CHAPTER 5 - WELL-FOUNDED FEAR

Previous | Table of Contents | Next

TABLE OF CONTENTS

  1. 5.1. GENERALLY
  2. 5.2. TEST - STANDARD OF PROOF
  3. 5.3. SUBJECTIVE FEAR AND OBJECTIVE BASIS
    1. 5.3.1. Establishing the Subjective and Objective Elements
  4. 5.4. DELAY
    1. 5.4.2. Failure to seek protection in other countries
    2. 5.4.3. Delay in making a claim upon arrival in Canada
  5. 5.5. RE-AVAILMENT OF PROTECTION
  6. 5.6. SUR PLACE CLAIMS AND WELL-FOUNDED FEAR
  7. TABLE OF CASES

5. WELL-FOUNDED FEAR

5.1. GENERALLY

The definition of Convention refugee is forward-looking. In a claim for refugee status, the issue is not whether the claimant had good reason to fear persecution in the past, but whether, at the time the claim is being assessed, the claimant has good grounds for fearing persecution in the future.Note 1

Claimants must establish that they have a subjective fear of persecution and also that the fear is well-founded in an objective sense,Note 2 that is, it is justified in light of the objective situation. When evaluating conditions in the claimant's country of origin, the tribunal is required to consider evidence of the conditions as they exist at the time of the hearing.Note 3

Claimants do not have to establish that they have been persecuted in the past.Note 4 Even if they can do so, "past persecution is insufficient of itself to establish a fear of future persecution".Note 5 Nonetheless, past persecution remains a relevant consideration because evidence relating to it (or to a fear of past persecution) can properly be the foundation of a present fearNote 6. In Natynczy,Note 7 the Court remarked that even though the test for a well-founded fear was forward-looking, in cases where incidents of past persecution were alleged, the Board had an obligation to assess those incidents because "evidence of past persecution is one of the most effective means of showing that a fear of future persecution is objectively well-founded." Where a claimant is able to establish a pattern of long-standing persecution, there may be reason to believe that the pattern will continue.Note 8

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.

5.4. DELAY

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.

