a member of Liberation Tigers
of Tamil Eelam, an organization alleged to engage in terrorist activity. Section 53 of the Immigration Act
allowed for certain classes of individuals (regarded by the minister to be a danger to the security or
public in Canada) to be deported “to a country where the person’s life or freedom would be threatened.”
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Issues
Holding
Reasoning
Stephanie McKinnon
Suresh challenged the order for his deportation.
Does s.53 of the Immigration Act violate s.7 of the Charter?
Not per se, but in this case, yes. (A new hearing was ordered)
Although “generally unconstitutional”, the government can potentially deport an individual to torture (if
it’s in accord with fundamental justice or justified under s. 1).
Section 7:
 Have to balance for example circumstances or conditions of the potential deportee, the danger that
the deportee presents to Canadians or the country’s security, and the threat of terrorism to Canada
 Principles of international law can inform an inquiry into fundamental justice
 S. 7 is impacted because the guarantee of fundamental justice applies even to deprivations of life,
liberty or security effected by actors other than our government, if there is a sufficient causal
connection between our government’s participation and the deprivation ultimately effected
 The legislation itself is therefore not unconstitutional, but the Minister must exercise his discretion
in a constitutional manner.
S. 7 Procedural Rights:
 A prima facie showing that there may be a substantial risk of torture on deportation engages certain
procedural safeguards.
 If the refugee establishes that torture is a real possibility, the Minister must provide the refugee with
all the relevant information and advice she intends to rely on, provide the refugee an opportunity to
address that evidence in writing, and after considering all the relevant information, issue responsive
written reasons.
 The refugee should be permitted to present evidence on BOTH whether his presence in Canada
would be detrimental to Canada, as well as on the value of the foreign government’s assurances that
the person would not be tortured.
 Note that assurances that the state won’t resort to torture are not as easily relied upon when there has
been torture in that state in the past. Assurances against torture (illegal) are not the same as
assurances that the death penalty (legal) won’t be used. Note HR record of intended country.
(See also below)
Comments
The lack of procedural protection cannot be justified under s. 1.
The principles underlying the duty to procedural fairness are principles of fundamental justice
Administrative Review








Where an individual has received a negative decision from an immigration official or from the IRB, he may turn to the
courts to have the decision quashed or to obtain some other remedy
The individual does NOT, however, have an entitlement to judicial review of decisions authorized by the IRPA
Section 72 of the IRPA provides that judicial review proceedings in the Federal Court may be commenced by making an
“application for leave” (an application for leave may not be made until all internal appeals are exhausted)
Moreover, a decision of the Federal Court not to grant leave cannot be appealed
Section 18.1(4) of the Federal Courts Act outlines the reasons for judicial intervention. Specifically, the Federal Court
will grant relief if it is satisfied that the tribunal:
a) Acted without jurisdiction
b) Failed to observe a principal of natural justice, procedural fairness
c) Erred in law
d) Based its decision or order on an erroneous finding of fact that is made in a perverse or capricious manner
e) Acted, or failed to act, by reason of fraud or perjured evidence
f) Acted in an other way that was contrary to law (improper purposes)
Section 74(d) of the IRPA stipulates that a decision of the Federal Court to grant relief may be appealed to the Federal
Court of Appeal only if the judge has certified that a “serious question of general importance is involved”. The judge
must also state the relevant question
Judicial review goes to PROCEDURE (hearing, disclosure, impartiality, bias) which judges can review because it is not
a review which implicates the merits of the decision. Just tries to ensure that a proper procedure was in place
Judicial review also goes to SUBSTANCE: it has to do with the review of the substance of a particular decision. Courts
usually have in mind at least two things: 1) the outcome of the decision; 2) the reasons given for the decision
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Of Substantive Decisions
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190
Facts
Dunsmuir was fired with reasonable notice/pay in lieu of reasonable notice (instead of for cause). He
appealed the firing. The Labour and Employment Board-appointed adjudicator said that he could look
into whether or not the firing was really for cause. The government had the decision judicially reviewed.
Issues
What is the standard of review?
Holding
The standard of reasonableness applied on the issue of statutory interpretation.
While the question of whether the combined effect of ss. 97(2.1) and 100.1 of the PSLRA permits the
adjudicator to inquire into the employer’s reason for dismissing an employee with notice or pay in lieu of
notice is a question of law, it is not one that is of central importance to the legal system and outside the
specialized expertise of the adjudicator, who was in fact interpreting his enabling statute. Furthermore, s.
101(1) of the PSLRA includes a full privative clause, and the nature of the regime favours the standard of
reasonableness. Here, the adjudicator’s interpretation of the law was unreasonable and his decision
does not fall within the range of acceptable outcomes that are defensible in respect of the facts and the
law.
Reasoning
Dunsmuir – “Standard of Review” Analysis
1. Consider prior jurisprudence (paras. 54, 57, 62): does it point to reasonableness or correctness?
2. Reasonableness is the presumptive standard if (paras. 53 - 55):
a) the question is one of fact;
b) the question is one of policy or discretion;
c) the question is one where the legal and factual issues are intertwined and cannot be
readily separated [i.e., questions of mixed fact and law, such as questions about
remedies];
d) the question is one of law but NOT a question of “central importance to the legal
system as a whole and outside the adjudicator’s specialized area of expertise” AND
there is a privative clause AND there is a discrete and special administrative regime in
which the decision maker has special expertise (e.g., labour relations).*
3. Correctness is the presumptive standard if the question is one of law AND (paras. 58 – 61):
a) the question is constitutional (division of powers, Charter);
b) the question is one of drawing “jurisdictional lines between two or more competing
specialized tribunals”;
c) the question is of “central importance to the legal system as a whole and outside the
adjudicator’s specialized area of expertise”;*
d) the question is a “true” question of jurisdiction or vires; i.e., a question of “whether or
not the tribunal had the authority to make the inquiry” or “where the tribunal must
explicitly determine whether its statutory grant of power gives it the authority to decide
a particular matter”.*
*Characterisation of the legal question at issue will be critical in these cases: i.e., is the issue really “of
central importance to the legal system” or a “true” question of jurisdiction?
Why understanding the “pragmatic and functional” jurisprudence still matters (issues Dunsmuir
fails to resolve):
1.
2.
3.
The problems of characterisation mentioned directly above;
The role of statutory rights of appeal (no mention of them in Dumsmuir);
Decision-making contexts not anticipated by the Dunsmuir framework:
a. question of law not of central importance, no privative clause, but relative expertise;
b. question of law not of central importance, privative clause, but no relative expertise;
c. question of law not of central importance, statutory right of appeal, but relative
expertise (e.g., Southam);
d. question of fact with constitutional implications (Suresh, Multani).
The nature of review under the standard of reasonableness: is it really the same in all contexts? Is review
of a highly discretionary decision (e.g., a decision to hire a public servant) as intensive as review of a
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Comments
Stephanie McKinnon
question of law not of central importance to the legal system (e.g., a decision based on the meaning of
“material injury” in a trade dispute (National Corngrowers))?
So the long and the short of it is, determine where the issue would be based on Dunsmuir and then go
ahead and check that against the Pragmatic and Functional Approach.
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982: CB 170-177
Facts
Pushpanathan left Sri Lanka and claimed refugee status in Canada under the Immigration Act. The basis
of his claim was that he had previously been detained by the Sri Lankan authorities for his political
activities and would likely suffer persecution if returned there. This claim was never adjudicated because
Pushpanathan was granted permanent residence status and was entitled to stay in Canada on this basis.
A few months later, Pushpanathan was arrested on charges of conspiracy to traffic in a narcotic and was
convicted and sentenced to eight years in prison. A conditional deportation order was issued on the basis
that a permanent resident who has been convicted of an offence for which a sentence of more than six
months imprisonment has been imposed, may be deported.
Issues
Holding
Reasoning
Since the deportation was conditional upon a determination that the claimant is not a Convention
refugee, Pushpanathan’s claim to refugee status was referred to the Convention Refugee Determination
Division of the Immigration and Refugee Board. The Board decided that the appellant was not a
Convention refugee.
1) Is drug trafficking contrary to UN principles?
2) What is the appropriate standard of review?
1) No.
2) Pragmatic and functional approach says correctness standard
Bastarache J:
Pragmatic and functional approach (4 Factors):
1) Privative Clause (v. Statutory Right of Appeal)
 The Act foresees appeal to the FCTD but it’s governed by a leave requirement (which is not subject
to appeal). To get to the FCA, the question must be certified as one of sufficient general importance
 Full privative clauses get more deference than acts that permit appeals.
2) Expertise
 Look at the expertise of the decision maker v. the court for the particular issue. This turns on the
characterization of the issue.
 The Court characterizes this issue as a HR one (because what is at stake is the interpretation of the
HR Convention). Thus, the courts have expertise relative to the decision maker.
3) Nature/Purpose of the Statute and Provision
 While the Immigration Act as a whole could be one balancing many different policies and
constituencies, this particular provision is about the adjudication of individual cases. Adjudicative
provisions are NOT policy-setting.
4) Nature of the Problem (Question of Law or Fact?)
 General question of law, that could be interpreted even without facts, and that will stand as
precedent more likely to be a standard of correctness (as here).
Substantive Issue:
 Drug trafficking is not contrary to the purposes and principles of the UN.
 Can look to international law for interpretation of domestic law on this one.
 This provision of the Act was intended to ensure that the system could not be subverted by the Bad
Men who created the refugees in the first place.
 This does not encompass drug traffickers.
Major & Cory JJ (Dissent):
 International law grows like a living tree, drug trafficking is now against the principles of the UN
 The importance of national security would have this case on a more deferential reasonableness
standard
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Comments
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817: CB 179-188
Facts
B came to Canada illegally and stayed 11 years, having 4 children
Diagnosed with paranoid schizophrenia, applied for welfare
Ordered deported, applied for H&C exemption (might become ill again if returned to Jamaica, sole
caregiver for 2 children and supporter of 2 others, emotional hardship)
Application denied on insufficient H&C grounds; letter contained no reasons
Deportation stayed pending results of appeal
Issues
Was the “humanitarian and compassionate grounds” decision, as a substantive matter, made improperly
in this case? Was the decision in this case “unreasonable”?
Holding
Yes. Yes, the failure to give serious weight and consideration to the interests of the children constitutes
an unreasonable exercise of the discretion conferred by the section, notwithstanding the important
deference that should be given to the decision of the immigration officer.
Reasoning
L’Heureux-Dubé J:
 There’s no dichotomy between law and discretion, discretion can also be reviewed.
 Appropriate standard of review ought to be reasonableness (not patent unreasonableness).
Framework for Reviewing Discretion:
1) Objectives of the statute (discretion must be within a reasonable interpretation of the margin of
manoeuvre contemplated by the legislature)
2) Conform to the rules of administrative law (ie, the Minister can’t dictate outcomes to lower-level
decision makers)
3) Rule of Law (decision must be based in law)
4) Fundamental values of Canadian society (*note possible judicial activism here, this is the most
interesting one)
5) Charter values
Substance
Decision makers should be “alert, alive, and sensitive” to the best interests of the child in decisions like
these.
She looks to:
1) International law: Declaration of HR, the ICCPR, EU Conventions and the UN Convention on the
Rights of the Child (although never says “primary consideration”, which is the direct language from the
Convention on the Rights of the Child, because the Convention hadn’t been implemented in domestic
law—the Dissent maintains that L’H-D is doing indirectly what she can’t do directly)
2) Purposes of the Statute (Immigration Act): The Act includes consideration of families
3) Minister’s Guidelines: Not law, but “of great assistance” in determining if the exercise of Minister’s
delegate’s discretion is reasonable or not.
She infers that the best interests of the child are important in domestice law due to numbers 2 and 3.
 Children’s rights and attention to their interests, are central humanitarian and compassionate values
in Canadian society
 A reasonable exercise of the power conferred by the section requires close attention to the interests
and needs of children
 The reasons of the immigration officer show that his decision was inconsistent with the fundamental
values of Canadian society underlying the grant of discretion

Comments
“An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up
to a somewhat probing examination” (Iacobucci in Southam)
Int’l law is thus entitled to be looked to by decision makers, but it’s not clear if instructions of
international law are supposed to be dispositive
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 166-168
Facts
Government trying to deport Suresh to possible torture in Sri Lanka for his involvment in funding the
Tamil Tigers.
Issues
What standard should be adopted with respect to the Minister’s decision that a refugee constitutes a
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Holding
Reasoning
Comments
Stephanie McKinnon
danger to the security of Canada?
Patent Unreasonableness
National Security/Danger to Canada:
 The decision that Suresh is a danger to Canada is separated from the consequences of that decision
(dealt with in the Charter review part)
 The reviewing court should adopt a deferential approach to this question and should set aside the
Minister’s discretionary decision if it is patently unreasonable in the sense that it was made
arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider
the appropriate factors
 The court should NOT reweigh the factors or interfere merely because it would have come to a
different conclusion. Job of the judge is to ensure that all the relevant factors were taken into
account and that no irrelevant factros were taken into account (so look at the factors, but not the
weight the factors are given).
This is not an overturning of Baker. The framework from Baker is still valid, it’s just unclear as to how
it will be applied.
Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12
Facts
Khosa was ordered deported for having committed a criminal offence. IRB refused to use discretion to
set removal order aside.
Issues
Should the IRB’s decision stand?
Holding
Yes.
Reasoning
Binnie J. (majority):
No reweighing of factors. The IRB considered all the factors. Decision stands.
Comments
Follows Suresh. Note the legal characterization of the issue as a “reweighing” by the majority and not as
considering an irrelevant factor (whether he admitted his conduct was “street racing” per se).
Of Procedural Fairness
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817: CB 179-188
Facts
Baker was illegally in Canada. Had children here. Ordered deported.
Issues
Is there a duty of fairness? What is the content of the duty of fairness? Was Baker’s process fair?
Holding
Where important interests are at stake and it’s a specific administrative decision involving a particular
individual or discreet group, there will, generally speaking, be a common law duty of fairness. The Baker
framework is used to decide whether someone gets robust or thin procedural protections.
No, Baker’s process wasn’t fair.
Reasoning
Duty of Fairness:
 Even if the statute is silent, the process must still be procedurally fair
 The duty of fairness must be tempered with the reality of public administration (costs, etc).
Therefore, the duty of fairness will be variable depending on the circumstances.
 Individuals should have opportunity to present their case fully and fairly, and have decisions
affecting their rights, interests, or privileges made using a fair, impartial, and open process,
appropriate to the statutory, institutional, and social context.
Baker Framework:
Factors affecting content of the duty of fairness:
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
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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
(this list is not exhaustive)
Baker’s case:
 Content of the duty of fairness was not minimal (as was traditionally the case), but substantial
 The articles of the Convention (on the Rights of the Child) does NOT give rise to a legitimate
expectation on Ms. Baker’s part that procedural rights above what is normally required at common
law would be accorded, or that a positive finding would be made, or that particular criteria would be
applied. The Convention is not equivalent to a gov’t representation about how H&C applications
will be decided. (unlike Teoh case made by High Court in Australia where it found that the
Convention did create legitimate expectations otherwise the executive’s powers would be a mockery
of)
 Dube said it was not necessary for her to address the issue of whether the Convention created
legitimate expectation – so she was keeping the door open for the Convention or other international
convention to give rise to legitimate expectations (see Suresh where Canada’s ratification of CAT is
considered to give rise to a legitimate expectation)
 Oral hearings are only necessary if credibility is at stake (which is NOT the case for Baker), so a
paper hearing was good enough
 Reasons needed to be given. With a view to flexibility that is necessary when courts evaluate day-today realities of administrative agencies, the notes of Officer Lorenz were sufficient as reasons.
 She had an entitlement to an impartial decision maker. Procedural fairness requires that decisions be
made free from reasonable apprehension of bias. The test is: “What would an informed person,
viewing the matter realistically and practically…conclude? Would he think that it is more likely
than not that the decision maker, whether consciously or unconsciously, would not decide fairly?”
 The well-informed person would perceive bias when reading Officer Lorenz’s comments. His
statements give the impression that he was drawing conclusions based on fact that Baker was single
mother with several children (capital letters!) and had a mental illness. Seems that his frustration
with the “system” interfered with his duty to consider the appellant’s H&C application impartially.
Comments
Legitimate expectations is rarely used in Canada.
Note the Court’s reluctance to say that an oral hearing is always required. They are uber expensive, so
the Court doesn’t want to say it’s a right.
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 166-168
Facts
Potential deportation to torture
Issues
Are the procedures for deportation set out in the Immigration Act constitutional?
Holding
No, decisions under s.53(1) which involve risk of torture require written reasons. The reasons must be
responsive and come from the decision maker.
Reasoning
 Principles of fundamental justice (PFJ) are not identical to DoF in Baker, but are same principles
underlying that duty. Therefore, Court applies same factors from Baker to decide what procedural
protections ought to be provided (under s. 7).
Baker Framework applied:
1) Nature of the decision
Has judicial elements, Minister is engaging in fact-finding and determining if Suresh is a danger.
It’s adjudicative and not administrative (therefore thicker safeguards)
2) Role of Decision in Statutory Scheme
The decision is final within the statute, there is no appeal (therefore thicker safeguards)
3) Importance
Deportation has serious financial, emotional consequences (while not engaging security of the
person). Here, Suresh would prefer to be secure against torture (therefore thicker safeguards)
4) Legitimate Expectations
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(Not called legitimate expectations here) Given that Canada has ratified the Convention Against
Torture (CAT), one would assume that Canada intends to comply with the procedural safeguards in
the CAT (art. 3 contains a complete bar on deportation to torture “if there are substantial
grounds for believing that he would be in danger of being subjected to torture”). This requires
the chance to prove that there are “substantial grounds”, essentially an implicit requirement of a
hearing (thicker safeguards)
5) Agency Choice
Minister gave Suresh more than the no safeguards that the Act provided. He was entitled to more
than that, however.
Procedural Safeguards Required:
Does not require an oral hearing.
1) Full and Fair Disclosure: Suresh had to know and be able to respond to the case against him. He
was entitled to all the factors and considerations that the Minister has before him in making his
decision.
2) Written Submissions: Suresh had to be able to test all the claims against him
3) “Responsive” Reasons: The reasons must respond to the claim of a substantial risk of torture. The
burden is initially on the individual to show a prima facie “real” possibility of torture. Once that has
been shown, then the Minister must establish that there is NOT a substantial risk of torture. The
individual has the right to respond to the Minister’s evidence (Suresh had to be about the last person
the Minister heard from). Then the Minister decides and gives reasons. These reasons must explain
why thre’s no substantial risk of torture and why he’s a danger to Canada, taking account of all the
considerations raised by the individual. It must be the MINISTER who signs the letter (to make the
Minister accountable for his actions).
Comments
Judicial review of procedural issues is always based on a correctness standard
Institutional Independence (CB 208-210)
 Power of IRB chair to influence decision making by Board members
 Chair can issue guidelines to members, identify decisions as jurisprudential guides, “persuasive decisions” or “lead
cases”: this practice not authorised by statute; guidelines are not binding but members are expected to follow them
“unless compelling or exceptional reasons exist to depart from them”; no mention of consequences following failure to
comply
 Possible that members’ discretion is limited by someone who has not heard the case
 Questions about independence of IRB members appointed for specific terms who must seek reappointment
International Review
3 Main Conventions: ICCPR, CAT, IAHRC
The International oversight bodies have no enforcement mechanisms try to monitor compliance in 2 ways:
1) Periodic Reports
2) Direct, individual complaints
Individual complaints
 After an individual has exhausted all Canadian remedies, may be able to lodge a complaint with an international tribunal
(but only one). Domestic remedies must be exhausted first because state sovereignty will be respected as long as HR are
respected. When HR aren’t respected, then these oversight bodies are representing the people in the state on the
international stage and international law can interfere because the state has signed on to the Convention.
 Typically time limitation (usually 6 months after exhaustion of local remedies)
 The oversight body must ensure that they have jurisdiction (that the state party is a signatory and has ratified the
Convention and that the wrong alleged is encompassed by the Convention)
 Even if individual succeeds, Canadian government has frequently refused to comply with tribunal’s decision or
recommendations
 Canadian courts have determined that they are not bound by the views of international treaty bodies
 UN Human Rights Committee
o Protocol to the International Covenant on Civil and Political Rights (1976):
 7. No torture, cruel, inhuman or degrading treatment; no experimentation without consent
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


