Non-refoulement in Canadian law
Overview
Section 115 of the Immigration and Refugee Protection Act (IRPA) codifies the non-refoulement principle: a protected person (a Convention refugee or person in need of protection) shall not be removed to a country where they would be at risk of persecution or other serious harm. The protection is not absolute — it does not apply where the person is a danger to the security of Canada, or where the person has committed serious crimes and constitutes a danger to the public in Canada.
Non-refoulement is a cornerstone of international refugee law, derived from Article 33 of the 1951 Convention Relating to the Status of Refugees. Canada's implementation under s 115 extends protection to both Convention refugees and persons in need of protection (persons facing torture or cruel and unusual treatment, as defined in s 97 of IRPA).
Unlike Australia's s 197C, Canadian law does not contain an equivalent provision that separates domestic removal obligations from non-refoulement obligations. The s 115 protection is a substantive constraint on the removal power.
Legal basis
- IRPA s 115(1) — a protected person shall not be removed to a country where they would be at risk of persecution (under s 96), or risk to life, torture, or cruel and unusual treatment (under s 97)
- IRPA s 115(2) — exceptions: s 115(1) does not apply where the person is inadmissible on grounds of serious criminality and is a danger to the public in Canada (under s 36(1)), or where the person is inadmissible on security grounds and constitutes a danger to the security of Canada
- IRPA s 96 — Convention refugee definition (which feeds into s 115 protection)
- IRPA s 97 — person in need of protection (additional non-refoulement protection for persons at risk of torture, life threat, or cruel/unusual treatment)
- IRPA s 112–113 — Pre-Removal Risk Assessment (PRRA), which assesses non-refoulement risk before removal
How it works
Who is protected by s 115?
Section 115 protection applies to a "protected person" — a person who has been recognised as a Convention refugee or a person in need of protection by the Refugee Protection Division (RPD) or the Refugee Appeal Division (RAD). It does not apply to asylum seekers who have not yet had their claim determined.
The s 115(2) exceptions
Section 115 protection is not absolute. It does not apply where:
- The person is inadmissible under s 36(1) (serious criminality) and the Minister is of the opinion they are a danger to the public in Canada; or
- The person is inadmissible under s 34 (security) or s 35 (human rights violations) and constitutes a danger to the security of Canada
The "danger to the public" or "danger to the security of Canada" opinion must be issued by the Minister (or a delegate). This is a significant step — it is not automatic upon a finding of inadmissibility.
Non-refoulement and the PRRA
The Pre-Removal Risk Assessment (PRRA) is the mechanism for assessing non-refoulement risk before a person who has not been found to be a protected person is removed from Canada. PRRA applicants must demonstrate that they would face risks in their country of removal under s 96 or s 97. Persons who have had a refugee claim determined are generally not eligible for a PRRA unless new evidence arises.
International obligations
Canada is bound by Article 33 of the Refugees Convention, Article 7 of the ICCPR (prohibition on torture), and Article 3 of the Convention Against Torture. Section 115 is intended to implement these obligations in domestic law. In cases where s 115(2) applies, Canada's international obligations may still constrain removal — the Federal Court has jurisdiction to review danger opinions and removal decisions on the basis of international law compliance.