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Immigration and Refugee Protection Regulations (SOR/2002-227)

Regulations are current to 2022-06-20 and last amended on 2022-05-20. Previous Versions

PART 20Transitional Provisions (continued)

DIVISION 6Court Proceedings

Marginal note:Judicial review

  •  (1) On the coming into force of this section, any application for leave to commence an application for judicial review and any application for judicial review or appeal from an application that was brought under the former Act that is pending before the Federal Court or the Supreme Court of Canada is deemed to have been commenced under Division 8 of Part 1 of the Immigration and Refugee Protection Act and is governed by the provisions of that Division and section 87.

  • Marginal note:Application for non-disclosure

    (2) On the coming into force of this section, any application under subsection 82.1(10) of the former Act that is pending before the Federal Court is deemed to be an application under section 87 of the Immigration and Refugee Protection Act.

  • Marginal note:Where no leave required

    (3) Despite subsection (1), an application for judicial review that was not subject to the requirement of an application for leave under the former Act and was pending on the coming into force of this section does not require such an application under the Immigration and Refugee Protection Act.

  • Marginal note:Judicial review after coming into force

    (4) Any judicial review proceeding brought in respect of any decision or order made or any matter arising under the former Act after the coming into force of this section is governed by Division 8 of Part 1 and section 87 of the Immigration and Refugee Protection Act.

  • Marginal note:Time for filing

    (5) A person in respect of whom the 30-day period provided by section 18.1 of the Federal Courts Act for making an application for judicial review from a decision or matter referred to in subsection 82.1(2) of the former Act has not elapsed on the coming into force of this section and who has not made such an application has 60 days from the coming into force of this section to file an application for leave under section 72 of the Immigration and Refugee Protection Act.

  • Marginal note:Validity or lawfulness of a decision or act

    (6) The validity or lawfulness of a decision or act made under the former Act that is the subject of a judicial review procedure or appeal referred to in subsection (1) is determined in accordance with the provisions of the former Act.

  • 2002, c. 8, s. 182
  • SOR/2009-163, s. 18(F)

Marginal note:Other court proceedings

 On the coming into force of this section, an appeal made under section 102.17 of the former Act or an application for an order made under section 102.2 of the former Act that is pending remains governed by the provisions of the former Act.

Marginal note:Decisions referred back

  •  (1) Subject to subsections (2) and (3), if a decision or an act of the Minister or an immigration officer under the former Act is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before this section comes into force, the determination shall be made in accordance with the Immigration and Refugee Protection Act.

  • Marginal note:Decisions or acts not provided for by Immigration and Refugee Protection Act

    (2) If the decision or act referred to in subsection (1) was made under paragraph 46.01(1)(e), subsection 70(5) or paragraph 77(3.01)(b) of the former Act and the Immigration and Refugee Protection Act makes no provision for the decision or act, no determination shall be made.

  • Marginal note:Skilled workers and self-employed persons

    (3) If a decision or an act of the Minister or an immigration officer under the former Act in respect of a person described in subparagraph 9(1)(b)(i) or paragraph 10(1)(b) of the former Regulations is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before December 1, 2003, the determination shall be made in accordance with subsections 361(4) and (5.2) of these Regulations.

  • Marginal note:Investors, entrepreneurs and provincial nominees

    (4) If a decision or an act of the Minister or an immigration officer under the former Act in respect of a person described in subparagraph 9(1)(b)(ii) or (iii) of the former Regulations is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before December 1, 2003, the determination shall be made in accordance with subsections 361(5), (5.1) and (6) of these Regulations.

  • Marginal note:Immigration Appeal Division decisions

    (5) If a decision of the Immigration Appeal Division made under the former Act is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before the date of the coming into force of this section, the Immigration Appeal Division shall dispose of the matter in accordance with the former Act.

  • Marginal note:Adjudication Division decisions

    (6) If a decision of the Adjudication Division made under the former Act is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before the date of the coming into force of this section, the Immigration Division shall dispose of the matter in accordance with the Immigration and Refugee Protection Act.

  • SOR/2003-383, s. 7

DIVISION 7Undertakings

Marginal note:Application of the Act to existing undertakings

  •  (1) Subject to subsection (2), an undertaking referred to in section 118 of the former Act that was given before the day on which this section comes into force is governed by the Immigration and Refugee Protection Act.

  • Marginal note:Recovery of social assistance payments

    (2) Payments that are made to or for the benefit of a person as social assistance or as financial assistance in the form of funds from a government resettlement assistance program referred to in subparagraph 139(1)(f)(ii) as a result of the breach of an undertaking, within the meaning of subparagraph (a)(ii) or paragraph (b) of the definition “undertaking” in subsection 2(1) of the former Regulations or of the definition “undertaking” in subsection 1(1) of the Humanitarian Designated Classes Regulations, that was given before the day on which this section comes into force, may be recovered from the person or organization that gave the undertaking as a debt due to Her Majesty in right of Canada or in right of a province.

