Canadian Refugee Procedure, IRPR ss. 138-151.1 - Convention Refugees Abroad, Humanitarian-protected Persons Abroad and P

IRPR ss. 138-151.1

The text of the relevant sections of the regulation reads:

DIVISION 1
Convention Refugees Abroad, Humanitarian-protected Persons Abroad and Protected Temporary Residents

Interpretation

Definitions
138 The definitions in this section apply in this Division and in Division 2.

group means
(a) five or more Canadian citizens or permanent residents, each of whom is at least 18 years of age, who are acting together for the purpose of sponsoring a Convention refugee or a person in similar circumstances; or
(b) one or more Canadian citizens or permanent residents, each of whom is at least 18 years of age, and a corporation or unincorporated organization or association referred to in subsection 13(2) of the Act, acting together for the purpose of sponsoring a Convention refugee or a person in similar circumstances. (groupe)

referral organization means
(a) the United Nations High Commissioner for Refugees; or
(b) any organization with which the Minister has entered into a memorandum of understanding under section 143. (organisation de recommandation)

sponsor means
(a) a group, a corporation or an unincorporated organization or association referred to in subsection 13(2) of the Act, or any combination of them, that is acting for the purpose of sponsoring a Convention refugee or a person in similar circumstances; or
(b) for the purposes of section 158, a sponsor as defined in section 1 of the Québec Immigration Regulation, CQLR, c. I-0.2.1, r. 3, as amended from time to time. (répondant)

undertaking means an undertaking in writing to the Minister to provide resettlement assistance, lodging and other basic necessities in Canada for a member of a class prescribed by this Division, the member’s accompanying family members and any of the member’s non-accompanying family members who meet the requirements of section 141, for the period determined in accordance with subsections 154(2) and (3). (engagement)

urgent need of protection means, in respect of a member of the Convention refugee abroad or the country of asylum class, that their life, liberty or physical safety is under immediate threat and, if not protected, the person is likely to be
(a) killed;
(b) subjected to violence, torture, sexual assault or arbitrary imprisonment; or
(c) returned to their country of nationality or of their former habitual residence. (besoin urgent de protection)

vulnerable means, in respect of a Convention refugee or a person in similar circumstances, that the person has a greater need of protection than other applicants for protection abroad because of the person’s particular circumstances that give rise to a heightened risk to their physical safety. (vulnérable)

General

General requirements
139 (1) A permanent resident visa shall be issued to a foreign national in need of refugee protection, and their accompanying family members, if following an examination it is established that
(a) the foreign national is outside Canada;
(b) the foreign national has submitted an application for a permanent resident visa under this Division in accordance with paragraphs 10(1)(a) to (c) and (2)(c.1) to (d) and sections 140.1 to 140.3;
(c) the foreign national is seeking to come to Canada to establish permanent residence;
(d) the foreign national is a person in respect of whom there is no reasonable prospect, within a reasonable period, of a durable solution in a country other than Canada, namely
(i) voluntary repatriation or resettlement in their country of nationality or habitual residence, or
(ii) resettlement or an offer of resettlement in another country;
(e) the foreign national is a member of one of the classes prescribed by this Division;
(f) one of the following is the case, namely
(i) the sponsor’s sponsorship application for the foreign national and their family members included in the application for protection has been approved under these Regulations,
(ii) in the case of a member of the Convention refugee abroad class, financial assistance in the form of funds from a governmental resettlement assistance program is available in Canada for the foreign national and their family members included in the application for protection, or
(iii) the foreign national has sufficient financial resources to provide for the lodging, care and maintenance, and for the resettlement in Canada, of themself and their family members included in the application for protection;
(g) if the foreign national intends to reside in a province other than the Province of Quebec, the foreign national and their family members included in the application for protection will be able to become successfully established in Canada, taking into account the following factors:
(i) their resourcefulness and other similar qualities that assist in integration in a new society,
(ii) the presence of their relatives, including the relatives of a spouse or a common-law partner, or their sponsor in the expected community of resettlement,
(iii) their potential for employment in Canada, given their education, work experience and skills, and
(iv) their ability to learn to communicate in one of the official languages of Canada;
(h) if the foreign national intends to reside in the Province of Quebec, the competent authority of that Province is of the opinion that the foreign national and their family members included in the application for protection meet the selection criteria of the Province; and
(i) subject to subsections (3) and (4), the foreign national and their family members included in the application for protection are not inadmissible.

Exception
(2) Paragraph (1)(g) does not apply to a foreign national, or their family members included in the application for protection, who has been determined by an officer to be vulnerable or in urgent need of protection.

Financial inadmissibility — exemption
(3) A foreign national who is a member of a class prescribed by this Division, and meets the applicable requirements of this Division, is exempted from the application of section 39 of the Act.

