(a) the foreign national has reasonably cooperated with the Minister by providing relevant information for the purpose of establishing the foreign national's identity and

      (i) the identity has been established, or

      (ii) it is not possible to establish the identity despite the reasonable efforts of the Minister; or

    (b) the Minister has not made reasonable efforts to establish the identity of the foreign national.

Retaking into custody

(4) On application by the Minister, the Immigration Division may order a foreign national who was released to be retaken into custody and held in detention if it is satisfied that the foreign national poses a danger to the public or will not appear for an examination, admissibility hearing or removal.

Incarcerated foreign nationals

54. If a warrant has been issued under section 51 with respect to an foreign national who is detained in an institution, the person in charge of the institution shall deliver the inmate to a designated officer at the end of their period of detention.

Regulations

55. Regulations may be made providing for the application of this Division, and may include provisions respecting

    (a) conditions that may be imposed on, and grounds for and criteria with respect to, the release of persons from detention;

    (b) factors to be considered by a designated officer or the Immigration Division for the purposes of sections 51 and 53; and

    (c) special considerations that may apply in relation to the detention of minor children;

DIVISION 7

RIGHT OF APPEAL

Right of appeal

56. (1) A person who has filed an undertaking in the prescribed manner to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the visa required by the foreign national in order to enter and remain in Canada as a permanent resident.

Appeal of removal order

(2) A foreign national who holds a valid permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order.

Right of appeal from removal order

(3) A permanent resident or foreign national who has been protected as a refugee under this Act may appeal to the Immigration Appeal Division against a decision to make a removal order.

Residency requirement

(4) A foreign national may appeal to the Immigration Appeal Division against a decision that they failed to meet the requirements of section 24 and that humanitarian and compassionate considerations do not justify their retention of permanent resident status.

Grounds of appeal

57. An appeal under section 56 may be based on a question of law, of fact or of mixed law and fact, or on humanitarian and compassionate considerations.

Appeal

58. (1) An appeal under subsection 56(1) or (2) respecting an application based on membership in the family class may not be heard on humanitarian and compassionate considerations unless the Immigration Appeal Division has decided that the foreign national is a member of the family class and the foreign national's sponsor is a sponsor within the meaning of the regulations.

Procedure

(2) Despite paragraph 161(1)(a), the Immigration Appeal Division shall proceed in the appeal based only on the considerations referred to in subsection 56(4) without a hearing, shall base its decision on the record of the decision by the designated officer, and may accept written submissions.

No appeal

59. (1) No appeal may be made to the Immigration Appeal Division of a decision referred to in section 56 by the foreign national or their sponsor if the foreign national has been found to be inadmissible on considerations of security, violating human rights, serious criminality or organized criminality.

Misrepresen-
tation

(2) No appeal may be made to the Immigration Appeal Division of a decision referred to in subsection 56(1) that was based on a finding of inadmissibility on the ground of misrepresentation, except in respect of a sponsor's spouse, common-law partner or child.

Serious crime committed in Canada

(3) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.

Appeal by Minister

60. The Minister may appeal a decision of the Immigration Division in an admissibility hearing based on a question of law, of fact or of mixed law and fact.

Disposition of appeals

61. (1) The Immigration Appeal Division may allow an appeal of a decision if satisfied

    (a) in the case of an appeal based on a question of law or fact or mixed law and fact, that the decision is wrong when the appeal is disposed of or that a principle of natural justice has not been observed; or

    (b) in the case of an appeal based on humanitarian and compassionate considerations, that sufficient humanitarian and compassionate considerations exist at the time that the appeal is disposed of that, in light of all the circumstances of the case, warrant special relief.

Children

(2) In making a decision, the Immigration Appeal Division must take into account the best interests of a child directly affected by it.

Effect of decision to allow appeal

(3) If the Immigration Appeal Division allows an appeal, the decision that was appealed against is quashed and

    (a) in the case of a decision referred to in subsection 56(1) or (2), the Division shall send the matter back for reconsideration; or

    (b) in the case of a decision referred to in subsection 56(3) or (4) or section 60, the Division shall substitute the decision that it is satisfied ought to be made and may make the applicable removal order.

Other powers

(4) The Immigration Appeal Division may also dismiss the appeal or

    (a) order a stay of a removal order that was issued against a foreign national, attaching the prescribed conditions, if any, and any other conditions that it considers necessary; or

    (b) cancel a stay of a removal order, on application or on its own initiative, and

      (i) dismiss the appeal and confirm the removal order, or

      (ii) allow the appeal and quash the removal order.

Decision binding

62. A designated officer, in examining a foreign national, must apply a decision of the Immigration Appeal Division to allow an appeal under subsection 56(1) or (2) in respect of the foreign national.

Examination suspended

63. If the Minister makes an application for leave to commence an application for judicial review of a decision of the Immigration Appeal Division with respect to a foreign national, an examination of the foreign national under this Act is suspended until the final determination of the application.

Cancellation of stay

64. The stay of a removal order that was made against a person who was found inadmissible on grounds of criminality or serious criminality is cancelled by operation of law, and the removal order becomes enforceable, if that person is convicted of another offence referred to in subsection 32(1).

Reopening appeal

65. The Immigration Appeal Division, on application by a foreign national who has not left Canada under a removal order, may reopen an appeal described in section 56 if it is satisfied, based on the record, that it failed to observe a principle of natural justice.

