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KEY POINTS
(based on the December 31, 2002 paper and
addendum #2, dated December 31, 2004)
Legal Services
Immigration and Refugee Board
December 31, 2004
COUNTRY OF PERSECUTION
- The claimant must establish that he or she is a Convention refugee
from the country of his or her nationality (or the country of his former
habitual residence). Nationality means citizenship of a particular country.
[section 2.1.]
Canada (Attorney General) v.
Ward,
[1993] 2 S.C.R.
689.
- If a claimant is a national of more than one country, the claimant
must show that he or she is a Convention refugee with respect to all
such countries. [section 2.1.1.]
Ward, supra.
- A claimant may be considered to be a national of a country where the
evidence establishes that application for citizenship is a mere formality
and the authorities of that country do not have any discretion to refuse
the application. Moreover, there must be a genuine connection or link
with that country. [section 2.1.3.]
Bouianova, Tatiana v.
M.E.I.
(F.C.T.D.,
no. 92-T-1437), Rothstein,
June 11, 1993;
Katkova, Lioudmila v.
M.C.I.
(F.C.T.D.,
no. IMM-2886-96), McKeown, May
22, 1997.
- There is some confusion in the case law of the Trial Division as to
whether or not an adverse inference can be drawn from the failure to
access possible protection or status in a third country, in cases where
there is no automatic right to citizenship. [section 2.1.3.1.]
- The concept "former habitual residence" is only relevant where the
claimant is stateless, i.e.
he or she does not have a country of nationality. [section 2.2.]
- Former habitual residence implies a situation where a stateless person
was admitted to a country with a view to enjoying a period of continuing
residence of some duration. The claimant does not have to be legally
able to return to a country of former habitual residence for it to be
so described. The claimant must, however, have established a significant
period of de facto residence in the country in question. [section
2.2.1.]
Maarouf v.
Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 723
(T.D.).
- Where the stateless claimant has more than one country of former habitual
residence, he or she must show that, on a balance of probabilities he
or she would suffer persecution in any country of former habitual residence,
and that he or she cannot return to any of his or her other countries
of former habitual residence. This test may be termed "any country plus
the Ward factor". [section 2.2.2.]
Thabet v.
Canada (Minister of Employment and Immigration),
[1998] 4 F.C. 21
(C.A.).
- Statelessness per se does not give rise to a claim to refugee status:
the claimant must demonstrate a well-founded fear of persecution based
on a Convention ground. [section 2.2.4.]
- A denial of a right to return may constitute an act of persecution
by the state; however, for it to be the basis of a claim, the refusal
must be based on a Convention ground. [section 2.2.5.]
- According to paragraph 101 of the UNHCR Handbook, stateless claimants
need not avail themselves of state protection since there is no duty
on the state to provide protection. The decisions of the Trial Division
on this topic are not consistent. [section 2.2.6.]
PERSECUTION
- To be considered persecution, the mistreatment suffered or anticipated
must be serious, i.e.,
it must constitute a key denial of a core human right. [section 3.1.1.1.]
Ward, supra;
Chan v.
Canada (Minister of Employment and Immigration),
[1995] 3 S.C.R.
593 (dissenting opinion).
- What constitutes a basic human right is determined by the international
community, not by any one country. At the same time, in determining
whether anticipated actions would constitute fundamental violations
of basic human rights, it is acceptable to consider Canadian law. [section
3.1.1.1.]
Chan, supra.
- The second criterion is that, generally, the mistreatment must be
repetitive and persistent. However, there should not be an "exaggerated
emphasis" on the need for repetition and persistence. The RPD
should analyze the quality of incidents in terms of whether they constitute
"a fundamental violation of human dignity." [section 3.1.1.2.]
Rajudeen, Zahirdeen v.
M.E.I.
(F.C.A.,
no. A-1779-83), Heald, Hugessen,
Stone, July 4, 1984.
Ranjha, Muhammad Zulfiq v.
M.C.I.
(F.C.T.D.,
no. IMM-5566-01), Lemieux, May
21, 2003
- For the claim to succeed, the persecution must be linked to a Convention
ground, in other words, there must be a nexus. [section 3.1.1.3.]
- While most acts of persecution can be characterized as criminal, not
all criminal acts constitute persecution. [section 3.1.1.4.]
Cortez, Delmy Isabel v.
S.S.C.
(F.C.T.D.,
no. IMM-2482-93), McKeown, December
15, 1993.
- It is not necessary, in order for persecution to exist, that the perpetrators
of the harm belong to a certain category or hold a certain kind of position.
In particular, persecution may exist even if state authorities are neither
the immediate inflictors of the harm, nor complicit in the infliction.
[section 3.1.1.5.]
Ward, supra;
Chan, supra.
- The claimant may be subject to a number of discriminatory or harassing
acts. While these acts may individually not be serious enough to constitute
persecution, they may cumulatively amount to persecution. [section 3.1.2.]
Madelat, Firouzeh v.
M.E.I.,
Mirzabeglui, Maryam v. M.E.I.
(F.C.A.,
nos. A-537-89 and A-538-89),
MacGuigan, Mahoney, Linden, January 28, 1991.
