Sotto il Legge sull'immigrazione e la protezione dei rifugiati (IRPA) as amended by Bill C-12, a finding of refugee claim ineligibility bars a claimant from having their case referred to the Refugee Protection Division (RPD). Contrary to common assumptions, this statutory bar does not automatically breach fundamental justice under the Singh doctrine, nor does it guarantee an oral Pre-Removal Risk Assessment (PRRA) hearing or an automatic stay of removal during Federal Court judicial review.
When an individual makes a claim for protection, their eligibility is determined against the statutory grounds set out in section 101 of the IRPA. Legislative changes under the Legge per il rafforzamento del sistema di immigrazione e delle frontiere del Canada, S.C. 2026, c. 4 (formerly Bill C-12, assented to on March 26, 2026), alongside surrounding provisions, reinforce the principle that referral to the RPD is conditional. Navigating these bars requires understanding the exact legislative texts, constitutional boundaries established by the courts, and the narrow remedies available before the Federal Court.
Sommario
- Statutory Ineligibility Grounds: Sections 101(1)(b.1), (b.2), and (e)
- Comparative Overview: Referral Bars and Downstream Protections
- The Scope of the Singh Ruling and Section 7 Charter Rights
- Pre-Removal Risk Assessment (PRRA): Access and Hearing Limitations
- Federal Court Judicial Review and the Three-Part Stay Test
- Domande frequenti
Statutory Ineligibility Grounds: Sections 101(1)(b.1), (b.2), and (e)
Section 101(1) of the IRPA sets out when a claim for refugee protection is ineligible for referral to the RPD. In the retrieved statutory scheme, paragraphs (b.1) and (b.2) impose temporal and geographic hurdles on claimants entering outside established channels:
- Paragraph 101(1)(b.1): A claim is ineligible if the claimant entered Canada after June 24, 2020, and made their claim more than one year after their date of entry. Under subsection 101(1.1), if the individual entered Canada more than once after June 24, 2020, this one-year period begins specifically on the day after their first entry. Section 75.1(1) of the C-12 Act requires the Minister of Citizenship and Immigration to prepare a report on the application of paragraph 101(1)(b.1) at the start of the fifth year after that Part comes into force.
- Paragraph 101(1)(b.2): A claim is ineligible if the claimant entered Canada along the Canada–United States land border (including border waters) at a location other than an official port of entry and made the claim after the time limit set out in section 159.4(1.1) of the Normative sull'immigrazione e sulla protezione dei rifugiati (IRPR).
- Paragraph 101(1)(e): A claim is ineligible if the person arrived directly or indirectly from a country designated by the regulations. This provision must not be conflated with the former Designated Country of Origin (DCO) framework.
A textual discrepancy exists in the retrieved regulations: IRPR section 159.4(1.1) mentions making a claim “less than 14 days” after entry, but its explicit wording states that paragraph 101(1)(e) applies rather than addressing paragraph 101(1)(b.2). As a result, the enforceable time limit applicable to paragraph (b.2) cannot be assumed to be 14 days without reconciling the official in-force statutory and regulatory texts.
Comparative Overview: Referral Bars and Downstream Protections
The following table outlines the operational differences between key referral bars, PRRA availability, and hearing entitlements based on the retrieved authorities.
| Ineligibility Ground (IRPA) | Primary Trigger Condition | Access to PRRA (IRPA s. 112) | Oral Hearing Entitlement |
|---|---|---|---|
| Paragraph 101(1)(b.1) | Entry after June 24, 2020; claim made >1 year after first entry. | Available upon enforceable removal order (unless otherwise barred). | Discretionary under s. 113(b) based on prescribed factors. |
| Paragraph 101(1)(b.2) | Irregular entry at US land/water border; outside IRPR 159.4(1.1) time limit. | Available upon enforceable removal order (unless otherwise barred). | Discretionary under s. 113(b) based on prescribed factors. |
| Paragraph 101(1)(c.1) | Prior claim barred under specific statutory conditions. | Available upon enforceable removal order. | Obbligatorio under s. 113.01 unless granted on paper. |
| Paragraph 101(1)(e) | Arrival from a country designated under the regulations. | Sbarrato under IRPA s. 112(2)(b). | Not applicable due to statutory PRRA bar. |
The Scope of the Singh Ruling and Section 7 Charter Rights
The landmark Supreme Court of Canada decision in Singh contro il Ministro dell'Occupazione e dell'Immigrazione, [1985] 1 SCR 177, is frequently cited as guaranteeing an oral hearing to anyone claiming asylum in Canada. However, its actual legal holding is more qualified. Singh assessed the adjudication procedures under the former Immigration Act, 1976, determining that those statutory mechanics failed to accord fundamental justice under section 7 of the Carta dei diritti e delle libertà canadesi.
Justice Wilson observed in Singh that an oral hearing before the decision-maker is not required in every context where section 7 is invoked, acknowledging that written submissions may serve as an adequate substitute in appropriate circumstances. The concurrent reasons of Justice Beetz relied upon the Carta dei diritti canadese rather than the Charter, holding that an oral hearing was necessary prior to a final disposition on the merits under that historical framework. Singh does not establish an automatic constitutional right to an RPD hearing under the current IRPA scheme.
