Speaker 1 0:05
This episode of the Canadian immigration podcast is sponsored by the Canadian immigration Institute, one of the best sources of video content on Canadian immigration to help you navigate your way through the Canadian immigration process. Head on over to the YouTube channel, where there's tons of video content, and you can join mark yes myself
Speaker 1 0:28
in a number of live video streams, Q and A's all designed to help you navigate your way through this crazy Canadian immigration process. When you're done there, like and subscribe and then head on over to the Canadian Immigration institute.com where you can find all those awesome DIY courses that I've been talking about. Thank you, Canadian immigration Institute.
Mark Holthe 0:50
You are the sponsor of this amazing little podcast. You
Unknown Speaker 0:59
music.
Speaker 2 1:05
The Canadian immigration process can be complex and frustrating with the Canadian Immigration Department making it virtually impossible to speak to an officer. There are few places to turn to for trusted information. The Canadian immigration podcast was created to fill this void by offering the latest on immigration law, policy and practice. Please welcome ex immigration officer and Canadian immigration lawyer Mark Holthe as he is joined by industry leaders across Canada sharing insight to help you along your way.
Mark Holthe 1:52
Welcome back everyone to another episode of the Canadian immigration podcast. I'm Mark Holthe, your host, and I'm here again with my co host of this time's up series, Alicia, back when Bucha, Harry, how are you? Alicia,
Alicia Backman-Beharry 2:03
I'm doing well. Mark and I thought that starting to outline something about time's up that people need to know, and specifically, when not to make a refugee claim is something that's super important right now and quite timely, because we've seen notices from the minister right now, talking about, you know, our consultants encouraging people to make claims that may not be well founded, yeah,
Mark Holthe 2:29
and that's a big issue right now. The numbers of refugee claims are really skyrocketing. And I think people in their, in their, you know, desperation, I guess, to try to find ways to stay in Canada and remain here, are turning to these options. Now. In the last episode, Igor and I covered the humanitarian and compassionate process, which, once again, there's a time and a place for it. Alicia, but when it comes to refugee claims, what people don't understand is the consequences, or when you should not be considering making a claim for refugee status. And so hopefully, in this episode, people are going to be educated. They're going to understand, you know, the what it you know, what would make you ineligible, the legal test for claiming refugee status and and basically, when you do make a refugee claim, what are the consequences? And you know, not only for if it's approved or rejected, but what impact does it have on you pursuing other options, both in Canada and internationally. So we're going to start off here. We've got a list of things that we're going to be covering. We're going to start off with just a little bit of an introduction. Maybe Alicia can just talk a little bit about the current climate, if someone is just listening to our this, this episode, you know what's driving this time's up, series that we're doing, and how the refugee process fits into the mix, and then we'll continue forward.
Alicia Backman-Beharry 3:54
And you know, refugee landmark is so complex, and it is almost an entire body of law unto itself, and so this podcast and this article are simply just like barely scratching the surface in terms of what is happening with refugee law, but I wanted to give at least a little tiny tidbit. There's a lot of information out there about how to make a claim and what the procedure is, but not a lot of practically what is going to be affected when somebody goes and makes a refugee claim. So what happens when they walk in and they first start to make that claim, and then who's eligible, who's not eligible? Right? You might be right out the door done, and that claim cannot proceed to a hearing, and people should understand that, because they shouldn't be making a claim if they're ineligible. And then the next thing is, if you are going to be making that claim, there's a really stringent test, and there's a lot of evidence that's required, then you've got to back that up. So right now, we know that there are many 1000s of temporary residents in Canada who. Who are going to be having their permits expiring, whether that's a study permit or a visitor record or a visitor visa, or maybe they've been working here, they went to school here, they did their post grad work permit, and it's really, really difficult to transition to permanent residents right now. I don't know about you, but I've been having a lot of consults with people who are looking to see, will they be eligible under Express Entry. Do they have enough points? Are there spots under PNPs? And it is super, super, super competitive right now, and we know, because of the levels plan, it is only going to get more competitive for 2025 so this is kind of setting the stage of where we're at right now. And just like you said, Mark, some people might be getting desperate, and they might say, well, maybe I'll just make a refugee claim. And this is not something to be undertaken lately. Absolutely.
