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CHAPTER 3
3. PERSECUTION
3.1. GENERALLY
3.1.1. Definition
Like other terms in the Convention refugee
definition, "persecution" is a word whose meaning is neither self-evident
nor defined in the Immigration and Refugee Protection Act (IRPA).
Therefore, it has fallen to the courts to identify the boundaries of the
word. Case-law has not only labelled specific behaviours as instances
of persecution, but also has gone some distance toward identifying general
hallmarks that must be present, or criteria that must be met, in order
for actions or omissions to constitute persecution.
3.1.1.1. Serious Harm
First, to be considered persecution,
the mistreatment suffered or anticipated must be serious.1
And in order to determine whether particular mistreatment would qualify
as "serious", one must examine:
- what interest of the claimant might be harmed; and
- to what extent the subsistence, enjoyment, expression or exercise
of that interest might be compromised.
This approach has been approved by the courts, which have equated the
notion of a serious compromising of interest with a key denial of a core
human right. Thus, in Ward,2
the Supreme Court said as follows:
Underlying the Convention is the international community's commitment
to the assurance of basic human rights without discrimination. This is
indicated in the preamble to the treaty as follows:
CONSIDERING that the Charter of the United Nations and the
Universal Declaration of Human Rights
have affirmed the principle
that human beings shall enjoy fundamental rights and freedoms without
discrimination.
This theme
provides an inherent limit to the cases embraced
by the Convention.Hathaway,
at p. 108,
thus explains the impact of this general tone on the treaty on refugee
law:
The dominant view, however, is that refugee law ought to concern
itself with actions which deny human dignity in any key way and that
the sustained or systemic denial of core human rights is the appropriate
standard.
This theme sets the boundaries for many of the elements of the
definition of Convention "refugee". "Persecution", for example, undefined
in the Convention, has been ascribed the meaning of "sustained or systemic
violation of basic human rights demonstrative of a failure of state protection";
see Hathaway,
at pp.
104-105. So too Goodwin-Gill,
at p. 38
observes that "comprehensive analysis requires the general notion [of
persecution] to be related to developments within the broad field of human
rights". This has recently been recognized by the Federal Court of Appeal
in the Cheung case.3
In Chan,4
La Forest J. (in dissent) reiterated that "[t]he essential question is
whether the persecution alleged by the claimant threatens his or her basic
human rights in a fundamental way."Mr. Justice
La Forest also said:
These basic human rights are not to be considered from the subjective
perspective of one country
By very definition, such rights transcend
subjective and parochial perspectives and extend beyond national boundaries.
This does not mean, however, that recourse to the municipal law [i.e.
domestic or internal law] of the admitting nation may not be made. For
such municipal law may well animate a consideration of whether the alleged
feared conduct fundamentally violates basic human rights.5
If the conduct does amount to persecution,
there is no further requirement that the persecution be dramatic or appalling
or horrendous,6
unless the issue in the case involves the application of section 108(4)
of the IRPA
(section 2(3) of the former Immigration Act) (see Chapter 7,
section 7.2).
The requirement that the harm be serious
has led to a distinction between persecution on the one hand, and discrimination
or harassment on the other, with persecution being characterized by the
greater seriousness of the mistreatment which it involves.7
Discrimination and harassment are sometimes conceived of as being distinct
from persecution; alternatively, some references to persecution and discrimination
imply that persecution is a subset of discrimination; but in either case,
what distinguishes persecution - whether from discrimination or non-persecutory
discrimination - is the degree of seriousness of the harm. The Court of
Appeal has observed that"the dividing line between persecution and discrimination
or harassment is difficult to establish."8
As to the particular susceptibilities of a given claimant, the Court in
Nejad9
said the following:
The CRDD
did recognize and the Court agrees that there may be certain circumstances
in which the particular characteristics or circumstances of a claimant
might affect the assessment of whether certain acts or treatments
are persecutory. [To]
the extent that an agent of persecution intentionally
plays upon or exploits the fact that a person suffers from a particular
frailty or condition in order to cause harm, an act not normally or inherently
persecutorial, may be transformed into an act of persecution.
That is beautiful in theory,
but who knows what is the intention of the persecutor? Who knows what
is the particular knowledge of the persecutor? One must look at the act
and the effect.10
And in this case, in particular, because of the old age of the applicants,
it should have been more obvious to the CRDD
panel that the effect upon them was that of persecution.
For additional material on the distinction
between persecution and discrimination, see paragraph 54 of the UNHCR
Handbook.
3.1.1.2. Repetition and Persistence
A second criterion of persecution is
that the inflicting of harm occurs with repetition or persistence, or
in a systematic way. This requirement has been approved in Ward
(quoting Hathaway).11
It also derives from the Court of Appeal decision in Rajudeen,12
which is much-cited on this point:
The definition of Convention refugee in the Immigration
Act does not include a definition of "persecution". Accordingly,
ordinary dictionary definitions may be considered. The Living Webster
Encyclopedic Dictionary defines "persecute" as:
"To harass or afflict with repeated acts of cruelty or annoyance;
to afflict persistently, to afflict or punish because of particular
opinions or adherence to a particular creed or mode of worship."
The Shorter Oxford English Dictionary contains, inter
alia, the following definitions of "persecution":
"A particular course or period of systematic infliction of
punishment directed against those holding a particular (religious belief);
persistent injury or annoyance from any source."
[the evidence] establishes beyond doubt a lengthy period
of systematic infliction of threats and of personal injury. The applicant
was not mistreated because of civil unrest in Sri Lanka but because he
was a Tamil and a Muslim.13
The Court of Appeal later provided something
of an elaboration in Valentin14:
it seems to me
that an isolated sentence can only
in very exceptional cases satisfy the element of repetition and relentlessness
found at the heart of persecution (cf. Rajudeen
)
15
Jurisprudence also recognizes that some
sentences and forms of punishment of undue proportion by the state may
be considered as persecution, such as in certain instances of military
evaders.16
These authorities notwithstanding, it
would seem that persistence or repetition should not be regarded as a
necessary element in all cases. Some forms of harm are unlikely to be
inflicted repeatedly (e.g.,
female genital mutilation), or are simply incapable of being repeated
(e.g., the killing of the claimant's
family as a form of retribution against the claimant); nevertheless, they
are so severe that their characterization as persecution seems beyond
dispute.17
3.1.1.3. Nexus
For a claim to succeed, the definition
of Convention refugee requires that the persecution be linked to a Convention
ground. The Supreme Court of Canada noted in Ward that:
the international community did not intend to offer a
haven for all suffering individuals. The need for "'persecution" in order
to warrant international protection, for example, results in the exclusion
of such pleas as those of economic migrants, i.e.
individuals in search of better living conditions, and those of victims
of natural disasters, even when the home state is unable to provide assistance.
18
Indirect persecution does not constitute
persecution within the meaning of the definition of Convention refugee
as there is no personal nexus between the claimant's alleged fear and
a Convention ground. Accordingly, the Federal Court of Appeal in Pour-Shariati
held, overruling Bhatti,19
a case recognizing the concept of indirect persecution, that:
We accordingly overrule Bhatti's recognition of the concept
of indirect persecution as a principle of our refugee law. In the words
of Nadon, J. in Casetellanos v.
Canada (Solicitor General) (1994), 89 F.T.R. 1, 11, "since indirect
persecution does not constitute persecution within the meaning of Convention
refugee, a claim based on it should not be allowed." It seems to
us that the concept of indirect persecution goes directly against the
decision of this Court in Rizkallah v.
Canada, A-606-90, decided 6 May 1992, [1992] F.C.J. no. 412,
where it was held that there had to be a personal nexus between the claimant
and the alleged persecution on one of the Convention grounds. One of these
grounds is, of course, a "membership in a particular social group,"
a ground which allows for family concerns in on [sic] appropriate case.20
3.1.1.4. Common Crime or Persecution?
Persecution has been distinguished from
random and arbitrary violence21
and from suffering as a result of a criminal act or a personal vendetta.22In
a few of the cases where the claimant has been victimized by what might
be characterized as a "common" crime, there has been some discussion of
whether the mistreatment in question might qualify as "persecution". The
Trial Division has said that most acts of persecution can be characterized
as criminal, but that in an individual case the Refugee Division (now
Refugee Protection Division - RPD)
may nevertheless distinguish between criminal acts and persecution.23 In the case of Alifanova,24
the Court has further commented that while most acts of
persecution are criminal in nature, not all criminal acts can be considered
acts of persecution. It continues to give the following example: "Extortion
is a criminal act. Threats of bodily harm is a criminal act. Because these
criminal acts are made by Kazakhs against Russians does not make the act
one of persecution." Some of the cases in this area involve personal vendettas,
or the misuse of official position, or the witnessing of criminal acts.
Others involve domestic abuse: the Court of Appeal in Mayers,25
said that the Refugee Division might find domestic violence to be persecution,
but in the circumstances of the case, the Court was not required to make
that finding;26 the Trial Division, in a number of cases has regarded
domestic abuse as persecution.27
However, an assessment of whether domestic abuse is tantamount to persecution
requires a careful examination of the circumstances and facts of each
case. For instance, in the case of Aros28,
the Court upheld the CRDD
finding that abused women in domestic situations were not a persecuted
social group in Chile.
In assessing these sorts of claims,
it is suggested that members inquire whether the harm is serious,29
whether there is a serious possibility of the harm's occurring, whether
the harm is inflicted for a Convention reason,30
and whether state protection is available.31
The finding of state protection must be made on the basis of the evidence
before the panel rather than on mere speculation.32See
also Chapter 4, section 4.7.
3.1.1.5. Agent of Persecution
Serious human rights violations may
in fact issue not only from higher authorities of the state, but also
from subordinate state authorities, or from persons who are not attached
to the government; and whichever is the case, the Convention may apply.
In order to be categorized as persecution, the harm need not emanate from
the state; and the state need not be involved or be complicit in the perpetration
of the harm.33
The fact that those who inflict mistreatment
are schoolchildren and schoolyard bullies is not relevant to the question
of whether the mistreatment amounts to persecution.34
Similarly, serious mistreatment inflicted by teenagers upon a minor claimant
may not reasonably be regarded as mere pranks.35
For more regarding the role of the state
with respect to mistreatment of a claimant, see Chapter 6.
3.1.2. Cumulative Acts of Discrimination and/or
Harassment
A given episode of mistreatment may
constitute discrimination or harassment, yet not be serious enough to
be regarded as persecution.36
Indeed, a finding of discrimination rather than persecution is within
the jurisdiction of the RPD.37
Even so, acts of harassment, none amounting to persecution individually,
may cumulatively constitute persecution.38
Where the claimant has experienced more than one incident of mistreatment,
the Refugee Protection Division may err if it only looks at each incident
separately.39
Moreover, the Court has also commented on the need to consider whether
the repeated incidents of harassment in the past may lead to a serious
possibility of persecution in the future.40
It is appropriate to consider both the
actions of the government against the individual claimant and the overall
atmosphere created by the state's intolerance.41
See also paragraphs 53, 55, 67 and 201
of the UNHCR
Handbook.
3.1.3. Forms of Persecution
3.1.3.1. Some Judicial Observations
It is impossible to compile an exhaustive
catalogue of forms of persecution. Furthermore, whether particular harm
constitutes persecution may depend upon the facts of the individual case.
Nevertheless, here are some of the more instructive observations that
emerge from the case law. (NOTE: The statements which follow should be
approached with caution. To obtain context and understand the statements
fully, the reader should consult the cases on which they are based.)
- Torture, beatings and rape are prime examples of persecution.42
- The term "discrimination" is not adequate to describe behaviour which
includes acts of violence and death threats.43
- Death threats may constitute persecution even if the persons making
the threats refrain from carrying them out.44
Whether death threats do amount to acts of persecution depends upon
the personal circumstances of the claimant.45
- When imposed for certain offences, the death penalty may not constitute
persecution.46
- Forced or strongly coerced sterilization constitutes persecution,
whether the victim is a woman47
or a man.48 Forced abortion also constitutes persecution.49
- Female circumcision is a "cruel and barbaric practice", a "horrific
torture", and an "atrocious mutilation".50
- For "persecution" to exist within the meaning of the definition, it
is not necessary for the subject to have been deprived of his freedom.51
- There may be persecution even if there is no physical harm or mistreatment.52
- Psychological violence may be an element in persecution.53
- The bringing of a trumped-up charge, and interference in the due process
of law, may be aspects of persecutory treatment.54
- The fact that the claimant, along with all of his or her co-nationals,
suffers curtailment of freedom of speech, in and of itself does not
amount to persecution.55
- Barring one claimant from obtaining citizenship and from taking part
in political activities, and barring a second claimant (a citizen) from
voting and from otherwise participating in the political process, did
not constitute persecution, where the claimants enjoyed numerous other
rights.56
- Punishment for violation of a law concerning dress may constitute
persecution.57
However, in recent case law, the Court has found that the punishment
of lashing for improper dress in Saudi Arabia did not amount to persecution
but rather prosecution.58
- Denial of a right of return may constitute an act of persecution.59
- Simple statelessness does not make one a Convention refugee.60
- Economic penalties may be an acceptable means of enforcing a state
policy,61
where the claimant is not deprived of his or her right to earn a livelihood.62
- Where the state interferes substantially with the claimant's ability
to find work, the possibility of the claimant's finding illegal employment
is not an acceptable remedy.63
- Permanently depriving an educated professional of his or her accustomed
occupation and limiting the person to farm and factory work constituted
persecution.64
- By itself, confiscation of property is not sufficiently grave to constitute
persecution.65
- Serious economic deprivations may be components of persecution.66
- Extortion may be one of the indicia of persecution, depending upon
the reason for the extortion and the motivation of the claimant in paying.67
- A child who would experience hardships including deprivation of medical
care, education opportunities, employment opportunities and food would
suffer concerted and severe discrimination, amounting to persecution.68
- Education is a basic human right and a nine-year-old claimant who
could have avoided persecution only by refusing to go to school was
deemed to be a Convention refugee.69
- It is not an act of persecution to ban certain groups of children
from attending public schools, if they are permitted to have their own
schools.70
- Forcing a woman into a marriage violates one of her basic human rights.71
- An impediment to the claimant's marrying in her homeland did not constitute
persecution.72
- Legal restrictions allowing certain categories of people to settle
only in certain areas did not constitute persecution.73
- A law which requires a person to forsake the principles or practices
of his or her religion is patently persecutory, so long as the principles
or practices in question are not unreasonable.74
Sanctions such as a short detention, fine or re-education term, which
might have been imposed upon the claimant for practising his religion
or belonging to a particular religious community, were serious measures
of discrimination and constituted persecution.75
- Injury to pride and political sensibilities did not amount to a violation
of security of the person.76
- Lamentable rough treatment, involving detention and interrogation,
in a country that is experiencing serious terrorist activity, does not
of itself amount to persecution.77
- Minor children who are expected to provide support for other family
members, after been smuggled in Canada are not persecuted by their parents.78
- The act of being illegally trafficked is not in itself persecution
simply because the claimant is a minor.79
- Abdel-Khalik, Fadya Mahmoud v.
M.E.I.
(F.C.T.D.,
no. IMM-883-93), Reed, January 31, 1994. Reported: Abdel-Khalik
v. Canada (Minister of Employment
and Immigration) (1994), 23 Imm.
L.R. (2d) 262 (F.C.T.D.)
- Abouhalima, Sherif v. M.C.I.
(F.C.T.D.,
no. IMM-835-97), Gibson, January 30, 1998
- Abramov, Andrei v. M.C.I.
(F.C.T.D.,
no. IMM-3576-97), Tremblay-Lamer,
June 15, 1998
- Abrego, Apolonio Paz v.
M.E.I.(F.C.A.,
no. A-348-91), Hugessen,
Linden, Holland, February 18, 1993
- Ahmad, Rizwan v. S.G.C.
(F.C.T.D.,
no. IMM-7180-93), Teitelbaum,
March 14, 1995
- Ali, Shaysta-Ameer v. M.C.I.
(F.C.T.D.,
no. IMM-3404-95), McKeown,
October 30, 1996. Reported: Ali v.
Canada (Minister of Citizenship and Immigration) (1996), 36 Imm.
L.R. (2d) 34 (F.C.T.D.)
- Alifanova, Nathalia v. M.C.I.
(F.C.T.D.,
no. IMM-5501-97), Teitelbaum,
December 11, 1998
- Altawil, Anwar Mohamed v.