Health grounds — exception
(4) A foreign national who is a member of a class prescribed by this Division, and meets the applicable requirements of this Division, is exempted from the application of paragraph 38(1)(c) of the Act.

IRPR s. 140 - Class of family members

Class of family members
140 Family members of an applicant who is determined to be a member of a class under this Division are members of the applicant’s class.

Family members of an applicant are members of the applicant's class

Section 140 of the IRPR provides that family members are members of the same class as a person who is determined to be a refugee, but does not state that such family members are deemed to have been determined to be refugees.[1] This is because applicants who are members of the Convention Refugees Abroad class, say, only by virtue of being family members are not conferred refugee protection by virtue of a determination under IRPA paragraph 95(1)(a) because their risks never were assessed independently against IRPA section 96.[2]

IRPR s. 140.1 - Application

Application
140.1 An application for a permanent resident visa submitted by a foreign national under this Division shall indicate that the foreign national is outside Canada and is making a claim for refugee protection and shall

(a) contain the name, address and country of birth of the applicant and of all their accompanying family members;

(b) contain the name and country of birth of all the applicant’s non-accompanying family members; and

(c) indicate whether the applicant or any of their accompanying or non-accompanying family members is the spouse, common-law partner or conjugal partner of another person.

SOR/2012-225, s. 5
Sponsorship of foreign national — requirement to attach applications

140.2 (1) If the foreign national making an application for a permanent resident visa under this Division is being sponsored, the application for a permanent resident visa shall

(a) be accompanied by a sponsorship application referred to in paragraph 153(1)(b) by which the foreign national is being sponsored; or

(b) be attached to the sponsorship application sent by the sponsor in accordance with subsection 153(1.2).

Place of application

(2) The foreign national who has chosen to have their application for a permanent resident visa accompanied by the sponsorship application shall send the application for a permanent resident visa and the sponsorship application to the Department’s Case Processing Centre in Canada for processing those applications.

SOR/2012-225, s. 5
Referral requirement

140.3 (1) If the foreign national making an application for a permanent resident visa under this Division is not being sponsored, a foreign national making an application for a permanent resident visa under this Division shall submit their application with one of the following referrals, if the referral has not yet been submitted to the immigration office by its issuer:

(a) a referral from a referral organization;

(b) a referral resulting from an arrangement between the Minister and the government of a foreign state or any institution of such a government relating to resettlement; or

(c) a referral resulting from an agreement relating to resettlement entered into by the Government of Canada and an international organization or the government of a foreign state.

Exception

(2) A foreign national may submit the application without a referral if they reside in a geographic area as determined by the Minister in accordance with subsection (3).

Minister’s determination

(3) The Minister may determine on the basis of the following factors that a geographic area is an area in which circumstances justify the submission of permanent resident visa applications without a referral:

(a) advice from referral organizations with which the Minister has entered into a memorandum of understanding under section 143 that they are unable to make the number of referrals specified in their memorandum of understanding for the area;

(b) the inability of referral organizations to refer persons in the area;

(c) the resettlement needs in the area, after consultation with referral organizations that have substantial knowledge of the area; and

(d) the relative importance of resettlement needs in the area, within the context of resettlement needs globally.

Place of application

(4) If the foreign national who is being referred under any of paragraphs (1)(a) to (c) or if the foreign national resides in a geographic area as determined by the Minister in accordance with subsection (3), the foreign national shall submit their application to the immigration office outside Canada that serves the foreign national’s place of residence.

SOR/2012-225, s. 5
Return of documents

140.4 An application for a permanent resident visa made under this Division, its related sponsorship application made under Division 2 of this Part and all documents submitted in support of the applications, except the information referred to in subparagraphs 12.3(b)(i) and (ii), shall be returned to the person who sent the applications as a result of the choice made under subsection 140.2(1) if

(a) in the case of an application for a permanent resident visa, the requirements set out in paragraph 139(1)(b) are not met; or

(b) in the case of a sponsorship application, the requirements set out in paragraph 153(1)(b) and subsections 153(1.2) and (2) are not met.

SOR/2012-225, s. 5SOR/2018-128, s. 6
Non-accompanying family member

141 (1) A permanent resident visa shall be issued to a family member who does not accompany the applicant if, following an examination, it is established that

(a) the family member was included in the applicant’s permanent resident visa application at the time that application was made, or was added to that application before the applicant’s departure for Canada;

(b) the family member submits their application to an officer outside Canada within one year from the day on which refugee protection is conferred on the applicant;

(c) the family member is not inadmissible;

(d) if the applicant is the subject of a sponsorship application referred to in paragraph 139(1)(f)(i), their sponsor has been notified of the family member’s application and an officer is satisfied that there are adequate financial arrangements for resettlement; and

(e) in the case of a family member who intends to reside in the Province of Quebec, the competent authority of that Province is of the opinion that the foreign national meets the selection criteria of the Province.