Mark Holthe 5:45
Let's start Alicia with this whole area of ineligibility, because some people you can't even make it. You're ineligible.
Alicia Backman-Beharry 5:53
That's right. And so I guess one of the things that people don't realize is that the basic principle is that when you come to Canada, you either have to have had electronic Travel Authorization, if you're visa exempt, or you have to have a visa to come here. And you're either coming here as a worker, a visitor or a student generally. And what normally happens is there are different types of refugee claims. There are claims from outside Canada, and there are claims from inside Canada, if somebody happens to come inside Canada and they have a valid visa, and they've come in as a visitor or tourist, and all of a sudden they turn around and they say, Well, wait a minute, I want to make a refugee claim. The first thing that will happen is that their passport will be taken away, and they will be given a removal order that is stayed or conditional until the end of their refugee process. So it is important for people to understand, as soon as they make a refugee claim, they lose their passport and they get automatically a removal order that normally doesn't take effect until the end of their claim. So some people, though, as soon as they make a refugee claim, the first thing that has to happen is a determination of eligibility. And so within a fairly short period of time, an officer will determine is this claim eligible to proceed forward. And there are a few circumstances where it simply is not. And so I wrote a brief blog article. It's on our website, and you can take a look. But if anybody has made a previous refugee claim or a claim for asylum, some countries call it asylum rather than refugee claims. But if they've made another claim, either in Canada or any other country, and it has actually been recognized, they've been recognized as a refugee, they are not eligible to make another claim. So you can't make multiple claims. There is a general principle against forum shopping, and Canada will not allow duplicated refugee claims. So if you've been found to be a refugee in any other country or in Canada, even a long time ago, you're ineligible same thing on previous negative determination. So if somebody had previously made a claim, and this is important to go back and talk to your parents, because sometimes people don't realize that their parents came and included them as a child in an application, and for some reason, that previous claim was rejected or abandoned or withdrawn, they can no longer submit a new refugee claim, even If there's a significant change in circumstances, and same thing for other countries, if they have a previous negative claim, this could affect what's going on with the process in Canada. So sometimes there is a possibility for what's called a pre removal risk assessment. That gets pretty complicated, but just know that if you've been previously refused, abandoned or withdrawn in Canada claim that's a no go. The next big one. This is coming up often, and probably will be in the news further, because there have been some tragic cases where people have been trying illegally to cross the borders. And so one of the things that Canada and the US has done, and this has been implemented a number of years ago, and they've kept tightening it up. Is the Safe Third Country Agreement. And so in general, if anybody is coming from the US to Canada, they can't turn around and make a refugee claim in Canada. They're ineligible. They would have had to make that claim in the US and vice versa. So it works both ways. There are very specific exemptions. It gets extremely technical. I put the section from the immigration refugee protection regulations there, but there are very few exceptions to the safe country agreement, especially now the the other main ground of ineligibility for a refugee claim is that that if somebody has serious security or criminality, risks to Canada. So if they pose a danger to the security of Canada, if they've violated human or international rights, if they've committed serious war crimes or crimes against humanity or organized crimes, those are reasons for ineligibility for the claim to proceed as well. So. So these are things where you could make a claim, but it's not going to be referred. You're going to have the whole process stopped right away. So this is something where your refugee claim will not go to a hearing.
Mark Holthe 10:13
All right, let's shift to the actual legal test now for refugee protection.
