Bill C-11

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C-11

Third Session, Fortieth Parliament,

59 Elizabeth II, 2010

HOUSE OF COMMONS OF CANADA

BILL C-11

An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act

first reading, March 30, 2010

MINISTER OF CITIZENSHIP, IMMIGRATION AND MULTICULTURALISM

90554

RECOMMENDATION

Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act”.

SUMMARY

This enactment amends the Immigration and Refugee Protection Act, primarily in respect of the processing of refugee claims referred to the Immigration and Refugee Board. In particular, the enactment

(a) provides for the referral of a refugee claimant to an interview with an Immigration and Refugee Board official, who is to collect information and schedule a hearing before the Refugee Protection Division;

(b) provides that the members of the Refugee Protection Division are appointed in accordance with the Public Service Employment Act;

(c) provides for the coming into force, no more than two years after the day on which the enactment receives royal assent, of the provisions of the Immigration and Refugee Protection Act that permit a claimant to appeal a decision of the Refugee Protection Division to the Refugee Appeal Division;

(d) authorizes the Minister to designate, in accordance with the process and criteria established by the regulations, countries whose nationals are precluded from appealing to the Refugee Appeal Division;

(e) provides clarification with respect to the type of evidence that may be put before the Refugee Appeal Division and the circumstances in which that Division may hold a hearing;

(f) prohibits a person whose claim for refugee protection has been rejected from applying for a temporary resident permit or applying to the Minister for protection if less than 12 months have passed since their claim was rejected;

(g) authorizes the Minister, in respect of applications for protection, to exempt nationals, or classes of nationals, of a country or part of a country from the 12-month prohibition;

(h) provides clarification with respect to the Minister’s authority to grant permanent resident status or an exemption from any obligations of the Act on humanitarian and compassionate grounds or on public policy grounds;

(i) limits the circumstances in which the Minister may examine requests for permanent resident status or for an exemption from any obligations of the Act on humanitarian and compassionate grounds; and

(j) enacts transitional provisions respecting the processing of pending claims by the Minister or the Immigration and Refugee Board.

The enactment also amends the Federal Courts Act to increase the number of Federal Court judges.

Also available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca

3rd Session, 40th Parliament,

59 Elizabeth II, 2010

house of commons of canada

BILL C-11

An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act

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

SHORT TITLE

Short title

1. This Act may be cited as the Balanced Refugee Reform Act.

2001, c. 27

IMMIGRATION AND REFUGEE PROTECTION ACT

2. Paragraph 16(2)(b) of the Immigration and Refugee Protection Act is replaced by the following:

(b) subject to the regulations, the foreign national must submit to a medical examination.

3. Section 24 of the Act is amended by adding the following after subsection (3):

Restriction

(4) A foreign national whose claim for refugee protection has been rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division may not request a temporary resident permit if less than 12 months have passed since their claim was last rejected or determined to be withdrawn or abandoned.

2008, c. 28, s. 117

4. (1) Subsection 25(1) of the Act is replaced by the following:

Humanitarian and compassionate considerations — request of foreign national

25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

Payment of fees

(1.1) The Minister is seized of a request referred to in subsection (1) only if the applicable fees in respect of that request have been paid.

Exceptions

(1.2) The Minister may not examine the request if

(a) the foreign national has already made such a request and the request is pending;

(b) the foreign national has made a claim for refugee protection and their eligibility has not been determined or the claim is before the Refugee Protection Division or the Refugee Appeal Division; or

(c) less than 12 months have passed since the foreign national’s claim for refugee protection was last rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division.

Non-application of certain factors

(1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1).

(2) Subsection 25(2) of the French version of the Act is replaced by the following:

Critères provinciaux

(2) Le statut de résident permanent ne peut toutefois être octroyé à l’étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables.

5. The Act is amended by adding the following after section 25:

Humanitarian and compassionate considerations — Minister’s own initiative

25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

Exemption

(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).

