CANADIAN IMMIGRATION & REFUGEE LAW - CHAPTER 1

VISA OR PERMIT

A document that permits the holder to enter Canada for a specific purpose either temporarily or permanently.

IRCC AND CBSA FUNCTIONS:

- Admitting immigrants: permanent & temporary residents, - Resettling, protecting, & providing safe haven for refugees & al., - Helping newcomers adapt to Canadian soc, & become Can citizen, - Managing access to Canada to protect safety, security, & health of Canadians & integrity of Canadian laws.

INTERPRETATION TOOLS - IMMIGRATION REGULATIONS & RULES: Explanatory notes are helpful to Determine how the regulations are to be applied, they cover the following points: - description of regulation, including purpose & function, - considered Alternatives to the regulation,

- Benefits and costs of regulation to the public, - Consultations with interested parties and the public in drafting Reg, - compliance and enforcement issues, - Gender-based analysis of impact of regulation, - A contact person.

CANADA, IN GENERAL, SUPPORTS ENTRY OF FOREIGN NATIONALS WHO:

- Have valuable skills needed by Canadian employers, - Have means, ability, and ambition to become entrepreneurs in Can, - Are family members/dependants of immigrants, & - Have fled to Canada for protection from persecution by government of country of origin.

STATUTES AND REGULATIONS - STATUTES: Are written codes of law that typically deal with a particular subject matter.

- Immigration & Refugee Protection Act, - Citizenship Act,

REGULATIONS UNDER IRPA: - Immigration and Refugee Protection Regulations SOR/2002-227, - Immigration Division Rules SOR/2002-229, - Federal Courts Citizenship, Immigration and Refugee Protection Rules SOR/93-22,

- Order Designating the Minister of Citizenship and Immigration as the Minister Responsible for the administration of that Act SI/2001-120, - Protection of Passenger Information Regulations SOR/2005-346.

POLICIES: Are formal statements explaining details of new IRB initiatives, e.g. Outlining roles and responsibilities. Two 2 examples:

- Policy for Handling IRB complaints regarding Unauthorized, paid representatives. April 2008; & - policy on the use of Jurisprudential Guides, March 2003, which governs chairperson's authority to identify a decision as jurisprudential guide.

CANADA, IN GENERAL, DOES NOT SUPPORT ENTRY OF FOREIGN NATIONALS WHO:

- Pose a threat to Canadian security, - Have history of criminality/connection to organized crime, or - Are likely to place a heavy burden on Canada's social support systems without contributing to Canadian economy.

DIRECTIONS in section 3,3 FOR DECISION-MAKERS TO INTERPRET AND APPLY IRPA IN A WAY THAT: (cont'd): - decisions under IRPA are consistent with Charter, equality of English & french languages & freedom from discrimination,

- enhance vitality of English/French minority communities, - complies with international human rights instruments to which Canada is signatory.

IRPA OBJECTIVES WITH RESPECT TO REFUGEES: IRPA section 3,2: - priority of IRPA is to save lives & protect displaced/persecuted, - fulfill Canada obligations to refugees & assist with settlement,

- grant fair consideration to newcomers claiming persecution, - offer safe haven to people w/well-founded fear of persecution, - fair & efficient procedures to maintain integrity of Canadian refugee protection system, respect for human rights/fundamental freedoms,

IRPA OBJECTIVES WITH RESPECT TO IMMIGRATION: (cont'd): - facilitate entry of visitors, students, temporary workers, for trade, commerce, tourism, cultural, educational, scientific activities. - protect health/safety of Canadians & security of Canadian society,

- promote international justice/security by respect to human rights, denying entry to criminals or to whom poses security risks, - cooperate with provinces to recognize foreign credentials of permanent residents.

DIRECTIONS in section 3,3 FOR DECISION-MAKERS TO INTERPRET AND APPLY IRPA IN A WAY THAT: - furthers domestic & international interests of Canada,

- promotes accountability & transparency making immigration & refugee programs known, - facilitates cooperation between government, provincial governments, foreign states, international organiz, non-gov org.

IRPA OBJECTIVES WITH RESPECT TO REFUGEES: IRPA section 3,2: (cont'd): - support self-sufficiency/ social/economic well being of refugees, facilitating reunification of families,

- protect health/safety/ security of Canadians & Canadian society. - Promote international justice/security, denying access to Canadian territory to persons who are security risks/serious criminals.

