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Canadian Refugee Procedure/100-102 - Examination of Eligibility to Refer Claim

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IRPA Sections 100-101: Examination of Eligibility to Refer Claim

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Sections 100-102 of the Immigration and Refugee Protection Act read: 

100 (1) An officer shall, 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.

Burden of proof
(1.1) The burden of proving that a claim is eligible to be referred to the Refugee Protection Division rests on the claimant, who must answer truthfully all questions put to them.

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.

Documents and information to be provided
(4) A person who makes a claim for refugee protection inside Canada at a port of entry and whose claim is referred to the Refugee Protection Division must provide the Division, within the time limits provided for in the regulations, with the documents and information — including in respect of the basis for the claim — required by the rules of the Board, in accordance with those rules.

Date of hearing
(4.1) The referring officer must, in accordance with the regulations, the rules of the Board and any directions of the Chairperson of the Board, fix the date on which the claimant is to attend a hearing before the Refugee Protection Division.

Quarantine Act
(5) If a traveller is detained or isolated under the Quarantine Act, the period referred to in subsections (1) and (3) does not begin to run until the day on which the detention or isolation ends.

Ineligibility
101 (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;
(c.1) the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws;
(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; or
(b) in the case of inadmissibility by reason of a conviction outside Canada, the conviction is 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.

The process set out in ss. 100-102 of the Act is designed to be an expeditious summary review

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Section 101 enumerates the situations where an applicant is ineligible to claim refugee status. The Federal Court has held that the expeditious and relatively straightforward process set out in sections 100 to 102 of the IRPA is intended to screen certain claims out of the Refugee Protection Division's jurisdiction on the basis of a summary review by an immigration officer.[1] This was so as Bill C-84, which created the predecessor to this regime in the 1980s, aimed to preclude individuals who had been certified to be a danger to the public from making a refugee claim. The previous legislation had allowed such individuals to make a claim; only if such a claim was successful would a decision be made concerning deportation.[2] In the words of the Minister of the time, the intent of this legislation was to "close a loophole by which people who are criminals or terrorists can use the refugee claims system to defer their removal from Canada for many years".[3]

In the vast majority of cases, the facts triggering these provisions are easily ascertainable and their application does not give rise to any controversy. For example, whether an applicant’s claim was previously rejected (paragraph 101(1)(b)) or withdrawn (paragraph 101(1)(c)) can be proved by official records. However, certain ineligibility provisions may require a more elaborate factual inquiry, for example whether an applicant can be returned to a country where they have been granted refugee status (paragraph 101(1)(d)).[4]

Idil Atak, et. al., argue that where the CBSA delves into the merits of a claim or challenges the credibility of the claimant during their initial examination, it exceeds its authority.[5]

Section 101(1.1): The burden of proving that a claim is eligible to be referred to the Refugee Protection Division rests on the claimant, who must answer truthfully all questions put to them

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Section 110(1.1) of the IRPA specifies that 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. From 2004 to 2021, 16,428 persons were deemed ineligible for refugee determination at the IRB. The majority of these determinations (10,910) were made based on the STCA grounds.[6]

There is much jurisprudence about how the IRB may treat statements that are made in this process. For example, the court held in an oft-cited passage in Cetinkaya v Canada:

It is an error of the RPD to impugn the credibility of the Applicant on the sole ground that the information provided by the Applicant at the POE interview lacks details. The purpose of the POE interview is to assess whether an individual is eligible and/or admissible to initiate a refugee claim. It is not a part of the claim itself and, consequently, it should not be expected to contain all of the details of the claim.[7]

That said, it is beyond the scope of this text to review all of the relevant rules about credibility findings and port of entry statements.

RPD Rules 26-28 create a regime requiring notice to the Minister where select issues emerge in a claim

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For a discussion of the interpretation of the RPD notice requirements which refer to these provisions of the Act, see the commentary to RPD Rules 26–28: Canadian Refugee Procedure/RPD Rules 26-28 - Exclusion, Integrity Issues, Inadmissibility and Ineligibility#RPD Rule 28 - Possible Inadmissibility or Ineligibility.

Sections 101(1)-(3): History of the "deemed referral" provisions in these sections of the Act

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The Budget Implementation Act, 2019 amended the IRPA to remove the three-day time limit for making a decision on the eligibility of a claim to be referred to the RPD and removed the “deemed referral” to the RPD if an eligibility decision was not made in that time period.[8] See context: Canadian Refugee Procedure/History of refugee procedure in Canada#Irregular border crossing controversy.

