Balanced Refugee Reform Act (S.C. 2010, c. 8)
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Assented to 2010-06-29
Balanced Refugee Reform Act
S.C. 2010, c. 8
Assented to 2010-06-29
An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act
SUMMARY
This enactment amends the Immigration and Refugee Protection Act, primarily in respect of the processing of refugee claims referred to the Immigration and Refugee Board. In particular, the enactment
(a) provides for the referral of a refugee claimant to an interview with an Immigration and Refugee Board official, who is to collect information and schedule a hearing before the Refugee Protection Division;
(b) provides that the members of the Refugee Protection Division are appointed in accordance with the Public Service Employment Act;
(c) provides for the coming into force, no more than two years after the day on which the enactment receives royal assent, of the provisions of the Immigration and Refugee Protection Act that permit a claimant to appeal a decision of the Refugee Protection Division to the Refugee Appeal Division;
(d) authorizes the Minister to designate, in accordance with the process and criteria established by the regulations certain countries, parts of countries or classes of nationals;
(e) provides clarification with respect to the type of evidence that may be put before the Refugee Appeal Division and the circumstances in which that Division may hold a hearing;
(f) prohibits a person whose claim for refugee protection has been rejected from applying for a temporary resident permit or applying to the Minister for protection if less than 12 months have passed since their claim was rejected;
(g) authorizes the Minister, in respect of applications for protection, to exempt nationals, or classes of nationals, of a country or part of a country from the 12-month prohibition;
(h) provides clarification with respect to the Minister’s authority to grant permanent resident status or an exemption from any obligations of the Act on humanitarian and compassionate grounds or on public policy grounds;
(i) limits the circumstances in which the Minister may examine requests for permanent resident status or for an exemption from any obligations of the Act on humanitarian and compassionate grounds; and
(j) enacts transitional provisions respecting the processing of pending claims by the Minister or the Immigration and Refugee Board.
The enactment also amends the Federal Courts Act to increase the number of Federal Court judges.
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
1. This Act may be cited as the Balanced Refugee Reform Act.
2001, c. 27IMMIGRATION AND REFUGEE PROTECTION ACT
2. Paragraph 16(2)(b) of the Immigration and Refugee Protection Act is replaced by the following:
(b) subject to the regulations, the foreign national must submit to a medical examination.
3. Section 24 of the Act is amended by adding the following after subsection (3):
Marginal note:Restriction
(4) A foreign national whose claim for refugee protection has been rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division may not request a temporary resident permit if less than 12 months have passed since their claim was last rejected or determined to be withdrawn or abandoned.
Marginal note:2008, c. 28, s. 117
4. (1) Subsection 25(1) of the Act is replaced by the following:
Marginal note:Humanitarian and compassionate considerations — request of foreign national
25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
Marginal note:Payment of fees
(1.1) The Minister is seized of a request referred to in subsection (1) only if the applicable fees in respect of that request have been paid.
Marginal note:Exceptions
(1.2) The Minister may not examine the request if the foreign national has already made such a request and the request is pending.
Marginal note:Non-application of certain factors
(1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national.
(2) Subsection 25(2) of the French version of the Act is replaced by the following:
Marginal note:Critères provinciaux
(2) Le statut de résident permanent ne peut toutefois être octroyé à l’étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables.
5. The Act is amended by adding the following after section 25:
Marginal note:Humanitarian and compassionate considerations — Minister’s own initiative
25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
Marginal note:Exemption
(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).
Marginal note:Provincial criteria
(3) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.
Marginal note:Public policy considerations
25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by public policy considerations.
Marginal note:Exemption
(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).
Marginal note:Provincial criteria
(3) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.
