Area of Law: Immigration Law
Answer # 673
Evaluation of applications for refugee statusRegion: Ontario Answer # 673
Refugee applications made within Canada
Each application for refugee status is evaluated separately by the Refugee Protection Division of the Immigration and Refugee Board (IRB). The IRB considers many important factors when they decide about a refugee claim.
If you have been found to be eligible to make a refugee claim, you will be asked to appear at a hearing with the Refugee Protection Division. Most refugee hearings take place within 60 days of the date your claim is determined to be eligible. The main purpose of the hearing is for the IRB to hear your explanation of what has happened to you, and what would happen if you were to be returned to your home country. Most importantly, you must demonstrate a need for protection because you would not be safe in your home country. You should keep all documents that describe the conditions in your home country. Some examples of useful documents include newspaper reports, reports from human rights groups, or letters from your friends or family that describe the living conditions.
You have the right to have a lawyer attend the hearing with you. Since this hearing is extremely important, it is strongly recommended that you meet with a lawyer and obtain assistance in filling out the Basis of Claim form and preparing for the hearing. The lawyer should attend the hearing with you. If you are unable to afford a lawyer, you may qualify for legal aid.
You also have the right to choose whether the hearing is conducted in English or French, and you have the right to have a qualified interpreter in your own language present at the hearing. The interpreter is appointed by the Refugee Protection Division, and there is no charge to you. If there are any problems with the interpretation, tell your lawyer or the Refugee Protection Division member. The hearing is normally private and confidential; however, with your permission a friend or family member can be an observer to the hearing. In most cases, only you, your lawyer and an IRB member will be at the hearing.
At the hearing, the member will assess your claim based on your testimony and the evidence you provide. Any documentary evidence must be submitted to the IRB at least 10 days before your hearing. Some examples of useful documents include police and medical reports, newspaper reports, reports from human rights groups, or letters from your friends or family that describe what happened to you and why you cannot return to your country.
After the consideration of your testimony, your evidence and the legal definition of a refugee, the IRB member will evaluate whether you are a refugee. The member must be satisfied that:
- Your identity has been proven. This is usually done by producing a passport or a birth certificate.
- Your story is believable and that you face a genuine risk in your country of nationality.
- You would face this risk in all parts of your country and there is no where you can go inside your country to escape it.
- Your own government is unwilling or completely incapable of protecting you from the risk OR that the risk comes from the government itself.
- You have not committed any serious crimes or unlawful acts before entering Canada that may disqualify you from refugee protection.
The Refugee Protection Division hearing is a very important part of making a refugee claim. Your lawyer can help you prepare for the hearing and assist you to present your case in the best possible way.
Reasons your claim may be rejected
A rejected claim indicates that the Immigration and Refugee Board (IRB) decided to not grant you refugee status. There are several reasons as to why a claim can be denied, including:
- The Immigration and Refugee Board (IRB) does not find your claim to be credible
- The Immigration and Refugee Board (IRB) cannot prove your identity
- A well-founded fear of persecution was not established
- You did not seek help from authorities (police) even though it was a possibility
- There was another place in your country where you could find safety
What happens if your claim is rejected?
If your claim for refugee status is rejected, it means you may not stay in Canada. If you have exhausted all the appeal and review options for challenging your removal, your removal order will come into force allowing the Canada Border Services Agency (CBSA) to remove you from Canada.
There are three types of removal orders:
Departure Order. This type of order requires you to leave Canada within 30 days after the order comes into effect, and before leaving, you must obtain a certificate of departure from CBSA to prove that you are leaving. If you comply with these two requirements, you are not barred from applying for entry into Canada again. If you do not comply with these requirements, the Departure Order automatically becomes a Deportation Order.
Exclusion Order. This type of order requires you to leave Canada, and may not return for one year, or in some cases two years, unless you have written permission from the Government of Canada, from the date that your departure from Canada was confirmed.
Deportation Order. This type of order requires you to leave Canada and you may not return unless you have the written permission from the Government of Canada, prior to re-entry.
Options if you are refused refugee status
If you are in Canada and have had a refugee claim refused, you may still have options.
