The Non-Comparative Approach to Refugee Claims in Canada

A young woman, Achan, hails from South Sudan and is now in Canada, seeking refugee status. She fled her homeland amid its ongoing conflict. She didn’t face direct persecution, though. However, Achan fears for her life because of the conflict’s unpredictable nature. Furthermore, the government’s inability to protect citizens has left them vulnerable. However, she holds no specific political or religious views that would put her at risk; the lawlessness and armed groups around her cause great concern. She has learned about the Non-Comparative Approach to refugee claims and is curious about its implications for her case. She wonders how this principle might apply to her fear and situation, focusing on her experience rather than comparing it to others.

Defining the non-comparative approach to refugee claims

The Non-Comparative Approach, in the context of refugee claims in Canada, evaluates an individual’s need for protection based on their specific circumstances without comparing their situation to that of the general population in their country of origin. Consequently, this approach focuses on the personal risk and fear an individual claimant experiences due to threats of persecution rather than on the risk relative to the broader conditions in their country.

The non-comparative approach acknowledges that a person may be a refugee even if they do not face a risk significantly different from those faced by other civilians in their country. However, they must demonstrate a profound and personal threat to their life or freedom.

Where is the root of this approach to refugee claims?

The Non-Comparative Approach has its roots in the “Ali v. Canada” decision from 1999 by the Federal Court of Appeal.

The decision acknowledges the importance of assessing a refugee claim based on the individual’s circumstances and experiences, rather than comparing the claimant to the general population or the situation in the claimant’s country of origin. This approach emphasizes the uniqueness of each claimant’s experience and the need for personalized assessment in determining refugee status. The ruling aligns with the principle that refugee status determination should focus on the claimant’s personal risk and fear of persecution. Paragraph 4 of the ruling mentions important points regarding the non-comparative approach to refugee claims, namely:

• Definition: The non-comparative approach assesses refugee claims, specifically for civilian non-combatants in civil war situations, as described in the IRB Guidelines from March 7, 1996 (Revoked ​January 5, 2022).
• Guideline Adoption: This approach aligns with the third principle in Salibian v. Canada (1990), decisions of the Court of Appeal in Rizkallah and Hersi, Nur Dirie, and the definition of a Convention refugee.
• Individual Assessment: It focuses on the claimant’s individual circumstances rather than comparing their risk level to others in similar situations or groups.
• Convention Refugee Status: Examines whether the claimant’s fear of persecution is related to a Convention ground without comparing it to the general indiscriminate consequences of civil war.
• Avoids Generalized Victim Label: A claimant should not be labelled a “victim” of civil war without analyzing their personal circumstances and any group affiliations they may have.
• Emphasis on Personal Circumstances: The approach centers on whether the claimant’s fear of persecution is based on a Convention ground, thereby ensuring a personalized assessment of their refugee claim.

The main factors in a non-comparative approach to refugee claims

Generally, we can consider the following factors when assessing refugee claims. Of course, we are focusing on those circumstances in civil unrest or other adversities that affect the population as a whole:

• Individual Focus: We must evaluate a refugee claim based on the specific risks and circumstances faced by the individual claimant. Therefore, refrain from comparing their situation to the general population.
• Context of Civil War or Widespread Violence: The non-comparative approach becomes crucial in such contexts.
• Distinct Personal Risk: We must recognize that a person can be a refugee, even from a region of generalized violence. However, they must demonstrate a special, personal risk to themselves.
• Avoids Generalization: The non-comparative approach avoids diluting an individual’s claim by the broader context of violence or conflict in their home country. Consequently, it ensures a thorough and personal assessment.
• Case-by-Case Assessment: The authorities must assess each refugee claim on its merits. Therefore, they must consider the unique experiences and threats the claimant faces.
• Compatibility with International Refugee Law: This approach aligns with the principles of international refugee law. Such laws focus on the need for protection based on individual circumstances.
• Serious Harm: The focus is on the severity of the harm the claimant might face rather than comparing the level of risk with others.
• Risk of Harm: It assesses the reasonable possibility that the claimant will encounter the anticipated harm, without comparing the risk level to others.
• Nexus: It involves linking the harm the claimant might face to one of the Convention grounds, regardless of whether others may be targeted for similar reasons.

More reading: Chapter 4 of the IRB legal resources.

Assessing Achan’s Eligibility for Refugee Status in Canada

Let’s explore the hypothetical story I shared at the beginning of this article. The chances of Achan securing protection in Canada under the non-comparative approach depend on several factors. Of course, these factors relate to her individual circumstances and how they align with the criteria for refugee status under Canadian immigration law.

• Individual Fear and Risk: Achan’s personal fear for her life, driven by the conflict’s unpredictable nature, is a critical factor.
• Government’s Inability to Protect: The South Sudanese government’s inability to protect its citizens, leaving Achan vulnerable, is significant. This suggests she may not have state-provided safety options within her country.
• Lack of Specific Political or Religious Affiliation: Despite lacking specific affiliations that would typically put her at risk, her fear and risk due to general lawlessness and the presence of armed groups are still relevant.
• Assessment of Personal Circumstances: Her case will be evaluated on its own merits, considering her unique experiences and fears rather than being compared to the broader situation in South Sudan.
• Application of Non-Comparative Principles: Understanding how this approach applies to her situation, Achan’s concern is whether her fear and the risks she faces are sufficiently serious and personal to warrant protection.

While the Non-Comparative Approach offers a more individualized assessment, the outcome of Achan’s claim would ultimately depend on how convincingly she presents her case and whether it meets the legal criteria for refugee status under Canadian immigration law. Of course, a strong Basis of Claim and Narrative could help. The decision would be made by the Immigration and Refugee Board of Canada (IRB), taking into account all aspects of her claim.

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