Canada’s New Refugee Determination System
On August 19, 2011, the Honourable Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism, announced that the Balanced Refugee Reform Act will come into force on June 29, 2012.
Refugee: A person who has had to flee his or her country because of a well-founded fear of persecution and has been given protection by the Government of Canada.
The legal definition of a Convention refugee, being the international definition, has been incorporated into s. 96 of IRPA as follows:
96. A Convention refugee is a person who, by reason of a well-founded fear ofpersecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
Convention refugee: A person who meets the definition of a refugee contained in the 1951 United Nations Convention Relating to the Status of Refugees. In general, it is someone who has left his or her home country. He or she has a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group. And, he or she is unable or - because of that fear - is unwilling to seek protection in his or her home country.
Person in need of protection: A person who, if removed to his or her home country, would be subjected to a danger of torture, or to a risk to his or her life, or to a risk of cruel and unusual treatment or punishment.
A97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards,
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
Refugees and persons in refugee-like situations abroad may be sponsored by Canadians as per A13(2). There are three such categories of sponsorship:
(a) Government sponsored refugees;
(b) Privately sponsored refugees through:
i) a Sponsorship Agreement Holder (SAH), such as a church group or cultural organization, or
ii) a private group of individuals, called a Group of Five (G-5); and
(c) Joint assistance sponsorships where government is a party, where “special needs” exist as per R157.
Persons in the following classes can be sponsored:
(a) Convention refugees abroad (who meet the legal CR definition);
(b) Humanitarian-protected persons abroad (in refugee-like circumstances) consisting of two sub-classes:
i) Country of asylum class: where the person is outside their own country,
and was seriously and personally affected by civil war, armed conflict or massive violations of human rights as per R147, or
ii) Source country class: the refugee is still inside their country, but in a Schedule 2 country (currently the 6 countries listed in 4(c) above) and
has been seriously and personally affected by civil war or armed conflict, or imprisoned for human rights reasons, or has a well founded fear of persecution as per R148.
Besides being a member of the class described above, the applicant must:
(a) have no durable solution in a reasonable time (repatriation, integration into country of first asylum, or other viable options for resident status in a third country), and
(b) have reasonable settlement prospects for successfully establishing in Canada.
Who may be considered a refugee?
The Immigration and Refugee Protection Regulations describe three classes of persons who may qualify as refugees for Canada’s refugee and humanitarian resettlement program. The classes are the Convention Refugees Abroad Class, the Country of Asylum Class and the Source Country Class.
A Convention refugee is any person who, by reason of a well-founded fear of persecution because of race, religion, nationality, membership in a particular social group or political opinion,
A Convention Refugee Abroad is any person who:
A member of the Country of Asylum Class is a person:
A member of the Source Country Class is a person:
Protection and assistance for victims of human trafficking
The purpose of the BOC Form is to present your refugee protection claim to the RPD. In the BOC Form, you will give details about yourself (your identity, family, documents and travel history) and about why you are claiming refugee protection in Canada. The questions in the form will help you include the most important parts of your life experience. It is important that you include all important facts and events and to tell the truth.
At your hearing, a member may ask you questions about anything you have included, or not included, in your BOC Form. The RPD will use the information in your BOC Form when it makes a decision about your claim. Therefore, it is important for everything in your BOC Form to be complete, true and correct.
You must sign and date your BOC Form. By signing your BOC Form, you are declaring that the information in it is complete, true and correct.
The responsibility to prove a case or claim. For example, a refugee claimant must show that he or she meets the definition of a Convention refugee as set out in the 1951 United Nations Convention Relating to the Status of Refugees or the definition of a person in need of protection as set out in the Immigration and Refugee Protection Act.
Groups and individuals can sponsor refugees from abroad who qualify to come to Canada.
Sponsors are responsible for providing financial settlement assistance (except for Joint Assistance Sponsorship cases) for refugees once they arrive in Canada. Sponsors must also provide emotional and significant settlement assistance for the duration of the sponsorship period.
