Library of Parliament Research Publications
40th Parliament, 3rd Session
Legislative Summary of Bill C-11: An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act (Balanced Refugee Reform Act) *
Daphne Keevil Harrold, Sandra Elgersma, Social Affairs Division
12 May 2010
Publication Number 40-3-C11E PDF 205 kB, 22 pages
Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
- 1 Background
- 2 Description and Analysis
- 2.1 Changes to the Immigration and Refugee Board
- 2.1.1 Changes to Appointment Process for Immigration and Refugee Board Members (Clauses 17, 18, 26, and 29)
- 2.1.2 Officials of the Refugee Protection Division Employed as Public Servants (Clauses 17, 19, 26, and 30)
- 2.1.3 Powers of the Chairperson (Clauses 19, 20, and 30)
- 2.2 Changes to the Procedure for Making a Claim for Refugee Protection From Inside Canada
- 2.2.1 Changes to the Refugee Protection Division Process
- 22.214.171.124 Initial Interview Followed by a Hearing (Clauses 8, 11, 24, and 27)
- 126.96.36.199 Single-Member Panel for the Refugee Protection Division Hearing (Clause 21)
- 2.2.2 Refugee Appeal Division
- 188.8.131.52 Powers of the Refugee Appeal Division (Clauses 14 and 22)
- 184.108.40.206 Procedure Before the Refugee Appeal Division (Clauses 13, 25, and 28)
- 2.2.3 Different Time Limits for Certain Groups of Refugee Claimants
- 2.2.1 Changes to the Refugee Protection Division Process
- 2.3 Changes to Humanitarian and Compassionate Considerations
- 2.3.1 Removal of Public Policy Considerations from Examinations Conducted on Request (Clauses 4 and 5)
- 2.3.2 Humanitarian and Compassionate Determinations Separated from Refugee Determination Factors (Clause 4)
- 2.3.3 “Shall” Changed to “Must” (Clause 4)
- 2.3.4 Regulatory Powers and Reporting to Parliament (Clauses 6 and 9)
- 2.4 Post-Claim Changes
- 2.4.1 No Pre-removal Risk Assessment for 12 Months Following Rejection, Abandonment or Withdrawal of Claim for Refugee Protection (Clause 15)
- 220.127.116.11 Pre-removal Risk Assessments Conducted by the RPD and the Minister (Clauses 15, 16, 16.1, 25 and 27.1)
- 2.4.2 No Temporary Resident Permit for Refugee Claims Finalized in the Past 12 Months (Clause 3)
- 2.5 Other Changes in Bill C-11
- 2.6 Coming Into Force Provisions (Clauses 31 and 42)
- 2.7 Transitional Provisions (Clauses 32 to 40 and 42)
- 2.1 Changes to the Immigration and Refugee Board
- 3 Commentary
Bill C-11, An Act to Amend the Immigration and Refugee Protection Act and the Federal Courts Act (short title: Balanced Refugee Reform Act), was introduced in the House of Commons on 30 March 2010 by the Minister of Citizenship, Immigration and Multiculturalism, the Honourable Jason Kenney. It was referred to the House of Commons Standing Committee on Citizenship and Immigration on 29 April 2010. Following clause-by-clause consideration, the bill was reported back to the House on 11 June 2010 with technical and substantive amendments. The substantive amendments were agreed to by all parties following negotiations. The House, the Senate, and the Senate Standing Committee on Social Affairs, Science and Technology studied and supported these amendments, and Bill C 11 received Royal Assent on 29 June 2010.
The bill makes a number of changes to Canada’s in-land refugee determination system. Some of the more significant changes include the provision that the first-level refugee determination decision-maker is a public servant and is no longer appointed by the Governor in Council; the implementation of a refugee appeal division with different time limits for some claimants; changes to humanitarian and compassionate provisions; and limited access to Pre-Removal Risk Assessments and Temporary Resident Permits. The bill also increases the number of Federal Court judges.
As a signatory to the 1951 United Nations Convention Relating to the Status of Refugees and its Protocol, Canada cannot return people to territories where they face persecution on the basis of their race, religion, nationality, membership in a particular social group or political opinion. These persons are known as Convention refugees.
Canada is also signatory to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the implementation of Canada’s commitment to this international instrument is reflected in its domestic law and practice. As a result, in Canada, refugee protection is also conferred on “persons in need of protection” who face individualized risk of death, torture, or cruel and unusual treatment or punishment.
The Canadian Charter of Rights and Freedoms1 is also an important part of the legal framework for those seeking asylum in Canada. In 1985, the Supreme Court of Canada decided in Singh v. the Minister of Employment and Immigration2 that the Charter protects refugee claimants; this decision has been instrumental in setting the standards for procedural fairness that must be met in such cases.
In this context, governments strive to operate a refugee determination system that is fair and upholds Canada’s legal obligations, while at the same time minimizes the risk of abuse and is reasonably efficient and cost-effective to administer. Asylum seekers whose claims for protection are deemed eligible are offered the opportunity of a hearing by the Immigration and Refugee Board (IRB), a quasi-judicial federal body. Following an initial interview before an immigration officer, claimants for refugee protection proceed to a hearing before a panel of the Refugee Protection Division of the IRB. Unsuccessful claimants are removed from Canada; however, they may apply for a judicial review and a stay of their deportation order to the Federal Court of Canada.3
In 2010, the IRB faced a number of challenges in finalizing a large volume of refugee claims. Some, such as the upward trend in asylum claims lodged in industrialized countries over the last number of years and increasingly complex or mixed migration flows, are global in scope. Others are particular to the Canadian context, and include the delay in appointments and reappointments to the IRB over the 2004 to 2008 period, the backlog of 63,000 pending refugee protection claims, and the amount of resources available to the IRB to administer claims.4
The IRB is Canada’s largest independent administrative tribunal. It comprises, at least in theory, four divisions, and the roles and responsibilities of each division are outlined in the Immigration and Refugee Protection Act (IRPA).5 Each division has a different area of jurisdiction, but all of them are intended to perform adjudicative or quasi-appellate functions under the Act. It is important to note, however, that although IRPA theoretically creates four IRB divisions, only three of these divisions are currently operational: the Refugee Protection Division (RPD), the Immigration Division, and the Immigration Appeal Division (IAD). While the IRPA includes provisions designed to create a Refugee Appeal Division (RAD) within the IRB, the sections creating the RAD have never been brought into force and as a result, the RAD does not presently exist.
With respect to the three operational divisions, sections 100 and 162 of IRPA provide the RPD with the jurisdiction to hear refugee claims referred to it by an immigration officer following the officer’s initial eligibility review of the claimant’s case. The Immigration Division, by virtue of sections 44, 45 and 162 of the Act, has the jurisdiction to hold admissibility hearings with respect to permanent residents and foreign nationals who are alleged to be inadmissible to Canada because they cannot meet the requirements of IRPA or its regulations. The Immigration Appeal Division (IAD), under sections 62, 63 and 162, has the jurisdiction to hear certain appeals.6
Bill C-11 provides that RPD officials are no longer appointed by the Governor in Council and will instead be employed as part of the public service. This means that the first-level decision maker in the in-land refugee determination process will no longer hold office for a specified term and will no longer be governed by IRPA’s appointment, qualification and conflict provisions. Further, the IRB Chairperson’s powers are changed in a number of ways.
Clause 26 creates a new section 169.1 in IRPA which provides that members of the RPD are no longer appointed by the Governor in Council, but instead are appointed in accordance with the Public Service Employment Act.7 Members of the Immigration Division of the IRB continue to be employed as public servants (pursuant to section 172 of IRPA). It also provides that the RPD consists of a Deputy Chairperson, an Assistant Deputy Chairperson and other members, including coordinating members.
All members of the Immigration and Refugee Board must continue to swear an oath or give a solemn affirmation of office (clause 17, creating new section 152.1). However, members of the RPD are no longer included in the following provisions, which continue to apply to the Chairperson and members of the IAD and the RAD and not to members of the Immigration Division (clause 18 of the bill and section 153 of IRPA):
- appointment by the Governor in Council to hold office during a term of up-to seven years subject to removal by the Governor in Council only for cause;
- eligibility for reappointment in the same or another capacity;
- remuneration set by the Governor in Council;
- terms of appointment including conflicting office or employment; and
- qualification quotas requiring that at least 10% of the members of these divisions be lawyers or notaries with memberships in good standing in their governing provincial bars, law societies or notaries’ chambers.
Clause 19 amends section 159 of IRPA, which governs the powers and duties of the Chairperson, who is the chief executive officer of the IRB. Broadly stated, this clause limits the Chairperson’s ability to exercise certain powers over the RPD, while specifying that he or she continues to be able to exercise those powers with respect to members of the RAD and IAD.
The Chairperson continues to have supervision over and direction of the work and staff of the entire Board pursuant to section 159(1)(a). Currently, section 161(1) of IRPA allows the Chairperson to make rules governing the practice and procedures of all four divisions of the IRB. Clause 20 amends this section of the IRPA to include in the Chairperson’s rule-making authority the power to make rules governing the new step in the refugee determination process, the refugee claimant’s initial interview before the RPD (discussed later). It also amends section 161(1) of IRPA to remove the need for the Chairperson to consult with the Director of the Immigration Division before making rules regarding the procedures and practices of any division.
Pursuant to Bill C-11, the Chairperson no longer has the ability to assign at any time members to the RPD, to assign a member of the RPD to work in another office or district to meet operational needs, or to designate coordinating members of the RPD pursuant to sections 159(1)(b) to (d). The Chairperson continues to exercise these powers in respect of members of the RAD and the IAD. Clause 19 amends the length of time that members of the RAD and IAD may be assigned by the Chairperson to different regions or districts based on operational needs from up to 90 days to up to 120 days.
Clause 19 preserves additional powers of the Chairperson while somewhat restricting their ambit. For example, the Chairperson continues to have the power to issue guidelines and to delegate certain powers. Clause 19 amends section 159 of IRPA, changing from a mandatory to a permissive power the ability of the Chairperson to choose when and if a coordinating member should be appointed.
Clause 30 amends section 176(1) of the Act to provide that the Chairperson may request the Minister to decide whether any member of the IAD or the RAD should be subject to remedial or disciplinary measures if the member has become incapacitated by reason of infirmity; has been guilty of misconduct; has failed in the proper execution of the office; or has been placed, by conduct or otherwise, in a position that is incompatible with the execution of that office. Under the bill, the Chairperson no longer has the power to refer members of the RPD for disciplinary decisions before the Minister.
Bill C-11 makes significant changes to the process for making a claim for refugee protection from inside Canada. Major changes include the creation of an initial interview stage before the RPD in advance of the claimant’s refugee determination hearing; the requirement that a refugee hearing be held before a one-member panel of the RPD; the implementation of an appeal body with the ability to hold a hearing; and the provision that two groups of refugee claimants – those who are members of designated groups and those whose claims are found to be manifestly unfounded – may be subject to time limits that differ from the time limits for other claimants.
The first reading version of Bill C-11 prevented designated groups from accessing the appeal body and did not set out the criteria for designating groups. A number of witnesses who appeared before the House of Commons Standing Committee on Citizenship and Immigration raised concerns surrounding these two elements, and the committee subsequently amended the relevant parts of Bill C-11 substantially. It added provisions giving all claimants access to the appeal body, and it set out the criteria which must be met in order for the Minister to designate countries, parts of countries or classes of nationals. At the same time, however, the committee added the category of persons whose claims are found to be “manifestly unfounded,” along with the stipulation that such persons and persons from certain designated groups may be subject to hearing time limits that differ from those which apply to other claimants.
The first reading version of Bill C-11 also included the creation of a new initial interview prior to a hearing, but time limits were not set out. Concerns were raised about initial interviews occurring without sufficient time to prepare. Amendments by the House of Commons Standing Committee on Citizenship and Immigration provide that the interview must be no earlier than 15 days after the day on which the claim is referred, unless the claimant consents to an earlier date.
Section 99(3) of IRPA currently provides that a claim for refugee protection from within Canada must be made to an immigration officer who determines within three working days, pursuant to IRPA section 100(1), whether the claim is eligible to be referred to the RPD. Once referred, the claim proceeds to a hearing before the RPD pursuant to section 170 of IRPA. During this hearing both the refugee claimant and the Minister of Citizenship and Immigration may present evidence, question witnesses and make representations regarding whether the person, is, in fact a refugee or a person in need of protection.
Clause 11 of the bill creates a new step in the process for referred claims: prior to his or her hearing before the RPD, the claimant must attend an interview with an official on a date fixed by the referring officer in accordance with the rules of the Board. The date for the interview is to be no earlier than 15 days after the day on which the claim is referred, unless the claimant consents to an earlier date.
During the interview, the official of the RPD has the power to question witnesses (clause 27), a power previously restricted to the RPD hearing. The official of the Board conducting the interview must fix a date for the claimant to attend a hearing before the RPD, in accordance with the regulations and any directions of the IRB Chairperson (clause 11, new section 100(4.1)).
If a claimant fails to attend the initial interview with an official, the Division may find that a proceeding before it has been abandoned (clause 24). Previously, section 168(1) of IRPA provided that a failure to appear for a hearing, a failure to provide information required or a failure to communicate with the Division on request could result in a finding that the claim had been abandoned.
The interview is also included in the proceedings covered by regulations governing 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 any division of the Board (clause 8).
Clause 21 amends section 163 of the Act to provide that matters before any division of the IRB must be conducted before a single member, unless it is a matter before either the RAD or the IAD and the Chairperson is of the opinion that a matter requires a panel of three members. Previously, the Chairperson had the ability to appoint panels of three to determine claims before the RPD as well. This power has now been removed. The Chairperson continues to have no power to appoint panels of three for matters before the Immigration Division.
As previously discussed, when IRPA received Royal Assent on 1 November 2001, the Act included text which proposed the creation of a Refugee Appeal Division (RAD) within the IRB; however, the sections of IRPA creating the RAD are currently not in force and the RAD has never come into existence. Bill C-11 proposes changes to the original, unproclaimed sections in IRPA designed to create the RAD. It also proposes to bring the amended sections concerning the RAD into force two years after Bill C-11 receives Royal Assent.
Clause 14 provides that the RAD may refer a matter back to the RPD for a redetermination only in circumstances where the RAD is of the opinion that the decision of the RPD is wrong in law, in fact or in mixed law and fact; and it cannot make an appeal decision without hearing evidence that was presented to the RPD. Clause 22 amends section 165 (not currently in force) to provide that members of the RAD now have the powers of Commissioners appointed under Part I of the Inquiries Act,whereas previously these powers were provided to members of the RPD and Immigration Division. Commissioners under Part I of the Inquiries Act have the powers of a civil court to enforce the attendance of witnesses and compel them to give evidence. They also have the power to summon witnesses and to require the production of evidence or documents deemed required for a full investigation into the matters they are appointed to examine.
Clause 13(2) replaces section 110(3) (not currently in force) to amend the procedure for the RAD. The original section 110(3) provides that the RAD may accept written submissions from the Minister, the person who is the subject of the appeal, a representative or agent of the United Nations High Commissioner for Refugees, and any other person described in the rules of the Board. However, clause 13 amends section 110(3) to provide that the Minister and the person who is the subject of the appeal may now provide not only written submissions, but also documentary evidence to the RAD. Clause 13 also amends section 110(3) to provide that the RAD “must,” rather than “shall,” proceed without a hearing on the basis of the record of the proceedings of the RPD.
Regarding what new evidence the person concerned and the Minister may provide to the RAD, new section 110(4) (clause 13) states that the person who is the subject of the appeal may only present evidence that arose after the rejection of his or her claim or evidence that was not reasonably available or that the person could not reasonably have been expected in the circumstances to have presented at the time the refugee claim was rejected by the RPD.
However, new section 110(4) is silent with respect to what documentary evidence the Minister may submit to the RAD. This raises the issue of how this section could be interpreted in the future by courts. For example, it is possible this section could be interpreted to mean that the Minister may present any evidence to the RAD he or she chooses, including evidence that the Minister could have presented at the RPD hearing.
New section 110(5) (clause 13) states that when the person subject to the appeal is presenting evidence in response to evidence presented by the Minister, he or she is not restricted by the limitations of new section 110(4). The claimant’s responding evidence could have arisen or have been reasonably available prior to the rejection of the claim before the RPD.
Notwithstanding the fact that section 110(3) provides that paper hearings, as opposed to in-person hearings, before the RAD will be the norm, new section 110(6) (clause 13) does empower the RAD to hold an in-person hearing if the documentary evidence provided by the Minister or the person concerned raises a credibility issue (under new section 110(4)). In deciding whether an in-person hearing is necessary, new section 110(6) states that the RAD must be satisfied that the evidence (1) raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (2) be central to the decision with respect to the refugee protection claim; and (3) would justify allowing or rejecting the refugee protection claim, if the evidence is accepted. Paper appeals before the RAD must be filed and perfected within the time limits set out in the regulations (new sections 110(2.1) and (3.1)), but the regulatory time limits will not apply to in-person hearings held pursuant to new section 110(6).
Clause 28 addresses proceedings before the RAD, replacing section 171(a) (not currently in force) and creating new sections 171(a), (a.1), (a.2), (a.3) and (a.4). New section 171(a) provides that the RAD must give notice of any hearing to both the Minister and the person who is the subject of the appeal. New section 171(a.1) provides that, subject to the rules governing the introduction of new evidence before the RAD (section 110(4)), if an in-person hearing is held, the RAD must give the Minister and the person who is the subject of the appeal the opportunity to present evidence, question witnesses and make submissions. New sections 171(a.2) and 171(a.3) further provide that the RAD is not bound by any legal or technical rules of evidence and that the RAD may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances.
Finally, new section 171(a.4) provides that the Minister may, after giving notice in accordance with the rules, intervene in the appeal, including intervening for the purpose of filing submissions. This provision is found in the current version of section 171(a) of the Act, which will be repealed and replaced by clause 28.
Clause 25 widens the powers of the RAD in terms of how it renders decisions. Currently, section 169(c) of IRPA specifies that the RAD must render its decision in writing. Clause 25 amends the provision to empower the RAD to render decisions orally, as the other divisions of the IRB are already empowered to do.
Bill C-11 provides that two groups of refugee claimants – those who are members of designated groups and those whose claims are found to be manifestly unfounded – may be subject to time limits that differ from the time limits for other claimants.
Clause 12 creates new section 109.1(1), which provides that the Minister may designate by order nationals of a country or a part of a country, or a class of nationals of a country. The Minister may make a designation only if the thresholds set out in the regulations relating to the number of claims lodged by nationals of the country in question and the rate of the RPD’s acceptance of such claims are met (new section 109.1(1.1)). In making a designation, the Minister must take the following into account:
- the human rights record of the country in question as it relates to:
- the factors used to determine if the applicant is a person in need of refugee protection or a person in need of protection (as set out in sections 96 and 97 of IRPA);
- international human rights instruments set out in the regulations; and
- any other international instrument the Minister considers relevant;
- the availability of mechanisms for seeking protection and redress in the country in question;
- the rate of acceptance by the RPD and appeals of claims made by nationals of the country in question that are allowed by the RAD; and
- any other criteria set out in the regulations (new section 109.1(1.2)).
These Ministerial orders designating a country, area or group are not considered statutory instruments pursuant to the Statutory Instruments Act8 (clause 12, creating section 109.1(2) of IRPA); however, such orders must still be published in the Canada Gazette. This means that the Ministerial orders will not be considered to be regulations, notwithstanding section 2(1) of the Statutory Instruments Act, which normally classifies Ministerial orders as such. These orders are thus exempted from the procedure which normally applies to regulations made pursuant to the Statutory Instruments Act, whereby proposed regulations must be sent to the Clerk of the Privy Council for examination, registration, scrutiny by Parliament, and publication in the Canada Gazette according to certain specified procedures.
New section 107.1 provides that if the RPD rejects a claim for refugee protection, it may state in its reasons for the decision that the claim is manifestly unfounded if the RPD is of the opinion that the claim is clearly fraudulent.
18.104.22.168 Different Time Limits for Claimants From Designated Countries or With Manifestly Unfounded Claims (Clause 14.1)
Clause 14.1 creates new section 111.1, which provides that the regulations may set time limits for the following:
- the initial interview described in new section 100(4.1);
- an appeal before the RAD;
- the making of a decision by the RAD;
- the extension of the time limits; and
- the circumstances under which the time limits do not apply.
New section 111.1(2) provides that the regulations may set out different time limits for RPD hearings for claimants from designated countries, areas, or groups than for all other claimants.
New sections 111.1(3) and (4) provide that regulations may set out time limits for the filing and perfecting of appeals to the RAD and for the making of appeal decisions by the RAD for claimants from designated countries, areas, or groups and for claimants whose claims are found to be manifestly unfounded by the RPD that are different than those for other claimants.
Currently, section 25(1) of IRPA provides that the Minister may examine humanitarian and compassionate considerations relating to foreign nationals who are inadmissible to Canada or who do not meet the requirements of IRPA, taking into account the best interests of a directly affected child or public policy considerations. Specifically, section 25(1) of IRPA provides the Minister with two powers: (1) the power to grant permanent resident status and (2) the power to grant an exemption from any applicable criteria or obligation of the Act based on these humanitarian and compassionate considerations.
Pursuant to section 25 the Minister may establish public policies under the Act. Examples of public policies which have been used to facilitate immigration to Canada under this section of the Act include granting permanent residence or providing fee exemptions to groups of persons impacted by natural disasters or civil unrest, persons victimized by human traffickers, or partner-spouses in Canada without legal immigration status, notwithstanding the inability of these persons to meet one or more criteria specified under IRPA.9
Under section 25(1), foreign nationals inside or outside Canada may apply for permanent residence or exemption from any applicable criteria or obligations under the Act on humanitarian and compassionate grounds (hereinafter an application on humanitarian and compassionate grounds). Alternatively, the Minister may on his or her initiative consider circumstances of foreign nationals pursuant to section 25. The Minister is obliged to consider applications made by foreign nationals within Canada but is not obliged to consider applications made by a foreign national outside of Canada.
Clauses 4 and 5 of Bill C-11 amend section 25(1) to divide the humanitarian and compassionate decision making process into three Ministerial powers. Clauses 4 and 5 also limit the Minister’s consideration of public policy considerations to situations where the Minister, on his or her initiative, undertakes an examination of the foreign national’s circumstances (new section 25.2). In other words, when a foreign national submits an application under section 25(1) of the IRPA, the Minister or his or her delegate may only consider humanitarian and compassionate considerations, taking into account the best interests of a child affected by a decision. Only when the Minister or his delegate undertakes an examination of the foreign national’s circumstances on his or her initiative can the Minister grant permanent residence or exempt a foreign national from any applicable criteria or obligations under the Act based both on humanitarian and compassionate considerations and public policy considerations.
In cases where a foreign national submits an application on humanitarian and compassionate grounds, clause 4 creates a new section 25(1.1), which provides that the Minister is not seized of the applicant’s request unless the applicable fees have been paid. However, new section 25.1(2), introduced by clause 5 of the bill, provides that the Minister, when examining a foreign national’s circumstances on his or her own initiative, may exempt a foreign national from the payment of any applicable fees.
In addition to the changes described above, clause 4 creates a new section 25(1.3), which specifies that the Minister may not consider factors taken into account during refugee determination when examining an application on humanitarian and compassionate grounds made by a foreign national, but the Minister must consider elements related to the hardships that affect the foreign national.10 These amendments would prevent the consideration in humanitarian and compassionate applications of such factors as well-founded fear of persecution, risk to life, and risk of cruel and unusual treatment or punishment. These factors will be considered separately during the refugee protection determination process.
The first reading version of Bill C-11 created a 12-month prohibition on filing an application for permanent residence on humanitarian and compassionate grounds after a failed, withdrawn, or abandoned claim for refugee protection. Concerns were raised that this provision would prevent humanitarian and compassionate considerations from serving as a final, catch-all remedy for potential injustices.11 Amendments made by the Standing Committee on Citizenship and Immigration eliminated this 12-month prohibition.
Clause 4 amends the English text of section 25(1) to state that the Minister “must, on request” examine the circumstances of a foreign national in Canada making an application on humanitarian and compassionate grounds. The English text of section 25(1) currently reads the Minister “shall, on request.” The French text remains unchanged, stating that the Minister “doit, sur demande,” which translates as “must, on request.”
Section 11 of the Interpretation Act12 states that the expression “shall” is to be construed as imperative. However, interpretation of the use of the word “shall” in jurisprudence has suggested that “shall” may be found to be directory rather than mandatory in nature depending on the context; thus “shall” may be a command or a future event.13 While “must” is much less frequently used in legislation and thus has had less judicial consideration, it is generally seen as mandatory and not directive, i.e., a common imperative with no other meaning.14 It would appear that replacing “shall” with “must” has been done to minimize disagreement and any possible resulting litigation over the strength of the requirement that the Minister consider an application on humanitarian and compassionate grounds.
Clause 6 of Bill C-11 extends the existing powers of the Minister to make regulations to include the power to make regulations concerning new sections 25.1 and 25.2. Clause 9 also requires the Minister to report to Parliament on the number of people granted permanent residence on humanitarian and compassionate grounds or on public policy considerations pursuant to new sections 25(1), 25.1(1) and 25.2(1).
When an individual makes a claim for refugee protection from inside Canada, a removal order conditional on the outcome of the claim is issued against the person. If the refugee claim is successful, the removal order pertaining to the claimant will be deemed void when permanent residence is obtained.15 Removal orders pertaining to failed refugee claimants will usually come into force 15 days following the refusal.16 At this time the person is given notice that he or she may apply for a pre-removal risk assessment (PRRA), subject to certain eligibility criteria.17
Applying for a PRRA normally stays a person’s removal from Canada until a decision is made on the application.18 The PRRA decision is made immediately prior to removal in order to ensure a timely risk assessment such that the person is deported in a way that complies with Canada’s international human rights obligations as well as the individual’s Charter rights to life, liberty and security of the person.19 The PRRA assessment is made by an employee of Citizenship and Immigration Canada who seeks to determine if a person may be safely removed from Canada based exclusively on evidence not available at the time of the refugee hearing or which arose since the hearing, due, for example, to a change in the destination country. If an applicant is determined to be ready for removal that person must leave Canada once travel arrangements are finalized.20
Clause 15 adds section 112(2)(b.1) to the IRPA. New section 112(2)(b.1) states that persons subject to a removal order may not apply for a pre-removal risk assessment if their claim for refugee protection was rejected, abandoned, or withdrawn within the last 12 months.
New section 112(2.1) empowers the Minister to exempt from the 12-month bar on applying for a PRRA nationals of certain countries, habitual former residents of certain countries, persons who before leaving a country last resided in a given part of that country, and persons belonging to a class of nationals or habitual former residents of a country (Clause 15(2)).
New section 112(2.3) provides that regulations may govern any matter relating to the application of new sections 112(2.1) or (2.2). The regulations may include provisions establishing the criteria to be considered when an exemption is made.
Clause 15 amends section 112(1) of IRPA to provide that the RPD will now conduct most pre-removal risk assessments; these assessments were formerly conducted by Citizenship and Immigration Canada. The Minister will continue to conduct pre-removal risk assessments for persons determined to be inadmissible on grounds of security, violating human or international rights, or serious or organized criminality (new section 112(1.1)). If the RPD has notice that the applicant may be inadmissible or ordered extradited from Canada, the pre-removal risk assessment will be suspended, and where the applicant is found to be inadmissible, it will be transferred to the Minister.
Clause 25 provides that RPD pre-removal risk assessment decisions must be rendered in writing. It further provides that notice of and written reasons for these decisions must be provided to the Minister, who must then provide the notice and reasons to the applicant in accordance with the timeframes and manner set out in the regulations.
New clause 16.1 provides that the Minister will continue to and the RPD will now have the ability to reject pre-removal risk assessment decisions found to have resulted from misrepresentation or the withholding of relevant facts.
Clause 16 provides that, when the Minister is of the opinion that a hearing is required, the Minister may hold hearings for inadmissible applicants on the basis of prescribed factors. New section 113(b.1) provides that the RPD will conduct paper reviews of new evidence submitted by the applicant and the Minister for the pre-removal risk assessment. New section 113(b.3) provides that the RPD may hold a hearing if it is of the opinion that the documentary evidence presented raises a serious issue with respect to the credibility of the applicant, is central to the decision, or would justify allowing the application if accepted.
New section 113 provides that the applicant may present only evidence that arose after the rejection of his or her claim for refugee protection or most recent claim for protection or that the applicant could not reasonably have been expected to have provided at the time of the rejection (as is the case under CIC responsibility for PRRA decisions). However, new section 113(b.2) provides that the applicant may present any evidence in response to evidence presented by the Minister and is silent with respect to what documentary evidence the Minister may submit to the RPD for the pre-removal risk assessment.
These provisions, which mirror the language in new section 110(4) regarding evidence that may be submitted before the RAD by the Minister, raise the issue of how section 113 could be interpreted in the future by the courts. For example, it is possible that this section could be interpreted to mean that the Minister may present any evidence he or she chooses to the RPD, including evidence that the Minister could have presented at the refugee protection determination or the most recent application for protection.
New clause 27.1 provides that the RPD may inquire into any matter that it considers relevant in order to determine if a pre-removal risk assessment application is well founded. It further provides that the RPD must provide the Minister, on request, with the documentary evidence and written submissions of the applicant undergoing a paper assessment under new section 113(b.1) and that the RPD must give notice of a hearing to the applicant and to the Minister.
Section 24 of IRPA provides that an officer may issue a temporary resident permit to a foreign national who is inadmissible or does not meet the requirements of IRPA if the officer is of the opinion that issuing the permit is justified in the circumstances. The officer must act in accordance with any instructions the Minister may make. A permit may be cancelled at any time. If the permit is not cancelled, it is valid for up to three years or for the period of time the permit specifies, unless the permit holder leaves Canada without authorization to re-enter the country.21
Clause 3 of the bill amends section 24 of IRPA to specify that foreign nationals whose claims for refugee protection have been rejected or determined to be withdrawn or abandoned may not request a temporary resident permit if less than 12 months have passed since their claim for refugee protection was finalized.
Section 36(3)(e) of IRPA currently provides that any conviction under the Youth Criminal Justice Act22 will not be considered when determining if a foreign national is inadmissible to Canada. Clause 7 amends section 36(3)(e) of the Act to provide that youth who received an adult sentence under the Youth Criminal Justice Act will now be considered inadmissible to Canada.
Leave for judicial review by the Federal Court can be sought for any administrative decision made under IRPA,23 which would include a decision made by the RAD. Clause 41 of the bill amends section 5.1(1) of the Federal Courts Act24 to provide that the Federal Court of Canada consists of 36 judges in addition to the Chief Justice of the Federal Court. This amendment provides for the appointment of four new judges to the court.
Clause 42 provides that the provisions of Bill C-11 will come into force two years after the day on which the bill receives Royal Assent, or on an earlier day(s) to be fixed by the Governor in Council with the exception of clauses 3 to 6, 9, 13, 14, 28 and 31. Thus, changes to humanitarian and compassionate considerations (clauses 4 to 6 and 9) and the restriction on temporary resident permits (clause 3) come into force immediately upon Royal Assent and the remainder of the changes proposed in Bill C-11 will come into force two years after the bill receives Royal Assent at the latest.
Clause 42 provides that amendments to the unproclaimed text of IRPA relating to the Refugee Appeal Division will come into force immediately upon Royal Assent; however, the provisions creating the RAD and governing its operation will not immediately come into force. Clause 31 provides that sections 73, 110, 111, 171, 194 and 195 will come into force two years after the day on which the bill receives Royal Assent or on an earlier day that may be fixed by order of the Governor in Council. Thus, the provisions creating the Refugee Appeal Division and the sections governing appeals to the RAD will also come into force two years after the bill receives Royal Assent.
Clause 32 of the bill provides that applications made under section 25 of IRPA immediately before the day on which the Act receives Royal Assent shall be read in accordance with the Act as it read immediately before Bill C-11 received Royal Assent. Clause 39 provides that claimants with pending claims before the RPD on the day that the provisions creating the RAD come into force may still make applications on humanitarian and compassionate grounds.
Clause 33 provides that Bill C-11 will apply to all claims for refugee protection made before this bill comes into force where the claimant for refugee protection has not yet submitted a Personal Information Form,25 as defined in section 1 of the Refugee Protection Division Rules, and the time limit for submitting that form has not yet expired. Clause 33 further provides that an official of the IRB may set a date for the initial interview referred to in section 100(4) for claimants included in the new provisions of Bill C-11.
Clause 34 states that on the day this bill comes into force, claimants for refugee protection who have not had an RPD hearing where substantive evidence was heard and who have submitted a Personal Information Form must attend an interview with an official of the IRB, if required to do so, on the date fixed by the official in accordance with the RPD Rules and must produce any supplementary documents and information the official considers necessary. All provisions of Bill C-11 will apply to these claimants except sections 100(4) and (4.1).
Clause 35 provides that claims for refugee protection where substantive evidence has been heard by the RPD before the day on which new section 18(1) comes into force must continue to be heard by that RPD member or panel of members pursuant to the Act as it read immediately before the day new section 18(1) comes into force. However, if the single member is unable to continue to hear the claim, the claim must be referred to the RPD as amended, and must be conducted in accordance with the modified hearing procedures the bill introduces. Further, if one member of a panel of three is unable to hear the claim, the claim must continue to be heard by one of the two remaining members in accordance with the Act as it read immediately before the coming into force of new section 18(1).
Clause 36 of the bill provides that decisions of the RPD made before Bill C-11 comes into force may not be appealed to the RAD after the bill comes into force.
Clause 37 provides that if the decision of the RPD is set aside in a judicial review to the Federal Court, the claim for refugee protection must be referred to a member of the RPD, prior to a judicial review.
Persons in respect of whom refugee protection decisions have been made under the Act as it read prior to the coming into force of Bill C-11 do not need to wait for 12 months before applying for protection under section 112(1) for a pre-removal risk assessment (clause 36(2)).
Clause 38 provides that the bar on applying for a pre-removal risk assessment if less than 12 months have passed since a claim for refugee protection was rejected, withdrawn or abandoned does not apply to applications for pre-removal risk assessment made before the day on which Bill C-11 comes into force.
Clause 42 provides that most provisions of Bill C-11 will come into force two years from the day the bill receives Royal Assent. However, changes to humanitarian and compassionate considerations and a restriction on temporary resident permits will come into force upon Royal Assent. The provisions related to the transfer of responsibility for PRRA decisions from CIC to the IRB will come into effect three years after the bill receives Royal Assent.
