Person in need of protection
Statutory definition
(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.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
Immigration and Refugee Protection Act, SC 2001, c 27, s 97
Explanation
The person in need of protection category under IRPA s 97 is a complementary protection ground alongside the Convention refugee definition in IRPA s 96. It captures persons who face risks of torture (under the Convention Against Torture) or risks to life or cruel and unusual treatment that do not fall within the five Convention refugee grounds.
A key distinction from the Convention refugee definition is that IRPA s 97(1)(b) requires the risk to be faced personally — not a risk faced generally by all individuals in or from the country — and the risk must exist in every part of the country (no internal flight alternative).
How this term is used
Claims for protection under ss 96 and 97 are assessed together by the Refugee Protection Division (RPD). An RPD member may determine that a claimant qualifies as a person in need of protection under s 97 but not as a Convention refugee under s 96, or vice versa. Both determinations result in the conferral of refugee protection under IRPA s 95(1)(b). Persons excluded from refugee protection under IRPA s 98 (which incorporates Articles 1E and 1F of the Refugee Convention, covering persons who have committed war crimes, crimes against humanity, or serious non-political crimes) are not eligible for either ground.