|
Canada’s Immigration and Refugee Protection Act (IRPA) allows specific groups of people to appeal to the IAD in order to: • ensure that prescribed groups of people ordered to be removed from Canada after an examination or admissibility hearing have had the benefit of a full hearing on the allegations against them. The Act recognizes an additional commitment to permanent residents, protected persons and foreign nationals who hold a permanent resident visa by allowing them to appeal their removal orders to the IAD, not only on the basis of legal and factual questions relating to the allegations at the admissibility hearing, but also on the basis that special consideration may be warranted; • ensure that the reunion in Canada of Canadians and permanent residents with their close relatives from abroad is facilitated by providing a review, by way of appeal, of refusals of sponsored applications for permanent residence from members of the family class; and • ensure that the rights of permanent residents are given due consideration by allowing an oral appeal to the IAD for loss of residency status determinations made both within and outside Canada. The right of appeal to the IAD is consistent with the objectives of IRPA in that it helps to accomplish the following: • ensure that families are reunited in Canada; and • protect the health and safety of Canadians and maintain the security of Canadian society. Notice of appeal To file an appeal to the IAD under IRPA, the sponsor must submit a notice of appeal and the officer’s written reasons for refusal to the IRB registry no later than 30 days after the appellant received the reasons for the refusal of the application [IAD rule 3(2)]. The IAD will provide the notice of appeal and written reasons for refusal to the C&I Minister immediately upon receipt of the documents. Filing evidence Documents must be filed with the IAD no later than 20 days before the hearing with a written statement saying how and when the documents were provided to the other party. Medical documents related to a refusal based on inadmissibility for health grounds must be filed no later than 60 days before the hearing. The earlier filing of medical documents is intended to provide sufficient time for parties to evaluate any new medical evidence in advance of the hearing and, consequently, to help prevent adjournments. Grounds for appeal An appeal to the IAD may be based on questions of law, fact, or mixed law and fact, or on the grounds that there are humanitarian and compassionate considerations that warrant granting special relief under its equitable jurisdiction. The definition of “humanitarian and compassionate considerations” in the text below elaborates on the IAD’s equitable jurisdiction. If the IAD determines that the applicant is not a member of the family class or that their sponsor is not a sponsor within the meaning of the Regulations, it cannot exercise its equitable jurisdiction to consider humanitarian and compassionate factors [A65]. Loss of appeal rights A64 specifies the circumstances under which a foreign national, a sponsor or a permanent resident loses their right of appeal. If a foreign national or permanent resident is determined by an officer or the Immigration Division to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, they do not have a right to appeal to the IAD. Serious criminality—Term of imprisonment of two years or more for a crime that was punished in Canada [A64(2)]. In order for the loss of appeal rights to apply on grounds of serious criminality, the person must have received a sentence of two years or more. In cases where there has been time served, i.e., pre-sentence custody, the officer must verify the credit given by the criminal court sentencing judge for the pre-sentence custody by reviewing the criminal court transcript. If there is no indication in the transcript of how the sentencing judge has credited the time served, each day of time served is credited as two days of a prison sentence. For example, if a person were sentenced to one year of imprisonment plus 183 days of time served, the183 days of time served would count as a 366-day sentence (2 x 183=366) plus the one-year sentence imposed for a total sentence of two years and one day. There is no appeal right because the total sentence exceeds two years. When calculating the total sentence imposed, it is imperative that the sentence be calculated to the day and not rounded off to the month as the repercussion of meeting the two-year threshold is the loss of a right of appeal. (R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, para. 44 and 45) A64(2) is not meant to include multiple, consecutive sentences. It refers to only a single sentence. Misrepresentation If a sponsored application for permanent residence is rejected based on a finding of inadmissibility on grounds of misrepresentation, there is no right of appeal. However, this provision does not apply if the foreign national is the sponsor’s spouse, common-law partner or child [A64(3)]. Family class sponsorship appeals When a sponsored application for permanent residence is refused, the sponsor must be informed of the reasons for the refusal and of the right of appeal to the IAD. If a Canadian citizen or permanent resident files an application to sponsor a foreign national as a member of the family class, and the application is refused, the sponsor may appeal the refusal of the application to the IAD [A63(1)]. There is no right of appeal to the IAD if the foreign national (applicant) is inadmissible on the following grounds [A64(1), (2) and (3)]: • security, violating human or international rights; • serious criminality with respect to a crime that was punished in Canada by a term of imprisonment of at least two years; • organized crime; or • misrepresentation (an exception applies to spouses, common-law partners and children). Removal order appeals The CBSA has the policy responsibility with respect to the issuance of removal orders and the Minister of PSEP is the respondent in removal order appeals. Persons who may appeal against removal orders Pursuant to A 63(2) and A63(3), permanent residents, foreign nationals who hold a permanent resident visa and protected persons, may appeal against a decision at an examination or an admissibility hearing, their removal order to the