42-43-44 ELIZABETH II

CHAPTER 15

An Act to amend the Immigration Act and the Citizenship Act and to make a consequential amendment to the Customs Act

[Assented to 15th June, 1995]

      Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. I-2; R.S., c. 31 (1st Supp.), cc. 10, 46 (2nd Supp.), c. 30 (3rd Supp.), cc. 1, 28, 29, 30 (4th Supp.); 1990, cc. 8, 16, 17, 38, 44; 1992, cc. 1, 47, 49, 51; 1993, c. 28; 1994, c. 26

IMMIGRATION ACT

1992, c. 49, s. 1(3)

1. (1) The definition ``exclusion order'' in subsection 2(1) of the Immigration Act is replaced by the following:

``exclusion order''
« mesure d'exclusion »

``exclusion order'' means an exclusion order made under subsection 23(4) or (4.01), 32(5), 73(2) or 74(1) or (3);

1992, c. 49, s. 1(5)

(2) Paragraph (c) of the definition ``mesure d'expulsion'' in subsection 2(1) of the French version of the Act is replaced by the following:

      c) de la mesure d'interdiction de séjour devenue une mesure d'expulsion conformément au paragraphe 32.02(1).

(3) The definition ``deportation order'' in subsection 2(1) of the Act is amended by striking out the word ``and'' at the end of paragraph (b) and by adding the following after paragraph (c):

      (d) a departure notice that is deemed to be a deportation order pursuant to section 113 of An Act to amend the Immigration Act and other Acts in consequence thereof, chapter 49 of the Statutes of Canada, 1992, and

      (e) a conditional departure notice or a conditional exclusion order that becomes a deportation order pursuant to section 26 of An Act to amend the Immigration Act and the Citizenship Act and to make a consequential amendment to the Customs Act, assented to during the first session of the thirty-fifth Parliament;

1992, c. 49, s. 11(1)

2. (1) The portion of paragraph 19(1)(c.1) of the Act after subparagraph (ii) is replaced by the following:

    except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;

(2) Paragraph 19(2)(b) of the Act is amended by striking out the word ``or'' at the end of subparagraph (i), by adding the word ``or'' at the end of subparagraph (ii) and by adding the following after subparagraph (ii):

      (iii) have been convicted in Canada under any Act of Parliament of a summary conviction offence, other than an offence designated as a contravention under the Contraventions Act, and there are reasonable grounds to believe have been convicted outside Canada of an offence that, if committed in Canada, would constitute a summary conviction offence under any Act of Parliament

1992, c. 49, s. 13(3)

3. (1) The portion of subsection 23(3) of the Act before paragraph (a) is replaced by the following:

Where person not allowed into Canada or granted admission

(3) Where a senior immigration officer adjourns the examination of a person who is the subject of a report made pursuant to paragraph 20(1)(a) or does not let a person come into Canada pursuant to section 22 and does not grant admission to or otherwise authorize the person to come into Canada pursuant to subsection (1) or (2), the officer may, subject to subsections (4), (4.01), (4.2) and (6),

1992, c. 49, s. 13(4)

(2) Subsections 23(4) and (4.1) of the Act are replaced by the following:

Exclusion order

(4) Subject to section 28, a senior immigration officer shall allow a person to leave Canada forthwith or make an exclusion order against the person where the senior immigration officer receives a report made pursuant to paragraph 20(1)(a) in respect of the person and the senior immigration officer is satisfied that

    (a) the person is a member of

      (i) the class of persons referred to in paragraph 19(1)(i), or

      (ii) the class of persons referred to in paragraph 19(2)(d) by reason of the fact that the person does not possess a valid and subsisting passport, visa or student or employment authorization and was not granted landing or was granted landing but later became subject to a removal order; and

    (b) the person is not a member of an inadmissible class other than an inadmissible class referred to in paragraph (a).

