Articles

The Immigration and Refugee Protection Act, Are there any appeal rights left?

These materials were prepared by Andrew Z. Wlodyka of Lowe & Company, Vancouver, B.C. for the Continuing Legal Education Seminar organized by the Canadian Bar Association, Immigration Section, October 10, 2002 , Simon Fraser University at Harbour Centre, Vancouver , British Columbia .

This paper is written because of the proclamation of the Immigration and Refugee Protection Act (IRP Act) and Regulations on June 28, 2002 . This proposed legislation and regulations are influenced very much by the events of September 11, 2001 with a strong focus on security concerns. The purpose of the paper is to provide a brief review of the appeal rights available under the Immigration and Refugee Protection Act and Regulations. My colleague Sandra Weafer of the Immigration Section of the Department of Justice will deal separately with the question of judicial review under the IRP Act and Regulations and Federal Court Immigration Rules.

I INTRODUCTION

The Canadian Government had prepublished two tranches of draft Regulations in Mid December, 2001 and March 9, 2002 . There has also been a Ministerial announcement on retroactivity on February 26, 2002 . Finally, the Parliamentary Standing Committee on Citizenship and Immigration produced a report dated May 8, 2002 in response to the prepublished draft Regulations called “ Building a Nation ” that is found at http://www.parl.gc.ca/InfoComDoc/37/1/CIMM/Studies/Reports/cimmrp04-e.htm .

The number of regulations has increased from 56 to 365.

The Immigration and Refugee Protection Act is the product of years of consultation between government officials and non-governmental groups and individuals and seeks to address inadequacies in the former Immigration Act that came into force in 1978. It has been a difficult task because of the importance that Canadians have placed on immigration policy. Reaching a consensus has not been easy because of the diverse opinions that many stakeholders have in what Canadian immigration and citizenship policy should be.

Major amendments to the law were made in 1989 and 1993. There have also been many other amendments to the Act and Regulations over the course of the last 24 years.

The Immigration and Refugee Protection Act is framework legislation. This means that it is relatively easy to read as compared to the former Immigration Act. It sets out core principles and delegates procedures, details and administrative rules to the regulations. Its impact on the immigration and Refugee Board is significant. My comments are mainly directed toward the Immigration Appeal Division.

The Immigration and Refugee Board (the IRB) is Canada 's largest administrative tribunal. It was created by an Act of Parliament in 1989 to deal with immigration and refugee matters. It replaced the Immigration Appeal Board. Under the former Immigration Act, the IRB consisted of three Divisions. They were the Convention Refugee Determination Division (CRDD), the Adjudication Division (AD) and the Immigration Appeal Division (IAD).

Under the Immigration and Refugee Protection Act (the IRP ACT), the IAD is retained as one of four Divisions instead of the former three Divisions. There is the Refugee Protection Division (RPD) that is the tribunal at first instance to determine questions of refugee protection 1 . The Refugee Appeal Division will be responsible for dealing with appeals from the decision of the RPD except from a decision that a refugee protection claim has been withdrawn or abandoned 2 . The Refugee Appeal Division has been put on hold and the legislation governing this Division has not been proclaimed. The Immigration Division (ID) will deal with questions of admissibility to Canada and review of reasons for detention 3 .

II JURISDICTION OF THE IAD

The Immigration Appeal Division (IAD) is the only Division with the powers of a superior court of record with respect to any matter necessary for the exercise of its jurisdiction including the swearing and examination of witnesses, the production and inspection of documents and the enforcement of its orders 4 . The IAD has sole and exclusive jurisdiction to hear appeals in five categories:

•  By a person who has a right to sponsor a foreign national as a member of the family class from a decision not to issue the foreign national a permanent resident visa 5 ;

•  By a foreign national who holds a permanent resident visa from a decision at an examination or admissibility hearing to make a removal order against them 6 :

•  By a permanent resident or a protected person against a decision at an examination or admissibility hearing to make a removal order against them 7 ;

•  By a permanent resident against a decision made outside Canada on the residency obligation under section 28 8 :

•  By the Minister against a decision of the Immigration Division in an admissibility hearing 9 ,

Hearings before the IAD will continue to be adversarial in nature. The Appellant and the Minister who are parties in proceedings before the IAD are entitled to be represented at their own expense by counsel who may be lawyers or other representatives 10 . An appeal before the IAD would still be a hearing de novo in a broad sense.

