Challenging ID Release Orders: The Minister’s Call of Duty

The Immigration Division (ID) of the Immigration and Refugee Board (IRB) deals with two matters -admissibility hearings and detention reviews.

Detention reviews are about balancing the liberty interests of the individual against the interests of society. However, and sometimes (luckily, not that often) even if you succeed in securing your client’s release, it’s not the end of the matter/battle.

When the ID orders the release of a permanent resident or foreign national from immigration detention under section 58(1) of the Immigration and Refugee Protection Act (IRPA), the Minister has the right to challenge that decision in the Federal Court. For practitioners representing detainees, navigating this process requires a thorough understanding of a highly compressed, multi-stage stay procedure governed by the Federal Court’s Consolidated Practice Guidelines.

This procedural pathway, as illustrated by recent litigation handled by our firm, operates as follows:

The Immediate Trigger: Seeking an Urgent “Interim” Stay

If the ID orders a detainee’s release and the Minister intends to seek judicial review, the Minister’s counsel will immediately contact the Federal Court Registry and the respondent’s counsel to advise of an impending stay motion.

To prevent the immediate physical release of the individual while formal motion records are being prepared, the Minister must first obtain an urgent interim stay of the release order (often called an “interim interim stay” by practitioners).

Initiation via the Rule 35(2) Letter

Unlike standard motions, the Minister initiates the urgent interim stay request by way of a letter to the Court under Rule 35(2) of the Federal Courts Rules.

This letter must set out the key background facts, identify the specific grounds for challenging the release, and provide a concise summary of the arguments showing how the Minister meets the tripartite stay test. The letter typically asks the Court to dispense with a full motion record at this early stage and to grant an interim stay of approximately 8 to 10 days. It is typically accompanied by an unfiled ALJR.

The Respondent’s Written Opposition

Upon receipt of the Minister’s Rule 35(2) letter, counsel for the detained person (now the respondent) must immediately advise the Court and the Minister of their client’s position.

The respondent’s counsel must quickly prepare and file a written response opposing the interim stay. Effective opposition requires a strong defence of the ID’s decision on the merits — demonstrating that the ID’s findings of fact are well-reasoned, that the proposed release plan is appropriately restrictive/comprehensive, and that any risks identified by the Minister are adequately addressed by the proposed conditions.

The Videoconference Hearing and Decision

When an interim stay request is opposed, the Federal Court will endeavour to schedule an expedited remote hearing, usually by videoconference and typically lasting under an hour. This can be at any hour, and counsel may well be talking to the Court into the evening or even later hours.

If a hearing cannot be arranged promptly, the Duty Judge may decide the matter on the written materials alone, balancing the detainee’s liberty interests against procedural fairness. To assist the Court, the ID is required to provide an audio recording of the detention review within 24 hours of the release order and a written transcript of the oral decision within four business days. Indeed, the MC at the hearing will often advise the Member of their intention to go down this path.

The Effect of an Interim Stay and Transition to the Interlocutory Stage

If the Court grants the interim stay, the release order is suspended and the individual remains in detention.

The Court will then set a date — ordinarily within seven days — for a full hearing on the interlocutory stay motion. Before that hearing, the Minister must file an Application for Leave and for Judicial Review (if not already done) and serve a complete Applicant’s Motion Record. The respondent must then file their Motion Record with affidavits and written representations.

Defending the ID’s Decision: Flipping the Scripts

At both the interim and interlocutory stages, the usual dynamic is reversed. Rather than challenging a negative tribunal decision, respondent’s counsel is defending a favourable ID decision.

In written representations, counsel should stress that the ID’s assessments of the proposed bondspersons and release plan are findings of fact entitled to a high degree of deference on judicial review.

The Elevated Stay Threshold
Because granting a stay of a release order effectively gives the Minister the ultimate remedy (continued detention) pending judicial review, respondent counsel should argue that the Court should apply an elevated threshold on the “serious issue” branch of the stay test. Under this approach, the Minister must demonstrate more than a merely arguable case — they must show a strong likelihood of success on the merits of the underlying judicial review application. Bear in mind the divergence in the case law with Justice Norris and Justice Zinn in disagreement with the appropriate standard/threshold for serious issue.

Detention reviews can approach the wild wild west in terms of litigation; a stay/JR of a release order complicates things to another degree/dimension.