Section 101 — Ineligibility to refer claim
Text of provision
(1) A claim is ineligible to be referred to the Refugee Protection Division if
(a) refugee protection has been conferred on the claimant under this Act;
(b) a claim for refugee protection by the claimant has been rejected by the Board;
(c) a prior claim by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned;
(c.1) the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws;
(d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country;
(e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or
(f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
(2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless
(a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
(b) in the case of inadmissibility by reason of a conviction outside Canada, the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
Plain English
Section 101 specifies when a refugee claim may not be referred to the RPD. A claim is ineligible if:
- refugee protection has already been conferred on the claimant;
- a claim was rejected by the RPD;
- a prior claim was determined to be withdrawn or abandoned;
- the claimant has been recognised as a refugee by a country other than Canada and can be sent to that country;
- the claimant came directly or indirectly from a country designated as a "safe third country" (s 102); or
- the claimant is inadmissible on grounds of security, violating human or international rights, or serious criminality.
Practical effect
An ineligibility determination prevents the RPD from hearing the claim. The person may still be eligible for a PRRA (Pre-Removal Risk Assessment) under s 112, which provides limited protection review. PRRA is generally less favourable than RPD hearings in terms of procedural rights.
The Safe Third Country Agreement with the United States is implemented through s 101(1)(e) and the safe third country designation. Persons who entered Canada illegally (between ports of entry) prior to June 2023 were eligible to claim — the legislative change in June 2023 expanded the STCA to the full border.