Frequently Asked Questions (FAQs)
Who can represent someone appearing before the IRB?
- If a fee is being charged for the service, counsel must be a registered immigration consultant or a lawyer. In either case, counsel must be a member in good standing in his or her professional organization. In Quebec, a notary who is a member in good standing of their professional association may also represent an individual before the IRB. If a fee is not being charged, counsel can be any person, including a trusted friend or community member.
- While people appearing before any division of the IRB have the right to be represented by counsel, it is the responsibility of those persons to retain (and pay for) counsel if they wish to be represented.
What happens if someone appearing before the IRB is not represented by counsel?
- While people who appear before the IRB have a right to counsel, either paid (a lawyer or registered immigration consultant) or unpaid (a trusted advisor, family member or any other person), it is the choice and responsibility of the person appearing before the IRB to retain and, pay for, counsel. Some people may appear without counsel and represent themselves.
- The IRB is sensitive to the importance of explaining its processes to people appearing before it who are unrepresented by counsel.
How do you apply for judicial review of an IRB decision?
- The Federal Court of Canada is responsible for carrying out the judicial review of an IRB decision. In fact, the IRB is rarely a party to this process.
- The person concerned, Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency (CBSA) may file an application for leave (permission) for judicial review of an IRB decision. This application must be filed with the Federal Court of Canada within 15 days of being notified of the IRB decision.
- Judicial review is different from an appeal on the merits of the case. Leave is not granted unless the applicant can show, for example, that the decision under review contains an error of law or fact, or that a principle of natural justice or procedural fairness has been breached.
You live outside of Canada and want to emigrate to Canada (or to visit Canada and obtain a visa). Can the IRB help?
You live in Canada and want information on how to sponsor family members living outside the country. Can the IRB help?
Questions concerning the sponsorship of family members living outside of Canada should be directed to Citizenship and Immigration Canada (CIC). You should contact the CIC's nearest office which you will find in your telephone directory or call them toll-free at 1-888-242-2100.
How do you apply for a public service job?
The Public Service Commission (PSC) is the agency responsible for most of the recruitment from outside the federal public service. The PSC's prime recruitment tools are advertisements issued via the Internet and their automated information line InfoTel. InfoTel is a 24-hour bilingual telephone service which is accessible seven (7) days a week. Through InfoTel, you can learn about the requirements of current and anticipated job openings. To determine if you should forward your application to the PSC at this time, you may wish to call InfoTel in the following regions:
- Calgary Region: 403-292-4333
- Montreal Region: 514-283-5776
- National Capital Region: 613-996-8436
- Toronto Region: 416-973-4636
- Vancouver Region: 604-666-0350
Refugee Protection Division
What is the difference between a claim that was made at a port of entry and an inland claim?
At a port of entry (airport, seaport or land border between Canada and the United States)
If you make your claim at a port of entry, you will be given a Basis of Claim Form (BOC) to complete as well as a Notice to Appear for a Hearing that tells you when and where your claim will be heard by the RPD. Your completed BOC Form must arrive at the IRB no later than 15 days after the date your claim was referred to the RPD.
At an inland office (an office of Citizenship and Immigration Canada (CIC)
If you make your claim at an inland office, you must complete your BOC Form and have it with you to give to the officer who decides whether your claim is eligible to be referred to the RPD. If the officer decides you are eligible to make a refugee claim the officer will give you a Notice to Appear for a hearing that tells you when and where your claim wil be head by the RPD.
The next step will be your hearing, where an RPD decision-maker called a member will decide whether your claim should be accepted or not.
How do I get counsel?
Your counsel may be:
- a member in good standing of a provincial law society (lawyer or paralegal, in a province that permits paralegals to be members of the law society)
- a member in good standing of the Chambre des notaires du Québec; or
- an immigration consultant who is a member in good standing of the Immigration Consultants of Canada Regulatory Council.
Only these counsel can charge a fee to represent you at the RPD. If you decide to hire a counsel, you must hire this person at your own expense. If you do not have enough money to pay for counsel, you may contact the legal aid office in your province to find out what help, if any, is available. Please refer to the list of provincial legal aid offices included in your Claimant's Kit.
