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Refugee (Asylum) Claims - Understanding the Process

There has been a lot of news coverage about the influx of refugees (asylum seekers) into Canada via the United States, particularly into Quebec. This post is meant to explore who is entitled to make such a claim in Canada and what claimants can expect.

Eligibility to make the claim

Canada and the US have entered into what's called a "safe third country agreement". Essentially, both countries consider the other to be relatively equal in terms of refugee protection and the refugee process. As such, there is an expectation for claimants to make their refugee claim in the first of these two countries. 

The practical consequence of this agreement is that it prevents individuals crossing from the US into Canada at a land border from making a claim in Canada. 

There are exceptions to this agreement:
  • If the claimant has family in Canada
  • If the claim is made at an in-land office
  • If the claim is made at an airport
There are other eligibility factors as well, but this is the main issue affecting those entering Canada at a land border from the US. The eligibility determination is the first step in determining whether someone will be allowed to make a claim in Canada.

Eligible Claimants

Once a claimant is deemed eligible to make a refugee claim, they are provided a hearing date within 45-60 days depending on where their claim was made. 

Claimants are instructed to complete medical exams, and once that is in the system, they are eligible for open work permits. 

A successful claim

It is imperative that a thorough legal opinion be sought before a claim is made to determine the likelihood of success. A "refugee" or "protected person" is a very specific defined term. Not everyone escaping horrible conditions in their country of origin will meet these definitions. A refugee-type risk is a personal risk to the individual, and one that is not generally faced by the general population. There are a number of grounds of persecution that must be proved to meet this definition. 

A refugee claim is extremely technical and involves complicated legal principles. Corroborating evidence in support of a claim is also crucial. A failure to grasp those issues from the outset can result in disastrous consequences. These are matters that must be thought of and planned as far in advance as possible in light of how quickly hearings are held. 

Claimants really only have one opportunity to prove their case.

Your claim might not meet the legal definitions of Refugees. But maybe you have a humanitarian claim which is a better option. Proper legal counsel is required to assess what is best. 

The Hearing 

A refugee hearing is presided by a Member of the Refugee Protection Division (RPD) who questions the claimant and reviews the documentary evidence. The Member will then render a decision on whether the claimant meets the definition of a Convention Refugee or Protected Person. 

Post-hearing

If the outcome of the hearing is positive, then the claimant can apply for permanent residence. 

If the outcome is negative, an appeal right to the Refugee Appeal Division may exist. Alternatively, a Judicial Review application to the Federal Court might be the only option. 

If no appeals are available (or are unlikely to succeed), then Claimants need to be aware of imminent deportation. Those who entered via the US (having met an exception to the safe third country rule) can be returned to the US. The other option is to remove failed claimants to their country of origin.

This deportation process can happen extremely quickly after a negative decision. The risk of deportation exists for the first 12 months following a negative refugee claim or appeal. 

There is also a 12-month bar to filing a humanitarian & compassionate application (unless there are children or serious medical issues involved). 

These post-hearing risks are something that you must be aware of and forms part of an assessment we do as lawyers to properly advise our clients as to the best course of action. Again, this is what makes an initial consultation vital to the refugee process.


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