ARCHIVED — Regulations Amending the Immigration and Refugee Protection Regulations

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Vol. 145, No. 27 — July 2, 2011

Statutory authority

Immigration and Refugee Protection Act

Sponsoring department

Department of Citizenship and Immigration

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary


Issue: It currently takes approximately four and a half years, on average, to remove an unsuccessful claimant who has exhausted all legal avenues from Canada. Long delays encourage individuals who are not in need of protection to use the asylum system as a way to remain in Canada. To address these challenges, the Minister of Citizenship, Immigration and Multiculturalism (the Minister) introduced Bill C-11, the Balanced Refugee Reform Act. The Balanced Refugee Reform Act, which received Royal Assent on June 29, 2010, includes legislative amendments to the Immigration and Refugee Protection Act (IRPA) that bar failed claimants from applying for Pre-Removal Risk Assessment (PRRA) for one year following the last Immigration and Refugee Board (IRB) decision on their claim. The purpose of this bar is to streamline the asylum system and enable faster removals of failed claimants. In spite of this, there could be circumstances in which events suddenly change in a country with respect to its conditions or policies. To ensure that failed claimants are not returned to a recent situation of risk, the Balanced Refugee Reform Act also gives the Minister of Citizenship, Immigration and Multiculturalism the authority to exempt persons from the one-year bar on access to a PRRA. Details regarding the criteria to be considered when making an exemption are to be provided in the Immigration and Refugee Protection Regulations (Regulations). In addition to these criteria, it is proposed that the Regulations be amended to eliminate some operational inefficiencies related to the asylum system and to provide concurrence between the Act and the Regulations.

Description: First, it is proposed that the Regulations be amended to establish criteria to be considered when the Minister makes an exemption to the one-year bar on access to PRRA. Specifically, before making an exemption to the one-year bar on PRRA, the Minister would have to determine if a change in circumstance in a foreign jurisdiction could lead its nationals to being subject to personalized risks for which Canada provides protection under sections 96 and 97 of the IRPA. Second, it is proposed that subsection 175(1) of the Regulations be repealed, which currently requires that successful asylum claimants (protected persons) apply for permanent residence within 180 days of the determination on their claim by the IRB. Repealing this subsection would eliminate administrative inefficiencies and facilitate full integration into Canadian society for successful claimants. Third, consequential amendments to the Regulations are proposed to ensure concurrence between the IRPA and the Regulations.

Cost-benefit statement: The costs associated with the exemption to the one-year bar on PRRA would exist irrespective of the proposed amendments, as they are associated with the legislative provisions enacted by the Balanced Refugee Reform Act. This includes a cost of $650,000 per year to establish and maintain a country assessment team for the purpose of identifying exemptions to the one-year bar on PRRA. The repeal of subsection 175(1) of the Regulations would result in minimal efficiency gains and savings for both the federal government and applicants.

Business and consumer impacts: The repeal of subsection 175(1) of the Regulations will have a positive impact on a relatively small group of successful applicants who are unable to apply for permanent residence within 180 days of a positive IRB decision or are unable to pay the fees associated with processing an application for permanent residence. The benefits of permanent residence include the ability to sponsor family members to come to Canada and to work without a permit, the acquisition of a permanent Social Insurance Number, as well as progress towards citizenship and full participation in Canadian society.

Domestic and international coordination and cooperation: Citizenship and Immigration Canada (CIC) will work closely with other federal departments and agencies to identify circumstances, such as the coming into force of new laws or the application of new policies or practices in foreign jurisdictions, that could merit exemptions to the one-year bar on PRRA.

Performance measurement and evaluation plan: Three years after implementation of the new asylum system under the Balanced Refugee Reform Act, a full review of the new system will be carried out. This would include a review of the elements of the new system that would be affected by the proposed regulatory amendments.


Issue

It currently takes approximately four and a half years, on average, to remove from Canada an unsuccessful claimant who has exhausted all legal avenues. In some cases, it can take 10 years or longer to remove a failed asylum claimant from Canada. Long delays encourage individuals who are not in need of protection to use the asylum system as a way to come and remain in Canada. These individuals have access to work permits, social services and welfare, and the current backlog allows these persons to live and work in Canada for years.

