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Refugee claims in Canada—Options for refused applicants

The term “Refugee” has been a commonly used term for many newcomers to Canada who are told that if nothing else works, the agent/ lawyer will apply for their Refugee Claim to restore their status. In today’s article, we would like to introduce you to the nuances of what a Refugee Claim is and what your rights are as a Refugee, whether you should try for this claim or not and finally will you be able to travel to your home country or bring over your family here.

Let us begin by understanding how Immigration Canada describes a Refugee.

As per the Government regulations on the definition of a Refugee Claimant (also referred to as Asylum Seeker, a term not accepted by some), the following points are to be kept in mind before determining whether a person is a Refugee or not:

  • make a refugee claim at a port of entry or an inland office within Canada. There, they are screened and determined eligible or ineligible to pursue a claim.
  • have status only as temporary residents.
  • have their claim investigated by the Immigration and Refugee Board (IRB). Only if deemed to fit the definition of Convention refugee will they then have the option of applying for Permanent Residency.
  • are eligible to apply for a temporary work permit.
  • can access some, but not all, of the settlement services available to resettled refugees/permanent residents.
  • are eligible for a range of provincial and federal services such as health care, labour market integration programs, community resources and to apply for Employment and Income Assistance (EIA).

Refugee Claim Refused: An Overview of Options for Claimants

If you are in Canada and have had either a refugee claim or a permanent resident application refused, there may still be options for you.

Canada does not want to send people back to a country where they will be in danger or would face the risk of persecution. It is not guaranteed, however, that an applicant will be found eligible under any of these processes.

What are my options if I have been refused a Refugee Claim?

Pre-removal risk assessment

If you are told to leave Canada, you may be able to apply under this process. If so, an officer reviews the documents related to your case and any other evidence.

 

Apply to the Refugee Appeal Division at the Immigration and Refugee Board of Canada

If you received a negative decision on your refugee claim, you may be able to appeal to the Refugee Appeal Division (RAD) at the Immigration and Refugee Board of Canada. But some failed claimants are not eligible to apply. Find out more about the RAD.

 

Apply to the Federal Court of Canada for judicial review

You can ask the Federal Court of Canada to review the decision made on your case.

 

Humanitarian and compassionate grounds

In some exceptional circumstances, people are allowed to become permanent residents under these grounds. (*Visit here next week for a detailed explanation on H&C Application Process)

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Humanitarian and Compassionate Grounds: A Summary

People who would not normally be eligible to become permanent residents of Canada may be able to apply on humanitarian and compassionate grounds.

Humanitarian and compassionate grounds apply to people with exceptional cases. We assess these applications on a case-by-case basis. Factors we look at include:

  • how settled the person is in Canada
  • general family ties to Canada
  • the best interests of any children involved, and
  • what could happen to you if we do not grant the request.

 

Other rules that apply to humanitarian and compassionate grounds:

  • You may only ask for humanitarian and compassionate grounds if you are applying for permanent resident status in Canada, or for a permanent resident visa abroad. We will not look at H&C requests from temporary resident applicants.
  • You cannot have more than one humanitarian and compassionate grounds application at the same time.
  • We will not assess risk factors such as persecution, risk to life, cruel and unusual treatment or punishment.
  • You cannot apply for humanitarian and compassionate grounds if you have a pending refugee claim. If you want to apply, you must withdraw your refugee claim before your Immigration and Refugee Board of Canada (IRB) hearing.
  • You cannot apply for humanitarian and compassionate grounds if you had a negative decision from the IRB within the last 12 months. This is called the “one year bar.” (If the IRB decides your refugee claim is abandoned or withdrawn, that counts as a negative decision.) The bar does not apply if:
  • you have children under 18 who would be adversely affected if you were removed from Canada, or
  • you have proof that you or one of your dependents suffers from a life-threatening medical condition that cannot be treated in your home country.

 

Designated foreign nationals

A group of people who enter or try to enter Canada in a way that is against the law can be considered an “irregular arrival.” This means certain rules and restrictions apply to them.

If you got here as part of an irregular arrival, you are a “designated foreign national.” The Minister of Public Safety will tell you in writing if you are one.

You cannot apply for humanitarian and compassionate grounds until five years have passed since:

  • the day you became a designated foreign national and/or
  • the IRB made a final negative decision on your refugee claim and/or
  • you got a negative decision on a Pre-Removal Risk Assessment.

If you applied for humanitarian and compassionate grounds and then became a designated foreign national, your humanitarian and compassionate grounds application will be suspended for five years from the date:

  • you were designated, or
  • of a negative decision from the IRB, or
  • of a negative Pre-Removal Risk Assessment decision.

 

Removal orders

If you have an order to leave Canada (this is called a removal order), you may be able to apply to stay in Canada on humanitarian and compassionate grounds, unless any of the above restrictions apply to you.

If you apply, this will not prevent or delay your removal from Canada. You must leave on or before the date stated on your removal order. Your application will still be processed even if you have to leave Canada. You will be informed in writing about the result of your application. Applying for an H&C application doesn’t guarantee approval of your application but gives you a chance for a hearing or fighting chance to remain in Canada. In some cases, you can ask the Federal Court of Canada to review the decision.

Remember, you must keep your application up-to-date. If anything changes which may affect your application, it is your responsibility to tell the authorities of the change. This is so that decision-makers have all the information that you want them to consider for your application.

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