Balanced Refugee Reform Act (S.C. 2010, c. 8)
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Assented to 2010-06-29
2001, c. 27IMMIGRATION AND REFUGEE PROTECTION ACT
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.
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