I. Assessing the Harm Feared
It is necessary to assess the particular circumstances which have given rise to the claimant's fear of persecution. Does the harm feared constitute "persecution" within the definition of Convention refugee?
A person taking no active part in the hostilities associated with a civil war should be treated by the combatants humanely without adverse distinction.Note 4 Her human rights must be respected. If the combatants treat the person in a manner that is contrary to these principles, such treatment can, depending on the claimant's particular circumstances, constitute persecutory treatment. When one is determining whether the case is one of "persecution", the question to be addressed is whether there are violations of human rights of sufficient degree and importance to constitute persecution.Note 5 The fact that the treatment feared by the claimant arises from the hostility felt, or the violence engaged in, by combatants directly involved in the civil war does not exclude the possibility that it could constitute persecution.
International instruments are not binding on the Refugee Division unless they are incorporated into Canadian law.Note 6 However, even if a particular instrument has not been so incorporated, the principles enunciated in the instrument may assist in the application of the definition of Convention refugee. Also, the standards set out in an instrument may assist the Refugee Division in determining permissible conduct even if the instrument is not binding upon the parties to the conflict. By defining permissible conduct, the instruments may assist the Refugee Division in assessing whether or not the treatment constitutes persecution as that term is understood in Canadian case law.
Accordingly, in determining what are the fundamental human rights that must be considered in assessing persecution within the context of civil war, reference should be made to international human rights instruments which provide a framework of international standards for recognizing the protection needs of individuals. Such international human rights instruments include, but are not limited to:
- Universal Declaration of Human Rights
- International Covenant on Civil and Political Rights
- International Covenant on Economic, Social and Cultural Rights
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
In addition, international instruments exist that relate to the protection of civilians in time of war. These instruments should be considered as they may assist the Refugee Division in determining what constitutes permissible conduct by combatants toward non-combatants, and they may therefore assist the Refugee Division in determining whether the conduct constitutes persecution. These instruments include, but are not limited to:
- Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (the "1949 Convention")
- Protocol II to the 1949 Convention ("Protocol II")
Article 3 of the 1949 Convention prohibits in relation to non-combatants certain acts including:
- violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
- taking of hostages;
- outrages upon personal dignity, in particular humiliating and degrading treatment.
Article 4 of Protocol II prohibits in relation to non-combatants certain acts including:
- violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
- collective punishments;
- taking of hostages;
- acts of terrorism;
- outrages on the personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.
Article 13 of Protocol II provides that the "civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations." To give effect to this protection, certain rules, including the following are to be observed:
- the civilian population, as well as individual civilians, shall not be the object of attack;
- acts or threats of violence the primary purpose of which is to spread terror among the civil population are prohibited.
Excerpts from the above two instruments accompany these Guidelines.Note 7
II. Determining Whether Persecution is Based on a Convention Ground
General principles - Federal Court of Appeal
The determination of whether there is a link between the persecution experienced or feared by the claimant, or her group, and the grounds for persecution found in the definition, has generally proved to be the most difficult aspect of applying the definition in claims arising from civil war.Note 8 In considering this issue, it is useful to commence the analysis by reference to the two leading decisions of the Federal Court of Appeal. The first of these is Salibian v. M.E.I.,Note 9 which at p. 258 sets out four general principles:
It can be said in light of earlier decisions by this Court on claims to Convention refugee status that
- the applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future;
- the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged;
- a situation of civil war in a given country is not an obstacle to a claim provided the fear felt is not that felt indiscriminately by all citizens as a consequence of the civil war, but that felt by the applicant himself, by a group with which he is associated, or, even, by all citizens on account of a risk of persecution based on one of the reasons stated in the definition; and
- the fear felt is that of a reasonable possibility that the applicant will be persecuted if he returns to his country of origin [emphasis added]
The Court goes on to adopt the following statement by Professor Hathaway:Note 10
In sum, while modern refugee law is concerned to recognize the protection needs of particular claimants, the best evidence that an individual faces a serious chance of persecution is usually the treatment afforded similarly situated persons in the country of origin. In the context of claims derived from situations of generalized oppression, therefore, the issue is not whether the claimant is more at risk than anyone else in her country, but rather whether the broadly based harassment or abuse is sufficiently serious to substantiate a claim to refugee status. If persons like the applicant may face serious harm for which the state is accountable, and if that risk is grounded in their civil or political status, then she is properly considered to be a Convention refugee. [emphasis added]
The second case is the very brief decision in Rizkallah v. M.E.I.,Note 11 where the Court of Appeal held that:
To succeed, refugee claimants must establish a link between themselves and persecution for a Convention reason. In other words, they must be targeted for persecution in some way, either personally or collectively.
