第五章 結論
第二節 研究檢討與建議
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率，但需要難民保護的特殊個案則可能因此被拒於門外，加拿大難民議會等民間 團體批評政府這樣的作法罔顧難民權益。
第二節 研究檢討與建議
加拿大難民政策自 1976 年實施以來，已收容全世界近百萬名難民，無論是因 人為的戰爭因素，或是自然的環境災害所產生的難民，均可見加拿大政府挺身而 出，在國際援助場合中從不缺席，然而難民政策實施至今已逾 37 個年頭，亦歷經 多次組織調整及或政策檢討，實務經驗的累積以及國際情勢的轉變也讓加拿大政 府聽到了輿情的改革聲浪及政策檢討。誠如前所述，難民並非單一國家可以處理 的問題，難民政策必須結合外在力量，包括與世界各國與國際組織如聯合國難民 署、國際移民組織的合作，以及內在力量包括外交、內政、教育、社會福利、醫 療衛生等相關部門及民間的力量，持正向態度對外尋求支持，對內積極表態，並 仰賴政府、民間共同合作，降低移入之難民對國家社會經濟及安全衝擊。
加拿大難民政策從最初將難民拒於門外之封閉態度，進而轉為重視人權，制 定專屬難民適用之法律規範，目的在於提供真正需要保護的人必須的保護措施，
並擔負起幫助那些真正有需要的人安全的在加拿大展開新生活，直到 2001 年，受 到美國 911 恐怖攻擊事件的影響，在美國反恐主義的浪潮下，加拿大也被譴責不 該以寬鬆的難民政策讓加拿大成為犯罪者的天堂，再加上加拿大政府必須回應民 眾的訴求，打擊難民以及節省公帑等國家利益考量下，2012 年提出一系列有關難 民政策的改革措施，打擊假難民，並將尋求濫用保護系統的申請人遣返出國，維 護加拿大社會安定且秩序平穩的責任，還必須確保加拿大人的健康和安全。相較 於過去開放的難民政策而言，加拿大的難民政策轉趨嚴格，從難民申請案的數量 遽減可以看出，政府對於符合難民資格的條件一再限縮，將來自安全國家名單的 申請者排除適用，不若以往依個案情形作特別考量。
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因難民問題會隨著國際情勢和時間推進而演變，本論文多偏重著墨於政策演 進的歷史、2012 年加拿大修訂移民及難民保護法及其難民政策相關措施的調整與 影響，以及法規面的研討，較少提及有關加拿大對於符合難民資格之人提供之社 會福利、醫療保健、教育資源等分配之詳細作為與措施。而且雖然目前實施難民 政策的改革措施使得難民申請案驟降，但加拿大政府的配套措施包括削減難民的 醫療保障開支，很多人原先是因為加拿大的優渥福利而申請難民保護，也招致相 當大爭議，被醫護人員和保護難民權益人士批評政府做法短視，把處於弱勢的難 民置於險境中，有違加拿大人道傳統。
加拿大在難民的安置作為方面是相當值得研究探討的，從拒絕接納難民到有 條件的接納難民，再從接受大量難民移入到現在對難民審查轉為緊縮控制，各時 期的轉變都是為了國家利益考量。新的改革政策自 2012 年開始實施，迄今約 1 年 左右，看似收到不錯的成效，難民申請案件大幅下降，加速審查效率，遣返被拒 絕的難民申請者，節省公帑達 16 億加幣，但目前尚無法斷定這樣的作法對加拿大 來說是好是壞，而且我國對難民政策方面的研究資料仍相當匱乏，然而不論是加 拿大或其他世界各國，完整的難民政策除了法制面的規定之外，如何進行後續安 置措施與保護作為才能協助難民融入社會，成為國家發展的助力，是更值得發人 省思的，期待未來能對相關議題有進一步深入研究。
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加拿大移民及難民委員會組織架構圖說明：
Chairperson（主席）
Director, Governor in Council Secretariat Services（政府協調暨秘書處執行長）
Director, Internal Audit（內部審計執行長）
Executive Director（行政室主任）
IAD - Immigration Appeal Division（移民上訴組）
ID - Immigration Division（移民組）
RAD - Refugee Appeal Division（難民上訴組）
RPD - Refugee Protection Division（難民保護組）
ADC - Assistant Deputy Chairperson（助理副主席）
RRSS - Registry & Regional Support Services（註冊及區域服務組）
Registrar（註冊組）
Senior General Counsel（資深顧問群）
SCPB - Strategic Communications and Partnerships Branch（戰略通訊及夥伴組）
HRPDB - Human Resources and Professional Development Branch
（人力資源及專業培訓組）
PPRB - Policy, Planning & Research Branch（政策規劃研究組）
資料來源：加拿大移民及難民委員會網站
http://www.irb-cisr.gc.ca/Eng/brdcom/org/Pages/index.aspx
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INFORMATION FORM”(簡稱 PIF 表格)。如果難民申請被拒，遣返令立即生
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REFUGEE PROTECTION,
CONVENTION REFUGEES AND PERSONS IN NEED OF PROTECTION
第一節
難民保護、公約難民及須保護之人
95.
