Bill C-31: The Immigration and Refugee Protection Act (LS-364E)

This document was prepared by the staff of the Parliamentary Research Branch to provide Canadian Parliamentarians with plain language background and analysis of proposed government legislation. Legislative summaries are not government documents. They have no official legal status and do not constitute legal advice or opinion. Please note, the Legislative Summary describes the bill as of the date shown at the beginning of the document. For the latest published version of the bill, please consult the parliamentary internet site at www.parl.gc.ca.

Bill C-31, An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger (the Immigration and Refugee Protection Act), received first reading in the House of Commons on 6 April 2000. The bill would repeal and replace the current Immigration Act. The bill thus covers all the non-administrative aspects of immigration: the selection of immigrants; who is admissible and inadmissible to Canada; enforcement of the law; detention and release; appeals; refugee protection; the Immigration and Refugee Board; immigration offences, and numerous other technical matters.

The recent process of immigration reform began late in 1996 with the appointment of a three-person panel charged with reviewing all aspects of immigration law, policies and practices. Its members consulted widely and their report was publicly released in January 1998.(1) The Minister of the time continued to consult the public and in January 1999 released a discussion document that further contributed to the reform process.(2) In the summer of 1999, the arrival of the four boatloads of Chinese migrants placed pressure and additional public attention on Canada’s immigration and refugee systems, and intensified the process of review and reform. In March 2000, the Standing Committee on Citizenship and Immigration contributed to the debate with a report entitled Refugee Protection And Border Security: Striking a Balance.

A good deal of the structure of the current Immigration Act dates from the mid-1970s. The refugee determination system and the Immigration and Refugee Board were introduced in 1989 and significantly modified in early 1993. Major amendments to the rest of the Act also came into force in early 1993, and again in 1995. Thus, while it is true to say that the current Act dates from the mid-1970s, it is also true that it has been continually modified since that time. In the process, there is no doubt that its complexity increased considerably.

For the most part, Bill C-31 is written in simpler language than the current Act, and the style avoids the numerous cross references, identified only by section number, that plague the current Act. Provisions that cover similar areas have been consolidated. Thus, the bill should be more readily accessible and understandable. The terminology has also been simplified, some new terms introduced, and many old ones dropped. For example, the term "foreign national" is used to refer to all but Canadian citizens. Interestingly, the word "immigrant" does not appear, nor does the word "visitor." For the first time, there would be a reference to "instructions" that would be given by the Minister, although these would not be regulations.

The bill would produce an Act that would be considerably shorter than the current legislation. There are a number of reasons for this, including the consolidation mentioned above, but a major one is the fact that the regulation-making powers are very extensive.(3) Thus, a bare reading of the Act does not provide a complete picture of the immigration and refugee program.

The fact that so much will be left to be covered by the regulations has led to confusing reports about the contents of the bill. A significant number of the press reports have highlighted matters that are not, in fact, in the bill itself, but in the announced intentions of the Department of Citizenship and Immigration with regard to the regulations, or to administrative changes. Care should thus be taken in assessing public comments about the bill.(4)

In many respects, the bill mirrors the current Act, although the extensive restructuring may obscure this fact.

The difference in style between the current Act and the bill is apparent immediately. The interpretation section in the current Act defines 47 terms; in the bill, five terms are defined in the English version and only three in the French. While the simplification is welcome, it leads to some problems. There is no definition of "permanent resident," for example. There is no definition of "removal order" that would suggest that there might be different kinds of orders, as is the case in the current law (although it could be done by regulation). As noted, the term "immigrant" would be a relic of the past. A number of key definitions are found elsewhere in the bill, but many would be left to the regulations. This may make the law less accessible.

Two of the definitions would be new. As mentioned above, the term "foreign national" (in the English only) would be used to refer to any person who is not a Canadian citizen. This could indirectly have the effect of emphasizing that permanent resident status is, in fact, contingent, and can be removed under specified circumstances. A reference to the Convention Against Torture would also be new, and would have significance in relation to refugee protection. The Schedule to the bill would set out the definition of torture found in section 1 of that Convention.

Clause 3 would divide the objectives of the Act into those relating to immigration and those to refugees. All of the objectives in the existing Act, with one exception, would be retained, with some minor wording changes. The exception is a reference currently to the "attainment of demographic goals … in respect of the size, rate of growth, structure and geographic distribution of the Canadian population," which has been removed. There would thus be no general link between demographics and immigration in the new Act.(5) A new immigration objective would be to support the attainment of immigration goals established by the Government of Canada and the provinces by means of consistent standards and prompt processing.

The objectives relating to refugees would be considerably expanded. Clause 3 would introduce references to the general purposes of refugee protection, resettlement, the establishment of fair and efficient procedures to maintain the integrity of the refugee protection system, the importance of refugee integration, and the promotion of "international justice and security by denying access to foreign nationals, including refugee claimants, who are serious criminals or security risks."

The Act would have to be interpreted and applied so as to further Canada’s interests; promote accountability and transparency; facilitate cooperation among Canadian governments and with foreign governments and bodies; and ensure that people seeking admission are treated in a manner consistent with the Canadian Charter of Rights and Freedoms.(6)

These clauses would establish the Governor in Council as the maker of all regulations under the Act (except where provided otherwise), including those not specifically mentioned but considered necessary to carry out the Act. The Minister could appoint designated officers to administer the Act, although a limited number of specified powers could not be delegated. As is now the case, these would concern decisions relating to such serious matters as whether the admission of a person would be in the national interest, the signing of a security certificate, and whether a recognized refugee could be removed from the country.

As in the current Act, the bill would authorize the Minister, with the approval of the Governor in Council, to enter into agreements with foreign governments respecting the administration of the Act. As an example, this would permit the signing of agreements governing the return of refugee claimants. New would be the power to also enter into agreements with international organizations. The power to enter into agreements with the provinces would be continued, with a new requirement for the Minister to publish an annual list of the federal-provincial agreements in force.

