Canada Gazette, Part I, Volume 157, Number 46: Regulations Amending the Immigration and Refugee Protection Regulations
November 18, 2023
Immigration and Refugee Protection Act
Canada Border Services Agency
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
A regulatory review was conducted on the division of authorities to issue removal orders. The authority is presently divided among the Immigration Division (ID) of the Immigration and Refugee Board (IRB) and the Minister’s Delegate (MD) [i.e. an official of the Canada Border Services Agency (CBSA) or of Immigration, Refugees and Citizenship Canada (IRCC)]. The former is intended to have jurisdiction over more complex inadmissibility grounds, whereas the latter is intended to have jurisdiction over relatively straightforward inadmissibility grounds. Three relatively straightforward circumstances of inadmissibility have been identified as more appropriately falling under MD jurisdiction; namely (1) misrepresentation of visa-exempt status on an electronic travel authorization (eTA) application; (2) failure to appear for a medical examination; and (3) failure to appear for examination at a designated port of entry. Referring these inadmissibility case types to the ID unnecessarily extends the length of time before a removal order can be issued while increasing border integrity risks when the simpler MD process would be more efficient and effective.
Commitment to review authorities for inadmissibility determination and removal order issuance
On April 13, 2017, the Government of Canada tabled its response to the Standing Senate Committee on National Security and Defence report entitled Vigilance, Accountability and Security at Canada’s Borders (PDF). In its report, among other things, the Committee noted that the removal of inadmissible persons is a lengthy and costly process and indicated a general orientation towards the notion that inadmissible persons should not, in the first instance, have to physically enter Canada only for the purpose of an admissibility hearing at the ID of the IRB and subsequent removal from Canada by the CBSA. In its response, the Government of Canada noted its commitment to delivering a balanced, efficient, and cost-effective immigration enforcement program, as well as addressing these underlying concerns raised by the Committee. The government response committed the CBSA to explore policy options to enhance efficiencies in the inadmissibility determination process. As a result, a broad multi-year review of various inadmissibility grounds was conducted regarding the authorities of either the ID or the MD to issue removal orders against inadmissible persons. This was the first comprehensive review of related authorities since the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR) came into force in 2002. The proposed amendments would ensure that the framework remains relevant and appropriate in today’s modern border management and immigration enforcement context.
Reports on inadmissibility and issuance of removal orders
Pursuant to the IRPA, if an officer is of the opinion that a foreign national is inadmissible for any of the reasons enumerated in the Act, the officer may write a report outlining the allegation. The report on inadmissibility must then be referred to an MD to determine whether or not the allegation is well founded. The IRPR specifies the circumstances in which an inadmissibility determination and removal order can be made by either the MD at time of review or whether the report must be referred to the ID for an admissibility hearing. Where a foreign national referred to the ID is determined to be inadmissible, the ID must issue a removal order. The ID does not have discretion to choose not to issue a removal order against an inadmissible foreign national. Once the removal order is enforceable,footnote 1 the CBSA is under a legal obligation to remove the foreign national as soon as possible. Overall, this is a much more lengthy and costly process when compared to the MD approach, which, for instance, enables the CBSA to issue and enforce a removal order at a port of entry.
Since its inception, the legislative framework in the IRPA and IRPR was intended to assign the relatively more straightforward inadmissibility circumstances to the MD. On the other hand, the more complex inadmissibility circumstances that require greater weighing of evidence were meant to be reserved for the ID, involving a more time and cost intensive admissibility hearing process. The Government of Canada has on various occasions continued to reaffirm this general policy orientation through various amendments to the IRPR. These amendments actively sought to maintain a balanced approach by deliberately prescribing relatively straightforward inadmissibility grounds under MD jurisdiction. This included, for instance, amendments that transferred sanctions inadmissibility from the ID to the MD that came into force on June 10, 2019. A similar approach was adopted on March 20, 2020, and on April 20, 2020, when the IRPR was further amended to place removal order issuance for certain relatively straightforward inadmissibility circumstances linked to the coronavirus (COVID-19) pandemic response under the jurisdiction of the MD rather than the ID.
For the purposes of the specified inadmissibility provisions related to these proposed amendments, a foreign national who has been issued a removal order is barred from entry to Canada for one year if it was issued for the types of non-compliance that have been identified, or five years if it was issued for misrepresentation (see the specified inadmissibility provisions in the “Description” section below). A foreign national who was issued a five-year removal order is not permitted to apply for permanent resident status within that period.
