Chapter 3 - Persecution

Previous | Table of Contents | Next

Table of Contents

  1. 3.1. Generally
    1. 3.1.1. Definition and general principles
      1. 3.1.1.1. Serious Harm
      2. 3.1.1.2. Repetition and Persistence
      3. 3.1.1.3. Nexus
      4. 3.1.1.4. Common Crime or Persecution?
      5. 3.1.1.5. Agent of Persecution
    2. 3.1.2. Cumulative Acts of Discrimination and/or Harassment
    3. 3.1.3. Forms of Persecution
      1. 3.1.3.1. Some Judicial Observations
  2. Table of Cases

3. Persecution

3.1. Generally

3.1.1. Definition and general principles

Like other terms in the Convention refugee definition, "persecution" is a word whose meaning is neither self-evident nor defined in the Immigration and Refugee Protection Act (IRPA). Therefore, it has fallen to the courts to identify the boundaries of the word. Case-law has not only labelled specific behaviours as instances of persecution, but also has gone some distance toward identifying general hallmarks that must be present, or criteria that must be met, in order for actions or omissions to constitute persecution.

In determining the meaning of persecution, it is useful to remember that Section 3(3)(f) of the Immigration and Refugee Protection Act states that the Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory.Note 1

Claimants cannot be asked to renounce their deeply held beliefs or refrain from exercising their fundamental rights to avoid persecution and as a price to live in security. It is precisely to avoid this result that state parties have agreed to the United Nations Convention Relating to the Status of Refugees.Note 2

3.1.1.1. Serious Harm

First, to be considered persecution, the mistreatment suffered or anticipated must be serious.Note 3 And in order to determine whether particular mistreatment would qualify as "serious", one must examine:

  1. what interest of the claimant might be harmed; and
  2. to what extent the subsistence, enjoyment, expression or exercise of that interest might be compromised.

This approach has been approved by the courts, which have equated the notion of a serious compromising of interest with a key denial of a core human right. Thus, in Ward,Note 4 the Supreme Court said as follows:

Underlying the Convention is the international community's commitment to the assurance of basic human rights without discrimination. This is indicated in the preamble to the treaty as follows:

CONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights - have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.

This theme … provides an inherent limit to the cases embraced by the Convention. Hathaway, - at p. 108, thus explains the impact of this general tone on the treaty on refugee law:

The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way and that the sustained or systemic denial of core human rights is the appropriate standard.

This theme sets the boundaries for many of the elements of the definition of Convention "refugee". "Persecution", for example, undefined in the Convention, has been ascribed the meaning of "sustained or systemic violation of basic human rights demonstrative of a failure of state protection"; see Hathaway, - at pp. 104-105. So too Goodwin-Gill, … at p. 38 observes that "comprehensive analysis requires the general notion [of persecution] to be related to developments within the broad field of human rights". This has recently been recognized by the Federal Court of Appeal in the Cheung case.Note 5

In Chan,Note 6 La Forest J. (in dissent) reiterated that "[t]he essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way." Mr. Justice La Forest also said:

These basic human rights are not to be considered from the subjective perspective of one country ... By very definition, such rights transcend subjective and parochial perspectives and extend beyond national boundaries. This does not mean, however, that recourse to the municipal law [i.e. domestic or internal law] of the admitting nation may not be made. For such municipal law may well animate a consideration of whether the alleged feared conduct fundamentally violates basic human rights.Note 7

If the conduct does amount to persecution, there is no further requirement that the persecution be dramatic or appalling or horrendous,Note 8 unless the issue in the case involves the application of section 108(4) of the IRPA (section 2(3) of the former Immigration Act) (see Chapter 7, section 7.2).

The requirement that the harm be serious has led to a distinction between persecution on the one hand, and discrimination or harassment on the other, with persecution being characterized by the greater seriousness of the mistreatment which it involves.Note 9 Discrimination and harassment are sometimes conceived of as being distinct from persecution; alternatively, some references to persecution and discrimination imply that persecution is a subset of discrimination; but in either case, what distinguishes persecution - whether from discrimination or non-persecutory discrimination - is the degree of seriousness of the harm. The Court of Appeal has observed that "the dividing line between persecution and discrimination or harassment is difficult to establish."Note 10 As to the particular susceptibilities of a given claimant, the Court in NejadNote 11 said the following:

The CRDD did recognize and the Court agrees that there may be certain circumstances in which the particular characteristics or circumstances of a claimant ... might affect the assessment of whether certain acts or treatments are persecutory. [To] ... the extent that an agent of persecution intentionally plays upon or exploits the fact that a person suffers from a particular frailty or condition in order to cause harm, an act not normally or inherently persecutorial, may be transformed into an act of persecution.

That is beautiful in theory, but who knows what is the intention of the persecutor? Who knows what is the particular knowledge of the persecutor? One must look at the act and the effect.Note 12 And in this case, in particular, because of the old age of the applicants, it should have been more obvious to the CRDD panel that the effect upon them was that of persecution.

For additional material on the distinction between persecution and discrimination, see paragraph 54 of the UNHCR Handbook.

3.1.1.2. Repetition and Persistence

A second criterion of persecution is that the inflicting of harm occurs with repetition or persistence, or in a systematic way. This requirement has been approved in Ward (quoting Hathaway).Note 13 It also derives from the Court of Appeal decision in Rajudeen,Note 14 which is much-cited on this point:

The definition of Convention refugee in the Immigration Act does not include a definition of "persecution". Accordingly, ordinary dictionary definitions may be considered. The Living Webster Encyclopedic Dictionary defines "persecute" as:

"To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship."

The Shorter Oxford English Dictionary contains, inter alia, the following definitions of "persecution":

"A particular course or period of systematic infliction of punishment directed against those holding a particular (religious belief); persistent injury or annoyance from any source."

...[the evidence] establishes beyond doubt a lengthy period of systematic infliction of threats and of personal injury. The applicant was not mistreated because of civil unrest in Sri Lanka but because he was a Tamil and a Muslim.Note 15

The Court of Appeal later provided something of an elaboration in ValentinNote 14:

…it seems to me … that an isolated sentence can only in very exceptional cases satisfy the element of repetition and relentlessness found at the heart of persecution (cf. Rajudeen…) …Note 17

Jurisprudence also recognizes that some sentences and forms of punishment of undue proportion by the state may be considered as persecution, such as in certain cases involving military evaders.Note 18

These authorities notwithstanding, it would seem that persistence or repetition should not be regarded as a necessary element in all cases. Some forms of harm are unlikely to be inflicted repeatedly (e.g., female genital mutilation), or are simply incapable of being repeated (e.g., the killing of the claimant's family as a form of retribution against the claimant); nevertheless, they are so severe that their characterization as persecution seems beyond dispute.Note 19

In the case of Ranjha,Note 20 the Court has further commented that there should not be an "exaggerated emphasis" on the need for repetition and persistence. Rather, the RPD should analyze the quality of incidents in terms of whether they constitute "a fundamental violation of human dignity".

While the experiences of persons with similar profiles must be taken into account when considering whether ill treatment is systemic, each case must be determined on its own facts.Note 21

3.1.1.3. Nexus

For a claim to succeed, the definition of Convention refugee requires that the persecution be linked to a Convention ground. The Supreme Court of Canada noted in Ward that:

… the international community did not intend to offer a haven for all suffering individuals. The need for "persecution" in order to warrant international protection, for example, results in the exclusion of such pleas as those of economic migrants, i.e. individuals in search of better living conditions, and those of victims of natural disasters, even when the home state is unable to provide assistance. …Note 22

In Suvorova, the Court commented that in determining whether a nexus exists the claimant's narrative should be considered from the perspective of all Convention grounds. The Court noted that there is an obligation to consider all possible grounds for protection raised by the facts, even if they are not raised by a claimant.Note 23

Indirect persecution (see Chapter 9, section 9.4) does not constitute persecution within the meaning of the definition of Convention refugee as there is no personal nexus between the claimant's alleged fear and a Convention ground. Accordingly, the Federal Court of Appeal in Pour-Shariati held, overruling Bhatti,Note 25 a case recognizing the concept of indirect persecution, that:

We accordingly overrule Bhatti's recognition of the concept of indirect persecution as a principle of our refugee law. In the words of Nadon, J. in Casetellanos v. Canada (Solicitor General) (1994), 89 F.T.R. 1, 11, "since indirect persecution does not constitute persecution within the meaning of Convention refugee, a claim based on it should not be allowed." It seems to us that the concept of indirect persecution goes directly against the decision of this Court in Rizkallah v. Canada, A-606-90, decided 6 May 1992, [1992] F.C.J. No. 412, where it was held that there had to be a personal nexus between the claimant and the alleged persecution on one of the Convention grounds. One of these grounds is, of course, a "membership in a particular social group," a ground which allows for family concerns in on [sic] appropriate case.Note 22

In GranadaNote 26, the Court set out the only circumstances in which the family can be considered a particular social group as follows:

[16] The family can only be considered to be a social group in cases where there is evidence that the persecution is taking place against the family members as a social group: [citations omitted]. However, membership in the social group formed by the family is not without limits, it requires some proof that the family in question is itself, as a group, the subject of reprisals and vengeance…Note 27.
3.1.1.4. Common Crime or Persecution?

Persecution has been distinguished from random and arbitrary violenceNote 28 and from suffering as a result of a criminal act or a personal vendetta.Note 29 In a few of the cases where the claimant has been victimized by what might be characterized as a "common" crime, there has been some discussion of whether the mistreatment in question might qualify as "persecution". The Trial Division has said that most acts of persecution can be characterized as criminal, but that in an individual case the Refugee Division (now Refugee Protection Division - RPD) may nevertheless distinguish between criminal acts and persecution.Note 30 In the case of Alifanova,Note 31 the Court has further commented that while most acts of persecution are criminal in nature, not all criminal acts can be considered acts of persecution. It continues to give the following example: "Extortion is a criminal act. Threats of bodily harm is a criminal act. Because these criminal acts are made by Kazakhs against Russians does not make the act one of persecution." Some of the cases in this area involve personal vendettas, or the misuse of official position, or the witnessing of criminal acts.

With respect to cases involving domestic abuse, the Court of Appeal in Mayers,Note 32 said that the Refugee Division might find domestic violence to be persecution, but in the circumstances of the case, the Court was not required to make that finding.Note 33 The Trial Division, in a number of cases has regarded domestic abuse as persecution.Note 34 The cases often intertwine the discussion of whether domestic violence constitutes persecution with the question of whether victims of domestic violence constitute a particular social group. For example, in Resulaj,Note 35 the Court made the following observation:

Nothing prevents a woman from being both a victim of domestic violence and a victim of crime. It is well established that a women [sic] subject to domestic violence constitute a particular social group entitled to convention refugee protection. [Diluna; Narvaez]

Another earlier example is Aros,Note 36 where the Court noted:

Accepting that the applicant suffered physical and psychological abuse at the hands of her common law husband …, the panel made no overriding error in concluding she was not a member of a social group that faced persecution within the definition…

In assessing claims based on criminal acts, it is suggested that members inquire whether the harm is serious,Note 37 whether there is a serious possibility of the harm's occurring, whether the harm is inflicted for a Convention reason,Note 38 and whether state protection is available.Note 39 The finding of state protection must be made on the basis of the evidence before the panel rather than on mere speculation.Note 40 See also Chapter 4, section 4.7.

