Receiving a negative decision on an asylum claim does not necessarily mean that your path in Canada is over. Several legal remedies exist, but they are subject to strict deadlines that you cannot afford to miss. This article clearly explains the available options, the conditions for accessing each one, and the importance of acting quickly with the support of a lawyer specialized in immigration law.
Key Takeaways
- A rejected asylum claim in Canada is not the end of the road: the Refugee Appeal Division (RAD), judicial review, the PRRA, and humanitarian and compassionate (H&C) grounds are all avenues worth exploring.
- The deadline to file a notice of appeal with the RAD is 15 days following receipt of the written decision from the RPD. Acting immediately is imperative.
- Certain categories of claimants do not have access to the RAD; in such cases, judicial review before the Federal Court is the appropriate avenue.
- An application on humanitarian and compassionate grounds (H&C) may be filed in parallel with certain remedies.
- Being assisted by a specialized lawyer makes it easier to navigate the various stages of the process and to present a complete file that meets the applicable requirements.
Why Can an Asylum Claim Be Rejected?
The Immigration and Refugee Board of Canada (IRB) renders tens of thousands of decisions every year, some of which are unfavourable to claimants. Understanding the grounds for refusal is the first step toward assessing the possibilities for appeal and determining the appropriate next steps.
The Most Common Grounds for Refusal Before the RPD
The Refugee Protection Division (RPD) may reject an asylum claim for several distinct reasons, including:
- Lack of credibility of the claimant and their account: the board member does not find the claimant and their narrative to be sufficiently coherent or supported by reliable evidence.
- Available state protection: the RPD considers that the authorities of the country of origin are capable of protecting the claimant.
- Internal flight alternative: according to the RPD, there is a safe region within the country of origin where the claimant could settle.
- Citizenship or residency in a safe third country: the claimant can return to another country without risk.
Each ground for refusal opens distinct lines of argument on appeal. This is precisely why an analysis of the decision by an experienced lawyer is decisive before choosing which remedy to pursue.
Is the Decision "Manifestly Unfounded" or "No Credible Basis"?
In certain cases, the Refugee Protection Division (RPD) may accompany its refusal with a specific finding that has important consequences on the available remedies. When a claim is declared "manifestly unfounded" or is the subject of a "no credible basis" finding, the claimant generally does not have access to the Refugee Appeal Division (RAD). The principal remedy that then remains is an application for leave and judicial review before the Federal Court.
These two concepts do not, however, target the same situation. Under subsection 107(2) of the Immigration and Refugee Protection Act, the RPD must find that there is no credible basis for the claim when it considers that no credible or trustworthy evidence was presented and that it could not have rendered a favourable decision based on the evidence submitted.
The concept of a manifestly unfounded claim is different. Section 107.1 provides that the RPD must indicate in its decision that a claim is manifestly unfounded when it considers that the claim is clearly fraudulent.
The presence of either of these findings in a decision has a significant impact on the available remedies. It is therefore essential to have the decision analyzed promptly in order to identify the options that remain open and the applicable deadlines.
To properly understand your specific situation and the options available to you from the outset of the process, consult our dedicated page.
Appeal to the Refugee Appeal Division (RAD): The Primary Remedy
When available, the Refugee Appeal Division (RAD) is the primary remedy against a negative decision of the Refugee Protection Division (RPD). The RAD may examine errors of fact, errors of law, or mixed errors of fact and law that may have influenced the outcome of the decision.
Who May Appeal to the RAD?
In the majority of cases, an asylum claimant whose claim has been rejected by the Refugee Protection Division may bring the decision on appeal before the Refugee Appeal Division (RAD). However, the law provides for certain exceptions.
For example, access to the RAD is generally precluded when the RPD finds that the claim is manifestly unfounded or that it has no credible basis. Other exclusions provided for in the Immigration and Refugee Protection Act may also apply depending on the particular circumstances of the file.
It is therefore important to have the decision rendered promptly analyzed in order to determine which remedies remain available and which deadlines must be respected.