GROUNDS OF PERSECUTION
- A claimant's fear of persecution must be by reason of one of the five
grounds enumerated in the definition of Convention refugee - race, religion,
nationality, membership in a particular social group and political opinion.
There must be a link between the fear of persecution and one of the
five grounds. [section 4.1.]
Ward, supra.
- When determining the applicable grounds, the relevant consideration
is the perception of the persecutor. This perception need not necessarily
conform to the claimant's true beliefs. [section 4.1.]
Ward, supra.
- Freedom of religion includes the right to manifest the religion in
public, or private, in teaching, practices, worship and observance.
[section 4.4.]
Fosu, Monsieur Kwaku v.
M.E.I.
(F.C.T.D.,
no. A-35-93), Denault, November
16, 1994.
- The meaning assigned to "particular social group" should take into
account the general underlying themes of the defence of human rights
and anti-discrimination that form the basis for international refugee
protection. [section 4.5.]
Ward, supra.
- As a working rule to achieve the above result, the Supreme Court of
Canada in Ward identified three possible categories of particular social
groups:
- Groups defined by an innate or unchangeable characteristic;
- Groups whose members voluntarily associate for reasons so fundamental
to their human dignity that they should not be forced to forsake
the association; and
- Groups associated by a former voluntary status, unalterable due
to its historic permanence. [section 4.5.]
Ward, supra.
- A particular social group cannot be defined solely by the fact that
a group of persons are objects of persecution, since the Convention
refugee definition requires that the persecution be "by reason of" one
of the grounds. [section 4.5.]
Ward, supra.
- In the context of the Convention refugee definition, political opinion
is any opinion on any matter in which the machinery of state, government
and policy may be engaged; however this does not mean that only political
opinions regarding the state will be relevant. [section 4.6.]
Ward, supra;
Klinko, Alexander v.
M.C.I.
(F.C.A.,
no. A-321-98), Létourneau, Noël,
Malone, February 22, 2000.
- The political opinion at issue need not have been expressed outright,
it can be perceived or imputed. As well, it need not necessarily conform
to the claimant's true beliefs. What is relevant is the perception of
the persecutor. [section 4.6.]
Ward, supra.
- Victims of crime, corruption or vendettas may, in certain circumstances,
establish a link between their fear of persecution and one of the five
grounds in the definition. A link to political opinion will be established
if the actual or perceived expression of the opinion involves matters
in which the machinery of the state may be engaged. [section 4.7.]
Ward, supra;
Klinko, supra.
- The making of a public complaint about widespread corrupt conduct
by government officials to a government authority, and thereafter, the
complainant suffering persecution on this account, when the corrupt
conduct is not officially sanctioned, condoned or supported by the state,
constitutes an expression of political opinion and therefore there is
nexus to a Convention refugee ground. However, an opinion expressed
in opposition to a criminal organization will not provide a nexus on
the basis of political opinion unless the disagreement is rooted in
political conviction. [section 4.7.]
Ward, supra;
Klinko, supra.
WELL-FOUNDED FEAR
- The definition of Convention refugee is forward-looking, therefore
the fear of persecution is to be assessed at the time of the examination
of the claim to refugee status. [section 5.1.]
- The claimant does not have to establish that he or she was persecuted
in the past or that he or she would or will be persecuted in the future.
[section 5.1.]
Salibian v.
Canada (Minister of Employment and Immigration),
[1990] 3 F.C. 250
(C.A.).
- The claimant must establish, on a balance of probabilities, that there
are "good grounds" for fearing persecution. This may also be stated
as a "reasonable" or even a "serious possibility" as opposed to a mere
possibility that the claimant would be persecuted if returned to the
country of origin. [section 5.2.]
Adjei v.
Canada (Minister of Employment and Immigration),
[1989] 2 F.C. 680
(C.A.).
- A claimant may have a subjective fear that he or she will be persecuted
if returned to his or her country, but the fear must be assessed objectively
in light of the situation in the country to determine whether it is
well founded. [section 5.3.]
Rajudeen, supra.
- The “standard of proof” and the “legal test
to be met” must not be confused. The standard of proof refers
to the standard the panel will apply in assessing the evidence adduced
for the purpose of making factual findings, whereas the legal test
is the test that is required to establish the refugee claim is well-founded.
[section 5.2.]
Li, Yi Mei v. M.C.I. (F.C.A., no. A-31-04),
Rothstein, Noel, Malone, January 5, 2005; 2005 FCA 1.
- Generally, delay in making a claim for refugee protection or in leaving
the country of persecution is not in itself a decisive factor, however
it is a relevant and potentially important consideration. [section.
5.4.]
Huerta, Martha Laura Sanchez v.
M.E.I.
(F.C.A.,
no. A-448-91), Hugessen, Desjardins,
Létourneau, March 17, 1993.
- Delay may constitute sufficient grounds upon which to reject a claim
where the delay is inordinate and there is no satisfactory explanation
for it. [section 5.4.3.]
