The Immigration and Refugee Protection Act (2001), (IRPA), makes a number of provisions for appeals against decisions made under the Act. Under section 62 the Immigration Appeal Division is given competence to hear appeals. Section 63 sets out various appeal rights including the right to appeal for: those who have made applications to sponsor family members who may appeal against the decision not to issue a permanent resident visa; and foreign nationals with permanent resident visa against decisions at examination or admissibility hearings to make removal orders against them.

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The Immigration and Refugee Protection Act (2001), (IRPA), makes a number of provisions for appeals against decisions made under the Act. Under section 62 the Immigration Appeal Division is given competence to hear appeals. Section 63 sets out various appeal rights including the right to appeal for: those who have made applications to sponsor family members who may appeal against the decision not to issue a permanent resident visa; and foreign nationals with permanent resident visa against decisions at examination or admissibility hearings to make removal orders against them. The Minister may appeal to the Immigration Appeal Division against a decision of the Immigration Division in an admissibility hearing. Section 65 allows the Immigration Appeal Division to consider humanitarian and compassionate considerations when the foreign national is a member of the family class and their sponsor is a sponsor within the meaning of the regulations under the Act. Section 64 excludes the right of appeal to persons whose claims have been found inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality (see 8.11-Migration and Crime). However in relation to serious criminality the criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years

After considering the appeal the Immigration Appeal Division, under section 66, shall allow the appeal, stay the removal order, or dismiss the appeal. In order to allow the appeal the Immigration Appeal Division must be satisfied under section 67 that the decision was wrong in law or fact, or mixed law and fact; a principle of natural justice has not been observed; or, other than in the case of an appeal by the Minister, 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. If the Immigration Appeal Division allows an appeal they may set aside the original decision, including a removable order, and substitute it for their own determination, which may include referring the decision back to the original decision maker for reconsideration. If an appeal is not allowed or a removal order not stayed it is dismissed under section 69(1).

Under section 110, persons who have applied for refugee protection or the Minister may appeal to the Refugee Appeal Division against a decision of the Refugee Protection Division, on a question of law, of fact or of mixed law and fact. The appeal is without a hearing, on the basis of the proceedings of the Refugee Protection Division, with written submissions from the Minister, the person who is the subject of the appeal, a representative or agent of the United Nations High Commissioner for Refugees, and any other person described in the rules of the Board. Under section 111 the Refugee Appeal Division may confirm the determination of the Refugee Protection Division; set aside the determination and substitute its own determination or refer the matter to the Refugee Protection Division for re-determination, giving appropriate directions if it is of the opinion that a hearing is required or if it has allowed an appeal by the Minister based on a question of the claimant's credibility.

Judicial review against a decision, determination or order made under the Act may be sought under section 72 of the IRPA, although rights of appeal under the Act must first be exhausted. The Minister may also seek judicial review of a decision whether or not he took part in earlier proceedings.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

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