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CHAPTER 4
4. GROUNDS OF PERSECUTION
4.1. GENERALLY
The definition of a Convention refugee
states that a claimant's fear of persecution must be "by reason of" one
of the five enumerated grounds - that is 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.1
It is for the Refugee Division to determine
the ground, if any, applicable to the claimant's fear of persecution.2
This is consistent with the overall obligation of the Refugee Division
to determine whether the claimant is a Convention refugee. If a claimant
identifies the ground(s) which he or she thinks are applicable to the
claim, the Refugee Division is not limited to considering only those grounds
and must consider the grounds of the definition as raised by the evidence
in making their determination. However, once the Refugee Division has
found that the claimant's fear of persecution is by reason of one of the
grounds it is not necessary to go on to consider all of the other grounds.
When determining the applicable grounds,
the relevant consideration is the perception of the persecutor. The persecutor
may perceive that the claimant is a member of a certain race, nationality,
religion, or particular social group or holds a certain political opinion
and the claimant may face a reasonable chance of persecution because of
that perception. This perception may not conform with the real situation.3
Reference should be made to the Guidelines
on Women Refugee Claimants Fearing Gender-Related Persecution:
Update issued by the Chairperson pursuant to section 65(3) of the
Immigration Act on November 25, 1996, for an analysis of
the grounds as they relate to gender-related persecution.4
The fact that the motivation for the
mistreatment is mixed (e.g.,
partly criminal, partly political) does not mean that a nexus cannot be
established.5
4.2. RACE
There is currently no Federal Court
jurisprudence that provides a detailed analysis of this ground of persecution.
Reference should be made to the UNHCR
Handbook, at paragraphs 68 to 70, for a description of this
ground. According to the Handbook, "race
has to be understood
in its widest sense to include all kinds of ethnic groups that are referred
to as 'races' in the common usage." (paragraph 68)
The Court of Appeal has said that where
race is one of the defining elements of a group to which the claimant
belongs (and fears persecution on account of) then the ground of persecution
is race. It is not necessary to look at other grounds.6
4.3. NATIONALITY
This ground is discussed in the UNHCR
Handbook at paragraphs 74 to 76. The Handbook points
out that "nationality" in this case encompasses not only "citizenship"
but it refers also to ethnic or linguistic groups. According to the Handbook
this ground may overlap with race.
The Court in Hanukashvili,7
citing Lorne Waldman, noted the difference between "nationality" as a
ground and "nationality" meaning citizenship. When used as one of the
five grounds, "nationality" does not mean the same thing as "citizenship";
however it has the same meaning as citizenship for the purpose of subparagraph 2(1)(a)(i)
of the Immigration Act.
4.4. RELIGION
Persecution by reason of a claimant's
religion may take many forms.8
Freedom of religion includes the right to manifest the religion in public,
or private, in teaching, practice, worship and observance.9 Religion itself can take different manifestations.10 As is the case with the other Convention refugee
grounds, it is the perception of the persecutor that is relevant.11
The Federal Court Trial Division in
Kassatkine12
considered the case of a religion which has public proselytizing as one
of its tenets. In this case, proselytizing was contrary to the law. The
Court stated:
A law which requires a minority of citizens to breach the principles
of their religion
is patently persecutory. One might add, so long
as these religious tenets are not unreasonable as, for example, exacting
human sacrifice or the taking of prohibited drugs as a sacrament.
There have been cases dealing with the
issue of persecution of members of the Ahmadi religion in Pakistan and
the application of Ordinance XX. For these cases and a discussion
of the nature of the enforcement of Ordinance XX see Chapter 9,
section 9.3.8.2.
The UNHCR
Handbook can be referred to at paragraphs 71 to 73.
4.5. PARTICULAR SOCIAL GROUP
The Supreme Court of Canada in Ward
provided an interpretative foundation for the meaning of the ground of
"membership in a particular social group". Mr. Justice
LaForest stated as follows:
The meaning assigned to "particular
social group" in the Act should take into account the general
underlying themes of the defence of human rights and anti-discrimination
that form the basis for the international refugee protection initiative.13
The Court further indicated that the
tests proposed in Mayers,14 Cheung,15
and Matter of Acosta16
provided a "good working rule" to achieve the above-noted result and identified
three possible categories of particular social groups that emerge from
these tests:
- 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;17
and
- groups associated by a former voluntary status, unalterable due
to its historical permanence.18
The Court went on to state:
The first category would embrace individuals fearing persecution
on such bases as gender, linguistic background and sexual orientation,
while the second would encompass, for example, human rights activists.
The third branch is included more because of historical intentions, although
it is also relevant to the anti-discrimination influences, in that one's
past is an immutable part of the person.19
In setting out three possible categories
of particular social groups, the Court made it clear that not all groups
of persons will be within the Convention refugee definition. There are
some groups from which the claimant can, and should be expected to, dissociate
him- or herself because membership therein is not fundamental to the human
dignity of the claimant.20
A distinction must be drawn between
a claimant who fears persecution because of what he or she does as an
individual and a claimant who fears persecution because of his or her
membership in a particular social group. It is the membership in the group
which must be the cause of the persecution and not the individual activities
of the claimant.21
This is sometimes referred to as the "is versus does" distinction.
A particular social group cannot be defined solely
by the fact that a group of persons are objects of persecution.22
The rationale for this proposition is that the Convention refugee definition
requires that the persecution be "by reason of" one of the grounds, including
particular social group.23
Subsequent to the Warddecision,
the Court of Appeal in Chan24
interpreted the three possible categories of particular social groups.
The majority of the Court, in concurring judgments, held that the terms
"voluntary association" and "voluntary status" referred to in Ward
categories two and three (above) refer to active or formal association.
The dissenting judgment disagreed with this interpretation.
Chan was then heard by the
Supreme Court of Canada25
and the majority of the Supreme Court concluded that the claimant had
failed to present evidence on the objective element as to the well-foundedness
of his fear of persecution (forced sterilization).26 The majority did not address the issue of particular
social group or whether there was an applicable ground in this case.27
The dissenting judgment by Mr. Justice
LaForest, however, dealt extensively with the ground of particular social
group. The minority's comments on this issue carry considerable persuasive
authority, inasmuch as they were not contradicted by the majority, and
represent the views of a significant number of Supreme Court Justices.
Mr. Justice LaForest (who wrote
the judgment in Ward clarified some of the issues which were
raised in Ward:
- The Ward decision enunciated a working rule and "not an unyielding
deterministic approach to resolving whether a refugee claimant could
be classified within a particular social group."28
The paramount consideration in determining a particular social group
is the "general underlying themes of the defence of human rights and
anti-discrimination."29
- The "is versus does" distinction was not intended to replace the Ward
categories. There must be proper consideration of the context in which
the claim arose.30
- With respect to category two of the Ward categories and the
position taken by the Court of Appeal in Chan that this category
required an active association between members of the group, Mr. Justice
LaForest stated: "In order to avoid any confusion on this point let
me state incontrovertibly that a refugee alleging membership in a particular
social group does not have to be in voluntary association with other
persons similar to him- or herself."31
Some examples of particular social groups
identified by the jurisprudence are as follows:
- the family;32
- homosexuals (sexual orientation);33
- trade unions;34
- the poor;35
- wealthy persons or landlords were found by the Trial Division not
to be particular social groups.36
The Court focused on the fact that these groups were no longer being
persecuted although they had been in the past.37
- women subject to domestic abuse;38
- women forced into marriage without their consent;39
- women who have been subjected to exploitation resulting in the violation
of the person and who, in consequence of the exploitation have been
tried, convicted and sentenced to imprisonment.40
- new citizens of Israel who are women recently arrived from elements
of the former Soviet Union and who are not yet well integrated into
Israeli society, despite the generous support offered by the Israeli
government, who are lured into prostitution and threatened and exploited
by individuals not connected to government, and who can demonstrate
indifference to their plight by front-line authorities to whom they
would normally be expected to turn for protection;41
- women subject to circumcision;42
- persons subject to forced sterilization;43
- children of police officers who are anti-terrorist supporters;44
- former fellow municipal employees terrified and terrorized by what
they know about the ruthless, criminal mayor;45
- educated women.46
- "law abiding citizens" was held not to be a particular social
group.47
4.6. POLITICAL OPINION
A broad and general interpretation of
political opinion is "any opinion on any matter in which the machinery
of state, government, and policy may be engaged".48
However, this does not mean that only political opinions regarding the
state will be relevant. As noted in Chapter 3, there is no requirement
that the agent of persecution be the state.
