This paper discusses the definition of Convention refugee,Note 1 which is incorporated into Canadian law by section 96 of the Immigration and Refugee Protection Act (IRPA).Note 2
The interpretation of the Convention refugee definition is an ongoing process, of which the Refugee Protection Division (RPD), formerly the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board of Canada (IRB) is a major player, it being the body in Canada which adjudicates claims in the first instance. 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. We have also identified those areas in which the case law is conflicting or unsettled.
In this paper, we have attempted to identify those principles of law which are settled and to indicate 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 Federal Court and Supreme Court of Canada which interpret the Convention refugee definition. Foreign case law and CRDD decisions are not generally included in this paper. Where applicable, reference is also made to the UNHCR Handbook,Note 3 and to the relevant IRB Legal Services papers and Chairperson's Guidelines issued by the IRB.
Case law on credibility and evidence can be found in the IRB Legal Services papers "Assessment of Credibility in Claims for Refugee Protections", dated January 31, 2004, and "Weighing Evidence", dated December 31, 2003, available from the IRB's website.
1.4. GENERAL RULES OF INTERPRETATION
The Supreme Court of Canada has dealt with very 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 4 While the Court did not deal with every aspect of the definition (for example, it did not deal with the exclusion clausesNote 5), it did provide us with a general framework of interpretation of its major 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 Ward.Note 6
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 7 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 8
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 9
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 well-founded."Note 10
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 11
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 12
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 13
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 14 state complicity in the persecution is irrelevant."Note 15
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 16
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 17
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 18 The Court then quotes with approval from Goodwin-GillNote 19 and HathawayNote 20 and adopts the approach taken in international anti-discrimination law as an inspiration to interpreting the scope of the Convention grounds.Note 21
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 22
1.4.7. Broad and general interpretation of political opinion
The Supreme Court of Canada adopts the definition of political opinion offered by Goodwin Gill,Note 23 namely, "any opinion on any matter in which the machinery of the state, government, and policy may be engaged"Note 24 and adds two refinements: (1) that the political opinion at issue need not have been expressed outright;Note 25 and (2) that the political opinion ascribed to the claimant by the persecutor need not necessarily conform to the claimant's true beliefs.Note 26
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 27
1.4.9. Perception Of Persecutor
With respect to the ground "political opinion", the Court endorses the definition suggested by 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 28
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 29
The following are general principles established by cases other than Ward and by the Immigration and Refugee Protection Act.
1.4.10. Section 7 Of The Charter
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 30 must be duly respected.Note 31
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 32
1.4.11. All Elements Of The Definition Must Be Met
To be determined a Convention refugee, a claimant must establish that he or she meets 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.
1.4.12. Personal Targeting Not Required
The claimant does not have to establish personal targeting or persecution or that he or she was persecuted in the past or will be persecuted in the future.Note 33
1.4.13. Standard Of Proof Is "Reasonable or Serious Possibility"
The standard of proof in refugee claims is a "reasonable" or "serious possibility" that the claimant would be persecuted if he or she returned to the country of origin.Note 34
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.