Refugee Protection in Canada
How Refugee protection is conferred
Canada’s refugee system is regulated mainly by the Immigration and Refugee Protection Act and consists of the Refugee and Humanitarian Resettlement Program, for refugees seeking protection from outside of Canada, and the In-Canada Asylum Program for person who make their claims from inside the country.
Section 95 of IRPA confers refugee protection
95.(1) Refugee protection in Canada is conferred on a person when
- (a)the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (outside of Canada by a visa officer)
- (b)the Board determines the person to be a Convention refugee or a person in need of protection; (in Canada by the IRB) or
- (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. (PRRA)
(2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4).
Who is a Convention Refugee?
“a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.
(a) is outside each of their country of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
Who is Person in need of protection?
- (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
- (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
- (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
- (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
- (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
- (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
How a Refugee Claims made in Canada?
It may be made
- At the port of entry, or
- At an inland office
- Local IRCC office
- CBSA office
What are the different Pathways to get refugee status in Canada?
- Resettlement from outside Canada
Canada has fostered the resettlement in Canada of refugees and those in refugee-like situations. Candidates are selected while still abroad, and sponsored to come to Canada either by the government or privately (for example, by churches or community groups). There are three categories of refugees or people in similar situations who may be admitted to Canada as permanent residents on humanitarian grounds.
- Convention Refugee Abroad Class
Members of this class must be in need of resettlement (that is, there is no reasonable prospect now or in the near future of another permanent solution for them) and must meet the definition of Convention refugee: they must be outside their own country and have a well-founded fear of persecution for reasons of race, religion, political opinion, nationality or membership in a particular social group. They may be sponsored privately or assisted by the government.
Must be in need of resettlement, there is no reasonable prospect now or in the future of a permanent solution for them, must meet the definition of a refugee and may be sponsored by the government or private sponsors.
- Humanitarian-Protected Persons Class
Members of this class must be in need of resettlement and must meet the criteria outlined in IRPR s.146(1) and 146(2). This class includes persons in similar situations as other Convention Refugees, IRPR s.146(1). This class also includes Humanitarian-protected Persons Abroad, as the Country of Asylum Class, IRPR s.146(1) and a.146(2).
2. Sponsorship of refugees
- Private sponsorship
- Sponsorship agreement holders
- Group of 5
- Community sponsors
- Joint assistance program
How to Make the Refugee Claim?
How can a claim be made originates from s. 99 of theIRPA:
(1) A claim for refugee protection may be made in or outside Canada.
Claim outside Canada
(2) A claim for refugee protection made by a person outside Canada must be made by making an application for a visa as a Convention refugee or a person in similar circumstances, and is governed by Part 1.
Claim inside Canada
(3) A claim for refugee protection made by a person inside Canada must be made to an officer, may not be made by a person who is subject to a removal order, and is governed by this Part.
There are slightly different processes depending on whether claim made at a Port of Entry (POE) or inland. A refugee claim can be made if the claimant is eligible and can be processed if the claim is determined by an officer to be eligible.
(e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or
(f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c).
Inadmissibility check will be done.
If the claim is found eligible, the person will be given:
- a refugee claimant identity document, which includes the Interim Federal Health Program
- a date for a refugee hearing at the Immigration and Refugee Board
- a Basis of Claim (BOC) form to be completed in 15 days
- a conditional removal order
Excluded person as stated in the UNHCR Handbook Article E and F of the Convention.
An excluded person is someone who cannot be considered a “Convention refugee” or a “person in need of protection”. This includes people who have committed a serious, non-political crime outside Canada, a crime against peace, a war crime, or a crime against humanity, and people who are guilty of acts that are contrary to the purposes and principles of the United Nations. It also includes people who do not need protection because they live in a country where they have rights and obligations that are similar to those of a citizen of that country.
PORT OF ENTRY
At the port of entry (on arrival at an airport, land border, or seaport), the CBSA officer will determine whether the claim is eligible. The file would then be referred to the IRB, once all forms and eligibility interview are completed. The IRB’s Refugee Protection Division will assess the claim and make a decision.
INLAND CLAIMS
A claimant may make a claim at any IRCC or CBSA office inland. The person seeking protection goes to the office and is given a date to return for an eligibility interview. They are expected to show up with the forms completed, but would also be given the following forms to prepare and submit to the interviewing officer at a later date, if they don’t have the completed forms.
