Staying Removal at the IAD

People issued removal orders often want to know how long they can stay in Canada before they have to leave, and if there is a chance to defer removal.  There are many ways that removal orders are stayed, as shown in the following internal CIC data.

A-2014-14123

Section 48 of the Immigration and Refugee Protection Act (the “IRPA“) provides that:

Enforceable removal order

48. (1) A removal order is enforceable if it has come into force and is not stayed.

Effect

(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.

In a previous post, I discussed s. 48(2) of the IRPA, and how the term “reasonably practicable” has been interpreted.  In this post, I will discuss s. 48(1), and the principles behind a “stay of removal”.

The Ribic Factors

In determining whether to issue a stay of removal for a permanent resident, the Immigration Appeal Division (the “IAD“) can consider humanitarian & compassionate factors.  The leading case on this matter is Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.D.D. No. 636, affirmed by the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84.

In Ribic, the IAD noted that:

In each case the Board looks to the same general areas to determine if having regard to all the circumstances of the case, the person should not be removed from Canada.  These circumstances include the seriousness of the offence or offences leading to the deportation and the possibility of rehabilitation or in the alternative, the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order.  The Board looks to the length of time spent in Canada and the degree to which the appellant is established; family in Canada and the dislocation to that family that deportation of the appellant would cause; the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return to his country of nationality.  While the general areas of review are similar in each case the facts are rarely, if ever, identical.

Accordingly, the Ribic factors are:

a.         the seriousness of the offences leading to the deportation order;

b.         the possibility of rehabilitation;

c.         the length of time spent in Canada and the degree to which the appellant is established here;

d.         the family in Canada and the dislocation to the family that deportation would cause;

e.         support available to the appellant, within the family and within the community; and

f.           potential foreign hardship the appellant will face in the likely country of removal.

These factors are not exhaustive.

If you are a permanent resident who faces removal, it is important that you apply the circumstances of your situation to these factors, and present convincing humanitarian & compassionate considerations to stay removal.

IAD Stay of Removals

As noted in the table above, the most common reason that a removal order is stayed is because of an “IAD Stay.”  IRPA s. 68 provides that:

Removal order stayed

68. (1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.

Effect

(2) Where the Immigration Appeal Division stays the removal order

(a) it shall impose any condition that is prescribed and may impose any condition that it considers necessary;

(b) all conditions imposed by the Immigration Division are cancelled;

(c) it may vary or cancel any non-prescribed condition imposed under paragraph (a); and

(d) it may cancel the stay, on application or on its own initiative.

Reconsideration

(3) If the Immigration Appeal Division has stayed a removal order, it may at any time, on application or on its own initiative, reconsider the appeal under this Division.

Termination and cancellation

(4) If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.

IRPA s. 68 stays are typically only used where the inadmissibility pertains to criminality. It is uncommon in other inadmissibility cases, such as misrepresentation. As the Federal Court  in Li v. Canada (Citizenship and Immigration):

This use of the stay authority in criminality cases reflects the fundamental distinction between post admission criminal conduct, where there remains a valid and legitimate initial admission decision, and misrepresentation cases where the initial admission decision itself was reached in error as a result of the misrepresentation. In cases of criminality the IAD may exercise the H&C discretion provided for in subsection 68(1) of IRPA to stay a removal order and allow the individual to demonstrate they are unlikely to reoffend. This consideration does not normally arise in misrepresentation cases where there is no incentive to reoffend so long as one is allowed to remain in Canada. In other words it is the circumstances surrounding the misrepresentation that led to the finding of inadmissibility that is of greater relevance in cases of misrepresentation, not the possibility of rehabilitation.

The Tripartite Test

The Federal Court will only order a stay of a removal if:

  1. the underlying application for leave and judicial review raises a serious issue;
  2. the moving party will suffer irreparable harm if the stay is not granted and the removal order is executed; and
  3. the balance of convenience lies in favour of the moving party.

 


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