Aiken-Grey Chapter 5 Extracts PDF

1. A Two-Step Process As a general rule—but with many exceptions—, foreign nationals obtain the right to enter and remain in Canada, as well as the temporary or permanent status allowing them to do so, in two steps. They must first apply for a visa from abroad, either alone or with accompany...

1. A Two-Step Process As a general rule—but with many exceptions—, foreign nationals obtain the right to enter and remain in Canada, as well as the temporary or permanent status allowing them to do so, in two steps. They must first apply for a visa from abroad, either alone or with accompanying family members. These family members may be the spouse or common-law partner of the applicant, their dependent child or dependant grandchild (IRPR, s. 1(3)). (Definitions of these terms are discussed in Chapter 9, Family Class.) Visa in hand, they must next apply for admission to Canada at a port of entry. This two-step process is reflected in several places in the IRPA and its regulations, the IRPR. For instance, s. 11(1) of the IRPA states: 11 (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. Section 20 of the IRPA then governs acquisition of status upon entry: 20 (1) Every foreign national … who seeks to enter or remain in Canada must establish, (a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and (b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay. Section 21 of the IRPA states that a foreign national becomes a permanent resident if an officer is satisfied that they have applied for that status; meet the obligations in s. 20(1)(a) (as well as any applicable provincial criteria, if applying through a provincial nominee program or to immigration to Quebec); and are not inadmissible. Section 22 similarly sets out that a foreign national becomes a temporary resident if an officer is satisfied they have applied for that status; meet the obligations in s 20(1)(b); and are not inadmissible. Section 22 of the IRPA contains a further requirement that the foreign national not be the subject of a ministerial declaration under s. 22.1 of IRPA. Section 22.1, which was added to the IRPA in 2013, grants the Minister of Immigration, Refugees and Citizenship a non-delegable discretionary power to deny admission to foreign nationals as temporary residents on public policy grounds: 1  22.1(1) The Minister may, on the Minister’s own initiative, declare that a foreign national … may not become a temporary resident if the Minister is of the opinion that it is justified by public policy considerations. A declaration may remain in place for up to three years, but may be revoked or shortened by the minister (IRPA, ss. 22.1(2)-(3)). The power to make such declarations has been criticized by Donald Galloway and Jamie Liew as providing excessive discretion: “[T]he section appears to give the minister a carte blanche to prohibit any particular individual from entering Canada. The ability of Canadians to associate with nationals from other countries has been substantially curtailed and is now dependent not on a framework of legal rules but on the government’s assessment that such association is not contrary to public policy.” 1 The IRCC has published guidelines for the exercise of this power, indicating that “in accordance with the objectives of the IRPA and in exceptional circumstances, the Minister may consider the following behaviours, activities and circumstances of a foreign national” before going on to mention three broad areas of concern: the promotion of terrorism, violence, or criminal activity; a foreign national who is an official, or an associate or relative of an official, from a country targeted for sanctions; or a foreign national who may pose a risk to public health in Canada. 2 A review of IRCC’s available annual reports on immigration reveals that the Minister has exercised this power twice since it was put in place. 3 2. Visas A visa—either a permanent or temporary resident visa—is an “official counterfoil document issued by a visa office abroad that is placed in a person’s passport to show that he or she has met the requirements for admission to Canada as a temporary resident (a visitor, student or worker). A counterfoil is a specially designed sticker on which missions abroad print visa information.” 4 In keeping with s. 11 of the IRPA, noted above, the issuance of a visa indicates that the visa officer was satisfied that the visa- holder fulfilled the requirements for becoming a permanent or temporary resident, under a specified class or program. Issuance of a visa, however, does not confer status. 1Jamie Chai Yun Liew & J Donald C Galloway, Immigration Law, 2d ed (Toronto: Irwin Law Inc., 2015) at 90. 2IRCC, “Guidelines for the Negative Discretionary Authority” (15 July 2015), online: Government of Canada [lt] https://www.canada.ca/en/immigration-refugees- citizenship/corporate/mandate/policies-operational-instructions-agreements/guidelines-negative- discretion-authority.html[gt]. 