Removal Order Appeals Lawyer

Permanent residents of Canada can receive removal orders for certain kinds of immigration violations.

The most common is for having been convicted of a criminal offence in Canada or elsewhere, or for having been found guilty of misrepresentation in an immigration application.

Process of Making a Removal Order Appeal

A removal order against a permanent resident of Canada is typically issued after a hearing before the Immigration Division (ID) of the Immigration and Refugee Board, where the Division has decided that the permanent resident is inadmissible to Canada. After the ID decision, the permanent resident is issued a removal order asking them to leave Canada.

Removal orders can also be made by senior immigration officers in some instances. These officers would typically be Canada Border Services Agency (CBSA) supervisors. The removal order might be issued at a port or entry such as the land border or an airport, or after attendance by the permanent resident at an interview conducted by the CBSA.

If issued a removal order a permanent resident generally has a right to appeal the decision to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board. This appeal is commenced by filing a Notice of Appeal to the IAD within 30 days of the removal order decision being received, in most instances.

After the appeal has been received, the immigration authorities will produce the tribunal record. The record will contain documentation that explains why the removal order was issued, and usually will include any documents that were before the Immigration Division, such as any evidence proving the immigration violation, and a transcript of the hearing. The record is produced by the immigration department and a copy will be provided both to the IAD and the appellant.

The IAD will review the record to see if the case is straight-forward or simple enough to be resolved at an Alternative Dispute Resolution (ADR) conference. An ADR conference is a meeting between the appellant and the lawyer for the immigration department to see if the case can be settled without the need to go to a full hearing. If the IAD believes the case is suitable for an ADR, they will invite the appellant to provide submissions explaining why their case should be allowed to go to an ADR. The Minister may also provide submissions. If the IAD schedules an ADR then this usually occurs within a few months of the appeal being filed and provides an opportunity for an early resolution of the case. At the ADR the appellant will meet with a representative of the immigration department who will question them then decide whether they are willing to consent to the appeal being allowed without the need for a full hearing.

The immigration department may also proactively offer a stay of one or more years where the permanent resident has been found inadmissible on the basis of criminality. A stay is like a probation period where the permanent resident must keep the peace and be of good behavior. If the permanent resident fulfills the terms of the stay, then their appeal will be allowed, the removal order will be lifted, and they will resume their permanent residence. This is another way that the matter can be resolved without the need for a full hearing.

The Removal Order Appeal Process

If the case does not go to an ADR or is not successful at the ADR, the IAD will schedule a full hearing where the appellant will have an opportunity to testify, to call witnesses, and to present new evidence on their behalf. The appellant may be represented by a lawyer for this purpose. At the hearing the immigration authorities will be represented by their own lawyer, called a Minister’s Representative, who will typically be opposed to the appeal and will lead their own evidence to try to have the appeal dismissed. A judge, who is called a Member, will preside over the hearing and will make the final determination in the case.

The appellant can generally challenge the removal order against them on two grounds. The first being the legality of the removal order and the second being humanitarian and compassionate grounds. With respect to the first ground, if the decision is incorrect in law or fact then it may be argued that the removal order was improperly issued and invalid. If this argument cannot be sustained, then an appellant can make their case on humanitarian and compassionate grounds, and explain the mitigating circumstances of their case that warrant the dismissal of the removal order. In this regard, the IAD has equitable discretion to allow an appeal on humanitarian grounds even if it finds that the permanent resident is legally inadmissible.

The leading case in determining discretionary humanitarian and compassionate relief in removal order appeals is Ribic v. Canada (M.E.I.) [1985] IABD No. 4, which sets out a series of factors for consideration by the IAD when deciding whether to exercise equitable discretion to provide humanitarian relief. The Supreme Court of Canada has confirmed the factors laid out in Ribic in Chieu v. Canada (MCI) [2002] 1 SCR 84. The Ribic factors thus remain the appropriate factors for the IAD to consider in Removal Order Appeals when deciding if the appeal should be allowed on humanitarian grounds despite the inadmissibility. The factors are as follows:

  • a) the seriousness of the offence or offences leading to the
  • b) removal order;
  • c) the possibility of rehabilitation or:
  • d) the circumstances surrounding the failure to meet the conditions of
  • e) the length of time spent, and the degree to which the
    appellant is established in, Canada;
  • f) the family in Canada and the dislocation to the family that removal would cause;
  • g) the family and community support available to the appellant;
  • h) the degree of hardship that would be caused to the appellant by the appellant’s return to his or her country of nationality.

While not determinative, the IAD Member will consider the factors laid out in Ribic to guide their decision. The IAD can allow the appeal if they find that the removal order was not issued legally and/or the humanitarian and compassionate grounds of the appellant overweigh the issuing of a removal order. If the appeal is successful, the appellant will be allowed to keep their permanent residence, but in some cases may be subject to a stay of removal for one or more years. A stay of removal is similar to a probationary period. Once the stay period is successfully completed, the appellant can fully resume their permanent residence.

Permanent residents who cannot appeal to the IAD

In some cases, permanent residents who have been issued a removal order do not have a right of appeal to the IAD. This applies to people convicted of serious crimes. Individuals who have been found inadmissible for the following reasons do not have the right to an appeal before the Immigration Appeal Division (IAD):

  • Persons convicted of serious criminality, which is defined as having:
    • Been punished in Canada by a sentence of six months or more of imprisonment, or
    • Been convicted of an offence outside Canada that would be punishable in Canada by a maximum term of imprisonment of at least ten years, or
    • Committed an act outside Canada that would be punishable in Canada by a maximum term of imprisonment of at least ten years.
  • Persons convicted of an organized crime;
  • Persons found inadmissible on security grounds;
  • Persons found inadmissible for violations of human or international rights.

If the permanent resident does not have a right of appeal to the IAD then there may be the option of appealing the removal order decision to the Federal Court by way of application for leave and judicial review.

Appeals before the IAD involve complex issues of law and procedure and it is therefore highly recommended that an appellant retain the services of an experienced immigration lawyer to assist them with their case. It should also be considered that the process before the IAD is adversarial and that the immigration authorities will send their own lawyer to defend the decision to issue the removal order. Those who attempt to represent themselves or use inexperienced counsel therefore do so at their own risk.

The Law Office of Matthew Jeffery has over 20 years of experience assisting clients before the Immigration Appeal Division. We specialize in complex cases.

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