The Supreme Court of Canada in Ward
stated that there are two refinements to political opinion within the
context of the Convention refugee definition.
The first is that "'the political opinion
at issue need not have been expressed outright."49
The Court recognized that the claimant may not always articulate his or
her beliefs and that the political opinion will be perceived from the
claimant's actions or otherwise imputed to him or her.50
The second refinement in Ward
is that the "political opinion ascribed to the claimant" by the persecutor
"need not necessarily conform to the claimant's true beliefs."51 In other words, the political opinion may not
be correctly attributed to the claimant.
The Supreme Court makes it clear that
it is the perception of the persecutor which is relevant. The question
to be answered is: does the agent of persecution consider the claimant's
conduct to be political or does it attribute political activities to him
or her?52
The claimant does not have to belong
to a political party53 nor does the claimant have to belong to a group
that has an official title, office or status54
in order for there to be a determination that the claimant's fear of persecution
is by reason of political opinion. The relevant issue is the persecutor's
perception of the group and its activities, or of the individual and his
or her activities.55
For a discussion of the ground of political
opinion as it relates to laws of general application and, in particular,
the dress code and military service (evasion/desertion) laws, see Chapter 9,
sections 9.3.6 and 9.3.8.1.
4.7. VICTIMS OF CRIMINALITY AND NEXUS TO GROUNDS
In Noori,56
the Court noted that whether the claimant's fear was one of revenge from
another family or a fear of persecution with political overtones is a
question of fact for the panel to determine.
In a number of cases, the Trial Division
has held that victims of crime, corruption57
or vendettas58 generally cannot establish a link between their
fear of persecution and one of the five grounds in the definition. However,
these cases must be read with caution in light of the Federal Court of
Appeal decision in Klinko,59 where the Court answered in the affirmative the
following certified question:
Does the making of a public complaint about widespread corrupt
conduct by customs and police officials to a regional governing authority,
and thereafter, the complainant suffering persecution on this account,
when the corrupt conduct is not officially sanctioned, condoned or supported
by the state, constitute an expression of political opinion as that term
is understood in the definition of Convention refugee in subsection 2(1)
of the Immigration Act?
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.60
Similarly, opposition to corruption or criminality is not a perceived
political opinion unless it can be seen to challenge the state apparatus.61
A claimant's exposure of corruption
or opposition to crime will not generally place him or her in a particular
social group.62
However, in some cases, the grounds of political opinion or particular
social group can provide a nexus where the claimant fears persecution
as a result of criminal activity.63
- Adewumi, Adegboyega Oluseyi v.
M.C.I.
(F.C.T.D.,
no. IMM-1276-01), Dawson,
March 7, 2002; 2002FCT 258
- Al-Busaidy, Talal Ali Said v.
M.E.I.
(F.C.A.,
no. A-46-91), Heald, Hugessen,
Stone, January 17, 1992. Reported: Al-Busaidy v.
Canada (Minister of Employment and Immigration) (1992), 16 Imm.
L.R. (2d) 119 (F.C.A.)
- Ali Shaysta-Ameer v. M.C.I.
(F.C.T.D.,
no. IMM-3404-95), McKeown,
October 30, 1996. Reported: Ali, v.
Canada (Minister of Citizenship and Immigration) (1996), 36
Imm.
L.R. (2d) 34 (F.C.T.D.)
- Annan v. Canada (Minister
of Citizenship and Immigration), [1995] 3 F.C.
25 (T.D.)
- Armson, Joseph Kaku v. M.E.I.
(F.C.A.,
no. A-313-88), Heald, Mahoney,
Desjardins, September 5, 1989. Reported: Armson v.
Canada (Minister of Employment and Immigration) (1989), 9 Imm.
L.R. (2d) 150 (F.C.A.)
- Badran, Housam v. M.C.I.
(F.C.T.D.,
no. IMM-2472-95), McKeown,
March 29, 1996
- Bediako, Isaac v. S.G.C.
(F.C.T.D.,
no. IMM-2701-94), Gibson,
February 22, 1995
- Berrueta, Jesus Alberto Arzola v.
M.C.I.
(F.C.T.D.,
no. IMM-2303-95), Wetston,
March 21, 1996
- Bhowmick, Sankar v. M.C.I.
(F.C.T.D.,
no. IMM-3889-94), Tremblay-Lamer,
May 1, 1995
- Bohorquez, Gabriel Enriquez v.
M.C.I.
(F.C.T.D.,
no. IMM-7078-93), McGillis,
October 6, 1994
- Calero, Fernando Alejandro (Alejandeo) v.
M.E.I.
(F.C.T.D.,
no. IMM-3396-93), Wetston,
August 8, 1994
- Casetellanos v. Canada (Solicitor
General), [1995] 2 F.C.
190 (T.D.)
- Cen v. Canada (Minister
of Citizenship and Immigration), [1996] 1 F.C.
310 (T.D.)
- Chabira, Brahim v. M.E.I.
(F.C.T.D.,
no. IMM-3165-93), Denault,
February 2, 1994. Reported: Chabira v.
Canada (Minister of Employment and Immigration) (1994), 27 Imm.
L.R. (2d) 75 (F.C.T.D.)
- Chan v. Canada (Minister
of Employment and Immigration), [1993] 3 F.C.
675; (1993), 20 Imm.
L.R. (2d) 181 (C.A.)
- Chan v. Canada (Minister
of Employment and Immigration), [1995] 3 S.C.R.
593
- Cheung v. Canada (Minister
of Employment and Immigration), [1993] 2 F.C.
314 (C.A.)
- Cutuli, Raul Horacio v.
M.E.I.
(F.C.T.D.,
no. IMM-36-93), Wetston,
May 25, 1994
- De Arce, Rita Gatica v.
M.C.I.
(F.C.T.D.,
no. IMM-5237-94), Jerome,
November 3, 1995. Reported: De Arce v.
Canada (Minister of Citizenship and Immigration) (1995), 32 Imm.
L.R. (2d) 74 (F.C.T.D.)
- Diamanama, Nsimba v. M.C.I.
(F.C.T.D.,
no. IMM-1808-95), Reed, January 30,
1996
- Diluna, Roselene Edyr Soares v.
M.E.I.
(F.C.T.D.,
no. IMM-3201-94), Gibson,
March 14, 1995. Reported: Diluna v.
Canada (Minister of Employment and Immigration) (1995), 29 Imm.
L.R. (2d) 156 (F.C.T.D.)
- Femenia, Guillermo v. M.C.I.
(F.C.T.D.,
no. IMM-3852-94), Simpson,
October 30, 1995
- Fernandez De La Torre, Mario Guillermo v.
M.C.I.
(F.C.T.D.,
no. IMM-3787-00), McKeown,
May 9, 2001
- Fosu, Monsieur Kwaku v.