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
- Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [ Return to text ]
- Singh v. Minister of Employment and Immigration,  1 S.C.R. 177 (Supreme Court of Canada). [ Return to text ]
- For details on Canada’s in-land refugee determination system prior to the coming into force of the provisions of Bill C-11 by spring 2012 see Penny Becklumb, Canada's Inland Refugee Protection System, Publication no. BP-185, Parliamentary Information and Research Service, Library of Parliament, 16 September 2008. [ Return to text ]
- Immigration and Refugee Board, Report on Plans and Priorities 2010-2011 pp. 7–9. [ Return to text ]
- Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. [ Return to text ]
- The IAD has the jurisdiction to hear appeals initiated by the following persons: a permanent resident outside Canada appealing a decision that he or she has not met the residency requirements; sponsors appealing an officer’s decision to refuse a permanent residence visa application made by that sponsor’s family member; and foreign nationals who hold permanent resident visas and are ordered removed from Canada. See IRPA, s. 63. [ Return to text ]
- Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13. [ Return to text ]
- Statutory Instruments Act, R.S.C. 1985, c. S-22. [ Return to text ]
- Aguilar Espino v. Canada (Minister of Citizenship and Immigration), 2007 FC 74, 308 F.T.R. 92 (Eng.), (Federal Court of Canada) per Justice E.R. Dawson, paras. 42–44. [ Return to text ]
- Hardship is one of the criteria currently used by delegates of the Minister when assessing humanitarian and compassionate applications. “Hardship” is defined as follows in Citizenship and Immigration Canada, Section 5.6, “The assessment of hardship,” in IP5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds (919 Kb, 113 pages) (Operational Manual: Inland Processing), 6 November 2009:
Unusual and undeserved hardship: The hardship faced by the applicant (if they were not granted the requested exemption) would be, in most cases, unusual. In other words, a hardship not anticipated by the Act or Regulations; and
The hardship faced by the applicant (if they were not granted the requested exemption) would be, in most cases, the result of circumstances beyond the person’s control.
orDisproportionate hardship: Sufficient humanitarian and compassionate grounds may also exist in cases that would not meet the “unusual and undeserved” criteria but where the hardship of not being granted the requested exemption(s) would have an unreasonable impact on the applicant due to their personal circumstances.”
The following observation about “hardship” is made in Hawthorne v. Canada (Minister of Citizenship and Immigration),  F.C.J. No. 1687, 222 D.L.R. (4th) 265, 2002 FCA 475, Federal Court of Appeal per Justice Decary, para. 9:
“[H]ardship” is not a term of art ... [T]he administrative definition of “unusual and undeserved hardship” and “disproportionate hardship” in the [Immigration] Manual are “not meant as ’hard and fast’ rules” and are, rather, “an attempt to provide guidance to decision makers when they exercise their discretion”. It is obvious, for example, that the concept of “undeserved hardship” is ill-suited when assessing the hardship on innocent children. Children will rarely, if ever, be deserving of any hardship. [ Return to text ]
- House of Commons, Standing Committee on Citizenship and Immigration, Evidence, Meeting 15, 3rd Session, 40th Parliament, 11 May 2010, 1820 (Peter Showler, Professor, Human Rights Research and Education Centre, University of Ottawa, as an individual); and 2025 (Geraldine Sadoway, Staff Lawyer, Immigration and Refugee Group, Parkdale Community Legal Services). [ Return to text ]
- Interpretation Act, R.S., 1985, c. I-21. [ Return to text ]
- Duong v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 109, 197 F.T.R. 158 (Federal Court) per Justice Tremblay-Lamer, paras. 7–9; and Lam v. Canada (Minister of Employment and Immigration),  1 F.C. 613, 15 Imm. L.R. (Federal Court) per Justice Teitelbaum, para. 31. [ Return to text ]
- U.A.W., Local 458 v. Massey-Ferguson Industries Ltd. (1979), 94 D.L.R. (3d) 743, 23 O.R. (2d) 56 (Ontario Divisional Court) per Justice Reid, paras. 8, 9, 10, 11, 12, 1, 14, 16, and 17. [ Return to text ]
- IRPA, s. 51. [ Return to text ]
- See IRPA, s. 49(2), for the different categories which may apply to different situations of specific claimants. [ Return to text ]
- IRPA, s. 112. [ Return to text ]
- Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], s. 232. [ Return to text ]
- See Figurado v. Canada (Solicitor General), 28 Admin. L.R. (4th) 82, 262 F.T.R. 219, especially para. 40. Risks are assessed based on risk of persecution, risk of torture, risk to life or risk of cruel and unusual treatment/punishment (IRPA, ss. 96–98); persons inadmissible to Canada due to violating human/international rights or serious criminality will only be assessed based on risk of torture, risk to life, or risk of cruel/unusual punishment/treatment (see discussion in Martin Jones and Sasha Baglay, Refugee Law, Irwin Law, Toronto, 2007, p. 336). [ Return to text ]
- Jones and Baglay (2007), p. 338. [ Return to text ]
- IRPR, s. 63. [ Return to text ]
- Youth Criminal Justice Act, S.C. 2002, c. 1. [ Return to text ]
- IRPA, s. 72. [ Return to text ]
- Federal Courts Act, R.S.C. 1985, c. F-1. [ Return to text ]
- A “Personal Information Form” (PIF) is the form in which a claimant for refugee protection gives information set out in Schedule 1 of the Refugee Protection Division Rules, which requires the disclosure of a great number of listed personal details, as well as the reason the person is claiming refugee protection and the facts supporting the claim. [ Return to text ]