The Immigration Division (ID), of the Immigration and Refugee Board of Canada (IRB), reviews, at intervals established in the
Immigration and Refugee Protection Act (IRPA), the grounds for detention of foreign nationals or permanent residents detained under the IRPA.
The grounds for detention are:
- Danger to the public
- Flight Risk (unlikely to appear for examination, an admissibility hearing, removal, or at a proceeding that could lead to the Minister issuing a removal order under subsection 44(2) of the IRPA)
- The Minister is taking necessary steps to inquire into a reasonable suspicion that the person concerned is inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality
- Identity of the person concerned has not been established
- Identity of the designated foreign national has not been established
When the Canada Border Services Agency (CBSA) detains a person and that person is not released, the ID must review the grounds for detention and decide whether there is reason under the IRPA to continue detention. At the review, the member will also take into consideration any alternative to detention that is presented and assess its suitability if necessary.
The ID carries out a review:
- within 48 hours of the start of detention or without delay afterwards;
- then within 7 days of that first review; and
- after that, the ID reviews the grounds for detention at least once every 30 days.
These time frames do not apply to designated foreign nationals, to whom different time frames apply. The person concerned may request an early review of detention at any time, but must present new facts to justify the request. Either the person concerned or Minister's counsel may apply to the
Federal Court of Canada for leave, or permission, for a judicial review of any IRB decision on detention.
Based on the evidence and the testimony of both parties (the CBSA and the person concerned) and any other witnesses, the ID may:
- order the release of the person, with or without conditions; or
- order continued detention.