Admissibility hearings at the Immigration Division

An admissibility hearing is the proceeding in which the Immigration Division of the Immigration and Refugee Board decides whether a person is inadmissible to Canada. It is a hearing, not a paper review: the Minister is represented, evidence is filed on both sides, and the Division issues a decision with reasons. Karb Law appears at those hearings.

Angelina Shuster is a paralegal licensed by the Law Society of Ontario, and representation before Immigration and Refugee Board tribunals — including the Immigration Division — falls within a licensed paralegal's scope of practice. This page is general information about procedure and is not legal advice; reading it creates no paralegal-client relationship.

What an admissibility hearing decides

The Division answers one question: whether the allegation of inadmissibility set out against the person is made out on the evidence. If it is not, the matter ends and no removal order is issued. If it is, the Division must issue the removal order that the legislation attaches to that ground — the Division does not choose between removal and some softer alternative.

That is the part most people are surprised by. There is no general discretion at this stage to weigh how long someone has lived in Canada, or who depends on them. Those considerations belong to other proceedings — an appeal, where a right of appeal exists, or an application decided elsewhere. The admissibility hearing itself is narrow, and the narrowness cuts both ways: a case that turns on the wording of an allegation and the quality of the Minister's evidence can be answered on exactly those terms.

How a matter reaches the Immigration Division

The route is fixed by statute and worth understanding, because two of its stages happen before any hearing is scheduled.

• An officer who believes a person is inadmissible prepares a report under section 44(1) of the immigration legislation, setting out the ground and the facts relied on.
• A Minister's delegate reviews that report. The delegate may decide the report is not well founded, may issue a removal order directly in the categories where that power exists, or may refer the matter to the Immigration Division.
• Where the matter is referred, the Division schedules an admissibility hearing and both the person concerned and the Minister are notified of the allegation to be heard.

The referral document matters more than its plain appearance suggests. It names the ground and the subsection, and the hearing is confined to what it alleges. Reading it closely — and obtaining the officer's notes and the disclosure behind it — is usually the first substantive step in the work.

The grounds most often in issue

Inadmissibility is not one thing. The legislation sets out separate grounds, each with its own definition and its own consequences, and the difference between them decides what evidence is relevant and whether any appeal exists afterwards.

• Serious criminality and criminality — a conviction in Canada, or an offence committed abroad that has a Canadian equivalent. How the foreign offence is matched to a Canadian one is often the whole argument.
• Misrepresentation — withholding or misstating a material fact that could induce an error in the administration of the legislation, whether or not the error actually occurred.
• Non-compliance — failing to meet a requirement of the legislation, such as a condition attached to a status or a residency requirement.
• Security, human rights violations and organized criminality — grounds with their own lower standard of proof and their own bars on appeal.
• Health and financial grounds — narrower in practice, and largely evidentiary.

The standard of proof is not uniform either. For several of the grounds the legislation asks whether there are reasonable grounds to believe the facts occurred, which is a lower threshold than the balance of probabilities that applies elsewhere. Knowing which test governs the allegation on the referral shapes what is worth putting before the Division and what is not.

Where the allegation rests on a conviction, the analysis overlaps with criminal inadmissibility; where it rests on something said or omitted in an application, it overlaps with misrepresentation. Our legal team assists with the full range of your matter, including applications filed with IRCC.

What representation at the hearing involves

Most of the work happens before the hearing date.

• Reading the referral and the disclosure — the section 44 report, the officer's notes, and the documents the Minister intends to rely on.
• Testing whether the allegation is made out — whether the facts alleged are established to the applicable standard, and whether they meet the legal definition of the ground named.
• Assembling responding evidence — records, translations, foreign legal materials where an offence has to be compared to a Canadian one, and witness evidence where a fact is genuinely in dispute.
• Procedural applications — requests for an interpreter, for disclosure, or for a change of date where preparation cannot realistically be completed.
• Appearing — making submissions, questioning witnesses where there are any, and responding to the Minister's counsel.

Where the person is in custody, the admissibility hearing runs alongside detention reviews on their own statutory schedule, and the two proceedings are prepared together even though they decide different questions.

Who this service is for

Enquiries usually come from one of three situations: a person who has received a notice to appear at an admissibility hearing and does not know what the allegation means; a family member acting for someone in detention; or a permanent resident who has been told that a report has been written and wants to understand what happens next.

What is useful at a first call is short and concrete — a copy of the referral or notice, the section named in it, whether the person is detained, the hearing date if one has been set, and the underlying facts as the person understands them.

What happens after the decision

If the allegation is not made out, the proceeding ends. If it is, the Division issues the removal order that corresponds to the ground, and the type of order carries consequences of its own — a departure order, an exclusion order and a deportation order differ in what they require and in whether a person may return later. Those differences are set out on our page about removal orders.

Whether a decision can be appealed depends on who the person is and which ground was found. Some permanent residents have a right of appeal to the Immigration Appeal Division; the legislation removes that right for certain grounds, including serious criminality above a defined sentence threshold. Where no appeal lies, the remaining route is an application for leave and judicial review at the Federal Court, which examines the reasonableness or fairness of the decision rather than rehearing the evidence. The distinction between an appeal to the Immigration Appeal Division and a judicial review is a real one, and it is fixed by the decision made at this hearing.

Speaking to us

Karb Law is in Richmond Hill and appears at Immigration and Refugee Board proceedings across the Greater Toronto Area. Because the allegation is set by the referral and the hearing is confined to it, early sight of the paperwork changes what can be done with it. You can contact the office, request a free assessment, or read about our other immigration work and practice areas.