Provincial criteria

(3) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.

Public policy considerations

25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by public policy considerations.

Exemption

(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).

Provincial criteria

6. The portion of section 26 of the Act before paragraph (a) is replaced by the following:

Regulations

26. The regulations may provide for any matter relating to the application of sections 18 to 25.2, and may include provisions respecting

2008, c. 3, s. 3

7. Paragraph 36(3)(e) of the Act is replaced by the following:

(e) inadmissibility under subsections (1) and (2) may not be based on an offence

(i) designated as a contravention under the Contraventions Act,

(ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or

(iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.

8. Section 91 of the Act is replaced by the following:

Regulations

91. The regulations may govern who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board, including an interview before an official referred to in subsection 100(4.1).

9. Paragraph 94(2)(e) of the Act is replaced by the following:

(e) the number of persons granted permanent resident status under each of subsections 25(1), 25.1(1) and 25.2(1); and

10. Paragraphs 95(1)(a) and (b) of the French version of the Act are replaced by the following:

a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié au sens de la Convention ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection;

b) la Commission lui reconnaît la qualité de réfugié au sens de la Convention ou celle de personne à protéger;

11. (1) Section 100 of the Act is amended by adding the following after subsection (1):

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.

(2) Subsection 100(4) of the Act is replaced by the following:

Duty of claimant

(4) A person whose claim is referred to the Refugee Protection Division must attend an interview with an official of the Board on a date fixed by the referring officer in accordance with the rules of the Board and must at the interview produce all documents and information required by those rules.

Hearing — Refugee Protection Division

(4.1) The official of the Board who conducts the interview must, in accordance with the rules of the Board and any directions of its Chairperson, fix the date on which the claimant is to attend a hearing before the Refugee Protection Division.

12. The Act is amended by adding the following after section 109:

Designated Countries of Origin

Designation of countries of origin

109.1 (1) The Minister may, by order, for the purposes of subsection (3), designate a country or part of a country or a class of nationals of a country if, in the Minister’s opinion, they meet the criteria established by the regulations.

Statutory Instruments Act

(2) An order referred to in subsection (1) is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.

No appeal to Refugee Appeal Division

(3) Neither the person who is the subject of a decision of the Refugee Protection Division nor the Minister may appeal against that decision to the Refugee Appeal Division if the person

(a) is a national of a country that was, on the day on which the decision was made, a country designated under subsection (1);

(b) is a national of a country of which a part was, on the day on which the decision was made, a part designated under subsection (1) and the person lived in that part before they left the country; or

(c) belongs to a class of nationals of a country that was, on the day on which the decision was made, a class designated under subsection (1).

Regulations

(4) The regulations may govern matters relating to the application of this section and may include provisions establishing the criteria to be applied and the process to be followed with respect to a designation made under subsection (1).

13. (1) Subsection 110(1) of the Act is replaced by the following:

Appeal

110. (1) Subject to subsection 109.1(3), a person or the Minister may appeal, in accord- ance 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, or a decision of the Refugee Protection Division rejecting an application by the Minister for a determination that refugee protection has ceased or an application by the Minister to vacate a decision to allow a claim for refugee protection.

(2) Subsection 110(3) of the Act is replaced by the following:

Procedure

(3) Subject to subsections (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 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.

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.

Exception

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

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

14. Subsection 111(2) of the Act is replaced by the following:

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.

15. (1) Subsection 112(2) of the Act is amended by adding the following after paragraph (b):

(b.1) subject to subsection (2.1), less than 12 months have passed since their claim for refugee protection was last 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 Protection Division or the Refugee Appeal Division;

(2) Section 112 of the Act is amended by adding the following after subsection (2):

Exemption

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

(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

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.

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.

16. Paragraph 113(a) of the French version of the Act is replaced by the following:

a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’aurait pas normalement présentés, dans les circonstances, au moment du rejet;

17. The Act is amended by adding the following after section 152:

Oath or affirmation of office

152.1 The Chairperson and other members of the Board must swear the oath or give the solemn affirmation of office set out in the rules of the Board.