3 IRCC, “Annual Report to Parliament, 2016” (31 Oct 2016), online: Government of Canada [lt]https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications- manuals/annual-report-parliament-immigration-2016.html[gt]; IRCC, “Annual Report to Parliament, 2015” (08 March 2016), online: Government of Canada [lt] https://www.canada.ca/en/immigration- refugees-citizenship/corporate/publications-manuals/annual-report-parliament-immigration- 2015.html[gt]. 4 IRCC, “Glossary” (12 December 2019), online: Government of Canada [lt]http://www.cic.gc.ca/english/helpcentre/glossary.asp[gt]. 2  Applying for a visa requires making an application online or to an address specified by the IRCC on its website (IRPR, s. 11). The foreign national may produce requested documents and may be required to appear for an interview (during which they may have a right to counsel, depending on the circumstances 5), submit to a medical examination, provide biometrics (such as fingerprints), as well as provide various documents permitting officers to carry out background checks to determine if they or their family members (including non-accompanying ones) are inadmissible. If a visa is issued, it will be valid only up to a specified expiration date, after which the foreign national may no longer rely on it to enter Canada. However, the expiration date of the visa does not indicate when the foreign national’s (or new permanent resident’s) status ends once they have entered Canada. In accordance with s. 20 of the IRPA, noted above, temporary or permanent resident status is definitively established when the visa holder arrives at a port of entry in Canada and is examined by an officer. At that point, the holder of a permanent resident visa must also show that they have come to Canada to establish permanent residence. The temporary resident visa holder will have to show they will leave Canada at the end of the period of authorized stay. 3. Applying for Permanent Resident Visas In addition to s. 11 of the IRPA, s. 6 of the IRPR states that a “foreign national may not enter Canada to remain on a permanent basis without first obtaining a permanent resident visa.” The application process for permanent resident visas may vary considerably. Under programs permitting applications from within Canada—such as the Spouse or Common-Law Partner in Canada Class (see IRPR ss. 123-130) or the Canadian Experience Class (IRPR, s. 87.1)—there is no requirement to obtain a visa. Applicants to such programs must instead, once their application has been processed and inadmissibility checks have been carried out, undergo an interview with an immigration officer to ensure they meet statutory and regulatory requirements. Another source of variation is that for certain economic programs, applicants will have already used the Express Entry system, under which a foreign national fills out an online “expression of interest” and may follow up with an actual application once invited to do so. However, in such cases “application forms are often not required.” 6 The Express Entry system is discussed in detail in Chapter 8, Economic Immigration. The information in the next paragraph covers applications for permanent resident visas from abroad for programs outside this system, or for Express Entry applications once an invitation has been issued. For applicants abroad, including those who may have been invited under Express Entry, a visa will be issued if the visa officer is satisfied that the foreign national: (1) has made an application in accordance with the regulations; (2) is coming to Canada to establish permanent residence; (3) fulfills the criteria for the class under which they are applying; and (4) neither they nor their accompanying family members are inadmissible (IRPR, s. 70(1)). For applicants from Quebec, the applicable criteria include having 5 See Ha v Canada (Minister of Citizenship and Immigration), 2004 FCA 49. 6 Desloges, Sawicki & Fournier-Ruggles, supra note 33 at 628. 3 received a selection certificate from the province of Quebec, indicating that they meet provincial selection criteria (IRPA, ss. 70(3) and 71). In general, all applications must be made in writing (IRPR, s. 10). For purposes of screening for inadmissibility, all applicants (including accompanying and, in most cases, non-accompanying family members) for permanent residence must undergo a medical examination (IRPA s. 16(2)(b) and IRPR s. 29-30). IRCC may require DNA tests to confirm certain family relationships. 7 In most cases, applicants will also have to obtain a police certificate for any country in which they have lived for six months or more since the age of 18. 8 Based on this information, as well as information from biometric screening and a search of the Canadian Police Information Centre, visa officers will assess the applicants’ eligibility for their program and conduct admissibility checks. They will also likely conduct an interview of the applicants. If satisfied that the foreign national meets the requirements set out in the regulations or the relevant ministerial instructions, visa officers will issue a visa or a “confirmation of permanent residence”. These are the documents that must be brought, along with supporting documents (including proof that applicants can support themselves and their family), when coming to Canada to undergo examination at a port of entry. 