Section 67 — Grounds for appeal
Text of provision
(1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,
(a) the decision appealed is wrong in law or fact or mixed law and fact;
(b) a principle of natural justice has not been observed; or
(c) other than in the case of an appeal by the Minister, 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.
(2) If the Immigration Appeal Division allows the appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker for reconsideration.
Plain English
Section 67 allows the IAD to allow a removal order appeal on three grounds:
- the decision is wrong in law, fact, or mixed law and fact;
- a principle of natural justice was not observed; or
- sufficient humanitarian and compassionate considerations warrant special relief, having regard to the best interests of any child directly affected.
The third ground is the most commonly invoked in removal order appeals — even if the inadmissibility finding is correct in law, the IAD may stay or set aside the removal order based on compelling H&C factors.
Practical effect
The humanitarian and compassionate ground in s 67(1)(c) gives the IAD broad equitable jurisdiction. Factors considered include: length of residence in Canada, degree of establishment, family ties, evidence of rehabilitation, hardship of return, and best interests of children. There is no exhaustive list — all relevant factors are weighed.
Where the IAD allows an appeal on H&C grounds rather than legal grounds, it typically imposes terms and conditions (under s 68) rather than setting the removal order aside outright.