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

Short Title

Marginal note:Short title

1 This Act may be cited as the Immigration and Refugee Protection Act.

Interpretation

Marginal note:Definitions

• 2 (1) The definitions in this subsection apply in this Act.

  Board

  Board means the Immigration and Refugee Board, which consists of the Refugee Protection Division, Refugee Appeal Division, Immigration Division and Immigration Appeal Division. (Commission)

  Convention Against Torture

  Convention Against Torture means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed at New York on December 10, 1984. Article 1 of the Convention Against Torture is set out in the schedule. (Convention contre la torture)

  designated foreign national

  designated foreign national has the meaning assigned by subsection 20.1(2). (étranger désigné)

  foreign national

  foreign national means a person who is not a Canadian citizen or a permanent resident, and includes a stateless person. (étranger)

  permanent resident

  permanent resident means a person who has acquired permanent resident status and has not subsequently lost that status under section 46. (résident permanent)

  Refugee Convention

  Refugee Convention means the United Nations Convention Relating to the Status of Refugees, signed at Geneva on July 28, 1951, and the Protocol to that Convention, signed at New York on January 31, 1967. Sections E and F of Article 1 of the Refugee Convention are set out in the schedule. (Convention sur les réfugiés)

• Marginal note:Act includes regulations and instructions

  (2) Unless otherwise indicated, references in this Act to “this Act” include regulations made under it and instructions given under subsection 14.1(1).

Objectives and Application

Marginal note:Objectives — immigration

• 3 (1) The objectives of this Act with respect to immigration are

  • (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;

  • (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;

  • (b.1) to support and assist the development of minority official languages communities in Canada;

  • (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada;

  • (d) to see that families are reunited in Canada;

  • (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society;

  • (f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces;

  • (f.1) to maintain, through the establishment of fair and efficient procedures, the integrity of the Canadian immigration system;

  • (g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities;

  • (h) to protect public health and safety and to maintain the security of Canadian society;

  • (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and

  • (j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.

• Marginal note:Objectives — refugees

  (2) The objectives of this Act with respect to refugees are

  • (a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted;

  • (b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement;

  • (c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution;

  • (d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment;

  • (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;

  • (f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada;

  • (g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and

  • (h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals.

• Marginal note:Application

  (3) This Act is to be construed and applied in a manner that

  • (a) furthers the domestic and international interests of Canada;

  • (b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;

  • (c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;

  • (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;

  • (e) supports the commitment of the Government of Canada to enhance the vitality of the English and French linguistic minority communities in Canada; and

  • (f) complies with international human rights instruments to which Canada is signatory.

Enabling Authority

Marginal note:Minister of Citizenship and Immigration

• 4 (1) Except as otherwise provided in this section, the Minister of Citizenship and Immigration is responsible for the administration of this Act.

• Marginal note:Designated Minister

  (1.1) The Governor in Council may, by order, designate a minister of the Crown as the Minister responsible for all matters under this Act relating to special advocates. If none is designated, the Minister of Justice is responsible for those matters.

• Marginal note:Minister of Public Safety and Emergency Preparedness

  (2) The Minister of Public Safety and Emergency Preparedness is responsible for the administration of this Act as it relates to

  • (a) examinations at ports of entry;

  • (b) the enforcement of this Act, including arrest, detention and removal;

  • (c) the establishment of policies respecting the enforcement of this Act and inadmissibility on grounds of security, violating human or international rights, sanctions, transborder criminality or organized criminality; or

  • (d) declarations referred to in section 42.1.

• Marginal note:Minister of Employment and Social Development

  (2.1) In making regulations under paragraphs 32(d.1) to (d.4), the Governor in Council may confer powers and duties on the Minister of Employment and Social Development.

• Marginal note:Specification

  (3) Subject to subsections (1) to (2), the Governor in Council may, by order,

  • (a) specify which Minister referred to in any of subsections (1) to (2) is the Minister for the purposes of any provision of this Act; and

  • (b) specify that more than one Minister may be the Minister for the purposes of any provision of this Act and specify the circumstances under which each Minister is the Minister.

• Marginal note:Publication

  (4) Any order made under subsection (3) must be published in Part II of the Canada Gazette.

Marginal note:Regulations

• 5 (1) Except as otherwise provided, the Governor in Council may make any regulation that is referred to in this Act or that prescribes any matter whose prescription is referred to in this Act.

• Marginal note:Application

  (1.1) Regulations made under this Act that apply in respect of sponsorship applications or applications for permanent or temporary resident visas, permanent or temporary resident status or work or study permits may, if they so provide, apply in respect of any such applications that are pending on the day on which the regulations are made, other than

  • (a) applications to become a permanent resident made in Canada by protected persons; and

  • (b) applications for permanent resident visas made by persons referred to in subsection 99(2) and sponsorship applications made in respect of those applications.

• Marginal note:Tabling and referral of proposed regulations

  (2) The Minister shall cause a copy of each proposed regulation made under sections 17, 32, 53, 61, 87.2, 102, 116, 150 and 150.1 to be laid before each House of Parliament, and each House shall refer the proposed regulation to the appropriate Committee of that House.

• Marginal note:Alteration of proposed regulation

  (3) A proposed regulation that has been laid before each House of Parliament under subsection (2) does not need to be so laid again, whether or not it has been altered.

• Marginal note:Making of regulations

  (4) The Governor in Council may make the regulation at any time after the proposed regulation has been laid before each House of Parliament under subsection (2).

Marginal note:Designation of officers

• 6 (1) The Minister may designate any persons or class of persons as officers to carry out any purpose of any provision of this Act, and shall specify the powers and duties of the officers so designated.

• Marginal note:Delegation of powers

  (2) Anything that may be done by the Minister under this Act may be done by a person that the Minister authorizes in writing, without proof of the authenticity of the authorization.

• Marginal note:Exception

  (3) Despite subsection (2), the Minister may not delegate the power conferred by subsection 20.1(1), section 22.1 or subsection 42.1(1) or (2) or 77(1).

Agreements

Marginal note:International agreements

7 The Minister, with the approval of the Governor in Council, may enter into an agreement with the government of a foreign state or with an international organization for the purposes of this Act.

Marginal note:Federal-provincial agreements

• 8 (1) The Minister, with the approval of the Governor in Council, may enter into an agreement with the government of any province for the purposes of this Act. The Minister must publish, once a year, a list of the federal-provincial agreements that are in force.

• Marginal note:Consistency with agreement

  (2) Subject to subsection (3) but despite the other provisions of this Act, the following must be consistent with the federal-provincial agreements:

  • (a) the selection and sponsorship of, and the acquisition of status by, foreign nationals under this Act; and

  • (b) regulations governing those matters, including regulations respecting the examination in Canada of applications to become a permanent resident, or respecting the foreign nationals who may be selected on the basis of an investment in Canada.

• Marginal note:Inadmissibility not limited

  (3) Subsection (2) is not to be interpreted as limiting the application of any provision of this Act concerning inadmissibility to Canada.

Marginal note:Sole provincial responsibility — permanent residents

• 9 (1) Where a province has, under a federal-provincial agreement, sole responsibility for the selection of a foreign national who intends to reside in that province as a permanent resident, the following provisions apply to that foreign national, unless the agreement provides otherwise:

  • (a) the foreign national, unless inadmissible under this Act, shall be granted permanent resident status if the foreign national meets the province’s selection criteria;

  • (b) the foreign national shall not be granted permanent resident status if the foreign national does not meet the province’s selection criteria;

  • (c) the foreign national shall not be granted permanent resident status contrary to the provisions of the law of the province governing the number of foreign nationals who may settle in the province as permanent residents, whether that number is an estimate or a maximum, or governing the distribution of that number among classes of foreign nationals; and

  • (d) conditions imposed in accordance with the law of the province have the same force and effect as if they were made under this Act, if they are imposed on a foreign national on or before the grant of permanent resident status.

• Marginal note:Sole provincial responsibility — appeals

  (2) If a federal-provincial agreement gives a province sole responsibility to establish and apply financial criteria with respect to undertakings that sponsors living in that province may make in respect of a foreign national who applies to become a permanent resident, then, unless the agreement provides otherwise, the existence of a right of appeal under the law of that province respecting rejections by provincial officials of applications for sponsorship, for reasons of failing to meet financial criteria or failing to comply with a prior undertaking, prevents the sponsor, except on humanitarian and compassionate grounds, from appealing under this Act against a refusal, based on those reasons, of a visa or permanent resident status.

Marginal note:Consultations with the provinces

• 10 (1) The Minister may consult with the governments of the provinces on immigration and refugee protection policies and programs, in order to facilitate cooperation and to take into consideration the effects that the implementation of this Act may have on the provinces.

• Marginal note:Required consultations

  (2) The Minister must consult with the governments of the provinces respecting the number of foreign nationals in each class who will become permanent residents each year, their distribution in Canada taking into account regional economic and demographic requirements, and the measures to be undertaken to facilitate their integration into Canadian society.

PART 1Immigration to Canada

DIVISION 0.01Biometric Information

Marginal note:Biometric information

10.01 A person who makes a claim, application or request under this Act must follow the procedures set out in the regulations for the collection and verification of biometric information, including procedures for the collection of further biometric information for verification purposes after a person’s claim, application or request is allowed or accepted.

Marginal note:Regulations

10.02 The regulations may provide for any matter relating to the application of section 10.01 and may include provisions respecting

• (a) restrictions on the persons to whom that section applies and on the claims, applications or requests to which it applies;

• (b) the procedures for the collection and verification of biometric information;

• (c) the biometric information that is to be collected;

• (d) the circumstances in which a person is not required to provide certain biometric information;

• (e) the processing of the collected biometric information, including the creation of biometric templates or the conversion of the information into digital biometric formats; and

• (f) the circumstances in which a person is exempt from the application of that section.

DIVISION 0.1Invitation to Make an Application

Marginal note:Application for permanent residence — invitation to apply

• 10.1 (1) A foreign national who seeks to enter or remain in Canada as a member of a class that is referred to in an instruction given under paragraph 10.3(1)(a) may make an application for permanent residence only if the Minister has issued them an invitation to do so, the invitation has not been cancelled under subsection 10.2(5) and the applicable period specified in an instruction given under paragraph 10.3(1)(k) has not expired.

• Marginal note:Invitation to provincial nominees

  (1.1) A foreign national who is a member of a portion of the prescribed class of provincial nominees set out in an instruction given under paragraph 10.3(1)(a) may be issued an invitation only in respect of that class.

• Marginal note:Limitation

  (2) An instruction may be given under paragraph 10.3(1)(a) only in respect of a class that is part of the economic class referred to in subsection 12(2).

• Marginal note:Provincial nominees

  (2.1) In the case of the prescribed class of provincial nominees, an instruction may be given under paragraph 10.3(1)(a) in respect of the foreign nationals who are nominated by the government of a particular province in accordance with an agreement referred to in section 8, or in respect of a portion of those foreign nationals.

• Marginal note:Expression of interest

  (3) A foreign national who wishes to be invited to make an application must submit an expression of interest to the Minister by means of an electronic system in accordance with instructions given under section 10.3 unless the instructions provide that they may do so by other means.

• Marginal note:Inadmissible foreign national

  (4) A foreign national may not submit an expression of interest if they have been determined to be — and continue to be — inadmissible for misrepresentation.

• Marginal note:New expression of interest

  (5) A foreign national who has submitted an expression of interest may not submit another one before the expiry of the period referred to in an instruction given under paragraph 10.3(1)(f).

• Marginal note:Failure to make application

  (6) A foreign national who is invited to make an application and does not do so within the period specified in an instruction given under paragraph 10.3(1)(k) is not eligible to be invited to make an application in relation to the expression of interest on the basis of which the invitation was issued.

• Marginal note:Declining invitation

  (7) Subsection (6) does not apply to a foreign national who declines an invitation to make an application within the period specified in an instruction given under paragraph 10.3(1)(k).

Marginal note:Expression of interest — processing

• 10.2 (1) In processing an expression of interest, the Minister

  • (a) is to determine whether the foreign national is eligible to be invited to make an application by applying the criteria set out in instructions given under paragraph 10.3(1)(e) and is to advise the foreign national of the determination in accordance with instructions given under paragraph 10.3(1)(l); and

  • (b) subject to subsection (2), is to determine whether, in accordance with instructions given under paragraph 10.3(1)(i), the foreign national occupies the rank required to be invited to make an application and, if so, is to issue the invitation in accordance with instructions given under paragraph 10.3(1)(l).

• Marginal note:Limitation

  (2) A determination under paragraph (1)(b) may be made only if the number of invitations that have been issued is less than the number provided for in an instruction given under paragraph 10.3(1)(j).

• Marginal note:Electronic system

  (3) The Minister is to use an electronic system to carry out any applicable instruction given under subsection 10.3(1) and to make a determination under paragraph (1)(a) or (b).

• Marginal note:Compliance with instructions

  (4) An expression of interest must be processed in compliance with any applicable instruction.

• Marginal note:Cancellation of invitation

  (5) The Minister may cancel an invitation to make an application if the invitation was issued in error.

Marginal note:Instructions

• 10.3 (1) The Minister may give instructions governing any matter relating to the application of this Division, including instructions respecting

  • (a) the classes in respect of which subsection 10.1(1) applies;

  • (b) the electronic system referred to in subsections 10.1(3) and 10.2(3);

  • (c) the submission and processing of an expression of interest, including by means of the electronic system;

  • (d) the circumstances in which an expression of interest may be submitted by means other than the electronic system and respecting those other means;

  • (e) the criteria that a foreign national must meet to be eligible to be invited to make an application;

  • (f) the period during which a foreign national remains eligible to be invited to make an application;

  • (g) the personal information that the Minister may disclose under section 10.4 and the entities to which that information may be disclosed;

  • (h) the basis on which an eligible foreign national may be ranked;

  • (h.1) subject to subsection (1.01), the establishment of categories of eligible foreign nationals for the purposes of ranking, which groupings may consist of

    • (i) all eligible foreign nationals,

    • (ii) eligible foreign nationals who are eligible to be members of a class referred to in an instruction given under paragraph (a), or

    • (iii) eligible foreign nationals who are eligible to be members of a category established in an instruction given under paragraph (h.2);

  • (h.2) the establishment of categories for the purposes of ranking and the criteria for eligibility to be a member of a category;

  • (i) the rank within a grouping that an eligible foreign national must occupy to be invited to make an application in respect of a class referred to in an instruction given under paragraph (a);

  • (j) the number of invitations that may be issued within a specified period in respect of a grouping;

  • (j.1) the class referred to in an instruction given under paragraph (a) in respect of which an eligible foreign national who is invited to make an application must apply, if the foreign national is eligible to be a member of more than one class;

  • (k) the period within which an application must be made once an invitation has been issued;

  • (l) the means by which a foreign national is to be advised of any matter relating to their expression of interest, including an invitation to make an application; and

  • (m) any matter for which a recommendation to the Minister or a decision may or must be made by a designated person, institution or organization with respect to a foreign national.

• Marginal note:Category — condition

  (1.01) An instruction given under paragraph (1)(h.1) must not establish a category in respect of which a public consultation process referred to in subsection 10.5(1) has not been given the opportunity to provide advice and recommendations.

• Marginal note:Category — economic goal

  (1.1) If the Minister establishes a category in an instruction given under paragraph (1)(h.2), the Minister shall set out, in the instruction, the economic goal that the Minister seeks to support in establishing the category.

• Marginal note:Clarification

  (2) For greater certainty, an instruction given under paragraph (1)(j) may provide that the number of invitations that may be issued in any specified period in respect of a grouping be zero.

• Marginal note:Application of instructions

  (3) An instruction given under any of paragraphs (1)(a), (b) and (e) to (l) applies in respect of an expression of interest that is submitted before the day on which the instruction takes effect, unless the instruction provides otherwise.

• Marginal note:Publication

  (4) Instructions given under subsection (1) must be published on the Department of Citizenship and Immigration’s Internet site. Instructions given under any of paragraphs (1)(a), (d) to (g), (k) and (l) must also be published in the Canada Gazette.

• Marginal note:Criteria provided for under other Divisions

  (5) For greater certainty, an instruction given under subsection (1) may provide for criteria that are more stringent than the criteria or requirements provided for in or under any other Division of this Act regarding applications for permanent residence.

Marginal note:Disclosure of information

10.4 For the purpose of facilitating the selection of a foreign national as a member of the economic class or as a temporary resident, the Minister may disclose to an entity that is referred to in an instruction given under paragraph 10.3(1)(g) the personal information referred to in that instruction that is

• (a) provided to the Minister by the foreign national under section 10.1 or by a third party for the purposes of section 10.1 or 10.2; or

• (b) created by the Minister, on the basis of the information referred to in paragraph (a), for the purposes of sections 10.1 to 10.3.

Marginal note:Consultation process

• 10.5 (1) For the purpose of establishing categories of eligible foreign nationals under subparagraph 10.3(1)(h.1)(iii), the Minister must engage in a public consultation process with stakeholders, including provinces and territories, industry, unions, employers, workers, worker advocacy groups, settlement provider organizations and immigration researchers and practitioners, to obtain information, advice and recommendations in respect of the labour market conditions, including occupations expected to face shortage conditions, as well as on how categories can be formed to meet economic goals.

• Marginal note:Advice and recommendations

  (2) The advice and recommendations from the public consultation process must be based on written submissions provided by relevant industry members and stakeholders.

• Marginal note:Report

  (3) The Minister shall cause to be tabled before each House of Parliament, not later than the fifth sitting day of that House after January 31 following the end of each fiscal year, a report containing the list of the categories of eligible foreign nationals established in an instruction made under paragraph 10.3(1)(h.1) and the selection criteria and the process applied for the establishment of those categories.

• Marginal note:Referral

  (4) After it is tabled, the report stands referred to the committee of the Senate, the House of Commons or both Houses of Parliament that may be designated or established for the purpose of reviewing the report.

DIVISION 1Requirements and Selection

Requirements

Marginal note:Application before entering Canada

• 11 (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.

• Marginal note:Electronic travel authorization

  (1.01) Despite subsection (1), a foreign national must, before entering Canada, apply for an electronic travel authorization required by the regulations by means of an electronic system, unless the regulations provide that the application may be made by other means. The application may be examined by an officer and, if the officer determines that the foreign national is not inadmissible and meets the requirements of this Act, the authorization may be issued by the officer.

• Marginal note:Restriction

  (1.1) A designated foreign national may not make an application for permanent residence under subsection (1)

  • (a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

  • (b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

  • (c) in any other case, until five years after the day on which they become a designated foreign national.

• Marginal note:Suspension of application

  (1.2) The processing of an application for permanent residence under subsection (1) of a foreign national who, after the application is made, becomes a designated foreign national is suspended

  • (a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

  • (b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

  • (c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

• Marginal note:Refusal to consider application

  (1.3) The officer may refuse to consider an application for permanent residence made under subsection (1) if

  • (a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and

  • (b) less than 12 months have passed since the end of the applicable period referred to in subsection (1.1) or (1.2).

• Marginal note:If sponsor does not meet requirements

  (2) The officer may not issue a visa or other document to a foreign national whose sponsor does not meet the sponsorship requirements of this Act.