- Delay may point to a lack of subjective fear of persecution, the reasoning
being that someone who was truly fearful would claim refugee status
at the first opportunity. Delay, or a failure to seek protection at
the first opportunity may occur at various points in time: delay in
leaving the country of persecution; failure to seek protection in other
countries; delay in making a claim upon arrival in Canada. [section
5.4.]
- Depending on the circumstances of the case, valid status in Canada
can constitute a good reason for not claiming refugee protection immediately.
[section 5.4.3.]
- Return to the country of persecution may indicate that a well-founded
fear of persecution is lacking where the claimant's conduct is inconsistent
with such a fear. [section 5.5.]
PROTECTION
- The responsibility to provide international protection only becomes
engaged when national or state protection is unavailable to the claimant
(international protection is surrogate). [section 6.1.1.]
Ward, supra.
- In the case of multiple nationalities (citizenship), the claimant
is expected to avail him or herself of the protection of all the countries
of citizenship. [section 6.1.2.]
Ward, supra.
- The availability of national protection forms part of the analysis
of whether the claimant's fear is well founded. [section 6.1.3.]
Ward, supra.
- Two presumptions are at play in refugee determination: (a) if the
fear of persecution is credible (legitimate) and there is an absence
of state protection, one can presume that persecution will be likely
and the fear well founded; (b) absent a complete breakdown of state
apparatus, states are presumed to be capable of protecting their citizens.
[section 6.1.5.]
Ward, supra.
- The claimant must approach his or her state for protection, if state
protection might reasonably be forthcoming. [section 6.1.7.]
Ward, supra.
- The claimant has the burden of rebutting the presumption of state
protection. In order for the presumption to be rebutted, and in order
to establish the reasonableness of failing to approach the state, the
claimant must present "clear and convincing proof" of the state's inability
to protect. [sections 6.1.5. and 6.1.8.]
Ward, supra.
- It is incorrect to use the criterion of “basis for protection” based
on some comparative analysis with other countries as the legal test
for state protection. The Board must address the issues of adequate
and effective state protection. [section 6.1.8.]
Pilliyan, Ponni v. M.C.I.
(F.C., no. IMM-5320-03), Phelan, May 28, 2004; 2004 FC 784.
- A guarantee of protection for all citizens at all times is not to
be expected. Nor is perfect protection. Where a state is in effective
control of its territory, has military, police and civil authority in
place and makes serious efforts to protect its citizens, the mere fact
that it is not always successful will not justify a claim that the state
is not providing protection. [section 6.1.10.]
M.E.I.
v. Villafranca, Ignacio
(F.C.A.,
no. A-69-90), Hugessen, Marceau,
Décary, December 18, 1992.
- As regards the issue of internal flight alternative in relation to
state inability or refusal to provide protection, if state policy restricts
a claimant's access to the whole of the state's territory, then the
failure to provide local protection can be seen as state failure to
provide protection and not mere local failure. [section 6.1.10.]
Zhuravlvev, Anatoliy v.
M.C.I.
(F.C.T.D.,
no. IMM-3603-99), Pelletier, April
14, 2000.
- Protection must be from the state, not from non-state sources. The
availability of protection from non-state sources may be relevant to
the issue of the objective basis for the claim. [section 6.1.11.]
- The more democratic the state's institutions, the more the claimant
must have done to exhaust all the courses of action open to him or her.
[section 6.1.11.]
M.C.I.
v. Kadenko, Ninal
(F.C.A.,
no. A-388-95), Hugessen, Décary,
Chevalier, October 15, 1996.
- Control of the claimant's country may be divided - geographically
or otherwise - among several de facto authorities. Protection from any
one of these authorities, or from a combination of them, will suffice.
[section 6.1.9.]
Zalzali v.
Canada (Minister of Employment and Immigration),
[1991] 3 F.C. 605
(C.A.).
- According to paragraph 101 of the UNHCR Handbook, stateless claimants
need not avail themselves of state protection since there is no duty
on the state to provide protection. The decisions of the Federal Court-Trial
Division on this topic are not consistent. [section 6.2.]
CHANGE OF CIRCUMSTANCES AND COMPELLING REASONS
- A change in country conditions is relevant if it may help in determining
whether or not there is, at the date of the hearing, a reasonable and
objectively foreseeable possibility that the claimant will be persecuted
in the event of return there. [section 7.1.1.]
Yusuf, Sofia Mohamed v.
M.E.I.
(F.C.A.,
no. A-130-92), Hugessen, Strayer,
Décary, January 9, 1995.
- When a panel is weighing changed country conditions together with
all the evidence, factors such as durability, effectiveness and substantiality
are relevant. The more durable the changes are demonstrated to be, the
heavier they will weigh against granting the claim. [section 7.1.2.]
Penate v.
Canada (Minister of Employment and Immigration),
[1994] 2 F.C. 79
(T.D.).
- While recent changes may be sufficient to remove the basis of the
claimant's fear of persecution, the Refugee Protection Division should
not rely on or give much weight to changes that are short-lived, transitory,
inchoate, tentative, inconsequential or otherwise ineffective in substance
or implementation. [section 7.1.2.]
