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CHAPTER 1212. APPEALS BY THE MINISTER12.1 INTRODUCTIONPursuant to section 71 of the Immigration Act (the "Act"), the Minister may appeal to the Appeal Division from a decision made by an adjudicator in the course of an inquiry. The grounds of appeal are on questions of law, fact, or mixed law and fact. 12.1.1. Relevant Legislative ProvisionsThe Act provides as follows:
12.2. IMMIGRATION INQUIRIESAppeals from decisions of an adjudicator come from two types of inquiries, those arising inland and those arising at the port of entry. 12.2.1. Port-of-Entry InquiriesThe purpose of the port-of-entry inquiry is to determine whether a person, other than a person described in subsection 4(1)1 or 4(3)2 of the Act who is seeking to come into Canada is admissible. If an immigration officer at the port of entry is of the opinion that a person seeking to come into Canada is inadmissible,3 the officer must either allow the person to leave Canada or prepare a written report.4 The report is then submitted to a senior immigration officer (SIO) who reviews the report. Sections 22 and 23 set out the powers of an SIO upon reviewing the section 20 report: these include allowing a person to come into Canada or granting landing to an immigrant, allowing the person to leave Canada forthwith, making an exclusion order against the person, or causing an inquiry to be held. Except for certain circumstances, where an SIO believes a person is inadmissible, but does not make an exclusion order (or a conditional departure order in the case of persons claiming refugee status), the SIO must cause an inquiry to be held as soon as is reasonably practicable, or allow the person to leave Canada forthwith.5 If an inquiry is held and the adjudicator does not issue the order sought by the Minister's representative at the inquiry, the Minister may appeal that decision to the Appeal Division under section 71 of the Act. 12.2.2. Inland InquiriesThe purpose of the inland inquiry is to determine whether a person, other than a person described in subsection 4(2)6, 4(2.1)7 or 4(3) of the Act and who is already in Canada has contravened the Act and should be removed from Canada. The grounds for removing a person who is in Canada are different from those for refusing admission to Canada. The grounds that apply to inland cases are set out in subsections 27(1) and 27(2) of the Act. Subsection 27(1) applies only to permanent residents, and subsection 27(2) applies only to persons in Canada other than Canadian citizens and permanent residents. The process for bringing a person who is in Canada to inquiry is also different from that for a port-of-entry case. An inland inquiry may arise either as a result of a report and a direction for inquiry, or as a result of an arrest without a warrant. If the adjudicator at an inquiry does not issue the order sought by the Minister's representative, the Minister may appeal that decision to the Appeal Division under section 71 of the Immigration Act. 12.2.2.1 Inquiries as a Result of Report and DirectionAn immigration officer (IO) or a peace officer must forward a written report to the Deputy Minister (DM) where the IO has information that a person is described in subsection 27(1) or 27(2) of the Immigration Act. However, an exception is made where a person is arrested and detained without a warrant.8 In that case a report need not be written. The DM (or the DM's delegate) will review the report and determine whether or not an inquiry is warranted. Where the DM considers that an inquiry is warranted, the DM sends a copy of the report and a direction for inquiry to the SIO.9 The SIO must then cause an inquiry to be held as soon as is reasonably practicable.10 Permanent residents may not be arrested and detained for inquiry without a warrant. Hence, inquiries concerning permanent residents always arise as a result of a report and a direction for inquiry.11 Consequently, such cases are always assessed by the DM (or the DM's delegate) to determine whether an inquiry is warranted. 12.2.2.2 Inquiries as a Result of Arrest without a WarrantIn certain limited circumstances a person in Canada, other than a Canadian citizen or permanent resident, may be arrested and detained for inquiry, without a warrant.12 In this case, if neither a departure order pursuant to section 27(4) nor a conditional departure order under section 28(1) is made, or if the person is not allowed to remain in Canada, the SIO must cause an inquiry to be held as soon as reasonably practicable.13 12.3. REMOVAL ORDERSA removal order means a departure order, an exclusion order or a deportation order.14 The adjudicator may make different types of orders depending on the nature of the inquiry.15 If an inquiry arises at a port of entry, the adjudicator may make either a deportation order or an exclusion order may be made by the adjudicator. In the case of a person who claims to be a convention refugee, and whose claim has been referred to an SIO for a determination of whether the person is eligible to make such a claim, or to the Convention Refugee Determination Division of the Immigration and Refugee Board for a determination of the claim, the adjudicator may make either a conditional deportation order or a conditional departure order. The type of order that an adjudicator may make depends on the ground of inadmissibility. In the case of inland inquiries, the adjudicator may make either a deportation order or a departure order. In some cases, a deportation order is mandatory. In other cases, an adjudicator may, where appropriate, make a departure order. Once again, where a person makes a claim to be a Convention refugee, the deportation order or departure order is conditional. 3>12.4. ISSUES PERTAINING TO ADMISSIBILITY OR REMOVAL FROM CANADAVarious issues arise before the Appeal Division when the Minister appeals the decision by an adjudicator that a person who was the subject of an inquiry is a person who may be granted admission into Canada or should not be removed from Canada. Some of the more common issues that have arisen in appeals by the Minister pursuant to section 71 of the Immigration Act include:
12.5 NATURE OF A SECTION 71 HEARINGThe onus of proof at an inland inquiry and in a section 71 appeal before the Appeal Division rests with the Minister. The Minister must establish that a respondent is a person who is a member of an inadmissible class under the Act or the Regulations, or is a person described in subsection 27(1) or 27(2) of the Act. The Appeal Division has approached appeals pursuant to section 71 in much the same manner as it hears and determines appeals under section 70 and subsection 77(3) of the Act. A section 71 appeal is a hearing de novo, although in practice new evidence is not always led by counsel for the parties at the hearing. Counsel for the parties often rely solely on the record. The record consists of the adjudicator's decision, a transcript of the proceedings at the inquiry, a certified true copy of all documentary evidence filed at the inquiry, any written reasons given by the adjudicator for the decision, and a table of contents.23 Where either of the parties requests written reasons within 10 days after having been notified of the disposition of the appeal, the Appeal Division must give written reasons.24 12.6 THE REMEDIES AVAILABLEWhere the Appeal Division finds that the Adjudicator was correct in his or her decision on the issue of admissibility, or in his or her decision that the person who was the subject of the inquiry is not described in subsections 27(1) or 27(2) of the Act, the appeal by the Minister will be dismissed.25 If the adjudicator is found to have erred, the Appeal Division has the power to allow the appeal and make the type of order that an adjudicator presiding at the inquiry ought to have made.26 Where an appeal is allowed, the question of the appropriate type of removal or conditional removal order arises as an issue to be addressed, as the adjudicator will not have considered the question at the original inquiry. Section 71 appeals are almost always appeals from a decision of an adjudicator at an inquiry not to make a removal order. The Act provides that the Appeal Division may order that an inquiry be reopened before an adjudicator for the receiving of any additional evidence or testimony.27 However, the Federal Court of Appeal has disapproved of this practice in Labasova. 28 In Labasova, the majority of the Appeal Division had found that the adjudicator erred in thinking that the subject of the inquiry was a returning resident, since she had left Canada 17 years earlier to get married and settle in Czechoslovakia without any reasonable expectation of being able to return to Canada. However, it considered that it could not dispose of the appeal forthwith since in doing so under subsection 73(2) of the Act, it had to make the removal order which the adjudicator should have made and no evidence had been submitted in this regard. The Appeal Division therefore referred the matter back to the adjudicator to obtain further evidence. The matter came before the Federal Court of Appeal when Ms. Labasova appealed the decision of the Appeal Division. Although the Court acknowledged that the Act gave the Appeal Division the authority, in section 72, for proceeding in the manner in which it had, the Court disapproved of the practice, suggesting that given the de novo nature of Appeal Division hearings, the panel should have heard the evidence itself. 12.6.1 Type of Removal OrderIn some cases, the Appeal Division has no choice as to the nature of the removal order that must be made. For example, in an appeal by the Minister from a decision by an adjudicator, in a port-of-entry case, if the Appeal Division should find that the respondent is a member of an inadmissible class described in paragraph 19(1)(c), 19(1)(c.1), 19(1)(c.2), 19(1)(d), 19(1)(e), 19(1)(f), 19(1)(g), 19(1)(j), 19(1)(k), 19(1)(l), 19(2)(a), 19(2)(a.1), or 19(2)(b), it must issue a deportation order.29 On the other hand, if the Appeal Division finds the respondent to be described in subsection 32(7) of the Act, it has discretion as to the type of removal order it may make. The Appeal Division may issue a departure order if:
In Beeston, 31 the Federal Court of Appeal upheld the decision of an adjudicator to issue a deportation order rather than a departure notice. The Court held that the adjudicator was justified in viewing as a very important circumstance the fact that the applicant had remained in Canada illegally and without status since September 1976. However, the adjudicator did specifically consider the other circumstances of the case prior to exercising his discretion. In Lau,32 the Court considered whether the adjudicator had erred in issuing a deportation order rather than a departure notice. The adjudicator had found that Mr. Lau's "deliberate and willful actions" in overstaying beyond the term of his visitor's visa and working without an employment authorization were sufficient to outweigh the favourable circumstances in his case. The Court found that the adjudicator had erred in issuing a deportation order. In most cases of this nature, a person's conduct will have been deliberate in that the person has consciously violated the Immigration Act. In reaching a decision on the deport/depart issue, the Court stated that the adjudicator was to take all the circumstances into account. In Bredwood,33 the Court found there was no evidence whatsoever to the applicant's credit to be weighed in the balance against her willful and deliberate violation of Canadian immigration laws. Thus, the decision to make a deportation order rather than a departure notice was not subject to attack. In Stephens34the Court qualified its decision in Lau. 35 The latter case was held to stand for the proposition that it was in error for the adjudicator to conclude that by reason of the simple fact of a breach of the Immigration Act any possibility of issuing a departure notice was thereby foreclosed. 12.7 DEEMED SECTION 70 APPEALWhere an appeal is allowed and the Appeal Division makes the removal order that the adjudicator should have made, then the respondent, provided he or she would have had a right to appeal pursuant to section 70 of the Act had the adjudicator issued such an order, is deemed to have appealed to the Appeal Division pursuant to paragraph 70(1)(b) or 70(3)(b) of the Act, whichever is applicable.36 The appeal division may dispose of this appeal at the same time that the section 71 appeal is heard.
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