9. Liberty and security of the person; no arbitrary detention; no deprivation without procedure
established by law
 12. Right to movement within a territory and to leave any country (subject to national security, public
order, health, morals, or others’ rights); no arbitrary deprivation of right to enter own country
 13. Aliens can be expelled but (except where national security trumps) have the right to be know why
and have case reviewed
 17. No unlawful or arbitrary interference with privacy, family, home, or correspondence; protection of
law against this
 23. Family to be protected; right to marry and found a family; marriage by consent; equality
before/during/after
 24. Children entitled to protection as minors, registration, name, and nationality
 25. Citizens to have opportunity to participate in public affairs, vote, and access public service
 26. Prohibition of discrimination; equal protection against discrimination
o Optional Protocol to the International Covenant on Civil and Political Rights
 1. State party recognises competence of UNHRC to review and consider individuals’ claims of
violation of Convention rights by state party
 2. Individuals must have exhausted domestic avenues first
UN Committee Against Torture, established by Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment
o 1. Torture defined; only applies to torture by public officials or those acting in official capacity; does not
include pain or suffering incident to lawful sanctions; this is without prejudice to other, wider agreements
o 2. States to prohibit/prevent torture in own jurisdictions; exceptional circumstances are no justifications;
superior orders are no justification
o 3. No deportation to torture; States to consider others’ patterns of HR violations
o 4. States to criminalise torture
o 17. Committee established to carry out rest of Convention; 10 experts elected by states parties
o 22. States can declare recognition of Committee’s competence to receive claims by individuals of violation by a
state party; anonymous or abusive claims to be rejected; accused states have 6 months to respond; Committee to
consider all available information but reject claims already under investigation or being domestically processed;
proceedings in camera; results to be reported; provisions for coming into force
Inter-American Commission on Human Rights
o American Declaration of the Rights and Duties of Man (binds Canada as member of the OAS)
 Preamble: equality in dignity and rights; fraternity; each individual to fulfil duties and enjoy rights;
juridical duties presuppose constitutive moral duties; importance of spiritual development; culture to
be preserved, practiced, and fostered; high respect for moral conduct
 I. Life, liberty, and security of the person
 II. Equality in Declaration rights and duties without discrimination
 III. Freedom of religion (incl. manifestation and practice)
 IV. Freedom of investigation, opinion, and expression and dissemination of ideas
 V. Protection of law against abusive attacks on honour, reputation, and private and family life
 VI. Right to establish a family and have it protected
o 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)
 1. HR to include American Convention on Human Rights, American Declaration of the Rights and
Duties of Man, etc.
 20. Particular attention to be paid to rights in Declaration above; can examine communications from
and make recommendations to governments about non-State Parties
Ahani Case, ONCA
Facts
In Ahani, decided simultaneously with Suresh, the court found Ahani was informed of the Minister’s
intention to assess the risk Ahani represented to Canada and the risk to him if he returned to Iran. Ahani
made written submissions within 15 days, and the Case Management Branch of CIC subsequently
prepared a memo for the Minister and attached Ahani’s submissions. The Minister found that Ahani
faced minimal risk upon return and constituted a danger to Canada, and ordered deportation. In this case
the Court found that though the procedures did not comply with those suggested in Suresh, this did not
prejudice him and that the process Ahani was involved in were consistent with the PFJ. Ahani’s
deportation order was thus valid.
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Immigration and Refugee Law, Winter 2010, Prof. Fox-Decent
Issues
Holding
Reasoning
Comments
Stephanie McKinnon
Ahani has now filed a “communication” with the United Nations Human Rights Committee for relief
under the Optional Protocol to the International Covenant on Civil and Political Rights, which Canada
has ratified but not incorporated into its domestic law. The Committee has made an “interim measures”
request, asking that Canada stay the deportation order until it has considered Ahani’s communication.
The interim measures request is not binding and Canada will not accede to it. Instead, it intends to
deport Ahani immediately.
Does Canada have to wait for the HRC’s decision before deporting Ahani?
No.
Laskin J.A.:
1) The optional protocol is only a non-binding international human rights regime. Since there is
nothing the HRC can say that will be binding on Canada, we don’t have to hear from them before
deporting Ahani.
2) Further, although Canada has ratified the ICCPR, it hasn’t implemented it directly into its
legislation, so the ICCPR is not law and the HRC’s views would not be useful.
Justice Rosenburg dissent: it’s one thing to say that once HRC reviews a case Canada can decline its
advice. It’s another thing to say that we don’t have to submit to that committee at all. If that’s the case,
then what’s the point of signing on to the protocal in the first place.
On argument 2, the Charter is similar to the ICCPR so there’s an argument that the Charter implements
the ICCPR.
Should Canada have to wait 2 years for a decision it already knows it’s going to disregard?
Tahir Hussain Khan v. Canada, Committee Against Torture, Communication No. 15/1994, UN Doc. A/50/44 at 46
(1995): CB 223-225
Facts
K was involved in political activism (considered subversive) in Pakistan; arrest warrant was issued for
him
K claims that his deportation by Canada to Pakistan would be deportation to torture
Issues
Would the forced return of K to Pakistan violate Canada’s obligation under Torture Convention art. 3 not
to expel or return a person to another state where there are substantial grounds for believing that he
would be in danger of being subjected to torture?
Holding
Yes
Reasoning
 The existence of a consistent pattern of gross, flagrant or mass violations of human rights in a
country does not as such constitute a sufficient ground for determining that a person would be in
danger of being subjected to torture upon his return to that country—additional grounds must exist
that indicate that the individual concerned would be personally at risk
 Committee notes that Khan claims that he was already twice tortured by police in Pakistan and that
he produced a copy of an arrest warrant against him for demonstrating against the Pakistani
government, and a copy of a letter from Pakistani student group advising him that it would be
dangerous to return to Pakistan.
 Committee notes that some of the evidence produced by Khan came only after he was refused
refugee status, but that this behaviour is not uncommon for victims of torture
 Since Pakistan is not a state party, if he goes back to Pakistan, there will be no possibility of
applying to the Committee for protection
 Committee concludes that substantial grounds exist for believing that Khan would be in danger of
being subjected to torture and his expulsion to Pakistan would constitute a violation of Article 3 of
CAT
Comments
The important thing about this case is that we deported him anyway (the Committee says there is an
absolute ban on refouling someone to torture, Canada said this is not an absolute right—see also Suresh.
The Committee noted that this refusal to recognize art. 3 as an absolute ban was a “subject of concern”
after our last periodic report to the Committee)
IRPA s. 3(3)(f): This Act is to be construed and applied in a manner that: complies with international human rights
instruments to which Canada is signatory.
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Temporary Residents







The consolidated policy objective of temporary residency programs is found in s.3(1)(g) of the IRPA:
 “To facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism,
international understanding and cultural, educational and scientific activities”
The primary objective of temporary residency is to contribute to the growth of Canada’s economy
General rule is that no one is allowed to come without a visa (exceptions for US, etc.)
Overarching principle is whether or not the individual s likely to leave again at the end of their visa (if they have
sufficient roots/ties in their country of origin, ie, bank acount/job/house)
Visa officer must allow the applicant an opportunity to respond to his concerns (Yuan, 2001: here officer thought
student would not go back to China after studies – court referred matter back to the dept. for reconsideration by a dif.
Officer)
3 broad principles applying to temporary status (De La Cruz, 1989)
 Decision to issue/deny a TRV is a discretionary and administrative one
 Burden of proof is on applicant to establish that entry to Canada would not be contrary to immigration laws
 If visa officer has performed duty by properly considering the application, reviewing court will not interfere with the
decision even if the court may have reached a different decision (reasonableness standard)
These three mean that it is extremely difficult to argue if a TRV is refused.
Dual intent is possible. You may intend to apply for permanent residency later
Entry and Departure
 TRV holder not entitled to entry: must continue to meet same requirements at point of entry (IRPA Regulations s. 180)
 Duration is 6 months by default (Regulations s. 183(2)), though examining officer can intervene and grant longer or
shorter
 Some visas may be extended (study visas that are too short for the period of study, etc). The application must be made
(1) before the end of the authorized period of stay and (2) the applicant must have complied with all conditions imposed
on his or her entry into Canada. While Citizenship Canada is making this decision, you are deemed to have “implied
status”: this continues your lawful temporary residency even though your visa may have expired.
 Status can be restored within 90 days (Regulations s. 182), and shall be restored if all conditions met.
Pursuant to s.183 of the IRPA Regulations, the following conditions are imposed on all temporary residents:
 To leave Canada by the end of the period authorized for their stay
 Not to work, unless authorized to do so
 Not to study unless authorized to do so
Temporary Workers
Work Permits
 TRs need to apply for a temporary work visa to work in Canada. They first need a job offer.
o Definition of “Work” (s.196 regs): An activity for which wages or commission is earned, or that competes
directly with activities of Canadian citizens or PRs in the Cdn labour market.
o Immigration officer determines
1) whether the job offer is genuine
2) whether the FN is likely to have a neutral or positive economic effect on the Cdn labour market (i.e.
‘Canadians-first’ principle), BASED ON THE OPINION provided by HRSD (Human Resources
and Social Dev’t) (s.200)
o HRSD validation is required for issuance of work permit.
o HRSD decides whether to authorize the application vis-à-vis its primary mandate  to protect and develop
the domestic CDN labour market.

HRSD checks to see if employer has advertised across Canada and has been unable to find a qualified CDN or PR to fill
the position.

EXCEPTIONS TO REQUIRED HRSC VALIDATION:
o Where applicant shows that her employment will advance one of Canada’s public policy objectives (i.e.
create or maintain social, cultural, or economic benefits or opportunities for CDN citizens or PRs)  s. 205
regs.
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Stephanie McKinnon

o
o
o
o


This discretion is mentioned in CIC’s “Foreign Worker Manual” as an exception that ought not to
be used for convenience.
Where application is for religious or charitable work
Participants in sports activities
Refugee claimants
Humanitarian reasons for FNs who can’t support themselves
Can work without permit (s.186 Regs) IF
1) business visitor
2) diplomat or diplomat’s family member;
3) on campus if student
4) as performing artist other than for film, TV or radio
5) sports participant
Business visitor (per s.187 of the Regs): someone who seeks to engage in int’l business activities in Canada w/o directly
entering labour market. This means primary source of remuneration and principle place of business and accrual of profits
must be OUTSIDE Canada.
o They must also be:
1) purchasing CDN goods or services for a business or gov’t;
2) receiving or giving training w/in Cdn parent or subsidiary of the corporation that employs the
visitor outside of Canada;
3) representing a foreign business or gov’t to sell goods (but not to general public)

INTERNATIONAL AGREEMENTS: Work permit can be issued w/o HRSD confirmation if FNs intend to work
pursuant to an int’l agmt or agmt by minister with provinces.

Being on a temporary work permit is a precarious position. The visa can be cancelled at any time and the work permit
invalidated, which means the temporary resident must leave immediately.
Temporary Foreign Worker Programs

TWPs can benefit the migrants and their employers, and the receiving/sending countries
o On the other hand, TWPs can create a class of easily exploited workers who lack workplace protections and
other basic rights

Audrey Macklin points out TWPs fill immediate but not necessarily “temporary” needs, and rather, fill gaps chronic gaps
in undesirable, devalued and low-wage sectors.
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Stephanie McKinnon
Walzer, “Membership”, Spheres of Justice: CB 243-249








Every immigrant and every resident is a potential citizen. Not allowing migrants (i.e. guest workers) to become citizens,
means the state is like a family with live-in servants – a little tyranny.
Guest workers are invited into a country because no one in the country already wants to do the work for such little pay
(basic free market). Rather than making those jobs more desirable for citizens, jobs are shifted the from domestic to
international labour mkt.
It is crucial that workers are admitted as “guests”; regulations are designed to bar them from the protection of citizenship.
Their existence is precarious; they are segregated by sex, housed in barracks, prevented from bringing along dependents.
Basic civil liberties are denied to them.
o It seems like a bargain all around  the harshness of working is temporary and the money sent home counts in a
way it wouldn’t count in a European city.
Without the denial of political rights and civil liberties and the threat of deportation, the system wouldn’t work. Guest
workers tend to fear government since their residency is tied to employment.
These guests are a disenfranchised class, typically exploited or oppressed. The very purpose of their precarious status is
to prevent them from improving their situation so that they remain willing to take on hard work at low pay. They are
“children of a special sort” because they are prevented from growing up.
Walzer thinks this is fundamentally problematic. A large group of citizens is made vulnerable to another group.
If we allow states to exclude people (closed borders), once a state lets someone in, it has to let them fully in (no secondclass citizens). Any exercise of state power requires a special justification. If we are entitled to determine our
community, then we can’t invite people in just for the sake of exploitation.
Admission and exclusion are at the core of communal independence. The denial of membership is always the first of a
long train of abuses; we must deny the legitimacy of the denial in the first place.
Ruhs, “Designing Viable and Ethical Labour Immigration Policies”: CB 250-259


