Immigration and Refugee Protection Act (S.C. 2001, c. 27)

Claimant Without Identification

Marginal note:Credibility

106 The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.

Decision on Claim for Refugee Protection

Marginal note:Decision

• 107 (1) The Refugee Protection Division shall accept a claim for refugee protection if it determines that the claimant is a Convention refugee or person in need of protection, and shall otherwise reject the claim.

• Marginal note:No credible basis

  (2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.

Marginal note:Manifestly unfounded

107.1 If the Refugee Protection Division rejects a claim for refugee protection, it must state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent.

Cessation of Refugee Protection

Marginal note:Rejection

• 108 (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:

  • (a) the person has voluntarily reavailed themself of the protection of their country of nationality;

  • (b) the person has voluntarily reacquired 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.

• Marginal note:Cessation of refugee protection

  (2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).

• Marginal note:Effect of decision

  (3) If the application is allowed, the claim of the person is deemed to be rejected.

• Marginal note:Exception

  (4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

Applications to Vacate

Marginal note:Vacation of refugee protection

• 109 (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

• Marginal note:Rejection of application

  (2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.

• Marginal note:Allowance of application

  (3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.

Designated Countries of Origin

Marginal note:Designation of countries of origin

• 109.1 (1) The Minister may, by order, designate a country, for the purposes of subsection 110(2) and section 111.1.

• Marginal note:Limitation

  (2) The Minister may only make a designation

  • (a) in the case where the number of claims for refugee protection made in Canada by nationals of the country in question in respect of which the Refugee Protection Division has made a final determination is equal to or greater than the number provided for by order of the Minister,

    • (i) if the rate, expressed as a percentage, that is obtained by dividing the total number of claims made by nationals of the country in question that, in a final determination by the Division during the period provided for in the order, are rejected or determined to be withdrawn or abandoned by the total number of claims made by nationals of the country in question in respect of which the Division has, during the same period, made a final determination is equal to or greater than the percentage provided for in the order, or

    • (ii) if the rate, expressed as a percentage, that is obtained by dividing the total number of claims made by nationals of the country in question that, in a final determination by the Division, during the period provided for in the order, are determined to be withdrawn or abandoned by the total number of claims made by nationals of the country in question in respect of which the Division has, during the same period, made a final determination is equal to or greater than the percentage provided for in the order; or

  • (b) in the case where the number of claims for refugee protection made in Canada by nationals of the country in question in respect of which the Refugee Protection Division has made a final determination is less than the number provided for by order of the Minister, if the Minister is of the opinion that in the country in question

    • (i) there is an independent judicial system,

    • (ii) basic democratic rights and freedoms are recognized and mechanisms for redress are available if those rights or freedoms are infringed, and

    • (iii) civil society organizations exist.

• Marginal note:Order of Minister

  (3) The Minister may, by order, provide for the number, period or percentages referred to in subsection (2).

• Marginal note:Statutory Instruments Act

  (4) An order made under subsection (1) or (3) is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.

Appeal to Refugee Appeal Division

Marginal note:Appeal

• 110 (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection.

• Marginal note:Notice of appeal

  (1.1) The Minister may satisfy any requirement respecting the manner in which an appeal is filed and perfected by submitting a notice of appeal and any supporting documents.

• Marginal note:Restriction on appeals

  (2) No appeal may be made in respect of any of the following:

  • (a) a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection of a designated foreign national;

  • (b) a determination that a refugee protection claim has been withdrawn or abandoned;

  • (c) a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded;

  • (d) subject to the regulations, a decision of the Refugee Protection Division in respect of a claim for refugee protection if

    • (i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and

    • (ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(e) to be referred to the Refugee Protection Division;

  • (d.1) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1);

  • (e) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that refugee protection has ceased;

  • (f) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection.

• Marginal note:Making of appeal

  (2.1) The appeal must be filed and perfected within the time limits set out in the regulations.

• Marginal note:Procedure

  (3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board.

• Marginal note:Time limits

  (3.1) Unless a hearing is held under subsection (6), the Refugee Appeal Division must make a decision within the time limits set out in the regulations.

