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GUIDE TO CLAIMING REFUGEE STATUS
Chair of International Migration Law
Université de Montréal
Note: This guide provides general information on making a refugee status claim. For advice about your personal situation, please contact a lawyer
1. STEPS TOWARD OBTAINING REFUGEE STATUS
1-Claim made to animmigration officer / You make a claim for refugee status at the border or an Immigration Canada office. The immigration officer asks questions and takes notes, but he has no authority to decide whether you should be accepted as a refugee.
Note: The immigration officer’s notes remain in your file.
2 - Complete the Personal Information Form (PIF) / The Immigration and Refugee Board (IRB) sends you a very importantdocument called the “Personal Information Form” (PIF).
You must complete this form and return it to the Immigration and Refugee Board (IRB) no later than 28 days from the date you receive the PIF. If the IRB does not receive your PIF within 28 days after the date you received it, your refugee status claim could be rejected.
If you think that you will not be able to complete and return the PIF within this 28-day period, you or your lawyer can ask for an extension. The request must be made within the 28-day period. Such extensions are rarely granted, so it is always best to submit the PIF within the 28-day period.
It is very important to get help from a lawyerto complete the PIF. The PIF is the most important document for your refugee claim, so it is essential that it be well written.
3-Make sure all the documents supporting your claim are in your IRB file / Before your refugee status hearing, make sure that all documents that could support your claim are in your IRB file (see page 12 for details).
Your lawyer will tell you what documents are needed and will put them in the IRB file, but you can do your part by trying to get all the documents that could support your claim as early as possible.
4- The IRB refugee status hearing / At the refugee status hearing, you will tell the IRB judge about the events that make you afraid to return to your country.
Your lawyer will be there to help you, but it will be up to you to convince the IRB that you should be accepted as a refugee. In general, the refugee status hearing takes place about 9 months after you return the PIF to the IRB.
2. FINDING A LEGAL COUNSEL
It is very important to be assisted by a competent legal counsel at all stages of your refugee claim process. A legal counsel may be a lawyer or a consultant. Here are the differences.
LAWYER / CONSULTANT- Hasa law degree from a Canadian university
- Can represent you in Federal Court if your refugee claim is rejected.
- In some cases, can be paid by a Legal Aid mandate. If so, you have nothing to pay.
- Lawyers are members of the Quebec Bar Association, a professional organization responsible for making sure that lawyers respect professional standards.
- Before you decide on a lawyer, CHECK to find out if the lawyer has experience in immigration.
1 Notre-Dame East, suite 9.80
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- May not have studied law in university or have a law degree
- Not able to represent you in Federal Court if your refugee claim is rejected.
- Can never be paid by a Legal Aid mandate. In all cases, you have to pay the consultant yourself.
- Consultants must be members of the Canadian Society of Immigration Consultants in order to represent clients for refugee claims. The CSIC ensures that consultants are adequately trained.
- Before you decide on a consultant, CHECK to make sure that the consultant is a member of this Society.
Do asylum seekers have to pay for legal services?
- Asylum seekers have the right to be represented free of charge by a lawyer employed by Legal Aid OR by a private lawyer who is paid under a Legal Aid mandate.
- Unfortunately, few lawyers accept to be paid by a Legal Aid mandate because Legal Aid does not pay much. Right from the start, ask your lawyer if he will accept to be paid by a Legal Aid mandate.
- Lawyers are not allowed to ask you to pay a supplement if they are being paid by a Legal Aid mandate.
- If you are unable to find a private lawyer who will accept a Legal Aid mandate,you will have to pay all the costs yourself. Ask your lawyer (or consultant) how much it will cost from the beginning to the end of the legal procedures.
Role of the lawyer
Your lawyer’s role is to help you at every step of your refugee claim. In particular, he should:
- Help you complete the Personal Information Form (PIF).
- Make sure that all the necessary documents are in your IRB file
- Help you prepare for the IRB hearing.
- Help you explain your story at the IRB hearing
- Help you take appropriate action if your refugee claim is rejected
It is vital to tell your lawyer all the facts related to your refugee claim. It is particularly important to inform your lawyer about weak points in your story, to avoid last-minute surprises at the hearing.
Sometimes it may be difficult to talk about certain painful experiences, but it is important that your lawyer be aware of everything that you have been through.
Everything you tell your lawyer is confidential.
3. The Personal Information Form (PIF)
Before meeting with your lawyer,it is a good idea to write a detailed description of all the events on which your refugee claim is based. Your lawyer will use this information to prepare a final version of the PIF.
Include all the essential relevant facts / Try to include all the essential relevant facts. The PIF must be as complete as possible.The PIF provides two pages to tell your story, but you can write more if necessary. Your lawyer will decide which facts should be included in the final version of the PIF.
For each event, explain:
-What happened
-When it happened
-Where it happened
-Why it happened (if you know – but do not speculate about the reasons if you do not know)
If you forget to mention an essential fact in your PIF, and you wait until the day of your IRB refugee claim hearing to mention it, there is a risk that the IRB judge will think that you made it up at the last minute.
