Immigration and Refugee Protection Act (S.C. 2001, c. 27)

Material Incorporated in Regulations

Marginal note:Incorporated material

• 92 (1) A regulation may incorporate by reference the following material:

  • (a) material produced by a person or body other than the Governor in Council;

  • (b) material referred to in paragraph (a) that has been subsequently adapted or edited in order to facilitate its incorporation for the purposes of the regulation;

  • (c) material that has been developed jointly with another government or government agency for the purpose of harmonizing the regulation with other laws; and

  • (d) material that is technical or explanatory in nature, such as specifications, classifications, illustrations or graphs, as well as examples that may assist in the application of the regulation.

• Marginal note:Incorporated material — instructions

  (1.1) An instruction given by the Minister or the Minister of Employment and Social Development under this Act may incorporate by reference any material, regardless of its source.

• Marginal note:Amended from time to time

  (2) Material may be incorporated by reference on a specified date or as amended from time to time.

• Marginal note:Incorporated material is not a regulation

  (3) For greater certainty, material that is incorporated by reference in a regulation made under this Act is not a regulation for the purposes of the Statutory Instruments Act.

Marginal note:Statutory Instruments Act

93 Instructions given by the Minister or the Minister of Employment and Social Development under this Act and guidelines issued by the Chairperson under paragraph 159(1)(h) are not statutory instruments for the purposes of the Statutory Instruments Act.

Report to Parliament

Marginal note:Annual report to Parliament

• 94 (1) The Minister must, on or before November 1 of each year or, if a House of Parliament is not then sitting, within the next 30 days on which that House is sitting after that date, table in each House of Parliament a report on the operation of this Act in the preceding calendar year.

• Marginal note:Contents of report

  (2) The report shall include a description of

  • (a) the instructions given under section 87.3 and other activities and initiatives taken concerning the selection of foreign nationals, including measures taken in cooperation with the provinces;

  • (a.1) any instructions given under paragraph 10.3(1)(h.2) that establish a category of eligible foreign nationals, the economic goal sought to be supported in establishing the category and the number of foreign nationals invited to make an application for permanent residence in respect of the category;

  • (b) in respect of Canada, the number of foreign nationals who became permanent residents, and the number projected to become permanent residents in the following year;

  • (b.1) in respect of Canada, the linguistic profile of foreign nationals who became permanent residents;

  • (c) in respect of each province that has entered into a federal-provincial agreement described in subsection 9(1), the number, for each class listed in the agreement, of persons that became permanent residents and that the province projects will become permanent residents there in the following year;

  • (d) the number of temporary resident permits issued under section 24, categorized according to grounds of inadmissibility, if any;

  • (e) the number of persons granted permanent resident status under each of subsections 25(1), 25.1(1) and 25.2(1);

  • (e.1) any instructions given under subsection 30(1.2), (1.41) or (1.43) during the year in question and the date of their publication; and

  • (f) a gender-based analysis of the impact of this Act.

PART 2Refugee Protection

DIVISION 1Refugee Protection, Convention Refugees and Persons in Need of Protection

Marginal note:Conferral of refugee protection

• 95 (1) Refugee protection is conferred on a person when

  • (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons;

  • (b) the Board determines the person to be a Convention refugee or a person in need of protection; or

  • (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection.

• Marginal note:Protected person

  (2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4).

Marginal note:Convention refugee

96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

• (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or

• (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.

Marginal note:Person in need of protection

• 97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally

  • (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or

  • (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if

    • (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,

    • (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,

    • (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and

    • (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

• Marginal note:Person in need of protection

  (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.

Marginal note:Exclusion — Refugee Convention

98 A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.

Marginal note:Requirement to report

• 98.1 (1) A designated foreign national on whom refugee protection is conferred under paragraph 95(1)(b) or (c) must report to an officer in accordance with the regulations.

• Marginal note:Obligation when reporting

  (2) A designated foreign national who is required to report to an officer must answer truthfully all questions put to him or her and must provide any information and documents that the officer requests.

