An admissibility hearing is a proceeding before the Immigration Division of the Immigration and Refugee Board that settles one question: whether a permanent resident or a foreign national is inadmissible to Canada under the Immigration and Refugee Protection Act, and, where a person is found inadmissible, which removal order the law attaches to that finding. It is not a criminal trial, and it does not decide custody.
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. What follows is general information about procedure in Canada and is not legal advice; reading it does not create a paralegal-client relationship, and every admissibility hearing turns on its own record.
What does an admissibility hearing decide?
It decides whether the ground of inadmissibility the Minister has alleged is made out, and nothing wider. Section 45 of the Act gives the Immigration Division a closed list of four decisions at the conclusion of a hearing, and the Division must make one of them.
Two neighbouring questions belong elsewhere. Whether a person stays in immigration custody is decided at a detention review — the same tribunal, a different test, its own fixed schedule. Whether a person is a refugee is decided by the Refugee Protection Division. A person can be released from detention and still face an admissibility hearing, and a person can be found inadmissible while a refugee claim is still outstanding.
How does a matter reach the Immigration Division?
Through a report and a referral, both under section 44. An officer who is of the opinion that a permanent resident or a foreign national in Canada is inadmissible may prepare a report setting out the relevant facts, and that report is transmitted to the Minister.
If the Minister is of the opinion that the report is well-founded, the Minister may refer it to the Immigration Division for an admissibility hearing. Section 44(2) carves out two situations in which the Minister may instead make the removal order directly, with no tribunal hearing at all: a permanent resident who is inadmissible solely for failing to meet the residency obligation in section 28, and a foreign national in circumstances prescribed by the Regulations.
Section 44(3) also allows an officer or the Division to impose conditions on a person who is the subject of a report, a hearing or a removal order.
What are the four decisions the Division can make?
Section 45 lists them exactly. Three of the four leave the person in Canada; only the fourth produces a removal order.
| Decision under section 45 | When it applies |
|---|---|
| (a) Recognize the right to enter Canada | The person is a Canadian citizen within the meaning of the Citizenship Act, a person registered as an Indian under the Indian Act, or a permanent resident |
| (b) Grant permanent resident or temporary resident status | The Division is satisfied that a foreign national meets the requirements of the Act |
| (c) Authorize entry for further examination | A permanent resident or foreign national is authorized to enter Canada, with or without conditions, so that the examination can be completed |
| (d) Make the applicable removal order | The person is inadmissible — on a test that differs depending on who they are |
Paragraph (a) is worth pausing on. The Act's inadmissibility provisions reach permanent residents and foreign nationals only, so where citizenship is in issue that question is decided first, and a favourable finding ends the matter.
Who has to establish what?
It depends on whether the person was authorized to enter Canada. Paragraph 45(d) is drafted in two halves and each half carries a different burden.
Against a foreign national who has not been authorized to enter Canada, the Division makes the applicable removal order "if it is not satisfied that the foreign national is not inadmissible". The double negative is deliberate: at the port of entry the onus rests on the person to satisfy the tribunal that they are admissible.
Against a foreign national who has been authorized to enter Canada, or against a permanent resident, the Division makes the order "if it is satisfied that the foreign national or the permanent resident is inadmissible". Here the Minister's counsel puts the case in and the tribunal must be positively satisfied before an order follows.
The standard of proof is set by section 33 for the security and criminality grounds. For inadmissibility under sections 34 to 37, the facts include facts arising from omissions and, unless otherwise provided, facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. The Supreme Court of Canada described that standard in Mugesera as requiring more than suspicion — an objective basis founded on compelling and credible information — while sitting below the balance of probabilities. For grounds outside sections 34 to 37, such as misrepresentation, the ordinary civil standard applies.
Which grounds of inadmissibility can be in issue?
The grounds sit in Division 4 of Part 1 of the Act, sections 33 to 43. Some apply to both permanent residents and foreign nationals; several reach foreign nationals only.
| Ground | Section | Who it can apply to |
|---|---|---|
| Security | 34 | Permanent residents and foreign nationals |
| Violating human or international rights | 35 | Permanent residents and foreign nationals |
| Sanctions | 35.1 | Foreign nationals |
| Serious criminality | 36(1) | Permanent residents and foreign nationals |
| Criminality | 36(2) | Foreign nationals |
| Organized criminality | 37 | Permanent residents and foreign nationals |
| Health grounds | 38 | Foreign nationals |
| Financial reasons | 39 | Foreign nationals |
| Misrepresentation | 40 | Permanent residents and foreign nationals |
| Cessation of refugee protection | 40.1 | Permanent residents and foreign nationals |
| Non-compliance with the Act | 41 | Permanent residents and foreign nationals |
| Inadmissible family member | 42 | Foreign nationals |
The grounds are described in more detail in an earlier article on the classes of inadmissibility. Section 42.1 sits alongside them, allowing the Minister to declare that sections 34, 35 and 37 do not apply where satisfied that it is not contrary to the national interest — a ministerial decision, not a tribunal one.
