CHAPTER 3 - PERSECUTION

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TABLE OF CONTENTS

  1. 3.1. GENERALLY
    1. 3.1.1. Definition
      1. 3.1.1.1. Serious Harm
      2. 3.1.1.2. Repetition and Persistence
      3. 3.1.1.3. Nexus
      4. 3.1.1.4. Common Crime or Persecution?
      5. 3.1.1.5. Agent of Persecution
    2. 3.1.2. Cumulative Acts of Discrimination and/or Harassment
    3. 3.1.3. Forms of Persecution
      1. 3.1.3.1. Some Judicial Observations
  2. TABLE OF CASES

3. PERSECUTION

3.1. GENERALLY

3.1.1. Definition

Like other terms in the Convention refugee definition, "persecution" is a word whose meaning is neither self-evident nor defined in the Immigration and Refugee Protection Act (IRPA). Therefore, it has fallen to the courts to identify the boundaries of the word. Case-law has not only labelled specific behaviours as instances of persecution, but also has gone some distance toward identifying general hallmarks that must be present, or criteria that must be met, in order for actions or omissions to constitute persecution.

3.1.1.1. Serious Harm

First, to be considered persecution, the mistreatment suffered or anticipated must be serious.Note 1 And in order to determine whether particular mistreatment would qualify as "serious", one must examine:

  1. what interest of the claimant might be harmed; and
  2. to what extent the subsistence, enjoyment, expression or exercise of that interest might be compromised.

This approach has been approved by the courts, which have equated the notion of a serious compromising of interest with a key denial of a core human right. Thus, in Ward,Note 2 the Supreme Court said as follows:

Underlying the Convention is the international community's commitment to the assurance of basic human rights without discrimination. This is indicated in the preamble to the treaty as follows:
CONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights - have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.

This theme … provides an inherent limit to the cases embraced by the Convention. Hathaway, - at p. 108, thus explains the impact of this general tone on the treaty on refugee law:

The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way and that the sustained or systemic denial of core human rights is the appropriate standard.

This theme sets the boundaries for many of the elements of the definition of Convention "refugee". "Persecution", for example, undefined in the Convention, has been ascribed the meaning of "sustained or systemic violation of basic human rights demonstrative of a failure of state protection"; see Hathaway, - at pp. 104-105. So too Goodwin-Gill, … at p. 38 observes that "comprehensive analysis requires the general notion [of persecution] to be related to developments within the broad field of human rights". This has recently been recognized by the Federal Court of Appeal in the Cheung case.Note 3

In Chan,Note 4 La Forest J. (in dissent) reiterated that "[t]he essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way." Mr. Justice La Forest also said:

These basic human rights are not to be considered from the subjective perspective of one country ... By very definition, such rights transcend subjective and parochial perspectives and extend beyond national boundaries. This does not mean, however, that recourse to the municipal law [i.e. domestic or internal law] of the admitting nation may not be made. For such municipal law may well animate a consideration of whether the alleged feared conduct fundamentally violates basic human rights.Note 5

If the conduct does amount to persecution, there is no further requirement that the persecution be dramatic or appalling or horrendous,Note 6 unless the issue in the case involves the application of section 108(4) of the IRPA (section 2(3) of the former Immigration Act) (see Chapter 7, section 7.2).

The requirement that the harm be serious has led to a distinction between persecution on the one hand, and discrimination or harassment on the other, with persecution being characterized by the greater seriousness of the mistreatment which it involves.Note 7 Discrimination and harassment are sometimes conceived of as being distinct from persecution; alternatively, some references to persecution and discrimination imply that persecution is a subset of discrimination; but in either case, what distinguishes persecution - whether from discrimination or non-persecutory discrimination - is the degree of seriousness of the harm. The Court of Appeal has observed that "the dividing line between persecution and discrimination or harassment is difficult to establish."Note 8 As to the particular susceptibilities of a given claimant, the Court in NejadNote 9 said the following:

The CRDD did recognize and the Court agrees that there may be certain circumstances in which the particular characteristics or circumstances of a claimant ... might affect the assessment of whether certain acts or treatments are persecutory. [To] ... the extent that an agent of persecution intentionally plays upon or exploits the fact that a person suffers from a particular frailty or condition in order to cause harm, an act not normally or inherently persecutorial, may be transformed into an act of persecution.

That is beautiful in theory, but who knows what is the intention of the persecutor? Who knows what is the particular knowledge of the persecutor? One must look at the act and the effect.Note 10 And in this case, in particular, because of the old age of the applicants, it should have been more obvious to the CRDD panel that the effect upon them was that of persecution.

For additional material on the distinction between persecution and discrimination, see paragraph 54 of the UNHCR Handbook.

3.1.1.2. Repetition and Persistence

A second criterion of persecution is that the inflicting of harm occurs with repetition or persistence, or in a systematic way. This requirement has been approved in Ward (quoting Hathaway).Note 11 It also derives from the Court of Appeal decision in Rajudeen,Note 12 which is much-cited on this point:

The definition of Convention refugee in the Immigration Act does not include a definition of "persecution". Accordingly, ordinary dictionary definitions may be considered. The Living Webster Encyclopedic Dictionary defines "persecute" as:
"To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship."

The Shorter Oxford English Dictionary contains, inter alia, the following definitions of "persecution":

"A particular course or period of systematic infliction of punishment directed against those holding a particular (religious belief); persistent injury or annoyance from any source."

...[the evidence] establishes beyond doubt a lengthy period of systematic infliction of threats and of personal injury. The applicant was not mistreated because of civil unrest in Sri Lanka but because he was a Tamil and a Muslim.Note 13

The Court of Appeal later provided something of an elaboration in ValentinNote 14:

…it seems to me … that an isolated sentence can only in very exceptional cases satisfy the element of repetition and relentlessness found at the heart of persecution (cf. Rajudeen…) …Note 15

Jurisprudence also recognizes that some sentences and forms of punishment of undue proportion by the state may be considered as persecution, such as in certain cases involving military evaders.Note 16

These authorities notwithstanding, it would seem that persistence or repetition should not be regarded as a necessary element in all cases. Some forms of harm are unlikely to be inflicted repeatedly (e.g., female genital mutilation), or are simply incapable of being repeated (e.g., the killing of the claimant's family as a form of retribution against the claimant); nevertheless, they are so severe that their characterization as persecution seems beyond dispute.Note 17

In the case of Ranjha,Note 18 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. Nexus

For a claim to succeed, the definition of Convention refugee requires that the persecution be linked to a Convention ground. The Supreme Court of Canada noted in Ward that:

… the international community did not intend to offer a haven for all suffering individuals. The need for "persecution" in order to warrant international protection, for example, results in the exclusion of such pleas as those of economic migrants, i.e. individuals in search of better living conditions, and those of victims of natural disasters, even when the home state is unable to provide assistance. …Note 19

In Suvorova, the Court commented that in determining whether a nexus exits the claimant's narrative should be considered from the perspective of all Convention grounds. The Court noted that there is an obligation to consider all possible grounds for protection raised by the facts, even if they are not raised by a claimant.Note 20

Indirect persecution (see Chapter 9, section 9.4) does not constitute persecution within the meaning of the definition of Convention refugee as there is no personal nexus between the claimant's alleged fear and a Convention ground. Accordingly, the Federal Court of Appeal in Pour-Shariati held, overruling Bhatti,Note 21 a case recognizing the concept of indirect persecution, that:

We accordingly overrule Bhatti's recognition of the concept of indirect persecution as a principle of our refugee law. In the words of Nadon, J. in Casetellanos v. Canada (Solicitor General) (1994), 89 F.T.R. 1, 11, "since indirect persecution does not constitute persecution within the meaning of Convention refugee, a claim based on it should not be allowed." It seems to us that the concept of indirect persecution goes directly against the decision of this Court in Rizkallah v. Canada, A-606-90, decided 6 May 1992, [1992] F.C.J. No. 412, where it was held that there had to be a personal nexus between the claimant and the alleged persecution on one of the Convention grounds. One of these grounds is, of course, a "membership in a particular social group," a ground which allows for family concerns in on [sic] appropriate case.Note 22

In GranadaNote 23, 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…Note 24.
3.1.1.4. Common Crime or Persecution?

Persecution has been distinguished from random and arbitrary violenceNote 25 and from suffering as a result of a criminal act or a personal vendetta.Note 26 In a few of the cases where the claimant has been victimized by what might be characterized as a "common" crime, there has been some discussion of whether the mistreatment in question might qualify as "persecution". The Trial Division has said that most acts of persecution can be characterized as criminal, but that in an individual case the Refugee Division (now Refugee Protection Division - RPD) may nevertheless distinguish between criminal acts and persecution.Note 27 In the case of Alifanova,Note 28 the Court has further commented that while most acts of persecution are criminal in nature, not all criminal acts can be considered acts of persecution. It continues to give the following example: "Extortion is a criminal act. Threats of bodily harm is a criminal act. Because these criminal acts are made by Kazakhs against Russians does not make the act one of persecution." Some of the cases in this area involve personal vendettas, or the misuse of official position, or the witnessing of criminal acts.

