Chapter 4 - Grounds of persecution - Nexus

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Table of Contents

  1. 4.1. Generally
  2. 4.2. Race
  3. 4.3. Nationality
  4. 4.4. Religion
  5. 4.5. Particular social group
  6. 4.6. Political opinion
  7. 4.7. Victims of criminality and nexus to grounds
  8. Table of cases

4. Grounds of persecution - Nexus

4.1. Generally

The definition of a Convention refugee states that a claimant's fear of persecution must be "by reason of" one of the five enumerated grounds - that is race, religion, nationality, membership in a particular social group and political opinion. There must be a link between the fear of persecution and one of the five grounds.Note 1

The motivation for persecution may involve more than just one ground or factor. If at least one of the motives for persecution can be related to a Convention ground, the necessary link is established. What is referred to as “mixed motive doctrine” has been explained as follows:

[…] If one of the motivations of the agent of persecution is race but only in combination with another factor, how could that not be sufficient to meet the requirements of section 96 of the IRPA? After all, section 96 of the IRPA as written, is not to be interpreted in a narrow restrictive fashion: its purpose, as outlined, is to address fear of persecution and to protect any person who suffers from persecution based on race, religion, nationality, membership in a particular social group or political opinion.[…]Note 2

In other words, the necessary nexus can be found when one (or more) of the Convention grounds is a contributing factor for persecution. For example, extortionists, whose motive is criminal, may target persons whose race, religion or imputed political opinions make them less likely to be able to access protection.Note 3

The relevant questions in analyzing s. 96 and s. 97 of IRPA are different. In particular, in AlhezmaNote 4 the Court noted that the comparative analysis that may be done for s. 97 is not part of the analysis for persecution based on a Convention ground:

It is evident […] that the RPD, in its section 96 analysis, sought a degree of personal risk to the claimant which exceeded the risk to Palestinians in general. Such an approach is appropriate to a section 97 analysis. The question is not whether [the claimant] is more at risk than anyone else, but whether the persecution she would face upon returning to the West Bank is based upon a Convention ground, such that she merits refugee protection.

It is for the Refugee Protection Division to determine the ground, if any, applicable to the claimant's fear of persecutionNote 5. This is consistent with the overall obligation of the Refugee Division to determine whether the claimant is a Convention refugee. If a claimant identifies the ground(s) which he or she thinks are applicable to the claim, the Refugee Division is not limited to considering only those grounds and must consider the grounds of the definition as raised by the evidence in making their determinationNote 6. However, once the Refugee Division has found that the claimant's fear of persecution is by reason of one of the grounds it is not necessary to go on to consider all of the other grounds.

When determining the applicable grounds, the relevant consideration is the perception of the persecutor. The persecutor may perceive that the claimant is a member of a certain race, nationality, religion, or particular social group or holds a certain political opinion and the claimant may face a reasonable chance of persecution because of that perception. This perception may not conform to the real situation.Note 7

Reference should be made to the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution issued by the Chairperson pursuant to section 65(3) of the Immigration Act, updated November 25, 1996, as continued in effect on June 28, 2002 under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act for an analysis of the grounds as they relate to gender-related persecution.Note 8

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 9

4.2. Race

There is currently no Federal Court jurisprudence that provides a detailed analysis of this ground of persecution. Reference should be made to the UNHCR Handbook, at paragraphs 68 to 70, for a description of this ground. According to the Handbook, "race … has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as 'races' in the common usage." (paragraph 68)Note 10

The Court of Appeal has said that where race is one of the defining elements of a group to which the claimant belongs (and fears persecution on account of) then the ground of persecution is race. It is not necessary to look at other grounds.Note 11

It is an error for the Board not to consider the issue of whether a claimant has become a “soft target” for persecution at the hands of criminals because of police racism against the claimant’s group.Note 12

4.3. Nationality

This ground is discussed in the UNHCR Handbook at paragraphs 74 to 76. The Handbook points out that "nationality" in this case encompasses not only "citizenship" but it refers also to ethnic or linguistic groups.Note 13 According to the Handbook this ground may overlap with race.

The Court in Hanukashvili,Note 14 citing Lorne Waldman, noted the difference between "nationality" as a ground and "nationality" meaning citizenship. When used as one of the five grounds, “nationality” does not mean the same thing as “citizenship”; however it has the same meaning as citizenship when used in the definition of “Convention refugee” under subsection 2(1) of the Immigration Act or section 96 of the Immigration and Refugee Protection Act.

4.4. Religion

Persecution by reason of a claimant's religion may take many forms.Note 15 Freedom of religion includes the right to manifest the religion in public, or private, in teaching, practice, worship and observance.Note 16 In the context of claims made by Chinese Christians, the Federal Court has rejected the proposition that a claimant's religious needs can be met in a state sanctioned church. The RPD must assess a claimant's reason for not wishing to attend a state sponsored church, namely that the state sanctioned church is beholden to government, whereas the underground church places God first. It is not up to the panel to determine how and where a claimant should practice his or her faith.Note 17 Religion itself can take different manifestations.Note 18 As is the case with the other Convention refugee grounds, it is the perception of the persecutor that is relevant.Note 19

The Supreme Court of Canada, in the context of a Charter case involving freedom of religion, defined religion as follows:

Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual's spiritual faith and integrally linked to one's definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.Note 20

The Federal Court Trial Division in KassatkineNote 21 considered the case of a religion which has public proselytizing as one of its tenets. In this case, proselytizing was contrary to the law. The Court stated:

A law which requires a minority of citizens to breach the principles of their religion . . . is patently persecutory. One might add, so long as these religious tenets are not unreasonable as, for example, exacting human sacrifice or the taking of prohibited drugs as a sacrament.Note 22

There have been cases dealing with the issue of persecution of members of the Ahmadi religion in Pakistan and the application of Ordinance XX. A decision of the RAD on this topic has been identified as a Jurisprudential Guide (JG).Note 23 For a full discussion of the JG and the jurisprudence on the nature of the enforcement of Ordinance XX see Chapter 9, section 9.3.8.2.

The UNHCR Handbook can be referred to at paragraphs 71 to 73.

4.5. Particular social group

The Supreme Court of Canada in Ward provided an interpretative foundation for the meaning of the ground of "membership in a particular social group". Mr. Justice La Forest stated as follows:

The meaning assigned to "particular social group" in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative.Note 24

The Court further indicated that the tests proposed in Mayers,Note 25 Cheung,Note 26 and Matter of AcostaNote 27 provided a "good working rule" to achieve the above-noted result and identified three possible categories of particular social groups that emerge from these tests:

  1. Groups defined by an innate or unchangeable characteristic;
  2. groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association;Note 28 and
  3. groups associated by a former voluntary status, unalterable due to its historical permanence.Note 29

The Court went on to state:

The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation,Note 30 while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person.Note 31

In setting out three possible categories of particular social groups, the Court made it clear that not every group of persons will be within the Convention refugee definition. There are some groups from which the claimant can, and should be expected to, dissociate him- or herself because membership therein is not fundamental to the human dignity of the claimant.Note 32

A distinction must be drawn between a claimant who fears persecution because of what he or she does as an individual and a claimant who fears persecution because of his or her membership in a particular social group. It is the membership in the group which must be the cause of the persecution and not the individual activities of the claimant.Note 33 This is sometimes referred to as the "is versus does" distinction.

A particular social group cannot be defined solely by the fact that a group of persons are objects of persecution.Note 34 The rationale for this proposition is that the Convention refugee definition requires that the persecution be "by reason of" one of the grounds, including particular social group.Note 35

Subsequent to the Ward decision, the Court of Appeal in ChanNote 36 interpreted the three possible categories of particular social groups. The majority of the Court, in concurring judgments, held that the terms "voluntary association" and "voluntary status" referred to in Ward categories two and three (above) refer to active or formal association. The dissenting judgment disagreed with this interpretation.

Chan was then heard by the Supreme Court of CanadaNote 37 and the majority of the Supreme Court concluded that the claimant had failed to present evidence on the objective element as to the well-foundedness of his fear of persecution (forced sterilization).Note 38 The majority did not address the issue of particular social group or whether there was an applicable ground in this case.Note 39 The dissenting judgment by Mr. Justice La Forest, however, dealt extensively with the ground of particular social group. The minority's comments on this issue carry considerable persuasive authority, inasmuch as they were not contradicted by the majority, and represent the views of a significant number of Supreme Court Justices. Mr. Justice La Forest (who wrote the judgment in Ward) clarified some of the issues which were raised in Ward:

