Many people face immigration detention hearings every day. The most common cause people are detained by the Canadian immigration authorities is because they have overstayed their visas.
The enforcement officers of Canadian Border Services Agency (“CBSA”) are in charge of detaining immigrants who will be granted a detention review hearing at a later stage.
Another common cause for facing a detention review is permanent residents of Canada who are inadmissible based on criminality.
In either case the procedure at a detention review hearing is very similar and the intention of the detention review hearing is to convince the Member of the Immigration and Refugee Board to release the immigrant.
There are several factors the Member will take into consideration before releasing a person who was detained by CBSA.
The first and most important factor is whether the person poses a flight risk, this means that the person is unlikely to go underground and they must appear when required before CBSA.
If the person is considered to be a danger to the public the Member will keep the person in detention. However, if this is not the case, then the Member will look into another important factor such as whether someone else is willing to post a bond and the relationship between the bondsperson and the detainee.
The identity of the detainee must be clear since the beginning of the hearing, otherwise the hearing may take a different path and it will be more difficult to have the person released during the first hearing.
At the hearing, the Member will do an introduction and then will outline the general information of the procedure, the Member will ask each party to introduce themselves and if there is an interpreter, the Member will ensure that the detainee can understand the interpreter.
The Representative of the Minister will usually start and then the detainee’s counsel will have the opportunity to present their argument, if this is the case then the Representative of the Minister will defend their position in a form of reply.
If a bondsperson has been proposed, this person must wait outside of the room, during the hearing, the proposed bondsperson will be called into the room and will be questioned by both the Member and the Minister’s Representative.
How to determine who is a good bondsperson and what to expect?
A bondsperson must be a Canadian citizen or a permanent resident of Canada. The bondsperson must ensure that the detained immigrant will comply with the conditions imposed by the Member of the Immigration Division. These conditions may be to report on a weekly basis, to show for an interview, etc. After a certain period of time with the conditions, you can always apply to change the conditions. For example, if you are currently reporting on a weekly basis to CBSA you could apply to report bi-weekly instead.
At the hearing, the bondsperson must prove that they are a trustworthy individual. This is proven by answering accurately to all the questions asked by the Member and the Minister’s representative.
The questions vary depending on the kind of hearing and the specific information that detained immigrant is providing to the Immigration Division.
What happens if the detainee is not released after the hearing?
If the Immigration Division makes a decision that the person must remain in detention, the person will have a second hearing within 7 days and then every 30 days until released. At the time of every hearing the procedure is very similar and the detained immigrant must prove their good intention to comply with the conditions in order to be released at some point.