Refugee claims and appeals in Canada

Section 101(1) lists the grounds, and an officer who finds one of them stops processing the claim. There is no hearing on the merits, because the claim is never referred to the Division that would hold one.

Two are deadlines and are set out above. The others turn on history. A claim already rejected by the Board. A prior claim found ineligible, withdrawn or abandoned. Refugee protection already conferred in Canada. Recognition as a Convention refugee by another country that will take the person back. Inadmissibility on security, human or international rights, serious criminality or organized criminality grounds.

Paragraph 101(1)(c.1) is the one people do not expect. A claim made in another country before coming to Canada makes the Canadian claim ineligible, where that earlier claim is confirmed through an information sharing arrangement between the two countries. Canada has such arrangements, they are checked routinely, and a claim made years ago in a country somebody passed through is visible.

Paragraph 101(1)(e) is the safe third country rule: arrival directly or indirectly from a country designated in the Regulations, other than the claimant's own country or country of former habitual residence. The exceptions to it are narrow and are the reason the ineligibility finding is worth reading carefully rather than accepting.

The claim is set out in a Basis of Claim form, and that form governs everything afterwards. It is the account against which every later answer is measured, and an omission in it is treated as a change in the story when it is raised at the hearing. Time spent on it at the start is worth more than time spent on anything else later.

The hearing itself is not a trial between two sides. A member of the Division asks the questions, counsel may ask more, and the Minister takes part only in some cases. Most claims are decided on credibility and on whether the objective evidence about the country supports the account. The National Documentation Package for the country is before the member whether or not anybody files it.

Two findings end most claims that are otherwise believed. State protection, meaning the country could have protected the claimant and was not given the chance. And an internal flight alternative, meaning somewhere else in the same country the claimant could reasonably have gone. Both have to be anticipated before the hearing, because both are usually raised at it.

It is a review of the decision on the record, decided by asking whether the Division got it right. It is not a second hearing. Subsection 110(4) restricts what can be put in: only evidence that arose after the rejection, or that was not reasonably available at the time, or that the person could not reasonably have been expected in the circumstances to have presented.

That rule disappoints people, and it is the single most common misunderstanding about the appeal. Evidence that existed and could have been filed at the hearing is not admissible on appeal because the hearing went badly. The remedy for evidence that should have been filed is not the appeal, and sometimes there is no remedy at all.

The Division can substitute its own decision, which is why the appeal is worth more than judicial review where it is available. It can also send the claim back for a new hearing. Both clocks in section 159.91 of the Regulations run from the same day, so the record is due 15 days after the notice rather than 30 days after it.

Section 110(2) removes the appeal in a defined list of cases. A claim withdrawn or abandoned. A decision that the claim had no credible basis or was manifestly unfounded. A claimant who is a designated foreign national. Certain cases arising from the safe third country rule. Cessation and vacation applications.

Where the appeal is barred the route is the Federal Court, on 15 days for a decision made in Canada, and leave is required. That is a narrower remedy: no new evidence, and the Court sends the matter back rather than deciding it. It is also decided on the papers at the leave stage, without reasons, which is why the application record has to be right the first time.

A finding of no credible basis or a manifestly unfounded claim does more than remove the appeal. It affects what other remedies are open and how quickly removal can follow, so it is worth knowing whether one was made rather than assuming a refusal is an ordinary refusal.

Removal becomes enforceable, and the remaining applications are not rehearings of the claim. A pre-removal risk assessment looks at risk as it stands now, and is generally restricted to developments since the claim was decided. A humanitarian and compassionate application asks a different question entirely, about establishment, the best interests of any children, and hardship, and it is discretionary.

Both carry timing bars, and both are frequently filed too late to stop anything. Neither is an opportunity to argue the refugee claim again with better evidence, and a submission that reads as an attempt to do that tends to be treated accordingly.

The honest position is that the strongest work on a refugee file happens before the hearing, not after it. That is where the account is set down, the country evidence is assembled, and state protection and an internal flight alternative are answered before they are put.