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

Registration

SOR/2012-154 July 26, 2012

IMMIGRATION AND REFUGEE PROTECTION ACT

Regulations Amending the Immigration and Refugee Protection Regulations

P.C. 2012-1000 July 26, 2012

Whereas, pursuant to subsection 5(2) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations, substantially in the annexed form, to be laid before each House of Parliament;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1), sections 17, 26 (see footnote c), 43 and 89, subsection 112(2.3) (see footnote d) and sections 116, 150 and 201 of the Immigration and Refugee Protection Act (see footnote e), makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

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 1) 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 paragraphs 112(2)(b.1) or (c) 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:

  • (iii) defraying the cost to the foreign national and their beneficiaries of a medical examination under paragraph 16(2)(b) of the Act, and related costs and administrative charges, or

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

  • (ii) defraying the cost to their beneficiaries of a medical examination under paragraph 16(2)(b) of the Act, and related costs and administrative charges, if the beneficiaries are protected persons within the meaning of subsection 95(2) of the Act, or

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.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

1. Executive summary

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. 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. Bill C-11, 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 Minister then introduced Bill C-31, the Protecting Canada’s Immigration System Act, which received Royal Assent on June 28, 2012. The Protecting Canada’s Immigration System Act applies an additional one-year bar to subsequent PRRA applications from the date the last PRRA decision was made. These one-year bars come into force upon Royal Assent of Bill C-31. The Protecting Canada’s Immigration System Act also extends the bar on PRRA to three years for claimants from designated countries of origin, though this amendment is to come into force at a later date.

The purpose of the bars on PRRA 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 bars on access to a PRRA. Detail regarding the criteria to be considered when making an exemption is to be provided for in the Immigration and Refugee Protection Regulations (Regulations). In addition to these criteria, the Regulations eliminate some operational inefficiencies related to the asylum system and provide concurrence between the IRPA and its Regulations.

Description: First, the Regulations establish criteria to be considered when the Minister makes exemptions to the bars on access to PRRA. Specifically, before making exemptions to the bars on PRRA, the Minister must determine if a change in circumstance in a foreign jurisdiction could lead to all or some of its nationals being subject to personalized risks for which Canada provides protection under sections 96 and 97 of the IRPA. Second, subsection 175(1) of the Regulations is repealed, which required 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 eliminates administrative inefficiencies and facilitates full integration into Canadian society for successful claimants. Third, consequential amendments to the Regulations ensure concurrence between the IRPA and its Regulations.

Cost-benefit statement: The costs associated with the exemption to the bar on PRRA exist irrespective of the amendments, as they are associated with the legislative provisions enacted by the Balanced Refugee Reform Act. This includes a cost of $670,000 per year to establish and maintain a country assessment unit with a wide range of responsibilities, including the identification of exemptions to the bar on PRRA. The repeal of subsection 175(1) of the Regulations results 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 has 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 entry into force of new laws or the application of new policies or practices in foreign jurisdictions, that could merit exemptions to the bars on PRRA.

2. Background

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 to 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. Among other measures, the Act bars failed asylum claimants from applying for a PRRA for one year following the last IRB decision on their claim. The Minister then introduced Bill C-31, the Protecting Canada’s Immigration System Act, which applies an additional one-year bar to subsequent PRRA applications from the date the last PRRA application was made, and provides that the one-year bar on the initial and subsequent PRRA applications comes into force upon Royal Assent of the Bill. Bill C-31 also extends the bar on PRRA to three years for claimants from designated countries of origin, though this amendment is to come into force at a later date.

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, despite the IRB having already conducted 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 bars on PRRA created by the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act is to streamline the asylum system and enable faster removals of failed claimants.

3. Issue

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 bars on access to a PRRA. This authority to exempt 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.

The Regulations provide further detail regarding the criteria to be considered by the Minister when making an exemption. The Regulations therefore clarify that an exemption should be made on consideration of sections 96 and 97 of the IRPA. (see footnote 2) These amendments will assist in more consistent application and interpretation of the IRPA and its Regulations.

