Last updated on April 4th, 2019
Last Updated on April 4, 2019 by Steven Meurrens
Section 101(d) of the Immigration and Refugee Protection Act states:
101. (1) A claim is ineligible to be referred to the Refugee Protection Division if
(a) refugee protection has been conferred on the claimant under this Act;
(b) a claim for refugee protection by the claimant has been rejected by the Board;
(c) a prior claim by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned;
(d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country;
(e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or
(f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c).
(2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless
(a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or
(b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years.
People Recognized as Refugees Elsewhere
In Aghazadeh v. Canada (Public Safety and Emergency Preparedness), 2019 FC 99, Justice Gleeson stated that the test for whether a person has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country is not the terminology of what a person is granted, but its practical effect. He wrote:
What is determinative for the purposes of paragraph 101(1)(d) is whether the protections extended by a country other than Canada arise as a result of the state having recognized the individual as a Convention refugee. Such recognition, regardless of the terminology used, triggers a state’s international legal obligations as a party to the Refugee Convention. In my view, it is this circumstance—whether a country’s international obligations have been triggered—that paragraph 101(1)(d) is intended to capture.
In Wangden v. Canada (Citizenship and Immigration), 2019 FCA 344, for example, the Federal Court of Appeal affirmed that the legal remedy or status of “withholding of removal” in the United States of America is equivalent to being “recognized as a Convention refugee” pursuant to s. 101(1)(d) of the IRPA.
The issue is not simply whether someone will be removed to a country for which they are at risk of serious harm. Rather, as Madam Justice Kane noted in Kalaeb v. Canada (Public Safety and Emergency Preparedness), 2019 FC 345, the issue is whether someone will be protected from a well-founded fear of persecution based on the grounds articulated in the 1951 Convention. In Kalaeb, Madam Justice Kane went on to note that based on the record before her subsidiary protection in Italy cannot reasonably be considered to be recognized as a “Convention refugee” for the purpose of paragraph 101(1)(d) of the IRPA.