Vol. 149, No. 25 — June 20, 2015

Regulations Amending the Immigration and Refugee Protection Regulations

Statutory authority

Immigration and Refugee Protection Act

Sponsoring department and agency

Department of Citizenship and Immigration and Canada Border Services Agency

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Ministerial relief

Foreign nationals who are believed to be or found to be inadmissible under the Immigration and Refugee Protection Act (IRPA) on the basis of security, certain human or international rights violations or organized crime may be accorded a declaration of relief by the Minister of Public Safety and Emergency Preparedness (the Minister) under subsection 42.1(1) of the IRPA (Ministerial relief) if they satisfy the Minister that doing so would not be contrary to the national interest. Upon being granted relief by the Minister, the matters which had led to a finding of inadmissibility under the above-listed provisions no longer constitute inadmissibility. A person who has been granted relief may then make applications for temporary or permanent resident status without the applications being rejected on the basis of the grounds of inadmissibility for which relief was granted.

A number of issues have contributed to inefficiencies in terms of processing requests for Ministerial relief. These include the lack of a formalized application process, the inability to close applications as appropriate in the absence of a declaration by the Minister, and voluminous applicant submissions of varying degrees of relevance to the ministerial decision-making process. Currently, there is no standardized application form and applicants may seek Ministerial relief at any time. For instance, applicants may simply indicate that they wish to be considered for Ministerial relief, providing little or no supporting explanation or documentation. This means that resources are allocated to processing applications from individuals who may not be found inadmissible and thereby not require Ministerial relief (e.g. they have been granted permanent resident status). Until recently, approximately 50% of the inventory of applications comprised cases pending a final decision on inadmissibility. This has contributed to a significant backlog of cases, all of which must be personally decided upon by the Minister.

End of examination

Subsection 15(1) of the IRPA authorizes an officer to proceed with an examination when a person makes an application. Section 28 of the Immigration and Refugee Protection Regulations (IRPR) defines four ways to make an application: (a) submitting an application in writing; (b) seeking to enter Canada; (c) seeking to transit through Canada; and (d) making a claim for refugee protection. While section 37 of the IRPR defines the end of the examination for a person seeking to enter or transit through Canada, it does not define the end of examination period for those making a claim for refugee protection. As a result, there is ambiguity concerning at which point a claimant for refugee protection ceases to be subject to an examination. The lack of clarity with respect to officers’ authorities could lead to persons refusing officers’ directions to provide additional information relevant to their refugee claims.

Background

Legislative and regulatory framework

The IRPA governs Canada’s admissibility determination regime, including provisions for Ministerial relief. The IRPR are made under the authority of the IRPA. The IRPA provisions regarding examinations and refugee claims are supported by the IRPR. Conversely, there are currently no regulations with respect to applications for Ministerial relief, and no structure applicable to the form or content of applications. The Faster Removal of Foreign Criminals Act (Bill C-43) came into force in June 2013. Among other things, Bill C-43 amended the IRPA to clarify that Ministerial relief may be considered via an application.

Ministerial relief

Individuals typically request Ministerial relief by providing documentary submissions to Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency (CBSA). The submissions are sent to the CBSA for processing. The Ministerial relief process is guided by standards of procedural fairness, case law, and internal policies and procedures. The CBSA assesses requests for Ministerial relief and develops a recommendation for the Minister. There have never been restrictions on the type of submissions that may or should accompany a request for Ministerial relief. This has led to lengthy submissions with varying degrees of relevance to the test applied to Ministerial relief applications. All information and all arguments presented by the applicants are considered and incorporated into the review and decision-making process.

There is currently no formal criterion establishing when a person may apply for Ministerial relief. Previously, CIC officers were directed to refer a person for consideration for Ministerial relief and to await the outcome of the Ministerial relief process prior to rejecting their immigration application (e.g. temporary or permanent resident application) or prior to allegations of inadmissibility being referred to the Immigration and Refugee Board of Canada (IRB) for determination. As a result, the current Ministerial relief inventory includes applications from individuals who have yet to receive a final decision on admissibility.