M.E.I.
(F.C.T.D.,
no. A-35-93), Denault, November 16,
1994. Reported: Fosu v.
Canada (Minister of Employment and Immigration) (1994), 27 Imm.
L.R. (2d) 95 (F.C.T.D.)
- Fouchong, Donna Hazel v.
S.S.C.
(F.C.T.D.,
no. IMM-7603-93), MacKay,
November 18, 1994. Reported: Fouchong v.
Canada (Secretary of State) (1994), 26 Imm.
L.R. (2d) 200 (F.C.T.D.)
- Gomez, José Luis Torres v.
M.C.I.
(F.C.T.D.,
no. IMM-1826-98), Pinard,
April 29, 1999
- Gomez, Mario Alonso Martinez v.
M.C.I.
(F.C.T.D.,
no. IMM-3785-97), Richard,
June 23, 1998
- Gomez-Rejon, Bili v. M.E.I.
(F.C.T.D.,
no. IMM-470-93), Joyal, November 25,
1994
- Gonzalez, Brenda Yojuna v.
M.C.I.
(F.C.T.D.,
no. IMM-1092-01), Dawson,
March 27, 2002; 2002 FCT
345
- Hanukashvili, Valeri v.
M.C.I.
(F.C.T.D.,
no. IMM-1732-96), Pinard,
March 27, 1997
- Hazarat, Ghulam v. S.S.C.
(F.C.T.D.,
no. IMM-5496-93), MacKay,
November 25, 1994
- Hilo, Hamdi v. M.E.I.
(F.C.A.,
no. A-260-90), Heald, Stone,
Linden, March 15, 1991. Reported: Hilo v.
Canada (Minister of Employment and Immigration) (1991), 15 Imm.
L.R. (2d) 199 (F.C.A.)
- Inzunza Orellana, Ricardo Andres v.
M.E.I.
(F.C.A.,
no. A-9-79), Heald, Ryan,
Kelly, July 25, 1979. Reported: Inzunza v.
Canada (Minister of Employment and Immigration) (1979), 103 D.L.R. (3d) 105 (F.C.A.)
- Karpounin, Maxim Nikolajevitsh v.
M.E.I.
(F.C.T.D.,
no. IMM-7368-93), Jerome,
March 10, 1995
- Kassatkine, Serguei v. M.C.I.
(F.C.T.D.,
no. IMM-978-95), Muldoon,
August 20, 1996
- Klinko, Alexander v. M.C.I.
(F.C.A.,
A-321-98), Létourneau, Nöel, Malone, February 22, 2000
- Klinko, Alexander v. M.C.I.
(F.C.T.D.,
no. IMM-2511-97), Rothstein,
April 30, 1998
- Kwong, Kam Wang (Kwong, Kum Wun) v.
M.C.I.
(F.C.T.D.,
no. IMM-3464-94), Cullen,
May 1, 1995
- Lai, Kai Ming v. M.E.I.
(F.C.A.,
no. A-792-88), Marceau, Stone,
Desjardins, September 18, 1989. Reported: Lai v.
Canada (Minister of Employment and Immigration) (1989), 8 Imm.
L.R. (2d) 245 (F.C.A.)
- Lara, Benjamin Zuniga v.
M.C.I.
(F.C.T.D.,
no. IMM-438-98), Evans, February
26, 1999
- Leon, Johnny Edgar Orellana v.
M.C.I.
(F.C.T.D.,
no. IMM-3520-94), Jerome,
September 19, 1995
- Litvinov, Svetlana v. S.C.C.
(F.C.T.D.,
no. IMM-7488-93), Gibson,
June 30, 1994
- Liu, Ying Yang v. M.C.I.
(F.C.T.D.,
no. IMM-4316-94), Reed, May 16,
1995
- M.C.I.
v. Lin, Chen (F.C.A.,
no. A-3-01), Desjardins,
Décary, Sexton, October 18, 2001
- Manrique Galvan, Edgar Jacob v.
M.C.I.
(F.C.T.D.,
no. IMM-304-99), Lemieux,
April 7, 2000
- Marincas, Dan v. M.E.I.
(F.C.T.D.,
no. IMM-5737-93), Tremblay-Lamer,
August 23, 1994
- Marvin, Mejia Espinoza v.
M.C.I.
(F.C.T.D.,
no. IMM-5033-93), Joyal,
January 10, 1995
- Mason, Rawlson v. S.S.C.
(F.C.T.D.,
no. IMM-2503-94), Simpson,
May 25, 1995
- Matter of Acosta, Interim Decision 2986, 1985 WL 56042
- Mayers: Canada (Minister of Employment and Immigration) v.
Mayers, [1993] 1 F.C.
154 (C.A.)
- Mehrabani, Paryoosh Solhjou v.
M.C.I.
(F.C.T.D.,
no. IMM-1798-97), Rothstein,
April 3, 1998Montchak, Roman v.
M.C.I.
(F.C.T.D.,
no. IMM-3068-98), Evans,
July 7. 1999
- Mortera, Senando Layson v.
M.E.I.
(F.C.T.D.,
no. A-1084-92), McKeown,
December 8, 1993
- Mousavi-Samani, Nasrin v.
M.C.I.
(F.C.T.D.,
IMM-4674-96), Heald, September 30, 1997
- Munoz, Tarquino Oswaldo Padron v.
M.C.I.
(F.C.T.D.,
no. IMM-1884-95), McKeown,
February 22, 1996
- Murillo Garcia, Orlando Danilo v.
M.C.I.
(F.C.T.D.,
no. IMM-1792-98), Tremblay-Lamer,
March 4, 1999
- Narvaez v. Canada (Minister
of Citizenship and Immigration), [1995] 2 F.C.
55 (T.D.)
- Noori, Ramin v. M.C.I.
(F.C.T.D.,
IMM-3581-96), Rothstein, July 3, 1997
- Nosakhare, Brown v. M.C.I.
(F.C.T.D.,
no. IMM-5023-00), Tremblay-Lamer,
July 6, 2001
- Oloyede, Bolaji v. M.C.I.
(F.C.T.D.,
no. IMM-2201-00), McKeown,
March 28, 2001
- Pena, Jose Ramon Alvarado v.
M.C.I.
(F.C.T.D.,
no. IMM-5806-99), Evans,
August 25, 2000
- Pizarro, Claudio Juan Diaz v.
M.E.I.
(F.C.T.D.,
no. IMM-2051-93), Gibson,
March 11, 1994
- Pour, Malek Mohammad Nagmeh Abbas v.
M.C.I.
(F.C.T.D.,
no. IMM-3650-95), Gibson,
June 6, 1996Pour-Shariati v.
Canada (Minister of Employment and Immigration), [1995] 1 F.C.
767 (T.D.)
- Randhawa, Sarbjit v. M.C.I.
(F.C.T.D.,
no. IMM-2474-97), Campbell,
February 2, 1998
- Rangel Becerra, Yanira Esthel v.
M.C.I.
(F.C.T.D.,
no. IMM-3550-97), Pinard,
August 24, 1998
- Reul, Jose Alonso Najera v.
M.C.I.
(F.C.T.D.,
no. IMM-326-00), Gibson,
October 2, 2000
- Reynoso, Edith Isabel Guardian v.
M.C.I.
(F.C.T.D.,
no. IMM-2110-94), Muldoon,
January 29, 1996
- Rivero, Omar Ramon v. M.C.I.
(F.C.T.D.,
no. IMM-511-96), Pinard,
November 22, 1996
- Rodriguez, Ana Maria v.
M.C.I.
(F.C.T.D.,
IMM-4573-96), Heald, September 26, 1997
- Rodriguez, Juan Carlos Rodriguez v.
