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Proposed Changes to Access to Appeals

by Andrew Z. Wlodyka

The Minister of Citizenship and Immigration released a White Paper in January, 1999, called "Building on a Strong Foundation for the 21st Century." This report addressed, among other immigration issues, access to judicial review and appeals to the Immigration Appeal Division of the Immigration and Refugee Board.

Access to the Immigration Appeal Division
Judicial Review by the Federal Court

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Access to the Immigration Appeal Division

With respect to security issues, the proposals in the White Paper, if implemented, will make it easier to remove permanent residents from Canada who commit serious criminal offences. This would be done by denying a permanent resident who has been convicted of an offence with a potential sentence of more than 10 years in prison or who receives an actual sentence of more than two years imprisonment of any right to appeal a removal order to the Immigration Appeal Division.

Refugees and permanent residents who are war criminals, terrorists, members of organized crime and persons who represent a security risk would also lose access to the Immigration Appeal Division.

In the case of prospective sponsored immigrants who wish to come to Canada, they would not have access to the Immigration Appeal Division through the sponsor if the prospective immigrant committed a serious criminal offence in their home country and their application was refused by a visa officer on criminal grounds.

Similarly, prospective sponsored immigrants who are found to be security risks, war criminals, terrorists or members of criminal organized crime would also be denied access to the Immigration Appeal Division.

A more serious situation would arise for those permanent residents of Canada who obtained their immigrant status through misrepresentation or for those prospective immigrants who are reported at their port of entry for misrepresentation. The common forms of misrepresentation are the failure to disclose the correct marital status, the existence of any children, or any criminal offences. If the proposed changes were implemented, these persons would no longer have any right of appeal to the Immigration Appeal Division on legal grounds or on so-called equitable grounds. The seriousness of the misrepresentation would make no difference. All misrepresentations would be caught by this provision.

The net effect of these proposals would be to save the Government of Canada money on the one hand and deny immigrants access to the Immigration Appeal Division where all the circumstances of their case could be considered.

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Judicial Review by the Federal Court

The White Paper seeks to reduce access to the Federal Court of Canada by the imposition of a leave requirement for those non-family-class immigrants and refugees whose overseas applications are refused.

This means that if an application for permanent residence or refugee status is refused, the aggrieved immigrant or overseas refugee would have to persuade the Federal Court that he or she has an arguable case to be granted a full hearing. Such a request would have to be made in writing and a decision by the Court denying leave would not need to be explained in reasons.

The Department has provided no justification for this proposal as there is no evidence of abuse at the present time. In 1998, there were only 350 visa officer cases decided by the Federal Court and 40 per cent of them went against the Government.

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This page last updated: October 4, 1999
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