Most sponsorships last for one year, but some refugees may be eligible to receive assistance from their sponsors for a longer period of time.
Quebec has its own process for sponsoring refugees. Sponsors who live in the province of Quebec should contact the Quebec ministry that handles immigration.
Burden of proof:
The burden of proof (Latin: onus probandi) is the obligation to shift the accepted conclusion away from an oppositional opinion to one's own position.
The burden of proof is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: "the necessity of proof always lies with the person who lays charges." This is a statement of a version of the presumption of innocence that underpins the assessment of evidence in some legal systems, and is not a general statement of when one takes on the burden of proof.
Generraly speaking he who does not carry the burden of proof carries the benefit of assumption, meaning he needs no evidence to support his claim. Fulfilling the burden of proof effectively captures the benefit of assumption, passing the burden of proof off to another party. However the incidence of burden of proof is affected by common law, statute and procedure.
A "legal burden" or a "burden of persuasion" is an obligation that remains on a single party for the duration of the claim. Once the burden has been entirely discharged to the satisfaction of the trier of fact, the party carrying the burden will succeed in its claim.
For example, the presumption of innocence places a legal burden upon the prosecution to prove all elements of the offense (generally beyond a reasonable doubt) and to disprove all the defenses except for affirmative defenses in which the proof of non-existence of all affirmative defense(s) is not constitutionally required of the prosecution.
It is not to be confused with evidential burden, which is an obligation that shifts between parties over the course of the hearing or trial. It is not a burden of proof, but the burden to adduce sufficient evidence to properly raise an issue at court.
The standard of proof asks to how convinced the trier of fact must be of some something.
It is generally said that there are only two standards: "The Balance of Probabilities" and "Beyond a Reasonable Doubt".
The US has a third standard known as "clear and convincing evdience" which is a middle ground between the two standards, however, this has never been officially adopted in Canada.
When a proposition at issue in a case, such as an element of an offence, must be proven, the standard must be reached using the weight of the totality of evidence presented, not on each individual piece of evidence (R. v. Morin).
The "standard of proof" is the level of proof required in a legal action to discharge the burden of proof, that is to convince the court that a given proposition is true.
The degree of proof required depends on the circumstances of the proposition.
Typically, most countries have two levels of proof or the balance of probabilities-- the civil standard of proof, however, can also be used in criminal trials.
1) beyond a reasonable doubt -- (highest level of proof, used mainly in criminal trials)
2) clear and convincing evidence -- (intermediate level of proof, used mainly in civil trials in the U.S.)
3) preponderance of evidence -- (lowest level of proof, used mainly in civil trials; typically means more likely than not)
Preponderance of the evidence
Preponderance of the evidence, also known as balance of probabilities is the standard required in most civil cases. The standard is met if the proposition is more likely to be true than not true.
The "balance of probabilities" is described as being "more probable than not", or more technically, the chance of the proposition being true is more than 50%. This standard is known as the civil standard as it exclusively used in civil trial cases.
In the Continental Insurance case it was argued that the BoP standard was too restrictive and that there should be an intermediate standard such as "clear and convincing evidence" standard. The Supreme Court decided against it, stating "the more momentous and serious its consequences, the greater the caution and deliberation demanded, that is, the greater amount of cogent evidence before there can be any "satisfaction" about where the truth lies".
Clear and convincing evidence
Clear and convincing evidence is the higher level of burden of persuasion sometimes employed in both civil and criminal procedure in the United States. For example, a prisoner seeking habeas corpus relief from capital punishment must prove his factual innocence by clear and convincing evidence.
To prove something by "clear and convincing evidence", the party with the burden of proof must convince the trier of fact that it is substantially more likely than not that the thing is in fact true. This is a lesser requirement than "proof beyond a reasonable doubt", which requires that the trier of fact be close to certain of the truth of the matter asserted, but a stricter requirement than proof by "preponderance of the evidence," which merely requires that the matter asserted seem more likely true than not. In many jurisdictions, fraud, for example, must be shown by clear and convincing evidence.