Deadlines for Bringing a Decision on Appeal
The applicable deadlines before the Refugee Appeal Division are particularly strict. In most cases, the claimant must file a notice of appeal within 15 days of receiving the written decision of the Refugee Protection Division and submit their appeal record within 45 days.
The appeal record must clearly set out the errors that were made in the impugned decision, whether they are errors of fact, errors of law, or mixed errors of fact and law.
In certain limited circumstances, it is also possible to submit new evidence. However, such documents must generally relate to facts that occurred after the decision or to information that was not reasonably available at the time of the hearing before the RPD.
Since a delay or error in preparing the record can compromise the available remedies, it is imperative to promptly obtain legal advice upon receipt of an unfavourable decision.
What Can the RAD Decide?
The RAD has three options:
- Confirm the RPD decision (the appeal is dismissed)
- Set aside the decision and substitute its own decision (protection granted)
- Return the file to the RPD for reconsideration
Judicial Review Before the Federal Court of Canada
Judicial review before the Federal Court is different from an appeal. The Court does not generally reassess the asylum claim in its entirety, nor does it substitute its own assessment of the facts for that of the decision-maker. Its role is rather to determine whether the contested decision is consistent with the law and reasonable in light of the evidence presented.
When Should Judicial Review Be Sought?
It is important to note that filing an application for judicial review can also have significant consequences on the enforcement of a removal order. In the context of a rejected asylum claim, filing an application for leave and judicial review with the Federal Court within the prescribed deadlines generally results in a statutory of removal until a decision is rendered on the application. The exact effects may, however, vary depending on the nature of the contested decision and the type of remedy exercised.
What Is the Difference from an Appeal?
Judicial review is not a fresh examination of the asylum claim. The Federal Court does not generally reassess all of the evidence in order to determine whether it would have reached the same decision. Its role is rather to verify whether the contested decision is reasonable and consistent with the requirements of the law. It may intervene in particular when the decision-maker made an error of law, drew conclusions inconsistent with the evidence, or failed to adequately justify the decision.
If the Federal Court finds that the decision is unreasonable or tainted by an error justifying its intervention, it will generally set aside the decision and return the file to the Immigration and Refugee Board for reconsideration by another decision-maker.
Pre-Removal Risk Assessment (PRRA)
The PRRA is a protection mechanism distinct from the asylum claim and the appeal remedies. It allows certain persons subject to a removal order to have the risks they might face upon their return to their country assessed.
What Is the PRRA and Who Can Benefit from It?
The Pre-Removal Risk Assessment (PRRA) is a procedure that allows for the evaluation of the risks to which a person might be exposed if they were removed to their country of origin or habitual residence. It is not an appeal of the decision rendered by the Immigration and Refugee Board, but rather a fresh assessment based on the situation that exists at the time the removal is contemplated.
Eligibility for the PRRA depends on the provisions of the Immigration and Refugee Protection Act as well as the particular situation of each individual. In several cases, this procedure is offered to persons subject to a removal order so that they can have the risks they allege they face upon return to their country assessed.
When a PRRA application is submitted in accordance with the applicable requirements, it generally has the effect of temporarily staying removal until a decision is rendered.
Limitations of the PRRA to Be Aware Of
The PRRA is a procedure distinct from the asylum claim and the remedies exercised before the Immigration and Refugee Board. Its objective is to evaluate the risks to which a person might be exposed at the time their removal is contemplated.
The rules applicable to evidence in a PRRA differ from those that apply before the Refugee Protection Division. The admissibility of certain items of evidence depends in particular on their nature, the time at which they became available, and the particular circumstances of the file.
Each PRRA application must therefore be assessed on the basis of its own evidence, the claimant's migratory history, and the evolution of the situation in the country of origin.