M.E.I.
(F.C.T.D.,
no. IMM-4109-93), Dubé,
October 25, 1994
- Salvador (Bucheli), Sandra Elizabeth v.
M.C.I.
(F.C.T.D.,
no. IMM-6560-93), Noël,
October 27, 1994
- Serrano, Roberto Flores v.
M.C.I.
(F.C.T.D.,
no. IMM-2787-98), Sharlow,
April 27, 1999
- Shahiraj, Narender Singh v.
M.C.I.
(F.C.T.D.,
no. IMM-3427-00), McKeown,
May 9, 2001
- Sinora, Frensel v. M.E.I.
(F.C.T.D.,
no. 93-A-334), Noël,
July 3, 1993
- Soberanis, Enrique Samayoa v.
M.C.I.
(F.C.T.D.,
no. IMM-401-96), Tremblay-Lamer,
October 8, 1996
- Suarez, Jairo Arango v.
M.C.I.
(F.C.T.D.,
no. IMM-3246-95), Reed, July 29,
1996
- Tchernilevski, Taras v.
M.C.I.
(F.C.T.D.,
no. IMM-5088-94), Noël,
June 8, 1995. Reported: Tchernilevski v.
Canada (Minister of Citizenship and Immigration) (1995), 30 Imm.
L.R. (2d) 67 (F.C.T.D.)
- Valderrama, Liz Garcia v.
M.C.I.
(F.C.T.D.,
no. IMM-444-98), Reed, August 5,
1998
- Vargas, Maria Cecilia Giraldo v.
M.E.I.
(F.C.T.D.,
no. T-1301-92), Wetston,
May 25, 1994
- Vassiliev, Anatoli Fedorov v.
M.C.I.
(F.C.T.D.
IMM-3443-96), Muldoon, July 4, 1997
- Veeravagu, Uthaya Kumar v.
M.E.I.
(F.C.A.,
no. A-630-89), Hugessen,
Desjardins, Henry, May 27, 1992
- Velasquez, Liliana Erika Jaramillo v.
M.C.I.
(F.C.T.D.,
no. IMM-4378-93), Noël,
December 21, 1994
- Vetoshkin, Nikolay v. M.C.I.
(F.C.T.D.,
no. IMM-4902-94), Rothstein,
June 9, 1995
- Vidhani v. Canada (Minister
of Citizenship and Immigration), [1995] 3 F.C.
60 (T.D.)
- Ward: Canada (Attorney General) v.
Ward, [1993] 2 S.C.R.
689, 103 D.L.R. (4th) 1, 20 Imm.
L.R. (2d) 85
- Wilcox, Manuel Jorge Enrique Tataje v.
M.E.I.
(F.C.T.D.,
no. A-1282-92), Reed, November 2,
1993
- Xheko, Aida Siri v. M.C.I.
(F.C.T.D.,
no. IMM-4281-97), Gibson,
August 28, 1998
- Xiao, Mei Feng v. M.C.I.
(F.C.T.D.,
no. IMM-953-00), Muldoon,
March 16, 2001
- Yang, Hui Qing v. M.C.I.
(F.C.T.D.,
no. IMM-6057-00), Dubé,
September 26, 2001
- Yoli, Hernan Dario v. M.C.I.
(F.C.T.D.,
no. IMM-399-02), Rouleau,
December 30, 2002; 2002 FCT
1329
- Zhu, Yong Liang v. M.E.I.
(F.C.A.,
no. A-1017-91), MacGuigan,
Linden, Robertson, January 28, 1994
- Zhu, Yong Qin v. M.C.I.
(F.C.T.D.,
no. IMM-5678-00), Dawson,
September 18, 2001
- Canada (Attorney General) v.
Ward, [1993] 2 S.C.R.
689, 103 D.L.R. (4th) 1, 20 Imm.
L.R. (2d) 85 at 732; and Chan v.
Canada (Minister of Employment and Immigration), [1993] 3 F.C.
675; (1993), 20 Imm.
L.R. (2d) 181 (C.A.),
at 689-690 and 692-693. In Gomez, Mario Alonso Martinez v.
M.C.I.
(F.C.T.D.,
no. IMM-3785-97), Richard,
June 23, 1998, the Court found that the CRDD
failed to assess the evidence of police mistreatment of the claimant,
a homosexual, in relation to a Convention ground. A determination of
the nexus is relevant to the assessment of whether an IFA
exists.
- Ward, ibid., at 745.
- Ward, supra, footnote 1, at
747.
- In Narvaez v.
Canada (Minister of Citizenship and Immigration), [1995] 2 F.C.
55 (T.D.), at 62,
the Court stated: "While the guidelines are not law, they are authorized
by subsection 65(3) of the Act, and intended to be followed
unless circumstances are such that a different analysis is appropriate."
See also Fouchong, Donna Hazel v.
S.S.C.
(F.C.T.D.,
no. IMM-7603-93), MacKay,
November 18, 1994. Reported: Fouchong v.
Canada (Secretary of State) (1994), 26 Imm.
L.R. (2d) 200 (F.C.T.D.);
Hazarat, Ghulam v. S.S.C.
(F.C.T.D.,
no. IMM-5496-93), MacKay,
November 25, 1994; and Pour, Malek Mohammad Nagmeh Abbas v.
M.C.I.
(F.C.T.D.,
no. IMM-3650-95), Gibson,
June 6, 1996.
- See for example, Zhu, Yong Liang v.
M.E.I.
(F.C.A.,
no. A-1017-91), MacGuigan,
Linden, Robertson, January 28, 1994, where the Court of Appeal concluded
that the CRDD
erred in setting up an opposition between friendship and political motivation
as the motives of the claimant, who assisted in smuggling two students
involved in the Chinese pro-democracy movement to Hong Kong primarily
because of friendship. The motives were "mixed" rather than "conflicting".
It is sufficient if one of the motives is political. See also Shahiraj,
Narender Singh v. M.C.I.
(F.C.T.D.,
no. IMM-3427-00), McKeown,
May 9, 2001.
- Veeravagu, Uthaya Kumar v.
M.E.I.
(F.C.A.,
no. A-630-89), Hugessen,
Desjardins, Henry, May 27, 1992, at 2.
- Hanukashvili, Valeriv.
M.C.I.
(F.C.T.D.,
no. IMM-1732-96), Pinard,
March 27, 1997. Although Israel did not recognize the claimants
as having Jewish nationality, they were citizens of Israel and as such
the CRDD
had properly considered the claims as being against Israel, the country
of nationality pursuant to section 2(1)(a)(i) of the Act.
- In Reul, Jose Alonso Najera v.
M.C.I.
(F.C.T.D.,
no. IMM-326-00), Gibson,
October 2, 2000, the applicants were a husband and wife and their three
children. They feared persecution by siblings of the husband, the principal
applicant. When the principal applicant's mother refused a blood transfusion
and died, the siblings accused the principal applicant of causing her
death and threatened him and his family. The principal applicant and
his mother were Jehovah's Witnesses. The CRDD
found that the fear was based on a family dispute, not on a Convention
ground. The Court was satisfied that the applicants had established
a subjectively and objectively well-founded fear of persecution in Mexico
on the ground of religious belief.
- Fosu, Monsieur Kwaku v.
M.E.I.
(F.C.T.D.,
no. A-35-93), Denault, November 16,
1994. Reported: Fosu v.
Canada (Minister of Employment and Immigration) (1994), 27 Imm.
L.R. (2d) 95 (F.C.T.D.),
at 97, where the Court adopted the Handbook's interpretation
of freedom of religion. See also Chabira, Brahim v.
M.E.I.