The policy to hold immigration applications in abeyance pending the outcome of consideration under Ministerial relief has, however, been rescinded. Accordingly, applications for Ministerial relief are no longer required to be considered prior to rendering a determination on inadmissibility. Instead, the processing of immigration applications continues through to completion regardless of whether a request for Ministerial relief is outstanding. Nevertheless, persons may submit applications for Ministerial relief whenever they wish, which in turn contributes to inventory growth as the inventory of applications includes those who may not be inadmissible. This may include, for instance, cases where a person was subsequently granted permanent resident status, a finding of inadmissibility has yet to be made, or where a finding of inadmissibility has been set aside on judicial review by the Federal Court. Presently, there is no provision allowing for these applications to be closed without them being processed to completion.

End of examination

Individuals who make applications under the IRPA are subject to an examination for various reasons, including to determine whether that person has a right to enter Canada or may become authorized to enter or remain in Canada. As part of an examination, they are required to appear before an officer, answer all questions truthfully, and produce any documents an officer considers necessary. The ability to interview the claimant at any time up to the final disposition of the claim is required to ensure that officers of either CIC or the CBSA have an opportunity to verify information and undertake further investigative action as the circumstances demand.

Objectives

Ministerial relief

The proposed Regulations will bring greater clarity, consistency and efficiency to the application process. These proposed Regulations are intended to govern the overall application process only, and are not intended to affect decision-making factors.

The proposed regulatory amendments would create new regulatory provisions specifically related to processing applications for Ministerial relief that would

End of examination

By specifying that a refugee claimant remains under examination until a final determination with respect to the claim is made, the proposed amendment is meant to clarify a regulation that, in its present form, remains open to different interpretations. During this time, officers of either CIC or the CBSA will be able to question the refugee claimant for the purposes of the examination and require the claimant to produce all relevant evidence and documents that the officer reasonably requires, as new information or evidence becomes available while the claim is in process.

Description

Ministerial relief
Proposed Regulations
(1) Establish when a foreign national may submit an application

The proposed Regulations would provide that a foreign national may apply for Ministerial relief only after inadmissibility on the relevant IRPA grounds has been determined and all rights of judicial review have been exhausted or expired. Inadmissibility is established when the person has been refused an immigration application (i.e. temporary or permanent resident application), or when a removal order has been made against them.

(2) Prescribe the use of a specific application form and set out the information that is required to be included in the application

The proposed Regulations would provide that an application for Ministerial relief must be made using the form provided by the CBSA.

The application must include all information and documents required by the Regulations, as well as any other evidence required by the IRPA. The precise requirements provided in the proposed Regulations include the following:

(3) Provide for the return of an application, unprocessed

Under the proposed Regulations, the application and all supporting documents would be returned to the applicant, unprocessed, if the application does not meet the prescribed requirements.

(4) Provide for the closing of applications

The proposed Regulations would provide for the closing of applications under certain conditions. First, an application may be closed if the person has, since submitting their application for Ministerial relief, been granted permanent resident status. Second, if, following an attempt to contact an applicant, no response to the CBSA’s correspondence is received within 60 days, the CBSA may send a notice to the applicant. If the applicant does not reply to the notice within another 60 days, the application will be closed.

(5) Updated address and contact information

The proposed Regulations would clearly state that the onus is on the applicant to continually ensure that the Minister has valid contact information.

(6) Transitional provisions

Transitional provisions would be enacted to provide clarity to how the proposed Regulations would apply to applications that were made prior to the coming into force of the proposed Regulations. The requirement to apply using the form provided by the CBSA and the requirement that applicants already have a finding of admissibility against them before being considered for Ministerial relief will not apply to applications received prior to the coming into force of the proposed Regulations. However, the provisions relating to the closing of applications and the requirement to provide the Minister with up-to-date address and contact information would apply to all cases.

End of examination
Proposed Regulations

The proposed Regulations would amend the IRPR to note that the examination for a person who makes a claim for refugee protection ends when the later of the following two events occurs: a final determination is made in respect of their refugee claim, or a decision in respect of the person is made under subsection 44(2) of the IRPA and, in the case of a claim made at a port of entry, the person leaves the port of entry. This proposed amendment would clarify and define the end of an examination for individuals who make a claim for refugee protection at a port of entry or an inland office.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal as it applies only to individuals, not businesses.

Small business lens

The small business lens does not apply to this proposal, as it applies only to individuals, not businesses.

Consultation

On July 11, 2014, the following stakeholders were notified that consideration was being given to these proposed regulatory amendments:

Ministerial relief

Preliminary stakeholder consultation on the proposed Regulations took place in July and August 2014. Eleven stakeholders were consulted. Three stakeholders responded with comments, and one stakeholder responded that their comments would be sent during the prepublication stage. There was no response from the remaining identified stakeholders.

