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CHAPTER 4

4. MAKING A CLAIM FOR REFUGEE PROTECTION

4.1 Claims Inside and Outside Canada

DescriptionReference
— a claim for refugee protection may be made in Canada or outside CanadaIRPA, s. 99(1)

4.1.1 Claims Outside Canada

DescriptionReference
— a claim for refugee protection made outside Canada
• is made by making an application for a visa as a Convention refugee or a person in similar circumstances, and
• is governed by Part 1 of the Act ("Immigration to Canada")		IRPA, s. 99(2)
Note: The IRB does not determine claims made outside Canada.  

4.1.2 Claims Inside Canada

DescriptionReference
— a claim for refugee protection made inside Canada
• must be made to an officer,
• may not be made by a person who is subject to a removal order, and
• is governed by Part 2 of IRPA ("Refugee Protection")		IRPA, s. 99(3)
— an application to become a permanent resident made by a protected person is governed by Part 1 of IRPA: ("Immigration to Canada")IRPA, s. 99(4)
Note: A person whose application for protection has been finally determined by the IRB to be a Convention refugee or to be a person in need of protection becomes a permanent resident if the officer is satisfied that they have made their application in accordance with the regulations, and are not inadmissible on certain grounds, etc.IRPA, s. 21(2)
IRP Regs. 175
to 178

4.2 Eligibility to be Referred to the RPD

4.2.1 Officer Determines Eligibility / Deemed Referral

DescriptionReference
— an officer shall, within three working days after receipt of a claim referred to in s. 99(3), determine whether the claim is eligible to be referred to the RPDIRPA, s. 100(1)
— the Regulations explain how to calculate "three working days":
• a working day does not include Saturdays and holidays
• a day that is not a working day is not included in the calculation of the three-day period; and
• the three-day period begins from the day on which the claim is received		IRP Reg. 159
Note: the Interpretation Act, s. 35(1), provides that in every enactment, "holiday" means any of the following days, namely, Sunday, New Year's Day, Good Friday, Easter Monday, Christmas Day, Victoria Day, Canada Day, Labour Day, Remembrance Day, Thanksgiving Day (or any of the other days described in that section, such as a day that is proclaimed in the province as a public holiday).  
— if the claim is eligible, the officer shall refer the claim to the RPD in accordance with the rules of the BoardIRPA, s. 100(1)
RPD Rule 3
Schedule 2
— if the claim is not referred within the three-day period referred to in s. 100(1), it is deemed to be referred, unless there is a suspension or it is determined to be ineligibleIRPA, s. 100(3)

4.2.2 Duty of Claimants

DescriptionReference
— the burden of proving that a claim is eligible to be referred to the RPD rests on the claimantIRPA, s. 100(4)
— claimants must answer truthfully all questions put to them IRPA, s. 100(4)
— if the claim is referred to the RPD, the claimant must produce all documents and information as required by the rules of the BoardIRPA, s. 100(4)
RPD Rules 5, 6

4.2.3 Suspension of Eligibility Determination

DescriptionReference
— the officer shall suspend consideration of the eligibility of the person's claim if
• an admissibility hearing is pending regarding grounds of security, violating human or international rights, serious criminality or organized criminality; or
• the officer considers it necessary to wait for a decision of a court with respect to an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years 		IRPA, s. 100(2)

4.2.4 Ineligibility Criteria

DescriptionReference
— a claim is ineligible to be referred to the RPD if:
• refugee protection has been conferred under this Act
• a claim for refugee protection has been rejected by the Board
• a prior claim was determined to be ineligible, withdrawn, or abandoned
• the claimant has been recognized as a Convention refugee by another country and can be sent or returned to that country
• the claimant came directly or indirectly to Canada from a country designated by the regulations as a "safe third country", other than a country of their nationality or former habitual residence
• the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, as described 		IRPA, ss. 101(1)( a) to ( f)
NOTE: The ineligibility criteria are described in more detail in the subdivisions of this Legislative Guide that follow. 