Ruhs is in favour of temporary worker programs, but concedes that they would require some changes in policy design.
o Ruhs points to consequences of principle-based approach that Walzer advocates:
 Encourages illegal immigration
 Proliferation of a black market
 Power of employer to use threat of deportation is worse with illegal migrants
o Walzer’s view creates incentives to close borders to limit labour, and the demand will be filled illegally who are
all the more vulnerable.
Ruhs’ suggested policy changes necessary to improve TWPs:
o Rather than tying the work permit with a particular employer, we should issue separate work permits that are
not predicated upon employment with a particular employer but in a particular sector. Would put temporary
workers into more of an open labour market.
o Charging employers fees to bring temporary workers into the country to ameliorate harsh effects of these
programs, but still providing comfort to domestic workers. Would set this fee to match cost of hiring temporary
workers to hiring domestic workers. Of course there’s a danger of the employer offloading this fee on to the
worker.
o Workers should have some opportunity to become PRs or citizens. Not necessary automatic, but there should be
some room for this possibility.
Live-In Caregivers






The term “live-in caregiver” is defined in s.2 of the IRPA Regulations as “a person who resides in and provides child
care, senior home support care or care of the disabled without supervision in the private household in Canada where the
person being cared for resides”
Part of economic class of PRs—but enter as TRs and can apply for PR status after 2 years of full-time employment as a
LIC
An individual who wants to come to Canada as a LIC must apply for work permit in accordance with Regulations and
apply for TR visa if required
It is important to note that the cumulative period referred to in s.113(1) of the Regulations may be in respect of more
than one employer or household and, in addition, the cumulative period need not be without interruption
However, the cumulative period may not be in respect of more than one employer or household at a time
In Turingan v. Minister of Employment and Immigration, the Federal Court emphasized that immigration officers have
limited discretion to refuse permanent residence status once it has been determined that a participant has worked the
required 24 months
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Immigration and Refugee Law, Winter 2010, Prof. Fox-Decent



Stephanie McKinnon
More than 80 percent of live-in caregivers are women from countries of the South
Their precarious status, the obligation to live in the home of the employer and their general situation of dependence on
their employer make for an often highly stressful and potentially abusive workplace environment
Critics of the program have described it as a situation of exploitation with the risk of violation of the fundamental rights
of the workers involved
Macklin, “On the Inside Looking In: Foreign Domestic Workers in Canada”: CB 262-275




Foreign born women have always dominated the occupation because native born women simply refused to do it for the
wages and working conditions offered by prospective employers
Canada has consistently failed to attract and retain sufficient numbers of women to meet the demand – but curiously
chronic supply-side shortages never seemed to motivate significant numbers of employers to improve wages and
working conditions
Elements of master-servant relationship
These programs give upper middle-class women the opportunity to pursue careers
Students









FNs required to apply for a study permit before entering Canada, with exceptions under Regulations s. 215: study permit
holders; those who were to be here for 6 mo. or less (IRPA s. 30(2)) and apply to renew; work permit holders; subject to
unenforceable removal order; TR permit holders; applied for permit and was approved but permit not yet issued
Length of course into which FNs are accepted is often a more important consideration than the number of months that
entrants intend to study. Hence, with the exception of exchange programs, even if a foreign national plans to study for
six months or less, and the course or program is longer than six months, a study permit will be required
Regulations s. 219(1): application must be accompanied by acceptance letter (minor children can obtain letter at visa post
or port of entry  TR status)
Regulations s. 220: applicant must have sufficient resources for first year of studies, including tuition, self-maintenance,
and transport
Regulations s. 216: permit issued if on examination IO determines that FN applied in accordance with section, will leave
Canada at end of authorised period, and is not inadmissible (security/criminal concerns); IO can also decide on validity
period and whether to impose conditions
Operational goal: minimise further transactions with the student by issuing a long-term study permit
Section 217(2) of the IRPA Regulations covers renewals of study permits and merely states that an officer on reviewing
an application for the renewal of a study permit shall issue the renewal if it is established that the foreign national
continues to meet the requirements that has been reviewed in the first instance pursuant to s.216, including whether the
foreign national continues to be a bona fide student
IO looking to see if the individual is coming for the purpose he says he is and whether ir seems like he’ll leave at the end
of the period of study.
Pursuant to s.186(f) of the Regulations, full-time students registered at an educational institution who are the holders of
valid study permits are entitled to work without a work permit on the campus of their institution at which they are
registered
Kim v. Canada (Minister of Citizenship and Immigration), 2004 FC 55, [2004] F.C.J. No. 42 (FC-TD): CB 285-287
Facts
 K applied for student visa renewal after having taken a minimal course load and sometimes not
attending courses at all, saying that he had to look after his children
 K claims that these concerns were not raised during his interview with an IO; the IO insists that they
were, but didn’t write down K’s responses
Issues
(1) Was K a bona fide student? (2) Was the process procedurally fair?
Holding
(1) No. (2) Yes.
Reasoning
 Evidence that an applicant was not a bona fide student (e.g., course hours, grades, length of time
taken to complete course) can be determinative to his/her application. IO are authorized to ensure
that people here for a specific purpose are, in fact, here for that purpose. If the IO finds they are not,
they have breached their conditions and are subject to removal.
 IO has no legal obligation to record applicant’s responses to issues raised in interviews, but it is a
more practical and consistent way to make decisions. The IO needed to tell Kim of his concerns so
that Kim could respond. The court found that the IO did this.
Comments
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Immigration and Refugee Law, Winter 2010, Prof. Fox-Decent

Stephanie McKinnon
S. 24 IRPA: IO able to issue discretionary temporary visa.
Breach of Conditions
Dinh v. Canada (Minister of Citizenship and Immigration), 2003 FC 1371, Imm. L.R. (3d) 167 (FC-TD): CB 288-289
Facts
D (Vietnamese) came to Canada on a student visa but then worked in a restaurant and was issued with an
exclusion order
Issues
did D breach the conditions of his student visa and thus merit the exclusion order?
Holding
Yes.
Reasoning
Should not distinguish between full-time wage-earning work and part-time work completed for other
compensation
breach of conditions merits deportation or claim refusal
Comments
Permanent Residents
The Economic Class
The Point System
 Trying to liberalize immigration and make it a question of merit instead of luck
 Underpinned by at least 3 policy objectives from IRPA s. 3(1): maximising social/cultural/economic benefits of
immigration; building strong and prosperous (nation-wide) economy; successfully integrating PRs into Canada
 Looking for education, work experience, adaptability, language, etc. Supposed to track ability to become economically
self-sufficient.
 Number is now 67. Can move up or down depending on how much immigration Canada wants.
 Pursuant to s.77 of the IRPA Regulations, the minimum statutory requirements and criteria must be met by the applicant
both at the time the application is made, as well as at the time the visa is issued
 The “lock-in date” is a reference point used to freeze certain for the purpose of processing an individual’s application. It
is when an immigration officer has the applicant’s submission as an application and all required fees (cost recovery free
and right of landing fee). Used to determine things like age.
 Additional Requirement of Settlement Funds. Economic immigrants are expected to be self-supporting while they
establish themselves in Canada. With the exception of applicants with arranged employment, SW applicants are required
to demonstrate that he or she has the “minimum necessary income”, for six months which ranges depending on the
number of family numbers (see p.315).
Dogra v. Canada (Minister of Citizenship and Employment) (1999), 166 F.T.R. 264 (FC-TD): CB 307-311
Facts
 D (Indian citizen) applied for PR status with “school” and “guidance counsellor” as intended
occupation
 Letters of reference described her experience as a counsellor in India, and subsequent work in US, in
terms almost identical to NOC description
 At interview, IO raised with D the relevance to Canada of her experience in India, and suggested
that she might have trouble finding a job in the current labour market
 D informed that she had been rejected because she didn’t met statutory admission requirements;
letter explained that “I am not satisfied that you have one year of Canadian equivalent experience as
a school and guidance counsellor. … you would not know how to provide personal guidance to
Canadian students who, for the most part, come from an entirely different background than yourself”
 With half or full credit for experience, D would have reached pass mark
Issues
Did IO err in law in evaluating at zero D’s experience as a counsellor in India?
Holding
Yes
Reasoning
 The fact that an applicant’s experience in her intended occupation may not enable her to obtain
employment in Canada in that field is a legitimate concern. But this concern is addressed in part
through the education and training factor in Schedule I, since good qualifications should help a
person overcome the disadvantages faced by new immigrants entering the labour market
 It is not normally appropriate for visa officers to engage in assessing the “Canadian relevance” of
applicants’ education, training and experience when they are consistent with the terms of the
statutory criteria because:
1. Assessing Canadian equivalents is a task better left to accreditation or licensing authorities
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Immigration and Refugee Law, Winter 2010, Prof. Fox-Decent
Stephanie McKinnon
2.
Comments

Immigration policy values flexibility, and education and active labour participation is more
likely to be of importance in predicting successful establishment
3. Visa officers can’t reject applicants by reference to criteria not included in the CCDO
 In this case, the officer exercised his discretion unreasonably in rejecting the application based on
“cultural knowledge”. The multicultural nature of Canada puts the visa officers perspective that
Canadian students come from different backgrounds than Dogra at odds with reality.
 The visa officer’s questions would not have allowed him to discover probability of success in
Canada in a 15 minute interview. Furthermore, questions designed to elicit a knowledge of
“Canadian customs and culture” are suspect by their very nature b/c they assume a monolithic
perspective.
Standard of review here is reasonableness.
In Nehme v. Canada (MCI) [2004, FCTD] – the court found that the officer’s duty to review alternative occupational
classifications extends only to those proposed by the applicant or those that any knowledgeable observer would
recognize from the application submitted.
 Burden is on the applicant which job category or skill her application should be considered under
 However, if the knowledgable observer would recognize something else, then IO has duty to take it into account
Sheikh v. Canada (Minister of Citizenship and Immigration), 2003 FCT 272 (FC-TD): CB 312-314
Facts
Sheikh applied as “Contractor and Supervisor, Mechanic Trades” under NOC classification (Plant
Foreman). He submitted evidence regarding his education, which indicated that he had a high school
diploma and a “AC/Refrigeration diploma” from the Classic Engineering Training Centre in Bangladesh.
He also claimed he had worked as a plant foreman for six years, although only having the title (and the
acknowledgment from his employer) for two years. The visa officer gave him 5 points for education (i.e.
for high school diploma) and 4 points for experience, for a total of 54 points (70 points were required for
admission, and 60 for an interview). Sheikh contended that he should have been awarded 13 points since
he was a high school graduate and had a diploma in his field.
Issues
(1) Were S’s education and experience properly assessed? (2) Was the procedure unfair?
Holding
(1) Yes. (2) No.
Reasoning
1. Education and experience
 S claims that IO’s conclusions about type of diploma and certification he had were contrary to
documentary evidence – but his application did not indicate completion of full-time studies leading
to completion of trades training with certification
 S may have understood that his education qualification would merit more points, but did not convey
this clearly in his documents  IO’s assessment was not unreasonable
 S claims that, despite his job title, his work was as a Foreman for many years – but his employer’s
records say otherwise  IO’s assessment was not unreasonable
 Appropriate standard of review is patent unreasonableness; here, IO’s assessments are not of that
nature  upheld
2. Procedural unfairness
 Madan (1998): it is applicant’s responsibility to put before IO all material necessary for a favourable
decision; IOs under no general duty to ask for clarification or additional information before rejecting
an application on the grounds that submitted materials were insufficient to satisfy criteria
 It’s up to the applicant to show that their education/experience is the equivalent to that expected
under the Canadian act
Comments
Standard of Review
Under the point system, IOs are being asked to interpret whether an individual’s education or experience satifies the
condition of statutory terms (the points). The argument is that, under the Dunsmuir test, the review of these decisions ought
to be done on a standard of correctness not reasonableness. Might argue for reasonableness by saying this is a mixed
question of fact and law. But for example, do three diplomas of 3 months each equal a year of post-secondary study? This in
a sense looks like a general question of law (because you could ask this question without knowing certain characteristics of
individual).
Discretion
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Immigration and Refugee Law, Winter 2010, Prof. Fox-Decent
Stephanie McKinnon

Immigration officers have wide DISCRETION to take account of the “personalized elements” that might lead to success
or failure for applicants
o Section 76(3) of the regulations  must obtain concurrence of a second officer
o IOs can substitute their own evaluation for the usual criteria
o Can be positive discretion (to allow someone to be accepted notwithstanding insufficient points) or negative
discretion (refuse someone with enough points)

If an applicant makes a request that the minister consider exercising discretion, the IO must examine all circumstances
but there’s no requirement for a interview
o In Yan v. Canada (MCI) [2003, FCTD]  even if an applicant has a slim chance of success based on
discretion, it will be considered a breach of procedural fairness sufficient to vitiate the decision if the officer
ignores the request.
Chen v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 639 (FCA): CB 318-324
Facts
Chen is a citizen of China who worked at McMaster for 2 years. While in the U.S. later on, he applied
for PR in Canada. He was awarded a sufficient number of points and was told he’d successfully
completed the interview. There was delay obtaining security clearance. Chen then sent the IO a card
thanking her with US$500 to the IO, who told her superior. He was then interviewed again and Chen
stated that it was custom to give gifts and since the IO had made extensive efforts, he thought it proper to
make this gift. He apologized. His application was refused through exercise of special discretion on the
basis that there are good reasons why the number of units of assessment awarded do not reflect the
immigrant's chances of becoming successfully established in Canada (due to bribe).
Issues
Can the IO use her residual discretion to deny someone with sufficient points? Based on non-economic
factors?
Holding
Yes. Yes.
Reasoning
Majority (Létourneau J.A.):
1. Exercise of discretion
 Act references “personal attributes and attainments”, which suggests that one issue is suitability of
applicant and dependents to become successfully established in Canada beyond simple economic
factors
 Some selection criteria relate to economic factors; others (age, education, etc.) refer more to “social
success, that is to say an immigrant’s ability or chances of successfully establishing himself or
herself socially in Canada”
 Defining the selection criteria as economic is a narrowing of the statutory test
 IO exercising discretion can refuse to issue a visa if (s)he has good reason to believe that points
don’t reflect applicant’s chances of becoming economically and/or socially established
 IO properly exercised discretion
2.


Procedural fairness
Doesn’t matter that C was not told at beginning of interview about bribe; content of procedural
fairness is variable, and questions need not be asked in a particular order
C was properly informed that his conduct (alleged bribe) would be considered in eventual decision
Dissent (Robertson J.A.):
Determination criteria as applied by IOs to economic migration cases must be restricted to matters
relating to applicants’ ability to make a living (i.e., economic criteria) – should not be influenced by
conduct suggesting moral turpitude (which is addressed by other parts of the Act)
Comments
This case is a little at odds with the Rule of Law bc if you satisfy the legal point system you should be
able to come. But here looks like it can be undone by residual discretion [so you could let him come to
Canada but then subject him to criminal prosecution… this seems stupid – then he could be subj. to
deportation and this would be one big wasteful circle].
This went to the SCC. The SCC agreed with the dissent and overturned the FCA. Economics
only.
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Immigration and Refugee Law, Winter 2010, Prof. Fox-Decent
Stephanie McKinnon
The Family Class


