Policy note for identification of TC1-05038 as a Refugee Appeal Division Jurisprudential Guide

​​​​​On July 28, 2022​, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act (the Act), and after consultation with the Deputy Chairpersons, I identified the following Refugee Appeal Division (RAD) decision as a jurisprudential guide:


Scope: The proper interpretation of the ‘generalized risk’ exception to protection found at subparagraph 97(1)(b)(ii) of the Act, in claims for protection involving allegations of gang-targeting or other acts of criminality.

The Act requires the IRB to “…deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.”

To assist the IRB in meeting this requirement, paragraph 159(1)(h) of the Act authorizes me to identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties.

The issuance of jurisprudential guides is meant to facilitate decision-making in a manner that meets the twin requirements of fairness and efficiency, enabling the IRB to discharge its statutory obligation as discussed in the recent decision of the Federal Court of Appeal in Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship).Footnote 1

Decision TC1-05038 will assist Refugee Protection Division (RPD) and RAD members in carrying out their duties because it provides a detailed, clear, and sound analysis of subparagraph 97(1)(b)(ii) of the Act, in claims for protection based on gang-targeting and general criminality. The decision considers the higher court jurisprudence on subparagraph 97(1)(b)(ii) of the Act and identifies an interpretation and a framework for analysis that will help to foster a consistent, fair, and efficient treatment of this provision by both the RPD and the RAD. The analysis and framework set out at paragraphs 23-41 of the decision form the basis of this Jurisprudential Guide. ​The decision does not diminish, or otherwise alter, the onus on refugee claimants to establish a credible claim.

As indicated in the IRB’s updated Policy on the Use of Chairperson’s Guidelines and Jurisprudential Guides, jurisprudential guides are not binding and members remain free to reach their own conclusions, based on the facts of each particular case. Members are expected to follow jurisprudential guides, unless compelling or exceptional reasons exist to depart from them. Members must explain in their reasoning why they are not following a particular jurisprudential guide when, based on the facts or circumstances of the case, the member would otherwise be expected to follow it.

The key determination in this jurisprudential guide relates to a question of law. The IRB will carefully monitor developments in the jurisprudence to ensure that the identification of this jurisprudential guide remains consistent with any future jurisprudential developments.

Approval: ​

Richard Wex