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Immigration and Refugee Protection Act (S.C. 2001, c. 27)

Act current to 2022-07-25 and last amended on 2022-06-23. Previous Versions

PART 1Immigration to Canada (continued)

DIVISION 6Detention and Release (continued)

Marginal note:Release — on request

  •  (1) The Minister may, on request of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, order their release from detention if, in the Minister’s opinion, exceptional circumstances exist that warrant the release.

  • Marginal note:Release — Minister’s own initiative

    (2) The Minister may, on the Minister’s own initiative, order the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question if, in the Minister’s opinion, the reasons for the detention no longer exist.

  • Marginal note:Conditions

    (3) If the Minister orders the release of a designated foreign national, the Minister may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that he or she considers necessary.

  • Marginal note:Conditions — inadmissibility on grounds of security

    (4) If the Minister orders the release of a designated foreign national who is the subject of either a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security, the Minister must also impose the prescribed conditions on the person.

  • Marginal note:Duration of conditions

    (5) The prescribed conditions imposed under subsection (4) cease to apply only when one of the events described in paragraphs 44(5)(a) to (e) occurs.

  • 2012, c. 17, s. 27
  • 2013, c. 16, s. 36

Marginal note:Incarcerated foreign nationals

 If a warrant for arrest and detention under this Act is issued with respect to a permanent resident or 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.

Marginal note:Minor children

 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 including the best interests of the child.

Marginal note:Regulations

 The regulations may provide for the application of this Division, and may include provisions respecting

  • (a) grounds for and criteria with respect to the release of persons from detention;

  • (a.1) the type of conditions that an officer, the Immigration Division or the Minister may impose with respect to the release of a person from detention;

  • (a.2) the type of conditions that the Immigration Division must impose with respect to the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question;

  • (a.3) the conditions that an officer, the Immigration Division or the Minister must impose with respect to the release of a permanent resident or foreign national who is the subject of either a report on inadmissibility on grounds of security or a removal order for inadmissibility on grounds of security;

  • (b) factors to be considered by an officer or the Immigration Division; and

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

  • 2001, c. 27, s. 61
  • 2012, c. 17, s. 28
  • 2013, c. 16, s. 36

DIVISION 7Right of Appeal

Marginal note:Competent jurisdiction

 The Immigration Appeal Division is the competent Division of the Board with respect to appeals under this Division.

Marginal note:Right to appeal — visa refusal of family class

  •  (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.

  • Marginal note: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 to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.

  • Marginal note:Right to appeal removal order

    (3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.

  • Marginal note:Right of appeal — residency obligation

    (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.

  • Marginal note: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.

  • 2001, c. 27, s. 63
  • 2015, c. 3, s. 110

Marginal note:No appeal for inadmissibility

  •  (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.

  • Marginal note: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 six months or that is described in paragraph 36(1)(b) or (c).

  • Marginal note:Misrepresentation

    (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.

  • 2001, c. 27, s. 64
  • 2013, c. 16, s. 24

Marginal note:Humanitarian and compassionate considerations

 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.

Marginal note:Disposition

 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.

Marginal note:Appeal allowed

  •  (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 considerations warrant special relief in light of all the circumstances of the case.

  • Marginal note: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.

Marginal note:Removal order stayed

  •  (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.

  • Marginal note: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.

  • Marginal note:Reconsideration

    (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.

  • Marginal note:Termination and cancellation

    (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.

Marginal note:Dismissal

  •  (1) The Immigration Appeal Division shall dismiss an appeal if it does not allow the appeal or stay the removal order, if any.

  • Marginal note: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).

  • Marginal note:Removal order

    (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.

Marginal note:Decision binding

  •  (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 permanent resident or foreign national.

  • Marginal note: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 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.

  • 2001, c. 27, s. 70
  • 2015, c. 3, s. 111(E)

Marginal note:Reopening appeal

 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.

DIVISION 8Judicial Review

Marginal note:Application for judicial review

  •  (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, subject to section 86.1, commenced by making an application for leave to the Court.

  • Marginal note:Application

    (2) The following provisions govern an application under subsection (1):

    • (a) the application may not be made until any right of appeal that may be provided by this Act is exhausted;

    • (b) subject to paragraph 169(f), notice of the application shall be served on the other party and the application shall be filed in the Registry of the Federal Court (“the Court”) within 15 days, in the case of a matter arising in Canada, or within 60 days, in the case of a matter arising outside Canada, after the day on which the applicant is notified of or otherwise becomes aware of the matter;

    • (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.

  • 2001, c. 27, s. 72
  • 2002, c. 8, s. 194
  • 2015, c. 20, s. 52

Marginal note:Right of Minister

 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.

Marginal note:Judicial review

 Judicial review is subject to the following provisions:

  • (a) the judge who grants leave 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) subject to section 87.01, an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.

  • 2001, c. 27, s. 74
  • 2015, c. 20, s. 53

Marginal note:Rules

  •  (1) Subject to the approval of the Governor in Council, the rules committee established under section 45.1 of the Federal Courts Act 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.

  • Marginal note:Inconsistencies

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

  • 2001, c. 27, s. 75
  • 2002, c. 8, s. 194

DIVISION 9Certificates and Protection of Information

Interpretation

Marginal note:Definitions

 The following definitions apply in this Division.

information

information means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, the government of a foreign state, an international organization of states or an institution of such a government or international organization. (renseignements)

judge

judge means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice. (juge)

  • 2001, c. 27, s. 76
  • 2002, c. 8, s. 194
  • 2008, c. 3, s. 4
 
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