- Note 1
Canada (Attorney General) v. Ward,  2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85 at 732;
Chan v. Canada (Minister of Employment and Immigration),  3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (C.A.), at 689-690 and 692-693.
Return to note 1 referrer
- Note 2
M.C.I. v. B344 (F.C. no., IMM-7817-12), Noël, May 8, 2013; 2013 FC 447, at para 37. See also paras 38-41. The Court noted that the mixed motive doctrine was first recognized by the Court of Appeal in
Zhu v. M.E.I., (F.C.A. no., A-1017-91), MacGuigan, Linden, Robertson, January 28, 1994 where the Court of Appeal concluded that the CRDD erred in setting up an opposition between friendship and political motivation as the motives of the claimant, who assisted in smuggling two students involved in the Chinese pro-democracy movement to Hong Kong primarily because of friendship. The motives were “mixed” rather than “conflicting”. It is sufficient if one of the motives is political. The doctrine has since been applied by the Federal Court in many decisions.
Return to note 2 referrer
- Note 3
Kutaladze, Levane v. M.C.I. (F.C., no. IMM-7861-11), Shore, May 23, 2012; 2012 FC 627, the Court held that documentary evidence and testimony required the RPD to conduct a more in-depth analysis of the claimant’s allegation that the reason he was extorted and accused of being a spy was because of his political opinion.
Shahiraj, Narender Singh v. M.C.I. (F.C.T.D., no. IMM-3427-00), McKeown, May 9, 2001 where the Court held that the CRDD erred in finding no nexus because, after arresting and torturing the claimant, the police would release him upon payment of a bribe. The evidence showed that police targeted the claimant based at least partially on his imputed political ties to militants.
Katwaru, Shivanand Kumar v. M.C.I. (F.C., no. IMM-3368-06), Teitelbaum, June 8, 2007; 2007 FC 612, the Court rejected the argument that the RPD failed to consider whether the agent of persecution, an Afro-Guyanese school yard bully had mixed motives (i.e. criminal and racial) for attacking the Indo-Guyanese claimant. Since the RPD concluded that there was no evidence that the claimant’s persecutor was racially-motivated, there was no basis on which to make a determination that there were mixed motives.
Return to note 3 referrer
- Note 4
Alhezma, Lotifya K.Q. v. M.C.I. (F.C., no. IMM-2087-16), Bell, November 24, 2016 (delivered orally on November 17, 2016); 2016 FC 1300, at para 18.
Return to note 4 referrer
- Note 5
Ward, supra, note 1, at 745 cites the UNHCR
Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, September 1979, paragraph 67. As explained in
M.C.I. v. A068 (F.C., no. IMM-8485-12), Gleason, November 19, 2013; 2013 FC 1119, at para 37 “Ward establishes that where the facts support a well-founded fear of persecution based on political opinion, a reviewing court is free to consider that ground even if the parties had framed the issue in the context of membership in a particular social group.”
Singh, Sarbit v. M.C.I. (F.C., no. IMM-1157-07), Beaudry, October 1, 2007; 2007 FC 978, the Court overturned the RPD’s decision that since the claimant did not originally make his claim under section 96, but only under subsection 97(1), there were no grounds for the claim for refugee protection under section 96. The Court found that the claim was not solely based on a matter of revenge. The aspect of the claimant’s story regarding the terrorist organization Babar Khalsa should have been analyzed (F.C., no. IMM-1157-07), Beaudry, October 1, 2007; 2007 FC 978, the Court overturned the RPD’s decision that since the claimant did not originally make his claim under section 96, but only under subsection 97(1), there were no grounds for the claim for refugee protection under section 96. The Court found that the claim was not solely based on a matter of revenge. The aspect of the claimant’s story regarding the terrorist organization Babar Khalsa should have been analyzed under section 96.
Return to note 5 referrer
- Note 6
In Morenakang Mmono, Ruth v. M.C.I. (F.C., no. IMM-4015-12), Phelan, March 5, 2013; 2013 FC 219, the Court noted that while the RPD is not required to make a claimant’s case or advance grounds for a claim that were not raised, the Court of Appeal does require the Board to consider issues that obviously emerge from the evidence.
As noted by the Court of Appeal in Guajardo-Espinoza  F.C.J., no. 797 (FCA), at para 5:
As this Court recently said in Pierre-Louis [sic] v. M.E.I., [F.C.A., no. A-1264-91, April 29, 1993] the Refugee Division cannot be faulted for not deciding an issue that had not been argued and that did not emerge perceptibly from the evidence presented as a whole.[…] Saying the contrary would lead to a real hide-and-seek or guessing game and oblige the Refugee Division to undertake interminable investigations to eliminate reasons that did not apply in any case, that no one had raised and that the evidence did not support in any way, to say nothing of frivolous and pointless appeals that would certainly follow.
Pardo Quitian v. M.C.I., 2020 FC 846, at paras 53-54, the Board erred by failing to consider the applicant’s gender-based claim. While not clearly articulated as a basis of the claim, the documentary evidence confirmed that sexual violence was a feature of the conflict in Colombia, and the Applicant’s testimony was that she was twice raped by members of the Black Eagles looking for her brother.
Return to note 6 referrer
- Note 7
Ward, supra, note 1, at 747. In
Gholami, Abbas v. M.C.I. (F.C., no. IMM-1203-14), O’Reilly, December 16, 2014; 2014 FC 1223, while the Board recognized that based on the documentary evidence Arabs face widespread discrimination in Iran, it determined that because the principal claimant is ethnically Persian, he and the rest of the family would be perceived as being Persian and therefore not persecuted. The Court held that the Board failed to recognize that the applicants would likely be regarded as Arabs in Iran, given their language, upbringing, and family history in Kuwait, where they spoke, worked and attended school in Arabic.
Return to note 7 referrer
- Note 8
Narvaez v. Canada (Minister of Citizenship and Immigration),  2 F.C. 55 (T.D.), at 62, the Court stated: “While the guidelines are not law, they are authorized by subsection 65(3) of the Act, and intended to be followed unless circumstances are such that a different analysis is appropriate.”
Return to note 8 referrer
- Note 9
Gur, Irem v. M.C.I. (F.C., no. IMM-6294-11), de Montigny, August 14, 2012; 2012 FC 992, at para 22 where the Court noted that a Kurdish claimant of the Alevi faith cannot be asked to renounce her faith and language in order to live peacefully. A person cannot be asked to renounce his or her deeply held beliefs or to stop exercising his or her fundamental rights in order to avoid persecution and as a price to pay to live in security.
Antoine, Belinda v. M.C.I. (F.C., no. IMM-4967-14), Fothergill, June 26, 2015; 2015 FC 795, at para 23 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.
V.S. v. M.C.I. (F.C., no. IMM-7865-14), Barnes, October 7, 2015; 2015 FC 1150, the Court held that the immigration officer erred by assuming that the hardship (i.e. risk) confronting the applicant upon return to her country could be easily managed by suppression of her sexual identity. In the Court’s words, that view is, quite simply, insensitive and wrong.
The same principle applies to political opinion: see
Jimmy Sinohe Pimentel v. M.C.I. (F.C., no. IMM-5417-05), Barnes, June 14, 2006, 2006 FC 749, at para 14; and to religion, see:
Mohebbi, Hadi v. M.C.I. (F.C., no. IMM-3755-13), Harrington, February 26, 2014; 2014 FC 182, at para 10.
Return to note 9 referrer
- Note 10
For example, Tamil ethnicity has been recognized as being linked to the ground of race in, among other cases,
M.C.I. v. B377 (F.C. no. IMM-6116-12), Blanchard, May 8, 2013; 2013 FC 320 and
Gunaratnam, Thusheepan v. M.C.I. (F.C., no. IMM-4854-13), Russell, March 20, 2015; 2015 FC 358.
Return to note 10 referrer
- Note 11
Veeravagu, Uthaya Kumar v. M.E.I. (F.C.A., no. A-630-89), Hugessen, Desjardins, Henry, May 27, 1992, at 2.
Return to note 11 referrer
- Note 12
Chace Reveron, Dennys Jesus v. M.C.I., 2020 FC 1114, at paras 28-29.
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- Note 13
Cao, Jieling v. M.C.I. (F.C., no. IMM-1050-16), Bell, December 20, 2016; 2016 FC 1393, at para 17.
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- Note 14
The Supreme Court of Canada pointed out in
R. v. Cook  2 S.C.R. 597, at para 42, that, although the terms “nationality” and “citizenship” are often used as if they were synonymous, the principle of nationality is much broader in scope than the legal status of citizenship. In
M.C.I. v. A25 (F.C., no. IMM-11547-12), Phelan, January 6, 2014; 2014 FC 4, the Federal Court upheld as reasonable a decision of the RPD which granted refugee status, in part, on the basis of the claimant’s “nationality” used in the sense of race/ethnicity, as well as the traditional sense of nationality.
Return to note 14 referrer
- Note 15
Hanukashvili, Valeri v. M.C.I. (F.C.T.D., no. IMM-1732-96), Pinard, March 27, 1997. Although Israel did not recognize the claimants as having Jewish nationality, they were citizens of Israel and as such the CRDD had properly considered the claims as being against Israel, the country of nationality pursuant to section 2(1) of the Act. The Court cited
Abedalaziz, Rami Bahjat Yah v. M.C.I. (F.C., no. IMM-7531-10), Shore, September 9, 2011; 2011 FC 1066, at para 29 when it stated that “nationality” as used in the definitions of Convention refugee and person in need of protection (sections 96 and 97 of the IRPA), means citizenship in a particular country.
Return to note 15 referrer
- Note 16
Soos v. Canada (Citizenship and Immigration), 2019 FC 455, at paras 24-25. The Board failed to support its conclusion that the minor claimants would face persecution because they were “only half Roma.” Their evidence was that they identified as Roma and were identified by others due to appearance, cultural indicators and dress. Implicit in this finding was an expectation that the claimants would hide their ethnic identity. The Court noted that it is trite law that failed claimants cannot be expected to repress an innate characteristic or hide a fundamental part of their identity. See also:
Akpojiyovwi v Canada (Citizenship and Immigration), 2018 FC 745, at para 9.
Return to note 16 referrer
- Note 17
Reul, Jose Alonso Najera v. M.C.I. (F.C.T.D., no. IMM-326-00), Gibson, October 2, 2000, the applicants were a husband and wife and their children. They feared persecution by siblings of the husband, the principal applicant. Both he and his mother were Jehovah’s Witnesses when their mother refused a blood transfusion and died, the siblings accused the principal applicant of causing her death and threatened him and his family. The CRDD found that the fear was based on a family dispute, not on a Convention ground. The Court was satisfied that the applicants had established a subjectively and objectively well-founded fear of persecution in Mexico on the ground of religious belief.