6. The portion of section 26 of the Act before paragraph (a) is replaced by the following:
Marginal note:Regulations
26. The regulations may provide for any matter relating to the application of sections 18 to 25.2, and may include provisions respecting
Marginal note:2008, c. 3, s. 3
7. Paragraph 36(3)(e) of the Act is replaced by the following:
(e) inadmissibility under subsections (1) and (2) may not be based on an offence
(i) designated as a contravention under the Contraventions Act,
(ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or
(iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.
8. Section 91 of the Act is replaced by the following:
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 any Division of the Board, including an interview before an official referred to in subsection 100(4.1).
9. Paragraph 94(2)(e) of the Act is replaced by the following:
(e) the number of persons granted permanent resident status under each of subsections 25(1), 25.1(1) and 25.2(1); and
10. Paragraphs 95(1)(a) and (b) of the French version of the Act are replaced by the following:
a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié au sens de la Convention ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection;
b) la Commission lui reconnaît la qualité de réfugié au sens de la Convention ou celle de personne à protéger;
11. (1) Section 100 of the Act is amended by adding the following after subsection (1):
Marginal note:Burden of proof
(1.1) The burden of proving that a claim is eligible to be referred to the Refugee Protection Division rests on the claimant, who must answer truthfully all questions put to them.
(2) Subsection 100(4) of the Act is replaced by the following:
Marginal note:Duty of claimant
(4) A person whose claim is referred to the Refugee Protection Division must attend an interview with an official of the Board on a date fixed by the referring officer in accordance with the rules of the Board and must at the interview produce all documents and information required by those rules. The date fixed for the interview must not be earlier than 15 days after the day on which the claim is referred, unless the claimant consents to an earlier date.
Marginal note:Hearing — Refugee Protection Division
(4.1) The official of the Board who conducts the interview must, in accordance with the regulations and any directions of the Chairperson of the Board, fix the date on which the claimant is to attend a hearing before the Refugee Protection Division.
11.1 The Act is amended by adding the following after section 107:
Marginal note:Manifestly unfounded
107.1 If the Refugee Protection Division rejects a claim for refugee protection, it may state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent.
12. The Act is amended by adding the following after section 109:
Designated Countries of Origin
Marginal note:Designation of countries of origin
109.1 (1) The Minister may, by order, for the purposes of section 111.1, designate a country or part of a country or a class of nationals of a country.
Marginal note:Limitation
(1.1) The Minister may make a designation only if
(a) the number of claims for refugee protection made in Canada by nationals of the country in question is equal to or greater than the number set out in the regulations; and
(b) the rate of acceptance by the Refugee Protection Division of claims made by nationals of the country in question is equal to or lower than the rate set out in the regulations.
Marginal note:Criteria to be considered
(1.2) In making a designation, the Minister must take the following criteria into account:
(a) the human rights record of the country in question as it relates to
(i) the factors set out in sections 96 and 97, and
(ii) the international human rights instruments specified in the regulations and any other international instrument that the Minister considers relevant;
(b) the availability in the country in question of mechanisms for seeking protection and redress;
(c) the number of claims for refugee protection made in Canada by nationals of the country in question;
(d) the rate of acceptance by the Refugee Protection Division of claims made by nationals of the country in question and the rate of appeals allowed by the Refugee Appeal Division in respect of appeals made by nationals of the country in question; and
(e) any other criteria set out in the regulations.
Marginal note:Statutory Instruments Act
(2) An order referred to in subsection (1) is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.
13. (1) Subsection 110(1) of the Act is replaced by the following:
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.
(2) Subsection 110(3) of the Act is replaced by the following:
Marginal note:Making of appeal
(2.1) The appeal must be filed and perfected within the time limits set out in the regulations.
Marginal note:Procedure
(3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and written submissions from 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:Time limits
(3.1) Unless a hearing is held under subsection (6), the Refugee Appeal Division must make a decision within the time limits set out in the regulations.
Marginal note:Evidence that may be presented
(4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.
Marginal note:Exception
(5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister.
Marginal note:Hearing
(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3)
(a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal;
(b) that is central to the decision with respect to the refugee protection claim; and
(c) that, if accepted, would justify allowing or rejecting the refugee protection claim.
