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CHAPTER 7
7. CHANGE OF CIRCUMSTANCES AND COMPELLING REASONS
7.1. CHANGE OF CIRCUMSTANCES
The question raised by a claim to refugee
status is not whether the claimant had reasons to fear persecution in
the past, but rather whether he or she now, at the time the claim is being
decided, has good grounds to fear persecution in the future.1
That same test is applied in cases where there have been changes in country
conditions: the onus does not shift in such cases, nor does the standard
of proof which the claimant is required to meet differ.2
7.1.1. Standard of Proof and Criteria
As in all other claims before the Refugee
Protection Division, previously heard pursuant to section 69.1 of the
Immigration Act, the test of well-foundedness found in Adjei3
applies to claims involving an assessment of changed or changing country
conditions.4
The Trial Division generated a considerable
body of case law in which divergent positions were taken on the applicability
of the so-called "Hathaway test"5
in assessing claims where there have been changes in country conditions
since the claimant's departure from his or her country of nationality.
The issue was clarified by the Court
of Appeal in Yusuf,6
which explicitly rejected the notion that there is a separate legal test
by which the changed circumstances must be measured. Mr. Justice
Hugessen stated for the Court:
the issue of so-called "changed circumstances" seems
to be in danger of being elevated, wrongly in our view, into a question
of law when it is, at bottom, simply one of fact. A change in the political
situation in a claimant's country of origin is only relevant if it may
help in determining whether or not there is, at the date of the hearing,
a reasonable and objectively foreseeable possibility that the claimant
will be persecuted in the event of return there. That is an issue for
factual determination and there is no separate legal "test" by which any
alleged change in circumstances must be measured. The use of words such
as "meaningful", "effective" or "durable" is only helpful if one keeps
clearly in mind that the only question, and therefore the only test, is
that derived from the definition of Convention Refugee in s. 2
of the [Immigration] Act: does the claimant now have
a well-founded fear of persecution?
In the subsequent decision of the Court
of Appeal in Rahman,7
Mr. Justice Robertson elaborated
on this issue:
This Court has previously held in Yusuf
that
the issue of "changed circumstances" is essentially one of fact.Indeed,
what is important is not so much the change as the actual circumstances
existing in the claimant's country of origin. The question is whether
those circumstances support the claimant's alleged well-founded fear of
persecution. (emphasis in the original)
7.1.2. Application
It follows, from the foregoing, that
changes that fall short of the criteria put forth by Professor Hathaway
may also be relevant for an assessment of the claimant's fear of persecution
and should be weighed, in the balance, along with all the other relevant
evidence in the claim.8
In Sukhraj Singh,9 the Court recognized that the documentary evidence
in a particular case may not be unequivocal as to the political situation
in a country, and even contradictory in certain areas. (It is up to the
Refugee Protection Division to assess whether the evidence is sufficient
to support its conclusion. In so doing, it can reasonably rely on evidence
it considers most consistent with reality.) Moreover, improved country
conditions may be found to be sufficient given the claimant's circumstances,
notwithstanding the fact that there are improvements yet to be achieved.10
The Trial Division, in Barreto,11
held that there is no statutory requirement that compels a consideration
of section 2(2)(e) of the Immigration Act - now
section 108(1)(e) of the Immigration and Refugee Protection
Act - when assessing whether, in light of a change in country conditions,
the claimant's fear is objectively well founded. Moreover, a change in
country conditions may be assessed not as an independent and overriding
consideration, but as part of a blended assessment of well-foundedness
along with other factors such as passage of time and lack of continued
interest in the claimant by the agent of persecution.12
In Penate,13
a pre-Yusuf case, Madam Justice Reed of the Trial Division
provided the following guidance on the relevance of the "Hathaway criteria"
in assessing the present well-foundedness of a claim:
when a panel is weighing changed country conditions together
with all the evidence in [a claimant's] case, factors such as durability,
effectiveness and substantiality are still relevant. The more durable
the changes are demonstrated to be, the heavier they will weigh against
granting the [claimant's] claim. In addition, if a panel has in fact made
a determination that status would have existed but for changed circumstances
(that is, if it has voluntarily adopted that type of conceptual analysis)
then a more rigorous assessment of the changed conditions following the
criteria set out by Professor Hathaway will likely be appropriate.
In the following pre-Yusuf
cases, where the claims would have been established but for the changes
in country conditions, the dicta of the Court of Appeal indicate that
a more rigorous evaluation of the effect of the changes was to be undertaken.
In Ahmed,14
the Court referred to "a clear indication of a meaningful and effective
change which is required to expunge the objective foundation of the
claim."In Cuadra,15
the Court referred to "the requirement that the change be meaningful and
effective enough to render the genuine fear of the [claimant] unreasonable
and hence without foundation."
The continued relevance of the "Hathaway
factors" was underscored in the post-Yusuf case of Vodopianov,16
which overturned a CRDD
decision as inadequate because there was no analysis of the meaningfulness,
effectiveness and durability of the recent changes in that country. On
the other hand, where the changes invoked relate to the personal circumstances
of an individual for which that individual claimed refugee status, the
Trial Division held (in the context of a cessation application) that the
Minister does not have the burden of showing that the individual had changed
and that the change was durable. It is sufficient that the Board be satisfied
that the change of circumstances is significant and effective.17
Although the Refugee Protection Division
may find, in appropriate cases, that even recent changes are sufficient
to remove the basis of the claimant's fear of persecution,18
it should not rely on or give much, if any, weight to changes that are
short-lived, transitory, inchoate, tentative, inconsequential or otherwise
ineffective in substance or implementation.19
Finally, the case law is clear that
the changes which are being relied on as removing the reasons for the
claimant's fear of persecution are not assessed in the abstract but for
their impact on the claimant's particular situation.20
7.1.3. Reasons and Assessment of Evidence
The Court of Appeal has pointed out
in Ahmed21
that it is not sufficient for the Refugee Division to simply state that
a change has taken place (e.g.
the declarations of a new government), "without more explanation to establish
that the appropriate legal principles were applied." Where the changes
are very recent, the evidence must be subjected to a detailed analysis
to determine whether this change is significant enough to eliminate the
claimant's fear.22
In the decision of Mohamed,23
Mr. Justice Denault of the
Trial Division set out the following helpful checklist or approach:
when making a finding on the issue of changes in circumstances
the tribunal must, at least, turn its mind to the objective basis of the
[claimant's] fear of persecution, the alleged agents of persecution and
the form or nature of the persecution feared in order to properly evaluate
the effect of the change. This evaluation must relate to the particular
circumstances of the [claimant] and the tribunal should provide a clear
indication or explanation for its finding.
Furthermore, although there is no requirement
to cite every piece of evidence before it, the Refugee Protection Division's
reasons should demonstrate that it was not unduly selective, but rather
has considered all of the relevant evidence, both that which supports
a conclusion of changed country conditions and that which does not, in
reaching its decision.24
Moreover, before arriving at a conclusion on the impact of the changes
on the claim the Refugee Division should have received evidence that relates
specifically to the basis of the claimant's fear of persecution.25
7.1.4. Notice
The Trial Division has held that if
a change in circumstances is to be relied on in the Refugee Protection
Division's reasons, the issue must be raised or notice must be otherwise
given at the hearing.26
7.1.5. Post-Hearing Evidence
There is no obligation on the Refugee
Protection Division to consider post-hearing evidence relating to changes
in country conditions unless that evidence has been submitted by the claimant,27
and accepted by the panel,28
before the panel renders a final decision on the claim. The Refugee Protection
Division may, on its own motion, provide additional documents and reconvene
a hearing into a claim that has not been concluded with a final decision,
to hear evidence relating to changes in country conditions.29
7.2. COMPELLING REASONS
7.2.1. Applicability
In the Obstoj30
decision, the Court of Appeal considered the issue of the applicability
of the exception found in section 2(3) of the Immigration Act
("compelling reasons arising out of any past persecution for refusing
to avail
"), and held that this provision can be properly considered
by the Refugee Division in hearings under section 69.1 of that Act.31 This principle appears to be still relevant under
the Immigration and Refugee Protection Act. A similarly worded
"compelling reasons" provision is now found in section 108, which
reads:
108. (1) A claim for refugee protection shall be rejected, and
a person is not a Convention refugee or a person in need of protection,
in any of the following circumstances:
(e) the reasons for which the person sought refugee
protection have ceased to exist.
(4) Paragraph (1)(e) does not apply to a person
who establishes that there are compelling reasons arising out of previous
persecution, torture, treatment or punishment for refusing to avail themselves
of the protection of the country which they left, or outside of which
they remained, due to such previous persecution, torture, treatment or
punishment.
In Cortez,32
the Trial Division held that the applicability of section 2(2)(e)
and 2(3) of the Immigration Act was dependent on a finding that
the claimant had a well-founded fear of persecution when the person left
his or her country of nationality. The reasons for one's fear of persecution
have to have ceased thereafter for the compelling reasons exception to
be triggered.33
This interpretation was adopted by the Court of Appeal in Cihal,34
where the Court confirmed that the CRDD
was not required to consider whether past persecution constitutes compelling
reasons under section 2(3) of the Immigration Act, where
it determines that the claimant was not a Convention refugee at the time
of departure from the country of nationality. The same approach would
prevail under the Immigration and Refugee Protection Act.
In Moore,35
the Trial Division held that the terms of reference for applying section 2(3)
of the Immigration Act are changes in country conditions, and
not changes in the personal circumstances of an individual claimant.
In Corrales,36
the Trial Division held that since the CRDD
never made a determination that the claimant was a Convention refugee,
there was no need for it to consider compelling reasons under section 2(3)
of the Immigration Act. Thus, section 2(3) should not be
considered if it is determined that there has been no change in country
conditions37
or if a claimant's factual evidence is not believed.38
Nor does section 2(3) of the Immigration Act apply where
the claimant has not established a nexus between the fear and one of the
grounds contained in the Convention.39
The same considerations would apply to the current section 108(4)
of the Immigration and Refugee Protection Act.
In Gurmeet Singh,40 the Trial Division considered the issue of the
relationship between IFA
(internal flight alternative) and change of circumstances and the applicability
of the "compelling reasons" exception. The Court concluded that where
an IFA
applies to a claimant, that person is not and never could have been a
Convention refugee.Accordingly, he or she cannot cease to be a Convention
refugee and section 2(3) of the Immigration Act would not
apply, as this section applies only where the determination of the claim
is made, in whole or in part, on the basis of a change of circumstances.41
In Guzman,42
the CRDD
found, primarily based on the long delay in making their claims, that
the claimants lacked a subjective fear. The Trial Division held that the
fact that the CRDD
then went on to consider changed country conditions, as an additional
reason for which to reject the claim, did not eliminate or undermine its
earlier finding that the claimants had no subjective fear of persecution.
