Erica Olmstead 2009 Immigration/Refugee Law 377 CAN
TOPIC ONE: THE CONTEXT, LOGIC & STRUCTURE OF IMMGN LAW
INTRO......
Why Immigration Laws?......
Development of Immigration Law......
CONTEXT OF IMMIGRATION LAW......
IRPA S3 - The Objectives of the Act......
Historical Context......
Legal Context of Immigration Law......
Social and Political Context......
C. Dauvergne article(Appx 1)
THEORETICAL PERSPECTIVES – LIBERAL DEBATES AND CHALLENGES......
Trebilcock Essay:
Carens
Walter
Galloway
CatherineDauvergne
Appx 2 Theoretical Class Exercise
OVERVIEW OF THE PROCESS & STATUS OF THE PLAYERS......
Immigrants And Refugees......
IRPA......
1. Citizens (& Indians under the Indian Act)......
2. Permanent Residents......
Loss of permanent residence status (Romans 2001, Canepa 1997)
3. Foreign Nationals......
Temporary residents - Students, workers, visitors......
Protected Persons, s. 95, & Refugees......
Undocumented Migrants......
PROCESS & SUPPORTING PLAYERS......
Parliamentary Committee / Governor In Council......
Citizenship and Immigration Canada (CIC) Minister & Delegates......
Canada Border Service Agency (CBSA)......
Immigration and Refugee Board (IRB) , p. 37 Chart......
- Refugee Protection Division......
- Immigration division......
- Immigration Appeal Division (Most judicial, of the quasi-judicial)......
- Refugee Appeal Division (not in place)......
Federal Court and Federal Court of Appeal (FC and FCA)......
Dilemma of Judicial Review......
JUDICIAL REVIEW – ADMINISTRATIVE REVIEW......
Dunsmuir 2008 SCC - Nature/standard/process/substance of JR......
M.C.I. v. Khosa, 2009 SCC 12
Substantive Review of Discretionary Decisions......
Baker v. MCI 1999 SCC (H&C - Pre-Dunsmuir) Hawthorne
Suresh v. MCI 2002 SCC(also pre-Dunsmuir)
Procedural Fairness (Suresh, Baker, Ahani, Chark)
CONSTITUTIONAL REVIEW......
Singh v. MEI 1985 - S7, procedure + torture
Chiarelli v. MEI 1992 (S7, no right ^Reconcilable?) Nguyen
Suresh v. MCI, SCC 2002 (compare with Dadar)
Guzman v. MCI FC 2006 (S.15)
Charkaoui v. MCI SCC 2008 (torture + due process)
INTENATIONAL REVIEW......
International Intersections......
Individual Complaints......
Dauvergne: Humanitarian Identity and Nation
Dadar: UNCAT (Committee Against Torture) Torture discussion......
UN Human Rights Committee/Against Torture/Inter-American Commission......
Tahir Hussain Khan v. Canada
Government Reporting - International obligations &/v. Charter (Baker)
Appx 3 - Exercise on Alice
TOPIC TWO: ADMITTING PEOPLE TO CANADA
TEMPORARY RESIDENTS – VISTORS, WORKERS AND STUDENTS......
Sun Article
Requirements......
Conditions of temporary residence Reg. 184......
Extension and Restoration of Status......
Breach of conditions work/study permit......
Study Permits ......
Wang v. Canada 2006 FC
Kim v. Canada 2004 FC
Work Permits......
Temporary foreign worker program - Expediant Policies......
Walzer – Guest Workers & Membership
Ruhs – The Case for Foreign Worker Programs
Macklin – Foreign Domestic Workers in Canada - Live-in Caregiver(+Voluntad)
PERMENENT RESIDENTS – ECONOMIC CLASSES......
Selection of Economic Immigrants [Skilled and Business] Reg 70-109......
Wroswick/Hollick (& Heibert) – Declining Earning & Remedies + Riding two horses
Skilled Workers Class Criteria, Reg 75 - 83......
Dogra - High School Councelor
Sheik - Assessing application - Onus to put best case forward
Chen- bribe, substituted evaluatin
Business Immigrants, Reg. 88
Rahim v. MCI
Other Economic Classes......
