Refugees

Refugee Claims

In Canada, individuals may apply for refugee protection from within the country if they meet the criteria set out in the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27 and Immigration and Refugee Protection Regulations (IRPR), SOR/2002-227. The eligibility framework for inland refugee claimants primarily revolves around the definitions found in sections 96 and 97 of IRPA, which categorize claimants as either Convention refugees or persons in need of protection.

1. Who is Eligible to Make an Inland Refugee Claim?

Under IRPA, section 99(2), any individual who is physically present in Canada may make a claim for refugee protection unless there are specific statutory bars. Those eligible to claim refugee protection must meet the criteria under sections 96 or 97 of the IRPA.

A. Convention Refugees (IRPA, Section 96)

A person may qualify as a Convention refugee if:

They are outside their country of nationality or, if stateless, their former habitual residence.

They have a well-founded fear of persecution for at least one of the following reasons:

Membership in a particular social group (e.g., LGBTQ+ individuals, survivors of domestic violence, gender-based violence survivors, human rights defenders, or ethnic minorities).

They cannot or do not want to avail themselves of the protection of their country of nationality.

1. Who is Eligible to Make an Inland Refugee Claim?

The Supreme Court of Canada (SCC), in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, established that a well-founded fear of persecution requires both a subjective and objective component:
The subjective fear means the claimant personally believes they are at risk.
The objective fear is evaluated based on the conditions in the home country and whether an objective observer would conclude that persecution exists.
This fear must be personalized, meaning it is not sufficient that there is general violence or unrest in the claimant’s country—there must be a specific and direct risk to them.

2. Protection by the Home Country

The claimant must demonstrate that they cannot obtain state protection. The SCC in Ward held that a refugee claimant must seek protection from their home government unless it is unavailable or inadequate.
If the state is the agent of persecution (e.g., a government actively oppressing an ethnic minority), the need to seek protection does not apply.

B. Persons in Need of Protection (IRPA, Section 97)

A person is eligible for refugee protection as a Person in Need of Protection if they are inside Canada and would face:

A risk to life

A risk of cruel and unusual treatment or punishment

A risk of torture If removed to their country of nationality or former habitual residence.

1. Risk to Life or Cruel and Unusual Treatment or Punishment

To qualify under IRPA, s. 97(1)(b), the risk must meet the following criteria:

The risk must be personalized (not generalized, affecting all members of society).
The risk must not result from lawful sanctions (e.g., imprisonment for a crime committed in accordance with fair laws).
The risk must be faced throughout the entire country, unless internal flight alternatives are unavailable.

2. Risk of Torture (IRPA, Section 97(1)(a))

The definition of torture follows Article 1 of the UN Convention Against Torture and involves:

Severe physical or mental pain inflicted for a specific purpose (e.g., to punish, extract a confession).

The involvement or acquiescence of state authorities.

Under Canada’s Gender Guidelines (IRB Guidelines 4), gender-based persecution (e.g., female genital mutilation, forced marriage, honor killings) qualifies for refugee protection.

This aligns with Canada’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Under Canada’s Gender Guidelines (IRB Guidelines 4), gender-based persecution (e.g., female genital mutilation, forced marriage, honor killings) qualifies for refugee protection.

Canadian refugee law recognizes LGBTQ+ persons as part of a particular social group under IRPA, s. 96.

Canadian refugee law recognizes that having to be discrete about one’s sexual identity for one’s safety is a form of persecution.

Individuals who have been targeted due to political expression or activism are eligible for refugee protection under s. 96 of IRPA.

Canada adheres to international standards protecting freedom of expression under the International Covenant on Civil and Political Rights (ICCPR).

Immigration, Refugees, and Citizenship Canada (IRCC) processes refugee claims. An inland claim should be initiated online unless you are unable to apply online owing to a disability or for another reason.

3. The Refugee Claim Process

Step 1 : Submission of a Basis of Claim (BOC) Form.