18. (1) The portion of subsection 153(1) of the Act before paragraph (a) is replaced by the following:

Chairperson and other members

153. (1) The Chairperson and members of the Refugee Appeal Division and Immigration Appeal Division

(2) Paragraph 153(1)(b) of the Act is repealed.

19. (1) Paragraphs 159(1)(b) to (d) of the Act are replaced by the following:

(b) may at any time assign a member appointed under paragraph 153(1)(a) to the Refugee Appeal Division or the Immigration Appeal Division;

(c) may at any time, despite paragraph 153(1)(a), assign a member of the Refugee Appeal Division or the Immigration Appeal Division to work in another regional or district office to satisfy operational requirements, but an assignment may not exceed 120 days without the approval of the Governor in Council;

(d) may designate, from among the full-time members appointed under paragraph 153(1)(a), coordinating members for the Refugee Appeal Division or the Immigration Appeal Division;

(2) Paragraph 159(1)(h) of the Act is replaced by the following:

(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties; and

(3) Subsection 159(2) of the Act is replaced by the following:

Delegation

(2) The Chairperson may delegate any of his or her powers under this Act to a member of the Board, except that

(a) powers referred to in subsection 161(1) may not be delegated;

(b) powers referred to in paragraphs (1)(a) and (i) may be delegated to the Executive Director of the Board;

(c) powers in relation to the Immigration Appeal Division and the Refugee Appeal Division may only be delegated to the Deputy Chairperson, the Assistant Deputy Chairpersons, or other members, including coordinating members, of either of those Divisions; and

(d) powers in relation to the Immigration Division or the Refugee Protection Division may only be delegated to the Deputy Chairperson, the Assistant Deputy Chairpersons or other members, including coordinating members, of that Division.

20. The portion of subsection 161(1) of the Act before paragraph (b) is replaced by the following:

Rules

161. (1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons, the Chairperson may make rules respecting

(a) the referral of a claim for refugee protection to the Refugee Protection Division and the conduct of the interview referred to in subsection 100(4);

(a.1) the factors to be taken into account in fixing or changing the date of an interview referred to in subsection 100(4) and in fixing the date of a hearing referred to in subsection 100(4.1);

(a.2) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, the priority to be given to proceedings, the notice that is required and the period in which notice must be given;

21. Section 163 of the Act is replaced by the following:

Composition of panels

163. Matters before a Division must be conducted before a single member unless, with respect to a matter before the Refugee Appeal Division or the Immigration Appeal Division, the Chairperson is of the opinion that a panel of three members should be constituted.

22. Section 165 of the Act is replaced by the following:

Powers of a commissioner

165. The Refugee Protection Division, the Refugee Appeal Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing.

23. Subsection 167(1) of the Act is replaced by the following:

Right to counsel

167. (1) A person who is the subject of Board proceedings and the Minister may, at their own expense, be represented by legal or other counsel.

24. Subsection 168(1) of the Act is replaced by the following:

Abandonment of proceeding

168. (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to attend the interview referred to in subsection 100(4), to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.

25. Paragraph 169(c) of the Act is replaced by the following:

26. The Act is amended by adding the following before section 170:

Composition

169.1 (1) The Refugee Protection Division consists of the Deputy Chairperson, Assistant Deputy Chairpersons and other members, including coordinating members, necessary to carry out its functions.

Public Service Employment Act

(2) The members of the Refugee Protection Division are appointed in accordance with the Public Service Employment Act.

