Guidance on interpreting the definition of a Convention Refugee
This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.
A convention refugee is defined in IRPA in A96. A98, also based on the Refugee Convention, excludes from this definition persons who:
- are recognized by the authorities in the country in which they have taken residence as having the same rights and obligations of persons possessing the nationality of that country;
- have committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime outside their country of asylum prior to their admission to that country as a refugee; and
- have been guilty of any acts contrary to the purposes and principles of the U.N.
The following are some guidelines to help with the determination of whether an individual meets the definition of a Convention refugee.
In assessing a refugee application, the officer should use the definition of grounds for refugee status in the 1951 Convention: persecution is a threat to life or freedom because of race, religion, nationality, political opinion or membership in a particular social group. Other serious violations of human rights on the same grounds also constitute persecution.
Persecution may be carried out by state or non-state actors. Actions of non-state actors may constitute persecution if the authorities are unable or unwilling to protect the person concerned.
- Race includes all kinds of ethnic groups referred to as races in common usage. Frequently, it will entail membership of a specific social group of common descent.
- Persecution may take the form of laws against membership in a particular religion, public or private worship, or giving or receiving instruction in a religion. It may also involve persecution against adherents of a religion or atheists or agnostics.
- Nationality refers not only to citizenship but also membership of an ethnic or linguistic group and/ or race. Nationality may occasionally overlap with the term “race.”
- Political opinion
- Political opinion refers to alleged, imputed or known opinions contrary to, or critical of, a government or ruling party or other groups holding power. Persecution may also extend to those who hold favourable opinions of a political group that is unpopular. Although an applicant’s opinions, actions or associations will normally have come to the attention of authorities, this is not always the case. Even in the latter circumstance, persons may have a legitimate fear of persecution based on the opinions they hold if it can be reasonably assumed that, due to the strength of his/her convictions, the applicant would be persecuted by state or non-state actors.
- Particular social group
- Particular social groups are made up of persons of similar background, social status or practices. They can be groups defined by an unchangeable characteristic such as gender, sexual orientation, family or caste. They can also be groups whose members voluntarily associate for reasons so fundamental to their dignity that they should not be forced to forsake the association, such as human rights organizations or trade unions. Or they can be groups associated by a former voluntary status, unalterable due to the passage of time.
The following are examples of acts that would normally be considered grounds for granting refugee status. They may be perpetrated or tolerated by state or non-state actors for grounds cited in the Convention definition:
- slavery or servitude without compensation;
- torture and cruel, inhuman or degrading treatment;
- threat to life, liberty and security of the person; and
- arbitrary arrest, detention or exile (either outside the country or to a remote region within it).
Visa officers must bear in mind that the Convention definition is forward-looking. Therefore a former threat to life would normally need to continue to be faced by an applicant in order to constitute a well-founded fear of persecution.
The difference between persecution and discrimination
Example of persecution:
- a flagrant violation of a basic right, such as denial of a fair and impartial trial, particularly when combined with unduly severe punishment, is usually considered persecution;
- a threat to life or freedom
Example of discrimination:
- denial to individuals of promotion or access to post-secondary education are examples of discrimination, not persecution. The systematic denial to a group of promotion or access to post-secondary education, however, constitutes persecution;
- acts of violence which are often accompanied by death threats; a series of hostile acts over a long period of time, often affecting physical safety (Canada v. Kadenko (1996), 143 D.L.R. (4th) 532);
- the Federal Court of Canada has stated that ‘the cumulative effects of discrimination and harassment may fulfil the definitional requirements of persecution in some circumstances, even where each incident of discrimination or harassment taken on its own would not’. (Liang, 2008 FC 450)
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and the UNHCR Resettlement Handbook provide a detailed interpretation of the Convention definition.
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