If you have already filled in your PIF, and you realize that you forgot to mention an important fact, tell your lawyer as soon as possible. He can correct the PIF before the IRB hearing.
Describe events in order / Describe events in the order in which they happened; it will be easier for the IRB judge to understand your story.
Precise dates / Mention precise dates if you remember them. If you are not sure, do not make them up or try to guess!
If you do not remember the exact date of an event, give an approximate date. For example, you might say that the event happened “early in September 2007” or “in the spring of 2005” or “shortly after the elections of May 2004”.
The IRB judge will read your PIF before the hearing. His first impression of your case will be based on what you have written in the PIF, so it is very important to explain as clearly as possible in the PIF the facts on which your refugee status claim is based.
Basic principles - PIF and testimony
Tell the truth
If the IRB judge discovers that you have hidden relevant facts, or that you have not told the truth, even about minor points, this may lead him to doubt your entire story.
Some lawyers, consultants or smugglers may tell you “I have a good story for you – it’s sure to work!” In fact, this type of strategy often leads to rejection of the refugee claim because:
The story has been ‘sold’ to other claimants. The IRB judge has probably already heard the story many times and knows that it is fabricated;
When a story is memorized, it shows: the person doesn’t look sincere and is likely to get mixed up or to forget parts of the story.
Avoid contradictionsin the story that you tell at different steps in the refugee claims process.
If there are contradictions between the statements you make at different steps in the process, the IRB judge may doubt your sincerity.
Question: If I realize that I made a false or incomplete statement, what should I do?
Do NOT conclude: «At the border, I said something that was untrue, but I will not change my story because it would look as if I was contradicting myself».
On the contrary: the best strategy is to make corrections as soon as possible, and to explain why you made a false or incomplete declaration in the past.
The sooner you correct your statement, the less it will hurt your credibility
Discuss this with your lawyer
Tell your story the way you experienced it, and talk about how you felt. It is important to try to communicate with the IRB judge at a human level, to convince him that you are sincere, that you personally experienced the events that you describe, and that you truly are afraid to be sent back to your country of originThe IRB hearing is not open to the public. It is important to talk about all the events that made you decide to leave your country, even if it is painful. Statements that you make at the hearing will remain confidential.
Before signing your PIF…
Check to make sure there are no mistakes and that all the important facts are mentioned. When you sign the PIF, you are confirming that everything written in the PIF is true, as if you were under oath.If you realize that there are mistakes or omissions, ask that the corrections be made before you sign the PIF.
Some lawyers or consultants will ask you to sign a blank PIF, telling you that they will complete it themselves on the basis of the information you have provided. Never sign a blank PIF.
If you do not speak either English or French fluently
Demand that the final version of the PIF be read back to you in your native language by an interpreter. You will then be able to make corrections, if necessary.
4. Refugee definition according to Canadian law
Even if you have been through very difficult experiences, this may not be enough to be accepted as a refugee. Your experience must fit into the legal definition of a refugee.
Here is the definition of a refugee according to the laws of Canada. To be accepted as a refugee in Canada, you must prove to the IRB that you fit into at least one of the categories mentioned in the definition.
A refugee is a person who has serious reasons to fear that if he were sent back to the country of which he is a citizen:1. He would be persecuted because of his:
-race, ethnicity or language, or
-nationality, or
-religion, or
-belonging to a particular social group, or
-political opinions.
OR
2. He would be exposed to:
- a risk of torture, or
- a risk to his life, or
- a risk of cruel or unusual treatment or punishment
Let’s now look at this definition in greater detail:
A refugee is a person who has serious reasons to fear that if he were sent back to the country of origin, he would be persecuted for one of the following reasons:Race, ethnicity, or language / The word ‘race’ includes ethnic identity and language
Nationality
/ Nationality = being a citizen of a countryReligion
(or the refusal to practice a religion) / This includes persecution based on:-belonging to a religious group or practicing religious rites or customs
-refusal to join a religious group or to conform to religious rules
Belonging to a particular social group / Examples of a ‘particular social group’:
The immediate familyof a person who is persecuted for reasons mentioned in this definition. For example, a person whose life is threatened because the father or the spouse is a political opponent of the government (even if the individual is not personally involved in political activity).
A woman who is beaten by her husband
Homosexuals who are severely mistreated
Political opinions / This includes persecution because the person:
- is active in an opposition political party or political movement;
- publicly criticized the government or armed rebel forces;
- is involved in defending human rights in a country in which other human rights defenders have been mistreated or killed;
- because the government or armed rebel groups believe, rightly or wrongly, that the person is a political opponent
You may also be accepted as a refugee if you fit the following definition:
A refugee is a person who has serious reasons to fear that if he were sent back to the country of origin, he would be exposed to:A risk of torture / by government authorities, or with the complicity or tolerance of government authorities
A threat to the person’s life / This does NOT include:
-individuals whose life is threatened by ‘natural’ catastrophes such as an epidemic or a famine, or by lack of adequate health care
-individuals who, in the context of armed conflict, are exposed to the same risks as everybody else. You must show that you are personally at risk or that you belong to a group that is targeted.