With respect to cases involving domestic abuse, the Court of Appeal in Mayers,Note 29 said that the Refugee Division might find domestic violence to be persecution, but in the circumstances of the case, the Court was not required to make that finding.Note 30 The Trial Division, in a number of cases has regarded domestic abuse as persecution.Note 31 The cases often intertwine the discussion of whether domestic violence constitutes persecution with the question of whether victims of domestic violence constitute a particular social group. For example, in Resulaj,Note 32 the Court made the following observation:

Nothing prevents a woman from being both a victim of domestic violence and a victim of crime. It is well established that a women [sic] subject to domestic violence constitute a particular social group entitled to convention refugee protection. [Diluna; Narvaez]

Another earlier example is Aros,Note 33 where the Court noted:

Accepting that the applicant suffered physical and psychological abuse at the hands of her common law husband …, the panel made no overriding error in concluding she was not a member of a social group that faced persecution within the definition…

In assessing claims based on criminal acts, it is suggested that members inquire whether the harm is serious,Note 34 whether there is a serious possibility of the harm's occurring, whether the harm is inflicted for a Convention reason,Note 35 and whether state protection is available.Note 36 The finding of state protection must be made on the basis of the evidence before the panel rather than on mere speculation.Note 37 See also Chapter 4, section 4.7.

3.1.1.5. Agent of Persecution

Serious human rights violations may in fact issue not only from higher authorities of the state, but also from subordinate state authorities, or from persons who are not attached to the government; and whichever is the case, the Convention may apply. In order to be categorized as persecution, the harm need not emanate from the state; and the state need not be involved or be complicit in the perpetration of the harm.Note 38

The fact that those who inflict mistreatment are schoolchildren and schoolyard bullies is not relevant to the question of whether the mistreatment amounts to persecution.Note 39 Similarly, serious mistreatment inflicted by teenagers upon a minor claimant may not reasonably be regarded as mere pranks.Note 40

For more regarding the role of the state with respect to mistreatment of a claimant, see Chapter 6.

3.1.2. Cumulative Acts of Discrimination and/or Harassment

A given episode of mistreatment may constitute discrimination or harassment, yet not be serious enough to be regarded as persecution.Note 41 Indeed, a finding of discrimination rather than persecution is within the jurisdiction of the RPD.Note 42 Even so, acts of harassment, none amounting to persecution individually, may cumulatively constitute persecution.Note 43 Where the claimant has experienced more than one incident of mistreatment, the Refugee Protection Division may err if it only looks at each incident separately.Note 44 However, "it is insufficient for the RPD to simply state that it has considered the cumulative nature of the discriminatory acts", without any further analysis.Note 45 Moreover, the Court has also commented on the need to consider whether the repeated incidents of harassment in the past may lead to a serious possibility of persecution in the future.Note 46

It is appropriate to consider both the actions of the government against the individual claimant and the overall atmosphere created by the state's intolerance.Note 47

See also paragraphs 53, 54, 55, 67 and 201 of the UNHCR Handbook.

The Federal Court in Liang, citing paragraphs 54 and 55 of the UNHCR Handbook affirmed that in the exercise of determining whether cumulative discrimination and harassment constitutes persecution it is necessary to evaluate the claimant's personal circumstances and vulnerabilities including age, health, and finances.Note 48

In assessing whether cumulative acts of discrimination amount to persecution it is necessary first to decide whether an individual act constitutes harassment or is discriminatory. The Federal Court in HundNote 49 concluded that it would be an error to consider acts that are erroneously characterized as discriminatory in assessing whether cumulative acts of discrimination amount to persecution. Such acts could include abandonment by one's own family, general threats made at community meetings, and relocating. Also, the "cumulative effect" should only consider incidents related to a Convention reason.

Where state protection is available for the types of events alleged as discriminatory, the cumulative assessment is not necessary.Note 50

In Munderere,Note 51 the Federal Court of Appeal stated that "there is nothing in paragraph 53 of the UNHCR Handbook which could justify an expansion of the cumulative effect of incidents doctrine to events that occurred in two different countries." The Court held that, when analyzing cumulative grounds, "[a]s a matter of principle, events which occur in a country other than that in respect of which a claimant seeks refugee status should not be considered."Note 52 However, the Court added the following caveat: 'except where the events which occur in a country other than that in respect of which a claimant seeks refugee status are relevant to the determination of whether the country where a claimant seeks refugee status can protect him or her from persecution."Note 53

3.1.3. Forms of Persecution

3.1.3.1. Some Judicial Observations

It is impossible to compile an exhaustive catalogue of forms of persecution. Furthermore, whether particular harm constitutes persecution may depend upon the facts of the individual case. Nevertheless, here are some of the more instructive observations that emerge from the case law. (NOTE: The statements which follow should be approached with caution. To obtain context and understand the statements fully, the reader should consult the cases on which they are based.)

  • Torture, beatings and rape are prime examples of persecution.Note 54
  • The term "discrimination" is not adequate to describe behaviour which includes acts of violence and death threats.Note 55
  • Death threats may constitute persecution even if the persons making the threats refrain from carrying them out.Note 56 Whether death threats do amount to acts of persecution depends upon the personal circumstances of the claimant.Note 57
  • When imposed for certain offences, the death penalty may not constitute persecution.Note 58
  • Forced or strongly coerced sterilization constitutes persecution, whether the victim is a womanNote 59 or a man.Note 60 Forced abortion also constitutes persecution,Note 61 as does the forcible insertion of an IUD.Note 62
  • Female circumcision is a "cruel and barbaric practice", a "horrific torture", and an "atrocious mutilation".Note 63
  • For "persecution" to exist within the meaning of the definition, it is not necessary for the subject to have been deprived of his freedom.Note 64
  • There may be persecution even if there is no physical harm or mistreatment.Note 65
  • Psychological violence may be an element in persecution.Note 66
  • The bringing of a trumped-up charge, and interference in the due process of law, may be aspects of persecutory treatment.Note 67
  • The fact that the claimant, along with all of his or her co-nationals, suffers curtailment of freedom of speech, in and of itself does not amount to persecution.Note 68
  • Barring one claimant from obtaining citizenship and from taking part in political activities, and barring a second claimant (a citizen) from voting and from otherwise participating in the political process, did not constitute persecution, where the claimants enjoyed numerous other rights.Note 69
  • Punishment for violation of a law concerning dress may constitute persecution.Note 70
  • Denial of a right of return may constitute an act of persecution.Note 71
  • Simple statelessness does not make one a Convention refugee.Note 72
  • Economic penalties may be an acceptable means of enforcing a state policy,Note 73 where the claimant is not deprived of his or her right to earn a livelihood.Note 74
  • Where the state interferes substantially with the claimant's ability to find work, the possibility of the claimant's finding illegal employment is not an acceptable remedy.Note 75
  • Permanently depriving an educated professional of his or her accustomed occupation and limiting the person to farm and factory work constituted persecution.Note 76
  • By itself, confiscation of property is not sufficiently grave to constitute persecution.Note 77
  • Serious economic deprivations may be components of persecution.Note 78
  • Extortion may be one of the indicia of persecution, depending upon the reason for the extortion and the motivation of the claimant in paying.Note 79
  • A child who would experience hardships including deprivation of medical care, education opportunities, employment opportunities and food would suffer concerted and severe discrimination, amounting to persecution.Note 80
  • Education is a basic human right and a nine-year-old claimant who could have avoided persecution only by refusing to go to school was deemed to be a Convention refugee.Note 81
  • It is not an act of persecution to ban certain groups of children from attending public schools, if they are permitted to have their own schools.Note 82
  • Forcing a woman into a marriage violates one of her basic human rights.Note 83
  • An impediment to the claimant's marrying in her homeland did not constitute persecution.Note 84
  • Legal restrictions allowing certain categories of people to settle only in certain areas did not constitute persecution.Note 85
  • A law which requires a person to forsake the principles or practices of his or her religion is patently persecutory, so long as the principles or practices in question are not unreasonable.Note 86 Sanctions such as a short detention, fine or re-education term, which might have been imposed upon the claimant for practising his religion or belonging to a particular religious community, were serious measures of discrimination and constituted persecution.Note 87
  • Injury to pride and political sensibilities did not amount to a violation of security of the person.Note 88
  • Lamentable rough treatment, involving detention and interrogation, in a country that is experiencing serious terrorist activity, does not of itself amount to persecution.Note 89
  • Minor children who are expected to provide support for other family members, after being smuggled into Canada, are not persecuted by their parents.Note 90
  • The act of being illegally trafficked is not in itself persecution simply because the claimant is a minor.Note 91
  • Restrictions by a state on a foreign spouse's entry into its territory that are not made on a discriminatory basis do not constitute persecution.Note 92
  • Forcing non-religious or secular persons to adhere to strict Islamic codes will not generally amount to persecution (particularly where there is evidence of significant improvements).Note 93
  • Insults and attacks on a conscientious objector while in prison do not constitute persecution.Note 94