TABLE OF CASES

  1. A.G.I. v. M.C.I. (F.C.T.D., no. IMM-5771-01), Kelen, December 11, 2002; 2002 FCT 1287
  2. Abawaji, Abdulwahid Haji Hassen v. M.C.I. (F.C., no. IMM-6276-05), Mosley, September 6, 2006; 2006 FC 1065
  3. Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.)
  4. Ahmad, Mahmood v. M.C.I. (F.C.T.D., no. IMM-1012-01), Tremblay-Lamer, February 14, 2002; 2002 FCT 171
  5. Ahoua, Wadjams Jean-Marie v. M.C.I. (F.C., no. IMM-1757-07), Blais, November 27, 2008; 2007 FC 1239
  6. Akacha, Kamel v. M.C.I. (F.C., no. IMM-548-03), Pinard, December 19, 2003; 2003 FC 1489
  7. Akram, Ejaz v. M.C.I. (F.C., no. IMM-3106-03), Pinard, July 2, 2004; 2004 FC 927
  8. Anandasivam, Vallipuram v. M.C.I. (F.C.T.D., no. IMM-4748-00), Lemieux, October 10, 2001
  9. Araya, Carolina Isabel Valenzuela v. M.C.I. (F.C.T.D., no. IMM-3948-97), Gibson, September 4, 1998
  10. Asfaw, Napoleon v. M.C.I. (F.C.T.D., no. IMM-5552-99), Hugessen, July 18, 2000
  11. Aslam, Muhammad v. M.C.I. (F.C., no. IMM-3264-05), Shore, February 16, 2006; 2006 FC 189
  12. Assadi, Nasser Eddin v. M.C.I. (F.C.T.D., no. IMM-2683-96), Teitelbaum, March 25, 1997
  13. Bains, Gurmukh Singh v. M.C.I. (F.C.T.D., no. IMM-3698-98), Blais, April 21, 1999
  14. Bello, Salihou v. M.C.I. (F.C.T.D., no. IMM-1771-96), Pinard, April 11, 1997
  15. Beltran, Luis Fernando Berrio v. M.C.I. (F.C.T.D., no. IMM-829-96), Dubé, October 29, 1996
  16. Caballero, Fausto Ramon Reyes v. M.E.I. (F.C.A., no. A-266-91), Marceau (dissenting), Desjardins, Létourneau, May 13, 1993
  17. Castillejos, Jaoquin Torres v. M.C.I. (F.C.T.D., no. IMM-1950-94), Cullen, December 20, 1994
  18. Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593
  19. Chandrakumar v. M.E.I. (F.C.T.D., no. A-1649-92), Pinard, May 16, 1997
  20. Chichmanov, Yordan Anguelov v. M.E.I. (F.C.A., no. A-243-91), Isaac, Heald, Létourneau, September 3, 1992
  21. Chudinov, Nickolai v. M.C.I. (F.C.T.D., no. IMM-2419-97), Joyal, August 14, 1998
  22. Correira, Osvaldo De Matos v. M.C.I. (F.C., no. IMM-8077-04), O'Keefe, August 3, 2005, 2005 FC 1060
  23. Cruz v. Canada (Minister of Employment and Immigration) (F.C.T.D., no. IMM-3848-93) Simpson, June 16, 1994
  24. 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.)
  25. Dirie, Abdulle Milgo v. M.C.I. (F.C.T.D., no. IMM-5428-97), Cullen, October 6, 1998
  26. Duarte, Augustina Castelanos v. M.C.I. (F.C.T.D., no. IMM-6616-02), Kelen, August 21, 2003; 2003 FCT 988
  27. Ejtehadian, Mostafa v. M.C..I. (F.C., no. IMM-2930-06), Blanchard, February 12, 2007; 2007 FC 158
  28. El-Naem, Faisal v. M.C.I. (F.C.T.D., no. IMM-1723-96), Gibson, February 17, 1997. Reported: El-Naem v. Canada (Minister of Citizenship and Immigration) (1997), 37 Imm. L.R. (2d) 304 (F.C.T.D.)
  29. Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003; 2003 FC 1324
  30. Fernando v. M.C.I. (F.C.T.D., no. IMM-4601-00), Nadon, July 5, 2001
  31. Fernandopulle, Eomal v. M.C.I. (F.C., no. IMM-3069-03), Campbell, March 18, 2004, 2004 FC 415
  32. Fernandopulle, Eomal v. M.C.I. (F.C.A., no. A-217-04), Sharlow, Nadon, Malone, March 8, 2005, 2005 FCA 91
  33. Gabeyehu, Bruck v. M.C.I. (F.C.T.D., no. IMM-863-95), Reed, November 8, 1995
  34. Gebremichael, Addis v. M.C.I. (F.C., no. IMM-2670-05), Russell, May 1, 2006; 2006 FC 547
  35. Geron, Fernando Bilog v. M.C.I. (F.C.T.D., no. IMM-4951-01, Blanchard, November 22, 2002; 2002 FCT 1204
  36. Gomez v. Canada (Minister of Citizenship and Immigration) (F.C., IMM-1412-10), Bédard, October 22, 2010
  37. Gyawali, Nirmal v. M.C.I. (F.C., no. IMM-926-03), Tremblay-Lamer, September 24, 2003; 2003 FC 1122
  38. Hatami, Arezo v. M.C.I. (F.C.T.D., no. IMM-2418-98), Lemieux, March 23, 2000
  39. Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988
  40. Herrera, Juan Blas Perez de Corcho v. M.E.I. (F.C.T.D., no. A-615-92), Noël, October 19, 1993
  41. Herrera, William Alexander Cruz v. M.C.I. (F.C., IMM-782-07), Beaudry, October 1, 2007
  42. Hidalgo Tranquino, Claudia Isabel v. M.C.I. (F.C., no. IMM-86-10), Mactavish, July 29, 2010; 2010 FC 793
  43. Hue, Marcel Simon Chang Tak v. M.E.I. (F.C.A., no. A-196-87), Marceau, Teitelbaum, Walsh, March 8, 1988
  44. Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugessen, Desjardins, Létourneau, March 17, 1993. Reported: Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.)
  45. Ibrahimov, Fikrat v. M.C.I. (F.C., no. IMM-4258-02), Heneghan, October 10, 2003; 2003 FC 1185
  46. Ilie, Lucian Ioan v. M.C.I. (F.C.T.D., no. IMM-462-94), MacKay, November 22, 1994
  47. Ilyas, Muhammad v. M.C.I. (F.C., no. IMM-5636-03), Russell, September 16, 2004; 2004 FC 1270
  48. Ioda, Routa v. M.E.I. (F.C.T.D., no. 92-A-6604), Dubé, June 18, 1993. Reported: Ioda v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 294 (F.C.T.D.)
  49. John, Shontel Dion v. M.C.I. (F.C., no. IMM-1683-10), Bédard, December 14, 2010; 2010 FC 1283
  50. Kabengele v. M.C.I. (F.C. no., IMM-1422-99), Rouleau, November 16, 2000
  51. Kamana, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999
  52. Kanji, Mumtaz Badurali v. M.C.I. (F.C.T.D., no. IMM-2451-96), Campbell, April 4, 1997
  53. Kunin, Aleksandr v. M.C.I. (F.C., no. IMM-5225-09), O'Keefe, November 4, 2010; 2010 FC 1091
  54. Kurtkapan, Osman v. M.C.I. (F.C.T.D., no. IMM-5290-01), Heneghan, October 25, 2002, 2002 FCT 1114
  55. 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.)
  56. Lameen, Ibrahim v. S.S.C. (F.C.T.D., no. A-1626-92), Cullen, June 7, 1994
  57. Li, Yi Mei v. M.C.I. (F.C.A., no. A-31-04), Rothstein, Noël, Malone, January 5, 2005; 2005 FCA 1
