The Immigration Appeal Division (IAD) has a duty to deal with appeals, simply, quickly and fairly. The IAD currently has over 10,000 appeals that are pending. This is resulting in excessive delays for parties who are waiting for their appeals to be resolved. On July 2, 2015 the IAD took steps to address this problem by introducing three administrative changes to its process (confirmation of intent to proceed, move to a one-step abandonment process and no reasonable prospect of success process). These measures have enabled the IAD to focus more of its resources on those appeals that fall within its jurisdiction and where appellants intend to proceed.
The IAD has identified an additional process that requires change: the cancellation of a stay of a removal order under subsection 68(4) of the Immigration and Refugee Protection Act (IRPA).
What is the current process?
If the IAD has resolved a removal order appeal where the appellant was found inadmissible for serious criminality or criminality by staying the removal order, and the appellant is convicted of another serious criminality offence described in subsection 36(1) of the IRPA (an offence punishable by a maximum term of imprisonment of at least 10 years or an offence for which a term of imprisonment of more than six months has been imposed), subsection 68(4) works to cancel the stay by operation of law and the appeal is terminated.
IAD Rule 27(1) provides that if a stay of removal is cancelled under subsection 68(4), the Minister must provide the IAD and the appellant with written notice of cancellation.
Right now, when the IAD receives a notice of cancellation of stay from the Minister, it contacts both parties and gives them the opportunity to make written submissions on the question of whether the stay is cancelled and the appeal terminated. In almost all cases where the IAD requests submissions, appellants either do not respond, or they provide submissions that do not deal with the application of subsection 68(4) but deal instead with humanitarian and compassionate considerations. The IAD has no jurisdiction to consider humanitarian and compassionate considerations in these situations.
What changes are being introduced?
Beginning March 1, 2016, the IAD will no longer automatically ask the parties to provide written submissions upon receipt of a notice of cancellation. Instead, fifteen days after the IAD has received a notice of cancellation from the Minister, the notice together with the appeal file (including any additional documents received by the IAD from the parties within the fifteen days) will be forwarded to a member for decision.
The IAD may dispose of the appeal on the basis of the documents in the appeal file (including documents provided by the parties within the fifteen day period) without requesting written submissions and without holding a hearing in accordance with IAD Rule 25.
If the member decides that subsection 68(4) applies, the stay is cancelled by operation of law and the appeal is terminated. The parties will then receive notice of the decision and reasons for the decision terminating the appeal.
If the member decides that subsection 68(4) does not apply, the parties will receive notice of the decision and reasons for the decision. The stay of the removal order will continue on the conditions set out in the stay.
If the member decides that it would not be appropriate to deal with the appeal without submissions, the IAD will advise the parties in writing. The parties will be given an opportunity to provide written submissions. The member will then consider the written submissions together with the appeal in deciding whether or not subsection 68(4) applies to the stay of the removal order.