Clause 9 specifies the rules that would govern the admission of permanent residents to a province with such an agreement. Sponsors refused for financial reasons would be required to use the provincial appeal mechanism (unless the agreement specified otherwise) and could not use the mechanism under the Act. They could, however, apply for humanitarian and compassionate consideration.

As in the current Act, clause 10 would require the Minister to consult with the provinces regarding future immigration levels, the distribution of immigrants in Canada (including considerations of regional economic and demographic requirements), and integration measures. Under a new provision, the Minister might consult with the provinces regarding policies and programs in order to facilitate cooperation and enable the federal government to take into consideration how the provinces would be affected by the Act.

Clause 11 restates the fundamental principle of the current Act that, before entering Canada, a foreign national must apply to a designated officer for whatever documents are required by the regulations. Section 8 of the current Act provides that people applying to come to Canada are presumed to be immigrants unless they establish otherwise; this presumption would be dropped in view of the dual intent provision in clause 20(4). This would be a significant change, which would facilitate temporary but legitimate residence by those who might wish to consider applying for permanent resident status, or who had already done so.

Clause 12, in effect, sets out the three broad classes of immigrants and their essential characteristics. Thus, foreign nationals would be selected in the economic class on the basis of their ability to become economically established in Canada.

Family class members would be required to have one of the following specified relationships to a Canadian citizen or permanent resident: spouse, common-law partner, child or other prescribed family member. The definitions of "common-law partner" and "child" are not in the bill, but would be left to the regulations.(7)

The third general class, consisting of Convention refugees and protected persons, would be divided into four sub-classes: the Convention refugees overseas class; the humanitarian class; the Convention refugees in Canada class; and the persons in need of protection class. "Convention refugee" and "person in need of protection" are each defined in Part 2 of the bill dealing with refugee protection.

Clause 13 merely states that Canadian citizens or permanent residents would be able to sponsor family class members to enter and remain in Canada, and groups would be able to sponsor Convention refugees overseas and members of the humanitarian class. New would be the express statement that sponsorship undertakings would be binding, and that officers would be designated to enforce them.

Regulations in this Division could define any term (thus, "child" and "common-law partner"), and prescribe all of the details relating to the general and sub-classes of foreign nationals described above. As is done currently, the selection criteria for the economic class (the "points system") would be set by regulation, including the weighting of the criteria and the procedures to be followed in applying them. Interestingly, circumstances would be established in which officers could substitute for the criteria their own assessment of whether or not a candidate would be likely to become economically established.(8)

Regulations would also establish the number of applications that could be accepted, processed or approved in a year, the number of visas that could be issued, and what measures could be taken if the number were exceeded. The conditions that could be applied to visas would be specified, as would details relating to sponsors’ undertakings and the consequences of any breach of these.

Regulations would also allow for the designation of classes of people, such as spouses, foreign workers or foreign students, who could be eligible for landing from within Canada.

Since it is envisaged that outside institutions or organizations would provide recommendations to the Minister, or even make decisions, regulations could be made to govern that process.

These clauses would give officers powers to examine applicants, whether Canadian citizens, permanent residents, or visitors ("a foreign national other than a permanent resident") to determine their admissibility to Canada. The fact that inadmissibility would be treated as an ongoing matter is emphasized by the words "at any time." The existing duty on applicants to answer all questions truthfully and provide the required documents would continue. Visitors would be required to submit to a medical examination on request. The current powers of officers to board vehicles, inspect passengers, seize documents, and arrest vehicles would be continued.

In addition to covering any other matter with regard to the Division, regulations could be made respecting the conduct of examinations; the Minister could also provide instructions on the same matter.

As in the current law, the bill provides that people seeking to enter Canada would have to appear for an examination.(9) Canadian citizens and registered Indians under the Canadian Indian Act would have a right to enter and remain, while permanent residents could enter if the officer determined that the person had that status and continued to meet the requirements of the Act.

These clauses would authorize officers to admit people as permanent residents if their paperwork was in order, and to grant temporary residence to people if satisfied of their intentions. As noted before, the word "visitor" would no longer be used. An important new aspect of the law would be the introduction of "dual intent." People could be granted temporary entry even if their ultimate goal was to become a permanent resident, as long as the officer was convinced that their current intention was to stay on a temporary basis only.

As in the current law, officers could issue permits, cancellable at any time, to inadmissible people if circumstances justified that action. The Minister could issue instructions on the matter.

Clause 22 would continue the important power of the Minister to override the provisions of the Act and grant permanent residence on humanitarian and compassionate grounds or for reasons of public policy.(10) New to the law would be the requirement that the Minister would have to take into account the best interests of a child directly affected by the decision. This reflects the July 1999 decision by the Supreme Court of Canada in the Baker case.

The bill would clarify the residency requirements for permanent residents, a matter that has been problematic for years.(11) The main rule, to which there would be important exceptions, would be that, to retain permanent residence, a person would be required to be physically present in Canada for at least two years (730 days) out of every five. Certain persons would be deemed to be in Canada, even though they were away:

In addition to those precise provisions, regulations could be made governing "physical presence in Canada, [and] the circumstances in which a foreign national is deemed to be physically present …." Thus, although clause 24 would permit absences of permanent residents based on employment necessity to be counted as residence, the regulations could open the door to the self-employed, or to those employed by overseas firms, thus compounding the problem of the "absentee" permanent resident.

These provisions should be considered in conjunction with those in the new citizenship bill currently before Parliament;(12) that bill would require physical presence in Canada for three of the six years preceding a citizenship application.

Clause 26 deals with the rights of children of temporary residents to attend school. In general, all children would be permitted to attend school up to the university level; however, if a parent did not have authorization to work or study, a child would require an authorization.

