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CHAPTER 5
5. WELL-FOUNDED FEAR
5.1. GENERALLY
The definition of Convention refugee is forward-looking.
It follows, therefore, that the fear of persecution is to be assessed
at the time of the examination of the claim to refugee status.1
The claimant must establish that the fear is reasonable,2 i.e.
is justified considering the objective situation. In other words, the
claimant must establish that his or her fear of persecution has a valid
basis.3
Most importantly, the claimant does not have to
establish that he or she was persecuted in the past or that he or she
would or will be persecuted in the future.4
Although evidence relating to a past fear of persecution can properly
be the foundation of a present fear,5
there is no requirement to show past persecution to substantiate a claim
for refugee status.
The mere existence of an oppressive law which is
enforced only sporadically does not by itself show that all members of
the group targeted by the law have good grounds for fearing persecution.6
In establishing whether a fear is well founded,
the state's ability to protect should be considered. The Supreme Court
has held that: "The test is in part objective; if a state is able to protect
the claimant, then his or her fear is not, objectively speaking, well-founded."7
5.2. TEST - STANDARD OF PROOF
The claimant must establish, on a balance of probabilities,
that there are "good grounds" for fearing persecution.8This
may also be called a "reasonable" or even a "serious" possibility, as
opposed to a "mere" possibility.9
The test for well-foundedness was further clarified
in Ponniah,10 where Desjardins J.A. stated:
"Good grounds" or "reasonable chance" is defined in Adjei
as occupying the field between upper and lower limits; it is less than
a 50 per cent chance (i.e.,
a probability), but more than a minimal or mere possibility. There is
no intermediate ground: what falls between the two limits is "good grounds".
The Federal Court has held that certain phrasing
in CRDD
reasons, such as "we are not convinced" or "the claimant did not convince
us", implied overly exacting standards of proof.11
5.3. SUBJECTIVE FEAR AND OBJECTIVE BASIS
The subjective fear relates to the existence of
a fear of persecution in the mind of the claimant. The objective basis
requires that there be a valid basis for this fear.12
A claimant may have a subjective fear that he or she will be persecuted
if returned to his or her country, but the fear must be assessed objectively
in light of the situation in the country of which the claimant is a national
to determine whether it is well founded.13
Both subjective fear and an objective basis for
it are crucial elements. In Kamana,14
Madam Justice Tremblay-Lamer held that the panel's finding that the claimant
had not credibly established the subjective element was reasonable and
that:
The lack of evidence going to the subjective element of the
claim is a fatal flaw which in and of itself warrants dismissal of the
claim, since both elements of the refugee definition -- subjective and
objective -- must be met.
This decision has been followed by a number of judges
at the Trial Division15
despite an earlier decision by the Federal Court of Appeal which found
that the soundness of rejecting a claim because of the absence of subjective
fear in the presence of an objective basis for the fear, was "doubtful."
In Yusuf16
Hugessen J.A. stated:
I find it hard to see in what circumstances it could be said
that a person who, we must not forget, is by definition claiming refugee
status could be right in fearing persecution and still be rejected because
it is said that fear does not actually exist in his conscience.
The applicant in Maqdassy17
relied on Yusuf to argue that it might not be necessary to establish
a subjective fear of persecution where an objective fear had been shown
to exist. Justice Tremblay-Lamer disagreed, noting that Yusuf
had been decided prior to Ward18,
in which the Supreme Court made it clear that both components of the test
were required. In Geron19, a case decided several months later, Mr. Justice Blanchard also referred to Ward as authority for finding
that the lack of evidence going to the subjective element of the claim
was a "fatal flaw".
5.3.1. Establishing the Subjective and Objective
Elements
A claimant's mental condition should not normally
be used to argue that he or she cannot establish a subjective fear.20
The testimony of a trustworthy third party may make
it possible to establish the objective aspect of the claimant's fear;
in other words, this third party can establish the objective probability
of the fear alleged by the claimant.21
In the Amaniampong22
decision, the Court of Appeal refused to set aside the CRDD's
decision which found credible objective evidence but found the claimant
not credible with respect to the "subjective branch of the test".
In Parada,23
the Court found that if a claimant testifies that he fears for his life
and there is evidence to reasonably support those fears, it is improper
for the Refugee Division to reject that testimony out of hand without
making a negative finding of credibility.
In Seevaratnam,24
the Court stated that where a claimant is found not credible (as opposed
to a case where there is a total absence of credible and trustworthy evidence),
the Board must still objectively assess the rest of the evidence and determine
if the claimant has a well-founded fear of persecution.
5.4. DELAY
Delay in making a claim to refugee status
is not in itself a decisive factor. However, it is a relevant, and potentially
important consideration.25
In Huerta, Mr. Justice
Létourneau wrote:
The delay in making a claim to refugee status is not a decisive
factor in itself. It is, however, a relevant element which the tribunal
may take into account in assessing both the statements and the actions
and deeds of a claimant.26
Delay may indicate a lack of subjective fear of
persecution, the reasoning being that someone who was truly fearful would
claim refugee status at the first opportunity.27
However, the reason for the delay must be examined in each case in order
to determine whether or not the delay can be said to be truly indicative
of a lack of subjective fear. Allegations that the claimant did not know
it was possible to claim refugee status or that an agent advised him or
her to come to Canada must be assessed for credibility and reasonableness
in the claimant's circumstances.28
In Diluna,29 the Trial Division held, in obiter, that
the Refugee Division should have considered a psychiatric assessment that
supported the claimant's assertion that she delayed seeking refugee status
due to post-traumatic stress syndrome.
In Beltran,30
the Court found that the claimant had given a good explanation for delaying
making a claim, and stated that the Board should have given reasons as
to why it did not accept the explanation as valid.
In Mejia,31
the Board had found that the claimant had not left until some months after
the issuance of her passport, and apparently inferred that she had not
displayed appropriate panic. But the Court found that the Board had failed
to squarely address whether it doubted her subjective fear, and failed
to mention she had been in hiding.
In El-Naem,32
the Court found that it was unreasonable for the 19-year-old Syrian claimant
to seek for protection in Greece (where he had spent one year), given
"all the circumstances":
It is too heavy a burden to place on a young person,
impecunious and on his own, in a strange land with strange customs and
language, and without family support, to assume he would inevitably act
in a manner that reasonable persons, secure in Canada, might regard as
the only rational manner.
In Farahmandpour,33
the Court held that the CRDD
erred when it rejected the claim of a 78-year-old woman of the Baha'i
faith, (whose two sons had successfully claimed refugee status at the
Canadian embassy in Pakistan), on the basis of delay in leaving Iran and
in claiming in Canada, as well as her failure to claim in Australia and
the US. The CRDD
erred in not considering the tragic situation she found herself in after
the death of her husband and that the delays were explained by illness.
In Papsouev,34
the Court found that the Refugee Division unreasonably disregarded the
claimants' explanations that they had incurred delays in obtaining passports
and visas for their daughters. More importantly, in that case, the Court
found that the panel had no grounds to reject, on the issue of delay,
the evidence of a reputable lawyer and an officer of the Court.
In Gabeyehu,35 the Court noted that "[d]elay in making a claim
can only be relevant from the date as of which [a claimant] begins to
fear persecution." The same principle was applied to a sur place
claim in Tang.36The
Court agreed with the claimant's counsel that reliance on the claimant's
delay in making a claim starting from the time the claimant arrived in
Canada was misplaced, given that the claimant's fear of persecution arose
only afterwards. Therefore, "the date as of which he became aware that
he would allegedly face persecution on return to China [was] the relevant
date."