9 4. Applying for Temporary Resident Visas (TRVs) and Electronic Travel Authorizations (eTAs) Section 7 of the IRPR states that a “foreign national may not enter Canada to remain on a temporary basis without first obtaining a temporary resident visa.” In general, foreign nationals may apply for a visa to enter Canada as temporary residents under one of three categories—visitors (IRPR, s. 191-93), workers (IRPR ss. 194- 209.977), and students (IRPR, ss. 210-222), although there is also the possibility of coming under a temporary resident permit (IRPA, s. 24) for humanitarian reasons. In the case of students and workers, foreign nationals will also need to obtain study or work permits. (Requirements for study permits are discussed below; work permits are discussed in Chapter 8, Economic Immigration.) There are four kinds of temporary resident visas: (1) single-entry visas; (2) multiple-entry visas; (3) transit visas; and (4) so-called “super visas.” A single-entry visa permits entry into Canada only once during the term of its validity, generally six months. A multiple-entry visa, as its name suggests, permits re-entry on different occasions for up to 10 years. As of February 2014, all applications for TRVs have been treated as applications for the 10-year multiple-entry visa, leaving it to the visa officer to decide 7IRCC, “DNA Testing” (23 Jan 2019), online: Government of Canada [lt] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications- manuals/operational-bulletins-manuals/standard-requirements/dna-testing.html[gt]. 8IRCC, “About police certificates” (11 April 2019), online: Government of Canada [lt] https://www.canada.ca/en/immigration-refugees-citizenship/services/application/medical- police/police-certificates.html[gt]. 9 IRCC, “If your Express Entry application is approved” (28 Dec 2018), online: Government of Canada [lt] https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate- canada/express-entry/application-approved.html[gt]. 4 whether to issue a multiple- or single-entry visa. 10 Foreign nationals who would need a temporary resident visa to come to Canada will generally need to obtain a transit visa to stop in a Canadian airport en route from one country to another. 11 In 2013, the government introduced a new "super visa" for parents and grandparents of Canadian citizens and permanent residents. It is a multiple-entry, two-year, temporary resident visa, renewable for up to ten years. Unlike permanent residents, temporary residents who are visitors on super visas may not access public health care, and applicants for a super visa must demonstrate that they have obtained Canadian private health insurance for at least one year. 12 As explained further in Chapter 10, Family Class, parents and grandparents of Canadian citizens and permanent residents are also members of the family class under the IRPA, and therefore qualify for sponsorship and entry as permanent residents. In 2011, however, the government effectively halted processing of the existing inventory of 165,000 applications; eventually, it introduced the super visa. In early 2014, processing of sponsorship applications of parents and grandparents resumed, but the existing inventory was dropped. The government introduced revised and much stricter financial criteria for eligibility, and set an annual quota on applications. There is no cap on the super visa program. As with applications for permanent resident visas, TRV applications must either be submitted online or, if submitted in writing, to an address specified by the Minister. Applications first go to “visa application centres” (VACs) – private companies, which check applications for completeness before forwarding them to IRCC. 13 Once forwarded to IRCC, the Regulations state that an officer shall issue a temporary resident visa (TRV) where the applicant has satisfied the officer that he or she: (1) has applied as a visitor, worker, or student; (2) will leave Canada by the end of the authorized period (as is also required by IRPA, s. 20(1)(b), noted above); (3) holds a valid passport or similar document; (4) meets the requirements for admission as a visitor, worker, or student; (5) is not inadmissible; and (6) has submitted to a medical examination if required (IRPR, s. 179). It has long been established that applicants bear the onus of satisfying the officer that the eligibility criteria for a visa are or will be met: 10IRCC, “Issuing a visa: Transit, single-entry and multiple-entry visas” (4 Dec 2018), online: [lt] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications- manuals/operational-bulletins-manuals/temporary-residents/visitors/three-types-visas.html[gt]. 11Citizens of some states that are not visa-exempt are nevertheless exempted from transit visa requirements: see Government of Canada, “Do I need a visa if I’m just travelling through Canada on my way to another country?” (12 Dec 2019), online: Government of Canada [lt]http://www.cic.gc.ca/english/helpcentre/answer.asp?q=420&t=16[gt]. 