CIMM Committee Report

    Section 25 of the Immigration and Refugee Protection Act is an important tool for alleviating hardship. It permits the Minister to grant permanent resident status to a person who is inadmissible, or who does not meet the requirements of the Act, if it is justified by humanitarian and compassionate considerations. The regulations expand on this power.

    A number of witnesses found the proposed regulations on humanitarian and compassionate considerations confusing. They referred to an apparent contradiction with the Act, and a lack of clarity regarding the purpose of each of the clauses. Rather than being an aid to understanding, the marginal notes add to the confusion. Some witnesses were led to believe that, although the Act permits inadmissibility to be overcome in deserving cases, the regulations require that a person not be inadmissible.

    In fact, a close reading of the proposed regulations reveals that it is only when the Minister is considering granting permanent resident status to a person who is not a member of an immigration class, and therefore does not meet the requirements of the Act, that the person will have to demonstrate that they are not inadmissible for medical, security or other reasons. Although the Committee accepts that the provisions may be legally acceptable, we feel nevertheless that they should be redrafted to make them clearer. Provisions that cause so much confusion should not be allowed to go forward without revision.

RECOMMENDATION 65

Clauses 108, 110 and 112 dealing with humanitarian and compassionate considerations should be redrafted to clarify their intent.

    Another group urged that certain criteria relevant to humanitarian and compassionate treatment should be included in the regulations. They suggested protection in violent situations, the protection or rehabilitation of the victims of trafficking, and achieving family reunification as factors that would merit humanitarian and compassionate consideration.

    Given their importance, the Committee agrees that it is reasonable to include the above factors in the regulations. We stress that any such list would be illustrative only and would not in any way preclude an officer from considering other factors, or for other factors to be included in guidelines.

    Section 30(2) of the Act provides that any minor child in Canada may study at the pre-school, primary or secondary level, unless they are the child of a temporary resident not authorized to work or study. We interpret the emphasized words as referring to legitimate visitors or tourists. In its Regulatory Impact Analysis Statement, the Department explains that the purpose of the provision is to facilitate access to education in Canada by all minor children by reducing administrative procedures.

    The Committee recognizes that there could be a problem with the implementation of this section if some parents without immigration status in Canada fear being discovered when their children first enrol in school. To avoid children being kept from school for that reason, CIC should inform school authorities of the limited purpose of the provision in the Act, which is to provide education for all minor children with the exception of the children of legitimate tourists and visitors.

    For the most part, the entrepreneur and investor categories remain unchanged in the proposed regulations. However, a standard of what constitutes "business experience" would be established. An applicant must have either owned and managed a "qualifying business" within two of the last five years, or managed at least 50 employees in a business within two of the last five years. Clause 76 provides a technical definition of what would constitute a "qualifying business" based upon factors such as annual sales, net income, or net assets. As well, a net worth of $300,000 would now be required for entrepreneurs.

    Witnesses appearing before the Committee suggested that the new standards for these programs are set too high and will result in desirable business class applicants choosing countries other than Canada. Currently, prospective entrepreneurs are required to show that they intend and have the ability to establish or purchase a business in Canada for which they will provide active management. Evidence of an ability to manage is required, but there are no hard and fast rules as to the size of the company the entrepreneur previously managed or the number of employees previously supervised. There is currently no net worth requirement for entrepreneurs. Investors, similarly, must currently demonstrate that they have business experience, but no minimum requirements exist in the regulations.

    The Department’s impact analysis indicates that the changes were made to ensure a consistent application of what has become an inherently subjective determination of experience. Reference is made to "excessive challenges" to selection decisions in the Federal Court and it is suggested that the proposed regulations will result in greater transparency. The Committee, however, believes that the new requirements could have a detrimental effect on the international competitiveness of the programs.

RECOMMENDATION 69

The entrepreneur and investor programs should remain unchanged and each application should be judged on its own merits without reference to a set standard.

D. THE SELF-EMPLOYED

    The proposed regulations would slightly expand the self-employed category to include not only those who would contribute to Canada’s cultural and artistic life, but also those who would make a significant contribution to athletics at the world-class level and those who would purchase and manage a farm in Canada. However, the Committee believes that this class is still too restrictive. Others who are capable of creating employment for themselves should be considered for inclusion.

    The detention of children is always of concern. Section 60 of the Act affirms as a principle that detention of a minor child should occur only as a last resort, and must take into account the best interests of the child. Clause 256 of the regulations specifically addresses the special considerations that apply to the detention of children under 18 years of age. These considerations are: the availability of arrangements with local agencies; the anticipated length of detention; the possibility of continued control by smugglers; and the type of detention facility where they would be held.

    The Committee heard the view that the regulations do not appear to incorporate the "last resort" principle. Witnesses suggested that the impression is given that if the detention facilities are adequate, minors can be detained. They were also opposed to detention on the ground of identity alone, and to the suggestion that if children were brought by smugglers, that is a good reason to detain them. It was proposed that "safe houses" should be used instead.

    The Committee is concerned that the regulations unintentionally give the impression that detaining minors is justified provided any of the general factors listed for adults, and the special factors for children in clause 256, have been considered or are applicable. This is unfortunate, as it undermines the principle of last resort in the Act. We see no reason why the principle cannot be restated in clause 256 as a constant reminder to officers.

    The Citizenship Act provides that a person may lose their citizenship if it was obtained by fraud, false representation or knowingly concealing material circumstances. (The process by which the facts are determined occurs in Federal Court.) The Immigration and Refugee Protection Act provides that if loss of citizenship occurs for that reason, the person does not regain their status of permanent resident (section (46(2)). They therefore become foreign nationals.

    The new Act provides that the regulations may specify the circumstances under which the Minister may make a deportation order for foreign nationals without referring the matter to the Immigration Division for an admissibility hearing (section 44(2)).

    One of those circumstances, prescribed in proposed clause 234, is if the foreign national is inadmissible on the grounds of misrepresentation in connection with a refugee claim under section 40(1)(c) of the Act. That is the only ground of misrepresentation in the proposed regulations.

    Section 40(1)(d) of the Act states that individuals are inadmissible for misrepresentation if they cease to be a citizen on the basis that their citizenship was obtained by fraud, false representation or knowingly concealing material circumstances. One of the Committee’s witnesses proposed that that section should be added to clause 234 of the proposed regulations.

    Adding a reference to section 40(1)(d) of the Act to clause 234 of the proposed regulations would mean that an inadmissibility report resulting from the loss of citizenship that had been fraudulently obtained, a purely factual matter, would not need to be referred to the Immigration Division for a hearing, and a deportation order could be issued immediately. This would save time, by eliminating an unnecessary step. The person concerned would still be able to make an application for leave to apply for judicial review of the order in Federal Court. The Committee agrees that this is a reasonable suggestion.

    The Committee is aware that these regulations were readied for publication on an urgent basis following the events of September 11, 2001 and, as a result, they are not as clearly written as we would have hoped. Many members of the Committee, as well as witnesses who appeared before us, indicated that the proposed regulations could be written in simpler language and would be more easily understood if formatted and referenced differently. In addition, several of our witnesses mentioned that the French and English do not always correspond, and that in some cases the French version could only be understood by referring to the English version.