Section 98 — Exclusion — Refugee Convention
Text of provision
A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
Plain English
Section 98 provides that persons described in Article 1E or 1F of the Refugee Convention are excluded from the definition of Convention refugee and person in need of protection. These exclusion clauses mean such persons are ineligible for refugee protection in Canada regardless of the risk they face if returned.
Article 1E excludes persons who have the rights and obligations of nationals of a third country (i.e., they already have effective protection from another state). Article 1F excludes persons who have committed crimes against peace, war crimes, crimes against humanity, serious non-political crimes outside Canada before admission, or acts contrary to the purposes of the United Nations.
Practical effect
The exclusion clauses in s 98 are applied by the RPD during a refugee claim hearing. If exclusion applies, the claimant is not eligible for protected person status. Key aspects:
- Article 1E — applies where the claimant has rights substantially similar to national rights in a third country; the standard is whether the person has effective protection and stability there
- Article 1F(a) — war crimes and crimes against humanity; the standard is serious reasons to consider the person committed such acts (lower than criminal conviction)
- Article 1F(b) — serious non-political crimes committed before admission to Canada; the seriousness and political nature of the crime are weighed
- Article 1F(c) — acts contrary to UN purposes; applies to terrorism and related conduct
- No remedy if excluded — an excluded person has no recourse through the refugee protection system, though they may apply for H&C consideration (which is not bound by s 98)
The Supreme Court of Canada addressed the Article 1F(b) standard in Febles v Canada (Citizenship and Immigration) [2014] 3 SCR 431, holding that seriousness is assessed without balancing against the severity of risk on removal.