The Federal Courts and Immigration and Refugee Law

AuthorMartine Valois & Henri Barbeau
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The Federal Courts and
Immigration and Refugee Law
Martine Valois & Henri Barbeau*
  ,   been built and enriched
by immigrants who came here in search of a better life. Immigration was
f‌irst used to extend the border further and further west. is could only be
achieved by facilitating a massive inf‌lux of immigrants who could quickly
settle the lands, which were occupied by Indigenous peoples. At the end of
the nineteenth century, industrialization led to an ever-increasing demand in
labour, and immigrants needed to be able to secure paid employment because
supporting themselves by farming was not an option in urban centres. After
the Second World War, the large numbers of refugees and displaced persons
in Europe led Canada to participate in the global eort to provide asylum.
Canada’s laws have ref‌lected the evolution of its immigration policy.
Early statutes placed few restrictions on the arrival of immigrants, so as to
facilitate the settlement of Canada’s vast territory. With industrialization,
increasingly stringent conditions were imposed, and only newcomers who
were able to work and support themselves were allowed to enter. en, in
response to growing civil strife and political unrest across the globe, Canada
ratif‌ied the  United Nations Convention Relating to the Status of Refugees1 and
* The authors thank Éliot Barberger and Sophie La Roche for their excellent research
work and Sabrina Kosseim for the f‌inal review of the manuscript.
137, Can TS No 6 (entered into force 22 April 1954, accession by Canada 4 June 1969)
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        
established a process for the determination of the refugee status. Finally, a
specialized workforce made up of qualif‌ied workers was required to sustain
an advanced economy and drive innovation. is development promoted the
adoption of a system for selecting immigrants abroad based on their ability
to successfully establish themselves economically in Canada. e history of
Canadian immigration also has a dark side. e Indigenous population was
displaced to make way for European immigrants, widespread systemic dis-
crimination against certain categories of immigrants considered undesi rable
was standard policy, and immigrants were required to obtain visas abroad to
prevent the inf‌lux of asylum seekers.
e development of Canadian immigration law is inextricably linked to
the history of the Federal Courts. e creation of the Federal Court in 
and the transfer of the power to supervise and control federal administrative
bodies to the Federal Courts represented the starting p oint for the develop-
ment of a large body of Canadian caselaw in immigration and refugee law. A
signif‌icant part of the work of Federal Court judges involves decisions in this
area, which have had a profound inf‌luence on the development of Canadian
administrative law. Moreover, the Supreme Court of Canada has rendered
several landmark decisions on fundamental principles of administrative law
and standards of judicial review in the context of immigration law, on appeal
from Federal Court of Appeal judgments.2
In this chapter, we will examine the Federal Courts’ original contribution
to the development of immigration law in Canada. For the sake of brevity, our
study will primarily focus on the caselaw regarding refugee law and applica-
tion of the Canadian Charter of Rights and Freedoms3 to non-citizens. Nevertheless,
it goes without saying that the Federal Courts have had a signif‌icant inf‌luence
[Convention]. Canada also signed the Convention protocol, Protocol Relating to the
Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
2 Sharryn J Aiken et al, Immigration and Refugee Law, Cases, Materials, and Commen-
tary, 2d ed, Toronto, Emond Montgomery Publications, 2015 at 124; see, for instance,
Prassad v Canada (Minister of Employment and Immigration), [1989] 1 SCR 560;
Pushpanathan v Canada (Minister of Employment and Immigration), [1998] 1 SCR 982
[Pushpanathan]; Baker v Canada (Minister of Employment and Immigration), [1999] 2
SCR 817 [Baker]; Suresh v Canada (Minister of Employment and Immigration), [2002]
1 SCR 3; Chieu v Canada (Minister of Employment and Immigration), [2002] 1 SCR 84;
Mugesera v Canada (Minister of Employment and Immigration), [2005] 2 SCR 100;
Canada (Attorney General) v Mavi, [2011] 2 SCR 504; Agraira v Canada (Public Safety
and Emergency Preparedness), [2013] 2 SCR 559.
3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B of the Canada Act 1982 (UK), 1982, c 11.
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The Federal Courts and Immigration and Refugee Law
in many other areas of immigration law and that the judges of the Federal
Courts have, through several landmark judgments and decisions, addressed
crucial questions raised by the enforcement of immigration laws through time.
is text is divided into three parts. In the f‌irst, we will follow the evo-
lution of Canadian immigration law since Confederation, with particular
emphasis on the integration of the refugee status determination process and
on how this integration aected the judicial review of decisions before the
Federal Courts. In the second part, we will examine the development of pion-
eering caselaw by the Federal Courts concerning the def‌inition of “refugee
contained in the Convention. We will see that the inf‌luence of this caselaw
has spread beyond Canada’s borders and that it has had persuasive force in
foreign jurisdictions grappling with the interpretation of the somewhat vague
and indeterminate Convention def‌inition. Finally, in the third part we will
analyze the impact that the adoption of the Charter had on i mmigration law
and the Federal Courts’ decisive role in recognizing the protections that the
Charter grants to non-citizens.
Immigration Laws
Tightening of the Requirements for Admission to Canada
e f‌irst immigration law enacted after Confederation4 was the  Act
respecting Immigration and Immigrants.5 Its provisions focused on the duties of
the masters of vessels transporting immigrants, the duties of quarantine
ocers, and passenger safety measures, the fare to enter the country being
set at one dollar per passenger over one year of age.6 is open-door immi-
gration policy was maintained until the beginning of the th century, with
one major exception: Chinese immigration. Following the recommendations
of a commission of inquiry,7 An Act to restrict and regulate Chinese immigration
into Canada8 was adopted to discourage Chinese immigrants from coming
4 Pursuant to section 91(25) of the Constitution Act, 1867, 30 & 31 Vict, c 3, the federal
Parliament has jurisdiction over “Naturalization and Aliens.
5 Act respecting Immigration and Immigrants, SC 1869, c 10.
6 Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy,
1540–2006, rev ed (Toronto: Dundurn Press, 2007) at 71.
7 Canada, Royal Commission on Chinese Immigration, Report of the Royal Commission
on Chinese Immigration: Report and Evidence (Ottawa: By Order of the Royal Commis-
sion, 1885).
8 An Act to restrict and regulate Chinese immigration into Canada, SC 1885, c 71.

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