CHAPTER 4 - GROUNDS OF PERSECUTION

Previous | Table of Contents | Next

TABLE OF CONTENTS

  1. 4.1. GENERALLY
  2. 4.2. RACE
  3. 4.3. NATIONALITY
  4. 4.4. RELIGION
  5. 4.5. PARTICULAR SOCIAL GROUP
  6. 4.6. POLITICAL OPINION
  7. 4.7. VICTIMS OF CRIMINALITY AND NEXUS TO GROUNDS
  8. TABLE OF CASES

4. GROUNDS OF PERSECUTION

4.1. GENERALLY

The definition of a Convention refugee states that a claimant's fear of persecution must be "by reason of" one of the five enumerated grounds - that is race, religion, nationality, membership in a particular social group and political opinion. There must be a link between the fear of persecution and one of the five grounds.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

4.2. RACE

There is currently no Federal Court jurisprudence that provides a detailed analysis of this ground of persecution. Reference should be made to the UNHCR Handbook, at paragraphs 68 to 70, for a description of this ground. According to the Handbook, "race … has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as 'races' in the common usage." (paragraph 68)

The Court of Appeal has said that where race is one of the defining elements of a group to which the claimant belongs (and fears persecution on account of) then the ground of persecution is race. It is not necessary to look at other grounds.Note 6

4.3. NATIONALITY

This ground is discussed in the UNHCR Handbook at paragraphs 74 to 76. The Handbook points out that "nationality" in this case encompasses not only "citizenship" but it refers also to ethnic or linguistic groups.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.

4.4. RELIGION

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 9.3.8.2.

The UNHCR Handbook can be referred to at paragraphs 71 to 73.

4.5. PARTICULAR SOCIAL GROUP

The Supreme Court of Canada in Ward provided an interpretative foundation for the meaning of the ground of "membership in a particular social group". Mr. Justice 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:

  1. Groups defined by an innate or unchangeable characteristic;
  2. 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
  3. 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:

  1. 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
  2. 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
  3. 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:

  1. the family;Note 37
  2. homosexuals (sexual orientation);Note 38
  3. trade unions;Note 39
  4. the poor?;Note 40
  5. 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
  6. women subject to domestic abuse;Note 43
  7. women forced into marriage without their consent;Note 44
  8. 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
  9. women subject to circumcision;Note 46
  10. persons subject to forced sterilization;Note 47
  11. children of police officers who are anti-terrorist supporters;Note 48
  12. former fellow municipal employees terrified and terrorized by what they know about the ruthless, criminal mayor;Note 49
  13. educated women;Note 50
  14. "law abiding citizens" was held not to be a particular social group;Note 51
  15. 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
  16. "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 9.3.8.1.

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.

