Canadian Immigration Courts and Administrative Tribunals
Immigration is an integral part of the Canadian legal system. The Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR) define the directions immigration officers and border services officers take in deciding on visa and immigration applications outside, at the time of entry and inside Canada. Since the visa and immigration decisions affect people’s lives, there are specific judicial options available in Canada to resolve refusals by the officers, objections to the decisions made by the officers, or decide whether a person may remain in Canada.
IRB is the largest administrative tribunal in Canada. It is very similar to a court, but it is less formal. IRB is only focused on immigration and refugee matters. The Immigration and Refugee Board of Canada consists of four divisions.
- The Immigration Division (ID),
- The Immigration Appeal Division (IAD),
- The Refugee Protection Division (RPD), and
- The Refugee Appeal Division (RAD).
The Immigration Division (ID)
The ID deals with two significant matters: Admissibility to Canada and Detention Reviews
- Admissibility to Canada – Sections 33 to 43 of the IRPA lay out grounds of inadmissibility to Canada, namely security, human or international rights violations, criminality or serious criminality, organized criminality, health grounds, financial reasons, misrepresentation, and non-compliance with the Act! The Immigration Division (ID) of the IRB holds admissibility hearings. The people who attend such hearings are usually referred to the ID by the Canada Border Services Agency (CBSA) officers.
- Detention Review Hearings – The CBSA detains foreign nationals and permanent residents in certain circumstances under the IRPA. The Immigration Division holds hearings within the first 48 hours of detention, then after seven days, and then every 30 days to decide whether the individual needs to remain in custody or be released. Sometimes a bail bondsperson approaches the ID and posts a bond to encourage the Division to remove the affected person under certain conditions.
The Immigration Appeal Division (IAD)
The IAD holds the following hearings:
- Appeals to the ID decisions – If the ID deems a person inadmissible to Canada, they may have the option to appeal the decision to the IAD under subsections 63(2) and 63(3) of the IRPA.
- Appeals to the Sponsorship Applications Refusals – If a Canadian Citizen or Permanent Resident sponsors a family member and an Immigration Officer refuses the application, they usually have the right to appeal the decision to the IAD under subsection 63(1) of the IRPA.
- Appeals to termination of the Permanent Residency – If an immigration officer decides a Permanent Resident has lost their permanent residency because they do not meet their residency obligations, the affected person may appeal this decision to the IAD under subsections 63(3) or 63(4) of the IRPA.
- Appeals to visa or removal orders – If a holder of a permanent residency visa or a protected person receives a removal order, they may appeal the decision to the IAD under subsection 63(2) of the IRPA.
- Appeals by the Minister – The Minister of Public Safety or the Minister of the Immigration, Refugees and Citizenship Canada may appeal the decisions of the ID to the IAD.
Please note that under subsection 64(1) of the IRPA, there is no right to appeal for inadmissibility due to security, violating human or international rights, serious criminality or organized criminality. Also, subsection 64(3) of the IRPA prevents appeals to inadmissibility due to misrepresentation except for spouses and common-law partners in sponsorship applications.
I have another article that explains immigration appeals in more detail:
The Refugee Protection Division (RPD)
The RPD holds hearings for those who file for refugee protection under sections 96 and 97 of the IRPA. The hearings are limited to people who file for asylum either inside Canada or while entering Canada. Those who file for refugee status outside Canada will be dealt with by the United Nations High Commissioner for Refugees (UNHCR) and Immigration, Refugees, and Citizenship Canada (IRCC) directly.
The Refugee Appeal Division (RAD)
The RAD takes care of the appeals to the decisions made by the RPD under subsection 171 of the IRPA. Both the refugee claimant and the Minister may file for the appeal. The RAD usually does not hold oral hearings but reviews written submissions of both parties, and a panel of three members decides whether to allow or dismiss the appeal.
The Federal Court of Canada (FC)
Not every adverse decision by the immigration authorities gives you the right to appeal the decision. Some examples of not-being-able-to-appeal situations include the following:
- Economic immigration applications include the Express Entry, the Federal Self-employed class, the Provincial Nominee Programs, and the Start-up Visa.
- Temporary Resident Visa or Permit applications
- Authorization to Return to Canada (ARC) applications
- Rehabilitation applications
- Work Permit or Study Permit applications
- Permanent residency applications as caregivers or under the Humanitarian and Compassionate Considerations (H&C)
Suppose an immigration officer refuses any of these applications or your appeal to the IAD or the RAD is dismissed. In that case, you may have the opportunity to file for Judicial Review (JR) under section 72 of the IRPA. The Federal Court of Canada holds Judicial Review hearings. If they allow the JR, the matter will go back to the immigration authorities or the IRB for a second review. Sometimes JR hearings are because the processing has taken a long time.
The Federal Court of Appeal (FCA) and the Supreme Court of Canada (SCC) may also deal with immigration hearings.
Citizenship judges take care of the citizenship applications, and they may call the applicants for interviews, but the process is not a court-like process. While the citizenship judges are independent of the immigration authorities, they are not considered judicial officers.
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