CHAPTER 7 - CHANGE OF CIRCUMSTANCES AND COMPELLING REASONS

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TABLE OF CONTENTS

  1. 7.1. CHANGE OF CIRCUMSTANCES
    1. 7.1.1. Standard of Proof and Criteria
    2. 7.1.2. Application
    3. 7.1.3. Reasons and Assessment of Evidence
    4. 7.1.4. Notice
    5. 7.1.5. Post-Hearing Evidence
  2. 7.2. COMPELLING REASONS
    1. 7.2.1. Applicability
    2. 7.2.2. Duty to Consider the "Compelling Reasons" Exception
    3. 7.2.3. Meaning of "Compelling Reasons"
    4. 7.2.4. Adequacy of Reasons for Decision
    5. 7.2.5. Level or Severity of Harm
    6. 7.2.6. Psychological After-Effects
    7. 7.2.7. Persecution of Others and Other Factors
  3. 7.3. SUR PLACE CLAIMS
    1. 7.3.1. Claimant's Activities Abroad
    2. 7.3.2. Changes in Country Conditions or Claimant's Personal Circumstances
  4. TABLE OF CASES

7. CHANGE OF CIRCUMSTANCES AND COMPELLING REASONS

7.1. CHANGE OF CIRCUMSTANCES

The question raised by a claim to refugee status is not whether the claimant had reasons to fear persecution in the past, but rather whether he or she now, at the time the claim is being decided, has good grounds to fear persecution in the future.Note 1 That same test is applied in cases where there have been changes in country conditions: the onus does not shift in such cases, nor does the standard of proof which the claimant is required to meet differ.Note 2

7.1.1. Standard of Proof and Criteria

As in all other refugee claims heard by the Refugee Protection Division, the test of well-foundedness found in AdjeiNote 3 applies to claims involving an assessment of changed or changing country conditions.Note 4

The Trial Division generated a considerable body of case law in which divergent positions were taken on the applicability of the so-called "Hathaway test"Note 5 in assessing claims where there have been changes in country conditions since the claimant's departure from his or her country of nationality.

The issue was clarified by the Court of Appeal in Yusuf,Note 6 which explicitly rejected the notion that there is a separate legal test by which the changed circumstances must be measured. Justice Hugessen stated for the Court:

… the issue of so-called "changed circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful", "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s. 2 of the [Immigration] Act: does the claimant now have a well-founded fear of persecution?

In the subsequent decision of the Court of Appeal in Rahman,Note 7 Justice Robertson elaborated on this issue:

This Court has previously held in Yusuf … that the issue of "changed circumstances" is essentially one of fact. Indeed, what is important is not so much the change as the actual circumstances existing in the claimant's country of origin. The question is whether those circumstances support the claimant's alleged well-founded fear of persecution.

In Fernandopulle,Note 8 the Court of Appeal confirmed that the question of changed country conditions is one of fact.

7.1.2. Application

It follows, from the foregoing, that changes that fall short of the criteria put forth by Professor Hathaway may also be relevant for an assessment of the claimant's fear of persecution and should be weighed, in the balance, along with all the other relevant evidence in the claim.Note 9

In Sukhraj Singh,Note 10 the Federal Court recognized that the documentary evidence in a particular case may not be unequivocal as to the political situation in a country, and even contradictory in certain areas. (It is up to the Refugee Protection Division to assess whether the evidence is sufficient to support its conclusion. In so doing, it can reasonably rely on evidence it considers most consistent with reality.) Moreover, improved country conditions may be found to be sufficient given the claimant's circumstances, notwithstanding the fact that there are improvements yet to be achieved.Note 11

The Trial Division, in Barreto,Note 12 held that there is no statutory requirement that compels a consideration of section 2(2)(e) of the Immigration Act - now section 108(1)(e) of the Immigration and Refugee Protection Act - when assessing whether, in light of a change in country conditions, the claimant's fear is objectively well founded. Moreover, a change in country conditions may be assessed not as an independent and overriding consideration, but as part of a blended assessment of well-foundedness along with other factors such as passage of time and lack of continued interest in the claimant by the agent of persecution.Note 13

In Penate,Note 14 a pre-Yusuf case, Justice Reed of the Trial Division provided the following guidance on the relevance of the "Hathaway criteria" in assessing the present well-foundedness of a claim:

… when a panel is weighing changed country conditions together with all the evidence in [a claimant's] case, factors such as durability, effectiveness and substantiality are still relevant. The more durable the changes are demonstrated to be, the heavier they will weigh against granting the [claimant's] claim. In addition, if a panel has in fact made a determination that status would have existed but for changed circumstances (that is, if it has voluntarily adopted that type of conceptual analysis) then a more rigorous assessment of the changed conditions following the criteria set out by Professor Hathaway will likely be appropriate.

In the following pre-Yusuf cases, where the claims would have been established but for the changes in country conditions, the dicta of the Court of Appeal indicate that a more rigorous evaluation of the effect of the changes was to be undertaken. In Ahmed,Note 15 the Court referred to "a clear indication of a meaningful and effective change which is required to expunge the objective foundation of the … claim." In Cuadra,Note 16 the Court referred to "the requirement that the change be meaningful and effective enough to render the genuine fear of the [claimant] unreasonable and hence without foundation."

The continued relevance of the "Hathaway factors" was underscored in the post-Yusuf case of Vodopianov,Note 17 which overturned a CRDD decision as inadequate because there was no analysis of the meaningfulness, effectiveness and durability of the recent changes in that country. In another case, the Court overturned an RPD decision for not having considered the stability and probability of continuation of the change in country conditions, given the unstable political history of that country.Note 18

Where the changes invoked relate to the personal circumstances of an individual for which that individual claimed refugee status, the Trial Division held (in the context of a cessation application) that the Minister does not have the burden of showing that the agent of persecution had changed and that the change was durable. It is sufficient that the Board be satisfied that the change of circumstances is significant and effective.Note 19 A similar approach was taken by the Federal Court in Campos Umana,Note 20 where the Board rejected a claim for protection because the change in the claimant's personal circumstances was meaningful and effective enough to render the claimant's fear unreasonable and without foundation.

Although the Refugee Protection Division may find, in appropriate cases, that even recent changes are sufficient to remove the basis of the claimant's fear of persecution,Note 21 it should not rely on or give much, if any, weight to changes that are short-lived, transitory, inchoate, tentative, inconsequential or otherwise ineffective in substance or implementation.Note 22

Finally, the case law is clear that the changes which are being relied on as removing the reasons for the claimant's fear of persecution are not assessed in the abstract but for their impact on the claimant's particular situation.Note 23

7.1.3. Reasons and Assessment of Evidence

The Court of Appeal pointed out in Ahmed,Note 24 that it is not sufficient for the Board to simply state that a change has taken place (e.g. the declarations of a new government), "without more explanation to establish that the appropriate legal principles were applied." Where the changes are very recent, the evidence must be subjected to a detailed analysis to determine whether this change is significant enough to eliminate the claimant's fear.Note 25

In the decision of Mohamed,Note 26 Justice Denault of the Trial Division set out the following helpful checklist or approach:

… when making a finding on the issue of changes in circumstances the tribunal must, at least, turn its mind to the objective basis of the [claimant's] fear of persecution, the alleged agents of persecution and the form or nature of the persecution feared in order to properly evaluate the effect of the change. This evaluation must relate to the particular circumstances of the [claimant] and the tribunal should provide a clear indication or explanation for its finding.

Although there is no requirement to cite every piece of evidence before it, the Refugee Protection Division's reasons should demonstrate that it was not unduly selective, but rather has considered all of the relevant evidence, both that which supports a conclusion of changed country conditions and that which does not, in reaching its decision.Note 27 Moreover, before arriving at a conclusion on the impact of the changes on the claim the Board should have received evidence that relates specifically to the basis of the claimant's fear of persecution.Note 28

7.1.4. Notice

The Trial Division has held that if a change in circumstances is to be relied on in the Board's reasons, the issue must be raised or notice must be given at the hearing.Note 29 However, in Alfarsy,Note 30 the Federal Court held that there was no obligation on the Board to do more than indicate that objective basis was an issue, since claimants should be aware that the definition of a Convention refugee is forward looking and can present evidence at the time of the hearing that an objective basis existed because the changes were not effective and durable.

7.1.5. Post-Hearing Evidence

There is no obligation on the Refugee Protection Division to consider post-hearing evidence relating to changes in country conditions unless that evidence has been submitted by the claimant,Note 31 and accepted by the panel,Note 32 before the panel renders a final decision on the claim.

The Refugee Protection Division may, on its own motion, provide additional documents and reconvene a hearing into a claim that has not been concluded with a final decision, to hear evidence relating to changes in country conditions.Note 33

7.2. COMPELLING REASONS

7.2.1. Applicability

In the ObstojNote 34 decision, the Court of Appeal considered the issue of the applicability of the exception found in section 2(3) of the Immigration Act ("compelling reasons arising out of any past persecution for refusing to avail …"), and held that this provision can be properly considered by the Refugee Division in hearings under section 69.1 of that Act.Note 35

This principle continues to apply under the Immigration and Refugee Protection Act (IRPA), where a similarly worded "compelling reasons" provision is found in section 108.

108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: …

(e) the reasons for which the person sought refugee protection have ceased to exist. …

(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

In Isacko,Note 36 the Federal Court stated that section 108(4) of IRPA is very similar to section 2(3) of the Immigration Act and therefore, the jurisprudence that has developed with respect to section 2(3) of the former Act may be used as guidance in the interpretation of section 108(4) of IRPA. (The difference between the two provisions is that, under IRPA, "compelling reasons" may arise out of previous persecution, torture, treatment or punishment, while the Immigration Act referred only to previous persecution.)

In applying sections 96 and 97 of IRPA, the Federal Court has held that the compelling reasons exception only applies when there has been a determination that the person was a Convention refugee or a person in need of protection, and also that the conditions that led to that finding no longer exist.Note 37 The Court rejected the notion that section 108(4) applies only if refugee protection has actually been conferred.Note 38

In order for the "compelling reasons" exception to apply the claimant does not need to show a subsisting well-founded fear of persecution or an ongoing subjective fear of persecution.Note 39 However, the claimant must first establish that he or she has suffered, at some point in the past, a form of persecution, torture or cruel and unusual treatment or punishment.Note 40

The "compelling reasons" exception arises only when the reasons for which the person sought protection "have ceased to exist". Therefore, there must be a change in circumstances to trigger the consideration of this exception. In Cortez,Note 41 the Trial Division held that the applicability of section 2(2)(e) and 2(3) of the Immigration Act was dependent on a finding that the claimant had a well-founded fear of persecution when the person left his or her country of nationality. The reasons for one's fear of persecution have to have ceased thereafter for the compelling reasons exception to be triggered.Note 42

This interpretation was adopted by the Court of Appeal in Cihal,Note 43 where the Court confirmed that the CRDD was not required to consider whether past persecution constitutes compelling reasons under section 2(3) of the Immigration Act, where it determines that the claimant was not a Convention refugee at the time of departure from the country of nationality. The same approach would prevail under the Immigration and Refugee Protection Act.

In Corrales,Note 44 the Trial Division held that since the CRDD never made a determination that the claimant was a Convention refugee, having found that state protection was available in her country, there was no need for it to consider compelling reasons. The exception does not apply where the Board determines that the claimant has not established that they were at risk.Note 45 Thus, the "compelling reasons" exception need only be considered where the determination of the claim is based, in whole or part, on a change in country conditions.Note 46

In Guzman,Note 47 the CRDD found, primarily based on the long delay in making their claims, that the claimants lacked a subjective fear. The Trial Division held that the fact that the CRDD then went on to consider changed country conditions, as an additional reason for which to reject the claim, did not eliminate or undermine its earlier finding that the claimants had no subjective fear of persecution. Justice Rothstein reasoned that:

paragraph 2(2)(e) and subsection 2(3) [of the Immigration Act, i.e., the "compelling reasons" exception] only come into play if there is a finding that the [claimants], at least at one time, were Convention refugees. I think this includes a finding that at one time they would have met the definition of Convention refugee. In the present case, there is no such finding.

The "compelling reasons" exception does not arise where a claimant's factual evidence is not believed.Note 48 Nor does it apply where the claimant has not established a nexus between the fear and one of the grounds contained in the Refugee Convention.Note 49 (The latter case was decided under the Immigration Act; IRPA now allows a claim to be based on the additional grounds set out in section 97(1) of that Act.)

A determination that the claimant had an internal flight alternative (IFA) when he left his or her country would preclude the application of the "compelling reasons" exception, since the person could not have been determined to be a Convention refugee.Note 50 In Moore,Note 51 the Trial Division held that the terms of reference for applying section 2(3) of the Immigration Act are changes in country conditions, and not changes in the personal circumstances of an individual claimant. The wording of that provision and section 108(1)(e) of IRPA, however, does not suggest that the changes are restricted to changes in country conditions.

7.2.2. Duty to Consider the "Compelling Reasons" Exception

In Yamba,Note 52 the Court of Appeal clarified the law in this area when it stated:

In summary, in every case in which the Refugee Division concludes that a claimant has suffered past persecution, but [there] has been a change of country conditions under paragraph 2(2)(e) [of the Immigration Act], the Refugee Division is obligated under subsection 2(3) to consider whether the evidence presented establishes that there are "compelling reasons" as contemplated by that subsection. This obligation arises whether or not the claimant expressly invokes subsection 2(3). That being said the evidentiary burden remains on the claimant to adduce the evidence necessary to establish that he or she is entitled to the benefit of that subsection.

The same principle would hold true with regard to section 108(4) of the Immigration and Refugee Protection Act.

It follows, therefore, that where the Board does not find that the claimant has suffered past persecution, it is under no obligation to consider the compelling reasons exception.

