FEBRUARY 10, 2025

Refugee Protection in Canada: Finding the Right Balance

TRICCIA RAFAELA CHAGAS DIAS *

Canada has an immigration system recognized as one of the most organized, respectful, and welcoming in the world, reflecting the country’s values of diversity and inclusion. The Refugee Law in Canada is characterized by being one of the most humanitarian in the world, with values reflected in the inclusion and protection of human rights. Within the Immigration Refugee Protection Act (IRPA), two sections play extremely fundamental roles in determining the protection status of people seeking refugee in the country: sections 96 and 97. Both offer protection to vulnerable individuals seeking refugee; however, they have different risk categories and specific requirements to determine who is entitled to stay in Canada under each of them. To obtain refugee status in Canada, a person must be either a Convention Refugee (Section 96) or a person needing protection (section 97). Section 96 of the IRPA defines conventional refugees following the 1951 United Nations Refugee Convention and its 1967 Protocol. According to this definition, the claimants must demonstrate a serious fear of persecution on grounds of race, religion, nationality, affiliation, or political opinion. Still, this fear needs to be well-founded and needs to be supported by objective evidence and personal testimony. Persecution can take many forms, including political persecution, religious and ethnic discrimination, violence against women, LGBTQIA+, etc. This section is intended to protect people who cannot return to their country of origin because their government refuses to guarantee their safety or their inability to do so. The refugee applicant must prove their fear of returning to their country and must establish their case on a balance of probabilities by presenting credible evidence.  The Claimant does not need to prove that the persecution will happen if he or she is forced to return. Instead, the person needs to establish a serious risk of persecution in the country of origin. Section 97 of the IRPA seeks to offer protection to people who, even if they do not qualify as conventional refugees, face grave risks if they return to their country of origin, such as risks of death, torture, and cruel and unusual treatment. Additionally, asylum seekers must also meet the balance of probabilities and must demonstrate that the risk is personal and substantial and that it goes beyond the general conditions of the country of origin. For example, a person who lives in a region with armed conflicts or war must prove that their risk is personalized and that the government is not capable of offering protection. The claim under both sections is heard by the Immigration and Refugee Board (IRB), which is the institution responsible for analyzing and processing all refugee applications in Canada. The applicants must provide robust evidence that proves the risk to which they refer. And for the analysis, the Claimant needs the proof attached to the application and the credibility and integrity of the applicant’s report. Canada is committed to offering protection to people who are at risk. However, applicants are not always able to gather the necessary documentation for their request, as many of them flee their country in a hurry, others have traumas that make it difficult for them to have a detailed and coherent account of the damages suffered, others have difficulties, within your country, to collect evidence, considering that many hide in fear. Despite its international recognition, the system is still imperfect. Delays in the analysis of refugee applications, such as inconsistencies in decisions between different adjudicators of the Immigration and Refugee Board (IRB), raise questions about the system’s fairness. Even with all the challenges, Canadian legislation evolves daily, whether through case law or international commitments. We have as an example Section 96, which has been expanded with the aim of including vulnerable groups that were previously not recognized, such as women victims of gender-based violence. In section 97, it has been applied to both armed conflicts and domestic violence in countries that do not protect these victims. In addition to humanitarian protection, the Canadian government also values national security. Even though it protects those at risk, the Government also has strict measures to prevent the system from being defrauded. In this way, the Government has rigorous checks on the security and credibility of applicants, guaranteeing the effectiveness of the refugee system. Refugee law represents a commitment to international norms and the inclusive character of Canadian society. Sections 96 and 97 demonstrate that protecting human rights and the dignity of vulnerable people are essential for the country and are part of positive public policies. Canada’s refugee system serves as a model for many other countries, demonstrating that it is possible to maintain a balance between administrative efficiency and compassion, respect, and responsibility.
* Triccia Rafaela Chagas Dias is a lawyer licensed in Brazil and is currently pursuing Ontario licensing. She is based in Toronto and holds Postgraduate degrees in Tax, Criminal, and Family Law and an MBA in International and Immigration Law.

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