27. Section 170 of the Act is amended by adding the following after paragraph (d):

(d.1) may question the witnesses, including the person who is the subject of the proceeding;

28. (1) Paragraph 171(a) of the Act is replaced by the following:

(a) the Division must give notice of any hearing to the Minister and to the person who is the subject of the appeal;

(a.1) subject to subsection 110(4), if a hearing is held, the Division must give the person who is the subject of the appeal and the Minister the opportunity to present evidence, question witnesses and make submissions;

(a.2) the Division is not bound by any legal or technical rules of evidence;

(a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances;

(a.4) the Minister may, after giving notice in accordance with the rules, intervene in the appeal, including for the purpose of filing submissions;

(2) Paragraph 171(c) of the French version of the Act is replaced by the following:

c) la décision du tribunal constitué de trois commissaires a la même valeur de précédent pour le tribunal constitué d’un commissaire unique et la Section de la protection des réfugiés que celle qu’une cour d’appel a pour une cour de première instance.

29. Section 172 of the Act is replaced by the following:

Composition

172. (1) The Immigration Division consists of the Deputy Chairperson, Assistant Deputy Chairpersons and other members necessary to carry out its functions.

Public Service Employment Act

(2) The members of the Immigration Division are appointed in accordance with the Public Service Employment Act.

30. Subsection 176(1) of the Act is replaced by the following:

Request

176. (1) The Chairperson may request the Minister to decide whether any member of the Immigration Appeal Division or the Refugee Appeal Division should be subject to remedial or disciplinary measures for a reason set out in subsection (2).

31. Section 275 of the Act is replaced by the following:

Coming into force

275. Sections 73, 110, 111, 171, 194 and 195 come into force two years after the day on which the Balanced Refugee Reform Act receives royal assent or on any earlier day that may be fixed by order of the Governor in Council.

TRANSITIONAL PROVISIONS

Humanitarian and compassionate considerations

32. Every request that is made under section 25 of the Immigration and Refugee Protection Act, as that Act read immediately before the day on which this Act receives royal assent, is to be determined in accordance with that Act as it read immediately before that day.

Refugee protection claim — Personal Information Form not yet submitted

33. (1) The Immigration and Refugee Protection Act, as amended by this Act, applies to every claim for refugee protection made before the day on which this section comes into force if, before that day, the claimant has not submitted a Personal Information Form, as defined in section 1 of the Refugee Protection Division Rules, as they read immediately before that day, and the time limit for submitting that Form has not expired.

Day of interview

(2) The day of the interview that the claimant referred to in subsection (1) must attend under subsection 100(4) of the Immigration and Refugee Protection Act, as enacted by subsection 11(2), is to be fixed by an official of the Immigration and Refugee Board.

Refugee protection claim — Personal Information Form submitted

34. (1) The Immigration and Refugee Protection Act, as amended by this Act, except subsections 100(4) and (4.1), applies to every claim for refugee protection made before the day on which this section comes into force if, before that day,

(a) the claimant has submitted a Personal Information Form, as defined in section 1 of the Refugee Protection Division Rules, as they read immediately before that day; and

(b) there has been no hearing before the Refugee Protection Division in respect of the claim or, if there has been a hearing, no substantive evidence has been heard.

Interview

(2) The claimant referred to in subsection (1) must attend an interview with an official of the Immigration and Refugee Board, if required to do so, on the date fixed by the official in accordance with the Refugee Protection Division Rules and must produce any supplementary documents and information that the official considers necessary.

Substantive evidence heard

35. (1) Every claim for refugee protection in respect of which substantive evidence has been heard before the day on which subsection 18(1) comes into force by a single member or a panel of three members of the Refugee Protection Division appointed under paragraph 153(1)(a) of the Immigration and Refugee Protection Act, as it read immediately before that day, must continue to be heard by that single member or panel in accordance with that Act, as it read immediately before that day.

Single member unable to continue

(2) If the single member is unable to continue to hear the claim, the claim must be referred to a member of the Refugee Protection Division referred to in section 169.1 of the Immigration and Refugee Protection Act, as enacted by section 26, and that member must commence a new hearing in accordance with that Act, as amended by this Act.