TABLE OF CASES

  1. Abdel-Khalik, Fadya Mahmoud v. M.E.I. (F.C.T.D., no. IMM-883-93), Reed, January 31, 1994. Reported: Abdel-Khalik v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 262 (F.C.T.D.)
  2. Abouhalima, Sherif v. M.C.I. (F.C.T.D., no. IMM-835-97), Gibson, January 30, 1998
  3. Abramov, Andrei v. M.C.I. (F.C.T.D., no. IMM-3576-97), Tremblay-Lamer, June 15, 1998
  4. Abrego, Apolonio Paz v. M.E.I. (F.C.A., no. A-348-91), Hugessen, Linden, Holland, February 18, 1993
  5. Abu El Hof, Nimber v. M.C.I. (F.C., no. IMM-1494-05), von Finckenstein, November 8, 2005; 2005 FC 1515
  6. Ahmad, Rizwan v. S.G.C. (F.C.T.D., no. IMM-7180-93), Teitelbaum, March 14, 1995
  7. 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.)
  8. Alifanova, Nathalia v. M.C.I. (F.C.T.D., no. IMM-5501-97), Teitelbaum, December 11, 1998
  9. Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996
  10. Amayo v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 520 (C.A.)
  11. Ammery, Poone v. S.S.C. (F.C.T.D., no. IMM-5405-93), MacKay, May 11, 1994
  12. Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.)
  13. Ansar, Iqbal v. M.C.I. (F.C.T.D., no. IMM-4124-97), Campbell, July 22, 1998
  14. Antonio, Pacato Joao v. M.E.I. (F.C.T.D., no. IMM-1072-93), Nadon, September 27, 1994
  15. Arafa, Mohammed v. M.E.I. (F.C.T.D., no. A-663-92), Gibson, November 3, 1993
  16. Arguello-Garcia, Jacobo Ignacio v. M.E.I. (F.C.T.D., no. 92-A-7335), McKeown, June 23, 1993. Reported: Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.)
  17. Aros, Angelica Elizabeth Navarro v. M.C.I. (F.C.T.D., no. IMM-4480-96), MacKay, February 11, 1998
  18. Asadi, Sedigheh v. M.C.I. (F.C.T.D., no. IMM-1921-96), Lutfy, April 18, 1997
  19. Atwal, Mohinder Singh v. M.C.I. (F.C.T.D., no. IMM-6769-98), Nadon, November 17, 1999
  20. Aykut, Ibrahim v. M.C.I. (F.C., no. IMM-5310-02), Gauthier, March 26, 2004; 2004 FC 466
  21. Balendra, Cheran v. M.C.I. (F.C.T.D., no. IMM-1653-94), Richard, January 30, 1995
  22. BC v. M.C.I. (F.C., no. IMM-4840-02), Gibson, July 4, 2003; 2003 FC 826
  23. Bencic, Eva v. M.C.I. (F.C.T.D., no. IMM-3711-00), Kelen, April 26, 2002; 2002 FCT 476
  24. Bhatti, Naushaba v. S.S.C. (F.C.T.D., no. A-89-93), Jerome, September 14, 1994. Reported: Bhatti v. Canada (Secretary of State) (1994), 25 Imm. L.R. (2d) 275 (F.C.T.D.)
  25. Bougai, Zoia (a.k.a. Bougai, Zoya) v. M.C.I. (F.C.T.D., no. IMM-4966-94), Gibson, June 15, 1995
  26. Bragagnini-Ore, Gianina Evelyn v. S.S.C. (F.C.T.D., no. IMM-2243-93), Pinard, February 4, 1994
  27. Bursuc, Cristinel v. M.C.I. (F.C.T.D., no. IMM-5706-01), Dawson, September 11, 2002; 2002 FCT 957
  28. Cetinkaya, Lukman v. M.C.I. (F.C.T.D., no. IMM-2559-97), Muldoon, July 31, 1998
  29. Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (C.A.)
  30. Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593
  31. Chen, Shun Guan v. M.C.I. (F.C.T.D., no. IMM-1433-96), Lutfy, January 31, 1997
  32. Chen, Yo Long v. M.C.I. (F.C.T.D., no. IMM-487-94), Richard, January 30, 1995
  33. Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.)
  34. Chu, Zheng-Hao v. M.C.I. (F.C.T.D., no. IMM-5159-94), Jerome, January 17, 1996
  35. Cortez, Delmy Isabel v. S.S.C. (F.C.T.D., no. IMM-2482-93), McKeown, December 15, 1993
  36. Daghmash, Mohamed Hussein Moustapha v. M.C.I. (F.C.T.D., no. IMM-4302-97), Lutfy, June 19, 1998
  37. Devi, Nalita v. M.C.I. (F.C., no. IMM-3994-06), Layden-Stevenson, February 8, 2007; 2007 FC 149
  38. 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.)
  39. Dragulin, Constantin Marinescu v. S.G.C. (F.C.T.D., no. IMM-46-94), Rouleau, December 23, 1994
  40. El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994
  41. El Khatib: M.C.I. v. El Khatib, Naif (F.C.A., no. A-592-94), Strayer, Robertson, McDonald, June 20, 1996
  42. Falberg, Victor v. M.C.I. (F.C.T.D., no. IMM-328-94), Richard, April 19, 1995
  43. Fathi-Rad, Farideh v. S.S.C. (F.C.T.D., no. IMM-2438-93), McGillis, April 13, 1994
  44. Frid, Mickael v. M.C.I. (F.C.T.D., no. IMM-6694-93), Rothstein, December 15, 1994
  45. Gebre-Hiwet, Tewodros v. M.C.I. (F.C., no. IMM-3844-09), Phelan, April 30, 2010; 2010 FC 482
  46. Gidoiu, Ion v. S.S.C. (F.C.T.D., no. IMM-2907-94), Wetston, April 6, 1995
  47. Gnanam, Ulakanayaki v. M.E.I. (F.C.T.D., no. IMM-2165-93), Simpson, August 31, 1994 (reasons signed March 31, 1995)
  48. Gomez-Rejon, Bili v. M.E.I. (F.C.T.D., no. IMM-470-93), Joyal, November 25, 1994
  49. Gonzalez, Brenda Yojana v. M.C.I. (F.C.T.D., no. IMM-1092-01), Dawson, March 27, 2002; 2002 FCT 345
  50. Granada, Armando Ramirez v. M.C.I. (F.C., no. IMM-83-04), Martineau, December 21, 2004; 2004 FC 1766
  51. Gutkovski, Alexander v. S.S.C. (F.C.T.D., no. IMM-746-94), Teitelbaum, April 6, 1995
  52. Hamdan: M.C.I. v. Hamdan, Amneh (F.C., no. IMM-7723-04), Gauthier, March 6, 2006; 2006 FC 290
  53. Hazarat, Ghulam v. S.S.C. (F.C.T.D., no. IMM-5496-93), MacKay, November 25, 1994
  54. He, Shao Mei v. M.E.I. (F.C.T.D., no. IMM-3024-93), Simpson, June 1, 1994. Reported: He v. Canada (Minister of Employment and Immigration) (1994), 25 Imm. L.R. (2d) 128 (F.C.T.D.)
  55. Herczeg, Zsolt v. M.C.I. (F.C., no. IMM-5538-06), Mandamin, October 23, 2007; 2007 FC 2000
  56. Horvath, Karoly v. M.C.I. (F.C.T.D., no. IMM-4335-99), MacKay, April 27, 2001
  57. Hund: M.C.I. v. Hund, Matthew, (IMM-5512-07), Lagacé, February 5, 2009; 2009 FC 121
  58. Igumnov, Sergei v. M.C.I. (F.C.T.D., no. IMM-6993-93), Rouleau, December 16, 1994
  59. Iossifov, Svetoslav Gueorguiev v. M.E.I. (F.C.T.D., no. A-854-92), McKeown, December 8, 1993
  60. Iruthayanathar, Joseph v. M.C.I. (F.C.T.D., no. IMM-3619-99), Gibson, June 15, 2000
  61. Jebnoun, Fadhila v. M.C.I. (F.C.T.D., no. IMM-6261-93), McGillis, January 12, 1995. Reported: Jebnoun v. M.C.I. (1995), 28 Imm. L.R. (2d) 67 (F.C.T.D.)
  62. Kadenko, Ninal v. S.G.C. (F.C.T.D., no. IMM-809-94), Tremblay-Lamer, June 9, 1995. Reported: Kadenko v. Canada (Solicitor General) (1995), 32 Imm. L.R. (2d) 275 (F.C.T.D.)
  63. Kadenko: M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Décary, Hugessen, Chevalier, October 15, 1996
  64. Kadhm, Suhad Mohamed v. M.C.I. (F.C.T.D., no. IMM-652-97), Muldoon, January 8, 1998
  65. Kanagalingam, Uthayakumari v. M.C.I. (F.C.T.D., no IMM-566-98), Blais, February 10, 1999
  66. Karaseva, Tatiana v. M.C.I. (F.C.T.D., no. IMM-4683-96), Teitelbaum, November 26, 1997
  67. Karpounin, Maxim Nikolajevitsh v. M.E.I. (F.C.T.D., no. IMM-7368-93), Jerome, March 10, 1995
  68. Kassatkine, Serguei v. M.C.I. (F.C.T.D., no. IMM-978-95), Muldoon, August 20, 1996
  69. Kaur, Biba v. M.C.I. (F.C.T.D., no. IMM-305-96), Jerome, January 17, 1997
  70. Kaya, Nurcan v. M.C.I. (F.C., no. IMM-5565-03), Harrington, January 14, 2004; 2004 FC 45
  71. Kazkan, Shahrokh Saeedi v. M.C.I. (F.C.T.D., no. IMM-1313-96), Rothstein, March 20, 1997
  72. Keninger, Erzsebet v. M.C.I. (F.C.T.D., no. IMM-3096-00), Gibson, July 6, 2001
  73. Kicheva, Zorka v. M.E.I. (F.C.T.D., no. A-625-92), Denault, December 23, 1993
  74. Kularatnam, Suhitha v. M.C.I. (F.C., no. IMM-3530-03), Phelan, August 12, 2004; 2004 FC 1122
  75. Kwiatkowsky v. Canada (Minister of Employment and Immigration), [1982] 2 S.C.R. 856
  76. Lai, Quang v. M.E.I. (F.C.T.D., no. IMM-307-93), McKeown, May 20, 1994
  77. Lerer, Iakov v. M.C.I. (F.C.T.D., no. IMM-7438-93), Cullen, January 5, 1995
  78. Li, Qing Bing v. M.C.I. (F.C.T.D., no. IMM-5095-98), Reed, August 27, 1999
  79. Liang, Hanquan v. M.C.I. (F.C. no. IMM-3342-07), Tremblay-Lamer, April 8, 2008; 2008 FC 450
