4. GROUNDS OF PERSECUTION
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.Note 1
It is for the Refugee Division to determine the ground, if any, applicable to the claimant's fear of persecution.Note 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.Note 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.Note 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.Note 5
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.Note 6
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.Note 7 According to the Handbook this ground may overlap with race.
The Court in Hanukashvili,Note 8 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.
Persecution by reason of a claimant's religion may take many forms.Note 9 Freedom of religion includes the right to manifest the religion in public, or private, in teaching, practice, worship and observance.Note 10 In the context of claims made by Chinese Christians, the Federal Court has rejected the proposition that a claimant's religious needs can be met in a state sanctioned church. The RPD must assess a claimant's reason for not wishing to attend a state sponsored church, namely that the state sanctioned church is beholden to government, whereas the underground church places God first. It is not up to the panel to determine how and where a claimant should practice his or her faith.Note 11 Religion itself can take different manifestations.Note 12 As is the case with the other Convention refugee grounds, it is the perception of the persecutor that is relevant.Note 13
The Supreme Court of Canada, in the context of a Charter case involving freedom of religion, defined religion as follows:
Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual's spiritual faith and integrally linked to one's definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.Note 14
The Federal Court Trial Division in KassatkineNote 15 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.Note 16
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 18.104.22.168.
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 La Forest 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.Note 17
The Court further indicated that the tests proposed in Mayers,Note 18 Cheung,Note 19 and Matter of AcostaNote 20 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;Note 21 and
- groups associated by a former voluntary status, unalterable due to its historical permanence.Note 22
The Court went on to state:
The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation,Note 23 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.Note 24
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.Note 25
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.Note 26 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.Note 27 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.Note 28
Subsequent to the Ward decision, the Court of Appeal in ChanNote 29 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 CanadaNote 30 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).Note 31 The majority did not address the issue of particular social group or whether there was an applicable ground in this case.Note 32 The dissenting judgment by Mr. Justice La Forest, 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 La Forest (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."Note 33 The paramount consideration in determining a particular social group is the "general underlying themes of the defence of human rights and anti-discrimination."Note 34
- 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.Note 35
- 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 La Forest 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."Note 36
Some examples of particular social groups identified by the jurisprudence are as follows:
- the family;Note 37
- homosexuals (sexual orientation);Note 38
- trade unions;Note 39
- the poor?;Note 40
- wealthy persons or landlords were found by the Trial Division not to be particular social groups.Note 41 The Court focused on the fact that these groups were no longer being persecuted although they had been in the past.Note 42
- women subject to domestic abuse;Note 43
- women forced into marriage without their consent;Note 44
- 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.Note 45
- women subject to circumcision;Note 46
- persons subject to forced sterilization;Note 47
- children of police officers who are anti-terrorist supporters;Note 48
- former fellow municipal employees terrified and terrorized by what they know about the ruthless, criminal mayor;Note 49
- educated women;Note 50
- "law abiding citizens" was held not to be a particular social group;Note 51
- persons suffering from mental illness.Note 52 In Oh,Note 53 the minor claimant was found to be a member of a particular social group, "children of the mentally ill". On the same reasoning, it could include physical illness.Note 54
- "abandoned children."Note 55
4.6. POLITICAL OPINION
A broad and general interpretation of political opinion is "any opinion on any matter in which the machinery of stateNote 56, government, and policy may be engaged".Note 57 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."Note 58 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.Note 59
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."Note 60 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?Note 61
The claimant does not have to belong to a political partyNote 62 nor does the claimant have to belong to a group that has an official title, office or statusNote 63 nor does the claimant have to have a high-profile within a political partyNote 64 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.Note 65
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 22.214.171.124.
In Colmenares,Note 66 the Court held that the law does not require a victim of politically motivated persecution to necessarily abandon his commitment to political activism in order to live safely in his country.
4.7. VICTIMS OF CRIMINALITY AND NEXUS TO GROUNDS
In a number of cases, the Trial Division has held that victims of crime, corruptionNote 67 or vendettasNote 68 generally cannot establish a link between their fear of persecution and one of the five grounds in the definition.Note 69
However, these cases must be read with caution in light of the Federal Court of Appeal decision in Klinko,Note 70 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?
The Court found that given the widespread government corruption in the Ukraine ("where the corrupt elements so permeate the government as to be part of its very fabric"), the claimant's denunciation of the existing corruption constituted an expression of political opinion. In general, however, an opinion expressed in opposition to a criminal organization will not provide a nexus on the basis of political opinion unless the disagreement is rooted in political conviction.Note 71 Similarly, opposition to corruption or criminality is not a perceived political opinion unless it can be seen to challenge the state apparatus.Note 72
A claimant's exposure of corruption or opposition to crime will not generally place him or her in a particular social group.Note 73 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.Note 74 Persons who fear becoming targets of crime because they are perceived to have wealth have been found by the Federal Court not to be members of a particular social group.Note 75 The Court reasoned that as a group, people who are perceived to be wealthy are not marginalized; rather they are more frequent targets of criminal activity. The perception of wealth is insufficient to sustain the position that persons returning from abroad constitute a social group. It is clear from Ward that protection afforded under the Convention is intended to provide protection on the grounds of human rights and anti-discrimination considerations and not general criminality.
In Soimin,Note 76 a Haitian woman alleged a fear of rape based on her membership in a particular social group, "women in Haiti who may be targeted by criminals on the basis of her sex." The Court upheld the RPD finding that the violence feared by the claimant was a result of widespread generalized criminality in Haiti and not discriminatory targeting of women in particular. The harm feared was criminal in nature and had no nexus to the Convention refugee definition. However, more recently the Court arrived at a different conclusion in DezameauNote 77 and Josile,Note 78 also claims made by Haitian women claiming a fear of persecution in the form of sexual violence. In these cases, the Court cited the principle in Ward that "gender" can provide the basis for a particular social group. The Court also cited jurisprudence from the Supreme Court of Canada in support of the proposition that rape and other forms of sexual assault are crimes grounded in the status of women in society.Note 79
In Dezameau, the Court found that the error of the Board was to use its finding of a widespread risk of violence in Haitian society to rebut the assertion that there is a nexus between the applicant's social group and the risk of rape. A finding of generality does not prohibit a finding of persecution on the basis of one of the Convention grounds. This is explicitly set out in the IRB's Guideline 4. Based on a review of Canadian law and the documentary evidence, the Court in Josile concluded that the notion that rape is an act of violence faced generally by all Haitians is untenable; rather the risk of rape was grounded in the applicant's membership in a particular social group, that of Haitian women.