  58. Liblizadeh, Hassan v. M.C.I. (F.C.T.D., no. IMM-5062-97), MacKay, July 3, 1998
  59. Madoui, Nidhal Abderrah v. M.C.I. (F.C.T.D., no. IMM-660-96), Denault, October 25, 1996
  60. Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.)
  61. Maqdassy, Joyce Ruth v. M.C.I. (F.C.T.D., no. IMM-2992-00), Tremblay-Lamer, February 19, 2002; 2002 FCT 182
  62. Martinez Requena, Ericka Marlene v. M.C.I. (F.C., no. IMM-4725-06), Dawson, September 27, 2007; 2007 FC 968
  63. Maximilok, Yuri v. M.C.I. (F.C.T.D., no. IMM-1861-97), Joyal, August 14, 1998
  64. Mekideche, Anouar v. M.C.I. (F.C.T.D., no. IMM-2269-96), Wetston, December 9, 1996
  65. Memarpour, Mahdi v. M.C.I. (F.C.T.D., no. IMM-3113-94), Simpson, May 25, 1995
  66. Mendez, Alberto Luis Calderon v. (F.C., no. IMM-1837-04), Teitelbaum, January 27, 2005; 2005 FC 75
  67. Menjivar, Carlos Othmar Navarrete v. M.C.I. (F.C., no. IMM-9660-04), Dawson, January 6, 2006; 2006 FC 11
  68. Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.)
  69. Natynczyk v. Canada (Minister of Employment and Immigration), (F.C., no. IMM-2025-03), O'Keefe, June 25, 2004
  70. Nazir, Qaiser Mahmood v. M.C.I. (F.C., no. IMM-3857-04), Harrington, February 3, 2005; 2005 FC 168
  71. Nijjer, Yadhwinder Singh v. M.C.I. (F.C., no. IMM-340-09), de Montigny, December 9, 2009; 2009 FC 1259
  72. Niyonkuru, Joseph v. M.C.I. (F.C., no. IMM-4230-04), De Montigny, February 4, 2005, 2005 FC 174
  73. Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592 (C.A.)
  74. Packinathan, Lindan Lorance v. M.C.I.(F.C., no. IMM-6640-09), Snider, August 23, 2010; 2010 FC 834
  75. Parada, Felix Balmore v. M.C.I. (F.C.T.D., no. A-938-92), Cullen, March 6, 1995
  76. Parmar, Satnam Singh v. M.C.I. (F.C.T.D., no. IMM-838-97), Joyal, January 21, 1998
  77. Paszkowska: M.E.I. v. Paszkowska, Malgorzata (F.C.A., no. A-724-90), Hugessen, MacGuigan, Décary, April 16, 1991. Reported: Canada (Minister of Employment and Immigration) v. Paszkowska (1991), 13 Imm. L.R. (2d) 262 (F.C.A.)
  78. Patel: Canada (Minister of Citizenship and Immigration) v. Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008; 2008 FC 747
  79. Perez, Franklin Antonio v. M.C. I. (F.C., no. IMM-4450-09), Boivin, March 30, 2010; 2010 FC 345
  80. Petrescu, Mihai v. S.G.C. (F.C.T.D., no. A-980-92), Tremblay-Lamer, October 26, 1993
  81. Ponniah, Manoharan v. M.E.I. (F.C.A., no. A-345-89), Heald, Hugessen, Desjardins, May 16, 1991. Reported: Ponniah v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 241 (F.C.A.)
  82. Rahim, Ziany v. M.C.I. (F.C., no. IMM-2729-04), Shore, January 18, 2005, 2005 FC 18
  83. Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984. Reported: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.)
  84. Ribeiro, Wender Magno v. M.C.I. (F.C., no. IMM-8843-04), Dawson, October 11, 2005; 2005 FC 1363
  85. Rivera, Jesus Vargas v. M.C.I. (F.C., no. IMM-5826-02), Beaudry, November 5, 2003; 2003 FC 1292
  86. Sabapathy, Thevi (F.C.T.D., no. IMM-1507-96), Campbell, March 27, 1997
  87. Salguero, Erbin Salomon Rosales v. M.C.I. (F.C., no. IMM-4402-04), Mactavish, May 18, 2005; 2005 FC 716
  88. Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.)
  89. Satiacum: M.E.I. v. Satiacum, Robert (F.C.A., no. A-554-87), Urie, Mahoney, MacGuigan, June 16, 1989. Reported: Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.)
  90. Seifu, Eshetu v. M.E.I. (F.C.A., no. A-277-82), Pratte, Le Dain, Hyde, January 12, 1983
  91. Shah, Mahmood Ali v. M.C.I. (F.C., no. IMM-4425-02), Blanchard, September 30, 2003; 2003 FC 1121
  92. Shahpari, Khadijeh v. M.C.I. (F.C.T.D., no. IMM-2327-97), Rothstein, April 3, 1998
  93. Shanmugarajah, Appiah v. M.E.I. (F.C.A., no. A-609-91), Stone, MacGuigan, Henry, June 22, 1992
  94. Singh, Nirmal v. M.C.I. (F.C., no. IMM-7334-05), Teitelbaum, June 13, 2006, 2006 FC 743
  95. Singh, Pritam v. M.C.I. (F.C., no. IMM-2513-06), Shore, January 25, 2007; 2007 FC 62
  96. Singh, Sebastian Swatandra v. M.C.I. (F.C.T.D., no. IMM-3840-97), Nadon, December 7, 1998
  97. Tabet-Zatla, Mohamed v. M.C.I. (F.C.T.D., no. IMM-6291-98), Tremblay-Lamer, November 2, 1999
  98. Tang, Xiaoming v. M.C.I. (F.C.T.D., no. IMM-3650-99), Reed, June 21, 2000
  99. Tung, Zhang Shu v. M.E.I. (F.C.A., no. A-220-90), Heald, Stone, Linden, March 21, 1991. Reported: Tung v. Canada (Minister of Employment and Immigration) (1991), 124 N.R. 388 (F.C.A.)
  100. Vaitialingam v. M.C.I. (F.C., no. IMM-9445-03), O'Keefe, October 20, 2004, 2004 FCT 1459
  101. Velez, Liliana v. M.C.I. (F.C., no. IMM-5660-09), Crampton, September 15, 2010; 2010 FC 923
  102. Voyvodov, Bogdan Atanassov v. M.C.I. (F.C.T.D., no. IMM-5601-98), Lutfy, September 13, 1999
  103. Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85
  104. Williams, Debby v. S.S.C. (F.C.T.D., no. IMM-4244-94), Reed, June 30, 1995
  105. Wong, Siu Ying v. M.E.I. (F.C.A., no. A-804-90), Heald, Marceau, Linden, April 8, 1992. Reported: Wong v. Canada (Minister of Employment and Immigration) (1992), 141 N.R. 236 (F.C.A.)
  106. Yeboah, Christian v. M.E.I. (F.C.T.D., no. 92-A-7049), Teitelbaum, July 16, 1993. Reported: Yeboah v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 81 (F.C.T.D.)
  107. Yoganathan, Kandasamy v. M.C.I. (F.C.T.D., no. IMM-3588-97), Gibson, April 20, 1998
  108. Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.)
  109. Zewedu, Haimanot v. M.C.I. (F.C.T.D., no. IMM-5564-99), Hugessen, July 18, 2000
  110. Zuniga, Alexis Ramon Garcia v. S.C.C. (F.C.T.D., no. IMM-118-94), Teitelbaum, July 4, 1994

