Standard of proof in immigration to Canada – threshold of proof

Immigration officers review thousands of applications every day. They refuse some and approve of others. Nonetheless, how do they review those applications? In this article, I explore the standard of proof in immigration to Canada. Of course, I’ll do my best to simplify the subject as much as possible.  Therefore, this is not a legal commentary.

What is the standard of proof?

The standard of proof or threshold of proof means how a person or entity decides on a matter. Here are four specific standards of proof:

• Beyond a reasonable doubt: Criminal courts use this standard. The judge or jury convicts a person only if they believe they have committed the crime beyond a reasonable doubt. Of course, we could expand this strict standard to other aspects of decision-making.
• Balance of probabilities: Civil courts use this standard. As you can imagine, this standard is less rigid than “beyond a reasonable doubt.” Upon analyzing the evidence, you pick a more probable side.
• Reasonable grounds (to believe): This standard is less strict than the “balance of probabilities.” However, it is more stringent than “mere suspicion.”
• Mere suspicion: Public opinion on social media is primarily mere suspicion. People read a headline and conclude the story. Of course, some people investigate the issues before casting their opinion. However, deciding on mere suspicion is generally a common practice on social media.

I sorted the standards of proof from the strictest to the loosest. Of course, the more stringent the threshold of proof, the more robust evidence we need.

The standard of proof in immigration to Canada – Balance of Probabilities

The most common standard of proof in immigration cases is the “balance of probabilities.” Here are some examples:

• Temporary resident applications
• Permanent resident applications
• Citizenship applications
• Revocation of citizenship by the minister
• PRRA applications (persons in need of protection)
• Inadmissibility of a permanent resident because of criminal charges outside Canada
• Inadmissibility for any of the following reasons (Ref: ENF 05, page 21):
  • Act committed outside Canada – for permanent residents only [A36(1)(c)]
  • Inadmissible family member (A42)
  • Health grounds (A38)
  • Financial grounds (A39)
  • Misrepresentation (A40)
  • Cessation (A40.1)
  • Non-compliance with the Act or the Regulations (A41)
• Fact-finding for H&C applications
• Detention review hearings under the immigration law

Circumstances where the standard of proof is Reasonable Grounds to Believe

Despite this list, there are exceptions in which officers use the standard of reasonableness. Here are some examples:

Reasonableness standard under the Immigration Immigration Act

• Designation — human smuggling or other irregular arrival (A20.1(1))
• The following inadmissibility cases (Ref: ENF 05, page 21 and A33):
  • Security (A34)
  • Violation of human or international rights (A35)
  • Criminality (A36) – except for A36(1)(c) for permanent residents
  • Organized criminality (A37)
• Most cases of detention under the Immigration Act (A55 and A82.2)
• Minister’s warrant for arresting a person (A81)
• Protection of information in security-related proceedings (IRPA 83(1))
• Search of luggage and personal belongings, etc., at entry (IRPA 139(1))
• Seizure of fraudulently obtained vehicles, documents, etc. or if the seizure is necessary under the Act (IRPA 140(1))
• Ticketable offences (A144(3)(b))
• Some aspects of H&C applications (inadmissibility – see the IRCC PDI)

Examples of reasonableness under the Immigration Regulations

• Not accepting deposited money for the guarantee if the source of money is not legal (R47(3))
• Not being exempt from the requirements of a medical examination (R30(1)(a)(iv))
• Ceasing to be a member of a crew due to desertion (R3(1)(b)(ii)): Involves an officer’s belief, based on reasonable grounds, that a crew member has deserted.
• Revocation of the designation of a start-up designated organization or entering their dwelling (R98.03(6) & R98.13(8))
• Not issuing a work permit because the foreign national is unable to perform the work in Canada (R200(3)(a))
• Identifying a vulnerable worker (R207.1(1))
• Entering the dwelling to investigate the compliance of an employer (R209.8(6) & R209.9(6))
• Holding the documents of a person by the commercial transporter (R260(1))

Reasonableness standard under the Citizenship Act

• Section 10.5 of the Citizenship Act allows for the declaration of inadmissibility on reasonable grounds to believe a person misrepresented or concealed facts related to their citizenship, specifically regarding security, human rights violations, or organized crime.
• Section 19(2) of the Citizenship Act permits the Minister to report to the National Security and Intelligence Review Agency if there are reasonable grounds to believe a person poses a security threat to Canada or is involved in organized criminal activities, potentially barring them from receiving citizenship or renunciation benefits.
• Section 20(1) of the Citizenship Act specifies that citizenship, oath of citizenship, or certificate of renunciation will not be granted if the Governor in Council declares, based on reasonable grounds to believe, that the person is involved in activities threatening Canada’s security or engaged in organized crime, as reported under subsection 19(6).
• Section 23.2 of the Citizenship Act authorizes the Minister to seize and detain any document submitted under this Act if there are reasonable grounds to believe it was fraudulently or improperly obtained or used or to prevent such misuse.

Examples of reasonableness under the Citizenship Regulations

• Section 26.6 of the Citizenship Regulations: Allows the Minister to require a social insurance number in citizenship applications and to disclose this number and other relevant information to the Canada Revenue Agency. This disclosure aims to verify compliance with the Act and investigate discrepancies arising from false representation, fraud, or concealment of material circumstances under reasonable grounds for such belief.

What is the burden of proof?

The burden of proof determines who is responsible for presenting evidence in an application or a legal proceeding. This responsibility usually falls on the shoulders of the applicant, who must provide convincing evidence to support their case. However, the burden can shift depending on the circumstances of the case. For instance, when the Minister initiates legal action against an individual, such as in cases of citizenship revocation due to fraud, the burden of proof lies with the government. This means the government must present sufficient evidence to prove the allegations.

Consider a scenario where an individual is accused of misrepresenting information on their citizenship application. In this case, the government, not the accused, must gather and present evidence that demonstrates the individual’s alleged misrepresentation. The individual is presumed innocent until the government fulfills its burden of proof by showing that the misrepresentation occurred.

The distinction between who bears the burden of proof is fundamental in immigration applications and legal proceedings, as it influences how each party prepares and argues its case. Knowing whether you need to prove your claim or defend against one helps you strategically gather evidence and structure legal arguments. This understanding is crucial for anyone involved in legal disputes or processes, ensuring they meet their required legal standards.

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