Protecting Canada’s Immigration System Act (S.C. 2012, c. 17)

Assented to 2012-06-28

Protecting Canada’s Immigration System Act

S.C. 2012, c. 17

Assented to 2012-06-28

An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act

SUMMARY

This enactment amends the Immigration and Refugee Protection Act and the Balanced Refugee Reform Act to, among other things, provide for the expediting of the processing of refugee protection claims.

The Immigration and Refugee Protection Act is also amended to authorize the Minister, in certain circumstances, to designate as an irregular arrival the arrival in Canada of a group of persons and to provide for the effects of such a designation in respect of those persons, including in relation to detention, conditions of release from detention and applications for permanent resident status. In addition, the enactment amends certain enforcement provisions of that Act, notably to expand the scope of the offence of human smuggling and to provide for minimum punishments in relation to that offence. Furthermore, the enactment amends that Act to expand sponsorship options in respect of foreign nationals and to require the provision of biometric information when an application for a temporary resident visa, study permit or work permit is made.

In addition, the enactment amends the Marine Transportation Security Act to increase the penalties for persons who fail to provide information that is required to be reported before a vessel enters Canadian waters or to comply with ministerial directions and for persons who provide false or misleading information. It creates a new offence in respect of vessels that fail to comply with ministerial directions and authorizes the making of regulations respecting the disclosure of certain information for the purpose of protecting the safety or security of Canada or Canadians.

Finally, the enactment amends the Department of Citizenship and Immigration Act to enhance the authority for the Minister of Citizenship and Immigration to enter into agreements and arrangements with foreign governments, and to provide services to the Canada Border Services Agency.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

 This Act may be cited as the Protecting Canada’s Immigration System Act.

2001, c. 27IMMIGRATION AND REFUGEE PROTECTION ACT

 Subsection 2(1) of the Immigration and Refugee Protection Act is amended by adding the following in alphabetical order:

“designated foreign national”

« étranger désigné »

“designated foreign national” has the meaning assigned by subsection 20.1(2).

 Subsection 6(3) of the Act is replaced by the following:

  • Marginal note:Exception

    (3) Despite subsection (2), the Minister may not delegate the power conferred by subsection 20.1(1) or 77(1) or the ability to make determinations under subsection 34(2) or 35(2) or paragraph 37(2)(a).

 The headings before section 11 of the Act are replaced by the following:

PART 1IMMIGRATION TO CANADA

Division 1Requirements and Selection

Requirements

 Section 11 of the Act is amended by adding the following after subsection (1):

  • Marginal note:Restriction

    (1.1) A designated foreign national may not make an application for permanent residence under subsection (1)

    • (a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

    • (b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

    • (c) in any other case, until five years after the day on which they become a designated foreign national.

  • Marginal note:Suspension of application

    (1.2) The processing of an application for permanent residence under subsection (1) of a foreign national who, after the application is made, becomes a designated foreign national is suspended

    • (a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

    • (b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

    • (c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

  • Marginal note:Refusal to consider application

    (1.3) The officer may refuse to consider an application for permanent residence made under subsection (1) if

    • (a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and

    • (b) less than 12 months have passed since the end of the applicable period referred to in subsection (1.1) or (1.2).

 The Act is amended by adding the following after section 11:

Marginal note:Biometric information

11.1 A prescribed foreign national who makes an application for a temporary resident visa, study permit or work permit must follow the prescribed procedures for the collection of prescribed biometric information.

 Subsections 13(1) to (3) of the Act are replaced by the following:

Marginal note:Sponsorship of foreign nationals
  • 13. (1) A Canadian citizen or permanent resident, or a group of Canadian citizens or permanent residents, a corporation incorporated under a law of Canada or of a province or an unincorporated organization or association under federal or provincial law — or any combination of them — may sponsor a foreign national, subject to the regulations.

 The Act is amended by adding the following after section 13:

Undertakings

Marginal note:Undertaking binding

13.1 An undertaking given under this Act in respect of a foreign national — including a sponsorship undertaking — is binding on the person who gives it.

Marginal note:Undertaking required
  • 13.2 (1) If required to do so by the regulations, a foreign national who makes an application for a visa or for permanent or temporary resident status must obtain the undertaking specified in the regulations.

  • Marginal note:Minister’s instructions

    (2) An officer must apply the regulations made under paragraph 14(2)(e.1) in accordance with any instructions that the Minister may give.

  •  (1) Paragraph 14(2)(e) of the Act is replaced by the following:

    • (e) sponsorships;

    • (e.1) undertakings, and penalties for failure to comply with undertakings;

  • (2) Section 14 of the Act is amended by adding the following after subsection (2):

    • Marginal note:Biometric information

      (3) The regulations may provide for any matter relating to the application of section 11.1, including

      • (a) the circumstances in which a foreign national is exempt from the requirement to follow the procedures prescribed under that section;

      • (b) the circumstances in which a foreign national is not required to provide certain biometric information; and

      • (c) the processing of the collected biometric information, including creating biometric templates or converting the information into digital biometric formats.

 The Act is amended by adding the following after section 20:

Marginal note:Designation — human smuggling or other irregular arrival
  • 20.1 (1) The Minister may, by order, having regard to the public interest, designate as an irregular arrival the arrival in Canada of a group of persons if he or she

    • (a) is of the opinion that examinations of the persons in the group, particularly for the purpose of establishing identity or determining inadmissibility — and any investigations concerning persons in the group — cannot be conducted in a timely manner; or

    • (b) has reasonable grounds to suspect that, in relation to the arrival in Canada of the group, there has been, or will be, a contravention of subsection 117(1) for profit, or for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

  • Marginal note:Effect of designation

    (2) When a designation is made under subsection (1), a foreign national — other than a foreign national referred to in section 19 — who is part of the group whose arrival is the subject of the designation becomes a designated foreign national unless, on arrival, they hold the visa or other document required under the regulations and, on examination, the officer is satisfied that they are not inadmissible.

  • Marginal note:Statutory Instruments Act

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

Marginal note:Application for permanent residence — restriction
  • 20.2 (1) A designated foreign national may not apply to become a permanent resident

    • (a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

    • (b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

    • (c) in any other case, until five years after the day on which they become a designated foreign national.

  • Marginal note:Suspension of application for permanent residence

    (2) The processing of an application for permanent residence of a foreign national who, after the application is made, becomes a designated foreign national is suspended

    • (a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

    • (b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

    • (c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

  • Marginal note:Refusal to consider application

    (3) The officer may refuse to consider an application for permanent residence if

    • (a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and

    • (b) less than 12 months have passed since the end of the applicable period referred to in subsection (1) or (2).

  •  (1) Subsection 21(2) of the Act is replaced by the following:

    • Marginal note:Protected person

      (2) Except in the case of a person who is a member of a prescribed class of persons, a person who has made a claim for refugee protection or an application for protection and who has been finally determined by the Board to be a Convention refugee or to be a person in need of protection, becomes, subject to any federal-provincial agreement referred to in subsection 9(1), a permanent resident if the officer is satisfied that they have made their application in accordance with the regulations and that they are not inadmissible on any ground referred to in section 34 or 35, subsection 36(1) or section 37 or 38.

  • (2) Section 21 of the Act is amended by adding the following after subsection (2):

    • Marginal note:Pending application — subsection 108(2)

      (3) A person in respect of whom the Minister has made an application under subsection 108(2) may not become a permanent resident under subsection (2) while the application is pending.

 
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