Report: An officer who believes that a permanent resident or foreign national in Canada is inadmissible may prepare a report for the Minister. IRPA s. 44(1).
Issuance of a removal order by an officer – Foreign national: If the Minister believes the report is well-founded, in the case of a foreign national where the report only includes grounds set out in Regulations 228(1), an officer shall make the appropriate removal order (deportation order, exclusion order or departure order). IRPA s. 44(2), Regulations s. 228(1).
Issuance of a removal order by an officer – Permanent resident: If the Minister believes the report is well-founded, in the case of a permanent resident who is inadmissible solely for contravening the residency obligation under IRPA s. 28, an officer may make a removal order (departure order). IRPA s. 44(2), Regulations s. 228(2).
Referral to the Immigration Division (ID) and issuance of a removal order by the ID: If the Minister believes the report is well-founded, the Minister may refer the report to the ID for an admissibility hearing: IRPA s. 44(2). Where the ID finds the person concerned to be inadmissible, the ID will issue the appropriate removal order (deportation order, exclusion order or departure order). IRPA s. 45, Regulations s. 229.
Right of appeal to the IAD: Subject to IRPA s. 64, there is a right to appeal a removal order to the IAD as set out in IRPA ss. 63(2) & (3).
Grounds for inadmissibility
Misrepresentation Directly or indirectly misrepresenting or withholding a material fact that could induce an error in the administration of the IRPA. IRPA s. 40 | Non-compliance with Act Failing to comply with the IRPA. Acts or omissions contravening the IRPA,
including failing to comply with the residency obligation (IRPA s. 28). IRPA s. 41 | Serious criminality and criminality Convictions in Canada, or convictions or criminal acts committed abroad which are equivalent to offences in Canada. IRPA s. 36
(possibly no right of appeal) |
Inadmissible family member: Foreign nationals may be inadmissible due to an inadmissible family member. IRPA s. 42.
Inadmissibility grounds with no right of appeal to IAD: Security, Human Rights or International Violations and Organized Criminality. IRPA ss. 34, 35 & 37.
Inadmissibility grounds rarely seen – Health grounds and Financial reasons. IRPA. ss. 38 & 39.
Right of appeal – IRPA s. 63(3): A permanent resident or a protected person may appeal to the IAD against a decision to make a removal order against them made by an officer under IRPA s. 44(2) or made by the ID at an admissibility hearing.
Right of appeal – IRPA s. 63(2): A foreign national who holds a valid permanent resident visa may appeal to the IAD against a decision to make a removal order against them made by an officer under IRPA s. 44(2) or made by the ID at an admissibility hearing.
No right of appeal – IRPA ss. 64(1) & (2): No appeal may be made to the IAD by a foreign national or permanent resident found inadmissible under IRPA ss. 34, 35 or 37. With respect to inadmissibility for serious criminality under IRPA s. 36(1), no appeal may be made to the IAD where the serious criminality is with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in IRPA s. 36(1)(b) or (c) (serious criminality outside of Canada).
Facts: Factual findings are generally made on a balance of probabilities, but factual findings under IRPA ss. 34 to 37 include facts for which there are reasonable grounds to believe have occurred, are occurring, or may occur. IRPA s. 33.
Onus: In removal order appeals, the onus is on the Minister to prove the alleged ground of inadmissibility if the legal validity of the removal order is contested (Yang, 2019 FC 1484). To obtain a favourable decision, it is also open to the appellant to prove that the removal order is not valid if contesting its validity (error by the decision-maker or a contravention of natural justice) or that the IAD should exercise its discretionary humanitarian and compassionate (H&C) jurisdiction in favour of the appellant. IRPA ss. 67(1) & 68(1).
H&C considerations: In exercising its discretionary H&C jurisdiction, the IAD taking into account the best interests of a child directly affected by the decision, must consider whether there are sufficient H&C considerations to warrant special relief in light of all the circumstances of the case. IRPA ss. 65, 67(1)(c) & 68(1).
Pre-condition to the ability to consider H&C considerations – IRPA S. 63(2) appeal: In an appeal under IRPA s. 63(2) respecting an application based on membership in the family class, the IAD may not consider H&C considerations unless it has decided that the appellant is a member of the family class and that their sponsor is a sponsor within the meaning of the Regulations. IRPA s. 65. (This determination is supposed to be made by the visa post. If not made, then the IAD must make the determination before it can exercise its H&C jurisdiction.)
H&C considerations in removal order appeals include:
- Nature and seriousness of the ground of inadmissibility leading to the issuance of the removal order
- Risk of recidivism and/or risk for future danger to the public
- Remorse shown by the appellant
- Possibility of rehabilitation or the circumstances surrounding the failure to meet the conditions of admission as a permanent resident
- Length of time spent, and the degree to which the appellant is established in Canada
- Family in Canada and the dislocation or hardship would there be to the appellant’s family if the appellant is removed from Canada
- Support available for the appellant not only within the family but also within the community
- Degree of hardship that would be caused to the appellant by the appellant’s return to their county of nationality (where the likely country of nationality has been established), or assess degree of hardship that would be caused to the appellant by the appellant’s removal from Canada (where the likely country of nationality has not been established)
- Best interests of any child directly affected by the decision (BIOC)
Decision: A removal order appeal may be allowed or dismissed, or the removal order may be stayed with conditions. IRPA ss. 66, 67, 68 & 69, Regulations s. 251.
Allowing an appeal: If the IAD allows an appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker (ID or immigration officer) for reconsideration. IRPA s. 67(2).
Stays: A removal order may be stayed for a period of time with mandatory and non-mandatory conditions. Prior to the IAD finally disposing a stayed removal order appeal by allowing or dismissing it, the stay may at any time be reconsidered and where there is a subsequent serious criminality conviction the stay is cancelled by operation of law and the appeal is terminated. Stays are primarily granted in appeals involving serious criminality. IRPA ss. 36(1) & 68, Regulations s. 251.
General provisions
Hearings: Hearings at the IAD are generally conducted in public, absent specific exceptions (e.g. refugee claimant, danger to the appellant or others, sexual offences where there could be non-publication/disclosure orders from a criminal court proceeding, young offender court issues): IRPA s. 166.
Designated representatives: Designated Representatives (DRs) are appointed if an appellant is a minor (under age 18) or unable, in the opinion of the IAD, to appreciate the nature of proceedings: IRPA, s. 167(2).
Impact of allowing an appeal: An officer, in examining a permanent resident or a foreign national, is bound by the decision of the IAD to allow an appeal in respect of the permanent resident or foreign national: IRPA s. 70(1).
Removal orders: There are three types of removal orders, namely, departure orders, exclusion orders and deportation orders: Regulations ss. 223 to 229.
Departure orders: Generally, a foreign national who is issued a departure order is exempt from the requirement to obtain an authorization in order to return to Canada under IRPA s. 52 (ARC), however, they must within 30 days after the order becomes enforceable leave Canada in accordance with the Regulations, failing which the departure order becomes a deportation order.
Exclusion orders: Generally, an exclusion order obliges the foreign national to obtain an ARC during the one-year period after the exclusion order was enforced, however, the period is five years where the exclusion order is made based on a finding of inadmissibility for misrepresentation.
Deportation orders: Generally, a deportation order obliges the foreign national to obtain an ARC in order to return to Canada at any time after the removal order was enforced.