14. Subsection 111(2) of the Act is replaced by the following:
Marginal note:Manifestly unfounded
(1.1) For greater certainty, if the Refugee Appeal Division does not set it aside, the Refugee Protection Division’s determination under section 107.1 is confirmed.
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.
14.1 The Act is amended by adding the following after section 111:
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
(a) relating to the criteria referred to in subsection 109.1(1.2) and the process to be followed with respect to a designation made under subsection 109.1(1);
(b) establishing criteria for the purposes of paragraph 109.1(1.2)(e); and
(c) respecting the time limits
(i) for the hearing referred to in subsection 100(4.1),
(ii) for the filing and perfecting of an appeal under subsection 110(2.1), and
(iii) for the making of a decision by the Refugee Appeal Division, the extension of those time limits and the circumstances under which they do not apply.
Marginal note:Clarification — regulations made under subparagraph (1)(c)(i)
(2) Regulations made under subparagraph (1)(c)(i) may provide for time limits for any of the following claimants that are different from the time limits for other claimants:
(a) claimants who are nationals of a country that is, on the date of their interview referred to in subsection 100(4), a country designated under subsection 109.1(1);
(b) claimants who are nationals of a country of which a part is, on the date of their interview referred to in subsection 100(4), a part designated under subsection 109.1(1); or
(c) claimants who belong to a class of nationals of a country that is, on the date of their interview referred to in subsection 100(4), a class designated under subsection 109.1(1).
Marginal note:Clarification — regulations made under subparagraph (1)(c)(ii)
(3) Regulations made under subparagraph (1)(c)(ii) may provide for time limits for the filing and perfecting of appeals by any of the following claimants that are different from the time limits for other claimants:
(a) claimants whose claims are found by the Refugee Protection Division to be manifestly unfounded under section 107.1;
(b) claimants who are nationals of any country that is, on the day on which the decision being appealed is made, a country designated under subsection 109.1(1);
(c) claimants who are nationals of a country of which a part is, on the day on which the decision being appealed is made, a part designated under that subsection and who lived in that designated part before they left the country; or
(d) claimants who belong to a class of nationals of a country that is, on the day on which the decision being appealed is made, a class designated under that subsection.
Marginal note:Clarification — regulations made under subparagraph (1)(c)(iii)
(4) Regulations made under subparagraph (1)(c)(iii) may provide for time limits for making decisions in respect of appeals by claimants referred to in paragraphs (3)(a) to (d) that are different from the time limits for other claimants.
15. (1) Subsection 112(1) of the Act is replaced by the following:
Marginal note:Application for protection
112. (1) Subject to subsection (1.1), a person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations and the rules of the Board, apply to the Refugee Protection Division for protection if they are subject to a removal order that is in force.
Marginal note:Application to Minister
(1.1) In the case of a person described in subsection (3), the application for protection must be made to the Minister in accordance with the regulations.
Marginal note:Suspension of application
(1.2) Proceedings of the Refugee Protection Division in respect of an application are suspended on notice by an officer that
(a) a report has been referred to the Immigration Division for a determination of whether the applicant is inadmissible on grounds of security, violating human or international rights, serious criminality — as referred to in paragraph (3)(b) — or organized criminality; or
(b) the applicant is the subject of an authority to proceed issued under section 15 of the Extradition Act.
Marginal note:Transfer — inadmissibility
(1.3) On notice by an officer that the Immigration Division has made a determination that the applicant is inadmissible on the grounds referred to in paragraph (1.2)(a), consideration of the application is transferred to the Minister.
Marginal note:Continuation
(1.4) On notice by an officer that the Immigration Division has made a determination that the applicant is not inadmissible on the grounds referred to in paragraph (1.2)(a), consideration of the application is continued by the Refugee Protection Division.
