The Immigration Division is a tribunal branch of the Immigration and Refugee Board.
Have you been referred to the Immigration Division?
Hearings before the Immigration Division are grouped into two categories: Admissibility Hearings and Detention Reviews. Hearings can arise in the following circumstances:
a) If you are trying to enter Canada and you are alleged to be inadmissible
b) If you are in Canada and are removable due to alleged inadmissibility
c) If you are detained under the Immigration and Refugee Protection Act (IRPA)
Generally, inadmissibility hearings are requested by Canada Border Services Agency (CBSA) officials because they are of the opinion that a foreign national or a permanent resident has breached IRPA and therefore is no longer admissible to Canada. CBSA officials may make a report (known as a S.44(1) report) detailing the grounds on which they believe an individual is inadmissible to Canada. The report is sent to the Minister’s Delegate who will then decide if the report is well-founded and if so, may refer the permanent resident or foreign national to the Immigration Division for an admissibility hearing or issue a removal order.
The steps at a admissibility hearings in most cases are as follows:
i) A person who is in Canada or tries to enter Canada is found inadmissible by CBSA or IRCC
ii) S.44 report may be prepared and sent to Minister’s Delegate
iii) Minister’s Delegate issues a removal order
iv) Minister’s delegate refers case to Immigration Division
v) Individual attends hearing at the Immigration Division
vi) Individual is allowed to enter/remain in Canada. The individual may be granted entry to reside in Canada or may be granted entry for further examination before a final decision is made.
vii) Removal Order is issued
At the hearing, the burden is on the Minister to prove that a permanent resident or foreign national (the person concerned) is inadmissible to Canada. The hearing is held before an impartial member of the Immigration Division. The Member will assess the submissions and evidence submitted by the person concerned (or counsel), the Minister, as well as testimony from any witnessesl. There are a number of inadmissibility grounds under IRPA for which the CBSA may refer you to the Immigration Division.
a) S. 34(1) of IRPA – Security grounds. Security grounds cover allegations of espionage, terrorism, being a danger to the security and/or peoples of Canada or being part of an organization that has, is or will engage in such activities.
b) S. 35(1) of IRPA – Human or International Rights Violations.
c) S. 36(1) and (2) of IRPA – Serious Criminality and Criminality. This section of IRPA allows CBSA to potentially refer individuals who engage in criminal activity to the Immigration Division for an admissibility hearing. The main difference between Serious Criminality and Criminality lies in the offence. A foreign national or permanent resident who has been convicted of a crime that carries a maximum sentence of at least 10 years OR was sentenced to a term of imprisonment of at least 6 is considered to be inadmissible due to serious criminality. If the conviction occurred outside of Canada and, had it been committed in Canada, would’ve resulted in a conviction with a maximum sentence of 10 years or more, the individual can be found to be equally inadmissible.
d) S. 37(1) of IRPA – Organized Criminality. Allegations under this ground or based on a belief that a permanent resident or foreign national is a member of an organization that has, is or will engage in activities organized by a group of people in an effort to commit a criminal act. This section also covers engaging in transnational crime such as human trafficking and money laundering.
e) S. 38(1) of IRPA – Health Grounds. Where a foreign national has been found to likely be danger to public health, safety or might reasonably be expected to cause excessive demand on health or social services. The threshold for excessive demand changes from year to year. As of 2018, the public policy threshold was $19,812 CAD per year. Exceptions to this category can be made if the individual is a member of the family class, convention refugee or a protected person.
f) S. 39 of IRPA – Financial Reasons. Financial inadmissibility can be used as a ground for inadmissibility where it is deemed an individual is unable or unwilling to support themselves and/or their dependants and have not convinced an officer that arrangements have been made for support so that there will be no resort to social assistance.
g) S. 40(1) of IRPA – Misrepresentation. A finding of inadmissibility under this section carries a bar to Canada of 5 years. Misrepresentation occurs when a permanent resident or foreign national directly or indirectly misrepresents or withholds materiel facts that results in or may result in an error in the administration of IRPA. If the person concerned was sponsored by someone who has been deemed inadmissible for misrepresentation, that person is also inadmissible.
h) S. 41 of IRPA – Non-compliance with the Act.
i) S. 42(1) of IRPA – Inadmissible Family Member. This section covers foreign nationals, not including protected persons, that are an inadmissible family member or are accompanying an inadmissible family member.
If a fining of inadmissibility is made, a removal order will be issued. For more information on removal orders, click here . You may (depending on the grounds of inadmissibility) be eligible for an appeal at the Immigration Appeal Division. For more information on the Immigration Appeal Division, click here. You make also seek to challenge the removal order to the Federal Court. For more information on the Federal Court, click here.
CBSA may detain foreign nationals and permanent residents on various grounds. The CBSA officer may believe the individual is a danger to the public, and/or is unable to establish their identity and/or will not appear for an examination, or an inadmissibility hearing or for removal from Canada. The CBSA officer may also detain an individual if there are reasonable grounds to believe the individual is inadmissible for security, human or international rights violations, serious criminality, criminality or organized criminality.
The government has designated facilities for immigration detainees that are designed to be minimum security. Immigration detainees may also be held in provincial correctional facilities where required. The Immigration Division determines whether there is sufficient reason to continue detention. Within 48 hours of being detained (or as soon as possible thereafter), the Immigration Division will hold a detention review to review the reasons for detention. At a Detention Review, the Minister’s counsel will try to justify why continued detention is required while the detainee and/or counsel will argue for release. At the hearing, the Immigration Division Member must determine if the continued detention of an individual is justified under the following grounds.
- It is reasonably likely that the individual will not appear for an examination, hearing or removal. To determine if an individual is a flight risk, the Member will look at several factors including if the person is a fugitive for committing a criminal offence in another country that would be a crime in Canada. The Member may also assess if the individual has voluntarily complied with previous departure orders, scheduled hearings, examinations or conditions imposed. The Member may also assess if the person has a fixed place of residence in Canada, if sureties (bondsperson) can be provided, if the detainee is credible or if there is an alternative to detention.
- The Individual is a danger to the public. To determine this the Member will review if the individual is a danger to the public or security of Canada. They will also assess if the individual is part of a criminal organization, has been convicted of a sexual offence or an offence involving violence or weapons. The Member will also review if the individual has a conviction for trafficking, importing, exporting or producing a controlled drug or substance. Any convictions outside of the country that would fall under one of these categories are also factored into the decision. Conduct with CBSA officers or related authorities, tribunals will also be considered.
- Lastly, detention may be imposed on a foreign national where identity cannot be established and identity must be established to make determinations on any safety, security or inadmissibility concerns. The Member may also consider how cooperative the individual was in helping establish identity and if multiple identities have been used in the past.
When determining if detention is appropriate, the Member will also consider the reason for detention, the duration of detention, any elements that can help determine how long the individual will be detained, any unexplained delays or lack of diligence on the part of the CBSA or the detainee and if there is an alternative to detention. A decision will then be rendered after all the evidence of testimony is reviewed and heard.
If detention is ordered to be continued after the initial detention review, another detention review will be conducted with 7 days and then, if detention is continued again, a new detention review will occur at least once every 30 days for the duration of the detention. The detainee may request a detention review early, but must provide reasons to support the request. At each detention review, the above issues will be assessed. Where the Member is satisfied that detention is no longer reasonable, the detainee will be released and will often be subject to conditions such as reporting to the CBSA.
What to do Next
If you have been referred to the Immigration Division for an inadmissibility hearing, have been found inadmissible and want to appeal or have a detention review approaching and would like assistance, we encourage you to contact Bellissimo Law Group PC