Mr. Justice Rothstein reasoned that
paragraph 2(2)(e) and subsection 2(3) [of
the Immigration Act, i.e.,
the "compelling reasons" exception] only come into play if there is a
finding that the [claimant], at least at one time, were Convention refugees.
I think this includes a finding that at one time they would have met the
definition of Convention refugee. In the present case, there is no such
finding.
7.2.2. Duty to Consider and Adequacy of Reasons
In Yamba,43
the Court of Appeal clarified the law in this area by stating that in
every case in which the CRDD
concludes that a claimant has suffered past persecution, but there has
been a change of country conditions under section 2(2)(e)
of the Immigration Act, the CRDD
is obligated to consider whether the evidence presented establishes that
there are "compelling reasons". This obligation arises whether or not
the claimant expressly invokes section 2(3).Nevertheless, the
evidentiary burden remains on the claimant to adduce the evidence necessary
to establish that he or she is entitled to the benefit of that provision.
The same principle would hold true with regard to section 108(4)
of the Immigration and Refugee Protection Act.
In Adjibi,44 the Trial Division stressed that the reasons given
by the CRDD
for concluding that section 2(3) of the Immigration Act does
not apply must be adequate. In that case, the reasons of the CRDD
were simply that there was "insufficient evidence" to warrant the application
of section 2(3). (The claimant was found to have been raped repeatedly
and was diagnosed with Post-Traumatic Stress Disorder.) The Court found
that it was not clear what the panel meant when it spoke of "insufficient
evidence". Secondly, the panel must provide a sufficiently intelligible
explanation as to why persecutory treatment does not constitute compelling
reasons. This requires thorough consideration of the level of atrocity
of the acts inflicted upon the claimant, the effect on her physical and
mental state, and whether the experiences and their sequelae constitute
a compelling reason not to return her to her country of origin45
7.2.3. Meaning of "Compelling Reasons"
In Obstoj,46 Mr. Justice
Hugessen of the Court of Appeal held that section 2(3) of the Immigration
Act - now section 108(4) of the Immigration and Refugee
Protection Act - should be read
as requiring Canadian authorities to give recognition of refugee
status on humanitarian grounds to this special and limited category of
persons, i.e.
those who have suffered such appalling persecution that their experience
alone is compelling reason not to return them, even though they may no
longer have any reason to fear further persecution.
The phrase "appalling persecution" in
this context harks back to paragraph 136 of the UNHCR
Handbook which states in part:
It [i.e.,
the "compelling reasons" exception] deals with the special situation where
a person may have been subjected to very serious persecution in the past
and not therefore cease to be a refugee, even if fundamental changes have
occurred in his country of origin.
The exception, however, reflects
a more general humanitarian principle, which could also be applied to
refugees other than statutory refugees. It is frequently recognized that
a person who -- or whose family -- has suffered under atrocious forms
of persecution should not be expected to repatriate.
Mr. Justice
Hugessen went on, in Obstoj (at 748), to state that "[t]he exceptional
circumstances envisaged by subsection 2(3) [of the Immigration
Act] must surely apply only to a tiny minority of present day claimants."47
The case law indicates that the threshold necessary to demonstrate "compelling
reasons" is a high one.48
Furthermore, determining whether, in a given case, there are "compelling
reasons" is a question of fact.49
In Arguello-Garcia,50
in assessing "the objective factors" (i.e.,
the claimant's experiences), the Trial Division turned to dictionary definitions
of "atrocious" and "appalling" for guidance on the issue of what may be
considered sufficiently serious persecution to find "compelling reasons".
The Court further stated that in considering the particular persecution
experienced, as well as the reasons for it, one must also consider the
negative or psychological effect of past persecution.51
The Refugee Protection Division is required
to assess whether or not the nature of the persecution in a particular
case before it constitutes "compelling reasons", and it must explain why
the torture, if so found, or other reprehensible treatment, does or does
not meet the requirements of section 108(4) of the Immigration
and Refugee Protection Act.52
Thus, if theBoard finds the treatment received by the claimant to be "revolting"
or "vile and reprehensible", as it did in Biakona,53
it should go on to state (which it failed to do in that case) why it concluded
that the acts committed cannot be considered compelling reasons.
Generally, the jurisprudence of the
Trial Division is to the effect that "compelling reasons" arise out of
past persecution which can be characterized as "atrocious" or "appalling",
though this standard is not free from doubt. In Kulla,54
however, the Court held that the issue is not whether the claimant's past
experience could be characterized as "atrocious" and "appalling", descriptions
found in other jurisprudence, but rather, as Madam Justice Reed stated
in Dini:55
"If the person establishes there are compelling reasons arising out of
any previous persecution for refusing to avail himself of the protection
of the country that the person left."
In a subsequent judicial review of Dini,
it was argued that Madam Justice Reed implicitly determined that
under section 2(3) of the Immigration Act, the treatment
might not have to reach the level of "appalling" or "atrocious". The confusion
in the case law of the Trial Division regarding the issue of the proper
test to assess "compelling reasons" led the Court to certify a question.56
Subsequently, in Elemah,57
the Trial Division held that Obstoj did not establish a test
which necessitates that the persecution reach a level to qualify it as
"atrocious" and "appalling".
More recently, in Adjibi,58
the Trial Division concluded that it did not have to consider whether
in every case the standard of "compelling reasons" is subsumed in an inquiry
into prior "appalling" and "atrocious" persecution. In view of the evidence
before the CRDD
(the claimant had been raped repeatedly), the words "appalling" and "atrocious"
were proper interpretative aids to guide the CRDD
as to whether the evidence supported the claimant's submission that compelling
reasons existed not to return her to her country.
Evidence - usually in the form of a
medical report or psychological assessmen - of present psychological and
emotional suffering can be used to demonstrate that the claimant continues
to suffer the effects of past persecution.59
The Court held in Kulla,60
as it did another case,61
that it is an error to disregard a medical condition, supported by a medical
or psychological report, as a factor in assessing whether there were "compelling
reasons" which would lead to the application of section 2(3) of the
Immigration Act, now section 108(4) of the Immigration
and Refugee Protection Act.
If the Refugee Protection Division accepts
the claimant's description of his or her treatment, and the medical and
psychological reports are consistent with that description, a delay in
seeking medical treatment does not appear be a relevant factor.62
The Trial Division has also held that
the CRDD
(now the Refugee Protection Division) may take into account the experiences
of family members in its assessment of "compelling reasons."63
Persecution of a family member can of itself be sufficient to constitute
compelling reasons.64
The subsistence of certain attitudes
among the general population is not a necessary condition for the application
of the provision.65
Nor does a brief return to the country of alleged persecution necessarily
preclude its application.66
In Adjibi,67 the Trial Division held that the CRDD
was not obliged to consider section 2(3) of the Immigration Act
in respect of the incidents that took place when the claimant, a
national of the Congo, resided in South Africa.Persecutory treatment in
another country cannot justify a refusal to avail oneself of the protection
of one's home country.However, these events may exaggerate or amplify
the effect of the persecutory conduct, and the CRDD
must take refugee claimants as they are at the time of the hearing before
the CRDD
in order to determine whether the claimant should not be expected to repatriate.
In this case, the CRDD
would properly have had regard to the cumulative effect on the claimant
of the events she experienced both in the Congo and South Africa.
7.2.3.1. Summary of the State of the Case Law
According to one line of authority,
there is both an objective component (i.e.,
the nature and severity of the claimant's experiences) and a subjective
component (i.e.,
the continued effect or trauma of those experiences on the claimant's
emotional or psychological well-being) that need to be looked at. (These
two components required to establish "compelling reasons" do not
coincide with the two elements of "well-founded fear of persecution",
namely, subjective fear and objective basis, neither of which are a requirement
for the "compelling reasons" exception to be triggered.)
Summarizing the state of the case law
in Shahid,68
Mr. Justice Noël of the
Trial Division stated:
In Arguello-Garcia
McKeown J. established the
following test for the application of subs. 2(3)
[of the Immigration Act]:
(1) The claimant must have
suffered from "atrocious" or "appalling" acts of persecution in the country
from which he or she is claiming asylum;
(2) The claimant must have
a subjective fear of persecution such that he refuses to return to his
country of origin and asks for the protection of the authorities of that
country;
[Note: This statement may be incorrect in that the Court in
Arguello-Garcia did not explicitly require the claimant to demonstrate
an ongoing subjective fear of persecution.]
(3) The claimant must suffer
continuing psychological after-effects of the previous persecution.
The board, once it embarked upon the assessment of the
claim under subs. 2(3),
had the duty to consider the level of atrocity of the acts inflicted upon
the [claimant], the repercussions upon his physical and mental state,
and determine whether this experience alone constituted a compelling reason
not to return him to his country of origin.
In Mandar,69
Mr. Justice Campbell held that the
proper test to be applied is the one stated by Justice Noël in Shahid:
the panel has the duty to consider the level of atrocity of the acts committed
on the claimant, the repercussions upon his physical and mental state,
and determine whether this experience alone constituted a compelling reason
not to return.
However, there is also another line
of authority that rejects the requirement of establishing continuing psychological
after-effects of previous persecution. In Jiminez,70
Mr. Justice Rouleau challenged
Mr. Justice Noël's obiter
interpretation, as set out in Shahid, of the Trial Division decision
of Arguello-Garcia. In particular, Mr. Justice
Rouleau found that the jurisprudence does not support that there is a
further test of continuing psychological after-effects which the claimant
has to establish, once there is evidence of his or her having suffered
"atrocious" or "appalling" acts of persecution.
Even for the latter line of authority,
however, it would appear that, while there is no test or requirement of
continuing psychological after-effects, the existence of such a condition
would still be relevant to -- and supportive of an assessment of "compelling
reasons" and should not, therefore, be disregarded.
