CHAPTER 10 - EXCLUSION CLAUSES - ARTICLE 1E

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TABLE OF CONTENTS

  1. 10.1. INTRODUCTION
    1. 10.1.1. Ability to Return and Remain
    2. 10.1.2. Nature of the Residency Rights
    3. 10.1.3. Onus to Renew Status
    4. 10.1.4. Rights and Obligations of a National
    5. 10.1.5. Fear of Persecution and State Protection in the Article 1E Country
  2. TABLE OF CASES

10. EXCLUSION CLAUSES - ARTICLE 1E

10.1. INTRODUCTION

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:

[28] 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

[29] 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:

[19] 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

  1. the right to return to the country of residence;
  2. the right to work freely without restrictions;
  3. the right to study, and
  4. 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.

TABLE OF CASES

  1. Adereti, Adebayo Adeyinka v. M.C.I. (F.C., no. IMM-9162-04), Dawson, September 14, 2005; 2005 FC 1263
  2. Choezom, Tendzin v. M.C.I. (F.C., no. IMM-1420-04), von Finckenstein, September 30, 2004; 2004 FC 1329
  3. Choovak: M.C.I. v. Choovak, Mehrnaz (F.C.T.D., no. IMM-3080-01), Rouleau, May 17, 2002; 2002 FCT 573
  4. Choovak: M.C.I. v. Choubak (a.k.a. Choovak), Mehrnaz Joline (F.C., no. IMM-3462-05), Blanchard, April 26, 2006; 2006 FC 521
  5. CRDD M92-10972/5, Gilad, Sparks, May 7, 1993
  6. Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998
  7. Feimi, Jani Ardian v. M.C.I. (F.C.T.D., no. IMM-2934-98), Teitelbaum, June 11, 1999
  8. Hamdan, Kadhom Abdul Hu v. M.C.I. (F.C.T.D., no. IMM-1346-96), Jerome, March 27, 1997. Reported: Hamdan v. Canada (Minister of Citizenship and Immigration) (1997), 38 Imm. L.R. (2d) 20 (F.C.T.D.)
  9. Hassanzadeh, Baharack v. M.C.I. (F.C., no. IMM-3545-03), Blais, December 18, 2003; 2003 FC 1494
  10. Hurt v. Canada (Minister of Manpower and Immigration), [1978] 2 F.C. 340 (C.A.)
  11. Hussein Ramadan, Hanan v. M.C.I. (F.C., no. IMM-1510-10), Tremblay-Lamer, November 5, 2010; 2010 FC 1093
  12. Juzbasevs
  13. Juzbasevs, Rafaels v. M.C.I. (F.C.T.D., no. IMM-3415-00), McKeown, March 30, 2001; 2001 FCT 262
  14. Kamana, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999
  15. Kanesharan, Vijeyaratnam v. M.C.I. (F.C.T.D., no. IMM-269-96), Heald, September 23, 1996. Reported: Kanesharan v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 185 (F.C.T.D.)
  16. Kroon, Victor v. M.E.I. (F.C.T.D., no. IMM-3161-93), MacKay, January 6, 1995, at 3. Reported: Kroon v. Canada (Minister of Employment and Immigration) (1995), 28 Imm. L.R. (2d) 164 (F.C.T.D.)
  17. Li, Hong Lian v. M.C.I. (F.C., no. IMM-585-09), Mandamin, August 24, 2009; 2009 FC 841