Clause 27 states that permanent residents would receive a document as proof of that status, unless an officer determined otherwise.(13) The government first introduced the concept of such a card in Bill C-86, which was passed by Parliament in 1992. Cards might also be provided to temporary residents.

Regulations could be made covering all matters discussed above, including definitions, classes of temporary residents such as students and workers, and selection criteria. As noted, regulations could further define the concept of "physical presence."

These are very important clauses. Inadmissibility could result (unless otherwise specified) from past, present and future events, and would also cover omissions. While the current Act contains implicit groupings of inadmissibility provisions, the bill would add clarity to these groupings and simplify them. There would be nine grounds of inadmissibility, some with sub-categories. They will be noted in the order in which they appear in the bill.

Security: The bill would continue to make inadmissible those connected to espionage, subversion against a democratic government, subversion by force of any government,(14) terrorism, being a danger to the security of Canada, engaging in acts of violence that could injure Canadians, or being a member of an organization involved in espionage, subversion, or terrorism. As is currently the case, however, the Minister could admit such persons if their presence would not be detrimental to the national interest. That decision could not be delegated.

Human Rights Violations: This ground would continue the prohibition against war criminals and senior officials of regimes that violate human rights norms (by terrorism, serious human rights violations, war crimes, or crimes against humanity). Currently, the list of senior officials is included in the Act; the bill would make the list subject to regulations.(15) A new provision would also make inadmissible representatives of a government against which Canada had imposed sanctions, or had the intention to do so. As is the currently case, the Minister could admit persons described in this paragraph if their presence would not be detrimental to the national interest. That decision could not be delegated.

Serious Criminality: "Serious criminality," as defined, would make inadmissible all foreign nationals applying for permanent or temporary residence, or, if they were in Canada, would warrant their removal. A variant of this definition would apply for the purpose of refugee protection. The following chart illustrates the proposed rules:

CRIMES INSIDE CANADA	CRIMES OUTSIDE CANADA
All Foreign Nationals: Conviction of an offence under an Act of Parliament which carries a maximum term of 10 years or more in prison OR having received a prison sentence of more than 6 months.	All Foreign Nationals: Conviction of an offence outside Canada that, if committed in Canada, would be an offence under an Act of Parliament which carries a maximum term of 10 years or more in prison. Rehabilitation possible.
	Commission of an act outside Canada that was an offence where it was committed, and if committed in Canada, would be an offence under an Act of Parliament which carries a maximum term of 10 years or more in prison. Rehabilitation possible.
For Purposes of Refugee Protection: Conviction of an offence under an Act of Parliament which carries a maximum term of 10 years or more in prison AND having received a prison sentence of at least two years. Note: currently there is no reference to a prison sentence and the person must be declared to be a danger to the public in Canada in order to be ineligible to make a refugee claim or be deported.(16)	For Purposes of Refugee Protection: Conviction of an offence outside Canada that, if committed in Canada, would be an offence under an Act of Parliament which carries a maximum term of 10 years or more in prison. Rehabilitation possible. Note: there must currently be a "danger to the public in Canada" assessment.

Criminality: For non-permanent residents, the foregoing standards would apply, as would the less serious criminality standards below.

CRIMES INSIDE CANADA –NON-PERMANENT RESIDENTS

CRIMES OUTSIDE CANADA -- NON-PERMANENT RESIDENTS

Conviction of an offence under any Act of Parliament punishable on indictment (even if prosecuted summarily) or two separate summary offence convictions.

Conviction of an offence that, if committed in Canada, would be an indictable offence under any Act of Parliament or two unrelated offences that would be summary conviction offences under an Act of Parliament. Rehabilitation possible.

Commission, on entering Canada, of a prescribed offence under an Act of Parliament.

(This is a new provision.(17))

Commission of an act that was an offence where it was committed, and if committed in Canada, would be an indictable offence under an Act of Parliament. Rehabilitation possible.

The term "rehabilitation possible" in the above charts means that the Minister would have the power to decide that the person had been rehabilitated after a prescribed period, or was a member of a prescribed class that was deemed to have been rehabilitated.

Organized Crime: Belonging to a group engaging in organized crime would continue to be grounds for inadmissibility. New to the description of what constitutes organized crime would be engaging in transnational people smuggling, trafficking in persons, or money laundering. The Minister would have the power to admit such people if satisfied that admission would not be detrimental to the national interest. The power could not be delegated. A new provision would ensure that the people brought to Canada as a result of organized crime would not on that count alone be considered inadmissible. This reflects the view that many of those who are "trafficked" are in fact victims.

Health: The current grounds would continue. People would be inadmissible if they were likely to be a danger to public health or public safety, or might reasonably be expected to place excessive demand on health or social services. Permanent residents could not be removed on these grounds.

Financial Reasons: The current grounds would continue. People would be inadmissible if unable or unwilling to support themselves or their dependants without relying on social assistance. Permanent residents could not be removed on these grounds.

Misrepresentation: Currently, a permanent resident can be reported if landing was granted by means of improper documents, or by "means of any fraudulent or improper means or misrepresentation of any material fact." The bill simplifies this provision, and perhaps expands it somewhat, by stating that a foreign national would be inadmissible who, directly or indirectly, made a material misrepresentation, or withheld relevant information that led (or could have led) to an error in administering the Act. Where a sponsor had made the misrepresentation, the Minister would have some discretion in the matter. A refugee whose status had been vacated for misrepresentation would also come under this ground of inadmissibility, which would remain in force for a two-year period.

Non-Compliance with the Act: A foreign national, except for a permanent resident, would be inadmissible for contravening any provision of the Act. Permanent residents would only become inadmissible under this general provision for failing to meet the physical presence requirements.

Clause 37(2) would change the existing treatment of family groups. If accompanying dependants (or in prescribed cases, non-accompanying dependants) were inadmissible, the whole group would be inadmissible.