TABLE OF CASES

  1. A.B. v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-3522-05), Barnes, April 5, 2006; 2006 FC 444
  2. Adewumi, Adegboyega Oluseyi v. M.C.I. (F.C.T.D., no. IMM-1276-01), Dawson, March 7, 2002; 2002FCT 258
  3. Aguirre Garcia, Marco Antonio v. M.C.I. (F.C., no. IMM-3392-05), Lutfy, May 29, 2006; 2006 FC 645
  4. Ajayi, Olushola Olayin v. M.C.I. (F.C., no. IMM-5146-06), Martineau, June 5, 2007; 2007 FC 594
  5. Al-Busaidy, Talal Ali Said v. M.E.I. (F.C.A., no. A-46-91), Heald, Hugessen, Stone, January 17, 1992. Reported:  Al-Busaidy v. Canada (Minister of Employment and Immigration) (1992), 16 Imm. L.R. (2d) 119 (F.C.A.)
  6. 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.)
  7. Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.)
  8. Armson, Joseph Kaku v. M.E.I. (F.C.A., no. A-313-88), Heald, Mahoney, Desjardins, September 5, 1989. Reported:  Armson v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 150 (F.C.A.)
  9. Asghar, Imran Mohammad v. M.C.I. (F.C., no. IMM-8239-04), Blanchard, May 31, 2005; 2005 FC 768
  10. Badran, Housam v. M.C.I. (F.C.T.D., no. IMM-2472-95), McKeown, March 29, 1996
  11. Barrantes, Rodolfo v. M.C.I. (F.C., no. IMM-1142-04), Harrington, April 15, 2005; 2005 FC 518
  12. Bediako, Isaac v. S.G.C. (F.C.T.D., no. IMM-2701-94), Gibson, February 22, 1995
  13. Berrueta, Jesus Alberto Arzola v. M.C.I. (F.C.T.D., no. IMM-2303-95), Wetston, March 21, 1996
  14. Bhowmick, Sankar v. M.C.I. (F.C.T.D., no. IMM-3889-94), Tremblay-Lamer, May 1, 1995
  15. Bohorquez, Gabriel Enriquez v. M.C.I. (F.C.T.D., no. IMM-7078-93), McGillis, October 6, 1994
  16. Calero, Fernando Alejandro (Alejandeo) v. M.E.I. (F.C.T.D., no. IMM-3396-93), Wetston, August 8, 1994
  17. Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (T.D.)
  18. Cen v. Canada (Minister of Citizenship and Immigration), [1996] 1 F.C. 310 (T.D.)
  19. Chabira, Brahim v. M.E.I. (F.C.T.D., no. IMM-3165-93), Denault, February 2, 1994. Reported:  Chabira v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 75 (F.C.T.D.)
  20. Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (C.A.)
  21. Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593
  22. Chekhovskiy, Alexey v. M.C.I. (F.C., no. IMM-5086-08), de Montigny, September 25, 2009; 2009 FC 970
  23. Chen, Yu Jing v. M.C.I. (F.C., no. IMM-3627-09), Mosley, March 5, 2010; 2010 FC 258
  24. Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.)
  25. Cius, Ligene v. M.C.I. (F.C., no. IMM-406-07), Beaudry, January 7, 2008; 2008 FC 1
  26. Colmenares, Jimmy Sinohe Pimentel v. M.C.I. (F.C., no. IMM-5417-05), Barnes, June 14, 2006, 2006 FC 749
  27. Cutuli, Raul Horacio v. M.E.I. (F.C.T.D., no. IMM-36-93), Wetston, May 25, 1994
  28. De Arce, Rita Gatica v. M.C.I. (F.C.T.D., no. IMM-5237-94), Jerome, November 3, 1995. Reported:  De Arce v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 74 (F.C.T.D.)
  29. Dezameau, Elmancia v. M.C.I. (F.C. no., IMM-4396-09), Pinard, May 27, 2010; 2010 FC 559
  30. Diamanama, Nsimba v. M.C.I. (F.C.T.D., no. IMM-1808-95), Reed, January 30, 1996
  31. 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.)
  32. Étienne, Jacques v. M.C.I. (F.C., no. IMM-2771-06), Shore, January 25, 2007; 2007 FC 64
  33. Femenia, Guillermo v. M.C.I. (F.C.T.D., no. IMM-3852-94), Simpson, October 30, 1995
  34. Fernandez De La Torre, Mario Guillermo v. M.C.I. (F.C.T.D., no. IMM-3787-00), McKeown, May 9, 2001
  35. Fosu, Monsieur Kwaku v. M.E.I. (F.C.T.D., no. A-35-93), Denault, November 16, 1994. Reported:  Fosu v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 95 (F.C.T.D.)
  36. Fouchong, Donna Hazel v. S.S.C. (F.C.T.D., no. IMM-7603-93), MacKay, November 18, 1994. Reported:  Fouchong v. Canada (Secretary of State) (1994), 26 Imm. L.R. (2d) 200 (F.C.T.D.)
  37. Gomez, José Luis Torres v. M.C.I. (F.C.T.D., no. IMM-1826-98), Pinard, April 29, 1999
  38. Gomez, Mario Alonso Martinez v. M.C.I. (F.C.T.D., no. IMM-3785-97), Richard, June 23, 1998
  39. Gomez-Rejon, Bili v. M.E.I. (F.C.T.D., no. IMM-470-93), Joyal, November 25, 1994
  40. Granada, Armando Ramirez v. M.C.I. (F.C., no. IMM-83-04), Martineau, December 21, 2004; 2004 FC 1766
  41. Hamaisa, Basem v. M.C.I. (F.C., no. IMM-1031-09), Near, Oct.14, 2009; 2009 FC 997
  42. Hanukashvili, Valeri  v. M.C.I. (F.C.T.D., no. IMM-1732-96), Pinard, March 27, 1997
  43. Hazarat, Ghulam v. S.S.C. (F.C.T.D., no. IMM-5496-93), MacKay, November 25, 1994
  44. Hilo, Hamdi v. M.E.I. (F.C.A., no. A-260-90), Heald, Stone, Linden, March 15, 1991. Reported:  Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.)
  45. Inzunza Orellana, Ricardo Andres v. M.E.I. (F.C.A., no. A-9-79), Heald, Ryan, Kelly, July 25, 1979. Reported:  Inzunza v. Canada (Minister of Employment and Immigration) (1979), 103 D.L.R. (3d) 105 (F.C.A.)
  46. Jasiel, Tadeusz v. M.C.I. (F.C., no. IMM-564-05), Teitelbaum, September 13, 2005; 2005 FC 1234
  47. Jasim, Fawzi Abdulrahm v. M.C.I., (F.C., no. IMM-3838-02), Russell, September 2, 2003; 2003 FC 1017
  48. Jean, Leonie Laurore v. M.C.I. (F.C., no. IMM-5860-09), Shore, June 22, 2010; 2010 FC 674
  49. Josile, Duleine v. M.C.I. (F.C., no. IMM-3623-10, Martineau, January 17, 2011; 2011 FC 39
  50. Kang, Hardip Kaur v. M.C.I. (F.C., no. IMM-775-05), Martineau, August 17, 2005; 2005 FC 1128
  51. Karpounin, Maxim Nikolajevitsh v. M.E.I. (F.C.T.D., no. IMM-7368-93), Jerome, March 10, 1995
  52. Kassatkine, Serguei v. M.C.I. (F.C.T.D., no. IMM-978-95), Muldoon, August 20, 1996
  53. Katwaru, Shivanand Kumar v. M.C.I. (F.C., no. IMM-3368-06), Teitelbaum, June 8, 2007; 2007 FC 612
  54. Klinko, Alexander v. M.C.I. (F.C.A., no. A-321-98), Létourneau, Noël, Malone, February 22, 2000
  55. Klinko, Alexander v. M.C.I. (F.C.T.D., no. IMM-2511-97), Rothstein, April 30, 1998
  56. Kouril, Zdenek v. M.C.I. (F.C.T.D., no. IMM-2627-02), Pinard, June 13, 2003; 2003 FCT 728
  57. Kwong, Kam Wang (Kwong, Kum Wun) v. M.C.I. (F.C.T.D., no. IMM-3464-94), Cullen, May 1, 1995
  58. La Hoz, Carmen Maria Zoeger v. M.C.I. and Magan, Miguel Luis Contreras v. M.C.I. (F.C., no. IMM-5239-04), Blanchard, May 30, 2005; 2005 FC 762
  59. Lai, Cheong Sing v. M.C.I. (F.C.A., no. A-191-04), Malone, Richard, Sharlow, April 11, 2005; 2005 FCA 125
  60. Lai, Kai Ming v. M.E.I. (F.C.A., no. A-792-88), Marceau, Stone, Desjardins, September 18, 1989. Reported:  Lai v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.)
  61. Lara, Benjamin Zuniga v. M.C.I. (F.C.T.D., no. IMM-438-98), Evans, February 26, 1999
  62. Larenas, Alberto Palencia v. M.C.I. (F.C., no. IMM-2084-05), Shore, February 14, 2006; 2006 FC 159
  63. Leon, Johnny Edgar Orellana v. M.C.I. (F.C.T.D., no. IMM-3520-94), Jerome, September 19, 1995
  64. Liang, Xiao Dong v. M.C.I. (F.C., no. IMM-1286-03), Layden-Stevenson, December 19, 2003; 2003 FC 1501
  65. Liaqat, Mohammad v. M.C.I. (F.C., no. IMM-9550-04), Teitelbaum, June 23, 2005; 2005 FC 893
  66. Lin: M.C.I. v. Lin, Chen (F.C.A., no. A-3-01), Desjardins, Décary, Sexton, October 18, 2001
  67. Liu, Ying Yang v. M.C.I. (F.C.T.D., no. IMM-4316-94), Reed, May 16, 1995
  68. Macias, Laura Mena v. M.C.I. (F.C., no. IMM-1040-04), Martineau, December 16, 2004; 2004 FC 1749
  69. Manrique Galvan, Edgar Jacob v. M.C.I. (F.C.T.D., no. IMM-304-99), Lemieux, April 7, 2000
  70. Marincas, Dan v. M.E.I. (F.C.T.D., no. IMM-5737-93), Tremblay-Lamer, August 23, 1994
  71. Martinez Menendez, Mynor v. M.C.I. (F.C., no. IMM-3830-09), Boivin, February 25, 2010; 2010 FC 221
  72. Marvin, Mejia Espinoza v. M.C.I. (F.C.T.D., no. IMM-5033-93), Joyal, January 10, 1995
  73. Mason, Rawlson v. S.S.C. (F.C.T.D., no. IMM-2503-94), Simpson, May 25, 1995
  74. Matter of Acosta, Interim Decision 2986, 1985 WL 56042
  75. Mayers:  Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154 (C.A.)
  76. Mehrabani, Paryoosh Solhjou v. M.C.I. (F.C.T.D., no. IMM-1798-97), Rothstein, April 3, 1998
  77. Montchak, Roman v. M.C.I. (F.C.T.D., no. IMM-3068-98), Evans, July 7, 1999
  78. Mortera, Senando Layson v. M.E.I. (F.C.T.D., no. A-1084-92), McKeown, December 8, 1993
  79. Mousavi-Samani, Nasrin v. M.C.I. (F.C.T.D., no. IMM-4674-96), Heald, September 30, 1997
  80. Mu, Pei Hua  v. M.C.I. (F.C., no. IMM-9408-04), Harrington, November 17, 2004; 2004 FC 1613
  81. Munoz, Tarquino Oswaldo Padron v. M.C.I. (F.C.T.D., no. IMM-1884-95), McKeown, February 22, 1996
  82. Murillo Garcia, Orlando Danilo v. M.C.I. (F.C.T.D., no. IMM-1792-98), Tremblay-Lamer, March 4, 1999
  83. Musakanda, Tavonga v. M.C.I. (F.C., no. IMM-6250-06), O'Keefe, December 11, 2007; 2007 FC 1300
  84. Mwakotbe, Sarah Gideon v. M.C.I. (F.C., no. IMM-6809-05), O'Keefe, October 16, 2006; 2006 FC 1227
  85. Narvaez v. Canada (Minister of Citizenship and Immigration), [1995] 2 F.C. 55 (T.D.)
  86. Nosakhare, Brown v. M.C.I. (F.C.T.D., no. IMM-5023-00), Tremblay-Lamer, July 6, 2001
  87. Oh: M.C.I. v. Oh, Mi Sook (F.C., no. IMM-5048-08), Pinard, May 22, 2009; 2009 FC 506
  88. Oloyede, Bolaji v. M.C.I. (F.C.T.D., no. IMM-2201-00), McKeown, March 28, 2001
  89. Orelien v. Canada (Minister of Employment and Immigration, [1992] 1 F.C. 592
  90. Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008; 2008 FC 474
  91. Pena, Jose Ramon Alvarado v. M.C.I. (F.C.T.D., no. IMM-5806-99), Evans, August 25, 2000
  92. Pizarro, Claudio Juan Diaz v. M.E.I. (F.C.T.D., no. IMM-2051-93), Gibson, March 11, 1994
  93. Pour, Malek Mohammad Nagmeh Abbas v. M.C.I. (F.C.T.D., no. IMM-3650-95), Gibson, June 6, 1996
  94. Pour-Shariati v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 767 (T.D.)
  95. Prato, Jorge Luis Machado v. M.C.I. (F.C., no. IMM-10670-04), Pinard, August 12, 2005; 2005 FC 1088
  96. R. v. Cook [1998] 2 S.C.R. 597
  97. R. v. Lavalle [1990] 1 S.C.R. 582
  98. R. v. Osolin [1993] 4 S.C.R.595
  99. R. v. Seaboyer [1991] 2 S.C.R. 577
  100. Randhawa, Sarbjit v. M.C.I. (F.C.T.D., no. IMM-2474-97), Campbell, February 2, 1998
  101. Rangel Becerra, Yanira Esthel v. M.C.I. (F.C.T.D., no. IMM-3550-97), Pinard, August 24, 1998
  102. Reul, Jose Alonso Najera v. M.C.I. (F.C.T.D., no. IMM-326-00), Gibson, October 2, 2000
  103. Reynoso, Edith Isabel Guardian v. M.C.I. (F.C.T.D., no. IMM-2110-94), Muldoon, January 29, 1996
  104. Rivero, Omar Ramon v. M.C.I. (F.C.T.D., no. IMM-511-96), Pinard, November 22, 1996
  105. Rodriguez Diaz, Jose Fernando v. M.C.I. (F.C., no. IMM-4652-07), O'Keefe, November 6, 2008
  106. Rodriguez, Ana Maria v. M.C.I. (F.C.T.D., no. IMM-4573-96), Heald, September 26, 1997
  107. Rodriguez, Juan Carlos Rodriguez v. M.E.I. (F.C.T.D., no. IMM-4109-93), Dubé, October 25, 1994
  108. Saiedy, Abbas v. M.C.I. (F.C., no. IMM-9198-04), Gauthier, October 6, 2005; 2005 FC 1367
  109. Salvador (Bucheli), Sandra Elizabeth v. M.C.I. (F.C.T.D., no. IMM-6560-93), Noël, October 27, 1994
  110. Serrano, Roberto Flores v. M.C.I. (F.C.T.D., no. IMM-2787-98), Sharlow, April 27, 1999
  111. Shahiraj, Narender Singh v. M.C.I. (F.C.T.D., no. IMM-3427-00), McKeown, May 9, 2001
  112. Singh, Sarbit v. M.C.I. (F.C., no. IMM-1157-07), Beaudry, October 1, 2007; 2007 FC 978
  113. Sinora, Frensel v. M.E.I. (F.C.T.D., no. 93-A-334), Noël, July 3, 1993
  114. Soberanis, Enrique Samayoa v. M.C.I. (F.C.T.D., no. IMM-401-96), Tremblay-Lamer, October 8, 1996
  115. Soimin, Ruth v. M.C.I. (F.C., no. IMM-3470-08), Lagacé, March 4, 2009; 2009 FC 218
  116. Sopiqoti, Spiro v. M.C.I. (F.C., no. IMM-5640-01), Martineau, January 29, 2003; 2003 FC 95
  117. Suarez, Jairo Arango v. M.C.I. (F.C.T.D., no. IMM-3246-95), Reed, July 29, 1996
  118. Surajnarain, Doodnauth v. M.C.I. (F.C., no. IMM-1309-08), Dawson, October 16, 2008; 2008 FC 1165
  119. Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551; 2004 SCC 47
  120. Tchernilevski, Taras v. M.C.I. (F.C.T.D., no. IMM-5088-94), Noël, June 8, 1995. Reported:  Tchernilevski v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm. L.R. (2d) 67 (F.C.T.D.)
  121. Tomov, Nikolay Haralam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005; 2005 FC 1527
  122. Trujillo Sanchez, Luis Miguel v. M.C.I. (F.C.A., no. A-310-06), Richard, Sharlow, Malone, March 8, 2007; 2007 FCA 99
  123. Valderrama, Liz Garcia v. M.C.I. (F.C.T.D., no. IMM-444-98), Reed, August 5, 1998
  124. Vargas, Maria Cecilia Giraldo v. M.E.I. (F.C.T.D., no. T-1301-92), Wetston,  May 25, 1994
  125. Vassiliev, Anatoli Fedorov v. M.C.I. (F.C.T.D. IMM-3443-96), Muldoon, July 4, 1997
  126. Veeravagu, Uthaya Kumar v. M.E.I. (F.C.A., no. A-630-89), Hugessen, Desjardins, Henry, May 27, 1992
  127. Velasquez, Liliana Erika Jaramillo v. M.C.I. (F.C.T.D., no. IMM-4378-93), Noël, December 21, 1994
  128. Vetoshkin, Nikolay v. M.C.I. (F.C.T.D., no. IMM-4902-94), Rothstein, June 9, 1995
  129. Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60 (T.D.)
  130. Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85
  131. Wilcox, Manuel Jorge Enrique Tataje v. M.E.I. (F.C.T.D., no. A-1282-92), Reed, November 2, 1993
  132. Woods, Kinique Kemira v. M.C.I. (F.C., no. IMM-4863-06), Beaudry, March 26, 2007; 2007 FC 318
  133. Xheko, Aida Siri v. M.C.I. (F.C.T.D., no. IMM-4281-97), Gibson, August 28, 1998
  134. Xiao, Mei Feng v. M.C.I. (F.C.T.D., no. IMM-953-00), Muldoon, March 16, 2001
  135. Yang, Hui Qing v. M.C.I. (F.C.T.D., no. IMM-6057-00), Dubé, September 26, 2001
  136. Yoli, Hernan Dario v. M.C.I. (F.C.T.D., no. IMM-399-02), Rouleau, December 30, 2002; 2002 FCT 1329
  137. Zaidi, Syed Tabish Raza v. M.C.I. (F.C., no. IMM-8779-04), Martineau, August 9, 2005; 2005 FC 1080
  138. Zang, Zhi Jun v. M.C.I. (F.C., no. IMM-369-09), O'Keefe, January 6, 2010; 2010 FC 9
  139. Zhou, Guo Heng v. M.C.I. (F.C., no. IMM-1674-09), de Montigny, November 25, 2009; 2009 FC 1210
  140. Zhu, Qiao Ying v. M.C.I. (F.C., no. IMM-589-08), Zinn, September 23, 2008; 2008 FC 1066
  141. Zhu, Yong Liang v. M.E.I. (F.C.A., no. A-1017-91), MacGuigan, Linden, Robertson, January 28, 1994
  142. Zhu, Yong Qin v. M.C.I. (F.C.T.D., no. IMM-5678-00), Dawson, September 18, 2001

