5.2. TEST - STANDARD OF PROOF
Claimants must establish the factual elements of their case on a balance of probabilities, but they do not have to prove that persecution would be more likely than not.Note 9 The evidence must show only that there are "good grounds" for fearing persecution.Note 10 The test, which has become known as the Adjei test, was set out as:
Is there a reasonable chance that persecution would take place were the applicant returned to his country of origin?Note 11
In Li,Note 12 the Federal Court of Appeal cautioned against confusing the "standard of proof" and the "legal test to be met". The standard of proof refers to the standard the panel will apply when assessing the evidence adduced for the purpose of making factual findings, whereas the legal test is the test for the risk of persecution which a claimant must establish in order to obtain Convention refugee status.
Courts have used various terms to describe this test - "good grounds", "reasonable chance", and "reasonable" or even "serious" possibility, as opposed to a "mere" possibility. The test does not require a probability of persecutionNote 13 and asking claimants to establish that they "would" be persecuted in the future, has been held to be the wrong test.Note 14
The test for well-foundedness was further clarified in Ponniah,Note 15 where Desjardins J.A. stated:
"Good grounds" or "reasonable chance" is defined in Adjei as occupying the field between upper and lower limits; it is less than a 50 per cent chance (i.e., a probability), but more than a minimal or mere possibility. There is no intermediate ground: what falls between the two limits is "good grounds".
In Ioda,Note 16 the Court referred to the test set out in Adjei and Ponniah and rejected the argument that when the Refugee Division based its negative decision on there being a "mere risk" of persecution it was equivalent to finding a "mere possibility". In the Court's view, "risk" conveyed a higher threshold of probability.
With regard to the standard of proof used to assess evidence, the Federal Court has held that certain phrasing in CRDD reasons, such as "we are not convinced"Note 17 or "the claimant did not persuade the panel"Note 18 implied overly exacting standards of proof.
5.3. SUBJECTIVE FEAR AND OBJECTIVE BASIS
A claimant's subjective fear of persecution must have an objective basis. The subjective fear relates to the existence of a fear of persecution in the mind of the claimant. The objective basis requires that there be a valid basis for this fear.Note 19 Claimants may have a subjective fear that they will be persecuted if returned to their country, but the fear must be assessed objectively in light of the situation in that country in order to determine whether the fear is well founded.Note 20 The objective nature of this assessment was emphasized in TungNote 21 where the Court indicated that it was an error to use the word "motivation" in reference to the well-foundedness of the claimant's fear because it introduced a subjective element to a test which was, by law, entirely an objective one.
Both subjective fear and the objective basis for it are crucial elements in the definition of a Convention refugee. In Kamana,Note 22 Madam Justice Tremblay-Lamer held that the panel's finding that the claimant had not credibly established the subjective element was reasonable and that:
The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition - subjective and objective - must be met.
The same reasoning was repeated by Madam Justice Tremblay-Lamer shortly afterwards in Tabet-Zatla,Note 23 a case which has been followed by a number of judges at the Trial DivisionNote 24. In 2002, Justice Tremblay-Lamer was faced with a challenge to her holding in the Maqdassy case.Note 25 The applicant relied on Yusuf,Note 26 an earlier decision by the Federal Court of Appeal which had found that the soundness of rejecting a claim because of the absence of subjective fear in the presence of an objective basis for the fear was "doubtful." In Yusuf, Hugessen J.A. stated:
I find it hard to see in what circumstances it could be said that a person who, we must not forget, is by definition claiming refugee status could be right in fearing persecution and still be rejected because it is said that fear does not actually exist in his conscience.
The applicant in MaqdassyNote 27 relied on this to argue that it might not be necessary to establish a subjective fear of persecution where an objective fear had been shown to exist. Justice Tremblay-Lamer disagreed, noting that Yusuf had been decided prior to Ward,Note 28 in which the Supreme Court made it clear that both components of the test were required. In Geron,Note 29 a case decided several months later, Mr. Justice Blanchard also referred to Ward as authority for finding that the lack of evidence going to the subjective element of the claim was a "fatal flaw". Mr. Justice Harrington too, cited Ward when he held in NazirNote 30 that it was not necessary for him to rule on other issues in that case because "even if there were grounds for an objective fear, there must also be a subjective fear of persecution."