3.1.1.5. Agent of Persecution

Serious human rights violations may in fact issue not only from higher authorities of the state, but also from subordinate state authorities, or from persons who are not attached to the government; and whichever is the case, the Convention may apply. In order to be categorized as persecution, the harm need not emanate from the state, and the state need not be involved or be complicit in the perpetration of the harm.Note 41

The fact that those who inflict mistreatment are schoolchildren and schoolyard bullies is not relevant to the question of whether the mistreatment amounts to persecution.Note 42 Similarly, serious mistreatment inflicted by teenagers upon a minor claimant may not reasonably be regarded as mere pranks.Note 43

For more regarding the role of the state with respect to mistreatment of a claimant, see Chapter 6.

3.1.2. Cumulative Acts of Discrimination and/or Harassment

A given episode of mistreatment may constitute discrimination or harassment, yet not be serious enough to be regarded as persecution.Note 44 Indeed, a finding of discrimination rather than persecution is within the jurisdiction of the RPD.Note 45 Even so, acts of harassment, none amounting to persecution individually, may cumulatively constitute persecution.Note 46 Where the claimant has experienced more than one incident of mistreatment, the Refugee Protection Division may err if it only looks at each incident separately.Note 47 However, "it is insufficient for the RPD to simply state that it has considered the cumulative nature of the discriminatory acts", without any further analysis.Note 48 Moreover, the Court has also commented on the need to consider whether the repeated incidents of harassment in the past may lead to a serious possibility of persecution in the future.Note 49

In Mundereve,Note 50 the Federal Court of Appeal quoted with approval the following principles set out by the Federal Court in Mete:Note 51

[4] The following three legal principles are not controversial. First, in Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129, the Federal Court of Appeal defined persecution in terms of: to harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently; to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship; a particular course or period of systematic infliction of punishment directed against those holding a particular belief; and persistent injury or annoyance from any source.

[5] Second, in cases where the evidence establishes a series of actions characterized to be discriminatory, and not persecutory, there is a requirement to consider the cumulative nature of that conduct. This requirement reflects the fact that prior incidents are capable of forming the foundation of present fear. See: Retnem v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 53 (F.C.A.). This is also expressed in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status ("Handbook on Refugee Status") in the following terms, at paragraph 53: [Citation omitted]

[6] Third, it is an error of law for the RPD not to consider the cumulative nature of the conduct directed against a claimant. See: Bobrik v. Canada (Minister of Citizenship and Immigration)(1994), 85 F.T.R. 13 (T.D.) at paragraph 22, and the authorities there reviewed by my colleague Madam Justice Tremblay-Lamer.

It is appropriate to consider both the actions of the government against the individual claimant and the overall atmosphere created by the state's intolerance.Note 52

See also paragraphs 53, 54, 55, 67 and 201 of the UNHCR Handbook.

The Federal Court in Liang, citing paragraphs 54 and 55 of the UNHCR Handbook affirmed that in the exercise of determining whether cumulative discrimination and harassment constitutes persecution it is necessary to evaluate the claimant's personal circumstances and vulnerabilities including age, health, and finances.Note 53

In assessing whether cumulative acts of discrimination amount to persecution it is necessary first to decide whether an individual act constitutes harassment or is discriminatory. The Federal Court in HundNote 54 concluded that it would be an error to consider acts that are erroneously characterized as discriminatory in assessing whether cumulative acts of discrimination amount to persecution. Such acts could include abandonment by one's own family, general threats made at community meetings, and relocating. Also, the "cumulative effect" should only consider incidents related to a Convention reason.

Where state protection is available for the types of events alleged as discriminatory, the cumulative assessment is not necessary.Note 55

In Munderere,Note 56 the Federal Court of Appeal stated that "there is nothing in paragraph 53 of the UNHCR Handbook which could justify an expansion of the cumulative effect of incidents doctrine to events that occurred in two different countries." The Court held that, when analyzing cumulative grounds, "[a]s a matter of principle, events which occur in a country other than that in respect of which a claimant seeks refugee status should not be considered."Note 57 However, the Court added the following caveat: 'except where the events which occur in a country other than that in respect of which a claimant seeks refugee status are relevant to the determination of whether the country where a claimant seeks refugee status can protect him or her from persecution."Note 58

3.1.3. Forms of Persecution

3.1.3.1. Some Judicial Observations

It is impossible to compile an exhaustive catalogue of forms of persecution. Furthermore, whether particular harm constitutes persecution may depend upon the facts of the individual case. Nevertheless, here are some of the more instructive observations that emerge from the case law. (NOTE: The statements which follow should be approached with caution. To obtain context and understand the statements fully, the reader should consult the cases on which they are based.)

  • Torture, beatings and rape are prime examples of persecution.Note 59
  • The term "discrimination" is not adequate to describe behaviour which includes acts of violence and death threats.Note 60
  • Death threats may constitute persecution even if the persons making the threats refrain from carrying them out.Note 61 Whether death threats do amount to acts of persecution depends upon the personal circumstances of the claimant.Note 62
  • When imposed for certain offences, the death penalty may not constitute persecution.Note 63
  • Forced or strongly coerced sterilization constitutes persecution, whether the victim is a womanNote 64 or a man.Note 65 Forced abortion also constitutes persecution,Note 66 as does the forcible insertion of an IUD.Note 67
  • Female circumcision is a "cruel and barbaric practice", a "horrific torture", and an "atrocious mutilation".Note 68
  • For "persecution" to exist within the meaning of the definition, it is not necessary for the subject to have been deprived of his freedom.Note 69
  • There may be persecution even if there is no physical harm or mistreatment.Note 70
  • Psychological violence may be an element in persecution.Note 71
  • The bringing of a trumped-up charge, and interference in the due process of law, may be aspects of persecutory treatment.Note 72
  • The fact that the claimant, along with all of his or her co-nationals, suffers curtailment of freedom of speech, in and of itself does not amount to persecution.Note 73
  • Barring one claimant from obtaining citizenship and from taking part in political activities, and barring a second claimant (a citizen) from voting and from otherwise participating in the political process, did not constitute persecution where the claimants enjoyed numerous other rights.Note 74
  • Punishment for violation of a law concerning dress may constitute persecution.Note 75
  • Denial of a right of return may constitute an act of persecution.Note 76
  • Simple statelessness does not make one a Convention refugee.Note 77
  • Economic penalties may be an acceptable means of enforcing a state policy,Note 78 where the claimant is not deprived of his or her right to earn a livelihood.Note 79
  • Where the state interferes substantially with the claimant's ability to find work, the possibility of the claimant's finding illegal employment is not an acceptable remedy.Note 80
  • Permanently depriving an educated professional of his or her accustomed occupation and limiting the person to farm and factory work constituted persecution.Note 81 In contrast, treatment at work such as being more closely scrutinized, being given low profile jobs and being regularly questioned do not add up to persecution.Note 82
  • By itself, confiscation of property is not sufficiently grave to constitute persecution.Note 83
  • Serious economic deprivations may be components of persecution.Note 84
  • Extortion may be one of the indicia of persecution, depending upon the reason for the extortion and the motivation of the claimant in paying.Note 85
  • A child who would experience hardships including deprivation of medical care, education opportunities, employment opportunities and food would suffer concerted and severe discrimination, amounting to persecution.Note 86
  • A child who is made to witness appalling physical and psychological domestic violence is a victim of abuse and the RPD must assess the child’s risk of persecution.Note 87
  • Education is a basic human right and a nine-year-old claimant who could have avoided persecution only by refusing to go to school was deemed to be a Convention refugee.Note 88
  • It is not an act of persecution to ban certain groups of children from attending public schools, if they are permitted to have their own schools.Note 89
  • Forcing a woman into a marriage violates one of her basic human rights.Note 90
  • An impediment to the claimant’s marrying in her homeland did not constitute persecution.Note 91 However, the RPD should consider whether preventing a claimant from getting married or from having further children by being threatened with forced sterilization might, in and of itself, amount to persecution.Note 92
  • Legal restrictions allowing certain categories of people to settle only in certain areas did not constitute persecution.Note 93
  • A law which requires a person to forsake the principles or practices of his or her religion is patently persecutory, so long as the principles or practices in question are not unreasonable.Note 94 Sanctions such as a short detention, fine or re-education term, which might have been imposed upon the claimant for practising his religion or belonging to a particular religious community, were serious measures of discrimination and constituted persecution.Note 95
  • Injury to pride and political sensibilities did not amount to a violation of security of the person.Note 96
  • Lamentable rough treatment, involving detention and interrogation, in a country that is experiencing serious terrorist activity, does not of itself amount to persecution.Note 97
  • Minor children who are expected to provide support for other family members, after being smuggled into Canada, are not persecuted by their parents.Note 98
  • The act of being illegally trafficked is not in itself persecution simply because the claimant is a minor.Note 99
  • Restrictions by a state on a foreign spouse's entry into its territory that are not made on a discriminatory basis do not constitute persecution.Note 100
  • Forcing non-religious or secular persons to adhere to strict Islamic codes will not generally amount to persecution (particularly where there is evidence of significant improvements).Note 101
  • Insults and attacks on a conscientious objector while in prison do not constitute persecution.Note 102
  • Persecution may exist where services for the mentally ill are abysmal and the population regards them as being possessed by “supernatural evil”.Note 103