Notes

Note 1

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85 at 732; Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (C.A.), at 689-690 and 692-693. In Gomez, Mario Alonso Martinez v. M.C.I. (F.C.T.D., no. IMM-3785-97), Richard, June 23, 1998, the Court found that the CRDD failed to assess the evidence of police mistreatment of the claimant, a homosexual, in relation to a Convention ground. A determination of the nexus is relevant to the assessment of whether an IFA exists.

Return to note 1 referrer

Note 2

Ward, ibid., at 745. See also the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, September 1979, paragraph 67.

In Singh, Sarbit v. M.C.I. (F.C., no. IMM-1157-07), Beaudry, October 1, 2007; 2007 FC 978, the Court overturned the RPD's decision that since the claimant did not originally make his claim under section 96, but only under subsection 97(1), there were no grounds for the claim for refugee protection under section 96. The Court found that the claim was not solely based on a matter of revenge. The aspect of the claimant's story regarding the terrorist organization Babar Khalsa should have been analyzed under section 96.

 

Return to note 2 referrer

Note 3

Ward, supra, footnote 1, at 747.

Return to note 3 referrer

Note 4

In Narvaez v. Canada (Minister of Citizenship and Immigration), [1995] 2 F.C. 55 (T.D.), at 62, the Court stated:  "While the guidelines are not law, they are authorized by subsection 65(3) of the Act, and intended to be followed unless circumstances are such that a different analysis is appropriate."  See also Fouchong, Donna Hazel v. S.S.C. (F.C.T.D., no. IMM-7603-93), MacKay, November 18, 1994. Reported:  Fouchong v. Canada (Secretary of State) (1994), 26 Imm. L.R. (2d) 200 (F.C.T.D.); Hazarat, Ghulam v. S.S.C. (F.C.T.D., no. IMM-5496-93), MacKay, November 25, 1994; and Pour, Malek Mohammad Nagmeh Abbas v. M.C.I. (F.C.T.D., no. IMM-3650-95), Gibson, June 6, 1996.

Return to note 4 referrer

Note 5

See for example, Zhu, Yong Liang v. M.E.I. (F.C.A., no. A-1017-91), MacGuigan, Linden, Robertson, January 28, 1994, where the Court of Appeal concluded that the CRDD erred in setting up an opposition between friendship and political motivation as the motives of the claimant, who assisted in smuggling two students involved in the Chinese pro-democracy movement to Hong Kong primarily because of friendship. The motives were "mixed" rather than "conflicting". It is sufficient if one of the motives is political. See also Shahiraj, Narender Singh v. M.C.I. (F.C.T.D., no. IMM-3427-00), McKeown, May 9, 2001.

In Katwaru, Shivanand Kumar v. M.C.I. (F.C., no. IMM-3368-06), Teitelbaum, June 8, 2007; 2007 FC 612, the Court rejected the argument that the RPD failed to consider whether the agent of persecution, an Afro-Guyanese school yard bully had mixed motives (i.e. criminal and racial) for attacking the Indo-Guyanese claimant. Since the RPD concluded that there was no evidence that the claimant's persecutor was racially-motivated, there was no basis on which to make a determination that there were mixed motives.

 

Return to note 5 referrer

Note 6

Veeravagu, Uthaya Kumar v. M.E.I. (F.C.A., no. A-630-89), Hugessen, Desjardins, Henry, May 27, 1992, at 2.

Return to note 6 referrer

Note 7

The Supreme Court of Canada pointed out in R. v. Cook [1998] 2 S.C.R. 597, at paragraph 42, that, although the terms "nationality" and "citizenship" are often used as if they were synonymous, the principle of nationality is much broader in scope than the legal status of citizenship.

Return to note 7 referrer

Note 8

Hanukashvili, Valeri  v. M.C.I. (F.C.T.D., no. IMM-1732-96), Pinard, March 27, 1997. Although Israel did not recognize the claimants as having Jewish nationality, they were citizens of Israel and as such the CRDD had properly considered the claims as being against Israel, the country of nationality pursuant to section 2(1)(a)(i) of the Act.

Return to note 8 referrer

Note 9

In Reul, Jose Alonso Najera v. M.C.I. (F.C.T.D., no. IMM-326-00), Gibson, October 2, 2000, the applicants were a husband and wife and their three children. They feared persecution by siblings of the husband, the principal applicant. When the principal applicant's mother refused a blood transfusion and died, the siblings accused the principal applicant of causing her death and threatened him and his family. The principal applicant and his mother were Jehovah's Witnesses. The CRDD found that the fear was based on a family dispute, not on a Convention ground. The Court was satisfied that the applicants had established a subjectively and objectively well-founded fear of persecution in Mexico on the ground of religious belief.

