Canadian Refugee Procedure/IRPR ss. 28-52 - Conduct of Examination

IRPR ss. 28-52
The text of the relevant sections of the regulation read: DIVISION 3 Conduct of Examination General Examination

28 For the purposes of subsection 15(1) of the Act, a person makes an application in accordance with the Act by

(a) submitting an application in writing;

(b) seeking to enter Canada;

(c) seeking to transit through Canada as provided in section 35; or

(d) making a claim for refugee protection.

Medical examination

29 For the purposes of paragraph 16(2)(b) of the Act, a medical examination includes any or all of the following:

(a) physical examination;

(b) mental examination;

(c) review of past medical history;

(d) laboratory test;

(e) diagnostic test; and

(f) medical assessment of records respecting the applicant.

Exemptions from medical examination requirement

30 (1) For the purposes of paragraph 16(2)(b) of the Act, the following foreign nationals are exempt from the requirement to submit to a medical examination:

(a) foreign nationals other than

(i) subject to paragraph (g), foreign nationals who are applying for a permanent resident visa or applying to remain in Canada as a permanent resident, as well as their family members, whether accompanying or not,

(ii) foreign nationals who are seeking to work in Canada in an occupation in which the protection of public health is essential,

(iii) foreign nationals who

(A) are seeking to enter Canada or applying for renewal of their work or study permit or authorization to remain in Canada as a temporary resident for a period in excess of six consecutive months, including an actual or proposed period of absence from Canada of less than 14 days, and

(B) have resided or stayed for a period of six consecutive months, at any time during the one-year period immediately preceding the date that they sought entry or made their application, in an area that the Minister determines, after consultation with the Minister of Health, has a higher incidence of serious communicable disease than Canada,

(iv) foreign nationals who an officer, or the Immigration Division, has reasonable grounds to believe are inadmissible under subsection 38(1) of the Act,

(v) foreign nationals who claim refugee protection in Canada, and

(vi) foreign nationals who are seeking to enter or remain in Canada and who may apply to the Minister for protection under subsection 112(1) of the Act, other than foreign nationals who have not left Canada since their claim for refugee protection or application for protection was rejected;

(b) a person described in paragraph 186(b) who is entering or is in Canada to carry out official duties, unless they seek to engage or continue in secondary employment in Canada;

(c) a family member of a person described in paragraph 186(b), unless that family member seeks to engage or continue in employment in Canada;

(d) a member of the armed forces of a country that is a designated state as defined in the Visiting Forces Act, who is entering or is in Canada to carry out official duties, other than a person who has been designated as a civilian component of those armed forces, unless that member seeks to engage or continue in secondary employment in Canada;

(e) a family member of a protected person, if the family member is not included in the protected person’s application to remain in Canada as a permanent resident; and

(f) a non-accompanying family member of a foreign national who has applied for refugee protection outside Canada.

(g) [Repealed, SOR/2017-78, s. 3]

Subsequent examination

(2) Every foreign national who has undergone a medical examination as required under paragraph 16(2)(b) of the Act must submit to a new medical examination before entering Canada if, after being authorized to enter and remain in Canada, they have resided or stayed for a total period in excess of six months in an area that the Minister determines, after consultation with the Minister of Health, has a higher incidence of serious communicable disease than Canada.

Medical certificate

(3) Every foreign national who must submit to a medical examination, as required under paragraph 16(2)(b) of the Act, and who seeks to enter Canada must hold a medical certificate — based on the most recent medical examination to which they were required to submit under that paragraph and which took place within the previous 12 months — that indicates that their health condition is not likely to be a danger to public health or public safety and, unless subsection 38(2) of the Act applies, is not reasonably expected to cause excessive demand.

SOR/2004-167, s. 9SOR/2010-78, s. 1SOR/2012-154, s. 3SOR/2017-78, s. 3 Public health

31 Before opining whether a foreign national’s health condition is likely to be a danger to public health, an officer who is assessing the foreign national’s health condition shall consider

(a) any report made by a health practitioner or medical laboratory with respect to the foreign national;

(b) the communicability of any disease that the foreign national is affected by or carries; and

(c) the impact that the disease could have on other persons living in Canada.