Return to note 17 referrer
- Note 18
Fosu, Monsieur Kwaku v. M.E.I. (F.C.T.D., no. A-35-93), Denault, November 16, 1994. Reported:
Fosu v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 95 (F.C.T.D.), at 97, where the Court adopted the UNHCR
Handbook’s interpretation of freedom of religion.
Chabira, Brahim v. M.E.I. (F.C.T.D., no. IMM-3165-93), Denault, February 2, 1994. Reported:
Chabira v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 75 (F.C.T.D.), where the claimant was persecuted for offending against his girlfriend’s Islamic mores.
Bediako, Isaac v. S.G.C. (F.C.T.D., no. IMM-2701-94), Gibson, February 22, 1995, the Court refers to articles 18(3) and 19(3) of the Universal Declaration of Human Rights which deal with justified restrictions on religious practices.
Mu, Pei Hua v. M.C.I. (F.C., no. IMM-9408-04), Harrington, November 17, 2004; 2004 FC 1613, the claimant’s evidence was that Falun Gong prescribes “group” practice for its practitioners. The Court stated that giving public witness is a fundamental part of many religions and that the decision of the Supreme Court of Canada in
Syndicat Northcrest (see
infra, note 22), expands the concept of public religious acts, not restricts it. The specific manner in which an individual gives effect to their religious beliefs is a valid consideration.
Saiedy, Abbas v. M.C.I. (F.C., no. IMM-9198-04), Gauthier, October 6, 2005; 2005 FC 1367, the applicant, a citizen of Iran, claimed a fear of persecution based on being a Muslim convert to Christianity. The Court upheld the RPD’s finding that regardless of whether he genuinely converted, the applicant’s evidence was that he would be discreet about his conversion and would therefore be of no interest to the authorities according to the documentary evidence. However, in
Jasim, Fawzi Abdulrahm v. M.C.I., (F.C., no. IMM-3838-02), Russell, September 2, 2003; 2003 FC 1017, the Court stated that the officer’s suggestion that the applicant “refrain from proselytizing and practice his faith privately” is not tenable. That is not a choice an individual should have to make.
Mohebbi, supra, note 9, the Court found that the RPD had essentially concluded that the applicant would have to be discreet in Iran. However, the applicant alleged he was an evangelical Christian whose duty it was to spread the Good News of the Gospel. The Court held it was not for the panel to determine how a person should practice his or her religion.
Zhou, Guo Heng v. M.C.I. (F.C., no. IMM-1674-09), de Montigny, November 25, 2009; 2009 FC 1210, the Court noted that the RPD had erred in equating the possibility of religious persecution with the risk of being raided, arrested or jailed. This understanding was limited and did not take into account the public dimension of religious freedom.
Return to note 18 referrer
- Note 19
Zhu, Qiao Ying v. M.C.I. (F.C., no. IMM-589-08), Zinn, September 23, 2008; 2008 FC 1066. See also
Zhang, Zhi Jun v. M.C.I. (F.C., no. IMM-369-09), O’Keefe, January 6, 2010; 2010 FC 9, and
Chen, Yu Jing v. M.C.I. (F.C., no. IMM-3627-09), Mosley, March 5, 2010; 2010 FC 258, which illustrate the same principle. However, in
Li, Chun v. M.C.I. (F.C. no. IMM-984-18), Gleeson, October 2, 2018; 2018 FC 982 the Court upheld an RPD decision rejecting the claim of a Chinese citizen wherein the RPD considered the claimant’s stated reason for not wishing to pursue the practice of his faith in a state-sponsored church, but found the evidence was insufficient to support his stated reason.
Return to note 19 referrer
- Note 20
For example, in Nosakhare, Brown v. M.C.I. (F.C.T.D., no. IMM-5023-00), Tremblay-Lamer, July 6, 2001, the claimant, who converted to Christianity, fled Nigeria because he did not want to belong to the Ogboni cult, as his father did. According to the claimant, the cult engages in human sacrifice and cannibalism. The Court concluded that the Board erred in finding there was no nexus. The kidnapping and beating endured by the claimant were acts carried out by a religious group as a result of the religious beliefs of the claimant. However, in
Oloyede, Bolaji v. M.C.I. (F.C.T.D., no. IMM-2201-00), McKeown, March 28, 2001, the Court concluded that it was open on the evidence for the Board to determine that the claimant had been subjected to cult criminal activity rather than religious persecution. In this case, the claim was on grounds of membership in a particular social group, namely, children of cult groups who refuse to follow in their fathers’ footsteps. The claimant claimed that his life was at risk if he did not join the Vampire cult. He also argued, without success, that he was a Christian and that if he returned to Nigeria he would be forced to engage in cult practices because he would not receive any state protection.
Ajayi, Olushola Olayin v. M.C.I. (F.C., no. IMM-5146-06), Martineau, June 5, 2007; 2007 FC 594, the claimant alleged that her stepmother wanted to circumcise her and her father wanted to force her to participate in an initiation ritual. She also claimed a fear of supernatural powers and beings. The Court held that it was not patently unreasonable to conclude that the claimant had no objective fear of persecution. A person’s fear of magic or witchcraft can be real on a subjective basis, but objectively speaking, the state cannot provide effective protection against magic or witchcraft or against supernatural forces or beings from beyond. The state could concern itself with the actions of those who participate in such rituals but in this case, the claimant testified she did not fear her stepmother or father.
Return to note 20 referrer
- Note 21
Yang, Hui Qing v. M.C.I. (F.C.T.D., no. IMM-6057-00), Dubé, September 26, 2001. In this case, the claimant feared persecution by the authorities in China due to her adherence to Falun Gong beliefs and practices. The Court held that the CRDD should have found Falun Gong to be partly a religion and partly a particular social group and that political opinion was clearly not a ground in this claim. On the basis of the reasoning in
Ward which held that it is the perspective of the persecutor that is determinative, because the government of China considered Falun Gong a religion, religion was the applicable ground. Although a question was certified regarding the scope of the term “religion” used in the Convention refugee definition, no appeal was filed.
Return to note 21 referrer
- Note 22
Syndicat Northcrest v. Amselem,  2 S.C.R. 551; 2004 SCC 47.
Return to note 22 referrer
- Note 23
Kassatkine, Serguei v. M.C.I. (F.C.T.D., no. IMM-978-95), Muldoon, August 20, 1996, at 4.
Return to note 23 referrer
- Note 24
Syndicat Northcrest, supra, note 22, where the Supreme Court of Canada said (at 61) that: “No right, including freedom of religion is absolute.”
Return to note 24 referrer
- Note 25
RAD TB7-01837, Bosveld, May 8, 2017. The decision was identified by the IRB Chairperson as a Jurisprudential Guide on July 18, 2017.
Return to note 25 referrer
- Note 26
Ward, supra, note 1, at 739.
Return to note 26 referrer
- Note 27
Canada (Minister of Employment and Immigration) v. Mayers,  1 F.C. 154 (C.A.).
Return to note 27 referrer
- Note 28
Cheung v. Canada (Minister of Employment and Immigration),  2 F.C. 314 (C.A.).
Return to note 28 referrer
- Note 29
Matter of Acosta, Interim Decision 2986, 1985 WL 56042 (BIA-United States).
Return to note 29 referrer
- Note 30
Yang, supra, note 21, the claimant feared persecution by the authorities in China due to her adherence to Falun Gong beliefs and practices. The Court was of the view that Falun Gong would fall under the second category of “social group” in Ward, as members voluntarily associate themselves for reasons so fundamental to their human dignity that they should not be forced to forsake the association. On the other hand, in
Manrique Galvan, Edgar Jacob v. M.C.I. (F.C.T.D., no. IMM-304-99), Lemieux, April 7, 2000, the claimant alleged to belong to a particular social group, an organization of taxi drivers, whose goal was to protect its members against criminals. The Refugee Division found that the organization did not qualify as a particular social group. After conducting an exhaustive review of the case law on the subject [including
Matter of Acosta (Board of Immigration Appeals – United States) and
Islam (House of Lords – England)], the Court concluded that the Refugee Division had properly assessed the case law in finding that the social group to which the principal applicant belonged did not correspond to any of the categories established in
Ward, in particular the second category, on the ground that the right to work is fundamental but not necessarily the right to be a taxi driver in Mexico City.
Return to note 30 referrer
- Note 31
Ward, supra, note 1, at 739. In
Chekhovskiy, Alexey v. M.C.I. (F.C., no. IMM-5086-08), de Montigny, September 25, 2009; 2009 FC 970, the Court noted that to say that the claimant, as a member of the building contractors was part of a group associated by a former voluntary, unalterable status, would trivialize the notion of a particularly social group, incompatible with the analogous grounds approach developed in the context of anti-discrimination law, and inimical to the whole purpose of Convention refugee protection.
Garcia Vasquez, Fredis Angel v. M.C.I. (F.C., no. IMM-4341-10), Scott, April 19, 2011; 2011 FC 477, the Court found it was reasonable for the RPD to conclude that the claimant’s temporary membership in the armed forces did not rise to the level of an “immutable characteristic” that would be analogous to an anti-discrimination ground.
Alvarez, Luis Carlos Galvin v. M.C.I. (F.C. no. IMM-8496-14), Gleeson, April 11, 2016; 2016 FC 402, the RPD had concluded that being an engineer did not qualify under the third Ward category of particular social group. At para 11, the Court stated that while it was not prepared to say that a claimant’s status as an engineer could never ground a claim based on particular social group, the RPD’s finding in this case was not unreasonable. Employment and occupation have been identified as not ordinarily raising an issue relating to the themes of human rights and anti-discrimination underpinning international refugee protection.
Godoy Cerrato, Dora Miroslava v. M.C.I. (F.C., no. IMM-7141-13), Shore, February 13, 2015; 2015 FC 179, the Court noted that the claimant’s occupation as a police officer in Honduras did not, in and of itself, amount to membership in a particular social group.
In a number of cases, the Court has noted that “Tamil males from Sri Lanka who were passengers on the MV Sun Sea” (or the Ocean Lady) do not constitute a particular social group. While having travelled on the MV Sun Sea (or Ocean Lady) places them in a group defined by a former, unalterable voluntary status, there must be something about such a group related to discrimination or human rights for it to qualify as a particular social group. See for example
M.C.I. v. B380 (F.C., no. IMM-913-12), Crampton, November 19, 2012; 2012 FC 1334;
M.C.I. v. B399 (F.C., no. IMM-3266-12), O’Reilly, March 12, 2013; 2013 FC 260; and
M.C.I. v. A25 (F.C., no. IMM-11547-12), Phelan, January 6, 2014; 2014 FC 4. Note that the claims, depending on the facts of the case, may be grounded on other Convention reasons, for example, race, nationality or political opinion. See
M.C.I. v. A068 (F.C., no. IMM-8485-12), Gleason, November 19, 2013; 2013 FC 1119 for a thorough review of the case law on this topic.
