Can a refugee claimant who is not accepted make an H&C application?
Many unsuccessful refugee claimants can only make an H&C application after at least one year has passed from the date their refugee claim is finally:
- refused by the RPD, RAD, or Federal Court,
- abandoned, or
- withdrawn after evidence was presented at the hearing.</li?
This is often called the “one-year bar“. Many claimants will be forced to leave Canada within that one-year period.
But some people do not need to wait one year. They can make an H&C application right after their refugee claim is finally refused by the IRB. And they can also ask the Federal Court to judicially review their refused refugee claim at the same time.
Judicial review means asking the court to cancel the negative decision on the refugee claim and send the case back to the tribunal for a fresh decision.
These people can usually apply for an H&C right away if forcing them to leave Canada would:
- not be in the best interests of a child directly affected, or
- put the life of the applicant or one of their dependents at risk because they would not be able to get the health or medical care that they need in their country. This includes mental health treatment.
A child directly affected can include:
- the applicant’s own child, no matter where the child was born or where they live, whether in Canada or elsewhere.
- a child in Canada who is not the woman’s child but with whom she has a close relationship. For example, this could be a child that a woman looks after, such as her niece or grandchild, or a friend’s child.