- These considerations apply equally to cases where there has been a
fundamental change in the claimant's personal circumstances, even absent
a change in the political situation in the country. [section 7.1.2.]
Umana, Cesar Emilio Campos v.
M.C.I.
(F.C.T.D. no. IMM-1434-02),
Snider, April 2, 2003; 2003 FCT 393.
- Whether a change of circumstances is sufficient for a fear of persecution
to be no longer well founded must be determined in relation to the basis
of the particular claim. [section 7.1.2.]
Rahman, Faizur v.
M.E.I.
(F.C.A.,
no. A-1244-91), Marceau, Desjardins,
Létourneau, May 14, 1993.
- If a change in circumstances is to be relied on, the issue must be
raised or notice must be given to the claimant but it is sufficient
if "objective basis" is identified as an issue. [section 7.1.4.]
- There is no obligation on the Refugee Protection Division to consider
post-hearing evidence relating to changes in country conditions unless
that evidence has been accepted by the panel before the panel renders
a final decision on the claim. The Refugee Protection Division may,
on its own motion, provide additional documents and reconvene a hearing
into a claim that has not been concluded with a final decision to hear
evidence relating to changes in country conditions. [section 7.1.5.]
- The issue of compelling reasons, the exception found in section 2(3)
of the Immigration Act applies only where the claimant had
a well-founded fear of persecution when he or she left his or her
country
of nationality and the reasons for the fear of persecution have ceased
to exist. The CRDD
is not required to consider whether past persecution constitutes compelling
reasons under section 2(3) where it determines that the claimant was
not a Convention refugee at the time of departure from the country
of nationality. A similarly worded "compelling reasons" provision
is now found in section 108 of the Immigration and Refugee Protection
Act,
and thus the same approach would prevail under the IRPA.
The jurisprudence that has developed with respect to section 2(3) of
the Immigration Act may be used as guidance in the interpretation
of section 108(4) of the Immigration and Refugee Protection Act. [section 7.2.1.]
Cihal, Pavla v.
M.C.I.
(F.C.A.,
no. A-54-97), Stone, Evans, Malone,
May 4, 2000.
Isacko, Ali v. M.C.I.
(F.C., no. IMM-9091-03), Pinard, June 28, 2004; 2004 FC 890.
- In every case in which the CRDD
concludes that a claimant has suffered past persecution, but there
has been a change of country conditions under section 2(2)(e), the CRDD
is obligated to consider whether the evidence presented establishes
that there are "compelling reasons" under section 2(3). This obligation
arises whether or not the claimant expressly invokes section 2(3).
The
evidentiary burden rests on the claimant to adduce the necessary evidence
to establish entitlement to the benefit of the provision. The same
principle
would hold true with regard to section 108 of the Immigration and
Refugee Protection Act. It
follows that where the Board does not find that the claimant has suffered
past persecution, it is under no obligation to consider the compelling reasons exception. [section 7.2.2.]
M.C.I.
v. Yamba, Yamba Odette Wa
(F.C.A.,
no. A-686-98), Isaac, Robertson,
Sexton, April, 6, 2000.
Brovina, Qefsere v. M.C.I.
(F.C., no. IMM-2427-03), Layden-Stevenson, April 29, 2004; 2004 FC 635.
- A claimant will be entitled to Convention refugee status based on
compelling reasons if he or she has suffered such appalling past persecution
that their experience alone is compelling reason not to return the claimant,
even though he or she may not have any reason to fear further persecution.
[section 7.2.3.]
Canada (Minister of Employment and Immigration)
v. Obstoj,
[1992] 2 F.C. 739
(C.A.).
- According to one line of authority, to establish compelling reasons,
the claimant must have suffered from "atrocious" or "appalling" acts
of persecution. Some Trial Division cases hold that Obstoj
did not establish a test that requires the persecution to reach that
level. Section 104(8) of the Immigration and Refugee Protection
Act does not require a determination that the acts or situation
be “atrocious” or “appalling.” The
issue is whether, considering the totality of the situation, i.e.,
humanitarian grounds, unusual or exceptional circumstances, it would
be wrong to reject the claim in the wake of a change of circumstances. Evidence
of continuing psychological after-effects is relevant to a determination
of the issue but is not a separate requirement that
has to be met. Also, persecution of a family member can of itself
be sufficient to constitute compelling reasons. [sections 7.2.3. and
7.2.3.1.]
- Past acts of torture and extreme acts of mental abuse, alone,
in view of their gravity and seriousness, can be considered “compelling
reasons' despite the fact that these acts have occurred many
years before. [section 7.2.3.]
Suleiman, Juma Khamis v. M.C.I.
(F.C., no. IMM-1439-03), Martineau, August 12, 2004; 2004 FC 1125.
- A claimant may be a Convention refugee as a consequence of events
which have occurred in his or her country of origin since his or her
departure or as a result of activities of the claimant since leaving
his or her country. In these circumstances, the claimant is said to
have a sur place claim. [section 7.3.]
