Are you a Refugee or a Person in Need of Protection?
A person may be considered a Convention refugee if they have a well-founded fear of persecution upon return to their country of origin or country of last residence. There are five grounds of persecution, recognized by the international community: race, religion, nationality, membership in a particular social group and political opinion, or if the person may be subjected to cruel and unusual punishment or risk to life. When someone claims refugee status, there must be a relation between the fear of persecution and one of the five grounds. They usually must show that their country cannot offer protection in any capacity.
A particular social group is the ground most open to interpretation and it has included domestic abuse and sexual orientation, for example, but does not include economic persecution or medical grounds.
Bill C-11 – Balanced Refugee Reform Act.
Upcoming changes to the asylum system will come into effect in late 2011 and are intended to improve efficiency in delivering faster decisions, deterring abuse, resettling more refugees, making it easier for them to start their lines in Canada and quickly removing failed refugee claimants.
Changes to the system include:
– An initial information gathering interview at the IRB
– A first level hearing staffed by public servant decision makers at the IRB
– A new Refugee Appeal Division at the IRB
– A bar on accessing pre-removal risk assessments and temporary resident permits for one year following a final negative IRB decision
– An Assisted Voluntary Returns pilot program
– Authority to designate countries of origin
– Authority to identify claims as manifestly unfounded at the first level hearing
– Faster processing times
– Faster removal of failed refugee claimants
The new system is designed to make decisions within 60-90 days. Most failed claimants will be removed within 12 months of the final decision from the Immigration and Refugee Board.
|Eligibility review – no change
|Information gathered in 28 days through a paper-based Personal Information Form||Information gathered 15 days after referral of claim through an in-person interview at the IRB|
|No authority to designate countries of origin||Authority to designate countries of origin
(Countries that do not normally produce refugees, that have a robust human rights record and offer strong state protection.) Expedited appeals for claimants from these countries who receive negative decisions.
|Initial hearing currently in about 19 months by Governor in Council term appointees||Initial hearing and decision within 60 to 90 days by permanent public servant members at the IRB|
|No Appeal Division at the IRB||A new Refugee Appeal Division at the IRB, with a decision within 30 to 120 days of filing and perfecting an appeal|
|Access to Federal Court
|Access to the Federal Court
|Access to Pre-Removal Risk Assessment (PRRA)||If not removed within 1 year – access to a PRRA and Temporary Resident Permit (TRP)|
|Removal; no Assisted Voluntary Returns||Removal within 1 year after final negative IRB decision; new Assisted Voluntary Returns program (increased education and counseling for failed asylum claimants. The program will also provide limited financial assistance to a third party which will use the funds to help a person return to their home country.)|
Related Frequently Asked Questions (FAQ’s):
How Long Does It Take to Be Assessed as a Refugee?
Q.I have a good friend who is in the USA illegally and intends to come to Canada and claim protected person status. I understand the procedure takes a long time and the applicants have to wait long time until their fate is decided. Is this true?
The projection for 2008 is that approximately 38,000 people will claim refugee/protected person status in Canada. In an effort to streamline the process, Citizenship and Immigration Canada (CIC) together with the Canada Border Services Agency (CBSA) introduced a new integrated form that gathers information in one document. In an effort to fast track the procedure, the officers at the refugee intake process will assess the admissibility and eligibility of each person claiming refugee status in Canada, and not assess whether the claim is well-founded, as this assessment will be performed by the Refugee Protection Division as part of the refugee determination process. Your friend however may be subject to the Safe Third Country Agreement where persons entering Canada from the USA and claiming protection are ineligible in certain circumstances to claim. The backlog for refugee cases is growing and cases are taking a year to two to schedule depending upon the region in Canada and the country from which the claimant is fleeing. Please consult a lawyer before making the claim.
Last, this is my final article for 2008. I am amazed and flattered with the hundreds of questions I receive each week and the many kind words that have been expressed. I am delighted the column is helping so many people. Keep asking and I will keep answering! I, on behalf of myself and 24 Hours, wish everyone peace, health and prosperity over the holiday season and in 2009.
Can I file in Buffalo?
Q. I am an avid reader your immigration section in the 24 Hours. I am in a difficult situation here in Canada and do not know what to do to gain status in Canada. I came to Canada a few years ago, I claimed refugee status and my application has been refused.
I am now without status and on the verge of being sent back home and I am rather desperate. I went to a consultant and asked whether I can file a skilled worker application in Buffalo and he said that of course I can. Other people though tell me that I cannot file in Buffalo and I am not sure what should I do? Pay the consultant to file in Buffalo or take some other people’s advice and file in my home country?
A. Of course, this is a question asked by many people who are in Canada and do not know the difference. But I am amazed by the response given to you assuring you that you may file your case in Buffalo. The legislation is very clear on this point. You came to Canada and claimed refugee status, you were not admitted to Canada legally for at least one year, therefore your application cannot be filed in Buffalo visa office. Only those people who came to Canada with a valid visa for at least one year can file to that visa office. All the others have to file in the countries of their citizenship or where they reside legally. Depending on each individual case and circumstances, there are other ways to file a legal application in Canada, one of them being the application based on humanitarian and compassionate grounds. Thank you for your question.
Q. What are the reasons one can claim refugee protection for?
A. A Convention refugee means that the claimant has a well-founded fear of persecution. There are five grounds of persecution, recognized by the international community: race, religion, nationality, membership in a particular social group and political opinion. When someone claims refugee status, there must be a relation between the fear of persecution and one of the five grounds as enumerated above.
When claiming refugee status, one can identify the grounds or not. It will be up to the Refugee Division of the IRB (Immigration and Refugee Board) to determine whether the grounds referred to is genuine or not or whether there are other grounds of persecution.
The claimants are required to fill out the Personal Information Form (PIF) where they have to give all the details about their background, their family’s background in terms of education, work history, addresses, etc. and, most of all, the ground for their claim with details. The claimants must bring forward all the documentary support to prove their case, otherwise their story cannot be corroborated with the claim.
In Canada, the refugee claimants are allowed to work and earn their own living, until their case is heard by the Refugee Division. Once your case is approved, you are allowed to apply for permanent resident status, including all the members of your family.
Refugee claimants do not have to meet the medical requirements, meaning, they can be approved, even though they are medically inadmissible, which is a huge advantage for the applicants.
Or, if your case is refused, you will have to prepare yourself for departure, after going through all the other steps that might allow you to remain in Canada.
Q. I have a friend from Somalia who lives now in the United States. He would like to come to Canada and apply for refugee status at the border. Can this be done and what are his chances?
A. Canada’s legislation regarding refugees takes into consideration its international obligations as signatory to: the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol; and the Convention against Torture (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment);
Canada has developed a front-end procedure for all refugee claimants, at each land border and in the airports. This procedure is mandatory for each claimant, meaning an in-person interview/claim, security and criminal background checks. To make a claim, the applicant must submit in person, in writing and in front of an officer. The refugee claimant has the burden of proof, meaning that he/she must show that the claim is eligible for refugee protection. A claim is ineligible if the person:
has already been granted refugee protection in Canada or in another country; has previously been refused refugee protection in Canada; came to Canada from, or through, a designated safe third country where you could have claimed refugee protection, or is a security risk, have violated human or international rights, have committed a serious crime or have been involved in organized crime. In your friend’s case, we do not know whether he claimed refugee status there or not. USA is considered a safe third country and as per the USA-Canada safe third country agreement, he must have claimed refugee in the USA first, before coming to Canada. As we are not clear about his status, he might or might not be allowed to claim refugee in Canada. In the next edition, I will expand a little bit on the reasons for refugee protection.
Q. I understand the government has changed the law. I am seeking refugee status and have put in a humanitarian case too. Now I cannot have both? I am being told I should make other applications right away. What should I do? Your advice would really help.
A. We have begun receiving questions after the Government’s announcement last week. First it is important to highlight these are proposed changes and not law at this time. Second, on a review of the proposed changes (Bill C-11), there does not appear to be mention of making changes retroactively, meaning to those persons who have already claimed protected person status and filed a humanitarian and compassionate (H&C) grounds application. If the Bill became law as it currently reads yes there would a restriction on seeking protected person status and H&C relief at the same time but for those that already filed and/or claimed. This restriction will be a very hotly contested issue and it is not clear if it will become law. Other potential changes include a list of certain countries that are deemed to be safe, a screening by a tribunal officer from the RPD at first instance, the introduction of a Refugee Appeal Division (RAD), a processing target of setting hearings down within sixty days, and limited access to H&C applications and pre removal risk assessments (PRRA) for certain classes of claimants, to list but a few. There is bound to be much information circulated about these potential amendments but until they are law be careful not be to be mislead by those who may see this as an opportunity to exploit people
Canadian Refugee Law
Do I need to Appeal to IAD or Waive my Right of Appeal?
Q. I have landed in Canada with my family as permanent residents in May 1996, but I had to go back to India with my family in August 1996. In August 2002, I intended to return to Canada and wrote to the Canadian High Commission in India to clarify my status and issue me an Authorization to return. Since I had not received any response and telephonic discussion was not being entertained, I made a new application in December 2002, just for not losing my PR status. Now I received a response to my application for PR made in Dec. 2002 saying that we are still permanent residents who did not comply with the residency obligation and must sign a Consent to Decision of Residence and Waiver of Appeal Rights, to continue my application. Signing this document removes the PR status also waives the right of appeal of the removal of this status. They continue to say that if we believe we are still PRs, then we must apply for a Permanent Resident Travel Document. They gave us 30 days to provide a response. What is your advise in this case, please?
A. This is a frequent question that we receive. When you left Canada, under the old Act and Regulations, you still had to comply with the residency obligation, meaning at that time that you could not be out of Canada for more than 6 months within any 12-month period. Obviously, you did not comply with this requirement. When you applied for a RRP (Returning Resident Permit) in August 2002, the new legislation was in place as of June 2002, and this type of application was no longer available- hence no response from the visa office. At this point in time, as per the visa office’s letter, you must decide whether to apply for a travel document, which will be refused and then challenge the decision in court (IAD) or, just sign the waiver and continue with your new application. Without knowing all the details of your case, I believe it will be very difficult to demonstrate in court that you complied with the residency obligations and win your case. A permanent resident application may be the better option but consult with an immigration lawyer before any decisions