Mr. Justice Gibson in Yoganathan37
followed the same reasoning of the Court of Appeal in Hue,38
a case also involving a seaman. The Court held that the CRDD
erred in concluding that the claimant, a seaman, did not have a subjective
fear of persecution as he had failed to claim refugee status at the first
opportunity in other signatory countries: "The [claimant] had his 'sailor's
papers' and 'a ship to sail on'. In the circumstances, he did not have
to seek protection."
The length of the delay is not in and of itself
a determinative factor. In Liblizadeh39, the Court quashed the decision of the CRDD
when it found that there was no evidence before the panel that the claimant
might have realistically applied for refugee status in Turkey, even though
he was there 7 months, and in the U.S.,
where he was only in transit. With respect to claiming status in Canada,
the claimant met with immigration authorities two days after arriving
and was given an appointment for three weeks later, at which time he filed
his claim. And in Dcruze,40
the Court held that a delay of two years and six months between the claimant's
departure and his application was "not extreme", and that his
delay should not have been determinative of the matter; the Board should
have examined the claim on its merits.
5.4.1. Delay in leaving the country of persecution
Delay, or a failure to seek protection at the first
opportunity may occur at various points in time. For example, delay in
leaving the country after the claimant has reason to fear persecution
there is a relevant, though not determinative, consideration.41
In Voyvodov,42 the Refugee Division had found that a claimant
had failed to meet his burden because he had testified about only one
incident, and then went on to express its concern about his delay in leaving
the country. The Court said:
It is not reasonable to conclude that one applicant failed to
establish his case on the basis of only one incident and to question the
other applicant's decision to remain in Bulgaria after having been physically
abused for the first time in 1994. The tribunal appears to place the applicants
in an impossible position. It implies that it does not believe Mr.
Galev's claim of persecution because he only experienced one alleged attack
due to his sexual orientation. On the other hand, it finds that Mr.
Voyvodov is not credible because he delayed seeking international
protection after being initially attacked. This contradictory finding
also requires the Court's intervention.43
Even before the claimant leaves the country where
he or she fears persecution, there are types of conduct that are normally
associated with subjective fear. In a number of cases, adverse inferences
were drawn from the claimant's failure to go into hiding immediately after
learning that he or she may be in danger.44
5.4.2. Failure to seek protection in other countries
There is a presumption that a person fleeing persecution
will normally seek protection at the first opportunity. As a result, the
question of subjective fear is raised when a person voluntarily leaves
a country where he or she could safely live or fails without valid reason
to ask for protection in a country through which he or she has travelled.45
Failure to seek the protection of another country which is also a signatory
of the Convention46
may be a significant factor to consider with regard to subjective fear,
but is not determinative.
There are cases where Board decisions have been
overturned due to failures to properly assess plausible and uncontradicted
explanations for not seeking to remain or claim refugee status in various
countries en route to Canada. For example, in Owusu-Ansah the
Ghanaian claimant provided reasons why he could not have safely stayed
in neighbouring Togo or Nigeria. In Tung47
the claimant provided reasons for selecting Canada as a safe haven over
other countries he had considered with the assistance of his agent.
Leaving a country which has provided refuge and
where a claimant has no fear of persecution is generally considered to
be behaviour indicative of a lack of subjective fear. In Shahpari,48
the Court suggested, in obiter, that:
Applicants should also remember that actions they themselves
take which are intended to result in their not being able to return to
a country which has already granted them Convention refugee status may
well evidence an absence of the subjective fear of persecution in their
original country from which they purport to be seeking refuge.
In Bains49,
a claimant from India had applied for political asylum in England, but
left after waiting five or six years without an answer because he heard
that the British authorities were removing claimants awaiting status.
The CRDD
was justified in verifying the reasons the claimant gave for leaving England
and its decision that the claimant lacked the subjective fear was reasonable.
The claimant's decision to leave England did not demonstrate that his
fear of being returned to India was well-founded.
In Geron50
the Board concluded that the claimants, citizens of the Philippines, were
not credible and lacked subjective fear, as evidenced by the long delay
before they claimed refugee status and the fact that they had valid residence
permits for Italy but allowed them to lapse during the 18 months they
remained in Canada prior to making their claims. The Court held that the
Board had not erred in failing to consider the objective basis of the
claim; it could be dismissed in the absence of any credible evidence to
support the claimants' subjective fear.
5.4.3. Delay in making a claim upon arrival in
Canada
It is expected that, absent a good reason, a person
with a genuine fear of persecution whose intention it is to seek refuge
in Canada will do so immediately upon arrival.51
In the absence of any adverse credibility finding,
the explanation that a claimant did not know that she could claim refugee
status based on spousal abuse has successfully been used to refute findings
that lengthy delays in claiming were due to an absence of subjective fear.52
5.5. RE-AVAILMENT OF PROTECTION
Return to the country of nationality may indicate
that a well-founded fear of persecution is lacking where the claimant's
conduct is inconsistent with such fear.53
Obtaining or renewing a passport or travel document,54
and leaving or emigrating through lawful channels may also indicate that
a well-founded fear of persecution is lacking.55
It is proper for the Refugee Division, when considering
the subjective element, to look at the fact that the claimant took allegedly
self-endangering actions after making his or her claim, and to inquire
into the claimant's motivation.56
But if the claimant gives reasons why he or she returned to his or her
country, clearly states that he or she did not re-avail of the protection
of that country and asserts not to have lost his or her subjective fear,
absent an adverse finding of credibility, the Board would err in finding,
on the basis of the purely circumstantial evidence of such returns, that
the claimant had re-availed him or herself of protection and did not have
a subjective fear.57
5.6. SUR PLACE CLAIMS AND WELL-FOUNDED FEAR
Mr. Justice Hugessen had occasion to examine the relevance of motive in cases
where the claimants themselves were responsible for creating the circumstances
leading to their sur place claims. In one case, he stated:
In my view, it has been the law for a very long time that a
Convention refugee claimant must demonstrate both an objective and a subjective
basis for his fear of persecution. It is my view that the case will be
rare where there is an objective fear but not a subjective fear, but such
cases may exist. In my view, it is certainly relevant to examine the motives
underlying a claimant's participation in demonstrations such as this one
in order to determine whether or not that claimant does have a subjective
fear. The Board's examination of the motives was therefore not an irrelevant
matter and the determination which they reached on that subject was one
which was open to them on the evidence. It would I agree have been an
error if the Board had stopped its examination at that point and had not
also looked at whether or not the claimant had an objective fear but,
they did not commit that error. The Board looked at the evidence with
respect to the objective basis for the applicant's fear of return and
found it not to be well-founded. That was a determination which was equally
open to the Board on the evidence before it and I can take no issue with
it.58
In a similar case, decided on the same date, he
stated:
The argument is that it was irrelevant for the Board
to examine the applicant's motives in acting as she did. In the view which
I and other members of this Court have previously expressed, it is not
irrelevant. The matter of motive goes to the genuineness or otherwise
of the applicant's expressed subjective fear of persecution. That said,
however, there is and must always be an intimate interplay between the
subjective and objective elements of the fear of persecution which is
central to the definition of convention refugee and, I have previously
expressed the view that it would be an error for a Board to rely exclusively
on its view that a claimant did not have a subjective fear of persecution
without also examining the objective basis for that fear. The Board in
this case, however, did not commit an error of that sort.59
- Abou El Joud, Mohamad Ali v.
M.E.I.
(F.C.A.,
no. A-21-93), Nadon, January 19,
1994
- Adjei v. Canada (Minister
of Employment and Immigration), [1989] 2 F.C.
680 (C.A.)
- Ahani, Roozbeh v. M.C.I.
(F.C.T.D.,
no. IMM-4985-93), MacKay,
January 4, 1995
- Ali, Salah Mohamed v. M.C.I.
(F.C.T.D.,
no. IMM-2402-95), Tremblay-Lamer,
April 25, 1996
- Al-Kahtani, Naser Shafi Mohammad v.
