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CHAPTER 2 - ADDENDUM #22. COUNTRY OF PERSECUTION2.1. COUNTRY OF NATIONALITY2.1.2 Establishing NationalityThe following is added to footnote 7, page 2-2: Bady-Badila, Bruno v. M.C.I. (F.C.T.D., no. IMM-5510-01), Noël, April 3, 2003; 2003 FCT 399 (re Guinea). The following is added to the first paragraph in footnote 8, page 2-2: Having regard to paragraph 93 of the UNHCR Handbook, the Court held in Mathews, Marie Beatrice v. M.C.I. (F.C., no. IMM-5338-02), O'Reilly, November 26, 2003; 2003 FC 1387, that a holder of a country's passport is presumed to be a citizen of that country. 2.1.3 Right to CitizenshipThe following is added before the final sentence in footnote 17, before the reference to Sahal, page 2-3: See, however, Manzi, Williams v. M.C.I. (F.C., no. IMM-4181-03), Pinard, April 6, 2004; 2004 FC 511, where the Court held that, since the claimant would have, as a pre-condition, to renounce his Rwandan citizenship in order to regain Ugandan citizenship, Uganda was not a country of nationality. The Court did not consider the decision in Chavarria. The following question was certified and is before the Federal Court of Appeal for determination (file no. A-241-04): Does
the expression “countries
of nationality” of section 96 of the Immigration and Refugee
Protection Act include a country where the claimant can obtain
citizenship if, in order to obtain it, he must first renounce the citizenship
of another country and he is not prepared to do so?
2.2. FORMER HABITUAL RESIDENCEThe following is added to the text at the end of the section, page 2-6: If the claimant is a citizen of the country in which he or she resided, the claim is properly assessed on the basis that the claimant has a country of nationality.1 2.2.3 Nature of Ties to CountryThe following is added to footnote 41, page 2-8: In Marchoud, Bilal v. M.C.I. (F.C., no. IMM-10120-03), Tremblay-Lamer, October 22, 2004; 2004 FC 1471, the claimant was a stateless Palestinian, who was born and lived in Lebanon until age four. He spent the majority of his life until age 23 in the United Arab Emirates (1980-1998), before becoming a university student in the United States (1998-2001), having returned to Lebanon only for a period of one week. The Court upheld, as being not patently unreasonable, the RPD's decision that the only country of former habitual residence was the UAE, and that Lebanon was not such a country notwithstanding the fact that the claimant had travel documents issued by the Lebanese authorities and could reside there. Therefore, the panel was not obligated to consider the risk of persecution in Lebanon. Since the panel had concluded that the claimant could return to the UAE, it was not obligated to analyze the possibility of refoulement to Lebanon by the UAE. The following is added to the text at the end of the section, page 2-8: A country cannot qualify as a country of former habitual residence if the claimant never resided there.2 2.2.5. Evidence of Persecution for a Convention ReasonThe following is added to footnote 46, at the end of the first sentence, before the reference to Alusta, page 2-9: For a similar fact situation, see also Kadoura, Mahmoud v. M.C.I. (F.C., no. IMM-4835-02), Martineau, September 10, 2003; 2003 FC 1057 where the Court noted that the UAE's cancellation of, or failure to issue, a residence permit was not an act of persecution, but a direct consequence of the decision of the claimant, who chose to leave the UAE to come to Canada to study. Furthermore, the conditions imposed by the UAE (that the person have a work permit or be enrolled in full-time studies) had no nexus to any of the grounds set out in the Convention. The denial of a right of return was not for a Convention reason. The following is added to the text at the end of the section, page 2-10: It is a reviewable error not to specifically consider a claimant's UNWRA registration document when assessing a claim for refugee protection. It is a highly relevant document, provided the conditions that originally enabled qualification are shown to persist.3
CHAPTER 3 - ADDENDUM #23. PERSECUTION3.1. GENERALLY3.1.1.2. Repetition and PersistenceThe following is added to the text at the end of the section, on page 3-5: In the case of Ranjha,1 the Court has further commented that there should not be an "exaggerated emphasis" on the need for repetition and persistence. Rather, the RPD should analyze the quality of incidents in terms of whether they constitute "a fundamental violation of human dignity". 3.1.1.3. NexusThe following is added to footnote 20, page 3-6: The appeal to the Federal Court of Appeal [in Gonzalez] was discontinued (February 7, 2003). The concept of "indirect persecution" was considered in Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983, where the Court held that "any persecution which the second child Canadian-born infant will experience in China is directly experienced by the parents, and is not ‘indirect persecution'." For a more detailed discussion of the concept of "indirect persecution, see chapter 9, section 9.4. The following is added to the text as a new paragraph after footnote 20, on page 3-6: In Granada2, the Court set out the only circumstances in which the family can be considered a particular social group as follows: [16]
The family can only be considered to be a social group in cases where
there is evidence that the persecution is taking place against
the family members as a social group: [citations omitted]. However,
membership in the social group formed by the family is not without
limits, it requires some proof that the family in question is itself,
as a group, the subject of reprisals and vengeance….
