Bill C-31

60-61 ELIZABETH II

——————

CHAPTER 17

An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act

[Assented to 28th June, 2012]

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Protecting Canada’s Immigration System Act.

IMMIGRATION AND REFUGEE PROTECTION ACT

2. Subsection 2(1) of the Immigration and Refugee Protection Act is amended by adding the following in alphabetical order:

“designated foreign national” has the meaning assigned by subsection 20.1(2).

3. Subsection 6(3) of the Act is replaced by the following:

(3) Despite subsection (2), the Minister may not delegate the power conferred by subsection 20.1(1) or 77(1) or the ability to make determinations under subsection 34(2) or 35(2) or paragraph 37(2)(a).

4. The headings before section 11 of the Act are replaced by the following:

PART 1

IMMIGRATION TO CANADA

Division 1

Requirements and Selection

Requirements

5. Section 11 of the Act is amended by adding the following after subsection (1):

(1.1) A designated foreign national may not make an application for permanent residence under subsection (1)

(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

(c) in any other case, until five years after the day on which they become a designated foreign national.

(1.2) The processing of an application for permanent residence under subsection (1) of a foreign national who, after the application is made, becomes a designated foreign national is suspended

(a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

(c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

(1.3) The officer may refuse to consider an application for permanent residence made under subsection (1) if

(a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and

(b) less than 12 months have passed since the end of the applicable period referred to in subsection (1.1) or (1.2).

6. The Act is amended by adding the following after section 11:

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:

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:

Undertakings

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:

(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):

(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.

10. The Act is amended by adding the following after section 20:

20.1 (1) The Minister may, by order, having regard to the public interest, designate as an irregular arrival the arrival in Canada of a group of persons if he or she

(a) is of the opinion that examinations of the persons in the group, particularly for the purpose of establishing identity or determining inadmissibility — and any investigations concerning persons in the group — cannot be conducted in a timely manner; or

(b) has reasonable grounds to suspect that, in relation to the arrival in Canada of the group, there has been, or will be, a contravention of subsection 117(1) for profit, or for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

(2) When a designation is made under subsection (1), a foreign national — other than a foreign national referred to in section 19 — who is part of the group whose arrival is the subject of the designation becomes a designated foreign national unless, on arrival, they hold the visa or other document required under the regulations and, on examination, the officer is satisfied that they are not inadmissible.

(3) An order made under subsection (1) is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.

20.2 (1) A designated foreign national may not apply to become a permanent resident

(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

(c) in any other case, until five years after the day on which they become a designated foreign national.

(2) The processing of an application for permanent residence of a foreign national who, after the application is made, becomes a designated foreign national is suspended

(a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

(c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

(3) The officer may refuse to consider an application for permanent residence if

(a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and

(b) less than 12 months have passed since the end of the applicable period referred to in subsection (1) or (2).

11. (1) Subsection 21(2) of the Act is replaced by the following:

(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.

(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.

12. Section 24 of the Act is amended by adding the following after subsection (4):

(5) A designated foreign national may not request a temporary resident permit

(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

(c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

(6) The processing of a request for a temporary resident permit of a foreign national who, after the request is made, becomes a designated foreign national is suspended

(a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

(c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

(7) The officer may refuse to consider a request for a temporary resident permit if

(a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and

(b) less than 12 months have passed since the end of the applicable period referred to in subsection (5) or (6).

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.

(1.01) A designated foreign national may not make a request under subsection (1)

(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

(c) in any other case, until five years after the day on which they become a designated foreign national.

(1.02) The processing of a request under subsection (1) of a foreign national who, after the request is made, becomes a designated foreign national is suspended

(a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

(c) in any other case, until five years after the day on which they become a designated foreign national.

(1.03) The Minister may refuse to consider a request under subsection (1) if

(a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and

(b) less than 12 months have passed since the end of the applicable period referred to in subsection (1.01) or (1.02).

(2) Subsection 25(1.1) of the French version of the Act is replaced by the following:

(3) Subsection 25(1.2) of the Act is replaced by the following:

(1.2) The Minister may not examine the request if

(a) the foreign national has already made such a request and the request is pending;

(b) the foreign national has made a claim for refugee protection that is pending before the Refugee Protection Division or the Refugee Appeal Division; or

(c) subject to subsection (1.21), less than 12 months have passed since the foreign national’s claim for refugee protection was last rejected, determined to be withdrawn after substantive evidence was heard or determined to be abandoned by the Refugee Protection Division or the Refugee Appeal Division.

