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:

  • Educational background
  • 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.

Evidence

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.

Outcomes

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.