The following are the forms that must be filled out and submitted for an inland claim:
- Generic Application Form for Canada(IMM 0008) (PDF, 496.57 KB), Principal Applicant only
- Additional Dependants/Declaration(PDF, 424.19 KB), if you have more than five (5) dependants
- Schedule A – Background/Declaration(IMM 5669) (PDF, 776.39 KB), to be completed by the Principal Applicant, their Spouse/Common-Law Partner, and any dependants who are 18 years of age or older, and in Canada
- Schedule 12 – Refugee Claimants Inside Canada(IMM 0008–Schedule 12) (PDF, 1.22 MB), to be completed by the Principal Applicant, their Spouse/Common-Law Partner, and any dependants who are 18 years of age or older, and in Canada
- Basis of Claim Form, to be completed by each family member who is claiming refugee protection in Canada (including minors)
- Document Checklist(IMM 5745) (PDF, 280.05 KB)
- Use of a Representative(IMM 5476), if applicable. (PDF, 648.31 KB)
The person must bring all forms completed back to the eligibility interview. If there are significant gaps in the completion of the forms, the person will be sent away and told to return later with the forms completed.
Otherwise the officer will determine whether the claim is eligible. If the claim is found eligible the person will be given:
- a refugee claimant ID paper, which includes the Interim Federal Health Program
- a date for a refugee hearing at the Immigration and Refugee Board
- a conditional removal order (where appropriate).
- See schedule 2, Paragraph 3(5)(d) – RPD Rules
- Notice of seizure for passport and identification documents
- Notice to appear – hearing date for RPD
No matter where the person makes their refugee claim, they must take all of their identity documents with them! This includes their passport, driver’s license and any other documents which may prove their identity or which may support their refugee claim.
As part of this process, the claimant must provide information about their background and their family and explain why they want to make a claim for refugee protection. This is done by completing the forms that will be provided.
Generally speaking, refugee claims will be heard by the IRB within 60 days unless the person comes from a designated country of origin, in which case their asylum claim would be processed faster.
Basis of Claim (BOC) form
The Basis of Claim (BOC) form replaces the “Personal Information Form” (PIF). It covers many of the same questions as the PIF, including detailed biographical information. It asks questions about the basis of the claim through several questions (rather than asking for a narrative as in the PIF).
The purpose of the BOC Form is to present the refugee protection claim to the RPD. In the BOC Form, you will give details about the claimant’s identity, family, documents and travel history as well as why they are claiming refugee protection in Canada. The questions in the form will help to include the most important parts of the claimant’s life experience.
It is important that you include all the claimant’s important facts and events. It is important that all statements are true.
At the hearing, a member may ask the claimant questions about anything they have included, or not included, in the BOC Form. The RPD will use the information in the BOC Form when it makes a decision about the claim. Therefore, it is important for everything in the BOC Form to be complete, true and correct.
The claimant must sign and date the BOC Form. By signing the BOC Form, they are declaring that the information in it is complete, true and correct.
The form must be completed in English or French.
How long does the Claimant have to submit the BOC Form?
It depends on where the claim was made.
The claim was made at Port of Entry
If the claimant made the claim at a port of entry, they must give an original and one copy of the completed BOC Form to the RPD and CBSA no later than 15 days after the date IRCC or the CBSA sent the claim to the RPD to start the refugee protection process. They can bring the BOC Form to the RPD themselves, or it can be sent by courier. If there are fewer than 20 pages in total, it can also be sent by fax.
Do not send the BOC Form by regular mail. If you fax the BOC Form to the RPD, it will be necessary to provide the original form at the beginning of the hearing.
For POE Claimants, if the BOC is not submitted by the 15-day deadline, an abandonment hearing is scheduled 5 days after the original due date to submit the BOC.
The claim was made at Inland Office
If the claimant made the claim at an inland office, they must give the original completed BOC Form and one copy of it to IRCC or the CBSA officer on the day of the eligibility interview. The interview will be at an IRCC office. IRCC or the CBSA will give the completed BOC Form to the RPD.
The documents you provide must be typed in at least 12 point font or be photocopies of original documents. All documents should be printed on 8½ in. by 11 in. (21.5 cm by 28 cm) paper and all photocopies must be clear and easy to read. Make a list of all the documents you are attaching. The pages of your documents must be numbered consecutively (i.e. 1, 2, 3, 4…) as if they were one document. You can use a Claimant’s Document List Form.
What is Pre-removal risk assessment(PRRA)?
The pre-removal risk assessment (PRRA) allows certain individuals to apply for protection before actually being removed from Canada. For example, a refugee claimant whose claim was rejected by the RPD may make a protection application on the ground that there is new evidence or evidence that it was not possible or reasonable to provide at the original hearing.
In many cases, the test for risk will be broad: the grounds in the Refugee Convention, the Convention on Torture, and the risk to life or the risk of cruel and unusual treatment or punishment.
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