5.3.1. Establishing the Subjective and Objective Elements
As mentioned in Yusuf,Note 31 children or persons suffering from mental disability may be incapable of experiencing fear. The Patel caseNote 32 concerns a minor but notes that either age or disability may cause a claimant to be incapable of articulating his or her subjective fear in a rational manner. If a claimant is not competent and the evidence establishes an objective basis for fear of persecution, the person acting as the claimant's designated representative may establish a subjective fear. In some cases, it may be possible for the tribunal to infer the subjective fear from the evidence. As the Court points out in Patel, it is rare that a claimant who has good reason to be afraid will not be - unless the claimant is incompetent, exceptionally committed to a cause, or perhaps just foolhardy.
Judicial reviews are seldom about such cases. Far more often, they concern claimants who have not met their burden of establishing the subjective component of a well-founded fear because of a credibility issue.
The relationship between subjective fear and credibility has been analyzed from various perspectives and the Federal Court and Federal Court of Appeal have provided a number of observations on this subject, including the following:
- MacGuigan, J. in ShanmugarajahNote 33: "(…) it is almost always foolhardy for a Board in a refugee case, where there is no general issue as to credibility, to make the assertion that the claimants had no subjective element in their fear (…)".(underlining added)
- Cullen, J. in ParadaNote 34 held that if a claimant testifies that he fears for his life and there is evidence to reasonably support those fears, it is improper for the Refugee Division to reject that testimony out of hand without making a negative finding of credibility.
- Teitelbaum, J. in AssadiNote 35 wrote: "Failure to immediately seek protection can impugn the claimant's credibility, including his or her testimony about events in his country of origin."
- Joyal, J. in several cases, including Parmar,Note 36 stated that the subjective component of the well-founded fear test depended solely on the claimant's credibility.
- Cullen, J. in DirieNote 37: "Once the objective grounds for the claimant's fear are present, it is very likely that a subjective fear is also present unless the Board questions the claimant's credibility. (underlining added)
- Lemieux, J. in HatamiNote 38 held that the Board had no evidentiary basis on which to conclude that the claimant did not have a genuine subjective fear of persecution when her subjective fear was clearly established in her PIF and the Board had found her evidence credible.
- Beaudry, J. in HerreraNote 39 first cites Ward to say that the determination of the existence of a subjective fear is based on the claimant's credibility. Then, he agrees with the respondent that the absence of subjective fear "may be fatal to a refugee claim, beyond the simple negative inference of credibility."
- Blais, J. in AhouaNote 40: "The Minister properly pointed out that a negative finding regarding subjective fear may render the assessment of the objective aspect of the complaint superfluous and may in itself warrant the dismissal of the claim."
- Mactavish, J. in Hidalgo TranquinoNote 41: "Having accepted Ms. Hidalgo's evidence as truthful, including the explanation that she provided for her failure to claim elsewhere, it was simply unreasonable for the Board to dismiss her claim for protection under section 96 on the basis that she lacked subjective fear."
- Bédard, J. in Gomez,Note 42 after stating that a finding of a lack of subjective fear is determinative only for a section 96 claim, adds that "subjective fear may sometimes be relevant when assessing the truth of the allegations of a person who claims to be a person in need of protection (…)".
- O'Keefe, J. in KuninNote 43: "A finding that a claimant lacks a subjective fear of persecution necessarily impugns any claimant's credibility."
When the Board concludes that a claimant who alleges having a fear is not credible concerning the existence of subjective fear, it almost always does so on the basis of some behaviour of the claimant which it considers to be inconsistent with that allegation. Case law has confirmed that there are certain ways that persons fearful of serious harm can normally be expected to act. As the Court stated in Aslam,Note 44
The Board would expect that individuals who fear for their personal safety and their life would not only flee at their earliest opportunity but would seek refugee protection as soon as they are beyond the reach of their persecutors and it is reasonable to do so.
Consequently, staying any longer than necessary in a country where a claimant fears persecution, voluntarily returning to that country, passing through other countries without asking for protection or failing to make a claim for protection immediately upon arrival in Canada are all behaviours which, in numerous cases, have been found to be indicative of a lack of subjective fear.Note 45 However, none of these behaviours mandates the rejection of a claim to Convention refugee status without further examination. The Board may be justified in drawing a negative inference when claimants are unable to provide satisfactory explanations for conduct that seems incompatible with their alleged fear.