(1.21) Paragraph (1.2)(c) does not apply in respect of a foreign national

(a) who, in the case of removal, would be subjected to a risk to their life, caused by the inability of each of their countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, to provide adequate health or medical care; or

(b) whose removal would have an adverse effect on the best interests of a child directly affected.

(4) Subsection 25(1.3) of the French version of the Act is replaced by the following:

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

16. The Act is amended by adding the following after section 31:

Refugee Travel Document

31.1 For the purposes of Article 28 of the Refugee Convention, a designated foreign national whose claim for refugee protection or application for protection is accepted is lawfully staying in Canada only if they become a permanent resident or are issued a temporary resident permit under section 24.

17. Paragraph 40(1)(c) of the Act is replaced by the following:

(c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or

18. The Act is amended by adding the following after section 40:

40.1 (1) A foreign national is inadmissible on a final determination under subsection 108(2) that their refugee protection has ceased.

(2) A permanent resident is inadmissible on a final determination that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d).

19. (1) Subsection 46(1) of the Act is amended by striking out “or” at the end of paragraph (c) and by adding the following after paragraph (c):

(c.1) on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d); or

(2) Paragraph 46(1)(d) of the English version of the Act is replaced by the following:

(d) on a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination to vacate a decision to allow their application for protection.

20. Subsection 48(2) of the Act is replaced by the following:

(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.

21. Paragraph 49(2)(c) of the Act is replaced by the following:

(c) if the claim is rejected by the Refugee Protection Division, on the expiry of the time limit referred to in subsection 110(2.1) or, if an appeal is made, 15 days after notification by the Refugee Appeal Division that the claim is rejected;

22. Paragraph 53(e) of the Act is replaced by the following:

(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:

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.

(3) Section 55 of the Act is amended by adding the following after subsection (3):

(3.1) If a designation is made under subsection 20.1(1), an officer must

(a) detain, on their entry into Canada, a foreign national who, as a result of the designation, is a designated foreign national and who is 16 years of age or older on the day of the arrival that is the subject of the designation; or

(b) arrest and detain without a warrant — or issue a warrant for the arrest and detention of — a foreign national who, after their entry into Canada, becomes a designated foreign national as a result of the designation and who was 16 years of age or older on the day of the arrival that is the subject of the designation.

24. Section 56 of the Act is renumbered as subsection 56(1) and is amended by adding the following:

(2) Despite subsection (1), a designated foreign national who is detained under this Division and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question must be detained until

(a) a final determination is made to allow their claim for refugee protection or application for protection;

(b) they are released as a result of the Immigration Division ordering their release under section 58; or

(c) they are released as a result of the Minister ordering their release under section 58.1.

25. The Act is amended by adding the following after section 57:

57.1 (1) Despite subsections 57(1) and (2), in the case of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, the Immigration Division must review the reasons for their continued detention within 14 days after the day on which that person is taken into detention, or without delay afterward.

(2) Despite subsection 57(2), in the case of the designated foreign national referred to in subsection (1), the Immigration Division must review again the reasons for their continued detention on the expiry of six months following the conclusion of the previous review and may not do so before the expiry of that period.

(3) In a review under subsection (1) or (2), the officer must bring the designated foreign national before the Immigration Division or to a place specified by it.

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;

(d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or

(e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established.

(1.1) Section 58 of the Act is amended by adding the following after subsection (1):

(1.1) Despite subsection (1), on the conclusion of a review under subsection 57.1(1), the Immigration Division shall order the continued detention of the designated foreign national if it is satisfied that any of the grounds described in paragraphs (1)(a) to (c) and (e) exist, and it may not consider any other factors.

(2) Section 58 of the Act is amended by adding the following after subsection (3):

(4) If the Immigration Division orders the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, it shall also impose any condition that is prescribed.

27. The Act is amended by adding the following after section 58:

58.1 (1) The Minister may, on request of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, order their release from detention if, in the Minister’s opinion, exceptional circumstances exist that warrant the release.

