Persons in Need of Protection

• Author: Sasha Baglay/Martin Jones
• Pages: 224-248

224

CHAPTER 6

PERSONS IN NEED

OF PROTECTION

A. INTRODUCTION

As noted in Chapter 2, the Immigration and Refugee Protection Act creat-

ed a new category of individual: “per sons in need of protection.”1 These

individuals are def‌i ned as persons who, if removed from Canada, would

be at risk of torture, would have their life placed at risk, or would be at

risk of cruel and unusual treatment or punishment. This chapter will

1 SC 2001, c 27, s 97(1) [IRPA].

97. (1) A person in need of prote ction is a person in Canad a whose removal to

their countr y or countries of national ity or, if they do not have a country of

nationalit y, their count ry of former habitual res idence, would subject them

personally

(a) to a danger, believed on sub stantial grounds to e xist, of torture withi n

the meanin g of Article 1 of the Convention Against Torture; or

(b) to a risk to their life or to a r isk of cruel and unusual t reatment or

punishment if

(i) the person is u nable or, because of that risk, unw illing to avail

themself of t he protection of that country,

(ii) the risk would be faced by the pe rson in every part of that cou n-

try and is not f aced generally by other indiv iduals in or from that

country,

(iii) the risk is not inherent or inc idental to lawful sanct ions, unless

imposed in d isregard of accepted intern ational standards, a nd

(iv) the risk is not cau sed by the inability of t hat country to provide

adequate healt h or medical care.

Persons in Need of Prot ection 225

explore the criteria that must be satisf‌ied if a refugee claimant is to be

recognized as a person in need of protection. In international law, this

aspect of refugee status determination is known as “complementary”

or “subsidiary” protection; in Canadian jurisprudential parlance, the

criteria for being def‌ined as a person in need of protection are known

as the “consolidated grounds” for protection.2

Persons in need of protection may be granted protection by either

the Immigration and Refugee Board (IRB) after a refugee hearing or by

the Minister after a pre-removal r isk assessment review. As a result of a

determination by either the Board or the Minister, a person in need of

protection becomes a protected person and benef‌its from the statutory

prohibition onrefoulement.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 strict deadlines and an ex-

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

consideration of non-Convention refugee types of risk 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 already 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 determined by the Board) improves the quality of the decision

making.7 Those claimants not eligible for determination by the Board,

and rejected claimants, will have their membership in the category of

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 by t he IRPA.

3 Interestin gly, in relat ion to persons in need of protection, t he statutory prohibi-

tion of s 115(1) prohibits on ly removal (1) to torture, and (2) to cruel and 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 statutor y bar on removal of individu als to such a situation.

4 The Post-Determination R efugee Claimants in C anada (PDRCC) class.

5 In its early days, t he PDRCC accepta nce rate was as low as 0.5 percent (or con-

versely, the refusa l rate was a staggering 99.5 percent): see Sinnappu v Canada

(Minister of Citizenship and Immigratio n), [1997] FCJ No 173 at para 34 (FC)

[Sinnappu].

6 Catherine Dauvergne, “Eva luating Canada’s New Immig ration and Refugee

Protection Act in It s Global Context” (2003) 41 Alberta L aw Review 725 at 729.

7 Claims a re determined by the Board a fter an oral hearing be fore what is a quasi-

judicial and i ndependent decision-making b ody. These ch aracteristics of deter-