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

Act current to 2024-05-01 and last amended on 2023-12-15. Previous Versions

PART 2Refugee Protection (continued)

DIVISION 2Convention Refugees and Persons in Need of Protection (continued)

Examination of Eligibility to Refer Claim

Marginal note:Referral to Refugee Protection Division

  •  (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

  •  (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.

  • 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

  •  (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.

Suspension or Termination of Consideration of Claim

Marginal note:Suspension

  •  (1) Proceedings of the Refugee Protection Division in respect of a claim for refugee protection are suspended on notice by an officer that

    • (a) the matter has been referred to the Immigration Division to determine whether the claimant is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality; or

    • (b) an 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 may be punished by a maximum term of imprisonment of at least 10 years.

  • Marginal note:Continuation

    (2) On notice by an officer that the suspended claim was determined to be eligible, proceedings of the Refugee Protection Division must continue.

Marginal note:Notice of ineligible claim

  •  (1) An officer may, with respect to a claim that is before the Refugee Protection Division or, in the case of paragraph (a.1) or (d), that is before or has been determined by the Refugee Protection Division or the Refugee Appeal Division, give notice that an officer has determined that

    • (a) the claim is ineligible under paragraphs 101(1)(a) to (e), other than paragraph 101(1)(c.1);

    • (a.1) the claim is ineligible under paragraph 101(1)(c.1);

    • (b) the claim is ineligible under paragraph 101(1)(f);

    • (c) the claim was referred as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter and that the claim was not otherwise eligible to be referred to that Division; or

    • (d) the claim is not the first claim that was received by an officer in respect of the claimant.

  • Marginal note:Termination and nullification

    (2) A notice given under the following provisions has the following effects:

    • (a) if given under paragraph (1)(a), (b) or (c), it terminates pending proceedings in the Refugee Protection Division respecting the claim;

    • (a.1) if given under paragraph (1)(a.1), it terminates pending proceedings in the Refugee Protection Division or, in the case of an appeal made by the claimant, the Refugee Appeal Division, respecting the claim; and

    • (b) if given under paragraph (1)(d), it terminates proceedings in and nullifies any decision of the Refugee Protection Division or the Refugee Appeal Division respecting a claim other than the first claim.

Extradition Procedure

Marginal note:Suspension if proceeding under Extradition Act

  •  (1) The Refugee Protection Division and Refugee Appeal Division shall not commence, or shall suspend, consideration of any matter concerning a person against whom an authority to proceed has been issued under section 15 of the Extradition Act with respect to an offence under Canadian law that is punishable under an Act of Parliament by a maximum term of imprisonment of at least 10 years, until a final decision under the Extradition Act with respect to the discharge or surrender of the person has been made.

  • Marginal note:Continuation if discharge under Extradition Act

    (2) If the person is finally discharged under the Extradition Act, the proceedings of the applicable Division may be commenced or continued as though there had not been any proceedings under that Act.

  • Marginal note:Rejection if surrender under Extradition Act

    (3) If the person is ordered surrendered by the Minister of Justice under the Extradition Act and the offence for which the person was committed by the judge under section 29 of that Act is punishable under an Act of Parliament by a maximum term of imprisonment of at least 10 years, the order of surrender is deemed to be a rejection of a claim for refugee protection based on paragraph (b) of Section F of Article 1 of the Refugee Convention.

  • Marginal note:Final decision

    (4) The deemed rejection referred to in subsection (3) may not be appealed, and is not subject to judicial review except to the extent that a judicial review of the order of surrender is provided for under the Extradition Act.

  • Marginal note:Limit if no previous claim

    (5) If the person has not made a claim for refugee protection before the order of surrender referred to in subsection (3), the person may not do so before the surrender.

Claimant Without Identification

Marginal note:Credibility

 The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.

Decision on Claim for Refugee Protection

Marginal note:Decision

  •  (1) The Refugee Protection Division shall accept a claim for refugee protection if it determines that the claimant is a Convention refugee or person in need of protection, and shall otherwise reject the claim.

  • Marginal note:No credible basis

    (2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.

Marginal note:Manifestly unfounded

 If the Refugee Protection Division rejects a claim for refugee protection, it must state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent.

  • 2010, c. 8, s. 11.1
  • 2012, c. 17, s. 57

Cessation of Refugee Protection

Marginal note:Rejection

  •  (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:

    • (a) the person has voluntarily reavailed themself of the protection of their country of nationality;

    • (b) the person has voluntarily reacquired their nationality;

    • (c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;

    • (d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or

    • (e) the reasons for which the person sought refugee protection have ceased to exist.

  • Marginal note:Cessation of refugee protection

    (2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).

  • Marginal note:Effect of decision

    (3) If the application is allowed, the claim of the person is deemed to be rejected.

  • Marginal note:Exception

    (4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

Applications to Vacate

Marginal note:Vacation of refugee protection

  •  (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

  • Marginal note:Rejection of application

    (2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.

  • Marginal note:Allowance of application

    (3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.

Designated Countries of Origin

Marginal note:Designation of countries of origin

  •  (1) The Minister may, by order, designate a country, for the purposes of subsection 110(2) and section 111.1.

  • Marginal note:Limitation

    (2) The Minister may only make a designation

    • (a) in the case where the number of claims for refugee protection made in Canada by nationals of the country in question in respect of which the Refugee Protection Division has made a final determination is equal to or greater than the number provided for by order of the Minister,

      • (i) if the rate, expressed as a percentage, that is obtained by dividing the total number of claims made by nationals of the country in question that, in a final determination by the Division during the period provided for in the order, are rejected or determined to be withdrawn or abandoned by the total number of claims made by nationals of the country in question in respect of which the Division has, during the same period, made a final determination is equal to or greater than the percentage provided for in the order, or

      • (ii) if the rate, expressed as a percentage, that is obtained by dividing the total number of claims made by nationals of the country in question that, in a final determination by the Division, during the period provided for in the order, are determined to be withdrawn or abandoned by the total number of claims made by nationals of the country in question in respect of which the Division has, during the same period, made a final determination is equal to or greater than the percentage provided for in the order; or

    • (b) in the case where the number of claims for refugee protection made in Canada by nationals of the country in question in respect of which the Refugee Protection Division has made a final determination is less than the number provided for by order of the Minister, if the Minister is of the opinion that in the country in question

      • (i) there is an independent judicial system,

      • (ii) basic democratic rights and freedoms are recognized and mechanisms for redress are available if those rights or freedoms are infringed, and

      • (iii) civil society organizations exist.

  • Marginal note:Order of Minister

    (3) The Minister may, by order, provide for the number, period or percentages referred to in subsection (2).

  • Marginal note:Statutory Instruments Act

    (4) An order made under subsection (1) or (3) is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.

  • 2010, c. 8, s. 12
  • 2012, c. 17, s. 58
 

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