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Immigration - Refugee. Kirby v. Woods
In Kirby v. Woods (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here where a "wrongfully retained child was ordered back to her country of origin after Canada granted her refugee status".
In this context, the court sets out a summary of Canadian refugee law:(iii) The Canadian Refugee Determination System
[57] The contemporary Canadian refugee determination system was created following the Supreme Court’s landmark decision in Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177, which held that the importance of the rights engaged in the refugee determination process requires a procedure in line with the principles of fundamental justice. To determine refugee claims, the RPD is generally required to hold a hearing: IRPA, s. 170; Refugee Protection Division Rules, SOR/2012-256, r. 23.
[58] The RPD is mandated to determine refugee claims under the IRPA, and, pursuant to s. 162(1) of the IRPA, has sole and exclusive jurisdiction to hear and determine all questions of fact and law on proceedings brought before it. The Supreme Court has described the IRPA as “a parallel justice system established alongside courts of law to provide accessible, expert, and expeditious adjudication of a broad spectrum of claims” in the immigration context: Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467, at para. 28. As stated in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982, at para. 47, “the expertise of the [IRB] is in accurately evaluating whether the criteria for refugee status have been met and, in particular, assessing the nature of the risk of persecution faced by the applicant if returned to his or her country of origin.”
[59] Refugee determinations are made by independent decision makers mandated to act impartially: Kozak v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124, [2006] 4 F.C.R. 377, at paras. 52-57. The Canadian refugee determination process is robust, specialized, and tailored to the unique circumstances in which refugee claims are brought: A.M.R.I., at para. 72; Singh v. Canada (Citizenship and Immigration), 2022 FC 339, at para. 32.
[60] By design, the refugee determination process is different from the court process. The model is generally non-adversarial, and the role of the decision maker is more inquisitorial than in a traditional court process: Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385, at para. 29. The claimant typically gives oral evidence and may tender documents and call witnesses. The decision maker may actively question the claimant: see Olah v. Canada (Citizenship and Immigration), 2019 FC 401, 66 Imm. L.R. (4th) 299, at paras. 24-25.
[61] Unless confidentiality is waived by the refugee claimant, documentary record before the RPD and the RAD is confidential: IRPA, s. 166; see e.g., Mabrouki v. Canada (Minister of Citizenship and Immigration), 2003 FC 1104, 242 F.T.R. 171, at para. 5; see also UNHCR, Asylum Processes (Fair and Efficient Asylum Procedures), Global Consultations on International Protection, EC/GC/01/12 (31 May 2001), at para. 50. The presumption of confidentiality exists to protect refugee claimants and their families from alleged persecutors, be they states, organizations, or individuals.
[62] Child claimants are parties in their refugee claim: RPD Rules, r. 1. Claims of family members are typically joined together: RPD Rules, r. 55. However, the assessment of refugee claims is individualized; one family member could be found to be a Convention refugee where another family member is not: IRPA, ss. 96-97, 107; see e.g. Vartia v. Canada (Citizenship and Immigration), 2023 FC 1426, at para. 22.
[63] Child refugee claimants are represented by a designated representative (DR), whose role is to ensure that the child’s best interests are protected during the hearing: IRPA, s. 167(2); RPD Rules, r. 20(10). In some cases, the DR is the child claimant’s parent, so long as their interests do not conflict with those of the child claimant: see IRB, Designated Representative Guide, s. 2.2; Bukvic v. Canada (Citizenship and Immigration), 2017 FC 638, at para. 18. The RPD will typically appoint a third-party DR where there are allegations of abduction: see e.g., X (Re), 2017 CanLII 145536 (I.R.B.); X (Re), 2019 CanLII 120799 (I.R.B.).
[64] In some cases where the alleged persecutor is a spouse or former spouse, there is a risk that the refugee determination system may be abused, since the alleged persecutor is not entitled to notice of or participation in the hearing: A.M.R.I., at para. 73. Specifically, an abducting parent may seek to advance what are essentially family law or immigration goals through the refugee process.
