ARCHIVED — Vol. 146, No. 17 — August 15, 2012

Registration

SI/2012-65 August 15, 2012

BALANCED REFUGEE REFORM ACT

Order Fixing August 15, 2012 as the Day on which Certain Sections of the Act Come into Force

P.C. 2012-999 July 26, 2012

His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 42(1) of the Balanced Refugee Reform Act, chapter 8 of the Statutes of Canada, 2010, fixes August 15, 2012 as the day on which section 2, subsection 15(4) and section 36 of that Act come into force.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

Pursuant to subsections 60(3), 68 and 69 of the Protecting Canada’s Immigration System Act (PCISA), assented to on June 28, 2012, and subsection 42(1) of the Balanced Refugee Reform Act (BRRA), assented to on June 29, 2010, that section 2 and 36 (as amended by the PCISA) and subsection 15(4) of the BRRA come into force on August 15, 2012.

Section 2 of the BRRA amends the medical examination requirement under paragraph 16(2)(b) of the Immigration and Refugee Protection Act (IRPA). Subsection 15(4) and section 36 of the BRRA amend access to pre-removal risk assessments (PRRAs) under section 112 of the IRPA.

Objective

To seek the approval of the Governor in Council to ensure that section 2, subsection 15(4) and section 36 of the BRRA come into force as soon as possible. These provisions require that foreign nationals submit to a medical examination in accordance with the regulations, provide exemptions to the restrictions on accessing a PRRA application for protection, and terminate pending PRRA applications made less than 12 months since the individual’s last risk assessment (either a negative refugee determination or negative PRRA decision).

To ensure concordance between IRPA and the Immigration and Refugee Protection Regulations (IRPR), a technical amendment is required to the legislation concerning medical examinations.

Restrictions on accessing the PRRA process are intended to expedite refugee claim processing and enable the faster removal of failed refugee claimants who have already had an unfavourable risk assessment at the Immigration and Refugee Board (IRB). BRRA exemptions to these restrictions were introduced to ensure failed claimants are not returned to a possible situation of harm that has arisen since their last refugee determination at the IRB. Terminating pending PRRA applications was intended to apply the one-year bar consistently to those who received a negative Refugee Protection Division (RPD) or PRRA decision before the coming into force of the new system, whether they had already submitted an application for a PRRA or not.

The authority to exempt certain claimants from restrictions on accessing the PRRA process ensures these claimants, who may be facing new risks following their final IRB decision, are afforded a risk assessment prior to being removed from Canada. The exemption provision safeguards against the risk of refoulement, which also complies with section 7 of the Canadian Charter of Rights and Freedoms and Canada’s international human rights obligations, including pursuant to the 1951 United Nations (UN) Convention on the Status of Refugees and its 1967 protocol. The principle of non-refoulement prohibits returning a person to a country where he or she is at risk of serious harm.

Background

In 2006, the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) determined that the legislative authority to make regulations concerning medical examinations under the IRPR was not clearly prescribed in the IRPA. Therefore, a technical legislative amendment is required to ensure concordance between the Act and the Regulations, by specifying that “subject to the regulations, foreign nationals must submit to a medical examination.”

Section 69 of the PCISA amended the BRRA to specify that the restrictions on accessing the PRRA process come into force upon Royal Assent of the bill. The coming into force provisions of the PCISA do not bring subsection 15(4) or section 36 of the BRRA into force at Royal Assent. An Order in Council (OIC) is therefore required to ensure that subsection 15(4) and section 36 of the BRRA (as amended by the PCISA) come into effect as soon as possible in order to avoid a significant period of time between the coming into force of the restrictions to accessing the PRRA process, the coming into force of the exemptions to these restrictions, and the authority to terminate pending applications.

Implications

The legislative amendment regarding medical examinations is technical in nature, and no impact on Citizenship and Immigration Canada (CIC) or its stakeholders is anticipated.

The restrictions on accessing the PRRA process came into force on June 28, 2012, when the Protecting Canada’s Immigration System Act received Royal Assent. There has been a period of time where the restrictions on accessing the PRRA process have been applied without the legislative ability to make exemptions. However, the impacts of this gap have been managed administratively, to ensure that no one who would have been exempted from the PRRA bar was removed from Canada during this period. Once the PRRA exemption comes into effect, these individuals will be invited to apply for a PRRA.

It should be noted that CIC issued an operational instruction at Royal Assent to CIC PRRA officers and Canada Border Services Agency (CBSA) removals staff to defer removal of certain PRRA applicants during the period between Royal Assent and the exemption’s coming into effect. The exemption’s provision must come into force as soon as possible to reduce the operational complexities associated with managing this situation, and to prevent further delays in finalizing and removing failed claimants.

Consultation

The technical legislative amendment related to medical examinations is being made in response to comments by the SJCSR.

During the legislative and regulatory development process, stakeholders expressed opposition to the restrictions on accessing the PRRA process. In addition, some stakeholders expressed concern that the exemption applies to country conditions, and not individual circumstances. The exemption to the restrictions will assist in taking into account changes in country circumstances in order to ensure failed claimants are not returned to a situation of risk that arose after the determination of their refugee claim.

Departmental contact

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