M.C.I.
(F.C.T.D.,
no. IMM-2365-95), Simpson,
July 25, 1996
- Amayo v. Canada (Minister
of Employment and Immigration), [1982] 1 F.C.
520 (C.A.)
- Ammery, Poone v. S.S.C.
(F.C.T.D.,
no. IMM-5405-93), MacKay,
May 11, 1994
- Annan v. Canada (Minister
of Citizenship and Immigration), [1995] 3 F.C.
25 (T.D.)
- Ansar, Iqbal v. M.C.I.
(F.C.T.D.,
no. IMM-4124-97), Campbell,
July 22, 1998
- Antonio, Pacato Joao v.
M.E.I.
(F.C.T.D.,
no. IMM-1072-93), Nadon,
September 27, 1994
- Arafa, Mohammed v. M.E.I.
(F.C.T.D.,
no. A-663-92), Gibson, November 3,
1993
- Arguello-Garcia, Jacobo Ignacio v.
M.E.I.
(F.C.T.D.,
no. 92-A-7335), McKeown,
June 23, 1993. Reported: Arguello-Garcia v.
Canada (Minister of Employment and Immigration) (1993), 21 Imm.
L.R. (2d) 285 (F.C.T.D.)
- Aros, Angelica Elizabeth Navarro v.
M.C.I.
(F.C.T.D.,
no. IMM-4480-96), MacKay,
February 11, 1998
- Asadi, Sedigheh v. M.C.I.
(F.C.T.D.,
no. IMM-1921-96), Lutfy,
April 18, 1997
- Atwal, Mohinder Singh v.
M.C.I.
(F.C.T.D.,
no. IMM-6769-98), Nadon,
November 17, 1999
- Balendra, Cheran v. M.C.I.
(F.C.T.D.,
no. IMM-1653-94), Richard,
January 30, 1995
- Bencic, Eva v. M.C.I.
(F.C.T.D.,
no. IMM-3711-00), Kelen,
April 26, 2002; 2002 FCT
476
- Bhatti, Naushaba v. Canada
(Secretary of State) (F.C.T.D.,
no. A-89-93), Jerome, September
14, 1994
- Bougai, Zoia (a.k.a. Bougai, Zoya) v.
M.C.I.
(F.C.T.D.,
no. IMM-4966-94), Gibson,
June 15, 1995
- Bragagnini-Ore, Gianina Evelyn v.
S.S.C.
(F.C.T.D.,
no. IMM-2243-93), Pinard,
February 4, 1994
- Bursuc, Cristinel v. M.C.I.
(F.C.T.D.,
no. IMM-5706-01), Dawson,
September 11, 2002; 2002 FCT
957
- Cetinkaya, Lukman v. M.C.I.
(F.C.T.D.,
no. IMM-2559-97), Muldoon,
July 31, 1998
- Chan v. Canada (Minister
of Employment and Immigration), [1993] 3 F.C.
675; (1993), 20 Imm.
L.R. (2d) 181 (C.A.)
- Chan v. Canada (Minister
of Employment and Immigration), [1995] 3 S.C.R.
593
- Chen, Shun Guan v. M.C.I.
(F.C.T.D.,
no. IMM-1433-96), Lutfy,
January 31, 1997
- Chen, Yo Long v. M.C.I.
(F.C.T.D.,
no. IMM-487-94), Richard,
January 30, 1995
- Cheung v. Canada (Minister
of Employment and Immigration), [1993] 2 F.C.
314 (C.A.)
- Chu, Zheng-Hao v. M.C.I.
(F.C.T.D.,
no. IMM-5159-94), Jerome,
January 17, 1996
- Cortez, Delmy Isabel v.
S.S.C.
(F.C.T.D.,
no. IMM-2482-93), McKeown,
December 15, 1993
- Daghmash, Mohamed Hussein Moustapha v. M.C.I.
(F.C.T.D.,
no. IMM-4302-97), Lutfy,
June 19, 1998
- Diluna, Roselene Edyr Soares v.
M.E.I.
(F.C.T.D.,
no. IMM-3201-94), Gibson,
March 14, 1995. Reported: Diluna v.
Canada (Minister of Employment and Immigration) (1995), 29 Imm.
L.R. (2d) 156 (F.C.T.D.)
- Dragulin, Constantin Marinescu v.
S.G.C. (F.C.T.D.,
no. IMM-46-94), Rouleau,
December 23, 1994
- El Khatib, Naif v. M.C.I.
(F.C.T.D.,
no. IMM-5182-93), McKeown,
September 27, 1994
- El Khatib: M.C.I.
v. El Khatib, Naif (F.C.A.,
no. A-592-94), Strayer, Robertson,
McDonald, June 20, 1996
- Falberg, Victor v. M.C.I.
(F.C.T.D.,
no. IMM-328-94), Richard,
April 19, 1995
- Fathi-Rad, Farideh v.
S.S.C..
(F.C.T.D.,
no. IMM-2438-93), McGillis,
April 13, 1994
- Frid, Mickael v. M.C.I.
(F.C.T.D.,
no. IMM-6694-93), Rothstein,
December 15, 1994
- Gidoiu, Ion v. S.S.C.
(F.C.T.D.,
no. IMM-2907-94), Wetston,
April 6, 1995
- Gnanam, Ulakanayaki v. M.E.I.
(F.C.T.D.,
no. IMM-2165-93), Simpson,
August 31, 1994 (reasons signed March 31, 1995)
- Gomez-Rejon, Bili v. M.E.I.
(F.C.T.D.,
no. IMM-470-93), Joyal, November 25,
1994
- Gonzalez, Brenda Yojana v.
M.C.I.
(F.C.T.D.,
no. IMM-1092-01), Dawson,
March 27, 2002; 2002 FCT
345
- Gutkovski, Alexander v.
S.S.C.
(F.C.T.D.,
no. IMM-746-94), Teitelbaum,
April 6, 1995
- Hazarat, Ghulam v. S.S.C..
(F.C.T.D.,
no. IMM-5496-93), MacKay,
November 25, 1994
- He, Shao Mei v. M.E.I.
(F.C.T.D.,
no. IMM-3024-93), Simpson,
June 1, 1994. Reported: He v.
Canada (Minister of Employment and Immigration) (1994), 25 Imm.
L.R. (2d) 128 (F.C.T.D.)
- Horvath v. M.C.I.
(F.C.T.D.,
no. IMM-4335-99), MacKay,
April 27, 2001
- Igumnov, Sergei v. M.C.I.
(F.C.T.D.,
no. IMM-6993-93), Rouleau,
December 16, 1994
- Iossifov, Svetoslav Gueorguiev v.
M.E.I.
(F.C.T.D.,
no. A-854-92), McKeown, December 8,
1993
- Iruthayanathar, Joseph v.
M.C.I.
(F.C.T.D.,
no. IMM-3619-99), Gibson,
June 15, 2000
- Jebnoun, Fadhila v. M.C.I.
(F.C.T.D.,
no. IMM-6261-93), McGillis,
January 12, 1995. Reported: Jebnoun v.
M.C.I.
(1995), 28 Imm.
L.R. (2d) 67 (F.C.T.D.)
- Kadenko, Ninal v. S.G.C.
(F.C.T.D.,
no. IMM-809-94), Tremblay-Lamer,
June 9, 1995. Reported: Kadenko v.
Canada (Solicitor General) (1995), 32 Imm.
L.R. (2d) 275 (F.C.T.D.)
- Kadenko: M.C.I.
v. Kadenko, Ninal (F.C.A.,
no. A-388-95), Décary,
Hugessen, Chevalier, October 15, 1996
- Kadhm, Suhad Mohamed v.
M.C.I.
(F.C.T.D.,
no. IMM-652-97), Muldoon,
January 8, 1998
- Kanagalingam, Uthayakumari v.
M.C.I.
(F.C.T.D.,
no. IMM-566-98), Blais, February
10, 1999
- Karaseva, Tatiana v. M.C.I.
(F.C.T.D.,
no. IMM-4683-96), Teitelbaum,
November 26, 1997
- Karpounin, Maxim Nikolajevitsh v.
M.E.I.
(F.C.T.D.,
no. IMM-7368-93), Jerome,
March 10, 1995.
- Kassatkine, Serguei v. M.C.I.