Government of Canada and CBSA priorities
The proposed amendments support the Government of Canada priorities set out in the Minister of Public Safety’s Mandate Letter to take action to modernize and maintain the integrity of our borders by modernizing processes at Canada’s ports of entry (POE). This is achieved by giving the MD authority to issue removal orders at the POE, in three relatively simple circumstances, by not allowing access to Canada to those who are found inadmissible for the sole purpose of an admissibility hearing and removal.
Streamlining admissibility determination and removal would advance the Government of Canada’s commitment to the Standing Senate Committee on National Security and Defence Committee to deliver a balanced, efficient, and cost effective immigration enforcement program. This commitment is also reflected in the CBSA’s strategic policy agenda, which includes enhancing the Agency’s capacity for removals of inadmissible persons and leveraging solutions in support of more effective removals.
Canada’s immigration detention program is based on the principle that detention shall be used only as a measure of last resort, in limited circumstances, such as where an individual is considered to be a danger to the public, a flight risk or where their identity has not been established, and only after appropriate alternatives to detention are considered and determined to be unsuitable or unavailable. Detention decisions depend on the facts and circumstances of each case and are made having regards to the factors outlined in the IRPR.
The Regulations Amending the Immigration and Refugee Protection Regulations (the proposed Regulations) would support this policy stance by avoiding the potential detention of individuals found inadmissible, more particularly when considering those who failed to appear for examination at a designated port of entry. These individuals face potential detention when referred in Canada to appear before the ID, since avoidance of examination is a factor weighing towards flight risk. By transferring authority to issue a removal order to the MD the potential for detention would be altogether avoided, volumes of those held in detention reduced, cost savings increased and lead to more efficient and expedited removal of those who are inadmissible to Canada.
Reports from 2020 and 2021 — Immigration removals
In its spring 2020 report, the Auditor General of Canada examined the CBSA’s removals program. The audit focused on whether the Agency removed individuals ordered to leave Canada as soon as possible. The Auditor General noted that the timely removal of foreign nationals who are found inadmissible protects the integrity and fairness of Canada’s immigration system. It was furthermore noted that removals are also one of the most effective ways to deter those who might otherwise seek to abuse the immigration system. To the extent that the proposed amendments would enable inadmissibility cases to be determined more swiftly, increase the pace at which removal orders can be issued, and increase the CBSA’s ability to conduct more removals from ports of entry rather than requiring physical referral into Canada for an admissibility hearing at the ID, the proposed amendments contribute towards the overall goal of ensuring removals are conducted as soon as possible.
In the related spring 2021 Government response to the Fifth Report of the House of Commons Standing Committee on Public Accounts, entitled Immigration Removals (PDF), Parliamentarians were informed of the CBSA’s intention to move forward with the proposed amendments.
Judicial review at Federal Court
Most decisions rendered under the IRPA, including MD decisions to issue a removal order against a foreign national, may be challenged by way of an application for judicial review to the Federal Court pursuant to subsection 72(1) of the IRPA. A foreign national who seeks judicial review of an MD decision must first make an application for leave to the Court (i.e. permission). At the leave stage, the Court conducts a paper review of the file. If the application for leave is dismissed, the file is closed and this decision cannot be appealed. If leave is granted, the application for judicial review will be heard by the Federal Court.
Foreign national holding a permanent resident visa
Where a right of appeal exists, a foreign national must first exhaust their right of appeal before they make an application for leave and judicial review. Under subsection 63(2) of the IRPA, a foreign national who holds a permanent resident visa may file an appeal to the Immigration Appeal Division (IAD) against the issuance of the removal order by an MD or the ID. No appeal may be made, however, if the foreign national is inadmissible on grounds of security, violating human or international rights, serious criminalityfootnote 2 or organized criminality. The IAD may allow the appeal if
- the decision-maker made an error in law or of fact (or both law and fact);
- the decision-maker did not respect a principle of natural justice; or
- in certain circumstances, and taking into account the best interests of a child directly affected by the decision, there are sufficient humanitarian and compassionate considerations (H&Cs) to warrant special relief, in light of all the circumstances of the case. If, however, the foreign national obtained the permanent resident visa on the basis of membership in the family class, the IAD must not consider H&Cs unless it has decided that the foreign national is a member of the family class and the sponsor is a sponsor within the meaning of the IRPR.
If it allows the appeal, the IAD generally sets aside the original decision and makes the decision that in its opinion should have been made.