Return to note 9 referrer

Note 10

Fosu, Monsieur Kwaku v. M.E.I. (F.C.T.D., no. A-35-93), Denault, November 16, 1994. Reported:  Fosu v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 95 (F.C.T.D.), at 97, where the Court adopted the UNHCR Handbook's interpretation of freedom of religion. See also Chabira, Brahim v. M.E.I. (F.C.T.D., no. IMM-3165-93), Denault, February 2, 1994. Reported:  Chabira v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 75 (F.C.T.D.), where the claimant was persecuted for offending against his girlfriend's Islamic mores; and Bediako, Isaac v. S.G.C. (F.C.T.D., no. IMM-2701-94), Gibson, February 22, 1995, where the Court deals briefly with the issue of justified restrictions on religious practices. In Mu, Pei Hua  v. M.C.I. (F.C., no. IMM-9408-04), Harrington, November 17, 2004; 2004 FC 1613, the claimant's evidence was that "group" practice is what Falun Gong prescribes for its practitioners. The Court stated that giving public witness is a fundamental part of many religions and that the decision of the Supreme Court of Canada in Syndicat Northcrest (see infra, footnote 14), expands the concept of public religious acts, not restricts it. The specific manner in which an individual gives effect to his/her religious beliefs is a valid consideration. In Saiedy, Abbas v. M.C.I. (F.C., no. IMM-9198-04), Gauthier, October 6, 2005; 2005 FC 1367, The applicant, a citizen of Iran, claimed a fear of persecution based on being a Muslim convert to Christianity. The Court upheld the RPD's finding that regardless of whether he genuinely converted, the applicant's evidence was that he would be discreet about his conversion and would therefore be of no interest to the authorities according to the documentary evidence. However, in Jasim, Fawzi Abdulrahm v. M.C.I., (F.C., no. IMM-3838-02), Russell, September 2, 2003; 2003 FC 1017, the Court stated that the officer's suggestion that the applicant "refrain from proselytizing and practice his faith privately" is not tenable. That is not a choice an individual should have to make. In Zhou, Guo Heng v. M.C.I. (F.C., no. IMM-1674-09), de Montigny, November 25, 2009; 2009 FC 1210, the Court noted that the RPD had erred in equating the possibility of religious persecution with the risk of being raided, arrested or jailed. This understanding was limited and did not take into account the public dimension of religious freedom.

Return to note 10 referrer

Note 11

Zhu, Qiao Ying v. M.C.I. (F.C., no. IMM-589-08), Zinn, September 23, 2008; 2008 FC 1066. See also Zang, Zhi Jun v. M.C.I. (F.C., no. IMM-369-09), O'Keefe, January 6, 2010; 2010 FC 9, and Chen, Yu Jing v. M.C.I. (F.C., no. IMM-3627-09), Mosley, March 5, 2010; 2010 FC 258, which illustrate the same principle.

Return to note 11 referrer

Note 12

For example, in Nosakhare, Brown v. M.C.I. (F.C.T.D., no. IMM-5023-00), Tremblay-Lamer, July 6, 2001, the claimant, who converted to Christianity in 1997, fled Nigeria because he did not want to belong to the Ogboni cult, as his father did. According to the claimant, the cult engages in human sacrifice and cannibalism. The Court concluded that the Board erred in finding there was no nexus. The kidnapping and beating endured by the claimant were acts carried out by a religious group as a result of the religious beliefs of the claimant. However, in Oloyede, Bolaji v. M.C.I. (F.C.T.D., no. IMM-2201-00), McKeown, March 28, 2001, the Court concluded that it was open on the evidence for the Board to determine that the claimant had been subjected to cult criminal activity rather than religious persecution. In this case, the claim was on grounds of membership in a particular social group, namely, children of cult groups who refuse to follow in their fathers' footsteps. The claimant claimed that his life was at risk if he did not join the Vampire cult. The claimant also argued, without success, that he was a Christian and that if he returned to Nigeria he would be forced to engage in cult practices because he would not receive any state protection.

In Ajayi, Olushola Olayin v. M.C.I. (F.C., no. IMM-5146-06), Martineau, June 5, 2007; 2007 FC 594, the claimant alleged that her stepmother wanted to circumcise her and her father wanted to force her to participate in an initiation ritual. She also claimed a fear of supernatural powers and beings. The Court held that it was not patently unreasonable to conclude that the claimant had no objective fear of persecution. A person's fear of magic or witchcraft can be real on a subjective basis, but objectively speaking, the state cannot provide effective protection against magic or witchcraft or against supernatural forces or beings from beyond. The state could concern itself with the actions of those who participate in such rituals but in this case, the claimant testified she did not fear her stepmother or father.

 

Return to note 12 referrer

Note 13

Yang, Hui Qing v. M.C.I. (F.C.T.D., no. IMM-6057-00), Dubé, September 26, 2001. In this case, the claimant feared persecution by the authorities in China due to her adherence to Falun Gong beliefs and practices. The Court held that the CRDD should have found Falun Gong to be partly a religion and partly a particular social group. Applying the reasoning in Ward regarding political opinion, the Court held that if Falun Gong is considered by the government of China to be a religion, then it must be so for the purposes of this claim. A question was certified regarding the scope of the term "religion" used in the Convention refugee definition, however, it appears that no appeal was filed.

Return to note 13 referrer

Note 14

Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551; 2004 SCC 47.

Return to note 14 referrer

Note 15

Kassatkine, Serguei v. M.C.I. (F.C.T.D., no. IMM-978-95), Muldoon, August 20, 1996, at 4.

Return to note 15 referrer

Note 16

See also Syndicat Northcrest, supra, footnote 14, where the Supreme Court of Canada said (at 61) that: "No right, including freedom of religion is absolute."

Return to note 16 referrer

Note 17

Wardsupra, footnote 1, at 739.

Return to note 17 referrer

Note 18

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

Return to note 18 referrer

Note 19

Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.).

Return to note 19 referrer

Note 20

Matter of Acosta, Interim Decision 2986, 1985 WL 56042 (BIA-United States).

Return to note 20 referrer

Note 21

In Yang, the claimant feared persecution by the authorities in China due to her adherence to Falun Gong beliefs and practices. The Court was of the view that Falun Gong would fall under the second category of "social group" in Ward, as members voluntarily associate themselves for reasons so fundamental to their human dignity that they should not be forced to forsake the association. On the other hand, in Manrique Galvan, Edgar Jacob v. M.C.I. (F.C.T.D., no. IMM-304-99), Lemieux, April 7, 2000, the claimant alleged to belong to a particular social group, namely the Emiliano Zapata group, an organization of taxi drivers, which the Refugee Division refused to recognize. After conducting an exhaustive review of the case law on the subject [including Matter of Acosta (Board of Immigration Appeals - United States) and Islam (House of Lords - England)], the Court concluded that the Refugee Division had properly assessed the case law in finding that the social group to which the principal applicant belonged did not correspond to any of the categories established in Ward, in particular the second category, on the ground that the right to work is fundamental but not necessarily the right to be a taxi driver in Mexico City.

Return to note 21 referrer

Note 22

Ward, supra, footnote 1, at 739. In Chekhovskiy, Alexey v. M.C.I. (F.C., no. IMM-5086-08), de Montigny, September 25, 2009; 2009 FC 970, the Court noted that to say that the claimant, as a member of the building contractors was part of a group associated by a former voluntary, unalterable status, would trivialize the notion of a particularly social group, incompatible with the analogous grounds approach developed in the context of anti-discrimination law, and inimical to the whole purpose of Convention refugee protection.

Return to note 22 referrer

Note 23

In Jean, Leonie Laurore v. M.C.I. (F.C., no. IMM-5860-09), Shore, June 22, 2010; 2010 FC 674, the Court noted that the age of a person is not unchangeable. (paragraphs 38-44). But see Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008; 2008 FC 474, where the Court upheld a decision of the RPD that found the claimant, "an abandoned child", to be a member of a particular social group.

Return to note 23 referrer

Note 24

Ward, supra, footnote 1, at 739.

Return to note 24 referrer

Note 25

Ward, supra, footnote 1, at 738. Thus the Court held, at 745, that an association, such as the Irish National Liberation Army (INLA), that is committed to attaining political goals by any means, including violence, does not constitute a particular social group, as requiring its members to abandon this objective "does not amount to an abdication of their human dignity."

In Trujillo Sanchez, Luis Miguel v. M.C.I. (F.C.A., no. A-310-06), Richard, Sharlow, Malone, March 8, 2007; 2007 FCA 99, the claimant was employed by the government as an engineer. He also ran a side business that reported signage by-laws violations to the Bogota city authorities. As a result of this business, he was threatened and abducted twice by the FARC which had demanded that he cease reporting violations. The Federal Court of Appeal agreed that the claimant had an alternative that would eliminate future risk of harm; he could choose to cease operating his side business. The Court went on to state that the claimant's "freedom to profess his religion, give expression to an immutable personal characteristic, express his political views, etc., was not affected by abandoning his side business."

 

Return to note 25 referrer

Note 26

Ward, supra, footnote 1, at 738-739. Thus the Court held, at 745, that although the claimant's membership in INLA placed him in the circumstances that led to his fear, the fear itself was based on his action, not on his affiliation.

Return to note 26 referrer

Note 27

Ward, supra, footnote 1, at 729-733. In Mason, Rawlson v. S.S.C. (F.C.T.D., no. IMM-2503-94), Simpson, May 25, 1995, the claimant feared being killed by drug "thugs" because he opposed the drug trade, and informed and testified against his brother in criminal proceedings; the Court held that "persons of high moral fibre who opposed the drug trade" were not a particular social group as this was not a pre-existing group whose members were subsequently persecuted. See also footnotes 51 and 73; and Marvin, Mejia Espinoza v. M.C.I. (F.C.T.D., no. IMM-5033-93), Joyal, January 10, 1995, where the Court found, in the circumstances of that case, that reporting drug traffickers to the Costa Rican authorities was not an expression of political opinion. For further discussion of victims of criminality and nexus to the grounds, see Chapter 4, section 4.7. See also Manrique Galvan, supra, footnote 21, where the Court noted that the concept of particular social group requires more than a mere association of individuals who have come together because of their victimization.