(F.C.T.D.,
no. IMM-978-95), Muldoon,
August 20, 1996
- Kaur, Biba v. M.C.I.
(F.C.T.D.,
no. IMM-305-96), Jerome,
January 17, 1997
- Kazkan, Shahrokh Saeedi v.
M.C.I.
(F.C.T.D.,
no. IMM-1313-96), Rothstein,
March 20, 1997
- Keninger v. M.C.I.
(F.C.T.D.,
no. IMM-3096-00), Gibson,
July 6, 2001
- Kicheva, Zorka v. M.E.I.
(F.C.T.D.,
no. A-625-92), Denault, December 23,
1993
- Kwiatkowsky v. Canada (Minister
of Employment and Immigration), [1982] 2 S.C.R.
856
- Lai, Quang v. M.E.I.
(F.C.T.D.,
no. IMM-307-93), McKeown,
May 20, 1994
- Lerer, Iakov v. M.C.I.
(F.C.T.D.,
no. IMM-7438-93), Cullen,
January 5, 1995
- Li, Qing Bing v. M.C.I.
(F.C.T.D.,
no. IMM-5095-98), Reed, August
27, 1999
- Lin, Qu Liang v. M.E.I.
(F.C.A.,
no. 93-A-142), Rouleau, July 20,
1993. Reported: Lin v.
Canada (Minister of Employment and Immigration) (1993), 24 Imm.
L.R. (2d) 208 (F.C.T.D.)
- Ling, Che Keung v. M.E.I.
(F.C.T.D.,
no. 92-A-6555), Muldoon,
May 20, 1993
- M.C.I.
v. Lin (F.C.A.,
no. A-3-01) Desjardins, Décary,
Sexton, October 18, 2001
- Maarouf v. Canada (Minister
of Employment and Immigration), [1994] 1 F.C.
723 (T.D.)
- Madelat, Firouzeh v. M.E.I.,
Mirzabeglui, Maryam v. M.E.I.
(F.C.A.,
nos. A-537-89 and A-538-89), MacGuigan, Mahoney, Linden, January 28,
1991
- Malchikov, Alexander v.
M.C.I.
(F.C.T.D.,
no. IMM-1673-95), Tremblay-Lamer,
January 18, 1996
- Mayers: Canada (Minister of Employment and Immigration) v.
Mayers, [1993] 1 F.C.
154 (C.A.)
- Mendoza, Elizabeth Aurora Hauayek v.
M.C.I.
(F.C.T.D.,
no. IMM-2997-94), Muldoon,
January 24, 1996
- Molaei, Farzam v. M.C.I.
(F.C.T.D.,
no. IMM-1611-97), Muldoon,
January 28, 1998
- Montoya, Hernan Dario Calderon v.
M.C.I.
(F.C.T.D.,
no. IMM-5027-00), Hansen,
January 18, 2002; 2002 FCT
63
- Mortera, Senando Layson v.
M.E.I.
(F.C.T.D.,
no. A-1084-92), McKeown,
December 8, 1993
- Moudrak, Vanda v. M.C.I.
(F.C.T.D.
no. IMM-1480-97), Teitelbaum,
April 1, 1998
- Mousavi-Samani, Nasrin v.
M.C.I.
(F.C.T.D.,
no. IMM-4674-96), Heald,
September 30, 1997
- Munoz, Alfonso La Rotta v.
M.C.I.
(F.C.T.D.,
no. IMM-2207-93), Pinard,
November 28, 1994
- Murugiah, Rahjendran v.
M.E.I.
(F.C.T.D.,
no. 92-A-6788), Noël,
May 18, 1993
- Muthuthevar, Muthiah v.
M.C.I.
(F.C.T.D.,
no. IMM-2095-95), Cullen,
February 15, 1996
- Naikar, Muni Umesh v. M.E.I.
(F.C.T.D.,
no. 93-A-120), Joyal, June 17,
1993
- Namitabar v. Canada (Minister
of Employment and Immigration), [1994] 2 F.C.
42 (T.D.)
- Namitabar: Canada (Secretary of State) v.
Namitabar (F.C.A.,
no. A-709-93), Décary,
Hugessen, Desjardins, October 28, 1996
- Narvaez v. Canada (Minister
of Citizenship and Immigration), [1995] 2 F.C.
55 (T.D.)
- Nejad, Hossein Hamedi v.
M.C.I.
(F.C.T.D.,
no. IMM-2687-96), Muldoon,
July 29, 1997
- Nina, Razvan v. M.C.I.
(F.C.T.D.,
no. A-725-92), Cullen, November 24,
1994
- Njoko, Tubila v. M.E.I.
(F.C.T.D.,
no. A-1698-92), Jerome, January 25,
1995
- Oyarzo v. Canada (Minister
of Employment and Immigration), [1982] 2 F.C.
779 (C.A.)
- Pierre-Louis, Edy v. M.E.I.
(F.C.A.,
no. A-1264-91), Hugessen,
MacGuigan, Décary, April 29, 1993
- Porto, Javier Cardozo v.
M.E.I.
(F.C.T.D.,
no. A-1549-92), Noël,
September 3, 1993
- Pour-Shariati, Dolat v.
Canada v. M.E.I.
(F.C.A.,
no. A-721-94), MacGuigan,
Robertson, McDonald, June 10, 1997
- Rabbani, Farideh v. M.C.I.
(F.C.T.D.,
no. IMM-2032-96), McGillis,
June 3, 1997
- Rajah, Jeyadevan v. M.E.I.
(F.C.T.D.,
no. 92-A-7341), Joyal, September 27,
1993
- Rajudeen, Zahirdeen v. M.E.I.
(F.C.A.,
no. A-1779-83), Heald, Hugessen,
Stone (concurring), July 4, 1984. Reported: Rajudeen v.
Canada (Minister of Employment and Immigration) (1984), 55 N.R.
129 (F.C.A.)
- Ramirez, Rosa Etelvina v.
S.G.C. (F.C.T.D.,
no. IMM-1192-94), Rouleau,
December 9, 1994
- Ravji, Shahsultan Meghji v.
M.E.I.
(F.C.T.D.,
no. A-897-92), McGillis,
August 4, 1994
- Rawji, Riayz v. M.E.I.
(F.C.T.D.,
no. IMM-5929-93), Gibson,
November 25, 1994
- Retnem, Rajkumar v. M.E.I.
(F.C.A.,
no. A-470-89), MacGuigan,
Décary, Pratte (dissenting), May 6, 1991. Reported: Retnem
v. Canada (Minister of Employment
and Immigration) (1991), 13 Imm.
L.R. (2d) 317 (F.C.A.)
- Rodionova, Svetlana v. M.E.I.
(F.C.T.D.,
no. 92-A-6839), Strayer,
July 7, 1993
- Rodriguez-Hernandez, Severino Carlos v.
S.S.C.
(F.C.T.D.,
no. A-19-93), Wetston, January 10,
1994
- Saddouh (Kaddouh), Sabah v.
M.E.I.
(F.C.T.D.,
no. IMM-2200-93), Denault,
February 2, 1994
- Sagharichi, Mojgan v. M.E.I.
(F.C.A.,
no. A-169-91), Isaac, Marceau,
MacDonald, August 5, 1993. Reported: Sagharichi v.
Canada (Minister of Employment and Immigration) (1993), 182 N.R.
398 (F.C.A.)
- Singh, Tejinder Pal v. M.C.I.
(F.C.T.D.,
no. IMM-5294-97), Muldoon,
December 23, 1997
- Sinnathamby, Jayasrikanthan v.
M.E.I.
(F.C.T.D.,
no. IMM-179-93), Noël,
November 2, 1993. Reported: Sinnathamby v.
Canada (Minister of Employment and Immigration) (1993), 23 Imm.
L.R. (2d) 32 (F.C.T.D.)
- Sirin, Hidayet v. M.C.I.
(F.C.T.D.,
no. IMM-5720-93), Pinard,
November 28, 1994
- Sivapoosam, Sivakumar v.
M.C.I.
(F.C.T.D.,
no. IMM-2674-95), Reed, June 19,
1996
- Soto, Marie Marcelina Troncoso v.
M.C.I.
(F.C.T.D.,
no. IMM-3734-01), Tremblay-Lamer,
July 10, 2002; 2002 FCT
768
- Srithar, Suntharalingam v.
M.C.I.