  1. The Ward decision enunciated a working rule and "not an unyielding deterministic approach to resolving whether a refugee claimant could be classified within a particular social group."Note 40 The paramount consideration in determining a particular social group is the "general underlying themes of the defence of human rights and anti-discrimination."Note 41
  2. The "is versus does" distinction was not intended to replace the Ward categories. There must be proper consideration of the context in which the claim arose.Note 42
  3. With respect to category two of the Ward categories and the position taken by the Court of Appeal in Chan that this category required an active association between members of the group, Mr. Justice La Forest stated: "In order to avoid any confusion on this point let me state incontrovertibly that a refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar to him- or herself. […] the question that must be asked is whether the appellant is voluntarily associated with a particular status for reasons so fundamental to his human dignity that he should not be forced to forsake that association. That association or group exists by virtue of a common attempt made by its members to exercise a fundamental human right."Note 43 (The particular group in which Mr. Chan alleged membership was “parents in China with more than one child who disagree with forced sterilization”.)

Some examples of potential particular social groups discussed in the jurisprudence include the following:

  1. the family;Note 44
  2. homosexuals (sexual orientation);Note 45
  3. trade unions;Note 46
  4. the poor;Note 47
  5. wealthy persons or landlords were found by the Trial Division not to be particular social groups.Note 48 The Court focused on the fact that these groups were no longer being persecuted although they had been in the past.Note 49
  6. women subject to domestic abuse;Note 50
  7. men who become victims of abuse at the hands of former abusive partners of their spouse because of that relationship with their spouse;Note 51
  8. women forced into marriage without their consent;Note 52
  9. Haitian returnees (citizens who return to Haiti after a stay abroad) were found not to constitute a particular social group within the meaning of section 96 of the Act.Note 53
  10. women subject to circumcision;Note 54
  11. persons subject to forced sterilization;Note 55
  12. children of police officers who are anti-terrorist supporters;Note 56
  13. former fellow municipal employees terrified and terrorized by what they know about the ruthless, criminal mayor;Note 57
  14. uneducated girls in a country where girls are not allowed to go to school;Note 58
  15. single women without male protection Note 59 (in some countries and circumstances);
  16. "law abiding citizens" was held not to be a particular social group;Note 60
  17. persons suffering from mentalNote 61 or physical illness;Note 62
  18. "abandoned children."Note 63

4.6. Political opinion

A broad and general interpretation of political opinion is "any opinion on any matter in which the machinery of stateNote 64, government, and policy may be engaged"Note 65. However, this does not mean that only political opinions regarding the state will be relevant. As noted in Chapter 3, there is no requirement that the agent of persecution be the state.

The Supreme Court of Canada in Ward stated that there are two refinements to political opinion within the context of the Convention refugee definition.

The first is that "the political opinion at issue need not have been expressed outright."Note 66 The Court recognized that the claimant may not always articulate his or her beliefs and that the political opinion will be perceived from the claimant's actions or otherwise imputed to him or her.Note 67

The second refinement in Ward is that the "political opinion ascribed to the claimant" by the persecutor "need not necessarily conform to the claimant's true beliefs."Note 68 In other words, the political opinion may not be correctly attributed to the claimant.

The Supreme Court makes it clear that it is the perception of the persecutor which is relevant. The question to be answered is:  does the agent of persecution consider the claimant's conduct to be political or does it attribute political activities to him or her?Note 69

In Zhou,Note 70 the Court found that the RPD erred when it seemed to say that political opinion can be assessed objectively (the RPD found that the claimant’s behavior, shouting insults at officials in the Family Planning Office, did not approach the level of political opinion necessary to warrant consideration). In the Court’s view, the relevant question is subjective: whether the relevant agent of persecution would view the claimant’s statements as political and persecute him on the basis.

The claimant does not have to belong to a political partyNote 71 nor does the claimant have to belong to a group that has an official title, office or statusNote 72 nor does the claimant have to have a high-profile within a political partyNote 73 in order for there to be a determination that the claimant's fear of persecution is by reason of political opinion. The relevant issue is the persecutor's perception of the group and its activities, or of the individual and his or her activities.Note 74

In Marino Gonzalez,Note 75 a case where the Court held that the RPD applied an incorrect test to political opinion, the Court, reviewing the case law on the subject, reiterated the following principles (among others): an individual knowledge of or opposition to corruption may constitute political opinion; the meaning of “political opinion” is not confined to partisan opinion or membership in parties and movements and does not refer exclusively to national, political or municipal state politics; and refusal to participate in corruption may constitute the expression of a political opinion.

