Changes to Immigration and Refugee Law

On June 28, 2012, Bill C-31 the Protecting Canada’s Immigration System Act (Act) became law. As a result, there have been significant changes to refugee law in Canada. Part of the new changes includes the establishment of a new Refugee Appeal Division to hear appeals from some failed refugee claimants.

Basis of Claim (BOC) Form

Starting December 15, 2012, the Basis of Claim Form (BOC) will be the document that a refugee claimant must fill out for the Immigration and Refugee Board. The BOC form is very important and is used to determine if you have a valid claim. The BOC form will be the foundation of your entire refugee claim. The form requires you to give detailed answers to questions such as who you are, what you are afraid of in your country, and why you need refugee protection in Canada. The BOC form must be filled out as thoroughly and completely as possible. You must tell the truth on the form. The answers on the form must also match any documents and evidence you submit. Any differences between names, facts, dates, can be a problem and negatively affect your refugee claim. If information is missing, incorrect, or inconsistent, the Board could refuse your claim.

Each family member making a refugee claim will fill out his/her own BOC form. If there are any children under 18 years of age, they will also fill out their own form but a parent or guardian will have to sign the form for them. If a child under 18 makes a refugee claim on his/her own without a parent or guardian, a designated representative will be appointed to help the child to fill out the entire form.

The BOC form must be filled out in either English or French. If you have an interpreter assisting you with filling out the form, the interpreter must also sign the form. If there is no interpreter helping to fill out the BOC form, you must sign a statement on the form indicating that you understand the information on the form which was filled out in English or French.

Any documents included with the BOC form that is not in English or French must be translated into English or French.

If you have any problems or difficulties filling out the BOC form, you should make note of it on the form. You should also tell the person at your refugee interview about any problems or difficulties you ran into while filling out the BOC form. This way, your concerns will be at least written down and may help to explain information that was left out or unclear on the form.

The Refugee Protection Division (RPD) is a division within the Immigration and Refugee Board of Canada (IRB) that makes decisions on whether to accept a refugee claim.

You must notify the RPD if you make a mistake on the BOC form or you have further evidence or documents to submit. Any changes or additions must be made and submitted at least 10 days before your hearing.

The information on the form must also be consistent with your testimony at the refugee hearing. At the hearing, you will have to answer questions about what you said on the BOC form. A Board member who thinks that you have not told the truth – for example, by inventing harm or threats—will refuse your claim.

Because the BOC form is crucial to establishing your refugee case, it is strongly recommended that you obtain assistance from counsel, either a lawyer (someone in good standing with a provincial law society) or an immigration consultant (someone in good standing of the Immigration Consultants of Canada Regulatory Council), when filling out the form or representing you at the hearing. Due to the tight timeline of submitting a BOC form, you should seek legal assistance to fill out the form as soon as you receive one.

If you have no money to hire your own lawyer, you may be able to obtain legal aid from Legal Aid Ontario. For more information about legal aid, call: 416-979-1446 or 1-800-668-8258.

Where to Make a Refugee Claim

If you are a making a refugee claim from within Canada, you can go to the Citizenship and Immigration Canada (CIC) website and download the forms at: http://www.cic.gc.ca/english/refugees/inside/apply-how.asp.

You will be required to fill out several forms, including the BOC form. You can then bring the completed forms to a CIC office to make an inland claim. Once CIC checks that the forms are complete, they will schedule you an eligibility interview with an immigration officer. At the eligibility interview, if the immigration officer finds that you have an eligible refugee claim, you will be scheduled a date for a hearing before the Immigration and Refugee Board (IRB).

You can also make a refugee claim at a port of entry when you arrive in Canada, such as at an airport, seaport, or land border. You can make a refugee claim at a Canada Border Services Agency (CBSA) office to a CBSA officer. The CBSA officer will determine whether or not you have an eligible refugee claim. If you have an eligible claim, you will be scheduled a date for your IRB hearing. You will be given forms to complete, including the BOC form, which you have to submit to the IRB within 15 days of receiving the forms. If you do not submit the forms within the timeline, your claim could be deemed as abandoned.

Scheduling and Hearings

For most refugees, a hearing will be held no later than 60 days after your claim is referred to the IRB. There are however exceptions. The Minister of Immigration can
deem some countries to be safe, and the refugee claimants from these countries are subject to different and less favourable rules. For more information about the “Designated Countries of Origin”, please go to the CIC website page at: http://www.cic.gc.ca/english/refugees/reform-safe.asp.

If you require an interpreter on the day of your hearing, you can request one on the BOC form. The RPD will provide an interpreter for you at no cost.

Changes to the Refugee Appeal Division

After you receive a negative refugee decision in writing, you can appeal to the Refugee Appeal Division within 15 business days.

An appeal at the Refugee Appeal Division will usually be decided by one person, called a single member panel. In some cases, an appeal may be decided by three people, called a three-member panel. The members on all the panels will be independent adjudicators.

The appeal process will mostly be paper-based. This means that everything is done through written material. Oral hearings will be held very rarely. A refugee claim will only be sent back to the Refugee Protection Division for a new determination in very limited circumstances.

If you receive a negative decision from the Refugee Appeal Division, you may continue to seek leave to the Federal Court for judicial review of the decision.

The Minister may also file an appeal against a positive refugee decision. The Minister may also intervene in your refugee appeal, or submit evidence and write submissions against your refugee appeal.

After your appeal has been submitted to the Refugee Appeal Division, you should receive a decision within 90 days. The decision may take longer if you had an oral hearing. The Refugee Appeal Division cannot reopen an appeal for you if the Federal Court has already made a final decision on your case.

Not all decisions can be appealed to the Refugee Appeal Division. You cannot appeal to the Refugee Appeal Division if you are from a Designated Country of Origin (DCO), if you arrive as part of an irregular arrival and are deemed to be a Designated Foreign National (DFN), if you are under a Safe Third Country Agreement or Extradition Act, or it is a Pre-Removal Risk Assessment (PRRA) decision. You will also have no access to appeal to the Refugee Appeal Division if it was determined that you have a manifestly unfounded claim, or a claim with no basis.

Further information on the Immigration and Refugee Board of Canada and the Refugee Appeal Division can be found on the Immigration and Refugee Board of Canada website pages at:

http://www.irbcisr.gc.ca/ENG/TRIBUNAL/RADSAR/Pages/index.aspx and

http://www.irb-cisr.gc.ca/Eng/tribunal/rpdspr/ClaDem/Pages/ClaimGuideDem12.aspx#_Toc340245792