Non-application of paragraph 139(1)(b)

(2) For greater certainty, the requirements set out in paragraph 139(1)(b) do not apply to the application of a non-accompanying family member.

SOR/2004-167, s. 80(F)SOR/2012-225, s. 6SOR/2014-140, s. 14
Requirements — family members

142 Subject to subsections 25.1(1) and (6) to (8) and for the purposes of this Division, to be considered a family member of an applicant, a person must be a family member of the applicant

(a) at the time the application referred to in paragraph 139(1)(b) is made; and

(b) at the time of the determination of the application referred to in paragraph 141(1)(b).

Memorandum of understanding

143 (1) The Minister may enter into a memorandum of understanding with an organization for the purpose of locating and identifying Convention refugees and persons in similar circumstances if the organization demonstrates

(a) a working knowledge of the provisions of the Act relating to protection criteria; and

(b) an ability abroad to locate and identify Convention refugees and persons in similar circumstances.

Content of memorandum of understanding

(2) The memorandum of understanding shall include provisions with respect to

(a) the geographic area to be served by the organization;

(b) the number of referrals that may be made by the organization and the manner of referral;

(c) the training of members or employees of the organization; and

(d) the grounds for suspending or cancelling the memorandum of understanding.

Convention Refugees Abroad

Convention refugees abroad class
144 The Convention refugees abroad class is prescribed as a class of persons who may be issued a permanent resident visa on the basis of the requirements of this Division.

Member of Convention refugees abroad class

145 A foreign national is a Convention refugee abroad and a member of the Convention refugees abroad class if the foreign national has been determined, outside Canada, by an officer to be a Convention refugee.

Humanitarian-protected Persons Abroad

Person in similar circumstances to those of a Convention refugee
146 (1) For the purposes of subsection 12(3) of the Act, a person in similar circumstances to those of a Convention refugee is a member of the country of asylum class.

Humanitarian-protected persons abroad
(2) The country of asylum class is prescribed as a humanitarian-protected persons abroad class of persons who may be issued permanent resident visas on the basis of the requirements of this Division.

Member of country of asylum class
147 A foreign national is a member of the country of asylum class if they have been determined by an officer to be in need of resettlement because
(a) they are outside all of their countries of nationality and habitual residence; and
(b) they have been, and continue to be, seriously and personally affected by civil war, armed conflict or massive violation of human rights in each of those countries.

148 [Repealed, SOR/2011-222, s. 6]

149 [Repealed, SOR/2011-222, s. 6]

150 [Repealed, SOR/2012-225, s. 8]

Travel document
151 An officer shall issue a temporary travel document to a foreign national who has been determined to be a member of a class prescribed by this Division and who
(a) holds a permanent resident visa or a temporary resident permit;
(b) does not hold a valid passport or travel document issued by their country of nationality or the country of their present or former habitual residence;
(c) does not hold a valid travel document issued by the United Nations or the International Committee of the Red Cross and is unable to obtain such a document within a reasonable time; and
(d) would be unable to travel to Canada if the temporary travel document were not issued.

IRPR s. 151.1 - Protected Temporary Residents

Protected Temporary Residents

Protected temporary residents class
151.1 (1) The protected temporary residents class is prescribed as a class of persons who may become permanent residents on the basis of the requirements of this section.

Member of the class
(2) A foreign national is a protected temporary resident and a member of the protected temporary residents class if the foreign national holds a temporary resident permit and
(a) became a temporary resident under a temporary resident permit for protection reasons after making a claim for refugee protection outside Canada under section 99 of the Act; or
(b) was issued a Minister’s permit under section 37 of the former Act after seeking admission to Canada under section 7 of the former Regulations or section 4 of the Humanitarian Designated Classes Regulations.

Application
(2.1) A foreign national destined for Quebec does not become a member of the protected temporary residents class described in paragraph (2)(a) if they have not received a selection certificate from the Province of Quebec.

Former Act and Regulations
(3) In subsection (2), former Act has the same meaning as in section 187 of the Act and former Regulations and Humanitarian Designated Classes Regulations have the same meaning as in subsection 316(1) of these Regulations.

References

• ↑ Canada (Citizenship and Immigration) v Esfand, 2015 FC 1190, para. 20.
• ↑ Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50 (CanLII), 2022] 4 FCR 220, at para 25, <[https://canlii.ca/t/jndkg#par25>, retrieved on 2024-12-17.

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