加拿大難民程式/IRPR 第 159 條 - 安全第三國

IRPR 第 159 條 - 資格認定

該條例相關部分的文字如下

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.

該法案第 102 條涉及索賠資格、安全第三國協議以及將國家列入名單的標準

IRPA 第 102 條的文字如下

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.

有關更多詳細資訊和背景資訊，請參閱：加拿大難民程式/100-102 - 資格認定審查#IRPA 第 102 條：條例和安全第三國協議。

安全第三國協議文字

上述條例規定實施了加拿大法律中的《安全第三國協議》文字；請參閱此引文以獲取加拿大與美國之間協議本身的文字 以及 2022 年修訂該協議的補充議定書。 補充議定書於 2023 年 3 月生效，當時加拿大和美國宣佈了對《STCA》的補充議定書，將擴大其範圍以適用於整個陸地邊界，而不僅僅是官方入境口岸。

另請參閱：加拿大難民程式/難民程式解釋原則#國家之間責任分擔和負擔分擔是《難民公約》的基本原則 和 加拿大難民程式/難民程式解釋原則#該法案應以防止出現“軌道上的難民”的方式進行解釋。

《安全第三國協議》的事實背景

安全第三國協議運作的政治背景是，加拿大收到的難民索賠數量按人均計算遠遠高於美國。美國和加拿大都是受歡迎的庇護尋求者目的地，對難民身份認定進行相對大規模的審查。美國一直是接收庇護申請數量最多的國家；2012 年，美國接收了全球總申請數量的 17.4%。加拿大往往位列前五名接收國；2008 年，加拿大是第二大受歡迎的國家，2012 年排名第六，佔全球申請的 4.3%。顯而易見，加拿大的人均庇護尋求者數量遠遠高於美國 - 例如，在 2006 年至 2010 年的五年期間，加拿大每 236 名居民就收到一份庇護申請；在美國，這個比例是每 1200 名居民收到一份庇護申請。 此外，加拿大的許多索賠人到達加拿大之前都在美國旅行過。例如，從 1995 年到 2001 年，加拿大大約三分之一的難民索賠來自或途經美國的人。

有關安全第三國的立法規定已於 1988 年成為《移民法》的一部分。當時，該規定已頒佈，但沒有列出任何國家。有關更多詳細資訊，請參閱：加拿大難民程式/加拿大難民程式歷史#IRPA 後措施。

“直接遣返政策”

請參閱：加拿大難民程式/IRPR 第 28-52 條 - 審查實施#IRPR 第 41 條 - 直接遣返。

第 159.3 條：指定國家，前提是它們除其他事項外，遵守《難民公約》第 33 條

《難民公約》第 33(1) 條規定

任何締約國均不得以任何方式將難民驅逐或遣返（“拒返”）到其生命或自由因其種族、宗教、國籍、屬於某一特定社會群體或政治見解而受到威脅的領土邊界。

第 33(1) 條長期以來一直被解釋為不僅禁止將難民直接遣返到他們害怕受到迫害的國家，還禁止透過第三國間接遣返。 請參閱：加拿大難民程式/難民程式解釋原則#該法案應以防止出現“軌道上的難民”的方式進行解釋。

《安全第三國協議》與美國的憲法合法性

《安全第三國協議》制度的憲法合法性在加拿大法院多次受到挑戰。所有對該制度的挑戰都被駁回。前兩次挑戰因程式原因而被駁回 - 分別在 1992 年由加拿大最高法院 和 2008 年由聯邦上訴法院 駁回。第三次挑戰導致加拿大最高法院在 2023 年部分維持了該制度的憲法合法性，同時將針對該挑戰的基於性別的部分交回聯邦法院以供將來審理。