Which removal order goes with which ground?
The Division does not choose the type of removal order. Section 229 of the Immigration and Refugee Protection Regulations prescribes, for the purposes of paragraph 45(d), the applicable order for each ground.
| Ground of inadmissibility | Order the Division must make |
|---|---|
| Security — s. 34(1) | Deportation order |
| Violating human or international rights — s. 35(1) | Deportation order |
| Serious criminality — a permanent resident under s. 36(1), or a foreign national under s. 36(1)(b) or (c) | Deportation order |
| Criminality — a foreign national under s. 36(2)(b) or (c) | Deportation order |
| Organized criminality — s. 37(1) | Deportation order |
| Health grounds — s. 38(1) | Exclusion order |
| Financial reasons — s. 39 | Exclusion order |
| Misrepresentation — s. 40(1)(a) or (b) | Exclusion order |
| Misrepresentation — s. 40(1)(d) | Deportation order |
| Failure to appear for examination — s. 41(a) | Exclusion order |
| Permanent resident non-compliance — s. 41(b) | Departure order |
| Any other failure to comply with the Act — s. 41(a) | Exclusion order |
Two subsections override that table. Under section 229(2), where a refugee claim has been made and found eligible for referral, or eligibility has not yet been determined, a departure order applies in several of the exclusion-order situations above. Under section 229(3), the order becomes a deportation order where the person was previously subject to a removal order on the same grounds, has failed to comply with a condition or obligation imposed under the Act, or has been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment.
What separates the three orders afterwards — when a person may return, and whether written authorization is needed — is set out in the article on the types of removal order.
What happens in the hearing room?
An admissibility hearing is adversarial: the Minister is represented by counsel, the person concerned may be represented by counsel of their choosing, and a member of the Immigration Division decides. Hearings are commonly held in person or by videoconference, and an interpreter is arranged by the Board where one is needed.
Section 173 governs how the Division proceeds. It must hold a hearing where practicable, must give notice of the proceeding to both the Minister and the person who is the subject of it and hear the matter without delay, is not bound by any legal or technical rules of evidence, and may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.
That relaxed evidentiary rule cuts in both directions. Material a criminal court would exclude can be put before the member — foreign police records, officer notes, statements taken at a port of entry — and its reliability becomes a matter for argument rather than admissibility.
Is there an appeal from an admissibility hearing?
Sometimes, and section 63 says who has that right. A permanent resident or a protected person may appeal to the Immigration Appeal Division against a removal order made at an admissibility hearing, and so may a foreign national who holds a permanent resident visa. The Minister may also appeal a decision of the Immigration Division. A foreign national without a permanent resident visa has no appeal to the IAD from an admissibility hearing.
Section 64 then removes the appeal in defined cases. No appeal lies where the person has been found inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality or organized criminality. For that purpose, serious criminality means a crime punished in Canada by a term of imprisonment of at least six months, or one described in paragraph 36(1)(b) or (c). Section 64(3) also bars an appeal from a decision based on a misrepresentation finding, unless the foreign national is the sponsor's spouse, common-law partner or child.
Where no appeal exists, the remaining route is an application for leave and judicial review in the Federal Court, filed within 15 days for a matter arising in Canada. Leave is decided before any hearing on the merits, and judicial review examines the reasonableness of the decision rather than re-hearing the evidence.
What happens after a removal order is made?
A removal order made at an admissibility hearing comes into force according to the rules in section 49, and its enforcement can be affected by other proceedings. A stay of removal may arise by operation of law — for instance while an appeal to the Immigration Appeal Division is pending — or may be granted by a court or by the Minister.
Karb Law appears on admissibility hearings and the enforcement matters that travel with them, including removal orders and appeals to the Immigration Appeal Division. Anyone with a hearing date can contact the office to discuss representation.