Table of Cases

  1. Abdel-Khalik, Fadya Mahmoud v. M.E.I. (F.C.T.D., no. IMM-883-93), Reed, January 31, 1994. Reported: Abdel-Khalik v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 262 (F.C.T.D.)
  2. Abouhalima, Sherif v. M.C.I. (F.C.T.D., no. IMM-835-97), Gibson, January 30, 1998
  3. Abramov, Andrei v. M.C.I. (F.C.T.D., no. IMM-3576-97), Tremblay-Lamer, June 15, 1998
  4. Abrego, Apolonio Paz v. M.E.I. (F.C.A., no. A-348-91), Hugessen, Linden, Holland, February 18, 1993
  5. Abu El Hof, Nimber v. M.C.I. (F.C., no. IMM-1494-05), von Finckenstein, November 8, 2005; 2005 FC 1515
  6. Ahmad, Rizwan v. S.G.C. (F.C.T.D., no. IMM-7180-93), Teitelbaum, March 14, 1995
  7. Ali in Gonsalves, Stanley Bernard v. M.C.I. (F.C., no. IMM-3827-10), Zinn, June 7, 2011; 2011 FC 648
  8. Ali, Shaysta-Ameer v. M.C.I. (F.C.T.D., no. IMM-3404-95), McKeown, October 30, 1996. Reported: Ali v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 34 (F.C.T.D.)
  9. Alifanova, Nathalia v. M.C.I. (F.C.T.D., no. IMM-5501-97), Teitelbaum, December 11, 1998
  10. Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996
  11. Amayo v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 520 (C.A.)
  12. Ammery, Poone v. S.S.C. (F.C.T.D., no. IMM-5405-93), MacKay, May 11, 1994
  13. Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.)
  14. Ansar, Iqbal v. M.C.I. (F.C.T.D., no. IMM-4124-97), Campbell, July 22, 1998
  15. Antoine, Belinda v. M.C.I. (F.C., no. IMM-4967-14), Fothergill, June 26, 2015; 2015 FC 795
  16. Antonio, Pacato Joao v. M.E.I. (F.C.T.D., no. IMM-1072-93), Nadon, September 27, 1994
  17. Arafa, Mohammed v. M.E.I. (F.C.T.D., no. A-663-92), Gibson, November 3, 1993
  18. Arguello-Garcia, Jacobo Ignacio v. M.E.I. (F.C.T.D., no. 92-A-7335), McKeown, June 23, 1993. Reported: Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.)
  19. Aros, Angelica Elizabeth Navarro v. M.C.I. (F.C.T.D., no. IMM-4480-96), MacKay, February 11, 1998
  20. Asadi, Sedigheh v. M.C.I. (F.C.T.D., no. IMM-1921-96), Lutfy, April 18, 1997
  21. Atwal, Mohinder Singh v. M.C.I. (F.C.T.D., no. IMM-6769-98), Nadon, November 17, 1999
  22. Aykut, Ibrahim v. M.C.I. (F.C., no. IMM-5310-02), Gauthier, March 26, 2004; 2004 FC 466
  23. Balendra, Cheran v. M.C.I. (F.C.T.D., no. IMM-1653-94), Richard, January 30, 1995
  24. Bayrak, Ibrahim v. M.C.I. (F.C., no. IMM-11458-12), Shore, October 21, 2013; 2013 FC 1056
  25. BC v. M.C.I. (F.C., no. IMM-4840-02), Gibson, July 4, 2003; 2003 FC 826
  26. Bencic, Eva v. M.C.I. (F.C.T.D., no. IMM-3711-00), Kelen, April 26, 2002; 2002 FCT 476
  27. Bhatti, Naushaba v. S.S.C. (F.C.T.D., no. A-89-93), Jerome, September 14, 1994. Reported: Bhatti v. Canada (Secretary of State) (1994), 25 Imm. L.R. (2d) 275 (F.C.T.D.)
  28. Bougai, Zoia (a.k.a. Bougai, Zoya) v. M.C.I. (F.C.T.D., no. IMM-4966-94), Gibson, June 15, 1995
  29. Bragagnini-Ore, Gianina Evelyn v. S.S.C. (F.C.T.D., no. IMM-2243-93), Pinard, February 4, 1994
  30. Bursuc, Cristinel v. M.C.I. (F.C.T.D., no. IMM-5706-01), Dawson, September 11, 2002; 2002 FCT 957
  31. Cetinkaya, Lukman v. M.C.I. (F.C.T.D., no. IMM-2559-97), Muldoon, July 31, 1998
  32. Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues
  33. Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution
  34. Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (C.A.)
  35. Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593
  36. Chen, Shun Guan v. M.C.I. (F.C.T.D., no. IMM-1433-96), Lutfy, January 31, 1997
  37. Chen, Yo Long v. M.C.I. (F.C.T.D., no. IMM-487-94), Richard, January 30, 1995
  38. Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.)
  39. Chu, Zheng-Hao v. M.C.I. (F.C.T.D., no. IMM-5159-94), Jerome, January 17, 1996
  40. Convention on the Rights of the Child (CRC)
  41. Cortez, Delmy Isabel v. S.S.C. (F.C.T.D., no. IMM-2482-93), McKeown, December 15, 1993
  42. Daghmash, Mohamed Hussein Moustapha v. M.C.I. (F.C.T.D., no. IMM-4302-97), Lutfy, June 19, 1998
  43. Devi, Nalita v. M.C.I. (F.C., no. IMM-3994-06), Layden-Stevenson, February 8, 2007; 2007 FC 149
  44. Diluna, Roselene Edyr Soares v. M.E.I. (F.C.T.D., no. IMM-3201-94), Gibson, March 14, 1995. Reported: Diluna v. Canada (Minister of Employment and Immigration) (1995), 29 Imm. L.R. (2d) 156 (F.C.T.D.)
  45. Dragulin, Constantin Marinescu v. S.G.C. (F.C.T.D., no. IMM-46-94), Rouleau, December 23, 1994
  46. El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994
  47. El Khatib: M.C.I. v. El Khatib, Naif (F.C.A., no. A-592-94), Strayer, Robertson, McDonald, June 20, 1996
  48. Falberg, Victor v. M.C.I. (F.C.T.D., no. IMM-328-94), Richard, April 19, 1995
  49. Fathi-Rad, Farideh v. S.S.C. (F.C.T.D., no. IMM-2438-93), McGillis, April 13, 1994
  50. Frid, Mickael v. M.C.I. (F.C.T.D., no. IMM-6694-93), Rothstein, December 15, 1994
  51. Garcia Luzbet, Yunetsy v. M.C.I. (F.C., no. IMM-57-11), Harrington, July 22, 2011; 2011 FC 923
  52. Gebre-Hiwet, Tewodros v. M.C.I. (F.C., no. IMM-3844-09), Phelan, April 30, 2010; 2010 FC 482
  53. Gidoiu, Ion v. S.S.C. (F.C.T.D., no. IMM-2907-94), Wetston, April 6, 1995
  54. Gomez-Rejon, Bili v. M.E.I. (F.C.T.D., no. IMM-470-93), Joyal, November 25, 1994
  55. Gonzalez, Brenda Yojana v. M.C.I. (F.C.T.D., no. IMM-1092-01), Dawson, March 27, 2002; 2002 FCT 345
  56. Granada, Armando Ramirez v. M.C.I. (F.C., no. IMM-83-04), Martineau, December 21, 2004; 2004 FC 1766
  57. Gur, Irem v. M.C.I. (F.C., no. IMM-6294-11), de Montigny, August 14, 2012; 2012 FC 992
  58. Gutkovski, Alexander v. S.S.C. (F.C.T.D., no. IMM-746-94), Teitelbaum, April 6, 1995
  59. Hamdan: M.C.I. v. Hamdan, Amneh (F.C., no. IMM-7723-04), Gauthier, March 6, 2006; 2006 FC 290
  60. Hazarat, Ghulam v. S.S.C. (F.C.T.D., no. IMM-5496-93), MacKay, November 25, 1994
  61. He, Shao Mei v. M.E.I. (F.C.T.D., no. IMM-3024-93), Simpson, June 1, 1994. Reported: He v. Canada (Minister of Employment and Immigration) (1994), 25 Imm. L.R. (2d) 128 (F.C.T.D.)
  62. He, Shao Mei v. M.E.I. (F.C.T.D., no. IMM-3024-93), Simpson, June 1, 1994. Reported: He v. Canada (Minister of Employment and Immigration) (1994), 25 Imm. L.R. (2d) 128 (F.C.T.D.)
  63. Herczeg, Zsolt v. M.C.I. (F.C., no. IMM-5538-06), Mandamin, October 23, 2007; 2007 FC 2000
  64. Horvath, Karoly v. M.C.I. (F.C.T.D., no. IMM-4335-99), MacKay, April 27, 2001
  65. Horvath, Laszlo v. M.C.I. (F.C., no. IMM-4326-10), Mandamin, November 23, 2011; 2011 FC 1350
  66. Hund: M.C.I. v. Hund, Matthew, (IMM-5512-07), Lagacé, February 5, 2009; 2009 FC 121
  67. Igumnov, Sergei v. M.C.I. (F.C.T.D., no. IMM-6993-93), Rouleau, December 16, 1994
  68. International Covenant on Civil and Political Rights
  69. International Covenant on Economic
  70. Iossifov, Svetoslav Gueorguiev v. M.E.I. (F.C.T.D., no. A-854-92), McKeown, December 8, 1993
  71. Iruthayanathar, Joseph v. M.C.I. (F.C.T.D., no. IMM-3619-99), Gibson, June 15, 2000
  72. Ismayilov, Anar v. M.C.I. (F.C., no. IMM-7263-14), Mactavish, August 26, 2015; 2015 FC 1013
  73. Jebnoun, Fadhila v. M.C.I. (F.C.T.D., no. IMM-6261-93), McGillis, January 12, 1995. Reported: Jebnoun v. M.C.I. (1995), 28 Imm. L.R. (2d) 67 (F.C.T.D.)
  74. Kadenko, Ninal v. S.G.C. (F.C.T.D., no. IMM-809-94), Tremblay-Lamer, June 9, 1995. Reported: Kadenko v. Canada (Solicitor General) (1995), 32 Imm. L.R. (2d) 275 (F.C.T.D.)
  75. Kadenko: M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Décary, Hugessen, Chevalier, October 15, 1996
  76. Kadhm, Suhad Mohamed v. M.C.I. (F.C.T.D., no. IMM-652-97), Muldoon, January 8, 1998
  77. Kamran, Mohsin Ali v. M.C.I. (F.C., no. IMM-4760-10), Russell, March 29, 2011; 2011 FC 380
  78. Kanagalingam, Uthayakumari v. M.C.I. (F.C.T.D., no IMM-566-98), Blais, February 10, 1999
  79. Karaseva, Tatiana v. M.C.I. (F.C.T.D., no. IMM-4683-96), Teitelbaum, November 26, 1997
  80. Karpounin, Maxim Nikolajevitsh v. M.E.I. (F.C.T.D., no. IMM-7368-93), Jerome, March 10, 1995
  81. Kassatkine, Serguei v. M.C.I. (F.C.T.D., no. IMM-978-95), Muldoon, August 20, 1996
  82. Kaur, Biba v. M.C.I. (F.C.T.D., no. IMM-305-96), Jerome, January 17, 1997
  83. Kaya, Nurcan v. M.C.I. (F.C., no. IMM-5565-03), Harrington, January 14, 2004; 2004 FC 45
  84. Kazkan, Shahrokh Saeedi v. M.C.I. (F.C.T.D., no. IMM-1313-96), Rothstein, March 20, 1997
  85. Keninger, Erzsebet v. M.C.I. (F.C.T.D., no. IMM-3096-00), Gibson, July 6, 2001
  86. Kicheva, Zorka v. M.E.I. (F.C.T.D., no. A-625-92), Denault, December 23, 1993
  87. Kim, Jae Wook v. M.C.I. (F.C., no. IMM-4200-09), Shore, February 12, 2010; 2010 FC 149
  88. Kularatnam, Suhitha v. M.C.I. (F.C., no. IMM-3530-03), Phelan, August 12, 2004; 2004 FC 1122
  89. Kwiatkowsky v. Canada (Minister of Employment and Immigration), [1982] 2 S.C.R. 856
