What Happens at an Admissibility Hearing Before the Immigration Division?

At an admissibility hearing before the Immigration Division (ID), an administrative decision-maker formally adjudicates whether a foreign national or permanent resident is legally inadmissible to Canada under the Immigration and Refugee Protection Act (IRPA). Pursuant to section 173 of the IRPA, the ID is statutorily mandated to hold a hearing where practicable, give notice to the concerned individual and the Minister, and proceed without delay. Because the proceeding is strictly federal, geographic location does not alter the governing legal test or procedure; whether the hearing convenes in British Columbia, Ontario, or elsewhere, identical federal statutory standards apply.

Procedural Timelines & Statutory Framework

Admissibility proceedings before the Immigration Division operate under strict statutory timelines, established standards of proof, and formal procedural codes under the Immigration and Refugee Protection Act (IRPA) and the Immigration Division Rules (ID Rules).

Initiating the Proceeding: Section 44 Report and Referral

The inadmissibility process commences under section 44 of the IRPA. If an immigration officer forms the opinion that a permanent resident or foreign national in Canada is inadmissible, the officer drafts an administrative report under section 44(1). If the Minister (or designated representative) considers that report well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing pursuant to section 44(2).

Referral to the ID is not automatic across all scenarios. Under section 228(1) of the Immigration and Refugee Protection Regulations (IRPR), the law mandates that in specified circumstances concerning foreign nationals, the report “shall not be referred to the Immigration Division.” In those instances, removal orders are issued directly by administrative authorities through an alternative statutory process outside the ID.

Pre-Hearing Procedures and the 5-Day Disclosure Rule

Once a matter is referred, the ID establishes the date, time, and location of the hearing. The Immigration Division Rules enforce strict pre-hearing protocols to safeguard procedural fairness:

• Ministerial Disclosure: Under ID Rules 3, 22, and 26, the Minister must disclose the section 44 report, the referral, and all documentary evidence intended for reliance to both the tribunal and the concerned party.
• The Five-Day Rule: Any party intending to introduce documents or evidentiary materials at the hearing must provide them to the opposing party and the ID at least five days before the hearing date.
• Legal Representation: Under IRPA section 167(1), the person concerned has the right to appear with legal counsel or an authorized representative at their own expense. Under section 167(2), if the person is under 18 years of age or unable to appreciate the nature of the proceedings, the ID must appoint a designated representative.
• Witness Testimony and Subpoenas: Under ID Rules 32(1) and 33(1)–(2), any party intending to call a witness must disclose the general nature and subject of their anticipated testimony in advance. When an application for a summons (subpoena) is submitted, the ID determines whether the testimony is genuinely necessary for a full and proper hearing.
• Adjournment Requests: Under ID Rule 43(1)–(3), an application to change the date or time of a hearing must be made promptly. Crucially, the rule specifies: “Unless a party receives a decision … allowing the application, the party must appear.” Filing an adjournment application does not excuse non-appearance.
• Private Proceedings: Admissibility hearings are generally open to the public; however, an application may be submitted in writing under ID Rule 45(1) requesting that the hearing proceed in camera.

Evidentiary Flexibility, Standard of Proof, and Burden

The Immigration Division is an administrative tribunal. Under section 173(c)–(d) of the IRPA, the ID is not bound by formal, technical court rules of evidence; it may receive any evidence it considers credible or trustworthy in the circumstances. However, administrative flexibility does not displace natural justice. In Bruzzese v. Canada (Public Safety and Emergency Preparedness), 2016 FC 1119 (at para 25), the Federal Court confirmed that an individual must not be denied a “meaningful opportunity to answer the case against them.”

The standard of proof and the allocation of the evidentiary burden depend on the statutory grounds and the legal status of the person:

• The General Standard (Sections 34–37): Pursuant to section 33 of the IRPA, determinations of fact for inadmissibility grounds under sections 34 to 37 are assessed on “reasonable grounds to believe.” In Cugliari v. Canada (Citizenship and Immigration), 2023 FC 263 (at para 14), the Federal Court clarified that this threshold demands “more than a mere suspicion, but less than the civil standard of a balance of probabilities.”
• The Minister’s Onus: In most proceedings where the government alleges that a person in Canada is inadmissible, the Minister carries the burden of establishing the necessary facts. As affirmed in Cugliari (at para 15) regarding organized criminality, “the Minister … bears the onus.”
• The Shift under Section 45: The statutory allocation of burden is not uniform. In Akinpelu v. Canada (Citizenship and Immigration), 2021 FC 523 (at para 13), the Federal Court observed that while the Minister bears the burden in a specific referral under section 35(1)(a), the allocation changes under section 45: “when section 45 is involved, the burden lies on an applicant.” For a foreign national seeking entry into Canada who has not yet been authorized, section 45(d) places the burden on that individual to establish their admissibility.
• The Balance of Probabilities Exception: A critical statutory distinction exists for permanent residents. Under section 36(3)(d) of the IRPA, assessing whether a permanent resident committed an act outside Canada pursuant to section 36(1)(c) requires proof on a “balance of probabilities,” a distinctly higher standard than reasonable grounds to believe.

