IRCC Minister Transition Binder 2025-05

Legal Framework: Decision-Making Authority

Context

This document outlines the legal framework surrounding your decision-making authority, as Minister of Immigration, Refugees and Citizenship, and clarifies the scope and limits.

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 (IRPA) 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 Immigration, Refugees and Citizenship (IRC) is 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 (IRB) is an independent administrative tribunal responsible for adjudicating and making decisions on inland refugee claims that are referred to it by Immigration, Refugees and Citizenship Canada (IRCC), and, for certain cases, determining inadmissibility and making removal decisions. The IRB also provides for an administrative appeal process including refugee appeal and for certain family class sponsorship appeals.
• Minister of Public Safety is 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 is 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 is responsible for matters relating to special advocates. Special advocates play a central role in the security certificate process.
• Department of Justice counsel are responsible to defend IRCC, CBSA and IRB decisions before Courts (Federal Court, Federal Court of Appeal, Supreme Court of Canada and Provincial Courts).
• 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.

Who Makes The Decisions That Fall Within IRCC’s Responsibility?

• 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.
• Officers hold 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 IRC “designates” which officers can make these decisions and can issue guidelines and in some cases Ministerial Instructions, but the Minister cannot make the decision themself.
• The Minister holds authorities to grant permanent residence or exemptions from requirements in IRPA and its Regulations on humanitarian and compassionate grounds (s.25(1), s. 25.1), issue danger opinions, and make pre-removal risk assessment decisions.
  • The Minister has delegated these powers to various officials in the Department. [Redacted]

“Minister” Authorities That Have Not Been Delegated

• The authority to issue Ministerial Instructions, such as for the creation of pilot economic programs (s. 14.1), management (including capping intake) of applications (s. 87.3), conduct of examinations (s. 15(4), instructions regarding issuance of temporary resident permits to foreign nationals who are inadmissible or do not meet the requirements of the Act (s. 24(3)), and certain Ministerial Instructions authorities governing the Express Entry program (s. 10.3).
• 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).
• 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, human rights violations, serious criminality or organized criminality, triggering a process whereby sensitive information can be protected, the foreign national is detained and the Federal Court is the final decision maker.

Citizenship Act Authorities

• Most decision-making authorities in the Citizenship Act are given to you as the Minister (such as for issuance of proof of citizenship, grants of citizenship and waivers of certain requirements of the Citizenship Act).
• You hold the prerogative to ordinarily delegate all 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

• Most decision-making authorities in the Canadian Passport Order are given to you as 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.