7.3. Sur Place Claims
A claimant may be a refugee as a consequence
of events which have occurred in his or her country of origin since departure,71 or because of a significant intensification of
pre-existing factors since departure from his or her country.72
Claims may also be advanced based, in
whole or part, on the activities of the claimant since leaving his or
her country.73
7.3.1. Claimant's Activities Abroad
According to paragraph 96 of the
UNHCR
Handbook, the key issues in cases based on the claimant's activities
since leaving his or her home country are "whether such actions may have
come to the notice of the authorities of the person's country of origin
and how they are likely to be viewed by those authorities." Even though
a claimant's actions subsequent to departure may have come to the attention
of the authorities there, it may nevertheless be that, in the circumstances,
those actions do not make for a well-founded fear of persecution.74
In Wang,75
the Trial Division held that a sur place could not be maintained
in the absence of evidence that the making of the refugee claim had specifically
come to the attention of the authorities of the claimant's country of
origin. The Court certified a question as to whether in a sur place
claim, it is necessary for the claimant to prove (a) that the Canadian
media reports came to the attention of the authorities of his or her country
of origin, and (b) that the information in the media reports was sufficient
to allow the authorities to identify the claimant.
On the other hand, in Zhu,76 the Trial Division held that once the evidence
established that the claimant's information was given to counsel for the
accused, and filed in evidence at a public trial in Canada and in publicly
accessible court records, it was patently unreasonable for the CRDD
to suggest that further evidence was required to establish that the information
actually came to the attention of a potential agent of persecution in
the claimant's country of origin. In the Court's view, that is too high
a requirement to establish more than a mere possibility of persecution.
Where claims are based on the claimant's
activities abroad, some decisions of the Trial Division have focused on
the issue of the bona fides or motivation of the claimant and
have found that the claimant did not have a subjective fear of persecution.77
On the other hand, in Ngongo,78
the Trial Division cited with approval the following passage from Professor
Hathaway's The Law of Refugee Status:
It does not follow, however, that all persons whose activities
abroad are not genuinely demonstrative of oppositional political opinion
are outside the refugee definition.Even when it is evident that the voluntary
statement or action was fraudulent in that it was prompted primarily by
an intention to secure asylum, the consequential imputation to the claimant
of a negative political opinion by authorities in her home state may nonetheless
bring her within the scope of the Convention definition. Since refugee
law is fundamentally concerned with the provision of protection against
unconscionable state action, an assessment should be made of any potential
harm to be faced upon return because of the fact of the non-genuine political
activity engaged in while abroad.79
In Asfaw,80
the Trial Division held that while it is relevant to examine the motives
underlying a claimant's participation in demonstration against his government
in Canada in order to determine whether the claimant has a subjective
fear, it would be an error for the CRDD
to stop the analysis there as it is also necessary to examine whether
or not the fear has an objective basis.
Evidence of political activities in
Canada should be considered by the panel whether or not the claimant specifically
raises a sur place claim.81
However, where the decision is under reserve, the onus is on the claimant
to request a reconvening of the hearing (before a final decision on the
claim has been rendered) in order to consider the impact that any newly
alleged sur place basis to the claim might have.82
7.3.2. Changes in Country Conditions or Claimant's
Personal Circumstances
The fact that the claimant's departure
from his or her homeland may have been perfectly legal is not relevant
when considering a sur place possibility.What is required is
an assessment of the situation in the country of origin after the claimant
left it.83
In Tang,84
the Trial Division pointed out that, in the case of a sur place
claim, the relevant date to assess a delay in making a refugee claim is
the date as of which the claimant became aware that he or she would allegedly
face persecution on return to the country of nationality, and not the
date on which the claimant arrived in Canada.
In Makala,85
the Trial Division considered the applicability of paragraph 82
of the UNHCR
Handbook which states:
There may, however, also be situations in which the applicant
has not given any expression to his opinions. Due to the strength of his
convictions, however, it may be reasonable to assume that his opinions
will sooner or later find expression and that the applicant will, as a
result, come into conflict with the authorities.Where this can reasonably
be assumed, the applicant can be considered to have fear of persecution
for reason of political opinion.
The Court found that the CRDD's
erroneous finding that the claimant was not politically involved while
in Congo may have impacted on its appreciation of the strength of the
claimant's political convictions and potential actions against the government
upon return to Congo.
In Nthoubanza,86
on the other hand, the Trial Division upheld the CRDD's
finding that there was no evidence that the claimant would reasonably
be likely to become a human rights activist or to express his political
opinion if he returned to his country, given that he had not been a human
rights or political activist under the previous regime.
A claimant may become a refugee sur
place by virtue of the actions of Canadian authorities in that person's
home country.87
- Abarajithan, Paramsothy v.
M.E.I.
(F.C.A.,
no. A-805-90), Stone, MacGuigan,
Linden, January 28, 1992
- Adaros-Serrano, Maria Macarena v.
M.E.I.
(F.C.T.D.,
no. 93-A-124), McKeown, September 31,
1993.Reported: Adaros-Serrano v.
Canada (Minister of Employment and Immigration) (1993), 22 Imm.
L.R. (2d) 31 (F.C.T.D.)
- Adjei v. Canada (Minister
of Employment and Immigration), [1989] 2 F.C.
680 (C.A.)
- Adjibi, Marcelle v. M.C.I.
(F.C.T.D.,
no. IMM-2580-01), Dawson,
May 8, 2002; 2002 FCT
525
- Agyakwah, Elizabeth Lorna v.
M.E.I.
(F.C.T.D.,
no. A-7-93), McKeown, December 10,
1993
- Ahmed, Ali v. M.E.I.
(F.C.A.,
no. A-89-92), Marceau, Desjardins,
Décary, July 14, 1993.Reported: Ahmed v.
Canada (Minister of Employment and Immigration) (1993), 156 N.R.
221 (F.C.A.)
- Alam, Mohammed Mahfuz v.
M.C.I.
(F.C.T.D.,
no. IMM-4883-97), McGillis,
October 7, 1998
- Ali, Ismail Farah v. M.E.I.
(F.C.T.D.,
no. A-1095-92), Noël,
November 2, 1993
- Alza, Julian Ulises v. M.C.I.
(F.C.T.D.,
no. IMM-3657-94), MacKay,
March 26, 1996
- André, Marie-Kettelie v.
M.E.I.
(F.C.T.D.,
no. A-1444-92), Dubé,
October 24, 1994
- Ansar, Iqbal v. M.C.I.
(F.C.T.D.,
no. IMM-4124-97), Campbell,
July 22, 1998
- Antonio, Neto Xavier v.
M.C.I.
(F.C.T.D.,
no. A-472-92), Noël,
January 27, 1995
- Aragon, Luis Roberto v.
M.E.I.
(F.C.T.D.,
no. IMM-4632-93), Nadon,
August 12, 1994
- 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.)
- Asaolu: M.C.I.
v. Asaolu, Daniel Oluwafemi
(F.C.T.D.,
no. IMM-237-98), Campbell,
July 31, 1998. Reported: Canada (Minister of Citizenship and
Immigration) v. Asaolu (1998),
45 Imm.
L.R. (2d) 190 (F.C.T.D.)
- Asfaw, Napoleon v. M.C.I.
(F.C.T.D.,
no. IMM-5552-99), Hugessen,
July 18, 2000
- Ayankojo, Isaac Olymuyiwa Olaoluwa v.
M.C.I.
(F.C.T.D.,
no. 3877-99), Reed, June
8, 2000
- Barreto, Hugo Cesar Ghan v.
M.C.I.
(F.C.T.D.,
no. IMM-3987-94), Wetston,
June 7, 1995
- Belozerova, Natalia v. M.C.I.
(F.C.T.D.,
no. IMM-912-94), Simpson,
May 25, 1995
- Bhardwaj, Shanti Parkash v.
M.C.I.
(F.C.T.D.,
no. IMM-240-98), Campbell,
July 27, 1998.Reported: Bhardwaj v.
Canada (Minister of Citizenship and Immigration) (1998), 45 Imm.
L.R. (2d) 192 (F.C.T.D.)
- Bhuiyan, Nazrul Islam v.
M.E.I.
(F.C.T.D.,
no. 92-A-6737), MacKay, September 13,
1993
- Boateng, Joseph Kwaku v.
M.E.I.
(F.C.T.D.,
no. 92-A-6560), Noël,
May 4, 1993
- Cai, Heng Ye v. M.C.I.
(F.C.T.D.,
no. IMM-1088-96), Teitelbaum,
May 16, 1997
- Castellanos, Julio Alfredo Vaquerano v.
M.C.I.
(F.C.T.D.,
no. IMM-2082-94), Gibson,
October 18, 1994.Reported: Castellanos v.
Canada (Minister of Citizenship and Immigration) (1994), 30 Imm.
L.R. (2d) 77 (F.C.T.D.)
- Chaudary, Imran Akram v.
M.C.I.
(F.C.T.D.,
no. IMM-2048-94), Reed, May 4,
1995
- Chaudri, Tahir Ahmad Nawaz v.
M.E.I.
(F.C.A.,
no. A-1278-84), Thurlow,
Hugessen, McQuaid, June 5, 1986.Reported: Chaudri v.
Canada (Minister of Employment and Immigration) (1986), 69 N.R.
114 (F.C.A.)
- Chavez-Menendez, Franklin v.
M.E.I.
(F.C.T.D.,
no. IMM-170-93), Gibson,
June 16, 1994
- Chen, Kang v. S.G.C.
(F.C.T.D.,
no. A-1176-91), Gibson, August 6,
1993
- Chowdhury, Mashiul Haq v.
M.E.I.
(F.C.T.D.,
no. 92-A-6565), Noël,
June 2, 1993
- Cihal, Pavla v. M.C.I.
(F.C.A.,
no. A-54-97), Stone, Evans,
Malone, May 4, 2000
- Corrales, Maria Cecilia Abarca v.
M.C.I.
(F.C.T.D.,
no. IMM-4788-96), Reed, October 3,
1997
- Cortez, Delmy Isabel v.
S.S.C.
(F.C.T.D.,
no. IMM-2482-93), McKeown,
December 15, 1993
- Cuadra, Walter Antonio v.
S.G.C. (F.C.A.,
no. A-179-92), Isaac, Marceau,
Linden, July 20, 1993.Reported: Cuadra v.
Canada (Solicitor General) (1993), 157 N.R.
390 (F.C.A.)
- Diallo, Abdou Salam v. M.C.I.
(F.C.T.D.,
no. A-1157-92), Noël,
June 8, 1995
- Diamanama, Nsimba v. M.C.I.
(F.C.T.D.,
no. IMM-2288-97), Richard,
June 23, 1998
- Dini, Majlinda v. M.C.I.
(F.C.T.D.,
no. IMM-2596-00), Gibson,
March 22, 2001
- Dini, Majlinda v. M.C.I.
(F.C.T.D.,
no. IMM-3562-98), Reed, June
24, 1999
- Doganian, Rafi Charvarch v.
M.E.I.
