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CHAPTER 11. INTRODUCTION1.1 INTRODUCTIONA person may be ordered removed from Canada by a senior immigration officer or an adjudicator if that person is inadmissible to Canada or, in other cases, is removable from Canada. A person is inadmissible to Canada if he or she is described in section 19 of the Immigration Act (the "Act")1and a person is removable from Canada if he or she is described in section 27 of the Act. Pursuant to section 70, the Act provides a right of appeal2to the Appeal Division for four categories of persons against whom a removal order,3or a conditional removal order,4has been issued. The four categories of persons are:
Where a removal order has been appealed to the Appeal Division, the execution of the removal order is stayed until the appeal has been heard and disposed of by the Appeal Division.8 1.2 JURISDICTION OF THE APPEAL DIVISION ON REMOVAL ORDER APPEALSThe grounds of appeal for all four categories of persons with a right of appeal to the Appeal Division are found in section 70 of the Act. The statutory provision which contains the two grounds of appeal for the first category of persons, that is, permanent residents or persons in possession of a valid returning resident permit, is subsection 70(1). Subsection 70(1) provides as follows: 70(1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
For the other categories of persons with a right of appeal to the Appeal Division, subsection 70(3) of the Act applies and it provides as follows: (3) An appeal to the Appeal Division under subsection (2) may be based on either or both of the following grounds:
In removal order appeals, the determination as to whether a person is a permanent resident or a person in possession of a valid returning resident permit, a Convention refugee who is not a permanent resident, a person in possession of a valid immigrant visa at the time that he or she was denied admission at a port of entry or a person in possession of a valid visitor's visa at the time that he or she was denied admission at a port of entry is a jurisdictional issue. If the person does not belong to one of these four categories, then the Appeal Division dismisses the appeal for lack of jurisdiction. If the person does come within one of these four categories, then the appeal proceeds on one or both of the grounds of appeal. For a detailed discussion of jurisdictional issues, refer to Chapters 2 to 4. It is important to note that there is a difference in the second ground of appeal between the first category of persons and the remainder of the categories. The second ground of appeal for permanent residents or persons in possession of a valid returning resident permit is based on "all the circumstances of the case" whereas for the other three categories of persons with a right of appeal to the Appeal Division the ground is "having regard to the existence of compassionate or humanitarian considerations". For a detailed discussion of the Appeal Division's discretionary jurisdiction, refer to Chapter 9. The Appeal Division also hears appeals by the Minister under section 71 of the Act from a decision made by an adjudicator at an immigration inquiry. Such appeals are not commonly seen by the Appeal Division. For a detailed discussion of section 71 appeals, refer to Chapter 12. 1.3 ATTRIBUTES OF A REMOVAL ORDER APPEALThe Appeal Division is a quasi-judicial tribunal and a court of record with the powers of a superior court as regards the matters set out in subsection 69.4(3) of the Act. It has the sole and exclusive jurisdiction to hear and determine all questions of law and fact arising in relation to removal order appeals, including questions concerning its jurisdiction. A removal order appeal is a hearing de novo in the sense that the Appeal Division can receive evidence which was not available to the senior immigration officer or the adjudicator at the time the removal order was issued.9The Appeal Division is not bound by legal or technical rules of evidence and it may receive and base its decision on evidence considered necessary and credible or trustworthy. 10As a general rule, the appeal is decided on the facts as they exist at the time of the hearing. 1.4 REMEDIESThe Appeal Division may allow or dismiss a removal order appeal or it may direct that the execution of the removal order be stayed under such terms and conditions as the Appeal Division may determine.11If an appeal is allowed, then it may be allowed in law or allowed in the exercise of the discretionary jurisdiction of the Appeal Division, or both. The Appeal Division does not need to give reasons for its decisions in these appeals unless so requested by either of the parties within 10 days after having been notified of the decision.12 With the leave of the Court, there can be judicial review of the Appeal Division's decision by the Federal Court-Trial Division.13
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