SOR/2022-39, s. 3 Conditions

32 In addition to the conditions that are imposed on a foreign national who makes an application as a member of a class, an officer may impose, vary or cancel the following conditions in respect of any foreign national who is required to submit to a medical examination under paragraph 16(2)(b) of the Act:

(a) to report at the specified times and places for medical examination, surveillance or treatment; and

(b) to provide proof, at the specified times and places, of compliance with the conditions imposed.

SOR/2012-154, s. 4 Public safety

33 Before opining whether a foreign national’s health condition is likely to be a danger to public safety, an officer who is assessing the foreign national’s health condition shall consider

(a) any reports made by a health practitioner or medical laboratory with respect to the foreign national; and

(b) the risk of a sudden incapacity or of unpredictable or violent behaviour of the foreign national that would create a danger to the health or safety of persons living in Canada.

SOR/2022-39, s. 4 Excessive demand

34 (1) An officer who is assessing a foreign national’s health condition shall analyze all relevant medical factors that apply to a determination of whether the foreign national’s health condition might reasonably be expected to cause excessive demand and shall prepare an opinion based on their analysis.

Medical factors

(2) Medical factors referred to in subsection (1) include

(a) any reports made by a health practitioner or medical laboratory with respect to the foreign national;

(b) any condition identified by a medical examination required under paragraph 16(2)(b) of the Act;

(c) the availability of and anticipated costs for health services and social services arising from the foreign national’s health status; and

(d) a consideration of whether a mitigation plan, if any, submitted by the foreign national would provide for appropriate treatment for the health condition and would be permitted under the rules regulating the delivery of health care in Canada.

Non-medical factors

(3) The officer shall not consider non-medical factors, including

(a) the foreign national’s intent and financial ability to mitigate any excessive demand; and

(b) the feasibility of a mitigation plan, if any, submitted by the foreign national.

SOR/2022-39, s. 5 Transit

35 (1) Subject to subsection (2), the following persons are not seeking to enter Canada but are making an application under subsection 15(1) of the Act to transit through Canada:

(a) in airports where there are United States’ in-transit preclearance facilities, in-transit preclearance passengers; and

(b) in any airport, passengers who are arriving from any country and who are transiting to a country other than Canada and remain in a sterile transit area.

Obligatory examination

(2) Any person seeking to leave a sterile transit area must appear immediately for examination.

Actions not constituting a complete examination

36 An inspection carried out aboard a means of transportation bringing persons to Canada or the questioning of persons embarking on or disembarking from a means of transportation, or the examination of any record or document respecting such persons before they appear for examination at a port of entry, is part of an examination but does not constitute a complete examination.

End of examination

37 (1) Subject to subsection (2), the examination of a person who seeks to enter Canada, or who makes an application to transit through Canada, ends only when

(a) a determination is made that the person has a right to enter Canada, or is authorized to enter Canada as a temporary resident or permanent resident, the person is authorized to leave the port of entry at which the examination takes place and the person leaves the port of entry;

(b) if the person is an in-transit passenger, the person departs from Canada;

(c) the person is authorized to withdraw their application to enter Canada and an officer verifies their departure from Canada; or

(d) a decision in respect of the person is made under subsection 44(2) of the Act and the person leaves the port of entry.

End of examination — claim for refugee protection

(2) The examination of a person who makes a claim for refugee protection at a port of entry or inside Canada other than at a port of entry ends when the later of the following occurs:

(a) an officer determines that their claim is ineligible under section 101 of the Act or the Refugee Protection Division accepts or rejects their claim under section 107 of the Act;

(b) a decision in respect of the person is made under subsection 44(2) of the Act and, in the case of a claim made at a port of entry, the person leaves the port of entry.