Your counsel must give the RPD the name of the organization they belong to, as well as their membership identification number and also complete the Counsel Contact Information form included in your Claimant's Kit.
Your counsel can also be a family member, a friend or a volunteer who may represent you without charging you a fee. In this case, you need to complete the Notice of Representation Without a Fee or Other Consideration form included in your Claimant's Kit.
What do I need to demonstrate in my claim?
You will have to demonstrate that you meet the United Nations (UN) definition of a Convention refugee or that you are a person in need of protection as described in the Immigration and Refugee Protection Act. Convention refugees are people who have a well-founded fear of persecution in their country of nationality because of their race, religion, nationality, political opinion or membership in a particular social group. Membership in a particular social group can include, but is not limited to, sexual orientation, gender identity, domestic violence and HIV status. Persons in need of protection must show that if they return to their country of nationality, they will personally face a danger of torture, a risk to their life or a risk of cruel and unusual treatment or punishment.
What if I don’t provide the information on time or miss one of the deadlines?
If you do not provide your completed Basis of Claim Form (BOC Form) on time, the RPD may declare that your claim has been abandoned. This means that your claim will not be heard and you cannot be found to be a Convention refugee or a person in need of protection. Before declaring your claim abandoned, the RPD will hold a special hearing for abandonment no later than five working days after your BOC Form was due. For claims made at a port of entry the date of this special hearing is clearly stated on your Notice To Appear. At this special hearing, you will have to explain why you could not provide a completed BOC Form on time and why the RPD should continue with your claim. It is very important that you go to this special hearing if you did not submit your BOC Form on time and you wish to continue to make your refugee claim.
If you did not give your address in Canada to CIC or to the CBSA when your claim was referred to the RPD to begin the refugee protection process, you must give it to the RPD and to CIC or to the CBSA (whichever referred your claim to the RPD) no later than 10 days after the day you received your Notice to Appear for a Hearing. You must also tell the RPD and also CIC or the CBSA immediately if you move. If you do not provide your contact information to the RPD on time, the RPD may not be able to contact you and may declare your claim abandoned.
The RPD expects claimants to be ready to proceed on the date fixed for their hearing. The RPD will only agree to change the date or time of your hearing if there are exceptional circumstances. For example, if there has been an emergency or if something has happened outside your control and you did everything you could to continue with your claim, and your application has been made in accordance with the RPD Rules, the RPD may agree to change the date or time of your proceeding.
Why are there different timelines for some countries?
The Minister of Citizenship and Immigration Canada (CIC) has identified a list of designated countries of origin (DCO), which must follow different regulatory time limits for the hearing of their claims before the RPD. Visit the CIC website for more details.
What kind of documentary evidence is considered at refugee protection hearings?
You must give the RPD documents that support your claim. Therefore, you should begin gathering evidence to support your claim as soon as possible.
You must show the RPD evidence of who you are by giving the RPD official documents with your name and date of birth on them ("identity documents"). For example, you can give a passport, national identity card, birth certificate, school certificate, driver's license, military document, and professional or religious membership card.
Along with identity documents, you can submit other documents that you feel are relevant to your claim, including proof of membership in political organizations, medical or psychological reports, police reports, business records, news clippings, visas, and travel documents (airplane, train or bus tickets).
The decision maker will also rely on information found in the National Documentation Package (NDP) which contains a selection of documents on human rights, security conditions and other issues that are relevant to the determination of refugee protection claims from your country. Each NDP provides full citations to help you locate the documents that are not available on the IRB website. In addition, where possible, links are provided to the documents available on the website of the organization that published the document.
It is your responsibility to go to the IRB website to review the documents in the NDP for your home country as the RPD may consider them when deciding your claim. Alternatively, a paper copy of the NDP may be viewed at any IRB regional office.
It is also your responsibility to check the IRB website for the newest version of the NDP for your home country prior to your hearing.
