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CHAPTER 9
9. PARTICULAR SITUATIONS
9.1. INTRODUCTION
This Chapter explores situations where
more than one element of the Convention refugee definition is involved.At
issue is not only whether what the claimant faces is persecution, but
also, whether there is a nexus to one of the Convention refugee grounds.
The situations can be complex and difficult to analyze: the key is to
identify what requirements are imposed by each element and to discern
which circumstances in the situation go to which element.
9.2. Civil War or Other Prevalent Conflict
The core of the case law in this area
consists of two decisions from the Court of Appeal. The first of these
is Salibian,1
which sets out four general principles:2
It can be said in light of earlier decisions by this Court on
claims to Convention refugee status that
(1) the applicant does not have to show that he had himself
been persecuted or would himself be persecuted in the future;3
(2) the applicant can show that the fear he had resulted not
from reprehensible acts committed or likely to be committed directly against
him but from reprehensible acts committed or likely to be committed against
members of a group to which he belonged;
(3) a situation of civil war in a given country is not an obstacle
to a claim provided the fear felt is not that felt indiscriminately by
all citizens as a consequence of the civil war, but that felt by the applicant
himself, by a group with which he is associated, or, even, by all citizens
on account of a risk of persecution based on one of the reasons stated
in the definition; and
(4) the fear felt is that of a reasonable possibility that the
applicant will be persecuted if he returns to his country of origin
.
The Court goes on to adopt the following
description of the applicable law (provided by Professor Hathaway):4
In sum, while modern refugee law is concerned to recognize the
protection needs of particular claimants, the best evidence that an individual
faces a serious chance of persecution is usually the treatment afforded
similarly situated persons in the country of origin. In the context of
claims derived from situations of generalized oppression, therefore, the
issue is not whether the claimant is more at risk than anyone else in
her country, but rather whether the broadly based harassment or abuse
is sufficiently serious to substantiate a claim to refugee status.If persons
like the applicant may face serious harm for which the state is accountable,
and if that risk is grounded in their civil or political status, then
she is properly considered to be a Convention refugee.
The second of the leading precedents
is the very brief decision in Rizkallah,5
where the Court of Appeal said:
To succeed, refugee claimants must establish a link between
themselves and persecution for a Convention reason. In other words, they
must be targeted for persecution in some way, either personally or collectively.
the evidence, as presented to us, falls short of establishing
that Christians in the claimant's Lebanese village were collectively targeted
in some way different from the general victims of the tragic and many-sided
civil war.6
Since Salibian and Rizkallah,
there have been several additional Federal Court rulings in cases involving
civil war.Most of these subsequent decisions have emanated from the Trial
Division; a number have cited, and purported to apply, Salibian
and/or Rizkallah; none has taken issue with Salibian
or Rizkallah.Neither expressly nor by implication do these later
cases yield much in the way of additional, clear principles.
One further principle which has emerged
is that a claimant's membership in one of the two groups involved in a
two-sided conflict does not by itself establish that the claimant is a
Convention refugee.7
9.2.1. Two Approaches:Comparative and Non-Comparative8
9.2.1.1. Background
The case law seems to suggest that,
in considering whether there is a nexus between the harm feared and a
Convention ground, the judges are taking two different approaches to civil
war claims and to the application of Salibian and Rizkallah.
It will be noted that in Rizkallah,
the claim was seen as deficient because those constituting the claimant's
group were not "collectively targeted in some way different from the general
victims of the
civil war."Furthermore, Salibiancontains
the proviso that, in order for a claim to succeed, the claimant's fear
must not be "that felt indiscriminately by all citizens as a consequence
of the civil war". In some cases where these or similar phrases have been
invoked,9
it appears that the Trial Division has seen this language as authority
for adopting a comparative approach, which involves comparing the claimant's
predicament with the circumstances of other persons in the same country,
and requiring that the claimant's predicament be worse than the predicaments
of other people.10
In other cases, the Court of Appeal
and the Trial Division have taken the position that a claimant who belongs
to a group11
which is at risk of attack by some second group may qualify as a Convention
refugee - and, in particular, has the requisite nexus - even if persons
other than the claimant and groups other than the claimant's group are
also at risk of attack by the same or different attackers.
There have also been cases in which
the evidence was simply inadequate to make out a claim, regardless of
which approach might have been used.12
And there have been cases in which the Court relied on the fact that the
specific claimant possessed particular risk factors, might have been personally
targeted, and might have faced a particularly elevated level of risk.13
It must also be acknowledged that, where several cases are concerned,
it is not really possible to say with certainty what was the basis of
the Court's disposition, which elements of the Refugee Division's analysis
the Court endorsed or rejected, and what propositions may properly be
inferred from the Court's disposition.14
According to the non-comparative approach,15
a claim which arises in a context of widespread violence must meet the
same conditions as any other claim. The content of those conditions is
no different for such a claim, nor is the claim subject to extra requirements
or disqualifications. Thus, under this approach, the Refugee Protection
Division would consider:
- Serious harm: whether the treatment that the claimant anticipates
would amount to serious harm. The question is whether the harm which
this particular claimant might experience is serious, not whether the
claimant is at risk of harm greater than that to which some other group,
or some other person in the claimant's own group, might be subjected.
- Risk of harm: whether there is a reasonable chance that the claimant
would experience the apprehended harm. The issue is not whether this
particular claimant carries a degree of risk greater than that which
attaches to some other person or group.
- Nexus:16
whether there is a nexus between the anticipated inflicting of harm
upon the claimant and one of the Convention grounds.17
It is a matter of identifying the particular source(s) or perpetrator(s)
who might inflict harm upon this particular claimant, and determining
whether that perpetrator's reason for inflicting harm would tally with
one of the grounds.18
The claimant is not to be disqualified because other persons in the
claimant's group or in different groups might also be targeted for similar
reasons.Nor is a non-combatant claimant to be fixed with some sort of
"collective guilt" because combatant members of the claimant's group
are inflicting harm on members of other groups.
A requirement that the claimant be in
a predicament which is worse than the circumstances of fellow nationals
may be difficult to reconcile with certain passages in Salibianand
Rizkallah and with the terms of the Convention refugee definition.Such
a requirement seems to have little if any support in post-Rizkallah
decisions from the Court of Appeal, and may be at odds with those decisions.
The passages in Salibian and Rizkallah which have sometimes
been referred to when engaging in a hardship comparison contain a measure
of vagueness; certainly they are not substitutes for an element-by-element
analysis of a claim, nor do they negate Salibian's assertion
that a claimant is not barred from succeeding because his or her problems
have arisen in the context of a civil war.19
9.2.1.2. The Non-Comparative Approach is the
Legal and Preferred Test
In Ali, Shaysta-Ameer,20
the Court of Appeal affirmed that the proper test for persecution in a
civil war context is the non-comparative approach set out in the Salibian
and Rizkallah cases and advocated in the Chairperson's Guidelines,
Civilian Non-Combatants Fearing Persecution in Civil War Situations.21
The Court cited, with approval, the following passages from the Guidelines:
Non-comparative Approach
The non-comparative approach to the assessment of a claim is
the approach advocated in these Guidelines. This approach is more in accord
with the third principle set out in Salibian, the decisions of
the Court of Appeal in Rizkallah and Hersi, Nur
Dirie, as well as the wording of the Convention refugee definition.With
this approach, instead of an emphasis on comparing the level of risk of
persecution between the claimant and other individuals (including individuals
in the claimant's own group) or other groups, the Court examines the claimant's
particular situation, and that of her group, in a manner similar to any
other claim for Convention refugee status.
The issue is not a comparison between the claimant's risk and
the risk faced by other individuals or groups at risk for a Convention
reason, but whether the claimant's risk is a risk of sufficiently serious
harm and is linked to a Convention reason as opposed to the general, indiscriminate
consequences of civil war. A claimant should not be labelled as a "general
victim" of civil war without full analysis of her personal circumstances
and that of any group to which she may belong.Using a non-comparative
approach results in a focusing of attention on whether the claimant's
fear of persecution is by reason of a Convention ground. (footnotes omitted)
9.3. Prosecution, or Persecution for a Convention
Reason?
9.3.1. Limits to Acceptable Legislation and
Enforcement
Any state is entitled to have, and to
enact, laws which will contribute to the better, safer, more just functioning
of the national community and its government. And any state is entitled
to impose penalties upon those who break its laws.However, from the standpoint
of international human rights law, there is a line over which the state
cannot legitimately step.To determine whether the state has limited itself
to its proper sphere or has overstepped, the Refugee Protection Division
must be mindful of the distinction between two kinds of cases: (a) cases
in which the treatment foreseen for the claimant would be punishment for
nothing other than the breach of a law that does not violate human rights,
and does not adversely differentiate on a Convention ground, either on
its face or in its application; and (b) cases in which the claimant's
actions might contravene a law of his homeland, but in which the law's
terms or its anticipated enforcement might infringe upon human rights
and adversely differentiate.
9.3.2. Laws of General Application
The Federal Court has dealt at some
length with questions relating to "laws of general application". This
term refers to a law which, on its face, applies to a country's entire
population, without differentiation; and the term is not properly employed
if the law in question targets only some subset of the population24
the Court of Appeal examined the theme in greater depth and provided interpretation
of Musial. Therefore, Zolfagharkhanimust now be regarded
as pre-eminent. Musialshould be used with caution, and only after
taking Zolfagharkhaniinto account.
In Zolfagharkhani, the Court
rejected the proposition that, so long as the action taken by a government
against a claimant is the enforcement of "an ordinary law of general application",
the government is necessarily engaging in prosecution and not persecution.25
In a dictatorial or totalitarian state, any ordinary law of general application
may well be an act of political oppression.26
The Court of Appeal in Zolfagharkhani
27
set forth "some general propositions relating to the status of an ordinary
law of general application in determining the question of persecution":
(1) The statutory definition of Convention refugee makes the
intent (or any principal effect)28
of an ordinary law of general application, rather than the motivation
of the claimant, relevant to the existence of persecution.29
(2) But the neutrality of an ordinary law of general application,
vis-à-vis the five grounds for refugee status, must be
judged objectively by Canadian tribunals and courts when required.30
(3) In such consideration, an ordinary law of general application,
even in non-democratic societies, should
be given a presumption
of validity and neutrality, and the onus should be on a claimant, as is
generally the case in refugee cases, to show that the laws are either
inherently or for some other reason persecutory.31
(4) It will not be enough for the claimant to show that a particular
regime is generally oppressive but rather that the law in question is
persecutory in relation to a Convention ground.
Seriousness of harm is another issue
which has been addressed in connection with laws of general application.
It is quite possible that a law or policy of general application may well
be violative of basic human rights.32
Also, in Cheung it was decided that a law of general
application may be persecutory where the penalty is disproportionate to
the objective of the law, regardless of the authorities' intent:
if the punishment or treatment under a law of general
application is so Draconian as to be completely disproportionate to the
objective of the law, it may be viewed as persecutory. This is so regardless
of whether the intent of the punishment or treatment is persecution. Cloaking
persecution with a veneer of legality does not render it less persecutory.Brutality
in furtherance of a legitimate end is still brutality.33
In Chan (S.C.C.),
Mr. Justice La Forest approved
the comments of Linden J.A. regarding "state authority arguments" (as
they were called by La Forest J.).34
And La Forest J. provided his own observations with respect to the "legitimate
end" idea:
I do not in general consider it appropriate for courts
to make implicit or explicit pronouncements on the validity of another
nation's social policies. In the present case, the full extent of the
Chinese population policy is unknown in this country and undue speculation
as to its legitimacy serves no purpose.Whether the Chinese government
decides to curb its population is an internal matter for that government
to decide.Indeed, there are undoubtedly appropriate and acceptable means
of achieving the objectives of its policy that are not in violation of
basic human rights. However, when the means employed place broadly
protected and well understood basic human rights under international law
such as the security of the person in jeopardy, the boundary between acceptable
means of achieving a legitimate policy and persecution will have been
crossed. It is at this point that Canadian judicial bodies may pronounce
on the validity of the means by which a social policy may be implemented
in an individual case by either granting or denying Convention
refugee status
[Emphasis added. ]35
(The distinction between the authorities' objective and their means of
achieving it is discussed further in section 9.3.3. of this chapter.)
Furthermore, a penalty which is disproportionate
to the offence may constitute persecution.36
When imposed for certain offences, the death penalty may not constitute
persecution.37
If the Refugee Protection Division applies
the term "law of general application", it must be careful to include within
this characterization only what is actually authorized by the law in question.
Where a given policy constitutes a law of general application, a particular
sanction used to enforce that policy may not be a law of general application.38
And even if such a law does figure in the claim, the Division certainly
must not disregard measures which are beyond the law. Where there is evidence
of extra-judicial punishment or (other) lack of due legal process, consideration
must not be limited to the actual legislation itself.39
Indeed, perversions in the application of the law, such as the
bringing of a trumped-up charge, and interference in the due process of
law, may be aspects of persecutory treatment.40
In one instance, the Court of Appeal has said that pursuit of a claimant
for refusing to carry out a government order will constitute mere prosecution
only if the order was a "valid" one, and not one that was "illegal" or
with "no legal foundation".41
If enforcement of the law against the
claimant would proceed in accordance with due process, and if the sanctions
for violating a particular law are not serious, the situation is not one
of persecution.42
9.3.3. Policing Methods, National Security
and Preservation of Social Order
In some situations, the argument for
the acceptability of state actions may rely not on the presence of any
particular authorizing law (if any), but instead on the idea that those
actions were aimed at the preservation of social order, against dangers
such as crime and terrorism.Indeed, the actions in question, rather than
being approved by law, may be of very doubtful legality.
In this context as well, the courts
have grappled with the question of whether harmful conduct may be excused
by the purpose which prompts the authorities to engage in the conduct.43
In the first place, the above-quoted statement from Cheung -
that "[b]rutality in furtherance of a legitimate end is still brutality"44
- is again apposite. It is not rendered less relevant by the fact that
the brutality is perpetrated without the screen, or superficial legitimation,
of an authorizing law. Moreover, in Thirunavukkarasu,45
a later decision dealing more directly with the notion of preserving the
social order, the Court of Appeal ruled that "beatings of suspects can
never be considered 'perfectly legitimate investigations' [into criminal
or terrorist activities], however dangerous the suspects are thought to
be."46
The Court also affirmed that
the state of emergency in Sri Lanka cannot justify the
arbitrary arrest and detention as well as beatings and torture of an innocent
civilian at the hands of the very government from whom the claimant is
supposed to be seeking safety.47
It is inappropriate to dismiss mistreatment
on the theory that, by transgressing the law, the claimant forfeited any
right to complain about any treatment that was meted out to him or her
in response.Rather than stating simply that the claimant could not expect
to receive the authorities' approval for committing illegal acts, the
Refugee Protection Division must determine whether the treatment suffered
by the claimant constituted persecution in the circumstances.48
In a number of cases, the Trial Division
has applied reasoning of the kind that was subscribed to in Cheung
and Thirunavukkarasu.49
However, there have also been cases in which such reasoning has not been
applied by the Trial Division.50
In some of these latter cases, the Trial Division judgments appear to
contradict the letter and spirit of the opinions from the Court of Appeal.
According to the Trial Division, national
security and peace and order are valid social objectives of any state,
and temporary derogation of civil rights in an emergency does not necessarily
amount to persecution.51
In this regard, before finding mistreatment to be non-persecutory because
there is an emergency, the Refugee Protection Division should consider
several matters: Is there indeed an emergency? Is the particular right
that is being violated a derogable right, or is it non-derogable?52
If the right is derogable, what is the nature of the particular emergency,
what is the extent of the particular derogation, and is there a logical
nexus between the emergency and the derogation?
