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How to claim refugee status

Region: Ontario Answer Number: 672

Applying for refugee status is a very complicated and important process. To make sure that your application is properly prepared and handled, you should contact an immigration lawyer. If you cannot afford a lawyer, you may be eligible for legal aid through the Ontario Legal Aid Plan.

There is no government fee for making a refugee claim, and processing times vary from one visa office to another. Refugee claims can either be made while the person is in Canada, or if they are outside Canada.

1.  Refugee claims made upon entering or while in Canada

 

At a port of entry

Claimants attempting to enter Canada can apply for refugee status at any port of entry. The officer to whom you make your claim will do two things. First, she or he will issue a removal order requiring you to leave Canada but this will be suspended so long as your refugee claim is active. The removal order cancels any existing visa you may have.

Second, she or he will decide if your claim is ‘eligible’ to be referred to the Immigration and Refugee Board of Canada (IRB) for a hearing. Your claim may be ineligible for instance if: (i) you have already made a refugee claim in Canada; (ii) you have been convicted of, or have committed, a serious crime in your past; or (iii) if you entered Canada via the United States. The eligibility interview, however, does not concern the merit of the refugee claim or whether the officer “believes” you are in need of protection.

If you are admitted into Canada, the officer will complete a number of immigration documents with you during the interview. Be sure to mention all of your immediate family members, including any step-children, in order to ensure they can be included on your permanent residence application if your refugee claim is accepted. She or he will then give you the Basis of Claim form which you must complete and submit to the IRB within 15 days.

At an Immigration, Refugees and Citizenship Canada (IRCC) office

If the person is already in Canada, a refugee claim is made at a designated IRCC office. You must obtain an application package in advance from the IRCC website. In your application, you must provide information about your background, your family, and the reason why you want to make a claim for refugee protection. Be sure to mention all of your immediate family members, including any step-children, in order to ensure they can be included on your permanent residence application if your refugee claim is accepted.

As with refugee claims made at the port of entry, the officer to whom you make your claim will do two things. First, she or he will issue a removal order requiring you to leave Canada but this will be suspended so long as your refugee claim is active. The removal order cancels any existing visa you may have. Second, she or he will decide if your claim is ‘eligible’ to be referred to the IRB for a hearing.

The IRB is an independent administrative tribunal that makes decisions on immigration and refugee matters.

 

IRB hearing

If you are eligible for an IRB hearing, you will have to appear at the Refugee Protection Division (RPD) of the IRB. You will be given a Notice to Appear for a Hearing which will set-out the date, time and place of the hearing. Although most hearings are conducted in-person, under certain circumstances, a videoconference can be held. Most refugee claims are heard within 60 days of the date they are referred by IRCC to IRB but some claims are heard sooner.

At the hearing there is one IRB member, who is the decision-maker. IRB members are generally knowledgeable about refugee applications and the living conditions in the country from which you have fled persecution. But you must submit all evidence you want to rely on, including personal evidence, news reports and medical documentation, to the IRB 10 days before your hearing.

As well, you have a right to have a lawyer or other representative with you.  An immigration lawyer will make sure that you know what will happen at the hearing, and will help to properly prepare your case. Both the IRB member and your lawyer will ask you questions about your application and why you are unable to return to your home country. Although each application for refugee status is evaluated separately, you and your immediate family members will have your separate claims heard together in one hearing.

Hearings are held in either English or French. However, you do have the right to have an interpreter at the hearing, without cost to you. If you have any concerns as to whether you believe the interpreter is interpreting properly, tell your lawyer. You may bring witnesses to your hearing if you think this will help your claim.

Not only can having an immigration lawyer at your hearing help you present your case, but if your claim is rejected, they can help you file an appeal.

While you are waiting for your hearing, you can stay in Canada. You will also be permitted to work in Canada if you apply and are granted a work permit. Once your refugee claim forms are filled in and delivered to the IRB you can request an application to obtain a work permit from IRCC.