  90. Lai, Quang v. M.E.I. (F.C.T.D., no. IMM-307-93), McKeown, May 20, 1994
  91. Lerer, Iakov v. M.C.I. (F.C.T.D., no. IMM-7438-93), Cullen, January 5, 1995
  92. Li, Qing Bing v. M.C.I. (F.C.T.D., no. IMM-5095-98), Reed, August 27, 1999
  93. Liang, Hanquan v. M.C.I. (F.C. no. IMM-3342-07), Tremblay-Lamer, April 8, 2008; 2008 FC 450
  94. Lin, Qu Liang v. M.E.I. (F.C.A., no. 93-A-142), Rouleau, July 20, 1993. Reported: Lin v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 208 (F.C.T.D.)
  95. Lin: M.C.I. v. Lin, Chen (F.C.A., no. A-3-01) Desjardins, Décary, Sexton, October 18, 2001
  96. Ling, Che Keung v. M.E.I. (F.C.T.D., no. 92-A-6555), Muldoon, May 20, 1993
  97. M.C.I. v. Oh, Mi Sook (F.C., no. IMM-5048-08), Pinard, May 22, 2009; 2009 FC 506
  98. M.C.I. v. Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008: 2008 FC 747
  99. Maarouf v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 723 (T.D.)
  100. 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
  101. Malchikov, Alexander v. M.C.I. (F.C.T.D., no. IMM-1673-95), Tremblay-Lamer, January 18, 1996
  102. Marshall, Matin v. M.C.I. (F.C., no. IMM-3638-07), O'Keefe, August 14, 2008; 2008 FC 946
  103. Mayers: Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154 (C.A.)
  104. Mendoza, Elizabeth Aurora Hauayek v. M.C.I. (F.C.T.D., no. IMM-2997-94), Muldoon, January 24, 1996
  105. Mete, Dursun Ali v. M.C.I. (F.C., no. IMM-2509-04), Dawson, June 17, 2005; 2005 FC 840
  106. Modeste, Sherisa Shermika Patricia v. M.C.I. (F.C., no. IMM-9659-12), Russell, December 18, 2013; 2013 FC 1262
  107. Molaei, Farzam v. M.C.I. (F.C.T.D., no. IMM-1611-97), Muldoon, January 28, 1998
  108. Montoya, Hernan Dario Calderon v. M.C.I. (F.C.T.D., no. IMM-5027-00), Hansen, January 18, 2002; 2002 FCT 63
  109. Mortera, Senando Layson v. M.E.I. (F.C.T.D., no. A-1084-92), McKeown, December 8, 1993
  110. Moudrak, Vanda v. M.C.I. (F.C.T.D., no. IMM-1480-97), Teitelbaum, April 1, 1998
  111. Mousavi-Samani, Nasrin v. M.C.I. (F.C.T.D., no. IMM-4674-96), Heald, September 30, 1997
  112. Munderere: M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Nadon, Décary, Létourneau, March 5, 2008; 2008 FCA 84
  113. Munoz, Alfonso La Rotta v. M.C.I. (F.C.T.D., no. IMM-2207-93), Pinard, November 28, 1994
  114. Murugamoorthy, Rajarani v. M.C.I. (F.C., no. IMM-4706-02), O'Reilly, September 29, 2003; 2003 FC 1114
  115. Murugiah, Rahjendran v. M.E.I. (F.C.T.D., no. 92-A-6788), Noël, May 18, 1993
  116. Muthuthevar, Muthiah v. M.C.I. (F.C.T.D., no. IMM-2095-95), Cullen, February 15, 1996
  117. Namitabar v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 42 (T.D.)
  118. Narvaez v. Canada (Minister of Citizenship and Immigration), [1995] 2 F.C. 55 (T.D.)
  119. Ndegwa, Joshua Kamau v. M.C.I. (F.C., no. IMM-6058-05), Mosley, July 5, 2006; 2006 FC 847
  120. Nejad, Hossein Hamedi v. M.C.I. (F.C.T.D., no. IMM-2687-96), Muldoon, July 29, 1997
  121. Nina, Razvan v. M.C.I. (F.C.T.D., no. A-725-92), Cullen, November 24, 1994
  122. Njoko, Tubila v. M.E.I. (F.C.T.D., no. A-1698-92), Jerome, January 25, 1995
  123. Nyota, Katy v. M.C.I. (F.C., no. IMM-4289-10), O’Keefe, June 13, 2011; 2011 FC 675
  124. Oyarzo v. Canada (Minister of Employment and Immigration), [1982] 2 F.C. 779 (C.A.)
  125. Pierre-Louis, Edy v. M.E.I. (F.C.A., no. A-1264-91), Hugessen, MacGuigan, Décary, April 29, 1993
  126. Porto, Javier Cardozo v. M.E.I. (F.C.T.D., no. A-1549-92), Noël, September 3, 1993
  127. Pour-Shariati, Dolat v. M.E.I. (F.C.A., no. A-721-94), MacGuigan, Robertson, McDonald, June 10, 1997, at 4. Reported: Pour-Shariati v. Canada (Minister of Employment and Immigration) (1997), 39 Imm. L.R. (2d) 103 (F.C.A.)
  128. R. v. Smith, [1987] 1 S.C.R. 1045
  129. Rabbani, Farideh v. M.C.I. (F.C.T.D., no. IMM-2032-96), McGillis, June 3, 1997
  130. Rajah, Jeyadevan v. M.E.I. (F.C.T.D., no. 92-A-7341), Joyal, September 27, 1993
  131. Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984. Reported: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.)
  132. Ramirez, Rosa Etelvina v. S.G.C. (F.C.T.D., no. IMM-1192-94), Rouleau, December 9, 1994
  133. Ranjha, Muhammad Zulfiq v. M.C.I. (F.C.T.D., no. IMM-5566-01), Lemieux, May 21, 2003; 2003 FCT 637
  134. Ravji, Shahsultan Meghji v. M.E.I. (F.C.T.D., no. A-897-92), McGillis, August 4, 1994
  135. Rawji, Riayz v. M.E.I. (F.C.T.D., no. IMM-5929-93), Gibson, November 25, 1994
  136. Resulaj, Blerina v. M.C.I. (F.C., no. IMM-7205-03), Von Finckenstein, September 14, 2004
  137. Retnem, Rajkumar v. M.E.I. (F.C.A., no. A-470-89), MacGuigan, Décary, Pratte (dissenting), May 6, 1991. Reported: Retnem v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 317 (F.C.A.)
  138. Rodriguez-Hernandez, Severino Carlos v. S.S.C. (F.C.T.D., no. A-19-93), Wetston, January 10, 1994
  139. S.S.C. v. Namitabar, Parisa (F.C.A., no. A-709-93), Décary, Hugessen, Desjardins, October 28, 1996
  140. Saddouh (Kaddouh), Sabah v. M.E.I. (F.C.T.D., no. IMM-2200-93), Denault, February 2, 1994
  141. Sagharichi, Mojgan v. M.E.I. (F.C.A., no. A-169-91), Isaac, Marceau, MacDonald, August 5, 1993. Reported: Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.)
  142. Serwaa, Akua v. M.C.I. (F.C., no. IMM-295-05), Pinard, December 20, 2005; 2005 FC 1653
  143. Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983
  144. Singh, Tejinder Pal v. M.C.I. (F.C.T.D., no. IMM-5294-97), Muldoon, December 23, 1997
  145. Sinnathamby, Jayasrikanthan v. M.E.I. (F.C.T.D., no. IMM-179-93), Noël, November 2, 1993. Reported: Sinnathamby v. Canada (Minister of Employment and Immigration) (1993), 23 Imm. L.R. (2d) 32 (F.C.T.D.)
  146. Sirin, Hidayet v. M.C.I. (F.C.T.D., no. IMM-5720-93), Pinard, November 28, 1994
  147. Sivapoosam, Sivakumar v. M.C.I. (F.C.T.D., no. IMM-2674-95), Reed, June 19, 1996
  148. Social and Cultural Rights
  149. Soto, Marie Marcelina Troncoso v. M.C.I. (F.C.T.D., no. IMM-3734-01), Tremblay-Lamer, July 10, 2002; 2002 FCT 768
  150. Srithar, Suntharalingam v. M.C.I. (F.C.T.D., no. IMM-158-97), Tremblay-Lamer, October 10, 1997
  151. Sulaiman, Hussaine Hassan v. M.C.I. (F.C.T.D., no. IMM-525-94), MacKay, March 22, 1996
  152. Suvorova, Galina v. M.C.I. (F.C., no. IMM-3447-08), Russell, April 14, 2009; 2009 FC 373
  153. Sztojka, Andras v. M.C.I. (F.C., no. IMM-2005-11), Mosley, October 20, 2011; 2011 FC 1202
  154. Thambirajah, Sathan v. M.C.I. (F.C., no. IMM-382-11), Bédard, October 20, 2011; 2011 FC 1196
  155. Thathaal, Sabir Hussain v. S.S.C. (F.C.T.D., no. A-1644-92), McKeown, December 15, 1993
  156. Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.)
  157. Treskiba, Anatoli Benilov v. M.C.I. (F.C., no. IMM-1999-08), Pinard, January 13, 2009; 2009 FC 15
  158. Universal Declaration of Human Rights
  159. Vaamonde Wulff, Monica Maria v. M.C.I. (F.C., no. IMM-4292-05), Rouleau, June 9, 2006; 2006 FC 725
  160. Valdes, Roberto Manuel Olivares v. M.C.I. (F.C.T.D., no. IMM-1902-97), Pinard, April 24, 1998. Reported: Valdes v. Canada (Minister of Citizenship and Immigration) (1998), 47 Imm. L.R. (2d) 125 (F.C.T.D.)
  161. Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.)
  162. Vasudevan, Prakash v. S.S.C. (F.C.T.D., no. IMM-81-94), Gibson, July 11, 1994
  163. Velluppillai, Selvaratnam v. M.C.I. (F.C.T.D., no. IMM-2043-99), Gibson, March 9, 2000
  164. Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60 (T.D.)
  165. Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85
  166. Warner, Leslie Kervin v. M.C.I. (F.C., no. IMM-4283-10), Zinn, March 23, 2011; 2011 FC 363
  167. Woldeghebrial, Sela Tesfa v. M.C.I. (F.C., no. IMM-3514-10), O’Reilly, February 4, 2011; 2011 FC 126
  168. Xiao, Mei Feng v. M.C.I., (F.C.T.D., no. IMM- 953-00), Muldoon, March 16, 2002; 2001 FCT 195
  169. Xie, Sheng v. M.E.I. (F.C.T.D., no. A-1573-92), Rothstein, March 3, 1994
  170. Ye: M.C.I. v. Ye, Yanxia (F.C., no. IMM-8797-12), Pinard, June 13, 2013; 2013 FC 634
  171. Yoli, Hernan Dario v. M.C.I. (F.C.T.D., no. IMM-399-02), Rouleau, December 30, 2002; 2002 FCT 1329
  172. Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.)
  173. Zefi, Sheko v. M.C.I. (F.C.T.D., no. IMM-1089-02), Lemieux, May 21, 2003; 2003 FCT 636
  174. Zheng, Jian Hua v. M.C.I. (F.C., no. IMM-3781-10), Scott, February 15, 2011; 2011 FC 181
  175. Zheng, Jin Dong v. M.C.I. (F.C.T.D., no. IMM-2415-01), Martineau, April 19, 2002; 2002 FCT 448
  176. Zheng, Jin Xia v. M.C.I. (F.C., no. IMM-3121-08), Barnes, March 30, 2009; 2009 FC 327
  177. Zhu, Long Wei v. M.C.I. (F.C.T.D., no. IMM-2746-00) Muldoon, August 13, 2001
  178. Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.)

