Introduction
In an earlier blog post on Electronic Travel Authorizations (eTAs), I wrote about my “theory” that Negative Discretion declarations under section 22.1 of Immigration and Refugee Protection Act (IRPA) would increase.
To recap, IRPA allows the Minister’s on his own initiative to declare that that a foreign national may not become a temporary resident for a period of up to three years if justified by public policy considerations.
I mentioned that this provisions is quite young and so far there have been no Federal Court case law on the topic that I can point to interpreting what those public policy considerations are.
It turns out that there are more, recent instructions that Citizenship and Immigration Canada (“CIC”) have put out on this particular IPRA provision.
Analysis of the New CIC Guidelines
In an online update last modified 17 July 2015, CIC has issued Guidelines for the Negative Discretion Authority that lay out what specifically is being targeted by this provision.
They are accessible here.
I have added emphasis below.
Promoting Terrorism, Violence, or Criminal Activity:
- A foreign national who makes public statements or uses any means to broadcast, write, produce, publish or distribute material, including a website and public speaking, to express views which:
- promote or glorify terrorist violence;
- promote or glorify a listed entity under Regulations Establishing a List of Entities pursuant to the Criminal Code of Canada, Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism or the United Nations Al-Qaida and Taliban Regulations;
- counsel, encourage or incite others to commit terrorist activity or terrorist violence;
- incite hatred that is likely to lead to violence against a specific group;
- promote, counsel, encourage or incite serious criminal activity.
This section is very #C51-esque with some language that mirrors very closely the Criminal Code amendments under that Bill.
What is interesting is that the wording of this possible group that Negative Discretion can be issued against is very broad. I can easily see bloggers and scholars, who express more extreme political views, to be potentially caught under this provision. The already common-practice of “googling” or “researching” individual applicants (both through the Temporary Resident Visa and eTA process) will likely increase from Canada Border Service Agency’s (CBSA’s) side.
The “promotion and glorification” wording also seems highly problematic, especially in combination with no apparent standard of proof required for this negative discretion to be issued. Does sharing an ISIS video on a private blog count as promotion and glorification? Does writing a pro-Russian, anti-Ukrainian independence piece meet the requirement? Who is to be the judge of the ‘academic’ elements in the piece in the case it is scholarly work or the work of a journalist?
It is very possible under this provision, we could be preventing a journalist like a foreign national equivalent of Mohamed Fahmy from coming to Canada.
On a different note, I query whether this provision could also be used to keep individuals such as Daryush Valizadeh, a.k.a. Roosh V out of Canada. Arguably, point 4 is triggered by a pick up artist who encourages the rape of women.
Foreign Nationals from Sanctioned Countries or Corrupt Foreign Officials:
-
A foreign national of a country against which Canada has imposed sanctions under the United Nations Act or the Special Economic Measures Act, where that foreign national is:
- a former or current senior official of the government of that country, or of any entity owned or controlled by, or acting on behalf of the government; or
- an associate or a relative of an official or person set out in paragraph (a).
-
A foreign national who is a politically exposed foreign person listed in regulations to the Freezing Assets of Corrupt Foreign Officials Act.
This section is in my analysis equally broad.
The countries that are covered under the first subsection (UN Act or Special Economic Measures Act) include the following:
Canada has imposed sanctions and/or related measures against the following countries:
You will note that these are among the countries that already have significantly lower TRV success rates.
Also, you will note in particular the Guidelines cover off associates and relatives in addition to the current or former official. It is interesting to note that relatives is not defined. Being a second cousin twice removed may be enough to catch you under the breadth of this section.
I think that the second bullet point of the Foreign Nationals from Sanctioned Countries or Corrupt Foreign Officials provision also will attract attention to individuals from country such as China.
This provision refers to the Freezing Assets of Corrupt Foreign Officials Act (FACFO Act), which itself is extremely far-reaching in its application. Section 2 of the FACFOA Act defines politically exposed foreign person as (emphasis added):
“politically exposed foreign person”
« étranger politiquement vulnérable »
“politically exposed foreign person” means a person who holds or has held one of the following offices or positions in or on behalf of a foreign state and includes any person who, for personal or business reasons, is or was closely associated with such a person, including a family member:
(a) head of state or head of government;
(b) member of the executive council of government or member of a legislature;
(c) deputy minister or equivalent rank;
(d) ambassador or attaché or counsellor of an ambassador;
(e) military officer with a rank of general or above;
(f) president of a state-owned company or a state-owned bank;
(g) head of a government agency;
(h) judge;
(i) leader or president of a political party represented in a legislature; or
(j) holder of any prescribed office or position.
In the case of China, you will possibly Negative Discretion declarations made under Subsection (f), particularly as we are seeing with the rise of fraud cases arising from the leadership changes and rule of law reforms in China. Parent of astronaut families should be careful moving forward with their business and political dealings (even those holding 10-year multiple entry visas).
Mitigating Risks to Public Health:
A foreign national who may introduce, contribute, or pose a risk to public health in Canada. This could include a foreign national who has been in a country with an unusual or unexpected and serious communicable disease with the potential for international spread and significant impact on the health of the Canadian population.
This provision is very interesting. Previously these types of situations were subject to Operational Bulletins, but it looks like the authority to prevent an individual from a country with major health/disease concerns is also widened by these instructions.
Where I See This All Going
Without being overly predictive of the results of the next election, should the Conservatives regain power and in line with the other reforms that are occuring, the use of the Citizenship and Immigration Minister’s ‘Authority for Negative Discretion’ will increase drastically.
This provision, against affects both Temporary Resident Visa applicants and eTA applicants. In fact, even holding a TRV or eTA may not exempt an individual from Entry requirements. I am aware that the CBSA is in the process of training Aircraft Carrier companies to provide information which will allow CBSA to trigger a last minute review of a possible Authority for Negative Discretion.
Information sharing is at the heart of this Government and this current Immigration Regime’s direction. It is too early to see how a provision like this would withstand some of our Charter rights, particularly Section 2 which applies to everyone (including temporary residents in Canada).
Which brings up a hypothetical question to conclude on: If I were a Muslim scholar studying religious independence with a family in Canada and no permanent resident status, would I think twice about writing a blog or giving a speech about my area of research?
I would.
I don’t think I should. But I would.
I think this, as a policy, is ultimately too broad to enforce. There is too much of a gap between the wording of an s.22.1(1) Negative Discretion Authority declaration and the proposed policy implementation.
Ultimately, I believe the laws will have to be re-written by the government to provide for more specifications as to when the provision can be applied, particularly as its effect is essentially the same of many exclusion orders and inadmissibility findings under IRPA.