the evidence, as presented to us, falls short of establishing that Christians in the claimant's Lebanese village were collectively targeted in some way different from the general victims of the tragic and many-sided civil war. [emphasis added]
The third general principle set out in Salibian was commented upon by the Court of Appeal in Hersi, Nur Dirie v. M.E.I.,Note 12 when the Court, on consent, held that the Refugee Division erred "in holding that refugee claimants must be able to show they are at some greater differential risk than other members of their group", a conclusion which the Court found to be at odds with its decision in Salibian.
Approaches to Analysis of Civil War Claims
The case law emanating from the Trial Division of the Federal Court seems to suggest that the Trial Division has taken two different approaches to civil war claims. The differences pertain to the question whether there is a nexus between the harm feared and one of the Convention grounds, and to the application of Salibian and Rizkallah.
The non-comparative approach to the assessment of a claim is the approach advocated in these Guidelines. This approach is more in accord with the third principle set out in Salibian, the decisions of the Court of Appeal in Rizkallah and Hersi, Nur Dirie, as well as the wording of the Convention refugee definition.Note 13 With this approach, instead of an emphasis on comparing the level of risk of persecution between the claimant and other individuals (including individuals in the claimant's own group) or other groups, the Court examines the claimant's particular situation, and that of her group, in a manner similar to any other claim for Convention refugee status.
The issue is not a comparison between the claimant's risk and the risk faced by other individuals or groups at risk for a Convention reason, but whether the claimant's risk is a risk of sufficiently serious harm and is linked to a Convention reason as opposed to the general, indiscriminate consequences of civil war.Note 14 A claimant should not be labelled as a "general victim" of civil war without full analysis of her personal circumstances and that of any group to which she may belong. Using a non-comparative approach results in a focusing of attention on whether the claimant's fear of persecution is by reason of a Convention ground.
The other approach to assessment of the claim is comparative. This approach considers whether the claimant, or her group, is at a "differential risk" when compared to other individuals or groups in the country of origin.Note 15 This approach appears to involve a consideration of the predicament faced by the claimant, or her group, as compared with the circumstances of other persons in her country of origin who face harm from the same or other agents of persecution. In other words, is the claimant's, or her group's, predicament worse or different than the predicaments of others in her country of origin?Note 16
The clearest adoption of the comparative approach has been in Isa v. S.S.C.Note 17
These Guidelines advocate the use of the non-comparative approach, as this approach promotes the case law in Salibian, Rizkallah and Hersi, Nur Dirie. The Guidelines do not recommend the use of any form of "differential risk" analysis. It can lead to the use of a comparative approach, where the requirement that the claimant, or her group, be exposed to hardship which is greater than the hardship of others in the country of origin, may be difficult to reconcile with certain passages in Salibian, Rizkallah and Hersi, Nur Dirie. In addition, the comparative approach may be difficult to reconcile with the Convention refugee definition.
Application of the Non-Comparative Approach: Relevant Principles
To succeed, refugee claimants must establish a link between themselves and persecution on a Convention ground. In other words, they must be targeted for persecution in some way, either personally or collectively.Note 18 Inasmuch as persecutory measures are often directed at groups rather than individuals, the claimant need not be personally identified ("singled out") or targeted for persecution in order to be determined a Convention refugee.Note 19
Where the persecution which has occurred, or the possibility of persecution in the future, is directed at the claimant's group as a whole rather than each individual member of the group, it is the fact of membership in the group which provides the foundation for the fear. Where the targeting is due to the possession of a certain characteristic related to a Convention ground, then all those who possess the characteristic may be at risk of harm by reason of their possession of that characteristic.Note 20 In such a case, the linkage to a Convention ground is not negated by the fact that the persecutor does not "discriminate" between one possessor of the characteristic and another possessor of the same characteristic. What is important is that the group is targeted, or there is a reasonable possibility of targeting of the claimant or the group in the future. Moreover, the number of persons in the group is irrelevant.
