What Happens When a Refugee Claim is Denied
How to Fight A Removal Order
When arriving in Canada as a refugee, often your worst fear is being sent back home to face violent and unstable living conditions. So, if your refugee claim is denied and a removal order is issued, it can feel as if your worst nightmare is coming to life.
Fortunately, there are ways to fight a removal order and remain in Canada. Keep reading to learn more about this process.
What Happens If Your Refugee Claim is Denied
In the event that your refugee claim is denied by a judge, a removal order requiring you to leave the country is typically issued.
There are three different types of removal orders, each with its own terms and conditions.
Departure Order
When a Departure Order is issued, you must leave Canada within 30 days after the order takes effect.
However, if you do not challenge your departure order and comply with its requirements, there is a chance that you may return to Canada at some point in the future if you meet the entry requirements at that time.
If you leave Canada after the 30-day period, or do not confirm your departure with Canada Border Services Agency, your Departure Order will automatically become a Deportation Order.
If this occurs, you will only be able to return to Canada in the future by obtaining an Authorization to Return to Canada (ARC).
Exclusion Order
An Exclusion Order is different from a departure order in that you cannot return to Canada for one year if one is issued.
If you wish to return before the 12 months have passed, you must apply for an ARC.
However, if an exclusion order was issued due to misrepresentation in your refugee application, you won’t be able to return to Canada for five years.
Deportation Order
A Deportation Order is the most serious removal order of the three and carries the heaviest consequence. Not only does a deportation order require you to leave the country, but it permanently bars you from ever returning to Canada unless you apply for an ARC.
Steps to Take If You Have Been Issued a Removal Order
While there are different channels you can take in hopes of having your removal order overturned, time is of the essence.
So, if you find yourself in a position where a removal order has been issued against you, it’s important to act quickly, as you often only have two weeks or less to take action before your date of removal.
You won’t be able to overturn a removal order cannot appeal a removal order if you have:
- Come to Canada fraudulently
- Have been involved in organized crime
- Have been convicted of a serious crime and sentenced to more than two years in prison
- Are deemed a security threat to Canada
- Have violated international or human rights in any way
If none of the above criteria apply to you, here are the steps you should follow if you are issued a removal order.
Hire A Lawyer
If you plan to fight your removal order, the first – and most important – thing you must do is hire an immigration lawyer.
These types of situations are extremely complex, time-sensitive, and far too important to handle on your own.
An immigration lawyer will explain to you your options for fighting your removal order and fight on your behalf to ensure you are able to remain in Canada.
Appeal
If you received a negative decision on your refugee claim and were issued a removal order, you may be able to appeal to the Refugee Appeal Division (RAD) at the Immigration and Refugee Board of Canada (IRB). Speak to your lawyer to find out if you are eligible for an appeal.
Head over to our recent blog article to learn more about the refugee appeal process.
Pre-Removal Risk Assessment
Those who have been issued a removal order may also be eligible for a Pre-Removal Risk Assessment (PRRA).
A PRRA is a written application allowing you to explain why you’re afraid to return to your country and whether you would face immediate danger or risk of persecution. You must also provide documents that support these fears.
Your eligibility for a PRRA depends on several factors, such as:
- If there is a removal order against you
- You have made a refugee claim
- How much time has passed since your refugee claim was rejected
- Whether you have already made a refugee claim in another country that has an information-sharing agreement with Canada
If your PRRA is approved, you will be granted protected status and be able to apply for permanent residency in most cases.
Judicial Review
Another avenue for challenging a judge’s decision in your refugee case is to apply to the Federal Court for a Judicial Review.
Again, be sure to seek assistance from an immigration and refugee lawyer if you plan to ask for a judicial review.
The Judicial Review process requires your lawyer to attend a court hearing and explain why you believe that the original IRB decision was wrong and why you should be able to remain in Canada.
Your lawyer will be required to present an arguable case in order for the Court to grant leave and schedule a hearing.
Humanitarian and Compassionate Grounds
If you have been issued a removal order, you may also be eligible to apply to stay in Canada on Humanitarian and Compassionate (H&C) grounds, unless certain restrictions apply to you.
If successful, this avenue will grant you permanent residency in Canada.
However, it’s important to note that H&C grounds are only successful in cases where your argument for staying in Canada is compelling enough based on all the relevant factors:
- You have strong ties to Canada
- You are financially stable or have financial assistance through family
- You are integrated into Canadian society
- You have family members living in Canada
- You speak English and/or French
- You are furthering your education in Canada
- If you return to your home country, you would suffer hardship
- You have no way to reintegrate your home country should you return
- Your inability to leave Canada has led to your establishment in Canada
- You have very unique and exceptional circumstances for wanting to remain in Canada
Another important thing to remember is that H&C decision makers do not consider risk factors like persecution, risk to life, or risk of cruel and unusual treatment or punishment.