Relationship b/w Immigration and Economic growth
Callacott – Looming Labour Shortage and Img?
Tolley – Skilled Worker Criteria
Heibert- Poli Econ of Migration in Canada
Appx 4 Eg. Beth & Hideo (like-Q on exam*)
PERMANENT RESIDENTS - FAMILY CLASS (REUNIFICATION)......
Family reunification - Sponsorship or Include in Application......
FAMILY CLASSES, Reg.116-137......
Requirements & Exclusions......
Bona fide relationships......
Sanichara v. MCI 2005 (Look to obvious facts)
Salh 1988 (prior deceit irrelevant - relationship in and of itself)
Processing......
Remedies if an application is refused......
Spouse (Bhatti)
CL partner v. Conjugal (Macapagal, Caron)
Sponsorship Application (incl. processing times)......
Parents & Grandparents (Vaziri, Vong)
Dependent Child (Sandhu)
Inadmissibility (and effect)
De Guzman 2005 FCA (spent a lot of time here)......
Audrey Macklin “Public Entrance/Private membership”
Guzman v. MCI 2006 FC
TOPIC THREE: REFUGEE PROTECTION
REFUGEES: INTERNATIONAL CONTEXT ss. 3, 3(2), 96-98, schedule......
UNHCR - Lesley Stalker Assistant Legal Councel......
Historical Background......
Definition of refugee from Art.1A(2), ’51 Refugee Convention:......
UNHCR [General Assembly] has 2 big arms:......
Revolt & Reform Agenda for Protection ('Crisis and Cure' Hataway)
Non-Refoulement......
Reality......
Safe Third Country Agreements......
Canadian Council for Refugees v. MCI, FC/CA on STCA......
REFUGEE PROTECTION IN CANADA - INTODUCTION......
Convention Refugees and Persons in Need of Protection
“Protected persons”, ss. 95 - 116......
How to make a refugee protection claim in Canada:......
Hearing before the RPD -- p. 539* + Charts in Supp. (Crepeau - The Complexity)
After RPD hearing......
Suresh
ELEMENTS OF THE REFUGEE DEFINTION......
CONVENTION REFUGEE
Canada (A.G.) v. Ward
1. Refugee must be outside Country of Nationality/Residence (Williams, Kemel)
2. “Well-founded fear” (of persecution) (Ward, Carillo)
3. Unwilling or unable to avail self of State’s Protection (s.108(4))......
> Internal flight alternative (x state protection) (Thiruavukkarusu)
4. Fear of "Persecution" (Bobrik, Zolfargh, US Military, China Cheug, Salibian) Agents, Gender-based...
5. Grounds for Persecution - Nexus......
- Race......
- Nationality......
- Religion......
- Political Opinion......
- Membership in a Particular Social Group (V.O.G., Ward, Chan, Mackland)
EXCLUSION CLAUSES......
Article 1E - Last resort provision (Shamlou, Kroon)
Article 1F – Acts so grave, person is rendered deserving(Jayasacera)
Overlap of criminal/political purpose......
Exclusion Clause 1F(a) (Sivakumar, Moreno/Ramerez)
Exclusion Clause 1f(c) (Pushpanathan)
Exclusion Clause 1F(b) (Jayasekara)
PERSON IN NEED OF PROTECTION, S. 97......
Appx 5 Problems – p. 651-654
PRRA AND HUMANITARIAN ADMISSIONS......
PRRA Application and Stay......
Requirements for PRRA (Raza, Cerilo, Ferguson, Lye, Vagra)
HUMANITARIAN ADMISSIONS, S. 25......
Key legislative Provisions......
Baker v. MCI ()
Hawthorne v. MCI (judicial review)......
Legault v. MCI
TOPIC FOUR – KEEPING PEOPLE OUT
INADMISSABILITY TO CANADA AND REMOVAL ORDERS......
Inadmissibility (upon application)......
Inadmissability - Loss of status, s. 44(1)(2) and 45** (subject to a lot of caselaw)
> Immigration Division Appeals on Loss of Status
Security, s. 34......
What is ‘Terrorism’ (Suresh)
What Involvement is sufficient......
