Processing in-Canada claims for refugee protection: Withdrawals and Suspensions
This section contains policy, procedures and guidance used by IRCC staff. It is posted on the department’s website as a courtesy to stakeholders.
Procedures: Withdrawal of a refugee claim
At any point prior to the referral of a claim to the Refugee Protection Division (RPD), or the determination that the claim is not eligible for referral, the client may indicate that they no longer wish to pursue the claim. Such a discontinuation is not considered a withdrawal for the purposes of paragraph A101(1)(c) of IRPA. This means that if the person concerned makes a refugee claim at a later date, it cannot be determined ineligible under A101(1)(c).
Procedures for withdrawal
- If a claimant requests a withdrawal before referral to the Refugee Protection Division
- A refugee claim at a later date would not be found ineligible under A101(1)(c).
- Complete form IMM 5317B, “Withdrawal of a Claim for Refugee Protection prior to Referral to the RPD”;
- Explain the contents of the form and ensure person understands the statement and that the refugee claim will not be heard and they will have to leave Canada;
- Attach a photo and seal with a port stamp;
- Give claimant a copy; and
- In the RR screen of FOSS, enter ‘3 – withdrawn’ in the ‘otherwise concluded reason’ field.
- Note: If the person still wants to enter Canada, admissibility of the person must be assessed.
- If the person is at a POE and is not seeking to enter Canada, the officer may allow the person to leave as per R42(1).
- When a removal order is made (whether at a port of entry or inland), it comes into force as per A49(1).
- If the person is in status, they may remain in Canada until that status expires.
- If a claimant requests withdrawal after claim found ineligible
- If a Claimant requests withdrawal after referral to the Refugee Protection Division
- the claimant should inform the RPD, either in writing or orally at a proceeding of the RPD;
- Any future claims would be ineligible 101(1)(c), including when a withdrawal is communicated to the IRB through an intermediary e.g. CBSA officer.
Note: A person whose claim is considered withdrawn by the RPD may apply to the RPD to have their claim reinstated.
Procedures – Refugee Claim Suspension
Subsection 100(2)(a) of the IRPA calls for suspension of refugee claim proceedings in certain circumstances.
For all cases involving extradition, the regional justice liaison officer (JLO) of CIC or CBSA must be contacted.
Suspension if proceeding under the Extradition Act
In the case of a claimant facing extradition for an offence that is equivalent to an offence under Canadian law that is punishable under an Act of Parliament by a maximum term of imprisonment of at least 10 years, section A105(1) of the IRPA requires that the RPD suspend proceedings until a final decision under the Extradition Act has been made.
Continuation if discharged under the Extradition Act
According to A105(2), if the claimant is not extradited the hearing of the refugee claim may continue.
Rejection if under the Extradition Act
Under A105 (3), if the person is ordered extradited and the offence is punishable under an Act of Parliament by a maximum prison term of at least 10 years, the order of extradition is deemed to be a rejection of the refugee claim.
As per 105 (4), the rejection of a claim referred to in A105(3) may not be appealed, and is not subject to judicial review except to the extent that a judicial review of the order of surrender is provided for under the Extradition Act.
When suspension is necessary
When an A44 report is referred to the Immigration Division for an admissibility hearing, and the inadmissibility would render the refugee claim ineligible, suspend consideration of eligibility of the claim.
If the claim has been referred to the Refugee Protection Division, notify the Refugee Protection Division so that it may suspend consideration of the claim.
Suspension of eligibility consideration before the claim is referred to the Refugee Protection Division
If it is determined within the three working-day-period that suspension is necessary, do the following:
- enter the “suspension” action in the Record of Refugee Claim (RR) screen of FOSS to ensure that the claim does not become deemed referred to the RPD
- complete the Eligibility Results and Referral (ER) screen, entering the Decision as “suspended”;
- Notify the claimant in writing of the suspension and enter an NCB (general remark) in FOSS, or a note in GCMS, that the claimant is not eligible for a work or study permit.
There is no need to notify the Refugee Protection Division of the decision to suspend eligibility consideration because at this stage, the Refugee Protection Division is not aware that the refugee claim exists.
Resumption of the eligibility consideration process (for cases that were suspended before the claim was referred to the Refugee Protection Division)
Once the Immigration Division has made an admissibility determination, or the court has reached its verdict (and no appeal is pending), the officer must resume consideration of eligibility.
