What does it mean to have a claim denied by the Immigration Refugee Board (IRB)?

A negative decision means the Immigration and Refugee Board (IRB) decided to not give you refugee status. There are many reasons why a claim can be denied.

Some reasons the IRB can deny a claim can include:

• They do not find your claim to be credible
• They cannot prove your identity,
• A well founded fear of persecution was not established
• You did not seek help from authorities (police) even though it was a possibility
• There was another place in your country where you could find safety

What are my options if my refugee claim is rejected by the IRB?

If your claim is denied, you may have several options. Not everyone will have the same options, and it will depend on the facts of your case. It is best to talk to a lawyer to figure out what you can do next.

Refugee Appeal Division

If your refugee claim is denied you may be able to appeal to the Refugee Appeal Division. They will look at the decision made by the IRB and decide if the board member made a mistake.

The Refugee Appeal Division (RAD) can do one of three things:

• Keep the decision of your refugee claim from the IRB the same
• Set aside the decision of the IRB and make a new one
• Refer the matter back to the IRB with directions that it considers appropriate

Timelines:

You need to file a notice of appeal (an official note saying you are going to make an appeal) 15 days from the date you receive your rejection.  If you do not file by then, you cannot make an appeal at the RAD.

You need to file the appellant’s record within 30 days from the date you receive your rejection. This means all the reasons and evidence about why you think that this decision should be reviewed again.

It is important to have legal assistance at this stage of the process. The stronger your case, the more chance you have of being successful.

Note: You will not have access to the Refugee Appeal Division if you fall under one of the following categories:

Designated Foreign National;

• Claimants who withdraw or abandoned their refugee claim;
• claimants found to have manifestly unfounded claims or claims that have no credible basis;
• claimants who made a PRRA application and had a decision on that application;
• claimants who fall under the exception to the Safe Third country agreement; or
• claims to appeal a decision to end (cease or vacate) a person’s protected person status.

Judicial Review:

If your refugee claim was rejected by the IRB, you might be able to have your lawyer apply to the Federal Court asking to review the IRB’s decision. This is called a ‘Judicial Review’.  You have 15 days to apply for this review from the day you receive notice that the claim was rejected.

If you have a removal order against you, it will automatically be placed on hold until the Court makes a decision. This means that you will not be forced to leave Canada until your case is complete.

Previously, claimants from DCO countries (Designated Country of Origin) would not have a removal order placed on hold. As of May 17, 2019, IRCC has removed all countries from the DCO list.

There are two stages to a judicial review:

• In the first stage, known as the ‘leave stage,’ you have to ask the court for permission or ‘leave’ to hear your case.  The court will not grant permission if it finds that the case is weak.
• If the court grants leave, there will be an oral hearing at the second stage, where your lawyer will make arguments on your behalf.

The Federal Court will review a decision and determine whether the IRB made an error on your case. If this is the case, they will send your case back to the IRB for a second hearing. This is like a second chance for them to hear your case.

If the court agrees with the original IRB decision to deny your claim, you will be under a removal order and you will have 30 days to leave Canada.

You must have a lawyer represent you if you want to go to Federal Court.

Pre-Removal Risk Assessment:

If you have a removal order against you – meaning you are forced to leave Canada because of a failed refugee claim – you have the option of applying for a Pre-Removal Risk Assessment (“PRRA”).

A Pre-Removal Risk Assessment (PRRA) is an assessment to see what ongoing or new risk you will face if you are returned to your country. This is based on new evidence that happened after the rejection of your claim.  This new evidence can include anything that you were not able to show at your hearing for a good reason. For example, someone has sent a threatening letter after your claim was denied.

Process:

To apply for a PRRA you must wait until a Canada Border Services Agency (CBSA) Officer gives you an application form. They will give you an application form when they are ready to remove you from Canada. You will have 15 days from the date the CBSA gives you this form to fill out and submit the application form.

An additional 15 days will be given from the date you submit this form to submit new evidence about the risk you face.

Outcomes:

If your PRRA application is accepted, you will be able to stay in Canada, get refugee protection and apply for permanent residence.

If it is rejected, you can apply for Judicial Review. This is where you can ask the Federal Court to review the decision of the Officer.

Limits:

If a person’s claim was rejected because they come from a safe third country, they are not eligible (cannot apply) for a PRRA. To date only the United States has been designated as a safe third country.

A failed refugee claimant cannot apply for a PRRA until after 12 months have passed since they received the negative decision. Sometimes there are exceptions when the conditions are home are particularly bad. For example, if your country is in civil war. It’s important to ask your lawyer whether you are eligible to apply for a PRRA.

If you have abandoned or withdrawn your claim, you cannot apply for a PRRA for 12 months.

Temporary Residence Permit

People who do not meet the requirements of the Immigration and Refugee Protection Act (IRPA) may be able to apply for a Temporary Residence Permit (TRP). A failed refugee claimant counts as someone who does not meet the requirements of IRPA.

A TRP allows for someone to become a temporary legal resident in Canada. A TRP may be valid from 1 day to 3 years. A TRP can be take away at any time. These applications are discretionary which means that an Officer will decide whether or not to grant you a TRP.

To be eligible for a TRP you need to show that your reasons for staying in Canada outweigh any safety or criminal concerns. You must apply to renew your TPR permit or leave the country before it expires.

In some cases, you may be able to apply for permanent residence after you have been living in Canada for more than three years. It is a good idea to find legal assistance to find out if this is the case.

Limits:

A failed refugee claimant cannot apply until after 12 months have passed since they received a negative decision, abandoned their case or withdrew their case.

Someone who has made no appeal to the Refugee Appeal Division cannot apply for a TRP.

Someone who has not applied for leave to the Federal Court cannot apply for a TRP.

Humanitarian and Compassionate Application (H & C):

If your refugee claims fails, you may still be able to remain in Canada by applying for permanent residence status on Humanitarian and Compassionate (H&C) grounds.

These are exceptional applications based on family and community ties, establishment, and best interest of the children, hardship, and more. 

It is important to know that even if you make an H & C application before your removal, the application itself does not delay or stop your removal. You will still have to comply with the removal order and leave Canada when you are told to.