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 dismissal means the IRB panel member concluded that you have not established a well-founded fear of persecution or that you do not face a risk that would qualify you for protection under Canadian law.
Receiving a dismissal is difficult, but it does not mean your journey in Canada necessarily ends. There are several options available to you after a claim dismissal, including appeals, applications for other forms of protection, and opportunities to request stays of removal. Understanding these options quickly is important, as some have strict time limits.
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. The letter will outline the key issues, the evidence considered, and the legal findings. It will also provide information about your rights to appeal and the timeframe for filing an appeal.
Receiving Your Decision
Decisions are mailed to the last known address on file with the IRB. Ensuring the IRB has the current mailing address is critical, as missing notification of a dismissal could prevent timely appeal filing. Email notification is also possible if an email address has been provided.
Acting Quickly
Upon receiving notification of dismissal, immediate action is necessary. Consulting with an immigration lawyer or representative is a critical first step. Time is critical, as appeals and other applications have strict deadlines. Seeking legal advice without delay is important.
Appeal Options to the Refugee Appeal Division
If your refugee claim is dismissed, you may be able to appeal the decision to the Refugee Appeal Division (RAD), which is part of the Immigration and Refugee Board. An appeal may succeed if there was an error in law or fact by the panel member.
Grounds for Appeal
An appeal to the RAD is available only on specific grounds. You can appeal if there was a failure to observe a principle of natural justice, an error in law, an error in fact, or a new fact that arose after the hearing and that could have affected the decision. You cannot simply appeal because you disagree with the decision; there must be a specific legal or factual error.
Deadline for Filing an Appeal
A deadline of 30 days from receiving the dismissal decision exists for filing an appeal to the RAD. This is a firm deadline, and extensions are rarely granted. Missing this deadline means the right to appeal is lost, which is why acting quickly is essential.
Stay of Removal During Appeal
When filing an appeal, a stay of removal can be requested, which prevents the Canada Border Services Agency from removing the individual while the appeal is decided. The stay is not automatic; it must be requested and demonstration of irreparable harm if removed while the appeal is pending is necessary.
Appeal Process
The RAD reviews the decision of the panel member to determine whether a reviewable error occurred. The RAD does not hold a new hearing; rather, it reviews the written decision and the evidence that was considered. Written arguments can be submitted explaining why an error is believed to have occurred. The RAD then issues a written decision, either allowing the appeal or upholding the original dismissal.
Pre-Removal Risk Assessment (PRRA)
A Pre-Removal Risk Assessment (PRRA) is an alternative application you can file after your refugee claim is dismissed. A PRRA allows you to present evidence of risks in your country of origin that may not have been considered in your refugee claim.
What is a PRRA?
A PRRA is a separate assessment conducted by an Immigration, Refugees and Citizenship Canada (IRCC) officer to determine whether you would face a risk of torture, death, or cruel and unusual punishment if removed to your country of origin. The PRRA examines risks that may not fall under the refugee definition but that still warrant protection under international human rights standards.
When to Apply for a PRRA
Application for a PRRA is possible after a refugee claim is dismissed. It is advisable to apply within a reasonable time after receiving the dismissal, preferably before filing an appeal to the RAD. If new information about risks in the country is available that was not present during the refugee hearing, a PRRA may be particularly appropriate.
PRRA Grounds
To succeed in a PRRA, establishment of a substantial risk of torture, death, or cruel and unusual punishment if returned is required. This is a different legal standard than the refugee definition and may be easier to establish in some cases.
PRRA Approval and Stay of Removal
If the PRRA is approved, protected person status is granted in Canada. If the PRRA is rejected, consulting with a lawyer about whether a stay of removal is available and what further options may exist is advisable.
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 H&C application requests that the Minister of Immigration grant an exemption to normal immigration requirements based on humanitarian and compassionate considerations. Unlike a refugee claim, an H&C application is not based on persecution or risk, but on factors such as your ties to Canada, hardship of removal, and family considerations.
Grounds for an H&C Application
H&C applications succeed based on various grounds. Family members in Canada who would suffer hardship from removal is a strong factor. Establishment in Canada through work, study, or community involvement demonstrates ties to Canada. Removal being particularly harsh on a child invokes the best interests of the child principle. Facing unusual and undeserved hardship if removed may be considered.
Timeline and Processing
H&C applications can be filed at any time but should be filed before removal from Canada occurs. Processing times for H&C applications vary significantly, from several months to several years. While an H&C application is pending, application for a stay of removal to prevent removal from Canada is possible.
Timeline for Removal
When a refugee claim is dismissed and no appeal is filed, other forms of protection are not applied for, or a stay of removal is not obtained, the individual becomes subject to removal from Canada. Understanding the timeline for removal is important for taking protective action.
After Dismissal
Once a claim is dismissed and the 30-day appeal period has ended (if no appeal is filed), the removal stay that provided protection during the claim process expires. The Canada Border Services Agency (CBSA) may then issue a removal order and enforce it.
CBSA Notification
Before removing an individual, the CBSA must provide notice of the removal order and information about how to appeal or seek a stay of removal. If additional applications (PRRA or H&C) have been filed, notifying the CBSA of these applications is important, as they may halt removal enforcement.
Voluntary Departure
The option exists to leave Canada voluntarily before the CBSA enforces a removal order. Voluntary departure may be preferable to forced removal, as it may facilitate future re-entry and does not have the same immigration consequences as a forced removal.
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
An immigration lawyer can advise you on whether an appeal is viable, help prepare an appeal, and represent you in the RAD appeal process. A lawyer can also assess your options for PRRA or H&C applications and advise on the best strategy.
Legal Aid
Many provinces provide legal aid coverage for appeals to the RAD. Applicants should apply for legal aid promptly after receiving a dismissal decision, as the approval process can take time and the appeal deadline is strict.
Non-Profit Organizations
Immigration and refugee advocacy organizations often provide free or low-cost legal assistance to help with appeals and other applications. Contact local immigrant settlement agencies or legal aid clinics for assistance.
Importance of Acting Quickly
Delaying in seeking legal assistance is not advisable. The 30-day appeal deadline is firm, and missing it means losing the right to appeal. Immediate action upon receiving the dismissal decision to explore all available options is critical.