ARCHIVED – Notice – Questions and answers: Protecting Canada’s Immigration System Act

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Refugee claims in Canada

Asylum claims


Refugee claims in Canada

What will happen to refugee claims already in the system?

Scenarios
(once the legislation comes into force, except where noted)
Next Steps

Your claim has been referred to the Immigration and Refugee Board’s (IRB) Refugee Protection Division (RPD), but has not yet been heard.

Your claim will be heard by the RPD at the IRB either by a public servant or by a Governor in Council decision maker.

The new timelines for a hearing do not apply.

In the event of a negative decision, you will not have access to the Refugee Appeal Division (RAD), but could ask the Federal Court to review the decision.

If you have a pending refugee claim, you cannot apply for humanitarian and compassionate (H&C) consideration. You must first withdraw your refugee claim prior to your RPD hearing (i.e., before substantive evidence is heard).

Your claim has been heard by the current Governor in Council (GIC) decision maker before the new system comes into force, but no decision has been made.

The decision on your refugee claim will be made by the GIC decision maker who heard the claim.

However, if that GIC decision maker is unavailable, your claim may be re-heard by either a public servant or another GIC decision maker.

In the event of a negative decision, you will not have access to the RAD, but you can ask the Federal Court to review the decision.

Bars on pre-removal risk assessment (PRRA) applications and requests for humanitarian and compassionate (H&C) consideration apply.

This means that for most failed refugee claimants, there is no access to a PRRA or H&C for one year following a final negative decision on your refugee claim.

For claimants from a designated country of origin, the bar on accessing a PRRA will be extended to 36 months.

No H&C can be submitted while a refugee claim is pending. You must first withdraw your refugee claim prior to your hearing (i.e., before substantive evidence is heard).

Your claim was rejected under the current system (i.e., before the new system comes into force).

You do not have access to the Refugee Appeal Division.

However, you may ask the Federal Court to review the negative decision.

In most cases, if the negative decision on your refugee claim was made during the last 12 months, you cannot apply for a pre-removal risk assessment or for humanitarian and compassionate consideration.

Your claim was rejected under the current system, but was ordered back for re-determination after judicial review by the Federal Court after the new system comes into force.

Your claim will be heard by a public servant decision maker.

You do not have access to the Refugee Appeal Division and bars on pre-removal risk assessments (PRRA) and humanitarian and compassionate (H&C) consideration may apply.

This means that for most failed refugee claimants, there is no access to a PRRA or H&C for one year following a final negative decision on the refugee claim.

For claimants from a designated country of origin, the bar on accessing a PRRA will be extended to 36 months.

No H&C can be submitted while a refugee claim is pending. You must first withdraw your refugee claim prior to your hearing (i.e., before substantive evidence is heard).

You are a failed refugee claimant who is subject to a removal order and has an ongoing pre-removal risk assessment (PRRA).

Your pre-removal risk assessment (PRRA) application will continue to be considered by CIC.

You cannot apply for humanitarian and compassionate consideration for one year after the Immigration and Refugee Board’s (IRB) decision.

Note: PRRA applications in the backlog could be transferred to the IRB, in accordance with the regulations, if the application is pending when the PRRA function and backlog is transferred to the IRB which will occur on a date to be determined by the government.

You are a failed refugee claimant who has a pending application for humanitarian and compassionate consideration.

Your application for humanitarian and compassionate consideration application will continue to be considered by CIC.

Can a refugee claim be rejected based on what the claimant writes in their Basis of Claim form?

No. The purpose of this form is to gather information from a refugee claimant about their claim to help prepare and conduct the hearing properly.

Will claims from people from designated countries of origin be fast-tracked?

Claims from people from designated countries of origin will get a fair hearing before an independent decision maker at the IRB. Hearings on these claims are expected to be held no later than 30-45 days of referral of the claim, as opposed to the 60-day timeframe for other refugee claimants. These timeframes will be specified in regulations.

Failed DCO claimants will not have access to the Refugee Appeal Division.

All failed refugee claimants will still be able to ask the Federal Court to review a negative decision. However, there will be no automatic stay of removal for people from a designated country of origin while a judicial review is pending.

Asylum claims

If someone is from a designated country of origin, will their claim automatically be rejected?

No. All eligible asylum claimants continue to get a fair hearing before the independent IRB based on their own circumstances.

What kind of assistance and how much will be given to people under the Assisted Voluntary Return and Reintegration (AVRR) pilot program?

The AVRR pilot program will provide tailored assistance to help participants both plan their departure and successfully reintegrate into their home society.

Initially, participants will receive pre-departure assistance from the IOM to help with planning for their return. This includes education and counselling on their options for return, help obtaining a travel document if required, and assistance booking a plane ticket to their country of return. Participants will also receive advice to develop a customized plan to help them reintegrate into their home countries’ society upon their return.

Once they return to their home country, participants will receive support from a local IOM office or service provider that is affiliated with the IOM. The in-kind assistance of up to a maximum of CAN $2,000 will help them carry out their reintegration plan and can be used to pay for services such as help starting up a small business or to get an education.

While the maximum amount of in-kind assistance is set at CAN $2,000, the actual amount provided in each case will be based on an assessment of individual needs and the economic and social conditions in the country of return. A participant will not necessarily receive the full amount.

What will stop someone from filing an asylum claim, knowing that it is unfounded, simply to benefit from the AVRR?

The modest in-kind assistance (up to $2,000 CAD) that will be available under the pilot is unlikely to be enough of an incentive for people to file a refugee claim simply to benefit from the program. Stakeholder groups the CBSA has consulted have noted that refugees often incur significant expenses to travel to Canada from overseas, leaving their support networks of friends and family behind. The possibility of reintegration assistance would not be enough of an enticement for them to come to Canada.

Other than for incidental expenses, such as a meal or taxi fare, in the vast majority of cases participants will never directly receive money under the pilot program; the funds will be controlled and disbursed by a local service partner affiliated with the IOM in the individual’s home country.

The CBSA will also put stringent program eligibility criteria into place, coupled with close program monitoring activities, to ensure that the program is managed throughout the pilot phase as effectively and efficiently as possible.

Finally, it should be stressed that those individuals who have been found by the IRB to have made fraudulent or non-credible claims will not be eligible to participate in the AVRR pilot program.

Has the AVRR concept been tried in other countries?

AVRR programs have been operating for almost 30 years and 19 European nations have one in place. Australia recently launched a national AVRR program after successful trials in August 2009.

These AVRR programs have led to more cost-effective, timely and humanitarian returns and have generally resulted in increases in the number of voluntary returns. AVRR programs also help unsuccessful claimants avoid the stigma of deportation, while helping them make a fresh start in their home countries and making them less likely to leave their home country after returning.

Why was the public policy provision removed from the H&C provisions?

The new legislation separates out the use of public policies and H&C decisions because they are two very different options. In H&C applications, decisions are made on a case-by-case basis by a single decision maker and must be justifiable on humanitarian and compassionate grounds.

Public policies facilitate processing for a large number of individuals who meet the same general criteria, and they are established by the Minister. Public policies may be justifiable on national interest grounds or on humanitarian and compassionate grounds.

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