The RPD may decide to use other documents as well, for example, reports produced by the IRB Research Directorate, media articles or reports from human rights organizations. Copies of any additional documents which the RPD finds useful will be sent to you before your hearing.
Why are there differences between claims that were made on or after December 15, 2012 and those made before?
Claims that were referred before December 15, 2012 are now identified by the IRB as either legacy cases or transitional cases. Information regarding the processing of transitional cases and legacy claims can be found here.
When will I get my decision?
The decision-maker who hears your claim will normally provide a decision and reasons orally at the conclusion of your hearing. If the decision-maker is not ready to deliver their decision orally, your decision will be provided by mail several weeks following the hearing. It is important to ensure that your contact information is current with the RPD at all times.
How does a refugee protection claim get referred to the IRB?
If you make a refugee protection claim either at a port of entry or an inland Citizenship and Immigration Canada (CIC) office the responsible officer from the Canada Border Services Agency (CBSA) or CIC will decide whether your claim is eligible to be referred to the RPD. If your claim is determined to be eligible, it will be referred to the RPD of the IRB to start the refugee determination process in Canada.
Are all refugee claims processed in the same way?
Everyone who makes a claim for refugee protection will get a fair hearing, in accordance with the law and the principles of natural justice and fairness. Amendments to the IRPA that came into force on December 15, 2012 require different treatment of claims according to whether the claim was made before or after that date. For example, new regulations specify time limits for the first scheduled hearing depending on whether the claimant originates from a Designated Country of Origin and if so, whether the claim was made at a port of entry or an inland office.
Will there still be adjournments and postponements in the new system?
Yes, regulations do allow for postponements and adjournments in those cases where natural justice and fairness require it, or because of a pending Front End Security Screening notification or due to operational limitations of the RPD.
Why are there differences for claims made on or after December 15, 2012, and those made before?
Claims that were referred before December 15, 2012 are now identified by the IRB as legacy claims. Cases for which substantive evidence has been heard prior to December 15, 2012 are referred to as "transitional claims" not "legacy claims."
Information on the processing of transitional cases and legacy claims can be found here.
What is the IRB doing to assist unrepresented claimants?
How will you address the needs of vulnerable persons in the new system?
The IRB is aware of and committed to addressing the important needs of vulnerable persons. We already have a number of different tools to help us do this, including the Chairperson’s Guideline 8. The guideline encourages flexibility and sensitivity when dealing with vulnerable persons. The needs and concerns of vulnerable persons are also an important part of member training, which puts emphasis on recognizing and identifying vulnerable persons early on. As always, the decision-maker will then determine to what extent procedural accommodations are necessary on a case-by-case basis.
Can you give me practical examples of how my claim will be dealt with in the new system?
|My claim has been referred but not yet heard by the RPD prior to Coming into Force (CIF) on December 15, 2012.
- Your claim is not subject to the new RPD regulatory timelines.
- You would not have an appeal to the RAD but could seek leave for judicial review by the Federal Court.
- Your claim may be heard either by a GIC RPD member or a public servant RPD member.
|My claim has been heard by a GIC RPD Member before CIF (i.e. substantive evidence has been heard), but no decision has been made. (These claims are referred to as “transitional claims” not “legacy claims.”)
- The decision will be made by the GIC member who heard the claim.
- However, if the GIC RPD member is unavailable to finalize the claim after CIF, the claim may be re-heard by either a public servant RPD member or another GIC RPD member.
- Your claim is not subject to the new RPD regulatory timelines.
- You would not have a right of appeal but could seek leave for judicial review by the Federal Court.
|My claim was rejected by the RPD before December 15, 2012.
- You do not have a right of appeal to the RAD but may be able to seek leave for judicial review by the Federal Court.
|My claim was rejected by the RPD before December 15, 2012 but was ordered back for re-determination after that date by the Federal Court on judicial review.
- Your claim would be re-heard by a public servant RPD member.
- You would not have a right of appeal to the RAD but could seek leave for judicial review by the Federal Court.
