Removal Order Appeals
The Immigration Appeal Division (IAD) is one of the three tribunals that make up
the Immigration and Refugee Board. It has what is called "equitable jurisdiction"
to hear appeals from Permanent Residents. Examples are appeals of removal orders
due to criminality, appeals of refused sponsorship applications, and residency appeals
for Permanent Residents who may have failed to comply with their obligations.
In the case of removal order appeals, the IAD can weigh the factors in favour of
non-removal—such as establishment in Canada, presence of family or children, efforts
at rehabilitation,
etc.—against those for removal—such as a lengthy criminal
record, lack of establishment and inability to rehabilitate. These proceedings are
very adversarial in nature and require the skill set of a lawyer. You can present
evidence, have witnesses testify in your support and present arguments for your
non-removal, including evidence of eventual hardship in your home country.
Removal orders are issued to Permanent Residents who have been convicted of an offence
that carries a penalty of at least 10 years, or for which they have served more
than a 6 months sentence. If you're a Permanent resident and you've received a removal
order, you have the right to appeal the removal to the IAD, but the appeal must
be filed within 30 days from the day you're given a removal order, likely at your
inadmissibility hearing.
At the appeal, the IAD will consider whether there are sufficient humanitarian and
compassionate factors, including the best interests of the child, to justify either
dismissing the removal order or staying the order on conditions. After hearing the
matter, the Board member has three choices: cancelling the removal order, staying
the removal based on certain conditions, and dismissing the appeal altogether. Just
like a negative refugee decision, if the IAD issues a negative decision that is
wrong in law, fact or mixed fact and law, you can judicially review the decision
to the Federal Court. However, while you wait to find out whether the Court will
hear your case, you do not benefit from a statutory stay off removal. You would
have to bring a motion for a stay should CBSA attempt to remove you before you obtain
an answer from the Court.
For more information on the rules and procedures of the IAD, and what to expect
at your hearing, click
here.