It may be necessary to request that the claimant appear in order to complete the eligibility and examination process.
To finalize processing, complete the Eligibility Results (ER) screen in FOSS, and follow the procedures outlined in Finalizing the Case.
Suspension of the claim after it has been referred to the Refugee Protection Division
A103(1)(a) provides for suspension of a refugee claim after it has been referred to the Refugee Protection Division. Suspension is invoked on the same grounds and with the same considerations as above. The key difference is that the officer must notify the Refugee Protection Division of the situation so that they may suspend their consideration of the claim.
If it is determined, after the claim has been referred to the Refugee Protection Division, that suspension is necessary, do the following:
- complete the BSF528 (Notification to the Refugee Protection Division and the Person Concerned by an Immigration Officer Pursuant to Subsection 103(1) of the Immigration and
- Refugee Protection Act of the Suspension of Consideration of Claim’ Pursuant to Subsection 103(2) of the Immigration and Refugee Protection Act)
- provide the claimant and Refugee Protection Division with a copy of the BSF528, and place a copy on file;
- complete the “Notification to Refugee Protection Division to Suspend” (NS) screen in FOSS.
Resumption of Refugee Protection Division (RPD) proceedings (for cases that were suspended after the claim was referred to the RPD)
Upon learning the outcome of the admissibility hearing or trial, the officer must decide whether redetermination of eligibility is warranted, and notify the Refugee Protection Division of the decision so that the Refugee Protection Division may either resume or terminate its proceedings. This is done by entering the eligibility decision in the ’Notification to RPD – Subsequent Eligibility Decision/Re-determination of Eligibility’ (SE) screen of FOSS.
Notify the claimant, in writing, of the decision.
Procedures: Redetermination of eligibility
With respect to a refugee claim that was determined to be eligible, an officer may come across information that leads them to conclude that:
- The claim should not have been determined eligible; or
- The claim is no longer eligible.
In such cases, a redetermination of eligibility should be done, further to A104. The following table explains the consequences of a redetermination:
- Claim is before the Refugee Protection Division (RPD) and:
- is ineligible for any of the grounds in A101(1); or
- was referred to the RPD as a result of misrepresentation or withholding material facts relevant to the claim and claim was not otherwise eligible for referral
- RPD will stop hearing the claim
- Claim is before the RPD or the Refugee Appeal Division (RAD) and:
- claimant previously made a refugee claim; or
- claim is ineligible under A101(c.1)
- RPD or RAD will stop hearing the claim
- RPD or RAD decision has already been made on the claim and the claimant had previously made a refugee claim
- The RPD or RAD decision on the first claim is considered valid. Other decisions are nullified.
Procedures for redetermination
When ineligibility is very clear it may not be necessary to provide the claimant with a further opportunity to respond to evidence about which they were aware. Therefore the eligibility decision may be re-determined and the client notified of the decision. Examples of situations in which an opportunity to respond is not normally required are explained in this table:
|Reason for ineligibility||Notes|
|The claimant is inadmissible due to serious criminality [and meets the conditions of A101(2)], and as a result the claim is ineligible under A101(1)(f).||The sample letter outlines documentation that should accompany the letter.|
|The claimant has a previous Refugee Protection Division decision (positive [A101(1)(a)], negative, abandoned or withdrawn [A101(1)(b)]) or a previous ineligibility determination [A101 (1) (c)]).||Include a copy of the Refugee Protection Division decision or confirmation from RCMP fingerprint matches.|
|The claimant is inadmissible for reasons of security, organized criminality or human/international rights violations.|
Opportunity to respond
When there is evidence of misrepresentation or ineligibility that was not considered at the time of the initial eligibility determination, but the evidence is not conclusive, the claimant should be interviewed and given an opportunity to respond to the evidence.
When re-determining eligibility do the following:
- send a letter to the claimant with relevant evidence advising that the eligibility decision may be or has been re-determined and if applicable, advise of a date to report for an interview;
- hold the interview, if applicable;
- make a decision based on evidence and submissions;
- enter the redetermination decision, date and reason in GCMS;
- complete, copy and distribute to the claimant and file, the Refugee Protection Division and the BSF529 (PDF, 1.71MB) form (Notification to the Person Concerned by an Immigration Officer Pursuant to Paragraph 104(1) (a), (a.1), (b), (c), or (d).)
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