3.1.1.4. Common Crime or Persecution?The following is added to footnote 30, page 3-7: In Zefi, Sheko v. M.C.I. (F.C.T.D., no. IMM-1089-02), Lemieux, May 21, 2003; 2003 FCT 636, the Court held that family or clan involved in a blood feud is not a particular social group, as such revenge killings have nothing to do with the defence of human rights; to the contrary, they constitute a violation of human rights: "Recognition of a social group on this basis would have the anomalous result of according status to criminal activity, status because of what someone does rather than what someone is." 3.1.3.1. Some Judicial ObservationsThe following is added to footnote 57, page 3-11: In two recent decisions dealing with a Turkish law banning the wearing of headscarves in government places or buildings, the Court distinguished both Namitabar, supra, and Fathi-Rad, supra, as cases dealing with Iranian women who were obliged by Iranian law to wear the Chador: Kaya, Nurcan v. M.C.I. (F.C., no. IMM-5565-03), Harrington, January 14, 2004; 2004 FC 45, at para. 18; Aykut, Ibrahim v. M.C.I. (F.C., no. IMM-5310-02), Gauthier, March 26, 2004; 2004 FC 466, at para. 40. The following is added to footnote 74, page 3-13: Similarly, in B.C. v. M.C.I. (F.C., no. IMM-4840-02), Gibson, July 4, 2003; 2003 FC 826, the Court held that the denial to the claimant of the opportunity to secure re-employment as a high school teacher, in the absence of her abandonment of a particular religious practice, could amount to serious discrimination amounting to persecution. However, in two recent decisions, the Federal Court agreed with the RPD's finding that the Turkish female claimant's loss of employment in a public institution for wearing a headscarf did not constitute persecution. In Kaya, Nurcan v. M.C.I. (F.C., no. IMM-5565-03), Harrington, January 14, 2004; 2004 FC 45, at para. 13, the Court stated that “[l]aws must be considered in their social context.” In this case, the Court found that the Turkish law banning the wearing of any religious dress in government places or buildings was made in furtherance of the government's secular policies. A similar result was reached in Aykut, Ibrahim v. M.C.I. (F.C., no. IMM-5310-02), Gauthier, March 26, 2004; 2004 FC 466. See also the discussion under “Restrictions upon Women” in chapter 9, section 9.3.8.1. The following is added to footnote 77, page 3-13: However, in Murugamoorthy, Rajarani v. M.C.I. (F.C., no. IMM-4706-02), O'Reilly, September 29, 2003; 2003 FC 1114, the Court stated that whether short-term arrests for security reasons can be considered persecution depends upon the claimant's particular circumstances, including factors such as the claimant's age and prior experiences, relying upon Velluppillai, Selvaratnam v. M.C.I. (F.C.T.D., no. IMM-2043-99), Gibson, March 9, 2000. In Kularatnam, Suhitha v. M.C.I. (F.C., no. IMM-3530-03), Phelan, August 12, 2004; 2004 FC 1122, at para. 11, the Court set out other factors that could also be relevant, namely, the nature of the location and treatment during detention, and the manner of release from detention.
CHAPTER 4 - ADDENDUM #24. GROUNDS OF PERSECUTION4.4. RELIGIONThe following is added to footnote 9, page 4-3: In Mu1, the claimant's evidence was that “group” practice is what Falun Gong prescribes for its practitioners. The Court stated that giving public witness is a fundamental part of many religions. The decision of the Supreme Court of Canada in Syndicat Northcrest v. Amselem 2004 SCC 47, expands the concept of public religious acts, not restricts it. The play on words between “group” and “public” raises the spectre that the claimant would be jailed or cruelly punished in China. As the evidence clearly showed that he did practice in public, he should be judged on what he did, not on his choice of words. The following is added to footnote 10, page 4-3: In Xu,2 the Board doubted the claimant was truly a Christian. While she was able to answer some questions about elements of the Christian faith, she did not know of Lent or Palm Sunday. The Court concluded it was not open to the Board to conclude that Lent is celebrated universally in all churches. The evidence before the Board was that Lent and Palm Sunday were not celebrated in the applicant’s church. 4.5. PARTICULAR SOCIAL GROUPThe following is added to footnote 32, page 4-7: In Granada, Armando Ramirez v. M.C.I. (F.C., no. IMM-83-04), Martineau, December 21, 2004; 2004 FC 1766, the Court noted that the applicants had to establish that they were targeted for persecution either personally or collectively, that one cannot be deemed to be a refugee only because one has a relative who is being persecuted. Proof is required to show that the family is, as a group, subject to acts of persecution. In Macias, Laura Mena v. M.C.I. (F.C., no. IMM-1040-04), Martineau, December 16, 2004; 2004 FC 1749, the Court noted that in order to consider immediate family as a particular social group, a claimant must only prove that there is a clear nexus between the persecution that is being levelled against one member of the family and that which is taking place against the claimant. 4.6. POLITICAL OPINIONThe following is added to footnote 50, page 4-10: In Sopiqoti,3 the Court held that the claimant’s statement that he had not had any political involvement and was not familiar with the political ideologies in his country did not exempt the panel from its obligation to consider whether the gestures he had made, such as refusing to fire on pro-democracy demonstrators, were considered to be political activities. Even if the agents of persecution acted out of personal or pecuniary motives, the CRDD had to determine whether the government authority had imputed a political opinion to the claimant. 4.7. VICTIMS OF CRIMINALITY AND NEXUS TO THE GROUNDSThe following is added to footnote 61, page 4-12: In Kouril,4 the Court distinguished Klinko on the basis that in Klinko, the political opinion expressed took the form of a denunciation of state officials’ corruption whereas in this case, the claimant had complained about a group of private citizens acting outside the law. Even under Ward’s broad definition of political opinion, the claimant’s complaint would not constitute an expression of political opinion, especially since the evidence before the Board was that corruption was not endemic in the Czech Republic. In Liang,5 the Court upheld the Board’s decision. The CRDD found that the claimant was a leader of organized crime and excluded him under Article 1 F(b). The Board found there was no nexus to political opinion as articulated in Klinko, as the claimant could not be perceived as opposing the government authorities. It was precisely because of a crackdown on criminality and corruption that the Chinese authorities had an interest in the claimant.