(F.C.T.D.,
no. IMM-158-97), Tremblay-Lamer,
October 10, 1997
- Sulaiman, Hussaine Hassan v.
M.C.I.
(F.C.T.D.,
no. IMM-525-94), MacKay,
March 22, 1996
- Thathaal, Sabir Hussain v.
S.S.C.
(F.C.T.D.,
no. A-1644-92), McKeown,
December 15, 1993
- Thirunavukkarasu v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C.
589 (C.A.)
- Valdes, Roberto Manuel Olivares v.
M.C.I.
(F.C.T.D.,
no. IMM-1902-97), Pinard,
April 24, 1998
- Valentin v. Canada (Minister
of Employment and Immigration), [1991] 3 F.C.
390 (C.A.)
- Vasudevan, Prakash v. S.S.C.
(F.C.T.D.,
no. IMM-81-94), Gibson, July 11,
1994
- Vidhani v. Canada (Minister
of Citizenship and Immigration), [1995] 3 F.C.
60 (T.D.)
- Ward: Canada (Attorney General) v.
Ward, [1993] 2 S.C.R.
689, 103 D.L.R. (4th) 1, 20 Imm.
L.R. (2d) 85
- Xiao, Mei Feng v. M.C.I.,
(F.C.T.D.,
no. IMM- 953-00), Muldoon,
March 16, 2002; 2001 FCT
195
- Xie, Sheng v. M.E.I.
(F.C.T.D.,
no. A-1573-92), Rothstein,
March 3, 1994
- Yoli, Hernan Dario v. M.C.I.
(F.C.T.D.,
no. IMM-399-02), Rouleau,
December 30, 2002; 2002 FCT
1329
- Yusuf v. Canada (Minister
of Employment and Immigration), [1992] 1 F.C.
629 (C.A.)
- Zheng, Jin Dong v. M.C.I.
(F.C.T.D.,
no. IMM-2415-01), Martineau,
April 19, 2002; 2002 FCT
448
- Zhu v. M.C.I.
(F.C.T.D.,
no. IMM-2746-00) Muldoon,
August 13, 2001
- Zolfagharkhani v. Canada
(Minister of Employment and Immigration), [1993] 3 F.C.
540 (C.A.)
- Sagharichi, Mojgan v.
M.E.I.
(F.C.A.,
no. A-169-91), Isaac, Marceau,
MacDonald, August 5, 1993, at 2.
Reported: Sagharichi v.
Canada (Minister of Employment and Immigration) (1993), 182 N.R.
398 (F.C.A.);
Saddouh (Kaddouh), Sabah v.
M.E.I.
(F.C.T.D.,
no. IMM-2200-93), Denault,
February 2, 1994. Leave to appeal to the Supreme Court of Canada
was denied without reasons on February 17, 1998 (S.C.C.
File no. 23826).
- Canada (Attorney General) v.
Ward, [1993] 2 S.C.R.
689, 20 Imm.
L.R. (2d) 85.
- Ward, ibid., at 733-734. See
also Cheung v. Canada (Minister
of Employment and Immigration), [1993] 2 F.C.
314 (C.A.), at
324-5.
- Chan v.
Canada (Minister of Employment and Immigration), [1995] 3 S.C.R.
593, at 635.
- Chan, ibid., at 635. The majority of
the Court decided the case on other grounds and did not rule explicitly
on this issue. For a more detailed discussion of the Chan judgment,
see Chapter 9, section 9.3.7. With respect to considering Canadian standards
or laws see Antonio, Pacato Joao v.
M.E.I.
(F.C.T.D.,
no. IMM-1072-93), Nadon,
September 27, 1994, at 11-12. See also the UNHCR
Handbook, paragraph 60.
- El Khatib, Naif v.
M.C.I.
(F.C.T.D.,
no. IMM-5182-93), McKeown,
September 27, 1994, at 4. The appeal was dismissed by the Federal
Court of Appeal: M.C.I.
v. El Khatib, Naif (F.C.A.,
no. A-592-94), Strayer, Robertson,
McDonald, June 20, 1996.
- Naikar, Muni Umesh v.
M.E.I.
(F.C.T.D.,
no. 93-A-120), Joyal, June 17,
1993, at 2; Sagharichi, supra, footnote 1, at 2 (unreported);
Saddouh, supra, footnote 1. See also Kwiatkowsky v.
Canada (Minister of Employment and Immigration), [1982] 2 S.C.R.
856, at 862 and 863. The Trial Division has also distinguished between
persecution and mere unfairness: Chen, Yo Long v.
M.C.I.
(F.C.T.D.,
no. IMM-487-94), Richard,
January 30, 1995, at 4.
- Sagharichi, supra, footnote 1, at 2,
per Marceau J.A. Even though the claimant may not be able to point to
an individual episode of mistreatment which could be characterized as
persecution, the claimant may still have experienced persecution or
have good grounds for fearing persecution: see the discussion of cumulative
acts in section 3.1.2. of this chapter, and the discussion of well-founded
fear in Chapter 5.
- Nejad, Hossein Hamedi v.
M.C.I.
(F.C.T.D.,
no. IMM-2687-96), Muldoon,
July 29, 1997, at 2. In the typescript of the Court's reasons, the first
portion of this passage is presented as though it were part of a quotation
from Yusuf v. Canada (Minister
of Employment and Immigration), [1992] 1 F.C.
629 (C.A.); however,
the statements in question do not actually appear in that case, and
seem instead to have been the words of Muldoon J. himself. On this same
theme, see paragraphs 40 and 52 of the UNHCR
Handbook.
- Compare these lines with the affirmation in Ward,
at 747, that "[t]he examination of the circumstances should be approached
from the perspective of the persecutor
", and with the emphasis
placed upon the intent of a law (which may be equated with the intent
of the agent of persecution) by Zolfagharkhani v.
Canada (Minister of Employment and Immigration), [1993] 3 F.C.
540 (C.A.), at
552, quoted in Chapter 9, section 9.3.2. (proposition 1). Compare also
Zolfagharkhan i's assertion, at 552, that the neutrality of
a law is to be judged objectively: see Chapter 9, section 9.3.2. (proposition
2).
- Ward, supra, footnote 2, at 733-734.
See excerpt reproduced at pages 1-2 of this Chapter.
- Rajudeen, Zahirdeen v.
M.E.I.
(F.C.A.,
no. A-1779-83), Heald, Hugessen,
Stone (concurring), July 4, 1984. Reported: Rajudeen v.
Canada (Minister of Employment and Immigration) (1984), 55 N.R.
129 (F.C.A.).
- Rajudeen, ibid., at 133-134, per Heald
J.A.
- Valentin v.
Canada (Minister of Employment and Immigration), [1991] 3 F.C.
390 (C.A.), at
396, per Marceau J.A.
- See also Kadenko, Ninal v.
S.G.C. (F.C.T.D.,
no. IMM-809-94), Tremblay-Lamer,
June 9, 1995. Reported: Kadenko v.
Canada (Solicitor General) (1995), 32 Imm.
L.R. (2d) 275 (F.C.T.D.),
rev'd M.C.I.
v. Kadenko, Ninal (F.C.A.,
no. A-388-95), Décary,
Hugessen, Chevalier, October 15, 1996, where the Trial Division,
at 6, considered a dictionary definition of "isolated", and concluded
that, where repeated incidents of harassment, together with physical
attacks, had occurred over the course of a year and a half, it was unreasonable
to speak of "isolated" acts. (The Court of Appeal reversed the decision
on the issue of state protection and did not deal with the persecution
findings. Leave to appeal to the Supreme Court of Canada was denied
without reasons on May 8, 1997 (S.C.C.
File no. 25689)). In Ahmad,
Rizwan v. S.G.C. (F.C.T.D.,
no. IMM-7180-93), Teitelbaum,
March 14, 1995, at 7 (French version), the Court distinguished
between systematic events and ones that were only periodic.
- Abramov, Andrei v.
M.C.I.
(F.C.T.D.,
no. IMM-3576-97), Tremblay-Lamer,
June 15, 1998.
- In two decisions, the Trial Division has certified
questions regarding the need for persistence, the questions being almost
identical in the two cases: Murugiah, Rahjendran v.
M.E.I.
(F.C.T.D.,
no. 92-A-6788), Noël,
May 18, 1993, at 6; and Rajah, Jeyadevan v.
M.E.I.
(F.C.T.D.,
no. 92-A-7341), Joyal, September 27,
1993, at 5-6. In Rajah, the question was phrased thus: "Whether
'persecution' within the meaning of the Convention Refugee definition
requires systematic and persistent acts or whether one or two violations
of basic and inalienable rights such as forced labour or beatings while
in police detention is enough to constitute 'persecution'."
Essentially the same question was proposed for certification in Muthuthevar,
Muthiah v. M.C.I.
(F.C.T.D.,
no. IMM-2095-95), Cullen,
February 15, 1996. Cullen J., declining to certify, said at 5:
"I think it is settled law that, in some instances, even a single
transgression of the applicant's human rights would amount to persecution."
See also Gutkovski, Alexander v.
S.S.C.
(F.C.T.D.,
no. IMM-746-94), Teitelbaum,
April 6, 1995, where at page 9, the Court noted: "
the
events must be sufficiently serious or systematic to amount to a reasonable
fear of persecution." (emphasis in original). However, note the
discussion in Chapter 9, section 9.3.3. regarding "Policing Methods,
National Security and Preservation ofSocial Order".
- Ward, supra, footnote 2, at 732. See
also the excerpt from Rajudeen, supra, footnote 12, reproduced
in section 3.1.1.2. of this Chapter. And see Karaseva, Tatiana v.
M.C.I.
(F.C.T.D.,
no. IMM-4683-96), Teitelbaum,
November 26, 1997, at paragraphs 10, 14-15, and 17-22. In Molaei,
Farzam v. M.C.I.
(F.C.T.D.,
no. IMM-1611-97), Muldoon,
January 28, 1998, the Court noted that there must be a nexus between
the personal situation of the claimant and the general situation of
the country of nationality in which the claimant fears persecution.
And in Cetinkaya, Lukman v.
M.C.I.
(F.C.T.D.,
no. IMM-2559-97), Muldoon,
July 31, 1998, the Court noted that while certain members of the PKK
in Turkey may face persecution, it is for the claimant to demonstrate
that she falls within that class of individuals who face persecution,
as well as to provide the necessary link between her actions and the
persecution feared. See also the recent case of Li, Qing Bing v.
M.C.I.
(F.C.T.D.,
no. IMM-5095-98), Reed, August
27, 1999, where the claimant stated, among other things, that the government
of China does not provide basic medical services, nor does it allow
him an adequate opportunity to earn a living. The Court agreed with
the CRDD
that there was no nexus between the claimant's hardships and a Convention
ground.
- Bhatti, Naushaba v.
Canada (Secretary of State) (F.C.T.D.,
no. A-89-93), Jerome, September
14, 1994.
- Pour-Shariati, Dolat v.
Canada v. M.E.I.
(F.C.A.,
no. A-721-94), MacGuigan,
Robertson, McDonald, June 10, 1997 , at 4. Followed in Kanagalingam,
Uthayakumari v. M.C.I.
(F.C.T.D.,
no. IMM-566-98), Blais, February
10, 1999, where the Court held that the loss of the claimant's father,
brother and fiancé at the time when the IPKF governed the security
situation in the north of Sri Lanka, was indirect persecution and, therefore,
not persecution within the meaning of the definition. The Trial Division
recently certified the following question in Gonzalez, Brenda Yojana
v. M.C.I.
(F.C.T.D.,
no. IMM-1092-01), Dawson,
March 27, 2002; 2002 FCT
345: "Can a refugee claim succeed on the basis of a well founded fear
of persecution for reason of membership in a particular social group
that is a family, if the family member who is the principal target of
the persecution is not subject to persecution for a Convention reason?"
- Abrego, Apolonio Paz v.
M.E.I.(F.C.A.,
no. A-348-91), Hugessen,
Linden, Holland, February 18, 1993.
- See Chapter 4, section 4.7. See also Atwal,
Mohinder Singh v. M.C.I.
(F.C.T.D.,
no. IMM-6769-98), Nadon,
November 17, 1999, where the Court agreed with the CRDD
that there was no nexus between the applicant's claim and a Convention
ground as the alleged acts of persecution were the result of personal
vengeance and not the result of the claimant's political opinions.
- Cortez, Delmy Isabel v.
S.S.C.
(F.C.T.D.,
no. IMM-2482-93), McKeown,
December 15, 1993, at 2. See also Pierre-Louis, Edy v.
M.E.I.
(F.C.A.,
no. A-1264-91), Hugessen,
MacGuigan, Décary, April 29, 1993, at 2 (personal vengeance);
Sirin, Hidayet v. M.C.I.
(F.C.T.D.,
no. IMM-5720-93), Pinard,
November 28, 1994 (family vendetta); Balendra, Cheran v.
M.C.I.
(F.C.T.D.,
no. IMM-1653-94), Richard,
January 30, 1995, at 3 (police corruption); and Karaseva,
supra, footnote 18, at 14-15, and 17-22 (crimes allegedly with
ethnic motivation).
- Alifanova, Nathalia v.
M.C.I.
(F.C.T.D.,
no. IMM-5501-97), Teitelbaum,
December 11, 1998.
- Canada (Minister of Employment and Immigration)
v. Mayers, [1993] 1 F.C.
154 (C.A.).
- Mayers, ibid., at 169-170, per Mahoney
J.A.
- Diluna, Roselene Edyr Soares v.
M.E.I.
(F.C.T.D.,
no. IMM-3201-94), Gibson,
March 14, 1995. Reported: Diluna v.
Canada (Minister of Employment and Immigration) (1995), 29 Imm.
L.R. (2d) 156 (F.C.T.D.),
at 4. In an earlier decision, the Trial Division seemed inclined to
the view that the abuse involved in the case did constitute persecution:
Narvaez v. Canada (Minister
of Citizenship and Immigration), [1995] 2 F.C.
55 (T.D.), at 64
and 70-1. See also Rodionova, Svetlana v.
M.E.I.
(F.C.T.D.,
no. 92-A-6839), Strayer,
July 7, 1993; and Jebnoun, Fadhila v.
M.C.I.
(F.C.T.D.,
no. IMM-6261-93), McGillis,
January 12, 1995. Reported: Jebnoun v.
Canada (Minister of Citizenship and Immigration) (1995), 28 Imm.
L.R. (2d) 67 (F.C.T.D.).
- Aros, Angelica Elizabeth Navarro v.
M.C.I.
(F.C.T.D.,
no. IMM-4480-96), MacKay,
February 11, 1998.
- See, for example, Ravji, Shahsultan Meghji
v. M.E.I.
(F.C.T.D.,
no. A-897-92), McGillis,
August 4, 1994 (the particular harm in question should have been
considered by the Refugee Division in its assessment of cumulative acts).
- See, for example: Gomez-Rejon, Bili v.
M.E.I.
(F.C.T.D.,
no. IMM-470-93), Joyal, November 25,
1994, at 3 and 8; Chen, supra, footnote 7, at 5; and Karpounin,
Maxim Nikolajevitsh v. M.E.I.
(F.C.T.D.,
no. IMM-7368-93), Jerome,
March 10, 1995. In Rawji, Riayz v.
M.E.I.
(F.C.T.D.,
no. IMM-5929-93), Gibson,
November 25, 1994, where crime had befallen the claimant and police
had refused to investigate unless bribed, the Court indicated, at 2,
that neither persecution nor nexus to a Convention ground was involved.
See also Chapter 4, section 4.7. In Kaur, Biba v.
M.C.I.
(F.C.T.D.,
no. IMM-305-96), Jerome,
January 17, 1997, the claimant had been raped while in detention. The
Refugee Division characterized her as a "random victim of violence",
finding no nexus to a Convention ground (and also no well-foundedness),
but the Court held that the mistreatment "
was a direct consequence
of her detention for political reasons". (at 2)
In Mousavi-Samani, Nasrin v.
M.C.I.
(F.C.T.D.,
no. IMM-4674-96), Heald,
September 30, 1997, the claimants had exposed fraud perpetrated by
state officials, and feared retaliation and prosecution. As in Rawji,
the Refugee Division had found both persecution and nexus to be lacking,
and the Court upheld these findings.
For recent cases where the Court upheld the CRDD's
finding of no nexus based on criminality, see: Montoya, Hernan
Dario Calderon v. M.C.I.