If the IAD rejects their appeal, a foreign national may file an application for leave and judicial review to the Federal Court.
The proposed amendments would transfer the authority to issue removal orders against foreign nationals from the ID to the MD in three straightforward inadmissibility scenarios: (1) misrepresentation of visa-exempt status on an eTA application; (2) failure to appear for a medical examination; and (3) failure to appear for examination at a designated port of entry. The proposed amendments streamline inadmissibility decision-making in these scenarios, which will enable faster issuance of removal orders. These amendments would partially address the above-noted outstanding government response commitment and close residual gaps in the CBSA’s ability to efficiently manage the border.
The proposed amendments would transfer authority to issue removal orders from the ID to the MD in the three circumstances described below, effectively streamlining decision-making and enabling the faster issuance of removal orders. No additional changes are being made to the IRPR. As it is the case under the existing regulations for many inadmissibilities, a departure order would be the applicable removal order if the foreign national’s claim for refugee protection is found eligible for referral to the Refugee Protection Division (RPD). The enabling authority to make these amendments is found within paragraph 53(b) of the IRPA. The Minister of Public Safety, Democratic Institutions and Intergovernmental Affairs has exclusive policy responsibility for this enabling authority.
1. Misrepresentation of visa-exempt status pursuant to paragraph 40(1)(a) of the IRPA to obtain an electronic travel authorization
Every foreign national who wishes to enter Canada must hold a temporary resident visa unless they have been exempted from the visa requirement. The vast majority of visa-exempt foreign nationals, other than American citizens, who seek to enter Canada by air must obtain an eTA. An eTA is an authorization to travel to Canada that is issued by the IRCC and is applicable for the air mode of travel. The eTA program was introduced on March 15, 2016. The eTA application process is designed as a light-touch, automated process; however, it is possible for a visa-required foreign national to attempt to abuse the application process by applying for an eTA and purporting to hold a visa-exempt status.
Determining inadmissibility in this case is relatively straightforward, and the matter would therefore be transferred to the jurisdiction of the MD rather than the ID. Given existing practices, a foreign national attempting to abuse the system would have to actively enter various pieces of erroneous data into the system, effectively misrepresenting their status. Moreover, the information entered can be validated by officers through an examination of the foreign national’s travel documents, such as passports, resident cards and other evidence on hand.
2. Non-compliance with the requirement to undergo a medical examination pursuant to paragraph 16(2)(b) of the IRPA
Medical examinations are in place to protect public health and public safety, and to avoid placing excessive demand on Canada’s health and social services. Medical examinations are a requirement for foreign nationals working in certain occupations in which the protection of public health is essential (e.g. health care or child care), foreign nationals who are seeking to stay in Canada in excess of six months and who have resided or stayed for six or more months in the previous year in a country that has a higher incidence of communicable disease than Canada, foreign nationals who claim refugee protection in Canada, and any foreign national who an officer has reasonable grounds to believe is medically inadmissible. Pursuant to the IRPR, medical examinations include assessments such as physical examinations, diagnostic tests, and laboratory tests.
Determining whether or not a foreign national attended a required medical examination where necessary under the IRPA is relatively straightforward for an officer. The determination does not require the labour and the time-intensive admissibility hearing process of the ID. Documentation and other forms of evidence of attendance can be made readily available to officers seeking to verify compliance.
3. Non-compliance with the requirement to appear for examination at a designated port of entry pursuant to subsection 18(1) of the IRPA
A foreign national seeking to enter Canada must appear for examination at a designated port of entry and must be authorized to enter and remain in Canada. Port of entry examinations can be understood as interviews or questions posed by officers so that the officers can determine if the foreign national is compliant with the IRPA and other border-related legislation prior to authorizing the person’s entry into Canada.
Controlling and examining those who seek entry at Canada’s borders to ensure that they are not inadmissible and/or do not pose a threat to the safety and security of Canada is a cornerstone of effective border management. Implementing measures that clearly signal that evading examination is a serious violation of border-related rules and that warrant effective and timely enforcement is therefore of utmost importance and is in the public interest.
This proposed amendment would be limited to foreign nationals who enter at a designated port of entry, but who do not appear for examination. Although designated ports of entry have officers and physical infrastructure such as gates, some travellers still attempt to circumvent the requirement to appear for examination. Foreign nationals who enter Canada between ports (i.e. not at a designated port of entry) as well as do not comply with the requirement to appear for examination would continue to be referred to the ID, as these cases are more complex.