Return to note 31 referrer
- Note 32
The question of whether age falls into the first category seems to depend on the interpretation of “unchangeable.” In
Jean, Leonie Laurore v. M.C.I. (F.C., no. IMM-5860-09), Shore, June 22, 2010; 2010 FC 674, the Court noted that the age of a person is not unchangeable (paragraphs 38-44). However, in
Arteaga Banegas, Cristhian Josue v. M.C.I., (F.C., no. IMM-5322-14), Shore, January 13, 2015, 2015 FC 45, at para 26, Justice Shore cites - with apparent approval - the UNHCR
Guidance Note on Refugee Claims Relating to Victims of Organized Crime in which paragraph 36 ends with the statement: “The immutable character of “age” or “youth” is in effect, unchangeable at any given point in time.”
M.C.I. v.Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008; 2008 FC 474, where the Court upheld a decision of the RPD that found the claimant, “an abandoned child”, to be a member of a particular social group.
Return to note 32 referrer
- Note 33
supra, note 1, at 739.
Return to note 33 referrer
- Note 34
supra, note 1, at 738. Thus the Court held, at 745, that an association, such as the Irish National Liberation Army (INLA), that is committed to attaining political goals by any means, including violence, does not constitute a particular social group, as requiring its members to abandon this objective “does not amount to an abdication of their human dignity.”
Orphée, Jean Patrique v. M.C.I. (F.C., no. IMM-251-11), Scott, July 29, 2011; 2011 FC 966, the Court concluded that the RPD had not erred in determining that the claimant, a member of an Association of taxi drivers, was not a member of a particular social group and that the job of taxi driver does not constitute a characteristic that is innate or fundamental to human dignity, especially because he had admitted that he would change jobs if he had to return to Haiti.
TrujilloSanchez, Luis Miguel v.M.C.I. (F.C.A., no. A-310-06), Richard, Sharlow, Malone, March 8, 2007; 2007 FCA 99, the claimant was employed by the government as an engineer. He also ran a side business that reported violations of signage by-laws to the Bogota city authorities. As a result of this business, he was threatened and abducted twice by the FARC which had demanded that he cease reporting violations. The Federal Court of Appeal agreed that the claimant had an alternative that would eliminate future risk of harm; he could choose to cease operating his side business. The Court went on to state that the claimant’s “freedom to profess his religion, give expression to an immutable personal characteristic, express his political views, etc., was not affected by abandoning his side business. Moreover, [he] was not deprived of his general ability to earn a living”.
Malik v. M.C.I., 2019 FC 955. the Court held that a dispute over an inheritance did not have a nexus to a convention ground.
Losowa Osengosengo, Victorine v. M.C.I. (F.C., no. IMM-4132-13), Gagné, March 13, 2014; 2014 FC 244, at para 20. The claimant was a Franciscan nun from the DRC. The RPD held that she would be safe if she moved to Kinshasa where she could earn a living as a teacher and live with her family. The Court held that the RPD erred and that it was legitimate for the claimant, as a nun, to insist upon living among her congregation as her religious duty and that returning to the DRC as a member of this Franciscan congregation exposed her to probable and unnecessary risks to her livelihood.
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 34 referrer
- Note 35
supra, note 1, at 738-739. Thus the Court held, at 745, that although the claimant’s membership in INLA placed him in the circumstances that led to his fear, the fear itself was based on his action, not on his affiliation.
Return to note 35 referrer
- Note 36
supra, note 1, at 729-733. In
Mason, Rawlson v. S.S.C. (F.C.T.D., no. IMM-2503-94), Simpson, May 25, 1995, the claimant feared being killed by drug “thugs” because he opposed the drug trade, and informed and testified against his brother in criminal proceedings; the Court held that “persons of high moral fibre who opposed the drug trade” were not a particular social group as this was not a pre-existing group whose members were subsequently persecuted.
Manrique Galvan, supra, note 28, the Court noted that the concept of particular social group requires more than a mere association of individuals who have come together because of their victimization.
Return to note 36 referrer
- Note 37
M.C.I. v. Lin, Chen (F.C.A., no. A-3-01), Desjardins, Décary, Sexton, October 18, 2001, the Court, in answer to a certified question, held that the CRDD erred in law when it found that the minor claimant had a well-founded fear of persecution on the grounds that he was a member of a particular social group, “minor child of Chinese family who is expected to provide support for other family members”. There was no evidence to support the CRDD’s finding that the named group was targeted for persecution by parents or other agents of persecution. The claimant’s fear of persecution was not because he was under 18 and expected to provide support for his family. His fear was directed at the Chinese authorities and stemmed from the method chosen to leave China.
Xiao, Mei Feng v. M.C.I. (F.C.T.D., no. IMM-953-00), Muldoon, March 16, 2001 where the claim was based on membership in a particular social group, i.e. children. The alleged persecutors were the snakeheads who smuggled the minor claimant out of China. However, given the evidence showing that snakeheads smuggle any person simply for profit, no nexus could be established between the feared harm and an enumerated ground of persecution.
Return to note 37 referrer
- Note 38
supra, note 1.
Return to note 38 referrer
- Note 39
Chan v. Canada (Minister of Employment and Immigration),  3 S.C.R. 593.
Return to note 39 referrer
- Note 40
ibid, at 672.
Return to note 40 referrer
- Note 41
supra, note 39, at 658 and 672.
Return to note 41 referrer
- Note 42
Chan (S.C.C.), supra, note 39, at 642.
Return to note 42 referrer
- Note 43
Chan (S.C.C.), supra, note 39, at 642.
Return to note 43 referrer
- Note 44
Chan (S.C.C.), supra, note 39, at 643-644, Mr. Justice La Forest commented that having children can be classified as what one does rather than who one is. In context, however, having children makes a person a parent which is what one is.
Return to note 44 referrer
- Note 45
Chan (S.C.C.), supra, note 39, at 644-646.
Return to note 45 referrer
- Note 46
Al-Busaidy, Talal Ali Said v. M.E.I. (F.C.A., no. A-46-91), Heald, Hugessen, Stone, January 17, 1992. Reported:
Al-Busaidyv.Canada (Minister of Employment and Immigration) (1992), 16 Imm. L.R. (2d) 119 (F.C.A.). The concepts of family unity and indirect persecution though related to family, have been clearly distinguished from family as a particular social group within the meaning of the Refugee Convention. See
Pour-Shariati v. Canada (Minister of Employment and Immigration),  1 F.C. 767 (T.D.), at 774-775; and
Casetellanos v. Canada (Solicitor General),  2 F.C. 190 (T.D.). With respect to the concept of indirect persecution, see also Chapter 9.
The characterization of family as a social group relates to persecution that would be directly suffered by a person simply because of his or her membership in a given family. Members of a family are not necessarily members of a particular social group, as discussed in a case about a family engaged in a dispute over land:
Forbes, Ossel O’Brian v. M.C.I. (F.C., no. IMM-5035-11), Hughes, February 27, 2012; 2012 FC 270, at paras 4-5. In
Musakanda, Tavonga v. M.C.I. (F.C., no. IMM-6250-06), O’Keefe, December 11, 2007; 2007 FC 1300, the RPD rejected the claims of the adult claimants yet found the minor claimants to be Convention refugees. The claims of the adult claimants were based on perceived political opinion while the minors’ claims were on the risk of them being recruited by the youth militia in Zimbabwe. There was no evidence before the Board that the family as a unit was being persecuted.
Granada, Armando Ramirez v. M.C.I. (F.C., no. IMM-83-04), Martineau, December 21, 2004; 2004 FC 1766, at para 15 the Court noted that one cannot be deemed to be a refugee only because one has a relative who is being persecuted; that claimants must establish that they are targeted for persecution either personally or collectively. In an earlier case decided by the same judge,
Macias, Laura Mena v. M.C.I. (F.C., no. IMM-1040-04), Martineau, December 16, 2004; 2004 FC 1749, at para 13, the Court held that in order to consider immediate family as a particular social group, a claimant must only prove that there is a clear nexus between the persecution being levelled against one member of the family and that which is taking place against the claimant.
In Tomov, Nikolay Haralam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005; 2005 FC 1527, the applicant, a citizen of Bulgaria, claimed refugee protection based on his membership in his common-law spouse’s Roma family and the assault he faced when he was in her company. The Court noted that family is a valid social group for the purposes of seeking protection. Here, there was a sufficient nexus between the Applicant’s claim and his wife’s persecution. The Board erred in requiring that the Applicant be personally targeted outside of his relationship.
However, for a derivative claim based on family membership to succeed, the family member who is the principal target of the persecution must be subject to persecution for a Convention reason. See
Rodriguez, Ana Maria v. M.C.I. (F.C.T.D., no. IMM-4573-96), Heald, September 26, 1997, where the claimant was threatened with harm because her husband was involved in the mafia’s drug related business. The Court held that the CRDD did not err in holding that the claimant did not belong to a "particular social group" within the meaning of the Convention definition, as her difficulties were due solely to her connection to her spouse who was targeted for non-Convention reasons.
This rationale was followed in
Klinko, Alexanderv.M.C.I. (F.C.T.D., no. IMM-2511-97), Rothstein, April 30, 1998, where the Court held that when the primary victim of persecution does not come within the Convention refugee definition, any derivative Convention refugee claim based on family group cannot be sustained. (Klinko was overturned by the Federal Court of Appeal on other grounds:
Klinko, Alexander v. M.C.I. (F.C.A., no. A-321-98), Létourneau, Noël, Malone, February 22, 2000).
Asghar, Imran Mohammad v. M.C.I. (F.C., no. IMM-8239-04), Blanchard, May 31, 2005; 2005 FC 768 where the son of a policeman feared terrorists his father had arrested.
Ramirez Aburto, Williams v. M.C.I. (F.C., no. IMM-7680-10 and no. IMM-7683-10), Near, September 6, 2011; 2011 FC 1049 the family members of businessmen targeted by criminal gangs for extortion were found to have no nexus.
