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Bill C-11

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Effect of decision

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

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.

Applications to Vacate

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.

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.

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.

Appeal to Refugee Appeal Division

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.

Restriction on appeals

(2) A determination that a refugee protection claim has been withdrawn or abandoned may not be appealed.

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.

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.

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.

DIVISION 3

PRE-REMOVAL RISK ASSESSMENT

Protection

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).

Exception

(2) Despite subsection (1), a foreign national 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;

    (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

    (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.

Restriction

(3) Refugee protection may not result from an application for protection if the foreign national

    (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 punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada;

    (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).

Consideration of application

113. Consideration of an application for protection shall be as follows:

    (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;

    (b) no hearing shall be held, unless the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;

    (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;

    (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

      (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

      (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.

Effect of decision

114. (1) A decision to allow the application for protection has

    (a) in the case of a foreign national not described in subsection 112(3), the effect of conferring refugee protection; and

    (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.

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.

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.

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.

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.

Exceptions

(2) Subsection (1) does not apply in the case of a foreign national

    (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

    (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.

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.

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.

PART 3

ENFORCEMENT

Human Smuggling and Trafficking

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.

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

    (a) on conviction on indictment

      (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

      (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

    (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.

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.

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

    (a) grievous bodily harm or death occurred during the commission of the offence;

    (b) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization;

    (c) the commission of the offence was for profit, whether or not any profit was realized; and

    (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.

Offences Related to Documents

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;

    (b) use such a document, including for the purpose of entering or remaining in Canada; or

    (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.

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