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DIVISION 7 |
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RIGHT OF APPEAL |
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Competent
jurisdiction
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62. The Immigration Appeal Division is the
competent Division of the Board with respect
to appeals under this Division.
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Right to
appeal - visa
refusal of
family class
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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.
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Right to
appeal - visa
and removal
order
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(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.
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Right to
appeal -
removal order
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(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.
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Right of
appeal -
residency
obligation
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(4) A permanent resident 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
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(5) The Minister may appeal to the
Immigration Appeal Division against a
decision of the Immigration Division in an
admissibility hearing.
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No appeal for
inadmissibi- lity
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64. (1) No appeal may be made to the
Immigration Appeal Division by a foreign
national or their sponsor or by a permanent
resident if the foreign national or permanent
resident 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
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(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.
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Misrepresen- tation
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(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.
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Humanitarian
and
compassionat
e considera- tions
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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.
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Disposition
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66. After considering the appeal of a
decision, the Immigration Appeal Division
shall
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Appeal
allowed
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67. (1) To allow an appeal, the Immigration
Appeal Division must be satisfied that, at the
time that the appeal is disposed of,
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Effect
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(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.
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Removal
order stayed
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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.
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Effect
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(2) Where the Immigration Appeal
Division stays the removal order
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Reconsidera- tion
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(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.
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Termination
and
cancellation
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(4) If the Immigration Appeal Division has
stayed a removal order against a permanent
resident or a foreign national who was found
inadmissible on grounds of serious criminality
or criminality, and they are convicted of
another offence referred to in subsection
36(1), the stay is cancelled by operation of law
and the appeal is terminated.
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Dismissal
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69. (1) The Immigration Appeal Division
shall dismiss an appeal if it does not allow the
appeal or stay the removal order, if any.
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Minister's
Appeal
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(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).
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Removal
order
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(3) If the Immigration Appeal Division
dismisses an appeal made under subsection
63(4) and the permanent resident is in Canada,
it shall make a removal order.
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Decision
binding
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70. (1) An officer, in examining a
permanent resident or a foreign national, is
bound by the decision of the Immigration
Appeal Division to allow an appeal in respect
of the foreign national.
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Examination
suspended
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(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 permanent
resident or a foreign national, an examination
of the permanent resident or the foreign
national under this Act is suspended until the
final determination of the application.
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Reopening
appeal
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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.
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DIVISION 8 |
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JUDICIAL REVIEW |
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Application
for judicial
review
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72. (1) Judicial review by the Federal Court
with respect to any matter - a decision,
determination or order made, a measure taken
or a question raised - under this Act is
commenced by making an application for
leave to the Court.
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Application
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(2) The following provisions govern an
application under subsection (1):
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Right of
Minister
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73. 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.
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Judicial
review
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74. Judicial review is subject to the
following provisions:
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Rules
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75. (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 appeals. The rules are binding
despite any rule or practice that would
otherwise apply.
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Inconsis- tencies
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(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.
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DIVISION 9 |
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PROTECTION OF INFORMATION |
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Examination on Request by the Minister and
the Solicitor General of Canada
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Definitions
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76. The definitions in this section apply in
this Division.
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``information'
' « renseigne- ments »
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``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.
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``judge'' « juge »
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``judge'' means the Associate Chief Justice of
the Federal Court or a judge of the Trial
Division of that Court designated by the
Associate Chief Justice.
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Referral of
certificate
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77. (1) The Minister and the Solicitor
General of Canada shall sign a certificate
stating that a permanent resident or a foreign
national is inadmissible on grounds of
security, violating human or international
rights, serious criminality or organized
criminality and refer it to the Federal
Court-Trial Division, which shall make a
determination under section 80.
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Effect of
referral
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(2) When the certificate is referred, a
proceeding under this Act respecting the
person named in the certificate, other than an
application under subsection 112(1), may not
be commenced and, if commenced, must be
adjourned, until the judge makes the
determination.
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Judicial
consideration
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78. The following provisions govern the
determination:
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Proceedings
suspended
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79. (1) On the request of the Minister, the
permanent resident or the foreign national, a
judge shall suspend a proceeding with respect
to a certificate in order for the Minister to
decide an application for protection made
under subsection 112(1).
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Proceedings
resumed
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(2) If a proceeding is suspended under
subsection (1) and the application for
protection is decided, the Minister shall give
notice of the decision to the permanent
resident or the foreign national and to the
judge, the judge shall resume the proceeding
and the judge shall review the lawfulness of
the decision of the Minister, taking into
account the grounds referred to in subsection
18.1(4) of the Federal Court Act.
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Determina- tion that certificate is reasonable
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80. (1) The judge shall, on the basis of the
information and evidence available,
determine whether the certificate is
reasonable and whether the decision on the
application for protection, if any, is lawfully
made.
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Determina- tion that certificate is not reasonable
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(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 the decision on the application
for protection is not lawfully made, the judge
shall quash the decision and suspend the
proceeding to allow the Minister to make a
decision on the application for protection.
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Determina- tion not reviewable
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(3) The determination of the judge is final
and may not be appealed or judicially
reviewed.
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Effect of
determina- tion - removal order
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81. If a certificate is determined to be
reasonable under subsection 80(1),
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Detention
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Detention of
permanent
resident
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82. (1) The Minister and the Solicitor
General of Canada may issue a warrant for the
arrest and detention of a permanent resident
who is named in a certificate described in
subsection 77(1) if they have reasonable
grounds to believe that the permanent resident
is a danger to national security or to the safety
of any person or is unlikely to appear at a
proceeding or for removal.
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Mandatory
detention
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(2) A foreign national who is named in a
certificate described in subsection 77(1) shall
be detained without the issue of a warrant.
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Review of
decision for
detention
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83. (1) Not later than 48 hours after the
beginning of detention of a permanent
resident under section 82, a judge shall
commence a review of the reasons for the
continued detention. Section 78 applies with
respect to the review, with any modifications
that the circumstances require.
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