Member of panel unable to continue

(3) If a member of the panel referred to in subsection (1) is unable to continue to hear the claim, the claim must continue to be heard by one of the two remaining members in accordance with the Immigration and Refugee Protection Act, as it read immediately before the day on which subsection 18(1) comes into force.

No appeal to Refugee Appeal Division

36. (1) A decision made by the Refugee Protection Division before the day on which this section comes into force is not subject to appeal to the Refugee Appeal Division.

No waiting period

(2) The person in respect of whom the decision was made is not required to wait for the expiry of the 12-month period referred to in paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act, as enacted by subsection 15(1), before making an application under subsection 112(1) of that Act.

Decision set aside in judicial review

37. If a decision referred to in subsection 36(1) is set aside in a judicial review, the claim for refugee protection must be referred to a member of the Refugee Protection Division referred to in section 169.1 of the Immigration and Refugee Protection Act, as enacted by section 26.

Application for protection

38. For greater certainty, paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act, as enacted by subsection 15(1), does not apply if, before the day on which this section comes into force, an application for protection is made under subsection 112(1) of that Act.

Non-application

39. Paragraph 25(1.2)(b) of the Immigration and Refugee Protection Act, as enacted by subsection 4(1), does not apply to a refugee claimant whose claim is pending before the Refugee Protection Division on the day on which section 36 comes into force.

Non-application

40. Paragraph 25(1.2)(c) of the Immigration and Refugee Protection Act, as enacted by subsection 4(1), does not apply to a refugee claimant whose claim is rejected or determined to be withdrawn or abandoned by the Refugee Protection Division before the day on which section 36 comes into force.

R.S., c. F-7; 2002, c. 8, s. 14

FEDERAL COURTS ACT

2001, c. 41, par. 144(2)(b)

41. Subsection 5.1(1) of the Federal Courts Act is replaced by the following:

Constitution of Federal Court

5.1 (1) The Federal Court consists of a chief justice called the Chief Justice of the Federal Court, who is the president of the Federal Court, and 36 other judges.

COMING INTO FORCE

Order in council

42. The provisions of this Act, except sections 3 to 6, 9, 13, 14, 28 and 31, come into force two years after the day on which this Act receives royal assent or on any earlier day or days that may be fixed by order of the Governor in Council.

Published under authority of the Speaker of the House of Commons

Available from:
Publishing and Depository Services
Public Works and Government Services Canada

Explanatory Notes

Immigration and Refugee Protection Act

Clause 2: Relevant portion of subsection 16(2):

(2) In the case of a foreign national,

...

(b) the foreign national must submit to a medical examination on request.

Clause 3: New.

Clause 4: (1) and (2) Existing text of section 25:

25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.

(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.

Clause 5: New.

Clause 6: Relevant portion of section 26:

26. The regulations may provide for any matter relating to the application of sections 18 to 25, and may include provisions respecting

Clause 7: Relevant portion of subsection 36(3):

(3) The following provisions govern subsections (1) and (2):

...

(e) inadmissibility under subsections (1) and (2) may not be based on an offence designated as a contravention under the Contraventions Act or an offence for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985 or the Youth Criminal Justice Act.

Clause 8: Existing text of section 91:

91. The regulations may govern who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board.

Clause 9: Relevant portion of subsection 94(2):

(2) The report shall include a description of

...

(e) the number of persons granted permanent resident status under subsection 25(1); and

Clause 10: Relevant portion of subsection 95(1):

95. (1) Refugee protection is conferred on a person when

(a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons;

(b) the Board determines the person to be a Convention refugee or a person in need of protection; or

Clause 11: (1) New.

(2) Existing text of subsection 100(4):

(4) 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. If the claim is referred, the claimant must produce all documents and information as required by the rules of the Board.

Clause 12: New.

Clause 13: (1) Existing text of subsection 110(1):

110. (1) 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, or a decision of the Refugee Protection Division rejecting an application by the Minister for a determination that refugee protection has ceased or an application by the Minister to vacate a decision to allow a claim for refugee protection.

