Non-Refoulement in Canadian Refugee Law

Amina, a young nurse from Sudan, arrives in Toronto carrying only hope and a battered suitcase. She knows little about the laws that protect her, but she fears what would happen if she ever had to return home. Her story mirrors the journey of many others who count on Canada’s commitment to non-refoulement to protect them from persecution and harm. Understanding this principle is crucial for anyone working with refugees or concerned about human rights.

Understanding Non-Refoulement

Non-refoulement [non ruh-FOOL-mohn] is a core principle in international and Canadian law. It protects people from being sent back to a country where they could face threats to their life or freedom. This principle applies regardless of someone’s race, religion, nationality, social group, or political opinion. It also covers the risks of torture, cruel treatment, or punishment.

Non-refoulement is more than just a guideline. It is a binding obligation for countries that have joined the 1951 Refugee Convention and its 1967 Protocol. Even countries that have not signed these treaties often adhere to the principle of non-refoulement as part of customary international law. Therefore, the principle stands as a minimum global standard to protect human dignity.

International bodies, such as the United Nations, have expanded the concept of non-refoulement to encompass serious violations of rights, including a lack of medical care or degrading living conditions that pose a risk to life or freedom. Canada has adopted a broad approach to this duty, recognizing that even in emergencies or war, this principle cannot be ignored.

Canadian Commitment to Non-Refoulement

Canada is known for its strong stance on non-refoulement. The country’s legal framework, including the Immigration and Refugee Protection Act (IRPA), makes this principle a central part of the refugee protection system. Section 115(1) of the IRPA states that protected persons or recognized refugees will not be sent back to countries where they could face persecution, torture, or cruel and unusual treatment.

Canadian courts, particularly the Supreme Court, have frequently emphasized the principle of non-refoulement as a fundamental legal constraint. When IRPA provisions are unclear, courts tend to favour interpretations that align with the principle of non-refoulement. This ensures Canada fulfils its international duties while protecting vulnerable people within its borders.

International Treaties and Canadian Obligations

Before we explore the main international treaties and laws relevant to non-refoulement, it is helpful to know what each one covers. The 1951 Refugee Convention (and the 1967 Protocol) outlines who is considered a refugee and the protections they are entitled to. The Convention Against Torture (CAT) ensures no one is sent to a country where they risk torture. Lastly, customary international law requires all countries to respect the principle of non-refoulement, even if they have not signed these specific treaties.

The Refugee Convention and Protocol

The 1951 Refugee Convention, together with the 1967 Protocol, defines who is a refugee and what protection they deserve. Article 33(1) of the Convention strictly prohibits returning any refugee to a territory where their life or freedom would be threatened. However, there are narrow exceptions. For instance, a refugee may lose this protection if they pose a serious danger to Canada’s security or have committed serious crimes.

Article 33 – Prohibition of expulsion or return (“refoulement”)

1. No Contracting State shall expel or return (” refouler “) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

The 1967 Protocol expanded the scope of refugee protection beyond events before 1951, ensuring that modern and future challenges are also covered.

The Convention Against Torture

Canada also follows the Convention Against Torture (CAT), which bans sending anyone to a country where they risk torture. This protection applies regardless of a person’s status or the reason for risk. The CAT is monitored by the United Nations Committee against Torture, which keeps countries accountable.

Non-Refoulement as Customary International Law

Non-refoulement is considered a fundamental part of international law. Even if a country does not join specific treaties, it must still respect this rule. Canadian courts interpret domestic laws with the presumption that they should align with international standards unless Parliament clearly decides otherwise.

How Non-Refoulement Works in Canadian Law

Section 115 of the IRPA incorporates the principle of non-refoulement into Canadian law. Protected persons cannot be removed to a country where they would face a serious risk of harm. The law mirrors international rules but includes exceptions for security, serious criminality, or human rights violations. Nonetheless, these exceptions are interpreted narrowly.

Section 3(2) of the IRPA outlines the objectives behind Canada’s refugee program:

• Saving lives and offering protection
• Fulfilling international obligations
• Providing safe haven to those at risk of persecution or torture

These objectives guide decision-makers to interpret the law with a strong humanitarian focus.

Refugee Claim Process

Canada has a detailed process for refugee claims. People can claim protection inside or outside Canada, but not if they are already under a removal order. After a claim is submitted, Immigration, Refugees, and Citizenship Canada (IRCC) check if the claim is eligible. If eligible, the claim is referred to the Refugee Protection Division (RPD) for a hearing.

A removal order is issued to most claimants; however, it is not enforced unless the claim is refused and all appeals have been exhausted. This ensures that claimants remain in Canada while their case is being considered, thereby upholding the principle of non-refoulement.

At the hearing, the RPD determines whether an individual is a refugee or a person in need of protection. Appeals are available in many cases, adding more safeguards.

Non-Refoulement in Removal Orders

Canada issues different types of removal orders:

• Departure Order: No travel ban, but must leave within 30 days, or it becomes a deportation order.
• Exclusion Order: Banned from returning for one year (or five for misrepresentation).
• Deportation Order: Permanent ban unless special permission is granted.

Before any removal, the law requires a risk assessment to ensure non-refoulement. If someone fears return, they must be told about the right to make a refugee claim. Most people facing removal can apply for a Pre-Removal Risk Assessment (PRRA), which considers current risks in their home country.

The Federal Court can order a stay of removal if a person faces irreparable harm and a serious legal issue needs to be resolved.

Canadian Courts and Non-Refoulement

Canadian courts have shaped the application of non-refoulement through several landmark cases.

• Singh v. Minister of Employment and Immigration: Established that everyone in Canada, including refugees, has the right to life, liberty, and security of the person.
• Németh v. Canada (Justice): Confirmed that non-refoulement applies in extradition cases as well as in immigration.
• Mason v. Canada: Required immigration decision-makers to interpret the IRPA with non-refoulement in mind, not just as an afterthought.
• Canadian Council for Refugees v. Canada: Upheld the STCA but sent equality concerns back for further review, highlighting ongoing debate about fair treatment.

The Federal Court and Court of Appeal regularly review administrative decisions, ensuring non-refoulement is consistently applied. These courts can halt removals and force reconsideration when there is a risk of serious harm.

Complexities and Ongoing Challenges

Applying non-refoulement in Canada involves a constant balancing act between protecting individuals and maintaining system integrity. Exceptions for security and criminality require careful judicial oversight. Legal challenges, especially regarding the STCA and cessation provisions, continue to shape the law.

Humanitarian and compassionate considerations are usually separated from the main refugee process, which can create extra hardship. Some critics argue for reforms to make the system more humane, especially given the severe consequences of cessation or vacating status.

Conclusion

Non-refoulement is at the heart of Canada’s refugee system. It protects people like Amina from a return to danger and upholds Canada’s image as a defender of human rights. However, the principle faces numerous real-world challenges, including balancing protection and security and ensuring fair treatment for all. If you would like to learn more about how these rules may impact your situation or your clients’, schedule a consultation with the author today. Understanding non-refoulement can make a difference in someone’s life.

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