  18. Mahdi, Roon Abdikarim v. M.C.I. (F.C.T.D., no. IMM-1600-94), Gibson, November 15, 1994. Reported: Mahdi v. Canada (Minister of Citizenship and Immigration) (1994), 26 Imm. L.R. (2d) 311 (F.C.T.D.)
  19. Mahdi: M.C.I. v. Mahdi, Roon Abdikarim (F.C.A., no. A-632-94), Pratte, MacGuigan, Robertson, December 1, 1995. Reported: Canada (Minister of Citizenship and Immigration) v. Mahdi (1995), 32 Imm. L.R. (2d) 1 (F.C.A.)
  20. Mai, Jian v. M.C.I. (F.C., no. IMM-1155-09), Lemieux, February 22, 2010; 2010 FC 192
  21. Manoharan: M.C.I. v. Manoharan, Noel Harshana (F.C., no. IMM-5617-04), Gibson, August 22, 2005; 2005 FC 1122
  22. Mobarekeh, Fariba Farahmad v. M.C.I. (F.C., no. IMM-5995-03), Layden-Stevenson, August 11, 2004; 2004 FC 1102
  23. Mohamed, Hibo Farah v. M.C.I. (F.C.T.D., no. IMM-2248-96), Rothstein, April 7, 1997
  24. Mohamud: M.C.I. v. Mohamud, Layla Ali (F.C.T.D., no. IMM-4899-94), Rothstein, May 19, 1995
  25. Murcia Romero, Ingrid Yulima v. M.C.I. (F.C., no. IMM-3370-05), Snider, April 21, 2006; 2006 FC 506
  26. Nepete, Firmino Domingos v. M.C.I. (F.C.T.D., no. IMM-4471-99), Haneghan, October 11, 2000
  27. Nwaeze, Jones Ernest Am v. M.C.I. (F.C., no. IMM-1112-09), Tremblay-Lamer, November 10, 2009; 2009 FC 1151
  28. Olschewski, Alexander Nadirovich v. M.E.I. (F.C.T.D., no. A-1424-92), McGillis, October 20, 1993
  29. Parshottam, Karim Badrudin v. M.C.I. (F.C., no. IMM-192-07), Mosley, January 15, 2008; 2008 FC 51
  30. Parshottam, Karim Badrudin v. M.C.I. (F.C.A., no. A-73-08), Evans, Ryer, Sharlow (concurring in result), November 14, 2008; 2008 FCA 355. Reported: Parshottam v. Canada (Minister of Citizenship and Immigration, [2009] 3 F.C.R. 527 (F.C.A.)
  31. Ramadan, Hanan Hussein v. M.C.I. (F.C., no. IMM-1510-10), Tremblay-Lamer, November 5, 2010; 2010 FC 1093
  32. Sartaj: M.C.I. v. Sartaj, Asif (F.C., no. IMM-1998-05), O'Keefe, March 14, 2006; 2006 FC 324
  33. Shahpari, Khadijeh v. M.C.I. (F.C.T.D., no. IMM-2327-97), Rothstein, April 3, 1998. Reported: Shahpari v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 139 (F.C.T.D.)
  34. Shamlou, Pasha v. M.C.I. (F.C.T.D, no. IMM-4967-94), Teitelbaum, November 15, 1995. Reported: Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.)
  35. Tajdini: M.C.I. v. Tajdini, Sima (F.C., no. IMM-1270-06), Mactavish, March 1, 2007; 2007 FC 227
  36. Wassiq, Pashtoon v. M.C.I. (F.C.T.D., no. IMM-2283-95), Rothstein, April 10, 1996, at 6-7. Reported: Wassiq v. Canada (Minister of Citizenship and Immigration) (1996), 33 Imm. L.R. (2d) 238 (F.C.T.D.)
  37. Zeng: M.C.I. v. Zeng, Guanqiu (F.C.A., no. A-275-09), Noël, Layden-Stevenson, Stratas, May 10, 2010; 2010 FCA 118
  38. Zhao, Ri Wang v. M.C.I. (F.C., no IMM-9624-03), Blanchard, August 4, 2004; 2004 FC 105

