Removal of Permanent Residents from Canada at the Immigration Appeal Division.

Removal of Permanent Residents from Canada at the Immigration Appeal Division.

In immigration law terms, there are three (3) categories of individuals: (a) Canadian Citizens; (b) Permanent Residents; and (c) Foreign Nationals.  The Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA’”), applies only to Permanent Residents, foreign nationals and other individuals and business that are seeking legal entry into Canada.  This section will only deal with the term inadmissibility.  This is a term of art within the sphere of Canadian Immigration Law.  There are various policy objectives outlined in the IRPA and its animating sections. Those sections embrace the concerns of protecting the dominion of Canada and Canadian society from persons who (may) present danger to society or who might otherwise impose a heavy burden on social services.  Policy goals have been implemented in Canada to reach those objectives.  Within the scope of defence law the characterization and label of inadmissibility is critical for those seeking entry into Canada.  This is because individuals (persons) who seek to become permanent residents of Canada are not permitted to enter Canada as permanent residents without special permission is granted by an Immigration Officer who issues a temporary resident permit pursuant to Section 24 of the IRPA. Moreover, a finding of inadmissibility made in connection with a person residing within Canada will have a removal order issued against them unless an application is made to persuade an immigration officer to not issue a section 44 IPRA report.

Removal of Permanent Residents from Canada at the Immigration Appeal Division.

As stated by Canada Citizenship and Immigration, a permanent resident of Canada, a refugee, or a foreign national with a permanent resident visa who has been ordered removed from Canada, may appeal to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (IRB).  A person may not appeal if he or she has been found to be inadmissible to Canada because of (a) serious criminal offence punished in Canada by a term of imprisonment of at least six (6) months; (b) involvement in organized crime; (c) security grounds; or (d) violations of human or international rights.   As stated above, the IPRA craves our specific appeal rights for permanent residents of Canada and (depending on the nature of the inadmissibility) for sponsors. Such individuals, arguably, have a ‘right of appeal’ to the Immigration Appeal Division (the “IAD”) of the Immigration and Refugee Protection Board.    Moreover, decisions concerning overseas sponsorships and decisions taking away permanent resident status (i.e. failure of comply with Residency obligations under section 28 of the IPRA) can be appealed to the IAD.  Sponsorships refused on grounds of inadmissibility, eligibility or bona fides of a relationship can all be appealed to the IAD. Similarly, permanent residents who are issued removal orders on the grounds of criminality, misrepresentation and failure to meet the residency requirements can also appeal to the IAD.

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The person must appeal within thirty (30) days of receiving the removal order from the Immigration Division (ID) or the Canada Border Services Agency (CBSA). In most cases, a member (decision-maker) will hear the appeal according to the IRB tribunal process. The appeal process involves two parties: the appellant and Minister’s counsel who represents the CBSA. It is also usually public, so media or members of the public may attend or report on the proceedings.  At this hearing, it is advisable to retain a defence lawyer who is familiar with the various relevant factors that may be marshalled to your avail.  The statutory provision for the determination of discretionary relief in removal order appeals under IRPA is different than the provisions in the former Immigration Act. Whereas in the former legislation, depending on the person’s status, the test was either “all the circumstances of the case” or “compassionate or humanitarian considerations”, in IRPA, those two tests have been merged. The wording in paragraph 67(1)(c), subsection 68(1) and subsection 69(2) of IRPA tasks the IAD member with determining whether “sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. In addition, the concept of “the best interests of a child directly affected by a decision” has been incorporated into the legislation.

These factors are outlined in the following cases:  Ribic, Marida v. M.E.I. (IAB 84-9623), D. Davey, Benedetti, Petryshyn, August 20, 1985, Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, and Al Sagban v. Canada (Minister of Citizenship and Immigration), 2002 SCC 4.  In the Ribic case, the Immigration Appeal Board set out factors to be consideredin the exercise of its discretionary discretion. These factors were as follows: (a) the seriousness of the offence or offences leading to the removal order; (b) the possibility of rehabilitation or, alternatively, the circumstances surrounding the failure to meet the conditions of admission; (c) the length of time spent, and the degree to which the appellant is established in, Canada; (d) the family in Canada and the dislocation to the family that removal would cause; (e) the family and community support available to the appellant; and (f) the degree of hardship that would be caused to the appellant by the appellant’s return to his or her country of nationality.

These factors are not exhaustive and the way they are applied and the weight they are given may vary according to the particular circumstances of the case. The SCC in Khosa cited with approval the IAD’s acknowledgement of the non-exhaustive nature of the factors and that the weight to be attributed to the factors will vary from case to case.

Instead of deciding to allow or dismiss the appeal, in many cases, the IAD may decide to stay the removal order. This means that, temporarily, it will not be carried out. The IAD will reconsider the appeal later, at a time set by the member hearing the appeal. If there is a stay, the person must also meet certain conditions, such as reporting regularly to a CBSA office. The IAD may, at any time, change the conditions or cancel the stay. If the IAD cancels the stay, it will then decide to either allow or dismiss the appeal.

There are various possible outcomes that maybe achieved by a defence lawyer.  If the appeal is allowed, the removal order is set aside and the person concerned may remain in Canada. If the appeal is dismissed, the removal order will be upheld and the CBSA could remove the person from Canada. Certain steps will be taken by CBSA to effect your immediate removal pursuant to Section 50 of the IRPA; and there are a number of corresponding steps that a person can take to challenge the basis of the removal in the Federal Court of Canada through an application for Leave and Judicial Removal (the “JR Application”) along with a motion for a stay of removal until your JR Application is finally decided.    Either the appellant or Minister’s counsel may apply to the Federal Court of Canada for leave, or permission, for judicial review of any IRB decision. The Federal Court of Canada will either dismiss the application or return the case to the IAD for re-hearing.  This discussed in greater detail below.

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Other Types of Immigration Decisions: Humanitarian and Compassionate Grounds Applications, Pre-Removal Risk Assessments (PRRAs), Decisions of the Refugee Protection Division of the IAD, and Skilled Worker Applications

For the type of decisions stated above, it is critical to file an application for leave and judicial review against the negative decision within the time frame prescribed by the IRPA and the Rules of the Federal Court.  The deadlines are strictly enforced by the Federal Court.  It is imperative that you consult with an immigration defence lawyer immediately.  By way of general legal information, the deadline to file a Federal Court JR Application is fifteen (15) days of having been notified of a decision that was made within Canada. For decisions made by Canadian Immigration authorities outside of Canada, the deadline to file the Federal Court JR Application is sixty (60) days from the notification of the decision to refuse your application, such as temporary resident permits.  Filing the application does not necessarily by operation of law prevent the Canada Border Service Agency (“CBSA”) from proceeding with the indexed removal. In the case of a challenge levied against a negative refugee decision, general no steps will be taken by the CBSA.  However, in most other cases, a Motion for a Stay of Removal must be filed and successful argued before the Federal Court, on an emergency basis, to legally stop CBSA from proceeding with removal proceedings.   These are time sensitive and heavily contested applications.

If you are facing removal, a consultation concerning these matters by contacting Mr. J. S. Patel, Barrister at 403-585-1960 or 1-888-695-2211 (if calling from outside Calgary or Toronto).

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