Notes

Note 1

For example, the Court has noted that one of the relevant international human rights instruments is the Convention on the Rights of the Child (CRC) and that when determining whether a child claiming refugee status fits the definition of Convention refugee, decision-makers must inform themselves of the distinctive rights recognized in the CRC. It is the denial of these rights which may determine whether or not a child has a well-founded fear of persecution. See Kim, Jae Wook v. M.C.I. (F.C., no. IMM-4200-09), Shore, February 12, 2010; 2010 FC 149. See also the IRB Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, which states at footnote 8 that: “In determining the child's fear of persecution, the international human rights instruments, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child, should be considered in determining whether the harm which the child fears amounts to persecution.” See also the Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution which in Part B sets out the relevant international human rights instruments applicable to the determination of gender-specific forms of persecution.

Return to note 1 referrer

Note 2

Gur, Irem v. M.C.I. (F.C., no. IMM-6294-11), de Montigny, August 14, 2012; 2012 FC 992. See also Antoine, Belinda v. M.C.I. (F.C., no. IMM-4967-14), Fothergill, June 26, 2015; 2015 FC 795, where the PRRA Officer had held that in order to avoid persecution, the applicant must continue to avoid an overtly lesbian lifestyle. The Court held that the expectation that an individual should practice discretion with respect to her sexual orientation is perverse, as it requires the individual to repress an immutable characteristic.

Return to note 2 referrer

Note 3

Sagharichi, Mojgan v. M.E.I. (F.C.A., no. A-169-91), Isaac, Marceau, MacDonald, August 5, 1993, at 2. Reported: Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.); Leave to appeal to the Supreme Court of Canada was denied without reasons on February 17, 1994 [1993] S.C.C.A. No. 461 (QL); Saddouh (Kaddouh), Sabah v. M.E.I. (F.C.T.D., no. IMM-2200-93), Denault, February 2, 1994, where the Court dealt with threats and acts of extortion.

Return to note 3 referrer

Note 4

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 20 Imm. L.R. (2d) 85.

Return to note 4 referrer

Note 5

Ward, ibid., at 733-734. See also Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), at 324-325.

Return to note 5 referrer

Note 6

Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, at 635.

Return to note 6 referrer

Note 7

Chan, ibid., at 635. The majority of the Court decided the case on other grounds and did not rule explicitly on this issue. For a more detailed discussion of the Chan judgment, see Chapter 9, section 9.3.7. With respect to considering Canadian standards or laws see Antonio, Pacato Joao v. M.E.I. (F.C.T.D., no. IMM-1072-93), Nadon, September 27, 1994, at 11-12. See also the UNHCR Handbook, paragraph 60.

Return to note 7 referrer

Note 8

El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994, at 4. The appeal was dismissed by the Federal Court of Appeal: M.C.I. v. El Khatib, Naif (F.C.A., no. A-592-94), Strayer, Robertson, McDonald, June 20, 1996.

Return to note 8 referrer

Note 9

Sagharichi, supra, footnote 3, at 2 (unreported); Saddouh, supra, footnote 3. See also Kwiatkowsky v. Canada (Minister of Employment and Immigration), [1982] 2 S.C.R. 856, at 862 and 863. The Trial Division has also distinguished between persecution and mere unfairness: Chen, Yo Long v. M.C.I. (F.C.T.D., no. IMM-487-94), Richard, January 30, 1995, at 4.

Return to note 9 referrer

Note 10

Sagharichi, supra, footnote 3, at 2, per Marceau J.A. Even though the claimant may not be able to point to an individual episode of mistreatment which could be characterized as persecution, the claimant may still have experienced persecution or have good grounds for fearing persecution: see the discussion of cumulative acts in section 3.1.2. of this chapter, and the discussion of well-founded fear in Chapter 5.

Return to note 10 referrer

Note 11

Nejad, Hossein Hamedi v. M.C.I. (F.C.T.D., no. IMM-2687-96), Muldoon, July 29, 1997, at 2. In the typescript of the Court’s reasons, the first portion of this passage is presented as though it were part of a quotation from Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.); however, the statements in question do not actually appear in that case, and seem instead to have been the words of Muldoon J. himself. On this same theme, see paragraphs 40 and 52 of the UNHCR Handbook. The Court noted in Bayrak, Ibrahim v. M.C.I. (F.C., no. IMM-11458-12), Shore, October 21, 2013; 2013 FC 1056 that certain risks and dangers are even more serious when taking into account the claimants’ age and their vulnerability as a result of the inherent weaknesses associated with being elderly.

Return to note 11 referrer

Note 12

Compare these lines with the affirmation in Ward., supra, footnote 4, at 747, that “the examination of the circumstances should be approached from the perspective of the persecutor”, and with the emphasis placed upon the intent of a law (which may be equated with the intent of the agent of persecution) by Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.), at 552, quoted in Chapter 9, section 9.3.2. (proposition 1). Compare also Zolfagharkhani’s assertion, at 552, that the neutrality of a law is to be judged objectively: see Chapter 9, section 9.3.2. (proposition 2).

Return to note 12 referrer

Note 13

Ward., supra, footnote 4, at 733-734. See excerpt reproduced at pages 1-2 of this chapter.

Return to note 13 referrer

Note 14

Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984. Reported: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.).

Return to note 14 referrer

Note 15

Rajudeen, ibid., at 133-134, per Heald J.A.

Return to note 15 referrer

Note 16

Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.), at 396, per Marceau J.A.

Return to note 16 referrer

Note 17

See also Kadenko, Ninal v. S.G.C. (F.C.T.D., no. IMM-809-94), Tremblay-Lamer, June 9, 1995. Reported: Kadenko v. Canada (Solicitor General) (1995), 32 Imm. L.R. (2d) 275 (F.C.T.D.), rev’d M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Décary, Hugessen, Chevalier, October 15, 1996, where the Trial Division, at 6, considered a dictionary definition of “isolated”, and concluded that, where repeated incidents of harassment, together with physical attacks, had occurred over the course of a year and a half, it was unreasonable to speak of “isolated” acts. (The Court of Appeal reversed the decision on the issue of state protection and did not deal with the persecution findings. Leave to appeal to the Supreme Court of Canada was denied without reasons on May 8, 1997, [1996] C.S.C.R. No. 612 (QL). In Ahmad, Rizwan v. S.G.C. (F.C.T.D., no. IMM-7180-93), Teitelbaum, March 14, 1995, at paragraph 23, the Court distinguished between systematic events and ones that were only periodic.

Return to note 17 referrer

Note 18

Abramov, Andrei v. M.C.I. (F.C.T.D., no. IMM-3576-97), Tremblay-Lamer, June 15, 1998.

Return to note 18 referrer

Note 19

In two decisions, the Trial Division certified questions regarding the need for persistence, the questions being almost identical in the two cases: Murugiah, Rahjendran v. M.E.I. (F.C.T.D., no. 92-A-6788), Noël, May 18, 1993, at 6; and Rajah, Jeyadevan v. M.E.I. (F.C.T.D., no. 92-A-7341), Joyal, September 27, 1993, at 5-6. In Rajah, the question was phrased thus: “Whether ‘persecution’ within the meaning of the Convention Refugee definition requires systematic and persistent acts or whether one or two violations of basic and inalienable rights such as forced labour or beatings while in police detention is enough to constitute ‘persecution’.” However, neither case was heard on appeal. The Federal Court of Appeal granted a motion to dismiss the appeal in Murugiah on April 4, 1997, on the grounds that the appeal was moot (F.C.A., no. A-326-93). In Rajah, the Federal Court of Appeal dismissed an application for an extension of time to file a notice of appeal (February 1, 1995).

Essentially the same question was proposed for certification in Muthuthevar, Muthiah v. M.C.I. (F.C.T.D., no. IMM-2095-95), Cullen, February 15, 1996. Cullen J., declining to certify, said at 5: “I think it is settled law that, in some instances, even a single transgression of the applicant’s human rights would amount to persecution.” See also Gutkovski, Alexander v. S.S.C. (F.C.T.D., no. IMM-746-94), Teitelbaum, April 6, 1995, where at 9, the Court noted: “…the events must be sufficiently serious or systematic to amount to a reasonable fear of persecution.” (emphasis in original). However, note the discussion in Chapter 9, section 9.3.3. regarding “Policing Methods, National Security and Preservation of Social Order”.

Return to note 19 referrer

Note 20

Ranjha, Muhammad Zulfiq v. M.C.I. (F.C.T.D., no. IMM-5566-01), Lemieux, May 21, 2003; 2003 FCT 637, at paragraph 42.

Return to note 20 referrer

Note 21

Sztojka, Andras v. M.C.I. (F.C., no. IMM-2005-11), Mosley, October 20, 2011; 2011 FC 1202.

Return to note 21 referrer

Note 22

Ward, supra, footnote 4, at 732. See also the excerpt from Rajudeen, supra, footnote 14, reproduced in section 3.1.1.2. of this chapter. And see Karaseva, Tatiana v. M.C.I. (F.C.T.D., no. IMM-4683-96), Teitelbaum, November 26, 1997, at paragraphs 10, 14-15, and 17-22. In Molaei, Farzam v. M.C.I. (F.C.T.D., no. IMM-1611-97), Muldoon, January 28, 1998, the Court noted that there must be a nexus between the personal situation of the claimant and the general situation of the country of nationality in which the claimant fears persecution. And in Cetinkaya, Lukman v. M.C.I. (F.C.T.D., no. IMM-2559-97), Muldoon, July 31, 1998, the Court noted that while certain members of the PKK in Turkey may face persecution, it is for the claimant to demonstrate that she falls within that class of individuals who face persecution, as well as to provide the necessary link between her actions and the persecution feared. See also Li, Qing Bing v. M.C.I. (F.C.T.D., no. IMM-5095-98), Reed, August 27, 1999, where the claimant stated, among other things, that the government of China does not provide basic medical services, nor does it allow him an adequate opportunity to earn a living. The Court agreed with the CRDD that there was no nexus between the claimant's hardships and a Convention ground.

Return to note 22 referrer

Note 23

Suvorova, Galina v. M.C.I. (F.C., no. IMM-3447-08), Russell, April 14, 2009; 2009 FC 373.

Return to note 23 referrer

Note 24

Bhatti, Naushaba v. S.S.C. (F.C.T.D., no. A-89-93), Jerome, September 14, 1994. Reported: Bhatti v. Canada (Secretary of State) (1994), 25 Imm. L.R. (2d) 275 (F.C.T.D.).

Return to note 24 referrer

Note 25

Pour-Shariati, Dolat v. M.E.I. (F.C.A., no. A-721-94), MacGuigan, Robertson, McDonald, June 10, 1997, at 4. Reported: Pour-Shariati v. Canada (Minister of Employment and Immigration) (1997), 39 Imm. L.R. (2d) 103 (F.C.A.). Followed in Kanagalingam, Uthayakumari v. M.C.I. (F.C.T.D., no IMM-566-98), Blais, February 10, 1999, where the Court held that the loss of the claimant's father, brother and fiancé at the time when the IPKF governed the security situation in the north of Sri Lanka, was indirect persecution and, therefore, not persecution within the meaning of the definition. The Trial Division certified the following question in Gonzalez, Brenda Yojana v. M.C.I. (F.C.T.D., no. IMM-1092-01), Dawson, March 27, 2002; 2002 FCT 345: “Can a refugee claim succeed on the basis of a well-founded fear of persecution for reason of membership in a particular social group that is a family, if the family member who is the principal target of the persecution is not subject to persecution for a Convention reason?” The appeal to the Federal Court of Appeal [in Gonzalez] was discontinued on February 7, 2003 (F.C.A., no. A-198-02). The concept of “indirect persecution” was considered in Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983, at paragraph 14, where the Court held that “any persecution which the second child Canadian-born infant will experience in China is directly experienced by the parents, and is not ‘indirect persecution’.” For a more detailed discussion of the concept of “indirect persecution”, see Chapter 9, section 9.4.

Return to note 25 referrer

Note 26

Granada, Armando Ramirez v. M.C.I. (F.C., no. IMM-83-04), Martineau, December 21, 2004; 2004 FC 1766.

Return to note 26 referrer

Note 27

This concept of the family as a particular social group was further considered in Ndegwa, Joshua Kamau v. M.C.I. (F.C., no. IMM-6058-05), Mosley, July 5, 2006; 2006 FC 847 at paragraph 11, where the Court held that the claimant was “not just an ‘unwilling spectator of violence’ against other members of his family” (his wife and daughter), as described in Granada, and that the RPD should have considered whether the claimant “himself may be at risk due to the relationship with his wife.”

Return to note 27 referrer

Note 28

Abrego, Apolonio Paz v. M.E.I. (F.C.A., no. A-348-91), Hugessen, Linden, Holland, February 18, 1993.

Return to note 28 referrer

Note 29

See Chapter 4, section 4.7. See also Atwal, Mohinder Singh v. M.C.I. (F.C.T.D., no. IMM-6769-98), Nadon, November 17, 1999, where the Court agreed with the CRDD that there was no nexus between the applicant's claim and a Convention ground as the alleged acts of persecution were the result of personal vengeance and not the result of the claimant's political opinions.

Return to note 29 referrer

Note 30

Cortez, Delmy Isabel v. S.S.C. (F.C.T.D., no. IMM-2482-93), McKeown, December 15, 1993, at 2. See also Pierre-Louis, Edy v. M.E.I. (F.C.A., no. A-1264-91), Hugessen, MacGuigan, Décary, April 29, 1993, at 2 (personal vengeance); Sirin, Hidayet v. M.C.I. (F.C.T.D., no. IMM-5720-93), Pinard, November 28, 1994 (family vendetta); Balendra, Cheran v. M.C.I. (F.C.T.D., no. IMM-1653-94), Richard, January 30, 1995, at 3 (police corruption); and Karaseva, supra, footnote 22, at 14-15, and 17-22 (crimes allegedly with ethnic motivation).

Return to note 30 referrer

Note 31

Alifanova, Nathalia v. M.C.I. (F.C.T.D., no. IMM-5501-97), Teitelbaum, December 11, 1998.

Return to note 31 referrer

Note 32

Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154 (C.A.).

Return to note 32 referrer

Note 33

Mayers, ibid., at 169-170, per Mahoney J.A.

Return to note 33 referrer

Note 34

Diluna, Roselene Edyr Soares v. M.E.I. (F.C.T.D., no. IMM-3201-94), Gibson, March 14, 1995, at 4. Reported: Diluna v. Canada (Minister of Employment and Immigration) (1995), 29 Imm. L.R. (2d) 156 (F.C.T.D.). In an earlier decision, the Trial Division seemed inclined to the view that the abuse involved in the case did constitute persecution: Narvaez v. Canada (Minister of Citizenship and Immigration), [1995] 2 F.C. 55 (T.D.), at 64 and 70-1.

Return to note 34 referrer

Note 35

Resulaj, Blerina v. M.C.I. (F.C., no. IMM-7205-03), Von Finckenstein, September 14, 2004.

Return to note 35 referrer

Note 36

Aros, Angelica Elizabeth Navarro v. M.C.I. (F.C.T.D., no. IMM-4480-96), MacKay, February 11, 1998

Return to note 36 referrer

Note 37

See, for example, Ravji, Shahsultan Meghji v. M.E.I. (F.C.T.D., no. A-897-92), McGillis, August 4, 1994 (the particular harm in question should have been considered by the Refugee Division in its assessment of cumulative acts).

Return to note 37 referrer

Note 38

See, for example: Gomez-Rejon, Bili v. M.E.I. (F.C.T.D., no. IMM-470-93), Joyal, November 25, 1994, at 3 and 8; Chen, supra, footnote 9, at 5; and Karpounin, Maxim Nikolajevitsh v. M.E.I. (F.C.T.D., no. IMM-7368-93), Jerome, March 10, 1995. In Rawji, Riayz v. M.E.I. (F.C.T.D., no. IMM-5929-93), Gibson, November 25, 1994, where crime had befallen the claimant and police had refused to investigate unless bribed, the Court indicated, at 2, that neither persecution nor nexus to a Convention ground was involved. See also Chapter 4, section 4.7. In Kaur, Biba v. M.C.I. (F.C.T.D., no. IMM-305-96), Jerome, January 17, 1997, the claimant had been raped while in detention. The Refugee Division characterized her as a “random victim of violence”, finding no nexus to a Convention ground (and also no well-foundedness), but the Court held that the mistreatment “was a direct consequence of her detention for political reasons” (at 2).

In Mousavi-Samani, Nasrin v. M.C.I. (F.C.T.D., no. IMM-4674-96), Heald, September 30, 1997, the claimants had exposed fraud perpetrated by state officials, and feared retaliation and prosecution. As in Rawji, the Refugee Division had found both persecution and nexus to be lacking, and the Court upheld these findings.

For other cases where the Court upheld the CRDD’s finding of no nexus based on criminality, see: Montoya, Hernan Dario Calderon v. M.C.I. (F.C.T.D., no. IMM-5027-00), Hansen, January 18, 2002; 2002 FCT 63 (family targeted for kidnapping because of their wealth); Bencic, Eva v. M.C.I. (F.C.T.D., no. IMM-3711-00), Kelen, April 26, 2002; 2002 FCT 476 (persecution directly related to criminals seeking to extort money and automobiles); and Yoli, Hernan Dario v. M.C.I. (F.C.T.D., no. IMM-399-02), Rouleau, December 30, 2002; 2002 FCT 1329 (claimant had evidence regarding perpetrators’ identity and criminal activities).

In Zefi, Sheko v. M.C.I. (F.C.T.D., no. IMM-1089-02), Lemieux, May 21, 2003; 2003 FCT 636, at paragraph 41, the Court held that a family or clan involved in a blood feud is not a particular social group, as such revenge killings have nothing to do with the defence of human rights; to the contrary, they constitute a violation of human rights: “Recognition of a social group on this basis would have the anomalous result of according status to criminal activity, status because of what someone does rather than what someone is.”

Return to note 38 referrer

Note 39

See, for example, Dragulin, Constantin Marinescu v. S.G.C. (F.C.T.D., no. IMM-46-94), Rouleau, December 23, 1994, at 3-5; and Njoko, Tubila v. M.E.I. (F.C.T.D., no. A-1698-92), Jerome, January 25, 1995, at 2.

Return to note 39 referrer

Note 40

Ansar, Iqbal v. M.C.I. (F.C.T.D., no. IMM-4124-97), Campbell, July 22, 1998.

Return to note 40 referrer

Note 41

Ward, supra, footnote 4, at 709, 717, 720-1; Chan, supra, footnote 6, per La Forest (dissenting) at 630.

Return to note 41 referrer

Note 42

Bougai, Zoia (a.k.a. Bougai, Zoya) v. M.C.I. (F.C.T.D., no. IMM-4966-94), Gibson, June 15, 1995, at 6.

Return to note 42 referrer

Note 43

Malchikov, Alexander v. M.C.I. (F.C.T.D., no. IMM-1673-95), Tremblay-Lamer, January 18, 1996, at paragraph 26.

Return to note 43 referrer

Note 44

Moudrak, Vanda v. M.C.I. (F.C.T.D., no. IMM-1480-97), Teitelbaum, April 1, 1998.

Return to note 44 referrer

Note 45

Valdes, Roberto Manuel Olivares v. M.C.I. (F.C.T.D., no. IMM-1902-97), Pinard, April 24, 1998. Reported: Valdes v. Canada (Minister of Citizenship and Immigration) (1998), 47 Imm. L.R. (2d) 125 (F.C.T.D.).

Return to note 45 referrer

Note 46

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; Retnem, Rajkumar v. M.E.I. (F.C.A., no. A-470-89), MacGuigan, Décary, Pratte (dissenting), May 6, 1991. Reported: Retnem v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 317 (F.C.A.), at 319; Iossifov, Svetoslav Gueorguiev v. M.E.I. (F.C.T.D., no. A-854-92), McKeown, December 8, 1993, at 2.

Return to note 46 referrer

Note 47

El Khatib, supra, footnote 8, at 3; Nina, Razvan v. M.C.I. (F.C.T.D., no. A-725-92), Cullen, November 24, 1994, at 9. For an examination of cumulative acts in the context of an internal flight alternative, see Chapter 8, section 8.5.1.

In Horvath, Karoly v. M.C.I. (F.C.T.D., no. IMM-4335-99), MacKay, April 27, 2001, referring to Retnem, supra, footnote 46, the Court held that it was an error for the Board to fail to consider the cumulative effect of the treatment suffered by the claimants when that treatment was consistently accepted as being discriminatory and as indicative of serious problems facing Roma in Hungary. Horvath was cited with approval in Keninger, Erzsebet v. M.C.I. (F.C.T.D., no. IMM-3096-00), Gibson, July 6, 2001.

Furthermore, in Bursuc, Cristinel v. M.C.I. (F.C.T.D., no. IMM-5706-01), Dawson, September 11, 2002; 2002 FCT 957, the Court held that, in considering the cumulative effect of incidents, the CRDD must have regard to the whole of the evidence, and not just evidence after the culminating incident.

In Kamran, Mohsin Ali v. M.C.I. (F.C., no. IMM-4760-10), Russell, March 29, 2011; 2011 FC 380, a case involving an Ahmadi from Pakistan, the Court noted that the RPD erred in dealing with incidents sequentially and by compartmentalizing them.

Return to note 47 referrer

Note 48

Mete, Dursun Ali v. M.C.I. (F.C., no. IMM-2509-04), Dawson, June 17, 2005; 2005 FC 840, at paragraph 9. Furthermore, in Devi, Nalita v. M.C.I. (F.C., no. IMM-3994-06), Layden-Stevenson, February 8, 2007; 2007 FC 149, the Court stated, at paragraph 16, that “where the cumulative effect of a number of discriminating acts has the potential to result in a finding of persecution, it is not open to the RPD to place some acts [on] one side of the line [common criminality] and other acts on the other side of the line [harassment/discrimination], without providing some rationale for having done so.”

