Balanced Refugee Reform Act (S.C. 2010, c. 8)

Assented to 2010-06-29

Balanced Refugee Reform Act

S.C. 2010, c. 8

Assented to 2010-06-29

An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act

SUMMARY

This enactment amends the Immigration and Refugee Protection Act, primarily in respect of the processing of refugee claims referred to the Immigration and Refugee Board. In particular, the enactment

  • (a) provides for the referral of a refugee claimant to an interview with an Immigration and Refugee Board official, who is to collect information and schedule a hearing before the Refugee Protection Division;

  • (b) provides that the members of the Refugee Protection Division are appointed in accordance with the Public Service Employment Act;

  • (c) provides for the coming into force, no more than two years after the day on which the enactment receives royal assent, of the provisions of the Immigration and Refugee Protection Act that permit a claimant to appeal a decision of the Refugee Protection Division to the Refugee Appeal Division;

  • (d) authorizes the Minister to designate, in accordance with the process and criteria established by the regulations certain countries, parts of countries or classes of nationals;

  • (e) provides clarification with respect to the type of evidence that may be put before the Refugee Appeal Division and the circumstances in which that Division may hold a hearing;

  • (f) prohibits a person whose claim for refugee protection has been rejected from applying for a temporary resident permit or applying to the Minister for protection if less than 12 months have passed since their claim was rejected;

  • (g) authorizes the Minister, in respect of applications for protection, to exempt nationals, or classes of nationals, of a country or part of a country from the 12-month prohibition;

  • (h) provides clarification with respect to the Minister’s authority to grant permanent resident status or an exemption from any obligations of the Act on humanitarian and compassionate grounds or on public policy grounds;

  • (i) limits the circumstances in which the Minister may examine requests for permanent resident status or for an exemption from any obligations of the Act on humanitarian and compassionate grounds; and

  • (j) enacts transitional provisions respecting the processing of pending claims by the Minister or the Immigration and Refugee Board.

The enactment also amends the Federal Courts Act to increase the number of Federal Court judges.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

 This Act may be cited as the Balanced Refugee Reform Act.

2001, c. 27IMMIGRATION AND REFUGEE PROTECTION ACT

 Paragraph 16(2)(b) of the Immigration and Refugee Protection Act is replaced by the following:

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

 Section 24 of the Act is amended by adding the following after subsection (3):

  • Marginal note:Restriction

    (4) A foreign national whose claim for refugee protection has been rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division may not request a temporary resident permit if less than 12 months have passed since their claim was last rejected or determined to be withdrawn or abandoned.

Marginal note:2008, c. 28, s. 117
  •  (1) Subsection 25(1) of the Act is replaced by the following:

    Marginal note:Humanitarian and compassionate considerations — request of foreign national
    • 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

    • Marginal note:Payment of fees

      (1.1) The Minister is seized of a request referred to in subsection (1) only if the applicable fees in respect of that request have been paid.

    • Marginal note:Exceptions

      (1.2) The Minister may not examine the request if the foreign national has already made such a request and the request is pending.

    • Marginal note:Non-application of certain factors

      (1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national.

  • (2) Subsection 25(2) of the French version of the Act is replaced by the following:

    • Marginal note:Critères provinciaux

      (2) Le statut de résident permanent ne peut toutefois être octroyé à l’étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables.

 The Act is amended by adding the following after section 25:

Marginal note:Humanitarian and compassionate considerations — Minister’s own initiative
  • 25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

  • Marginal note:Exemption

    (2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).

  • Marginal note:Provincial criteria

    (3) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.

Marginal note:Public policy considerations
  • 25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by public policy considerations.

  • Marginal note:Exemption

    (2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).

  • Marginal note:Provincial criteria

    (3) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.

 The portion of section 26 of the Act before paragraph (a) is replaced by the following:

Marginal note:Regulations

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

Marginal note:2008, c. 3, s. 3

 Paragraph 36(3)(e) of the Act is replaced by the following:

  • (e) inadmissibility under subsections (1) and (2) may not be based on an offence

    • (i) designated as a contravention under the Contraventions Act,

    • (ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or

    • (iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.

 Section 91 of the Act is replaced by the following:

Marginal note:Regulations

91. The regulations may govern who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or any Division of the Board, including an interview before an official referred to in subsection 100(4.1).

 Paragraph 94(2)(e) of the Act is replaced by the following:

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

 Paragraphs 95(1)(a) and (b) of the French version of the Act are replaced by the following:

  • a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié au sens de la Convention ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection;

  • b) la Commission lui reconnaît la qualité de réfugié au sens de la Convention ou celle de personne à protéger;

  •  (1) Section 100 of the Act is amended by adding the following after subsection (1):

    • Marginal note:Burden of proof

      (1.1) The burden of proving that a claim is eligible to be referred to the Refugee Protection Division rests on the claimant, who must answer truthfully all questions put to them.

  • (2) Subsection 100(4) of the Act is replaced by the following:

    • Marginal note:Duty of claimant

      (4) A person whose claim is referred to the Refugee Protection Division must attend an interview with an official of the Board on a date fixed by the referring officer in accordance with the rules of the Board and must at the interview produce all documents and information required by those rules. The date fixed for the interview must not be earlier than 15 days after the day on which the claim is referred, unless the claimant consents to an earlier date.

    • Marginal note:Hearing — Refugee Protection Division

      (4.1) The official of the Board who conducts the interview must, in accordance with the regulations and any directions of the Chairperson of the Board, fix the date on which the claimant is to attend a hearing before the Refugee Protection Division.

 The Act is amended by adding the following after section 107:

Marginal note:Manifestly unfounded

107.1 If the Refugee Protection Division rejects a claim for refugee protection, it may state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent.

 The Act is amended by adding the following after section 109:

Designated Countries of Origin

Marginal note:Designation of countries of origin
  • 109.1 (1) The Minister may, by order, for the purposes of section 111.1, designate a country or part of a country or a class of nationals of a country.

  • Marginal note:Limitation

    (1.1) The Minister may make a designation only if

    • (a) the number of claims for refugee protection made in Canada by nationals of the country in question is equal to or greater than the number set out in the regulations; and

    • (b) the rate of acceptance by the Refugee Protection Division of claims made by nationals of the country in question is equal to or lower than the rate set out in the regulations.

  • Marginal note:Criteria to be considered

    (1.2) In making a designation, the Minister must take the following criteria into account:

    • (a) the human rights record of the country in question as it relates to

      • (i) the factors set out in sections 96 and 97, and

      • (ii) the international human rights instruments specified in the regulations and any other international instrument that the Minister considers relevant;

    • (b) the availability in the country in question of mechanisms for seeking protection and redress;

    • (c) the number of claims for refugee protection made in Canada by nationals of the country in question;

    • (d) the rate of acceptance by the Refugee Protection Division of claims made by nationals of the country in question and the rate of appeals allowed by the Refugee Appeal Division in respect of appeals made by nationals of the country in question; and

    • (e) any other criteria set out in the regulations.

  • Marginal note:Statutory Instruments Act

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

 
Date modified: