The Refugee Determination Process in Canada

AuthorJamie Chai Yun Liew; Donald Galloway
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 requi res 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 tribuna l making signif‌ic ant f‌indings of
credibility solely on the basi s of written submissions.”1 The Singh case
prompted the Canadian government to pa ss 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 Div ision (CRDD) of the Immigration and Refu-
gee Board (IRB) was established. Its sole function was to deter mine
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.
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 cl aimant was in need of protection on
other consolidated grounds identif‌ied in section 97 of the IR PA.4
As of 15 December 2012, the refugee determination process was
again modif‌ied dram atically. The Canadian government’s reform of
the refugee determination system has taken inspiration from a policy
paper published by the Fraser Inst itute5 which identif‌ied a number of
“dysfunctional” aspects of the system t hen 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 t he 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 [IR PA].
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 for ms
Fill out for ms
Attend CIC off‌ice
to submit forms
and receive
interview date and
attend interv iew
Assessment of
Ineligi ble Eligible
Designated Country
of Origin (DCO)
Designated Foreign
Natio nal (DF N)
The Refugee Determ ination Process in Ca nada 245
a) Making the Claim
As Figure 9.1 illustrates, the initial steps in the process of asses sing a
refugee claim differ slightly depending on whether the person making
the claim has appe ared 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 determ ine
whether the claimant is eligible to present a claim to the IRB’s Refugee
Protection Division .6 A claimant will b e 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 Canad a without making a claim for protec-
tion9 but may subsequently decide to do so. In such cases, a person
needs to obtain the requi site 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 elig ibility interview and
b) Interviewing and Obtaining Information from a Client
Refugee claimant s may approach their f‌irst meeting with a lawyer with
some trepidation. Many have never interacted with a l awyer in their
own country, let alone in Canada. Claim ants may have recently ar-
rived in Canada a nd may be dealing with culture shock or the stress
of f‌inding shelter and other amenities for their fa mily. Some may have
survived ar rest, detention, separation from family, loss of a job and
6 IR PA, 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-
9 IR PA, above not e 4, s 99(1)(3.1).
10 IR PA, ibid, ss 100 –101; Regulations, above not 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).

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