The Definition of Convention Refugee

AuthorSasha Baglay/Martin Jones
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].
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,
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).

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