So, if you are in danger of any of the above risk factors by returning to your country of origin, speak with an immigration lawyer to determine the best course of action.
Canadian Citizenship Amongst Immigrants Remains Low but Expected to Increase Dramatically
Number of Immigrants Becoming Canadian Citizens Estimated to Increase By 40% By 2024
While recent numbers from Statistics Canada reveal a shockingly low number of immigrants have been able to obtain citizenship over the past 20 years, change appears to be on its way as these numbers are expected to surge over the next four years.
According to the report, the citizenship rate among recent immigrants has dropped significantly from 75 per cent in 1996 to just 60 per cent in 2016.
For newcomers who have left their homes in search of a better life in Canada, obtaining citizenship is a significant event that marks the beginning of their new journey as a Canadian with the same rights as those born in Canada.
These rights include the ability to enter or leave Canada freely without restriction, the right to obtain a Canadian passport, and most importantly, vote in Canadian elections.
Why the Steep Decline?
So then why are 40% of immigrants choosing to forgo pursuing their Canadian citizenship? A few factors may be at play.
Back in 2014, the federal government increased the citizenship application fee from $100 to $300. By 2015, it was increased again to $530.
And while the fee for children was kept the same, an additional $100 “right of citizenship fee was also added.
This means that for an entire family, the cost of citizenship could total over $1,500, which may be one indication as to why immigrant families have been unable to apply for citizenship.
Another factor being cited for low citizenship rates is the difficult to understand language in the most recent version of the study guide used to help immigrants prepare for their citizenship test.
The guide was revised around 10 years ago, and according to CBC, critics have said it includes more sophisticated language that may be difficult for newcomers with limited English capabilities to understand.
Change on The Horizon
Despite the concerning trend over the last 20 years, change very well may be headed our way.
A strong indication of this is the fact that the current federal government led Prime Minister Justin Trudeau promised to eliminate the costly citizenship application fee altogether during the most recent federal election.
The Liberals also promised $110 million in funding for processing citizenship applications between 2023 and 2024.
That’s an increase of $35 million compared to the funding for this coming federal government fiscal year. This 40 per cent increase in spending is expected to translate to a 40 per cent increase in new citizens by 2024.
Another indication that change is on the way is the fact the citizenship applications surged in 2017 when certain residency and language rules were loosened by the federal government.
Whether these new changes will actually impact citizenship rates is still unknown.
But if the increase reported in 2017 is any indication, it’s safe to say that many immigrants will find themselves one step closer towards becoming official Canadians with full rights and privileges that citizenship offers.
A Guide to the Canadian Refugee Appeal Process
How to Appeal a Refugee Decision in Canada
As a refugee who has come to Canada to seek a better life free of fear of violence and persecution, having your refugee claim denied can be your worst nightmare. Fortunately, these decisions are not final, and you can appeal them and potentially avoid being ordered to return to your home country.
To help you get a better understanding of your options for remaining in Canada, we have outlined the appeal process for refugee decisions along with other important information you will need to know.
Who Has the Right to File an Appeal?
In the event that your refugee claim has been denied by the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (IRBC), you can appeal to the Refugee Appeal Division (RAD) under specific conditions to potentially have the decision overturned.
However, if any of the following apply to your case, you will not be able to file an appeal:
- You have been designated a foreign national
- Your refugee claim was either withdrawn or abandoned
- In the RPD’s decision, it stated that your claim had no credible basis or was “manifestly unfounded”
- Your refugee claim was made at a land border with the United States and was referred to the RPD as an exception to the Safe Third Country Agreement
- The Minister made an application to end your refugee protection, and the RPD decision either allowed or rejected that application
- The Minister made an application to cancel the decision to allow your refugee protection claim, and the RPD either allowed or rejected the application
- Your refugee claim was rejected under Article 1F(b) of the Refugee Convention because of an order of surrender under the Extradition Act
If you do not have the right to appeal to the Refugee Appeal Division, do not give up hope just yet, as you may still be able to challenge the decision by applying to the Federal Court for a judicial review. It’s highly recommended that you seek the assistance of an immigration and refugee lawyer if you plan to ask for a judicial review.
But if you do not fall under one of these exemptions, you can request that the RAD review its decision to reject your claim by filing an appeal.
