2012 IRPA Amendments Summary (C-31/BRRA)

2012 IRPA Amendments Summary (C-31/BRRA)

Compilation of changes in Bill C-31 as amended by committee[1]

The following sections set out changes to the Immigration and Refugee Protection Act (“IRPA”) and the Balanced Refugee Reform Act (“BRRA”) proposed in Bill C-31. Note that amendments to the Marine Transportation Security Act and to the offence provisions in IRPA have not been included. The amendments are divided into three sections, based on whether the amendments relate to:

1.  Foreign Nationals and Permanent Residents

2.  Refugee Claimants and Protected Persons

3.  Designated Foreign Nationals

Marking up is as follows:

·  Immigration and Refugee Protection Act – as of February 21, 2012 [provisions to be enacted by order of GIC in italics]

·  Balanced Refugee Reform Act - provisions not yet enacted

·  Bill C-31 – as presented at first reading [provisions to be enacted by order of GIC in italics]

·  Amendments by Standing Committee

1.  Amendments relating to Foreign Nationals and Permanent Residents

6. The Act is amended by adding the following after section 11 [s.85: CIF by order of GIC]:

11.1 A prescribed foreign national who makes an application for a temporary resident visa, study permit or work permit must follow the prescribed procedures for the collection of prescribed biometric information.

7. Subsections 13(1) to (3) of the Act are replaced by the following [s.85: CIF by order of GIC]:

13. (1) A Canadian citizen or permanent resident, or a group of Canadian citizens or permanent residents, a corporation incorporated under a law of Canada or of a province or an unincorporated organization or association under federal or provincial law — or any combination of them — may sponsor a foreign national, subject to the regulations.

8. The Act is amended by adding the following after section 13 [s.85: CIF by order of GIC]:

13.1 An undertaking given under this Act in respect of a foreign national — including a sponsorship undertaking — is binding on the person who gives it.

13.2 (1) If required to do so by the regulations, a foreign national who makes an application for a visa or for permanent or temporary resident status must obtain the undertaking specified in the regulations.

(2) An officer must apply the regulations made under paragraph 14(2)(e.1) in accordance with any instructions that the Minister may give.

9. (1) Paragraph 14(2)(e) of the Act is replaced by the following [s.85: CIF by order of GIC]:

(e) sponsorships;

(e.1) undertakings, and penalties for failure to comply with undertakings;

(2) Section 14 of the Act is amended by adding the following after subsection (2) [s.85: CIF by order of GIC]:

(3) The regulations may provide for any matter relating to the application of section 11.1, including

(a) the circumstances in which a foreign national is exempt from the requirement to follow the procedures prescribed under that section;

(b) the circumstances in which a foreign national is not required to provide certain biometric information; and

(c) the processing of the collected biometric information, including creating biometric templates or converting the information into digital biometric formats.

2. Paragraph 16(2)(b) of the Immigration and Refugee Protection Act is replaced by the following:

(b) subject to the regulations, the foreign national must submit to a medical examination.

13. (1) Subsection 25(1) of the Act is replaced by the following:

25. (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

14. (1) Subsection 25.2(1) of the Act is replaced by the following:

25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the foreign national complies with any conditions imposed by the Minister and the Minister is of the opinion that it is justified by public policy considerations.

(2) Section 25.2 of the Act is amended by adding the following after subsection (3):

(4) The conditions referred to in subsection (1) may include a requirement for the foreign national to obtain an undertaking or to obtain a determination of their eligibility from a third party that meets any criteria specified by the Minister.

15. Section 26 of the Act is amended by striking out “and” at the end of paragraph (d) and by adding the following after paragraph (d):

(d.1) undertakings that may or must be given in respect of requests made under subsection 25(1) or undertakings referred to in subsection 25.2(4), and penalties for failure to comply with undertakings;

(d.2) the determination of eligibility referred to in subsection 25.2(4); and

7. Paragraph 36(3)(e) of the Act is replaced by the following:

(e) inadmissibility under subsections (1) and (2) may not be based on an offence

(i)  designated as a contravention under the

Contraventions Act,

(ii)  for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or

(iii)  for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.

20. Subsection 48(2) of the Act is replaced by the following [s.85: CIF by order of GIC]:

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

22. Paragraph 53(e) of the Act is replaced by the following [s.85: CIF by order of GIC]:

(e) the effect and enforcement of removal orders, including the consideration of factors in the determination of when enforcement is possible;

23. (1) Subsection 55(1) of the Act is replaced by the following [s.85: CIF by order of GIC]:

55. (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, for an admissibility hearing, for removal from Canada or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2).

(2) Paragraph 55(3)(b) of the Act is replaced by the following:

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

26. (1) Paragraphs 58(1)(c) and (d) of the Act are replaced by the following:

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

28. Paragraph 61(a) of the Act is replaced by the following:

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

(a.1) the type of conditions that an officer, the Immigration Division or the Minister may impose with respect to the release of a person from detention;

29. Subsection 87.3(1) of the Act is replaced by the following [s.85: CIF by order of GIC]:

87.3 (1) This section applies to applications for visas or other documents made under subsection 11(1), other than those made by persons referred to in subsection 99(2), to sponsorship applications made under subsection 13(1), to applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada and to requests under subsection 25(1) made by foreign nationals outside Canada.

30. Section 89 of the Act is renumbered as subsection 89(1) and is amended by adding the following [s.85: CIF by order of GIC]:

(2) The User Fees Act does not apply to a fee for the provision of services in relation to the collection, use and disclosure of biometric information and for the provision of related services.

8.  Section 91 of the Act is replaced by the following:

91. 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 any Division of the Board, including an interview before an official referred to in subsection 100(4.1).

47. (1) Paragraph 150.1(1)(b) of the Act is replaced by the following [s.85: CIF by order of GIC]:

(b) the disclosure of information for the purposes of national security, the defence of Canada or the conduct of international affairs, including the implementation of an agreement or arrangement entered into under section 5 or 5.1 of the Department of Citizenship and Immigration Act or section 13 of the Canada Border Services Agency Act;

(2) Subsection 150.1(1) of the Act is amended by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):

(d) the retention, use, disclosure and disposal by the Royal Canadian Mounted Police of biometric information and any related person-al information that is provided to it under this Act for the enforcement of any law of Canada or a province.

85. (1) Sections 4 and 6, subsection 9(2) and sections 30, 47 and 78 come into force on a day to be fixed by order of the Governor in Council.

DEPARTMENT OF CITIZENSHIP AND IMMIGRATION ACT

78. The Department of Citizenship and Immigration Act is amended by adding the following after section 5 [s.85: CIF by order of GIC]:

5.1 (1) The Minister, with the approval of the Governor in Council, may enter into an agreement with any foreign government for the provision of services in relation to the collection, use and disclosure of biometric information and for the provision of immigration application services and other related services on that government’s behalf for purposes related to the administration and enforcement of their immigration laws.

(2) The Minister may enter into an arrangement with any foreign government for the provision of services in relation to the collection, use and disclosure of biometric information and for the provision of immigration application services and other related services on that government’s behalf for purposes related to the administration and enforcement of their immigration laws.

(3) The Minister may use the amounts received for the provision of services under an agreement or arrangement — in the fiscal year in which they are received or in the following fiscal year — to offset the expenditures that the Minister incurs for the provision of such services.

5.2 The Minister may provide services to the Canada Border Services Agency.

2.  Amendments relating to Refugees and Protected Persons

21. (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.

(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.

11. (1) Subsection 21(2) of the Act is replaced by the following [s.85: CIF by order of GIC]:

(2) Except in the case of a person who is a member of a prescribed class of persons, a person who has made a claim for refugee protection or an application for protection and who has been finally determined by the Board to be a Convention refugee or to be a person in need of protection, 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.

11. (2) Section 21 of the Act is amended by adding the following after subsection (2):

(3) A person in respect of whom the Minister has made an application under subsection 108(2) may not become a permanent resident under subsection (2) while the application is pending.

25.(1)The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

(1.1)The Minister is seized of a request referred to in subsection (1) only if the applicable fees in respect of that request have been paid.

(1.2)The Minister may not examine the request if the foreign national has already made such a request and the request is pending.

(1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national.