- A key issue in sur place claims is whether such actions have
come to the attention of the authorities of the person's country of
origin and how they are likely to be viewed by those authorities. While
it is relevant to examine the motives underlying a claimant's participation
in activities against his government in Canada in order to determine
the claimant's subjective fear, it would be an error for the CRDD
(now the RPD)
to stop the analysis there as it is also necessary to examine whether
or not the fear has an objective basis. [section 7.3.1.]
Asfaw, Napoleon v.
M.C.I.
(F.C.T.D.,
no. IMM-5552-99), Hugessen, July
18, 2000.
INTERNAL FLIGHT ALTERNATIVE (IFA)
- IFA
arises when a claimant who has a well-founded fear of persecution in
his or her home area of the country is not a Convention refugee because
he or she has an internal flight alternative elsewhere in that country.
[section 8.1.]
Rasaratnam v.
Canada (Minister of Employment and Immigration),
[1992] 1 F.C. 706
(C.A.).
- The test to be applied in determining whether there is an IFA
is two-pronged:
- “…the Board must be satisfied on a balance of probabilities that
there is no serious possibility of the claimant being persecuted
in the part of the country to which it finds an IFA
exists.”
- Conditions in the part of the country considered to be an IFA
must be such that it would not be unreasonable, in all the circumstnaces,
including those particular to the claimant, for him to seek refuge
there. [section 8.1.]
Rasaratnam, supra.
- The second prong of the IFA
test may be stated as follows: would it be unduly harsh to expect the
claimant to move to another, less hostile part of the country before
seeking refugee status abroad? Thirunavukkarasu sets a very high threshold
for the "unreasonable test". The hardship associated with dislocation
and relocation is not the kind of undue hardship that renders an IFA
unreasonable. There is a distinction between the reasonableness of an
IFA
and humanitarian and compassionate considerations. [section 8.2.]
Thirunavukkarasu v.
Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 589
(C.A.).
Ranganathan, Rohini v.
M.C.I.
- (F.C.A.,
no. A-348-99), Létourneau, Sexton,
Malone, December, 21, 2000.
- The claimant cannot be required to encounter great physical danger
or undergo undue hardship in travelling to the IFA
or staying there. [section 8.2.]
- To satisfy the notice requirement, the issue of IFA
must be raised by the RPO,
the panel or the Minister before or during the hearing. Once the issue
is raised, the onus is on the claimant to show that he or she does not
have an IFA.
[section 8.3.]
PARTICULAR SITUATIONS
I. Civil war
- The claimant is not barred from being considered a Convention refugee
by the mere fact that the circumstances which he or she relies upon
derive from, or are related to, a civil war. Equally, the mere fact
that a civil war is underway in the claimant's country of origin, or
that the claimant has a fear related to the civil war, is not sufficient
to make the claimant a Convention refugee. [section 9.2.]
Salibian v.
Canada (Minister of Employment and Immigration),
[1990] 3 F.C. 250
(C.A.);
IRB
Chairperson's Guidelines,
“Civilian Non-Combatants Fearing Persecution in Civil War Situations”,
March 7, 1996 (as continued under s. 159(1)(h)
of IRPA).
- Refugee claimants must establish a link between themselves and persecution
for a Convention reason; they must be targeted for persecution in some
way, either personally or collectively. [section 9.2.]
Rizkallah, Bader Fouad v.
M.E.I.
(F.C.A.,
no. A-606-90), Marceau, MacGuigan,
Desjardins, May 6, 1992.
- 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. [section 9.2.1.2.]
IRB
Chairperson's Guidelines,
“Civilian Non-Combatants Fearing Persecution in Civil War Situations”,
March 7, 1996; (as continued under s. 159(1)(h)
of IRPA.
Ali, Shaysta-Ameer v.
M.C.I.
(F.C.A.,
no. A-772-96), Décary, Stone,
Strayer, January 12, 1999.
II. Persecution vs.
prosecution
- The issue is to distinguish between a situation where a claimant has
violated a law of general application and what he or she fears is prosecution
and punishment for that violation and a situation where the violation
relates to a law which is persecutory in either its application or its
punishment. [section 9.3.1.]
- As to whether there would be a nexus between application of the law
to the claimant and a Convention ground, the following propositions
are relevant:
- A presumption of neutrality attaches to any law of general application.
The onus is on the claimant to show that there is adverse differentiation.
- The law may be inherently non-neutral. The neutrality of the law
is to be judged objectively.
- It is the intent and any principal effect of the law of general
application which must be considered, not the claimant's motivation.
If either the intent or a principal effect is to harm the rights
of some person or category, then the law is not neutral. [section
9.3.2.]
Zolfagharkhani v.
Canada (Minister of Employment and Immigration),
[1993] 3 F.C. 540
(C.A.).
- Regarding the seriousness of harm, the following must be considered:
- Is the penalty disproportionate to either the objective of the
law or the offence?
- The means by which the law is enforced. "Brutality in furtherance
of a legitimate end is still brutality. "
- Is the prosecution and enforcement of the law within legal bounds?
(section 9.3.2. )
Cheung v.
Canada (Minister of Employment and Immigration),
[1993] 2 F.C. 314
(C.A.);
Chan, (dissenting opinion), supra.
