Removal order Appeals at the Immigration Refugee Board (Appeal Division)
By Author: Admin | September 13, 2010
Removal orders at the IRB are often held at 74 Victoria Street in Toronto. A permanent resident can be deported for actions such as committing crimes in Canada, or making a material misrepresentation under Canada’s immigration law.
A common scenario for removal orders or deportation orders based on committing a crime in Canada is where the permanent resident has been living in Canada for 10 or 20 years. For some reason, the person has remained a permanent resident, and has committed numerous crimes. This invariably triggers a deportation order and an appeal to the Immigration Refugee Board.
In a perfect world, people would obtain their Canadian citizenship as soon as they are qualified which would shield themselves from removal (but not, of course Canada’s criminal justice system).
The criteria that an Immigration Refugee Board Member employs when deciding whether or not to a stop (or in legal terms ‘stay’) a removal order includes the following:
(a) the seriousness of the offence or offences leading to the removal order;
(b) the possibility of rehabilitation or, alternatively, the circumstances surrounding the
failure to meet the conditions of admission;
(c) the length of time spent, and the degree to which the appellant is established in,
(d) the family in Canada and the dislocation to the family that removal would cause;
(e) the family and community support available to the appellant; and
(f) the degree of hardship that would be caused to the appellant by the appellant’s return to his or her country of nationality.
The challenge when dealing with clients under removal order is eliciting facts from the client, both positive and negative, in relation to the above. I try to get both the positive and negative out of the client before the hearing so as to prepare for the worst line of questioning by the opposing lawyer, who is part of the Canada Border Service Agency.
The other challenge in removal order appeals is that no one knows how the Member (i.e. the decision maker), will weigh all of the factors. Every Member brings with them their own experiences and perceptions. Usually however, the criminal offence committed is given a huge amount of weight, and the other factors are piled up against the seriousness of the offence committed. Thus, if (b) to (f) listed above are positive enough, then these can outweigh the inevitably huge amount of weight given to the factor of (a), the offence(s) committed.
Someone with a strong intuition can deduce that the criteria above is meant to safeguard Canadian society. As a citizen of Canada, I dislike criminal activity as much as the next law-abiding citizen of Canada. However, as a Canadian Immigration Lawyer, I have a duty to defend a client as vigorously as possible under the law.
I can empathize with some of the CBSA lawyers who are tasked with fighting the appeal at 74 Victoria Street. In some cases where the person being deported is part of a gang, the gang members will often show up in solidarity with their comrade who is appealing their deportation at 74 Victoria Street. This may have the effect of intimidating the CBSA lawyer. One must keep in mind that most hearing rooms at 74 Victoria Street only accommodate five or six people. They are quite intimate compared to the court rooms at the Federal Court of Canada at 180 Queen Street.
In addition there is only one set of washrooms at 74 Victoria St on the second floor where these removal order appeals are heard. One CBSA lawyer told me that she preferred to use the locked washroom on the 10th floor of 74 Victoria street during the hearing break given the quantity of comrades showing up. Police have often been called to 74 Victoria Street if the person facing removal is deemed too dangerous.
If you see a police car parked in front of 74 Victoria Street, its driver may be on the second floor..
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