Extradition Procedure

Marginal note:Suspension if proceeding under Extradition Act

• 105. (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

106. 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

• 107. (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.

Cessation of Refugee Protection

Marginal note:Rejection

• 108. (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

• 109. (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.

Appeal to Refugee Appeal Division

Marginal note:Appeal

• 110. (1) A person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection, or a decision of the Refugee Protection Division rejecting an application by the Minister for a determination that refugee protection has ceased or an application by the Minister to vacate a decision to allow a claim for refugee protection.

• Marginal note:Restriction on appeals

  (2) A determination that a refugee protection claim has been withdrawn or abandoned may not be appealed.

• Marginal note:Procedure

  (3) The Refugee Appeal Division shall proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept written submissions from the Minister, the person who is the subject of the appeal, and a representative or agent of the United Nations High Commissioner for Refugees, and any other person described in the rules of the Board.

Marginal note:Decision

• 111. (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.

• Marginal note:Referrals

  (2) The Refugee Appeal Division shall make the referral described in paragraph (1)(c) if it is of the opinion that a hearing is required or if it has allowed an appeal by the Minister that was based on a question of the claimant’s credibility.

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;

  • (c) in the case of a person who has not left Canada since the application for protection was rejected, the prescribed period has not expired; or

  • (d) in the case of a person who has left Canada since the removal order came into force, less than six months have passed since they left Canada after their claim to refugee protection was determined to be ineligible, abandoned, withdrawn or rejected, or their application for protection was rejected.

• Marginal note:Restriction

  (3) Refugee protection may not result from an application for protection if the person

  • (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 punished by a term of imprisonment of at least two 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), 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.

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 knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by 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: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.

Marginal note:Offence — trafficking in persons

• 118. (1) No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion.

• Marginal note:Definition of “organize”

  (2) For the purpose of subsection (1), “organize”, with respect to persons, includes their recruitment or transportation and, after their entry into Canada, the receipt or harbouring of those persons.

Marginal note:Disembarking persons at sea

119. A person shall not disembark a person or group of persons at sea for the purpose of inducing, aiding or abetting them to come into Canada in contravention of this Act.

Marginal note:Penalties

120. A person who contravenes section 118 or 119 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:Aggravating factors

• 121. (1) The court, in determining the penalty to be imposed under subsection 117(2) or (3) or section 120, shall take into account whether

  • (a) bodily harm or death occurred during the commission of the offence;

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

  • (c) the commission of the offence was for profit, whether or not any profit was realized; and

  • (d) a person was subjected to humiliating or degrading treatment, including with respect to work or health conditions or sexual exploitation as a result of the commission of the offence.

• Marginal note:Definition of “criminal organization”

  (2) For the purposes of paragraph (1)(b), “criminal organization” means an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence.

Offences Related to Documents

Marginal note:Documents

• 122. (1) No person shall, in order to contravene this Act,

  • (a) possess a passport, visa or other document, of Canadian or foreign origin, that purports to establish or that could be used to establish a person’s identity;

  • (b) use such a document, including for the purpose of entering or remaining in Canada; or

  • (c) import, export or deal in such a document.

• Marginal note:Proof of offence

  (2) Proof of the matters referred to in subsection (1) in relation to a forged document or a document that is blank, incomplete, altered or not genuine is, in the absence of evidence to the contrary, proof that the person intends to contravene this Act.