Balanced Refugee Reform Act (S.C. 2010, c. 8)
Full Document:
Assented to 2010-06-29
13. (1) Subsection 110(1) of the Act is replaced by the following:
Marginal note:Appeal
110. (1) A person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection, or a decision of the Refugee Protection Division rejecting an application by the Minister for a determination that refugee protection has ceased or an application by the Minister to vacate a decision to allow a claim for refugee protection.
(2) Subsection 110(3) of the Act is replaced by the following:
Marginal note:Making of appeal
(2.1) The appeal must be filed and perfected within the time limits set out in the regulations.
Marginal note:Procedure
(3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board.
Marginal note:Time limits
(3.1) Unless a hearing is held under subsection (6), the Refugee Appeal Division must make a decision within the time limits set out in the regulations.
Marginal note:Evidence that may be presented
(4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.
Marginal note:Exception
(5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister.
Marginal note:Hearing
(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3)
(a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal;
(b) that is central to the decision with respect to the refugee protection claim; and
(c) that, if accepted, would justify allowing or rejecting the refugee protection claim.
14. Subsection 111(2) of the Act is replaced by the following:
Marginal note:Manifestly unfounded
(1.1) For greater certainty, if the Refugee Appeal Division does not set it aside, the Refugee Protection Division’s determination under section 107.1 is confirmed.
Marginal note:Referrals
(2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that
(a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and
(b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division.
14.1 The Act is amended by adding the following after section 111:
Regulations
Marginal note:Regulations
111.1 (1) The regulations may provide for any matter relating to the application of this Division, and may include provisions
(a) relating to the criteria referred to in subsection 109.1(1.2) and the process to be followed with respect to a designation made under subsection 109.1(1);
(b) establishing criteria for the purposes of paragraph 109.1(1.2)(e); and
(c) respecting the time limits
(i) for the hearing referred to in subsection 100(4.1),
(ii) for the filing and perfecting of an appeal under subsection 110(2.1), and
(iii) for the making of a decision by the Refugee Appeal Division, the extension of those time limits and the circumstances under which they do not apply.
Marginal note:Clarification — regulations made under subparagraph (1)(c)(i)
(2) Regulations made under subparagraph (1)(c)(i) may provide for time limits for any of the following claimants that are different from the time limits for other claimants:
(a) claimants who are nationals of a country that is, on the date of their interview referred to in subsection 100(4), a country designated under subsection 109.1(1);
(b) claimants who are nationals of a country of which a part is, on the date of their interview referred to in subsection 100(4), a part designated under subsection 109.1(1); or
(c) claimants who belong to a class of nationals of a country that is, on the date of their interview referred to in subsection 100(4), a class designated under subsection 109.1(1).
Marginal note:Clarification — regulations made under subparagraph (1)(c)(ii)
(3) Regulations made under subparagraph (1)(c)(ii) may provide for time limits for the filing and perfecting of appeals by any of the following claimants that are different from the time limits for other claimants:
(a) claimants whose claims are found by the Refugee Protection Division to be manifestly unfounded under section 107.1;
(b) claimants who are nationals of any country that is, on the day on which the decision being appealed is made, a country designated under subsection 109.1(1);
(c) claimants who are nationals of a country of which a part is, on the day on which the decision being appealed is made, a part designated under that subsection and who lived in that designated part before they left the country; or
(d) claimants who belong to a class of nationals of a country that is, on the day on which the decision being appealed is made, a class designated under that subsection.
Marginal note:Clarification — regulations made under subparagraph (1)(c)(iii)
(4) Regulations made under subparagraph (1)(c)(iii) may provide for time limits for making decisions in respect of appeals by claimants referred to in paragraphs (3)(a) to (d) that are different from the time limits for other claimants.
15. (1) Subsection 112(1) of the Act is replaced by the following:
Marginal note:Application for protection
112. (1) Subject to subsection (1.1), a person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations and the rules of the Board, apply to the Refugee Protection Division for protection if they are subject to a removal order that is in force.
Marginal note:Application to Minister
(1.1) In the case of a person described in subsection (3), the application for protection must be made to the Minister in accordance with the regulations.
Marginal note:Suspension of application
(1.2) Proceedings of the Refugee Protection Division in respect of an application are suspended on notice by an officer that
(a) a report has been referred to the Immigration Division for a determination of whether the applicant is inadmissible on grounds of security, violating human or international rights, serious criminality — as referred to in paragraph (3)(b) — or organized criminality; or
(b) the applicant is the subject of an authority to proceed issued under section 15 of the Extradition Act.
Marginal note:Transfer — inadmissibility
(1.3) On notice by an officer that the Immigration Division has made a determination that the applicant is inadmissible on the grounds referred to in paragraph (1.2)(a), consideration of the application is transferred to the Minister.
Marginal note:Continuation
(1.4) On notice by an officer that the Immigration Division has made a determination that the applicant is not inadmissible on the grounds referred to in paragraph (1.2)(a), consideration of the application is continued by the Refugee Protection Division.
Marginal note:Termination after surrender under Extradition Act
(1.5) If the applicant is ordered surrendered by the Minister of Justice under the Extradition Act, consideration of the application is terminated.
Marginal note:Continuation
(1.6) If the applicant is finally discharged under the Extradition Act, consideration of the application is continued by the Refugee Protection Division.
Marginal note:Transfer: Refugee Convention
(1.7) If the Refugee Protection Division makes a determination that the applicant is referred to in section F of Article 1 of the Refugee Convention, consideration of the application is transferred to the Minister.
(2) The portion of subsection 112(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:Exception
(2) Despite subsections (1) and (1.1), a person may not apply for protection if
(3) Subsection 112(2) of the Act is amended by adding the following after paragraph (b):
(b.1) subject to subsection (2.1), less than 12 months have passed since their claim for refugee protection was last rejected — unless it was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division;
(4) Section 112 of the Act is amended by adding the following after subsection (2):
Marginal note:Exemption
(2.1) The Minister may exempt from the application of paragraph (2)(b.1)
(a) the nationals — or, in the case of persons who do not have a country of nationality, the former habitual residents — of a country;
(b) the nationals or former habitual residents of a country who, before they left the country, lived in a given part of that country; and
(c) a class of nationals or former habitual residents of a country.
Marginal note:Application
(2.2) However, an exemption made under subsection (2.1) does not apply to persons in respect of whom, after the day on which the exemption comes into force, a decision is made respecting their claim for refugee protection by the Refugee Protection Division or, if an appeal is made, by the Refugee Appeal Division.
Marginal note:Regulations
(2.3) The regulations may govern any matter relating to the application of subsection (2.1) or (2.2) and may include provisions establishing the criteria to be considered when an exemption is made.
(5) Subsection 112(3) of the Act is amended by striking out “or” at the end of paragraph (c) and by adding the following after paragraph (c):
(c.1) made an application for protection and the consideration of that application was transferred to the Minister under subsection (1.7); or
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