As per the Federal Court of Appeal’s decision in Huruglica, the RAD’s role “is to intervene when the RPD is wrong in law, in fact, or in fact and law” through application of the correctness standard. The application of the correctness standard indicates no deference to either the outcome or reasoning of the RPD. As per the Supreme Court of Canada’s instructions, “[w]hen undertaking a correctness review, the court may undertake its own reasoning process to arrive at the result it judges correct.” [1]
In Canada (MCI) v Huruglica, the Federal Court of Appeal also stated that while the RPD is in many cases better positioned to make credibility assessments, “the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.”
When credibility findings are in dispute upon appeal, such as in the present case, the RAD must either endorse or reject these findings. The Federal Court of Appeal outlined two scenarios where the RAD could find that the RPD erred in its credibility finding, while acknowledging that it is far from an exhaustive list:
- Where testimony was erroneously not found credible due to common sense.
- Where testimony was erroneously not found credible due to discrepancies that either did not exist or could not justify such a conclusion.
How to Start an Appeal
Once you have determined whether you are able to file an appeal, you can begin the actual process.
Your first step is to file a notice of appeal to the RAD no later than 15 days after you received the written reasons for why the RPD rejected your refugee claim. However, you should first consult with a refugee lawyer to discuss the merits of the appeal and determine if there is any “new” evidence that you should put forward.
You will need to make three copies of your notice of appeal to provide to the RAD Registry located in the regional office that sent you your RPD decision.
You can either mail, fax, or deliver your notice of appeal in person to the IRB regional office that sent the original refugee decision.
What is considered “New Evidence” before the RAD?
Section 110(4) of the Immigration and Refugee Protection Act states as follows:
Evidence that may be presented
110 (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection [2].
The Federal Court has determined that the test set out by the Court of Appeal in Raza v Canada (Citizenship and Immigration), applies in determining whether the RAD should admit new evidence. In Raza, the Court of Appeal sets out the following 5 factors [3]:
[13] As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows:
1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered
2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered.
3. Newness: Is the evidence new in the sense that it is capable of:
- (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or
- (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or
- (c) contradicting a finding of fact by the RPD (including a credibility finding)?
If not, the evidence need not be considered.
4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered.
5. Express statutory conditions:
- (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered.
- (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material).
How Much Time Do I Have to File an Appeal?
If filing an appeal, you must act fairly quickly as there are tight deadlines for filing.
Here are the various timelines throughout the appeal process:
Filing a Notice of Appeal
When filing your notice of appeal, you have up to 15 days after the day that your received the written reasons for the RPD’s decision to reject your refugee claim.
Appellant’s Record
You will have 30 days after you received the written reasons for the RPD decision to file your appellant's record. You must include a statement that says whether you are submitting new evidence, include all of your new evidence in this record and explain how the test for newness set out above is met with respect to the evidence.
You must also indicate whether you are asking for an oral hearing when filing your appellant’s record.
Receiving a Decision on Your Appeal
If there is no hearing, the RAD is supposed to make a decision to either allow or reject your appeal no more than 90 days after the appeal was perfected. However, due to the current RAD backlog, it can take approximately 1-2 years to receive a decision from the RAD.
If a hearing does take place, the RAD will make a decision as soon as possible after the hearing.
The Minister may decide to intervene and submit documentary evidence at any time before the RAD makes a final decision on the appeal.
If the Minister decides to intervene and to provide submissions or evidence to you, the RAD will wait 15 days for you to reply to the Minister and the RAD.
Once you have replied to the Minister and the RAD, or if 15 days have passed and you have not replied, the RAD will make a decision on your appeal.
What If I Miss the Deadline?
If you miss the time limit to file the notice of appeal or the appellant's record, know that you still have options.
If you have missed one of these deadlines and you still want to proceed with your appeal, you must file an application for an extension of time.
The application must follow rule 6 and rule 37 of the RAD Rules.
You will also have to include three copies of your notice of appeal and two copies of your appellant's record with your application. You must also provide an affidavit or solemn declaration that explains why you missed the deadlines.
Will There Be a Hearing?
Since the refugee appeal process is paper-based, typically, no hearing will take place.
However, oral hearings can be permitted in some cases if the RAD believes that one is needed on specific grounds before making a decision.
Section 110(6) of the Immigration Refugee Protection Act sets out the requirements that must be met before a hearing can be granted by the RAD:
110 (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3)
- (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal
- (b) that is central to the decision with respect to the refugee protection claim; and
- (c) that, if accepted, would justify allowing or rejecting the refugee protection claim.
