CHOOSING BETWEEN MAKING A REFUGEE CLAIM OR AN H&C. Factors to consider and scenarios for discussion

Transcription

1 CHOOSING BETWEEN MAKING A REFUGEE CLAIM OR AN H&C Factors to consider and scenarios for discussion

2 Downtown Legal Services (DLS) Poverty law clinic associated with the University of Toronto Faculty of Law Areas: criminal law, family law, refugee law, tenant housing and university affairs

3 Overview Why do I have to choose? The basics of an H&C application The basics of a refugee claim Important differences between H&C applications and refugee claims Factors to consider when choosing between the two Withdrawing a refugee claim Hypothetical scenarios

4 Why Choose? New law: H&C application and refugee claim cannot be made at the same time 12 month bar: If refugee claim fails, cannot make an H&C application for at least 12 months Exceptions: You have children under 18 who would be adversely affected if you were removed from Canada, or You have proof that you or one of your dependants suffers from a life-threatening medical condition that cannot be treated in your home country If refugee claim fails, likely to be removed from Canada before being able to make an H&C application

5 H&C in a Nutshell An application for PR from inside Canada A request for an exemption from the rule Factors: Establishment Hardship

6 H&C in a Nutshell Examples of establishment: Family and friends in Canada Work School Community activities Examples of hardship War Natural disaster Lack of medical/mental health care No family or friends Domestic violence

7 H&C in a Nutshell Important distinction: risk and hardship CIC does not consider risk in an H&C application Express the risk as a type of hardship E.g. Domestic abuse. Officer cannot consider the risk she will face from the abuser. However, can emphasize that she will suffer hardship because there is no support or protection for abused women in her country.

8 Refugee Claims Convention refugee race, religion, political opinion, nationality, or membership in a particular group Persons in need of protection a personal risk of torture, risk to his life, or risk of cruel and unusual treatment or punishment Must also show: Lack of state protection Specific risk No internal flight alternatives (IFAs)

9 Questions or Comments? Lauren Pearce Kristin Marshall

10 Differences H&C Applications $550 per adult $150 per child under 22 Refugee Claims No cost No deadline If claim made in an office, must complete BOC during eligibility interview At a port of entry, 15 days after referral to IRB Processing time up to 36 months If from a DCO and made claim at an inland office: no later than 30 days If from a DCO and made claim at a port of entry: no later than 45 days If not from a DCO: no later than 60 days Decision could be made right at the end of the hearing or up to a few months after Can be removed while the application is pending Cannot be removed while the claim is pending The more time in Canada, the The less time in Canada before making

11 H&C vs. Refugee Claims Take into account all factors discussed: Based on her story, can she meet the definition of a convention refugee? If yes, is evidence (both country research and specific evidence of individual) available to support her claim? Which country is she from? If DCO, claim likely to fail. Current list: E.g. Mexico 82.9% rejection How long has she been in Canada? Are there children involved? Any health consideration? Evidence to support discrimination or hardship more than risk? Etc.

12 Examples Certain categories of people might be better off making an H&C: Domestic violence Sexual orientation related hardship/risk Generalized risk Lack of medical care

13 Withdrawal of a Claim Is it possible to withdraw a refugee claim and apply for H&C instead? Only if substantial evidence has not been heard No stay of removal

14 Hypothetical Scenarios H&C or Refugee Claim?

15 Scenario #1: H&C or Refugee? Ms. Cruz came to Canada from Peru in She came on a visitor s visa which expired and she has lived without status. Despite terrible domestic abuse in her past in Peru, she has thrived in Canada and has started her own business. Can she apply for H & C? Should she make a refugee claim?

16 Scenario #2: H&C or Refugee? Mr. Solarz came to Canada in December He is a Roma man and a father of four children. His wife died of cancer. He works as a cashier at a grocery store, and all of his children are in school. Before he came to Canada, he suffered serious racial discrimination in Hungary. His oldest son was bullied and beaten up by skinheads and police failed to investigate or do anything. He fears further incidents if they are sent back to Hungary. Should they apply for H&C or make a refugee claim?

17 Scenario #3: Withdrawing the Claim Maria and Jose recently came to Canada. Jose was a political activist in Colombia where he was arrested by the police a few times and targeted by paramilitary groups because of his activities. Maria became known as Jose s partner and was almost kidnapped twice. They made a refugee claim at the port of entry, and their hearing is in 30 days. They recently started having fights where Jose hit Maria. She decided to leave him and find a life for herself in Canada. However, there is a problem: Maria s refugee claim is dependent on Jose s, and she is not sure whether to continue with the refugee hearing. Should Maria withdraw her claim and apply for H&C instead?