(2) The Minister may, on the Minister’s own initiative, order the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question if, in the Minister’s opinion, the reasons for the detention no longer exist.

(3) If the Minister orders the release of a designated foreign national, the Minister may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that he or she considers necessary.

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;

(a.2) the type of conditions that the Immigration Division must impose with respect to the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question;

29. Subsection 87.3(1) of the Act is replaced by the following:

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:

(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.

31. (1) Paragraph 95(1)(c) of the Act is replaced by the following:

(c) the Board allows their application for protection.

(2) Subsection 95(2) of the Act is replaced by the following:

(2) A protected person is a person on whom refugee protection is conferred under subsection (1) and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3) or 109(3).

32. The Act is amended by adding the following after section 98:

98.1 (1) A designated foreign national on whom refugee protection is conferred under paragraph 95(1)(b) or (c) must report to an officer in accordance with the regulations.

(2) A designated foreign national who is required to report to an officer must answer truthfully all questions put to him or her and must provide any information and documents that the officer requests.

98.2 The regulations may provide for any matter relating to the application of section 98.1 and may include provisions respecting the requirement to report to an officer.

33. Section 99 of the Act is amended by adding the following after subsection (3):

(3.1) A person who makes a claim for refugee protection inside Canada other than at a port of entry must provide the officer, within the time limits provided for in the regulations, with the documents and information — including in respect of the basis for the claim — required by the rules of the Board, in accord-ance with those rules.

34. Paragraphs 101(2)(a) and (b) of the Act are replaced by the following:

(a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

(b) in the case of inadmissibility by reason of a conviction outside Canada, the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

35. (1) The portion of subsection 103(1) of the Act before paragraph (a) is replaced by the following:

103. (1) Proceedings of the Refugee Protection Division in respect of a claim for refugee protection are suspended on notice by an officer that

(2) Subsection 103(2) of the English version of the Act is replaced by the following:

(2) On notice by an officer that the suspended claim was determined to be eligible, proceedings of the Refugee Protection Division must continue.

36. (1) Subsections 110(1) and (2) of the Act are replaced by the following:

110. (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection.

(1.1) The Minister may satisfy any requirement respecting the manner in which an appeal is filed and perfected by submitting a notice of appeal and any supporting documents.

(2) No appeal may be made in respect of any of the following:

(a) a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection of a designated foreign national;

(b) a determination that a refugee protection claim has been withdrawn or abandoned;

(c) a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded;

(d) subject to the regulations, a decision of the Refugee Protection Division in respect of a claim for refugee protection if

(i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and

(ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(e) to be referred to the Refugee Protection Division;

(e) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that refugee protection has ceased;

(f) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection.

(2) Subsection 110(3) of the Act is replaced by the following:

(3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board.

37. Subsection 111(1.1) of the Act is repealed.

38. (1) Paragraph 112(2)(b.1) of the Act is replaced by the following:

(b.1) subject to subsection (2.1), less than 12 months, or, in the case of a person who is a national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since their claim for refugee protection was last rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division;

(1.1) Paragraphs 112(2)(c) and (d) of the Act are replaced by the following:

(c) less than 12 months have passed since their last application for protection was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or the Minister.

(2) Paragraph 112(3)(b) of the Act is replaced by the following:

(b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years;

39. (1) The portion of paragraph 113(d) of the Act before subparagraph (i) is replaced by the following:

(d) in the case of an applicant described in subsection 112(3) — other than one described in subparagraph (e)(i) or (ii) — consideration shall be on the basis of the factors set out in section 97 and

(2) Section 113 of the Act is amended by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d):

(e) in the case of the following applicants, consideration shall be on the basis of sections 96 to 98 and subparagraph (d)(i) or (ii), as the case may be:

(i) an applicant who is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punishable by a maximum term of imprisonment of at least 10 years for which a term of imprisonment of less than two years — or no term of imprisonment — was imposed, and

(ii) an applicant who is determined to be inadmissible on grounds of serious criminality with respect to a conviction of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, unless they are found to be a person referred to in section F of Article 1 of the Refugee Convention.

40. The Act is amended by adding the following after section 113:

113.1 The regulations may include provisions respecting the time limits for the making of a decision by the Refugee Protection Division with respect to an application for protection, the extension of those time limits and the circumstances in which they do not apply.

