#5 H and C, Appeals and Detentions Flashcards
Removal Order Appeals are often made by
(1) PR
(2) FN with a PR visa
and (3) … persons
Protected
As a form of early resolution, alternative Dispute Resolution (ADR) is done as a
(informal) conference
The (IAD) Minister has the right to appeal *any* admissibility decision made by the Immigration Division (ID). That’s why *Minister’s Appeals* have been criticised as …
unfair
*H and C* relief is granted on a … basis and it is reserved for *exceptional* cases
discretionary
Removal order can be issued for failure to meet residency at
1.
2.
3.
- Inland
- Canadian POE
- Overseas (i.e. visa office)
The person subject to the hearing is *compellable* witness >> they __ __ __ __
must answer the question(s)
The IAD can (1) allow, (2) …or (3) stay an appeal
dismiss
Notice __ __ >> Notice to Appear
Notice of Appeal
*Designated FN* features … arrival under A20.1(1)
irregular
When determining if *H and C* grounds justify >> The IRCC officer must *NOT* rely on … evidence
extrinsic
… can*not* be appealed to the IAD
Detention reviews
The IAD’s decision is … on
(i) immigration officers in Canada
(ii) immigration officers abroad
(ii) the Immigration Division (ID)
binding (有約束力的)
Case of *Removal Order Appeal*
If the appellant demonstrates compliance (服從) with the prescribed conditions throughout the stay period
>> the IAD is likely to … the appeal
allow
Border guards work for …
CBSA
Notice of Appeal >> Notice __ __
Notice to Appear
Failing to meet residency obligations >> PR has a right to appeal to …
IAD
Counsel may seek permission to withdraw
(a) from the IAD in writing at least 3 working days before the hearing
OR
(b) … at the hearing
orally
(IRCC / CBSA) is in charge of >> administration of IRPA
IRCC / Immigration, Refugees and Citizenship Canada
A person subject to an admissibility hearing has a right to retain …
counsel (專業諮詢)
(Inland / Overseas) *H and C* applications must be considered by the Minister >> more likely to have a favourable outcome
Inland
Overseas Sponsorship Appeals are made by … or …
(Canadian) Citizens or PR
One of the IAD’s jurisdiciton is to hear and decide … sponsorship appeal
overseas
… Class applies to persons with status in Canada on a temporary resident permit (TRP)
Permit Holder
The IAD has the power to … or … the appeal
allow; dismiss
The IAD has the right to refuse
*appellant’s withdrawal of appeal*
where it considers the request to be an … of process
abuse
Minister’s Appeals are made by …
(the) IAD /
Immigration Appeal Division
The default *standard of proof* is …
balance of probabilities
(IAD / FC) can *NOT* accept new evidence
FC / Federal Court
*H and C* grounds do NOT extend to (1) … and (2)
EE; PNP
Procedural Fairness is protected by the (1) Common law and (2) …
Charter (of Rights and Freedoms)
Under A173(c), almost any document can be cited as evidence at ID >> e.g. … i.e. rumours
hearsay
Per A65, a decision-maker at the IAD must first establish that the applicant is in fact a member of the family class (under R…) … it can consider H&C grounds
R117(1);
before
PR without a (i) valid PR card or (ii) … >> will NOT be able to board a plane
PRTD / PR travel document
Inland H&C “submission” is termed …
H&C application
Counsel must NOT
withdraw at the 11th hour and cause … to their clients
prejudice
Applications made on *H and C* grounds in Canada do NOT … or … enforcement of any removal order
stay; defer
Overseas H&C “submission” is termed …
H&C exemption request
CBSA would detain a FN *without warrant* if they have reasonable grounds to believe the person concerned is unlikely to appear for (iii) examination at an admissibility hearing (iv) … from Canada
removal
… persons are someone who can vouch (保證) for the person in jail
Bond
A *purpose* of *H and C* grounds is to … the rigidity of the law
mitigate
The *appellant* has to file a … to the ID member in 30 days (for most cases)
Notice of Appeal
Appeals are only re-opened when the IAD failed to observe …
(a principle of) natural justice /
procedural fairness
Allegations referred from the Minister’s Delegate (CBSA) >> … >> removal order
ID / Immigration Division
Alternative Dispute Resolution (ADR) is an optional … process
appeal
Cases that concern *refugee claimants* are held in …
private
IAD’s jurisdiction to consider 4 types of appeals
- Removal Order Appeals 2. Minister’s Appeals 3. Residency Obligation Appeals 4. Overseas Sponsorship Appeals
Hearings before the IAD are
(a) … in nature
(b) de novo, i.e. looking for new evidence
adversarial
… is in charge of >> enforcement (執行) of the IRPA/R
CBSA
A hearing before the ID is adversarial >> The Minister’s representative VS Person __ __ __ __ / his counsel
subject to the hearing
Case of *Removal Order Appeal*
If the appellant is convicted of another serious criminal offence referred to in A36(1) while on a stay
>> the stay is cancelled by operation of law and
>> the appeal is … under A68(4)
terminated
If the appeal is dismissed
>> Application for leave and __ __ to the FC can be filed within 15 days
judicial review
An admissibility hearing begins with the *exclusion of any potential witnesses* from the hearing room >> called “prevention of …”
collusion
CBSA would detain a FN *without warrant* if they have reasonable grounds to believe the person concerned (i) is inadmissible to Canada, or (ii) is a danger to the …
public
(Inland / Overseas) *H and C* applications must be examined by the Minister under A25(1)
Inland
A … is something that is *un*enforceable
stay (of removal)
The only persons with a right of *Removal Order* Appeal (before the IAD) are __
who received a sentence *in Canada*
of __ __ __ __ __
PR;
less than 6 months imprisonment
… groups* include: (1) Elderly persons (2) Pregnant women (3) Persons who are ill (4) Persons with disabilities
Vulnerable
Relevant “H and C” factor(s) considered by the IAD are termed …
Ribic and Chieu factor(s)
Appeals should be supported by
(1) documentary evidence*
(2) witnesses and __ __ __ __ __ __
the reason they are being called
Each Detention Review is a … hearing
de novo
Residency Obligation Appeals are made by …
PR(s)
Immigration Division (ID) is a quasi-judicial …
tribunal
CBSA officers carry out most arrests and supervise detentions at (a) POE, and (b) …
in Canada
… need to establish that the decision being appealed should be
(a) overturned, or
(b) stayed (if it is a removal order)
Appellants
Whenever possible, the IAD may contact counsel to facilitate __ __ of a case in order to manage the growing appeal inventory
early resolution
… sets out removal orders *against FN*
R228(1)
… has exclusive power to decide *all* inadmissibility cases against PR >> *apart from* those related to residency obligations)
ID / Immigration Division
A hearing before the ID is … >> The Minister’s representative VS Person subject to the hearing / his counsel
adversarial (對抗的)
… sets out removal orders *against PR*
R229(1)
A detainee has a right to have their __ __ at regular legislated periods
detention review
Under Article 8.4 of ICCRC Code of Professional Ethics
>> RCIC should not … the fact of having been consulted or retained
disclose
Format of Detention review
>> … hearing conducted by a Immigration Division (ID) member
Oral
A Minister’s Delegate (CBSA) may write a … report and refer the case to the ID that will determine admissibility
s. 44
