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Home > Library > Inadmissibility |
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Inadmissibility
The
protection of the health, safety and good order of Canadian society is
an important goal of the Immigration Act and Immigration
Regulations. Section 19 of the Immigration Act specifically
lists various classes of persons who are inadmissible. The categories of
inadmissible classes can be divided into several distinct groups, each
of which are discussed below:
Criminal
Inadmissibility
The
purpose of the criminally inadmissible class is to refuse admission to
persons who convicted of offences in Canada or in another country. The
seriousness of the offence, the length of time since its commission and
whether or not the person has been "rehabilitated" are all
factors which are considered before allowing the person to come into
Canada. Sections 19(1)(c), 19(2)(a) and 19(2)(b) should be read
carefully to determine admissibility. Generally speaking, no matter how
serious the offence was, if five years has elapsed since the termination
of the jail sentence, and the person is rehabilitated, admission to
Canada is possible. The three groups of a criminal inadmissibility are
as follows: Criminal
convictions in Canada. This
group affects people convicted in Canada of offences punished by a
maximum of ten years or more imprisonment; less
than ten years imprisonment; summary
convictions. Applicants
fall into this group if they have convictions for two or more offences
that happened separately. Criminal
convictions abroad. This group
concerns persons who were convicted of an offence(s) outside Canada. The
offences would have equivalents in Canada punishable by: a
maximum of 10 years or more imprisonment; less
than ten years imprisonment; or summary
convictions. Acts
or omissions committed abroad. This group applies to applicants who
committed an act of omission outside Canada. The act or omission must be
an offence where it occurred. It must also have a Canadian equivalent,
punishable by: a
maximum of 10 years or more imprisonment; or
less than ten years imprisonment. Conviction.
A conviction is a finding by a court or other authority, not set
aside upon appeal, that a person is guilty of an offence. However, a
finding of guilt is not always a conviction. In cases where an accused
pleads guilty or is found guilty, the court can direct that they be
discharged. When a court makes such a direction the offender shall be
deemed not to have been convicted of the offence.
An
arrest record does not establish a conviction. If a court delivers a
suspended sentence, a conviction exist. A person appealing a conviction,
remains convicted until the conviction is overturned.
Medical
Inadmissibility
Every
applicant and his/her dependents, whether accompanying or not, must
undergo and pass a medical examination by Designated Medical
Practitioner of their choice. The physician records the individual's
medical background and the results of the examination. This information
is then forwarded to the relevant visa post to a medical officer. Medical
forms are usually provided to the applicants after their application has
been assessed and their interview has been either scheduled or waived.
Medical results are valid for 12 months for the date of the medical
report submitted. Sometimes, medical officers require additional
documentation to determine the medical admissibility of an applicant and
may request that the applicant undergo additional testing.
According
to Section 19(1)(a) of the Immigration Act, persons are
inadmissible if they are suffering from a disease, disorder, disability
or other health impairment and, in the opinion of a medical officer
concurred in by at least one other medical officer:
they
are likely to be a danger to public health or to safety; they
will or might cause excessive demands on Canadian health
care and social services system. For
a person to be inadmissible under this provision, he or she must be
currently suffering from a disease, disorder, disability or other health
impairment. The existence of a past medical
condition does not result in inadmissibility.
In
most cases, in order to pose a danger to public health and safety the
person must have a medical condition or disease which is or could be
contagious. It this is not the case, there will usually be no danger to
the public health or safety. However, even persons with contagious
diseases are not necessarily inadmissible. The severity of the medical
condition and the ease in which is transmitted to others must be
considered.
Section
22(d) of the Immigration Regulations also contemplates a
situation where sudden incapacity or unpredictable behavior may pose a
danger to public health or safety. This appears to contemplate certain
psychiatric conditions where a person might lose control over his or her
actions. However, the mere fact that a person might lose control of his
or her actions under certain circumstances does not appear to be
sufficient grounds for a finding of inadmissibility.
When
considering the question of whether expected demands on health or social
services will be excessive, the factors set out in Section 22 of the
Immigration Regulations are considered. These include: whether
the supply of medical or social services that the person
might require are limited; the
impact of the person's admission on a Canadian resident's
access to such services; whether
hospitalization is or might be required; the
availability of treatment; and the
impact of the condition on employability.
The
cost of treatment is not mentioned in the Immigration Regulations
but it is frequently considered in decisions of the Immigration Appeal
Board. The mere fact that the applicant may require hospitalization or
surgery for treatment is not determinative. The amount, length, and cost
of treatment and prognosis are considered. It must be probable
that the person's medical condition will place excessive demands on
health and social services. Just a possibility that this will occur is
insufficient.
The
medical officers opinion forms the basis of the visa officer's refusal
on medical grounds. However, the ultimate decision in approving or
refusing an application for permanent residency is the responsibility of
the visa officer. Other
Inadmissibility Public
Charge Grounds. Section
19(1)(b) of the Immigration Act describes people who are, or will
be, unable or unwilling to support themselves and persons depending on
them for care. Persons
Involved in Espionage, Terrorism and Unacceptable Political Activities.
Section 19(1)(e), (f), (g), and (k) describe people who may not be
admitted to Canada for security reasons. They are individuals who will
or have engaged in acts of espionage, subversion, terrorism, or
violence. They may also are or were members of organizations that
engage, have engaged or will engage in any of these acts. Persons
Involved with Terrorist Governments.
Section 19(1) describes senior members or officials of governments
designed by the Minister. Governments that engage in terrorism,
systematic or gross human rights violations, war crimes or crimes
against humanity. To date the Minister has designated: the
Marxist Government of Afghanistan (1978 to 1992); the
Bosnian Serb Government (march 27, 1992 to October 19,
1996); the
Government of Siad Barre in Somalia (1969 to 1991); three
Haitian Governments (January 1971 to February 1986, (October
1991 to August 1993), (December 16, 1993 to October 15,
1994); and the
Government of Iraq (1968 to the present). |
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