M.C.I.
(F.C.T.D.,
no. IMM-2879-94), MacKay,
March 13, 1996
- Amaniampong, Kofi v. M.E.I.
(F.C.A.,
no. A-1326-87), Heald (dissenting),
Mahoney, Hugessen, May 19, 1989
- Anandasivam, Vallipuram v.
M.C.I.
(F.C.T.D.,
IMM-4748-00), Lemieux, October 10, 2001
- Araya, Carolina Isabel Valenzuela v.
M.C.I.
(F.C.T.D.,
no. IMM-3948-97), Gibson,
September 4, 1998
- Asfaw, Napoleon v. M.C.I.
(F.C.T.D.,
no. IMM-5552-99), Hugessen,
July 18, 2000
- Bains, Gurmukh Singh v.
M.C.I.
(F.C.T.D.,
no. IMM-3698-98), Blais,
April 21, 1999
- Bello, Salihou v. M.C.I.
(F.C.T.D.,
no. IMM-1771-96), Pinard,
April 11, 1997
- Beltran, Luis Fernando Berrio v.
M.C.I.
(F.C.T.D.,
no. IMM-829-96), Dubé,
October 29, 1996
- Bogus, Mehmet v. M.E.I.
(F.C.T.D.,
no. T-153-93), Rothstein,
November 26, 1993
- Butt, Abdul Majid (Majeed) v.
S.G.C. (F.C.T.D.,
no. IMM-1224-93), Rouleau,
September 8, 1993
- Caballero, Fausto Ramon Reyes v.
M.E.I.
(F.C.A.,
no. A-266-91), Marceau (dissenting),
Desjardins, Létourneau, May 13, 1993
- Castillejos, Jaoquin Torres v.
M.C.I.
(F.C.T.D.,
no. IMM-1950-94), Cullen,
December 20, 1994
- Chan v. Canada (Minister
of Employment and Immigration) [1995] 3 S.C.R.
593
- Chichmanov, Yordan Anguelov v.
M.E.I.
(F.C.A.,
no. A-243-91), Isaac, Heald,
Létourneau, September 3, 1992
- Chudinov, Nickolai v. M.C.I.
(F.C.T.D.
no. IMM-2419-97), Joyal,
August 14, 1998
- Cortez, Luis Reinaldo Cepeda v.
M.E.I.
(F.C.T.D.,
no. A-39-93), Noël,
September 3, 1993
- Dcruze, Jacob Ranjit v.
M.C.I.
(F.C.T.D.,
no. IMM-2910-98), Rouleau,
June 17, 1999
- De Beltran, Delia Mayen v.
S.S.C.
(F.C.T.D.,
no. IMM-3851-93), MacKay,
September 6, 1994. Reported: De Beltran v.
Canada (Secretary of State) (1994), 28 Imm.
L.R. (2d) 157 (F.C.T.D.)
- 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.)
- Dirie, Abdulle Milgo v.
M.C.I.
(F.C.T.D.,
no. IMM-5428-97), Cullen,
October 6, 1998
- El-Naem, Faisal v. M.C.I.,
(F.C.T.D.
IMM-1723-96), Gibson, February 17, 1997. Reported: El-Naem v.
Canada (Minister of Citizenship and Immigration) (1997), 37 Imm.
L.R. (2d) 304 (F.C.T.D.)
- Ezi-Ashi, Jame Chike v.
S.S.C.
(F.C.T.D.,
no. IMM-1257-93), Wetston,
February 28, 1994
- Farahmandpour, Tahereh v.
M.C.I.
(F.C.T.D.,
no. IMM-92-97), Dubé,
December 15, 1998
- Fernando v. M.C.I.
(F.C.T.D.,
IMM- 4601-00), Nadon, July 5, 2001
- Flores, Flor de Maria (Flor Maria) Herrera v.
M.E.I.
(F.C.T.D.,
no. IMM-2591-93), Gibson,
April 22, 1994
- Gabeyehu, Bruck v. M.C.I.
(F.C.T.D.,
no. IMM-863-95), Reed, November 8,
1995
- Galdamez, Santo Peraza v.
M.E.I.
(F.C.T.D.,
no. IMM-1544-94), McKeown,
December 9, 1994
- Geron, Fernando Bilos v.
M.C.I.(F.C.T.D.,
no. IMM-4951-01, Blanchard,
November 22, 2002; 2002 FCT 1204
- Giron, Luis Fernando Soto y v.
M.E.I.
(F.C.A.,
no. A-387-89), Mahoney, MacGuigan,
Linden, May 28, 1992. Reported: Giron v.
Canada (Minister of Employment and Immigration) (1992), 143 N.R.
238 (F.C.A.)
- Guzman, Jesus Ruby Hernandez v.
M.C.I.
(F.C.T.D.,
no. IMM-3748-97), Rothstein,
October 29, 1998
- Hankali, Levent v. M.C.I.
(F.C.T.D.,
no. IMM-2575-94), MacKay,
March 14, 1996
- Hanna, Nwora Kiriakos v.
M.E.I.
(F.C.T.D.,
no. IMM-220-93), Cullen,
February 3, 1994
- Hatami, Arezo v. M.C.I.
(F.C.T.D.,
no. IMM-2418-98), Lemieux,
March 23, 2000
- Heer, Karnail Singh v. M.E.I.
(F.C.A.,
no. A-474-87), Heald, Marceau,
Lacombe, April 13, 1988
- Herrera, Juan Blas Perez de Corcho v.
M.E.I.
(F.C.T.D.,
no. A-615-92), Noël,
October 19, 1993
- Hoballah, Hassane v. M.E.I.
(F.C.T.D.,
no. IMM-3670-93), Joyal,
January 10, 1995
- Hristov, Hristo v. M.E.I.
(F.C.T.D.,
no. IMM-2090-94), Cullen,
January 5, 1995. Reported: Hristov v.
Canada (Minister of Employment and Immigration) (1994), 23 Imm.
L.R. (2d) 278 (F.C.T.D.)
- Hue, Marcel Simon Chang Tak v.
M.E.I.
(F.C.A.,
no. A-196-87), Marceau, Teitelbaum,
Walsh, March 8, 1988
- Huerta, Martha Laura Sanchez v.
M.E.I.
(F.C.A.,
no. A-448-91), Hugessen,
Desjardins, Létourneau, March 17, 1993. Reported: Huerta
v. Canada (Minister of Employment
and Immigration) (1993), 157 N.R.
225 (F.C.A.)
- Hurt v. Canada (Minister
of Manpower and Immigration), [1978] 2 F.C.
340 (C.A.)
- Iazlovitskaia, Alla v. M.E.I.
(F.C.T.D.,
no. A-70-93), Gibson, November 25,
1993
- Ilie, Lucian Ioan v. M.C.I.
(F.C.T.D.,
no. IMM-462-94), MacKay,
November 22, 1994
- Ioda, Routa v. M.E.I.
(F.C.T.D.,
no. 92-A-6604), Dubé,
June 18, 1993. Reported: Ioda v.
Canada (Minister of Employment and Immigration) (1993), 21 Imm.
L.R. (2d) 294 (F.C.T.D.)
- Iossifov, Svetoslav Gueorguiev v.
M.E.I.
(F.C.T.D.,
no. A-854-92), McKeown, December 8,
1993
- Jbel, Bouazza v. M.E.I.
(F.C.T.D.,
no. A-1058-92), Gibson, September 10,
1993
- Kanji, Mumtaz Badurali v.
M.C.I.
(F.C.T.D.,
no. IMM-2451-96), Campbell,
April 4, 1997
- Kassa, Daniel Mikael v.