Return to note 27 referrer

Note 28

In M.C.I. v. Lin, Chen (F.C.A., no. A-3-01), Desjardins, Décary, Sexton, October 18, 2001, the Court, in answer to a certified question, held that the CRDD erred in law when it found that the minor claimant had a well-founded fear of persecution on the grounds that he was a member of a particular social group, "minor child of Chinese family who is expected to provide support for other family members". There was no evidence to support the CRDD's finding that the named group was targeted for persecution by parents or other agents of persecution. The claimant's fear of persecution was not because he was under 18 and expected to provide support for his family. His fear was directed at the Chinese authorities and stemmed from the method chosen to leave China. See also Xiao, Mei Feng v. M.C.I. (F.C.T.D., no. IMM-953-00), Muldoon, March 16, 2001.

Return to note 28 referrer

Note 29

Chan (C.A.), supra, footnote 1.

Return to note 29 referrer

Note 30

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

Return to note 30 referrer

Note 31

Chan (S.C.C.), ibid., at 672.

Return to note 31 referrer

Note 32

Chan (S.C.C.), supra, footnote 30, at 658 and 672.

Return to note 32 referrer

Note 33

Chan (S.C.C.), supra, footnote 30, at 642.

Return to note 33 referrer

Note 34

Chan (S.C.C.), supra, footnote 30, at 642.

Return to note 34 referrer

Note 35

In Chan (S.C.C.), supra, footnote 30, at 643-644, Mr. Justice La Forest commented that having children can be classified as what one does rather than who one is. In context, however, having children makes a person a parent which is what one is.

Return to note 35 referrer

Note 36

Chan (S.C.C.), supra, footnote 30, at 644-645.

Return to note 36 referrer

Note 37

Al-Busaidy, Talal Ali Said v. M.E.I. (F.C.A., no. A-46-91), Heald, Hugessen, Stone, January 17, 1992. Reported:  Al-Busaidy v. Canada (Minister of Employment and Immigration) (1992), 16 Imm. L.R. (2d) 119 (F.C.A.);  Pour-Shariati v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 767 (T.D.), at 774-775; Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (T.D.). In Calero, Fernando Alejandro (Alejandeo) v. M.E.I. (F.C.T.D., no. IMM-3396-93), Wetston, August 8, 1994, the Court found no nexus for two families fleeing death threats from drug traffickers; but see Velasquez, Liliana Erika Jaramillo v. M.C.I. (F.C.T.D., no. IMM-4378-93), Noël, December 21, 1994, which suggests, possibly, a different conclusion may be warranted.

In Rodriguez, Ana Maria v. M.C.I. (F.C.T.D., no. IMM-4573-96), Heald, September 26, 1997, the claimant was threatened with harm because her husband was involved in the mafia's drug related business. The Court held that the CRDD did not err in holding that the difficulties experienced by family members of those persecuted for non-Convention reasons if those difficulties are solely by reason of their connection with the principal target are not covered by the Convention. This rationale was followed in Klinko, Alexander v. M.C.I. (F.C.T.D., no. IMM-2511-97), Rothstein, April 30, 1998, where the Court held that when the primary victim of persecution does not come within the Convention refugee definition, any derivative Convention refugee claim based on family group cannot be sustained (Klinko was overturned by the Federal Court of Appeal on other grounds:  Klinko, Alexander v. M.C.I. (F.C.A., no. A-321-98), Létourneau, Noël, Malone, February 22, 2000). In Granada, Armando Ramirez v. M.C.I. (F.C., no. IMM-83-04), Martineau, December 21, 2004; 2004 FC 1766, the Court noted that the applicants had to establish that they were targeted for persecution either personally or collectively, that one cannot be deemed to be a refugee only because one has a relative who is being persecuted. In Macias, Laura Mena v. M.C.I. (F.C., no. IMM-1040-04), Martineau, December 16, 2004; 2004 FC 1749, the Court noted that in order to consider immediate family as a particular social group, a claimant must only prove that there is a clear nexus between the persecution that is being levelled against one member of the family and that which is taking place against the claimant. In Tomov, Nikolay Haralam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005; 2005 FC 1527, the applicant, a citizen of Bulgaria, claimed refugee protection based on his membership in his common-law spouse's Roma family and the assault he faced when he was in her company. The Court noted that family is a valid social group for the purposes of seeking protection. Here, there was a sufficient nexus between the Applicant's claim and his wife's persecution. The Board erred in requiring that the Applicant be personally targeted outside of his relationship. See also Asghar, Imran Mohammad v. M.C.I. (F.C., no. IMM-8239-04), Blanchard, May 31, 2005; 2005 FC 768, and Zaidi, Syed Tabish Raza v. M.C.I. (F.C., no. IMM-8779-04), Martineau, August 9, 2005; 2005 FC 1080, for the proposition that derivative refugee claims based on family group cannot be sustained when the primary victim of persecution does not come within the definition of a Convention refugee. With respect to the concept of indirect persecution, see also Chapter 9, section 9.4.

In Musakanda, Tavonga v. M.C.I. (F.C., no. IMM-6250-06), O'Keefe, December 11, 2007; 2007 FC 1300, the RPD rejected the claims of the adult claimants yet found the minor claimants to be Convention refugees. The claims of the adult claimants were based on perceived political opinion while the minor claimants' on the risk of them being recruited by the youth militia in Zimbabwe. There was no evidence before the Board that the family as a unit was being persecuted. The family is a particular social group where there is a nexus between the persecution and the Convention ground.

Return to note 37 referrer

Note 38

Pizarro, Claudio Juan Diaz v. M.E.I. (F.C.T.D., no. IMM-2051-93), Gibson, March 11, 1994, at 3-4; this case applied Ward, supra, footnote 1. See also Gomez-Rejon, Bili v. M.E.I. (F.C.T.D., no. IMM-470-93), Joyal, November 25, 1994; and Tchernilevski, Taras v. M.C.I. (F.C.T.D., no. IMM-5088-94), Noël, June 8, 1995. Reported:  Tchernilevski v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm. L.R. (2d) 67 (F.C.T.D.).

Return to note 38 referrer

Note 39

Rodriguez, Juan Carlos Rodriguez v. M.E.I. (F.C.T.D., no. IMM-4109-93), Dubé, October 25, 1994, at 2 (in obiter).

Return to note 39 referrer

Note 40

In Sinora, Frensel v. M.E.I. (F.C.T.D., no. 93-A-334), Noël, July 3, 1993, Justice Noël noted that "[I]t is important to note that this group [the poor] has been recognized as a social group by the Federal Court of Appeal." Unfortunately, there is no reference for the Court of Appeal decision but Justice Noël may have been referring to Orelien v. Canada (Minister of Employment and Immigration, [1992] 1 F.C. 592, where the Court was dealing with a decision of the credible basis panel. The claim in question was based on membership in the group of "poor and disadvantaged people of Haiti". The argument before the credible basis panel was that all Haitians outside Haiti have a credible basis for claiming to be refugees, not that all Haitians are refugees. The credible basis panel ruled that "it would be absurd to accept the proposition … that all Haitian are refugees, since this would offer international protection to both the victims and the perpetrators of the crimes". The Court agreed that the tribunal misunderstood the argument: "With respect, it is not axiomatic that nationals of a country who have escaped that country may not have a well founded fear of persecution by reason of their nationality should they be returned." However, the Court, per Mahoney J., also noted the following: "I am inclined to agree with [the panel] on this point: there is nothing to distinguish the applicant's claim to be persecuted by reason of membership in that particular social group [the poor and disadvantaged] from their claim to be persecuted by reason of Haitian nationality itself."

In Woods, Kinique Kemira v. M.C.I. (F.C., no. IMM-4863-06), Beaudry, March 26, 2007; 2007 FC 318, the 12-year-old claimant was afraid of returning to her country because she would essentially be abandoned and left to fend for herself on the streets and because the child welfare system in Saint Vincent was inadequate to provide for her needs. The Court held that while the claimant's situation aroused compassion, the fact remained that she did not prove the merits of her claim.

 

Return to note 40 referrer

Note 41

Mortera, Senando Layson v. M.E.I. (F.C.T.D., no. A-1084-92), McKeown, December 8, 1993, at 2. See also Wilcox, Manuel Jorge Enrique Tataje v. M.E.I. (F.C.T.D., no. A-1282-92), Reed, November 2, 1993; Karpounin, Maxim Nikolajevitsh v. M.E.I. (F.C.T.D., no. IMM-7368-93), Jerome, March 10, 1995; Bhowmick, Sankar v. M.C.I. (F.C.T.D., no. IMM-3889-94), Tremblay-Lamer, May 1, 1995; Vetoshkin, Nikolay v. M.C.I. (F.C.T.D., no. IMM-4902-94), Rothstein, June 9, 1995; and Montchak, Roman v. M.C.I. (F.C.T.D., no. IMM-3068-98), Evans, July 7, 1999.

However, in Randhawa, Sarbjit v. M.C.I. (F.C.T.D., no. IMM-2474-97), Campbell, February 2, 1998, it was held that "considering the extensive evidence of persecution of Sikhs in India the CRDD made an erroneous finding of fact in compartmentalizing the [claimant] as a Sikh from the fact that he is a prominent wealthy person", and directed the Board to consider the claim on the basis of membership in the social group of "prominent wealthy Sikhs".