12Access to public health-care coverage for temporary residents who are international students or temporary foreign workers varies from province to province. 13 IRCC, “Place of application for temporary resident visas (TRVs), electronic travel authorizations (eTAs), study permits, work permits and visitor records” (4 June 2019), online: Government of Canada [lt]https://www.canada.ca/en/immigration-refugees- citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary- residents/visitors/place-application-visa-electronic-travel-authorization-study-permit-work- permit.html[gt]. 5  A visa officer may inquire further if he or she considers a further enquiry is warranted. Obviously, a visa officer cannot be wilfully blind in assessing an application and must act in good faith. However, there is no general obligation on a visa officer to make further inquiries when an application is ambiguous. The onus is on an applicant to file a clear application together with such supporting documentation as he or she considers advisable. The onus does not shift to the visa officer and there is no entitlement to a personal interview if the application is ambiguous or supporting material is not included. 14 Applicants must continue to meet the requirements to be admitted when they present themselves for entry (IRPR, s. 180). The most common concern in visa applications is whether the applicant is likely to leave Canada at the end of the authorized period instead of staying illegally or claiming refugee protection (IRPR, s. 183). Applicants must convince the visa officer that their connection to their country of origin is sufficiently strong to motivate them to return. 15 The guidance to immigration officers published online suggests several questions for officers to ask themselves when reviewing an application or in an interview. These include: “Is the time requested [for the stay in Canada] limited? Indeterminate?”; “Does the person have family in Canada? If so, what is their immigration status in Canada?”; “Is the person employed? If yes, at what salary? In what position? Has the applicant's employer approved a request for leave?”; “Is travel consistent with local customs or practices? Has the person travelled before?” 16 Different questions will obviously be relevant depending on whether the foreign national is seeking to come to Canada as a visitor, student, or worker. Special considerations will also apply when issuance of a temporary resident permit for humanitarian reasons is under consideration. Until 2002, under s. 9(1.2) of the former Immigration Act, persons who applied for a TRV were required to satisfy the visa officer that they were not an immigrant—that is, under the terminology of the former Act, someone who intended to remain in Canada permanently. Subsection 22(2) of the IRPA now recognizes the possibility of dual intent: 22(2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay. Under this provision, one can intend (in the sense of desire) to immigrate to Canada if possible without negating the intent (in the sense of commitment) to depart 14 Lam v Canada (MCI), 152 FTR 316 (FC) at para 4. 15 IRCC, “Temporary residents: Eligibility and admissibility considerations” (1 April 2019), online: Government of Canada [lt]https://www.canada.ca/en/immigration-refugees- citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary- residents/visitors/eligibility-admissibility-considerations.html[gt]. 16 Ibid. 6 from Canada upon expiry of temporary resident status. 17 In light of recent shifts toward migration programs in which a foreign national enters Canada first as a temporary worker or student and then may transition to permanent residence—under programs like the Canadian Experience Class or the Spouse or Common-Law Partner in Canada Class, discussed in Chapter 8, Economic Class—the acceptance of dual intent now seems necessary. The IRCC “Help Centre” provides the following guidance to unsuccessful applicants for temporary resident visas: How do I get help if my visa application is refused? There is no formal appeal process if your application for a temporary resident visa is refused. Should you wish to re-apply, you should do so only if your situation has changed substantively or you have significant new information to submit. 18 While there is no right of appeal to the Immigration Appeal Division, foreign nationals refused a temporary resident visa may seek judicial review (with leave) of the decision at Federal Court. The difficulty of doing so from abroad is compounded by the deference the court’s give to immigration officers’ decisions on the substance of the decision to refuse a visa application, as well as by the Federal Court's view that foreign nationals have only a weak claim to procedural fairness. As stated in Chhetri v Canada (Citizenship and Immigration): 19 Foreign nationals are entitled to the minimum degree of procedural fairness. There is no obligation on the visa officer to advise the applicant of concerns about, or deficiencies in, their application or to offer an interview. Nor … does the onus shift to the visa officer to take any additional steps to address or satisfy outstanding concerns. 