Canadian Refugee Procedure/100-102 - Examination of Eligibility to Refer Claim
IRPA Sections 100-101: Examination of Eligibility to Refer ClaimEdit
Sections 100-102 of the Immigration and Refugee Protection Act read:
100 (1) An officer shall, after receipt of a claim referred to in subsection 99(3), determine whether the claim is eligible to be referred to the Refugee Protection Division and, if it is eligible, shall refer the claim in accordance with the rules of the Board. Burden of proof (1.1) The burden of proving that a claim is eligible to be referred to the Refugee Protection Division rests on the claimant, who must answer truthfully all questions put to them. Decision (2) The officer shall suspend consideration of the eligibility of the person’s claim if (a) a report has been referred for a determination, at an admissibility hearing, of whether the person is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality; or (b) the officer considers it necessary to wait for a decision of a court with respect to a claimant who is charged with an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years. Consideration of claim (3) The Refugee Protection Division may not consider a claim until it is referred by the officer. Documents and information to be provided (4) A person who makes a claim for refugee protection inside Canada at a port of entry and whose claim is referred to the Refugee Protection Division must provide the Division, within the time limits provided for in the regulations, with the documents and information — including in respect of the basis for the claim — required by the rules of the Board, in accordance with those rules. Date of hearing (4.1) The referring officer must, in accordance with the regulations, the rules of the Board and any directions of the Chairperson of the Board, fix the date on which the claimant is to attend a hearing before the Refugee Protection Division. Quarantine Act (5) If a traveller is detained or isolated under the Quarantine Act, the period referred to in subsections (1) and (3) does not begin to run until the day on which the detention or isolation ends. Ineligibility 101 (1) A claim is ineligible to be referred to the Refugee Protection Division if (a) refugee protection has been conferred on the claimant under this Act; (b) a claim for refugee protection by the claimant has been rejected by the Board; (c) a prior claim by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned; (c.1) the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws; (d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country; (e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). Serious criminality (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (b) in the case of inadmissibility by reason of a conviction outside Canada, the conviction is 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.
The process set out in ss. 100-102 of the Act is designed to be an expeditious summary reviewEdit
The Federal Court has held that the expeditious and relatively straightforward process set out in sections 100 to 102 of the IRPA is intended to screen certain claims out of the Refugee Protection Division's jurisdiction on the basis of a summary review by an immigration officer. This was so as Bill C-84, which created the predecessor to this regime in the 1980s, aimed to preclude individuals who had been certified to be a danger to the public from making a refugee claim. The previous legislation had allowed such individuals to make a claim; only if such a claim was successful would a decision be made concerning deportation. In the words of the Minister of the time, the intent of this legislation was to "close a loophole by which people who are criminals or terrorists can use the refugee claims system to defer their removal from Canada for many years".
See the commentary to Rules 26-28Edit
For a discussion of the interpretation of these provisions of the Act, see the commentary to Rules 26–28, particularly: Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility#Rule 28(1)(c): When is a claim ineligible to be referred under section 101 of the Act?
IRPA Section 102: Regulations and Safe Third Country AgreementEdit
Regulations 102 (1) The regulations may govern matters relating to the application of sections 100 and 101, may, for the purposes of this Act, define the terms used in those sections and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions (a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture; (b) making a list of those countries and amending it as necessary; and (c) respecting the circumstances and criteria for the application of paragraph 101(1)(e). Factors (2) The following factors are to be considered in designating a country under paragraph (1)(a): (a) whether the country is a party to the Refugee Convention and to the Convention Against Torture; (b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture; (c) its human rights record; and (d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection. Review (3) The Governor in Council must ensure the continuing review of factors set out in subsection (2) with respect to each designated country.
The Safe Third Country Agreement provisions are at s. 159 of the RegulationsEdit
See the commentary to s. 159 of the Regulation: Canadian Refugee Procedure/Safe Third Countries.
- Wangden v Canada (Citizenship and Immigration), 2008 FC 1230 at para 76.
- Alan Nash, International Refugee Pressures and the Canadian Public Policy Response, Discussion Paper, January 1989, Studies in Social Policy, page 58.
- Alan Nash, International Refugee Pressures and the Canadian Public Policy Response, Discussion Paper, January 1989, Studies in Social Policy, page 61-62.