In Nyembua, Placide Ntaku W v. M.C.I. (F.C., No. IMM-7933-14), Gascon, August 14, 2015; 2015 FC 970, Mr. Nyembua’s claim was based on membership in a particular social group, his son’s family. Though he alleged that his son had tried to expose corruption in his unit in the Congolese army, there was insufficient evidence to support that his son had denounced corruption or that such denunciations stemmed from his son’s political opinion. The Court found it was not unreasonable for the RPD to conclude that the son was being pursued for desertion, not because of his political opinion and that Mr. Nyembua had failed to demonstrate that he would face a risk as a family member of a person fearing persecution.
Return to note 46 referrer
- Note 47
Pizarro, Claudio Juan Diaz v. M.E.I. (F.C.T.D., no. IMM-2051-93), Gibson, March 11, 1994, the first issue addressed by the CRDD was whether the claimant's sexual orientation, of itself, constituted him a member of a particular social group. The CRDD determined that it did not, but the Federal Court held that the question had effectively been put beyond doubt by the Supreme Court of Canada when it reached the opposite conclusion in
supra, note 1.
Return to note 47 referrer
- Note 48
Rodriguez, Juan Carlos Rodriguez v. M.E.I. (F.C.T.D., no. IMM-4109-93), Dubé, October 25, 1994. In the Court’s opinion it was clear that a group voluntarily engaged in union activities was included in
Ward’s second category: "groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association".
Return to note 48 referrer
- Note 49
Sinora, Frensel v. M.E.I. (F.C.T.D., no. 93-A-334), Noël, July 3, 1993, Justice Noël noted that “[I]t is important to note that this group [the poor] has been recognized as a social group by the Federal Court of Appeal.” Unfortunately, there is no reference for the Court of Appeal decision but Justice Noël may have been referring to
Orelien v. Canada (Minister of Employment and Immigration,  1 F.C. 592, where the Court was dealing with a decision of the credible basis panel. The claim in question was based on membership in the group of “poor and disadvantaged people of Haiti”. The argument before the credible basis panel was that all Haitians outside Haiti have a credible basis for claiming to be refugees, not that all Haitians are refugees. The credible basis panel ruled that “it would be absurd to accept the proposition … that all Haitian are refugees, since this would offer international protection to both the victims and the perpetrators of the crimes”. The Court agreed that the tribunal misunderstood the argument: “With respect, it is not axiomatic that nationals of a country who have escaped that country may not have a well founded fear of persecution by reason of their nationality should they be returned.” However, the Court, per Mahoney J., also noted the following: “I am inclined to agree with [the panel] on this point: there is nothing to distinguish the applicant’s claim to be persecuted by reason of membership in that particular social group [the poor and disadvantaged] from their claim to be persecuted by reason of Haitian nationality itself.”
Mia, Samsuv. M.C.I. (F.C., no. IMM-2677-99), Tremblay-Lamer, January 26, 2000, a domestic servant employed at the High Commission for Bangladesh claimed refugee status on the basis of his membership in a particular social group, the poor. After he talked about his experiences on a television show, he and his family in Bangladesh both received threats. It seems that neither the CRDD nor the Court took issue with a particular social group composed of the poor but the Court found it was reasonable for the member to conclude that the claimant was a victim of a personal vendetta rather than persecution linked to that group.
Return to note 49 referrer
- Note 50
Mortera, Senando Layson v. M.E.I. (F.C.T.D., no. A-1084-92), McKeown, December 8, 1993, the claimant was a wealthy person and landlord in the Philippines. The Court rejected the argument that he was part of
Ward’s third category of particular social group. .
Wilcox, Manuel Jorge Enrique Tataje v. M.E.I. (F.C.T.D., no. A-1282-92), Reed, November 2, 1993; in which the Court held that upper middle class Peruvians, who feared extortion against the rich, could not claim to be subject to persecution in the Convention refugee sense.
Karpounin, Maxim Nikolajevitsh v. M.E.I. (F.C.T.D., no. IMM-7368-93), Jerome, March 10, 1995; the Court rejected the argument that the claimant’s status as a financially successful person in the Ukraine, places him in a particular social group defined by voluntary association "for reasons so fundamental to their human dignity they should not be forced to forsake the association."
Montchak, Roman v. M.C.I. (F.C.T.D., no. IMM-3068-98), Evans, July 7, 1999, at para 4, the Court summarizes the state of the law: “There is ample authority in this Court for the proposition that those who have made money in business do not comprise a particular social group, and therefore if they attract the attention of criminals by virtue of their wealth they cannot be said to fear persecution on a Convention ground.”
Return to note 50 referrer
- Note 51
supra, note 1, at 731, the Court said: “The persecution in the ‘Cold War cases’ was imposed upon the capitalists not because of their contemporaneous activities but because of their past status as ascribed to them by the Communist leaders.” Thus, in
Lai, Kai Ming v. M.E.I. (F.C.A., no. A-792-88), Marceau, Stone, Desjardins, September 18, 1989. Reported:
Lai v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.), at 245-246, the Court implicitly accepted that “persons with capitalist backgrounds” constitute a particular social group in the context of China.
Karpounin, supra, note 50, however, the Court stated at 4: “it does not necessarily follow that, merely because the historical underpinning of including the use of the term ‘particular social group’ as found in the Convention, was based on the desire to protect capitalists and independent businessmen fleeing Eastern Bloc persecution during the cold war, should it lead to the conclusion that the [claimant] in this case was persecuted for that very reason.” The CRDD had found that the claimant, an independent businessman, was targeted because of the size of his bank account and not because of his choice of occupation or the state of his conscience.
Étienne, Jacques v. M.C.I. (F.C., no. IMM-2771-06), Shore, January 25, 2007; 2007 FC 64, the Court upheld the RPD’s determination that acquiring wealth or winning a lottery does not constitute membership in a particular social group.
Return to note 51 referrer
- Note 52
Narvaez, supra, note 8, Mr. Justice McKeown referred extensively to
Ward, supra, footnote 1 and to the IRB Chairperson’s Gender Guidelines in finding “women subject to domestic abuse in Ecuador” to constitute a particular social group; the judgment did not address the issue of whether the group can be defined by the persecution feared. (In
Ward, supra, note 1, at 729-733, the Court rejected the notion that “particular social group” could be defined solely by the persecution feared, i.e., the common victimization.)
The reasoning in
Narvaez, supra, note 8, was explicitly adopted in the decision of
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.), where the Court held that the CRDD erred in not finding that “women subject to domestic violence in Brazil” constitute a particular social group.
Hernandez Cornejo, Lisseth Noemi v. M.C.I. (F.C., no. IMM-5751-11), Rennie, March 19, 2012; 2012 FC 325, the Court noted that a man’s relentless pursuit of his ex-girlfriend does not cease to be gender-related persecution simply because that man also harasses her male relatives in an effort to get her back.
Return to note 52 referrer
- Note 53
Sebok, Judit v. M.C.I. (F.C., no. IMM-2893-12), Snider, September 21, 2012, 2012 FC 1107.
Return to note 53 referrer
- Note 54
Vidhani v. M.C.I.,  3 F.C. 60 (T.D.) , where the Court expressly considered the IRB Guideline on
Women Refugee Claimants Fearing Gender-Related Persecution and held that such women have suffered a violation of a basic human right (the right to enter freely into marriage) and would appear to fall within the first category identified in
Ward, supra, note 1.
Return to note 54 referrer
- Note 55
Cius, Ligene v. M.C.I. (F.C., no. IMM-406-07), Beaudry, January 7, 2008; 2008 FC 1, paragraphs 14-21. However, see note 87,
Return to note 55 referrer
- Note 56
Annan v. Canada (Minister of Citizenship and Immigration),  3 F.C. 25 (T.D.), where the Court implicitly seemed to accept that the claim was grounded. See also the IRB Guideline on
Women Refugee Claimants Fearing Gender-Related Persecution, where this case is mentioned in endnote 14.
Return to note 56 referrer
- Note 57
Cheung, supra, note 26, at 322, (“women in China who have one child and are faced with forced sterilization”).
Liu, Ying Yang v. M.C.I. (F.C.T.D., no. IMM-4316-94), Reed, May 16, 1995, where the Court found that the claimant had shown no subjective fear of persecution as a result of the threat of sterilization and there was no evidence she objected to the government policy.
supra, note 39, at 644-646, where La Forest J. (dissenting) formulates the group under
Ward’s second category (see section 4.5. of this Chapter), as an association or group resulting from a “common attempt by its members to exercise a fundamental human right” (at 646), namely, “the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children.” (at 646). For further discussion of China’s one child policy, see Chapter 9, section 9.3.7.
Return to note 57 referrer
- Note 58
Badran, Housam v. M.C.I. (F.C.T.D., no. IMM-2472-95), McKeown, March 29, 1996.
Return to note 58 referrer
- Note 59
Reynoso, Edith Isabel Guardian v. M.C.I. (F.C.T.D., no. IMM-2110-94), Muldoon, January 29, 1996. Mr. Justice Muldoon stated that the claimant’s group was defined by an innate or unchangeable characteristic, they had acquired knowledge which put them in jeopardy. Though the Court acknowledged that this characteristic was one acquired later in life, it was unchangeable.
Return to note 59 referrer
- Note 60
Ali, Shaysta-Ameer v. M.C.I. (F.C.T.D., no. IMM-3404-95), McKeown, October 30, 1996. Reported:
Aliv.Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 34 (F.C.T.D.). The case mentions that the mother of the applicant was found to be a refugee as part of a group of educated women (there is no analysis of this finding) but the issue in the case was whether the Board was wrong in refusing the daughter’s claim because she was an uneducated girl. The Court stated: “I do not agree with this reasoning since it means if [the girl] is returned to Afghanistan, the only way she can avoid being persecuted is to refuse to go to school. Education is a basic fundamental right and I direct the Board to find she should be found to be a Convention refugee.”
Return to note 60 referrer
- Note 61
Selvaratnam, Thevananthini v. M.C.I. (F.C., no. IMM-520-15), Annis, January 19, 2016; 2016 FC 50 (re Tamil female citizen of Northern Sri Lanka).
Return to note 61 referrer
- Note 62
Serrano, Roberto Flores v. M.C.I. (F.C.T.D., no. IMM-2787-98), Sharlow, April 27, 1999. The Court certified a question on this issue but no appeal was filed.
Return to note 62 referrer
- Note 63
Liaqat, Mohammad v. M.C.I. (F.C., no. IMM-9550-04), Teitelbaum, June 23, 2005; 2005 FC 893, the Applicant had been diagnosed with schizophrenia and depression with psychotic features. In the context of the judicial review of a negative PRRA decision, the Applicant submitted that his mental illness was an innate and unchangeable characteristic, notwithstanding that its severity may fluctuate with treatment. The Minister appeared to concede that the Applicant was a member of a particular social group because of his mental illness and the Court was in agreement.