Section 3.1(d) of the Immigration and Refugee Act lists family reunification in Canada as one of the statute’s objectives
Pursuant to this goal, the IRPA permits Canadian citizens or permanent residents 18 years and over to sponsor foreign
nationals who are members of the family class for admission to Canada as permanent residents
Sponsorship
 A person who seeks to sponsor someone for admission to Canada has a right to make an application and to have that
application determined
 Sponsors must undertake to support the relative or family member and their accompanying family members for a period
of 3 to 10 years, depending on the relationship between sponsor and family class member
 Sponsored family class members who have been selected for permanent resident status are not required to meet the
selection criteria imposed on members of the economic class
 In addition, a family class member who is a spouse, common-law partner, or child of a sponsor (unlike other applicants
for permanent residence) is still admissible even if he or she has a medical condition that might reasonably be expected
to result in excessive demand on Canada’s health care system and social services
Two Streams of Admission Under the Family Class
a) Sponsorship: operates to unite people in Canada with relatives from abroad
b) Accompaniment: successful applicants for permanent admission to Canada (whether economic, family, or refugee
stream) may also bring with them spouses/common-law partners and dependent children and grandchildren. These
relatives are admitted because of their relationship to the principal applicant
 Section 1(3) of the IRPA Regulations defines them as accompanying “family members” (as distinct from “members
of the family class”)
 Accompanying family members are not subject to the sponsorship program
 Advantage of coming under accompaniment is that their immigration is automatic – they become permanent
residence without some of the other restrictions
Who is Family?
IRPA Regulations provide that the following persons may be sponsored as family class members:
 Spouses or common-law or conjugal partners 16 years of age or older
 Parents and grandparents
 Dependent children, including adopted children
 Children under 18 years of age whom the sponsor intends to adopt
 Children under guardianship
 Brothers, sisters, nephews, nieces, or grandchildren who are orphans, under the age of 18, and not married or in a
common-law relationship
 One relative of any age if there is no aunt, uncle, or family member from the list above who could be sponsored or
who is already a Canadian citizen, Indian, or permanent resident (i.e.: have to exhaust all the options above before
being able to sponsor another family member)
**A notable omission from the list above is non-orphaned siblings. However, Canadians or permanent residents can sponsor
parents, and parents can bring dependent children as accompanying family members. In effect, sponsorship of a parent
becomes the available legal means of facilitating sibling reunification, but only applies if the foreign national sibling is a
dependent child of the parent
Think: if someone is excluded from list above – humanitarian and compassionate considerations is a good avenue to pursue
as an alternative
Partners
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Non-Canadians in a conjugal (mutual commitment to a shared life to the exclusion of all other conjugal relationships;
interdependency) relationship with a Canadian citizen/PR do not have a right to live in Canada – but may be
sponsored
“Spouse” not defined in IRPA or Regulations, but apparently intended to refer to a man and a woman who are married
(though same-sex marriage is now likely recognised: see below)
“Common-law” and “conjugal partner” apparently defined in gender-neutral terms
 Common-law partner must have cohabited with sponsor for at least one year in a conjugal relationship
 Conjugal partner is a FN residing outside Canada in a conjugal relationship with the sponsor for at least one
year – often applies where parties cannot cohabit for economic, immigration, etc. reasons
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FN spouses or common-law partners who live in Canada may be sponsored from within Canada (exception for general
rule), as long as not subject to a removal order
Average time for approval of inland sponsorship application is approx. 6 mo.; those who cannot enter Canada because of
visa issues etc. may apply from abroad, where processing time varies from 8-17mo. (should not enter from outside or
apply simultaneously as a TR, as the very foundation of this application is your intent to leave again – instead, dual
intent usually works the other way around, with the TR visa preceding the PR application)
Visitor visas generally not granted to those wishing to enter Canada for the purpose of having their applications
processed from within Canada
IRPA requires a marriage to be valid under laws or jurisdiction where it took place (formal validity: technical
aspects of the marriage ceremony) and Canadian law (essential validity: legal capacity to marry)
IO makes a decision, then appeal to the IAD. This is then a de novo hearing (can submit new evidence, IO’s decision
taken into account). The persons appealing have to show on the balance of probabilities that the decision made by the
immigration officer was erroneous. No limitation on the scope of issues that the IAD will review – fact and law are all
up for reconsideration.
S. 4 Regulations: no marriages of convenience for citizenship.
Bhatti v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 333 (IAD): CB 373-375
Facts
B (PR in Canada as of 2000) had long-distance telephone arranged marriage to wife in Pakistan in 2001;
father signed wedding certificate on his behalf, but signed his son’s name instead of his own (as
representative of son)
At interview, wife forgot year of wedding, mixed up date of husband’s departure to Canada
B and wife have never met as adults, and never consummated the marriage
Wife was denied standing as member of family class 2003
Issues
Can Bhatti sponsor his “wife” as a member of the family class?
Holding
No.
Reasoning
Test is (1) is the marriage valid in country of marriage? If yes, then (2) was it entered into for the purpose
of acquiring status?
Non-compliance by B’s father and B with respect for formalities of law rendered the marriage void under
Pakistani law (formal validity)  not a valid marriage in law  B’s wife is not a member of the family
class
Comments
IAD have said marriages should be recognized not just on Western standard of love, but you can see how process of inquiry
might be unsettling. Imagine you are in arranged marriage and only met a few times – and the man is in Canada trying to
establish himself and has had an arranged marriage – and maybe haven’t seen each other for a time – so only evidence of
bona fide they can give is evidence of wedding ceremonies. In Macapagal case there was considerable doubt and suspicion
bc these people hadn’t been in touch very much (but in many cases this is the way it is).
This is some serious intrusiveness into personal affairs by the government. Fear of advantage-takers requires the submission
of individuals to these intrusions – how else can they distinguish between a real marriage and a sham?
Macapagal v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 21 (IAD): CB 375-381
Facts
M (from Philippines, PR in Canada) met partner in June 1999, married her 2001, they lived together as
husband and wife 3 weeks
M came back to Canada and hasn’t returned to be with partner since; now seeks to sponsor her as a
conjugal partner
IO found that marriage was void, as M was subject to Filipino law wherever he went, and Filipino law
does not recognise M’s prior divorce and prohibits bigamy
Issues
Is M in a conjugal relationship?
Holding
No.
Reasoning
 M argues that his relationship is conjugal: lasted more than 1 year; sexual relations; frequent
communication; wish to be reunited in Canada to start a life together
 “Conjugal partners” are different from common-law partners and spouses in that they are eligible for
PR status only in the context of a family-class sponsorship – but not as an accompanying family
member [under IRPA Regulations s. 1(3)]
 These characteristics of conjugal relationships originally applied to couples living together for
family law purposes – but in immigration hearings the fact situation can be different because
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Stephanie McKinnon
the couples are often apart
No cohabitation; wife remained silent (did not testify); M didn’t (couldn’t?) articulate much about
his relationship with her; little detailed knowledge; no evidence of emotional tie; no
interdependence; no joint decision making  no conjugal relationship
Two-step process for determining family-class status as a conjugal partner
1. Molodowich (1980): whether or not a partnership has characteristics of a conjugal relationship
(none is determinative)
 Shelter: live together in the same home as a couple
 Sexual and personal behaviour: exclusive and committed, with evidence of interaction
 Services: sharing of household and family-type responsibilities; mutual assistance in times of need
 Social activities: shared time and leisure activities; relationships and/or interaction with each other’s
family
 Economic support: financial interdependence (e.g., joint ownership or assets)
 Children: attitude and conduct towards them in context of relationship
 Social perception: treated and perceived by the community as a couple
2. Purpose: partnership as bona fide for purposes of immigration to Canada; evidence must
establish that conjugal relationship is not a bad-faith relationship (not genuine, and not
entered into primarily for IRPA status proposes)
 The relationship can be undertaken partly for immigration purposes – but this can’t be the primary
reason
 Is the second step of the test already satisfied by the seven criteria of the first step?
 Burden is on applicant to prove bona fide marriage.
Family Reunification
 Canada has long incorporated some form of family reunification into the immigration component of its nation-building
project
 The issue of whether there exists a free-standing human right to sponsor family members has not been squarely
addressed by Canadian courts.
 There is no recognized right to family life in Canadian constitution
 International and regional human rights instruments declaring a right to family life tend to favour an intact family’s right
not to be ruptured by deportation but provide more ambiguous support for family reunification
 This is unsurprising, since support for family reunification would impose affirmative admission obligations on the state
Same-Sex Relationships
 Now (under IRPA): citizens and PRs can sponsor same-sex partners if they met criteria of conjugal or common-law
partners and otherwise fulfil sponsorship prerequisites
 No apparent obstacle to recognising the validity of same-sex civil marriages performed in Canada for immigration
purposes
Caron v. Canada (Minster of Citizenship and Immigration), [2005] I.A.D.D. No. 89 (IAD): CB 383-386
Facts
 C (Canadian) and partner (Italian) met on the internet; first physical meeting June 2002, then
August 2002; decided to live together; meanwhile, spent all available time together
 C’s partner came as soon as commitments were addressed in May 2003; started combining affairs
economically
 C applied for landing of his partner, but was refused on the grounds that the relationship was not a
qualified conjugal partnership
 Agency representative, at pre-hearing meeting, stated that relationship appeared bona fide,
apparently began in June 2002, and if application was made today C would probably succeed
 Relevant time period is October 2002 – October 2003
Issues
Was C’s relationship a qualified conjugal partnership under the IRPA definition?
Holding
Yes
Reasoning
 Burden on C to show on balance of probabilities that his relationship meets the definition of
conjugal partners
 M. v. H. (1999): criteria may be present in varying degrees and are not all necessary for relationship
to be found to be conjugal; neither opposite- nor same-sex couples are required to fit the traditional
marital model to qualify as “conjugal”; flexible approach is needed
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 C has demonstrated a conjugal partners relationship
Using a flexible approach based (but not dependent) on the conjugal partners criteria, a bona fide
relationship lasting more than one year prior to application may qualify as conjugal for the
purpose of family-class sponsorship
Comments
Polygamous Relationships
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IRPA prohibits sponsorship of more than one intimate partner
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Polygamy is also a criminal offence in Canada, but polygamous situations arise occasionally
Awwad v. Canada (Minister of Citizenship and Immigration), Docket IMM-1003-98: CB 387-390
Facts
 A (Jordanian) applied to PR status on H&C grounds 1993  denied
 Husband (had 2 wives) lived with first wife and children in Canada
 A applied again under H&C grounds and as self-employed
 IO rejected A on grounds that she did not qualify under definition of self-employed person; IO also
considered that A was a second wife
 A claims that IO erred in overemphasising lack of business experience, and considered polygamy
matters that were irrelevant
 Crown submits that IO’s discretion was properly exercised, and that IO may consider if admission of
parties to a polygamous marriage would be contrary to the Immigration Act
Issues
(1) Did visa officer err in determining that A was not qualified under self-employed category? (2) Did IO
consider irrelevant considerations in refusing A – particularly that she was the second wife of a Canadian
citizen?
Holding
(1) No. (2) No.
Reasoning
1. Self-employed person
 IO did place some emphasis on A’s lack of experience, but this was not determinative; application
was also considered in H&C grounds
 Experience as a self-employed person should be given more or less emphasis depending on the
nature of the contribution the person is intended to make in Canada
 IO assessed experience correctly
2. Marital arrangements
 A’s counsel first raised the family situation, and A had fair opportunity to present related
information
 Children were considered in the H&C application; no error in IO’s judgment
 A’s family arrangement was not determinative of the decision to reject her application for residence
in Canada  no grounds for intervention
 A visa officer may consider whether the admission to Canada of parties to a bigamous or
polygamous marriage would be contrary to the Immigration Act and the law of Canada – but
arguably this consideration should not be determinative
Comments
Relationships of Convenience
 Difficult questions of fact and credibility; various criteria have been applied
 Arranged marriages not inherently less credible, but lack of prior acquaintance poses evidentiary challenges, and
decision makers often attempt to assess the relationship against customary norms in community of origin
 Decision makers may also consider parties compatibility with respect to factors like age, education, and religion –
but with caution
 Kaloti (2000, FCA): intention regarding the marriage is fixed in time at the time of the marriage (not at time of
application) and cannot be changed – but now that the living-together criterion has been removed by the new IRPA,
unclear whether the original-purpose criterion is still applicable
Indicators of the existence of a genuine marriage and/or intention to reside with the sponsor
 Inconsistent or contradictory statements regarding matters such as the origin and development of the relationship
 The applicant’s history of previous attempts to gain entry into Canada
 Evidence of a previous marriage for immigration purposes
 The parties’ knowledge about each other
 Contact between the parties
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Family ties
Exchange of gifts
Financial support
Salh v. Canada (Minister of Employment and Immigration) (1988), 5 Imm. L.R. (2d) 114 (IAB): CB 391-394
Facts
S had known husband in India before coming to Canada; later undertook arranged marriage and lived
together 1 year
Husband had left Canada; applied for PR status but (on advice of lawyer) didn’t mention his marriage 
denied; applied fraudulently for refugee status  denied
S applied to sponsor her husband; IO refused on grounds that marriage was primarily for purpose of
gaining admission to Canada through family class, and not with intention of residing permanently
together; evidence was lack of knowledge about spouse, no proof of living together, infrequent
communication, arranged marriage, and husband’s prior false claims
S claims that they talk every month on the phone, correspond weekly, love each other, and did not marry
for immigration purposes
Issues
Bona fide marriage?
Holding
Yes.
Reasoning
Majority:
 Husband’s past dealings with immigration authorities have left much to be desired, and have been
deceitful
 But marriage was arranged according to Indian traditional custom, and has created an enduring and
genuine relationship
 Majority said that you have to consider marriage at the time performed, that they’d communicated
despite separation
 double test disqualifies spouse if marriage is entered into (1) primarily for the purpose of
gaining admission to Canada and (2) not with the intention of residing permanently with the
other spouse (both elements must be satisfied to disqualify spouse)
Dissent:
 Husband’s state of mind is relevant, not S’s; relevant timeframe is when marriage occurred
 Husband had made a determined effort to remain in Canada by deceitful means that have not been
justified
 This marriage was just a ruse to remain in Canada
 Onus is on applicant to prove on balance of probabilities that (s)he complies with Act and
Regulations – has not discharged it here
Comments
Children
Dependent Children (biological or adopted):
A dependent child under the regs is someone under the age of 22
 Must be some evidence of dependency on the parent (ie because they’re in full-time school)
 Or if they suffer from mental or physical disability (age doesn’t apply)
Certain restrictions:
 age determined at the time the application is received.
 at the time of sponsorship the child cannot be a spouse or a common law partner
Canadian children Can NOT sponsor their parents.
Rationale: children generally don’t have resources you need to have available and they generally can’t act as custodians for
parents. But: what if non-Canadian parents themselves had the money that usually the sponsor usually has to show? In those
circumstances should children be allowed to sponsor their parents?
 Policy grounds: bad for children to sponsor parents (if the sponsoree had the money) – the child would become a vehicle
whereby the parent could sponsor themselves; Question of legal capacity if children have to undertake financial
responsibility for their parents – could get around this policy issue by having parents upfront a fund.
 REVIEW accompanying family members (ie, with skilled workers). We don’t require them to sponsor if family comes
with skilled worker, but we require sponsorship if they come later. Policy grounds: if we want them to come we will
offer incentive (ie sure you can bring family), but once they are here no more incentive needed so we can squeeze them.
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Charter s. 15 potential challenge:
 What about children not being able to sponsor their parents – s. 15 discrimination?
 Well age is one of the grounds. Obviously there’s differential treatment. Could argue this is using children as a means to
an end. We don’t let kids do a lot of things – vote, drink, drive. The usual presumption in family law is the BIC. Conflict
of interests for children and parents? We could put burden of sponsorship on to the parents
 S. 6 of the Charter makes a distinction between nationals and foreign nationals – distinctions in statutory law are
allowed to be made on this same basis. And here it’s a citizen (the child) suffering in an immigration matter – so it
might turn on how the court would analyze prior jurisprudence
Also international law. Remember Baker. Best interests of children to consider in refusing to allow sponsorship.
de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436: CB 400-419
Facts
Ms. de Guzman, a citizen of the Philippines, came to live in Canada in 1993 as a permanent resident. She
was sponsored under the family class by her mother as her unmarried daughter (apparently she was
married in 1982 to a Manuel Montiadora so she shouldn’t have been eligible). When she applied for her
visa in Manila, she told IOs that she had only one daughter, Shara Mae, who was accompanying her. In
2001, after becoming a Canadian citizen, she applied to sponsor her sons, Jay and Jayson Montiadora
(17 and 16 respectively), whom she had left with their father in the Philippines. In 2003, their
applications were refused under paragraph 117(9)(d) which excludes them as eligible members of the
family class b/c they had not been examined for immigration purposes when Ms. de Guzman came to
Canada. De Guzman’s misrepresentation resulted in a lifetime bar against sponsoring her two sons
(under 117(9)(d)).
Some Other Relevant IRPA Provisions (see p.402-3 for all of them)
 Section 3(1): one of the objectives of the IRPA is to reunite families in Canada
 Section 3(3)(f): The IRPA “shall be construed and applied in a manner that complies with int’l
human rights instruments to which Canada is signatory”
Issues
Holding
Reasoning
(1) Is s. 117(9)(d) authorised by the IRPA? (2) Does it violate parents’ rights under Charter s. 7 by
preventing parent-child reunification? (3) Is it inconsistent with int’l HR instruments protecting the right
to family life?
(1) Yes. (2) No. (3) No.
 If dG had disclosed sons’ existence on her application, would likely have been refused because their
birth certificates (unlike daughter’s) listed dG as married
 No doubt that dG’s misrepresentation was intentional
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IRPA authorisation
IRPA is “framework legislation”: core principles and policies, with secondary ones left to
Regulations  broad delegations of legislative power
dG claims that s. 117(9)(d) is invalid because GGinC took irrelevant considerations into account,
since the exercise of regulation-making powers in various Divisions of the IRPA are mutually
exclusive – but s. 117(9)(d) falls under IRPA s. 14(2), which confers broad regulation-making
powers, and Parliament didn’t mean to make each Division watertight
G claims that IRPA s. 13(1) creates a “substantive” right to sponsor children that is thwarted by s.
117(9)(d) – but regulations can affect substantive matters, s. 13(1) is expressly “subject to the
regulations”, and s. 14(2) authorises regulations to “prescribe and govern any matter relating to”
family class and sponsorship
Parents’ Charter rights
Evans does not accept the argument that para. 117(9)(d) deprives her of her right to liberty b/c it
restricts her right to make fundamental personal choices, and her right to security of the person by
subjecting her to psychological stress from being separated from close family members.
She has not provided evidence of special hardship or psychological stress and she has been
separated from the children for 8 years. She could reunited with them by going back to the
Philippines permanently.
There is not sufficient nexus b/w the state action and separation  she left the children voluntarily.
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Furthermore, they could have applied for an H&C exemption based on s.25 or the sons can apply
under the economic class
3.
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Comments
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IRPA
IRPA Regulations
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Int’l HR instruments (s. 3(3)(f))
Relies on right to family life and best interests of the child found in international docs.
The Optional Protocol (to the Convention on the Rights of the Child) cannot trump IRPA without
clear and explicit language from the legislature. (Some provisions do explicitly include international
obligations— For example, paragraph 97(1)(a) specifically refers to the Convention Against Torture
to help define a person in need of protection.)
But, after Baker, international law must have some persuasive force so:
Parliament should not be presumed to legislate contrary to int’l instruments binding on
Canada, but non-binding instruments are no more than persuasive and contextual
A legally binding int’l HR instrument to which Canada is signatory is determinative of how IRPA
must be interpreted and applied, in the absence of clear contrary legislative intention (Parliament
can’t be held to have intended int’l law always to trump in the event of a conflict, based solely on
one line in a large Act)
Unnecessary to decide here the effect or role of non-binding instruments, but Parliament probably
meant them to be persuasive and contextual (not determinative) in interpretation and application of
IRPA, and not all will be equally persuasive
BUT don’t apply this framework of analysis to individual provisions. It is applied to the
interpretation of the IRPA as a whole.
It must first be determined whether impugned provision renders the IRPA non-compliant. A
reviewing court must consider the provision in the context of the entire legislative scheme (i.e.
whether other provisions mitigate its impact on a IHRI right).
If the IRPA is found compliant, that ends the inquiry. But if the statutory provision is a regulation,
the second step is to determine whether the relevant enabling section of the IRPA authorizes the
Minister to enact a regulation which renders the IRPA non-compliant.
This case is distinguishable from others because H&C application still available, even though
sons themselves must initiate it
Convention on the Rights of the Child makes children’s rights a primary consideration, not the
primary consideration – not every statutory provision must comply, if best interests of the child are
considered over all (here, H&C application is the avenue)
H&C application is a safety valve protecting parents’ Charter rights and Canada’s int’l obligations
despite restrictive regulations
In this case, even though de Guzman can’t sponsor her kids, they can come under other regulations.
Since there are other means for them to come (besides family sponsorship), this is consistent with
international law.
Fox-Decent: if there is discretionary power to approve an application on H&C grounds, it is almost
always true that you could exercise this discretion in favour of some HR norm or int’l legal
obligation
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So instead of reforming our legislation, we can just bypass it
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This effectively ousts IRPA s. 3(3)(f)
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Should instead perhaps consider int’l law differently and outside H&C considerations,
as we are short-changing the value of int’l law
An increased role for H&C discretion also implies an increased role for judicial oversight
Is substance creeping into the field of procedure here?
binding (ratified)
determinative
look at Regulation-making power in
IRPA
non-binding
persuasive & contextual
Dela Fuente v. Canada (2005)
o The relevant time period for the s. 117(9)(d) inquiry extends continuously from the initial filing of the
application to the landing at the port of entry
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Section 51 imposes an obligation on applicants to disclose change in marital status between time when visa
obtained and time when entry is sought – but this is not redundant, because the two sections employ
different means
Sponsorship Issues
We didn’t talk about Sponsorship at all in class, so I don’t know how important it is. I just chunked in Dorian’s stuff. FoxyD def said we didn’t need to know Fortaleza.
General requirements
 Sponsors must be 18+, resident in Canada, file application in accordance with IRPA
 Sponsors must undertake to reimburse Canada for every social assistance benefit provided to sponsored for FN for 3
(spouse) or 10 (other) years
 Sponsor may be rejected for reasons related to criminality and financial status
 Sponsors can appeal refusal to the IAD, unless FN is inadmissible on grounds of misrepresentation, security, violating
HR or int’l rights, organised criminality, or recent conviction in Canada to 2+ years imprisonment
 IAD cannot exercise H&C jurisdiction if FN does not fall in definition of family class or is sponsor does not come within
definition of a sponsor
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Macklin, “Public Entrance/Private Member”: CB 434-440
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Economic underpinnings: sponsor must demonstrate sufficient income to support the applicant, provide for financial
needs up to 10 years, ensure that sponsored FN does not become a state burden
What legal difference does it make if one acquires PR status based on point system or familial relationship?
Some spouses of citizens/PRs apply to immigrate from within Canada (can take up to 2 years)
o Until application is “approved in principle”, cannot work legally, ineligible for social benefits, vulnerable
to husband’s withdrawal of sponsorship application ( processing ceases and liable to removal)
o Dependency: women in family class know that continued presence in Canada depends on relationship to a
private actor
o Vulnerability: to exploitation and abuse; connection between immigration status and abuse of power
Women sponsored from abroad enter as PRs, and can seek work immediately
Expectation that family members will support one another (familialisation) does not apply uniquely to immigrants; what
is unique about immigration is additional means (sponsorship requirement) deployed to enforce the norm on
immigrant families
Sponsorship requirement attributed to rise in Keynesian welfare state: more responsibility governments take to ensure
welfare of those under authority  greater need to circumscribe the boundaries of eligibility
Sponsorship undertaking binds federal gov’t and sponsor, but provincial gov’t distributes welfare  used to be poorly
monitored and enforced
“Deadbeat sponsor” now a target of enforcement, despite systemic factors affecting their ability to fulfil the
undertaking (poor communication, reasons beyond sponsor’s control, deterioration of relationship)
2004 policy change eliminated automatic deduction of social assistance payments to sponsored family class members
New IRPA
o Offers an ambiguous response: eases some entry rules, imposes more stringent requirements on sponsors;
sponsored spouses and dependent children exempt from admission bar on grounds of “excessive demands
on health or social services”  intensification of familialisation strategies
o May backfire where single parent below minimum necessary income (MNI) could benefit from having a
spouse to share the burden of childcare and/or allow one partner to work
We impose sponsorship undertakings on immigrant families whose members arrive at different times (here we
have leverage), while families who arrive together are not similarly encumbered (might deter principal applicant)
Not obvious why immigrant families warrant greater surveillance of mutual support obligations than Canadian
families
Desire to separate family members to reunite and need to secure state’s permission gives Canadian government
leverage to “familialise” social costs that it lacks in other domains
IRPA permits state to strip PR status from a holder unable or unwilling to support self or any other dependent – but this
is rarely used because political/bureaucratic costs would be too high
Family class is policymakers’ and critics’ least favoured class: no points system “audition”; eligibility is ascriptive, not
performative
CIC’s Immigration and Citizenship Plan 1995-2000 called for reducing the number and proportion of family class
immigrants: ratio of family to economic class went from 3:2 in 1993 to 1:2 in 1998
o Not just a definitional modification
o Additional factors: downsizing led to delay and inefficiency; discretionary power exercised more
o This delays family reunification while allowing Canada to benefit form presence of preferred
economic migrant
Sponsors of spouses, CML or conjugal partners, and dependent children are exempted from meeting MNI requirement,
but sponsors of others are not
Fox-Decent: we are taking advantage of primary economic migrants’ sunk costs in having immigrated here already
Women sponsored by husbands or partners (Sheppard, “Women as Wives”: CB 444-452)
 Domestic violence and immigrant women
o General obstacles
 Isolating shame and fear characteristic of abuse situations are amplified by language isolation
 For many women, leaving husband or calling police is not an option, as it does not address other
aspects of suffering (economic insecurity, isolation)
 Challenge of adaptation, language problems, different social structures, and highly patriarchal
cultures of some immigrant communities
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 Often hesitant to contact police for fear of racist treatment of husband by Canadian police
Structural obstacles rooted in immigration law
 Precarious or uncertain immigration status, or status linked to spouse’s  fear that breaking up
family or leaving husband will jeopardise right to stay in Canada
 Concern that criminal charges against husband will affect his right to remain in Canada
 So: perceived choice between staying in abusive relationship or putting immigration status in
jeopardy
 Difficulties where the abuser is the legal sponsor for immigration purposes
Immigrating wives and the spousal sponsorship system
o Female immigrants more likely than males to immigrate under family class provisions
o Immigration process systematically structures sexual inequality within the family by rendering one
spouse (usually the wife) legally dependent on the other
o For women who immigrate as sponsors, the husband is the “citizen-sponsor” and they are the non-citizens
 reinforces vision of the family in which husband/father is head of the family and wife/children are
economic dependents
o Immigrant women awaiting sponsorship
 Often reside in Canada on temporary visa
 Sponsoring spouses may unilaterally decide to withdraw their sponsorship application at any
time until is processed  violent/abusive spouse may threaten to withdraw sponsorship
application if wife leaves or displeases him
 If application withdrawn, IOs immediately determine if application has already been processed: if
yes, spouse has right to be landed and sponsorship cannot be withdrawn; if no, case reviewed to
see if there are H&C grounds to accept new immigrant despite breakdown in sponsorship
arrangement
 Guidelines for H&C assessments are problematic
 Continue to include criterion of “significant degree of establishment”, rather than
considering applicant’s potential establishment; unrealistic requirements on immigrant
women in abusive and isolated family circumstances; favour economic autonomy and
integration into the community, when dependency and isolation often exaggerated by
sponsorship system itself
 Failure to resolve the uncertainty facing an abused immigrant woman regarding her
immigration status; guidelines do not require specific outcomes
 Domestic violence not in and of itself sufficient to ensure acceptance based on H&C
grounds; just one factor among many
 So immigrant women faced with abuse might hesitate before seeking discretionary relief from
immigration authorities
o Sponsored immigrants and domestic violence
 PRs formally enjoy all rights and privileges accorded to PRs; husbands are bound by sponsorship
agreement and cannot unilaterally withdraw
 Many immigrant women lack information, and believe that they risk deportation, loss of
custody of children, or economic destitution if they challenge or leave an abusive husband who
has sponsored them
 Ideological or symbolic significance of being sponsored creates a sense of dependency, a belief
that one is not a citizen in one’s own right, but a contingent citizen  invisibility and lack of
status
By linking immigration status to marital status, sponsorship provisions recall the historical practice of basing a wife’s
nationality and citizenship on the status of her husband
Convention on the Elimination of all Forms of Discrimination Against Women requires granting equal rights with regard
to nationality of selves and children – but gender-neutral modern law continues to enforce gendered patterns of
immigration
Conclusion
o Law reform should build upon women’s agency, while recognising the real systemic constraints and
forms of oppression in everyday life
o Need immediate, short-term measures that improve functioning of the existing system without questioning
its underlying assumptions and ideology, and the need for more radical and transformative reform measures
that bring into question the underlying assumptions of current laws and policies
o So: must address problems with current regime while upholding its basic framework
o
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Stephanie McKinnon
In situations of domestic violence, must ensure that immigration law and policy are not obstacles to a
women who is seeking safety and basic protection of her bodily integrity and emotional well-being – this
should be the standard against which any reform is measured
Specific suggestions
 Change sponsorship process so that an application, once made, cannot be unilaterally revoked
 Revise H&C guidelines to specify that if a women faces domestic violence, she will be assured
that her application will be accepted
Family members and inadmissibility
 IRPA s. 40 enables minister to find a FN inadmissible if sponsored by an inadmissible person
 IRPA s. 42 renders a (non-protected) FN inadmissible if an accompanying family member (or non-accompanying family
member under IRPA Regulations s. 23) is inadmissible
 FN who is the accompanying family member of an inadmissible person is inadmissible
 IRPA Regulations s. 117(9)(d) precludes subsequent sponsorship of members of the family class if the sponsor did not
disclose existence of family members when applying for PR status (see De Guzman)
Synthesis and further points
 CIC often imposes DNA requirement to prove a family relationship where there is no official documentation: expensive,
intrusive, prolonged delays
 Refugee claimants required to identify family members as soon as they make their refugee claim in Canada
o Canadian Council for Refugees has suggested that those indentified should be assumed to be refugee’s
family members unless evidence calls the relationship into question
o Council has called on federal government to bring spouses and children of recognised refugees into Canada
immediately and to include processing of sponsorship from within Canada
 Financial eligibility rules and their negative impact on family reunification: IRPA barred sponsorship for persons in
receipt of social assistance (for a reason other than disability), making it beyond the reach of many immigrants
 Some argue that declining economic performance of family class immigrants in recent years is sufficient reason to
further restrict the sponsorship rules
Refugees
The International Context