M.E.I. (F.C.A.,
no. A-852-88), Heald, Mahoney,
Desjardins, September 6, 1989. Reported: Kassa v.
Canada (Minister of Employment and Immigration) (1989), 9 Imm.
L.R. (2d) 1 (F.C.A.)
- Katalayi, Tshibola v. M.C.I.
(F.C.T.D.,
no. IMM-179-97), Wetston,
October 31, 1997
- Kwiatkowsky v. Canada (Minister
of Employment and Immigration), [1982] 2 S.C.R.
856
- Lai, Kai Ming v. M.E.I.
(F.C.A.,
no. A-792-88), Marceau, Stone,
Desjardins, September 18, 1989. Reported: Lai v.
Canada (Minister of Employment and Immigration) (1989), 8 Imm.
L.R. (2d) 245 (F.C.A.)
- Lameen, Ibrahim v. S.S.C.
(F.C.T.D.,
no. A-1626-92), Cullen, June 7,
1994
- Larue, Jacqueline Anne v.
M.E.I.
(F.C.T.D.,
no. 92-A-6666), Noël,
May 13, 1993
- Leon, Hoimer Duban Sierra v.
M.C.I.
(F.C.T.D.,
no. IMM-3650-97), Muldoon,
October 23, 1998
- Liblizadeh, Hassan v. M.C.I.
(F.C.T.D.,
no. IMM-5062-97), MacKay,
July 8, 1998
- Lin, Mei Qin v. M.C.I.
(F.C.T.D.,
no. IMM-1156-97), Joyal,
February 26, 1998
- Liu, Ying Yang v. M.C.I.
(F.C.T.D.,
no. IMM-4316-94), Reed, May 16,
1995
- Longia v. Canada (Minister
of Employment and Immigration), [1990] 3 F.C.
288 (C.A.)
- Madoui, Nidhal Abderrah v.
M.C.I.
(F.C.T.D.,
no. IMM-660-96), Denault,
October 25, 1996
- Maldonado v. Canada (Minister
of Employment and Immigration), [1980] 2 F.C.
302 (C.A.)
- Maqdassy, Joyce Ruthv. M.C.I.
(F.C.T.D.,
no. IMM-2992-00), Tremblay-Lamer,
February 19, 2002; 2002 FCT 182
- Marquez, Ricardo v. M.E.I.
(F.C.T.D.,
no. IMM-3166-93), Simpson,
June 1, 1994
- Maximilok, Yuri v. M.C.I.
(F.C.T.D.,
no. IMM-1861-97), Joyal,
August 14, 1998
- Mejia, Maria Esperanza Martinez v.
M.C.I.
(F.C.T.D.,
no. IMM-1040-95), Simpson,
February 22, 1996 (reasons signed July 29, 1996)
- Mekideche, Anouar v. M.C.I.
(F.C.T.D.,
no. IMM-2269-96), Wetston,
December 9, 1996
- Memarpour, Mahdi v. M.C.I.
(F.C.T.D.,
no. IMM-3113-94), Simpson,
May 25, 1995
- Mileva v. Canada (Minister
of Employment and Immigration), [1991] 3 F.C.
398 (C.A.)
- Mokabila, Guy Lessendjina v.
M.C.I.
(F.C.T.D.,
no. IMM-2660-98), Denault,
June 2, 1999
- Mvudi, Ndondi v. M.C.I.
(F.C.T.D.,
no. IMM-3168-98), Teitelbaum,
May 5, 1999
- Naredo, Fernando Arduengo v.
M.E.I.
(F.C.T.D.,
no. T-1985-89), Muldoon,
July 24, 1990. Reported: Naredo v.
Canada (Minister of Employment and Immigration) (1990), 11 Imm.
L.R. (2d) 92 (F.C.T.D.)
- Nguyen, Mai Huong v. M.C.I.
(F.C.T.D.,
no. IMM-2196-97), Rothstein,
April 2, 1998
- Orelien v. Canada (Minister
of Employment and Immigration), [1992] 1 F.C.
592 (C.A.)
- Oyarzo v. Canada (Minister
of Employment and Immigration), [1982] 2 F.C.
779 (C.A.)
- Papsouev, Vitali v. M.C.I.
(F.C.T.D.,
no. IMM-4619-97), Rouleau,
May 19, 1999
- Parada, Felix Balmore v.
M.C.I.
(F.C.T.D.,
no. A-938-92), Cullen, March 6,
1995
- Parmar, Satnam Singh v.
M.C.I.
(F.C.T.D.,
no. IMM-838-97), Joyal, January
21, 1998
- Paszkowska: M.E.I.
v. Paszkowska, Malgorzata
(F.C.A.,
no. A-724-90), Hugessen,
MacGuigan, Décary, April 16, 1991. Reported: Canada
(Minister of Employment and Immigration) v.
Paszkowska (1991), 13 Imm.
L.R. (2d) 262 (F.C.A.)
- Petrescu, Mihai v. S.G.C.
(F.C.T.D.,
no. A-980-92), Tremblay-Lamer,
October 26, 1993
- Ponniah, Manoharan v. M.E.I.
(F.C.A.,
no. A-345-89), Heald, Hugessen,
Desjardins, May 16, 1991. Reported: Ponniah v.
Canada (Minister of Employment and Immigration) (1991), 13 Imm.
L.R. (2d) 241 (F.C.A.)
- Radulescu, Petrisor v. M.E.I.
(F.C.T.D.,
no. 92-A-7164), McKeown,
June 16, 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.)
- 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.)
- Rosales, Carlos Guillermo Cabrera v.
M.E.I.
(F.C.T.D.,
no. A-750-92), Rothstein,
November 26, 1993. Reported: Rosales v.
Canada (Minister of Employment and Immigration) (1993), 23 Imm.
L.R. (2d) 100 (F.C.T.D.)
- Sabaratnam, Thavakaran v.
M.E.I.
(F.C.A.,
no. A-536-90), Mahoney, Stone,
Robertson, October 2, 1992
- Saez, Maritza Elizabeth Lagos v.
M.E.I.
(F.C.T.D.,
no. IMM-92-A-6908), Dubé,
June 23, 1993
- Safakhoo, Masoud v. M.C.I.
(F.C.T.D.,
no. IMM-455-96), Pinard,
April 11, 1997
- Salibian v. Canada (Minister
of Employment and Immigration), [1990] 3 F.C.
250 (C.A.)
- Satiacum: M.E.I.
v. Satiacum, Robert (F.C.A.,
no. A-554-87), Urie, Mahoney,
MacGuigan, June 16, 1989. Reported: Canada (Minister of
Employment and Immigration) v.
Satiacum (1989), 99 N.R.
171 (F.C.A.)
- Seevaratnam, Sukunamari v.
M.C.I.
(F.C.T.D.,
no. IMM-3728-98), Tremblay-Lamer,
May 11, 1999
- Seifu, Eshetu v. M.E.I.
(F.C.A.,
no. A-277-82), Pratte, Le
Dain, Hyde, January 12, 1983
- Shahpari, Khadijeh v. M.C.I.
(F.C.T.D.,
no. IMM-2327-97), Rothstein,
April 3, 1998
- Shanmugarajah, Appiah v.
M.E.I.
(F.C.A.,
no. A-609-91), Stone, MacGuigan,
Henry, June 22, 1992
- Singh, Sebastian Swatandra v.
M.C.I.
(F.C.T.D.,
no. IMM-3840-97), Nadon,
December 7, 1998
- Skretyuk, Stefan et al. v.
M.C.I.
(F.C.T.D.
no. IMM-3240-97), Dubé,
June 4, 1998
- Sokolov, Georgy Viktorov v.
M.C.I.
(F.C.T.D.,
no. IMM-3853-97), Blais,
September 16, 1998
- Tabet-Zatla v. M.C.I.