Regulations could be made relating to any of the above inadmissibility clauses, including definitions. They could also provide for the circumstances in which a class of foreign nationals would be exempted from any of the inadmissibility provisions. This power could be used, for example, to exempt from the medical requirements refugees selected abroad or specified members of the family class.

Whereas the current Act is a complex web of reports and distinctions, the bill states simply that if a designated officer believed that a foreign national in Canada was inadmissible, he or she would prepare a report and transmit it to the Minister (who would, of course, delegate its receipt).

If the Minister considered the report to be founded, an admissibility hearing would be held or, in cases prescribed by the regulations, a removal order could be made immediately. Immigration officers may currently make removal orders under certain circumstances; it remains to be seen whether that power would be broadened under the new Act.

The current Adjudication Division of the Immigration and Refugee Board would be renamed the Immigration Division, and "inquiries" would be renamed "admissibility hearings." The admissibility hearing could authorize entry as a citizen, a permanent resident, or a temporary resident, or issue a removal order.

The admissibility hearing is covered in one short clause (clause 40), which does not mention the name of the officers, currently called adjudicators, who would preside over it. Procedural matters and the rights of the parties are all covered under Part 4 of the bill.

Although permanent resident status would not be defined in the Act, clauses 41 and 42 deal with its loss. It would cease upon a person’s becoming a citizen; it would be lost once it had been finally determined that a person had not met the residency requirements and after all humanitarian and compassionate considerations, including those relating to affected children, had been taken into account. It would also be lost once a removal order became enforceable or, for refugees, when their status had been finally determined to be vacated.

Temporary residents would lose their status when the authorized period of time in Canada expired, when the conditions of stay had been violated or when a permit was cancelled.

Generally speaking, a removal order would be enforceable if there was no right to appeal the order. If there was such a right, the removal order would become enforceable once all proceedings had been completed.

Refugee claimants, as now, would receive conditional removal orders, which would become enforceable shortly after the claimant had been found to be ineligible to make a claim, or when the claim and any appeal had been finalized. Thus, there would be no automatic stay of a removal order if a refused claimant applied for judicial review.(18)

As in the current law, there would be a requirement for a removal order to be enforced as soon as was reasonably practicable. As now, persons concerned could seek a stay of the order from the court; the Minister would have to be given the opportunity to make submissions. The Minister could specify certain countries for which removal orders could be stayed temporarily. This power would be subject to regulations; the list would likely mirror the current informal short list of countries to which Canada will not normally deport people, and might include other countries known to produce refugees.

As is currently the case, individuals who had been subject to an enforceable removal order could not re-enter Canada without permission, and without paying the costs of the removal (to be established by regulation). Where a person who had no right to appeal the order had been removed from Canada and the order had then been set aside on judicial review, the person would have the right to return to Canada at the expense of the Minister.

As in the rest of the bill, regulations could be made relating to any matter in the above section. One looks in vain for a description of different kinds of removal orders, similar to that in the current Act. It is likely that the general and specific powers of clause 49 would be used for this purpose.

With some exceptions, Bill C-31 would continue the policy of the current law on detention. There would be a power to detain at a port of entry for administrative reasons; that is, if an examination had to be adjourned or until an admissibility hearing could start. Detention could also commence at the port of entry for those suspected of being inadmissible on grounds of security or violating of human rights. This would be similar to the current law.

The major grounds for detention would continue to be: that a person posed a danger to the public; was unlikely to appear for any procedure under the Act; or was unable to establish his or her identity. The current structure of review would also continue. An officer could order release before 48 hours; at the 48-hour point or shortly thereafter, the Immigration Division would review the reasons for the detention. A review would be conducted after seven days, and then once during every 30-day period. Under the current system, people detained for identity and security/human rights reasons have a review every seven days, with no provision for switching to every 30 days.

References to "cooperation" by detainees would be introduced for those detained because of their failure to provide identification. They could be released if: they had cooperated with the Minister by providing information relevant to establishing their identity AND their identity had been established, or if their identity was impossible to establish, despite reasonable efforts of the Minister. Alternatively, they could be released if the Minister had not made reasonable efforts to establish the identity.

These provisions would put strong pressure on unidentified individuals to cooperate by providing relevant information to assist officials. Otherwise, they could be released only if the Minister took no reasonable steps to establish their identity.

Currently, there are no regulations governing detention, although both the Department and the Immigration and Refugee Board have developed detention guidelines. The bill provides that regulations could be made governing the conditions of release, and the grounds and criteria regarding release. Criteria regarding the detention decision could also be developed, as well as any special rules regarding minor children.

Although the background materials to the bill state that persons entering as part of a criminally organized smuggling ring would be detained, there is no such provision in the bill. It is likely the intention to place that ground of detention in the regulations as a factor to be taken into consideration in evaluating the risk of flight. Including this provision in the bill, however, would seem to send a stronger deterrent message to smugglers and their victims.

As in the current law, certain groups would have full appeal rights to the Immigration Appeal Division against a decision or a removal order, while for others, these rights would be restricted or eliminated.

In general, sponsors of family class members would be able to appeal a refusal; permanent residents and Convention refugees would be able to appeal a removal order, as would people who had lost their permanent status. An appeal could consider matters of law, fact, and humanitarian and compassionate considerations. The Minister could also appeal any decision of an admissibility hearing on grounds of law or fact. The Division would be specifically directed to consider the best interests of any children directly affected by a decision.

The restriction of appeal rights on the basis of serious criminality would mark a significant departure from the current system, which dates from 1995 when Bill C-44 came into force. Currently, permanent residents who have been convicted of an offence carrying a maximum period of imprisonment of 10 years or more are not allowed to appeal to the Appeal Division if the Minister files an opinion stating that the person is a danger to the public in Canada. The administrative process for reaching that decision begins in local offices, and the decision is made centrally in Ottawa. It involves weighing a number of factors concerning the crime, the circumstances, and the offender. That process would be replaced by the objective fact that a person had been sentenced to prison for two years or more.