 

Return to note 41 referrer

Note 42

In Ward, supra, footnote 1, at 731, the Court said: "The persecution in the 'Cold War cases' was imposed upon the capitalists not because of their contemporaneous activities but because of their past status as ascribed to them by the Communist leaders."  Thus, in Lai, Kai Ming v. M.E.I. (F.C.A., no. A-792-88), Marceau, Stone, Desjardins, September 18, 1989. Reported:  Lai v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.), at 245-246, the Court implicitly accepted that "persons with capitalist backgrounds" constitute a particular social group in the context of Ch ina. In Karpounin, supra, footnote, 41, however, the Court stated at 4: "it does not necessarily follow that, merely because the historical underpinning of including the use of the term 'particular social group' as found in the Convention, was based on the desire to protect capitalists and independent businessmen fleeing Eastern Bloc persecution during the cold war, should it lead to the conclusion that the [claimant] in this case was persecuted for that very reason."  The CRDD had found that the claimant, an independent businessman, was targeted because of the size of his bank account and not because of his choice of occupation or the state of his conscience. See also Soberanis, Enrique Samayoa v. M.C.I. (F.C.T.D., no. IMM-401-96), Tremblay-Lamer, October 8, 1996, where "small business proprietors victimized by extortionists acting in concert with police authorities" was found not to be a particular social group.

In Étienne, Jacques v. M.C.I. (F.C., no. IMM-2771-06), Shore, January 25, 2007; 2007 FC 64, the Court upheld the RPD's determination that acquiring wealth or winning a lottery does not constitute membership in a particular social group.

 

Return to note 42 referrer

Note 43

In Narvaez, supra, footnote 4, Mr. Justice McKeown referred extensively to Ward, supra, footnote 1 and to the IRB Chairperson's Gender Guidelines in finding "women subject to domestic abuse in Ecuador" to constitute a particular social group; the judgment did not address the issue of whether the group can be defined by the persecution feared. (In Ward, supra, footnote 1, at 729-733, the Court rejected the notion that "particular social group" could be defined solely by the persecution feared, i.e., the common victimization.)  The reasoning in Narvaez, supra, footnote 4, was explicitly adopted in the decision of Diluna, Roselene Edyr Soares v. M.E.I. (F.C.T.D., no. IMM-3201-94), Gibson, March 14, 1995. Reported:  Diluna v. Canada (Minister of Employment and Immigration) (1995), 29 Imm. L.R. (2d) 156 (F.C.T.D.), where the Court held that the CRDD erred in not finding that "women subject to domestic violence in Brazil" constitute a particular social group.

Return to note 43 referrer

Note 44

Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60 (T.D.) , where the Court held that such women have suffered a violation of a basic human right (the right to enter freely into marriage) and would appear to fall within the first category identified in Ward, supra, footnote 1.

Return to note 44 referrer

Note 45

Cen v. Canada (Minister of Citizenship and Immigration), [1996] 1 F.C. 310 (T.D.), at 319, where the Court stated the group "might be" so defined.

Return to note 45 referrer

Note 46

Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.), where the Court implicitly seemed to accept that the claim was grounded.

Return to note 46 referrer

Note 47

Cheung, supra, footnote 19, at 322, ("women in China who have one child and are faced with forced sterilization"). But note Liu, Ying Yang v. M.C.I. (F.C.T.D., no. IMM-4316-94), Reed, May 16, 1995, where the Court found that the claimant had shown no subjective fear of persecution as a result of the threat of sterilization and there was no evidence she objected to the government policy. See also Chan (S.C.C.), supra, footnote 30, at 644-646, where La Forest J. (dissenting) formulates the group under Ward's second category (see section 4.5. of this Chapter), as an association or group resulting from a "common attempt by its members to exercise a fundamental human right" (at 646), namely, "the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children." (at 646). For further discussion of China's one child policy, see Chapter 9, section 9.3.7.

Return to note 47 referrer

Note 48

Badran, Housam v. M.C.I. (F.C.T.D., no. IMM-2472-95), McKeown, March 29, 1996.

Return to note 48 referrer

Note 49

Reynoso, Edith Isabel Guardian v. M.C.I. (F.C.T.D., no. IMM-2110-94), Muldoon, January 29, 1996.  Mr. Justice Muldoon stated that the claimant's group was defined by an innate or unchangeable characteristic;  the Court acknowledged that this characteristic was one acquired later in life.

Return to note 49 referrer

Note 50

   Ali, Shaysta-Ameer v. M.C.I. (F.C.T.D., no. IMM-3404-95), McKeown, October 30, 1996. Reported:  Ali v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 34 (F.C.T.D.) (the country of origin was Afghanistan).

Return to note 50 referrer

Note 51

Serrano, Roberto Flores v. M.C.I. (F.C.T.D., no. IMM-2787-98), Sharlow, April 27, 1999. The Court certified a question on this issue but no appeal was filed.

Return to note 51 referrer

Note 52

In Liaqat, Mohammad v. M.C.I. (F.C., no. IMM-9550-04), Teitelbaum, June 23, 2005; 2005 FC 893, the Applicant had been diagnosed with schizophrenia and depression with psychotic features. In the context of the judicial review of a negative PRRA decision, the Applicant submitted that his mental illness was an innate and unchangeable characteristic, notwithstanding that its severity may fluctuate with treatment. The Minister appeared to concede that the Applicant was a member of a particular social group because of his mental illness and the Court was in agreement. In Jasiel, Tadeusz v. M.C.I. (F.C., no. IMM-564-05), Teitelbaum, September 13, 2005; 2005 FC 1234, the Applicant, a 50-year old citizen of Poland, premised his claim on the basis that he is a severe alcoholic who will relapse if returned to Poland, and be committed to a psychiatric hospital as a result of his condition. The Court agreed with the Board's finding that the Applicant had failed to establish a nexus between the Applicant's alcoholism and the Convention refugee grounds.           

Return to note 52 referrer

Note 53

M.C.I. v. Oh, Mi Sook (F.C., no. IMM-5048-08), Pinard, May 22, 2009; 2009 FC 506.

Return to note 53 referrer

Note 54

In A.B. v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-3522-05), Barnes, April 5, 2006; 2006 FC 444, the RPD accepted that the claimant, whose claim of persecution was premised on the stigma, discrimination and mistreatment of persons who suffer from HIV/AIDS, met the requirement for membership in a particular social group, that is, persons fearing persecution because of an unchangeable characteristic. While a nexus to the definition was accepted, the claim was rejected because it failed to meet other elements of the definition. The judicial review was allowed by the Court, on other issues. In Rodriguez Diaz, Jose Fernando v. M.C.I. (F.C., no. IMM-4652-07), O'Keefe, November 6, 2008, the Court notes that HIV-positive individuals constitute a particular social group.

Return to note 54 referrer

Note 55

Patel, supra, footnote 23. But note that age per se is not an unchangeable characteristic: Jean, supra, footnote 23.

Return to note 55 referrer

Note 56

In Martinez Menendez, Mynor v. M.C.I. (F.C., no. IMM-3830-09), Boivin, February 25, 2010; 2010 FC 221, the Court held it was reasonable for the RPD to conclude that the criminal gangs did not constitute a de facto government and that refusing to pay extortion to them would not be seen as political opinion.

Return to note 56 referrer

Note 57

Ward, supra, footnote 1, at 746. The word "engaged" was interpreted in Femenia, Guillermo v. M.C.I. (F.C.T.D., no. IMM-3852-94), Simpson, October 30, 1995. The claimants asserted that their political opinion was that they opposed the existence of corrupt police and advocated their removal and prosecution. They argued that this was an opinion on a matter "in which the machinery of state, government and policy may be engaged."  Madam Justice Simpson concluded, that the state is "engaged" in the provision of police services, but not in the criminal conduct of corrupt officers. In her view, that was not conduct officially sanctioned, condoned or supported by the state and therefore, the claimants' asserted political opinion did not come within the Ward, supra, footnote 1, characterization of political opinion. The Court of Appeal in Klinko, supra, footnote 37, rejected the approach followed by the Trial Division in Femenia as being too narrow an interpretation of Ward. The Court answered in the affirmative the following certified question:

Does the making of a public complaint about widespread corrupt conduct by customs and police officials to a regional governing authority, and thereafter, the complainant suffering persecution on this account, when the corrupt conduct is not officially sanctioned, condoned or supported by the state, constitute an expression of political opinion as that term is understood in the definition of Convention refugee in subsection 2(1) of the Immigration Act?

See also Berrueta, Jesus Alberto Arzola v. M.C.I. (F.C.T.D., no. IMM-2303-95), Wetston, March 21, 1996, where the Court overturned the CRDD decision on the basis that the CRDD did not suitably analyze the facts to determine the issue of political opinion. With respect to corruption, the Court stated, at 2, that "[c]orruption is prevalent in some countries. To decry corruption, in some cases, is to strike at the core of such governments' authority."  See also Zhu, Yong Qin v. M.C.I. (F.C.T.D., no. IMM-5678-00), Dawson, September 18, 2001.

Return to note 57 referrer

Note 58

Ward, supra, footnote 1, at 746.