Notes

Note 1

Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.) at 404.

Return to note 1 referrer

Note 2

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 723.

Return to note 2 referrer

Note 3

M.E.I. v. Paszkowska, Malgorzata (F.C.A., no. A-724-90), Hugessen, MacGuigan, Décary, April 16, 1991. Reported: Canada (Minister of Employment and Immigration) v. Paszkowska (1991), 13 Imm. L.R. (2d) 262 (F.C.A.). 

Return to note 3 referrer

Note 4

Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.), at 258.

Return to note 4 referrer

Note 5

Fernandopulle, Eomal v. M.C.I. (F.C., no. IMM-3069-03), Campbell, March 18, 2004, 2004 FC 415, at para. 10. In this case, Mr. Justice Campbell rejected the argument that there is a rebuttable presumption under Canadian law that a person who has been the victim of persecution in the past has a well-founded fear of persecution. The ruling was confirmed by the Federal Court of Appeal in Fernandopulle, Eomal v. M.C.I. (F.C.A., no. A-217-04), Sharlow, Nadon, Malone, March 8, 2005, 2005 FCA 91.

Return to note 5 referrer

Note 6

M.E.I. v. Satiacum, Robert (F.C.A., no. A-554-87), Urie, Mahoney, MacGuigan, June 16, 1989. Reported: Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.).

Return to note 6 referrer

Note 7

Natynczyk v. Canada (Minister of Employment and Immigration), (F.C., no. IMM-2025-03), O'Keefe, June 25, 2004, at para. 71.

Return to note 7 referrer

Note 8

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.).

Return to note 8 referrer

Note 9

Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.), at 682.

Return to note 9 referrer

Note 10

Seifu, Eshetu v. M.E.I. (F.C.A., no. A-277-82), Pratte, Le Dain, Hyde, January 12, 1983.

Return to note 10 referrer

Note 11

Adjei, supra, footnote 9 at 683.

Return to note 11 referrer

Note 12

Li, Yi Mei v. M.C.I. (F.C.A., no. A-31-04), Rothstein, Noël, Malone, January 5, 2005; 2005 FCA 1.

Return to note 12 referrer

Note 13

Adjei, supra, footnote 9 at 682-3.

Return to note 13 referrer

Note 14

Yeboah, Christian v. M.E.I. (F.C.T.D., no. 92-A-7049), Teitelbaum, July 16, 1993 at para. 53. Reported: Yeboah v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 81 (F.C.T.D.).  The Court in Li, supra, footnote 12, considered that the word "would" implies a probability test.

Return to note 14 referrer

Note 15

Ponniah, Manoharan v. M.E.I. (F.C.A., no. A-345-89), Heald, Hugessen, Desjardins, May 16, 1991. Reported: Ponniah v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 241 (F.C.A.), at 245.

Return to note 15 referrer

Note 16

Ioda, Routa v. M.E.I. (F.C.T.D., no. 92-A-6604), Dubé, June 18, 1993. Reported: Ioda v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 294 (F.C.T.D.).

Return to note 16 referrer

Note 17

Chichmanov, Yordan Anguelov v. M.E.I. (F.C.A., no. A-243-91), Isaac, Heald, Létourneau, September 3, 1992.

Return to note 17 referrer

Note 18

Petrescu, Mihai v. S.G.C. (F.C.T.D., no. A-980-92), Tremblay-Lamer, October 26, 1993, at para. 20.

Return to note 18 referrer

Note 19

Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984. Reported: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), at 134.

