Vol. 148, No. 14 — July 2, 2014
SOR/2014-166 June 19, 2014
IMMIGRATION AND REFUGEE PROTECTION ACT
Regulations Amending the Regulations Amending the Immigration and Refugee Protection Regulations (Amendment Consequential to the Economic Action Plan 2013 Act, No. 1)
P.C. 2014-818 June 18, 2014
Whereas, pursuant to subsection 5(2) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), the Minister of Public Safety and Emergency Preparedness has caused a copy of the proposed Regulations Amending the Regulations Amending the Immigration and Refugee Protection Regulations (Amendment Consequential to the Economic Action Plan 2013 Act, No. 1) to be laid before each House of Parliament, substantially in the annexed form;
Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subsection 5(1) and section 53 (see footnote c) of the Immigration and Refugee Protection Act (see footnote d), makes the annexed Regulations Amending the Regulations Amending the Immigration and Refugee Protection Regulations (Amendment Consequential to the Economic Action Plan 2013 Act, No. 1).
REGULATIONS AMENDING THE REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (AMENDMENT CONSEQUENTIAL TO THE ECONOMIC ACTION PLAN 2013 ACT, NO. 1)
1. The Regulations Amending the Immigration and Refugee Protection Regulations (see footnote 1) are amended by adding the following after section 2:
CONSEQUENTIAL AMENDMENT — SECTION 167 OF THE ECONOMIC ACTION PLAN 2013 ACT, NO. 1
2.1 Despite section 1, subsections 231(1) and (2) of the Immigration and Refugee Protection Regulations, as they read on December 14, 2012, apply in the case where an application for leave for judicial review in accordance with section 72 of the Immigration and Refugee Protection Act has been made before the day on which this section comes into force or is made on or after that day in respect of a decision of the Refugee Protection Division rejecting the applicant’s claim for protection if
- (a) the decision of the Refugee Protection Division is one that could have been or could be appealed to the Refugee Appeal Division but for section 167 of the Economic Action Plan 2013 Act, No. 1; and
- (b) in respect of an application for leave made before the day on which this section comes into force, none of the events described in paragraphs (a) to (e) of subsection 231(1) of the Immigration and Refugee Protection Regulations, as they read on December 14, 2012, has occurred before the day on which this section comes into force.
COMING INTO FORCE
2. These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
A regulatory amendment is required to align the Immigration and Refugee Protection Regulations (IRPRs) with recent legislative amendments brought forward through the Economic Action Plan 2013 Act, No. 1 (EAPA). As a result of the EAPA, some failed refugee claimants inadvertently lost an automatic stay of removal. Consequently, these individuals are put into the position where they must apply for a judicial stay of the removal or be removed from Canada. This regulatory proposal seeks to reinstate an automatic stay of removal for those failed refugee claimants.
Legislative and regulatory framework
The Immigration and Refugee Protection Act (IRPA) governs Canada’s refugee system. The Immigration and Refugee Protection Regulations (IRPRs) are made under the IRPA. The IRPA provisions regarding refugee claims are administered and enforced through the IRPRs.
The Refugee Reform initiative introduced major reforms to Canada’s refugee status determination system that are intended to deliver faster decisions, deter abuse and quickly remove un successful refugee claimants. The foundation for this initiative was two pieces of legislation: the Balanced Refugee Reform Act (BRRA) and the Protecting Canada’s Immigration System Act (PCISA).
On June 29, 2010, the BRRA received royal assent. The BRRA is intended to improve Canada’s refugee system, take on more refugees from abroad and make it easier for refugees to settle in Canada. Further amendments were made to the IRPA through the PCISA, which received royal assent on June 28, 2012. The PCISA strengthened and enhanced changes introduced through the BRRA. The changes to IRPA, made through the BRRA and PCISA, directly affected provisions in the IRPRs.
Three federal entities are the most directly responsible for immigration and refugee matters under the IRPA and the IRPRs: Citizenship and Immigration Canada (CIC); the Immigration and Refugee Board (IRB) and the Canada Border Services Agency (CBSA).
Citizenship and Immigration Canada
CIC has overall responsibility for immigration and refugee matters. It is responsible for selecting immigrants, issuing visitor visas and granting citizenship. CIC also selects refugees abroad for resettlement in Canada and determines the eligibility of refugee protection claims made in Canada before referring eligible claims to the IRB for a decision.
Immigration and Refugee Board
The IRB is an administrative tribunal. It makes decisions on immigration and refugee issues. The IRB decides who needs refugee protection among the thousands of claimants who come to Canada annually.
Canada Border Services Agency
The CBSA is responsible for the enforcement of immigration and refugee law. For purposes of this proposal, this includes the removal of failed refugee claimants. Once a removal order comes into force, the IRPA compels the CBSA to remove the failed refugee claimant from Canada as soon as possible. The CBSA also determines the eligibility of refugee claims made at ports of entry and, like CIC, refers claims to the IRB for a decision.
Immigration and Refugee Board refugee claim processing and CBSA removals
Pre-Refugee Reform — Refugee Protection Division
The Refugee Protection Division (RPD) is a division of the IRB. Under the former system, the RPD was the only division that could grant refugee protection. The RPD was and continues to be an independent, quasi-judicial tribunal responsible for making first instance determinations on refugee claims made in Canada. Under the former system, there was no right of appeal of RPD decisions. Failed refugee claimants’ only recourse was to seek judicial review from the Federal Court.
Pre-Refugee Reform — Removals
A refugee claimant was and continues to be issued a conditional removal order at the time a refugee claim is made. If the refugee claim was unsuccessful before the RPD, the removal order would become enforceable. The failed refugee claimant could then apply to the Federal Court for leave and judicial review of a negative RPD decision. An application for leave was required to present an argument that the court should hold a hearing to judicially review the decision. In filing the leave application, unsuccessful refugee claimants, other than the exceptions noted in section 231 (e.g. serious criminals and claims with no credible basis) of the IRPRs, received an automatic stay of removal.
A stay of removal resulted in the postponement of removal as the removal order was not enforceable by the CBSA while the stay was in effect. The stay of removal remained in effect until the courts made a final decision on the unsuccessful claimant’s litigation.
In all cases, in both the previous and current systems, the individuals and their authorized representatives are informed of the reasons for the removal and are given a copy of the removal order. Family members in Canada who are dependents of the person subject to a removal order may be included in the removal order provided they are not Canadian citizens or permanent residents 19 years of age or over.
The CBSA can assign an escort officer if there is a determination that an escort is required to facilitate the removal. If there are any health concerns, a medical officer may assist the CBSA in escorting the person out of the country.
Post-Refugee Reform — Refugee Protection Division and Refugee Appeal Division
Under the new system, there are now two divisions of the IRB responsible for hearing refugee claims: the RPD and the Refugee Appeals Division (RAD). The RPD continues to be an independent, quasi-judicial tribunal responsible for making first instance determinations on refugee claims made in Canada. The RAD, on the other hand, hears appeals from both refugee claimants as well as the Ministers of CIC or Public Safety, where either party disagrees with a RPD decision. The RAD was created by the PCISA as part of the Refugee Reform initiative. It is currently the only appeal available to either the applicant or the Minister prior to filing for leave and judicial review by the Federal Court.
The IRPA governs refugee claimant eligibility for RAD access. PCISA introduced the following new criteria defining groups of individuals not eligible to appeal to the RAD when the RPD rejects their refugee claim:
- (1) Individuals from a designated country of origin (DCO); (see footnote 2)
- (2) Individuals determined to have a “manifestly unfounded claim” (MUC), (see footnote 3) or a claim with no credible basis; (see footnote 4)
- (3) Individuals that fall under an exception to a Safe Third Country Agreement (STCA-exception claimants); (see footnote 5)
- (4) Individuals who are designated as part of an “irregular arrival”; (see footnote 6) ad
- (5) Individuals whose positive refugee decisions have been ceased or vacated following an application by the Minister of Public Safety. (see footnote 7)
The above-noted categories were introduced into law through the PCISA and were added to the already present categories of refugee claimants who were excluded from RAD, namely individuals who withdraw their applications for protection or whose applications for protection are declared abandoned by the RPD.
Post-Refugee Reform — Removals
Prior to the implementation of refugee reform, section 231 of the IRPR provided an automatic stay of removal when failed refugee claimants filed an application for leave and judicial review of a refugee claim rejected by the RPD, subject to certain exceptions and limitations. On December 15, 2012, amendments to section 231 of the IRPR provided an automatic stay of removal to claimants with a claim rejected by the RAD, rather than by the RPD, when a refugee claimant seeks judicial review of his/her rejected claim.
As a result of the amendment to section 231 of the IRPR, an automatic stay of removal is no longer available to a claimant who has applied for leave and judicial review of claims rejected by the RPD; rather, the automatic stay of removal is available to a claimant who has applied for leave and judicial review of claims rejected by the RAD, subject to certain exemptions and limitations.
This regulatory amendment was and is intended to ensure the timely removal from Canada of those failed refugee claimants who are excluded from filing an appeal to the RAD because they either fall into one of the above-mentioned five categories, or because their applications for protection are withdrawn or declared abandoned. Pursuant to the IRPA, the CBSA has a statutory obligation to carry out removals as soon as possible, once a removal order becomes enforceable.
The PCISA and IRPRs changes created two possibilities with respect to the availability of the automatic stay of removal
- (1) Those with the automatic stay of removal eliminated — These would be people who are ineligible to appeal their negative RPD decision to RAD; and
- (2) Those retaining the automatic stay of removal — These would be people who:
- (a) are eligible to appeal their negative RPD decision to RAD;
- (b) appealed; and
- (c) subsequently sought leave for judicial review of their RAD decision at the Federal Court.
Transitional period — Refugee Reform
Generally, refugee claims are continually on-going from the time an officer refers a refugee claim to the RPD for a decision, to the time the decision is made by the RPD. To implement the Refugee Reform initiative, transitional measures were needed to provide certainty with respect to when the changes would apply to a given claim in process before the RPD at the time of the coming into force of the new automatic stay of removal regulations. For the purposes of this proposal, there were two relevant transitional mechanisms: (1) subsection 36(1) of BRRA; and (2) the transitional provision 2(b)(i) of the Regulations Amending the Immigration and Refugee Protection Regulations and cited by the IRPRs.
1. Subsection 36(1) of BRRA
The amendments to the IRPA that were made through BRRA received royal assent from Parliament on June 29, 2010; however, subsection 36(1) of BRRA did not come into force on June 29, 2010. The intention was to bring subsection 36(1) of the BRRA into force at a later date. This would be accomplished through an Order in Council (OIC).
Essentially, this transitional implementation mechanism was meant to apply in the following manner: (a) for refugee claims referred to the RPD before the subsection came into force — claimants would not have a right to appeal to the RAD; and (b) for refugee claims referred to the RPD after the subsection came into force — establish the claimant’s right of appeal to RAD, assuming the claimant was eligible to do so.
2. IRPR transitional provision
The transitional provision, located within the IRPRs, grants claimants an automatic stay of removal if the claimant:
- (a) was denied the right of appeal to the RAD by subsection 36(1) of the BRRA only;
- (b) has applied for leave to judicial review of a RPD decision; and
- (c) the claimant does not fall into one of the above-described categories (i.e. DCO, MUC, claims with no credible basis, STCA exemption claims, irregular arrivals, withdrawn and abandoned, and claims that have been ceased or vacated).
Order in Council
An OIC was used to bring subsection 36(1) of BRRA into force. The intention had been to bring subsection 36(1) of BRRA into force on December 15, 2012 (i.e. on the same day that the RAD was intended to come into existence). However, subsection 36(1) of the BRRA came into force on August 15, 2012, as a consequence of having to bring all of section 36 into force in order to enact an unrelated provision in subsection 36(2). Accordingly, claims referred to the RPD between August 15 and December 14, 2012, were unintentionally given a right to appeal to the RAD, which was contrary to the policy intent, inconsistent with the legislative framework, and before the creation of the RAD itself.
The EAPA, which came into force on June 26, 2013, addressed this issue. The EAPA eliminated the right of appeal to the RAD for claimants referred between August 15 and December 14, 2012, who had not yet received an RPD decision at the time the EAPA came into force. However, in doing so, it inadvertently also eliminated the automatic stay of removal for some failed refugee claimants. Accordingly, some failed refugee claimants who file for judicial review of their negative RPD decision would also be required to apply to the Federal Court for a stay of removal pending the outcome of the application for leave, or else be removed. The EAPA amendments apply to refugee claims: (a) referred to the RPD between August 15 and December 14, 2012; and (b) with an outstanding decision before the RPD at the coming into force of the EAPA.
The objective is to provide an automatic stay of removal for certain claimants as further described in the section below.
The proposed text will provide an automatic stay of removal for claimants:
- (a) whose claim for protection was referred to the RPD for a decision between August 15, 2012, and December 14, 2012;
- (b) whose RPD decision in respect of that claim took effect after June 26, 2013;
- (c) who have applied or will apply for leave for judicial review of that RPD decision; and
- (d) who do not fall into one of the above-mentioned categories (i.e. DCO, MUC and claims with no credible basis, STCAexception claimants, “irregular arrivals,” withdrawn and abandoned, and claims that have been vacated or ceased).
Other exceptions and limitations to the automatic stay of removal under section 231 of the IRPRs will continue to apply (e.g. the exception applicable to persons who are subject to removal orders because they are inadmissible on grounds of serious criminality). The stay will end upon resolution of the litigation.
The “One-for-One” Rule does not apply to this proposal as there is no change in administrative costs to business.
Small business lens
The small business lens does not apply to this proposal, as there are no costs to small business.
On September 16, 2013, the following stakeholders were notified that consideration was being given to these proposed regulatory amendments:
- Canadian Bar Association;
- United Nations High Commission for Refugees;
- Canadian Council for Refugees;
- Canadian Association of Refugee Lawyers;
- Immigration and Refugee Board; and
- Association québécoise des avocats et avocates en droit de l’immigration.
Stakeholders were invited to provide any comments or concerns on this initiative to the CBSA. The eight working day comment period closed on September 25, 2013. No comments or concerns were received.
Citizenship and Immigration Canada and the Department of Justice are also key stakeholders in this initiative. They have expressed strong support for this proposal.
The proposed amendment reinstates the automatic stay of removal for those failed refugee claimants who lost it as a result of being disqualified from accessing the RAD upon the coming into force of the EAPA. It will be confined to claimants under the aforementioned circumstances as was originally intended and is not expected to impact other claimants.
Qualitative costs and benefits
There would be no costs to the Government, business, consumers or Canadians as a result of the proposed regulatory amendment. The proposed Regulations are technical in nature, and do not represent any new processes to be undertaken by the CBSA.
The individuals that will be the most directly impacted by this proposal will benefit in that they will not need to seek judicial stays to prevent their removal, thereby avoiding litigation costs.
The Federal Court will benefit from the reinstitution of the automatic stay of removal under this proposal in that its time will be devoted to other cases, rather than hearing applications for a judicial stay.
Richard St Marseille
Canada Border Services Agency
100 Metcalfe Street, 10th Floor
- Footnote a
S.C. 2008, c. 3, s. 2
- Footnote b
S.C. 2001, c. 27
- Footnote c
S.C. 2013, c. 16, s. 21
- Footnote d
S.C. 2001, c. 27
- Footnote 1
- Footnote 2
A DCO will include countries that do not normally produce refugees. These are countries that have a robust human rights record and that offer strong state protection. States with strong democratic and judicial institutions, as well as civil society organizations are likely to provide the necessary protection to their citizens and, as a result, foreign nationals from these countries are less likely to require protection.
- Footnote 3
A MUC is a claim that an RPD decision-maker determines to be clearly fraudulent based on the information provided by the claimant. MUCs can contribute to longer wait times for people in need of refugee protection and allows people not in need of refugee protection to remain in Canada while they wait for a decision on their claims.
- Footnote 4
In accordance with subsection 107(2) of the IRPA, if the RPD is of the opinion that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its decision that there was “no credible basis” for the claim. This type of decision is used when RPD members determine not only that the evidence adduced is insufficient to establish the claim, but also that there is no credible or trustworthy evidence on which the claim could have been accepted. Like DCO claims and MUCs, these types of claims can slow down processing in Canada’s refugee system.
- Footnote 5
Under paragraph 101(1)(e) of the IRPA, a refugee claim to the RPD is ineligible if the claimant came directly or indirectly from a country designated in regulation. Currently, the only country designated is the United States. Safe third country agreements require that a foreign national make a claim in the first country in which they arrive unless they qualify for an exception to the agreement, such as having a family member who is a Canadian citizen or permanent resident. Because refugee claimants who are subject to an exception from the agreement had a previous opportunity to make a refugee claim in a safe third country (i.e. another nation that recognizes international refugee laws), a negative RPD decision on their claims should be considered final.
- Footnote 6
After the coming into force of the PCISA, the Minister may designate an “irregular arrival.” The legislation provides that if designated by the Minister as part of an “irregular arrival,” the individual automatically becomes a “designated foreign national” (DFN) unless he or she holds the documents required for entry, and on examination the officer is satisfied that the person is not inadmissible to Canada. This authority has been put into place in order to curb human smuggling and discourage irregular migration trends.
- Footnote 7
The Minister of Public Safety and Emergency Preparedness may apply to the RPD to either cease a person’s refugee protection status if refugee protection is no longer required, or vacate a person’s refugee protection status if that status was obtained as a result of misrepresenting facts relevant to the application for protection.