What this application is, and what it is not
This is discretionary relief, not a category you qualify for. It is also the route most often "reached for at the wrong moment and on the wrong material, because it cannot be built on the risk that a refugee claim would have addressed.
Filing this does not stop a removal
Making the application has no effect on removal arrangements. Only a favourable decision creates a stay of removal. Anyone relying on a pending application to prevent a removal is relying on something that does not work that way, and people are removed in exactly that position.
If removal is imminent, the question is not whether this application is pending but whether a stay exists from some other source, and that is an urgent and separate piece of advice.
- Must for a person in Canada, may for a person outside it. The Act requires the Minister to examine the circumstances of an applicant in Canada on request, and permits it for an applicant abroad. Relief itself is discretionary in both cases.
- The best interests of a child directly affected are a mandatory consideration. Wherever a child is directly affected, and this also underpins one of the two exceptions to the twelve month bar.
- Risk cannot be recycled as hardship without being reframed. For an application made in Canada the Minister may not consider the factors that determine a refugee claim, and must consider hardship instead.
- Four inadmissibility grounds put you outside the provision entirely. Security, violating human or international rights, sanctions, and organised criminality. This is not a matter of discretion being exercised against you, it is the provision not applying.
- Nothing happens until the fees are paid. The Act provides that the Minister is seized of the request only once the applicable fees have been paid.
- The bars stop the request being examined rather than being made. The Act says the Minister may not examine the request where a bar applies. That distinction matters when a bar is about to lapse, because the timing question is about when examination can happen rather than when a form can be sent.
Every bar, and the two exceptions
| Bar | Effect |
|---|---|
| A pending request | You may not make another while one is pending. |
| A claim before the tribunal or the appeal division | You may not apply while a refugee claim is live there. |
| Ineligible claim with a protection application pending | Where a claim was found ineligible for referral and an application for protection to the Minister is pending. |
| The twelve month bar | Less than twelve months since a claim was rejected, abandoned, or determined withdrawn after substantive evidence was heard, measured from the latest of the tribunal, appeal division and Federal Court dates. |
| Designated foreign national | Barred for five years, and processing of an existing request is suspended for five years if the applicant becomes one. The Minister may also refuse to consider a request in defined circumstances of non compliance. |
| Exemption from certain provisions | A request for an exemption from the criteria or obligations of one particular division of the Act is barred. |
| Four inadmissibility grounds | Security, violating human or international rights, sanctions, and organised criminality. The provision does not apply at all. |
| Risk factors already considered | On an application made in Canada the refugee risk factors cannot be considered, and hardship must be considered instead. |
The twelve month bar does not apply to a person who, if removed, would be subjected to a risk to their life caused by the inability of each of their countries of nationality, or of their country of former habitual residence if they have no nationality, to provide adequate health or medical care. Nor does it apply where removal would have an adverse effect on the best interests of a child directly affected. Note the words each of their countries of nationality, which mean a person with two nationalities must show the inability in both.
One narrow point that is worth real money to the right person. The twelve month bar attaches to a withdrawal made after substantive evidence was heard. A withdrawal before that point does not trigger it. That is why the timing of a withdrawal is a legal decision rather than an administrative one, and why it should never be done on a reading of a web page, since withdrawal permanently bars any future claim.
Requirements checker
A structured way to see where you stand against the published criteria. It returns an indication only, not an eligibility decision, not legal advice, and not a prediction that you will be invited.
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