11.1 [Repealed, 2015, c. 36, s. 170]

Marginal note:Visa or other document not to be issued

• 11.2 (1) An officer may not issue a visa or other document in respect of an application for permanent residence to a foreign national who was issued an invitation under Division 0.1 to make that application if — at the time the invitation was issued or at the time the officer received their application — the foreign national

  • (a) did not meet the criteria set out in an instruction given under paragraph 10.3(1)(e);

  • (b) did not have the qualifications on the basis of which they were ranked under an instruction given under paragraph 10.3(1)(h) and were issued the invitation; or

  • (c) did not meet the criteria for membership in a category that was established in an instruction given under paragraph 10.3(1)(h.2), if they were issued an invitation on the basis that they were eligible to be a member of that category.

• Marginal note:Exceptions

  (2) Despite subsection (1), an officer may issue the visa or other document if, at the time the officer received their application,

  • (a) the foreign national did not meet the criteria set out in an instruction given under paragraph 10.3(1)(e) — or they did not have the qualifications on the basis of which they were ranked under an instruction given under paragraph 10.3(1)(h) or did not meet the criteria for membership in a category that was established in an instruction given under paragraph 10.3(1)(h.2) — because the foreign national’s birthday occurred after the invitation was issued; or

  • (b) the foreign national did not have the qualifications they had at the time the invitation was issued and on the basis of which they were ranked under an instruction given under paragraph 10.3(1)(h), but

    • (i) they met the criteria set out in an instruction given under paragraph 10.3(1)(e),

    • (i.1) they met the criteria for membership of a category established in an instruction given under paragraph 10.3(1)(h.2), if they were issued the invitation on the basis that they were eligible to be a member of that category, and

    • (ii) they occupied a rank that is not lower than the rank that a foreign national was required to have occupied to be invited to make an application.

Selection of Permanent Residents

Marginal note:Family reunification

• 12 (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.

• Marginal note:Economic immigration

  (2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.

• Marginal note:Refugees

  (3) A foreign national, inside or outside Canada, may be selected as a person who under this Act is a Convention refugee or as a person in similar circumstances, taking into account Canada’s humanitarian tradition with respect to the displaced and the persecuted.

Sponsorship of Foreign Nationals

Marginal note:Sponsorship of foreign nationals

• 13 (1) A Canadian citizen or permanent resident, or a group of Canadian citizens or permanent residents, a corporation incorporated under a law of Canada or of a province or an unincorporated organization or association under federal or provincial law — or any combination of them — may sponsor a foreign national, subject to the regulations.

• (2) and (3) [Repealed, 2012, c. 17, s. 7]

• Marginal note:Instructions of Minister

  (4) An officer shall apply the regulations on sponsorship referred to in paragraph 14(2)(e) in accordance with any instructions that the Minister may make.

Undertakings

Marginal note:Undertaking binding

13.1 An undertaking given under this Act in respect of a foreign national — including a sponsorship undertaking — is binding on the person who gives it.

Marginal note:Undertaking required

• 13.2 (1) If required to do so by the regulations, a foreign national who makes an application for a visa or for permanent or temporary resident status must obtain the undertaking specified in the regulations.

• Marginal note:Minister’s instructions

  (2) An officer must apply the regulations made under paragraph 14(2)(e.1) in accordance with any instructions that the Minister may give.

Regulations

Marginal note:Regulations

• 14 (1) The regulations may provide for any matter relating to the application of this Division, and may define, for the purposes of this Act, the terms used in this Division.

• Marginal note:Regulations

  (2) The regulations may prescribe, and govern any matter relating to, classes of permanent residents or foreign nationals, including the classes referred to in section 12, and may include provisions respecting

  • (a) selection criteria, the weight, if any, to be given to all or some of those criteria, the procedures to be followed in evaluating all or some of those criteria and the circumstances in which an officer may substitute for those criteria their evaluation of the likelihood of a foreign national’s ability to become economically established in Canada;

  • (b) applications for visas and other documents and their issuance or refusal, with respect to foreign nationals and their family members;

  • (c) the number of applications that may be processed or approved in a year, the number of visas and other documents that may be issued in a year, and the measures to be taken when that number is exceeded;

  • (d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals;

  • (e) sponsorships;

  • (e.1) undertakings, and penalties for failure to comply with undertakings;

  • (f) deposits or guarantees of the performance of obligations under this Act that are to be given by any person to the Minister;

  • (f.1) the power to inspect, including the power to require documents to be provided for inspection, for the purpose of verifying compliance with undertakings; and

  • (g) any matter for which a recommendation to the Minister or a decision may or must be made by a designated person, institution or organization with respect to a foreign national or sponsor.

• (3) to (5) [Repealed, 2015, c. 36, s. 171]

Minister’s Instructions

Marginal note:Economic immigration

• 14.1 (1) For the purpose of supporting the attainment of economic goals established by the Government of Canada, the Minister may give instructions establishing a class of permanent residents as part of the economic class referred to in subsection 12(2) and, in respect of the class that is established, governing any matter referred to in paragraphs 14(2)(a) to (g), 26(a), (b), (d) and (e) and 32(d) and the fees for processing applications for permanent resident visas or for permanent resident status and providing for cases in which those fees may be waived.

• Marginal note:Limitation

  (2) Despite any instruction given by the Minister under paragraph 87.3(3)(c), no more than 2,750 applications in a class established under subsection (1) may be processed in any year.

• Marginal note:Application of regulations

  (3) Subject to subsection (4), regulations that apply to all classes prescribed under subsection 14(2) that are part of the economic class referred to in subsection 12(2) apply to a class established under subsection (1).

• Marginal note:Exception

  (4) The Minister may specify in an instruction that regulations made under subsection 14(2), paragraph 26(a), (b), (d) or (e) or 32(d) or subsection 89(1) do not apply to a class established under subsection (1).

• Marginal note:Non-application of regulations

  (5) For greater certainty, regulations that apply to only one class prescribed under subsection 14(2) that is part of the economic class referred to in subsection 12(2) — or to only certain classes that are part of that economic class — do not apply to a class established under subsection (1). However, an instruction given under that subsection may specify otherwise.

• Marginal note:Non-application of instructions

  (6) The instructions do not apply in respect of a class prescribed by the regulations.

• Marginal note:Compliance with instructions

  (7) An officer must comply with the instructions before processing an application and when processing one.

• Marginal note:Amendments to instructions

  (8) An instruction that amends another instruction may, if it so provides, apply in respect of applications in a class established by the original instruction that are pending on the day on which the amending instruction takes effect.

• Marginal note:Effective period — limitation

  (9) An instruction given under subsection (1) has effect for the period specified in the instruction, which is not to exceed five years starting on the day on which the instruction first takes effect. No amendment to or renewal of an instruction may extend the five-year period.

• Marginal note:Pending applications

  (10) Despite subsection (9), the Minister may direct officers to process, after the end of the effective period of an instruction, applications in a class established by the instruction that were made during the period in which the instruction had effect.

• Marginal note:Service Fees Act

  (11) The Service Fees Act does not apply in respect of the fees referred to in subsection (1).

• Marginal note:Publication

  (12) Instructions must be published in the Canada Gazette.

DIVISION 2Examination

Marginal note:Examination by officer

• 15 (1) An officer is authorized to proceed with an examination if a person makes an application to the officer in accordance with this Act or if an application is made under subsection 11(1.01).

• Marginal note:Provincial criteria

  (2) In the case of a foreign national referred to in subsection 9(1), an examination of whether the foreign national complies with the applicable selection criteria shall be conducted solely on the basis of documents delivered by the province indicating that the competent authority of the province is of the opinion that the foreign national complies with the province’s selection criteria.

• Marginal note:Inspection

  (3) An officer may board and inspect any means of transportation bringing persons to Canada, examine any person carried by that means of transportation and any record or document respecting that person, seize and remove the record or document to obtain copies or extracts and hold the means of transportation until the inspection and examination are completed.

• Marginal note:Instructions

  (4) The officer shall conduct the examination in accordance with any instructions that the Minister may give.

Marginal note:Health insurance policy

15.1 A health insurance policy purchased from an insurance company outside Canada that is approved by the Minister satisfies any requirement in an instruction given under subsection 15(4) that a foreign national who applies for a temporary resident visa in order to visit their Canadian citizen or permanent resident child or grandchild for an extended period must have private health insurance.

Marginal note:Obligation — answer truthfully

• 16 (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.

• Marginal note:Obligation — appear for examination

  (1.1) A person who makes an application must, on request of an officer, appear for an examination.

• Marginal note:Obligation — relevant evidence

  (2) In the case of a foreign national,

  • (a) the relevant evidence referred to in subsection (1) includes photographic and fingerprint evidence; and

  • (b) subject to the regulations, the foreign national must submit to a medical examination.

• Marginal note:Obligation — interview

  (2.1) A foreign national who makes an application must, on request of an officer, appear for an interview for the purpose of an investigation conducted by the Canadian Security Intelligence Service under section 15 of the Canadian Security Intelligence Service Act for the purpose of providing advice or information to the Minister under section 14 of that Act and must answer truthfully all questions put to them during the interview.

• Marginal note:Evidence relating to identity

  (3) An officer may require or obtain from a permanent resident or a foreign national who is arrested, detained, subject to an examination or subject to a removal order, any evidence — photographic, fingerprint or otherwise — that may be used to establish their identity or compliance with this Act.

Marginal note:Regulations

17 The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting the conduct of examinations.

DIVISION 3Entering and Remaining in Canada

Entering and Remaining

Marginal note:Examination by officer

• 18 (1) Subject to the regulations, every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada or is or may become authorized to enter and remain in Canada.

• Marginal note:Transit

  (2) Subsection (1) also applies to persons who, without leaving Canada, seek to leave an area at an airport that is reserved for passengers who are in transit or who are waiting to depart Canada.

• Marginal note:Powers of officer

  (3) Even though a person seeking to enter Canada is not, in accordance with regulations made under subsection 26(2), required to appear for an examination, an officer may require the person to do so.

Marginal note:Right of entry of citizens and Indians

• 19 (1) Every Canadian citizen within the meaning of the Citizenship Act and every person registered as an Indian under the Indian Act has the right to enter and remain in Canada in accordance with this Act, and an officer shall allow the person to enter Canada if satisfied following an examination on their entry that the person is a citizen or registered Indian.

• Marginal note:Right of entry of permanent residents

  (2) An officer shall allow a permanent resident to enter Canada if satisfied following an examination on their entry that they have that status.

Marginal note:Obligation on entry

• 20 (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,

  • (a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and

  • (b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay.

• Marginal note:Declaration

  (1.1) A foreign national who is the subject of a declaration made under subsection 22.1(1) must not seek to enter or remain in Canada as a temporary resident.

• Marginal note:Provincial criteria

  (2) A foreign national referred to in subsection 9(1) must also establish, to become a permanent resident, that they hold a document issued by the province indicating that the competent authority of the province is of the opinion that the foreign national complies with the province’s selection criteria.

Marginal note:Designation — human smuggling or other irregular arrival

• 20.1 (1) The Minister may, by order, having regard to the public interest, designate as an irregular arrival the arrival in Canada of a group of persons if he or she

  • (a) is of the opinion that examinations of the persons in the group, particularly for the purpose of establishing identity or determining inadmissibility — and any investigations concerning persons in the group — cannot be conducted in a timely manner; or

  • (b) has reasonable grounds to suspect that, in relation to the arrival in Canada of the group, there has been, or will be, a contravention of subsection 117(1) for profit, or for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

• Marginal note:Effect of designation

  (2) When a designation is made under subsection (1), a foreign national — other than a foreign national referred to in section 19 — who is part of the group whose arrival is the subject of the designation becomes a designated foreign national unless, on arrival, they hold the visa or other document required under the regulations and, on examination, the officer is satisfied that they are not inadmissible.

• Marginal note:Statutory Instruments Act

  (3) An order made under subsection (1) is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.

Marginal note:Application for permanent residence — restriction

• 20.2 (1) A designated foreign national may not apply to become a permanent resident

  • (a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

  • (b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

  • (c) in any other case, until five years after the day on which they become a designated foreign national.

• Marginal note:Suspension of application for permanent residence

  (2) The processing of an application for permanent residence of a foreign national who, after the application is made, becomes a designated foreign national is suspended

  • (a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

  • (b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

  • (c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

• Marginal note:Refusal to consider application

  (3) The officer may refuse to consider an application for permanent residence if

  • (a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and

  • (b) less than 12 months have passed since the end of the applicable period referred to in subsection (1) or (2).

Status and Authorization to Enter

Marginal note:Permanent resident

• 21 (1) A foreign national becomes a permanent resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(a) and subsection 20(2) and is not inadmissible.

• Marginal note:Protected person

  (2) Except in the case of a person described in subsection 112(3) or a person who is a member of a prescribed class of persons, a person whose application for protection has been finally determined by the Board to be a Convention refugee or to be a person in need of protection, or a person whose application for protection has been allowed by the Minister, becomes, subject to any federal-provincial agreement referred to in subsection 9(1), a permanent resident if the officer is satisfied that they have made their application in accordance with the regulations and that they are not inadmissible on any ground referred to in section 34, 35 or 35.1, subsection 36(1) or section 37 or 38.

• Marginal note:Pending application — subsection 108(2)

  (3) A person in respect of whom the Minister has made an application under subsection 108(2) may not become a permanent resident under subsection (2) while the application is pending.

Marginal note:Temporary resident

• 22 (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b), is not inadmissible and is not the subject of a declaration made under subsection 22.1(1).

• Marginal note:Dual intent

  (2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.

Marginal note:Declaration

• 22.1 (1) The Minister may, on the Minister’s own initiative, declare that a foreign national, other than a foreign national referred to in section 19, may not become a temporary resident if the Minister is of the opinion that it is justified by public policy considerations.

• Marginal note:Effective period

  (2) A declaration has effect for the period specified by the Minister, which is not to exceed 36 months.

• Marginal note:Revocation

  (3) The Minister may, at any time, revoke a declaration or shorten its effective period.

• Marginal note:Report to Parliament

  (4) The report required under section 94 must include the number of declarations made under subsection (1) and set out the public policy considerations that led to the making of the declarations.

Marginal note:Entry to complete examination or hearing

23 An officer may authorize a person to enter Canada for the purpose of further examination or an admissibility hearing under this Part.

Marginal note:Temporary resident permit

• 24 (1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.

• Marginal note:Exception

  (2) A foreign national referred to in subsection (1) to whom an officer issues a temporary resident permit outside Canada does not become a temporary resident until they have been examined upon arrival in Canada.

• Marginal note:Instructions of Minister

  (3) In applying subsection (1), the officer shall act in accordance with any instructions that the Minister may make.

• Marginal note:Restriction — pending application for protection

  (3.1) A foreign national whose claim for refugee protection has been determined to be ineligible to be referred to the Refugee Protection Division may not request a temporary resident permit if they have made an application for protection to the Minister that is pending.

• Marginal note:Restriction

  (4) A foreign national whose claim for refugee protection has not been allowed may not request a temporary resident permit if less than 12 months have passed since

  • (a) the day on which their claim was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division, in the case where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review; or

  • (b) in any other case, the latest of

    • (i) the day on which their claim was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or, if there was more than one such rejection or determination, the day on which the last one occurred,

    • (ii) the day on which their claim was rejected or determined to be withdrawn or abandoned by the Refugee Appeal Division or, if there was more than one such rejection or determination, the day on which the last one occurred, and

    • (iii) the day on which the Federal Court refused their application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their claim.

• Marginal note:Restriction — designated foreign national

  (5) A designated foreign national may not request a temporary resident permit

  • (a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

  • (b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

  • (c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

• Marginal note:Suspension of request

  (6) The processing of a request for a temporary resident permit of a foreign national who, after the request is made, becomes a designated foreign national is suspended

  • (a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

  • (b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

  • (c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

• Marginal note:Refusal to consider request

  (7) The officer may refuse to consider a request for a temporary resident permit if

  • (a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and

  • (b) less than 12 months have passed since the end of the applicable period referred to in subsection (5) or (6).

Marginal note:Humanitarian and compassionate considerations — request of foreign national

• 25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35, 35.1 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35, 35.1 or 37 — who applies for a permanent resident visa, 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:Restriction — designated foreign national

  (1.01) A designated foreign national may not make a request under subsection (1)

  • (a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

  • (b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

  • (c) in any other case, until five years after the day on which they become a designated foreign national.

• Marginal note:Suspension of request

  (1.02) The processing of a request under subsection (1) of a foreign national who, after the request is made, becomes a designated foreign national is suspended

  • (a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

  • (b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

  • (c) in any other case, until five years after the day on which they become a designated foreign national.

• Marginal note:Refusal to consider request

  (1.03) The Minister may refuse to consider a request under subsection (1) if

  • (a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and

  • (b) less than 12 months have passed since the end of the applicable period referred to in subsection (1.01) or (1.02).

• 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

  • (a) the foreign national has already made such a request and the request is pending;

  • (a.1) the request is for an exemption from any of the criteria or obligations of Division 0.1;

  • (b) the foreign national has made a claim for refugee protection that is pending before the Refugee Protection Division or the Refugee Appeal Division;

  • (b.1) the foreign national made a claim for refugee protection that was determined to be ineligible to be referred to the Refugee Protection Division and they made an application for protection to the Minister that is pending; or

  • (c) subject to subsection (1.21), less than 12 months have passed since

    • (i) the day on which the foreign national’s claim for refugee protection was rejected or determined to be withdrawn — after substantive evidence was heard — or abandoned by the Refugee Protection Division, in the case where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review, or

    • (ii) in any other case, the latest of

      • (A) the day on which the foreign national’s claim for refugee protection was rejected or determined to be withdrawn — after substantive evidence was heard — or abandoned by the Refugee Protection Division or, if there was more than one such rejection or determination, the day on which the last one occurred,

      • (B) the day on which the foreign national’s claim for refugee protection was rejected or determined to be withdrawn — after substantive evidence was heard — or abandoned by the Refugee Appeal Division or, if there was more than one such rejection or determination, the day on which the last one occurred, and

      • (C) the day on which the Federal Court refused the foreign national’s application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their claim for refugee protection.

• Marginal note:Exception to paragraph (1.2)(c)

  (1.21) Paragraph (1.2)(c) does not apply in respect of a foreign national

  • (a) who, in the case of removal, would be subjected to a risk to their life, caused by the inability of each of their countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, to provide adequate health or medical care; or

  • (b) whose removal would have an adverse effect on the best interests of a child directly affected.

• 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.

• Marginal note:Provincial criteria

  (2) 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: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 — other than under section 34, 35, 35.1 or 37 — 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 foreign national complies with any conditions imposed by the Minister and 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.

• Marginal note:Conditions

  (4) The conditions referred to in subsection (1) may include a requirement for the foreign national to obtain an undertaking or to obtain a determination of their eligibility from a third party that meets any criteria specified by the Minister.

Marginal note:Regulations

• 26 (1) The regulations may provide for any matter relating to the application of sections 18 to 25.2, and may include provisions respecting

  • (a) entering, remaining in and re-entering Canada;

  • (b) permanent resident status or temporary resident status, including acquisition of that status;

  • (b.1) declarations referred to in subsection 22.1(1);

  • (c) the circumstances in which all or part of the considerations referred to in section 24 may be taken into account;

  • (d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals;

  • (d.1) undertakings that may or must be given in respect of requests made under subsection 25(1) or undertakings referred to in subsection 25.2(4), and penalties for failure to comply with undertakings;

  • (d.2) the determination of eligibility referred to in subsection 25.2(4); and

  • (e) deposits or guarantees of the performance of obligations under this Act that are to be given to the Minister.