DIVISION 8

JUDICIAL REVIEW

Application for judicial review

66. (1) Judicial review by the Federal Court with respect to any matter, decision, determination or order made, measure taken or question raised under this Act is commenced by making an application for leave to the Court.

Limit

(2) The application may not be made until any right of appeal that may be provided by this Act is exhausted.

Application for leave

(3) An application under this section for leave to commence an application for judicial review is subject to the following rules:

    (a) the application shall be filed in the Registry of the Federal Court - Trial Division (``the Court'');

    (b) notice of the application shall be served on the other party within 15 days after the day on which the applicant is notified of the decision or order or becomes aware of the measure or question;

    (c) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice;

    (d) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance; and

    (e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.

Right of Minister

67. The Minister may make an application for leave to commence an application for judicial review with respect to any decision of the Refugee Appeal Division, whether or not the Minister took part in the proceedings before the Refugee Protection Division or Refugee Appeal Division.

Judicial review

68. Judicial review is subject to the following rules:

    (a) the judge who granted leave under subsection 66(2) shall fix the day and place for the hearing of the application;

    (b) the hearing shall be no sooner than 30 days and no later than 90 days after leave was granted, unless the parties agree to an earlier day;

    (c) the judge shall dispose of the application without delay and in a summary way; and

    (d) an appeal to the Federal Court of Appeal may be made only if the judge certifies in rendering judgment that a serious question of general importance is involved and has stated the question.

Rules

69. (1) Subject to the approval of the Governor in Council, the Chief Justice of the Federal Court may make rules governing the practice and procedure in relation to applications for leave to commence an application for judicial review, for judicial review and for appeal. The rules are binding despite any rule or practice that would otherwise apply.

Inconsis-
tencies

(2) In the event of an inconsistency between this Division and any provision of the Federal Court Act, this Division prevails to the extent of the inconsistency.

DIVISION 9

PROTECTION OF INFORMATION

Examination on Request by the Minister and the Solicitor General

Meaning of ``information' '

70. In sections 71 to 81, ``information'' means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of either of them.

Certificate stating risk

71. (1) The Minister and the Solicitor General of Canada may sign a certificate stating that a foreign national is inadmissible on grounds of security, violating human rights, serious criminality or organized criminality and refer it to the Federal Court - Trial Division which shall determine whether the certificate should be quashed.

Effect of request to Federal Court

(2) When the certificate is referred, any proceeding under this Act in respect of the foreign national to whom the certificate relates shall not be commenced, or if commenced shall be adjourned, until the judge makes the determination.

Judicial consideration of certificate

72. The following rules apply with respect to the determination:

    (a) the Chief Justice, or another judge designated by the Chief Justice, shall hear the matter;

    (b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of persons;

    (c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;

    (d) the judge shall examine the information and any other evidence in camera within seven days after the application is made;

    (e) on the request of the Minister or the Solicitor General of Canada made at any time that they consider necessary during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of persons;

    (f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either

      (i) the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary, or

      (ii) the matter is withdrawn;

    (g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of persons;

    (h) the judge shall provide the foreign national with a summary of the information or evidence that enables the foreign national to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of persons if disclosed;

    (i) the judge shall provide the foreign national with an opportunity to be heard regarding their inadmissibility; and

    (j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.

Suspending proceedings for danger opinion

73. (1) On the request of the Minister, a judge may suspend a proceeding with respect to a certificate in order for the Minister to consider the matters referred to in subsection 107(4) or 108(2).

Minister's decision

(2) The Minister, after taking into account the matters referred to in sections 89 to 91, may form an opinion, on the basis of the nature and severity of acts committed or of danger to the security of Canada or to the public, that it would be contrary to the national interest for the foreign national to remain in Canada. The Minister shall notify the foreign national of that opinion in writing attached to the certificate.

Hearing resumed

(3) The judge shall resume the proceeding after the Minister files the opinion, shall provide the foreign national with an opportunity to make submissions on the opinion and shall review the opinion of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Court Act.

Determina-
tion that certificate is reasonable

74. (1) The judge may determine that the certificate, and the Minister's opinion, if any, that is attached to it, is reasonable on the basis of the information and evidence available.

Decision that certificate is not reasonable

(2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that an opinion that is attached to it is not reasonable, the judge shall quash the opinion and suspend the proceeding to allow the Minister to form an opinion under subsection 73(2).

Effect of decision

75. (1) A certificate that is determined to be reasonable under subsection 74(1) is conclusive proof that the foreign national named in it is inadmissible and is a removal order that may not be appealed against and that may be enforced without the necessity of holding or continuing an admissibility hearing. The foreign national may not make another application for protection.

Decision not reviewable

(2) The decision of the judge is final and may not be appealed or judicially reviewed.

Detention

Detention of permanent resident

76. (1) The Minister and the Solicitor General of Canada may issue a warrant for the arrest and detention of a permanent resident named in a certificate described in subsection 71(1) if the Ministers have reasonable grounds to believe that the permanent resident is a danger to national security or to the safety of persons or is unlikely to appear at a proceeding or for removal.

Mandatory detention

(2) A foreign national, other than a permanent resident, who is the subject of an application under subsection 71(1) shall be detained without the issue of a warrant.