Canadian immigration aims to facilitate entry into Canada for persons who meet the requirements set out in the Immigration and Refugee Protection Act (IRPA). Even if a person meets all eligibility requirements, they may still be refused if the Canadian Border Security Agency (CBSA) considers them to be inadmissible to Canada. This is best summed up by the principle enounced in Canada (Minister of Employment and Immigration) v Chiarelli that "non-citizens do not have an unqualified right to enter or remain in [Canada]." In this blog, we'll review reasons why someone may be considered inadmissible to Canada.
There are 10 general grounds of inadmissibility which can be found in sections 34 to 42 of the IRPA:
1. Security
2. Human Rights Violations
3. Criminality
4. Organized Criminality
5. Health
6. Financial Reasons
7. Misrepresentation
8. Cessation of Refugee Protection
9. Non-Compliance with the IRPA
10. Inadmissible family member.
Today let's look at reason number 2: Human Rights Violations
Denied Entry to Canada: Human or International Rights Violations
If you were found to have violated human or international rights, you may have been found guilty of one of the acts found in section 35 of the IRPA.
35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act;
(c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association;
(d) being a person, other than a permanent resident, who is currently the subject of an order or regulation made under section 4 of the Special Economic Measures Act on the grounds that any of the circumstances described in paragraph 4(1.1)(c) or (d) of that Act has occurred; or
(e) being a person, other than a permanent resident, who is currently the subject of an order or regulation made under section 4 of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).
A Foreign national may be inadmissible for violating human or international rights, whether they were committed in or out of Canada. This also includes individuals, other than permanent residents, who are nationals or representatives of a government or country against which Canada has imposed sanctions.
Human or International Rights Violations Defined
There are three parts to these offences:
1.) You have committed one of the below offences.
2.) The crime was part of a widespread, systematic attack
3.) It was directed against civilians
4.) The act violates international law
The offences in question can be found in the Crimes Against Humanity and War Crimes Act.
(3) The definitions in this subsection apply in this section.
crime against humanity means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. (crime contre l’humanité)
genocide means an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that, at the time and in the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. (génocide)
war crime means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. (crime de guerre)
If you have been found to have committed one of the offences as defined above, the next question will be to determine whether it was part of a widespread, systematic attack directed against civilians. The Immigration officer will look at the nature of the attack, how the attack took place and your alleged involvement in the attack. An important question is whether the applicant knew that their actions were part of the widespread or systematic attack in question.
What Can I do if an Immigration Officer determines that I am Human or International Rights Violations?
If your application to visit Canada is refused under section 35(1) of IRPA, it is important to first determine why the immigration officer came to this conclusion. Specifically, which offences are you being accused of, under which regime does the officer allege you to have participated in, and what role in the regime are you alleged to have had. Once you have made this determination, the next step is the review the evidence the officer used in making this determination and find an expert who can assist in countering the arguments of the immigration officer. Your defence to the accusations will greatly benefit from expert opinions if you are to be successful. This is often a difficult, expensive and time-consuming process, but well worth it in the end if you plan to visit, study, or take up residence in Canada permanently.
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