The Trial Division has said that short-term
detentions for the purpose of preventing disruptions53
or dealing with terrorism54
do not constitute persecution. It may also be proper to conclude that
some forms of violence, including beatings, do not amount to persecution
in the circumstances of a particular case, even though they are reprehensible
and violative of human rights;55
for example, the mistreatment may not have been repetitive or sufficiently
severe,56
and there may be no prospect of its being repetitive or sufficiently severe
in the future.However, given Cheung, and Thirunavukkarasu,
the Refugee Protection Division should be cautious about deeming violent
conduct to be non-persecutory.57
9.3.4. Enforcement and Serious Possibility
Even if the evidence speaks of some
harm that would qualify as serious, the Refugee Protection Division must
consider whether there is a serious possibility that the harm will actually
come to pass. A statute which outlaws the claimant's conduct or characteristic
may be in existence, and it may provide for unconscionably severe punishment
for that conduct or characteristic, but this does not necessarily mean
there is a serious possibility that the punishment will be inflicted on
the claimant. The Supreme Court has emphasized that, in a determination
as to whether the claimant's fear is objectively well founded, the relevant
factors include the laws in the claimant's homeland, together with the
manner in which they are applied. In this connection, the Court cited
paragraph 43 of the UNHCR
Handbook.58
Enforcement measures may vary from area to area within a country, and
if this is the case, "the reasonableness of a fear of persecution depends,
inter alia, on the practices of the relevant local authority".59
A pattern of non-enforcement might imply
that there is less than a serious possibility.60
For additional guidance regarding the
distinction between prosecution and persecution, see: IRB
Preferred Position Paper, Prosecution as a Basis for a Well-Founded
Fear of Persecution, March 1992. [NOTE: this paper does not
include case law which has appeared since March 1992. ]
9.3.5. Exit Laws
Some countries have laws which impose
restrictions on travel abroad.Such laws may make it an offence to depart
without prior permission (illegal departure),61
or to stay abroad beyond some stipulated period (overstay),62
or to visit certain countries.63
Where such laws exist, generally sanctions for breaching them are also
on the books. In some instances there may, in addition, be provision for
extending the authorized travel period before it ends, or for obtaining
retroactive authorization of travels that were not approved in advance.
In Valentin, Marceau J.A. spoke
to those situations in which "the claimant may face criminal sanctions
in his or her own country for leaving the territory without authorization
or for remaining abroad longer than his or her exit visa allowed."64
His Lordship stated:65
Counsel then challenged the Board's rejection of the argument
based on the existence of section 109 of the Czech Criminal Code
[the exit law] and the fear of imprisonment that the section aroused in
the claimants
[C]ounsel recalled that there was one school of thought
[which was] prepared to admit that the mere fear of punishment
under a provision such as section 109
could amount to a well-founded
fear of persecution and provide valid grounds for a refugee claim. We
know that some supporters of this theory argue a sort of presumption that
the authorities of the national State will automatically and inevitably
interpret the decision of their fellow-citizen to leave the country without
authorization, or to remain abroad beyond the time provided, as evidence
of political opposition. Counsel acknowledged that this is an extreme
position, which the vast majority of commentators rejected, and did not
urge its acceptance per se
Neither the international Convention nor our Act, which
is based on it, as I understand it, had in mind the protection of people
who, having been subjected to no persecution to date, themselves created
a cause to fear persecution by freely, of their own accord and with no
reason, making themselves liable to punishment for violating a criminal
law of general application. I would add
that the idea does not
appear to me even to be supported by the fact that the transgression was
motivated by some dissatisfaction of a political nature
, because
it seems to me, first, that an isolated sentence can only in very exceptional
cases satisfy the elements of repetition and relentlessness found at the
heart of persecution,66
, but particularly because the direct relationship that is required
between the sentence incurred and imposed and the offender's political
opinion does not exist.
However, where the claimant has violated
an exit law, the decision to punish the claimant for that infraction,
or to impose a certain degree of punishment, might be due to some characteristic
of the claimant such as his political record.67
Repercussions beyond the statutory sentence may suggest that the actions
of the authorities are persecutory.68
9.3.6. Military Service:Conscientious Objection,
Evasion, Desertion
The claimant's problems may be connected
with a disinclination to serve in the military.Either the claimant entered
the military and left it without authorization (i.e.,
the claimant deserted);69
or the claimant was ordered to report for service, but refused to report
or refused to be inducted; or the claimant has not yet received a call-up,
but anticipates that the order will be forthcoming and does not wish to
comply.
The courts have established some very
basic points of departure for the analysis of such claims. Thus, conscientious
objectors and army deserters are not automatically included in the Convention
refugee definition, nor is a person precluded from being a Convention
refugee because the person is a conscientious objector or deserter.70
It is not persecution for a country to have compulsory military service.71
An aversion to military service or a fear of combat is not in itself sufficient
to justify a fear of persecution.72
Proceeding to a more detailed analysis
of the claim, the Refugee Protection Division must consider whether the
circumstances disclose a nexus between the treatment feared and one of
the Convention grounds. Zolfagharkhani73
is the leading case with respect to nexus (and other factors) in military-service
situations.74
The principles quoted from that case earlier on75
should be referred to for guidance when determining whether the claimant's
difficulties regarding service should be ascribed to a Convention ground,
or instead should be considered punishment for a violation of a law of
general application.
Zolfagharkhaniindicates that
it is not the claimant's motivation for refusing to serve which is relevant,
but rather the intent or principal effect of the conscription law.76
In accordance with this guideline, one must ask whether the reaction of
the authorities to the claimant's refusal to serve would be a function
of some Convention attribute which the claimant has, or would be perceived
by the authorities as having (a political opinion often being the likeliest
possibility).77
Even where the claimant has no strong convictions which should be permitted
to interfere with the claimant's serving, his refusal might be regarded
by the authorities as an indication of an opinion which is frowned upon
by them.
However, it would seem that the motivation
of the claimant has not been completely discarded as a factor in claims
concerning military service, although the cases do not make clear to which
element or elements (nexus, serious harm) it may relate, and exactly how
it should be worked into the consideration of a particular element. In
Zolfagharkhani itself, the Court of Appeal focused on the claimant's
reason of conscience for not wishing to serve, and laid considerable emphasis
on the fact that the particular combat technique to which the claimant
objected was abhorred by the international community; but the Court did
not provide much explanation as to how such attending to the claimant's
reason of conscience was to be reconciled with the view that the claimant's
motivation is not relevant.78
Furthermore, in subsequent decisions, the Trial Division has repeatedly
considered the claimant's conscience, as well as the attitude of the international
community to operations criticized by the claimant.Reliance has even been
placed explicitly upon the "applicant's motive".79
The reader should bear in mind these ambiguities in the case law when
reviewing the following observations on reasons-of-conscience claims.80
When addressing a case in which the
claimant invokes reasons of conscience for his aversion to performing
military service, the Refugee Protection Division must decide whether
the particular reasons adduced are of sufficient significance.
As a sidebar to this issue, there is
some debate - and some confusion - about the meaning of the term "conscientious
objector". In Popov, the Trial Division indicated that, "in the
usual sense", this term applied to a person who "was a pacifist or was
against war and all militarism on the grounds of principle, either religious
or philosophical."81
It may be correct to reserve this particular term for persons who are
opposed to all militarism; but at the same time, it must be appreciated
that what is important for the determination of a claim is not whether
this particular label fits.
The important question is whether a
claimant's reason of conscience will be sufficiently significant only
if it entails an opposition to all militarism (or is otherwise broad in
scope). In Zolfagharkhani, the Court of Appeal indicated that
a claimant's objection may be entitled to respect even if it is more specific:
where the claimant did not object to military service in general or to
the particular conflict, but was opposed to the use of a particular category
of weapon (namely, chemical weapons), the Court found his objection to
be reasonable and valid.82
Similarly, the Trial Division has held that a claimant may object to serving
in a particular conflict, rather than objecting to military service altogether,
and may still be a Convention refugee.83
This is not to say that any narrow or
limited objection of conscience will suffice. The objection may be regarded
as sufficiently serious if the military actions objected to are judged
by the international community to be contrary to basic rules of human
conduct.84
However, a military's operations are not to be characterized as contravening
international standards if there are only isolated violations of those
standards.Instead, there must be offending military activity by the military
forces which is condoned in a general way by the state.85
The serious harm that is a requisite
for persecution may be found in the forcing of the claimant to perform
military service; where reasons of conscience are involved, there is also
a violation of the claimant's freedom of conscience; where military actions
violate international standards, the claimant might be forced into association
with the wrongdoing.86
One must also bear in mind that some conscription activities may be extra-legal,
and may therefore lack any basis for claiming to constitute legitimate
exercises of state authority. An organization may have de facto
authority and an ability to coerce persons into performing military service,
yet not be a legitimate government, and have no right to conscript.87
If a call-up for military service would
not necessarily result in the claimant's being compelled to perform military
service, the injury to the claimant's interests is less, and the legitimacy
of the demands placed on the claimant by the state looms large. Therefore,
where objections of conscience may enable the claimant to obtain an exemption
from service, or assignment to alternative service (i.e.,
non-military service, or non-combat service, or service outside a particular
theatre of operations), the conscription law may not be inherently persecutory.88
Nor is there persecution if the penalties
for refusing to serve are not harsh,89
except perhaps where the refusal to serve occurs in the context of a military
operation condemned as contrary to basic rules of human conduct.90
The Refugee Protection Division must consider the actual practice in the
treatment of deserters, and not just the penalty prescribed by law.91
Somewhat akin to the idea that the claimant
would not be persecuted if he would not be forced into military activity
is the notion that the Refugee Protection Division should not endorse
an objection to compulsory military service in the country of reference
if the claimant chose to immigrate to that country, knowing that compulsory
service existed there.92
9.3.7. One-Child Policy of China
The People's Republic of China has a
policy which, subject to exceptions, restricts each couple to having one
child. A variety of sanctions are used in attempts to secure compliance
with the policy.
The Canadian courts have generated three
leading decisions regarding this matter. In the earliest of the three,
Cheung,93
the Court of Appeal declared the claimants to be Convention refugees:
they were a woman who was facing forced sterilization, and her minor daughter
who had been born in violation of the policy. Cheung was a unanimous
decision of three judges.
Next came the Court of Appeal's decision
in Chan,94
where the majority found against a man who was allegedly facing forced
sterilization.Two judges (Heald and Desjardins, JJ.A.) constituted the
majority; the third (Mahoney J.A.), who had also been part of the bench
in Cheung, dissented.Each of the three Court of Appeal judges
in Chan produced a separate set of reasons, and there were significant
differences even between the two majority decisions. It should be noted
that the Supreme Court's ruling in Ward95
came out after Cheung but before Chan (F.C.A.).
The Court of Appeal in Chan considered both Cheung and
Ward.
Chan (F.C.A.)
was appealed, yielding the third of the principal authorities, the decision
of the Supreme Court in Chan.96
Again there was a split decision: by a four-to-three majority, the Court
dismissed the appeal, affirmed the decisions of the Court of Appeal and
the Refugee Division, and found against the appellant (claimant).
The crux of the judgment of the Supreme
Court majority (per Major J.) was that the evidence was inadequate to
make out the claimant's allegations - notably, his allegation that there
was a serious possibility he would be physically coerced into undergoing
sterilization.Apart from recording views expressed by the Court of Appeal
in Chan (including views concerning Cheung and Ward
), Mr. Justice Major declined to
discuss, or rule on, certain legal issues which had occupied that lower
court in this case: e.g., whether
forced sterilization constitutes persecution; whether the claim involved
a particular social group; and whether the claimant's having a second
child was to be construed as an act which expressed a political opinion
(or an act which would be perceived by the authorities as the expression
of a political opinion).
The Supreme Court's dissenting minority
(per La Forest J.) had a different appreciation of the evidence, and would
have left it to the Refugee Division to perform a further assessment of
the evidence; however, in finding that the appeal should be allowed, the
minority also addressed some of the legal issues which the majority had
bypassed. The minority's comments on these issues carry considerable persuasive
authority, inasmuch as they were not contradicted by the majority, and
represent the views of a significant number of Supreme Court justices;
furthermore, insofar as these comments are an explanation of the Ward
decision, it must be noted that the explanation was provided by the author
of that decision, Mr. Justice
La Forest.
Further particulars of these three leading
decisions are set forth in the material that follows.
* * *
In the context of claims involving the
one-child policy, the Court of Appeal has reiterated that all elements
of the Convention refugee definition must be present. Thus, it has been
noted that, where the claim concerns the breach of a valid policy, abhorrence
of the penalty, or the presence of a well-founded fear of persecution,
does not justify a finding that the claimant is a Convention refugee;
it is also necessary that the punishment be for a Convention reason.97
Conversely, if a link to a Convention ground is established, the claimant
must still show that he or she has a well-founded fear of persecution.98
On the issue of serious harm, both
in Cheung and in Chan (F.C.A.)
it was held that the anticipated mistreatment qualified. Thus, forced
or strongly coerced99
sterilization constitutes persecution, whether the victim is a woman100
or a man.101
In Cheung, Linda J.A. explained
this conclusion as follows:102
Even if forced sterilization were accepted as a law of general
application, that fact would not necessarily prevent a claim to Convention
refugee status. Under certain circumstances, the operation of a law of
general application can constitute persecution. In Padilla
,
the Court held that a Board must consider extra-judicial penalties which
might be imposed. Similarly, in our case, the appellant's fear is not
simply that she may be exposed to the economic penalties authorized by
China's one child policy. That may be acceptable. Rather, the [claimant],
in this case, genuinely fears forced sterilization; her fear extends beyond
the consequences of the law of general application to include extraordinary
treatment in her case that does not normally flow from that law
Furthermore,
if the punishment or treatment under a law of general application is so
Draconian as to be completely disproportionate to the objective of the
law, it may be viewed as persecutory. This is so regardless of whether
the intent of the punishment or treatment is persecution.Cloaking persecution
with a veneer of legality does not render it less persecutory.Brutality
in furtherance of a legitimate end is still brutality.
The forced sterilization of women is a fundamental violation
of basic human rights
The forced sterilization of a woman is a serious
and totally unacceptable violation of her security of the person. Forced
sterilization subjects a woman to cruel, inhuman and degrading treatment
I have no doubt, then, that the threat of forced sterilization can ground
a fear of persecution within the meaning of Convention refugee under the
Immigration Act.
In Chan (S.C.C.),
Mr. Justice La Forest, in dissent,
stated:
[W]hatever technique is employed, it is utterly beyond
dispute that forced sterilization is in essence an inhuman and degrading
treatment involving bodily mutilation, and constitutes the very type of
fundamental violation of basic human rights that is the concern of refugee
law.103
The Trial Division has held that forced
abortion, being an invasion of a woman's body, is equivalent to or worse
than forced sterilization and, accordingly, constitutes persecution.104
Regarding the requirement that the fear
of persecution be well founded, the Trial Division observed that the issue
was not whether the female claimant had been forced to undergo an abortion
in the past, but instead whether there was a reasonable chance she would
be forced to undergo one if returned to China.105
Nexus was the principal area of disagreement
between Cheung and Chan (F.C.A.).
The two cases offered quite different views on the issue of whether the
feared sterilization would be inflicted by reason of a Convention ground.
Cheung held that there was a targeted social group;106
the majority in Chan (F.C.A.)
found otherwise.107
Speaking for the majority in Chan (S.C.C.),
Mr. Justice Major chose not
to address the question of whether the case involved a particular social
group.108
However, La Forest J. (dissenting)
held that "[p]ersons such as the appellant, if persecuted on the basis
of having had more than one child, would be able to allege membership
in a particular social group".109
Please refer to Chapter 4 for a fuller description of the views of
the Supreme Court of Canada regarding particular social group.