SOR/2004-167, s. 10(F)SOR/2016-136, s. 3(F)SOR/2018-60, s. 1 Alternative Means of Examination Means

38 For the purposes of subsection 18(1) of the Act, the following persons may — unless otherwise directed by an officer — be examined by the means indicated as alternative to appearing for an examination by an officer at a port of entry:

(a) persons who have previously been examined and hold an authorization issued under section 11.1 of the Customs Act, in which case examination is effected by the presentation of the authorization by those persons at a port of entry;

(b) persons who are seeking to enter Canada at a port of entry where facilities are in place for automatic screening of persons seeking to enter Canada, in which case examination is performed by automatic screening;

(c) persons who leave Canada and proceed directly to a marine installation or structure to which the Oceans Act applies, and who return directly to Canada from the installation or structure without entering the territorial waters of a foreign state, in which case examination is conducted by an officer by telephone or other means of telecommunication;

(d) members of a crew of a ship that transports oil or liquid natural gas and that docks at a marine installation or structure to which the Oceans Act applies, for the purpose of loading oil or liquid natural gas, in which case examination is conducted by an officer by telephone or other means of telecommunication;

(e) members of a crew of a ship registered in a foreign country, other than members of a crew referred to in paragraph (d), in which case examination is conducted by an officer by telephone or other means of telecommunication;

(f) members of a crew of a ship registered in Canada, in which case examination is conducted by an officer by telephone or other means of telecommunication;

(g) citizens or permanent residents of Canada or the United States who are seeking to enter Canada at remote locations where no officer is assigned or where there are no means by which the persons may report for examination, in which case examination is conducted by an officer by telephone or other means of telecommunication; and

(h) citizens or permanent residents of Canada or the United States who seek to enter Canada at places, other than a port of entry, where no officer is assigned, in which case examination is conducted by an officer by telephone or other means of telecommunication.

Permitted Entry Entry permitted

39 An officer shall allow the following persons to enter Canada following an examination:

(a) persons who have been returned to Canada as a result of a refusal of another country to allow them entry after they were removed from or otherwise left Canada after a removal order was made against them;

(b) persons returning to Canada under a transfer order made under the Mutual Legal Assistance in Criminal Matters Act and who, immediately before being transferred to a foreign state under the transfer order, were subject to an unenforced removal order; and

(c) persons who are in possession of refugee travel papers issued to them by the Minister that are valid for return to Canada.

SOR/2015-46, s. 1 Conduct of Examination Measures Direction to leave

40 (1) Except in the case of protected persons within the meaning of subsection 95(2) of the Act and refugee protection claimants, an officer who is unable to examine a person who is seeking to enter Canada at a port of entry shall, in writing, direct the person to leave Canada.

Service

(2) A copy of the direction shall be served on the person as well as on the owner or person in control of the means of transportation, if any, that brought the person to Canada.

Ceasing to have effect

(3) The direction ceases to have effect when the person appears again at a port of entry and an officer proceeds to examine the person.

IRPR s. 41 - Direct back
Direct back 41 Unless an authorization has been given under section 23 of the Act, an officer who examines a foreign national who is seeking to enter Canada from the United States shall direct them to return temporarily to the United States if (a) no officer is able to complete an examination; (b) the Minister is not available to consider, under subsection 44(2) of the Act, a report prepared with respect to the person; (c) an admissibility hearing cannot be held by the Immigration Division; or (d) the foreign national is prohibited from entering Canada by an order or regulation made by the Governor in Council under the Emergencies Act or the Quarantine Act.

Commentary
Canada and the US have both employed what is termed the "direct back policy", which is related to, but distinct from the Safe Third Country Agreement. The "direct back policy” refers to the process whereby an asylum seeker approaches a port of entry at a time when border officials are unable to process the claim and the asylum seeker is returned to the other country (primarily, returned to the U.S. from Canada ) after having been given a scheduled time to return for an interview. Prior to 21 May 1986, claimants arriving from the United States to claim refugee status remained temporarily in the United States until a Canadian immigration inquiry could be scheduled. On 21 May 1986, a blanket admission policy was introduced, allowing individuals to wait inside Canada for determination of their claim, or to receive an automatic permit to remain and work, depending on their country of origin. From then on, until 2003, the direct back policy was used only in exceptional cases. However, it was used enough that policies considered its implications, for example a 1989 pamphlet entitled The backlog clearance process: Refugee claims made in Canada before January 1, 1989 described the Refugee Claimants Designated Class Regulations as applying to persons who were in Canada before January 1, 1989 or, prior to that date, must have been directed back to the United States to await an immigration inquiry scheduled after January 1, 1989. In 2003, after the Safe Third Country Agreement was signed, but before it was implemented, the direct back policy was used as there was a large and sudden influx of persons arriving from the United States who wanted to lodge their claims in Canada before the entry into force of the Safe Third Country Agreement. The procedure prompted a complaint in 2004 by several national and international organizations to the Inter-American Commission on Human Rights. The UNHCR subsequently criticized this policy on the basis that many claimants were not allowed to subsequently re-enter Canada to attend their scheduled interviews, writing in a report on the subject that "This has been especially problematic for asylum-seekers directed back from Canada to the United States, as a number were detained in the United States and unable to attend their scheduled interviews." Canadian authorities stated that they largely phased out the use of “direct back policies” as of August 2006, and going forward, they would be used only in exceptional cases. See the 2007 amendments to Canadian policy manuals for details regarding the current parameters of Canada's direct back policy. The “direct back policy” was revived again during the Covid-19 pandemic as part of the implementation of an Order-in-Council restricting travel into Canada.

