Vol. 148, No. 23 — November 5, 2014
SOR/2014-237 October 24, 2014
IMMIGRATION AND REFUGEE PROTECTION ACT
Regulations Amending the Immigration and Refugee Protection Regulations
P.C. 2014-1118 October 23, 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 Immigration and Refugee Protection Regulations to be laid before each house of Parliament, substantially in the form set out in the annexed Regulations;
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), subsection 44(2) and section 53 (see footnote c) of the Immigration and Refugee Protection Act (see footnote d), makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
1. Subsection 228(1) of the Immigration and Refugee Protection Regulations (see footnote 1) is amended by adding the following after paragraph (b):
(b.1) if the foreign national is inadmissible under subsection 40.1(1) of the Act on grounds of the cessation of refugee protection, a departure order;
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.)
Under the existing Immigration and Refugee Protection Regulations (IRPR), there is no authority to issue a removal order against foreign nationals who are inadmissible as a result of a final determination that their refugee protection has ceased. Therefore, the Regulations are amended to allow for this specific enforcement procedure to occur.
On December 15, 2012, key amendments to the Immigration and Refugee Protection Act (IRPA) brought in by the Protecting Canada’s Immigration System Act (PCISA) came into force, adding section 40.1 and paragraph 46(1)(c.1) to the IRPA.
- Section 40.1 provides that a foreign national is inadmissible in Canada on a final determination that his or her refugee protection has ceased in accordance with section 108 of the IRPA.
- Paragraph 46(1)(c.1) provides for a concurrent loss of permanent resident status when there is a final determination that a permanent resident has ceased to be a Convention refugee or a person in need of protection for any of the reasons set out in paragraphs 108(1)(a) to (d) of the IRPA.
Presently, upon application by the Minister of Public Safety and Emergency Preparedness, the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) may determine that an individual’s refugee protection has ceased for reasons set out in subsection 108(1).
In addition, if a permanent resident’s refugee protection has ceased for any of the reasons set out in paragraphs 108(1)(a) to (d) of the IRPA, then in accordance with paragraph 46(1)(c.1) that individual also loses his or her permanent resident status and becomes a foreign national.
A foreign national who is the subject of a final determination that their refugee protection has ceased is inadmissible to Canada pursuant to section 40.1 of the IRPA. However, it is not possible under the present IRPR to issue a removal order with respect to that ground of inadmissibility.
The Balanced Refugee Reform Act (BRRA), which received Royal Assent on June 29, 2010, introduced changes to the IRPA designed to improve Canada’s asylum system, resettle more refugees from abroad, and make it easier for refugees to live in this country. To strengthen and enhance many of the reforms introduced in the BRRA, additional measures were proposed in the PCISA, which received Royal Assent on June 28, 2012.
Definitions of terms
a) Convention refugee / person in need of protection / permanent resident / foreign national
A Convention refugee is defined as a person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. This person lives either outside their country of nationality and is unable or, by reason of that fear, unwilling to obtain the protection of that country, or has no country of nationality and lives outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
A person in need of protection is defined as a person in Canada whose removal to their country of nationality (or their country of former habitual residence if they do not have a country of nationality), would subject them personally to a danger of torture or to a risk to their life or to a risk of cruel and unusual treatment or punishment.
A permanent resident is defined as a person who has acquired permanent resident status and has not subsequently lost that status under section 46 of the IRPA.
A foreign national is defined as a person who is not a Canadian citizen or a permanent resident, and includes a stateless person.
b) Removal orders
There are three types of removal orders that may be issued to an inadmissible foreign national: a departure order, a deportation order, and an exclusion order.
A departure order is primarily issued with respect to refugee claimants, at the time they file a claim for asylum. Individuals removed under a departure order are not barred from returning to Canada. A foreign national must comply with a departure order within 30 days after the order becomes enforceable. If the 30-day period expires and the foreign national has not confirmed their departure from Canada in the manner set out in the IRPR, the departure order becomes a deportation order.
A deportation order is generally issued for more serious immigration violations. A deportation order bars re-entry to Canada for life, unless written permission to return is received. Deportation orders are issued when an individual is found to be inadmissible for violations, such as serious criminality, organized crime, or war crimes.
The third type of removal order is an exclusion order, but it is not relevant to this regulatory amendment. An exclusion order is usually issued for less serious immigration violations and bars the person’s re-entry to Canada for one or two years, unless written permission to return is received. For example, an exclusion order would be issued in the case of a non-criminal overstay (e.g. someone who overstayed the time they were authorized to remain in Canada).
The current process for cessation allows the Minister to make an application to the RPD of the IRB under subsection 108(2) of the IRPA for a determination that a person’s Convention refugee or a person’s in need of protection status has ceased. Before the changes to the Act, a Convention refugee or a person in need of protection with permanent resident status maintained their permanent residence status regardless of cessation. There was also no relevant ground of inadmissibility.
The RPD may determine that an individual is no longer in need of refugee protection and that the individual has ceased to be a Convention refugee or a person in need of protection in one of the circumstances set out in paragraphs 108(1)(a) to (e) of the IRPA:
- (a) the person has voluntarily re-availed themselves of the protection of their country of nationality;
- (b) the person has voluntarily re-acquired their nationality;
- (c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;
- (d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or
- (e) the reasons for which the person sought refugee protection have ceased to exist.
The new paragraph 46(1)(c.1) provides that a permanent resident automatically loses his or her permanent resident status on a final determination that his or her refugee protection has ceased for any of the reasons set out in paragraphs 108(1)(a) to (d).
Under the current Regulations, a permanent resident who loses his or her refugee protection for the reason set out in paragraph 108(1)(e) will therefore not lose his or her permanent residence status and will not be inadmissible to Canada under section 40.1. This is why a regulatory amendment is being sought.
Cessation is a means for the Minister to maintain the integrity of the refugee process. Both sides have the opportunity to be heard. Pursuant to Rule 64 of the RPD rules, an application to vacate or cease refugee protection by the Minister must be made in writing to the RPD and a copy must be provided to the protected person. Once the application is received, the RPD schedules a hearing on the merits of the Minister’s application; the person concerned can attend the hearing in person (if in Canada) or by telephone, if outside Canada.
The burden of proof in a cessation application rests with the Minister. First, the Minister will attempt to present evidence that is sufficient to establish the facts in question unless rebutted. Second, the person concerned may then attempt to rebut the Minister’s evidence, as the burden of proof has shifted. The standard of proof is on a balance of probabilities. If the application is allowed by the RPD, then the person’s refugee status ceases, and if they are a permanent resident, they would also cease to be a permanent resident pursuant to paragraph 46(1)(c.1) of the IRPA unless the reason for the loss of refugee protection is set out in paragraph 108(1)(e) of the IRPA.
With this regulatory amendment, the following events would have to take place before an individual can be removed for being an inadmissible foreign national under section 40.1 of the IRPA:
1. A final determination that an individual’s refugee protection has ceased for any of the reasons set out in subsection 108(1).
2. If this individual is a permanent resident, then by operation of paragraph 46(1)(c.1) he or she would lose his or her permanent resident status (and become a foreign national) as long as the reason for such cessation is described in paragraphs 108(1)(a) to (d).
3. An inadmissibility report would be made and if well-founded, the Minister (or his delegate) could then issue a departure order against the foreign national.
This regulatory modification amends section 228 of the IRPR to provide the Minister of Public Safety and Emergency Preparedness (or a delegate of the Minister) with the authority to issue a departure order to a foreign national on a final determination that his or her refugee protection status has ceased as a result of cessation proceedings at the RPD. Providing this authority to the Minister improves the efficiency and timeliness of the removals process with respect to individuals who are no longer in need of Canada’s protection.
This amendment permits the Minister of Public Safety and Emergency Preparedness, or a delegate of the Minister (i.e. individuals with designated authority, such as border services officers, inland enforcement officers and regional program officers), to issue a removal order against a foreign national who is inadmissible to Canada on a final determination that his or her refugee protection has ceased. More specifically, the removal order is a departure order.
The following provision is added to subsection 228(1) of the IRPR after paragraph (b):
(b.1) if the foreign national is inadmissible under subsection 40.1(1) of the Act on grounds of the cessation of refugee protection, a departure order;
The wording is intended to mirror the wording under paragraph 228(1)(b) of the IRPR, which provides the authority for the Minister to issue a removal order where an individual is inadmissible to Canada after a final determination has been made to vacate a favorable refugee protection decision on the grounds that there was misrepresentation. The only difference in this circumstance is that the type of removal order to be rendered is a departure order rather than a deportation order.
Individuals removed under a departure order are not barred from returning to Canada. However, a foreign national must comply with a departure order within 30 days after the order becomes enforceable. If the 30-day period expires and the foreign national has not confirmed their departure from Canada in the manner set out in the IRPR, the departure order becomes a deemed deportation order, which bars re-entry to Canada for life, unless written permission to return is received.
The “One-for-One” Rule does not apply to this modification, as there are no specific administrative costs for business associated with this amendment.
Small business lens
The small business lens does not apply to this modification, as there are no administrative or compliance costs associated with small business.
During the PCISA legislative process, in 2012, many stakeholders were consulted and/or publicly provided comments. These stakeholders were, among others, the Office of the United Nations High Commissioner for Refugees, the Canadian Council for Refugees, the Justice for Refugees and Immigrants Coalition, Amnesty International, the Anglican Church of Canada, the Canadian Bar Association, the Barreau du Québec, the Canadian Association of Refugee Lawyers, the Quebec Immigration Lawyers Association, the Table de concertation des organismes au service des personnes réfugiées et immigrantes, the Centre de santé et de services sociaux de la Montagne, Legal Aid Ontario, the Canadian Civil Liberties Union and the Canadian Centre for Victims of Torture. They voiced their concerns on different platforms, including standing committees, press releases, Embassy articles, press conferences, Web sites, news releases and letters to the Minister.
In the first version of the PCISA, the proposed amendments to the IRPA included the loss of a person’s permanent resident status where the person is subject to a final determination that his or her refugee protection has ceased for the reasons set out in subsection 108(1) of the Act [which included paragraph 108(1)(e) — The reasons for which the person sought refugee protection have ceased to exist]. Due to inputs by stakeholders at the committee stage, the clause was amended to reference paragraphs 108(1)(a) to (d) only. Stakeholders did not, however, provide comments specifically about the removal order process associated with subsection 40.1(1) of the IRPA.
Given that removal is the final process in the cessation of a refugee claim and in most cases it is the applicants themselves who have voluntarily chosen to act in a manner which justifies the cessation of their refugee protection (e.g. by consciously choosing to voluntarily re-avail themselves or re-acquire status in their previous or a new country), the Canada Border Services Agency (CBSA) did not anticipate significant criticism regarding the amendment to facilitate the issuance of a departure order if a foreign national is inadmissible because his or her refugee protection has ceased. Moreover, this regulatory amendment is necessary as there is currently no legislative authority for a removal order to be issued with respect to a foreign national who is inadmissible to Canada because his or her refugee protection has ceased.
The amendment was published in the Canada Gazette, Part I, on February 15, 2014, followed by a 30-day comment period. One comment was received. The Canadian Bar Association (CBA) supports both the clarity provided by the amendment and the decision to issue departure orders rather than another form of removal order in cessation cases. The CBA also provided comments regarding the application of the cessations provisions. These comments were addressed during a panel discussion on cessation at the CBA National Immigration Law Conference on May 9 and 10, 2014. The CBSA provided an overview of the policies and procedures that guide cessation activities and stated when updated materials relating to the regulatory amendments would be made available. Additionally, as a follow up to the session, the CBSA provided up-to-date statistics on cessation at the request of the CBA.
This regulatory amendment ensures that the Regulations remain consistent with the amendments to the IRPA introduced under the PCISA, specifically, section 40.1 with respect to the cessation of refugee protection.
In the past, most of these individuals were overseas and there was no need to issue a removal order against them. For those cases pursued in Canada, it was always individuals who had not yet received permanent resident status. There was no ability to write an inadmissibility report in such cases since there was no applicable ground of inadmissibility. In contrast, where a person’s Convention refugee status was vacated due to misrepresentation of a material fact, that person could be reported under section 44 of the IRPA as being inadmissible to Canada for misrepresentation under paragraph 40(1)(c) of the IRPA. If the Minister or his delegate decided that such a report was well-founded, the individual could then be issued an exclusion order pursuant to paragraph 228(1)(b) of the IRPR.
However, in cessation cases, the person had not misrepresented any material facts; they had “ceased” to be in need of protection in one of the circumstances set out in section 108 of the IRPA. Now, with the addition of an applicable ground of inadmissibility in section 40.1 of the IRPA, it is necessary for the IRPR to set out the authority for a removal order to be issued so that these inadmissible individuals may be removed from Canada.
By giving the Minister the authority to issue a removal order in these cases, the Regulations contribute to the integrity of the refugee determination system by helping to expeditiously remove those foreign nationals who are no longer in need of Canada’s protection. The regulatory change may also deter abuse. For example, some foreign nationals attain person in need of protection status in Canada, but also re-avail themselves of benefits in the country where the risk was identified. This could result in the foreign national receiving benefits, such as social assistance when they are not actually residing in Canada. This amendment helps prevent this possibility and therefore contributes to improving public faith in the fairness and integrity of Canada’s asylum system.
Implementation, enforcement and service standards
The CBSA will undertake a systematic review of cessation cases, as funding was made available as part of the BRAA and the PCISA. The CBSA has identified a project team which has developed a strategy and action plan, identified project enablers, and discussed best practices. The CBSA and Citizenship and Immigration Canada (CIC) are identifying individuals whose circumstances merit an application to cease refugee status. The CBSA has the lead on reviewing and filing cessation applications to the IRB. National training has been developed for both the CBSA (border services officers and inland enforcement officers) and CIC (visa officers and inland officers) to help them identify and gather evidence for cessation cases. The IRB has also been engaged to ensure that cessation applications are given sufficient priority to be heard in a timely fashion.
Enforcement and Intelligence Programs Directorate
Canada Border Services Agency
100 Metcalfe Street