𝗥𝗮𝘁𝗶𝗼𝗻𝗮𝗹𝗲 𝗨𝗻𝗱𝗲𝗿𝗹𝘆𝗶𝗻𝗴 𝗥𝗲𝗳𝘂𝗴𝗲𝗲 𝗣𝗿𝗼𝘁𝗲𝗰𝘁𝗶𝗼𝗻 𝗶𝗻 𝗜𝗻𝘁𝗲𝗿𝗻𝗮𝘁𝗶𝗼𝗻𝗮𝗹 𝗟𝗮𝘄

The rationale underlying the international refugee protection regime as it applies to Canada was explained by the Supreme Court of Canada in 𝘊𝘢𝘯𝘢𝘥𝘢 (𝘈.𝘎.) 𝘷. 𝘞𝘢𝘳𝘥, [1993] 2 𝘚.𝘊.𝘙. 689.

International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It is meant to come into play only in situations when that protection is unavailable, and only in certain situations. 

The international community intends that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. 

The refugee scheme is also referred to as “surrogate or substitute protection” and is activated only upon failure of national protection.

Under immigration statutes, the Federal Court of Canada plays a supervisory role in refugee determination. Appeals to the Federal Court of Appeal are only allowed where an application judge certifies that a serious question of general importance which would be dispositive of the appeal is involved.

The interests at stake in refugee determination set the process apart from the general sphere of administrative adjudication. Canada’s statutory regime for refugee determination has evolved following Canada’s 1969 signing of the United Nations Convention Relating to the Status of Refugee and its protocol. This signified Canada’s commitment to the principle of nonrefoulement, or non-return, which represents the Convention’s main obligation.

This principle entails determining whether individual refugee claimants are entitled to Canada’s protection by reason of a well-founded fear of persecution owing to inadequate state protection in their countries of origin. 

By its nature, refugee determination routinely raises human rights issues involving severe suffering and deprivation.

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