(F.C.T.D.,
no. IMM-3165-93), Denault,
February 2, 1994. Reported: Chabira v.
Canada (Minister of Employment and Immigration) (1994), 27 Imm.
L.R. (2d) 75 (F.C.T.D.),
where the claimant was persecuted for offending against his girlfriend's
Islamic mores; and Bediako, Isaac v.
S.G.C. (F.C.T.D.,
no. IMM-2701-94), Gibson,
February 22, 1995, where the Court deals briefly with the issue
of justified restrictions on religious practices.
- For example, in Nosakhare, Brown v.
M.C.I.
(F.C.T.D.,
no. IMM-5023-00), Tremblay-Lamer,
July 6, 2001, the claimant, who converted to Christianity in 1997, fled
Nigeria because he did not want to belong to the Ogboni cult, as his
father did. According to the claimant, the cult engages in human sacrifice
and cannibalism. The Court concluded that the Board erred in finding
there was no nexus. The kidnapping and beating endured by the claimant
were acts carried out by a religious group as a result of the religious
beliefs of the claimant. However, in Oloyede, Bolaji v.
M.C.I.
(F.C.T.D.,
no. IMM-2201-00), McKeown,
March 28, 2001, the Court concluded that it was open on the evidence
for the Board to determine that the claimant had been subjected to cult
criminal activity rather than religious persecution. In this case, the
claim was on grounds of membership in a particular social group, namely,
children of cult groups who refuse to follow in their fathers' footsteps.
The claimant claimed that his life was at risk if he did not join the
Vampire cult. The claimant also argued, without success, that he was
a Christian and that if he returned to Nigeria he would be forced to
engage in cult practices because he would not receive any state protection.
- Yang, Hui Qing v.
M.C.I.
(F.C.T.D.,
no. IMM-6057-00), Dubé,
September 26, 2001. In this case, the claimant feared persecution by
the authorities in China due to her adherence to Falun Gong beliefs
and practices. The Court held that the CRDD
should have found Falun Gong to be partly a religion and partly a particular
social group. Applying the reasoning in Ward regarding political
opinion, the Court held that if Falun Gong is considered by the government
of China to be a religion, then it must be so for the purposes of this
claim. A question was certified regarding the scope of the term "religion"
used in the Convention refugee definition.
- Kassatkine, Serguei v.
M.C.I.
(F.C.T.D.,
no. IMM-978-95), Muldoon,
August 20, 1996, at 4.
- Ward, supra, footnote 1, at
739.
- Canada (Minister of Employment and Immigration)
v. Mayers, [1993] 1 F.C.
154 (C.A.).
- Cheung v.
Canada (Minister of Employment and Immigration), [1993] 2 F.C.
314 (C.A.).
- Matter of Acosta, Interim Decision 2986,
1985 WL 56042 (BIA-United States).
- In Yang, the claimant feared persecution
by the authorities in China due to her adherence to Falun Gong beliefs
and practices. The Court was of the view that Falun Gong would fall
under the second category of "social group" in Ward, as members
voluntarily associate themselves for reasons so fundamental to their
human dignity that they should not be forced to forsake the association.
On the other hand, in Manrique Galvan, Edgar Jacob v.
M.C.I.
(F.C.T.D.,
no. IMM-304-99), Lemieux,
April 7, 2000, the claimant alleged to belong to a particular social
group, namely the Emiliano Zapata group, an organization of taxi drivers,
which the Refugee Division refused to recognize. After conducting an
exhaustive review of the case law on the subject [including Matter
of Acosta (Board of Immigration Appeals - United States) and Islam
(House of Lords - England)], the Court concluded that the Refugee Division
had properly assessed the case law in finding that the social group
to which the principal applicant belonged did not correspond to any
of the categories established in Ward, in particular the second
category, on the ground that the right to work is fundamental but not
necessarily the right to be a taxi driver in Mexico City.
- Ward, supra, footnote 1, at
739.
- Ward, supra, footnote 1, at 739.
- Ward, supra, footnote 1, at
738. Thus the Court held, at 745, that an association, such as the Irish
National Liberation Army (INLA), that is committed to attaining political
goals by any means, including violence, does not constitute a particular
social group, as requiring its members to abandon this objective "does
not amount to an abdication of their human dignity."
- Ward, supra, footnote 1, at
738-739. Thus the Court held, at 745, that although the claimant's membership
in INLA placed him in the circumstances that led to his fear, the fear
itself was based on his action, not on his affiliation.
- Ward, supra, footnote 1, at
729-733. In Mason, Rawlson v.
S.S.C.
(F.C.T.D.,
no. IMM-2503-94), Simpson,
May 25, 1995, the claimant feared being killed by drug "thugs"
because he opposed the drug trade, and informed and testified against
his brother in criminal proceedings; the Court held that "persons of
high moral fibre who opposed the drug trade" were not a particular social
group as this was not a pre-existing group whose members were subsequently
persecuted. See also footnotes 47 and 62; and Marvin, Mejia Espinoza
v. M.C.I.
(F.C.T.D.,
no. IMM-5033-93), Joyal,
January 10, 1995, where the Court found, in the circumstances of
that case, that reporting drug traffickers to the Costa Rican authorities
was not an expression of political opinion. For further discussion of
victims of criminality and nexus to the grounds, see Chapter 4, section
4.7. See also Manrique Galvan, Edgar Jacob v.
M.C.I.
supra, footnote 17, where the Court noted that the concept of particular
social group requires more than a mere association of individuals who
have come together because of their victimization.
- In M.C.I.
v. Lin, Chen (F.C.A.,
no. A-3-01), Desjardins,
Décary, Sexton, October 18, 2001, the Court, in answer to a certified
question, held that the CRDD
erred in law when it found that the minor claimant had a well-founded
fear of persecution on the grounds that he was a member of a particular
social group, "minor child of Chinese family who is expected to provide
support for other family members". There was no evidence to support
the CRDD's
finding that the named group was targeted for persecution by parents
or other agents of persecution. The claimant's fear of persecution was
not because he was under 18 and expected to provide support for his
family. His fear was directed at the Chinese authorities and stemmed
from the method chosen to leave China. See also Xiao, Mei Feng v.
M.C.I.
(F.C.T.D.,
no. IMM-953-00), Muldoon,
March 16, 2001.
- Chan (C.A.),
supra, footnote 1.
- Chan v.
Canada (Minister of Employment and Immigration), [1995] 3 S.C.R.
593.
- Chan (S.C.C.),
ibid., at 672.
- Chan (S.C.C.),
supra, footnote 25, at 658 and 672.
- Chan (S.C.C.),
supra, footnote 25, at 642.
- Chan (S.C.C.),
supra, footnote 25, at 642.
- In Chan (S.C.C.),
supra, footnote 25, at 643-644, Mr. Justisce
LaForest commented that having children can be classified as what one
does rather than who one is. In context, however, having children makes
a person a parent which is what one is.
- Chan (S.C.C.),
supra, footnote 25, at 644-645.
- Al-Busaidy, Talal Ali Said v.
M.E.I.
(F.C.A.,
no. A-46-91), Heald, Hugessen,
Stone, January 17, 1992. Reported: Al-Busaidy v.
Canada (Minister of Employment and Immigration) (1992), 16 Imm.
L.R. (2d) 119 (F.C.A.);
Pour-Shariati v. Canada (Minister
of Employment and Immigration), [1995] 1 F.C.
767 (T.D.), at 774-775;
Casetellanos v. Canada (Solicitor
General), [1995] 2 F.C.
190 (T.D.). In Calero,
Fernando Alejandro (Alejandeo) v.
M.E.I.