[65] That said, the refugee determination process includes multiple safeguards to address the potential tactical use of the refugee system by an alleged child abductor. Where there is a possibility that a claim involves an abducted child, art. 1F(b) of the Refugee Convention applies. That article excludes persons from holding refugee status for whom there are “serious reasons for considering that … [they have] committed a serious non-political crime outside the country of refuge”. This article is recognized in s. 98 of the IRPA. Further, the Basis of Claim form requires disclosure of any document authorizing consent to travel with the child, which – whether the claim is made inland or at a port of entry – may trigger notice to the Minister. The RPD Rules also require RPD members to notify the Minister in all claims involving a child where the parent or child lacks custody or consent documents: r. 26(2). When the Minister intervenes, the hearing becomes adversarial. If the Minister shows a serious reason for considering that the parent has abducted the child without an applicable defence, the refugee claim will fail. The Minister may choose to intervene at any stage.
[66] To provide context for the rebuttable presumption against the return of a refugee child, which is discussed further, below, I set out the following basic evidentiary principles in a refugee hearing:a. The burden is always on the claimant, on a civil standard, to show they have a well-founded fear: The Minister of Citizenship and Immigration v. Flores Carrillo, 2008 FCA 94, [2008] 4 F.C.R. 636, at paras. 17, 20 and 38.
b. States are presumed capable of protecting their citizens; to rebut the presumption requires “clear and convincing” evidence: Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 S.C.R. 689, at pp. 724-26; Flores Carrillo, at para. 38.
c. A claimant must establish that their subjective fear of persecution is objectively well-founded: Ward, at pp. 712, 723; Canada (Citizenship and Immigration) v. Munderere, 2008 FCA 84, 291 D.L.R. (4th) 68, at para. 36, leave to appeal refused, [2008] S.C.C.A. No. 187.
d. If the Minister is alleging grounds to exclude, such as on the basis of alleged child abduction, he bears the burden of proof; the threshold is “serious reason for considering”, which is lower than a balance of probabilities but higher than “mere suspicion”: IRPA, s. 98; Refugee Convention, art. 1F(b); Quintana Murillo v. Canada (Citizenship and Immigration), 2008 FC 966, 333 F.T.R. 149, at para. 24; Qazi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1204, at para. 12, citing Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, 229 D.L.R. (4th) 235, at para. 174.
e. The RPD may receive evidence that it considers “credible or trustworthy in the circumstances”: IRPA ss. 170(g)-(h).
f. Although hearsay may be admissible, corroborative evidence may be required to ensure its trustworthiness: Senadheerage v. Canada (Citizenship and Immigration), 2020 FC 968, [2020] F.C.R. 617, at paras. 36, 41.
g. The decision maker may take notice of facts that may be judicially noticed, as well as generally recognized facts and information or opinion within the specialized knowledge of the tribunal: IRPA, s. 170(i); see e.g., Posluszny v. Canada (Minister of Citizenship and Immigration), 2004 FC 1085, at para. 9.
h. Unsolicited information may be considered by the RPD, if it can be adequately tested. It must be from an identifiable informant who agrees to disclosure to all parties: RPD, Policy on the Treatment of Unsolicited Information in the Refugee Protection Division, No. 2015-02, effective October 26, 1998, updated April 20, 2016; Reyes Pino v. Canada (Citizenship and Immigration), 2012 FC 200, 405 F.T.R. 157, at para. 38.
i. The claimant’s fear must be assessed based on “what is generally known about conditions and laws in the claimant’s country of origin, as well as the experiences of similarly situated persons in that country”: Odetoyinbo v. Canada (Citizenship and Immigration), 2009 FC 501, at para. 8.
j. The IRB creates National Document Packages (NDPs) to support the RPD in its decision-making process. NDPs are a standard source of country-of-origin evidence considered in assessing a refugee claim. NPDs are updated regularly, contain extensive, sourced, country documentation, and are agnostic as to the outcome of any claim. Decision makers may request additional country-of-origin research as required.
