CANADA

If you are considering a refugee or humanitarian application in Canada, the first thing you need to understand is that these are two different immigration processes with different legal requirements. A refugee protection claim is based on the danger or persecution you would face if you returned to your country, while a Humanitarian and Compassionate (H&C) application is a request for permanent residence based on exceptional circumstances and the need for an exemption from certain immigration requirements. They should not be treated as interchangeable applications.

1. What Is a Refugee Protection Claim?

A refugee protection claim is for a person who cannot safely return to their country because they meet Canada’s definition of a Convention refugee or a person in need of protection. A Convention refugee must have a well-founded fear of persecution connected to a protected ground such as race, religion, nationality, political opinion or membership in a particular social group. A person in need of protection must establish that returning to their country would personally expose them to a danger of torture, a risk to their life or a risk of cruel and unusual treatment or punishment.

2. What Is a Humanitarian and Compassionate Application?

A Humanitarian and Compassionate application is different from a refugee claim. Under the H&C process, a person who is in Canada can ask for permanent residence based on humanitarian and compassionate considerations and request an exemption from certain requirements of the Immigration and Refugee Protection Act or Regulations. IRCC states that this option is intended for people who are in Canada, need an exemption to apply for permanent residence from within Canada, believe their circumstances justify that exemption and are not eligible to apply from within Canada through certain listed immigration classes.

3. Refugee Protection Is About Risk of Return

The central issue in a refugee claim is what could happen to you if you were returned to your country. The Refugee Protection Division looks at whether you meet the legal definition of a Convention refugee or a person in need of protection. The claim therefore needs to establish the circumstances creating the risk and why the person requires protection from Canada.

A refugee claim is not simply a way to remain in Canada because life in another country would be better. The legal test is connected to persecution or the specific forms of serious danger recognized under Canada’s refugee protection framework.

4. Who Decides a Refugee Claim?

The Immigration and Refugee Board of Canada (IRB) is the independent tribunal responsible for deciding refugee protection claims through its Refugee Protection Division (RPD). Before the RPD considers the claim, an officer from IRCC or the Canada Border Services Agency determines whether the claim is eligible to be referred to the RPD. If it is eligible, the claim is referred to the RPD, which then decides whether refugee protection should be granted.

5. How Can You Make a Refugee Claim?

A person can make a refugee protection claim when arriving in Canada at a port of entry, such as an airport, land border or seaport. A person who is already in Canada can also make an inland refugee claim through the applicable IRCC process. The initial officer determines whether the claim is eligible to be referred to the Refugee Protection Division.

The process is therefore not simply an application submitted to an immigration office with a final decision immediately issued. There is an eligibility stage followed by the refugee determination process before the RPD when the claim is referred.

6. The Basis of Claim Form Is Extremely Important

The Basis of Claim (BOC) form is where a refugee claimant explains who they are, what happened to them and why they are seeking protection in Canada. The information in the BOC is an important part of the refugee claim and needs to be complete, truthful and correct.

The IRB requires claimants to provide their BOC within the applicable deadline. Current IRB instructions state that for claims made at a port of entry, the BOC must be sent directly to the RPD within 45 days after the claim is referred. For inland claims, the BOC is submitted as part of the applicable claim process.

7. Evidence and Supporting Documents Matter

A refugee claimant is responsible for obtaining and providing documents that support the protection claim. These can be important because the RPD needs evidence to assess the circumstances described by the claimant.

The evidence should support the facts and circumstances that form the basis of the claim. The IRB specifically states that claimants are responsible for providing documents that may support their protection claim.

8. Truth and Consistency Are Important

Information provided during the refugee process needs to be truthful and complete. The BOC, documents, statements and evidence form part of the overall claim, so inconsistencies can become an important issue when the claim is assessed.

The claimant has a responsibility to answer questions truthfully and provide complete information. The IRB also emphasizes the importance of keeping information and contact details up to date throughout the process.

9. What Happens at the Refugee Hearing?

Once the claim is referred to the Refugee Protection Division, the claimant receives information about the hearing. At the hearing, an RPD member considers the claim and the evidence before making a decision.

The claimant needs to be prepared to explain the circumstances of the claim and answer questions about the information provided. The IRB’s current refugee process describes the hearing as one of the central stages of the refugee determination process.