(F.C.A.,
no. A-807-91), Hugessen,
MacGuigan, Décary, April 26, 1993
- Dolamore: M.C.I.
v. Dolamore, Jessica Robyn
(F.C.T.D.,
no. IMM-4580-00), Blais,
May 1, 2001; 2001 FCT
421
- El-Bahisi, Abdelhady v.
M.E.I.
(F.C.T.D.,
no. A-1209-92), Denault,
January 4, 1994
- Elemah, Paul Omorogbe v.
M.C.I.
(F.C.T.D.,
no. IMM-2238-00), Rouleau,
July 10, 2001
- Emnet, Angeset Woldmichael v.
M.E.I.
(F.C.T.D.,
no. 93-A-182), MacKay, August 27,
1993
- Garcia, Rosa Elena Duran v.
M.C.I.
(F.C.T.D.,
no. IMM-2523-95), McKeown,
May 10, 1996
- Ghazizadeh, Reza v. M.E.I.
(F.C.A.,
no. A-393-90), Hugessen,
MacGuigan, Décary, May 17, 1993.Reported: Ghazizadeh
v. Canada (Minister of Employment
and Immigration) (1993), 154 N.R.
236 (F.C.A.)
- Gicu, Andrei Marian v. M.C.I.
(F.C.T.D.,
no. IMM-2140-98), Tremblay-Lamer,
March 5, 1999
- Gill, Jagdip v. M.C.I.
(F.C.T.D.,
no. IMM-448-97), Lutfy, December 31,
1997
- Guzman, Jesus Ruby Hernandez v.
M.C.I.
(F.C.T.D.,
no. IMM-3748-97), Rothstein,
October 29, 1998
- Gyamfuah, Cecilia v. M.E.I.
(F.C.T.D.,
no. IMM-3168-93), Simpson,
June 3, 1994.Reported: Gyamfuah v.
Canada (Minister of Employment and Immigration) (1994), 25 Imm.
L.R. (2d) 89 (F.C.T.D.)
- Hanfi, Aden Abdullah v.
M.E.I.
(F.C.T.D.,
no. A-610-92), Gibson, March 31,
1995
- Hassan, Nimo Ali v. M.E.I.
(F.C.T.D.,
no. A-653-92), Rothstein,
May 4, 1994
- Hassan, Noor v. M.E.I.
(F.C.A.,
no. A-831-90), Isaac, Heald,
Mahoney.Reported: Hassan v.
Canada (Minister of Employment and Immigration) (1992), 147 N.R.
317 (F.C.A.)
- Hernandez, Alvaro Odilio Valladares v.
M.E.I.
(F.C.A.,
no. A-210-90), Stone, Linden,
McDonald, July 7, 1993
- Hernandez, Fabian Edward v.
M.C.I.
(F.C.T.D.,
no. IMM-2410-95), Jerome,
May 10, 1996
- Herrera, Juan Blas Perez de Corcho v.
M.E.I.
(F.C.T.D.,
no. A-615-92), Noël,
October 19, 1993
- Herrera, Rosa Adela Barrera v.
M.C.I.
(F.C.T.D.,
no. A-1055-92), MacKay, March 29,
1995
- Hinson, Jane Magnanang v.
M.C.I.
(F.C.T.D.,
no. IMM-5034-94), Richard,
July 18, 1996
- Igbalajobi, Buki v. M.C.I.
(F.C.T.D.,
no. IMM-2230-00), McKeown,
April 18, 2001
- Islas, Alfonso Godinez v.
M.C.I.
(F.C.T.D.,
no. IMM-647-94), Wetston,
December 2, 1994
- Jiminez, Wilfredo v. M.C.I.
(F.C.T.D.,
no. IMM-1718-98), Rouleau,
January 25, 1999
- Kaur, Sarabjit v. M.E.I.
(F.C.T.D.,
no. IMM-5701-93), Reed, August 19,
1994
- Kazi, Feroz Adeel v. M.C.I.
(F.C.T.D.,
no. IMM-850-97), Pinard,
August 15, 1997
- Kifoueti, Didier Borrone Bitemo v.
M.C.I.
(F.C.T.D.,
no. IMM-937-98), Tremblay-Lamer,
February 11, 1999
- Kulla, Hasan v. M.C.I.
(F.C.T.D.,
no. IMM-4707-99), MacKay,
August 24, 2000
- Lawani, Mathew v. M.C.I.
(F.C.T.D.,
no. IMM-1963-99), Haneghan,
June 26, 2000
- Magana, Douglas Ivan Ayala v.
M.E.I.
(F.C.T.D.,
no. A-1670-92), Rothstein,
November 10, 1993.Reported: Magana v.
Canada (Minister of Employment and Immigration) (1993), 22 Imm.
L.R. (2d) 300 (F.C.T.D.)
- Maina, Ali Adji v. M.C.I.
(F.C.T.D.,
no. IMM-1221-99), Gibson,
March 14, 2000
- Makala, François v.
M.C.I.
(F.C.T.D.,
no. IMM-300-98), Teitelbaum,
July 17, 1998.Reported: Makala v.
Canada (Minister of Citizenship and Immigration) (1998), 45 Imm.
L.R. (2d) 251 (F.C.T.D.)
- Mandar, Kashmeer Singh v.
M.C.I.
(F.C.T.D.,
no. IM-3450-99), Campbell,
April 5, 2000
- Manefo, Sidonie Lorince Donkeng v.
M.C.I.
(F.C.T.D.,
no. IMM-3696-00), Teitelbaum,
May 29, 2001; 2001 FCT
538
- Manzila, Nicolas v. M.C.I.
(F.C.T.D.,
no. IMM-4757-97), Hugessen,
September 22, 1998
- Mileva v. Canada (Minister
of Employment and Immigration), [1991] 3 F.C.
398 (C.A.)
- Mohamed, Mohamed Yasin v.
M.E.I.
(F.C.T.D.,
no. A-1517-92), Denault,
December 16, 1993
- Mongo, Parfait v. M.C.I.
(F.C.T.D.,
no. IMM-1005-98), May 6,
1999
- Moore, Clara v. M.C.I.
(F.C.T.D.,
no. IMM-682-00), Heneghan,
October 27, 2000
- Moradi, Ahmad v. M.C.I.
(F.C.T.D.,
no. IMM-2317-97), MacKay,
September 23, 1998
- Moz, Saul Mejia v. M.E.I.
(F.C.T.D.,
no. A-54-93), Rothstein,
November 12, 1993.Reported: Moz v.
Canada (Minister of Employment and Immigration) (1993), 23 Imm.
L.R. (2d) 67 (F.C.T.D.)
- Munkoh, Frank v. M.E.I.
(F.C.T.D.,
no. IMM-4056-93), Gibson,
June 3, 1994
- Mutamba, Phydellis v. M.C.I.
(F.C.T.D.,
no. IMM-2868-98), Pinard,
April 15, 1999
- Nallbani, Ilir v. M.C.I.
(F.C.T.D.,
no. IMM-5935-98), MacKay,
June 25, 1999
- Ngongo, Ndjadi Denis v.
M.C.I.
(F.C.T.D.,
no. IMM-6717-98), October
25, 1999
- Nthoubanza, Arthur Jholy v.
M.C.I.
(F.C.T.D.,
no. IMM-207-98), Denault,
December 17, 1998
- Nwaozor, Justin Sunday v.
M.C.I.
(F.C.T.D.,
no. IMM-4501-00), Tremblay-Lamer,
May 23, 2001; 2001 FCT
517
- Obstoj: Canada (Minister of Employment and Immigration) v.
Obstoj, [1992] 2 F.C.
739 (C.A.)
- Oduro, Ebenezer v. M.E.I.
(F.C.T.D.,
no. IMM-903-93), McKeown,
December 24, 1993
- Ofori, Beatrice v. M.E.I.
(F.C.T.D.,
no. IMM-3312-94), Gibson,
March 14, 1995
- Ortiz, Ligia Ines Arias v.
M.C.I.
(F.C.T.D.,
no. IMM-4416-01), Pinard,
November 13, 2002; 2002 FCT
1163
- Osei, Paul Kofi v. S.S.C.
(F.C.T.D.,
no. IMM-4893-93), Reed, June
13, 1997
- 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.)
- Penate v. Canada (Minister
of Employment and Immigration), [1994] 2 F.C.
79 (T.D.)
- Quaye, Sarah Adjoa v. M.C.I.
(F.C.T.D.,
no. IMM-3999-00), Tremblay-Lamer,
May 23, 2001; 2001 FCT
518
- Rabbani, Sayed Moheyudee v.
M.C.I.
(F.C.T.D.,
no. IMM-236-96), Noël,
January 16, 1997
- Rahman, Faizur v. M.E.I.
(F.C.A.,
no. A-1244-91), Marceau,
Desjardins, Létourneau, May 14, 1993
- Rahman, Sheikh Mohammed Mostafizur v.
M.E.I.
(F.C.A.,
no. A-398-92), Hugessen,
Létourneau, Robertson, March 3, 1995
- Said, Mohamed Ahmed v. M.E.I.
(F.C.T.D.,
no. 90-T-638), Teitelbaum,
May 1, 1990
- Salinas: M.E.I.
v. Salinas, Marisol Escobar
(F.C.A.,
no. A-1323-91), Stone, MacGuigan,
Henry, June 22, 1992.Reported: Canada (Minister of Employment
and Immigration) v. Salinas
(1992), 17 Imm.
L.R. (2d) 118 (F.C.A.)
- Sangha, Karamjit Singh v.
M.C.I.
(F.C.T.D.,
no. IMM-1555-98), Reed, September 8,
1998
- Sanoe, Sekou v. M.C.I.
(F.C.T.D.,
no. IMM-5047-98), Lemieux,
September 16, 1999
- Serhan: M.C.I.
v. Serhan, Jaafar (F.C.T.D.,
no. IMM-539-00), Dawson,
September 19, 2001; 2001 FCT
1029
- Shahid, Iqbal v. M.C.I.
(F.C.T.D.,
no. IMM-6907-93), Noël,
February 15, 1995.Reported: Shahid v.
Canada (Minister of Citizenship and Immigration) (1995), 28 Imm.
L.R. (2d) 130 (F.C.T.D.)
- Siddique, Ashadur Rahman v.
M.C.I.
(F.C.T.D.,
no. IMM-4838-93), Pinard,
July 18, 1994
- Singh, Gurmeet v. M.C.I.
(F.C.T.D.,
no. IMM-75-95), Richard,
July 4, 1995.Reported: Singh, (Gurmeet) v.
