At the request of the Canada Border Services Agency (CBSA), foreign nationals or permanent residents who are believed to have contravened the Immigration and Refugee Protection Act (IRPA) appear before the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB) for admissibility hearings. (In a limited number of cases, Citizenship and Immigration Canada (CIC) may also request an admissibility hearing.)
A person may not be able to enter or remain in Canada if the ID determines that he or she:
- has failed in some way to comply with IRPA
- is a security threat
- has violated human or international rights
- has been involved in crime or organized crime
- has engaged in misrepresentation, such as claiming a false identity
- has a health condition (in some cases)
- does not have enough money to support him or herself, or
- is accompanying an inadmissible family member
In some cases, the CBSA has the power to issue removal orders directly; that is, to send the person out of Canada, without requesting an admissibility hearing.
When the CBSA requests an admissibility hearing, it also sends the IRB a report. The report explains why it believes the person should not be allowed to enter or remain in Canada.
A member (decision-maker) will hear the review according to the IRB tribunal process. The process is adversarial. There are two opposing parties: the person believed to be inadmissible and Minister’s counsel for the CBSA (or for CIC). The admissibility hearing process is also public, so media or members of the public may attend or report on the proceedings
Minister’s counsel will say why the person should not be allowed to enter or remain in Canada. The person, or his or her counsel, will respond. After considering all the evidence, the member makes a decision and then issues an order. The order either requires the person to leave Canada or allows the person to enter or remain in Canada. Terms and conditions may be imposed. If the person was in detention, the member may order the person to remain in detention if he or she believes that the reasons for the original detention still stand.
In some cases, the person may be able to appeal the removal order to the Immigration Appeal Division (IAD) of the IRB. In some cases, the person may be able to seek permission, or leave, of the Federal Court of Canada for a judicial review of the IRB‘s decision. Minister’s counsel may also seek leave for judicial review.
Foreign nationals or permanent residents who have been detained by the Canada Border Services Agency (CBSA) for immigration reasons appear before the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB) for detention reviews. The CBSA may detain, or hold, a foreign national or permanent resident, if it has reasonable grounds to believe that the person:
- is unlikely to appear for an examination, hearing or removal
- is a danger to the public
- is inadmissible – that is, not allowed to enter or remain in Canada – for security reasons, or for violating human or international rights, or
- has not established his or her identity to the CBSA‘s satisfaction (this only applies to foreign nationals)
The person may be held in a minimum-security immigration holding centre or in a provincial correctional facility.
When the CBSA detains a person, a detention review must be held to decide whether there is reason under the Immigration and Refugee Protection Act (IRPA) to continue detention. Within 48 hours of detention (or as soon as possible afterwards), the ID will review the reasons for detention. A member (decision-maker) will hear the review according to the IRB tribunal process. The process is adversarial. There are two opposing parties: the person who is detained and Minister’s counsel for the CBSA. The detention review process is also public, so media or members of the public may attend or report on the proceedings.
The member will hear arguments from Minister’s counsel about why the person should remain detained. The person, or his or her counsel, will respond. The member may then order that the person remain in detention.
If the member orders continued detention, the person will appear for another hearing before the ID within seven days of the first review. The ID holds further hearings at least once every 30 days for as long as the person is detained. The person may ask for an early review of detention at any time, but must present new facts to justify the request. Either the detained person or Minister’s counsel may ask the Federal Court of Canada for leave, or permission, for a judicial review of any IRB decision on detention.
If the member finds that there is no longer a reason under IRPA to continue detention, then the member may order the person released. The member may also order certain terms and conditions, such as posting a bond (a cash deposit) or guaranteeing to do something, such as reporting on a regular basis to an immigration office.