Eligibility Criteria for Convention Refugees
To qualify as a Convention refugee under Canadian immigration law, an individual must meet certain eligibility criteria that are grounded in the 1951 Refugee Convention and the 1967 Protocol. The primary determining factor is a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. In assessing this, both subjective elements (the person’s own fear) and objective elements (evidence or conditions supporting that fear) are considered.
More specifically, to be recognized as a Convention refugee in Canada, an individual must:
- Be outside their home country or the country they normally live in.
- Be unable or unwilling to return to that country because of a well-founded fear of persecution.
- Not be inadmissible to Canada on grounds such as serious criminality, security, or violation of human or international rights.
- Not have another country of nationality where they can go to live safely.
- Not be subject to a cessation or exclusion order, which can apply if circumstances related to their claim have fundamentally changed, or if they are deemed not to need protection for other reasons.
It’s important to note that the term ‘persecution’ involves serious human rights violations, including but not limited to threats to life, torture, and other cruel and unusual treatment or punishment. Discrimination may also rise to the level of persecution if the measures complained of are sufficiently severe.
People fleeing generalized violence, war, or civil unrest may not automatically qualify for Convention refugee status unless they can demonstrate the violence is specifically targeted at them or their group on one of the cited grounds.
An essential part of the eligibility determination is credibility. Applicants must provide clear and convincing evidence of their identity and basis of claim. The immigration authorities examine documents, testimonies, and other evidence presented by the claimant in support of their application.
Canada also recognizes persons in need of protection who may not fit the strict definition of a Convention refugee. These are individuals who would be subjected to a danger of torture, a risk to their life, or a risk of cruel and unusual treatment or punishment if they were returned to their home country.
Convention refugee status is not granted to those with access to protection from another country, those who have already found refuge and resettled in another country, or those who have had refugee status revoked due to substantial changes in their original home country.
The Refugee Status Determination Process
The process for determining Convention Refugee Status in Canada involves several stages, and it can be complex and time-consuming. This determination process is administered by the Immigration and Refugee Board of Canada (IRB), an independent tribunal that makes decisions on immigration and refugee matters.
The process begins when an individual makes a claim for refugee protection either at a port of entry into Canada, such as an airport or border crossing, or from within Canada at an Immigration, Refugees, and Citizenship Canada (IRCC) office. It consists of the following key steps:
- Eligibility Assessment: Initially, an officer from the Canada Border Services Agency (CBSA) or IRCC will determine if the individual is eligible to make a refugee claim. This includes reviewing whether there are any disqualifying factors, such as having a criminal record or being deemed a security risk.
- Referral to the IRB: If the claim is deemed eligible, it is then referred to the Refugee Protection Division (RPD) of the IRB.
- Basis of Claim (BOC) Form: The claimant must then fill out a Basis of Claim Form, which outlines the reasons for fearing persecution in their home country.
- Document Submission: Supplementary documents supporting the claim must be submitted, such as identity documents, any evidence of persecution, and country condition reports.
- Legal Representation: Claimants have the right to be represented by legal counsel, and it is often advisable to seek assistance from a lawyer or a registered immigration consultant.
- Pre-hearing Preparation: Before the hearing, the claimant and their legal representative prepare by gathering evidence and formulating arguments to present to the RPD.
- Refugee Hearing: The claimant then attends a hearing before the RPD, where they present their case, answer questions, and address any concerns the board may have regarding their claim.
- Decision: After considering all the evidence, the RPD will make a decision on whether the claimant meets the definition of a Convention refugee or is a person in need of protection.
- Appeal Process: If the claim is denied, there may be the option to appeal the decision to the Refugee Appeal Division (RAD) or seek judicial review by the Federal Court.
It is expected that claimants be truthful and provide as much relevant information as possible throughout the process. The RPD’s assessment is detailed and thorough, taking into account the credibility of the claimant along with the supporting evidence. Given the complexities of the process, claimants should familiarize themselves with all procedures and requirements or, ideally, seek professional guidance to navigate effectively through the determination process.
A successful claim will lead to Convention Refugee status, which paves the way for the claimant to apply for permanent residence in Canada. On the other hand, a failure to establish one’s case may result in the claim being denied, and the claimant may face removal from Canada.
Claimants should be aware that while the assessment is ongoing, they are eligible for certain benefits such as basic health care coverage under the Interim Federal Health Program and may be allowed to work or study in Canada.
Ultimately, the goal of the Refugee Status Determination Process is to ensure that those genuinely in need of protection find a safe haven in Canada, while also upholding the integrity and security of its immigration system.
Rights and Obligations of Convention Refugees
Individuals granted Convention Refugee status in Canada receive certain rights which are protected under Canadian law and international agreements. These rights are designed to provide refugees with a sense of safety and stability, allowing them to rebuild their lives in Canada. However, refugees also have obligations to respect and adhere to Canadian laws and regulations.
Among the rights convention refugees are entitled to are:
- The right to legal protection: This includes protection against being returned to their home country where they could face persecution (non-refoulement).
- The right to work and earn a livelihood: Convention Refugees have the right to seek employment and work in Canada without being restricted to a specific employer or location.
- Access to health care: They are eligible for health coverage under the Interim Federal Health Program until they qualify for provincial or territorial health insurance.
- Education rights: Refugee children have the right to access public education on the same basis as Canadian citizens or permanent residents.
- Access to social services: Convention Refugees are entitled to access certain social services, including those for settlement and integration into Canadian society.
- The right to apply for permanent residency: Once granted refugee status, individuals may apply to become permanent residents of Canada.
- Freedom of movement: Within the bounds of the law, Convention Refugees are free to live and move within Canada as they choose.
- The right to travel documents: Refugees can apply for a Refugee Travel Document, which can be used to travel outside Canada, with certain limitations.
In addition to these rights, Convention Refugees have the following obligations:
- Fulfilling the requirements of the immigration process including attending all immigration interviews and hearings.
- Respecting and adhering to Canadian laws and regulations at all levels—federal, provincial, and municipal.
- Filing taxes and declaring income in accordance with the Income Tax Act.
- Informing the Canadian government of any changes to their personal information such as address, family status, or employment.
- Making efforts to integrate into Canadian society, which includes learning one of the official languages (English or French), finding employment, and contributing to their new community both socially and economically.
While the acquisition of rights is a pivotal component of achieving Convention Refugee status, the importance of fulfilling obligations should not be underemphasized as they are essential for maintaining status and pursuing a successful path to citizenship.
Understanding and exercising these rights and meeting the obligations can help Convention Refugees establish a secure foundation for their new lives in Canada. Refugees are encouraged to seek support and advice from immigration consultants, settlement agencies, and legal advisors to ensure they make the most of the opportunities available to them and comply with the expectations of their host country.