Vol. 149, No. 13 — July 1, 2015

Registration

SI/2015-52 July 1, 2015

IMMIGRATION AND REFUGEE PROTECTION ACT

Ministerial Responsibilities Under the Immigration and Refugee Protection Act Order

P.C. 2015-808 June 11, 2015

Whereas subsections 4(1) (see footnote a) and (2) (see footnote b) of the Immigration and Refugee Protection Act (see footnote c) provide that both the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness have responsibility for the administration of the Act;

And whereas subsection 4(3) (see footnote d) of that Act provides that, subject to subsections 4(1) to (2) (see footnote e), the Governor in Council may specify which Minister shall be the Minister for the purposes of any provision of that Act and that both Ministers may, in specified circumstances, be the Minister for the purposes of any provision of the Act;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, pursuant to subsection 4(3) (see footnote f) of the Immigration and Refugee Protection Act,

MINISTERIAL RESPONSIBILITIES UNDER THE IMMIGRATION AND REFUGEE PROTECTION ACT ORDER

Definition of “Act”

1. In this Order, “Act” means the Immigration and Refugee Protection Act.

Minister of Public Safety and Emergency Preparedness

2. The Minister of Public Safety and Emergency Preparedness is the Minister for the purposes of subsections 20.1(1), 63(5) and 77(1), section 81, subsection 82.1(1), section 82.4, subsection 109(1) and paragraph 173(b) of the Act.

Dual responsibility

3. The Minister of Public Safety and Emergency Preparedness is, in respect of those matters for which he or she is responsible under the Act, the Minister for the purposes of section 6, subsections 15(4) and 16(2.1), sections 21 and 73, subsection 77(2), sections 86, 87 and 110, subsection 146(1), section 147, subsection 167(1), sections 169, 170 and 171 and subsection 175(2) of the Act. The Minister of Citizenship and Immigration is the Minister for the purposes of those provisions in respect of all other matters.

Coming into force

4. This Order comes into force on the day on which it is published in the Canada Gazette, Part II.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

Pursuant to subsection 4(3) of the Immigration and Refugee Protection Act (IRPA), the Governor in Council hereby repeals Order in Council P.C. 2005-2042 of November 21, 2005 (hereafter the previous Order or the 2005 Order), and replaces it with a Ministerial Responsibilities Under the Immigration and Refugee Protection Act Order, that specifies which Minister, or Ministers, have responsibility for the purposes of the provisions of the IRPA.

Objective

To ensure that the respective responsibilities of the Minister of Citizenship and Immigration (CIC) and the Minister of Public Safety and Emergency Preparedness (PSEP) are clearly delineated regarding specific provisions of the IRPA.

Background

The Order clarifies the responsibilities of each Minister regarding matters within their respective mandates under the IRPA. Subsections 4(1) and 4(2) of the IRPA establish certain responsibilities for each Minister. Under subsection 4(3) of the IRPA, the Governor in Council may, by Order, specify which Minister is the Minister for the purposes of any provision of the IRPA, or specify that both Ministers are the Minister for the purposes of any provision of the IRPA and the circumstances in which each is the Minister. The previous Order included some provisions that were already clearly under the purview of a Minister pursuant to subsection 4(1) or 4(2). However, pursuant to subsection 4(3) of the IRPA, the description of authorities in the Order is limited to those provisions which are not immediately identifiable to subsections 4(1) or 4(2) or which implicate both subsections of the legislation.

The previous Order was made in 2005, and since that time the IRPA has undergone substantial amendments through An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, the Balanced Refugee Reform Act (BRRA), the Protecting Canada’s Immigration System Act (PCISA), and the Faster Removal of Foreign Criminals Act (FRFCA). Accordingly, a new order is required to reflect these changes.

In 2008, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act introduced provisions with associated responsibilities for either, or both, the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration. These responsibilities are related to security certificates, the detention and release of persons, and the protection of information pursuant to Division 9 of Part 1 of the IRPA.

The BRRA, the PCISA and the FRFCA amended the IRPA in 2010, 2012, and 2013, respectively, and introduced new provisions with associated responsibilities, including responsibilities that are shared between the Ministers. In particular, the BRRA and the PCISA introduced new provisions with respect to the designated foreign nationals and the designated country of origin while amending provisions associated with the Refugee Appeal Division, applications to vacate a decision to allow a claim for refugee protection, cessation of refugee protection, and the pre-removal risk assessment. The FRFCA introduced new provisions that compel foreign nationals to attend security interviews with the Canadian Security Intelligence Service as part of the assessment of their admissibility to Canada, when required by a Citizenship and Immigration Canada officer or a Canada Border Services Agency officer. The FRFCA also provides the Minister of Citizenship and Immigration the authority to declare that a foreign national may not become a temporary resident on the basis of public policy considerations. Where required, the Order reflects the responsibilities associated with some of these new provisions.