• Marginal note:Exemptions

  (2) The regulations may exempt persons or categories of persons from the application of section 18 and prescribe the conditions under which the exemption applies.

Rights and Obligations of Permanent and Temporary Residents

Marginal note:Right of permanent residents

• 27 (1) A permanent resident of Canada has the right to enter and remain in Canada, subject to the provisions of this Act.

• Marginal note:Conditions

  (2) A permanent resident must comply with any conditions imposed under the regulations or under instructions given under subsection 14.1(1).

Marginal note:Residency obligation

• 28 (1) A permanent resident must comply with a residency obligation with respect to every five-year period.

• Marginal note:Application

  (2) The following provisions govern the residency obligation under subsection (1):

  • (a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are

    • (i) physically present in Canada,

    • (ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,

    • (iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province,

    • (iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or

    • (v) referred to in regulations providing for other means of compliance;

  • (b) it is sufficient for a permanent resident to demonstrate at examination

    • (i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;

    • (ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and

  • (c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.

Marginal note:Right of temporary residents

• 29 (1) A temporary resident is, subject to the other provisions of this Act, authorized to enter and remain in Canada on a temporary basis as a visitor or as a holder of a temporary resident permit.

• Marginal note:Obligation — temporary resident

  (2) A temporary resident must comply with any conditions imposed under the regulations and with any requirements under this Act, must leave Canada by the end of the period authorized for their stay and may re-enter Canada only if their authorization provides for re-entry.

• Marginal note:Extended period

  (3) In the case of a temporary resident who is authorized to enter and remain in Canada for an extended period in order to visit a Canadian citizen or permanent resident who is their child or grandchild, the period referred to in subsection (2) is five years.

Marginal note:Work and study in Canada

• 30 (1) A foreign national may not work or study in Canada unless authorized to do so under this Act.

• Marginal note:Authorization

  (1.1) An officer may, on application, authorize a foreign national to work or study in Canada if the foreign national meets the conditions set out in the regulations.

• Marginal note:Instructions

  (1.2) Despite subsection (1.1), the officer shall refuse to authorize the foreign national to work in Canada if, in the officer’s opinion, public policy considerations that are specified in the instructions given by the Minister justify such a refusal.

• Marginal note:Concurrence of second officer

  (1.3) In applying subsection (1.2), any refusal to give authorization to work in Canada requires the concurrence of a second officer.

• Marginal note:Purpose

  (1.4) The instructions referred to in subsection (1.2) shall prescribe public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation.

• Marginal note:Revocation of work permit

  (1.41) An officer may revoke a work permit if, in the officer’s opinion, public policy considerations that are specified in instructions given by the Minister justify the revocation.

• Marginal note:For greater certainty

  (1.42) For greater certainty, subsection (1.41) does not affect any other lawful authority to revoke a work permit.

• Marginal note:Revocation or suspension of opinion

  (1.43) If, in the view of the Department of Employment and Social Development, public policy considerations that are specified in instructions given by the Minister of Employment and Social Development justify it, that Department may

  • (a) revoke an assessment provided by that Department with respect to an application for a work permit;

  • (b) suspend the effects of the assessment; or

  • (c) refuse to process a request for such an assessment.

• Marginal note:For greater certainty

  (1.44) For greater certainty, subsection (1.43) does not affect any other lawful authority to revoke an assessment referred to in that subsection.

• Marginal note:Publication

  (1.5) Instructions given under this section shall be published in the Canada Gazette.

• Marginal note:Application

  (1.6) The instructions take effect on the day on which they are published, or on any later day specified in the instructions, and apply in respect of all applications for authorization to work in Canada and requests to provide an assessment with respect to an application for a work permit, including those applications and requests that were made before that day and for which a final decision has not been made.

• Marginal note:Revocation

  (1.7) The instructions cease to have effect on the day on which a notice of revocation is published in the Canada Gazette.

• Marginal note:Minor children

  (2) Every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level.

Status Document

Marginal note:Status document

• 31 (1) A permanent resident and a protected person shall be provided with a document indicating their status.

• Marginal note:Effect

  (2) For the purposes of this Act, unless an officer determines otherwise

  • (a) a person in possession of a status document referred to in subsection (1) is presumed to have the status indicated; and

  • (b) a person who is outside Canada and who does not present a status document indicating permanent resident status is presumed not to have permanent resident status.

• Marginal note:Travel document

  (3) A permanent resident outside Canada who is not in possession of a status document indicating permanent resident status shall, following an examination, be issued a travel document if an officer is satisfied that

  • (a) they comply with the residency obligation under section 28;

  • (b) an officer has made the determination referred to in paragraph 28(2)(c); or

  • (c) they were physically present in Canada at least once within the 365 days before the examination and they have made an appeal under subsection 63(4) that has not been finally determined or the period for making such an appeal has not yet expired.

Refugee Travel Document

Marginal note:Designated foreign national

31.1 For the purposes of Article 28 of the Refugee Convention, a designated foreign national whose claim for refugee protection or application for protection is accepted is lawfully staying in Canada only if they become a permanent resident or are issued a temporary resident permit under section 24.

Regulations

Marginal note:Regulations

32 The regulations may provide for any matter relating to the application of sections 27 to 31, may define, for the purposes of this Act, the terms used in those sections, and may include provisions respecting

• (a) classes of temporary residents, such as students and workers;

• (b) selection criteria for each class of foreign national and for their family members, and the procedures for evaluating all or some of those criteria;

• (c) anything referred to in paragraph (b) for which a decision or recommendation may or must be made by a designated person, institution or organization;

• (d) the conditions that must or may be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals, including conditions respecting work or study;

• (d.1) the conditions that must or may be imposed, individually or by class, on individuals and entities — including employers and educational institutions — in respect of permanent residents and foreign nationals, or that must or may be varied or cancelled;

• (d.2) the power to inspect — including the power to require documents to be provided by individuals and entities, including employers and educational institutions, for inspection — for the purpose of verifying compliance with the conditions imposed under paragraphs (d) and (d.1);

• (d.3) the consequences of a failure to comply with the conditions referred to in paragraphs (d) and (d.1);

• (d.4) a system of administrative monetary penalties applicable to the contravention by an employer of any conditions referred to in paragraph (d.1) and the amounts of those penalties;

• (d.5) the requirement for an employer to provide a prescribed person with prescribed information in relation to a foreign national’s authorization to work in Canada for the employer;

• (e) the residency obligation under section 28, including rules for calculating applicable days and periods; and

• (f) the circumstances in which a document indicating status or a travel document may or must be issued, renewed or revoked.

DIVISION 4Inadmissibility

Marginal note:Rules of interpretation

33 The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.

Marginal note:Security

• 34 (1) A permanent resident or a foreign national is inadmissible on security grounds for

  • (a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests;

  • (b) engaging in or instigating the subversion by force of any government;

  • (b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;

  • (c) engaging in terrorism;

  • (d) being a danger to the security of Canada;

  • (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or

  • (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).

• (2) [Repealed, 2013, c. 16, s. 13]

Marginal note:Human or international rights violations

• 35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for

  • (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;

  • (b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or

  • (c) [Repealed, 2023, c. 19, s. 5]

  • (c.1) having engaged in conduct that would, in the opinion of the Minister, constitute an offence under section 240.1 of the Criminal Code.

  • (d) [Repealed, 2023, c. 19, s. 5]

  • (e) [Repealed, 2023, c. 19, s. 5]

• (2) [Repealed, 2023, c. 19, s. 5]

Marginal note:Sanctions

• 35.1 (1) A foreign national is inadmissible on grounds of sanctions if

  • (a) their entry into or stay in Canada is restricted under a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a person, entity or foreign state, within the meaning of section 2 of the Special Economic Measures Act, against which or whom Canada has imposed or has agreed to impose sanctions in concert with that organization or association;

  • (b) they are currently the subject of an order or regulation made under section 4 of the Special Economic Measures Act; or

  • (c) they are currently the subject of an order or regulation made under section 4 of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).

• Marginal note:Clarification

  (2) For greater certainty, despite section 33, a foreign national whose entry into or stay in Canada is no longer restricted under a decision, resolution or measure referred to in paragraph (1)(a) or who ceases being the subject of an order or regulation referred to in paragraph (1)(b) or (c) is no longer inadmissible under that paragraph.

Marginal note:Serious criminality

• 36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

  • (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

  • (b) having been convicted 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; or

  • (c) committing an act outside Canada that is an offence in the place where it was committed and 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.

• Marginal note:Criminality

  (2) A foreign national is inadmissible on grounds of criminality for

  • (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

  • (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament; or

  • (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament.

  • (d) [Repealed, 2023, c. 32, s. 53]

• Marginal note:Transborder criminality

  (2.1) A foreign national is inadmissible on grounds of transborder criminality for committing, on entering Canada, a prescribed offence under an Act of Parliament.

• Marginal note:Application

  (3) The following provisions govern subsections (1) to (2.1):

  • (a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;

  • (b) inadmissibility under subsections (1) to (2.1) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;

  • (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;

  • (d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and

  • (e) inadmissibility under subsections (1) to (2.1) 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.

Marginal note:Organized criminality

• 37 (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for

  • (a) being a member of 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, or engaging in activity that is part of such a pattern; or

  • (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime.

• Marginal note:Application

  (2) Paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.

Marginal note:Health grounds

• 38 (1) A foreign national is inadmissible on health grounds if their health condition

  • (a) is likely to be a danger to public health;

  • (b) is likely to be a danger to public safety; or

  • (c) might reasonably be expected to cause excessive demand on health or social services.

• Marginal note:Exception

  (2) Paragraph (1)(c) does not apply in the case of a foreign national who

  • (a) has been determined to be a member of the family class and to be the spouse, common-law partner or child of a sponsor within the meaning of the regulations;

  • (b) has applied for a permanent resident visa as a Convention refugee or a person in similar circumstances;

  • (c) is a protected person; or

  • (d) is, where prescribed by the regulations, the spouse, common-law partner, child or other family member of a foreign national referred to in any of paragraphs (a) to (c).

Marginal note:Financial reasons

39 A foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themself or any other person who is dependent on them, and have not satisfied an officer that adequate arrangements for care and support, other than those that involve social assistance, have been made.

Marginal note:Misrepresentation

• 40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation

  • (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

  • (b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;

  • (c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or

  • (d) on ceasing to be a citizen under

    • (i) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force,

    • (ii) subsection 10(1) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act, or

    • (iii) subsection 10.1(3) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act.

• Marginal note:Application

  (2) The following provisions govern subsection (1):

  • (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and

  • (b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.

• Marginal note:Inadmissible

  (3) A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a).

Marginal note:Cessation of refugee protection — foreign national

• 40.1 (1) A foreign national is inadmissible on a final determination under subsection 108(2) that their refugee protection has ceased.

• Marginal note:Cessation of refugee protection — permanent resident

  (2) A permanent resident is inadmissible on a final determination that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d).

Marginal note:Non-compliance with Act

41 A person is inadmissible for failing to comply with this Act

• (a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act; and

• (b) in the case of a permanent resident, through failing to comply with subsection 27(2) or section 28.

Marginal note:Inadmissible family member

• 42 (1) A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if

  • (a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or

  • (b) they are an accompanying family member of an inadmissible person.

• Marginal note:Exception

  (2) In the case of a foreign national referred to in subsection (1) who is a temporary resident or who has made an application for temporary resident status or an application to remain in Canada as a temporary resident,

  • (a) the matters referred to in paragraph (1)(a) constitute inadmissibility only if the family member is inadmissible under section 34, 35, 35.1 or 37; and

  • (b) the matters referred to in paragraph (1)(b) constitute inadmissibility only if the foreign national is an accompanying family member of a person who is inadmissible under section 34, 35, 35.1 or 37.

Marginal note:Exception — application to Minister

• 42.1 (1) The Minister may, on application by a foreign national, declare that the matters referred to in section 34, paragraph 35(1)(b) and subsection 37(1) do not constitute inadmissibility in respect of the foreign national if they satisfy the Minister that it is not contrary to the national interest.

• Marginal note:Exception — Minister’s own initiative

  (2) The Minister may, on the Minister’s own initiative, declare that the matters referred to in section 34, paragraph 35(1)(b) and subsection 37(1) do not constitute inadmissibility in respect of a foreign national if the Minister is satisfied that it is not contrary to the national interest.

• Marginal note:Considerations

  (3) In determining whether to make a declaration, the Minister may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.

Marginal note:Regulations

43 The regulations may provide for any matter relating to the application of this Division, may define, for the purposes of this Act, any of the terms used in this Division, and may include provisions respecting the circumstances in which a class of permanent residents or foreign nationals is exempted from any of the provisions of this Division.

DIVISION 5Loss of Status and Removal

Report on Inadmissibility

Marginal note:Preparation of report

• 44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.

• Marginal note:Referral or removal order

  (2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.

• Marginal note:Conditions

  (3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.

• Marginal note:Conditions — inadmissibility on grounds of security

  (4) If a report on inadmissibility on grounds of security is referred to the Immigration Division and the permanent resident or the foreign national who is the subject of the report is not detained, an officer shall also impose the prescribed conditions on the person.

• Marginal note:Duration of conditions

  (5) The prescribed conditions imposed under subsection (4) cease to apply only when

  • (a) the person is detained;

  • (b) the report on inadmissibility on grounds of security is withdrawn;

  • (c) a final determination is made not to make a removal order against the person for inadmissibility on grounds of security;

  • (d) the Minister makes a declaration under subsection 42.1(1) or (2) in relation to the person; or

  • (e) a removal order is enforced against the person in accordance with the regulations.

Admissibility Hearing by the Immigration Division

Marginal note:Decision

45 The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:

• (a) recognize the right to enter Canada of a Canadian citizen within the meaning of the Citizenship Act, a person registered as an Indian under the Indian Act or a permanent resident;

• (b) grant permanent resident status or temporary resident status to a foreign national if it is satisfied that the foreign national meets the requirements of this Act;

• (c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or

• (d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.

Loss of Status

Marginal note:Permanent resident

• 46 (1) A person loses permanent resident status

  • (a) when they become a Canadian citizen;

  • (b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28;

  • (c) when a removal order made against them comes into force;

  • (c.1) on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d);

  • (d) on a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination to vacate a decision to allow their application for protection; or

  • (e) on approval by an officer of their application to renounce their permanent resident status.

• Marginal note:Effect of renunciation

  (1.1) A person who loses their permanent resident status under paragraph (1)(e) becomes a temporary resident for a period of six months unless they make their application to renounce their permanent resident status at a port of entry or are not physically present in Canada on the day on which their application is approved.

• Marginal note:Effect of ceasing to be citizen

  (2) A person becomes a permanent resident if he or she ceases to be a citizen under

  • (a) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, other than in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force;

  • (b) subsection 10(1) of the Citizenship Act, other than in the circumstances set out in section 10.2 of that Act; or

  • (c) subsection 10.1(3) of the Citizenship Act, other than in the circumstances set out in section 10.2 of that Act.

Marginal note:Temporary resident

47 A foreign national loses temporary resident status

• (a) at the end of the period for which they are authorized to remain in Canada;

• (b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or

• (c) on cancellation of their temporary resident permit.

Enforcement of Removal Orders

Marginal note:Enforceable removal order

• 48 (1) A removal order is enforceable if it has come into force and is not stayed.

• Marginal note:Effect

  (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible.

Marginal note:In force

• 49 (1) A removal order comes into force on the latest of the following dates:

  • (a) the day the removal order is made, if there is no right to appeal;

  • (b) the day the appeal period expires, if there is a right to appeal and no appeal is made; and

  • (c) the day of the final determination of the appeal, if an appeal is made.

• Marginal note:In force — claimants

  (2) Despite subsection (1), a removal order made with respect to a refugee protection claimant is conditional and comes into force on the latest of the following dates:

  • (a) the day the claim is determined to be ineligible only under paragraph 101(1)(e);

  • (b) in a case other than that set out in paragraph (a), seven days after the claim is determined to be ineligible;

  • (c) if the claim is rejected by the Refugee Protection Division, on the expiry of the time limit referred to in subsection 110(2.1) or, if an appeal is made, 15 days after notification by the Refugee Appeal Division that the claim is rejected;

  • (d) 15 days after notification that the claim is declared withdrawn or abandoned; and

  • (e) 15 days after proceedings are terminated as a result of notice under paragraph 104(1)(c) or (d).

Marginal note:Stay

50 A removal order is stayed

• (a) if a decision that was made in a judicial proceeding — at which the Minister shall be given the opportunity to make submissions — would be directly contravened by the enforcement of the removal order;

• (b) in the case of a foreign national sentenced to a term of imprisonment in Canada, until the sentence is completed;

• (c) for the duration of a stay imposed by the Immigration Appeal Division or any other court of competent jurisdiction;

• (d) for the duration of a stay under paragraph 114(1)(b); and

• (e) for the duration of a stay imposed by the Minister.

Marginal note:Void — permanent residence

51 A removal order that has not been enforced becomes void if the foreign national becomes a permanent resident.

Marginal note:No return without prescribed authorization

• 52 (1) If a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances.

• Marginal note:Return to Canada

  (2) If a removal order for which there is no right of appeal has been enforced and is subsequently set aside in a judicial review, the foreign national is entitled to return to Canada at the expense of the Minister.

Regulations

Marginal note:Regulations

53 The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting

• (a) conditions that may or must be imposed, varied, or cancelled, individually or by class, on permanent residents and foreign nationals;

• (a.1) the form and manner in which an application to renounce permanent resident status must be made and the conditions that must be met before such an application may be approved;

• (b) the circumstances in which a removal order shall be made or confirmed against a permanent resident or a foreign national;

• (c) the circumstances in which status may be restored;

• (d) the circumstances in which a removal order may be stayed, including a stay imposed by the Minister and a stay that is not expressly provided for by this Act;

• (e) the effect and enforcement of removal orders, including the consideration of factors in the determination of when enforcement is possible;

• (f) the effect of a record suspension under the Criminal Records Act on the status of permanent residents and foreign nationals and removal orders made against them; and

• (g) the financial obligations that may be imposed with respect to a removal order.

DIVISION 6Detention and Release

Marginal note:Immigration Division

54 The Immigration Division is the competent Division of the Board with respect to the review of reasons for detention under this Division.

Marginal note:Arrest and detention with warrant

• 55 (1) An officer may issue a warrant for the arrest and detention of a permanent resident or a foreign national who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, for an admissibility hearing, for removal from Canada or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2).

• Marginal note:Arrest and detention without warrant

  (2) An officer may, without a warrant, arrest and detain a foreign national, other than a protected person,

  • (a) who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); or

  • (b) if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act.

• Marginal note:Detention on entry

  (3) A permanent resident or a foreign national may, on entry into Canada, be detained if an officer

  • (a) considers it necessary to do so in order for the examination to be completed; or

  • (b) has reasonable grounds to suspect that the permanent resident or the foreign national is inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality, criminality, transborder criminality or organized criminality.

