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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