III HUMANITARIAN AND COMPASSIONATE CONSIDERATIONS

Under the former Immigration Act, there were three different tests for the exercise of equitable relief. The test depends on whether the case involves a removal order appeal by a permanent resident 11 , a removal order appeal by a visa holder or Convention refugee 12 or an appeal by a sponsor of a refused application for permanent residence by a member of the family class 13 .

Under the IRP Act, there is a single common test to determine humanitarian and compassionate considerations. The test involves appeals against removal orders by foreign nationals holding permanent resident visas 14 , permanent residents or protected persons 15 and persons who appeal a refusal of a sponsored application for a permanent resident visa 16 . Where the IAD has jurisdiction to allow an appeal on humanitarian and compassionate considerations, the IAD must be satisfied at the time the appeal is disposed of 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”. The writer is of the opinion that the common test for humanitarian and compassionate considerations should allow for the weighing of the impediment that led to the removal order or refusal with the particular humanitarian and compassionate considerations and any other extenuating circumstances that exist in the case 17 .

IV LOSS OF PERMANENT RESIDENCE STATUS

In loss of permanent resident status appeals under the former Immigration Act, the person would have to be found by an adjudicator to have ceased to be a permanent resident because he or she abandoned Canada as that person's place of permanent residence 18 . An appeal to the IAD against the removal order issued by the adjudicator could only be based in law. There was no jurisdiction for the IAD to consider equitable grounds under paragraph 70(1)(b) of the former Immigration Act 19 .

Under the IRP Act, there remain similar provisions to deal with the determination of whether a person loses permanent resident status in Canada 20 . The question is resolved at an admissibility hearing before the ID 21 or through an administrative removal order issued by an immigration officer delegated this authority by the Minister. An appeal from a removal order exists to the IAD 22 .

There is however a new structure for appeals against a loss of permanent resident status. The normal residency rule is that a permanent resident must be physically present in Canada for at least two years out of five 23 . Under the IRP Act, an exception from the two-year physical resident requirement is provided for permanent residents who are outside Canada for at least 2 years out of five, accompanying a Canadian citizen who is their spouse or common-law partner or in the case of a child, their parent 24 . Similar exceptions are provided for permanent residents or spouses or common-law partners or in the case of a child the parent of permanent residents who are outside Canada and employed on a full-time basis by a Canadian business or in the public service of Canada or of a province 25 .

The new appeal structure is based on the refusal by a Visa Officer overseas to renew a permanent resident card because of the alleged failure by the person to meet the residency requirement set out in the IRP Act and Regulations 26 . A permanent resident may appeal to the IAD against the above decision made outside Canada on the residency obligation under section 28 of the IRP Act 27 . In addition to any legal or natural justice ground 28 , the IAD is allowed to consider humanitarian and compassionate considerations in such an appeal 29 . An oral hearing is required in an appeal under subsection 63(4) of the IRP Act 30 . However, the permanent resident will only be allowed into Canada for the hearing if the IAD considers that his or her physical presence is necessary 31 . If such is the case, the IAD can order that the permanent resident physically appear and the visa officer is obligated to issue that person a travel document. The IAD can also consider whether the hearing can be conducted by means of live telecommunications 32 .