Marginal note:Termination after surrender under Extradition Act
(1.5) If the applicant is ordered surrendered by the Minister of Justice under the Extradition Act, consideration of the application is terminated.
Marginal note:Continuation
(1.6) If the applicant is finally discharged under the Extradition Act, consideration of the application is continued by the Refugee Protection Division.
Marginal note:Transfer: Refugee Convention
(1.7) If the Refugee Protection Division makes a determination that the applicant is referred to in section F of Article 1 of the Refugee Convention, consideration of the application is transferred to the Minister.
(2) The portion of subsection 112(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:Exception
(2) Despite subsections (1) and (1.1), a person may not apply for protection if
(3) Subsection 112(2) of the Act is amended by adding the following after paragraph (b):
(b.1) subject to subsection (2.1), less than 12 months have passed since their claim for refugee protection was last 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 Protection Division or the Refugee Appeal Division;
(4) Section 112 of the Act is amended by adding the following after subsection (2):
Marginal note:Exemption
(2.1) The Minister may exempt from the application of paragraph (2)(b.1)
(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.
(5) Subsection 112(3) of the Act is amended by striking out “or” at the end of paragraph (c) and by adding the following after paragraph (c):
(c.1) made an application for protection and the consideration of that application was transferred to the Minister under subsection (1.7); or
16. Paragraphs 113(a) and (b) of the Act are replaced by the following:
(a) an applicant whose claim for refugee protection or whose most recent application for protection, as the case may be, has been rejected may present only 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) in the case of an applicant described in subsection 112(3), a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;
(b.1) subject to paragraphs (a) and (b.3), in the case of an applicant not described in subsection 112(3), the Refugee Protection Division must proceed without a hearing and may accept documentary evidence and written submissions from the Minister and the applicant;
(b.2) in the case of an applicant not described in subsection 112(3), paragraph (a) does not apply in respect of evidence that is presented in response to evidence presented by the Minister;
(b.3) in the case of an applicant not described in subsection 112(3), the Refugee Protection Division may hold a hearing if, in its opinion, there is documentary evidence referred to in paragraph (b.1)
(i) that raises a serious issue with respect to the credibility of the applicant,
(ii) that is central to the decision with respect to the application, and
(iii) that, if accepted, would justify allowing the application;
16.1 The Act is amended by adding the following after section 114:
Marginal note:Limitation
114.1 (1) Subsections 114(3) and (4) apply in respect of a decision to allow an application for protection only if the application was made to the Minister under subsection 112(1.1) or transferred to the Minister under subsection 112(1.3) or (1.7).
Marginal note:Application of section 109
(2) Section 109 applies to a decision made by the Refugee Protection Division to allow an application for protection as if it were a decision to allow a claim for refugee protection.
17. The Act is amended by adding the following after section 152:
Marginal note:Oath or affirmation of office
152.1 The Chairperson and other members of the Board must swear the oath or give the solemn affirmation of office set out in the rules of the Board.
18. (1) The portion of subsection 153(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Chairperson and other members
153. (1) The Chairperson and members of the Refugee Appeal Division and Immigration Appeal Division
(2) Paragraph 153(1)(b) of the Act is repealed.
19. (1) Paragraphs 159(1)(b) to (d) of the Act are replaced by the following:
(b) may at any time assign a member appointed under paragraph 153(1)(a) to the Refugee Appeal Division or the Immigration Appeal Division;
(c) may at any time, despite paragraph 153(1)(a), assign a member of the Refugee Appeal Division or the Immigration Appeal Division to work in another regional or district office to satisfy operational requirements, but an assignment may not exceed 120 days without the approval of the Governor in Council;
(d) may designate, from among the full-time members appointed under paragraph 153(1)(a), coordinating members for the Refugee Appeal Division or the Immigration Appeal Division;
(2) Paragraph 159(1)(h) of the Act is replaced by the following:
(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties; and
(3) Subsection 159(2) of the Act is replaced by the following:
Marginal note:Delegation
(2) The Chairperson may delegate any of his or her powers under this Act to a member of the Board, except that
(a) powers referred to in subsection 161(1) may not be delegated;
(b) powers referred to in paragraphs (1)(a) and (i) may be delegated to the Executive Director of the Board;
(c) powers in relation to the Immigration Appeal Division and the Refugee Appeal Division may only be delegated to the Deputy Chairperson, the Assistant Deputy Chairpersons, or other members, including coordinating members, of either of those Divisions; and
(d) powers in relation to the Immigration Division or the Refugee Protection Division may only be delegated to the Deputy Chairperson, the Assistant Deputy Chairpersons or other members, including coordinating members, of that Division.
