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Canada provides refugee protection to individuals who meet the legal definition of a Convention refugee or a person in need of protection. Refugee claims can involve complex questions concerning eligibility, personal risk, credibility, supporting evidence, country conditions, state protection, and other legal issues.
At Nadeem Law Office, we assist individuals with refugee claims in Canada, including preparing claims, reviewing supporting evidence, preparing clients for hearings, and providing representation before the Refugee Protection Division (RPD). We also assist with Refugee Appeal Division (RAD) appeals and Federal Court judicial review where appropriate.
With our head office in Mississauga and branch offices in Cambridge and London, Ontario, we provide legal advice and representation in refugee and immigration matters.
Canada’s refugee protection system allows eligible individuals in Canada to seek protection where they believe they cannot safely return to their country of nationality or former habitual residence and their circumstances meet the requirements of Canadian refugee law.
Canadian law generally recognizes two principal categories of persons requiring refugee protection: Convention refugees and persons in need of protection.
A Convention refugee may have a well-founded fear of persecution based on specified grounds recognized under Canadian refugee law. A person in need of protection may face certain serious personal risks if returned to their country.
Not every difficult or dangerous situation will necessarily meet the legal requirements for refugee protection. Each claim must be assessed based on the claimant’s individual circumstances and the applicable law.
Before a refugee claim is considered by the Refugee Protection Division, immigration authorities determine whether the claim is eligible to be referred to the RPD.
Eligibility can be affected by several factors, including previous refugee claims, protected person status, refugee recognition in another country, certain security or criminality issues, and other circumstances prescribed by Canadian immigration law. There are also important restrictions concerning some claims connected with entry into Canada from the United States under the Safe Third Country Agreement. In addition, current eligibility rules include time-based restrictions affecting certain asylum claims.
Because eligibility rules can be complicated and have changed over time, individuals considering a refugee claim should obtain advice based on their particular immigration and travel history.
Careful preparation is an important part of the refugee claim process.
A claimant generally needs to provide detailed information explaining what happened, why they fear returning to their country, who or what they fear, and why protection is required.
Depending on the circumstances, evidence supporting refugee claims may include:
The evidence required will depend on the particular case. A claimant may not have every type of document, and the absence of a particular document does not by itself determine the outcome of a claim.
The information provided in a refugee claim should accurately and clearly describe the claimant’s circumstances.
The Basis of Claim (BOC) and other documents submitted during the refugee process can become important evidence at the hearing. Information provided in previous Canadian immigration applications or to immigration and border officials may also be relevant.
Inconsistencies, omissions, or unclear information can raise questions that may need to be addressed during the refugee proceedings.
At Nadeem Law Office, we work with clients to understand their circumstances, review relevant documentation, identify potential legal and evidentiary issues, and prepare their refugee claims for presentation before the RPD.
Eligible refugee claims are generally determined by the Refugee Protection Division of the Immigration and Refugee Board of Canada.
At the refugee hearing, the RPD member may ask questions about matters such as:
Legal counsel can assist in preparing the claimant for the hearing, presenting relevant evidence, questioning witnesses where applicable, and making legal submissions.
Credibility can be an important issue in refugee claims.
The RPD may consider the claimant’s testimony together with documentary evidence and other information on record. Questions may arise where there are material inconsistencies, omissions, contradictions, or concerns about supporting documents. This does not mean that every difference or omission necessarily results in a negative decision. The significance of an issue depends on the circumstances and the applicable legal principles.
Careful preparation can help a claimant understand the hearing process and be prepared to address relevant questions about their evidence.
Some refugee claims involve questions about whether the claimant could obtain adequate protection from authorities in their home country. The RPD may also consider whether there is another part of the claimant’s country where the person could safely and reasonably relocate. This issue is commonly referred to as an Internal Flight Alternative (IFA).
These can be important legal issues in refugee proceedings and may require evidence and legal submissions addressing the claimant’s particular circumstances and relevant country conditions.
After considering the evidence and applicable law, the Refugee Protection Division will make a decision on the refugee claim.
If the claim is accepted, the claimant generally becomes a protected person in Canada. A protected person may, subject to applicable requirements, apply for Canadian permanent residence.
If the refugee claim is rejected, there may be options to challenge the decision. Depending on the circumstances, this may include an appeal to the Refugee Appeal Division or an application for leave and judicial review before the Federal Court of Canada.
Because strict deadlines apply, a negative refugee decision should be reviewed promptly.
Many claimants whose refugee claims have been rejected by the RPD have a right to appeal to the Refugee Appeal Division (RAD).
However, not every claimant has a right of appeal to the RAD. Eligibility for an appeal must be determined based on the type of decision and the circumstances of the case.
A RAD appeal is not simply a second refugee hearing. The appellant generally identifies errors in the RPD’s decision involving fact, law, or both and explains why the decision should be changed.
Most RAD appeals are decided based on the written record. In appropriate circumstances, new evidence may be presented if it meets the applicable legal requirements, and the RAD may hold an oral hearing in circumstances permitted by law.
Strict deadlines apply to refugee appeals.
An eligible claimant generally has 15 days after receiving the written reasons for the RPD decision to file a Notice of Appeal with the Refugee Appeal Division.
The claimant generally has 45 days after receiving the written reasons to file the appellant’s record.
The appellant’s record is an important part of the appeal and generally contains the materials and legal arguments relied upon to challenge the RPD decision.
If a deadline is missed, an application for an extension of time may be required. An extension is not automatic.
Anyone considering an appeal should therefore obtain legal advice promptly after receiving a negative RPD decision.
After reviewing the appeal, the Refugee Appeal Division may:
The appropriate next steps will depend on the RAD’s decision and the circumstances of the case.
In certain cases, the Minister may appeal a positive RPD refugee decision to the Refugee Appeal Division.
When this occurs, the person whose refugee claim was accepted may need to respond to the Minister’s arguments and evidence.
A response to a Minister’s appeal may involve reviewing the grounds raised by the Minister, preparing a respondent’s record, addressing the RPD’s findings, and making legal submissions supporting the original decision.
Strict procedural deadlines apply to these proceedings.
Where a refugee claimant receives an unsuccessful decision and the applicable appeal process has been exhausted – or where no RAD appeal is available – the claimant may be able to seek leave and judicial review before the Federal Court of Canada.
Judicial review is different from a Refugee Appeal Division appeal. The Federal Court does not conduct a new refugee hearing or simply substitute its preferred decision. The Court considers whether there is a legal basis to intervene in the decision under review.
The process begins with an Application for Leave and for Judicial Review. The applicant must first obtain leave from the Federal Court before proceeding to a judicial review hearing.
If judicial review is successful, the Federal Court may set aside the decision and return the matter for reconsideration. The Court does not ordinarily make the refugee determination itself.
For a matter arising in Canada, an application for leave and judicial review generally must be filed and served within 15 days after the applicant is notified of or otherwise becomes aware of the decision. An extension may be available for special reasons, but should not be assumed.
Given the short deadline, anyone considering judicial review should obtain legal advice promptly.
At Nadeem Law Office, we assist clients with refugee claims and related proceedings, including:
Every refugee case is different. We review the client’s circumstances, immigration history, supporting evidence, and applicable legal issues before advising on the appropriate course of action.
Refugee claims can involve significant legal and evidentiary issues, and the consequences of a refugee decision can be important for the claimant and their family. Understanding the process and preparing the claim carefully can help ensure that the relevant facts and evidence are properly presented.
If your refugee claim has already been refused, it is particularly important to obtain legal advice promptly because deadlines for a Refugee Appeal Division appeal or Federal Court judicial review can be short.
Nadeem Law Office assists clients with refugee claims, refugee hearings, appeals, and judicial review through our offices in Mississauga, Cambridge and London, Ontario.
Contact Nadeem Law Office to schedule a consultation regarding your refugee claim or appeal.
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