41. (1) Subsection 117(1) of the Act is replaced by the following:

117. (1) No person shall organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act.

(2) The portion of subsection 117(2) of the French version of the Act before paragraph (a) is replaced by the following:

(3) Subsection 117(3) of the French version of the Act is replaced by the following:

(4) Section 117 of the Act is amended by adding the following after subsection (3):

(3.1) A person who is convicted on indictment of an offence under subsection (2) or (3) with respect to fewer than 50 persons is also liable to a minimum punishment of imprisonment for a term of

(a) three years, if either

(i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, or

(ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group; or

(b) five years, if both

(i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, and

(ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

(3.2) A person who is convicted of an offence under subsection (3) with respect to a group of 50 persons or more is also liable to a minimum punishment of imprisonment for a term of

(a) five years, if either

(i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, or

(ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group; or

(b) 10 years, if both

(i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, and

(ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

42. (1) The portion of subsection 121(1) of the Act before paragraph (b) is replaced by the following:

121. (1) The court, in determining the penalty to be imposed under section 120, shall take into account whether

(a) bodily harm or death occurred, or the life or safety of any person was endangered, as a result of the commission of the offence;

(2) Paragraph 121(1)(d) of the French version of the Act is replaced by the following:

(3) Subsection 121(2) of the Act is repealed.

43. The Act is amended by adding the following after section 121:

121.1 (1) For the purposes of subparagraphs 117(3.1)(a)(ii) and (b)(ii) and (3.2)(a)(ii) and (b)(ii) and paragraph 121(b), “criminal organization” means a criminal organization as defined in subsection 467.1(1) of the Criminal Code.

(2) For the purposes of subparagraphs 117(3.1)(a)(ii) and (b)(ii) and (3.2)(a)(ii) and (b)(ii), “terrorist group” means a terrorist group as defined in subsection 83.01(1) of the Criminal Code.

44. (1) The portion of subsection 123(2) of the French version of the Act before paragraph (a) is replaced by the following:

(2) Paragraph 123(2)(a) of the Act is replaced by the following:

(a) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization as defined in subsection 121.1(1); and

45. Section 131 of the French version of the Act is replaced by the following:

46. Section 133.1 of the Act is replaced by the following:

133.1 (1) A proceeding by way of summary conviction for an offence under section 117, 126 or 127, or section 131 as it relates to section 117, may be instituted at any time within, but not later than, 10 years after the day on which the subject-matter of the proceeding arose, and a proceeding by way of summary conviction for any other offence under this Act may be instituted at any time within, but not later than, five years after the day on which the subject-matter of the proceeding arose.

(2) Subsection (1) does not apply if the subject-matter of the proceeding arose before the day on which this section comes into force.

47. (1) Paragraph 150.1(1)(b) of the Act is replaced by the following:

(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.

48. Section 153 of the Act is amended by adding the following after subsection (1):

(1.1) A member of the Refugee Protection Division may be appointed in accordance with the Public Service Employment Act rather than under paragraph (1)(a).

49. Section 161 of the Act is amended by adding the following after subsection (1):

(1.1) The rules made under paragraph (1)(c) may distinguish among claimants for refugee protection who make their claims inside Canada on the basis of whether their claims are made at a port of entry or elsewhere.

50. (1) Paragraph 166(c) of the Act is replaced by the following:

(c) subject to paragraph (d), proceedings before the Refugee Protection Division and the Refugee Appeal Division must be held in the absence of the public;

(c.1) subject to paragraph (d), proceedings before the Immigration Division must be held in the absence of the public if they concern a person who is the subject of a proceeding before the Refugee Protection Division or the Refugee Appeal Division that is pending or who has made an application for protection to the Minister that is pending;

(2) Paragraph 166(d) of the French version of the Act is replaced by the following:

(3) Paragraph 166(e) of the Act is replaced by the following:

(e) despite paragraphs (b) to (c.1), a representative or agent of the United Nations High Commissioner for Refugees is entitled to observe proceedings concerning a protected person or a person who has made a claim for refugee protection or an application for protection; and

51. The Act is amended by adding the following before the heading before section 171:

170.2 The Refugee Protection Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — a claim for refugee protection, an application for protection or an application for cessation or vacation, in respect of which the Refugee Appeal Division or the Federal Court, as the case may be, has made a final deter-mination.