20. The portion of subsection 161(1) of the Act before paragraph (b) is replaced by the following:
Marginal note:Rules
161. (1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons, the Chairperson may make rules respecting
(a) the referral of a claim for refugee protection to the Refugee Protection Division and the conduct of the interview referred to in subsection 100(4);
(a.1) the factors to be taken into account in fixing or changing the date of an interview referred to in subsection 100(4);
(a.2) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, other than in respect of appeals of decisions of the Refugee Protection Division, the priority to be given to proceedings, the notice that is required and the period in which notice must be given;
21. Section 163 of the Act is replaced by the following:
Marginal note:Composition of panels
163. Matters before a Division must be conducted before a single member unless, with respect to a matter before the Refugee Appeal Division or the Immigration Appeal Division, the Chairperson is of the opinion that a panel of three members should be constituted.
22. Section 165 of the Act is replaced by the following:
Marginal note:Powers of a commissioner
165. The Refugee Protection Division, the Refugee Appeal Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing.
23. Subsection 167(1) of the Act is replaced by the following:
Marginal note:Right to counsel
167. (1) A person who is the subject of proceedings before any Division of the Board, including the interview referred to in subsection 100(4), and the Minister may, at their own expense, be represented by legal or other counsel.
24. Subsection 168(1) of the Act is replaced by the following:
Marginal note:Abandonment of proceeding
168. (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to attend the interview referred to in subsection 100(4), to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.
25. (1) Paragraph 169(c) of the Act is replaced by the following:
(c) the decision may be rendered orally or in writing, except for a decision of the Refugee Protection Division in respect of an application for protection under subsection 112(1), which must be rendered in writing;
(2) Section 169 of the Act is amended by striking out “and” at the end of paragraph (e) and by adding the following after paragraph (e):
(e.1) notice of a decision of the Refugee Protection Division in respect of an application for protection, as well as written reasons for the decision, must, in accordance with the regulations, be provided to the Minister, who must then provide the notice and reasons to the applicant in accordance with the regulations; and
(3) Section 169 of the Act is renumbered as subsection 169(1) and is amended by adding the following:
Marginal note:Regulations
(2) The regulations may govern the time within which and the manner in which notice of a decision of the Refugee Protection Division in respect of an application for protection, as well as written reasons for the decision, must be provided.
26. The Act is amended by adding the following before section 170:
Marginal note:Composition
169.1 (1) The Refugee Protection Division consists of the Deputy Chairperson, Assistant Deputy Chairpersons and other members, including coordinating members, necessary to carry out its functions.
Marginal note:Public Service Employment Act
(2) The members of the Refugee Protection Division are appointed in accordance with the Public Service Employment Act.