V LIMITATIONS TO THE IAD'S JURISDICTION UNDER THE IRP ACT

Under the IRP Act, there is a significant change in the way that rights of appeal are restricted for foreign nationals, sponsors or permanent residents. The procedure to remove the right of appeal by way of a danger opinion is changed. If the foreign national or permanent resident is found to be inadmissible on grounds of security, violation of human or international rights, serious criminality or organized criminality, there is no right of appeal to the IAD by the foreign national or their sponsor or the permanent resident 33 . It is therefore crucial to provide submissions to the Immigration Officer responsible for writing a report under subsection 44(1) of the IRP Act concerning inadmissibility under section 64 of the IRP Act setting out why such action should not be taken using the Ribic factors. In the case where the IAD has issued a stay of the removal order, a subsequent conviction for serious criminality leads to the automatic termination of the stay of the removal order 34 .

Serious criminality for the purpose of subsection 64(1) is defined in the Act to mean a crime that was punished in Canada by a term of imprisonment of at least two years 35 .

Persons who are subject to Danger Opinions under the former Act are deemed under subsection 345(2) of the IRP Regulations to be persons covered under subsection 64(1) of the Act and remain without any right of appeal to the IAD.

It is noted that under the IRP Act, unlike the former Act, there is no right of appeal provided to a visitor's visa holder against a removal order 36 .

There is no right of appeal to the IAD by the sponsor in respect to the refusal of a sponsored application for permanent residence that is based on a finding of inadmissibility on the ground of misrepresentation 37 . The only exception to this limitation of the sponsor's right of appeal is where the foreign national is the sponsor's spouse, common-law partner or child 38 .

In an important departure from the former Act, the IRP Act, restricts access to the equitable jurisdiction to sponsors who do not meet the definition of sponsor as set out in the Regulations 39 . A sponsor is defined for the purpose of sponsoring a foreign national's application for a permanent residence visa as a member of the family class or an application to remain in Canada as a member of the spouse or common-law partner in Canada class under subsection 13(1) of the IRP Act. The sponsor must be a Canadian citizen or permanent resident who

•  is at least 18 years of age;

•  resides in Canada ; and

•  has filed an application in accordance with section 130 40 .

In another departure from the former Act, the IRP Regulations do not define fiancés as a member of the family class 41 . Therefore, these persons would not have access to the IAD through a sponsor. They would have to submit an application for permanent residence on humanitarian and compassionate grounds 42 . A refusal of such an application can only be challenged by judicial review. The overseas sponsored application would have to be structured to involve a spouse, common-law partner or conjugal partner to access the Immigration Appeal Division where there is a refusal. Where a sponsored application under the Spouse or Common-law partner in Canada class is refused, there is no appeal to the IAD under subsection 63(1) of the IRP Act because there is no decision to refuse to issue the foreign national a permanent resident visa.

A significant weapon in the arsenal of counsel has been the ability to apply to reopen a removal order appeal. It could be done in two ways. First, the application to reopen could be made by reason of a breach of natural justice 43 . Secondly, the application could be made where there was a reasonable possibility 44 that as a result of the newly discovered evidence that could not have been obtained for the original hearing 45 or newly arisen evidence that was not in existence at the time of the original hearing, the IAD could change its original decision 46 .

Under the Immigration and Refugee Protection Act, there is a question whether this weapon is restricted to the situation where the IAD is satisfied that it failed to observe a principle of natural justice 47 . It can be argued that the right to reopen an appeal for new evidence cannot be taken away by implication and still remains under the IRP Act. It will be interesting to see how the IAD and the Federal Court deal with this issue.

With respect to the non-disclosure of sensitive information in a sponsorship appeal, under the former Immigration Act, the Minister could bring an application to the Federal Court of Canada to obtain an order for non-disclosure to the appellant of information obtained in confidence from the government or an institution of a foreign state or from an international organization of states where disclosure would be injurious to national security or to the safety of persons 48 .

Under the IRP Act, the procedure for non-disclosure of security or criminal intelligence information at any admissibility hearing or detention review before the ID or an appeal before the IAD would be determined in accordance with the procedure laid out in section 78 49 . It would be up to a Federal Court judge to determine if the information should be disclosed or not.

VI COMMON PROVISIONS TO ALL DIVISIONS

Hearings before the ID, the RPD and the IAD would be conducted before a single member, unless in the case of the RPD or the IAD, the Chairperson was of the opinion that a three-member panel should be constituted 50 .