Another significant departure from the current law would be the elimination of the right of appeal to the Appeal Division for those inadmissible on grounds of security, organized crime, and violating human rights. Currently, unless there has been a security certificate, these individuals have full appeal rights.

The Immigration Appeal Division could reopen an appeal only on the basis that it had failed to observe a principle of natural justice and only if the person were still in Canada. New evidence would therefore not justify a re-opening.

Judicial review by the Federal Court would continue for all matters that arose under the Act. Currently, matters involving the decisions of visa officers overseas do not require leave of the court to bring an application. This would be changed so that all applications for judicial review would require leave. With that exception, the rules regarding applications for leave to commence an application for judicial review, and the review, would be virtually identical to the current law.

It is important to note that individuals (including the new categories described above) who would be denied the right to appeal a removal order would continue to have the right to make an application for judicial review, with leave of the court.

The law currently contains provisions for dealing with removal cases involving sensitive material that the government wishes to keep entirely or partly confidential. In these cases, the Solicitor General and the Minister of Citizenship and Immigration jointly make either a report or sign a certificate alleging that the person is inadmissible and stating the grounds. In the case of a permanent resident, the report is referred to the Security Intelligence Review Committee, which investigates the grounds upon which it is based, and then reports its findings to the Governor in Council. The latter then directs the Minister to issue a certificate (if in agreement with the report) and the person becomes removable.

For non-permanent residents, the Solicitor General and the Minister sign a certificate, which is referred to the Federal Court for review by either the Chief Justice or a designated judge, who may uphold the certificate or quash it. Confidentiality requirements are established in each type of proceeding. The subject of the proceedings may be excluded and receives a summary of the evidence.

Bill C-31 would eliminate the differences in procedure between permanent residents and others. Foreign nationals, whatever their status, would have a jointly-signed certificate reviewed by the Federal Court. Most of the provisions governing that procedure would be the same as under the current law, although the "danger opinions" that the Minister would have to provide in regard to the deportation of a refugee could be combined with this proceeding. A new provision would instruct the judge to deal with all matters informally and as expeditiously as would be consistent with fairness and natural justice.

A person named in the certificate noted above who was a permanent resident could be detained if the Ministers had reasonable grounds to believe he or she was a danger to national security, or to the safety of persons, or would be unlikely to appear. Non-permanent residents named under a certificate would have to be detained.

A judge would review the detention of a permanent resident within 48 hours, and at six-month intervals thereafter, or more frequently should the judge allow. For others in detention under these circumstances the current law would continue. They could apply to the Minister for release to permit departure from Canada, or could apply to the judge if they were not removed within 120 days after the Federal Court had found the certificate reasonable. The judge could then order release if removal was not in sight, and the person was thought not to pose a danger to national security or to the safety of persons.

The current confidentiality provisions applying to hearings of the Immigration Appeal Division, detention reviews, and specified judicial reviews would be consolidated; to them would be added confidentiality rules regarding admissibility hearings. (There are no such provisions currently for inquiries.) In each case, the Minister could make an application for the non-disclosure of information. The same rules would apply, making any necessary changes, as for the Federal Court certificate process, with the exception that the presiding officer of the proceeding would perform the functions of the judge. In judicial review proceedings, the judge would not be required to provide a summary to the person concerned, presumably because the record relating to the decision would already have been provided to the person.

This Division would continue the existing provisions whereby loans can be made, with regulations to govern the purposes for which they could be made and who would be eligible.

The issuance of social insurance number cards identifying individuals required to obtain permission to work in Canada would continue.

Clause 84 would permit the incorporation by reference of material produced by other than the Governor in Council as permitted by the Act. This material would not itself become a regulation. It could include, for example, external standards for evaluating educational attainment or professional qualifications.

Finally, as is the case now, the Minister would be required to submit a report to Parliament by 1 November of each year. The report would be a combination of an annual report and what is currently called the "Levels Report," concerning projected immigration levels for the coming year. For the preceding year, information would be presented concerning the number of foreign nationals selected in the various categories, details of the agreements with provinces, the number of permits issued, the number of people allowed by the Minister to be landed on humanitarian and compassionate grounds, and information on loans.

This Division begins with definitions: "refugee protection," "Convention refugee," and "person in need of protection." The definition of "Convention refugee" would not change. "Refugee protection" is the umbrella term to describe the protection given to the different kinds of people who would be protected under the Act; in the current Act, only "Convention" refugees are recognized.

A "person in need of protection" could be a member of a class prescribed in regulations, or as described in the Act. With one addition, that definition would mirror very closely the current definition of "member of the post-determination refugee claimants in Canada class." This class provides refugee claimants who have failed to be recognized as Convention refugees by the Immigration and Refugee Board an opportunity to apply to the Department for consideration on general grounds relating to risk.

The equivalent definition in the current regulations of "person in need of protection" would be expanded in the bill by a reference to those who, there were substantial grounds to believe, would face the danger of torture should they be returned to their country of origin. Even with that addition, the criteria would remain very stringent. The individual would have to be subject to a risk to his or her life or to a risk of cruel and unusual treatment or punishment. However, the risk would have to be personal to that individual (in the sense that others in the country would not generally face the same risk), and would have to be faced in every part of the country. It could not be tied to the imposition of lawful sanctions unless those were beyond what were accepted internationally ("persecution not prosecution"), and could not be related to the inability of the country of origin to provide adequate health or medical care. These criteria as applied by departmental officials have led to a very low acceptance rate.

Adding those "in need of protection" to the Convention refugee definition would be necessary in order to consolidate most of the decisions relating to risk at the Immigration and Refugee Board. This approach has been supported by many commentators on the system, including the Standing Committee on Citizenship and Immigration in its two latest reports. Thus, while it might appear that the definition of "refugee" would be expanded, in fact the existing mechanisms that have been available to refugee claimants for some time would be consolidated.