Political opinion is another ground
which might be invoked with respect to the one-child policy.However, in
Chan (F.C.A.),
Heald J.A. ruled that the authorities' reaction to the claimant's non-compliance
would not be by reason of political opinion;110
and Desjardins J.A. was apparently inclined toward the same conclusion.111
In Cheng, while the claimant
pointed to a social group ("those who violated Chinese government family
planning policy"), religion also figured in the story. The claimant was
a Roman Catholic, and it had been his religious beliefs that had prompted
him to oppose the policy.112
9.3.8. Religious or Cultural Mores
Every society has limits on what it
regards as acceptable behaviour. In some countries, the norms of the society
(or the norms laid down by some ruling group) may be more constraining
than elsewhere. The norms may interfere with the exercise of human rights,
and may impose limitations on certain categories of people - categories
which may be defined by Convention-protected characteristics. These restrictions
may be entrenched in law, and may be backed up by coercive action and
penalties. A claimant who transgresses the conventions of his or her homeland
(and perhaps, at the same time, violates the law) may be at risk of serious
harm.
When dealing with the norms of other
societies, the Refugee Protection Division should bear in mind that an
application of the Convention refugee definition involves measuring the
claimant's situation, and any actions visited upon the claimant, against
human rights standards which are international (and which may sometimes
be interpreted by reference to Canadian law). It is not appropriate simply
to defer to the notions of propriety favoured by the majority or the rulers
in the claimant's homeland. In this regard, reference should be made to
Chapter 3, Section 3.1.1.1.113
Among the claims which concern societal
norms are those of women who face restrictions associated with religion
or tradition, and those of Ahmadis from Pakistan.
9.3.8.1. Restrictions upon Women
Regarding the seriousness of harm, the
Trial Division has termed female circumcision a "cruel and barbaric practice",
a "horrific torture", and an "atrocious mutilation".114
In Namitabar, the Trial Division
held that punishment under an Iranian law requiring women to wear the
chador may constitute persecution. The Court noted that the penalty
would be inflicted without procedural guarantees, and that the penalty
was disproportionate to the offence.115
In Fathi-Rad, another case involving the Iranian dress code,
the Trial Division found that the treatment accorded the claimant for
purely minor infractions of the Islamic dress code in Iran was completely
disproportionate to the objective of the law.116
On the other hand, in Hazarat,117
the Trial Division upheld a finding that restrictions imposed on women
by laws and practices under the Mujahadeen government in Afghanistan (including
restrictions concerning dress, movement outside the home, travel, education
and work) amounted to discrimination only, not persecution.
In Vidhani, the claim of an
Asian, Moslem woman from Kenya derived from the fact that her father had
arranged a marriage for her.She did not wish to marry the man in question,
and feared that this man would abuse her if they did marry.She also feared
being abused by her father if she refused to marry and being sexually
attacked by the police if she complained to them. The Trial Division stated
that women who are forced into marriages have had a basic human right
violated.118
It also referred to the possibility that persecution might be found in:
(i) the claimant's being forced into a marriage; (ii) spousal abuse; (iii)
abuse by the father; and (iv) the reaction of the police.119
In Ameri,120
the claimant, a woman who disliked the Iranian dress code, urged that
women were victims of the means by which the code was enforced. In response,
the Trial Division said:
There was not evidence that her activities and commitments or
beliefs would challenge the policies and laws of Iran, if she were to
return, in a manner that might result in retributive action by the state
that would constitute persecution. Her expressed fear was thus found not
to be objectively based. I am not persuaded that the tribunal's conclusion
on this aspect of her claim was unreasonable.121
In the same vein, or in a very similar
vein, was the Pour case.122
There it was argued that all women resident in a state who disagree with
gender-specific discriminatory rules, such as the Iranian dress code for
women, suffer from persecution. The Trial Division observed that this
proposition went substantially beyond its decisions in Namitabar
123
and Fathi-Rad,124
which concerned women who had engaged in a series of acts of defiance
and had suffered punishments as a result.
This would appear to mean that a claim
will fail if the claimant has not demonstrated, via past conduct, a readiness
to assert some right and thereby express dissent (or if the claimant's
dissenting conduct has not resulted in mistreatment of the claimant).
On the other hand, the Court has also considered it improper to effectively
require that the claimant buy peace for herself by refraining from the
exercise, or acquiescing in the denial, of one of her basic rights.125
Regarding nexus, the Trial Division
has said that a law which specifically targets the manner in which women
dress may not properly be characterized as a law of general application
which applies to all citizens.126
A woman's breach of a dress code may be perceived as a display of opposition
to a theocratic regime.127
In Vidhani, the Trial Division
found that the claimant belonged to a particular social group consisting
of women forced into arranged marriages without their consent. It also
referred to another alleged particular social group: "Asian women in Kenya".
The Court observed that Ward's category (1) (groups defined by
an innate or unchangeable characteristic) seemed applicable to the claimant's
circumstances.128
In Ali, Shaysta-Ameer, the
Refugee Division held that an adult claimant belonged to a group consisting
of educated women. The Trial Division apparently considered her nine-year-old
daughter to be a member of the same - or a similar - group.129
In Annan, a Christian woman
was faced with the possibility of being forcibly circumcised by "Moslem
fanatics", at the instigation of a Moslem man who wished to marry her.
The claimant cited religion as the basis for her difficulties130
and the Court held that the Refugee Division had erred in rejecting her
claim, but the Court did not discuss the nexus issue.
With respect to state protection, in
Annan the Court found that the claimant could not count on state
protection against forcible circumcision: one must consider not only the
state's ability to protect but also its willingness; and while the Ghanaian
government had sometimes shown an intention to make female circumcision
illegal, it had not yet done this, it was still tolerating the practice,
and pious vows were not reassuring. The Court also noted that the claimant
would be returning to Ghana alone, as she had been unable to locate her
parents.131
For additional guidance regarding claims
by women who transgress conventions of their homelands, see Women
Refugee Claimants Fearing Gender-Related Persecution.132
9.3.8.2. Ahmadis from Pakistan
In Pakistan, legislation prohibits persons
belonging to the Ahmadi religious group from engaging in certain activities
(activities connected with the practice of their religion or with their
religious identification), and establishes penalties for violations of
the prohibitions. One of the statutes concerned is known as Ordinance XX.
The Trial Division has said that mere
existence of an oppressive law (Ordinance XX) which is enforced only
sporadically does not by itself show that all members of the group targeted
by the law (Ahmadis) have good grounds for fearing persecution.133
In Ahmad, Masroor,134
the claimant had wished to argue before the Refugee Division that, given
the nature of Ordinance XX, the simple existence of that law meant the
claimant was persecuted. The Court acknowledged that it would be proper
for the claimant to put forward such an argument (although, based on an
evidentiary consideration, the Court also cast some doubt on the argument's
ability to succeed).
In Rehan,135
the Refugee Division agreed with the following statement, taken from the
judgment of the English Court of Appeal in Ahmad and others v.
Secretary of State for the Home Department136:
It has been accepted by
the Secretary of State,
that the Ordinance, by itself, was well capable of being regarded as discrimination
against all members of the Ahmadi sect; but in my judgment the proposition
that it was by itself capable of making the appellants liable to persecution
simply by virtue of being members of the sect is quite unsustainable.
The only members of the sect potentially liable to persecution would be
those who proposed to act in contravention of its provisions.Nothing in
the Ordinance prevented persons from holding the belief of the sect, without
engaging in any of the specified prohibited activities.
It was apparent to the Secretary of State
that most Ahmadis
live ordinary lives, untroubled by the Government despite the existence
of the Ordinance. In my judgment he would have been fully entitled to
assume that if the appellants, on returning to Pakistan, would intend
to disobey the Ordinance and such intention constituted the reason, or
a predominant reason, for their stated fear, they would have said so
It would appear that the Trial Division
held that it was reasonably open to the Refugee Division to rely on this
analysis, but stopped short of holding that the analysis was correct.137
Furthermore, the Trial Division indicated that if the applicant had stated
or demonstrated an intention to violate Ordinance XX, and if his past
conduct had been consistent with this intention, he might very well have
established a claim.138
In Ahmed,139
the Trial Division observed that "
the Federal Court of Canada has
not yet clearly decided whether the discriminatory laws of Pakistan are
indeed persecutory in relation to Ahmadis. It has preferred to adopt a
case-by-case analysis of refugee claimants' prospective fears of persecution."
(Footnote omitted.) In the Trial Division, the Minister conceded that
the Refugee Division had erred in finding that the episodes of mistreatment
experienced by the claimant did not constitute past persecution; however,
the Trial Division upheld the further conclusion that there was no reasonable
chance of persecution.
In Mehmood,140
the Trial Division found that the Refugee Division had erred in restricting
its analysis to whether or not the claimant was a registered or official
member of the Ahmadi religion.On the basis of the evidence before it,
the Refugee Division was required to determine whether or not the claimant
had a well-founded fear of persecution arising from the perception that
he was a member of the Lahori Ahmadi religion.
9.4. Indirect Persecution and Family Unity
The concept of "indirect persecution"
was described by Mr. Justice
Jerome in Bhatti141
as follows:
The concept of indirect persecution is premised on the assumption
that family members are likely to suffer great harm when their close relatives
are persecuted. This harm may manifest itself in many ways ranging from
the loss of the victim's economic and social support to the psychological
trauma associated with witnessing the suffering of loved ones.
The theory is based on a recognition of the broader harm caused
by persecutory acts.By recognizing that family members of persecuted persons
may themselves be victims of persecution, the theory allows the granting
of status to those who might otherwise be unable to individually prove
a well-founded fear of persecution.
However, in Pour-Shariati,
Mr. Justice Rothstein said
that "the Bhatti approach to indirect persecution unjustifiably
broadens the Convention refugee basis for admission to Canada, to include
persons who do not have a well-founded fear of persecution in their own
right."142
Furthermore, in Casetellanos, Mr. Justice
Nadon noted that
there must be a very clear link between a refugee claimant
and one of the five prescribed grounds in the Convention refugee definition.However,
the principal of indirect persecution does not require the claimant to
have a well-founded fear of persecution or to be persecuted; indirect
persecution arises out of the fact that the claimant is the unwilling
spectator of some incidents of violence targeted against other members
of the family or the social group to which he or she belongs, for example.
Furthermore, in Bhatti,
Jerome A.C.J. held
that the scope of the principle was such that it could extend beyond traditional
grounds of persecution to support or economic considerations
In my opinion, such an extension of the so-called principle
of indirect persecution is unacceptable as lack of economic, monetary
or emotional support do not constitute a ground for being found a Convention
refugee. It would therefore be surprising if the principle of indirect
persecution could subsume such a concept.
143
Nadon J. went on to hold that "indirect persecution does
not constitute persecution within the meaning of the definition of Convention
refugee."144
The Court of Appeal has now dealt with
and dismissed the appeal in Pour-Shariati,145
and in so doing it has squarely rejected the concept of indirect persecution
that was articulated in Bhatti:
We accordingly overrule Bhatti's recognition of the
concept of indirect persecution as a principle of our refugee law. In
the words of Nadon, J. in Casetellanos
, "since indirect
persecution does not constitute persecution within the meaning of Convention
refugee, a claim based on it should not be allowed."It seems to us that
the concept of indirect persecution goes directly against the decision
of this Court in Rizkallah
, where it was held that there
had to be a personal nexus between the claimant and the alleged persecution
on one of the Convention refugee grounds.One of these grounds is, of course,
a "membership in a particular social group", a ground which allows for
family concerns in on [sic] appropriate case.
Following Pour-Shariati, Muldoon, J. rejected the concept of
indirect persecution in Cetinkaya146
and held, on the facts in that case, that there had to be a nexus between
the claimant and the general situation in his country, Turkey, regarding
members of the PKK. He stated as follows:
[25]
While certain members of the PKK
may face persecution, it is for the [claimant] to demonstrate that he
falls within that class of individuals who may face persecution. It is
not sufficient to adduce evidence that members of the PKK
are being persecuted without providing the necessary link between the
[claimant's] activities and the persecution feared. Even in the situation
of a perceived political opinion, a link must be made between the applicant
and the political opinion which may be attributed to him.
A claim based on indirect persecution
may be distinguished from one based on the principle of "family unity".147
That principle is discussed in paragraphs 182 to 185 of the UNHCR
Handbook. The family-unity claimant does not attempt to satisfy
the definition's persecution requirement by pointing to side-effects.Instead,
he or she takes the position that if the directly-attacked individual
meets all criteria of the Convention refugee definition, a family member
may be recognized as a Convention refugee regardless of whether the family
member meets the definition's criteria (i.e.,
has a well-founded fear of persecution). This is a position which has
been rejected as being without foundation in Canadian law.148
- Abdi, Jama Osman v. M.E.I.
(F.C.T.D.,
no. A-1089-92), Simpson,
November 18, 1993
- Abdulle, Sadia Mohamed v.
M.E.I.
(F.C.T.D.,
no. A-1440-92), Nadon, September 16,
1993
- Abdulle, Shamsa v. M.E.I.
(F.C.T.D.,
no. A-1298-92), Nadon, December 3,
1993
- Addo, Samuel v. M.E.I.
(F.C.A.,
no. A-614-89), Mahoney, Hugessen,
Gray, May 7, 1992
- Addullahi, Isse Samatar v.
M.C.I.
(F.C.T.D.,
no. IMM-3170-95), Gibson,
November 4, 1996
- Aden, Ahmed Abdulkadir v.
M.C.I.
(F.C.T.D.,
no. IMM-2912-95), MacKay,
August 14, 1996.Reported: Aden v.
Canada (Minister of Citizenship and Immigration) (1996), 35 Imm.
L.R. (2d) 40 (F.C.T.D.)
- Aden, Khadija Hilowle v.
M.C.I.
(F.C.A.,
no. A-602-94), MacGuigan
(dissenting), Robertson, McDonald, June 10, 1997
- Agranovski, Vladislav v.
M.C.I.
(F.C.T.D.,
no. IMM-2709-95), Tremblay-Lamer,
July 3, 1996
- Ahani, Roozbeh v. M.C.I.
(F.C.T.D.,
no. IMM-4985-93), MacKay,
January 4, 1995
- Ahmad and others v. Secretary
of State for the Home Department [1990] Imm. A.R. 61 (Eng.C.A.)
- Ahmad, Masroor v. M.E.I.
(F.C.T.D.,
no. A-555-92), Rothstein,
June 16, 1994
- Ahmed, Faisa Talarer v.
M.E.I.
(F.C.T.D.,
no. A-1017-92), Noël,
November 2, 1993
- Ahmed, Irfan v. M.C.I.
(F.C.T.D.,
no. IMM-2725-96), Joyal,
July 4, 1997
- Ahmed, Mohamed Hassan v.
M.E.I.
(F.C.T.D.,
no. A-818-92), McKeown, May 20,
1994
- Alfred, Rayappu v. M.E.I.
(F.C.T.D.,
no. IMM-1466-93), MacKay,
April 7, 1994
- Ali, Farhan Omar v. M.C.I.
(F.C.T.D.,
no. A-1652-92), McKeown,
June 26, 1995
- Ali, Hassan Isse v. M.E.I.
(F.C.T.D.,
no. IMM-39-93), MacKay, June 9,
1994
- Ali, Shaysta-Ameer v. M.C.I.
(F.C.A.,
no. A-772-96), Décary,
Stone, Strayer, January 12, 1999
- Ali, Shaysta-Ameer v. M.C.I.
(F.C.T.D.,
no. IMM-3404-95), McKeown,
October 30, 1996.Reported: Ali v.
Canada (Minister of Citizenship and Immigration) (1996), 36 Imm.
L.R. (2d) 34 (F.C.T.D.)