(F.C.T.D.,
IMM-6291-98), Tremblay-Lamer, November 2, 1999
- Tang, Xiaoming v. M.C.I.
(F.C.T.D.,
no. IMM-3650-99), Reed, June
21, 2000
- Tao, Zhen v. M.E.I.
(F.C.T.D.,
no. 92-A-7039), Noël,
June 22, 1993
- Tejani, Abdulkarim v. M.E.I.
(F.C.T.D.,
no. 92-T- 1306), Reed, June 2,
1993
- Thandi, Ajaib Singh v. S.S.C.
(F.C.T.D.,
no. IMM-4547-93), Nadon,
May 27, 1994
- Thomas, Arthurine Deniz v.
M.C.I.
(F.C.T.D.,
no. IMM-4899-96), McGillis,
February 19, 1998
- Tung, Zhang Shu v. M.E.I.
(F.C.A.,
no. A-220-90), Heald, Stone,
Linden, March 21, 1991. Reported: Tung v.
Canada (Minister of Employment and Immigration) (1991), 124 N.R.
388 (F.C.A.)
- Voyvodov, Bogdan Atanassov v.
M.C.I.
(F.C.T.D.,
no. IMM-5601-98), Lutfy,
September 13, 1999
- Ward: Canada (Attorney General) v.
Ward, [1993] 2 S.C.R.
689, 103 D.L.R. (4th) 1, 20 Imm.
L.R. (2d) 85
- Wey, Edward Kolawole v.
S.S.C.
(F.C.T.D.,
no. IMM-2758-94), Gibson,
February 21, 1995
- Williams, Debby v. S.S.C.
(F.C.T.D.,
no. IMM-4244-94), Reed, June 30,
1995
- Wong, Siu Ying v. M.E.I.
(F.C.A.,
no. A-804-90), Heald, Marceau,
Linden, April 8, 1992. Reported: Wong v.
Canada (Minister of Employment and Immigration) (1992), 141 N.R.
236 (F.C.A.)
- Yang, Sui v. M.C.I.
(F.C.T.D.,
no. IMM-673-96), Heald, November
21, 1996
- Yeboah, Christian v. M.E.I.
(F.C.T.D.,
no. 92-A-7049), Teitelbaum,
July 16, 1993. Reported: Yeboah v.
Canada (Minister of Employment and Immigration) (1993), 21 Imm.
L.R. (2d) 81 (F.C.T.D.)
- Yoganathan, Kandasamy v. M.C.I.
(F.C.T.D.,
no. IMM-3588-97), Gibson,
April 20, 1998
- Yusuf v. Canada (Minister
of Employment and Immigration), [1992] 1 F.C.
629 (C.A.)
- Zergani, Ahmad Jassemi v.
M.E.I.
(F.C.A.,
no. A-311-92), Heald, Stone,
McDonald, April 12, 1994
- Zewedu, Haimanot v. M.C.I.
(F.C.T.D.,
no. IMM-5564-99), Hugessen,
July 18, 2000
- Zuniga, Alexis Ramon Garcia v.
S.C.C., (F.C.T.D.,
no. IMM-118-94), Teitelbaum,
July 4, 1994
- Longia v.
Canada (Minister of Employment and Immigration), [1990] 3 F.C.
288 (C.A.); Mileva
v. Canada (Minister of Employment
and Immigration), [1991] 3 F.C.
398 (C.A.); M.E.I.
v. Paszkowska, Malgorzata
(F.C.A.,
no. A-724-90), Hugessen,
MacGuigan, Décary, April 16, 1991. Reported: Canada
(Minister of Employment and Immigration) v.
Paszkowska (1991), 13 Imm.
L.R. (2d) 262 (F.C.A.).
- Naredo, Fernando Arduengo v.
M.E.I.
(F.C.T.D.,
no. T-1985-89), Muldoon,
July 24, 1990. Reported: Naredo v.
Canada (Minister of Employment and Immigration) (1990), 11 Imm.
L.R. (2d) 92 (F.C.T.D.).
- Lai, Kai Ming v.
M.E.I.
(F.C.A.,
no. A-792-88), Marceau,
Stone, Desjardins, September 18, 1989. Reported: Lai v.
Canada (Minister of Employment and Immigration) (1989), 8 Imm.
L.R. (2d) 245 (F.C.A.).
- Salibian v.
Canada (Minister of Employment and Immigration), [1990] 3 F.C.
250 (C.A.), at
258. See also Iazlovitskaia, Alla v.
M.E.I.
(F.C.T.D.,
no. A-70-93), Gibson, November 25,
1993, at 3. In Mokabila, Guy Lessendjina v.
M.C.I.
(F.C.T.D.,
no. IMM-2660-98), Denault,
June 2, 1999, the Court held that to require a claimant to prove that
he would himself be persecuted in the future constituted an error of
law. However, where section 2(3) of the Immigration Act may
apply, it is necessary for the CRDD
to determine whether the claimant was persecuted in the past: Iossifov,
Svetoslav Gueorguiev v. M.E.I.
(F.C.T.D.,
no. A-854-92), McKeown, December 8,
1993, at 2. See also Chapter 7, section 7.2.
- Oyarzo v.
Canada (Minister of Employment and Immigration), [1982] 2 F.C.
779 (C.A.).See
also 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.).
- Butt, Abdul Majid (Majeed) v.
S.G.C. (F.C.T.D.,
no. IMM-1224-93), Rouleau,
September 8, 1993.
- Canada (Attorney General) v.
Ward, [1993] 2 S.C.R.
689, 103 D.L.R. (4th) 1, 20 Imm.
L.R. (2d) 85, at 712. For a fuller discussion of state protection,
see Chapter 6.
- Seifu, Eshetu v.
M.E.I.
(F.C.A.,
no. A-277-82), Pratte, Le
Dain, Hyde, January 12, 1983.
- Adjei v.
Canada (Minister of Employment and Immigration), [1989] 2 F.C.
680 (C.A.), at
683. See also M.E.I.
v. Satiacum, Robert (F.C.A.,
no. A-554-87), Urie, Mahoney,
MacGuigan, June 16, 1989. Reported: Canada (Minister of
Employment and Immigration) v.
Satiacum (1989), 99 N.R.
171 (F.C.A.).
- Ponniah, Manoharan v.
M.E.I.
(F.C.A.,
no. A-345-89), Heald, Hugessen,
Desjardins, May 16, 1991. Reported: Ponniah v.
Canada (Minister of Employment and Immigration) (1991), 13 Imm.
L.R. (2d) 241 (F.C.A.),
at 245. See also Ioda, Routa v.
M.E.I.
(F.C.T.D.,
no. 92-A-6604), Dubé,
June 18, 1993. Reported: Ioda v.
Canada (Minister of Employment and Immigration) (1993), 21 Imm.
L.R. (2d) 294 (F.C.T.D.),
where the court held that the Refugee Division used an improper statement
of the test in Adjei, supra, footnote 9, when it determined
that there was only a "mere risk" that the claimant might be a victim
of persecution.
- Chichmanov, Yordan Anguelov v.
M.E.I.
(F.C.A.,
no. A-243-91), Isaac, Heald,
Létourneau, September 3, 1992, at 2; Yeboah, Christian
v. M.E.I.
(F.C.T.D.,
no. 92-A-7049), Teitelbaum,
July 16, 1993. Reported: Yeboah v.
Canada (Minister of Employment and Immigration) (1993), 21 Imm.
L.R. (2d) 81 (F.C.T.D.),
at 91; Petrescu, Mihai v.
S.G.C. (F.C.T.D.,
no. A-980-92), Tremblay-Lamer,
October 26, 1993, at 5. See also Cortez, Luis Reinaldo Cepeda
v. M.E.I.
