Interpretation of the Convention Refugee Definition in the Case Law - Keypoints


December 31, 2010

(Based on the December 31, 2010 paper)

Refugee Protection Division
Legal Services

Immigration and Refugee Board of Canada


Chapter 2

COUNTRY OF PERSECUTION

  1. The claimant must establish that he or she is a Convention refugee from the country of his or her nationality (or the country of his former habitual residence, if the claimant is not recognized as a citizen of any country). Nationality means citizenship of a particular country. [section 2.1.]

    Canada (Attorney General) v. Ward,
    [1993] 2 S.C.R. 689.

  2. If a claimant is a national of more than one country, the claimant must show that he or she is a Convention refugee with respect to all such countries. [section 2.1.1.]

    Ward, supra.

  3. A claimant may be considered to be a national of a country where the evidence establishes that it is within his or her control to acquire the citizenship of a country: for example, where the application for citizenship is a mere formality and the authorities of that country do not have any discretion to refuse the application. Moreover, there must be a genuine connection or link with that country. [section 2.1.3.]

    Williams v. Canada (Minister of Citizenship and Immigration),
    [2005] 3 F.C.R. 429 (F.C.A.); 2005 FCA 126.

    Bouianova, Tatiana v. M.E.I.
    (F.C.T.D., no. 92-T-1437), Rothstein, June 11, 1993;

    Katkova, Lioudmila v. M.C.I.
    (F.C.T.D., no. IMM-2886-96), McKeown, May 22, 1997.

  4. There is some confusion in the case law of the Federal Court as to whether or not an adverse inference can be drawn from the failure to access possible protection or status in a third country, in cases where there is no automatic right to citizenship. [section 2.1.5.]
  5. The concept "former habitual residence" is only relevant where the claimant is stateless, i.e. he or she does not have a country of nationality. [section 2.2.]
  6. Former habitual residence implies a situation where a stateless person was admitted to a country with a view to enjoying a period of continuing residence of some duration. The claimant does not have to be legally able to return to a country of former habitual residence for it to be so described. The claimant must, however, have established a significant period of de facto residence in the country in question. [section 2.2.1.]

    Maarouf v. Canada (Minister of Employment and Immigration),
    [1994] 1 F.C. 723 (T.D.).

  7. Where the stateless claimant has more than one country of former habitual residence, he or she must show that, on a balance of probabilities he or she would suffer persecution in any country of former habitual residence, and that he or she cannot return to any of his or her other countries of former habitual residence. This test may be termed "any country plus the Ward factor". [section 2.2.2.]

    Thabet v. Canada (Minister of Citizenship and Immigration),
    [1998] 4 F.C. 21 (C.A.).

  8. Statelessness per se does not give rise to a claim to refugee status: the claimant must demonstrate a well-founded fear of persecution based on a Convention ground. [section 2.2.4.]
  9. A denial of a right to return may constitute an act of persecution by the state; however, for it to be the basis of a claim, the refusal must be based on a Convention ground. [section 2.2.5.]
  10. According to paragraph 101 of the UNHCR Handbook, stateless claimants need not avail themselves of state protection since there is no duty on the state to provide protection. The decisions of the Federal Court on this topic are not consistent. [section 2.2.6.]

Chapter 3

PERSECUTION

  1. To be considered persecution, the mistreatment suffered or anticipated must be serious, i.e., it must constitute a key denial of a core human right. [section 3.1.1.1.]

    Canada (Attorney General) v. Ward,
    [1993] 2 S.C.R. 689.

    Chan v. Canada (Minister of Employment and Immigration),
    [1995] 3 S.C.R. 593 (dissenting opinion).

  2. What constitutes a basic human right is determined by the international community, not by any one country. At the same time, in determining whether anticipated actions would constitute fundamental violations of basic human rights, it is acceptable to consider Canadian law. [section 3.1.1.1.]

    Chan, supra.

  3. The second criterion is that, generally, the mistreatment must be repetitive and persistent. However, there should not be an "exaggerated emphasis" on the need for repetition and persistence. The RPD should analyze the quality of incidents in terms of whether they constitute "a fundamental violation of human dignity." [section 3.1.1.2. ]

    Rajudeen, Zahirdeen v. M.E.I.
    (F.C.A., no. A-1779-83), Heald, Hugessen, Stone, July 4, 1984.

    Ranjha, Muhammad Zulfiq v. M.C.I.
    (F.C.T.D., no. IMM-5566-01), Lemieux, May 21, 2003; 2003 FCT 637.

  4. For the claim to succeed, the persecution must be linked to a Convention ground, in other words, there must be a nexus. [section 3.1.1.3.]
  5. While most acts of persecution can be characterized as criminal, not all criminal acts constitute persecution. [section 3.1.1.4.]

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

  6. It is not necessary, in order for persecution to exist, that the perpetrators of the harm belong to a certain category or hold a certain kind of position. In particular, persecution may exist even if state authorities are neither the immediate inflictors of the harm, nor complicit in the infliction. [section 3.1.1.5.]

    Ward, supra;

    Chan, supra.

  7. The claimant may be subject to a number of discriminatory or harassing acts. While these acts may individually not be serious enough to constitute persecution, they may cumulatively amount to persecution. [section 3.1.2.]

    Madelat, Firouzeh v. M.E.I., Mirzabeglui, Maryam v. M.E.I.
    (F.C.A., nos. A-537-89 and A-538-89),
    MacGuigan, Mahoney, Linden, January 28, 1991.


Chapter 4

GROUNDS OF PERSECUTION

  1. A claimant's fear of persecution must be by reason of one of the five grounds enumerated in the definition of Convention refugee - race, religion, nationality, membership in a particular social group and political opinion. There must be a link between the fear of persecution and one of the five grounds. [section 4.1.]