Application on Humanitarian and Compassionate Grounds (H&C)
An application on humanitarian and compassionate grounds constitutes an avenue distinct from the asylum claim. Rather than being founded on a fear of persecution, it is based on the totality of the personal circumstances of the applicant, including in particular their degree of establishment in Canada, the unusual, undeserved, or disproportionate hardship that would result from the refusal of the application, and, where they are concerned, the best interests of any children affected by the decision.
H&C and Rejected Asylum Claim: Can Both Be Filed Simultaneously?
As a general rule, an application on humanitarian and compassionate grounds cannot be examined while a protection claim is still pending before the Refugee Protection Division or the Refugee Appeal Division.
However, once this process has ended, it may be possible to submit an application on humanitarian and compassionate grounds, subject to the restrictions provided for by law.
It is important to note that the filing of an application on humanitarian and compassionate grounds does not have the effect of staying a removal order. In certain situations, additional steps may be necessary in order to remain in Canada during the processing of the application.
Each application is assessed according to its particular circumstances. The immigration officer must examine all the relevant factors presented in support of the application.
Among the considerations most frequently invoked are:
- the degree of establishment of the applicant in Canada;
- the unusual, undeserved, or disproportionate hardship that could result from a refusal of the application;
- the best interests of any child directly affected by the decision;
- the family ties of the applicant in Canada and abroad;
- any other relevant humanitarian circumstance arising from the personal situation of the applicant.
The analysis is based on all of the evidence submitted. It is generally not sufficient to invoke general difficulties in the country of origin; the officer must instead assess the concrete impact of the decision on the particular situation of the applicant and the members of the applicant's family.
Source: Canada.ca - Remedies after a rejected asylum claim ; CISR - irb-cisr.gc.ca.
Deadlines must be verified according to the individual circumstances of each file.
Why Retain an Immigration Lawyer After a Rejected Asylum Claim?
A rejection by the RPD triggers a series of very short legal deadlines, often simultaneous, and failure to meet them can permanently close off avenues for appeal. Given the complexity of the procedures and the applicable deadlines, the assistance of a lawyer specializing in immigration law can be decisive in preparing and presenting a remedy.
An experienced lawyer analyzes the RPD decision to identify errors of law or fact, selects the most appropriate remedy strategy for your profile, builds a solid appeal record, and represents you before the RAD or the Federal Court. Above all, they coordinate the various procedures (RAD appeal, H&C application, PRRA) to maximize your legal protection at every stage.
At Blain Avocats, we have been supporting asylum claimants in Montréal since 1987. Each file is handled with rigour, in compliance with the deadlines, and with constant attention to the individual paths of our clients. Discover the full range of our immigration law services to find out all the ways in which we can help you.
Your situation is urgent. Consult an immigration lawyer without delay. Every day counts.
Frequently Asked Questions About Rejected Asylum Claims in Canada
How long after the rejection can one appeal to the RAD?
You have 15 days from the date of receipt of the written reasons for the RPD's decision to file your notice of appeal. It is imperative to act immediately upon receipt of the decision.
Can one remain in Canada during a RAD appeal?
The consequences of an appeal to the Refugee Appeal Division on a removal order depend largely on the stage of the file and the remedy exercised. In many situations, a claimant who exercises a remedy within the prescribed deadlines may remain in Canada during its processing. However, each file must be analyzed according to its particular circumstances.
What happens if the appeal deadline is missed?
The deadlines applicable to asylum remedies are particularly strict. When a deadline has not been met, it may sometimes be possible to apply for an extension of time. The decision to grant or deny such a request, however, rests within the discretion of the tribunal or the relevant authority.
Can a PRRA application be submitted during a RAD appeal?
No. The PRRA is not usually available while a protection claim is still pending before the Immigration and Refugee Board, including when an appeal is pending before the Refugee Appeal Division. This procedure generally intervenes at a later stage of the file, when a person becomes eligible for a PRRA as part of the removal process. This procedure may also be available when an asylum claim has been found to be inadmissible. As the applicable rules are complex and contain certain exceptions, each situation must be assessed in light of its particular context.