Alicia Backman-Beharry 10:17
Yeah, and again, there are entire books written on this subject, and so this is the barest of overviews. But in Canada, there are two different categories of refugee protection, and it's set out in Section 95 one of them is for a person in need of protection. So that's under Section 97 so you can either be a person in need of protection or a convention refugee. Either of them will have you recognized for refugee protection in Canada, the first one is fairly complex. It's section 97 it is the legal test for a person in need of protection. I'm not going to dwell on it too much. People can go and take a look. They can read through section 97 of the immigration and refugee protection act, but it ties in many of the similar concepts to the convention refugee, which is under Section 96 and so just understanding that both of these are pathways to potentially being recognized as a refugee in Canada. So if you meet either a person in need of protection or the legal test for convention refugee, you could be recognized in Canada. The convention refugee definition is under Section 96 of the immigration refugee protection act, and it's really important that there are every single word in this definition needs to be unpacked, and there's so much so it's a person by reason of a well founded fear of persecution, for reasons of race, religion, nationality, membership in a particular social or political opinion, social group or political opinion, they have to be outside of their country of nationality and unable, by reason of their well founded fear or unwilling, to avail themselves of the protection of each of those countries. So this is one aspect of it, and then there is also an aspect is of if you have a stateless applicant. So all of this our domestic law is tied to international law, and this stems from the 1951 UN convention relating to the Status of Refugees. Canada, of course, is a signatory to that convention. And there are entire reams of international and national case law that kind of break down a whole bunch of nuances in each of these, but in general, it is really important for people to understand that they have to have a well founded fear of persecution. This is something that is a serious risk of harm to them and their well being, and it has to be a genuine fear that they feel subjectively, that is also objectively reasonable, supported by evidence, and some of the things that are going to erode that fear is a delay. And so let's say you happen to be a student in Canada, and you've done two years of studies, or four years of studies, and then you applied for a post grad work permit, and you've been working here for three years, and then you decide, oh, I'm going to make a refugee claim. Well, you've now probably delayed for five years in making that refugee claim, and that is a big deal. So that is something that's going to erode that well founded aspect of the fear of persecution. So there could be delay in leaving the country of persecution. There could be delay in making the claim once you're in Canada. And they're going to look at all sorts of things. So the immigration Refugee Board is going to be looking at your activities, your motivation, your credibility, events in the home country. And credibility is is really huge as well.
Mark Holthe 13:57
And just for those who are listening, credibility basically means whether or not they believe you're telling the truth. So if they feel like you fabricated a story, and this is one of the issues that we're running into with the with, yeah, with with representatives who are advising people to file these claims when they are in this kind of times up zone where work permits are expiring, they've exhausted all avenues. And they say, well, file a refugee claim, you can get this open work permit, and we're going to get into the consequences of doing that, but, but this goes right to the heart this well founded fear of persecution. This is a critical component to filing these claims and and like Alicia said, when there is a significant delay, you've gone to school here, you've worked here, you've exhausted it, you've maybe applied to extend your work permit, and then all of a sudden you file a refugee claim. That is going to be a very, very steep hill to climb, and you do not want to get into a situation where you're filing a fraudulent claim, which we'll, we'll talk about,
Alicia Backman-Beharry 14:55
and that's a really good point mark. Be very, very careful, because, of course, people here through the community. The Oh, I know somebody who made a claim and it was successful, and it seemed easy, and here's what they said. And then if you get somebody who's unscrupulous and say, oh, and who says, Well, I've, I've helped put together these basis of claim documents and these stories, and, you know, we'll just kind of update it and recycle it, and you can use exactly that same one. You know you're walking into a world of danger there, so be very careful if you're looking at making a refugee claim. And can you actually establish a well founded fear of persecution? Yes. So the next one is nexus to protected grounds, and not just everyone can make a claim for refugee protection. And so just because your country of nationality is falling apart, it has significant economic issues, there's unrest that is not enough to make a refugee claim. There needs to be actually persecution against you that is because of and link to your race, your religion, your nationality, membership in a particular social group. And when we talk about membership in a particular social group, it's groups defined by unchangeable characteristics, groups whose members associate for fundamental human dignity, groups associated by a former voluntary status that's unalterable due to its historical permanence. So some examples are LGBTQ plus individuals victims of domestic violence. There's a few different kind of recognized particular social groups in the law. And then the last one is political opinion. And so keep in mind that you've got to tie that subjective, well founded, objective, well founded fear of persecution to one of these grounds, and it has to be linked. And then the next thing is really understanding that most of the time under international law, states are presumed to be able to protect their citizens. That's just how it works. And so if you're making a refugee claim, you have a high evidentiary standard of being of having to be able to show that there's clear and convincing evidence your state is unwilling or unable to protect you, and most of the time, you've actually had to seek state protection. And so sometimes people I used to do more refugee work, but I've moved away from it in the last few years, towards more economic work. But a lot of people would say, Well, if I have to try to go to the police in my home country, they may have been potentially involved. There may have been bribery. It would have been unsafe for me to do so, and if so, if that's the case, in order to rebut that presumption that states are able to protect their citizens, you would have to show that it's reasonable in all the circumstances for you not to have gone to the police or not to have filed a legal complaint. Or there's different kind of ways within countries that you could try to address agents of persecution, depending on who those agents of persecution were, but know that generally, states are presumed to be able to protect you, and so you, you have this requirement to try to rebut that presumption. And then the next one is the internal flight alternative. And this is something that the minister actually has to raise. And so for for fairness principles, they have to say, Well, wait a minute. As soon as that claim is started, we think that you could have had an internal flight, alternative, meaning, yeah, you've got a country where you're claiming persecution, but it's a big country, and maybe within that country, you could have moved to a different state or a different town or region or municipality, and maybe you would have been okay. And so if the minister raises that as a concept, then the claimant then has to show, well, I would not have been okay. It would not have been reasonable for me to try to move within my country in order to go to that internal flight alternative, and I still would have had some sort of risk against me. So that's what's going on with that internal flight alternative. And then lastly, there are exclusion clauses under Article 1e and article 1f and these are fairly technical, but Article 1e is if you've got residency, or the ability to have residency in a country that recognizes you, and basically you're kind of treated like a national would be of that country, and you have the ability to go there. And the other one is crimes against peace, war crimes, crimes against humanity, serious non political crimes or acts contrary to the principles of the UN and so those are exclusion clauses where somebody is not able to actually meet the test of a convention refugee. So these are all things that are important to know.
Mark Holthe 19:44
All right, thanks for that, Alicia. Let's take a look at the ineligibility versus failing the test. So there are some key differences between the two, and I think it makes sense for us to chat about that just a little bit, and then we can get into some of the more. Really pressing issues, which are the consequences of making a claim that you know that isn't accepted, and how it can limit options in the future.
Alicia Backman-Beharry 20:09
And so, just to recap, certain things will make you ineligible to have your claim proceed forward to the Immigration and Refugee Board. And those are the things that we talked about in the first place, right if you've made a prior positive claim, or if you had a prior claim that was rejected or abandoned and or withdrawn. So those are things where your claim will not even proceed. There are, just like we talked about, a whole bunch of tests and evidence that you need to meet if you do have your claim proceed. And it's important for people to know that they have a high evidentiary requirement, and they do always have to show that they're credible in making that claim. And so if you do make a claim and it proceeds, it's possible that your claim will not be accepted. It might get refused, and in certain circumstances, there are appeal rights to the refugee appeal division. But if that claim is refused, then now you're in a situation where, usually, if you've exhausted your legal options, that conditional or that stayed, removal order takes effect, and now you are able to be removed from Canada.
Mark Holthe 21:17
All right, let's jump now to some of these, I guess, lesser known consequence that people don't think about. We know, yes, the refugee claim, if it's rejected, individuals are going to have to leave the country. But let's talk about some of these economic immigration restrictions that occur the moment you make that refugee claim.
