Exclusion and Removal

• Author: Donald Galloway
• Pages: 210-233

CHAPTER

12

EXCLUSION

AND

REMOVAL

This chapter outlines

two

processes

of

decision making:

the one

that

begins

at a

port

of

entry, relating

to

whether

a

person

should

be

allowed

to

come into Canada,

and the one

that

is

initiated inland

after

the

person

has

come

into

Canada, relating

to

whether

he or she

should

be

allowed

to

remain.

In

either case,

the

process

begins

with

a

decision

of an

immigration

officer,

and may

continue through

a

decision

of a

senior immigration

officer

and a

decision

of an

adjudi-

cator

at an

immigration inquiry.

It is a

process

in

which

the

minister

and the

deputy minister,

and

their delegates,

the

solicitor general

and

the

Security Intelligence

Review

Committee,

may

also intervene.

Ultimately,

it may

lead

to a

removal order being issued

by the

adju-

dicator

and

judicial intervention.

Three types

of

removal order

are

recognized

in the

Immigration

Act:

an

exclusion order,

a

deportation order,

and a

departure order.

The

effect

of

each

is

different.

Where

a

deportation order

has

been

issued,

the

subject shall

not be

allowed

to

return

to

Canada

after

removal

without

the

consent

of the

minister.1

Where

an

exclusion

order

has

been issued,

the

subject requires

the

minister's consent

for

a

return during

the

twelve months

after

the day of

removal.2

Where

a

departure

order

has

been

issued,

the

subject

may

return without

the

1

Immigration

Act,

R.S.C. 1985,

c.

1-2,

s.

55(1)

[IA].

2 IA,

ibid.,

s.

55(2).

210

Exclusion

and

Removal

211

consent

of the

minister,

if the

other requirements

of the Act and

Regulations

are

met.3

A

conditional deportation order,

a

conditional exclusion order,

or a

conditional departure order

may be

made where

the

individual

has

made

a

claim

to be a

Convention

refugee.4

Such orders will take

effect

only

after

a

negative

decision

has

been made against

the

claimant.5

Under section

33 of

the

Act,

a

dependent

family

member

may be

included within

a

removal order,

unless

the

dependant

is a

citizen

or a

permanent resident

who is

nineteen

or

over.

However,

no

person

may be

included

in a

removal order unless

he or

she has

been given

the

opportunity

to be

heard

at an

inquiry.6

A.

PORT

OF

ENTRY

DECISION

MAKING

All

persons seeking

to

come into Canada

are

subject

to an

examination

at a

port

of

entry.

The

port

of

entry (PE) volume

of the

Immigration

Manual

describes,

in

detail,

the

examination process.

In

most cases, only

a

brief pri-

mary

examination

is

conducted

by a

customs

officer,

who has

been desig-

nated

to act as an

immigration

officer.7

But

where

the

customs

officer

is not

satisfied

that

the

individual

should

be

allowed

to

come

in, the

individual

will

be

diverted

to a

secondary examination

by an

immigration

officer.8

According

to

section

8 of the

Act,

(1)

Where

a

person

seeks

to

come

into

Canada,

the

burden

of

proving

that

that

person

has a

right

to

come

into

Canada

or

that

his

admis-

sion

would

not be

contrary

to

this

Act or the

regulations

rests

on

that

person.

(2)

Every

person

seeking

to

come

into

Canada

shall

be

presumed

to be

an

immigrant

until

that

person

satisfies

the

immigration

officer

examining

him or the

adjudicator

presiding

at his

inquiry

that

he

is not an

immigrant.

3 IA,

ibid.,

s.

55(3).

The Act

also

provides

that

a

certificate

of

departure

must

be

issued

verifying

that

the

subject

of a

departure

order

has

left

the

country.

If no

such

certificate

has

been

issued within

the

requisite

time,

a

departure

order

may be

deemed

to be a

deportation

order.

See IA,

ibid.,

ss.

32.01

&

32.02.

4 See

chapter

15.

5 For

details,

see IA,

above

note

1, s. 28 and s.

32.1(6).

6 IA,

ibid.,

s.

33(2).

7 The

designation

has

been

made

by

Instrument

1-13.

See

Immigration

Manual,

1L-3

[1L].

8 For a

general

outline,

and a

discussion

of

exceptional

cases,

see

Immigration

Manual,

PE-1,

"Primary

and

Secondary

Examinations"

[PE].

The IA,

above

note

1,

s.

12(3),

allows

for one

immigration

officer

to

refer

a

person

to

another

officer

for

completion

of the

examination,

but

does

not

specify

criteria

for

doing

so.