In Alfaka Alharazim,Note 53 the Court provided the following guidance on this issue:

[31] … it is settled law that the RPD is entitled to proceed directly to a forward-looking assessment of whether the applicant for refugee protection has a well-founded fear of future persecution, without first making a determination of whether a person has suffered past persecution and, if so, whether subsection 108(4) applies. …

[44] That said, given the underlying spirit of subsection 108(4), I agree with the [claimants] that there may be some situations in which the nature of past persecution is so severe that it would be contrary to that spirit and a reviewable error for anyone reviewing an application for refugee protection in such situations to fail to consider the potential applicability of that provision, notwithstanding the settled law that the focus of the assessment to be made under sections 96 and 97 of the IRPA is forward-looking in nature.

[53] … it is appropriate to confine that category of situations to those that in which there is prima facie evidence of "appalling" or "atrocious" past persecution. In those cases, a decision-maker under the IRPA is required to perform an assessment under subsection 108(4) of the IRPA. In all other cases, a decision-maker may exercise discretion as to whether to perform such an assessment.

7.2.3. Meaning of "Compelling Reasons"

In Obstoj,Note 54 Justice Hugessen of the Court of Appeal held that section 2(3) of the Immigration Act - now section 108(4) of the Immigration and Refugee Protection Act - should be read

as requiring Canadian authorities to give recognition of refugee status on humanitarian grounds to this special and limited category of persons, i.e. those who have suffered such appalling persecution that their experience alone is compelling reason not to return them, even though they may no longer have any reason to fear further persecution.

The phrase "appalling persecution" in this context harks back to paragraph 136 of the UNHCR Handbook, which states in part:

It [i.e., the "compelling reasons" exception] deals with the special situation where a person may have been subjected to very serious persecution in the past and not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. … The exception, however, reflects a more general humanitarian principle, which could also be applied to refugees other than statutory refugees. It is frequently recognized that a person who—or whose family—has suffered under atrocious forms of persecution should not be expected to repatriate.

Justice Hugessen went on to state, in Obstoj (at 748), that "[t]he exceptional circumstances envisaged by subsection 2(3) [of the Immigration Act] must surely apply only to a tiny minority of present day claimants."Note 55

The case law indicates that the threshold necessary to demonstrate "compelling reasons" is a high one. In Nimo Ali Hassan, Justice Rothstein stated:

While many refugee claimants might consider the persecution they have suffered to fit within the scope of subsection 2(3) [of the Immigration Act] it must be remembered that the nature of all persecution, by definition, involves death, physical harm or other penalties. Subsection 2(3), as it has been interpreted, only applies to extraordinary cases in which the persecution is relatively so exceptional, that even in the wake of changed circumstances, it would be wrong to return refugee claimants.Note 56
The issue as to whether "compelling reasons" exist in a given case is a question of fact.Note 57 Each case must be assessed and decided on its own merits, based on the totality of the evidence.Note 58 However, the delineation of the concept of "compelling reasons" is a question of law.Note 59

In Shahid,Note 60 the Federal Court set out the relevant considerations for determining whether "compelling reasons" exist:

The board, once it embarked upon the assessment of the applicant's claim under subs. 2(3) [of the Immigration Act], had the duty to consider the level of atrocity of the acts inflicted upon the applicant, the repercussions upon his physical and mental state, and determine whether this experience alone constituted a compelling reason not to return him to his country.

7.2.4. Adequacy of Reasons for Decision

In Adjibi,Note 61 the Trial Division stressed that the reasons given by the CRDD for concluding that section 2(3) of the Immigration Act does not apply must be adequate. In that case, the reasons of the CRDD were simply that there was "insufficient evidence" to warrant the application of section 2(3). The Court found that it was not clear what the panel meant when it spoke of "insufficient evidence". Secondly, the panel must provide a sufficiently intelligible explanation as to why persecutory treatment does not constitute compelling reasons. (The claimant was found to have been raped repeatedly and was diagnosed with Post-Traumatic Stress Disorder.) This requires thorough consideration of the level of atrocity of the acts inflicted upon the claimant, the effect on her physical and mental state, and whether the experiences and their sequelae constitute a compelling reason not to return her to her country of origin.Note 62

The Refugee Protection Division is required to assess whether or not the nature of the persecution in a particular case before it constitutes "compelling reasons", and it must explain why the reprehensible treatment, does or does not meet the requirements of section 108(4) of IRPA.Note 63 Thus, if the Board finds the treatment received by the claimant to be "revolting" or "vile and reprehensible", as it did in Biakona,Note 64 it should go on to state (which it failed to do in that case) why it concluded that the acts committed cannot be considered compelling reasons.

7.2.5.Level or Severity of Harm

The Federal Court jurisprudence is not consistent on the issue of whether the previous persecution (or treatment under section 97(1) of IRPA) must reach the level of being "atrocious" or "appalling" for the "compelling reasons" exception to apply. The standard imported by words such "atrocious" and "appalling" (this language is found in the Court of Appeal decision in Obstoj and the UNHCR Handbook) has been applied in numerous Federal Court decisions to describe the level of past persecution required for "compelling reasons", for example, Arguello-Garcia, Hassan, Shahid, Nwazoor, Isacko, Saimir Kulla, among others. One case held that the words "appalling" and "atrocious" are proper interpretative aids to guide the Board (Adjibi). Another line of cases, however, has questioned whether the Obstoj decision established such a test or has held that it did not: Hasan Kulla, Dini, Elemah, Suleiman, Kotorri. In Shapti,Note 65 the Court stated, in obiter, that there is no jurisprudence that raises a doubt about the correctness of the "appalling and atrocious" test.

In Alfaka Alharazim,Note 66 the Court provided the following guidance on this issue:

[31] … it is settled law that the RPD is entitled to proceed directly to a forward-looking assessment of whether the applicant for refugee protection has a well-founded fear of future persecution, without first making a determination of whether a person has suffered past persecution and, if so, whether subsection 108(4) applies. …

[44] That said, given the underlying spirit of subsection 108(4), I agree with the [claimants] that there may be some situations in which the nature of past persecution is so severe that it would be contrary to that spirit and a reviewable error for anyone reviewing an application for refugee protection in such situations to fail to consider the potential applicability of that provision, notwithstanding the settled law that the focus of the assessment to be made under sections 96 and 97 of the IRPA is forward-looking in nature.

[53] … it is appropriate to confine that category of situations to those that in which there is prima facie evidence of "appalling" or "atrocious" past persecution. In those cases, a decision-maker under the IRPA is required to perform an assessment under subsection 108(4) of the IRPA. In all other cases, a decision-maker may exercise discretion as to whether to perform such an assessment.

In Arguello-Garcia, in assessing the "objective factors" (i.e., the nature and severity of the claimant's experiences), the Trial Division turned to dictionary definitions of "atrocious" and "appalling" for guidance on the issue of what may be considered sufficiently serious persecution to find "compelling reasons".Note 67

In Hasan Kulla,Note 68 however, the Court held that the issue is not whether the claimant's past experience could be characterized as "atrocious" and "appalling", descriptions found in other jurisprudence, but rather, as Justice Reed stated in Dini:Note 69 "If the person establishes there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left."

In a subsequent judicial review of Dini, it was argued that Justice Reed implicitly determined that under section 2(3) of the Immigration Act, the treatment might not have to reach the level of "appalling" or "atrocious". The confusion in the case law of the Trial Division regarding the issue of the proper test to assess "compelling reasons" led the Court to certify a question.Note 70 Subsequently, in Elemah,Note 71 the Trial Division held that Obstoj did not establish a test which necessitates that the persecution reach a level to qualify it as "atrocious" and "appalling".

More recently, in Adjibi,Note 72 the Trial Division concluded that it did not have to consider whether in every case the standard of "compelling reasons" is subsumed in an inquiry into prior "appalling" and "atrocious" persecution. In view of the evidence before the CRDD (the claimant had been raped repeatedly), the words "appalling" and "atrocious" were proper interpretative aids to guide the CRDD as to whether the evidence supported the claimant's submission that compelling reasons existed not to return her to her country.

The issue arose again in Suleiman,Note 73 where the Federal Court reiterated that section 104(8) of IRPA does not require a determination that the acts or situation be "atrocious" or "appalling". The issue is whether, considering the totality of the situation, i.e., humanitarian grounds, unusual or exceptional circumstances, it would be wrong to reject the claim in the wake of a change of circumstances. Consideration should be given to the claimant's age, cultural background and previous social experiences. Being resilient to adverse conditions will depend on a number of factors which differ from one individual to another. Past acts of torture and extreme acts of mental abuse, alone, in view of their gravity and seriousness, can be considered "compelling reasons" despite the fact that these acts have occurred many years before.

There does not appear to be support in the jurisprudence for the proposition, advanced in Suleiman, that where objectively the persecution may not be considered grave or serious enough alone, it may in the particular circumstances of the claimant, given his or her subjective state of mind, nevertheless give rise to compelling reasons.

7.2.6. Psychological After-Effects

Evidence - usually in the form of a medical report or psychological assessment - of present psychological and emotional suffering can be used to demonstrate that the claimant continues to suffer the effects of past persecution. Evidence of continuing psychological after-effects, or its absence,Note 74 is relevant to a determination of whether there are compelling reasons, however, the existence of such evidence is not a separate test that has to be met.

In Arguello-Garcia, the Federal Court stated that in considering the particular persecution experienced, as well as the reasons for it, the Board should also take into account the negative or psychological effect of past persecution.Note 75 Since such evidence is supportive of the existence of compelling reasons, it should not be disregarded.

In Jiminez,Note 76 Justice Rouleau held that the jurisprudence does not support the proposition that there is a further requirement of establishing continuing psychological after-effects of previous persecution, once there is evidence the claimant suffered "atrocious" or "appalling" acts of persecution. While evidence of continuing psychological after-effects is relevant to a determination of the issue, it is not a separate test that has to be met.

In Hinson,Note 77  the Court stated: "The criteria to be considered are the psychological and emotional states of the claimant both at the time of the persecution and at the present time as a result of the persecution." It then directed the CRDD to consider "the negative or psychological effects of past persecution as well as present psychological and emotional suffering as a result of past persecution."

In Hitimana,Note 78 although the claimant contended that the incidents he had experienced resulted in trauma (as a teenager, 5-7 years before his arrival in Canada, he witnessed the murder and disappearance of close family members in Rwanda), neither he nor an expert substantiated this statement. Moreover, as the claimant demonstrated that he could adapt well and was resourceful, it was not patently unreasonable to conclude that he was not suffering from any psychological trauma that constituted a compelling reason.

If the Refugee Protection Division accepts the claimant's description of his or her treatment, and the medical and psychological reports are consistent with that description, a delay in seeking medical treatment does not appear be a relevant factor.Note 79

7.2.7. Persecution of Others and Other Factors

The Trial Division has also held that the CRDD (now the Refugee Protection Division) may take into account the experiences of family members in its assessment of "compelling reasons."Note 80 According to Velasquez, persecution of a family member can of itself be sufficient to constitute "compelling reasons".Note 81 However, the obiter comment in Velasquez was not followed in Saimir Kulla,Note 82 where the Federal Court held that the claimant must suffer the mistreatment directly. In the most recent case of Villegas Echeverri,Note 83 the Court referred to paragraph 136 of the UNHCR Handbook and noted that the past persecution contemplated in the second paragraph of Article C(5) of the Convention (which is equivalent to s.108(4) of IRPA) extends to persecution of family members of the refugee claimant. As the Court explains in paragraph 37:

…where the prima facie evidence of "appalling" or "atrocious" past persecution concerns the past persecution of an immediate family member, there must also be credible evidence that could establish either some direct past persecution of the specific applicant for refugee protection, or persecution of that person's family as a social group.

The subsistence of certain attitudes among the general population is not a necessary condition for the application of the provision.Note 84 The generalized character of past persecution in a particular country should not serve as a bar to the application of the "compelling reasons" exception.Note 85 A brief return to the country of alleged persecution does not necessarily preclude the application of the "compelling reasons" exception.Note 86

In Adjibi,Note 87 the Trial Division held that the CRDD was not obliged to consider section 2(3) of the Immigration Act in respect of the incidents that took place when the claimant, a national of the Congo, resided in South Africa. Persecutory treatment in another country cannot justify a refusal to avail oneself of the protection of one's home country. However, these events may exaggerate or amplify the effect of the persecutory conduct, and the Board must take refugee claimants as they are at the time of the hearing before the Board in order to determine whether the claimant should not be expected to repatriate. In this case, the CRDD would properly have had regard to the cumulative effect on the claimant of the events she experienced both in the Congo and South Africa.

7.3. SUR PLACE CLAIMS

A claimant may be a refugee as a consequence of events which have occurred in his or her country of origin since departure,Note 88 or because of a significant intensification of pre-existing factors since departure from his or her country.Note 89

Claims may also be advanced based, in whole or part, on the activities of the claimant since leaving his or her country.Note 90

A tribunal is not required to deal with the issue of whether the claimant is a refugee sur place where it determines that the basis of the claim is not credible.Note 91

7.3.1. Claimant's Activities Abroad

According to paragraph 96 of the UNHCR Handbook, the key issues in cases based on the claimant's activities since leaving his or her home country are "whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities." Even though a claimant's actions subsequent to departure may have come to the attention of the authorities there, it may nevertheless be that, in the circumstances, those actions do not give rise to a well-founded fear of persecution.Note 92

In Wang,Note 93 the Trial Division held that a sur place could not be maintained in the absence of evidence that the making of the refugee claim had specifically come to the attention of the authorities of the claimant's country of origin.

In Ghribi,Note 94 the Court found the claimant's testimony concerning the Canadian Minister's public statements about Tunisian refugee claimants and the consequent response of the Tunisian authorities in Canada and in Tunisia to be highly speculative, and thus there was insufficient evidence to establish that they would have the alleged impact so as to support a claim of refugee sur place.