See also: Canadian Refugee Procedure/IRPR s. 159 - Safe Third Countries.

IRPR s. 42 - Withdrawing application
Withdrawing application 42 (1) Subject to subsection (2), an officer who examines a foreign national who is seeking to enter Canada and who has indicated that they want to withdraw their application to enter Canada shall allow the foreign national to withdraw their application and leave Canada.

Exception — report

(2) If a report is being prepared or has been prepared under subsection 44(1) of the Act in respect of a foreign national who indicates that they want to withdraw their application to enter Canada, the officer shall not allow the foreign national to withdraw their application or leave Canada unless the Minister decides either not to make a removal order or not to refer the report to the Immigration Division for an admissibility hearing.

Obligation to confirm departure

(3) A foreign national who is allowed to withdraw their application to enter Canada must appear without delay before an officer at a port of entry to confirm their departure from Canada.

SOR/2018-5, s. 1 Application of Section 23 of the Act Conditions

43 (1) An officer must impose the following conditions on every person authorized to enter Canada under section 23 of the Act:

(a) to report in person at the time and place specified for the completion of the examination or the admissibility hearing;

(b) to not engage in any work in Canada;

(c) to not attend any educational institution in Canada;

(d) to report in person to an officer at a port of entry if the person withdraws their application to enter Canada; and

(e) to comply with all requirements imposed on them by an order or regulation made under the Emergencies Act or the Quarantine Act.

Effect of authorization to enter

(2) A foreign national who is authorized to enter Canada under section 23 of the Act does not, by reason only of that authorization, become a temporary resident or a permanent resident.

SOR/2020-91, s. 3 Obligation to Appear at an Admissibility Hearing Class

44 (1) The class of persons who are the subject of a report referred for an admissibility hearing under subsection 44(2) of the Act is prescribed as a class of persons.

Members

(2) The members of the class of persons who are the subject of a report referred for an admissibility hearing under subsection 44(2) of the Act are the persons who are the subject of such a report.

Obligation

(3) Every member of the class prescribed under subsection (1) must appear at their admissibility hearing before the Immigration Division if they are given notice of the hearing by the Division.

Deposits or Guarantees Deposit or guarantee required on entry

45 (1) An officer can require, in respect of a person or group of persons seeking to enter Canada, the payment of a deposit or the posting of a guarantee, or both, to the Minister for compliance with any conditions imposed.

Amount

(2) The amount of the deposit or guarantee is fixed by an officer on the basis of

(a) the financial resources of the person or group;

(b) the obligations that result from the conditions imposed;

(c) the costs that would likely be incurred to locate and arrest the person or group, to detain them, to hold an admissibility hearing and to remove them from Canada; and

(d) in the case of a guarantee, the costs that would likely be incurred to enforce it.

SOR/2004-167, s. 11(F) Application

46 Sections 47 to 49 apply to deposits and guarantees required under subsections 44(3), 56(1), 58(3) and 58.1(3) of the Act and section 45 of these Regulations.

SOR/2020-92, s. 1 General requirements

47 (1) A person who pays a deposit or posts a guarantee

(a) must not have signed or co-signed another guarantee that is in default; and

(b) must have the capacity to contract in the province where the deposit is paid or the guarantee is posted.