I am a claimant and don't really understand the differences between the two systems.
What is most important to understand is that if your claim was referred to the RPD and no hearing has been held in which substantive evidence has been heard prior to December 15, 2012, you now have to follow the Chairperson's new rules that reflect the new regulations for this new system. You do not, however, have to meet the new time limits that are set out in the new regulations and you will still use the Personal Information Form (PIF), rather than the new Basis of Claim Form (BOC Form).
My claim has been pending for several months. Why does someone with a claim that was referred after mine take precedence over me?
The regulations state that new claims, referred to the RPD after December 15, 2012, have to be heard within specific time limits and therefore must take priority. The IRB will continue to schedule and hear legacy claims within its existing resources.
Immigration Appeal Division
What kinds of immigration matters can be appealed to the IRB?
What are the grounds for an appeal?
The Immigration Appeal Division (IAD) may allow an appeal and set aside an original decision based on the grounds of an error in law or fact, or of a breach of a principle of natural justice. In certain cases, the IAD may also give special relief on the basis of humanitarian and compassionate consideration in all the circumstances of the case, which includes taking into account the best interests of a child.
How long does it take for an immigration appeal to be decided by the Immigration Appeal Division?
- On average, it takes the Immigration Appeal Division (IAD) about 10 months to decide an immigration appeal. This is only an average - some cases are decided within a shorter time, whereas some cases take longer.
- The processing time counted by the IAD does not include the time from the filing of the appeal to the IAD receiving the record. Under the IAD Rules , the Canada Border Services Agency (CBSA) or the IRB's Immigration Division has 45 days to provide the record in the case of removal order appeals. Citizenship and Immigration Canada (CIC) has 120 days to provide the record in the case of sponsorship and residency obligation appeals.
What is Alternative Dispute Resolution and how does it work?
- Alternative Dispute Resolution (ADR) offers a more informal, less confrontational and more consensual approach such as mediation to settle appeals, particularly (in appropriate cases) sponsorship appeals.
- The ADR process usually involves an in-person meeting - an ADR conference - that is scheduled to last for one hour. A dispute resolution officer (DRO) conducts the ADR conference with the Minister's counsel (representing Citizenship and Immigration Canada) and the appellant and her or his counsel and assists them to agree to a settlement of the appeal.
What happens if someone appeals his or her removal order to the Immigration Appeal Division?
- If the appeal is allowed, the removal order is set aside and the person is permitted to remain in Canada. If the appeal is dismissed, the removal order is upheld and the Canada Border Services Agency (CBSA) then has the power to remove the person from Canada.
- The Immigration Appeal Division (IAD) may stay the removal order under certain conditions. This means that the removal order will not be acted on for a period of time. At any time after a stay is ordered, the IAD may change the conditions, cancel the stay or change its duration. If the IAD cancels the stay, it will then allow or dismiss the appeal.
- Under the Immigration and Refugee Protection Act (IRPA), a stay of a removal order based on criminality will be automatically lifted if the person concerned re-offends or breaks the conditions of the stay. The CBSA may then issue a deportation order to remove the person from Canada without the case returning to the IAD.
What happens when a person appeals a sponsorship refusal?
- The sponsor has 30 days after the refusal to make an appeal to the Immigration Appeal Division (IAD). The appeal will be heard by a member (decision-maker) following the tribunal process. Some sponsorship appeals go through an Alternative Dispute Resolution (ADR) process. A dispute resolution officer (usually a member of the IAD) encourages the parties to resolve the appeal without a full hearing.
- If the appeal is allowed, CIC will resume processing the sponsorship application or it may challenge the decision of the IAD by applying to the Federal Court of Canada for leave for judicial review. It is possible for CIC to refuse the application on other grounds.
- If the appeal is dismissed, the sponsor may apply to the Federal Court of Canada for leave for judicial review.
- The Federal Court will either dismiss the application by CIC or the sponsor or return the case to the IAD for re-hearing.
What happens when a person appeals a Citizenship and Immigration Canada decision regarding the residency obligation?