17For discussion, see e.g. Rebmann v Canada (Solicitor General), 2005 FC 310 at para 19, where Justice Martineau wrote: “As long as there was an intention to leave Canada when his temporary status expired, even if the applicant had been contemplating obtaining permanent resident status, it was not a violation of the Act to enter Canada with dual intent.” It is nonetheless worth noting that visa officers continue to refuse applications on this basis, and their decisions are occasionally upheld as reasonable: Solopova v Canada (Citizenship and Immigration), 2016 FC 690. 18 Help Centre, online: Government of Canada [lt]http://www.cic.gc.ca/english/helpcentre/answer.asp?q=422&t=16[gt]. 19 Chhetri v Canada (Citizenship and Immigration), 2011 FC 872. 7 The foreign national has no right or interest at play. It is for these reasons that it is often difficult to set aside, on judicial review, a visa officer's decision. 20 The Court has nonetheless found that, although officers are not required to inform applicants regarding concerns about whether legislative requirements have been met, they must give applicants notice if they have credibility concerns. 21 Refused applicants do, in fact, reapply for visas. Some also seek judicial review. Sometimes they succeed, as in the following case. Khatoon v Canada (Citizenship and Immigration) 2008 FC 276 TREMBLAY-LAMER J: This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a decision of a visa officer (the "officer"), dated June 1, 2007, wherein the officer refused the applicant's application for a temporary resident visa in the visitor class (a "visitor's permit"). Background The applicant is a citizen of Pakistan. She applied for a visitor's permit in order to attend her granddaughter's wedding. The application was received along with a letter of invitation from the applicant's grandson at the Canadian High Commission in Islamabad, Pakistan on May 22, 2007. The officer refused the application, checking off the boxes corresponding to the following two reasons on the standard refusal letter: You have not satisfied me that you meet the requirements of Regulation 179: that you would leave Canada at the end of the temporary period if you were authorized to stay. In reaching this decision I considered your ties to your country of residence/citizenship balanced against factors which might motivate you to stay in Canada. You have not provided sufficient documentation to support your/your host's income and assets. In the present case, the applicant challenges the officer's findings that she would not leave Canada at the end of an authorized stay, and that she had not provided sufficient documentation to support her or her host's income and assets. … 20 Ibid, at para 10. 21 Kaur v Canada (Citizenship and Immigration), 2011 FC 219. 8  Accordingly, the officer's findings will remain undisturbed unless they are "clearly irrational" or "evidently not in accordance with reason" …. At the outset I find it useful to examine the scope of discretion within which the factual findings at issue were made. An indication of the scope of discretion can be found in the objectives of the Act and the ministerial guidelines (Baker v Canada (Minister of Citizenship and Immigration), 2 SCR 817 (QL), at para. 67). The objectives of the Act suggest that family reunification is an important consideration. Particularly, section 3.(1)(d) stipulates that one of the objectives of the Act is "to see that families are reunited in Canada." Instructively, in Gupta v. Canada (Minister of Citizenship and Immigration), F.C.J. No. 1099 (QL), at para. 11, in the context of the previous Act, Gibson J. held that "the wording of this paragraph is broad enough to encompass the reunion in Canada of Canadian citizens and permanent residents … with their close relatives from abroad." Moreover, in Zhang [Zhang v Canada (Minister of Citizenship and Immigration), 2003 FC 1493] … at paras. 8-9, Pinard J. cited these comments with approval in the context of the current Act. On the issue of the importance of family reunification in the discretionary decision-making context, the applicant has drawn the Court's attention to the associated ministerial guidelines. Specifically, section 5.13 of Chapter 11 of the Overseas Processing Manual, (the "OP 11 manual"): Parents and Grandparents In April 2005, the Minister of Citizenship and Immigration made a policy decision to encourage visa officers to be more flexible in issuing temporary resident visas (TRVs), including multiple entry visas, to parents and grandparents: who have applications for permanent residence in process, and who wish to visit but do not intend to immigrate to Canada. A review of the CAIPs notes indicate that the visa officer was conscious of the fact that the applicant had 4 children in Pakistan, had travelled abroad previously to Saudi Arabia, had a son in Canada who was out of status, and a grandson who was a Canadian citizen. Further, the officer noted that the tax documentation from the grandson and his wife indicated a "decent income," but no proof was provided of the grandson's or his wife's employment and/or savings, or proof of the applicant's funds. The affidavit submitted by the visa officer, dated September 24, 2007 expands upon the CAIPs notes. Particularly, the officer indicates at para. 9, that because the applicant's son had remained in Canada without status, she might be willing to do the same. Further, at para. 10, he asserts that based on his knowledge of certain cultural practices in Pakistan, specifically that widowed elderly women normally live with their sons and not daughters, the fact that the applicant's only son was living in Canada was a concern. He also indicates at para. 13, that the applicant's trip to Saudi Arabia is not usually considered to be major international travel. 