(1) Refugee protection is conferred on a person when
(a) the person has been determined to be [a Convention refugee or a person in similar circumstances under a visa application] and becomes [a permanent resident under the visa] or [a temporary resident under a temporary resident permit for protection reasons];
(b) the Board determines the person to be a Convention refugee or a person in need of protection; or
(c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection
(2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4).
A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or
第96條
公約難民定義為因種族、宗教、國籍、
加入特定社會或政治團體而有遭受迫害 之虞，並有足夠證據證明之人，且 (a) 身處原屬國籍國外，且因無法或因恐
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political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries;
or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
懼而不願接受原屬國之保護者，或 person in Canada whose removal to their country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that
risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
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(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
98.
A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
(1) A designated foreign national on whom refugee protection is conferred under paragraph 95(1)(b) or (c) must report to an officer in accordance with the regulations.
(2) A designated foreign national who is required to report to an officer must answer truthfully all questions put to him or her and must provide any information and documents that the officer requests.
第98條之1
The regulations may provide for any matter relating to the application of section 98.1 and may include provisions respecting the requirement to report to an officer.
第98條之2
規範適用本法第98條之1任何事項，且得 包括遵守辦理報到之條款。
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CONVENTION REFUGEES AND PERSONS IN NEED OF PROTECTION
第二節 公約難民與須保護之人
99.
(1) A claim for refugee protection may be made in or outside Canada.
(2) A claim for refugee protection made by a person outside Canada must be made by making an application for a visa as a Convention refugee or a person in similar circumstances, and is governed by Part 1.
(3) A claim for refugee protection made by a person inside Canada must be made to an officer, may not be made by a person who is subject to a removal order, and is governed by this Part.
(3.1) A person who makes a claim for refugee protection inside Canada other than at a port of entry must provide the officer, 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) An application to become a permanent resident made by a
protected person is governed by Part 1
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Examination of Eligibility to Refer Claim
難民申請案的資格審查‧
(1) An officer shall, within three working days 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. If the claim is not referred within the three-day period referred to in subsection (1), it is deemed to be
referred, unless there is a suspension or it is determined to be ineligible.
(4) A person who makes a claim for refugee protection inside Canada at a port of
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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.
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(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;
(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, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c).
(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
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(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.
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).
(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
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(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.
(3) The Governor in Council must ensure the continuing review of factors set out in subsection (2) with respect to each designated country.
Suspension or Termination of Consideration
of Claim
難民申請案的暫緩或終止審理103.
(1) Proceedings of the Refugee Protection Division in respect of a claim for refugee protection are suspended on notice by an officer that
(a) the matter has been referred to the Immigration Division to determine whether the claimant is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality; or
(b) an officer considers it necessary to wait for a decision of a court with respect to a claimant who is charged with an offence
(b) an officer considers it necessary to wait for a decision of a court with respect to a claimant who is charged with an offence