Immigration and Refugee Board (18:VII): Difference between revisions
Desy Wahyuni (talk | contribs) |
No edit summary |
||
| (20 intermediate revisions by 4 users not shown) | |||
| Line 1: | Line 1: | ||
{{REVIEWED LSLAP | date= August 5, 2024}} | |||
{{LSLAP Manual TOC|expanded = immigration}} | {{LSLAP Manual TOC|expanded = immigration}} | ||
The Immigration and Refugee Board (the “IRB”) is made up of four tribunals with distinct jurisdictions. In Vancouver, the active divisions of the IRB are located at 300 West Georgia Street, Vancouver, British Columbia on the 16th, 17th and 18th floors. | The Immigration and Refugee Board of Canada (the “IRB”) is made up of four tribunals with distinct jurisdictions. In Vancouver, the active divisions of the IRB are located at 300 West Georgia Street, Vancouver, British Columbia on the 16th, 17th and 18th floors. | ||
== A. Immigration Division == | == A. Immigration Division == | ||
| Line 9: | Line 10: | ||
=== 1. Detention Reviews === | === 1. Detention Reviews === | ||
If a foreign national or permanent resident is “detained” under the IRPA, that person is entitled to a detention review before the Immigration Division. The adjudicator is called the “Presiding Member,” and a CSBA officer called “Minister’s Counsel” (representing the Minister for Public Safety) presents the case to detain the person concerned, unless an alternative to detention exists. | If a foreign national or permanent resident is “detained” under the ''IRPA'', that person is entitled to a detention review before the Immigration Division. The adjudicator is called the “Presiding Member,” and a CSBA officer called “Minister’s Counsel” (representing the Minister for Public Safety) presents the case to detain the person concerned, unless an alternative to detention exists. | ||
A person arrested under the IRPA provisions is entitled to a detention review within 48 hours after arrest, or as soon as practicable. If the person is ordered detained, he or she receives another detention review in 7 days, then again in 30 days, then again every 30 days thereafter until he or she is either removed or released. | A person arrested under the ''IRPA'' provisions is entitled to a detention review within 48 hours after arrest, or as soon as practicable. If the person is ordered detained, he or she receives another detention review in 7 days, then again in 30 days, then again every 30 days thereafter until he or she is either removed or released. | ||
To keep a person in detention, the onus is on the Minister to prove that there are reasonable grounds to believe that the detainee’s identity cannot be ascertained, and that the detainee is either a danger, or unlikely to appear for | To keep a person in detention, the onus is on the Minister to prove that there are reasonable grounds to believe that the detainee’s identity cannot be ascertained, and that the detainee is either a danger, or unlikely to appear for their detention review hearing (see ''IRPA'', s 55 and ''IRP Regulations'' ss 244 to 250). | ||
=== 2. Admissibility Hearings === | === 2. Admissibility Hearings === | ||
If an immigration officer alleges a foreign national or permanent resident of Canada is “inadmissible” under a provision of the IRPA, the Immigration Division conducts admissibility | If an immigration officer alleges a foreign national or permanent resident of Canada is “inadmissible” under a provision of the IRPA, the Immigration Division conducts an admissibility hearing to determine whether or not the allegation is founded. | ||
:'''NOTE:''' There are exceptions where an immigration officer can determine inadmissibility without redress to the Immigration Division. For inadmissibility provisions, please refer to Division 4 of the IRPA. | :'''NOTE:''' There are exceptions where an immigration officer can determine inadmissibility without redress to the Immigration Division. For inadmissibility provisions, please refer to Division 4 of the IRPA. | ||
These hearings are conducted as adversarial tribunals. Persons subject to such a hearing may represent themselves, or they may choose to retain counsel. It is always preferable for such persons to retain counsel. | |||
If a person is found inadmissible, a removal order will be issued. A determination of inadmissibility can be appealed to the Immigration Appeal Division | If a person is found inadmissible, a removal order will be issued. A determination of inadmissibility can be appealed to the Immigration Appeal Division in certain cases. The Minister can also appeal in some circumstances. Only permanent residents or Convention refugees can appeal, with very few exceptions. Foreign nationals who are not Convention refugees, generally, cannot appeal the removal order to the IAD, but can apply for judicial review or a stay from Federal Court. | ||
== B. Immigration Appeal Division == | == B. Immigration Appeal Division == | ||
The Immigration Appeal Division (“IAD”) hears appeals from the Immigration Division, and some decisions from visa officers and immigration officers. The three most common types of appeals are as follows: | The Immigration Appeal Division (“IAD”) hears appeals from the Immigration Division, and some decisions from visa officers and immigration officers. The three most common types of appeals are as follows: | ||
The IAD is a court of competent jurisdiction. Charter issues can be raised. | :(a) permanent residents who have been determined inadmissible by the Immigration Division for serious criminality; | ||
:(b) Canadian citizens or permanent residents appealing a negative decision on a sponsorship application under the family class; and | |||
:(c) permanent residents determined inadmissible for not having met the “residency requirements”. | |||
The IAD is a court of competent jurisdiction. Charter issues can be raised. The IAD, in most circumstances, can deal with issues of equity. For example, if a permanent resident is “lawfully” determined inadmissible by the Immigration Division for having committed criminal acts in Canada and lawfully given a deportation order, the IAD can allow an appeal on sufficient “humanitarian and compassionate” grounds warranting relief. [[Immigration_Appeals_(18:XI)|See Section XI: Appeals]]. | |||
== C. Refugee Protection Division == | == C. Refugee Protection Division == | ||
| Line 37: | Line 42: | ||
== D. Refugee Appeal Division == | == D. Refugee Appeal Division == | ||
The Refugee Appeal Division (“RAD”) is an appeal division for some failed Convention refugee claimants, established by the IRPA. Under s | The Refugee Appeal Division (“RAD”) is an appeal division for some failed Convention refugee claimants, established by the ''IRPA''. Under ''IRPA'' s 110, only some refugee claimants have access to RAD. Designated foreign nationals, those whose claims are deemed to be “manifestly unfounded” or to have “no credible basis” and those whose claims are considered under an exception to the Safe Third Country agreement have no right of appeal to the RAD. All other claimants have 15 days after receiving written notice to submit an appeal to RAD. The appeal is largely be paper-based; hearings are only held in exceptional cases. | ||
{{LSLAP Manual Navbox|type=chapters15-23}} | |||
Latest revision as of 17:29, 7 August 2024
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 5, 2024. |
The Immigration and Refugee Board of Canada (the “IRB”) is made up of four tribunals with distinct jurisdictions. In Vancouver, the active divisions of the IRB are located at 300 West Georgia Street, Vancouver, British Columbia on the 16th, 17th and 18th floors.