Return to note 48 referrer

Note 49

Kadhm, Suhad Mohamed v. M.C.I. (F.C.T.D., no. IMM-652-97), Muldoon, January 8, 1998.

Return to note 49 referrer

Note 50

M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Nadon, Décary, Létourneau, March 5, 2008; 2008 FCA 84.

Return to note 50 referrer

Note 51

Mete, supra, footnote 48.

Return to note 51 referrer

Note 52

Rodriguez-Hernandez, Severino Carlos v. S.S.C. (F.C.T.D., no. A-19-93), Wetston, January 10, 1994, at 3.

Return to note 52 referrer

Note 53

Liang, Hanquan v. M.C.I. (F.C. no. IMM-3342-07), Tremblay-Lamer, April 8, 2008; 2008 FC 450. An example of a case where the young age of the claimant (a 13 year old abandoned child) was considered in assessing the cumulative effect of the various harms they faced is M.C.I. v. Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008: 2008 FC 747.

Return to note 53 referrer

Note 54

In M.C.I. v. Hund, Matthew, (IMM-5512-07), Lagacé, February 5, 2009; 2009 FC 121, the Court found that the Board had erred in considering abandonment by the respondents’ own family; targets and attacks by a deputy sheriff; threats made at public meetings by members of their community; and several relocations over a span of four years as cumulative acts of discrimination. The Court noted that the incidents did not fall within the definitions of discrimination and persecution. For example, with reference to abandonment the Court noted that, “abandonment by one’s own family, though an unpleasant occurrence, remains an unfortunate social and familial dynamic faced in the best families regardless of the religious beliefs and political opinions; as such it does not equate to discrimination.”

Return to note 54 referrer

Note 55

Gebre-Hiwet, Tewodros v. M.C.I. (F.C., no. IMM-3844-09), Phelan, April 30, 2010; 2010 FC 482.

Return to note 55 referrer

Note 56

M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Nadon, Décary, Létourneau, March 5, 2008; 2008 FCA 84, at paragraph 48. Leave to appeal to the Supreme Court of Canada was dismissed without reasons on August 14, 2008 (S.C.C. File no. 32602).

Return to note 56 referrer

Note 57

Munderere, ibid. at paragraph 49.

Return to note 57 referrer

Note 58

Munderere, ibid., at paragraph 52.

Return to note 58 referrer

Note 59

Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (C.A.), per Desjardins J.A. at 723, aff’d Chan (S.C.C.), supra, footnote 6. In Mendoza, Elizabeth Aurora Hauayek v. M.C.I. (F.C.T.D., no. IMM-2997-94), Muldoon, January 24, 1996, at 4: the Court said that rape “is a form of brutality especially utilizable for the humiliation and brutalization of women. It is not to be treated lightly”. In Arguello-Garcia, Jacobo Ignacio v. M.E.I. (F.C.T.D., no. 92-A-7335), McKeown, June 23, 1993. Reported: Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.), at 287, sexual abuse was part of the persecution suffered by the male claimant. But see Cortez, supra, footnote 30, where the rape was found not to constitute persecution. See also Chapter 9, section 9.3.3. for further discussion of measures such as beating.

In Iruthayanathar, Joseph v. M.C.I. (F.C.T.D., no. IMM-3619-99), Gibson, June 15, 2000, while following Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), (discussed in Chapter 9, section 9.3.3.), the Court determined that beatings in detention, alone, can constitute persecution. For a case discussing harmful treatments at checkpoints, see Thambirajah, Sathan v. M.C.I. (F.C., no. IMM-382-11), Bédard, October 20, 2011; 2011 FC 1196. The Court noted that being beaten, detained, or made to pay a bribe to a paramilitary group to be released cannot reasonably be characterized as a mere inconvenience or as being vigorously questioned. In Ismayilov, Anar v. M.C.I. (F.C., no. IMM-7263-14), Mactavish, August 26, 2015; 2015 FC 1013, the Court found the RPD’s finding that the treatment the claimant received was “routine questioning” to be perverse. The claimant had been repeatedly arrested and detained because of his religious faith. He was questioned, insulted, beaten, denied food, water and the ability to pray, and forcibly shaved.

Return to note 59 referrer

Note 60

Porto, Javier Cardozo v. M.E.I. (F.C.T.D., no. A-1549-92), Noël, September 3, 1993, at 3. In Warner, Leslie Kervin v. M.C.I. (F.C., no. IMM-4283-10), Zinn, March 23, 2011; 2011 FC 363, a case involving mistreatment based on the claimant’s homosexuality, the Court found unreasonable the RPD’s conclusion that the many incidents of very serious physical violence directed against the claimant and his partner were, even cumulatively, no more than harassment and discrimination. The fact that laws criminalizing homosexual acts are not enforced is relevant to the issue of state protection and not to the issue of whether acts perpetrated by non-state actors amount to persecution.

Return to note 60 referrer

Note 61

Munoz, Alfonso La Rotta v. M.C.I. (F.C.T.D., no. IMM-2207-93), Pinard, November 28, 1994, at 3.

Return to note 61 referrer

Note 62

Gidoiu, Ion v. S.S.C. (F.C.T.D., no. IMM-2907-94), Wetston, April 6, 1995, at 1.

Return to note 62 referrer

Note 63

Antonio, supra, footnote 7, at 11-12, where the offence in question was treason (in the form of espionage and sabotage); Chu, Zheng-Hao v. M.C.I. (F.C.T.D., no. IMM-5159-94), Jerome, January 17, 1996, at 5. See also Singh, Tejinder Pal v. M.C.I. (F.C.T.D., no. IMM-5294-97), Muldoon, December 23, 1997 (supplementary reasons), at paragraphs 9-13.

Return to note 63 referrer

Note 64

Cheung, supra, footnote 5, at 324, per Linden J.A.: “the forced sterilization of women is a fundamental violation of basic human rights. It violates Articles 3 and 5 of the United Nations Universal Declaration of Human Rights.” With respect to sterilization and abortion, see Chapter 9, section 9.3.7., where the one-child policy in China is discussed.

Return to note 64 referrer

Note 65

Chan (S.C.C.), supra, footnote 6, per La Forest J. (dissenting) at 636. The majority in the Supreme Court did not expressly comment on the issue, although Mr. Justice Major appeared to assume that forced sterilization would indeed constitute persecution: see, for example, 658 and 672-673. See also Chan (F.C.A.), supra, footnote 59, per Heald J.A. at 686, and per Mahoney J.A. (dissenting) at 704.

Return to note 65 referrer

Note 66

Lai, Quang v. M.E.I. (F.C.T.D., no. IMM-307-93), McKeown, May 20, 1994, at 2.

Return to note 66 referrer

Note 67

Zheng, Jin Xia v. M.C.I. (F.C., no. IMM-3121-08), Barnes, March 30, 2009; 2009 FC 327. The Court noted that the RPD erred in finding that the requirement to use an IUD is not persecutory because it arises from a law of general application. See also M.C.I. v. Ye, Yanxia (F.C., no. IMM-8797-12), Pinard, June 13, 2013; 2013 FC 634.

Return to note 67 referrer

Note 68

Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.).

Return to note 68 referrer

Note 69

Oyarzo v. Canada (Minister of Employment and Immigration), [1982] 2 F.C. 779 (C.A.), at 782, per Heald J. See also Amayo v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 520 (C.A.); and Asadi, Sedigheh v. M.C.I. (F.C.T.D., no. IMM-1921-96), Lutfy, April 18, 1997, at 3. See also Herczeg, Zsolt v. M.C.I. (F.C., no. IMM-5538-06), Mandamin, October 23, 2007; 2007 FC 2000, at paragraph 20.

Return to note 69 referrer

Note 70

Ammery, Poone v. S.S.C. (F.C.T.D., no. IMM-5405-93), MacKay, May 11, 1994, at 4. Nejad, supra, footnote 11. See Serwaa, Akua v. M.C.I. (F.C., no. IMM-295-05), Pinard, December 20, 2005; 2005 FC 1653, at paragraph 6, where the Court stated that it seemed that stalking would be included in the definition of persecution, depending on the facts of the case. See also Herczeg, Zsolt v. M.C.I. (F.C., no. IMM-5538-06), Mandamin, October 23, 2007; 2007 FC 2000, at paragraph 19.

Return to note 70 referrer

Note 71

Bragagnini-Ore, Gianina Evelyn v. S.S.C. (F.C.T.D., no. IMM-2243-93), Pinard, February 4, 1994, at 2.

Return to note 71 referrer

Note 72

Kicheva, Zorka v. M.E.I. (F.C.T.D., no. A-625-92), Denault, December 23, 1993, at 2.

Return to note 72 referrer

Note 73

Ling, Che Keung v. M.E.I. (F.C.T.D., no. 92-A-6555), Muldoon, May 20, 1993.

Return to note 73 referrer

Note 74

Sulaiman, Hussaine Hassan v. M.C.I. (F.C.T.D., no. IMM-525-94), MacKay, March 22, 1996, at 6-7 and 11 12.

Return to note 74 referrer

Note 75

Namitabar v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 42 (T.D.), at 47; Fathi-Rad, Farideh v. S.S.C. (F.C.T.D., no. IMM-2438-93), McGillis, April 13, 1994, at 4-5. Compare Hazarat, Ghulam v. S.S.C. (F.C.T.D., no. IMM-5496-93), MacKay, November 25, 1994, at 3-4. See the discussion of “Restrictions upon Women” in section 9.3.8.1 of Chapter 9. In S.S.C. v. Namitabar, Parisa (F.C.A., no. A-709-93), Décary, Hugessen, Desjardins, October 28, 1996, the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so." See also Rabbani, Farideh v. M.C.I. (F.C.T.D., no. IMM-2032-96), McGillis, June 3, 1997, at 2.

In two decisions dealing with a Turkish law banning the wearing of headscarves in government places or buildings, the Court distinguished both Namitabar (F.C.T.D.), supra, and Fathi-Rad, supra, as cases dealing with Iranian women who were obliged by Iranian law to wear the Chador: Kaya, Nurcan v. M.C.I. (F.C., no. IMM-5565-03), Harrington, January 14, 2004; 2004 FC 45, at paragraph 18; Aykut, Ibrahim v. M.C.I. (F.C., no. IMM-5310-02), Gauthier, March 26, 2004; 2004 FC 466, at paragraph 40. In Daghmash, Mohamed Hussein Moustapha v. M.C.I. (F.C.T.D., no. IMM-4302-97), Lutfy, June 19, 1998, the Court referred to the punishment of lashing and found no reviewable error with the tribunal’s finding that while abhorrent to Canadian sensibilities, one cannot make the sweeping finding that corporal punishment is automatically persecutory. This case should be read with caution in light of the statement by the Supreme Court of Canada in R. v. Smith, [1987] 1 S.C.R. 1045 that: “…some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment, such as the lash, irrespective of the number of lashes imposed…”

Return to note 75 referrer

Note 76

Maarouf v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 723 (T.D.), at 738. See also Abdel-Khalik, Fadya Mahmoud v. M.E.I. (F.C.T.D., no. IMM-883-93), Reed, January 31, 1994. Reported: Abdel-Khalik v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 262 (F.C.T.D), at 263. But see Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996, where denial of a right to return was found not to be persecutory when related to a law of general application.