On the other hand, in Zhu,Note 95 the Trial Division held that once the evidence established that the claimant's information was given to counsel for the accused, and filed in evidence at a public trial in Canada and in publicly accessible court records, it was patently unreasonable for the CRDD to suggest that further evidence was required to establish that the information actually came to the attention of a potential agent of persecution in the claimant's country of origin. In the Court's view, that is too high a requirement to establish more than a mere possibility of persecution.

More recently, in Win,Note 96 the Court held that the standard to be used in assessing evidence relating to a sur place claim is likelihood, or balance of probabilities, that is, whether the claimant's activities were likely to come to the attention of the authorities of his or her country. In another case,Note 97 however, the Court appears to state the test as "might come to the attention" of state authorities.

Where claims are based on the claimant's activities abroad, some decisions of the Trial Division have focused on the issue of the bona fides or motivation of the claimant and have found that the claimant did not have a subjective fear of persecution.Note 98

On the other hand, in Ngongo,Note 99 the Trial Division cited with approval the following passage from Professor Hathaway's The Law of Refugee Status:

It does not follow, however, that all persons whose activities abroad are not genuinely demonstrative of oppositional political opinion are outside the refugee definition. Even when it is evident that the voluntary statement or action was fraudulent in that it was prompted primarily by an intention to secure asylum, the consequential imputation to the claimant of a negative political opinion by authorities in her home state may nonetheless bring her within the scope of the Convention definition. Since refugee law is fundamentally concerned with the provision of protection against unconscionable state action, an assessment should be made of any potential harm to be faced upon return because of the fact of the non-genuine political activity engaged in while abroad.Note 100

In Asfaw,Note 101 the Trial Division held that while it is relevant to examine the motives underlying a claimant's participation in demonstration against his government in Canada in order to determine whether the claimant has a subjective fear, it would be an error for the CRDD to stop the analysis there as it is also necessary to examine whether or not the fear has an objective basis.

In Ghasemian,Note 102 the Federal Court held that, once the Board accepted that the claimant had converted to Christianity while in Canada and now risked severe punishment in Iran as an apostate, it had to consider whether the claimant would be viewed as an apostate regardless of the motive for her conversion. While it was open to the Board to reject her sur place claim on the basis of a lack of subjective fear, the Board misconstrued her evidence regarding her alleged lack of fear of reprisals and applied the wrong test by rejecting her claim on the basis that it was not made in good faith, i.e., she did not convert for a purely religious motive. The Court followed the reasoning of the English Court of Appeal in Danian,Note 103 that opportunistic claimants are still protected under the Convention if they can establish a genuine and well-founded fear of persecution for a Convention ground.

The Court adopted a similar approach in two subsequent decisions involving Iranian claimants who had converted from the Muslim faith, holding that it is necessary to consider the credible evidence of the claimant's activities while in Canada, independently from their motive. Even if the motives are not genuine, the consequential imputation of religious or political beliefs to the claimant by the authorities of their country, may nonetheless be sufficient to bring the claimant within the scope of the Convention refugee definition.Note 104 However, the Board may still be able to find, in appropriate cases, that the claimant's activities were not likely to come to the attention of anyone in their country,Note 105 or that the claimant would not likely engage in such activities on return to their country.Note 106

In Kammoun,Note 107 the claimant had voluntarily approached representatives from his country in Canada. The Court held that the proper inquiry was whether the claimant's denouncement, albeit voluntary, of the Tunisian authorities in Canada could cause a negative reaction on the part of the authorities and, as a result, cause a risk should the claimant return.

With respect to exit laws, however, in Zandi,Note 108 the Court followed ValentinNote 109 in holding that a defector cannot gain legal status in Canada under IRPA by creating a "need for protection" under section 97 by freely, of their own accord and with no reason, making themselves liable to punishment by violating a law of general application in their home country about complying with exit laws.

Evidence of political activities in Canada should be considered by the panel whether or not the claimant specifically raises a sur place claim.Note 110 However, where the decision is under reserve, the onus is on the claimant to request a reconvening of the hearing (before a final decision on the claim has been rendered) in order to consider the impact that any newly alleged sur place basis to the claim might have.Note 111

7.3.2. Changes in Country Conditions or Claimant's Personal Circumstances

The fact that the claimant's departure from his or her homeland may have been perfectly legal is not relevant when considering a sur place possibility. What is required is an assessment of the situation in the country of origin after the claimant left it.Note 112

In Tang,Note 113 the Trial Division pointed out that, in the case of a sur place claim, the relevant date to assess a delay in making a refugee claim is the date as of which the claimant became aware that he or she would allegedly face persecution on return to the country of nationality, and not the date on which the claimant arrived in Canada.

In Makala,Note 114 the Trial Division considered the applicability of paragraph 82 of the UNHCR Handbook, which states:

There may, however, also be situations in which the applicant has not given any expression to his opinions. Due to the strength of his convictions, however, it may be reasonable to assume that his opinions will sooner or later find expression and that the applicant will, as a result, come into conflict with the authorities. Where this can reasonably be assumed, the applicant can be considered to have fear of persecution for reason of political opinion.

The Court found that the CRDD's erroneous finding that the claimant was not politically involved while in Congo may have impacted on its appreciation of the strength of the claimant's political convictions and potential actions against the government upon return to Congo.

In Nthoubanza,Note 115 on the other hand, the Trial Division upheld the CRDD's finding that there was no evidence that the claimant would reasonably be likely to become a human rights activist or to express his political opinion if he returned to his country, given that he had not been a human rights or political activist under the previous regime.

A claimant may become a refugee sur place by virtue of the actions of Canadian authorities in that person's home country.Note 116