• Marginal note:Mandatory arrest and detention — designated foreign national

  (3.1) If a designation is made under subsection 20.1(1), an officer must

  • (a) detain, on their entry into Canada, a foreign national who, as a result of the designation, is a designated foreign national and who is 16 years of age or older on the day of the arrival that is the subject of the designation; or

  • (b) arrest and detain without a warrant — or issue a warrant for the arrest and detention of — a foreign national who, after their entry into Canada, becomes a designated foreign national as a result of the designation and who was 16 years of age or older on the day of the arrival that is the subject of the designation.

• Marginal note:Notice

  (4) If a permanent resident or a foreign national is taken into detention, an officer shall without delay give notice to the Immigration Division.

Marginal note:Release — officer

• 56 (1) An officer may order the release from detention of a permanent resident or a foreign national before the first detention review by the Immigration Division if the officer is of the opinion that the reasons for the detention no longer exist. The officer may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer considers necessary.

• Marginal note:Period of detention — designated foreign national

  (2) Despite subsection (1), a designated foreign national who is detained under this Division and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question must be detained until

  • (a) a final determination is made to allow their claim for refugee protection or application for protection;

  • (b) they are released as a result of the Immigration Division ordering their release under section 58; or

  • (c) they are released as a result of the Minister ordering their release under section 58.1.

• Marginal note:Conditions — inadmissibility on grounds of security

  (3) If an officer orders the release of a permanent resident or foreign national who is the subject of either a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security, the officer must also impose the prescribed conditions on the person.

• Marginal note:Duration of conditions

  (4) The prescribed conditions imposed under subsection (3) cease to apply only when one of the events described in paragraphs 44(5)(a) to (e) occurs.

Marginal note:Review of detention

• 57 (1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention.

• Marginal note:Further review

  (2) At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention.

• Marginal note:Presence

  (3) In a review under subsection (1) or (2), an officer shall bring the permanent resident or the foreign national before the Immigration Division or to a place specified by it.

Marginal note:Initial review — designated foreign national

• 57.1 (1) Despite subsections 57(1) and (2), in the case of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, the Immigration Division must review the reasons for their continued detention within 14 days after the day on which that person is taken into detention, or without delay afterward.

• Marginal note:Further review — designated foreign national

  (2) Despite subsection 57(2), in the case of the designated foreign national referred to in subsection (1), the Immigration Division must review again the reasons for their continued detention on the expiry of six months following the conclusion of the previous review and may not do so before the expiry of that period.

• Marginal note:Presence

  (3) In a review under subsection (1) or (2), the officer must bring the designated foreign national before the Immigration Division or to a place specified by it.

Marginal note:Release — Immigration Division

• 58 (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that

  • (a) they are a danger to the public;

  • (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);

  • (c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality, criminality, transborder criminality or organized criminality;

  • (d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or

  • (e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established.

• Marginal note:Continued detention — designated foreign national

  (1.1) Despite subsection (1), on the conclusion of a review under subsection 57.1(1), the Immigration Division shall order the continued detention of the designated foreign national if it is satisfied that any of the grounds described in paragraphs (1)(a) to (c) and (e) exist, and it may not consider any other factors.

• Marginal note:Detention — Immigration Division

  (2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.

• Marginal note:Conditions

  (3) If the Immigration Division orders the release of a permanent resident or a foreign national, it may impose any conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions.

• Marginal note:Conditions — designated foreign national

  (4) If the Immigration Division orders the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, it shall also impose any condition that is prescribed.

• Marginal note:Conditions — inadmissibility on grounds of security

  (5) If the Immigration Division orders the release of a permanent resident or foreign national who is the subject of either a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security, it shall also impose the prescribed conditions on the person.

• Marginal note:Duration of conditions

  (6) The prescribed conditions imposed under subsection (5) cease to apply only when one of the events described in paragraphs 44(5)(a) to (e) occurs.

Marginal note:Release — on request

• 58.1 (1) The Minister may, on request of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, order their release from detention if, in the Minister’s opinion, exceptional circumstances exist that warrant the release.

• Marginal note:Release — Minister’s own initiative

  (2) The Minister may, on the Minister’s own initiative, order the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question if, in the Minister’s opinion, the reasons for the detention no longer exist.

• Marginal note:Conditions

  (3) If the Minister orders the release of a designated foreign national, the Minister may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that he or she considers necessary.

• Marginal note:Conditions — inadmissibility on grounds of security

  (4) If the Minister orders the release of a designated foreign national who is the subject of either a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security, the Minister must also impose the prescribed conditions on the person.

• Marginal note:Duration of conditions

  (5) The prescribed conditions imposed under subsection (4) cease to apply only when one of the events described in paragraphs 44(5)(a) to (e) occurs.

Marginal note:Incarcerated foreign nationals

59 If a warrant for arrest and detention under this Act is issued with respect to a permanent resident or a foreign national who is detained under another Act of Parliament in an institution, the person in charge of the institution shall deliver the inmate to an officer at the end of the inmate’s period of detention in the institution.

Marginal note:Minor children

60 For the purposes of this Division, it is affirmed as a principle that a minor child shall be detained only as a measure of last resort, taking into account the other applicable grounds and criteria including the best interests of the child.

Marginal note:Regulations

61 The regulations may provide for the application of this Division, and may include provisions respecting

• (a) grounds for and criteria with respect to the release of persons from detention;

• (a.1) the type of conditions that an officer, the Immigration Division or the Minister may impose with respect to the release of a person from detention;

• (a.2) the type of conditions that the Immigration Division must impose with respect to the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question;

• (a.3) the conditions that an officer, the Immigration Division or the Minister must impose with respect to the release of a permanent resident or foreign national who is the subject of either a report on inadmissibility on grounds of security or a removal order for inadmissibility on grounds of security;

• (b) factors to be considered by an officer or the Immigration Division; and

• (c) special considerations that may apply in relation to the detention of minor children.

DIVISION 7Right of Appeal

Marginal note:Competent jurisdiction

62 The Immigration Appeal Division is the competent Division of the Board with respect to appeals under this Division.

Marginal note:Right to appeal — visa refusal of family class

• 63 (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.

• Marginal note:Right to appeal — visa and removal order

  (2) A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.

• Marginal note:Right to appeal removal order

  (3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.

• Marginal note:Right of appeal — residency obligation

  (4) A permanent resident may appeal to the Immigration Appeal Division against a decision made outside of Canada on the residency obligation under section 28.

• Marginal note:Right of appeal — Minister

  (5) The Minister may appeal to the Immigration Appeal Division against a decision of the Immigration Division in an admissibility hearing.

Marginal note:No appeal for inadmissibility

• 64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality or organized criminality.

• Marginal note:Serious criminality

  (2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).

• Marginal note:Misrepresentation

  (3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor’s spouse, common-law partner or child.

Marginal note:Humanitarian and compassionate considerations

65 In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.

Marginal note:Disposition

66 After considering the appeal of a decision, the Immigration Appeal Division shall

• (a) allow the appeal in accordance with section 67;

• (b) stay the removal order in accordance with section 68; or

• (c) dismiss the appeal in accordance with section 69.

Marginal note:Appeal allowed

• 67 (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,

  • (a) the decision appealed is wrong in law or fact or mixed law and fact;

  • (b) a principle of natural justice has not been observed; or

  • (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.

• Marginal note:Effect

  (2) If the Immigration Appeal Division allows the appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker for reconsideration.

Marginal note:Removal order stayed

• 68 (1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.

• Marginal note:Effect

  (2) Where the Immigration Appeal Division stays the removal order

  • (a) it shall impose any condition that is prescribed and may impose any condition that it considers necessary;

  • (b) all conditions imposed by the Immigration Division are cancelled;

  • (c) it may vary or cancel any non-prescribed condition imposed under paragraph (a); and

  • (d) it may cancel the stay, on application or on its own initiative.

• Marginal note:Reconsideration

  (3) If the Immigration Appeal Division has stayed a removal order, it may at any time, on application or on its own initiative, reconsider the appeal under this Division.

• Marginal note:Termination and cancellation

  (4) If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality, criminality or transborder criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.

Marginal note:Dismissal

• 69 (1) The Immigration Appeal Division shall dismiss an appeal if it does not allow the appeal or stay the removal order, if any.

• Marginal note:Minister’s Appeal

  (2) In the case of an appeal by the Minister respecting a permanent resident or a protected person, other than a person referred to in subsection 64(1), if the Immigration Appeal Division is satisfied that, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case, it may make and may stay the applicable removal order, or dismiss the appeal, despite being satisfied of a matter set out in paragraph 67(1)(a) or (b).

• Marginal note:Removal order

  (3) If the Immigration Appeal Division dismisses an appeal made under subsection 63(4) and the permanent resident is in Canada, it shall make a removal order.

Marginal note:Decision binding

• 70 (1) An officer, in examining a permanent resident or a foreign national, is bound by the decision of the Immigration Appeal Division to allow an appeal in respect of the permanent resident or foreign national.

• Marginal note:Examination suspended

  (2) If the Minister makes an application for leave to commence an application for judicial review of a decision of the Immigration Appeal Division with respect to a permanent resident or a foreign national, an examination of the permanent resident or the foreign national under this Act is suspended until the final determination of the application.

Marginal note:Reopening appeal

71 The Immigration Appeal Division, on application by a foreign national who has not left Canada under a removal order, may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice.

DIVISION 8Judicial Review

Marginal note:Application for judicial review

• 72 (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is, subject to section 86.1, commenced by making an application for leave to the Court.

• Marginal note:Application

  (2) The following provisions govern an application under subsection (1):

  • (a) the application may not be made until any right of appeal that may be provided by this Act is exhausted;

  • (b) subject to paragraph 169(f), notice of the application shall be served on the other party and the application shall be filed in the Registry of the Federal Court (“the Court”) within 15 days, in the case of a matter arising in Canada, or within 60 days, in the case of a matter arising outside Canada, after the day on which the applicant is notified of or otherwise becomes aware of the matter;

  • (c) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice;

  • (d) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance; and

  • (e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.

Marginal note:Right of Minister

73 The Minister may make an application for leave to commence an application for judicial review with respect to any decision of the Refugee Appeal Division, whether or not the Minister took part in the proceedings before the Refugee Protection Division or Refugee Appeal Division.

Marginal note:Judicial review

74 Judicial review is subject to the following provisions:

• (a) the judge who grants leave shall fix the day and place for the hearing of the application;

• (b) the hearing shall be no sooner than 30 days and no later than 90 days after leave was granted, unless the parties agree to an earlier day;

• (c) the judge shall dispose of the application without delay and in a summary way; and

• (d) subject to section 87.01, an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.

Marginal note:Rules

• 75 (1) Subject to the approval of the Governor in Council, the rules committee established under section 45.1 of the Federal Courts Act may make rules governing the practice and procedure in relation to applications for leave to commence an application for judicial review, for judicial review and for appeals. The rules are binding despite any rule or practice that would otherwise apply.

• Marginal note:Inconsistencies

  (2) In the event of an inconsistency between this Division and any provision of the Federal Courts Act, this Division prevails to the extent of the inconsistency.

DIVISION 9Certificates and Protection of Information

Interpretation

Marginal note:Definitions

76 The following definitions apply in this Division.

information

information means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, the government of a foreign state, an international organization of states or an institution of such a government or international organization. (renseignements)

judge

judge means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice. (juge)

Certificate

Marginal note:Referral of certificate

• 77 (1) The Minister and the Minister of Citizenship and Immigration shall sign a certificate stating that a permanent resident or foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, and shall refer the certificate to the Federal Court.

• Marginal note:Filing of evidence and summary

  (2) When the certificate is referred, the Minister shall file with the Court the information and other evidence that is relevant to the ground of inadmissibility stated in the certificate and on which the certificate is based, as well as a summary of information and other evidence that enables the person named in the certificate to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion, would be injurious to international relations, national defence or national security or endanger the safety of any person if disclosed.

• Marginal note:Effect of referral

  (3) Once the certificate is referred, no proceeding under this Act respecting the person who is named in the certificate — other than proceedings relating to sections 79.1, 82 to 82.31, 112 and 115 — may be commenced or continued until the judge determines whether the certificate is reasonable.

Marginal note:Conditions — inadmissibility on grounds of security

• 77.1 (1) If a certificate stating that a permanent resident or foreign national is inadmissible on grounds of security is referred to the Federal Court and no warrant for the person’s arrest and detention is issued under section 81, the Minister of Public Safety and Emergency Preparedness shall impose the prescribed conditions on the person who is named in the certificate.

• Marginal note:Duration of conditions

  (2) The prescribed conditions imposed under subsection (1) cease to apply only when

  • (a) the person is detained;

  • (b) the certificate stating that the person is inadmissible on grounds of security is withdrawn;

  • (c) a final determination is made that the certificate is not reasonable;

  • (d) the Minister makes a declaration under subsection 42.1(1) or (2) in relation to the person; or

  • (e) a removal order is enforced against the person in accordance with the regulations.

Marginal note:Determination

78 The judge shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that it is not.

Marginal note:Appeal

79 An appeal from the determination may be made to the Federal Court of Appeal only if the judge certifies that a serious question of general importance is involved and states the question. However, no appeal may be made from an interlocutory decision in the proceeding.

Marginal note:Appeal by Minister

• 79.1 (1) Despite section 79, the Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, any decision made in the proceeding requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person.

• Marginal note:Effects of appeal

  (2) The appeal suspends the execution of the decision, as well as the proceeding under section 78, until the appeal has been finally determined.

Marginal note:Effect of certificate

80 A certificate that is determined to be reasonable is conclusive proof that the person named in it is inadmissible and is a removal order that is in force without it being necessary to hold or continue an examination or admissibility hearing.

Detention and Release

Marginal note:Ministers’ warrant

81 The Minister and the Minister of Citizenship and Immigration may issue a warrant for the arrest and detention of a person who is named in a certificate if they have reasonable grounds to believe that the person 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:Initial review of detention

• 82 (1) A judge shall commence a review of the reasons for the person’s continued detention within 48 hours after the detention begins.

• Marginal note:Further reviews of detention — before determining reasonableness

  (2) Until it is determined whether a certificate is reasonable, a judge shall commence another review of the reasons for the person’s continued detention at least once in the six-month period following the conclusion of each preceding review.

• Marginal note:Further reviews of detention — after determining reasonableness

  (3) A person who continues to be detained after a certificate is determined to be reasonable may apply to the Federal Court for another review of the reasons for their continued detention if a period of six months has expired since the conclusion of the preceding review.

• Marginal note:Reviews of conditions

  (4) A person who is released from detention under conditions may apply to the Federal Court for another review of the reasons for continuing the conditions if a period of six months has expired since the conclusion of the preceding review.

• Marginal note:Order

  (5) On review, the judge

  • (a) shall order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person or that they would be unlikely to appear at a proceeding or for removal if they were released under conditions; or

  • (b) in any other case, shall order or confirm the person’s release from detention and set any conditions that the judge considers appropriate.

• Marginal note:Conditions — inadmissibility on grounds of security

  (6) If the judge orders the release, under paragraph (5)(b), of a person who is named in a certificate stating that they are inadmissible on grounds of security, the judge shall also impose the prescribed conditions on the person.

• Marginal note:No review of conditions

  (7) The prescribed conditions imposed under subsection (6) are not subject to review under subsection (4).

• Marginal note:Variation of conditions

  (8) If a person is subject to the prescribed conditions imposed under subsection (6), any variation of conditions under subsection 82.1(1) or paragraph 82.2(3)(c) is not to result in the person being subject to conditions that do not include those prescribed conditions.

• Marginal note:Duration of conditions

  (9) The prescribed conditions imposed under subsection (6) cease to apply only when one of the events described in paragraphs 77.1(2)(a) to (e) occurs.

Marginal note:Variation of orders

• 82.1 (1) A judge may vary an order made under subsection 82(5) on application of the Minister or of the person who is subject to the order if the judge is satisfied that the variation is desirable because of a material change in the circumstances that led to the order.

• Marginal note:Calculation of period for next review

  (2) For the purpose of calculating the six-month period referred to in subsection 82(2), (3) or (4), the conclusion of the preceding review is deemed to have taken place on the day on which the decision under subsection (1) is made.

Marginal note:Arrest and detention — breach of conditions

• 82.2 (1) A peace officer may arrest and detain a person released under section 82 or 82.1 if the officer has reasonable grounds to believe that the person has contravened or is about to contravene any condition applicable to their release.

• Marginal note:Appearance before judge

  (2) The peace officer shall bring the person before a judge within 48 hours after the detention begins.

• Marginal note:Order

  (3) If the judge finds that the person has contravened or was about to contravene any condition applicable to their release, the judge shall

  • (a) order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person or that they would be unlikely to appear at a proceeding or for removal if they were released under conditions;

  • (b) confirm the release order; or

  • (c) vary the conditions applicable to their release.

• Marginal note:Calculation of period for next review

  (4) For the purpose of calculating the six-month period referred to in subsection 82(2), (3) or (4), the conclusion of the preceding review is deemed to have taken place on the day on which the decision under subsection (3) is made.

Marginal note:Appeal

82.3 An appeal from a decision made under any of sections 82 to 82.2 may be made to the Federal Court of Appeal only if the judge certifies that a serious question of general importance is involved and states the question. However, no appeal may be made from an interlocutory decision in the proceeding.

Marginal note:Appeal by Minister

• 82.31 (1) Despite section 82.3, the Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, any decision made in the proceeding requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person.

• Marginal note:Effects of appeal

  (2) The appeal suspends the execution of the decision until the appeal has been finally determined.

Marginal note:Minister’s order to release

82.4 The Minister may, at any time, order that a person who is detained under any of sections 82 to 82.2 be released from detention to permit their departure from Canada.

Protection of Information

Marginal note:Protection of information

• 83 (1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2:

  • (a) the judge shall proceed as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;

  • (b) the judge shall appoint a person from the list referred to in subsection 85(1) to act as a special advocate in the proceeding after hearing representations from the permanent resident or foreign national and the Minister and after giving particular consideration and weight to the preferences of the permanent resident or foreign national;

  • (c) at any time during a proceeding, the judge may, on the judge’s own motion — and shall, on each request of the Minister — hear information or other evidence in the absence of the public and of the permanent resident or foreign national and their counsel if, in the judge’s opinion, its disclosure could be injurious to international relations, national defence or national security or endanger the safety of any person;

  • (c.1) on the request of the Minister, the judge may exempt the Minister from the obligation to provide the special advocate with a copy of information under paragraph 85.4(1)(b) if the judge is satisfied that the information does not enable the permanent resident or foreign national to be reasonably informed of the case made by the Minister;

  • (c.2) for the purpose of deciding whether to grant an exemption under paragraph (c.1), the judge may ask the special advocate to make submissions and may communicate with the special advocate to the extent required to enable the special advocate to make the submissions, if the judge is of the opinion that considerations of fairness and natural justice require it;

  • (d) the judge shall ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person;

  • (e) throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with a summary of information and other evidence that enables them to be reasonably informed of the case made by the Minister in the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to international relations, national defence or national security or endanger the safety of any person if disclosed;

  • (f) the judge shall ensure the confidentiality of all information or other evidence that is withdrawn by the Minister;

  • (g) the judge shall provide the permanent resident or foreign national and the Minister with an opportunity to be heard;

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

  • (i) the judge may base a decision on information or other evidence even if a summary of that information or other evidence is not provided to the permanent resident or foreign national;

  • (j) the judge shall not base a decision on information or other evidence provided by the Minister, and shall return it to the Minister, if the judge determines that it is not relevant or if the Minister withdraws it; and

  • (k) the judge shall not base a decision on information that the Minister is exempted from providing to the special advocate, shall ensure the confidentiality of that information and shall return it to the Minister.

