Last updated on May 10th, 2019
Last Updated on May 10, 2019 by Steven Meurrens
Refugee practitioners colloquially refer to their clients as being either s. 96 or s. 97 Immigration and Refugee Protection Act (“IRPA“) refugees.
Section 96 of IRPA provides that a person can claim asylum in Canada if they establish a nexus between a risk of persecution and a ground of refugee status under the 1951 Convention. They must also then demonstrate a serious possibility that they would be persecuted on the basis of that Convention ground. The claimant does not need to show that they have faced persecution in the past, as persecution under IRPA s. 96 can be established by examining the treatment of similarly situated individuals.
Section 97, meanwhile, provides that a person who is in need of protection shall also be afforded protection in Canada.
Section 97 states:
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
The Standard of Proof
The standard of proof for such applications is the balance of probabilities. However, although an applicant has to establish his case on a balance of probabilities, he does not nevertheless have to prove that persecution would be more likely than not. In other words, the chance is not necessarily more than a 50 percent chance, but more than a minimal possibility.
Source: Li v. Canada, 2005 FCA 1
Torture “believed on substantial grounds to exist”
Although the standard of proof for s. 97 is the balance of probabilities, this is distinct from the test to be met under s. 97(1)(b) of the Act. The requisite degree of danger of torture envisaged by the expression “believed on substantial grounds to exist” is that the danger of torture is more likely than not. The degree of risk under paragraph 97(1)(b) is that the risk is more likely than not, which is also expressed as the balance of probabilities.
Although the wording of this test is equivalent to the wording of the legal test to be met in order to be entitled to protection under paragraph 97(1)(a), the two are distinct steps. Proof on a balance of probabilities is the standard the RPD will apply in assessing the evidence adduced before it for purposes of making its factual findings. The test for determining the danger of torture is whether, on the facts found by the RPD, the RPD is satisfied that it is more likely than not that the individual would personally be subjected to a danger of torture.
Source: Li v. Canada, 2005 FCA 1
Standard of Proof for s. 97(1)(b)
The standard of proof for s. 97(1)(b) is the same as for s. 97(1)(a).