If you are in Canada and have had your refugee claim application refused, some options may be available for you. However, there is no guarantee that any applicant is eligible for these processes or will be successful even if they are eligible. Experienced immigration and refugee lawyers can assist you to have the best chances of overturning your refused refugee claim.
At the end of the day, Canada cares for the safety of at-risk individuals and the law generally does not allow Canada to send individuals back to a country where their life is in danger or they risk prosecution.
Refugee Appeal Division at the Immigration and Refugee Board of Canada (the “IRB”):
When an individual receives a negative decision on their refugee claim, they may be able to appeal their case to the Refugee Appeal Division.
The Refugee Appeal Division:
- Gives most applicants a chance to prove that Refugee Protection Division was wrong in fact or law or both, and
- Allows new evidence to be introduced that was not available at the time of the process.
The appeal is paper-based with a hearing in some exceptional circumstances, and Governor in Council (GIC) does the process.
Failed claimants not eligible to appeal to RAD include the following groups of peoples:
- those with a manifestly unfounded claim as decided by the IRB;
- those with claims with no credible basis as decided by the IRB;
- claimants who are subject to an exception to the Safe Third Country Agreement;
- 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;
- individuals who arrive as part of a designated irregular arrival;
- individuals who withdrew or abandoned their refugee claims;
- those cases in which the Refugee Protection Division at the IRB has allowed the Minister’s application to vacate or cease their refugee protection;
- those with claims deemed rejected because of an order of surrender under the Extradition Act; and
- those with decisions on PRRA applications
However, these individuals can still ask the Federal Court to review their refused refugee application.
Pre-Removal Risk Assessment (“PRRA”):
This assessment is a step that the government has to perform before any individual is removed from Canada. The goal of the PRRA is to ensure individuals aren’t sent back to a country where they would be:
- In danger of torture;
- At the risk of prosecution; and
- At risk of losing their life or of suffering cruel and unusual treatment or punishment.
Eligibility for the PRRA:
A Canada Border Services Agency (“CBSA”) officer tells individuals if they are eligible for the PRRA process after the removal process has started. The CBSA officer only checks individuals’ eligibility after the removal process begins. The officer also checks to see if a 12-month waiting period applies to the individual.
In the majority of cases, a 12-month waiting period applies to the individual if:
- The individual abandon or withdraws their refugee claim, or Immigration and Refugee Board (IRB) rejects it.
- The individual abandons or withdraws another PRRA application, or the Government of Canada refuses it.
- The Federal Court dismissed or rejects the individual’s attempt to have their refugee claim or PRRA decision reviewed
If the 12-month waiting period applies, individuals will not be eligible to submit a PRRA application until the waiting time is over.
Canada has an information-sharing agreement with Australia, New Zealand, the United States, and the United Kingdom. If an individual makes a refugee claim in these countries, they cannot be referred to the IRB but may still be eligible for a PRRA.
Individuals cannot apply for PRRA if they:
- Made an ineligible refugee claim because of the Safe Third Country Agreement – an agreement between Canada and the U.S. where individuals cannot claim refugee or seek asylum coming to Canada from the U.S. (unless they have family ties in Canada). They will be returned to the U.S.
- Are a convention refugee in another country.
- Are a protected person and have refugee protection in Canada.
- Are subject to extradition..
How To Apply:
The CBSA officer will provide the application and instructions. The form must be completed and submitted in:
- 15 days, if the form was given in person
- 22 days, if the form was received in the mail
With the application, individuals must include a letter explaining the risk they would face if they leave Canada and documents or evidence to demonstrate the risk.
When applications are evaluated, sometimes there may be a scheduled hearing if:
- An issue of credibility needs to be addressed in the application
- The only reason an individual is not eligible to have their claim referred to the IRB is that they claimed asylum in a country with which Canada has an information-sharing agreement.
If the application is accepted, an individual becomes a protected person and can apply to become a permanent resident.
If the application is rejected, the individual must leave Canada. If they disagree with the decision, they can apply to the Federal Court of Canada for a review. They must still leave Canada unless they ask the Court for a temporary stay of removal.
Federal Court of Canada for Judicial Review:
Under Canada’s laws, individuals can ask the Federal Court of Canada to review immigration decisions.
There are important deadlines to apply for a Judicial Review. If the IRB rejects an individual’s claim, they must apply to the Federal Court within 15 days of the IRB decision. A judicial review has two stages:
- Leave stage
- Hearing stage
Stage 1: Leave
The Court reviews the documents about the case. The applicant must file materials with the court showing that the immigration decision was unreasonable, unfair, or if there was an error. If the Court gives leave, then the decision is examined in depth at hearing.
Stage 2: Hearing
At this stage, the applicant can attend an oral hearing before the Court to explain why they believe the IRB was wrong in their decision.
If the Court decides that the IRB’s decision was reasonable based on the evidence before it, the decision is upheld and the individual must leave Canada.
If the Court decides the IRB’s decision was unreasonable, it will set the decision aside and return the case to the IRB for reconsideration. This does not mean the decision will be reversed.
If you have applied for refugee status in Canada and your decision has been refused, it is in your best interests to retain the services of experienced and highly-rated lawyers such as the team at Pax Law Corporation to represent you in your appeal. An experienced lawyer’s assistance can increase your chances of a successful appeal.
By: Armaghan Aliabadi
Reviewed by: Amir Ghorbani & Alireza Haghjou