- Certain emergency situations such as those which threaten national
security or terrorism, may allow states to institute measures which,
while violative of certain civil rights, may not amount to persecution.
However, certain types of violations such as beatings and torture of
suspects or other brutal treatment will more appropriately be termed
persecution. (section 9.3.3.)
Cheung, supra;
Thirunavukkarasu, supra.
III. Exit laws
- A person who, having been subjected to no persecution in the past,
violates an exit law applicable to all citizens and thereby exposes
him or herself to punishment for the violation, is not a Convention
refugee. [section 9.3.5.]
Valentin v.
Canada (Minister of Employment and Immigration),
[1991] 3 F.C. 390
(C.A.).
- Repercussions beyond the statutory sentence may suggest that the actions
of the authorities are persecutory. [section 9.3.5.]
IV. Military service
- It is not persecution for a country to have compulsory military service.
[section 9.3.6.]
Popov, Leonid Anatolievich v.
M.E.I.
(F.C.T.D.,
no. IMM-2567-93), Reed, April
11, 1994.
- An aversion to military service or a fear of combat is not in itself
sufficient to support a well-founded fear of persecution. [section 9.3.6.]
Garcia, Marvin Balmory Salvador v.
S.S.C.
(F.C.T.D.,
no. IMM-2521-93), Pinard, February
4, 1994.
- The Zolfagharkhani principles relating to laws of general application
(noted above) apply to military-service situations. [sections 9.3.2.
and 9.3.6].
Zolfagharkhani, supra.
- Where the claimant invokes reasons of conscience for objecting to
military service, it is necessary to determine whether the particular
reasons are genuine and of sufficient significance. [section 9.3.6.]
- A claimant may object to serving in a particular conflict, or to the
use of a particular category of weapon, rather than objecting to military
service altogether, and may be found to be a Convention refugee if the
military actions objected to are judged by the international community
to be contrary to basic rules of human conduct. [section 9.3.6.]
Zolfagharkhani, supra;
Ciric v. Canada (Minister
of Employment and Immigration),
[1994] 2 F.C. 65
(T.D.).
- In determining whether the claimant would face serious harm for failing
to serve in the military, one must consider whether the claimant might
be able to perform alternative service or obtain an exemption from service.
One must also consider the harshness of the actual penalty for refusing
to serve. [section 9.3.6.]
V. One-child policy
- Forced or strongly coerced sterilization constitutes persecution,
whether the victim is a woman or a man. Forced abortion also constitutes
persecution. [section 9.3.7.]
Cheung, supra;
Lai, Quang v.
M.E.I.
(F.C.T.D.,
no. IMM-307-93), McKeown, May
20, 1994.
- The applicable Convention grounds, depending on the circumstances
of the case, may be membership in a particular social group, religion
and/or political opinion. (sections 4.4., 4.5., 4.6. and 9.3.7.)
Cheung, supra;
Chan (SCC,
dissenting opinion), supra.
VI. Religious or cultural mores
- Restrictions upon women. [section 9.3.8.1.]
- Restrictions imposed upon the dress and conduct of women may,
in certain circumstances, constitute persecution. The breach of
those restrictions may be perceived as political opinion but a claim
may also be based on membership in a particular social group.
- Examples of gender-based persecution (based on religious or cultural
mores) include female circumcision and being forced into a marriage.
- Ahmadis from Pakistan. [section 9.3.8.2.]
There is case law which says that the mere existence of the laws
targeting Ahmadis does not give an Ahmadi claimant good grounds for
fearing persecution; however, the point is not altogether free from
doubt. Some of the factors that have been considered by the Courts
are whether the claimant engaged or is likely to engage in any of
the prohibited activities and the likelihood that the law will actually
be enforced.
VII. Indirect Persecution and Family Unity
- Indirect persecution (a concept premised on the assumption that family
members are likely to suffer great harm, such as loss of the victim's
economic or social support, when their close relative is persecuted)
does not constitute persecution within the definition of Convention
refugee. For a claim to be successful there must be a personal nexus
between the alleged persecution and a Convention ground. In certain
circumstances the nexus will be membership in the particular social
group "family". [section 9.4.]
Pour-Shariati, Dolat v.
M.E.I.
(F.C.A.,
no. A-721-94), MacGuigan, Robertson,
McDonald, June 10, 1997.
- Persecution of an infant (or a child) is persecution of the parents,
regardless of the infant's citizenship." [section 9.4.]
Shen, Zhi Ming v.
M.C.I.
(F.C., no. IMM-313-03),
Kelen, August 15, 2003; 2003 F.C.
983
- The concept of "family unity" (included in the UNHCR Handbook) has
been rejected in Canadian law. This concept holds that if the directly-affected
person meets the criteria in the definition, then family members may
be recognized as Convention refugees even if they do not meet individually
the definition's criteria. [section 9.4.]
EXCLUSION CLAUSES
I. Article 1E
- The Convention refugee definition does not apply to a person who is
recognized by the authorities of a country in which he or she has taken
residence as having the rights and obligations which are attached to
the possession of the nationality of that country. [section 10.1.]
