The IRB — four divisions overview
Overview
The Immigration and Refugee Board (IRB) is Canada's largest independent administrative tribunal, responsible for making immigration and refugee decisions. The IRB has four divisions: the Refugee Protection Division (RPD), which hears refugee claims; the Refugee Appeal Division (RAD), which hears appeals from RPD decisions; the Immigration Division (ID), which conducts admissibility hearings and detention reviews; and the Immigration Appeal Division (IAD), which hears appeals of removal orders and sponsorship refusals.
The IRB was established by IRPA (and its predecessor legislation) as an independent body separate from IRCC and CBSA. IRB members are independent decision-makers appointed by the Governor in Council (for most positions) or by the Chairperson. They are not civil servants and are not subject to direction from the Minister on individual cases.
Legal basis
- IRPA ss 151–168 — the composition, organisation, and administration of the IRB
- IRPA Part 1, Division 2 (ss 30–75) — the jurisdiction of the ID (admissibility hearings, detention reviews)
- IRPA Part 2 (ss 96–115) — the jurisdiction of the RPD and RAD (refugee protection)
- IRPA Part 1, Division 7 (ss 63–71) — the jurisdiction of the IAD (appeals of removal orders, sponsorship refusals, residency obligation)
How it works
Division 1 — Refugee Protection Division (RPD)
The RPD determines whether a person who claims refugee protection is a Convention refugee or a person in need of protection. The RPD conducts hearings before a single member. The hearing is inquisitorial in nature — the member leads the questioning, assisted by Refugee Protection Officers (RPOs) in some cases. The standard of proof is the "reasonable chance" of persecution.
Persons in the fast-track process (designated foreign nationals or excluded persons from the Designated Countries of Origin list) have limited rights and may be heard under special procedures.
Division 2 — Refugee Appeal Division (RAD)
The RAD hears appeals from rejected RPD decisions. Appeals are generally decided on the record (paper appeals) without a hearing, unless the RAD determines that a hearing is needed to address credibility or to admit new evidence. The RAD reviews the RPD's findings on a correctness standard for legal questions and a reasonableness standard for factual findings. Persons who are designated foreign nationals or who abandoned their RPD claim do not have access to the RAD.
Division 3 — Immigration Division (ID)
The ID conducts:
- Admissibility hearings — to determine whether a person is inadmissible and whether a removal order should be issued
- Detention reviews — to review whether a person detained for immigration purposes should continue to be detained (see detention review cycle)
The ID is adversarial — the Minister (CBSA counsel) and the person/their counsel both appear. The standard for most inadmissibility findings is "reasonable grounds to believe."
Division 4 — Immigration Appeal Division (IAD)
The IAD hears four types of appeals:
- Appeals of removal orders made by the ID against permanent residents or foreign nationals who hold valid visas
- Appeals by sponsors (Canadian citizens/PRs) of refused family class sponsorship applications
- Appeals by permanent residents of decisions that they have not met the residency obligation (s 28)
- Applications by persons abroad for a determination that they are not required to leave Canada before a hearing (limited circumstances)
The IAD has jurisdiction to allow an appeal on the merits (legal or factual error) or on humanitarian and compassionate grounds. The IAD may stay a removal order on H&C grounds. Persons inadmissible on serious criminality grounds (s 36(1)) have no right of appeal to the IAD.