To address these challenges, the Minister of Citizenship, Immigration and Multiculturalism (the Minister) introduced Bill C-11, the Balanced Refugee Reform Act. On June 29, 2010, it received Royal Assent. As a result, the Immigration and Refugee Protection Act (IRPA) was amended to bar failed asylum claimants from applying for PRRA for one year following the last IRB decision on their claim. The PRRA is intended to provide an updated evaluation of the risk of returning a person to their country prior to removal. It is only one of the multiple layers of recourse claimants can access, and it has often been considered superfluous since the IRB already conducts a risk assessment within the meaning of sections 96 and 97 of IRPA during the claimant’s hearing. The PRRA contributes to the lengthy delays of the asylum system, as it can take on average six to nine months to conduct a PRRA. The purpose of the one-year bar on PRRA created by the Balanced Refugee Reform Act is to streamline the asylum system and enable faster removals of failed claimants.

Taking the foregoing into consideration, there could be circumstances in which events suddenly change in a country with respect to its conditions or policies. To ensure that failed claimants are not returned to a recent situation of risk that has arisen since their last IRB decision, the Balanced Refugee Reform Act also gives the Minister the authority to exempt persons from the one-year bar on access to a PRRA. This would provide a safety net for failed claimants who may face new risks following the final IRB decision, and would guard against the risk of refoulement, in line with section 7 of the Canadian Charter of Rights and Freedoms and Canada’s international obligations.

It is proposed that the Regulations provide further detail regarding the criteria to be considered by the Minister when making an exemption. The proposed Regulations would therefore clarify that an exemption should be made on consideration of sections 96 and 97 of the IRPA. (see footnote 1) These proposed amendments would assist in more consistent application and interpretation of the IRPA and its Regulations.

In addition to the proposed one-year bar on access to PRRA, it is proposed that the Regulations be amended to remove the requirement for successful asylum claimants to apply for permanent residence within 180 days of the IRB determination on their claim, as it is currently required by subsection 175(1) of the Regulations. (see footnote 2) This requirement was originally implemented to encourage protected persons to apply for permanent resident status soon after the determination on their claim by the IRB. It was intended to respond to a perceived gap in the number of protected persons applying for permanent resident status. This perception, however, was likely exaggerated due to poor data.

The consequence has been that protected persons who do not apply within 180 days re-apply for an exemption to this deadline based on humanitarian and compassionate (H&C) grounds. In practice, exemptions to the deadline are generally granted. Since 2004, protected persons applying after 180 days have been exempted from the stricter admissibility requirements and additional processing fee normally associated with H&C applications. This administrative measure was implemented on a temporary basis only, until regulatory amendments could be made to remove the 180-day filing deadline.

It is not efficient to have protected persons submit multiple applications for permanent residence. This is especially problematic in light of efforts under the Balanced Refugee Reform Act to streamline the asylum system and increase efficiency. Given that Citizenship and Immigration Canada’s (CIC) policy has been to grant access to the benefits of permanent resident status for protected persons outside of the 180-day deadline, it is proposed that this requirement, which adds unnecessary complexity to the immigration system, be repealed.

Finally, as described in greater detail below, amendments to the medical examination provisions in the Regulations are required due to changes made to the IRPA by the Balanced Refugee Reform Act. These amendments would ensure coherence between the IRPA and its Regulations and address problems of cross-reference. Thus, the proposed regulatory amendments to the medical examination provisions may be characterized as technical in nature.

Objectives

The legislative changes to the PRRA process are in keeping with the government’s stated objective of fast-tracking removals following a negative refugee decision. The objective of establishing criteria the Minister would have to consider in making an exemption to the one-year bar on PRRA is to provide for greater transparency and consistency in the application of this policy. It would also allow for more focused input from government and non-government partners when providing information relevant to an exemption decision. Finally, this proposed regulatory amendment would contribute to the overall streamlining goal of the Balanced Refugee Reform Act.

The repeal of subsection 175(1) of the Regulations would address a gap in asylum policy and further contribute to improving the integrity of the asylum system. It would assist in creating a system that is both fairer and more efficient by eliminating the operational inefficiencies caused by this requirement. It would also benefit protected persons who are unable to apply for permanent residence promptly due to an inability to pay the associated fees or for other legitimate reasons. This proposed amendment would thus facilitate access to permanent resident status, and, in turn, support the full integration of protected persons into Canadian society and reinforce Canada’s international obligations to refugees.

Finally, the proposed consequential amendments are required to ensure that the Regulations correspond to the IRPA. These amendments are proposed for purposes of clarity and concurrence.