10. What Happens If a Refugee Claim Is Abandoned?

A refugee claim can be declared abandoned if the claimant does not complete required steps. For example, failing to submit the required BOC on time, failing to attend the hearing or failing to keep contact information updated can create serious procedural problems.

The IRB explains that an abandoned claim is not simply an application that remains open indefinitely. There is an abandonment process, and the claimant may be required to attend a special hearing to explain why required steps were not completed.

11. Who May Qualify as a Convention Refugee?

A Convention refugee is someone who has a well-founded fear of persecution because of race, religion, nationality, political opinion or membership in a particular social group.

The concept of a particular social group can cover specific circumstances recognized under Canadian refugee law. The IRB gives examples including characteristics such as gender or sexual orientation. However, every claim must be assessed according to its own facts and the applicable legal requirements.

12. Who Is a Person in Need of Protection?

A person may qualify for refugee protection under the separate category of a person in need of protection if returning to their country would personally expose them to a danger of torture, a risk to their life or a risk of cruel and unusual treatment or punishment.

This is distinct from the Convention refugee definition. The claimant still needs to establish the circumstances and risk that meet the applicable legal test.

13. What Is Different About an H&C Application?

An H&C application does not use the same legal test as a refugee protection claim. The H&C process considers whether humanitarian and compassionate considerations justify granting the requested exemption and allowing permanent residence from within Canada.

IRCC explains that an H&C application is intended for people in Canada who need an exemption from one or more requirements of the Act or Regulations and who are not eligible to apply for permanent residence from within Canada through the specified immigration classes.

14. H&C Is Not a Replacement for a Refugee Claim

A person should not choose an H&C application simply because they do not want to make a refugee claim. The two processes exist for different circumstances.

A refugee claim focuses on protection from persecution or serious danger in the country of return. An H&C application focuses on whether humanitarian and compassionate considerations justify the requested immigration exemption. The appropriate pathway therefore depends on the actual circumstances of the person and the legal requirements of the relevant process.

15. What Factors Can Matter in an H&C Case?

H&C cases are based on the individual circumstances of the applicant. The purpose is to ask for an exemption where humanitarian and compassionate considerations justify it.

The assessment is therefore different from simply calculating points or meeting a standard economic immigration threshold. The applicant needs to explain why the circumstances justify the requested exemption and provide supporting information for the situation being presented.

16. Can Everyone in Canada Apply Through H&C?

No. IRCC sets specific conditions for using the H&C application. The applicant must be in Canada, need an exemption from one or more requirements in order to apply for permanent residence from within Canada, believe that their circumstances justify humanitarian and compassionate consideration, and not be eligible to apply from within Canada through the immigration classes listed by IRCC for this process.

This means H&C should not be treated as a general alternative PR program available to anyone who wants to remain in Canada.

17. Refugee and H&C Applications Require a Strong Factual Record

Whether you are dealing with a refugee claim or an H&C application, the information presented needs to accurately explain your circumstances and be supported by appropriate evidence.

For refugee protection, the evidence needs to help establish the basis of the protection claim. For H&C, the application needs to explain the humanitarian and compassionate circumstances and the exemption being requested. The two applications therefore require different types of legal reasoning and supporting information.

18. Get Professional Help for a Complex Case

Refugee and H&C matters can involve significant legal and procedural issues. The IRB itself encourages refugee claimants to get professional help with the Basis of Claim form, and claimants have the right to be represented by counsel at their own expense.

Because every case depends on its specific facts, the appropriate application should be determined after reviewing the person’s circumstances, immigration history, documents and the legal requirements of the available pathway.

Final Takeaway

A refugee protection claim and a Humanitarian and Compassionate application should never be treated as the same thing. Refugee protection is based on meeting Canada’s legal definition of a Convention refugee or person in need of protection, while H&C is a permanent-residence mechanism for certain people in Canada who need an exemption and whose circumstances justify humanitarian and compassionate consideration.

The most important step is to understand which process actually applies to your circumstances before submitting anything. Refugee claims involve eligibility, the Basis of Claim form, evidence and a hearing before the Refugee Protection Division, while H&C applications follow a separate process under the Immigration and Refugee Protection Act.