    Canada (Attorney General) v. Ward,
    [1993] 2 S.C.R. 689.

  2. When determining the applicable grounds, the relevant consideration is the perception of the persecutor. This perception need not necessarily conform to the claimant's true beliefs. [section 4.1.]

    Ward, supra.

  3. Freedom of religion includes the right to manifest the religion in public, or private, in teaching, practices, worship and observance. [section 4.4.]

    Fosu, Monsieur Kwaku v. M.E.I.
    (F.C.T.D., no. A-35-93), Denault, November 16, 1994.

  4. The meaning assigned to "particular social group" should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for international refugee protection. [section 4.5.]

    Ward, supra.

  5. As a working rule to achieve the above result, the Supreme Court of Canada in Ward identified three possible categories of particular social groups:
    1. Groups defined by an innate or unchangeable characteristic;
    2. Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
    3. Groups associated by a former voluntary status, unalterable due to its historic permanence. [section 4.5.]

    Ward, supra.

  6. A particular social group cannot be defined solely by the fact that a group of persons are objects of persecution, since the Convention refugee definition requires that the persecution be "by reason of" one of the grounds. [section 4.5.]

    Ward, supra.

  7. The paramount consideration in determining a particular social group is the "general underlying themes of the defence of human rights and anti-discrimination." [section 4.5.]

    Ward, supra.

  8. In the context of the Convention refugee definition, political opinion is any opinion on any matter in which the machinery of state, government and policy may be engaged; however this does not mean that only political opinions regarding the state will be relevant. [section 4.6.]

    Ward, supra.

    Klinko v. Canada (Minister of Citizenship and Immigration),
    [2000] 3 F.C. 327 (C.A.)

  9. The political opinion at issue need not have been expressed outright, it can be perceived or imputed. As well, it need not necessarily conform to the claimant's true beliefs. What is relevant is the perception of the persecutor. A victim of politically motivated persecution is not required to necessarily abandon his commitment to political activism in order to live safely in his country. [section 4.6.]

    Ward, supra.

    Colmenares, Jimmy Sinohe Pimentel v. M.C.I.
    (F.C., no. IMM-5417-05), Barnes, June 14, 2006; 2006 FC 749.

  10. Victims of crime, corruption or vendettas may, in certain circumstances, establish a link between their fear of persecution and one of the five grounds in the definition. A link to political opinion will be established if the actual or perceived expression of the opinion involves matters in which the machinery of the state may be engaged. [section 4.7.]

    Ward, supra;

    Klinko, supra.

  11. The making of a public complaint about widespread corrupt conduct by government officials to a government authority, and thereafter, the complainant suffering persecution on this account, when the corrupt conduct is not officially sanctioned, condoned or supported by the state, constitutes an expression of political opinion and therefore there is nexus to a Convention refugee ground. However, an opinion expressed in opposition to a criminal organization will not provide a nexus on the basis of political opinion unless the disagreement is rooted in political conviction. [section 4.7.]

    Ward, supra;

    Klinko, supra.

  12. Rape and other forms of sexual violence are crimes grounded in the status of women in society and can provide a basis for a claim based on the ground of particular social group.

    Dezameau, Elmancia v. M.C.I.
    (F.C. no., IMM-4396-09), Pinard, May 27, 2010; 2010 FC 559.

    Josile, Duleine v. M.C.I.
    (F.C., no. IMM-3623-10, Martineau, January 17, 2011; 2011 FC 39.


Chapter 5

WELL-FOUNDED FEAR

  1. The definition of Convention refugee is forward-looking, that is, the inquiry concerns what might happen to a claimant if he or she were to return to their country of origin. [section 5.1.]
  2. The claimant does not have to establish that he or she was persecuted in the past or that he or she would or will be persecuted in the future. [section 5.1.]

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

  3. Claimants must establish their case on a balance of probabilities, but this does not mean they have to prove that persecution (on return) would be more likely than not. What they have to establish is that there are "good grounds" for fearing persecution. This may also be stated as a "reasonable" or even a "serious possibility" as opposed to a mere possibility that the claimant would be persecuted if returned to the country of origin. [section 5.2.] The test, which has become known as the "Adjei test", asks the following question: is there a reasonable chance that persecution would take place if the claimant returned to his or her country of origin?

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

  4. The "standard of proof" and the "legal test to be met" must not be confused. The standard of proof refers to the standard the panel will apply in assessing the evidence adduced for the purpose of making factual findings, whereas the legal test is the test that is required to establish the refugee claim is well founded. [section 5.2.]

    Li, Yi Mei v. M.C.I. (F.C.A., no. A-31-04),
     Rothstein, Noël, Malone, January 5, 2005; 2005 FCA 1.

  5. A claimant's subjective fear of persecution must have an objective basis. The subjective fear relates to the existence of a fear of persecution in the mind of the claimant. The objective basis requires that there be a valid basis for this fear. [section 5.3.]

    Rajudeen, Zahirdeen v. M.C.I. (F.C.A., no. A-1779-83),
     Heald, Hugessen, Stone, July 4, 1984.

  6. The assessment of whether a claimant has a subjective fear is inter-twined with an assessment of the claimant's credibility and it often relates to some behaviours which are considered to be inconsistent with such a fear. These behaviours include: [section 5.3.1.; 5.4.]
    • delay in leaving the country of origin; [section 5.4.1.]
    • failure to seek protection in other countries en route to Canada; [section 5.4.2.]
    • delay in making a claim upon arrival in Canada; [section 5.4.3.]
    • returning to the country of alleged persecution (re-availment); [section 5.5.]; and
    • self-endangering actions after making a claim. [section 5.6.]
  7. Generally, delay in making a claim for refugee protection or in leaving the country of persecution is not in itself a decisive factor, however it is a relevant and potentially important consideration. [section. 5.4.]