  • Marginal note:Duration

    (3) For greater certainty, the duration of an undertaking referred to in section 118 of the former Act that was given to the Minister before the day on which this section comes into force is not affected by these Regulations.

  • Marginal note:Duration and terms

    (4) For greater certainty, if an immigrant visa was issued to a person described in section 7 of the former Regulations or section 4 of the Humanitarian Designated Classes Regulations before the day on which this section comes into force, the duration and terms of an undertaking, referred to in section 118 of the former Act, relating to that person are not affected by these Regulations.

DIVISION 8Non-Accompanying Family Members

Marginal note:Not required to be included

 A person is not required to include in an application a non-accompanying common-law partner or a non-accompanying child who is not a dependent son or a dependent daughter within the meaning of subsection 2(1) of the former Regulations and is a dependent child as defined in section 2 of these Regulations if the application was made under the former Act before the day on which this section comes into force.

Marginal note:Requirements not applicable

 If a person has made an application under the former Act before the day on which this section comes into force, the following provisions do not apply to the person in respect of any of their non-accompanying dependent children, referred to in section 352, or their non-accompanying common-law partner:

  • (a) paragraph 70(1)(e);

  • (b) subparagraph 72(1)(e)(i); and

  • (c) paragraph 108(1)(a).

Marginal note:Requirements not applicable

 If a person makes an application under the former Act before June 28, 2002, their non-accompanying dependent children, referred to in section 352, and their non-accompanying common-law partner shall not, for the purposes of that application, be considered inadmissible non-accompanying family members, referred to in paragraph 42(1)(a) of the Immigration and Refugee Protection Act, and are not subject to the requirements of paragraph 16(2)(b) of the Immigration and Refugee Protection Act or 51(b) of these Regulations.

  • SOR/2012-154, s. 17
  • SOR/2014-269, s. 6

Marginal note:Family members not excluded from family class

 If a person who made an application under the former Act before June 28, 2002 sponsors a non-accompanying dependent child, referred to in section 352, who makes an application as a member of the family class or the spouse or common-law partner in Canada class, or sponsors a non-accompanying common-law partner who makes such an application, paragraph 117(9)(d) does not apply in respect of that dependent child or common-law partner.

  • SOR/2004-167, s. 77

DIVISION 9Fiancés

Marginal note:Pending applications

 If a person referred to in paragraph (f) of the definition member of the family class in subsection 2(1) of the former Regulations made an application under those Regulations for a permanent resident visa, or their sponsor submitted a sponsorship application under those Regulations, before June 28, 2002, the person’s application or the sponsorship application, as the case may be, is governed by the former Act.

  • SOR/2004-167, s. 78

DIVISION 10Fees

Marginal note:Remission — right of landing fee

 The fee set out in column III of item 19 of the schedule to the Immigration Act Fees Regulations is remitted and shall be repaid by the Minister to the person who paid it if the fee is paid in respect of a person before they become a permanent resident under the Immigration and Refugee Protection Act and the person, at the time they made an application for landing under the former Regulations, was

  • (a) a member of the family class and 19 years of age or older and, on the day on which this section comes into force, is a foreign national referred to in paragraph 117(1)(b) or (e) of these Regulations; or

  • (b) an accompanying dependant of an immigrant, within the meaning of subsection 2(1) of the former Regulations, 19 years of age or older and not a spouse of the principal applicant.

Marginal note:Fees to be reapplied

  •  (1) A fee paid for processing an application in respect of which no decision has been made before the day on which this section comes into force or an application that has been refused but the refusal has not been communicated to the applicant before that day shall be applied to the cost of completing the processing of the application under the Immigration and Refugee Protection Act.

  • Marginal note:Exception

    (2) Subsection (1) does not apply in respect of an application for a returning resident permit.

Marginal note:Remission — returning resident permit fee

 The fee for a returning resident permit set out in column III of item 3 of the schedule to the Immigration Act Fees Regulations is remitted if, before the day on which this section comes into force, no decision has been made on the application for the permit or the application has been refused and the refusal has not been communicated to the applicant. If the fee is remitted, it shall be repaid by the Minister to the person who paid it.

Marginal note:Remission — fee for review of family business employment offer

 The fee set out in column III of item 16 of the schedule to the Immigration Act Fees Regulations for the review of an offer of employment made to an applicant in respect of a family business is remitted if, before the day on which this section comes into force, no determination has been made on the family business application or the application has been refused and the refusal has not been communicated to the applicant. If the fee is remitted, it shall be repaid by the Minister to the person who paid it.