Statutory Grounds for Inadmissibility (Sections 34–42 IRPA)

The legal grounds establishing inadmissibility are codified in sections 34 through 42 of the IRPA:

• Security (Section 34): Involvement in espionage, subversion, or acts of terrorism.
• Human or International Rights Violations (Section 35): Complicity in war crimes, crimes against humanity, or association with designated regimes.
• Sanctions (Section 35.1): Breaches of prescribed international sanctions frameworks recognized by Canada.
• Serious Criminality and Criminality (Section 36): Criminal convictions inside or outside Canada, or acts committed abroad. Under IRPR sections 17 through 19, the regulatory framework sets out criteria for rehabilitation; an individual may be deemed rehabilitated depending on elapsed time and offense classification. Therefore, a foreign criminal record does not automatically generate a removal order without examining statutory rehabilitation criteria. Where criminal allegations intersect with Canadian immigration law, retaining an experienced criminal defence lawyer in Canada is critical to assess equivalency, sentencing thresholds, and potential inadmissibility outcomes.
• Organized Criminality (Section 37): Membership or participation in transnational criminal syndicates or illicit enterprise.
• Health Grounds (Section 38): Health conditions that pose a danger to public health or public safety, or that are reasonably expected to cause excessive demand on health or social services.
• Financial Reasons (Section 39): Inability or unwillingness to maintain self-sufficiency without relying on Canadian social assistance.
• Misrepresentation (Section 40): Directly or indirectly withholding or misrepresenting material facts that induce or could induce an administrative error.
• Non-Compliance with the Act (Section 41): Failure to adhere to requirements, terms, or conditions imposed under the IRPA or IRPR.
• Inadmissible Family Member (Section 42): Where a family member’s inadmissibility renders the person inadmissible in prescribed circumstances. Under IRPR section 227(2), such family members must be notified of their right to make submissions and be represented.

Furthermore, under IRPA section 42.1(1), the Minister retains discretionary authority in certain matters involving security, human rights violations, or organized criminality to determine that the inadmissibility shall not bar entry or status on the basis of national interest. This discretion belongs exclusively to the Minister and is outside the jurisdiction of the ID.

Final Tribunal Dispositions and Types of Removal Orders

Following oral closing submissions (governed by ID Rule 48), the Immigration Division must issue one of the formal statutory determinations enumerated in section 45 of the IRPA:

1. Recognize the individual’s legal right to enter Canada (s 45(a));
2. Grant permanent resident status or temporary resident status if all legal prerequisites are met (s 45(b));
3. Authorize the foreign national to enter Canada for further examination (s 45(c)); or
4. Issue an operative removal order if inadmissibility is legally established (s 45(d)).

The specific removal order issued—a departure order, exclusion order, or deportation order—is governed by the underlying inadmissibility finding and IRPR provisions. Under IRPR section 229(1), findings based on security, human rights violations, serious criminality, or organized criminality mandate the issuance of a deportation order.

Legal Recourse: Appeals to the IAD vs. Judicial Review

A party subject to an adverse removal order by the ID must identify the correct statutory forum for relief:

• Immigration Appeal Division (IAD): Under sections 63(2)–(5) of the IRPA, certain permanent residents, protected persons, and foreign nationals holding permanent resident visas possess a statutory right to appeal a removal order to the IAD. However, section 64(1) expressly strips the IAD of jurisdiction over appeals involving findings of security (s 34), human rights violations (s 35), sanctions (s 35.1), serious criminality (s 36(1)), or organized criminality (s 37).
• Federal Court Judicial Review: Where no right of appeal lies to the IAD, or if an IAD appeal is dismissed, the individual may apply for Judicial Review before the Federal Court pursuant to section 72(1)–(2) of the IRPA. The application requires leave (permission) of the Court.
• Statutory Deadlines: For a decision rendered within Canada, the application for leave must be filed within 15 days of receiving notification of the decision. Following the leave filing, Rule 10(1)–(2) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules establishes a separate 30-day deadline to file and perfect the applicant’s record.
• Request for Written Reasons: Under ID Rule 7(4), if a decision is delivered orally, a party must file a formal request for written reasons within 10 days after the decision takes effect.

Jurisdictional Limits: Provincial and Municipal Enactments

Adjudicating immigration inadmissibility falls exclusively within federal legislative authority. Provincial statutes and municipal bylaws do not alter the proceedings or legal tests applied by the Immigration Division:

• British Columbia: The Provincial Immigration Programs Act (ss 1, 3) and the Provincial Immigration Programs Regulation (s 2) govern provincial nomination streams pursuant to the Canada–British Columbia Immigration Agreement. They manage economic nomination criteria, not federal inadmissibility adjudications.
• Ontario: The Ontario Immigration Act, 2015 (ss 10–11) governs the provincial selection and settlement of immigrants. Provincial selection is legally distinct from the federal inadmissibility machinery established under IRPA sections 44 and 45.
• City of Toronto: The City of Toronto Act, 2006 (ss 8, 11) sets out municipal administrative powers. Section 11 confirms that municipal bylaws are inoperative to the extent of any conflict with federal enactments. The City of Toronto has no jurisdiction over federal ID proceedings or determinations.

Individuals facing an admissibility hearing before the Immigration Division or contending with criminal inadmissibility issues can consult the immigration and administrative litigation team at Pax Law Corporation for comprehensive legal defense.