As a signatory to the the 1951 United Nations Convention Relating to the Status of Refugees along with the 1967 Protocol, Canada has undertaken to protect refugees on its territory. The Convention has a very specific definition of refugee and has some important restrictions. Perhaps the most significant for claimants in Canada is that the alleged persecution must have a connection (or nexus) to one of the five listed grounds of race, religion, nationality, membership in a particular social group or political opinion. A claimant may well be able to demonstrate a legitimate fear to their life or safety in their country of origin, but if there is not a nexus to a convention ground, they will not be granted protection as a Convention refugee. In some cases a nexus to explicitly listed grounds such as race or religion may be obvious on the face of the claim. The issue of nexus is not always so straightforward and requires a more in-depth understanding of the scope of the Convention grounds and appropriate way in which to frame the fear of persecution. For example, cases of persecution based on gender or sexual orientation require an understanding of the scope of “particular social group” as it has been interpreted in Canada. In other cases, a person may be at risk on the basis of a false perception by the agent of persecution that they are a political dissident or part of a religious minority. In such cases, although the person may not identify themselves as a dissident or a member of a minority, they may still face persecution on a Convention ground.

Canada is also a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, along with a number of other international human rights instruments,which in some ways provide a broader scope of protection than the Refugee Convention. Canada’s obligations under these instruments are codified in s.97 of IRPA. Although the scope of protection under s.97 is not restricted by requiring nexus to grounds in the Refugee Convention, a claimant must meet a higher test. Under s.96, a claimant need only show that there is a serious possibility of persecution, while risk under s.97 must be demonstrated on a balance of probabilities, which is to say it more likely than not to occur.

The limitations set out in s.97(1)(b) of IRPA can also create significant impediments to individuals seeking Canada’s protection. For example, protection is not available for those who face a risk faced generally by other individuals in the country of origin. The definition and scope of generalized risk has been the subject of a great deal of discussion in the Courts and before the Board over the past decade, and the law in this area is not settled. What is clear from the jurisprudence and practice before the Board is that particularization of risk can be crucial to success in many s.97 claims.

There are a number of legal issues that commonly arise in claims under both s.96 and s.97. Two of the most common are state protection and internal flight alternative. The issue of state protection addresses the question of whether or not the claimant could obtain protection from the authorities in their home country. In many cases, this will involve demonstrating that the claimant made reasonable efforts in the circumstances to seek protection from the authorities, or proving that such protection would not have been forthcoming in any event. As the claimant will face the presumption that a state can protect its own citizens, this can often be a significant hurdle. The claimant will also need to show that there is not a part of the country where it would be reasonable to flee and where they would not face persecution. The onus is on the claimant to demonstrate that they cannot obtain state protection and that there is no internal flight alternative.

Evidence

The onus is on the claimant to provide credible evidence with respect to each of the aspects of their claim. Proof of identity, both in terms of personal identity and elements relevant to the particular claim such as religious, professional or political affiliations are crucial in almost all cases. The claimant will also be expected to present documentary evidence such as police files, court records or medical records that corroborate the allegations of risk. The claimant will usually need to present evidence of conditions in their country of origin. All evidence must be presented at least ten days before the hearing and translated into English or French. In addition, the Board will also have before it any documents provided by the Minister and a copy of the current National Documentation Package compiled by the Board for the country in question.

Engaging with issues like state protection or internal flight alternative can be complex, often requiring a claimant to engage with detailed evidence on country conditions. While the claimant may have a lived experience of the corruption and unreliable nature of the authorities in their country of origin, the Board will often prefer the “objective” evidence contained in reports from various international and governmental organizations. The ability of a claimant to effectively review hundreds of pages of detailed country condition documentation is often very limited, even in cases where they can read English.

Despite the differences between sections 96 and 97, in most respects claims under both sections are dealt with in a very similar manner before the Refugee Protection Division. There is no distinction in the process of initiating claims or the resulting status should a claim be successful. In many cases, claimants will seek to have their claims assessed under both s.96 and s.97.

Initiating a Claim

A person in Canada must make a claim to an officer who will assess whether they are eligible to do so. Claims can either be made upon arrival at a Port of Entry or once a person is already inside Canada. Inland claims are either made to an immigration officer at a CIC office or to a CBSA officer upon detention.

The officer to whom a claim is made will make a determination of eligibility, and either find the claim ineligible or refer the claim to the Immigration and Refugee Board. An individual may be ineligible to make a claim for a number of reasons including if they have made a claim in the past, have been issued a removal order or are inadmissible on grounds of security or serious criminality. Claims cannot be made at a port of entry at a land border with the United States unless the individual falls into an exception in the Safe Third Country Agreement between Canada and the United States.

There are two sets of forms that must be provided in the course of initiating a refugee claim – the eligibility forms and the basis of claim form. The eligibility forms consist of a detailed set of forms including extensive biographical and background information about the claimant and their family members, including:

  • Educational background
  • Personal history for last 10 years (employment, studies, travels, etc.), addresses
  • Military history, government positions
  • Membership in organizations
  • Method and exact route of travel to Canada, details of how travel was facilitated
  • History of arrests, detentions or interactions with police and authorities

The basis of claim form requires detailed information on the various elements of the claim. In addition to background information about departure from the country of origin and personal information, the form requests details on the elements of the claim in addition to aspects such as attempts to obtain state protection or possibilities for safe refuge within the country of origin. Omissions or inconsistencies between the information on the forms and other documentary evidence or oral testimony can have a negative impact on a claimant’s credibility.