• Marginal note:Clarification

  (1.1) For the purposes of paragraph (1)(h), reliable and appropriate evidence does not include information that is believed on reasonable grounds to have been obtained as a result of the use of torture within the meaning of section 269.1 of the Criminal Code, or cruel, inhuman or degrading treatment or punishment within the meaning of the Convention Against Torture.

• Marginal note:Appointment of special advocate

  (1.2) If the permanent resident or foreign national requests that a particular person be appointed under paragraph (1)(b), the judge shall appoint that person unless the judge is satisfied that

  • (a) the appointment would result in the proceeding being unreasonably delayed;

  • (b) the appointment would place the person in a conflict of interest; or

  • (c) the person has knowledge of information or other evidence whose disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person and, in the circumstances, there is a risk of inadvertent disclosure of that information or other evidence.

• Marginal note:For greater certainty

  (2) For greater certainty, the judge’s power to appoint a person to act as a special advocate in a proceeding includes the power to terminate the appointment and to appoint another person.

Marginal note:Protection of information on appeal

84 Section 83 — other than the obligation to provide a summary — and sections 85.1 to 85.5 apply in respect of an appeal under section 79, 79.1, 82.3 or 82.31 and in respect of any further appeal, with any necessary modifications.

Special Advocate

Marginal note:List of persons who may act as special advocates

• 85 (1) The Minister of Justice shall establish a list of persons who may act as special advocates and shall publish the list in a manner that the Minister of Justice considers appropriate to facilitate public access to it.

• Marginal note:Statutory Instruments Act

  (2) The Statutory Instruments Act does not apply to the list.

• Marginal note:Administrative support and resources

  (3) The Minister of Justice shall ensure that special advocates are provided with adequate administrative support and resources.

Marginal note:Special advocate’s role

• 85.1 (1) A special advocate’s role is to protect the interests of the permanent resident or foreign national in a proceeding under any of sections 78 and 82 to 82.2 when information or other evidence is heard in the absence of the public and of the permanent resident or foreign national and their counsel.

• Marginal note:Responsibilities

  (2) A special advocate may challenge

  • (a) the Minister’s claim that the disclosure of information or other evidence would be injurious to international relations, national defence or national security or endanger the safety of any person; and

  • (b) the relevance, reliability and sufficiency of information or other evidence that is provided by the Minister and is not disclosed to the permanent resident or foreign national and their counsel, and the weight to be given to it.

• Marginal note:For greater certainty

  (3) For greater certainty, the special advocate is not a party to the proceeding and the relationship between the special advocate and the permanent resident or foreign national is not that of solicitor and client.

• Marginal note:Protection of communications with special advocate

  (4) However, a communication between the permanent resident or foreign national or their counsel and the special advocate that would be subject to solicitor-client privilege if the relationship were one of solicitor and client is deemed to be subject to solicitor-client privilege. For greater certainty, in respect of that communication, the special advocate is not a compellable witness in any proceeding.

Marginal note:Powers

85.2 A special advocate may

• (a) make oral and written submissions with respect to the information and other evidence that is provided by the Minister and is not disclosed to the permanent resident or foreign national and their counsel;

• (b) participate in, and cross-examine witnesses who testify during, any part of the proceeding that is held in the absence of the public and of the permanent resident or foreign national and their counsel; and

• (c) exercise, with the judge’s authorization, any other powers that are necessary to protect the interests of the permanent resident or foreign national.

Marginal note:Immunity

85.3 A special advocate is not personally liable for anything they do or omit to do in good faith under this Division.

Marginal note:Obligation to provide information

• 85.4 (1) Subject to paragraph 83(1)(c.1), the Minister shall, within a period set by the judge,

  • (a) provide the special advocate with a copy of the information and other evidence that is relevant to the case made by the Minister in a proceeding under any of sections 78 and 82 to 82.2, on which the certificate or warrant is based and that has been filed with the Federal Court, but that is not disclosed to the permanent resident or foreign national and their counsel; and

  • (b) provide the special advocate with a copy of any other information that is in the Minister’s possession and that is relevant to the case made by the Minister in a proceeding under any of sections 78 and 82 to 82.2, but on which the certificate or warrant is not based and that has not been filed with the Federal Court.

• Marginal note:Restrictions on communications — special advocate

  (2) After that information or other evidence is received by the special advocate, the special advocate may, during the remainder of the proceeding, communicate with another person about the proceeding only with the judge’s authorization and subject to any conditions that the judge considers appropriate.

• Marginal note:Restrictions on communications — other persons

  (3) If the special advocate is authorized to communicate with a person, the judge may prohibit that person from communicating with anyone else about the proceeding during the remainder of the proceeding or may impose conditions with respect to such a communication during that period.

Marginal note:Disclosure and communication prohibited

85.5 With the exception of communications authorized by a judge, no person shall

• (a) disclose information or other evidence that is disclosed to them under section 85.4 and that is treated as confidential by the judge presiding at the proceeding; or

• (b) communicate with another person about the content of any part of a proceeding under any of sections 78 and 82 to 82.2 that is heard in the absence of the public and of the permanent resident or foreign national and their counsel.

Marginal note:Rules

• 85.6 (1) The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court may each establish a committee to make rules governing the practice and procedure in relation to the participation of special advocates in proceedings before the court over which they preside. The rules are binding despite any rule of practice that would otherwise apply.

• Marginal note:Composition of committees

  (2) Any committee established shall be composed of the Chief Justice of the Federal Court of Appeal or the Chief Justice of the Federal Court, as the case may be, the Attorney General of Canada or one or more representatives of the Attorney General of Canada, and one or more members of the bar of any province who have experience in a field of law relevant to those types of proceedings. The Chief Justices may also designate additional members of their respective committees.

• Marginal note:Chief Justices shall preside

  (3) The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court — or a member designated by them — shall preside over their respective committees.

Other Proceedings

Marginal note:Application for non-disclosure

86 The Minister may, during an admissibility hearing, a detention review or an appeal before the Immigration Appeal Division, apply for the non-disclosure of information or other evidence. Sections 83 and 85.1 to 85.5 apply to the proceeding with any necessary modifications, including that a reference to “judge” be read as a reference to the applicable Division of the Board.

Marginal note:Judicial review

• 86.1 (1) The Minister may, at any stage of the proceeding, apply for judicial review of any decision made in a proceeding referred to in section 86 requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person. The application may be made without an application for leave.

• Marginal note:Effects of judicial review

  (2) The making of the application suspends the execution of the decision and, except in the case of a detention review, the proceeding referred to in section 86, until the application has been finally determined.

Marginal note:Application for non-disclosure — judicial review and appeal

87 The Minister may, during a judicial review, apply for the non-disclosure of information or other evidence. Section 83 — other than the obligations to appoint a special advocate and to provide a summary — applies in respect of the proceeding and in respect of any appeal of a decision made in the proceeding, with any necessary modifications.

Marginal note:Appeal by Minister

• 87.01 (1) The Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, to the Federal Court of Appeal any decision made in a judicial review requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person.

• Marginal note:Effects of appeal

  (2) The appeal suspends the execution of the decision, as well as the judicial review, until the appeal has been finally determined.

Marginal note:Special advocate

87.1 If the judge during the judicial review, or a court on appeal from the judge’s decision, is of the opinion that considerations of fairness and natural justice require that a special advocate be appointed to protect the interests of the permanent resident or foreign national, the judge or court shall appoint a special advocate from the list referred to in subsection 85(1). Sections 85.1 to 85.5 apply to the proceeding with any necessary modifications.

Regulations

Marginal note:Regulations

• 87.2 (1) The regulations may provide for any matter relating to the application of this Division and may include provisions respecting

  • (a) the conditions that must be imposed under subsection 77.1(1) or 82(6); and

  • (b) the conditions and qualifications that persons must meet to be included in the list referred to in subsection 85(1) and the additional qualifications that are assets that may be taken into account for that purpose.

• Marginal note:Requirements

  (2) The regulations

  • (a) shall require that, to be included in the list, persons be members in good standing of the bar of a province, not be employed in the federal public administration, and not otherwise be associated with the federal public administration in such a way as to impair their ability to protect the interests of the permanent resident or foreign national; and

  • (b) may include provisions respecting those requirements.

DIVISION 10General Provisions

Instructions on Processing Applications and Requests

Marginal note:Application

• 87.3 (1) This section applies to applications for visas or other documents made under subsections 11(1) and (1.01), other than those made by persons referred to in subsection 99(2), to sponsorship applications made under subsection 13(1), to applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada, to applications for work or study permits and to requests under subsection 25(1) made by foreign nationals outside Canada.

• Marginal note:Clarification

  (1.1) For greater certainty, this section applies to a sponsorship application made under subsection 13(1) to sponsor a person referred to in subsection 99(2).

• Marginal note:Attainment of immigration goals

  (2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada.

• Marginal note:Instructions

  (3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions

  • (a) establishing categories of applications or requests to which the instructions apply;

  • (a.1) establishing conditions, by category or otherwise, that must be met before or during the processing of an application or request;

  • (b) establishing an order, by category or otherwise, for the processing of applications or requests;

  • (c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and

  • (d) providing for the disposition of applications and requests, including those made subsequent to the first application or request.

• Marginal note:Application

  (3.1) An instruction may, if it so provides, apply in respect of pending applications or requests that are made before the day on which the instruction takes effect.

• Marginal note:Clarification

  (3.2) For greater certainty, an instruction given under paragraph (3)(c) may provide that the number of applications or requests, by category or otherwise, to be processed in any year be set at zero.

• Marginal note:Compliance with instructions

  (4) Officers and persons authorized to exercise the powers of the Minister under section 25 shall comply with any instructions before processing an application or request or when processing one. If an application or request is not processed, it may be retained, returned or otherwise disposed of in accordance with the instructions of the Minister.

• Marginal note:Clarification

  (5) The fact that an application or request is retained, returned or otherwise disposed of does not constitute a decision not to issue the visa or other document, or grant the status or exemption, in relation to which the application or request is made.

• Marginal note:Publication

  (6) Instructions shall be published in the Canada Gazette.

• Marginal note:Clarification

  (7) Nothing in this section in any way limits the power of the Minister to otherwise determine the most efficient manner in which to administer this Act.

Applications for Temporary Resident Visas, Work Permits and Study Permits

Marginal note:Order in council

• 87.31 (1) If the Governor in Council is of the opinion that the government of a foreign state or the competent authority of any other territory is unreasonably refusing to issue or unreasonably delaying the issuance of travel documents to citizens or nationals of that country or territory who are in Canada, the Governor in Council may make an order specifying one or more of the following:

  • (a) applications for temporary resident visas, work permits or study permits, or any combination of those types of applications, made by any citizen or national of that foreign state or territory are not to be accepted for processing if they are received during the period or periods set out in the order or, if a period is not set out, during the period that the order is in force;

  • (b) the processing of any of those types of applications, or any combination of them, made by any citizen or national of that foreign state or territory that are pending on the coming into force of the order or, if amended, the amendment, is to be suspended during the period or periods set out in the order or, if a period is not set out, during the period that the order is in force; or

  • (c) the processing of any of those types of applications, or any combination of them, made by any citizen or national of that foreign state or territory that are pending on the coming into force of the order or, if amended, the amendment, is to be terminated.

• Marginal note:Other elements of order

  (2) An order made under subsection (1) may

  • (a) restrict the application of the order to applications, citizens or nationals within a class of applications, citizens or nationals that is specified in the order;

  • (b) provide for the retention, return or other disposition of applications;

  • (c) if the processing of applications is terminated, provide for the repayment of fees paid in respect of those applications; and

  • (d) provide for any other matter arising out of or ancillary to the exercise of the power conferred under that subsection.

• Marginal note:Clarification

  (3) The fact that an application is retained, returned or otherwise disposed of does not constitute a decision not to issue the visa or permit in relation to which the application is made.

Federal Skilled Workers

Marginal note:Application made before February 27, 2008

• 87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.

• Marginal note:Application

  (2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.

• Marginal note:Effect

  (3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa.

• Marginal note:Fees returned

  (4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund.

• Marginal note:No recourse or indemnity

  (5) No person has a right of recourse or indemnity against Her Majesty in connection with an application that is terminated under subsection (1).

Federal Investor and Entrepreneur Classes

Marginal note:Pending applications

• 87.5 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of investors or of entrepreneurs is terminated if, before February 11, 2014, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to the class in question.

• Marginal note:Application

  (2) Subsection (1) does not apply to

  • (a) an application in respect of which a superior court has made a final determination unless the determination is made on or after February 11, 2014; or

  • (b) an application made by an investor or entrepreneur who is selected as such by a province whose government has entered into an agreement referred to in subsection 9(1).

• Marginal note:Effect

  (3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa.

• Marginal note:Fees returned

  (4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund.

• Marginal note:Investment returned

  (5) If an application for a permanent resident visa as a member of the prescribed class of investors is terminated under subsection (1), an amount equal to the investment made by the applicant in respect of their application must be returned, without interest, to the applicant. The amount may be paid out of the Consolidated Revenue Fund.

• Marginal note:Provincial allocation

  (6) If the provincial allocation of an investment made in respect of an application for a permanent resident visa as a member of the prescribed class of investors that is terminated under subsection (1) has been transferred to an approved fund, as defined in subsection 88(1) of the Immigration and Refugee Protection Regulations, the province whose government controls the approved fund must return an amount equal to that provincial allocation to the Minister without delay. The return of the amount extinguishes the debt obligation in respect of that provincial allocation.

• Marginal note:No recourse or indemnity

  (7) No right of recourse or indemnity lies against Her Majesty in right of Canada in connection with an application that is terminated under subsection (1), including in respect of any contract or other arrangement relating to any aspect of the application.

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 (1) 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.

• Marginal note:Service Fees Act

  (1.1) The Service Fees Act does not apply to a fee for the provision of services in relation to a request for an assessment provided by the Department of Employment and Social Development with respect to an application for a work permit.

• Marginal note:Service Fees Act

  (1.2) The Service Fees Act does not apply to a fee for the provision of services in relation to the processing of an application

  • (a) for a temporary resident visa or permanent resident visa;

  • (b) for a work permit or study permit;

  • (c) for an extension of an authorization to remain in Canada as a temporary resident;

  • (d) to remain in Canada as a permanent resident;

  • (e) to sponsor a foreign national as a member of the family class;

  • (f) to make the request referred to in subsection 25(1);

  • (g) for a travel document issued under subsection 31(3); and

  • (h) for a permanent resident card.

• Marginal note:Service Fees Act

  (2) The Service Fees Act does not apply to a fee for the provision of services in relation to an application referred to in subsection 11(1.01).

• Marginal note:Service Fees Act

  (3) The Service Fees Act does not apply to a fee for the provision of services in relation to the collection, use and disclosure of biometric information and for the provision of related services.

• Marginal note:Service Fees Act

  (4) The Service Fees Act does not apply to a fee for the examination of the circumstances of a foreign national under subsection 25.2(1).

Marginal note:Fees for rights and privileges

• 89.1 (1) The regulations may

  • (a) govern fees to be paid for rights and privileges conferred by means of a work permit; and

  • (b) waive the fees referred to in paragraph (a) for certain work permits or certain classes of work permits.

• Marginal note:Service Fees Act

  (2) The Service Fees Act does not apply to fees referred to in paragraph (1)(a).

Marginal note:Service Fees Act

89.11 The Service Fees Act does not apply to fees for the acquisition of permanent resident status.

Marginal note:Fees — compliance regime

• 89.2 (1) The regulations may

  • (a) govern fees to be paid in respect of the compliance regime that applies to employers in relation to their employment of foreign nationals whose authorizations to work in Canada do not require an assessment provided by the Department of Employment and Social Development; and

  • (b) govern cases in which the fees referred to in paragraph (a) are waived.

  • (c) and (d) [Repealed, 2015, c. 36, s. 173]

• Marginal note:Service Fees Act

  (2) The Service Fees Act does not apply to fees referred to in paragraph (1)(a).

Social Insurance Numbers

Marginal note:Minister directs special numbers to be issued

90 The Minister may direct the Canada Employment Insurance Commission to assign to persons, other than Canadian citizens or permanent residents, Social Insurance Numbers identifying those persons as persons who may be required under this Act to obtain authorization to work in Canada.

Representation or Advice

Marginal note:Representation or advice for consideration

• 91 (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

• Marginal note:Persons who may represent or advise

  (2) A person does not contravene subsection (1) if they are

  • (a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;

  • (b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or

  • (c) a member in good standing of the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act.

• Marginal note:Students-at-law

  (3) A student-at-law does not contravene subsection (1) by offering or providing representation or advice to a person if the student-at-law is acting under the supervision of a person mentioned in paragraph (2)(a) who is representing or advising the person — or offering to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

• Marginal note:Agreement or arrangement with Her Majesty

  (4) An entity, including a person acting on its behalf, that offers or provides services to assist persons in connection with the submission of an expression of interest under subsection 10.1(3) or an application under this Act, including for a permanent or temporary resident visa, travel documents or a work or study permit, does not contravene subsection (1) if it is acting in accordance with an agreement or arrangement between that entity and Her Majesty in right of Canada that authorizes it to provide those services.

• (5) [Repealed, 2019, c. 29, s. 296]

• (5.1) [Repealed, 2019, c. 29, s. 296]

• (6) [Repealed, 2019, c. 29, s. 296]

• (7) [Repealed, 2019, c. 29, s. 296]

• Marginal note:Québec Immigration Act

  (7.1) For greater certainty, the Québec Immigration Act, CQLR, c. I-0.2.1, applies to, among other persons, every person who, in Quebec, represents or advises a person for consideration — or offers to do so — in connection with a proceeding or application under this Act and is a member of the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act.

• (8) [Repealed, 2019, c. 29, s. 296]

• Marginal note:Penalties

  (9) Every person who contravenes subsection (1) commits an offence and is liable

  • (a) on conviction on indictment, to a fine of not more than $200,000 or to imprisonment for a term of not more than two years, or to both; or

  • (b) on summary conviction, to a fine of not more than $40,000 or to imprisonment for a term of not more than six months, or to both.

• Marginal note:Meaning of proceeding

  (10) For greater certainty, in this section, proceeding does not include a proceeding before a superior court.

Marginal note:Regulations

• 91.1 (1) The regulations may

  • (a) establish a system of administrative penalties and consequences — including of administrative monetary penalties — applicable to the violations designated in regulations made under paragraph (b) and set the amounts of those administrative monetary penalties;

  • (b) designate as a violation the contravention — including a contravention committed outside Canada — of any specified provision of this Act or of the regulations by any person who, directly or indirectly, represents or advises a person for consideration — or offers to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act;

  • (c) prohibit acts in relation to the activity of representing or advising — or offering to do so — described in paragraph (b); and

  • (d) provide for the power to inspect — including the power to require documents to be provided by individuals and entities for inspection — for the purpose of verifying compliance with the provisions specified in regulations made under paragraph (b).

