The Refugee Determination Process in Canada

• Author: Jamie Chai Yun Liew; Donald Galloway
• Pages: 243-297

243

CHAPTER 9

THE REFUGEE

DETERMINATION

PROCESS IN CANADA

A. THE REFUGEE HEARING

1) Singh and the Right to an Oral Hearing

Canada has held oral refugee hearings since the seminal case of Singh

v Canada (Minister of Employment and Immigration) in 1985. In Singh,the

Supreme Court of Canada held that “where a serious issue of credibil-

ity is involved, fundamental justice requires that credibility be deter-

mined on the basis of an oral hearing” and that it would be diff‌icult

to “conceive of a situation in which compliance with fundamental

justice could be achieved by a tribunal making signif‌icant f‌indings of

credibility solely on the basis of written submissions.”1 The Singh case

prompted the Canadian government to pass legislation in 1985 and

1987, providing oral hearings, among other procedural safeguards, to

refugee claimants.2 Shortly after, in 1989, the independent Convention

Refugee Determination Division (CRDD) of the Immigration and Refu-

gee Board (IRB) was established. Its sole function was to determine

whether a claimant was a Convention refugee,3 a decision made after

an oral hearing.

1 [1985] 1 SCR 177 at para 59 [Singh].

2 Ninette Kelley & Michae l Trebilcock, The Making of the Mosaic: A Histor y of

Canadian Immigration Policy, 2d ed (Toronto: University of Toronto Press, 2010)

at 403.

3 See Chapter 10 on what it mean s to be a Convention refugee.

IMMIGRATION LAW244

2) Reforming the Process

In 2001, the newly renamed Refugee Protection Division (RPD) of the

IRB was given a broader mandate. Not only was it authorized to deter-

mine whether a claimant was a Convention refugee under section 96

of the Immigration and Refugee Protection Act (IRPA), it was also author-

ized to determine whether the claimant was in need of protection on

other consolidated grounds identif‌ied in section 97 of the IRPA.4

As of 15 December 2012, the refugee determination process was

again modif‌ied dramatically. The Canadian government’s reform of

the refugee determination system has taken inspiration from a policy

paper published by the Fraser Institute5 which identif‌ied a number of

“dysfunctional” aspects of the system then in operation and proposed

remedies, many of which have now been adopted.

The following section reviews how the process now operates, dis-

cusses the various categories under which refugee claimants may fall,

and describes the associated procedures they must follow.

3) An Overview of Canada’s Inland Refugee

Determination System

Figure 9.1 The Process of Refugee Determination

4 Immigration and Refugee Protec tion Act, SC 2001, c 27 [IRPA].

5 Stephen Gallagher, “Canad a’s Dysfunctional Refugee Dete rmination System:

Canadia n Asylum Policy from a Comparative Pers pective” (2003) 78 Public

Policy Sources (A Fraser Instit ute Occasional Paper).

Port of Entry (POE)Inland

Meet with

Canada Border

Services Agency

off‌icer and

f‌ill out forms

Fill out forms

Attend CIC off‌ice

to submit forms

and receive

interview date and

attend interview

Assessment of

Eligibility

Ineligible Eligible

Designated Country

of Origin (DCO)

Designated Foreign

National (DFN)

Other

The Refugee Determ ination Process in Ca nada245

a) Making the Claim

As Figure 9.1 illustrates, the initial steps in the process of assessing a

refugee claim differ slightly depending on whether the person making

the claim has appeared at a port of entry (airport, land border, or sea-

port), or has initiated the claim after h aving been admitted into Canada.

i) Port of Entry (POE)

Where a claimant has arrived at a port of entry, a Canada Border Ser-

vices Agency (CBSA) off‌icer will conduct an assessment to determine

whether the claimant is eligible to present a claim to the IRB’s Refugee

Protection Division.6 A claimant will be asked to provide information

for the assessment and, if found eligible, w ill be asked to submit further

forms within a set t ime limit.7 For example, those who wish to pursue a

claim are required to s ubmit a Basis of Claim (BOC) form within f‌ifteen

days of receiving the forms.8

ii) Inland

A person may have entered Canada without making a claim for protec-

tion9 but may subsequently decide to do so. In such cases, a person

needs to obtain the requisite forms from an off‌ice of Citizenship and

Immigration Canada and return the completed forms to the CIC of-

f‌ice, which will then schedule a date for the eligibility interview and

assessment.10

b) Interviewing and Obtaining Information from a Client

Refugee claimants may approach their f‌irst meeting with a lawyer with

some trepidation. Many have never interacted with a lawyer in their

own country, let alone in Canada. Claimants may have recently ar-

rived in Canada and may be dealing with culture shock or the stress

of f‌inding shelter and other amenities for their family. Some may have

survived arrest, detention, separation from family, loss of a job and

6 IRPA,above note 4, ss 9 9(1)(3) and 100.

7 The forms the per son will be asked to complete are IMM 0 008, Schedule A

(Background /Declaration), and Schedule 12 (Addition al Information – Refugee

Claimants inside Canada).

8 Immigration and Refugee Protection Regulations, SOR/2002-227, s 159.8(2) [Regu-

lations].

9 IRPA,abovenot e 4, s 99(1)(3.1).

10IRPA, ibid, ss 100 –101; Regulations, abovenot e 8, s 159.8(1); Refugee Pro tection

Division Rules ma de under the Immigration and Ref ugee Protection Act,SOR/2012-

256, s 7 [RPD Rules]: The forms the person w ill be required to f‌ill out inc lude

IMM 0008, Sc hedule A, Schedule 12 (Additional Infor mation – Refugee Claim-

ants inside C anada), and the Basis of Claim (B OC).