Refugee law (as per definition of “refugee” in the 1951 Convention Relating to the Status of Refugees) focuses on
individuals outside their country of origin and who, as a result of feared persecution within that country, seek refugee
status
o “Convention refugees” are entitled to basic HR set out in the Convention, and their treatment must be at least
equivalent to that accorded to FNs lawfully residing in that country

Three other categories of refugees:
1. Persons who flee situations unrelated to persecution but qualify as refugees within definitions in regional agmts
2. Same as 1 but don’t have protection of a regional agmt (might be in Asia for instance where there is no regional
agreement)
3. Refugees who can’t return home for valid reasons, but are not entitled to protection under int’l law b/c they
don’t fall within the legal def’n of a refugee under any int’l legal instruments.
1951 Refugee Convention (UN Convention Relating to the Status of Refugees)
Article (1)(a) of the Convention defines a refugee as a person who: owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of
his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who,
not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable
or, owing to such fear, is unwilling to return to it.
 In Canada, “social group” encompasses grounds of sexual orientation and gender
 In other places, these grounds have yet to be recognized
Article 33(1) No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a
particular social group or political opinion
 Exception in art. 33(2) where claimant is a danger to security of country or has been committed of serious crime
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Non-refoulement as a principle of customary int’l law
UNHCR (UN High Commissioner for Refugees)
 Two primary functions: international protection for refugees; seeking “permanent solution” to refugee problems
International protection
 Promoting adoption of int’l instruments for the protection of refugees, supervising their implementation
Durable solutions
 3 typically promoted
o Repatriation (when conditions permit it safely)
 Recently assumed growing precedence
 Many are eager to return, but considerations are mostly political (refugees perceived as a threat to
security)
 UNHCR has emphasised safe return rather than voluntariness  arguable creation of “doctrine of
imposed return”
o Local integration in country of asylum
o Resettlement in a third country when neither other option is possible
 Currently 187 countries that have resettlement programs (incl. Canada)
Interdiction
Canada (and the US and Australia, self-styled “receiving countries”) have set up interdiction strategies (roadblocks). As
signatories to the Convention, if a refugee is in their territory and claiming asylum, you have to hear their case and no
refoulement. So countries will introduce interdiction strategies to limit the number of refugee claimants who make it to their
countries (i.e., imposing visa requirements on refugee-producing countries, or intercepting boats)
 Sale (1993, US SC)
o Interdiction of Haitians on the high seas was permissible because neither US Immigration and Nationality Act
nor Refugee Convention applied to persons outside US; duty of non-refoulement does not apply to act of
repelling asylum seekers from beyond one’s territory
 the Inter-American Commission on Human Rights found the US’s returning of Haitians to Haiti to be against the
American Declaration of the Rights and Duties of Man and the Convention’s art. 33(1) against refoulement).
Safe Third Country Agreements (STCA)
ss. 101 and 102 IRPA
If a person comes through the US to Canada and claims refugee status in Canada, the person will be turned back ot the US
and vice versa. Unless the person fits one of these exceptions:
o Have at least one family member with some legal status in Canada
o Have at least one adult family member with refugee status pending
o Unaccompanied minors
o Arrived with valid visas or did not require visas
o Charged or convicted with an offense punishable by death penalty in the U.S. or another country
o National of a country or a stateless person who is habitual resident of a country where the Minister has imposed
a stay on removal orders
BUT Canada and the US determine refugee status in very different ways, so how is that fair for some people (for instance, if
sexual orientation isn’t recognized in the US).
Canadian Council for Refugees v. The Queen, 2007 FC 1262, rev’d in The Queen v. Canadian Council for Refugees,
2008 FCA 229
Facts
The Canadian Council argued that sections 159.1 to 159.7 (as enacted by SOR/2004-217, s. 2) of the
Immigration and Refugee Protection Regulations (Regulations), SOR/2002-227, which authorized the
STCA, and the designation of the U.S. as a “safe third country” are invalid and unlawful because the
preconditions to enacting the Regulations were not met as the U.S. does not comply with certain
international conventions protecting refugees. The applicants also argued that the Regulations and the
STCA offend the Canadian Charter of Rights and Freedoms, and that the decision to declare the U.S. a
designated country is unlawful pursuant to administrative law principles, the Charter and international
law.
Issues
Is the STCA lawful?
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Immigration and Refugee Law, Winter 2010, Prof. Fox-Decent
Holding
Reasoning
Comments
Stephanie McKinnon
No. Sections 159.1 to 159.7 of the Regulations and the STCA are ultra vires as the conditions to the
enactment of the Regulations, set out in subsection 102(1) of IRPA were not met.
Phelan J.:
Looked closely at the statute (IRPA) and determined that the “Safe Third Country” has to comply with
the obligations under the Convention on Refugees and the Convention on Torture. The country must be
“safe” under international standards (following the way Canada interprets international law).
Determined that the US was not safe after examining tons of empirical material because the court found
that it failed to abide by the Conventions on Refugees and Torture. Since the US was not safe, the STCA
was not valid.
The FCA overturned this. They said:
1. There is a standing issue. The Council applied under public interest standing, but they should
have found a real person. The hypothetical was not okay.
2. Statutory Interpretation of s. 102(2). Trial judge erred in thinking that being a party to the
Conventions and living up to those commitments was a condition precedent to restrict the
government. It was enough that Cabinet had considered whether or not the US had signed the
Conventions and complied with its international obligations. (If they had not it would be an
“improper purpose”. Once the regulations were in force, there needed to be evidence of
significant failure to comply on the part of the US and then having knowledge of that failure, the
government having decided not to repeal the regulations (this would be contrary to the purpose
of the Act, which is pretty much the only way to overturn Regulations)).
Note here that the FCA did not overturn the trial judge’s findings of fact. So there is a standing decision
that found that the US does not comply with the Conventions on Refugees and Torture.
***any action of government (or refusal to take action) counts as a decision that’s reviewable by the federal court.***
An imaginary pf following Canadian Council could make a s. 7 claim going after procedure. The STCA denies a fair
hearing into status as refugee. Singh said that every refugee claimant had a right to a fair hearing.
Refugee Protection in Canada
Two kinds of Refugees are protected in Canada:
1. Convention refugees (threat of persecution is enough, the threat doesn’t have to materialize as death or torture)
2. Protected persons (those whose lives are threatened or if they face a serious risk of torture)
Refugee Determination
1. person makes a refugee claim at a port of entry (CBSA) or an immigation office (CIC) in Canada
|
2. Claim is found eligible by CBSA or CIC and referred to IRB-RPD
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3. Person files PIF within 28 days
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4. Fast track process or full hearing before an RPD member
|
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5. Claim accepted
Claim rejected, withdrawn or declared abandoned
|
6. Person receives refugee protection and may apply for permanent residence



