PART 1Immigration to Canada (continued)
DIVISION 7Right of Appeal (continued)
Marginal note:Minister’s Appeal
(2) In the case of an appeal by the Minister respecting a permanent resident or a protected person, other than a person referred to in subsection 64(1), if the Immigration Appeal Division is satisfied that, 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, it may make and may stay the applicable removal order, or dismiss the appeal, despite being satisfied of a matter set out in paragraph 67(1)(a) or (b).
Marginal note:Removal order
(3) If the Immigration Appeal Division dismisses an appeal made under subsection 63(4) and the permanent resident is in Canada, it shall make a removal order.
Marginal note:Decision binding
70 (1) An officer, in examining a permanent resident or a foreign national, is bound by the decision of the Immigration Appeal Division to allow an appeal in respect of the permanent resident or foreign national.
Marginal note:Examination suspended
(2) If the Minister makes an application for leave to commence an application for judicial review of a decision of the Immigration Appeal Division with respect to a permanent resident or a foreign national, an examination of the permanent resident or the foreign national under this Act is suspended until the final determination of the application.
- 2001, c. 27, s. 70;
- 2015, c. 3, s. 111(E).
Marginal note:Reopening appeal
71 The Immigration Appeal Division, on application by a foreign national who has not left Canada under a removal order, may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice.
DIVISION 8Judicial Review
Marginal note:Application for judicial review
72 (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is, subject to section 86.1, commenced by making an application for leave to the Court.
(2) The following provisions govern an application under subsection (1):
(a) the application may not be made until any right of appeal that may be provided by this Act is exhausted;
(b) subject to paragraph 169(f), notice of the application shall be served on the other party and the application shall be filed in the Registry of the Federal Court (“the Court”) within 15 days, in the case of a matter arising in Canada, or within 60 days, in the case of a matter arising outside Canada, after the day on which the applicant is notified of or otherwise becomes aware of the matter;
(c) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice;
(d) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance; and
(e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.
- 2001, c. 27, s. 72;
- 2002, c. 8, s. 194;
- 2015, c. 20, s. 52.
Marginal note:Right of Minister
73 The Minister may make an application for leave to commence an application for judicial review with respect to any decision of the Refugee Appeal Division, whether or not the Minister took part in the proceedings before the Refugee Protection Division or Refugee Appeal Division.
Marginal note:Judicial review
74 Judicial review is subject to the following provisions:
(a) the judge who grants leave shall fix the day and place for the hearing of the application;
(b) the hearing shall be no sooner than 30 days and no later than 90 days after leave was granted, unless the parties agree to an earlier day;
(c) the judge shall dispose of the application without delay and in a summary way; and
(d) subject to section 87.01, an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.
- 2001, c. 27, s. 74;
- 2015, c. 20, s. 53.
75 (1) Subject to the approval of the Governor in Council, the rules committee established under section 45.1 of the Federal Courts Act may make rules governing the practice and procedure in relation to applications for leave to commence an application for judicial review, for judicial review and for appeals. The rules are binding despite any rule or practice that would otherwise apply.
- 2001, c. 27, s. 75;
- 2002, c. 8, s. 194.
DIVISION 9Certificates and Protection of Information
76 The following definitions apply in this Division.
information means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, the government of a foreign state, an international organization of states or an institution of such a government or international organization. (renseignements)
judge means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice. (juge)
- 2001, c. 27, s. 76;
- 2002, c. 8, s. 194;
- 2008, c. 3, s. 4.
Marginal note:Referral of certificate
77 (1) The Minister and the Minister of Citizenship and Immigration shall sign a certificate stating that a permanent resident or foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, and shall refer the certificate to the Federal Court.
Marginal note:Filing of evidence and summary
(2) When the certificate is referred, the Minister shall file with the Court the information and other evidence that is relevant to the ground of inadmissibility stated in the certificate and on which the certificate is based, as well as a summary of information and other evidence that enables the person named in the certificate to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion, would be injurious to national security or endanger the safety of any person if disclosed.
Marginal note:Effect of referral
(3) Once the certificate is referred, no proceeding under this Act respecting the person who is named in the certificate — other than proceedings relating to sections 79.1, 82 to 82.31, 112 and 115 — may be commenced or continued until the judge determines whether the certificate is reasonable.
- 2001, c. 27, s. 77;
- 2002, c. 8, s. 194;
- 2005, c. 10, s. 34;
- 2008, c. 3, s. 4;
- 2015, c. 3, s. 112(F), c. 20, s. 54.
Marginal note:Conditions — inadmissibility on grounds of security
77.1 (1) If a certificate stating that a permanent resident or foreign national is inadmissible on grounds of security is referred to the Federal Court and no warrant for the person’s arrest and detention is issued under section 81, the Minister of Public Safety and Emergency Preparedness shall impose the prescribed conditions on the person who is named in the certificate.
Marginal note:Duration of conditions
(2) The prescribed conditions imposed under subsection (1) cease to apply only when
(a) the person is detained;
(b) the certificate stating that the person is inadmissible on grounds of security is withdrawn;
(c) a final determination is made that the certificate is not reasonable;
(d) the Minister makes a declaration under subsection 42.1(1) or (2) in relation to the person; or
(e) a removal order is enforced against the person in accordance with the regulations.
- 2013, c. 16, s. 25.
- Date modified: