CHAPTER 9 - PARTICULAR SITUATIONS

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TABLE OF CONTENTS

  1. 9.1. INTRODUCTION
  2. 9.2. CIVIL WAR OR OTHER PREVALENT CONFLICT
    1. 9.2.1. Two Approaches: Comparative and Non-Comparative
      1. 9.2.1.1. Background
      2. 9.2.1.2. The Non-Comparative Approach is the Legal and Preferred Test
  3. 9.3. PROSECUTION, OR PERSECUTION FOR A CONVENTION REASON?
    1. 9.3.1. Limits to Acceptable Legislation and Enforcement
    2. 9.3.2. Laws of General Application
    3. 9.3.3. Policing Methods, National Security and Preservation of Social Order
    4. 9.3.4. Enforcement and Serious Possibility
    5. 9.3.5. Exit Laws
    6. 9.3.6. Military Service: Conscientious Objection, Evasion, Desertion
    7. 9.3.7. One-Child Policy of China
    8. 9.3.8. Religious or Cultural Mores
      1. 9.3.8.1. Restrictions upon Women
      2. 9.3.8.2. Ahmadis from Pakistan
  4. 9.4. INDIRECT PERSECUTION AND FAMILY UNITY
  5. TABLE OF CASES

9. PARTICULAR SITUATIONS

9.1. INTRODUCTION

This Chapter explores situations where more than one element of the Convention refugee definition is involved. At issue is not only whether what the claimant faces is persecution, but also whether there is a nexus to one of the Convention refugee grounds. The situations can be complex and difficult to analyze: the key is to identify what requirements are imposed by each element and to discern which circumstances in the situation go to which element.

9.2. CIVIL WAR OR OTHER PREVALENT CONFLICT

The core of the case law in this area consists of two decisions from the Court of Appeal. The first of these is Salibian,Note 1 which sets out four general principles:Note 2

It can be said in light of earlier decisions by this Court on claims to Convention refugee status that
  1. the applicant does not have to show that he had himself been persecuted or would himself be persecuted in the future;Note 3
  2. the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged;
  3. a situation of civil war in a given country is not an obstacle to a claim provided the fear felt is not that felt indiscriminately by all citizens as a consequence of the civil war, but that felt by the applicant himself, by a group with which he is associated, or, even, by all citizens on account of a risk of persecution based on one of the reasons stated in the definition; and
  4. the fear felt is that of a reasonable possibility that the applicant will be persecuted if he returns to his country of origin ….

The Court goes on to adopt the following description of the applicable law (provided by Professor Hathaway):Note 4

In sum, while modern refugee law is concerned to recognize the protection needs of particular claimants, the best evidence that an individual faces a serious chance of persecution is usually the treatment afforded similarly situated persons in the country of origin. In the context of claims derived from situations of generalized oppression, therefore, the issue is not whether the claimant is more at risk than anyone else in her country, but rather whether the broadly based harassment or abuse is sufficiently serious to substantiate a claim to refugee status. If persons like the applicant may face serious harm for which the state is accountable, and if that risk is grounded in their civil or political status, then she is properly considered to be a Convention refugee.

The second of the leading precedents is the very brief decision in Rizkallah,Note 5 where the Court of Appeal said:

To succeed, refugee claimants must establish a link between themselves and persecution for a Convention reason. In other words, they must be targeted for persecution in some way, either personally or collectively.

… the evidence, as presented to us, falls short of establishing that Christians in the claimant's Lebanese village were collectively targeted in some way different from the general victims of the tragic and many-sided civil war.Note 6

Since Salibian and Rizkallah, there have been several additional Federal Court rulings in cases involving civil war. Most of these subsequent decisions have emanated from the Trial Division; a number have cited, and purported to apply, Salibian and/or Rizkallah; none has taken issue with Salibian or Rizkallah. Neither expressly nor by implication do these later cases yield much in the way of additional, clear principles.

One further principle which has emerged is that a claimant's membership in one of the two groups involved in a two-sided conflict does not by itself establish that the claimant is a Convention refugee.Note 7

9.2.1. Two Approaches: Comparative and Non-ComparativeNote 8

9.2.1.1. Background

The case law seems to suggest that, in considering whether there is a nexus between the harm feared and a Convention ground, the judges are taking two different approaches to civil war claims and to the application of Salibian and Rizkallah.

It will be noted that in Rizkallah, the claim was seen as deficient because those constituting the claimant's group were not "collectively targeted in some way different from the general victims of the … civil war." Furthermore, Salibian contains the proviso that, in order for a claim to succeed, the claimant's fear must not be "that felt indiscriminately by all citizens as a consequence of the civil war". In some cases where these or similar phrases have been invoked,Note 9 it appears that the Trial Division has seen this language as authority for adopting a comparative approach, which involves comparing the claimant's predicament with the circumstances of other persons in the same country, and requiring that the claimant's predicament be worse than the predicaments of other people.Note 10

In other cases, the Court of Appeal and the Trial Division have taken the position that a claimant who belongs to a groupNote 11 which is at risk of attack by some second group may qualify as a Convention refugee - and, in particular, has the requisite nexus - even if persons other than the claimant and groups other than the claimant's group are also at risk of attack by the same or different attackers.

There have also been cases in which the evidence was simply inadequate to make out a claim, regardless of which approach might have been used.Note 12 And there have been cases in which the Court relied on the fact that the specific claimant possessed particular risk factors, might have been personally targeted, and might have faced a particularly elevated level of risk.Note 31 It must also be acknowledged that, where several cases are concerned, it is not really possible to say with certainty what was the basis of the Court's disposition, which elements of the Refugee Division's analysis the Court endorsed or rejected, and what propositions may properly be inferred from the Court's disposition.Note 14

According to the non-comparative approach,Note 15 a claim which arises in a context of widespread violence must meet the same conditions as any other claim. The content of those conditions is no different for such a claim, nor is the claim subject to extra requirements or disqualifications. Thus, under this approach, the Refugee Protection Division would consider:

  • Serious harm: whether the treatment that the claimant anticipates would amount to serious harm. The question is whether the harm which this particular claimant might experience is serious, not whether the claimant is at risk of harm greater than that to which some other group, or some other person in the claimant's own group, might be subjected.
  • Risk of harm: whether there is a reasonable chance that the claimant would experience the apprehended harm. The issue is not whether this particular claimant carries a degree of risk greater than that which attaches to some other person or group.
  • Nexus:Note 16 whether there is a nexus between the anticipated inflicting of harm upon the claimant and one of the Convention grounds.Note 17 It is a matter of identifying the particular source(s) or perpetrator(s) who might inflict harm upon this particular claimant, and determining whether that perpetrator's reason for inflicting harm would tally with one of the grounds.Note 18 The claimant is not to be disqualified because other persons in the claimant's group or in different groups might also be targeted for similar reasons. Nor is a non-combatant claimant to be fixed with some sort of "collective guilt" because combatant members of the claimant's group are inflicting harm on members of other groups.

A requirement that the claimant be in a predicament which is worse than the circumstances of fellow nationals may be difficult to reconcile with certain passages in Salibian and Rizkallah and with the terms of the Convention refugee definition. Such a requirement seems to have little if any support in post-Rizkallah decisions from the Court of Appeal, and may be at odds with those decisions. The passages in Salibian and Rizkallah which have sometimes been referred to when engaging in a hardship comparison contain a measure of vagueness; certainly they are not substitutes for an element-by-element analysis of a claim, nor do they negate Salibian's assertion that a claimant is not barred from succeeding because his or her problems have arisen in the context of a civil war.Note 19

9.2.1.2. The Non-Comparative Approach is the Legal and Preferred Test

In Ali, Shaysta-Ameer,Note 20 the Court of Appeal affirmed that the proper test for persecution in a civil war context is the non-comparative approach set out in the Salibian and Rizkallah cases and advocated in the Chairperson's Guidelines, Civilian Non-Combatants Fearing Persecution in Civil War Situations.Note 21 The Court cited, with approval, the following passages from the Guidelines:

Non-comparative Approach

The non-comparative approach to the assessment of a claim is the approach advocated in these Guidelines. This approach is more in accord with the third principle set out in Salibian, the decisions of the Court of Appeal in Rizkallah and Hersi, Nur Dirie, as well as the wording of the Convention refugee definition. With this approach, instead of an emphasis on comparing the level of risk of persecution between the claimant and other individuals (including individuals in the claimant's own group) or other groups, the Court examines the claimant's particular situation, and that of her group, in a manner similar to any other claim for Convention refugee status.

The issue is not a comparison between the claimant's risk and the risk faced by other individuals or groups at risk for a Convention reason, but whether the claimant's risk is a risk of sufficiently serious harm and is linked to a Convention reason as opposed to the general, indiscriminate consequences of civil war. A claimant should not be labelled as a "general victim" of civil war without full analysis of her personal circumstances and that of any group to which she may belong. Using a non-comparative approach results in a focusing of attention on whether the claimant's fear of persecution is by reason of a Convention ground. (footnotes omitted)

In Fi,Note 22 the Federal Court cited with approval the following statement referred to in the Guidelines: "if one of the warring parties singles out a person or group of persons for reasons of race, political opinion or one of the other elements enumerated in the refugee definition and subjects it serious human rights violations this clearly constitutes persecution".

9.3. PROSECUTION, OR PERSECUTION FOR A CONVENTION REASON?

9.3.1. Limits to Acceptable Legislation and Enforcement

Any state is entitled to have, and to enact, laws which will contribute to the better, safer, more just functioning of the national community and its government. And any state is entitled to impose penalties upon those who break its laws. However, from the standpoint of international human rights law, there is a line over which the state cannot legitimately step. To determine whether the state has limited itself to its proper sphere or has overstepped, the Refugee Protection Division must be mindful of the distinction between two kinds of cases: (a) cases in which the treatment foreseen for the claimant would be punishment for nothing other than the breach of a law that does not violate human rights, and does not adversely differentiate on a Convention ground, either on its face or in its application; and (b) cases in which the claimant's actions might contravene a law of his homeland, but in which the law's terms or its anticipated enforcement might infringe upon human rights and adversely differentiate.

9.3.2. Laws of General Application

The Federal Court has dealt at some length with questions relating to "laws of general application". This term refers to a law which, on its face, applies to a country's entire population, without differentiation; and the term is not properly employed if the law in question targets only some subset of the population.Note 23 For a time, the leading decision on this topic was Musial;Note 24 however, in the more recent case of Zolfagharkhani,Note 25 the Court of Appeal examined the theme in greater depth and provided interpretation of Musial. Therefore, Zolfagharkhani must now be regarded as pre-eminent. Musial should be used with caution, and only after taking Zolfagharkhani into account.

In Zolfagharkhani, the Court rejected the proposition that, so long as the action taken by a government against a claimant is the enforcement of "an ordinary law of general application", the government is necessarily engaging in prosecution and not persecution.Note 26 In a dictatorial or totalitarian state, any ordinary law of general application may well be an act of political oppression.Note 27

The Court of Appeal in ZolfagharkhaniNote 28 set forth "some general propositions relating to the status of an ordinary law of general application in determining the question of persecution":

  1. The statutory definition of Convention refugee makes the intent (or any principal effect)Note 29 of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution.Note 30
  2. But the neutrality of an ordinary law of general application, vis-à-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required.Note 31
  3. In such consideration, an ordinary law of general application, even in non-democratic societies, should … be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory.Note 32
  4. It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground.

Seriousness of harm is another issue which has been addressed in connection with laws of general application. It is quite possible that a law or policy of general application may well be violative of basic human rights.Note 33 Also, in Cheung it was decided that a law of general application may be persecutory where the penalty is disproportionate to the objective of the law, regardless of the authorities' intent:

… if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in furtherance of a legitimate end is still brutality.Note 34

In Chan (S.C.C.), Mr. Justice La Forest approved the comments of Linden J.A. regarding "state authority arguments" (as they were called by La Forest J.).Note 35 And La Forest J. provided his own observations with respect to the "legitimate end" idea:

... I do not in general consider it appropriate for courts to make implicit or explicit pronouncements on the validity of another nation's social policies. In the present case, the full extent of the Chinese population policy is unknown in this country and undue speculation as to its legitimacy serves no purpose. Whether the Chinese government decides to curb its population is an internal matter for that government to decide. Indeed, there are undoubtedly appropriate and acceptable means of achieving the objectives of its policy that are not in violation of basic human rights. However, when the means employed place broadly protected and well understood basic human rights under international law such as the security of the person in jeopardy, the boundary between acceptable means of achieving a legitimate policy and persecution will have been crossed. It is at this point that Canadian judicial bodies may pronounce on the validity of the means by which a social policy may be implemented in an individual case by either granting or denying Convention refugee status ... [Emphasis added.]Note 36

(The distinction between the authorities' objective and their means of achieving it is discussed further in section 9.3.3. of this chapter.)

Furthermore, a penalty which is disproportionate to the offence may constitute persecution.Note 37 When imposed for certain offences, the death penalty may not constitute persecution.Note 38

If the Refugee Protection Division applies the term "law of general application", it must be careful to include within this characterization only what is actually authorized by the law in question. Where a given policy constitutes a law of general application, a particular sanction used to enforce that policy may not be a law of general application.Note 39 And even if such a law does figure in the claim, the Division certainly must not disregard measures which are beyond the law. Where there is evidence of extra-judicial punishment or (other) lack of due legal process, consideration must not be limited to the actual legislation itself.Note 40 Indeed, perversions in the application of the law, such as the bringing of a trumped-up charge, and interference in the due process of law, may be aspects of persecutory treatment.Note 41 In one instance, the Court of Appeal has said that pursuit of a claimant for refusing to carry out a government order will constitute mere prosecution only if the order was a "valid" one, and not one that was "illegal" or with "no legal foundation".Note 42

If enforcement of the law against the claimant would proceed in accordance with due process, and if the sanctions for violating a particular law are not serious, the situation is not one of persecution.Note 43

9.3.3. Policing Methods, National Security and Preservation of Social Order

In some situations, the argument for the acceptability of state actions may rely not on the presence of any particular authorizing law (if any), but instead on the idea that those actions were aimed at the preservation of social order, against dangers such as crime and terrorism. Indeed, the actions in question, rather than being approved by law, may be of very doubtful legality.

In this context as well, the courts have grappled with the question of whether harmful conduct may be excused by the purpose which prompts the authorities to engage in the conduct.Note 44 In the first place, the above-quoted statement from Cheung - that "[b]rutality in furtherance of a legitimate end is still brutality"Note 45 - is again apposite. It is not rendered less relevant by the fact that the brutality is perpetrated without the screen, or superficial legitimation, of an authorizing law. Moreover, in Thirunavukkarasu,Note 46 a later decision dealing more directly with the notion of preserving the social order, the Court of Appeal ruled that "beatings of suspects can never be considered 'perfectly legitimate investigations' [into criminal or terrorist activities], however dangerous the suspects are thought to be."Note 47 The Court also affirmed that

… the state of emergency in Sri Lanka cannot justify the arbitrary arrest and detention as well as beatings and torture of an innocent civilian at the hands of the very government from whom the claimant is supposed to be seeking safety.Note 48

It is inappropriate to dismiss mistreatment on the theory that, by transgressing the law, the claimant forfeited any right to complain about any treatment that was meted out to him or her in response. Rather than stating simply that the claimant could not expect to receive the authorities' approval for committing illegal acts, the Refugee Protection Division must determine whether the treatment suffered by the claimant constituted persecution in the circumstances.Note 49

In a number of cases, the Trial Division has applied reasoning of the kind that was subscribed to in Cheung and Thirunavukkarasu.Note 50 However, there have also been cases in which such reasoning has not been applied by the Trial Division.Note 51 In some of these latter cases, the Trial Division judgments appear to contradict the letter and spirit of the opinions from the Court of Appeal.

According to the Trial Division, national security and peace and order are valid social objectives of any state, and temporary derogation of civil rights in an emergency does not necessarily amount to persecution.Note 52 In this regard, before finding mistreatment to be non-persecutory because there is an emergency, the Refugee Protection Division should consider several matters: Is there indeed an emergency? Is the particular right that is being violated a derogable right, or is it non-derogable?Note 53 If the right is derogable, what is the nature of the particular emergency, what is the extent of the particular derogation, and is there a logical nexus between the emergency and the derogation?

The Trial Division has said that short-term detentions for the purpose of preventing disruptionsNote 54 or dealing with terrorismNote 55 do not constitute persecution. It may also be proper to conclude that some forms of violence, including beatings, do not amount to persecution in the circumstances of a particular case, even though they are reprehensible and violative of human rights;Note 56 for example, the mistreatment may not have been repetitive or sufficiently severe,Note 57 and there may be no prospect of its being repetitive or sufficiently severe in the future. However, given Cheung, and Thirunavukkarasu, the Refugee Protection Division should be cautious about deeming violent conduct to be non-persecutory.Note 58

9.3.4. Enforcement and Serious Possibility

Even if the evidence speaks of some harm that would qualify as serious, the Refugee Protection Division must consider whether there is a serious possibility that the harm will actually come to pass.Note 59 A statute which outlaws the claimant's conduct or characteristic may be in existence, and it may provide for unconscionably severe punishment for that conduct or characteristic, but this does not necessarily mean there is a serious possibility that the punishment will be inflicted on the claimant. The Supreme Court has emphasized that, in a determination as to whether the claimant's fear is objectively well founded, the relevant factors include the laws in the claimant's homeland, together with the manner in which they are applied. In this connection, the Court cited paragraph 43 of the UNHCR Handbook.Note 60 Enforcement measures may vary from area to area within a country, and if this is the case, "the reasonableness of a fear of persecution depends, inter alia, on the practices of the relevant local authority".Note 61

A pattern of non-enforcement might imply that there is less than a serious possibility.Note 62

9.3.5. Exit Laws

Some countries have laws which impose restrictions on travel abroad. Such laws may make it an offence to depart without prior permission (illegal departure),Note 63 or to stay abroad beyond some stipulated period (overstay),Note 64 or to visit certain countries.Note 65 Where such laws exist, generally sanctions for breaching them are also on the books. In some instances there may, in addition, be provision for extending the authorized travel period before it ends, or for obtaining retroactive authorization of travels that were not approved in advance.

