Section 96 — Convention refugee
Text of provision
A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
Plain English
Section 96 incorporates the definition of refugee from the 1951 Convention Relating to the Status of Refugees into Canadian law. A Convention refugee is a person who:
- is outside their country of nationality (or, if stateless, their country of former habitual residence);
- has a well-founded fear of persecution;
- the persecution is for reasons of race, religion, nationality, membership in a particular social group, or political opinion (the five Convention grounds); and
- is unable or, owing to fear, unwilling to avail themselves of the protection of their country of nationality.
The "well-founded fear" test has both a subjective component (the claimant must actually fear persecution) and an objective component (the fear must be supported by objectively credible evidence of a risk of persecution).
Practical effect
Refugee claims in Canada are assessed by the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB). The RPD applies s 96 and s 97 to determine whether a claimant is a Convention refugee or person in need of protection.
State protection is a key consideration — a claimant must demonstrate that they cannot avail themselves of state protection in their country of nationality. Where state protection is adequate, a refugee claim will fail even if there is a subjective fear of persecution.
Internal flight alternative (IFA) is also considered — if the claimant could safely and reasonably relocate within their country, the claim may fail.