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":
- 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
- 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
- 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
- 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 184.108.40.206.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.
220.127.116.11. 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:
- 98% of the Turkish population is Muslim;
- the principle of secularism as it is applied in Turkey, was established 60 years ago;
- the law banning headscarves in public was upheld by the Turkish Constitutional Court and the European Human Rights Commission upheld this ruling;
- 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),  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
18.104.22.168. 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:
 ... 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