Canadian Refugee Procedure/IRPR ss. 230-234 - Stay of Removal Orders

IRPR ss. 230-234

The text of the relevant sections of the Immigration and Refugee Protection Regulations read:

DIVISION 3
Stay of Removal Orders

Considerations
230 (1) The Minister may impose a stay on removal orders with respect to a country or a place if the circumstances in that country or place pose a generalized risk to the entire civilian population as a result of
(a) an armed conflict within the country or place;
(b) an environmental disaster resulting in a substantial temporary disruption of living conditions; or
(c) any situation that is temporary and generalized.

Cancellation
(2) The Minister may cancel the stay if the circumstances referred to in subsection (1) no longer pose a generalized risk to the entire civilian population.

Exceptions
(3) The stay does not apply to a person who
(a) is inadmissible under subsection 34(1) of the Act on security grounds;
(b) is inadmissible under subsection 35(1) of the Act on grounds of violating human or international rights;
(b.1) is inadmissible under subsection 35.1(1) of the Act on grounds of sanctions;
(c) is inadmissible under subsection 36(1) of the Act on grounds of serious criminality, under subsection 36(2) of the Act on grounds of criminality or under subsection 36(2.1) of the Act on grounds of transborder criminality;
(d) is inadmissible under subsection 37(1) of the Act on grounds of organized criminality;
(e) is a person referred to in section F of Article 1 of the Refugee Convention; or
(f) informs the Minister in writing that they consent to their removal to a country or place to which a stay of removal applies.

IRPR s. 231: Stay of removal — judicial review

Stay of removal — judicial review
231 (1) Subject to subsections (2) to (4), a removal order is stayed if the subject of the order makes an application for leave for judicial review in accordance with section 72 of the Act with respect to a decision of the Refugee Appeal Division that rejects, or confirms the rejection of, a claim for refugee protection, and the stay is effective until the earliest of the following:
(a) the application for leave is refused,
(b) the application for leave is granted, the application for judicial review is refused and no question is certified for the Federal Court of Appeal,
(c) if a question is certified by the Federal Court,
(i) the appeal is not filed within the time limit, or
(ii) the Federal Court of Appeal decides to dismiss the appeal, and the time limit in which an application to the Supreme Court of Canada for leave to appeal from that decision expires without an application being made,
(d) if an application for leave to appeal is made to the Supreme Court of Canada from a decision of the Federal Court of Appeal referred to in paragraph (c), the application is refused, and
(e) if the application referred to in paragraph (d) is granted, the appeal is not filed within the time limit or the Supreme Court of Canada dismisses the appeal.

Exception
(2) Subsection (1) does not apply if, when leave is applied for, the subject of the removal order is a designated foreign national.

Other exceptions
(3) There is no stay of removal if
(a) the person is subject to a removal order because they are inadmissible on grounds of serious criminality; or
(b) the subject of the removal order resides or sojourns in the United States or St. Pierre and Miquelon and is the subject of a report prepared under subsection 44(1) of the Act on their entry into Canada.

Non-application
(4) Subsection (1) does not apply if the person applies for an extension of time to file an application referred to in that subsection.

History of IRPR s. 231(1) and 231(2)

In 2009, prior to the amendments to the IRPA that are referred to as "refugee reform", the above provisions read as follows:

Stay of removal — judicial review
231. (1) Subject to subsections (2) to (4), a removal order is stayed if the subject of the order has filed an application for leave for judicial review in accordance with subsection 72(1) of the Act with respect to a determination of the Refugee Protection Division to reject a claim for refugee protection, and the stay is effective until the earliest of the following:
...

No credible basis exception
(2) Subsection (1) does not apply if the Refugee Protection Division states in its decision, in accordance with subsection 107(2) of the Act, that there is no credible basis for the claim.

IRPR s. 231(1): Subject to subsections (2) to (4), automatic stays are provided for judicial reviews of RAD decisions, but not RPD decisions

IRPR s. 231(1) provides that a removal order is stayed if the subject of the order makes an application for leave for judicial review with respect to a decision of the Refugee Appeal Division. Prior to the implementation of refugee reform, section 231 of the IRPR provided an automatic stay of removal when failed refugee claimants filed an application for leave and judicial review of a refugee claim rejected by the RPD, subject to certain exceptions and limitations (e.g. serious criminals and claims with no credible basis). On December 15, 2012, amendments to section 231 of the IRPR provided an automatic stay of removal to claimants with a claim rejected by the RAD, rather than by the RPD, when a refugee claimant seeks judicial review of his/her rejected claim. As a result of the amendment to section 231 of the IRPR, an automatic stay of removal is no longer available to a claimant who has applied for leave and judicial review of claims rejected by the RPD; rather, the automatic stay of removal is available to a claimant who has applied for leave and judicial review of claims rejected by the RAD, subject to certain exemptions and limitations.

IRPR s. 232: Stay of removal — pre-removal risk assessment

Stay of removal — pre-removal risk assessment
232 A removal order is stayed when a person is notified by the Department under subsection 160(3) that they may make an application under subsection 112(1) of the Act, and the stay is effective until the earliest of the following events occurs:
(a) the Department receives confirmation in writing from the person that they do not intend to make an application;
(b) the person does not make an application within the period provided under section 162;
(c) the application for protection is rejected;
(d) [Repealed, SOR/2012-154, s. 12]
(e) if a decision to allow the application for protection is made under paragraph 114(1)(a) of the Act, the decision with respect to the person’s application to remain in Canada as a permanent resident is made; and
(f) in the case of a person to whom subsection 112(3) of the Act applies, the stay is cancelled under subsection 114(2) of the Act.

IRPR s. 233: Stay of removal — humanitarian and compassionate or public policy considerations

Stay of removal — humanitarian and compassionate or public policy considerations
233 A removal order made against a foreign national, and any family member of the foreign national, is stayed if the Minister is of the opinion that the stay is justified by humanitarian and compassionate considerations, under subsection 25(1) or 25.1(1) of the Act, or by public policy considerations, under subsection 25.2(1) of the Act. The stay is effective until a decision is made to grant, or not grant, permanent resident status.

IRPR s. 234: Application of par. 50(a) of the Act

Application of par. 50(a) of the Act
234 For greater certainty and for the purposes of paragraph 50(a) of the Act, a decision made in a judicial proceeding would not be directly contravened by the enforcement of a removal order if
(a) there is an agreement between the Canada Border Services Agency and the Attorney General of Canada or the attorney general of a province that criminal charges will be withdrawn or stayed on the removal of the person from Canada; or
(b) there is an agreement between the Canada Border Services Agency and the Attorney General of Canada or the attorney general of a province to withdraw or cancel any summons or subpoena on the removal of the person from Canada.