Alicia Backman-Beharry 21:40
And this, this is hard to find online. I was trying to find some easy synopsis from IRCC, and it's not really out there very well. And so I wanted to really highlight this, because, as I said, when you start that refugee claim, they will take your passport and you're given that stayed removal order. So what happens is, most of the time, then people will apply for or be issued a refugee study permit or a refugee work permit. At the bottom of that document, it will say, this document does not confer temporary resident status, and that is really important. Most people don't understand what that means, but it means that even though immigration has given you a work permit or a study permit because you made a refugee claim, that doesn't give you status in Canada. And so there are many economic immigration permanent resident pathways, including CEC, under Express Entry, where you are not eligible to claim work experience unless you had valid temporary status. And so anybody who makes a refugee claim and says, Oh, well, I'm just going to work for a year under my refugee work permit, and then turn around and make an Express Entry application under CEC, no way. You're not allowed, because that is not considered to be part of that high skilled Canadian work experience because you did not have valid temporary resident status. So that is something important to keep in mind. The other main thing is, a lot of people may think, Well, I'm just going to apply for a Provincial Nominee pathway. There's many of them. Different provinces have lots of different variations of them, but almost all of them, I can't think of a single one that's that will allow refugee claimants unless you've already been recognized as a refugee under the empp, but that's a totally different thing. If you have made a refugee claim again, you don't have valid temporary resident status, and that is one of the requirements for almost all of the Provincial Nominee pathways.
Mark Holthe 23:39
All right, let's talk about what we've hinted at all through this episode, the risks of making an unfound claim. And these are often things, yes, some are really apparent, but others are not as they just they're not things that people think about when they're trying to decide whether or not to proceed forward.
Alicia Backman-Beharry 24:01
And of course, the big one is removal from Canada, right? So as soon as you have a removal order, there are different types of removal orders, but if that removal order is affected and you are deported from Canada, then what generally comes along with that automatically is the requirement for you to obtain special authorization to return, which is an arc, or it used to be ministers permit in order to come back to Canada. So basically, you are forever barred from coming back to Canada unless you get this, this arc, this authorization to return to Canada. And it is fairly difficult to obtain that, that arc. And so if you are removed and you have that requirement for an authorization to return to Canada, it is very, very difficult to try to get that ever in the future. And the other thing is, and we talked about this a little bit mark when we did kind of our times up overview series, is once you have. Negative determination on your record, Canada shares certain types of information with other countries, and once you have an abandoned or withdrawn claim, or you have been removed from Canada, that will appear on your kind of international record, and other countries will see that it will be very, very difficult for you to get a visitor visa or a work visa, or try to apply for permanent residency in another country, as soon as they look and they see that you have a claim that was refused and you were deported from Canada. So that's something that can follow you for quite a long time, if you're if you've made a claim that was not well founded, you have a credibility mark against you. You've got a block mark against you on your immigration record. And sometimes what happens is that people will start a refugee claim, and then they will, you know, maybe six months into that refugee claim process, they meet a Canadian and then they decide to get married, and then the Canadian says, oh, I want to sponsor my spouse. And the person who made the refugee claim says, Well, maybe I'll just abandon or, or, you know, not follow up on my refugee claim, and I'll just have my Canadian sponsor sponsor, me and again, going back to this whole aspect that they are not a temporary resident, technically, they should not be included in this post or common law partner class. There is kind of a policy exemption to say, well, you know, if it's a genuine marriage, then we might allow that sponsorship to continue anyways. But if you look at this, the optics are really bad, because somebody's come in they didn't abide by the conditions of their visa, they turned around and made a refugee claim, which is a claim for permanent residence when they didn't have the proper permanent resident visa to come here in the first place, and then they abandoned or they just kind of don't follow up on their refugee claim, and they turn around marry a Canadian. Well, almost every single IRCC officer is going to be highly suspicious of whether that's a well founded or a genuine bona fide marriage, or was that marriage entered into primarily for the purposes of obtaining an immigration privilege. And so there is going to be a high bar to try to overcome in terms of credibility and the genuineness of that marriage if you do try to file a spousal Yeah.