• Marginal note:Right to request review

  (2) Any regulation made under paragraph (1)(a) must provide that a person who is the subject of a notice of violation has the right to request, from a person appointed under subsection (3), a review of the notice or of the penalty imposed.

• Marginal note:Appointment — order

  (3) The Governor in Council may, by order, appoint one or more Canadian citizens or permanent residents to conduct reviews in respect of notices of violation issued, or penalties imposed, under a regulation made under paragraph (1)(a) and to perform any other function conferred on them by a regulation made under that paragraph.

• Marginal note:Tenure

  (4) A person appointed by order under subsection (3) holds office during good behaviour for a term that the Governor in Council may specify, by order, but may be removed for cause by the Governor in Council at any time.

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:Incorporated material — instructions

  (1.1) An instruction given by the Minister or the Minister of Employment and Social Development under this Act may incorporate by reference any material, regardless of its source.

• 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.

Marginal note:Statutory Instruments Act

93 Instructions given by the Minister or the Minister of Employment and Social Development under this Act and guidelines issued by the Chairperson under paragraph 159(1)(h) are not statutory instruments for the purposes of the Statutory Instruments Act.

Report to Parliament

Marginal note:Annual report to Parliament

• 94 (1) The Minister must, on or before November 1 of each year or, if a House of Parliament is not then sitting, within the next 30 days on which that House is sitting after that date, table in each House of Parliament a report on the operation of this Act in the preceding calendar year.

• Marginal note:Contents of report

  (2) The report shall include a description of

  • (a) the instructions given under section 87.3 and other activities and initiatives taken concerning the selection of foreign nationals, including measures taken in cooperation with the provinces;

  • (a.1) any instructions given under paragraph 10.3(1)(h.2) that establish a category of eligible foreign nationals, the economic goal sought to be supported in establishing the category and the number of foreign nationals invited to make an application for permanent residence in respect of the category;

  • (b) in respect of Canada, the number of foreign nationals who became permanent residents, and the number projected to become permanent residents in the following year;

  • (b.1) in respect of Canada, the linguistic profile of foreign nationals who became permanent residents;

  • (c) in respect of each province that has entered into a federal-provincial agreement described in subsection 9(1), the number, for each class listed in the agreement, of persons that became permanent residents and that the province projects will become permanent residents there in the following year;

  • (d) the number of temporary resident permits issued under section 24, categorized according to grounds of inadmissibility, if any;

  • (e) the number of persons granted permanent resident status under each of subsections 25(1), 25.1(1) and 25.2(1);

  • (e.1) any instructions given under subsection 30(1.2), (1.41) or (1.43) during the year in question and the date of their publication; and

  • (f) a gender-based analysis of the impact of this Act.

PART 2Refugee Protection

DIVISION 1Refugee Protection, Convention Refugees and Persons in Need of Protection

Marginal note:Conferral of refugee protection

• 95 (1) Refugee protection is conferred on a person when

  • (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons;

  • (b) the Board determines the person to be a Convention refugee or a person in need of protection; or

  • (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection.

• Marginal note:Protected person

  (2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4).

Marginal note:Convention refugee

96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

• (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or

• (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.

Marginal note:Person in need of protection

• 97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally

  • (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or

  • (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if

    • (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,

    • (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,

    • (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and

    • (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

• Marginal note:Person in need of protection

  (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.

Marginal note:Exclusion — Refugee Convention

98 A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.

Marginal note:Requirement to report

• 98.1 (1) A designated foreign national on whom refugee protection is conferred under paragraph 95(1)(b) or (c) must report to an officer in accordance with the regulations.

• Marginal note:Obligation when reporting

  (2) A designated foreign national who is required to report to an officer must answer truthfully all questions put to him or her and must provide any information and documents that the officer requests.

Marginal note:Regulations

98.2 The regulations may provide for any matter relating to the application of section 98.1 and may include provisions respecting the requirement to report to an officer.

DIVISION 2Convention Refugees and Persons in Need of Protection

Claim for Refugee Protection

Marginal note:Claim

• 99 (1) A claim for refugee protection may be made in or outside Canada.

• Marginal note:Claim outside Canada

  (2) A claim for refugee protection made by a person outside Canada must be made by making an application for a visa as a Convention refugee or a person in similar circumstances, and is governed by Part 1.

• Marginal note:Claim inside Canada

  (3) A claim for refugee protection made by a person inside Canada must be made in person to an officer, must not be made by a person who is subject to a removal order, and is governed by this Part.

• Marginal note:Claim made inside Canada — not at port of entry

  (3.1) A person who makes a claim for refugee protection inside Canada other than at a port of entry must provide the officer, within the time limits provided for in the regulations, with the documents and information — including in respect of the basis for the claim — required by the rules of the Board, in accordance with those rules.

• Marginal note:Permanent resident

  (4) An application to become a permanent resident made by a protected person is governed by Part 1.

Examination of Eligibility to Refer Claim

Marginal note:Referral to Refugee Protection Division

• 100 (1) An officer shall, after receipt of a claim referred to in subsection 99(3), determine whether the claim is eligible to be referred to the Refugee Protection Division and, if it is eligible, shall refer the claim in accordance with the rules of the Board.

• 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.

• Marginal note:Decision

  (2) The officer shall suspend consideration of the eligibility of the person’s claim if

  • (a) a report has been referred for a determination, at an admissibility hearing, of whether the person is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality; or

  • (b) the officer considers it necessary to wait for a decision of a court with respect to a claimant who is charged with an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years.

• Marginal note:Consideration of claim

  (3) The Refugee Protection Division may not consider a claim until it is referred by the officer.

• Marginal note:Documents and information to be provided

  (4) A person who makes a claim for refugee protection inside Canada at a port of entry and whose claim is referred to the Refugee Protection Division must provide the Division, within the time limits provided for in the regulations, with the documents and information — including in respect of the basis for the claim — required by the rules of the Board, in accordance with those rules.

• Marginal note:Date of hearing

  (4.1) The referring officer must, in accordance with the regulations, the rules of the Board 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.

• Marginal note:Quarantine Act

  (5) If a traveller is detained or isolated under the Quarantine Act, the period referred to in subsections (1) and (3) does not begin to run until the day on which the detention or isolation ends.

Marginal note:Ineligibility

• 101 (1) A claim is ineligible to be referred to the Refugee Protection Division if

  • (a) refugee protection has been conferred on the claimant under this Act;

  • (b) a claim for refugee protection by the claimant has been rejected by the Board;

  • (c) a prior claim by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned;

  • (c.1) the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws;

  • (d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country;

  • (e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or

  • (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

• Marginal note:Serious criminality

  (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless

  • (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

  • (b) in the case of inadmissibility by reason of a conviction outside Canada, the conviction is 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.

Marginal note:Regulations

• 102 (1) The regulations may govern matters relating to the application of sections 100 and 101, may, for the purposes of this Act, define the terms used in those sections and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions

  • (a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture;

  • (b) making a list of those countries and amending it as necessary; and

  • (c) respecting the circumstances and criteria for the application of paragraph 101(1)(e).

• Marginal note:Factors

  (2) The following factors are to be considered in designating a country under paragraph (1)(a):

  • (a) whether the country is a party to the Refugee Convention and to the Convention Against Torture;

  • (b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture;

  • (c) its human rights record; and

  • (d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection.

• Marginal note:Review

  (3) The Governor in Council must ensure the continuing review of factors set out in subsection (2) with respect to each designated country.

Suspension or Termination of Consideration of Claim

Marginal note:Suspension

• 103 (1) Proceedings of the Refugee Protection Division in respect of a claim for refugee protection are suspended on notice by an officer that

  • (a) the matter has been referred to the Immigration Division to determine whether the claimant is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality; or

  • (b) an officer considers it necessary to wait for a decision of a court with respect to a claimant who is charged with an offence under an Act of Parliament that may be punished by a maximum term of imprisonment of at least 10 years.

• Marginal note:Continuation

  (2) On notice by an officer that the suspended claim was determined to be eligible, proceedings of the Refugee Protection Division must continue.

Marginal note:Notice of ineligible claim

• 104 (1) An officer may, with respect to a claim that is before the Refugee Protection Division or, in the case of paragraph (a.1) or (d), that is before or has been determined by the Refugee Protection Division or the Refugee Appeal Division, give notice that an officer has determined that

  • (a) the claim is ineligible under paragraphs 101(1)(a) to (e), other than paragraph 101(1)(c.1);

  • (a.1) the claim is ineligible under paragraph 101(1)(c.1);

  • (b) the claim is ineligible under paragraph 101(1)(f);

  • (c) the claim was referred as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter and that the claim was not otherwise eligible to be referred to that Division; or

  • (d) the claim is not the first claim that was received by an officer in respect of the claimant.

• Marginal note:Termination and nullification

  (2) A notice given under the following provisions has the following effects:

  • (a) if given under paragraph (1)(a), (b) or (c), it terminates pending proceedings in the Refugee Protection Division respecting the claim;

  • (a.1) if given under paragraph (1)(a.1), it terminates pending proceedings in the Refugee Protection Division or, in the case of an appeal made by the claimant, the Refugee Appeal Division, respecting the claim; and

  • (b) if given under paragraph (1)(d), it terminates proceedings in and nullifies any decision of the Refugee Protection Division or the Refugee Appeal Division respecting a claim other than the first claim.

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.

Marginal note:Manifestly unfounded

107.1 If the Refugee Protection Division rejects a claim for refugee protection, it must 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.

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.

Designated Countries of Origin

Marginal note:Designation of countries of origin

• 109.1 (1) The Minister may, by order, designate a country, for the purposes of subsection 110(2) and section 111.1.

• Marginal note:Limitation

  (2) The Minister may only make a designation

  • (a) in the case where the number of claims for refugee protection made in Canada by nationals of the country in question in respect of which the Refugee Protection Division has made a final determination is equal to or greater than the number provided for by order of the Minister,

    • (i) if the rate, expressed as a percentage, that is obtained by dividing the total number of claims made by nationals of the country in question that, in a final determination by the Division during the period provided for in the order, are rejected or determined to be withdrawn or abandoned by the total number of claims made by nationals of the country in question in respect of which the Division has, during the same period, made a final determination is equal to or greater than the percentage provided for in the order, or

    • (ii) if the rate, expressed as a percentage, that is obtained by dividing the total number of claims made by nationals of the country in question that, in a final determination by the Division, during the period provided for in the order, are determined to be withdrawn or abandoned by the total number of claims made by nationals of the country in question in respect of which the Division has, during the same period, made a final determination is equal to or greater than the percentage provided for in the order; or

  • (b) in the case where the number of claims for refugee protection made in Canada by nationals of the country in question in respect of which the Refugee Protection Division has made a final determination is less than the number provided for by order of the Minister, if the Minister is of the opinion that in the country in question

    • (i) there is an independent judicial system,

    • (ii) basic democratic rights and freedoms are recognized and mechanisms for redress are available if those rights or freedoms are infringed, and

    • (iii) civil society organizations exist.

• Marginal note:Order of Minister

  (3) The Minister may, by order, provide for the number, period or percentages referred to in subsection (2).

• Marginal note:Statutory Instruments Act

  (4) An order made under subsection (1) or (3) is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.

Appeal to Refugee Appeal Division

Marginal note:Appeal

• 110 (1) Subject to subsections (1.1) and (2), 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.

• Marginal note:Notice of appeal

  (1.1) The Minister may satisfy any requirement respecting the manner in which an appeal is filed and perfected by submitting a notice of appeal and any supporting documents.

• Marginal note:Restriction on appeals

  (2) No appeal may be made in respect of any of the following:

  • (a) a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection of a designated foreign national;

  • (b) a determination that a refugee protection claim has been withdrawn or abandoned;

  • (c) a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded;

  • (d) subject to the regulations, a decision of the Refugee Protection Division in respect of a claim for refugee protection if

    • (i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and

    • (ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(e) to be referred to the Refugee Protection Division;

  • (d.1) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1);

  • (e) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that refugee protection has ceased;

  • (f) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection.

• 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, in the case of a matter that is conducted before a panel of three members, 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.

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.

• (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.

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 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.

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;

  • (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

    • (i) the day on which their claim for refugee protection was 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, in the case where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review, or

    • (ii) in any other case, the latest of

      • (A) the day on which their claim for refugee protection was 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, if there was more than one such rejection or determination, the day on which the last one occurred,

      • (B) the day on which their claim for refugee protection was 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 Appeal Division or, if there was more than one such rejection or determination, the day on which the last one occurred, and

      • (C) the day on which the Federal Court refused their application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their claim for refugee protection, unless that claim 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

  • (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

    • (i) the day on which their application for protection was rejected or determined to be withdrawn or abandoned by the Minister, in the case where no application was made to the Federal Court for leave to commence an application for judicial review, or

    • (ii) in any other case, the later of

      • (A) the day on which their application for protection was rejected or determined to be withdrawn or abandoned by the Minister or, if there was more than one such rejection or determination, the day on which the last one occurred, and

      • (B) the day on which the Federal Court refused their application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their application for protection.

  • (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).

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) — 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 of an offence under an Act of Parliament 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.

Marginal note:Mandatory hearing

113.01 Unless the application is allowed without a hearing, a hearing must, despite paragraph 113(b), be held in the case of an applicant for protection whose claim for refugee protection has been determined to be ineligible solely under paragraph 101(1)(c.1).

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 organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of 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:Minimum penalty — fewer than 50 persons

  (3.1) A person who is convicted on indictment of an offence under subsection (2) or (3) with respect to fewer than 50 persons is also liable to a minimum punishment of imprisonment for a term of

  • (a) three years, if either

    • (i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, or

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

  • (b) five years, if both

    • (i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, and

    • (ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

• Marginal note:Minimum penalty — 50 persons or more

  (3.2) A person who is convicted of an offence under subsection (3) with respect to a group of 50 persons or more is also liable to a minimum punishment of imprisonment for a term of

  • (a) five years, if either

    • (i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, or

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

  • (b) 10 years, if both

    • (i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, and

    • (ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

• 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 The court, in determining the penalty to be imposed under section 120, shall take into account whether

• (a) bodily harm or death occurred, or the life or safety of any person was endangered, as a result of 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

• 121.1 (1) For the purposes of subparagraphs 117(3.1)(a)(ii) and (b)(ii) and (3.2)(a)(ii) and (b)(ii) and paragraph 121(b), criminal organization means a criminal organization as defined in subsection 467.1(1) of the Criminal Code.

• Marginal note:Definition of terrorist group

  (2) For the purposes of subparagraphs 117(3.1)(a)(ii) and (b)(ii) and (3.2)(a)(ii) and (b)(ii), terrorist group means a terrorist group as defined in subsection 83.01(1) of the Criminal Code.

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.

Marginal note:Penalty

• 123 (1) Every person who contravenes

  • (a) paragraph 122(1)(a) is guilty of an offence and liable on conviction on indictment to a term of imprisonment of up to five years; and

  • (b) paragraph 122(1)(b) or (c) is guilty of an offence and liable on conviction on indictment to a term of imprisonment of up to 14 years.

• Marginal note:Aggravating factors

  (2) The court, in determining the penalty to be imposed, shall take into account whether

  • (a) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization as defined in subsection 121.1(1); and

  • (b) the commission of the offence was for profit, whether or not any profit was realized.

General Offences

Marginal note:Contravention of Act

• 124 (1) Every person commits an offence who

  • (a) contravenes a provision of this Act for which a penalty is not specifically provided or fails to comply with a condition or obligation imposed under this Act;

  • (b) escapes or attempts to escape from lawful custody or detention under this Act; or

  • (c) employs a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed.

• Marginal note:Deemed knowledge

  (2) For the purposes of paragraph (1)(c), a person who fails to exercise due diligence to determine whether employment is authorized under this Act is deemed to know that it is not authorized.

• Marginal note:Due diligence defence

  (3) A person referred to in subsection 148(1) shall not be found guilty of an offence under paragraph (1)(a) if it is established that they exercised all due diligence to prevent the commission of the offence.

Marginal note:Penalties

125 A person who commits an offence under subsection 124(1) is liable

• (a) on conviction on indictment, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both; or

• (b) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.

Marginal note:Counselling misrepresentation

126 Every person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence.

Marginal note:Misrepresentation

127 No person shall knowingly

• (a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

• (b) communicate, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada; or

• (c) refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or at a proceeding held under this Act.

Marginal note:Penalties

128 A person who contravenes a provision of section 126 or 127 is guilty of an offence and liable

• (a) on conviction on indictment, to a fine of not more than $100,000 or to imprisonment for a term of not more than five years, or to both; or

• (b) on summary conviction, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both.

Marginal note:Offences relating to officers

• 129 (1) Every person is guilty of an offence who

  • (a) being an officer or an employee of the Government of Canada, knowingly makes or issues any false document or statement, or accepts or agrees to accept a bribe or other benefit, in respect of any matter under this Act or knowingly fails to perform their duties under this Act;

  • (b) gives or offers to give a bribe or consideration to, or makes an agreement or arrangement with, an officer to induce the officer not to perform their duties under this Act;

  • (c) falsely personates an officer or by any act or omission leads any person to believe that the person is an officer; or

  • (d) obstructs or impedes an officer in the performance of the officer’s duties under this Act.

• Marginal note:Punishment

  (2) Every person who is guilty of an offence under subsection (1) is liable

  • (a) on conviction on indictment, to a fine of not more than $50,000 or to imprisonment for a term of not more than five years, or to both; or

  • (b) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.

130 [Repealed, 2001, c. 32, s. 81]

Marginal note:Counselling offence

131 Every person who knowingly induces, aids or abets or attempts to induce, aid or abet any person to contravene section 117, 118, 119, 122, 124 or 129, or who counsels a person to do so, commits an offence and is liable to the same penalty as that person.

132 [Repealed, 2001, c. 32, s. 81]

Prosecution of Offences

Marginal note:Deferral

133 A person who has claimed refugee protection, and who came to Canada directly or indirectly from the country in respect of which the claim is made, may not be charged with an offence under section 122, paragraph 124(1)(a) or section 127 of this Act or under section 57, paragraph 340(c) or section 354, 366, 368, 374 or 403 of the Criminal Code, in relation to the coming into Canada of the person, pending disposition of their claim for refugee protection or if refugee protection is conferred.

Marginal note:Limitation period for summary conviction offences

• 133.1 (1) A proceeding by way of summary conviction for an offence under section 117, 126 or 127, or section 131 as it relates to section 117, may be instituted at any time within, but not later than, 10 years after the day on which the subject-matter of the proceeding arose, and a proceeding by way of summary conviction for any other offence under this Act may be instituted at any time within, but not later than, five years after the day on which the subject-matter of the proceeding arose.

• Marginal note:Application

  (2) Subsection (1) does not apply if the subject-matter of the proceeding arose before the day on which this section comes into force.

Marginal note:Defence — incorporation by reference

134 No person may be found guilty of an offence or subjected to a penalty for the contravention of a provision of a regulation that incorporates material by reference, unless it is proved that, at the time of the alleged contravention,

• (a) the material was reasonably accessible to the person;

• (b) reasonable steps had been taken to ensure that the material was accessible to persons likely to be affected by the regulation; or

• (c) the material had been published in the Canada Gazette.

