Convention Refugees and Persons in Need of Protection

• Author: Jamie Chai Yun Liew; Donald Galloway
• Pages: 298-359

298

CH AP TER 10

CONVENTION

REFUGEES AND

PERSONS IN NEED

OF PROTEC TION

A. INTRODUCTION

Sections 96 and 97 of the Immigration and Refugee Protection Act (IR PA)1

provide the backbone to refugee law in Canad a. This chapter f‌irst ana-

lyzes section 96, which incorporates into Canadian law the def‌inition

of refugee found in the Convention and Protocol on the Status of Refu-

gees.2 It then examines section 97, which identif‌ies persons in C an-

ada who are in need of protection and incorporates into domestic law

international obligations imposed by the Convention Against Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment.3 Sub-

sequently, it analyzes section 98 of the I RPA , which imposes quali f‌ica-

tions on protection by def‌ining those who should be excluded.

B. SECTION 96

Section 96 of the IR PA states:

1 Immigration and Ref ugee Protection Act, SC 2001, c 27 [IRPA].

2 Convention relating to the Sta tus of Refugees, 28 July 1951, 189 UNTS 137

(entered into force 22 April 1954) [Refugee Co nvention]; Protocol relating to th e

Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 Octobe r

1967) [Protocol].

3 10 December 1984, Can TS 1987 No 36, 23 ILM 1027 [Convention against Torture].

Convention Refugee s and Persons in Need of Protection 299

96. Convention refugee – A Convention ref ugee is a person who, by

reason of a well-founded fear of per secution for reasons of race, rel i-

gion, nationalit y, memb ership in a particular s ocial group or political

opinion,

(a) is outside each of their c ountries of national ity and is unable or,

by reason of that fea r, unwilling to avail t hemself of the protec-

tion of each of those countr ies; or

(b) not having a countr y of nationality, is outside the countr y of

their former habitu al residence and is unable or, by reas on of

that fear, unwill ing to return to that country.

Beyond the requirement of being outside the country of orig in,

this def‌inition rest s on four principal elements: (1) the claimant’s well-

founded fear; (2) of persecution; (3) for rea sons of any of the f‌ive enum-

erated grounds; and (4) the availability of state protection. These four

elements are analyzed in detail below.

1) A Well-Founded Fear

The decision of the Supreme Court of Canada in Canada (AG) v Ward4

provides a framework to use when establi shing the def‌initional re-

quirement of a well-founded fear. In Ward, La Forest J describes a “bi-

partite test” involving subjective and objective components: “(1) the

claimant must subjectively fear persecution; and (2) this fear must be

well-founded in an objective sense.”5 Justice La Forest reproduced the

analysis articulated by Heald J at the Federal Court of Appeal:

The subjective component relates to the ex istence of the fear of perse-

cution in the mind of the re fugee. The objective component requires

that the refugee’s fear be e valuated objectively to determine if there i s

a valid basis for t hat fear.6

4 [1993] 2 SC R 689 [Ward].

5 Ibid at 723; see also Chan v Can ada (Minister of Employment and Imm igration),

[1995] 3 SCR 593 at para 119 [Chan].

6 Ward, above note 4 at 723; see al so UN High Commissioner for Ref ugees, Hand-

book and Guidelines on Proce dures and Criteria for Determining Ref ugee Status

(December 2011), online: UNHCR www.unhcr.org/3d58e13b4.html at para 38

[UNHCR Handbook]:

To the element of fear — a state of min d and a subjective condition — is added

the qualif‌ic ation ‘well-founded.’ This i mplies that it is not only t he frame of

mind of the pers on concerned that deter mines refuge e status, but that t his

frame of mind mu st be supported by an object ive situation. The term ‘ well-

founded fear’ ther efore contains a subjective and an obje ctive element, and in

IMM IGRAT ION LAW300

In more recent cases, the bipart ite approach has become entrenched.

In a frequently cited case, Kam ana v Canada (Minister of Citize nship and

Immigration),7 it was stated that “[t]he lack of evidence going to the

subjective element of the claim is a fatal f‌l aw which in and of itself

warrants dismissal of the claim, since both elements of the refugee

def‌inition — subjective and objective — must be met.”8 However, the

need for an inquiry into whether a clai mant has a subjective fear of

persecution is a matter of some controversy. It appears to disqualify

claimants who are either too immature or intellectual ly unable to ap-

preciate the risks to which they are subject, yet who are in extreme

need of protection because they face a risk of persecution in their coun-

try of origin.9 That Canadian courts’ adamant position that evidence

of a subjective fear is a threshold requirement on which the succes s of

a claim may depend is quite puz zling. It can perhaps be explained by

the fact that, in the va st majority of cases, the cla im is based on an al-

legation of subjective fear and the apprehension of danger, and when

this allegation is not made out, the decision maker sees reason to reject

the claim outright. In such c ases, the claim is being rejected ess ent ially

because the clai mant’s general credibility is found to be wanting. The

claimant’s statement of the reason for his departure is rejected in fa-

vour of an alternative explanation that may be based not on his oral

testimony but on his actions10 where, for example, he failed to offer a

good reason for delaying in f‌leeing from the alleged danger or failed to

explain why he did not seek help from sources closer or more readily

available.11 Where, of course, a cla imant can provide an explanation for

determini ng whether well-founded fea r exists, bot h elements must be ta ken

into consider ation.

7 [1999] FCJ No 1695 (TD).

8 Ibid at para 10.

9 See James C Hathaway & W illiam S Hicks, “Is There a Subject ive Element in

the Refugee Convent ion’s R equirement of ‘Well-Founded Fear’?” (2005) 26

Michigan Journal of Intern ational Law 505.

10 See, for ex ample, Subramaniyathas v Canada (Minister of Citize nship and Immi-

gration), 2014 FC 583, where the court held that t he Refugee Protection Divi sion

cannot be spec ulative when making plau sibility f‌indings rel ated to the credibil-

ity of the clai mant’s story.

11 See, for ex ample, Huerta v Canada (Minister of Employ ment and Immigration),

[1993] FCJ No 271 (CA): The court focused on t he claimant’s conduct before she

left, specif‌ic ally that the claim ant continued to work, taking step s to contest her

dismis sal and get her position reinst ated, that she continued to attend cl asses,

and that when she ar rived in Canada as a tou rist, there was a delay in m aking

a refugee clai m; see also Ilie v Canada (Minister of Citizenship an d Immigration)

(1994), 8 8 FTR 220 (TD), whe re the claimant provided e xplanations as to why

he did not claim ref ugee protection in countries he t ravelled through before