In addition to the exemption to the bars on access to PRRA, the Regulations remove the requirement for successful asylum claimants to apply for permanent residence within 180 days of the IRB determination on their claim, as was previously required by subsection 175(1) of the Regulations. (see footnote 3) 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.

The consequence, however, was that protected persons who did not apply within 180 days had to re-apply for an exemption to this deadline based on humanitarian and compassionate (H&C) grounds. In practice, exemptions to the deadline were generally granted. Between 2004 and 2011, protected persons applying after 180 days were 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 were made to remove the 180-day filing deadline.

It was not efficient to have protected persons submit multiple applications for permanent residence. This was 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, this requirement, which added unnecessary complexity to the immigration system, was repealed.

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

4. 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 must consider in making exemptions to the bars on PRRA is to provide for greater transparency and consistency in the application of this policy. It allows for more focused input from government and non-government partners when providing information relevant to an exemption decision. Finally, this regulatory amendment contributes to the overall streamlining goal of the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act.

The repeal of subsection 175(1) of the Regulations addresses a gap in asylum policy and further contributes to improving the integrity of the asylum system. It assists in creating a system that is both fairer and more efficient by eliminating the operational inefficiencies caused by this requirement. It also benefits 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 amendment thus facilitates access to permanent resident status, and, in turn, supports the full integration of protected persons into Canadian society and reinforces Canada’s international obligations to refugees.

Finally, the consequential amendments ensure harmonization between the Regulations and IRPA. These amendments are made for the purposes of clarity and concurrence.

5. Description

The following amendments have been made to the Regulations:

  • (a) “[T]he criteria to be considered when an exemption is made” to the one-year or three-year bar on PRRA are specified

While the authority to make exemptions to the bars on PRRA has been established in the Balanced Refugee Reform Act, the Regulations establish the criteria that the Minister would have to consider in making exemptions to the bars on PRRA. The Regulations 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 against certain groups; or
  • changes in laws, policies or practices that indicate substantial grounds to believe that a danger of torture exists, or that indicate a risk of cruel and unusual treatment or punishment or risk to life that is not generalized.
  • (b) The requirement for successful asylum claimants to apply for permanent residence within 180 days of the IRB determination on their claim is removed

Subsection 175(1) is repealed from the Regulations. This means that successful asylum claimants are not 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 are 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 were amended in order to remove cross-references to subsection 175(1):

  • Subsection 11(3)
  • Paragraph 232(d)
  • Paragraph 301(1)(b)
  • Subsection 347(2)
  • (c) Consequential amendments related to the medical examination requirement

Consequential amendments to the Regulations were made to reflect changes to the IRPA 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 formerly stated which foreign nationals had to submit to a medical examination, as well as those who were exempt. As the general rule in the IRPA has changed and now requires that all persons must submit to a medical examination, section 30 of the Regulations was amended to only provide for a list of persons who are exempt from the medical examination. It is important to note that the intention of this amendment is not to change the policy and practice related to medical examinations.

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

6. Regulatory and non-regulatory options considered

Though not necessary for the functioning of the ministerial authority to make exemptions to the bars on PRRA, the Regulations 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 have been established as a matter of policy; however, this would be a less transparent option. Furthermore, subsection 112(2.3), as enacted 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 regard to the repeal of subsection 175(1), the former practice for protected persons who missed the 180-day filing deadline to apply for an exemption based on H&C grounds was intended only as a temporary measure. It was not efficient to have protected persons submit multiple applications for permanent residence. This non-regulatory option was especially problematic in light of efforts under the Balanced Refugee Reform Act to streamline the asylum system and increase efficiency. The amendment will best alleviate the problems caused by this requirement.

7. Benefits and costs

Costs associated with the amendment to introduce exemption criteria for the bars on PRRA exist irrespective of the amendments, as they are associated with the legislative provisions enacted by the Balanced Refugee Reform Act. This includes a cost of $670,000 per year to establish and maintain a country assessment unit with a wide range of responsibilities, including the identification of exemptions to the bars on PRRA, as well as for conducting country reviews to support advice and/or recommendations during the Designated Countries of Origin designation process. Costs associated with this policy also include human resources for participation in the interdepartmental working group, which will be absorbed within existing departmental budgets. These costs would be incurred with or without Regulations. In addition, failed asylum claimants will generally benefit from the clarification of criteria for exemption to the bars on PRRA, as this provides for greater policy transparency.