Among the stakeholders who responded, reaction was mixed, depending on the specific proposal. For instance, most stakeholders agreed that there are opportunities to improve the Ministerial relief application process. There was also general agreement that published guidelines to support the Regulations and a new standardized application form would be beneficial. There were a range of views, however, on the content of the application form and the degree to which it should contain mandatory versus recommended information requirements.

Some stakeholders were critical of the proposal to allow applications for Ministerial relief only if a foreign national has had a finding of inadmissibility. For instance, comparisons were made to temporary resident permits, which do not have such a requirement for a finding of inadmissibility. Moreover, it was suggested that Ministerial relief applications made in Canada should be accompanied by a regulatory stay of removal. However, these proposed Regulations are integral to application inventory management and the efficiency of the processing of Ministerial relief applications. In addition, the proposed Regulations do not affect a foreign national’s ability to apply for a temporary resident permit. Moreover, in the event that a person with an outstanding application for Ministerial relief has initiated litigation at the Federal Court with respect to a decision rendered under the IRPA, the person may seek a stay of removal pending the outcome of a Ministerial relief application made in Canada. Finally, a number of comments related to decision making by the Minister were provided. However, this issue is beyond the scope of the proposed regulatory amendments. Accordingly, no changes were made in these areas.

Changes were, however, made in other areas in response to the feedback provided. For instance, some stakeholders recommended extending the period within which an applicant must respond to a notice prior to the closing of an application from 30 days to 90 days. In response, the time frame to respond to such a notice was extended from 30 days to 60 days. The proposed Regulations are designed to provide the applicant with sufficient opportunity to respond prior to an application being closed.

End of examination

Preliminary stakeholder consultation on the proposed Regulations took place from July to August 2014. Twelve stakeholders were consulted. Three stakeholders responded with comments, and one stakeholder responded to inform that their comments would be sent during the prepublication stage. There was no response from the remaining identified stakeholders.

The stakeholders who responded with comments opposed the proposed amendment declaring that the examination period for a refugee claim ends upon final determination by the RPD or the RAD. Their opposition was mainly founded on the concern that the Regulations would contemplate the possibility of a refugee claimant being required to answer questions while a refugee protection hearing is underway. In response to this concern, operational guidelines will be developed to indicate that refugee claimants should not be subject to examination while a hearing is in process.

Rationale

Ministerial relief

The proposed Regulations are intended to result in a more efficient, consistent, and transparent Ministerial relief application process. As envisioned, this new process is expected to support faster and more informed decision-making, while reducing the resource burden created by inventory backlogs. From the applicant’s perspective, greater efficiency in the application process will mean faster decisions, which will reduce uncertainty about their prospects of obtaining status in Canada. Greater transparency, moreover, will support the ongoing maintenance of a fair and effective application process.

The proposed regulatory amendments would introduce structure into the Ministerial relief application process, ensuring that any applications for Ministerial relief will be based on finalized inadmissibility determinations on security grounds, certain human or international rights violations, or organized crime. This will ensure that the Minister’s decision on whether or not to grant relief, and the expenditure of significant resources necessary to conduct the related assessment, is with respect to a final decision relating to the applicant’s inadmissibility.

This requirement would ensure that resources are focused on inadmissible clientele and not used to process applications where inadmissibility decisions are later set aside on judicial review or where there is not yet a determination on an allegation of inadmissibility. It would also contribute to effective decision making as it would ensure that the Minister’s decision is with respect to a finding of inadmissibility that has withstood any applicable judicial review. If applicants seek judicial review of the inadmissibility decision, then the judicial review process must be completed before the application will be accepted.

The authority to close applications would ensure that Agency resources are used more efficiently, focusing on active applications. A better use of available resources is expected to have a positive impact on backlog reduction given the length of time that some cases have been in the inventory with no client contact. Efforts would be made to contact applicants in the inventory twice (the original request for information, followed by the notice, each of which provide a 60-day response period). Responses indicating the applicant’s further interest in obtaining relief would always result in the case continuing to be processed. Furthermore, individuals whose applications are not considered further under this provision could still choose to re-apply at a later date, albeit subject to the rules in force at that time.