- Al-Maisri, Mohammed v. M.E.I.
(F.C.A.,
no. A-493-92), Stone, Robertson,
McDonald, April 28, 1995
- Altawil, Anwar Mohamed v.
M.C.I.
(F.C.T.D.,
no. IMM-2365-95), Simpson,
July 25, 1996
- Ameri, Ghulamali v.
M.C.I.
(F.C.T.D.,
no. IMM-3745-94), MacKay,
January 30, 1996
- Annan v. Canada (Minister
of Citizenship and Immigration), [1995] 3 F.C.
25 (T.D.)
- Antonio, Pacato Joao v.
M.E.I.
(F.C.T.D.,
no. IMM-1072-93), Nadon,
September 27, 1994
- Aoul, Djamila Hadjadj v.
M.C.I.
(F.C.T.D.,
no. IMM-2880-99), Blais,
April 6, 2000
- 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.)
- Asadi, Sedigheh v. M.C.I.
(F.C.T.D.,
no. IMM-1921-96), Lutfy,
April 18, 1997
- Azofeifa, Kattia Perez v.
M.C.I.
(F.C.T.D.,
no. IMM-1899-94), McKeown,
December 21, 1994
- Balasingham, Satchithananthan v.
S.S.C.
(F.C.T.D.,
no. IMM-2469-94), Rothstein,
February 17, 1995.
- Balasubramaniam, Sriharan v.
M.C.I.
(F.C.T.D.,
no. IMM-5414-93), Muldoon,
December 13, 1994.
- Balayah, Khadar Yusuf v.
M.C.I.(F.C.T.D.,
no. A-1395-92), Simpson,
April 24, 1996 (reasons signed July 29, 1996)
- Baranchook, Peter v. M.C.I.
(F.C.T.D.,
no. IMM-876-95), Tremblay-Lamer,
December 20, 1995
- Barima v. Canada (Minister
of Employment and Immigration), [1994] 1 F.C.
30 (T.D.)
- Barisic, Rajko v. M.C.I.
(F.C.T.D.,
no. IMM-7275-93), Noël,
January 26, 1995
- Bhatti, Naushaba v. S.S.C.
(F.C.T.D.,
no. A-89-93), Jerome, September 14,
1993.Reported: Bhatti v.
Canada (Secretary of State) (1994), 25 Imm.
L.R. (2d) 275 (F.C.T.D.)
- Blagoev, Stoycho Borissov v.
M.E.I.
(F.C.A.,
no. A-827-91), Heald, Desjardins,
Linden, July 19, 1994.
- Bragagnini-Ore, Gianina Evelyn v.
S.S.C.
(F.C.T.D.,
no. IMM-2243-93), Pinard,
February 4, 1994.
- Brar, Jaskaran Singh v.
M.E.I.
(F.C.T.D.,
no. IMM-292-93), Rouleau,
September 8, 1993
- Busto, Nidia Graciela Saez de v.
M.C.I.
(F.C.T.D.,
no. IMM-3704-94), Rothstein,
February 16, 1995.
- Butt, Abdul Majid (Majeed) v.
S.G.C. (F.C.T.D.,
no. IMM-1224-93), Rouleau,
September 8, 1993
- Casetellanos v. Canada (Solicitor
General), [1995] 2 F.C.
190 (T.D.)
- Castaneda, Robert Martinez v.
M.E.I.
(F.C.T.D.,
no. A-805-92), Noël,
October 19, 1993
- Cetinkaya, Lukman v. M.C.I.
(F.C.T.D.,
no. IMM-2559-97), Muldoon,
July 31, 1998
- Chan v. Canada (Minister
of Employment and Immigration), [1993] 3 F.C.
675; (1993), 20 Imm.
L.R. (2d) 181 (C.A.)
- Chan v. Canada (Minister
of Employment and Immigration), [1995] 3 S.C.R.
593
- Cheng v. Canada (Minister
of Citizenship and Immigration) (F.C.T.D.,
no. IMM-6589-00), Pinard,
March 1, 2002; 2002 FCT
211
- Cheng, Kin Ping v. M.C.I.
(F.C.T.D.,
no. IMM-176-97), Tremblay-Lamer,
October 8, 1997
- Cheung v. Canada (Minister
of Employment and Immigration), [1993] 2 F.C.
314 (C.A.)
- Chow, Wing Sheung v. M.C.I.
(F.C.T.D.,
no. A-1476-92), McKeown,
March 26, 1996
- Chu, Zheng-Hao v. M.C.I.
(F.C.T.D.,
no. IMM-5159-94), Jerome,
January 17, 1996
- Ciric v. Canada (Minister
of Employment and Immigration), [1994] 2 F.C.
65 (T.D.)
- Daghighi, Malek v. M.C.I.
(F.C.T.D.,
no. A-64-93), Reed, November 16,
1995
- Dawlatly, George Elias George v.
M.C.I.
(F.C.T.D.,
no. IMM-3607-97), Tremblay-Lamer,
June 16, 1998
- Denis, Juan Carlos Olivera v.
S.S.C.
(F.C.T.D.,
no. IMM-4920-93), Nadon,
February 18, 1994
- Diab, Wadih Boutros v. M.E.I.
(F.C.A.,
no. A-688-91), Isaac, Marceau,
McDonald, August 24, 1994
- Drozdov, Natalia v. M.C.I.
(F.C.T.D.,
no. IMM-94-94), Joyal, January 9,
1995
- El Khatib, Naif v. M.C.I.
(F.C.T.D.,
no. IMM-5182-93), McKeown,
September 27, 1994
- Ezeta, Octavio Alberto del Busto v.
M.C.I.
(F.C.T.D.,
no. IMM-2021-95), Cullen,
February 15, 1996.
- Farah, Abdul-Qadir v. M.C.I.
(F.C.T.D.,
no. A-428-92), Noël,
January 31, 1995
- Fathi-Rad, Farideh v. S.S.C.
(F.C.T.D.,
no. IMM-2438-93), McGillis,
April 13, 1994
- Fofanah, Isha v. M.C.I.
(F.C.T.D.,
no. IMM-4795-97), Muldoon,
July 16, 1998
- Frid, Mickael v. M.C.I.
(F.C.T.D.,
no. IMM-6694-93), Rothstein,
December 15, 1994
- Garcia, Marvin Balmory Salvador v.
S.S.C.
(F.C.T.D.,
no. IMM-2521-93), Pinard,
February 4, 1994.
- Gutierrez, Blanca v. M.C.I.
(F.C.T.D.,
no. IMM-1118-99), Lemieux,
May 12, 2000
- Gwanzura, Unity v. M.C.I.
(F.C.T.D.,
no. IMM-1907-96), Heald,
July 10, 1997
- Haoua, Mehdi v. M.C.I.
(F.C.T.D.,
no. IMM-698-99), Nadon, February
21, 2000
- Hashi, Haweya Abdinur v.
M.C.I.
(F.C.T.D.,
no. IMM-2597-96), Muldoon,
July 31, 1997
- Hashmat, Suhil v. M.C.I.
(F.C.T.D.,
no. IMM-2331-96), Teitelbaum,
May 9, 1997
- Hassan, Jamila Mahdi v.
M.E.I.
(F.C.A.,
no. A-757-91), Isaac, Marceau,
McDonald, August 25, 1994.Reported: Hassan v.
Canada (Minister of Employment and Immigration) (1994), 174
N.R. 74 (F.C.A.)
- Hazarat, Ghulam v. S.S.C.
(F.C.T.D.,
no. IMM-5496-93), MacKay,
November 25, 1994
- Hersi, Nur Dirie v. M.E.I.
(F.C.A.,
no. A-1231-91), MacGuigan,
Linden, McDonald, November 4, 1993.
- Hersi, Udbi (Ubdi) Hashi v.
M.E.I.
(F.C.T.D.,
no. 92-A-6574), Joyal, May 5,
1993
- Hophany, Parwiz v. M.E.I.
(F.C.T.D.,
no. A-802-92), Jerome, July 19,
1994
- Hotaki, Khalilullah v. M.E.I.
(F.C.T.D.,
no. IMM-6659-93), Gibson,
November 22, 1994
- Ilbeigi-Asli: S.S.C.
v. Ilbeigi-Asli, Mehrbanou
(F.C.T.D.,
no. IMM-2766-94), McKeown,
March 17, 1995
- Iramachanthiran, Irathinam v.
M.C.I.
(F.C.T.D.,
no. IMM-2789-95), Simpson,
April 24, 1996 (reasons signed July 29, 1996)
- Isa, Sharmarka Ahmed v.
S.S.C.
(F.C.T.D.,
no. IMM-1760-94), Reed, February 16,
1995
- Janjicek, Davorin v. M.C.I.
(F.C.T.D.,
no. IMM-2242-94), Richard,
March 28, 1995
- Jeyarajah, Vijayamalini v.
M.C.I.
(F.C.T.D.,
no. IMM-2473-98), Denault,
March 17, 1999
- John, Lindyann v. M.C.I.
(F.C.T.D.,
no. IMM-2833-95), Simpson,
April 24, 1996 (reasons signed July 29, 1996)
- Joseph, Christy Shanthakumar v.
S.S.C.
(F.C.T.D.,
no. IMM-7503-93), MacKay,
November 18, 1994. 9-13
- Kaler, Minder Singh v. M.E.I.
(F.C.T.D.,
no. IMM-794-93), Cullen,
February 3, 1994
- Kanagalingam, Uthayakumari v.
M.C.I.
(F.C.T.D.,
no. IMM-566-98), Blais, February
10, 1999
- Kanapathypillai, Indrarajan v.
M.C.I.
(F.C.T.D.,
no. IMM-3724-96), Heald,
July 11, 1997
- Kandiah, Palachandran v.
M.C.I.
(F.C.T.D.,
no. IMM-7125-93), Cullen,
December 7, 1994
- Kaprolova, Elena v. M.C.I.
(F.C.T.D.,
no. IMM-388-97), Teitelbaum,
September 25, 1997
- Kazkan, Shahrokh Saeedi v.
M.C.I.
(F.C.T.D.,
no. IMM-1313-96), Rothstein,
March 20, 1997
- Khalib, Amina Ahmed v. M.E.I.
(F.C.T.D.,
no. A-656-92), MacKay, March 30,
1994.Reported: Khalib v.
Canada (Minister of Employment and Immigration) (1994), 24 Imm.
L.R. (2d) 149 (F.C.T.D.)
- Kicheva, Zorka v. M.E.I.
(F.C.T.D.,
no. A-625-92), Denault, December 23,
1993
- Kogan, Meri v. M.C.I.
(F.C.T.D.,
no. IMM-7282-93), Noël,
June 5, 1995
- Kwong, Kam Wang (Kwong, Kum Wun) v.
M.C.I.
(F.C.T.D.,
no. IMM-3464-94), Cullen,
May 1, 1995.
- Lai, Quang v. M.E.I.
(F.C.T.D.,
no. IMM-307-93), McKeown,
May 20, 1994
- Liang, Zhai Kui v. M.E.I.
(F.C.T.D.,
no. IMM-2487-93), Denault,
November 2, 1993
- Lin, Qu Liang v. M.E.I.
(F.C.A.,
no. 93-A-142), Rouleau, July 20,
1993.Reported: Lin v.
Canada (Minister of Employment and Immigration) (1993), 24 Imm.
L.R. (2d) 208 (F.C.T.D.)
- Liu, Ying Yang v. M.C.I.
(F.C.T.D.,
no. IMM-4316-94), Reed, May 16,
1995
- Losolohoh, James Salah v.
M.E.I.
(F.C.T.D.,
no. IMM-2324-94), Wetston,
December 13, 1994
- M.S. v. M.C.I.
(F.C.T.D.,
no. A-132-91), McKeown, August 27,
1996
- Mahalingam, Paramalingam v.
S.G.C. (F.C.T.D.,
no. A-79-93), Joyal, November 2,
1993
- Manihani, Saravjit Singh v.
M.E.I.
(F.C.T.D.,
no. A-753-92), Noël,
September 3, 1993
- Martinez, Oscar v. M.C.I.
(F.C.T.D.,
no. IMM-462-96), Gibson,
June 6, 1996
- Masoudifar, Kambiz v. M.E.I.
(F.C.T.D.,
no. IMM-3677-93), Wetston,
May 25, 1994
- Megag, Sahra Abdilahi v.
M.E.I.
(F.C.T.D.,
no. A-822-92), Rothstein,
December 10, 1993
- Mehmood, Nasir v. M.C.I.
(F.C.T.D.,
no. IMM-2256-97), McGillis,
May 14, 1998
- Mohamed, Abd Almoula Mohamed v.
M.E.I.
(F.C.A.,
no. A-26-92), Strayer, MacGuigan,
Robertson, November 7, 1994
- Mohamed, Abdirizak Hassan v.
M.E.I.
(F.C.A.,
no. A-180-91), Isaac, Linden,
McDonald, April 28, 1994
- Mohamed, Mohamed Ismail v.
M.C.I.
(F.C.T.D.,
no. IMM-5689-93), MacKay,
September 8, 1994
- Mokabila, Guy Lessendjina v.
M.C.I.
(F.C.T.D.,
no. IMM-2660-98), Denault,
June 2, 1999
- Moskvitchev, Vitalli v.
M.C.I.
(F.C.T.D.,
no. IMM-70-95), Dubé,
December 21, 1995
- Moslim, Mahdi Fraih v. S.S.C.
(F.C.T.D.,
no. 93-A-166), McGillis,
February 14, 1994
- 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.)
- Murugiah, Rahjendran v.
M.E.I.
(F.C.T.D.,
no. 92-A-6788), Noël,
May 18, 1993
- Musial v. Canada (Minister
of Employment and Immigration), [1982] 1 F.C.
290 (C.A.)
- Naguleswaran, Pathmasilosini (Naguleswaran) v.
M.C.I.
(F.C.T.D.,
no. IMM-1116-94), Muldoon,
April 19, 1995
- Namitabar v. Canada (Minister
of Employment and Immigration), [1994] 2 F.C.
42 (T.D.)
- Namitabar: Canada (Secretary of State) v.
Namitabar (F.C.A.,
no. A-709-93), Décary,
Hugessen, Desjardins, October 28, 1996
- Nejad, Saeed Javidani-Tabriz v.
M.C.I.
(F.C.T.D.,
no. IMM-4624-93), Richard,
November 16, 1994. 9-13, 9-15
- Nina, Razvan v. M.C.I.
(F.C.T.D.,
no. A-725-92), Cullen, November 24,
1994
- Nithiyanathan, Anusha v.
M.C.I.
(F.C.T.D.,
no. IMM-3402-96), Muldoon,
July 30, 1997
- Olearczyk, Helena v. M.E.I.
(F.C.A.,
no. A-335-88), Hugessen,
MacGuigan, Pratte (dissenting), April 20, 1989.Reported: Olearczyk
v. Canada (Minister of Employment
and Immigration) (1989), 8 Imm.
L.R. (2d) 18 (F.C.A.)
- Omar, Suleiman Ahmed v.
M.C.I.
(F.C.T.D.,
no. A-1615-92), McKeown,
February 7, 1996
- Osman, Ashu Farah v. M.C.I.
(F.C.T.D.,
no. IMM-1295-94), Cullen,
January 26, 1995
- Osoble, Elmi Gure v. M.E.I.
(F.C.T.D.,
no. A-775-92), McKeown, October 29,
1993
- Padilla, Higinio Avalo v.
M.E.I.
(F.C.A.,
no. A-398-89) Mahoney, MacGuigan,
Linden, January 31, 1991.Reported: Padilla v.
Canada (Minister of Employment and Immigration) (1991), 13 Imm.
L.R. (2d) 1 (F.C.A.)
- Papou, Bhatia v. M.E.I.