In addition to seeking protection in a timely manner, there are other types of conduct normally associated with being fearful. If a claimant provides credible evidence demonstrating efforts to avoid detection, such as going into hiding,Note 46 this evidence is considered to support the existence of subjective fear. Conversely, adverse inferences may be drawn when claimants fail to vary their routineNote 47 or take other precautions against falling victim to the persecution they claim to fear.
When claimants do not take steps to seek protection promptly, decision-makers often conclude that their behaviour shows a lack of subjective fear. Case law has been consistent in saying that delay in making a claim to refugee status is not in itself determinative. Three often-cited Federal Court of Appeal decisions acknowledged that delay is, nonetheless, a relevant, and potentially important consideration.Note 48 In Huerta, Mr. Justice Létourneau wrote:
The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.Note 49
As Madam Justice Simpson explained in Cruz,Note 50 the reason why delay is an important factor in the assessment of a refugee claim is because it addresses the existence of a subjective fear, which is an essential element of a Convention refugee claim.
Although not generally a determinative factor in a refugee claim, there are circumstances in which delay can assume a decisive role. A claim to be a Convention refugee may be rejected when delay is accepted as evidence that establishes, on a balance of probabilities, that the claimant lacks subjective fear.Note 51 Such a determination would be made on the basis of a claimant's failure to provide good reasons for the delay. Mr. Justice Crampton remarked that it is
[…] well established that, in the absence of a satisfactory explanation for the delay, the delay can be fatal to such claim, even where the credibility of an applicant's claim has not otherwise been challenged.Note 52
The Board must weigh the evidence and it may reject an explanation for the delay if it finds it inadequate or implausible on reasonable grounds.
It is essential that decision-makers express clearly their findings on the credibility of a claimant's explanation for behaving in a particular manner. When the Board does not accept an explanation as valid, the member is obliged to give reasons.Note 53 In Requena,Note 54 the Board asked the claimant to explain why she had returned to Bolivia, and then simply concluded that she had no subjective fear of persecution. Madam Justice Dawson held that the Board could not make that finding unless it found the evidence to be incredible - which it had not done.
The length of the delay is often a factor taken into considerationNote 55 but it is not in and of itself determinative. While short delays may tend to be more easily explained,Note 56 even very long delays cannot be assumed to indicate a lack of subjective fear. They must be examined in light of the circumstances and the explanations offered by the claimant. Madam Justice Bédard reviewed a decisionNote 57 where the Board had found a six-year delay in claiming to be incompatible with the attitude of a person who feared for her life. However, the claimant was a minor when she arrived to live with some relatives in Canada and the Court held:
[…] There is a presumption that a person having a well-founded fear of persecution will claim refugee protection at the earliest opportunity. If they do not, the legitimacy of the subjective fear that they allege is called into question (Singh citation omitted) This presumption makes sense in the context of an adult refugee who, upon entering Canada, is expected to be aware that in order to stay in Canada indefinitely, he or she will need to regularize their status. However, the mere existence of delay in claiming cannot always be construed as indicating an absence of subjective fear. The delay, and even more importantly, the reasons for the delay, must be assessed in the context of the specific circumstances of each case. (underlining added)
Canadian case law has consistently stressed that the assessment of the credibility and reasonableness of explanations must be done in light of the particular circumstances of the claimant. In the case of El-Naem,Note 58 the Court found that the 19-year-old Syrian claimant's explanation for spending a year in Greece without claiming was not unreasonable "considering all of his circumstances." The young man testified that he had heard that refugee protection in Greece was problematic and he feared deportation to Syria if he exposed his illegal status. He was alone in Greece, anxious to join a brother in Canada who had successfully claimed refugee status. However, he first had to accumulate the money he needed to travel.
