Many individuals from all over the world seek protection from persecution, risks of cruel or unusual treatment and/or risks to their lives. We have expertise in the nuances of refugee protection in Canada, and are proud to assist refugee claimants of all backgrounds and nationalities seek protection.
Initiating a refugee claim
A person in Canada must make a claim to an officer who will assess whether they are eligible to do so. Claims can either be made upon arrival at a Port of Entry (e.g. border crossing or international airport) or once a person is already inside Canada. Inland claims are either made to an immigration officer at an Immigration, Refugees and Citizenship Canada (IRCC) office or to a Canada Border Services Agency (CBSA) officer upon detention. No matter where or when an individual initiates a refugee claim, the process can be daunting and the timelines for filling out the required forms and gathering the necessary supporting documents can be extremely tight.
The immigration officer to whom a claim is made will make a determination of eligibility, and either find the claim ineligible or refer the claim to the Immigration and Refugee Board (IRB). An individual may be ineligible to make a claim for a number of reasons including if they have made a claim in the past, have been issued a removal order or are inadmissible on grounds of security or serious criminality. Claims cannot be made at a port of entry at a land border with the United States unless the individual falls into an exception in the Safe Third Country Agreement between Canada and the United States.
There are two sets of forms that must be provided in the course of initiating a refugee claim – the eligibility forms and the Basis of Claim form. The eligibility forms consist of a detailed set of forms including extensive biographical and background information about the claimant and their family members, including:
- Personal history for last 10 years (employment, studies, travels, etc.)
- Address history for the last 10 years
- Military history, government positions
- Membership in organizations
- Method and exact route of travel to Canada, details of how travel was facilitated
- History of arrests, detentions or interactions with police and state authorities
The Basis of Claim form requires detailed information on the various elements of the claim. In addition to background information about departure from the country of origin and personal information, the form requests details on the elements of the claim in addition to aspects such as attempts to obtain state protection or possibilities for safe refuge within the country of origin. Omissions or inconsistencies between the information on the forms and other documentary evidence or oral testimony can have a negative impact on a claimant’s credibility.
Once a claim for refugee protection has been initiated, a hearing before the Refugee Protection Division of the IRB will be scheduled. The timing of the hearing depends on where the claim was made and the claimant’s country of origin. Refugee hearings are not open to the public and all information disclosed at the hearing will be kept confidential. If necessary, an interpreter will be available at the hearing.
We have extensive expertise representing refugee claimants of diverse nationalities and cultural backgrounds before the Refugee Protection Division of the Immigration and Refugee Board. Our expertise includes, but is not limited to, religious minorities, LGBTQ+ individuals, individuals fleeing political persecution, and women fleeing domestic violence. We are also able to assist refugee claimants who are facing a Ministerial intervention in the context of their refugee hearing.
A refugee claimant must establish that they are in need of Canada’s protection. In particular, Convention refugees are those individuals who are found to have a well-founded fear of persecution based on their race, religion, nationality, membership in a particular social group (including gender and sexual orientation based groups) and/or their political opinion. A claimant could also be found to be a “person in need of protection” if they would be personally subjected to a risk of torture, a risk to their life or a risk of cruel and unusual treatment in their country of origin.
The onus is on the claimant to provide credible evidence with respect to each of the aspects of their claim. Proof of identity, both in terms of personal identity and elements relevant to the particular claim such as religious, professional or political affiliations are crucial in almost all cases. The claimant will also be expected to present documentary evidence such as police files, court records or medical records that corroborate the allegations of risk. The claimant will usually need to present evidence of conditions in their country of origin.
All evidence must be presented at least ten days before the hearing and translated into English or French. In addition, the Board will also have before it any documents provided by the Minister and a copy of the current National Documentation Package compiled by the Board for the country in question.
Engaging with issues like state protection or internal flight alternative can be complex, often requiring a claimant to engage with detailed evidence on country conditions. While the claimant may have a lived experience of the corruption and unreliable nature of the authorities in their country of origin, the Board will often prefer the “objective” evidence contained in reports from various international and governmental organizations. The ability of a claimant to effectively review hundreds of pages of detailed country condition documentation is often very limited, even in cases where they can read English.
Claimants will have the opportunity to apply for permanent residence if their refugee claims are successful. If a refugee claim is rejected, the claimant may have access to the Refugee Appeal Division of the IRB or to the Federal Court.
Refugees and Protected Persons – Overseas Refugee Applications
The Canadian refugee system works differently for people seeking refugee protection from outside Canada than for those who seek protection from within Canada. Refugees overseas can seek protection by applying to come to Canada in one of two ways:
- Government Assisted Refugee – The United Nations High Commissioner for Refugees (UNHCR) and other referral organizations can recommend refugees for resettlement in Canada. Recommendations are made in accordance with the organizations’ own policies and then assessed by a Canadian visa officer. If the application is accepted, the Canadian government covers the cost of the resettlement.
- Private Refugee Sponsorship – Groups of five individuals or community organizations in Canada can submit an application to sponsor a specific refugee or refugee family to come to Canada. The individual(s)/group are then responsible for the costs associated with resettlement, typically for a one year period from the person’s arrival in Canada or until the refugee becomes self-sufficient, though in rare cases the commitment may be for longer.
Sponsorship Agreement Holders (“SAH”) across Canada have signed an agreement with the Minister of Immigration, Refugees and Citizenship to resettle refugees from abroad through the Private Sponsorship program. These groups, which include churches and charitable groups, submit the majority of refugee sponsorship applications and represent the majority refugee sponsors in Canada. They can act as sponsors themselves or assume/share the overall responsibility and liability for managing the sponsorship agreement on behalf of private citizens or ‘Constituent Groups’, usually in return for a fee. They can assist with paperwork completion, application advice and ensuring the sponsors have the means to support the refugee.