CHAPTER 5 - ADDENDUM #25. WELL-FOUNDED FEAR5.2. TEST – STANDARD OF PROOFThe following is added to the text after footnote 9, page 5-2: In Li1, the Federal Court of Appeal noted that 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. 5.4. DELAYThe following is added to the text as a new paragraph, following the reference to footnote 26, on page 5-5: In a series of recent decisions, a number of Federal Court judges have taken the view that Huerta enunciated a general principle, and that, although the presence of delay does not mandate the rejection of a claim as the claimant may have a reasonable explanation for the delay, nonetheless, delay may, in the right circumstances, constitute sufficient grounds upon which to reject a claim. That decision will ultimately depend on the facts of each claim.2 5.4.3. Delay in making a claim upon arrival in CanadaThe following is added to the text after the first paragraph, on page 5-10: In Gyawali,3 the Federal Court found that valid status in Canada could constitute a good reason for not claiming refugee protection immediately. The Court drew a parallel between the sailor on the ship whose contract expired, leaving him nowhere to go but home,4 and the claimant, who had a student visa and had also made an application for permanent residency in Canada. It was not until he could no longer pay for his studies that he feared having to return to his country. Both the sailor and the student left their countries fearing persecution and had found a safe place to stay, at least temporarily. Neither felt an immediate need to apply for refugee status. As soon as they found themselves at risk of being forced to return home, they filed claims for refugee protection.5 5.4.1. Delay in leaving the country of persecutionThe following is added to the text as a new paragraph, after the reference to footnote 41, on page 5-7: When a claim is based on a number of discriminatory or harassing incidents which culminate in an event which forces a person to leave his country, the issue of delay cannot be used as a significant factor to doubt that person’s subjective fear of persecution.6 5.5. RE-AVAILMENT OF PROTECTIONThe following is added to the text at the end of the section, on page 5-11: The Federal Court has held that it is an error to find a lack of subjective fear when the claimant was removed to his or her country, and thus did not return voluntarily.7
CHAPTER 6 - ADDENDUM #26. STATE PROTECTION6.1. INTRODUCTION – GENERAL PRINCIPLESThe following is added to footnote 2, page 6-1: See also Judge, Gurwinder Kaur v. M.C.I. (F.C., no. IMM-5897-03), Snider, August 9, 2004; 2004 FC 1089, where the Court confirmed that the test for determining whether state protection might reasonably be forthcoming is an objective one. 6.1.3. Timing of AnalysisThe following is added to footnote 5, before the reference to Balogh, page 6-2: See also Mejia, Juana Ubaldina Garcia v. M.C.I. (F.C., no. 4645-02), Tremblay-Lamer, October 10, 2003; 2003 FC 1180, where the Court again stated that the issue of state protection arises only if a nexus is established. Likewise, there is no need to consider state protection where the claimant fails to establish a subjective fear of persecution: Rivera, Jesus Vargas v. M.C.I. (F.C., no. IMM-5824-02), Beaudry, November 5, 2003: 2003 FC 1292. 6.1.6. Burden of ProofThe following is added to footnote 14, page 6-4: See also Sanchez, Leonardo Gonzalez v. M.C.I. (F.C., no. IMM-3154-03), Mactavish, May 18, 2004; 2004 FC 731. 6.1.7. Obligation to Approach the StateThe following is added to footnote 15, after the reference to Kogan, page 6-4: See also Carrillo, Marlene Sirias v. M.C.I. (F.C., no. IMM-4908-03), Snider, June 30, 2004; 2004 FC 944; and Cascante, Maria Leila Bermudez v. M.C.I. (F.C., no. IMM-4343-03), Kelen, April 26, 2004; 2004 FC 603, where the Court agreed with the RPD that these Costa Rican claimants should have complained to the Ombudsman's office. 6.1.8. Rebutting the Presumption of ProtectionThe following is added to footnote 18 (at the end), page 6-5: In Ayisi-Nyarko, Isaac v. M.C.I. (F.C., no. IMM-3671-03), O’Reilly, December 10, 2003; 2003 FC 1425, the claimant thought that making a police report would probably be ineffective because suspects were often released on bail and then would exact reprisals against their accusers. This evidence, however, was not sufficient to displace the presumption that states are willing and able to protect their citizens (Ward). The following is added to the text, at the end of the section, page 6-6: 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.1 6.1.9. More Than One Authority in the CountryThe following is added to footnote 27, page 6-7: See also Isufi, Arlind v. M.C.I. (F.C., no. IMM-5631-02), Tremblay-Lamer, July 15, 2003; 2003 FC 880, where the Court considered the situation of a claimant from Kosovo and had this to say: "In the case at bar, there is no difference in interest between the UN forces and the government of the Federal Republic of Yugoslavia. As such, the Board did not commit an error in determining that state protection was available to the applicant through non-state actors. ... The presence of UN forces is not evidence of a breakdown of the state apparatus in Yugoslavia or Kosovo. The UN forces and security police in Kosovo work in conjunction with the local Kosovo police service to maintain order." 6.1.10 Adequacy of Protection - StandardThe following is added to footnote 30 (at the end), page 6-7: The Court cautions in Mohacsi, Janos v. M.C.I. (F.C.T.D., no. IMM-1298-02), Martineau, April 11, 2003; 2003 FCT 429, that where there are doubts concerning the effectiveness of the means taken by the government to protect its citizens, the Board must conduct a "reality check" with the claimants’ own experiences. The following is added to footnote 32, after the reference to Horvath, page 6-9: See also Jonas, Laszlo v. M.C.I. (F.C., no. IMM-2726-03), Mosley, August 4, 2004; 2004 FC 1066. The following is added to footnote 33, page 6-9: Another case where the Court held that the RPD set too high a standard for state protection is M.C.I. v. Ortega, Alberto Sandova (F.C., no. IMM-2910-03), O'Keefe, October 20, 2004; 2004 FC 1463. The following is added to footnote 35, page 6-10: See also Persue, Yolande v. M.C.I. (F.C., no. IMM-5827-03), Snider, July 29, 2004; 2004 FC 1042; Villanueva, Carlos Wilfredo Flores v. M.C.I. (F.C., no. IMM-6897-03), Pinard, October 1, 2004; 2004 FC 1320; and Mejia, Alberto v. M.C.I. (F.C., no. IMM-2757-03), Pinard, June 30, 2004; 2004 FC 925. 