TABLE OF CASES

  1. A. B. v. M.C.I. (F.C., no. IMM-3497-08), Gibson, March 27, 2009; 2009 FC 325. Reported: A.B. v. Canada (Minister of Citizenship and Immigration), [2010] 2 F.C.R. 75 (F.C.)
  2. Abarajithan, Paramsothy v. M.E.I. (F.C.A., no. A-805-90), Stone, MacGuigan, Linden, January 28, 1992
  3. Abdul, Gamel v. M.C.I. (F.C.T.D., no. IMM-1796-02), Snider, February 28, 2003; 2003 FCT 260
  4. Adaros-Serrano, Maria Macarena v. M.E.I. (F.C.T.D., no. 93-A-124), McKeown, September 31, 1993. Reported: Adaros-Serrano v. Canada (Minister of Employment and Immigration) (1993), 22 Imm. L.R. (2d) 31 (F.C.T.D.)
  5. Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.)
  6. Adjibi, Marcelle v. M.C.I. (F.C.T.D., no. IMM-2580-01), Dawson, May 8, 2002; 2002 FCT 525
  7. … 7-15, 7-17, 7-20
  8. Agyakwah, Elizabeth Lorna v. M.E.I. (F.C.T.D., no. A-7-93), McKeown, December 10, 1993
  9. Ahmed, Ali v. M.E.I. (F.C.A., no. A-89-92), Marceau, Desjardins, Décary, July 14, 1993. Reported: Ahmed v. Canada (Minister of Employment and Immigration) (1993), 156 N.R. 221 (F.C.A.)
  10. Ahmed, Jawad v. M.C.I. (F.C., no. IMM-6673-03), Mosley, August 5, 2004; 2004 FC 1076
  11. Alam, Mohammed Mahfuz v. M.C.I. (F.C.T.D., no. IMM-4883-97), McGillis, October 7, 1998
  12. Alfaka Alharazim, Suleyman v. M.C.I. (F.C., no. IMM-1828-09), Crampton, October 22, 2010; 2010 FC 1044
  13. Alfarsy, Asma Haidar Jabir v. M.C.I. (F.C., no. IMM-3395-02), Russell, December 12, 2003; 2003 FC 1461
  14. Ali, Ismail Farah v. M.E.I. (F.C.T.D., no. A-1095-92), Noël, November 2, 1993
  15. Alza, Julian Ulises v. M.C.I. (F.C.T.D., no. IMM-3657-94), MacKay, March 26, 1996
  16. André, Marie-Kettelie v. M.E.I. (F.C.T.D., no. A-1444-92), Dubé, October 24, 1994
  17. Antonio, Neto Xavier v. M.C.I. (F.C.T.D., no. A-472-92), Noël, January 27, 1995
  18. Aragon, Luis Roberto v. M.E.I. (F.C.T.D., no. IMM-4632-93), Nadon, August 12, 1994
  19. Arguello-Garcia, Jacobo Ignacio v. M.E.I. (F.C.T.D., no. 92-A-7335), McKeown, June 23, 1993. Reported: Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.)
  20. Asaolu: M.C.I. v. Asaolu, Daniel Oluwafemi (F.C.T.D., no. IMM-237-98), Campbell, July 31, 1998. Reported: Canada (Minister of Citizenship and Immigration) v. Asaolu (1998), 45 Imm. L.R. (2d) 190 (F.C.T.D.)
  21. Asfaw, Napoleon v. M.C.I. (F.C.T.D., no. IMM-5552-99), Hugessen, July 18, 2000
  22. Ayankojo, Isaac Olymuyiwa Olaoluwa v. M.C.I. (F.C.T.D., no. 3877-99), Reed, June 8, 2000
  23. Barreto, Hugo Cesar Ghan v. M.C.I. (F.C.T.D., no. IMM-3987-94), Wetston, June 7, 1995
  24. Barry, Abdoulaye v. M.C.I. (F.C.T.D., no. IMM-573-01), Pinard, February 26, 2002; 2002 FCT 203
  25. Belozerova, Natalia v. M.C.I. (F.C.T.D., no. IMM-912-94), Simpson, May 25, 1995
  26. Bhardwaj, Shanti Parkash v. M.C.I. (F.C.T.D., no. IMM-240-98), Campbell, July 27, 1998. Reported: Bhardwaj v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 192 (F.C.T.D.)
  27. Bhuiyan, Nazrul Islam v. M.E.I. (F.C.T.D., no. 92-A-6737), MacKay, September 13, 1993
  28. Biakona, Leonie Bibomba v. M.C.I. (F.C.T.D., no. IMM-1706-98), Teitelbaum, March 23, 1999
  29. Boateng, Joseph Kwaku v. M.E.I. (F.C.T.D., no. 92-A-6560), Noël, May 4, 1993
  30. Brovina, Qefsere v. M.C.I. (F.C., no. IMM-2427-03), Layden-Stevenson, April 29, 2004; 2004 FC 635
  31. Cai, Heng Ye v. M.C.I. (F.C.T.D., no. IMM-1088-96), Teitelbaum, May 16, 1997
  32. Campos Umana, Cesar Emilio v. M.C.I. (F.C.T.D., no. IMM-1434-02), Snider, April 2, 2003; 2003 FCT 393
  33. Castellanos, Julio Alfredo Vaquerano v. M.C.I. (F.C.T.D., no. IMM-2082-94), Gibson, October 18, 1994. Reported: Castellanos v. Canada (Minister of Citizenship and Immigration) (1994), 30 Imm. L.R. (2d) 77 (F.C.T.D.)
  34. Chaudary, Imran Akram v. M.C.I. (F.C.T.D., no. IMM-2048-94), Reed, May 4, 1995
  35. Chaudri, Tahir Ahmad Nawaz v. M.E.I. (F.C.A., no. A-1278-84), Thurlow, Hugessen, McQuaid, June 5, 1986. Reported: Chaudri v. Canada (Minister of Employment and Immigration) (1986), 69 N.R. 114 (F.C.A.)
  36. Chen, Hanqi v. M.C.I. (F.C., no. IMM-5203-08), de Montigny, June 29, 2009; 2009 FC 677
  37. Chen, Kang v. S.G.C. (F.C.T.D., no. A-1176-91), Gibson, August 6, 1993
  38. Chowdhury, Hasan Mahmud v. M.C.I. (F.C., no. IMM-7284-05), Mosley, March 4, 2008; 2008 FC 290
  39. Chowdhury, Mashiul Haq v. M.E.I. (F.C.T.D., no. 92-A-6565), Noël, June 2, 1993
  40. Cihal, Pavla v. M.C.I. (F.C.A., no. A-54-97), Stone, Evans, Malone, May 4, 2000
  41. Corrales, Maria Cecilia Abarca v. M.C.I. (F.C.T.D., no. IMM-4788-96), Reed, October 3, 1997
  42. Cortez, Delmy Isabel v. S.S.C. (F.C.T.D., no. IMM-2482-93), McKeown, December 15, 1993
  43. Cuadra, Walter Antonio v. S.G.C. (F.C.A., no. A-179-92), Isaac, Marceau, Linden, July 20, 1993. Reported: Cuadra v. Canada (Solicitor General) (1993), 157 N.R. 390 (F.C.A.)
  44. Danian v. Secretary of State for the Home Department, [1999] E.W.J. No. 5459 online: QL
  45. Diallo, Abdou Salam v. M.C.I. (F.C.T.D., no. A-1157-92), Noël, June 8, 1995
  46. Diamanama, Nsimba v. M.C.I. (F.C.T.D., no. IMM-2288-97), Richard, June 23, 1998
  47. Dini, Majlinda v. M.C.I. (F.C.T.D., no. IMM-2596-00), Gibson, March 22, 2001
  48. Dini, Majlinda v. M.C.I. (F.C.T.D., no. IMM-3562-98), Reed, June 24, 1999
  49. Doganian, Rafi Charvarch v. M.E.I. (F.C.A., no. A-807-91), Hugessen, MacGuigan, Décary, April 26, 1993
  50. Dolamore: M.C.I. v. Dolamore, Jessica Robyn (F.C.T.D., no. IMM-4580-00), Blais, May 1, 2001; 2001 FCT 421
  51. E.T. v. S.S.C. (F.C.T.D., no. IMM-3380-94), Gibson, June 1, 1995; [1995] F.C.J. No. 857
  52. Ejtehadian, Mostafa v. M.C.I. (F.C., no. IMM-2930-06), Blanchard, February 12, 2007; 2007 FC 158
  53. El-Bahisi, Abdelhady v. M.E.I. (F.C.T.D., no. A-1209-92), Denault, January 4, 1994
  54. Elemah, Paul Omorogbe v. M.C.I. (F.C.T.D., no. IMM-2238-00), Rouleau, July 10, 2001
  55. Emnet, Angeset Woldmichael v. M.E.I. (F.C.T.D., no. 93-A-182), MacKay, August 27, 1993
  56. Fernandopulle, Eomal v. M.C.I. (F.C.A., no. A-217-04). Sharlow, Nadon, Malone, March 8, 2005; 2005 FCA 91
  57. Ghasemian, Marjan v. M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003; 2003 FC 1266
  58. Ghazizadeh, Reza v. M.E.I. (F.C.A., no. A-393-90), Hugessen, MacGuigan, Décary, May 17, 1993. Reported: Ghazizadeh v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 236 (F.C.A.)
  59. Ghribi, Abdelkarim Ben v. M.C.I. (F.C., no. IMM-2580-02), Blanchard, October 14, 2003; 2003 FC 1191; Lai, Li Min v. M.C.I. (F.C., no. IMM-1849-04), Simpson, February 8, 2005; 2005 FC 179
  60. Gicu, Andrei Marian v. M.C.I. (F.C.T.D., no. IMM-2140-98), Tremblay-Lamer, March 5, 1999
  61. Gill, Jagdip v. M.C.I. (F.C.T.D., no. IMM-448-97), Lutfy, December 31, 1997
  62. Gonzalez Gonzalez, Blanca Luz v. M.C.I. (F.C., no. IMM-3429-06), Hughes, March 29, 2007; 2007 FC 339
  63. Gorria, Pablo Mauro v. M.C.I. (F.C., no. IMM-3003-06), Beaudry, March 16, 2007; 2007 FC 284
  64. Guzman, Jesus Ruby Hernandez v. M.C.I. (F.C.T.D., no. IMM-3748-97), Rothstein, October 29, 1998
  65. Gyamfuah, Cecilia v. M.E.I. (F.C.T.D., no. IMM-3168-93), Simpson, June 3, 1994. Reported: Gyamfuah v. Canada (Minister of Employment and Immigration) (1994), 25 Imm. L.R. (2d) 89 (F.C.T.D.)
  66. Habimana: M.C.I. v. Habimana, Djuma, (IMM-5616-08), Pinard, January 6, 2010, 2010 FC 16
  67. Hanfi, Aden Abdullah v. M.E.I. (F.C.T.D., no. A-610-92), Gibson, March 31, 1995
  68. Hassan, Nimo Ali v. M.E.I. (F.C.T.D., no. A-653-92), Rothstein, May 4, 1994
  69. Hassan, Noor v. M.E.I. (F.C.A., no. A-831-90), Isaac, Heald, Mahoney, October 22, 1992. Reported: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.)
  70. Hernandez, Alvaro Odilio Valladares v. M.E.I. (F.C.A., no. A-210-90), Stone, Linden, McDonald, July 7, 1993
  71. Hernandez, Fabian Edward v. M.C.I. (F.C.T.D., no. IMM-2410-95), Jerome, May 10, 1996
  72. Herrera, Juan Blas Perez de Corcho v. M.E.I. (F.C.T.D., no. A-615-92), Noël, October 19, 1993
  73. Herrera, Rosa Adela Barrera v. M.C.I. (F.C.T.D., no. A-1055-92), MacKay, March 29, 1995
  74. Hinson, Jane Magnanang v. M.C.I. (F.C.T.D., no. IMM-5034-94), Richard, July 18, 1996
  75. Hitimana, Gustave v. M.C.I. (F.C.T.D., no. IMM-5804-01), Pinard, February 21, 2003; 2003 FCT 189
  76. Idarraga Cardenas, Wilson Fernando v. M.C.I. (F.C., no. IMM-5661-09), Crampton, May 19, 2010; 2010 FC 537
  77. Igbalajobi, Buki v. M.C.I. (F.C.T.D., no. IMM-2230-00), McKeown, April 18, 2001
  78. Igbinosun, Nelson v. M.C.I. (F.C.T.D., no. IMM-7410-93), McGillis, November 17, 1994
  79. Inigo Contreras, Victor v. M.C.I. (F.C., no. IMM-3954-05), von Finckenstein, May 16, 2006; 2006 FC 603
  80. Isacko, Ali v. M.C.I. (F.C., no. IMM-9091-03), Pinard, June 28, 2004; 2004 FC 890
  81. Islas, Alfonso Godinez v. M.C.I. (F.C.T.D., no. IMM-647-94), Wetston, December 2, 1994
  82. Jiminez, Wilfredo v. M.C.I. (F.C.T.D., no. IMM-1718-98), Rouleau, January 25, 1999
  83. Kalumba, Banza v. M.C.I. (F.C., no. IMM-8673-04), Shore, May 17, 2005; 2005 FC 680
  84. Kammoun, M. Hammadi Ben Hassen v. M.C.I. (F.C., no. IMM-4096-05), Tremblay-Lamer, February 3, 2006; 2006 FC 128
  85. Kaur, Sarabjit v. M.E.I. (F.C.T.D., no. IMM-5701-93), Reed, August 19, 1994
  86. Kazi, Feroz Adeel v. M.C.I. (F.C.T.D., no. IMM-850-97), Pinard, August 15, 1997
  87. Kerimu, Calvin v. M.C.I. (F.C., no. IMM-9793-04), Blanchard, February 28, 2006; 2006 FC 264
  88. Kifoueti, Didier Borrone Bitemo v. M.C.I. (F.C.T.D., no. IMM-937-98), Tremblay-Lamer, February 11, 1999
  89. Kotorri, Rubin v. M.C.I. (F.C., no. IMM-1316-05), Beaudry, September 1, 2005; 2005 FC 1195
  90. Kudar, Peter v. M.C.I. (F.C., no. IMM-2218-03), Layden-Stevenson, April 30, 2004; 2004 FC 648
  91. Kulla, Hasan v. M.C.I. (F.C.T.D., no. IMM-4707-99), MacKay, August 24, 2000
  92. Kulla, Saimir v. M.C.I. (F.C., no. IMM-6837-03), von Finckenstein, August 24, 2004; 2004 FC 1170
  93. Lawani, Mathew v. M.C.I. (F.C.T.D., no. IMM-1963-99), Haneghan, June 26, 2000
  94. Lorne, Daniella Chandya v. M.C.I. (F.C., no. IMM-3542-05), von Finckenstein, March 27, 2006; 2006 FC 384
  95. Magana, Douglas Ivan Ayala v. M.E.I. (F.C.T.D., no. A-1670-92), Rothstein, November 10, 1993. Reported: Magana v. Canada (Minister of Employment and Immigration) (1993), 22 Imm. L.R. (2d) 300 (F.C.T.D.)
  96. Maina, Ali Adji v. M.C.I. (F.C.T.D., no. IMM-1221-99), Gibson, March 14, 2000
  97. Makala, François v. M.C.I. (F.C.T.D., no. IMM-300-98), Teitelbaum, July 17, 1998. Reported: Makala v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 251 (F.C.T.D.)
  98. Mandar, Kashmeer Singh v. M.C.I. (F.C.T.D., no. IMM-3450-99), Campbell, April 5, 2000
  99. Manefo, Sidonie Lorince Donkeng v. M.C.I. (F.C.T.D., no. IMM-3696-00), Teitelbaum, May 29, 2001; 2001 FCT 538
  100. Manzila, Nicolas v. M.C.I. (F.C.T.D., no. IMM-4757-97), Hugessen, September 22, 1998
  101. Martinez, Luis Amado Contreras v. M.C.I. (F.C., no. IMM-3662-05), Noël, March 17, 2006; 2006 FC 343
  102. Mbouko: M.C.I. v. Mbouko, Augustin (F.C. No. IMM-1988-04), Lemieux, January 31, 2005; 2005 FC 126
  103. Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.)
  104. Mohajery, Javad v. M.C.I. (F.C., no. IMM-2528-06), Blanchard, February 19, 2007; 2007 FC 185
  105. Mohamed, Mohamed Yasin v. M.E.I. (F.C.T.D., no. A-1517-92), Denault, December 16, 1993
  106. Mongo, Parfait v. M.C.I. (F.C.T.D., no. IMM-1005-98), Tremblay-Lamer, May 6, 1999
  107. Moore, Clara v. M.C.I. (F.C.T.D., no. IMM-682-00), Heneghan, October 27, 2000
  108. Moradi, Ahmad v. M.C.I. (F.C.T.D., no. IMM-2317-97), MacKay, September 23, 1998
  109. Moz, Saul Mejia v. M.E.I. (F.C.T.D., no. A-54-93), Rothstein, November 12, 1993. Reported: Moz v. Canada (Minister of Employment and Immigration) (1993), 23 Imm. L.R. (2d) 67 (F.C.T.D)
  110. Munderere: M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Décary, Létourneau, Nadon, March 5, 2008; 2008 FCA 84
  111. Munkoh, Frank v. M.E.I. (F.C.T.D., no. IMM-4056-93), Gibson, June 3, 1994
  112. Mutamba, Phydellis v. M.C.I. (F.C.T.D., no. IMM-2868-98), Pinard, April 15, 1999
  113. Mutangadura, Chipo Pauline v. M.C.I. (F.C., no. IMM-2553-06), Phelan, March 20, 2007; 2007 FC 298
  114. Naivelt, Andrei v. M.C.I. (F.C., no. IMM-9552-03), Snider, September 17, 2004; 2004 FC 1261
  115. Najdat, Parviz v. M.C.I. (F.C., no. IMM-3995-05), Russell, March 9, 2006; 2006 FC 302
  116. Nallbani, Ilir v. M.C.I. (F.C.T.D., no. IMM-5935-98), MacKay, June 25, 1999
  117. Nallbani, Ilir, v. M.C.I. (F.C.T.D., no. IMM-5935-98), MacKay, June 25, 1999
  118. Ngongo, Ndjadi Denis v. M.C.I. (F.C.T.D., no. IMM-6717-98), Tremblay-Lamer, October 25, 1999
  119. Nthoubanza, Arthur Jholy v. M.C.I. (F.C.T.D., no. IMM-207-98), Denault, December 17, 1998
  120. Nwaozor, Justin Sunday v. M.C.I. (F.C.T.D., no. IMM-4501-00), Tremblay-Lamer, May 23, 2001; 2001 FCT 517
  121. Obstoj: Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.)
  122. Oduro, Ebenezer v. M.E.I. (F.C.T.D., no. IMM-903-93), McKeown, December 24, 1993
  123. Ofori, Beatrice v. M.E.I. (F.C.T.D., no. IMM-3312-94), Gibson, March 14, 1995
  124. Oprysk, Vitaliy v. M.C.I. (F.C., no. IMM-5441-06), Mandamin, March 7, 2008; 2008 FC 326
  125. Ortiz, Ligia Ines Arias v. M.C.I. (F.C.T.D., no. IMM-4416-01), Pinard, November 13, 2002; 2002 FCT 1163
  126. Osei, Paul Kofi v. S.S.C. (F.C.T.D., no. IMM-4893-93), Reed, June 13, 1997
  127. 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.)
  128. Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.)
  129. Quaye, Sarah Adjoa v. M.C.I. (F.C.T.D., no. IMM-3999-00), Tremblay-Lamer, May 23, 2001; 2001 FCT 518
  130. Quintero Guzman, Jean Pierre Hernan v. M.C.I. (F.C., no. IMM-2458-08), Kelen, December 1, 2008; 2008 FC 1329
  131. R.E.D.G. v. M.C.I. (F.C.T.D., no. IMM-2523-95), McKeown, May 10, 1996; [1996] F.C.J. No. 631
  132. Rabbani, Sayed Moheyudee v. M.C.I. (F.C.T.D., no. IMM-236-96), Noël, January 16, 1997
  133. Rahman, Faizur v. M.E.I. (F.C.A., no. A-1244-91), Marceau, Desjardins, Létourneau, May 14, 1993
  134. Rahman, Kbm Abdur v. M.C.I. (F.C., no. IMM-4634-06), Snider, July 3, 2007; 2007 FC 689
  135. Rahman, Sheikh Mohammed Mostafizur v. M.E.I. (F.C.A., no. A-398-92), Hugessen, Létourneau, Robertson, March 3, 1995
  136. Sahiti, Shqipe v. M.C.I. (F.C., no. IMM-7198-04), Beaudry, March 15, 2005; 2005 FC 364
  137. Said, Mohamed Ahmed v. M.E.I. (F.C.T.D., no. 90-T-638), Teitelbaum, May 1, 1990
  138. Salinas: M.E.I. v. Salinas, Marisol Escobar (F.C.A., no. A-1323-91), Stone, MacGuigan, Henry, June 22, 1992. Reported: Canada (Minister of Employment and Immigration) v. Salinas (1992), 17 Imm. L.R. (2d) 118 (F.C.A.)
  139. Sangha, Karamjit Singh v. M.C.I. (F.C.T.D., no. IMM-1555-98), Reed, September 8, 1998
  140. Sani, Navid Shahnazary v. M.C.I. and M.P.S.E.P.C. (F.C., nos. IMM-5284-07 and IMM-5285-07), Lagacé, July 30, 2008; 2008 FC 913
  141. Sanoe, Sekou v. M.C.I. (F.C.T.D., no. IMM-5047-98), Lemieux, September 16, 1999
  142. Serhan: M.C.I. v. Serhan, Jaafar (F.C.T.D., no. IMM-539-00), Dawson, September 19, 2001; 2001 FCT 1029
  143. Shahid, Iqbal v. M.C.I. (F.C.T.D., no. IMM-6907-93), Noël, February 15, 1995. Reported: Shahid v. Canada (Minister of Citizenship and Immigration) (1995), 28 Imm. L.R. (2d) 130 (F.C.T.D.)
  144. Shpati, Zef v. M.C.I. (F.C., no. IMM-1801-06), Snider, March 1, 2007; 2007 FC 237
  145. Siddique, Ashadur Rahman v. M.C.I. (F.C.T.D., no. IMM-4838-93), Pinard, July 18, 1994
  146. Singh, Gurmeet v. M.C.I. (F.C.T.D., no. IMM-75-95), Richard, July 4, 1995. Reported: Singh, (Gurmeet) v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm. L.R. (2d) 226 (F.C.T.D.)
  147. Singh, Sukhraj v. M.C.I. (F.C.T.D., no. IMM-2803-95), Lutfy, January 10, 1997
  148. Stapleton, Elizabeth Sylvia v. M.C.I. (F.C., no. IMM-1315-06), Blanchard, November 1, 2006; 2006 FC 1320
  149. Stoyanov, Gueorgui Ivanov v. M.E.I. (F.C.A., no. A-206-91), Hugessen, Mahoney, Décary, April 26, 1993
  150. Suleiman, Juma Khamis v. M.C.I. (F.C., no. IMM-1439-03), Martineau, August 12, 2004; 2004 FC 1125. Reported: Suleiman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 26 (F.C.)
  151. Tang, Xiaoming v. M.C.I. (F.C.T.D., no. IMM-3650-99), Reed, June 21, 2000
  152. Thiaw, Hamidou v. M.C.I. (F.C., no. IMM-6877-05), Blais, August 14, 2006; 2006; 2006 FC 965
  153. Urur, Mohamed Ahmed v. M.E.I. (F.C.A., no. A-228-87), Pratte, Joyal, Walsh, January 15, 1988
  154. Vafaei, Farah Angiz v. M.E.I. (F.C.T.D., no. IMM-1276-93), Nadon, February 2, 1994
  155. Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.)
  156. Vasuthevan, Nagamany v. M.E.I. (F.C.T.D., no. IMM-887-93), Jerome, March 23, 1994
  157. Velasquez, Ana Getrudiz v. M.E.I. (F.C.T.D., no. IMM-990-93), Gibson, March 31, 1994
  158. Ventura, Simon Alberto v. M.E.I. (F.C.T.D., no. IMM-6061-93), Cullen, October 5, 1994
  159. Villalta, Jairo Francisco Hidalgo v. S.G.C. (F.C.T.D., no. A-1091-92), Reed, October 8, 1993
  160. Villegas Echeverri, Clara Ines v. M.C.I. (F.C., no. IMM-4046-10), Crampton, March 30, 2011; 2011 FC 390
  161. Vodopianov, Victor v. M.E.I. (F.C.T.D., no. A-1539-92), Gibson, June 20, 1995
  162. Wang, Kong Ping v. M.C.I. (F.C.T.D., no. IMM-6298-99), Pelletier, November 14, 2001; 2001 FCT 1237
  163. Win, Ko Ko v. M.C.I. (F.C., no. IMM-1248-08), Shore, March 28, 2008; 2008 FC 398
  164. Yamba: M.C.I. v. Yamba, Yamba Odette Wa (F.C.A., no. A-686-98), Isaac, Robertson, Sexton, April 6, 2000
  165. Yang, Hua v. M.C.I. (F.C.T.D., no. IMM-380-00), Gibson, November 24, 2000
  166. Yang, Yi Lan v. M.E.I. (F.C.T.D., no. 93-A-135), Nadon, February 2, 1994
  167. Youssef, Sawsan El-Cheikh v. M.C.I. (F.C.T.D., no. IMM-990-98), Teitelbaum, March 29, 1999
  168. Yusuf, Sofia Mohamed v. M.E.I. (F.C.A., no. A-130-92), Hugessen, Strayer, Décary, January 9, 1995. Reported: Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N.R. 11 (F.C.A.)
  169. Zandi, Reza v. M.C.I. (F.C., no. IMM-4168-03), Kelen, March 17, 2004; 2004 FC 411
  170. Zdjelar, Damir v. M.C.I. (F.C.T.D., no. IMM-5363-00), Gibson, July 26, 2001; 2001 FCT 828. Reported: Zdjelar v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 560 (T.D.)
  171. Zewedu, Haimanot v. M.C.I. (F.C.T.D., no. IMM-5564-99), Hugessen, July 26, 2000
  172. Zhu, Yong Qin v. M.C.I. (F.C.T.D., no. IMM-5678-00), Dawson, September 18, 2001; 2001 FCT 1026. Reported: Zhu v. Canada (Minister of Citizenship and Immigration), [2002] 1 F.C. 379 (T.D.)

