Winning and Losing an In Canada Refugee Claim
Once you start down the [refugee] path, forever will it dominate your destiny -Yoda [paraphrased]
Once an individual makes a refugee claim in Canada two paths emerge. One path is regularization, that is success through the refugee or refugee appeal process (sometimes involving the Federal Court). Remember that a protected person (someone that has been granted refugee protection) can still lose that status and even PR.
The other path is rejection and failure. This conditional departure order that was issued upon eligibility soon becomes a deportation order.
What are the options for those that fail?
Some, can and will marry. An in Canada spousal or common law partnership class application can, if filed early enough, can result in an administrative deferral of removal. Bear in mind however that the timing of such a marriage or union will raise concerns regarding credibility and genuineness. There may well be an interview.
Some can file a Humanitarian and Compassionate Application (H&C) (normally not in the cards for 12 months after rejection; but there is an exception if BIOC is at play). The H&C is about establishment in Canada, family here, BIOC, and hardship in a return scenario. The H&C does not effect removal and the applicant is essentially gambling that a positive first stage decision will be made before removal (some kind of logistical or other travel arrangement/coordination complication can help in wringing some precious weeks and months out).
Indeed, in some cases, it’s better to do a H&C first rather than a refugee claim (although this stratagem should be carefully considered). The “up front” H&C does not result in a conditional departure order, may well result in status, and even if rejected could also lay the groundwork for the refugee claim later. Again, this should be contemplated only with experienced counsel, counsel that is familiar with the country in question and is well versed in the differences (and overlap) between the H&C and ss.96/97.
There is no LMIA-WP or PNP solution. This is false hope peddled to the desperate. Leaving Canada and thinking that a failed refugee claimant can automatically return is also pie-in-the-sky thinking. Beyond being unable to satisfy intent, a failed refugee claimant subject to a deportation order will require an ARC to return.
The PRRA doesn’t kick in for 12 months after the refugee/appeal/JR of the above (if applicable). The PRRA is constrained to new evidence and is notoriously difficult.
There are various statutory, regulatory and administrative deferrals of removal. Some may benefit from a TSR or ADR (temporary suspension of removal or administrative deferral of removal -we don’t deport individuals to certain countries). Once these are all exhausted (or are not in play) then a removals officer will come calling. Failure to cooperate with removal may mean detention prior to removal or a warrant.
Many people think that the removals officer can defer removal. They can but their discretion is limited. They may grant a short term deferral because of a medical condition/treatment; completion of a school term for children; or other (unusual) circumstance.
If there is an underlying application for judicial review (say, for example, an on-going JR of a refused PRRA -or even in Canada spousal/common law or H&C; or a decision by the removals officer not to defer) an applicant can seek an emergency stay from the Federal Court -something I’ve discussed in a prior post.
Given the serious consequences inherent in making a refugee claim it is imperative that an individual do their own research, find experienced counsel, ask questions, prepare and not take things lightly.