9  With respect to the first finding, that the officer was not convinced that the applicant would leave Canada upon expiry of the relevant period, I find the officer's conclusion to be patently unreasonable. First, the fact that her son was in Canada out of status cannot be used to impute similar conduct to the applicant. People are to be judged according to their own behaviour, not on that of their family members. Second, while I appreciate the insights that the officer may have gained through his time Pakistan, the mere fact that elderly widowed women normally, in the view of the officer, live with sons and not daughters, cannot be used to attack the bona fides of the applicant's application. This type of gross generalization is patently unreasonable. Third, the officer disregarded the applicant's previous trip to Saudi Arabia, stating that "a trip to Saudi Arabia is not usually considered to be major international travel in the context in which I assess applications for temporary residence." With respect, a trip from Pakistan to Saudi Arabia is international travel. With regards to the officer's findings relating to the documentation of funds, the tax returns of the applicant's grandson and his wife were submitted. The officer was satisfied that the income of the host and his wife was decent. I note that in the context of determining whether sufficient funds are available, section 7 of Chapter 11 of the Overseas Processing Manual, (the "OP 11 manual") indicates: When warranted, officers may consider a combination of any of the following documents as evidence of ability to support an intended visit. The list is not exhaustive but demonstrates various resource documents that may be presented: bank statement(s) or deposit book(s) of applicant (and spouse) that show accumulated savings; applicant's (and spouse's) letter of employment or employment book, providing name of employer, applicant's position/occupation, date employment commenced and annual earnings; host's or family member in Canada (and spouse's) evidence of income: previous year Revenue Canada Notice of Assessment indicating annual income; or alternately, letter from employer(s) showing position, date employment commenced and annual earnings; evidence of size of family for host or family member in Canada (to equate earnings with size of family to ensure ability to support long-term visit). [Emphasis added.] While the officer is free to consider a combination of any of the listed documents, given that the he was satisfied that the income from the host and spouse 10 was decent, it was patently unreasonable to require that the applicant, a woman in her 80s, produce evidence of her personal funds as well. For these reasons, the application for judicial review of the visa officer's decision is granted. The decision of the visa officer is quashed. The matter is remitted back for re-determination by a different visa officer. Judgment THIS COURT ORDERS that the application for judicial review of the visa officer's decision is granted. The decision of the visa officer is quashed. The matter is remitted back for re-determination by a different visa officer. Questions 1. How has Justice Tremblay-Lamer arrived at her conclusion? What resources does she cite in considering the scope of the officer’s discretion? What flaws does she identify in the officer’s reasoning? 2. Critics often charge that the rate of refusals for visitor visas is too high. In a 2018 special report, the Globe and Mail reported that: In 2012, the number of rejections was about 18 per cent of the total number of applications for Canadian visitor visas (excluding student visas). By last year, the refusal rate had increased to 26 per cent. And in the first three months of this year, the refusal rate had risen again to about 30 per cent. Similarly, the refusal rate for student visas has also increased, from 26 per cent in 2012 to a new rate of 33 per cent last year.22 What might explain this trend? Does it point to a problem? Why or why not? Citizens of several countries are exempt from the requirement to obtain a visa. Such foreign nationals may simply present themselves at a Canadian port of entry. Although the list of visa-exempt countries fluctuates, it typically includes most EU states, the United States, Australia, New Zealand, Israel, as well as others (See IRPR, s. 190 and schedule 1.1 for the full list; at the time of writing, it included 47 