A Blended Visa Office-Referred Program also exists, where refugees identified for resettlement by the UNHCR are matched with private sponsors in Canada and the Government of Canada and the private sponsor act in partnership to split the provision of financial support.
To qualify for resettlement, the refugee must:
- Be outside their country of nationality and outside Canada; and
- Face a well-founded fear of persecution in their home country based on race, religion, political opinion, nationality, or membership in a particular social group, such as women or people with a particular sexual orientation (Convention Refugee Abroad Class).
- Or have been, and continue to be, seriously and personally affected by civil war, armed conflict, or massive violations of human rights (Country of Asylum Class – must be privately sponsored or self-supporting to be eligible under this class).
- Be recognized as a refugee by the UNHCR or the country of asylum, or be specifically exempt from this requirement (as Syrians and Iraqis are as of September 19, 2015, and sponsorships by a SAH are).
- Meet medical and security and criminality screening checks.
The refugee is not eligible if:
- They have another secure offer for protection, such as an offer to be resettled in another country;
- They became a national of another country and have the protection of that country;
- They chose to return to live in the country they had left; or
- The reasons for their fear of persecution no longer exists.
The Application Process
The private refugee sponsorship application forms are available on the Immigration, Refugees and Citizenship Canada (IRCC) website. They must be carefully completed and signed by the sponsor(s) and the refugee applicant(s), if applicable, and then submitted with any necessary supporting documents to the IRCC Centralized Processing Office in Winnipeg (“CPO-W”). An officer at the CPO-W will then review the application for completeness and will process the eligibility of the private sponsor(s). This can take many months.
The sponsor can chose a specific person to sponsor (for example, a relative or someone they know) or, once their sponsorship application is approved, they can apply to sponsor a “visa office referred” individual from profiles of refugees already approved by Ottawa.
If the sponsorship undertaking is approved, the application is mailed to the visa office covering the region where the refugee is living for overseas processing of the refugee’s permanent residence application. The visa office pre-screens the application for eligibility requirements and then conducts an interview to determine if the applicant is a member of the Convention Refugees Abroad or Country of Asylum class. The office then assesses the applicant’s ability to establish and conducts admissibility checks. When a final decision is made, the office issues a permanent resident visa, arranges medical/transport loans as necessary, and then makes travel arrangements for the refugee(s). Each overseas office has a different processing time and this stage can take anywhere from 2 to 6 years.
Although costs can vary dramatically, IRCC estimates the cost of privately sponsoring a single refugee to be around $13,000 and a family of four to be around $30,000 (though something like unforeseen medical costs not covered by the Interim Federal Health plan could appreciably impact this number). The sponsorship costs cover housing, clothing, food and living expenses of the person sponsored. The sponsors are also responsible for emotional and logistical resettlement support, such as helping the refugees find work and housing, settle into the community, and begin to learn the local language and Canadian customs.
It is important that both sponsors and refugees realize that this undertaking is a long-term resettlement plan, not an immediate solution.
Many refugee claimants who have received negative decisions are eligible to file either an appeal or an application for judicial review of that decision. Our firm has represented many individuals for purposes of appeals of a negative refugee decision, or in response to a Minister’s appeal. We also have extensive experience in applications for judicial review of unfavourable refugee decisions.
Loss of Refugee Status
The law surrounding the loss of protected person status changed significantly with the passage of the “Protecting Canada’s Immigration System Act” in December 2012.
A protected person could face loss of their status through vacation if the status was originally obtained by misrepresenting or withholding material facts. Even under the previous legislation, vacation of protected person status also led to automatic loss of permanent resident status with no appeal to the Immigration Appeal Division. An individual could even face revocation of citizenship on the same grounds that led to a vacation finding, as their permanent residence would presumably have been obtained by misrepresenting or withholding material facts.
A refugee or protected person could face loss of their status through cessation if events have demonstrated they no longer need protection. No suggestion or implication of misrepresentation is required, and in fact would not be relevant to a finding of cessation. There are several situations in which a person’s refugee protection will be found to have ceased, in particular if a protected person:
- Has voluntarily re-availed themselves of the protection of their country;
- Having lost their nationality, have voluntarily re-acquired it;
- Have acquired a new nationality, and enjoys the protection of the country of the new nationality;
- Has voluntarily re-established themselves in the country which they left; and/or
- The circumstances in connection with which they were recognized as a refugee have ceased to exist.
- The most significant change with changes to cessation now allow for the loss of permanent residence once a cessation decision is made under the first four grounds set out above.
Any protected person who has returned to their country of origin at any time since obtaining their status or who has traveled using their national passport should speak to competent counsel before having any further interactions with immigration authorities, including entering Canada at a port of entry. The consequences of a cessation proceeding can be devastating, and it is important to get good advice as early as possible in the process.
A refugee or protected person could also face loss of their status if they are found to be a danger to Canada. The Danger application process is complex and can be lengthy. During this process the Minister will balance the danger a person poses to the Canadian public and to national security, against the risks a protected person faces if removed from Canada. Humanitarian and compassionate considerations can also be taken in account in this decision.
Before facing removal from Canada, many individuals are eligible to file an application for a pre-removal risk assessment, or PRRA, the outcome of which can result in the ability to remain in Canada long-term. We have particular expertise in assisting individuals in filing PRRAs, as well as making applications for judicial review of unfavourable PRRA decisions.