52. Paragraph 171(a.4) of the Act is replaced by the following:

(a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal;

(a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister’s appeal or intervention in the appeal;

53. The Act is amended by adding the following after section 171:

171.1 The Refugee Appeal Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — an appeal in respect of which the Federal Court has made a final determination.

54. The Act is amended by adding the following after section 201:

201.1 The regulations may provide for measures regarding the transition — in respect of an application for protection — between this Act, as it read immediately before the day on which subsection 15(1) of the Balanced Refugee Reform Act comes into force, and this Act, as it read on the day on which that subsection comes into force.

55. Section 275 of the Act is replaced by the following:

275. Sections 73, 110, 111, 171, 194 and 195 come into force on a day to be fixed by order of the Governor in Council.

BALANCED REFUGEE REFORM ACT

56. Subsection 11(2) of the Balanced Ref-ugee Reform Act is amended by replacing the subsections 100(4) and (4.1) that it enacts with the following:

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

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

57. Section 11.1 of the Act is amended by replacing the section 107.1 that it enacts with the following:

107.1 If the Refugee Protection Division rejects a claim for refugee protection, it must state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent.

58. Section 12 of the Act is amended by replacing the section 109.1 that it enacts with the following:

109.1 (1) The Minister may, by order, designate a country, for the purposes of subsection 110(2) and section 111.1.

(2) The Minister may only make a designation

(a) in the case where the number of claims for refugee protection made in Canada by nationals of the country in question in respect of which the Refugee Protection Division has made a final determination is equal to or greater than the number provided for by order of the Minister,

(i) if the rate, expressed as a percentage, that is obtained by dividing the total number of claims made by nationals of the country in question that, in a final determination by the Division during the period provided for in the order, are rejected or determined to be withdrawn or abandoned by the total number of claims made by nationals of the country in question in respect of which the Division has, during the same period, made a final determination is equal to or greater than the percentage provided for in the order, or

(ii) if the rate, expressed as a percentage, that is obtained by dividing the total number of claims made by nationals of the country in question that, in a final determination by the Division, during the period provided for in the order, are determined to be withdrawn or abandoned by the total number of claims made by nationals of the country in question in respect of which the Division has, during the same period, made a final determination is equal to or greater than the percentage provided for in the order; or

(b) in the case where the number of claims for refugee protection made in Canada by nationals of the country in question in respect of which the Refugee Protection Division has made a final determination is less than the number provided for by order of the Minister, if the Minister is of the opinion that in the country in question

(i) there is an independent judicial system,

(ii) basic democratic rights and freedoms are recognized and mechanisms for redress are available if those rights or freedoms are infringed, and

(iii) civil society organizations exist.

(3) The Minister may, by order, provide for the number, period or percentages referred to in subsection (2).

(4) An order made under subsection (1) or (3) is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.

59. Section 14.1 of the Act is amended by replacing the section 111.1 that it enacts with the following:

111.1 (1) The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting

(a) time limits for the provision of documents and information under subsection 99(3.1) or 100(4);

(b) time limits for the hearing referred to in subsection 100(4.1);

(c) exceptions to the application of paragraph 110(2)(d);

(d) time limits for the filing and perfecting of an appeal under subsection 110(2.1); and

(e) time limits for the making of a decision by the Refugee Appeal Division, the extension of those time limits and the circumstances in which they do not apply.

(2) With respect to claimants who are nationals of a country that is, on the day on which their claim is made, a country designated under subsection 109.1(1), regulations made under paragraph (1)(b) may provide for time limits that are different from the time limits for other claimants.