6.1.11. Source of ProtectionThe following is added to footnote 36, page 6-10: In Ajieh, John Kenneth Andzayie v. M.C.I. (F.C.T.D., no. IMM-4985-01), MacKay, March 3, 2003; 2003 FCT 266 , the Court, in obiter, notes that "potential assistance from a non-governmental agency is unlikely to be accepted as a satisfactory substitute for state protection." The following is added to footnote 37, after the reference to Molnar, before Nagy, page 6-11: See also Malik, Gurjit Singh v. M.C.I. (F.C.T.D., no. IMM-1918-02), Tremblay-Lamer, April 17, 2003; 2003 FCT 453 , where the Court stated that "… there is no obligation on an individual to seek counselling, legal advice, or assistance from human rights agencies if the police is unable to help." The same approach is evident in Mohacsi, Janos v. M.C.I. (F.C.T.D., no. IMM-1298-02), Martineau, April 11, 2003; 2003 FCT 429 . The following is added to footnote 38, page 6-11: See also De Baez, Maria Beatriz Arguello v. M.C.I. (F.C.T.D., no. IMM-3208-02), Dawson, June 26, 2003; 2003 FCT 785 , where the Court stated that "… the actions of some police officers does not obviate the need to seek protection from the authorities. Discrimination by some police officers is not sufficient proof of the state’s unwillingness to provide, or inability on the part of the applicants, to seek protection." See also Antypov, Roksana v. M.C.I. (F.C., no. IMM-4251-04), Kelen, November 15, 2004; 2004 FC 1589, where the Court, relying on Kadenko, noted that the refusal of certain police officers to take action cannot, in itself, make the state incapable of doing so. The following is added to footnote 41, page 6-12: See Virag, Istvan Pal v. M.C.I. (F.C.T.D., no. IMM-2761-02), Simpson, June 2, 2003; 2003 FCT 698 where the Court stated that Szucs is to be preferred to Molnar. See also Szorenyi, Gabor v. M.C.I. (F.C., no. IMM-2817-02), O’Keefe, November 25, 2003; 2003 FC 1382 where the Court noted that there is a long line of cases that have found it reasonable for the Board to require claimants to exhaust avenues of protection and redress in addition to the police where it has been available. 6.3 APPLICATION OF THE LAW TO SPECIFIC SITUATIONSThe following is added at the end of the text, page 6-16: In situations involving sectarian violence, the police may sometimes choose to offer only a passive response i.e., advise a claimant to refrain from lodging a complaint as that could ignite the situation even further. In Hussain, Majeed v. M.C.I. (F.C.T.D., no. IMM-2345-02), O’Reilly, April 8, 2003; 2003 FCT 406 , in considering a claim from Pakistan, the Court noted that "…police intervention, in certain circumstances, can be counterproductive. Police authorities have to make choices, taking account of priorities, tactics and community relations. They may sometimes reasonably conclude that the better course is for them to stay out of certain events." The following is added to footnote 54, page 6-15: See also Yokota, Aldo Renato Rossi v. M.C.I. (F.C., no. IMM-8386-03), Lutfy, September 8, 2004; 2004 FC 1226. The following is added to footnote 57, page 6-16, after the reference to Manorath: See also Arguedas, Maricela Los Angeles Alfaro v. M.C.I. (F.C., no. IMM-5766-02), Lemieux, January 23, 2004; 2004 FC 112, The following is added to footnote 57, page 6-16, after the reference to Williams: See also Clyne, Timeka Marsha v. M.C.I. (F.C., no. IMM-7653-03), O'Reilly, November 29, 2004; 2004 FC 1670.
CHAPTER 7 - ADDENDUM #27. CHANGE OF CIRCUMSTANCES AND COMPELLING REASONS7.1. CHANGE OF CIRCUMSTANCES7.1.1 Standard of Proof and CriteriaThe following is added to the text at the end of the section, on page 7-2: In Alfarsy,1 the Federal Court held that the question of whether the changes are effective and durable is a question of law to be reviewed on a standard of correctness, whereas the particular circumstances of the claimant are a question of fact to be reviewed on a standard of patent unreasonableness. However, in Hussain,2 the Federal Court referred to the Court of Appeal decision in Yusuf and found that the issue of "changed circumstances" is one of fact, not law. In Fernandopulle,3 the Federal Court agreed to certify a question about whether the presumption found in paragraph 45 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status – namely, that once past persecution is shown, this creates a presumption of future persecution – is part of Canadian law. 7.1.2. ApplicationThe following is added to the text at the end of the section, on page 7-5: The above 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.4 The following case is added to footnote 19, page 7-5: In Alfarsy, supra, footnote 1 , the Court stated that declarations of intent must be examined against the history of the conflict with a view to evaluating the likely permanence of the changes. 7.1.3. Reasons and Assessment of EvidenceThe following case is added to footnote 25, page 7-6: In Alfarsy, supra, footnote 1 , the Court held that if the legal action against the claimants was politically based, there is no reason to assume that they would be treated differently from other party members who had previously suffered persecution, legal harassment and incarceration. 7.1.4. NoticeThe following is added to the text at the end of the section, on page 7-7: However, in Alfarsy,5 the Federal Court held that there was no obligation on the Member to do more than indicate that objective basis was an issue, since the claimants should be aware that the definition of a Convention refugee is forward looking and can present evidence at the time of the hearing that an objective basis existed because the changes were not effective and durable. 7.2. COMPELLING REASONS7.2.1. ApplicabilityThe following is added to the text after the quotation at the top page 7-8: In Isacko,6 the Federal Court held that section 108(4) of the Immigration and Refugee Protection Act is very similar to section 2(3) of the Immigration Act and therefore, the jurisprudence that has developed with respect to section 2(3) of the former Act may be used as guidance in the interpretation of section 108(4) of IRPA. The only difference between the two provisions is that the new one specifies that “compelling reasons” may arise out of persecution, torture, treatment or punishment while the old one is limited to previous persecution. The following case is added to footnote 36, page 7-9 and Naivelt, Andrei v. M.C.I. (F.C., no. IMM-9552-03), Snider, September 17, 2004; 2004 FC 1261. The following is added to footnote 37, page 7-9: In Kudar, Peter v. M.C.I. (F.C., no. IMM-2218-03), Layden-Stevenson, April 30, 2004; 2004 FC 648, the Court held that since the RPD determined that protection was available to the claimant, and did not rely solely on a change in circumstances, the compelling reasons exception did not apply. The following case is added to footnote 38, page 7-9: Abdul, Gamel v. M.C.I. (F.C.T.D., no. IMM-1796-02), Snider, February 28, 2003; 2003 FCT 260. 