Mark Holthe 27:32
And as we've seen, you know, this last one impact on genuine refugees, the reality is, there's also a, you know, a more trying to find the right word. You know, this puts tremendous strain on Canada's refugee system when everybody are making bogus claims. And this is part of the reason that the minister kind of lashed back a little bit at those who are supporting international students in particular in filing these claims, because then it bogs down the system, and it makes it really hard for them to make, you know, prompt time sensitive decisions for genuine refugees who who do urgently need protection. And so there's a little bit of a social, you know, just social well being aspect to this, when it comes to genuine refugees who are, who are needing, you know, decisions, and understand that often they'll come and they they will have family back, you know, and wherever they have left them that are also included in the applications and everything is delayed, and the reunification of those families, because there's all these bogus claims that are going through the system. So these are all factors that I think people need to take into consideration that that are really impacting what is happening, you know, as time is running out for people,
Alicia Backman-Beharry 28:51
all right, and, and, yeah, to sum up, I mean, I I don't want to be anywhere near trying to say that people are Making bogus claims or accusing people of doing that, but because, you know, I've worked with a number of people who've made refugee claims over the years, and it's these are some of the worst things I've ever heard in my entire life. Like there are stories you cannot on here, and people are really suffering out there, and just to understand the amount of courage and how bad things have to be to leave everything behind and flee to another country and try to make a refugee claim like I have enormous compassion for people in that situation. So in no way are we trying to belittle this or say that claims are bogus, but we are saying, you know, if you are hearing from somebody, oh, just make a refugee claim that'll fix all your problems. This is where we really want people to understand some people are ineligible, and there is a huge legal test that. You need to meet, and there are consequences. You close your doors for economic PR options in many circumstances. So just make sure that you are getting the assistance of somebody who practices refugee law and who understands what they're doing. It has to be a lawyer if you are going to these hearings. So just make sure that you are properly consulting with somebody who knows and has practiced in this area for a long time,
Mark Holthe 30:26
you bet. Well, thanks a lot. Alicia, I'm just going to remind everyone, if you go to Holthe law.com you'll see that we have a blog section, and this is the latest blog in our time's up series, a series of episodes that all are directed to individuals who are stuck in the situation where time is running out and their work permits are expiring and they're trying to explore options. What's next is there a possibility for me to stay definitely go through and if you haven't listened to those other episodes, do it. Watch it here. If you're watching on YouTube or wherever you're you, you catch these live video feeds that we do, Alicia and I, but definitely check out this episode. Sorry, this podcast, post that Alicia did, which is the foundation of this recording, when not to claim refugee status, knowledge is power, and then you can make good decisions. If you understand the test to meet, you can make a decision yourself. Well, do I really meet? This is what this representative telling me, you know, does it make sense if they're obviously telling you to lie well and make up a fake story? Well, you don't need us to tell you that that's wrong. But understand, even if you choose to do that and think, Well, I'm willing to do anything, the consequences that will flow to you, you're just delaying the inevitable, and in all honesty, You're making your situation worse. So please, please be aware of that.
Alicia Backman-Beharry 31:43
Yeah, Mark, I'll just jump in. And I just realized, I think it has to be a lawyer, but it is possible for certain people to be represented by family members, as long as you know they have some there's specific provisions where you have minors, and there's designated representatives, and there's other provisions where you could have somebody who's authorized under the Act to provide legal advice and representation in terms of the IRB, but understand that it's really important that you choose the right representative and make sure that they are authorized to actually go give you advice and then represent you. If you go that way,
Mark Holthe 32:18
you bet. And I want to give a shout out to the Canadian Immigration Institute, which is the sponsor of this series. And those of you who are wondering what this is all about, we have a number of courses that we have released and are releasing. The flagship is our Express Entry accelerator. And we also have our brand new Canada temporary resident visa course. So stay tuned. Those are some wonderful options if you're looking at applying on your own, DIY options. And, of course, anything you need for assistance, if you just need to book a consultation, you can easily do that on our firm website. All right, thanks for joining me, Alicia, and thank you all for being a part of this time's up series. When not to claim refugee status in Canada, take care.
Sponsor 33:03
Thank you for listening to the Canadian immigration podcast. Your trusted source for information on Canadian immigration law, policy and practice. If you would like to book a legal consultation, please visit www dot Holthe law.com you can also find lots more helpful information on our Canadian immigration Institute YouTube channel, where you can join mark on one of his many Canadian immigration live Q and A's. See you soon, and all the best as you navigate this crazy world we call Canadian immigration. You.
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