Refugee Determination Flashcards
Stages of the Refugee System
- Front End - which includes the claimant’s eligibility (IRCC and CBSA)
- Determination - RPD
- Post Determination - IRCC, RAD, Federal Court
Desingated foreign Nationals from Designated Country of Origin
DFN is subject to automatic detention, if over the age of 16, upon arrival - s. 55 (3.1) and will be held there until the claim has been finalized or released by the immigration Division or by order of the minister
The initial review has to take place within the 14 days of the detention and any subsequent reviews will take place every 6 months until a final determination is mades
A DFN who has approval will have to wait 5 years to apply for PR and cannot sponsor their family members until they have PR
Safe Third Country Agreement
General concept that it is the first country that is deemed to be safe to claim for the claimant to make a claim, after flee their country or persecution
Those that arrive directly or indirectly from a safe third country are not permitted to make a claim, ecept for the US (s. 102)
- those that are arriving by land will not be able to main a claim at the POE unless they qualify for an exception to the agreement between the two governments (not applicable to claims made within the boarders of Canada)
Front End Stage
The front end stages serves as a sreen people early for determination process as a means to control who may have a claim heard by the RPD and who will be denied access.
The process of making a refugee claim
- Claimant initiates application : orally or in writing at the port of entry (CBSA) or at an inland office (IRCC)
- Officer Examination: assess admissibility (s 44 report), issues conditional removal order, initiates background security checks; and biometric information
- Eligibility Interview: decide whether eligible under IRPA s. 101 within three days or claim is deemed referred under s. 100 (3), issue notice of eligibility/notice of referral, basis of claim form
Initial Application
To prevent this system being abused, cannot make a refugee claim once a refusal order has been issued but may make a claim at any point
- a claim can be made at any point up to when the removal order is issued
If they are filing a claim as an in-land then they go through a different process. They will be provided with a General Application form and a BOC form, and then will be given a time and date to return with the completed foms for their eligibility interview.
Examination
The claimant goes through examination by officer to determine; identity, eligibility and inadmissibility
Conditional removal order is issued at the exmination and comes into effect in the following circumstances
- the claim is refused and all further steps have been exhausted
- the claim has been abandoned
- the claim has been withdrawn
The removal takes into effect, granted that the claimant has no rights to an appeal,judicial review or PRRA
In the case where they are inadmissible due to criminality or security risk, then the case is suspende and the officer has to wait for court decision because the allegations will have to be heard before the Immigration Division (ID)
The offier may consider detention where they think that the claimant is a danger to society, does not have identity document, necessary for the examination to be completed or reasonable grounds to beleive that they are inadmissble to Canada for security reasons
DFN, detention is automatic and these are ones that come from designated Origin Countries
Eligibility Interview
Claim will be referred to RPD if officer finds that the claimant is elibigle
s. 100(1), the officer has three working days to decide on their eligibility or they will automatically be deemed to be referred to the RPD
- the onus is on the claimant to demonstrate that their claim has merit to be referred to the RPD
if additional information is made known prior to them appearing before the RPD then proceedings before the RPD will be terminated.
Ineligible Claims
The claim may be found ineligible on the following grounds
- the claimant has already made previous claims and was refused, withdrawn, rejected etc.
- they have been recognized as a refugee under the 1951 Refugee Convention by a country other then Canada and can be sent or returned to that country
- has been determined as inadmissible
- came through another country to Canada where it is designated as safe third country
When they are found to be ineligible they then are provided with a notice and their removal order becomes enforcable,
- some claimants may be invited to make an application for PRRA at this stage
- some may be able to apply to the Federal Court to seek leave for judicial review of an unfavorable decision on the basis of a reviewable error of fact or law
Basis of Claim Form
Claim was made at POE - must send the form back to RPD completed within 15 days
Claim was initiated at inland office, will be submitted directly to RPD along with the referral if eligible at the interview.
- at the time of referral, the CBSA will also schedule the first hearing date with the RPD which cannot be no later than 60 days after the claim was referred
Security Screening
RPD may suspend the eligibility hearing if the results are still pending
Determination Stage
- Referral to RPD: Notice of elibility referral and receipt of BOC form from the claimint within 15 days if it was a POE claim or from officer with the notice of eligibility for an inland claim
- RPD: BOC review and case preparation (identify the issues and research), hearing is scheduled 30 days for insland DCO, 45 days for POE, 60 days for all other claims
- Inquisitorial Hearing: presentation of case by the claimant, intervention of the minister if required, hearing and decision is made by the member, notice of decision is made as well as the reasons
Manifestly Unfounded Claim
- these findings means that the failed refugee claimant does not have the right to appeal the decision to the RAD and is subject to other restrictions on future applications to remain in Canada.
Accepted Claim
If the claim is accepted they then can apply for PR and in the application they can include dependent family members who are in Canada or abroad.
- Applications for claimants in Canada are processed at the case processing center in Edmonton and abroad is done by the visa officer.
DFN: if they had arrived in Canada in a group that is an irregular way, the claimant does not apply for PR immediately but would be allowed to stay in Canada as a TR for five years and would not have the right to sponsor family
Not Eligible
Successful claimant is not permitted to apply for PR in the following cases: the need for protection has ceased or the protection has vacated by the RPD (the original claim)
- n either of these situations, the minister must apply to the RPD to request a hearing into the matter to argue cessation or vacation
Rejected Claims
The removal order will be in effect, but the claimant may have the following options
- voluntary departure - must leave 30 days from the date that the conditional removal order comes into force
- appeal of the RPD determination to the RAD
- application for leave for judicial review (the removal order may be stayed)
- application to IRCC for PRRA (12 months from the date of notice of decision and the PRRA can only be initiated by the minister)
RAD
Refugee Appeal Division
- do not require permission to apply like the Federal court for judicial review
- focuses on the correctness of the conclusion reached rather then the legality and reasonbleness of the RPD’s process and decision making
- new evidence is permitted to be introduced at RAD