60. (1) Subsection 15(1) of the Act is amended by replacing the portion of subsection 112(1.2) before paragraph (a) that it enacts with the following:

(1.2) Despite subsection 105(1), proceedings of the Refugee Protection Division in respect of an application are suspended on notice by an officer that

(2) Subsection 15(3) of the Act is amended by replacing the paragraph 112(2)(b.1) that it enacts with the following:

(b.1) subject to subsection (2.1), less than 12 months have passed since their claim for refugee protection was last rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division;

(3) Subsection 15(4) of the Act is amended by replacing the portion of subsection 112(2.1) before paragraph (a) that it enacts with the following:

(2.1) The Minister may exempt from the application of paragraph (2)(b.1) or (c)

61. Section 20 of the Act is amended by replacing the paragraphs 161(1)(a) and (a.1) that it enacts with the following:

(a) the referral of a claim for refugee protection to the Refugee Protection Division;

(a.1) the factors to be taken into account in fixing or changing the date of the hearing referred to in subsection 100(4.1);

62. Section 21 of the Act is repealed.

63. Section 23 of the Act is amended by replacing the subsection 167(1) that it enacts with the following:

167. (1) A person who is the subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel.

64. Section 24 of the Act is repealed.

65. Subsection 25(3) of the Act is amended by replacing the French version of the subsection 169(2) that it enacts with the following:

66. Sections 33 and 34 of the Act are replaced by the following:

33. (1) Except its subsections 100(4) and (4.1), the Immigration and Refugee Protection Act, as amended by this Act, applies to every claim for refugee protection that is referred to the Refugee Protection Division before the day on which this section comes into force if, before that day, there has been no hearing before the Refugee Protection Division in respect of the claim or, if there has been a hearing, no substantive evidence has been heard.

(2) If a Personal Information Form, as defined in section 1 of the Refugee Protection Division Rules as they read immediately before the day on which this section comes into force, has not been submitted in respect of a claim that is referred to the Refugee Protection Division before that day and the time limit for submitting that Form has not expired, the claimant must submit that Form in accordance with those Rules, as they read on that day.

(3) If, before the day on which this section comes into force, no date has been fixed for the hearing before the Refugee Protection Division in respect of a claim that is referred to that Division before that day, an official of the Immigration and Refugee Board must fix the date on which the claimant is to attend the hearing.

34. A member who is assigned to the Refugee Protection Division under paragraph 159(1)(b) of the Immigration and Refugee Protection Act, as it read immediately before the day on which subsection 19(1) of this Act comes into force, may, if authorized by the Chairperson, remain assigned to that Division. However, the member may hear and make decisions only in respect of claims for refugee protection referred to that Division before that day.

67. Subsection 35(2) of the Act is replaced by the following:

(2) If the single member is unable to continue to hear the claim, the claim must be referred to another member of the Refugee Protection Division, and that member must commence a new hearing in accordance with the Immigration and Refugee Protection Act, as amended by this Act.

68. Sections 36 to 37.1 of the Act are replaced by the following:

36. (1) A decision made by the Refugee Protection Division in respect of a claim for refugee protection that was referred to that Division before the day on which this section comes into force is not subject to appeal to the Refugee Appeal Division.

(2) An application made under subsection 112(1) of the Immigration and Refugee Protection Act before the day on which this section comes into force is terminated if it was made before the expiry of the 12-month period referred to in paragraph 112(2)(b.1) of that Act, as enacted by subsection 15(3).

37. If a decision referred to in subsection 36(1) is set aside in a judicial review, the claim for refugee protection must be referred to a member of the Refugee Protection Division who is appointed under section 169.1 of the Immigration and Refugee Protection Act, as enacted by section 26, and is to be considered in accordance with that Act, as amended by this Act. However, the member’s decision is not subject to appeal to the Refugee Appeal Division.

37.1 Subject to regulations made under subsection 201.1 of the Immigration and Refugee Protection Act, an application for protection that is made before the day on which subsection 15(1) comes into force is to be considered in accordance with that Act, as amended by this Act.

69. Section 42 of the Act is replaced by the following:

42. (1) The provisions of this Act, except sections 3 to 6, 9, 13 and 14, subsection 15(3) and sections 28, 31, 32, 39 and 40, come into force on a day or days to be fixed by order of the Governor in Council.

(2) Subsection 15(3) comes into force on the day on which the Protecting Canada’s Immigration System Act receives royal assent.