Step 2 : An eligibility interview with an IRCC officer.

Step 3 : Referral to the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB).

Step 4 : Determination of Claim through the Expedited Process (no hearing) or after a hearing.

Are individuals who cross irregularly into Canada eligible to make a refugee claim?

The Safe Third Country Agreement (STCA) between Canada and the United States stipulates that individuals entering Canada from the U.S. are generally required to seek asylum in the first safe country they arrive in. As of 2023, the STCA has been expanded to apply to individuals who make an asylum claim within 14 days of crossing the border irregularly. This means that if you enter Canada irregularly from the U.S. and seek asylum within 14 days, you may be ineligible to make a refugee claim in Canada under the STCA. If you have been in Canada for more than 14 days since entering from the U.S., the STCA does not apply, and you can make a refugee claim within Canada without being subject to the agreement’s restrictions.

If your claim is accepted, you can apply for permanent residence in Canada.

If your claim is rejected, you can either appeal your refusal to the Refugee Appeal Division (RAD) or apply for judicial review at the Federal Court, depending on a variety of factors.

Refugee Claim or Appeal Re-Opening Applications

In Canada, the RPD and the RAD have limited authority to reopen a refugee claim or an appeal. According to Rule 62(6) of the RPD Rules and Rule 49 of the RAD Rules, the RPD and the RAD may only reopen a claim/appeal if there was a failure to observe a principle of natural justice. The underlying merits of a claim are not a relevant consideration.

Refugee Appeal Division (RAD) Appeals

If your refugee claim was refused, you may have the right to appeal that decision to the RAD. A RAD appeal is your opportunity to challenge errors in the RPD’s reasoning or findings, present new evidence, and potentially overturn a negative decision—without having to leave Canada.

We provide strategic, time-sensitive representation for RAD appeals, building persuasive legal arguments supported by evidence, country conditions, and case law.

Judicial Review Applications

If your refugee claim has been refused by the RPD and you are not eligible to appeal to the RAD, your only legal remedy may be to seek a judicial review at the Federal Court. A judicial review challenges the fairness or reasonableness of the RPD’s decision—not the facts of your claim, but the legal process and reasoning behind the refusal.

Judicial Review Is Not a New Hearing

A judicial review is not a second chance to tell your story. The judge will not hear witnesses or reassess your fear of persecution. Instead, the Federal Court determines whether the immigration tribunal:

Pre-Removal Risk Assessment Application (PRRA)

A PRRA is a written application that allows certain foreign nationals facing removal from Canada to seek protection if returning to their home country would expose them to persecution, torture, risk to life, or cruel and unusual treatment or punishment. A PRRA is one of the final safeguards in Canada’s immigration system and can determine whether an individual will be removed—or allowed to stay.

In most cases, filing a PRRA application does stay removal, but only if the person is eligible to apply for PRRA and has actually submitted the application within the given time frame. The automatic stay does not apply if:

At Just Law Professional Corporation, we provide urgent, strategic legal representation for PRRA applicants, including complex cases involving new evidence.

New Evidence Requirement: One of the most significant factors in a successful PRRA application is the presentation of new evidence that demonstrates the claimant’s risk upon return. Only evidence that arose after the rejection of the previous refugee claim or was not reasonably available at that time is considered.

The requirement for new evidence in PRRA applications is explicitly outlined
Section 113(a) of IRPA: A PRRA officer shall not consider risks that were already assessed in a previous refugee claim unless there is new evidence that arose after the rejection of the claim or was not reasonably available at the time of the initial hearing.

Get In Touch

Contact Information

Location

Have Any Questions?

Drop Us a Line

Trust our firm to deliver the results you deserve…

Note: This form does not create a legal or contractual relationship between you and Just Law Professional Corporation. By submitting this form, you are not retaining Just Law Professional Corporation to represent you.

Join Our Legal Team

We’re seeking passionate professionals to grow with us and make a real impact in the legal field. Explore current opportunities and build your career with [Firm Name].