Can apply from outside or within Canada
Eligible unless you fall into a couple of narrow exceptions (you can only get refugee status once, if previous claim
rejected (unless new factual record/evidence), if you’re a Convention refugee in a different country, serious criminality,
from STC). Deemed to be eligible until eligibility determination made
Indiviudal will file a PIF (Personal information form) – a sworn testimony that will to the extent possible lay out the
reasons why the person had to flee – want to frame these reasons in a way that fits within one category of Refugee
Convention or protected person within Canada.
o Convention Refugee (s. 96) or
o Person found to be someone who faces a serious risk or torture, to their life or cruel and unusual torture (s. 97).
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
So within 28 days of filing a claim the refugee claimaint files a PIF. Then there is the opportunity for a person to be put
into a fast track process or send it to a full hearing.

Fast Track: (minister will not intervene, for if it’s an easy yes) If PIF has no questions about identity, no security issues,
claim looks credible, person from refugee producing country, minister has no issue – looks on face of it that they are
genuine refugee – then the claim will be ACCEPTED. The Fast-track process can either involve an interview with
refugee protection officer – who can either send a claim to a full hearing or it can be accepted. Worst that can happen in
a FT is that you go to a full hearing. (All no’s go to a hearing.)

Some people may withdraw their refugee claims (ie, a family member may become a PR and be able to sponsor).

Refugee Protection (Full) Hearing: if the claim looks at all controversial then a hearing will be held with the IRB (used
to have 3 members – now it’s one). It’s not usual for the Minister to intervene but sometime they do. If minister doesn’t
intervene process is supposed to be non-adversarial and the Immigration officer is supposed to want to understand the
claim.. If minister does intervene then the officer has to tell claimant that the minister is intervening and process is now
adversarial. The Minister will be cross examining the claimant and IRB member in that case is suppose to act as an
impartial third party (critiqued that this turns into a 2 vs. 1)
If IRB refuses a claim – there is still opportunity to appeal – FCTD, FCA, SCC, internationally – but usually the end of
the process will be with the IRB (bc you need leave to get to the FC – usually only 10% get ok)


Once a person is a refugee, they may apply for permanent residence.
Definition of “Refugee”
The refugee definition is made up of five elements, each of which must be satisfied. These elements are:
1) the person must be outside the country of his or her nationality or place of habitual residence
2) the person must have a fear of persecution (subjective)
3) the fear must be well-founded (objective)
4) the feared persecution must be based on one or more of the grounds of race, religion, nationality, membership in a
particular social group or political opinion (causal nexus between ground and persecution); and
5) the person must be unable or unwilling to avail himself or herself of the protection of the country of nationality or,
not having a country of nationality, be unable or by reason of that fear unwilling, to return to his or her former
habitual residence
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689: CB 547-567
Facts
 W (UK citizen) joined Irish National Liberation Army (INLA) 1983 as a volunteer because people
had to “take a stand” to protect their loved ones
 First task was to assist in guarding 2 hostages; INLA then ordered hostages executed
 W secretly released the hostages
 Sought police protection  police charged him for his part in hostage-taking
 Near end of prison sentence, chaplain helped W obtain an Irish passport and tickets to Canada
 Admitted to Canada 1985 as a visitor, claimed Convention status 1986 based on fear of persecution
because of membership in a particular social group
 Ireland admits that they can’t protect him from the INLA.
 FCA denied his claim because the state was not the persecutor, distinguished “unable” from
“unwilling” in the Convention definition, “particular social group” read to exclude
terrorists/criminals
Issues
(1) Is state involvement a prerequisite to “persecution” under the Convention refugee definition? (2)
Does it matter whether the claim is based on the “unable” or “unwilling” branch of the definition?
Holding
(1) No. (2) No.
Reasoning
Subjective Fear:
If oral testimony is credible then that ought to be taken as enough.
Well-founded Fear:
Can be of a third-party if the state is unable to protect you from them.
Unable and Unwilling:
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Stephanie McKinnon
As long as there’s a well-founded fear of persecution and the state is not able to protect you from the
third party, then there is no difference between “unable” and “unwilling”.
Claimant need not risk his life seeking ineffective protection of a state, just demonstrate that
ineffectiveness; only where protection “might reasonably have been forthcoming” will failure to
approach the state for protection defeat the claim (i.e., will not meet Convention definition if
objectively unreasonable for him not to have sought protection of home authorities)
Burden of Proof for Third Party Persecution
Lies with claimant.
Step 1: You have to prove on a balance of probabilities that there is a “reasonable likelihood of
persecution” (you always have to prove that you’ve hit the threshold of risk).
Step 2: You then have to prove on a clear and convincing standard (80-85%) that the state can’t protect
you (from the reasonable chance of persecution).
Note that this burden of proof is for s. 96 refugees. Under s. 97, the threshold of risk that you have to
prove (on a balance of probabilities) is that the persecution is “more likely than not” (higher).
Membership in a Particular Social Group
3 Categories of “social groups”:
1) Immutable or unchangeable characteristics (gender, linguistic affinity, sexual orientation)
2) Groups whose members voluntarily associate for reasons so fundamental to their human
dignity that they should not be forced to forsake the association; (i.e., human rights activists)
3) Groups whose members associated voluntarily, then disbanded, but still carries stigma for
persecutors (but since they’ve disbanded there’s nothing you can do about your status)
The idea is that you are persecuted for something you ARE not something you’ve DONE.
Political Opinion
 Political opinion can generally be interpreted to be any opinion on any matter in which the
machinery of state, government, and policy may be engaged.
 The political opinion at issue need not have been expressed outright.
 Often the claimant is not even given the opportunity to articulate his or her beliefs; often they are
imputed/inferred to the claimant from his or her actions.
 The political opinion ascribed to the claimant and for which he or she fears persecution need not
necessarily conform to the claimant's true beliefs.
Dual Nationality
 Must prove well-founded fear of persecution and unable and unwilling to seek protection from the
state with regard to both states of nationality (Section 96 of IRPA: “outside of each of countries of
nationality”).
 Any home state protection is a claimant's sole option when available since international refugee
protection is to serve as "surrogate" shelter coming into play only upon failure of national support.
Case
 His membership in the INLA placed him in the circumstances that led to his fear, but the fear itself
was based on his action, not on his affiliation (so no particular social group)
 To appellant, who believed that the killing of innocent people to achieve political change is
unacceptable, setting the hostages free was the only option that accorded with his conscience.
 The persecution appellant fears stemmed from his political opinion as manifested by this act (so
political opinion as grounds is okay).
 As Irish and British citizen, must prove that not only Ireland was useless, but also Britain.
Comments
This went back for redetermination and Ward got sent back to Britain.
1) OUTSIDE COUNTRY

“Country of nationality” interpreted as “country of citizenship”
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Immigration and Refugee Law, Winter 2010, Prof. Fox-Decent
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

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Stephanie McKinnon
Katkova (1997): possibility of Israeli citizenship isn’t sufficient; must be able to show a “genuine and effective link” as
per ICJ in Notteböhm, which concluded that nationality in int’l law to be decided on basis of “genuine and effective
link”, considering
o Habitual residence of the individual
o Centre of the individuals’ interest
o Individual’s family ties
o Individual’s participation in public life
o Attachment shown by the individual for the country and whether individual has inculcated his children in this
attachment
Stateless claimants: claim is assessed against “county of former residence”; where there is more than one, must show
that on a balance of probabilities would suffer persecution in any country of former habitual residence (and cannot
return)
People can depart country of nationality for reasons unrelated to refugee definition, but events can make them refugees
sur place
People who freely made themselves liable to punishment for violating a criminal law of general application may not
receive protection because they have “manufactured” their refuge claim (Valentin v. Canada (MEI) (1991) FCA).
Canada (Minister of Citizenship and Immigration) v. Williams, 2005 FCA 126: CB 570-572
Facts
 W born in Rwanda to Rwandan father and Ugandan mother; both Rwanda and Uganda transmitted
citizenship by jus sanguinis
 Retained dual nationality until age 18 (2000), when retained Rwandan citizenship but ceased to be
Ugandan citizen
 Could obtain Ugandan citizenship again, but only if he sacrificed Rwandan citizenship
 Filed for refugee status in Canada; IRB denied claim based on opportunity to acquire Ugandan
citizenship (though he only lived there for 9 years as a child, and though he would have to renounce
Rwandan citizenship)
Issues
do “countries of nationality” in IRPA s. 96 include a country (here, Uganda) where the claimant can
obtain citizenship if, in order to obtain it, he must first renounce the citizenship of another country (here,
Rwanda) and he is not prepared to do so?
Holding
Yes
Reasoning
 The true test is: “if it is within the control of the applicant to acquire the citizenship of a country
with respect to which he has no well-founded fear of persecution, the claim for refugee status will be
denied.”
 W claims that Ugandan citizenship is contingent on renunciation of Rwandan citizenship, so cannot
be said to exist at the time of hearing – but where citizenship is available, applicant is expected to
make attempts to acquire it and will be denied refugee status if it is shown that it is within his power
to acquire that other citizenship
 W claims that citizenship is a fundamental right that no one should be compelled to renounce – but
this is too broad: no forced renunciation, no potential for statelessness, citizenship is preferable to
refuge status; no deprivation where obtaining other citizenship is a matter of course
Comments
Fox: could possibly distinguish Katova facts. In Williams, the court might be relying on William’s blood
tie and the fact that he lived there
Fox: always within the applicant’s control to potentially get citizenship. Does holding in Williams have
capacity to turn any country that a refugee go through as a safe-third country. Legal possibility of
acquiring citizenship in an intermediary country
Fox: even if somebody has potential to get citizenship – but it is not a guarantee. Seems like a betrayal of
the international refugee system (should be a seemless web of safe harbour)
Fox: International refugee system was set up where states act collectively as a surrogate not like it is now
where it seems more like a game of hot potato
2) FEAR OF PERSECUTION
No definition of “persecution” exists in the Convention or the IRPA.
 Persecution has been taking to mean an act by the state or third party that the state can’t protect the indivudal from
imposes a threat or significantly infringes on ones dignity.
 Ward: actions that deny human dignity in any key way; sustained or systematic denial of core human rights is the
standard
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Stephanie McKinnon
Most commonly when decision makers are looking at Refugee cases they look at the following conventions to assess if the
person is suffering persecution:
 ICCPR
 ICSER
 Torture
 Rights of child
 Status of women
 Elimination of all forms of racism
One issue that arises frequently in Refugee claimants is whether an individual can claim persecution if they are subject to a
law of general application that they consider oppressive.
 Big general presumption – laws of general appliction are presumed not to be persecutory in nature
 This presumption is rebuttable – the US looks at:
o A facial inquiry (is the law on its face persecutory?)
o The application of the law (is a facially neutral law by application persecutory?)
Zolfargharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 FC 540 (FCA): CB 575
Facts
Iranian who fled Iran during Iran-Iraq war. He claimed Iran had and intended to use chemical weapons
(considered breach of humanitarian law and laws of war). He claimed that he would persecuted for his
desertion.
Issues
Is this persecution?
Holding
Yes.
Reasoning
FCA found this amounted to persecution because individuals are entitled to flee circumstances in which
they would be forced to commit international crimes (the court sort of has to find this way because the
“under orders” excuse is no answer to a charge of war crimes, so countries have to give individuals
shelter from persecution when they take that doctrine seriously and desert rather than commit war
crimes). The FCA related the issue of conscientious objection to participation in chemical warfare, and
not participation in the military.
4 Factors to look at to determine Persecution or Prosecution:
1. Look to intent of the ordinary law rather than the motivation of the person
2. Courts and IRB should inquire objectively into the neutrality of the law. Does the law
discriminate on the basis of political opinion, religion, nationality, etc? Therefore not neutral
3. Presumption of validity: general presumption is that the laws of sovereign states are consistent and
valid – therefore the burden of proof is on the claimant that despite the fact that this is a valid, it
can be said to underlie persecution according to the 1951 Convention
4. It is not enough to say that the law is generally oppressive – it has to be the case that the law is
persecutory under one of the grounds enumerated in the 1951 Convention (causal nexus with
grounds of persecution in Convention).
Comments
This is the leading case in Canadian law.
Hinzman . Canada (Minister of Citizenship and Immigration), [2006] FC 420 (FCTD): CB 576
Facts
A conscientious objector (he was a foot soldier) to the war in Iraq alleged that if he returned to the U.S.
he would be prosecuted and punished for desertion which would constitute persecution. He also argued
that the US invasion of Iraq was illegal, OR, that the violations of humanitarian law committed by US
soldiers would expose him to being implicated in illegal acts committed by the US army
Issues
Does this constitute persecution?
Holding
No.
Reasoning
Not every conviction will constitute sufficient reason for claiming refugee status after desertion or draftevasion – but where type of military action is condemned by int’l community as contrary to basic rules of
human conduct, punishment for desertion or draft-evasion could be regarded as persecution
The legality of the war is irrelevant from a persecution point of view. (In the case of a foot soldier like
H, assessment of “military action” relates to that “on the ground”, not the legality of the war.)
It was not patently unreasonable for the IRB to find that the US was acting badly in Iraq BUT it did not
amount to a systematic denial/infringement of HR, and therefore, Hinzman is not persecuted by refusing
to go to war in Iraq.
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Comments
Stephanie McKinnon
Courts are not going to interfere in foreign affairs because it’s too political.

Raveendran (2003)
o Facts: R and son (Tamil) claimed refugee status on basis that they would face harm on return to Sri Lanka
o FC-TD found that Sri Lanka’s Immigrants and Emigrants Act was selectively enforced against Tamils, and
Tamils were unjustly treated under it
o So: application of a law, rather than law itself, can be discriminatory

Cheung (1993): (failure to comply with one child policy in China penalized with sterilization) “if the punishment or
treatment under a law of general application is so Draconian as to be completely disproportionate to the objective
of the law, it may be viewed as persecutory”

Namitabar (1994)
o Followed principles from Zolfargharkhani
o Refusing to wear chador law in Iran, punishment 74 strokes of the whip. IRB refused application because law of
general application.
o FC-TD set aside IRB decision because not convinced that law in question was of general application, and
enforcement had potential to be persecutory as penalty was disproportionate and no procedural guarantees
Prosecution for an offence may be a pretext for punishing the offender for the expression of political opinions

Persecution during Civil War
 Definition of a Convention refugee does not exclude persons fearing return to situations of civil war: claimants must
still satisfy all criteria for Convention status

Salibian (1990) set out four cumulative principles (non-comparative approach: preferred)
1. Applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in
the future (not examining if he has been individually persecuted).
2. Applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed
directly against him, but from reprehensible acts committed or likely to be committed against members of a group
to which he belonged (enough to show persecution of group he is a member of, this amounts to fear).
3. The fear cannot be that felt indiscriminately by all citizens as a consequence of civil war. Reprehensible acts must be
motivated by some grounds laid out in the Refugee Convention (ethnicity, political opinion, etc.)
4. There must be a reasonable possibility (as opposed to mere possibility or more likely than not) of suffering
persecution upon return.