(F.C.T.D.,
no. IMM-3396-93), Wetston,
August 8, 1994, the Court found no nexus for two families fleeing
death threats from drug traffickers; but see Velasquez, Liliana
Erika Jaramillo v. M.C.I.
(F.C.T.D.,
no. IMM-4378-93), Noël,
December 21, 1994, which suggests, possibly, a different conclusion
may be warranted.
In Rodriguez, Ana Maria v.
M.C.I.
(F.C.T.D.,
IMM-4573-96), Heald, September 26, 1997, the claimant was threatened
with harm because her husband was involved in the mafia's drug related
business. The Court held that the CRDD
did not err in holding that the difficulties experienced by family
members of those persecuted for non-Convention reasons if those
difficulties are solely by reason of their connection with the principal
target are not covered by the Convention.
This rationale was followed in Klinko, Alexander v.
M.C.I.
(F.C.T.D.,
no. IMM-2511-97), Rothstein,
April 30, 1998, where the Court held that when the primary victim
of persecution does not come within the Convention refugee definition,
any derivative Convention refugee claim based on family group cannot
be sustained (Klinko was overturend by the Federal Court
of Appeal on other grounds: Klinko, Alexander v.
M.C.I.
(F.C.A.,
A-321-98), Létourneau, Nöel, Malone, February 22, 2000
). See also Serrano, Roberto Flores v.
M.C.I.
(F.C.T.D.,
no. IMM-2787-98), Sharlow,
April 27, 1999, where the Court agreed to certify a question on the
topic and Gonzalez, Brenda Yojuna v.
M.C.I.
(F.C.T.D.,
no. IMM-1092-01), Dawson,
March 27, 2002: 2002 FCT
345, where the Court certified the same question as no appeal was
filed in Serrano. The question reads: "Can a refugee claim
succeed on the basis of a well-founded fear of persecution for reason
of membership in a particular social group that is family, if the
family member who is the principal target of the persecution is not
subject to persecution for a Convention reason?". See also Chapter
9, section 9.4.
- Pizarro, Claudio Juan Diaz v.
M.E.I.
(F.C.T.D.,
no. IMM-2051-93), Gibson,
March 11, 1994, at 3-4; this case applied Ward, supra,
footnote 1. See also Gomez-Rejon, Bili v.
M.E.I.
(F.C.T.D.,
no. IMM-470-93), Joyal, November 25,
1994; and Tchernilevski, Taras v.
M.C.I.
(F.C.T.D.,
no. IMM-5088-94), Noël,
June 8, 1995. Reported: Tchernilevski v.
Canada (Minister of Citizenship and Immigration) (1995), 30 Imm.
L.R. (2d) 67 (F.C.T.D.).
- Rodriguez, Juan Carlos Rodriguez v.
M.E.I.
(F.C.T.D.,
no. IMM-4109-93), Dubé,
October 25, 1994, at 2 (in obiter).
- Sinora, Frensel v.
M.E.I.
(F.C.T.D.,
no. 93-A-334), Noël,
July 3, 1993.
- Mortera, Senando Layson v.
M.E.I.
(F.C.T.D.,
no. A-1084-92), McKeown,
December 8, 1993, at 2. See also Wilcox, Manuel Jorge Enrique
Tataje v. M.E.I.
(F.C.T.D.,
no. A-1282-92), Reed, November 2,
1993; Karpounin, Maxim Nikolajevitsh v.
M.E.I.
(F.C.T.D.,
no. IMM-7368-93), Jerome,
March 10, 1995; Bhowmick, Sankar v.
M.C.I.
(F.C.T.D.,
no. IMM-3889-94), Tremblay-Lamer,
May 1, 1995; Vetoshkin, Nikolay v.
M.C.I.
(F.C.T.D.,
no. IMM-4902-94), Rothstein,
June 9, 1995; and Montchak, Roman v.
M.C.I.
(F.C.T.D.,
no. IMM-3068-98), Evans,
July 7. 1999.
However, in Randhawa, Sarbjit v.
M.C.I.
(F.C.T.D.,
no. IMM-2474-97), Campbell,
February 2, 1998, it was held that "considering the extensive
evidence of persecution of Sikhs in India the CRDD
made an erroneous finding of fact in compartmentalizing the [claimant]
as a Sikh from the fact that he is a prominent wealthy person", and
directed the Board to consider the claim on the basis of membership
in the social group of 'prominent wealthy Sikhs".
- In Ward, supra, footnote 1,
at 731, the Court said: "The persecution in the 'Cold War cases' was
imposed upon the capitalists not because of their contemporaneous activities
but because of their past status as ascribed to them by the Communist
leaders."Thus, in Lai, Kai Ming v.
M.E.I.
(F.C.A.,
no. A-792-88), Marceau, Stone,
Desjardins, September 18, 1989. Reported: Lai v.
Canada (Minister of Employment and Immigration) (1989), 8 Imm.
L.R. (2d) 245 (F.C.A.),
at 245-246, the Court implicitly accepted that "persons with capitalist
backgrounds" constitute a particular social group in the context of
China. In Karpounin, supra, footnote, 36, however,
the Court stated at 4: "
it does not necessarily follow that,
merely because the historical underpinning of including the use of the
term 'particular social group' as found in the Convention, was based
on the desire to protect capitalists and independent businessmen fleeing
Eastern Bloc persecution during the cold war, should it lead to the
conclusion that the [claimant] in this case was persecuted for that
very reason." The CRDD
had found that the claimant, an independent businessman, was targeted
because of the size of his bank account and not because of his choice
of occupation or the state of his conscience. See also Soberanis,
Enrique Samayoa v. M.C.I.
(F.C.T.D.,
no. IMM-401-96), Tremblay-Lamer,
October 8, 1996, where "small business proprietors victimized by
extortionists acting in concert with police authorities" was found not
to be a particular social group.
- In Narvaez, supra, footnote
4, Mr. Justisce McKeown referred
extensively to Ward, supra, footnote 1 and to the IRB
Chairperson's Gender Guidelines in finding "women subject to domestic
abuse in Ecuador" to constitute a particular social group; the judgment
did not address the issue of whether the group can be defined by the
persecution feared. (In Ward, supra, footnote 1, at
729-733, the Court rejected the notion that "particular social group"
could be defined solely by the persecution feared, i.e.,
the common victimization.) The reasoning in Narvaez, supra,
footnote 4, was explicitly adopted in the decision of Diluna, Roselene
Edyr Soares v. M.E.I.
(F.C.T.D.,
no. IMM-3201-94), Gibson,
March 14, 1995. Reported: Diluna v.
Canada (Minister of Employment and Immigration) (1995), 29 Imm.
L.R. (2d) 156 (F.C.T.D.),
where the Court held that the CRDD
erred in not finding that 'women subject to domestic violence in Brazil"
constitute a particular social group.
- Vidhani v.
Canada (Minister of Citizenship and Immigration), [1995] 3 F.C.
60 (T.D.), where
the Court held that such women have suffered a violation of a basic
human right (the right to enter freely into marriage) and would appear
to fall within the first category identified in Ward, supra,
footnote 1.
- Cen v.
Canada (Minister of Citizenship and Immigration), [1996] 1 F.C.
310 (T.D.), at 319,
where the Court stated the group "might be" so defined.
- Litvinov, Svetlana v.
S.C.C.
(F.C.T.D.,
no. IMM-7488-93), Gibson,
June 30, 1994, at 4. Note that Justice Gibson indicated that the
"group might be defined" in this way.
- Annan v.
Canada (Minister of Citizenship and Immigration), [1995] 3 F.C.
25 (T.D.), where
the Court implicitly seemed to accept that the claim was grounded.
