Canada is signatory to the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol; and the Convention against Torture (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Based on these international instruments, there are two types of protected persons: Convention refugees and Persons in need of protection.
A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion:
- is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail of the protection of each of those countries; or
- not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
Persons in need of protection
A person in need of protection is a foreign national in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally:
- to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
- to a risk to their life or to a risk of cruel and unusual treatment or punishment if:
- the foreign national is unable or, because of that risk, unwilling to avail of the protection of that country;
- the risk would be faced by the foreign national in every part of that country and is not faced generally by other individuals in or from that country;
- the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards; and
- the risk is not caused by the inability of that country to provide adequate health or medical care.
Some people are not eligible to claim refugee protection in Canada. Your refugee claim may not be eligible for referral to the IRB if:
- refugee protection has been conferred on the claimant under the Immigration Act of Canada;
- a claim for refugee protection by the claimant has been rejected by the Board;
- a prior claim by the claimant was determined to be ineligible to be referred to the RPD, or to have been withdrawn or abandoned;
- the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country;
- the claimant came directly or indirectly to Canada arrived via the Canada-United States border (see Safe Third Country Agreement below);
- the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
A claim is not ineligible by reason of serious criminality under A101(1)(f) unless:
- in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or
- in the case of inadmissibility by reason of a conviction outside Canada, the Minister of Citizenship and Immigration is of the opinion that the foreign national is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years.
Who can make a claim?
Foreign nationals and permanent residents can make claims for protection. Permanent residents may make claims for protection at an admissibility hearing if a claim is made prior to the issuance of a removal order. Where an individual makes a claim for refugee protection while their case is being dealt with as part of another immigration matter, the matter will be adjourned, and the claimant should be referred to an officer responsible for processing claims for refugee protection. For example, if a claimant, as part of or as a result of a refusal for a humanitarian and compassionate grounds request (before an officer issues a removal order), expresses an intention to make a claim for refugee protection, the officer will adjourn the process and refer the claimant to an officer designated to receive claims for refugee protection.
Safe Third Country Agreement
Under an agreement with the United States, refugee claimants must seek asylum (protection) in the first safe country where they arrive. The Safe Third Country Agreement applies only to refugee claimants who are seeking entry to Canada from the U.S.:
- at Canada-U.S. land border crossings
- by train or
- at airports, only if the person seeking refugee protection in Canada has been refused refugee status in the U.S. and is in transit through Canada after being deported from the U.S.
There are four types of exceptions to the agreement:
- Family member exceptions
- Unaccompanied minors exception
- Document holder exceptions
- Public interest exceptions
Family member exceptions
Refugee claimants may qualify under this category of exceptions if they have a family member who:
- is a Canadian citizen
- is a permanent resident of Canada
- is a protected person under Canadian immigration legislation
- has made a claim for refugee status in Canada that has been accepted by the Immigration and Refugee Board of Canada (IRB)
- has had his or her removal order stayed on humanitarian and compassionate grounds
- holds a valid Canadian work permit
- holds a valid Canadian study permit, or
- is over 18 years old and has a claim for refugee protection that has been referred to the IRB for determination.
The Safe Third Country Agreement recognizes a family member as the following:
- legal guardian
- father or mother
- sister or brother
- grandfather or grandmother
- uncle or aunt
- nephew or niece
- common-law partner
Unaccompanied minors exception
Refugee claimants may qualify under this category of exceptions if they are minors (under the age of 18) who:
- are not accompanied by their mother, father or legal guardian
- have neither a spouse nor a common-law partner, and
- do not have a mother, a father or a legal guardian in Canada or the United States.
Document holder exceptions
Refugee claimants may qualify under this category of exceptions if they:
- hold a valid Canadian visa (other than a transit visa)
- hold a valid work permit
- hold a valid study permit
- hold a travel document (for permanent residents or refugees) or other valid admission document issued by Canada, or
- are not required (exempt) to get a temporary resident visa to enter Canada but require a U.S.–issued visa to enter the U.S.
Public interest exceptions
Public interest exceptions
Refugee claimants may qualify under this category of exceptions if: they have been charged with or convicted of an offence that could subject them to the death penalty in the U.S. or in a third country. However, a refugee claimant is ineligible if he or she has been found inadmissible in Canada on the grounds of security, for violating human or international rights, or for serious criminality, if the Minister finds the person to be a danger to the public.
Last updated: 18.03.2016