| Effect of
decision
|
(3) If the application is allowed, the claim
of the foreign national is deemed to be
rejected.
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| Exception
|
(4) Paragraph (1)(e) does not apply to a
foreign national 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.
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Applications to Vacate
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| 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 witholding material facts
relating to a relevant matter.
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| 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.
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| Allowance of
application
|
(3) If the application is allowed, the claim
of the foreign national is deemed to be rejected
and the decision that led to the conferral of
refugee protection is nullified.
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Appeal to Refugee Appeal Division
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| Appeal
|
110. (1) A foreign national 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
foreign national's claim for refugee
protection.
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| Restriction on
appeals
|
(2) A determination that a refugee
protection claim has been withdrawn or
abandoned may not be appealed.
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| Procedure
|
(3) The Refugee Appeal Division shall
proceed without a hearing, on the basis of the
record of the proceedings of the Refugee
Protection Division, and may accept written
submissions from the Minister, the person
who is the subject of the appeal, and a
representative or agent of the United Nations
High Commissioner for Refugees, and any
other person described in the rules of the
Board.
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| Decision
|
111. (1) After considering the appeal, the
Refugee Appeal Division shall make one of
the following decisions:
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(a) confirm the determination of the
Refugee Protection Division;
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(b) set aside the determination and
substitute a determination that, in its
opinion, should have been made; or
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(c) refer the matter to the Refugee
Protection Division for re-determination,
giving the directions to the Refugee
Protection Division that it considers
appropriate.
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| Referrals
|
(2) The Refugee Appeal Division shall
make the referral described in paragraph
(1)(c) if it is of the opinion that a hearing is
required or if it has allowed an appeal by the
Minister that was based on a question of the
claimant's credibility.
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|
Protection
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| Application
for protection
|
112. (1) A foreign national in Canada 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).
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| Exception
|
(2) Despite subsection (1), a foreign
national may not apply for protection if
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|
|
(a) they are the subject of an authority to
proceed issued under section 15 of the
Extradition Act;
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|
(b) they have made a claim to refugee
protection that has been determined under
paragraph 101(1)(e) to be ineligible;
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|
(c) in the case of a foreign national who has
not left Canada since the removal order
came into force, the prescribed period has
not expired; or
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|
(d) in the case of a foreign national who has
left Canada since the removal order came
into force, less than six months have passed
since they left Canada after their claim to
refugee protection was determined to be
ineligible, abandoned, withdrawn or
rejected, or their application for protection
was rejected.
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| Restriction
|
(3) Refugee protection may not result from
an application for protection if the foreign
national
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|
(a) is determined to be inadmissible on
grounds of security, violating human or
international rights or organized
criminality;
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(b) is determined to be inadmissible on
grounds of serious criminality with respect
to a conviction in Canada punished by a
term of imprisonment of at least two years
or with respect to a conviction outside
Canada;
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|
(c) made a claim to refugee protection that
was rejected on the basis of section F of
Article 1 of the Refugee Convention; or
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(d) is named in a certificate referred to in
subsection 77(1).
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| Consideration
of application
|
113. Consideration of an application for
protection shall be as follows:
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(a) an applicant whose claim to refugee
protection has been rejected may present
only new evidence that arose after, or was
not reasonably available at the time of, the
rejection;
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|
(b) no hearing shall be held, unless the
Minister, on the basis of prescribed factors,
is of the opinion that a hearing is required;
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|
(c) in the case of a foreign national not
described in subsection 112(3),
consideration shall be on the basis of
sections 96 to 98;
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|
(d) in the case of a foreign national
described in subsection 112(3),
consideration shall be on the basis of the
factors set out in section 97 and
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(i) in the case of an applicant for
protection who is inadmissible on
grounds of serious criminality, whether
they are a danger to the public in Canada,
or
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(ii) in the case of any other applicant,
whether it would be contrary to the
national interest, because of the nature
and severity of the acts committed or
because of the danger it would constitute
to the security of Canada, to allow their
application.
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| Effect of
decision
|
114. (1) A decision to allow the application
for protection has
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|
(a) in the case of a foreign national not
described in subsection 112(3), the effect of
conferring refugee protection; and
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|
(b) in the case of a foreign national
described in subsection 112(3), the effect of
staying the removal order with respect to a
country or place in respect of which the
foreign national was determined to be in
need of protection.
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|
| Cancellation
of stay
|
(2) If the Minister is of the opinion that the
circumstances surrounding a stay of the
enforcement of a removal order have changed,
the Minister may re-examine, in accordance
with paragraph 113(d) and the regulations, the
grounds on which the application was allowed
and may cancel the stay.
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|
| Vacation of
determination
|
(3) If the Minister is of the opinion that a
decision to allow an application for protection
was obtained as a result of directly or
indirectly misrepresenting or witholding
material facts on a relevant matter, the
Minister may vacate the decision.
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|
| Effect of
vacation
|
(4) If a decision is vacated under subsection
(3), it is nullified and the application for
protection is deemed to have been rejected.
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|
|
Principle of Non-refoulement
|
|
| Protection
|
115. (1) A protected person or a foreign
national who is recognized as a Convention
refugee by another country to which the
foreign national may be returned shall not be
removed from Canada to a country where they
would be at risk of persecution for reasons of
race, religion, nationality, membership in a
particular social group or political opinion or
at risk of torture or cruel and unusual
treatment or punishment.