Return to note 58 referrer

Note 59

Ward, supra, footnote 1, at 746. In Sopiqoti, Spiro v. M.C.I. (F.C., no. IMM-5640-01), Martineau, January 29, 2003; 2003 FC 95, the Court held that the claimant's statement that he had not had any political involvement and was not familiar with the political ideologies in his country did not exempt the panel from its obligation to consider whether the gestures he had made, such as refusing to fire on pro-democracy demonstrators, were considered to be political activities. Even if the agents of persecution acted out of personal or pecuniary motives, the CRDD had to determine whether the government authority had imputed a political opinion to the claimant.

Return to note 59 referrer

Note 60

Ward, supra, footnote 1, at 747.

Return to note 60 referrer

Note 61

Inzunza Orellana, Ricardo Andres v. M.E.I. (F.C.A., no. A-9-79), Heald, Ryan, Kelly, July 25, 1979. Reported:  Inzunza v. Canada (Minister of Employment and Immigration) (1979), 103 D.L.R. (3d) 105 (F.C.A.), at 109.

Return to note 61 referrer

Note 62

Armson, Joseph Kaku v. M.E.I. (F.C.A., no. A-313-88), Heald, Mahoney, Desjardins, September 5, 1989. Reported:  Armson v. Canada (Minister of Employment and Immigration). (1989), 9 Imm. L.R. (2d) 150 (F.C.A.), at 153.

Return to note 62 referrer

Note 63

Hilo, Hamdi v. M.E.I. (F.C.A., no. A-260-90), Heald, Stone, Linden, March 15, 1991. Reported:  Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.), at 203.

Return to note 63 referrer

Note 64

Surajnarain, Doodnauth v. M.C.I. (F.C., no. IMM-1309-08), Dawson, October 16, 2008; 2008 FC 1165.

Return to note 64 referrer

Note 65

Hilo, ibid., at 202-203 (re charitable group). See also Bohorquez, Gabriel Enriquez v. M.C.I. (F.C.T.D., no. IMM-7078-93), McGillis, October 6, 1994 (re lottery ticket cooperative); Salvador (Bucheli), Sandra Elizabeth v. M.C.I. (F.C.T.D., no. IMM-6560-93), Noël, October 27, 1994 (re witness to crime committed by paramilitary group); Marvin, supra, footnote 27, (re reporting of drug traffickers to authorities); Kwong, Kam Wang (Kwong, Kum Wun) v. M.C.I. (F.C.T.D., no. IMM-3464-94), Cullen, May 1, 1995 (re defiance of one-child policy) - but compare Chan (C.A.), supra, footnote 1, at 693-696, per Heald J.A., and at 721-723, per Desjardins J.A.

In Aguirre Garcia, Marco Antonio v. M.C.I. (F.C., no. IMM-3392-05), Lutfy, May 29, 2006; 2006 FC 645, the claimant alleged that he faced retribution due to his political affiliation. The RPD concluded, however, that the difficulties arose as a result of his allegiance to his friends (who were candidates for the PRI), rather than the party itself, noting that the claimant was not a member of the PRI. The Court upheld the RPD's finding of no nexus.

 

Return to note 65 referrer

Note 66

Colmenares, Jimmy Sinohe Pimentel v. M.C.I. (F.C., no. IMM-5417-05), Barnes, June 14, 2006, 2006 FC 749.

Return to note 66 referrer

Note 67

Leon, Johnny Edgar Orellana v. M.C.I. (F.C.T.D., no. IMM-3520-94), Jerome, September 19, 1995; Calero, supra, footnote 37, where the Court held that victims of organized crime do not constitute a social group;  see also Cutuli, Raul Horacio v. M.E.I. (F.C.T.D., no. IMM-36-93), Wetston, May 25, 1994; Vargas, Maria Cecilia Giraldo v. M.E.I. (F.C.T.D., no. T-1301-92), Wetston, May 25, 1994; Gomez, José Luis Torres v. M.C.I. (F.C.T.D., no. IMM-1826-98), Pinard, April 29, 1999; and Serrano, supra, footnote 49. In Larenas, Alberto Palencia v. M.C.I. (F.C., no. IMM-2084-05), Shore, February 14, 2006; 2006 FC 159, the Court held that the claimants' fear of corrupt union officials resulted from criminality, which did not constitute a fear of persecution based on a Convention ground.

Return to note 67 referrer

Note 68

Rivero, Omar Ramon v. M.C.I. (F.C.T.D., no. IMM-511-96), Pinard, November 22, 1996, where the CRDD was upheld in its finding of no nexus where the claimant was the target of a personal vendetta by a government official. See also Marincas, Dan v. M.E.I. (F.C.T.D., no. IMM-5737-93), Tremblay-Lamer, August 23, 1994;  De Arce, Rita Gatica v. M.C.I. (F.C.T.D., no. IMM-5237-94), Jerome, November 3, 1995. Reported:  De Arce v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 74 (F.C.T.D.); Xheko, Aida Siri v. M.C.I. (F.C.T.D., no. IMM-4281-97), Gibson, August 28, 1998; and Lara, Benjamin Zuniga v. M.C.I. (F.C.T.D., no. IMM-438-98), Evans, February 26, 1999. In Pena, Jose Ramon Alvarado v. M.C.I. (F.C.T.D., no. IMM-5806-99), Evans, August 25, 2000, the claimant's girlfriend (now wife) Ms. Ordonez, was granted refugee status in 1998 on the basis of the domestic abuse she suffered at the hands of Mr. Arnulfo. The claimant alleged that Mr. Arnulfo, a member of a notorious criminal gang, had perpetrated acts of violence against him because of his relationship with Ms. Ordonez. The CRDD concluded that there was no nexus and that the claim was based on a personal vendetta. The Court found that it was reasonably open to the Board to conclude that the cause of the violence against the claimant was the jealousy of a rival for the affections of Ms. Ordonez, not the fact that the claimant was a family member whom Mr. Arnulfo had subjected to gender-based violence. In Hamaisa, Basem v. M.C.I. (F.C., no. IMM-1031-09), Near, Oct.14, 2009; 2009 FC 997, the Federal Court stated that revenge vendettas have no link to Convention grounds and persons fearing harm as a result of blood feuds are not members of a particular social group.            

Return to note 68 referrer

Note 69

In Barrantes, Rodolfo v. M.C.I. (F.C., no. IMM-1142-04), Harrington, April 15, 2005; 2005 FC 518, the Applicants' feared persecution by criminals who believed that the principal claimant was a police informant. The Court upheld the RPD's finding that fear of persecution as a victim of organized crime and a fear of personal vengeance do not constitute a fear of persecution within the meaning of IRPA, s. 96. See also, Prato, Jorge Luis Machado v. M.C.I. (F.C., no. IMM-10670-04), Pinard, August 12, 2005; 2005 FC 1088, where the Court upheld the Board's conclusion that the applicant was really a victim of extortion which has no nexus to any of the grounds. In Kang, Hardip Kaur v. M.C.I. (F.C., no. IMM-775-05), Martineau, August 17, 2005; 2005 FC 1128, the Applicant's stated fear of her uncle, due to her refusal to sell him property, was found to arise as a result of her individual experience as a victim of crime rather than due to her membership in a particular social group (i.e., gender-related); consequently, no nexus existed.

In Mwakotbe, Sarah Gideon v. M.C.I. (F.C., no. IMM-6809-05), O'Keefe, October 16, 2006; 2006 FC 1227, the applicant alleged danger from her estranged husband's family clan which practiced witchcraft, including ritualistic killings of relatives. The Court upheld the PRRA officer's determination that the applicant's in-laws would be motivated by the pursuit of wealth and, therefore, the harm feared was purely criminal in nature. (Under the circumstances, the Court held that it was unnecessary for the officer to have considered whether educated, perceived wealthy members of a family clan that practices witchcraft may be considered a particular social group.)

Return to note 69 referrer

Note 70

Klinko (F.C.A.), supra, footnote 37. In Fernandez De La Torre, Mario Guillermo v. M.C.I. (F.C.T.D., no. IMM-3787-00), McKeown, May 9, 2001, the male claimant claimed a fear of persecution from Mexican criminal elements whose fraudulent activities he witnessed while working as a chauffeur for prominent anti-corruption figures. The Court found that the CRDD had reasonably distinguished Klinko (F.C.A.) in determining that no nexus existed, given that the male claimant had not himself actually denounced corruption. His verbal reports to his boss were therefore redundant since it was reasonable to expect that his boss, the head of the department, would have had a copy of these reports. The Board's finding of "no nexus" was a reasonable one.

In Zhu, Yong Qin v. M.C.I., supra, footnote 57, the claimant claimed to be a refugee sur place, because he gave information to the RCMP about Korean and Chinese individuals charged with human smuggling and feared repercussions by the snakeheads in China, notwithstanding the crackdown by the Chinese government against smugglers. The Court held that persons informing on criminal activity do not form a particular social group. However, "political opinion" should be given a broad interpretation and need not be expressed vis-à-vis the state. By asking only whether the claimant's actions would be perceived by Chinese authorities as contrary to the authorities' opinion and by limiting the perceived opinion to one which challenges the state apparatus, the CRDD construed "political opinion" too narrowly. The CRDD erred in its attempt to distinguish Klinko (F.C.A.). The CRDD must consider whether the government of China or its machinery "may be engaged" in human trafficking so as to provide the required nexus to a Convention ground.

