Refugee / Asylum Claims
Discover your legal options to remain in Canada permanently.
Each year, millions of people from around the world are forced to flee their homeland to escape persecution, war, or severe human rights abuses. Canada helps those in need through our asylum and resettlement programs.
In 2021, Canada devised 3 new initiatives for refugee settlement, raising its protected persons intake cap from 23,500 to 45,000. So far this year, Canada has welcomed 17,900 protected persons into the country.
The Canadian refugee system comprises two classes: Protected Person and Conventional Refugees. According to articles 95, 96, and 97 of the Immigration and Refugee Protection Act (IRPA), refugees are individuals who involuntarily leave their countries due to serious human rights violations or abuse or have a well-founded fear of being persecuted for reasons such as race, religion, nationality, membership of a particular social group, or political opinion.
This class is defined by the United Nations Convention relating to the Status of Refugees: A person may be considered as a refugee due to the following well-founded fear of persecution:
- Political opinion;
- Nationality; or
- Being part of a social minority.
This class is devised for people in need of protection in Canada: A person may qualify for protection based on the established fears that if returning to their country of nationality or habitual residence results in:
- Torture or substantially grounded danger;
- A risk to life; or
- A risk of cruel and unusual treatment or punishment.
Refugee Application Process
Refugee applications can be made through resettlement programs (e.g. government-assisted refugee program, GAR) upon arrival at any ports of entry, or inland visa offices.
The file of an eligible refugee claimant will be sent to the Immigration and Refugee Board (IRB), an independent tribunal in Canada. The applicant will be asked to attend a refugee hearing and at that time, and it is Refugee Protection Division (IRB-RPD)’s responsibility to determine whether the claimant can be granted protection from Canada.
Simply put, the claimant becomes a protected person and is then eligible to apply for Canadian permanent residence inside Canada if the IRB recognizes the claimant is a genuine refugee.
However, if the application has received a negative decision (e.g. rejected, abandoned, or withdrawn), then it is time to appeal the decision to the Refugee Appeal Division (RAD) or even for a judicial review from the Federal Court of Canada. A removal order will be issued if the claimant does not succeed in Federal Court, and they may apply for a Pre-Removal Risk Assessment (PRRA) in order to demonstrate whether it is safe to go back to their home country.
Refugee Appeal Division
If one’s refugee claim is rejected, he/she might have a chance to appeal to the Refugee Appeal Division (RAD). However, individuals are not allowed to appeal if they:
- have a manifestly unfounded claim as decided by the IRB
- have claims with no credible basis as decided by the IRB
- are subject to an exception to the Safe Third Country Agreement
- have claims referred to the IRB before the new asylum system comes into force and re-hearings of those claims as a result of review by the Federal Court
- arrive as part of a designated irregular arrival
- withdrew or abandoned their refugee claims
- have cases in which the RPD has allowed the Minister’s application to vacate or cease their refugee protection
- have claims deemed rejected because of an order of surrender under the Extradition Act
- have decisions on PRRA applications
If individuals are not eligible to appeal at RAD, they can also apply for judicial review at the Federal Court. Appeals are complicated and preparing on your own would be difficult, thus we highly recommend speaking with professional counsel about options as claimants will only have 15 days to prepare for a judicial review.
1. Day 15: Notice of Appeal
The Notice of Appeal is due within 15 days of getting the written reasons. Appellants should submit three copies to the RAD, listing every family member who is a part of your claim, or submit separate forms.
2. Day 30: Appellant’s Record
An Appellant’s Record is due within 30 days of getting the written reasons, which will include all of the materials and written submissions that are to be considered for the appeal in a specific order.
Preparing supporting documentation and submissions require comprehensive knowledge and there are specific rules that need to be followed. An experienced counsel may even help clients to appeal without a hearing.