Section 101(1)(a): Refugee protection has been conferred on the claimant under this Act

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IRPA section 101(1)(a) provides that a claim is ineligible to be referred to the Refugee Protection Division if refugee protection has been conferred on the claimant under this Act. A person who has already become a protected person in Canada is not eligible to make a refugee claim, as they already enjoy refugee protection in Canada. This includes a person who: (i) became a protected person through resettlement (section 95(1)(a) of the IRPA: Canadian Refugee Procedure/95-97 - Refugee Protection, Convention Refugees and Persons in Need of Protection), (ii) has been found to be a refugee by the Immigration and Refugee Board (IRB) (section 95(1)(b) of the IRPA: Canadian Refugee Procedure/95-97 - Refugee Protection, Convention Refugees and Persons in Need of Protection), and (iii) has had a positive pre-removal risk assessment (PRRA) (section 95(1)(c) of the IRPA: Canadian Refugee Procedure/95-97 - Refugee Protection, Convention Refugees and Persons in Need of Protection).[9]

Section 101(1)(b): A claim for refugee protection by the claimant has been rejected by the Board

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IRPA section 101(1)(b) provides that a claim is ineligible to be referred to the Refugee Protection Division if a claim for refugee protection by the claimant has been rejected by the Board. Before the IRPA came into force, a refugee claimant was eligible to have another claim referred to the CRDD if the claimant left Canada for at least 90 days before making a repeat claim. Under the IRPA, a claimant can have only one claim referred to the RPD, i.e., repeat claims became ineligible to be referred to the RPD. This provision prevents a person from making multiple refugee claims, whether their previous claim was made under the Immigration and Refugee Protection Act (IRPA) or previous immigration legislation (see: section 339 of the Regulations: Canadian Refugee Procedure/IRPR ss. 338-347 - Division 5 - Refugee Protection). This includes claims that have been vacated or ceased by the RPD (or the Convention Refugee Determination Division, under the former act) and claims that have been rejected by the Minister under the former act. A claimant who has been refused resettlement at a Canadian visa office is not ineligible under paragraph 101(1)(b), as their refugee protection concerns have not been heard by the IRB.[10]

Section 101(1)(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

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IRPA section 101(1)(c) provides that a claim is ineligible to be referred to the Refugee Protection Division if 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. This provision applies even if the circumstances with respect to their ineligibility have changed.[11] Such persons may be entitled to apply for a pre-removal risk assessment (PRRA): Canadian Refugee Procedure/112-114 - Pre-Removal Risk Assessment.

Section 101(1)(c.1): What evidence the Minister considers regarding refugee claims made to another country

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Section 101(1)(c.1) of the Act provides that "A claim is ineligible to be referred to the Refugee Protection Division if the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws." There are several components to this provision:

  • the claimant must have made the prior claim: In the vast majority of cases, whether an applicant made a claim in another country will be proved by a confirmation issued by that country’s authorities. Nevertheless, deciding whether “the claimant . . . made a claim for refugee protection” (or, in French, whether there was a “demande d’asile antérieure faite par la personne”) may sometimes require a look beyond the foreign authorities’ confirmation.[12] In Garces v. Canada, the court noted that children presumptively lack legal capacity,[13] and so in the case of an unaccompanied minor who lacks legal capacity in a foreign state, it is incumbent upon the Minister to explain how they can be considered to have "made a claim" within the meaning of this provision.[14]
  • the claim must have been made before the claim for refugee protection was made in Canada: Importantly, the ineligibility ground applies regardless of whether a decision was ever made on a previous claim.[15] The Minister will often cite in its procedural fairness letters that the claimant was in possession of paperwork pertaining to the claim when the claimant entered Canada.
  • the claim must have been made after this provision came into force: This provision applies to all claims made after June 21, 2019. For claims made between April 8, 2019 and June 21, 2019, the provision does not apply if substantive evidence was heard by the RPD or the RPD allowed the claim without a hearing prior to June 21, 2019. This transitional provision arises from s. 309(b) of the Budget Implementation Act, 2019 (Bill C-97) which provides that paragraph 101(1)(c.1) of the IRPA applies to claims for refugee protection made during the period beginning on the day on which the Bill is introduced [April 8, 2019] and ending on the day on which it receives royal assent [June 21, 2019], unless, as of the day on which it receives royal assent [June 21, 2019] substantive evidence has been heard by the Refugee Protection Division in respect of the claim or that Division has allowed the claim without a hearing.
  • the claim must have been made to a country (not, say, UNHCR itself);
  • the claim must have been an in-country asylum claim: a refugee claim in this instance means an in-country asylum claim, not an overseas refugee selection application, such as for a government-assisted refugee.[16] However, such people could be ineligible under paragraph s. 101(1)(d); and
  • the fact of its having been made must be confirmed through the type of information-sharing arrangement specified: Canada has information-sharing agreements or arrangements with the US, Australia, New Zealand, and the UK. A 2009 Data-Sharing Protocol allows these countries to conduct ‘immigration checks’ through biometric data exchanges.[15] In July 2024, Canada also reached an Agreement to Amend the Agreement Between the Government of Canada and the Government of the United States of America for the Sharing of Visa and Immigration Information.[17] The Minister will often cite in its procedural fairness letters that the claimant's biometrics were matched to their immigration record in the other country. See also: Canadian Refugee Procedure/IRPR part 19.1 - Information Sharing. Biographic information-sharing results generally do not reveal asylum-related information. In addition, they are not considered sufficiently reliable on their own.[16]