Requirements if guarantee posted

(2) A person who posts a guarantee must

(a) be a Canadian citizen or a permanent resident, physically present and residing in Canada;

(b) be able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed; and

(c) present to an officer evidence of their ability to fulfil the obligation arising from the guarantee.

Money illegally obtained

(3) If an officer has reasonable grounds to believe that a sum of money offered by a person as a deposit was not legally obtained, or that a sum of money that a person may be obliged to pay under a guarantee would not be legally obtained, the officer shall not allow that person to pay a deposit or post a guarantee.

Factors to consider

(4) An officer, the Immigration Division or the Minister must consider the following factors in assessing whether the person who posts a guarantee has the ability to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed:

(a) their relationship to the person or group of persons in respect of whom the guarantee is required;

(b) their financial situation;

(c) any previous history posting a guarantee;

(d) their criminal record; and

(e) any other relevant factor in determining their ability to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed.

SOR/2004-167, s. 12(F)SOR/2020-92, s. 2 Conditions if guarantee posted

48 (1) In addition to any other conditions that are imposed, the following conditions are imposed on a person or group of persons in respect of whom a guarantee is required:

(a) to provide the Department or the Canada Border Services Agency, depending on which one requires the information, with the address of the person posting the guarantee and to advise the Department or the Canada Border Services Agency, as the case may be, before any change in that address; and

(b) to present themself or themselves at the time and place that an officer or the Immigration Division requires them to appear to comply with any obligation imposed on them under the Act.

Conditions if deposit paid

(2) In addition to any other conditions that are imposed, the following conditions are imposed on a person or group of persons in respect of whom a deposit is required:

(a) to provide the Department or the Canada Border Services Agency, depending on which one requires the information, with their address and to advise the Department or the Canada Border Services Agency, as the case may be, before any change in that address; and

(b) to present themself or themselves at the time and place that an officer or the Immigration Division requires them to appear to comply with any obligation imposed on them under the Act.

SOR/2010-195, s. 1(F)SOR/2017-214, s. 2 Acknowledgment of consequences of failure to comply with conditions

49 (1) A person who pays a deposit or posts a guarantee must acknowledge in writing

(a) that they have been informed of the conditions imposed; and

(b) that they have been informed that non-compliance with any conditions imposed will result in the forfeiture of the deposit or enforcement of the guarantee.

Receipt

(2) An officer shall issue a receipt for the deposit or a copy of the guarantee, and a copy of the conditions imposed.

Return of deposit

(3) If an officer determines that the person or group of persons in respect of whom the deposit was required has complied with the conditions imposed, the deposit shall be returned.

Breach of condition

(4) A sum of money deposited is forfeited, or a guarantee posted becomes enforceable, on the failure of the person or any member of the group of persons in respect of whom the deposit or guarantee was required to comply with a condition imposed.

IRPR s. 50 - Documents Required
Documents Required

Documents — permanent residents 50 (1) In addition to the permanent resident visa required of a foreign national who is a member of a class referred to in subsection 70(2), a foreign national seeking to become a permanent resident must hold (a) a passport, other than a diplomatic, official or similar passport, that was issued by the country of which the foreign national is a citizen or national; (b) a travel document that was issued by the country of which the foreign national is a citizen or national; (c) an identity or travel document that was issued by a country to non-national residents, refugees or stateless persons who are unable to obtain a passport or other travel document from their country of citizenship or nationality or who have no country of citizenship or nationality; (d) a travel document that was issued by the International Committee of the Red Cross in Geneva, Switzerland, to enable and facilitate emigration; (e) a passport or travel document that was issued by the Palestinian Authority; (f) an exit visa that was issued by the Government of the Union of Soviet Socialist Republics to its citizens who were compelled to relinquish their Soviet nationality in order to emigrate from that country; (g) a passport issued by the United Kingdom to a British National (Overseas), as a person born, naturalized or registered in Hong Kong; (h) a passport issued by the Hong Kong Special Administrative Region of the People’s Republic of China; or (i) a passport issued by the United Kingdom to a British Subject.

Exception — protected persons (2) Subsection (1) does not apply to a person who is a protected person within the meaning of subsection 95(2) of the Act and holds a permanent resident visa when it is not possible for the person to obtain a passport or an identity or travel document referred to in subsection (1).