(F.C.T.D.,
no. IMM-5027-00), Hansen,
January 18, 2002; 2002 FCT
63 (family targeted for kidnapping because of their wealth); Bencic,
Eva v. M.C.I.
(F.C.T.D.,
no. IMM-3711-00), Kelen,
April 26, 2002; 2002 FCT
476 (persecution directly related to criminals seeking to extort money
and automobiles); and Yoli, Hernan Dario v.
M.C.I.
(F.C.T.D.,
no. IMM-399-02), Rouleau,
December 30, 2002; 2002 FCT
1329 (claimant had evidence regarding perpetrators' identity and criminal
activities).
- See, for example, Dragulin, Constantin Marinescu
v. S.G.C. (F.C.T.D.,
no. IMM-46-94), Rouleau,
December 23, 1994, at 3-5; and Njoko, Tubila v.
M.E.I.
(F.C.T.D.,
no. A-1698-92), Jerome, January 25,
1995, at 2.
- Ansar, Iqbal v.
M.C.I.
(F.C.T.D.,
no. IMM-4124-97), Campbell,
July 22, 1998.
- Ward, supra, footnote 2, at 709, 717,
720-1; Chan (S.C.C.),
supra, footnote 4, per La Forest (dissenting) at 630.
- Bougai, Zoia (a.k.a. Bougai, Zoya) v.
M.C.I.
(F.C.T.D.,
no. IMM-4966-94), Gibson,
June 15, 1995, at 6.
- Malchikov, Alexander v.
M.C.I.
(F.C.T.D.,
no. IMM-1673-95), Tremblay-Lamer,
January 18, 1996, at 6 (French version).
- Moudrak, Vanda v.
M.C.I.
(F.C.T.D.
no. IMM-1480-97), Teitelbaum,
April 1, 1998.
- Valdes, Roberto Manuel Olivares v.
M.C.I.
(F.C.T.D.,
no. IMM-1902-97), Pinard,
April 24, 1998.
- Madelat, Firouzeh v.
M.E.I.,
Mirzabeglui, Maryam v. M.E.I.
(F.C.A.,
nos. A-537-89 and A-538-89), MacGuigan, Mahoney, Linden, January 28,
1991; Retnem, Rajkumar v.
M.E.I.
(F.C.A.,
no. A-470-89), MacGuigan,
Décary, Pratte (dissenting), May 6, 1991. Reported: Retnem
v. Canada (Minister of Employment
and Immigration) (1991), 13 Imm.
L.R. (2d) 317 (F.C.A.),
at 319; Iossifov, Svetoslav Gueorguiev v.
M.E.I.
(F.C.T.D.,
no. A-854-92), McKeown, December 8,
1993, at 2.
- El Khatib, supra, footnote 6, at 3;
Nina, Razvan v. M.C.I.
(F.C.T.D.,
no. A-725-92), Cullen, November 24,
1994, at 9. For an examination of cumulative acts in the context of
an internal flight alternative, see Chapter 8, section 8.4.1.
In Horvath v. M.C.I.
(F.C.T.D.,
no. IMM-4335-99), MacKay,
April 27, 2001, referring to Retnem, supra, footnote
38, the Court held that it was an error for the Board to fail to consider
the cumulative effect of the treatment suffered by the claimants when
that treatment was consistently accepted as being discriminatory and
as indicative of serious problems facing Roma in Hungary. Horvath
was cited with approval in Keninger v.
M.C.I.
(F.C.T.D.,
no. IMM-3096-00), Gibson,
July 6, 2001.
Furthermore, in Bursuc, Cristinel v.
M.C.I.
(F.C.T.D.,
no. IMM-5706-01), Dawson,
September 11, 2002; 2002 FCT
957 , the Court held that, in considering the cumulative effect of
incidents, the CRDD
must have regard to the whole of the evidence, and not just evidence
after the culminating incident.
- Kadhm, Suhad Mohamed v.
M.C.I.
(F.C.T.D.,
no. IMM-652-97), Muldoon,
January 8, 1998.
- Rodriguez-Hernandez, Severino Carlos v.
S.S.C.
(F.C.T.D.,
no. A-19-93), Wetston, January 10,
1994, at 3.
- Chan v.
Canada (Minister of Employment and Immigration), [1993] 3 F.C.
675; (1993), 20 Imm.
L.R. (2d) 181 (C.A.),
aff'd Chan (S.C.C.),
supra, footnote 4, per Desjardins J.A. at 723. In Mendoza,
Elizabeth Aurora Hauayek v. M.C.I.
(F.C.T.D.,
no. IMM-2997-94), Muldoon,
January 24, 1996, at 4: the Court said that rape "
is a form
of brutality especially utilizable for the humiliation and brutalization
of women. It is not to be treated lightly
". In Arguello-Garcia,
Jacobo Ignacio v. M.E.I.
(F.C.T.D.,
no. 92-A-7335), McKeown,
June 23, 1993. Reported: Arguello-Garcia v.
Canada (Minister of Employment and Immigration) (1993), 21 Imm.
L.R. (2d) 285 (F.C.T.D.),
at 287, sexual abuse was part of the persecution suffered by the male
claimant. But see Cortez, supra, footnote 23, where the rape
was found not to constitute persecution. See also Chapter 9, section
9.3.3. for further discussion of measures such as beating.
In Iruthayanathar, Joseph v.
M.C.I.
(F.C.T.D.,
no. IMM-3619-99), Gibson,
June 15, 2000, while following Thirunavukkarasu v.
Canada (Minister of Employment and Immigration), [1994] 1 F.C.
589 (C.A.), (discussed
in Chapter 9, section 9.3.3.), the Court determined that beatings
in detention, alone, can constitute persecution.
- Porto, Javier Cardozo v.
M.E.I.
(F.C.T.D.,
no. A-1549-92), Noël,
September 3, 1993, at 3.
- Munoz, Alfonso La Rotta v.
M.C.I.
(F.C.T.D.,
no. IMM-2207-93), Pinard,
November 28, 1994, at 3.
- Gidoiu, Ion v.
S.S.C.
(F.C.T.D.,
no. IMM-2907-94), Wetston,
April 6, 1995, at 1.
- Antonio, supra, footnote 5, at 11-12,
where the offence in question was treason (in the form of espionage
and sabotage); Chu, Zheng-Hao v.
M.C.I.
(F.C.T.D.,
no. IMM-5159-94), Jerome,
January 17, 1996, at 5. See also Singh, Tejinder Pal v.
M.C.I.
(F.C.T.D.,
no. IMM-5294-97), Muldoon,
December 23, 1997 (supplementary reasons), at paragraphs 9-13.
- Cheung, supra, footnote 3, at 324, per
Linden J.A.: "the forced sterilization of women is a fundamental violation
of basic human rights. It violates Articles 3 and 5 of the United
Nations Universal Declaration of Human Rights." With respect to
sterilization and abortion, see Chapter 9, section 9.3.7., where the
one-child policy in China is discussed.
- Chan (S.C.C.),
supra, footnote 4, per La Forest J. (dissenting) at 636. The
majority in the Supreme Court did not expressly comment on the issue,
although Mr. Justice Major appeared
to assume that forced sterilization would indeed constitute persecution:
see, for example, 658 and 672-673. See also Chan (F.C.A.),
supra, footnote 42, per Heald J.A. at 686, and per Mahoney
J.A. (dissenting) at 704.
- Lai, Quang v.
M.E.I.
(F.C.T.D.,
no. IMM-307-93), McKeown,
May 20, 1994, at 2.
- Annan v.
Canada (Minister of Citizenship and Immigration), [1995] 3 F.C.
25 (T.D.).
- Oyarzo v.
Canada (Minister of Employment and Immigration), [1982] 2 F.C.
779 (C.A.), at
782, per Heald J. See also Amayo v.
Canada (Minister of Employment and Immigration), [1982] 1 F.C.
520 (C.A.); and
Asadi, Sedigheh v. M.C.I.
(F.C.T.D.,
no. IMM-1921-96), Lutfy,
April 18, 1997, at 3.
- Ammery, Poone v.
S.S.C.
(F.C.T.D.,
no. IMM-5405-93), MacKay,
May 11, 1994, at 4. Nejad, supra, footnote 9.
- Bragagnini-Ore, Gianina Evelyn v.
S.S.C.
(F.C.T.D.,
no. IMM-2243-93), Pinard,
February 4, 1994, at 2.