A totally new provision regarding the conduct of hearings is to allow any Division including the IAD to have the hearing in the presence of the subject of the proceeding or by means of live telecommunication with the subject of the proceedings 51 . With respect to confidentiality of the proceeding, the IRP Act introduces a more comprehensive test to determine whether the proceedings should be in public or private. Under the former test, the IAD must be satisfied that there is a serious possibility that the life, liberty or security of the person will be endangered if the proceeding is held in public 52 .

Under the IRP Act, in order to hold a hearing in private, the Division seized of the matter must be satisfied as follows:

•  There is a serious possibility that the life, liberty or security of the person will be endangered if the proceeding is held in public;

•  There is a real and substantial risk to the fairness of the proceeding such that the need to prevent disclosure outweighs the societal interest that the proceeding be conducted in public;

•  There is a real and substantial risk that matters involving public security will be disclosed 53 .

Under the former Immigration Act, there was no provision for the appointment of designated representatives before the IAD in the Act. It is only found in the former IAD Rules. Under the IRP Act, the power for all Divisions to appoint a designated representative where a subject is under 18 or is unable to appreciate the nature of the proceedings is set out 54 .

With respect to abandonment proceedings, under the IRP Act, the IAD is given the power to declare a proceeding to be abandoned where the party has failed to appear, failed to provide information requested by the Division or failed to communicate with the Division when requested to do so . Under the former Immigration Act, the IAD could only declare an appeal abandoned in a removal order appeal . There was no provision dealing with the abandonment of sponsorship appeals.

A subject to proceedings before any Division of the Immigration and Refugee Board will no longer have an unfettered right to withdraw from proceedings before the Division seized of the matter. The Division could refuse to allow the applicant to do so if it considered the action to be an abuse of process . This provision is quite disturbing because a subject could be forced to continue in proceedings against his or her wishes. There is no reference to withdrawal from proceedings in the former Act as far as it concerns the IAD.

An important issue for any party to proceedings before any Division including the IAD is the matter of Reasons for Decision. The former Act provided that the IAD need only provide written reasons in removal order appeals if requested within ten days of receipt of the decision . In the case of sponsorship appeals, the obligation to provide reasons is mandatory .

Under the IRP Act, in the case of the IAD reasons for decision except for an interlocutory decision, must be provided if the person who is the subject of the proceeding or the Minister requests reasons for the decision within 10 days of notification of the decision or where the Rules provide that the IAD must provide reasons 60 . Under the proposed IAD Rules, the IAD must provide reasons in the case of a sponsorship appeal or where a stay of a removal order is granted 61 .

VII STRUCTURE OF THE IAD

In terms of appointment the Governor in Council appoints all Members except for ID members to serve in a regional or district office of the Immigration and Refugee Board. It is up to the Chairperson to assign the member to one of three Divisions of the Immigration and Refugee Board namely, the Refugee Protection Division, the Refugee Appeal Division and the Immigration Appeal Division 62 . Members of the ID are employed in accordance with the Public Service Employment Act.

Under the IRP Act, the Chairperson of the Board has the power to designate coordinating members of the IAD. There is no such provision in the former Immigration Act. The Chairperson also has enhanced power not only to issue guidelines but may also identify Immigration and Refugee Board decisions as jurisprudential guides for Members. Thus members would be required to follow these decisions unless they can be distinguished 63 .

Finally, it is noted that the IRP Act provides protection for Members of the Immigration and Refugee Board from being compelled to testify in civil proceedings in matters arising out of their Board functions that were done in good faith 64 . There is no comparable provision in the former Immigration Act.

