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(b) in a case other than that set out in
paragraph (a), seven days after the claim is
determined to be ineligible;
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|
(c) 15 days after notification that the claim
is rejected by the Refugee Protection
Division, if no appeal is made, or by the
Refugee Appeal Division, if an appeal is
made;
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|
(d) 15 days after notification that the claim
is declared withdrawn or abandoned; and
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(e) 15 days after proceedings are terminated
as a result of notice under paragraph
104(1)(c) or (d).
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| Stay
|
50. A removal order is stayed
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|
(a) if a decision that was made in a judicial
proceeding - at which the Minister shall
be given the opportunity to make
submissions - would be directly
contravened by the enforcement of the
removal order;
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|
(b) in the case of a foreign national
sentenced to a term of imprisonment in
Canada, until the sentence is completed;
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(c) for the duration of a stay imposed by the
Immigration Appeal Division or any other
court of competent jurisdiction;
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(d) for the duration of a stay under
paragraph 114(1)(b); and
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(e) for the duration of a stay imposed by the
Minister.
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| Void -
permanent
residence
|
51. A removal order that has not been
enforced becomes void if the foreign national
becomes a permanent resident.
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| No return
without
prescribed
authorization
|
52. (1) If a removal order has been enforced,
the foreign national shall not return to Canada,
unless authorized by an officer or in other
prescribed circumstances.
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| Return to
Canada
|
(2) If a removal order for which there is no
right of appeal has been enforced and is
subsequently set aside in a judicial review, the
foreign national is entitled to return to Canada
at the expense of the Minister.
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|
Regulations
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| Regulations
|
53. The regulations may provide for any
matter relating to the application of this
Division, and may include provisions
respecting
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(a) conditions that may or must be imposed,
varied, or cancelled, individually or by
class, on foreign nationals;
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(b) the circumstances in which a removal
order shall be made or confirmed against a
foreign national;
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(c) the circumstances in which status may
be restored;
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(d) the circumstances in which a removal
order may be stayed, including a stay
imposed by the Minister and a stay that is
not expressly provided for by this Act;
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(e) the effect and enforcement of removal
orders;
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(f) the effect of a pardon under the Criminal
Records Act on the status of foreign
nationals and removal orders made against
them; and
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(g) the financial obligations that may be
imposed with respect to a removal order.
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| Immigration
Division
|
54. The Immigration Division is the
competent Division of the Board with respect
to the review of reasons for detention under
this Division.
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| Arrest and
detention with
warrant
|
55. (1) An officer may issue a warrant for
the arrest and detention of a foreign national
who the officer has reasonable grounds to
believe is inadmissible and is a danger to the
public or is unlikely to appear for
examination, an admissibility hearing or
removal from Canada.
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| Arrest and
detention
without
warrant
|
(2) An officer may, without a warrant, arrest
and detain a foreign national, other than a
permanent resident or a protected person,
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(a) who the officer has reasonable grounds
to believe is inadmissible and is a danger to
the public or is unlikely to appear for
examination, an admissibility hearing or
removal from Canada; or
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|
(b) if the officer is not satisfied of the
identity of the foreign national in the course
of any procedure under this Act.
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| Detention on
entry
|
(3) A foreign national may, on entry into
Canada, be detained if an officer
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|
(a) considers it necessary to do so in order
for the examination to be completed; or
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|
(b) has reasonable grounds to suspect that
the foreign national is inadmissible on
grounds of security or for violating human
or international rights.
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| Notice
|
(4) If a foreign national is taken into
detention, an officer shall without delay give
notice to the Immigration Division.
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| Release -
officer
|
56. An officer may order the release from
detention of a foreign national before the first
detention review by the Immigration Division
if the officer is of the opinion that the reasons
for the detention no longer exist.
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| Review of
detention
|
57. (1) Within 48 hours after a foreign
national is taken into detention, or without
delay afterward, the Immigration Division
must review the reasons for the continued
detention.
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| Further
review
|
(2) At least once during the seven days
following the review under subsection (1), and
at least once during each 30-day period
following each previous review, the
Immigration Division must review the reasons
for the continued detention.
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| Presence of
foreign
national
|
(3) In a review under subsection (1) or (2),
an officer shall bring the foreign national
before the Immigration Division or to a place
specified by it.
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| Release -
Immigration
Division
|
58. (1) The Immigration Division shall
order the release of a foreign national unless
it is satisfied, taking into account prescribed
factors, that
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(a) they are a danger to the public;
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|
(b) they are unlikely to appear for
examination, an admissibility hearing or
removal from Canada;
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|
|
(c) the Minister is taking necessary steps to
inquire into a reasonable suspicion that they
are inadmissible on grounds of security or
for violating human or international rights;
or
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|
(d) the Minister is of the opinion that their
identity has not been, but may be,
established and they have not reasonably
cooperated with the Minister by providing
relevant information for the purpose of
establishing their identity or the Minister is
making reasonable efforts to establish their
identity.
|
|
| Detention -
Immigration
Division
|
(2) The Immigration Division may order
the detention of a foreign national if it is
satisfied that the foreign national is the object
of an admissibility hearing or is subject to a
removal order and that the foreign national is
a danger to the public or is unlikely to appear
for examination, an admissibility hearing or
removal from Canada.
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|
| Incarcerated
foreign
nationals
|
59. If a warrant for arrest and detention
under this Act is issued with respect to a
foreign national who is detained under another
Act of Parliament in an institution, the person
in charge of the institution shall deliver the
inmate to an officer at the end of the inmate's
period of detention in the institution.