Other powers of senior immigration officer

(4.01) Subject to section 28, a senior immigration officer may allow a person to leave Canada forthwith, make an exclusion order against the person on the basis that the person is a member of either or both of the inadmissible classes described in paragraph (a) or, subject to subsections (4.3) and (5), cause an inquiry to be held as soon as is reasonably practicable concerning whether the person is a member of any or all of the inadmissible classes described in paragraph (a) or (b) where the senior immigration officer receives a report made pursuant to paragraph 20(1)(a) in respect of the person and is satisfied that

    (a) the person is a member of

      (i) the inadmissible class described in paragraph 19(1)(i), or

      (ii) the inadmissible class described in paragraph 19(2)(d) by reason of the fact that the person does not possess a valid and subsisting passport, visa or student or employment authorization and was not granted landing or was granted landing but later became subject to a removal order; and

    (b) the person is a member of an inadmissible class other than an inadmissible class referred to in paragraph (a).

Duty to provide information

(4.1) Every person referred to in subsection (4) or (4.01) shall truthfully provide such information as may be required by the senior immigration officer for the purpose of establishing whether the person is to be allowed to come into Canada or may be granted admission.

1992, c. 49, s. 13(4)

(3) The portion of subsection 23(4.2) of the Act before paragraph (a) is replaced by the following:

Inquiry or permission to leave Canada

(4.2) Subject to subsections (4.3) and (5), where a senior immigration officer does not make an exclusion order under subsection (4) or (4.01), or a conditional departure order under subsection 28(1), the senior immigration officer shall

4. Paragraph 24(1)(b) of the Act is replaced by the following:

    (b) a removal order has been made against that person and the order is not quashed or its execution is not stayed pursuant to subsection 73(1).

1992, c. 49, s. 16(2)

5. (1) The portion of paragraph 27(1)(a.1) of the Act after subparagraph (ii) is replaced by the following:

    except a person who has satisfied the Minister that the person has been rehabilitated and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;

(2) Section 27 of the Act is amended by adding the following after subsection (2):

For greater certainty

(2.01) For greater certainty,

    (a) a person described in paragraph (1)(a) includes a person who, if applying for landing, would not or might not be granted landing by reason of being a member of an inadmissible class referred to in that paragraph;

    (b) a person described in paragraph (2)(a) includes a person who, if applying for entry, would not or might not be granted entry by reason of being a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c); and

    (c) for the purposes of this Act, a person is deemed to be a member of the inadmissible class by reason of which the person is described in paragraph (1)(a) or (2)(a), as the case may be.

1992, c. 49, s. 16(10)

(3) Paragraph 27(3)(a) of the Act is replaced by the following:

    (a) direct that a determination be made with respect to any or all of the allegations mentioned in the report where the person is a person described in

      (i) paragraph (2)(a) by reason of paragraph 19(2)(d),

      (ii) paragraph (2)(e) by reason of paragraph 26(1)(c), or

      (iii) paragraph (2)(h) or (k); or

1992, c. 49, s. 16(10)

(4) Paragraph 27(4)(b) of the Act is replaced by the following:

    (b) make a departure order against the person if the senior immigration officer is satisfied that the person is a person described in

      (i) paragraph (2)(a) by reason of paragraph 19(2)(d),

      (ii) paragraph (2)(e) by reason of paragraph 26(1)(c), or

      (iii) paragraph (2)(h) or (k).

1992, c. 49, s. 16(10)

(5) Subsection 27(6) of the Act is replaced by the following:

Inquiry

(6) A senior immigration officer shall cause an inquiry to be held concerning a person as soon as is reasonably practicable where the senior immigration officer receives a direction made pursuant to paragraph (3)(b).

1992, c. 49, s. 17

6. (1) Subsection 28(1) of the Act is replaced by the following:

Conditional departure order

28. (1) Where a senior immigration officer is of the opinion that a person who claims to be a Convention refugee is eligible to have their claim referred to the Refugee Division and is a person in respect of whom the senior immigration officer would, but for this section, have made an exclusion order under subsection 23(4) or (4.01) or a departure order under subsection 27(4), the senior immigration officer shall make a conditional departure order against the person.