To take these changes into consideration, the new Order must therefore be made to ensure that the responsibilities of the Ministers are properly delineated.

A list of the new Order’s provisions is provided in the table below, grouped by area of ministerial responsibility. In addition, in Appendix 1 are provisions previously listed in the 2005 Order, which were not included in the new Order because they are clearly under the purview of a particular Minister as a result of the operation of subsection 4(1) or 4(2) or they no longer refer to “Minister.” For greater certainty, this does not result in a change in terms of the responsibilities of either Minister. Appendix 1 also includes provisions previously listed in the 2005 Order, which were not included as they no longer exist due to the various amendments to the IRPA.

Furthermore, in accordance with subsection 4(1), except as otherwise provided, the Minister of Citizenship and Immigration is responsible for the administration of this Act; therefore, all provisions fall under the responsibility of the Minister of Citizenship and Immigration if they are not specified in the new Order or otherwise provided for in the Act.

Ministerial Responsibilities Under the Immigration and Refugee Protection Act Order
LIST OF PROVISIONS
PROVISION DESCRIPTION
Responsibility of the Minister of Public Safety and Emergency Preparedness
20.1(1) Designation — Human smuggling or other irregular arrival (Entering and remaining) [New provision stemming from PCISA]
63(5) Right of appeal — Minister (Right of appeal) [No changes; carried over from 2005 Order]
77(1) Referral of certificate (Certificate) [Provisions stemming from An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act] Reference to Minister of Public Safety and Emergency Preparedness required updating
81 Ministers’ warrant (Detention and release) [New provision stemming from An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act]
82.1(1) Variation of orders [New provision stemming from An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act]
82.4 Minister’s order to release [New provision stemming from An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act]
109(1) Vacation of refugee protection (Applications to vacate) [No changes; carried over from 2005 Order]
173(b) Proceedings (Immigration Division) [No changes; carried over from 2005 Order]
Dual Responsibility, Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness
6 Designation of officers (Enabling authority) [Added for clarification]
15(4) Instructions (Examination) [No changes; carried over from 2005 Order]
16(2.1) Obligation — Interview (Examination) [New provision stemming from FRFCA]
21 Protected person and Pending application — Subsection 108(2) [Added for clarification]
73 Right of Minister (Judicial review) [Added for clarification]
77(2) Filing of evidence and summary (Certificate) [Provisions stemming from An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act. “Minister” refers to both the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness]
86 Application for non-disclosure (Other proceedings) [No changes; carried over from 2005 Order]
87 Application for non-disclosure — Judicial review (Other proceedings) [No changes; carried over from 2005 Order]
110 Appeal (Appeal to Refugee Appeal Division); Notice of appeal (Appeal to Refugee Appeal Division); Restriction on appeals (Appeal to Refugee Appeal Division); Procedure (Appeal to refugee appeal division); and Exception (Appeal to refugee appeal division) [New provisions stemming from BRRA]
146(1) Certificates (Collection of debts due to Her Majesty) [No changes; carried over from 2005 Order]
147 Garnishment [No changes; carried over from 2005 Order]
167(1) Right to counsel (Provisions that apply to all divisions) [Amended to specify the Minister of PSEP]
169 Decisions and reasons (Provisions that apply to all divisions) [No changes; carried over from 2005 Order]
170 Proceedings (Refugee Protection Division) [Moved from Minister of Public Safety and Emergency Preparedness to shared provision as a result of the ministerial reviews and interventions pilot project, which was introduced under the Balanced Refugee Reform Act]
171 Proceedings (Refugee Appeal Division) [New provision stemming from PCISA]
175(2) Presence of permanent resident (Immigration Appeal Division) [Added for clarification]

Consultation

Citizenship and Immigration Canada, Public Safety Canada, the Canada Border Services Agency, and the Department of Justice were consulted on the responsibilities outlined in the Order, and support its implementation. The Immigration and Refugee Board was also consulted and it found that implementation of the Order was operationally feasible.