7.2.2 Duty to Consider "Compelling Reasons"The following is added to the text at the end of the first paragraph on page 7-10: 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.7 7.2.3 Meaning of "Compelling Reasons"The following is added to footnote 53, page 7-12: See also Suleiman, Juma Khamis v. M.C.I. (F.C., no. IMM-1439-03), Martineau, August 12, 2004; 2004 FC 1125. In Kulla, Saimir v. M.C.I. (F.C., no. IMM-6837-03), von Finckenstein, August 24, 2004; 2004 FC 1170, the Court upheld the Board's finding that the incidents were merely abhorrent but not sufficiently atrocious or appalling to trigger the “compelling reasons” exception. The following is added to the text after the second paragraph, on page 7-13: The issue arose again in Suleiman,8 where the Federal Court reiterated that section 104(8) of IRPA 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. Consideration should be given to the claimant's age, cultural background and previous social experiences. Being resilient to adverse conditions will depend on a number of factors which differ from one individual to another. 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. There does not appear to be any support in the jurisprudence for the proposition, advanced in Suleiman, that where objectively the persecution may not be considered grave or serious enough alone, it may in the particular circumstances of the claimant, given his or her subjective state of mind, nevertheless give rise to compelling reasons. The following is added to the text after the fourth paragraph that ends with a reference to s. 108 of IRPA, on page 7-13: In Hitimana,9 the Court reiterated that the existence of "compelling reasons" in a given case is a question of fact, and although the claimant contended that the incidents he experienced resulted in trauma (as a teenager, 5-7 years before his arrival in Canada, he witnessed the murder and disappearance of close family members in Rwanda), neither he nor an expert substantiated this statement. Moreover, as the claimant demonstrated that he could adapt well and was resourceful, it was not patently unreasonable to conclude that he was not suffering from any psychological trauma that constituted a compelling reason. The following is added to footnote 61, page 7-13: See also Suleiman, supra, footnote 8. The following is added to footnote 56, page 7-13: The appeal in this case was dismissed by the Court of Appeal on May 21, 2002 because the appeal record was not filed on time. The following is added to the text at the end of the first partial paragraph on page 7-14: However, the obiter comment in Velasquez was not followed in Kulla,10 where the Federal Court held that the claimant must suffer the mistreatment directly. The claimant may, however, rely on the mistreatment of family members in addition to his or her own mistreatment. The following is added to the text after the first sentence in the first full paragraph on page 7-14: The generalized character of past persecution in a particular country should not serve as a bar to the application of the “compelling reasons” exception.11 The following is added to footnote 66, page 7-14: But see Ahmed, Jawad v. M.C.I. (F.C., no. IMM-6673-03), Mosley, August 5, 2004; 2004 FC 1076, where the Court upheld the Board's finding that the claimant's voluntary return to his country was indicative of a lack of subjective fear. 7.3. SUR PLACE CLAIMSThe following is added to the text at the end of the first section, on page 7-16: A tribunal is not required to consider arguments concerning refugee sur place where the claimant has been judged not to have presented any credible evidence substantiating the claim.12 7.3.1. Claimant’s Activities AbroadThe following is added to the text after the first paragraph on page 7-17: In Ghribi,13 the Court found the claimant’s testimony concerning the Canadian Minister’s public statements about Tunisian refugee claimants and the consequent response of the Tunisian authorities in Canada and in Tunisia to be highly speculative, and thus there was insufficient evidence to establish that they would have the alleged impact so as to support a claim of refugee sur place. The following is added to the text at the end of the on page 7-17 (after the quote): In Zewedu,14 the Court held that it was proper for the Board to examine a refugee claimant’s expression of political opinion in Canada to ensure that the expression is genuine, as the matter of motive goes to the genuineness of the subjective fear. However, the Board should also go on to examine whether there exists an objective basis for the claimant’s fear of persecution. The following is added to the text after the first paragraph on page 7-18: In Ghasemian,15 the Court held that, once the Board accepted that the claimant had converted to Christianity while in Canada and now risked severe punishment in Iran as an apostate, it had to consider whether the claimant would be viewed as an apostate regardless of the motive for her conversion. While it was open to the Board to reject her sur place claim on the basis of a lack of subjective fear, the Board misconstrued her evidence regarding her (alleged lack of) fear of reprisals and applied the wrong test by rejecting her claim on the basis that it was not made in good faith, i.e., she did not convert for a purely religious motive. The Court followed the reasoning of the English Court of Appeal in Danian16 that opportunistic claimants are still protected under the Convention if they can establish a genuine and well-founded fear of persecution for a Convention ground. With respect to exit laws, however, in Zandi,17 the Court followed Valentin18 in holding that a defector cannot gain legal status in Canada under the Immigration and Refugee Protection Act by creating a “need for protection” under section 97 by freely, of their own accord and with no reason, making themselves liable to punishment by violating a law of general application in their home country about complying with exit laws. (For a discussion of this topic see Chapter 9 – section 9.3.5. Exit Laws.)