In Valentin, Marceau J.A. spoke to those situations in which "the claimant may face criminal sanctions in his or her own country for leaving the territory without authorization or for remaining abroad longer than his or her exit visa allowed."Note 66 His Lordship stated:Note 67

Counsel then challenged the Board's rejection of the argument based on the existence of section 109 of the Czech Criminal Code [the exit law] and the fear of imprisonment that the section aroused in the claimants … [C]ounsel recalled that there was one school of thought … [which was] prepared to admit that the mere fear of punishment under a provision such as section 109 … could amount to a well-founded fear of persecution and provide valid grounds for a refugee claim. We know that some supporters of this theory argue a sort of presumption that the authorities of the national State will automatically and inevitably interpret the decision of their fellow-citizen to leave the country without authorization, or to remain abroad beyond the time provided, as evidence of political opposition. Counsel acknowledged that this is an extreme position, which the vast majority of commentators rejected, and did not urge its acceptance per se …

Neither the international Convention nor our Act, which is based on it, as I understand it, had in mind the protection of people who, having been subjected to no persecution to date, themselves created a cause to fear persecution by freely, of their own accord and with no reason, making themselves liable to punishment for violating a criminal law of general application. I would add … that the idea does not appear to me even to be supported by the fact that the transgression was motivated by some dissatisfaction of a political nature …, because it seems to me, first, that an isolated sentence can only in very exceptional cases satisfy the elements of repetition and relentlessness found at the heart of persecutionNote 68 …, but particularly because the direct relationship that is required between the sentence incurred and imposed and the offender's political opinion does not exist.

Valentin effectively bars self-induced refugee status. That decision starts from the premise that a claimant has a valid exit visa. It then bars the claimant from overstaying the visa and relying on the self-created overstay as a ground of persecution.Note 69 However, the Board must consider the validity of the exit visa and the circumstances under which it was obtained. Where the claimant had to pay a bribe to obtain the security clearance necessary to obtain the visa, that puts the validity of the exit visa into question.Note 70

Where the claimant has violated an exit law, the decision to punish the claimant for that infraction, or to impose a certain degree of punishment, might be due to some characteristic of the claimant such as his political record.Note 71 Repercussions beyond the statutory sentence may suggest that the actions of the authorities are persecutory.Note 72

9.3.6. Military Service: Conscientious Objection, Evasion, Desertion

The claimant's problems may be connected with a disinclination to serve in the military. Either the claimant entered the military and left it without authorization (i.e., the claimant deserted);Note 73 or the claimant was ordered to report for service, but refused to report or refused to be inducted; or the claimant has not yet received a call-up, but anticipates that the order will be forthcoming and does not wish to comply.

The courts have established some very basic points of departure for the analysis of such claims. Thus, conscientious objectors and army deserters are not automatically included in the Convention refugee definition, nor is a person precluded from being a Convention refugee because the person is a conscientious objector or deserter.Note 74 It is not persecution for a country to have compulsory military service.Note 75 An aversion to military service or a fear of combat is not in itself sufficient to justify a fear of persecution.Note 76

Proceeding to a more detailed analysis of the claim, the Refugee Protection Division must consider whether the circumstances disclose a nexus between the treatment feared and one of the Convention grounds. ZolfagharkhaniNote 77 is the leading case with respect to nexus (and other factors) in military-service situations.Note 78 The principles quoted from that case earlier onNote 79 should be referred to for guidance when determining whether the claimant's difficulties regarding service should be ascribed to a Convention ground, or instead should be considered punishment for a violation of a law of general application.

However, as an aside from Zolfagharkhani, the most recent decision of the Federal Court of Appeal in AtesNote 80 has put into question whether conscientious objection to military service can ever be considered to be a ground for claiming Convention refugee status.Note 81 The Court answered, without any analysis, the following certified question in the negative:

In a country where military service is compulsory, and there is no alternative thereto, do repeated prosecutions and incarcerations of a conscientious objector for the offence of refusing to do his military service, constitute persecution based on a Convention refugee ground?"

Zolfagharkhani indicates that it is not the claimant's motivation for refusing to serve which is relevant, but rather the intent or principal effect of the conscription law.Note 82 In accordance with this guideline, one must ask whether the reaction of the authorities to the claimant's refusal to serve would be a function of some Convention attribute which the claimant has, or would be perceived by the authorities as having (a political opinion often being the likeliest possibility).Note 83 Even where the claimant has no strong convictions which should be permitted to interfere with the claimant's serving, his refusal might be regarded by the authorities as an indication of an opinion which is frowned upon by them.

However, it would seem that the motivation of the claimant has not been completely discarded as a factor in claims concerning military service, although the cases do not make clear to which element or elements (nexus, serious harm) it may relate, and exactly how it should be worked into the consideration of a particular element. In Zolfagharkhani itself, the Court of Appeal focused on the claimant's reason of conscience for not wishing to serve, and laid considerable emphasis on the fact that the particular combat technique to which the claimant objected was abhorred by the international community; but the Court did not provide much explanation as to how such attending to the claimant's reason of conscience was to be reconciled with the view that the claimant's motivation is not relevant.Note 84 Furthermore, in subsequent decisions, the Trial Division has repeatedly considered the claimant's conscience, as well as the attitude of the international community to operations criticized by the claimant. Reliance has even been placed explicitly upon the "applicant's motive".Note 85 The reader should bear in mind these ambiguities in the case law when reviewing the following observations on reasons-of-conscience claims.Note 86

When addressing a case in which the claimant invokes reasons of conscience for his aversion to performing military service, the Refugee Protection Division must decide whether the particular reasons adduced are of sufficient significance.

As a sidebar to this issue, there is some debate - and some confusion - about the meaning of the term "conscientious objector". In Popov, the Trial Division indicated that, "in the usual sense", this term applied to a person who "was a pacifist or was against war and all militarism on the grounds of principle, either religious or philosophical."Note 87 It may be correct to reserve this particular term for persons who are opposed to all militarism; but at the same time, it must be appreciated that what is important for the determination of a claim is not whether this particular label fits.

The important question is whether a claimant's reason of conscience will be sufficiently significant only if it entails an opposition to all militarism (or is otherwise broad in scope). In Zolfagharkhani, the Court of Appeal indicated that a claimant's objection may be entitled to respect even if it is more specific: where the claimant did not object to military service in general or to the particular conflict, but was opposed to the use of a particular category of weapon (namely, chemical weapons), the Court found his objection to be reasonable and valid.Note 88 Similarly, the Trial Division has held that a claimant may object to serving in a particular conflict, rather than objecting to military service altogether, and may still be a Convention refugee.Note 89

This is not to say that any narrow or limited objection of conscience will suffice. The objection may be regarded as sufficiently serious if the military actions objected to are judged by the international community to be contrary to basic rules of human conduct.Note 90 However, a military's operations are not to be characterized as contravening international standards if there are only isolated violations of those standards. Instead, there must be offending military activity by the military forces which is condoned in a general way by the state.Note 91

The serious harm that is a requisite for persecution may be found in the forcing of the claimant to perform military service; where reasons of conscience are involved, there is also a violation of the claimant's freedom of conscience; where military actions violate international standards, the claimant might be forced into association with the wrongdoing.Note 92 One must also bear in mind that some conscription activities may be extra-legal, and may therefore lack any basis for claiming to constitute legitimate exercises of state authority. An organization may have de facto authority and an ability to coerce persons into performing military service, yet not be a legitimate government, and have no right to conscript.Note 93

If a call-up for military service would not necessarily result in the claimant's being compelled to perform military service, the injury to the claimant's interests is less, and the legitimacy of the demands placed on the claimant by the state looms large. Therefore, where objections of conscience may enable the claimant to obtain an exemption from service, or assignment to alternative service (i.e., non-military service, or non-combat service, or service outside a particular theatre of operations), the conscription law may not be inherently persecutory.Note 94

Nor is there persecution if the penalties for refusing to serve are not harsh,Note 95 except perhaps where the refusal to serve occurs in the context of a military operation condemned as contrary to basic rules of human conduct.Note 96 The Refugee Protection Division must consider the actual practice in the treatment of deserters, and not just the penalty prescribed by law.Note 97

Somewhat akin to the idea that the claimant would not be persecuted if he would not be forced into military activity is the notion that the Refugee Protection Division should not endorse an objection to compulsory military service in the country of reference if the claimant chose to immigrate to that country, knowing that compulsory service existed there.Note 98

The availability of state protection for deserters became the key issue in a series of cases involving U.S. servicemen during the war in Iraq. Two individuals, Hinzman and Hughey, voluntarily enlisted in the U.S. military. During their time in the military, they developed an objection to the war in Iraq, deserted, and came to Canada where they made refugee claims.

Their claims to refugee protection were rejected by the IRB. The RPDNote 99 found that the claimants would be afforded the full protection of a fair and independent military and civilian judicial process in the U.S. As a result they had not rebutted the presumption of state protection and their claims for refugee protection must fail. The RPD also found that they were not conscientious objectors because; (1) their decision to desert the U.S. military was motivated by opposition to a specific war and not by objection to war in general and (2) because the war in Iraq did not fall within the meaning of paragraph 171 of the UNHCR Handbook as being waged contrary to basic rules of human conduct. Lastly, the RPD found that the punishment they would likely receive as a result of their desertion would not be applied to them in a discriminatory way and would not be excessive or disproportionately severe.

Mactavish J., of the Federal CourtNote 100 upheld the RPD decisions, finding that paragraph 171 of the Handbook referred to "on the ground" conduct of a soldier and not to the legality of the war itself and that the claimants had not established that they would have been involved in unlawful acts had they gone to Iraq. Mactavish J. certified the following question:

When dealing with a refugee claim advanced by a mere foot soldier, is the question whether a given conflict may be unlawful in international law relevant to the determination which must be made by the Refugee Division under paragraph 171 of the UNHCR Handbook?

The Federal Court of Appeal,Note 101 in a unanimous decision, declined to answer the certified question. Evans J., writing for the Court, found that Hinzman and Hughey had not sufficiently pursued the opportunities to obtain state protection in the United States before asking for international protection. The following statements by the FCA are of interest:

  • The presumption of state protection applies equally to cases where an individual claims to fear prosecution by non-state entities and to cases where the state is alleged to be a persecutor. This is particularly so where the home state is a democratic country like the United States.
  • A claimant coming from a democratic country will have a heavy burden when attempting to show that he should not have been required to exhaust all of the recourses available to him domestically before claiming refugee status.

9.3.7. One-Child Policy of China

The People's Republic of China has a policy which, subject to exceptions, restricts each couple to having one child. A variety of sanctions are used in attempts to secure compliance with the policy.Note 102

The Canadian courts have generated three leading decisions regarding this matter. In the earliest of the three, Cheung,Note 103 the Court of Appeal declared the claimants to be Convention refugees: they were a woman who was facing forced sterilization, and her minor daughter who had been born in violation of the policy. Cheung was a unanimous decision of three judges.

Next came the Court of Appeal's decision in Chan,Note 104 where the majority found against a man who was allegedly facing forced sterilization. Two judges (Heald and Desjardins, JJ.A.) constituted the majority; the third (Mahoney J.A.), who had also been part of the bench in Cheung, dissented. Each of the three Court of Appeal judges in Chan produced a separate set of reasons, and there were significant differences even between the two majority decisions. It should be noted that the Supreme Court's ruling in WardNote 105 came out after Cheung but before Chan (F.C.A.). The Court of Appeal in Chan considered both Cheung and Ward.

Chan (F.C.A.) was appealed, yielding the third of the principal authorities, the decision of the Supreme Court in Chan.Note 106 Again there was a split decision: by a four-to-three majority, the Court dismissed the appeal, affirmed the decisions of the Court of Appeal and the Refugee Division, and found against the appellant (claimant).

The crux of the judgment of the Supreme Court majority (per Major J.) was that the evidence was inadequate to make out the claimant's allegations - notably, his allegation that there was a serious possibility he would be physically coerced into undergoing sterilization. Apart from recording views expressed by the Court of Appeal in Chan (including views concerning Cheung and Ward), Mr. Justice Major declined to discuss, or rule on, certain legal issues which had occupied that lower court in this case: e.g., whether forced sterilization constitutes persecution; whether the claim involved a particular social group; and whether the claimant's having a second child was to be construed as an act which expressed a political opinion (or an act which would be perceived by the authorities as the expression of a political opinion).

The Supreme Court's dissenting minority (per La Forest J.) had a different appreciation of the evidence, and would have left it to the Refugee Division to perform a further assessment of the evidence; however, in finding that the appeal should be allowed, the minority also addressed some of the legal issues which the majority had bypassed. The minority's comments on these issues carry considerable persuasive authority, inasmuch as they were not contradicted by the majority, and represent the views of a significant number of Supreme Court justices; furthermore, insofar as these comments are an explanation of the Ward decision, it must be noted that the explanation was provided by the author of that decision, Mr. Justice La Forest.

Further particulars of these three leading decisions are set forth in the material that follows.

* * *

In the context of claims involving the one-child policy, the Court of Appeal has reiterated that all elements of the Convention refugee definition must be present. Thus, it has been noted that, where the claim concerns the breach of a valid policy, abhorrence of the penalty, or the presence of a well-founded fear of persecution, does not justify a finding that the claimant is a Convention refugee; it is also necessary that the punishment be for a Convention reason.Note 107 Conversely, if a link to a Convention ground is established, the claimant must still show that he or she has a well-founded fear of persecution.Note 108

On the issue of serious harm, both in Cheung and in Chan (F.C.A.) it was held that the anticipated mistreatment qualified. Thus, forced or strongly coercedNote 109 sterilization constitutes persecution, whether the victim is a womanNote 110 or a man.Note 111 In Cheung, Linden J.A. explained this conclusion as follows:Note 112

Even if forced sterilization were accepted as a law of general application, that fact would not necessarily prevent a claim to Convention refugee status. Under certain circumstances, the operation of a law of general application can constitute persecution. In Padilla …, the Court held that a Board must consider extra-judicial penalties which might be imposed. Similarly, in our case, the appellant's fear is not simply that she may be exposed to the economic penalties authorized by China's one child policy. That may be acceptable. Rather, the [claimant], in this case, genuinely fears forced sterilization; her fear extends beyond the consequences of the law of general application to include extraordinary treatment in her case that does not normally flow from that law … Furthermore, if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in furtherance of a legitimate end is still brutality.

The forced sterilization of women is a fundamental violation of basic human rights … The forced sterilization of a woman is a serious and totally unacceptable violation of her security of the person. Forced sterilization subjects a woman to cruel, inhuman and degrading treatment… I have no doubt, then, that the threat of forced sterilization can ground a fear of persecution within the meaning of Convention refugee under the Immigration Act.

In Chan (S.C.C.), Mr. Justice La Forest, in dissent, stated:

... [W]hatever technique is employed, it is utterly beyond dispute that forced sterilization is in essence an inhuman and degrading treatment involving bodily mutilation, and constitutes the very type of fundamental violation of basic human rights that is the concern of refugee law.Note 113

The Trial Division has held that forced abortion, being an invasion of a woman's body, is equivalent to or worse than forced sterilization and, accordingly, constitutes persecution.Note 114

Regarding the requirement that the fear of persecution be well founded, the Trial Division observed that the issue was not whether the female claimant had been forced to undergo an abortion in the past, but instead whether there was a reasonable chance she would be forced to undergo one if returned to China.Note 115

Nexus was the principal area of disagreement between Cheung and Chan (F.C.A.). The two cases offered quite different views on the issue of whether the feared sterilization would be inflicted by reason of a Convention ground. Cheung held that there was a targeted social group;Note 116 the majority in Chan (F.C.A.) found otherwise.Note 117 Speaking for the majority in Chan (S.C.C.), Mr. Justice Major chose not to address the question of whether the case involved a particular social group.Note 118 However, La Forest J. (dissenting) held that "[p]ersons such as the appellant, if persecuted on the basis of having had more than one child, would be able to allege membership in a particular social group".Note 119 Please refer to Chapter 4 for a fuller description of the views of the Supreme Court of Canada regarding particular social group.

