加拿大难民程序/IRPR 第 159 条 - 安全第三国

IRPR 第 159 条 - 资格认定

该条例相关部分的文本如下

Determination of Eligibility of Claim

Working day
159 For the purposes of subsections 100(1) and (3) of the Act,
(a) a working day does not include Saturdays or holidays;
(b) a day that is not a working day is not included in the calculation of the three-day period; and
(c) the three-day period begins from the day on which the claim is received.

Definitions
159.1 The following definitions apply in this section and sections 159.2 to 159.7.
Agreement means the Agreement dated December 5, 2002 between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries. (Accord)
claimant means a claimant referred to in paragraph 101(1)(e) of the Act. (demandeur)
designated country means a country designated by section 159.3. (pays désigné)
family member, in respect of a claimant, means their spouse or common-law partner, their legal guardian, and any of the following persons, namely, their child, father, mother, brother, sister, grandfather, grandmother, grandchild, uncle, aunt, nephew or niece. (membre de la famille)
legal guardian, in respect of a claimant who has not attained the age of 18 years, means a person who has custody of the claimant or who is empowered to act on the claimant’s behalf by virtue of a court order or written agreement or by operation of law. (tuteur légal)
United States means the United States of America, but does not include Puerto Rico, the Virgin Islands, Guam or any other United States of America possession or territory. (États-Unis)

Non-application — former habitual residence
159.2 Paragraph 101(1)(e) of the Act does not apply to a claimant who is a stateless person who comes directly or indirectly to Canada from a designated country that is their country of former habitual residence.

Designation — United States
159.3 The United States is designated under paragraph 102(1)(a) of the Act as a country that complies with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture, and is a designated country for the purpose of the application of paragraph 101(1)(e) of the Act.

Non-application — ports of entry other than land ports of entry
159.4 (1) Paragraph 101(1)(e) of the Act does not apply to a claimant who seeks to enter Canada at
(a) a location that is not a port of entry;
(b) a port of entry that is a harbour port, including a ferry landing; or
(c) subject to subsection (2), a port of entry that is an airport.

In transit exception
(2) Paragraph 101(1)(e) of the Act applies to a claimant who has been ordered removed from the United States and who seeks to enter Canada at a port of entry that is an airport while they are in transit through Canada from the United States in the course of the enforcement of that order.

Non-application — claimants at land ports of entry
159.5 Paragraph 101(1)(e) of the Act does not apply if a claimant who seeks to enter Canada at a location other than one identified in paragraphs 159.4(1)(a) to (c) establishes, in accordance with subsection 100(4) of the Act, that
(a) a family member of the claimant is in Canada and is a Canadian citizen;
(b) a family member of the claimant is in Canada and is
 (i) a protected person within the meaning of subsection 95(2) of the Act,
 (ii) a permanent resident under the Act, or
 (iii) a person in favour of whom a removal order has been stayed in accordance with section 233;
(c) a family member of the claimant who has attained the age of 18 years is in Canada and has made a claim for refugee protection that has been referred to the Board for determination, unless
 (i) the claim has been withdrawn by the family member,
 (ii) the claim has been abandoned by the family member,
 (iii) the claim has been rejected, or
 (iv) any pending proceedings or proceedings respecting the claim have been terminated under subsection 104(2) of the Act or any decision respecting the claim has been nullified under that subsection;
(d) a family member of the claimant who has attained the age of 18 years is in Canada and is the holder of a work permit or study permit other than
 (i) a work permit that was issued under paragraph 206(b) or that has become invalid as a result of the application of section 209, or
 (ii) a study permit that has become invalid as a result of the application of section 222;
(e) the claimant is a person who
 (i) has not attained the age of 18 years and is not accompanied by their mother, father or legal guardian,
 (ii) has neither a spouse nor a common-law partner, and
 (iii) has neither a mother or father nor a legal guardian in Canada or the United States;
(f) the claimant is the holder of any of the following documents, excluding any document issued for the sole purpose of transit through Canada, namely,
 (i) a permanent resident visa or a temporary resident visa referred to in section 6 and subsection 7(1), respectively,
 (ii) a temporary resident permit issued under subsection 24(1) of the Act,
 (iii) a travel document referred to in subsection 31(3) of the Act,
 (iv) refugee travel papers issued by the Minister, or
 (v) a temporary travel document referred to in section 151;
(g) the claimant is a person
 (i) who may, under the Act or these Regulations, enter Canada without being required to hold a visa, and
 (ii) who would, if the claimant were entering the United States, be required to hold a visa; or
(h) the claimant is
 (i) a foreign national who is seeking to re-enter Canada in circumstances where they have been refused entry to the United States without having a refugee claim adjudicated there, or
 (ii) a permanent resident who has been ordered removed from the United States and is being returned to Canada.

Non-application — claimants at land ports of entry and in transit
159.6 Paragraph 101(1)(e) of the Act does not apply if a claimant establishes, in accordance with subsection 100(4) of the Act, that the claimant
(a) is charged in the United States with, or has been convicted there of, an offence that is punishable with the death penalty in the United States; or
(b) is charged in a country other than the United States with, or has been convicted there of, an offence that is punishable with the death penalty in that country.
(c) [Repealed, SOR/2009-210, s. 1]

Temporal operation
159.7 (1) For the purposes of paragraph 101(1)(e) of the Act, the application of all or part of sections 159.1 to 159.6 and this section is discontinued, in accordance with subsections (2) to (6), if
(a) a notice of suspension of the Agreement setting out the period of suspension is publicized broadly in the various regions of Canada by the Minister via information media and on the website of the Department;
(b) a notice of renewal of the suspension of the Agreement setting out the period of renewal of suspension is published in accordance with subsection (6);
(c) a notice of suspension of a part of the Agreement is issued by the Government of Canada and the Government of the United States; or
(d) a notice of termination of the Agreement is issued by the Government of Canada or the Government of the United States.