CHAPTER 8 - ADDENDUM #28. INTERNAL FLIGHT ALTERNATIVE (IFA)8.2 TWO-PRONGED TESTThe following is added to footnote 11, page 8-2: In applying the principle set out in Thirunavukkarasu that the IFA must be an area that is realistically attainable, the Court in Playasova1 stated that the failure of the RPD to consider that the claimant could only relocate to the IFA if she had the means to pay bribes to obtain a propiska was an error. 8.3. NOTICE – BURDEN OF PROOFThe following is added to the text of the first paragraph, after the second full sentence on page 8-2: The Immigration and Refugee Protection Act (IRPA) does not automatically put claimants on notice that IFA is an issue in the claim. The principles regarding fair notice expressed in Rasaratnam and Thirunavukkarasu are still relevant under IRPA.2 The following is added as a new section on page 8-3: 8.3(1)3 STANDARD OF REVIEWThe standard of review to be applied by the Federal Court to internal flight alternative findings by the RPD is patent unreasonableness.4 8.4.1 Fear of PersecutionThe following is added to footnote 22, page 8-4; A failure to address the question of persecution by national authorities when considering an internal flight alternative is a reviewable error.5 8.4.2 Reasonable in All the CircumstancesThe following is added to footnote 34, page 8-7: In Ramachanthran,6 the Court found that the failure of the RPD to consider the impact on the claimant of returning to the IFA without her minor son, because the latter had been found to be a Convention refugee, was a reviewable error.
CHAPTER 9 - ADDENDUM #29. PARTICULAR SITUATIONS9.3.3. Policing Methods, National Security and Preservation of Social OrderThe following is added to footnote 54, page 9-12: See also Murugamoorthy,1 where the Court agreed that, while in general short detentions for legitimate or enforcement purposes do not constitute persecution, the Board must consider the particular circumstances of the claimant, including factors such as the person’s age and prior experiences, in deciding whether he or she was persecuted. Kularatnam2 affirms this position. 9.3.7. One-Child Policy of ChinaThe following is added to the text by way of a footnote to the first paragraph in the section, on page 9-19: In both Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.) at 220-221 and Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at paragraph 118, it was recognized that the fear of persecution under China’s one-child policy is largely dependent on the practices of the relevant local authority. A review of the documentary evidence in Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983 indicated that this was still the case at the time of the hearing. 9.3.8.1. Restrictions Upon WomenThe following is added to the text as a new paragraph after footnote 127, on page 9-25: Two recent cases have dealt with a woman’s breach of a dress code in a democratic, secular state. A Turkish law bans the wearing of headscarves in government places or buildings. In Sicak,3 the Board rejected a claim based on religion and membership in a particular social group, namely, women wearing the headscarf in Turkey. The Board did not believe that the claimant was involved in any protest nor that she was arrested or mistreated by the police, and found a lack of subjective fear and no persecution within the meaning of section 96 of IRPA. Without specifically referring to section 97 of IRPA the Board analyzed (and the Court appears to have agreed with the analysis) the objective basis of the claim. The Board noted that:
and concluded that the claimant did not face persecution but prosecution for a violation of a law of general application. The Court in Kaya4 was consistent with Sicak. In referring to the information contained in point (c) above, the Court noted that "[l]aws must be considered in their social context". Mrs. Kaya is entitled to practice her religion in public, and to wear her Hejab (headscarf) in public. Namitabar v. Canada (Minister of Citizenship and Immigration), [1994] 2 F.C. 42 (T.D.) and Fathi-Rad, Farideh v. S.S.C. (F.C.T.D., no. IMM-2438-93), McGillis, April 13, 1994 both deal with Iranian women who were obliged by Iranian Law to wear the Chador. "It would be simple, but wrong, to say that the right of Iranian women not to wear the Chador and the right of Turkish women to wear the Hejab everywhere is a manifestitation of the same fundamental right".5 Kaya was cited with approval in Aykut.6 The Court noted, in obiter, that the Turkish law applies to all forms of religious dress or insignia including beards, cloaks, turbans, fez, caps, veils, and headscarves…. “In fact, there is evidence that, insofar as medical or university cards are concerned, the requirement for a photograph showing one's full face is definitely applied to men wearing beards.” (para. 41). 9.4. Indirect Persecution and Family UnityThe following is added to footnote 144, page 9-29: However, in Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983 , the Court held that "any persecution which the second child Canadian-born infant will experience in China is directly experienced by the parents, and is not ‘indirect persecution’." But see Dombele, Adelina v. M.C.I. (F.C.T.D., no. IMM-988-02), Gauthier, February 26, 2003; 2003 FCT 247. where the CRDD determined the claimant’s husband to be a refugee, but not the claimant or her daughters. The Court held that the panel was right in finding that the persecution affecting the claimant’s husband and which could affect the claimant and her daughters was indirect persecution, thus not persecution within the meaning of the Convention (Pour-Shariati).