k. Expert witnesses may be permitted to testify before the RPD, but given the extensive NDP packages, they are often not required: RPD Rules, r. 44(1); see Kozak, at para. 26.
l. In determining whether state protection is available to a claimant, the decision maker considers “the adequacy of that protection at the operational level, not the efforts or intentions of the state”: Burai v. Canada (Citizenship and Immigration), 2020 FC 966, at para. 25. Legislation on its own is insufficient to ground a finding of state protection; the focus must be on the existence of an actual outcome of protection: Burai, at para. 25.
m. Where the Minister intervenes, he does so as a party, with full rights to cross-examine, call evidence and make submissions: RPD Rules, rr. 1, 29. [67] Under s. 169(b) of the IRPA, RPD decision makers must provide reasons for decisions. Those reasons must be transparent, intelligible, and justified: Vavilov, at para. 15; Mason, at para. 59. Decisions of the RPD may be appealed or subject to judicial review, with leave: IRPA, s. 110. Neither the Ontario Court of Justice nor the Ontario Superior Court sit in appeal of a refugee determination. . Jalalli v. Canada (Citizenship and Immigration) ['re-availment']
In Jalalli v. Canada (Citizenship and Immigration) (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, here against "a decision of the Refugee Protection Division (RPD) to cease his refugee protection under paragraph 108(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], on the basis that he had re-availed to Afghanistan on multiple occasions":III. Analysis
[8] The Applicant argues that the RPD misapplied the legal criteria outlined in Canada (Citizenship and Immigration) v Galindo Camayo, 2022 FCA 50 at para 18 [Camayo]. Camayo requires consideration of three criteria: (1) whether the applicant acted voluntarily (voluntariness), (2) whether he intended to re-avail himself of his country (intention), and (3) if he actually obtained that protection (re-availment).
A. Voluntarily actions
[9] On the issue of voluntariness, the Applicant submits that he lacked the intent to re-avail himself of Afghan protection, relying on this Court’s decision in El Kaissi v Canada (Citizenship and Immigration), 2011 FC 1234. He argues that his return to Afghanistan on multiple occasions was solely to care for his ailing mother, and not for the purpose of re-availing himself of state protection.
[10] In my view, the RPD reasonably found that the Applicant’s return to Afghanistan was voluntary. The RPD concluded that he was not compelled to return to Afghanistan and that his stated reason—caring for his mother—did not constitute exceptional circumstances, as the evidence demonstrated that his mother received assistance from her neighbours and the Applicant’s nephews. The RPD also found that if the Applicant feared the Taliban, it would be reasonable for him to find other ways to support his mother without endangering his own life. It found that the Applicant had the means and resources to meet his mother in an alternative safe country, as he had done several times in the past by traveling to India, avoiding return to Afghanistan.
[11] The Applicant points to jurisprudence where returning to a country of origin to care for a sick parent was not considered voluntary. However, the circumstances here differ significantly. The evidence demonstrates that, since 2005, the Applicant renewed his Afghan passport at least three times. He has used that passport to travel to India, to Iran to get married and for dental work.
[12] Considering this pattern of conduct, the RPD’s finding that the Applicant voluntarily re-availed himself of Afghan protection is reasonable.
B. Intention
[13] The RPD considered whether the Applicant rebutted the presumption of intention to re-avail that arises from the renewal of a passport. In doing so, the RPD addressed the Applicant’s explanation for his travel and applied the factors outlined in Camayo at paragraph 84. The RPD reasonably concluded that the Applicant’s circumstances did not amount to exceptional or compelling reasons requiring his return to his country of origin.
[14] The RPD considered the three Afghan passports he obtained and his travel back to Afghanistan on numerous occasions. The RPD also considered the length of his visits, his activities while using his Afghan passport for international travel and travel to Afghanistan, and his evidence on the precautions he took to avoid the agents of harm. The RPD found that this conduct collectively demonstrated a lack of subjective fear.