(F.C.T.D.,
no. A-39-93), Noël,
September 3, 1993, at 2; and Flores, Flor de Maria (Flor Maria)
Herrera v. M.E.I.
(F.C.T.D.,
no. IMM-2591-93), Gibson,
April 22, 1994. See however Mvudi, Ndondi v.
M.C.I.
(F.C.T.D.,
no. IMM-3168-98), Teitelbaum,
May 5, 1999, where the Court stated that in saying that it was "unlikely"
the claimant would be a target for persecution, the panel in fact found
there was no serious possibility of persecution, and did not use an
excessive burden of proof.
- 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.),
at 134. See also Adjei, supra, footnote 9; Amaniampong,
Kofi v. M.E.I.
(F.C.A.,
no. A-1326-87), Heald (dissenting),
Mahoney, Hugessen, May 19, 1989; Kassa, Daniel Mikael v.
M.E.I. (F.C.A.,
no. A-852-88), Heald, Mahoney,
Desjardins, September 6, 1989. Reported: Kassa v.
Canada (Minister of Employment and Immigration) (1989), 9 Imm.
L.R. (2d) 1 (F.C.A.);
and Ward, supra, footnote 7. Rajudeen was followed
in Parmar, Satnam Singh v.
M.C.I.
(F.C.T.D.,
no. IMM-838-97), Joyal, January
21, 1998; Lin, Mei Qin v. M.C.I.
(F.C.T.D.,
no. IMM-1156-97), Joyal,
February 26, 1998; Chudinov, Nickolai v.
M.C.I.
(F.C.T.D.
no. IMM-2419-97), Joyal,
August 14, 1998; and Maximilok, Yuri v.
M.C.I.
(F.C.T.D.,
no. IMM-1861-97), Joyal,
August 14, 1998, in which case the Court stated that the subjective
basis for a fear of persecution depended solely on the claimants' credibility.
- Kwiatkowsky v.
Canada (Minister of Employment and Immigration), [1982] 2 S.C.R.
856, at 862. See also Tung, Zhang Shu v.
M.E.I.
(F.C.A.,
no. A-220-90), Heald, Stone,
Linden, March 21, 1991. Reported: Tung v.
Canada (Minister of Employment and Immigration) (1991), 124 N.R.
388 (F.C.A.).
In Chan v. Canada (Minister
of Employment and Immigration) [1995] 3 S.C.R.
593, at 664 (paragraph 134), Major, J. stated: "The objective component
of the test requires an examination of the 'objective situation' and
the relevant factors include the conditions in the applicant's country
of origin and the laws in that country together with the manner in
which they are applied
".
- Kamana, Jimmy v.
M.C.I.
(F.C.T.D.,
IMM-5998-98), Tremblay-Lamer, September 24, 1999.
- Kamana, ibid., was followed in Tabet-Zatla
v. M.C.I.
(F.C.T.D.,
IMM-6291-98), Tremblay-Lamer, November 2, 1999; Fernando v.
M.C.I.
(F.C.T.D.,
IMM- 4601-00), Nadon, July 5, 2001 and Anandasivam, Vallipuram v.
M.C.I.
(F.C.T.D.,
IMM-4748-00), Lemieux, October 10, 2001.
- Yusuf v.
Canada (Minister of Employment and Immigration), [1992] 1 F.C.
629 (C.A.), at
632. See also Shanmugarajah, Appiah v.
M.E.I.
(F.C.A.,
no. A-609-91), Stone, MacGuigan,
Henry, June 22, 1992.Yusuf was followed in Dirie,
Abdulle Milgo v. M.C.I.
(F.C.T.D.,
no. IMM-5428-97), Cullen,
October 6, 1998.
- Maqdassy, Joyce Ruthv. M.C.I.
(F.C.T.D.,
no. IMM-2992-00), Tremblay-Lamer,
February 19, 2002; 2002 FCT 182.
- Canada (Attorney General) v.
Ward, supra, footnote 7
- Geron, Fernando Bilos v.
M.C.I.(F.C.T.D.,
no. IMM-4951-01, Blanchard,
November 22, 2002; 2002 FCT 1204.
- Rosales, Carlos Guillermo Cabrera v.
M.E.I.
(F.C.T.D.,
no. A-750-92), Rothstein,
November 26, 1993. Reported: Rosales v.
Canada (Minister of Employment and Immigration) (1993), 23 Imm.
L.R. (2d) 100 (F.C.T.D.),
at 105. The Court approved the withdrawal of Minister's counsel's submission
that because of the applicant's mental condition (post-traumatic stress
disorder) he was unable to form a subjective fear at the time of the
hearing and thus could not bring himself within the definition of a
Convention refugee.
- Amaniampong, supra, footnote
12
- Amaniampong, supra, footnote
12, at 2. See also Liu, Ying Yang v.
M.C.I.
(F.C.T.D.,
no. IMM-4316-94), Reed,
May 16, 1995, where the Court found, at 3, that it was not appropriate
"to quash the CRDD's
decision in the light of [its] findings concerning the lack of evidence
of subjective fear on the part of the female [claimant]."
- Parada, Felix Balmore v.
M.C.I.
(F.C.T.D.,
no. A-938-92), Cullen, March 6,
1995. Similarly, in Hatami, Arezo v.
M.C.I.
(F.C.T.D.,
no. IMM-2418-98), Lemieux,
March 23, 2000, the Court held that the Board had no evidentiary basis
on which to conclude that the claimant did not have a genuine subjective
fear of persecution when her subjective fear was clearly established
in her PIF
and the Board had found her evidence credible.
- Seevaratnam, Sukunamari v.
M.C.I.
(F.C.T.D.,
no. IMM-3728-98), Tremblay-Lamer,
May 11, 1999, which refers to Katalayi, Tshibola v.
M.C.I.
(F.C.T.D.,
no. IMM-179-97), Wetston,
October 31, 1997.
- Heer, Karnail Singh v.
M.E.I.
(F.C.A.,
no. A-474-87), Heald, Marceau,
Lacombe, April 13, 1988; Huerta, Martha Laura Sanchez v.
M.E.I.
(F.C.A.,
no. A-448-91), Hugessen,
Desjardins, Létourneau, March 17, 1993. Reported: Huerta
v. Canada (Minister of Employment
and Immigration) (1993), 157 N.R.
225 (F.C.A.),
at 226-227. Heer was followed in Yang, Sui v.
M.C.I.
(F.C.T.D.,
no. IMM-673-96), Heald, November
21, 1996.
- Huerta, ibid., at 227.
- Castillejos, Jaoquin Torres v.
M.C.I.
(F.C.T.D.,
no. IMM-1950-94), Cullen,
December 20, 1994, where the Court stated, at 4, that delay points
to a lack of subjective fear and does not relate to the objective basis
of the claim.
- Tung, supra, footnote 13, at
394:The Board erred in ignoring that the Chinese claimant, who was at
all times in transit, provided reasons for selecting Canada as a safe
haven over other countries he had considered with the assistance of
his agent. In Ahani, Roozbeh v.
M.C.I.
(F.C.T.D.,
no. IMM-4985-93), MacKay,
January 4, 1995, the CRDD's
conclusion that the claimant lacked a subjective fear for not having
made a claim during the eight or nine days he travelled from Iran to
Canada was found to be unreasonable. He had to travel through three
countries after having made arrangements with a smuggler for travel
to Canada. In Williams, Debby v.
S.S.C.
(F.C.T.D.,
no. IMM-4244-94), Reed, June 30,
1995, the claimant did not know she was entitled to claim refugee status
on the ground of spousal abuse.
- 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 162.
- Beltran, Luis Fernando Berrio v.
M.C.I.
(F.C.T.D.,
no. IMM-829-96), Dubé,
October 29, 1996.