  80. Lin, Qu Liang v. M.E.I. (F.C.A., no. 93-A-142), Rouleau, July 20, 1993. Reported: Lin v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 208 (F.C.T.D.)
  81. Lin: M.C.I. v. Lin, Chen (F.C.A., no. A-3-01) Desjardins, Décary, Sexton, October 18, 2001
  82. Ling, Che Keung v. M.E.I. (F.C.T.D., no. 92-A-6555), Muldoon, May 20, 1993
  83. Maarouf v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 723 (T.D.)
  84. Madelat, Firouzeh v. M.E.I., Mirzabeglui, Maryam v. M.E.I. (F.C.A., nos. A-537-89 and A-538-89), MacGuigan, Mahoney, Linden, January 28, 1991
  85. Malchikov, Alexander v. M.C.I. (F.C.T.D., no. IMM-1673-95), Tremblay-Lamer, January 18, 1996
  86. Marshall, Matin v. M.C.I. (F.C., no. IMM-3638-07), O'Keefe, August 14, 2008; 2008 FC 946
  87. Mayers: Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154 (C.A.)
  88. Mendoza, Elizabeth Aurora Hauayek v. M.C.I. (F.C.T.D., no. IMM-2997-94), Muldoon, January 24, 1996
  89. Mete, Dursun Ali v. M.C.I. (F.C., no. IMM-2509-04), Dawson, June 17, 2005; 2005 FC 840
  90. Molaei, Farzam v. M.C.I. (F.C.T.D., no. IMM-1611-97), Muldoon, January 28, 1998
  91. Montoya, Hernan Dario Calderon v. M.C.I. (F.C.T.D., no. IMM-5027-00), Hansen, January 18, 2002; 2002 FCT 63
  92. Mortera, Senando Layson v. M.E.I. (F.C.T.D., no. A-1084-92), McKeown, December 8, 1993
  93. Moudrak, Vanda v. M.C.I. (F.C.T.D., no. IMM-1480-97), Teitelbaum, April 1, 1998
  94. Mousavi-Samani, Nasrin v. M.C.I. (F.C.T.D., no. IMM-4674-96), Heald, September 30, 1997
  95. Munderere: M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Nadon, Décary, Létourneau, March 5, 2008; 2008 FCA 84
  96. Munoz, Alfonso La Rotta v. M.C.I. (F.C.T.D., no. IMM-2207-93), Pinard, November 28, 1994
  97. Murugamoorthy, Rajarani v. M.C.I. (F.C., no. IMM-4706-02), O'Reilly, September 29, 2003; 2003 FC 1114
  98. Murugiah, Rahjendran v. M.E.I. (F.C.T.D., no. 92-A-6788), Noël, May 18, 1993
  99. Muthuthevar, Muthiah v. M.C.I. (F.C.T.D., no. IMM-2095-95), Cullen, February 15, 1996
  100. Naikar, Muni Umesh v. M.E.I. (F.C.T.D., no. 93-A-120), Joyal, June 17, 1993
  101. Namitabar v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 42 (T.D.)
  102. Narvaez v. Canada (Minister of Citizenship and Immigration), [1995] 2 F.C. 55 (T.D.)
  103. Ndegwa, Joshua Kamau v. M.C.I. (F.C., no. IMM-6058-05), Mosley, July 5, 2006; 2006 FC 847
  104. Nejad, Hossein Hamedi v. M.C.I. (F.C.T.D., no. IMM-2687-96), Muldoon, July 29, 1997
  105. Nina, Razvan v. M.C.I. (F.C.T.D., no. A-725-92), Cullen, November 24, 1994
  106. Njoko, Tubila v. M.E.I. (F.C.T.D., no. A-1698-92), Jerome, January 25, 1995
  107. Oyarzo v. Canada (Minister of Employment and Immigration), [1982] 2 F.C. 779 (C.A.)
  108. Pierre-Louis, Edy v. M.E.I. (F.C.A., no. A-1264-91), Hugessen, MacGuigan, Décary, April 29, 1993
  109. Porto, Javier Cardozo v. M.E.I. (F.C.T.D., no. A-1549-92), Noël, September 3, 1993
  110. Pour-Shariati, Dolat v. M.E.I. (F.C.A., no. A-721-94), MacGuigan, Robertson, McDonald, June 10, 1997, at 4. Reported: Pour-Shariati v. Canada (Minister of Employment and Immigration) (1997), 39 Imm. L.R. (2d) 103 (F.C.A.)
  111. R. v. Smith, [1987] 1 S.C.R. 1045
  112. Rabbani, Farideh v. M.C.I. (F.C.T.D., no. IMM-2032-96), McGillis, June 3, 1997
  113. Rajah, Jeyadevan v. M.E.I. (F.C.T.D., no. 92-A-7341), Joyal, September 27, 1993
  114. Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984. Reported: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.)
  115. Ramirez, Rosa Etelvina v. S.G.C. (F.C.T.D., no. IMM-1192-94), Rouleau, December 9, 1994
  116. Ranjha, Muhammad Zulfiq v. M.C.I. (F.C.T.D., no. IMM-5566-01), Lemieux, May 21, 2003; 2003 FCT 637
  117. Ravji, Shahsultan Meghji v. M.E.I. (F.C.T.D., no. A-897-92), McGillis, August 4, 1994
  118. Rawji, Riayz v. M.E.I. (F.C.T.D., no. IMM-5929-93), Gibson, November 25, 1994
  119. Resulaj, Blerina v. M.C.I. (F.C., no. IMM-7205-03), Von Finckenstein, September 14, 2004
  120. Retnem, Rajkumar v. M.E.I. (F.C.A., no. A-470-89), MacGuigan, Décary, Pratte (dissenting), May 6, 1991. Reported: Retnem v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 317 (F.C.A.)
  121. Rodionova, Svetlana v. M.E.I. (F.C.T.D., no. 92-A-6839), Strayer, July 7, 1993
  122. Rodriguez-Hernandez, Severino Carlos v. S.S.C. (F.C.T.D., no. A-19-93), Wetston, January 10, 1994
  123. S.S.C. v. Namitabar, Parisa (F.C.A., no. A-709-93), Décary, Hugessen, Desjardins, October 28, 1996
  124. Saddouh (Kaddouh), Sabah v. M.E.I. (F.C.T.D., no. IMM-2200-93), Denault, February 2, 1994
  125. Sagharichi, Mojgan v. M.E.I. (F.C.A., no. A-169-91), Isaac, Marceau, MacDonald, August 5, 1993. Reported: Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.)
  126. Serwaa, Akua v. M.C.I. (F.C., no. IMM-295-05), Pinard, December 20, 2005; 2005 FC 1653
  127. Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983
  128. Singh, Tejinder Pal v. M.C.I. (F.C.T.D., no. IMM-5294-97), Muldoon, December 23, 1997
  129. Sinnathamby, Jayasrikanthan v. M.E.I. (F.C.T.D., no. IMM-179-93), Noël, November 2, 1993. Reported: Sinnathamby v. Canada (Minister of Employment and Immigration) (1993), 23 Imm. L.R. (2d) 32 (F.C.T.D.)
  130. Sirin, Hidayet v. M.C.I. (F.C.T.D., no. IMM-5720-93), Pinard, November 28, 1994
  131. Sivapoosam, Sivakumar v. M.C.I. (F.C.T.D., no. IMM-2674-95), Reed, June 19, 1996
  132. Soto, Marie Marcelina Troncoso v. M.C.I. (F.C.T.D., no. IMM-3734-01), Tremblay-Lamer, July 10, 2002; 2002 FCT 768
  133. Srithar, Suntharalingam v. M.C.I. (F.C.T.D., no. IMM-158-97), Tremblay-Lamer, October 10, 1997
  134. Sulaiman, Hussaine Hassan v. M.C.I. (F.C.T.D., no. IMM-525-94), MacKay, March 22, 1996
  135. Suvorova, Galina v. M.C.I. (F.C., no. IMM-3447-08), Russell, April 14, 2009; 2009 FC 373
  136. Thathaal, Sabir Hussain v. S.S.C. (F.C.T.D., no. A-1644-92), McKeown, December 15, 1993
  137. Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.)
  138. Treskiba, Anatoli Benilov v. M.C.I. (F.C., no. IMM-1999-08), Pinard, January 13, 2009; 2009 FC 15
  139. Vaamonde Wulff, Monica Maria v. M.C.I. (F.C., no. IMM-4292-05), Rouleau, June 9, 2006; 2006 FC 725
  140. Valdes, Roberto Manuel Olivares v. M.C.I. (F.C.T.D., no. IMM-1902-97), Pinard, April 24, 1998. Reported: Valdes v. Canada (Minister of Citizenship and Immigration) (1998), 47 Imm. L.R. (2d) 125 (F.C.T.D.)
  141. Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.)
  142. Vasudevan, Prakash v. S.S.C. (F.C.T.D., no. IMM-81-94), Gibson, July 11, 1994
  143. Velluppillai, Selvaratnam v. M.C.I. (F.C.T.D., no. IMM-2043-99), Gibson, March 9, 2000
  144. Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60 (T.D.)
  145. Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85
  146. Xiao, Mei Feng v. M.C.I., (F.C.T.D., no. IMM- 953-00), Muldoon, March 16, 2002; 2001 FCT 195
  147. Xie, Sheng v. M.E.I. (F.C.T.D., no. A-1573-92), Rothstein, March 3, 1994
  148. Yoli, Hernan Dario v. M.C.I. (F.C.T.D., no. IMM-399-02), Rouleau, December 30, 2002; 2002 FCT 1329
  149. Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.)
  150. Zefi, Sheko v. M.C.I. (F.C.T.D., no. IMM-1089-02), Lemieux, May 21, 2003; 2003 FCT 636
  151. Zheng, Jin Dong v. M.C.I. (F.C.T.D., no. IMM-2415-01), Martineau, April 19, 2002; 2002 FCT 448
  152. Zheng, Jin Xia v. M.C.I. (F.C., no. IMM-3121-08), Barnes, March 30, 2009; 2009 FC 327
  153. Zhu, Long Wei v. M.C.I. (F.C.T.D., no. IMM-2746-00) Muldoon, August 13, 2001
  154. Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.)