End of examination

The ambiguity arising from a lack of specific language indicating when the examination of a refugee claimant ends invites differing conclusions on the scope of the Minister’s authority to require a refugee claimant to answer questions on matters relating to the refugee claim. The proposed Regulations will bring greater clarity and precision to both CIC and the CBSA’s authority to examine persons who have submitted an application for refugee protection, by clarifying that a refugee claimant’s examination ends when the later of the following occurs: a final determination is made in respect of their refugee claim and a decision in respect of the person is made under subsection 44(2) of the IRPA, or, in the case of a claim made at a port of entry, the person leaves the port of entry. Guidelines will articulate what constitutes final determination, and other pertinent details relating to implementation.

Qualitative costs and benefits
Ministerial relief

Canadians are not subject to the admissibility provisions in the IRPA. By not being inadmissible, they also cannot benefit from Ministerial relief. The proposed regulatory amendments would, as a result, not result in any direct costs to Canadians.

The CBSA would incur minor costs associated with the publication of an operational bulletin describing the changes arising from the Regulations, as well as Agency training. As the proposed regulatory changes only address the application process (as opposed to the analysis and recommendation-issuing processes), the necessary training is expected to be simple and straightforward.

Costs directly related to the enforcement of the Regulations would similarly be minimal. The CBSA will see new costs related to determining whether or not applications for Ministerial relief comply with the Regulations. The applications that do not comply would be returned to the applicants, who would be able to re-apply once the issue had been addressed. Returning applications that do not meet the criteria established in the Regulations would mean that the subsequent costs associated with unnecessarily preparing a recommendation for the Minister will be avoided.

Direct costs to Government associated with implementing the regulatory amendments would be approximately $189 per application. This includes costs associated with triaging applications and verifying their compliance, in line with the proposed Regulations. Projections for the intake of applications for Ministerial relief are set at approximately 20 per year. Accordingly, the annual implementation cost is projected to be approximately $3,780. As the Ministerial relief application process is open only to inadmissible foreign nationals, there would be no costs to business.

The implementation cost, however, is expected to be more than offset by associated savings. The average cost of processing a recommendation on a Ministerial relief application is within the range of $27,608 to $29,224 per year per case. One application returned for non-compliance with the proposed regulatory amendments or otherwise closed could therefore result in savings of approximately $25,444 per year (i.e. $29,224 − $3,780). Assuming the applicant does not immediately re-apply with a valid application that meets the prescribed requirements, one returned application could more than offset the annual direct costs associated with implementing the new proposed regulatory amendments.

End of examination

The proposed regulatory amendments would not impose any additional undertakings or new lines of business upon the Government of Canada. Instead, they seek to address an ambiguity and clarify the period of time during which an officer is authorized to question a refugee claimant for information relating to an ongoing refugee claim. The Regulations would not directly impact consumers, Canadian business, or Canadians, so would not result in any additional costs.

Implementation, enforcement and service standards

Ministerial relief

To support implementation of these proposed Regulations, implementation guidelines will be developed and published as the Regulations come into force. In addition, a specific Ministerial relief application form will be published and available online.

Generally, the form and content specifications will align with those that already apply to other applications pursuant to the Regulations in accordance with section 10 of the IRPR. In addition to mandatory fields that the applicant would be required to complete in order for the application to be processed, the form will include non-mandatory questions targeted at obtaining information that would assist the CBSA in assessing certain national security and public safety considerations related to the national interest.

The application form would also be accompanied by guidelines that would indicate the type of information that is recommended be included for the application to be processed. While each case will be assessed on its own merits, and applicants would not be restricted in terms of the amount or content of their accompanying submissions, the nature of the information requested would be the same for all applicants, which will provide for greater consistency, efficiency and transparency. This standardized approach will help the applicant and the CBSA ensure that efforts are focused on submissions that present the Minister with the information necessary for informed decision making.

If an application is returned, the applicant would be informed that the application has not been accepted for processing because of a specific type of non-compliance (e.g. incomplete application form or inadmissibility has not yet been established). The applicant would then have sufficient information to take corrective measures (e.g. submit a new application that includes the missing information or wait for an inadmissibility decision before submitting an application). Applications that have been returned unprocessed would not be considered part of the active inventory. Any future submissions, if accompanied by a properly completed Ministerial relief application form, would be considered “new applications” and, in accordance with procedures at the time, constitute a new file that would be placed in the queue for processing.