Description

It is proposed that the following amendments be made to the Regulations:

1. Specify “the criteria to be considered when an exemption is made” to the one-year bar on PRRA

While the authority to make exemptions to the one-year bar on PRRA has been established in the Balanced Refugee Reform Act, it is proposed that the Regulations clarify the parameters of risk that the Minister would have to consider in making an exemption to the one-year bar on PRRA. The Regulations would clarify that the Minister, when making an exemption pursuant to subsection 112(2.1) of the IRPA, must consider risks that are within the meaning of sections 96 and 97 of the IRPA.

For clarification, relevant changes in country conditions might include, but are not limited to,

  • new laws, policies or practices that target a specific population and may amount to persecution of that population;
  • changes in laws, policies, practices or government that indicate government sanction of persecution of certain groups; or
  • failure to protect certain groups from persecution that indicates that there are substantial grounds to believe that a danger of torture exists, or that indicates a risk of cruel and unusual treatment or punishment or risk to life that is not generalized.

2. Remove requirement for successful asylum claimants to apply for permanent residence within 180 days of the IRB determination on their claim

It is proposed that subsection 175(1) be repealed from the Regulations. This would mean that successful asylum claimants would not be limited in time to apply for permanent resident status. For those unable to apply within 180 days of the IRB determination on their claim, they would be able to apply for permanent residence after that deadline without having to do so by applying for an exemption under H&C grounds.

Consequentially, the following provisions would also need to be amended in order to remove cross-references to subsection 175(1):

  • Subsection 11(3)
  • Paragraph 232(d)
  • Paragraph 301(1)(b)
  • Subsection 347(2)

3. Consequential amendments — Related medical examination requirement

Consequential amendments to the Regulations are required due to changes made to the Act by the Balanced Refugee Reform Act. Section 2 of the Balanced Refugee Reform Act amended paragraph 16(2)(b) of the IRPA to read: “subject to the regulations, the foreign national must submit to a medical examination.” The corresponding Regulations currently state which foreign nationals must submit to a medical examination, as well as those who are exempt. As the general rule in the IRPA has changed and now requires that all persons must submit to a medical examination, it is proposed that section 30 of the Regulations be amended to provide only for a list of persons who are exempt from the medical examination. It is important to note that the intention of this proposed amendment is not to change the policy and practice related to medical examinations.

Other technical amendments to the Regulations are required to ensure coherence between the IRPA and Regulations and address problems of cross-reference that would be created due to the proposed change to section 30 of the Regulations discussed above.

Regulatory and non-regulatory options considered

Though not necessary for the functioning of the ministerial authority to make exemptions to the one-year bar on PRRA, the proposed Regulations would provide for greater clarity and transparency in the policy, while helping to ensure consistency in its application. The factors to be considered by the Minister when making an exemption could be established as a matter of policy; however, this would be a less transparent option. Furthermore, subsection 112(2.3), as created by the Balanced Refugee Reform Act, specifically provides that the Regulations may include provisions establishing the criteria to be considered when an exemption is made.

With regards to the proposed repeal of subsection 175(1), the current practice for protected persons who have missed the 180-day filing deadline to apply for an exemption based on H&C grounds was intended only as a temporary measure. It is not efficient to have protected persons submit multiple applications for permanent residence. This non-regulatory option has been especially problematic in light of efforts under the Balanced Refugee Reform Act to streamline the asylum system and increase efficiency. It is anticipated that the proposed amendment would best alleviate the problems caused by this requirement.

Benefits and costs

Costs associated with the proposed amendment to introduce exemption criteria for the one-year bar on PRRA would exist irrespective of the proposed amendments, as they are associated with the legislative provisions enacted by the Balanced Refugee Reform Act. This includes a cost of $650,000 per year to establish and maintain a country assessment team for the purpose of identifying exemptions to the one-year bar on PRRA, as well as for supporting, reviewing and making recommendations during the Designated Countries of Origin designation process. Costs associated with this policy would also include human resources for participation in the interdepartmental working group, which would be absorbed within existing departmental budgets. These costs would be incurred with or without the proposed Regulations. Conversely, failed asylum claimants would generally benefit from the proposed clarification of criteria for exemption to the one-year bar on PRRA as this would provide for greater policy transparency.