MARINE TRANSPORTATION SECURITY ACT

70. (1) The portion of subsection 5(2) of the Marine Transportation Security Act before paragraph (a) is replaced by the following:

(2) Every person who contravenes a regulation made under subsection (1), other than a provision that sets out an obligation described in subsection (3), is guilty of an offence punishable on summary conviction and liable

(2) Section 5 of the Act is amended by adding the following after subsection (2):

(3) Every individual who contravenes, in a regulation made under subsection (1), a provision that sets out an obligation to provide information required to be reported before a vessel enters Canadian waters, is guilty of an offence and liable

(a) on conviction on indictment, to a fine of not more than $75,000 or to imprisonment for a term of not more than one year or to both; or

(b) on summary conviction, to a fine of not more than $50,000 or to imprisonment for a term of not more than six months or to both.

71. The Act is amended by adding the following after section 5:

5.1 (1) The Governor in Council may make regulations respecting the disclosure by the Minister to departments or agencies of the Government of Canada or members or agents of such departments or agencies, for the purpose of protecting the safety or security of Canada or Canadians, of information collected for the purposes of this Act in respect of any vessel referred to in subsection (2).

(2) The vessels in respect of which the information may be disclosed are those that, in the Minister’s opinion, may pose a threat to the safety or security of Canada or Canadians.

72. Section 17 of the Act is replaced by the following:

17. (1) An operator of a vessel that contravenes a direction is guilty of an offence and liable

(a) on conviction on indictment

(i) in the case of an individual, for a first offence, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year or to both, and, for any subsequent offence, to a fine of not more than $500,000 or to imprisonment for a term of not more than two years or to both, or

(ii) in the case of a corporation, for a first offence, to a fine of not more than $500,000 and, for any subsequent offence, to a fine of not more than $1,000,000; or

(b) on summary conviction

(i) in the case of an individual, for a first offence, to a fine of not more than $100,000 or to imprisonment for a term of not more than six months or to both, and, for any subsequent offence, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year or to both, or

(ii) in the case of a corporation, for a first offence, to a fine of not more than $250,000 and, for any subsequent offence, to a fine of not more than $500,000.

(2) A vessel that contravenes a direction is guilty of an offence and liable on summary conviction, for a first offence, to a fine of not more than $100,000 and, for any subsequent offence, to a fine of not more than $200,000.

73. (1) The portion of subsection 25(4) of the Act before paragraph (a) is replaced by the following:

(4) Every person who contravenes subsection (1) or (2) or any of paragraphs (3)(b) to (e) is guilty of an offence and liable

(2) Section 25 of the Act is amended by adding the following after subsection (4):

(5) Every person who contravenes paragraph (3)(a) is guilty of an offence and liable

(a) on conviction on indictment

(i) in the case of an individual, for a first offence, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year or to both, and, for any subsequent offence, to a fine of not more than $500,000 or to imprisonment for a term of not more than two years or to both, or

(ii) in the case of a corporation, for a first offence, to a fine of not more than $500,000 and, for any subsequent offence, to a fine of not more than $1,000,000; or

(b) on summary conviction

(i) in the case of an individual, for a first offence, to a fine of not more than $100,000 or to imprisonment for a term of not more than six months or to both, and, for any subsequent offence, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year or to both, or

(ii) in the case of a corporation, for a first offence, to a fine of not more than $250,000 and, for any subsequent offence, to a fine of not more than $500,000.

74. Section 26 of the English version of the Act is replaced by the following:

26. If an offence is committed or continued on more than one day, the person or vessel that committed it is liable to be convicted of a separate offence for each day on which the offence is committed or continued.

75. Section 28 of the Act is amended by adding the following after subsection (4):

(5) In a prosecution of a vessel for an offence under subsection 17(2), evidence that a direction was given to the master or to any person on board who is, or appears to be, in command or charge of the vessel, other than the pilot, is, in the absence of evidence to the contrary, proof that it was given to the vessel.

(6) In a prosecution of a vessel for an offence under subsection 17(2), the vessel is liable to be convicted of the offence if it is established that the offence was committed by the operator or by any person on board, other than a security inspector, whether or not the person on board has been identified, prosecuted or convicted.

76. Section 29 of the Act is replaced by the following:

29. A person shall not be convicted of an offence under this Act if they establish that they exercised all due diligence to prevent its commission, and a vessel shall not be convicted of an offence under subsection 17(2) if the person who committed the act or omission that constitutes the offence establishes that they exercised all due diligence to prevent its commission.

