This paper discusses the definition of Convention refugee,Note 1 and “person in need of protection,” which are incorporated into Canadian law by section 96, 98, 108 and 97(1) of the
Immigration and Refugee Protection Act (IRPA).Note 2
The interpretation of the Convention refugee definition in s. 96 and definition of a person in need of protection in s. 97(1) is an ongoing process of which the Refugee Protection Division (RPD),Note 3 formerly the Convention Refugee Determination Division (CRDD) and the Refugee Appeal Division (RAD)Note 4 of the Immigration and Refugee Board of Canada (IRB), are major players. Some issues have been settled by the Courts, others remain unanswered. One of the difficulties in summarizing the basic principles in this area of the law is that many of the Court decisions are fact specific and do not establish general principles of law. In the paper we have described those areas in which the case law is conflicting or unsettled.
The paper identifies those principles of law which are settled and indicates how the Courts have applied those principles to some particular situations. In reading the cases themselves, we caution keeping in mind the need to distinguish between a case that sets out a legal principle and a case that applies the law to particular facts.
Reference will be made to the decisions of the RAD, the Federal Court, the Federal Court of Appeal and the Supreme Court of Canada. Foreign case law and CRDD/RPD decisions are not generally included in this paper. Where applicable, reference is also made to IRB Chairperson’s Guidelines, IRB Jurisprudential Guides, the UNHCR Handbook,Note 5 and to the relevant IRB Legal Services papers.
Case law on credibility and evidence can be found in the
IRB Legal Services papers “Assessment of Credibility in Claims for Refugee Protection”, dated December 31, 2020, and
"Weighing Evidence", dated December 31, 2020.
1.3. Convention refugee definition
Immigration and Refugee Protection Act, s. 96 - meaning of "Convention refugee"
96. A Convention refugee is a person who by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, is unwilling to avail themselves of the protection of each of those countries, or
(b) not having a country of nationality, is outside their country of former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
Immigration and Refugee Protection Act, Section 108(1) and (4) - rejection and cessation
108(1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances;
(a) the person has voluntarily reavailed themself of the protection of their country of nationality;
(b) the person has voluntarily reacquired their nationality;
(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;
(d) the person has voluntarily become re-established in the country that the person left, or remained outside of and in respect of which the person claimed refugee protection in Canada; or
(e) the reasons for which the person sought refugee protection have ceased to exist.
108(4) Paragraph 1(e) does not apply to a person who establishes that there are compelling reasons arising out of any previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.
Immigration and Refugee Protection Act, s. 98 - exclusion clauses
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
1.3.4. Schedule to the
Immigration and a Refugee Protection Act - exclusion clauses
Sections E and F of Article 1 of the United Nations Convention Relating to the Status of Refugees
E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
1.3.5. What the paper covers
This paper deals with the case law relating to s. 96 (sometimes referred to as the inclusion section) and s. 98 (sometimes referred to as the exclusion section). Each chapter deals with a different element of the definition of Convention refugee and there are separate chapters for the exclusion clauses. A chapter on applications to cease refugee status as well as a chapter on applications to vacate a refugee are also included.
1.4. General rules of interpretation
The Supreme Court of Canada has dealt with few refugee cases however, a case which raised a number of important issues and provided the Court with the opportunity to offer its unanimous interpretation of the definition of Convention refugee was
Canada (Attorney General) v. Ward.Note 6 While the Court did not deal with every aspect of the definition (for example, it did not deal with the exclusion clausesNote 7), it did provide us with a general framework of interpretation of the major inclusion components. The Court also commented extensively on the context in which refugee determination takes place and on the nature of Canada’s international obligations in this respect.
The following are the general principles enunciated in
1.4.1. Surrogate protection
The rationale underlying the international refugee protection system is that national protection takes precedence over international protection. This "surrogate" or "substitute" protection will only come into play in certain situations where national protection is unavailable.Note 9 The burden is on the claimant to establish a well-founded fear of persecution in all countries of which the claimant is a citizen.Note 10
1.4.2. Fear of persecution for a convention reason
Inability of a state to protect its citizens will not be sufficient to engage international protection obligations. There must also be a fear of persecution for a Convention ground.
