Persons in Need of 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: 165-186

165

CHAP TER 6

PERSONSINNEED

OF PROTEC TION

A. INT RODUCTION

As noted in chapter 2, the Immigration and Refugee Protection Act

(IRPA) created a new category of individual: “persons in need of pro-

tection.”1 These individuals are def‌ined as persons who if removed

from Canada would be at risk of torture; would have their life placed

1Immigration and Ref ugee Protection Act, S.C. 2001, c. 27, s. 97(1) [IRPA].

97. (1) A person in need of protect ion is a person in Canada whos e removal

to their countr y or countries of nationa lity or, if they do not have a country

of nationalit y, their countr y of former habitual residenc e, would subject

them personally

(a) to a danger, believed on s ubstantial grounds t o exist, of torture wit hin

the meanin g of Article 1 of the Convention Again st Torture; or

(b) to a risk to their life or t o a risk of cruel and unusua l treatment or pun-

ishment if

(i) the person is unable or, because of that risk, unwilling to avail

themself of the protection of that country,

(ii) the risk would be faced by the p erson in every part of t hat coun-

try and is not f aced generally by other indi viduals in or from that

country,

(iii) t he risk is not inherent or incide ntal to lawful sanct ions, unless

imposed in di sregard of accepted internat ional standards, and

(iv) the risk is not c aused by the inability of t hat country to provide

adequate healt h or medical care.

REFUGEE LAW166

at risk; or would be at risk of cruel and unusual treatment or punish-

ment. This chapter will explore the criteria that must be satisf‌ied in

order for a refugee claimant to be recognized as a person in need of

protection. In international law, this aspect of refugee status deter-

minat ion is known as “compleme ntary” or “subsi diary” protect ion; in

Canadian jurisprudential parlance, the criteria for being def‌ined as a

person in need of protection are know n as the “consolidated grounds”

for protection.2

Persons in need of protection may be granted protection by either

the Board after a refugee hear ing or by the Minister after a pre-removal

risk assessment review. As a result of a determination by either the

Board or the Minister, a person in need of protection become s a protect-

ed person and benef‌its from the statutory prohibition on refoulement.3

Before the IRPA, the Board did not have jurisdiction to grant pro-

tection to the category of persons in need of protection. Rather, failed

refugee claimants were considered for membership in a similarly de-

f‌ined category but only as a part of a post-determination process.4 The

post-determination process was plagued by very strict deadlines and an

extremely low acceptance rate.5 At the very least, the relocation of the

consideration of non-Convention refugee types of ri sk from a post-claim

process to the actual determination of the claim improves the eff‌iciency

of the refugee determination process.6 Given that the Board must al-

ready conduct a detailed analysis of the evidence underlying the claim,

it would appear to be a good time to determine whether the claimant

may face other types of risk upon return. It also (at least for claims de-

termined by the Board) improves the quality of the decision making.7

Those claimants not eligible for determination by the Board, and failed

2 The term “consolid ated grounds” ref‌lects the hi storical reality t hat these grounds

were added (“consolidated” wit h the Convention refugee grounds) to the jur isdic-

tion of the Board b y IRPA.

3 Interestin gly, in relation to pe rsons in need of protection, t he statutory prohibi-

tion of s. 115(1) only prohibits removal (i) to torture, and (ii) to cruel a nd unusual

treatment or pun ishment. Despite indiv iduals who face a risk to li fe qualifying

as persons i n need of protection (and hence, after a determ ination, as protected

persons), there is no stat utory bar on removal of indiv iduals to such a situation.

4 The Post-Determination Re fugee Claimants in Ca nada (PDRCC) class.

5 In its early da ys, the PDRCC acceptance rate was as low as 0.5 pe rcent (or con-

versely, the refusa l rate was a staggering 99.5 percent) p er Sinnappu v. Canada

(Minister of Citizenship and Im migration), [1997] F.C.J. No. 173 at para. 34 (F.C.).

6 Catherine Dauve rgne, “Evaluating Canad a’s New Immigration and Refugee

Protection Act in it s Global Context” (2003) 41 Alta L. Rev. 725 at 729.

7 Claims are det ermined by the Board a fter an oral hearing be fore what is a quasi-

judicial and in dependent decision-making bo dy. These character istics of deter-