(2) Existing text of subsection 110(3):

(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.

Clause 14: Existing text of subsection 111(2):

(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.

Clause 15: (1) Relevant portion of subsection 112(2):

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

(2) New.

Clause 16: Relevant portion of section 113:

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 the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;

Clause 17: New.

Clause 18: (1) and (2) Relevant portion of subsection 153(1):

153. (1) The Chairperson and members of the Refugee Protection Division, Refugee Appeal Division and Immigration Appeal Division

...

(b) shall swear the oath or give the solemn affirmation of office set out in the rules of the Board;

Clause 19: (1) and (2) Relevant portion of subsection 159(1):

159. (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson

...

(b) may at any time assign a member appointed under paragraph 153(1)(a) to the Refugee Protection Division, the Refugee Appeal Division and the Immigration Appeal Division;

(c) may at any time, notwithstanding paragraph 153(1)(a), assign a member, other than a member of the Immigration Division, to work in another regional or district office in order to satisfy operational requirements, but an assignment may not exceed 90 days without the approval of the Governor in Council;

(d) designates from among the full-time members of the Board coordinating members for a Division, other than the Immigration Division;

...

(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons and the Director General of the Immigration Division, to assist members in carrying out their duties; and

(3) Existing text of subsection 159(2):

(2) The Chairperson may delegate any of his or her powers under this Act to a member of the Board, other than a member of the Immigration Division, except that

(a) powers conferred under subsection 161(1) may not be delegated;

(b) powers referred to in paragraphs (1)(a) and (i) may be delegated to the Executive Director of the Board; and

(c) powers in relation to the Immigration Division may only be delegated to the Director General, directors or members of that Division.

Clause 20: Relevant portion of subsection 161(1):

161. (1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, the Chairperson may make rules respecting

(a) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, the priority to be given to proceedings, the notice that is required and the period in which notice must be given;

Clause 21: Existing text of section 163:

163. Matters before a Division shall be conducted before a single member unless, except for matters before the Immigration Division, the Chairperson is of the opinion that a panel of three members should be constituted.

Clause 22: Existing text of section 165:

165. The Refugee Protection Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing.

Clause 23: Existing text of subsection 167(1):

167. (1) Both a person who is the subject of Board proceedings and the Minister may, at their own expense, be represented by a barrister or solicitor or other counsel.

Clause 24: Existing text of subsection 168(1):

168. (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.

Clause 25: Relevant portion of section 169:

169. In the case of a decision of a Division, other than an interlocutory decision:

...

(c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing;

Clause 26: New.

Clause 27: Relevant portion of section 170:

170. The Refugee Protection Division, in any proceeding before it,

Clause 28: (1) and (2) Relevant portion of section 171:

171. In the case of a proceeding of the Refugee Appeal Division,

(a) the Minister may, after giving notice within the period that is required by the rules, intervene in the appeal, including for the purpose of filing submissions;

...

(c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a trial court.

Clause 29: Existing text of section 172:

172. (1) The Immigration Division consists of the Director General and other directors and members necessary to carry out its functions and who are employed in accordance with the Public Service Employment Act.

(2) The Director General and the directors of the Immigration Division have all the powers and may carry out the duties and functions of members of the Division.

Clause 30: Existing text of subsection 176(1):

176. (1) The Chairperson may request the Minister to decide whether any member, except a member of the Immigration Division, should be subject to remedial or disciplinary measures for a reason set out in subsection (2).

Clause 31: Existing text of section 275:

275. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

Federal Courts Act

Clause 41: Existing text of subsection 5.1(1):

5.1 (1) The Federal Court consists of a chief justice called the Chief Justice of the Federal Court, who is the president of the Federal Court, and 32 other judges.

Table of Contents

IMMIGRATION AND REFUGEE PROTECTION ACT

Designated Countries of Origin

TRANSITIONAL PROVISIONS

FEDERAL COURTS ACT

COMING INTO FORCE