In a similar vein, case law has also pointed out the need to closely assess the reasons a claimant engages in behaviour that would normally be seen as incompatible with having a fear. In one case where the Board found that the claimant had no subjective fear because he continued to put himself at risk by returning home to protect his mother against her abusive husband, the Court observed that bonds of family loyalty may lead a person to engage in dangerous conduct that otherwise could be viewed as conduct inconsistent with a lack of subjective fear.Note 59
Psychological reports may provide useful insight into the reasons for a claimant's behaviour, and thus whether or not a particular way of behaving can be taken to be indicative of an absence of fear. In Diluna,Note 60 the Trial Division held, in obiter, that the Refugee Division should have considered a psychiatric assessment that supported the claimant's assertion that she delayed seeking refugee status due to post-traumatic stress syndrome.
Not all expert reports, however, are probative regarding the issue of subjective fear. In one case,Note 61 the Court noted that though there was a psychological report, it provided no explanation justifying the claimant's 14-month delay in claiming protection in Canada. In another case in which the claimant had voluntarily given up protection in the U.K.,Note 62 it was argued that her mental disorders would have affected the rationality of her decision to give up protection. The Court rejected that argument because the psychiatric report submitted was dated more than two years after she left the U.K. and did not establish that the claimant was suffering from any mental disorder at the time she gave up protection.
5.4.1. Delay in leaving the country of persecution
Mr. Justice Shore stated in RahimNote 63 that "[T]he time it takes an applicant to leave his or her country of origin can be taken into account in determining whether that person had a subjective fear of persecution."
Delay in leaving the country if a claimant alleges he or she had reason to fear persecution there normally calls into question the credibility of the fear. In Zuniga,Note 64 the claimant alleged that he feared for his life and that of his family, and yet his wife and children, who already had visas, did not leave the country at the first opportunity. Nor did he himself follow as soon as he could. The whole family left Honduras five months after the principal claimant was issued his U.S. visa. The Court did not accept his explanation that he remained to arrange his papers and pay taxes, as reasonable.
The failure to leave in a timely manner must be assessed in light of all the circumstances. In GebremichaelNote 65 the claimants remained in hiding in their country for a month, despite having acquired visas for the U.S.. The Board drew an adverse inference concerning their subjective fear, a conclusion which the Court upheld as reasonable and clearly explained. It is interesting to note, however, that as a preface to its analysis of the issue, the Court wrote that delay in fleeing a country could normally be justified if the claimant was in hiding at that time.
When a claim is based on a number of discriminatory or harassing incidents which culminate in an event which forces a person to leave his country, the Federal Court has warned that it is problematic to consider delay to be indicative of an absence of subjective fear.
In Voyvodov,Note 66 the first of the two claimants left Bulgaria after being beaten by skinheads. His partner stayed and endured other incidents of violence and discrimination. The Refugee Division considered that the first claimant had failed to meet his burden because he had experienced only one incident. It then went on to express its concern about the second claimant having delayed his departure from the country. The Court observed:
[…] The tribunal appears to place the applicants in an impossible position. It implies that it does not believe Mr. Galev's claim of persecution because he only experienced one alleged attack due to his sexual orientation. On the other hand, it finds that Mr. Voyvodov is not credible because he delayed seeking international protection after being initially attacked.
The Court was similarly critical of the Board's conclusion in Shah,Note 67 describing the claimant as being "between a rock and a hard place". The Board rejected the claim essentially because the claimant waited a year and a half rather than fleeing when his troubles first started. The Court found the Board's conclusion unreasonable in view of the claimant's explanation that the threats had become progressively more serious, that he moved from home the same evening his life was threatened, and left the country the next month.
The analytical flaw was more fully explained by Justice Heneghan in IbrahimovNote 68:
[…] If a person's claim is actually based on several incidents which occur over time, the cumulative effects of which may amount to persecution, then looking to the beginning of such discriminatory or harassing treatment and comparing that to the date on which a person leaves the country to justify rejection of the claim on the basis of delay, undermines the very idea of cumulative persecution.
5.4.2. Failure to seek protection in other countries
A claimant's behaviour after leaving his or her country, but before arriving in Canada, may also be taken into consideration in determining whether the subjective component of a well-founded fear has been established. Failure to seek the protection of another country which is also a signatory to the Convention may be a significant factor to consider but is not in itself determinative. Voluntarily leaving a country where the claimant could safely live is another example of behaviour that can cast doubt on a claimant's subjective fear.
There is no provision in the Convention that obliges refugee claimants to seek asylum in the first country they reach.Note 69 However, there is a presumption that persons fleeing persecution will seek protection at the first opportunity, which would normally be in the first country they reach. Case law states that a negative inference can be drawn from a claimant's failure to claim in a safe third country, but it also clearly states that this failure cannot be a determinative.Note 70 The claimant's explanation must be considered in order to determine whether the claimant's behaviour can fairly be considered to be evidence of a lack of subjective fear.
Whether or not a country is a signatory to the Convention is relevant to determining whether it is reasonable to expect the claimant to have sought protection there. It is clearly a factor for decision-makers to consider.Note 71
The significance of the failure to claim and the resulting conclusion of an absence of subjective fear is highlighted by the case of MemarpourNote 72 where, despite finding that the claimants had been denied a fair hearing, Madame Justice Simpson declined to send the case back for rehearing. She made this rather exceptional ruling because she had no doubt that the Board would again reject the claim, based on the claimant's conduct which indicated a total lack of a subjective fear of persecution. In the ten-year period after he left Iran the claimant studied and worked in several countries but never sought asylum in any of them. His testimony that he was deterred from claiming by the prospect of line-ups at embassies showed how little importance he attached to the issue of protection. Moreover, he travelled extensively on false documents, apparently little worried by the prospect of being discovered and deported to Iran.
In cases concerning claimants who do not claim in a third country, their reasons for not claiming are rarely as easy to dismiss as a reluctance to wait in line. There are many cases of claimants whose intention it is to claim refuge in Canada, and who simply transit through other countries on their way. Some claimants say that they were not aware that they could ask for asylum in the other country. Others choose not to claim in the third country because they have been warned that they have little chance of success there. A reviewing court will normally uphold a decision that considers whether the explanation is reasonable in light of the circumstances of the claimant, including whether they have engaged in other conduct that tends to support or undermine the subjective fear element. The following are examples that illustrate how the various factors have been weighed
- In transit
The Court has frequently held that a short stay in a safe third country en route to Canada is not necessarily considered a sufficiently material sojourn to create an expectation that the claimant would claim refugee status during that stay.Note 73
A failure to make a refugee claim in a third country may raise doubt that a refugee claimant has a subjective fear (citation omitted). However, where a claimant had always planned to come to Canada, and merely was in transit during a stopover in a third country, the Court has held that such a situation does not undermine the subjective fear of persecution.Note 74
- Ignorance of the process
In Perez,Note 75 the Court upheld the Board's finding that the claimant who spent five years in the U.S. before claiming refugee protection in Canada did not provide convincing evidence of his subjective fear. His testimony that he was unaware he could claim asylum in the U.S. was found implausible in light of his repeated attempts to apply to stay under another U.S. program which offered temporary protection.
In the case of Bello,Note 76 the claimant from Cameroon lived in France for seven years, traveled in adjoining countries and lived in the U.S. for another six months, without ever claiming refugee status. The Board found this to be inconsistent with a subjective fear of persecution. It noted that all the countries in question were either signatories to the 1951 Convention or to the 1967 Protocol. The reason given by the claimant for not seeking protection was that France supported the Cameroonian government, and as for the neighbouring countries, he did not know about claiming refugee status. The Court held that it was open to the Board to disbelieve the claimant had a subjective fear of persecution, given the delay in claiming refugee status. It noted that the Board's conclusion was also influenced by the claimant having returned twice to Cameroon.
- Little hope of success
In Madoui,Note 77 an Algerian claimant failed to claim during 19 months in Italy. He had been told by friends that he had little, if any, chance of obtaining refugee status in Italy. Despite statistics in evidence showing that similar claims were rarely accepted, the Board was not satisfied that the subjective component had been met and the Court saw no error in the Board's assessment.
In Mekideche,Note 78 when the Board asked why the claimant did not claim refugee status during his two years in Italy, he testified that it was because he believed that Algerian refugees would be denied and returned to Algeria. This belief was based on news reports that other European countries were not receptive to Algerian refugees. Noting that he travelled throughout Europe with false documentation before arriving in Canada, the Board stated that this was a risk that a person who feared persecution would not take. The Court found no error in the Board's conclusion that these two issues showed an absence of a subjective fear of persecution.