Isa (1995): claimant must demonstrate a “differential risk” to himself or his group, compared with other individuals or
groups in the country of origin (comparative approach: not preferred)
Civil War Guidelines advocate non-comparative approach in Salibian’s third principle: issue is whether claimant’s
risk is a risk of sufficiently serious harm and is linked to a Convention reason; claimant should not be labelled as a
“general victim” of war without full analysis of the individual’s personal circumstances and those of any group to which
the person may belong



Ali (1996): FC-TD advocated non-comparative approach: relevant issue is whether the claimant has made out a risk of
sufficiently serious harm, and whether that harm can be linked to a Convention criterion
Threshold test is the same as for other refugee claims: establish, on balance of probabilities, that there is a reasonable
chance that you are at risk of persecution
Gender
 1993: Canada sets worldwide precedent by releasing Canadian Guidelines on gender-based persecution
o Central issue is to “determine the linkage between gender, feared persecution, and one or more definition
grounds”
o Four categories of gender-based persecution issues
 Persecution on same Convention grounds and in similar circumstances as men
 Persecution for reasons pertaining to kinship
 Persecution from certain circumstances of severe discrimination on grounds of gender or acts of
violence either by public authorities or private citizens
 Persecution for failure to conform to, or transgressing, gender-discriminating religious or customary
laws and practices
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Stephanie McKinnon
o
o

IRB members expected to follow Guidelines unless compelling and exceptional reasons arise
Canada as a leader in recognising gender-based persecution; courts willing to consider it as almost an analogous
ground of persecution, but can group it under “particular social group” prong (a) (see below)
Gender-based claims must still be related to one of the existing five Convention grounds (awkward)
3) WELL-FOUNDED FEAR








Ponniah (1991): “good grounds” or “reasonable chance” = field between less than 50 percent chance (i.e., civil
standard) and more than minimal or mere possibility
Lai (1989): RPD must answer all evidence before it (incl. objective element), even if subjective element found lacking (if
HR situation in country of origin is truly terrible, should at least respond to de facto presumption of fear)
Fernandopulle (2005): no presumption that person having faced persecution in the past faces well-founded fear of
persecution in the future (here, FCA contradicts UNHCR Handbook)
Ward: if claimant established to have fear, RPD can presume that persecution will be likely and fear well-founded if
there is an absence of state protection – but persecution must be real (presumption can’t be based on fiction), but wellfoundedness of fear can be established by presumption
Galloway: Ward is unclear because does not specify whether criterion is “honest fear” or “fear based on reasonable
grounds”
Timeframe in question is when the refugee protection claim is made
Test of well-foundedness includes assessment of changed/changing country conditions – but decision-makers should
not rely on apparently positive changes that are short-lived, transitory, tentative, inconsequential, or otherwise
ineffective in substance or implementation
o More democratic a state is  more a claimant is expected to exhaust all available local courses of action
o Ward: individuals are not required to put themselves at risk by seeking “ineffective protection”
Ward approach does not sit well with other decisions
o Villafranca (1992): FCA held that if a state makes serious efforts to protect its citizenry, fact that it is
sometimes unsuccessful will not be sufficient to ground a successful refugee claim
o More recent case law has noted the dispute between these two cases
4) GROUNDS OF PERSECUTION

Don’t always have to restrict the case for persecution to one ground; can combine grounds (Ward: not the claimant’s
duty to identify reasons for persecution, but rather for examiner to decide if definition is met); refugee law recognises the
possibility of multiple, overlapping, or intersecting grounds of persecution
Race
 Racial discrimination will “often” entail persecution (in other categories, discrimination per se is rarely considered
persecution, here there’s a presumption); unique status of this basis of persecution explained by jus cogens nature of
prohibition of racial discrimination in int’l law
 Meant to be understood in its widest sense. What counts is the perspective of the persecutors.
 Overlap with nationality
Nationality
Again perspective of persecutor applies.
 Four ways in which people can persecuted on basis of nationality:
1) status as a foreign national
2) as a stateless person
3) when a state strips nationality and ascribes a new one to them which permits their oppression
4) when a state is composed of a former state and person is persecuted on basis of past perceived allegiance
 Batho case: family members murdered. Murder was attributable to fact that one of the grandfathers had not been born in
Ghana. It is enough to be “not the right nationality”. There just has to be a causal nexus between discrimination and
nationality.
Religion
 UNHCR Handbook: right to change religion, right to manifest religion in public and private through teaching,
practice, or observance
 Hui Qing Yang (2001, FC-TD): religion to be broadly interpreted to allow for claims based on religious beliefs, even
if not party of organised religion; can cover cases where person’s religious beliefs are that he rejects religion
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Immigration and Refugee Law, Winter 2010, Prof. Fox-Decent
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

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Stephanie McKinnon
altogether; Falun Gong is considered by China to be a religion, so is for the purposes of the claim; Falun Gong partly
religion, partly social group
Restrictions on right to practice faith may amount to persecution (not only if the religion itself is outlawed).
Fosu (1994, FC-TD): right to freedom of religion includes right to demonstrate religion/belief in public
Cases involving Pakistan’s Ordinance XX (subjecting Ahmadi faith practitioners to severe sanctions) not yet successful
Ordinance 20 in Pakistan: a regime that explicitly discriminates against women, but several FC cases said that
discrimination on basis on religious practice – their persecution would have to be decided on a case-by-case basis
Chabira (1994, FC-TD): religious belief not limited to that of claimant; persecutor’s faith may play a role
Political Opinion (See Ward)
 Relevant issue is whether the agent of persecution considered the claimant’s conduct to be political or attributed
political activities to the alleged victim
 Causal link: from belief to action, from action to persecution
 Klinko (2000): Ukrainian made claims against Russian govt – was persecuted as a result of this. On its face a political
opinion hostile to corruption isn’t against the state itself (since the central government of Ukrain did not officially
condone corruption). But it was here because the opinion inflamed people with public power.
 Chen (1994): Chen was a satirist and drew cartoons satirizing the Chinese government. The FC had no difficulty finding
that this person could make a refugee claim on political opinion. The cruicial test is whether the Chinese government
considers his conduct to have been styled as political activity.
Particular Social Group (See Ward)
 A group may be unified not only through its internal aspects but also because the very existence of the group may be
viewed negatively by the government
 You have to carefully define the group you’re claiming.
Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593: CB 591-594
Facts
Claiming refugee status based on opposing China’s one-child policy (the punishment for which is forced
sterilization).
Issues
Qualifies as Convention refugee?
Holding
Sterilization is a form of persecution, but C failed to satisfy test of a well-founded fear [did not address
membership in a particular social group]
Reasoning
La Forest J. (Dissent):
 Persons facing sterilisation for denying the policy qualify as members of a particular social group
 Must consider Ward’s second category
 Starting point: whether C is voluntarily associated in a manner so fundamental to human dignity that
C should not be required to forsake it
 Distinction between being and doing is simplified, and comes only after considering whether an
issue exists concerning basic HR – should not replace Ward categories
 Refugee alleging membership in a particular social group does not have to be in voluntary
association with other persons similar to himself [had in mind Chinese students, who did not
voluntarily associate initially, but became targets of persecution post-Tiananmen Square – if you are
part of a group that then becomes subject to persecution, and hence you become resultantly subject
to persecution]
 C successfully characterised right asserted as basic right of all couples and individuals to decide
freely and responsibly the number, spacing and timing of their children – this is fundamental to
human dignity
 Central question is whether claimant is voluntarily associated with a particular status for
reasons so fundamental to his human dignity that he should not be forced to forsake that
association
Comments
We only read the dissent.
Gender
Islam v. Secretary of State for the Home Department; R. v. Immigration Appeal Tribunal and Another Ex Parte Shah,
[1999] 2 All E.R. 545 (HL): CB 595-600
Facts
I and S were Pakistani women claiming refugee status in UK on basis of well-founded fear of
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Immigration and Refugee Law, Winter 2010, Prof. Fox-Decent
Issues
Holding
Reasoning
Stephanie McKinnon
persecution if they returned
Claims based on ground of membership in a particular social group: women in Pakistan who were
maltreated by their spouses, subject to criminal charge based on false allegations (of adultery), and
unable to obtain the protection of their home state
Are I and S members of a particular social group?
Yes.
Steyn: yes
 Only relevant persecution is persecution for reasons of membership in a group, which means that the
group must exist independently of, and not be defined by, the persecution; relying on persecution to
prove existence of the group would be circular reasoning
 Cohesiveness may prove existence of a particular social group, but meaning of “particular social
group” should not be so limited
 I’s and S’s group membership depends on coincidence of (1) gender, (2) suspicion of adultery, and
(3) unprotected position – none of these involve an assertion of prosecution
 I and S are thus members of a particular social group
Hoffman: yes
 Particular social group does not imply an additional element of cohesiveness, co-operation or
interdependence.
 Agrees with La Forest in Ward that social group can include gender.
Hope of Craighead: yes
Dissent (Millett): no
 They are discriminated against not because they are members of a given social group, but
persecuted because they refuse to conform
 This does not change where persecution is sanctioned or tolerated by the state – though this may
make it easier to characterise as being based on political opinion
 The women don’t suffer persecution for who they are (married women) but for their failure to
conform to (admittedly repressive) social norms (what they do).
Comments
Sexual Orientation
Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S, [2003] H.C.A. 71 (Aust. HC):
CB 600-608
Facts
 1994-96: S&S (homosexuals) lived together in Bangladesh; conducted selves discretely
 1998: came to Australia and applied for protection visas on grounds that they had a well-founded
fear of persecution in Bangladesh by reason of their homosexuality
 Tribunal found that homosexual men in Bangladesh were a particular social group – but that if
discrete, they were not persecuted, and S&S had been discrete in the past and could be so again
Issues
Did Tribunal err in law: (1) By dividing homosexual men into two social groups – discrete and nondiscrete? (2) By failing to consider whether need to act discretely to avoid the threat of serious harm
constituted persecution in and of itself? (3) By failing to consider whether S&S would suffer serious
harm if they were outed in Bangladesh?
Holding
(1) Yes. (2) Yes. (3) Yes.
Reasoning
The High Court overturns the Board’s exercise of discretionary power.
 People suffering persecution are not under an obligation to hide or to avoid persecution by hiding or
changing who they are.
 Persecution covers many forms of harm; whatever form the harm takes, it will constitute persecution
only if, by reason of intensity or duration, persecuted person cannot reasonably be expected to
tolerate it
 Would undermine Convention if signatories required people to modify their beliefs or opinions or to
hide their race, nationality, or group membership before countries would give them protection
 Were the individuals to practice homosexuality openly, they would be persecuted.
 It is the threat of serious harm with its menacing implications that constitutes the persecutory
conduct
Comments
This case stands for recognizing sexual minorities.
Traditionally, persecution had to have materialization of harm. In this case, persecution was found to be
able to consist in the wrongful threat of harm.
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5) UNABLE OR UNWILLING: Internal Flight Alternatives (IFA)




Comes under “unwilling and unable” to avail oneself of the protection of your home state
2-pronged test from Rasaratnam (1992)
1. If possibility of IFA is raised, claimant must demonstrate that there is a serious possibility of persecution in the area
alleged to constitute an IFA
2. Then the court considers whether or not it would be reasonable in all circumstances for the person to return there.
If the Minister or a member of the IRB raises IFA as an issue, then fair notice has to be given to the claimant to allow
them to respond.
The “reasonableness” of the second prong of the test is contentious. The court will ask if it is feasible in the social and
economic circumstances (ie, a farmer moving to a city).
UNHCR IFA Guidelines (2003)
 Convention does not require or even suggest that fear of being persecuted always extends to whole territory of country of
origin
 IFA cannot be used to deny access to refugee status determination procedures
 Must look at circumstances of individual claimant and conditions of country.
 Issue of IFA should only be considered after there has been a thorough assessment of a claim and it is established that
here exists a well-founded fear of persecution in some part of the claimant’s country
 In determining whether there is an IFA:
 Relevance analysis (for prong 1 of Canada’s test)
o Is area of relocation practically, safely, and legally accessible to individual? (if any criterion is “no”, no IFA exists)
o Is agent of persecution the state? (if yes, presumption in principle that an IFA is not available)
o Is agent of persecution a non-state agent? (if risk that agent will persecute claimant in proposed area, IFA not
available)
o Would claimant be exposed to a risk of being persecuted or other serious harm upon relocation? (if yes, no IFA)
 Reasonableness analysis: can claimant, in context of country concerned, lead a relatively normal life without facing
undue hardship? (if no, no IFA) If you are from a poor, miserable place, it is not unreasonable to make you go to another
poor, miserable place (this is an assessment of relative hardship—this is the comparative approach—you have to prove
you’re special).
Critiques
 Critics say that this doctrine developed out of nothing. Nothing in the defintion of a refugee requires them to do
everything possible to avoid persecution, just what’s reasonable.
Exclusion Clauses

Incorporated by section 98 of IRPA
Sections E ond F of Article 1 of the United Nations Convention Relating to the Status of Refugees
Article 1E
E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has
taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.



For when an individual has “permanent residence”-type staus in another country. Then 1E applies and no refugee status
(ie, if the individual has a right of residence and a right of return and remain in the other country).
In Kroon v. Canada (Minister of Employment and Immigration), the court adopted an approach that compared the
rights to which the refugee claimant would be entitled with those of nationals from the article 1E country
In Shamlou v. Canada (Minister of Citizenship and Immigration), the Federal Court confirmed that “[i]f the [claimant]
has some sort of temporary status which must be renewed, and which could be cancelled, or if the [claimant] does not
have the right to return to the country of residence, clearly the [claimant] should not be excluded under Art.1E.”
Article 1F
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for
considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international
instruments drawn up to make provision in respect of such crimes.
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Stephanie McKinnon
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as
a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.

Logic: certain acts are so rare as to render perpetrator undeserving of protection as a refugee; asylum not to be abused to
avoid legal accountability for acts
Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (CA): CB 620-627
Facts
1988: M forcibly conscripted into Salvadoran army as a 16-year-old
M asked to stand watch over a prisoner who was tortured and killed; he witnessed but rendered no
assistance, believing that he would have been killed had he done so
Later participated in five armed confrontations with guerrilla forces, having during training pledged
willingness to kill all guerrillas and civilians believed to be guerrilla supporters; he participated in the
killing of civilians
M deserted the army and fled El Salvador – came to Canada – claimed Refugee status
Issues
Should he be excluded from making Refugee claim because of his involvement in war crime (torture)
under 1F(a)?
Holding
No (conscripted and fled quickly).
Reasoning
Crime against humanity
Guilt by association
Mere membership in an organisation involved in int’l offences is insufficient basis on which to invoke
exclusion clause
Exception: a group whose membership is premised on achieving political/social ends by any means
necessary
Membership in a military organisation involved in armed conflict with guerrilla forces is within ambit of
general rule, not exception
Accomplice
The relevant question is whether Moreno was an accomplice (which would bar him from refugee status
under 1Fa) or an innocent bystander.
The court applied the criminal law test from Dunlop and Sylvester (1979, SCC): mere presence at the
scene of a crime is insufficient to ground culpability; more is needed to qualify as aiding/abetting
The law does not require heroism.
To found guilt as an accomplice, must find “personal and knowing participation in persecutorial acts”
and shared common purpose between principal and accomplice
Even if exclusion clause is applied, Board should still assess refugee claim
Comments
Standard of Proof
Applicability of exclusion clause does not depend on whether claimant has been charged or convicted of
acts set out in Convention – instead, Minister must have “serious reasons for considering” (i.e., a
credible, objective basis)
This standard is lower than criminal (“beyond a reasonable doubt”) and civil (“balance of probabilities”)
standards
Moreno can be contrasted with Ramirez. The facts in Ramirez are distinguishable because Ramirez was
too long a member of the army. He was in many battles, he was promoted, he knew or should have
known he was a party to torture.
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982: CB 641-645
Facts
Drug trafficker.
Issues
Excluded under 1F(c)?
Holding
No.
Reasoning
The purpose of the exclusions are to exclude people who create refugees (serious, sustained or
systematic violations of HR that amount to persecution in a non-war setting).
Drug trafficking is not contrary to principles and purposes of the UN. Looking for a serious violation of
fundamental HR principles (explicit declaration by UN or which the court is able to characterize as such
by itself).
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Immigration and Refugee Law, Winter 2010, Prof. Fox-Decent
Comments
Stephanie McKinnon
“Serious … non-political crimes” are included in art. 1F(b), and therefore excluded from art. 1F(c)
Cessation Grounds



Refugee status may cease in two ways:
1) through the actions of the refugee or
2) through fundamental changes in the objective circumstances within the country of origin upon which the refugee
status was based.
This follows from the conception of refugee law as a temporary protection designed to last only as long as the protection
afforded by the Refugee Convention is needed
Section 108(1) of the IRPA provides the authority for the minister of citizenship and immigration to apply for cessation
of a refugee claim with regard to a person already granted protection in the following circumstances:
(a) the person has voluntarily reavailed themself of the protection of their country of nationality;
(b) the person has voluntarily reacquired their nationality (renounced Canadian citizenship);
(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;
(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect
of which the person claimed refugee protection in Canada; or
(e) the reasons for which the person sought refugee protection have ceased to exist.
UNHCR Guidelines elaborate key element relevant to assessing extent and durability of change before cessation can be
applied (be alert to declaring conditions have changed if the country is still really in flux)
 Developments appearing to evidence significant and profound changes should be given time to consolidate before
cessation decision is made
 If changes are peaceful and take place constitutionally, can decide after relatively short time
 If changes are violent, longer time must have elapsed



Section 108(4) provides an exception – the compelling reasons defence
o Section 108(1)(e) does not apply where there are compelling reasons arising out of previous persecution,
torture, treatment or punishment for refusing to avail themselves of the protection of the country which they
left, or outside of which they remained, due to such previous persecution, torture, treatment, or punishment.
Suleiman (2005, FCA): applicability of compelling reasons exception under s. 108(4) does not require that persecution
be “appalling”
Cessation only applies to permanent residents—you can’t deport citizens
Consolidated Grounds






Claims for protection under IRPA can be considered pursuant to s. 96 (refugee protection) and/or s. 97(1)(a) and/or (b)
(persons in need or protection) – if based on all 3, labelled “consolidated grounds”
Risk Threshold: Risk of torture, death, or cruel and unusual treatment or punishment (s. 97) must be more likely than
not, even though risk of persecution (s. 96) need only amount to a reasonable chance or more than a minimal
possibility—the s. 97 standard is a FC invention (Li).
The burden of proof is still a balance of probabilities that you are more likely than not at risk for the particular type of
persecution
The benefit is that under s. 97 there is no need to link persecution to a ground of persecution.
The consequences of the persecution are so grave, that the threat of them is enough
Used rarely because it is difficult to make out the particular kind of persecution
Refugee Protection Division File TA1-24763 (11 February 2003): CB 648-650 (XXXXXXXXXX)
Facts
1987: Claimant (Colombian businessman) started to be subject to extortion that he ignored
1989: extortion demands started to become more violent and to affect his family; claimant changed his
name and residence
1990: more demands; claimant changed residence
1998: more demands and family threatened; claimant sent family out of country and followed in 1999
Issues
Does claimant merit protected status on consolidated grounds (s. 97)?
Holding
Yes
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Reasoning
Comments
Stephanie McKinnon
 On balance of probabilities, claimant is credible
 Extortion in Colombian context has potential for serious harm including possible risk to life
 Kidnappings and extortion threats in Colombia can lead to death or forced disappearance
 As Colombian businessman, claimant belongs to a category marked for extortion
 State cannot protect him; security forces overwhelmed and have insufficient infrastructure
 Identity of extortionists is open to question  not a Convention refugee
 Claimant has demonstrated a risk to life  qualifies for protection under s. 97
“serious risk of torture” = “reasonable chance”
Enforcement
Removal Orders
Identified in IRPA Regulations ss. 223-226:
 Departure Order: 30 days to leave voluntarily (otherwise it turns into a deportation order). This is the standard.
 Deportation Order: subject to warrant, border services will apprehend you and deport you where they choose (usually
the country of origin but could be any of the non-voluntary compliance destinations). It’s a free ride, but you never get
to come back without written authorization.
 Exclusion Order: in between the other two. After you leave, you’re restricted from coming to Canada for 1-2 years. It’s
usually for if you’ve been deemed inadmissible for a particular ground (like bribery).
Non-voluntary compliance  destination may be (1) country from which person came to Canada; (2) country of last
permanent residence; (3) country of which the person is a citizen; or (4) country of person’s birth
Inadmissibility




Determination of inadmissibility may prevent entry of FN outside Canada or lead to removal of person in Canada
Normally begins with IO preparing a report, forwarded to minister’s delegate  referred to IRB for admissibility hearing
(here, the IRB acts as a truly independent body with its own procedures – but exceptionally, minister’s delegate can issue
a removal order directly)
Person seeking refugee protection also subject to this process, but removal order is conditional: the criteria don’t
automatically translate into a removal order unless they are found ineligible (early in the process) or after found to be a
Convention refugee (though then subject to fewer inadmissibility criteria: HR violations, serious/organised criminality)
Sections 33 to 42 identify grounds of inadmissibility:
o Security grounds (s.34)
o Human and international rights violations (s.35)
o Serious or non-serious criminality (s.36)
o Organized criminality (e.g. Mafia) (s.37)
o Health reasons (under s.97 a person cannot make a claim if the risk is based on their health, e.g. person’s
country of origin doesn’t have adequate health facilities) (s.38)
o Financial considerations (e.g. not having requisite minimum income)
o Misrepresentation (can effect principal applicant or people they wish to sponsor later)
o Non-compliance with the Act (relatively minor) (s.41)
o Having an inadmissible family member (s.42)
Appeals to IAD
 IRPA s. 63: PRs and those with PR visa have right to appeal removal order to the IAD (unavailable under s. 64 where
individual is inadmissible on grounds of security, violating HR or int’l rights, organised criminality, or serious
criminality – though H&C application to IAD [under Regulations pursuant to s. 43] and to Minister [under s. 25] still
available)
 Section 64 also prohibits appeal by a sponsor of family class member in case of misrepresentation unless person in
question is spouse, CML partner, or child of sponsor (IAD may allow or dismiss appeal or, where H&C grounds warrant
it, stay removal order: ss. 66-69)
 Chieu (2002, SCC): “all the circumstances of the case” should be considered broadly, including consequences on return
Criteria of inadmissibility
 IRPA ss. 33-43 identify grounds of inadmissibility
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Stephanie McKinnon
Section 33 provides that grounds apply to act and omissions, including facts for which there are “reasonable grounds to
believe” that they occurred
o Mugesera (2005, SCC): “Reasonable grounds to believe” standard requires more than mere suspicion, but
less than balance of probabilities; reasonable grounds will exist where there is an objective basis for the
belief that is based on compelling and credible information
Health Grounds



IRPA s. 38 identifies three health-related grounds of inadmissibility
o Health condition likely to be a danger to public health (level of risk: “likelihood”)
o Health condition likely to be a danger to public security (level of risk: “likelihood”)
o Health condition that might reasonably be expected to cause excessive demand on health or social services
(level of risk: “reasonable expectations”)
Excessive demand is (see Regulations s. 1) EITHER costs likely to exceed average Canadian per capita health and social
service costs over 5 years (10 years if you have a chronic illness) OR demand that would add to existing waiting lists,
increasing mortality and morbidity for PRs and citizens
IRPA s. 38(2) exempts specified groups from excessive demand provisions
Hilewitz v. Minister of Citizenship and Immigration, [2005] S.C.J. No. 58 (SCC): CB 676-687
Facts
 H (from South Africa) and family never resorted to publicly funded services for their intellectually
disabled son
 H applied for PR status as an investor, and had substantial financial resources to qualify
 Medical officer recommended denying admission because of the intellectual disability of a
dependent child, and corresponding entitlement to social services (“requirements far in excess of
those of an average Canadian … will place an excessive demand on Canadian social services”)
 Visa officer found H to be credible, and that he would make a valuable contribution to Canada
 Visa officer sent H a “fairness letter” advising him that questions had been raised regarding his
application and giving him an opportunity to respond with relevant evidence
 H sent documents stating that his son in some respects functioned with greater maturity, had never
used publicly funded schooling, that family had established a special school for him and others with
similar disabilities; also indicated that he would purchase a business where his son could work
 Visa officer did not read letter, but forwarded it to medical officer, who repeated initial assessment
 Visa application refused, including insufficient H&C grounds
Issues
Did the IO have to take Hilewitz’s finances and the documents he sent to the IO into consideration?
Holding
Yes.
Reasoning
Investor class is to a large extent concerned with individual’s assets  incongruous to interpret
legislation such that assets qualifying individuals for admission are ignored in determining admissibility
of their disabled children
The threshold was whether it was “probable” not merely “possible” that Hilewitz would create an
excessive demand on social services (this isn’t a healthcare system burden). Parents had always paid in
past, said they would pay in future.
It was an error of law for the IO to fail to read the documents Hilewitz sent to prove his son wouldn’t be
a drain. It was not the doctor’s responsibility to assess those documents (the doctor was just responsible
for determining if there is a condition there or not… of course there was a condition both before and after
H sent documents, it’s not like the kid changed).
Comments
Standard of review was correctness. Foxy-D thinks there’s an argument here for reasonableness.
Criminality
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IRPA qualifies criminality, serious criminality, and organised criminality as grounds of inadmissibility (ss. 36-37)
PRs and FNs inadmissible on grounds of serious criminality if were convicted of an offence punishable by a maximum
term of at least 10 years, or outside Canada if equivalent, or even outside Canada (committed or convicted) if punishable
by same term
FNs inadmissible on grounds of serious criminality if were convicted of indictable offence or two offences, or even
outside Canada (committed or convicted), or of any offence prescribed by regulations
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Pre-Removal Risk Assessment
IRPA s. 112
 Makes concrete the principle of non-refoulement
 Involves a determination by the IO of whether or not the individual faces a risk of serious harm
 Even with a risk of harm, a person can be refouled if they are inadmissible due to a really bad crime
 If the refugee application is rejected, the IO only looks at fresh evidence (provided that evidence was not reasonably
available at the time of refugee determination)
 If there was no refugee application, there must be a hearing about the risk of torture, cruel, inhumane, or degrading
treatment, or death.
 PRRA is separate (and narrower) from a s. 25 H&C consideration.
Varga v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1570 (QL) (FC-TD): CB 739-743
Facts
V (husband and wife) and child are Roma from Hungary; now subject to removal order when PR
application denied
Since arriving in Canada, had 2 more children; these 2 children are Canadian citizens and thus not
subject to removal
PRRA Officer found that Hungary offered state protection and that it was not in his mandate to consider
Canadian citizens (the children)  required V and other child to leave immediately
Issues
(1) Did PRRA Officer err in not considering interests of the Canadian-born children? (2) Did PRRA
Officer exceed jurisdiction or breach natural fairness in requiring immediate departure?
Holding
(1) Yes. (2) Yes.
Reasoning
PRRA Officer must be “alert, alive and sensitive” to the condition of Canadian-born children who may
be left behind, or taken with a parent subject to a removal order (must consider child’s short-term
interests)—even though PRRA only considers the people subject to a removal order and the children
weren’t subject to a removal order (only the parents).
Interests of children are not determinative but must be considered and given some weight in a PRRA
application
Comments
Security Certificates
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This regime applies exclusively to non-citizens
Procedure established in IRPA ss. 77-80
Alternative to the regular process, initiated by MCI and Minister of Public Safety and Emergency Preparedness when
they exercise authority granted by IRPA s. 77 and both ministers sign a security certificate – must believe that FN or PR
is inadmissible to enter/remain in Canada on grounds of security, among others
An automatic detention order follows the Minister signing the security certificate – i.e.: the person is detained in some
sort of prison (PR are only detained if Minister believes they are threat to nat’l security or will not show up at trial)
Foreign nationals (after 120 days) and permanent residents (within a 48 hour period) are permitted to challenge the
reasonableness of the certificate
FC judge determines reasonableness of certificate
o If judge believes disclosure of information on which certificate is based would be injurious to nat’l security or
safety of a person  must ensure confidentiality  evidence heard in absence of person named; undisclosed
evidence; secret trial (in camera and ex parte), with no one acting on named persons’ behalf
o If FJ judge believes certificate is unreasonable  quashed
o If FJ judge believes certificate is reasonable  conclusive proof of inadmissibility under s. 81  removal order
Certificates are more often found to be reasonable
Removal order cannot be appealed; no possibility of PRRA
Judge must provide named person with summary of case against him, but this does not disclose material that might
compromise nat’l security (nor does it need to disclose the information upon which the judge is actually basing his
decision)
PRs
o May be held in detention (Minister must believe they are threat to nat’l security or will not show up at trial)
o Detention must be reviewed within 48 hours
o Entitled to review of detention every six months
FNs
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o Must be detained
o Must apply for review, but cannot do so for 120 days after FC judge’s finding of reasonableness
o Negative review can lead to released (but even if released, may be deported)
Named person loses protection of principle of non-refoulement under IRPA s. 115(1) if Minister issues danger opinion
Danger Opinion
The Minister of Public Safety and Emergency Preparedness can also issue an opinion that a refugee claimant is a danger to
the public of Canada (s.101(2)(b) IRPA)
Those who have committed criminal offences outside Canada are rendered ineligible to have their refugee claim determined
by the IRB.
Right of non-refoulement -- A “protected person” (determined after a PRRA) has a right to not be returned to a country where
they’d be at risk of persecution, torture or cruel or unusual treatment (s.115(1))
HOWEVER, where a person is inadmissible on grounds of security, violating human or int’l rights, or organized criminality
and the minister thinks he shouldn’t stay on the basis of the nature and severity of acts committed, then the person does NOT
have the right to non-refoulement.
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 748-760
Facts
Tamil Tiger financier detained on security certificate.
SC deemed reasonable by judge. Danger opinion issued. Deportation order issued.
Issues
(1) Is the terms “danger to the security of Canada” unconstitutionally vague? (2) Does deportation for
membership in a terrorist organisation unjustifiably violate freedom of expression/association? (3) Are
deportation procedures constitutionally valid?
Holding
(1) No. (2) No. (3) No.
Reasoning
 A person constitutes a “danger to the security of Canada” if (s)he poses a serious threat to the
security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one
country is often dependent on the security of other nations
 Threat must be “serious”: grounded on objectively reasonable suspicion based on evidence and in
the sense that the threatened harm must be substantial rather than negligible
 Membership or participation in a terrorist organisation is not constitutionally protected
expression/association
 If refugee establishes that torture is a real possibility, Minister must provide him with all relevant
information and advice she intends to rely on, provide him with an opportunity to address that
evidence in writing, and after considering all the relevant information, issue responsive written
reasons
 Deportation to face torture generally violates Charter s. 7, but there may be exceptional cases where
it is constitutional
Comments
Really about constitutional (sending someone back to torture) and administrative (procedural
requirements) issues. See the Judicial Review section.
Charkaoui v. Canada (Minister of Citizenship and Immigration), [2007] 1 S.C.R. 250
Facts
 C is a PR; Harkat and Almrei are FNs recognised as Convention refugees
 All detained based on allegations that they were a threat to the security of Canada by reasons of
involvement in terrorist activities
Issues
Does IRPA procedure for determining reasonableness of certificate unjustifiably infringe Charter s. 7?
Holding
Yes.
Reasoning
Section 7:
Interest engaged: liberty and security (because possible consequence is returning someone to torture)
Distinguishes Medovarski because procedures surrounding deportation and consequences of deportation
can implicate interests even if deportation itself does not.
In Accordance with Fundamental Justice: procedural justice
Right not to a full trial, but right to a fair hearing.
Ex parte in camera hearing gives the appearnace of the judge as a party to the hearing as the judge
interrogates the Crown (this is an intrinsic conflict of interest). This procedure does not live up to
fundamental justice for two reasons:
1) Judge must be aware of all relevant facts and all relevant law
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Judge and Crown counsel are not enough for the judge to know all the facts and the law
Judges in an adversarial system are not allowed to inquire into facts (the way judges in
inquisitorial systems can)
Rules of evidence are excluded from the scheme (so a judge may rely on evidence that wouldn’t
be admissible in a criminal trial—think of the rules on hearsay, etc)
The burden of proof: there must be reasonable objective grounds for thinking the person is or
was associated with a terrorist organization or commited or likely to commit a terrorist act. The
burden does not rest on the Crown proving a particular ACT. Mere association is enough.
Without someone representing the named person, you can’t be sure that all the legal arguments
are presented. Entirely up to the judge to find arguments in faour of the named person.
2) The named person has the right to know the case they have to meet
 This is the most scathing problem
 After impartial third party adjudicator, strongest procedural fundamental justice requirement is
that an accused know the case he has to meet
 Otherwise the Crown’s case is uncontested
 In security certificate procedure, this principle has been effectively “gutted”
Section 1
Is this the best we can do? No.
Fails section 1 mostly for:
Minimal Impairment
The Special Advocate system in the UK does better. Special Advocate is not the named person’s lawyer.
They are security background vetted lawyers one of whom is chosen by the named person (but the judge
has final say). The advocate then goes behind closed doors with the Judge and the Crown to argue on
behalf of the named person. However, the advocate cannot go back and talk to the client without the
judge’s express permission.
Comments
(Charkaoui also challenges security certificates based on ss. 9, 12, 15 and the rule of law as an unwritten
constitutional principle, but we only looked at s. 7)
Note: there’s no presumption of innocence, no double jeopardy, limited access to the facts.
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