Refugee Law

Any refugee claims have to fall into one of the two categories only. A Convention Refugee and a Person in Need of Protection as defined under the Immigration and Refugee Protection Act.

Convention Refugee

A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

  • (a) is outside each of their countries of nationality 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 nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.

[Convention Refugee Immigration Protection Act S.C. 2001, c.27 s.96]

Under the Convention Refugee, claimants have to establish all the four elements below:
  1. Alienage
  2. Well-founded fear
  3. Facts to support persecution
  4. The persecution is under one of the five grounds*

(*Race / Religion / Nationality / Member of a particular social group / Political Opinion)

A person in Need of Protection
  • 97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
    • (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
    • (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
      • (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
      • (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
      • (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
      • (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.

[Convention Refugee Immigration Protection Act S.C. 2001, c.27 s.97]

Under Peron in Need of Protection, claimants are persons in Canada whose removal to their country of nationality or former habitual residence will place them at risk.  3 elements will be considered:

    1. Alienage
    2. Person Risk
    3. Face torture, risking their life, risk of cruel and unusual treatment or punishment.