Legislative Guide for the Refugee Protection Division - Chapter 3: Overview of the Refugee Protection Determination Process

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CHAPTER 3

3. OVERVIEW OF THE REFUGEE PROTECTION DETERMINATION PROCESS

3.1 Definitions

3.1.1 "Refugee Protection"

Description	Reference
— "refugee protection" is conferred on a person when the Board determines the person to be a Convention refugee or a person in need of protection	IRPA, s. 95(1)( b)
• "refugee protection" also is conferred under IRPA on a person who, before the coming into force of IRPA, was (i) determined in Canada to be a Convention refugee, (ii) was granted landing under the Regulations as a Convention refugee, or (iii) was granted landing under the Regulations as a member of the Post-determination Refugee Claimants in Canada Class	IRP Reg. 338
Note:IRPA provides that "refugee protection" may also be conferred through overseas selection and through the pre-removal risk assessment by the Minister.	IRPA, ss. 95(1)( a),( c)

3.1.2 "Protected Person" / Rights of Protected Person

Description	Reference
— a *"protected person"* is a person on whom "refugee protection" is conferred
— the person is no longer a "protected person" if the person's claim or application has subsequently been deemed to be rejected under: • s. 108(3) (cessation - RPD), • s. 109(3) (vacation - RPD), or • s. 114(4) (vacation - PRRA)	IRPA, s. 95(2)
— a protected person: • may become a permanent resident, as set out in IRPA	IRPA, s. 21(2)
• shall be provided with a document indicating their status	IRPA, s. 31(1)
• may appeal to the IAD against a decision at an examination or an admissibility hearing to make a removal order against them	IRPA, s. 63(3)
• has a right of non-refoulement, as set out in IRPA	IRPA, s. 115

3.1.3 "Convention refugee" / "Person in need of protection"

Description	Reference
— the inclusion clauses of the *"Convention refugee"* definition are set out in IRPA, s. 96, including • the five Convention grounds (race, religion, nationality, membership in a particular social group or political opinion), and • the requirement to establish a claim against each country of the person's nationality, or, if the person is statelessness, against the country of former habitual residence	IRPA, s. 96
— a *"person in need of protection"* is a person 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
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture, or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment, as described	IRPA, s. 97(1)
— a person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a *"person in need of protection"*	IRPA, s. 97(2)
— exclusion clauses: a person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection	IRPA, s. 98
• "Refugee Convention" means the United Nations Convention Relating to the Status of Refugees, signed at Geneva on July 28, 1951, and the ProTable of Contentsol to that Convention, signed at New York on January 31, 1967	IRPA, s. 2(1)
• Sections E and F of Article 1 of the Refugee Convention are set out in the schedule	IRPA, Schedule
• *"Convention Against Torture"* means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed at New York on December 10, 1984	IRPA, s. 2(1)
• Article 1 of the Convention Against Torture is set out in the schedule	IRPA, Schedule
• cessation clauses: a claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the five circumstances described, including that "the reasons for which the person sought refugee protection have ceased to exist"	IRPA, s. 108(1)
• on application by the Minister, the RPD may determine that refugee protection has ceased for any of the reasons described in s. 108(1)	IRPA, s. 108(2)

3.2 Key Provisions in the Refugee Protection Determination Process

3.2.1 Eligibility and Referral

Description	Reference
— a claim for refugee protection made by a person inside Canada • must be made to an officer, and • may not be made by a person who is subject to a removal order	IRPA, s. 99(3)
— an officer shall, within three working days after receipt of a claim referred to in s. 99(3), determine whether the claim is eligible to be referred to the RPD and, if it is eligible, shall refer the claim in accordance with the rules of the Board	IRPA, s. 100(1) IRP Reg. 159 RPD Rule 3
— the RPD may not consider a claim until it is referred by the officer • if the claim is not referred within the three-day period referred to in s. 99(1), it is deemed to be referred, unless there is a suspension or it is determined to be ineligible	IRPA, s. 100(3)
— IRPA sets out six categories of ineligibility for a claimant to have a claim referred to the RPD	IRPA, s. 101(1)

3.2.2 Process at the RPD

Description	Reference
— the RPD must hold a hearing,	IRPA, s. 170( b)
• unless the RPD accepts the claim without a hearing	IRPA, s. 170( f)
— the RPD: • shall accept a claim for refugee protection if it determines that the claimant is a Convention refugee or person in need of protection, and • shall otherwise reject the claim	IRPA, s. 107(1)
— on application by the Minister, the RPD may determine that refugee protection has ceased for any of the reasons described in s. 108(1) • if the application is allowed, the claim of the person is deemed to be rejected • cessation ( IRPA, s. 108(1)( e)) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment	IRPA, s. 108
— the RPD may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter	IRPA, s. 109

3.2.3 Process at the RAD

Description	Reference
NOTE:IRPA, ss. 110 and 111, and other provisions regarding the RAD, are not yet in force.
— a person or the Minister may appeal, on a question of law, of fact or of mixed law and fact, to the RAD against a decision of the RPD • to allow or reject the person's claim for refugee protection, or • to reject the Minister's Application to Vacate Refugee Protection or Application to Cease Refugee Protection	IRPA, s. 110(1)
— the RAD proceeds without a hearing, on the basis of the record at the RPD	IRPA, s. 110(3)
— the RAD makes one of the following decisions: (a) confirm the determination of the RPD; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the RPD for re-determination , giving the directions to the RPD that it considers appropriate	IRPA, s. 111(1)

3.2.4 Judicial Review - Federal Court

Description	Reference
— an application for judicial review in the Federal Court-Trial Division requires leave of the Court	IRPA, s. 72(1)
— an appeal to the Federal Court of Appeal from a decision of the Trial Division may be made only if, in rendering judgment, the Trial Division certifies that a serious question of general importance is involved and states the question	IRPA, s. 74( d)

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