The Importance of Hiring an Immigration Lawyer
Refugee cases, especially during the appeal process, are incredibly serious and complex matters, so it’s important that you are not working alone during this time.
An immigration lawyer will be by your side throughout the process to advocate for you and your case while ensuring you meet the proper deadlines and exploring all possible options.
Most often, you will not get a second chance at an appeal, so working with an immigration lawyer experienced in refugee claims is highly recommended. Doing so will increase your chances of a successful appeal and take you one step closer towards starting your new life in Canada.
An immigration lawyer can also explain your options if your appeal is rejected, including whether there is an arguable case to present to the Federal Court in a Judicial Review Leave Application.
[1] Canada (Minister of Citizenship and Immigration) v Huruglica, 2016 FCA 93 at paras 67, 76-78, 96-98 [Huruglica]; Law Society of New Brunswick v Ryan, 2003 SCC 20 at para 50.
[2] Immigration and Refugee Protection Act, SC 2001, c 27, s 110(4) [IRPA].
[3] Canada (Minister of Citizenship and Immigration) v Huruglica, 2016 FCA 93 at paras 67, 76-78, 96-98 [Huruglica]; Law Society of New Brunswick v Ryan, 2003 SCC 20 at para 50.
[4] Immigration and Refugee Protection Act, SC 2001, c 27, s 110(4) [IRPA].
Guide to the Immigration Appeal Process
What You Need to Know About Appealing an Immigration Decision in Canada
When an immigration officer’s decision is not in your favour, it can be an incredibly stressful and at times, difficult to understand the officer’s reasons. Sometimes, you only receive a decision letter and have to request the reasons through an access to information and privacy request. However, it’s important to know that many immigration decisions are not final and can be appealed.
To help you better navigate Canada’s immigration system during this time, we’ve broken down the basics of the immigration appeal process, including what types of decisions can be appealed, who can appeal, what to expect, how to prepare, and how long the process takes.
What Kind of Decisions Can Be Appealed? And Who Can/Cannot Appeal?
Typically, only permanent residents of Canada are able to appeal an immigration decision. However, in some cases, foreign nationals may have a right to appeal a removal order.
The following are immigration decisions that you can appeal.
Sponsorship Appeal
Permanent residents or Canadian citizens who have made an application to sponsor a family member to immigrate to Canada that was rejected by Immigration, Refugees and Citizenship Canada (IRCC) may be able to appeal to the Immigration Appeal Division (IAD).
The most common reasons IRCC rejects sponsorship applications are:
- If you are attempting to sponsor your spouse and they believe that the relationship is not genuine and that your spouse entered into the marriage for the sole purpose of immigrating to Canada
- You do not meet the minimum income requirements for sponsoring a family member
- The family members you are trying to sponsor are unable to financially support themselves in Canada and will need to rely on social assistance
- The sponsored family member has a medical condition that immigration believes will cause an excessive demand on Canadian society
It is important to note that you will be unable to appeal an IRCC sponsorship decision if your family member or spouse has been found to be inadmissible due to:
- A serious criminal offence punishable in Canada by a prison term of 6 months or longer
- A conviction of a crime outside of Canada that carries a maximum sentence of 10 years or more in Canada
- Involvement in organized crime
- Violations of human or international rights
- Misrepresentation (unless the person is your spouse, common-law partner, or child)
If you are able to file a sponsorship appeal, you must do so within 30 days of receiving a copy of the decision from the IRCC.
An appeal can be filed by printing and filling out an appeal form that can be found by visiting the IAD website. A copy of this form will also be sent to you along with your refusal letter. Once completed, the form can be mailed or delivered to an IAD office person.
Removal Order Appeal
Permanent residents with removal orders issued against them can also appeal this decision to the IAD in most cases.
However, you may not appeal if you have been found to be inadmissible to Canada due to:
- A serious criminal offence punishable in Canada by a prison sentence of 6 months or more
- Conviction of a crime outside of Canada that carries a maximum sentence of 10 years or more In Canada
- Involvement in organized crime
- Violations of human or international rights
If you plan to appeal a removal order, this must be done within 30 days of the order being issued. After your appeal is filed, a hearing before an IAD member will take place in to determine if the removal order is valid.
Residency Obligation Appeal
Permanent residents that have been unable to meet their residency obligations can lose their permanent resident status.
Fortunately, you are able to appeal this decision to the IAD and explain why you should keep your permanent resident status considering your humanitarian and compassionate factors.
This is known as a residency obligation appeal.
However, those who have received a removal order while in Canada because they failed to meet their residency obligations will need to file a removal order appeal.
What Should I Expect from An Appeal Hearing?
