Exclusion from Refugee Protection

• Author: Martin Jones - Sasha Baglay
• Profession: Centre for Refugee Studies, York University - Centre for Refugee Studies, York University. Faculty of Criminology, Justice and Policy Studies, University of Ontario Institute of Technology
• Pages: 146-164

CHAP TER 5

EXCLUSION FROM

REFUGEE PROTECTION

A. INT RODUCT ION

Not everyone who satisf‌ies the provisions of the def‌inition of refugee

will be considered a refugee. The Refugee Co nvention and Canadian law

set out various categories of individual s who are to be excluded from

status as refugees. Exclusion is not discretionary; it is mandatory. The

government makes about three hundred allegations before the Immi-

gration and Refugee Board in an average year that an individual should

be excluded.1 The Board considers exclusion on its own motion in an

unknown, but likely larger, number of further cases. All i ndividuals

who fall withi n any of the “exclusion” provisions wi ll be automatically

deemed not to be refugees, and will not benef‌it from any of the protec-

tions offered to refugees.

As discus sed further below, refugee claima nts may be excluded

based upon either their lack of need of protection (article 1E) or their

being undeserv ing of protection (article 1F).2 The Refugee Conve ntio n

also excludes a subset of Palestinian refugees who are not seen to be in

1 Canada Borde r Services Agency, “Canada’s Progr am on Crimes Against Huma n-

ity and War Crime s: Eighth Annual Report 20 04–2005” at “Exclusion” (the

report notes th at while the CBSA inter vened in 155 cases in 2004 –2005, the

number for previous ye ars was twice as high).

2 Sections 1E and 1F of t he Refugee Convention, Schedule to the IRPA (pursua nt to

s. 2(1) q.v. “Refugee Convention”).

146

Exclusion from Refugee Protection 147

need of protection (article 1D) but Can ada does not enforce this exclu-

sion in domestic law. The exclusion provisions both continue and ex-

pand two key ideas found in the Refugee Convent ion: t hat inter nation al

protection is subsidiar y to national protection, and t hat international

protection obligations do not trump national and i nternational inter-

ests. These ideas w ill be further discus sed in the analysis of articles 1E

and 1F, below.

The consequences of exclusion are severe. As st ated by the Supreme

Court of Canada in the leading case of Pushpanathan,3 the profound

consequences of the exclusion provis ions must in form t heir interpreta-

tion and application:

By contrast, persons falling within article 1F of the Convention are

automatically excluded f rom the protections of the Act. Not only may

they be returned to the countr y from which they have sought refuge

without any determi nation by the Minister that the y pose a threat to

public safety or nation al security, but their substantive cla im to refu-

gee status wi ll not be considered. The pract ical implicat ions of such

an automatic exclusion . . . are profound. . . . It is agai nst this b ack-

ground that the interpretation of the exclusion contained in article

1F(c) of the Convention must be con sidered.4

One immediate consequence of this approach is the n arrow in-

terpretation of the exclusion provisions that has been adopted in t he

jurisprudence. The exclusion provisions are exhaustive and must be

interpreted strictly so as not to frustrate the intention of the Refugee

Convent ion to prov ide protection. As stated in the UNHCR Handbook:

E. This Convention sh all not apply to a person who is recogn ized by the

competent authoritie s of the country in which he ha s taken residence as

having t he rights and obligations whic h are attached to the posse ssion of the

nationality of that country.

F. The provisions of this Convent ion shall not apply to any person wit h

respect to whom th ere are serious reasons for con sidering that:

(a) he has committe d a crime against peace, a wa r crime, or a crime agains t

humanity, as def‌ine d in the internationa l instruments dra wn up to

make provision i n respect of such crimes;

(b) he h as committed a serious non-pol itical crime outside the c ountry of

refuge prior to hi s admission to that count ry as a refugee;

(c) he has been gu ilty of acts contrary to t he purposes and principle s of the

United Nations .

3Pushpanath an v. Canada (Minister of Citizenship and Immigratio n), [1998] S.C.J.

No. 46 at para. 13 [Pushpanathan].

4Ibid.