Regulations Amending the Immigration and Refugee Protection Regulations: SOR/2018-60

Canada Gazette, Part II: Volume 152, Number 8

Registration

March 27, 2018

IMMIGRATION AND REFUGEE PROTECTION ACT

P.C. 2018-339 March 26, 2018

Whereas, pursuant to subsection 5(2) ^footnotea of the Immigration and Refugee Protection Act ^footnoteb, the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness have 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, Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, pursuant to subsection 5(1) and section 17 of the Immigration and Refugee Protection Act ^footnoteb, makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 (1) The portion of section 37 of the Immigration and Refugee Protection Regulations ^footnote1 before paragraph (a) is replaced by the following:

End of examination

37 (1) Subject to subsection (2), the examination of a person who seeks to enter Canada, or who makes an application to transit through Canada, ends only when

(2) Section 37 of the Regulations is amended by adding the following after subsection (1):

End of examination — claim for refugee protection

(2) The examination of a person who makes a claim for refugee protection at a port of entry or inside Canada other than at a port of entry ends when the later of the following occurs:

• (a) an officer determines that their claim is ineligible under section 101 of the Act or the Refugee Protection Division accepts or rejects their claim under section 107 of the Act;
• (b) a decision in respect of the person is made under subsection 44(2) of the Act and, in the case of a claim made at a port of entry, the person leaves the port of entry.

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.)

Issues

The Immigration and Refugee Protection Act (IRPA) authorizes an officer to proceed with an examination when a person makes an application for a decision under IRPA. The Immigration and Refugee Protection Regulations (IRPR) define the circumstances in which an examination begins, as well as when an examination ends. The IRPR define four ways to make an application for a decision under IRPA: (a) submitting an application in writing; (b) seeking to enter Canada in person; (c) seeking to transit through Canada; and (d) making a claim for refugee protection. The IRPR only define the end of the examination, however, for a person seeking to enter or transit through Canada. The IRPR do not define the end of the examination period for those making a claim for refugee protection. As a result, there is ambiguity concerning at which point a claimant for refugee protection ceases to be subject to an examination. The lack of clarity with respect to officers’ authorities has been the subject of litigation and has led to persons refusing officers’ directions to provide additional information relevant to their admissibility or to the eligibility of their claim to be referred to the Refugee Protection Division (RPD) for a refugee protection hearing. Regulatory amendments are required to address this ambiguity.

Background

Anyone who makes an application for any process under the IRPA, such as determining whether a person has a right to enter Canada or may become authorized to enter or remain in Canada, is subject to an examination by an officer. The examination is undertaken to determine whether or not the person meets the criteria applicable to the application, or is inadmissible. As part of an examination, an applicant is required to appear before an officer as directed, answer all questions truthfully, and produce any documents an officer considers necessary. Those who are found to be inadmissible to Canada could be subject to removal from Canada unless granted a specific remedy from the inadmissibility, such as a temporary resident permit.

Where a refugee claim is made at the port of entry, the examination of the refugee claimant is made by a Canada Border Services Agency (CBSA) officer. A CBSA officer is responsible for conducting the examination to identify any grounds of inadmissibility to Canada. Another CBSA officer (Minister’s delegate), upon consideration of all the facts available at that time, determines whether the grounds of inadmissibility identified by the first officer are well-founded, and whether the claim is eligible to be referred to the RPD of the Immigration and Refugee Board for a refugee protection hearing. Where a refugee claim is made from within Canada, the claim may be made to either a CBSA or Immigration, Refugees and Citizenship Canada (IRCC) officer, where the same identification of grounds of inadmissibility and determination of eligibility to be referred to the RPD are undertaken.