Canada (Minister of Citizenship and Immigration) (1995), 30 Imm.
L.R. (2d) 226 (F.C.T.D.)
- Singh, Sukhraj v. M.C.I.
(F.C.T.D.,
no. IMM-2803-95), Lutfy,
January 10, 1997
- Stoyanov, Gueorgui Ivanov v.
M.E.I.
(F.C.A.,
no. A-206-91), Hugessen,
Mahoney, Décary, April 26, 1993
- Tang, Xiaoming v. M.C.I.
(F.C.T.D.,
no. IMM-3650-99), Reed, June
21, 2000
- Toah, Esther v. S.S.C.
(F.C.T.D.,
no. IMM-3380-94), Gibson,
June 1, 1995
- Urur, Mohamed Ahmed v. M.E.I.
(F.C.A.,
no. A-228-87), Pratte, Joyal,
Walsh, January 15, 1988
- Vafaei, Farah Angiz v. M.E.I.
(F.C.T.D.,
no. IMM-1276-93), Nadon,
February 2, 1994
- Vasuthevan, Nagamany v.
M.E.I.
(F.C.T.D.,
no. IMM-887-93), Jerome,
March 23, 1994
- Velasquez, Ana Getrudiz v.
M.E.I.
(F.C.T.D.,
no. IMM-990-93), Gibson,
March 31, 1994
- Ventura, Simon Alberto v.
M.E.I.
(IMM-6061-93), Cullen, October 5, 1994
- Villalta, Jairo Francisco Hidalgo v.
S.G.C. (F.C.T.D.,
no. A-1091-92), Reed, October 8,
1993
- Vodopianov, Victor v. M.E.I.
(F.C.T.D.,
no. A-1539-92), Gibson, June
20, 1995
- Wang, Kong Ping v. M.C.I.
(F.C.T.D.,
no. IMM-6298-99), Pelletier,
November 14, 2001; 2001 FCT
1237
- Yamba: M.C.I.
v. Yamba, Yamba Odette Wa
(F.C.A.,
no. A-686-98), Isaac, Robertson,
Sexton, April 6, 2000
- Yang, Hua v. M.C.I.
(F.C.T.D.,
no. IMM-380-00), Gibson,
November 24, 2000
- Yang, Yi Lan v. M.E.I.
(F.C.T.D.,
no. 93-A-135), Nadon, February 2,
1994
- Youssef, Sawsan El-Cheikh v.
M.C.I.
(F.C.T.D.,
no. IMM-990-98), Teitelbaum,
March 29, 1999
- Yusuf, Sofia Mohamed v.
M.E.I.
(F.C.A.,
no. A-130-92), Hugessen,
Strayer, Décary, January 9, 1995.Reported: Yusuf
v. Canada (Minister of Employment
and Immigration) (1995), 179 N.R.
11 (F.C.A.)
- Zdjelar, Damir v. M.C.I.
(F.C.T.D.,
no. IMM-5363-00), Gibson,
July 26, 2001.Reported: Zdjelar v.
Canada (Minister of Citizenship and Immigration), [2001] 4 F.C.
560 (T.D.)
- Zhu, Yong Qin v. M.C.I.
(F.C.T.D.,
no. IMM-5678-00), Dawson,
September 18, 2001; 2001 FCT
1026.Reported: Zhu v. Canada
(Minister of Citizenship and Immigration), [2002] 1 F.C.
379 (T.D.)
- Mileva v.
Canada (Minister of Employment and Immigration), [1991] 3 F.C.
398 (C.A.) at 404,
per Pratte J.A.Although this case concerned an initial (credible basis)
hearing (since abolished by Bill C-86, which amended the Immigration
Act), the principle is applicable to determinations by the Refugee
Protection Division.See also 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.).
- Yusuf, Sofia Mohamed v.
M.E.I.
(F.C.A.,
no. A-130-92), Hugessen,
Strayer, Décary, January 9, 1995.Reported: Yusuf
v. Canada (Minister of Employment
and Immigration) (1995), 179 N.R.
11 (F.C.A.),
at 1-2 (unreported); at 12 (reported). Leave to appeal to the S.C.C.
denied June 22, 1995.
- Adjei v.
Canada (Minister of Employment and Immigration), [1989] 2 F.C.
680 (C.A.).
- In Stoyanov, Gueorgui Ivanov v.
M.E.I.
(F.C.A.,
no. A-206-91), Hugessen,
Mahoney, Décary, April 26, 1993, at 2, Mr. Justisce
Hugessen, speaking for the Court, stated: "
when the [Refugee]
Division has a refugee claim before it, it must apply the test stated
by this Court in Adjei, and not
the test (assuming that
it is different) that would apply to an application for loss of status
("cessation") made by the Minister under s. 69.2."
Some decisions of the Trial Division, in the context of the debate on
the "Hathaway test", have taken the position that there may be a different
(i.e.,
higher) standard of proof that is applied at a cessation hearing under
section 69.2 of the Immigration Act, e.g.,
Villalta, Jairo Francisco Hidalgo v.
S.G.C. (F.C.T.D.,
no. A-1091-92), Reed, October 8,
1993; Magana, Douglas Ivan Ayala v.
M.E.I.
(F.C.T.D.,
no. A-1670-92), Rothstein,
November 10, 1993.Reported: Magana v.
Canada (Minister of Employment and Immigration) (1993), 22 Imm.
L.R. (2d) 300 (F.C.T.D.).See,
however, Youssef, Sawsan El-Cheikh v.
M.C.I.
(F.C.T.D.,
no. IMM-990-98), Teitelbaum,
March 29, 1999, which actually involved a cessation application, for
a different view.See also M.C.I.
v. Serhan, Jaafar (F.C.T.D.,
no. IMM-539-00), Dawson,
September 19, 2001; 2001 FCT
1029, which held that the correct test on applications for cessation
is whether changes occurred which rendered the previously established
fear of persecution to be unfounded.Cessation of status (refugee protection)
is now governed by section 108 of the Immigration and Refugee Protection
Act, the provisions of which are essentially the same as those
found in the former Immigration Act.
- See James C. Hathaway, The Law of Refugee
Status (Toronto: Butterworths, 1991), pages 200-203.When discussing
the cessation clause, which has been incorporated into section 108(1)(e)
of the Immigration and Refugee Protection Act and was previously
found in section 2(2)(e) of the Immigration Act, Professor
Hathaway stated that the changes must be shown to be of (1) substantial
political significance, (2) truly effective, and (3) durable. This is
the so-called three-prong "Hathaway test" referred to in the jurisprudence.
- Yusuf, supra, footnote 2, at
1-2 (unreported); at 12 (reported). There is, however, dicta in an earlier
decision of the Court of Appeal that is potentially problematic. In
Ahmed, Ali v. M.E.I.
(F.C.A.,
no. A-89-92), Marceau, Desjardins,
Décary, July 14, 1993.Reported: Ahmed v.
Canada (Minister of Employment and Immigration) (1993), 156 N.R.
221 (F.C.A.),
at 223-224, Marceau J.A. stated, (in relation to the CRDD's
finding that with the change in government in Bangladesh, the claimant's
fear was no longer well founded), that this ground does not entail "a
mere finding of fact drawn directly from the evidence
the evidence
has to be interpreted and inferences must be drawn from it in relation
to legal concepts and provisions of law.
the mere fact that there
has been a change of government is clearly not in itself sufficient
to meet the requirements of a change of circumstances which have rendered
the genuine fear of a claimant unreasonable and hence without foundation."
Ahmed can be reconciled with Yusuf if one bears in
mind that in Ahmed, the Court was relating the change to the
objective basis of the claim (i.e.,
the Adjei test).Hence the view expressed in Oduro, Ebenezer
v. M.E.I.
(F.C.T.D.,
no. IMM-903-93), McKeown,
December 24, 1993, at 3, that the Federal Court (in Ahmed
) "has determined that the determination of change in circumstances
is a mixed question of fact and law."
- Rahman, Sheikh Mohammed Mostafizur v.
M.E.I.
(F.C.A.,
no. A-398-92), Hugessen,
Létourneau, Robertson, March 3, 1995, at 1.
- Villalta, supra, footnote 4,
at 7. The Court went on to hold that the Board need not engage in "the
conceptual exercise of subtracting changed country conditions from their
analysis, and then, after making that analysis, move on to assess the
significance of changed country conditions." See also Barreto, Hugo
Cesar Ghan v. M.C.I.
(F.C.T.D.,
no. IMM-3987-94), Wetston,
June 7, 1995, where the Court states at 9: "When the Board discusses
change in country conditions, it does so as part of its determination
of whether the [claimants'] fear was objectively well founded. In this
regard, a change in country conditions is one factor, among others,
which the Board is entitled to consider in its determination."
- Singh, Sukhraj v.
M.C.I.
(F.C.T.D.,
no. IMM-2803-95), Lutfy,
January 10, 1997.See also Sanoe, Sekou v.
M.C.I.
(F.C.T.D.,
no. IMM-5047-98), Lemieux,
September 16, 1999, to the same effect.
- Gill, Jagdip v.
M.C.I.
(F.C.T.D.,
no. IMM-448-97), Lutfy, December 31,
1997.
- Barreto, supra, footnote 8, at 7-9.
- Kaur, Sarabjit v.
M.E.I.
(F.C.T.D.,
no. IMM-5701-93), Reed, August 19,
1994, at 2; Alza, Julian Ulises v.
M.C.I.
(F.C.T.D.,
no. IMM-3657-94), MacKay,
March 26, 1996; Hernandez, Fabian Edward v.
M.C.I.
(F.C.T.D.,
no. IMM-2410-95), Jerome,
May 10, 1996.
- Penate v.
Canada (Minister of Employment and Immigration), [1994] 2 F.C.
79 (T.D.), at 95.As
noted in Osei, Penate was decided before Yusuf (F.C.A.),
and must be read in light of Madam Justice Reed's comments in Osei,
Paul Kofi v. S.S.C.
(F.C.T.D.,
no. IMM-4893-93), Reed, June
13, 1997, where she stated that the Yusuf approach does not
require the CRDD
to engage in an analysis of the three elements listed in Hathaway's
test and reach a conclusion with respect to each of them.Rather the
CRDD
need only assess whether the changes, as a matter of fact, led to a
conclusion than an objective basis to the claim no longer existed.See
also in this regard Ayankojo, Isaac Olymuyiwa Olaoluwa v.
M.C.I.
(F.C.T.D.,
no. 3877-99), Reed, June
8, 2000.Along the same lines, in Nallbani, Ilir v.