Notes

Note 1

Sagharichi, Mojgan v. M.E.I. (F.C.A., no. A-169-91), Isaac, Marceau, MacDonald, August 5, 1993, at 2. Reported: Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.); Leave to appeal to the Supreme Court of Canada was denied without reasons on February 17, 1994 [1993] S.C.C.A. No. 461 (QL); Saddouh (Kaddouh), Sabah v. M.E.I. (F.C.T.D., no. IMM-2200-93), Denault, February 2, 1994, where the Court dealt with acts of extortion.

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Note 2

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 20 Imm. L.R. (2d) 85.

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Note 3

Ward, ibid., at 733-734. See also Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), at 324-325.

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Note 4

Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, at 635.

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Note 5

Chan, ibid., at 635. The majority of the Court decided the case on other grounds and did not rule explicitly on this issue. For a more detailed discussion of the Chan judgment, see Chapter 9, section 9.3.7. With respect to considering Canadian standards or laws see Antonio, Pacato Joao v. M.E.I. (F.C.T.D., no. IMM-1072-93), Nadon, September 27, 1994, at 11-12. See also the UNHCR Handbook, paragraph 60.

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Note 6

El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994, at 4. The appeal was dismissed by the Federal Court of Appeal: M.C.I. v. El Khatib, Naif (F.C.A., no. A-592-94), Strayer, Robertson, McDonald, June 20, 1996.

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Note 7

Naikar, Muni Umesh v. M.E.I. (F.C.T.D., no. 93-A-120), Joyal, June 17, 1993, at 2; Sagharichi, supra, footnote 1, at 2 (unreported); Saddouh, supra, footnote 1. See also Kwiatkowsky v. Canada (Minister of Employment and Immigration), [1982] 2 S.C.R. 856, at 862 and 863. The Trial Division has also distinguished between persecution and mere unfairness: Chen, Yo Long v. M.C.I. (F.C.T.D., no. IMM-487-94), Richard, January 30, 1995, at 4.

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Note 8

Sagharichi, supra, footnote 1, at 2, per Marceau J.A. Even though the claimant may not be able to point to an individual episode of mistreatment which could be characterized as persecution, the claimant may still have experienced persecution or have good grounds for fearing persecution: see the discussion of cumulative acts in section 3.1.2. of this chapter, and the discussion of well-founded fear in Chapter 5.

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Note 9

Nejad, Hossein Hamedi v. M.C.I. (F.C.T.D., no. IMM-2687-96), Muldoon, July 29, 1997, at 2. In the typescript of the Court's reasons, the first portion of this passage is presented as though it were part of a quotation from Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.); however, the statements in question do not actually appear in that case, and seem instead to have been the words of Muldoon J. himself. On this same theme, see paragraphs 40 and 52 of the UNHCR Handbook.

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Note 10

Compare these lines with the affirmation in Ward, supra, footnote 2, at 747, that "[t]he examination of the circumstances should be approached from the perspective of the persecutor", and with the emphasis placed upon the intent of a law (which may be equated with the intent of the agent of persecution) by Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.), at 552, quoted in Chapter 9, section 9.3.2. (proposition 1). Compare also Zolfagharkhani's assertion, at 552, that the neutrality of a law is to be judged objectively: see Chapter 9, section 9.3.2. (proposition 2).

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Note 11

Ward, supra, footnote 2, at 733-734. See excerpt reproduced at pages 1-2 of this chapter.

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Note 12

Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984. Reported: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.).

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Note 13

Rajudeen, ibid., at 133-134, per Heald J.A.

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Note 14

Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.), at 396, per Marceau J.A.

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Note 15

See also Kadenko, Ninal v. S.G.C. (F.C.T.D., no. IMM-809-94), Tremblay-Lamer, June 9, 1995. Reported: Kadenko v. Canada (Solicitor General) (1995), 32 Imm. L.R. (2d) 275 (F.C.T.D.), rev'd M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Décary, Hugessen, Chevalier, October 15, 1996, where the Trial Division, at 6, considered a dictionary definition of "isolated", and concluded that, where repeated incidents of harassment, together with physical attacks, had occurred over the course of a year and a half, it was unreasonable to speak of "isolated" acts. (The Court of Appeal reversed the decision on the issue of state protection and did not deal with the persecution findings. Leave to appeal to the Supreme Court of Canada was denied without reasons on May 8, 1997, [1996] C.S.C.R. No. 612 (QL). In Ahmad, Rizwan v. S.G.C. (F.C.T.D., no. IMM-7180-93), Teitelbaum, March 14, 1995, at paragraph 23, the Court distinguished between systematic events and ones that were only periodic.

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Note 16

Abramov, Andrei v. M.C.I. (F.C.T.D., no. IMM-3576-97), Tremblay-Lamer, June 15, 1998.

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Note 17

In two decisions, the Trial Division certified questions regarding the need for persistence, the questions being almost identical in the two cases: Murugiah, Rahjendran v. M.E.I. (F.C.T.D., no. 92-A-6788), Noël, May 18, 1993, at 6; and Rajah, Jeyadevan v. M.E.I. (F.C.T.D., no. 92-A-7341), Joyal, September 27, 1993, at 5-6. In Rajah, the question was phrased thus: "Whether 'persecution' within the meaning of the Convention Refugee definition requires systematic and persistent acts or whether one or two violations of basic and inalienable rights such as forced labour or beatings while in police detention is enough to constitute 'persecution'." However, neither case was heard on appeal. The Federal Court of Appeal granted a motion to dismiss the appeal in Murugiah on April 4, 1997, on the grounds that the appeal was moot (F.C.A., no. A-326-93). In Rajah, the Federal Court of Appeal dismissed an application for an extension of time to file a notice of appeal (February 1, 1995).

Essentially the same question was proposed for certification in Muthuthevar, Muthiah v. M.C.I. (F.C.T.D., no. IMM-2095-95), Cullen, February 15, 1996. Cullen J., declining to certify, said at 5: "I think it is settled law that, in some instances, even a single transgression of the applicant's human rights would amount to persecution." See also Gutkovski, Alexander v. S.S.C. (F.C.T.D., no. IMM-746-94), Teitelbaum, April 6, 1995, where at 9, the Court noted: "…the events must be sufficiently serious or systematic to amount to a reasonable fear of persecution." (emphasis in original). However, note the discussion in Chapter 9, section 9.3.3. regarding "Policing Methods, National Security and Preservation of Social Order".

Return to note 17 referrer

Note 18

Ranjha, Muhammad Zulfiq v. M.C.I. (F.C.T.D., no. IMM-5566-01), Lemieux, May 21, 2003; 2003 FCT 637, at paragraph 42.

Return to note 18 referrer

Note 19

Ward, supra, footnote 2, at 732. See also the excerpt from Rajudeen, supra, footnote 12, reproduced in section 3.1.1.2. of this chapter. And see Karaseva, Tatiana v. M.C.I. (F.C.T.D., no. IMM-4683-96), Teitelbaum, November 26, 1997, at paragraphs 10, 14-15, and 17-22. In Molaei, Farzam v. M.C.I. (F.C.T.D., no. IMM-1611-97), Muldoon, January 28, 1998, the Court noted that there must be a nexus between the personal situation of the claimant and the general situation of the country of nationality in which the claimant fears persecution. And in Cetinkaya, Lukman v. M.C.I. (F.C.T.D., no. IMM-2559-97), Muldoon, July 31, 1998, the Court noted that while certain members of the PKK in Turkey may face persecution, it is for the claimant to demonstrate that she falls within that class of individuals who face persecution, as well as to provide the necessary link between her actions and the persecution feared. See also Li, Qing Bing v. M.C.I. (F.C.T.D., no. IMM-5095-98), Reed, August 27, 1999, where the claimant stated, among other things, that the government of China does not provide basic medical services, nor does it allow him an adequate opportunity to earn a living. The Court agreed with the CRDD that there was no nexus between the claimant's hardships and a Convention ground.