[15] The RPD also noted that the Applicant is well-educated and was aware of the potential immigration consequences of returning to Afghanistan. The RPD conducted an individualized analysis of the Applicant’s intent, applying the correct test in accordance with Camayo.
[16] Voluntary re-availment negates the refugee’s previous claim that they are "“unable or unwilling”" to avail themselves of the protection of their country of nationality (Balouch v Canada (Public Safety and Emergency Preparedness), 2015 FC 765 (CanLII) at para 20).
[17] I find no reviewable error in the RPD’s analysis of the "“intention”" factor of the re-availment assessment.
C. Actual re-availment
[18] In assessing whether the Applicant obtained protection of Afghanistan, the RPD considered the distinction between actual and incidental re-availment. The RPD also considered whether the Applicant encountered any difficulty entering or leaving the country.
[19] The RPD concluded as follows on this issue:[42] Here the Respondent not only renewed his Afghan passport repeatedly, but he used it for travel, not only to Afghanistan but also to India on many occasions and to Iran twice. When he traveled on his passport, and also when he entered and exited India and Iran, he did so on the strength of his Afghan passport, entrusting himself to the protection of that country. He had no difficulty entering or exiting Afghanistan on his passport. While in the country, he largely stayed at home, but did not take an exceptional security measures - and he remained Afghanistan for extended periods of time. [20] I find no reviewable error in the RPD individualized analysis above.
IV. Conclusion
[21] Overall, the RPD’s conclusion that the Applicant voluntarily re-availed himself to Afghanistan within the meaning of paragraph 108(1)(a) of the IRPA is reasonable. . Eweka v. Canada (Citizenship and Immigration)
In Eweka v. Canada (Citizenship and Immigration) (Fed CA, 2025) the Federal Court of Appeal allowed a JR, here against the refusal of an application for "permanent residence on humanitarian and compassionate grounds":[5] Given that the purpose of humanitarian and compassionate discretion is to "“mitigate the rigidity of the law in an appropriate case”", there is no limited set of factors that warrant relief (Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy] at para 19). The factors warranting relief will vary depending on the circumstances, but "“officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them”" (Kanthasamy at para 25; Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 [Baker] at paras 74-75).
[6] The Officer failed to substantively consider and weigh the Applicant’s contributions as a front-line worker in the early phase of the COVID-19 pandemic -- a relevant factor raised by the Applicant. This Court has addressed this issue in several cases and found it to be unreasonable for an officer to not evaluate this factor as part of an applicant’s personal circumstances (Chinwuba v Canada (Citizenship and Immigration), 2023 FC 679 at paras 32-37; Uwaifo v Canada (Citizenship and Immigration), 2022 FC 679 at paras 32-36; and Iroka v Canada (Citizenship and Immigration), 2024 FC 1316 at paras 6-10).
[7] The Officer’s treatment of Ms. Eweka’s work as a front-line worker during the pandemic is both unresponsive to the submissions or evidence before them and a failure to consider all relevant factors raised by the application as required (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 127-128; Kanthasamy at para 25; Baker at paras 74-75). Accordingly, the decision is unreasonable and must be redetermined. . Canadian Council for Refugees v. Canada (Citizenship and Immigration)
In Canadian Council for Refugees v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considered the validity of the bilateral Canada-US 'Safe Third Country Agreement' scheme, where refugees must apply for refugee status in the first of the two country that they land in. In these quotes the court sets out the scheme itself:A. Safe Third Country Agreement
[32] About 30 years ago, Canada and the United States undertook the negotiation of an agreement to share responsibility for refugee status claims. The Canadian Council for Refugees, Amnesty International and the United Nations High Commissioner for Refugees (“UNHCR”) were among the organizations whose comments resulted in substantive amendments to a draft of the Safe Third Country Agreement. The two states signed the agreement in 2002.