Political opinion is another ground which might be invoked with respect to the one-child policy. However, in Chan (F.C.A.), Heald J.A. ruled that the authorities' reaction to the claimant's non-compliance would not be by reason of political opinion;Note 120 and Desjardins J.A. was apparently inclined toward the same conclusion.Note 121

In Cheng, while the claimant pointed to a social group ("those who violated Chinese government family planning policy"), religion also figured in the story. The claimant was a Roman Catholic, and it had been his religious beliefs that had prompted him to oppose the policy.Note 122

9.3.8. Religious or Cultural Mores

Every society has limits on what it regards as acceptable behaviour. In some countries, the norms of the society (or the norms laid down by some ruling group) may be more constraining than elsewhere. The norms may interfere with the exercise of human rights, and may impose limitations on certain categories of people - categories which may be defined by Convention-protected characteristics. These restrictions may be entrenched in law, and may be backed up by coercive action and penalties. A claimant who transgresses the conventions of his or her homeland (and perhaps, at the same time, violates the law) may be at risk of serious harm.

When dealing with the norms of other societies, the Refugee Protection Division should bear in mind that an application of the Convention refugee definition involves measuring the claimant's situation, and any actions visited upon the claimant, against human rights standards which are international (and which may sometimes be interpreted by reference to Canadian law). It is not appropriate simply to to the notions of propriety favoured by the majority or the rulers in the claimant's homeland. In this regard, reference should be made to Chapter 3, Section 3.1.1.1.Note 123

Among the claims which concern societal norms are those of women who face restrictions associated with religion or tradition, and those of Ahmadis from Pakistan.

9.3.8.1. Restrictions upon Women

Regarding the seriousness of harm, the Trial Division has termed female circumcision a "cruel and barbaric practice", a "horrific torture", and an "atrocious mutilation".Note 124

In Namitabar, the Trial Division held that punishment under an Iranian law requiring women to wear the chador may constitute persecution. The Court noted that the penalty would be inflicted without procedural guarantees, and that the penalty was disproportionate to the offence.Note 125 In Fathi-Rad, another case involving the Iranian dress code, the Trial Division found that the treatment accorded the claimant for purely minor infractions of the Islamic dress code in Iran was completely disproportionate to the objective of the law.Note 126 On the other hand, in Hazarat,Note 127 the Trial Division upheld a finding that restrictions imposed on women by laws and practices under the Mujahadeen government in Afghanistan (including restrictions concerning dress, movement outside the home, travel, education and work) amounted to discrimination only, not persecution.

In Vidhani, the claim of an Asian, Moslem woman from Kenya derived from the fact that her father had arranged a marriage for her. She did not wish to marry the man in question, and feared that this man would abuse her if they did marry. She also feared being abused by her father if she refused to marry and being sexually attacked by the police if she complained to them. The Trial Division stated that women who are forced into marriages have had a basic human right violated.Note 128 It also referred to the possibility that persecution might be found in: (i) the claimant's being forced into a marriage; (ii) spousal abuse; (iii) abuse by the father; and (iv) the reaction of the police.Note 129

In Ameri,Note 130 the claimant, a woman who disliked the Iranian dress code, urged that women were victims of the means by which the code was enforced. In response, the Trial Division said:

There was not evidence that her activities and commitments or beliefs would challenge the policies and laws of Iran, if she were to return, in a manner that might result in retributive action by the state that would constitute persecution. Her expressed fear was thus found not to be objectively based. I am not persuaded that the tribunal's conclusion on this aspect of her claim was unreasonable.Note 131

In the same vein, or in a very similar vein, was the Pour case.Note 132 There it was argued that all women residents in a state who disagree with gender-specific discriminatory rules, such as the Iranian dress code for women, suffer from persecution. The Trial Division observed that this proposition went substantially beyond its decisions in NamitabarNote 133 and Fathi-Rad,Note 134 which concerned women who had engaged in a series of acts of defiance and had suffered punishments as a result.

This would appear to mean that a claim will fail if the claimant has not demonstrated, via past conduct, a readiness to assert some right and thereby express dissent (or if the claimant's dissenting conduct has not resulted in mistreatment of the claimant). On the other hand, the Court has also considered it improper to effectively require that the claimant buy peace for herself by refraining from the exercise, or acquiescing in the denial, of one of her basic rights.Note 135

Regarding nexus, the Trial Division has said that a law which specifically targets the manner in which women dress may not properly be characterized as a law of general application which applies to all citizens.Note 136 A woman's breach of a dress code may be perceived as a display of opposition to a theocratic regime.Note 137

Two recent cases have dealt with a woman's breach of a dress code in a democratic, secular state. A Turkish law bans the wearing of headscarves in government places or buildings. In Sicak,Note 138 the Board rejected a claim based on religion and membership in a particular social group, namely, women wearing the headscarf in Turkey. The Board did not believe that the claimant was involved in any protest nor that she was arrested or mistreated by the police, and found a lack of subjective fear and no persecution within the meaning of section 96 of IRPA. Without specifically referring to section 97 of IRPA the Board analyzed (and the Court appears to have agreed with the analysis) the objective basis of the claim. The Board noted that:

  1. 98% of the Turkish population is Muslim;
  2. the principle of secularism as it is applied in Turkey, was established 60 years ago;
  3. the law banning headscarves in public was upheld by the Turkish Constitutional Court and the European Human Rights Commission upheld this ruling;
  4. Turkey is a democracy with free elections;

and concluded that the claimant did not face persecution but prosecution for a violation of a law of general application.

The Court in KayaNote 139 was consistent with Sicak. In referring to the information contained in point (c) above, the Court noted that "[l]aws must be considered in their social context". Mrs. Kaya is entitled to practice her religion in public, and to wear her Hejab (headscarf) in public. Namitabar v. Canada (Minister of Citizenship and Immigration), [1994] 2 F.C. 42 (T.D.) and Fathi-Rad, Farideh v. S.S.C. (F.C.T.D., no. IMM-2438-93), McGillis, April 13, 1994 both deal with Iranian women who were obliged by Iranian Law to wear the Chador. "It would be simple, but wrong, to say that the right of Iranian women not to wear the Chador and the right of Turkish women to wear the Hejab everywhere is a manifestation of the same fundamental right".Note 140

Kaya was cited with approval in Aykut.Note 141 The Court noted, in obiter, that the Turkish law applies to all forms of religious dress or insignia including beards, cloaks, turbans, fez, caps, veils, and headscarves…. "In fact, there is evidence that, insofar as medical or university cards are concerned, the requirement for a photograph showing one's full face is definitely applied to men wearing beards." (para. 41).

In Vidhani, the Trial Division found that the claimant belonged to a particular social group consisting of women forced into arranged marriages without their consent. It also referred to another alleged particular social group: "Asian women in Kenya". The Court observed that Ward's category (1) (groups defined by an innate or unchangeable characteristic) seemed applicable to the claimant's circumstances.Note 142

In Ali, Shaysta-Ameer, the Refugee Division held that an adult claimant belonged to a group consisting of educated women. The Trial Division apparently considered her nine-year-old daughter to be a member of the same - or a similar - group.Note 143

In Annan, a Christian woman was faced with the possibility of being forcibly circumcised by "Moslem fanatics", at the instigation of a Moslem man who wished to marry her. The claimant cited religion as the basis for her difficultiesNote 144 and the Court held that the Refugee Division had erred in rejecting her claim, but the Court did not discuss the nexus issue.

With respect to state protection, in Annan the Court found that the claimant could not count on state protection against forcible circumcision: one must consider not only the state's ability to protect but also its willingness; and while the Ghanaian government had sometimes shown an intention to make female circumcision illegal, it had not yet done this, it was still tolerating the practice, and pious vows were not reassuring. The Court also noted that the claimant would be returning to Ghana alone, as she had been unable to locate her parents.Note 145

For additional guidance regarding claims by women who transgress conventions of their homelands, see Women Refugee Claimants Fearing Gender-Related Persecution.Note 146

9.3.8.2. Ahmadis from Pakistan

In Pakistan, legislation prohibits persons belonging to the Ahmadi religious group from engaging in certain activities (activities connected with the practice of their religion or with their religious identification), and establishes penalties for violations of the prohibitions. One of the statutes concerned is known as Ordinance XX.

The Trial Division has said that mere existence of an oppressive law (Ordinance XX) which is enforced only sporadically does not by itself show that all members of the group targeted by the law (Ahmadis) have good grounds for fearing persecution.Note 147

In Ahmad, Masroor,Note 148 the claimant had wished to argue before the Refugee Division that, given the nature of Ordinance XX, the simple existence of that law meant the claimant was persecuted. The Court acknowledged that it would be proper for the claimant to put forward such an argument (although, based on an evidentiary consideration, the Court also cast some doubt on the argument's ability to succeed).

In Rehan,Note 149 the Refugee Division agreed with the following statement, taken from the judgment of the English Court of Appeal in Ahmad and others v. Secretary of State for the Home DepartmentNote 150:

... It has been accepted by ... the Secretary of State, that the Ordinance, by itself, was well capable of being regarded as discrimination against all members of the Ahmadi sect; but in my judgment the proposition that it was by itself capable of making the appellants liable to persecution simply by virtue of being members of the sect is quite unsustainable. The only members of the sect potentially liable to persecution would be those who proposed to act in contravention of its provisions. Nothing in the Ordinance prevented persons from holding the belief of the sect, without engaging in any of the specified prohibited activities.

...

It was apparent to the Secretary of State ... that most Ahmadis live ordinary lives, untroubled by the Government despite the existence of the Ordinance. In my judgment he would have been fully entitled to assume that if the appellants, on returning to Pakistan, would intend to disobey the Ordinance and such intention constituted the reason, or a predominant reason, for their stated fear, they would have said so ...

It would appear that the Trial Division held that it was reasonably open to the Refugee Division to rely on this analysis, but stopped short of holding that the analysis was correct.Note 151 Furthermore, the Trial Division indicated that if the applicant had stated or demonstrated an intention to violate Ordinance XX, and if his past conduct had been consistent with this intention, he might very well have established a claim.Note 152

In Ahmed,Note 153 the Trial Division observed that "... the Federal Court of Canada has not yet clearly decided whether the discriminatory laws of Pakistan are indeed persecutory in relation to Ahmadis. It has preferred to adopt a case-by-case analysis of refugee claimants' prospective fears of persecution." (Footnote omitted.) In the Trial Division, the Minister conceded that the Refugee Division had erred in finding that the episodes of mistreatment experienced by the claimant did not constitute past persecution; however, the Trial Division upheld the further conclusion that there was no reasonable chance of persecution.

In Mehmood,Note 154 the Trial Division found that the Refugee Division had erred in restricting its analysis to whether or not the claimant was a registered or official member of the Ahmadi religion. On the basis of the evidence before it, the Refugee Division was required to determine whether or not the claimant had a well-founded fear of persecution arising from the perception that he was a member of the Lahori Ahmadi religion.

9.4. INDIRECT PERSECUTION AND FAMILY UNITY

The concept of "indirect persecution" was described by Mr. Justice Jerome in BhattiNote 155 as follows:

The concept of indirect persecution is premised on the assumption that family members are likely to suffer great harm when their close relatives are persecuted. This harm may manifest itself in many ways ranging from the loss of the victim's economic and social support to the psychological trauma associated with witnessing the suffering of loved ones.

The theory is based on a recognition of the broader harm caused by persecutory acts. By recognizing that family members of persecuted persons may themselves be victims of persecution, the theory allows the granting of status to those who might otherwise be unable to individually prove a well-founded fear of persecution.

However, in Pour-Shariati, Mr. Justice Rothstein said that "the Bhatti approach to indirect persecution unjustifiably broadens the Convention refugee basis for admission to Canada, to include persons who do not have a well-founded fear of persecution in their own right."Note 156 Furthermore, in Casetellanos, Mr. Justice Nadon noted that

... there must be a very clear link between a refugee claimant and one of the five prescribed grounds in the Convention refugee definition. However, the principal of indirect persecution does not require the claimant to have a well-founded fear of persecution or to be persecuted; indirect persecution arises out of the fact that the claimant is the unwilling spectator of some incidents of violence targeted against other members of the family or the social group to which he or she belongs, for example.

Furthermore, in Bhatti, ... Jerome A.C.J. held that the scope of the principle was such that it could extend beyond traditional grounds of persecution to support or economic considerations ...

In my opinion, such an extension of the so-called principle of indirect persecution is unacceptable as lack of economic, monetary or emotional support do not constitute a ground for being found a Convention refugee. It would therefore be surprising if the principle of indirect persecution could subsume such a concept. ...Note 157

Nadon J. went on to hold that "indirect persecution does not constitute persecution within the meaning of the definition of Convention refugee."Note 158

The Court of Appeal has now dealt with and dismissed the appeal in Pour-Shariati,Note 159 and in so doing it has squarely rejected the concept of indirect persecution that was articulated in Bhatti:

We accordingly overrule Bhatti's recognition of the concept of indirect persecution as a principle of our refugee law. In the words of Nadon, J. in Casetellanos ..., "since indirect persecution does not constitute persecution within the meaning of Convention refugee, a claim based on it should not be allowed." It seems to us that the concept of indirect persecution goes directly against the decision of this Court in Rizkallah ..., where it was held that there had to be a personal nexus between the claimant and the alleged persecution on one of the Convention refugee grounds. One of these grounds is, of course, a " membership in a particular social group," a ground which allows for family concerns in on [sic] appropriate case.Note 160

Following Pour-Shariati, Muldoon, J. rejected the concept of indirect persecution in CetinkayaNote 161 and held, on the facts in that case, that there had to be a nexus between the claimant and the general situation in his country, Turkey, regarding members of the PKK. He stated as follows:

[25] ... While certain members of the PKK may face persecution, it is for the [claimant] to demonstrate that he falls within that class of individuals who may face persecution. It is not sufficient to adduce evidence that members of the PKK are being persecuted without providing the necessary link between the [claimant's] activities and the persecution feared. Even in the situation of a perceived political opinion, a link must be made between the applicant and the political opinion which may be attributed to him.

A claim based on indirect persecution may be distinguished from one based on the principle of "family unity".Note 162 That principle is discussed in paragraphs 182 to 185 of the UNHCR Handbook. The family-unity claimant does not attempt to satisfy the definition's persecution requirement by pointing to side-effects. Instead, he or she takes the position that if the directly-attacked individual meets all criteria of the Convention refugee definition, a family member may be recognized as a Convention refugee regardless of whether the family member meets the definition's criteria (i.e., has a well-founded fear of persecution). This is a position which has been rejected as being without foundation in Canadian law.Note 163

Family unity is not a concept recognized by Canadian refugee law.Note 164 The family as a "social group" basis for seeking Convention refugee status is based on the evidence of persecution of the family as a social group and not on the principle of family unity. It requires evidence that by reason of membership in a family, individuals may have a well-founded fear of persecution in the future if they are forced to return to their country of origin.Note 165