IRPA OBJECTIVES: with respect to immigration, section 3,1: - maximize benefits of immigration, - enrich/strengthen Canadian society & respect Canadian character, - support/assist development of minority language communities,

- support development of strong/prosperous Canadian economy, sharing immigration benefits across all regions, - reunite families in Canada, - integrate permanent residents, recognizing mutual obligations, - support consistent standards and prompt processing.

IMMIGRATION AND REFUGEE BOARD: POLICY INSTRUMENTS:

1. Chairperson's Guidelines, 2. Jurisprudential Guides, 3. Persuasive Decisions, 4. Policies, 5. Chairperson's Instructions.

LEGISLATIVE HISTORY: Currently, the two 2 most important pieces of legislation with respect to Canadian migration are:

1. IMMIGRATION AND REFUGEE PROTECTION ACT IRPA, & 2. CITIZENSHIP ACT CA Both guide decisions about who may come to Canada & who may stay & enjoy all the rights of citizenship.

MANAGEMENT OF IMMIGRATION AND REFUGEE PROGRAMS: Two 2 departments of the federal government share administration the IRPA and regulations:

1. Immigration, Refugees and Citizenship Canada, IRCC, former CIC, 2. Canada Border Services Agency CBSA.

SELECTED CHARTER CASES: 1. Andrews v. Law Society of British Columbia, section 15. 2. Singh v. Minister of Employment and Immigration, section 7.

1. Legitimate discrimination against deported non-citizen. 2. Only oral hearing is fair to assess refugee's claimant credibility.

PATTERNS OF IMMIGRATION: Canada's first immigrants were probably ancestors of Canada's First Nations peoples. 2 theories: Asian peoples arrived through a land bridge from Siberia into Alaska, now the Behring Strait; Asian seafarers arrived by boat.

17th century: European immigration began with French settlers and fur traders, 18th century: a wave of British loyalists arrived from USA, 19th century: immigrants were mostly from Britain.

THE CONSTITUTION: Is the supreme law of the land.

1867: British North America Act: Constitution Act, 1867, 1982: Canada Act: Canada's Parliament exclusive power to amend it. 1982: Constitution Act containing the Charter of Rights & Freedoms.

LEGISLATIVE HISTORY: 1869, prohibition of certain kinds of immigration, 1889, returning immigrants to countries of origin, 1906, Immigration Act, very strict, 1908, amendment to this Act, 1910, immigration Act,

1919, amendments to the Immigration Act, 1922, amendments to the Immigration Act, relaxed it, 1947, Canadian Citizenship Act, 1952, immigration Act, 1976, new Immigration Act.

INTERNATIONAL LAW GOVERNING IMMIGRATION INCLUDES: Multinational treaties and conventions & with specific countries, e.g. NAFTA with US and Mexico. Canada has Committed to structure domestic law in consistency with legislative models in like-minded countries.

1951: United Nations convention Related to the Status of Refugees, 1967: Protocol relating to the Status of Refugees, 1967: Convention on the Protection of Children, 1967: Cooperation in respect of Inter-country Adoption, Hague Convention.

LEGISLATIVE HISTORY:

1977, New Citizenship Act, 1985, Citizenship Act, RSC 1985, c C-29. 2001, Immigration & Refugee Protection Act, SC 2001, c 27.

CANADA-QUEBEC ACCORD: Since 1971: 1991: Canada-Quebec Accord: the most significant and most comprehensive immigration agreement between Canada & a province.

2 important objectives for Quebec: Objective 2: Québec's demographic importance, integration of immigrants, respecting distinct identity of Quebec, Objective 4: Québec's responsibility: number, selection, reception, integration of immigrants.

THREE PILLARS OF IMMIGRATION: 3 considerations: 1. Economic, e.g. Skilled workers, skilled trades, provincial nominees, business immigrants,

2. Family, e.g. Sponsorship of spouse or common law partner, dependants, parents, grandparents, 3. Refugee/humanitarian, e.g. Resettlement, refugee determination in Canada.

SELECTED CHARTER CASES: (cont'd): 3. Canada Minister of E & I v. Chiarelli, section 7. 4. Suresh v. Canada Minister of Citizenship & Immigration.

3. Section 7 doesn't shield non-citizens/permanent residents with criminal activity/record in Canada from deportation. 4. Atypical justified deportation of refugee facing big risk of torture.

FOR ECONOMIC CLASSES, YOU CAN pre-apply to be guaranteed that you will be considered. Number of points people need in express point system. To reduce cases for government. In force since few weeks ago.