Paragraph (1)(a) — notice of suspension of Agreement
(2) Subject to subsection (3), if a notice of suspension of the Agreement is publicized under paragraph (1)(a), sections 159.2 to 159.6 are rendered inoperative for a period of up to three months that shall be set out in the notice, which period shall begin on the day after the day on which the notice is publicized.

Paragraph (1)(b) — notice of renewal of suspension of Agreement
(3) If a notice of renewal of the suspension of the Agreement is published under paragraph (1)(b), sections 159.2 to 159.6 are rendered inoperative for the further period of up to three months set out in the notice.

Paragraph (1)(c) — suspension of part of Agreement
(4) If a notice of suspension of part of the Agreement is issued under paragraph (1)(c), those provisions of these Regulations relating to the application of the Agreement that are referred to in the notice are rendered inoperative for a period that shall be set out in the notice. All other provisions of these Regulations continue to apply.

Paragraph (1)(d) — termination of Agreement
(5) If a notice of termination of the Agreement is issued under paragraph (1)(d), sections 159.1 to 159.6 and this section cease to have effect on the day set out in the notice.

Publication requirement — Canada Gazette
(6) Any notice referred to in paragraph (1)(b), (c) or (d) shall be published in the Canada Gazette, Part I, not less than seven days before the day on which the renewal, suspension in part or termination provided for in the notice is effective.

该法案第 102 条涉及索赔资格、安全第三国协议以及将国家列入名单的标准

IRPA 第 102 条的文本如下

Regulations
102 (1) The regulations may govern matters relating to the application of sections 100 and 101, may, for the purposes of this Act, define the terms used in those sections and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions
(a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture;
(b) making a list of those countries and amending it as necessary; and
(c) respecting the circumstances and criteria for the application of paragraph 101(1)(e).

Factors
(2) The following factors are to be considered in designating a country under paragraph (1)(a):
(a) whether the country is a party to the Refugee Convention and to the Convention Against Torture;
(b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture;
(c) its human rights record; and
(d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection.

Review
(3) The Governor in Council must ensure the continuing review of factors set out in subsection (2) with respect to each designated country.

有关更多详细信息和背景信息，请参阅：加拿大难民程序/100-102 - 资格认定审查#IRPA 第 102 条：条例和安全第三国协议。

安全第三国协议文本

上述条例规定实施了加拿大法律中的《安全第三国协议》文本；请参阅此引文以获取加拿大与美国之间协议本身的文本 以及 2022 年修订该协议的补充议定书。 补充议定书于 2023 年 3 月生效，当时加拿大和美国宣布了对《STCA》的补充议定书，将扩大其范围以适用于整个陆地边界，而不仅仅是官方入境口岸。

另请参阅：加拿大难民程序/难民程序解释原则#国家之间责任分担和负担分担是《难民公约》的基本原则 和 加拿大难民程序/难民程序解释原则#该法案应以防止出现“轨道上的难民”的方式进行解释。

《安全第三国协议》的事实背景

安全第三国协议运作的政治背景是，加拿大收到的难民索赔数量按人均计算远远高于美国。美国和加拿大都是受欢迎的庇护寻求者目的地，对难民身份认定进行相对大规模的审查。美国一直是接收庇护申请数量最多的国家；2012 年，美国接收了全球总申请数量的 17.4%。加拿大往往位列前五名接收国；2008 年，加拿大是第二大受欢迎的国家，2012 年排名第六，占全球申请的 4.3%。显而易见，加拿大的人均庇护寻求者数量远远高于美国 - 例如，在 2006 年至 2010 年的五年期间，加拿大每 236 名居民就收到一份庇护申请；在美国，这个比例是每 1200 名居民收到一份庇护申请。 此外，加拿大的许多索赔人到达加拿大之前都在美国旅行过。例如，从 1995 年到 2001 年，加拿大大约三分之一的难民索赔来自或途经美国的人。

有关安全第三国的立法规定已于 1988 年成为《移民法》的一部分。当时，该规定已颁布，但没有列出任何国家。有关更多详细信息，请参阅：加拿大难民程序/加拿大难民程序历史#IRPA 后措施。

“直接遣返政策”

请参阅：加拿大难民程序/IRPR 第 28-52 条 - 审查实施#IRPR 第 41 条 - 直接遣返。

第 159.3 条：指定国家，前提是它们除其他事项外，遵守《难民公约》第 33 条

《难民公约》第 33(1) 条规定

任何缔约国均不得以任何方式将难民驱逐或遣返（“拒返”）到其生命或自由因其种族、宗教、国籍、属于某一特定社会群体或政治见解而受到威胁的领土边界。

第 33(1) 条长期以来一直被解释为不仅禁止将难民直接遣返到他们害怕受到迫害的国家，还禁止通过第三国间接遣返。 请参阅：加拿大难民程序/难民程序解释原则#该法案应以防止出现“轨道上的难民”的方式进行解释。

《安全第三国协议》与美国的宪法合法性

《安全第三国协议》制度的宪法合法性在加拿大法院多次受到挑战。所有对该制度的挑战都被驳回。前两次挑战因程序原因而被驳回 - 分别在 1992 年由加拿大最高法院 和 2008 年由联邦上诉法院 驳回。第三次挑战导致加拿大最高法院在 2023 年部分维持了该制度的宪法合法性，同时将针对该挑战的基于性别的部分交回联邦法院以供将来审理。