Fact Sheet

Immigration investigations and admissibility hearings

Snapshot

To enforce the Immigration and Refugee Protection Act, the Canada Border Services Agency (CBSA) investigates possible breaches/inadmissibilities related to the Act. If there is sufficient evidence of a breach of the Act, an officers will determine whether, in all the circumstances of the case, a report is warranted. If the officer determines a report is warranted, the person concerned may be referred to an admissibility hearing. An admissibility hearing is a court-like hearing held at the Immigration and Refugee Board of Canada (IRB).

It is held before a member of the Immigration Division (ID) of the Immigration and Refugee Board (IRB). The Immigration Division conducts admissiblity hearings for certain categories of people believed to be inadmissible to, or removable from, Canada under the law. It also conducts detention reviews for persons detained under the Act. If the ID member finds a report well-founded, a removal order will be issued.

In some cases, removal orders may be appealed to the Immigration Appeal Division (IAD) of the IRB and in all cases, the person concerned may seek leave with the Federal Court of Canada to review the ID or IAD’s decision.

Who is responsible?

Local and regional CBSA staff, including Inland Enforcement officers, Hearings officers and delegates of the Minister (usually local CBSA managers, supervisors and/or officers), are involved in the investigation and admissibility hearing process.

Immigration investigations

CBSA employs Inland Enforcement officers across Canada to investigate people who may be inadmissible under the Act. They work closely with the RCMP, local police and other agencies and, when necessary, can arrest, detain and remove people who are inadmissible under the Act.

Investigations can begin with police reports, tips from the public, or the person's own admission. If there is sufficient evidence of an inadmissibility, the officer may submit a report to the Minister's delegate (MD) instead of referring to the Immigration Division. These are less complicated inadmissibilities such as overstays or previous deports. In this case, the MD would issue the appropriate removal order if the report was well-founded. These are called Minister’s proceedings. The Regulations stipulate whether the ID or the MD has the authority to issue a removal order for the various inadmissibilities.

Admissibility hearings

When a more complicated breach is alleged, the Minister's delegate reviews the investigation report and refers the matter to the Immigration Division for an admissibility hearing.

Admissibility hearings are similar to court hearings and are generally open to the public. However, they are held in camera if they concern refugee protection claimants or if the Division determines that there is:

• a danger to a person's life (for example, a person may be testifying in a case involving organized crime);
• a serious possibility that the fairness of the admissibility hearing would be jeopardized (for example, a woman may be reluctant to testify against her husband if the admissibility hearing is held in public); or
• a risk that information involving public security might be disclosed (for example, the admissibility hearing concerns a person who is inadmissible on security grounds).

Like a judge, a member of the Immigration Division presides over the admissibility hearing and listens to evidence presented by the hearings officer (who represents the Minister), the person in question and his or her counsel, if there is one. Unlike a court hearing, however, there is no jury and there are fewer restrictions on evidence. At the end of the admissibility hearing, the member decides if the person is admissible. If the person is admissible, he or she is allowed to enter or remain in Canada.

If the person is inadmissible to Canada, a removal order is issued that requires the person to leave the country. The member can also decide if the person should be placed under detention or if conditions should be imposed upon release.

Appeals of removal orders

Some foreign nationals with permanent resident visas, some permanent residents and some protected persons who have had removal orders issued against them at an examination or admissibility hearing can appeal to the IRB's Immigration Appeal Division. Those who cannot appeal removal orders are foreign nationals, permanent residents and protected persons who are found inadmissible because they:

• are security threats;
• have violated human or international rights;
• received a sentence of at least two years for criminal activity;
• are or have been involved in organized crime; or
• have made a misrepresentation, except in cases where the person is the sponsor's spouse, common-law partner or child.

An appeal can be launched by the person who was ordered removed or by CBSA on behalf of the Minister of Public Safety and Emergency Preparedness. The IAD can stay removal orders but is required to impose mandatory conditions of the stay.