Article 1 E of the Convention Relating
to the Status of Refugees,
Schedule to the Immigration and Refugee Protection Act (formerly
the Immigration Act)
- At a minimum, the claimant must be able to return to and remain in
the putative Article 1E country before he or she may be excluded from
the Convention refugee definition. It appears that the proper time for
determining the existence of the right to return is the date of the
application for admission to Canada. [section 10.1.1.]
M.C.I.
v. Mahdi, Roon Abdikarim
(F.C.A.,
no. A-632-94), Pratte, MacGuigan,
Robertson, December 1, 1995.
- If the claimant has some sort of temporary status which must be renewed,
and which could be cancelled, or if the claimant does not have the right
to return to the country of residence, the claimant should not be excluded
under Article 1 E. However, recognition of permanent resident status
can exist without the right of re-entry. Once there is evidence of permanent
residence, the onus shifts to the claimant to demonstrate why a re-entry
visa cannot be obtained.
Shamlou, Pasha v.
M.C.I.
(F.C.T.D.,
no. IMM-4967-94), Teitelbaum,
November 15, 1995.
Nepete, Firmino Domingos v.
M.C.I.
(F.C.T.D.,
no. IMM-4471-99), Heneghan, October
11, 2000.
- In determining whether the claimant enjoys the rights and obligations
of a national, the following criteria are useful:
- the right to return to the country of residence,
- the right to work freely without restrictions,
- the right to study, and
- full access to social services in the country of residence.
- If the claimant has some sort of temporary status which must be renewed,
and which could be cancelled, or if the claimant does not have the right
to return to the country of residence, the claimant should not be excluded
under Article 1 E. However, recognition of permanent resident status
can exist without the right of re-entry. Once there is evidence of permanent
residence, the onus shifts to the claimant to demonstrate why a re-entry
visa cannot be obtained. [section 10.1.2.]
Shamlou, supra.
- The case law is not clear as to what factors need to be considered
to determine whether Article 1E applies. It would appear that determinations
under Article 1E do not necessarily involve the strict consideration
of all factors regarding residency, as the analysis depends on the particular
nature of the case at hand and the rights which normally accrue to citizens
in the country of residence. [section 10.1.2.]
Juzbasevs, Rafaels v.
M.C.I.
(F.C.T.D.,
no. IMM-3415-00), McKeown March
30, 2001;
Hamdan, Kadhom Abdul Hu v.
M.C.I.
(F.C.T.D.,
no. IMM-1346-96), Jerome 27, 1997.
- The case law seems to suggest that the CRDD
(now the RPD)
should consider whether the claimant has a well-founded fear of persecution
for a Convention reason in the Article 1E country. This would include
an assessment of the availability of state protection in the Article
1E country. Before the RPD considers
the issue of state protection with respect to a country other than
the claimant's country of
nationality, the panel should make clear it is considering a potential
exclusion under Article 1E. [section 10.1.3.]
Kroon, Victor v.
M.E.I.
(F.C.T.D.,
no. IMM-3161-93), MacKay, January
6, 1995.
Mobarekeh, Fariba Farahmad v. M.C.I.
(F.C., no. IMM-5995-03), Layden-Stevenson, August 11, 2004; 2004 FC 1102.
II. Article 1F
- If there are "serious reasons for considering" that a claimant has
committed an Article 1F crime (crime against peace, war crime, crime
against humanity, serious non-political crime, act contrary to the
purposes and principles of the United Nations), he or she is excluded
from the
Convention refugee definition.
Article 1 F of the Convention Relating
to the Status of Refugees,
Schedule to the Immigration and Refugee Protection Act (formerly
the Immigration Act)
- Article 1F(a) must be interpreted so as to include the international
instruments concluded since its adoption. This would include the Statute
of the International Tribunal for Rwanda and the Statute dealing with
the former Yugoslavia as well as the Rome Statute of the International
Criminal Court. [section 10.2.]
Harb, Shahir v.
M.C.I.
(F.C.A.,
no. A-309-02), Decary, Noël,
Pelletier, January 27, 2003: 2003 FCA 39.
- The burden of establishing "serious reasons for considering" that
Article 1F offences have been committed falls on the Minister, however
the Minister does not have to be present at the hearing in order for
the CRDD
to consider exclusion. [section 10.5.]
Ramirez v.
Canada (Minister of Employment and Immigration),
[1992] 2 F.C. 306
(C.A.).
- There is no requirement to balance the nature of the Article 1F crime
with the degree of persecution feared. In
fact, in Xie, the
Federal Court of Appeal held that the RPD is
neither required nor allowed to
balance the claimant's crimes against the risk of torture. In
fact the Court held that having found first that the claimant fell
within the exclusion clauses, specifically Article 1F(b), the RPD exceeded
its mandate when it went on to consider whether the claimant was at
risk of torture. [sections 10.2.4. and 10.3.4]
M.C.I.
v. Malouf, François
(F.C.A.,
no. A-19-95), Hugessen, Décary,
Robertson, November 9, 1995.
Xie, Rou Lan v. M.C.I.
(F.C.A., no. A-422-03), Décary, Létourneau, Pelletier,
June 30, 2004; 2004 FCA 250.