77. Subsection 31(1) of the Act is replaced by the following:

31. (1) If a fine imposed on a person or vessel convicted of an offence under this Act is not paid when required, the conviction may be registered in the superior court of the province in which the trial was held and, when registered, has the same force and effect, and all proceedings may be taken on it, as if the conviction were a judgment of that court obtained by Her Majesty in right of Canada against the convicted person or vessel for a debt in the amount of the fine.

DEPARTMENT OF CITIZENSHIP AND IMMIGRATION ACT

78. The Department of Citizenship and Immigration Act is amended by adding the following after section 5:

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.

TRANSITIONAL PROVISIONS

79. In sections 80 to 83.1, “the Act” means the Immigration and Refugee Protection Act.

80. Every request that is made under subsection 25(1) of the Act or for the purposes of subsection 25.2(1) of the Act, as the Act read immediately before the day on which this Act receives royal assent, is to be determined in accordance with the Act as it read immediately before that day.

81. (1) A designation may be made under subsection 20.1(1) of the Act, as enacted by section 10, in respect of an arrival in Canada — after March 31, 2009 but before the day on which this section comes into force — of a group of persons.

(2) For greater certainty and subject to subsection (3), if a designation that is authorized under subsection (1) is made, then the definition “designated foreign national” in subsection 2(1) of the Act, as enacted by section 2, and any provisions of the Act, as enacted by this Act, that provide for the effects of the designation apply.

(3) If a designation that is authorized under subsection (1) is made, then paragraph 55(3.1)(b) of the Act, as enacted by subsection 23(3), does not apply in respect of a person who, as a result of that designation, becomes a designated foreign national and who, on the day on which this section comes into force, is not in detention under Division 6 of Part 1 of the Act.

82. Paragraph 58(1)(c) of the Act, as enacted by subsection 26(1), applies in respect of a person who, on the day on which this section comes into force, is in detention under Division 6 of Part 1 of the Act.

83. (1) Subsection 99(3.1) of the Act, as enacted by section 33, does not apply in respect of a claim for refugee protection that is referred to the Refugee Protection Division before the day on which that section 33 comes into force.

(2) A person who makes a claim for refugee protection inside Canada other than at a port of entry before the day on which section 33 comes into force but whose claim is not referred to the Refugee Protection Division before that day must comply with the requirements of subsection 99(3.1) of the Act, as enacted by section 33. However, the person must provide the documents and information to the Refugee Protection Division rather than to an officer.

83.1 An application made under subsection 112(1) of the Act before the day on which this section comes into force is terminated if it was made before the expiry of the 12-month period referred to in paragraph 112(2)(c) of the Act, as enacted by subsection 38(1.1).

COORDINATING AMENDMENTS

84. (1) In this section, “other Act” means the Balanced Refugee Reform Act.

(2) On the first day on which both section 12 of the other Act and subsection 36(1) of this Act are in force, subsection 110(2) of the Immigration and Refugee Protection Act is amended by adding the following after paragraph (d):

(d.1) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a coun-try designated under subsection 109.1(1);

(3) On the first day on which both subsection 15(4) of the other Act and subsection 38(1.1) of this Act are in force, paragraph 112(2)(c) of the Immigration and Refugee Protection Act is replaced by the following:

(c) subject to subsection (2.1), less than 12 months, or, in the case of a person who is a national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since their last application for protection was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or the Minister.

(4) On the first day on which both section 26 of the other Act and section 48 of this Act are in force, subsection 153(1.1) of the Immigration and Refugee Protection Act is repealed.

(5) On the first day on which both section 12 of the other Act and section 49 of this Act are in force, subsection 161(1.1) of the Immigration and Refugee Protection Act is replaced by the following:

(1.1) The rules made under paragraph (1)(c) may distinguish among claimants for refugee protection who make their claims inside Canada on the basis of whether their claims are made at a port of entry or elsewhere or on the basis of whether they are nationals of a country that is, on the day on which their claim is made, a country designated under subsection 109.1(1).

COMING INTO FORCE

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.

(2) Sections 7 and 8, subsections 9(1) and 11(1), sections 17 to 22, subsection 23(1), sections 29, 31, 33 to 35, subsections 38(1) and (2) and sections 39 to 46, 49 to 51, 53, 54 and 70 to 77 come into force on a day or days to be fixed by order of the Governor in Council.