Refugee Protection Grounds (ss 96–97)

Canadian refugee protection is available on two grounds, both established in the Immigration and Refugee Protection Act (IRPA):

1. Convention refugee (s 96) — based on the 1951 Refugee Convention and its 1967 Protocol;
2. Person in need of protection (s 97) — a complementary protection ground covering persons who face risks not captured by the Convention definition.

A claimant who establishes either ground is recognised as a "protected person" and may apply for permanent residence in Canada.

Section 96 of IRPA gives effect to Canada's obligations under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol. Section 97 provides a complementary protection ground that covers risks under the Convention Against Torture and the International Covenant on Civil and Political Rights (ICCPR), specifically the right to life and protection from cruel, inhuman, or degrading treatment.

Section 96 — Convention Refugee

A Convention refugee is a person who, owing to a well-founded fear of persecution for reasons of one of the five Convention grounds, is outside their country of nationality and is unable or unwilling to return to it:

• Race
• Religion
• Nationality
• Membership in a particular social group (PSG)
• Political opinion

The well-founded fear test has a subjective component (the claimant genuinely fears persecution) and an objective component (the fear is objectively well-founded based on country conditions and the claimant's personal profile). A "serious possibility" of persecution is sufficient — the standard is lower than a balance of probabilities.

State protection and the internal flight alternative (IFA) are defences the Minister or RPD may raise — if adequate state protection or a viable IFA exists, the claim fails even if persecution is otherwise established.

Section 97 — Person in Need of Protection

A person in need of protection is one who, if removed to their country of origin, would personally be subject to a danger of:

• Torture (within the meaning of the Convention Against Torture); or
• A risk to their life or a risk of cruel and unusual treatment or punishment — but not if the risk is faced generally by all persons in the country (the risk must be personal).

Unlike s 96, s 97 does not require a Convention ground — the risk can arise for any reason. However, the risk must be personal: generalized risks (e.g., generalised violence affecting the whole population equally) do not qualify under s 97.

Overlap

Many claims are assessed under both s 96 and s 97. The RPD considers both grounds and may grant protection under either or both. A claimant protected under s 96 may also be protected under s 97 and vice versa. A negative finding under s 96 does not foreclose a finding under s 97.