VIII IMPACT OF THE REGULATIONS ON THE IAD

A review of the Regulations indicates that there will be an impact in the types of issues that the IAD will face in fulfilling its mandate under the IRP Act. With respect to grounds of refusal relating to a sponsor, some of the main ones include:

•  Whether a sponsor is described in section 130 65 ;

•  Whether the sponsor resides in Canada and intends to fulfill the obligations in the sponsorship undertaking with respect to a member of the family class 66 ;

•  Whether the sponsor is in default of his or her sponsorship undertaking or any support payment obligations ordered by a Canadian court 68 ;

•  Whether the sponsor has an income that is at least equal to the sponsor's minimum necessary income 69 . Minimum necessary income is defined in the Regulations 70 .

If the sponsorship application is refused, the sponsor will still have access to the humanitarian and compassionate jurisdiction of the IAD except as indicated above.

With respect to refusals concerning the member of the family class, some of the grounds include:

(a) medical inadmissibility of the member of the family class or dependants under paragraphs 38(1)(a), (b) and (c) of the IRP Act 71 . The IAD will be required to examine a new definition of “excessive demand”. In cases that come before the IAD under the former Immigration Act, where there is a refusal of the sponsored application of a spouse or child on medical grounds due to excessive demand, the impact of the exemption from the excessive demand requirement on spouses, common-law partners, conjugal partners and children have already had an impact on the exercise of the IAD's equitable jurisdiction 72 .

(b) criminal inadmissibility of the member of the family class or dependants 73 .

(c ) lack of bona fides of the relationship whether involving the sponsor's spouse, common-law partner or conjugal partner 74 or adopted child 75 ;

•  whether the foreign national who is the adopted child of a sponsor is a member of the family class;

With respect to removal order appeals, where the IAD decides to stay the removal order, it is required to impose mandatory conditions on the person against whom the order is made 76 .

IX IMPACT OF THE IAD RULES

The IAD Rules for the first time require that counsel of record seek permission from the IAD to be removed as counsel 77 . This provision goes against the jurisprudence in British Columbia where counsel are allowed the unfettered right to withdraw as counsel. Whether such withdrawal is proper in the circumstances is a matter between counsel and the Law Society of British Columbia 78 .

Similarly, a Party does not have the unfettered right to withdraw from the proceeding. The IAD may reject an application for withdrawal on the basis that the withdrawal is an abuse of process as provided in the rules 79 . Both of the above provisions are found in the Rules of all the Divisions of the Immigration and Refugee Board.

With respect to Rules that are specific to the IAD, the time limit for serving sponsorship appeal records has been reduced from 180 to 120 days 80 . This represents a further effort to reduce case processing times.

A new rule has been created to address the new appeal right created by the IRP Act for those persons outside of Canada who maintain that they are permanent residents of Canada 81 .

Finally, another key provision is a set of Rules to formalize the alternative dispute resolution system developed by the IAD to allow for more consensual resolution of disputes 82 .

X TRANSITIONAL PROVISIONS

The Members of the Immigration and Refugee Board appointed under the former Immigration Act continue in the same capacity as the Board under the IRP Act until the expiry or revocation of their respective appointments 83 .

With respect to proceedings before the IAD at the time of proclamation of the IRP Act, the transitional provisions provide that if a notice of appeal had been filed with the IAD immediately before the coming into force of the IRP Act, the appeal would be continued under the former Immigration Act by the IAD 84 .

However, it is important to note an appeal made to the IAD before the coming into force of the IRP Act shall be discontinued if the appellant has not been granted a stay under the former Immigration Act and the appeal could not have been made because of section 64 of the IRP Act 85 . It was therefore crucial to complete matters where the sponsored applicant overseas or the appellant in the case of a removal order appeal was a person who has been found to be inadmissible on grounds of security, violating human rights or international crimes, serious criminality or organized criminality 86 . If an appellant who has been found to be inadmissible on grounds of security, violating human rights or international crimes, serious criminality or organized criminality is granted a stay by the IAD under the former Immigration Act, breaches a condition of the stay, the appellant's stay would be cancelled by operation of law and the appeal terminated 87 There have been challenges launched before the IAD against the retroactive application of section 196 and section 64 of the IRP ACT. It will be interesting to see whether the legal arguments against the retroactive application of the law will find a receptive hearing before the Appeal Division and Federal Court of Canada.

