IAD Removal Order Appeals

The Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (IRB) hears appeals from removal orders made against certain foreign nationals and permanent residents. A removal order appeal to the IAD is a full merits review — the IAD considers not only whether the removal order was lawfully made, but also whether there are sufficient humanitarian and compassionate reasons to stay or set aside the order.

The right of appeal to the IAD from a removal order is established in IRPA s 63. The IAD's powers to allow an appeal or grant a stay are set out in s 67 (allowing the appeal) and s 68 (staying the removal order). The IAD's jurisdiction is excluded for persons found inadmissible on grounds of serious criminality (sentence of two years or more), organized criminality, security, or human rights violations: IRPA s 64.

Who can appeal a removal order

The following persons may appeal a removal order to the IAD, subject to the exclusions in s 64:

• Permanent residents against whom a removal order is made;
• Protected persons against whom a removal order is made;
• Convention refugees who have been determined to be inadmissible on grounds that lead to a removal order;
• Foreign nationals who hold a permanent resident visa and are refused entry at a port of entry.

Who cannot appeal: Persons found inadmissible on grounds of serious criminality (sentenced to two or more years), security grounds, violating human or international rights, or organized criminality have no right of appeal to the IAD under s 64.

Filing the appeal

A notice of appeal must be filed at the IAD within 30 days of the removal order being made. Filing the notice of appeal automatically stays the removal order while the appeal is pending (s 49(1)(b)), unless the stay is lifted by the IAD or the appeal is abandoned or withdrawn.

Grounds for allowing the appeal (s 67)

The IAD may allow a removal order appeal on the following grounds:

• The decision appealed was wrong in law, fact, or mixed law and fact; or
• There exist sufficient humanitarian and compassionate considerations to warrant special relief.

The H&C assessment at the IAD considers the Ribic/Chieu factors: seriousness of the conduct, possibility of rehabilitation, length of residence, establishment in Canada, family ties, hardship to the appellant and family, and support in the community. These factors are not a checklist — the IAD weighs them holistically.

Stay of removal (s 68)

Instead of allowing the appeal outright, the IAD may stay the removal order for a specified period with conditions. A stay is appropriate where there are H&C factors that do not yet justify allowing the appeal, but where the person deserves an opportunity to demonstrate rehabilitation or address the conduct that led to the order. Breach of stay conditions can lead to the stay being lifted and removal proceeding.

Judicial review

Negative IAD decisions may be challenged by judicial review in the Federal Court within 15 days (inside Canada), subject to leave being granted.