Who is a ‘member’ (Poshteh)......
S. Aiken article - Critique
Human Rights Violators (IRPA, s.35)......
Mugesera
Criminality – Serious, other, organized......
Serious Criminality, s.36(1), 3(3)......
Other Criminality (General) s.36(2), 36(3)......
Some equivalent criminality issues......
Li
Saini
Organized criminality, s. 37......
Chiau
Excessive demand – Health conditions, s. 38......
Deol/LegMedical services......
HilewitzSocial Services......
Financial Reasons, s. 39......
Misrepresentation, s. 40......
Non-compliance with IRPA (S.41)......
Family Members, s.42......
Appx 6 - Fact Scenario
HUMAN TRAFFICKING PRESENTATION [John Ferguson],ss. 117-121......
[As relates to Refugee Protection/Immg Enforcement]......
Perrin – policy article......
V.O.G. (Re), [2006]
C. Dauvergne Ch 5 “Trafficking in Hegemony”
REMOVAL AND DETENTION......
Gibney and Hansen - What, when, why?......
Removal Orders s.48 49 (Sahakyan, Pancharatnam)
Formal “Detention”, s. 54-61, Reg. ss.224-250......
Detention Process, Review, & Factors......
Charkaoui 2007 SCC - security certificate + detention review; s. 33, 77-85......
Almrei, Harkat and Jaballah
Deghani 1993 SCC - Interview......
** Exam -- incorporate factual and/or legal issue(s) raised in the JR. (mini-notebook)......
1
Erica Olmstead 2009 Immigration/Refugee Law 377 CAN
TOPIC ONE: THE CONTEXT, LOGIC AND STRUCTURE OF IMMIGRATION LAW
INTRO
Why Immigration Laws?
THE MOVEMENT OF PEOPLE ACROSS INTERNATIONAL BORDERS
- Freedom of Movement
- Altruism (media image)
- Self interest (labour market gaps)
- Sovereignty of the State to choose (fundamental)
- Right to asylum (competing need of the individual to the state)
- Humanitarianism (more than altruism, and less than a right)
Development of Immigration Law
Magna Carta – Article 41, 1215
“All merchants shall have safe conduct to go and come out of and into England... for purposes of buying and selling, free of illegal tolls, in accordance with customs..” - Intricate relation with economic and commercial concerns
R. v. Governor of Pentonville Prison - Lord Denning
- No CML right to enter or immigrate, except as permitted by the State, and crown can impose regulation as it sees fit
Canada (MEI) v. Chiarelli, & Medovouski
“The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. At CML an alien has no right to enter or remain in the country” – Sopinka J. 1992
- Reaffirmed – No CML right to enter or remain in a country (alien)
- No right claim, short of citizenship
- The courts have consistently held that immigration is a priviledge not a right
- See also: Medovarski v. Canada (M.C.I.) (2005)
YET
Where there is significant risk at issue, perhaps it’s a rights claim, and state can’t just do whatever it wants.
Singh v. Canada (MEI) – Challenge on basis of S7, risk of their life and personal security
- “Given the potential consequences for the appellants of a denial of that status if they are in fact [convention refugees], it seems t me unthinkable that the Charter would not apply to entitle them to fundamental justice in the adjudication of their status” - Wilson , J.. 1985
- Crown – But governmental sovereignty – Court rejected the utilitarian considerations; found rights considerations to have a stronger claim.
Both the domestic and international jurisprudence suggest that torture is so abhorrent that it will almost always be disproportionate to the interests on the other side of the balance, even security interests. This suggests that, barring extraordinary circumstances (not yet defined), deportation to torture will generally violate that principles of fundamental justice protected by S7 of the Charter
Srech v. Canada (MCI) (2002)
“The notion of refugee law as a rights based regime is largely illusory”
- James Hathaway
“The refugee’s role is a humanitarianism claimant seeking the mercy of a nation. A claim for compassion does not effectively function as a right”
- Catherine Dauvergne.
Class two/three
CONTEXT OF IMMIGRATION LAW
Historical Legal & Socio-economic
IRPA S3 - The Objectives of the Act
- Distinguish immigration and refugee objectives; & the application.