 

What happens if your claim is accepted?

After a refugee hearing, the IRB member will decide whether you should be allowed to remain in Canada permanently, or whether you must leave Canada because you are inadmissible.   If your claim for refugee status is accepted, you will receive the status of “protected person”. This means you can stay in Canada and you can apply to become a permanent resident. The member will state his or her decision and the reasons for the decision at the end of the hearing. If they do not, shortly after the hearing, you will be sent a copy of the decision and the reasons by mail.

 

What happens if your claim is rejected?

If your claim for refugee status is rejected and you are found to be inadmissible, it means you may not enter or 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 to appeal 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 in 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.

More information about options if you are refused refugee status is available from IRCC.

If you are found not to be a refugee after your appeal, the removal order issued against when you made your claim will come into force. If you do not have the money to buy a ticket to return to your home country, the Government of Canada will provide a ticket for you. If you plan to try to return to Canada in the future and settle here as an immigrant or a refugee, you will have to repay the cost of your ticket.

 

2.  Refugee claims from outside Canada

Claims for refugee status can be made while the applicant is outside of Canada, to a Canadian visa office, Embassy or High Commission. A Canadian visa officer then decides whether the person meets the requirements of Canada’s Refugee and Humanitarian Resettlement Program, and if the person will be admitted to Canada.

If you are outside Canada, you can claim refugee status in one of two refugee classes:

  • Convention Refugee Abroad Class
  • Country of Asylum Class

Convention Refugee Abroad Class

You can qualify as a Convention Refugee if you are outside your home country, or the country where you normally live, and can’t return to that country because of a well-founded fear of persecution based on:

  • race,
  • religion,
  • political opinion,
  • nationality, or
  • membership in a particular social group, such as women or people with a different sexual orientation.

You must also be:

  • outside Canada, and want to come to Canada,
  • referred by the United Nations High Commissioner for Refugees (UNHCR), another referral organization or a private sponsorship group, and
  • selected as a government-assisted or privately sponsored refugee, or have the funds needed to support yourself and your dependents after you arrive in Canada.

A person making a refugee claim must also show that there is no internal flight alternative. This means that there is no place in their country that they could get to and live safely free from the persecution that they are facing.

Canada relies on the United Nations High Commissioner for Refugees (UNHCR), other referral organizations and private sponsorship groups to identify and refer Convention Refugees Abroad to be resettled in Canada. The UNHCR identifies refugees to be resettled in Canada when there is no other solution or no effective protection available to them.

 

Country of Asylum Class

A person is considered to be a member of the Country of Asylum Class if they are outside their home country and an Immigration Officer determines that they have been, and continue to be, seriously and personally affected by:

  • civil war,
  • armed conflict, or
  • massive violation of human rights.

You must also be:

  • outside Canada,
  • referred by the United Nations High Commissioner for Refugees (UNHCR), another referral organization or a private sponsorship group, and
  • privately sponsored refugee, or have the funds needed to support yourself and your dependents after you arrive in Canada.

As with Convention Refugee claimants, a person making a claim under the Country of Asylum Class must also show that there is no internal flight alternative. This means that there is no place in their country that they could get to and live safely free from the persecution that they are facing.

For more information refer to Immigration, Refugees and Citizenship Canada.

HSBC Bank Canada offers a Newcomers to Canada Program, valued up-to $700 including a $500 Joining Bonus Reward.

A criminal record will delay, and can even prevent you from getting your immigration status. To erase your criminal record, call toll-free 1-800-874-2652 or learn more at Parole Board of Canada. It’s easier than you think.

For legal advice and assistance with your refugee claim, contact our preferred Immigration experts:

Bright Immigration Consultants

Bune Law



Bune Law Immigration ONBune Law Immigration ON

Bright Immigration ALL April 1, 2018Bright Immigration ALL April 1, 2018

PBC Immigration ONPBC Immigration ON




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