Marginal note:Regulations

98.2 The regulations may provide for any matter relating to the application of section 98.1 and may include provisions respecting the requirement to report to an officer.

DIVISION 2Convention Refugees and Persons in Need of Protection

Claim for Refugee Protection

Marginal note:Claim

• 99 (1) A claim for refugee protection may be made in or outside Canada.

• Marginal note:Claim outside Canada

  (2) A claim for refugee protection made by a person outside Canada must be made by making an application for a visa as a Convention refugee or a person in similar circumstances, and is governed by Part 1.

• Marginal note:Claim inside Canada

  (3) A claim for refugee protection made by a person inside Canada must be made to an officer, may not be made by a person who is subject to a removal order, and is governed by this Part.

• Marginal note:Claim made inside Canada — not at port of entry

  (3.1) A person who makes a claim for refugee protection inside Canada other than at a port of entry must provide the officer, within the time limits provided for in the regulations, with the documents and information — including in respect of the basis for the claim — required by the rules of the Board, in accordance with those rules.

• Marginal note:Permanent resident

  (4) An application to become a permanent resident made by a protected person is governed by Part 1.

Examination of Eligibility to Refer Claim

Marginal note:Referral to Refugee Protection Division

• 100 (1) An officer shall, after receipt of a claim referred to in subsection 99(3), determine whether the claim is eligible to be referred to the Refugee Protection Division and, if it is eligible, shall refer the claim in accordance with the rules of the Board.

• Marginal note:Burden of proof

  (1.1) The burden of proving that a claim is eligible to be referred to the Refugee Protection Division rests on the claimant, who must answer truthfully all questions put to them.

• Marginal note:Decision

  (2) The officer shall suspend consideration of the eligibility of the person’s claim if

  • (a) a report has been referred for a determination, at an admissibility hearing, of whether the person is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality; or

  • (b) the officer considers it necessary to wait for a decision of a court with respect to a claimant who is charged with an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years.

• Marginal note:Consideration of claim

  (3) The Refugee Protection Division may not consider a claim until it is referred by the officer.

• Marginal note:Documents and information to be provided

  (4) A person who makes a claim for refugee protection inside Canada at a port of entry and whose claim is referred to the Refugee Protection Division must provide the Division, within the time limits provided for in the regulations, with the documents and information — including in respect of the basis for the claim — required by the rules of the Board, in accordance with those rules.

• Marginal note:Date of hearing

  (4.1) The referring officer must, in accordance with the regulations, the rules of the Board and any directions of the Chairperson of the Board, fix the date on which the claimant is to attend a hearing before the Refugee Protection Division.

• Marginal note:Quarantine Act

  (5) If a traveller is detained or isolated under the Quarantine Act, the period referred to in subsections (1) and (3) does not begin to run until the day on which the detention or isolation ends.

Marginal note:Ineligibility

• 101 (1) A claim is ineligible to be referred to the Refugee Protection Division if

  • (a) refugee protection has been conferred on the claimant under this Act;

  • (b) a claim for refugee protection by the claimant has been rejected by the Board;

  • (c) a prior claim by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned;

  • (c.1) the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws;

  • (d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country;

  • (e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or

  • (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c).

• Marginal note:Serious criminality

  (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless

  • (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

  • (b) in the case of inadmissibility by reason of a conviction outside Canada, the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

Marginal note:Regulations

• 102 (1) The regulations may govern matters relating to the application of sections 100 and 101, may, for the purposes of this Act, define the terms used in those sections and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions

  • (a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture;

  • (b) making a list of those countries and amending it as necessary; and

  • (c) respecting the circumstances and criteria for the application of paragraph 101(1)(e).

• Marginal note:Factors

  (2) The following factors are to be considered in designating a country under paragraph (1)(a):

  • (a) whether the country is a party to the Refugee Convention and to the Convention Against Torture;

  • (b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture;

  • (c) its human rights record; and

  • (d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection.

• Marginal note:Review

  (3) The Governor in Council must ensure the continuing review of factors set out in subsection (2) with respect to each designated country.