Regarding deportation Canada allows you to appeal the removal order
Anyone in Canada can be deported except Canadian citizens. In order to avoid deportation Canada provides people with an opportunity to appeal the removal order.
Permanent residents, refugees or foreign nationals in Canada may become a subject to deportation due to criminality reasons, failure to comply with residency obligations or refused sponsorship applications.
There are different types of removal orders:
- Departure Order
- Exclusion Order
- Deportation Order
The most serious and undesired is a deportation order. This is because the person to whom the removal order was issued is not allowed to return to Canada on a permanent basis, unless this person obtains an Authorization to Return to Canada (ARC).
In most cases, the deportation order can be avoided if the foreign nationals who received either departure or exclusion order comply with the requirements of the previous order.
Refugee claimants are issued a conditional departure order immediately. The conditional departure order automatically turns into a deportation order 30 days after the refugee claim is denied.
An exclusion order is usually issued on the grounds of immigration violation that does not include criminality, security or human rights violation. In order to overcome the exclusion order, the individual should apply for an Authorization to return to Canada (ARC).
Under any circumstances, it is better to prevent deportation Canada. However, if the foreign national receives the removal order, it can be appealed either to the Immigration Appeal Division (IAD) or to the Federal Court of Canada.
The appeal to the Immigration Appeal Division (IAD) will be allowed if:
- the decision being appealed was wrong in law or fact,
- there was a breach of a principle of natural justice (for example, a breach to the right to be heard or to be heard by an impartial person), or
- on the basis of humanitarian and compassionate considerations.
If you found inadmissible to appeal to the IAD, you can further apply to the Federal Court for judicial review of your decision. The reasons for inadmissibility to Canada might include:
- a serious criminal offence punished in Canada by a term of imprisonment of at least six months
- involvement in organized crime
- security grounds, or
- violations of human or international rights
Section 228 (1) of the Immigration and Refugee Protection Regulations (IRPR) specify the details of issuing the removal order:
- 228 (1) For the purposes of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be
- (a)if the foreign national is inadmissible under paragraph 36(1)(a) or (2)(a) of the Act on grounds of serious criminality or criminality, a deportation order;
- (b)if the foreign national is inadmissible under paragraph 40(1)(c) of the Act on grounds of misrepresentation, a deportation order;
- (b.1)if the foreign national is inadmissible under subsection 40.1(1) of the Act on grounds of the cessation of refugee protection, a departure order;
- (c)if the foreign national is inadmissible under section 41 of the Act on grounds of
- (i)failing to appear for further examination or an admissibility hearing under Part 1 of the Act, an exclusion order,
- (ii)failing to obtain the authorization of an officer required by subsection 52(1) of the Act, a deportation order,
- (iii)failing to establish that they hold the visa or other document as required under section 20 of the Act, an exclusion order,
- (iv)failing to leave Canada by the end of the period authorized for their stay as required by subsection 29(2) of the Act, an exclusion order,
- (v)failing to comply with subsection 29(2) of the Act as a result of non-compliance with any condition set out in section 184 or subsection 220.1(1), an exclusion order, or
- (vi)failing to comply with the requirement under subsection 20(1.1) of the Act to not seek to enter or remain in Canada as a temporary resident while being the subject of a declaration made under subsection 22.1(1) of the Act, an exclusion order;
- (d)subject to paragraph (e), if the foreign national is inadmissible under section 42 of the Act on grounds of an inadmissible family member, the same removal order as was made in respect of the inadmissible family member; and
- (e)if the foreign national is inadmissible on grounds of an inadmissible family member in accordance with paragraph 42(2)(a) of the Act, a deportation order.
- Marginal note: Subsection 44(2) of the Act — permanent residents
(2) For the purposes of subsection 44(2) of the Act, if a removal order is made against a permanent resident who fails to comply with the residency obligation under section 28 of the Act, the order shall be a departure order.
- Marginal note: Eligible claim for refugee protection
(3) If a claim for refugee protection is made and the claim has been determined to be eligible to be referred to the Refugee Protection Division or no determination has been made, a departure order is the applicable removal order in the circumstances set out in any of subparagraphs (1)(c)(i) and (iii) to (v).
- Marginal note: Reports in respect of certain foreign nationals
(4) For the purposes of subsection (1), a report in respect of a foreign national does not include a report in respect of a foreign national who
- (a)is under 18 years of age and not accompanied by a parent or an adult legally responsible for them; or
- (b)is unable, in the opinion of the Minister, to appreciate the nature of the proceedings and is not accompanied by a parent or an adult legally responsible for them.
Who is entitled to deport people?
Regarding deportation Canada Border Services Agency or Immigration and Refugee Board of Canada have the jurisdiction to issue removal orders, stating that the person cannot legally remain in Canada.
How to avoid deportation Canada?
The negative consequences of the removal order might be avoided if you appeal the negative decision to either to the Immigration Appeal Division (IAD) or to the Federal Court of Canada.
Important considerations concerning appealing removal order to the Federal Court
1) If IAD dismisses the appeal, a person under the removal order or an RCIC member who is representing this person can appeal to the Federal Court of Canada to review the IAD decision.
2) In order to challenge the removal order refusal at the Federal Court, the Appellant has to be granted the Court’s permission or “leave” for the decision to be reviewed by the Federal Court of Canada. If the Leave is granted, a hearing will be scheduled.
3) The decisions which were made by the Immigration Refugee Board (IRB) will be automatically placed on hold when you apply for a judicial review at the Federal Court of Canada. If the Federal Court accepts the appeal, it will be returned to the IAD to be reassessed.
More information on appealing a removal order to the Federal Court please click here.
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