Section 101(1)(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

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A person who has been recognized as a Convention refugee by a country other than Canada, and who can return to that country, is not eligible for determination by the RPD.

When considering whether a claimant "can be sent or returned to that country", the question is whether they can "physically and legally be re-admitted" to the country in question.[18] In Jekula v. Canada (a decision affirmed by the Federal Court of Appeal, without reasons) the court held that the words can be returned did not require an immigration officer to determine whether the claimant had a well-founded fear of persecution in the country that has already granted asylum.[19] A key reason for this is the history of the statutory provision in question. In Kaberuka v. Canada, the Federal Court noted that An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49, s. 36(1) repealed the previous version of s. 46.01(2) of the Immigration Act, which had permitted those with Convention refugee status elsewhere to make Convention refugee claims against their countries of asylum. The Court concluded that this indicated Parliament had chosen to exclude persons recognized as Convention refugees by another country from claiming to have a well-founded fear of persecution in their country of asylum.[20] One of the rationales for this, as noted by the court in Farah v. Canada is the presence of other provisions in the IRPA designed to address such circumstances, including s. 115 of the Act (quoted below), and the availability of relief through processes including a stay of removal and a Pre-Removal Risk Assessment:[21]

115(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.

As such, the Federal Court holds that it is sufficient for an immigration officer determining the eligibility of a claim for refugee protection in Canada to ensure that a person already recognized as a Convention refugee by another country will, if required, be able to obtain the necessary travel documents in order to be returned to the country of asylum (unless the person, when ready to be returned, tells the CBSA enforcement officer that they prefer to be returned to their country of nationality rather than the country of asylum).[22] This said, paragraph 101(1)(d) does not apply to people who have become citizens of the country that recognized them as Convention refugees.[23]

IRPA Section 102: Regulations and Safe Third Country Agreement

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Regulations
102 (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.

The Safe Third Country Agreement provisions are at s. 159 of the Regulations

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See the commentary to s. 159 of the Regulation: Canadian Refugee Procedure/IRPR s. 159 - Safe Third Countries.