TABLE OF CASES

  1. Abbes, Lotfi v. M.C.I. (F.C., no. IMM-2989-06), Tremblay-Lamer, February 1, 2007; 2007 FC 112
  2. Abdi, Jama Osman v. M.E.I. (F.C.T.D., no. A-1089-92), Simpson, November 18, 1993
  3. Abdulle, Sadia Mohamed v. M.E.I. (F.C.T.D., no. A-1440-92), Nadon, September 16, 1993
  4. Abdulle, Shamsa v. M.E.I. (F.C.T.D., no. A-1298-92), Nadon, December 3, 1993
  5. Abu El Hof, Nimber v. M.C.I. (F.C., no. IMM-1494-05), von Finckenstein, November 8, 2005; 2005 FC 1515
  6. Acosta Ramirez, Giselle v. M.C.I. (F.C., no. IMM-2151-06), O'Keefe, July 6, 2007; 2007 FC 721
  7. Addo, Samuel v. M.E.I. (F.C.A., no. A-614-89), Mahoney, Hugessen, Gray, May 7, 1992
  8. Addullahi, Isse Samatar v. M.C.I. (F.C.T.D., no. IMM-3170-95), Gibson, November 4, 1996
  9. Aden, Ahmed Abdulkadir v. M.C.I. (F.C.T.D., no. IMM-2912-95), MacKay, August 14, 1996. Reported: Aden v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 40 (F.C.T.D.)
  10. Aden, Khadija Hilowle v. M.C.I. (F.C.A., no. A-602-94), MacGuigan (dissenting), Robertson, McDonald, June 10, 1997
  11. Agranovski, Vladislav v. M.C.I. (F.C.T.D., no. IMM-2709-95), Tremblay-Lamer, July 3, 1996
  12. Ahani, Roozbeh v. M.C.I. (F.C.T.D., no. IMM-4985-93), MacKay, January 4, 1995
  13. Ahmad and others v. Secretary of State for the Home Department [1990] Imm. A.R. 61 (Eng.C.A.)
  14. Ahmad, Masroor v. M.E.I. (F.C.T.D., no. A-555-92), Rothstein, June 16, 1994
  15. Ahmed, Faisa Talarer v. M.E.I. (F.C.T.D., no. A-1017-92), Noël, November 2, 1993
  16. Ahmed, Irfan v. M.C.I. (F.C.T.D., no. IMM-2725-96), Joyal, July 4, 1997
  17. Ahmed, Mohamed Hassan v. M.E.I. (F.C.T.D., no. A-818-92), McKeown, May 20, 1994
  18. Alfred, Rayappu v. M.E.I. (F.C.T.D., no. IMM-1466-93), MacKay, April 7, 1994
  19. Ali, Farhan Omar v. M.C.I. (F.C.T.D., no. A-1652-92), McKeown, June 26, 1995
  20. Ali, Hassan Isse v. M.E.I. (F.C.T.D., no. IMM-39-93), MacKay, June 9, 1994
  21. Ali, Shaysta-Ameer v. M.C.I. (F.C.A., no. A-772-96), Décary, Stone, Strayer, January 12, 1999
  22. Ali, Shaysta-Ameer v. M.C.I. (F.C.T.D., no. IMM-3404-95), McKeown, October 30, 1996. Reported: Ali v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 34 (F.C.T.D.)
  23. Al-Maisri, Mohammed v. M.E.I. (F.C.A., no. A-493-92), Stone, Robertson, McDonald, April 28, 1995
  24. Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996
  25. Ameri, Ghulamali v. M.C.I. (F.C.T.D., no. IMM-3745-94), MacKay, January 30, 1996
  26. Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.)
  27. Antonio, Pacato Joao v. M.E.I. (F.C.T.D., no. IMM-1072-93), Nadon, September 27, 1994
  28. Aoul, Djamila Hadjadj v. M.C.I. (F.C.T.D., no. IMM-2880-99), Blais, April 6, 2000
  29. 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.)
  30. Asadi, Sedigheh v. M.C.I. (F.C.T.D., no. IMM-1921-96), Lutfy, April 18, 1997
  31. Ates, Erkan v. M.C.I. (F.C., no. IMM-150-04), Harrington, September 27, 2004; 2004 FC 1316
  32. Ates, Erkan v. M.C.I. (F.C.A., no. A-592-04), Linden, Nadon, Sharlow, October 5, 2005; 2005 FCA 322
  33. Aykut, Ibrahim v. M.C.I. (F.C., no. IMM-5310-02), Gauthier, March 26, 2004
  34. Azofeifa, Kattia Perez v. M.C.I. (F.C.T.D., no. IMM-1899-94), McKeown, December 21, 1994
  35. Balasingham, Satchithananthan v. S.S.C. (F.C.T.D., no. IMM-2469-94), Rothstein, February 17, 1995
  36. Balasubramaniam, Sriharan v. M.C.I. (F.C.T.D., no. IMM-5414-93), Muldoon, December 13, 1994
  37. Balayah, Khadar Yusuf v. M.C.I. (F.C.T.D., no. A-1395-92), Simpson, April 24, 1996 (reasons signed July 29, 1996)........
  38. Baranchook, Peter v. M.C.I. (F.C.T.D., no. IMM-876-95), Tremblay-Lamer, December 20, 1995
  39. Barima v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 30 (T.D.)
  40. Barisic, Rajko v. M.C.I. (F.C.T.D., no. IMM-7275-93), Noël, January 26, 1995
  41. Bhatti, Naushaba v. S.S.C. (F.C.T.D., no. A-89-93), Jerome, September 14, 1993. Reported: Bhatti v. Canada (Secretary of State). (1994), 25 Imm. L.R. (2d) 275 (F.C.T.D.)
  42. Blagoev, Stoycho Borissov v. M.E.I. (F.C.A., no. A-827-91), Heald, Desjardins, Linden, July 19, 1994
  43. Bragagnini-Ore, Gianina Evelyn v. S.S.C. (F.C.T.D., no. IMM-2243-93), Pinard, February 4, 1994
  44. Brar, Jaskaran Singh v. M.E.I. (F.C.T.D., no. IMM-292-93), Rouleau, September 8, 1993
  45. Busto, Nidia Graciela Saez de v. M.C.I. (F.C.T.D., no. IMM-3704-94), Rothstein, February 16, 1995
  46. Butt, Abdul Majid (Majeed) v. S.G.C. (F.C.T.D., no. IMM-1224-93), Rouleau, September 8, 1993
  47. Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (T.D.)
  48. Castaneda, Robert Martinez v. M.E.I. (F.C.T.D., no. A-805-92), Noël, October 19, 1993
  49. Cetinkaya, Lukman v. M.C.I. (F.C.T.D., no. IMM-2559-97), Muldoon, July 31, 1998
  50. Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675
  51. Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593
  52. Cheng v. M.C.I. (F.C.T.D., no. IMM-6589-00), Pinard, March 1, 2002
  53. Cheng, Kin Ping v. M.C.I. (F.C.T.D., no. IMM-176-97), Tremblay-Lamer, October 8, 1997
  54. Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.)
  55. Chow, Wing Sheung v. M.C.I. (F.C.T.D., no. A-1476-92), McKeown, March 26, 1996
  56. Chowdhury, Hasan Mahmud v. M.C.I. (F.C., no. IMM-7284-05), Mosley, March 4, 2008; 2008 FC 290
  57. Chu, Zheng-Hao v. M.C.I. (F.C.T.D., no. IMM-5159-94), Jerome, January 17, 1996
  58. Ciric v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 65 (T.D.)
  59. Colby, Justin v. M.C.I. (F.C., no. IMM-559-07), Beaudry, June 26, 2008; 2008 FC 805
  60. Daghighi, Malek v. M.C.I. (F.C.T.D., no. A-64-93), Reed, November 16, 1995
  61. Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998
  62. Denis, Juan Carlos Olivera v. S.S.C. (F.C.T.D., no. IMM-4920-93), Nadon, February 18, 1994
  63. Diab, Wadih Boutros v. M.E.I. (F.C.A., no. A-688-91), Isaac, Marceau, McDonald, August 24, 1994
  64. Dombele, Adelina v. M.C.I. (F.C.T.D., no. IMM-988-02), Gauthier, February 26, 2003
  65. Drozdov, Natalia v. M.C.I. (F.C.T.D., no. IMM-94-94), Joyal, January 9, 1995
  66. El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994
  67. Ezeta, Octavio Alberto del Busto v. M.C.I. (F.C.T.D., no. IMM-2021-95), Cullen, February 15, 1996
  68. Farah, Abdul-Qadir v. M.C.I. (F.C.T.D., no. A-428-92), Noël, January 31, 1995
  69. Fathi-Rad, Farideh v. S.S.C. (F.C.T.D., no. IMM-2438-93), McGillis, April 13, 1994
  70. Fi v. Canada (Minister of Citizenship and Immigration), [2007] 3 F.C.R. 400; 2006 FC 1125
  71. Fofanah, Isha v. M.C.I. (F.C.T.D., no. IMM-4795-97), Muldoon, July 16, 1998
  72. Frid, Mickael v. M.C.I. (F.C.T.D., no. IMM-6694-93), Rothstein, December 15, 1994
  73. Garcia, Marvin Balmory Salvador v. S.S.C. (F.C.T.D., no. IMM-2521-93), Pinard, February 4, 1994
  74. Gebre-Hiwet, Tewodros v. M.C.I. (F.C., no. IMM-3844-09), Phelan, April 30, 2010; 2010 FC 482
  75. Glass, James Corey v. M.C.I. (F.C., no. IMM-2552-08), Frenette, July 17, 2008; 2008 FC 881
  76. Gribovskaia, Elena v. M.C.I. (F.C., no. IMM-5848-04), Rouleau, July 11, 2005; 2005 FC 956
  77. Gutierrez, Blanca v. M.C.I. (F.C.T.D., no. IMM-1118-99), Lemieux, May 12, 2000
  78. Gwanzura, Unity v. M.C.I. (F.C.T.D., no. IMM-1907-96), Heald, July 10, 1997
  79. Haoua, Mehdi v. M.C.I. (F.C.T.D., no. IMM-698-99), Nadon, February 21, 2000
  80. Hashi, Haweya Abdinur v. M.C.I. (F.C.T.D., no. IMM-2597-96), Muldoon, July 31, 1997
  81. Hashmat, Suhil v. M.C.I. (F.C.T.D., no. IMM-2331-96), Teitelbaum, May 9, 1997
  82. Hassan, Jamila Mahdi v. M.E.I. (F.C.A., no. A-757-91), Isaac, Marceau, McDonald, August 25, 1994. Reported: Hassan v. Canada (Minister of Employment and Immigration) (1994), 174 N.R. 74 (F.C.A.)
  83. Hazarat, Ghulam v. S.S.C. (F.C.T.D., no. IMM-5496-93), MacKay, November 25, 1994
  84. Hersi, Nur Dirie v. M.E.I. (F.C.A., no. A-1231-91), MacGuigan, Linden, McDonald, November 4, 1993
  85. Hersi, Udbi (Ubdi) Hashi v. M.E.I. (F.C.T.D., no. 92-A-6574), Joyal, May 5, 1993
  86. Hinzman v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 561; 2006 FC 420
  87. Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171
  88. Hinzman, Jeremy, RPD TA4-01429, B. Goodman, March 16, 2005
  89. Hophany, Parwiz v. M.E.I. (F.C.T.D., no. A-802-92), Jerome, July 19, 1994
  90. Hotaki, Khalilullah v. M.E.I. (F.C.T.D., no. IMM-6659-93), Gibson, November 22, 1994
  91. Hughey, Brandon David v. M.C.I. (F.C., no. IMM-5571-05), Mactavish, March 31, 2006; 2006 FC 421
  92. Hughey, Brandon David, RPD TA4-05781, B. Goodman, August 16, 2005
  93. Ielovski, Vladimir v. M.C.I. (F.C., no. IMM-3520-07), de Montigny, June 13, 2008; 2008 FC 739
  94. Ilbeigi-Asli: S.S.C. v. Ilbeigi-Asli, Mehrbanou (F.C.T.D., no. IMM-2766-94), McKeown, March 17, 1995
  95. Iramachanthiran, Irathinam v. M.C.I. (F.C.T.D., no. IMM-2789-95), Simpson, April 24, 1996 (reasons signed July 29, 1996)
  96. Isa, Sharmarka Ahmed v. S.S.C. (F.C.T.D., no. IMM-1760-94), Reed, February 16, 1995
  97. Janjicek, Davorin v. M.C.I. (F.C.T.D., no. IMM-2242-94), Richard, March 28, 1995
  98. Jeyarajah, Vijayamalini v. M.C.I. (F.C.T.D., no. IMM-2473-98), Denault, March 17, 1999
  99. John, Lindyann v. M.C.I. (F.C.T.D., no. IMM-2833-95), Simpson, April 24, 1996 (reasons signed July 29, 1996)
  100. Joseph, Christy Shanthakumar v. S.S.C. (F.C.T.D., no. IMM-7503-93), MacKay, November 18, 1994
  101. Kaler, Minder Singh v. M.E.I. (F.C.T.D., no. IMM-794-93), Cullen, February 3, 1994
  102. Kanagalingam, Uthayakumari v. M.C.I. (F.C.T.D., no. IMM-566-98), Blais, February 10, 1999
  103. Kanapathypillai, Indrarajan v. M.C.I. (F.C.T.D., no. IMM-3724-96), Heald, July 11, 1997
  104. Kandiah, Palachandran v. M.C.I. (F.C.T.D., no. IMM-7125-93), Cullen, December 7, 1994
  105. Kaprolova, Elena v. M.C.I. (F.C.T.D., no. IMM-388-97), Teitelbaum, September 25, 1997
  106. Karaguduk, Abdulgafur v. M.C.I. (F.C., no. IMM-2695-03), Henegan, July 5, 2004
  107. Kaya, Bedirhan Mustafa v. M.C.I. (F.C., no. IMM-5565-03), Harrington, January 14, 2004
  108. Kazkan, Shahrokh Saeedi v. M.C.I. (F.C.T.D., no. IMM-1313-96), Rothstein, March 20, 1997
  109. Key, Joshua Adam v. M.C.I. (F.C., no. IMM-5923-06), Barnes, July 4, 2008; 2008 FC 838
  110. Khalib, Amina Ahmed v. M.E.I. (F.C.T.D., no. A-656-92), MacKay, March 30, 1994. Reported: Khalib v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 149 (F.C.T.D.)
  111. Khan: M.C.I. v. Khan, Azmat Ali (F.C., no. IMM-7232-04), Gauthier, March 22, 2005; 2005 FC 398
  112. Kicheva, Zorka v. M.E.I. (F.C.T.D., no. A-625-92), Denault, December 23, 1993
  113. Kogan, Meri v. M.C.I. (F.C.T.D., no. IMM-7282-93), Noël, June 5, 1995
  114. Kularatnam, Suhitha v. M.C.I. (F.C., no. IMM-3530-03), Phelan, August 12, 2004; 2004
  115. Kwong, Kam Wang (Kwong, Kum Wun) v. M.C.I. (F.C.T.D., no. IMM-3464-94), Cullen, May 1, 1995
  116. Lai, Quang v. M.E.I. (F.C.T.D., no. IMM-307-93), McKeown, May 20, 1994
  117. Landry, Dale Gene v. M.C.I. (F.C., no. IMM-5148-08), Harrington, June 8, 2009; 2009 FC 594
  118. Lau, Yei Wah v. M.C.I. (F.C., no. IMM-2329-07), Phelan, April 17, 2008; 2008 FC 499
  119. Lebedev, Vadim v. M.C.I. (F.C., no. IMM-2208-06), de Montigny, July 9, 2007; 2007 FC 728
  120. Liang, Zhai Kui v. M.E.I. (F.C.T.D., no. IMM-2487-93), Denault, November 2, 1993
  121. Lin, Qu Liang v. M.E.I. (F.C.A., no. 93-A-142), Rouleau, July 20, 1993. Reported: Lin v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 208 (F.C.T.D.)
  122. Liu, Ying Yang v. M.C.I. (F.C.T.D., no. IMM-4316-94), Reed, May 16, 1995
  123. Losolohoh, James Salah v. M.E.I. (F.C.T.D., no. IMM-2324-94), Wetston, December 13, 1994
  124. Lowell, Matthew David v. M.C.I. (F.C., no. IMM-4599-08), Zinn, June 22, 2009; 2009 FC 649
  125. M.S. v. M.C.I. (F.C.T.D., no. A-132-91), McKeown, August 27, 1996
  126. Mahalingam, Paramalingam v. S.G.C. (F.C.T.D., no. A-79-93), Joyal, November 2, 1993
  127. Manihani, Saravjit Singh v. M.E.I. (F.C.T.D., no. A-753-92), Noël, September 3, 1993
  128. Martinez, Oscar v. M.C.I. (F.C.T.D., no. IMM-462-96), Gibson, June 6, 1996
  129. Masoudifar, Kambiz v. M.E.I. (F.C.T.D., no. IMM-3677-93), Wetston, May 25, 1994
  130. Megag, Sahra Abdilahi v. M.E.I. (F.C.T.D., no. A-822-92), Rothstein, December 10, 1993
  131. Mehmood, Nasir v. M.C.I. (F.C.T.D., no. IMM-2256-97), McGillis, May 14, 1998
  132. Mohamed, Abd Almoula Mohamed v. M.E.I. (F.C.A., no. A-26-92), Strayer, MacGuigan, Robertson, November 7, 1994
  133. Mohamed, Abdirizak Hassan v. M.E.I. (F.C.A., no. A-180-91), Isaac, Linden, McDonald, April 28, 1994
  134. Mohamed, Mohamed Ismail v. M.C.I. (F.C.T.D., no. IMM-5689-93), MacKay, September 8, 1994
  135. Mohilov, David v. M.C.I. (F.C., no. IMM-1044-08), Beaudry, November 21, 2008; 2008 FC 1292
  136. Mokabila, Guy Lessendjina v. M.C.I. (F.C.T.D., no. IMM-2660-98), Denault, June 2, 1999
  137. Moskvitchev, Vitalli v. M.C.I. (F.C.T.D., no. IMM-70-95), Dubé, December 21, 1995
  138. Moslim, Mahdi Fraih v. S.S.C. (F.C.T.D., no. 93-A-166), McGillis, February 14, 1994
  139. 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.)
  140. Murugamoorthy, Rajarani v. M.C.I. (F.C., no. IMM-4706-02), O'Reilly, September 29, 2003
  141. Murugiah, Rahjendran v. M.E.I. (F.C.T.D., no. 92-A-6788), Noël, May 18, 1993
  142. Musial v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 290 (C.A.)
  143. Naguleswaran, Pathmasilosini (Naguleswaran) v. M.C.I. (F.C.T.D., no. IMM-1116-94), Muldoon, April 19, 1995
  144. Namitabar v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 42 (F.C.T.D.)
  145. Namitabar: Canada (Secretary of State) v. Namitabar (F.C.A., no. A-709-93), Décary, Hugessen, Desjardins, October 28, 1996
  146. Nejad, Saeed Javidani-Tabriz v. M.C.I. (F.C.T.D., no. IMM-4624-93), Richard, November 16, 1994
  147. Nina, Razvan v. M.C.I. (F.C.T.D., no. A-725-92), Cullen, November 24, 1994
  148. Nithiyanathan, Anusha v. M.C.I. (F.C.T.D., no. IMM-3402-96), Muldoon, July 30, 1997
  149. Olearczyk, Helena v. M.E.I. (F.C.A., no. A-335-88), Hugessen, MacGuigan, Pratte (dissenting), April 20, 1989. Reported: Olearczyk v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 18 (F.C.A.)
  150. Omar, Suleiman Ahmed v. M.C.I. (F.C.T.D., no. A-1615-92), McKeown, February 7, 1996
  151. Osman, Ashu Farah v. M.C.I. (F.C.T.D., no. IMM-1295-94), Cullen, January 26, 1995
  152. Osoble, Elmi Gure v. M.E.I. (F.C.T.D., no. A-775-92), McKeown, October 29, 1993
  153. Padilla, Higinio Avalo v. M.E.I. (F.C.A., no. A-398-89) Mahoney, MacGuigan, Linden, January 31, 1991. Reported: Padilla v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 1 (F.C.A.)
  154. Papou, Bhatia v. M.E.I. (F.C.T.D., no. A-1040-92), Rouleau, August 15, 1994
  155. Perez, Sofia Sofi v. M.C.I. (F.C., no. IMM-6504-09), Snider, August 23, 2010; 2010 FC 833
  156. Pernas Hernandez, Euler v. M.C.I. (F.C., no. IMM-2072-08), Phelan, March 4, 2009; 2009 FC 229
  157. Popov, Leonid Anatolievich v. M.E.I. (F.C.T.D., no. IMM-2567-93), Reed, April 11, 1994; Reported: Popov v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 242 (F.C.T.D.)
  158. Pour, Malek Mohammad Nagmeh Abbas v. M.C.I. (F.C.T.D., no. IMM-3650-95), Gibson, June 6, 1996
  159. Pour-Shariati v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 767 (T.D.)
  160. Pour-Shariati, Dolat v. M.E.I. (F.C.A., no. A-721-94), MacGuigan, Robertson, McDonald, June 10, 1997. Reported: Pour-Shariati v. Canada (Minister of Employment and Immigration) (1997), 39 Imm. L.R. (2d) 103 (F.C.A.)
  161. Puvanendiran, Premalatha v. M.C.I. (F.C.T.D., no. IMM-3595-96), Heald, July 8, 1997
  162. Rabbani, Farideh v. M.C.I. (F.C.T.D., no. IMM-2032-96), McGillis, June 3, 1997
  163. Rafieyan, Majid v. M.C.I. (F.C., no. IMM-4221-06), Tremblay-Lamer, July 6, 2007; 2007 FC 727
  164. Rafizade, Rahi v. M.C.I. (F.C.T.D., no. IMM-2570-94), Cullen, March 7, 1995. Reported: Rafizade v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm. L.R. (2d) 261 (F.C.T.D.)
  165. Rajaratnam, Logeswaran v. M.E.I. (F.C.T.D., no. A-678-92), Nadon, June 29, 1994
  166. Rajasegaram, Arulmalar v. M.C.I. (F.C.T.D., no. IMM-2440-99), Reed, June 19, 2000
  167. Rehan, Muhammad Arif v. M.C.I. (F.C.T.D., no. A-580-92), Gibson, October 18, 1996
  168. Ripalda, Alma v. M.C.I. (F.C.T.D., no. IMM-455-98), McDonald, July 15, 1998
  169. Rizkallah, Bader Fouad v. M.E.I. (F.C.A., no. A-606-90), Marceau, MacGuigan, Desjardins, May 6, 1992. Reported: Rizkallah v. Canada (Minister of Employment and Immigration) (1992), 156 N.R. 1 (F.C.A.)
  170. Rodriguez-Hernandez, Severino Carlos v. S.S.C. (F.C.T.D., no. A-19-93), Wetston, January 10, 1994
  171. Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.)
  172. Sanno, Aminata v. M.C.I. (F.C.T.D., no. IMM-2124-95), Tremblay-Lamer, April 25, 1996
  173. Satiacum: M.E.I. v. Satiacum, Robert (F.C.A., no. A-554-87), Urie, Mahoney, MacGuigan, June 16, 1989. Reported: Satiacum: Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.)
  174. Serrano, Roberto Flores v. M.C.I. (F.C.T.D., no. IMM-2787-98), Sharlow, April 27, 1999
  175. Shaikh, Sarwar v. M.C.I. (F.C.T.D., no. IMM-2489-98), Tremblay-Lamer, March 5, 1999
  176. Shakarabi, Seyed Hassan v. M.C.I. (F.C.T.D., no. IMM-2440-95), Reed, March 21, 1996
  177. Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003
  178. Shereen, Agha Agha v. M.E.I. (F.C.A., no. A-913-90), Mahoney, MacGuigan, Linden, March 21, 1994
  179. Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51 (T.D.)
  180. Siad, Dahabo Jama v. M.E.I. (F.C.T.D., no. 92-A-6820), Rothstein, April 13, 1993. Reported: Siad v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 6 (F.C.T.D.)
  181. Sicak, Bucak v. M.C.I. (F.C., no. IMM-4699-02), Gauthier, December 11, 2003
  182. Singh, Tejinder Pal v. M.C.I. (F.C.T.D., no. IMM-5294-97), Muldoon, December 23, 1997
  183. Sladoljev, Dejan v. M.E.I. (F.C.T.D., no. IMM-3160-94), Cullen, July 4, 1995
  184. Smith, Bethany Lanae v. M.C.I. (F.C., no. IMM-677-09), de Montigny, November 20, 2009; 2009 FC 1194
  185. Soma, Ester Elvira v. M.C.I. (F.C.T.D., no. A-1129-92), Richard, November 15, 1994
  186. Sounitsky, Alexander v. M.C.I. (F.C., no. IMM-2184-07), Mosley, March 14, 2008; 2008 FC 345
  187. Sran, Gurjeet Singh v. M.C.I. (F.C.T.D., no. IMM-3195-96), McKeown, July 29, 1997
  188. Subramaniam, Suresh v. M.C.I. (F.C., no. IMM-5129-04), O'Reilly, May 12, 2005; 2005 FC 684
  189. Suleman, Adams v. M.E.I. (F.C.A., no. A-1297-91), Desjardins, Décary, Létourneau, May 5, 1994
  190. Sulemana, Halilu v. M.C.I. (F.C.T.D., no. IMM-3355-94), Muldoon, March 17, 1995
  191. Talman, Natalia v. S.G.C. (F.C.T.D., no. IMM-5874-93), Joyal, January 11, 1995
  192. Tewelde, Baruch v. M.C.I. (F.C., no. IMM-81-06), Gauthier, October 24, 2007; 2007 FC 1103
  193. Thathaal, Sabir Hussain v. S.S.C. (F.C.T.D., no. A-1644-92), McKeown, December 15, 1993
  194. Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.)
  195. Tkachenko, Alexander v. M.C.I. (F.C.T.D., no. IMM-802-94), McKeown, March 27, 1995
  196. Tocjeva, Tatiana v. M.C.I. (F.C.T.D., no. IMM-4808-96), Cullen, September 11, 1997
  197. Toledo, Ruben Fernando San Martin v. M.E.I. (F.C.A., no. A-205-91), Hugessen, Desjardins, Décary, March 1, 1993
  198. Tomov, Nikolay Harabam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005; 2005 FC 1527
  199. Torres, Alejandro Rodriguez v. M.C.I. (F.C.T.D., no. IMM-503-94), Simpson, February 1, 1995
  200. Treskiba, Anatoli Benilov v. M.C.I. (F.C., no. IMM-1999-08), Pinard, January 13, 2009; 2009 FC 15
  201. Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.)
  202. Velickovic, Slobodan v. M.C.I. (F.C.T.D., no. IMM-4394-94), Richard, May 11, 1995
  203. Velluppillai, Selvaratnam v. M.C.I. (F.C.T.D., no. IMM-2043-99), Gibson, March 9, 2000
  204. Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60, (T.D.)
  205. Volkovitsky, Olga v. M.C.I. (F.C., no. IMM-567-09), Shore, September 10, 2009; 2009 FC 893
  206. Vyramuthu, Sanmugarajah v. S.G.C. (F.C.T.D., no. IMM-6277-93), Rouleau, January 26, 1995
  207. Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689
  208. Wickramasinghe v. M.C.I. (F.C.T.D., no. IMM-2489-01), Martineau, April 26, 2002
  209. Yassodaran, Magalingam v. M.C.I. (F.C.T.D., no. IMM-1677-95), Reed, April 4, 1996
  210. Zheng v. M.C.I. (F.C.T.D., no. IMM-2415-01), Martineau, April 19, 2002
  211. Zhu, Yong Liang v. M.E.I. (F.C.A., no. A-1017-91), MacGuigan, Linden, Robertson, January 28, 1994
  212. Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.)