Where a decision of the IAD made under the former Act is referred back to the IAD by the Federal Court or Supreme Court of Canada for determination after the coming into force of the IRP Act, the IAD must dispose of the matter under the former Act 88 .

XI SUMMARY

The IRP Act contains important new measures that the Government claims strike the right balance between enhancing rights of permanent residents and protecting the integrity of Canada 's immigration and refugee programs. The IRP Act has created and expanded grounds of inadmissibility. New tools have been given to immigration officers to hold examination and carry out the enforcement process with reduced supervision by Tribunals and Courts. These changes establish that the emphasis in the IRP Act is on enforcement and away from the protection of individual rights. In the climate created by the events of September 11, this may not seem surprising. Nevertheless, it will be critical for the Members of the Bar and the Public generally to be vigilant and point out where required that the IRP ACT has become heavy handed.

Lowe & Company
502-777 West Broadway,
Vancouver , B.C.
V5Z 4J7
Tel: (604) 875-9338,
Fax: (604) 875-1325,
E:mail: awlodyka@CanadaVisa Law.com,
Website: www.CanadaVisaLaw.com

Associate Counsel practicing in the immigration and citizenship law group. Involved in applications for permanent residence in Canada , employment, student and visitor visas, refugee claims, immigration appeals, citizenship applications and appeals, and Federal Court applications for judicial review and appeals. Former Assistant Deputy Chair, Immigration and Refugee Board, Former Chair of the Immigration Section of the Canadian Bar Association (B.C. Branch) and Chair of its Overseas Committee. Has lectured on immigration and citizenship related topics for the People's Law School , the Continuing Legal Education Society of B.C., Insight and the Immigration Law and Practice Course administered jointly by University of British Columbia Continuing Studies in conjunction with Seneca College Centre for Intercultural Communication. Associate Editor of the Immigration Law Reporter (Carswell). Has published guide about practice before the Immigration Appeal Division of the Immigration and Refugee Board. Admitted to the Bar of British Columbia in 1978.

1 Section 95 of the IRP Act.

2 Section 110 of the IRP Act.

3 Section 45 and 57 of the IRP Act.

4 Section 174 of the IRP Act.

5 Subsection 63(1) of the IRP Act.

6 Subsection 63(2) of the IRP Act.

7 Subsection 63(3) of the IRP Act.

8 Subsection 63(4) of the IRP Act.

9 Subsection 63(5) of the IRP Act.

10 Subsection 167(1) of the IRP Act.

11 Paragraph 70(1)(b) of the former Immigration Act stated: having regard to all the circumstances of the case, the person should not be removed from Canada .

12 Paragraph 70(3)(b) of the former Immigration Act stated: “having regard to the existence of compassionate or humanitarian considerations, the persons should not be removed from Canada ”.

13 Paragraph 77(3)(b) of the former Immigration Act stated: “that there exist compassionate or humanitarian considerations that warrant the granting of special relief”.

14 Paragraph 67(1)(c) of the IRP Act.

15 Subsection 68(1) of the IRP Act.

16 Subsection 69(2) of the IRP Act.

17 See KIRP Actl v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm.L.R. (2d) 229 (F.C.T.D.) where Gibson J. found that such an approach under the former Immigration Act with respect to Section 70 appeals was not appropriate in sponsorship appeals under section 77((3)(b).

18 Subsection 24(1) of the former Immigration Act.

19 Minister of Citizenship and Immigration v. Sadrudin Jessani (F.C.A. No. A-242-00), Malone, Issac, Sexton, April 27, 2001 .