- Mejia, Maria Esperanza Martinez v.
M.C.I.
(F.C.T.D.,
no. IMM-1040-95), Simpson,
February 2, 1996 (reasons signed July 29, 1996)
- El-Naem, Faisal v.
M.C.I.,
(F.C.T.D.
IMM-1723-96), Gibson, February 17, 1997. Reported: El-Naem v.
Canada (Minister of Citizenship and Immigration) (1997), 37 Imm.
L.R. (2d) 304 (F.C.T.D.)
- Farahmandpour, Tahereh v.
M.C.I.
(F.C.T.D.,
no. IMM-92-97), Dubé,
December 15, 1998.
- Papsouev, Vitali v.
M.C.I.
(F.C.T.D.,
no. IMM-4619-97), Rouleau,
May 19, 1999.
- Gabeyehu, Bruck v.
M.C.I.
(F.C.T.D.,
no. IMM-863-95), Reed, November 8,
1995, at 3.
- Tang, Xiaoming v.
M.C.I.
(F.C.T.D.,
no. IMM-3650-99), Reed, June
21, 2000.
- Yoganathan, Kandasamy v. M.C.I.
(F.C.T.D.,
no. IMM-3588-97), Gibson,
April 20, 1998.
- Hue, Marcel Simon Chang Tak v.
M.E.I.
(F.C.A.,
no. A-196-87), Marceau, Teitelbaum,
Walsh, March 8, 1988,
- Liblizadeh, Hassan v.
M.C.I.
(F.C.T.D.,
no. IMM-5062-97), MacKay,
July 8, 1998.
- Dcruze, Jacob Ranjit v.
M.C.I.
(F.C.T.D.,
no. IMM-2910-98), Rouleau,
June 17, 1999.
- Huerta, supra, footnote 25,
(claimant continued to work and attend classes); Radulescu, Petrisor
v. M.E.I.
(F.C.T.D.,
no. 92-A-7164), McKeown,
June 16, 1993 (2-year delay in leaving Romania after police beatings
and telephone threats); Rosales, supra, footnote 20,
(9-month delay in leaving despite the disappearance of a political colleague);
De Beltran, Delia Mayen v.
S.S.C.
(F.C.T.D.,
no. IMM-3851-93), MacKay,
September 6, 1994. Reported: De Beltran v.
Canada (Secretary of State) (1994), 28 Imm.
L.R. (2d) 157 (F.C.T.D.)
(5-month delay in leaving El Salvador after receiving a threat); Hristov,
Hristo v. M.E.I.
(F.C.T.D.,
no. IMM-2090-94), Cullen,
January 5, 1995. Reported: Hristov v.
Canada (Minister of Employment and Immigration) (1994), 23 Imm.
L.R. (2d) 278 (F.C.T.D.).(delay
in leaving Bulgaria in face of physical attacks, home break-ins and
fire-bombing of car). But see Ezi-Ashi, Jame Chike v.
S.S.C.
(F.C.T.D.,
no. IMM-1257-93), Wetston,
February 28, 1994 and Zuniga, Alexis Ramon Garcia v.
S.C.C., (F.C.T.D.,
no. IMM-118-94), Teitelbaum,
July 4, 1994. In Ali, Salah Mohamed v.
M.C.I.
(F.C.T.D.,
no. IMM-2402-95), Tremblay-Lamer,
April 25, 1996, the Court upheld the negative decision of the CRDD,
which had found that the principal claimant's delay in making a claim
in the U.S.A. (where he had spent close to three years) was inconsistent
with a person claiming to fear persecution. See also Singh, Sebastian
Swatandra v. M.C.I.
(F.C.T.D.,
no. IMM-3840-97), Nadon,
December 7, 1998 where the Court upheld the negative finding of the
CRDD
based on the view that the male claimant had not made a serious attempt
to leave Fiji between 1987 and 1995, which undermined his subjective
fear of persecution; and Parmar, supra, footnote 12,
where the Court upheld the negative CRDD
finding based on the claimant's delayed departure from India.
- Voyvodov, Bogdan Atanassov v.
M.C.I.
(F.C.T.D.,
no. IMM-5601-98), Lutfy,
September 13, 1999.
- Ibid., paragraph 10.
- Tao, Zhen v.
M.E.I.
(F.C.T.D.,
no. 92-A-7039), Noël,
June 22, 1993.See, however, Wong, Siu Ying v.
M.E.I.
(F.C.A.,
no. A-804-90), Heald, Marceau,
Linden, April 8, 1992. Reported: Wong v.
Canada (Minister of Employment and Immigration) (1992), 141 N.R.
236 (F.C.A.);
Giron, Luis Fernando Soto y v.
M.E.I.
(F.C.A.,
no. A-387-89), Mahoney, MacGuigan,
Linden, May 28, 1992. Reported: Giron v.
Canada (Minister of Employment and Immigration) (1992), 143 N.R.
238 (F.C.A.);
Sabaratnam, Thavakaran v.
M.E.I.
(F.C.A.,
no. A-536-90), Mahoney, Stone,
Robertson, October 2, 1992 (a person "successfully in hiding from
his persecutor can scarcely be said to be experiencing no problems");
Tung, supra, footnote 13, at 393.
- Saez, Maritza Elizabeth Lagos v.
M.E.I.
(F.C.T.D.,
no. 92-A-6908), Dubé,
June 23, 1993, at 2 (transit country and country where claimant
sojourned); Mekideche, Anouar v.
M.C.I.
(F.C.T.D.,
no. IMM-2269-96), Wetston,
December 9, 1996 (transit country); Thandi, Ajaib Singh v.
S.S.C.
(F.C.T.D.,
no. IMM-4547-93), Nadon,
May 27, 1994; Bogus, Mehmet v.
M.E.I.
(F.C.T.D.,
no. T-153-93), Rothstein,
November 26, 1993, at 3 (country of residence); Lameen, Ibrahim
v. S.S.C.
(F.C.T.D.,
no. A-1626-92), Cullen, June 7,
1994; Ilie, Lucian Ioan v.
M.C.I.
(F.C.T.D.,
no. IMM-462-94), MacKay,
November 22, 1994 (transit countries); Wey, Edward Kolawole
v. S.S.C.
(F.C.T.D.,
no. IMM-2758-94), Gibson,
February 21, 1995 (countries of residence); Memarpour, Mahdi
v. M.C.I.
(F.C.T.D.,
no. IMM-3113-94), Simpson,
May 25, 1995; and Hankali, Levent v.
M.C.I.
(F.C.T.D.,
no. IMM-2575-94), MacKay,
March 14, 1996.
See also Safakhoo, Masoud v.
M.C.I.
(F.C.T.D.,
no. IMM-455-96), Pinard,
April 11, 1997, where an Iranian claimant had resided 5 years in France
without asking for protection; and Bello, Salihou v.
M.C.I.
(F.C.T.D.,
no. IMM-1771-96), Pinard,
April 11, 1997, where in the case of a claimant who had returned to
Cameroun on two occasions and had failed to claim refugee status in
the 7½ years preceding his claim in Canada, the Court found
it was not unreasonable for the CRDD
to find that the claimant's actions were not consistent with those
of a person with a subjective fear of persecution, and to make the
further finding that the claimant's evidence was not credible; Madoui,
Nidhal Abderrah v. M.C.I.
(F.C.T.D.,
no. IMM-660-96), Denault,
October 25, 1996, where the panel found a lack of subjective fear
of persecution because the claimant had never claimed refugee status
while he had been in Italy for 19 months and in the United States
for 20 days.
See also Nguyen, Mai Huong v.
M.C.I.