…the international role was qualified by built-in limitations. These restricting mechanisms reflect the fact that the international community did not intend to offer a haven for all suffering individuals. The need for "persecution" in order to warrant international protection, for example, results in the exclusion of such pleas as those of economic migrants, i.e., individuals in search of better living conditions, and those of victims of natural disasters, even when the home state is unable to provide assistance, although both of these cases might seem deserving of international sanctuary.Note 11
1.4.3. Two presumptions at play in refugee determination
Presumption 1: If the fear of persecution is credible (the Court uses the word "legitimate") and there is an absence of state protection, it is not a great leap "… to presume that persecution will be likely, and the fear
Having established the existence of a fear and a state's inability to assuage those fears, it is not assuming too much to say that the fear is well-founded. Of course, the persecution must be real - the presumption cannot be built on fictional events - but the
well-foundedness of the fear can be established through the use of such a presumption.Note 13
Presumption 2: Except in situations where the state is in a state of complete breakdown, states must be presumed capable of protecting their citizens. This presumption can be rebutted by "clear and convincing" evidence of the state's inability to protect.Note 14
The danger that [presumption one] will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced.Note 15
1.4.4. State complicity not required
"Whether the claimant is 'unwilling' or 'unable' to avail him- or herself of the protection of a country of nationality,Note 16 state complicity in the persecution is irrelevant."Note 17
As long as [the] persecution is directed at the claimant on the basis of one of the enumerated grounds, I do not think the identity of the feared perpetrator of the persecution removes these cases from the scope of Canada's international obligations in this area.Note 18
1.4.5. Existence of fear of persecution
State involvement in the persecution, however, “... is relevant ... in the determination of whether a fear of persecution exists.”Note 19 As the Court explains:
It is clear that the lynch-pin of the analysis is the state's inability to protect: it is a crucial element in determining whether the claimant's fear is well-founded, and thereby the objective reasonableness of his or her unwillingness to seek the protection of his or her state of nationality.Note 20
1.4.6. Use of underlying anti-discrimination law in interpreting particular social group
The Supreme Court of Canada, discussing the meaning of “particular social group” makes reference to the fact that “[u]nderlying the Convention is the international commitment to the assurance of basic human rights without discrimination.”Note 21 The Court then quotes with approval from Professors Goodwin-GillNote 22 and HathawayNote 23 and adopts the approach taken in international anti-discrimination law as an inspiration to interpreting the scope of the Convention grounds.Note 24
Underlying the Convention is the international community's commitment to the assurance of basic human rights without discrimination …
This theme outlines the boundaries of the objectives sought to be achieved and consented to by the delegates …
… the enumeration of specific foundations upon which the fear of persecution may be based to qualify for international protection parallels the approach adopted in international anti-discrimination law…
The manner in which groups are distinguished for the purposes of discrimination law can thus appropriately be imported into this area of refugee law.Note 25
1.4.7. Broad and general interpretation of political opinion and perception of persecutor
With respect to the ground “political opinion”, the Court endorses the definition suggested by Professor Goodwin-Gill, i.e., “any opinion on any matter in which the machinery of the state, government, and policy may be engaged” and adds two refinements:
a) "… the political opinion at issue need not have been expressed outright," it can be imputed to the claimant;Note 26
b) "the political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs". The issue must be approached from the perspective of the persecutor.Note 27
1.4.8. Examiner to consider the relevant grounds
The Court refers with approval to paragraph 66 of the UNHCR
Handbook, which states that it is not the duty of the claimant to identify the reasons for the persecution but for the examiner to decide whether the Convention definition is met, having regard to all the grounds set out therein.Note 28
The following are general principles established by cases other than
Ward and by the
Immigration and Refugee Protection Act.
1.4.9. Section 7 of the
Given the seriousness of the consequences of a decision rendered by the Refugee Division and the nature of the rights conferred when Convention refugee status is granted, the principles of fundamental justice, as enshrined in section 7 of the
Canadian Charter of Rights and Freedoms,Note 29 must be duly respected.Note 30
Given the potential consequences for the [claimants] of a denial of [Convention refugee] status if they are in fact persons with a "well-founded fear of persecution", it seems to me unthinkable that the
Charter would not apply to entitle them to fundamental justice in the adjudication of their status.Note 31
Since the Supreme Court of Canada decision in Singh, however, more recent jurisprudence suggests that section 7 of the Charter is not engaged at the RPD when the Charter argument is based on the consequences of return to the person’s country of nationality, as there are other recourses prior to removal of the claim.Note 32
1.4.10. All elements of The definition must be met
To be determined a Convention refugee, a claimant must establish that they meet all the elements of the definition. Some aspects of the definition have not received judicial interpretation. Where several interpretations are possible, in choosing the most appropriate one, the Refugee Protection Division should take into account section 3(2) of the
Immigration and Refugee Protection Act, which lists the objectives of the Act with respect to refugees and section 3(3) which sets out how the Act is to be construed and applied.
1.4.11. Personal targeting not required
The claimant does not have to establish personal targeting or persecution or that they were persecuted in the past or will be persecuted in the future.Note 33
1.4.12. Applicable test is “Reasonable or serious possibility”
The applicable test in refugee claims is a "reasonable" or "serious possibility" that the claimant would be persecuted if they returned to the country of origin.Note 34
1.4.13. Exclusion clauses
While Article 1E deals with situations of persons not considered to be in need of refugee protection, Article 1F deals with persons considered not to be deserving of international protection.
