Canadian Refugee Procedure/115-116 - Principle of Non-refoulement

IRPA Sections 115-116

Sections 115-116 of the Immigration and Refugee Protection Act read:

Principle of Non-refoulement

Protection
115 (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

Exceptions
(2) Subsection (1) does not apply in the case of a person
(a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or
(b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.

Removal of refugee
(3) A person, after a determination under paragraph 101(1)(e) that the person’s claim is ineligible, is to be sent to the country from which the person came to Canada, but may be sent to another country if that country is designated under subsection 102(1) or if the country from which the person came to Canada has rejected their claim for refugee protection.

Regulations
116 The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting procedures to be followed with respect to applications for protection and decisions made under section 115, including the establishment of factors to determine whether a hearing is required.

Section 115(1) of the IRPA prohibits refoulement to persecution for a Convention reason, torture, or cruel and unusual treatment or punishment, subject to exceptions

Section 115 of the IRPA provides that a person shall not be removed from Canada to a country where they would be at risk of persecution for a Convention ground or at risk of torture or cruel and unusual treatment or punishment. This list tracks Canada's international obligations.

The Refugee Convention provides in article 33(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.

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 provides in article 3(1):

No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

The United Nations International Covenant on Civil and Political Rights of 1966 is interpreted by the United Nations Human Rights Committee, which monitors implementation of the Covenant, as imposing a similar obligation:

[T]he article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed.

Article 6 of the Covenant protects the right to life, and article 7 prohibits torture or cruel, inhuman or degrading treatment or punishment. The interpretation of the phrase "cruel and unusual treatment or punishment" should arguably track the concept of "cruel, inhuman or degrading treatment or punishment" as that term is understood at international law.

See: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#IRPA Section 3(3)(f) - The Act is to be applied in a manner that complies with international human rights instruments Canada has signed.

Section 115(2) of the IRPA provides exceptions to the protection specified in section 115(1)

Section 115(2) provides that clause 115(1) does not apply in the case of the listed categories of persons. It is said that this provision explicitly allows the return of migrants to harm in violation of (human rights) non-refoulement obligations. The Federal Court, however, has found that the test to allow the overruling of the principle of non-refoulement sets a very high threshold.