CHAPTER 10 - ADDENDUM #210. EXCLUSION CLAUSES10.1 ARTICLE 1E10.1.1. Ability to Return and RemainThe following is added to the text at the end of the section, on page 10-3: The issue of the operative time for assessing the right to return to a country was further confused by the decision in Hakizimana,1 where the Trial Division endorsed the view taken in Choovak 2 and Mahdi,3 that the proper time for determining the existence of the right to return to a country is not the date of the hearing, but the date of the application for admission to Canada. The Court upheld the CRDD?s decision to exclude the claimant, a citizen of Rwanda, under Article 1E. Notwithstanding the fact that the claimant had obtained her residency card by way of a bribe to a representative of the authorities of Cameroon, the Court held that the CRDD did not err in finding that this document was authentic and official. The Court found that the claimant had lost her right of return to Cameroon when she left on forged documents, without an exit visa and by staying outside of Cameroon for over 12 consecutive months. She thus would have been denied entry to Cameroon and a renewal of her residency card, and did not have the right to return to Cameroon when she appeared at the point of entry in Canada. The Court determined that the panel’s decision regarding the lack of fear was reasonable, given that it was the claimant’s own fault she had lost her right to return to Cameroon. Moreover, the CRDD was justified in concluding that it was not reasonable for the claimant not to have an exit visa as required by Cameroon law, and that she could not then rely on the lack of a right to return as a means of arguing that the exclusion clause should not be applied. 10.1.1.1. Onus to Renew StatusThe following case is added to footnote 12, page 10-3: Hassanzadeh, Baharack v. M.C.I. (F.C., IMM-3545-03), Blais, December 18, 2003; 2003 FC 1494. The following is added to the text at the end of the section, on page 10-4: However, the Federal Court took a more rigorous approach in Choezom.4 The claimant, who was born in India of Tibetan parents, was considered to be a citizen of China. As a Tibetan resident of India, she was issued a Registration Certificate (RC), which was renewed annually. When she travelled to the United States for the purposes of study and employment (she resided there from 1994 to 2003), she was issued an Identity Certificate (IC), which she continued to renew periodically. The RPD determined that the claimant had a right of return to India, that Indian authorities would issue her a RC for Tibetans upon return to India, and that she would not be at risk of being deported to Tibet. The RPD took into account the fact that the claimant and her parents, who continued to reside in India, had no difficulties in returning to India after travelling abroad. The Court held that the RPD had erred in excluding the claimant under Article 1E. To return to reside in India, the claimant must obtain a NORI (No Objection to Return to India), a valid IC and a visa. The requirement for annual RCs, ICs, visas, NORIs and the prohibition to visit certain locations within India are all antithetical to the “basic rights of status as nationals”. All of these rights are not permanent and their renewal is at the discretion of the Indian government. The fact that there is no evidence that the Indian government has so far refused to issue RCs, ICs, visas or NORIs does not mean that it has given up the right to do so. Tibetan residents of India do not enjoy the same basic rights of status as Indian citizens enjoy. 10.1.3. Fear of Persecution in the Article 1E CountryThe following is added to the text at the end of the section, on page 10-7: In Zhao,5 the Federal Court held that the RPD had properly assessed the availability of state protection from a criminal gang in Brazil, where the claimant, a Chinese national, had permanent residence status. In Mobarekeh6, the Federal Court held that before the Board considers the issue of state protection with respect to a country other than the claimant's country of nationality, the panel should make clear the basis for considering that issue (i.e., potential exclusion under Article 1E). ARTICLE 1F10.2 ARTICLE 1F(a): Crimes Against Peace, War Crimes and Crimes Against HumanityThe following is added to the text at the end of the section, on page 10-8: Article 1F(a) must also 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.7 10.2.3. Crimes Against HumanityThe following is added to footnote 38, page 10-9: In Sungu v. Canada (Minister of Citizenship and Immigration) [2003] 3 F.C. 192 (T.D.); 2002 FCT 1207, the Court affirmed that Mobutu’s regime was engaged in torture and had committed international crimes, namely crimes against humanity. 10.2.5.1. DuressThe following is added to footnote 42, page 10-10: In Kathiravel, Sutharsan v. M.C.I. (F.C.T.D., no. IMM-204-02), Lemieux, May 29, 2003; 2003 FCT 680, the Court found that the CRDD made no error when it determined, regarding the element of proportionality, that the harm inflicted on innocent Tamils identified by the claimant was in excess of that which would have been directed at the claimant. 10.2.6. ComplicityThe following is added to footnote 47, page 10-11: In Alwan, Riad Mushen Abou v. M.C.I. (F.C., no. IMM-1582-02), O’Keefe, January 31, 2003; 2003 FCT 109 the exclusion of the claimant, a former member of the South Lebanese Army (the SLA), was overturned because the CRDD failed to consider the issue of "common purpose". In Abbas, Redha Abdul Amir v. M.C.I. (F.C., no. IMM-6488-02), Pinard, January 9, 2004; 2004 FC 17, the Court upheld the findings of the RPD that the claimant was complicit in the crimes against humanity committed by the regime in Iraq because for 22 years the claimant held positions of trust within the Iraqi government. He had knowledge of certain ongoing and regular acts constituting crimes against humanity and never took any measures to prevent these acts or to dissociate himself from these activities. Similarly, in Omar, Idleh Djama v. M.C.I. (F.C., no. IMM-2452-03), Pinard, June 17, 2004; 2004 FC 861, the RPD's decision to exclude was upheld as the claimant had been an ambassador abroad for the regime in Djibouti during a period of repression and persecution of the civilian population. The claimant had occupied the highest position in the most important mission abroad, had knowledge of the crimes committed by his government and had never tried to dissociate himself from these crimes. However, the decision to exclude was not upheld in Saftarov, Hasan v. M.C.I. (F.C., no. IMM-4718-03), O'Reilly, July 21, 2004; 2004 FC 1009, as there was no evidence of knowing participation in serious crimes. The Court found that the RPD could not assume, based solely on the claimant's long-time, low-ranking membership in the police, that he was a party to crimes against humanity. The following is added to footnote 50, page 10-12: In Sungu,8 the Court found that the panel had applied an inappropriate principle in finding complicity in that there was no evidence the claimant shared in the common purpose in the perpetration of crimes by the Mobutu regime. 