IRPR s. 50.1 - Designation of unreliable travel documents
Designation of unreliable travel documents 50.1 (1) The Minister may designate, individually or by class, passports or travel or identity documents that do not constitute reliable proof of identity or nationality.

Factors (2) The Minister shall consider the following factors in determining whether to designate any passport or travel or identity document, or class of passport or travel or identity document, as not being reliable proof of identity or nationality: (a) the adequacy of security features incorporated into the passport or document for the purpose of deterring its misuse or unauthorized alteration, reproduction or issuance; and (b) information respecting the security or integrity of the process leading to the issuance of the passport or document.

Effect of designation (3) A passport or travel or identity document that has been designated under subsection (1) is not a passport or travel or identity document for the purpose of subsection 50(1) or 52(1).

Public notice (4) The Minister shall make available to the public a list of all passports or travel or identity documents designated under subsection (1).

Commentary
See: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided.

See also the following list of unrelaible travel documents: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/bulletins-2010/190-march-12-2010.html.

IRPR s. 51 - Examination - permanent residents
Examination — permanent residents

51 A foreign national who holds a permanent resident visa and is seeking to become a permanent resident must, at the time of their examination,

(a) inform the officer if

(i) the foreign national has become a spouse or common-law partner or has ceased to be a spouse, common-law partner or conjugal partner after the visa was issued, or

(ii) material facts relevant to the issuance of the visa have changed since the visa was issued or were not divulged when it was issued; and

(b) establish that they and their family members, whether accompanying or not, meet the requirements of the Act and these Regulations.

SOR/2008-253, s. 2 Documents — temporary residents

52 (1) In addition to the other requirements of these Regulations, a foreign national seeking to become a temporary resident must hold one of the following documents that is valid for the period authorized for their stay:

(a) a passport that was issued by the country of which the foreign national is a citizen or national, that does not prohibit travel to Canada and that the foreign national may use to enter the country of issue;

(b) a travel document that was issued by the country of which the foreign national is a citizen or national, that does not prohibit travel to Canada and that the foreign national may use to enter the country of issue;

(c) an identity or travel document that was issued by a country, that does not prohibit travel to Canada, that the foreign national may use to enter the country of issue and that is of the type issued by that country to non-national residents, refugees or stateless persons who are unable to obtain a passport or other travel document from their country of citizenship or nationality or who have no country of citizenship or nationality;

(d) a laissez-passer that was issued by the United Nations;

(e) a passport or travel document that was issued by the Palestinian Authority;

(f) a document that was issued by the Organization of American States and is entitled “Official Travel Document”;

(g) a passport issued by the United Kingdom to a British Overseas Citizen;

(h) a passport issued by the United Kingdom to a British National (Overseas), as a person born, naturalized or registered in Hong Kong;

(i) a passport issued by the Hong Kong Special Administrative Region of the People’s Republic of China; or

(j) a passport issued by the United Kingdom to a British Subject.

(1.1) [Repealed, SOR/2003-260, s. 1]

Exceptions

(2) Subsection (1) does not apply to

(a) citizens of the United States;

(b) persons seeking to enter Canada from the United States or St. Pierre and Miquelon who have been lawfully admitted to the United States for permanent residence;

(c) residents of Greenland seeking to enter Canada from Greenland;

(d) persons seeking to enter Canada from St. Pierre and Miquelon who are citizens of France and residents of St. Pierre and Miquelon;

(e) members of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act who are seeking entry in order to carry out official duties, other than persons who have been designated as a civilian component of those armed forces;

(f) persons who are seeking to enter Canada as, or in order to become, members of a crew of a means of air transportation and who hold an airline flight crew licence or crew member certificate issued in accordance with International Civil Aviation Organization specifications; or

(g) persons seeking to enter Canada as members of a crew who hold a seafarer’s identity document issued under International Labour Organization conventions and are members of the crew of the vessel that carries them to Canada.

(3) [Repealed, SOR/2010-54, s. 3]

SOR/2003-197, s. 1SOR/2003-260, s. 1SOR/2004-167, s. 14(F)SOR/2010-54, s. 3SOR/2010-195, s. 2(F)SOR/2011-125, s. 2