The Definition of Convention Refugee

• 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: 93-145

93

CHAP TER 4

THE DEFINITION OF

CONVENTION REFUGEE

A. INTRODUCTION

The present chapter seeks to outline the def‌i nition of “Convention refu-

gee” that lies at the heart of Canadian refugee law. As will be seen, the

def‌inition has been inf‌luenced by the origin of the def‌inition in the

Refugee Convention and by subseq uent developments in international

law. In addition, the Canadian interpretation of the def‌inition is in-

formed by the jurispr udence applying identical or sim ilar def‌initions

of other countries who also offer protection to refugees.

But ultimately, the Canadian def‌init ion of refugee is just that: Can-

adian. It is most signif‌icantly informed, and ultimately governed, by a

mass of domestic jur isprudence, rangi ng from the thousands of report-

ed decisions by the f‌irst-inst ance decision makers of the Board to the

countless decisions by the Federal Court and the Court of Appeal and

nearly two dozen decisions of the Supreme Court on matters related to

refugees. It is impossible to comprehensively summarize this mass of

jurisprudence here. In stead, this ch apter simply seeks to provide an

outline of the elements of the def‌inition and an overv iew of the debates

that continue in the juri sprudence concerning their i nterpretation.

REFUGEE LAW94

B. TREATY AND STATUTORY DEFINITION

The def‌inition of “refugee” in Canadian law is based upon the def‌in-

ition adopted by the international communit y in the Refugee Co nvention .

Article 1A(2) of the Convention def‌ined a refugee as a person who:

As a result of events occu rring before 1 Janua ry 1951 and owing to

well-founded fear of being pe rsecuted for reasons of r ace, religion,

nationality, membership of a particular social group or political

opinion, is outside the count ry of his nat ionality and i s unable or,

owing to such fear, is unwilling to avail himself of the protection of

that country ; or who, not having a national ity and being outs ide the

country of his for mer habitual residence a s a result of such events, is

unable or, owing to such fear, is unwilling to return to it.

Canada has adopted the e ssential elements of thi s def‌inition into

domestic law through sect ion 96 of the Immigration and Refugee Pro-

tection Act (IRPA). Although worded slightly differently, the Canadi an

def‌inition of Convention refugee1 is equivalent to that set out in article

1A(2) of the Refugee Convent ion w ithout its temporal li mitation.2 As

noted previously, the temporal limitation was largely removed from

international law by t he Refugee Protocol of 1967.

The def‌inition of Convention refugee is derived from an internation-

al treaty to which Can ada has committed it self. As such, the starting

point of any interpretation of the meaning of the def‌inition is general

1Immigration and Ref ugee Protection Act, S.C. 2001, c. 27, s. 96 [IRPA].

A Convention refugee i s a person who, by reason of a well-founded fea r of

persecution for re asons of race, religion, nat ionality, membership in a par-

ticular s ocial group or political opin ion,

(a) is outside each of t heir countries of nation ality and is unable or, by

reason of that fear, unwilling to avail themself of the protection of each

of those countries; or

(b) not having a country of n ationality, is outside the count ry of their for-

mer habitual re sidence and is unable or, by reason of t hat fear, unwill-

ing to return t o that country.

2 The most obvious dif ference in wording between t he two def‌initions relate s to

the mention in s. 96 of “each of t heir countries of nation ality” (as opposed to

“the country of n ationality” in art . 1A(2)). However, this apparent d ifference is

resolved in a late r paragraph of art. 1A(2), which states “the ter m ‘the country

of his nation ality’ shall mean e ach of the countries of which he i s a national.”

Perhaps the most notable d ifference between the Can adian and Refugee Conven-

tion def‌initions of refuge e has to do with the omiss ion of exclusion from the

Canadia n def‌inition on the basis of a rt. 1D. See Chapter 5 for a fuller disc ussion

of this is sue and exclusion more generally.

The Def‌inition of Convent ion Refugee 95

principle s of interpretation of i nternational law.3 While it is bey ond the

scope of this book to prov ide a full explanat ion of these principles, the

negotiating history of t he Refugee Conve ntion, the behav ior of other par-

ties to the Refugee Conve ntio n, and the position of the UNHCR are al l

important considerations in interpreting the def‌inition.

Less formally, judicial pronouncements on the meaning of “Con-

vention refugee” made in other jurisdict ions which are parties to the

Refugee Convention ca n also be used to inform the interpretation of the

term in Canada. It is this aspect of the interpretation of the def‌inition

which is particularly remarkable and is arguably peculi ar to the f‌ield

of refugee law. As a result of the increased volume and avail ability of

decisions concerning the meaning of the def‌inition, especially over the

last decade, a genuinely transnational jurisprudence on the meaning

of “Convention refugee” has emerged. The decision makers in Canada

have played a n active role in the development of thi s juris prudence.

Canad ian decisions, f rom thos e of the Refugee Protection Div ision

(RPD) to those of the Supreme Court of Canada, are widely cited in the

decisions of decision makers in other jurisprudences. Equally, Canad-

ian decision makers f requently make reference to decisions els ewhere,

partic ularly in ot her common-law jurisdictions.

The coincidental, if not deliberate, goal of this proce ss is the increas-

ingly uniform interpretation of the meaning of Convention refugee. As

stated most clearly by the Federal Court of Australia in the matter of

Rocklea Spinning Mills Pty Ltd. v. Anti-dumping Authority4 the common

interpretation of a treaty i s inherent in its function as a t reaty:

it is obviously desi rable that expressions us ed in international agre e-

ments should be constr ued so far as p ossible in a unifor m and con-

sistent manner . . . to avoid a multit ude of divergent approaches in the

territories of t he contracting parties on the sa me subject matter.

Although commenting on a different treat y, this approach has in-

creasingly been adopted by court s, including Canadian courts, in i nter-

preting the meaning of Convention refugee.5 Jurisprudence from other

jurisdictions is invariably a cent ral consideration in the Canadian in-

terpretation of the def‌inition. However, the consideration of foreign

jurisprudence comes w ith an obvious caveat: while the jurispr udence

3 These principle s are set out in the Vienna Convention on t he Law of Treaties.

4 (1995), F.C.R. 406.

5R v. Secretary of State for the Hom e Department ex p. Ad an, [2001] 2 A.C. 477;

and Sepet and anothe r v. Secretary of Stat e for the Home Department (Respondent),

[2003] U.K.H.L. 15.