In another case,Note 79 a young Pakistani claimant who arrived in the U.S. came to Canada after just nine days. He feared that he would not be considered for asylum because of the negative atmosphere towards persons from his part of the world following the September 11 attack. The Court held that the circumstances were comparable to those in El NaemNote 80 and that the Board had erred in drawing an unreasonable inference that there was no subjective basis to the claim.
In LiblizadehNote 81, the Court quashed the decision of the CRDD when it found that there was no evidence before the panel that the claimant could realistically have applied for refugee status in Turkey, even though he was there 7 months, and in the U.S., where he was only in transit.
A few cases have pointed out that failure to claim in a third country may not be indicative of a lack of subjective fear in situations where a person is not anticipating a return to his or her country. These were the circumstances in Yoganathan.Note 82 Mr. Justice Gibson followed the same reasoning as the Court of Appeal in Hue.Note 83 Both cases involved seamen. Justice Gibson held that the CRDD erred in concluding that the claimant did not have a subjective fear of persecution as he had failed to claim refugee status at the first opportunity in other signatory countries: "The [claimant] had his 'sailor's papers' and 'a ship to sail on'. In the circumstances, he did not have to seek protection. He was safe from persecution in Sri Lanka."
Leaving a country which has provided refuge and where a claimant has no fear of persecution is generally considered to be behaviour indicative of a lack of subjective fear. In Shahpari,Note 84 the Court suggested, in obiter, that:
Applicants should also remember that actions they themselves take which are intended to result in their not being able to return to a country which has already granted them Convention refugee status may well evidence an absence of the subjective fear of persecution in their original country from which they purport to be seeking refuge.
In Geron,Note 85 the Board concluded that the claimants, citizens of the Philippines, were not credible and lacked subjective fear, as evidenced by the long delay before they claimed refugee status and the fact that they had valid residence permits for Italy but allowed them to lapse during the 18 months they remained in Canada prior to making their claims. The Court held that the Board had not erred in failing to consider the objective basis of the claim; it could be dismissed in the absence of any credible evidence to support the claimants' subjective fear.
Even where the refuge is not necessarily a permanent one, questions about the claimant's fear will usually be raised whenever a safe haven is abandoned in order to claim refugee status in Canada. In Bains,Note 86 a claimant from India who applied for asylum in England, left after waiting five or six years without an answer. He explained that he had heard that the British authorities were removing claimants awaiting status, though he produced no evidence of this. The Court noted that the British authorities had clearly told the claimant that he would not be deported before a decision on his status had been made. The Court considered that the CRDD was justified in verifying the reason the claimant gave for leaving England and that it was reasonable to conclude that the claimant's decision to leave did not demonstrate a fear of being returned to India.
5.4.3. Delay in making a claim upon arrival in Canada
Mr. Justice Shore set out the basic principles related to delay in claiming once in Canada:
There is a well-established principle to the effect that any person having a well-founded fear of persecution should claim refugee protection in Canada as soon as he or she arrives in the country, if that is his or her intent. On this point, the Federal Court of Appeal has already concluded that any delay in claiming refugee protection is an important factor which the Board may take into consideration in its analysis. Such a delay indicates a lack of a subjective fear of persecution, since there is a presumption to the effect that a person having a well-founded fear of persecution will claim refugee protection at the first opportunity. Accordingly, in conducting its assessment, the Board is entitled to take into consideration the applicant's delay in claiming refugee protection. [citations omitted]Note 87
There is case law dealing with the issue of timing; namely whether the proper reference point is always the date of arrival in Canada. The Court in the GabeyehuNote 88 case stated otherwise. The Court noted as a general proposition that "[d]elay in making a claim can only be relevant from the date as of which [a claimant] begins to fear persecution." It is the same principle applied to a sur place claim in Tang.Note 89
Because delay is relevant only after the claimant has a reason to fear persecution, it has been argued that negative inferences cannot be drawn when persons who have legal status in Canada fail to claim. In Gyawali,Note 90 Madame Justice Tremblay-Lamer agreed that there exist situations in which negative inferences may not be drawn from a failure to apply for refugee status immediately upon arrival. She found that a valid status in Canada could constitute a good reason for not claiming refugee protection. The Court drew a parallel between the sailor on the ship whose contract expired, leaving him nowhere to go but home,Note 91 and the claimant, who had a student visa and had also made an application for permanent residency in Canada. Until he could no longer pay for his studies, he had no reason to fear having to return to his country. Both the sailor and the student had left their countries fearing persecution, but having found a safe place to stay, they felt no immediate need to apply for refugee status. As soon as they found themselves at risk of being forced to return home, they filed claims for refugee protection.