Applications for refugee protection are decided by the RPD. Before a refugee claim can be heard by the RPD, however, the refugee claim must be referred to the RPD for a hearing. A claim is ineligible to be referred to the RPD for a refugee protection hearing if any of the following applies: refugee protection has already been conferred upon the person; a claim for refugee protection by the person has been rejected by the RPD; a prior claim by the person was determined to be ineligible to be referred to the RPD or if a previous claim had been withdrawn or abandoned; the claimant has been recognized as a refugee by a country other than Canada and the claimant can be returned to that country (i.e. it is not permissible to obtain refugee status in multiple countries); the person came to Canada by a country designated by the IRPR other than the country of the applicant’s nationality or former habitual residence (the only country so designated to date has been the United States of America, as a result of the Safe Third Country Agreement); or the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

If a refugee claim is made to an officer, a decision on whether the claimant meets specific eligibility criteria must be made within three working days. If a determination of eligibility is not made within three working days of the claim being made to an officer, the claim is deemed referred to the RPD for a refugee protection hearing. The IRPA authorizes an officer to suspend and terminate the refugee protection hearing before the RPD where information comes to an officer’s attention that a claim is ineligible to be referred to the RPD after the claim has been referred but before the RPD has rendered a decision on the claim. If the claim is determined by an officer to be ineligible to be referred to the RPD, or the claim is ultimately rejected by the RPD, the individual could be subject to removal from Canada.

It is important to ensure that officers of IRCC and the CBSA have the ability to examine and interview a refugee claimant at any time up to the final disposition of the claim. This supports the integrity of the refugee determination system. It provides an opportunity to verify information and undertake further investigative action as the circumstances require, including suspension or termination of proceedings before the RPD where refugee claims have been determined to be ineligible.

Objectives

The objective of these amendments is to clarify when the examination of a person who makes a claim for refugee protection ends. The amendments will eliminate the current ambiguity with respect to officers’ authorities to question refugee claimants and require the refugee claimant to produce any evidence that an officer reasonably requires. This in turn will support an officer’s ability to collect and assess new information that could support a refugee claim being ineligible to be referred to the RPD.

Description

The amendments clarify that an officer (either from the CBSA or the IRCC) has authority to examine a refugee claimant until a decision on that claim has been made by the RPD. If a refugee claim has been determined to be ineligible to be referred to the RPD by either a CBSA or IRCC officer at an inland office, the authority to examine the refugee claimant ends. Where a refugee claim has been determined to be ineligible by a CBSA officer at a port of entry, the refugee claimant continues to be under examination until the Minister’s delegate review (i.e. in practice, this review is undertaken by a CBSA officer) of the inadmissibility report has been completed, the refugee claimant has been authorized to leave the port of entry, and leaves the port of entry.

During the period of examination, officers of either IRCC or the CBSA will be able to question refugee claimants and require the claimant to produce all relevant evidence and documents that the officer reasonably requires (e.g. documents that validate a person’s identity; criminal history; or involvement in organized crime, groups that pose a security risk, or government regimes involved in crimes against humanity).

“One-for-One” Rule

The “One-for-One” Rule does not apply, as these amendments only apply to individuals, not businesses.

Small business lens

The small business lens does not apply, as these amendments only apply to individuals, not businesses.

Consultation

On July 11, 2014, the following stakeholders were notified that consideration was being given to these regulatory amendments:

• Canadian Bar Association
• Canadian Association of Refugee Lawyers
• Canadian Association of Professional Immigration Consultants
• Canadian Council for Refugees
• Centre for Immigration Policy Reform
• United Nations High Commissioner for Refugees
• Association québécoise des avocats et avocates en droit de l’immigration
• Table de concertation des organismes au service des personnes réfugiées et immigrantes
• Ontario Council of Agencies Serving Immigrants
• British Columbia Civil Liberties Association
• Canadian Police Association
• Amnesty International Canada

Preliminary stakeholder consultation on the proposed end of examination amendments took place from July to August 2014. Twelve stakeholders were consulted. Three stakeholders responded with comments, and one stakeholder responded to inform the CBSA that their comments would be sent following prepublication of the amendments. There was no response from the remaining identified stakeholders.

