Who is a refugee?
A refugee is someone who the Canadian government says is not able to return to their country because they may experience violence, harm or persecution due to their race, religion, nationality, political opinion or social group. They cannot live safely in their own country and must ask another country to provide them protection.
An individual arriving in Canada may apply to be recognized as a refugee. This right comes from the 1951 United Nations Refugee Convention and its 1967 Protocol. If you apply for refugee protection you are called an asylum seeker, or refugee claimant if you are in Canada.
You may have lived through a frightening experience or faced serious injustice in your country of origin. Or, you may be afraid to return to your country because it is dangerous or difficult to find work. These facts do not mean that you will automatically qualify for refugee protection.
Every refugee claimant who asks for refugee protection must show that they meet the legal definition for a Convention Refugee or a Person in Need of Protection by making an application for refugee protection and going through the claim process. The legal definitions of these terms are found in sections 96 and 97 of Canada’s Immigration and Refugee Protection Act.
Convention Refugee definition
To meet the definition of Convention Refugee, you must show that you meet all six parts of the definition below:
- If I return to my country, there is a serious possibility I will face persecution,
- This persecution is based on my: race / religion / nationality / political opinion / or membership in a particular social group,
- I am genuinely afraid to return to my country,
- I have good reason to be afraid based on the situation in my country,
- My government cannot protect me,
- I cannot live safely in any other part of the country or it is not reasonable for me – given who I am – to move to another part of the country.
Person In Need of Protection definition
To meet the definition of Person In Need of Protection, you must show show that Part 1 OR 2 below is true for you:
- If I return to my country, I am likely to face torture by the authorities in my country.
- If I return to my country, I am likely to face risk to my life, or risk of cruel and unusual treatment or punishment,
- My government cannot protect me,
- I cannot live safely in any other part of my country or it is not reasonable for me – given who I am – to move to another part of my country,
- This risk is specific to and directed at me, NOT a general risk shared by/faced by everyone in my country,
- This risk is NOT because my country wants to punish me for committing an act which is a crime in Canada,
- This risk is NOT because of inadequate medical care in my country.
- My government cannot protect me,
Am I eligible to make a refugee claim?
If you ask for refugee protection you will first be assessed by the Canadian government to determine if you are eligible (allowed) to make a refugee claim in Canada.
It is important that you understand what the eligibility requirements are so that you know whether you are allowed to make a refugee claim in Canada. Get legal advice before making a refugee claim.
You may not be eligible to make a refugee claim in Canada if:
- You have convention refugee status in another country that you can return to
- You made a refugee claim in United States, United Kingdom, Australia, or New Zealand
- You previously made a refugee claim in Canada that was refused, abandoned, or withdrawn
- You have previously been found ineligible to make a refugee claim in Canada
- You pose a danger to public security or have committed a serious crime or a human rights violation
- You have previously been granted protected person status in Canada
- You currently have an active removal order from the Canadian government
- You went to a United States-Canada land border and were told by a CBSA officer that you cannot enter due to the STCA.
The Safe Third Country Agreement (STCA)
Canada and the USA have an agreement called the STCA that can make it difficult for you to make a refugee claim at an official land border crossing, unless you meet certain requirements called “exceptions.” A border official will ask you questions to see if you meet any of the exceptions.
The exceptions are:
- You have a family member in Canada
- You are an unaccompanied minor without a parent or legal guardian in the United States
- You have a valid Canadian visa, study permit or work permit
- You have been convicted or charged with an offence and are facing the death penalty in the United States or in your country
- You are stateless
- You are a citizen of the United States.
Even if you pass the STCA exceptions you still have to do an eligibility interview.
If you are found ineligible to make a refugee claim you may be removed from Canada. If possible, speak to a lawyer or legal representative to find out if there are any other options for you to remain in Canada.
Brief overview of the refugee claim process in Canada
When you apply for refugee protection in Canada, you make a refugee claim. To succeed in your refugee claim, you must show that you meet the Canadian definition of a refugee. You must also show that you are telling the truth. You can do this by gathering evidence and by being honest, clear and detailed about what happened to you.
Making your refugee claim
The first step in making a refugee claim is to tell the Canadian government that you want to apply for refugee protection. You must be in Canada to make a refugee claim. There are two places and processes to do this:
- If you are at the border, airport, or detention centre – tell the CBSA officer that you want to make a refugee claim, or
- If you are inside Canada – complete an application for refugee protection and submit it to IRCC.
CBSA or IRCC will decide if you are eligible or not eligible to make a refugee claim in Canada. If they decide you are eligible, your refugee claim will be sent to the IRB-RPD.
Your refugee claim hearing
You will have a refugee hearing where your request for protection will be decided. To be successful at your refugee hearing, you must provide evidence that shows you meet the legal definition of either Convention Refugee or Person in Need of Protection. The IRB-RPD will consider which definition applies to you when assessing your claim. If you are a citizen or permanent resident of more than one country, you must show that you are at risk in each country.
At your hearing, an IRB-RPD decision maker, called the Member, will consider your oral testimony, the testimony of your witnesses, your BOC Form, the referral package from IRCC or CBSA, and any other evidence submitted to decide if you qualify for refugee protection.
After your refugee claim hearing
After your hearing you will be told whether your refugee claim is accepted or rejected. If it is accepted you can apply for Permanent Residence. If your claim is rejected, you may be able to appeal your negative decision. You can speak to a lawyer or legal representative to find out about your options.