Authorization to return denied; a permanent banishment from Canada

There are some issues in immigration law that quietly exist, away from great fanfare or concern. Because they are quirks in the law, they are largely unknown, ignored or taken for granted. Usually, these issues aren’t sexy or significant. But because they exist, they cannot just be ignored because, at some point, they come to life, and with serious consequences.

With the release of its latest decision, the Federal Court has elevated one such issue into the light of public discourse and concern. And if the Federal Court is right, we in the immigration bar and our clients have a new worry. The issue revolves around what is known as an Authorization to Return to Canada and whether the Immigration Appeal Division can take jurisdiction on an ARC refusal in a family class appeal. Until the Federal Court decided to the contrary in its recent decision in Momi v. MCI (2018) FC 110, the answer was clear and unequivocal: It definitely could and often did. Given that in the Momi decision the court said it could not consider an ARC appeal on its merits, this answer has become muddled.

This is big, believe me. Without an Authorization to Return, a person who was previously deported from Canada is permanently barred from returning. Permanently! That remains so even if the reason for the original deportation no longer applies, such as a criminal conviction. So, if you were deported because you had a criminal conviction but then were pardoned and had that conviction wiped off your record, you still could not come back to Canada without being authorized — which might never happen.

Here is how the ARC works. The starting point: A person who has been in Canada and is the subject of a deportation order cannot return to Canada without approval. That approval is mandated by s. 52(1) of the Immigration and Refugee Protection Act and is administered by overseas visa officers. Guidelines were promulgated under Article 6 of Overseas Processing Manual 1 to assist visa officers in their deliberations. According to this manual, individuals applying for an ARC must demonstrate that there are compelling reasons to consider an Authorization to Return to Canada when weighed against the circumstances that necessitated the issuance of a removal order. Applicants must also demonstrate that they pose a minimal risk to Canadians and to Canadian society. Officers are further instructed that bona fide marriages are normally grounds to approve an ARC.

In the distant past, ARCs were rarely if ever refused; and, in the unlikely event of a refusal on a sponsorship case, Minister’s counsel often consented to allow an appeal filed at the IAD. In addition, for applicants who had been deported from Canada and then sponsored back, in cases in which a visa officer had refused the sponsorship on grounds of bona fides but had not considered the ARC, the IAD would even amend the grounds of refusal to include an ARC refusal in order to ensure that everything would be considered de novo. This ensured that if the appellant was successful on appeal, a new ground of refusal on an ARC application would not delay the unification of the family in Canada.[1]

The decision of the Federal Court in Momi potentially brings into question the jurisdiction of the IAD to consider an ARC refusal on its merits. In Momi, the sponsor attempted to sponsor his mother and father into Canada as permanent residents. Momi’s father had been the subject of a removal order and so required an ARC, which was denied. The refusal of the ARC led to the refusal of the sponsorship as, without an ARC, his father was inadmissible to Canada. Momi appealed this refusal to the IAD, which accepted jurisdiction to consider whether the ARC was legally required and that the process was fair. The IAD did not, however, assume jurisdiction to consider the ARC refusal decision on its merits. Barnes of the Federal Court agreed with the IAD, stating that “it seems quite apparent to me that no appeal lies to the IAD from a decision to refuse an ARC: see subsection 63(1).” In rendering his decision, Barnes appears to have been influenced by the apparent incongruity of an appeal launched by a sponsor at which an issue affecting a non-appellant — in this case, his father — would be determined. He could not find any such authority in IRPA for the IAD’s jurisdiction to reach that far.

The problem with this reasoning, with great respect, lies in the overall jurisdiction of the IAD to consider all of the issues affecting a sponsorship and render a de novo decision on any of them. The Federal Court of Appeal recognized this power in 1989 in its decision in Kahlon v. MEI [1989] FCJ no. 104, when, citing from Justice Thurlow in an earlier decision, it held that the issue was not whether the decision made by a visa officer that an applicant was in a prohibited class (inadmissible) was correct but whether the person was in fact one of the prohibited class.

The ARC refusal renders an applicant inadmissible to Canada. The IAD exercising its de novo powers over all aspects of a sponsorship is empowered to decide whether or not the applicant is inadmissible to Canada, which would include an assessment of the merits of an ARC. I believe, and hope, that Momi is wrongly decided and that given that a question was certified, the Court of Appeal will correct it.