(F.C.T.D.,
no. A-1040-92), Rouleau,
August 15, 1994
- Popov, Leonid Anatolievich v.
M.E.I.
(F.C.T.D.,
no. IMM-2567-93), Reed, April 11,
1994; Reported: Popov v.
Canada (Minister of Employment and Immigration) (1994), 24 Imm.
L.R. (2d) 242 (F.C.T.D.)
- Pour, Malek Mohammad Nagmeh Abbas v.
M.C.I.
(F.C.T.D.,
no. IMM-3650-95), Gibson,
June 6, 1996.
- Pour-Shariati v. Canada
(Minister of Employment and Immigration), [1995] 1 F.C.
767 (T.D.)
- Pour-Shariati, Dolat v.
M.E.I.
(F.C.A.,
no. A-721-94), MacGuigan,
Robertson, McDonald, June 10, 1997. Reported: Pour-Shariati v.
Canada (Minister of Employment and Immigration) (1997), 39 Imm.
L.R. (2d) 103 (F.C.A.)
- Puvanendiran, Premalatha v.
M.C.I.
(F.C.T.D.,
no. IMM-3595-96), Heald,
July 8, 1997
- Rabbani, Farideh v. M.C.I.
(F.C.T.D.,
no. IMM-2032-96), McGillis,
June 3, 1997
- Rafizade, Rahi v. M.C.I.
(F.C.T.D.,
no. IMM-2570-94), Cullen,
March 7, 1995.Reported: Rafizade v.
Canada (Minister of Citizenship and Immigration) (1995), 30 Imm.
L.R. (2d) 261 (F.C.T.D.)
- Rajaratnam, Logeswaran v.
M.E.I.
(F.C.T.D.,
no. A-678-92), Nadon, June 29,
1994
- Rajasegaram, Arulmalar v.
M.C.I.
(F.C.T.D.,
no. IMM-2440-99), Reed, June
19, 2000
- Rehan, Muhammad Arif v.
M.C.I.
(F.C.T.D.,
no. A-580-92), Gibson, October 18,
1996
- Ripalda, Alma v. M.C.I.
(F.C.T.D.,
no. IMM-455-98), McDonald,
July 15, 1998
- Rizkallah, Bader Fouad v.
M.E.I.
(F.C.A.,
no. A-606-90), Marceau, MacGuigan,
Desjardins, May 6, 1992.Reported: Rizkallah v.
Canada (Minister of Employment and Immigration) (1992), 156 N.R.
1 (F.C.A.)
- Rodriguez-Hernandez, Severino Carlos v.
S.S.C.
(F.C.T.D.,
no. A-19-93), Wetston, January 10,
1994.
- Salibian v. Canada (Minister
of Employment and Immigration), [1990] 3 F.C.
250 (C.A.)
- Sanno, Aminata v. M.C.I.
(F.C.T.D.,
no. IMM-2124-95), Tremblay-Lamer,
April 25, 1996
- 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.)
- Serrano, Roberto Flores et
al. v. M.C.I.
(F.C.T.D.,
no. IMM-2787-98), Sharlow,
April 27, 1999
- Shaikh, Sarwar v. M.C.I.
(F.C.T.D.,
no. IMM-2489-98), Tremblay-Lamer,
March 5, 1999
- Shakarabi, Seyed Hassan v.
M.C.I.
(F.C.T.D.,
no. IMM-2440-95), Reed, March 21,
1996
- Shereen, Agha Agha v. M.E.I.
(F.C.A.,
no. A-913-90), Mahoney, MacGuigan,
Linden, March 21, 1994.
- Shirwa v. Canada (Minister
of Employment and Immigration), [1994] 2 F.C.
51 (T.D.)
- Siad, Dahabo Jama v. M.E.I.
(F.C.T.D.,
no. 92-A-6820), Rothstein,
April 13, 1993.Reported: Siad v.
Canada (Minister of Employment and Immigration) (1993), 21 Imm.
L.R. (2d) 6 (F.C.T.D.)
- Singh, Tejinder Pal v. M.C.I.
(F.C.T.D.,
no. IMM-5294-97), Muldoon,
December 23, 1997 (supplementary reasons)
- Sladoljev, Dejan v. M.E.I.
(F.C.T.D.,
no. IMM-3160-94), Cullen,
July 4, 1995
- Soma, Ester Elvira v. M.C.I.
(F.C.T.D.,
no. A-1129-92), Richard,
November 15, 1994
- Sran, Gurjeet Singh v.
M.C.I.
(F.C.T.D.,
no. IMM-3195-96), McKeown,
July 29, 1997
- Suleman, Adams v. M.E.I.
(F.C.A.,
no. A-1297-91), Desjardins,
Décary, Létourneau, May 5, 1994
- Sulemana, Halilu v. M.C.I.
(F.C.T.D.,
no. IMM-3355-94), Muldoon,
March 17, 1995
- Talman, Natalia v. S.G.C.
(F.C.T.D.,
no. IMM-5874-93), Joyal,
January 11, 1995
- Thathaal, Sabir Hussain v.
S.S.C.
(F.C.T.D.,
no. A-1644-92), McKeown,
December 15, 1993
- Thirunavukkarasu v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C.
589 (C.A.)
- Tkachenko, Alexander v.
M.C.I.
(F.C.T.D.,
no. IMM-802-94), McKeown,
March 27, 1995
- Tocjeva, Tatiana v. M.C.I.
(F.C.T.D.,
no. IMM-4808-96), Cullen,
September 11, 1997
- Toledo, Ruben Fernando San Martin v.
M.E.I.
(F.C.A.,
no. A-205-91), Hugessen,
Desjardins, Décary, March 1, 1993
- Torres, Alejandro Rodriguez v.
M.C.I.
(F.C.T.D.,
no. IMM-503-94), Simpson,
February 1, 1995 (reasons signed April 26, 1995)
- Valentin v. Canada (Minister
of Employment and Immigration), [1991] 3 F.C.
390 (C.A.)
- Velickovic, Slobodan v.
M.C.I.
(F.C.T.D.,
no. IMM-4394-94), Richard,
May 11, 1995
- Velluppillai, Selvaratnam v.
M.C.I.
(F.C.T.D.,
no. IMM-2043-99), Gibson,
March 9, 2000
- Vidhani v. Canada (Minister
of Citizenship and Immigration), [1995] 3 F.C.
60 (T.D.)
- Vyramuthu, Sanmugarajah v.
S.G.C. (F.C.T.D.,
no. IMM-6277-93), Rouleau,
January 26, 1995
- Ward: Canada (Attorney General) v.
Ward, [1993] 2 S.C.R.
689
- Wickramasinghe v. Canada
(Minister of Citizenship and Immigration) (F.C.T.D.,
no. IMM-2489-01), Martineau,
April 26, 2002; 2002 FCT
470
- Yassodaran, Magalingam v.
M.C.I.
(F.C.T.D.,
no. IMM-1677-95), Reed, April 4,
1996
- Zheng v. Canada (Minister
of Citizenship and Immigration) (F.C.T.D.,
no. IMM-2415-01), Martineau,
April 19, 2002; 2002 FCT
448
- Zhu, Yong Liang v. M.E.I.
(F.C.A.,
no. A-1017-91), MacGuigan,
Linden, Robertson, January 28, 1994
- Zolfagharkhani v. Canada
(Minister of Employment and Immigration), [1993] 3 F.C.
540 (C.A.)
- Salibian v.
Canada (Minister of Employment and Immigration), [1990] 3 F.C.
250 (C.A.).
- Salibian, ibid., at 258, per
Décary J.A.
- See also Olearczyk, Helena v.
M.E.I.
(F.C.A.,
no. A-335-88), Hugessen,
MacGuigan, Pratte (dissenting), April 20, 1989.Reported: Olearczyk
v. Canada (Minister of Employment
and Immigration) (1989), 8 Imm.
L.R. (2d) 18 (F.C.A.).
In Mokabila, Guy Lessendjina v.
M.C.I.
(F.C.T.D.,
no. IMM-2660-98), Denault,
June 2, 1999, the panel required the claimant to show that he himself
would be persecuted in future. The application for judicial review was
allowed.
- Salibian, supra, footnote 1,
at 259, per Décary, J.A.; Hathaway, James C., The Law of
Refugee Status, (Toronto: Butterworths, 1991), page 97.
- Rizkallah, Bader Fouad v.
M.E.I.
(F.C.A.,
no. A-606-90), Marceau, MacGuigan,
Desjardins, May 6, 1992.Reported: Rizkallah v.
Canada (Minister of Employment and Immigration) (1992), 156 N.R.
1 (F.C.A.).
- Rizkallah, ibid., at 1-2, per
MacGuigan J.A.
- Abdulle, Sadia Mohamed v.
M.E.I.
(F.C.T.D.,
no. A-1440-92), Nadon, September 16,
1993, at 4.See also: Mohamed, Abdirizak Hassan v.
M.E.I.
(F.C.A.,
no. A-180-91), Isaac, Linden,
McDonald, April 28, 1994; Hassan, Jamila Mahdi v.
M.E.I.
(F.C.A.,
no. A-757-91), Isaac, Marceau,
McDonald, August 25, 1994, at 4.Reported: Hassan v.
Canada (Minister of Employment and Immigration) (1994), 174 N.R.
74 (F.C.A.);
and Farah, Abdul-Qadir v.
M.C.I.
(F.C.T.D.,
no. A-428-92), Noël,
January 31, 1995, at 4.
- Reference should be made to the Guidelines on
Civilian Non-Combatants Fearing Persecution in Civil War Situations,
issued by the IRB
Chairperson pursuant to section 65(3) of the Immigration Act,
on March 7, 1996, as continued in effect by the Chairperson on
June 28, 2002 under the authority found in section 159(1)(h) of the
Immigration and Refugee Protection Act. Note that the comparative
approach is not recommended in the Chairperson's Guidelines.
- Perhaps the most clear-cut adopting of a comparative
approach is found in Isa, Sharmarka Ahmed v.
S.S.C.
(F.C.T.D.,
no. IMM-1760-94), Reed, February 16,
1995, at 4-5.
Many if not most civil war situations are racially or ethnically
based.If racially motivated attacks in civil war circumstances constitute
a ground for convention refugee status, then, all individuals on either
side of the conflict will qualify. The passages quoted by the Board
from [paragraph 164 of] the United Nations Handbook
indicates
that this is not the purpose of the 1951 Convention.
The Isa decision was cited approvingly in Ali, Farhan
Omar v. M.C.I.
(F.C.T.D.,
no. A-1652-92), McKeown,
June 26, 1995. Mr. Justice
McKeown did not refer to any particular passage in Isa.See
also: Siad, Dahabo Jama v.
M.E.I.
(F.C.T.D.,
no. 92-A-6820), Rothstein,
April 13, 1993.Reported: Siad v.
Canada (Minister of Employment and Immigration) (1993), 21 Imm.
L.R. (2d) 6 (F.C.T.D.);
Barisic, Rajko v. M.C.I.
(F.C.T.D.,
no. IMM-7275-93), Noël,
January 26, 1995.
In Ali, Shaysta-Ameer v.
M.C.I.
(F.C.T.D.,
no. IMM-3404-95), McKeown,
October 30, 1996.Reported: Ali v.
Canada (Minister of Citizenship and Immigration) (1996), 36 Imm.
L.R. (2d) 34 (F.C.T.D.),
the Trial Divison certified the following question: "Are refugee claimants
excluded from the definition of Convention refugee if all groups in
their country, including the group of which they are members, are
both victims and perpetrators of human rights violations in the context
of civil war?" See, infra, footnote 20.
- Requiring a worse predicament might mean any
one of several things.To succeed, a claimant might have to establish:
(i) that the claimant's level of risk is greater than the risk level
of persons in other groups, or (ii) that the claimant's risk level is
greater than the risk level of other persons in the claimant's own group;
or (iii) that the claimant is at risk of suffering harm greater than
that which threatens others.
Regarding (i), see: Siad, supra, footnote 9, at
9 and 10-11; Omar, Suleiman Ahmed v.
M.C.I.
(F.C.T.D.,
no. A-1615-92), McKeown,
February 7, 1996, at 2; but see Janjicek, Davorin v.
M.C.I.
(F.C.T.D.,
no. IMM-2242-94), Richard,
March 28, 1995, where the parties consented to an order which
"remitted [the matter] for a new hearing on the basis that a Convention
refugee claimant need not establish that her or his ethnic group is
at greater risk than members of other ethnic groups, in accordance
with
Salibian v.
M.E.I."
Regarding (ii), see Hersi, Nur Dirie v.
M.E.I.
(F.C.A.,
no. A-1231-91), MacGuigan,
Linden, McDonald, November 4, 1993, at 1: the parties consented
to the conclusion that the Refugee Division had adopted a principle
at odds with Salibian, supra, footnote 1, when it
imposed this requirement.See also: Ahmed, Faisa Talarer v.
M.E.I.
(F.C.T.D.,
no. A-1017-92), Noël,
November 2, 1993, at 3; Abdi, Jama Osman v.
M.E.I.
(F.C.T.D.,
no. A-1089-92), Simpson,
November 18, 1993, at 3-4; Shirwa v.
Canada (Minister of Employment and Immigration), [1994] 2 F.C.
51 (T.D.), at
64; Ali, Hassan Isse v.
M.E.I.
(F.C.T.D.,
no. IMM-39-93), MacKay,
June 9, 1994, at 7; Hassan, supra, footnote
7, at 3-4.
- The claimant's group must be one which is definable
in terms of a Convention characteristic.
- For example: Shereen, Agha Agha v.
M.E.I.
(F.C.A.,
no. A-913-90), Mahoney, MacGuigan,
Linden, March 21, 1994; Mohamed, Abdirizak Hassan,
supra, footnote 7; Hersi, Udbi (Ubdi) Hashi v.
M.E.I.
(F.C.T.D.,
no. 92-A-6574), Joyal, May 5,
1993, at 4; Osoble, Elmi Gure v.
M.E.I.
(F.C.T.D.,
no. A-775-92), McKeown, October 29,
1993; Abdulle, Shamsa v. M.E.I.
(F.C.T.D.,
no. A-1298-92), Nadon, December 3,
1993; and Balayah, Khadar Yusuf v.
M.C.I.(F.C.T.D.,
no. A-1395-92), Simpson,
April 24, 1996 (reasons signed July 29, 1996), at 8-10.
- For example: Ali, Hassan Isse, supra,
footnote 10, at 7-8; and Hotaki, Khalilullah v.
M.E.I.
(F.C.T.D.,
no. IMM-6659-93), Gibson,
November 22, 1994, at 4.
- For example: Ahmed, Mohamed Hassan v.
M.E.I.
(F.C.T.D.,
no. A-818-92), McKeown, May 20,
1994; and Mohamed, Mohamed Ismail v.
M.C.I.
(F.C.T.D.,
no. IMM-5689-93), MacKay,
September 8, 1994. See also Aden, Khadija Hilowle v.
M.C.I.
(F.C.A.,
no. A-602-94), MacGuigan
(dissenting), Robertson, McDonald, June 10, 1997, affirming (F.C.T.D.,
no. A-1018-92), Noël,
October 27, 1994.
- Recommended in the Chairperson's Guidelines,
supra, footnote 8, at 7.
- Salibian, supra, footnote 1,
points out that there may be a nexus in a civil war context. Rizkallah,
supra, footnote 5, may be seen as adding to Salibian
little more than a reminder that nexus may also be absent in such a
situation. Simple political instability does not make for a well-founded
fear of persecution: Megag, Sahra Abdilahi v.
M.E.I.
(F.C.T.D.,
no. A-822-92), Rothstein,
December 10, 1993, at 2.See also Ezeta, Octavio Alberto del
Busto v. M.C.I.
