Canada's Immigration and Refugee Protection Act (IRPA) defines refugee protection by reference to two distinct provisions: section 96 (the Convention refugee definition, drawn from the 1951 Refugee Convention) and section 97 (persons in need of protection, covering risks not captured by the Convention definition). Section 96 requires that the claimant face persecution for a reason connected to one of the five Convention grounds — race, religion, nationality, political opinion, or membership in a particular social group. Section 97 does not require this nexus: it covers persons who face a risk of torture under the Convention Against Torture (s97(1)(a)), or a risk to life or cruel and unusual treatment that is personal to them and not a risk generally faced by others in the country (s97(1)(b)). Despite the different legal paths, a person found to qualify under either or both provisions receives the same outcome — protected person status — with the same rights to permanent residence and non-refoulement. This page explains the key differences between s96 and s97, the nexus requirement, the personalized risk requirement, and how the RPD applies both grounds.

For current IRB guidance on the Convention refugee and person in need of protection definitions, refer to the IRB legal concepts — persons in need of protection page.

• Immigration and Refugee Protection Act, s 96 — Convention refugee definition: a person outside their country of nationality who has a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion
• IRPA, s 97(1)(a) — person in need of protection: a person in Canada whose removal to any country would subject them personally to a risk of torture within the meaning of Article 1 of the Convention Against Torture
• IRPA, s 97(1)(b) — person in need of protection: a person in Canada whose removal would subject them personally to a risk to life or to a risk of cruel and unusual treatment or punishment — where the risk is not faced generally by other individuals in the country and there is no adequate state protection
• 1951 Convention Relating to the Status of Refugees — the underlying international instrument defining the Convention refugee standard adopted in s96
• Convention Against Torture, Article 1 — the definition of torture adopted for s97(1)(a) purposes
• IRB: Persons in need of protection (Chapter 14) — irb-cisr.gc.ca/persons-need-protection

Section 96 — Convention refugee: the nexus requirement

To establish refugee status under section 96, the claimant must show:

1. A well-founded fear of persecution — both a subjective fear and an objective basis for that fear in country conditions
2. The persecution must be by reason of one or more of the five Convention grounds:
   • Race
   • Religion
   • Nationality
   • Membership in a particular social group (PSG)
   • Political opinion
3. The persecution must be serious enough to amount to persecution — not merely discrimination or harassment; the harm must be substantial
4. The claimant must be outside their country of nationality (or habitual residence, for stateless persons) or be in Canada having fled persecution

The nexus to a Convention ground is the critical element that distinguishes s96 from s97. A claimant who fears gang violence, for example, may not have a straightforward s96 claim — gang violence is not persecution "for" race, religion, etc. unless the claimant can establish that they are targeted because of membership in a PSG or another Convention ground. For the five grounds in detail, see the refugee five grounds page.

Section 97(1)(a) — risk of torture

Section 97(1)(a) protects persons who would face torture if removed to their country. Key features:

• No nexus to Convention ground required: the risk of torture need not be connected to the claimant's race, religion, nationality, political opinion, or PSG membership — the protection is purely risk-based
• Torture defined by the CAT: the definition of torture in the Convention Against Torture, Article 1, is adopted — torture requires severe pain or suffering inflicted by or with the acquiescence of a state official or person acting in an official capacity
• No exceptions for national security: unlike the Refugee Convention, the CAT prohibition on refoulement to torture is absolute — there is no exception for persons who pose a national security threat; this is a key distinction between s97(1)(a) and s96
• Personalized risk required: the risk must be to the individual claimant — not a theoretical or generalized risk

Section 97(1)(b) — risk to life or cruel and unusual treatment

Section 97(1)(b) provides a broader ground: protection from removal to a country where the person would personally face a risk to their life or a risk of cruel and unusual treatment or punishment. The requirements are:

• Personal risk: the risk must be faced personally by the claimant — the text of s97(1)(b) uses the word "personally" to emphasise this
• Not a generalized risk: the risk must not be one faced generally by other individuals in the country — a risk that everyone in a country faces equally (such as civil war affecting the entire population) does not, on its own, qualify under s97(1)(b); the risk must be specific to the claimant or a particular group to which they belong
• State protection inadequate: the person must be unable to obtain adequate protection from their state
• Not self-created risk: the risk cannot be one that the person voluntarily created themselves, unless the person can show that the risk arises from circumstances beyond their control

The generalized risk exclusion in s97(1)(b) is frequently litigated — the Federal Court has addressed many cases concerning whether a risk of violence from criminal organizations or civil conflict is "personalized" or "generalized."

Same outcome under s96 and s97

A person found to be a Convention refugee under s96, or a person in need of protection under s97, receives the same legal status — protected person status. The consequences are identical:

• The right to remain in Canada and protection from removal (non-refoulement)
• The right to apply for permanent residence as a protected person
• Access to IFHP health coverage and other federal benefits available to protected persons
• The ability to apply for a refugee travel document (Convention Travel Document) for s96 refugees

The RPD's decision will specify whether protection is granted under s96, s97, or both. A claimant is assessed simultaneously under both provisions.

The s96/s97 distinction is important in practice for several reasons. First, many claimants who cannot establish a Convention nexus for their fear (particularly those fleeing gang violence, generalised criminal violence, or civil conflict without a clear political or social group targeting) must rely on s97(1)(b) — but must overcome the "not a generalized risk" requirement, which is a significant hurdle. The Federal Court's jurisprudence on what constitutes a personalised versus generalised risk in gang violence contexts (particularly from Central American countries) has been extensive. Second, the absolute nature of the s97(1)(a) torture protection (no national security exception) is significant for claimants who are inadmissible on security grounds — they cannot be removed to torture even if otherwise excludable. Third, at the PRRA stage (Pre-Removal Risk Assessment), rejected claimants who did not raise s97 grounds at the RPD may be able to raise new risk grounds under s97 in the PRRA if those risks emerged after the RPD decision. For the current IRB legal framework for persons in need of protection, refer to the IRB Chapter 14 on persons in need of protection.