20 Section 46 of the IRP Act.

21 Section 45 of the IRP Act.

22 Subsection 63(3) of the IRP Act.

23 Subsection 28(2) of the IRP Act.

24 Subparagraph 28(2)(a)(ii) of the IRP Act.

25 Subparagraphs 28(2)(a)(iii) or (iv) of the IRP Act.

26 Subsection 31(1) of the IRP Act.

27 Subsection 63(4) of the IRP Act.

28 Paragraph 67(1)(a) or (b)

29 Subsection 67(1) of the IRP Act.

30 Paragraph 175(1)(a) of the IRP Act.

31 Subsection 175(2) of the IRP Act.

32 Section 164 of the IRP Act.

33 Subsection 64(1) of the IRP Act.

34 Subsection 68(4) of the IRP Act.

35 Subsection 64(2) of the IRP Act. A key issue will be whether pretrial custody counts for the two year period. This has been raised before the IAD but not ruling has yet been made on this point.

36 Compare with paragraph 70(2)(b) of the Immigration Act.

37 Subsection 64(3) of the IRP Act.

38 Subsection 64(3), supra.

39 Section 65 of the IRP Act.

40 Section 130 of the IRP Regulations.

41 Subsection 117(1) of the IRP Regulations.

42 Subsection 25(1) of the IRP Act, Section 66 of the IRP Regulations.

43 Sandhu v. Canada (Minister of Employment & Immigration) (1987), 1 Imm.L.R. (2d) 159 (F.C.A.).

44 Castro v. Canada (Minister of Employment & Immigration) (1988), 5 Imm.L.R. (2d) 87 (F.C.A.).

45 Chan v. Canada (Minister of Manpower & Immigration) (1968) 6 I.A.C.429. (I.A.B).

46 Sandhu, supra.

47 Section 71 of the IRP Act.

48 Subsection 77(3.2) of the former Immigration Act.

49 Subsection 86(1) of the IRP Act.

50 Subsection 163 of the IRP Act.

51 Section 164

52 Section 80 of the former Immigration Act as it applies to the IAD.

53 Subsection 166(b) and (d) of the IRP Act.

54 Subsection 167(2) of the IRP Act.

Subsection 168(1) of the IRP Act.

Section 76 of the Immigration Act.

Subsection 168(2) of the IRP Act.

Subsection 69.4(5) of the Immigration Act.

Subsection 77(4) of the Immigration Act.

60 Subsection 169(e) of the IRP Act.

61 Subsection 56(1) of the Proposed Immigration Appeal Division Rules.

62 Paragraphs 153(1)(a), 159(1)(b), 159(1)(c) of the IRP Act.

63 Subsection 159(h) of the IRP Act.

64 Section 156 of the IRP Act.

65 Paragraph 133(1)(a) of the IRP Regulations.

66 Paragraph 133(b) of the IRP Regulations.

68 Paragraph 133(h) of the IRP Regulations.

69 Paragraph 133(1)(j) of the IRP Regulations.

70 Section 126 of the IRP Regulations.

71 Subsection 38(1) of the IRP Act states: A foreign national is inadmissible on health grounds if their health condition

•  is likely to be a danger to the public health;

•  is likely to be a danger to public safety; or

•  might reasonably be expected to cause excessive demand on health or social services. Please note that paragraph (c) does not apply as a ground of inadmissibility to member of the family class and to be the spouse, common-law partner or child of the sponsor within the meaning of the regulation. The IAD will also have to come to grips with a new definition of “excessive demand” found in Subsection 1(1) of the IRP Regulations. They provide that a medical officer to determine whether the costs of anticipated health or social services for that individual would likely exceed “average Canadian per capita health services and social services costs over a period of five consecutive years.” or whether a demand on health or social services” would add to existing waiting lists and would increase the rate of mortality and morbidity in Canada as a result of the denial or delay in the provision of those services” to Canadians. The terms “health services” and “social services” are also defined in the same section.

72 Mahesh, Kuldeep Kaur v. M.C.I .(IAD VA1-02975), Mattu, July 19, 2002 . where appeal allowed on humanitarian and compassionate grounds on recommendation of Minister's counsel where relationship genuine and the applicant would have been exempted from the excessive demand requirements under the IRP Act.

