Making a Refugee Claim in Canada: What You Need to Know

Last Updated: 9 April 2020.

Access the PDF version of this article here.

Are you or someone you know planning to come to Canada to claim refugee status? If so, you should know that the refugee determination process from within Canada has undergone some dramatic changes in recent years. Stricter standards are now applied to claimants originating from certain countries deemed “safe”. It is essential for potential claimants and those who assist them to understand the new system and to take important steps that will increase the potential for a positive outcome.

Claiming Refugee Status at the Port of Entry

A foreign national (i.e. a non-Canadian) can claim refugee status as soon as he or she arrives at a Canadian port of entry (the airport or border crossing). If the foreign national is found eligible to make a refugee claim, the claimant will be given a Confirmation of Referral letter and the claim will be referred to the Immigration and Refugee Board (IRB), with a hearing to follow thereafter. The claimant will also be given a form called the Basis of Claim form (BoC) that needs to be completed and filed at the IRB Refugee Protection Division office within 15 days.

Claiming Refugee Status from within Canada

If a person decides to make a refugee claim after entry to Canada, he or she can fill out the forms at any time (though delays should be avoided—see the section of this article entitled “Do Not Delay”). The potential claimant can go into an IRCC office to obtain the forms, or can download them online. The necessary forms include the Basis of Claim (BoC) form as well as permanent resident application forms. Once these are filled out, the potential claimant must go into an IRCC office to make the refugee claim. IRCC will take the forms, and will provide a date for the claimant to come back for an interview. At that interview, the claimant’s eligibility will be determined. If eligible, the claimant will be given a confirmation of referral letter that confirms the claim has been referred to the IRB.

The Basis of Claim Form

The Basis of Claim (BoC) form should never be filled out without the assistance of an experienced lawyer. The BoC is the most important document for a refugee claim. It must be completed thoroughly and carefully. Too often, when refugee claimants complete this form without professional assistance and advice, mistakes are made and important details are left out. Even a strong claim for protection will be seriously compromised by a deficient BoC. Only a specialist with a strong understanding of Canadian refugee law can ensure that the BoC is thorough and complete.

The Hearing

Everyone who makes a refugee claim in Canada will have a hearing. As of January 1, 2020, the projected wait time for claims for refugee protection before the Refugee Protection Division of the IRB is up to 22 months from the date of referral.

Claimants should arrange for legal representation at the hearing before or as soon as possible after they are given a hearing date. Any and all relevant documents should be gathered prior to departure and brought to Canada. If it is not possible to bring all documents to Canada at the time of the claimant’s arrival, the claimant should arrange for them to be sent as soon as possible.

Evidence

Refugee claimants must always prove their identity. The more documentation provided to establish the identity of the claimants and their family members, the better. Passports, national identity cards, birth certificates, marriage certificates, and membership cards from organizations are just some examples of the documents that should be gathered and brought to Canada where possible. Original documents, with certified translations, are always best.

A refugee claimant must also provide evidence to show that his or her claim of persecution is truthful. Again, the more documentation provided to validate the claimant’s statements, the better. Examples of helpful documents include police reports, medical records, newspaper articles (naming the claimant or others experiencing similar persecution), photographs, signed letters from individuals who can confirm details of the claimant’s story, and reports of human rights organizations or academic bodies. Individuals in Canada who can verify the claimant’s identity or support the protection claim can appear at the hearing to give testimony. Such individuals might include expert witnesses with knowledge of the conditions in the claimant’s country of origin.

Do Not Delay

In our practice, we often see refugee claimants who leave the country where persecution is feared, and then travel to other places before coming to Canada. We also see claimants who, despite their fear, return to their country of origin after spending time abroad. Oftentimes, a claimant will stay in Canada for months or years before deciding to make a refugee claim, or will wait months or years to leave their country after obtaining the necessary visa or travel documents.