In several cases, the Court has upheld Board decisions in which possession of a valid but temporary status was not found to be an acceptable reason to delay claiming protection. Madame Justice Tremblay-Lamer, the year before her ruling in Gyawali, held that it was open to the Board to reject a claim based largely on a two-year delay in claiming refugee status. The claimant in that caseNote 92 was on a student visa in Canada. On the advice of a consultant, he applied for permanent residence and claimed refugee status only after his permanent residence application was unsuccessful. Other cases of persons in status were similarly rejected in 2005 and 2007.Note 93 In 2009, Mr. Justice de Montigny wrote:
It is trite law that a delay in submitting a refugee protection claim, while not decisive, remains a relevant element that the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant: Huerta [citation omitted]. The claimant knew upon his arrival in Canada that he was only authorized to stay in Canada for a specific and limited period of time. Under these circumstances, it was reasonable to expect that he would regularize his status as soon as possible if he truly feared for his life and physical integrity in India.Note 94
Apart from persons who do not feel the need to claim immediately, there are claimants who have no knowledge of the refugee process or their eligibility to claim protection. In the absence of any adverse credibility finding, the explanation that a claimant did not know that she could claim refugee status based on spousal abuse has successfully been used to refute findings that lengthy delays in claiming were due to an absence of subjective fear.Note 95
In a case where the claimant did not claim asylum for four years because he wanted to know what was needed to claim,Note 96 his explanation was not accepted. The Board interpreted the fact that he renewed his visa twice without ever making inquiries about claiming refugee status as evidence that he had no subjective fear. The Court saw nothing unreasonable about that conclusion.
Depending on the advice or help of others has also been held to be an unsatisfactory reason to delay claiming. For example, in Singh,Note 97 the claimant waited almost one and a half years after he arrived in Canada before filing his refugee claim. The RPD did not accept the claimant's explanation that he had asked the gurdwara management to help him file for political asylum but that whenever he asked them about his immigration status, he received no satisfactory response. The Court dismissed the judicial review on the grounds of delay, saying it was not reasonable that someone fearing for his life would not take any action himself. When the claimant had not received any help for almost a year and a half, he should have taken the initiative and inquired about his rights and obligations under the Canadian immigration system.
5.5. RE-AVAILMENT OF PROTECTION
Return to the country of nationality is the kind of re-availmentNote 98 that is most often discussed in the case law. Citing several cases in Kabengele,Note 99 Mr. Justice Rouleau stated:
It is quite proper for the Refugee Division to take the plaintiff's actions into account in assessing his subjective fear. It is reasonable for it to conclude that the fact he returned to the country where he feared persecution makes the existence of such a fear unlikely (citations omitted)
However, the Court has cautioned that the mere fact of returning to a country of nationality is not determinative of whether a refugee claimant possesses a subjective fear. The Court gave the examples of evidence of a claimant's belief that country conditions have changed or evidence of a claimant's temporary visit while he or she remained in hiding, that would be evidence inconsistent with a finding of a lack of subjective fear.Note 100
The credibility assessment of the reasons claimants give for returning to their country is vitally important. If they clearly state that they did not intend to re-avail themselves of the protection of their country and assert not having lost their subjective fear, absent an adverse finding of credibility, the Board would err in finding that the claimants had re-availed themselves of protection and did not have a subjective fear.Note 101 In Kanji, the Board made no express finding that it disbelieved the claimant's evidence and it gave no reasons for doing so. The Court held that the claimant's clear statement that she did not re-avail herself of the protection of India, nor lose her subjective fear contradicted and negated any possible finding to the contrary on the basis of the purely circumstantial evidence of her returns to India.
In Caballero,Note 102 where the claimant testified that he went back to Honduras intending to stay a year in order to sell his land, the Court agreed with the Refugee Division that his behaviour was inconsistent with a well-founded fear of persecution.