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|
| Exceptions
|
(2) Subsection (1) does not apply in the case
of a foreign national
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|
|
(a) who is inadmissible on grounds of
serious criminality and who constitutes, in
the opinion of the Minister, a danger to the
public in Canada; or
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|
(b) who is inadmissible on grounds of
security, violating human or international
rights or organized criminality if, in the
opinion of the Minister, it would be contrary
to the national interest for the foreign
national to remain in Canada on the basis of
the nature and severity of acts committed or
of danger to the security of Canada.
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| Removal of
refugee
|
(3) A foreign national, after a determination
under paragraph 101(1)(e) that the foreign
national's claim is ineligible, is to be sent to
the country from which the foreign national
came to Canada, but may be sent to another
country if that country is designated under
subsection 102(1) or if the country from which
the foreign national came to Canada has
rejected their claim for refugee protection.
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|
| Regulations
|
116. The regulations may provide for any
matter relating to the application of this
Division, and may include provisions
respecting procedures to be followed with
respect to an application for protection.
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| Organizing
entry into
Canada
|
117. (1) No person shall knowingly
organize the coming into Canada of one or
more persons who are not in possession of a
visa, passport or other document required by
this Act.
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| Penalties -
fewer than 10
persons
|
(2) A person who contravenes subsection
(1) by organizing the coming into Canada of
fewer than 10 persons is guilty of an offence
and liable
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|
(a) on conviction on indictment
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|
(i) for a first offence, to a fine of not more
than $500,000 or to a term of
imprisonment of not more than 10 years,
or to both, or
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|
(ii) for a subsequent offence, to a fine of
not more than $1,000,000 or to a term of
imprisonment of not more than 14 years,
or to both; and
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|
|
(b) on summary conviction, to a fine of not
more than $100,000 or to a term of
imprisonment of not more than two years,
or to both.
|
|
| Penalty -
10 persons or
more
|
(3) A person who contravenes subsection
(1) by organizing the coming into Canada of
a group of 10 persons or more is guilty of an
offence and liable to a fine of not more than
$1,000,000 or to life imprisonment, or to both.
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|
| No
proceedings
without
consent
|
(4) No proceedings for an offence under this
section may be instituted except by or with the
consent of the Attorney General of Canada.
|
|
| Offence -
trafficking in
persons
|
118. (1) No person shall knowingly
organize the coming into Canada of one or
more persons by means of abduction, fraud,
deception or use or threat of force or coercion.
|
|
| Definition of
``organize''
|
(2) For the purpose of subsection (1),
``organize'', with respect to persons, includes
their recruitment or transportation and, after
their entry into Canada, the receipt or
harbouring of those persons.
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|
| Disembarking
persons at sea
|
119. A person in charge of a ship or a
member of the crew shall not disembark a
person or group of persons at sea for the
purpose of inducing, aiding or abetting them
to come into Canada in contravention of this
Act.
|
|
| Penalties
|
120. A person who contravenes section 118
or 119 is guilty of an offence and liable on
conviction by way of indictment to a fine of
not more than $1,000,000 or to life
imprisonment, or to both.
|
|
| Aggravating
factors
|
121. (1) The court, in determining the
penalty to be imposed under subsection 117(2)
or (3) or section 120, shall take into account
whether
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|
|
(a) grievous bodily harm or death occurred
during the commission of the offence;
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|
|
(b) the commission of the offence was for
the benefit of, at the direction of or in
association with a criminal organization;
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|
(c) the commission of the offence was for
profit, whether or not any profit was
realized; and
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|
|
(d) a person was subjected to humiliating or
degrading treatment, including with respect
to work or health conditions or sexual
exploitation as a result of the commission of
the offence.
|
|
| Definition of
``criminal
organization''
|
(2) For the purposes of paragraph (1)(b),
``criminal organization'' means an
organization that is believed on reasonable
grounds to be or to have been engaged in
activity that is part of a pattern of criminal
activity planned and organized by a number of
persons acting in concert in furtherance of the
commission of an offence punishable under an
Act of Parliament by way of indictment or in
furtherance of the commission of an offence
outside Canada that, if committed in Canada,
would constitute such an offence.
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|
|
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|
|
| Documents
|
122. (1) No person shall, in order to
contravene this Act,
|
|
|
|
(a) possess a passport, visa or other
document, of Canadian or foreign origin,
that purports to establish or that could be
used to establish a person's identity;
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|
|
|
(b) use such a document, including for the
purpose of entering or remaining in
Canada; or
|
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|
|
(c) import, export or deal in such a
document.
|
|
| Proof of
offence
|
(2) Proof of the matters referred to in
subsection (1) in relation to a forged document
or a document that is blank, incomplete,
altered or not genuine is, in the absence of
evidence to the contrary, proof that the person
intends to contravene this Act.
|
|
| Penalty
|
123. (1) Every person who contravenes
|
|
|
|
(a) paragraph 122(1)(a) is guilty of an
offence and liable on conviction on
indictment to a term of imprisonment of up
to five years; and
|
|
|
|
(b) paragraph 122(1)(b) or (c) is guilty of an
offence and liable on conviction on
indictment to a term of imprisonment of up
to 14 years.
|
|
| Aggravating
factors
|
(2) The court, in determining the penalty to
be imposed, shall take into account whether
|
|
|
|
(a) the commission of the offence was for
the benefit of, at the direction of or in
association with a criminal organization as
defined in subsection 121(2); and
|
|
|
|
(b) the commission of the offence was for
profit, whether or not any profit was
realized.
|
|