Targeting should be considered from the perspective of the agent of persecution, i.e. the intention of the agent of persecution must be examined. The Supreme Court of Canada has clarified that the examination of the circumstances of a case, including the intention of the agent of persecution, should be approached from the perspective of the agent of persecution, since it is this perspective that is "determinative in inciting the persecution."Note 21
Where the intention of the agent of persecution to target a claimant, or her group, is clear from the evidence, it will be a straightforward matter to determine whether there is a link to one of the Convention grounds. Where the intention is not clear on the particular facts of the case, the link to a Convention ground may be inferred from the effect that the actions of the agent of persecution have on the claimant or her group.
A civilian non-combatant should not be fixed with a share of "collective guilt" because combatant members of the claimant's group are inflicting harm on members of other groups.Note 22 Such actions should not disqualify a claimant from refugee status if she otherwise fulfils the definition. As noted in Isa, there should be a recognition that civil wars are often waged for reasons found in the Convention grounds. In applying Salibian and Rizkallah, the Guidelines recommend that a decision-maker should exercise caution before determining that a linkage to a Convention ground does not exist in such a case. The fact that all persons on either side of the conflict may come within the definition, should not disqualify a claimant where that claimant has a well-founded fear of persecution based on a Convention ground.
In considering whether a linkage to a Convention ground exists, it is useful for decision-makers to reflect on the following comments made by Dr. Joachim Henkel, Judge, German Federal Administrative Court with respect to the "general consequences" of civil war.Note 23
The general rule that the Geneva Refugee Convention does not provide protection against the general consequences of civil war is correct, but is often applied too broadly. Certainly, the danger of being caught up in the fighting and thus losing ones life more or less by accident is a general consequence of civil war. Furthermore, the danger of loosing [sic] a limb by treading on a land mine is a general consequence of civil war. Lack of food and water, lack of electricity and heating, lack of medical treatment and many other sufferings are general consequences of civil war. But, in my view, it amounts to persecution if one of the waring [sic] parties as part of its strategy subjects the femal[e] members of the enemy community to wide-spread rape; if the waring [sic] parties resort to the practice of "ethnic-cleansing"; if the waring [sic] parties detain all male members of the enemy community in concentration camps in which they are abused and ill-treated; if one of the waring [sic] parties after having captured a city takes to killing even civilian members of the enemy community. Even though such atrocities may be common in today's civil wars they clearly are directed against persons as individuals; they are not just the unavoidable more or less anonymous consequences of a war. Thus, if one of the waring [sic] parties singles out a person or a group of persons for reasons of race, political opinion or one of the other elements enumerated in the refugee definition and subjects it to serious human rights violations this clearly constitutes persecution...
Categories of Claims Encountered
In considering the issue of whether the persecution feared is based on a Convention ground, it is beneficial to highlight the types of claims seen in the civil war context. Claims arising within civil war situations may be divided into three broad categories:
- Fear of persecution in a generalized civil war:
- Individualized harm that is distinguishable from the general dangers of civil war.
- Group-based harm that is distinguishable from the general dangers of civil war.
- Harm that is not distinguishable from the general dangers of civil war.
- Fear of persecution arising from a civil war specifically directed against a group with which the claimant is affiliated.
- Fear of persecution from circumstances unrelated to the civil war.
These categories have been identified as they delineate factual situations within which we find the majority of civil war claims. When such claims are considered within these categories, the linkage between the harm feared and the Convention grounds is more readily discernible. The examples set out below are not meant to be exhaustive of the situations that might come within a particular category.
