VERY IMPORTANT THINGS

1
VERY IMPORTANT THINGS

• Thursday revision class prepare questions
• return of problem papers on that day
• review hearing reports list Akram, Auld, Chai,
  Kazmi, Madani, Naris, Rats
• OFFICE HOURS CHANGE FOR WEDNESDAY DEC 8
  930-1130 THURS DEC 9 10-12noon
• OPEN BOOK EXAM BUT NO LAPTOPS!!!

2
Removals

• the most interesting things about removals are in
  the Regulations, procedural provisions are in
  IRPA
• ss 44-53 of the Act say
• removal is for inadmissibility
• 2 processes referral to Imm Div or order
• come into force when made, when appeal period
  expires or appeal is rejected
• against a refugee it is conditional
• can be stayed by a court, Minister, jail
• void if FN becomes PR in the interim

3
3 types of removal orders

• Departure Order least serious, no need to get a
  written authorization to return to Canada at any
  time, must leave with certificate w/in 30 days
• Exclusion Order need written authorization to
  come back w/in 1 yr (2 for misrep)
• Deportation Order need written authorization to
  ever return
• if certificate removal, always need written

4
Some examples of which circumstances lead to
which orders

• Deportation ss.36 criminality, 40 misrep, 52
  re-entry w/o authorization, 34 security, 35
  rights violations, 37 organized crim, for anyone
  who was previously removed for same reason
• Exclusion s 41 failing to appear, 20 failing to
  have document, failing to leave at end of stay,
  failing to comply wi any condition, s 38 health
• Departure PRs losing status bc of residency
  obligation, for refugee claimants who would
  otherwise get exclusion orders

5
Staying Removal Orders

• a list of countries to which removals are
  suspended
• this wont apply to some people (reg 230 list
  consent)
• JR application stays removal order BUT not for
  serious criminality or for those from US and St
  Pierre and Miquelon
• PRRA stays removal order
• HC considerations can stay

6
Enforcement

• a removal order never lapses due to passage of
  time
• voluntary compliance or removal by Minister
• a notional choice of country
• ultimately, the Minister can select any country
  that will authorize entry
• a removed person owes the govt 750 for US or
  St.P/M, and 1500 for anywhere else

7
Chiarelli SCC 1992

• 2 main issues is s. 7 of Charter infringed by
  deporting a PR? or by a secret security process
  that limits appeal rights? No and no.
• procedural changes to note now no appeal!
  certificate process less complicated
• the content of s. 7 is driven by context 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
  645)

8

• analogy with extradition, but note that Kindler
  has been directly overturned
• convicted PRs have violated an essential
  condition of their permission to remain
• deportation is not imposed as a punishment
  (therefore not cruel or unusual, s. 12)
• would it outrage stds of decency to allow him to
  remain
• rules of natural jtc and pr fairness not fixed
  stds
• national security interests also part of
  determining the content of s.7
• compassionate review never required

9
Correia v Canada FC 2004

• standard case serious criminality
• clear outline of how the removals procedure
  applies
• discretion of officer to refer to the Minister is
  very constrained, extremely limited
• no analysis of hc factors at any point, nor of
  rehabilitationinquiry is to confirm that the
  conviction was in fact handed down
• Minister also not bound to look at hc issues
• interview IF held, should be earlier, procedural
  breach of no consequence

10
Pancharatnam v Canada (S.G.) 2004 FC

• elderly woman with diabetes being removed to Sri
  Lanka, hc sponsorship pending
• here a stay of removal is sought, test is 1.
  serious issue, 2. irreparable harm, 3. balance of
  convenience
• burden on individual to provide more info if they
  want it considered
• officer does have discretion to defer removal
  pending an hc

11
Sogi v Canada (S.C.) 2004 FC

• funnelled out of the refugee process bc of
  security inadmissibility
• central issue what discretion to deport to
  torture remains?
• held some does remain, but alternatives must be
  seriously considered and here they were not the
  Threat
• essentially an application of Suresh
• has also been subject of a substantive proceeding
  regarding secret evidenceleave to appeal turned
  down by SCC this month
• central question referred back to Mins delegate
  in making the deportation decision