Notes

Note 1

Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.) at 404, per Pratte J.A. Although this case concerned an initial (credible basis) hearing (since abolished by Bill C-86, which amended the Immigration Act), the principle is applicable to determinations by the Refugee Protection Division. See also 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.).

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Note 2

Yusuf, Sofia Mohamed v. M.E.I. (F.C.A., no. A-130-92), Hugessen, Strayer, Décary, January 9, 1995. Reported: Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N.R. 11 (F.C.A.), at 1-2 (unreported); at 12 (reported). Leave to appeal to the S.C.C. denied June 22, 1995.

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Note 3

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

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Note 4

In Stoyanov, Gueorgui Ivanov v. M.E.I. (F.C.A., no. A-206-91), Hugessen, Mahoney, Décary, April 26, 1993, at 2, Justice Hugessen, speaking for the Court, stated: "… when the [Refugee] Division has a refugee claim before it, it must apply the test stated by this Court in Adjei, and not … the test (assuming that it is different) that would apply to an application for loss of status ("cessation") made by the Minister under s. 69.2." Some decisions of the Trial Division, in the context of the debate on the "Hathaway test", have taken the position that there may be a different (i.e., higher) standard of proof that is applied at a cessation hearing under section 69.2 of the Immigration Act, e.g., Villalta, Jairo Francisco Hidalgo v. S.G.C. (F.C.T.D., no. A-1091-92), Reed, October 8, 1993; Magana, Douglas Ivan Ayala v. M.E.I. (F.C.T.D., no. A-1670-92), Rothstein, November 10, 1993. Reported: Magana v. Canada (Minister of Employment and Immigration) (1993), 22 Imm. L.R. (2d) 300 (F.C.T.D.). See, however, Youssef, Sawsan El-Cheikh v. M.C.I. (F.C.T.D., no. IMM-990-98), Teitelbaum, March 29, 1999, which actually involved a cessation application, for a different view. See also M.C.I. v. Serhan, Jaafar (F.C.T.D., no. IMM-539-00), Dawson, September 19, 2001; 2001 FCT 1029, which held that the correct test on applications for cessation is whether changes occurred which rendered the previously established fear of persecution to be unfounded. Cessation of status (refugee protection) is now governed by section 108 of the Immigration and Refugee Protection Act, the provisions of which are essentially the same as those found in the former Immigration Act.

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Note 5

See James C. Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991), pages 200-203. When discussing the cessation clause, which has been incorporated into section 108(1)(e) of the Immigration and Refugee Protection Act and was previously found in section 2(2)(e) of the Immigration Act, Professor Hathaway stated that the changes must be shown to be of (1) substantial political significance, (2) truly effective, and (3) durable. This is the so-called three-prong "Hathaway test" referred to in the jurisprudence.

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Note 6

Yusuf, supra, footnote 2, at 1-2 (unreported); at 12 (reported). There is, however, dicta in an earlier decision of the Court of Appeal that is potentially problematic. In Ahmed, Ali v. M.E.I. (F.C.A., no. A-89-92), Marceau, Desjardins, Décary, July 14, 1993. Reported: Ahmed v. Canada (Minister of Employment and Immigration) (1993), 156 N.R. 221 (F.C.A.), at 223-224, Marceau J.A. stated (in relation to the CRDD's finding that with the change in government in Bangladesh, the claimant's fear was no longer well founded), that this ground does not entail "a mere finding of fact drawn directly from the evidence … the evidence has to be interpreted and inferences must be drawn from it in relation to legal concepts and provisions of law. … the mere fact that there has been a change of government is clearly not in itself sufficient to meet the requirements of a change of circumstances which have rendered the genuine fear of a claimant unreasonable and hence without foundation." Ahmed can be reconciled with Yusuf if one bears in mind that in Ahmed, the Court was relating the change to the objective basis of the claim (i.e., the Adjei test). Hence the view expressed in Oduro, Ebenezer v. M.E.I. (F.C.T.D., no. IMM-903-93), McKeown, December 24, 1993, at 3, that the Federal Court in Ahmed) "has determined that the determination of change in circumstances is a mixed question of fact and law."

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Note 7

Rahman, Sheikh Mohammed Mostafizur v. M.E.I. (F.C.A., no. A-398-92), Hugessen, Létourneau, Robertson, March 3, 1995, at 1.

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Note 8

Fernandopulle, Eomal v. M.C.I. (F.C.A., no. A-217-04). Sharlow, Nadon, Malone, March 8, 2005; 2005 FCA 91.

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Note 9

Villalta, supra, footnote 4, at 7. The Court went on to hold that the Board need not engage in "the conceptual exercise of subtracting changed country conditions from their analysis, and then, after making that analysis, move on to assess the significance of changed country conditions." See also Barreto, Hugo Cesar Ghan v. M.C.I. (F.C.T.D., no. IMM-3987-94), Wetston, June 7, 1995, where the Court states at 9: "When the Board discusses change in country conditions, it does so as part of its determination of whether the [claimants'] fear was objectively well founded. In this regard, a change in country conditions is one factor, among others, which the Board is entitled to consider in its determination."

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Note 10

Singh, Sukhraj v. M.C.I. (F.C.T.D., no. IMM-2803-95), Lutfy, January 10, 1997. See also Sanoe, Sekou v. M.C.I. (F.C.T.D., no. IMM-5047-98), Lemieux, September 16, 1999, to the same effect.

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Note 11

Gill, Jagdip v. M.C.I. (F.C.T.D., no. IMM-448-97), Lutfy, December 31, 1997.

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Note 12

Barreto, supra, footnote 9, at 7-9.

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Note 13

Kaur, Sarabjit v. M.E.I. (F.C.T.D., no. IMM-5701-93), Reed, August 19, 1994, at 2; Alza, Julian Ulises v. M.C.I. (F.C.T.D., no. IMM-3657-94), MacKay, March 26, 1996; Hernandez, Fabian Edward v. M.C.I. (F.C.T.D., no. IMM-2410-95), Jerome, May 10, 1996.

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Note 14

Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.), at 95. As noted in Osei, Penate was decided before Yusuf (F.C.A.), and must be read in light of Justice Reed's comments in Osei, Paul Kofi v. S.S.C. (F.C.T.D., no. IMM-4893-93), Reed, June 13, 1997, where she stated that the Yusuf approach does not require the CRDD to engage in an analysis of the three elements listed in Hathaway's test and reach a conclusion with respect to each of them. Rather the CRDD need only assess whether the changes, as a matter of fact, led to a conclusion than an objective basis to the claim no longer existed. See also in this regard Ayankojo, Isaac Olymuyiwa Olaoluwa v. M.C.I. (F.C.T.D., no. 3877-99), Reed, June 8, 2000. Along the same lines, in Nallbani, Ilir v. M.C.I. (F.C.T.D., no. IMM-5935-98), MacKay, June 25, 1999, the Court stated: "I am not persuaded that the panel had to expressly find the change of circumstances was effective and lasting, rather it was sufficient to find, as it did, that the … claim was not established prospectively in light of the change in circumstances." For a different focus see Vodopianov, Victor v. M.E.I. (F.C.T.D., no. A-1539-92), Gibson, June 20, 1995.

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Note 15

Ahmed, supra, footnote 6, at 224, per Marceau J.A.

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Note 16

Cuadra, Walter Antonio v. S.G.C. (F.C.A., no. A-179-92), Isaac, Marceau, Linden, July 20, 1993. Reported: Cuadra v. Canada (Solicitor General) (1993), 157 N.R. 390 (F.C.A.), at 392, per Marceau J.A.

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Note 17

Vodopianov, supra, footnote 14. See also Kazi, Feroz Adeel v. M.C.I. (F.C.T.D., no. IMM-850-97), Pinard, August 15, 1997. Reported: Kazi v. Canada (Minister of Citizenship and Immigration) (1997), 40 Imm. L.R. (2d) 193 (F.C.T.D.), where the Court stated that the key consideration is whether the changes in the political situation are effective and durable, as opposed to merely transitory, and what, if any bearing, these changes have on the claimant's specific situation. In Zdjelar, Damir v. M.C.I. (F.C.T.D., no. IMM-5363-00), Gibson, July 26, 2001; 2001 FCT 828. Reported: Zdjelar v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 560 (T.D.), the Court found that the CRDD did not engage in an effective weighing of the evidence for and against changed country conditions in relation to the Hathaway criteria. See also Sahiti, Shqipe v. M.C.I. (F.C., no. IMM-7198-04), Beaudry, March 15, 2005; 2005 FC 364, to the same effect. In Shahiti the Court relied on pre-Yusuf case law from the Trial Division and did not refer to the Court of Appeal decision in Yusuf.

Return to note 17 referrer

Note 18

Chowdhury, Hasan Mahmud v. M.C.I. (F.C., no. IMM-7284-05), Mosley, March 4, 2008; 2008 FC 290.

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Note 19

Youssef, supra, footnote 4.

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Note 20

Campos Umana, Cesar Emilio v. M.C.I. (F.C.T.D., no. IMM-1434-02), Snider, April 2, 2003; 2003 FCT 393.