Marginal note:Offences outside Canada

135 An act or omission that would by reason of this Act be punishable as an offence if committed in Canada is, if committed outside Canada, an offence under this Act and may be tried and punished in Canada.

Marginal note:Venue

• 136 (1) A proceeding in respect of an offence under this Act may be instituted, tried and determined at the place in Canada where the offence was committed or at the place in Canada where the person charged with the offence is or has an office or place of business at the time of the institution of those proceedings.

• Marginal note:Where commission outside Canada

  (2) A proceeding in respect of an offence under this Act that is committed outside Canada may be instituted, tried and determined at any place in Canada.

Forfeiture

Marginal note:Forfeiture

• 137 (1) A court that convicts a person of an offence under this Act may, in addition to any other punishment imposed, order that any offence-related property seized in relation to the offence be forfeited to Her Majesty in right of Canada.

• Marginal note:Regulations

  (2) The regulations may define the expression “offence-related property” for the purposes of this section, may provide for any matter relating to the application of this section, and may include provisions respecting the return to their lawful owner, disposition, or disposition of the proceeds of disposition, of offence-related property that has been seized.

Officers Authorized to Enforce Act

Marginal note:Powers of peace officer

• 138 (1) An officer, if so authorized, has the authority and powers of a peace officer — including those set out in sections 487 to 492.2 of the Criminal Code — to enforce this Act, including any of its provisions with respect to the arrest, detention or removal from Canada of any person.

• Marginal note:Temporary assistants

  (2) An officer may, in cases of emergency, employ a person to assist the officer in carrying out duties under this Act. That person has the authority and powers of the officer for a period of no more than 48 hours, unless approved by the Minister.

Marginal note:Search

• 139 (1) An officer may search any person seeking to come into Canada and may search their luggage and personal effects and the means of transportation that conveyed the person to Canada if the officer believes on reasonable grounds that the person

  • (a) has not revealed their identity or has hidden on or about their person documents that are relevant to their admissibility; or

  • (b) has committed, or possesses documents that may be used in the commission of, an offence referred to in section 117, 118 or 122.

• Marginal note:Search by person of same sex

  (2) A search of a person under this section must be performed by a person of the same sex as the person being searched. If an officer of the same sex is not available, any suitable person of the same sex may be authorized by an officer to perform the search.

Marginal note:Seizure

• 140 (1) An officer may seize and hold any means of transportation, document or other thing if the officer believes on reasonable grounds that it was fraudulently or improperly obtained or used or that the seizure is necessary to prevent its fraudulent or improper use or to carry out the purposes of this Act.

• Marginal note:Interpretation

  (2) Despite subsection 42(2) of the Canada Post Corporation Act, a thing or document that is detained under the Customs Act and seized by an officer is not in the course of post for the purposes of the Canada Post Corporation Act.

• Marginal note:Regulations

  (3) The regulations may provide for any matter relating to the application of this section and may include provisions respecting the deposit of security as a guarantee to replace things that have been seized or that might otherwise be seized, and the return to their lawful owner, and the disposition, of things that have been seized.

Marginal note:Oaths and evidence

141 Every officer has the authority to administer oaths and to take and receive evidence under oath on any matter arising out of this Act.

Peace Officers

Marginal note:Duties of peace officers to execute orders

• 142 (1) Every peace officer and every person in immediate charge or control of an immigrant station shall, when so directed by an officer, execute any warrant or written order issued under this Act for the arrest, detention or removal from Canada of any permanent resident or foreign national.

• Marginal note:Definition of immigrant station

  (2) In this section, immigrant station means, subject to subsection (3), a facility that is operated by the Canada Border Services Agency — or used by a peace officer or any party to an agreement or arrangement entered into under paragraph 13(2)(b) of the Canada Border Services Agency Act — for the purpose of detaining persons under this Act.

• Marginal note:Area of a penitentiary

  (3) An area of a penitentiary, as defined in subsection 2(1) of the Corrections and Conditional Release Act, may be an immigrant station only if it is designated under subsection 94.4(1) of that Act.

• Marginal note:Detention

  (4) A person detained under this Act must not be detained in a designated immigrant station, as defined in section 94.1 of the Corrections and Conditional Release Act, unless, subject to subsections (5) to (7), the Minister determines that the person is to be detained in a designated immigrant station because the person requires a high degree of supervision and control, based on

  • (a) the nature and level of the danger to the public that the person poses, having regard to any of the following factors:

    • (i) any conviction in Canada under an Act of Parliament for a sexual offence or an offence involving violence or weapons,

    • (ii) any conviction outside Canada for an offence that, if committed in Canada, would constitute a sexual offence or an offence involving violence or weapons under an Act of Parliament,

    • (iii) any pending charges in Canada under an Act of Parliament for a sexual offence or an offence involving violence or weapons,

    • (iv) any pending charges outside Canada, for an offence that, if committed in Canada, would constitute a sexual offence or an offence involving violence or weapons under an Act of Parliament,

    • (v) association with a criminal organization, within the meaning of subsection 121.1(1), or

    • (vi) association with an organization that engages, or has engaged, in terrorism; or

  • (b) any serious non-compliance by the person with the rules, applicable in an immigrant station, any other detention facility or any correctional facility where the person is or has been detained, with respect to

    • (i) the possession of weapons or the possession of or dealing in controlled substances, as defined in subsection 2(1) of the Controlled Drugs and Substances Act, or

    • (ii) violent or aggressive behaviour towards any other person.

• Marginal note:Minor children

  (5) The Minister must not determine that a minor child detained under this Act is to be detained in a designated immigrant station.

• Marginal note:Requirements prior to determination

  (6) Before determining that a person detained under this Act is to be detained in a designated immigrant station, the Minister must

  • (a) provide the person with a written notice informing them that the Minister is considering making a determination that the person is to be detained in a designated immigrant station and informing them of the right to make submissions and to retain and instruct counsel;

  • (b) allow the person a reasonable opportunity to exercise the rights referred in paragraph (a); and

  • (c) consider the person’s state of health and health care needs, including with respect to their mental health.

• Marginal note:Written reasons

  (7) If the Minister determines that a person detained under this Act is to be detained in a designated immigrant station, the Minister must provide the person with written reasons for the determination before the person is detained in a designated immigrant station.

• Marginal note:Emergencies

  (8) Subsections (6) and (7) do not apply in an emergency in which a person detained under the Act must be immediately detained in a designated immigrant station because of a risk to the safety of the person or to other persons in, or a risk to the security of, the immigrant station where the person is or would otherwise be detained.

• Marginal note:Rights of person detained

  (9) If a person is detained in a designated immigrant station in the circumstances described in subsection (8), the Minister must

  • (a) as soon as feasible after the person is detained in the designated immigrant station, provide the person with a written notice informing them that the Minister is considering making a determination that the person is to remain detained in a designated immigrant station and informing them of the right to make submissions and to retain and instruct counsel; and

  • (b) allow the person a reasonable opportunity to exercise the rights referred in paragraph (a).

• Marginal note:Written reasons

  (10) If the Minister determines that a person detained in a designated immigrant station in the circumstances described in subsection (8) is to remain detained in the designated immigrant station, the Minister must provide the person with written reasons for the determination.

Marginal note:Authority to execute warrants and orders

143 A warrant issued or an order to detain made under this Act is, notwithstanding any other law, sufficient authority to the person to whom it is addressed or who may receive and execute it to arrest and detain the person with respect to whom the warrant or order was issued or made.

Ticketable Offences

Marginal note:Prosecution of designated offences

• 144 (1) In addition to other procedures set out in this Act or in the Criminal Code for commencing a proceeding, proceedings in respect of any offence that is prescribed by regulation may be commenced in accordance with this section.

• Marginal note:Procedure

  (2) An officer may commence a proceeding by

  • (a) completing a ticket that consists of a summons portion and an information portion;

  • (b) delivering the summons portion of the ticket to the accused or mailing it to the accused at the accused’s latest known address; and

  • (c) filing the information portion of the ticket with a court of competent jurisdiction before or as soon as practicable after the summons portion has been delivered or mailed.

• Marginal note:Content of ticket

  (3) The summons and information portions of a ticket must

  • (a) set out a description of the offence and the time and place of its alleged commission;

  • (b) include a statement, signed by the officer, that there are reasonable grounds to believe that the accused committed the offence;

  • (c) set out the amount of the prescribed fine for the offence and the manner in which and period within which it must be paid;

  • (d) include a statement that, if the accused pays the fine within the period set out in the ticket, a conviction will be entered and recorded against the accused; and

  • (e) include a statement that if the accused wishes to plead not guilty or for any other reason fails to pay the fine within the period set out in the ticket, the accused must appear in the court and at the time set out in the ticket.

• Marginal note:Consequences of payment

  (4) Payment of the fine by the accused within the period set out in the ticket constitutes a plea of guilty to the offence described in the ticket and, following the payment,

  • (a) a conviction shall be entered against the accused and no further action shall be taken against the accused in respect of that offence; and

  • (b) any thing seized from the accused under this Act relating to the offence described in the ticket, or any proceeds realized from its disposition, are forfeited to Her Majesty in right of Canada and may be disposed of as the Minister directs.

• Marginal note:Regulations

  (5) The regulations may provide for any matter relating to the application of this section, and may include provisions prescribing

  • (a) the offences referred to in subsection (1) and the manner in which those offences may be described in tickets; and

  • (b) the amount of the fine, not exceeding $10,000, for a prescribed offence.

Debt Due to Her Majesty

Marginal note:Debts due

• 145 (1) The following amounts are debts due to Her Majesty in right of Canada payable on demand:

  • (a) a debt incurred by Her Majesty for which any person is liable under this Act;

  • (b) an amount that a person has agreed to pay as a deposit or guarantee of performance of an obligation under this Act;

  • (b.1) the amount of a penalty imposed under any regulation made under paragraph 32(d.4);

  • (c) the costs incurred in removing a prescribed foreign national from Canada;

  • (d) an amount that is ordered to be paid under section 147 on account of an unpaid liability; and

  • (e) an amount referred to in paragraph 148(1)(g).

• Marginal note:Debts due — sponsors

  (2) Subject to any federal-provincial agreement, an amount that a sponsor is required to pay under the terms of an undertaking is payable on demand to Her Majesty in right of Canada and Her Majesty in right of the province concerned and may be recovered by Her Majesty in either or both of those rights.

• Marginal note:Recovery of debt

  (3) A debt may be recovered at any time.

Collection of Debts Due to Her Majesty

Marginal note:Certificates

• 146 (1) An amount or part of an amount payable under this Act that has not been paid may be certified by the Minister

  • (a) without delay, if the Minister is of the opinion that the person liable for that amount is attempting to avoid payment; and

  • (b) in any other case, on the expiration of 30 days after the default.

• Marginal note:Minister of Employment and Social Development

  (1.1) When a penalty is imposed as a result of the Minister of Employment and Social Development exercising a power conferred on him or her by regulation made under paragraph 32(d.4), that Minister is responsible for the recovery of the debt referred to in paragraph 145(1)(b.1).

• Marginal note:Judgments

  (2) The certificate is to be filed and registered in the Federal Court and, when registered, has the same force and effect, and all proceedings may be taken, as if the certificate were a judgment obtained in the Court for a debt of the amount specified in the certificate plus interest to the day of payment.

• Marginal note:Costs

  (3) The costs of registering the certificate are recoverable in the same manner as if they had been included in the certificate.

Marginal note:Garnishment

• 147 (1) If the Minister is of the opinion that a person is or is about to become liable to make a payment to a person liable to make a payment under this Act, the Minister may, by written notice, order the first person to pay to the Receiver General, on account of the second person’s liability, all or part of the money otherwise payable to the second person.

• Marginal note:Applicability to future payments

  (2) If the Minister, under subsection (1), orders an employer to pay to the Receiver General money otherwise payable to an employee as remuneration,

  • (a) the order is applicable to all future payments of remuneration until the liability is satisfied; and

  • (b) the employer shall pay to the Receiver General out of each payment of remuneration the amount that the Minister stipulates in the notice.

• Marginal note:Discharge of liability

  (3) The receipt of the Minister is a good and sufficient discharge of the original liability to the extent of the payment.

• Marginal note:Regulations

  (4) The regulations may provide for any matter relating to the application of this section.

Transportation Companies

Marginal note:Obligation of operators of vehicles and facilities

• 148 (1) A person who owns or operates a vehicle or a transportation facility, and an agent for such a person, must, in accordance with the regulations,

  • (a) not carry to Canada a person who is prescribed or does not hold a prescribed document, or whom an officer directs not to be carried;

  • (b) hold the prescribed documentation of a person whom it carries to Canada until an examination begins, present the person for examination and hold the person until the examination is completed;

  • (c) arrange for a medical examination and medical treatment and observation of a person it carries to Canada;

  • (d) provide prescribed information, including documentation and reports;

  • (e) provide facilities for the holding and examination of persons being carried to Canada;

  • (f) carry from Canada a person whom it has carried to or caused to enter Canada and who is prescribed or whom an officer directs to be carried;

  • (g) pay for all prescribed costs and fees relating to paragraphs (a), (b), (c) and (f); and

  • (h) provide security for compliance with its obligations under paragraphs (a) to (g).

• Marginal note:Seizure of security for compliance

  (2) If a person who owns or operates a vehicle or a transportation facility, or an agent of such a person, fails to comply with an obligation under this Act, all or part of any security provided by the person and any vehicle or other prescribed good owned or operated by the person may be detained, seized or forfeited to Her Majesty in right of Canada.

Marginal note:Use of information

149 The following provisions govern information provided under paragraph 148(1)(d):

• (a) the information may be used only for the purposes of this Act or the Department of Citizenship and Immigration Act or to identify a person for whom a warrant of arrest has been issued in Canada; and

• (b) notice regarding use of the information must be given to the person to whom it relates.

Marginal note:Regulations

150 The regulations may provide for any matter relating to the purposes of sections 148 and 149, may define, for the purposes of this Act, terms used in those sections and may include provisions respecting

• (a) the requirements and procedures applicable to a person who owns or operates a vehicle or a transportation facility;

• (b) the costs and fees for which a person who owns or operates a vehicle or a transportation facility is liable;

• (c) the procedures to be followed when a vehicle or other security is detained, seized, forfeited to Her Majesty in right of Canada or returned; and

• (d) the procedures by which a person may make claim that their interest in a vehicle or other good is not affected by it being detained, seized or forfeited to Her Majesty in right of Canada.

Sharing of Information

Marginal note:Regulations

• 150.1 (1) The regulations may provide for any matter relating to

  • (a) the collection, retention, use, disclosure and disposal of information, including a Social Insurance Number, for the purposes of this Act or for the purposes of program legislation as defined in section 2 of the Canada Border Services Agency Act;

  • (b) the disclosure of information for the purposes of national security, the defence of Canada or the conduct of international affairs, including the implementation of an agreement or arrangement entered into under section 5 or 5.1 of the Department of Citizenship and Immigration Act or section 13 of the Canada Border Services Agency Act;

  • (c) the disclosure of information relating to the professional or ethical conduct of a person referred to in any of paragraphs 91(2)(a) to (c) in connection with a proceeding — other than a proceeding before a superior court — or application under this Act to a body that is responsible for governing or investigating that conduct or to a person who is responsible for investigating that conduct, for the purposes of ensuring that persons referred to in those paragraphs offer and provide professional and ethical representation and advice to persons in connection with such proceedings and applications;

  • (d) the retention, use, disclosure and disposal by the Royal Canadian Mounted Police of biometric information and any related personal information that is collected under this Act and provided to it for the enforcement of any law of Canada or a province; and

  • (e) the disclosure of information for the purposes of cooperation between the Government of Canada and the government of a province.

• Marginal note:Conditions

  (2) Regulations made under subsection (1) may include conditions under which the collection, retention, use, disposal and disclosure may be made.

PART 4Immigration and Refugee Board

Composition of Board

Marginal note:Immigration and Refugee Board

151 The Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division.

Marginal note:Composition

152 The Board is composed of a Chairperson and other members as are required to ensure the proper functioning of the Board.

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.

Marginal note:Chairperson and other members

• 153 (1) The Chairperson and members of the Refugee Appeal Division and Immigration Appeal Division

  • (a) are appointed to the Board by the Governor in Council, to hold office during good behaviour for a term not exceeding seven years, subject to removal by the Governor in Council at any time for cause, to serve in a regional or district office of the Board;

  • (b) [Repealed, 2010, c. 8, s. 18]

  • (c) are eligible for reappointment in the same or another capacity;

  • (d) shall receive the remuneration that may be fixed by the Governor in Council;

  • (e) are entitled to be paid reasonable travel and living expenses incurred while absent in the course of their duties, in the case of a full-time member, from their ordinary place of work or, in the case of a part-time member, while absent from their ordinary place of residence;

  • (f) are deemed to be employed in the public service for the purposes of the Public Service Superannuation Act and in the federal public administration for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act;

  • (g) may not accept or hold any office or employment or carry on any activity inconsistent with their duties and functions under this Act; and

  • (h) if appointed as full-time members, must devote the whole of their time to the performance of their duties under this Act.

• (1.1) [Repealed, 2012, c. 17, s. 84]

• Marginal note:Deputy Chairperson and Assistant Deputy Chairpersons

  (2) One Deputy Chairperson for each Division referred to in subsection (1) and not more than 10 Assistant Deputy Chairpersons are to be designated by the Governor in Council from among the full-time members of those Divisions.

• Marginal note:Full-time and part-time appointments

  (3) The Chairperson and the Deputy Chairpersons and Assistant Deputy Chairpersons of the Divisions referred to in subsection (1) are appointed on a full-time basis and the other members are appointed on a full-time or part-time basis.

• Marginal note:Qualification

  (4) The Deputy Chairperson of the Immigration Appeal Division and a majority of the Assistant Deputy Chairpersons of that Division and at least 10 per cent of the members of the Divisions referred to in subsection (1) must be members of at least five years standing at the bar of a province or notaries of at least five years standing at the Chambre des notaires du Québec.

Marginal note:Disposition after member ceases to hold office

154 A former member of the Board, within eight weeks after ceasing to be a member, may make or take part in a decision on a matter that they heard as a member, if the Chairperson so requests. For that purpose, the former member is deemed to be a member.

Marginal note:Disposition if member unable to take part

155 If a member of a three-member panel is unable to take part in the disposition of a matter that the member has heard, the remaining members may make the disposition and, for that purpose, are deemed to constitute the applicable Division.

Marginal note:Immunity and no summons

156 The following rules apply to the Chairperson and the members in respect of the exercise or purported exercise of their functions under this Act:

• (a) no criminal or civil proceedings lie against them for anything done or omitted to be done in good faith; and

• (b) they are not competent or compellable to appear as a witness in any civil proceedings.

Head Office and Staff

Marginal note:Head office

• 157 (1) The head office of the Board shall be in the National Capital Region as described in the schedule to the National Capital Act.

• Marginal note:Residence — Chairperson

  (2) The Chairperson must live in the National Capital Region or within reasonable commuting distance of it.