Return to note 19 referrer

Note 20

In Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, at 664 (para. 134), Major, J. stated: "The objective component of the test requires an examination of the 'objective situation' and the relevant factors include the conditions in the applicant's country of origin and the laws in that country together with the manner in which they are applied. "

Return to note 20 referrer

Note 21

Tung, Zhang Shu v. M.E.I. (F.C.A., no. A-220-90), Heald, Stone, Linden, March 21, 1991. Reported: Tung v. Canada (Minister of Employment and Immigration) (1991), 124 N.R. 388 (F.C.A.).

Return to note 21 referrer

Note 22

Kamana, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999.

Return to note 22 referrer

Note 23

Tabet-Zatla, Mohamed v. M.C.I. (F.C.T.D., no. IMM-6291-98), Tremblay-Lamer, November 2, 1999.

Return to note 23 referrer

Note 24

Tabet-Zatla, ibid., was followed in Fernando v. M.C.I. (F.C.T.D., no. IMM-4601-00), Nadon, July 5, 2001 and Anandasivam, Vallipuram v. M.C.I. (F.C.T.D., no. IMM-4748-00), Lemieux, October 10, 2001; while Akacha, Kamel v. M.C.I. (F.C., no. IMM-548-03), Pinard, December 19, 2003; 2003 FC 1489 at para. 5; and Herrera, William Alexander Cruz v. M.C.I. (F.C., IMM-782-07), Beaudry, October 1, 2007, at para. 23, followed Kamana.

Return to note 24 referrer

Note 25

Maqdassy, Joyce Ruth v. M.C.I. (F.C.T.D., no. IMM-2992-00), Tremblay-Lamer, February 19, 2002; 2002 FCT 182.

Return to note 25 referrer

Note 26

Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.), at 632.

Return to note 26 referrer

Note 27

Maqdassy, supra, footnote 25.

Return to note 27 referrer

Note 28

Canada (Attorney General) v. Ward, supra, footnote 2.

Return to note 28 referrer

Note 29

Geron, Fernando Bilog v. M.C.I. (F.C.T.D., no. IMM-4951-01), Blanchard, November 22, 2002; 2002 FCT 1204.

Return to note 29 referrer

Note 30

Nazir, Qaiser Mahmood v. M.C.I. (F.C., no. IMM-3857-04), Harrington, February 3, 2005; 2005 FC 168 at para. 4.

Return to note 30 referrer

Note 31

Yusuf, supra, footnote 26.

Return to note 31 referrer

Note 32

Canada (Minister of Citizenship and Immigration) v. Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008; 2008 FC 747.

Return to note 32 referrer

Note 33

Shanmugarajah, Appiah v. M.E.I. (F.C.A., no. A-609-91), Stone, MacGuigan, Henry, June 22, 1992.

Return to note 33 referrer

Note 34

Parada, Felix Balmore v. M.C.I. (F.C.T.D., no. A-938-92), Cullen, March 6, 1995, at para. 16.

Return to note 34 referrer

Note 35

Assadi, Nasser Eddin v. M.C.I. (F.C.T.D., no. IMM-2683-96), Teitelbaum, March 25, 1997. at para. 14.

Return to note 35 referrer

Note 36

Parmar, Satnam Singh v. M.C.I. (F.C.T.D., no. IMM-838-97), Joyal, January 21, 1998; Chudinov, Nickolai v. M.C.I. (F.C.T.D., no. IMM-2419-97), Joyal, August 14, 1998; and Maximilok, Yuri v. M.C.I. (F.C.T.D., no. IMM-1861-97), Joyal, August 14, 1998.

Return to note 36 referrer

Note 37

Dirie, Abdulle Milgo v. M.C.I. (F.C.T.D., no. IMM-5428-97), Cullen, October 6, 1998.

Return to note 37 referrer

Note 38

Hatami, Arezo v. M.C.I. (F.C.T.D., no. IMM-2418-98), Lemieux, March 23, 2000, at para. 25.

Return to note 38 referrer

Note 39

Herrera, supra, footnote 24, at para. 23.

Return to note 39 referrer

Note 40

Ahoua, Wadjams Jean-Marie v. M.C.I. (F.C., no. IMM-1757-07), Blais, November 27, 2007; 2007 FC 1239, at para. 16.

Return to note 40 referrer

Note 41

Hidalgo Tranquino, Claudia Isabel v. M.C.I. (F.C., no. IMM-86-10), Mactavish, July 29, 2010; 2010 FC 793, at para. 8.

Return to note 41 referrer

Note 42

Gomez v. Canada (Minister of Citizenship and Immigration) (F.C., IMM-1412-10), Bédard, October 22, 2010, at para. 34.

Return to note 42 referrer

Note 43

Kunin, Aleksandr v. M.C.I. (F.C., no. IMM-5225-09), O'Keefe, November 4, 2010; 2010 FC 1091, at para. 20.

Return to note 43 referrer

Note 44

Aslam, Muhammad v. M.C.I. (F.C., no. IMM-3264-05), Shore, February 16, 2006; 2006 FC 189, at para. 28.

Return to note 44 referrer

Note 45

It is not unusual for claimants to engage in more than one kind of conduct that may be seen to undermine their subjective fear. For example, in Rivera, Jesus Vargas v. M.C.I. (F.C., no. IMM-5826-02), Beaudry, November 5, 2003; 2003 FC 1292, the claimant went back to work for eight months for the same employer who had had him beaten; secondly, after he left Mexico for the U.S., he made no claim during the year he lived there; and finally, he returned to his country to take a flight to Canada.

