加拿大難民程式/IRPR ss. 230-234 - 驅逐令的暫緩

IRPR ss. 230-234

《移民和難民保護條例》 中相關部分的文字如下所示

DIVISION 3
Stay of Removal Orders

Considerations
230 (1) The Minister may impose a stay on removal orders with respect to a country or a place if the circumstances in that country or place pose a generalized risk to the entire civilian population as a result of
(a) an armed conflict within the country or place;
(b) an environmental disaster resulting in a substantial temporary disruption of living conditions; or
(c) any situation that is temporary and generalized.

Cancellation
(2) The Minister may cancel the stay if the circumstances referred to in subsection (1) no longer pose a generalized risk to the entire civilian population.

Exceptions
(3) The stay does not apply to a person who
(a) is inadmissible under subsection 34(1) of the Act on security grounds;
(b) is inadmissible under subsection 35(1) of the Act on grounds of violating human or international rights;
(b.1) is inadmissible under subsection 35.1(1) of the Act on grounds of sanctions;
(c) is inadmissible under subsection 36(1) of the Act on grounds of serious criminality, under subsection 36(2) of the Act on grounds of criminality or under subsection 36(2.1) of the Act on grounds of transborder criminality;
(d) is inadmissible under subsection 37(1) of the Act on grounds of organized criminality;
(e) is a person referred to in section F of Article 1 of the Refugee Convention; or
(f) informs the Minister in writing that they consent to their removal to a country or place to which a stay of removal applies.

IRPR s. 231：驅逐暫緩 - 司法審查

Stay of removal — judicial review
231 (1) Subject to subsections (2) to (4), a removal order is stayed if the subject of the order makes an application for leave for judicial review in accordance with section 72 of the Act with respect to a decision of the Refugee Appeal Division that rejects, or confirms the rejection of, a claim for refugee protection, and the stay is effective until the earliest of the following:
(a) the application for leave is refused,
(b) the application for leave is granted, the application for judicial review is refused and no question is certified for the Federal Court of Appeal,
(c) if a question is certified by the Federal Court,
(i) the appeal is not filed within the time limit, or
(ii) the Federal Court of Appeal decides to dismiss the appeal, and the time limit in which an application to the Supreme Court of Canada for leave to appeal from that decision expires without an application being made,
(d) if an application for leave to appeal is made to the Supreme Court of Canada from a decision of the Federal Court of Appeal referred to in paragraph (c), the application is refused, and
(e) if the application referred to in paragraph (d) is granted, the appeal is not filed within the time limit or the Supreme Court of Canada dismisses the appeal.

Exception
(2) Subsection (1) does not apply if, when leave is applied for, the subject of the removal order is a designated foreign national.

Other exceptions
(3) There is no stay of removal if
(a) the person is subject to a removal order because they are inadmissible on grounds of serious criminality; or
(b) the subject of the removal order resides or sojourns in the United States or St. Pierre and Miquelon and is the subject of a report prepared under subsection 44(1) of the Act on their entry into Canada.

Non-application
(4) Subsection (1) does not apply if the person applies for an extension of time to file an application referred to in that subsection.

IRPR s. 231(1) 和 231(2) 的歷史

2009 年，在被稱為“難民改革”的《移民和難民保護法》修正案之前，上述條款內容如下

Stay of removal — judicial review
231. (1) Subject to subsections (2) to (4), a removal order is stayed if the subject of the order has filed an application for leave for judicial review in accordance with subsection 72(1) of the Act with respect to a determination of the Refugee Protection Division to reject a claim for refugee protection, and the stay is effective until the earliest of the following:
...

No credible basis exception
(2) Subsection (1) does not apply if the Refugee Protection Division states in its decision, in accordance with subsection 107(2) of the Act, that there is no credible basis for the claim.

IRPR s. 231(1)：除 (2) 至 (4) 款外，對難民上訴司 (RAD) 決定的司法審查，提供自動暫緩，但不包括難民保護司 (RPD) 決定

IRPR s. 231(1) 規定，如果驅逐令的受令者對難民上訴司的決定提出司法審查申請，則驅逐令應予暫緩。在實施難民改革之前，《IRPR》第 231 條規定，當失敗的難民申請人對 RPD 拒絕的難民申請提出申請，並對其進行司法審查時，應自動暫緩驅逐，但須遵守某些例外和限制（例如，嚴重罪犯和沒有可信依據的申請）。2012 年 12 月 15 日，《IRPR》第 231 條修正案規定，當難民申請人對其被拒絕的申請尋求司法審查時，對難民上訴司 (RAD) 拒絕的申請提供自動驅逐暫緩，而不是難民保護司 (RPD) 拒絕的申請。由於對《IRPR》第 231 條的修正，對申請了 RPD 拒絕的申請的司法審查和申請的申請人，不再提供自動驅逐暫緩；相反，對申請了 RAD 拒絕的申請的司法審查和申請的申請人，提供自動驅逐暫緩，但須遵守某些豁免和限制。

IRPR s. 232：驅逐暫緩 - 驅逐前風險評估

Stay of removal — pre-removal risk assessment
232 A removal order is stayed when a person is notified by the Department under subsection 160(3) that they may make an application under subsection 112(1) of the Act, and the stay is effective until the earliest of the following events occurs:
(a) the Department receives confirmation in writing from the person that they do not intend to make an application;
(b) the person does not make an application within the period provided under section 162;
(c) the application for protection is rejected;
(d) [Repealed, SOR/2012-154, s. 12]
(e) if a decision to allow the application for protection is made under paragraph 114(1)(a) of the Act, the decision with respect to the person’s application to remain in Canada as a permanent resident is made; and
(f) in the case of a person to whom subsection 112(3) of the Act applies, the stay is cancelled under subsection 114(2) of the Act.

IRPR s. 233：驅逐暫緩 - 人道主義和同情或公共政策考慮

Stay of removal — humanitarian and compassionate or public policy considerations
233 A removal order made against a foreign national, and any family member of the foreign national, is stayed if the Minister is of the opinion that the stay is justified by humanitarian and compassionate considerations, under subsection 25(1) or 25.1(1) of the Act, or by public policy considerations, under subsection 25.2(1) of the Act. The stay is effective until a decision is made to grant, or not grant, permanent resident status.

IRPR s. 234：法案第 50(a) 款的適用

Application of par. 50(a) of the Act
234 For greater certainty and for the purposes of paragraph 50(a) of the Act, a decision made in a judicial proceeding would not be directly contravened by the enforcement of a removal order if
(a) there is an agreement between the Canada Border Services Agency and the Attorney General of Canada or the attorney general of a province that criminal charges will be withdrawn or stayed on the removal of the person from Canada; or
(b) there is an agreement between the Canada Border Services Agency and the Attorney General of Canada or the attorney general of a province to withdraw or cancel any summons or subpoena on the removal of the person from Canada.