- Cheung, supra, footnote 15,
at 322, ("women in China who have one child and are faced with forced
sterilization"). But note Liu, Ying Yang v.
M.C.I.
(F.C.T.D.,
no. IMM-4316-94), Reed, May 16,
1995, where the Court found that the claimant had shown no subjective
fear of persecution as a result of the threat of sterilization and there
was no evidence she objected to the government policy. See also Chan
(S.C.C.),
supra, footnote 25, at 644-646, where La Forest J. (dissenting)
formulates the group under Ward 's second category (see section
4.5. of this Chapter), as an association or group resulting from a "common
attempt by its members to exercise a fundamental human right" (at 646),
namely, "the basic right of all couples and individuals to decide freely
and responsibly the number, spacing and timing of their children." (at
646). For further discussion of China's one child policy, see Chapter
9, section 9.3.7.
- Badran, Housam v.
M.C.I.
(F.C.T.D.,
no. IMM-2472-95), McKeown,
March 29, 1996.
- Reynoso, Edith Isabel Guardian v.
M.C.I.
(F.C.T.D.,
no. IMM-2110-94), Muldoon,
January 29, 1996. Mr. Justisce
Muldoon stated that the claimant's group was defined by an innate or
unchangeable characteristic; the Court acknowledged that this characteristic
was one acquired later in life.
- Ali, Shaysta-Ameer v.
M.C.I.
(F.C.T.D.,
no. IMM-3404-95), McKeown,
October 30, 1996. Reported: Ali v.
Canada (Minister of Citizenship and Immigration) (1996), 36
Imm.
L.R. (2d) 34 (F.C.T.D.)
(the country of origin was Afghanistan).
- Serrano, supra, footnote 32.
The Court certified a question on this issue but no appeal was filed.
- Ward, supra, footnote 1, at
746. The word "engaged" was interpreted in Femenia, Guillermo
v. M.C.I.
(F.C.T.D.,
no. IMM-3852-94), Simpson,
October 30, 1995. The claimants asserted that their political opinion
was that they opposed the existence of corrupt police and advocated
their removal and prosecution. They argued that this was an opinion
on a matter "in which the machinery of state, government and policy
may be engaged." Madam Justice Simpson concluded, that the state is
"engaged" in the provision of police services, but not in the criminal
conduct of corrupt officers. In her view, that was not conduct officially
sanctioned, condoned or supported by the state and therefore, the claimants'
asserted political opinion did not come within the Ward, supra,
footnote 1, characterization of political opinion. The Court of Appeal
in Klinko, supra, footnote 32, rejected the approach
followed by the Trial Division in Femenia as being too narrow
an interpretation of Ward. The Court answered in the affirmative
the following certified question:
Does the making of a public complaint about widespread corrupt
conduct by customs and police officials to a regional governing authority,
and thereafter, the complainant suffering persecution on this account,
when the corrupt conduct is not officially sanctioned, condoned or
supported by the state, constitute an expression of political opinion
as that term is understood in the definition of Convention refugee
in subsection 2(1) of the Immigration Act?
See also Berrueta, Jesus Alberto Arzola v.
M.C.I.
(F.C.T.D.,
no. IMM-2303-95), Wetston,
March 21, 1996, where the Court overturned the CRDD
decision on the basis that the CRDD
did not suitably analyze the facts to determine the issue of political
opinion. With respect to corruption, the Court stated, at 2, that
'[c]orruption is prevalent in some countries. To decry corruption,
in some cases, is to strike at the core of such governments' authority."
See also Zhu, Yong Qin v.
M.C.I.
(F.C.T.D.,
no. IMM-5678-00), Dawson,
September 18, 2001.
- Ward, supra, footnote 1, at
746.
- Ward, supra, footnote 1, at
746.
- Ward, supra, footnote 1, at
747.
- Inzunza Orellana, Ricardo Andres v.
M.E.I.
(F.C.A.,
no. A-9-79), Heald, Ryan,
Kelly, July 25, 1979. Reported: Inzunza v.
Canada (Minister of Employment and Immigration) (1979), 103 D.L.R. (3d) 105 (F.C.A.),
at 109.
- Armson, Joseph Kaku v.
M.E.I.
(F.C.A.,
no. A-313-88), Heald, Mahoney,
Desjardins, September 5, 1989. Reported: Armson v.
Canada (Minister of Employment and Immigration). (1989), 9 Imm.
L.R. (2d) 150 (F.C.A.),
at 153.
- Hilo, Hamdi v.
M.E.I.
(F.C.A.,
no. A-260-90), Heald, Stone,
Linden, March 15, 1991. Reported: Hilo v.
Canada (Minister of Employment and Immigration) (1991), 15 Imm.
L.R. (2d) 199 (F.C.A.),
at 203.
- Hilo, ibid., at 202-203 (re
charitable group). See also Bohorquez, Gabriel Enriquez v.
M.C.I.
(F.C.T.D.,
no. IMM-7078-93), McGillis,
October 6, 1994 (re lottery ticket cooperative); Salvador (Bucheli),
Sandra Elizabeth v. M.C.I.
(F.C.T.D.,
no. IMM-6560-93), Noël,
October 27, 1994 (re witness to crime committed by paramilitary
group); Marvin, supra, footnote 22, (re reporting
of drug traffickers to authorities); Kwong, Kam Wang (Kwong, Kum
Wun) v. M.C.I.
(F.C.T.D.,
no. IMM-3464-94), Cullen,
May 1, 1995 (re defiance of one-child policy) - but compare Chan
(C.A.), supra,
footnote 1, at 693-696, per Heald J.A., and at 721-723, per Desjardins
J.A.
- Noori, Ramin v.
M.C.I.
(F.C.T.D.,
IMM-3581-96), Rothstein, July 3, 1997.
- Leon, Johnny Edgar Orellana v.
M.C.I.
(F.C.T.D.,
no. IMM-3520-94), Jerome,
September 19, 1995; Calero, supra, footnote 32,
where the Court held that victims of organized crime do not constitute
a social group; Cutuli, Raul Horacio v.
M.E.I.
(F.C.T.D.,
no. IMM-36-93), Wetston,
May 25, 1994; Vargas, Maria Cecilia Giraldo v.
M.E.I.
(F.C.T.D.,
no. T-1301-92), Wetston,
May 25, 1994; Gomez, José Luis Torres v.
M.C.I.
(F.C.T.D.,
no. IMM-1826-98), Pinard,
April 29, 1999; and Serrano, supra, footnote 32.
- Rivero, Omar Ramon v.
M.C.I.
(F.C.T.D.,
no. IMM-511-96), Pinard,
November 22, 1996, where the CRDD
was upheld in its finding of no nexus where the claimant was the target
of a personal vendetta by a government official. See also Marincas,
Dan v. M.E.I.
(F.C.T.D.,
no. IMM-5737-93), Tremblay-Lamer,
August 23, 1994; De Arce, Rita Gatica v.
M.C.I.
(F.C.T.D.,
no. IMM-5237-94), Jerome,
November 3, 1995. Reported: De Arce v.
Canada (Minister of Citizenship and Immigration) (1995), 32 Imm.
L.R. (2d) 74 (F.C.T.D.);
Xheko, Aida Siri v. M.C.I.
(F.C.T.D.,
no. IMM-4281-97), Gibson,
August 28, 1998; and Lara, Benjamin Zuniga v.
M.C.I.
(F.C.T.D.,
no. IMM-438-98), Evans, February
26, 1999. In Pena, Jose Ramon Alvarado v.
M.C.I.
(F.C.T.D.,
no. IMM-5806-99), Evans,
August 25, 2000, the claimant's girlfriend (now wife) Ms. Ordonez,
was granted refugee status in 1998 on the basis of the domestic abuse
she suffered at the hands of Mr. Arnulfo.
