Fact Sheet

Date issued: July 2009
Last reviewed: June 2013

Appeals of removal orders

Snapshot

As part of its enforcement of the Immigration and Refugee Protection Act (IRPA), the Canada Border Services Agency (CBSA) may refuse to admit persons seeking to enter Canada and may order the removal of persons who have breached IRPA. In some cases, the Immigration Division of the Immigration and Refugee Board of Canada (IRB) can order persons who are in violation of IRPA to be removed. In certain cases, these removal orders may be appealed to the Immigration Appeal Division of the IRB.

Who is responsible?

The CBSA hearings officers represent the Minister of Public Safety at removal order appeal hearings before the IRB's Immigration Appeal Division. The IRB is an independent tribunal and its members are trained in immigration law. The Federal Court may review the Immigration Appeal Division's determinations.

Who can appeal to the Immigration Appeal Division?

IRPA allows certain persons to appeal removal orders made by CBSA officers or by members of the IRB's Immigration Division. The following persons can appeal to the IRB's Immigration Appeal Division:

• Permanent residents — persons who have acquired permanent resident status in Canada and have not lost that status.
• Permanent resident visa holders — foreign nationals who hold permanent resident visas and are denied entry upon first arriving in Canada.
• Protected persons — persons who are found to be in need of Canada's protection.

Normally persons will not be removed from Canada until their appeal has been decided. If they have been removed from Canada, they may be permitted to return to attend their appeal hearing.

Loss of right of appeal

In certain situations, foreign nationals and permanent residents do not have a right to appeal. Persons may lose their appeal rights if a CBSA officer or a member of the Immigration Division determines that they are security threats or war criminals, or that they have committed crimes against humanity, were involved in organized crime or are serious criminals. A serious criminal is a person who has been convicted of a crime in Canada that may be punishable by at least 10 years in prison and for which a sentence of at least two years is given.

Reasons for an appeal

Persons who have been issued a removal order may appeal it if they believe that any of the following circumstances applies:

• The decision of the CBSA officer or the Immigration Division member to issue the removal order was wrong in law, fact or both law and fact;
• There was a failure to observe a principle of natural justice; or
• They believe that they should not be removed from Canada on humanitarian or compassionate grounds.

The CBSA, on behalf of the Minister of Public Safety, may appeal a decision of the Immigration Division only on the basis that the decision was wrong in law, fact or both law and fact, or if there was a failure to observe a principle of natural justice.

Who hears the appeal?

Members of the Immigration Appeal Division hear appeals. The CBSA hearings officers represent the Minister of Public Safety at removal order appeal hearings. The hearings are held in public and operate much like a regular court. However, rules of evidence are more flexible and Division members can consider any evidence they believe is credible and trustworthy.

Results of an appeal

The Immigration Appeal Division can take one of three actions following an appeal hearing:

• Dismiss the appeal — the appeal is rejected and the removal order is confirmed.
• Allow the appeal — the appeal is successful and the removal order is cancelled.
• Stay the removal order — the removal order is postponed for a certain period of time under certain terms and conditions.

The Immigration Appeal Division will impose the following mandatory terms and conditions when granting a stay of removal (other terms and conditions may also be imposed):

• The person concerned must inform the CBSA and the Immigration Appeal Division in writing of any change of address;
• The person must provide a copy of his or her passport or travel document (if he or she does not have a proper travel document or it has become invalid, he or she will have to apply for or extend his or her travel document or passport);
• The person must not commit any criminal offences; and
• The person must report immediately in writing to the CBSA if he or she is charged or convicted of a criminal offence.

If, at the end of the period of the stay, the person has complied with the terms and conditions, the Immigration Appeal Division may allow the appeal and cancel the removal order. If the terms and conditions have not been met, the CBSA can apply to have the stay cancelled and the appeal dismissed. Once the appeal is dismissed, the CBSA will carry out the removal order.

Review by the Federal Court

Both the person concerned and the Minister of Public Safety may apply to the Federal Court for a review of an Immigration Appeal Division decision. They must first obtain permission (leave) of the Federal Court to make the request for review. If the Federal Court grants permission, it will then review the request and dismiss it or set aside the Division's original decision and order a new appeal hearing.

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