M.C.I.
(F.C.T.D.,
no. IMM-5935-98), MacKay,
June 25, 1999, the Court stated: "I am not persuaded that the panel
had to expressly find the change of circumstances was effective and
lasting, rather it was sufficient to find, as it did, that the
claim was not established prospectively in light of the change in circumstances."
For a different focus see Vodopianov, Victor v.
M.E.I.
(F.C.T.D.,
no. A-1539-92), Gibson, June
20, 199, infra, footnote16.
- Ahmed, supra, footnote 6, at
224, per Marceau J.A.
- Cuadra, Walter Antonio v.
S.G.C. (F.C.A.,
no. A-179-92), Isaac, Marceau,
Linden, July 20, 1993.Reported: Cuadra v.
Canada (Solicitor General) (1993), 157 N.R.
390 (F.C.A.),
at 392, per Marceau J.A.
- Vodopianov, supra, footnote 13.See also
Kazi, Feroz Adeel v. M.C.I.
(F.C.T.D.,
no. IMM-850-97), Pinard,
August 15, 1997.Reported: Kazi v.
Canada (Minister of Citizenship and Immigration) (1997), 40 Imm.
L.R. (2d) 193 (F.C.T.D.),
where the Court stated that the key consideration is whether the changes
in the political situation are effective and durable, as opposed to
merely transitory, and what, if any bearing, these changes have on the
claimant's specific situation. In Zdjelar, Damir v.
M.C.I.
(F.C.T.D.,
no. IMM-5363-00), Gibson,
July 26, 2001.Reported: Zdjelar v.
Canada (Minister of Citizenship and Immigration), [2001] 4 F.C.
560 (T.D.), the
Court found that the CRDD
did not engage in an effective weighing of the evidence for and against
changed country conditions in relation to the Hathaway criteria.
- Youssef, supra, footnote 4.
- In Rahman, Faizur v.
M.E.I.
(F.C.A.,
no. A-1244-91), Marceau,
Desjardins, Létourneau, May 14, 1993, at 3, the ouster of
President Ershad (in Bangladesh) followed by the electoral victory of
the claimant's party, in the view of Marceau J.A., "may, in themselves,
recent though they have been, amount to a sufficient change of circumstances,
given the basis of the fear on which the [claimant] relied." However,
in Ahmed, supra, footnote 6, at 224, Marceau J.A.
cautioned that "the mere declarations of the new four-month old government
that it favoured the establishment of law and order can hardly be seen,
when the root of the [claimant's] fear and the past record of the new
government with respect to human rights violations are considered, as
a clear indication of the meaningful and effective change which is required
to expunge the objective foundation of the
claim." On the other
hand, when dealing with changes of longer duration, in Ofori, Beatrice
v. M.E.I.
(F.C.T.D.,
no. IMM-3312-94), Gibson,
March 14, 1995, the Court stated at 4: "Durability does not equate
with permanence.
the concept of meaningful and effective change
implies an element of durability, not in an absolute sense but in a
comparative sense
" The Court came to a similar conclusion in
Castellanos, Julio Alfredo Vaquerano v.
M.C.I.
(F.C.T.D.,
no. IMM-2082-94), Gibson,
October 18, 1994.Reported: Castellanos v.
Canada (Minister of Citizenship and Immigration) (1994), 30 Imm.
L.R. (2d) 77 (F.C.T.D.),
where Gibson J. stated at 80: "
I know of no decision of this
court that has adopted the position that changes must be: '
durable
in the sense that there is no possible chance of a reversal in the future.'"
Moreover, after conceding that "the situation was not perfect and that
some unrest continued," the Court in Belozerova, Natalia v.
M.C.I.
(F.C.T.D.,
no. IMM-912-94), Simpson,
May 25, 1995, stated at 4: "No one can predict the future and there
is no doubt that, in situations charged with ethnic rivalry, there will
always be some uncertainty."
- In Abarajithan, Paramsothy v.
M.E.I.
(F.C.A.,
no. A-805-90), Stone, MacGuigan,
Linden, January 28, 1992, the CRDD
was found to have relied incorrectly on tentative changes in Sri Lanka
(cooperation between the Tigers and the Sri Lankan Army). In Magana,
supra, footnote 4, at 303-304, the Court categorized the articles
published before or at the time of the three-month-old peace accord
in El Salvador as "preliminary, tentative indications of the effect
of the changes
especially in light of contrary evidence
that the peace process was in danger and death squad activity continued."
In Agyakwah, Elizabeth Lorna v.
M.E.I.
(F.C.T.D.,
no. A-7-93), McKeown, December 10,
1993, the CRDD
was found to have erred in relying on the lifting of the ban on political
parties just two days prior to the hearing where no change of government
had occurred and the poor human rights record of the Ghanaian government
was longstanding. In Antonio, Neto Xavier v.
M.C.I.
(F.C.T.D.,
no. A-472-92), Noël,
January 27, 1995, the CRDD
erroneously relied on tentative changes in Angola: the peace accord
was only a few days old; the same regime was in power; elections were
supposed to take place in 18 months; a previous accord had failed; the
accord contained no guarantee for former enemies of the regime. In Chaudary,
Imran Akram v. M.C.I.
(F.C.T.D.,
no. IMM-2048-94), Reed, May 4,
1995, the Court held, at 4, that the statement that "a greater possibility
of stability" than existed previously did not carry "sufficient weight
to counterbalance a finding that an objective basis would otherwise
exist." In Quaye, Sarah Adjoa v.
M.C.I.
(F.C.T.D.,
no. IMM-3999-00), Tremblay-Lamer,
May 23, 2001; 2001 FCT
518, the Court noted that "cultural and traditional normes [sic] do
not change overnight," and that "the mere enactment of new laws" may
not be in itself sufficient to remove the objective basis of the claim.
- Rahman, Faizur, supra,
footnote 18, at 2, per Marceau J.A.: "Whether a change of circumstances
is sufficient for a fear of persecution to be no longer well-founded
must naturally be determined in relation to the basis of and reasons
for the fear relied on." See also Boateng, Joseph Kwaku v.
M.E.I.
(F.C.T.D.,
no. 92-A-6560), Noël,
May 4, 1993, at 3.
- Ahmed, supra, footnote 6, at
224, per Marceau J.A.
- Kifoueti, Didier Borrone Bitemo v.
M.C.I.
(F.C.T.D.,
no. IMM-937-98), Tremblay-Lamer,
February 11, 1999. In this case, as in Vodopianov, supra, footnote
13, the changes were so recent that there was no evidence to indicate
how the new regime would behave.
- Mohamed, Mohamed Yasin v.
M.E.I.
(F.C.T.D.,
no. A-1517-92), Denault,
December 16, 1993, at 4.
- Chowdhury, Mashiul Haq v.
M.E.I.
(F.C.T.D.,
no. 92-A-6565), Noël,
June 2, 1993; Emnet, Angeset Woldmichael v.
M.E.I.
(F.C.T.D.,
no. 93-A-182), MacKay, August 27,
1993; Bhuiyan, Nazrul Islam v.
M.E.I.
(F.C.T.D.,
no. 92-A-6737), MacKay, September 13,
1993; Munkoh, Frank v. M.E.I.
(F.C.T.D.,
no. IMM-4056-93), Gibson,
June 3, 1994; Ventura, Simon Alberto v.
M.E.I.
(IMM-6061-93), Cullen, October 5, 1994; Hanfi, Aden Abdullah
v. M.E.I.
(F.C.T.D.,
no. A-610-92), Gibson, March 31,
1995. In Alam, Mohammed Mahfuz v.
M.C.I.
(F.C.T.D.,
no. IMM-4883-97), McGillis,
October 7, 1998, the Court held that the CRDD
failed to consider the specific evidence that the claimant's problems
with the police and with goons of the BNP continued after the election
of the Awami League.
- Doganian, Rafi Charvarch v.
M.E.I.
(F.C.A.,
no. A-807-91), Hugessen,
MacGuigan, Décary, April 26, 1993; Boateng. In
Moz, Saul Mejia v. M.E.I.
(F.C.T.D.,
no. A-54-93), Rothstein,
November 12, 1993.Reported: Moz v.
Canada (Minister of Employment and Immigration) (1993), 23 Imm.
L.R. (2d) 67 (F.C.T.D.),
the claim was referred back to the CRDD
to obtain evidence relating to the treatment of army deserters in El
Salvador. In Ansar, Iqbal v.
M.C.I.
(F.C.T.D.,
no. IMM-4124-97), Campbell,
July 22, 1998, the Court held that there was no evidence tendered
to support the finding that, because the claimant was a member of the
party newly brought to power, he would by that fact alone receive state
protection.See also Vodopianov, supra, footnote 13, and Kifoueti,
supra, footnote 22.
- El-Bahisi, Abdelhady v.
M.E.I.
(F.C.T.D.,
no. A-1209-92), Denault,
January 4, 1994; Islas, Alfonso Godinez v.
M.C.I.
(F.C.T.D.,
no. IMM-647-94), Wetston,
December 2, 1994; Herrera, Rosa Adela Barrera v.
M.C.I.
(F.C.T.D.,
no. A-1055-92), MacKay,
March 29, 1995.
- Hernandez, Alvaro Odilio Valladares v.
M.E.I.
(F.C.A.,
no. A-210-90), Stone, Linden,
McDonald, July 7, 1993.
- See rule 37 of the Refugee Protection Division
Rules and the Commentary to that rule
- M.E.I.
v. Salinas, Marisol Escobar
(F.C.A.,
no. A-1323-91), Stone, MacGuigan,
Henry, June 22, 1992.Reported: Canada (Minister of Employment
and Immigration) v. Salinas
(1992), 17 Imm.
L.R. (2d) 118 (F.C.A.).
See also the Commentary to rule 37 of the Refugee Protection
Division Rules.
- Canada (Minister of Employment and Immigration)
v. Obstoj, [1992] 2 F.C.
739 (C.A.), at
746.
- Although section 2(3) of the Immigration
Act is framed as an exception to section 2(2)(e), there
was no requirement for a formal determination of cessation of status
in the context of a hearing under section 69.1 (as would be required
in the context of a hearing under section 69.2 of that Act).
- Cortez, Delmy Isabel v.
S.S.C.
(F.C.T.D.,
no. IMM-2482-93), McKeown,
December 15, 1993, at 2.
- There is some case law that gives rise to confusion
on this point (pre-Cihal, infra, footnote 34). For example,
in Chavez-Menendez, Franklin v.
M.E.I.
