The Definition of Convention Refugee
| Author | Donald Galloway |
| Pages | 251-292 |
CHAPTER
14
THE
DEFINITION
OF
The
determination whether
a
person
is a
Convention
refugee
is
made
in
two
distinct situations.
As
described
above,1
visa
officers
outside Canada
have
the
authority
to
grant immigrant visas
to
those whom they
identify
as
Convention
refugees
seeking resettlement. Alternatively,
a
person
may
make
a
claim
to be a
Convention
refugee
on
arrival
in
Canada
or
after
having been admitted into Canada.
An
internal process
has
been
established
to
determine such claims.
In
this
chapter
the
definition
of
Convention
refugee
is
analysed.
In
chapter
15, the
internal determina-
tion process
is
examined.
In
1969 Canada acceded
to the
United Nations Convention
signed
at
Geneva
in
1951,
as
amended
by the
P
rot
ocol,
signed
at New
York
City
in
1967.
The
complex definition
of the
term
"refugee"
found
in the
Convention
has
been transplanted
into
three sub-
sections
and a
Schedule
of the
Immigration Act. Section 2(1)
of the Act
provides
the
body
of the
definition, stating:
See
chapter
9.
CONVENTION
REFUGEE
A.
THE
ELEMENTS
OF THE
DEFINITION
251
1
"Convention
refugee"
means
any
person
who
(a) by
reason
of a
well-founded
fear
of
persecution
for
reasons
of
race,
religion, nationality, membership
in a
particular social group
or
political opinion,
(i)
is
outside
the
country
of the
person's
nationality
and is
unable
or, by
reason
of
that
fear,
is
unwilling
to
avail himself
of the
protection
of
that country,
or
(ii)
not
having
a
country
of
nationality,
is
outside
the
country
of
the
person's
former
habitual residence
and is
unable
or, by
reason
of
that
fear,
is
unwilling
to
return
to
that country,
and
(b)
has not
ceased
to be a
Convention
refugee
by
virtue
of
subsection
(2),
but
does
not
include
any
person
to
whom
the
Convention does
not
apply pursuant
to
section
E or F of
Article
1
thereof,
which
sections
are set out in the
schedule
to
this
Act.
Subsection
(2)
deals
with
cessation,
and
reads
as
follows:
(2) A
person ceases
to be a
Convention
refugee
when
(a) the
person voluntarily reavails himself
of the
protection
of the
country
of the
person's
nationality;
(b)
the
person voluntarily reacquires
his
nationality;
(c)
the
person acquires
a new
nationality
and
enjoys
the
protec-
tion
of the
country
of
that
new
nationality;
(d)
the
person voluntarily re-establishes himself
in the
country
that
the
person
left,
or
outside
of
which
the
person remained,
by
reason
of
fear
of
persecution;
or
(e)
the
reasons
for the
person's
fear
of
persecution
in the
country
that
the
person
left,
or
outside
of
which
the
person remained,
cease
to
exist.
This
subsection
is
qualified
by
subsection
(3),
which
states:
(3) A
person does
not
cease
to be a
Convention
refugee
by
virtue
of
paragraph
(2) (e) if the
person establishes that there
are
compel-
ling reasons arising
out of any
previous persecution
for
refusing
to
avail
himself
of the
protection
of the
country that
the
person
left,
or
outside
of
which
the
person remained,
by
reason
of
fear
of
persecution.
As
noted
in the
definition,
the
Schedule
to the Act
includes
two
sec-
tions
of
Article
1 of the
Convention.
They
read
as
follows:
252
IMMIGRATION
LAW
E.
This
Convention
shall
not
apply
to a
person
who is
recognized
by
the
competent authorities
of the
country
in
which
he has
taken
residence
as
having
the
rights
and
obligations which
are
attached
to
the
possession
of the
nationality
of
that country.
F.
The
provisions
of
this Convention shall
not
apply
to any
person
with
respect
to
whom there
are
serious reasons
for
considering
that:
(a) he has
committed
a
crime against peace,
a war
crime,
or a
crime
against humanity,
as
defined
in the
international instruments
drawn
up to
make provision
in
respect
of
such crimes;
(b)
he has
committed
a
serious non-political crime outside
the
coun-
try of
refuge
prior
to his
admission
to
that country
as a
refugee;
(c)
he has
been guilty
of
acts contrary
to the
purposes
of the
United
Nations.
This extended definition
can be
more readily understood
by
dividing
it
into
its
component parts. Essentially,
it is
divisible into three parts.
The
first
part deals with
the
question
of
inclusion
—
Whom does
the
primary
part
of the
definition include within
its
terms?
The
second part deals
with cessation
—
When does
a
person cease
to be a
refugee?
And the
third part deals with exclusion
—
Whom does
the
definition exclude?
B.
INCLUSION
The
part
of the
definition that identifies those
who
fall
within
its
ambit
can
itself
be
analysed into several component parts, each
of
which
is
examined
separately
in the
following sections. They
focus
on the
fol-
lowing
factors:
the
concept
of
persecution;
the
requirement
of a
well-founded
fear;
the
various grounds
of
persecution (race, nationality, religion, mem-
bership
in a
particular social group,
or
political opinion);
the
requirement that
one be
outside
the
country
of
one's nationality
and be
unwilling
or
unable
to
avail oneself
of its
protection;
the
requirement that
one be
stateless
and
outside
the
country
of
former
habitual residence
and be
unwilling
or
unable
to
return.
Although
the
legal definition does
not
distinguish
between claims
on the
basis
of
gender,
the
Immigration
and
Refugee
Board
has
recog-
nized that
the
problems
faced
by
women
who
seek
refugee
status are,
in
many situations, radically
different
from
those
faced
by
men.
As a
con-
sequence,
the
chairperson
of the
Board
has
published
a set of
Guidelines
The
Definition
of
Convention
Refugee
253
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