IRCC Minister Transition Binder 2025-03

Legal Framework: Decision-Making Authority

March 2025

Legal Framework

Immigration, refugee protection, citizenship and passport decision-making authorities are established in a number of federal Acts, Regulations and Orders-in-Council, including:

• The Department of Citizenship and Immigration Act
• The Immigration and Refugee Protection Act and its Regulations
• The Citizenship Act and its Regulations
• The Canadian Passport Order and Diplomatic and Special Passports Order

All decisions must be made within the authorities provided by the applicable legislation and in compliance with the Charter of Rights and Freedoms and applicable administrative law principles, such as making decisions in an unbiased and procedurally fair manner.

Immigration and Refugee Protection Act Authorities - Who are the Different Players?

Minister of IRCC

• Generally responsible for the administration of the Act, notably as it relates to refugees and the selection of temporary and permanent residents.

Immigration and Refugee Board

• An independent administrative tribunal that adjudicates and makes decisions on inland refugee claims referred by IRCC, and, for certain cases, determines inadmissibility and makes removal decisions. The IRB also provides an administrative appeal process including for refugee appeal and certain family class sponsorship appeals.

Minister of Public Safety

• Responsible for enforcement matters, in particular port of entry examinations, detention and removals, policies on serious inadmissibility (security, war crimes, and organized crime), and the granting of relief in relation to some of those serious inadmissibilities.

Minister of Employment and Social Development

• Responsible for certain provisions regarding temporary foreign workers, including issuance of labour market impact assessments to support a work permit application and inspection of temporary foreign worker employers

Minister of Justice

• Responsible for matters relating to special advocates. Special advocates play a central role in the security certificate process.

Department of Justice Counsel

• Responsible to defend decisions before Courts (Federal Court, Federal Court of Appeal, Provincial Courts).

Federal Court

• Any decision, determination, measure or order made under the Act can be challenged by way of a leave and judicial review application to the Federal Court. The Federal Court can overturn a decision/measure/order taken by IRCC and can also issue a stay of removal pending the outcome of the legal challenge.

Immigration and Refugee Protection Act authorities - Who makes the decisions that fall within IRCC’s responsibility?

Minister

• Authorities to grant permanent resident status and exemptions from requirements in the Act and Regulations on humanitarian and compassionate grounds (s.25(1), s. 25.1,) danger opinions, and pre-removal risk assessment authorities.
• The Minister ordinarily delegates these powers to various officials in the Department.

Officers

• Most decision-making authorities, such as in relation to temporary and permanent resident applications, including their eligibility and admissibility to Canada, and temporary resident permits.
• These are officer decisions. The Minister of IRCC designates which officers can make these decisions, but the Minister cannot make the decision himself/herself.

Designated and delegated officers are guided by the applicable laws and departmental policies and operational guidelines in making their decisions. Designated officers are also guided in some cases by Ministerial Instructions.

Immigration and Refugee Protection Act authorities - Who makes the decisions that fall within IRCC’s responsibility?

“Minister” Authorities that have not been Delegated

• The authority to issue Ministerial Instructions such as with regard to the creation of pilot economic programs (s. 14.1), the management (including capping intake) of applications (s. 87.3), conduct of examinations (s. 15(4), or instructions regarding the issuance of temporary resident permits to foreign nationals who are inadmissible or do not meet the requirements of the Act (s. 24(3)).
• The authority to establish a public policy under s.25.2, which permits officers to grant specified exemptions to individuals who meet the conditions that the Minister sets out in the public policy.

“Minister” authorities that, by law, Cannot be Delegated

• A declaration that prevents a foreign national from becoming a temporary resident on public policy grounds (s. 22.1) called “negative discretion”.
• Jointly, with the Minister of Public Safety, the signing of a security certificate (s. 77), stating a permanent resident or foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

Citizenship Act Authorities - Who makes the Decisions?

Most decision-making authorities in the Citizenship Act are given to the Minister (such as for issuance of proof of citizenship, grants of citizenship and waivers of certain requirements of the Citizenship Act).

• The Minister ordinarily delegates all his/her powers to various officials in the Department.
• Officials are guided by departmental policies and operational guidelines in making their decisions

• A citizenship judge has the authority to decide on whether persons seeking a grant of citizenship meets the residency requirement in case of doubt.
• For revocations of citizenship for fraud and misrepresentation, the Federal Court is the decision-maker unless the person requests that the Minister decide, in which case a delegated official will ordinarily make the decision.

Canadian Passport Order Authorities - Who makes the Decisions?

Most decision-making authorities in the Canadian Passport Order are given to the Minister of IRCC (such as for the issuance, refusal, revocation or cancellation of a passport).

• Officials in appropriate positions within IRCC exercise the Minister’s powers set out in the Passport Order.
• In doing so, they are guided by departmental policies and operational guidelines in making their decisions.

• The Minister of Public Safety has the authority for the refusal, revocation or cancellation of a passport in cases of terrorism or national security.