Immigration and Refugee Board (18:VII)

From Clicklaw Wikibooks
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 10, 2020.

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.

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 his or her detention review hearing (see IRPA, s 55 and IRP Regulations 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 admissibility hearings 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.

The 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. Also, 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 because there are 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 s.110, the IRPA provision that actually permits an appeal to be made to the RAD, only some refugee claimants will have access to RAD. All claimants will have 15 days to submit an appeal to RAD. The appeal will largely be paper-based; hearings will be held only in exceptional cases.

© Copyright 2020, The Greater Vancouver Law Students' Legal Advice Society.

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