Who can be considered as a refugee in Canada? According to the 1951 Convention Relating to the Status of Refugees, a refugee is “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion”. It seems that the definition is crystal clear and those who want to claim for protection in Canada might not be confused and say they are fit under this definition if they fear to return to their countries. However, this approach is not quite right. As in any court in any jurisdiction, one has to prove their case and courts, if they use any definition to decide cases, break it down into elements. The same case is here. I will break it down for you, my readers, to help with a better understanding of our system of determination for refugees.
So, the first requirement to be accepted as refugee is unwillingness or inability to return to the country of origin. Unwillingness must be justified by a valid reason. Inability must be justified as well, so one can ask why it is specified as “unwillingness or inability”? The answer is it can be a situation when a refugee claimant can technically return to the country where they fear persecution, but unwilling to do so due to fear. The country of origin could be a country where a refugee was born, a citizen, or someone who has a permanent residence, or even a country of “a habitual residence”. Habitual residence does not have to be a country where a person has legal status. It could be a place where one has resided a significant period of time and has intention to live there. If for example, a person is a citizen of Russia, then became citizen of Israel, two countries will be taken into examining on whether or not a refugee claimant who has fear to return to Israel, can be removed to Russia, providing they did not lose Russian citizenship. If a refugee is a stateless person (not having any citizenship and /or permanent residency status), but was habitually living in Israel, the country could be considered as a country of possible return. The idea is that anyone who seeks international protection first must be assessed on whether or not they could be safely returned to any country where they have citizenship, permanent residency or they habitually resided for a significant period of time.
Well- founded fear is another element in assessing a case of a refugee claimant. This element consists of a “subjective” and “objectively found” fear. A claimant for protection may say that she is afraid her husband will kill her, if she is returned to her country, and she might have genuine fear of him, but in order to say that she cannot return to her country, a refugee tribunal must examine the conditions in that country, whether the police and other governmental authorities take measure to protect their citizens. The protection must not be perfect as there is no perfect country, but if the police, for example, generally take domestic abuse cases seriously and prosecute offenders, and in addition, courts impose adequate punishments, it would be virtually impossible to prove that a woman, by having a subjective fear for abuse, could not be objectively protected by the authorities in her country. The element of the objective fear would be missing therefore making the refugee claim invalid.
A refugee claimant has to fall into 5 categories of persecution based on race, religion, nationality, membership of a particular social group, or political opinion. It could be the case if one falls under several or all groups, but at least one has to be present for the case to be valid. I had a case in the past where my client (he retained my firm after he lost his refugee case) presented refugee panel with a book of evidence of alleged persecution at the hands of Palestinian suicide bombers. He was claiming that he had a subjective fear to be killed in any place at the hands of terrorists. He lost his case because he was unable to prove to the panel that terrorists targeted him in particular, and not anyone in Israel. He did not belong to any of 5 groups mentioned in the 1951 Convention. However, in some cases, like Kosovo refugees, it could be enough to prove that you are, as a Muslim, likely to be killed by a Christian (or vice versa), even though you never experienced persecution personally.