Although there are many valid reasons to explain why a refugee claimant will wait to come to Canada and/or make a refugee claim in Canada, the Board members who evaluate refugee claims usually take a negative view of these delays. Delay is treated as a sign that a person is not truly afraid to return to their country of origin.

As such, it is always best to claim refugee status in Canada in a timely manner. Those planning to make a refugee claim should avoid spending lengthy periods of time in other countries en route to Canada. They should also avoid going back and forth to the country where persecution is feared. They should leave their country as soon as possible after the act or threat of persecution presents itself and, upon arrival in Canada, they should make a refugee claim without delay.

Sometimes, delays cannot be avoided. However, claimants often allow time to pass without understanding that this could impair their chances of obtaining refugee protection in Canada. All claimants should be aware that delays are to be avoided wherever possible, and that they must be prepared to explain any inevitable delays.

Getting to Canada

Out of desperation, refugee claimants often hire people to help them acquire false documents to enter Canada, or to help them enter Canada by means that are illegal (i.e. “smuggling”). When two or more people enter the country together in this way, they may be considered as “designated foreign nationals”, which means they will be treated differently from other refugee claimants under Canada’s new laws. “Designated foreign nationals” face automatic detention in Canada. If they are accepted as refugees, they are barred from applying for permanent resident status for five years. They cannot access Canadian healthcare unless it is an emergency. If the refugee claim of a designated foreign national fails, that claimant will not have the appeal rights that normally apply.

Sometimes, the only way for a person to escape their home country is by way of a smuggler. However, if there are potentially other means of bringing a claimant to Canada, these should be considered, because the consequences of being named a “designated foreign national” are severe.

Who Can Help

If the claimant or his/her supporters have access to funds to hire legal counsel, an experienced Canadian refugee lawyer can be approached directly for help. Claimants are advised to verify the credentials and experience of their legal advisor before engaging their services.

Individuals can also approach refugee settlement organizations for advice on refugee claims, and for assistance with adjusting to life in Canada. Settlement organizations are located across the country. In Ontario, this website can help refugee claimants locate nearby services.

The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. is proud to assist refugee claimants in the Ottawa area.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He is a Certified Specialist in the fields of Immigration Law, Citizenship Law, and Refugee Law. He can be reached at wcreates@perlaw.ca or 613.566.2839.

New Federal Skilled Trades Program Unveiled

On January 2nd, 2013, Citizenship and Immigration Canada began accepting applications to the new Federal Skilled Trades Program. The Program offers permanent resident status to foreign nationals qualified in a skilled trade. It is intended to improve Canada’s ability to meet the labour demand in trades sectors such as construction, oil & gas, mining, agriculture, and forestry, which have some of the highest sectoral job vacancy rates in Canada. The Canadian Construction Association says that, by 2020, Canada will need 320,000 additional construction workers—only about half of which are likely to be available from domestic sources.

The program will be particularly beneficial to provinces like Alberta, which holds the highest job vacancy rate in the country (3.6% as of November 2012). It is estimated that Alberta will need 115,000 additional workers in skilled trades over the next 10 years.

In the first year of the program, a maximum of 3,000 applications will be processed. The Program applies to 43 categories of jobs, divided into two groups. For the first group, which includes 17 “moderate labour market need” job categories, a sub-cap of 100 applications per job category applies (i.e. once 100 applicants are accepted for an individual job category, that category will be closed for the year). The second group includes 26 “in-demand” jobs for which there will be no sub-caps. A list of all job categories presently included in the Program can be found here. All belong to Skill Level ‘B’ of the National Occupation Classification (NOC).

Applicants must meet all of the following eligibility criteria:

  • meet all job requirements for the skilled trade category;
  • plan to live outside Quebec;
  • have at least two years’ full-time experience (or the equivalent in part-time experience) in the trade within the five years prior to application;
  • prove basic proficiency in either English or French by way of a language test from an organization approved by CIC;
  • have a full-time offer of employment for a total period of at least one year, OR a certificate of qualification issued by a provincial or territorial body.