- All rules are contextualized within this section.
Historical Context
1775 - 1872 Regulating entry
- Prior to this, not many rules – context of Civil war and the loyalists
- Distinguished “aliens” and others
- Eg 1873 – registry of information relating to aliens (name, rank, occupation and previous country of residence – or must leave)
- Objective – distinguish “the others”
- Concerns about immigrant burden (risk)
- Treason or libelous acts
- Fund to pay for indigent immigrants until they can support their own (economic base)
- S 95 – Rules around agriculture (to colonize and establish here)
- Classes of those whose entry is prohibited
- Idea that there is actually people who are simply undesirable, where entry should be prohibited (criminal or viscous classes)
- Later added chronic alcoholism, illiteracy, illegitimacy and attempted suicide.
- Poor and disabled singled out for being a “public charge.” (1930 esp.)
1878 – 1918 Race based rules
- BC was at (-) cutting edge here; tried to pass laws over and over to restrict Asian immigration (very bluntly so); head tax, prohibition outright, literacy or language requirement; Chinese head tax; continuous journey requirement and landing money
- Blacks were actively discourages (unsuitable for the climate + India, agreement to restrict Japanese).
- Canada v. Singh; re: Munshi Singh (p. 16)
- Unsuccessful BC appeal; the balance were sent home
- Order in council required individuals come to Canada in one continuous voyage from Asia (cannot stop anywhere)
- Further: No immigrant of the Asiatic race shall now land in Canada, unless they have at least $200; CVR explicitly allowed this (minimum amounts varied according to race).
- Terms could be race based (unfair or whimsical) because Canadian North American Act allowed for the creation of any such rules on immigration – within the sovereign power (Even includes British Subjects); Not unconstitutional or Ultra vires. Applicant is not singled out in having to meet requirements of the Act.
- Also reasoning – Rule is here to prevent internal dissent; maintain assimilation and uniformity in the country. “The better classes of the Asiatic races are not given to leave their own countries – those who become immigrants are undesirables; Different racial instincts and character in proper place of residence; where customs are not in vogue, destructive to the well-being of society and against the maintenance of Peace, Order and Good governance.
- Restriction still exist – language, employment background, education etc.
- Provision favouring Europeans’ sponsoring relatives retained until 1967.
1919 – 1945 Immigrant classes
- 1923 Order in council prohibiting entry of all except SIX defined classes of immigrants (opposite approach)
- 1872 – Began selecting “desirable classes of individuals”
- Agricultural, farm laborers, female domestic servants (still have), wives and children under 18 of those resident in Canada (family class - still), US citizens whose labour in requires, British with need for self maintenance.
- Nothing of refugees or asylum seekers
- NO distinction b/w “refugees” and “immigrants”
- Refugees admitted on a situational basis (denied to jews for those seeking asylum during the war, and intense Japanese discrimination.)
- After the war, restrictive laws continues due to fear of communism.
- 1951 UN Convention on the Status of Refugees – Canada didn’t sign until 1969 when the convention became more broad
- Law didn’t change to implement the idea of refugees having special immigration rights until 1975
1969 – Now Refugees and immigrants
- Distinction refuges and immigrants
- Previously only b/w loyalists, and situational refugees
- Distinction between visitors and immigrants
- Immigrant class: economic and family
- Refer to criminality, desirability based on economic and social factors; maintain many themes from before
- Protection regime
- 1909 – Ports of entry were established
- 1967 - Point system for selecting immigrants according to their skills, education, and work experience introduced.
- 1978 Immigration Act aimed to systematize and rationalize the law
- Specified general demographic, economic, and humanitarian aims.
- It’s continues reformulation in a somewhat haphazard manner in response to publicized events continued until 2001’s current act.
- Impact of the Charter of Rights
- Still Questions of systematic discrimination
- Impact on immigrants and refugees from the South
- Eg. Canadian visa posts around the world, and allocation of resources biased against the South – Direct impact on number of applications that can be processed in a timely manner
- Direct impact on number of applications that can processed (effectively a quota)
- Explicit favouring of young, healthy, skilled and educated (X Women in the South – denied access to education, training and employment opportunities)
- Thus most women come sponsored and men as independents
- Maintenance of a ‘head tax’ – “right of permanent residence fee” – disparate impact on immigrants from some pars of the world.