Tadeuszv. M.C.I. (F.C., no. IMM-564-05), Teitelbaum, September 13, 2005; 2005 FC 1234, the Applicant, a 50-year old citizen of Poland, premised his claim on the basis that he is a severe alcoholic who will relapse if returned to Poland, and be committed to a psychiatric hospital as a result of his condition. The Court agreed with the Board’s finding that the Applicant had failed to establish a nexus between the Applicant’s alcoholism and the Convention refugee grounds.
M.C.I. v. Oh, Mi Sook (F.C., no. IMM-5048-08), Pinard, May 22, 2009; 2009 FC 506 the minor claimant was found to be a member of a particular social group, “children of the mentally ill”.
Return to note 63 referrer
- Note 64
A.B. v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-3522-05), Barnes, April 5, 2006; 2006 FC 444, the RPD accepted that the claimant, whose claim of persecution was premised on the stigma, discrimination and mistreatment of persons who suffer from HIV/AIDS, met the requirement for membership in a particular social group, that is, persons fearing persecution because of an unchangeable characteristic. While a nexus to the definition was accepted, the claim was rejected because it failed to meet other elements of the definition. The Court allowed the judicial review but on other issues.
Rodriguez Diaz, Jose Fernando v. M.C.I. (F.C., no. IMM-4652-07), O’Keefe, November 6, 2008, the Court notes that HIV-positive individuals constitute a particular social group.
Mings-Edwards, Ferona Elaine v. M.C.I. (F.C., no. IMM-3696-10), Mactavish, January 26, 2011; 2011 FC 91, where there is an implicit finding that status related to “women infected with HIV” can provide a nexus to the refugee definition.
A.B. v. M.C.I., 2019 FC 1339, The Court implicitly found a nexus between HIV-positive status when finding it was an error for the PRRA officer to fail to address how the Applicant’s HIV-positive status would affect his risk of persecution in the future.
Return to note 64 referrer
- Note 65
Patel, supra, note 32.
Note that in one case age
per se was held not to be an unchangeable characteristic:
Jean, supra, note 32
Woods, Kinique Kemira v. M.C.I. (F.C., no. IMM-4863-06), Beaudry, March 26, 2007; 2007 FC 318, the 12-year-old claimant was afraid of returning to her country because she would be left to fend for herself on the streets and because the child welfare system in Saint Vincent was inadequate to provide for her needs. The Court held that while the claimant’s situation aroused compassion, the fact remained that she did not prove the merits of her claim.
Also note that in
M.C.E. v. M.C.I. (F.C., no. IMM-1116-10), Beaudry, November 16, 2010; 2010 FC 1140, the Court noted that now that the applicant was an adult, the fears she had as a child were no longer relevant.
Moradel v. M.C.I., 2019 FC 404, the Court found it was an error to fail to consider the claimant’s risk under section 96 as a “young woman” and specifically differentiated the minor claimant’s risk from that of her mother, noting that young women were according to the documentation, particularly vulnerable.
Return to note 65 referrer
- Note 66
Martinez Menendez, Mynor v. M.C.I. (F.C., no. IMM-3830-09), Boivin, February 25, 2010; 2010 FC 221, the Court held it was reasonable for the RPD to conclude that the criminal gangs did not constitute a
de facto government and that refusing to pay extortion to them would not be seen as political opinion. Also see
Salazar, Eber Isai Oajaca v. M.C.I. (F.C., no. IMM-2166-17), Kane, January 26, 2018; 2018 FC 83 where the Court found that a risk from refusing “job offers” made by criminal gangs in Guatemala did not constitute a nexus on the ground of imputed political opinion.
Return to note 66 referrer
- Note 67
Ward, supra, note 1, at 746. The word "engaged" was interpreted in
Femenia, Guillermo v. M.C.I. (F.C.T.D., no. IMM-3852-94), Simpson, October 30, 1995. The claimants asserted that their political opinion was that they opposed the existence of corrupt police and advocated their removal and prosecution. They argued that this was an opinion on a matter “in which the machinery of state, government and policy may be engaged.” Madam Justice Simpson concluded that the state is “engaged” in the provision of police services, but not in the criminal conduct of corrupt officers. In her view, that was not conduct officially sanctioned, condoned or supported by the state and therefore, the claimants’ asserted political opinion did not come within the
Ward, supra, footnote 1, characterization of political opinion. The Court of Appeal in
Klinko, supra, footnote 44, rejected the approach followed by the Trial Division in
Femenia as being too narrow an interpretation of
Ward. The Court answered in the affirmative the following certified question:
Does the making of a public complaint about widespread corrupt conduct by customs and police officials to a regional governing authority, and thereafter, the complainant suffering persecution on this account, when the corrupt conduct is not officially sanctioned, condoned or supported by the state, constitute an expression of political opinion as that term is understood in the definition of Convention refugee in subsection 2(1) of the Immigration Act?
Berrueta, Jesus Alberto Arzola v. M.C.I. (F.C.T.D., no. IMM-2303-95), Wetston, March 21, 1996, where the Court overturned the CRDD decision on the basis that the CRDD did not suitably analyze the facts to determine the issue of political opinion. With respect to corruption, the Court stated, at 2, that “[c]orruption is prevalent in some countries. To decry corruption, in some cases, is to strike at the core of such governments’ authority.”
Zhu, Yong Qin v. M.C.I. (F.C.T.D., no. IMM-5678-00), Dawson, September 18, 2001 where the claimant received a subpoena to testify against snakeheads. The Court held that the CRDD erred in its analysis of Mr. Zhu’s sur place claim, construing “political opinion” too narrowly, by asking only whether the claimant’s actions would be perceived by Chinese authorities as contrary to the authorities’ opinion and by limiting the perceived opinion to one which challenges the state apparatus, instead of considering whether the Government of China or its machinery “may be engaged” in the issue of human smuggling.
Return to note 67 referrer
- Note 68
Ward, supra, note 1, at 746.
Return to note 68 referrer
- Note 69
Ward, supra, note 1, at 746. In Sopiqoti, Spiro v. M.C.I. (F.C., no. IMM-5640-01), Martineau, January 29, 2003; 2003 FC 95, the Court held that the claimant’s statement that he had not had any political involvement and was not familiar with the political ideologies in his country did not exempt the panel from its obligation to consider whether the gestures he had made, such as refusing to fire on pro-democracy demonstrators, were considered to be political activities. Even if the agents of persecution acted out of personal or pecuniary motives, the CRDD had to determine whether the government authority had imputed a political opinion to the claimant.
Return to note 69 referrer
- Note 70
Ward, supra, note 1, at 747.
Return to note 70 referrer
- Note 71
Inzunza Orellana, Ricardo Andres v. M.E.I. (F.C.A., no. A-9-79), Heald, Ryan, Kelly, July 25, 1979. Reported:
Inzunza v. Canada (Minister of Employment and Immigration) (1979), 103 D.L.R. (3d) 105 (F.C.A.), at 109. See also
Ismailov, Dilshod v. M.C.I. (F.C., no. IMM-4286-16), Heneghan, September 18, 2017; 2017 FC 837 where the Court stated that it was not sufficient for the RAD to have stated it did not consider the appellant to be an active participant in the Gulen movement, the RAD should have also addressed the question of whether he would be perceived to be an adherent. In
Gopalapillai, Thinesrupan v. M.C.I. (F.C. no. IMM-3539-18), Grammond, February 26, 2019; 2019 FC 228, the Court found the RPD had erred by focusing on whether or not the claimant actually supported the LTTE. This was the wrong question. What mattered was whether the claimant would be perceived as such by the Sri Lankan authorities. In
Losada Conde v. M.C.I., 2020 FC 626, the RPD failed to consider whether the FARC routinely ascribes a political opinion to all who oppose it.
Return to note 71 referrer
- Note 72
Zhou, Zhi Tian v. M.C.I. (F.C., no. IMM-385-12), Zinn, October 30, 2012; 2012 FC 1252.
Return to note 72 referrer
- Note 73
Ni, Kong Qiu v. M.C.I. (F.C. no. IMM-229-18), Walker, September 25, 2018; 2018 FC 948. Similarly, in
Yan, Guiying v. M.C.I. (F.C. no. IMM-3-18), McVeigh, July 25, 2018; 2018 FC 781, at paras 21-22, even though the claimant was wanted for protesting expropriation in China, “she did not point to any evidence before the RPD connecting that charge to political opinion” but that “each case will turn on its facts.” These decisions were followed in obiter in
Huang, Shaoqian v. M.C.I. (F.C. no. IMM-2022-18), Gagné, February 5, 2019; 2019 FC 148.
Return to note 73 referrer
- Note 74
Armson, Joseph Kaku v. M.E.I. (F.C.A., no. A-313-88), Heald, Mahoney, Desjardins, September 5, 1989. Reported:
Armson v. Canada (Minister of Employment and Immigration). (1989), 9 Imm. L.R. (2d) 150 (F.C.A.), at 153. Arocha v. M.C.I., 2019 FC 468.
Return to note 74 referrer
- Note 75
Hilo, Hamdi v. M.E.I. (F.C.A., no. A-260-90), Heald, Stone, Linden, March 15, 1991. Reported:
Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.), at 203.
Return to note 75 referrer
- Note 76
Surajnarain, Doodnauth v. M.C.I. (F.C., no. IMM-1309-08), Dawson, October 16, 2008; 2008 FC 1165.
Return to note 76 referrer
- Note 77
Arocha v. M.C.I., 2019 FC 468. Both the RPD and RAD had found the claimant in this case to be credible regarding his open opposition to the ruling party in Venezuela while he worked for a state-run company, but found that the main incident in the claim, a home invasion, was not politically motivated. Instead of considering whether the claimants had a nexus to a Convention ground, and then analyzing whether any such nexus could result in persecution going forward, the Court found the RAD unreasonably limited the scope of the Applicants’ fears of future persecution based on the one past incident.
Return to note 77 referrer
- Note 78
Hilo, supra, note 75 at 202-203 (re charitable group).
Salvador (Bucheli), Sandra Elizabeth v. M.C.I. (F.C.T.D., no. IMM-6560-93), Noël, October 27, 1994 (re witness to crime committed by paramilitary group);
Marvin, infra, note 82, (re reporting of drug traffickers to authorities);
Kwong, Kam Wang (Kwong, Kum Wun) v. M.C.I. (F.C.T.D., no. IMM-3464-94), Cullen, May 1, 1995 (re defiance of one-child policy) - but compare
Chan (C.A.), supra, note 1, at 693-696, per Heald J.A., and at 721-723, per Desjardins J.A.
