C-11 1 37 49-50 Elizabeth II 2001

An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger

Immigration and Refugee Protection Act

Immigration and Refugee Protection 2001 11 1 27 2001 90141

SUMMARY

This enactment replaces the existing Immigration Act , providing clearer, modern legislation to ensure that Canada’s immigration and refugee protection system is able to respond to new challenges and opportunities. The enactment provides for

(

a) objectives that reflect the values of Canadian society;

(

b) effective reporting to Parliament through a complete, consolidated annual report;

(

c) agreements that facilitate cooperation with provinces and foreign states;

(

d) a description of the major classes of foreign nationals — economic class, family class, and Convention refugees and persons in similar circumstances;

(

e) recognition of Canada’s commitment to the principle of the “best interest of the child”;

(

f) clear, objective residency requirements for permanent residents;

(

g) a strong, effective refugee protection program that incorporates the protection grounds of the Geneva Convention and the Convention Against Torture and the grounds of risk to life or of cruel and unusual treatment or punishment;

(

h) a more efficient refugee determination process through greater use of single member panels;

(

i) a Refugee Appeal Division within the Immigration and Refugee Board to enhance fairness and consistency in decision-making;

(

j) tightened ineligibility provisions for serious criminals, security threats and repeat claimants who seek access to the refugee protection process of the Immigration and Refugee Board;

(

k) formalization of a pre-removal risk assessment to review changed circumstances related to risk of return;

(

l) inadmissibility provisions for criminals, persons who constitute security threats, violators of human rights and persons who should not be allowed into Canada because of fraud, misrepresentation, financial reasons or health concerns;

(

m) clear detention criteria with authority to further clarify detention grounds in regulations;

(

n) enhanced procedures for dealing with security threats through admissibility hearings and the security certificate process;

(

o) offences for human smuggling and trafficking with a maximum penalty of life in prison;

(

p) penalties for assisting in obtaining immigration status by fraud or misrepresentation; and

(

q) an immigration appeal system that enhances integrity and effectiveness while maintaining fairness and legal safeguards.

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

This Act may be cited as the Immigration and Refugee Protection Act .

INTERPRETATION

Definitions

(1) The

definitions in this subsection apply in this Act.

Board

Commission

Board means the Immigration and Refugee Board, which consists of the Refugee Protection Division, Refugee Appeal Division, Immigration Division and Immigration Appeal Division.

Convention Against Torture

Convention contre la torture

Convention Against Torture means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed at New York on December 10,

Article 1 of the Convention Against Torture is set out in the schedule.

foreign national

étranger

foreign national means a person who is not a Canadian citizen or a permanent resident, and includes a stateless person.

permanent resident

résident permanent

permanent resident means a person who has acquired permanent resident status and has not subsequently lost that status under

section 46.

Refugee Convention

Convention sur les réfugiés

Refugee Convention means the United Nations Convention Relating to the Status of Refugees, signed at Geneva on July 28, 1951, and the Protocol to that Convention, signed at New York on January 31, 1967. Sections E and F of

Article 1 of the Refugee Convention are set out in the schedule.

Act includes regulations

(2) Unless otherwise indicated, references in this Act to “this Act” include regulations made under it.

OBJECTIVES AND APPLICATION

Objectives — immigration

(1) The objectives of this Act with respect to immigration are

(

a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;

(

b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;

( b.1 )

to support and assist the development of minority official languages communities in Canada;

(

c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada;

(

d) to see that families are reunited in Canada;

(

e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society;

(

f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces;

(

g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities;

(

h) to protect the health and safety of Canadians and to maintain the security of Canadian society;

(

i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and

(

j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.

Objectives — refugees

(2) The objectives of this Act with respect to refugees are

(

a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted;

(

b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement;

(

c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution;

(

d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment;

(

e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;

(

f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada;

(

g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and

(

h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals.

Application

(3) This Act is to be construed and applied in a manner that

(

a) furthers the domestic and international interests of Canada;

(

b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;

(

c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;

(

d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms , including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;

(

e) supports the commitment of the Government of Canada to enhance the vitality of the English and French linguistic minority communities in Canada; and

(

f) complies with international human rights instruments to which Canada is signatory.

ENABLING AUTHORITY

Minister

The Minister responsible for the administration of this Act is the member of the Queen’s Privy Council designated as such by the Governor in Council.

Regulations

(1) Except as otherwise provided, the Governor in Council may make any regulation that is referred to in this Act or that prescribes any matter whose prescription is referred to in this Act.

Tabling and referral of proposed regulations

(2) The Minister shall cause a copy of each proposed regulation made pursuant to sections 17, 32, 53, 61, 102, 116 and 150 to be laid before each House of Parliament, and each House shall refer the proposed regulation to the appropriate Committee of that House.

Alteration of proposed regulation

(3) A proposed regulation that has been laid before each House of Parliament under subsection (2) does not need to be so laid again, whether or not it has been altered.

Making of regulations

(4) The Governor in Council may make the regulation at any time after the proposed regulation has been laid before each House of Parliament under subsection (2).

Designation of officers

(1) The Minister may designate any persons or class of persons as officers to carry out any purpose of any provision of this Act, and shall specify the powers and duties of the officers so designated.

Delegation of powers

(2) Anything that may be done by the Minister under this Act may be done by a person that the Minister authorizes in writing, without proof of the authenticity of the authorization.

Exception

(3) Notwithstanding subsection (2), the Minister may not delegate the power conferred by subsection 77(1) or the ability to make determinations under subsection 34(2) or 35(2) or paragraph 37(2)( a ).

AGREEMENTS

International agreements

The Minister, with the approval of the Governor in Council, may enter into an agreement with the government of a foreign state or with an international organization for the purposes of this Act.

Federal-provincial agreements

(1) The Minister, with the approval of the Governor in Council, may enter into an agreement with the government of any province for the purposes of this Act. The Minister must publish, once a year, a list of the federal-provincial agreements that are in force.

Consistency with agreement

(2) Subject to subsection (3) but despite the other provisions of this Act, the following must be consistent with the federal-provincial agreements:

(

a) the selection and sponsorship of, and the acquisition of status by, foreign nationals under this Act; and

(

b) regulations governing those matters, including regulations respecting the examination in Canada of applications to become a permanent resident, or respecting the foreign nationals who may be selected on the basis of an investment in Canada.

Inadmissibility not limited

(3) Subsection (2) is not to be interpreted as limiting the application of any provision of this Act concerning inadmissibility to Canada.

Sole provincial responsibility — permanent residents

(1) Where a province has, under a federal-provincial agreement, sole responsibility for the selection of a foreign national who intends to reside in that province as a permanent resident, the following provisions apply to that foreign national, unless the agreement provides otherwise:

(

a) the foreign national, unless inadmissible under this Act, shall be granted permanent resident status if the foreign national meets the province’s selection criteria;

(

b) the foreign national shall not be granted permanent resident status if the foreign national does not meet the province’s selection criteria;

(

c) the foreign national shall not be granted permanent resident status contrary to the provisions of the law of the province governing the number of foreign nationals who may settle in the province as permanent residents, whether that number is an estimate or a maximum, or governing the distribution of that number among classes of foreign nationals; and

(

d) conditions imposed in accordance with the law of the province have the same force and effect as if they were made under this Act, if they are imposed on a foreign national on or before the grant of permanent resident status.

Sole provincial responsibility — appeals

(2) If a federal-provincial agreement gives a province sole responsibility to establish and apply financial criteria with respect to undertakings that sponsors living in that province may make in respect of a foreign national who applies to become a permanent resident, then, unless the agreement provides otherwise, the existence of a right of appeal under the law of that province respecting rejections by provincial officials of applications for sponsorship, for reasons of failing to meet financial criteria or failing to comply with a prior undertaking, prevents the sponsor, except on humanitarian and compassionate grounds, from appealing under this Act against a refusal, based on those reasons, of a visa or permanent resident status.

Consultations with the provinces

(1) The Minister may consult with the governments of the provinces on immigration and refugee protection policies and programs, in order to facilitate cooperation and to take into consideration the effects that the implementation of this Act may have on the provinces.

Required consultations

(2) The Minister must consult with the governments of the provinces respecting the number of foreign nationals in each class who will become permanent residents each year, their distribution in Canada taking into account regional economic and demographic requirements, and the measures to be undertaken to facilitate their integration into Canadian society.

PART 1

IMMIGRATION TO CANADA

Division 1

Requirements Before Entering Canada and Selection

Requirements Before Entering Canada

Application before entering Canada

(1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.

If sponsor does not meet requirements

(2) The officer may not issue a visa or other document to a foreign national whose sponsor does not meet the sponsorship requirements of this Act.

Selection of Permanent Residents

Family reunification

(1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.

Economic immigration

(2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.

Refugees

(3) A foreign national, inside or outside Canada, may be selected as a person who under this Act is a Convention refugee or as a person in similar circumstances, taking into account Canada’s humanitarian tradition with respect to the displaced and the persecuted.

Sponsorship of Foreign Nationals

Right to sponsor family member

(1) A Canadian citizen or permanent resident may, subject to the regulations, sponsor a foreign national who is a member of the family class.

Group right to sponsor

(2) A group of Canadian citizens or permanent residents, a corporation incorporated under a law of Canada or of a province, and an unincorporated organization or association under federal or provincial law, or any combination of them may, subject to the regulations, sponsor a Convention refugee or a person in similar circumstances.

Obligation

(3) An undertaking relating to sponsorship is binding on the person who gives it.

Instructions of Minister

(4) An officer shall apply the regulations on sponsorship referred to in paragraph 14(2)(

e) in accordance with any instructions that the Minister may make.

Regulations

Regulations

(1) The regulations may provide for any matter relating to the application of this Division, and may define, for the purposes of this Act, the terms used in this Division.

Regulations

(2) The regulations may prescribe, and govern any matter relating to, classes of permanent residents or foreign nationals, including the classes referred to in

section 12, and may include provisions respecting

(

a) selection criteria, the weight, if any, to be given to all or some of those criteria, the procedures to be followed in evaluating all or some of those criteria and the circumstances in which an officer may substitute for those criteria their evaluation of the likelihood of a foreign national’s ability to become economically established in Canada;

(

b) applications for visas and other documents and their issuance or refusal, with respect to foreign nationals and their family members;

(

c) the number of applications that may be processed or approved in a year, the number of visas and other documents that may be issued in a year, and the measures to be taken when that number is exceeded;

(

d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals;

(

e) sponsorships, undertakings, and penalties for failure to comply with undertakings;

(

f) deposits or guarantees of the performance of obligations under this Act that are to be given by any person to the Minister; and

(

g) any matter for which a recommendation to the Minister or a decision may or must be made by a designated person, institution or organization with respect to a foreign national or sponsor.

Division 2

Examination

Examination by officer

(1) An officer is authorized to proceed with an examination where a person makes an application to the officer in accordance with this Act.

Provincial criteria

(2) In the case of a foreign national referred to in subsection 9(1), an examination of whether the foreign national complies with the applicable selection criteria shall be conducted solely on the basis of documents delivered by the province indicating that the competent authority of the province is of the opinion that the foreign national complies with the province’s selection criteria.

Inspection

(3) An officer may board and inspect any means of transportation bringing persons to Canada, examine any person carried by that means of transportation and any record or document respecting that person, seize and remove the record or document to obtain copies or extracts and hold the means of transportation until the inspection and examination are completed.

Instructions

(4) The officer shall conduct the examination in accordance with any instructions that the Minister may give.

Obligation — answer truthfully

(1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.

Obligation — relevant evidence

(2) In the case of a foreign national,

(

a) the relevant evidence referred to in subsection (1) includes photographic and fingerprint evidence; and

(

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

Evidence relating to identity

(3) An officer may require or obtain from a permanent resident or a foreign national who is arrested, detained or subject to a removal order, any evidence — photographic, fingerprint or otherwise — that may be used to establish their identity or compliance with this Act.

Regulations

The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting the conduct of examinations.

Division 3

Entering and Remaining in Canada

Entering and Remaining

Examination by officer

(1) Every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada or is or may become authorized to enter and remain in Canada.

Transit

(2) Subsection (1) also applies to persons who, without leaving Canada, seek to leave an area at an airport that is reserved for passengers who are in transit or who are waiting to depart Canada.

Right of entry of citizens and Indians

(1) Every Canadian citizen within the meaning of the Citizenship Act and every person registered as an Indian under the Indian Act has the right to enter and remain in Canada in accordance with this Act, and an officer shall allow the person to enter Canada if satisfied following an examination on their entry that the person is a citizen or registered Indian.

Right of entry of permanent residents

(2) An officer shall allow a permanent resident to enter Canada if satisfied following an examination on their entry that they have that status.

Obligation on entry

(1) Every foreign national, other than a foreign national referred to in

section 19, who seeks to enter or remain in Canada must establish,

(

a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and

(

b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay.

Provincial criteria

(2) A foreign national referred to in subsection 9(1) must also establish, to become a permanent resident, that they hold a document issued by the province indicating that the competent authority of the province is of the opinion that the foreign national complies with the province’s selection criteria.

Status and Authorization to Enter

Permanent resident

(1) A foreign national becomes a permanent resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(

a) and subsection 20(2) and is not inadmissible.

Protected person

(2) Except in the case of a person described in subsection 112(3) or a person who is a member of a prescribed class of persons, a person whose application for protection has been finally determined by the Board to be a Convention refugee or to be a person in need of protection, or a person whose application for protection has been allowed by the Minister, becomes, subject to any federal-provincial agreement referred to in subsection 9(1), a permanent resident if the officer is satisfied that they have made their application in accordance with the regulations and that they are not inadmissible on any ground referred to in

section 34 or 35, subsection 36(1) or

section 37 or 38.

Temporary resident

(1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(

b) and is not inadmissible.

Dual intent

(2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.

Entry to complete examination or hearing

An officer may authorize a person to enter Canada for the purpose of further examination or an admissibility hearing under this Part.

Temporary resident permit

(1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.

Exception

(2) A foreign national referred to in subsection (1) to whom an officer issues a temporary resident permit outside Canada does not become a temporary resident until they have been examined upon arrival in Canada.

Instructions of Minister

(3) In applying subsection (1), the officer shall act in accordance with any instructions that the Minister may make.

Humanitarian and compassionate considerations

(1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, 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.

Provincial criteria

(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.

Regulations

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

(

a) entering, remaining in and re-entering Canada;

(

b) permanent resident status or temporary resident status, including acquisition of that status;

(

c) the circumstances in which all or part of the considerations referred to in

section 24 may be taken into account;

(

d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals; and

(

e) deposits or guarantees of the performance of obligations under this Act that are to be given to the Minister.

Rights and Obligations of Permanent and Temporary Residents

Right of permanent residents

(1) A permanent resident of Canada has the right to enter and remain in Canada, subject to the provisions of this Act.

Conditions

(2) A permanent resident must comply with any conditions imposed under the regulations.

Residency obligation

(1) A permanent resident must comply with a residency obligation with respect to every five-year period.

Application

(2) The following provisions govern the residency obligation under subsection (1):

(

a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are

(

i) physically present in Canada,

(ii)

outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,

(iii)

outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a province,

(iv)

outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the public service of Canada or of a province, or

(

v) referred to in regulations providing for other means of compliance;

(

b) it is sufficient for a permanent resident to demonstrate at examination

(

i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;

(ii)

if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and

(

c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.

Right of temporary residents

(1) A temporary resident is, subject to the other provisions of this Act, authorized to enter and remain in Canada on a temporary basis as a visitor or as a holder of a temporary resident permit.

Obligation — temporary resident

(2) A temporary resident must comply with any conditions imposed under the regulations and with any requirements under this Act, must leave Canada by the end of the period authorized for their stay and may re-enter Canada only if their authorization provides for re-entry.

Work and study in Canada

(1) A foreign national may not work or study in Canada unless authorized to do so under this Act.

Minor children

(2) Every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level.

Status Document

Status document

(1) A permanent resident and a protected person shall be provided with a document indicating their status.

Effect

(2) For the purposes of this Act, unless an officer determines otherwise

(

a) a person in possession of a status document referred to in subsection (1) is presumed to have the status indicated; and

(

b) a person who is outside Canada and who does not present a status document indicating permanent resident status is presumed not to have permanent resident status.

Travel document

(3) A permanent resident outside Canada who is not in possession of a status document indicating permanent resident status shall, following an examination, be issued a travel document if an officer is satisfied that

(

a) they comply with the residency obligation under

section 28;

(

b) an officer has made the determination referred to in paragraph 28(2)( c ); or

(

c) they were physically present in Canada at least once within the 365 days before the examination and they have made an appeal under subsection 63(4) that has not been finally determined or the period for making such an appeal has not yet expired.

Regulations

Regulations

The regulations may provide for any matter relating to the application of sections 27 to 31, may define, for the purposes of this Act, the terms used in those sections, and may include provisions respecting

(

a) classes of temporary residents, such as students and workers;

(

b) selection criteria for each class of foreign national and for their family members, and the procedures for evaluating all or some of those criteria;

(

c) anything referred to in paragraph (

b) for which a decision or recommendation may or must be made by a designated person, institution or organization;

(

d) the conditions that must or may be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals, including conditions respecting work or study;

(

e) the residency obligation under

section 28, including rules for calculating applicable days and periods; and

(

f) the circumstances in which a document indicating status or a travel document may or must be issued, renewed or revoked.

Division 4

Inadmissibility

Rules of

interpretation

The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.

Security

(1) A permanent resident or a foreign national is inadmissible on security grounds for

(

a) engaging in

an act of espionage or

an act of subversion against a democratic government, institution or process as they are understood in Canada;

(

b) engaging in or instigating the subversion by force of any government;

(

c) engaging in terrorism;

(

d) being a danger to the security of Canada;

(

e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or

(

f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph ( a ), (

b) or ( c ).

Exception

(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.

Human or international rights violations

(1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for

(

a) committing

an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act ;

(

b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act ; or

(

c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.

Exception

(2) Paragraphs (1)(

b) and (

c) do not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.

Serious criminality

(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(

a) having been convicted in Canada of an offence under

an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under

an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

(

b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under

an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

(

c) committing

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 at least 10 years.

Criminality

(2) A foreign national is inadmissible on grounds of criminality for

(

a) having been convicted in Canada of an offence under

an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

(

b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under

an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under

an Act of Parliament;

(

c) committing

an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under

an Act of Parliament; or

(

d) committing, on entering Canada, an offence under

an Act of Parliament prescribed by regulations.

Application

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

(

a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;

(

b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a pardon has been granted and has not ceased to have effect or been revoked under the Criminal Records Act , or in respect of which there has been a final determination of an acquittal;

(

c) the matters referred to in paragraphs (1)(

b) and (

c) and (2)(

b) and (

c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;

(

d) a determination of whether a permanent resident has committed

an act described in paragraph (1)(

c) must be based on a balance of probabilities; and

(

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 under the Young Offenders Act .

Organized criminality

(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for

(

a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under

an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or

(

b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering.

Application

(2) The following provisions govern subsection (1):

( a )

subsection (1) does not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest; and

( b )

paragraph (1)(

a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.

Health grounds

(1) A foreign national is inadmissible on health grounds if their health condition

(

a) is likely to be a danger to public health;

(

b) is likely to be a danger to public safety; or

(

c) might reasonably be expected to cause excessive demand on health or social services.

Exception

(2) Paragraph (1)(

c) does not apply in the case of a foreign national who

(

a) has been determined to be a member of the family class and to be the spouse, common-law partner or child of a sponsor within the meaning of the regulations;

(

b) has applied for a permanent resident visa as a Convention refugee or a person in similar circumstances;

(

c) is a protected person; or

(

d) is, where prescribed by the regulations, the spouse, common-law partner, child or other family member of a foreign national referred to in any of paragraphs (

a) to ( c ).

Financial reasons

A foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themself or any other person who is dependent on them, and have not satisfied an officer that adequate arrangements for care and support, other than those that involve social assistance, have been made.

Misrepresentation

(1) A permanent resident or a foreign national is inadmissible for misrepresentation

(

a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

(

b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;

(

c) on a final determination to vacate a decision to allow the claim for refugee protection by the permanent resident or the foreign national; or

(

d) on ceasing to be a citizen under paragraph 10(1)(

a) of the Citizenship Act , in the circumstances set out in subsection 10(2) of that Act.

Application

(2) The following provisions govern subsection (1):

(

a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and

( b )

paragraph (1)(

b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.

Non-compliance with Act

A person is inadmissible for failing to comply with this Act

(

a) in the case of a foreign national, through

an act or omission which contravenes, directly or indirectly, a provision of this Act; and

(

b) in the case of a permanent resident, through failing to comply with subsection 27(2) or

section 28.

Inadmissible family member

A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if

(

a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or

(

b) they are an accompanying family member of an inadmissible person.

Regulations

The regulations may provide for any matter relating to the application of this Division, may define, for the purposes of this Act, any of the terms used in this Division, and may include provisions respecting the circumstances in which a class of permanent residents or foreign nationals is exempted from any of the provisions of this Division.

Division 5

Loss of Status and Removal

Report on Inadmissibility

Preparation of report

(1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.

Referral or removal order

(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under

section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.

Conditions

(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.

Admissibility Hearing by the Immigration Division

Decision

The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:

(

a) recognize the right to enter Canada of a Canadian citizen within the meaning of the Citizenship Act , a person registered as an Indian under the Indian Act or a permanent resident;

(

b) grant permanent resident status or temporary resident status to a foreign national if it is satisfied that the foreign national meets the requirements of this Act;

(

c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or

(

d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.

Loss of Status

Permanent resident

(1) A person loses permanent resident status

(

a) when they become a Canadian citizen;

(

b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under

section 28;

(

c) when a removal order made against them comes into force; or

(

d) on a final determination under

section 109 to vacate a decision to allow their claim for refugee protection or a final determination under subsection 114(3) to vacate a decision to allow their application for protection.

Permanent resident

(2) A person who ceases to be a citizen under paragraph 10(1)(

a) of the Citizenship Act , other than in the circumstances set out in subsection 10(2) of that Act, becomes a permanent resident.

Temporary resident

A foreign national loses temporary resident status

(

a) at the end of the period for which they are authorized to remain in Canada;

(

b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or

(

c) on cancellation of their temporary resident permit.

Enforcement of Removal Orders

Enforceable removal order

(1) A removal order is enforceable if it has come into force and is not stayed.

Effect

(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.

In force

(1) A removal order comes into force on the latest of the following dates:

(

a) the day the removal order is made, if there is no right to appeal;

(

b) the day the appeal period expires, if there is a right to appeal and no appeal is made; and

(

c) the day of the final determination of the appeal, if an appeal is made.

In force — claimants

(2) Despite subsection (1), a removal order made with respect to a refugee protection claimant is conditional and comes into force on the latest of the following dates:

(

a) the day the claim is determined to be ineligible only under paragraph 101(1)( e );

(

b) in a case other than that set out in paragraph ( a ), seven days after the claim is determined to be ineligible;

( c )

15 days after notification that the claim is rejected by the Refugee Protection Division, if no appeal is made, or by the Refugee Appeal Division, if an appeal is made;

( d )

15 days after notification that the claim is declared withdrawn or abandoned; and

( e )

15 days after proceedings are terminated as a result of notice under paragraph 104(1)(

c) or ( d ).

Stay

A removal order is stayed

(

a) if a decision that was made in a judicial proceeding — at which the Minister shall be given the opportunity to make submissions — would be directly contravened by the enforcement of the removal order;

(

b) in the case of a foreign national sentenced to a term of imprisonment in Canada, until the sentence is completed;

(

c) for the duration of a stay imposed by the Immigration Appeal Division or any other court of competent jurisdiction;

(

d) for the duration of a stay under paragraph 114(1)( b ); and

(

e) for the duration of a stay imposed by the Minister.

Void — permanent residence

A removal order that has not been enforced becomes void if the foreign national becomes a permanent resident.

No return without prescribed authorization

(1) If a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances.

Return to Canada

(2) If a removal order for which there is no right of appeal has been enforced and is subsequently set aside in a judicial review, the foreign national is entitled to return to Canada at the expense of the Minister.

Regulations

Regulations

The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting

(

a) conditions that may or must be imposed, varied, or cancelled, individually or by class, on permanent residents and foreign nationals;

(

b) the circumstances in which a removal order shall be made or confirmed against a permanent resident or a foreign national;

(

c) the circumstances in which status may be restored;

(

d) the circumstances in which a removal order may be stayed, including a stay imposed by the Minister and a stay that is not expressly provided for by this Act;

(

e) the effect and enforcement of removal orders;

(

f) the effect of a pardon under the Criminal Records Act on the status of permanent residents and foreign nationals and removal orders made against them; and

(

g) the financial obligations that may be imposed with respect to a removal order.

Division 6

Detention and Release

Immigration Division

The Immigration Division is the competent Division of the Board with respect to the review of reasons for detention under this Division.

Arrest and detention with warrant

(1) An officer may issue a warrant for the arrest and detention of a permanent resident or a foreign national who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.

Arrest and detention without warrant

(2) An officer may, without a warrant, arrest and detain a foreign national, other than a protected person,

(

a) who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); or

(

b) if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act.

Detention on entry

(3) A permanent resident or a foreign national may, on entry into Canada, be detained if an officer

(

a) considers it necessary to do so in order for the examination to be completed; or

(

b) has reasonable grounds to suspect that the permanent resident or the foreign national is inadmissible on grounds of security or for violating human or international rights.

Notice

(4) If a permanent resident or a foreign national is taken into detention, an officer shall without delay give notice to the Immigration Division.

Release — officer

An officer may order the release from detention of a permanent resident or a foreign national before the first detention review by the Immigration Division if the officer is of the opinion that the reasons for the detention no longer exist. The officer may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer considers necessary.

Review of detention

(1) 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.

Further review

(2) At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention.

Presence

(3) In a review under subsection (1) or (2), an officer shall bring the permanent resident or the foreign national before the Immigration Division or to a place specified by it.

Release — Immigration Division

(1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that

(

a) they are a danger to the public;

(

b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);

(

c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security or for violating human or international rights; or

(

d) the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity.

Detention — Immigration Division

(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.

Conditions

(3) If the Immigration Division orders the release of a permanent resident or a foreign national, it may impose any conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions.

Incarcerated foreign nationals

If a warrant for arrest and detention under this Act is issued with respect to a permanent resident or a foreign national who is detained under another Act of Parliament in an institution, the person in charge of the institution shall deliver the inmate to an officer at the end of the inmate’s period of detention in the institution.

Minor children

For the purposes of this Division, it is affirmed as a principle that a minor child shall be detained only as a measure of last resort, taking into account the other applicable grounds and criteria including the best interests of the child.

Regulations

The regulations may provide for the application of this Division, and may include provisions respecting

(

a) grounds for and conditions and criteria with respect to the release of persons from detention;

(

b) factors to be considered by an officer or the Immigration Division; and

(

c) special considerations that may apply in relation to the detention of minor children.

Division 7

Right of Appeal

Competent jurisdiction

The Immigration Appeal Division is the competent Division of the Board with respect to appeals under this Division.

Right to appeal — visa refusal of family class

(1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.

Right to appeal — visa and removal order

(2) A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision at an examination or admissibility hearing to make a removal order against them.

Right to appeal — removal order

(3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision at an examination or admissibility hearing to make a removal order against them.

Right of appeal — residency obligation

(4) A permanent resident may appeal to the Immigration Appeal Division against a decision made outside of Canada on the residency obligation under

section 28.

Right of appeal — Minister

(5) The Minister may appeal to the Immigration Appeal Division against a decision of the Immigration Division in an admissibility hearing.

No appeal for inadmissibility

(1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

Serious criminality

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.

Misrepresentation

(3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor’s spouse, common-law partner or child.

Humanitarian and compassionate considerations

In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.

Disposition

After considering the appeal of a decision, the Immigration Appeal Division shall

(

a) allow the appeal in accordance with

section 67;

(

b) stay the removal order in accordance with

section 68; or

(

c) dismiss the appeal in accordance with

section 69.

Appeal allowed

(1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,

(

a) the decision appealed is wrong in law or fact or mixed law and fact;

(

b) a principle of natural justice has not been observed; or

(

c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.

Effect

(2) If the Immigration Appeal Division allows the appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker for reconsideration.

Removal order stayed

(1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.

Effect

(2) Where the Immigration Appeal Division stays the removal order

(

a) it shall impose any condition that is prescribed and may impose any condition that it considers necessary;

(

b) all conditions imposed by the Immigration Division are cancelled;

(

c) it may vary or cancel any non-prescribed condition imposed under paragraph ( a ); and

(

d) it may cancel the stay, on application or on its own initiative.

Reconsideration

(3) If the Immigration Appeal Division has stayed a removal order, it may at any time, on application or on its own initiative, reconsider the appeal under this Division.

Termination and cancellation

(4) If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.

Dismissal

(1) The Immigration Appeal Division shall dismiss an appeal if it does not allow the appeal or stay the removal order, if any.

Minister’s Appeal

(2) In the case of an appeal by the Minister respecting a permanent resident or a protected person, other than a person referred to in subsection 64(1), if the Immigration Appeal Division is satisfied that, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case, it may make and may stay the applicable removal order, or dismiss the appeal, despite being satisfied of a matter set out in paragraph 67(1)(

a) or ( b ).

Removal order

(3) If the Immigration Appeal Division dismisses an appeal made under subsection 63(4) and the permanent resident is in Canada, it shall make a removal order.

Decision binding

(1) An officer, in examining a permanent resident or a foreign national, is bound by the decision of the Immigration Appeal Division to allow an appeal in respect of the foreign national.

Examination suspended

(2) If the Minister makes an application for leave to commence an application for judicial review of a decision of the Immigration Appeal Division with respect to a permanent resident or a foreign national, an examination of the permanent resident or the foreign national under this Act is suspended until the final determination of the application.

Reopening appeal

The Immigration Appeal Division, on application by a foreign national who has not left Canada under a removal order, may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice.

Division 8

Judicial Review

Application for judicial review

(1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court.

Application

(2) The following provisions govern an application under subsection (1):

(

a) the application may not be made until any right of appeal that may be provided by this Act is exhausted;

(

b) subject to paragraph 169( f ), notice of the application shall be served on the other party and the application shall be filed in the Registry of the Federal Court — Trial Division (“the Court”) within 15 days, in the case of a matter arising in Canada, or within 60 days, in the case of a matter arising outside Canada, after the day on which the applicant is notified of or otherwise becomes aware of the matter;

(

c) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice;

(

d) a judge of the Court shall dispose of the application without delay and in a

summary way and, unless a judge of the Court directs otherwise, without personal appearance; and

(

e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.

Right of Minister

The Minister may make an application for leave to commence an application for judicial review with respect to any decision of the Refugee Appeal Division, whether or not the Minister took

part in the proceedings before the Refugee Protection Division or Refugee Appeal Division.

Judicial review

Judicial review is subject to the following provisions:

(

a) the judge who grants leave shall fix the day and place for the hearing of the application;

(

b) the hearing shall be no sooner than 30 days and no later than 90 days after leave was granted, unless the parties agree to an earlier day;

(

c) the judge shall dispose of the application without delay and in a

summary way; and

(

d) an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.

Rules

(1) Subject to the approval of the Governor in Council, the Chief Justice of the Federal Court may make rules governing the practice and procedure in relation to applications for leave to commence an application for judicial review, for judicial review and for appeals. The rules are binding despite any rule or practice that would otherwise apply.

Inconsistencies

(2) In the event of an inconsistency between this Division and any provision of the Federal Court Act , this Division prevails to the extent of the inconsistency.

Division 9

Certificates and Protection of Information

Examination on Request by the Minister and the Solicitor General of Canada

Definitions

The

definitions in this

section apply in this Division.

information

renseignements

information means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of either of them.

judge

juge

judge means the Associate Chief Justice of the Federal Court or a judge of the Trial Division of that Court designated by the Associate Chief Justice.

Referral of certificate

(1) The Minister and the Solicitor General of Canada shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court — Trial Division, which shall make a determination under

section 80.

Effect of referral

(2) When the certificate is referred, a proceeding under this Act respecting the person named in the certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination.

Judicial consideration

The following provisions govern the determination:

(

a) the judge shall hear the matter;

(

b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;

(

c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;

(

d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination;

(

e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;

(

f) the information or evidence described in paragraph (

e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the

summary;

(

g) the information or evidence described in paragraph (

e) shall not be included in the

summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person;

(

h) the judge shall provide the permanent resident or the foreign national with a

summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed;

(

i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and

(

j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.

Proceedings suspended

(1) On the request of the Minister, the permanent resident or the foreign national, a judge shall suspend a proceeding with respect to a certificate in order for the Minister to decide an application for protection made under subsection 112(1).

Proceedings resumed

(2) If a proceeding is suspended under subsection (1) and the application for protection is decided, the Minister shall give notice of the decision to the permanent resident or the foreign national and to the judge, the judge shall resume the proceeding and the judge shall review the lawfulness of the decision of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Court Act .

Determination that certificate is reasonable

(1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.

Determination that certificate is not reasonable

(2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.

Determination not reviewable

(3) The determination of the judge is final and may not be appealed or judicially reviewed.

Effect of determination — removal order

If a certificate is determined to be reasonable under subsection 80(1),

(

a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible;

(

b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and

(

c) the person named in it may not apply for protection under subsection 112(1).

Detention

Detention of permanent resident

(1) The Minister and the Solicitor General of Canada may issue a warrant for the arrest and detention of a permanent resident who is named in a certificate described in subsection 77(1) if they have reasonable grounds to believe that the permanent resident is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.

Mandatory detention

(2) A foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant.

Review of decision for detention

(1) Not later than 48 hours after the beginning of detention of a permanent resident under

section 82, a judge shall commence a review of the reasons for the continued detention.

Section 78 applies with respect to the review, with any modifications that the circumstances require.

Further reviews

(2) The permanent resident must, until a determination is made under subsection 80(1), be brought back before a judge at least once in the six-month period following each preceding review and at any other times that the judge may authorize.

Order for continuation

(3) A judge shall order the detention to be continued if satisfied that the permanent resident continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal.

Release

(1) The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada.

Judicial release

(2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national’s release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.

Inconsistency

In the case of an inconsistency between sections 82 to 84 and the provisions of Division 6, sections 82 to 84 prevail to the extent of the inconsistency.

Consideration During an Admissibility Hearing or an Immigration Appeal

Application for non-disclosure — Immigration Appeal Division

(1) The Minister may, during an admissibility hearing, a detention review or an appeal before the Immigration Appeal Division, make an application for non-disclosure of information.

Procedure

(2) Section 78 applies to the determination of the application, with any modifications that the circumstances require, including that a reference to “judge” be read as a reference to the applicable Division of the Board.

Consideration During Judicial Review

Application for non-disclosure — Court

(1) The Minister may, in the course of a judicial review, make an application to the judge for the non-disclosure of any information with respect to information protected under subsection 86(1) or information considered under

section 11, 112 or 115.

Procedure

(2) Section 78, except for the provisions relating to the obligation to provide a

summary and the time limit referred to in paragraph 78( d ), applies to the determination of the application, with any modifications that the circumstances require.

Division 10

General Provisions

Loans

Loans

(1) The Minister of Finance may, from time to time, advance to the Minister out of the Consolidated Revenue Fund, up to the maximum amount that is prescribed, sums that the Minister may require in order to make loans for the purposes of this Act.

Regulations

(2) The regulations may provide for any matter relating to the application of this section, and may include provisions respecting classes of persons to whom, and the purposes for which, the loans may be made.

Fees

Regulations

The regulations may govern fees for services provided in the administration of this Act, and cases in which fees may be waived by the Minister or otherwise, individually or by class.

Social Insurance Number Cards

Minister directs special cards to be issued

The Minister may direct the Canada Employment Insurance Commission to issue to persons, other than Canadian citizens or permanent residents, Social Insurance Number Cards, by which the holders of such cards are identified as persons who may be required under this Act to obtain authorization to work in Canada.

Representation

Regulations

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.

Material Incorporated in Regulations

Incorporated material

(1) A regulation may incorporate by reference the following material:

(

a) material produced by a person or body other than the Governor in Council;

(

b) material referred to in paragraph (

a) that has been subsequently adapted or edited in order to facilitate its incorporation for the purposes of the regulation;

(

c) material that has been developed jointly with another government or government agency for the purpose of harmonizing the regulation with other laws; and

(

d) material that is technical or explanatory in nature, such as specifications, classifications, illustrations or graphs, as well as examples that may assist in the application of the regulation.

Amended from time to time

(2) Material may be incorporated by reference on a specified date or as amended from time to time.

Incorporated material is not a regulation

(3) For greater certainty, material that is incorporated by reference in a regulation made under this Act is not a regulation for the purposes of the Statutory Instruments Act .

Statutory Instruments Act

Instructions given by the Minister under this Act and guidelines issued by the Chairperson under paragraph 159(1)(

h) are not statutory instruments for the purposes of the Statutory Instruments Act .

Report to Parliament

Annual report to Parliament

(1) The Minister must, on or before November 1 of each year or, if a House of Parliament is not then sitting, within the next 30 days on which that House is sitting after that date, table in each House of Parliament a report on the operation of this Act in the preceding calendar year.

Contents of report

(2) The report shall include a description of

(

a) the activities and initiatives taken concerning the selection of foreign nationals, including measures taken in cooperation with the provinces;

(

b) in respect of Canada, the number of foreign nationals who became permanent residents, and the number projected to become permanent residents in the following year;

( b.1 )

in respect of Canada, the linguistic profile of foreign nationals who became permanent residents;

(

c) in respect of each province that has entered into a federal-provincial agreement described in subsection 9(1), the number, for each class listed in the agreement, of persons that became permanent residents and that the province projects will become permanent residents there in the following year;

(

d) the number of temporary resident permits issued under

section 24, categorized according to grounds of inadmissibility, if any;

(

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

(

f) a gender-based analysis of the impact of this Act.

PART 2

REFUGEE PROTECTION

Division 1

Refugee Protection, Convention Refugees and Persons in Need of Protection

Conferral of refugee protection

(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

(

c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection.

Protected person

(2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4).

Convention refugee

A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(

a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or

(

b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.

Person in need of protection

(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, and

(iv)

the risk is not caused by the inability of that country to provide adequate health or medical care.

Person in need of protection

(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.

Exclusion — Refugee Convention

A person referred to in

section E or F of

Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.

Division 2

Convention Refugees and Persons in Need of Protection

Claim for Refugee Protection

Claim

(1) A claim for refugee protection may be made in or outside Canada.

Claim outside Canada

(2) A claim for refugee protection made by a person outside Canada must be made by making an application for a visa as a Convention refugee or a person in similar circumstances, and is governed by

Part 1.

Claim inside Canada

(3) A claim for refugee protection made by a person inside Canada must be made to an officer, may not be made by a person who is subject to a removal order, and is governed by this Part.

Permanent resident

(4) An application to become a permanent resident made by a protected person is governed by

Part 1.

Examination of Eligibility to Refer Claim

Referral to Refugee Protection Division

(1) An officer shall, within three working days after receipt of a claim referred to in subsection 99(3), determine whether the claim is eligible to be referred to the Refugee Protection Division and, if it is eligible, shall refer the claim in accordance with the rules of the Board.

Decision

(2) The officer shall suspend consideration of the eligibility of the person’s claim if

(

a) a report has been referred for a determination, at an admissibility hearing, of whether the person is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality; or

(

b) the officer considers it necessary to wait for a decision of a court with respect to a claimant who is charged with an offence under

an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years.

Consideration of claim

(3) The Refugee Protection Division may not consider a claim until it is referred by the officer. If the claim is not referred within the three-day period referred to in subsection (1), it is deemed to be referred, unless there is a suspension or it is determined to be ineligible.

Duty of claimant

(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.

Ineligibility

(1) A claim is ineligible to be referred to the Refugee Protection Division if

(

a) refugee protection has been conferred on the claimant under this Act;

(

b) a claim for refugee protection by the claimant has been rejected by the Board;

(

c) a prior claim by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned;

(

d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country;

(

e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or

(

f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)( c ).

Serious criminality

(2) A claim is not ineligible by reason of serious criminality under paragraph (1)(

f) unless

(

a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under

an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or

(

b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is 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.

Regulations

(1) The regulations may govern matters relating to the application of sections 100 and 101, may, for the purposes of this Act, define the terms used in those sections and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions

(

a) designating countries that comply with

Article 33 of the Refugee Convention and

Article 3 of the Convention Against Torture;

(

b) making a list of those countries and amending it as necessary; and

(

c) respecting the circumstances and criteria for the application of paragraph 101(1)( e ).

Factors

(2) The following factors are to be considered in designating a country under paragraph (1)( a ):

(

a) whether the country is a party to the Refugee Convention and to the Convention Against Torture;

(

b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture;

(

c) its human rights record; and

(

d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection.

Review

(3) The Governor in Council must ensure the continuing review of factors set out in subsection (2) with respect to each designated country.

Suspension or Termination of Consideration of Claim

Suspension

(1) Proceedings of the Refugee Protection Division and of the Refugee Appeal Division are suspended on notice by an officer that

(

a) the matter has been referred to the Immigration Division to determine whether the claimant is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality; or

(

b) an officer considers it necessary to wait for a decision of a court with respect to a claimant who is charged with an offence under

an Act of Parliament that may be punished by a maximum term of imprisonment of at least 10 years.

Continuation

(2) On notice by an officer that the suspended claim was determined to be eligible, proceedings of the Refugee Protection Division and of the Refugee Appeal Division shall continue.

Notice of ineligible claim

(1) An officer may, with respect to a claim that is before the Refugee Protection Division or, in the case of paragraph ( d ), that is before or has been determined by the Refugee Protection Division or the Refugee Appeal Division, give notice that an officer has determined that

(

a) the claim is ineligible under paragraphs 101(1)(

a) to ( e );

(

b) the claim is ineligible under paragraph 101(1)( f );

(

c) the claim was referred as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter and that the claim was not otherwise eligible to be referred to that Division; or

(

d) the claim is not the first claim that was received by an officer in respect of the claimant.

Termination and nullification

(2) A notice given under the following provisions has the following effects:

(

a) if given under any of paragraphs (1)(

a) to ( c ), it terminates pending proceedings in the Refugee Protection Division respecting the claim; and

(

b) if given under paragraph (1)( d ), it terminates proceedings in and nullifies any decision of the Refugee Protection Division or the Refugee Appeal Division respecting a claim other than the first claim.

Extradition Procedure

Suspension if proceeding under Extradition Act

(1) The Refugee Protection Division and Refugee Appeal Division shall not commence, or shall suspend, consideration of any matter concerning a person against whom an authority to proceed has been issued under

section 15 of the Extradition Act with respect to an offence under Canadian law that is punishable under

an Act of Parliament by a maximum term of imprisonment of at least 10 years, until a final decision under the Extradition Act with respect to the discharge or surrender of the person has been made.

Continuation if discharge under Extradition Act

(2) If the person is finally discharged under the Extradition Act , the proceedings of the applicable Division may be commenced or continued as though there had not been any proceedings under that Act.

Rejection if surrender under Extradition Act

(3) If the person is ordered surrendered by the Minister of Justice under the Extradition Act and the offence for which the person was committed by the judge under

section 29 of that Act is punishable under

an Act of Parliament by a maximum term of imprisonment of at least 10 years, the order of surrender is deemed to be a rejection of a claim for refugee protection based on paragraph (

b) of

Section F of

Article 1 of the Refugee Convention.

Final decision

(4) The deemed rejection referred to in subsection (3) may not be appealed, and is not subject to judicial review except to the extent that a judicial review of the order of surrender is provided for under the Extradition Act .

Limit if no previous claim

(5) If the person has not made a claim for refugee protection before the order of surrender referred to in subsection (3), the person may not do so before the surrender.

Claimant Without Identification

Credibility

The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.

Decision on Claim for Refugee Protection

Decision

(1) The Refugee Protection Division shall accept a claim for refugee protection if it determines that the claimant is a Convention refugee or person in need of protection, and shall otherwise reject the claim.

No credible basis

(2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.

Cessation of Refugee Protection

Rejection

(1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:

(

a) the person has voluntarily reavailed themself of the protection of their country of nationality;

(

b) the person has voluntarily reacquired their nationality;

(

c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;

(

d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or

(

e) the reasons for which the person sought refugee protection have ceased to exist.

Cessation of refugee protection

(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).

Effect of decision

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

Exception

(4) Paragraph (1)(

e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

Applications to Vacate

Vacation of refugee protection

(1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

Rejection of application

(2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.

Allowance of application

(3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.

Appeal to Refugee Appeal Division

Appeal

(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.

Restriction on appeals

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

Procedure

(3) The Refugee Appeal Division shall proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept written submissions from the Minister, the person who is the subject of the appeal, and a representative or agent of the United Nations High Commissioner for Refugees, and any other person described in the rules of the Board.

Decision

(1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions:

(

a) confirm the determination of the Refugee Protection Division;

(

b) set aside the determination and substitute a determination that, in its opinion, should have been made; or

(

c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate.

Referrals

(2) The Refugee Appeal Division shall make the referral described in paragraph (1)(

c) if it is of the opinion that a hearing is required or if it has allowed an appeal by the Minister that was based on a question of the claimant’s credibility.

Division 3

Pre-removal Risk Assessment

Protection

Application for protection

(1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).

Exception

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

(

a) they are the subject of an authority to proceed issued under

section 15 of the Extradition Act ;

(

b) they have made a claim to refugee protection that has been determined under paragraph 101(1)(

e) to be ineligible;

(

c) in the case of a person who has not left Canada since the application for protection was rejected, the prescribed period has not expired; or

(

d) in the case of a person who has left Canada since the removal order came into force, less than six months have passed since they left Canada after their claim to refugee protection was determined to be ineligible, abandoned, withdrawn or rejected, or their application for protection was rejected.

Restriction

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

(

a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality;

(

b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under

an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years;

(

c) made a claim to refugee protection that was rejected on the basis of

section F of

Article 1 of the Refugee Convention; or

(

d) is named in a certificate referred to in subsection 77(1).

Consideration of application

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;

(

b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;

(

c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;

(

d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in

section 97 and

(

i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or

(ii)

in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada.

Effect of decision

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

(

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

(

b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection.

Cancellation of stay

(2) If the Minister is of the opinion that the circumstances surrounding a stay of the enforcement of a removal order have changed, the Minister may re-examine, in accordance with paragraph 113(

d) and the regulations, the grounds on which the application was allowed and may cancel the stay.

Vacation of determination

(3) If the Minister is of the opinion that a decision to allow an application for protection was obtained as a result of directly or indirectly misrepresenting or withholding material facts on a relevant matter, the Minister may vacate the decision.

Effect of vacation

(4) If a decision is vacated under subsection (3), it is nullified and the application for protection is deemed to have been rejected.

Principle of Non-refoulement

Protection

(1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

Exceptions

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

(

a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or

(

b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.

Removal of refugee

(3) A person, after a determination under paragraph 101(1)(

e) that the person’s claim is ineligible, is to be sent to the country from which the person came to Canada, but may be sent to another country if that country is designated under subsection 102(1) or if the country from which the person came to Canada has rejected their claim for refugee protection.

Regulations

The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting procedures to be followed with respect to applications for protection and decisions made under

section 115, including the establishment of factors to determine whether a hearing is required.

PART 3

ENFORCEMENT

Human Smuggling and Trafficking

Organizing entry into Canada

(1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.

Penalties — fewer than 10 persons

(2) A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable

(

a) on conviction on indictment

(

i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or

(ii)

for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and

(

b) on

summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both.

Penalty — 10 persons or more

(3) A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.

No proceedings without consent

(4) No proceedings for an offence under this

section may be instituted except by or with the consent of the Attorney General of Canada.

Offence — trafficking in persons

(1) No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion.

Definition of “organize”

(2) For the purpose of subsection (1), organize , with respect to persons, includes their recruitment or transportation and, after their entry into Canada, the receipt or harbouring of those persons.

Disembarking persons at sea

A person shall not disembark a person or group of persons at sea for the purpose of inducing, aiding or abetting them to come into Canada in contravention of this Act.

Penalties

A person who contravenes

section 118 or 119 is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.

Aggravating factors

(1) The court, in determining the penalty to be imposed under subsection 117(2) or (3) or

section 120, shall take into account whether

(

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

(

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

(

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

(

d) a person was subjected to humiliating or degrading treatment, including with respect to work or health conditions or sexual exploitation as a result of the commission of the offence.

Definition of “criminal organization”

(2) For the purposes of paragraph (1)( b ), criminal organization means an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under

an Act of Parliament by way of indictment or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence.

Offences Related to Documents

Documents

(1) No person shall, in order to contravene this Act,

(

a) possess a passport, visa or other document, of Canadian or foreign origin, that purports to establish or that could be used to establish a person’s identity;

(

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

(

c) import, export or deal in such a document.

Proof of offence

(2) Proof of the matters referred to in subsection (1) in relation to a forged document or a document that is blank, incomplete, altered or not genuine is, in the absence of evidence to the contrary, proof that the person intends to contravene this Act.

Penalty

(1) Every person who contravenes

( a )

paragraph 122(1)(

a) is guilty of an offence and liable on conviction on indictment to a term of imprisonment of up to five years; and

( b )

paragraph 122(1)(

b) or (

c) is guilty of an offence and liable on conviction on indictment to a term of imprisonment of up to 14 years.

Aggravating factors

(2) The court, in determining the penalty to be imposed, shall take into account whether

(

a) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization as defined in subsection 121(2); and

(

b) the commission of the offence was for profit, whether or not any profit was realized.

General Offences

Contravention of Act

(1) Every person commits an offence who

(

a) contravenes a provision of this Act for which a penalty is not specifically provided or fails to comply with a condition or obligation imposed under this Act;

(

b) escapes or attempts to escape from lawful custody or detention under this Act; or

(

c) employs a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed.

Deemed knowledge

(2) For the purposes of paragraph (1)( c ), a person who fails to exercise due diligence to determine whether employment is authorized under this Act is deemed to know that it is not authorized.

Due diligence defence

(3) A person referred to in subsection 148(1) shall not be found guilty of an offence under paragraph (1)(

a) if it is established that they exercised all due diligence to prevent the commission of the offence.

Penalties

A person who commits an offence under subsection 124(1) is liable

(

a) on conviction on indictment, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both; or

(

b) on

summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.

Counselling misrepresentation

Every person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence.

Misrepresentation

No person shall knowingly

(

a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

(

b) communicate, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada; or

(

c) refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or at a proceeding held under this Act.

Penalties

A person who contravenes a provision of

section 126 or 127 is guilty of an offence and liable

(

a) on conviction on indictment, to a fine of not more than $100,000 or to imprisonment for a term of not more than five years, or to both; or

(

b) on

summary conviction, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both.

Offences relating to officers

(1) Every person is guilty of an offence who

(

a) being an officer or an employee of the Government of Canada, knowingly makes or issues any false document or statement, or accepts or agrees to accept a bribe or other benefit, in respect of any matter under this Act or knowingly fails to perform their duties under this Act;

(

b) gives or offers to give a bribe or consideration to, or makes an agreement or arrangement with, an officer to induce the officer not to perform their duties under this Act;

(

c) falsely personates an officer or by any act or omission leads any person to believe that the person is an officer; or

(

d) obstructs or impedes an officer in the performance of the officer’s duties under this Act.

Punishment

(2) Every person who is guilty of an offence under subsection (1) is liable

(

a) on conviction on indictment, to a fine of not more than $50,000 or to imprisonment for a term of not more than five years, or to both; or

(

b) on

summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.

Proceeds of Crime

Possession of property obtained by certain offences

(1) No person shall possess any property or any proceeds of any property knowing that all or any part of the property or of those proceeds was obtained or derived directly or indirectly as a result of the commission of an offence under subsection (2) or

section 117, 118, 119, 122, 124, 126, 127, 129 or 131.

Laundering proceeds of certain offences

(2) No person shall use, transfer the possession of, send or deliver to any person or place, transport, transmit, alter, dispose of or otherwise deal with, in any manner or by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing or believing that all or part of that property or those proceeds was obtained or derived directly or indirectly as a result of the commission of an offence under subsection (1) or

section 117, 118, 119, 122, 124, 126, 127, 129 or 131.

Punishment

(3) Every person who contravenes subsection (1) or (2) commits an offence and is liable

(

a) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not more than 10 years, or to both; or

(

b) on

summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than two years, or to both.

Counselling offence

Every person who knowingly induces, aids or abets or attempts to induce, aid or abet any person to contravene

section 117, 118, 119, 122, 124, 129 or 130, or who counsels a person to do so, commits an offence and is liable to the same penalty as that person.

Part XII.2 of the Criminal Code applicable

Sections 462.3 and 462.32 to 462.5 of the Criminal Code apply, with any modifications that the circumstances require, in respect of proceedings for an offence contrary to

section 117, 118, 119, 122, 124, 126, 127, 129, 130 or 131.

Prosecution of Offences

Deferral

A person who has claimed refugee protection, and who came to Canada directly or indirectly from the country in respect of which the claim is made, may not be charged with an offence under

section 122, paragraph 124(1)(

a) or

section 127 of this Act or under

section 57, paragraph 340(

c) or

section 354, 366, 368, 374 or 403 of the Criminal Code , in relation to the coming into Canada of the person, pending disposition of their claim for refugee protection or if refugee protection is conferred.

Defence — incorporation by reference

No person may be found guilty of an offence or subjected to a penalty for the contravention of a provision of a regulation that incorporates material by reference, unless it is proved that, at the time of the alleged contravention,

(

a) the material was reasonably accessible to the person;

(

b) reasonable steps had been taken to ensure that the material was accessible to persons likely to be affected by the regulation; or

(

c) the material had been published in the Canada Gazette .

Offences outside Canada

An act or omission that would by reason of this Act be punishable as an offence if committed in Canada is, if committed outside Canada, an offence under this Act and may be tried and punished in Canada.

Venue

(1) A proceeding in respect of an offence under this Act may be instituted, tried and determined at the place in Canada where the offence was committed or at the place in Canada where the person charged with the offence is or has an office or place of business at the time of the institution of those proceedings.

Where commission outside Canada

(2) A proceeding in respect of an offence under this Act that is committed outside Canada may be instituted, tried and determined at any place in Canada.

Forfeiture

Forfeiture

(1) A court that convicts a person of an offence under this Act may, in addition to any other punishment imposed, order that any offence-related property seized in relation to the offence be forfeited to Her Majesty in right of Canada.

Regulations

(2) The regulations may define the expression “offence-related property” for the purposes of this section, may provide for any matter relating to the application of this section, and may include provisions respecting the return to their lawful owner, disposition, or disposition of the proceeds of disposition, of offence-related property that has been seized.

Officers Authorized to Enforce Act

Powers of peace officer

(1) An officer, if so authorized, has the authority and powers of a peace officer — including those set out in sections 487 to 492.2 of the Criminal Code — to enforce this Act, including any of its provisions with respect to the arrest, detention or removal from Canada of any person.

Temporary assistants

(2) An officer may, in cases of emergency, employ a person to assist the officer in carrying out duties under this Act. That person has the authority and powers of the officer for a period of no more than 48 hours, unless approved by the Minister.

Search

(1) An officer may search any person seeking to come into Canada and may search their luggage and personal effects and the means of transportation that conveyed the person to Canada if the officer believes on reasonable grounds that the person

(

a) has not revealed their identity or has hidden on or about their person documents that are relevant to their admissibility; or

(

b) has committed, or possesses documents that may be used in the commission of, an offence referred to in

section 117, 118 or 122.

Search by person of same sex

(2) A search of a person under this

section must be performed by a person of the same sex as the person being searched. If an officer of the same sex is not available, any suitable person of the same sex may be authorized by an officer to perform the search.

Seizure

(1) An officer may seize and hold any means of transportation, document or other thing if the officer believes on reasonable grounds that it was fraudulently or improperly obtained or used or that the seizure is necessary to prevent its fraudulent or improper use or to carry out the purposes of this Act.

Interpretation

(2) Despite subsection 42(2) of the Canada Post Corporation Act , a thing or document that is detained under the Customs Act and seized by an officer is not in the course of post for the purposes of the Canada Post Corporation Act .

Regulations

(3) The regulations may provide for any matter relating to the application of this

section and may include provisions respecting the deposit of security as a guarantee to replace things that have been seized or that might otherwise be seized, and the return to their lawful owner, and the disposition, of things that have been seized.

Oaths and evidence

Every officer has the authority to administer oaths and to take and receive evidence under oath on any matter arising out of this Act.

Peace Officers

Duties of peace officers to execute orders

Every peace officer and every person in immediate charge or control of an immigrant station shall, when so directed by an officer, execute any warrant or written order issued under this Act for the arrest, detention or removal from Canada of any permanent resident or foreign national.

Authority to execute warrants and orders

A warrant issued or an order to detain made under this Act is, notwithstanding any other law, sufficient authority to the person to whom it is addressed or who may receive and execute it to arrest and detain the person with respect to whom the warrant or order was issued or made.

Ticketable Offences

Prosecution of designated offences

(1) In addition to other procedures set out in this Act or in the Criminal Code for commencing a proceeding, proceedings in respect of any offence that is prescribed by regulation may be commenced in accordance with this section.

Procedure

(2) An officer may commence a proceeding by

(

a) completing a ticket that consists of a summons portion and an information portion;

(

b) delivering the summons portion of the ticket to the accused or mailing it to the accused at the accused’s latest known address; and

(

c) filing the information portion of the ticket with a court of competent jurisdiction before or as soon as practicable after the summons portion has been delivered or mailed.

Content of ticket

(3) The summons and information portions of a ticket must

(

a) set out a description of the offence and the time and place of its alleged commission;

(

b) include a statement, signed by the officer, that there are reasonable grounds to believe that the accused committed the offence;

(

c) set out the amount of the prescribed fine for the offence and the manner in which and period within which it must be paid;

(

d) include a statement that, if the accused pays the fine within the period set out in the ticket, a conviction will be entered and recorded against the accused; and

(

e) include a statement that if the accused wishes to plead not guilty or for any other reason fails to pay the fine within the period set out in the ticket, the accused must appear in the court and at the time set out in the ticket.

Consequences of payment

(4) Payment of the fine by the accused within the period set out in the ticket constitutes a plea of guilty to the offence described in the ticket and, following the payment,

(

a) a conviction shall be entered against the accused and no further action shall be taken against the accused in respect of that offence; and

(

b) any thing seized from the accused under this Act relating to the offence described in the ticket, or any proceeds realized from its disposition, are forfeited t