Establishing that Someone is a Refugee

Section 96 of Canada’s Immigration and Refugee Protection Act (the “IRPA) defines a refugee as being 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, 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.  A refugee also includes though who do not have a country of nationality, but who are outside of their country of former habitual residence, and, because of the same fear, are unwilling to return to that country.

Refugee law is very complicated, and components of it are the subject of numerous blog posts on this website.

In this post, I hope to cover some of the major jurisprudence involving the interpretation of IRPA s. 96.

Past Persecution vs. A Future Fear

It is important to understand that refugees need to have a forward looking fear of returning to their country of origin.  The existence of past persecution will not create a rebuttal presumption that someone have a reasonable objective or subjective fear of persecution.

In Fernandopulle v. Canada (Minister of Citizenship and Immigration), 2005 FCA 91, the Federal Court of Appeal explicitly held that a person establishes a refugee claim by proving the existence of a well-founded fear of persecution for one of the reasons listed in section 96 of the IRPA and that proof of past persecution for one of the listed reasons may support a finding of fact that the claimant has a well-founded fear of persecution in the future, but it will not necessarily do so. If, for example, there is evidence that country conditions have changed since the persecution occurred, that evidence must be evaluated to determine whether the fear remains well founded.


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