Return to note 45 referrer

Note 46

Wong, Siu Ying v. M.E.I. (F.C.A., no. A-804-90), Heald, Marceau, Linden, April 8, 1992. Reported: Wong v. Canada (Minister of Employment and Immigration) (1992), 141 N.R. 236 (F.C.A.) at para. 5.

Return to note 46 referrer

Note 47

Castillejos, Jaoquin Torres v. M.C.I. (F.C.T.D., no. IMM-1950-94), Cullen, December 20, 1994, at para. 11 and Akram, Ejaz v. M.C.I. (F.C., no. IMM-3106-03), Pinard, July 2, 2004; 2004 FC 927, at para. 5.

Return to note 47 referrer

Note 48

Hue, Marcel Simon Chang Tak v. M.E.I. (F.C.A., no. A-196-87), Marceau, Teitelbaum, Walsh, March 8, 1988; Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988 and Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugessen, Desjardins, Létourneau, March 17, 1993. Reported: Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.).

Return to note 48 referrer

Note 49

Huerta, supra, footnote 48 at 227.

Return to note 49 referrer

Note 50

Cruz v. Canada (Minister of Employment and Immigration) (F.C.T.D., no. IMM-3848-93) Simpson, June 16, 1994, at para.10.

Return to note 50 referrer

Note 51

Castillejos, supra, at footnote 47, where the Court stated, at para. 11, that delay points to a lack of subjective fear and does not relate to the objective basis of the claim.

Return to note 51 referrer

Note 52

Velez, Liliana v. M.C.I. (F.C., no. IMM-5660-09), Crampton, September 15, 2010; 2010 FC 923, at para. 28. The converse of the same principle was expressed in Abawaji, Abdulwahid Haji Hassen v. M.C.I. (F.C., no. IMM-6276-05), Mosley, September 6, 2006; 2006 FC 1065; at para. 16: "Delay in making a claim for refugee protection should not be fatal to the claim where it is supported by a reasonable explanation."

Return to note 52 referrer

Note 53

Beltran, Luis Fernando Berrio v. M.C.I. (F.C.T.D., no. IMM-829-96), Dubé, October 29, 1996.

Return to note 53 referrer

Note 54

Martinez Requena, Ericka Marlene v. M.C.I. (F.C., no. IMM-4725-06), Dawson, September 27, 2007; 2007 FC 968.

Return to note 54 referrer

Note 55

In Salguero, Erbin Salomon Rosales v. M.C.I. (F.C., no. IMM-4402-04), Mactavish, May 18, 2005; 2005 FC 716, the Court distinguishes the claimants' 16 year residence in the U.S. from the "short stays" en route to Canada referred to in para. 37 of Mendez, Alberto Luis Calderon v. (F.C., no. IMM-1837-04), Teitelbaum, January 27, 2005; 2005 FC 75.

Return to note 55 referrer

Note 56

Claimants often spend short periods of time in transit through countries where they do not seek protection. For example, in Packinathan, Lindan Lorance v. M.C.I. (F.C., no. IMM-6640-09), Snider, August 23, 2010; 2010 FC 834, the Board considered that the claimant's failure to make a claim during a two-hour stop-over in Switzerland indicated a lack of subjective fear. The Board's conclusion was held to be unreasonable, as the claimant was at all times in transit to Canada.

Return to note 56 referrer

Note 57

John, Shontel Dion v. M.C.I. (F.C., no. IMM-1683-10), Bédard, December 14, 2010; 2010 FC 1283 at para. 23.

Return to note 57 referrer

Note 58

El-Naem, Faisal v. M.C.I. (F.C.T.D., no. IMM-1723-96), Gibson, February 17, 1997. Reported: El-Naem v. Canada (Minister of Citizenship and Immigration) (1997), 37 Imm. L.R. (2d) 304 (F.C.T.D.).

Return to note 58 referrer

Note 59

Ribeiro, Wender Magno v. M.C.I. (F.C., no. IMM-8843-04), Dawson, October 11, 2005; 2005 FC 1363, at para. 11.

Return to note 59 referrer

Note 60

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.), at 162.

Return to note 60 referrer

Note 61

Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003; 2003 FC 1324, at para. 19.

Return to note 61 referrer

Note 62

Sabapathy, Thevi (F.C.T.D., no. IMM-1507-96), Campbell, March 27, 1997.

Return to note 62 referrer

Note 63

Rahim, Ziany v. M.C.I. (F.C., no. IMM-2729-04), Shore, January 18, 2005, 2005 FC 18 at para. 11.

Return to note 63 referrer

Note 64

Zuniga, Alexis Ramon Garcia v. S.C.C. (F.C.T.D., no. IMM-118-94), Teitelbaum, July 4, 1994. at para. 49 - 50. See also Singh, Sebastian Swatandra v. M.C.I. (F.C.T.D., no. IMM-3840-97), Nadon, December 7, 1998 where the Court upheld the negative finding of the CRDD based on the view that the male claimant had not made a serious attempt to leave Fiji between 1987 and 1995, conduct which undermined his subjective fear of persecution.