73 Subsections 36(1) or (2) of the IRP Act

74 Section 1 of the IRP Regulations defines “common-law partner” as an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year. Where an individual has been in a conjugal relationship for at least one year but is unable to cohabit with the person, due to persecution or any form of penal control, shall be considered a common-law partner. The issue whether a person is a common-law partner under section 1 is more complex that just whether the relationship is bona fide within the meaning of section 4 of the IRP Regulations. The same goes for a conjugal relationship. It is not defined in the Regulations.

75 Section 4 of the IRP Regulations states: For the purposes of these Regulations, no foreign national shall be considered a spouse or common-law partner or conjugal partner an adopted child of a person if the marriage, common-law partnership or conjugal partnership or adoption, is not genuine or was entered primarily for the purpose of obtaining any status or privilege under the Act. Note that under subsection 4(3) of the Immigration Regulations, 1978 that is applicable only to spouses has a two part test to determine whether the spouse should be excluded from the family class:

•  if the primary purpose of entering into that relationship was for the purpose of gaining admission to Canada , and

•  if the overseas spouse did not have the intention of residing permanently with the other spouse. This test has been replaced by a generic one-part test that will make it more difficult to have spouses, common-law partners and adopted to join their family in Canada . Thus through Regulation, the jurisprudence centered on the interpretation of subsection 4(3) of the Immigration Regulations, most notably Horbas v. Canada (Minister of Employment and Immigration) [1985] 2 F.C. 359 (T.D.) has been overruled.

76 Section 251 of the IRP Regulations states: If the Immigration Appeal Division stays a removal order under paragraph 66(b) of the Act, that Division shall impose the following conditions on the person against whom the order is made:

•  to inform the Department and the Immigration Appeal Division in writing in advance of any change of the person's address;

•  to provide a copy of their passport or travel document to the Department or, if they do not hold a passport or travel document, to complete an application for a passport or a travel document and to provide the application to the Department;

•  to apply for an extension of the validity period of their passport or travel document, if any, before it expires, and to provide a copy of the extended passport or travel document to the Department;

•  to not commit any criminal offences;

•  if they are charged with a criminal offence, immediately report that fact in writing to the Department; and

•  if they are convicted of a criminal offence, to immediately report that fact in writing to the Department and the Division.

77 Subsection 15(1) of the IAD Rules provides that counsel for the person who is the subject of appeal may request the IAD by letter to be removed as counsel of record. Counsel also must provide the letter to the person.

78 R. v. Leask [1985] B.C.J. No. 2908. Mckay J., February 28, 1985 .

79 Subsection 50(1) provides that an appellant must make an application to withdraw an appeal. Subsection 50(2) provides that if the withdrawal will have a negative effect on the integrity of the process, the IAD can reject the application as an abuse of process. An example where the party was allowed to withdraw an appeal under section 77 of the former Act was Kaur, Sukhwinder v. M.C.I . (IAD T-A0-02662), Sangmuah, July 4, 2002 . The IAD found it had the jurisdiction to prevent an abuse of process and in appropriate circumstances deny the party the right to withdraw. However, the appeal process was not the best way to deal with possible professional misconduct.

80 Section 4(4) of the IAD Rules.

81 Section 9 of the IAD Rules.

82 Section 20 of the IAD Rules.

83 Subsection 188(2) of the IRP Act.

84 Section 192 of the IRP Act. Please note that in the decision of Kershaw, Daniel Scott v. Canada (M.C.I.) (IAD VA0-0155), Boscariol, September 6, 2002 , the IAD held that section 192 of the IRP Act only applies with respect to the filing of a Notice of Appeal before the coming into force of the new Act. The filing of a Motion to Reopen that was filed but not concluded before the coming into force of the IRP Act shall be governed under the provisions of the IRP Act under section 190 of the IRP Act. Thanks go to Patricia Auron, Legal Advisor, Legal Services Vancouver, IRB for bringing the Kershaw case to my attention.

85 Section 196 of the IRP Act.

86 Subsection 64(1) of the IRP Act.

87 Subsection 68(4) of the IRP Act.

88 Subsection 350(5) of the IRP Regulations