Return to note 19 referrer

Note 20

Suvorova, Galina v. M.C.I. (F.C., no. IMM-3447-08), Russell, April 14, 2009; 2009 FC 373.

Return to note 20 referrer

Note 21

Bhatti, Naushaba v. S.S.C. (F.C.T.D., no. A-89-93), Jerome, September 14, 1994. Reported: Bhatti v. Canada (Secretary of State) (1994), 25 Imm. L.R. (2d) 275 (F.C.T.D.).

Return to note 21 referrer

Note 22

Pour-Shariati, Dolat v. M.E.I. (F.C.A., no. A-721-94), MacGuigan, Robertson, McDonald, June 10, 1997, at 4. Reported: Pour-Shariati v. Canada (Minister of Employment and Immigration) (1997), 39 Imm. L.R. (2d) 103 (F.C.A.). Followed in Kanagalingam, Uthayakumari v. M.C.I. (F.C.T.D., no IMM-566-98), Blais, February 10, 1999, where the Court held that the loss of the claimant's father, brother and fiancé at the time when the IPKF governed the security situation in the north of Sri Lanka, was indirect persecution and, therefore, not persecution within the meaning of the definition. The Trial Division certified the following question in Gonzalez, Brenda Yojana v. M.C.I. (F.C.T.D., no. IMM-1092-01), Dawson, March 27, 2002; 2002 FCT 345: "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 a family, if the family member who is the principal target of the persecution is not subject to persecution for a Convention reason?" The appeal to the Federal Court of Appeal [in Gonzalez] was discontinued on February 7, 2003 (F.C.A., no. A-198-02). 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, at paragraph 14, 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.

Return to note 22 referrer

Note 23

Granada, Armando Ramirez v. M.C.I. (F.C., no. IMM-83-04), Martineau, December 21, 2004; 2004 FC 1766.

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Note 24

This concept of the family as a particular social group was further considered in Ndegwa, Joshua Kamau v. M.C.I. (F.C., no. IMM-6058-05), Mosley, July 5, 2006; 2006 FC 847, at paragraph 11, where the Court held that the claimant was "not just an 'unwilling spectator of violence' against other members of his family" (his wife and daughter), as described in Granada,[24] and that the RPD should have considered whether the claimant "himself may be at risk due to the relationship with his wife."

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Note 25

Abrego, Apolonio Paz v. M.E.I. (F.C.A., no. A-348-91), Hugessen, Linden, Holland, February 18, 1993.

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Note 26

See Chapter 4, section 4.7. See also Atwal, Mohinder Singh v. M.C.I. (F.C.T.D., no. IMM-6769-98), Nadon, November 17, 1999, where the Court agreed with the CRDD that there was no nexus between the applicant's claim and a Convention ground as the alleged acts of persecution were the result of personal vengeance and not the result of the claimant's political opinions.

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Note 27

Cortez, Delmy Isabel v. S.S.C. (F.C.T.D., no. IMM-2482-93), McKeown, December 15, 1993, at 2. See also Pierre-Louis, Edy v. M.E.I. (F.C.A., no. A-1264-91), Hugessen, MacGuigan, Décary, April 29, 1993, at 2 (personal vengeance); Sirin, Hidayet v. M.C.I. (F.C.T.D., no. IMM-5720-93), Pinard, November 28, 1994 (family vendetta); Balendra, Cheran v. M.C.I. (F.C.T.D., no. IMM-1653-94), Richard, January 30, 1995, at 3 (police corruption); and Karaseva, supra, footnote 17, at 14-15, and 17-22 (crimes allegedly with ethnic motivation).

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Note 28

Alifanova, Nathalia v. M.C.I. (F.C.T.D., no. IMM-5501-97), Teitelbaum, December 11, 1998.

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Note 29

Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154 (C.A.).

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Note 30

Mayers, ibid., at 169-170, per Mahoney J.A.

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Note 31

Diluna, Roselene Edyr Soares v. M.E.I. (F.C.T.D., no. IMM-3201-94), Gibson, March 14, 1995, at 4. Reported: Diluna v. Canada (Minister of Employment and Immigration) (1995), 29 Imm. L.R. (2d) 156 (F.C.T.D.). In an earlier decision, the Trial Division seemed inclined to the view that the abuse involved in the case did constitute persecution: Narvaez v. Canada (Minister of Citizenship and Immigration), [1995] 2 F.C. 55 (T.D.), at 64 and 70-1. See also Rodionova, Svetlana v. M.E.I. (F.C.T.D., no. 92-A-6839), Strayer, July 7, 1993; and Jebnoun, Fadhila v. M.C.I. (F.C.T.D., no. IMM-6261-93), McGillis, January 12, 1995. Reported: Jebnoun v. Canada (Minister of Citizenship and Immigration) (1995), 28 Imm. L.R. (2d) 67 (F.C.T.D.).

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Note 32

Resulaj, Blerina v. M.C.I. (F.C., no. IMM-7205-03), Von Finckenstein, September 14, 2004.

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Note 33

Aros, Angelica Elizabeth Navarro v. M.C.I. (F.C.T.D., no. IMM-4480-96), MacKay, February 11, 1998.

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Note 34

See, for example, Ravji, Shahsultan Meghji v. M.E.I. (F.C.T.D., no. A-897-92), McGillis, August 4, 1994 (the particular harm in question should have been considered by the Refugee Division in its assessment of cumulative acts).

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Note 35

See, for example: Gomez-Rejon, Bili v. M.E.I. (F.C.T.D., no. IMM-470-93), Joyal, November 25, 1994, at 3 and 8; Chen, supra, footnote 7, at 5; and Karpounin, Maxim Nikolajevitsh v. M.E.I. (F.C.T.D., no. IMM-7368-93), Jerome, March 10, 1995. In Rawji, Riayz v. M.E.I. (F.C.T.D., no. IMM-5929-93), Gibson, November 25, 1994, where crime had befallen the claimant and police had refused to investigate unless bribed, the Court indicated, at 2, that neither persecution nor nexus to a Convention ground was involved. See also Chapter 4, section 4.7. In Kaur, Biba v. M.C.I. (F.C.T.D., no. IMM-305-96), Jerome, January 17, 1997, the claimant had been raped while in detention. The Refugee Division characterized her as a "random victim of violence", finding no nexus to a Convention ground (and also no well-foundedness), but the Court held that the mistreatment "was a direct consequence of her detention for political reasons" (at 2).

In Mousavi-Samani, Nasrin v. M.C.I. (F.C.T.D., no. IMM-4674-96), Heald, September 30, 1997, the claimants had exposed fraud perpetrated by state officials, and feared retaliation and prosecution. As in Rawji, the Refugee Division had found both persecution and nexus to be lacking, and the Court upheld these findings.

For recent cases where the Court upheld the CRDD's finding of no nexus based on criminality, see: Montoya, Hernan Dario Calderon v. M.C.I. (F.C.T.D., no. IMM-5027-00), Hansen, January 18, 2002; 2002 FCT 63 (family targeted for kidnapping because of their wealth); Bencic, Eva v. M.C.I. (F.C.T.D., no. IMM-3711-00), Kelen, April 26, 2002; 2002 FCT 476 (persecution directly related to criminals seeking to extort money and automobiles); and Yoli, Hernan Dario v. M.C.I. (F.C.T.D., no. IMM-399-02), Rouleau, December 30, 2002; 2002 FCT 1329 (claimant had evidence regarding perpetrators' identity and criminal activities).

In Zefi, Sheko v. M.C.I. (F.C.T.D., no. IMM-1089-02), Lemieux, May 21, 2003; 2003 FCT 636, at paragraph 41, the Court held that a 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."

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Note 36

See, for example, Dragulin, Constantin Marinescu v. S.G.C. (F.C.T.D., no. IMM-46-94), Rouleau, December 23, 1994, at 3-5; and Njoko, Tubila v. M.E.I. (F.C.T.D., no. A-1698-92), Jerome, January 25, 1995, at 2.

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Note 37

Ansar, Iqbal v. M.C.I. (F.C.T.D., no. IMM-4124-97), Campbell, July 22, 1998.

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Note 38

Ward, supra, footnote 2, at 709, 717, 720-1; Chan, supra, footnote 4, per La Forest (dissenting) at 630.

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Note 39

Bougai, Zoia (a.k.a. Bougai, Zoya) v. M.C.I. (F.C.T.D., no. IMM-4966-94), Gibson, June 15, 1995, at 6.

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Note 40

Malchikov, Alexander v. M.C.I. (F.C.T.D., no. IMM-1673-95), Tremblay-Lamer, January 18, 1996, at paragraph 26.

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Note 41

Moudrak, Vanda v. M.C.I. (F.C.T.D., no. IMM-1480-97), Teitelbaum, April 1, 1998.