Departmental contacts

Philip Somogyvari
Director
Cabinet, Parliamentary and Regulatory Affairs
Strategic Policy and Planning
Citizenship and Immigration Canada
365 Laurier Avenue West
Ottawa, Ontario
K1A 1L1
Email: Philip.Somogyvari@cic.gc.ca

Élise Renaud
Manager
National Security Policy Division
Public Safety Canada
269 Laurier Avenue West
Ottawa, Ontario
K1A 0P8
Email: Elise.Renaud@ps-sp.gc.ca

APPENDIX 1

Provisions previously listed in the 2005 Order have been removed from the new Order for the following reasons: they were clearly under the purview of the Minister of Citizenship and Immigration under subsection 4(1) or they no longer exist due to the IRPA amendments.

Minister of Citizenship and Immigration
PROVISION DESCRIPTION EXPLANATION
108 Rejection As per subsection 4(1) — No need to mention in the Order because by default the responsibility falls under Minister of CIC since it is not listed under the responsibility of the Minister of PSEP.
112 to 114 Pre-removal risk assessment As per subsection 4(1) — No need to mention in the Order because by default the responsibility falls under Minister of CIC since it is not listed under the responsibility of the Minister of PSEP.
115(1) and (2) Principle of non-refoulement As per subsection 4(1) — No need to mention in the Order because by default the responsibility falls under Minister of CIC since it is not listed under the responsibility of the Minister of PSEP.
79 and 80 Proceedings suspended; determination that a certificate is reasonable [as previously titled before the coming into force of An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act] An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act amended sections 79 and 80, which resulted in these sections not being required to be included in the new Order.
167(1) Right to counsel Provision moved to shared responsibility under the new Order as both Ministers are responsible for subsection 167(1).

These provisions had previously been listed in the 2005 Order, but have been removed because they were clearly under the purview of the Minister of Public Safety and Emergency Preparedness pursuant to subsection 4(2), or they no longer exist due to amendments to the IRPA.

Minister of Public Safety and Emergency Preparedness — Provisions clearly under subsection 4(2)
PROVISION DESCRIPTION EXPLANATION
15(3) Inspection Paragraph 4(2)(a) — Port of entry function
16(3) Evidence relating to identity Paragraph 4(2)(b) — Enforcement function
23 Entry to complete examination Paragraph 4(2)(a) — Port of entry function
44 Report on inadmissibility Paragraph 4(2)(b) — Enforcement function
50 Stay Paragraph 4(2)(b) — Enforcement function, including removal
52(2) Return to Canada Paragraph 4(2)(b) — Enforcement function, including removal
55 to 59 Arrest and detention Paragraph 4(2)(b) — Enforcement function, including arrest and detention
78(e) to (f) Judicial considerations (as previously titled) Provisions no longer exist as a result of An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act
84(1) Release (as previously titled) Provisions no longer exists as a result of An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act
138(2) Temporary assistants Paragraph 4(2)(b) — Enforcement function
139 Search Paragraph 4(2)(b) — Enforcement function
140 Seizure Paragraph 4(2)(b) — Enforcement function

These provisions had previously been listed in the 2005 Order, but have been removed because they no longer referred to “Minister.”

Minister of Citizenship and Immigration or Minister of Public Safety and Emergency Preparedness
PROVISION DESCRIPTION EXPLANATION
15(1) Examination by an officer Reference is made to an “officer” and not the “Minister”
16(1) Obligation — Answer truthfully Reference is made to an “officer” and not the “Minister”
19, 21(1), 22 Right of entry, permanent resident, temporary residents Reference is made to an “officer” and not the “Minister”
82(1) Detention of permanent resident (as previously titled) Provision amended as a result of An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act and no longer refers to “Minister”
99(3) Claim inside Canada — Refugee claim Reference is made to an “officer” and not the “Minister”
100 Referral to Refugee Protection Division (RPD) Reference is made to an “officer” and not the “Minister”
101(2) Serious criminality Removed as “Minister” is no longer mentioned as a result of PCISA
103 Suspension Reference is made to an “officer” and not the “Minister”
104 Notice of ineligible claim Reference is made to an “officer” and not the “Minister”
138(1) Powers of a peace officer Reference is made to an “officer” and not the “Minister”
141 Oaths and evidence This was previously a shared responsibility but removed from the Order as reference is made to an “officer” and not the “Minister”
142 Duties of a peace officer to execute orders Reference is made to an “officer” and not the “Minister”
144 Prosecution of designated offences Reference is made to an “officer” and not the “Minister”
148 Obligation of operators of vehicles and facilities Reference is made to an “officer” and not the “Minister”