480 minimum, Maximum 1200 points. E.g. You have 500 points if you have a job offer in Canada. Then you do the proper application, and then go through all the process and adding more points.

JURISPRUDENTIAL GUIDES: Authorized by section 159,1,h IRPA. To facilitate consistency in decision-making re similar cases.

A jurisprudential guide reiterates the reasoning of the IRB in a specific decision so that it can be applied in similar cases. Are not mandatory, but decision makers must comply in cases with similar facts or justify non compliance.

REASONABLE LIMITS ON RIGHTS AND FREEDOMS: Section 1 of Charter: all rights and freedoms are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." E.g. violate freedom of expression to avoid children's pornography.

A law will be struck down only when both of 2 conditions exist: 1. Law violates a Charter right or freedom, 2. Law cannot be justified as reasonable limit in free & democratic Society: Oakes Test.

FOREIGN NATIONAL

A person from another country who is neither a Canadian citizen nor a permanent resident in Canada.

PERMANENT RESIDENT

A person who has been granted permanent resident status in Canada and who has not subsequently lost that status under IRPA section 46. Also known as a "landed immigrant" under older legislation

TEMPORARY RESIDENT

A person who has permission to remain in Canada on a temporary basis, the main categories are students, temporary workers, and visitors.

CITIZEN

A person who has the right to live in a country by virtue of birth or by legally acquiring the right.

IMMIGRATION AND REFUGEE BOARD: TRIBUNAL RULES: Tribunal rules are generally binding. section 16,1 IRPA: RULES OF PROCEDURE for IRPA Divisions:

Adjudication Division Rules, SOR/93-47, Immigration Appeal Division Rules, SOR/2002-230, Immigration Division Rules, SOR/2002-229, Refugee Protection Division Rules, SOR/2012-256, Refugee Appeal Division Rules, SOR/2012-257.

CITIZENSHIP Act: All citizens share the same rights and privileges, and all share the same obligations and duties. Citizenship Act permits dual citizenship, allowing Canadians to be citizens of another country as well as of Canada.

All persons born in Canada are Canadian citizens. exception: diplomats' children. Children born outside Canada having at least 1 Canadian parent are automatically citizens. CA has 2 regulations: Citizenship Regulations SOR/93-246 & Foreign Ownership of Land Regulations SOR/79-416.

IMMIGRANT OR REFUGEE? Generally used, the term "immigration" often refers to both immigrants and refugees.

An Immigrant is a person from another country who wishes to live in Canada permanently, whereas A refugee is a person fleeing persecution who comes to Canada to seek protection.

WELL FOUNDED FEAR OF PERSECUTION

Based on race, religion, nationality, political opinion, or membership in a particular social group, persons in risk of torture or cruel and unusual treatment or punishment.

HISTORY OF IMMIGRATION LAW IN CANADA: Prior to the federal IMMIGRATION ACT of 1906, immigration laws were provincial. Some provinces had enacted legislation primarily aimed at restricting immigration of visible minorities.

Canada's immigration scheme is founded on three 3 pillars: economic considerations, family considerations, & refugee/humanitarian considerations. To balance self-interest with generosity and compassionate willingness to provide a safe haven to people in need.

PROGRAM MANUALS: operational manuals to guide activities of immigration and citizenship officers. They consult the manuals when applying IRPA, Citizenship Act, & their regulations

Citizenship Policy CPs, Enforcement ENF, Temporary Foreign Workers Guidelines FW, Immigration Legislation IL, Information Sharing IN,

PERSUASIVE DECISIONS: Are decisions identified by the head of the division, such as the head of the Refugee Protection Division, as being well-reasoned.

Decision makers re encouraged to follow the same reasoning in their decisions, but are not required to justify their choice of not following those precedents.

FEDERAL POWERS: (continued):

E.g. Postal service, census & statistics, currency & coinage. Residual power: to make laws for the peace, order, & good government on Canada in matters not under provincial power.

CANADA-QUEBEC ACCORD: Quebec may impose additional selection criteria for immigrants to Quebec & is responsible for integrating them into community.

Federal government: responsibility: setting minimum national standards for admission of immigrants & visitors, and for processing applications & physical admission to Canada at ports of entry.

DIVISION OF POWERS: CONSTITUTION ACT, 1867: Created a federal system of government. Federal government has jurisdiction over matters of national interest and over territories.

Federal powers, Provincial powers, Section 95: Concurrent powers of legislation.

CHAIRPERSON'S GUIDELINES: not mandatory but almost... Section 159,1,h IRPA: Guiding principles for resolving cases and to further the government's strategic objectives. Chairperson identifies decisions as important precedents.

Guideline 1: Civilian non-combatants fearing persecution in civil w... Guideline 2: Detention, Guideline 3: Child refugee claimants, procedural & evidentiary issue, Guideline 4: Women refugee claimants, fearing gender-re persec... Guideline 6: Scheduling/Changing date/time of proceeding,

CHAIRPERSON'S GUIDELINES: (cont'd): Found in IRB WEBSITE, under Legal and Policy References.

Guideline 7: concerning preparation & conduct of hearing in RPD, Guideline 8: concerning procedures with re to vulnerable persons appearing before IRB.

INTERPRETATION TOOLS - POLICY INSTRUMENTS: Codify informal policy or create new policy. Both IRCC, CIC, & IRB use a variety of policy instruments.

IRCC, CIC POLICY INSTRUMENTS: 1. Policy notes, 2. Program manuals, 3. Operational Bulletins, OBs.

IMMIGRATION AND REFUGEE PROTECTION ACT IRPA: overview: Immigration and Refugee Protection Act and its regulations, & Refugee Protection Regulations. Are based on non-discriminatory principles & grounded in values contained in the Charter.

IRPA: June 28, 2002, replaced Immigration Act 1976. New provisions to increase national security and public safety,,balanced with provisions to make it simpler for admissible persons to enter Canada.

CIC CHANGED ITS NAME to IRCC

Immigration, Refugees and Citizenship Canada (IRCC).

CIC changed its name to IRCC

Immigration, Refugees and Citizenship Canada (IRCC).

IRCC, CIC POLICY INSTRUMENTS: PROGRAM MANUALS: (cont'd): Updated through Program Delivery Instructions.

Inland Processing IP, Reference IR, Overseas Processing OP, Protected Persons PP, & Identity Management IM.

ROLE OF ADMINISTRATIVE LAW: (cont'd): On appeal, a court may overturn a decision if it finds the decision was wrong: based on erroneous interpretation/application of law. Appeal involves replacing a tribunal's decision with a court's decision.

It is a principle of administrative law that courts should defer to administrative decisions made by government officials and tribunals, because they possess expertise in Their particular regulatory regimes, such as immigration and refugee law.

POLICY NOTES:

Memoranda used to address issues that are temporary in nature or limited to a specific region.

ADMINISTRATIVE LAW: Is a branch of public law concerned with the legal rules and institutions used to regulate and control the exercise of state power in its relations with citizens.

Much of immigration law is administrative law because immigration law governs how government administrators and employees, i.e. public servants, exercise decision making powers granted to them under IRPA.

PLANNING IMMIGRATION: (continued):

Number of permanent residents for humanitarian/compassion, Languages of permanent residents, Times officers let persons in using discretional power, Gender-based analysis of impact of IRPA.

INTRODUCTION

Only a lawyer and immigration consultant can advice immigrants, But if they need to appeal to the board a paralegal can.

IRPA TABLE OF CONTENTS: Part 1: Immigration to Canada, Part 2: Refugee Protection, Part 3: Enforcement, Part 4: Immigration and Refugee Board,

Part 5: Transitional Provisions, consequential and related amendments, coordinating amendments, repeals, and coming into force. Schedule: sections E&F of article 1 UNCRSR, Schedule: Article 1 of CAT and OCIDTP.

CITIZENSHIP ACT TABLE OF CONTENTS: Sections 1 & 2 set out short title and definitions, Part I: the Right to citizenship, Part II: Loss of citizenship, Part III: Resumption of citizenship,

Part IV: certificate of citizenship, Part V: Procedure, Part V.1: Judicial Review, Part VI: Administration, Part VII: Offences.

CITIZENSHIP ACT TABLE OF CONTENTS: (cont'd):

Part VIII: Status of persons in Canada, Schedule: Oath or affirmation of citizenship.

GOVERNMENT POLICY: The objectives and operation of government policy must be in compliance with legislation and regulations. Government policy documents are often available to the public on government websites.

Policies can be formal or informal & they can be written or unwritten. E.g. Is CIC, IRCC, Policy to give priority to processing and finalizing within six 6 months applications from those who are applying under the family class for spouses, common law, and conjugal partners, & dependent children.

PROVINCIAL POWERS: Section 92 of Constitution Act, 1867, over matters of local or private nature in province:

Property laws, Civil rights, contract, tort, Hospitals, Local trade, public works, Municipalities.

