According to section 98 of the Immigration and Refugee Protection Act, a person who is excluded under Article 1E of the Refugee Convention is neither a Convention refugee nor a person in need of protection, and cannot therefore be determined to be such a person in relation to any country.Note 1
For this ground of exclusion to apply, the person must have taken up residence in a country outside the country of his or her nationality and have been recognized as having the rights and obligations which are attached to the possession of nationality of that country.Note 2 The provision is not limited to a consideration of those countries in which the claimant took up residence as a refugee.Note 3
10.1.1. Ability to Return and Remain
At a minimum, the claimant must be able to return to, and remain in,Note 4 the putative Article 1E country before this provision can be invoked to exclude the claimant from protection under the Refugee Convention.
In Zeng,Note 5 the Court of Appeal clarified the law as to the relevant date for determining status in the putative Article 1E country. In that case, the Court of Appeal answered the following certified questions in the affirmative:
Is it permissible for the Refugee Division to consider an individual's status in a third country upon arrival in Canada and thereafter, up until and including the date of the hearing before the Refugee Division in order to determine whether an individual should be excluded under Article 1E of the Refugee Convention?
Is it also permissible for the Refugee Division to consider what steps the individual took or did not take to cause or fail to prevent the loss of status in a third country in assessing whether Article 1E should apply?
The Court of Appeal reformulated the test to be applied to Article 1E determinations as follows:
 Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts.Note 6
 It will be for the RPD to weigh the factors and arrive at a determination as to whether the exclusion will apply in the particular circumstances.
The Court of Appeal in Zeng also stated:
 At the hearing of this appeal, the submissions of the parties evolved toward common ground. The Minister and the respondents agreed on a number of basic propositions, each of which I consider to be unassailable. Those propositions are:
- the objectives set out in subsection 3(2) of the IRPA seek, among other things, to provide protection to those who require it and, at the same time, provide a fair and efficient program that maintains the integrity of the system;
- the purpose of Article 1E is to exclude persons who do not need protection;
- asylum shopping is incompatible with the surrogate dimension of international refugee protection;
- Canada must respect its obligations under international law;
- there may be circumstances where the loss of status in the third country is through no fault of a claimant in which case the claimant need not be excluded.
10.1.2. Nature of the Residency Rights
If the claimant's status in the country where he or she has taken up residence is tentative, Article 1E does not apply. If the claimant has some sort of temporary status which must be renewed, and which may be cancelled,Note 7 or if the claimant does not have the right to be return, Article 1E may not be applicable.
In Wassiq,Note 8 the Court pointed out that the correct test is whether the putative Article 1E country recognizes the claimant's right to return there, even if his or her travel documents have expired, and not whether in international law, or from Canada's perspective, that country has formal or legal responsibility for the claimant.
In Murcia Romero,Note 9 the Court held that the RPD erred in finding that the claimants were excluded under Article 1E by virtue of their status in the United States. The principal claimant's permanent residence in the U.S. was "conditional" on the support of her estranged husband, which she stated was no longer forthcoming, and therefore she could not renew her residency card.
The Court took a rigorous approach to this issue in Choezom.Note 10 The claimant, who was born in India of Tibetan parents, was considered to be a citizen of China. As a Tibetan resident of India, she was issued a Registration Certificate (RC), which was renewed annually. When she travelled to the United States for the purposes of study and employment (she resided there from 1994 to 2003), she was issued an Identity Certificate (IC), which she continued to renew periodically. The RPD determined that the claimant had a right of return to India, that Indian authorities would issue her a RC for Tibetans upon return to India, and that she would not be at risk of being deported to Tibet. The RPD took into account the fact that the claimant and her parents, who continued to reside in India, had no difficulties in returning to India after travelling abroad. The Court held that the RPD had erred in excluding the claimant under Article 1E. To return to reside in India, the claimant must obtain a NORI (No Objection to Return to India), a valid IC and a visa. The requirement for annual RCs, ICs, visas, NORIs and the prohibition to visit certain locations within India are all antithetical to the "basic rights of status as nationals". All of these rights are not permanent and their renewal is at the discretion of the Indian government. The fact that there is no evidence that the Indian government has so far refused to issue RCs, ICs, visas or NORIs does not mean that it has given up the right to do so. Tibetan residents of India do not enjoy the same basic rights of status as Indian citizens enjoy.