    Huerta, Martha Laura Sanchez v. M.E.I.
    (F.C.A., no. A-448-91), Hugessen, Desjardins, Létourneau, March 17, 1993.

  8. Delay may constitute sufficient grounds upon which to reject a claim where the delay is inordinate and there is no satisfactory explanation for it. [section 5.4.]
  9. The claimant's explanations for the behaviours that are inconsistent with a fear of persecution must be assessed carefully.

Chapter 6

PROTECTION

  1. The responsibility to provide international protection only becomes engaged when national or state protection is unavailable to the claimant (international protection is surrogate). [section 6.1.1.]

    Canada (Attorney General) v. Ward,
    [1993] 2 S.C.R. 689.

  2. State protection cannot be considered in a vacuum. The RPD must consider many factors, including:
    1. The nature of the human rights violation;            
    2. The profile of the alleged human rights abuser;            
    3. The efforts that the victim took to seek protection from authorities;            
    4. The response of the authorities to requests for their assistance, and            
    5. The available documentary evidence.

    Gonzalez Torres, Luis Felipe v. M.C.I.
     (F.C., no. IMM-1351-09), Zinn, March 1, 2010; 2010 F.C. 234.

  3. In the case of multiple nationalities (citizenship), the claimant is expected to avail him or herself of the protection of all the countries of citizenship. [section 6.1.2.]

    Ward, supra.

  4. The availability of national protection forms part of the analysis of whether the claimant's fear is well founded. [section 6.1.3.]

    Ward, supra.

  5. Two presumptions are at play in refugee determination: (a) if the fear of persecution is credible (legitimate) and there is an absence of state protection, one can presume that persecution will be likely and the fear well founded; (b) absent a complete breakdown of state apparatus, states are presumed to be capable of protecting their citizens. [section 6.1.5.]
  6. The presumption of state protection applies equally to cases where the state is alleged to be the agent of persecution.

    Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I.
    (F.C.A, no. A-182-06; A-185-06). Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171

  7. A refugee who claims that the state protection is inadequate or non-existent bears the evidentiary burden of adducing evidence to that effect and the legal burden of persuading the trier of fact that his or her claim in this respect is founded. The standard of proof applicable is the balance of probabilities. The presumption of state protection is rebutted by clear and convincing evidence. [section 6.1.7.]

    Flores Carrillo: M.C.I. v. Flores Carrillo, Maria del Rosario
    (F.C.A., no. A-225-07), Letourneau, Nadon, Sharlow, March 12, 2008; 2008 FCA 94.

    Ward, supra.

  8. The claimant must approach his or her state for protection, if state protection might reasonably be forthcoming. [section 6.1.8.]

    Ward, supra.

  9. The claimant has the burden of rebutting the presumption of state protection. In order for the presumption to be rebutted, and in order to establish the reasonableness of failing to approach the state, the claimant must present "clear and convincing proof" of the state's inability to protect. [sections 6.1.5. and 6.1.8.]

    Ward, supra.

  10. Simply asserting a subjective belief that state protection is not available is not enough to rebut the presumption. [section 6.1.]

    M.C.I. v. Olah, Bernadett (F.C.T.D., no. IMM-2763-01), McKeown, May 24, 2002; 2002 FCT 595.

  11. It is incorrect to use the criterion of "basis for protection" based on some comparative analysis with other countries as the legal test for state protection. The Board must address the issues of adequate and effective state protection [section 6.1.9.]

    Pilliyan, Ponni v. M.C.I.
    (F.C., no. IMM-5320-03), Phelan, May 28, 2004; 2004 FC 784.

  12. A guarantee of protection for all citizens at all times is not to be expected. Nor is perfect protection. Where a state is in effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens, the mere fact that it is not always successful will not justify a claim that the state is not providing protection. [section 6.1.11.]

    M.E.I. v. Villafranca, Ignacio
    (F.C.A., no. A-69-90), Hugessen, Marceau, Décary, December 18, 1992.

  13. As regards the issue of internal flight alternative in relation to state inability or refusal to provide protection, if state policy restricts a claimant's access to the whole of the state's territory, then the failure to provide local protection can be seen as state failure to provide protection and not mere local failure. [section 6.1.11.]

    Zhuravlvev v. Canada (Minister of Citizenship and Immigration),
    [2000] 4 F.C. 3 (T.D.)

  14. Protection must be from the state, not from non-state sources. The availability of protection from non-state sources may be relevant to the issue of the objective basis for the claim. State-funded agencies are part and parcel of the protection network. [section 6.1.12.]
  15. The more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. However, democracy alone does not guarantee effective state protection and there must be an assessment of the quality of the institutions that provide state protection. [sections 6.1.9. and 6.1.12.]

    M.C.I. v. Kadenko, Ninal
    (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996.

    Katwaru, Shivanand Kumar v. M.C.I.
    (F.C., no. IMM-3368-06), Teitelbaum, June 8, 2007; 2007 FC 612.

  16. Control of the claimant's country may be divided - geographically or otherwise - among several de facto authorities. Protection from any one of these authorities, or from a combination of them, will suffice. [section 6.1.10.

    Zalzali v. Canada (Minister of Employment and Immigration),
    [1991] 3 F.C. 605 (C.A.).

  17. According to paragraph 101 of the UNHCR Handbook, stateless claimants need not avail themselves of state protection since there is no duty on the state to provide protection. The decisions of the Federal Court on this topic are not consistent. [section 6.2.]

Chapter 7

CHANGE OF CIRCUMSTANCES AND COMPELLING REASONS

  1. A change in country conditions is relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant would be persecuted in the event of return there. [section 7.1.]

