Canadian Refugee Procedure/103-104 - Suspension or Termination of Consideration of Claim

IRPA Sections 103-104

Sections 103-104 of the Immigration and Refugee Protection Act read:

Suspension or Termination of Consideration of Claim

Suspension
103 (1) Proceedings of the Refugee Protection Division in respect of a claim for refugee protection 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 must continue.

IRPA s. 103(1): Proceedings of the RPD are suspended upon notice that evidence of potential inadmissibility has come to light

Section 103(1) provides that proceedings of the Refugee Protection Division in respect of a claim for refugee protection are suspended on notice by an officer that the conditions in ss. (a) or (b) are met. By its wording, this provision does not allow the Minister to suspend proceedings of the RAD.

IRPA Section 104: Notice of ineligible claim

Notice of ineligible claim
104 (1) An officer may, with respect to a claim that is before the Refugee Protection Division or, in the case of paragraph (a.1) or (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), other than paragraph 101(1)(c.1);
(a.1) the claim is ineligible under paragraph 101(1)(c.1);
(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 paragraph (1)(a), (b) or (c), it terminates pending proceedings in the Refugee Protection Division respecting the claim;
(a.1) if given under paragraph (1)(a.1), it terminates pending proceedings in the Refugee Protection Division or, in the case of an appeal made by the claimant, the Refugee Appeal 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.

IRPA s. 104(1): An officer may give notice that an officer has determined that the claim is ineligible or of other specified conditions, but this is not a discretion-conferring provision

IRPA s. 104(1) provides that an officer may, with respect to a claim that is before the Refugee Protection Division or, in the case of paragraph (a.1) or (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 specified conditions have been met, including that the claim is ineligible. A CBSA officer does not exercise any discretion under subsection IRPA s. 104(1) when issuing a Notification of Ineligible Refugee Claim. The use of the word “may” in the English version of s. 104 does not find its equivalent in the French version of the section. As the Interpretation Act (R.S.C., 1985, c. I-21) states at the French version of section 11, the use of the present tense (“indicatif présent”) expresses an imperative (“une obligation”). That corresponds to the language used in the French version of s. 104 of the IRPA, which is consistent with the scheme of the Act that calls for notices to the RPD for suspending its proceedings or for lifting the suspension. Merely relying on the word “may” will fall short. Instead, the construction of the scheme as performed in the two cases leads to only one conclusion. The fact that it is a human actor, the officer, who takes notice of facts and communicates the legal consequence imposed by the Act to the affected party and to the Refugee Protection Division does not make that person a decision-maker with discretion.