Beyond a Reasonable Doubt
Defining "beyond a reasonable doubt" has been shown to be difficult. Typically it is said mean that the proposition has be proven to the extent that there is no "reasonable doubt" in the mind of a reasonable person.
There can still be a doubt, but only to the extent that it would be "unreasonable" to assume the falsity of the proposition. Studies have shown that, in effect, the BARD standard equates to greater than 90% certainty. Nevertheless, courts strongly oppose to quantify the standard in such a way.
This standard is almost exclusively used in criminal trials. For example, it is used in young offender cases, sentencing, and provincial penal offences.
The standad of BARD only applies to the evaluation of the evidence as a whole and not individual aspects of the evidence.
Where the issue is the reliability or credibility of a witness, the courts must generally consider corrobrative evidence.
The standards of proof and IRB
The standards of proof for the legal issues and the ultimate burdens of proof differ in the three Divisions. However, in all three Divisions, on an application made by way of motion, the burden of proof lies with the party bringing the application. For example in an application for confidentiality of the proceedings the ultimate burden of proof lies with the applicant, and the standard of proof, for meeting the legal test for closing a hearing, is identical for all three Divisions.
REFUGEE PROTECTION DIVISION (RPD)
In the RPD, the facts are applied to the definitions of Convention refugee and person in need of protection to determine whether the elements of the definitions have been established.
It must be determined that the evidence shows that it is more likely than not that each element exists, other than the element of the risk of the harm feared. With respect to the objective basis of the fear of persecution in the Convention refugee definition, a lower test is applied: "a reasonable chance" or a "serious possibility" of persecution ...
With respect to the standard of proof for the danger of torture ground in subsection 97(1)(a) of the Immigration and Refugee Protection Act and the risk to life or cruel and unusual treatment or punishment ground in subsection 97(1)(b) of the Act, the preferred position of Legal Services is that the Adjei test is the appropriate standard ("reasonable chance [of] persecution", i.e. more than a minimal possibility but less than a probability).
[Theoretical spectrum of tests of the meaning of "substantial grounds for believing" in Article 3 of the Convention Against Torture, there are three possible tests: i.e. mere possibility, balance of probabilities and highly probable. Mr. Li submits that the Adjei test relating to section 96 "reasonable chance [of] persecution", i.e. more than a minimal possibility but less than a probability, should be added to the spectrum. Thus, on the theoretical spectrum, there could be four tests: mere possibility, reasonable chance, balance of probabilities and highly probable.]
The standard of proof of a "serious possibility" was applied to the danger of torture ground in subsection 97(1)(a) of the Immigration and Refugee Protection Act by the Refugee Protection Division in a case involving a Guinean claimant.
There is conflicting jurisprudence in the Federal Court as to the correct standard of proof to be applied to subsections 97(1)(a) and 97(1)(b) of the Immigration and Refugee Protection Act.
Given the conflicting case law on this issue, Legal Services recommends, until the matter is resolved in a higher court, that members apply the lower "serious possibility" standard to all protection grounds.
REFUGEE APPEAL DIVISION
The new asylum system includes a Refugee Appeal Division at the Immigration and Refugee Board of Canada (IRB).
The Refugee Appeal Division will
The appeal will be paper-based, with oral hearings in exceptional cases.
The appeal process will be done by Governor in Council (GIC) appointees.
Decisions on most appeals are expected within 90 days unless an oral hearing is required.
Failed refugee claimants who are not eligible to appeal to the Refugee Appeal Division include:
All failed claimants will still be able to ask the Federal Court to review a negative decision.
IMMIGRATION APPEAL DIVISION (IAD)
In the IAD, the panel must determine whether the necessary elements of the issues in the appellant's case have been established by the facts as found.
The standard of proof varies according to the legal issue before the panel.
Some provisions of the Immigration and Refugee Protection Act specify the applicable standard of proof.
For example, subsection 36(3)(d) specifies that the standard is the balance of probabilities. On the other hand, in subsection 37(1)(a) the standard is "believed on reasonable grounds," which is less than a balance of probabilities. Where the standard of proof is not specified, it is the civil standard of a balance of probabilities.
On an appeal the ultimate burden of proof rests with the appellant.
IMMIGRATION DIVISION (ID)
Pursuant to section 45(d) of the Immigration and Refugee Protection Act, the burden of proof will vary. Where the permanent resident or foreign national seeks to come into Canada, the burden of proving that the person has the right to come into Canada is on the person seeking to enter. With respect to persons who are in Canada, the Minister has the burden of proving that the person should be ordered to leave Canada.
Convicted in Canada
Persons are not eligible to make a refugee claim if they are found to be inadmissible on grounds of having been convicted in Canada of an offence for which 10 years or more imprisonment may be imposed and for which at least two years was imposed [A101(2)(a)].
Convicted outside Canada
Persons convicted outside Canada are not eligible to make a refugee claim provided the Minister of C&I determines that they are a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years [A101(2)(b)].
The above provisions are meant to reinforce the concept that decisions to exclude persons convicted of offences will be based on decisions lawfully rendered by the Immigration Division.
Violators of human or international rights / security threats / organized criminality
Persons found to be inadmissible by the Immigration Division for reasons of security, violating human or international rights, serious or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph A35(1)(c), are not eligible to make a refugee claim [A101(1)(f)].
Both CIC and the CBSA have policy responsibility with respect to relief provisions.
CIC has the policy responsibility for rehabilitation with respect to criminality.
The CBSA has the policy responsibility for relief based on national interest for security, war crimes, crimes against humanity and organized crime inadmissibilities.
To recommend relief, an officer must be satisfied that it is highly unlikely that the person concerned will become involved in any further criminal activities.
There are four separate mechanisms to grant relief to inadmissible persons:
• Pardon – National Parole Board A36(1)(a) and A36(2)(a) - [A36(3)(b)];
• Rehabilitation – Minister of C&I;A36(1)(b) and A36(2)(b); [A36(3)(c)];
• passage of time;
• national Interest – Minister of PSEP (A34(1) - [A34(2)]; A35(1)(b) and (c) - [A35(2)];
A36(2)(b): An applicant convicted outside Canada (of an offence that if committed in Canada would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of less than 10 years) may be deemed rehabilitated if 10 years have elapsed since the completion of the sentence imposed and they have not been convicted of a subsequent offence other than an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act [R18(2)(a)(i)].
A36(2)(b): An applicant convicted outside Canada (of two or more offences not arising out of a single occurrence that, if committed in Canada, would constitute summary conviction offences under any Act of Parliament) may be deemed rehabilitated if five years have elapsed since the sentences imposed were served and they have not been convicted of a subsequent offence other than an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act [R18(2)(b)].
A36(1)(c) or A36(2)(c) Rehabilitation Minister of C&I [A36(3)(c)]
A36(2)(c): An applicant who committed an act outside Canada (that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of less than 10 years) may be deemed rehabilitated if 10 years have elapsed from the commission of the act and they have not been convicted of a subsequent offence other than an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act [R18(2)(a)(ii)].
Pardon for convictions in Canada
The Criminal Records Act provides authority for the granting of a pardon to persons who have convictions in Canada. Applicants can request a Pardon Application Guide or additional information from the following:
Clemency and Pardons Division
National Parole Board
10 Laurier Avenue West
Ottawa, Ontario K1A 0R1
Tel: 1-800-874-2652 (callers in Canada or U.S. only) / Fax: (613) 941-4981
Web site: http://www.npb-cnlc.gc.ca
Imposed sentences incorporating a “time served” provision
In the context of having a right of appeal in order for the grounds of serious criminality to apply, a person must have been convicted in Canada and have received a sentence of two years or more [A64(2)].
For example, if a person were sentenced to one year of imprisonment plus 183 days of time served, the 183 days of time served would count as a 366-day sentence (2 x 183 = 366), plus a one-year sentence imposed for a total sentence of two years and one day. There is no appeal right because the total sentence exceeds two years.
A64(2) is not meant to include multiple consecutive sentences. It only refers to a single sentence.
Options for refused applicants
Canada is committed to ensuring that people being removed from Canada are not sent to a country where they would be in danger or at risk of persecution.
(Also if you have previously made an unsuccessful refugee claim you cannot make a second claim but you could be assessed under this programme.)
CIC is responsible for PRRA reviews. Key partners involved in the program include the Canada Border Services Agency (CBSA), which is responsible for triggering PRRAs and executing removal orders; and the Department of Justice (DOJ), which represents the Crown in any appeals of PRRA decisions, and provides legal advice as required.
There are two main categories of eligible applicants for PRRA:
If your refugee claim was not successful and you have not left Canada for 30 days after that Departure order becomes Deportation order and you will be told to leave Canada immediately, you will be given a notice that
the removal order is being enforced. At that time, if you are eligible,
you will be given the opportunity to apply for a pre-removal risk
If you apply, a CIC officer will review your application, as well as
documents and other evidence you provide in support of it. If you
previously made a refugee claim, the officer will limit their
consideration to new evidence, or that which you were not able to
present at your refugee hearing.
You may be asked to attend an
interview. There you maybe notified about the PRRA application and will be given the deadlines and necessary information. CIC will take your photo, or will make arrangement to renew your passport. CIC must receive your application within 15 days of you receiving the notification. You must send any additional evidence to support your statement of risk within 30 days of receiving this notification. If the documents do not arrive on time, you can be removed from Canada.
If you are eligible to apply for a PRRA, you will be given an application form and guide. You will have fifteen (15) days in which to apply.
When you receive your PRRA forms, your removal order is suspended for 15 days. This suspension will remain in effect until:
Note: If the PRRA application forms are mailed to you, you will be given an additional seven (7) days in which to apply.
In support of your application, you will be able to submit written evidence to help explain the risk that you would face if removed from Canada.
In reviewing your case, the officer will consider:
Some people are not eligible for a PRRA. You will not be eligible if you are:
If the PRRA officer accepts your application, you may receive the status of “protected person.” This means you can stay in Canada and you can apply to become a permanent resident.
If the PRRA
officer rejects your application, you will receive a written notice.
Your removal order comes into effect again and you may receive a
reasonable period of time to ensure your departure from Canada.
application is rejected, you may apply to the Federal Court of Canada
for a review of the PRRA officer’s decision.
Persons who have submitted a PRRA may also have submitted an application for permanent residence in Canada on the basis of humanitarian or compassionate (H&C) grounds. The applicant must be able to demonstrate that he/she would face unusual and undeserved or disproportionate hardship if required to leave Canada to submit an application for permanent residence. Submitting an application for permanent residence on H&C grounds does not prevent or delay an individual from being removed from Canada if under a removal order.
Successful Refugee claimants applying for PR - Family Members
Subsection R176(1) enables a protected person applying to remain in Canada as a permanent resident to include any of their family members in the application.
Subsection R176(2) permits the issuance of a permanent resident visa to a family member who is outside Canada at the time of application, if
(a) the family member makes an application outside Canada to an officer within one year after the day on which the applicant becomes a permanent resident; and
(b) the family member is not inadmissible on the grounds listed in subsection A21(2). Misrepresentation is not a listed ground of inadmissibility under section A21 and as such does not apply.
If the person misrepresented their relationship to the applicant, the officer may have grounds to refuse the application on the basis that the applicant did not provide sufficient evidence to show proof of family relationship with the protected person in Canada. If the misrepresentations were made with respect to the basis for which the IRB granted protected status, then, pursuant to A109, an application to vacate status should be made to the IRB.
Guideline on Detention
The Immigration and Refugee Board of Canada (IRB) has published its revised Guideline 2 – Guideline on Detention. The instrument comes into effect on October 29, 2010.
Members of the Immigration Division must order the release of a permanent resident or a foreign national unless they are satisfied, taking into account prescribed factors, that:
1.6 At each detention review the Immigration Division must come to a fresh conclusion on whether the detained person should continue to be detained. However, previous decisions by the Immigration Division to detain the person concerned must be considered at subsequent reviews and the subsequent decision-maker must give “clear and compelling reasons” for departing from previous decisions.
4.1 The statutory scheme for the holding of detention reviews is set out in IRPA. The timing of detention reviews must reflect the statutory scheme as set out in IRPA as closely as possible.
Section 57 of IRPA provides that “within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention.” The same section in IRPA also provides that the Immigration Division must review the reasons for the continued detention at least once during the seven days following the preceding review and at least once during each 30-day period following each previous review.
Types of removal orders
As part of its enforcement of the Immigration and Refugee Protection Act, the Canada Border Services Agency (CBSA) may remove from Canada any person who has been issued a removal order for breaching the Act.
There are three types of removal orders and each one has different consequences. A removal order can be appealed in certain situations. People cannot be removed from Canada if they have appealed a removal order and the appeal has not been decided, if they are involved in another legal proceeding or if they have been found to be people in need of protection.
If either a CBSA officer or a member of the IRB's Immigration Division determines that a person has breached the Immigration and Refugee Protection Act, he or she may issue one of the following removal orders:
Departure order: A departure order requires that the person leave Canada within 30 days after the order becomes enforceable.
This is an order to leave Canada within 30 days after the order comes into effect. Before leaving Canada, you must notify the CBSA, which will give you a certificate of departure as proof of your compliance. If you do not leave (or if you do not notify the CBSA), the departure order automatically becomes a deportation order after 30 days.
When the CBSA refers you, as a refugee claimant, to the IRB, it also issues a conditional departure order against you. This order will only come into effect, and the CBSA will only remove you, if you abandon your claim for refugee protection, or if the IRB does not grant you refugee protection.
Exclusion order: A person who has been removed as a result of an exclusion order cannot return to Canada for one year unless the written permission of the CBSA is obtained. However, people who are issued exclusion orders for misrepresentation cannot return for two years without written authorization from the CBSA.
Under an exclusion order, you must leave Canada and cannot return for at least a year unless you have written permission from the Government of Canada. If you were removed for misrepresentation - for example, purposely not telling the truth - you cannot come back for two years, unless you have written permission from the Government of Canada.
Deportation order: A person who has been removed as a result of a deportation order is permanently barred from returning to Canada. Such people may never return unless they receive written permission from the CBSA.
Under a deportation order, you will be removed from Canada and you are permanently barred from Canada. This type of removal order is issued for inadmissibility, for example, if you are a security threat, or you have committed a serious violation of IRPA. If you are deported, you may not return unless you have written permission from the Government of Canada.
All three removal orders require the person concerned to confirm his or her departure from Canada with the CBSA.
In all cases, the person must appear before an immigration officer at the port of entry before leaving Canada.
A departure order automatically becomes a deportation order when someone who has been issued a departure order does not leave Canada as required or leaves Canada without confirming his or her departure with the CBSA.
Departure and exclusion orders are usually issued for less serious violations.
If a person is issued a removal order and files a claim for refugee protection, the removal order does not come into force until the claim has been decided. If the claim for protection is accepted, the removal order is cancelled. Unsuccessful claimants who had conditional departure orders issued against them must leave Canada within 30 days of the date of the final determination of the claim or the order becomes enforceable.
In all cases, the individuals and their authorized representatives are informed of the reasons for the removal and are given a copy of the removal order. Family members in Canada who are dependants of the person subject to a removal order may be included in the removal order provided they are not Canadian citizens or permanent residents 19 years of age or over.
The Regulations establish under what conditions a specific removal order may be issued and the effect of those orders [R223 through R228].
The Regulations also provide that the Minister’s delegate may issue a deportation order to foreign nationals who may have previously been removed from Canada and who return without prior authorization [R228].
The Regulations provide that receipt of a deportation order obliges the foreign national to obtain the written authorization of an officer to return to Canada at any time after the order is enforced.
