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

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 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.

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, 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.

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) 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.

Marginal note:Rules

• 75 (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.

DIVISION 9Certificates and Protection of Information

Interpretation

Marginal note:Definitions

76 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)

Certificate

Marginal note:Referral of certificate

• 77 (1) The Minister and the Minister of Citizenship and Immigration shall sign a certificate stating that a permanent resident or foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, and shall refer the certificate to the Federal Court.

• Marginal note:Filing of evidence and summary

  (2) When the certificate is referred, the Minister shall file with the Court the information and other evidence that is relevant to the ground of inadmissibility stated in the certificate and on which the certificate is based, as well as a summary of information and other evidence that enables the person named in the certificate to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion, would be injurious to international relations, national defence or national security or endanger the safety of any person if disclosed.

• Marginal note:Effect of referral

  (3) Once the certificate is referred, no proceeding under this Act respecting the person who is named in the certificate — other than proceedings relating to sections 79.1, 82 to 82.31, 112 and 115 — may be commenced or continued until the judge determines whether the certificate is reasonable.

Marginal note:Conditions — inadmissibility on grounds of security

• 77.1 (1) If a certificate stating that a permanent resident or foreign national is inadmissible on grounds of security is referred to the Federal Court and no warrant for the person’s arrest and detention is issued under section 81, the Minister of Public Safety and Emergency Preparedness shall impose the prescribed conditions on the person who is named in the certificate.

• Marginal note:Duration of conditions

  (2) The prescribed conditions imposed under subsection (1) cease to apply only when

  • (a) the person is detained;

  • (b) the certificate stating that the person is inadmissible on grounds of security is withdrawn;

  • (c) a final determination is made that the certificate is not reasonable;

  • (d) the Minister makes a declaration under subsection 42.1(1) or (2) in relation to the person; or

  • (e) a removal order is enforced against the person in accordance with the regulations.

Marginal note:Determination

78 The judge shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that it is not.

Marginal note:Appeal

79 An appeal from the determination may be made to the Federal Court of Appeal only if the judge certifies that a serious question of general importance is involved and states the question. However, no appeal may be made from an interlocutory decision in the proceeding.

Marginal note:Appeal by Minister

• 79.1 (1) Despite section 79, the Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, any decision made in the proceeding requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person.

• Marginal note:Effects of appeal

  (2) The appeal suspends the execution of the decision, as well as the proceeding under section 78, until the appeal has been finally determined.

Marginal note:Effect of certificate

80 A certificate that is determined to be reasonable is conclusive proof that the person named in it is inadmissible and is a removal order that is in force without it being necessary to hold or continue an examination or admissibility hearing.

Detention and Release

Marginal note:Ministers’ warrant

81 The Minister and the Minister of Citizenship and Immigration may issue a warrant for the arrest and detention of a person who is named in a certificate if they have reasonable grounds to believe that the person 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:Initial review of detention

• 82 (1) A judge shall commence a review of the reasons for the person’s continued detention within 48 hours after the detention begins.

• Marginal note:Further reviews of detention — before determining reasonableness

  (2) Until it is determined whether a certificate is reasonable, a judge shall commence another review of the reasons for the person’s continued detention at least once in the six-month period following the conclusion of each preceding review.

• Marginal note:Further reviews of detention — after determining reasonableness

  (3) A person who continues to be detained after a certificate is determined to be reasonable may apply to the Federal Court for another review of the reasons for their continued detention if a period of six months has expired since the conclusion of the preceding review.

• Marginal note:Reviews of conditions

  (4) A person who is released from detention under conditions may apply to the Federal Court for another review of the reasons for continuing the conditions if a period of six months has expired since the conclusion of the preceding review.

• Marginal note:Order

  (5) On review, the judge

  • (a) shall order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person or that they would be unlikely to appear at a proceeding or for removal if they were released under conditions; or

  • (b) in any other case, shall order or confirm the person’s release from detention and set any conditions that the judge considers appropriate.

• Marginal note:Conditions — inadmissibility on grounds of security

  (6) If the judge orders the release, under paragraph (5)(b), of a person who is named in a certificate stating that they are inadmissible on grounds of security, the judge shall also impose the prescribed conditions on the person.

• Marginal note:No review of conditions

  (7) The prescribed conditions imposed under subsection (6) are not subject to review under subsection (4).

• Marginal note:Variation of conditions

  (8) If a person is subject to the prescribed conditions imposed under subsection (6), any variation of conditions under subsection 82.1(1) or paragraph 82.2(3)(c) is not to result in the person being subject to conditions that do not include those prescribed conditions.

• Marginal note:Duration of conditions

  (9) The prescribed conditions imposed under subsection (6) cease to apply only when one of the events described in paragraphs 77.1(2)(a) to (e) occurs.

Marginal note:Variation of orders

• 82.1 (1) A judge may vary an order made under subsection 82(5) on application of the Minister or of the person who is subject to the order if the judge is satisfied that the variation is desirable because of a material change in the circumstances that led to the order.

• Marginal note:Calculation of period for next review

  (2) For the purpose of calculating the six-month period referred to in subsection 82(2), (3) or (4), the conclusion of the preceding review is deemed to have taken place on the day on which the decision under subsection (1) is made.

Marginal note:Arrest and detention — breach of conditions

• 82.2 (1) A peace officer may arrest and detain a person released under section 82 or 82.1 if the officer has reasonable grounds to believe that the person has contravened or is about to contravene any condition applicable to their release.

• Marginal note:Appearance before judge

  (2) The peace officer shall bring the person before a judge within 48 hours after the detention begins.

• Marginal note:Order

  (3) If the judge finds that the person has contravened or was about to contravene any condition applicable to their release, the judge shall

  • (a) order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person or that they would be unlikely to appear at a proceeding or for removal if they were released under conditions;

  • (b) confirm the release order; or

  • (c) vary the conditions applicable to their release.

• Marginal note:Calculation of period for next review

  (4) For the purpose of calculating the six-month period referred to in subsection 82(2), (3) or (4), the conclusion of the preceding review is deemed to have taken place on the day on which the decision under subsection (3) is made.