The Immigration and Refugee Protection Act (IRPA) sets out the circumstances under which a permanent resident or foreign national may appeal a removal order that is
issued against them. IRPA also sets out the appeal rights of the Minister in the event the Immigration Division (ID) refuses to issue a removal order at the end of an admissibility
hearing.
Right to Appeal
In practice, the bulk of the caseload of removal order appeals at the IAD involves permanent residents as the right to appeal differs depending on whether the person
against whom the removal order is made is a permanent resident or foreign national. While all permanent residents have a right to appeal to the IAD from the issuance of a
removal order, subject to certain limitations found in sections 64 and 65, the right of foreign nationals to appeal the issuance of a removal order is considerably limited. The
Minister also has a right to appeal when the ID does not issue a removal order at the end of an admissibility hearing.
Foreign Nationals
There are two sections of IRPA under which a foreign national may have a right to appeal from the issuance of removal order. These sections extend appeal rights to
foreign nationals who hold a permanent resident visa and foreign nationals who are protected persons. However, the scope of the appeal rights is limited by sections 64 and
65 of IRPA. An appeal to the IAD by a foreign national may be from a decision of the ID to issue a removal order after an admissibility hearing or from a decision of an immigration
officer to issue a removal order. It will depend on whether it is the Minister or the ID who has jurisdiction to issue the removal order in the given case. In most cases, it will be
the ID issuing the removal order which forms the basis of the appeal as the Minister’s jurisdiction is limited to issuing a removal order in the circumstances enumerated in
subsection 228(1) of the Immigration and Refugee Protection Regulations (IRPR).
Foreign nationals who hold a permanent resident visa
Pursuant to subsection 63(2) of IRPA, foreign nationals who hold a permanent resident visa may appeal to the IAD from the issuance of a removal order.
Protected Persons
The second way in which a foreign national may appeal the issuance of a removal order is pursuant to subsection 63(3) of IRPA. It stipulates that:
63(3) A permanent resident or a protected person may appeal to
the Immigration Appeal Division against a decision at an
examination or admissibility hearing to make a removal order
against them.
Therefore, if the foreign national against whom a removal order is issued is a protected person as defined in section 95 of IRPA, they have an appeal to the IAD. Pursuant to section 95, a protected person is a person whom has been determined to be a Convention refugee under a visa application, a person whom the Board has determined to be a Convention refugee or a person in need of protection, or a person whose application for protection has been allowed by the Minister. Further, the person must not have had that status subsequently vacated. In order to have jurisdiction to hear an appeal of a foreign national under this section, the IAD will need to be satisfied that the person is, in fact, a protected person.
Permanent Residents
Pursuant to subsection 63(3) of IRPA, all permanent residents have a right to appeal the issuance of a removal order made against them. This will always be an appeal from the decision of the ID, except in cases where the sole allegation is that the permanent resident failed to comply with the residency obligation. In those cases, the Minister may make the appropriate removal order directly without referring the case for an admissibility hearing before the ID and the appeal, therefore, would be directly from the Minister’s decision to issue the removal order.
Minister’s Appeal
If the Minister refers a section 44 report to the ID for an admissibility hearing and the ID does not issue a removal order against the subject of the proceedings, the Minister
may appeal that decision to the IAD pursuant to subsection 63(5) of IRPA. Subsection 63(5) reads as follows:
63(5) The Minister may appeal to the Immigration Appeal
Division against a decision of the Immigration Division in an
admissibility hearing.
Unlike appeals by a foreign national or permanent resident where the Minister or the ID would have already issued a removal order, in appeals by the Minister the IAD
will need to issue a removal order pursuant to subsection 67(2) of IRPA if it allows the appeal or orders a stay and it does not refer the decision back to the original decision maker
for reconsideration.
Please consult an immigration lawyer as every case is unique and should be assessed by a lawyer. CONTACT ME FOR LEGAL ADVICE 647 724-3657