    Yusuf, Sofia Mohamed v. M.E.I.
    (F.C.A., no. A-130-92), Hugessen, Strayer, Décary, January 9, 1995.

  2. When a panel is weighing changed country conditions together with all the evidence, factors such as durability, effectiveness and substantiality are relevant. The more durable the changes are demonstrated to be, the heavier they will weigh against granting the claim. [section 7.1.1.]

    Penate v. Canada (Minister of Employment and Immigration),
    [1994] 2 F.C. 79 (T.D.).

  3. While recent changes may be sufficient to remove the basis of the claimant's fear of persecution, the Refugee Protection Division should not rely on or give much weight to changes that are short-lived, transitory, inchoate, tentative, inconsequential or otherwise ineffective in substance or implementation. [section 7.1.2.]
  4. These considerations apply equally to cases where there has been a fundamental change in the claimant's personal circumstances, even absent a change in the political situation in the country. [section 7.1.2.]

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

  5. Whether a change of circumstances is sufficient for a fear of persecution to be no longer well founded must be determined in relation to the basis of the particular claim. [section 7.1.2.]

    Rahman, Faizur v. M.E.I.
    (F.C.A., no. A-1244-91), Marceau, Desjardins, Létourneau, May 14, 1993.

  6. If a change in circumstances is to be relied on, the issue must be raised or notice must be given to the claimant but it is sufficient if "objective basis" is identified as an issue. [section 7.1.4.]
  7. There is no obligation on the Refugee Protection Division to consider post-hearing evidence relating to changes in country conditions unless that evidence has been accepted by the panel before the panel renders a final decision on the claim. The Refugee Protection Division may, on its own motion, provide additional documents and reconvene a hearing into a claim that has not been concluded with a final decision to hear evidence relating to changes in country conditions. [section 7.1.5.]
  8. The issue of compelling reasons, the exception found in section 108(4) of IRPA (section 2(3) of the former Immigration Act) applies only where the claimant had a well-founded fear of persecution when he or she left his or her country of nationality and the reasons for the fear of persecution have ceased to exist. The RPD is not required to consider whether past persecution constitutes compelling reasons where it determines that the claimant was not a Convention refugee at the time of departure from the country of nationality. The jurisprudence that developed with respect to section 2(3) of the Immigration Act may be used as guidance in the interpretation of section 108(4) of the IRPA. In applying sections 96 and 97 of the Immigration and Refugee Protection Act, the compelling reasons exception only applies when there has been a determination that the person was a Convention refugee or a person in need of protection, and also that the conditions that led to that finding no longer exist. However, for section 108(4) to apply, there is no requirement that refugee protection has actually been conferred. [section 7.2.1.]

    Cihal, Pavla v. M.C.I.
    (F.C.A., no. A-54-97), Stone, Evans, Malone, May 4, 2000.

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

  9. In every case in which the RPD concludes that a claimant has suffered past persecution, but there has been a change of country conditions under section 108(1)(e) of IRPA (section 2(2)(e) of the Immigration Act), the RPD is obligated to consider whether the evidence presented establishes that there are "compelling reasons". This obligation arises whether or not the claimant expressly invokes the exception. The evidentiary burden rests on the claimant to adduce the necessary evidence to establish entitlement to the benefit of the "compelling reasons" provision. It follows that where the RPD does not find that the claimant has suffered past persecution, or finds the claimant's factual evidence not credible, or finds the claimant would have had an internal flight alternative (IFA), the compelling reasons exception does not apply and the RPD is under no obligation to consider the issue. [section 7.2.2].

    M.C.I. v. Yamba, Yamba Odette Wa
    (F.C.A., no. A-686-98), Isaac, Robertson, Sexton, April, 6, 2000.

    Brovina, Qefsere v. M.C.I.
    (F.C., no. IMM-2427-03), Layden-Stevenson, April 29, 2004; 2004 FC 635.

  10. A claimant will be entitled to Convention refugee status based on compelling reasons if he or she has suffered such appalling past persecution that their experience alone is compelling reason not to return the claimant, even though he or she may not have any reason to fear further persecution. [section 7.2.3.]

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

  11. The case law indicates that the threshold necessary to demonstrate "compelling reasons" is a high one. According to one line of authority, to establish compelling reasons, the claimant must have suffered from "atrocious" or "appalling" acts of persecution. Some Federal Court cases hold that Obstoj did not establish a test that requires the persecution to reach that level According to Suleiman, the issue is whether, considering the totality of the situation, i.e., humanitarian grounds, unusual or exceptional circumstances, it would be wrong to reject the claim in the wake of a change of circumstances. [section 7.2.3.]
  12. Evidence of continuing psychological after-effects is relevant to a determination of the issue but is not a separate requirement that has to be met. There is conflicting case law from the Federal Court as to whether persecution of a family member can of itself be sufficient to constitute compelling reasons. [sections 7.2.6 and 7.2.7.]
  13. Past acts of torture and extreme acts of mental abuse, alone, in view of their gravity and seriousness, can be considered "compelling reasons' despite the fact that these acts have occurred many years before. [section 7.2.5.]

    Suleiman v. Canada (Minister of Citizenship and Immigration),
    [2005] 2 F.C.R. 26; 2004 FC 1125.

  14. A claimant may be a Convention refugee as a consequence of events which have occurred in his or her country of origin since his or her departure or as a result of activities of the claimant since leaving his or her country. In these circumstances, the claimant is said to have a sur place claim. [section 7.3.]
  15. A key issue in sur place claims is whether such actions have come to the attention of the authorities of the claimant's country of origin and how they are likely to be viewed by those authorities. While it is relevant to examine the motives underlying a claimant's participation in activities against his government in Canada in order to determine the claimant's subjective fear, it would be an error for the RPD to stop the analysis there as it is also necessary to examine whether or not the fear has an objective basis. Even if the motives are not genuine, the consequential imputation of religious or political beliefs to the claimant by the authorities of their country may be sufficient to bring the claimant within the scope of the Convention refugee definition. [section 7.3.1.]

