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Removals

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Removals

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  1. 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 (for most PRs), or order • s.48(2) must leave immediately + enforced ASPA • come into force: when made, when appeal period expires or appeal is rejected • against a refugee it is conditional (s 49(2)) • void if FN becomes PR in the interim • can extend to family members (reg 227) • provision to return at gov’t expense if error fnd in JR

  2. Stays s. 50, reg 230 • staying removal orders is bread and butter work for immigration lawyers • test for stays from Toth 1988: 1. serious issue to be tried; 2. suffer irreparable harm; 3. balance of convenience in app’s favour • 5 scenarios for stays: 1.if judicial dec wd be contravened 2.imprisonment 3.imposed by IAD or court 4.resulting from a PRRA (114(1)(b)) 5.imposed by the Minister

  3. a list of countries to which removals are suspended • this won’t 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 • H&C considerations can stay

  4. 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 (ex. s.42(b)) • if ‘certificate’ removal, always need written

  5. Enforcement • a removal order never lapses due to passage of time • voluntary compliance or removal by Minister • a notional choice of country * (reg 241) • ultimately, the Minister can select any country that will authorize entry • a removed person owes the gov’t $750 for US or St.P/M, and $1500 for anywhere else, unless carrier sanctions apply (reg 243)

  6. 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 with any condition, s 38 health • Departure: PRs losing status bc of residency obligation, for refugee claimants who would otherwise get exclusion orders

  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 para 24)

  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 h&c factors at any point, nor of rehabilitation…inquiry is to confirm that the conviction was in fact handed down • Minister also not bound to look at h&c 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, h&c sponsorship pending • here a stay of removal is sought, test is: 1. serious issue, 2. irreparable harm, 3. balance of convenience • serious issue branch of test failed • stay proceedings not to consider h&c factors • deportation itself cannot be irreparable harm • burden on individual to provide more info if they want it considered • officer does have discretion to defer removal pending an h&c

  11. Sogi v Canada (S.C.) 2004 FC • funnelled out of the refugee process bc of security inadmissibility • central issue: what use of secret information can be made by the Immigration Division • leave to appeal to the SCC was denied in this case • presumable this ruling now affected by Charkaoui decision • good review of how standard of proof in s. 33 operates • key issue: is it appropriate to extend the power over secret info to the tribunal • held to meet the principles of fundamental justice • series of Sogi decisions, including ruling that discretion to deport to torture remains but t alternatives must be seriously considered