Aguirre Garcia, Marco Antonio v. M.C.I. (F.C., no. IMM-3392-05), Lutfy, May 29, 2006; 2006 FC 645, the claimant alleged that he faced retribution due to his political affiliation. The RPD concluded, however, that the difficulties arose as a result of his allegiance to his friends (who were candidates for the PRI), rather than the party itself, noting that the claimant was not a member of the PRI. The Court upheld the RPD’s finding of no nexus.
Return to note 78 referrer
- Note 79
Marino Gonzalez, Francisco v. M.C.I. (F.C., no. IMM-3094-10), Russell, March 30, 2011; 2011 FC 389 at paras 58-60.
Return to note 79 referrer
- Note 80
Colmenares, supra, note 9.
Return to note 80 referrer
- Note 81
Makala, François v. M.C.I. (F.C.T.D., no. IMM-300-98), Teitelbaum, July 17, 1998. Reported:
Makala v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 251 (F.C.T.D.).
Return to note 81 referrer
- Note 82
Kang, Hardip Kaur v. M.C.I. (F.C., no. IMM-775-05), Martineau, August 17, 2005; 2005 FC 1128, at para10: “victims or potential victims of crime, corruption or personal vendettas, generally cannot establish a link between fear of persecution and Convention reasons”.
Calero, Fernando Alejandro (Alejandeo) v. M.E.I. (F.C.T.D., no. IMM-3396-93), Wetston, August 8, 1994, the Court found no nexus for two families fleeing death threats from drug traffickers. ;
Gomez, José Luis Torres v.M.C.I. (F.C.T.D., no. IMM-1826-98), Pinard, April 29, 1999 the claimant was the victim of corrupt government officials responsible for cattle thefts.
In Larenas, Alberto Palencia v. M.C.I. (F.C., no. IMM-2084-05), Shore, February 14, 2006; 2006 FC 159, the Court held that the claimants’ fear of corrupt union officials resulted from criminality, which did not constitute a fear of persecution based on a Convention ground.
Return to note 82 referrer
- Note 83
Rivero, Omar Ramon v. M.C.I. (F.C.T.D., no. IMM-511-96), Pinard, November 22, 1996, where the CRDD was upheld in its finding of no nexus where the claimant was the target of a personal vendetta, thus criminal activity, by a government official.
De Arce, Rita Gatica v. M.C.I. (F.C.T.D., no. IMM-5237-94), Jerome, November 3, 1995. Reported:
De Arce v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 74 (F.C.T.D .) where the claimant testified against her brother-in-law, leading to his conviction for murder. She received threatening phone calls from him and suffered various physical assaults after his release. The Court upheld the Board’s conclusion that she was the victim of a personal vendetta and did not fall within the definition of a Convention refugee.
Xheko, Aida Siri v.M.C.I. (F.C.T.D., no. IMM-4281-97), Gibson, August 28, 1998 the claimants were threatened and assaulted when they tried to reclaim their family which had been confiscated during the Communist regime.
Lara, Benjamin Zunigav.M.C.I. (F.C.T.D., no. IMM-438-98), Evans, February 26, the harassment the claimant suffered was found to be motivated by a personal vendetta which resulted from a corruption investigation his employer had asked him to conduct.
Pena, Jose Ramon Alvaradov.M.C.I. (F.C.T.D., no. IMM-5806-99), Evans, August 25, 2000, the claimant’s girlfriend (now wife) Ms. Ordonez, was granted refugee status on the basis of domestic abuse she suffered at the hands of Mr. Arnulfo. The claimant alleged that Mr. Arnulfo had perpetrated acts of violence against him because of his relationship with Ms. Ordonez. The CRDD concluded that there was no nexus. The Court found that it was reasonably open to the Board to conclude that the cause of the violence against the claimant was the jealousy of a rival for the affections of Ms. Ordonez, not the fact that the claimant was a family member of a person whom Mr. Arnulfo had subjected to gender-based violence.
Regarding blood feuds, in
Zefi, Sheko v. M.C.I., (F.C., no. IMM-1089-02), Lemieux 2003 FCT 636 May 21, 2003, at para 41 Justice Lemieux wrote:
 Revenge killing in a blood feud has nothing to do with the defence of human rights -- quite to the contrary, such killings constitute a violation of human rights. Families engaged in them do not form a particular social group for Convention purposes. 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 (see
Shkabari, Zamir v. M.C.I. (F.C., no. IMM-4399-11), O’Keefe, February 8, 2012; 2012 FC 177, a case where the claimants (distant cousins) feared harm as a result of a blood feud because they had married contrary to Karun, the customary Albanian law that prohibits marriage between cousins in the same blood line, the Court found the claimants to be members of a particular social group due to their association in a social group of individuals that marry contrary to the Karun law that limits the internationally recognized right to marry freely.
Return to note 83 referrer
- Note 84
Barrantes, Rodolfo v. M.C.I. (F.C., no. IMM-1142-04), Harrington, April 15, 2005; 2005 FC 518, the Applicants’ feared persecution by criminals who believed that the principal claimant was a police informant. The Court upheld the RPD’s finding that fear of persecution as a victim of organized crime and a fear of personal vengeance do not constitute a fear of persecution within the meaning of
IRPA, s. 96.
See also, Prato, Jorge Luis Machado v. M.C.I. (F.C., no. IMM-10670-04), Pinard, August 12, 2005; 2005 FC 1088, where the Court upheld the Board’s conclusion that the applicant, who was kidnapped for money, was really a victim of extortion which has no nexus to any of the grounds.
Kang, Hardip Kaur v. M.C.I. supra, note 82 (F.C., no. IMM-775-05), Martineau, August 17, 2005; 2005 FC 1128, the Applicant’s stated fear of her uncle, due to her refusal to sell him property, was found to arise as a result of her individual experience as a victim of crime rather than due to her membership in a particular social group (i.e., gender-related); consequently, no nexus existed.
Mwakotbe, Sarah Gideon v. M.C.I. (F.C., no. IMM-6809-05), O’Keefe, October 16, 2006; 2006 FC 1227, the applicant alleged danger from her estranged husband’s family clan which practiced witchcraft, including ritualistic killings of relatives. The Court upheld the PRRA officer’s determination that the applicant’s in-laws would be motivated by the pursuit of wealth and, therefore, the harm feared was purely criminal in nature. (Under the circumstances, the Court held that it was unnecessary for the officer to have considered whether educated, perceived wealthy members of a family clan that practices witchcraft may be considered a particular social group.)
Return to note 84 referrer
- Note 85
supra, note 46. In
Fernandez De La Torre, Mario Guillermo v. M.C.I. (F.C.T.D., no. IMM-3787-00), McKeown, May 9, 2001, the male claimant claimed a fear of persecution from Mexican criminal elements based on his association with prominent anti-corruption figures. The Court found that it was reasonable for the CRDD to conclude that no nexus existed. The CRDD had reasonably distinguished
Klinko (F.C.A.) in determining that the male claimant was not a political target, given that he had not himself actually denounced corruption.
Zhu, Yong Qin v. M.C.I.,
supra, note 67, the claimant claimed to be a refugee
sur place, because he gave information to the RCMP about Korean and Chinese individuals charged with human smuggling and feared repercussions by the snakeheads in China, notwithstanding the crackdown by the Chinese government against smugglers. The Court held that persons informing on criminal activity do not form a particular social group. However, the CRDD erred in its attempt to distinguish
Klinko (F.C.A.). “Political opinion” should be given a broad interpretation and need not be expressed vis-à-vis the state. The CRDD must consider whether the government of China or its machinery “may be engaged” in human trafficking so as to provide the required nexus to a Convention ground.
Adewumi, Adegboyega Oluseyi v. M.C.I. (F.C.T.D., no. IMM-1276-01), Dawson, March 7, 2002; 2002 FCT 258, the claimant was targeted by cult members after he delivered an anti-cult lecture at the University of Benin where he condemned cult activities and criticized the police force and government for non-prosecution of serious crimes. The CRDD concluded that what the claimant feared was criminal activity. In the Court’s view, since the claimant’s criticism extended to the police and the government, the CRDD erred in its conclusion that there was no nexus.
Yoli, Hernan Dario v. M.C.I. (F.C.T.D., no. IMM-399-02), Rouleau, December 30, 2002; 2002 FCT 1329, at para41 the Court agreed with the CRDD that “Boca” (a soccer fan club involved in criminal activities) threatened the claimant with harm after his refusal to participate in its criminal activities and subsequent disassociation from the group, not because of his political opinion but because he could reveal evidence of the members’ identities and their criminal activity to the authorities.
Return to note 85 referrer
- Note 86
supra, note 1, at 750, the Court stated that not just any dissent to any organization will unlock the gates of asylum; the disagreement has to be rooted in political conviction.
Suarez, Jairo Arango v. M.C.I. (F.C.T.D., no. IMM-3246-95), Reed, July 29, 1996, the Court found there was no political content or motivation when the claimant informed on drug lords. His opposition was to criminal activity.
Marvin, Mejia Espinoza v. M.C.I. (F.C.T.D., no. IMM-5033-93), Joyal, January 10, 1995, at para 16, a case in which the drug trafficking operations that the applicant witnessed and reported involved certain officers of the security forces and members of the government. The Court found that although the action of reporting drug traffickers to the Costa Rican authorities was a sign of the applicant’s integrity, it was not an expression of political opinion; it was more of a criminal nature.
Neri, Juan Carlos Herrera v. M.C.I. (F.C., no. IMM-9988-12), Strickland, October 23, 2013; 2013 FC 1087, the principal claimant called police after hearing gunshots. When the police arrived, he complained that they were slow in responding. He also gave an interview to a reporter restating his dissatisfaction with response time of the police. He claimed protection on the basis that his actions in calling and speaking to the police and speaking to the reporter, communicated to organized crime his “pro-rule of law, anti-corruption political opinion”. He also argued that by making the call, he was reporting a crime, which, given the rampant criminality in Mexico, must be viewed as political act or statement. The RPD found that fear of revenge by criminals for having spoken to the police about the gunfire he heard was not linked to a Convention ground. The Court agreed, finding that unlike
Klinko, the claimant did not intend to make a political act or to put forward a political statement intended to formally denounce corruption of state officials. Rather, his complaint concerned the untimely response of the police to his call. This alone, was not sufficient to demonstrate political conviction.
In Lai, Cheong Sing v. M.C.I. (F.C.A., no. A-191-04), Malone, Richard, Sharlow, April 11, 2005; 2005 FCA 125, the male appellant alleged that, because of his refusal to participate in a political intrigue, he had been wrongly accused by the Chinese government of smuggling and bribery. The Court found that the Board correctly concluded that there was no nexus between the alleged crimes and any political motive; the motive was one of personal gain and the crimes should not be viewed as political. The Court also rejected the appellants’ argument that where a potential prosecution is politically manipulated by the state, then a person subject to such a prosecution can be a refugee by reason of political opinion. The Court “seriously doubted” that the ground of political opinion could be read to include the political opinion of the persecutor towards the claimant’s situation.
