Failed Refugee Claims
A negative refugee claim is often not the end of the judicial road. Depending on how the decision is written and how it was made, it may be appealed to the Federal Court of Canada. Canada actually does not have an appeal process for refugee decisions. Although the Immigration and Refuge Protection Act has a Refugee Appeal Division written in, it was never implemented. As a result, all we are left with is a judicial review process which allows people to "appeal" their negative decision on very limited grounds. Only lawyers can bring applications for leave to the Federal Court.

A judicial review allows you to challenge a refugee decision on the grounds that it is wrong in law, in fact or in mixed fact and law. The first step is to file an application for leave. That is, you have to ask the Court for leave, i.e. permission, to hear your case. You have to file this application within 15 days of receiving the decision. Then, 30 days later, you have to "perfect" the application by filing an application record, with an affidavit, a table of contents, and an argument. The department of Justice then responds to your argument, and you get to reply. The Court then decides whether it will hear your case or not. This is a way for the Court to weed out weak cases before they get to the hearing stage. If the Court decides to hear your case, you will not find out for at least 6 months. If they decide not to hear your case, you will likely know within one month.

The Federal Court of Canada web site has recently added a section on procedures affecting refugees and immigrants. It contains a very useful timeline for filing applications for leave and for judicial review, as well as a judicial review guide, and links to the Act, the Rules and the forms. For more information, click here.

While your refugee decision is being judicially reviewed, you cannot be removed from Canada. CBSA must wait for the decision from the Court. The one exception is if you are deemed to have "sojourned" or resided in the U.S. prior to entering Canada. If you have, then you are not privy to a statutory stay. If, after hearing your case, the Court agrees that the Board member made a mistake, it will order that your case be heard again by the Immigration and Refugee Board. The Court does not have the jurisdiction to simply overturn the decision and grant you refugee status. You will simply receive a second hearing, where another decision will be made. Sometimes, the Court will issue instructions for the Board.

The frustrating part is that if the Board re-hears your case after a successful federal Court case, but for whatever reason, things have changed in your country and you are no longer at risk of being persecuted, your claim will be rightfully denied. It's frustrating because had the Board made the right decision the first time, you would have been granted refugee protection.

Judicial reviews are complex procedures where legal issues are debated. Deadlines are crucial and legal arguments are very sophisticated. For that reason, it is highly recommended that you hire a lawyer to do the work for you. If you cannot afford one, you might qualify for a Legal Aid Certificate. Typically, LAO will give you a three-hour opinion certificate, which allows you to choose a lawyer who, after speaking with you, will write an opinion to LAO about the chances of success before the Federal Court. LAO will then decide whether to grant you a full certificate. Regardless of all of this, it is essential that all timelines be respected; otherwise, you risk having your application dismissed.