Section 100 — Referral to Refugee Protection Division
Text of provision
(1) An officer shall, after receipt of a claim referred to in subsection 99(3), determine whether the claim is eligible to be referred to the Refugee Protection Division and, if it is eligible, shall refer the claim in accordance with the rules of the Board.
(1.1) The burden of proving that a claim is eligible to be referred to the Refugee Protection Division rests on the claimant, who must answer truthfully all questions put to them.
(2) The officer shall suspend consideration of the eligibility of the person’s claim if
(a) a report has been referred for a determination, at an admissibility hearing, of whether the person is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality; or
(b) the officer considers it necessary to wait for a decision of a court with respect to a claimant who is charged with an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years.
(3) The Refugee Protection Division may not consider a claim until it is referred by the officer.
(4) A person who makes a claim for refugee protection inside Canada at a port of entry and whose claim is referred to the Refugee Protection Division must provide the Division, within the time limits provided for in the regulations, with the documents and information — including in respect of the basis for the claim — required by the rules of the Board, in accordance with those rules.
(4.1) The referring officer must, in accordance with the regulations, the rules of the Board and any directions of the Chairperson of the Board, fix the date on which the claimant is to attend a hearing before the Refugee Protection Division.
(5) If a traveller is detained or isolated under the Quarantine Act, the period referred to in subsections (1) and (3) does not begin to run until the day on which the detention or isolation ends.
Plain English
Section 100 provides that an officer must determine whether a refugee claim is eligible to be referred to the RPD under s 101. If the claim is eligible, the officer must refer it within the prescribed time. Once referred, the claim is before the RPD for determination.
Section 100 also provides that certain documents must be provided to the claimant following the referral, and that a claim is not referrable if the claimant is subject to a removal order that became enforceable before the claim was made.
Practical effect
Section 100 is the procedural bridge between the making of a refugee claim and its determination by the RPD. Key points:
- Eligibility determination — the officer decides eligibility under s 101 before referring; if ineligible, the claim is not sent to the RPD and the person may face removal
- Time limits — regulations prescribe timelines for referral; failure to meet timelines does not void the referral but may affect the claimant's rights
- Designated foreign national — claims by designated foreign nationals under s 20.1 are referred to the RPD but processed under restrictions including a bar on IAD appeals and a delay before PRRA eligibility
- Protected during referral — once a claim is referred to the RPD, most removal orders against the claimant are stayed pending the RPD decision and, if applicable, RAD decision
- Basis of claim form — claimants must complete a Basis of Claim (BOC) form within prescribed timelines after referral; failure to file the BOC can result in the RPD declaring the claim abandoned