Immigration and Refugee Law, Winter 2010, Prof. Fox-DecentStephanie McKinnon
Introduction
General
Context
Present Immigration Structure
Distributive Principles
R v. Quong-Wing, [1914] 49 S.C.R. 440: CB 6-12
Canada v. Singh; Re Munshi Singh, [1914] B.C.J. No. 116 (C.A.): CB 16-21
Mack v. Canada (Attorney General of Canada) (2002), 60 O.R. (3d) 737 (CA): CB 28-32
Theoretical Perspectives
Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders”: CB 55-62, 78-83
Michael Walzer, “Membership”: CB 63-78
Donald Galloway, “Liberalism, Globalism, and Immigration”: CB 83-94
Catherine Dauvergne, “Amorality and Humanitarianism in Immigration Law”: CB 94-105
Status......
Chen v. Canada (2001), Imm. L.R. (3d) 222 (FC-TD): CB 112-116
Langner v. Canada (1995), 184 N.R. 230 (FCA): CB 124-127
Romans v. Canada (2001), 281 N.R. 367: CB 129-130
Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711: CB 129
Canada (Citizenship and Immigration) v. Khosa,2009 SCC 12
Judicial Review
Constitutional Review
Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177: CB 154-161
Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711: CB 161-66
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 166-168
Administrative Review
Of Substantive Decisions......
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982: CB 170-177
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817: CB 179-188
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 166-168
Canada (Citizenship and Immigration) v. Khosa,2009 SCC 12
Of Procedural Fairness
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817: CB 179-188
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 166-168
International Review
Ahani Case, ONCA
Tahir Hussain Khan v. Canada, Committee Against Torture, Communication No. 15/1994, UN Doc. A/50/44 at 46 (1995): CB 223-225
Temporary Residents......
Temporary Workers
Temporary Foreign Worker Programs......
Walzer, “Membership”, Spheres of Justice: CB 243-249
Ruhs, “Designing Viable and Ethical Labour Immigration Policies”: CB 250-259
Live-In Caregivers
Macklin, “On the Inside Looking In: Foreign Domestic Workers in Canada”: CB 262-275
Students......
Kim v. Canada (Minister of Citizenship and Immigration), 2004 FC 55, [2004] F.C.J. No. 42 (FC-TD): CB 285-287
Breach of Conditions
Dinh v. Canada (Minister of Citizenship and Immigration), 2003 FC 1371, Imm. L.R. (3d) 167 (FC-TD): CB 288-289
Permanent Residents
The Economic Class......
Dogra v. Canada (Minister of Citizenship and Employment) (1999), 166 F.T.R. 264 (FC-TD): CB 307-311
Sheikh v. Canada (Minister of Citizenship and Immigration), 2003 FCT 272 (FC-TD): CB 312-314
Chen v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 639 (FCA): CB 318-324
The Family Class......
Partners......
Bhatti v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 333 (IAD): CB 373-375
Macapagal v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 21 (IAD): CB 375-381
Caron v. Canada (Minster of Citizenship and Immigration), [2005] I.A.D.D. No. 89 (IAD): CB 383-386
Awwad v. Canada (Minister of Citizenship and Immigration), Docket IMM-1003-98: CB 387-390
Salh v. Canada (Minister of Employment and Immigration) (1988), 5 Imm. L.R. (2d) 114 (IAB): CB 391-394
Children......
de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436: CB 400-419
Sponsorship Issues......
Macklin, “Public Entrance/Private Member”: CB 434-440
Refugees......
The International Context......
Safe Third Country Agreements (STCA)
Canadian Council for Refugees v. The Queen, 2007 FC 1262, rev’d in The Queen v. Canadian Council for Refugees, 2008 FCA 229
Refugee Protection in Canada......
Refugee Determination......
Definition of “Refugee”......
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689: CB 547-567
1) OUTSIDE COUNTRY......
Canada (Minister of Citizenship and Immigration) v. Williams, 2005 FCA 126: CB 570-572
2) FEAR OF PERSECUTION......
Zolfargharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 FC 540 (FCA): CB 575
Hinzman . Canada (Minister of Citizenship and Immigration), [2006] FC 420 (FCTD): CB 576
3) WELL-FOUNDED FEAR......
4) GROUNDS OF PERSECUTION......
Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593: CB 591-594
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
Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S, [2003] H.C.A. 71 (Aust. HC): CB 600-608
5) UNABLE OR UNWILLING: Internal Flight Alternatives (IFA)......
Exclusion Clauses......
Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (CA): CB 620-627
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982: CB 641-645
Cessation Grounds......
Consolidated Grounds......
Refugee Protection Division File TA1-24763 (11 February 2003): CB 648-650 (XXXXXXXXXX)
Enforcement......
Removal Orders......
Inadmissibility......
Health Grounds......
Hilewitz v. Minister of Citizenship and Immigration, [2005] S.C.J. No. 58 (SCC): CB 676-687
Criminality......
Pre-Removal Risk Assessment......
Varga v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1570 (QL) (FC-TD): CB 739-743
Security Certificates......
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: CB 748-760
Charkaoui v. Canada (Minister of Citizenship and Immigration), [2007] 1 S.C.R. 250
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:
(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 6-12Facts / 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).
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.
Comments / 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 Chinese-Canadians?
Holding / (1) No. (2) No. (3) No.
Reasoning / (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).
Comments / 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)
- 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
- 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:
- 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
- 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
- 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)
- 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 “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
- 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
- Pre-Charter, courts offered only jurisdictional analysis
- Mangat (2001) confirmed Parliament’s superiority through double aspect and then paramountcy doctrines
- IRPA ss. 8-9 allow for federal-provincial agreements on immigration
- Charter issues: Section 7
Charter s. 7. Life, liberty and security of person.