(F.C.T.D.,
no. IMM-2021-95), Cullen,
February 15, 1996, at 3-4, where the claimant's difficulties were
a result of the unsettled and dangerous political climate in Peru, rather
than being linked to a Convention ground.
- In Khalib, Amina Ahmed v.
M.E.I.
(F.C.T.D.,
no. A-656-92), MacKay, March 30,
1994.Reported: Khalib v.
Canada (Minister of Employment and Immigration) (1994), 24 Imm.
L.R. (2d) 149 (F.C.T.D.),
the claimants' home area, in which the claimants' Issaq clan predominated,
had been sown with mines by the former Somali government, allegedly
with the intention of harming Issaqs.Many mines remained, and the claimants
feared injury. The Refugee Division held that the danger was one faced
indiscriminately by all people in the area; and in upholding the decision,
the Court noted that while Issaqs may have been the majority, the danger
was nevertheless faced by all.
- Canada (Attorney General) v.
Ward, [1993] 2 S.C.R.
689 at 747, per La Forest J., "The examination of the circumstances
should be approached from the perspective of the persecutor, since that
is determinative in inciting the persecution."
- "The Board cannot hide behind the civil war situation
and automatically find that claimants from Somalia are not refugees."
Osman, Ashu Farah v. M.C.I.
(F.C.T.D.,
no. IMM-1295-94), Cullen,
January 26, 1995, at 5.
- Ali, Shaysta-Ameer v.
M.C.I.
(F.C.A.,
no. A-772-96), Décary,
Stone, Strayer, January 12, 1999.
- supra, footnote 8.
- Fathi-Rad, Farideh v.
S.S.C.
(F.C.T.D.,
no. IMM-2438-93), McGillis,
April 13, 1994, at 4.See also Namitabar v.
Canada (Minister of Employment and Immigration), [1994] 2 F.C.
42 (T.D.), at 46.Compare
Altawil, Anwar Mohamed v.
M.C.I.
(F.C.T.D.,
no. IMM-2365-95), Simpson,
July 25, 1996. In Canada (Secretary of State) v.
Namitabar (F.C.A.,
no. A-709-93), Décary,
Hugessen, Desjardins, October 28, 1996, the Court overturned the
Trial Division on the basis that the CRDD
credibility findings were not ambiguous. With respect to the issue of
wearing veils in Iran, the Court was of the view that "the Refugee
Division may have expressed itself incorrectly [but] that has no importance
in the case at bar since the female [claimant] voluntarily complied
with the clothing code and did not even display reluctance to do so
"
- Musial v.
Canada (Minister of Employment and Immigration), [1982] 1 F.C.
290 (C.A.). Speaking
for the majority at 294, Pratte J. said:
A person who is punished
for having violated an ordinary law of general application, is punished
for the offence he has committed, not for the political opinions that
may have induced him to commit it.
[A] person who has violated
the laws of his country of origin by evading ordinary military service,
and who merely fears prosecution and punishment for that offence in
accordance with those laws, cannot be said to fear persecution for
his political opinions even if he was prompted to commit that offence
by his political beliefs.
- Zolfagharkhani v.
Canada (Minister of Employment and Immigration), [1993] 3 F.C.
540 (C.A.).
- Zolfagharkhani, ibid., at 549.See
also Fathi-Rad, supra, footnote 22, at 4.
- Zolfagharkhani, supra, footnote
24, at 549. Castaneda, Robert Martinez v.
M.E.I.
(F.C.T.D.,
no. A-805-92), Noël,
October 19, 1993, at 3 (exit laws).
- Zolfagharkhani, supra, footnote
24, at 552.
- In Cheung v.
Canada (Minister of Employment and Immigration), [1993] 2 F.C.
314 (C.A.), at
319, Linden J.A. said that the Refugee Division "wrongly required that
a 'persecutory intent' be present, whereas a 'persecutory effect' suffices."
- Compare Suleman, Adams v.
M.E.I.
(F.C.A.,
no. A-1297-91), Desjardins,
Décary, Létourneau, May 5, 1994, where the Court,
without referring to any authority, stated, at 2:
We are not certain that
the Refugee Division analysed the claimant's acts in the context
in which he committed them, and that it considered the question of
whether his acts, although illegal, did not have a political connotation
or were not committed for political reasons or in a political context
that could then found a reasonable fear of persecution based on political
opinion, whether real or imputed by the agent of persecution.
Thus, it may be necessary to analyze the actions of the claimant
and the state in context.See also Masoudifar, Kambiz v.
M.E.I.
(F.C.T.D.,
no. IMM-3677-93), Wetston,
May 25, 1994, at 2-3.Compare Antonio, Pacato Joao v.
M.E.I.
(F.C.T.D.,
no. IMM-1072-93), Nadon,
September 27, 1994, at 6-8 (re: treason, espionage and sabotage).
- See Zhu, Yong Liang v.
M.E.I.
(F.C.A.,
no. A-1017-91), MacGuigan,
Linden, Robertson, January 28, 1994, at 2-3. In Daghighi, Malek
v. M.C.I.
(F.C.T.D.,
no. A-64-93), Reed, November 16,
1995, the Refugee Division had held that the Iranian claimant had simply
run afoul of "laws or a policy of general application founded on fundamentalist
principles of Islamic law".But evidence indicated that the claimant
had incurred the authorities' displeasure for Western tendencies and
unacceptable religious views, and that he had been obliged to undergo
religious instruction. The Court rejected the conclusion that his difficulties
were not related to a Convention ground.
In Chan (F.C.A.),
Mr. Justice Heald ruled
that punishment for breach of a government policy is not punishment
for political opinion if the breach will be perceived by the authorities
not as a challenge to their authority but only as a breach of a law:
Chan v. Canada (Minister
of Employment and Immigration), [1993] 3 F.C.
675, at 695; (1993), 20 Imm.
L.R. (2d) 181 (C.A.).
See also: Barima v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C.
30 (T.D.), at
37; Liang, Zhai Kui v. M.E.I.
(F.C.T.D.,
no. IMM-2487-93), Denault,
November 2, 1993, at 3.
- Compare Drozdov, Natalia v.
M.C.I.
(F.C.T.D.,
no. IMM-94-94), Joyal, January 9,
1995, at 5.
- Chan v.
Canada (Minister of Employment and Immigration), [1995] 3 S.C.R.
593, per La Forest J. (dissenting) at 632.
- Cheung, supra, footnote 28,
at 323, per Linden J.A.See also Fathi-Rad, supra,
footnote 22, at 4-5.Compare Chan (F.C.A.),
supra, footnote 30, at 724, per Desjardins J.A.
- Chan (S.C.C.),
supra, footnote 32, per La Forest J. (dissenting) at 634.
- Chan (S.C.C.),
ibid., per La Forest J. (dissenting) at 631
- Namitabar (T.D.),
supra, footnote 22; Rodriguez-Hernandez, Severino Carlos
v. S.S.C.
(F.C.T.D.,
no. A-19-93), Wetston, January 10,
1994, at 4; Denis, Juan Carlos Olivera v.
S.S.C.
(F.C.T.D.,
no. IMM-4920-93), Nadon,
February 18, 1994, at 4, Fathi-Rad, supra, footnote
22, at 4-5. In Namitabar
(F.C.A.),
supra, footnote 22, the Court overturned the Trial Division
on the basis that the CRDD
credibility findings were not ambiguous. With respect to the issue of
wearing veils in Iran, the Court was of the view that "the Refugee
Division may have expressed itself incorrectly [but] that has no importance
in the case at bar since the female [claimant] voluntarily complied
with the clothing code and did not even display reluctance to do so
"
See also Rabbani, Farideh v.
M.C.I.
(F.C.T.D.,
no. IMM-2032-96), McGillis,
June 3, 1997.
- Antonio, supra, footnote 29,
at 11-12.See also, Chu, Zheng-Hao v.
M.C.I.
(F.C.T.D.,
no. IMM-5159-94), Jerome,
January 17, 1996, at 5.See also Singh, Tejinder Pal v.
M.C.I.
(F.C.T.D.,
no. IMM-5294-97), Muldoon,
December 23, 1997 (supplementary reasons), at paragraphs 9-13.
- Cheung, supra, footnote 28,
at 322.See also: Lin, Qu Liang v.
M.E.I.
(F.C.A.,
no. 93-A-142), Rouleau, July 20,
1993.Reported: Lin v.
Canada (Minister of Employment and Immigration) (1993), 24 Imm.
L.R. (2d) 208 (F.C.T.D.);
and Chan (S.C.C.),
supra, footnote 32, per Major J. at 658. Also regarding extra-judicial
punishment, see Tocjeva, Tatiana v.
M.C.I.
(F.C.T.D.,
no. IMM-4808-96), Cullen,
September 11, 1997, at 5.
- Regarding extra-judicial punishment, see: Padilla,
Higinio Avalo v. M.E.I.
(F.C.A.,
no. A-398-89) Mahoney, MacGuigan,
Linden, January 31, 1991.Reported: Padilla v.
Canada (Minister of Employment and Immigration) (1991), 13 Imm.
L.R. (2d) 1 (F.C.A.),
at 4; Cheung, supra, footnote 28, at 323; Addo,
Samuel v. M.E.I.
(F.C.A.,
no. A-614-89), Mahoney, Hugessen,
Gray, May 7, 1992; and Moslim, Mahdi Fraih v.
S.S.C.
(F.C.T.D.,
no. 93-A-166), McGillis,
February 14, 1994, at 2.Regarding lack of due process, see: Namitabar,
supra, footnote 22, at 47.
An enactment may itself allow for denial of due process, thereby
increasing the chances that persecution will occur; see, for example,
Balasingham, Satchithananthan v.
S.S.C.
(F.C.T.D.,
no. IMM-2469-94), Rothstein,
February 17, 1995, at 2-3.
In 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.),
the Court held that the claimant's fear of extra-judicial punishment,
which was based partly on alleged irregularities in prosecution, was
not well-founded. Furthermore, the Court stated, at 9, that "
Canadian tribunals have to assume a fair and independent judicial
process in the foreign country. In the case of a non-democratic State
contrary evidence might be readily forthcoming, but in relation to
a democracy like the United States contrary evidence might have to
go to the extent of substantially impeaching
[some key element
of the judicial system]." See also page 11.
- Kicheva, Zorka v.
M.E.I.
(F.C.T.D.,
no. A-625-92), Denault, December 23,
1993, at 2. The fact of prosecution might conceivably be objectionable
where it would entail the claimant's being prosecuted a second time
for an offence already dealt with conclusively (i.e.,
a situation of "double jeopardy"), however, see Chu, supra,
footnote 37, especially at 4.
- Mohamed, Abd Almoula Mohamed v.
M.E.I.
(F.C.A.,
no. A-26-92), Strayer, MacGuigan,
Robertson, November 7, 1994. The Court offered little elaboration
in its brief reasons, and did not clearly articulate its measure(s)
of validity.See also Diab, Wadih Boutros v.
M.E.I.
(F.C.A.,
no. A-688-91), Isaac, Marceau,
McDonald, August 24, 1994, at 3.
- Drozdov, supra, footnote 31,
at 5.
- In the case of a claimant with links to, for
example, an organization which uses violence to achieve political ends,
it may be appropriate to consider whether Article 1F applies.
- Cheung, supra footnote 28,
at 323, per Linden J.A.
- Thirunavukkarasu v.
Canada (Minister of Employment and Immigration), [1994] 1 F.C.
589 (C.A.).
- Thirunavukkarasu, ibid., at
600, per Linden J.A.
- Thirunavukkarasu, ibid., at
601, per Linden J.A.
- Toledo, Ruben Fernando San Martin v.
M.E.I.
(F.C.A.,
no. A-205-91), Hugessen,
Desjardins, Décary, March 1, 1993.See also Singh, Tejinder
Pal, supra, footnote 37, at paragraph 15, though compare paragraph
24.
- For example: Kaler, Minder Singh v.
M.E.I.
(F.C.T.D.,
no. IMM-794-93), Cullen,
February 3, 1994, at 5-6; Rajaratnam, Logeswaran v.
M.E.I.
(F.C.T.D.,
no. A-678-92), Nadon, June 29,
1994, at 8; Sulemana, Halilu v.
M.C.I.
(F.C.T.D.,
no. IMM-3355-94), Muldoon,
March 17, 1995, at 13; Iramachanthiran, Irathinam v.
M.C.I.
(F.C.T.D.,
no. IMM-2789-95), Simpson,
April 24, 1996 (reasons signed July 29, 1996), at 7. In Sran,
Gurjeet Singh v. M.C.I.
(F.C.T.D.,
no. IMM-3195-96), McKeown,
July 29, 1997, where the claimant had been repeatedly and badly tortured
while in police custody, the Court observed: "Torture can never be excused
at any time and it is insufficient to characterize it simply as abuse."
- For example: Manihani, Saravjit Singh v.
M.E.I.
(F.C.T.D.,
no. A-753-92), Noël,
September 3, 1993, at 3; Naguleswaran, Pathmasilosini (Naguleswaran)
v. M.C.I.
(F.C.T.D.,
no. IMM-1116-94), Muldoon,
April 19, 1995. In Naguleswaran, at 4-5, the Court commented
that those belonging to militant organizations ought not to be "treated
with front-parlour civility".
- Brar, Jaskaran Singh v.
M.E.I.
(F.C.T.D.,
no. IMM-292-93), Rouleau,
September 8, 1993, at 3; Papou, Bhatia v.
M.E.I.
(F.C.T.D.,
no. A-1040-92), Rouleau,
August 15, 1994, at 3.Note that both of these cases were decided
by the same judge.See also Naguleswaran, supra, footnote
50,at 4-6: Muldoon J. expressed the view that "western concepts of the
administration of justice will just not work in some other countries"
(emphasis omitted), given the need of those countries to safeguard public
security, cope with civil war, and combat terrorism. And see Nithiyanathan,
Anusha v. M.C.I.
(F.C.T.D.,
no. IMM-3402-96), Muldoon,
July 30, 1997. at 2-3.
- Alfred, Rayappu v.
M.E.I.
(F.C.T.D.,
no. IMM-1466-93), MacKay,
April 7, 1994, at 5: "The tribunal did not assess the physical
mistreatment of the applicant by Colombo police in terms of persecution.Under
the International Covenant on Civil and Political Rights [,
] Articles 7 and 4 make clear that no one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment even in times
of public emergency." See also Kanapathypillai, Indrarajan v.
M.C.I.
(F.C.T.D.,
no. IMM-3724-96), Heald,
July 11, 1997, at 3.
- Brar, supra, footnote 51, at
3.
- Mahalingam, Paramalingam v.
S.G.C. (F.C.T.D.,
no. A-79-93), Joyal, November 2,
1993, at 6; Naguleswaran, supra footnote 50, at 5-6.But
see Bragagnini-Ore, Gianina Evelyn v.
S.S.C.
(F.C.T.D.,
no. IMM-2243-93), Pinard,
February 4, 1994, at 2.While the statement "Short detentions for
the purpose of preventing disruption or dealing with terrorism do not
constitute persecution" may be generally true, the CRDD
must take into account the special circumstances of the claimant, in
particular his age and, given that age, the impact of his prior experiences
as forecasted in a psychological report.See Velluppillai, Selvaratnam
v. M.C.I.
(F.C.T.D.,
no. IMM-2043-99), Gibson,
March 9, 2000.
- El Khatib, Naif v.
M.C.I.
(F.C.T.D.,
no. IMM-5182-93), McKeown,
September 27, 1994, at 4; Joseph, Christy Shanthakumar v.
S.S.C.
(F.C.T.D.,
no. IMM-7503-93), MacKay,
November 18, 1994, at 3-4.