Return to note 86 referrer
- Note 87
supra, note 46. The FCA’s decision was rendered in 2000, but a number of earlier cases were decided using similar reasoning. In
supra, note 67, at para5, the claimant had denounced kingpins of a drug cartel in Venezuela and the CRDD had found this not to be an expression of political opinion. However, the Court overturned the decision, stating that in countries where corruption is pervasive throughout the state, to denounce corruption is to undermine a government’s authority.
Bohorquez, Gabriel Enriquez v. M.C.I. (F.C.T.D., no. IMM-7078-93), McGillis, October 6, 1994 the claimant was licensed by the central government to establish a cooperative for social and political reform which raised funds by selling lottery tickets. When he opposed the state lottery which was being operated as a monopoly, he faced threats by corrupt officials. The Court found that the claimant’s opposition to the lottery challenged vested political interests and that the Board erred in failing to consider the evidence concerning his claim on the ground of political opinion.
Vassiliev, Anatoli Fedorov v. M.C.I. (F.C.T.D. IMM-3443-96), Muldoon, July 4, 1997, where the claimant refused to participate in corruption between business people and government officials. Stating that although opposition to criminal activity per se is not political expression, in cases where criminal activity permeates State action, opposition to criminal acts becomes opposition to State authorities, the Court found that the claimant's refusal to transfer bribes to Russian government officials and to launder money was an expression of political opinion.
Mehrabani, Paryoosh Solhjou v.M.C.I. (F.C.T.D., no. IMM-1798-97), Rothstein, April 3, 1998, where the Court upheld the CRDD finding that the claimant's fear of highly placed embezzlers whom he had exposed and against whom he provided evidence, did not ground the claim in political opinion. Denouncing corruption was not seen as a challenge to government activities, as the state (Iran), had taken strong action against some of the corrupt officials.
Murillo Garcia, Orlando Danilov.M.C.I. (F.C.T.D., no. IMM-1792-98), Tremblay-Lamer, March 4, 1999, the claimant witnessed and reported murders committed by government agents. After reviewing the documentary evidence, the Court found no evidence to suggest that a political opinion could be imputed merely as a result of witnessing and reporting a crime. In fact, the evidence showed that the government did not endorse such acts, as agents who committed abuses were prosecuted.
Palomares. Dalia Maria Vieras v. M.C.I. (F.C.T.D., no. IMM-933-99), Pelletier, June 2, 2000, at para 15, Justice Pelletier makes the point that “Even if members of the state apparatus are involved, the fact of making a complaint does not necessarily involve political action, nor does it mean that the complaint will be seen by them as political action.”
In Kouril, Zdenek v. M.C.I. (F.C.T.D., no. IMM-2627-02), Pinard, June 13, 2003; 2003 FCT 728, the Court distinguished
Klinko on the basis that in
Klinko, the political opinion expressed took the form of a denunciation of state officials’ corruption whereas in this case, the claimant had complained about a group of private citizens acting outside the law. Even under
Ward’s broad definition of political opinion, the claimant’s complaint would not constitute an expression of political opinion, especially since the evidence before the Board was that corruption was not endemic in the Czech Republic.
Return to note 87 referrer
- Note 88
supra, note 1, at 745, the Court found that the claimant was not part of a social group since he was the target of highly individualized persecution due to what he did as an individual and not because of any group characteristics or association. This reasoning has been followed in
Suarez, supra, note 86, and in a similar case,
Munoz, Tarquino Oswaldo Padron v. M.C.I. (F.C.T.D., no. IMM-1884-95), McKeown, February 22, 1996., at paras 3 and 7, where the Court held it was reasonable for the CRDD to conclude that the reporting of drug traffickers to expose corruption was a laudable goal but not so fundamental to human dignity that it would place the claimant in a particular social group. See also
Mason, supra, note 36; and
Soberanis, Enrique Samayoa v. M.C.I. (F.C.T.D., no. IMM-401-96), Tremblay-Lamer, October 8, 1996, where “small business proprietors victimized by extortionists acting in concert with police authorities” was found not to be a particular social group.
Valderrama, Liz Garcia v. M.C.I. (F.C.T.D., no. IMM-444-98), Reed, August 5, 1998, counsel defined the claimant’s social group as “successful businessman opposed to corruption and unwilling to pay bribes”. The facts revealed that it was “successful businessmen” who were being targeted, regardless of their opposition to corruption. After considering
Chan the Court held that there was no nexus between the targeted class and a Convention social group.
Lozano Navarro, Victor v. M.C.I. (F.C., no. IMM-5598-10), Near, June 24, 2011; 2011 FC 768, where the Court agreed with the RPD in rejecting the claimants’ argument that reporting to the authorities and refusing to co-operate with the cartel extorting them was an immutable part of the claimants’ past such that they were members of
Ward’s third category of social group.
Palomares, supra, note 87, at para 12, where the Court held that the claimant who witnessed a murder was at risk not because of membership in a particular social group but because of a very personal characteristic, namely, her ability to give evidence which could lead to a prosecution.
Return to note 88 referrer
- Note 89
Lezama, Orlando Rangel v. M.C.I. (F.C., no. IMM-3396-09), Russell, August 11, 2011; 2011 FC 986, at para 54.
Return to note 89 referrer
- Note 90
supra, note 46.
Cen v. Canada (Minister of Citizenship and Immigration),  1 F.C. 310 (T.D.),, the claimant was sexually exploited by corrupt government officials. The Court found she belonged to a particular social group of women subject to exploitation and violation of security of the person.
Reynoso, supra, note 59, the claimant was the target of a corrupt mayor because she had uncovered his illegal activities. The Court held that her knowledge of the mayor’s corruption was an unchangeable characteristic that placed her in
Ward’s first category of social group.
Pardo Quitian, supra, note 6, at paras 50-54, there was uncontradicted evidence that a criminal organization was searching for the applicant’s brother due to his past political involvement, therefore her claim was based, in part, on an imputed political opinion.
For cases in which opposition to corruption was considered political opinion, see
Berrueta, supra, notes 67 and 84; and
Bohorquez, supra, note 87.
Return to note 90 referrer
- Note 91
Cius, Ligene v. M.C.I. ,
supra, note 55. The claimant was perceived as wealthy because he was returning to Haiti after a stay abroad.
Navaneethan, Kalista v. M.C.I. (F.C., no. IMM-51-14), Strickland, May 21, 2015; 2015 FC 664, at para53, the Court noted that it has consistently held that a perception of wealth, without more, is insufficient to qualify claimants as members of a particular social group. In this case, the claimant alleged he would be perceived as wealthy because he had family in Canada.
It is important to exercise caution in applying
supra, which concerns a claimant returning to Haiti after a stay abroad. The Court states, at para 21, that “people returning to Haiti after a stay abroad do not constitute a particular social group within the meaning of section 96 of the Act”, but see
Ocean, Marie Nicole v. M.C.I., (F.C., no. IMM-5528-10), Lemieux, June 29, 2011; 2011 FC 796 where the returnee from abroad was a woman claiming to fear gender-related persecution. The Court upheld the RPD’s rejection of her claim but the reason it did so was that the claimant’s testimony made it clear that the basis of her fear was different from a fear of persecution because she belonged to the particular social group of “Haitian women returning to that country after a prolonged absence and fearing being raped because of their gender.” (at para18)
Return to note 91 referrer
- Note 92
Soimin, Ruth v. M.C.I. (F.C., no. IMM-3470-08), Lagacé, March 4, 2009; 2009 FC 218.
Return to note 92 referrer
- Note 93
Dezameau, Elmancia v. M.C.I. (F.C. no., IMM-4396-09), Pinard, May 27, 2010; 2010 FC 559.
Return to note 93 referrer
- Note 94
Josile, Duleine v. M.C.I. (F.C., no. IMM-3623-10, Martineau, January 17, 2011; 2011 FC 39.
Return to note 94 referrer
- Note 95
R. v. Osolin  4 S.C.R. 595;
R. v. Seaboyer  2 S.C.R. 577;
R. v. Lavalle  1 S.C.R. 582. In
Belle, Asriel Asher v. M.C.I. (F.C., no. IMM-5427-11), Mandamin, October 10, 2012; 2012 FC 1181, the Court, relying on
Osolin, found that
the RPD erred in concluding that the sexual assault inflicted on the minor applicant was not gender violence simply because it was retaliation by a gang member not inflicted within the context of a domestic relationship.
Return to note 95 referrer
- Note 96
For example, in
Nel, Charl Willem v. M.C.I. (F.C., no. IMM-4601-13), O’Keefe, September 4, 2014; 2014 FC 842, the Court noted that rape does not become a gender-neutral crime merely because all people in the country face some risk of other types of violence.
Return to note 96 referrer
- Note 97
Mancia, Veronica Margarita Santos v. M.C.I. (F.C., no. IMM-148-11), Snider, July 28, 2011; 2011 FC 949. The Court gives as an example, “if a claimant’s attackers robbed and attacked her, she would have to satisfy the Board that the robbery was not the motive. Otherwise, a man in her situation (even if he, too, had been raped) would not receive protection but would face the same risk of attack.” It is important to note, however, the context in which the Court upheld the Board’s decision that the claim was not gender-based. The claimant’s evidence and oral testimony strongly indicated that she was targeted because of her relationship to her brother, and the reason the MS 18 targeted her brother was because of his perceived wealth.
Return to note 97 referrer
- Note 98
Salibian v. Canada (Minister of Employment and Immigration),  3 F.C. 250 (C.A.).
Return to note 98 referrer
- Note 99
Salibian, supra, note 98, per Décary J.A.
Return to note 99 referrer
- Note 100
Salibian, supra, note 98, per Décary, J.A.; Hathaway, James C.,
The Law of Refugee Status, (Toronto: Butterworths, 1991), page 97.
Return to note 100 referrer
- Note 101
Rizkallah, Bader Fouad v. M.E.I. (F.C.A., no. A-606-90), Marceau, MacGuigan, Desjardins, May 6, 1992. Reported:
Rizkallah v. Canada (Minister of Employment and Immigration) (1992), 156 N.R. 1 (F.C.A.).
Return to note 101 referrer
- Note 102
Rizkallah, supra, note 101, per MacGuigan J.A.