Notes

Note 1

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

Return to note 1 referrer

Note 2

Salibian, ibid., at 258, per Décary J.A.

Return to note 2 referrer

Note 3

See also Olearczyk, Helena v. M.E.I. (F.C.A., no. A-335-88), Hugessen, MacGuigan, Pratte (dissenting), April 20, 1989. Reported: Olearczyk v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 18 (F.C.A.). In Mokabila, Guy Lessendjina v. M.C.I. (F.C.T.D., no. IMM-2660-98), Denault, June 2, 1999, the panel required the claimant to show that he himself would be persecuted in future. The application for judicial review was allowed.

Return to note 3 referrer

Note 4

Salibian, supra, footnote 1, at 259, per Décary, J.A.; Hathaway, James C., The Law of Refugee Status, (Toronto: Butterworths, 1991), page 97.

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Note 5

Rizkallah, Bader Fouad v. M.E.I. (F.C.A., no. A-606-90), Marceau, MacGuigan, Desjardins, May 6, 1992. Reported: Rizkallah v. Canada (Minister of Employment and Immigration) (1992), 156 N.R. 1 (F.C.A.).

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Note 6

Rizkallah, ibid., at 1-2, per MacGuigan J.A.

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Note 7

Abdulle, Sadia Mohamed v. M.E.I. (F.C.T.D., no. A-1440-92), Nadon, September 16, 1993, at 4. See also: Mohamed, Abdirizak Hassan v. M.E.I. (F.C.A., no. A-180-91), Isaac, Linden, McDonald, April 28, 1994; Hassan, Jamila Mahdi v. M.E.I. (F.C.A., no. A-757-91), Isaac, Marceau, McDonald, August 25, 1994, at 4. Reported: Hassan v. Canada (Minister of Employment and Immigration) (1994), 174 N.R. 74 (F.C.A.); and Farah, Abdul-Qadir v. M.C.I. (F.C.T.D., no. A-428-92), Noël, January 31, 1995, at 4. A claimant's status as a Tamil male from the north of Sri Lanka is simply not enough, on its own, to establish a well-founded fear of persecution: Subramaniam, Suresh v. M.C.I. (F.C., no. IMM-5129-04), O'Reilly, May 12, 2005; 2005 FC 684 at paragraph 7.

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Note 8

Reference should be made to the Guidelines on Civilian Non-Combatants Fearing Persecution in Civil War Situations, issued by the IRB Chairperson pursuant to section 65(3) of the Immigration Act, on March 7, 1996, as continued in effect by the Chairperson on June 28, 2002 under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. Note that the comparative approach is not recommended in the Chairperson's Guidelines.

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Note 9

Perhaps the most clear-cut adopting of a comparative approach is found in Isa, Sharmarka Ahmed v. S.S.C. (F.C.T.D., no. IMM-1760-94), Reed, February 16, 1995, at 4-5.

Many if not most civil war situations are racially or ethnically based. If racially motivated attacks in civil war circumstances constitute a ground for convention refugee status, then, all individuals on either side of the conflict will qualify. The passages quoted by the Board from [paragraph 164 of] the United Nations Handbook … indicates that this is not the purpose of the 1951 Convention.

The Isa decision was cited approvingly in Ali, Farhan Omar v. M.C.I. (F.C.T.D., no. A-1652-92), McKeown, June 26, 1995. Mr. Justice McKeown did not refer to any particular passage in Isa. See also: Siad, Dahabo Jama v. M.E.I. (F.C.T.D., no. 92-A-6820), Rothstein, April 13, 1993. Reported: Siad v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 6 (F.C.T.D.); Barisic, Rajko v. M.C.I. (F.C.T.D., no. IMM-7275-93), Noël, January 26, 1995.

In Ali, Shaysta-Ameer v. M.C.I. (F.C.T.D., no. IMM-3404-95), McKeown, October 30, 1996. Reported: Ali v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 34 (F.C.T.D.), the Trial Division certified the following question: "Are refugee claimants excluded from the definition of Convention refugee if all groups in their country, including the group of which they are members, are both victims and perpetrators of human rights violations in the context of civil war?" See, infra, footnote 20.

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Note 10

Requiring a worse predicament might mean any one of several things. To succeed, a claimant might have to establish: (i) that the claimant's level of risk is greater than the risk level of persons in other groups, or (ii) that the claimant's risk level is greater than the risk level of other persons in the claimant's own group; or (iii) that the claimant is at risk of suffering harm greater than that which threatens others.

Regarding (i), see: Siad, supra, footnote 9, at 9 and 10-11; Omar, Suleiman Ahmed v. M.C.I. (F.C.T.D., no. A-1615-92), McKeown, February 7, 1996, at 2; but see Janjicek, Davorin v. M.C.I. (F.C.T.D., no. IMM-2242-94), Richard, March 28, 1995, where the parties consented to an order which "remitted [the matter] for a new hearing on the basis that a Convention refugee claimant need not establish that her or his ethnic group is at greater risk than members of other ethnic groups, in accordance with ... Salibian v. M.E.I."

Regarding (ii), see Hersi, Nur Dirie v. M.E.I. (F.C.A., no. A-1231-91), MacGuigan, Linden, McDonald, November 4, 1993, at 1: the parties consented to the conclusion that the Refugee Division had adopted a principle at odds with Salibian, supra, footnote 1, when it imposed this requirement. See also: Ahmed, Faisa Talarer v. M.E.I. (F.C.T.D., no. A-1017-92), Noël, November 2, 1993, at 3; Abdi, Jama Osman v. M.E.I. (F.C.T.D., no. A-1089-92), Simpson, November 18, 1993, at 3-4; Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51 (T.D.), at 64; Ali, Hassan Isse v. M.E.I. (F.C.T.D., no. IMM-39-93), MacKay, June 9, 1994, at 7; Hassan, supra, footnote 7, at 3-4.

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Note 11

The claimant's group must be one which is definable in terms of a Convention characteristic.

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Note 12

For example: Shereen, Agha Agha v. M.E.I. (F.C.A., no. A-913-90), Mahoney, MacGuigan, Linden, March 21, 1994; Mohamed, Abdirizak Hassan, supra, footnote 7; Hersi, Udbi (Ubdi) Hashi v. M.E.I. (F.C.T.D., no. 92-A-6574), Joyal, May 5, 1993, at 4; Osoble, Elmi Gure v. M.E.I. (F.C.T.D., no. A-775-92), McKeown, October 29, 1993; Abdulle, Shamsa v. M.E.I. (F.C.T.D., no. A-1298-92), Nadon, December 3, 1993; and Balayah, Khadar Yusuf v. M.C.I. (F.C.T.D., no. A-1395-92), Simpson, April 24, 1996 (reasons signed July 29, 1996), at 8-10.

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Note 13

For example: Ali, Hassan Isse, supra, footnote 10, at 7-8; and Hotaki, Khalilullah v. M.E.I. (F.C.T.D., no. IMM-6659-93), Gibson, November 22, 1994, at 4.

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Note 14

For example: Ahmed, Mohamed Hassan v. M.E.I. (F.C.T.D., no. A-818-92), McKeown, May 20, 1994; and Mohamed, Mohamed Ismail v. M.C.I. (F.C.T.D., no. IMM-5689-93), MacKay, September 8, 1994. See also Aden, Khadija Hilowle v. M.C.I. (F.C.A., no. A-602-94), MacGuigan (dissenting), Robertson, McDonald, June 10, 1997, affirming (F.C.T.D., no. A-1018-92), Noël, October 27, 1994.

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Note 15

Recommended in the Chairperson's Guidelines, supra, footnote 8, at 7.

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Note 16

Salibian, supra, footnote 1, points out that there may be a nexus in a civil war context. Rizkallah, supra, footnote 5, may be seen as adding to Salibian little more than a reminder that nexus may also be absent in such a situation. Simple political instability does not make for a well-founded fear of persecution: Megag, Sahra Abdilahi v. M.E.I. (F.C.T.D., no. A-822-92), Rothstein, December 10, 1993, at 2. See also Ezeta, Octavio Alberto del Busto v. M.C.I. (F.C.T.D., no. IMM-2021-95), Cullen, February 15, 1996, at 3-4, where the claimant's difficulties were a result of the unsettled and dangerous political climate in Peru, rather than being linked to a Convention ground.

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Note 17

In Khalib, Amina Ahmed v. M.E.I. (F.C.T.D., no. A-656-92), MacKay, March 30, 1994. Reported: Khalib v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 149 (F.C.T.D.), the claimants' home area, in which the claimants' Issaq clan predominated, had been sown with mines by the former Somali government, allegedly with the intention of harming Issaqs. Many mines remained, and the claimants feared injury. The Refugee Division held that the danger was one faced indiscriminately by all people in the area; and in upholding the decision, the Court noted that while Issaqs may have been the majority, the danger was nevertheless faced by all.

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Note 18

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 747, per La Forest J., "The examination of the circumstances should be approached from the perspective of the persecutor, since that is determinative in inciting the persecution."

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Note 19

The Board cannot hide behind the civil war situation and automatically find that claimants from Somalia are not refugees." Osman, Ashu Farah v. M.C.I. (F.C.T.D., no. IMM-1295-94), Cullen, January 26, 1995, at 5.

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Note 20

Ali, Shaysta-Ameer v. M.C.I. (F.C.A., no. A-772-96), Décary, Stone, Strayer, January 12, 1999.