Examples of individuals who ARE included:
-a person threatened by a criminal gang but who has not committed any crime himself;
-a person threatened by the police because he denounced police corruption;
-individuals whose lives are threatened because they refuse to collaborate with soldiers or an armed rebel group
A risk of cruel or unusual treatment or punishment / This includes:
- torture by non-governmental agents;
- an extreme punishment such as stoning
To be accepted as a refugee, you need to convince the IRB that you fit into one (or several) of the categories listed on pages 7 to 9.
To be accepted as a refugee, you must in all cases also prove two other facts:
NO OTHER SAFE REGION IN YOUR COUNTRY / There is no other region in your country of origin in which you would be safe, or that it would have been very difficult for you to go to this region.NO STATE PROTECTION / Government authorities of your country (for example, the police) refuse or are unable to protect you against your persecutors.
Examples:
The police, soldiers or other government agents are themselves involved in the acts of persecution.
The government is unable or unwilling to protect citizens against aggression carried out by armed groups (rebels and paramilitaries).
A woman who is beaten by her husband, but who does not go to the police because she knows of other cases when women have complained to the police for this reason, and the police have refused to take measures to protect them.
A man who is beaten up because he is a homosexual. He goes to see the police to try to file a complaint against the people who beat him up, but the police laugh at him, insult him and refuse to take his complaint.
To sum up, you must prove that:
If you are sent back to the country of which you are a citizen, you would run a serious risk of severe mistreatment.
You are at risk for one of the reasons mentioned in the law(see pages 6-8)
The authorities in your country refuse to protect you, or are unable to do so, and you would not be safe anywhere in your country.
How can you prove these facts?
By describing the mistreatment that you have experienced yourself
By describing the mistreatment experienced by people like you
For example: you left your country because other members of the political movement that you belonged to were arrested, and were afraid that you would also be arrested if you stayed in your country.
5. Explaining delays
If there have been delays, you must explain the reason for these delays.Please discuss this question with your lawyer.
If there was a delay between the events on which your refugee claim is based AND the moment when you left your country of origin / If, after being detained, attacked or threatened, you waited for some time before leaving your country of origin, the IRB may sometimes say that this shows that you were not really afraid, or that the persecution was not really serious.You will have to explain the reasons for this ‘delay’, such as: family obligations, lack of money, difficulty obtaining travel documents, or similar difficulties.
If there was a delay betweenthe moment when you left your country of origin AND the moment when you made a claim for refugee status / If you stayed in other countriesafter leaving your country of origin, before coming to Canada, you must explain why you did not make a refugee claim in these countries.
If you only made a stopover in another country, this will usually not pose a problem (unless you came by way of the United States). However, if you stayed for a longer period in a third country, you will have to explain why you did not claim refugee status in that country.
If you did make a refugee claim in another country, but it was rejected, you will also have to explain the circumstances.
In most cases, the IRB will have copies of all the documents from the other countries in which you have lived or transited.
If you did not claim refugee status immediately as soon as you arrived in Canada. / In some cases, the IRB may say that delay in asking for refugee status shows that you were not really afraid of being sent back to your country. If so, you must explain why you did not claim refugee status as soon as you arrived in Canada.
6. Steps leading up to the refugee status hearing
Check your IRB file- Before the hearing, you can help your lawyer check whether all the information in your IRB file is accurate.
- In particular: check the immigration officer’s report on the declarations you made when you first asked for refugee status (at the border or the Immigration Canada office).
- If the immigration officer did not accurately report what you said, alert your lawyer as early as possible. He will notify the IRB that you challenge the accuracy of the officer’s report. Otherwise, the apparent ‘contradictions’ between the officer’s report and your later declarations may harm your credibility.
Adding documents to your IRB file
If your story is confirmed by documents or photographs, this may make it more credible. Your lawyer will tell you what documents would be useful, but you can help by informing your lawyer of the existence of relevant documents, or of people who can confirm your version of the facts.Often it takes a long time to obtain documents, so it is wise to start as early as possible.
Examples of documents supporting your refugee claim
- A written document signed under oath by a person who has personal knowledge of an essential element of your story (an affidavit).
- A certificate from a doctor or a psychologist confirming that you have physical or emotional symptoms as a consequence of the mistreatment that you have suffered (see page 15, Health and Social Services)
- A membership card, if you were persecuted for membership in a political party
- A photograph or a newspaper article that shows that you took part in an event that led to your persecution or mistreatment.
Documents on the situation in your country of origin
- The IRB judge who will hear your refugee status claim will have, in his file, documents on the political and social conditions in your country.
- You have the right to visit the IRB Documentation Centre to check whether the information in their reports on your country is accurate and up to date. If not, it may be important for your lawyer to file additional documents containing the correct information. You can help your lawyer find such documents.
Sources of documents on country conditions
IRB Documentation Centre