Return to note 102 referrer
- Note 103
Abdulle, Sadia Mohamed v. M.E.I. (F.C.T.D., no. A-1440-92), Nadon, September 16, 1993. Hassan, Jamila Mahdi v. M.E.I. (F.C.A., no. A-757-91), Isaac, Marceau, McDonald, August 25, 1994. Reported:
Hassan v. Canada (Minister of Employment and Immigration) (1994), 174 N.R. 74 (F.C.A.). A claimant's status as a Tamil male from the north of Sri Lanka is simply not enough, on its own, to establish a well-founded fear of persecution:
Subramaniam, Suresh v. M.C.I. (F.C., no. IMM-5129-04), O'Reilly, May 12, 2005; 2005 FC 684 at para 7.
Return to note 103 referrer
- Note 104
Civilian Non-Combatants Fearing Persecution in Civil War Situations, issued by the IRB Chairperson pursuant to section 65(3) of the Immigration Act, on March 7, 1996, as continued in effect by the Chairperson on June 28, 2002 under the authority found in section 159(1)(h) of the
Immigration and Refugee Protection Act.
Return to note 104 referrer
- Note 105
Perhaps the most clear-cut adopting of a comparative approach is found in
Isa, Sharmarka Ahmed v. S.S.C. (F.C.T.D., no. IMM-1760-94), Reed, February 16, 1995.
Many if not most civil war situations are racially or ethnically based. If racially motivated attacks in civil war circumstances constitute a ground for convention refugee status, then, all individuals on either side of the conflict will qualify. The passages quoted by the Board from [paragraph 164 of] the United Nations Handbook … indicates that this is not the purpose of the 1951 Convention.
Isadecision was cited approvingly in
Ali, Farhan Omar v. M.C.I. (F.C.T.D., no. A-1652-92), McKeown, June 26, 1995. Mr. Justice McKeown did not refer to any particular passage in
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 Trial Division certified the following question: “Are refugee claimants excluded from the definition of Convention refugee if all groups in their country, including the group of which they are members, are both victims and perpetrators of human rights violations in the context of civil war?” See,
infra, note 13.
Return to note 105 referrer
- Note 106
Requiring a worse predicament might mean any one of several things. To succeed, a claimant might have to establish: (i) that the claimant's level of risk is greater than the risk level of persons in other groups, or (ii) that the claimant's risk level is greater than the risk level of other persons in the claimant's own group; or (iii) that the claimant is at risk of suffering harm greater than that which threatens others.
Regarding (i), see
Siad, Dahabo Jama v. M.E.I. (F.C.T.D., no. 92-A-6820), Rothstein, April 13, 1993. Reported: Siad v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 6 (F.C.T.D.); and
Omar, Suleiman Ahmed v. M.C.I. (F.C.T.D., no. A-1615-92), McKeown, February 7, 1996. Regarding (ii), see
Hassan, supra, note 103.
Return to note 106 referrer
- Note 107
The claimant’s group must be one which is definable in terms of a Convention characteristic.
Return to note 107 referrer
- Note 108
Salibian, supra, note 98, points out that there may be a nexus in a civil war context.
Rizkallah, supra, note 101, may be seen as adding to
Salibian little more than a reminder that nexus may also be absent in such a situation. Simple political instability does not make for a well-founded fear of persecution:
Del BustoEzeta, Octavio Alberto v. M.C.I. (F.C.T.D., no. IMM-2021-95), Cullen, February 15, 1996, wherethe claimant's difficulties were a result of the unsettled and dangerous political climate in Peru, rather than being linked to a Convention ground. In
Khalib, Amina Ahmed v. M.E.I. (F.C.T.D., no. A-656-92), MacKay, March 30, 1994. Reported:
Khalib v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 149 (F.C.T.D.),the claimants' home area, in which the claimants' Issaq clan predominated, had been sown with mines by the former Somali government, allegedly with the intention of harming Issaqs. Many mines remained, and the claimants feared injury. The Refugee Division held that the danger was one faced indiscriminately by all people in the area; and in upholding the decision, the Court noted that while Issaqs may have been the majority, the danger was nevertheless faced by all.
Return to note 108 referrer
- Note 109
Canada (Attorney General) v. Ward,  2 S.C.R. 689, per La Forest J., “The examination of the circumstances should be approached from the perspective of the persecutor, since that is determinative in inciting the persecution.”
Return to note 109 referrer
- Note 110
Ali, Shaysta-Ameer v. M.C.I. (F.C.A., no. A-772-96), Décary, Stone, Strayer, January 12, 1999.
Return to note 110 referrer
- Note 111
Supra, note 104.
Return to note 111 referrer
- Note 112
Fi v. Canada (Minister of Citizenship and Immigration),  3 F.C.R. 400; 2006 FC 1125, at para 19.
Return to note 112 referrer
- Note 113
Bhatti, Naushaba v. S.S.C. (F.C.T.D., no. A-89-93), Jerome, September 14, 1993. Reported:
Bhatti v. Canada (Secretary of State). (1994), 25 Imm. L.R. (2d) 275 (F.C.T.D.), at 278-279.
Return to note 113 referrer
- Note 114
Pour-Shariati, supra,note 46. Rothstein J. certified a question as to whether indirect persecution constitutes a basis for a claim.
Return to note 114 referrer
- Note 115
Casetellanos, supra, note 46.
Return to note 115 referrer
- Note 116
ibid. On the other hand, in
Nina, Razvan v. M.C.I. (F.C.T.D., no. A-725-92), Cullen, November 24, 1994, the Court, seems to have considered the mistreatment of the child, who was kidnapped in order to put pressure on his father, to be persecution of the father. In
Hashmat, Suhil v. M.C.I. (F.C.T.D., no. IMM-2331-96), Teitelbaum, May 9, 1997, Mr. Justice Teitelbaum noted that earlier cases had rejected the principle of indirect persecution. However, he indicated that, where the Refugee Division was dealing with “the separate issue” of whether the claimant would undergo undue hardship in journeying to a potential internal refuge (this issue being a subset of the “reasonableness” branch of the IFA test), relevance attached to the potential hardship of the wife and daughter who would accompany him on the journey: at page 5. In two Sri Lanka IFA cases the issue of indirect persecution was considered. In
Jeyarajah, Vijayamalini v. M.C.I. (F.C.T.D., no. IMM-2473-98), Denault, March 17, 1999, it was noted that a person is not a refugee simply because a family member (husband) is persecuted. However, in
Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983, 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'.” But see
Dombele, Adelina v. M.C.I. (F.C.T.D., no. IMM-988-02), Gauthier, February 26, 2003; 2003 FCT 247 where the CRDD determined the claimant's husband to be a refugee, but not the claimant or her daughters. The Court held that the panel was right in finding that the persecution affecting the claimant's husband and which could affect the claimant and her daughters was indirect persecution, thus not persecution within the meaning of the Convention (Pour-Shariati).
Return to note 116 referrer
- Note 117
Pour-Shariati, Dolat v. M.E.I. (F.C.A., no. A-721-94), MacGuigan, Robertson, McDonald, June 10, 1997. Reported:
Pour-Shariati v. Canada (Minister of Employment and Immigration) (1997), 39 Imm. L.R. (2d) 103 (F.C.A.); affirming  1 F.C. 767 (T.D.).
Return to note 117 referrer
- Note 118
An appropriate case was found in
Tomov, Nikolay Harabam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005; 2005 FC 1527. The Court held that it is not enough to point to the persecution suffered by family members if it is unlikely to affect the claimant directly. Here, as a result of his common-law relationship with his Roma spouse, the claimant would be directly at risk as long as they remain together in a marital relationship.
Iraqi v. M.C.I., 2019 FC 1049. In this case, the Applicants were stateless Palestinian's whose country of former habitual residence was the UAE. Their father had been deported from the UAE and the Applicants argued that this was indirect persecution. The Court rejected this argument stating that the person claiming refugee status must have a well-founded fear of persecution and not merely be the unwilling spectators of the persecution of others.
Return to note 118 referrer
- Note 119
Cetinkaya, Lukman v. M.C.I. (F.C.T.D., no. IMM-2559-97), Muldoon, July 31, 1998.
Return to note 119 referrer
- Note 120
A claim based on indirect persecution may also be distinguished from a claim based on (direct) persecution by reason of membership in a particular social group which consists of a certain family. In
Kaprolova, Elena v. M.C.I. (F.C.T.D., no. IMM-388-97), Teitelbaum, September 25, 1997, judicial review was granted because the Refugee Division had mistaken a social-group claim for an indirect-persecution claim. In
Ndegwa, Joshua Kamau v. M.C.I. (F.C., no. IMM-6058-05), Mosley, July 5, 2006; 2006 FC 847, the Court held that the Board erred by treating the case as one of indirect persecution. The claimant was not just an unwilling spectator of violence against other family members. He may be at personal risk due to his membership in the family. See also Chapter 4, section 4.5.
Return to note 120 referrer
- Note 121
supra, note 117;
supra, note 46; and
Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998. In
Shaikh, Sarwar v. M.C.I. (F.C.T.D., no. IMM-2489-98), Tremblay-Lamer, March 5, 1999, following
Dawlatly, the Court held that the principle of family unity has not been incorporated in the definition of Convention refugee. There are other means in the
ImmigrationAct, such as s.46.04(1) of ensuring that dependents of Convention refugees are granted permanent residence. See also
Serrano, Roberto Flores v. M.C.I. (F.C.T.D., no. IMM-2787-98), Sharlow, April 27, 1999 where it was held that a family connection is not an attribute requiring Convention protection in the absence of an underlying Convention ground for the claimed persecution.
Return to note 121 referrer
- Note 122
Akinfolajimi, Adebimpe Joyce v. M.C.I. (F.C. no. IMM-5067-17), Gleeson, July 12, 2018; 2018 FC 722. Also see
Douillard, Kerlange v. M.C.I. (F.C. no. IMM-4443-18), LeBlanc, March 29, 2019; 2019 FC 390, and
Eustache, Julyssa Ann Lynn v. M.C.I. 2020 FC 1140.
Return to note 122 referrer
- Note 123
Chavez Carrillo, Diego Antonio v. M.C.I. (F.C., no. IMM-3170-12), Noël, October 22, 2012; 2012 FC 1228. See also
El Achkar, Nasri Ibrahimv. M.C.I. (F.C., no. IMM-5768-12), Strickland, May 6, 2013; 2013 FC 472, where the Court noted that persecution against one family member does not automatically entitle all other family members to be considered refugees.
Return to note 123 referrer
- Note 124
Gribovskaia, Elena v.M.C.I. (F.C., no. IMM-5848-04), Rouleau, July 11, 2005; 2005 FC 956.
Return to note 124 referrer
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