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Note 42

Valdes, Roberto Manuel Olivares v. M.C.I. (F.C.T.D., no. IMM-1902-97), Pinard, April 24, 1998. Reported: Valdes v. Canada (Minister of Citizenship and Immigration) (1998), 47 Imm. L.R. (2d) 125 (F.C.T.D.).

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Note 43

Madelat, Firouzeh v. M.E.I., Mirzabeglui, Maryam v. M.E.I. (F.C.A., nos. A-537-89 and A-538-89), MacGuigan, Mahoney, Linden, January 28, 1991; Retnem, Rajkumar v. M.E.I. (F.C.A., no. A-470-89), MacGuigan, Décary, Pratte (dissenting), May 6, 1991. Reported: Retnem v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 317 (F.C.A.), at 319; Iossifov, Svetoslav Gueorguiev v. M.E.I. (F.C.T.D., no. A-854-92), McKeown, December 8, 1993, at 2.

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Note 44

El Khatib, supra, footnote 6, at 3; Nina, Razvan v. M.C.I. (F.C.T.D., no. A-725-92), Cullen, November 24, 1994, at 9. For an examination of cumulative acts in the context of an internal flight alternative, see Chapter 8, section 8.5.1.

In Horvath, Karoly v. M.C.I. (F.C.T.D., no. IMM-4335-99), MacKay, April 27, 2001, referring to Retnem, supra, footnote 43, the Court held that it was an error for the Board to fail to consider the cumulative effect of the treatment suffered by the claimants when that treatment was consistently accepted as being discriminatory and as indicative of serious problems facing Roma in Hungary. Horvath was cited with approval in Keninger, Erzsebet v. M.C.I. (F.C.T.D., no. IMM-3096-00), Gibson, July 6, 2001.

Furthermore, in Bursuc, Cristinel v. M.C.I. (F.C.T.D., no. IMM-5706-01), Dawson, September 11, 2002; 2002 FCT 957, the Court held that, in considering the cumulative effect of incidents, the CRDD must have regard to the whole of the evidence, and not just evidence after the culminating incident.

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Note 45

Mete, Dursun Ali v. M.C.I. (F.C., no. IMM-2509-04), Dawson, June 17, 2005; 2005 FC 840, at paragraph 9. Furthermore, in Devi, Nalita v. M.C.I. (F.C., no. IMM-3994-06), Layden-Stevenson, February 8, 2007; 2007 FC 149, the Court stated, at paragraph 16, that "where the cumulative effect of a number of discriminating acts has the potential to result in a finding of persecution, it is not open to the RPD to place some acts [on] one side of the line [common criminality] and other acts on the other side of the line [harassment/discrimination], without providing some rationale for having done so."

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Note 46

Kadhm, Suhad Mohamed v. M.C.I. (F.C.T.D., no. IMM-652-97), Muldoon, January 8, 1998.

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Note 47

Rodriguez-Hernandez, Severino Carlos v. S.S.C. (F.C.T.D., no. A-19-93), Wetston, January 10, 1994, at 3.

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Note 48

Liang, Hanquan v. M.C.I. (F.C. no. IMM-3342-07), Tremblay-Lamer, April 8, 2008; 2008 FC 450.

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Note 49

In M.C.I. v. Hund, Matthew, (IMM-5512-07), Lagacé, February 5, 2009; 2009 FC 121, the Court found that the Board had erred in considering abandonment by the respondents' own family; targets and attacks by a deputy sheriff; threats made at public meetings by members of their community; and several relocations over a span of four years as cumulative acts of discrimination. The Court noted that the incidents did not fall within the definitions of discrimination and persecution. For example, with reference to abandonment the Court noted that, "abandonment by one's own family, though an unpleasant occurrence, remains an unfortunate social and familial dynamic faced in the best families regardless of the religious beliefs and political opinions; as such it does not equate to discrimination."

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Note 50

Gebre-Hiwet, Tewodros v. M.C.I. (F.C., no. IMM-3844-09), Phelan, April 30, 2010; 2010 FC 482.

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Note 51

M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Nadon, Décary, Létourneau, March 5, 2008; 2008 FCA 84, at paragraph 48. Leave to appeal to the Supreme Court of Canada was dismissed without reasons on August 14, 2008 (S.C.C. File no. 32602).

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Note 52

Munderere, ibid., at paragraph 49.

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Note 53

Munderere, ibid., at paragraph 52.

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Note 54

Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (C.A.), per Desjardins J.A. at 723, aff'd Chan (S.C.C.), supra, footnote 4. In Mendoza, Elizabeth Aurora Hauayek v. M.C.I. (F.C.T.D., no. IMM-2997-94), Muldoon, January 24, 1996, at 4: the Court said that rape "is a form of brutality especially utilizable for the humiliation and brutalization of women. It is not to be treated lightly". In Arguello-Garcia, Jacobo Ignacio v. M.E.I. (F.C.T.D., no. 92-A-7335), McKeown, June 23, 1993. Reported: Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.), at 287, sexual abuse was part of the persecution suffered by the male claimant. But see Cortez, supra, footnote 25, where the rape was found not to constitute persecution. See also Chapter 9, section 9.3.3. for further discussion of measures such as beating.

In Iruthayanathar, Joseph v. M.C.I. (F.C.T.D., no. IMM-3619-99), Gibson, June 15, 2000, while following Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), (discussed in Chapter 9, section 9.3.3.), the Court determined that beatings in detention, alone, can constitute persecution.

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Note 55

Porto, Javier Cardozo v. M.E.I. (F.C.T.D., no. A-1549-92), Noël, September 3, 1993, at 3.

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Note 56

Munoz, Alfonso La Rotta v. M.C.I. (F.C.T.D., no. IMM-2207-93), Pinard, November 28, 1994, at 3.

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Note 57

Gidoiu, Ion v. S.S.C. (F.C.T.D., no. IMM-2907-94), Wetston, April 6, 1995, at 1.

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Note 58

Antonio, supra, footnote 5, at 11-12, where the offence in question was treason (in the form of espionage and sabotage); Chu, Zheng-Hao v. M.C.I. (F.C.T.D., no. IMM-5159-94), Jerome, January 17, 1996, at 5. See also Singh, Tejinder Pal v. M.C.I. (F.C.T.D., no. IMM-5294-97), Muldoon, December 23, 1997 (supplementary reasons), at paragraphs 9-13.

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Note 59

Cheung, supra, footnote 3, at 324, per Linden J.A.: "the forced sterilization of women is a fundamental violation of basic human rights. It violates Articles 3 and 5 of the United Nations Universal Declaration of Human Rights." With respect to sterilization and abortion, see Chapter 9, section 9.3.7., where the one-child policy in China is discussed.

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Note 60

Chan (S.C.C.), supra, footnote 4, per La Forest J. (dissenting) at 636. The majority in the Supreme Court did not expressly comment on the issue, although Mr. Justice Major appeared to assume that forced sterilization would indeed constitute persecution: see, for example, 658 and 672-673. See also Chan (F.C.A.), supra, footnote 54, per Heald J.A. at 686, and per Mahoney J.A. (dissenting) at 704.

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Note 61

Lai, Quang v. M.E.I. (F.C.T.D., no. IMM-307-93), McKeown, May 20, 1994, at 2.

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Note 62

Zheng, Jin Xia v. M.C.I. (F.C., no. IMM-3121-08), Barnes, March 30, 2009; 2009 FC 327. The Court noted that the RPD erred in finding that the requirement to use an IUD is not persecutory because it arises from a law of general application.

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Note 63

Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.).

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Note 64

Oyarzo v. Canada (Minister of Employment and Immigration), [1982] 2 F.C. 779 (C.A.), at 782, per Heald J. See also Amayo v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 520 (C.A.); and Asadi, Sedigheh v. M.C.I. (F.C.T.D., no. IMM-1921-96), Lutfy, April 18, 1997, at 3. See also Herczeg, Zsolt v. M.C.I. (F.C., no. IMM-5538-06), Mandamin, October 23, 2007; 2007 FC 2000, at paragraph 20.

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Note 65

Ammery, Poone v. S.S.C. (F.C.T.D., no. IMM-5405-93), MacKay, May 11, 1994, at 4. Nejad, supra, footnote 9. See Serwaa, Akua v. M.C.I. (F.C., no. IMM-295-05), Pinard, December 20, 2005; 2005 FC 1653, at paragraph 6, where the Court stated that it seemed that stalking would be included in the definition of persecution, depending on the facts of the case. See also Herczeg, Zsolt v. M.C.I. (F.C., no. IMM-5538-06), Mandamin, October 23, 2007; 2007 FC 2000, at paragraph 20.

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Note 66

Bragagnini-Ore, Gianina Evelyn v. S.S.C. (F.C.T.D., no. IMM-2243-93), Pinard, February 4, 1994, at 2.

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Note 67

Kicheva, Zorka v. M.E.I. (F.C.T.D., no. A-625-92), Denault, December 23, 1993, at 2.

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Note 68

Ling, Che Keung v. M.E.I. (F.C.T.D., no. 92-A-6555), Muldoon, May 20, 1993.

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Note 69

Sulaiman, Hussaine Hassan v. M.C.I. (F.C.T.D., no. IMM-525-94), MacKay, March 22, 1996, at 6-7 and 11‑12.