During an IAD appeal hearing, you will be given the opportunity to present your version of events and evidence that supports your case.
If you have hired an immigration lawyer, your lawyer will ask questions relevant to your appeal. Your lawyer may also make humanitarian and compassionate submissions in support of your case.
The Minister’s Counsel will also question you on what you have presented if he/she appears in person.
The IAD rules allow you to bring witnesses who you feel could help support your case. This could include family, friends, co-workers, or business partners.
A highly important note about appeal hearings is if you fail to show up to your hearing, the IAD can declare your appeal “abandoned.” This means your appeal is essentially cancelled.
How to Prepare for An Appeal
Well before your hearing is set to take place, start to gather evidence that can help strengthen your case. This can include:
- Documents
- Letters
- Photos
- Information about the relationship between you and your family members
- Information about your children
- Information about yourself such as income and employment information
For any documents you plan to present during your hearing, you must make two copies of each, one of which has to be sent to the IAD, and another to the Minister’s Counsel.
These documents must be received by the IAD at least 20 days before your hearing, or else you may not be able to use them during your appeal hearing.
Also keep in mind that if your documents are not in English or French, they must be translated into one of these two languages. The translated copies must be sent along with one copy of the original documents to both the IAD and the Minister’s Counsel. The person who translated these documents must also provide a written statement that the translation is accurate.
How Long Does an Appeal Take?
Due to administrative delays and backlogs, it can take several months or possibly more than a year for your case to be heard in front of the IAD.
During this time, you should be preparing for your hearing by gathering evidence and preparing your legal argument that you plan to present.
What Happens If an Appeal Is Dismissed?
Should your appeal be dismissed, unfortunately, you will lose permanent resident status, and may receive a removal order.
However, you are not out of options just yet.
If your appeal is dismissed, either yourself, or Minister's Counsel, can apply to the Federal Court of Canada for judicial review of any IAD decision. The Federal Court of Canada will either dismiss your application or return your case to the IAD to be re-determined.
Hiring an Immigration Lawyer
Canada’s immigration system can be highly complex and navigating the appeals process on your own can be challenging and stressful without the help of an experienced and skilled immigration lawyer.
With an immigration lawyer by your side, the stress of trying to fill out all the correct paperwork and meeting deadlines is out of your hands, improving your chances of being granted an appeal.
So, if you find yourself in the position where an immigration appeal is justified, consider hiring an immigration lawyer to help guide you through this difficult time.
Study Finds Large Number of Canadians Continue to Support Immigration Post Election
Concerns of Immigration Becoming Divisive Election Issue Unfounded According to Report
Attempts to make immigration and refugees a key issue during Canada’s most recent election appear to have proven unsuccessful as a recent survey has found that Canadians as a whole continue to support immigration.
According to the Globe and Mail, the survey conducted by Environics Institute showed that 63 per cent of respondents disagreed with the notion that there is too much immigration in Canada.
The poll surveyed over 2,000 Canadians through telephone interviews during the two weeks leading up to the October 21 election.
Environics had also asked respondents to identify the most important issue affecting Canada at the moment, and only 2 per cent stated that the felt immigration was the most significant matter.
The most important issue identified by respondents was environment and climate change at 24 per cent, while the economy came in second at 22 per cent.
Keith Neuman, senior associate at the Environics Institute, told the Globe and Mail that these results come as a bit of a surprise considering the controversy over the recent surge in asylum seekers entering Canada through the Canada-U.S. land border, the People’s Party vocal disdain of multiculturalism and immigration during the election, along with an increasing lack of empathy towards refugees.
“Our trend data show that general public sentiments about immigrants and refugees have remained remarkably stable, if not improving, over the last couple of years despite events happening in Canada and outside that lead many people to think that sentiments are declining,” said Neman.
Another interesting – yet unsurprising – takeaway from the survey was that respondents’ opinions on immigration varied based on which political party they support.
NDP supporters were found to be the most supportive of immigration, with 79 per cent indicating that they do not agree that current immigration levels in Canada are too high.
Liberal voters’ support for immigration was measured at 74 per cent, followed by the Green Party at 69 per cent, and the Bloc Québécois at 64 per cent.
On the other hand, the majority of Conservative Party supporters – 51 percent – stated that they believed that current immigration levels in Canada are too high.
And when asked if immigration has a positive impact on the economy, only 68% of Conservatives supported this statement.
Meanwhile, 90 per cent of Liberals also agreed with this statement, followed by 89 per cent of New Democrats, 82 per cent of Greens, and 77 per cent of Bloc Québécois supporters.