Deportation Appeals

Under the IRPA, CBSA may order some people to be removed from Canada. The Immigration Division can also order people to be removed as a result of an admissibility hearing.

Some foreign nationals with permanent resident visas, permanent residents and protected persons who have removal orders issued against them can appeal to the Immigration Appeal Division of the IRB. They may argue that the deportation order should be cancelled if they believe an officer or the Immigration Division made a legal error or they believe there are humanitarian and compassionate grounds for them to stay in Canada.

However, a person has no right to 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 two years or more
• involvement in organized crime
• security concerns
• violations of human or international rights
• misrepresentation except in cases where the person is the sponsor’s spouse, common-law partner or child.

The removal order must be appealed within 30 days of receiving it from the Immigration Division or the Canadian Border Services Agency. In most cases, the member will hear the appeal as per the IRB tribunal process.

The appeal process is adversarial and involves the person appealing the deportation order, known as the appellant, and the Minister’s counsel who represents CSBA. These appeals are open to the public, so members of the media or public may observe or report on the proceedings.

The IAD will take into account all the circumstances of the case in deciding whether the person should be allowed to stay in Canada, despite breaching the terms of their status. The IAD might consider factors such as their ties to Canada, the circumstances of the breach, family in Canada etc.

If the IAD allows the appeal, the removal order is set aside and the person may remain in Canada. If the appeal is denied, the removal order is upheld and CBSA may proceed with the removal.

Often times, instead of allowing or dismissing the appeal, the IAD may decide to stay the removal order, which means the removal will be temporarily postponed for a certain period. The IAD may hear the appeal at a later time for reconsideration. During the period of the stay, if you are convicted of a serious criminal offence, the stay is automatically cancelled and the removal order restored.

The IAD might impose certain conditions when granting a stay of removal. For instance, it might order the appellant to report regularly to CBSA offices or to inform the CBSA and IAD in writing of any change in address.

If at the end of that period, the person has obeyed the conditions imposed by the IAD, the IAD might cancel the removal order. If the conditions have not been met, the CBSA may apply to have the stay cancelled and then continue with the removal proceedings.

Either party can then apply to the Federal Court of Canada for permission for judicial review of the IAD decision. The Federal Court may dismiss the leave application or return the case to the IAD for re-hearing.