- For a crime to be a crime against humanity, it must be committed
in a widespread, systematic fashion either during a civil or international
war or in times of peace. (section 10.2.3. )
Sivakumar v.
Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 433
(C.A.).
- There may be circumstances where a claimant will invoke successfully
certain defences, such as duress and superior orders, which absolve
him or her from responsibility and thus the claimant will not be excluded
from refugee status. [section 10.2.5.]
- Where a claimant has not in a "physical" sense committed an Article
1F(a) crime, he or she may be held responsible for the crime as an
accomplice
and thus be subject to being excluded. In order to find the claimant
complicit, the CRDD
must determine that the claimant had "personal and knowing participation".
[section 10.2.6.]
Ramirez, supra.
- Mere membership in an organization principally directed to a limited
brutal purpose does not automatically result in exclusion; the CRDD
must first determine whether the claimant had knowledge of the crimes
being committed by the members of the organization. [section 10.2.6.1.]
Ramirez, supra;
Saridag, Ahmet v.
M.E.I.
(F.C.T.D.,
no. IMM-5691-93), McKeown, October
5, 1994.
- In determining whether an organization is "principally directed to
a limited, brutal purpose," the organization need not be one that
engages solely and exclusively in acts of terrorism. [section 10.2.6.1.]
Pushpanathan v.
M.C.I.
(F.C., no. IMM-4427-01),
Blais, September 3, 2002; 2002 FCT
867.
- Article 1F(b) is not applicable to refugee claimants who have been
convicted of a crime committed outside Canada and who have served
their
sentence prior to coming to Canada. [section 10.3.1.]
Chan v.
Canada (Minister of Citizenship and Immigration)
[2000] 4 F.C. 390
(C.A.)
- The determination as to whether a crime is "serious" depends on the
nature of the crime committed. It cannot be assumed that a "serious"
crime is automatically one in which a maximum sentence of 10 years
or more could have been imposed. [section 10.3.1.]
Chan, supra.
- An economic crime involving the embezzlement of the equivalent of
over one million Canadian dollars, not involving any violence, can
be
a 1F(b) crime. [section 10.3.1.]
Xie, Rou Lan v.
M.C.I. (F.C.A., no. A-422-03),
Décary, Létourneau, Pelletier, June 30, 2004; 2004 FCA 250.
- Article 1F(b) crimes are not limited to those crimes that are extraditable
pursuant to a treaty. The reference to extraditable crimes in Pushpanathan
(SCC)
is merely an indication of the nature and seriousness of the crimes
that
may fall under 1F(b). [addendum #2, section 10.3.1.]
Zrig, Mohamed v.
Canada (Minister of Citizenship and Immigration)
[2003] 3 F.C. 761.
- In order for a crime to be characterized as "political", thus falling
outside the ambit of Article 1F(b) (serious non-political crimes),
both
aspects of a two-pronged test must be satisfied:
- the existence of a political disturbance related to a struggle
- to modify or abolish a government or government policy;
- a rational nexus between the crime committed and the
- accomplishment of the political objective sought. [section 10.3.2.]
Gil v.
Canada (Minister of Employment and Immigration),
[1995] 1 F.C. 508
(C.A.).
- A very serious crime may be accepted as "political" if the regime
against which it is committed is repressive and offers no scope for
freedom of expression and the peaceful change of government or government
policy. [section 10.3.2.]
Gil, supra.
- The principles of complicity by association laid down in Sivakumar
and Bazargan may be applied to Article 1F(b). [section 10.3.3.]
Zrig, supra.
- The purpose of Article 1 F(c) is to exclude those individuals responsible
for serious, sustained or systematic violations of fundamental human
rights which amount to persecution in a non-war situation. [section
10.4.]
Pushpanathan v.
Canada (Minister of Citizenship and Immigration),
[1998] 1 S.C.R.
982.
- The guiding principle is that where there is consensus in international
law that particular acts constitute sufficiently serious and sustained
violations of fundamental human rights as to amount to persecution,
or are explicitly recognized as contrary to the purposes and principles
of the United Nations, then Article 1 F(c) will be applicable. [section
10.4.]
Pushpanathan, supra.
- Two categories of acts fall within Article
1 F(c):
- where a widely accepted international agreement or United Nations
resolution declares that the commission of certain acts is contrary
to the purposes and principles of the United Nations;
- those acts which a court is able, for itself, to characterize
as serious, sustained and systematic violations of fundamental
human
rights constituting persecution. [section 10.4.]
Pushpanathan, supra.
- The application of Article 1F(c) is not limited to persons in power.
Non-state actors may fall within the provision. [section 10.4.]
Pushpanathan, supra.
- Since the RPD has sole and exclusive jurisdiction to hear and determine
all questions of law and fact, including questions of jurisdiction, non-participation
of the Minister does not preclude an exclusion finding. [section 10.5.]
Arica, Jose Domingo Malaga v. M.E.I.
(F.C.A., no. A-153-92), Stone, Robertson, McDonald, May 3, 1995.
Addendum #2 additions appear in highlighted format.
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