IAD . They may appeal not only on the basis of legal and factual questions, but also on the basis that there are humanitarian and compassionate considerations that warrant granting special relief. An appeal may be based on the grounds that the decision appealed is wrong in law, fact or mixed law and fact or that a principle of natural justice has not been observed or that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. [A 67] Humanitarian and compassionate considerations The IAD has an equitable jurisdiction, which allows it to consider factors that may warrant an appeal being allowed despite the fact the decision is valid in law. IRPA sets out the test to be applied by the IAD in order to allow a case for reasons of equity. Under IRPA, the test of equity, which the IAD is to apply, has been consolidated into one test for all types of appeals to the IAD by a party other than the Minister. A67(1)(c) states that the IAD must be satisfied that, at the time the appeal is disposed of “. . . taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case." The IAD will balance factors such as those set out below against the grounds for the removal order or refusal under appeal If it finds in favour of the appellant, it will set aside the decision. In the case of an appeal respecting an application based on membership in the family class, the IAD must first be satisfied that the foreign national is a member of the family class and the sponsor is a sponsor within the meaning of the Regulations before it can consider humanitarian and compassionate considerations [A65]. Factors to be considered by the IAD in appeals of removal orders include: • the seriousness of the offence leading to the removal order, where applicable; • the possibility of rehabilitation, where applicable; • the length of time spent in Canada and the degree to which the appellant is established here; • the family in Canada and the dislocation to the family that the deportation would cause; • the support available to the appellant, not only within the family but also within the community; • the degree of hardship that would be caused to the appellant by their return to their country of nationality, provided that the likely country of removal has been established by the appellant on a balance of probabilities. These factors have been established by the Immigration Appeal Commission in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL). The Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration, [2002] 1 S.C.R. 84 at paragraph 90, reaffirmed that “The factors set out in Ribic, [supra], remain the proper ones for the IAD to consider during an appeal...” [When considering an appeal of a family class sponsorship, some of the factors that may be considered by the IAD include: • whether authorizing the applicant to enter would result in the reunion in Canada of the appellant with close family; • the strength of the relationship between the applicant and the appellant; • the degree to which the applicant is established abroad; • whether an applicant has demonstrated the potential to adapt to Canadian society; • whether the parties to the application have obligations to one another based on their cultural background; • whether the applicant is alone in their country; • the availability of health services to the applicant in Canada and abroad (for refusals based on medical grounds); • whether there is evidence of rehabilitation or the risk of the applicant re-offending (for refusals based on criminal grounds). Loss of residency status appeals CIC has the policy responsibility with respect to loss of residency status and the Minister of C&I is the respondent in these appeals. In Canada Permanent residents who are determined by the Minister’s delegate to have lost their permanent resident status have the right to appeal their removal order against the Minister of C&I pursuant to A63(3). Persons in this category are subject to the same appeal provisions as permanent residents who are ordered removed on other grounds of inadmissibility. Outside Canada Pursuant to A63(4), permanent residents may appeal to the IAD, against the Minister of C&I, with respect to a decision made outside Canada on the residency obligation under A28. IAD rule 9 requires that: • the notice of appeal be filed with the IAD of the region in Canada where the appellant last resided; • the written reasons for the loss of status decision be filed with the notice of appeal; • if the appellant wants to return to Canada for the hearing of the appeal, they must indicate it on the notice of appeal; and • after they receive the written reasons for the decision, appellants have 60 days to file with the IAD a notice of appeal and the written reasons for the decision. Requests to return to Canada for the hearing A31(3)(c) provides that a permanent resident shall be issued a travel document if: • they were physically present in Canada at least once in the last 365 days; and • they have made an appeal under A63(4); or • the period for making an appeal has not expired. The situation will arise where permanent residents who do not meet the residency requirement request a travel document during the 60-day appeal period although they have not filed an appeal. Persons in this situation would be allowed to enter Canada during the 60-day appeal period even if they have not yet filed an appeal. In cases such as this, the port of entry will notify the hearings office. Hearings offices should monitor the file to determine if an appeal is filed. When an appeal is not filed within the 60-day period, the file should be referred to the CBSA for investigation. When an appellant is not eligible for a travel document under A31(3)(c), they must make an application to the IAD requesting to return to Canada for their hearing [IAD rule 46(1)]. Applications must be filed with the IAD and the Minister no later than 60 days after the notice of appeal is filed. If the IAD is satisfied the presence of the permanent resident at the hearing is necessary, it will order that the permanent resident physically appear at the hearing. Where the IAD has ordered that the appellant be physically present, an officer shall issue a travel document for that purpose [A175(2)]. References:
|
Immigration Blog Visit us on Facebook Mbmigration Twitter Channel Watch us on Youtube |
|