countries). Individuals who hold a US “green card” (indicating permanent resident status in the United States) are also exempt from the requirement to obtain a visa prior to entry (IRPR s. 190(1)(c)). The imposition or rescission of a visa requirement is a political decision that carries diplomatic implications. In general, countries believed to produce large numbers of asylum seekers will not be exempt, but this is not a hard and fast rule. Mexico is currently visa-exempt (IRPR, Schedule 1.1), despite the fact that Mexican citizens had 22 Geoffrey York & Michelle Carbert, “Access denied: Canada’s refusal rate for visitor visas soar” (8 July 2018), online: The Globe and Mail [lt]https://www.theglobeandmail.com/world/article-access- denied-canadas-refusal-rate-for-visitor-visas-soars/[gt]. See also Alex Neve, “The visa process is broken. And it must be fixed” (11 July 2018), online: The Globe and Mail [lt]https://www.theglobeandmail.com/opinion/article-the-canadian-visa-process-is-broken-and-it- must-be-fixed/[gt]. 11 2,333 refugee protection claims referred to the Immigration and Refugee Board from January to June of 2019, the third highest number of claims for that period. 23 States may take offence at being removed from the list of visa-exempt countries and, in some cases, have imposed visa requirements on Canadians in retaliation. In November 2016, the government implemented a new requirement for foreign nationals from visa-exempt countries flying to or transiting through Canada to apply for and obtain an electronic travel authorization (eTA). The eTA program is enabled by IRPA, s. 11(1.01) as well as IRPR, ss. 7.1, 12.04-12.07 and includes some exceptions, such as United States citizens or accredited diplomats (IRPR, s. 7.1(3)). The program was put in place to harmonize Canadian border enforcement systems with that of the United States, in accordance with a commitment Canada made in a February 2011 joint declaration with the United States, the Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness. 24 The declaration was accompanied by the Beyond the Border Action Plan, 25 under which Canada committed to implement the eTA in order “to improve screening of all visa-exempt foreign nationals.” 26 The eTA program has as its main purpose the flagging of potentially inadmissible foreign nationals before they board a Canada-bound flight. Applications for eTAs are made online and must be made for each family member. Most applications are granted automatically within minutes, but applications that give rise to concerns regarding identity or inadmissibility may be treated by an immigration officer. 27 Political scientist Christopher G Anderson has criticized eTAs as another means of preventing foreign nationals from coming to Canada to make refugee protection claims. Anderson notes that the capacity to identify potential refugee protection claimants prior to boarding Canada-bound aircraft was touted as a major benefit of the new system. One official said: “With eTA, if there are questions around legitimacy of traveler intent and an eTA is refused, then that’s a cost of $30,000 per refugee claimant…” 28 Other concerns that have been raised about eTAs include the fact that it may lead to more cases of inadmissibility for misrepresentation. Errors, even innocent ones, in an eTA 23 Immigration and Refugee Board of Canada, “Refugee Protection Claims (New System) by Country of Alleged Persecution – 2019” (20 Nov 2019), online: Immigration and Refugee Board of Canada [lt]https://irb-cisr.gc.ca/en/statistics/protection/Pages/RPDStat2019.aspx[gt]. 24 Public Safety Canada, ”Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness” (4 Feb 2011), online: Public Safety Canada [lt]https://www.publicsafety.gc.ca/cnt/brdr-strtgs/bynd-th-brdr/index-en.aspx[gt]. 25 Public Safety Canada, “Beyond the Border Action Plan” (4 Feb 2011), online: Public Safety Canada [lt]https://www.publicsafety.gc.ca/cnt/brdr-strtgs/bynd-th-brdr/ctn-pln-en.aspx[gt]. 26 Ibid. 27 IRCC, “Manually processing electronic travel authorization applications” (5 July 2019), online: Government of Canada [lt] https://www.canada.ca/en/immigration-refugees- citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary- residents/eta/manually-processing-electronic-travel-authorization-applications.html[gt]. 28Christopher G Anderson, “Out of Sight, Out of Mind: Electronic Travel Authorization and the Interdiction of Asylum Seekers at the Canada-US Security Perimeter” (2017) 47:4 American Review of Canadian Studies 385-407 at 399. 12 application may lead to inadmissibility for misrepresentation. 29 Counsel have also raised concerns that sometimes eTAs may be cancelled peremptorily, even mid-flight. 30 29 See, Smith v Canada (Citizenship and Immigration), 2018 FC 1020. 30Aris Daghighian, “Navigating Challenges and Procedures: Misrepresentation at the Port of Entry,” paper presented at the Law Society of Ontario Immigration Law Summit (6 November 2019) at 9. Recent cases on eTA cancellations include: Enache v Canada (Citizenship and Immigration), 2019 FC 182; Kiss v Canada (Citizenship and Immigration), 2019 FC 1247: ibid, at 10. 13