(F.C.T.D.,
no. IMM-170-93), Gibson,
June 16, 1994, the Court, citing Hassan, Noor v.
M.E.I.
(F.C.A.,
no. A-831-90), Isaac, Heald,
Mahoney, October 22, 1992.Reported: Hassan v.
Canada (Minister of Employment and Immigration) (1992), 147 N.R.
317 (F.C.A.),
held that the CRDD
does not need to apply section 2(2) and 2(3) unless the claimant first
falls within the Convention refugee definition in section 2(1).However,
there is clear jurisprudence from the Federal Court that in order for
the "compelling reasons" exception to apply one does not have
to show a subsisting well-founded fear of persecution, e.g.,
Obstoj, supra, footnote 30, at 748, per Hugessen J.A.
("even though they may no longer have any reason to fear further persecution").
This interpretation was followed in Hassan, Nimo Ali v.
M.E.I.
(F.C.T.D.,
no. A-653-92), Rothstein,
May 4, 1994; and Shahid, Iqbal v.
M.C.I.
(F.C.T.D.,
no. IMM-6907-93), Noël,
February 15, 1995.Reported: Shahid v.
Canada (Minister of Citizenship and Immigration) (1995), 28 Imm.
L.R. (2d) 130 (F.C.T.D.).On
the other hand, in Singh, Gurmeet v.
M.C.I.
(F.C.T.D.,
no. IMM-75-95), Richard,
July 4, 1995.Reported: Singh, (Gurmeet) v.
Canada (Minister of Citizenship and Immigration) (1995), 30 Imm.
L.R. (2d) 226 (F.C.T.D.),
at 230, the Court referred to the fact that the claimant "might at
one time have been a Convention refugee" (emphasis added) and seemed
to consider circumstances preceding the claimant's departure as relevant
to this issue.
- Cihal, Pavla v.
M.C.I.
(F.C.A.,
no. A-54-97), Stone, Evans,
Malone, May 4, 2000.See also M.C.I.
v. Dolamore, Jessica Robyn
(F.C.T.D.,
no. IMM-4580-00), Blais,
May 1, 2001; 2001 FCT
421, where the Court held that the CRDD
erred in not examining the issue of state protection regarding the claimant's
objective fear before considering whether there was a change of circumstances
(and compelling reasons).In Adjibi, Marcelle v.
M.C.I.
(F.C.T.D.,
no. IMM-2580-01), Dawson,
May 8, 2002; 2002 FCT
525, the Court held that the CRDD
erred in not considering whether section 2(3) of the Immigration
Act applied to the minors' claims, since the principal claimant
had been found to be persecuted and the claims of all of the claimants
were dismissed on the basis of changed country conditions.
- Moore, Clara v.
M.C.I.
(F.C.T.D.,
no. IMM-682-00), Heneghan,
October 27, 2000.
- Corrales, Maria Cecilia Abarca v.
M.C.I.
(F.C.T.D.,
no. IMM-4788-96), Reed, October 3,
1997.See also Diamanama, Nsimba v.
M.C.I.
(F.C.T.D.,
no. IMM-2288-97), Richard,
June 23, 1998.
- Ortiz, Ligia Ines Arias v.
M.C.I.
(F.C.T.D.,
no. IMM-4416-01), Pinard,
November 13, 2002; 2002 FCT
1163. In that case, the CRDD
determined that the claimant had not established that she was in fact
at risk from her former employer.
- Gyamfuah, Cecilia v.
M.E.I.
(F.C.T.D.,
no. IMM-3168-93), Simpson,
June 3, 1994.Reported: Gyamfuah v.
Canada (Minister of Employment and Immigration) (1994), 25 Imm.
L.R. (2d) 89 (F.C.T.D.),
at 94.
- Manefo, Sidonie Lorince Donkeng v.
M.C.I.
(F.C.T.D.,
no. IMM-3696-00), Teitelbaum,
May 29, 2001; 2001 FCT
538.
- Singh, (Gurmeet), supra, footnote 33,
at 230.See also Sangha, Karamjit Singh v.
M.C.I.
(F.C.T.D.,
no. IMM-1555-98), Reed, September 8,
1998.
- In Rabbani, Sayed Moheyudee v.
M.C.I.
(F.C.T.D.,
no. IMM-236-96), Noël,
January 16, 1997, the Court held that the CRDD
had erred, for among other reasons, because its finding that the claimant
had an IFA
in Afghanistan was inconsistent with its implied finding that there
must have been a fear of persecution throughout the country prior to
the change of circumstances.
- Guzman, Jesus Ruby Hernandez v.
M.C.I.
(F.C.T.D.,
no. IMM-3748-97), Rothstein,
October 29, 1998.
- M.C.I.
v. Yamba, Yamba Odette Wa
(F.C.A.,
no. A-686-98), Isaac, Robertson,
Sexton, April 6, 2000.
- Adjibi, supra, footnote 34.
- Shahid, supra, footnote 33.
- Obstoj, supra, footnote 30,
at 748.
- This caution was repeated in subsequent decisions
of the Federal Court, e.g.,
Cortez, supra, footnote 32, at 2 ("in unusual circumstances");
Yusuf, supra, footnote 2, at 1-2 ("that very rare
class of persons to whom this exceptional provision applies").
- In Hassan, Nimo Ali, supra,
footnote 33, at 5-6, the Trial Division stated:
While many refugee claimants might consider the persecution
they have suffered to fit within the scope of subsection 2(3) [of
the Immigration Act] it must be remembered that the nature
of all persecution, by definition, involves death, physical harm or
other penalties.Subsection 2(3), as it has been interpreted, only
applies to extraordinary cases in which the persecution is relatively
so exceptional, that even in the wake of changed circumstances, it
would be wrong to return refugee claimants.
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.),
the claimant had suffered serious physical abuse and sexual abuse
while in detention for 45 days, and his relatives had been killed.
The CRDD
decision rejecting his claim was overturned. In Siddique, Ashadur
Rahman v. M.C.I.
(F.C.T.D.,
no. IMM-4838-93), Pinard,
July 18, 1994, the Court upheld the CRDD's
finding that the torture the claimant had endured during his 15-day
detention in Bangladesh in the early 1980's, albeit abhorrent, did
not constitute atrocious persecution. In Toah, Esther v.
S.S.C.
(F.C.T.D.,
no. IMM-3380-94), Gibson,
June 1, 1995, the Court upheld the CRDD's
finding that the claimant's detention, torture, beatings and sexual
assaults were not "sufficiently serious", "atrocious" or "appalling"
to warrant the application of section 2(3).See also similar findings
in Garcia, Rosa Elena Duran v.
M.C.I.
(F.C.T.D.,
no. IMM-2523-95), McKeown,
May 10, 1996, where the claimant had been abducted, beaten and
raped; and Nallbani, supra, footnote 13, where the claimant
had been detained on five occasions, beaten, tortured, deprived of
food and drink, and his life threatened. In Gicu, Andrei Marian
v. M.C.I.
(F.C.T.D.,
no. IMM-2140-98), Tremblay-Lamer,
March 5, 1999, the Court pointed out that the events reported by the
claimant (internment in a psychiatric hospital for a few months, two
periods of imprisonment and beatings during his stays in prison) did
not meet the test required by the case law in terms of the level of
atrocity.Moreover, given the claimant's adaptability and resourcefulness,
it was difficult to conclude he had suffered from a psychological
trauma so severe that he continued to be affected by it nearly ten
years after it had occurred. In Lawani, Mathew v.
M.C.I.
(F.C.T.D.,
no. IMM-1963-99), Haneghan,
June 26, 2000, the Court held that the CRDD
erred when, after accepting the claimant's evidence as credible, it
found that there was insufficient evidence that his treatment was
sufficiently appalling and atrocious. The claimant was brutally and
severely ill-treated by government agents while in detention, including
being hung upside down for long periods of time, being burnt with
hot irons and cigarette fire, being whipped on the back and being
made to expose his genitalia to the guards who inserted broom sticks
and needs into his penis. In Nwaozor, Justin Sunday v.
M.C.I.
(F.C.T.D.,
no. IMM-4501-00), Tremblay-Lamer,
May 23, 2001; 2001 FCT
517, the claimant's father was killed, though not in the claimant's
presence, and his brother shot by unknown persons; the claimant and
other family members had been beaten and harassed by the Nigerian
army on three occasions over a 6-month period. The Court upheld the
CRDD's
finding that this did not meet the high standard of "atrocious and
appalling".
- See Shahid, supra, footnote
33, at 138.
- Arguello-Garcia, supra, footnote 48,
at 288-289, per McKeown J.: "The Concise Oxford Dictionary of Current
English, Clarendon Press, Oxford, 1990, contains the following
definitions: "atrocious": 1 very bad or unpleasant
2 extremely
savage or wicked (atrocious cruelty). "Atrocity":1 an extremely wicked
or cruel act, esp. one involving physical violence or injury
"appalling": shocking, unpleasant; bad."
- Arguello-Garcia, supra, footnote 48,
at 289.See also Adaros-Serrano, Maria Macarena v.
M.E.I.
(F.C.T.D.,
no. 93-A-124), McKeown, September 31,
1993.Reported: Adaros-Serrano v.
Canada (Minister of Employment and Immigration) (1993), 22 Imm.
L.R. (2d) 31 (F.C.T.D.),
at 38, where the Court directed the CRDD
to consider (at the rehearing of the claim) the fact that the claimant
suffers from a post-traumatic stress disorder. In Hinson, Jane Magnanang
v. M.C.I.
(F.C.T.D.,
no. IMM-5034-94), Richard,
July 18, 1996, the Court stated at 5-6: "The criteria to be considered
are the psychological and emotional states of the claimant both at the
time of the persecution and at the present time as a result of the persecution."
It then directed the CRDD
to consider "the negative or psychological effects of past persecution
as well as present psychological and emotional suffering as a result
of past persecution."
- Igbalajobi, Buki v.
M.C.I.
(F.C.T.D.,
no. IMM-2230-00), McKeown,
April 18, 2001; 2001 FCT
348.
- Biakona, Leonie Bibomba v.
M.C.I.
(F.C.T.D.,
no. IMM-1706-98), Teitelbaum,
March 23, 1999.
- Kulla, Hasan v.
M.C.I.
(F.C.T.D.,
no. IMM-4707-99), MacKay,
August 24, 2000., Mr. Justisce
MacKay commented:
In this case, while I am persuaded that the panel's conclusion
is not adequately explained, having found the claimant's past experience
to be 'cruel and harsh' but not 'atrocious' and 'appalling', ultimately,
in my opinion the panel did not address the issue that was raised.