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Note 21

In Rahman, Faizur v. M.E.I. (F.C.A., no. A-1244-91), Marceau, Desjardins, Létourneau, May 14, 1993, at 3, the ouster of President Ershad (in Bangladesh) followed by the electoral victory of the claimant's party, in the view of Marceau J.A., "may, in themselves, recent though they have been, amount to a sufficient change of circumstances, given the basis of the fear on which the [claimant] relied." However, in Ahmed, supra, footnote 6, at 224, Marceau J.A. cautioned that "the mere declarations of the new four-month old government that it favoured the establishment of law and order can hardly be seen, when the root of the [claimant's] fear and the past record of the new government with respect to human rights violations are considered, as a clear indication of the meaningful and effective change which is required to expunge the objective foundation of the … claim." On the other hand, when dealing with changes of longer duration, in Ofori, Beatrice v. M.E.I. (F.C.T.D., no. IMM-3312-94), Gibson, March 14, 1995, the Court stated at 4: "Durability does not equate with permanence. … the concept of meaningful and effective change implies an element of durability, not in an absolute sense but in a comparative sense …" The Court came to a similar conclusion in Castellanos, Julio Alfredo Vaquerano v. M.C.I. (F.C.T.D., no. IMM-2082-94), Gibson, October 18, 1994. Reported: Castellanos v. Canada (Minister of Citizenship and Immigration) (1994), 30 Imm. L.R. (2d) 77 (F.C.T.D.), where Gibson J. stated at 80: "I know of no decision of this court that has adopted the position that changes must be: '… durable in the sense that there is no possible chance of a reversal in the future.'" Moreover, after conceding that "the situation was not perfect and that some unrest continued," the Court in Belozerova, Natalia v. M.C.I. (F.C.T.D., no. IMM-912-94), Simpson, May 25, 1995, stated at 4: "No one can predict the future and there is no doubt that, in situations charged with ethnic rivalry, there will always be some uncertainty."

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Note 22

In Abarajithan, Paramsothy v. M.E.I. (F.C.A., no. A-805-90), Stone, MacGuigan, Linden, January 28, 1992, the CRDD was found to have relied incorrectly on tentative changes in Sri Lanka (cooperation between the Tigers and the Sri Lankan Army). In Magana, supra, footnote 4, at 303-304, the Court categorized the articles published before or at the time of the three-month-old peace accord in El Salvador as "preliminary, tentative indications of the effect of the changes … especially in light of contrary evidence … that the peace process was in danger and death squad activity continued." In Agyakwah, Elizabeth Lorna v. M.E.I. (F.C.T.D., no. A-7-93), McKeown, December 10, 1993, the CRDD was found to have erred in relying on the lifting of the ban on political parties just two days prior to the hearing where no change of government had occurred and the poor human rights record of the Ghanaian government was longstanding. In Antonio, Neto Xavier v. M.C.I. (F.C.T.D., no. A-472-92), Noël, January 27, 1995, the CRDD erroneously relied on tentative changes in Angola: the peace accord was only a few days old; the same regime was in power; elections were supposed to take place in 18 months; a previous accord had failed; the accord contained no guarantee for former enemies of the regime. In Chaudary, Imran Akram v. M.C.I. (F.C.T.D., no. IMM-2048-94), Reed, May 4, 1995, the Court held, at 4, that the statement that "a greater possibility of stability" than existed previously did not carry "sufficient weight to counterbalance a finding that an objective basis would otherwise exist." In Quaye, Sarah Adjoa v. M.C.I. (F.C.T.D., no. IMM-3999-00), Tremblay-Lamer, May 23, 2001; 2001 FCT 518, the Court noted that "cultural and traditional normes [sic] do not change overnight," and that "the mere enactment of new laws" may not be in itself sufficient to remove the objective basis of the claim. In Alfarsy, Asma Haidar Jabir v. M.C.I. (F.C., no. IMM-3395-02), Russell, December 12, 2003; 2003 FC 1461, the Court stated that declarations of intent must be examined against the history of the conflict with a view to evaluating the likely permanence of the changes.

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Note 23

Rahman, Faizursupra, footnote 21, at 2, per Marceau J.A.: "Whether a change of circumstances is sufficient for a fear of persecution to be no longer well-founded must naturally be determined in relation to the basis of and reasons for the fear relied on." See also Boateng, Joseph Kwaku v. M.E.I. (F.C.T.D., no. 92-A-6560), Noël, May 4, 1993, at 3.

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Note 24

Ahmed, supra, footnote 6, at 224, per Marceau J.A.

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Note 25

Kifoueti, Didier Borrone Bitemo v. M.C.I. (F.C.T.D., no. IMM-937-98), Tremblay-Lamer, February 11, 1999. In this case, as in Vodopianov, supra, footnote 14, the changes were so recent that there was no evidence to indicate how the new regime would behave.

Return to note 25 referrer

Note 26

Mohamed, Mohamed Yasin v. M.E.I. (F.C.T.D., no. A-1517-92), Denault, December 16, 1993, at 4.

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Note 27

Chowdhury, Mashiul Haq v. M.E.I. (F.C.T.D., no. 92-A-6565), Noël, June 2, 1993; Emnet, Angeset Woldmichael v. M.E.I. (F.C.T.D., no. 93-A-182), MacKay, August 27, 1993; Bhuiyan, Nazrul Islam v. M.E.I. (F.C.T.D., no. 92-A-6737), MacKay, September 13, 1993; Munkoh, Frank v. M.E.I. (F.C.T.D., no. IMM-4056-93), Gibson, June 3, 1994; Ventura, Simon Alberto v. M.E.I. (F.C.T.D., no. IMM-6061-93), Cullen, October 5, 1994; Hanfi, Aden Abdullah v. M.E.I. (F.C.T.D., no. A-610-92), Gibson, March 31, 1995. In Alam, Mohammed Mahfuz v. M.C.I. (F.C.T.D., no. IMM-4883-97), McGillis, October 7, 1998, the Court held that the CRDD failed to consider the specific evidence that the claimant's problems with the police and with goons of the BNP continued after the election of the Awami League.

Return to note 27 referrer

Note 28

Doganian, Rafi Charvarch v. M.E.I. (F.C.A., no. A-807-91), Hugessen, MacGuigan, Décary, April 26, 1993;  Boateng, supra, footnote 23. In Moz, Saul Mejia v. M.E.I. (F.C.T.D., no. A-54-93), Rothstein, November 12, 1993. Reported: Moz v. Canada (Minister of Employment and Immigration) (1993), 23 Imm. L.R. (2d) 67 (F.C.T.D), the claim was referred back to the CRDD to obtain evidence relating to the treatment of army deserters in El Salvador. See also Vodopianov, supra, footnote 14, and Kifoueti, supra, footnote 25, where the changes were so recent that there was no evidence to indicate how the new regime would behave. In Alfarsy, supra, footnote 22, the Court held that if the legal action against the claimants was politically based, there is no reason to assume that they would be treated differently from other party members who had previously suffered persecution, legal harassment and incarceration.

Return to note 28 referrer

Note 29

El-Bahisi, Abdelhady v. M.E.I. (F.C.T.D., no. A-1209-92), Denault, January 4, 1994; Islas, Alfonso Godinez v. M.C.I. (F.C.T.D., no. IMM-647-94), Wetston, December 2, 1994; Herrera, Rosa Adela Barrera v. M.C.I. (F.C.T.D., no. A-1055-92), MacKay, March 29, 1995.

Return to note 29 referrer

Note 30

Alfarsy, supra, footnote 22. See also Kerimu, Calvin v. M.C.I. (F.C., no. IMM-9793-04), Blanchard, February 28, 2006; 2006 FC 264, where the issue of change of circumstances had been identified pre-hearing, but not at the outset of the hearing when the panel identified other issues as the main issues. The Court held that the rejection of the claim on the basis of change of circumstances was a denial of natural justice, because the claimant was not provided with the opportunity to know the case to be met.

Return to note 30 referrer

Note 31

Hernandez, Alvaro Odilio Valladares v. M.E.I. (F.C.A., no. A-210-90), Stone, Linden, McDonald, July 7, 1993.

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Note 32

See rule 37 of the Refugee Protection Division Rules and the Commentary to that rule regarding the requirements for submitting documents after the hearing has ended.

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Note 33

M.E.I. v. Salinas, Marisol Escobar (F.C.A., no. A-1323-91), Stone, MacGuigan, Henry, June 22, 1992. Reported: Canada (Minister of Employment and Immigration) v. Salinas (1992), 17 Imm. L.R. (2d) 118 (F.C.A.). See also the Commentary to rule 37 of the Refugee Protection Division Rules.

Return to note 33 referrer

Note 34

Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.), at 746.

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Note 35

Although section 2(3) of the Immigration Act is framed as an exception to section 2(2)(e), there was no requirement for a formal determination of cessation of status in the context of a hearing under section 69.1 (as would be required in the context of a hearing under section 69.2 of that Act). The same can be said about section 108(4) of IRPA.

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Note 36

Isacko, Ali v. M.C.I. (F.C., no. IMM-9091-03), Pinard, June 28, 2004; 2004 FC 890. The Court then went on to endorse the decision in Shahid, Iqbal v. M.C.I. (F.C.T.D., no. IMM-6907-93), Noël, February 15, 1995. Reported: Shahid v. Canada (Minister of Citizenship and Immigration) (1995), 28 Imm. L.R. (2d) 130 (F.C.T.D.), which was decided under the Immigration Act.

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Note 37

Martinez, Luis Amado Contreras v. M.C.I. (F.C., no. IMM-3662-05), Noël, March 17, 2006; 2006 FC 343; Lorne, Daniella Chandya v. M.C.I. (F.C., no. IMM-3542-05), von Finckenstein, March 27, 2006; 2006 FC 384; and Stapleton, Elizabeth Sylvia v. M.C.I. (F.C., no. IMM-1315-06), Blanchard, November 1, 2006; 2006 FC 1320.

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Note 38

Najdat, Parviz v. M.C.I. (F.C., no. IMM-3995-05), Russell, March 9, 2006; 2006 FC 302.

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Note 39

In Obstoj, supra, footnote 34, at 748, Justice Hugessen stated that the exception applies, "…even though they may no longer have any reason to fear further persecution." This interpretation was followed in Hassan, Nimo Ali v. M.E.I. (F.C.T.D., no. A-653-92), Rothstein, May 4, 1994. However, in Shahid, supra, footnote 36, the Court stated that "The claimant must have a subjective fear of persecution …".

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Note 40

Idarraga Cardenas, Wilson Fernando v. M.C.I. (F.C., no. IMM-5661-09), Crampton, May 19, 2010; 2010 FC 537.

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Note 41

Cortez, Delmy Isabel v. S.S.C. (F.C.T.D., no. IMM-2482-93), McKeown, December 15, 1993, at 2.

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Note 42

Hassan, Noor v. M.E.I. (F.C.A., no. A-831-90), Isaac, Heald, Mahoney, October 22, 1992. Reported: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Brovina, Qefsere v. M.C.I. (F.C., no. IMM-2427-03), Layden-Stevenson, April 29, 2004; 2004 FC 635; and Kalumba, Banza v. M.C.I. (F.C., no. IMM-8673-04), Shore, May 17, 2005; 2005 FC 680. There is some confusion in the pre-Cihal, infra, footnote 43, case law as to what point in time the claimant had to have met the requirements for Convention refugee. For example, in Singh, Gurmeet v. M.C.I. (F.C.T.D., no. IMM-75-95), Richard, July 4, 1995. Reported: Singh, (Gurmeet) v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm. L.R. (2d) 226 (F.C.T.D.), at 230, the Court referred to the fact that the claimant "might at one time have been a Convention refugee" (emphasis added). The principle of alienage, i.e., a claimant must be outside his or her country of origin, would necessitate that the person met the requirements of refugeehood at the time of departure from his or her country of origin, and that there was a subsequent change in circumstances, before the panel could consider the compelling reasons exception. The existence of past persecution does not automatically trigger the need to consider the application of the exception.

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Note 43

Cihal, Pavla v. M.C.I. (F.C.A., no. A-54-97), Stone, Evans, Malone, May 4, 2000. See also M.C.I. v. Dolamore, Jessica Robyn (F.C.T.D., no. IMM-4580-00), Blais, May 1, 2001; 2001 FCT 421, where the Court held that the CRDD erred in not examining the issue of state protection regarding the claimant's objective fear before considering whether there was a change of circumstances (and compelling reasons). In Adjibi, Marcelle v. M.C.I. (F.C.T.D., no. IMM-2580-01), Dawson, May 8, 2002; 2002 FCT 525, the Court held that the CRDD erred in not considering whether section 2(3) of the Immigration Act applied to the minors' claims, since the principal claimant had been found to be persecuted and the claims of all of the claimants were dismissed on the basis of changed country conditions.

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Note 44

Corrales, Maria Cecilia Abarca v. M.C.I. (F.C.T.D., no. IMM-4788-96), Reed, October 3, 1997. See also Diamanama, Nsimba v. M.C.I. (F.C.T.D., no. IMM-2288-97), Richard, June 23, 1998; Naivelt, Andrei v. M.C.I. (F.C., no. IMM-9552-03), Snider, September 17, 2004; 2004 FC 1261. See also Martinez, and Stapleton, supra, footnote 37.

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Note 45

In Ortiz, Ligia Ines Arias v. M.C.I. (F.C.T.D., no. IMM-4416-01), Pinard, November 13, 2002; 2002 FCT 1163, the CRDD determined that the claimant had not established that she was in fact at risk from her former employer. Since there were no changed country conditions, the exception did not apply. See also Thiaw, Hamidou v. M.C.I. (F.C., no. IMM-6877-05), Blais, August 14, 2006; 2006; 2006 FC 965, where the RPD determined that the claimant was a victim of discrimination and not persecution. The Court held that in the absence of a previous finding of persecution, the compelling reasons exception does not apply.

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Note 46

In Kudar, Peter v. M.C.I. (F.C., no. IMM-2218-03), Layden-Stevenson, April 30, 2004; 2004 FC 648, the Court stated that:

… there may be situations where the board can be said to implicitly have found that a claimant was previously a refugee and, but for the changed country conditions, would still be a refugee. This is not such a case. The RPD found that police protection was available to Mr. Kudar. Thus, the board found that he was not a refugee. The changed country conditions do not apply. Nor does the exception of compelling reasons…

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Note 47

Guzman, Jesus Ruby Hernandez v. M.C.I. (F.C.T.D., no. IMM-3748-97), Rothstein, October 29, 1998. Note: A distinction needs to be drawn between a case where the evidence shows that there was a fundamental lack of subjective fear, as in Guzman, and a case where there was once a subjective fear and that fear no longer exists because of a change of circumstances. In the latter case, the claimant can still argue that there are compelling reasons not to return him or her to the country of past persecution.

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Note 48

Gyamfuah, Cecilia v. M.E.I. (F.C.T.D., no. IMM-3168-93), Simpson, June 3, 1994. Reported: Gyamfuah v. Canada (Minister of Employment and Immigration) (1994), 25 Imm. L.R. (2d) 89 (F.C.T.D.), at 94; Abdul, Gamel v. M.C.I. (F.C.T.D., no. IMM-1796-02), Snider, February 28, 2003; 2003 FCT 260. See also Rahman, Kbm Abdur v. M.C.I. (F.C., no. IMM-4634-06), Snider, July 3, 2007; 2007 FC 689, where the rationale was applied in relation to section 108(4) of IRPA since the Board did not believe the claimants' fear of past persecution in their country (Bangladesh).

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Note 49

Manefo, Sidonie Lorince Donkeng v. M.C.I. (F.C.T.D., no. IMM-3696-00), Teitelbaum, May 29, 2001; 2001 FCT 538.

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Note 50

Sangha, Karamjit Singh v. M.C.I. (F.C.T.D., no. IMM-1555-98), Reed, September 8, 1998; Kalumba, supra, footnote 36. In Singh, Gurmeet v. M.C.I., supra, footnote 42, the Court held that, since the determination was based, in part, on a change of circumstances, the finding that the claimants had an IFA did not excuse the panel from considering the "compelling reasons" exception, given the past persecution and supporting medical report. In Rabbani, Sayed Moheyudee v. M.C.I. (F.C.T.D., no. IMM-236-96), Noël, January 16, 1997, the Court held that the CRDD had erred, for among other reasons, because its finding that the claimant had an IFA in Afghanistan was inconsistent with its implied finding that there must have been a fear of persecution throughout the country prior to the change of circumstances.

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Note 51

Moore, Clara v. M.C.I. (F.C.T.D., no. IMM-682-00), Heneghan, October 27, 2000.

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Note 52

M.C.I. v. Yamba, Yamba Odette Wa (F.C.A., no. A-686-98), Isaac, Robertson, Sexton, April 6, 2000. However, in Gonzalez Gonzalez, Blanca Luz v. M.C.I. (F.C., no. IMM-3429-06), Hughes, March 29, 2007; 2007 FC 339, the Court stated that there is no requirement for the Board to raise the issue of "compelling reasons" on its own accord. In Shpati, Zef v. M.C.I. (F.C., no. IMM-1801-06), Snider, March 1, 2007; 2007 FC 237, the Court held that a failure to make an explicit finding of persecution will not automatically amount to an error of law. In that case, the RPD went on to consider whether there were "compelling reasons" even though it did not make an explicit finding of past persecution.

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Note 53

Alfaka Alharazim, Suleyman v. M.C.I. (F.C., no. IMM-1828-09), Crampton, October 22, 2010; 2010 FC 1044. See also Brovina, supra, footnote 42, where the Court said that there was no need to make a finding of past persecution because the RPD properly made a forward-looking analysis and concluded that the claimant would not suffer future persecution.

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Note 54

Obstoj, supra, footnote 34, at 748.

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Note 55

This caution was repeated in subsequent decisions of the Federal Court, e.g., Cortez, supra, footnote 41, at 2 ("in unusual circumstances"); Yusuf, supra, footnote 2, at 1-2 ("that very rare class of persons to whom this exceptional provision applies"). The following cases are examples of fact situations that have come before the Board over the years. In Arguello-Garcia, Jacobo Ignacio v. M.E.I. (F.C.T.D., no. 92-A-7335), McKeown, June 23, 1993. Reported: Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.), the claimant had suffered serious physical and sexual abuse while in detention for 45 days, and his relatives had been killed. The CRDD decision rejecting his claim was overturned. In Lawani, Mathew v. M.C.I. (F.C.T.D., no. IMM-1963-99), Haneghan, June 26, 2000, the Court held that the CRDD erred when, after accepting the claimant's evidence as credible, it found that there was insufficient evidence that his treatment was sufficiently appalling and atrocious. The claimant was brutally and severely ill-treated by government agents while in detention, including being hung upside down for long periods of time, being burnt with hot irons and cigarette fire, being whipped on the back and being made to expose his genitalia to the guards who inserted broom sticks and needles into his penis. In Gorria, Pablo Mauro v. M.C.I. (F.C., no. IMM-3003-06), Beaudry, March 16, 2007; 2007 FC 284, the Court stated: "Sexual assault and physical assault such as that to which the applicant was subjected are not to be measured on a sliding scale of atrocity when the immutable factor giving rise to such victimization and human degradation, forms one of the very core characteristics enunciated and protected under Article 5 of the Declaration of Human Rights. … Sexual assault is appalling and atrocious particularly in this instance where it is used as a tool by the police against the applicant's sexual orientation. Similarly, physical assault and the form of prior persecution inflicted on the applicant were such that it was patently unreasonable for the Board to ask the applicant to return to not only his country, Argentina, but to his home city, Buenos Aires, where the events took place." On the other hand, in Siddique, Ashadur Rahman v. M.C.I. (F.C.T.D., no. IMM-4838-93), Pinard, July 18, 1994, the Court upheld the CRDD's finding that the torture the claimant had endured during his 15-day detention in Bangladesh in the early 1980s, albeit abhorrent, did not constitute atrocious persecution. In E.T. v. S.S.C. (F.C.T.D., no. IMM-3380-94), Gibson, June 1, 1995; [1995] F.C.J. No. 857, the Court upheld the CRDD's finding that the claimant's detention, torture, beatings and sexual assaults were not "sufficiently serious", "atrocious" or "appalling" to warrant the application of section 2(3). See also similar findings in R.E.D.G. v. M.C.I. (F.C.T.D., no. IMM-2523-95), McKeown, May 10, 1996; [1996] F.C.J. No. 631, where the claimant had been abducted, beaten and raped; and Nallbani, Ilir, v. M.C.I. (F.C.T.D., no. IMM-5935-98), MacKay, June 25, 1999, where the claimant had been detained on five occasions, beaten, tortured, deprived of food and drink, and his life threatened. In Gicu, Andrei Marian v. M.C.I. (F.C.T.D., no. IMM-2140-98), Tremblay-Lamer, March 5, 1999, the Court pointed out that the events reported by the claimant (internment in a psychiatric hospital for a few months, two periods of imprisonment and beatings during his stays in prison) did not meet the test required by the case law in terms of the level of atrocity. In Nwaozor, Justin Sunday v. M.C.I. (F.C.T.D., no. IMM-4501-00), Tremblay-Lamer, May 23, 2001; 2001 FCT 517, the claimant's father was killed, though not in the claimant's presence, and his brother shot by unknown persons; the claimant and other family members had been beaten and harassed by the Nigerian army on three occasions over a 6-month period. The Court upheld the CRDD's finding that this did not meet the high standard of "atrocious and appalling".

Return to note 55 referrer

Note 56

Hassan, supra, footnote 39, at 5-6.

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Note 57

Shahid, supra, footnote 36, at 138; Hitimana, Gustave v. M.C.I. (F.C.T.D., no. IMM-5804-01), Pinard, February 21, 2003; 2003 FCT 189; Isacko, supra, footnote 36.

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Note 58

Suleiman, Juma Khamis v. M.C.I. (F.C., no. IMM-1439-03), Martineau, August 12, 2004; 2004 FC 1125. Reported: Suleiman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 26 (F.C.).

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Note 59

Kotorri, Rubin v. M.C.I. (F.C., no. IMM-1316-05), Beaudry, September 1, 2005; 2005 FC 1195. As such the Board has no specific expertise in this task.

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Note 60

Shahid, supra, footnote 36, at 138. This approach was cited with approval in Adjibi, supra, footnote 43; and, in relation to IRPA, in Isacko, supra, footnote 36, In Shahid, the Court (at 136) also set out a summary of the state of the case law based on Arguello-Garcia, supra, footnote 55, however some of those propositions, especially the second one (relating to ongoing subjective fear), are in doubt, as shown by the discussion earlier in the text of this chapter (section 7.2.1).

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Note 61

Adjibi, supra, footnote 43.

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Note 62

Shahid, supra, footnote 36.

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Note 63

Igbalajobi, Buki v. M.C.I. (F.C.T.D., no. IMM-2230-00), McKeown, April 18, 2001; 2001 FCT 348.

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Note 64

Biakona, Leonie Bibomba v. M.C.I. (F.C.T.D., no. IMM-1706-98), Teitelbaum, March 23, 1999. See also Quintero Guzman, Jean Pierre Hernan v. M.C.I. (F.C., no. IMM-2458-08), Kelen, December 1, 2008; 2008 FC 1329, where the RPD decision was overturned for failing to provide an explanation of why the abhorrent attack was insufficient to trigger the application of s. 108(4). See also Suleiman, supra, footnote 58. In Kulla, Saimir v. M.C.I. (F.C., no. IMM-6837-03), von Finckenstein, August 24, 2004; 2004 FC 1170, the Court upheld the Board's finding that the incidents were merely "abhorrent" but not sufficiently atrocious or appalling to trigger the "compelling reasons" exception. See also, to the same effect, Oprysk, Vitaliy v. M.C.I. (F.C., no. IMM-5441-06), Mandamin, March 7, 2008; 2008 FC 326.

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Note 65

Shpati, Zef v. M.C.I. (F.C., no. IMM-1801-06), Snider, March 1, 2007; 2007 FC 237.

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Note 66

Alfaka Alharazim, Suleyman v. M.C.I. (F.C., no. IMM-1828-09), Crampton, October 22, 2010; 2010 FC 1044. See also Brovina, supra, footnote 42, where the Court that thre was no need to make a finding of past persecution because the RPD properly made a forward-looking analysis and concluded that the claimant would not suffer future persecution.

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Note 67

Arguello-Garcia, supra, footnote 55, at 288-289, per McKeown J.: "The Concise Oxford Dictionary of Current English, Clarendon Press, Oxford, 1990, contains the following definitions: "atrocious": 1 very bad or unpleasant … 2 extremely savage or wicked (atrocious cruelty). "Atrocity": 1 an extremely wicked or cruel act, esp. one involving physical violence or injury … "appalling": shocking, unpleasant; bad."

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Note 68

Kulla, Hasan v. M.C.I. (F.C.T.D., no. IMM-4707-99), MacKay, August 24, 2000, Justice MacKay commented:

In this case, while I am persuaded that the panel's conclusion is not adequately explained, having found the claimant's past experience to be 'cruel and harsh' but not 'atrocious' and 'appalling', ultimately, in my opinion the panel did not address the issue that was raised.

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Note 69

Dini, Majlinda v. M.C.I. (F.C.T.D., no. IMM-3562-98), Reed, June 24, 1999.

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Note 70

In Dini, Majlinda v. M.C.I. (F.C.T.D., no. IMM-2596-00), Gibson, March 22, 2001; 2001 FCT 217, the Court certified the following question:

In relation to a determination under s. 2(3) of the Immigration Act, does a finding of "compelling reasons" require a finding of "appalling" or "atrocious" past persecution?

The appeal in this case was dismissed by the Court of Appeal on May 21, 2002 because the appeal record was not filed on time.

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Note 71

Elemah, Paul Omorogbe v. M.C.I. (F.C.T.D., no. IMM-2238-00), Rouleau, July 10, 2001; 2001 FCT 779.

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Note 72

Adjibi, supra, footnote 43.

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Note 73

Suleiman, supra, footnote 58 This decision was followed in Kotorri, supra, footnote 59.

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Note 74

In Kazi, supra, footnote 17, the Court upheld a CRDD decision where the claimant did not provide evidence that he suffered continuing psychological after-effects of the previous persecution. See also Mongo, Parfait v. M.C.I. (F.C.T.D., no. IMM-1005-98), Tremblay-Lamer, May 6, 1999.

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Note 75

Arguello-Garcia, supra, footnote 55, at 289. See also Adaros-Serrano, Maria Macarena v. M.E.I. (F.C.T.D., no. 93-A-124), McKeown, September 31, 1993. Reported: Adaros-Serrano v. Canada (Minister of Employment and Immigration) (1993), 22 Imm. L.R. (2d) 31 (F.C.T.D.), at 38, where the Court directed the CRDD to consider (at the rehearing of the claim) the fact that the claimant suffered from a post-traumatic stress disorder. See also Kulla, Saimur, supra, footnote 64.

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Note 76

Jiminez, Wilfredo v. M.C.I. (F.C.T.D., no. IMM-1718-98), Rouleau, January 25, 1999. Relying on the evidence presented, the CRDD had concluded that the claimant's psychological state at the time of the hearing was premised on the severe brain injury he had suffered in Canada and possibly on contributing factors such as alcohol and drugs, and that, therefore, "there was insufficient evidence upon which to base a finding that the [claimant's] experience of persecution in El Salvador was so exceptional that it causes ongoing suffering of the order experienced by the applicant in Arguello-Garcia, supra, footnote 55." The Court found that the CRDD had erred in its approach and remitted the case back for a determination of whether or not the claimant's experiences in El Salvador alone met the exceptional circumstances envisioned by section 2(3) of the Immigration Act.

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Note 77

Hinson, Jane Magnanang v. M.C.I. (F.C.T.D., no. IMM-5034-94), Richard, July 18, 1996, at 5-6.

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Note 78

Hitimana, supra, footnote 57. In Gicu, supra, footnote 55, the Court noted that, given the claimant's adaptability and resourcefulness, it was difficult to conclude he had suffered from a psychological trauma so severe that he continued to be affected by it nearly ten years after it had occurred. See also Isacko, supra, footnote 36, where the Court held that the Board did not err in its conclusion that the claimant had not proven that he suffered permanent psychological consequences of the level required for section 108(4) of IRPA.

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Note 79

Igbalajobi, supra, footnote 63. In Hinson, supra, footnote 77 the Court held that it was improper to draw an adverse inference from the fact that the claimant delayed in obtaining a medical report, especially when the report in question diagnosed post-traumatic stress syndrome; nor does a delay in seeking psychological treatment in such a case mean that there was no adverse psychological effect.

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Note 80

Arguello-Garcia, supra, footnote 55.

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Note 81

In Velasquez, Ana Getrudiz v. M.E.I. (F.C.T.D., no. IMM-990-93), Gibson, March 31, 1994, the Court stated, in obiter, that a finding of "compelling reasons" may be based on the persecution inflicted on a family member (spouse). See also Yang, Yi Lan v. M.E.I. (F.C.T.D., no. 93-A-135), Nadon, February 2, 1994. In Bhardwaj, Shanti Parkash v. M.C.I. (F.C.T.D., no. IMM-240-98), Campbell, July 27, 1998. Reported: Bhardwaj v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 192 (F.C.T.D.), the CRDD applied section 2(3) of the Immigration Act to the eldest daughter of a family of claimants because she was profoundly affected by witnessing the shooting of her mother, but denied the other claims, including the mother's. The Court found that the CRDD disregarded psychiatric evidence regarding the effect of the incident on the mother.

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Note 82

Kulla, Saimur, supra, footnote 64.

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Note 83

Villegas Echeverri, Clara Ines v. M.C.I. (F.C., no. IMM-4046-10), Crampton, March 30, 2011; 2011 FC 390.

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Note 84

Shahid, supra, footnote 36, at 138. This is so notwithstanding the following passage in paragraph 136 of the UNHCR Handbook: "It is frequently recognized that a person who—or whose family—has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of régime in his country, this may not always produce a complete change in the attitude of the population, nor in view of his past experiences, in the mind of the refugee."

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Note 85

Hitimana, supra, footnote 57; Suleiman, supra, footnote 58.

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Note 86

In Aragon, Luis Roberto v. M.E.I. (F.C.T.D., no. IMM-4632-93), Nadon, August 12, 1994, the Court held that the CRDD had not properly considered the circumstances surrounding the claimant's return to El Salvador (namely, to see his mother). The torture he experienced had also occurred during an earlier visit, but this too was held not to be a bar to invoking section 2(3) of the Immigration Act. But see Ahmed, Jawad v. M.C.I. (F.C., no. IMM-6673-03), Mosley, August 5, 2004; 2004 FC 1076, where the Court upheld the Board's finding that compelling reason did not exist, noting that the claimant's voluntary return to his country was indicative of a lack of subjective fear. See also the discussion on reavailment in chapter 5, section 5.5.

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Note 87

Adjibi, supra, footnote 43. See also M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Décary, Létourneau, Nadon, March 5, 2008; 2008 FCA 84, which is discussed in chapter 2, section 2.1.1. Multiple Nationalities.

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Note 88

Chaudri, Tahir Ahmad Nawaz v. M.E.I. (F.C.A., no. A-1278-84), Thurlow, Hugessen, McQuaid, June 5, 1986. Reported: Chaudri v. Canada (Minister of Employment and Immigration) (1986), 69 N.R. 114 (F.C.A.); Diallo, Abdou Salam v. M.C.I. (F.C.T.D., no. A-1157-92), Noël, June 8, 1995.

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Note 89

Ghazizadeh, Reza v. M.E.I. (F.C.A., no. A-393-90), Hugessen, MacGuigan, Décary, May 17, 1993. Reported: Ghazizadeh v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 236 (F.C.A.).

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Note 90

Urur, Mohamed Ahmed v. M.E.I. (F.C.A., no. A-228-87), Pratte, Joyal, Walsh, January 15, 1988; Chen, Kang v. S.G.C. (F.C.T.D., no. A-1176-91), Gibson, August 6, 1993; Ali, Ismail Farah v. M.E.I. (F.C.T.D., no. A-1095-92), Noël, November 2, 1993; Vasuthevan, Nagamany v. M.E.I. (F.C.T.D., no. IMM-887-93), Jerome, March 23, 1994. In Cai, Heng Ye v. M.C.I. (F.C.T.D., no. IMM-1088-96), Teitelbaum, May 16, 1997, the Court underscored the importance of considering the claimant's activities both in the home country and abroad in combination.

In Biakona, supra, footnote 64, however, the Trial Division expressed the (unusual) view that "a refugee claimant cannot use as a reason for his or her fear of returning to his or her country of citizenship, the fact that while in Canada they were very active politically and thus should not be returned to his or her country of citizenship."

Return to note 90 referrer

Note 91

Barry, Abdoulaye v. M.C.I. (F.C.T.D., no. IMM-573-01), Pinard, February 26, 2002; 2002 FCT 203; Ghribi, Abdelkarim Ben v. M.C.I. (F.C., no. IMM-2580-02), Blanchard, October 14, 2003; 2003 FC 1191; Lai, Li Min v. M.C.I. (F.C., no. IMM-1849-04), Simpson, February 8, 2005; 2005 FC 179. On the other hand, in Manzila, Nicolas v. M.C.I. (F.C.T.D., no. IMM-4757-97), Hugessen, September 22, 1998, the Court held that the Board is required to consider the claimant's activities abroad even when it disbelieves the account of experiences in the home country. See also A. B. v. M.C.I. (F.C., no. IMM-3497-08), Gibson, March 27, 2009; 2009 FC 325. Reported: A.B. v. Canada (Minister of Citizenship and Immigration), [2010] 2 F.C.R. 75 (F.C.), a PRRA case involving a claimant who rejected Islam after he came to Canada.

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Note 92

In Vafaei, Farah Angiz v. M.E.I. (F.C.T.D., no. IMM-1276-93), Nadon, February 2, 1994, the Court referred specifically to paragraph 96 of the UNHCR Handbook. See also André, Marie-Kettelie v. M.E.I. (F.C.T.D., no. A-1444-92), Dubé, October 24, 1994, where the CRDD found that the claimant's participation in a large pro-Aristide demonstration in Montreal was not likely to cause her problems in Haiti.

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Note 93

Wang, Kong Ping v. M.C.I. (F.C.T.D., no. IMM-6298-99), Pelletier, November 14, 2001; 2001 FCT 1237. The Court certified a question as to whether in a sur place claim, it is necessary for the claimant to prove (a) that the Canadian media reports came to the attention of the authorities of his or her country of origin, and (b) that the information in the media reports was sufficient to allow the authorities to identify the claimant. The question was never answered as the appeal was discontinued.

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Note 94

Ghribi, supra, footnote 91.

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Note 95

Zhu, Yong Qin v. M.C.I. (F.C.T.D., no. IMM-5678-00), Dawson, September 18, 2001; 2001 FCT 1026. Reported: Zhu v. Canada (Minister of Citizenship and Immigration), [2002] 1 F.C. 379 (T.D.). The claimant, who arrived on a Korean vessel, had informed the RCMP about individuals later charged in Canada with offences relating to human smuggling and was subpoenaed to testify at their trial. He feared that if he returns to China he would be severely punished by the Chinese authorities and that the "snakeheads" in China seriously harm him, if not kill him.

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Note 96

Win, Ko Ko v. M.C.I. (F.C., no. IMM-1248-08), Shore, March 28, 2008; 2008 FC 398.

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Note 97

A. B., supra, footnote 91.

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Note 98

See Said, Mohamed Ahmed v. M.E.I. (F.C.T.D., no. 90-T-638), Teitelbaum, May 1, 1990, where the claimant continued to demonstrate against the Kenyan government after he had been ordered excluded from Canada; and Herrera, Juan Blas Perez de Corcho v. M.E.I. (F.C.T.D., no. A-615-92), Noël, October 19, 1993, where the claimant spoke out against the Cuban regime after claiming refugee status in Canada.

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Note 99

Ngongo, Ndjadi Denis v. M.C.I. (F.C.T.D., no. IMM-6717-98), Tremblay-Lamer, October 25, 1999.

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Note 100

Hathaway, The Law of Refugee Status, supra, footnote 5, page 39.

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Note 101

Asfaw, Napoleon v. M.C.I. (F.C.T.D., no. IMM-5552-99), Hugessen, July 18, 2000. See also Zewedu, Haimanot v. M.C.I. (F.C.T.D., no. IMM-5564-99), Hugessen, July 26, 2000.

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Note 102

Ghasemian, Marjan v. M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003; 2003 FC 1266.

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Note 103

Danian v. Secretary of State for the Home Department, [1999] E.W.J. No. 5459 online: QL.

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Note 104

Ejtehadian, Mostafa v. M.C.I. (F.C., no. IMM-2930-06), Blanchard, February 12, 2007; 2007 FC 158; Mohajery, Javad v. M.C.I. (F.C., no. IMM-2528-06), Blanchard, February 19, 2007; 2007 FC 185. For a similar case involving a Chinese convert, see Chen, Hanqi v. M.C.I. (F.C., no. IMM-5203-08), de Montigny, June 29, 2009; 2009 FC 677.

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Note 105

Mutangadura, Chipo Pauline v. M.C.I. (F.C., no. IMM-2553-06), Phelan, March 20, 2007; 2007 FC 298.

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Note 106

See Nthoubanza, discussed below in section 7.3.2. Changes in Country Conditions or Claimant's Personal Circumstances. See also Sani, Navid Shahnazary v. M.C.I. and M.P.S.E.P.C. (F.C., nos. IMM-5284-07 and IMM-5285-07), Lagacé, July 30, 2008; 2008 FC 913, where, given the doubts about the sincerity with respect to the claimant's conversion, the PRRA officer found that he could very well return to Islam once he was back in Iran and thus avoid being considered an apostate.

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Note 107

Kammoun, M. Hammadi Ben Hassen v. M.C.I. (F.C., no. IMM-4096-05), Tremblay-Lamer, February 3, 2006; 2006 FC 128.

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Note 108

Zandi, Reza v. M.C.I. (F.C., no. IMM-4168-03), Kelen, March 17, 2004; 2004 FC 411. See also Mohajery, supra, footnote 104.

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Note 109

Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.). For a discussion of this topic see Chapter 9, section 9.3.5. on Exit Laws.

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Note 110

Moradi, Ahmad v. M.C.I. (F.C.T.D., no. IMM-2317-97), MacKay, September 23, 1998. However, in Inigo Contreras, Victor v. M.C.I. (F.C., no. IMM-3954-05), von Finckenstein, May 16, 2006; 2006 FC 603, it was argued that the Board had failed to consider whether the claimant could be considered a refugee sur place based on the right to live openly and promote human rights which are fundamental to his dignity. The Court noted that: "This issue was not raised in the Applicant's PIF. There was also no evidence before the Board that the Applicant is an activist in Canada in a way that would attract public attention nor that his status as an activist would place him at risk in Mexico. His volunteer efforts have been that of a peer counsellor. No evidence has been provided to believe that role in Canada has created a sur place refugee claim. Although it appears the Applicant takes great pride and feels his activities are personally rewarding, that should not be the basis for granting refugee protection."

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Note 111

Maina, Ali Adji v. M.C.I. (F.C.T.D., no. IMM-1221-99), Gibson, March 14, 2000; Yang, Hua v. M.C.I. (F.C.T.D., no. IMM-380-00), Gibson, November 24, 2000. But see Igbinosun, Nelson v. M.C.I. (F.C.T.D., no. IMM-7410-93), McGillis, November 17, 1994, M.C.I. v. Mbouko, Augustin (F.C. No. IMM-1988-04), Lemieux, January 31, 2005; 2005 FC 126, and M.C.I. v. Habimana, Djuma, (IMM-5616-08), Pinard, January 6, 2010, 2010 FC 16, where the Court held that the Board did not properly assess the impact of the contact with the foreign authorities, i.e., were they already aware of the claimant's situation or was it disclosed that the claimant had claimed refugee protection in Canada. An analysis of those factors is a determining factor in deciding whether the claimant was endangered by the actions of the Canadian authorities.

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Note 112

Ghazizadeh, supra, footnote 89, at 1-2 (unreported).

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Note 113

Tang, Xiaoming v. M.C.I. (F.C.T.D., no. IMM-3650-99), Reed, June 21, 2000.

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Note 114

Makala, François v. M.C.I. (F.C.T.D., no. IMM-300-98), Teitelbaum, July 17, 1998. Reported: Makala v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 251 (F.C.T.D.).

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Note 115

Nthoubanza, Arthur Jholy v. M.C.I. (F.C.T.D., no. IMM-207-98), Denault, December 17, 1998.

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Note 116

In M.C.I. v. Asaolu, Daniel Oluwafemi (F.C.T.D., no. IMM-237-98), Campbell, July 31, 1998. Reported: Canada (Minister of Citizenship and Immigration) v. Asaolu (1998), 45 Imm. L.R. (2d) 190 (F.C.T.D.), Canadian immigration authorities sent the claimant's story and photograph to a Canadian visa officer in Nigeria to facilitate an investigation of his claim of persecution. The Court considered paragraphs 94-96 of the UNHCR Handbook. In Mutamba, Phydellis v. M.C.I. (F.C.T.D., no. IMM-2868-98), Pinard, April 15, 1999, Canadian authorities in Nairobi and Harare made inquiries of the Zimbabwean government with respect to the claimant's passport application.

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