References

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  1. ↑ Wangden v Canada (Citizenship and Immigration), 2008 FC 1230 at para 76.
  2. ↑ Alan Nash, International Refugee Pressures and the Canadian Public Policy Response, Discussion Paper, January 1989, Studies in Social Policy, page 58.
  3. ↑ Alan Nash, International Refugee Pressures and the Canadian Public Policy Response, Discussion Paper, January 1989, Studies in Social Policy, page 61-62.
  4. ↑ Garces v. Canada (Public Safety and Emergency Preparedness), 2023 FC 798 (CanLII), at para 14, <https://canlii.ca/t/jxp1n#par14>, retrieved on 2023-07-06.
  5. ↑ Atak, Idil, Sara Asalya, and Jona Zyfi. 2024. Vulnerability of Asylum Seekers and Undocumented Migrants in Toronto. Canadian Journal of Law and Society / Revue Canadienne Droit et Société 1–22. https://doi.org/10.1017/cls.2024.5, page 10.
  6. ↑ Atak, Idil, Sara Asalya, and Jona Zyfi. 2024. Vulnerability of Asylum Seekers and Undocumented Migrants in Toronto. Canadian Journal of Law and Society / Revue Canadienne Droit et Société 1–22. https://doi.org/10.1017/cls.2024.5, page 7.
  7. ↑ Cetinkaya v Canada (Minister of Citizenship and Immigration), 2012 FC 8, 403 FTR 46, para. 51.
  8. ↑ Budget Implementation Act, 2019, No. 1, S.C. 2019, c. 29 (Bill C-97), Parliament of Canada, <https://www.parl.ca/DocumentViewer/en/42-1/bill/C-97/royal-assent> (accessed April 28, 2022). See amendments to subsections 100(1) and (3) of the IRPA.
  9. ↑ Immigration, Refugees and Citizenship Canada, Eligibility for referral to the IRB, Date modified: 2023-06-02, <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/refugee-protection/canada/processing-eligibility-referral-claims.html#toc1>, at heading "Paragraph A101(1)(a)".
  10. ↑ Immigration, Refugees and Citizenship Canada, Eligibility for referral to the IRB, Date modified: 2023-06-02, <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/refugee-protection/canada/processing-eligibility-referral-claims.html#toc2>, at heading "Paragraph A101(1)(b)".
  11. ↑ Immigration, Refugees and Citizenship Canada, Eligibility for referral to the IRB, Date modified: 2023-06-02, <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/refugee-protection/canada/processing-eligibility-referral-claims.html#toc3>, at heading "Paragraph A101(1)(c)".
  12. ↑ Garces v. Canada (Public Safety and Emergency Preparedness), 2023 FC 798 (CanLII), at para 15, <https://canlii.ca/t/jxp1n#par15>, retrieved on 2023-07-06.
  13. ↑ Garces v. Canada (Public Safety and Emergency Preparedness), 2023 FC 798 (CanLII), at para 16, <https://canlii.ca/t/jxp1n#par16>, retrieved on 2023-07-06.
  14. ↑ Garces v. Canada (Public Safety and Emergency Preparedness), 2023 FC 798 (CanLII), at para 17, <https://canlii.ca/t/jxp1n#par17>, retrieved on 2023-07-06.
  15. ↑ a b Idil Atak, Zainab Abu Alrob, Claire Ellis, Expanding refugee ineligibility: Canada’s response to secondary refugee movements, Journal of Refugee Studies, December 14, 2020, https://academic.oup.com/jrs/article/34/3/2593/6033099?login=true at page 2.
  16. ↑ a b Immigration, Refugees and Citizenship Canada, Eligibility for referral to the IRB, Date modified: 2023-06-02, <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/refugee-protection/canada/processing-eligibility-referral-claims.html#toc4>, at heading "Paragraph A101(1)(c.1)".
  17. ↑ See statement in Parliament: "Pursuant to Standing Order 32(2), Mr. Chiang (Parliamentary Secretary to the Minister of Immigration, Refugees and Citizenship) laid before the House, — Copy of the Agreement to Amend the Agreement Between the Government of Canada and the Government of the United States of America for the Sharing of Visa and Immigration Information, done at Ottawa on July 19, 2024. — Sessional Paper No.  8532-441-56.", Journals No.348 - Thursday, October 3, 2024 - 44th PARLIAMENT, 1st SESSION - House of commons Canada, House Publications, Tabling of Documents, <https://www.ourcommons.ca/Content/House/441/Journals/348/Journal348.PDF>.
  18. ↑ Farah v. Canada (Citizenship and Immigration), 2017 FC 292 (CanLII), [2018] 1 FCR 473, para. 14, <http://canlii.ca/t/h2svb#14>, retrieved on 2020-01-25.
  19. ↑ Jekula v Canada (Minister of Citizenship and Immigration), 1998 CanLII 9099 (FC), [1999] 1 FC 266 (affirmed by the Federal Court of Appeal, without reasons, at [2000] FCJ No. 1956).
  20. ↑ Kaberuka v Canada (Minister of Employment and Immigration), 1995 CanLII 3519 (FCA), [1995] 3 FC 252, at pages 269-270.
  21. ↑ Farah v. Canada (Citizenship and Immigration), 2017 FC 292 (CanLII), [2018] 1 FCR 473, para. 27, <http://canlii.ca/t/h2svb#27>, retrieved on 2020-01-25.
  22. ↑ Paulos Teddla v. Canada (Public Safety and Emergency Preparedness), 2020 FC 1109 (CanLII), par. 22, <http://canlii.ca/t/jc709#par22>, retrieved on 2020-12-21.
  23. ↑ Immigration, Refugees and Citizenship Canada, Eligibility for referral to the IRB, Date modified: 2023-06-02, <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/refugee-protection/canada/processing-eligibility-referral-claims.html#toc5>, at heading "Paragraph A101(1)(d)".
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