Exclusion from Refugee Protection

AuthorSasha Baglay/Martin Jones
Not everyone who satisf‌ies the provisions of the def‌inition of refugee
will be considered a refugee. The Convention Relating to the Status of
Refuge es1 and Canadian law set out various categories of individuals
who are to be excluded from status as refugees. Exclusion is not discre-
tionary; it is mandatory. For example, from 2008 to 2011, the federal
government raised an is sue of exclusion in, on average, ninety refugee
cases before the Imm igration and Refugee Board (IRB).2 The Board con-
siders exclusion on its own motion in an unknown, but likely larger,
number of further cases. All individuals who fall within any of the
“exclusion” provisions will be automatically deemed not to be refugees
so will not benef‌it from any of the protections offered to refugees.
As discussed further below, refugee claimants may be excluded based
on their lack of need of protection (article 1E) or their being undeserv-
ing of protection (article 1F).3 The Refuge e Convent ion also excludes a
1 28 July 1951, 189 UNTS 150 [Refugee Conve ntion].
2 Canada Bord er Services Agency, Canada’s Program on Crimes again st Humanity
and War Crimes, 12th Report: 200 8–2011, online: CBSA ww w.cbsa-asfc.gc.ca/
security- securite/wc-cg/ wc-cg2011-eng.html#c5x1. For example, in 2011, the
CBSA inter vened in eighty-eight case s and investigated interve ning in almost
600 other ca ses.
3 Sections 1E and 1F of the Re fugee Conventio n, Schedule to the Immigration and
Refugee P rotection Act, SC 2001, c 27 [IRPA ] (pursuant to s 2(1) q.v. “Refugee
subset of Palestinian ref ugees who are not seen to be in need of protec-
tion (article 1D), but Canada has not incorporated thi s exclusion into
domestic law. The exclusion provisions express two key ideas found in
the Refugee Conventi on: (1) that international protection is subsidiar y
to national protection, and (2) that international protection obligations
do not trump national and inter national interests. These idea s will be
discussed f urther in the analy sis of articles 1E and 1F, below.
The consequences of exclusion are severe. As stated by the Supreme
Court of Canada in the leading case of Pushpanathan v Canada (Minis-
ter of Citizenship and Immigration),4 the profound consequences of the
exclusion provisions must inform their i nterpretation and application:
By contrast, pers ons falling wit hin article 1F of the Convention are
automatically excluded fr om the protections of the Act. Not only may
they be returne d to the country from which t hey have sought refuge
without any determi nation by the Minister t hat they pose a threat to
public safety or national s ecurity, but their substant ive claim to refu-
gee status wil l not be considered. The practical impl ications of such
an automatic exclusion . . . are profound . . . . It is agai nst this back-
ground that the inte rpretation of the exclusion conta ined in article
1F(c) of the Convention must be considered.5
One immediate consequence of this approach is the narrow in-
terpretation of the exclusion provisions th at has been adopted in the
jurisprudence. The exclusion provisions are exhaustive and must be
interpreted strictly so a s not to frustrate the intention of the Re fugee
Convention to provide protection. As stated in UNHCR’s Handbook on
Procedures and Criteria for Determining Refugee Status under the 1951 Con-
vention and the 1967 Protocol: “Considering the serious consequences
E. This Convention sha ll not apply to a person who is recogni zed by the
competent authoritie s of the country in which he ha s taken residence as
having th e rights and obligations which a re attached to the posse ssion of
the national ity of that country.
F. The provisions of t his Convention shall not apply to any pe rson with
respect to whom the re are serious reasons for con sidering that:
(a) he has committe d a crime against peace, a w ar crime, or a crime
against huma nity, as def‌ined in the intern ational instrument s drawn
up to make provi sion in respect of such crime s;
(b) he has committed a ser ious non-political crime outsi de the country of
refuge prior to his a dmission to that countr y as a refugee;
(c) he has been gu ilty of acts contrary to t he purposes and princ iples of
the United Nat ions.
4 [1998] SCJ No 46 at para 13 [Pushpanathan].
5 Pushpanathan, above note 4.

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