However, where there is prima facie evidence of permanent residence status, the Courts have imposed an onus on the claimant to establish whether or not that status was lost. The claimants did not meet that onus in the following cases. In Zeng,Note 11 the claimants (spouses) were found to have permanent resident status in Chile, even though they had left Chile with the intention of settling in China and had been outside Chile for more than a year at the time of their RPD hearing. In Parshottam,Note 12 the claimant was found to have permanent resident status in the United States at the time of his PRRA assessment in December 2006, even though his green card had expired in June 2004. In Li,Note 13 the claimant was found to have permanent residence in Argentina. She had acquired permanent resident status in 2003 with no expiry date. She was able to return to Argentina after an absence of almost two years and had made no inquiries as to whether she could re-enter Argentina after being in Canada. In Mai,Note 14 the RPD determined that it was doubtful that the claimants, nationals of China, had lost their permanent resident status in Peru but even if they had, they could easily reacquire it without going back to China. In Mohamed,Note 15 the claimants made refugee claims in Sweden, left for Canada while their claims were still pending, and were granted permanent residence status in Sweden one month later. The Court upheld the CRDD's exclusion finding.
In Agha,Note 16 the Court concluded that the claimant, an Iranian national, had not adduced any evidence showing that he no longer had status in the United States, aside from the suggestion that he might lose his status because of his extended absence since 1985 and the voluntary departure order he received in 1995 when he was there on his way to Canada. According to an INS official, loss of status due to an extended absence was not automatic and the claimant continued to be a permanent resident until a U.S. immigration judge determined otherwise.
The Court came to a different conclusion on loss of U.S. permanent residence in Tajdini.Note 17 Based on the evidence before the RPD in that case, the Court found that a ruling by a U.S. immigration court on loss of residency was not required. The Court upheld the reasonableness of the RPD's finding that the claimant had established, on a balance of probabilities, that she was no longer a permanent resident, having regard to factors considered by the U.S. authorities for abandonment of status, such as moving to another country intending to live there permanently, remaining outside the U.S. for one year without obtaining a re-entry permit or returning resident visa, and failing to file income tax returns while living abroad.
In Choubak,Note 18 the RPD considered the claimant's assertion that, even though she had a German residency permit that was valid until December 2000, she lost her permanent residence status when she came to Canada on a student visa in September 1999, because she intended to remain permanently in Canada. The RPD found that the claimant was not excluded under Article 1E as her permanent residence permit had lapsed under s. 44(1)2 of the German Aliens Act (viz. "leaves the country for a reason which is inherently other than temporary"). The Court held that it was unreasonable for the Board to hold that the meaning of German law turns on the subjective desire of the claimant. That content of that provision requires proof by way of expert evidence of that foreign law. There was insufficient evidence to reasonably allow the Board to find that competent authorities in Germany would have considered the claimant to no longer be a permanent resident at the time of her admission to Canada.
10.1.3. Onus to Renew Status
The case of Shamlou,Note 19 as well as other decisions of the Federal Court, indicate that there is an onus on the claimant to renew their status in the putative Article 1E country, if it is renewable. Moreover, recognition of permanent resident status can exist without the right of re-entry.Note 20
In Shahpari,Note 21 the claimant, an Iranian citizen, moved to France in 1984. In 1991, she acquired permanent residence and was issued a carte de résident, valid to 2001. In 1993, she returned to Iran, but in 1994, came back to France, and two months later came to Canada. At her CRDD hearing in 1997, her exist/re-entry visa for France had expired, but the panel found that Article 1E applied because that visa could be renewed. The Trial Division held that: (1) the onus is on the Minister in Article 1E cases, but once prima facie evidence is adduced, the onus shifts to the claimant to demonstrate why, having destroyed her carte de résident, she could not apply for a new one; and (2) that the evidence before the panel reasonably allowed it to conclude that the visa could be renewed.