1. Fear of persecution in a generalized civil war.
A) Individualized harm that is distinguishable from the general dangers of civil war:
Certain individuals, although not taking any part in the hostilities, may nevertheless face a reasonable chance of persecutionNote 24 because of their civil or political status, or due to a status which is imputed to them by combatants in the civil war. For example:
- persons facing persecution for refusing to join either side in the armed struggle out of a desire to remain neutral, a conscious political choice or other valid reasons of conscience;Note 25
- human rights activists, journalists or other citizens threatened with measures of persecution for investigating and/or criticizing military, paramilitary or guerilla activities and atrocities;
- persons fearing persecution for certain views attributed or imputed to them, such as "sabotaging the war efforts" or "collaborating with the enemy".Note 26
B) Group-based harm that is distinguishable from the general dangers of civil war:
Although the civil war has an adverse impact on the entire population, a particular racial, national, religious, social or political group may face a reasonable chance of persecution because of the group's identifying characteristic(s). For example:
- members of an ethnic group might face persecution as a result of, for example, selective denial of state protection related to their ethnicity;
- women and children may, because of their social or political role or because of their association with certain individuals (including family members) be targets of deliberate violence and abuse;Note 27
- members of a clan might be perceived as associated with another clan that had ruled the country prior to the civil war and might by reason of that perceived association, face persecution.Note 28
C) Harm that is not distinguishable from the general dangers of civil war.
As noted above, certain individuals and groups may face a reasonable chance of persecution on a Convention ground, notwithstanding the civil war's adverse impact on the entire population. On the other hand, there will be circumstances where the persecution feared may not be linked to a Convention ground. Reference is then made to the unavoidable, more or less anonymous consequences of a civil war. For example:
- civilians who are the unintentional victims of cross-fire between rival militias. The lack of an intention on the part of either of the rival militias leaves the civilians as "mere victims" of the civil war as there is no linkage between the harm feared and a Convention ground;Note 29
- civilians who are the unintentional victims of arbitrary, general or indiscriminate shelling and bombing or laying of land mines where the fear of such treatment is not linked to a Convention ground;Note 30
- civilians who are subject to random violence, such as looting, where the violence is not related to a Convention ground.Note 31
2. Fear of persecution arising from a civil war specifically directed against a group with which the claimant is affiliated.
The violence is directed at a group that differs from the rest of the population by virtue of specific racial, national, social or political features. For example:
- members of an ethnic group against which a genocidal campaign is being waged;
- members of a religious faith expelled from their homes and suffering other forms of persecutory treatment as part of an "ethnic cleansing" agenda.Note 32
3. Fear of persecution from circumstances unrelated to the civil war.
Although the claimant comes from a country in civil war, the danger faced by the claimant is not associated, directly or indirectly, with that war. However, the claimant may still be a Convention refugee if the fear of persecution is related to one of the five grounds. In this situation the claim should be determined without reference to the civil war framework. For example:
- union leaders threatened with measures of persecution for promoting unionism;
- members of a minority group treated in a persecutory manner, where such treatment or lack of protection is not related to the civil war.
III. Determining Whether There is a Well-Founded Fear of Persecution
It is clear from the case law that a claimant must establish that her fear is well founded, and that the state's inability to protect must be considered at this stage of the analysis of the claim. In addition, the Supreme Court of Canada in Ward confirmed that a claimant is to seek out international protection only when national or state protection is unavailable.Note 33 The claimant must seek the protection of the country of origin before seeking international protection, unless it is objectively unreasonable to do so.Note 34
The question, which must be addressed by the Refugee Division, is whether the claimant faces a reasonable chance of persecution by reason of a Convention ground: Is there a subjective fear for which there is an objective basis? As previously stated in these Guidelines, it is not required that the claimant's chance of facing persecution, individually or as a member of a group, be greater than the chance of persecution faced by others in situations of civil war; nor is it required that the persecution feared by the claimant be more severe than that feared by others.