- Dini, Majlinda v.
M.C.I.
(F.C.T.D.,
no. IMM-3562-98), Reed, June
24, 1999.
- In Dini, Majlinda v.
M.C.I.
(F.C.T.D.,
no.IMM-2596-00), Gibson, March
22, 2001; 2001 FCT
217, the Court certified the following question:
In relation to a determination under s. 2(3)
of the Immigration Act, does a finding of "compelling reasons"
require a finding of"appalling" or "atrocious" past persecution?
- Elemah, Paul Omorogbe v.
M.C.I.
(F.C.T.D.,
no. IMM-2238-00), Rouleau,
July 10, 2001; 2001 FCT
779.
- Adjibi, supra, footnote 34.
- See Adaros-Serrano, supra,
footnote 51, which refers to post-traumatic stress disorder.
- Kulla, supra, footnote 54.
- Mandar, Kashmeer Singh v.
M.C.I.
(F.C.T.D.,
no. IM-3450-99), Campbell,
April 5, 2000.
- Igbalajobi, supra, footnote 52. In Hinson,
supra, footnote 51, the Court held that it was improper to draw
an adverse inference from the fact that the claimant delayed in obtaining
a medical report, especially when the report in question diagnosed post-traumatic
stress syndrome; nor does a delay in seeking psychological treatment
in such a case mean that there was no adverse psychological effect.
- Arguello-Garcia, supra, footnote
48.
- In Velasquez, Ana Getrudiz v.
M.E.I.
(F.C.T.D.,
no. IMM-990-93), Gibson,
March 31, 1994, the Court stated, in obiter, that a finding
of "compelling reasons" may be based on the persecution inflicted on
a family member (spouse).See also Yang, Yi Lan v.
M.E.I.
(F.C.T.D.,
no. 93-A-135), Nadon, February 2,
1994. In Bhardwaj, Shanti Parkash v.
M.C.I.
(F.C.T.D.,
no. IMM-240-98), Campbell,
July 27, 1998.Reported: Bhardwaj v.
Canada (Minister of Citizenship and Immigration) (1998), 45 Imm.
L.R. (2d) 192 (F.C.T.D.),
the CRDD
applied section 2(3) of the Immigration Act to the eldest daughter
of a family of claimants because she was profoundly affected by witnessing
the shooting of her mother, but denied the other claims, including the
mother's. The Court found that the CRDD
disregarded psychiatric evidence regarding the effect of the incident
on the mother.
- Shahid, supra, footnote 33,
at 138. This is so notwithstanding the following passage in paragraph
136 of the UNHCR
Handbook: "It is frequently recognized that a person who --
or whose family -- has suffered under atrocious forms of persecution
should not be expected to repatriate.Even though there may have been
a change of régime in his country, this may not always produce
a complete change in the attitude of the population, nor in view of
his past experiences, in the mind of the refugee."
- In Aragon, Luis Roberto v.
M.E.I.
(F.C.T.D.,
no. IMM-4632-93), Nadon,
August 12, 1994, the Court held that the CRDD
had not properly considered the circumstances surrounding the claimant's
return to El Salvador (namely, to see his mother). The torture he experienced
had also occurred during an earlier visit, but this too was held not
to be a bar to invoking section 2(3) of the Immigration Act.
- Adjibi, supra, footnote 34.
- Shahid, supra, footnote 33,
at 136 and 138.
- Mandar, supra 58. See also Kazi,
supra, footnote 16, upholding a CRDD
decision where the claimant did not provide evidence that he suffered
"continuing psychological after-effects of the previous persecution";
and Mongo, Parfait v. M.C.I.
(F.C.T.D.,
no. IMM-1005-98), May 6,
1999.
- Jiminez, Wilfredo v.
M.C.I.
(F.C.T.D.,
no. IMM-1718-98), Rouleau,
January 25, 1999.Relying on the evidence presented, the CRDD
had concluded that the claimant's psychological state at the time of
the hearing was premised on the severe brain injury he had suffered
in Canada and possibly on contributing factors such as alcohol and drugs,
and that, therefore, "there was insufficient evidence upon which to
base a finding that the [claimant's] experience of persecution in El
Salvador was so exceptional that it causes ongoing suffering of the
order experienced by the applicant in Arguello-Garcia." The
Court found that the CRDD
had erred in its approach and remitted the case back for a determination
of whether or not the claimant's experiences in El Salvador alone met
the exceptional circumstances envisioned by section 2(3) of the Immigration
Act.
- Chaudri, Tahir Ahmad Nawaz v.
M.E.I.
(F.C.A.,
no. A-1278-84), Thurlow,
Hugessen, McQuaid, June 5, 1986.Reported: Chaudri v.
Canada (Minister of Employment and Immigration) (1986), 69 N.R.
114 (F.C.A.);
Diallo, Abdou Salam v. M.C.I.
(F.C.T.D.,
no. A-1157-92), Noël,
June 8, 1995.
- Ghazizadeh, Reza v.
M.E.I.
(F.C.A.,
no. A-393-90), Hugessen,
MacGuigan, Décary, May 17, 1993.Reported: Ghazizadeh
v. Canada (Minister of Employment
and Immigration) (1993), 154 N.R.
236 (F.C.A.).
- Urur, Mohamed Ahmed v.
M.E.I.
(F.C.A.,
no. A-228-87), Pratte, Joyal,
Walsh, January 15, 1988; Chen, Kang v.
S.G.C. (F.C.T.D.,
no. A-1176-91), Gibson, August 6,
1993; Ali, Ismail Farah v.
M.E.I.
(F.C.T.D.,
no. A-1095-92), Noël,
November 2, 1993; Vasuthevan, Nagamany v.
M.E.I.
(F.C.T.D.,
no. IMM-887-93), Jerome,
March 23, 1994. In Cai, Heng Ye v.
M.C.I.
(F.C.T.D.,
no. IMM-1088-96), Teitelbaum,
May 16, 1997, the Court underscored the importance of considering the
claimant's activities both in the home country and abroad in combination.
In Biakona, [73] supra, footnote 53, however, the
Trial Division expressed the (unusual) view that "a refugee claimant
cannot use as a reason for his or her fear of returning to his or
her country of citizenship, the fact that while in Canada they were
very active politically and thus should not be returned to his or
her country of citizenship." On the other hand, in Manzila, Nicolas
v. M.C.I.
(F.C.T.D.,
no. IMM-4757-97), Hugessen,
September 22, 1998, as well as in other cases, the Court held that
the CRDD
is required to consider the claimant's activities abroad even when
it disbelieves the account of experiences in the home country.
- See Vafaei, Farah Angiz v.
M.E.I.
(F.C.T.D.,
no. IMM-1276-93), Nadon,
February 2, 1994, which referred specifically to paragraph 96 of
the UNHCR
Handbook.See also André, Marie-Kettelie v.
M.E.I.
(F.C.T.D.,
no. A-1444-92), Dubé,
October 24, 1994, where the CRDD
found that the claimant's participation in a large pro-Aristide demonstration
in Montreal was not likely to cause her problems in Haiti.
- Wang, Kong Ping v.
M.C.I.
(F.C.T.D.,
no. IMM-6298-99), Pelletier,
November 14, 2001; 2001 FCT
1237.
- Zhu, Yong Qin v.
M.C.I.
(F.C.T.D.,
no. IMM-5678-00), Dawson,
September 18, 2001; 2001 FCT
1026.Reported: Zhu v. Canada
(Minister of Citizenship and Immigration), [2002] 1 F.C.
379 (T.D.). The
claimant, who arrived on a Korean vessel, had informed the RCMP
about individuals later charged in Canada with offences relating to
human smuggling and was subpoenaed to testify at their trial.He feared
that if he returns to China he would be severely punished by the Chinese
authorities and that the "snakeheads" in China seriously harm him, if
not kill him.
- See Said, Mohamed Ahmed v.
M.E.I.
(F.C.T.D.,
no. 90-T-638), Teitelbaum,
May 1, 1990, where the claimant continued to demonstrate against
the Kenyan government after he had been ordered excluded from Canada;
and Herrera, Juan Blas Perez de Corcho v.
M.E.I.
(F.C.T.D.,
no. A-615-92), Noël,
October 19, 1993, where the claimant spoke out against the Cuban
regime after claiming refugee status in Canada.
- Ngongo, Ndjadi Denis v.
M.C.I.
(F.C.T.D.,
no. IMM-6717-98), October
25, 1999.
- Hathaway, The Law of Refugee Status,
page 39.
- Asfaw, Napoleon v.
M.C.I.
(F.C.T.D.,
no. IMM-5552-99), Hugessen,
July 18, 2000.
- Moradi, Ahmad v.
M.C.I.
(F.C.T.D.,
no. IMM-2317-97), MacKay,
September 23, 1998.
- Maina, Ali Adji v.
M.C.I.
(F.C.T.D.,
no. IMM-1221-99), Gibson,
March 14, 2000; Yang, Hua v.
M.C.I.
(F.C.T.D.,
no. IMM-380-00), Gibson,
November 24, 2000.
- Ghazizadeh, supra, footnote
72, at 1-2 (unreported).
- Tang, Xiaoming v.
M.C.I.
(F.C.T.D.,
no. IMM-3650-99), Reed, June
21, 2000.
- Makala, François v.
M.C.I.
(F.C.T.D.,
no. IMM-300-98), Teitelbaum,
July 17, 1998.Reported: Makala v.
Canada (Minister of Citizenship and Immigration) (1998), 45 Imm.
L.R. (2d) 251 (F.C.T.D.).
- Nthoubanza, Arthur Jholy v.
M.C.I.
(F.C.T.D.,
no. IMM-207-98), Denault,
December 17, 1998.
- In M.C.I.
v. Asaolu, Daniel Oluwafemi
(F.C.T.D.,
no. IMM-237-98), Campbell,
July 31, 1998. Reported: Canada (Minister of Citizenship and
Immigration) v. Asaolu (1998),
45 Imm.
L.R. (2d) 190 (F.C.T.D.),Canadian
immigration authorities sent the claimant's story and photograph to
a Canadian visa officer in Nigeria to facilitate an investigation of
his claim of persecution. The Court considered paragraphs 94-96 of the
UNHCR
Handbook. In Mutamba, Phydellis v.
M.C.I.
(F.C.T.D.,
no. IMM-2868-98), Pinard,
April 15, 1999, Canadian authorities in Nairobi and Harare made inquiries
of the Zimbabwean government with respect to the claimant's passport
application.
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