- Visa requirements on nationals of certain countries (less on “white” countries)
- Identity docs – harder for refugees
Legal Context of Immigration Law
International
- International Principles and contained in domestic law
- S3 Application (f) - Radical provision – “complies with international human rights instruments to which Canada is signatory”
- De Guzma, Okoloubu FCA
- What rights exist?
- At a minimum, turn to the binding instruments to determine rights
- EDA, trafficking protocols, CRC, etc.
- Sovereignty
- Refugees
- Nationality
Domestic/National
- Constitutional setting: Federalism and the Charter of Rights
- Shared between provinces and federal government
- More emphasis on the Provinces right now - Provincial nominee program; Quebec nominee program (always had a special place)
- S3(3) expressly talks of Legislation as subject to Charter of Rights.
- Administrative law: separation of powers and the role of judicial review
- Cabinet makes decision (legislation and regulations), then the law is further defused by policy and operational decisions; while the courts retain the power to say process and rules are unfair or contrary to the charter or x’s jurisdiction
- Citizenship
- Right of the state to define citizen
- Dual citizenship? Should this exist? wide debate.
Aboriginal Law
- First Nations, first borders – what are the borders, who controls them? They are not recognized by some aboriginal peoples
- A the centre of membership question
- Watt v. Canada, (1998) 169 D.L.R. (4th) 336 (FCA)
- US citizen with a criminal record – asserted right to cross the border based on his aboriginal connection. Had crossed back and forth frequently in the valley
- Not registered under the Indian Act; connection to the arrow lake band which had been found to be extinguished
- Court of appeal recognized the possibility of a right, apart from the Act, which must be in compliance with the Charter
Social and Political Context
- Globalization
- National identity
- 1/5 in 2006 were foreign born
- Role of the executive in immigration
- Operations Manuals,
- Immigration as a security issue
- 3(1)(h),(i); 3(2)(h)
C. Dauvergne article (See 2)
- Relationship between sovereignty, migration and the rule of law; Executive crack down v. Human rights
- Borders = accepted by liberals (only, open or closed?); people remain nationalized; sovereignty/membership remains a precursor to rights/justice
- Control over movement of people has become the last bastion of sovereignty – loss of control has lead to a variety of ‘crackdown’ measures
- Fear of large scale migration; Moral panic – economic and security considerations, us v. them.
- Refugee Law & Non-refoulement stands as a beacon as states continue to shy away from rights, incl. those of refugees
- Threat – though of minor proportions; Convention lack power to upset migration laws + nations backing away w/o consequences.
- Pure ‘illegals’ constraint – makes people think of a violation; welfare states benefits to asylum seekers - Crackdown as a strong assertion of sovereign control.
- [US-Them divide, have-nots hoping to gain], bogus refugees term ~ Refugees lumped in, but more sympathy
- Strong deference of judiciary to executive + scant impact of the Charter.
- Selection as reflecting a Nation’s values: of the best and the brightest, family reunion, cultural preferences or humanitarian preferences.
- More available for those with more, less for those with less. Inequalities , exclusions are underscored.
- Premised on a nationalized view of economies and a dated understanding of migration categories (Brain drain, bettering economy from a national stand point, rather than individual).
- IN human rights have made few inroads, now Rule of Law may be emerging as a counter to the executive free reign (?)
- need to define self in sovereignty as a great barrier
- procedural fairness etc, give scope to get outside the executive and the state. Gives a place to exert a claim for fairness to have case heard.
- [article may be grasping at the idea of procedural hope, neglectful of substantive importance]
- Cosmopolitan sovereignty/democratic law?
- ‘law of humanity’ overtaking the q’s of the rule of law (refugee matters as separate from migration matters?)
- Human rights are still dependant to the venue in which they lay claim
- Capacity to ensure stability and predictability and its need to be adaptive and responsive
- *Backlash of human rights – as they blossom in a country, become more restrictive for those who can access these.
Class Three