Foreign nationals or permanent residents who have been detained by the Canada Border Services Agency (CBSA) for immigration reasons appear before the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB) for detention reviews. The CBSA may detain, or hold, a foreign national or permanent resident,
if it has reasonable grounds to believe that the person:
- is unlikely to appear for an examination, hearing or removal
- is a danger to the public or
If it has reasonable grounds to suspect that the person:
- is inadmissible - that is, not allowed to enter or remain in Canada - for security reasons, or for violating human or international rights, serious criminality, criminality or organised criminality
The officer is not satisfied that the person:
- has established his/her identity (this only applies to foreign nationals)
The person may be held in a minimum-security immigration holding centre or in a provincial correctional facility.
When the CBSA detains a person, a detention review must be held to decide whether there is reason under the Immigration and Refugee Protection Act (IRPA) to continue detention. Within 48 hours of detention (or as soon as possible afterwards), the ID will review the reasons for detention. A member (decision-maker) will hear the review according to the IRB tribunal process. The process is adversarial. There are two opposing parties: the person who is detained and Minister's counsel for the CBSA. The detention review process is also public, so media or members of the public may attend or report on the proceedings.
The member will hear arguments from Minister's counsel about why the person should remain detained. The person, or his or her counsel, will respond. The member may then order that the person remain in detention.
If the member orders continued detention, the person will appear for another hearing before the ID within seven days of the first review. The ID holds further hearings at least once every 30 days for as long as the person is detained. The person may ask for an early review of detention at any time, but must present new facts to justify the request. Either the detained person or Minister's counsel may ask the Federal Court of Canada for leave, or permission, for a judicial review of any IRB decision on detention.
If the member finds that there is no longer a reason under IRPA to continue detention, then the member may order the person released. The member may also order certain terms and conditions, such as posting a bond (a cash deposit) or guaranteeing to do something, such as reporting on a regular basis to an immigration office.
Detention Review Process
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- Permanent resident or foreign national is detained by the CBSA for immigration reasons.
- CBSA refers the case to the IRB - ID for a detention review within 48 hours.
- Person then appears before an ID member for a detention review.
There are two possible outcomes:
- Order for release: conditions may be imposed,
- Continued detention order:
- Another detention review is held within 7 days. This could result in an order for release or continued detention order.
- If there is continued detention, another detention review is held within 30 days and every 30 days until release.