For the purposes of subsection A52(1), the making of a deportation order against a foreign national on the basis of inadmissibility under paragraph A42(b) (that is, an inadmissible family member) is prescribed as a circumstance that does not oblige the foreign national to obtain the authorization of an officer in order to return to Canada [R226].
The provisions respecting exclusion orders specify that:
• an exclusion order obliges the foreign national to obtain the written authorization of an officer in order to return to Canada for a period of one year after the order has been enforced; and
• a foreign national who is issued an exclusion order as a result of being found inadmissible for misrepresentation must obtain the written authorization of an officer to return to Canada for a period of two years after the order has been enforced.
For the purposes of subsection A52(1), the making of an exclusion order against a foreign national on the basis of inadmissibility under paragraph A42(b) (that is, an inadmissible family member) is prescribed as a circumstance that does not oblige the foreign national to obtain the authorization of an officer in order to return to Canada [R225].
The provisions respecting departure orders specify that:
• a departure order does not oblige a foreign national to obtain the authorization of an officer in order to return to Canada provided the foreign national who is issued the departure order satisfies the requirement related to departure from Canada within 30 days of the order becoming enforceable, failing which the order would become a deportation order [R224].
• if the foreign national is detained within the 30-day period or the removal order is stayed, the 30- day period is suspended.
When is a removal order considered to be enforced?
R240 provides that a removal order shall be considered to have been enforced against a foreign national if the subject of that order:
(a) appears before an officer at a port of entry to have their departure from Canada verified;
(b) obtains a certificate of departure;
(c) departs from Canada; and
(d) has been authorized to enter, other than for purposes of transit, their country of destination.
Visa offices R240 provides that foreign nationals who apply for a visa abroad, and against whom a
removal order has not been enforced, must establish that their removal has been enforced.
Removal orders may be enforced by an overseas officer if, following an examination, the foreign national is able to establish that they have complied with certain removal requirements; these include:
• appearing before an officer outside of Canada;
• providing verification that they are the same person named on the removal order;
• demonstrating that they were lawfully admitted to the country in which they are physically present at the time that the application is made; and
• proving that they are not a threat to security, have not violated human or international rights and have not been involved in serious or organized criminality.
Allowing for removal orders to be enforced abroad provides persons with an opportunity to further regularize their admissibility status. Persons who fail to have their removal order enforced prior to seeking re-entry into Canada may find that they are the subjects of outstanding arrest warrants.
What Are Persuasive Decisions?
Persuasive decisions are decisions that have been identified by a division head as being of persuasive value in developing the jurisprudence of a particular division. These decisions are well written, provide clear, complete and concise reasons with respect to the particular element that is considered to have persuasive value, and consider all of the relevant issues in a case.
Accordingly, members are encouraged to rely upon persuasive decisions in the interests of consistency and effective decision-making.
Notice of Identification of Persuasive Decision
"After due consideration, I am of the view that the reasons for decision in VA9-02166 are of persuasive value in regard to claimants from Sri Lanka seeking protection due to their fear of the Sri Lankan army, government officials and paramilitary agents associated with the Sri Lankan government as members of a particular social group, namely "young male Tamils from northern Sri Lanka". "
Refugee Appeal Division
The new asylum system includes a Refugee Appeal Division at the Immigration and Refugee Board (IRB).
The Refugee Appeal Division will provide an opportunity for claimants to establish that the Refugee Protection Division decision was wrong in fact or law or both, allow for the introduction of new evidence that was not reasonably available at the time of the Refugee Protection Division process and, in exceptional cases, allow for an oral hearing.
The appeal process will be conducted by Governor in Council (GIC) appointees.
Failed asylum claimants will have a chance to appeal a negative decision. Decisions on most claims are expected within 120 days unless a hearing is held. Decisions on claims from people from designated countries of origin or those with manifestly unfounded claims will be rendered within 30 days unless a hearing is held.
All failed claimants continue to be able to ask the Federal Court to review a negative decision.
Frequently asked questions
More Questions and Answers about the Refugee System