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

Act current to 2016-06-21 and last amended on 2015-07-01. Previous Versions

Marginal note:Decision
  •  (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions:

    • (a) confirm the determination of the Refugee Protection Division;

    • (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or

    • (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate.

  • (1.1) [Repealed, 2012, c. 17, s. 37]

  • Marginal note:Referrals

    (2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that

    • (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and

    • (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division.

  • 2001, c. 27, s. 111;
  • 2010, c. 8, s. 14;
  • 2012, c. 17, s. 37.

Regulations

Marginal note:Regulations
  •  (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.

  • 2010, c. 8, s. 14.1;
  • 2012, c. 17, s. 59.

DIVISION 3Pre-removal Risk Assessment

Protection

Marginal note:Application for protection
  •  (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 their claim for refugee protection was last 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 the Refugee Appeal Division;

    • (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 their last application for protection was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or the Minister.

    • (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).

  • 2001, c. 27, s. 112;
  • 2010, c. 8, s. 15;
  • 2012, c. 17, ss. 38, 60, 84;
  • 2015, c. 3, s. 114(E).
Marginal note:Consideration of application

 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.

  • 2001, c. 27, s. 113;
  • 2012, c. 17, s. 39.
Marginal note:Effect of decision
  •  (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.

 
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