(F.C.T.D.,
no. IMM-2196-97), Rothstein,
April 2, 1998, where the Court found the panel made no error in finding
that the claimant had no subjective fear of persecution in Vietnam,
having regard to her long delay in making a refugee claim, because
she had left Vietnam in 1989 for the Soviet Union, stayed there until
1995, went to several countries and eventually came to Canada in April
of 1995. And see Sokolov, Georgy Viktorov v.
M.C.I.
(F.C.T.D.,
no. IMM-3853-97), Blais,
September 16, 1998, where the CRDD
was able to take into account the fact that the claimants had lived
in the Czech Republic without claiming refugee status there; and Guzman,
Jesus Ruby Hernandez v. M.C.I.
(F.C.T.D.,
no. IMM-3748-97), Rothstein,
October 29, 1998, where the panel found, primarily based on the
long delay in making claims (claimants had made no refugee claims
over a three year period in Guatemala, Mexico, or the United States),
that the claimants lacked a subjective fear. And in Skretyuk,
Stefan et al. v. M.C.I.
(F.C.T.D.
no. IMM-3240-97), Dubé,
June 4, 1998, the Court indicated that it was correct of the panel
to have taken into account the behaviour of the applicants in failing
to claim refugee status in two countries before arriving in Canada
("a claimant travelling through a country that is a signatory to the
Convention must claim refugee status as soon as possible, or the claim
may not be considered serious.").
- In Ilie, supra, footnote 45,
at 3, the Court stated that the CRDD
is entitled to take notice of the status of countries that are signatories
to the Convention and may also assume that such countries will meet
their obligation to implement the Convention within their own territory,
unless evidence to the contrary is adduced. But see Tung, supra,
footnote 13, where the claimant visited four countries en route to Canada.
The Court pointed to the lack of evidence that any of the countries
in question had ratified the Convention or Protocol and stated that
although the Board was authorized to take notice of any facts that could
be judicially noticed, it was wrong for the Board to have "speculated"that
refugee protection was available in those countries.
- Tung, supra, footnote 13
- Shahpari, Khadijeh v.
M.C.I.
(F.C.T.D.,
no. IMM-2327-97), Rothstein,
April 3, 1998
- Bains, Gurmukh Singh v.
M.C.I.
(F.C.T.D.,
no. IMM-3698-98), Blais,
April 21, 1999
- Geron v.
Canada (Minister of Citizenship and Immigration), b2002c F.C.J.
no. 1640, Blanchard, November
22, 2002 (Neutral citation 2002 FCT 1204)
- Hurt v.
Canada (Minister of Manpower and Immigration), [1978] 2 F.C.
340 (C.A.), at
342; Huerta, supra, footnote 25 ; Hanna, Nwora
Kiriakos v. M.E.I.
(F.C.T.D.,
no. IMM-220-93), Cullen,
February 3, 1994; Marquez, Ricardo v.
M.E.I.
(F.C.T.D.,
no. IMM-3166-93), Simpson,
June 1, 1994; Lameen ,supra, footnote 45.See also Thomas,
Arthurine Deniz v. M.C.I.
(F.C.T.D.,
no. IMM-4899-96), McGillis,
February 19, 1998 ("the Board was entitled to consider in its assessment
the applicant's lengthy delay in making her claim to refugee status.");
Araya, Carolina Isabel Valenzuela v.
M.C.I.
(F.C.T.D.,
no. IMM-3948-97), Gibson,
September 4, 1998 (the claimants delayed making claims for five months),
and Leon, Hoimer Duban Sierra v.
M.C.I.
(F.C.T.D.,
no. IMM-3650-97), Muldoon,
October 23, 1998 (claimant delayed making his claim to refugee status
for over five years because, he said, he feared deportation by the authorities
since he was an illegal. The Court said: "It is incredible that he would
believe that he could not make a refugee claim because he was an illegal,
that he didn't have a Visa, or whatever. That is incredible. That he
would wait five years in that belief, if the belief were true, is even
more incredible.").
- Williams, Debby v.
S.S.C.
(F.C.T.D.,
no. IMM-4244-94 supra
footnote. See also A.G.I. v.
Canada (Minister of Citizenship and Immigration) b2002c F.C.J.
no. 1760, Kelen, December
11, 2002 (Neutral citation 2002 FCT 1287)
- Caballero, Fausto Ramon Reyes v.
M.E.I.
(F.C.A.,
no. A-266-91), Marceau (dissenting),
Desjardins, Létourneau, May 13, 1993; Larue, Jacqueline
Anne v. M.E.I.
(F.C.T.D.,
no. 92-A-6666), Noël,
May 13, 1993 (part of CRDD's
plausibility assessment); Abou El Joud, Mohamad Ali v.
M.E.I.
(F.C.A.,
no. A-21-93), Nadon, January 19,
1994 ; Bogus, supra, footnote 45 ; Zergani, Ahmad
Jassemi v. M.E.I.
(F.C.A.,
no. A-311-92), Heald, Stone,
McDonald, April 12, 1994; Galdamez, Santo Peraza v.
M.E.I.
(F.C.T.D.,
no. IMM-1544-94), McKeown,
December 9, 1994 (claimant returned to home country after making
refugee claim in Canada); Hoballah, Hassane v.
M.E.I.
(F.C.T.D.,
no. IMM-3670-93), Joyal,
January 10, 1995 (claimant returned a number of times to country
of nationality); Tejani, Abdulkarim v.
M.E.I.
(F.C.T.D.,
no. 92-T- 1306), Reed, June 2,
1993; Al-Kahtani, Naser Shafi Mohammad v.
M.C.I.
(F.C.T.D.,
no. IMM-2879-94), MacKay,
March 13, 1996. In Ali, supra, footnote 41 the
Court found that the CRDD's
conclusion that the claimants would not have returned to Sudan if they
had a well-founded fear of persecution, was an inference that was reasonably
open to the CRDD.
But see Maldonado v. Canada
(Minister of Employment and Immigration), [1980] 2 F.C.
302 (C.A.) at 304;
and Parada, supra, footnote 23 (CRDD
made no adverse credibility finding). See also Araya, supra, footnote
51. The principal claimant had returned to Chile and remained there
for some nine weeks while she obtained the permission of the father
of her child to remove the child from Chile. While the evidence regarding
reavailment clearly indicated that it was for the sole purpose of allowing
the mother to bring her son to Canada with her, the evidence did not
go so far as to establish that other arrangements could not have been
made so that the two claimants could have left Chile together when the
mother first left.)
- In Maldonado, supra, footnote
53, the Court pointed out that the Immigration Appeal Board ignored
the fact that the claimant was able to obtain his passport (and exit
papers) through his brother's contacts with the government. In Jbel,
Bouazza v. M.E.I.
(F.C.T.D.,
no. A-1058-92), Gibson, September 10,
1993, the fact that claimant had obtained a passport before the occurrence
that motivated him to leave his country, was found not to be inconsistent
with his decision to leave for the reason he stated.
- Orelien v.
Canada (Minister of Employment and Immigration), [1992] 1 F.C.
592 (C.A.). See
also Bello, supra, footnote 45.
- Herrera, Juan Blas Perez de Corcho v.
M.E.I.
(F.C.T.D.,
no. A-615-92), Noël,
October 19, 1993, at 3; see also Chapter 7, section 7.3., sur
place claims.
- Kanji, Mumtaz Badurali v.
M.C.I.
(F.C.T.D.,
no. IMM-2451-96), Campbell,
April 4, 1997.
- Asfaw, Napoleonv.
M.C.I.
(F.C.T.D.,
no. IMM-5552-99), Hugessen,
July 18, 2000, at paragraph 4.
- Zewedu, Haimanot v.
M.C.I.
(F.C.T.D.,
no. IMM-5564-99), Hugessen,
July 18, 2000, at paragraph 5.
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