10.2.6.1. Mere Membership in an OrganizationThe following is added to footnote 51, page 10-12: The Court held in M.C.I. v. Tshienda, Mulumba Freddy (F.C.T.D., no. IMM-3984-01), O’Keefe, March 27, 2003; 2003 FCT 360 that it was open to the CRDD not to exclude the claimant since he was a civilian employee at city hall in the Democratic Republic of Congo and did not work for the police or the military. The following is added to footnote 52, page 10-13: In Harb9, 4, the CRDD did not err in concluding that the South Lebanese Army (SLA) is an organization with a limited, brutal purpose. In Chowdhury, Mohammad Salah v. M.C.I. (F.C., no. IMM-5041-02), Blanchard, June 13, 2003; 2003 FCT 744 the Court found that the Awami League (AL) is not an organization that is principally directed to a limited brutal purpose. Therefore, the claimant’s membership in the AL did not necessarily make him a knowing participant in persecutorial acts. Similarly, in Ruiz, Mario Roberto Cirilo v. M.C.I. (F.C., no. IMM-4644-02), Tremblay-Lamer, October 10, 2003; 2003 FC 1177 the Court found that the panel did not have enough evidence to determine that the Peruvian Navy was an organization directed to a limited, brutal purpose. In Bukumba, Madeleine Mangadu v. M.C.I. (F.C., no. IMM-3088-03), von Finckenstein, January 22, 2004; 2004 FC 93, the Court upheld the exclusion of the claimant because as an employee of the CSE in the Democratic Republic of Congo she had not been merely a member of an organization which from time to time committed international offences. Rather, she had been a long-time employee who had agreed voluntarily to collect information on people and reported directly to the head of the CSE. The following is added to the text after the second quote, on page 10-12: In determining whether an organization is "principally directed to a limited, brutal purpose," the Federal Court in Pushpanathan did not agree that the organization must be one that engages solely and exclusively in acts of terrorism.10 The Court held that: … where there is no evidence that political objectives can be separated from militaristic activities, an organization could still be found to have a limited, brutal purpose. There is no evidence to suggest that the LTTE's terrorist activities can be separated from other objectives it may have. The LTTE resorts to terrorist methods to reach their objectives and this suggests that the LTTE is an organization with a brutal and limited purpose.11 The following is added to footnote 53, page 10-13: In Allel, Houcine v. M.C.I .(F.C.T.D., no. IMM-6593-00), Nadon, April 3, 2002; 2002 FCT 370 the Court upheld the exclusion of the claimant who having worked for the Algerian police, had knowledge of the torture of detainees. Similarly, in Khan, Aseel v. M.C.I. (F.C.T.D., no. IMM-422-02), Kelen, March 14, 2003; 2003 FCT 309 the Court upheld the exclusion of the claimant who, as a pilot in the Afghan Air Force, had knowledge of and was therefore complicit in the crimes against humanity committed by the Afghan military. The following is added to footnote 54, page 10-14: In Akanni, Olusegun (Segun) Adetokumbo (Adejokumb) Kabir v. M.C.I. (F.C.T.D., no. IMM-5405-02), Gauthier, May 27, 2003; 2003 FCT 657 the Court upheld the finding of complicity as the RPD had not believed that the claimant was unaware of the violence committed by the group in which he had participated (the Gani Adams’s faction of the Oodua Peoples Congress). 10.3. ARTICLE 1F(b): Serious Non-Political Crimes10.3.1. "Serious Crimes"The following is added to the text at the end of the first paragraph, page 10-16: In Xie12 the Federal Court of Appeal upheld the finding of the Federal Court, and concluded that a claimant can be excluded from refugee protection by the RPD for a purely economic offence. The following is added to footnote 64, page 10-16: In Nyari, Istvan v. M.C.I. (F.C.T.D., no. IMM-6551-00), Kelen, September 18, 2002; 2002 FCT 979, the Court found that the CRDD was entitled to find that the claimant’s escape from prison while he was serving a twenty-month sentence for causing bodily harm was not a "serious crime" in the context of 1F(b). In Sharma, Gunanidhi v. M.C.I. (F.C.T.D., no. IMM-1668-02), Noël, March 10, 2003; 2003 FCT 289 the Court upheld the finding of the Refugee Division that armed robbery was a "serious" non-political crime. In Xie, Rou Lan v. M.C.I. (F.C., no. IMM-923-03), Kelen, September 4, 2003; 2003 FCT 1023 the Court held that an economic crime not involving any violence can be a 1F(b) crime. In this case the claimant had been charged with embezzling the equivalent of 1.4 million Canadian dollars. In Liang, Xiao Dong v. M.C.I. (F.C., no. IMM–1286-03), Layden-Stevenson, December 19, 2003; 2003 FC 1501 the exclusion under 1F(b) of the claimant was upheld. He had been arrested in Canada on an Interpol warrant for conspiracy to commit murder, leading a criminal organization and being involved in a corruption scandal. The following is added to the text at the end of the third paragraph, on page 10-16: However, the Federal Court of Appeal in Zrig13 refused to limit Article 1F(b) to crimes that are extraditable pursuant to a treaty. Rather, it interpreted the reference to extraditable crimes in Pushpanathan as an indication of the nature and seriousness of the crimes that may fall under 1F(b). The Federal Court of Appeal in Chan made the following obiter comments with respect to determining the "seriousness" of a crime: … had the appellant engaged in similar conduct in Canada, he would have been convicted of an offence such as drug trafficking for which a maximum prison term of ten years or more could have been imposed. In other words, for present purposes I will presume, without deciding, that a serious non-political crime is to be equated with one in which a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada.14 (emphasis added) Given these obiter remarks it cannot be assumed that a "serious" non-political crime is automatically one in which a maximum sentence of 10 years or more could have been imposed. Rather, this determination depends on the nature of the crime committed; there must be a close examination of the acts committed by the claimant. 10.3.2. "Non-Political Crimes"The following is added to footnote 67, page 10-17: In A.C. v. M.C.I. (F.C., IMM-4678-02), Russell, December 19, 2003; 2003 FC 1500 the Court held that the brutal and systematic killing of the President’s family cannot be considered proportional to the objective of removing a hated political figure. 10.3.3. ComplicityThe following is added to the text at the end of the section, on page 10-18: The Federal Court of Appeal in Zrig15 answered the certified question in the affirmative and held that neither Ward nor Pushpanathan precluded the application to Article 1F(b) of the principles of complicity by association laid down in Sivakumar and Bazargan. The following is added as a new title, page 10-18: 10.3.4. BalancingIn Xie,16 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. 10.4. ARTICLE 1F(c): Acts Contrary to the Purposes and Principles of the United NationsThe following is added to footnote 77, page 10-19: In Bitaraf, Babak v. M.C.I. (F.C., no. IMM-1609-03), Phelan, June 23, 2004; 2004 FC 898, the Court found that the RPD erred when it followed the approach used for Article 1F(a) rather than for Article 1F(c) and failed to identify which purposes and principles of the United Nations were at issue. 10.5. BURDEN AND STANDARD OF PROOFThe following is added to footnote 91, page 10-21: In Alwan, Riad Mushen Abou v. M.C.I. (F.C., no. IMM-8204-03), Layden-Stevenson, June 2, 2004; 2004 FC 807, the Court concluded that 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.
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