The appellant challenged the finding by the Canadian Human Rights Commission that as a person with “no immigration status, he was not lawfully present in Canada”.[2] As a result, the Commission had concluded that it lacked jurisdiction under the Canadian Human Rights Act (CHRA) to consider Mr. Tan’s complaint.

The Honourable Mr. Justice Rennie, writing for the majority in Tan, began his decision by considering Forrest v. Canada (Attorney General),[3] a 2006 Federal Court of Appeal case which held that the Commission lacked jurisdiction to hear complaints from individuals without immigration status. Forrest found that it was the role of the Minister of Citizenship and Immigration to determine a person’s status. In Tan, the majority also interpreted “lawfully present in Canada” and “status of an individual”, terms which appear in the CHRA.

Notably, the majority found that “Forrest FCA was wrongly decided and ought no longer to be followed”.[4] Justice Rennie also wrote that “inclusive references” in the CHRA “demonstrate an intention to extend the benefit of the legislation to as broad a group of persons as possible.”[5]

The correct approach, in the majority’s view, is for the Commission to first attempt to answer the question of whether or not the complainant is lawfully present on their own. If the Commission cannot draw its own conclusion on this point, it should seek the advice of the appropriate minister.[6] Justice Rennie cautions that the advice of the Minister – be it the Minister of Justice, Minister of Citizenship and Immigration or Minister of Public Safety and Emergency Preparedness, or anyone else – is only one factor to consider amongst myriad “other relevant factors”.[7]

Mr. Tan’s entry into Canada was “lawful as it was authorized under the Extradition Act”, concluded the majority.[8] Furthermore, Mr. Tan was “lawfully present in Canada” when the alleged discrimination occurred and so the Commission ought to consider the complaint.[9]

The Tan decision does not apply to any individual without immigration status, however. The majority expressly distinguishes Mr. Tan’s case from that of an individual on immigration detention, or a person whose refugee claim or pre-removal risk assessment was rejected.[10] Justice Rennie writes that Mr. Tan is “required by Canadian law to remain in Canada for the duration of his sentence”, unlike individuals who “but for pending legal proceedings or administrative delay, would be removed from Canada.”[11]

(Sources)

The post The Federal Court of Appeal’s Recent Decision in Tan v. Canada (AG) first appeared on Bellissimo Law Group.

(1) Departure Order

A departure order is the least severe of removal orders. A foreign national who receives a departure order must leave Canada within 30 days of the order becoming enforceable. If they properly confirm their departure with the Canadian Border Services Agency (CBSA) within these 30 days, then they will not have to receive authorization to return to Canada (ARC).

If the foreign national does not leave Canada within these 30 days or does not confirm their departure with CBSA, however, the departure order automatically becomes a deportation order. When this happens, removal proceedings will be initiated on a priority basis, which can lead to arrest, detention and ultimately, removal.

Notably, all refugee claimants have a conditional departure order issued against them upon claiming. This order is not enforceable until their claim for protection is decided. If the claim is successful and they are determined to be a Convention refugee or a person in need of protection, then the departure order will be cancelled. If their claim for protection is refused, then the departure order is no longer “conditional”, and they must leave Canada within 30 days of the final determination of their claim. Otherwise the departure order is converted into a deportation order which has much more serious consequences.Please see below for more detail on deportation orders.

(2) Exclusion Orders

Exclusion orders are more significant than departure orders, but less severe than deportation orders. Exclusion orders specify a period of time during which a foreign national will be barred from entering Canada, unless they receive an ARC. Subsection 225(1) of the Immigration and Refugee Protection Regulations (Regulations) sets out the different circumstances in which a foreign national or permanent resident will be barred from Canada for either one year or five years.

It is important to be aware that findings of misrepresentation continue to be pursued vigorously, and the applicable bar associated with misrepresentation has been increased from two to five years. This means that if you are found to be inadmissible to Canada on the basis of misrepresentation (under section 40(1) of the Immigration and Refugee Protection Act), you will receive an exclusion order which prohibits you from both entering Canada (unless you obtain an ARC) and applying for permanent residence for five years.

There is one important exception to note. If a foreign national receives an exclusion order for being inadmissible to Canada because they are the accompanying family member of an inadmissible person, then they do not need to obtain an ARC to return to Canada (pursuant to subsection 225(4) of the Regulations).

 (3) Deportation Orders

Deportation orders are the most serious kind of removal order and carry with them a significant penalty. Foreign nationals and permanent residents who receive deportation orders are permanently barred from returning to Canada without an ARC. This bar is never lifted, meaning that those with deportation orders issued against them must obtain an ARC to ever return to Canada.

Again, departure orders become deportation orders after 30 days, by operation of law. This is extremely important, because people do not always recognize the effect of remaining in Canada with an outstanding departure order against them.

It is essential to understand these important differences in order to minimize future consequences.

For more information on Removal Orders, please click here.

The post Removal Orders Explained – What You Need to Know! first appeared on Bellissimo Law Group.