In certain circumstances, the Canada Border Services Agency (CBSA) is given the legal authority to detain a permanent resident or a foreign national; for example, if the immigration officer is not satisfied with the identity of the person concerned, he or she may choose to detain a person in an immigration facility designed particularly for this purpose.
These facilities are commonly referred to as “detention centres” which are essentially minimum-security immigration holding centres.
A permanent resident or a foreign national who has been detained by the CBSA for immigration reasons has the right to an independent hearing before a member of the Immigration Division which is responsible for reviewing the reasons for detention. Once the person is detained, the CBSA must notify the Immigration Division (ID) of the Immigration and Refugee Board (IRB) of the person’s detention.
The detainee is then given the right to appear before a member of the Immigration Division (a decision-maker) who has the responsibility of reviewing the legality of the detention within 48 hours from the initial decision to detain. This is called a “detention review” hearing, which is very similar to bail hearings in criminal matters.
The person detained must either show that he is being illegally detained or that there is no need for his/her continued detention because s/he will abide by all directions and orders for subsequent reporting or appearance as required by CBSA or Citizenship and Immigration Canada. The detained person is given the opportunity to retain and instruct a lawyer who will represent him at the detention review hearing.
If the detention is legal and the person wants to be released, s/he is commonly required to bring to the hearing a trusted person (normally a family member or close relative) who is willing to act as a “bond person” by posting bond, the amount of which varies depending on the circumstances.
Generally speaking, s/he must also show that: s/he is capable and trustworthy enough to abide by all conditions of release; that s/he will report as directed by the relevant authorities, and that s/he is not a flight risk.
If the ID member decides your detention must continue, you will be given another detention review hearing in 7 days and subsequently every 30 days. If you believe the decision to not release you is wrong or unfair, you have the right to appeal that decision to the Federal Court and having it reviewed by the court. For further information in this regard, please visit the “Appeals to the Federal Court” section of our website.
The detention review hearings are subject to strict regulatory and evidentiary rules and the detained person would be well advised to obtain advice and retain the services of an experienced immigration counsel.
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