First, you may be able to appeal to the Refugee Appeal Division (RAD) at the IRB. You must file a Notice of Appeal with the RAD within 15 days of receiving your refugee refusal. You have 30 days from receiving your refugee refusal to explain to the RAD why the refusal is wrong. The RAD will receive written arguments and, in certain cases, it will accept new evidence. RAD proceedings are complicated and you should speak to a lawyer before beginning the process. As long as your case is with the RAD, you are protected from deportation.
Not all refused refugee claimants have access to the RAD. If you do not, the second option is to file an application to the Federal Court of Canada for a judicial review. You should consult with an immigration lawyer as soon as possible after your claim is rejected so that you can get help with the review. Federal Court challenges must be commenced within 15 days of receiving notice of your refugee refusal. Many challenges are not granted leave which means that the case will not be heard. If leave is granted, the Federal Court can either uphold the Board’s decision (which means they agree with it), or send the case back to the IRB for a rehearing. Refusals by the RAD can also be reviewed by the Federal Court.
Further options if your refugee claim is finally refused
If a refused refugee claimant has not been deported within one year of their refugee claim being refused, they will have further options. After the one-year anniversary has past, these individuals will be able to make a Pre-Removal Risk Assessment (PRRA) application. This process provides failed refugee claimants with an opportunity to explain why they should not be removed from Canada. Valid reasons include new evidence not available at the time of your IRB hearing, or changed circumstances since their IRB hearing. Those found in need of protection may apply for permanent residence. Those found not in need of protection may be removed from Canada. Those who are unsuccessful may apply for a judicial review by the Federal Court of Canada. Please note, for refused refugee claimants from certain ‘safe’ countries – called Designated Countries of Origin – there is no access to the PRRA until 3 years after their refugee claim was refused.
Lastly, you may apply to the Minister of Immigration, Refugees and Citizenship Canada (IRCC) to remain in Canada on humanitarian and compassionate grounds, even when you fail to meet the legislative requirements for immigrating to, or remaining in Canada. There is no automatic stay of removal associated with this application. Those who are successful in their applications will become permanent residents of Canada. Those who are unsuccessful may apply for a judicial review by the Federal Court of Canada.
Refugee applications made while outside Canada
If the applicant made their application at a Canadian visa office while outside Canada, the decision as to whether the person will receive refugee status is made by that visa office. After the application for Convention Refugee Abroad or Country of Asylum Class is submitted, the visa office will send the applicant a letter to confirm that they received it. The letter will include your file number. You should use this number whenever you are corresponding with the visa office.
The visa office first will review your application to make sure that you have included all the necessary forms and supporting documents. If your application is complete, the visa office can make a decision based solely on your application, or they can schedule an interview with you. In most cases, an interview is required. At the interview, you will be required to answer questions about your application and explain your situation in more detail. It is important for you to bring any documents that you have which support your claim, as well as a copy of all the forms you already submitted.
How long it will take the visa office to evaluate your application and make a decision depends on the visa office where you applied and whether your application was complete and in good order. You will also be required to undergo both a medical examination, and criminal and security checks. If you do not pass the medical exam or you have a criminal record, your application can be denied.
After your interview, the visa office will make a decision as to whether they will accept you as a refugee. If your application is approved, you will receive a permanent resident visa from IRCC, as well as a Confirmation of Permanent Residence (COPR) document. The COPR will include your personal identification information, your photograph, and your signature. When you come to Canada, you will need to show both of these documents as well as your passport, or other travel document. If you do not have a passport, you will be required to obtain a single-journey travel document from IRCC, or an International Committee of the Red Cross (ICRC) travel document before coming to Canada. It is important to come to Canada before the time set-out in your permanent resident visa expires.
If your application is rejected, you do not have a right to appeal. However, you can try to challenge the decision in the Federal Court and you are permitted to make a new application.
Temporary changes due to COVID-19
Due to the current pandemic, the Government of Canada has implemented temporary changes to various immigration programs and procedures. For the most up-to-date information, visit canada.ca.
For more detailed information about the requirements under each immigration category, see other sections of Legal Line, or for more information about making a refugee claim, visit Immigration, Refugees and Citizenship Canada. To find foreign consulates and embassies in your province, click here.
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