In Adewumi, Adegboyega Oluseyi v. M.C.I. (F.C.T.D., no. IMM-1276-01), Dawson, March 7, 2002; 2002 FCT 258, the claimant was targeted by cult members after he delivered an anti-cult lecture at the University of Benin where he condemned cult activities and criticized the police force and government for non-prosecution of serious crimes. The CRDD concluded that what the claimant feared was criminal activity. In the Court's view, since the claimant's criticism extended to the police and the government, the CRDD erred in its conclusion that there was no nexus.

In Yoli, Hernan Dario v. M.C.I. (F.C.T.D., no. IMM-399-02), Rouleau, December 30, 2002; 2002 FCT 1329, the Court agreed with the CRDD that the claimant was threatened by "Bocca" ( a soccer fan club involved in criminal activities) not because of his political opinion but because he could reveal evidence of criminal activity to the authorities

Return to note 70 referrer

Note 71

Ward, supra, footnote 1, at 750, the Court stated that not just any dissent to any organization will unlock the gates of asylum; the disagreement has to be rooted in political conviction. In Suarez, Jairo Arango v. M.C.I. (F.C.T.D., no. IMM-3246-95), Reed, July 29, 1996, the Court found there was no political content or motivation when the claimant informed on drug lords. A similar conclusion was reached in Munoz, Tarquino Oswaldo Padron v. M.C.I. (F.C.T.D., no. IMM-1884-95), McKeown, February 22, 1996.  See also discussion of Marvin, supra, footnote 27, and Femenia, supra, footnote 57. In La Hoz, Carmen Maria Zoeger v. M.C.I. and Magan, Miguel Luis Contreras v. M.C.I. (F.C., no. IMM-5239-04), Blanchard, May 30, 2005; 2005 FC 762, the applicant's claim was based on his fear of being persecuted by two soldiers involved in drug trafficking whom he allegedly denounced. The applicant acted in accordance with his duties in the army and there was no evidence that he had acted out of political conviction. Nor was there any evidence that the denunciation was or could have been perceived as politically based. Since the applicant was a victim of criminal acts, he was not a member of a particular social group within the meaning of the Convention (Montchak, Klinko). In Lai, Cheong Sing v. M.C.I. (F.C.A., no. A-191-04), Malone, Richard, Sharlow, April 11, 2005; 2005 FCA 125, the applicant alleged that, because of his refusal to participate in a political intrigue, he had been wrongly accused by the Chinese government of smuggling and bribery. The Court found that the Board correctly concluded that there was no nexus between the alleged crimes and any political motive; the motive was one of personal gain and the crimes should not be viewed as political.

Return to note 71 referrer

Note 72

See Klinko (F.C.A.), supra, footnote 37 and note that earlier cases need to be read with caution in light of this judgment. In Berrueta, supra, footnote 57, the claimant had denounced kingpins of a drug cartel and the CRDD had found this not to be an expression of political opinion. However, the Court found that, in some cases, to denounce corruption is to undermine a government's authority where the corruption is pervasive throughout the state. Also in Diamanama, Nsimba v. M.C.I. (F.C.T.D., no. IMM-1808-95), Reed, January 30, 1996, the claimant's refusal to produce dresses for a corrupt government official was viewed as a challenge to the government's authority; and in Bohorquezsupra, footnote 65, the claimant opposed the state lottery and faced threats by corrupt officials. The Court found that the claimant's opposition to the lottery challenged vested political interests. See also Vassiliev, Anatoli Fedorov v. M.C.I. (F.C.T.D. IMM-3443-96), Muldoon, July 4, 1997, where the Court found that the claimant's refusal to transfer bribes to Russian government officials and to launder money was an expression of political opinion.

In Mousavi-Samani, Nasrin v. M.C.I. (F.C.T.D., no. IMM-4674-96), Heald, September 30, 1997, the Court upheld the CRDD's determination that any possible retaliation the claimant feared after making public a document detailing particulars of fraud committed at the bank where she worked and resulting in the conviction of most of the perpetrators, did not have a nexus to the definition. Exposing the fraud did not amount to a challenge to the regime's authority to govern.

See also Mehrabani, Paryoosh Solhjou v. M.C.I. (F.C.T.D., no. IMM-1798-97), Rothstein, April 3, 1998, where the Court upheld the CRDD finding that the claimant's fear of highly placed embezzlers whom he had exposed and against whom he had testified in court did not ground the claim in political opinion. Denouncing corruption was not seen as a challenge to government activities, as the state (Iran), had taken strong action against some of the corrupt officials; Valderrama, Liz Garcia v. M.C.I. (F.C.T.D., no. IMM-444-98), Reed, August 5, 1998; and Murillo Garcia, Orlando Danilo v. M.C.I. (F.C.T.D., no. IMM-1792-98), Tremblay-Lamer, March 4, 1999.

In Kouril, Zdenek v. M.C.I. (F.C.T.D., no. IMM-2627-02), Pinard, June 13, 2003; 2003 FCT 728, the Court distinguished Klinko on the basis that in Klinko, the political opinion expressed took the form of a denunciation of state officials' corruption whereas in this case, the claimant had complained about a group of private citizens acting outside the law. Even under Ward's broad definition of political opinion, the claimant's complaint would not constitute an expression of political opinion, especially since the evidence before the Board was that corruption was not endemic in the Czech Republic. In Liang, Xiao Dong v. M.C.I. (F.C., no. IMM-1286-03), Layden-Stevenson, December 19, 2003; 2003 FC 1501, the Court upheld the Board's decision. The CRDD found that the claimant was a leader of organized crime and excluded him under Article 1 F(b). The Board found there was no nexus to political opinion as articulated in Klinko, as the claimant could not be perceived as opposing the government authorities. It was precisely because of a crackdown on criminality and corruption that the Chinese authorities had an interest in the claimant. In Asghar, Imran Mohammad v. M.C.I. (F.C., no. IMM-8239-04), Blanchard, May 31, 2005; 2005 FC 768, The applicant, the son of a police officer involved in the fight against terrorism, had alleged that he feared persecution because of his family connections. The Court upheld the RPD's finding of no nexus, indicating that although the term "political opinion" must be given a broad interpretation (Klinko, Zhu), the fact that the applicant's father had arrested criminals and had testified against them is not an expression of a political opinion within the meaning of Ward.

Return to note 72 referrer

Note 73

In Ward, supra, footnote 1, at 745, the Court found that the claimant was not part of a social group since he was the target of highly individualized persecution due to what he did as an individual and not because of any group characteristics or association. This reasoning has been followed in Suarez, supra, footnote 71, and in Munoz, supra, footnote 71. In Munoz, the Court also found that exposing corruption is a laudable goal but not fundamental to the human dignity of the claimant and therefore does not place the claimant in a particular social group. See also Mason, supra, footnote 27; and Soberanis, supra, footnote 42.

In Valderrama, supra, footnote 72, counsel defined the claimant's social group as "successful businessman opposed to corruption and unwilling to pay bribes". The facts revealed that it is "successful businessmen" who are being targeted, regardless of their opposition to corruption. After considering Ward and Chan the Court held that there was no nexus between the targeted class and a Convention social group. See also Rangel Becerra, Yanira Esthel v. M.C.I. (F.C.T.D., no. IMM-3550-97), Pinard, August 24, 1998.

 

Return to note 73 referrer

Note 74

Klinko (F.C.A.), supra, footnote 37. In Cen, supra, footnote 45, the claimant was sexually exploited by corrupt government officials. The Court found she belonged to a particular social group of women subject to exploitation and violation of security of the person. In Reynoso, supra, footnote 49, the claimant was the target of a corrupt mayor because she had uncovered his illegal activities. The Court held that her knowledge of the mayor's corruption was an unchangeable characteristic that placed her in a category one social group. In Asghar, supra, footnote 72, the Applicant, the son of a police officer involved in the fight against terrorism, had alleged that he feared persecution because of his family connections. The Court upheld the RPD's finding of no nexus indicating that as the motive of the agents of persecution was criminal and the fear of reprisals was motivated by vengeance or by the fact of being a victim of a criminal act, the Applicant did not belong to a particular social group as set out in Ward. See also Diamanama, supra, footnote 72, Berrueta, supra, footnote 57; and Bohorquez, supra, footnote 65.

Return to note 74 referrer

Note 75

Cius, Ligene v. M.C.I. (F.C., no. IMM-406-07), Beaudry, January 7, 2008; 2008 FC 1. While this case arises in the context of Haiti, there is no reason why the reasoning would not apply to claims from other countries under similar circumstances.

Return to note 75 referrer

Note 76

Soimin, Ruth v. M.C.I. (F.C., no. IMM-3470-08), Lagacé, March 4, 2009; 2009 FC 218.

Return to note 76 referrer

Note 77

Dezameau, Elmancia v. M.C.I. (F.C. no., IMM-4396-09), Pinard, May 27, 2010; 2010 FC 559.

Return to note 77 referrer

Note 78

Josile, Duleine v. M.C.I. (F.C., no. IMM-3623-10, Martineau, January 17, 2011; 2011 FC 39.

Return to note 78 referrer

Note 79

R. v. Osolin [1993] 4 S.C.R.595; R. v. Seaboyer [1991] 2 S.C.R. 577; R. v. Lavalle [1990] 1 S.C.R. 582.

Return to note 79 referrer


Previous | Table of Contents | Next