The claimant alleged that Mr. Arnulfo,
a member of a notorious criminal gang, had perpetrated acts of violence
against him because of his relationship with Ms. Ordonez.
The CRDD
concluded that there was no nexus and that the claim was based on a
personal vendetta. The Court found that it was reasonably open to the
Board to conclude that the cause of the violence against the claimant
was the jealousy of a rival for the affections ofMs. Ordonez,
not the fact that the claimant was a family member whom Mr. Arnulfo
had subjected to gender-based violence.
- Klinko (F.C.A.),
supra, footnote 32 In Fernandez De La Torre, Mario Guillermo
v. M.C.I.
(F.C.T.D.,
no. IMM-3787-00), McKeown,
May 9, 2001, the male claimant claimed a fear of persecution from Mexican
criminal elements whose fraudulent activities he witnessed while working
as a chauffeur for prominent anti-corruption figures. The Court found
that the CRDD
had reasonably distinguished Klinko (F.C.A.)
on the issue of nexus, in that the male claimant had not himself actually
denounced corruption. His verbal reports to his boss were therefore
redundant since it was reasonable to expect that his boss, the head
of the department, would have had a copy of these reports. The Board's
finding of "no nexus" was a reasonable one.
In Zhu, Yong Qin v. M.C.I.,
supra, footnote 48, the claimant claimed to be a refugee
sur place, because he gave information to the RCMP
about Korean and Chinese individuals charged with human smuggling
and feared repercussions by the snakeheads in China, notwithstanding
the crackdown by the Chinese government against smugglers. The Court
held that persons informing on criminal activity do not form a particular
social group. However, "political opinion" should be given a broad
interpretation and need not be expressed vis-à-vis the state.
By asking only whether the claimant's actions would be perceived by
Chinese authorities as contrary to the authorities' opinion and by
limiting the perceived opinion to one which challenges the state apparatus,
the CRDD
construed "political opinion" too narrowly. The CRDD
erred in its attempt to distinguish Klinko (F.C.A.).
The CRDD
must consider whether the government of China or its machinery "may
be engaged" in human trafficking so as to provide the required nexus
to a Convention ground.
In Adewumi, Adegboyega Oluseyi v.
M.C.I.
(F.C.T.D.,
no. IMM-1276-01), Dawson,
March 7, 2002; 2002 FCT
258, the claimant was targeted by cult members after he delivered
an anti-cult lecture at the University of Benin where he condemned
cult activities and criticized the police force and government for
non-prosecution of serious crimes. The CRDD
concluded that what the claimant feared was criminal activity. In
the Court's view, since the claimant's criticism extended to the police
and the government, the CRDD
erred in its conclusion that there was no nexus.
In Yoli, Hernan Dario v.
M.C.I.
(F.C.T.D.,
no. IMM-399-02), Rouleau,
December 30, 2002; 2002 FCT
1329, the Court agreed with the CRDD
that the claimant was threatened by "Bocca" ( a soccer fan club involved
in criminal activities) not because of his political opinion but because
he could reveal evidence of criminal activity to the authorities.
- In Ward, supra, footnote 1,
at 750, the Court stated that not just any dissent to any organization
will unlock the gates of asylum; the disagreement has to be rooted in
political conviction. In Suarez, Jairo Arango v.
M.C.I.
(F.C.T.D.,
no. IMM-3246-95), Reed, July 29,
1996, the Court found there was no political content or motivation when
the claimant informed on drug lords. A similar conclusion was reached
in Munoz, Tarquino Oswaldo Padron v.
M.C.I.
(F.C.T.D.,
no. IMM-1884-95), McKeown,
February 22, 1996. See also discussion of Marvin, supra,
footnote 22, and Femenia, supra, footnote 48.
- See Klinko (F.C.A.),
supra, footnote 32 and note that earlier cases need to be read
with caution in light of this judgment. In Berrueta, supra,
footnote 48, the claimant had denounced kingpins of a drug cartel and
the CRDD
had found this not to be an expression of political opinion. However,
the Court found that, in some cases, to denounce corruption is to undermine
a government's authority where the corruption is pervasive throughout
the state. Also in Diamanama, Nsimba v.
M.C.I.
(F.C.T.D.,
no. IMM-1808-95), Reed, January 30,
1996, the claimant's refusal to produce dresses for a corrupt government
official was viewed as a challenge to the government's authority; and
in Bohorquez, supra, footnote 55, the claimant opposed
the state lottery and faced threats by corrupt officials. The Court
found that the claimant's opposition to the lottery challenged vested
political interests. See also Vassiliev, Anatoli Fedorov v.
M.C.I.
(F.C.T.D.
IMM-3443-96), Muldoon, July 4, 1997, where the Court found that the
claimant's refusal to transfer bribes to Russian government officials
and to launder money was an expression of political opinion.
In Mousavi-Samani, Nasrin v.
M.C.I.
(F.C.T.D.,
IMM-4674-96), Heald, September 30, 1997, the court upheld the
CRDD's
determination that any possible retaliation the claimant feared after
making public a document detailing particulars of fraud committed
at the bank where she worked and resulting in the conviction of most
of the perpetrators, did not have a nexus to the definition. Exposing
the fraud did not amount to a challenge to the regime's authority
to govern.
See also Mehrabani, Paryoosh Solhjou v.
M.C.I.
(F.C.T.D.,
no. IMM-1798-97), Rothstein,
April 3, 1998, where the Court upheld the CRDD
finding that the claimant's fear of highly placed embezzlers whom
he had exposed and against whom he had testified in court did not
ground the claim in political opinion. Denouncing corruption was not
seen as a challenge to government activities, as the state (Iran),
had taken strong action against some of the corrupt officials; Valderrama,
Liz Garcia v. M.C.I.
(F.C.T.D.,
no. IMM-444-98), Reed,
August 5, 1998; and Murillo Garcia, Orlando Danilo v.
M.C.I.
(F.C.T.D.,
no. IMM-1792-98), Tremblay-Lamer,
March 4, 1999.
- In Ward, supra, footnote 1,
at 745, the Court found that the claimant was not part of a social group
since he was the target of highly individualized persecution due to
what he did as an individual and not because of any group characteristics
or association. This reasoning has been followed in Suarez,
supra, footnote 60, and in Munoz, supra,
footnote 60. In Munoz, the Court also found that exposing corruption
is a laudable goal but not fundamental to the human dignity of the claimant
and therefore does not place the claimant in a particular social group.
See also Mason, supra, footnote 22; and Soberanis,
supra, footnote 37.
In Valderrama, supra, footnote 61, counsel defined
the claimant's social group as "successful businessman opposed to
corruption and unwilling to pay bribes". The facts revealed that it
is "successful businessmen" who are being targeted, regardless of
their opposition to corruption. After considering Ward and
Chan the Court held that there was no nexus between the targeted
class and a Convention social group. See also Rangel Becerra,
Yanira Esthel v. M.C.I.
(F.C.T.D.,
no. IMM-3550-97), Pinard,
August 24, 1998.
- Klinko (F.C.A.),
supra, footnote 32. In Cen, supra, footnote
40, the claimant was sexually exploited by corrupt government officials.
The Court found she belonged to a particular social group of women subject
to exploitation and violation of security of the person. In Reynoso,
supra, footnote 45, the claimant was the target of a corrupt
mayor because she had uncovered his illegal activities. The Court held
that her knowledge of the mayor's corruption was an unchangeable characteristic
that placed her in a category one social group. See also Diamanama,
supra, footnote 61, Berrueta, supra, footnote
48; and Bohorquez, supra, footnote 55.
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