• Marginal note:Evidence that may be presented

  (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.

• Marginal note:Exception

  (5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister.

• Marginal note:Hearing

  (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3)

  • (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal;

  • (b) that is central to the decision with respect to the refugee protection claim; and

  • (c) that, if accepted, would justify allowing or rejecting the refugee protection claim.

Marginal note:Decision

• 111 (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions:

  • (a) confirm the determination of the Refugee Protection Division;

  • (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or

  • (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate.

• (1.1) [Repealed, 2012, c. 17, s. 37]

• Marginal note:Referrals

  (2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that

  • (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and

  • (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division.

Regulations

Marginal note:Regulations

• 111.1 (1) The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting

  • (a) time limits for the provision of documents and information under subsection 99(3.1) or 100(4);

  • (b) time limits for the hearing referred to in subsection 100(4.1);

  • (c) exceptions to the application of paragraph 110(2)(d);

  • (d) time limits for the filing and perfecting of an appeal under subsection 110(2.1); and

  • (e) time limits for the making of a decision by the Refugee Appeal Division, the extension of those time limits and the circumstances in which they do not apply.

• Marginal note:Clarification — regulations made under paragraph (1)(b)

  (2) With respect to claimants who are nationals of a country that is, on the day on which their claim is made, a country designated under subsection 109.1(1), regulations made under paragraph (1)(b) may provide for time limits that are different from the time limits for other claimants.

DIVISION 3Pre-removal Risk Assessment

Protection

Marginal note:Application for protection

• 112 (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).

• Marginal note:Exception

  (2) Despite subsection (1), a person may not apply for protection if

  • (a) they are the subject of an authority to proceed issued under section 15 of the Extradition Act;

  • (b) they have made a claim to refugee protection that has been determined under paragraph 101(1)(e) to be ineligible;

  • (b.1) subject to subsection (2.1), less than 12 months, or, in the case of a person who is a national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since

    • (i) the day on which their claim for refugee protection was rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division, in the case where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review, or

    • (ii) in any other case, the latest of

      • (A) the day on which their claim for refugee protection was rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or, if there was more than one such rejection or determination, the day on which the last one occurred,

      • (B) the day on which their claim for refugee protection was rejected — unless it was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Appeal Division or, if there was more than one such rejection or determination, the day on which the last one occurred, and

      • (C) the day on which the Federal Court refused their application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their claim for refugee protection, unless that claim was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention; or

  • (c) subject to subsection (2.1), less than 12 months, or, in the case of a person who is a national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since

    • (i) the day on which their application for protection was rejected or determined to be withdrawn or abandoned by the Minister, in the case where no application was made to the Federal Court for leave to commence an application for judicial review, or

    • (ii) in any other case, the later of

      • (A) the day on which their application for protection was rejected or determined to be withdrawn or abandoned by the Minister or, if there was more than one such rejection or determination, the day on which the last one occurred, and

      • (B) the day on which the Federal Court refused their application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their application for protection.

  • (d) [Repealed, 2012, c. 17, s. 38]

• Marginal note:Exemption

  (2.1) The Minister may exempt from the application of paragraph (2)(b.1) or (c)

  • (a) the nationals — or, in the case of persons who do not have a country of nationality, the former habitual residents — of a country;

  • (b) the nationals or former habitual residents of a country who, before they left the country, lived in a given part of that country; and

  • (c) a class of nationals or former habitual residents of a country.

• Marginal note:Application

  (2.2) However, an exemption made under subsection (2.1) does not apply to persons in respect of whom, after the day on which the exemption comes into force, a decision is made respecting their claim for refugee protection by the Refugee Protection Division or, if an appeal is made, by the Refugee Appeal Division.

• Marginal note:Regulations

  (2.3) The regulations may govern any matter relating to the application of subsection (2.1) or (2.2) and may include provisions establishing the criteria to be considered when an exemption is made.

• Marginal note:Restriction

  (3) Refugee protection may not be conferred on an applicant who

  • (a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality;

  • (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years;

  • (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or

  • (d) is named in a certificate referred to in subsection 77(1).