1.4.14. International human rights instruments
Section 3(3)(f) of the
Immigration and Refugee Protection Act states that the Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory.
1.5. Definition of person in need of protection
97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
- to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
- to a risk to their life or to a risk of cruel and unusual treatment or punishment if
- (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
- (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
- (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
- (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
- Note 1
Convention Relating to the Status of Refugees, 189 U.N.T.S. 2545, entered into force on April 22, 1954 and the 1967
Protocol Relating to the Status of Refugees, 606 U.N.T.S. 8791, entered into force on October 4, 1967. The paper does not deal with cases relating to section 97 of IRPA, that being the section dealing with risk to life, risk of cruel and unusual punishment or treatment, and danger of torture.
Return to note 1 referrer
- Note 2
S.C. 2001, c. 27.
Return to note 2 referrer
- Note 3
Formerly the Convention Refugee Determination Division (CRDD). The RPD is the body in Canada which adjudicates claims in the first instance.
Return to note 3 referrer
- Note 4
The RAD came into existence on December 15, 2012.
Return to note 4 referrer
- Note 5
Office of the United Nations High Commissioner for Refugees,
Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1992.
Return to note 5 referrer
- Note 6
Ward: Canada (Attorney General) v. Ward,  2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
Return to note 6 referrer
- Note 7
The Supreme Court of Canada has dealt with the issue of exclusion under Article 1 F in
Pushpanathan v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 982; (1998), 43 Imm. L.R. (2d) 117 (S.C.C.) ;R. v. Finta,  1 S.C.R. 701;
Mugesera v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 100; 2005 SCC 40;
Ezokola v. Canada (Citizenship and Immigration),  2 S.C.R. 678; and
Febles v. Canada (Minister of Citizenship and Immigration) 2014 SCC 68. For a discussion of all exclusion issues see Chapters 10 and 11.
Return to note 7 referrer
- Note 8
Each principle will be discussed in more detail in later chapters of the paper.
Return to note 8 referrer
- Note 9
supra, note 6, at 709.
Return to note 9 referrer
- Note 10
supra, note 6, at 751.
Return to note 10 referrer
- Note 11
supra, note 6, at 731-732.
Return to note 11 referrer
- Note 12
supra, note 6, at 722.
Return to note 12 referrer
- Note 13
supra, note 6, at 722.
Return to note 13 referrer
- Note 14
supra, note 6, at 725-726.
Return to note 14 referrer
- Note 15
supra, note 6, at 726.
Return to note 15 referrer
- Note 16
With respect to the meaning of the terms “unable”, “unwilling” and “protection”, the Supreme Court of Canada adopts an interpretation of the Convention refugee definition that is consistent with paragraphs 98, 99 and 100 of the UNHCR
supra, footnote 6 at 718.
Return to note 16 referrer
- Note 17
supra, note 6, at 720.
Return to note 17 referrer
- Note 18
supra, note 6, at 726.
Return to note 18 referrer
- Note 19
Ward,supra, note 6, at 721.
Return to note 19 referrer
- Note 20
Ward, supra, note 6, at 722.
Return to note 20 referrer
- Note 21
supra, note 6, at 733.
Return to note 21 referrer
- Note 22
Goodwin-Gill, Guy S.,
The Refugee in International Law, (Oxford: Clarendon Press, 1983), p.38.
Return to note 22 referrer
- Note 23
Hathaway, James C.,
The Law of Refugee Status, (Toronto: Butterworths, 1991), pp. 104-105.
Return to note 23 referrer
- Note 24
supra, note 6, at 734.
Return to note 24 referrer
- Note 25
supra, note 6, at 733-5.
Return to note 25 referrer
- Note 26
supra, note 6, at 746.
Return to note 26 referrer
- Note 27
supra, note 6, at 747.
Return to note 27 referrer
- Note 28
supra, note 6, at 745.
Return to note 28 referrer
- Note 29
Section 7 provides that
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Return to note 29 referrer
- Note 30
Singh v. Canada (Minister of Employment and Immigration),  1 S.C.R. 177, 17 D.L.R. (4th) 422, 58 N.R. 1.
Return to note 30 referrer
- Note 31
ibid., at 210, per Wilson J.
Return to note 31 referrer
- Note 32
See, for example,
Laidlow, Roderic v. M.C.I. (F.C.A. no. A-77-12), Noël, Dawson, Stratas, October 10, 2012; 2012 FCA 256 and
Norouzi, Afshin v. M.C.I. (F.C. no. IMM-3253-16), Bell; April 18, 2017; 2017 FC 368.
Return to note 32 referrer
- Note 33
Salibian v. Canada (Minister of Employment and Immigration),  3 F.C. 250 (C.A.) at 258.
Return to note 33 referrer
- Note 34
Adjei v. Canada (Minister of Employment and Immigration),  2 F.C. 680 (C.A.) at 683.
Return to note 34 referrer
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