The Refugee Claim Process

Overview

Canada recognizes two main classes of protected persons: Convention refugees (IRPA s.96) and persons in need of protection (IRPA s.97). A Convention refugee is a person outside their country of nationality who has a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion. A person in need of protection is a person who would personally face a danger of torture, a risk to their life, or a risk of cruel and unusual treatment or punishment if returned.

The refugee claim process in Canada allows eligible individuals to apply for protection while in Canada. This process is governed by the Immigration and Refugee Protection Act (IRPA). Eligibility to have a claim referred is decided by an officer of Immigration, Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA) (IRPA s.100); the claim itself is decided by the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB).

Eligibility Criteria

Under IRPA s.96, a claimant is a Convention refugee where:

• The person is outside their country of nationality (or, if stateless, their country of former habitual residence)
• The person has a well-founded fear of persecution based on one of the five Convention grounds
• The person is unable or, because of that fear, unwilling to avail themself of the protection of that country
• The person is not excluded under Article 1E or 1F of the Refugee Convention (IRPA s.98), which covers, among other things, serious non-political crimes and crimes against peace, war crimes, and crimes against humanity

Separately, IRPA s.101 lists claims that are ineligible to be referred to the RPD at all, including a claim by a person who already made a claim in Canada that was rejected, withdrawn, or abandoned, a person who arrived from the United States by land (subject to the Safe Third Country Agreement and its exceptions), and, for entries after June 24, 2020, a claim made more than one year after the person's entry to Canada.

The five protected grounds are: race, religion, nationality, political opinion, and membership in a particular social group. The IRB has issued Chairperson's Guidelines on gender considerations and on sexual orientation, gender identity and expression, which guide how the "particular social group" ground is applied in such claims.

The definitions in IRPA ss.96 and 97 are framed around the individual claimant's fear or risk. For a person in need of protection, s.97(1)(b) expressly requires that the risk be one the person would face personally and that it not be faced generally by other individuals in or from that country.

How to File a Claim

The method of making a claim depends on where the person is. A person arriving at a port of entry (airport, land border, or seaport) makes the claim to a CBSA officer. A person already in Canada submits an inland claim to IRCC through the IRCC Portal.

• At a Port of Entry: The CBSA officer examines whether the claim is eligible to be referred to the RPD (IRPA s.100). If it is referred, the Basis of Claim (BOC) Form must be provided to the RPD within 15 days of the referral (IRPR s.159.8(2)).
• Inland Claim: The claim is submitted online through the IRCC Portal, including the completed BOC Form. IRCC then schedules an eligibility interview at a local office. Paper submission is available only on request where a person cannot use the portal. The BOC Form for an inland claim is due no later than the day the officer determines eligibility (IRPR s.159.8(1)).

IRCC's application guide states that each claim submitted through the portal receives its own application number, and that a person previously issued an IRCC document already has a Unique Client Identifier (UCI). If the claim is found eligible and referred, the RPD contacts the claimant with the next steps, and the claimant receives a Refugee Protection Claimant Document.

Determination Process

The refugee determination process involves several key steps:

1. Eligibility Determination: An IRCC or CBSA officer decides whether the claim is eligible to be referred to the RPD (IRPA ss.100 and 101). An eligible claim is referred to the RPD.
2. Basis of Claim Form: The BOC Form sets out the claimant's identity, history and the reasons for the claim. For inland claims it is given to the officer by the eligibility determination; for port of entry claims it is filed with the RPD within 15 days of referral (IRPR s.159.8).
3. Hearing Date: IRPR s.159.9 provides that the hearing date is fixed from the date of referral, and that the RPD may set a later date for reasons of fairness and natural justice, pending investigations, or the Division's operational limitations.
4. RPD Hearing: IRPA s.170 requires the RPD to hold a hearing, unless the Minister has not given notice of an intention to intervene and the Division allows the claim without a hearing. A single Member decides the claim.
5. Decision: The Member may give the decision and reasons orally at the end of the hearing, or reserve and issue written reasons later.

Timelines and Wait Periods

Processing times vary significantly depending on case complexity, the volume of claims, and whether additional information is needed.

• Hearing Date: IRPR s.159.9 sets the outer time limits for the hearing date, counted from the day the claim is referred to the RPD, and allows the RPD to set a later date. The IRB publishes current scheduling information on its website; this page does not reproduce figures because they change.
• Decision: A decision may be delivered orally at the hearing or in writing afterwards. The IRB does not publish a fixed decision deadline in the Regulations.

While the claim is pending, a claimant whose claim has been referred to the RPD and who cannot support themself without public assistance may apply for a work permit (IRPR s.206), and may be covered by the Interim Federal Health Program. IRCC's page for claimants describes these supports.

Your Refugee Hearing

The hearing before the RPD is the claimant's opportunity to give evidence and explain the need for protection. The IRB states that RPD hearings are scheduled as virtual hearings by default; a party may ask for a different format.

At the hearing the Member may question the claimant and any witnesses (IRPA s.170(d.1)), and the claimant and the Minister must each be given a reasonable opportunity to present evidence, question witnesses and make representations (IRPA s.170(e)). The Minister may give notice of an intention to intervene, in which case Minister's counsel may also question the claimant and make submissions. Under IRPA s.167(1) a claimant may be represented, at their own expense, by legal or other counsel. Legal aid for refugee claims is provided by provincial legal aid plans and depends on the province and the plan's eligibility rules.

Supporting documents should be brought to the hearing: travel documents, photographs, correspondence, evidence of family relationships, medical or psychological reports, and any documents about country conditions. The RPD is not bound by technical rules of evidence and may base its decision on evidence it considers credible or trustworthy (IRPA s.170(g) and (h)), so credibility and consistency matter.

Common Pitfalls to Avoid

• Inconsistent Statements: Telling different versions of your story at different times can destroy your credibility, even if the differences are minor or relate to details you forgot initially.
• Failing to Appear: Under IRPA s.168, the RPD may declare a claim abandoned if the claimant is in default, including by failing to appear for a hearing or to provide required information. RPD Rule 65 (SOR/2012-256) requires the RPD to give the claimant an opportunity to explain why the claim should not be declared abandoned, at a special hearing held no later than five working days after the missed hearing date. An abandoned claim cannot be appealed to the RAD (IRPA s.110(2)(b)).
• Insufficient Documentation: While you are not required to have extensive documents, credible evidence supporting key aspects of your claim strengthens your case significantly.
• Overstating Your Case: Exaggerating details or adding information that cannot be verified may backfire. Adherence to verifiable facts strengthens the case.
• Not Seeking Legal Help: A representative can help organize your evidence, prepare you for questioning, and identify legal issues that strengthen your claim.

After Your Decision

If the claim is accepted, the claimant becomes a protected person. A protected person is not a permanent resident; permanent residence is a separate application under IRPA s.21(2), which a protected person may make as soon as the decision is issued. There is no waiting period. Family members inside or outside Canada may be included in that application (IRPR s.176).

If the claim is rejected, most claimants may appeal to the Refugee Appeal Division (RAD) under IRPA s.110. IRPA s.110(2) lists decisions that cannot be appealed, including claims found to have no credible basis or to be manifestly unfounded, and abandoned or withdrawn claims. Under IRPR s.159.91 the notice of appeal must be filed within 15 days of receiving the written reasons and the appeal must be perfected within 30 days of receiving them. The RAD generally decides without a hearing, on the RPD record and written submissions (IRPA s.110(3)).

A RAD decision, or an RPD decision that cannot be appealed, may be the subject of an application for leave and judicial review in the Federal Court under IRPA ss.72 to 74. A pre-removal risk assessment (IRPA s.112) and an application on humanitarian and compassionate grounds (IRPA s.25) are separate processes with their own eligibility rules and bars.