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Note 21

Supra, footnote 8.

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Note 22

Fi v. Canada (Minister of Citizenship and Immigration), [2007] 3 F.C.R. 400; 2006 FC 1125 at paragraph 19.

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Note 23

Fathi-Rad, Farideh v. S.S.C. (F.C.T.D., no. IMM-2438-93), McGillis, April 13, 1994, at 4. See also Namitabar v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 42 (F.C.T.D.), at 46. Compare Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D.), no. IMM-2365-95), Simpson, July 25, 1996. In Canada (Secretary of State) v. Namitabar (F.C.A., no. A-709-93), Décary, Hugessen, Desjardins, October 28, 1996, the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so..."

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Note 24

Musial v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 290 (C.A.). Speaking for the majority at 294, Pratte J. said:

A person who is punished for having violated an ordinary law of general application, is punished for the offence he has committed, not for the political opinions that may have induced him to commit it. … [A] person who has violated the laws of his country of origin by evading ordinary military service, and who merely fears prosecution and punishment for that offence in accordance with those laws, cannot be said to fear persecution for his political opinions even if he was prompted to commit that offence by his political beliefs.

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Note 25

Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.).

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Note 26

Zolfagharkhani, ibid., at 549. See also Fathi-Rad, supra, footnote 23, at 4.

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Note 27

Zolfagharkhani, supra, footnote 25, at 549. Castaneda, Robert Martinez v. M.E.I. (F.C.T.D., no. A-805-92), Noël, October 19, 1993, at 3 (exit laws).

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Note 28

Zolfagharkhani, supra, footnote 25, at 552. These propositions have been cited with regularity in subsequent decisions dealing with conscientious objection to military service. See section 9.3.6., infra.

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Note 29

In Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), at 319, Linden J.A. said that the Refugee Division "wrongly required that a 'persecutory intent' be present, whereas a 'persecutory effect' suffices."

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Note 30

Compare Suleman, Adams v. M.E.I. (F.C.A., no. A-1297-91), Desjardins, Décary, Létourneau, May 5, 1994, where the Court, without referring to any authority, stated, at 2:

We are not certain that ... the Refugee Division analysed the claimant's acts in the context in which he committed them, and that it considered the question of whether his acts, although illegal, did not have a political connotation or were not committed for political reasons or in a political context that could then found a reasonable fear of persecution based on political opinion, whether real or imputed by the agent of persecution.

Thus, it may be necessary to analyze the actions of the claimant and the state in context. See also Masoudifar, Kambiz v. M.E.I. (F.C.T.D., no. IMM-3677-93), Wetston, May 25, 1994, at 2-3. Compare Antonio, Pacato Joao v. M.E.I. (F.C.T.D., no. IMM-1072-93), Nadon, September 27, 1994, at 6-8 (re: treason, espionage and sabotage).

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Note 31

 See Zhu, Yong Liang v. M.E.I. (F.C.A., no. A-1017-91), MacGuigan, Linden, Robertson, January 28, 1994, at 2-3. In Daghighi, Malek v. M.C.I. (F.C.T.D., no. A-64-93), Reed, November 16, 1995, the Refugee Division had held that the Iranian claimant had simply run afoul of "laws or a policy of general application founded on fundamentalist principles of Islamic law". But evidence indicated that the claimant had incurred the authorities' displeasure for Western tendencies and unacceptable religious views, and that he had been obliged to undergo religious instruction. The Court rejected the conclusion that his difficulties were not related to a Convention ground.

In Chan (F.C.A.), Mr. Justice Heald ruled that punishment for breach of a government policy is not punishment for political opinion if the breach will be perceived by the authorities not as a challenge to their authority but only as a breach of a law: Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675, at 695; (1993), 20 Imm. L.R. (2d) 181 (C.A.). See also: Barima v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 30 (T.D.), at 37; Liang, Zhai Kui v. M.E.I. (F.C.T.D., no. IMM-2487-93), Denault, November 2, 1993, at 3.

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Note 32

Compare Drozdov, Natalia v. M.C.I. (F.C.T.D., no. IMM-94-94), Joyal, January 9, 1995, at 5.

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Note 33

Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, per La Forest J. (dissenting) at 632.

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Note 34

Cheung, supra, footnote 29, at 323, per Linden J.A. See also Fathi-Rad, supra, footnote 23, at 4-5. Compare Chan (F.C.A.), supra, footnote 31, at 724, per Desjardins J.A.

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Note 35

Chan (S.C.C.), supra, footnote 33, per La Forest J. (dissenting) at 634.

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Note 36

Chan (S.C.C.), ibid., per La Forest J. (dissenting) at 631.

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Note 37

Namitabar (F.C.T.D.), supra, footnote 23; Rodriguez-Hernandez, Severino Carlos v. S.S.C. (F.C.T.D., no. A-19-93), Wetston, January 10, 1994, at 4; Denis, Juan Carlos Olivera v. S.S.C. (F.C.T.D., no. IMM-4920-93), Nadon, February 18, 1994, at 4, Fathi-Rad, supra, footnote 23, at 4-5. In Namitabar (F.C.A.), supra, footnote 23, the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so…" See also Rabbani, Farideh v. M.C.I. (F.C.T.D., no. IMM-2032-96), McGillis, June 3, 1997.

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Note 38

Antonio, supra, footnote 30, at 11-12. See also, Chu, Zheng-Hao v. M.C.I. (F.C.T.D., no. IMM-5159-94), Jerome, January 17, 1996, at 5. See also Singh, Tejinder Pal v. M.C.I. (F.C.T.D., no. IMM-5294-97), Muldoon, December 23, 1997 (supplementary reasons), at paragraphs 9-13.

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Note 39

Cheung, supra, footnote 29, at 322. See also: Lin, Qu Liang v. M.E.I. (F.C.A., no. 93-A-142), Rouleau, July 20, 1993. Reported: Lin v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 208 (F.C.T.D.); and Chan (S.C.C.), supra, footnote 33, per Major J. at 658. Also regarding extra-judicial punishment, see Tocjeva, Tatiana v. M.C.I. (F.C.T.D., no. IMM-4808-96), Cullen, September 11, 1997, at 5.

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Note 40

Regarding extra-judicial punishment, see: Padilla, Higinio Avalo v. M.E.I. (F.C.A., no. A-398-89) Mahoney, MacGuigan, Linden, January 31, 1991. Reported: Padilla v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 1 (F.C.A.), at 4; Cheung, supra, footnote 29, at 323; Addo, Samuel v. M.E.I. (F.C.A., no. A-614-89), Mahoney, Hugessen, Gray, May 7, 1992; and Moslim, Mahdi Fraih v. S.S.C. (F.C.T.D., no. 93-A-166), McGillis, February 14, 1994, at 2. Regarding lack of due process, see: Namitabar, supra, footnote 23, at 47.

An enactment may itself allow for denial of due process, thereby increasing the chances that persecution will occur; see, for example, Balasingham, Satchithananthan v. S.S.C. (F.C.T.D., no. IMM-2469-94), Rothstein, February 17, 1995, at 2-3.

In M.E.I. v. Satiacum, Robert (F.C.A., no. A-554-87), Urie, Mahoney, MacGuigan, June 16, 1989. Reported: Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.), the Court held that the claimant's fear of extra-judicial punishment, which was based partly on alleged irregularities in prosecution, was not well founded. Furthermore, the Court stated, at 9, that "... Canadian tribunals have to assume a fair and independent judicial process in the foreign country. In the case of a non-democratic State contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching ... [some key element of the judicial system]." See also page 11. In Chowdhury, Hasan Mahmud v. M.C.I. (F.C., no. IMM-7284-05), Mosley, March 4, 2008; 2008 FC 290, the Court directed the RPD to consider evidence of enormous backlogs and prolonged or indefinite periods of detention before trial in the claimant's country.

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Note 41

Kicheva, Zorka v. M.E.I. (F.C.T.D., no. A-625-92), Denault, December 23, 1993, at 2. The fact of prosecution might conceivably be objectionable where it would entail the claimant's being prosecuted a second time for an offence already dealt with conclusively (i.e., a situation of "double jeopardy"), however, see Chu, supra, footnote 38, especially at 4.

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Note 42

Mohamed, Abd Almoula Mohamed v. M.E.I. (F.C.A., no. A-26-92), Strayer, MacGuigan, Robertson, November 7, 1994. The Court offered little elaboration in its brief reasons, and did not clearly articulate its measure(s) of validity. See also Diab, Wadih Boutros v. M.E.I. (F.C.A., no. A-688-91), Isaac, Marceau, McDonald, August 24, 1994, at 3.

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Note 43

Drozdov, supra, footnote 32, at 5.

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Note 44

In the case of a claimant with links to, for example, an organization which uses violence to achieve political ends, it may be appropriate to consider whether Article 1F applies.

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Note 45

Cheung, supra, footnote 29, at 323, per Linden J.A.

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Note 46

Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.).

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Note 47

Thirunavukkarasu, ibid., at 600, per Linden J.A.

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Note 48

Thirunavukkarasu, ibid., at 601, per Linden J.A.

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Note 49

Toledo, Ruben Fernando San Martin v. M.E.I. (F.C.A., no. A-205-91), Hugessen, Desjardins, Décary, March 1, 1993. See also Singh, Tejinder Pal, supra, footnote 38, at paragraph 15, though compare paragraph 24.

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Note 50

For example: Kaler, Minder Singh v. M.E.I. (F.C.T.D., no. IMM-794-93), Cullen, February 3, 1994, at 5-6; Rajaratnam, Logeswaran v. M.E.I. (F.C.T.D., no. A-678-92), Nadon, June 29, 1994, at 8; Sulemana, Halilu v. M.C.I. (F.C.T.D., no. IMM-3355-94), Muldoon, March 17, 1995, at 13; Iramachanthiran, Irathinam v. M.C.I. (F.C.T.D., no. IMM-2789-95), Simpson, April 24, 1996 (reasons signed July 29, 1996), at 7. In Sran, Gurjeet Singh v. M.C.I. (F.C.T.D., no. IMM-3195-96), McKeown, July 29, 1997, where the claimant had been repeatedly and badly tortured while in police custody, the Court observed: "Torture can never be excused at any time and it is insufficient to characterize it simply as abuse."

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Note 51

For example: Manihani, Saravjit Singh v. M.E.I. (F.C.T.D., no. A-753-92), Noël, September 3, 1993, at 3; Naguleswaran, Pathmasilosini (Naguleswaran) v. M.C.I. (F.C.T.D., no. IMM-1116-94), Muldoon, April 19, 1995. In Naguleswaran, at 4-5, the Court commented that those belonging to militant organizations ought not to be "treated with front-parlour civility".

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Note 52

Brar, Jaskaran Singh v. M.E.I. (F.C.T.D., no. IMM-292-93), Rouleau, September 8, 1993, at 3; Papou, Bhatia v. M.E.I. (F.C.T.D., no. A-1040-92), Rouleau, August 15, 1994, at 3. Note that both of these cases were decided by the same judge. See also Naguleswaran, supra, footnote 51 ,at 4-6: Muldoon J. expressed the view that "western concepts of the administration of justice will just not work in some other countries" (emphasis omitted), given the need of those countries to safeguard public security, cope with civil war, and combat terrorism. And see Nithiyanathan, Anusha v. M.C.I. (F.C.T.D., no. IMM-3402-96), Muldoon, July 30, 1997. at 2-3.

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Note 53

Alfred, Rayappu v. M.E.I. (F.C.T.D., no. IMM-1466-93), MacKay, April 7, 1994, at 5: "The tribunal did not assess the physical mistreatment of the applicant by Colombo police in terms of persecution. Under the International Covenant on Civil and Political Rights [,] Articles 7 and 4 make clear that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment even in times of public emergency." See also Kanapathypillai, Indrarajan v. M.C.I. (F.C.T.D., no. IMM-3724-96), Heald, July 11, 1997, at 3.

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Note 54

Brar, supra, footnote 52, at 3.

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Note 55

Mahalingam, Paramalingam v. S.G.C. (F.C.T.D., no. A-79-93), Joyal, November 2, 1993, at 6; Naguleswaran, supra, footnote 51, at 5-6. But see Bragagnini-Ore, Gianina Evelyn v. S.S.C. (F.C.T.D., no. IMM-2243-93), Pinard, February 4, 1994, at 2. While the statement "Short detentions for the purpose of preventing disruption or dealing with terrorism do not constitute persecution" may be generally true, the CRDD must take into account the special circumstances of the claimant, in particular his age and, given that age, the impact of his prior experiences as forecasted in a psychological report. See also Velluppillai, Selvaratnam v. M.C.I. (F.C.T.D., no. IMM-2043-99), Gibson, March 9, 2000, and Murugamoorthy, Rajarani v. M.C.I. (F.C., no. IMM-4706-02), O'Reilly, September 29, 2003; 2003 FC 1114, where the Court agreed that, while in general short detentions for legitimate enforcement purposes do not constitute persecution, the Board must consider the particular circumstances of the claimant, including factors such as the person's age and prior experiences, in deciding whether he or she was persecuted. Kularatnam, Suhitha v. M.C.I. (F.C., no. IMM-3530-03), Phelan, August 12, 2004; 2004 FC 1122 at paragraph 10 affirms this position. In Abu El Hof, Nimber v. M.C.I. (F.C., no. IMM-1494-05), von Finckenstein, November 8, 2005; 2005 FC 1515, the Court upheld as reasonable the RPD's conclusion that the claimant's two short detentions and interrogation, although humiliating, could be viewed as necessary security measures, given the heightened security in Israel at the time.

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Note 56

El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994, at 4; Joseph, Christy Shanthakumar v. S.S.C. (F.C.T.D., no. IMM-7503-93), MacKay, November 18, 1994, at 3-4.

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Note 57

Murugiah, Rahjendran v. M.E.I. (F.C.T.D., no. 92-A-6788), Noël, May 18, 1993, at 3-4; Soma, Ester Elvira v. M.C.I. (F.C.T.D., no. A-1129-92), Richard, November 15, 1994, at 3; Kandiah, Palachandran v. M.C.I. (F.C.T.D., no. IMM-7125-93), Cullen, December 7, 1994, at 7; Balasubramaniam, Sriharan v. M.C.I. (F.C.T.D., no. IMM-5414-93), Muldoon, December 13, 1994, at 4-6; Yassodaran, Magalingam v. M.C.I. (F.C.T.D., no. IMM-1677-95), Reed, April 4, 1996, at 2; Iramachanthiran, supra, footnote 50, at 7-8; Nithiyanathan, supra, footnote 52, at 3; and Puvanendiran, Premalatha v. M.C.I. (F.C.T.D., no. IMM-3595-96), Heald, July 8, 1997, at page 2.

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Note 58

In Wickramasinghe v. M.C.I. (F.C.T.D., no. IMM-2489-01), Martineau, April 26, 2002; 2002 FCT 470, the Trial Division, following Thirunavukkarasu, supra, footnote 46, held "that beatings, arbitrary arrests and detention of suspects, even in a state of emergency, can never be justified or considered a legitimate part of investigations into criminal or terrorist activities, however dangerous the suspects are thought to be."

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Note 59

In Rafieyan, Majid v. M.C.I. (F.C., no. IMM-4221-06), Tremblay-Lamer, July 6, 2007; 2007 FC 727, the Court, reviewing a decision of an immigration officer on a humanitarian and compassionate application, noted that the officer did not err in finding that while penalties prescribed by law may be indicative of risk, they are not determinative of the issue where there is evidence that these laws are not being enforced.

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Note 60

Chan (S.C.C.), supra, footnote 33, per Major J., at 664-5 and 666-7.

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Note 61

Chan (S.C C.), ibid., per Major J., at 658. See also page 666.

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Note 62

Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.), at 394, and Nejad, Saeed Javidani-Tabriz v. M.C.I. (F.C.T.D., no. IMM-4624-93), Richard, November 16, 1994, at 3-4 (re exit laws); Butt, Abdul Majid (Majeed) v. S.G.C. (F.C.T.D., no. IMM-1224-93), Rouleau, September 8, 1993 (re Pakistan's Ordinance XX), Drozdov, supra, footnote 32, at 5 (re stripping of citizenship); John, Lindyann v. M.C.I. (F.C.T.D., no. IMM-2833-95), Simpson, April 24, 1996 (reasons signed July 29, 1996), at 10, 17-19 and 20 (re law criminalizing homosexual acts). More generally, note Torres, Alejandro Rodriguez v. M.C.I. (F.C.T.D., no. IMM-503-94), Simpson, February 1, 1995 (reasons signed April 26, 1995), at 4-5: "In my view, refugee claims are not to be considered on a theoretical level which ignores the realities of the evidence. ... [The Refugee Division] was entitled to make a practical assessment of the possibility of the Applicant facing future persecution."

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Note 63

See, for example, Cheng v. M.C.I. (F.C.T.D., no. IMM-6589-00), Pinard, March 1, 2002; 2002 FCT 211 and Zheng v. M.C.I. (F.C.T.D., no. IMM-2415-01), Martineau, April 19, 2002; 2002 FCT 448.

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Note 64

There may be an overstay law which applies to all residents of a country or to all of the country's citizens, and which provides for penalties of fine or incarceration. Alternatively, a law may provide that a non-citizen resident (including a stateless resident) who travels abroad must return and report periodically, and that failure to do so will result in the loss of resident status and the right to return: e.g. Altawil, supra, footnote 23.

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Note 65

For an example of this last situation, see Losolohoh, James Salah v. M.E.I. (F.C.T.D., no. IMM-2324-94), Wetston, December 13, 1994.

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Note 66

Valentin, supra, footnote 62, at 392.

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Note 67

Valentin, supra, footnote 62, at 394-396.

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Note 68

However, see M.S. v. M.C.I. (F.C.T.D., no. A-132-91), McKeown, August 27, 1996, at 4. The Court suggested that the severity of the penalty might be a very significant factor. See also Asadi, Sedigheh v. M.C.I. (F.C.T.D., no. IMM-1921-96), Lutfy, April 18, 1997, at 4.

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Note 69

See also Perez, Sofia Sofi v. M.C.I. (F.C., no. IMM-6504-09), Snider, August 23, 2010; 2010 FC 833, where the Court applied Valentin and also found that based on the evidence, it was far from clear that the claimant would be charged and convicted under the applicable law. She could still apply for a special re-entry permit to return to Cuba and her allegation of imprisonment was mere speculation.

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Note 70

Pernas Hernandez, Euler v. M.C.I. (F.C., no. IMM-2072-08), Phelan, March 4, 2009; 2009 FC 229.

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Note 71

Shakarabi, Seyed Hassan v. M.C.I. (F.C.T.D., no. IMM-2440-95), Reed, March 21, 1996, at 2 and 3. See also Asadi, supra, footnote 68, at 4 and Acosta Ramirez, Giselle v. M.C.I. (F.C., no. IMM-2151-06), O'Keefe, July 6, 2007; 2007 FC 721, where the Court noted in obiter that the documentary evidence seems to indicate that the situation of medical doctors in Cuba is different than that of other professionals.

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Note 72

Castaneda, supra, footnote 27, at 4-5 (Cuba). See also Moslim, supra, footnote 40. In Chow, Wing Sheung v. M.C.I. (F.C.T.D., no. A-1476-92), McKeown, March 26, 1996, at 3, the Court noted that the Refugee Division had found that neither the maximum prescribed penalty nor the penalties actually imposed were harsh.

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Note 73

For an example of a situation which was found not to constitute desertion, see Nejad, supra, footnote 62, at 3.

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Note 74

Musial, supra, footnote 24, at 292-293, per Thurlow C.J.

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Note 75

Popov, Leonid Anatolievich v. M.E.I. (F.C.T.D., no. IMM-2567-93), Reed, April 11, 1994; Reported: Popov v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 242 (F.C.T.D.), at 244.

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Note 76

Garcia, Marvin Balmory Salvador v. S.S.C. (F.C.T.D., no. IMM-2521-93), Pinard, February 4, 1994. See also Barisic, supra, footnote 9, at 4, where the claimant avoided conscription into the Croatian army because he did not wish to kill people with whom he had lived. The Court said that the Refugee Division was entitled to conclude that his motives were those shared by all reluctant combatants. In Haoua, Mehdi v. M.C.I. (F.C.T.D., no. IMM-698-99), Nadon, February 21, 2000, the Court stated at para. 16 "… I also note that military service does not, in itself, constitute persecution. Rather, the Applicant's claim hinged on the fear that he would be forced to commit atrocities if he were drafted. If there is no evidence of atrocities, as there was none in this case, there is no evidence of persecution."

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Note 77

Zolfagharkhani, supra, footnote 25.

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Note 78

Musial, supra, footnote 24, also dealt with military service but Zolfagharkhani, supra, footnote 25 has replaced Musial as the chief authority not only with respect to the more encompassing topic of laws of general application, but also with respect to this particular example of such laws. See Chapter 9, section 9.3.2.

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Note 79

See Chapter 9, section 9.3.2.

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Note 80

Ates, Erkan v. M.C.I. (F.C.A., no. A-592-04), Linden, Nadon, Sharlow, October 5, 2005; 2005 FCA 322 [Appeal from Ates, Erkan v. M.C.I. (F.C., no. IMM-150-04), Harrington, September 27, 2004; 2004 FC 1316]; leave to appeal to the Supreme Court of Canada dismissed without costs March 30, 2006 (31246). This case was followed in Ielovski, Vladimir v. M.C.I. (F.C., no. IMM-3520-07), de Montigny, June 13, 2008; 2008 FC 739; and in Hinzman v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 561; 2006 FC 420.

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Note 81

Note that the decision of the Court only dealt with the Convention refugee claim with no consideration of whether the claimant might have a successful claim under s. 97 of the Immigration and Refugee Protection Act (person in need of protection). Section 97 is beyond the purview of this paper.

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Note 82

Zolfagharkhani, supra, footnote 25, at 550 and 552.

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Note 83

See Blagoev, Stoycho Borissov v. M.E.I. (F.C.A., no. A-827-91), Heald, Desjardins, Linden, July 19, 1994, at 2, where the Court was of the view that the claimant, a deserter, had not established that the applicable law, "being a law of general application, would be applied otherwise than on a neutral and equitable basis." Also Ahani, Roozbeh v. M.C.I. (F.C.T.D., no. IMM-4985-93), MacKay, January 4, 1995, at 5, where the Court said that the Refugee Division was entitled to find that the detentions and any associated mistreatment were related to the claimant's failure to complete his military service, rather than to his Kurdish origin or related political views. On the other hand, see Diab, supra, footnote 42, at 3, where the Court held that the Refugee Division erred in that it failed to consider whether the claimant's opposition to serving in a particular militia (which had press-ganged him) constituted a political opinion which could result in persecution.

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Note 84

Zolfagharkhani, supra, footnote 25, at 553-556.

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Note 85

Sladoljev, Dejan v. M.E.I. (F.C.T.D., no. IMM-3160-94), Cullen, July 4, 1995, at 4. The Court did not mention Zolfagharkhani, supra, footnote 25.

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Note 86

See also paragraphs 170 to 174 of the UNHCR Handbook.

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Note 87

Popov, supra, footnote 75, at 244. See also Tkachenko, Alexander v. M.C.I. (F.C.T.D., no. IMM-802-94), McKeown, March 27, 1995, at 4. In Gebre-Hiwet, Tewodros v. M.C.I. (F.C., no. IMM-3844-09), Phelan, April 30, 2010; 2010 FC 482, the claimants, Ethiopian immigrants to Israel, performed their military service but objected to operations in Gaza and alleged that Ethiopians were mistreated by being given either the most menial or the most dangerous jobs. However, they took no steps with respect to either alleged discrimination nor to avail themselves of the available alternatives to military service.

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Note 88

Zolfagharkhani, supra, footnote 25, at 553-555.

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Note 89

Ciric v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 65 (T.D.). In Hophany, Parwiz v. M.E.I. (F.C.T.D., no. A-802-92), Jerome, July 19, 1994, at 3-4 there appears what might be a statement to the contrary. However, the exact meaning of the statement is uncertain and, in any event, the views expressed by the Court of Appeal in Zolfagharkhani, supra, footnote 25 - which was not mentioned in Hophany - must take precedence.

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Note 90

Zolfagharkhani, supra, footnote 25, at 555. See also: Diab, supra, footnote 42, at 3 (possible crimes against humanity); and Ciric, supra, footnote 89, at 74-8. It is not enough for the claimant to show that a particular conflict has been condemned by the international community; it must also be the case that his refusal to participate was based on the condemnation: Sladoljev, supra, footnote 85, at 4. And there must be a reasonable chance that the claimant would indeed be required to participate in the objectionable operations: Zolfagharkhani, supra, footnote 25, at 547-548; Velickovic, Slobodan v. M.C.I. (F.C.T.D., no. IMM-4394-94), Richard, May 11, 1995, at 2 and 3.

Pronouncements from organizations such as Amnesty International, Helsinki Watch, and the Red Cross may constitute condemnation by the world community; condemnation by the United Nations is not necessary: Ciric, supra, footnote 89, at 75.

A non-defensive incursion into foreign territory is military activity that violates basic international standards, and United Nations condemnation of such an incursion is condemnation of the incursion as contrary to basic rules of human conduct: Al-Maisri, Mohammed v. M.E.I. (F.C.A., no. A-493-92), Stone, Robertson, McDonald, April 28, 1995, at 3-4.

There will also be instances where political expediency will prevent the UN or its member states from condemning the violation of international humanitarian law. This is why reports from credible non-governmental organizations, especially when they are converging and hinge on ground staff, should be accorded credit. Such reports may be sufficient evidence of unacceptable and illegal practices. Lebedev, Vadim v. M.C.I. (F.C., no. IMM-2208-06), de Montigny, July 9, 2007; 2007 FC 728, cited with approval in Tewelde, Baruch v. M.C.I. (F.C., no. IMM-81-06), Gauthier, October 24, 2007; 2007 FC 1103, Ielovski, supra, footnote 80; and Mohilov, David v. M.C.I. (F.C., no. IMM-1044-08), Beaudry, November 21, 2008; 2008 FC 1292.

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Note 91

Popov, supra, footnote 75, at 245. There must be a probability, and not merely a possibility, that the military will engage in the offending activity: Hashi, Haweya Abdinur v. M.C.I. (F.C.T.D., no. IMM-2597-96), Muldoon, July 31, 1997, at 5, alluding to page 555 of Zolfagharkhani. In Sounitsky, Alexander v. M.C.I. (F.C., no. IMM-2184-07), Mosley, March 14, 2008; 2008 FC 345, the PRRA officer referred to evidence acknowledging the existence of abuses and the allegations by some international organizations about Israeli Defence force practices and gave a reasoned explanation for finding that the abuses were isolated and not systemic. A similar finding was made in Volkovitsky, Olga v. M.C.I. (F.C., no. IMM-567-09), Shore, September 10, 2009; 2009 FC 893. In Key, Joshua Adam v. M.C.I. (F.C., no. IMM-5923-06), Barnes, July 4, 2008; 2008 FC 838, the issue was raised as to whether widespread violations of international law carried out by a military force but not rising to the level of war crimes or crimes against humanity can support a refugee claim by a conscientious objector. The case law does not support the idea that refugee protection is only available where the particulars of one's objection to military service would, if carried out, exclude a claim by that person to protection.

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Note 92

Zolfagharkhani, supra, footnote 25, at 555.

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Note 93

Diab, supra, footnote 42, at 2-3.

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Note 94

Talman, Natalia v. S.G.C. (F.C.T.D., no. IMM-5874-93), Joyal, January 11, 1995, at 7. See also: Popov, supra, footnote 75, at 244-5; Frid, Mickael v. M.C.I. (F.C.T.D., no. IMM-6694-93), Rothstein, December 15, 1994, at 3.

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Note 95

Frid, ibid., at 3. See also Baranchook, Peter v. M.C.I. (F.C.T.D., no. IMM-876-95), Tremblay-Lamer, December 20, 1995; and Moskvitchev, Vitalli v. M.C.I. (F.C.T.D., no. IMM-70-95), Dubé, December 21, 1995, where the Court upheld decisions of Post-Claim Determination Officers (PCDOs). In Baranchook, at 4, the PCDO compared the Israeli penalty for refusing to serve with international standards, and concluded that the penalty was neither excessive nor draconian. In Moskvitchev, at 3, the PCDO found that a sentence of six months to five years for draft evasion in Moldova would not be inhuman [sic] or extreme. [Section 2(1) of the Immigration Regulations speaks of "inhumane treatment" and "extreme sanctions".] Insults and attacks on a conscientious objector while in prison do not constitute persecution: Treskiba, Anatoli Benilov v. M.C.I. (F.C., no. IMM-1999-08), Pinard, January 13, 2009; 2009 FC 15.

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Note 96

In Al-Maisri, supra, footnote 90, the claimant had deserted from an army which was participating in an operation condemned as contrary to basic rules of human conduct, and the Court noted that "the punishment for desertion which would likely be visited upon the [claimant] …, whatever that punishment might be, would amount to persecution." (at 3, emphasis added).

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Note 97

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.). See also Moskvitchev, supra, footnote 95, at 3. In Lowell, Matthew David v. M.C.I. (F.C., no. IMM-4599-08), Zinn, June 22, 2009; 2009 FC 649, on an unsuccessful application for humanitarian and compassionate relief, the Court noted that the evidence indicated that the applicant (a U.S. deserter) would likely not serve more than 15 months (of a possible sentence of 7 years confinement or possibly the death penalty) and only then after receiving due process.

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Note 98

Talman, supra, footnote 94; Kogan, Meri v. M.C.I. (F.C.T.D., no. IMM-7282-93), Noël, June 5, 1995, at 5 and 7. The operative idea seems to be that the claimant should be considered bound by his own voluntary decision. However, the fact that the claimant chose to immigrate despite knowing of compulsory service might also raise a question as to the strength (or even genuineness) of his conviction.

On the other hand, see Agranovski, Vladislav v. M.C.I. (F.C.T.D., no. IMM-2709-95), Tremblay-Lamer, July 3, 1996, at 5: at the time of immigrating to Israel, the claimant had known that there was compulsory military service, and the Refugee Division therefore did not believe he had reasons of principle for refusing to serve; however, the Court overturned this conclusion, noting that the claimant had been brought to the country as a minor by his parents, and that he had thought he would be able to avail himself of alternative service.

Return to note 98 referrer

Note 99

Hinzman, Jeremy, RPD TA4-01429, B. Goodman, March 16, 2005; Hughey, Brandon David, RPD TA4-05781, B. Goodman, August 16, 2005.

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Note 100

Hinzman, supra, footnote 80; Hughey, Brandon David v. M.C.I. (F.C., no. IMM-5571-05), Mactavish, March 31, 2006; 2006 FC 421.

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Note 101

Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171 (leave to appeal dismissed by the SCC on November 15, 2007, [2007] S.C.C.A. No. 321). In Colby, Justin v. M.C.I. (F.C., no. IMM-559-07), Beaudry, June 26, 2008; 2008 FC 805, the Court found that the claimant's claim was materially indistinguishable from the decision in Hinzman except that the claimant was a medic who was deployed to Iraq instead of a foot soldier who deserted after his unit had been deployed to that country. Key, supra, footnote 91, confirms that the Hinzman decision set the bar very high for deserters from the United States military seeking refuge in Canada. However, because the Board took the issue of state protection "off the table" at the hearing, Mr. Key should be given the opportunity to address fully the issue of state protection in a rehearing before the Board. See also Glass, James Corey v. M.C.I. (F.C., no. IMM-2552-08), Frenette, July 17, 2008; 2008 FC 881. Landry, Dale Gene v. M.C.I. (F.C., no. IMM-5148-08), Harrington, June 8, 2009; 2009 FC 594 also followed Hinzman. While the preceding cases following Hinzman were based on conscientious objection (effectively, political opinion), in Smith, Bethany Lanae v. M.C.I. (F.C., no. IMM-677-09), de Montigny, November 20, 2009; 2009 FC 1194, the claim was based on sexual orientation and the Court noted that the RPD failed to consider evidence that the U.S. military judicial system was unfair to, and biased, against homosexuals and that the claimant could not effectively defend herself against a charge of desertion.

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Note 102

In both Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.) at 220-221 and Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at paragraph 118, it was recognized that the fear of persecution under China's one-child policy is largely dependent on the practices of the relevant local authority. A review of the documentary evidence in Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983 indicated that this was still the case at the time of the hearing. In Lau, Yei Wah v. M.C.I. (F.C., no. IMM-2329-07), Phelan, April 17, 2008; 2008 FC 499, a PRRA officer found that payment of a fee for a breach of the one-child policy was not persecution. It was incumbent on the claimant to put forward evidence that the fee was so large as to amount to persecution, either as a general proposition or in regard to the claimant personally.

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Note 103

Cheung, supra, footnote 29.

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Note 104

Chan (F.C.A.), supra, footnote 31.

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Note 105

Ward, supra, footnote 18.

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Note 106

Chan (S.C.C.), supra, footnote 33.

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Note 107

Chan (F.C.A.), supra, footnote 31 at 690, 692-693 and 696, per Heald J.A.

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Note 108

Cheung, supra, footnote 29, at 322. See also Chan (S.C.C.), supra, footnote 33, per Major J. at 657. The Supreme Court noted that, for the claim to succeed, evidence must show both that there is a subjective fear and that the fear is "objectively well-founded" (per Major J., at 659). According to the Court, the evidence did not establish a serious possibility that certain harm would be inflicted - i.e., did not establish an objective basis (per Major J., at 666). The Court also had doubts as to whether subjective fear was made out (per Major J., at 664).

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Note 109

"Physical compulsion is not the only mechanism for forcing a person to do something which they would not of their own free choice choose to do": Liu, Ying Yang v. M.C.I. (F.C.T.D., no. IMM-4316-94), Reed, May 16, 1995, at 3. The claimant had been subjected to "incredible pressure": her work unit, and she herself and her husband, would have incurred fines if she had had a second child; also, on two occasions a member of the work unit had accompanied her to a hospital where she was to undergo sterilization. Such pressure amounts to "forcing", as does denying a person 80% of his salary (at 2-3).

Compare Chan (S.C.C), supra, footnote 33, per Major J., at 667: "... the [claimant] failed to provide ... evidence to substantiate his claim that the pressure from the Chinese authorities to submit to sterilization would extend beyond psychological and financial pressure to actual physical coercion." It is unclear whether Mr. Justice Major (i) was of the view that psychological and financial pressure could not constitute forcing (and could not constitute persecution), or (ii) was simply focusing upon the specific allegation made by the appellant (namely, that he would be physically coerced), or (iii) did not think the particular psychological and financial pressures confronting this claimant would be severe enough to constitute persecution. Interpretation (i) might be a dubious one, given that Major J. did not clearly assert this view, and did not present a discussion of the issue.

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Note 110

Cheung, supra, footnote 29, at 322-325.

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Note 111

Chan (S.C.C.), supra, footnote 33, per La Forest J. (dissenting) at 636. The majority in the Supreme Court did not expressly comment on the issue, although Mr. Justice Major appeared to assume that forced sterilization would indeed constitute persecution: see, for example, 658 and 672-3. See also Chan (F.C.A.), supra, footnote 31, per Heald J.A. at 686, and per Mahoney J.A. (dissenting) at 704.

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Note 112

Cheung, supra, footnote 29, at 323-324. For a Supreme Court response to the "legitimate end" argument - a response complementing that of Linden J.A. in Cheung, supra, footnote 29 - see the remarks of La Forest J. (dissenting), at 631-632 in Chan (S.C.C.), supra, footnote 33.

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Note 113

Chan (S.C.C.), supra, footnote 33, per La Forest J. (dissenting) at 636.

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Note 114

Lai, Quang v. M.E.I. (F.C.T.D., no. IMM-307-93), McKeown, May 20, 1994, at 2.

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Note 115

Lai, ibid., at 3. In Liu, supra, footnote 109, the Court noted there was no evidence that the adult claimants, who had had a second child while in Canada, still objected to the family planning policy or methods of the Chinese government; on this basis, the Court held that evidence of subjective fear was lacking (at 3-4). See also Cheng, Kin Ping v. M.C.I. (F.C.T.D., no. IMM-176-97), Tremblay-Lamer, October 8, 1997, at page 2: the male claimant had no reason to fear persecution for violation of the family planning policy, since his wife had already been sterilized (following the birth of one child and a subsequent forced abortion).

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Note 116

Cheung, supra, footnote 29, at 322.

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Note 117

Chan (F.C.A.), supra, footnote 31, per Heald J.A. at 690-3, and per Desjardins J.A. at 716-21. In his dissent, Mahoney J.A. rejected one delineation of a particular social group, but accepted another, at 705.

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Note 118

Chan (S.C.C.), supra, footnote 33, per Major J. at 658 and 673.

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Note 119

Chan (S.C.C.), supra, footnote 33, per La Forest J. (dissenting) at 646.

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Note 120

Chan (F.C.A.), supra, footnote 31, at 693-696, per Heald J.A.

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Note 121

Chan (F.C.A.), supra, footnote 31, at 721-723, per Desjardins J.A. Compare Kwong, Kam Wang (Kwong, Kum Wun) v. M.C.I. (F.C.T.D., no. IMM-3464-94), Cullen, May 1, 1995, at 5.

When Chan came before the Supreme Court, both the majority and the minority declined to decide whether the claimant's action of having a second child "was sufficiently expressive of a political opinion to independently found a refugee claim": per Major J., at 672; per La Forest J. (dissenting), at 648-649. Mr. Justice La Forest thought the evidence pointed to other possible connections to political opinion (at 647-8). However, His Lordship's broaching of these possibilities and his reading of the evidence were disapproved of by Mr. Justice Major (at 671-2).

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Note 122

Cheng, supra, footnote 108 at page 2.

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Note 123

Also see the reference to Daghighi in footnote 31, above.

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Note 124

Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.). See also Sanno, Aminata v. M.C.I. (F.C.T.D., no. IMM-2124-95), Tremblay-Lamer, April 25, 1996.

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Note 125

Namitabar (T.D.), supra, footnote 23, at 47. In Namitabar (F.C.A.), the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so..."

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Note 126

Fathi-Rad, supra, footnote 23, at 4-5. In Rabbani, supra, footnote 37, the Refugee Division had concluded that a violation of Iran's Islamic dress code could not form the basis of a well-founded fear of persecution. It had noted the dress conventions applicable to various groups elsewhere, had indicated that such conventions did not involve violations of basic human rights, and had said that the same was true of the Iranian dress code. The Court observed (at page 2) that, in making these comparisons, the Refugee Division had "... ignored, failed to appreciate or trivialized the persecutory aspects of the Islamic dress code ..." Furthermore, the Refugee Division had failed to acknowledge documentary evidence regarding the penalties for failure to comply with the code.

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Note 127

Hazarat, Ghulam v. S.S.C. (F.C.T.D., no. IMM-5496-93), MacKay, November 25, 1994, at 2-4.

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Note 128

Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60, (T.D.) at 65.

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Note 129

Vidhani, ibid., at 62 and 65-66. See also Sanno, supra, footnote 124; Gwanzura, Unity v. M.C.I. (F.C.T.D., no. IMM-1907-96), Heald, July 10, 1997, at 4 (wife substitution); and Fofanah, Isha v. M.C.I. (F.C.T.D., no. IMM-4795-97), Muldoon, July 16, 1998 (a brute who rapes a woman is certainly not following traditional customary practices).

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Note 130

Ameri, Ghulamali v. M.C.I. (F.C.T.D., no. IMM-3745-94), MacKay, January 30, 1996.

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Note 131

Ameri, ibid., at 9.

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Note 132

Pour, Malek Mohammad Nagmeh Abbas v. M.C.I. (F.C.T.D., no. IMM-3650-95), Gibson, June 6, 1996, at 5-7.

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Note 133

Namitabar (F.C.T.D.), supra, footnote 23. In Namitabar (F.C.A.), the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so..."

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Note 134

Fathi-Rad, supra, footnote 23.

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Note 135

Ali, Shaysta-Ameer, supra, footnote 9, at 2. One of the claimants was a nine-year-old girl who could have avoided persecution only by refusing to go to school, and thus forswearing the basic human right to an education. The Court considered her to be a Convention refugee. In a rather different context, the Court again indicated that the Refugee Division must not expect a claimant to buy peace for herself with an unconscionable self-denial (namely, continuing to lie about her lack of religious inclinations): Kazkan, Shahrokh Saeedi v. M.C.I. (F.C.T.D., no. IMM-1313-96), Rothstein, March 20, 1997, at 2-3.

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Note 136

Fathi-Rad, supra, footnote 23, at 4. See also Namitabar, supra, footnote 23, at 46.

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Note 137

Namitabar (F.C.T.D.), ibid., at 49. In Fathi-Rad, supra, footnote 23, the Convention ground invoked for the part of the claim pertaining to the dress code appears to have been membership in a particular social group; the social group in question was not expressly named in the Court's reasons. In Namitabar (F.C.A.), supra, footnote 23, the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so..."

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Note 138

Sicak, Bucak v. M.C.I. (F.C., no. IMM-4699-02), Gauthier, December 11, 2003; 2003 FC 1457.

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Note 139

Kaya, Bedirhan Mustafa v. M.C.I. (F.C., no. IMM-5565-03), Harrington, January 14, 2004; 2004 FC 45. See also Abbes, Lotfi v. M.C.I. (F.C., no. IMM-2989-06), Tremblay-Lamer, February 1, 2007; 2007 FC 112, where the Court found that the prohibition against wearing a veil in Tunisia did not constitute persecution.

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Note 140

Kaya, supra, footnote 139, para. 18.

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Note 141

Aykut, Ibrahim v. M.C.I. (F.C., no. IMM-5310-02), Gauthier, March 26, 2004; 2004 FC 466, at para. 40. See also Karaguduk, Abdulgafur v. M.C.I. (F.C., no. IMM-2695-03), Henegan, July 5, 2004; 2004 FC 958, where the Court affirmed the decision of the Pre-Removal Risk Assessment Officer who "found that although the Principal Applicant's daughter experienced discrimination as a result of wearing headscarves, this discrimination did not amount of persecution." (para. 6).

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Note 142

Vidhani, supra, footnote 128, at 64-65 and 67. See also Gwanzura, supra, footnote 129, at 2.

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Note 143

Ali, Shaysta-Ameer, supra, footnote 9, at 1-2.

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Note 144

Annan, supra, footnote 124. See also Gwanzura, supra, footnote 129.

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Note 145

Annan, ibid., at 31. The issue of state protection was touched upon in Vidhani, supra, footnote 128 as well, at 66-67. The Court found that the Refugee Division had not dealt adequately with the issue, and in particular with the claimant's explanation for not having sought police assistance.

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Note 146

Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act, updated November 25, 1996, as continued in effect by the Chairperson on June 28, 2002 under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.

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Note 147

Butt, supra, footnote 62; see also Thathaal, Sabir Hussain v. S.S.C. (F.C.T.D., no. A-1644-92), McKeown, December 15, 1993.

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Note 148

Ahmad, Masroor v. M.E.I. (F.C.T.D., no. A-555-92), Rothstein, June 16, 1994, at 3-5 and 9.

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Note 149

Rehan, Muhammad Arif v. M.C.I. (F.C.T.D., no. A-580-92), Gibson, October 18, 1996.

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Note 150

[1990] Imm. A.R. 61 (Eng.C.A.). Quoted in Rehan, ibid., at 3.

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Note 151

Rehan, supra, footnote 149: see in particular the bottom of page 4, the top of page 5, and page 6.

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Note 152

Rehan, ibid., at 6, and also at 5.

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Note 153

Ahmed, Irfan v. M.C.I. (F.C.T.D., no. IMM-2725-96), Joyal, July 4, 1997, at 5

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Note 154

Mehmood, Nasir v. M.C.I. (F.C.T.D., no. IMM-2256-97), McGillis, May 14, 1998.

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Note 155

Bhatti, Naushaba v. S.S.C. (F.C.T.D., no. A-89-93), Jerome, September 14, 1993. Reported: Bhatti v. Canada (Secretary of State). (1994), 25 Imm. L.R. (2d) 275 (F.C.T.D.), at 278-279. See also 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.), at 287-8 - although this case was the subject of conflicting interpretations in Bhatti on the one hand and Pour-Shariati v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 767 (T.D.) and Rafizade, Rahi v. M.C.I. (F.C.T.D., no. IMM-2570-94), Cullen, March 7, 1995. Reported: Rafizade v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm. L.R. (2d) 261 (F.C.T.D.) on the other.

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Note 156

Pour-Shariati, supra, footnote 155, at 772-3. Rothstein J. certified a question as to whether indirect persecution constitutes a basis for a claim.

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Note 157

Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (T.D.), at 206-207.

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Note 158

Casetellanos, ibid., at 207. See also Vyramuthu, Sanmugarajah v. S.G.C. (F.C.T.D., no. IMM-6277-93), Rouleau, January 26, 1995, at 4. On the other hand, in Nina, Razvan v. M.C.I. (F.C.T.D., no. A-725-92), Cullen, November 24, 1994, the Court, at 9, seems to have considered the mistreatment of the child, who was kidnapped in order to put pressure on his father, to be persecution of the father. In Hashmat, Suhil v. M.C.I. (F.C.T.D., no. IMM-2331-96), Teitelbaum, May 9, 1997, Mr. Justice Teitelbaum noted (at pages 4-5) that earlier cases had rejected the principle of indirect persecution. However, he indicated that, where the Refugee Division was dealing with "the separate issue" of whether a the claimant would undergo undue hardship in journeying to a potential internal refuge (this issue being a subset of the "reasonableness" branch of the IFA test), relevance attached to the potential hardship of the wife and daughter who would accompany him on the journey: at page 5. In two Sri Lanka IFA cases the issue of indirect persecution was considered. In Kanagalingam, Uthayakumari v. M.C.I. (F.C.T.D., no. IMM-566-98), Blais, February 10, 1999, the panel considered the loss of the applicant's father, brother and fiancé as misfortunes that did not relate to her potential for resettlement in Colombo. There was no serious possibility of persecution should she return to Colombo. Similarly, in Jeyarajah, Vijayamalini v. M.C.I. (F.C.T.D., no. IMM-2473-98), Denault, March 17, 1999, it was noted that a person is not a refugee simply because a family member (husband) is persecuted. However, in Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983, the Court held that "any persecution which the second child Canadian-born infant will experience in China is directly experienced by the parents, and is not 'indirect persecution'." But see Dombele, Adelina v. M.C.I. (F.C.T.D., no. IMM-988-02), Gauthier, February 26, 2003; 2003 FCT 247 where the CRDD determined the claimant's husband to be a refugee, but not the claimant or her daughters. The Court held that the panel was right in finding that the persecution affecting the claimant's husband and which could affect the claimant and her daughters was indirect persecution, thus not persecution within the meaning of the Convention (Pour-Shariati).

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Note 159

Pour-Shariati, Dolat v. M.E.I. (F.C.A., no. A-721-94), MacGuigan, Robertson, McDonald, June 10, 1997. Reported: Pour-Shariati v. Canada (Minister of Employment and Immigration) (1997), 39 Imm. L.R. (2d) 103 (F.C.A.); affirming [1995] 1 F.C. 767 (T.D.).

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Note 160

An appropriate case was found in Tomov, Nikolay Harabam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005; 2005 FC 1527. The Court held that it is not enough to point to the persecution suffered by family members if it is unlikely to affect the claimant directly. Here, as a result of his common-law relationship with his Roma spouse, the claimant would be directly at risk as long as they remain together in a marital relationship.

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Note 161

Cetinkaya, Lukman v. M.C.I. (F.C.T.D., no. IMM-2559-97), Muldoon, July 31, 1998.

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Note 162

A claim based on indirect persecution may also be distinguished from a claim based on (direct) persecution by reason of membership in a particular social group which consists of a certain family. In Kaprolova, Elena v. M.C.I. (F.C.T.D., no. IMM-388-97), Teitelbaum, September 25, 1997, judicial review was granted because the Refugee Division had mistaken a social-group claim for an indirect-persecution claim. See also Chapter 4, section 4.5 (in particular footnote 27).

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Note 163

Pour-Shariati, supra, footnote 155, at 772-773 and 774-775; Casetellanos, supra, footnote 157, at 201-202; Vyramuthu, supra, footnote 158, at 3; Busto, Nidia Graciela Saez de v. M.C.I. (F.C.T.D., no. IMM-3704-94), Rothstein, February 16, 1995, at 3; Rafizade, supra, footnote 155, at 6; Martinez, Oscar v. M.C.I. (F.C.T.D., no. IMM-462-96), Gibson, June 6, 1996, at 3-4; Aden, Ahmed Abdulkadir v. M.C.I. (F.C.T.D., no. IMM-2912-95), MacKay, August 14, 1996. Reported: Aden v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 40 (F.C.T.D.), at 6; and Addullahi, Isse Samatar v. M.C.I. (F.C.T.D., no. IMM-3170-95), Gibson, November 4, 1996, at 6; Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998, at page 5. In Shaikh, Sarwar v. M.C.I. (F.C.T.D., no. IMM-2489-98), Tremblay-Lamer, March 5, 1999, following Dawlatly, the Court held that the principle of family unity has not been incorporated in the definition of Convention refugee. There are other means in the Immigration Act, such as s.46.04(1) of ensuring that dependants of Convention refugees are granted permanent residence. See also Serrano, Roberto Flores v. M.C.I. (F.C.T.D., no. IMM-2787-98), Sharlow, April 27, 1999 where it was held that a family connection is not an attribute requiring Convention protection in the absence of an underlying Convention ground for the claimed persecution, and Aoul, Djamila Hadjadj v. M.C.I. (F.C.T.D., no. IMM-2880-99), Blais, April 6, 2000; Gutierrez, Blanca v. M.C.I. (F.C.T.D., no. IMM-1118-99), Lemieux, May 12, 2000; Rajasegaram, Arulmalar v. M.C.I. (F.C.T.D., no. IMM-2440-99), Reed, June 19, 2000. But see Ripalda, Alma v. M.C.I. (F.C.T.D., no. IMM-455-98), McDonald, July 15, 1998, where the Court, without referring to jurisprudence stating that the principle of family unity is not a basis for granting Convention refugee status, indicated that the Refugee Division could have considered the claim under that principle.

Compare Cheung, supra, footnote 29, at 325, where the concept of family unity is mentioned without analysis; and see Azofeifa, Kattia Perez v. M.C.I. (F.C.T.D., no. IMM-1899-94), McKeown, December 21, 1994, at 4-5 and 6, as well as S.S.C. v. Ilbeigi-Asli, Mehrbanou (F.C.T.D., no. IMM-2766-94), McKeown, March 17, 1995, at 4.

Some cases apparently see little difference between the notion of indirect persecution and the principle of family unity: see Pour-Shariati, supra, footnote 155, 772-774, and Rafizade, supra, footnote 155, at 5-6. But note that since "family" may constitute a particular social group (see Chapter 4), a relative who is targeted, albeit as a secondary object of the persecutor's animosity, may base his or her claim on direct persecution by reason of membership in a particular social group.

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Note 164

M.C.I. v. Khan, Azmat Ali (F.C., no. IMM-7232-04), Gauthier, March 22, 2005; 2005 FC 398.

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Note 165

Gribovskaia, Elena v. M.C.I. (F.C., no. IMM-5848-04), Rouleau, July 11, 2005; 2005 FC 956.

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