Canada provides protection to individuals who cannot return to their home country because of a well-founded fear of persecution or risk of serious harm. Refugee claims in Canada follow a clear legal process overseen by Immigration, Refugee and Citizenship Canada (IRCC), the Canada Border Services Agency (CBSA), and the Immigration and Refugee Board of Canada (IRB). Understanding the procedure, requirements and timelines can help claimants prepare their case with accuracy and care.
Who Can Make a Refugee Claim in Canada
Not everyone can make a refugee claim in Canada. However, if two of the below legal definitions under the Immigration and Refugee Protection Act are met, a person may be eligible to claim refugee protection.
- Convention Refugee: This is for a person that has a valid fear of persecution based on race, religion, political opinion, nationality or membership in a particular social group such as women or people of a particular sexual orientation.
- Person in Need of Protection: This is for persons who face risk to life, cruel or unusual treatment, or punishment or danger of torture, and if returned to their country, no adequate protection is available from their government.
Step 1: Determining Eligibility
The first stage is a determination of eligibility by an officer from either IRCC or the Canada Border Services Agency (CBSA). This is assessed at the time an applicant presents their claim, however, such claim may be found ineligible for several reasons. For example, a person may be ineligible if they:
- have already made a refugee claim in Canada that was refused, withdrawn or abandoned,
- made a previous refugee claim in Canada that was determined to be ineligible,
- already have protected person status in Canada,
- are subject to a removal order,
- have been recognized as a Convention Refugee in another country and can be sent back there,
- have already made a refugee claim in another country,
- have serious criminal convictions,
- entered Canada from the U.S. along the land border (see below).
The Safe Third Country Agreement with the United States also impacts eligibility. Most individuals who arrive in Canada at a land port of entry (including anywhere along the border, rivers, lakes and other waterways) from the United States are not eligible to make a claim. There are specific exceptions or exemptions to this rule, including having close family in Canada.
A refugee claim is an application for protection, it is not a means to simply remain in the country for other reasons. Nevertheless, If the eligibility requirements are met, IRCC will refer such refugee (asylum) claims to the IRB.
The IRB is an independent administrative tribunal responsible for making decisions on immigration and refugee matters. The IRB determines if a refugee (asylum) claim is well-founded and if protection in Canada should be granted.
Step 2: Making the Claim
There are two primary ways to make a refugee claim: at a port of entry or from within Canada. The method of application dictates the immediate next steps.
Claiming at a Port of Entry
This option applies to individuals who make a claim upon arrival at a Canadian airport, seaport, or land border crossing. An officer from CBSA will conduct an interview to determine eligibility. If the claim is deemed eligible, the officer will refer the case to the Refugee Protection Division, or RPD, of the IRB. The claimant will receive a Basis of Claim Form, also known as a BOC form, and instructions on how to submit it. They will also be given a date for their hearing.
Claiming from Within Canada
Individuals who are already in Canada can make a refugee claim by submitting an application online through the IRCC Portal. This process requires a complete application with all supporting documentation. After the application is submitted, IRCC will provide instructions for an Immigration Medical Exam and a biometrics appointment. An officer will then conduct an eligibility interview to verify the information and formally refer the claim to the IRB.
Step 3: Completing the Basis of Claim (BOC) Form
The BOC form is a central document in a refugee claim case. It is a vital document that explains who the applicant is and why they require protection in Canada. In the case of a family, each family member over the age of six must complete their own form.
The form requires a detailed explanation of the reasons for the claim. This includes describing the dangers feared, identifying those with intentions to cause harm, and explaining why protection cannot be found in their home country. It is essential to be complete and truthful. Any inconsistency in the information provided can negatively impact the claim.
The BOC form must be submitted to the IRB within a strict timeframe. For claims at a port of entry, the completed form must be submitted within 45 calendar days after the claim was referred. For inland claims, the BOC form is submitted as part of an online application that has a 90-day completion deadline. Failing to meet these deadlines without a valid reason can respectively lead to the claim being declared abandoned or a requirement to restart the entire process.
Step 4: Preparing for the Hearing
Once the claim is referred to the IRB, a hearing will be scheduled before the RPD. This is where a member, a decision maker from the IRB, will listen to the applicant’s testimony and review all evidence. Hearings are private and confidential.
The hearing is a formal proceeding. The member will ask questions about the information provided in the BOC form. Applicants will be expected to answer these questions directly and honestly. Any documents to be presented as evidence must be provided to the IRB and the Minister’s Counsel at least 10 days before the hearing. This includes identity documents, police reports, and other documents that support the claim. Legal representation is highly recommended to assist with preparing for this hearing. JBLaw Professional Corporation specializes in refugee protection claims (click to find out more).
Step 5: The Decision and Next Steps
Following the hearing, the RPD member will issue a decision. The decision may be announced at the end of the hearing or sent by mail later.
- Positive Decision: If the applicant’s claim is accepted, a “protected person” status will be granted. However, the IRCC or the CBSA may disagree with the RPD decision. If this happens, they may appeal the decision to the Refugee Appeal Division (RAD) or ask for a judicial review of the decision by the Federal Court. They have 15 days from when they get the decision to file an appeal or 15 days from when the decision is sent to them to apply for a judicial review.
If no notice of appeal is received within 15 days from the IRCC or the CBSA, then an applicant can apply for permanent residence in Canada.
- Negative Decision: If the claim is rejected, an applicant may have the option to appeal the decision to the Refugee Appeal Division, known as the RAD, or ask for a judicial review of the decision by the Federal Court. This must be done within 15 days from when the decision was received from RPD, to file an appeal to the RAD, or 15 days from when the decision is sent to apply for a judicial review.
In certain circumstances, applicants may also apply for a Pre-Removal Risk Assessment, or PRRA, which is a review of the risks likely to be faced if removed from Canada.
Conclusion This is a general overview of the refugee claim process. Each case is unique, and the specifics of a claim can alter the required steps and potential outcomes. Seeking professional legal advice on immigration law is a prudent step for any individual considering this process. For informed counsel and professional services, reach out to JB Law Professional Corporation.