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Canadian Refugee Procedure, 95-97 - Refugee Protection, Convention Refugees and Persons in Need of Protection

IRPA Sections 95-97

Sections 95-97 of the Immigration and Refugee Protection Act read:

DIVISION 1

Refugee Protection, Convention Refugees and Persons in Need of Protection

Conferral of refugee protection
95 (1) Refugee protection is conferred on a person when
(a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons;
(b) the Board determines the person to be a Convention refugee or a person in need of protection; or
(c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection.

Protected person
(2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4).

Convention refugee
96 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.

Person in need of protection
97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.

Section 95(1): Refugee protection is conferred on a person in three specified situations

Section 95(1) of the IRPA provides that refugee protection is conferred on a person in three specified circumstances: (i) they become a protected person through resettlement (section 95(1)(a) of the IRPA), (ii) they are found to be a refugee by the Immigration and Refugee Board (IRB) (section 95(1)(b) of the IRPA), and (iii) they have a positive pre-removal risk assessment (PRRA) (section 95(1)(c) of the IRPA).1] This subsection of the IRPA provides an exhaustive list of scenarios where refugee protection is conferred.[2] This provision has been summarized as follows: in accordance with subsection 95(1) of the IRPA, Canada currently confers refugee protection, and thus protected person status, in essentially one of two ways: (i) by determining that an individual is a member of one of the classes prescribed in Division 1 of Part 8 of the IRPR (e.g., the CRA class under sections 144 and 145 of the IRPR: [Canadian Refugee Procedure/IRPR ss. 138-151.1 - Convention Refugees Abroad, Humanitarian-protected Persons Abroad and Protected Temporary Residents), and granting them permanent or temporary residency; or (ii) by determining that an individual is a Convention refugee or a person in need of similar protection, and accepting their inland refugee claim or application for protection.[3] While the latter is currently done by the Refugee Protection Division, it was previously done by the Convention Refugee Determination Division.[4] Persons who become members of the Convention Refugees Abroad class because of their family status are not conferred refugee protection if they are never themselves determined to be Convention refugees by the government.[5]

Section 95(2): Refugee protection is conferred on a person in the specific circumstances and it ceases as specified in s. 95(2)

A question can arise about how these provisions interact with Canadian citizenship. In Canada v. Zaric, the court concluded that Mr. Zaric automatically ceased to be a Convention refugee under international law when he acquired Canadian citizenship. However, this did not mean that he automatically ceased to be a protected person under Canadian domestic law, specifically subsection 95(2) of the IRPA.[6]

97(1)(b)(iv): The humanitarian and compassionate process applies to those who face a risk to their lives as a result of a country's inability to provide adequate health or medical care

The humanitarian and compassionate process set out in s. 25 of the IRPA applies to, among others, those who face a risk to their lives as a result of a country's inability to provide adequate health or medical care. It specifically provides an exception to the bar on past refugee claimants applying for permanent residence on humanitarian and compassionate reasons for this reason. See: Canadian Refugee Procedure/25 - Humanitarian and compassionate considerations — request of foreign national.

References

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