Marginal note:Personnel

158 The Executive Director and other personnel necessary for the proper conduct of the business of the Board shall be appointed in accordance with the Public Service Employment Act, and the personnel are deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

Duties of Chairperson

Marginal note:Chairperson

• 159 (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson

  • (a) has supervision over and direction of the work and staff of the Board;

  • (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;

  • (e) assigns administrative functions to the members of the Board;

  • (f) apportions work among the members of the Board and fixes the place, date and time of proceedings;

  • (g) takes any action that may be necessary to ensure that the members of the Board carry out their duties efficiently and without undue delay;

  • (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

  • (i) may appoint and, subject to the approval of the Treasury Board, fix the remuneration of experts or persons having special knowledge to assist the Divisions in any matter.

• 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.

Marginal note:Absence, incapacity or vacancy

160 In the event of the absence or incapacity of the Chairperson, or if the office of Chairperson is vacant, the Minister may authorize one of the Deputy Chairpersons or any other member of the Board to act as Chairperson.

Functioning of Board

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;

  • (a.1) the factors to be taken into account in fixing or changing the date of the hearing referred to in subsection 100(4.1);

  • (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;

  • (b) the conduct of persons in proceedings before the Board, as well as the consequences of, and sanctions for, the breach of those rules;

  • (c) the information that may be required and the manner in which, and the time within which, it must be provided with respect to a proceeding before the Board; and

  • (d) any other matter considered by the Chairperson to require rules.

• Marginal note:Distinctions

  (1.1) The rules made under paragraph (1)(c) may distinguish among claimants for refugee protection who make their claims inside Canada on the basis of whether their claims are made at a port of entry or elsewhere or on the basis of whether they are nationals of a country that is, on the day on which their claim is made, a country designated under subsection 109.1(1).

• Marginal note:Tabling in Parliament

  (2) The Minister shall cause a copy of any rule made under subsection (1) to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the approval of the rule by the Governor in Council.

Provisions that Apply to All Divisions

Marginal note:Sole and exclusive jurisdiction

• 162 (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.

• Marginal note:Procedure

  (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.

Marginal note:Composition of panels

163 Matters before a Division shall be conducted before a single member unless, except for matters before the Immigration Division, the Chairperson is of the opinion that a panel of three members should be constituted.

Marginal note:Presence of parties

164 Where a hearing is held by a Division, it may, in the Division’s discretion, be conducted in the presence of, or by a means of live telecommunication with, the person who is the subject of the proceedings.

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.

Marginal note:Proceedings — all Divisions

166 Proceedings before a Division are to be conducted as follows:

• (a) subject to the other provisions of this section, proceedings must be held in public;

• (b) on application or on its own initiative, the Division may conduct a proceeding in the absence of the public, or take any other measure that it considers necessary to ensure the confidentiality of the proceedings, if, after having considered all available alternate measures, the Division is satisfied that there is

  • (i) a serious possibility that the life, liberty or security of a person will be endangered if the proceeding is held in public,

  • (ii) a real and substantial risk to the fairness of the proceeding such that the need to prevent disclosure outweighs the societal interest that the proceeding be conducted in public, or

  • (iii) a real and substantial risk that matters involving public security will be disclosed;

• (c) subject to paragraph (d), proceedings before the Refugee Protection Division and the Refugee Appeal Division must be held in the absence of the public;

• (c.1) subject to paragraph (d), proceedings before the Immigration Division must be held in the absence of the public if they concern a person who is the subject of a proceeding before the Refugee Protection Division or the Refugee Appeal Division that is pending or who has made an application for protection to the Minister that is pending;

• (d) on application or on its own initiative, the Division may conduct a proceeding in public, or take any other measure that it considers necessary to ensure the appropriate access to the proceedings if, after having considered all available alternate measures and the factors set out in paragraph (b), the Division is satisfied that it is appropriate to do so;

• (e) despite paragraphs (b) to (c.1), a representative or agent of the United Nations High Commissioner for Refugees is entitled to observe proceedings concerning a protected person or a person who has made a claim for refugee protection or an application for protection; and

• (f) despite paragraph (e), the representative or agent may not observe any part of the proceedings that deals with information or other evidence in respect of which an application has been made under section 86, and not rejected, or with information or other evidence protected under that section.

Marginal note:Right to counsel

• 167 (1) A person who is the subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel.

• Marginal note:Representation

  (2) If a person who is the subject of proceedings is under 18 years of age or unable, in the opinion of the applicable Division, to appreciate the nature of the proceedings, the Division shall designate a person to represent the person.

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 appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.

• Marginal note:Abuse of process

  (2) A Division may refuse to allow an applicant to withdraw from a proceeding if it is of the opinion that the withdrawal would be an abuse of process under its rules.

Marginal note:Decisions and reasons

169 In the case of a decision of a Division, other than an interlocutory decision:

• (a) the decision takes effect in accordance with the rules;

• (b) reasons for the decision must be given;

• (c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing;

• (d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;

• (e) if the person who is the subject of proceedings before the Board or the Minister requests reasons for a decision within 10 days of notification of the decision, or in circumstances set out in the rules of the Board, the Division must provide written reasons; and

• (f) the period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later.

Refugee Protection Division

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.

Marginal note:Proceedings

170 The Refugee Protection Division, in any proceeding before it,

• (a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded;

• (b) must hold a hearing;

• (c) must notify the person who is the subject of the proceeding and the Minister of the hearing;

• (d) must provide the Minister, on request, with the documents and information referred to in subsection 100(4);

• (d.1) may question the witnesses, including the person who is the subject of the proceeding;

• (e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations;

• (f) may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister’s intention to intervene;

• (g) is not bound by any legal or technical rules of evidence;

• (h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; and

• (i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge.

Marginal note:No reopening of claim or application

170.2 The Refugee Protection Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — a claim for refugee protection, an application for protection or an application for cessation or vacation, in respect of which the Refugee Appeal Division or the Federal Court, as the case may be, has made a final determination.

Refugee Appeal Division

Marginal note:Proceedings

171 In the case of a proceeding of the Refugee Appeal Division,

• (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, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal;

• (a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister’s appeal or intervention in the appeal;

• (b) the Division 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; and

• (c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a trial court.

Marginal note:No reopening of appeal

171.1 The Refugee Appeal Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — an appeal in respect of which the Federal Court has made a final determination.

Immigration Division

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.

Marginal note:Proceedings

173 The Immigration Division, in any proceeding before it,

• (a) must, where practicable, hold a hearing;

• (b) must give notice of the proceeding to the Minister and to the person who is the subject of the proceeding and hear the matter without delay;

• (c) is not bound by any legal or technical rules of evidence; and

• (d) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.

Immigration Appeal Division

Marginal note:Court of record

• 174 (1) The Immigration Appeal Division is a court of record and shall have an official seal, which shall be judicially noticed.

• Marginal note:Powers

  (2) The Immigration Appeal Division has all the powers, rights and privileges vested in a superior court of record with respect to any matter necessary for the exercise of its jurisdiction, including the swearing and examination of witnesses, the production and inspection of documents and the enforcement of its orders.

Marginal note:Proceedings

• 175 (1) The Immigration Appeal Division, in any proceeding before it,

  • (a) must, in the case of an appeal under subsection 63(4), hold a hearing;

  • (b) is not bound by any legal or technical rules of evidence; and

  • (c) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.

• Marginal note:Presence of permanent resident

  (2) In the case of an appeal by a permanent resident under subsection 63(4), the Immigration Appeal Division may, after considering submissions from the Minister and the permanent resident and if satisfied that the presence of the permanent resident at the hearing is necessary, order the permanent resident to physically appear at the hearing, in which case an officer shall issue a travel document for that purpose.

Remedial and Disciplinary Measures

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).

• Marginal note:Reasons

  (2) The request is to be based on the reason that the member has become incapacitated from the proper execution of that office by reason of infirmity, has been guilty of misconduct, has failed in the proper execution of that office or has been placed, by conduct or otherwise, in a position that is incompatible with due execution of that office.

Marginal note:Measures

177 On receipt of the request, the Minister may take one or more of the following measures:

• (a) obtain, in an informal and expeditious manner, any information that the Minister considers necessary;

• (b) refer the matter for mediation, if the Minister is satisfied that the issues in relation to the request may be appropriately resolved by mediation;

• (c) request of the Governor in Council that an inquiry be held under section 178; or

• (d) advise the Chairperson that the Minister considers that it is not necessary to take further measures under this section or sections 178 to 185.

Marginal note:Appointment of inquirer

178 On receipt of a request referred to in paragraph 177(c), the Governor in Council may, on the recommendation of the Minister of Justice, appoint a judge of a superior court to conduct an inquiry.

Marginal note:Powers

179 The judge has all the powers, rights and privileges that are vested in a superior court, including the power

• (a) to issue a summons requiring any person to appear at the time and place mentioned in the summons to testify about all matters within that person’s knowledge relative to the inquiry and to produce any document or thing relative to the inquiry that the person has or controls; and

• (b) to administer oaths and examine any person on oath.

Marginal note:Staff

180 The judge may engage the services of counsel and other persons having technical or specialized knowledge to assist the judge in conducting the inquiry, establish the terms and conditions of their engagement and, with the approval of the Treasury Board, fix and pay their remuneration and expenses.

Marginal note:Exceptions to public hearing

• 181 (1) An inquiry must be held in public. However, the judge may, on application, take any appropriate measures and make any order that the judge considers necessary to ensure the confidentiality of the inquiry if, after having considered all available alternate measures, the judge is satisfied that there is

  • (a) a real and substantial risk that matters involving public security will be disclosed;

  • (b) a real and substantial risk to the fairness of the inquiry such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; or

  • (c) a serious possibility that the life, liberty or security of a person will be endangered.

• Marginal note:Confidentiality of application

  (2) If the judge considers it appropriate, the judge may take any measures and make any order that the judge considers necessary to ensure the confidentiality of a hearing held in respect of an application under subsection (1).

Marginal note:Rules of evidence

• 182 (1) In conducting an inquiry, the judge is not bound by any legal or technical rules of evidence and may receive, and base a decision on, evidence presented in the proceedings that the judge considers credible or trustworthy in the circumstances of the case.

• Marginal note:Intervenors

  (2) An interested party may, with leave of the judge, intervene in an inquiry on any terms and conditions that the judge considers appropriate.

Marginal note:Right to be heard

183 The member who is the subject of the inquiry shall be given reasonable notice of the subject-matter of the inquiry and of the time and place of any hearing and shall be given an opportunity, in person or by counsel, to be heard at the hearing, to cross-examine witnesses and to present evidence.

Marginal note:Report to Minister

• 184 (1) After an inquiry has been completed, the judge must submit a report containing the judge’s findings and recommendations, if any, to the Minister.

• Marginal note:Recommendations

  (2) The judge may, for any of the reasons set out in subsection 176(2), recommend in the report that the member be suspended without pay or removed from office or that any other disciplinary measure or any remedial measure be taken.

Marginal note:Transmission of report to Governor in Council

185 If the Minister receives a report of an inquiry in which the judge makes a recommendation, the Minister shall send the report to the Governor in Council who may, if the Governor in Council considers it appropriate, suspend the member without pay, remove the member from office or impose any other disciplinary measure or any remedial measure.

Marginal note:Rights not affected

186 Nothing in sections 176 to 185 affects any right or power of the Governor in Council in relation to the removal of a member from office for cause.

PART 4.1Electronic Administration

Marginal note:Powers

• 186.1 (1) The Minister may administer this Act using electronic means, including as it relates to its enforcement.

• Marginal note:Exception

  (2) This Part does not apply to the Minister of Employment and Social Development in respect of any activity the administration of which is the responsibility of that Minister under this Act.

• Marginal note:Officer

  (3) For greater certainty, any person or class of persons who are designated as officers by the Minister to carry out any purpose of this Act may, in the exercise of their powers or the performance of their duties and functions, use the electronic means that are made available or specified by the Minister.

• Marginal note:Delegation

  (4) For greater certainty, a person who has been authorized by the Minister to do anything that may be done by the Minister under this Act, may do so using the electronic means that are made available or specified by the Minister.

• Marginal note:Decision, determination or examination by automated system

  (5) For greater certainty, an electronic system, including an automated system, may be used by the Minister to make a decision or determination under this Act, or by an officer to make a decision or determination or to proceed with an examination under this Act, if the system is made available to the officer by the Minister.

Marginal note:Conditions for electronic version

186.2 A requirement under this Act to provide a signature, or to make an application, request, claim, decision or determination, or to submit or issue any document, or to give notice or provide information, or to submit a document in its original form, is satisfied by its electronic version, if

• (a) the electronic version is provided by the electronic means, including an electronic system, that are made available or specified by the Minister; and

• (b) any other requirements that may be prescribed have been met.

Marginal note:Regulations

• 186.3 (1) The regulations may provide for any matter respecting the application of section 186.1 and paragraph 186.2(b), and may include provisions respecting

  • (a) the technology or format to be used, or the standards, specifications or processes to be followed, including for the making or verifying of an electronic signature and the manner in which it is to be used; and

  • (b) the date and time when, and the place where, an electronic version of an application, request, claim, notice, decision, determination, document or any information is deemed to be sent or received.

• Marginal note:Requirement to use electronic means

  (2) The regulations may require a foreign national or another individual who, or entity that, makes an application, request or claim, submits any document or provides information under this Act to do so using electronic means, including an electronic system. The regulations may also include provisions respecting those means, including that system, respecting the circumstances in which that application, request or claim may be made, the document may be submitted or the information may be provided by other means and respecting those other means.

• Marginal note:Minister’s power

  (3) The regulations may prescribe the circumstances in which the Minister may require a foreign national or another individual who, or an entity that, makes an application, request or claim, submits any document or provides information under this Act to do so using any means that are specified by the Minister.

• Marginal note:Electronic payments

  (4) The regulations may

  • (a) require that payments that are required to be made or evidence of payment that is required to be provided under this Act must be made or provided by means of an electronic system;

  • (b) include provisions respecting such a system, respecting the circumstances in which those payments may be made or evidence of payments may be provided by other means, and respecting those other means; and

  • (c) include provisions respecting the date and time when, and the place where, an electronic payment or evidence of payment is deemed to be sent or received.

• Marginal note:Incorporation by reference

  (5) The regulations may incorporate by reference the standards or specifications of any government, person or organization, either as they exist on a specified date or as amended from time to time.

Marginal note:Clarification

186.4 If any provision of this Act or the regulations authorizes an officer or another individual to require a foreign national or another individual or an entity to submit a visa or other document or to provide information, the officer or individual is not precluded by this Part from requiring the foreign national, other individual or entity to submit the visa or other document or to provide the information, as the case may be, in accordance with that provision.

PART 5Transitional Provisions, Consequential and Related Amendments, Coordinating Amendments, Repeals and Coming into Force

Transitional Provisions

Marginal note:Definition of former Act

187 For the purposes of sections 188 to 201, former Act means the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1985, and, where applicable, the regulations and rules made under it.

Marginal note:Continuation

• 188 (1) The Immigration and Refugee Board continued by section 57 of the former Act is hereby continued.

• Marginal note:Chairperson, Deputy Chairpersons, Assistant Deputy Chairpersons

  (2) The Chairperson, Deputy Chairpersons and Assistant Deputy Chairpersons appointed under the former Act continue in the same capacity with the Board until the expiry or revocation of their respective appointments.

• Marginal note:Continuation — members

  (3) A member appointed under the former Act to the Convention Refugee Determination Division or the Immigration Appeal Division continues in office as a member of the Board until the expiry or revocation of their appointment.

• Marginal note:Executive Director

  Footnote ^*(4) The person who, on the coming into force of this section, held the office of Executive Director of the Board is deemed to have been appointed to that office under section 158, without prejudice to any salary and benefits he or she may receive by virtue of having held that office before that coming into force.

  • Return to footnote ^*[Note: Section 188 in force June 28, 2002, see SI/2002-97.]

Marginal note:Powers

Footnote ^*189 Sections 94.6, 102.001 to 102.003 and 107.1 of the former Act are, despite paragraph 274(a), deemed not to be repealed and the Minister may exercise any of the powers described in those sections with respect to any business or fund that was approved by the Minister before the coming into force of paragraph 274(a).

• Return to footnote ^*[Note: Paragraph 274(a) in force June 28, 2002, see SI/2002-97.]

Marginal note:Application of this Act

Footnote ^*190 Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.

• Return to footnote ^*[Note: Section 190 in force June 28, 2002, see SI/2002-97.]

Marginal note:Convention Refugee Determination Division

Footnote ^*191 Every application, proceeding or matter before the Convention Refugee Determination Division under the former Act that is pending or in progress immediately before the coming into force of this section, in respect of which substantive evidence has been adduced but no decision has been made, shall be continued under the former Act by the Refugee Protection Division of the Board.

• Return to footnote ^*[Note: Section 191 in force June 28, 2002, see SI/2002-97.]

Marginal note:Immigration Appeal Division

Footnote ^*192 If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board.

• Return to footnote ^*[Note: Section 192 in force June 28, 2002, see SI/2002-97.]

Marginal note:Continuation by Immigration Division

Footnote ^*193 Every application, proceeding or matter before the Adjudication Division under the former Act that is pending or in progress immediately before the coming into force of this section, in respect of which substantive evidence has been adduced but no decision has been made, shall be continued under this Act by the Immigration Division of the Board.

• Return to footnote ^*[Note: Section 193 in force June 28, 2002, see SI/2002-97.]

Marginal note:Refugee Protection Division

194 In cases referred to in section 191, a decision by the Refugee Protection Division following a hearing that has been commenced by the Convention Refugee Determination Division is not subject to an appeal under section 110.

Marginal note:Convention Refugee Determination Division

195 A decision made by the Convention Refugee Determination Division before the coming into force of this section is not subject to an appeal under section 110.

Marginal note:Appeals

196 Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act.

Marginal note:Stays

197 Despite section 192, if an appellant who has been granted a stay under the former Act breaches a condition of the stay, the appellant shall be subject to the provisions of section 64 and subsection 68(4) of this Act.

Marginal note:Refugee Protection Division

198 The Refugee Protection Division has jurisdiction to consider decisions of the Convention Refugee Determination Division that are set aside by the Federal Court, the Federal Court of Appeal or the Supreme Court of Canada, and shall dispose of those matters in accordance with the provisions of this Act.

Marginal note:Redetermination

199 Sections 112 to 114 apply to a redetermination of a decision set aside by the Federal Court with respect to an application for landing as a member of the post-determination refugee claimants in Canada class within the meaning of the Immigration Regulations, 1978.

Marginal note:Exclusion

Footnote ^*200 Subsection 31(1) does not apply with respect to persons who were permanent residents, within the meaning of the former Act, on the coming into force of this section.

• Return to footnote ^*[Note: Section 200 in force June 28, 2002, see SI/2002-97.]

Marginal note:Regulations

201 The regulations may provide for measures regarding the transition between the former Act and this Act, including measures regarding classes of persons who will be subject in whole or in part to this Act or the former Act and measures regarding financial and enforcement matters.

Consequential and Related Amendments

Access to Information Act

202 [Amendment]

Agricultural Marketing Programs Act

203 [Amendment]

Animal Pedigree Act

204 and 205 [Amendments]

Bank Act

206 [Amendment]

Budget Implementation Act, 1998

207 [Amendment]

Business Development Bank of Canada Act

208 [Amendments]

Canada Business Corporations Act

209 [Amendment]

Canada Customs and Revenue Agency Act

210 [Amendment]