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Licensed Immigration Practitioners
Licensed Immigration Practitioners
In a nutshell: Refugees are people who are forced to leave their home countries because of serious human rights abuses.
A convention refugee is someone who has proved to the Refugee Protection Division that they are unable or unwilling to return to their country of origin or country of previous residence because they have a well-founded fear of persecution based on:
a) Race
b) Religion
c) Nationality
d) Political opinion
e) Being a member of a specific social group
A person in need of protection is someone who has proved to the Refugee Protection Division that they are unable or unwilling to return to their country of origin or country of previous residence because they would personally be subjected to danger, torture or a risk to their life or a risk of cruel and unusual punishment regardless of where they are in the country.
This does not include risk that is a product of the country’s inability to provide adequate health or medical care.
Whether you claim refugee as a convention refugee or a person in need of protection, you must provide the Refugee Protection Board with sufficient evidence and/or be credible in your testimony to prove your claim.
The right to asylum from persecution is an international human right. It is guaranteed by the 1951 Convention relating to the Status of Refugees (the “Refugee Convention”) of which Canada is a signaturee. However, The RPD is not a court of law and does not play by the same rules. By it's nature, each case is judged on it's own merits. Credibility is a huge factor. Proving the fear is not easy.
Subjective fear requires that the claimant's fear is genuine.
Objective fear requires a showing by credible, direct and specific evidence in the "record of facts" that would support a reasonable fear of persecution. This is where human rights data comes into play. It relies on known conditions in the country of origin. Regarding South African refugee claimants, See FAQ.
Be able to prove that the authorities were not willing or able to protect you.
Be able to prove that there was no other place within the country that you could find safety or protection.
The Convention also spells out the key responsibilities of states towards refugees, which include the obligation not to send refugees back to the country where they face persecution. (This is known as the principle of “non-refoulement”). This requires the same standard of proof. Your word or emotions do not carry weight without proof.
Am I eligible to make a claim?
a) Have already been granted refugee status in Canada or another country
b) Have been refused previously for refugee protection in Canada
c) Have had a prior claim that was determined to be ineligible, withdrawn or abandoned
d) Have committed crimes including, but not limited to, war crimes, crime against humanity, serious crimes outside the country of refuge or other acts that are contrary to the principles of the United Nations
Is an agreement between Canada and the United States that mandates that those claiming refugee must claim it in the first country that they arrive in before crossing the border and claiming it in the second country.
This includes a stop over in the US. A temporary stay over. A visit. NB There is currently a case that has been heard by the Supreme Court of Canada regarding this law. I will update once we know the come. Possibly Oct/Nov 2022.
The first exception is if the person making the claim
has a family member who is in Canada and
is a citizen,
permanent resident,
holds a work or
study permit or
is over the age of 18 and has an active Refugee matter before the Immigration Refugee Board (IRD).
The second exception is for unaccompanied minors, (under 18) who do not have parents or a spouse in the Canada or the USA.
The third exception include people who are in Canada legally ie: they have valid Canadian visas, study or work permit, travel document issued by Canada or do not require a visa to enter Canada but require one to enter the United States.
The last exception is for people who fall under the public interest exception.
This category applies to people who have been convicted of a crime that holds the death penalty as a potential sentence.
It is important to note that even if you meet any of these exceptions, you must prove that you are eligible for a refugee claim in Canada by meeting all the other requirements.
After the hearing at the REFUGEE PROTECTION DIVISION, (RPD) a claimant will be granted status either as a Convention Refugee or as a Protected Person. This occurs if the panel finds that the claimants case as judged on it's merits, is plausible and agrees that the person has a rational reason for fear for their life. If you are granted status as a convention refugee or protected person, you may apply for permanent residency. The snake in the bucket is that the Minister retains the right to appeal to the Refugee Appeal Division (RAD) if they believe that the RPA made an error in their decision.
The Minister is also able to make an application to revoke your status as a refugee. This could occur under a number of circumstances INCLUDING:
1.if you travel back to the country that you claimed refuge from.
2. if you apply for or travel on a passport of the country that you claimed refuge from.
3. if the reason that you claimed refuge dissipates. Ex, the war is over, a change of government takes place.
4. if at any point of the claim, you are found to have lied on your application. This falls under misrepresentation.
If the RPD finds that the claimant is to be refused, the conditional removal order that you received when you made your claim, becomes effective and you will be given a certain amount of the time in which to leave the country. The conditional removal order will become effective within a designated time period unless you have the right to appeal to the RAD.
For information on the ability of South Africans to claim refugee status in Canada, please see our BLOG.