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Refugee Claim in Canada

Refugee Protection Claims

Those seeking Canada’s protection can make a Refugee Claim if they are in Canada. A refugee is a person who fears persecution in their home country on the basis of their race, religion, nationality, political opinion, or particular social group. Refugee status can also be established if a person can show a risk to their life or of cruel and unusual treatment or punishment, or a risk of torture in their home country. The risk faced by the refugee must be a personal one, and not one related to a general risk in the home country. The risk must also be one that the police authorities in the home country are unable or unwilling to protect the refugee claimant from.

Refugees must in most instances first enter Canada before making a refugee claim. Refugee claims can generally only be made from outside Canada if the refugee claimant has already obtained refugee designation from the United Nations High Commission on Refugees (UNHCR).

A refugee claim by a person in Canada is made to the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB). The IRB/RPD is an independent government tribunal which acts like a court to decide who will be granted refugee status.

The law distinguishes between refugee claimants who are from designated “safe” countries, and those who are not. Safe countries include the United States, most European countries, and other countries where law and order generally prevail and it is unlikely that a person facing persecution cannot avail themselves of the protection of their own country’s authorities. Refugee claimants from safe countries will be subject to an accelerated refugee claim process and do not have the same appeal rights as other refugee claimants.

The timelines before the RPD are strict and require a refugee to be able to prepare for and attend their refugee claim without delay. A description of the process and time frames is as follows:

  • Claims made at the port of entry have 15 days to provide their Basis of Claim forms to the Refugee Protection Division.

  • Claims made at an immigration office inside Canada must provide their Basis of Claim forms on the same day as the claim is made.

  • If the claimant is from a designated safe country, the Refugee Protection Division will then set a hearing date 30 days after receipt of the Basis of Claim forms for claims made in Canada, and 45 days for claims made at the port of entry.

  • If the claimant is not from a designated safe country, the Refugee Protection Division will set a date for a hearing 60 days from the day the claim was referred to it.

  • Documentary disclosure and witness statements are due to be filed at the RPD at least 10 days before the date of the hearing.

At the refugee hearing the refugee claimant will be questioned by the refugee judge about their claim and their testimony will be considered together with their other evidence, including any documents they have produced to support their claims and any witnesses who have testified in their support. The judge will then decide whether to grant refugee protection, or to refuse it. If the claim is granted the refugee can then apply for permanent residence in Canada. If the claim is refused, the refugee judge will provide his or her reasons for refusal in writing, and the refugee claimant can in some instances appeal the decision to the Refugee Appeal Division, or apply for judicial review in the Federal Court.

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Appeals to the Refugee Appeal Division

Who Can Appeal?

  • Refugee claimants who made their original refugee claim after December 15, 2012, and were refused by the Refugee Protection Division (RPD)
  • The Minister of Citizenship and Immigration Canada (CIC) can appeal a positive RPD decision

What are the Exceptions to who can appeal (i.e., Who Can’t Appeal)?

  • The claimant is from a designated “safe” country of origin (see CIC’s website)
  • The claimant is a designated foreign national (i.e., irregular arrival by boat, etc.)
  • The claimant’s refugee claim was withdrawn or abandoned
  • The RPD found that the claim had no credible basis or was manifestly unfounded
  • The claimant entered Canada via the USA as an exception to the Safe Third Country Agreement
  • The RPD has made a cessation or vacation order against the claimant NOTE: those who fall into the exceptions can still apply for judicial review at the Federal Court.

What is the Procedure?

  • Notice of appeal must be filed with the RAD no later than 15 days after the negative written decision is received from the RPD – 3 copies
  • Appellant’s record is due no later than 30 days after the negative written decision is received from the RPD – 2 copies
  • Record contains the decision, transcripts, evidence used at the hearing, authorities, and a memorandum
  • No new evidence may be submitted unless it didn’t exist or wasn’t reasonably available at the time of the refugee claim
  • If the Minister makes submissions, the appellant has 15 days to file a reply record
  • Applications for extensions of time may be made where deadlines have been missed
  • In most cases a decision will be made on the basis of the documents provided and without a hearing
  • A hearing may be held where the evidence raises a serious issue as to whether the claimant’s credibility should be reconsidered, the evidence is central to the decision, and if accepted would provide a basis to allow the appeal

What are the Grounds for an Appeal?

  • An appeal may be made on a question of fact, of law, or mixed fact and law

What if the Minister appeals?

  • The Minister will serve the refugee with the notice of appeal and the refugee can then file a notice of intent to respond
  • The Minister will then serve the refugee with their record and the refugee will have an opportunity to file their own record in reply

What will be the effect of the decision?

  • The RAD judge can either: (1) dismiss the appeal, (2) allow the appeal and substitute new reasons for decision, or (3) allow the appeal and remit the matter for redetermination by the RPD
  • If there was no hearing the decision will be in writing
  • If there was a hearing the decision may be made orally or in writing
  • A negative decision can be further appealed to the Federal Court within 15 days

While a refugee claimant does not need to be represented by a lawyer or other counsel in order to make an appeal to the RAD, in practice it would be highly unadvisable to attempt to make an appeal without legal representation. This is because appeals invariably entail complex issues of law and fact that cannot be fully or properly addressed without legal training.

The Law Office of Matthew Jeffery has years of experience assisting clients with refugee and appeal matters, and we can assist refugee claimants who require legal representation. Please contact us for further information.

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