Refugee, Appeals and H&C

If you are a person in need of protection or conventional refugee, you may claim asylum in Canada at a port of entry (POE) or in an inland Immigration, Refugee and Citizenship Canada Inland Offices.

In an eligibility interview, The Canada Border Services Agency and the Immigration, Refugee and Citizenship Canada Inland Offices will determine if you are eligible to claim asylum in Canada. Bellow is a visuals from Immigration and Refugee Board describing how the refugee system works in Canada.

Definition of Convention refugees:

A Foreign National is outside their home country or the country they normally live in. They are not able to return because of a well-founded fear of persecution based on:

1. Race
2. Religion
3. Political opinion
4. Nationality, or
5. Membership in a social group, such as women or people of a particular sexual orientation.

Definition of A person in need of protection:

A person in Canada who cannot return to their home country safely. If they return, they would be subject to a:

1. Danger of torture
2. Risk to their life, or
3. Risk of cruel and unusual treatment or punishment.

You are not eligible to claim asylum if you:

1. Have claimed asylum in another country or granted protection
2. You are permanent resident or inhabitant of another country where you can return.
3. Have been granted protected person status in Canada
4. Made a previous claim in Canada for Refugee protection and it was refused, you abandoned or withdrew the claim or you were found ineligible
5. Arrived via the Canada-United States of America border and the Safe Third Country Agreement Applied to you
6. Are inadmissible into Canada on Security grounds, for Serious Criminality or human rights violations

Refugee Appeal

IF a claim is refused, it can be appealed to Refugee Appeal Division (RAD). Appeal can not be made to RAD if:

1. Claimants have come to Canada via the United States (US) through an exception to the Canada‐US Safe Third Country Agreement (STCA)
2. claimants whose applications for refugee protection have been declared to have no credible basis (NCB) or to be manifestly unfounded claims (MUC).

The time limit for filing a RAD appeal is within 15 days of the receipt of the negative Refugee Protection Division decision. An additional 15 days is allowed to complete the RAD record which consists of an affidavit and legal arguments.

RAD determines if the RPD’s assessment of the evidence or credibility was reasonable.

Immigration Appeals

Refused Immigration applications are submitted to Immigration Appeal Division of Immigration and Refugee Board.

Types of Immigration Appeals

Appeals for residency obligations are sometimes triggered at a Canadian port of entry when a person with a permanent resident card may have failed to prove that they acquired the minimum days of residency required to maintain permanent resident status. Other times a visa office disposing of an application for a travel document negatively may trigger a right of appeal to the IAD. Parentsponsorships that are refused (due to lack of money, or health problems) also end up at the IAD. Similarly refused spousal/common-law sponsorships can be appealed to the IAD. Similarly, divorces of convenience (i.e. divorcing your sponsor and then marrying another person) comprise part of the IAD’s caseload.

Some cases at the IAD are presented with the option of alternative dispute resolution) ADR) such as spousal sponsorship cases. ADR is an informal meeting and the goal is to try to settle a case without the need for a formal hearing.

These appeals are not easy and are time consuming as well as costs money. The best advice to avoid this hassle is to not do your applications on your own if you are not fully knowledgeable about the processes and contents unless your case is extremely straightforward.

Humanitarian and Compassionate grounds Application

Persons who may be suitable for filing application under Humanitarian & Compassionate grounds include:

1. Who may have lived in Canada for a long period and have acquired a significant degree of establishment in Canada
2. Who have been excluded from being a member of the family class due to the failure of their putative sponsor to declare their existence or have them examined (see s.117(9)(d) of the Immigration Refugee Protection Regulations);
3. Who may have certain criminal background which makes them inadmissible to Canada;
4. Who may have a medical issue making them inadmissible to Canada;
5. Who may practically speaking be part of a family without the legal status of family member (i.e. De facto Family member).
6. Who may not be sponsored or not eligible to apply under any of the immigration program

During the assessment of a Humanitarian & Compassionate application, Immigration officers are supposed to assess the best interests of a child based on the minister’s guidelines, and  policy.  Other relevant factors include economic establishment in Canada (or the likelihood of economic establishment in Canada), potential for hardship in the country of origin, whether hardship may arise from separation of relatives, ties to Canada, and any other unique circumstances.

Humanitarian and Compassionate grounds may not be applicable under the following circumstances:

1. Persons who have submitted a refugee claim. To apply for an H&C, applicants would have to withdraw their refugee claim before their IRCC hearing.
2. Persons who have received a negative decision from IRCC in the last 12 months. (A rejected refugee claim counts as a negative decision.) The one-year bar, however, does not apply to:

• applicants with children under 18 who would be adversely affected should the applicant be removed from Canada.
• persons with proof of a life-threatening medical condition that cannot be treated in their country of origin.

3. Persons who withdrew a refugee claim within the last 12 months.
4. Persons recognized as Designated Foreign Nationals or considered “irregular arrivals” into Canada. Such persons cannot apply for humanitarian and compassionate grounds for a period of 5 years.