The stakeholders who responded with comments expressed opposition to the proposed amendment. Their concern was that the new requirements would contemplate the possibility of a refugee claimant being required to answer questions from an officer while a refugee protection hearing is underway. Stakeholders were concerned that having a refugee claimant subject to two separate questioning regimes (by an officer in the context of an examination outside of the refugee protection hearing as well as by an officer appearing during a refugee protection hearing) could be unfair to the claimant.

In response, an operational bulletin will be issued to direct officers that have the authority to examine refugee claimants on how to address cases where information relating to ineligibility, in contrast to the merits of the claim, comes to the Minister’s attention while a hearing is in process. These directives will ensure that the need for any questioning of a refugee claimant by an officer outside of the hearing while a hearing is in process are not undertaken to advance matters that are best put before the RPD, such as credibility concerns or the merits of any particular refugee claim. Instead, officers seeking to examine a refugee claimant while a hearing is underway will be directed to limit their examination to circumstances that are outside of the jurisdiction of the RPD, such as grounds of ineligibility of the claim to be before the RPD, and not to the merits of the claim.

On June 20, 2015, these amendments were published in the Canada Gazette, Part I. At the time, they were published for comment in combination with other amendments to the IRPR (to introduce an application process for ministerial relief). While the two initiatives were originally presented together, they are unrelated. The two initiatives were subsequently decoupled to provide the Government of Canada with an opportunity to thoroughly consider proposed changes to the end of examination requirements in light of both the Government’s new and broader policy direction concerning refugees, and recent jurisprudence. Following this review, the original policy framework was determined to be consistent with the Government’s broader policy direction in this area, and so no changes were made. The changes introduced for the Ministerial relief application process were published in the Canada Gazette, Part II on March 22, 2017.

During the 2015 prepublication period, no comments were received from external stakeholders on the proposed amendments to end of examination. No additional changes have been made to the amendments following prepublication.

Rationale

The absence of specific language indicating when the examination of a refugee claimant ends has led to differing interpretations of the scope of either the Minister of Public Safety and Emergency Preparedness or the Minister of Immigration, Refugees and Citizenship Canada’s authority to require a refugee claimant to answer questions on matters relating to the claimant’s admissibility or to the eligibility of their claim to be referred to the RPD. This was at issue in Canada (Citizenship and Immigration) v. Paramo de Gutierrez (2016 FCA 211) where the Federal Court of Appeal (FCA) examined the IRPA and the IRPR specifically in relation to an officer’s jurisdiction when examining a refugee claimant. The FCA found the RPD’s interpretation that the IRPA authorizes an officer to examine a refugee claimant until a decision on the refugee claim has been made to be reasonable.

Despite this decision, the absence of specific language in the IRPR with respect to when examination ends for a refugee claimant could still allow for alternative interpretations, potentially leading to confusion on what an officer’s authorities are with respect to the examination of refugee claimants. For this reason, the end of examination for refugee claimants will be prescribed in the IRPR.

Qualitative costs and benefits

These amendments will not result in new costs or new activities for the Government of Canada or refugee applicants. The amendments clarify the period of time during which an officer is authorized to question a refugee claimant and request information relating to their admissibility or to the eligibility of their claim to be referred to the RPD. The amendments will not directly impact consumers, Canadian business, or Canadians, and therefore will not result in any additional costs.

Implementation, enforcement and service standards

As noted above, an operational bulletin will be issued to support the implementation of these amendments. This direction will be made available for officers who are authorized to examine refugee claimants in accordance with standard processes at the CBSA and IRCC. This will include publication in their respective online field guidance repositories. The guidance will include information related to the authority to examine refugee claimants, including previously articulated information related to ineligibility and when the examination of a claimant ends.

If an individual challenges a negative refugee decision and a case is referred back for a re-determination by the Federal Court, the FCA or the Supreme Court of Canada, then the individual will be under examination again while the claim is being re-determined. The authority to examine refugee claimants will not extend to a claimant whose refugee protection decision is subject to judicial review. This amendment will not provide the Minister of Public Safety and Emergency Preparedness nor the Minister of Immigration, Refugees and Citizenship Canada with any additional examination power to advance an application for cessation or vacation of refugee protection.

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