Return to note 64 referrer

Note 65

Gebremichael, Addis v. M.C.I. (F.C., no. IMM-2670-05), Russell, May 1, 2006; 2006 FC 547, at para. 44.

Return to note 65 referrer

Note 66

Voyvodov, Bogdan Atanassov v. M.C.I. (F.C.T.D., no. IMM-5601-98), Lutfy, September 13, 1999. at para. 10.

Return to note 66 referrer

Note 67

Shah, Mahmood Ali v. M.C.I. (F.C., no. IMM-4425-02), Blanchard, September 30, 2003; 2003 FC 1121; at para. 23.

Return to note 67 referrer

Note 68

Ibrahimov, Fikrat v. M.C.I. (F.C., no. IMM-4258-02), Heneghan, October 10, 2003; 2003 FC 1185., at para. 19.

Return to note 68 referrer

Note 69

Menjivar, Carlos Othmar Navarrete v. M.C.I. (F.C., no. IMM-9660-04), Dawson, January 6, 2006; 2006 FC 11 at para. 33.

Return to note 69 referrer

Note 70

In Mendez, supra, footnote 55, at para. 34 - 38, Justice Teitelbaum held that the Board had erred in law when it wrote that the case law was clear that persons claiming to fear persecution were required to claim in the first Convention country in which they arrived. The Court also found that the Board has not fulfilled its requirement to carefully consider the claimant's testimony.

Return to note 70 referrer

Note 71

In Ilie, Lucian Ioan v. M.C.I. (F.C.T.D., no. IMM-462-94), MacKay, November 22, 1994 the Court stated that the CRDD was entitled to take notice of the status of countries that are signatories to the Convention and may also assume that such countries will meet their obligation to implement the Convention within their own territory, unless evidence to the contrary is adduced. But in Tung, supra, footnote 21, where the claimant visited four countries en route to Canada, the Court pointed to the lack of evidence that any of the countries in question had ratified the Convention or Protocol. Although the Board was authorized to take notice of any facts that could be judicially noticed, the Board was wrong to "speculate" that refugee protection was available in those countries.

Return to note 71 referrer

Note 72

Memarpour, Mahdi v. M.C.I. (F.C.T.D., no. IMM-3113-94), Simpson, May 25, 1995, at para. 23 -24.

Return to note 72 referrer

Note 73

Mendez, supra, footnote 55, at para. 37.

Return to note 73 referrer

Note 74

Packinathan, supra, footnote 56, at para. 7.

Return to note 74 referrer

Note 75

Perez, Franklin Antonio v. M.C.I. (F.C., no. IMM-4450-09), Boivin, March 30, 2010; 2010 FC 345 at para. 19.

Return to note 75 referrer

Note 76

Bello, Salihou v. M.C.I. (F.C.T.D., no. IMM-1771-96), Pinard, April 11, 1997.

Return to note 76 referrer

Note 77

Madoui, Nidhal Abderrah v. M.C.I. (F.C.T.D., no. IMM-660-96), Denault, October 25, 1996.

Return to note 77 referrer

Note 78

Mekideche, Anouar v. M.C.I. (F.C.T.D., no. IMM-2269-96), Wetston, December 9, 1996.

Return to note 78 referrer

Note 79

Ilyas, Muhammad v. M.C.I. (F.C., no. IMM-5636-03), Russell, September 16, 2004; 2004 FC 1270.

Return to note 79 referrer

Note 80

El-Naem, supra, footnote 58.

Return to note 80 referrer

Note 81

Liblizadeh, Hassan v. M.C.I. (F.C.T.D., no. IMM-5062-97), MacKay, July 8, 1998.

Return to note 81 referrer

Note 82

Yoganathan, Kandasamy v. M.C.I. (F.C.T.D., no. IMM-3588-97), Gibson, April 20, 1998 , at para. 8.

Return to note 82 referrer

Note 83

Hue, supra, footnote 48.

Return to note 83 referrer

Note 84

Shahpari, Khadijeh v. M.C.I. (F.C.T.D., no. IMM-2327-97), Rothstein, April 3, 1998 , at para.14.

Return to note 84 referrer

Note 85

Geron, supra, footnote 29.

Return to note 85 referrer

Note 86

Bains, Gurmukh Singh v. M.C.I. (F.C.T.D., no. IMM-3698-98), Blais, April 21, 1999.

Return to note 86 referrer

Note 87

Singh, Pritam v. M.C.I. (F.C., no. IMM-2513-06), Shore, January 25, 2007; 2007 FC 62, at para. 24.

Return to note 87 referrer

Note 88

Gabeyehu, Bruck v. M.C.I. (F.C.T.D., no. IMM-863-95), Reed, November 8, 1995, at para. 7.

Return to note 88 referrer

Note 89

Tang, Xiaoming v. M.C.I. (F.C.T.D., no. IMM-3650-99), Reed, June 21, 2000, at para. 6. "His claim is a sur place claim and, therefore, the date as of which he became aware that he would allegedly face persecution on return to China is the relevant date, not the date on which he arrived in Canada."

Return to note 89 referrer

Note 90

Gyawali, Nirmal v. M.C.I. (F.C., no. IMM-926-03), Tremblay-Lamer, September 24, 2003; 2003 FC 1122.

Return to note 90 referrer

Note 91

Hue, supra, footnote 48.

