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 Canadian Immigration and Refugee Law for Legal Professionals, 5e

CHAPTER 15
Immigration Division: Immigration
Hearings and Detentions

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 3

Learning Outcomes
• Describe the immigration process.
• Describe the grounds for detaining a foreign national
or permanent resident under the Immigration and
Refugee Protection Act.
• Summarize the main activities of the Immigration
Division (ID).
• Explain the process for initiating an immigration
hearing before the ID.
• Describe the role of participants at ID proceedings.
• Find your way around the Immigration Division Rules.
• Identify important timelines for detention reviews.
• Distinguish among the various removal orders.
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CBSA Enforcement Activities

• Immigration investigations

• Detentions and/or monitoring conditions of release

• Hearings

• Removals

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Figure 15.1 Stages in the Immigration

Enforcement Process

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Immigration Enforcement

Inadmissibility Reports Arrest and Detention

• Port of Entry • Permanent resident, foreign
• Admit, allowed to leave national if reasonable grounds to
voluntarily, report and believe inadmissibility on serious
detain, or report and allow grounds
temporary admittance • Detention hearing within 48
• After admission hours
• Report where there are • Port of Entry
• Within Canada (after
reasonable grounds to
admission)
believe there is an
* Detention rules different for
inadmissibility allegation
Designated Foreign Nationals
• Refer for hearing
(DFN), children
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 7

Onus of Proof
• Who bears the onus of proof?
• Depends on whether the PC has legal status in Canada
• If the PC was denied the right to enter Canada:
• No legal status, so onus is on the PC to prove
admissibility
• If the PC was allowed to enter Canada and is later
alleged to be inadmissible:
• The onus is on the minister to prove that the PC is
inadmissible
• Standard of proof:
• Reasonable grounds to believe
• Probable grounds

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 8

Arrest and Detention

PC’s Rights
• to know the reason for the arrest and detention;

• to counsel; and

• to notify their government representative of the

arrest or detention

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Table 15.1 Admissibility and Detention Review

Steps at a Glance

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Proceedings Before the Immigration Division

• Admissibility Hearings
• Detention Reviews
• Proceedings are:
• Held in public
• Recorded
• In English or French (interpreters are available)
• Adversarial
• Parties may include:
• Member
• Interpreter
• Minister’s Counsel
• Counsel for Person Concerned
• Witnesses
• Designated representative

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 11

Know and Follow the Rules

• Immigration Division Rules
• Part 1—Rules Applicable to Admissibility Hearings
• Part 2—Rules Applicable to Detention Reviews
• Part 3—Rules That Apply to Both Admissibility Hearings and
Detention Reviews
• See Appendix 15.1
• Chairperson’s Guidelines
• Guideline 2—Detention
• Guideline 6—Scheduling and Changing the Date or Time of a
Proceeding
• Guideline 8—Concerning Procedures with Respect to
Vulnerable Persons Appearing Before the Immigration and
Refugee Board of Canada

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Admissibility Hearings
• ID jurisdiction to hold an admissibility: from minister’s referral
• Minister must provide: (ID, r 3)
• Inadmissibility report
• PC’s name, contact information, date of birth, immigration
status, marital status, etc.
• Language of record and language of the interpreter
• Decision on Admissibility—possible outcomes:
• Recognize right to enter Canada
• Grant permanent resident or temporary resident status
• Allow to enter Canada for further examination
• Make applicable removal order

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 13

Detention Reviews
• There is no limit to the amount of time that a
person may be in immigration detention as long as
there is a periodic review held.
• What is the timing of detention reviews?
• Is it the same for a DFN or for a person held on a
security certificate? Discuss.

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