A. Immigration Division
The Immigration Division deals with (i) detention reviews and (ii) admissibility hearings.
1. Detention Reviews
If a foreign national or permanent resident is “detained” under the IRPA, that person is entitled to a detention review before the Immigration Division. The adjudicator is called the “Presiding Member,” and a CSBA officer called “Minister’s Counsel” (representing the Minister for Public Safety) presents the case to detain the person concerned, unless an alternative to detention exists.
A person arrested under the IRPA provisions is entitled to a detention review within 48 hours after arrest, or as soon as practicable. If the person is ordered detained, he or she receives another detention review in 7 days, then again in 30 days, then again every 30 days thereafter until he or she is either removed or released.
To keep a person in detention, the onus is on the Minister to prove that there are reasonable grounds to believe that the detainee’s identity cannot be ascertained, and that the detainee is either a danger, or unlikely to appear for their detention review hearing (see IRPA, s 55 and IRP Regulations ss 244 to 250).
2. Admissibility Hearings
If an immigration officer alleges a foreign national or permanent resident of Canada is “inadmissible” under a provision of the IRPA, the Immigration Division conducts an admissibility hearing to determine whether or not the allegation is founded.
- NOTE: There are exceptions where an immigration officer can determine inadmissibility without redress to the Immigration Division. For inadmissibility provisions, please refer to Division 4 of the IRPA.
These hearings are conducted as adversarial tribunals. Persons subject to such a hearing may represent themselves, or they may choose to retain counsel. It is always preferable for such persons to retain counsel.
If a person is found inadmissible, a removal order will be issued. A determination of inadmissibility can be appealed to the Immigration Appeal Division in certain cases. The Minister can also appeal in some circumstances. Only permanent residents or Convention refugees can appeal, with very few exceptions. Foreign nationals who are not Convention refugees, generally, cannot appeal the removal order to the IAD, but can apply for judicial review or a stay from Federal Court.
B. Immigration Appeal Division
The Immigration Appeal Division (“IAD”) hears appeals from the Immigration Division, and some decisions from visa officers and immigration officers. The three most common types of appeals are as follows:
- (a) permanent residents who have been determined inadmissible by the Immigration Division for serious criminality;
- (b) Canadian citizens or permanent residents appealing a negative decision on a sponsorship application under the family class; and
- (c) permanent residents determined inadmissible for not having met the “residency requirements”.
The IAD is a court of competent jurisdiction. Charter issues can be raised. The IAD, in most circumstances, can deal with issues of equity. For example, if a permanent resident is “lawfully” determined inadmissible by the Immigration Division for having committed criminal acts in Canada and lawfully given a deportation order, the IAD can allow an appeal on sufficient “humanitarian and compassionate” grounds warranting relief. See Section XI: Appeals.
C. Refugee Protection Division
The Refugee Protection Division (“RPD”) deals exclusively with determining claims for Convention refugee protection. The RPD also deals to a lesser extent with “vacation hearings,” i.e. hearings where an allegation is made that Convention refugee protection should be taken away from someone.
D. Refugee Appeal Division
The Refugee Appeal Division (“RAD”) is an appeal division for some failed Convention refugee claimants, established by the IRPA. Under IRPA s 110, only some refugee claimants have access to RAD. Designated foreign nationals, those whose claims are deemed to be “manifestly unfounded” or to have “no credible basis” and those whose claims are considered under an exception to the Safe Third Country agreement have no right of appeal to the RAD. All other claimants have 15 days after receiving written notice to submit an appeal to RAD. The appeal is largely be paper-based; hearings are only held in exceptional cases.
| © Copyright 2024, The Greater Vancouver Law Students' Legal Advice Society. |