The proposed repeal of subsection 175(1) of the Regulations would benefit the integrity of Canada’s asylum system by eliminating administrative inefficiencies. The requirement to submit a second application requesting an exemption from the 180-day filing deadline would be eliminated for protected persons who file outside of this deadline. This would result in reduced costs in terms of time required for application processing. These cost savings would, however, be minimal and would be absorbed into the existing operational workload. There would be no loss in terms of application fees collected by CIC, as all protected persons who apply for permanent residence, whether within or after the 180-day filing deadline, are required to pay only one processing fee. It is possible that some protected persons who have not applied for permanent residence but have been in Canada for several years may decide to apply if this amendment is made; however, the cost of processing these applications would be balanced by the cost-recovery fees that these applicants would have to pay. It is not anticipated that this population would be very large. Qualitatively, the proposed repeal of subsection 175(1) would also have a positive impact on protected persons who wish to apply for permanent residence. While this amendment would affect a relatively small population, it is an important measure to eliminate the confusion and uncertainty caused by the current requirement to apply for permanent residence within 180 days.

The only benefits associated with the consequential amendments are qualitative, in that they would bring greater clarity to the legislative framework surrounding medical examinations.

Consultation

Before the Balanced Refugee Reform Act received Royal Assent, some stakeholders claimed that the one-year bar on PRRA could allow persons to be removed to face persecution or torture. The provision to exempt failed claimants from the one-year bar provided in the IRPA is specifically intended to mitigate these risks. In addition, the Regulations would further alleviate these concerns by clarifying the policy and criteria surrounding ministerial exemptions.

While stakeholders, such as the Canadian Council for Refugees (CCR), have general reservations about the one-year bar, they have expressed support for the provision allowing for exemptions. In its original submission dated May 5, 2010, the CCR opines that “[s]ince most refused claimants will have had a recent opportunity to submit new evidence at the RAD, it is reasonable to suppose that another opportunity is not generally necessary. The bill rightly recognizes that there will however be exceptions, by giving the Minister the power to designate nationalities or groups that will have access to PRRA (presumably due to important changes in the country of origin, although the bill does not specify this).”

It is anticipated that the repeal of subsection 175(1) would be well-received by refugee stakeholders. For instance, scholars have noted that the 180-day window is arbitrary and “unnecessarily brief,” that refugees may miss the 180-day timeframe for a number of reasons, and that the H&C solution is not adequate, as it further lengthens and complicates the process. (see footnote 3)

Governmental partners such as the CBSA and the IRB have been consulted in regard to all proposed amendments, but no substantive comments were made.

Implementation, enforcement and service standards

Implementation of the policy on exemptions to the one-year bar on PRRA must be pursued with or without the proposed Regulations, as the procedure is primarily contained in legislation. As such, implementation of the proposed Regulations would be pursued as part of the overall implementation strategy for the Balanced Refugee Reform Act.

An interdepartmental working group will be established to provide information and advice on changes in country conditions that could merit an exemption from the one-year bar on PRRA. Recommendations from the working group would be based on information indicating that changes in a country might present risks related to sections 96 and 97 of the Act. A country assessment team will also be staffed and trained. This team will be established within CIC to monitor and review changes in country conditions for both this policy and the Designated Countries of Origin policy.

For all exemptions, a public statement would be released by CIC, and the notice would be disseminated to all CIC and CBSA offices. Nationals, former habitual residents, or classes of nationals from designated countries would be offered the opportunity to make a PRRA application when called for a pre-removal interview with a CBSA officer if the exemption decision was made after their last IRB hearing. (see footnote 4) The provision of access to a PRRA would neither assume that the person would be subject to risks if removed, nor guarantee that the person would not be removed after a PRRA. A successful PRRA, however, generally results in protected person’s status.

Performance measurement and evaluation

It is anticipated that the proposed Regulations relating to the exemption process for the one-year bar on PRRA would result in a more transparent policy, and that the repeal of subsection 175(1) would result in administrative efficiencies contributing to the overall efficiency of Canada’s asylum system.

Work is currently underway on indicators against which the overall reforms to the asylum system will be measured. Three years after implementation of the new asylum system under the Balanced Refugee Reform Act, an evaluation of the new system will be carried out. The evaluation will be coordinated by CIC and will involve all partners implicated in the implementation of the Balanced Refugee Reform Act. It would include a review of the elements of the new system impacted by the proposed Regulations.

