Frequently Asked But Hardly Answered Questions About Refugee Claims In Canada

  1. Can I apply for refugee protection while outside of Canada?

To come to Canada as a refugee, you must be referred either by the United Nations Refugee Agency (UNHCR), a designated referral organization, or a private sponsorship group in Canada. You cannot apply directly to the Canadian immigration authorities to accept your application as a refugee while being outside of Canada.

  1. I am currently residing in the USA as a tourist (or without any legal status). Can I come to Canada and apply for refugee protection?

Yes, if you hold a valid Canadian visa or do not require a visa to enter Canada.

If you do not have a valid visa to Canada and wish to apply for refugee protection at the US-Canadian land border, you can only apply if:

  • You are younger than 18 years old and unaccompanied by your parents or legal guardian, you are unmarried, and your mother, father or legal guardian is in Canada or the USA; OR
  • You have a family member in Canada, who is either a citizen, permanent resident, student, refugee, or have refugee application pending. For this exception, a family is defined to include:
    • Parents (including legal guardians);
    • Grandparents;
    • Uncles and aunts;
    • Children;
    • Grandchildren;
    • Nieces and nephews;
    • Spouse or common-law partner.

For all others who do not fall within one of the above exceptions, they will be rejected entry by Canada without ever being able to present their refugee claim. Canada declared the USA a safe country for refugees and closed the door on most refugee claimants at the US-Canada border.

  1. I heard many people crossing from the US into Canada illegally to make a refugee claim in Canada. How do the Canadian authorities treat such illegal arrivals?

In recent years, many people crossed the US-Canadian border irregularly to claim refugee protection in Canada. They do so to avoid being sent back to the US. International and Canadian law protect the rights of refugees to flee to safety, including if necessary by entering a country in violation of immigration laws. In Canada, refugees are not penalized for entering the country in breach of immigration laws if they are seeking safety.

However, refugee claimants who cross irregularly must note that they would probably spend several weeks without access to government services, including health care until they make their refugee claim inland.

  1. I already applied for refugee protection in another country, can I apply for refugee protection in Canada?

You may apply for refugee protection in Canada if your refugee claim had either been rejected or still pending. Also, when your refugee claim is heard in Canada, the Immigration and Refugee Board will take into account information about your prior claim in another country, or the fact, that no claim was made. The information will be weighed alongside all other relevant information on whether or not you are a refugee.

  1. I used fake documents while applying for the Canadian visa, would it be detrimental to my refugee case?

In Canada, asylum seekers are not penalized for entering the country in breach of immigration laws if they are seeking safety. However, it is important to let your lawyer know immediately which documents that you used to obtain your Canadian visa were not genuine. You will have to disclose this information during your refugee application. Your lawyer will probably include an explanation in your Basis of Claim form narrative about the use of fraudulent documents to obtain the Canadian visa.

The Immigration and Refugee Board will take into account your explanations regarding the use of fraudulent documents. This information will be weighed alongside all other relevant information on whether or not you are a refugee.

  1. Can I work while my case is pending?

Yes. Once you have been found eligible to make a refugee claim, you can apply for a work permit (it may take months to receive it). Those who have no other means to support themselves can apply to the province of residence for social assistance while waiting for a work permit.

  1. I received a negative decision on my refugee claim. What should I do now?

If you received a negative decision on your refugee claim, you may be able to appeal the decision to the Refugee Appeal Division (RAD) at the Immigration and Refugee Board of Canada. But some failed claimants are not eligible to apply. Your Notice of Decision will tell you if you can appeal to the RAD. There is a 15-day deadline for filing a ‘notice of appeal’ with the RAD.

If you do not have the right to appeal to the RAD, you may be able to apply to the Federal Court for a judicial review of the decision. There is a 15-day deadline for starting an application in the Federal Court.

If there has been more than 1 year since you received your negative decision from the Refugee Board of Canada and you are told to leave Canada, you may be able to apply for pre-removal risk assessment. An officer will review the documents related to your case and any other new evidence to decide if you should stay in Canada.  You may also apply to stay in Canada permanently under humanitarian and compassionate grounds.

  1. I received a positive decision from the RPD, how soon can I bring my family to Canada?

According to last available data, it takes on average 25 months for processing permanent residence applications of refugee claimants, who received a positive decision from the IRB. Also, according to the latest data, it takes around 38 months for their family members’ applications to be processed.

  1. Is there any way to speed up my PR application or bring my family to Canada faster?

In exceptional circumstances, when the dependent family members are at risk in their home countries, the IRCC may expedite the processing of permanent residence applications of the protected individuals and their family members.

  1. I am from the country that was designated for expedite processing. Does it mean that I will not have a refugee hearing?

Expedited processing does not mean that all refugee claimants from the designated countries automatically become refugees or that all claimants from the designated countries only need to submit their papers to the government for approval to acquire protected status.

The IRB will review claims from designated countries and make a decision if the claim is suitable for expedited processing. If, after reviewing the file, the IRB determines that your claim is not applicable for an expedited positive decision, the claim will proceed to a hearing.

You or your lawyer cannot request the Board to select your case for expedite processing.  The decision to expedite a claim is based on two things: the facts and evidence provided in support of your claim. The IRB will make an independent decision about whether it has any questions related to your claim.

  1. I am a refugee claimant, and I need a need a lawyer to help me with my refugee claim. I have limited financial resources, what are my options?

You have two options: you can choose to retain a lawyer privately or apply for a Legal Aid Certificate to cover your lawyer’s legal fees. There is no standard fee that lawyers charge for their representation, and the retainer arrangement is dependent on a variety of factors, which include years of experience and complexity of issues. Some lawyers may have their rates too high, while other lawyers’ rates will be within an affordable range. This is a personal decision for each client.

Legal Aid was created by the government to ensure that all refugee claimants, regardless of economic status, can retain a lawyer of their choosing. If you are unable to afford a private counsel, you can submit a Legal Aid Certificate application. If granted, you will be given a Legal Aid Certificate which then can be presented to any lawyer who accepts Legal Aid Certificates. However, please note that Legal Aid usually covers around 16 hours of lawyer’s work on your case. Therefore, you must make sure that you use your lawyer’s time wisely.

Our firm has special fee options for low-income individuals who do not qualify for legal aid. Make sure to let us know if you require this option when booking an appointment or asking for a quote.

  1. My refugee hearing date was postponed, what can I do to get a new hearing date?

With the significant increase in new refugee protection claims the Refugee Protection Division (RPD) of the IRB had to remove a certain percentage of hearings from its schedule as it does not have the capacity to hear them. From February 2018, the Board changed its scheduling practice for refugee hearings and will now be hearing claims primarily in the order in which they were received (first come, first serve basis).

The Board will make exceptions for priority claims (such as unaccompanied minors or other vulnerable persons). It may also make exceptions for certain claims or groups of claims where the Board decides to implement specific scheduling strategies to ensure the integrity and efficiency of the refugee determination process.

If you believe that your claim may fall under one of the exceptions for priority claims, you may contact the IRB and request a priority hearing and always notify your lawyer.

  1. I believe my refugee claim is a strong one and I do not need a lawyer. Can I represent myself?

Yes, you can, but we advise you to retain a lawyer preferably before you apply for refugee protection in Canada. The refugee definitions are complex, and gathering appropriate evidence is difficult.

A lawyer will help you to understand the legal meanings of “Convention Refugee” or a “Person In Need of Protection” and what parts of your experience are relevant and important to include in your Basis of Claim Form. The lawyer will also advise you what evidence you should gather to support your case and will represent you at your hearing.

  1. What can I do to be better prepared for my refugee hearing?

Even if you have a lawyer, we recommend our clients to stay personally active and engage in every step of the process, including drafting narrative for the Basis of Claim form, gathering evidence, reviewing documents and country condition and preparing to testify.

Also, you can take the following steps to be better prepared for your hearing day:

  • Meet with your lawyer regularly and have at least 2 hearing preparation sessions to understand the hearing process, potential legal issues that are most important to your refugee claim and how to testify during the hearing.
  • Review all your documents carefully and make sure that you understand how your evidence supports your refugee claim. Also, ensure that all your identity documents and relevant evidence (e.g. documents, videos, articles, etc.) have been translated into English or French, and submitted to the IRB-RPD, at least 10 days before your hearing. If new incidents occurred or new evidence became available, even within 10 days of your hearing, have the new evidence translated and submit them through your lawyer as soon as possible.
  • Re-read your Basis of Claim Form, checking that the information is correct and complete. If you find errors or missing details, notify your lawyer immediately.
  • Prepare all the paperwork for your refugee claim ready to take with you to your hearing (including all original identity documents, original copies of evidence that you have submitted, a copy of the Basis of Claim and CIC forms, and copies of all communication and documents from CBSA, CIC, and IRB-RPD).
  • Decide if you want to bring an observer (friend, family, support person) to your hearing to support you. If you have decided to invite an observer, let them know the time, date, and location of your hearing.
  • Arrange childcare, if you have children. The IRB-RPD Member has to see your children at the beginning of the hearing.
  • Be prepared for your hearing and make sure that you can explain why you are afraid to return to your country. You can practice answering questions with your lawyer, a family member or a friend.
  1. Can I invite my family members to visit me in Canada while my refugee claim is pending?

You can invite your family members to visit you in Canada, while your refugee claim is still pending. However, your family member’s visa application will likely be refused. One of the factors that Visa Officers are obliged to consider when processing temporary residence visa applications are whether or not your family member is likely to leave Canada at the end of authorized practice. When you have a pending refugee claim (or even shortly after acceptance of your refugee claim), it would be challenging to convince the visa officer that your family member plans to return to the country from which you have been seeking protection in Canada.

  1. I have a temporary status in Canada and do not want to return to my home country where I believe I will face severe difficulties. However, I am hesitant to apply for refugee protection. Is there another way to stay in Canada permanently?

Yes. You may want to consider an application for permanent residence on humanitarian and compassionate grounds (H&C application). To be successful in this application, you must usually show that you are likely to face serious hardship in your home country and that you have established in Canada or have ties to Canada.

There are some factors that the immigration officer will consider when assessing your H&C application, including:

  • the best interests of a child affected, if there is a child who would be directly affected, should you return to your home country;
  • how established or settled you are in Canada;
  • your ties to Canada, including family ties;
  • what would happen if family members were separated;
  • your physical health or mental health concerns;
  • hardship or difficulties you may face if you return to your own country.

The decision on an H&C application is “discretionary”. This means that immigration officers have a lot of freedom in deciding these applications. But they must base their decisions on the evidence, and they must consider all of the evidence as a whole when deciding whether the application is strong enough.

Please note that H&C applications are not the same as applications for refugee protection.

Differences between an H&C application and a refugee claim

 

Factors H&C Applications Refugee Claims
Decision-Maker & the Process H&C applicants do not have a hearing. They submit a paper application to the immigration authorities, and the IRCC usually decides based on the written application. Refugee claims are heard and decided by the Immigration and Refugee Board of Canada.
Legal test: what needs to be established for a successful outcome? The establishment in Canada (usually, work history, or education or strong family relationships, the presence of children in Canada) and hardship (discrimination, poverty etc.) in the home country Risk of persecution or danger of torture, a risk to life, risk to life or a risk of cruel and unusual treatment or punishment.
Right to Stay in Canada, while an application is in process Making an H&C application does not give an applicant the right to stay in Canada until the IRCC decides. However, the applicants may be able to extend their legal status in Canada while their H&C application is in process. A refugee claimant can stay in Canada until the IRB decides their claim.
Right to work or study while an application is pending An H&C applicant can only get permission to work or study after their application is approved at the first stage. Most of the refugee claimants who are waiting for the IRB to decide their claim can get permission to study or work if they need money to support themselves.
Other requirements An H&C applicant must meet all the requirements for permanent residence (being healthy and self-supporting), or they must ask for exceptions to any requirements they do not meet. A successful refugee claimant can apply for permanent residence and will not have to meet all of the usual requirements. For example, they do not have to show the ability to support themselves financially, and they do not have to meet all the usual health standards.
Ability to travel to home country A successful H&C applicant becomes a permanent resident  and can travel to or get a passport from their country of nationality. A protected person who becomes a permanent resident could lose their status and permanent residence if they voluntarily go back to their country of nationality or get a passport from that country. They could then be forced to leave Canada.
Application fees An H&C applicant must pay a processing fee to apply. The current fees are:

·       $550 for each adult

·       $150 for each child under  the age of 22 included in the application.

·        An H&C applicant who is successful at the first stage will have to pay an additional Right of Permanent Residence Fee. The current fee is $490 for each adult.

There is no fee to make a refugee claim.

 

A protected person will have to pay a processing fee to apply for permanent residence but does not have to pay a Right of Permanent Residence Fee.

By |2018-04-27T16:04:02+00:00April 25th, 2018|Sobirovs Law Firm News|0 Comments

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