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

Act current to 2022-07-13 and last amended on 2022-06-23. Previous Versions

PART 2Refugee Protection (continued)

DIVISION 2Convention Refugees and Persons in Need of Protection (continued)

Suspension or Termination of Consideration of Claim

Marginal note:Suspension

  •  (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.

  • 2001, c. 27, s. 103
  • 2012, c. 17, s. 35

Marginal note:Notice of ineligible claim

  •  (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

  •  (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

 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

  •  (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

 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.

  • 2010, c. 8, s. 11.1
  • 2012, c. 17, s. 57

Cessation of Refugee Protection

Marginal note:Rejection

  •  (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

  •  (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

  •  (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.

  • 2010, c. 8, s. 12
  • 2012, c. 17, s. 58

Appeal to Refugee Appeal Division

Marginal note:Appeal

  •  (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.

  • 2001, c. 27, s. 110
  • 2010, c. 8, s. 13
  • 2012, c. 17, ss. 36, 84

Marginal note:Decision

  •  (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.

  • 2001, c. 27, s. 111
  • 2010, c. 8, s. 14
  • 2012, c. 17, s. 37
 
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