Determining whether or not a foreign national complied with the requirement to appear for examination at a designated port of entry is straightforward. Officers are physically present at ports of entry to welcome travellers, and there are various forms of security infrastructure at ports of entry, including cameras and other technologies, which can identify persons who fail to stop for questioning or examination by an officer. Accordingly, the proposed amendments would transfer authority for these cases of inadmissibility from the ID to the MD.
4. Consequential amendment to specify the applicable removal order if the foreign national’s claim for refugee protection is found eligible
It is an established principle in the IRPR that if a person’s claim for refugee protection is found eligible to be referred to the RPD, the removal order for several inadmissibilities (e.g. related to non-compliance, health reasons, requirement to appear for an examination) is a departure order instead of an exclusion order, which would apply to all other cases.
In the case of a departure order, a person must depart Canada within 30 days after the order becomes enforceable and is exempt from the requirement to obtain authorization to return to Canada. In other words, once a person departs Canada, and their departure is confirmed, they are not required to seek an authorization to return to Canada under subsection 52(1) of the IRPA.
In the case of an exclusion order, a person must obtain a written authorization to return to Canada during the one-year period after the exclusion order was enforced or for a period of five years if the exclusion order was issued for misrepresentation. If a person returns within the prescribed period without written authorization, they may be found inadmissible for failing to comply with this requirement and be subject to a deportation order.
A consequential amendment would be required to specify that in the three noted circumstances, the applicable removal order would become a departure order if the person has applied for refugee protection and were found eligible to be referred to the RPD.
An online 30-day public consultation was launched beginning on August 24, 2020, and ending on September 22, 2020. The following stakeholders were notified:
- British Columbia Civil Liberties Association
- Canadian Association of Refugee Lawyers
- Canadian Association of Professional Immigration Consultants
- Canadian Bar Association (Immigration Law Section)
- Office of the United Nations High Commissioner for Refugees
- Barreau du Québec
- University of Toronto, International Human Rights Program
- Justice for Children and Youth
- Amnesty International
- Canadian Human Rights Foundation
- Department of Justice, Criminal Law Policy Section
- Office of the Privacy Commissioner of Canada
- Canadian Centre for Policy Alternatives
- University of Toronto David Asper Centre for Constitutional Rights
- Federation of Law Societies Canada
- Ontario Human Rights Commission
- Canadian Association of Chiefs of Police
- Canadian Taxpayers Federation
One expert legal organization responded with comments on two of the three amendment proposals. With respect to the proposed amendment on misrepresentation of a visa-exempt status to obtain an eTA, the stakeholder observed that generally, findings and explanations related to allegations of misrepresentation are complex and call for careful and measured assessments.
This comment was given careful consideration, and it was ultimately determined to move forward with the transfer of authority for this particular inadmissibility circumstance without any changes to the proposed amendments following stakeholder consultations. While the general allegation of misrepresentation is recognized as complex overall, the proposed amendments focus on one very narrow circumstance of misrepresentation where there is significantly less complexity and weighing of evidence required to make a determination. In this particular circumstance, an inadmissible foreign national would have entered fictitious data in their online eTA application, and the misrepresented information can be easily validated through a review of related travel documents and other evidence on hand.
This stakeholder also commented on the issue of non-compliance with the requirement to undergo a medical examination. In the opinion of the commentator, the transfer of authority was not necessary since this scenario could be dealt with by the refusal of an application under the IRPA, which requires the medical examination. If the application is refused and the applicant remains in Canada without status, then the MD already has the authority to issue a removal order. This comment was also given due consideration, and it was determined to proceed with the proposed amendment without changes. To the extent that there is already an indirect authority for the CBSA to issue a removal order for these cases (i.e. an allegation of inadmissibility for remaining in Canada after an application was rejected on the basis of non-compliance with the requirement to undergo a medical examination), these proposed amendments would provide a more direct and streamlined inadmissibility determination process to handle these cases without requiring prolonged physical presence in Canada.
Where a foreign national who is seeking entry into Canada is requested to undergo a medical examination, but chooses not to comply with the requirements, providing a direct pathway to resolve this inadmissibility would protect the public health and safety of Canadians. The proposed amendments would provide a more direct mechanism for the CBSA to issue a removal order in these cases and better align with the policy objectives noted above, of streamlining the inadmissibility determination process and reducing the requirement for admissibility hearings in relatively straightforward cases.
