Admissibility hearings are held by the Immigration Division (ID) of the Immigration and Refugee Board (IRB). An admissibility hearing can be held to decide if you are allowed to stay in Canada, if you are a permanent resident or foreign national. It is strongly encouraged to retain an immigration lawyer to represent you at the admissibility hearing because if you lose your hearing you might be deported from Canada.
Admissibility hearings are similar to court hearings and are generally open to the public. However, they are held in private if they concern refugee protection claimants or if the Division determines that there is:
- 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).
A member of the Immigration Division of the Immigration and Refugee Board presides over admissibility hearings and detention reviews. Immigration Division members are appointed under the Public Service Employment Act. The member of the Immigration Division is an impartial decision-maker who must consider the evidence presented at a hearing by the Minister’s counsel and by the person concerned before making a decision.
Like a judge, a member of the Immigration Division presides over the admissibility hearing and listens to evidence presented by an officer representing the Minister, the person in question and his or her representative, if there is one. Unlike a court hearing, however, there is no jury and there are fewer restrictions on evidence.
The courts have determined that immigration proceedings are civil, not criminal, in that the purpose of the admissibility hearing is not to determine whether the person concerned is guilty or innocent, but rather to determine the person’s status in Canada. This leads to two different implications, on the burden of proof and on the testimony of the person concerned.
Standard of proof
Since immigration proceedings are civil in nature, the general standard of proof is the one applicable to civil matters, rather than the criminal standard of proof. Consequently, the PSEP Minister does not have to prove the existence of facts beyond a reasonable doubt, but rather has to demonstrate that the PSEP Minister’s version of the facts is more probable than the version of the person concerned (that is, using a standard on a balance of probabilities). The Act provides for some exceptions to this principle, where in certain cases, the evidence must be evaluated according to a lesser standard of proof, on the basis of reasonable grounds for believing that the facts in question have occurred, are occurring or may occur.
Person concerned compellable
Furthermore, the testimony of the person concerned is often the principal source of evidence available to the PSEP Minister in admissibility hearings, and even detention reviews. The courts have indeed determined that the person concerned is compellable because at the admissibility hearing, the person concerned is not the subject of a charge and consequently cannot be an “accused” within the meaning of Section 11 of the Charter.
Consequently, the person concerned cannot refuse to answer questions on grounds of self-incrimination, although the person concerned may seek the protection of the Canada Evidence Act to prevent the use of his or her own testimony in criminal proceedings.
A person at an admissibility hearing who refuses to take an oath, make a solemn declaration or affirmation, or answer a question, commits an offence and may be prosecuted.
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. The member may set conditions.
If the person is inadmissible to Canada, a removal order that requires the person to leave the country is issued. The member can also decide if the person should be placed under detention or if conditions should be imposed upon release.
If you are found inadmissible and get a removal order, you may be able to appeal in some cases to the Immigration Appeal Division (IAD). You only have 30 days to start an appeal after you get a removal order. Please consult an immigration lawyer as every case is unique and should be assessed by a lawyer.
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