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| Minor
children
|
60. For the purposes of this Division, it is
affirmed as a principle that a minor child shall
be detained only as a measure of last resort,
taking into account the other applicable
grounds and criteria.
|
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| Regulations
|
61. The regulations may provide for the
application of this Division, and may include
provisions respecting
|
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|
|
(a) grounds for and conditions and criteria
with respect to the release of persons from
detention;
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|
|
(b) factors to be considered by an officer or
the Immigration Division; and
|
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|
|
(c) special considerations that may apply in
relation to the detention of minor children.
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|
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|
| Competent
jurisdiction
|
62. The Immigration Appeal Division is the
competent Division of the Board with respect
to appeals under this Division.
|
|
| Right to
appeal - visa
refusal of
family class
|
63. (1) A person who has filed in the
prescribed manner an application 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
foreign national a permanent resident visa.
|
|
| Right to
appeal - visa
and removal
order
|
(2) A foreign national who holds a
permanent resident visa may appeal to the
Immigration Appeal Division against a
decision at an examination or admissibility
hearing to make a removal order against them.
|
|
| Right to
appeal -
removal order
|
(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.
|
|
| Right of
appeal -
residency
obligation
|
(4) A foreign national may appeal to the
Immigration Appeal Division against a
decision made outside of Canada on the
residency obligation under section 28.
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|
| Right of
appeal -
Minister
|
(5) The Minister may appeal to the
Immigration Appeal Division against a
decision of the Immigration Division in an
admissibility hearing.
|
|
| No appeal for
inadmissibilit
y
|
64. (1) No appeal may be made to the
Immigration Appeal Division by a foreign
national or their sponsor if the foreign national
has been found to be inadmissible on grounds
of security, violating human or international
rights, serious criminality or organized
criminality.
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|
| Serious
criminality
|
(2) 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.
|
|
| Misrepresenta
tion
|
(3) No appeal may be made under
subsection 63(1) in respect of a decision that
was based on a finding of inadmissibility on
the ground of misrepresentation, unless the
foreign national in question is the sponsor's
spouse, common-law partner or child.
|
|
| Humanitarian
and
compassionat
e
considerations
|
65. In an appeal under subsection 63(1) or
(2) respecting an application based on
membership in the family class, the
Immigration Appeal Division may not
consider humanitarian and compassionate
considerations unless it has decided that the
foreign national is a member of the family
class and that their sponsor is a sponsor within
the meaning of the regulations.
|
|
| Disposition
|
66. After considering the appeal of a
decision, the Immigration Appeal Division
shall
|
|
|
|
(a) allow the appeal in accordance with
section 67;
|
|
|
|
(b) stay the removal order in accordance
with section 68; or
|
|
|
|
(c) dismiss the appeal in accordance with
section 69.
|
|
| Appeal
allowed
|
67. (1) To allow an appeal, the Immigration
Appeal Division must be satisfied that, at the
time that the appeal is disposed of,
|
|
|
|
(a) the decision appealed is wrong in law or
fact or mixed law and fact;
|
|
|
|
(b) a principle of natural justice has not been
observed; or
|
|
|
|
(c) other than in the case of an appeal by the
Minister, taking into account the best
interests of a child directly affected by the
decision, sufficient humanitarian and
compassionate grounds warrant special
relief in light of all the circumstances of the
case.
|
|
| Effect
|
(2) If the Immigration Appeal Division
allows the appeal, it shall set aside the original
decision and substitute a determination that,
in its opinion, should have been made,
including the making of a removal order, or
refer the matter to the appropriate
decision-maker for reconsideration.
|
|
| Removal
order stayed
|
68. (1) To stay a removal order, the
Immigration Appeal Division must be
satisfied, taking into account the best interests
of a child directly affected by the decision,
that sufficient humanitarian and
compassionate considerations warrant special
relief in light of all the circumstances of the
case.
|
|
| Effect
|
(2) Where the Immigration Appeal
Division stays the removal order
|
|
|
|
(a) it shall impose any condition that is
prescribed and may impose any condition
that it considers necessary;
|
|
|
|
(b) all conditions imposed by the
Immigration Division are cancelled;
|
|
|
|
(c) it may vary or cancel any non-prescribed
condition imposed under paragraph (a); and
|
|
|
|
(d) it may cancel the stay, on application or
on its own initiative.
|
|
| Reconsiderati
on
|
(3) If the Immigration Appeal Division has
stayed a removal order, it may at any time, on
application or on its own initiative, reconsider
the appeal under this Division.
|
|
| Termination
and
cancellation
|
(4) If the Immigration Appeal Division has
stayed a removal order made against a foreign
national who was found inadmissible on
grounds of serious criminality or criminality,
and the foreign national is convicted of
another offence referred to in subsection
36(1), the stay is cancelled by operation of law
and the appeal is terminated.
|
|
| Dismissal
|
69. (1) The Immigration Appeal Division
shall dismiss an appeal if it does not allow the
appeal or stay the removal order, if any.
|
|
| Minister's
Appeal
|
(2) In the case of an appeal by the Minister
respecting a permanent resident or a protected
person, other than a person referred to in
subsection 64(1), if the Immigration Appeal
Division is satisfied that, 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, it may make and may stay the applicable
removal order, or dismiss the appeal, despite
being satisfied of a matter set out in paragraph
67(1)(a) or (b).
|
|
| Removal
order
|
(3) If the Immigration Appeal Division
dismisses an appeal made under subsection
63(4) and the foreign national is in Canada, it
shall make a removal order.
|
|
| Decision
binding
|
70. (1) An officer, in examining a foreign
national, is bound by the decision of the
Immigration Appeal Division to allow an
appeal in respect of the foreign national.
|
|
| Examination
suspended
|
(2) 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.
|
|
| Reopening
appeal
|
71. The Immigration Appeal Division, on
application by a foreign national who has not
left Canada under a removal order, may
reopen an appeal if it is satisfied that it failed
to observe a principle of natural justice.
|
|