4.2.4.1 Prior Acceptance under this Act

DescriptionReference
— a claim is ineligible to be referred to the RPD if refugee protection has been conferred under this ActIRPA, s. 101(1)( a)
• "refugee protection" is conferred on a person when the Board determines the person to be a Convention refugee or a person in need of protection, or in the other circumstances described in s. 95(1)IRPA, s. 95(1)
• "refugee protection" also is conferred under IRPA on a person who, before the coming into force of IRPA, was (i) determined in Canada to be a Convention refugee, (ii) was granted landing under the Regulations as a Convention refugee, or (iii) was granted landing under the Regulations as a member of the Post-determination Refugee Claimants in Canada ClassIRP Reg. 338
Note:A person who has refugee protection is not eligible to have a determination by the RPD, because the person already has ongoing protected status. The matter would come before the RPD, however, if the Minister brought an Application to Cease or to Vacate Refugee Protection.  

4.2.4.2 Prior Rejection by the Board

DescriptionReference
— a claim is ineligible to be referred to the RPD if a claim for refugee protection has been rejected by the BoardIRPA, s. 101(1)( b)
• a determination made in Canada before the coming into force of IRPA that a person is not a Convention refugee is deemed to be a claim for refugee protection rejected by the Board IRP Reg. 339
Note: There are no "repeat claims" at the RPD, regardless of whether the earlier claim was dealt with at the RPD or at the CRDD; the repeat claim may be determined by the Minister under the PRRA. IRPA, s. 112

4.2.4.3 Prior Ineligibility / Withdrawal / Abandonment

DescriptionReference
— a claim is ineligible to be referred to the RPD if a prior claim was determined
– to be ineligible to be referred to the RPD,
– to have been withdrawn, or
– to have been abandoned		IRPA, s. 101(1)( c)
• a prior determination of ineligibility under the former Immigration Act is deemed to be a determination of ineligibility to be referred to the RPDIRP Reg. 340
• a withdrawal or an abandonment under the former Immigration Act is deemed to be determination of ineligibility to be referred to the RPDIRP Reg. 341
Note: There are no "repeat claims" at the RPD, regardless of whether the earlier claim was dealt with at the RPD or at the CRDD; repeat claims may be determined by the Minister under the PRRA. IRPA, s. 112

4.2.4.4 Prior Acceptance in Another Country

DescriptionReference
— a claim is ineligible to be referred to the RPD if the claimant has been recognized as a Convention refugee by another country and can be sent or returned to that countryIRPA, s. 101(1)( d)
Note: This provision applies only to "Convention refugee" status, not to any other form of protection or status.  

4.2.4.5 "Safe Third Country"

DescriptionReference
— a claim is ineligible to be referred to the RPD if the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or former habitual residenceIRPA, s. 101(1)( e)
• the regulations may govern matters relating to the application of ss. 100 and 101, may, for the purposes of this Act, define the terms used in those sections and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions
(a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture;
(b) making a list of those countries and amending it as necessary; and
(c) respecting the circumstances and criteria for the application of s. 101(1)( e)		IRPA, s. 102(1)
Note: A claimant cannot be found ineligible based on the "safe third country" provision unless a regulation has been made to designate such a country. No designations as a "safe third country" have been included in the IRP Regulations.  

4.2.4.6 Security Risks / Human Rights Violators/ Criminals

DescriptionReference
— a claim is ineligible to be referred to the RPD if the claimant has been determined to be inadmissible on grounds of
• security ( IRPA, s. 34)
• violating human or international rights, ( IRPA, s. 3) except for persons who are inadmissible solely on the grounds of s. 3(1)( c) (international sanctions)
• serious criminality ( IRPA, s. 3, but see below), or
• organized criminality, ( IRPA, s. 3)		IRPA, s. 11(1)( f)
— a claim is ineligible by reason of serious criminality if
– in the case of a conviction in Canada, the conviction is for an offence punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least 2 years was imposed; or
– in the case of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of at least 10 years		IRPA, s. 11(2)

4.2.5 Authority for Regulations on Eligibility

DescriptionReference
— the regulations may govern eligibility determinations under ss. 100 and 101, may define terms and may include authority to make a list of designated countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture, etc.IRPA, s. 12
Note:IRP Reg. 159 deals with calculation of the three-day period in ss. 101(1) and (3); other regulations define the terms in the eligibility provisions to include activities under the former Immigration Act ( IRP Reg. 338 and following). No regulations have been made on "safe third country" at this point.  