Return to note 76 referrer

Note 77

Arafa, Mohammed v. M.E.I. (F.C.T.D., no. A-663-92), Gibson, November 3, 1993, at 4-5. As to the possibility that harsh policies on the granting of citizenship, or limitations imposed upon permanent residents, might constitute persecution, see Falberg, Victor v. M.C.I. (F.C.T.D., no. IMM-328-94), Richard, April 19, 1995, at 4.

Return to note 77 referrer

Note 78

Cheung, supra, footnote 5, at 323; Chan (F.C.A.), supra, footnote 59, at 688, per Heald J.A.; Lai, supra, footnote 66, at 3.

Return to note 78 referrer

Note 79

Lin, Qu Liang v. M.E.I. (F.C.A., no. 93-A-142), Rouleau, July 20, 1993. Reported: Lin v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 208 (F.C.T.D.) , at 211. In Horvath, Laszlo v. M.C.I. (F.C., no. IMM-4326-10), Mandamin, November 23, 2011; 2011 FC 1350, the Court noted that the failure to analyze the limitation on the applicant’s ability to earn a livelihood constitutes a reviewable error.

Return to note 79 referrer

Note 80

Xie, Sheng v. M.E.I. (F.C.T.D., no. A-1573-92), Rothstein, March 3, 1994, at 5-6. Similarly, in Soto, Marie Marcelina Troncoso v. M.C.I. (F.C.T.D., no. IMM-3734-01), Tremblay-Lamer, July 10, 2002; 2002 FCT 768, the Court held that it is not acceptable to suggest that a visually impaired person, who is trained to use a guide dog, should not bring her guide dog to work in order to find employment.

Return to note 80 referrer

Note 81

He, Shao Mei v. M.E.I. (F.C.T.D., no. IMM-3024-93), Simpson, June 1, 1994. Reported: He v. Canada (Minister of Employment and Immigration) (1994), 25 Imm. L.R. (2d) 128 (F.C.T.D.). In contrast, see Vaamonde Wulff, Monica Maria v. M.C.I. (F.C., no. IMM-4292-05), Rouleau, June 9, 2006; 2006 FC 725, at paragraph 23, where the Court held that the claimant’s argument “that she would not be able to resume her teaching job is not sufficient to say that she is unemployable, given her training and work history [in a number of other jobs]”.

Return to note 81 referrer

Note 82

Garcia Luzbet, Yunetsy v. M.C.I. (F.C., no. IMM-57-11), Harrington, July 22, 2011; 2011 FC 923.

Return to note 82 referrer

Note 83

Ramirez, Rosa Etelvina v. S.G.C. (F.C.T.D., no. IMM-1192-94), Rouleau, December 9, 1994, at 5. See also Chen, supra, footnote 9, at 4.

Return to note 83 referrer

Note 84

Lerer, Iakov v. M.C.I. (F.C.T.D., no. IMM-7438-93), Cullen, January 5, 1995, at 5-6.

Return to note 84 referrer

Note 85

Sinnathamby, Jayasrikanthan v. M.E.I. (F.C.T.D., no. IMM-179-93), Noël, November 2, 1993. Reported: Sinnathamby v. Canada (Minister of Employment and Immigration) (1993), 23 Imm. L.R. (2d) 32 (F.C.T.D.) at 36. See also: Mortera, Senando Layson v. M.E.I. (F.C.T.D., no. A-1084-92), McKeown, December 8, 1993; Vasudevan, Prakash v. S.S.C. (F.C.T.D., no. IMM-81-94), Gibson, July 11, 1994; Sivapoosam, Sivakumar v. M.C.I. (F.C.T.D., no. IMM-2674-95), Reed, June 19, 1996, at 4-5; and Srithar, Suntharalingam v. M.C.I. (F.C.T.D., no. IMM-158-97), Tremblay-Lamer, October 10, 1997, at 4-5 (extortion by corrupt military personnel). In Nyota, Katy v. M.C.I. (F.C., no. IMM-4289-10), O’Keefe, June 13, 2011; 2011 FC 675, the Court reiterated that extortion may amount to persecution and it is an error to state that it can never form the basis of a refugee claim.

Return to note 85 referrer

Note 86

Cheung, supra, footnote 5, at 325.

Return to note 86 referrer

Note 87

Modeste, Sherisa Shermika Patricia v. M.C.I. (F.C., no. IMM-9659-12), Russell, December 18, 2013; 2013 FC 1262.

Return to note 87 referrer

Note 88

Ali, Shaysta-Ameer v. M.C.I. (F.C.T.D., no. IMM-3404-95), McKeown, October 30, 1996. Reported: Ali v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 34 (F.C.T.D). The Court distinguished Ali in Gonsalves, Stanley Bernard v. M.C.I. (F.C., no. IMM-3827-10), Zinn, June 7, 2011; 2011 FC 648 when it found that the RPD did not err in finding that the applicant children did not face persecution even though they had to leave school due to discriminatory treatment. While Ali stands for the proposition that where the only way a child can avoid persecution is to cease attending school, asking the child to do so violates his or her right to an education and the child should therefore be found to be a refugee, in this case, the RPD reasonably found that the treatment which forced the applicant children to leave school was discrimination not persecution.

Return to note 88 referrer

Note 89

Thathaal, Sabir Hussain v. S.S.C. (F.C.T.D., no. A-1644-92), McKeown, December 15, 1993, at 2. Appeal to the Federal Court of Appeal dismissed April 16, 1996 (F.C.A., no. A-724-93).

Return to note 89 referrer

Note 90

Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60 (T.D.), at 65.

Return to note 90 referrer

Note 91

Frid, Mickael v. M.C.I. (F.C.T.D., no. IMM-6694-93), Rothstein, December 15, 1994, at 3.

Return to note 91 referrer

Note 92

Zheng, Jian Hua v. M.C.I. (F.C., no. IMM-3781-10), Scott, February 15, 2011; 2011 FC 181.

Return to note 92 referrer

Note 93

Igumnov, Sergei v. M.C.I. (F.C.T.D., no. IMM-6993-93), Rouleau, December 16, 1994, at 3-5. See also Gutkovski, supra, footnote 19, at 2 and 4.

Return to note 93 referrer

Note 94

Kassatkine, Serguei v. M.C.I. (F.C.T.D., no. IMM-978-95), Muldoon, August 20, 1996, at 4. And see Kazkan, Shahrokh Saeedi v. M.C.I. (F.C.T.D., no. IMM-1313-96), Rothstein, March 20, 1997.

Similarly, in BC v. M.C.I. (F.C., no. IMM-4840-02), Gibson, July 4, 2003; 2003 FC 826, the Court held that the denial to the claimant of the opportunity to secure re-employment as a high school teacher, in the absence of her abandonment of a particular religious practice, could amount to serious discrimination amounting to persecution. However, in two decisions, the Federal Court agreed with the RPD’s finding that the Turkish female claimant’s loss of employment in a public institution for wearing a headscarf did not constitute persecution. In Kaya, supra, footnote 75, at paragraph 13, the Court stated that “[l]aws must be considered in their social context.” In this case, the Court found that the Turkish law banning the wearing of any religious dress in government places or buildings was made in furtherance of the government’s secular policies. A similar result was reached in Aykut, supra, footnote 75. See also the discussion under “Restrictions upon Women” in Chapter 9, section 9.3.8.1

Return to note 94 referrer

Note 95

Chen, Shun Guan v. M.C.I. (F.C.T.D., no. IMM-1433-96), Lutfy, January 31, 1997, at 2-3, citing the UNHCR Handbook, paragraph 72.

Return to note 95 referrer

Note 96

Lin, supra, footnote 79, at 211.

Return to note 96 referrer

Note 97

Abouhalima, Sherif v. M.C.I. (F.C.T.D., no. IMM-835-97), Gibson, January 30, 1998. However, in Murugamoorthy, Rajarani v. M.C.I. (F.C., no. IMM-4706-02), O’Reilly, September 29, 2003; 2003 FC 1114, at paragraph 6, the Court stated that whether short-term arrests for security reasons can be considered persecution depends upon the claimant’s particular circumstances, including factors such as the claimant’s age and prior experiences, relying upon Velluppillai, Selvaratnam v. M.C.I. (F.C.T.D., no. IMM-2043-99), Gibson, March 9, 2000. In Kularatnam, Suhitha v. M.C.I. (F.C., no. IMM-3530-03), Phelan, August 12, 2004; 2004 FC 1122, at paragraph 11, the Court set out other factors that could also be relevant, namely, the nature of the location and treatment during detention, and the manner of release from detention.

In Abu El Hof, Nimber v. M.C.I. (F.C., no. IMM-1494-05), von Finckenstein, November 8, 2005; 2005 FC 1515, the Court upheld as reasonable the RPD’s conclusion that the claimant’s two short detentions and interrogation, although humiliating, could be viewed as necessary security measures, given the heightened security in Israel at the time. See also chapter 9, section 9.3.3.

Return to note 97 referrer

Note 98

M.C.I. v. Lin, Chen (F.C.A., no. A-3-01) Desjardins, Décary, Sexton, October 18, 2001. See also Zhu, Long Wei v. M.C.I. (F.C.T.D., no. IMM-2746-00) Muldoon, August 13, 2001.

Return to note 98 referrer

Note 99

In Zheng, Jin Dong v. M.C.I. (F.C.T.D., no. IMM-2415-01), Martineau, April 19, 2002; 2002 FCT 448, the basis for this argument was that minors could not consent to being trafficked. The Court upheld the CRDD’s decision, where the panel assessed the issue of consent with regard to this particular minor claimant, relying upon Xiao, Mei Feng v. M.C.I., (F.C.T.D., no. IMM- 953-00), Muldoon, March 16, 2002; 2001 FCT 195.

Return to note 99 referrer

Note 100

Although the Court stated that the issue was not determinative in this case, in M.C.I. v. Hamdan, Amneh (F.C., no. IMM-7723-04), Gauthier, March 6, 2006; 2006 FC 290, at paragraphs 22-23, the Court commented that the Universal Declaration of Human Rights “is only a declaratory instrument” and that article 16 “deals with the right not to have limitations based on race, nationality or religion imposed on one’s right to marry and to found a family”. The Court agreed with the applicant Minister that it did not “per se create a positive obligation on a State to set up sponsorship processes or to adopt legislation that facilitates the entry of a foreign spouse on its territory.”

Return to note 100 referrer

Note 101

Marshall, Matin v. M.C.I. (F.C., no. IMM-3638-07), O’Keefe, August 14, 2008; 2008 FC 946.

Return to note 101 referrer

Note 102

Treskiba, Anatoli Benilov v. M.C.I. (F.C., no. IMM-1999-08), Pinard, January 13, 2009; 2009 FC 15.

Return to note 102 referrer

Note 103

Woldeghebrial, Sela Tesfa v. M.C.I. (F.C., no. IMM-3514-10), O’Reilly, February 4, 2011; 2011 FC 126.

Return to note 103 referrer


Previous | Table of Contents | Next