CHAPTER 1 - INTRODUCTION

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TABLE OF CONTENTS

  1. 1.1. FOREWORD
  2. 1.2. EXPLANATORY NOTES
  3. 1.3. CONVENTION REFUGEE DEFINITION
    1. 1.3.1 Immigration and Refugee Protection Act, s. 96 - meaning of "Convention refugee"
    2. 1.3.2 Immigration and Refugee Protection Act, Section 108(1) and (4) - cessation of refugee protection
    3. 1.3.3 Immigration and Refugee Protection Act, s. 98 - exclusion clauses
    4. 1.3.4 Schedule to the Immigration and Refugee Protection Act - exclusion clauses
  4. 1.4. GENERAL RULES OF INTERPRETATION
    1. 1.4.1. Surrogate Protection
    2. 1.4.2. Fear of Persecution For A Convention Reason
    3. 1.4.3. Two Presumptions At Play In Refugee Determination
    4. 1.4.4. State Complicity Not Required
    5. 1.4.5. Existence Of Fear Of Persecution
    6. 1.4.6. Use Of Underlying Anti-Discrimination Law In Interpreting Particular Social Group
    7. 1.4.7. Broad and general interpretation of political opinion
    8. 1.4.8. Examiner To Consider The Relevant Grounds
    9. 1.4.9. Perception Of Persecutor
    10. 1.4.10. Section 7 Of The Charter
    11. 1.4.11. All Elements Of The Definition Must Be Met
    12. 1.4.12. Personal Targeting Not Required
    13. 1.4.13. Standard Of Proof Is "Reasonable or Serious Possibility"
    14. 1.4.14. International Human Rights Instruments
  5. TABLE OF CASES

1. INTRODUCTION

1.1. FOREWORD

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.

1.2. EXPLANATORY NOTES

  1. References to "the Court of Appeal" are references to the Federal Court of Appeal. Similarly, references to "the Trial Division" are references to the Federal Court - Trial Division (replaced by the Federal Court).
  2. Each chapter includes a list, in alphabetical order, of all the cases referred to in the chapter, with appropriate page references.
  3. In order to facilitate searching for cases in the various IRB Legal Services libraries, we have adopted the following practice. For cases reported in reporting series such as the Immigration Law Reporter (Imm. L.R.), the Dominion Law Reports (D.L.R.), or the National Reporter (N.R.), we have included the unreported citation as well. However, for cases reported in the Federal Courts Reports (F.C.R.) (formerly know as the Canada Federal Court Reports (F.C.)) and the Supreme Court Reports (S.C.R.), the unreported citation is not usually included. Occasionally, a QuickLaw citation is also included (for example, where the case cannot be found in the Courts' websites).

    For example, Ward is reported in the Supreme Court Reports, the Dominion Law Reports and the Immigration Law Reporter, therefore, the citation for this case will read:

    Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th), 1, 20 Imm. L.R. (2d) 85.

    Valentin is reported in the Federal Court Reports, therefore, the citation for this case will read:

    Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.)

    Villafranca is reported in the Immigration Law Reporter, therefore the citation for this case will read:

    M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Marceau, Hugessen, Décary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.).
  4. For cases added in the December 31, 2002 update, the neutral citations are included.

1.3. CONVENTION REFUGEE DEFINITION

1.3.1. 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

(ii) 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.

1.3.2. Immigration and Refugee Protection Act, Section 108(1) and (4) - cessation of refugee protection

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 reacquires 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 county 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.

1.3.3. 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 aRefugee 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.

1.4. 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.

TABLE OF CASES

  1. Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.).
  2. Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 43 Imm. L.R. (2d) 117 (S.C.C.)
  3. Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.).
  4. Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, 17 D.L.R.(4th) 422, 58 N.R. 1.
  5. Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

Notes

Note 1

1951 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.

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Note 3

Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1992.

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Note 4

Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

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Note 5

The Supreme Court of Canada has more recently dealt with the issue of exclusion under Article 1 F(c) in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 43 Imm. L.R. (2d) 117 (S.C.C.). For a discussion of all exclusion issues see Chapters 10 and 11.

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Note 6

Each principle will be discussed in more detail in later chapters of the paper.

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Note 7

Ward, supra, footnote 4, at 709.

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Note 8

Ward, supra, footnote 4, at 751.

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Note 9

Ward, supra, footnote 4, at 731-732.

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Note 10

Ward, supra, footnote 4, at 722.

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Note 11

Ward, supra, footnote 4, at 722.

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Note 12

Ward, supra, footnote 4, at 725-726.

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Note 13

Ward, supra, footnote 4, at 726.

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Note 14

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 Handbook. See Ward, supra, footnote 4 at 718.

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Note 15

Ward, supra, footnote 4, at 720.

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Note 16

Ward, supra, footnote 4, at 726.

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Note 17

Ward, supra, footnote 4, at 721.

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Note 18

Ward, supra, footnote 4, at 733.

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Note 19

Goodwin-Gill, Guy S., The Refugee in International Law, (Oxford: Clarendon Press, 1983), p.38.

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Note 20

Hathaway, James C., The Law of Refugee Status, (Toronto: Butterworths, 1991), pp. 104-105.

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Note 21

Ward, supra, footnote 4, at 734.

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Note 22

Ward, supra, footnote 4, at 733-5.

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Note 23

Supra, footnote 19.

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Note 24

Ward, supra, footnote 4, at 746.

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Note 25

Ward, supra, footnote 4, at 746.

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Note 26

Ward, supra, footntoe 4, at 747.

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Note 27

Ward, supra, footnote 4, at 745.

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Note 28

Ward, supra, footnote 4, at 746.

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Note 29

Ward, supra, footnote 4, at 747.

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Note 30

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.

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Note 31

Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, 17 D.L.R.(4th) 422, 58 N.R. 1.

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Note 32

Singh, ibid., at 210, per Wilson J.

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Note 33

Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.) at 258.

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Note 34

Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.) at 683.

Return to note 34 referrer


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