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Note 70

Namitabar v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 42 (T.D.), at 47; Fathi-Rad, Farideh v. S.S.C. (F.C.T.D., no. IMM-2438-93), McGillis, April 13, 1994, at 4-5. Compare Hazarat, Ghulam v. S.S.C. (F.C.T.D., no. IMM-5496-93), MacKay, November 25, 1994, at 3-4. See the discussion of "Restrictions upon Women" in section 9.3.8.1 of Chapter 9. In S.S.C. v. Namitabar, Parisa (F.C.A., no. A-709-93), Décary, Hugessen, Desjardins, October 28, 1996, the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so." See also Rabbani, Farideh v. M.C.I. (F.C.T.D., no. IMM-2032-96), McGillis, June 3, 1997, at 2.

In two recent decisions dealing with a Turkish law banning the wearing of headscarves in government places or buildings, the Court distinguished both Namitabar (F.C.T.D.), 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 paragraph 18; Aykut, Ibrahim v. M.C.I. (F.C., no. IMM-5310-02), Gauthier, March 26, 2004; 2004 FC 466, at paragraph 40. In Daghmash, Mohamed Hussein Moustapha v. M.C.I. (F.C.T.D., no. IMM-4302-97), Lutfy, June 19, 1998, the Court referred to the punishment of lashing and noted that while abhorrent to Canadian sensibilities, one cannot make the sweeping finding that corporal punishment is automatically persecutory. This case should be read with caution in light of the statement by the Supreme Court of Canada in R. v. Smith, [1987] 1 S.C.R. 1045 that: "…some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment, such as the lash, irrespective of the number of lashes imposed…"

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Note 71

Maarouf v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 723 (T.D.), at 738. See also Abdel-Khalik, Fadya Mahmoud v. M.E.I. (F.C.T.D., no. IMM-883-93), Reed, January 31, 1994. Reported: Abdel-Khalik v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 262 (F.C.T.D), at 263. But see Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996.

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Note 72

Arafa, Mohammed v. M.E.I. (F.C.T.D., no. A-663-92), Gibson, November 3, 1993, at 4-5. As to the possibility that harsh policies on the granting of citizenship, or limitations imposed upon permanent residents, might constitute persecution, see Falberg, Victor v. M.C.I. (F.C.T.D., no. IMM-328-94), Richard, April 19, 1995, at 4.

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Note 73

Cheung, supra, footnote 3, at 323; Chan (F.C.A.), supra, footnote 54, at 688, per Heald J.A.; Lai, supra, footnote 61, at 3.

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Note 74

Lin, Qu Liang v. M.E.I. (F.C.A., no. 93-A-142), Rouleau, July 20, 1993. Reported: Lin v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 208 (F.C.T.D.), at 211.

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Note 75

Xie, Sheng v. M.E.I. (F.C.T.D., no. A-1573-92), Rothstein, March 3, 1994, at 5-6. Similarly, in Soto, Marie Marcelina Troncoso v. M.C.I. (F.C.T.D., no. IMM-3734-01), Tremblay-Lamer, July 10, 2002; 2002 FCT 768, the Court held that it is not acceptable to suggest that a visually impaired person, who is trained to use a guide dog, should not bring her guide dog to work in order to find employment.

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Note 76

He, Shao Mei v. M.E.I. (F.C.T.D., no. IMM-3024-93), Simpson, June 1, 1994. Reported: He v. Canada (Minister of Employment and Immigration) (1994), 25 Imm. L.R. (2d) 128 (F.C.T.D.). In contrast, see Vaamonde Wulff, Monica Maria v. M.C.I. (F.C., no. IMM-4292-05), Rouleau, June 9, 2006; 2006 FC 725, at paragraph 23, where the Court held that the claimant's argument "that she would not be able to resume her teaching job is not sufficient to say that she is unemployable, given her training and work history [in a number of other jobs]".

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Note 77

Ramirez, Rosa Etelvina v. S.G.C. (F.C.T.D., no. IMM-1192-94), Rouleau, December 9, 1994, at 5. See also Chen, supra, footnote 7, at 4.

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Note 78

Lerer, Iakov v. M.C.I. (F.C.T.D., no. IMM-7438-93), Cullen, January 5, 1995, at 5-6.

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Note 79

Sinnathamby, Jayasrikanthan v. M.E.I. (F.C.T.D., no. IMM-179-93), Noël, November 2, 1993. Reported: Sinnathamby v. Canada (Minister of Employment and Immigration) (1993), 23 Imm. L.R. (2d) 32 (F.C.T.D.) at 36. See also: Mortera, Senando Layson v. M.E.I. (F.C.T.D., no. A-1084-92), McKeown, December 8, 1993; Vasudevan, Prakash v. S.S.C. (F.C.T.D., no. IMM-81-94), Gibson, July 11, 1994; Gnanam, Ulakanayaki v. M.E.I. (F.C.T.D., no. IMM-2165-93), Simpson, August 31, 1994 (reasons signed March 31, 1995), at 2 and 4; Sivapoosam, Sivakumar v. M.C.I. (F.C.T.D., no. IMM-2674-95), Reed, June 19, 1996, at 4-5; and Srithar, Suntharalingam v. M.C.I. (F.C.T.D., no. IMM-158-97), Tremblay-Lamer, October 10, 1997, at 4-5 (extortion by corrupt military personnel).

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Note 80

Cheung, supra, footnote 3, at 325.

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Note 81

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.).

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Note 82

Thathaal, Sabir Hussain v. S.S.C. (F.C.T.D., no. A-1644-92), McKeown, December 15, 1993, at 2. Appeal to the Federal Court of Appeal dismissed April 16, 1996 (F.C.A., no. A-724-93).

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Note 83

Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60 (T.D.), at 65.

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Note 84

Frid, Mickael v. M.C.I. (F.C.T.D., no. IMM-6694-93), Rothstein, December 15, 1994, at 3.

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Note 85

Igumnov, Sergei v. M.C.I. (F.C.T.D., no. IMM-6993-93), Rouleau, December 16, 1994, at 3-5. See also Gutkovski, supra, footnote 17, at 2 and 4.

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Note 86

Kassatkine, Serguei v. M.C.I. (F.C.T.D., no. IMM-978-95), Muldoon, August 20, 1996, at 4. And see Kazkan, Shahrokh Saeedi v. M.C.I. (F.C.T.D., no. IMM-1313-96), Rothstein, March 20, 1997.

Similarly, in BC 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, supra, footnote 61, at paragraph 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, supra, footnote 68. See also the discussion under "Restrictions upon Women" in Chapter 9, section 9.3.8.1.

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Note 87

Chen, Shun Guan v. M.C.I. (F.C.T.D., no. IMM-1433-96), Lutfy, January 31, 1997, at 2-3, citing the UNHCR Handbook, paragraph 72.

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Note 88

Lin, supra, footnote 74, at 211.

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Note 89

Abouhalima, Sherif v. M.C.I. (F.C.T.D., no. IMM-835-97), Gibson, January 30, 1998. However, in Murugamoorthy, Rajarani v. M.C.I. (F.C., no. IMM-4706-02), O'Reilly, September 29, 2003; 2003 FC 1114, at paragraph 6, 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 paragraph 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.

In Abu El Hof, Nimber v. M.C.I. (F.C., no. IMM-1494-05), von Finckenstein, November 8, 2005; 2005 FC 1515, the Court upheld as reasonable the RPD's conclusion that the claimant's two short detentions and interrogation, although humiliating, could be viewed as necessary security measures, given the heightened security in Israel at the time. See also chapter 9, section 9.3.3.

Return to note 89 referrer

Note 90

M.C.I. v. Lin, Chen (F.C.A., no. A-3-01) Desjardins, Décary, Sexton, October 18, 2001. See also Zhu, Long Wei v. M.C.I. (F.C.T.D., no. IMM-2746-00) Muldoon, August 13, 2001.

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Note 91

In Zheng, Jin Dong v. M.C.I. (F.C.T.D., no. IMM-2415-01), Martineau, April 19, 2002; 2002 FCT 448, the basis for this argument was that minors could not consent to being trafficked. The Court upheld the CRDD's decision, where the panel assessed the issue of consent with regard to this particular minor claimant, relying upon Xiao, Mei Feng v. M.C.I., (F.C.T.D., no. IMM- 953-00), Muldoon, March 16, 2002; 2001 FCT 195.

Return to note 91 referrer

Note 92

Although the Court stated that the issue was not determinative in this case, in M.C.I. v. Hamdan, Amneh (F.C., no. IMM-7723-04), Gauthier, March 6, 2006; 2006 FC 290, at paragraphs 22-23, the Court commented that the Universal Declaration of Human Rights "is only a declaratory instrument" and that article 16 "deals with the right not to have limitations based on race, nationality or religion imposed on one's right to marry and to found a family". The Court agreed with the applicant Minister that it did not "per se create a positive obligation on a State to set up sponsorship processes or to adopt legislation that facilitates the entry of a foreign spouse on its territory."

Return to note 92 referrer

Note 93

Marshall, Matin v. M.C.I. (F.C., no. IMM-3638-07), O'Keefe, August 14, 2008; 2008 FC 946.

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Note 94

Treskiba, Anatoli Benilov v. M.C.I. (F.C., no. IMM-1999-08), Pinard, January 13, 2009; 2009 FC 15.

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