Contact

Jennifer Irish
Director
Asylum Policy and Programs
Refugee Affairs Branch
Citizenship and Immigration Canada
365 Laurier Avenue W
Ottawa, Ontario
K1A 1L1
Email: Jennifer.Irish@cic.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 5(1), sections 17, 26 (see footnote a), 43 and 89, subsection 112(2.3) (see footnote b) and sections 116, 150 and 201 of the Immigration and Refugee Protection Act (see footnote c), proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Jennifer Irish, Director, Asylum Policy and Program Development, Department of Citizenship and Immigration, Jean Edmonds South Tower, 17th Floor, 365 Laurier Avenue West, Ottawa, Ontario K1A 1L1 (tel.: 613-941-8331; fax: 613-941-6413; email: Jennifer.Irish@cic.gc.ca).

Ottawa, June 23, 2011

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE IMMIGRATION
AND REFUGEE PROTECTION REGULATIONS

AMENDMENTS

1. Paragraph (a) of the definition “excessive demand” in subsection 1(1) of the Immigration and Refugee Protection Regulations (see footnote 5) is replaced by the following:

  • (a) a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required under paragraph 16(2)(b) of the Act, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years; or

2. Subsection 11(3) of the Regulations is replaced by the following:

Applications to remain in Canada as permanent residents

(3) An application to remain in Canada as a permanent resident as a member of one of the classes referred to in section 65 or subsection 72(2), and an application to remain in Canada under subsection 21(2) of the Act, must be made to the Department’s Case Processing Centre in Canada that serves the applicant’s place of habitual residence.

3. Section 30 of the Regulations is replaced by the following:

Exemptions from medical examination requirement

30. (1) For the purposes of paragraph 16(2)(b) of the Act, the following foreign nationals are exempt from the requirement to submit to a medical examination:

  • (a) foreign nationals other than
    • (i) subject to paragraph (g), foreign nationals who are applying for a permanent resident visa or applying to remain in Canada as a permanent resident, as well as their family members, whether accompanying or not,
    • (ii) foreign nationals who are seeking to work in Canada in an occupation in which the protection of public health is essential,
    • (iii) foreign nationals who
      • (A) are seeking to enter Canada or applying for renewal of their work or study permit or authorization to remain in Canada as a temporary resident for a period in excess of six consecutive months, including an actual or proposed period of absence from Canada of less than 14 days, and
      • (B) have resided or stayed for a period of six consecutive months, at any time during the one-year period immediately preceding the date that they sought entry or made their application, in an area that the Minister determines, after consultation with the Minister of Health, has a higher incidence of serious communicable disease than Canada,
    • (iv) foreign nationals who an officer, or the Immigration Division, has reasonable grounds to believe are inadmissible under subsection 38(1) of the Act,
    • (v) foreign nationals who claim refugee protection in Canada, and
    • (vi) foreign nationals who are seeking to enter or remain in Canada and who may apply to the Minister for protection under subsection 112(1) of the Act, other than foreign nationals who have not left Canada since their claim for refugee protection or application for protection was rejected;
  • (b) a person described in paragraph 186(b) who is entering or is in Canada to carry out official duties, unless they seek to engage or continue in secondary employment in Canada;
  • (c) a family member of a person described in paragraph 186(b), unless that family member seeks to engage or continue in employment in Canada;
  • (d) a member of the armed forces of a country that is a designated state as defined in the Visiting Forces Act, who is entering or is in Canada to carry out official duties, other than a person who has been designated as a civilian component of those armed forces, unless that member seeks to engage or continue in secondary employment in Canada;
  • (e) a family member of a protected person, if the family member is not included in the protected person’s application to remain in Canada as a permanent resident;
  • (f) a non-accompanying family member of a foreign national who has applied for refugee protection outside Canada; and
  • (g) a foreign national who has applied for permanent resident status and is a member of the live-in caregiver class.

Subsequent examination

(2) Every foreign national who has undergone a medical examination as required under paragraph 16(2)(b) of the Act must submit to a new medical examination before entering Canada if, after being authorized to enter and remain in Canada, they have resided or stayed for a total period in excess of six months in an area that the Minister determines, after consultation with the Minister of Health, has a higher incidence of serious communicable disease than Canada.

Medical certificate

(3) Every foreign national who must submit to a medical examination, as required under paragraph 16(2)(b) of the Act, and who seeks to enter Canada must hold a medical certificate — based on the most recent medical examination to which they were required to submit under that paragraph and which took place within the previous 12 months — that indicates that their health condition is not likely to be a danger to public health or public safety and, unless subsection 38(2) of the Act applies, is not reasonably expected to cause excessive demand.