    Asfaw, Napoleon v. M.C.I.
    (F.C.T.D., no. IMM-5552-99), Hugessen, July 18, 2000.

    Ejtehadian, Mostafa v. M.C.I.
    (F.C., no. IMM-2930-06), Blanchard, February 12, 2007; 2007 FC 158.

  16. Evidence of political activities in Canada should be considered by the panel whether or not the claimant specifically raises a sur place claim. [section 7.3.1.]

Chapter 8

INTERNAL FLIGHT ALTERNATIVE (IFA)

  1. IFA arises when a claimant who has a well-founded fear of persecution in his or her home area of the country is not a Convention refugee because he or she has an internal flight alternative elsewhere in that country. [section 8.1.]

    Rasaratnam v. Canada (Minister of Employment and Immigration),
    [1992] 1 F.C. 706 (C.A.).

  2. The test to be applied in determining whether there is an IFA is two-pronged:
    1. "…the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists."
    2. Conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstnaces, including those particular to the claimant, for him to seek refuge there. [section 8.1.]

    Rasaratnam, supra.

  3. The second prong of the IFA test may be stated as follows: would it be unduly harsh to expect the claimant to move to another, less hostile part of the country before seeking refugee status abroad? Thirunavukkarasu sets a very high threshold for the "unreasonable test". The hardship associated with dislocation and relocation is not the kind of undue hardship that renders an IFA unreasonable. There is a distinction between the reasonableness of an IFA and humanitarian and compassionate considerations. A psychological or medical report may constitute objective evidence that it would be unduly harsh to expect an applicant to move to another part of the country. Failure of the Board to at least mention the medical report in its reasons constitutes a serious error. [section 8.2. and 8.5.2.]

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

    Ranganathan v. Canada (Minister of Citizenship and Immigration),
    [2001] 2 F.C. 164 (C.A.).

    Ahmed, Mohammed Ali v. M.C.I.
    (F.C., no. IMM-2894-06), Pinard, December 20, 2006.

  4. The claimant cannot be required to encounter great physical danger or undergo undue hardship in travelling to the IFA or staying there. [section 8.2.] Nor is a claimant required to personally test the viability of an IFA before seeking protection in Canada. [section 8.5.2.]
  5. To satisfy the notice requirement, the issue of IFA must be raised by the RPO, the panel or the Minister before or during the hearing. Once the issue is raised, the onus is on the claimant to show that he or she does not have an IFA. [section 8.3.]
  6. There is some debate as to whether a specific location or region must be identified as the potention IFA, but a number of cases seem to indicate that it is not an error not to specify specific locations. [section 8.3.]

Chapter 9

PARTICULAR SITUATIONS

I. Civil war

  1. The claimant is not barred from being considered a Convention refugee by the mere fact that the circumstances which he or she relies upon derive from, or are related to, a civil war. Equally, the mere fact that a civil war is underway in the claimant's country of origin, or that the claimant has a fear related to the civil war, is not sufficient to make the claimant a Convention refugee. [section 9.2.]

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

    IRB Chairperson's Guidelines,
    "Civilian Non-Combatants Fearing Persecution in Civil War Situations",
    March 7, 1996 (as continued under s. 159(1)(h) of IRPA).

  2. Refugee claimants must establish a link between themselves and persecution for a Convention reason; they must be targeted for persecution in some way, either personally or collectively. [section 9.2.]

    Rizkallah, Bader Fouad v. M.E.I.
    (F.C.A., no. A-606-90), Marceau, MacGuigan, Desjardins, May 6, 1992.

  3. The issue is not a comparison between the claimant's risk and the risk faced by other individuals or groups at risk for a Convention reason, but whether the claimant's risk is a risk of sufficiently serious harm and is linked to a Convention reason as opposed to the general, indiscriminate consequences of civil war. If one of the warring parties singles out a person or group of persons for reasons of race, political opinion or one of the other elements enumerated in the refugee definition and subjects the person or group to serious human rights violations, this clearly constitutes persecution. [section 9.2.1.2.]

    IRB Chairperson's Guidelines,
    "Civilian Non-Combatants Fearing Persecution in Civil War Situations",
    March 7, 1996; (as continued under s. 159(1)(h) of IRPA.

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

    Fi, Saleh Omar Osama v. M.C.I.
    (F.C., no. IMM-2091-06), Martineau, September 19, 2006; 2006 FC 1125.

II. Persecution vs. prosecution

  1. The issue is to distinguish between a situation where a claimant has violated a law of general application and what he or she fears is prosecution and punishment for that violation and a situation where the violation relates to a law which is persecutory in either its application or its punishment. [section 9.3.1.]
  2. As to whether there would be a nexus between application of the law to the claimant and a Convention ground, the following propositions are relevant:
    1. A presumption of neutrality attaches to any law of general application. The onus is on the claimant to show that there is adverse differentiation.
    2. The law may be inherently non-neutral. The neutrality of the law is to be judged objectively.
    3. It is the intent and any principal effect of the law of general application which must be considered, not the claimant's motivation. If either the intent or a principal effect is to harm the rights of some person or category, then the law is not neutral. [section 9.3.2.]

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

  3. Regarding the seriousness of harm, the following must be considered:
    1. Is the penalty disproportionate to either the objective of the law or the offence?
    2. The means by which the law is enforced. "Brutality in furtherance of a legitimate end is still brutality."
    3. Is the prosecution and enforcement of the law within legal bounds? (section 9.3.2.)