Pursuant to subsection 5(2) of the IRPA, the proposed regulations were tabled in both the House of Commonsfootnote 3 and the Senatefootnote 4 respectively. No comments on the proposed Regulations as a result of their tabling were received.
Modern treaty obligations and Indigenous engagement and consultation
The proposed amendments would transfer the authority from the ID to the MD to issue removal orders against foreign nationals for three straightforward inadmissibility scenarios. Therefore, they are not expected to have any impact on Indigenous groups or the Government of Canada’s modern treaty obligations.
Removal order issuance authorities are prescribed by regulation, as part of the IRPR. As the proposed amendments constitute a change to the authorities to issue removal orders, no other instrument is available to implement the change.
Benefits and costs
The implicated inadmissibility provisions under the IRPR are already activities that form part of the CBSA’s immigration enforcement responsibilities. There are no incremental or additional costs to implement the proposed amendments because the MD is already required to review every inadmissibility case before they refer them to the ID.
It is estimated that decisions related to misrepresentation of visa-exempt status to obtain an eTA would have a cost avoidance of approximately $9,598 for one case per year over a 10-year period, and non-compliance with the requirement to appear for examination at a designated port of entry would have a cost avoidance of approximately $76,708 for one case per year over a 10-year period.
The cost avoidance estimate for non-compliance with the requirement to appear for an examination is higher, as it is assumed that the costs of admissibility hearings and detention reviews would be avoided because the determination would be made at a POE and the foreign national would not have gained access to Canada. In addition, enforcing a removal order at the POE versus inland would be less costly.
The estimated cost avoidance is not the total cost avoided. It is not assumed that there will only be one case per year, but rather costs are expressed in terms of one case per year. Costs have been expressed in this manner for consistency in methodology, as no historical volumes were available for misrepresentation of visa-exempt status to obtain an eTA, and costs could not be expressed in terms of expected volumes. Statistics with respect to misrepresentation of visa-exempt status to obtain an eTA are not readily available because misrepresentation statistics are not differentiable at a micro level, so the analysis of the misrepresentation provision is based on similar enforcement cases and assumes that admissibility hearings, detention and removal are all applicable factors.
Cost avoidance would result primarily from not having to hold admissibility hearings; however, given the anticipated shorter decision-making time frames because of these amendments, cost avoidance could also be achieved through reduced detention and reduced investigations to locate foreign nationals who may have absconded. The effect of the proposed amendments, which are expected to reduce such downstream activities as detention, investigations and removals, would lower operational costs and result in cost avoidance for the CBSA. It is anticipated that there would be a negligible amount of cost avoidance associated with decisions related to non-compliance with the requirement to appear for a medical examination. Although non-compliance with the requirement to undergo a medical examination is not projected to result in any cost avoidance, a transfer of authority would align this straightforward inadmissibility provision under the MD’s authority.
Cost avoidance estimates were based on data reviewed between 2015 and 2018, and it was assumed that the rate of enforcement would remain constant moving forward, particularly given nothing in this regulatory proposal would change factors such as the standard of evidence, or officer discretion with respect to inadmissibility reports.
Small business lens
The small business lens does not apply as there are no associated impacts on businesses. The proposed amendments would only impact foreign nationals who have been determined to be inadmissible and issued a removal order.
The one-for-one rule does not apply as there is no impact on business. The proposed amendments would only impact the inadmissibility decision-making process for foreign nationals alleged to be inadmissible to Canada for select inadmissibility provisions.
Regulatory cooperation and alignment
There is no regulatory cooperation or alignment (with other jurisdictions) component associated with the proposed amendments. These amendments would apply only to the decision-making process for inadmissibility undertaken by officials of the CBSA, IRCC and IRB.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that the proposed amendments would not result in positive or negative environmental effects; therefore, a strategic environmental assessment is not required.
Gender-based analysis plus
The proposed amendments would be limited in scope to whether a removal order is issued by the MD or the ID in three specific circumstances. Under the current framework, where inadmissibility is under the jurisdiction of the ID, they have no discretion to choose to not issue a removal order against an inadmissible person. If the ID is satisfied that the foreign national is inadmissible, they must issue a removal order. Accordingly, transferring the authority to the MD would have no impact on who is issued a removal order because currently, all cases reviewed by the ID must first be referred to them by the MD.
