Pre-removal risk assessment (PRRA): Interpreting section A96

On this page

• Immigration and Refugee Protection Act (IRPA) section 96
• Well-founded fear
  • Objective and subjective fear
  • Standard of proof
  • Legal test to establish a risk of persecution
  • Past and future persecution
• Persecution
  • Assessing persecution cases involving prosecution
  • Assessing the reason for persecution - Nexus
• Race
• Religion
• Nationality
• Membership in a particular social group
• Political opinion

Immigration and Refugee Protection Act (IRPA) section 96

The IRPA defines section 96 as follows:

Convention refugee

96 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.

Well-founded fear

At the core of the definition of “Convention refugee” is the requirement that the applicant demonstrate a well-founded fear of persecution in the country of origin. The phrase “well-founded fear” has been interpreted as having 2 components:

• a fear of persecution, felt subjectively
• the well-foundedness of the fear, tested objectively

Objective and subjective fear

The subjective component relates to the applicant’s perception of persecution in the country referenced. While this is internal to the person, the applicant’s actions should be consistent with and indicative of a subjective fear. Relevant factors with respect to the question of subjective fear include:

• delay in leaving the country of risk
• failure to seek protection at the first reasonable opportunity
• failure to seek protection in other countries
• delay in making a refugee claim upon arrival in Canada
• re-availment of state protection
• re-establishment in the country of risk

If the applicant does not demonstrate the presence of their subjective fear (or if after a hearing, the applicant is found to be not credible on this aspect), it could be held that there is no subjective basis for the application. The application could be rejected even if there is extensive evidence of human rights violations in the country referenced.

Focus should be put on the objective basis of the fear of persecution. Once it has been established that a person has an objective basis of fear of persecution, it is conceivable that the applicant also presents a subjective fear. The evidence required to meet the objective basis of the fear of persecution may include the applicant’s testimony, as well as documentary evidence of country conditions.

Standard of proof

Applicants must establish the factual elements of their claim on a balance of probabilities.

For more information on the standard of proof, see Processing procedures and guidelines.

Legal test to establish a risk of persecution

Despite the fact that applicants must establish the factual elements of their risk allegations on a balance of probabilities, they do not need to prove that persecution would be more likely than not.

The test for well-foundedness of fear of persecution is objective, based on objective evidence about conditions in the country of alleged risk, particularly the country’s human rights record. The nature of the test for well-founded fear of persecution is described in terms of “reasonable chance” or “serious possibility”. Is there a reasonable chance, but more than a mere possibility that persecution would take place were the applicant to return to that country?

Past and future persecution

Applicants need not show that they have been persecuted in the past in order to establish a well-founded fear of persecution. However, past events related by the applicant, together with all the other evidence, including country conditions at the time of the decision, may show that the applicant would be objectively at risk if returned. Thus, the test is forward looking, except where there are compelling reasons based on past persecution for granting protection. United Nations 1951 Convention relating to the Status of Refugees (Refugee Convention), supplemented by its 1967 Protocol states in paragraph C (6) of Article 1:

Provided that this paragraph shall not apply to a refugee falling under A (1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.

The applicant may not be able to present evidence of past persecution. However, the applicant could present evidence of persecution of persons in similar situations, in the country referenced, to substantiate a fear of future persecution. Such persons may be family members, political associates, and members of the same social class, race, religion, or ethnic group.

Persecution

Persecution is 1 of the key elements of the Convention refugee definition. The term “persecution” is not defined in the Refugee Convention or in the Act. The Court has defined “persecute” as “[t]o harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently” Rajudeen v. Minister of Employment and Immigration, (1984) 55 NR 129 (FCA).

It is necessary to determine whether or not the harassment or sanctions that the applicant fears are sufficiently serious to constitute persecution. Threats to a person’s life and freedom for 1 of the reasons in the definition will constitute persecution, and so would violations of other fundamental human rights. Other sanctions against the person may or may not be persecution. The sanctions need not be against the person, but they can encompass acts committed against the person’s family or similarly situated persons. Minor forms of harassment, such as in employment discrimination, may not be sufficiently serious to constitute persecution.

In Retnem v. Minister of Employment and Immigration, (1991) 132 NR 53 (FCA), the Federal Court of Appeal established that it is a reviewable error not to consider the cumulative effect of discrimination or harassment in order to determine whether it amounts to persecution. In some cases, the cumulative effect of discrimination or a series of incidents constitutes persecution. That being said, discrimination is usually not sufficient to constitute persecution. The United Nations High Commission for Refugees (UNHCR) Handbook notes that there may be situations in which the cumulative effect of acts of discrimination may reach the level of severity needed to constitute persecution even though the instance of discrimination would not meet this threshold if viewed independently. In Liang v. Canada (Citizenship and Immigration), 2008 FC 450, the Court confirmed that the cumulative effects of discrimination and harassment may fulfill the definitional requirements of persecution in some circumstances, and the determination of what constitutes persecution involves an analysis of many factors including persistence, seriousness and the quality of the alleged incidents.

Not all harm inflicted against a person will justify protection. In some cases, the harm might be so trivial as to not justify granting protection. In others, the harm might be a product of security measures of a non-discriminatory nature directed at the entire population. In some cases, however, a law of general application may be persecutory in nature. The Federal Court of Appeal dealt with this issue in the context of military service in Zolfagharkhani v. Minister of Employment and Immigration, (1993) 155 NR 311 (FCA) and in Al-Maisri v. Minister of Employment and Immigration, (1995) 183 NR 234 (FCA), and in the context of exit laws in Valentin v. Canada (Minister of Employment and Immigration) (C.A.), [1991] 3 FC 390.

The State itself need not be the direct perpetrator. The key issue is to evaluate the effectiveness of state protection on the ground.

Assessing persecution cases involving prosecution

In cases of prosecution, the particular circumstances must be assessed. The prosecution must be serious enough to qualify as persecution. If there is evidence that the prosecution is linked to the applicant’s race, religion, nationality, membership in a social group or political opinion, the following considerations may be relevant:

• the nature of the law that the applicant has violated (if compliance with a law results in a violation of an international legal norm, prosecution may be persecutory)
• the nature of the law under which the person will be prosecuted (arbitrarily punishing acceptable behaviour may be persecutory)
• whether the punishment for the offence is disproportionate to the offence itself
• the human rights record of the prosecuting country
• the status of the country’s judicial system
• the motivation of the government in pursuing prosecution
• the motivation of the applicant when the offence was committed

Assessing the reason for persecution – Nexus

Under the Convention refugee definition, it is necessary to determine whether the harm is inflicted for 1 of the reasons set out in the definition. The injury feared must be linked to the applicant’s:

• race
• religion
• nationality
• membership in a particular social group
• political opinion

If there is no clear linkage, the applicant will not meet the definition of a Convention refugee. In some cases involving situations of civil strife, for instance, the conclusion may be that the fear is a fear of generalized oppression and is not in some way directed against the person or group for reasons of race, religion, nationality, membership in a particular social group or political opinion.

Race

In the Handbook of Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the status of Refugees, racial persecution is defined as:

68. Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.

69. Discrimination on racial grounds will frequently amount to persecution in the sense of the 1951 Convention. This will be the case if, as a result of racial discrimination, a person's human dignity is affected to such an extent as to be incompatible with the most elementary and inalienable human rights, or where the disregard of racial barriers is subject to serious consequences.

70. The mere fact of belonging to a certain racial group will normally not be enough to substantiate a claim to refugee status. There may, however, be situations where, due to particular circumstances affecting the group, such membership will in itself be sufficient ground to fear persecution.

Religion

In the Handbook of Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the status of Refugees, religious persecution is defined as:

71. The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right includes the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

72. Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

73. Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.

Nationality

In the Handbook of Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the status of Refugees, persecution due to nationality is defined as:

74. The term “nationality” in this context is not to be understood only as “citizenship”. It refers also to membership of an ethnic or linguistic group and may occasionally overlap with the term “race”. Persecution for reasons of nationality may consist of adverse attitudes and measures directed against a national (ethnic, linguistic) minority and in certain circumstances the fact of belonging to such a minority may in itself give rise to well-founded fear of persecution.

75. The co-existence within the boundaries of a State of two or more national (ethnic, linguistic) groups may create situations of conflict and also situations of persecution or danger of persecution. It may not always be easy to distinguish between persecution for reasons of nationality and persecution for reasons of political opinion when a conflict between national groups is combined with political movements, particularly where a political movement is identified with a specific “nationality”.

76. Whereas in most cases persecution for reason of nationality is feared by persons belonging to a national minority, there have been many cases in various continents where a person belonging to a majority group may fear persecution by a dominant minority.

Membership in a particular social group

The Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 SCR 689 (Ward), has noted that the meaning of “particular social group” should take into account the general underlying themes of human rights and anti-discrimination that form the basis for the international refugee protection initiative. There are 3 possible categories:

• groups defined by an innate or unchangeable characteristic
• groups whose members voluntarily associate for reasons fundamental to their human dignity that they should not be forced to forsake the association
• groups associated by a former voluntary status, unalterable due to its historical permanence

In Ward, the Supreme Court explicitly held that persecution based upon a person’s gender could sustain a claim to refugee status. However, the Court did not say that gender in and of itself was sufficient to define a particular social group. The Court has held that particular subcategories of women such as abused women and women subject to domestic violence constitute a particular social group. The Court has also held that women who are subject to enforced sterilization constitute a social group. Recognition of gender as a basis for refugee protection has not been confined to claims made by women. The Immigration and Refugee Board of Canada (IRB) has developed gender consideration guidelines, which PRRA decision makers should consult for further assistance in their decision making.

Political opinion

Political opinion has been defined by the Supreme Court of Canada in Ward. The Court adopted Professor Guy Goodwin-Gill’s definition of: "any opinion on any matter in which the machinery of state, government, and policy may be engaged." The Court added 2 refinements: First, the political opinion need not have been expressed outright. It can be imputed to the applicant on the basis of his or her actions. Second, the political opinion ascribed to the applicant does not necessarily need to conform to his or her true beliefs.

The assessment should be approached from the perspective of the agent of persecution. Although victims of crime do not generally fall within the scope of a particular social group as defined in Ward, there are some situations in which the definition of political opinion may apply. The Federal Court of Appeal dealt with this issue in Klinko v. Canada (Minister of Citizenship and Immigration) (T.D.), [2000] 3 FC 327, concluding the denunciation of misconduct by public officials can qualify as political opinion, provided that the machinery of state, government and policy “may be engaged”.

However, risk attributable to a private vendetta or personal vengeance on the part of a government official may constitute criminal activity, but not persecution. The IRB website refers to jurisprudence in the Interpretation of Convention Refugee and Person in need of Protection in the Case Law. Chapter 4, entitled Grounds of persecution – Nexus, details many cases and references to assist in establishing whether such activity reaches the level of persecution.

For information on state protection and internal flight alternatives, see Processing procedures and guidelines.