A state's ability to protect the claimant is a crucial element in determining whether the fear of persecution is well founded, and as such, is not an independent element of the definition of Convention refugee. The Supreme Court of Canada in Ward held that there were two presumptions at play in refugee determination. With respect to the first presumption, the Court concluded that it can be presumed that persecution will be likely and the fear well-founded if the fear of persecution is credible and there is an absence of state protection. As a second presumption the Court held that except in situations where the state is in a condition of complete breakdown, states must be presumed capable of protecting their citizens. The Court found that this presumption can be rebutted by "clear and convincing" evidence of the state's inability to protect.Note 35
The presumption that a state must be presumed capable of protecting its citizens can be rebutted where there is a complete breakdown of state apparatus, such as that recognized in Zalzali v. M.E.I.Note 36 in relation to the civil war, then raging, in Lebanon. However, even where there is a breakdown of state apparatus,Note 37 there may be several established authorities in a country able to provide protection in the part of the country controlled by them.Note 38 Thus, the Refugee Division must consider whether there is an established authority from which protection may be sought and adequate protection is available.Note 39
Internal Flight Alternative
Even when a claimant otherwise meets all the elements of the Convention refugee definition in her home area of her country of origin,Note 40 the claimant may have an internal flight alternative (IFA) elsewhere in that country: If there is an IFA, the claimant is not a Convention refugee. The question of whether a IFA exists is an integral part of the Convention definition.Note 41 If it is necessary to consider the availability of an IFA, reference may be made to the Commentary on IFA.Note 42
The key concepts concernin IFA come from two cases: Rasaratnam and Thirunavukkarasu.Note 43 From these cases it is clear that the test to be applied in determining whether there is a IFA is two-pronged. Both prongs must be satisfied for there to be a finding that the claimant has an IFA. The Court of Appeal in Rasaratnam at pp. 709-11 adopts the two-pronged test:
In determining whether there is a reasonable chance of persecution in the potential IFA, the factors considered are similar to those evaluated when the panel makes this finding with respect to the claimant's home area of the country. However, some considerations are different in order to account for the fact that the claimant is being expected to seek out alternative refuge in the country of origin.Note 45
- 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 a IFA exists.
- Moreover, conditions in the part of the country considered to be a IFA must be such that it would be not unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.Note 44
In dealing with the second prong of the IFA test, "reasonableness in all the circumstances", the Court of Appeal has stated that the circumstances must be relevant to the IFA question: "They cannot be catalogued in the abstract. They will vary from case to case."Note 46
The Trial Division has provided some guidance in assessing the reasonableness of an IFA. In the civil war context, the Court has indicated that relevant factors include the state of infrastructure and economy in the IFA region (i.e. destroyed or not), and the stability or instability of the government that is in place there.Note 47 In addition, it may be necessary to consider the hardship in travelling to the IFA region.
A claimant should not be required to suffer great physical danger or undue hardship in travelling to the IFA region or in staying there.Note 48 However, if there is an IFA, the claimant is not a Convention refugee.
IV. Evidentiary Matters
When assessing a fear of persecution by a person fearing return to a situation of civil war the evidence must show that what the claimant fears is persecution on a Convention ground and that the fear is well-founded. The burden is on the claimant to provide the Refugee Division with credible or trustworthy evidence to show that all elements of the definition have been met; this includes establishing that there is individual or group targeting on a Convention ground.
Evidence can be provided through the claimant's own testimony. In addition, this can be done by the use of witnesses (including experts) to provide evidence on country conditions relating to targeting; such evidence can be introduced by way of affidavit in lieu of oral testimony.Note 49 The Refugee Division may take notice of any facts that may be judicially noticed and, subject to giving proper notice, of any other generally recognized facts and any information or opinion that is within its specialized knowledge.Note 50
One way for the claimant to establish her case can be through evidence that other similarly situated persons face a reasonable chance of persecution, whether or not that chance is applicable to a specific group only or to large segments of the population similarly situated to the claimant.Note 51
Refugee Claim Officers under the direction of the panel and Counsel should submit documentary evidence to provide evidence of country conditions relating to targeting. There should be recognition by the Refugee Division of the difficulty that is often encountered in acquiring information on country conditions when a country is embroiled in a civil war. Notwithstanding that a claimant has the burden of establishing her claim, Refugee Division panels should consider the statements in the UNHCR Handbook at paragraph 196 on the shared burden of information gathering.
Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.Note 52
In addition, there should be recognition that, given the rapidly changing country conditions generally associated with civil wars, there may be problems with the timeliness of evidence and problems encountered in obtaining current information with respect to those changes. Accordingly, Refugee Claim Officers under the direction of the panel and Counsel should seek out and submit to the hearing the most current information relating to country conditions.