Statistics specific to misrepresentation of visa-exempt status were not available due to system limitations. Statistics from 2015 to 2018 for non-compliance with the requirement to submit to a medical examination show a 42% female and 58% male distribution, and statistics for non-compliance to appear for examination at a designated port of entry show a 31% female and 69% male distribution. The proposed amendments are not expected to affect this distribution. No gender-based analysis plus (GBA+) related impacts are anticipated as a result of these proposed amendments.
The intent of the proposed amendments is to deliver a balanced, efficient and cost-effective immigration enforcement program. These amendments would partially deliver on an outstanding commitment to address the underlying concerns raised by the Standing Senate Committee on National Security and Defence as articulated above. The amendments would also close residual policy gaps in the CBSA’s capacity to manage the border efficiently.
Overall, the proposed amendments would be in keeping with the original policy intent on the division of responsibilities for issuing removal orders, which has existed since the IRPA and the IRPR came into force. Namely, that the MD is meant to have responsibility for the issuance of removal orders in relatively straightforward cases that tend to require a lesser weighing of evidence. Having to refer the three inadmissibility case types outlined above to the ID unnecessarily extends the length of time before a removal order can be issued while increasing border integrity risks when the simpler MD process would be more efficient and effective.
Under the IRPR, MDs already have the authority to issue removal orders for other relatively straightforward inadmissibility grounds. The requirements of procedural fairness with respect to inadmissibility determination are well established and are successfully integrated within the current MD review function. Officers are trained prior to being delegated by the Minister to fulfil this important function, and this would remain the case moving forward with the proposed amendments.
Implementation, compliance and enforcement, and service standards
The proposed amendments to the IRPR would come into force on the day on which they are published. To support their coming into force, the CBSA would update field guidance (i.e. Operational Bulletins and Program Manual updates); this field guidance would be available to officials at the CBSA and at the IRCC. The proposed amendments would not create any new compliance and enforcement considerations as there would be no changes with respect to the grounds of inadmissibility themselves.
With respect to transitional cases, any foreign nationals who were alleged to be inadmissible and who were subsequently referred to the ID for a hearing prior to the coming into force of the proposed amendments would continue to have their cases proceed through the admissibility hearing process. All other cases would be determined by the MD.
Immigration Facilitation and Enforcement Policy Division
Canada Border Services Agency
100 Metcalfe Street
PROPOSED REGULATORY TEXT
Notice is given that the Governor in Council proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations under subsection 5(1) and paragraph 53(b) of the Immigration and Refugee Protection Act footnote a.
Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, mail or any other means, the representations should cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Catherine Dubuc, Director, Immigration Facilitation and Enforcement Policy Division, Canada Border Services Agency, 100 Metcalfe Street, Ottawa, Ontario K1A 0L8 (email: IEPU-UPELI@cbsa-asfc.gc.ca).
Ottawa, November 9, 2023
Assistant Clerk of the Privy Council
Regulations Amending the Immigration and Refugee Protection Regulations
1 (1) Subsection 228(1) of the Immigration and Refugee Protection Regulations footnote 5 is amended by adding the following after paragraph (a):
- (a.1) if the foreign national is inadmissible under paragraph 40(1)(a) of the Act on grounds of misrepresentation relating to their exemption from the requirement to obtain a temporary resident visa when applying for an electronic travel authorization, an exclusion order;
(2) Paragraph 228(1)(c) of the Regulations is amended by striking out “or” at the end of subparagraph (vi) and by adding the following after subparagraph (vii):
- (viii) failing to submit to a medical examination as required by paragraph 16(2)(b) of the Act, an exclusion order, or
- (ix) failing to appear for examination as required by subsection 18(1) of the Act when seeking to enter Canada at a port of entry, an exclusion order;
(3) Subsection 228(3) of the Regulations is replaced by the following:
Eligible claim for refugee protection
(3) If a claim for refugee protection is made and the claim has been determined to be eligible to be referred to the Refugee Protection Division or no determination has been made, a departure order is the applicable removal order in the circumstances set out in paragraph (1)(a.1) or any of subparagraphs (1)(c)(i), (iii) to (v), (viii) and (ix).
2 For greater certainty, subsection 228(1) of the Immigration and Refugee Protection Regulations, as it reads on the day on which these Regulations come into force, applies to a foreign national, as defined in subsection 2(1) of the Immigration and Refugee Protection Act, in respect of whom a report has not been referred to the Immigration Division for an admissibility hearing under subsection 44(2) of that Act before that day.
Coming into Force
3 These Regulations come into force on the day on which they are published in the Canada Gazette, Part II.
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