- Murugiah, Rahjendran v.
M.E.I.
(F.C.T.D.,
no. 92-A-6788), Noël,
May 18, 1993, at 3-4; Soma, Ester Elvira v.
M.C.I.
(F.C.T.D.,
no. A-1129-92), Richard,
November 15, 1994, at 3; Kandiah, Palachandran v.
M.C.I.
(F.C.T.D.,
no. IMM-7125-93), Cullen,
December 7, 1994, at 7; Balasubramaniam, Sriharan v.
M.C.I.
(F.C.T.D.,
no. IMM-5414-93), Muldoon,
December 13, 1994, at 4-6; Yassodaran, Magalingam v.
M.C.I.
(F.C.T.D.,
no. IMM-1677-95), Reed, April 4,
1996, at 2; Iramachanthiran, supra, footnote 49, at
7-8; Nithiyanathan, supra,
footnote 51, at 3; and Puvanendiran, Premalatha v.
M.C.I.
(F.C.T.D.,
no. IMM-3595-96), Heald,
July 8, 1997, at page 2.
- In Wickramasinghe v.
Canada (Minister of Citizenship and Immigration) (F.C.T.D.,
no. IMM-2489-01), Martineau,
April 26, 2002; 2002 FCT
470, the Trial Division, following Thirunavukkarasu, supra,
footnote 45, the Trial Division held "that beatings, arbitrary arrests
and detention of suspects, even in a state of emergency, can never be
justified or considered a legitimate part of investigations into criminal
or terrorist activities, however dangerous the suspects are thought
to be."
- Chan (S.C.C.),
supra, footnote 32, per Major J., at 664-5 and 666-7.
- Chan (S.C C.), ibid., per Major
J., at 658.See also page 666.
- Valentin v.
Canada (Minister of Employment and Immigration), [1991] 3 F.C.
390 (C.A.), at
394, and Nejad, Saeed Javidani-Tabriz v.
M.C.I.
(F.C.T.D.,
no. IMM-4624-93), Richard,
November 16, 1994, at 3-4 (re exit laws); Butt, Abdul Majid
(Majeed) v. S.G.C. (F.C.T.D.,
no. IMM-1224-93), Rouleau,
September 8, 1993 (re Pakistan's Ordinance XX), Drozdov,
supra, footnote 31, at 5 (re stripping of citizenship); John,
Lindyann v. M.C.I.
(F.C.T.D.,
no. IMM-2833-95), Simpson,
April 24, 1996 (reasons signed July 29, 1996), at 10, 17-19
and 20 (re law criminalizing homosexual acts).
More generally, note Torres, Alejandro Rodriguez v.
M.C.I.
(F.C.T.D.,
no. IMM-503-94), Simpson,
February 1, 1995 (reasons signed April 26, 1995), at 4-5:
"In my view, refugee claims are not to be considered on a theoretical
level which ignores the realities of the evidence
. [The Refugee
Division] was entitled to make a practical assessment of the possibility
of the Applicant facing future persecution."
- See, for example, Cheng v.
Canada (Minister of Citizenship and Immigration) (F.C.T.D.,
no. IMM-6589-00), Pinard,
March 1, 2002; 2002 FCT
211 and Zheng v. Canada (Minister
of Citizenship and Immigration) (F.C.T.D.,
no. IMM-2415-01), Martineau,
April 19, 2002; 2002 FCT
448.
- There may be an overstay law which applies to
all residents of a country or to all of the country's citizens, and
which provides for penalties of fine or incarceration.Alternatively,
a law may provide that a non-citizen resident (including a stateless
resident) who travels abroad must return and report periodically, and
that failure to do so will result in the loss of resident status and
the right to return: e.g.
Altawil, supra, footnote 22.
- For an example of this last situation, see Losolohoh,
James Salah v. M.E.I.
(F.C.T.D.,
no. IMM-2324-94), Wetston,
December 13, 1994.
- Valentin, supra, footnote 60,
at 392.
- Valentin, supra, footnote 60,
at 394-396.
- However, see M.S. v.
M.C.I.
(F.C.T.D.,
no. A-132-91), McKeown, August 27,
1996, at 4. The Court suggested that the severity of the penalty might
be a very significant factor.See also Asadi, Sedigheh v.
M.C.I.
(F.C.T.D.,
no. IMM-1921-96), Lutfy,
April 18, 1997, at 4.
- Shakarabi, Seyed Hassan v.
M.C.I.
(F.C.T.D.,
no. IMM-2440-95), Reed, March 21,
1996, at 2 and 3.See also Asadi, supra, footnote 66,
at 4.
- Castaneda, supra, footnote
26, at 4-5 (Cuba).See also Moslim, supra, footnote
39. In Chow, Wing Sheung v.
M.C.I.
(F.C.T.D.,
no. A-1476-92), McKeown,
March 26, 1996, at 3, the Court noted that the Refugee Division
had found that neither the maximum prescribed penalty nor the penalties
actually imposed were harsh.
- For an example of a situation which was found
not to constitute desertion, see Nejad, supra, footnote
60, at 3.
- Musial, supra, footnote 23,
at 292-293, per Thurlow C.J.
- Popov, Leonid Anatolievich v.
M.E.I.
(F.C.T.D.,
no. IMM-2567-93), Reed, April 11,
1994; Reported: Popov v.
Canada (Minister of Employment and Immigration) (1994), 24 Imm.
L.R. (2d) 242 (F.C.T.D.),
at 244.
- Garcia, Marvin Balmory Salvador v.
S.S.C.
(F.C.T.D.,
no. IMM-2521-93), Pinard,
February 4, 1994. See also Barisic, supra, footnote
9, at 4, where the claimant avoided conscription into the Croatian army
because he did not wish to kill people with whom he had lived, the Court
said that the Refugee Division was entitled to conclude that his motives
were those shared by all reluctant combatants. In Haoua, Mehdi v.
M.C.I.
(F.C.T.D.,
no. IMM-698-99), Nadon, February
21, 2000, Nadon J. stated at para. 16 "
I also note that military
service does not, in itself, constitute persecution.Rather, the Applicant's
claim hinged on the fear that he would be forced to commit atrocities
if he were drafted.If there is no evidence of atrocities, as there was
none in this case, there is no evidence of persecution."
- Zolfagharkhani, supra, footnote
24.
- Musial, supra, footnote 23,
also dealt with military service but Zolfagharkhani, supra,
footnote 24 has replaced Musial as the chief authority not
only with respect to the more encompassing topic of laws of general
application, but also with respect to this particular example of such
laws.See Chapter 9, section 9.3.2.
- See Chapter 9, section 9.3.2.
- Zolfagharkhani, supra, footnote
24, at 550 and 552.
- See Blagoev, Stoycho Borissov v.
M.E.I.
(F.C.A.,
no. A-827-91), Heald, Desjardins,
Linden, July 19, 1994, at 2, where the Court was of the view that
the claimant, a deserter, had not established that the applicable law,
"being a law of general application, would be applied otherwise than
on a neutral and equitable basis." Also Ahani, Roozbeh v.
M.C.I.
(F.C.T.D.,
no. IMM-4985-93), MacKay,
January 4, 1995, at 5, where the Court said that the Refugee Division
was entitled to find that the detentions and any associated mistreatment
were related to the claimant's failure to complete his military service,
rather than to his Kurdish origin or related political views.On the
other hand, see Diab, supra, footnote 41, at 3, where
the Court held that the Refugee Division erred in that it failed to
consider whether the claimant's opposition to serving in a particular
militia (which had press-ganged him) constituted a political opinion
which could result in persecution.
- Zolfagharkhani, supra, footnote
24, at 553-556.
- Sladoljev, Dejan v.
M.E.I.
(F.C.T.D.,
no. IMM-3160-94), Cullen,
July 4, 1995, at 4. The Court did not mention Zolfagharkhani,
supra, footnote 24.
- See also paragraphs 170 to 174 of the UNHCR
Handbook.
- Popov, supra, footnote 71,
at 244.See also Tkachenko, Alexander v.
M.C.I.
(F.C.T.D.,
no. IMM-802-94), McKeown,
March 27, 1995, at 4.
- Zolfagharkhani, supra, footnote
24, at 553-555.
- Ciric v.
Canada (Minister of Employment and Immigration), [1994] 2 F.C.
65 (T.D.). In Hophany,
Parwiz v. M.E.I.
(F.C.T.D.,
no. A-802-92), Jerome, July 19,
1994, at 3-4 there appears what might be a statement to the contrary.
However, the exact meaning of the statement is uncertain and, in any
event, the views expressed by the Court of Appeal in Zolfagharkhani,
supra, footnote 24 - which was not mentioned in Hophany
- must take precedence.
- Zolfagharkhani, supra, footnote
24, at 555. See also: Diab, supra, footnote 41, at
3 (possible crimes against humanity); and Ciric, supra,
footnote 83, at 74-8. It is not enough for the claimant to show that
a particular conflict has been condemned by the international community;
it must also be the case that his refusal to participate was based on
the condemnation: Sladoljev, supra footnote 79, at
4. And there must be a reasonable chance that the claimant would indeed
be required to participate in the objectionable operations: Zolfagharkhani,
supra, footnote 24, at 547-548; Velickovic, Slobodan v.
M.C.I.
(F.C.T.D.,
no. IMM-4394-94), Richard,
May 11, 1995, at 2 and 3.
Pronouncements from organizations such as Amnesty International,
Helsinki Watch, and the Red Cross may constitute condemnation by the
world community; condemnation by the United Nations is not necessary:
Ciric, supra, footnote 83, at 75.
A non-defensive incursion into foreign territory is military activity
that violates basic international standards, and United Nations condemnation
of such an incursion is condemnation of the incursion as contrary
to basic rules of human conduct: Al-Maisri, Mohammed v.
M.E.I.
(F.C.A.,
no. A-493-92), Stone, Robertson,
McDonald, April 28, 1995, at 3-4.
- Popov, supra, footnote 71,
at 245. There must be a probability, and not merely a possibility, that
the military will engage in the offending activity: Hashi, Haweya
Abdinur v. M.C.I.
(F.C.T.D.,
no. IMM-2597-96), Muldoon,
July 31, 1997, at 5, alluding to page 555 of Zolfagharkhani.
- Zolfagharkhani, supra, footnote
24, at 555.
- Diab, supra, footnote 41, at
2-3.
- Talman, Natalia v.
S.G.C. (F.C.T.D.,
no. IMM-5874-93), Joyal,
January 11, 1995, at 7.See also: Popov, supra,
footnote 71, at 244-5; Frid, Mickael v.
M.C.I.
(F.C.T.D.,
no. IMM-6694-93), Rothstein,
December 15, 1994, at 3.
- Frid, ibid., at 3. See also
Baranchook, Peter v. M.C.I.
(F.C.T.D.,
no. IMM-876-95), Tremblay-Lamer,
December 20, 1995; and Moskvitchev, Vitalli v.
M.C.I.
(F.C.T.D.,
no. IMM-70-95), Dubé,
December 21, 1995, where the Court upheld decisions of Post-Claim
Determination Officers (PCDOs).
In Baranchook, at 4, the PCDO
compared the Israeli penalty for refusing to serve with international
standards, and concluded that the penalty was neither excessive nor
draconian. In Moskvitchev, at 3, the PCDO
found that a sentence of six months to five years for draft evasion
in Moldova would not be inhuman [sic ] or extreme. [Section
2(1) of the Immigration Regulations speaks of "inhumane treatment"
and "extreme sanctions". ]
- In Al-Maisri, supra, footnote
84, the claimant had deserted from an army which was participating in
an operation condemned as contrary to basic rules of human conduct,
and the Court noted that "the punishment for desertion which would likely
be visited upon the [claimant]
, whatever that punishment
might be, would amount to persecution." (at 3, emphasis added).
- 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.).
See also Moskvitchev, supra, footnote 89, at 3.
- Talman, supra, footnote 88;
Kogan, Meri v. M.C.I.
(F.C.T.D.,
no. IMM-7282-93), Noël,
June 5, 1995, at 5 and 7. The operative idea seems to be that the
claimant should be considered bound by his own voluntary decision.However,
the fact that the claimant chose to immigrate despite knowing of compulsory
service might also raise a question as to the strength (or even genuineness)
of his conviction.
On the other hand, see Agranovski, Vladislav v.
M.C.I.
(F.C.T.D.,
no. IMM-2709-95), Tremblay-Lamer,
July 3, 1996, at 5: at the time of immigrating to Israel,
the claimant had known that there was compulsory military service,
and the Refugee Division therefore did not believe he had reasons
of principle for refusing to serve; however, the Court overturned
this conclusion, noting that the claimant had been brought to the
country as a minor by his parents, and that he had thought he would
be able to avail himself of alternative service.
- Cheung, supra, footnote 28.
- Chan (F.C.A.),
supra, footnote 30.
- Ward, supra, footnote 18.
- Chan (S.C.C.),
supra, footnote 32.
- Chan (F.C.A.),
supra, footnote 30 at 690, 692-693 and 696, per Heald J.A.
- Cheung, supra, footnote 28,
at 322. See also Chan (S.C.C.),
supra, footnote 32, per Major J. at 657. The Supreme Court
noted that, for the claim to succeed, evidence must show both that there
is a subjective fear and that the fear is "objectively well-founded"
(per Major J., at 659).According to the Court, the evidence did not
establish a serious possibility that certain harm would be inflicted
- i.e.,
did not establish an objective basis (per Major J., at 666). The Court
also had doubts as to whether subjective fear was made out (per Major
J., at 664).
- "Physical compulsion is not the only mechanism
for forcing a person to do something which they would not of their own
free choice choose to do": Liu, Ying Yang v.
M.C.I.
(F.C.T.D.,
no. IMM-4316-94), Reed, May 16,
1995, at 3. The claimant had been subjected to "incredible pressure":
her work unit, and she herself and her husband, would have incurred
fines if she had had a second child; also, on two occasions a member
of the work unit had accompanied her to a hospital where she was to
undergo sterilization.Such pressure amounts to "forcing", as does denying
a person 80% of his salary (at 2-3).
Compare Chan (S.C.C), supra, footnote 32, per Major
J., at 667: "
the [claimant] failed to provide
evidence
to substantiate his claim that the pressure from the Chinese authorities
to submit to sterilization would extend beyond psychological and financial
pressure to actual physical coercion." It is unclear whether Mr. Justice
Major (i) was of the view that psychological and financial pressure
could not constitute forcing (and could not constitute persecution),
or (ii) was simply focusing upon the specific allegation made by the
appellant (namely, that he would be physically coerced), or (iii)
did not think the particular psychological and financial pressures
confronting this claimant would be severe enough to constitute persecution.Interpretation
(i) might be a dubious one, given that Major J. did not clearly assert
this view, and did not present a discussion of the issue.
- Cheung, supra, footnote 28,
at 322-325.
- Chan (S.C.C.),
supra, footnote 32, per La Forest J. (dissenting) at 636. The
majority in the Supreme Court did not expressly comment on the issue,
although Mr. Justisce Major
appeared to assume that forced sterilization would indeed constitute
persecution: see, for example, 658 and 672-3.See also Chan
(F.C.A.),
supra, footnote 30, per Heald J.A. at 686, and per Mahoney
J.A. (dissenting) at 704.
- Cheung, supra, footnote 28,
at 323-324. For a Supreme Court response to the "legitimate end" argument
- a response complementing that of Linden J.A. in Cheung, supra,
footnote 28 - see the remarks of La Forest J. (dissenting), at 631-632
in Chan (S.C.C.),
supra, footnote 32.
- Chan (S.C.C.),
supra, footnote 32, per La Forest J. (dissenting) at 636.
- Lai, Quang v.
M.E.I.
(F.C.T.D.,
no. IMM-307-93), McKeown,
May 20, 1994, at 2.