4.3 Referral to the RPD - Duty of Officer

DescriptionReference
— an officer must provide a PIF to the claimant:
• as soon as a claim for refugee protection is referred to the RPD, or
• as soon as possible after it is deemed to be referred		RPD Rule 3(1)
— after providing the form, the officer must without delay provide to the RPD
• a written statement of how and when the PIF was provided to the claimant;		RPD Rule 3(2)( a)
• the information required by Schedule 2 of the RPD Rules; andRPD Rule 3(2)( b), Schedule 2
• a copy of any identity or travel documents of the claimant and of any other relevant documents that are in the possession of the officer RPD Rule 3(2)( c)
— on the request in writing of the RPD, the Minister must without delay provide to the RPD the original of any document mentioned in RPD Rule 3(2)( c) that is in the Minister's possessionRPD Rule 36(2)

4.4 Suspension or Termination of Proceedings at the RPD

4.4.1 Notice to Suspend Consideration of Claim

DescriptionReference
— proceedings of the RPD and of the RAD are suspended on notice by an officer that
• an ID admissibility hearing is pending regarding grounds of security, violating human or international rights, serious criminality or organized criminality; or
• the officer considers it necessary to wait for a decision of a court with respect to an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years 		IRPA, s. 13(1)
— on notice by an officer that the suspended claim was determined to be eligible, proceedings of the RPD and of the RAD continueIRPA, s. 13(2)

4.4.2 Notice of Ineligible Claim

DescriptionReference
— an officer may, with respect to a claim that is before the RPD, give notice that an officer has determined that
• the claim is ineligible under ss. 101(1)( a) to (f)		IRPA, s. ss. 104(1)( a),( b)
• the claim was referred as a result of misrepresentation and was not otherwise eligible to be referred to the RPDIRPA, s. 14(1)( c)
— an officer may, with respect to a claim that is before or has been determined by the RPD or the RAD, give notice that an officer has determined that
• the claim is not the first claim that was received by an officer in respect of the claimant 		IRPA, s. 14(1)( d)
— a notice of ineligibility, if based on ineligibility under IRPA, ss. 101(1)(a) to (f), or on misrepresentation, terminates pending proceedings in the RPD respecting the claim IRPA, s. 14(2)( a)
— a notice of ineligibility, if based on the fact the claim is not the first claim that was received by an officer in respect of the claimant, nullifies any decision of the RPD or RAD respecting a claim other than the first claim IRPA, s. 14(2)( b)

4.4.3 Extradition Procedure

DescriptionReference
— suspension for proceedings under the Extradition Act: the RPD and the RAD shall not commence, or shall suspend, consideration of any matter concerning a person
• against whom an authority to proceed has been issued under section 15 of the Extradition Act,
• with respect to an offence under Canadian law that is punishable under an Act of Parliament by a maximum term of imprisonment of at least 10 years,
• until a final decision under the Extradition Act with respect to the discharge or surrender of the person has been made		IRPA, s. 15(1)
— continuation if discharge under Extradition Act: if the person is finally discharged under the Extradition Act, the proceedings of the RPD or the RAD may be commenced or continued as though there had not been any proceedings under the Extradition Act IRPA, s. 15(2)
— deemed exclusion by RPD: if the person is ordered surrendered by the Minister of Justice under the Extradition Act and the offence for which the person was committed by the judge under section 29 of the Extradition Act is punishable under an Act of Parliament by a maximum term of imprisonment of at least 10 years, the order of surrender is deemed to be a rejection of a claim for refugee protection based on paragraph (b) of Section F of Article 1 of the Refugee Convention IRPA, s. 15(3)
• the "deemed rejection" referred to in s. 15(3) may not be appealed, and is not subject to judicial review except to the extent that a judicial review of the Order of Surrender is provided for under the Extradition ActIRPA, s. 15(4)
— limitation on making a claim: if the person has not made a claim for refugee protection before the Order of Surrender referred to in s. 15(3), the person may not do so before the surrender is carried out IRPA, s. 15(5)
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Date Modified: 2009-02-09
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