- Kicheva, Zorka v.
M.E.I.
(F.C.T.D.,
no. A-625-92), Denault, December 23,
1993, at 2.
- Ling, Che Keung v.
M.E.I.
(F.C.T.D.,
no. 92-A-6555), Muldoon,
May 20, 1993.
- Sulaiman, Hussaine Hassan v.
M.C.I.
(F.C.T.D.,
no. IMM-525-94), MacKay,
March 22, 1996, at 6-7 and 11-12.
- Namitabar v.
Canada (Minister of Employment and Immigration), [1994] 2 F.C.
42 (T.D.), at 47;
Fathi-Rad, Farideh v. S.S.C..
(F.C.T.D.,
no. IMM-2438-93), McGillis,
April 13, 1994, at 4-5. Compare Hazarat, Ghulam v.
S.S.C..
(F.C.T.D.,
no. IMM-5496-93), MacKay,
November 25, 1994, at 3-4.See the discussion of "Restrictions Upon
Women" in section 9.3.8.1 of Chapter 9. In Canada (Secretary
of State) v. Namitabar (F.C.A.,
no. A-709-93), Décary,
Hugessen, Desjardins, October 28, 1996, the Court overturned the Trial
Division on the basis that the CRDD
credibility findings were not ambiguous. With respect to the issue of
wearing veils in Iran, the Court was of the view that "the Refugee
Division may have expressed itself incorrectly [but] that has no importance
in the case at bar since the female [claimant] voluntarily complied
with the clothing code and did not even display reluctance to do so.
See also Rabbani, Farideh v.
M.C.I.
(F.C.T.D.,
no. IMM-2032-96), McGillis,
June 3, 1997, at 2."
- Daghmash, Mohamed Hussein Moustapha
v. M.C.I.
(F.C.T.D.,
no. IMM-4302-97), Lutfy,
June 19, 1998.
- Maarouf v.
Canada (Minister of Employment and Immigration), [1994] 1 F.C.
723 (T.D.), at 738.
See also Abdel-Khalik, Fadya Mahmoud v.
M.E.I.
(F.C.T.D.,
no. IMM-883-93), Reed, January 31,
1994. Reported: Abdel-Khalik v.
Canada (Minister of Employment and Immigration) (1994), 23 Imm.
L.R. (2d) 262 (F.C.T.D.),
at 263. But see Altawil, Anwar Mohamed v.
M.C.I.
(F.C.T.D.,
no. IMM-2365-95), Simpson,
July 25, 1996.
- Arafa, Mohammed v.
M.E.I.
(F.C.T.D.,
no. A-663-92), Gibson, November 3,
1993, at 4-5. As to the possibility that harsh policies on the granting
of citizenship, or limitations imposed upon permanent residents, might
constitute persecution, see Falberg, Victor v.
M.C.I.
(F.C.T.D.,
no. IMM-328-94), Richard,
April 19, 1995, at 4.
- Cheung, supra, footnote 3, at 323; Chan
(F.C.A.),
supra, footnote 42, at 688, per Heald J.A.; Lai, supra,
footnote 49, at 3.
- Lin, Qu Liang v.
M.E.I.
(F.C.A.,
no. 93-A-142), Rouleau,
July 20, 1993. Reported: Lin v.
Canada (Minister of Employment and Immigration) (1993), 24 Imm.
L.R. (2d) 208 (F.C.T.D.),
at 211.
- Xie, Sheng v.
M.E.I.
(F.C.T.D.,
no. A-1573-92), Rothstein,
March 3, 1994, at 5-6. Similarly, in Soto, Marie Marcelina
Troncoso v. M.C.I.
(F.C.T.D.,
no. IMM-3734-01), Tremblay-Lamer,
July 10, 2002; 2002 FCT
768, the Court held that it is not acceptable to suggest that a visually
impaired person, who is trained to use a guide dog, should not bring
her guide dog to work in order to find employment.
- He, Shao Mei v.
M.E.I.
(F.C.T.D.,
no. IMM-3024-93), Simpson,
June 1, 1994. Reported: He v.
Canada (Minister of Employment and Immigration) (1994), 25 Imm.
L.R. (2d) 128 (F.C.T.D.).
- Ramirez, Rosa Etelvina v.
S.G.C. (F.C.T.D.,
no. IMM-1192-94), Rouleau,
December 9, 1994, at 5. See also Chen , at 4.
- Lerer, Iakov v.
M.C.I.
(F.C.T.D.,
no. IMM-7438-93), Cullen,
January 5, 1995, at 5-6.
- Sinnathamby, Jayasrikanthan v.
M.E.I.
(F.C.T.D.,
no. IMM-179-93), Noël,
November 2, 1993. Reported: Sinnathamby v.
Canada (Minister of Employment and Immigration) (1993), 23 Imm.
L.R. (2d) 32 (F.C.T.D.)
at 36. See also: Mortera, Senando Layson v.
M.E.I.
(F.C.T.D.,
no. A-1084-92), McKeown,
December 8, 1993; Vasudevan, Prakash v.
S.S.C..
(F.C.T.D.,
no. IMM-81-94), Gibson, July 11,
1994; Gnanam, Ulakanayaki v.
M.E.I.
(F.C.T.D.,
no. IMM-2165-93), Simpson,
August 31, 1994 (reasons signed March 31, 1995), at 2 and
4; Sivapoosam, Sivakumar v.
M.C.I.
(F.C.T.D.,
no. IMM-2674-95), Reed, June 19,
1996, at 4-5; and Srithar, Suntharalingam v.
M.C.I.
(F.C.T.D.,
no. IMM-158-97), Tremblay-Lamer,
October 10, 1997, at 4-5 (extortion by corrupt military personnel).
- Cheung, supra, footnote 3, at 325.
- Ali, Shaysta-Ameer v.
M.C.I.
(F.C.T.D.,
no. IMM-3404-95), McKeown,
October 30, 1996. Reported: Ali v.
Canada (Minister of Citizenship and Immigration) (1996), 36 Imm.
L.R. (2d) 34 (F.C.T.D.).
- Thathaal, Sabir Hussain v.
S.S.C.
(F.C.T.D.,
no. A-1644-92), McKeown,
December 15, 1993, at 2. Appeal to the Federal Court of Appeal
dismissed April 16, 1996 (F.C.A.,
no. A-724-93).
- Vidhani v.
Canada (Minister of Citizenship and Immigration), [1995] 3 F.C.
60, (T.D.), at 65.
- Frid, Mickael v.
M.C.I.
(F.C.T.D.,
no. IMM-6694-93), Rothstein,
December 15, 1994, at 3.
- Igumnov, Sergei v.
M.C.I.
(F.C.T.D.,
no. IMM-6993-93), Rouleau,
December 16, 1994, at 3-5. See also Gutkovski, supra,
footnote 17, at 2 and 4.
- Kassatkine, Serguei v.
M.C.I.
(F.C.T.D.,
no. IMM-978-95), Muldoon,
August 20, 1996, at 4. And see Kazkan, Shahrokh Saeedi v.
M.C.I.
(F.C.T.D.,
no. IMM-1313-96), Rothstein,
March 20, 1997.
- Chen, Shun Guan v.
M.C.I.
(F.C.T.D.,
no. IMM-1433-96), Lutfy,
January 31, 1997, at 2-3, citing the UNHCR
Handbook, paragraph 72.
- Lin, supra, footnote 62, at
211.
- Abouhalima, Sherif v.
M.C.I.
(F.C.T.D.,
no. IMM-835-97), Gibson,
January 30, 1998.
- M.C.I.
v. Lin (F.C.A.,
no. A-3-01) Desjardins, Décary,
Sexton, October 18, 2001. See also Zhu v.
M.C.I.
(F.C.T.D.,
no. IMM-2746-00) Muldoon,
August 13, 2001.
- In Zheng, Jin Dong v.
M.C.I.
(F.C.T.D.,
no. IMM-2415-01), Martineau,
April 19, 2002; 2002 FCT
448, the basis for this argument was that minors could not consent to
being trafficked. The Court upheld the CRDD's
decision, where the panel assessed the issue of consent with regard
to this particular minor claimant, relying upon Xiao, Mei Feng v.
M.C.I.,
(F.C.T.D.,
no. IMM- 953-00), Muldoon,
March 16, 2002; 2001 FCT
195.
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