- The person who is alleged not to have complied with the residency obligation must make the appeal no later than 60 days after receiving the written decision.
- Upon application, the Immigration Appeal Division (IAD) can issue an order that the person must physically appear at the hearing. Once the order is made, a CIC officer will issue a travel document allowing the person to return to Canada for the hearing.
- A member (decision-maker) will hear the appeal following the tribunal process.
- If the appeal regarding the residency obligation is allowed, the IAD will set aside the decision of the officer and the person will not lose permanent resident status. If the appeal is dismissed and the person is in Canada, the person will lose permanent resident status and the IAD will make a removal order.
Why are some people detained and what happens after someone is detained?
- The decision to detain someone is made by immigration officials of the Canada Border Services Agency (CBSA).
- The CBSA may detain a foreign national or permanent resident if it has reasonable grounds to believe the person:
- is unlikely to appear for an immigration appointment, hearing or removal;
- is a danger to the public;
- is inadmissible on security grounds or for violating human or international rights, or
- has not established her or his identity to the satisfaction of the CBSA (only applies to foreign nationals, not permanent residents).
- After someone is detained, the CBSA must bring the person before the Immigration Division (ID) of the IRB within 48 hours (or as soon as possible afterwards) to have the reasons for the detention reviewed. Should the ID member (decision-maker) order that detention continues, the next detention review is held within seven days; subsequent detention reviews are held within every 30 days thereafter.
- If the ID member finds that there is no longer reason under the Immigration and Refugee Protection Act (IRPA) to continue detention, the member will order the person released, with or without terms and conditions. Terms may include, for example, posting a security deposit or reporting on a regular basis to a CBSA office.
Why are some people considered inadmissible to Canada?
- The Canada Border Services Agency (CBSA) screens people for admissibility to Canada. Citizenship and Immigration Canada (CIC) may, in a limited number of instances, also screen people for admissibility to Canada.
- Grounds for inadmissibility include:
- failure in some way to comply with Immigration and Refugee Protection Act (IRPA);
- posing a security threat;
- violation of human or international rights;
- involvement in crime or organized crime;
- health conditions (in some cases).
- financial reasons; or
- accompanying an inadmissible family member.
What are the possible outcomes of an admissibility hearing?
- If the Canada Border Services Agency (CBSA) - or, in some cases, Citizenship and Immigration Canada - has reason to believe that someone is inadmissible to Canada, they may ask the Immigration Division (ID) of the IRB to hold an admissibility hearing. Admissibility hearings determine if a person may enter or remain in Canada.
- If the person is not a permanent resident, however, the CBSA may issue a removal order without an IRB admissibility hearing.
- Based on the evidence presented by the CBSA (or CIC) and by the person concerned, the ID member (decision-maker) determines whether or not the allegations are founded.
- If the ID member decides that the allegations are founded, the member issues a removal order for the person concerned.
- If the ID member decides that the allegations are not founded, the member allows the person concerned to enter or remain in Canada.
What is a removal order and what happens after one is issued?
- There are three different types of removal orders.
- Departure order - the person must leave Canada within 30 days after the order comes into effect. Before leaving Canada, the person must notify the Canada Border Services Agency (CBSA) to get a certificate of departure as proof of compliance. If the person does not leave or does not receive the certificate of departure, the departure order automatically becomes a deportation order after 30 days.
- Exclusion order - the person must leave Canada and cannot return for a year (or two, in some cases) without written permission from an immigration officer.
- Deportation order - the person must leave Canada and may never return without written permission from an immigration officer. As well, if the person did not leave voluntarily and the CBSA had to pay the cost of deportation, the person must repay the cost of the deportation before he or she is granted permission to return.
- In all cases, the person must appear before an immigration officer at the port of entry before leaving Canada.
- In some cases, a person can appeal a removal order to the Immigration Appeal Division (IAD) of the IRB. In some cases, the person may apply for leave (permission) to the Federal Court of Canada to review the removal order.
- After a removal order is issued, the case is referred back to the CBSA to be enforced.