CHAIRPERSON'S INSTRUCTIONS

Provide formal direction to individual IRB staff. They are more narrow and specific than the policies described above.

FEDERAL POWERS: Most of them are set out in section 91 of the Constitution Act, 1867.

Purpose: to apply the same legal standard across the country. Include authority to regulate subjects as naturalization and aliens, in section 91,25, national defence, and criminal law...

EXAMPLES OF THE LAW-MAKING POWERS OF THE FEDERAL AND PROVINCIAL LEVELS OF GOVERNMENT: IRPA:

Section 3,1,c: objective: economy benefits of immigration are shared, Section 3,1,j: objective: cooperation for newcomers rapid integration, Section 8,1: federal-provincial agreements, Section 10: cooperation/consultation on immigration/refugee protection policies/programs in provinces.

SECTION 95: CONCURRENT POWERS OF LEGISLATION: Constitution Act, 1867: respecting Agriculture & Immigration: special provision for federal and provincial governments sharing power.

Section 95 regarding Immigration: Provincial Legislature for immigration into the province & Parliament of Canada for immigration into one or all provinces. Immigration Federal law prevails if conflicts with immigration provincial law.

PLANNING IMMIGRATION: Under section 94 of the IRPA, minister must table annual report to Parliament about how CIC/IRCC, has managed immigration program under the IRPA, including:

Selection of foreign nationals, Number of Permanent residents previous year & future projections, Number entered Canada in previous year on fed-Prov agreements,

INTERPRETATION TOOLS - CITIZENSHIP REGULATIONS

Set out the details for processing citizenship applications. E.g. Specific criteria for gramting, renouncing, or resuming Canadian citizenship, and for the citizenship test. Information about oath of citizenship, procedures for citizenship ceremonies, & fees.

IMMIGRATION AGREEMENTS: Section 8 of IRPA: the minister, with approval of Cabinet, may enter into agreements with provinces & territories. To facilitate exchange of info between federal and provincial governments on development of immigration programs/policies.

Some agreements are comprehensive and cover a wide range of issues, others cover more specific issues, e.g. Provincial Nominee Program. IRCC, CIC, Annual Report to Parliament on Immigration: information about these agreements.

STATUTES AND REGULATIONS - REGULATIONS: They are a subordinate form of legislation, often drafted by the staff of the Cabinet of the governing party. They don't need to be approved and passed by the legislature. Regulations under parent statutes.

Tend to be practical, can include lists, schedules, diagrams, forms. If a statute has regulations, these will be published in their own volumes, separate from the statute, & will be revised in the same schedule as the statute.

SOURCES OF IMMIGRATION LAW: Immigration in Canada is governed by both domestic & international law. DOMESTIC LAW GOVERNING IMMIGRATION INCLUDES:

The Constitution, Immigration Agreements, Canadian Charter of Rights and Freedoms, Statutes & Regulations, Case Law.

ROLE OF ADMINISTRATIVE LAW: Decisions may be made quickly and routinely, Decisions may be quasi-judicial, involving a hearing before an impartial decision-maker.

The decision must be fair, based on the relevant criteria, made by an unbiased decision-maker. Administrative decisions may be judicially revised by a court: it considers if tribunal acted within jurisdiction, exercised appropriate discretion, & if procedures were fair.

CASE LAW: is judge-made law. Interpreting the statutes and regulations. Case law is part of the common law. Common law principles: e.g. rules of procedural fairness, developed through judicial review, play an important role in immigration law.

The decisions of higher level courts, provincial courts of appeal/Supreme Court, must be respected and followed in. Lower level courts unless the facts of the new case differ substantially. Tribunal decisions are not binding within or across different tribunals.

OPERATIONAL BULLETINS OBs: Issued to deliver urgent instructions to officers or provisional instructions to staff to be used on a one time or temporary basis while the program and policy manuals are updated.

The minister may issue a number of bulletins each month, Check them to see if a current application may be affected. They don't have force of law. If manual's provision inconsistent with IRPA or regulations, that is not valid. Classified inside the Program Delivery Instructions.

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS:

The purpose of the Charter is to establish parameters concerning what the government can do to protect minority rights in a democracy in which the majority elects the government. The Charter applies only to government activity or decisions.

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS: (cont'd): Rights and freedoms protected by the Charter include:

fundamental freedoms, including, freedom of expression, section 2,b and religion, 2,a. Mobility rights, section 6, legal rights, right to life, liberty & security of the person, section 7, right to interpreter at hearing, S.14. Equality rights, section 15, language rights, sections 19 & 20,1.