Notes

Note 1

M.C.I. v. Sartaj, Asif (F.C., no. IMM-1998-05), O'Keefe, March 14, 2006; 2006 FC 324, where the Court found that the RPD erred in finding the claimant was excluded with respect to Costa Rica but then going on to rule favourably with respect to his claim against Pakistan.

Return to note 1 referrer

Note 2

In Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998, the claimant, a citizen of Sudan, was eligible for temporary resident status in Greece, a country where he had never resided, because of his marriage to a Greek national. The Court held that the CRDD erred in excluding the claimant under Article 1E on the ground that he should have sought asylum in Greece.

Return to note 2 referrer

Note 3

Kroon, Victor v. M.E.I. (F.C.T.D., no. IMM-3161-93), MacKay, January 6, 1995, at 3. Reported: Kroon v. Canada (Minister of Employment and Immigration) (1995), 28 Imm. L.R. (2d) 164 (F.C.T.D.), at 167.

Return to note 3 referrer

Note 4

Mahdi, Roon Abdikarim v. M.C.I. (F.C.T.D., no. IMM-1600-94), Gibson, November 15, 1994. Reported: Mahdi v. Canada (Minister of Citizenship and Immigration) (1994), 26 Imm. L.R. (2d) 311 (F.C.T.D.), affirmed on appeal M.C.I. v. Mahdi, Roon Abdikarim (F.C.A., no. A-632-94), Pratte, MacGuigan, Robertson, December 1, 1995. Reported: Canada (Minister of Citizenship and Immigration) v. Mahdi (1995), 32 Imm. L.R. (2d) 1 (F.C.A.). This decision concerned an application to vacate refugee protection for concealing prior permanent resident status in the United States. After becoming a permanent resident of the United States, the respondent had returned to Somalia, her country of nationality, and thereby renounced her U.S. status. The Court noted that this was not a case of a person voluntarily renouncing the protection of one country in order to seek refuge elsewhere, and held that she was not precluded from later claiming Convention refugee status in Canada. The Court stated that the real question that the Board had to decide was whether the respondent was, when she applied for admission to Canada, a person who was still recognized by the competent authorities of the United States as a permanent resident of that country. The possibility that the American authorities would no longer recognize her as a permanent resident and would, for that reason deny her the right to return to the United States, had to be taken into account in deciding whether it was established on a balance of probabilities that the American authorities still recognized the respondent as a permanent resident.

Return to note 4 referrer

Note 5

M.C.I. v. Zeng, Guanqiu (F.C.A., no. A-275-09), Noël, Layden-Stevenson, Stratas, May 10, 2010; 2010 FCA 118. The Court distinguished the case of Mahdi, supra, footnote 4, and stated that it does not stand for the proposition that the relevant date for determining status is the date when the claimant applied for admission to Canada. That time frame, which had been referred to in Mahdi, was applied in many decisions of the CRDD and RPD where the claimant had allowed their status to expire after their arrival in Canada and before the hearing of their claim, and those decisions were upheld by the Federal Court-Trial Division and Federal Court, e.g., M.C.I. v. Choovak, Mehrnaz (F.C.T.D., no. IMM-3080-01), Rouleau, May 17, 2002; 2002 FCT 573. However, in exceptional cases, where the claimant left the third country because it did not offer a safe-haven, as in M.C.I. v. Manoharan, Noel Harshana (F.C., no. IMM-5617-04), Gibson, August 22, 2005; 2005 FC 1122, where the minor claimant was escaping an abusive father in the country where he had taken up residence, the Court did not apply Mahdi.

Return to note 5 referrer

Note 6

The test was applied in Ramadan, Hanan Hussein v. M.C.I. (F.C., no. IMM-1510-10), Tremblay-Lamer, November 5, 2010; 2010 FC 1093.

Return to note 6 referrer

Note 7

In Olschewski, Alexander Nadirovich v. M.E.I. (F.C.T.D., no. A-1424-92), McGillis, October 20, 1993, although the claimants could re-apply for Ukrainian citizenship, their applications would be dealt with on a "case-by-case" basis and it was not clear that they would be able to return to their country of birth. In M.C.I. v. Mohamud, Layla Ali (F.C.T.D., no. IMM-4899-94), Rothstein, May 19, 1995, the Court noted that the permit given to the Somali claimant by the Italian authorities, which was renewable annually, "does not give her rights analogous to Italian nationals. While the [claimant] had many rights, such as the right to work and travel in, and leave and return to Italy, she did not have the right to remain in Italy once the war was over and conditions [in Somalia] returned to normal." While Justice Rothstein was "not prepared to say that section E of Article 1 of the Convention means that a person … must have rights that are identical in every respect to those of a national," it did, in his view, "mean that an important right such as the right to remain (in the absence of unusual circumstances such as a criminal conviction) must be afforded." In Kanesharan, Vijeyaratnam v. M.C.I. (F.C.T.D., no. IMM-269-96), Heald, September 23, 1996. Reported: Kanesharan v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 185 (F.C.T.D.), although the Sri Lankan claimant had been given extended permission to remain in the United Kingdom, the Court found that the CRDD erred in excluding him because the UK Home Office reserved the right to remove persons to their country of nationality "should the prevailing circumstances change significantly in a positive manner," and their eligibility to remain in the UK indefinitely after seven years was not a certainty. The "tentative and conditional language" used by the Home Office did not entitle the CRDD to conclude as it did. See also Hurt v. Canada (Minister of Manpower and Immigration), [1978] 2 F.C. 340 (C.A.), at 343, where the claimant, a Polish national, was advised by the German authorities that his temporary visa, which was soon due to expire, would not be renewed and that he would be deported.

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Note 8

Wassiq, Pashtoon v. M.C.I. (F.C.T.D., no. IMM-2283-95), Rothstein, April 10, 1996, at 6-7. Reported: Wassiq v. Canada (Minister of Citizenship and Immigration) (1996), 33 Imm. L.R. (2d) 238 (F.C.T.D.), at 242.

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Note 9

Murcia Romero, Ingrid Yulima v. M.C.I. (F.C., no. IMM-3370-05), Snider, April 21, 2006; 2006 FC 506.

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Note 10

Choezom, Tendzin v. M.C.I. (F.C., no. IMM-1420-04), von Finckenstein, September 30, 2004; 2004 FC 1329.

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Note 11

Zeng, supra, footnote 5. The female claimant's temporary resident status in Chile had also expired.

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Note 12

Parshottam, Karim Badrudin v. M.C.I. (F.C.A., no. A-73-08), Evans, Ryer, Sharlow (concurring in result), November 14, 2008; 2008 FCA 355. Reported: Parshottam v. Canada (Minister of Citizenship and Immigration, [2009] 3 F.C.R. 527 (F.C.A.). Affirming Parshottam, Karim Badrudin v. M.C.I. (F.C., no. IMM-192-07), Mosley, January 15, 2008; 2008 FC 51.

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Note 13

Li, Hong Lian v. M.C.I. (F.C., no. IMM-585-09), Mandamin, August 24, 2009; 2009 FC 841.

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Note 14

Mai, Jian v. M.C.I. (F.C., no. IMM-1155-09), Lemieux, February 22, 2010; 2010 FC 192.

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Note 15

Mohamed, Hibo Farah v. M.C.I. (F.C.T.D., no. IMM-2248-96), Rothstein, April 7, 1997. Although the Swedish permanent residence certificate had to be periodically renewed, there was no evidence that permanent residence in Sweden was subject to some form of arbitrary cancellation.

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Note 16

Agha, Sharam Pahlevan Mir v. M.C.I. (F.C.T.D., no. IMM-4282-99), Nadon, January 12, 2001.

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Note 17

M.C.I. v. Tajdini, Sima (F.C., no. IMM-1270-06), Mactavish, March 1, 2007; 2007 FC 227. The Court upheld the RPD's conclusion that the claimant was not asylum shopping. She did not voluntarily renounce her status in order to seek asylum elsewhere. She had left the U.S. in 1996, returning to her native Iran, and travelled to Canada in 2004 to escape from problems that occurred in Iran several years after her return there.

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Note 18

M.C.I. v. Choubak (a.k.a. Choovak), Mehrnaz Joline (F.C., no. IMM-3462-05), Blanchard, April 26, 2006; 2006 FC 521.

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Note 19

Shamlou, Pasha v. M.C.I. (F.C.T.D, no. IMM-4967-94), Teitelbaum, November 15, 1995. Reported: Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.). In that case, the claimant, a citizen of Iran, had lived in Mexico for an extended period and obtained a travel and identity document which allowed him to leave and re-enter Mexico. The claimant allowed his Mexican travel documents to lapse when he unsuccessfully sought residence in the U.S.A. before coming to Canada.

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Note 20

Nepete, Firmino Domingos v. M.C.I. (F.C.T.D., no. IMM-4471-99), Haneghan, October 11, 2000.

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Note 21

Shahpari, Khadijeh v. M.C.I. (F.C.T.D., no. IMM-2327-97), Rothstein, April 3, 1998. Reported: Shahpari v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 139 (F.C.T.D.). This case was applied in Kamana, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999; Nepete, supra, footnote 20; Juzbasevs, Rafaels v. M.C.I. (F.C.T.D., no. IMM-3415-00), McKeown, March 30, 2001; 2001 FCT 262; M.C.I. v. Choovak, supra, footnote 5; and Hassanzadeh, Baharack v. M.C.I. (F.C., no. IMM-3545-03), Blais, December 18, 2003; 2003 FC 1494.

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Note 22

Shamlou, supra, footnote 19.

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Note 23

Shahpari, supra, footnote 21.

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Note 24

Shahhari, supra, footnote 21; Nepete, supra, footnote 20.

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Note 25

Kamana, supra, footnote 21; Hassanzadeh, supra, footnote 21.

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Note 26

Kroon, supra, footnote 3, at 167.

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Note 27

Kroon, supra, footnote 3, at 167. The particular rights and obligations at issue in Kroon were discussed at considerable length by the CRDD in M92-10972/5, Gilad, Sparks, May 7, 1993. The Court itself did not delineate clearly the extent and nature of the rights and obligations which must exist at a minimum. It simply agreed with the approach taken by the CRDD in this case.

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Note 28

Kroon, supra, footnote 3, at 168. See Atle Grahl-Madsen, The Status of Refugees in International Law, (Leyden: A W. Sijthoff, 1966), Volume 1, pages 269-270, and James C. Hathaway, The Law of Refugee Status, (Toronto: Butterworths, 1991), pages 211-214.

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Note 29

Shamlou, supra, footnote 19, at 152.

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Note 30

(Toronto: Butterworths, 1992), vol. 1, §8.218 at 8.204-8.205 (Issue 17/2/97).

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Note 31

Shamlou, supra, footnote 19, at 142.

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Note 32

Hamdan, Kadhom Abdul Hu v. M.C.I. (F.C.T.D., no. IMM-1346-96), Jerome, March 27, 1997. Reported: Hamdan v. Canada (Minister of Citizenship and Immigration) (1997), 38 Imm. L.R. (2d) 20 (F.C.T.D.), at 23. In this case, the Court found it critical that the claimant could neither work nor access social services in the Philippines.

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Note 33

Juzbasevs, supra, footnote 21.

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Note 34

Kamana, supra, footnote 21.

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Note 35

Ahmed, Nadeem Imtiaz v. M.C.I. (F.C., no. IMM-626-07), Phelan, February 15, 2008; 2008 FC 195.

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Note 36

Kroon, supra, footnote 3, at 168. The Court upheld the finding of the CRDD that the claimant enjoyed the rights and obligations of a national of Estonia but disagreed with its decision to nevertheless consider the merits of the claim against Estonia after having determined Estonia to be an Article 1E country.

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Note 37

Kroon, supra, footnote 3, at 167-168. Quaere whether there is an internal contradiction in the judgment or whether MacKay J. might be simply suggesting that in considering whether a country is in fact an Article 1E country, the Board should consider whether the claimant faces a threat of persecution there (as opposed to considering the issue of persecution after determining the country to be an Article 1E country). See also Shamlou, supra, footnote 19, at 142, where the Court notes that both the CRDD, in its reasons, and the respondent, in his arguments, referred to the lack of persecution in Mexico (the Article 1E country) as one of the factors taken into consideration in concluding that the claimant enjoyed most of the rights and obligations of a national in that country. The Court itself does not list this factor in its conclusions, at 151-152, however, it is arguably implied in that it finds the CRDD's conclusions reasonable.

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Note 38

Olschewski, supra, footnote 7.

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Note 39

Olschewski, supra, footnote 7, at 11.

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Note 40

Feimi, Jani Ardian v. M.C.I. (F.C.T.D., no. IMM-2934-98), Teitelbaum, June 11, 1999.

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Note 41

Zhao, Ri Wang v. M.C.I. (F.C., no IMM-9624-03), Blanchard, August 4, 2004; 2004 FC 1059. See also the following cases where the Court upheld the RPD's determination of the availability state protection in Article 1E countries: Li, supra, footnote 13; Mai, supra, footnote 14; and Hussein Ramadan, Hanan v. M.C.I. (F.C., no. IMM-1510-10), Tremblay-Lamer, November 5, 2010; 2010 FC 1093.

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Note 42

M.C.I. v. Choovak, supra, footnote 5. See also Nepete, supra, footnote 20, where the Court upheld the CRDD's finding that the claimant, an Angolan national, did not establish a well-founded fear of persecution in his country of residence (the Czech Republic). A similar approach was taken by the Court in Juzbasevs, supra, footnote 21, and Nwaeze, Jones Ernest Am v. M.C.I. (F.C., no. IMM-1112-09), Tremblay-Lamer, November 10, 2009; 2009 FC 1151.

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Note 43

Adereti, Adebayo Adeyinka v. M.C.I. (F.C., no. IMM-9162-04), Dawson, September 14, 2005; 2005 FC 1263.

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Note 44

Mobarekeh, Fariba Farahmad v. M.C.I. (F.C., no. IMM-5995-03), Layden-Stevenson, August 11, 2004; 2004 FC 1102.

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