[33] The preamble to the agreement expressly acknowledges the governments’ international obligations to refugees (paras. 1, 2 and 8). It also addresses the parties’ shared determination to safeguard for each eligible claimant “access to a full and fair refugee status determination procedure” (para. 8) and emphasizes that both countries offer generous refugee protection systems (para. 4). Accompanying the treaty is a Statement of Principles associated with its implementation, which states that the parties intend to abide by principles that include safeguards for claimants, such as the opportunity for claimants to have a third party present during proceedings (Procedural issues associated with implementing the Agreement for cooperation in the examination of refugee status claims from nationals of third countries: Statement of Principles, August 30, 2002 (online)).
[34] The principle animating the Safe Third Country Agreement is that “the country of last presence shall examine, in accordance with its refugee status determination system, the refugee status claim of any person who arrives at a land border port of entry” (Article 4(1)). This is the “crux” of the treaty (A. Macklin, “Disappearing Refugees: Reflections on the Canada‑U.S. Safe Third Country Agreement” (2005), 36 Colum. Hum. Rts. L. Rev. 365, at p. 371) or its “general principle” (S. Baglay and M. Jones, Refugee Law (2nd ed. 2017), at p. 279). The country of last presence is “that country, being either Canada or the United States, in which the refugee claimant was physically present immediately prior to making a refugee status claim at a land border port of entry” (Article 1(1)(a)). The parties committed to reviewing the agreement and to inviting the UNHCR to participate in the first review (Article 8(3)).
[35] While Article 4(1) sets out a broad principle, the treaty is limited in its application. To begin, the governments sought to ensure that “indirect” or “chain” refoulement would not occur. They agreed that individuals returned to Canada or the United States would not be removed therefrom until that country had adjudicated the individual’s refugee status claim (Article 3). They also did not seek to apply the agreement to citizens or habitual residents of either country (Article 2) and provided for exceptions for unaccompanied minors and family reunification (Article 4(2)).
[36] Even when the principle articulated in Article 4(1) would apply, the parties agreed that there should be an authority to exempt claimants. Article 6 provides that “either Party may at its own discretion examine any refugee status claim made to that Party where it determines that it is in its public interest to do so”.
B. Domestic Implementation of the Safe Third Country Agreement
[37] Section 101(1)(e) of the IRPA implements the core principle of the Safe Third Country Agreement by providing that the claims of individuals who “came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence” are “ineligible” to be referred to the Refugee Protection Division. This gives domestic effect to the principle set out in Article 4(1) that an individual’s country of last presence will examine their refugee status claim. Various other rules in the IRPA and its regulations affect the application of this “general rule”, including (1) designation and review mechanisms; (2) limits to the scope of the general rule; and (3) exemptions.
(1) Designation and Review Mechanisms
[38] The IRPA sets forth the relevant criteria for when a country may be designated by the Governor in Council under s. 101(1)(e). Only countries that comply with the non-refoulement obligations under the relevant international conventions are eligible:102 (1) The regulations may govern matters relating to the application of sections 100 and 101 . . . and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions
(a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture; [39] Section 102(2) lists factors to be considered when ascertaining whether a country complies with refugee protection standards mandated by the Conventions:(2) The following factors are to be considered in designating a country under paragraph (1)(a):(a) whether the country is a party to the Refugee Convention and to the Convention Against Torture;
(b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture;
(c) its human rights record; and
(d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection. [40] The Governor in Council “must ensure the continuing review” of the s. 102(2) factors with respect to each designated country (s. 102(3)). The United States is the only country that has been designated (Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2004‑217). Section 159.3 of the IRPR, which the appellants challenge, provides:159.3 The United States is designated under paragraph 102(1)(a) of the Act as a country that complies with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture, and is a designated country for the purpose of the application of paragraph 101(1)(e) of the Act. (2) Limits to the General Ineligibility Rule
[41] Various provisions in the IRPR narrow the application of the ineligibility rule by ensuring that not all refugee claimants arriving from the United States are returned there. The regulations do this in two ways. First, the regulations contain limitations that closely track the contours of Articles 2, 3 and 4 of the Safe Third Country Agreement. For instance, under the regime considered in this appeal, s. 101(1)(e) ineligibility applies only to the claims of individuals who arrive at land ports of entry — not elsewhere along the land border, by ship or by air (IRPR, s. 159.4). There are specific exceptions for individuals with family in Canada, to facilitate family reunification (s. 159.5(a) to (d)). As the treaty contemplates, these exceptions are applied according to Canada’s domestic understanding of the family (Article 1(2); IRPR, s. 159.1). There are also exceptions for unaccompanied minors (s. 159.5(e)) and for individuals who have certain Canadian immigration statuses (s. 159.5(f) and (g)). Finally, the regulations ensure that certain individuals whose claims will not be adjudicated in the United States can access the Canadian system (s. 159.5(h)).
[42] Second, the regulations include an exception reflecting Canada’s discretion, preserved under Article 6 of the treaty, to consider claims when doing so is in its public interest (Baglay and Jones, at p. 279). Section 159.6 of the IRPR ensures that claimants who establish that they have been charged with, or convicted of, an offence punishable by the death penalty in the United States or another country are not returned.
(3) Exemptions From the Application of the General Ineligibility Rule
[43] Individuals subject to the provisions implementing the Safe Third Country Agreement cannot access some of the statutory mechanisms available to claimants in different circumstances. For instance, returnees are not eligible for a pre‑removal risk assessment before they are removed (IRPA, s. 112(2)(b)). Further, there is no administrative appeal body set out in the IRPA for them. Judicial review at the Federal Court, however, remains available (s. 72). Judges may grant stays of removal while such proceedings are ongoing (Federal Courts Rules, SOR/98-106, r. 373; see also Baglay and Jones, at pp. 354‑57).
[44] The IRPA does, however, contain mechanisms for temporary or permanent exemptions from return to the United States (see, e.g., H. Mayrand and A. Smith‑Grégoire, “À la croisée du chemin Roxham et de la rhétorique politique: démystifier l’Entente sur les tiers pays sûrs” (2018), 48 R.D.U.S. 321, at p. 342). First, officers may grant an administrative deferral from the enforcement of a removal order. This authority flows from s. 48(2) of the IRPA, which requires that removal orders be enforced “as soon as possible”. Courts have held that this provision leaves officers with discretion to delay the enforcement of a removal order (see, e.g., Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153, at paras. 13‑18; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, [2020] 2 F.C.R. 355, at para. 50; Tapambwa, at para. 87). In this case, ABC and her daughters benefitted from an administrative deferral of removal, during which their counsel applied for a stay of removal.
[45] Second, officers may grant a temporary resident permit. This authority flows from s. 24 of the IRPA, which allows an officer to issue a permit if they are “of the opinion that it is justified in the circumstances”. The Minister or their delegate may also make instructions to guide officers in determining when to issue such permits (s. 24(3)). Here, Ms. Al Nahass’s family received temporary resident permits while the Minister considered whether to grant permanent exemptions.
[46] Third, the Minister may grant an exemption based on humanitarian and compassionate grounds, as occurred for Ms. Al Nahass’s family. The Minister may exempt certain foreign nationals who are inadmissible from any of the requirements of the IRPA. They may grant exemptions where they view doing so as “justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected” (s. 25.1(1)). This assessment must “consider and give weight to all relevant humanitarian and compassionate considerations in a particular case” (Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, at para. 33 (emphasis in original)).
[47] Fourth, the Minister has a further discretion to exempt foreign nationals who are inadmissible from any of the requirements of the IRPA. The Minister may do so when they are “of the opinion that it is justified by public policy considerations” (s. 25.2(1)). The respondents observe that this provision permits the Minister to establish a temporary public policy exempting individuals who are part of a specified group from the ineligibility provision.
[48] Any removal order against a foreign national can be stayed while the Minister makes their decision in relation to s. 25.1(1) or 25.2(1) (IRPR, s. 233).
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