The Definition of Convention Refugee

• Author: Sasha Baglay/Martin Jones
• Pages: 139-200

139

CHA PTER 4

THE DEFINITION OF

CON V ENTION R EFUGEE

A. INTRODUCTION

This chapter seeks to outline t he def‌inition of “Convention refugee”

that lies at the heart of Canadian refugee law. As will be seen, the def-

inition has been in f‌luenced by its origin in the Convention Relating to

the Status of Refugees1 and by subsequent developments in intern ational

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

formed by the jurisprudence applyi ng identical or similar def‌initions of

other countries that al so offer protection to refugees.

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

adian. It is most signif‌ic antly informed, and ultimately governed, by

a mass of domestic jurisprudence, ranging from the thousands of re-

ported decisions by the f‌irst-instance decision makers of the Immig ra-

tion and Refugee Board (IRB) to the countless decisions by t he Federal

Court and the Federal Court of Appeal and more than two dozen deci-

sions of the Supreme Court on matters related to refugees. It is impos-

sible to comprehensively summarize t his mass of juri sprudence here.

Instead, this c hapter seeks simply to provide an outline of the elements

of the def‌inition and an overview of the debates that continue in the

jurisprudence concerning their interpretation.

1 28 July 1951, 189 UNTS 150 [Refugee Conve ntion].

REFUGEE L AW140

B. TR EATY AND STATUTORY DEFINITION

The def‌inition of “refugee” in Canadian law i s based on the def‌inition

adopted by the international communit y in the Refugee Convention

which def‌ines a refugee as a person who

[a]s a result of events occurring be fore 1 January 1951 and owing to

well-founded fear of being per secuted for reasons of race, relig ion,

nationality, membership of a pa rticular soci al group or political

opinion, is outside the countr y of his national ity and is unable or,

owing to such fear, is unw illing to avail h imself of the protection of

that country ; or who, not having a nationalit y and being outside the

country of his for mer habit ual residence as a result of such events, is

unable or, owing to such fear, is unwi lling to return to it.2

Canada has adopted the essential elements of thi s def‌inition into

domestic law through the Immigration and Refugee Protection Act, sec-

tion 96. Although worded slightly differently, the Canadian def‌inition

of “Convention refugee”3 is equivalent to that set out in article 1A(2) of

the Ref ugee Convention without it s temporal l imitation.4 As noted previ-

ously, the temporal limitation was largely removed from international

law by the Refugee Protocol of 19675 and does not exist in Can adian law.

2 Ibid, art 1A(2).

3 SC 2001, c 27, s 96 [IR PA].

A Convention refugee is a p erson who, by reason of a well-founded fear

of persecution for re asons of race, religion, nation ality, membership in a

particul ar social group or politica l opinion,

(a) is outside each of t heir countries of nationa lity and is unable or, by

reason of th at fear, unwilling to avail t hemself of the protection of

each of those count ries; or

(b) not having a country of n ationality, is outside the countr y of their

former habitua l residence and is unable or, by reason of t hat fear, un-

willin g to return to that countr y.

4 The most obvious dif ference in wording between the t wo def‌initions relates to

the mention in s 96 of “each of t heir countries of nationa lity” (as opposed to

“the country of n ationality” in art 1A(2)). However, this apparent difference i s

resolved in a later p aragraph of art 1A(2), which states “the term ‘th e country

of his nationa lity’ shall mean ea ch of the countries of which he is a n ational.”

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

tion def‌inition s of refugee has to do with the omi ssion of exclusion from the

Canadia n def‌inition on the basis of ar t 1D. For a fulle r discussion of this i ssue

and exclusion more genera lly, see Chapter 5.

5 31 January 1967, 606 UNTS 267 [Refugee Protocol].

The Def‌inition of Convent ion Refugee 141

The def‌inition of Convention refugee is derived from an inter-

national treaty to which Canada has committed it self. As such, general

principles of interpretation of international law provide the starting

point of any interpretation of what the def‌inition mean s.6 Although it

is beyond the scope of this book to provide a ful l explanation of these

principles, the negotiating hi story of the Refuge e Convention, the behav-

iour of other parties to the Re fugee Convention, and the position of the

United Nations High Commissioner for Refugees (UNHCR) serve as

important considerations in i nterpreting the def‌inition.

Judicial pronouncements on the meaning of “Convention refugee”

made in other jurisdictions that are parties to the Refugee Convent ion

can also be used to inform the interpretation of the term in Canada. It

is this aspect of the interpretation of the def‌inition which is particu-

larly remarkable and is arg uably peculiar to the f‌ield of refugee law.7

Due to the increased volume and availability of decisions concerning

what the def‌inition means, especially over the last decade, a genuinely

transnational jurisprudence on the meaning of “Convention refugee”

has emerged. The decision makers in Ca nada have played an active role

in the development of this jurispr udence. Canadian decisions, from

those of the Refugee Protection Divi sion (RPD) to those of the Supreme

Court of Canada, are w idely cited by decision makers in other juris dic-

tions. Equally, Canadian deci sion makers frequently refer to decisions

elsewhere, particularly in other common law jurisdictions.8

The coincidental, if not deliberate, goal of this process is the in-

creasingly uniform interpretation of the meaning of “Convention refu-

gee.” As stated most clearly by the Federal Court of Australia in t he

matter of Rocklea Spinning Mills Pty Ltd v Anti-dumping Authority,9 the

common interpretation of a treaty is i nherent in its function as a treaty:

[I]t is obviou sly desirable that expre ssions used in inter national

agreements should be const rued so far as pos sible in a uniform and

6 These principles are set out in t he Vienna Convention on the Law of Treaties.

7 For a fuller dis cussion of the development (and limitat ions) of tra nsnational

refugee law in t he European context, see Guy Goodw in-Gill & Hélène Lamber t,

eds, The Limits of Transnational L aw Refugee Law, Policy Harmonization and

Judicial Dialog ue in the European Union (Cambridge: Cambridge University P ress,

2013).

8 For ex ample, the recent decision by the Supreme C ourt in Febles v Canada (Citi-

zenship and Immigration), 2014 SCC 68 (concerning exclusion from protection

as a refugee), made reference to judgme nts by the national court s of Australia,

Belgium, Can ada, France, Germany, and New Zea land and the regional cour t of

the Europea n Union.

9 (1995), 56 FCR 406 (Austl).