Claims to refugee protection could, as now, be made outside or inside of Canada. In the former case, the claim would be treated as an application for immigration and treated under Part 1. In-Canada claims would be referred to the Immigration Board; if successful, most individuals would (as now) be eligible to apply for permanent resident status under Part 1.(19)

As happens now, a person in Canada could make a refugee claim if not subject to a removal order. The provisions of Part 1 would continue to apply; this would cover, for example, such matters as detention, the definitions relating to inadmissibility (security, serious criminality and so on) and the certificate process, all described above.

The concept of eligibility to make a refugee claim would be retained, and would remain the jurisdiction of departmental officials. In an effort to speed up the process, a period would be prescribed within which the officer would be required to make a decision.(20) After that time, if the officer had not found the person ineligible, or suspended consideration because an adverse report had been referred to the Immigration Division for determination or because the person had been charged with a serious crime,(21) the claim would be deemed to have been referred to the Refugee Protection Division (the former Refugee Division) of the Immigration and Refugee Board.(22)

With an important exception, the ineligibility criteria would remain essentially the same. Thus, claimants already recognized elsewhere (and returnable there) and in Canada, those previously found to be ineligible or who had abandoned or withdrawn their claims,(23) those coming from prescribed ("safe") countries, and those inadmissible on grounds of security, violating human rights, serious criminality or organized criminality would continue to be ineligible to make a refugee claim.

Claimants presenting second claims after being refused and leaving Canada must now wait 90 days. Under the bill, they would not have access to the Board, but would be allowed only a pre-removal risk assessment by departmental officials, and only after being out of the country for one year.

With regard to ineligibility on grounds of serious criminality, at present the Minister must provide an opinion that the person presents a danger to the public in Canada. That would be lost under the new Act. A claimant would in future be ineligible if he or she had been convicted in Canada of an offence punishable by a prison term of 10 years or more AND the sentence imposed had been more than two years (regardless of the circumstances); if an offence had been committed abroad, it would have to be equivalent to a Canadian offence with a maximum sentence of 10 years or more in prison.

As in the current Act, regulations could prescribe "safe" third countries to which claimants could be returned.(24) With the exception of a new reference to countries party to and respecting the Convention Against Torture, the factors that the Governor in Council would have to take into account in prescribing a list would remain the same.

Under the current Act, the concept of ineligibility is ongoing only with regard to criminality. Under the bill, a claim could be stopped for any reason relating to ineligibility if the relevant information had not been brought to the attention of the officer prior to referral, if the person had been charged with a serious crime, or if a report had been made to the Immigration Division regarding ineligibility on grounds of security, serious criminality, and so on. Material misrepresentation or withholding information relevant to eligibility would also stop a claim, and nullify any decision.

As happens now, in the case of multiple claims by the same person, a later claim would not be considered, or consideration would be stopped; only the decision on the first claim would be valid.

Extradition proceedings with respect to an offence under Canadian law carrying a maximum sentence or 10 of more years of imprisonment would have precedence over a refugee claim. If an order of surrender were made, the person would be deemed to have had a refugee claim rejected on the basis that he or she had committed a serious non-political crime prior to admission.(25) No refugee claim would be permitted once the order of surrender had been made. Any review of the decision would be taken under the Extradition Act.

It was noted above that claimants who did not cooperate in establishing their identity would likely be detained. Once the claim reached the Refugee Protection Division, the Division would be required to consider the question of documentation. Claimants who did not possess documentation establishing their identity, had not taken reasonable steps to obtain it, and could not reasonably explain the situation to the Division, would have those facts taken into account when the Division assessed their credibility. Clearly, the intention would be to provide measures to deter the destruction of documents and the practice of trying to conceal a true identity.

As happens now, if the Division found that there was no credible basis for the refugee claim, this fact would have to be stated in writing. There would be no legal consequences to this statement (as there are currently) but administratively such information could indicate to officials that the case should be a priority for removal.

Cessation of protection is currently a matter for which the Minister must bring an application to the Division. Under Bill C-31, the Division itself would be required to reject a claim under the cessation criteria, which would remain the same.(26) The concept would seem to be that the Division would have found the person to be a refugee, had that status not ceased. The Minister would continue to have the right to bring a cessation application at any time following refugee recognition.

Currently, the Minister must make an application to the Chairperson of the Board to bring an application to vacate a refugee status. Under the bill, the application would be as of right. The criteria would be the same, except that references to "fraud" would be dropped. This does not seem significant in view of the presence of the words "material misrepresentation, or withholding of information, relating to a relevant matter." The bill is silent on the quorum needed to hear such applications, which is currently three members; however, it should be noted that under clause 160(3) the Chairperson of the Board could establish the quorum for any hearing.

Since the design of the refugee status determination system in the middle 1980s, refugee advocates have been extremely critical of its lack of an appeal mechanism. The bill would introduce a new section to the Board, the Refugee Appeal Division, whose mandate would be to determine appeals from either refused claimants or the Minister.(27) The grounds would be wide: law, fact, or mixed law and fact. On the other hand, the appeal would not consist of a hearing but would be based on the record of the proceedings of the Refugee Protection Division and any submissions made by the parties.

The Refugee Appeal Division could confirm the original decision, substitute its own opinion (except if it felt a hearing was required or the appeal had been brought by the Minister and was based on the claimant’s credibility), or refer the matter back to the Refugee Protection Division for a re-determination, together with any directions it considered appropriate.

With exceptions and limitations, and in accordance with the regulations, individuals under an enforceable removal order could appeal to the Minister for protection.(28) The exceptions would be people for whom the surrender decision had been made under the Extradition Act, and those ineligible to have their refugee claims determined because they could be returned to a safe third country.

