Marginal note:Incarcerated foreign nationals

59. 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

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 including the best interests of the child.

Marginal note:Regulations

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

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

• (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.

Division 7Right of Appeal

Marginal note:Competent jurisdiction

62. 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

• 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.

• 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 at an examination or admissibility hearing to make a removal order against them.

• 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 at an examination or admissibility hearing to make a removal order against them.

• 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.

Marginal note:No appeal for inadmissibility

• 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.

• 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 two years.

• 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.

Marginal note:Humanitarian and compassionate 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.

Marginal note: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.

Marginal note: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 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

• 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.

• 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

• 69. (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

• 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.

• 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.

Marginal note: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.

Division 8Judicial Review

Marginal note:Application for judicial review

• 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.

• 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 — Trial Division (“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.

Marginal note:Right of Minister

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.

Marginal note:Judicial review

74. 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) 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.

Marginal note:Rules

• 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.

• Marginal note:Inconsistencies

  (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 9Certificates and Protection of Information

Examination on Request by the Minister and the Solicitor General of Canada

Marginal note:Definitions

76. The definitions in this section apply in this Division.

“information”

« renseignements »

“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.

“judge”

« juge »

“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.

Marginal note:Referral of certificate

• 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.

• Marginal note:Effect of referral

  (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.

Marginal note:Judicial consideration

78. The following provisions govern the determination:

• (a) the judge 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 any person;

• (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 private within seven days after the referral of the certificate for determination;

• (e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or 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 any person;

• (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 the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary;

• (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 any person;

• (h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them 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 any person if disclosed;

• (i) the judge shall provide the permanent resident or 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.

Marginal note:Proceedings suspended

• 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).

• Marginal note:Proceedings resumed

  (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.

Marginal note:Determination that certificate is reasonable

• 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.

• Marginal note:Determination 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 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.

• Marginal note:Determination not reviewable

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

Marginal note:Effect of determination — removal order

81. If a certificate is determined to be reasonable under subsection 80(1),

• (a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible;

• (b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and

• (c) the person named in it may not apply for protection under subsection 112(1).

Detention

Marginal note:Detention of permanent resident

• 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.

• Marginal note:Mandatory detention

  (2) A foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant.