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Refugee Claim

Within Canada, our Charter of Rights and Freedoms affords us fundamental rights and freedoms. This includes freedom from discrimination. Unfortunately, there are countries, which do not afford these basic rights to its citizens.  In some countries, Claimants and their families are beaten, tortured, detained, harassed or even killed, for criticizing their government, the ruling party in power, for practicing their faith, or for belonging to a certain race or ethnicity, etc.


Canada and Canadian values provide for a safe haven for refugees who qualify.


An Claimant can apply outside or inside Canada; however, generally most Claimants  apply within Canada. They submit their refugee claim application, which includes a Basis of Claim Form (narrative). If approved, they are then scheduled for a refugee hearing.


The following is information regarding the Refugee Hearing Process:

The Hearing:
A refugee hearing takes place at the Immigration and Refugee Board (IRB) before a Member 

  • The Member can attend in person, or appear remotely  
  • An Claimant can bring a representative, typically a lawyer, to represent them and can also call witnesses


Questioning:

  • The Member will first question the Claimant
  • The Representative will then question the Claimant and provide closing submissions


What the Member is looking for to grant Refugee Status:
The Claimant must fall in either s.96 of the Immigration and Refugee Protection Act, SC 2001, c 27, or s.97:


Convention Refugee (Onus on Claimant, well-founded fear):
96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.

Person in Need of Protection (Onus on Claimant,  balance of probabilities) :
97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other Claimants in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

Specifically, the Member is looking for:

  • Well Founded Fear (s.96): Does the claimant have a well-founded fear? Do they have a good reason to be fearful? What would happen to the Claimant if they returned to their country of origin?
  • Persecution (s.96): is the mistreatment suffered or anticipated serious? It must constitute a denial of a core human right.
  • The Grounds of Persecution (s.96): A Claimant's fear of persecution must be by reason of one of the five grounds enumerated in the definition of Convention refugee - race, religion, nationality, membership in a particular social group and political opinion. There must be a link (nexus) between the fear of persecution and one of the five grounds.
  • State Protection: Is the country of origin unable or unwilling to protect the Claimant? 
  • Internal Flight Alternative: Can the Claimant move to another, less hostile part of the country?
  • Other country (third country; safe third-party agreement): Has the Claimant resided in another country, to which they can return?
  • Other factors: Civil war in the country of origin, is the Claimant charged with an offence (including crimes against humanity, war crimes, serious non-political crimes, an act contrary to the purpose and principles of the United Nations), persecution vs. protection, exit laws, compulsory military service, one child policies, religious or cultural mores, indirect persecution and family unity.
  • Credibility: based on all these factors the Member will gauge the credibility of the Claimant’s story – this is based on looking at evidence in support of the application, contradictions and inconsistencies with Claimant’s evidence, omissions of key events from Basis of Claim, implausible allegations, delays, failures to claim, failure to provide satisfactory explanations to Refugee Protection Division (RPD) concerns, and general demeanor in testimony.  


 The following is for information purposes only and should not be construed as legal advice. A refugee claim is a very serious matter, with serious consequences. It is important to consult a lawyer with experience and skill in this field as there a number of documents and evidence that the Immigration and Refugee Board  (IRB) would require that would assist in your hearing. Sanjiv Parmar at Parmar Law is an experienced and passionate refugee claims lawyer.

 

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