The repeal of subsection 175(1) of the Regulations benefits 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 is eliminated for protected persons who file outside of this deadline. This results in reduced costs in terms of the time required for application processing. These cost savings are, however, minimal, and will be absorbed within the existing operational workload. There will 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 now that an amendment has been made; however, the cost of processing these applications would be balanced by the cost-recovery fees that these applicants would have to pay. This population of applicants is not anticipated to be very large. Qualitatively, the repeal of subsection 175(1) also has a positive impact on protected persons who wish to apply for permanent residence. While this amendment affects a relatively small population, it is an important measure to eliminate the confusion and uncertainty caused by the former requirement to apply for permanent residence within 180 days.

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

8. Small business lens

There would be no impact on businesses, as the Regulations do not impose administrative burden or compliance costs on businesses.

9. Consultation

The regulatory amendments were prepublished in the Canada Gazette, Part Ⅰ, on July 2, 2011, for a 30-day period ending August 1, 2011. Only two comments were received, and no major issues were raised regarding these regulations. Both stakeholders (the Canadian Council for Refugees [CCR] and the Maytree Foundation) expressed support for the repeal of the 180-day filing deadline.

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

It is anticipated that the repeal of subsection 175(1) will be well received by refugee stakeholders. For instance, scholars noted that the 180-day window was arbitrary and “unnecessarily brief”; many refugees missed the 180-day timeframe for a number of reasons, and the H&C solution was not adequate, as it further lengthened and complicated the process. (see footnote 4)

Governmental partners such as the Canada Border Services Agency (CBSA) and the IRB were consulted in regard to the amendments, but no substantive comments were made.

10. Regulatory cooperation

Citizenship and Immigration Canada (CIC) will work closely with other federal departments and agencies to identify circumstances, such as the entry into force of new laws or the application of new policies or practices in foreign jurisdictions, that could merit exemptions to the bars on PRRA.

11. Rationale

These amendments will provide for greater clarity and transparency in making exemptions to the bars on PRRA, allowing for more focused input from government and non-government partners when providing information relevant to an exemption decision, and resulting in more consistent decisions.

These amendments will also eliminate administrative inefficiencies and provide protected persons with more time to receive permanent residence, without having to apply for humanitarian and compassionate consideration.

12. Implementation and enforcement

Implementation of the policy on exemptions to the bars on PRRA would be pursued with or without the Regulations, as the procedure is primarily contained in legislation. Therefore, implementation of the 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 exemptions from the bars on PRRA. Recommendations from the working group will be based on information indicating that changes in a country might present risks related to sections 96 and 97 of the IRPA. A country assessment unit has also been staffed and trained. This new unit was 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 will be released by CIC and the notice will be disseminated to all CIC and CBSA offices. Nationals, former habitual residents, or classes of nationals from designated countries will 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 5) 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 persons status.

13. Performance measurement and evaluation

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

Work is currently underway on indicators within a newly established monitoring and analysis unit 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 and the Protecting Canada’s Immigration System Act, an evaluation of the new system will be carried out. The evaluation will be coordinated by CIC and will involve all partners involved in implementing the new system, and will include a review of the elements impacted by the Regulations.

14. Contact

Teny Dikranian
Manager
Asylum Policy and Programs
Refugee Affairs Branch
Citizenship and Immigration Canada
365 Laurier Avenue W
Ottawa, Ontario
K1A 1L1
Telephone: 613-946-1301
Fax: 613-941-7001
Email: Teny.Dikranian@cic.gc.ca

Footnote a
S.C. 2008, c. 3, s. 2

Footnote b
S.C. 2001, c. 27

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

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

Footnote e
L.C. 2001, ch. 27

Footnote 1
SOR/2002-227

Footnote 2
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 3
This filing deadline also applies to the small number of persons granted protected persons status following a Pre-Removal Risk Assessment.

Footnote 4
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 5
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.”