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

Regulations

Marginal note:Regulations

• 111.1 (1) The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting

  • (a) time limits for the provision of documents and information under subsection 99(3.1) or 100(4);

  • (b) time limits for the hearing referred to in subsection 100(4.1);

  • (c) exceptions to the application of paragraph 110(2)(d);

  • (d) time limits for the filing and perfecting of an appeal under subsection 110(2.1); and

  • (e) time limits for the making of a decision by the Refugee Appeal Division, the extension of those time limits and the circumstances in which they do not apply.

• Marginal note:Clarification — regulations made under paragraph (1)(b)

  (2) With respect to claimants who are nationals of a country that is, on the day on which their claim is made, a country designated under subsection 109.1(1), regulations made under paragraph (1)(b) may provide for time limits that are different from the time limits for other claimants.

DIVISION 3Pre-removal Risk Assessment

Protection

Marginal note:Application for protection

• 112 (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).

• Marginal note:Exception

  (2) Despite subsection (1), a person may not apply for protection if

  • (a) they are the subject of an authority to proceed issued under section 15 of the Extradition Act;

  • (b) they have made a claim to refugee protection that has been determined under paragraph 101(1)(e) to be ineligible;

  • (b.1) subject to subsection (2.1), less than 12 months, or, in the case of a person who is a national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since

    • (i) the day on which their claim for refugee protection was rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division, in the case where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review, or

    • (ii) in any other case, the latest of

      • (A) the day on which their claim for refugee protection was rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or, if there was more than one such rejection or determination, the day on which the last one occurred,

      • (B) the day on which their claim for refugee protection was rejected — unless it was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Appeal Division or, if there was more than one such rejection or determination, the day on which the last one occurred, and

      • (C) the day on which the Federal Court refused their application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their claim for refugee protection, unless that claim was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention; or

  • (c) subject to subsection (2.1), less than 12 months, or, in the case of a person who is a national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since

    • (i) the day on which their application for protection was rejected or determined to be withdrawn or abandoned by the Minister, in the case where no application was made to the Federal Court for leave to commence an application for judicial review, or

    • (ii) in any other case, the later of

      • (A) the day on which their application for protection was rejected or determined to be withdrawn or abandoned by the Minister or, if there was more than one such rejection or determination, the day on which the last one occurred, and

      • (B) the day on which the Federal Court refused their application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their application for protection.

  • (d) [Repealed, 2012, c. 17, s. 38]

• Marginal note:Exemption

  (2.1) The Minister may exempt from the application of paragraph (2)(b.1) or (c)

  • (a) the nationals — or, in the case of persons who do not have a country of nationality, the former habitual residents — of a country;

  • (b) the nationals or former habitual residents of a country who, before they left the country, lived in a given part of that country; and

  • (c) a class of nationals or former habitual residents of a country.

• Marginal note:Application

  (2.2) However, an exemption made under subsection (2.1) does not apply to persons in respect of whom, after the day on which the exemption comes into force, a decision is made respecting their claim for refugee protection by the Refugee Protection Division or, if an appeal is made, by the Refugee Appeal Division.

• Marginal note:Regulations

  (2.3) The regulations may govern any matter relating to the application of subsection (2.1) or (2.2) and may include provisions establishing the criteria to be considered when an exemption is made.

• Marginal note:Restriction

  (3) Refugee protection may not be conferred on an applicant who

  • (a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality;

  • (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years or with respect to a conviction outside Canada 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;

  • (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or

  • (d) is named in a certificate referred to in subsection 77(1).

Marginal note:Consideration of application

113 Consideration of an application for protection shall be as follows:

• (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;

• (b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;

• (c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;

• (d) in the case of an applicant described in subsection 112(3) — other than one described in subparagraph (e)(i) or (ii) — consideration shall be on the basis of the factors set out in section 97 and

  • (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or

  • (ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada; and

• (e) in the case of the following applicants, consideration shall be on the basis of sections 96 to 98 and subparagraph (d)(i) or (ii), as the case may be:

  • (i) an applicant who is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punishable by a maximum term of imprisonment of at least 10 years for which a term of imprisonment of less than two years — or no term of imprisonment — was imposed, and

  • (ii) an applicant who is determined to be inadmissible on grounds of serious criminality with respect to a conviction of an offence outside Canada 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, unless they are found to be a person referred to in section F of Article 1 of the Refugee Convention.

Marginal note:Mandatory hearing

113.01 Unless the application is allowed without a hearing, a hearing must, despite paragraph 113(b), be held in the case of an applicant for protection whose claim for refugee protection has been determined to be ineligible solely under paragraph 101(1)(c.1).

Marginal note:Effect of decision

• 114 (1) A decision to allow the application for protection has

  • (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and

  • (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection.

• Marginal note:Cancellation of stay

  (2) If the Minister is of the opinion that the circumstances surrounding a stay of the enforcement of a removal order have changed, the Minister may re-examine, in accordance with paragraph 113(d) and the regulations, the grounds on which the application was allowed and may cancel the stay.

• Marginal note:Vacation of determination

  (3) If the Minister is of the opinion that a decision to allow an application for protection was obtained as a result of directly or indirectly misrepresenting or withholding material facts on a relevant matter, the Minister may vacate the decision.

• Marginal note:Effect of vacation

  (4) If a decision is vacated under subsection (3), it is nullified and the application for protection is deemed to have been rejected.

Principle of Non-refoulement

Marginal note:Protection

• 115 (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

• Marginal note:Exceptions

  (2) Subsection (1) does not apply in the case of a person

  • (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or

  • (b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.

• Marginal note:Removal of refugee

  (3) A person, after a determination under paragraph 101(1)(e) that the person’s claim is ineligible, is to be sent to the country from which the person came to Canada, but may be sent to another country if that country is designated under subsection 102(1) or if the country from which the person came to Canada has rejected their claim for refugee protection.

Marginal note:Regulations

116 The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting procedures to be followed with respect to applications for protection and decisions made under section 115, including the establishment of factors to determine whether a hearing is required.

PART 3Enforcement

Human Smuggling and Trafficking

Marginal note:Organizing entry into Canada

• 117 (1) No person shall organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act.

• Marginal note:Penalties — fewer than 10 persons

  (2) A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable

  • (a) on conviction on indictment

    • (i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or

    • (ii) for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and

  • (b) on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both.

• Marginal note:Penalty — 10 persons or more

  (3) A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.

• Marginal note:Minimum penalty — fewer than 50 persons

  (3.1) A person who is convicted on indictment of an offence under subsection (2) or (3) with respect to fewer than 50 persons is also liable to a minimum punishment of imprisonment for a term of

  • (a) three years, if either

    • (i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, or

    • (ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group; or

  • (b) five years, if both

    • (i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, and

    • (ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

• Marginal note:Minimum penalty — 50 persons or more

  (3.2) A person who is convicted of an offence under subsection (3) with respect to a group of 50 persons or more is also liable to a minimum punishment of imprisonment for a term of

  • (a) five years, if either

    • (i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, or

    • (ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group; or

  • (b) 10 years, if both

    • (i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, and

    • (ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

• Marginal note:No proceedings without consent

  (4) No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.