End of examination

To support implementation of these proposed Regulations, implementation guidelines will be developed and published as the Regulations come into force. They will take a form similar to the existing immigration operational manuals (http://www.cic.gc.ca/english/resources/manuals/), which include, for instance, guidance on how to apply the provisions of the Regulations related to the end of examination for port of entry cases.

As envisioned to be articulated within the guidelines, the phrase “final determination” is meant to capture when a final decision is rendered by the Refugee Protection Division (RPD), or, in the case of an appeal, a final decision from the Refugee Appeal Division (RAD) of the IRB. Similarly, a finding that a claim is ineligible for referral to the RPD will also be considered a final determination on the claim.

If an individual challenges a negative refugee decision and a case is referred back for a redetermination by the Federal Court, the Federal Court of Appeal or the Supreme Court of Canada, then the individual would again be under examination while the claim is being redetermined. For greater clarification, this specific provision would not extend to a claimant with a case before the courts. Additionally, this amendment would not provide the Minister any additional examination power to advance an application for cessation or vacation of refugee protection.

Contact

Richard St Marseille
Manager
Immigration Enforcement Policy Unit
Canada Border Services Agency
100 Metcalfe Street, 10th Floor
Ottawa, Ontario
K1A 0L8
Telephone: 613-954-3923

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 5(1) and sections 17 and 43 of the Immigration and Refugee Protection Act (see footnote a), 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 Richard St Marseille, Manager, Immigration Enforcement Policy Unit, Canada Border Services Agency, 100 Metcalfe Street, Ottawa, Ontario K1A 0L8 (tel.: 613-954-3923; fax: 613-946-5983; email: Richard.StMarseille@cbsa-asfc.gc.ca).

Ottawa, June 11, 2015

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

AMENDMENTS

1. Paragraph 10(1)(a) of the Immigration and Refugee Protection Regulations (see footnote 1) is replaced by the following:

2. The Regulations are amended by adding the following before section 14:

DIVISION 1

DETERMINATION OF INADMISSIBILITY

3. The Regulations are amended by adding the following after section 24:

DIVISION 2

APPLICATION FOR DECLARATION OF RELIEF UNDER SUBSECTION 42.1(1) OF THE ACT

Application

24.1 (1) A foreign national may apply for a declaration of relief under subsection 42.1(1) of the Act if

Judicial review

(2) However, if the foreign national has filed an application for leave to commence an application for judicial review in accordance with section 72 of the Act with respect to a decision or removal order referred to in subsection (1), the foreign national may only make an application under subsection (1) after the earliest of the following:

Required information

24.2 (1) An application referred to in subsection 24.1(1) must include the following information in respect of the applicant:

Non-application of paragraphs 10(2)(b) and (c)

(2) Paragraphs 10(2)(b) and (c) do not apply to an application referred to in subsection 24.1(1).

Return of application

24.3 If the requirements of sections 24.1 and 24.2 are not met, the application and all documents submitted in support of it are returned to the applicant.

Closing of file

24.4 The processing of the application is discontinued and the applicant’s file is closed if

Change in information

24.5 The applicant must notify the Minister without delay of any change in their address, telephone number or email address or the address, telephone number or email address of their representative.

4. (1)The portion of section 37 of the Regulations before paragraph (a) is replaced by the following:

End of examination

37. Subject to subsection (2), the examination of a person who seeks to enter Canada, or who makes an application to transit through Canada, ends only when

(2) Section 37 of the Regulations is renumbered as subsection 37(1) and is amended by adding the following after subsection (1):

End of examination — claim for refugee protection

(2) The examination of a person who makes a claim for refugee protection at a port of entry or inside Canada other than at a port of entry ends when the later of the following occurs:

TRANSITIONAL PROVISIONS

5. (1)Division 2 of Part 3 of the Immigration and Refugee Protection Regulations — other than sections 24.1 to 24.3 — apply to applications that were made under subsection 42.1(1) of the Immigration and Refugee Protection Act before the coming into force of these Regulations.

(2) Sections 24.4 and 24.5 of the Immigration and Refugee Protection Regulations apply, with any necessary modifications, to any requests that were submitted to the Minister in respect of the exception described in subsection 34(2) or 35(2) or paragraph 37(2)(a) of the Immigration and Refugee Protection Act, as they read before the coming into force of sections 13 to 15 and 18 of the Faster Removal of Foreign Criminals Act, chapter 16 of the Statutes of Canada, 2013.

COMING INTO FORCE

6. These Regulations come into force on the day on which they are registered.

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