    Cheung v. Canada (Minister of Employment and Immigration),
    [1993] 2 F.C. 314 (C.A.);

    Chan, (dissenting opinion), supra.

  4. Certain emergency situations such as those which threaten national security or terrorism, may allow states to institute measures which, while violative of certain civil rights, may not amount to persecution. However, certain types of violations such as beatings and torture of suspects or other brutal treatment will more appropriately be termed persecution. (section 9.3.3.)

    Cheung, supra;

    Thirunavukkarasu, supra.

III. Exit laws

  1. A person who, having been subjected to no persecution in the past, violates an exit law applicable to all citizens and thereby exposes him or herself to punishment for the violation, is not a Convention refugee. [section 9.3.5.]

    Valentin v. Canada (Minister of Employment and Immigration),
    [1991] 3 F.C. 390 (C.A.).

  2. Repercussions beyond the statutory sentence may suggest that the actions of the authorities are persecutory. [section 9.3.5.]

IV. Military service

  1. It is not persecution for a country to have compulsory military service. [section 9.3.6.]

    Popov, Leonid Anatolievich v. M.E.I.
    (F.C.T.D., no. IMM-2567-93), Reed, April 11, 1994.

  2. An aversion to military service or a fear of combat is not in itself sufficient to support a well-founded fear of persecution. [section 9.3.6.]

    Garcia, Marvin Balmory Salvador v. S.S.C.
    (F.C.T.D., no. IMM-2521-93), Pinard, February 4, 1994.

  3. The Zolfagharkhani principles relating to laws of general application (noted above) apply to military-service situations. [sections 9.3.2. and 9.3.6].

    Zolfagharkhani, supra.

  4. Where the claimant invokes reasons of conscience for objecting to military service, it is necessary to determine whether the particular reasons are genuine and of sufficient significance. [section 9.3.6.]
  5. A recent decision of the Federal Court of Appeal puts into question whether conscientious objection to military service can ever be considered to be a ground for claiming Convention refugee status, however, the judgment is a brief answer to a certified question without any analysis.

    Ates, Erkan v. M.C.I.
    (F.C.A., no. A-592-04), Linden, Nadon, Sharlow, October 5, 2005; 2005 FCA 322.

  6. A claimant may object to serving in a particular conflict, or to the use of a particular category of weapon, rather than objecting to military service altogether, and may be found to be a Convention refugee if the military actions objected to are judged by the international community to be contrary to basic rules of human conduct. It is appropriate to consider paragraph 171 of the UNHCR Handbook to determine whether the war being waged is contrary to basic rules of human conduct. [section 9.3.6.]

    Zolfagharkhani, supra;

    Ciric v. Canada (Minister of Employment and Immigration),
    [1994] 2 F.C. 65 (T.D.).

    Hinzman, Jeremy v. M.C.I.
    (F.C., no. IMM-2168-05), Mactavish, March 31, 2006; 2006 FC 420.

  7. In determining whether the claimant would face serious harm for failing to serve in the military, one must consider whether the claimant might be able to perform alternative service or obtain an exemption from service. One must also consider the harshness of the actual penalty for refusing to serve. It is important to consider whether the claimant has pursued opportunities to obtain state protection in his or her country before asking for international protection. [section 9.3.6.]

    Hinzman and Hughey, Brandon David v. M.C.I.
    (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171.

V. One-child policy

  1. Forced or strongly coerced sterilization constitutes persecution, whether the victim is a woman or a man. Forced abortion also constitutes persecution. [section 9.3.7.]

    Cheung, supra;

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

  2. The applicable Convention grounds, depending on the circumstances of the case, may be membership in a particular social group, religion and/or political opinion. [sections 4.4., 4.5., 4.6. and 9.3.7.]

    Cheung, supra;

    Chan (SCC, dissenting opinion), supra.

VI. Religious or cultural mores

  1. Restrictions upon women. [section 9.3.8.1.]
    1. Restrictions imposed upon the dress and conduct of women may, in certain circumstances, constitute persecution. The breach of those restrictions may be perceived as political opinion but a claim may also be based on membership in a particular social group.
    2. Examples of gender-based persecution (based on religious or cultural mores) include female circumcision and being forced into a marriage.
  2. Ahmadis from Pakistan. [section 9.3.8.2.]

    There is case law which says that the mere existence of the laws targeting Ahmadis does not give an Ahmadi claimant good grounds for fearing persecution; however, the point is not altogether free from doubt. Some of the factors that have been considered by the Courts are whether the claimant engaged or is likely to engage in any of the prohibited activities and the likelihood that the law will actually be enforced.

VII. Indirect Persecution and Family Unity

  1. Indirect persecution (a concept premised on the assumption that family members are likely to suffer great harm, such as loss of the victim's economic or social support, when their close relative is persecuted) does not constitute persecution within the definition of Convention refugee. For a claim to be successful there must be a personal nexus between the alleged persecution and a Convention ground. In certain circumstances the nexus will be membership in the particular social group "family". [section 9.4.]

    Pour-Shariati, Dolat v. M.E.I.
    (F.C.A., no. A-721-94), MacGuigan, Robertson, McDonald, June 10, 1997.

  2. The concept of "family unity" (included in the UNHCR Handbook) has been rejected in Canadian law. This concept holds that if the directly-affected person meets the criteria in the definition, then family members may be recognized as Convention refugees even if they do not meet individually the definition's criteria. [section 9.4.]

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


Chapter 10

EXCLUSION CLAUSES - ARTICLE 1E

I. Article 1E

  1. The Convention refugee definition does not apply to a person who is recognized by the authorities of a country in which he or she has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. Under section 98 of the Immigration and Refugee Protection Act, a person who is found to be excluded by Article 1E 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. [section 10.1.]

    Article 1 E of the Convention Relating to the Status of Refugees,

    Schedule to the Immigration and Refugee Protection Act (formerly the Immigration Act)

    M.C.I. v. Sartaj, Asif
    (F.C., no. IMM-1998-05), O'Keefe, March 14, 2006; 2006 FC 324.

  2. At a minimum, the claimant must be able to return to and remain in the putative Article 1E country before he or she may be excluded from the Convention refugee definition. [section 10.1.1.]

    M.C.I. v. Mahdi, Roon Abdikarim
    (F.C.A., no. A-632-94), Pratte, MacGuigan, Robertson, December 1, 1995.

  3. The test to be applied in Article 1E determinations is: considering all relevant factors to the date of the hearing:
    1. Does the claimant have status, substantially similar to that of its nationales, in the third country? If the answer is yes, the claimant is excluded.
    2. If the answer is no, did 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.
    3. If the answer is yes, various factors must be considered and balanced, including (but not limited to),
      1. the reasons for the loss of status (voluntary or not),
      2. whether the claimant can return to the third country,
      3. the risk the claimant would face in the home country,
      4. Canada's international obligations,
      5. Any other relevant factors. [section 10.1.1.]

    M.C.I. v. Zeng, Guanqiu
    (F.C.A., no. A-275-09), Noël, Layden-Stevenson, Stratas, May 10, 2010; 2010 FCA 118.

  4. If the claimant's status in the third country is tentative, Article 1E does not apply. [section 10.1.2.]
  5. If the status in the third country is renewable, there is an onus on the claimant to renew it, if it is renewable. The claimant must demonstrate why:
    • their travel document cannot be renewed;
    • their (destroyed or lost) residency card cannot be re-issued;
    • a re-entry visa cannot be obtained;
    • their residency status cannot be renewed. [section 10.1.3.]
  6. In determining whether the claimant enjoys the rights and obligations of a national, the following criteria are useful:
    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. [section 1.1.4.]
  7. It would appear that determinations under Article 1E do not necessarily involve the strict consideration of all factors regarding residency, as the analysis depends on the particular nature of the case at hand and the rights which normally accrue to citizens in the country of residence. A person need not possess rights that are identical in every respect to those of a national of the country. [section 10.1.4.]

    Juzbasevs, Rafaels v. M.C.I.
    (F.C.T.D., no. IMM-3415-00), McKeown March 30, 2001;

    Hamdan, Kadhom Abdul Hu v. M.C.I.
    (F.C.T.D., no. IMM-1346-96), Jerome, March 27, 1997.

  8. The case law seems to suggest that the RPD can consider whether the claimant has a well-founded fear of persecution for a Convention reason in the Article 1E country. This would include an assessment of the availability of state protection in that country. Before the RPD considers the issue of state protection with respect to a country other than the claimant's country of nationality, the panel should make clear it is considering a potential exclusion under Article 1E. The decisions of the Federal Court on this topic are not consistent. [section 10.1.5.]

    Kroon, Victor v. M.E.I.
    (F.C.T.D., no. IMM-3161-93), MacKay, January 6, 1995.

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


Chapter 11

EXCLUSION CLAUSES - ARTICLE 1F

II. Article 1F

  1. If there are "serious reasons for considering" that a claimant has committed an Article 1F crime (crime against peace, war crime, crime against humanity, serious non-political crime, act contrary to the purposes and principles of the United Nations), he or she is excluded from the Convention refugee definition.

    Article 1 F of the Convention Relating to the Status of Refugees,

    Schedule to the Immigration and Refugee Protection Act (formerly the Immigration Act)

    Article 1F(a)

  2. Article 1F(a) must be interpreted by reference to the international instruments that deal with these crimes, including the Charter of the International Military Tribunal and other international instruments concluded since its adoption. This would include the Statute of the International Tribunal for Rwanda and the Statute of the International Tribunal for the Former Yugoslavia as well as the Rome Statute of the International Criminal Court. The definitions in the Rome Statute can be applied retroactively to determine whether particular acts constituted war crimes or crimes against humanity if they were committed before the Rome Statute was part of international law.[section 11.2.]

    Harb, Shahir v. M.C.I.
    (F.C.A., no. A-309-02), Decary, Noël, Pelletier, January 27, 2003: 2003 FCA 39.

    Bonilla, Mauricio Cervera v. M.C.I.
    (F.C., no. IMM-2795-08), O'Keefe, September 9, 2009; 2009 FC 881.

  3. For a crime to be a crime against humanity, it must be committed in a widespread, systematic fashion either during a civil or international war or in times of peace. (section 11.2.3.)

    Sivakumar v. Canada (Minister of Employment and Immigration),
    [1994] 1 F.C. 433 (C.A.).

  4. A criminal act rises to the level of a crime against humanity where the following four elements are made out:
    1. An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act);
    2. The act was committed as part of a widespread or systematic attack;
    3. The attack was directed against any civilian population or any identifiable group of persons; and
    4. The person committing the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of the attack. [section 11.2.3.]

    Mugesera v. Canada (Minister of Citizenship and Immigration),
    [2005] 2 S.C.R. 100; 2005 SCC 40.

  5. There may be circumstances where a claimant will invoke successfully certain defences, such as duress and superior orders, which absolve him or her from responsibility and thus the claimant will not be excluded from refugee status. [section 11.2.5.]
  6. Where a claimant has not in a "physical" sense committed an Article 1F(a) crime, he or she may be held responsible for the crime as an accomplice and thus be subject to being excluded. In order to find the claimant complicit, the CRDD must determine that the claimant had "personal and knowing participation". [section 11.2.6.]

    Ramirez, supra.

  7. When determining the culpability of a claimant who has had prior association with a group responsible for excludable crimes, regard should be had to the following factors:
    • method of recruitment
    • nature of the organization
    • the claimant's rank
    • knowledge of atrocities
    • opportunity to leave the organization
    • period of time spent in the organization
  8. Mere membership in an organization principally directed to a limited brutal purpose does not automatically result in exclusion; the CRDD must first determine whether the claimant had knowledge of the crimes being committed by the members of the organization. [section 11.2.6.1.] Membership creates a rebuttable presumption.

    Ramirez, supra;

    Saridag, Ahmet v. M.E.I.
    (F.C.T.D., no. IMM-5691-93), McKeown, October 5, 1994.

    Article 1F(b)

  9. To determine whether a crime is "serious", there must be an evaluation of the following factors:
    • the elements of the crime,
    • the mode of prosecution, (summary or indictment)
    • the penalty prescribed, and
    • the facts, and
    • the mitigating and aggravating circumstances underlying the conviction. [section 11.3.1.]

    Jayasekara v. Canada (Minister of Citizenship and Immigration)
    [2009] 4 F.C.R. 164 (F.C.A.); 2008 FCA 404

  10. While a sentence of 10 years or more creates a presumption of seriousness, the presumption is rebuttable. [section 11.3.1.].

    Jayasekara v. Canada (Minister of Citizenship and Immigration)
    [2009] 4 F.C.R. 164 (F.C.A.); 2008 FCA 404

  11. A claimant can be excluded under Article 1 F(b) for purely economic crimes. [section 11.3.1.]

    Xie, supra.

    Lai, Cheong Sing v. M.C.I.
    (F.C.A., no. A-191-04), Malone , Richard, Sharlow, April 11, 2005; 2005 FCA 125

  12. Article 1F(b) is not limited only to fugitives from justice. [section 11.3.1.].

    Jayasekara v. Canada (Minister of Citizenship and Immigration)
    [2009] 4 F.C.R. 164 (F.C.A.); 2008 FCA 404

  13. In order for a crime to be characterized as "political", thus falling outside the ambit of Article 1F(b) (serious non-political crimes), both aspects of a two-pronged test must be satisfied:
    1. the existence of a political disturbance related to a struggle to modify or abolish a government or government policy;
    2. a rational nexus between the crime committed and the accomplishment of the political objective sought. [section 10.3.2.]

    Gil v. Canada (Minister of Employment and Immigration),
    [1995] 1 F.C. 508 (C.A.).

  14. A very serious crime may be accepted as "political" if the regime against which it is committed is repressive and offers no scope for freedom of expression and the peaceful change of government or government policy. [section 10.3.2.]

    Gil, supra.

  15. The principles of complicity by association laid down in Sivakumar and Bazargan may be applied to Article 1F(b). [section 10.3.3.]

    Zrig, supra.

    Article 1F(c)

  16. The purpose of Article 1 F(c) is to exclude those individuals responsible for serious, sustained or systematic violations of fundamental human rights which amount to persecution in a non-war situation. [section 10.4.]

    Pushpanathan v. Canada (Minister of Citizenship and Immigration),
    [1998] 1 S.C.R. 982.

  17. The guiding principle is that where there is consensus in international law that particular acts constitute sufficiently serious and sustained violations of fundamental human rights as to amount to persecution, or are explicitly recognized as contrary to the purposes and principles of the United Nations, then Article 1 F(c) will be applicable. [section 10.4.]

    Pushpanathan, supra.

  18. Two categories of acts fall within Article 1 F(c):
    1. where a widely accepted international agreement or United Nations resolution declares that the commission of certain acts is contrary to the purposes and principles of the United Nations;
    2. those acts which a court is able, for itself, to characterize as serious, sustained and systematic violations of fundamental human rights constituting persecution. [section 10.4.]

    Pushpanathan, supra.

  19. The application of Article 1F(c) is not limited to persons in power. Non-state actors may fall within the provision. [section 10.4.]

    Pushpanathan, supra.

    Burden of Proof

  20. The burden of establishing that exclusion applies to a claimant falls on the government. However, since the RPD has sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, non-participation of the Minister does not preclude an exclusion finding. It is an error to restrict the Minister to question the claimant on matters dealing only with exclusion since section 170(e) of IRPA states that the Minister, as well as the claimant, must be given a reasonable opportunity to present evidence and question witnesses.[section 11.5.]

    Arica, Jose Domingo Malaga v. M.E.I.
    (F.C.A., no. A-153-92), Stone, Robertson, McDonald, May 3, 1995.

    Atabaki: M.C.I. v. Atabaki, Roozbeh Kianpour
    (F.C., no. IMM-1669-07, Lemieux, November 13, 2007; 2007 FC 1170.

    Standard of Proof

  21. "Serious reasons for considering" has been interpreted as being "less than the balance of probabilities". In other words, there must be more than mere suspicion or conjecture, but something less than the balance of probabilities. [section 11.5.]

    Sivakumar v. Canada (Minister of Employment and Immigration)
    [1994] 1 F.C. 433 (C.A.)

    Balancing

  22. There is no requirement to balance the nature of the Article 1F crime with the degree of persecution feared. In fact, in Xie, the Federal Court of Appeal held that the RPD is neither required nor allowed to balance the claimant's crimes against the risk of torture. The Court held that having found first that the claimant fell within the exclusion clauses, specifically Article 1F(b), the RPD exceeded its mandate when it went on to consider whether the claimant was at risk of torture. [sections 11.2.4.; 11.3.5.; and 11.4.1.]

    M.C.I. v. Malouf, François
    (F.C.A., no. A-19-95), Hugessen, Décary, Robertson, November 9, 1995.

    Xie v.Canada (Minister of Citizenship and Immigration),
    [2005] 1 F.C.R. 304; 2004 FCA 250.