Those found ineligible on other grounds, or whose claim had been abandoned, withdrawn or rejected, and who had left Canada and then returned, would have to wait one year for the review. This would be a significant change from the existing law, which permits those who leave Canada a second claim 90 days after the first.(29) The bill would allow only the pre-removal risk assessment application; for those whose refugee claims had been rejected before, only new evidence that had arisen after, or that had not been reasonably available at the time of the first hearing, would be received. Successful applicants in these categories would be allowed to apply for permanent residence.

Individuals who had been found ineligible on the grounds of security, violating human rights, serious criminality or organized criminality, or who had been excluded from the protection of the Convention for serious reasons (see the Schedule to the bill), would be assessed on the danger they posed to the public in Canada, or whether it would be contrary to the national interest for them to be allowed to stay. If relief were granted in these situations, it would be by way of a stay of the removal order. Thus the person could be removed at a later time if country of origin circumstances changed.

For people inadmissible on grounds of serious criminality, this stage would be the first assessment of the danger they posed to the public. In contrast, for people found inadmissible on grounds of security, violating human rights or organized criminality, this stage would be the second time the national interest would be weighed. This is because the national interest test would be part of those inadmissibility grounds in Part 1, Division 4.

Clause 108 would state the central principle of the Convention Relating to the Status of Refugees, that of non-refoulement (non-return) to a country where a person fears persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. To these reasons would be added the risk of torture or cruel and unusual treatment or punishment. As in the current law, that principle would not prevent the removal of certain groups: serious criminals who posed a danger to the public in Canada; those inadmissible on grounds of security, violating human rights, or organized criminality if it would be contrary to the national interest for them to remain, taking into account the nature and severity of the acts they had committed and the danger to the security of Canada. Regulations would govern the making of these applications.

The existing offence of organizing the entry into Canada of people without the required documents would be retained, with higher penalties. For those convicted on indictment of smuggling under 10 people, the maximum fine would increase to $500,000 (from $100,000) and/or the maximum jail term would rise to 10 years (from five). A new provision would raise the maximum penalties for conviction on a subsequent offence to $1 million and/or 14 years in prison. Summary conviction penalties would also be increased.

For smuggling groups of 10 or more people, the maximum fine would rise to $1 million and/or life in prison. As in the current law, the consent of the Attorney General of Canada would be required to institute a prosecution (although the requirement that this consent be "personal" and "written" would be dropped).

A new offence would cover "trafficking in persons." It would prohibit bringing people to Canada by means of threat, force, abduction, fraud, deception or coercion. Those who received the individuals would also commit the offence. Disembarking people at sea would continue to be an offence.

A new provision would provide a list of aggravating factors for the court to take into account in sentencing under these provisions. Such matters as the degree of harm, including death; criminal organization; a profit motive; and the treatment of the people, including matters relating to their health, would all be relevant to the severity of the sentence.

The offences relating to documents would be clarified and expanded, and serious penalties imposed. Aggravating factors would be prescribed for sentencing: whether the commission of the offence was connected to a criminal organization, and whether the offence was committed to gain profit.

The general offences of escaping custody or detention, employment of a person not authorized to work, making a material misrepresentation, refusing to answer questions, and the offences relating to malfeasance by officers in the performance of their duties would all be continued by the bill; however, the penalties would for the most part be significantly increased. The offence of counselling misrepresentation, currently limited to the making of refugee claims, would also be included here.

New provisions would prohibit the possession of any property or proceeds that had been obtained by the commission of the major offences of the Act, such as those relating to smuggling and trafficking, documents, misrepresentation and so on. Also prohibited would be the possession of the proceeds of money laundering relating to those offences. Officials involved in "sting" operations would be protected.

As is the case now, for people claiming refugee status in Canada who came directly or indirectly from the country from which they claimed persecution prosecution for offences relating to their entry and examination would be deferred, and successful claimants would not be prosecuted. The words "or indirectly" would be new.

This clause would permit a court that convicted a person of an offence to order the forfeiture of any related property. Regulations would be made covering matters that occupy numerous provisions of the current Act.

These clauses would provide enforcement officers with the powers to carry out their duties, including the power to require proof of identity, to examine documents, to search people and their effects, to seize objects and means of transportation, to administer oaths, and so on. A certain number of officers would also be peace officers, with the authority to execute warrants and make arrests.

Proceedings relating to offences prescribed by the regulations could be commenced by a ticket under procedures established in this clause and in the regulations.

These clauses provide mechanisms whereby the Minister could collect debts owing to the government, including by way of garnishment. These provisions could facilitate the collection of money owing by defaulting sponsors.

Measures relating to transportation companies that occupy pages in the current Act would be reduced to six clauses in the new law. The regulations would, therefore, be extensive; they would enable terms to be defined, the rights and obligations of the companies to be spelled out, details to be specified to allow the Minister to require a transportation company to provide facilities and equipment (likely detention facilities), the procedures to be followed upon the seizure of a vehicle, and so on. A new provision in the bill would permit an airline to provide prescribed passenger information to officers to be used to identify passengers who were inadmissible to Canada or for whom there was a warrant for arrest. The airline would be required to notify passengers of any information that had been passed on.

As will have been evident from the description above of certain provisions of the bill, the Immigration and Refugee Board would be expanded and most of its Divisions renamed. The Adjudication Division would become the Immigration Division; the Refugee Division would become the Refugee Protection Division, and the new appeal body would be called the Refugee Appeal Division.

Members would continue to be appointed by the Governor in Council; those in the Immigration Division would continue to be public servants. New would be a provision requiring members not to hold any office or employment inconsistent with their position. New also would be civil and criminal immunity for members’ actions taken in the course of their duties, and the fact that they would not be competent or compellable witnesses in any civil proceeding under the Act. The remaining provisions would remain the same.

New in this regard would be the power of the Governor in Council to assign the members of the Board (other than the members of the Immigration Division) to a regional or district office. In addition, the Executive Director of the Board is currently appointed by the Governor in Council, but under the bill that position would become part of the public service.