4. The portion of section 32 of the Regulations before paragraph ( a ) is replaced by the following:

Conditions

32. In addition to the conditions that are imposed on a foreign national who makes an application as a member of a class, an officer may impose, vary or cancel the following conditions in respect of any foreign national who is required to submit to a medical examination under paragraph 16(2)(b) of the Act:

5. Subparagraph 65.1(1)(d)(ii) of the Regulations is replaced by the following:

  • (ii) a medical certificate — based on the most recent medical examination to which they were required to submit under paragraph 16(2)(b) of the Act and which took place within the previous 12 months — that indicates that their health condition is not likely to be a danger to public health or public safety and is not reasonably expected to cause excessive demand; and

6. Subparagraph 72(1)(e)(iii) of the Regulations is replaced by the following:

  • (iii) they hold a medical certificate — based on the most recent medical examination to which they were required to submit under paragraph 16(2)(b) of the Act and which took place within the previous 12 months — that indicates that their health condition is not likely to be a danger to public health or public safety and, unless subsection 38(2) of the Act applies, is not reasonably expected to cause excessive demand; and

7. The Regulations are amended by adding the following after section 160:

Criterion — exemption from application of paragraph 112(2)(b.1) of the Act

160.1 For the purposes of subsection 112(2.1) of the Act, the Minister must consider, when an exemption is made, any event having arisen in a country that could place all or some of its nationals or former habitual residents referred to in that subsection in a situation similar to those referred to in section 96 or 97 of the Act for which a person may be determined to be a Convention refugee or a person in need of protection.

8. Subsections 175(1) and (2) of the Regulations are replaced by the following:

Judicial review

175. (1) For the purposes of subsection 21(2) of the Act, an officer shall not be satisfied that an applicant meets the conditions of that subsection if the determination or decision is subject to judicial review or if the time limit for commencing judicial review has not elapsed.

9. Paragraph 179(f) of the Regulations is replaced by the following:

  • (f) meets the requirements of subsections 30(2) and (3), if they must submit to a medical examination under paragraph 16(2)(b) of the Act.

10. Paragraph 200(1)(e) of the Regulations is replaced by the following:

  • (e) the requirements of subsections 30(2) and (3) are met, if they must submit to a medical examination under paragraph 16(2)(b) of the Act.

11. Paragraph 216(1)(d) of the Regulations is replaced by the following:

  • (d) meets the requirements of subsections 30(2) and (3), if they must submit to a medical examination under paragraph 16(2)(b) of the Act;

12. Paragraph 232(d) of the Regulations is repealed.

13. Subsection 263(3) of the Regulations is replaced by the following:

Arranging medical examination

(3) A transporter must arrange for the medical examination of the foreign national required under paragraph 16(2)(b) of the Act and must arrange for medical treatment and observation if such conditions are imposed on the foreign national under section 32.

14. (1) Subparagraph 289(b)(iii) of the Regulations is replaced by the following:

(2) Subparagraph 289(c)(ii) of the Regulations is replaced by the following:

15. The portion of paragraph 301(1)(b) of the Regulations before subparagraph (i) is replaced by the following:

  • (b) if the application is made by a person as a member of the live-in caregiver class or as a protected person referred to in subsection 21(2) of the Act

16. Subsection 347(2) of the Regulations is replaced by the following:

Application for landing — undocumented Convention refugee in Canada class

(2) If landing was not granted before June 28, 2002, an application for landing as a member of the undocumented Convention refugee in Canada class is an application to remain in Canada as a permanent resident under subsection 21(2) of the Immigration and Refugee Protection Act.

17. Section 354 of the Regulations is replaced by the following:

Requirements not applicable

354. 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(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.

COMING INTO FORCE

18. These Regulations come into force on the day on which section 2 of the Balanced Refugee Reform Act , chapter 8 of the Statutes of Canada, 2010, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

[27-1-o]

Footnote 1
Sections 96 and 97 of the IRPA are provided below:

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.

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.

Footnote 2
This filing deadline also applies to the small number of persons granted protected persons status following a Pre-Removal Risk Assessment.

Footnote 3
Andrea Bradley, “Beyond Borders: Cosmopolitanism and Family Reunification for Refugees in Canada” (2010), Vol. 22, Issue 3, International Journal of Refugee Law, p. 379.

Footnote 4
As it is provided for in subsection 112(2.2) of the Act, “. . . [a]n 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.”

Footnote 5
SOR/2002-227

Footnote a
S.C. 2010, c. 8, s. 6

Footnote b
S.C. 2010, c. 8, s. 15(4)

Footnote c
S.C. 2001, c. 27