DIVISION 11Economic Classes

Marginal note:Equivalent assessment

  •  (1) If, before the day on which this section comes into force, a foreign national referred to in subsection (2) has been assessed by a visa officer and awarded the number of units of assessment required by the former Regulations, that assessment is, for the purpose of these Regulations, an award of points equal or superior to the minimum number of points required of

    • (a) a skilled worker, in the case of a foreign national described in paragraph (2)(a);

    • (b) an investor, in the case of a foreign national described in paragraph (2)(b);

    • (c) an entrepreneur, in the case of a foreign national described in paragraph (2)(c); or

    • (d) a self-employed person, in the case of a foreign national described in paragraph (2)(d).

  • Marginal note:Applicant for immigrant visa

    (2) Subsection (1) applies in respect of a foreign national who submitted an application under the former Regulations, as one of the following, for an immigrant visa that is pending immediately before the day on which this section comes into force:

    • (a) a person described in subparagraph 9(1)(b)(i) or paragraph 10(1)(b) of the former Regulations;

    • (b) an investor; or

    • (c) an entrepreneur.

  • Marginal note:Application before January 1, 2002

    (3) During the period beginning on the day on which this section comes into force and ending on March 31, 2003, units of assessment shall be awarded to a foreign national, in accordance with the former Regulations, if the foreign national is an immigrant who,

    • (a) is referred to in subsection 8(1) of those Regulations, other than a provincial nominee, and

    • (b) before January 1, 2002, made an application for an immigrant visa under those Regulations that is still pending on the day on which this section comes into force and has not, before that day, been awarded units of assessment under those Regulations.

  • Marginal note:Pending applications — skilled workers

    (4) Beginning on December 1, 2003, a foreign national who is an immigrant who made an application under the former Regulations before January 1, 2002 for an immigrant visa as a person described in subparagraph 9(1)(b)(i) or paragraph 10(1)(b) of those Regulations, other than a self-employed person within the meaning of subsection 2(1) of those Regulations, and whose application is still pending on December 1, 2003 and who has not, before that day, been awarded units of assessment under those Regulations must, in order to become a permanent resident as a member of the federal skilled worker class,

    • (a) be awarded at least the minimum number of units of assessment required by those Regulations for a person described in subparagraph 9(1)(b)(i) or paragraph 10(1)(b) of those Regulations, other than a self-employed person within the meaning of subsection 2(1) of those Regulations; or

    • (b) meet the requirements of subsection 75(2) and paragraph 76(1)(b) of these Regulations and obtain a minimum of 67 points based on the factors set out in paragraph 76(1)(a) of these Regulations.

  • Marginal note:Pending applications — investors

    (5) Beginning on December 1, 2003, a foreign national who is an immigrant who made an application under the former Regulations before January 1, 2002 for an immigrant visa as an investor and whose application is still pending on December 1, 2003 and who has not, before that day, been awarded units of assessment under those Regulations must, in order to become a permanent resident as a member of the investor class,

    • (a) be determined to be an investor within the meaning of subsection 2(1) of those Regulations and be awarded at least the minimum number of units of assessment required by those Regulations for an investor; or

    • (b) be an investor within the meaning of subsection 88(1) of these Regulations and obtain a minimum of 35 points based on the factors set out in subsection 102(1) of these Regulations.

  • Marginal note:Pending applications — entrepreneurs

    (5.1) Beginning on December 1, 2003, a foreign national who is an immigrant who made an application under the former Regulations before January 1, 2002 for an immigrant visa as an entrepreneur and whose application is still pending on December 1, 2003 and who has not, before that day, been awarded units of assessment under those Regulations must, in order to become a permanent resident as a member of the entrepreneur class,

    • (a) be determined to be an entrepreneur within the meaning of subsection 2(1) of those Regulations and be awarded at least the minimum number of units of assessment required by those Regulations for an entrepreneur; or

    • (b) be an entrepreneur within the meaning of subsection 88(1) of these Regulations and obtain a minimum of 35 points based on the factors set out in subsection 102(1) of these Regulations.

  • Marginal note:Pending applications — self-employed persons

    (5.2) Beginning on December 1, 2003, a foreign national who is an immigrant who made an application under the former Regulations before January 1, 2002 for an immigrant visa as a self-employed person and whose application is still pending on December 1, 2003 and who has not, before that day, been awarded units of assessment under those Regulations must, in order to become a permanent resident as a member of the self-employed persons class,

    • (a) be determined to be a self-employed person within the meaning of subsection 2(1) of those Regulations and be awarded at least the minimum number of units of assessment required by those Regulations for a self-employed person; or

    • (b) be a self-employed person within the meaning of subsection 88(1) of these Regulations and obtain a minimum of 35 points based on the factors set out in subsection 102(1) of these Regulations.

  • Marginal note:Provincial nominees

    (6) If, before the day on which this section comes into force, a foreign national who was a provincial nominee submitted an application for a permanent resident visa under the former Regulations that is pending immediately before that day, the foreign national shall be assessed, and units of assessment shall be awarded to them, in accordance with those Regulations.

  • SOR/2003-383, s. 8
  • SOR/2010-195, s. 15(F)
 
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