The duties of the Chairperson would be consolidated and expanded somewhat. In particular, the Chairperson would appear to be given more control over the way members performed their duties, including the assignment of administrative duties. New would be the power to designate coordinating members (which now rests with the Governor in Council), to identify decisions as jurisprudential guides, and to make rules regarding the conduct of people who appeared before the Board. There is no mention of "counsel" to the Board (refugee claim officers) as there is in the current Act.

Very important rights and procedural rules would be contained in this and the next section. A new provision would allow a single member to form a quorum to hear any matter. With the exception of the Immigration Division, the Chairperson could order a matter to be heard by a panel of three members. The change to single-member panels was first proposed in 1995 and it is anticipated that it would considerably streamline the functioning of the Board.

The role of a representative of the United Nations High Commissioner for Refugees would be expanded from the present role as an observer only. Clause 161(2) would allow that individual to take part in any proceedings concerning claimants or people who had achieved refugee protection, and to have access to the evidence given and to the reasons for a decision.

All decisions would require reasons; they could be oral or written, except for the Refugee Appeal Division, for which all reasons would be written. Written reasons would also be required of the Refugee Protection Division for rejected claims, or if requested by the parties or required by the rules of the Board.

Currently, the Minister (through a representative) is somewhat restricted in the role he or she may play during a refugee hearing. Bill C-31 would remove these restrictions. The Minister would receive notice of all hearings and, if in attendance, would have the same rights of participation as the claimant.

As noted previously, the appeal by the Refugee Appeal Division would be on paper. The Minister, as well as the person concerned, would be allowed to make submissions. In a provision that should foster consistency across the very decentralized system, decisions on questions of law made by a panel of three members would be binding on the Refugee Protection Division. It is not yet evident whether or not a three-member panel would be the norm; if not, having many decisions made by single-member panels would not be likely to foster consistency.

These provisions cover the method of dealing with appointed members of the Board who may have become incapacitated, been guilty of misconduct, failed to perform their duties, or been placed in a position incompatible with their duties. Most of the provisions of the bill would be the same as those in the current Act, with some exceptions. One is that under the bill, the matter could be referred for mediation if the Minister thought it appropriate, and interested parties, in addition to the person concerned, could participate in the inquiry on terms set by the judge. The final decision, as now, would rest with the Governor in Council, who could take any remedial action recommended by the judge, or could substitute another. The Governor in Council would, however, retain the ability to remove members for cause. Since the Chairperson of the Board would initiate the remedial/disciplinary process, reserving this power would leave the Governor in Council with the means of removing the Chairperson if it became necessary.

Although the Immigration Act in general would be repealed, the many provisions governing the investigation and control of immigrant investor funds, would continue to be law.

How to treat work in progress can often be controversial when a statute is replaced. Bill C-31 provides, generally, that all matters that had been pending or in progress under the current Act, would be governed by the new Act and assigned to the appropriate new Division. However, cases that had begun under the current Refugee Division and the Appeal Division and in which substantive evidence had been introduced would be governed by the provisions of that Act, unless a decision had been made.

Refugee cases in which a hearing had already commenced before the Refugee Division would not be eligible for the new appeal process. Where decisions had already been made by the Refugee Division at the time the new Act came into force, there would also be no appeal.

Individuals whose appeals were in process to the Immigration Appeal Division but who would not have the same appeal rights under the new law, would lose their right to an appeal unless they had already been granted a stay of their removal order.

Regulations could be made regarding the transition process, "including measures regarding classes of foreign nationals who will be subject in whole or in part to this Act or the former Act." This power could be used to cover the situations of groups differently named in the current and future law ("visitors," for example), or to provide for specific situations of transition not appropriately covered by the general rule.

Most of the consequential amendments involve changing references to the Immigration Act in other statutes to the Immigration and Refugee Protection Act. Others are consequent on the changes that would eliminate the functions of the Security Intelligence Review Committee, or affect the Citizenship Act.(30) The definition of "enterprise crime offence" in the Criminal Code would be amended to include listed offences in the new Act, including the smuggling and trafficking provisions.

Much of the press coverage of the bill when it was first tabled was positive. The prospect of a faster and "tougher" refugee determination system appealed to many, as did promises to end abuses in the system, although some of the proposals that were praised were already in fact in the existing law. The proposal to increase penalties for people smuggling was lauded, although some pointed out that the penalties were already very high and that, in any case, the organizers were generally offshore. A number of commentators called the bill fair and reasonable, though some suggested that it did not go far enough. The apparent expansion of the scope of refugee protection was questioned.

As noted previously, however, most of the press coverage did not distinguish between provisions actually contained the bill, those that the government announced it expected to place in regulations, and administrative changes. The proposed regulatory changes to the family class, for example, could have been made at any time. In the administrative category may be placed the announcement that criminality and security checks for refugee claimants would be commenced upon their arrival, rather than upon their application for permanent residence, as happens now. Clearly that is a change that could also have been made at any point in the past.

Those who commented on the consolidation of most risk reviews at the Immigration and Refugee Board were generally positive, although the restricted appeal rights received mixed reviews. The wide sweep of the regulatory powers in the bill was noted, as was the fact that regulations receive far less public scrutiny (if any) than does a bill.

Refugee advocates called the stricter provisions, particularly for refugee claimants, an overreaction to the arrival of the Chinese migrants last summer; the word "draconian" was used. They wondered whether the new provisions might tarnish Canada’s reputation for welcoming newcomers. Concerns were voiced that the bill would weaken protections for refugees; the Minister’s rhetoric, said to imply an association between refugee claimants and criminality and security threats, was decried. On the other hand, the proposed institution of a refugee appeal on the merits was welcomed.

Some of the other features of the bill that refugee advocates may question in the coming months include the facts that: