Understanding Claim Dismissal
If the Immigration and Refugee Board (IRB) determines that you do not meet the legal criteria for refugee protection, your claim will be dismissed. A rejection means the Refugee Protection Division member concluded that the claimant is neither a Convention refugee under IRPA s.96 nor a person in need of protection under IRPA s.97.
Receiving a dismissal is difficult, but it does not mean your journey in Canada necessarily ends. Several options may exist after a claim is rejected: an appeal to the Refugee Appeal Division, an application for leave and judicial review in the Federal Court, a pre-removal risk assessment once one is offered, and, after a waiting period, an application on humanitarian and compassionate grounds. Each has its own time limit set out in the Act or the Regulations.
How You Will Be Notified
When the IRB makes a decision on a claim, written notification will be provided. Understanding what information this notification contains is important for knowing what actions the individual must take next.
Decision Letter Content
Your decision letter will explain why the panel member determined that you did not meet the criteria for protection. Under IRPA s.169, the Refugee Protection Division gives written reasons when it rejects a claim. The notice of decision and reasons are what start the appeal period under s.159.91 of the Immigration and Refugee Protection Regulations.
Receiving Your Decision
The IRB sends the notice of decision and written reasons to the claimant and any counsel of record at the contact information on file. The 15-day period for filing a notice of appeal under Regulations s.159.91(1)(a) runs from the day the claimant receives the written reasons, so out-of-date contact information can shorten the time available.
Acting Quickly
The time limits that follow a rejection are short: 15 days to file a notice of appeal and 30 days to perfect it (Regulations s.159.91), or 15 days to file for leave for judicial review where no appeal lies (IRPA s.72(2)(b)). Under IRPA s.49(2)(c) and (d), the conditional removal order comes into force 15 days after notice of the rejection where there is no right of appeal, or when the appeal time limits expire without an appeal being filed and perfected.
Appeal Options to the Refugee Appeal Division
A rejected claimant may be able to appeal to the Refugee Appeal Division (RAD), which is part of the Immigration and Refugee Board. Under IRPA s.110(1) the appeal lies on a question of law, of fact, or of mixed law and fact.
Grounds for Appeal
The appeal is on a question of law, of fact, or of mixed law and fact (IRPA s.110(1)). Under IRPA s.110(2) no appeal lies in several situations, including where the Refugee Protection Division stated that the claim has no credible basis or is manifestly unfounded, where the claim was withdrawn or abandoned, where the claimant is a designated foreign national, or where the claim was referred only because of an exception to the Safe Third Country Agreement. Under IRPA s.110(4) the appellant may present only evidence that arose after the rejection, or that was not reasonably available or could not reasonably have been expected to be presented at the time of the rejection.
Deadline for Filing an Appeal
Under Regulations s.159.91(1), the notice of appeal is to be filed within 15 days after the day the claimant receives the written reasons, and the appeal is to be perfected within 30 days after that day. Under s.159.91(2) the RAD may extend either time limit for reasons of fairness and natural justice. Where no appeal is filed and perfected within the time limits, the conditional removal order comes into force under IRPA s.49(2)(d).
Stay of Removal During Appeal
Under Regulations s.231(1), a removal order is stayed automatically while an appeal to the RAD is pending, and while an application for leave and judicial review of a RAD decision is pending, until the time limits for those steps expire without action or the proceedings are finally decided. The stay does not apply to a designated foreign national.
Appeal Process
Under IRPA s.110(3) the RAD proceeds without a hearing, on the basis of the record of the Refugee Protection Division, together with any new evidence admitted under s.110(4) and written submissions. Under s.110(6) the RAD may hold a hearing where new documentary evidence raises a serious issue about the claimant's credibility that is central to the decision and would justify a different outcome. Under IRPA s.111(1) the RAD may confirm the decision, set it aside and substitute its own determination, or refer the matter back to the Refugee Protection Division for redetermination.
Pre-Removal Risk Assessment (PRRA)
A pre-removal risk assessment (PRRA) is an application for protection under IRPA s.112 that is available only to a person in Canada who is subject to a removal order that is in force (s.112(1)). It is not an immediate alternative to an appeal: under IRPA s.112(2)(b.1), a person whose claim was rejected, abandoned or withdrawn may not apply until 12 months have passed since the last rejection (36 months for a national of a country designated under IRPA s.109.1, and no country is currently designated), unless the rejection was based on Article 1E or 1F of the Refugee Convention or the Minister has exempted that country under s.112(2.1).
What is a PRRA?
A PRRA is decided by an officer on behalf of the Minister of Immigration, Refugees and Citizenship. Under IRPA s.113(c), for most applicants the assessment applies the same grounds as a refugee claim: persecution on a Convention ground (s.96) and danger of torture, risk to life or risk of cruel and unusual treatment or punishment (s.97). Under s.113(a), an applicant whose refugee claim was rejected may present only new evidence that arose after the rejection or that was not reasonably available or could not reasonably have been expected to be presented at the hearing.
When a PRRA Becomes Available
Under Regulations s.160(1) and (3), a person may apply for protection only after the Department gives them notification that they may do so, and that notification is given before removal. IRCC's guidance states that a Canada Border Services Agency officer tells the person whether they are eligible once removal proceedings begin. Under Regulations s.162, an application received within 15 days after notification is not decided until at least 30 days after notification, and the removal order is stayed under s.232 from the notification until the application is decided or the time to apply passes.
PRRA Grounds
For an applicant not described in IRPA s.112(3), the grounds are those in IRPA s.96 to s.98 (s.113(c)). For an applicant described in s.112(3), which covers persons found inadmissible on grounds of security, human or international rights violations or organized criminality, persons inadmissible for serious criminality on the basis of a conviction carrying a maximum term of at least 10 years, persons whose refugee claim was rejected on the basis of Article 1F of the Refugee Convention, and persons named in a security certificate, the assessment is limited to the s.97 factors weighed against the danger the person presents (s.113(d)).
PRRA Approval and Stay of Removal
Under IRPA s.114(1)(a), a positive PRRA confers refugee protection and the applicant becomes a protected person, except that for an applicant described in s.112(3) the effect under s.114(1)(b) is only a stay of the removal order in respect of the country of risk. A negative PRRA decision may be judicially reviewed by the Federal Court with leave (IRPA s.72), within 15 days of notification (s.72(2)(b)); filing that application does not by itself stay removal under Regulations s.231, which is limited to RAD appeals and reviews of RAD decisions.
Humanitarian and Compassionate Applications
A Humanitarian and Compassionate (H&C) application is another avenue available after a refugee claim dismissal. H&C applications are based on factors like establishment in Canada, hardship, and the best interests of children.
What is an H&C Application?
An application under IRPA s.25(1) asks the Minister to grant permanent residence, or an exemption from a requirement of the Act, on humanitarian and compassionate considerations, taking into account the best interests of any child directly affected. Under IRPA s.25(1.3), the Minister may not consider the factors in s.96 and s.97 on such an application, but must consider elements related to hardship.
Grounds for an H&C Application
The considerations commonly weighed are establishment in Canada, family ties and the effect of separation, the best interests of any child directly affected, which IRPA s.25(1) expressly requires the Minister to take into account, and the hardship of leaving Canada. IRPA s.25(1.3) directs the Minister to consider elements related to hardship rather than the risk factors in s.96 and s.97.
Timeline and Processing
Under IRPA s.25(1.2), the Minister may not examine an H&C request while a refugee claim is pending before the Refugee Protection Division or the Refugee Appeal Division, or where fewer than 12 months have passed since the claim was last rejected, abandoned or withdrawn, unless one of the exceptions in s.25(1.21) applies (a risk to life from inadequate health or medical care in the country of return, or an adverse effect on the best interests of a directly affected child). A pending H&C application does not stay a removal order. IRCC publishes current processing times on canada.ca.
Timeline for Removal
A removal order is already made against a claimant when the claim is referred; it is a departure order (Regulations s.228(3)) and is conditional until one of the events in IRPA s.49(2) happens.
After Dismissal
Under IRPA s.49(2)(c) to (e), the conditional removal order comes into force 15 days after notice of the rejection where there is no right of appeal; where an appeal is available but is not filed and perfected in time, on the later of the day after the time limit expires and 15 days after notice of the rejection; and where the Refugee Appeal Division rejects the claim, 15 days after the RAD gives notice of its decision. Once in force, the order is enforced by the Canada Border Services Agency (CBSA).
CBSA Notification
Under Regulations s.160(3), a person subject to a removal order who is eligible for a pre-removal risk assessment is notified of that before removal, and under s.232 the removal order is stayed from that notification until the application is decided, abandoned or not made in time. A pending H&C application does not stay removal, and a pending Federal Court application does so only in the cases listed in Regulations s.231 or where the Court orders a stay.
Voluntary Departure
Because the order against a claimant is a departure order, Regulations s.224(2) provides that the person must leave Canada and confirm their departure within 30 days after the order becomes enforceable, failing which the departure order becomes a deportation order. Under s.224(3) that 30-day period is suspended while the person is detained or the order is stayed. Under Regulations s.224(1), a person who complies with a departure order may later return to Canada without the officer's authorization that IRPA s.52(1) otherwise requires after a removal order has been enforced.
Getting Legal Help After Dismissal
After your refugee claim is dismissed, legal assistance is more important than ever. The stakes are high, and the procedural requirements for appeals and other applications are strict.
Immigration Lawyers
A lawyer who is a member of a provincial or territorial law society, a paralegal licensed by the Law Society of Ontario, a notary of the Chambre des notaires du Quebec, or a licensee of the College of Immigration and Citizenship Consultants may represent a person for a fee on an appeal, a PRRA or an H&C application; IRCC publishes that list and links to each register.
Legal Aid
Legal aid for refugee matters is a provincial or territorial program, and coverage for RAD appeals varies by province. Because the 15-day notice of appeal period under Regulations s.159.91 runs from receipt of the written reasons, the timing of a legal aid application affects how much of that period remains.
Non-Profit Organizations
Community legal clinics and settlement agencies may provide free or low-cost assistance with appeals and other applications. Anyone paid to represent a person must be an authorized representative, and IRCC's list of authorized representatives links to each professional register.
Importance of Acting Quickly
The notice of appeal period is 15 days from receipt of the written reasons and the appeal is to be perfected within 30 days (Regulations s.159.91), with extensions possible only where the RAD finds it fair and just. Where no appeal lies, the leave application for judicial review is due within 15 days (IRPA s.72(2)(b)). Once those periods pass without action, the removal order comes into force under IRPA s.49(2).