(2) Subsection 28(2) of the Act is amended by adding the following after paragraph (a):

    (a.1) the person is determined by a senior immigration officer not to be eligible to make a claim to be a Convention refugee and has been so notified;

1992, c. 49, s. 35

7. Subsection 44(5) of the Act is replaced by the following:

Deemed single claim

(5) Subject to sections 46.3 and 46.4, where a person makes more than one claim to be a Convention refugee, those claims are, for the purposes of this Act, deemed to be a single claim.

1992, c. 49, s. 35

8. Paragraph 45(1)(b) of the Act is replaced by the following:

    (b) if the person is the subject of a report under subsection 20(1) or 27(1) or (2) or has been arrested pursuant to subsection 103(2), take the appropriate action referred to in any of subsections 23(4), (4.01) or (4.2) or 27(4) or (6) or section 28.

9. Paragraph 46.01(1)(e) of the Act is amended by striking out the word ``or'' at the end of subparagraph (i) and by adding the following after subparagraph (ii):

      (iii) a person described in subparagraph 27(1)(a.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada, or

      (iv) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister is of the opinion that the person constitutes a danger to the public in Canada.

1992, c. 49, s. 40(3)

10. (1) Paragraph 46.07(3)(b) of the Act is replaced by the following:

    (b) quash the order made with respect to that person and take the appropriate action under subsection 23(4), (4.01) or (4.2) or 27(4) or (6) or section 32.

1992, c. 49, s. 40(3)

(2) The portion of subsection 46.07(5) of the Act before paragraph (a) is replaced by the following:

Additional allegations

(5) In making the determination referred to in subsection (1.1) or (2) and in taking the appropriate action with respect to a person under subsection 23(4), (4.01) or (4.2) or 27(4) or (6) or section 32, the senior immigration officer or adjudicator may take into consideration

11. (1) The Act is amended by adding the following after section 46.07:

Notification to Refugee Division by senior immigration officer

46.1 (1) A senior immigration officer shall forthwith notify the Refugee Division and, in the circumstances described in subsection 23(4.01) or (4.2) or 27(6), shall cause an inquiry to be held concerning the person as soon as is reasonably practicable where, after a person's claim has been referred to the Refugee Division, the senior immigration officer believes on reasonable grounds that

    (a) the person is a member of an inadmissible class described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i);

    (b) the person is a person described in subparagraph 27(1)(a.1)(i); or

    (c) the person is a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.

Suspension of consideration of case

(2) On being notified pursuant to subsection (1), the Refugee Division shall suspend its consideration of the case and shall

    (a) continue its consideration of the case, where it receives notice that a senior immigration officer has made a determination under paragraph 45(1)(a) that the person is eligible to have their claim determined by the Refugee Division; or

    (b) terminate its consideration of the case, where it receives notice that a senior immigration officer has made a determination under paragraph 45(1)(a) that the person is not eligible to have their claim determined by the Refugee Division.

Resumption of consideration of case

46.2 (1) A senior immigration officer shall request that the Refugee Division forthwith resume its consideration of a person's claim where the senior immigration officer believes on reasonable grounds that, because a final decision has been made in the matter, the person to whom section 46.1 applies is no longer a member of an inadmissible class referred to in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) or a person described in subparagraph 27(1)(a.1)(i) or paragraph 27(1)(d).

Effect

(2) Where subsection (1) applies and, immediately before the decision referred to in paragraph 46.1(2)(b) was made, the person was subject to a removal order on a basis other than that the person is a person referred to in subsection 46.1(1), the person is deemed to be subject to a conditional departure order or a conditional deportation order, as the case may be, from the day on which the person ceases to belong to an inadmissible class referred to, or to be a person described, in that subsection.

Application of certain provisions

(3) Subsections 28(2) and 32.1(6) apply in respect of a conditional order referred to in subsection (2).

Multiple claims

46.3 (1) Where a person's claim has been referred to the Refugee Division, a senior immigration officer shall forthwith notify the Refugee Division where