Return to note 91 referrer

Note 92

Ahmad, Mahmood v. M.C.I. (F.C.T.D., no. IMM-1012-01), Tremblay-Lamer, February 14, 2002; 2002 FCT 171.

Return to note 92 referrer

Note 93

Niyonkuru, Joseph v. M.C.I. (F.C., no. IMM-4230-04), De Montigny, February 4, 2005, 2005 FC 174; Correira, Osvaldo De Matos v. M.C.I. (F.C., no. IMM-8077-04), O'Keefe, August 3, 2005, 2005 FC 1060 and Singh, supra, footnote 87.

Return to note 93 referrer

Note 94

Nijjer, Yadhwinder Singh v. M.C.I. (F.C., no. IMM-340-09), de Montigny, December 9, 2009; 2009 FC 1259, at para. 24.

Return to note 94 referrer

Note 95

Williams, Debby v. S.S.C. (F.C.T.D., no. IMM-4244-94), Reed, June 30, 1995. See also A.G.I. v. M.C.I. (F.C.T.D., no. IMM-5771-01), Kelen, December 11, 2002; 2002 FCT 1287, where the claimant made the refugee claim only after her visitor status in Canada had lapsed and immigration authorities advised her that she could base a refugee claim on her fear of persecution by her husband.

Return to note 95 referrer

Note 96

Lameen, Ibrahim v. S.S.C. (F.C.T.D., no. A-1626-92), Cullen, June 7, 1994.

Return to note 96 referrer

Note 97

Singh, Nirmal v. M.C.I. (F.C., no. IMM-7334-05), Teitelbaum, June 13, 2006, 2006 FC 743.

Return to note 97 referrer

Note 98

The word re-availment refers to voluntarily returning to the country of origin and availing oneself of the protection of that country (see IRPA, section 108(1)(a)).

Return to note 98 referrer

Note 99

Kabengele v. M.C.I. (F.C. no., IMM-1422-99), Rouleau, November 16, 2000, at para. 41.

Return to note 99 referrer

Note 100

Martinez Requena, supra, footnote 54, at para. 7.

Return to note 100 referrer

Note 101

Kanji, Mumtaz Badurali v. M.C.I. (F.C.T.D., no. IMM-2451-96), Campbell, April 4, 1997.

Return to note 101 referrer

Note 102

Caballero, Fausto Ramon Reyes v. M.E.I. (F.C.A., no. A-266-91), Marceau (dissenting), Desjardins, Létourneau, May 13, 1993. The Board and the Court took a similar view of the claimant's return to Cuba to transfer ownership of her house to prevent the government from confiscating it in Duarte, Augustina Castelanos v. M.C.I. (F.C.T.D., no. IMM-6616-02), Kelen, August 21, 2003; 2003 FCT 988.

Return to note 102 referrer

Note 103

Araya, Carolina Isabel Valenzuela v. M.C.I. (F.C.T.D., no. IMM-3948-97), Gibson, September 4, 1998

Return to note 103 referrer

Note 104

In Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.), the Court pointed out that the Immigration Appeal Board had ignored the fact that the claimant was able to obtain his passport (and exit papers) through his brother's contacts with the government.

Return to note 104 referrer

Note 105

Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592 (C.A.), at para. 36. Though the Court acknowledged that applying for immigrant visas might possibly be relevant to deciding whether a person really had a fear of persecution, it remarked that a desire to emigrate and a fear of persecution could hardly be considered mutually exclusive.

Return to note 105 referrer

Note 106

Vaitialingam v. M.C.I. (F.C., no. IMM-9445-03), O'Keefe, October 20, 2004, 2004 FCT 1459, at para. 27.

Return to note 106 referrer

Note 107

Chandrakumar v. M.E.I. (F.C.T.D., no. A-1649-92), Pinard, May 16, 1997, at para. 6.

Return to note 107 referrer

Note 108

Kurtkapan, Osman v. M.C.I. (F.C.T.D., no. IMM-5290-01), Heneghan, October 25, 2002; 2002 FCT 1114, at para. 31.

Return to note 108 referrer

Note 109

See the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, September 1979, paragraphs 94-96. Paragraph 94 provides the following definition: "A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee "sur place"." See also Chapter 7, section 7.3., sur place claims.

Return to note 109 referrer

Note 110

Herrera, Juan Blas Perez de Corcho v. M.E.I. (F.C.T.D., no. A-615-92), Noël, October 19, 1993, at para. 10. The Court upheld the Board's conclusion that the claimant had no subjective fear and was not a bona fide refugee because the basis for his alleged fear, namely speaking out against the Cuban regime after claiming refugee status in Canada, was a self-serving act intended to facilitate his refugee claim.

Return to note 110 referrer

Note 111

Asfaw, Napoleon v. M.C.I. (F.C.T.D., no. IMM-5552-99), Hugessen, July 18, 2000, at para. 4.

Return to note 111 referrer

Note 112

Zewedu, Haimanot v. M.C.I. (F.C.T.D., no. IMM-5564-99), Hugessen, July 18, 2000, at para. 5.

Return to note 112 referrer

Note 113

Ejtehadian, Mostafa v. M.C.I. (F.C., no. IMM-2930-06), Blanchard, February 12, 2007; 2007 FC 158, at para. 11.

Return to note 113 referrer

Previous | Table of Contents | Next