27. (1) The portion of section 170 of the Act before paragraph (a) is replaced by the following:
Marginal note:Proceedings
170. Except in respect of an application for protection made under subsection 112(1), the Refugee Protection Division, in any proceeding before it,
(2) Section 170 of the Act is amended by adding the following after paragraph (d):
(d.1) may question the witnesses, including the person who is the subject of the proceeding;
27.1 The Act is amended by adding the following after section 170:
Marginal note:Application for protection
170.1 In respect of an application for protection under subsection 112(1), the Refugee Protection Division
(a) may inquire into any matter that it considers relevant to establishing whether an application is well-founded;
(b) must provide the Minister, on request, with the documentary evidence and written submissions of the applicant that are referred to in paragraph 113(b.1);
(c) must give notice of any hearing to the Minister and the applicant;
(d) subject to paragraph 113(a), must — if a hearing is held — give the applicant and the Minister the opportunity to present evidence, question witnesses and make submissions;
(e) may question the witnesses, including the applicant;
(f) is not bound by any legal or technical rules of evidence;
(g) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; and
(h) may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge.
28. (1) Paragraph 171(a) of the Act is replaced by the following:
(a) the Division must give notice of any hearing to the Minister and to the person who is the subject of the appeal;
(a.1) subject to subsection 110(4), if a hearing is held, the Division must give the person who is the subject of the appeal and the Minister the opportunity to present evidence, question witnesses and make submissions;
(a.2) the Division is not bound by any legal or technical rules of evidence;
(a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances;
(a.4) the Minister may, after giving notice in accordance with the rules, intervene in the appeal, including for the purpose of filing submissions;
(2) Paragraph 171(c) of the French version of the Act is replaced by the following:
c) la décision du tribunal constitué de trois commissaires a la même valeur de précédent pour le tribunal constitué d’un commissaire unique et la Section de la protection des réfugiés que celle qu’une cour d’appel a pour une cour de première instance.
29. Section 172 of the Act is replaced by the following:
Marginal note:Composition
172. (1) The Immigration Division consists of the Deputy Chairperson, Assistant Deputy Chairpersons and other members necessary to carry out its functions.
Marginal note:Public Service Employment Act
(2) The members of the Immigration Division are appointed in accordance with the Public Service Employment Act.
30. Subsection 176(1) of the Act is replaced by the following:
Marginal note:Request
176. (1) The Chairperson may request the Minister to decide whether any member of the Immigration Appeal Division or the Refugee Appeal Division should be subject to remedial or disciplinary measures for a reason set out in subsection (2).
31. Section 275 of the Act is replaced by the following:
Marginal note:Coming into force
275. Sections 73, 110, 111, 171, 194 and 195 come into force two years after the day on which the Balanced Refugee Reform Act receives royal assent or on any earlier day that may be fixed by order of the Governor in Council.
TRANSITIONAL PROVISIONS
Marginal note:Humanitarian and compassionate considerations
32. Every request that is made under section 25 of the Immigration and Refugee Protection Act, as that Act read immediately before the day on which this Act receives royal assent, is to be determined in accordance with that Act as it read immediately before that day.
Marginal note:Refugee protection claim — Personal Information Form not yet submitted
33. (1) The Immigration and Refugee Protection Act, as amended by this Act, applies to every claim for refugee protection made before the day on which this section comes into force if, before that day, the claimant has not submitted a Personal Information Form, as defined in section 1 of the Refugee Protection Division Rules, as they read immediately before that day, and the time limit for submitting that Form has not expired.
Marginal note:Day of interview
(2) The day of the interview that the claimant referred to in subsection (1) must attend under subsection 100(4) of the Immigration and Refugee Protection Act, as enacted by subsection 11(2), is to be fixed by an official of the Immigration and Refugee Board.
Marginal note:Refugee protection claim — Personal Information Form submitted
34. (1) The Immigration and Refugee Protection Act, as amended by this Act, except subsections 100(4) and (4.1), applies to every claim for refugee protection made before the day on which this section comes into force if, before that day,
(a) the claimant has submitted a Personal Information Form, as defined in section 1 of the Refugee Protection Division Rules, as they read immediately before that day; and
(b) there has been no hearing before the Refugee Protection Division in respect of the claim or, if there has been a hearing, no substantive evidence has been heard.