CIC is currently estimating that applications will be processed within 12 months.

Applications will be processed in the order they are received up until the yearly cap is reached. As such, potential applicants should act quickly, and ensure that their application is complete and accurate at the time of submission.

The Foreign Skilled Trades Program offers an unprecedented opportunity to many who, in the past, may only have been eligible for a temporary work permit. Unlike a work permit, the Program leads to immediate permanent resident status in Canada. After residing in Canada for three years, those accepted under the program can acquire Canadian citizenship, leading to a Canadian passport. Canadian law recognizes and permits dual and multiple citizenships.

The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist both employers and potential applicants with evaluating eligibility for this program, preparing comprehensive application packages, and addressing any potential complications.

Detailed information on the program is available from the Citizenship and Immigration Canada website:http://www.cic.gc.ca/english/immigrate/trades/index.asp

Warren L. Creates and Jacqueline J. Bonisteel

Can Inadmissibility to Canada be Overcome? The Temporary Resident Permit Explained

Unless your name is Lord Black of Crossharbour, a determination that you are inadmissible to Canada is not easily overcome. Where the Canadian authorities find a permanent resident or foreign national inadmissible, that person must leave Canada, and will not be permitted to return for any purpose. Inadmissibility is most often triggered by a criminal conviction, or a finding that one’s health condition will cause excessive demand on social services or a danger to public safety. Inadmissibility can also be based on a perceived security threat to Canada, misrepresentation, a finding of involvement in human rights violations abroad or organized crime, or a determination that adequate arrangements for financial support have not been made.

When a finding of inadmissibility is made, the options for challenging that decision are limited, and most carry low prospects of success. In cases of criminal convictions, it may eventually be possible to end the inadmissibility by way of rehabilitation. However, rehabilitation is not available in all cases and, even where it is, a significant period of time (either five or ten years) must pass before the rehabilitation provision (s. 36(3)(c) of the Immigration and Refugee Protection Act (”IRPA”)) can be triggered.

A more immediate solution is available in exceptional cases: the Temporary Resident Permit (TRP). Pursuant to s. 24 of the IRPA, a TRP allows an inadmissible person to enter Canada for a limited period of time where “justified in the circumstances”. Exceptional circumstances justifying the issuance of a TRP might include attendance of a family event like a birth or funeral, the need to spend time with immediate family in Canada, participation in a sporting or cultural event, or an important business visit. A TRP can be issued for a period of one day to three years.

In high-profile cases where Canada is likely to benefit from the presence of an inadmissible person, the prospects of success are much higher. For example, where a famous musician is planning to tour Canada but is inadmissible due to an impaired driving conviction, a TRP is likely to be issued for the duration of the tour to allow the musician to play, and to allow Canada to reap the economic and cultural benefits of the performances. The recent controversial case of newspaper magnate and convicted felon Conrad Black is also revealing: in just weeks, Lord Black was granted a one-year, multiple-entry TRP on the basis that his family home is in Toronto and his wife and children are Canadian citizens. The TRP was granted despite the fact that Lord Black was still in prison in the U.S.—an “extraordinarily rare” occurrence.[1]

Where a case is not so high-profile, obtaining a TRP tends to be more difficult. Officers will be cautious in granting a TRP not only because of the potential risk to Canadians posed by inadmissible persons, but also because members of the permit holder class have access to significant privileges, such as the ability to apply for a work or study permit inland, and access to health and social services. As well, when a TRP holder is in Canada and was not inadmissible on the grounds of serious criminality, organized crime, security, or the violation of human or international rights, that person will automatically become entitled to permanent residence after a prescribed period. These are significant rights that Canada will be very guarded in granting to persons previously found ineligible to enter the country.

To make a TRP application compelling, it is essential to convince the officer that the applicant poses no danger to the Canadian public, and will not be reliant on Canadian social services. Supporting documentation such as recent medical records, letters of support, and proof of a lack of recent criminal activity can be put forward. An application is also more likely to succeed where there is a credible reason for the visit to Canada. A TRP requested for a limited duration tied to a specific event is likely to be looked upon more favourably than one requested for a longer duration and a vague purpose.

Officers are afforded significant discretion in evaluating a TRP application. Still, the officer considering the application is required to act fairly, to account for all relevant factors, and to properly weigh those factors before rendering a decision. For instance, where a TRP is sought to overcome criminal inadmissibility, the officer is directed to consider the seriousness of the offence, and to undertake an assessment of the risk of further criminal activity. If this duty to act fairly is breached, the decision may be overturned by the Federal Court on judicial review. The application will then be sent back for re-determination by a different officer. There are case law precedents where a refusal to extend a TRP has been overturned on judicial review because the officer failed to provide adequate reasons, or provided reasons that were so unreasonable so as to constitute an error of law.[2]

Nonetheless, in the context of officer discretion, overcoming a negative decision will be difficult, and applicants are advised to consult an experienced immigration lawyer before submitting a TRP application or embarking on a challenge to a negative TRP decision. Our Immigration Law Group specializes in this area. We can assist you in exploring your legal options where you or a family member has been found inadmissible, and can also help ensure that an application for a TRP has the strongest possible chance of success.

Warren L. Creates and Jacqueline J. Bonisteel

 

[1] Steven Chase, “Just how special is Lord Black’s residency permit?” The Globe and Mail (2 May 2012) <http://www.theglobeandmail.com/news/politics/just-how-special-is-lord-blacks-residency-permit/article4105216/>.

[2] See, for example, Beyer v Canada (Minister of Citizenship and Immigration), 2009 FC 823 (CanLII);Figueroa v. Canada (Minister of Citizenship and Immigration), 2003 FC 1339 (CanLII).

Canadian Citizenship Fraud: How to Be Prepared

Last Updated: 9 April 2020

Access the PDF version of this article here.

Many of the cases related to citizenship obtained fraudulently happen with the assistance of immigration consultants. Investigators have discovered cases where consultants, located both in Canada and abroad, allegedly orchestrated large-scale schemes that encouraged permanent residents to represent that they were living and working in Canada. In reality, the applicants were abroad and did not meet the Canadian residency requirement to apply for citizenship.

Immigration, Refugees and Citizenship Canada (IRCC) announced in April 2019, a new legislation that will make the College of Immigration and Citizenship Consultants (CICC) the official regulatory and oversight body for immigration consultants across Canada. Canada’s former Minister of Immigration, Refugees and Citizenship, Ahmed Hussen, said the proposed legislation will give the College “both the powers and tools they need for vigorous oversight, enforcement, investigations and punishment to root out fraudulent immigration and citizenship consultants and hold them accountable for their actions.”

Among other things, the CICC is intended to:

  • Create a licensing regime for immigration and citizenship consultants and require licensees to comply with a code of professional conduct established by the Minister of Immigration;
  • Authorize the College’s Complaints Committee to conduct investigations into a licensee’s conduct and activities;
  • Authorize the College’s Discipline Committee to take or require action if it determines that a licensee has committed professional misconduct or was incompetent;
  • Prohibit persons who aren’t licensed from using certain titles and representing themselves as licensees.

The scale of the crackdown on fraudulently-obtained citizenship since 2012 is unprecedented.  The government’s Budget 2019 proposed $51.9 million over a period of five years, to regulating immigration and citizenship consultants, which began over 2019-2020.

The government’s current focus on fraud should be noted by all those seeking to apply, even where there is no issue of illegitimacy. The Department of Immigration, Refugees and Citizenship Canada will likely be carefully scrutinizing every citizenship application, and this means that all applicants can expect longer delays and heavier documentation requirements to result from these new developments. The bar is now very high.

Is your Canadian citizenship subject to revocation?

If you have been notified that the citizenship of yourself and/or your family members is set to be revoked, you have options. You have a right to have your case referred to Federal Court, which may be worthwhile if you believe the government made some error in alleging that your citizenship was obtained illegitimately. You may also have an opportunity to bring a humanitarian argument that an exception ought to be made in your circumstances, even where misrepresentation is admitted.

Are you seeking to apply for Canadian citizenship?

If you are seeking to apply for Canadian citizenship, it is important to be cognizant of these new developments. Your application must be thorough, complete, and must offer answers to any potential questions or concerns. This is particularly true if you have not met the requirements for physical presence in Canada. Time, cost and frustration can all be reduced by structuring a very thorough application. So too can the risk of failure.

Experienced immigration counsel can advise you and your family members on your likelihood of success, and can help you ensure that your application is as thorough and as persuasive as possible.

Our Immigration Law Group specializes in this area of law. We can assist you in exploring your legal options where revocation is at issue, and can also help ensure that an application for Canadian citizenship has the strongest possible chance of success.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He is a Certified Specialist in the fields of Immigration Law, Citizenship Law, and Refugee Law. He can be reached at wcreates@perlaw.ca or 613.566.2839.

Meeting the Residency Requirement in Applications for Canadian Citizenship

Last Updated: 9 April 2020.

Access the PDF version of this article here.

To be granted Canadian citizenship, the law requires a permanent resident to have been physically present in Canada for at least three of the past five years (1095 days) immediately before the date of the application. Most courts have called for a flexible approach to this requirement, allowing for longer physical absences from Canada so long as an applicant can prove that he or she “regularly, normally or customarily lives” or has a “centralized mode of existence” in Canada. While it has permitted sensitivity to the circumstances of individual permanent residents, the flexible approach has led to confusion and inconsistency, making it difficult to predict the outcome of a citizenship application where the residency requirement is not met.

One thing that is clear is that an application based on factors other than physical presence in Canada will be carefully scrutinized. Our firm has seen an increasing number of cases where an applicant was granted citizenship by a judge based on “centralized mode of existence”, and the judge’s decision was immediately appealed by Immigration, Refugees and Citizenship Canada (IRCC). Now more than ever, applicants must make a clear and convincing case that Canada is truly their home base.

When calculating your time in Canada:

  • only the five (5) years immediately before the date of your application are taken into account;
  • each day you were physically present in Canada as an authorized temporary resident or protected person before you became a permanent resident counts as half a day (up to a maximum of 365 days);
  • each day you were physically present in Canada after you became a permanent resident counts as one day;
  • time spent serving a sentence for an offence in Canada (e.g. serving a term of imprisonment, probation and/or parole) cannot be counted towards your physical presence – there are some exceptions.

Foreign Police Certificates

During the 4 years immediately before the date of your application, if you spent 183 days or more in a row (since the age of 18) in a country (other than Canada), you must provide a police certificate from each country. If you were in your country of origin immediately prior to becoming a permanent resident and landing in Canada and this time falls within this four year period, you are NOT required to provide a police certificate.

An application for citizenship that is not based on three years of permanent residence in Canada is never a guarantee. However, applicants can vastly increase their chances of a positive outcome by filing extensive evidence of ties to Canada. This could include evidence of property, assets, bank accounts, payment of taxes, memberships in clubs or associations, family members in Canada, frequent travel back to Canada, weak ties to other countries, or evidence that employment or education abroad is temporary. No one of these things is either essential or determinative, however, the more evidence of concrete ties to Canada and intention to maintain those ties, the stronger the likelihood of success.

Our Immigration Law Group specializes in this sometimes complicated area of law. We can help ensure that submissions on “centralized mode of existence” are as complete and persuasive as possible.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He is a Certified Specialist in the fields of Immigration Law, Citizenship Law, and Refugee Law. He can be reached at wcreates@perlaw.ca or 613.566.2839.

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