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

Marginal note:Referral of certificate

• 77. (1) The Minister and the Solicitor General of Canada shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court — Trial Division, which shall make a determination under section 80.

• Marginal note:Effect of referral

  (2) When the certificate is referred, a proceeding under this Act respecting the person named in the certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination.

Marginal note:Judicial consideration

78. The following provisions govern the determination:

• (a) the judge shall hear the matter;

• (b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;

• (c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;

• (d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination;

• (e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;

• (f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary;

• (g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person;

• (h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed;

• (i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and

• (j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.

Marginal note:Proceedings suspended

• 79. (1) On the request of the Minister, the permanent resident or the foreign national, a judge shall suspend a proceeding with respect to a certificate in order for the Minister to decide an application for protection made under subsection 112(1).

• Marginal note:Proceedings resumed

  (2) If a proceeding is suspended under subsection (1) and the application for protection is decided, the Minister shall give notice of the decision to the permanent resident or the foreign national and to the judge, the judge shall resume the proceeding and the judge shall review the lawfulness of the decision of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Court Act.

Marginal note:Determination that certificate is reasonable

• 80. (1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.

• Marginal note:Determination that certificate is not reasonable

  (2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.

• Marginal note:Determination not reviewable

  (3) The determination of the judge is final and may not be appealed or judicially reviewed.

Marginal note:Effect of determination — removal order

81. If a certificate is determined to be reasonable under subsection 80(1),

• (a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible;

• (b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and

• (c) the person named in it may not apply for protection under subsection 112(1).

Detention

Marginal note:Detention of permanent resident

• 82. (1) The Minister and the Solicitor General of Canada may issue a warrant for the arrest and detention of a permanent resident who is named in a certificate described in subsection 77(1) if they have reasonable grounds to believe that the permanent resident is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.

• Marginal note:Mandatory detention

  (2) A foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant.

Marginal note:Review of decision for detention

• 83. (1) Not later than 48 hours after the beginning of detention of a permanent resident under section 82, a judge shall commence a review of the reasons for the continued detention. Section 78 applies with respect to the review, with any modifications that the circumstances require.

• Marginal note:Further reviews

  (2) The permanent resident must, until a determination is made under subsection 80(1), be brought back before a judge at least once in the six-month period following each preceding review and at any other times that the judge may authorize.

• Marginal note:Order for continuation

  (3) A judge shall order the detention to be continued if satisfied that the permanent resident continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal.

Marginal note:Release

• 84. (1) The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada.

• Marginal note:Judicial release

  (2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national’s release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.

Marginal note:Inconsistency

85. In the case of an inconsistency between sections 82 to 84 and the provisions of Division 6, sections 82 to 84 prevail to the extent of the inconsistency.

Consideration During an Admissibility Hearing or an Immigration Appeal

Marginal note:Application for non-disclosure — Immigration Appeal Division

• 86. (1) The Minister may, during an admissibility hearing, a detention review or an appeal before the Immigration Appeal Division, make an application for non-disclosure of information.

• Marginal note:Procedure

  (2) Section 78 applies to the determination of the application, with any modifications that the circumstances require, including that a reference to “judge” be read as a reference to the applicable Division of the Board.

Consideration During Judicial Review

Marginal note:Application for non-disclosure — Court

• 87. (1) The Minister may, in the course of a judicial review, make an application to the judge for the non-disclosure of any information with respect to information protected under subsection 86(1) or information considered under section 11, 112 or 115.

• Marginal note:Procedure

  (2) Section 78, except for the provisions relating to the obligation to provide a summary and the time limit referred to in paragraph 78(d), applies to the determination of the application, with any modifications that the circumstances require.

Division 10General Provisions

Loans

Marginal note:Loans

• 88. (1) The Minister of Finance may, from time to time, advance to the Minister out of the Consolidated Revenue Fund, up to the maximum amount that is prescribed, sums that the Minister may require in order to make loans for the purposes of this Act.

• Marginal note:Regulations

  (2) The regulations may provide for any matter relating to the application of this section, and may include provisions respecting classes of persons to whom, and the purposes for which, the loans may be made.

Fees

Marginal note:Regulations

89. The regulations may govern fees for services provided in the administration of this Act, and cases in which fees may be waived by the Minister or otherwise, individually or by class.

Social Insurance Number Cards

Marginal note:Minister directs special cards to be issued

90. The Minister may direct the Canada Employment Insurance Commission to issue to persons, other than Canadian citizens or permanent residents, Social Insurance Number Cards, by which the holders of such cards are identified as persons who may be required under this Act to obtain authorization to work in Canada.

Representation

Marginal note:Regulations

91. The regulations may govern who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board.

Material Incorporated in Regulations

Marginal note:Incorporated material

• 92. (1) A regulation may incorporate by reference the following material:

  • (a) material produced by a person or body other than the Governor in Council;

  • (b) material referred to in paragraph (a) that has been subsequently adapted or edited in order to facilitate its incorporation for the purposes of the regulation;

  • (c) material that has been developed jointly with another government or government agency for the purpose of harmonizing the regulation with other laws; and

  • (d) material that is technical or explanatory in nature, such as specifications, classifications, illustrations or graphs, as well as examples that may assist in the application of the regulation.

• Marginal note:Amended from time to time

  (2) Material may be incorporated by reference on a specified date or as amended from time to time.

• Marginal note:Incorporated material is not a regulation

  (3) For greater certainty, material that is incorporated by reference in a regulation made under this Act is not a regulation for the purposes of the Statutory Instruments Act.