9 May

Admissibility Hearings before the Immigration Division of the IRB

Posted in: Immigration Alerts

What is an Admissibility Hearing?

An Admissibility Hearing is a proceeding before the Immigration Division of the Immigration and Refugee Board at which a Board Member is tasked with determining whether an individual in inadmissible to Canada and should be deported.

Inadmissibility can be the result of criminal convictions either in Canada or abroad or criminal offences committed abroad even though there may have been no conviction. Other common types of admissibility hearings are convoked to determine whether a person has misrepresented themselves or withheld a material fact from immigration or whether they are a member of a criminal organization.  The Immigration Division also conducts hearings into whether a person has committed an act of terrorism or espionage against Canada or another country.

The nature of an Admissibility Hearing will largely depend upon the allegations that are made against the Person Concerned (the subject of the Admissibility Hearing). Generally speaking, the simpler and easier to prove the allegations, the faster and more straightforward the Admissibility Hearing will be. In the case of a complex allegation, such as espionage, hearings may last many days and involve the calling of a significant amount of evidence including expert testimony.

Because a hearing is caused by the Minister referring a report alleging inadmissibility to the Immigration Division, it is the Minister who bears the burden of proof. The burden of proof is typically on a civil standard (a balance of probabilities) but in certain cases such as organized criminality, the Minister’s burden is considerably lower (that there exist “reasonable grounds to believe” the allegations are well founded).

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Do I need an immigration lawyer?

Upon learning that the Minister has referred their case to an admissibility hearing, it is imperative that the Person Concerned consult a lawyer immediately. It is important to review the Minister’s allegations as well as the evidence upon which those allegations are based in order to determine whether one should concede their inadmissibility or fight against the allegations. This initial assessment is of crucial importance because it will typically dictate the strategy of your immigration case in the future. Once you have received the advice of an experienced immigration lawyer, you can begin preparing your case by gathering evidence and determining whether to call witnesses to testify on your behalf.

The Admissibility Hearing itself is a quasi-judicial process. This means that a member of the Immigration Division acts as a finder of fact and an arbiter of law, presiding over an adversarial process between the Canada Border Services Agency [CBSA] and the Person Concerned. Even though strict rules of evidence do not apply, the hearing itself can be drawn out and very technical in nature.

If the Immigration Division is satisfied that a person is inadmissible, it must issue a removal order. One common misunderstanding about hearings before the Immigration Division is that individuals have the ability to argue that there exist sufficient humanitarian and compassionate grounds to warrant an exception to be made in their case.  Unfortunately, the Immigration Division does not possess the jurisdiction to grant people equitable relief. This means that the member does not have the ability to exempt a person from any of the harsher elements of Canada’s immigration and refugee laws even if there exist compelling humanitarian or compassionate reasons to do so.

In some cases, this can be done in an appeal of the Immigration Division`s decision to the Immigration Appeal Division [IAD] of the Immigration and Refugee Board.  However, not every Person Concerned has a right of appeal to the IAD.  In those the only opportunity to challenge a decision is to file an Application for Leave and for Judicial Review in the Federal Court of Canada. However, the Federal Court does not have the jurisdiction to hear new evidence or arguments or to rule that there exist sufficient humanitarian and compassionate reasons to grant relief. Rather, the Federal Court will simply review the Immigration Division’s decision and determine whether the Tribunal made an error of law when it rendered its decision.

The number of potential avenues of appeal of judicial review that may be available after a removal order has been issued are another important reason to seek the advice of an immigration lawyer at the earliest opportunity. Contact Mamann, Sandaluk, & Kingwell LLP to arrange an urgent consultation.

Joel Sandaluk is a Partner at Mamann, Sandaluk, and Kingwell LLP and the leader of the Immigration Litigation Group.

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