This principle was confirmed by the Federal Court in Seklani v. Canada (Public Safety and Emergency Preparedness), 2020 FC 778. Assessing the bar under paragraph 101(1)(c.1), the Court held at paragraph 52:
“Section 7 of the Charter does not require a particular type of process and does not give a positive right to refugee protection. Section 7 protects against removal to a place where an individual would face a substantial risk of death, torture, or cruel and unusual treatment or punishment. As such, a bar from the RPD does not engage section 7 rights… Section 7 instead requires a fair process having regard to the nature of the proceedings and the interests at stake.”
The constitutional protection under section 7 guarantees the right not to be removed without a proper assessment of risk; it does not confer a right to have that risk adjudicated by the RPD specifically.
Pre-Removal Risk Assessment (PRRA): Access and Hearing Limitations
For individuals barred from RPD adjudication, the Pre-Removal Risk Assessment (PRRA) serves as an alternative mechanism to assess risk. Under section 112(1) of the IRPA, an individual must apply to the Minister for protection if they are subject to an enforceable removal order. Access to a PRRA is neither automatic nor universal:
- Statutory Exclusions: Section 112(2)(b) explicitly bars a PRRA application if the individual’s claim was determined ineligible under paragraph 101(1)(e).
- Risultati vari: Under section 114(1), an approved PRRA confers refugee protection to eligible applicants; however, for persons subject to section 112(3), an approved PRRA results only in a stay of the removal order with respect to the specific country where risk was established.
- Discretionary Oral Hearings: Pursuant to section 113(b), an oral PRRA hearing is held only if the Minister forms the opinion, based on prescribed regulatory factors, that a hearing is required.
The only mandatory hearing rule is found in section 113.01 of the IRPA, which dictates that an oral hearing must be held if the claim was found ineligible unicamente under paragraph 101(1)(c.1), unless protection is granted on paper. This mandatory requirement cannot be generalized across other ineligibility grounds such as paragraphs (b.1), (b.2), or (e).
Federal Court Judicial Review and the Three-Part Stay Test
Decisions rendering a claim ineligible or refusing a PRRA application can be challenged through an application for judicial review before the Federal Court under section 72(1) of the IRPA. As the Federal Court of Appeal noted in Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223 (at para 45), judicial review is fundamentally distinct from an appeal to the Refugee Appeal Division (RAD). While access to the RAD is as of right and permits new evidence under statutory criteria, access to the Federal Court requires leave and is strictly confined to the evidentiary record before the administrative decision-maker.
Where an administrative error is proven, judicial review provides a direct remedy. In Szalai v. Canada (Citizenship and Immigration), 2018 FC 972, the Court found that a PRRA officer committed a reviewable error by improperly factoring an earlier RPD state protection finding into her independent analysis. The application was allowed, the negative decision was set aside, and the matter was remitted for redetermination by a different officer. Judicial review does not grant protection directly; it orders reconsideration free from legal error.
Crucially, filing an application for leave and judicial review does not stop a deportation. Under IRPA section 48(1), an enforceable removal order must be executed. As clarified in Mida v. Canada (Citizenship and Immigration), 2025 FC 607 (at para 25), the statutory stay provisions under IRPR section 232 do not apply to applications for leave challenging negative PRRA decisions. Claimants facing imminent removal must bring an independent motion for an interlocutory stay of removal under the conjunctive three-part test set out in Misurare (at paras 10, 12):
- The underlying judicial review application raises a serious question to be tried;
- The applicant will suffer irreparable harm if the stay is refused; and
- The balance of convenience favours granting the stay.
For legal advice regarding RPD referrals, PRRA submissions, and Federal Court litigation, contact the immigration team at Società di Legge Pax.
Domande frequenti
Does the Supreme Court’s Singh ruling guarantee an oral hearing for every refugee claimant?
No. While Justice Wilson in Singh held that the procedures under the Immigration Act, 1976 violated section 7 of the Charter, she affirmed that an oral hearing is not mandatory in every context where section 7 is engaged, accepting that written submissions may suffice depending on the circumstances.
Can an individual whose claim is barred under paragraph 101(1)(e) apply for a PRRA?
No. Section 112(2)(b) of the IRPA explicitly prohibits an application for a Pre-Removal Risk Assessment if the claim has been determined ineligible under paragraph 101(1)(e).
Does filing for Federal Court judicial review automatically pause a deportation order?
No. Pursuant to IRPA section 48(1) and the Federal Court’s ruling in Misurare (2025 FC 607), filing an application for leave and judicial review against a negative PRRA does not create an automatic statutory stay. The applicant must file a separate motion and satisfy the three-part test for an interlocutory stay of removal.
What is the deadline to file for judicial review in Canada?
Under IRPA section 72(2)(b), the notice of application must be served and filed in the Federal Court within 15 days after the applicant is notified or becomes aware of the decision for matters arising in Canada, or within 60 days for matters arising outside Canada. Extensions require demonstrated special reasons under section 72(2)(c).
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