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 Canadian Immigration and Refugee Law for Legal Professionals, 5e

CHAPTER 3
Admissibility

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 3

Learning Outcomes
• Review the different government agencies involved in
assessing inadmissibility.
• Describe the general application requirements for applying for
a visa and entering Canada.
• Identify the grounds of inadmissibility to Canada under IRPA
and understand when exemptions to these grounds apply.
• Describe the types of decisions to which officers may refer in
determining whether persons are inadmissible on certain
grounds.
• Identify and distinguish among the three types of domestic
crime that may make a person inadmissible to Canada:
serious criminality, criminality, and organized criminality.
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 4

At the Café with Monica and Jordan

Discuss:
By way of analogy, Jordan provides an example of
rules Monica has for inviting people to her party; for
example, rules around who gets invited.
• Do you think we should have controls to keep
Canada safe?
• What should they be?
• Do you think our laws are fair? Tough? Too lax?

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 5

Definitions (IRPA, s 2)
• Foreign national: A person who is not a Canadian
citizen or a permanent resident; includes a stateless
person
• Eligible
• Meeting the criteria set out in the IRPA or IRPR for
the type of entry sought
• Inadmissible
• Ineligible for entry to Canada for one or more
grounds

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 6

General Application Requirements

IRPA, s 11—a foreign national must apply before
entering Canada
• In writing or, in some cases, orally at the port or entry
• Application: foreign national must support their
application with documents to prove that they are both
eligible and “not inadmissible.”

Note the language of immigration law: applicants

are inadmissible until they prove they are not!

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 7

Assessment by Officer
• Visa Office or, in some cases, at the port-of entry.
• Assess application for:
1. eligibility – meets requirements for type of
status?
2. inadmissibility – any ground that would make
the applicant inadmissible

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 8

Standard of Proof
• IRPA, s 33:
• The facts that constitute inadmissibility … include facts
for which there are reasonable grounds to believe that
they have occurred, are occurring or may occur.
• Recall that the standard of proof in civil matters is the
balance of probabilities (whether a claim or a fact as
alleged is more probably true than not true).
• This is less than civil standard of balance of probabilities
(Canada (AG) v Jolly) but more than mere suspicion (Chiau
v Canada ([MCI]).

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 9

Exception to Reasonable Grounds Standard

• When it comes to determining whether a

permanent resident has committed serious
criminality under IRPA s 36(1)(c), an exception to
the usual legal test is triggered by section 36(3)(d):
• “a determination of whether a permanent
resident has committed an act [of serious
criminality] must be based on a balance of
probabilities”

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 10

Applicant’s Obligations (IRPA, s 16)

• Answer truthfully all questions at an examination by an
officer
• Show a visa and other documents on request
• Appear for an examination on request
• Provide biometric information, such as photographic and
fingerprint evidence
• Submit to a medical examination on request
• Upon the request of an officer, appear for an interview with
the Canadian Security Intelligence Service and answer
truthfully all questions put to them during the interview

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 11

Why Some People Are Inadmissible

1. Security (IRPA, s 34)
• Engaging in an act of espionage that is against Canada or that is
contrary to Canada’s interests
• Engaging in or instigating the subversion by force of any government
• Engaging in an act of subversion against a democratic government,
institution, or process (as these things are understood in Canada)
• Engaging in terrorism
• Being a danger to the security of Canada
• Engaging in acts of violence that would or might endanger the lives or
safety of persons in Canada
• Being a member of an organization that there are reasonable grounds to
believe engages, has engaged, or will engage in acts of espionage,
subversion, or terrorism
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 12

Why Some People Are Inadmissible (cont’d)

2. Human or international rights violations (IRPA, s 35)

• Committing a war crime or crime against humanity outside
Canada
• Being a prescribed senior official of a government that engages or
has engaged in terrorism; systematic or gross human rights
violations; or genocide, a war crime, or a crime against humanity
• A person whose entry or stay in Canada is restricted
• “Crime against humanity,” “genocide,” and “war crime” are defined
in section 4(3) of the Crimes Against Humanity and War Crimes
Act

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 13

Why Some People Are Inadmissible (cont’d)

3. Serious Criminality (IRPA, s 36(1))

• Applies to permanent residents and foreign nationals
• Convicted in Canada: an offence punishable by a maximum term of
imprisonment of at least ten years, or of an offence for which a term
of imprisonment of more than six months was imposed (IRPA, s
36(1)(a))
• Convicted outside Canada: of an offence that, if committed in
Canada, would constitute an offence punishable by a maximum term
of imprisonment of at least ten years (IRPA, s 36(1)(b))
• Committed an act outside Canada: that is an offence in the place
where it was committed and that, if committed in Canada, would
constitute an offence punishable by a maximum term of
imprisonment of at least ten years (IRPA, s 36(1)(c))
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 14

Why Some People Are Inadmissible (cont’d)

4. Criminality (IRPA, s 36(2))

• Applies only to foreign nationals
• Convicted in Canada: an offence punishable by way of indictment, or of two
summary conviction offences not arising out of a single occurrence
• Convicted outside Canada: an offence that, if committed in Canada, would
constitute an indictable offence, or of two summary conviction offences not
arising out of a single occurrence that, if committed in Canada, would
constitute offences
• Committed an act outside Canada: an offence in the place where it was
committed and that, if committed in Canada, would constitute an indictable
offence
• Committed an act on entering Canada: that is an indictable offence
prescribed by the IRPR

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 15

Why Some People Are Inadmissible (cont’d)

5. Organized Criminality (IRPA, s 37)

• Applies to permanent residents and foreign nationals who are members of an
organized crime group
• The organization is or has been engaged in activity that is part of a pattern of
criminal activity, committed in or outside Canada; has engaged in
transnational crime

6. Health Grounds (IRPA, s 38)

• Applies only to foreign nationals

• Inadmissible if the condition is: likely to be a danger to public health (e.g.,

active TB), likely to be a danger to public safety (e.g., serious, uncontrolled
mental health problems or substance abuse), or might reasonably be
expected to cause excessive demand on health or social services (see IRPR,
s 1(1))

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Why Some People Are Inadmissible (cont’d)

7. Financial Reasons (IRPA, s 39)

• A foreign national must satisfy the visa officer of the ability to be both
self-sufficient and support any dependents in Canada, both
physically and legally.
8. Misrepresentation (IRPA, s 40)
• Misstating facts or withholding information
• In some cases, a person continues to be inadmissible for
misrepresentation for a period of five years from either a final
determination of inadmissibility or the date the removal order is
enforced.
• In some cases, a foreign national will be banned from applying for
permanent resident status for five years.
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 17

Why Some People Are Inadmissible (cont’d)

9. Cessation of Refugee Protection (IRPA, s 40.1)

• Generally, both foreign nationals and permanent residents may lose Canada’s
protection when the minister makes an application for refugee status protection to
cease.
• A member of the IRB makes the final determination. If status is removed, then the
person ceases to have protection and becomes inadmissible.

10. Failure to Comply (IRPA, s 41)

• Failure to comply includes contraventions of immigration laws and regulations (e.g.,
failure to appear for an examination or an admissibility hearing)

11. Inadmissible family member (IRPA, s 42)

• Their accompanying family member or, in prescribed circumstances, their non-
accompanying family member is inadmissible, or they are an accompanying family
member of an inadmissible person

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