ADMISSIBILITY HEARINGS LAWYER
Admissibility refers to the assessment of whether an individual meets the legal requirements to enter or remain in Canada. The IRPA establishes several grounds for inadmissibility under Section 34, including criminality (Section 36), security concerns (Section 34(1)), violations of human or international rights (Section 35), financial reasons (Section 39), health issues (Section 38), and misrepresentation (Section 40). Admissibility hearings are convened when there are concerns about an individual’s eligibility, providing an opportunity for the IRB to examine the case thoroughly.
Initiating the Admissibility Process:
Admissibility hearings can be triggered in various scenarios, such as when a foreign national or permanent resident is alleged to have committed a criminal offense, failed to comply with immigration regulations, or provided false information in their application. The Canada Border Services Agency (CBSA) or Immigration, Refugees and Citizenship Canada (IRCC) typically initiates the process by issuing a Notice to Appear under Section 44, outlining the grounds for inadmissibility.
Role of the Immigration and Refugee Board (IRB):
The IRB is an independent administrative tribunal responsible for overseeing admissibility hearings. Comprising divisions like the Immigration Division (ID) and the Immigration Appeal Division (IAD), the IRB ensures a fair and impartial assessment of each case. The ID conducts initial hearings, while the IAD handles appeals.
Admissibility Hearing Process:
- Notice to Appear: The process begins with the issuance of a Notice to Appear by the CBSA, outlining the allegations and the grounds for inadmissibility.
- Disclosure and Evidence: Both the government and the individual involved have the right to present evidence. The CBSA or IRCC discloses its evidence, and the individual responds to the allegations.
- Hearing Before the Immigration Division: The Immigration Division conducts the initial admissibility hearing. A member of the IRB reviews the evidence, hears submissions, and determines whether the individual is admissible or not.
- Appeal to the Immigration Appeal Division: If the Immigration Division finds an individual inadmissible, they may appeal to the Immigration Appeal Division. This division reviews the case, considers new evidence, and assesses whether the decision was fair and reasonable.
- Removal Order: If deemed inadmissible and exhausting all avenues of appeal, a removal order may be issued, leading to potential removal from Canada. There are three distinct types of Removal Orders issued by Immigration, Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA), each indicated by a specific form number. These orders include Departure Orders, Exclusion Orders, and Deportation Orders.
- Departure Order: Upon receiving a Departure Order, individuals are required to leave Canada within 30 days of the order taking effect. Departure must be confirmed with the CBSA at the port of exit. Adherence to these procedures allows the possibility of returning to Canada in the future, provided the entry requirements are met. Failure to depart within 30 days or not confirming the exit with the CBSA results in the automatic conversion of the Departure Order into a Deportation Order.
- Exclusion Order: An Exclusion Order prohibits an individual from returning to Canada for a period of one year. To return within this timeframe, an Authorization to Return to Canada (ARC) must be obtained. In cases where an exclusion order is issued for misrepresentation, the prohibition extends to five years. Repayment of removal costs is mandatory if the CBSA covered the expenses.
- Deportation Order: A Deportation Order imposes a permanent bar on an individual’s return to Canada unless an ARC is successfully applied for. Repayment of removal costs covered by the CBSA is also a prerequisite for eligibility to return. Understanding the distinctions between these orders is crucial for individuals facing removal proceedings in Canada.
The Supreme Court of Canada in Baker v. Canada, and the IRCC Guidelines, impose a duty of Procedural Fairness on the decision makers. It provides that all immigration and citizenship applicants must be provided:
- No unnecessary delay in application processing;
- Decision based in IRPR and IRPA;
- A fair and unbiased assessment;
- Concerns that a decision maker may have; and
- A reasonable opportunity to address those concerns.
An Applicant may appeal the IAD’s decision by way of a Judicial Review before the Federal Court.
Importance of Legal Representation:
Given the complexity of immigration law and the potential consequences of inadmissibility, individuals facing admissibility hearings are strongly advised to seek legal representation. Immigration lawyers play a vital role in guiding applicants through the process, ensuring a thorough understanding of the allegations, presenting a robust defense, and navigating the intricacies of appeals.
In conclusion, admissibility hearings represent a pivotal component of the Canadian immigration system, tasked with evaluating an individual’s eligibility to enter or remain in the country. The Immigration and Refugee Board of Canada (IRB) oversees these hearings, examining various grounds of inadmissibility defined in the Immigration and Refugee Protection Act (IRPA). Initiated by a Notice to Appear by the Canada Border Services Agency (CBSA), admissibility proceedings may arise from criminal offences, regulatory non-compliance, or false information in applications. The IRB, with its divisions, the Immigration Division (ID) and the Immigration Appeal Division (IAD), ensures a fair and impartial assessment. The process involves a Notice to Appear, disclosure of evidence, hearings before the Immigration Division, and potential appeals to the Immigration Appeal Division. Different types of Removal Orders, including Departure Orders, Exclusion Orders, and Deportation Orders, carry specific implications, emphasizing the importance of understanding these distinctions. Procedural fairness, mandated by the Supreme Court of Canada and IRCC Guidelines, guarantees timely processing, decisions based on relevant laws, unbiased assessments, and a reasonable opportunity for applicants to address concerns.
Recognizing the significance of legal representation in navigating this intricate process is crucial, as legal professionals can guide individuals through potential judicial reviews, ensuring the protection of their immigration status and future opportunities in Canada.
At Kozyrev Law, our dedicated team understands the intricate nature of admissibility hearings in the Canadian immigration landscape. We recognize the pivotal role these hearings play in determining eligibility for entry or continued residence. Our commitment is to provide comprehensive legal support to individuals facing admissibility challenges, guiding them through the complexities of the Immigration and Refugee Protection Act (IRPA) with expertise. From the initiation of the admissibility process to hearings before the Immigration Division and potential appeals to the judicial review before the Federal Court, our seasoned professionals are well-versed in navigating each stage. We prioritize procedural fairness, ensuring that our clients have a fair and unbiased assessment, addressing concerns promptly. Kozyrev Law stands as a trusted ally, dedicated to safeguarding the immigration status and future opportunities of our clients in Canada.
Note: The information presented in this article is not intended to constitute legal advice. It is recommended to refer to official government publications and guidelines for accurate and up-to-date information. For obtaining legal advice tailored to the specific circumstances of your case, it is advised to consult with a qualified professional.