加拿大难民程序/44-53 - 身份丧失和遣返
< 加拿大难民程序
《移民和难民保护法》第 44-53 条规定
DIVISION 5 Loss of Status and Removal Report on Inadmissibility Preparation of report 44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. Referral or removal order (2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order. Conditions (3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order. Conditions — inadmissibility on grounds of security (4) If a report on inadmissibility on grounds of security is referred to the Immigration Division and the permanent resident or the foreign national who is the subject of the report is not detained, an officer shall also impose the prescribed conditions on the person. Duration of conditions (5) The prescribed conditions imposed under subsection (4) cease to apply only when (a) the person is detained; (b) the report on inadmissibility on grounds of security is withdrawn; (c) a final determination is made not to make a removal order against the person for inadmissibility on grounds of security; (d) the Minister makes a declaration under subsection 42.1(1) or (2) in relation to the person; or (e) a removal order is enforced against the person in accordance with the regulations.
Admissibility Hearing by the Immigration Division Decision 45 The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions: (a) recognize the right to enter Canada of a Canadian citizen within the meaning of the Citizenship Act, a person registered as an Indian under the Indian Act or a permanent resident; (b) grant permanent resident status or temporary resident status to a foreign national if it is satisfied that the foreign national meets the requirements of this Act; (c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or (d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.
Loss of Status Permanent resident 46 (1) A person loses permanent resident status (a) when they become a Canadian citizen; (b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28; (c) when a removal order made against them comes into force; (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); (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; or (e) on approval by an officer of their application to renounce their permanent resident status. Effect of renunciation (1.1) A person who loses their permanent resident status under paragraph (1)(e) becomes a temporary resident for a period of six months unless they make their application to renounce their permanent resident status at a port of entry or are not physically present in Canada on the day on which their application is approved. Effect of ceasing to be citizen (2) A person becomes a permanent resident if he or she ceases to be a citizen under (a) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, other than in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force; (b) subsection 10(1) of the Citizenship Act, other than in the circumstances set out in section 10.2 of that Act; or (c) subsection 10.1(3) of the Citizenship Act, other than in the circumstances set out in section 10.2 of that Act.
Temporary resident 47 A foreign national loses temporary resident status (a) at the end of the period for which they are authorized to remain in Canada; (b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or (c) on cancellation of their temporary resident permit.
Enforcement of Removal Orders Enforceable removal order 48 (1) A removal order is enforceable if it has come into force and is not stayed. Effect (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. In force 49 (1) A removal order comes into force on the latest of the following dates: (a) the day the removal order is made, if there is no right to appeal; (b) the day the appeal period expires, if there is a right to appeal and no appeal is made; and (c) the day of the final determination of the appeal, if an appeal is made. In force — claimants (2) Despite subsection (1), a removal order made with respect to a refugee protection claimant is conditional and comes into force on the latest of the following dates: (a) the day the claim is determined to be ineligible only under paragraph 101(1)(e); (b) in a case other than that set out in paragraph (a), seven days after the claim is determined to be ineligible; (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; (d) 15 days after notification that the claim is declared withdrawn or abandoned; and (e) 15 days after proceedings are terminated as a result of notice under paragraph 104(1)(c) or (d).
对于面临遣返的人来说，也可以通过申请遣返延期获得酌情救济。该权力基于 IRPA 第 48(2) 条，该条规定“[如果]遣返令可执行，则针对其发出该遣返令的外国国民必须立即离开加拿大，并且该遣返令必须尽快执行”。其理念是，如果执行遣返令会导致送回，则该遣返令就不可“执行”。在收到申请后，遣返官员必须考虑该个人是否提供了之前在 IRB 或 PRRA 申请中未评估的“新”证据，证明其如果被遣返将面临“死亡、极端制裁或不人道待遇”的风险。[1]尽管 IRPA 规定可执行的遣返令“必须尽快执行”，但现实中此类执行的进展却远远落后于立法目标；例如，在 2013 年和 2014 年，在 2012 年 12 月 15 日之后申请庇护的 14%（2,674 人）被遣返——这突显了申诉接受率与被遣返人数之间的差距。具体来说，在 2013 年，在难民申诉失败后被遣返的这些人中，只有一半多在一年内被遣返，政府 80% 的目标并未实现。[2]
Stay 50 A removal order is stayed (a) if a decision that was made in a judicial proceeding — at which the Minister shall be given the opportunity to make submissions — would be directly contravened by the enforcement of the removal order; (b) in the case of a foreign national sentenced to a term of imprisonment in Canada, until the sentence is completed; (c) for the duration of a stay imposed by the Immigration Appeal Division or any other court of competent jurisdiction; (d) for the duration of a stay under paragraph 114(1)(b); and (e) for the duration of a stay imposed by the Minister. Void — permanent residence 51 A removal order that has not been enforced becomes void if the foreign national becomes a permanent resident. No return without prescribed authorization 52 (1) If a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances. Return to Canada (2) If a removal order for which there is no right of appeal has been enforced and is subsequently set aside in a judicial review, the foreign national is entitled to return to Canada at the expense of the Minister.
Regulations 53 The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting (a) conditions that may or must be imposed, varied, or cancelled, individually or by class, on permanent residents and foreign nationals; (a.1) the form and manner in which an application to renounce permanent resident status must be made and the conditions that must be met before such an application may be approved; (b) the circumstances in which a removal order shall be made or confirmed against a permanent resident or a foreign national; (c) the circumstances in which status may be restored; (d) the circumstances in which a removal order may be stayed, including a stay imposed by the Minister and a stay that is not expressly provided for by this Act; (e) the effect and enforcement of removal orders, including the consideration of factors in the determination of when enforcement is possible; (f) the effect of a record suspension under the Criminal Records Act on the status of permanent residents and foreign nationals and removal orders made against them; and (g) the financial obligations that may be imposed with respect to a removal order.
- ↑ 科林·格雷，加拿大当代庇护制度，载厄尔维斯·马塔尼和丹妮丝·赫利合编，加拿大庇护与安置，热那亚大学出版社，<https://gup.unige.it/sites/gup.unige.it/files/pagine/Asylum_and_resettlement_in_Canada_ebook.pdf>，第 95 页。
- ↑ 斯蒂芬妮·J·西尔弗曼，加拿大移民拘留：概念与争议，加拿大移民/移民：从殖民化到难民安置，克里斯蒂娜·R·克拉克-卡扎克主编，ISBN 9780228022176，第 302 页。