There are a few options that may be available to you once your refugee claim is refused.
Trying to set aside the negative decision
The first option you will usually want to explore is trying to have the decision refusing your claim set aside.
In most – but not all cases – you may be able to appeal the negative decision to the Refugee Appeal Division (RAD) of the Immigration and Refugee Board. A Member of the RAD can review your appeal and decide whether to grant your claim, order a new refugee hearing for you, or refuse your appeal. Their decision will usually be based on the evidence that is already in your file, but in some limited circumstances they can consider new evidence. Be careful though, as you only have 15 days from the date you receive the decision refusing your refugee claim to file your appeal, and 30 days from the date you receive the decision negative refugee decision to file your legal arguments and any new evidence in support. You should strongly consider obtaining legal advice about whether you have a right of appeal to the RAD and even retaining legal representation to assist you with your appeal.
There are several categories of people though who are not eligible to appeal their decision to the RAD. Instead, they can file an Application for Leave and for Judicial Review to the Federal Court. The Federal Court cannot usually consider any new evidence in support of your claim, and can only grant your application if they decide that the decision refusing your claim was unreasonable or was decided in a way that was unfair. If the Court grants your application, it can cancel the decision refusing your claim and order a new hearing for you, but cannot actually grant your refugee claim. Once again, you should strongly consider obtaining legal advice and representation with any application to the Federal Court, as there are tight timelines for filing your application, and doing so does not automatically prevent immigration authorities from deporting you while the process application is ongoing.
If your appeal to the RAD is refused, you can file an Application for Leave and for Judicial Review of that decision to the Federal Court. If your application to the Federal Court is refused, this decision will usually be final, as it is only in very rare circumstances that you can appeal this decision to the Federal Court of Appeal.
In some very limited circumstances, you may also be able to apply directly to the Refugee Protection Division to have your refugee claim reopened.
There are some other options that may be available to you instead of trying to set aside the decision refusing your refugee claim, or if your efforts to set aside the decision have been unsuccessful.
You may be able to file an application for permanent residence on humanitarian and compassionate grounds. Beware though that there are limits on who can file such an application within a year of their refugee claim being refused, and filing an H&C application does not automatically prevent you from being deported from Canada. Furthermore, the strength of your application will depend on a series of factors, including how long you have lived in Canada, what you have done during your time here, any hardship you would face if you are removed from Canada, and the best interests of any child directly affected by the application.
You may become eligible for a Pre-Removal Risk Assessment (PRRA) if you have been in Canada for a sufficient period of time after your claim to refugee protection has been refused and Canadian immigration authorities are ready to deport you. The length of time you will need to wait to become eligible for a PRRA depends on several factors, including the reasons your refugee claim was refused, and your country of origin. In most cases, Canadian immigration authorities will invite you to file a PRRA if you are eligible to do so once they are preparing to deport you.
A sponsorship application may be an option if you have a common-law partner or spouse who is a Canadian permanent resident or citizen.
There may be other options available to you too depending on your personal circumstances.
Do I need a lawyer?
Whether to hire a lawyer to represent you is always a personal choice, but a refused refugee claim is a situation in which proper legal representation and advice can be particularly important. As you may have appreciated from reading this, determining which options are available to you is complicated and requires an in-depth knowledge of immigration law and procedures. The timelines for filing an appeal to the RAD or an application to the Federal Court are tight, and if you do so, you will need to present legal arguments as to why the decision refusing your refugee claim should be set aside. You may also be at risk of deportation either once your refugee claim or appeal to the RAD is refused. Although in most cases you can retain an immigration consultant to represent you if you prefer, only a lawyer who is licenced by a law society in Canada can represent you in relation to an application to the Federal Court.
If your refugee claim has been refused, and you want advice about what options are available and best for you, we encourage you to contact us at firstname.lastname@example.org or by phone at 416-323-0339.
This post is for informational purposes only and is neither legal advice nor a substitute for obtaining legal advice. Immigration policies and programs change frequently, and so the information in this post may have changed since it was prepared on December 29, 2017.