- Lai, ibid., at 3. In Liu,
supra, footnote 99, the Court noted there was no evidence that
the adult claimants, who had had a second child while in Canada, still
objected to the family planning policy or methods of the Chinese government;
on this basis, the Court held that evidence of subjective fear was lacking
(at 3-4). See also Cheng, Kin Ping v.
M.C.I.
(F.C.T.D.,
no. IMM-176-97), Tremblay-Lamer,
October 8, 1997, at page 2: the male claimant had no reason to
fear persecution for violation of the family planning policy, since
his wife had already been sterilized (following the birth of one child
and a subsequent forced abortion).
- Cheung, supra, footnote 28,
at 322.
- Chan (F.C.A.),
supra, footnote 30, per Heald J.A. at 690-3, and per Desjardins
J.A. at 716-21. In his dissent, Mahoney J.A. rejected one delineation
of a particular social group, but accepted another, at 705.
- Chan (S.C.C.),
supra, footnote 32, per Major J. at 658 and 673.
- Chan (S.C.C.),
supra, footnote 32, per La Forest J. (dissenting) at 646.
- Chan (F.C.A.),
supra, footnote 30, at 693-696, per Heald J.A.
- Chan (F.C.A.),
supra, footnote 30, at 721-723, per Desjardins J.A.Compare
Kwong, Kam Wang (Kwong, Kum Wun) v.
M.C.I.
(F.C.T.D.,
no. IMM-3464-94), Cullen,
May 1, 1995, at 5.
When Chan came before the Supreme Court, both the majority
and the minority declined to decide whether the claimant's action
of having a second child "was sufficiently expressive of a political
opinion to independently found a refugee claim": per Major J., at
672; per La Forest J. (dissenting), at 648-649. Mr. Justice
La Forest thought the evidence pointed to other possible connections
to political opinion (at 647-8).However, His Lordship's broaching
of these possibilities and his reading of the evidence were disapproved
of by Mr. Justice Major
(at 671-2).
- Cheng, at page 2.
- Also see the reference to Daghighi
in footnote 30, above.
- Annan v.
Canada (Minister of Citizenship and Immigration), [1995] 3 F.C.
25 (T.D.). See also
Sanno, Aminata v. M.C.I.
(F.C.T.D.,
no. IMM-2124-95), Tremblay-Lamer,
April 25, 1996.
- Namitabar (T.D.),
supra, footnote 22, at 47. In
Namitabar (F.C.A.),the
Court overturned the Trial Division on the basis that the CRDD
credibility findings were not ambiguous. With respect to the issue of
wearing veils in Iran, the Court was of the view that "the Refugee
Division may have expressed itself incorrectly [but] that has no importance
in the case at bar since the female [claimant] voluntarily complied
with the clothing code and did not even display reluctance to do so
"
- Fathi-Rad, supra, footnote
22, at 4-5. In Rabbani, supra, footnote 35, the Refugee Division
had concluded that a violation of Iran's Islamic dress code could not
form the basis of a well-founded fear of persecution. It had noted the
dress conventions applicable to various groups elsewhere, had indicated
that such conventions did not involve violations of basic human rights,
and had said that the same was true of the Iranian dress code. The Court
observed (at page 2) that, in making these comparisons, the Refugee
Division had "
ignored, failed to appreciate or trivialized the
persecutory aspects of the Islamic dress code
" Furthermore, the
Refugee Division had failed to acknowledge documentary evidence regarding
the penalties for failure to comply with the code.
- Hazarat, Ghulam v.
S.S.C.
(F.C.T.D.,
no. IMM-5496-93), MacKay,
November 25, 1994, at 2-4.
- Vidhani v.
Canada (Minister of Citizenship and Immigration), [1995] 3 F.C.
60, (T.D.) at 65.
- Vidhani, ibid., at 62 and 65-66.See
also Sanno, supra, footnote 114; Gwanzura, Unity v.
M.C.I.
(F.C.T.D.,
no. IMM-1907-96), Heald,
July 10, 1997, at 4 (wife substitution); and Fofanah, Isha
v. M.C.I.
(F.C.T.D.,
no. IMM-4795-97), Muldoon,
July 16, 1998 (a brute who rapes a woman is certainly not following
traditional customary practices).
- Ameri, Ghulamali v.
M.C.I.
(F.C.T.D.,
no. IMM-3745-94), MacKay,
January 30, 1996.
- Ameri, ibid., at 9.
- Pour, Malek Mohammad Nagmeh Abbas v.
M.C.I.
(F.C.T.D.,
no. IMM-3650-95), Gibson,
June 6, 1996, at 5-7.
- Namitabar (T.D.),
supra, footnote 22. In Namitabar (F.C.A.),
the Court overturned the Trial Division on the basis that the CRDD
credibility findings were not ambiguous. With respect to the issue of
wearing veils in Iran, the Court was of the view that "the Refugee
Division may have expressed itself incorrectly [but] that has no importance
in the case at bar since the female [claimant] voluntarily complied
with the clothing code and did not even display reluctance to do so
"
- Fathi-Rad, supra, footnote
22.
- Ali, Shaysta-Ameer, supra,
footnote 9, at 2.One of the claimants was a nine-year-old girl who could
have avoided persecution only by refusing to go to school, and thus
forswearing the basic human right to an education. The Court considered
her to be a Convention refugee. In a rather different context, the Court
again indicated that the Refugee Division must not expect a claimant
to buy peace for herself with an unconscionable self-denial (namely,
continuing to lie about her lack of religious inclinations): Kazkan,
Shahrokh Saeedi v. M.C.I.
(F.C.T.D.,
no. IMM-1313-96), Rothstein,
March 20, 1997, at 2-3.
- Fathi-Rad, supra, footnote
22, at 4.See also Namitabar, supra, footnote 22, at
46.
- Namitabar (T.D.),
ibid., at 49. In Fathi-Rad, supra, footnote 22,
the Convention ground invoked for the part of the claim pertaining to
the dress code appears to have been membership in a particular social
group; the social group in question was not expressly named in the Court's
reasons. In Namitabar (F.C.A.),
supra, footnote 22, the Court overturned the Trial Division
on the basis that the CRDD
credibility findings were not ambiguous. With respect to the issue of
wearing veils in Iran, the Court was of the view that "the Refugee
Division may have expressed itself incorrectly [but] that has no importance
in the case at bar since the female [claimant] voluntarily complied
with the clothing code and did not even display reluctance to do so
"
- Vidhani, supra, footnote 118,
at 64-65 and 67.See also Gwanzura, supra, footnote
119, at 2.
- Ali, Shaysta-Ameer, supra,
footnote 9, at 1-2.
- Annan, supra, footnote 114.
See also Gwanzura, supra, at 2.
- Annan, ibid., at 31. The issue
of state protection was touched upon in Vidhani, supra,
footnote 118 as well, at 66-67. The Court found that the Refugee Division
had not dealt adequately with the issue, and in particular with the
claimant's explanation for not having sought police assistance.
- Guidelines issued by the Chairperson pursuant
to section 65(3) of the Immigration Act, updated November 25,
1996, as continued in effect by the Chairperson on June 28, 2002 under
the authority found in section 159(1)(h) of the Immigration and
Refugee Protection Act.
- Butt, supra, footnote 60;
see also Thathaal, Sabir Hussain v.
S.S.C.
(F.C.T.D.,
no. A-1644-92), McKeown,
December 15, 1993.
- Ahmad, Masroor v.
M.E.I.
(F.C.T.D.,
no. A-555-92), Rothstein,
June 16, 1994, at 3-5 and 9.
- Rehan, Muhammad Arif v.
M.C.I.
(F.C.T.D.,
no. A-580-92), Gibson, October 18,
1996.
- [1990] Imm. A.R. 61 (Eng.C.A.).Quoted in Rehan,
ibid., at 3.
- Rehan, supra, footnote 135:
see in particular the bottom of page 4, the top of page 5, and page
6.
- Rehan, ibid., at 6, and also
at 5.
- Ahmed, Irfan v.
M.C.I.
(F.C.T.D.,
no. IMM-2725-96), Joyal,
July 4, 1997, at 5
- Mehmood, Nasir v.
M.C.I.
(F.C.T.D.,
no. IMM-2256-97), McGillis,
May 14, 1998.
- Bhatti, Naushaba v.
S.S.C.
(F.C.T.D.,
no. A-89-93), Jerome, September 14,
1993.Reported: Bhatti v.
Canada (Secretary of State). (1994), 25 Imm.
L.R. (2d) 275 (F.C.T.D.),
at 278-279.See also Arguello-Garcia, Jacobo Ignacio v.
M.E.I.
(F.C.T.D.,
no. 92-A-7335), McKeown,
June 23, 1993. Reported: Arguello-Garcia v.
Canada (Minister of Employment and Immigration) (1993), 21 Imm.
L.R. (2d) 285 (F.C.T.D.),
at 287-8 - although this case was the subject of conflicting interpretations
in Bhatti on the one hand and Pour-Shariati v.
Canada (Minister of Employment and Immigration), [1995] 1 F.C.
767 (T.D.) and Rafizade,
Rahi v. M.C.I.
(F.C.T.D.,
no. IMM-2570-94), Cullen,
March 7, 1995.Reported: Rafizade v.
Canada (Minister of Citizenship and Immigration) (1995), 30 Imm.
L.R. (2d) 261 (F.C.T.D.)
on the other.
- Pour-Shariati, supra, footnote
141, at 772-3.Rothstein J. certified a question as to whether indirect
persecution constitutes a basis for a claim.
- Casetellanos v.
Canada (Solicitor General), [1995] 2 F.C.
190 (T.D.), at 206-207.
- Casetellanos, ibid., at 207.See
also Vyramuthu, Sanmugarajah v.
S.G.C. (F.C.T.D.,
no. IMM-6277-93), Rouleau,
January 26, 1995, at 4.On the other hand, in Nina, Razvan v.
M.C.I.
(F.C.T.D.,
no. A-725-92), Cullen, November 24,
1994, the Court, at 9, seems to have considered the mistreatment of
the child, who was kidnapped in order to put pressure on his father,
to be persecution of the father. In Hashmat, Suhil v.
M.C.I.
(F.C.T.D.,
no. IMM-2331-96), Teitelbaum,
May 9, 1997, Mr. Justisce
Teitelbaum noted (at pages 4-5) that earlier cases had rejected the
principle of indirect persecution.However, he indicated that, where
the Refugee Division was dealing with "the separate issue" of whether
a the claimant would undergo undue hardship in journeying to
a potential internal refuge (this issue being a subset of the "reasonableness"
branch of the IFA
test), relevance attached to the potential hardship of the wife and
daughter who would accompany him on the journey: at page 5. In two Sri
Lanka IFA
cases the issue of indirect persecution was considered. In Kanagalingam,
Uthayakumari v. M.C.I.
(F.C.T.D.,
no. IMM-566-98), Blais, February
10, 1999, the panel considered the loss of the applicant's father, brother
and fiancé as misfortunes that did not relate to her potential
for resettlement in Colombo. There was no serious possibility of persecution
should she return to Colombo.Similarly, in Jeyarajah, Vijayamalini
v. M.C.I.
(F.C.T.D.,
no. IMM-2473-98), Denault,
March 17, 1999, it was noted that a person is not a refugee simply because
a family member (husband) is persecuted.
- Pour-Shariati, Dolat v.
M.E.I.
(F.C.A.,
no. A-721-94), MacGuigan,
Robertson, McDonald, June 10, 1997. Reported: Pour-Shariati v.
Canada (Minister of Employment and Immigration) (1997), 39 Imm.
L.R. (2d) 103 (F.C.A.);
affirming [1995] 1 F.C.
767 (T.D.).
- Cetinkaya, Lukman v.
M.C.I.
(F.C.T.D.,
no. IMM-2559-97), Muldoon,
July 31, 1998.
- A claim based on indirect persecution may also
be distinguished from a claim based on (direct) persecution by reason
of membership in a particular social group which consists of a certain
family. In Kaprolova, Elena v.
M.C.I.
(F.C.T.D.,
no. IMM-388-97), Teitelbaum,
September 25, 1997, judicial review was granted because the Refugee
Division had mistaken a social-group claim for an indirect-persecution
claim.See also Chapter 4, section 4.5 (in particular footnote 26).
- Pour-Shariati, supra, footnote
141, at 772-773 and 774-775; Casetellanos, supra,
footnote 143, at 201-202; Vyramuthu, supra, footnote
144, at 3; Busto, Nidia Graciela Saez de v.
M.C.I.
(F.C.T.D.,
no. IMM-3704-94), Rothstein,
February 16, 1995, at 3; Rafizade, supra, footnote
141, at 6; Martinez, Oscar v.
M.C.I.
(F.C.T.D.,
no. IMM-462-96), Gibson,
June 6, 1996, at 3-4; Aden, Ahmed Abdulkadir v.
M.C.I.
(F.C.T.D.,
no. IMM-2912-95), MacKay,
August 14, 1996.Reported: Aden v.
Canada (Minister of Citizenship and Immigration) (1996), 35 Imm.
L.R. (2d) 40 (F.C.T.D.),
at 6; and Addullahi, Isse Samatar v.
M.C.I.
(F.C.T.D.,
no. IMM-3170-95), Gibson,
November 4, 1996, at 6; Dawlatly, George Elias George v.
M.C.I.
(F.C.T.D.,
no. IMM-3607-97), Tremblay-Lamer,
June 16, 1998, at page 5. In Shaikh, Sarwar v.
M.C.I.
(F.C.T.D.,
no. IMM-2489-98), Tremblay-Lamer,
March 5, 1999, following Dawlatly, the Court held that
the principle of family unity has not been incorporated in the definition
of Convention refugee. There are other means in the Immigration
Act, such as s.&nsbp;46.04(1)
of ensuring that dependants of Convention refugees are granted permanent
residence.See also Serrano, Roberto Flores et
al. v. M.C.I.
(F.C.T.D.,
no. IMM-2787-98), Sharlow,
April 27, 1999 where it was held that a family connection is not an
attribute requiring Convention protection in the absence of an underlying
Convention ground for the claimed persecution, and Aoul, Djamila
Hadjadj v. M.C.I.
(F.C.T.D.,
no. IMM-2880-99), Blais,
April 6, 2000; Gutierrez, Blanca v.
M.C.I.
(F.C.T.D.,
no. IMM-1118-99), Lemieux,
May 12, 2000; Rajasegaram, Arulmalar v.
M.C.I.
(F.C.T.D.,
no. IMM-2440-99), Reed, June
19, 2000.But see Ripalda, Alma v.
M.C.I.
(F.C.T.D.,
no. IMM-455-98), McDonald,
July 15, 1998, where the Court, without referring to jurisprudence
stating that the principle of family unity is not a basis for granting
Convention refugee status, indicated that the Refugee Division could
have considered the claim under that principle.
Compare Cheung, supra, footnote 28, at 325, where
the concept of family unity is mentioned without analysis; and see
Azofeifa, Kattia Perez v.
M.C.I.
(F.C.T.D.,
no. IMM-1899-94), McKeown,
December 21, 1994, at 4-5 and 6, as well as S.S.C.
v. Ilbeigi-Asli, Mehrbanou
(F.C.T.D.,
no. IMM-2766-94), McKeown,
March 17, 1995, at 4.
Some cases apparently see little difference between the notion of
indirect persecution and the principle of family unity: see Pour-Shariati,
supra, footnote 141, 772-774, and Rafizade, supra,
footnote 141, at 5-6.But note that since "family" may constitute a
particular social group (see Chapter 4), a relative who is targeted,
albeit as a secondary object of the persecutor's animosity, may base
his or her claim on direct persecution by reason of membership in
a particular social group.
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