Last Updated on December 14, 2010 by Steven Meurrens

The Supreme Court of Canada (“SCC“) in Németh v. Canada (“Nemeth“) addressed whether a person who had successfully claimed refugee protection in Canada could be extradited back to his home country.  The SCC ultimately decided that the government could extradite refugees so long as a proper analysis under section 44 of the Extradition Act was carried out.  In reaching its decision, the SCC made several statements about refugee law in Canada, particularly with respect to non refoulement, which were:

[19]  Stated in broad and general terms, the principle of non-refoulement prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations. The object of the principle is the prevention of human rights violations and it is prospective in scope: Kees Wouters, International Legal Standards for the Protection from Refoulement (2009), at p. 25.

[50] Under the Refugee Convention, refugee status depends on the circumstances at the time the inquiry is made; it is not dependent on formal findings.  As one author puts it, “it is one’s de facto circumstances, not the official validation of those circumstances, that gives rise to Convention refugee status”: James C. Hathaway, The Rights of Refugees under International Law (2005), at pp. 158 and 278. It follows that the rights flowing from the individual’s situation as a refugee are temporal in the sense that they exist while the risk exists but end when the risk has ended.  Thus, like other obligations under the Refugee Convention, the duty of non-refoulement is “entirely a function of the existence of a risk of being persecuted [and] it does not compel a state to allow a refugee to remain in its territory if and when that risk has ended”:  Hathaway, at p. 302; R. (Yogathas) v. Secretary of State for the Home Department, [2002] UKHL 36, [2003] 1 A.C. 920, per Lord Scott of Foscote, at para. 106.  The relevant time for assessment of risk is at the time of proposed removal: Hathaway, at p. 920; Wouters, at p. 99. This temporal understanding of refugee status under the Refugee Convention does not support the “binding effect” approach to earlier formal findings of refugee status.

[51] In addition, to the extent that this “binding effect” argument is based on the need for a particular procedural approach, that position is not supported by Canada’s obligations under the Refugee Convention. The Refugee Convention does not contain specific procedural provisions. While it does provide that refugees shall have free access to the courts (Article 16) and due process in relation to expulsion decisions (Article 32), it does not bind the contracting states to any particular process for either granting or withdrawing refugee status.  Thus, Canada’s international undertaking with respect to non-refoulement does not commit it to any particular procedural scheme for its application in extradition matters.

The SCC’s statement that obtaining refugee status does not confer permanent protection because the principle of non-refoulement is concerned with current conditions as opposed to those that exist at a given point in time suggests that prohibiting designated refugees from applying for permanent resident status would not breach the constitution if doing so did not result in a person being repatriated to persecution.