Justice Rothstein also added:
[Claimants] should also remember that actions they themselves take which are intended to result in their not being able to return to a country which has already granted them Convention refugee status may well evidence an absence of the subjective fear of persecution in their original country from which they purport to be seeking refuge.
In summary, the Federal Court has held that, once there is prima facie evidence that Article 1E applies, the onus shifts to the claimant to demonstrate why:
- their travel document cannot be renewedNote 22;
- their (destroyed or lost) residency card cannot be re-issuedNote 23;
- a re-entry visa cannot be obtainedNote 24;
- their residency status cannot be renewed.Note 25
10.1.4. Rights and Obligations of a National
It does not appear that, for Article 1E to apply, a person must have the rights that are identical in every respect to those of a national of the country where the person has taken residence.
In determining whether the claimant falls within the ambit of Article 1E, the Trial Division in KroonNote 26 endorsed a consideration of the basic rights to which the claimant is entitled under the constitution and the laws of the putative Article 1E country and a comparison of those with the rights acknowledged for that country's nationals. The Court stated:
Here, the tribunal … sought to assess whether the [claimant] would be recognized under the Estonian Constitution and its laws as having basic rights and obligations which attach to nationals of that country. It found, with some important exceptions, that was the case and that in certain key respects the [claimant] would enjoy, in Estonia, a status comparable to that of Estonian nationals and consistent with international conventions and treaties relating to rights and obligations of individuals. In particular, it found … that the [claimant] could be expected to be restored to his rights of residency in Estonia as a registered non-citizen, upon his return, that within a reasonable time he would be entitled to apply for citizenship and in the meantime had a right to remain there with rights similar to most of those enjoyed by citizens.Note 27
The Court found this approach to be reasonable and one supported by legal writers such as Grahl-Madsen and Hathaway.Note 28
The Court, in Shamlou,Note 29 accepted as "an accurate statement of the law" the following four criteria that the Board should follow in undertaking an analysis of the "basic rights" enjoyed by a claimant, as outlined by Lorne Waldman in Immigration Law and Practice:Note 30
- the right to return to the country of residence;
- the right to work freely without restrictions;
- the right to study, and
- full access to social services in the country of residence.
If the [claimant] has some sort of temporary status which must be renewed, and which could be cancelled, or if the [claimant] does not have the right to return to the country of residence, clearly the [claimant] should not be excluded under Art. 1E.
The Court was satisfied the CRDD had come to a reasonable conclusion in determining that the claimant, an Iranian who had become a permanent resident of Mexico, enjoyed substantially the same rights as Mexican nationals. Although not entitled to vote, these rights included the ability to leave, re-enter and reside anywhere in the country, access to free health care, the right to purchase and own property, and the ability to seek, obtain and change employment. Furthermore, the Mexican authorities had at no time attempted to return him to Iran and there was no allegation of persecution in Mexico.Note 31
It does not appear that determinations under Article 1E necessarily entail a rigid consideration of all of the criteria identified in the Shamlou case. In Hamdan,Note 32 the Trial Division stated as follows:
It is not necessary to comment on whether the criteria laid out in Shamlou must all be satisfied for exclusion under Article 1(E), or whether other criteria may be relevant in some cases. The relevant criteria will change depending on the rights which normally accrue to citizens in the country of residence subject to scrutiny.
In Juzbasevs,Note 33 the Court noted that the case law is not clear as to what factors need to be considered. It would appear that determinations under Article 1E do not necessarily involve a strict consideration of all factors regarding residency, as the analysis depends on the particular nature of the case at hand. International standards and practices may allow a state to limit government employment, political participation (such as the right to vote, the right to hold office), and some property rights to nationals. In Latvia, the country in question, certain professions were also closed to non-nationals, but this did not negate the application of Article 1E.
In Kamana,Note 34 the claimant had acquired refugee status in Burundi. The evidence indicated that refugee status in Burundi included the right not to be deported from that country. Except for the right to vote, he had the same rights as did Burundi citizens, namely, the right to education and to work. The Court therefore upheld the CRDD's decision that Article 1E applied.
In Ahmed,Note 35 the Court held that the RPD did not focus on the issue of whether the claimant had the rights and responsibilities of a national in the U.A.E. The right to work and the right to a health card are attributes of the rights of a national but they are not the sole rights to consider. The RPD failed to have before it clear evidence of the rights of U.A.E. nationals, as compared to the rights of the applicant, before it made its determination.
10.1.5. Fear of Persecution and State Protection in the Article 1E Country
A number of decisions of the Federal Court suggest that the RPD can determine whether the claimant has a well-founded fear of persecution for a Convention reason in the Article 1E country, and, whether state protection is available to the claimant in that country.
The first case dealing explicitly with the matter is Kroon. In that case, the Trial Division stated that if a claimant were found to enjoy the rights and obligations of a national,
… that would ordinarily be the end of the matter, for his claim is then excluded from consideration as a refugee claim.Note 36
Earlier in the Kroon judgment, Justice MacKay, in commenting on the purpose of Article 1E, seemed to suggest that if a claimant faced a threat of persecution in the putative Article 1E country, then that country would not be an Article 1E country.
In my view, the purpose of Article 1E is to support regular immigration laws of countries in the international community, and within the Immigration Act of this country to support the purposes of that Act and the policies it seeks to legislate, by limiting refugee claims to those who clearly face the threat of persecution. If A faces such a threat in his own country, but is living in another country, with or without refugee status, and there faces no threat of persecution for Convention reasons, or put another way, A enjoys the same rights of status as nationals of the second country, the function of Article 1E is to exclude that person as a potential refugee claimant in a third country.Note 37 (emphasis added)
A case that dealt implicitly with the issue of whether the CRDD should consider whether the claimant has a well-founded fear of persecution in the Article 1E country was Olschewski.Note 38 There, the CRDD had determined that the claimant did not have a well-founded fear of persecution in Israel and, in the alternative, that he enjoyed the rights and obligations of a national in Ukraine (and was thus excluded) and, furthermore, that his fear of persecution in Ukraine was not well founded. The Court disagreed with all the findings of the CRDD and perhaps, by considering the issue of a well-founded fear of persecution in Ukraine, implicitly agreed that the CRDD could in fact assess a claim against the Article 1E country. As the Court put it,
Accordingly … the Article [1E] would not appear to apply. Alternatively, even if I am wrong in concluding that the Article does not apply, I am nevertheless of the opinion that the Board erred in the articulation of its reasons in support of its conclusion that the [claimants] failed to establish a well-founded fear of persecution in Ukraine on the basis of religion.Note 39
In Feimi,Note 40 the Court dealt with an Albanian national who had moved to Greece to escape a blood feud and was accepted as "an undocumented resident" on the island of Hydra. Although there was no specific reference to Article 1E, in upholding the negative CRDD decision, the Court focused on adequacy of state protection in Greece. In the Court's view, no evidence was presented to indicate the police system was such that Greece could not have offered the claimant protection. In Zhao,Note 41 the Federal Court held that the RPD had properly assessed the availability of state protection from a criminal gang in Brazil, where the claimant, a Chinese national, had permanent residence status.
In Choovak,Note 42 the Court held that the CRDD erred in not turning its mind to the specific claim made by the claimant, an Iranian national, against Germany, where she was given asylum and had a special temporary residence status before coming to Canada.
A different approach was taken in Adereti,Note 43 where the Court upheld the RPD's decision that the claimant, a Nigerian national, did not have a well-founded fear of persecution in Nigeria. Given that the claimant had no legal status as a citizen in Brazil, where he had resided, the Court held that there was no obligation to assess whether adequate state protection existed for him there. The Court noted that claimants must only seek the protection of countries in which they can claim citizenship.
In Mobarekeh,Note 44 the Federal Court held that before the Board considers the issue of state protection with respect to a country other than the claimant's country of nationality, the panel should make clear the basis for considering that issue. As indicated earlier, the issue of availability of state protection may be relevant to the assessment of what rights the claimant enjoys in the putative Article 1E country, and whether there were valid reasons for the claimant to leave the country of residence and seek international protection.