Even where the motivation for returning may be seen as quite compelling, a consideration of all the circumstances may result in a negative inference as to the existence of subjective fear. In Arayo,Note 103 the principal claimant had returned to Chile and remained there for some nine weeks while she obtained the permission of the father of her child to remove the child from Chile. While the evidence regarding re-availment clearly indicated that it was for the sole purpose of allowing the mother to bring her son to Canada with her, the evidence did not go so far as to establish that other arrangements could not have been made so that the two claimants could have left Chile together when the mother first left.
Re-availment of the protection of one's country, in addition to physically returning there, can also include actions such as obtaining or renewing a passport or travel document,Note 104 and leaving or emigrating through lawful channels.Note 105 The same considerations apply to these forms of re-availment too. The surrounding circumstances and the credibility of the claimant's explanations determine whether it can reasonably be concluded that they indicate the absence of the subjective component of a well-founded fear of persecution.
In Vaitialingam,Note 106 although the claimant argued that she did not intend to remain in Sri Lanka, the Court was satisfied that it was reasonable for the Board to conclude that the claimant did not harbour a genuine fear of persecution in Sri Lanka because she had voluntarily made two trips back to her country. The Board also considered that the claimant's renewal of her Sri Lankan passport for the purpose of travelling there indicated her willingness to entrust her welfare to the state of Sri Lanka.
In Chandrakumar,Note 107 the Court held that Board erred in drawing the inference that the applicant re-availed himself of his country's protection from the mere fact that he renewed his passport. More evidence was required, particularly concerning the claimant's motivations in renewing his passport, namely whether his intention was to re-avail himself of Sri Lanka's protection.
The Federal Court has held that it is an error to find a lack of subjective fear when the claimant was removed to his or her country, and thus did not return voluntarily. In Kurtkapan,Note 108 the Court found the Board's conclusion that the claimant lacked a subjective basis for a fear of persecution "perverse, capricious and unreasonable" because it ignored the fact that he was deported to Turkey and did not return there voluntarily.
5.6. SUR PLACENote 109 CLAIMS AND WELL-FOUNDED FEAR
It is proper for the Refugee Division, when considering the subjective element, to look at the fact that the claimant took allegedly self-endangering actions after making his or her claim, and to inquire into the claimant's motivation.Note 110 However, the case law is consistent that if dealing with a sur place claim, even when the motivation indicates the absence of subjective fear, the analysis cannot end there.
Mr. Justice Hugessen affirmed the relevance of motive in assessing the subjective component of a well founded fear in cases where the claimants themselves were responsible for creating the circumstances leading to their sur place claims, but he also warned that the objective component nonetheless had to be assessed. In the AsfawNote 111 case, he stated:
In my view, it has been the law for a very long time that a Convention refugee claimant must demonstrate both an objective and a subjective basis for his fear of persecution. It is my view that the case will be rare where there is an objective fear but not a subjective fear, but such cases may exist. In my view, it is certainly relevant to examine the motives underlying a claimant's participation in demonstrations such as this one in order to determine whether or not that claimant does have a subjective fear. The Board's examination of the motives was therefore not an irrelevant matter and the determination which they reached on that subject was one which was open to them on the evidence. It would I agree have been an error if the Board had stopped its examination at that point and had not also looked at whether or not the claimant had an objective fear but, they did not commit that error. The Board looked at the evidence with respect to the objective basis for the applicant's fear of return and found it not to be well-founded. That was a determination which was equally open to the Board on the evidence before it and I can take no issue with it.
In a similar case,Note 112 decided on the same date, he stated:
The argument is that it was irrelevant for the Board to examine the applicant's motives in acting as she did. In the view which I and other members of this Court have previously expressed, it is not irrelevant. The matter of motive goes to the genuineness or otherwise of the applicant's expressed subjective fear of persecution. That said, however, there is and must always be an intimate interplay between the subjective and objective elements of the fear of persecution which is central to the definition of convention refugee and, I have previously expressed the view that it would be an error for a Board to rely exclusively on its view that a claimant did not have a subjective fear of persecution without also examining the objective basis for that fear. The Board in this case, however, did not commit an error of that sort.
In Ejtehadian,Note 113 the Court stated that it is necessary to consider the credible evidence of the claimant's activities while in Canada independently from his motives for conversion, and assess the risk of persecution on return.