Marginal note:Interview
(2) The claimant referred to in subsection (1) must attend an interview with an official of the Immigration and Refugee Board, if required to do so, on the date fixed by the official in accordance with the Refugee Protection Division Rules and must produce any supplementary documents and information that the official considers necessary.
Marginal note:Substantive evidence heard
35. (1) Every claim for refugee protection in respect of which substantive evidence has been heard before the day on which subsection 18(1) comes into force by a single member or a panel of three members of the Refugee Protection Division appointed under paragraph 153(1)(a) of the Immigration and Refugee Protection Act, as it read immediately before that day, must continue to be heard by that single member or panel in accordance with that Act, as it read immediately before that day.
Marginal note:Single member unable to continue
(2) If the single member is unable to continue to hear the claim, the claim must be referred to a member of the Refugee Protection Division referred to in section 169.1 of the Immigration and Refugee Protection Act, as enacted by section 26, and that member must commence a new hearing in accordance with that Act, as amended by this Act.
Marginal note:Member of panel unable to continue
(3) If a member of the panel referred to in subsection (1) is unable to continue to hear the claim, the claim must continue to be heard by one of the two remaining members in accordance with the Immigration and Refugee Protection Act, as it read immediately before the day on which subsection 18(1) comes into force.
Marginal note:No appeal to Refugee Appeal Division
36. (1) A decision made by the Refugee Protection Division before the day on which this section comes into force is not subject to appeal to the Refugee Appeal Division.
Marginal note:No waiting period
(2) The person in respect of whom the decision was made is not required to wait for the expiry of the 12-month period referred to in paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act, as enacted by subsection 15(3), before making an application under subsection 112(1) or (1.1) of that Act.
Marginal note:Decision set aside in judicial review
37. If a decision referred to in subsection 36(1) is set aside in a judicial review, the claim for refugee protection must be referred to a member of the Refugee Protection Division referred to in section 169.1 of the Immigration and Refugee Protection Act, as enacted by section 26.
Marginal note:Application for protection
37.1 An application for protection that is made before the day on which subsection 15(1) comes into force is to be considered in accordance with the Immigration and Refugee Protection Act, as that Act read immediately before that day.
Marginal note:Application for protection
38. For greater certainty, paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act, as enacted by subsection 15(3), does not apply if, before the day on which this section comes into force, an application for protection is made under subsection 112(1) of that Act.
Marginal note:Non-application
39. Paragraph 25(1.2)(b) of the Immigration and Refugee Protection Act, as enacted by subsection 4(1), does not apply to a refugee claimant whose claim is pending before the Refugee Protection Division on the day on which section 36 comes into force.
Marginal note:Non-application
40. Paragraph 25(1.2)(c) of the Immigration and Refugee Protection Act, as enacted by subsection 4(1), does not apply to a refugee claimant whose claim is rejected or determined to be withdrawn or abandoned by the Refugee Protection Division before the day on which section 36 comes into force.
R.S., c. F-7; 2002, c. 8, s. 14FEDERAL COURTS ACT
Marginal note:2001, c. 41, par. 144(2)(b)
41. Subsection 5.1(1) of the Federal Courts Act is replaced by the following:
Marginal note:Constitution of Federal Court
5.1 (1) The Federal Court consists of a chief justice called the Chief Justice of the Federal Court, who is the president of the Federal Court, and 36 other judges.
COMING INTO FORCE
Marginal note:Order in council
42. (1) Subject to subsection (2), the provisions of this Act, except sections 3 to 6, 9, 13, 14, 28, 31, 32, 39 and 40, come into force two years after the day on which this Act receives royal assent or on any earlier day or days that may be fixed by order of the Governor in Council.
Marginal note:Coming into force of certain provisions
(2) Subsections 15(1), (2) and (5) and sections 16, 16.1, 27.1 and 37.1 come into force 12 months after the day on which subsection 15(3) comes into force, or on any earlier day that may be fixed by order of the Governor in Council.
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