For a discussion of the ground of political opinion as it relates to laws of general application and, in particular, the dress code and military service (evasion/desertion) laws, see Chapter 9, sections 9.3.6 and 9.3.8.1.

In Colmenares,Note 76 the Court held that a victim of politically motivated persecution is not required to abandon his commitment to political activism in order to live safely in his country.

In Makala,Note 77 the Trial Division considered the applicability of paragraph 82 of the UNHCR Handbook, which states:

There may, however, also be situations in which the applicant has not given any expression to his opinions. Due to the strength of his convictions, however, it may be reasonable to assume that his opinions will sooner or later find expression and that the applicant will, as a result, come into conflict with the authorities. Where this can reasonably be assumed, the applicant can be considered to have fear of persecution for reason of political opinion.

The Court found that the CRDD’s erroneous finding that the claimant was not politically involved while in Congo may have affected its appreciation of the strength of the claimant’s political convictions and potential actions against the government upon return to Congo.

4.7. Victims of criminality and nexus to grounds

In a number of cases, the Trial Division has held that victims of crime, corruptionNote 78 or vendettas, including blood feudsNote 79 generally cannot establish a link between their fear of persecution and one of the five grounds in the definition.Note 80

However, these cases must be read with caution in light of the Federal Court of Appeal decision in Klinko,Note 81 where 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?

The Court found that given the widespread government corruption in the Ukraine ("where the corrupt elements so permeate the government as to be part of its very fabric"), the claimant's denunciation of the existing corruption constituted an expression of political opinion.

Although the opposition to corruption and criminality can, in the circumstances outlined in Klinko, be characterized as an expression of political opinion, the existence of a political opinion, and therefore nexus to a Convention ground, is fact-driven and must be determined on the basis of the evidence provided in each particular case.

In general, an opinion expressed in opposition to a criminal organization will not provide a nexus on the basis of political opinion unless the evidence shows the claimant’s opposition is rooted in political conviction.Note 82 Similarly, opposition to corruption or criminality may constitute a perceived political opinion when it can be seen to challenge the state apparatus.Note 83

A claimant’s exposure of corruption or opposition to crime will not generally place him or her in a particular social group.Note 84 A claimant who refuses to participate in crime as a matter of conscience is not a member of a political group.Note 85 However, in some cases, the grounds of political opinion or particular social group can provide a nexus where the claimant fears persecution as a result of criminal activity.Note 86

Persons who fear becoming targets of crime because they are perceived to have wealth have been found by the Federal Court not to be members of a particular social group.Note 87 The Court reasoned that as a group, people who are perceived to be wealthy are not marginalized; rather they are more frequent targets of criminal activity. The perception of wealth is insufficient to sustain the position that persons returning from abroad constitute a social group. It is clear from Ward that protection afforded under the Convention is intended to provide protection on the grounds of human rights and anti-discrimination considerations and not general criminality.

In Soimin,Note 88 a Haitian woman alleged a fear of rape based on her membership in a particular social group, "women in Haiti who may be targeted by criminals on the basis of her sex." The Court upheld the RPD finding that the violence feared by the claimant was a result of widespread generalized criminality in Haiti and not discriminatory targeting of women in particular. The harm feared was criminal in nature and had no nexus to the Convention refugee definition. However, more recently the Court arrived at a different conclusion in DezameauNote 89 and Josile,Note 90 also claims made by Haitian women claiming a fear of persecution in the form of sexual violence. In these cases, the Court cited the principle in Ward that "gender" can provide the basis for a particular social group. The Court also cited jurisprudence from the Supreme Court of Canada in support of the proposition that rape and other forms of sexual assault are crimes grounded in the status of women in society.Note 91

In Dezameau, the Court found that the error of the Board was to use its finding of a widespread risk of violence in Haitian society to rebut the assertion that there is a nexus between the applicant's social group and the risk of rape. A finding of generalityNote 92 does not prohibit a finding of persecution on the basis of one of the Convention grounds. This is explicitly set out in the IRB's Guideline 4.

Based on a review of Canadian law and the documentary evidence, the Court in Josile concluded that the notion that rape is an act of violence faced generally by all Haitians is untenable; rather the risk of rape was grounded in the applicant’s membership in a particular social group, that of Haitian women.

In Mancia,Note 93 the Court noted that a in a gender-based claim, a claimant’s burden is to satisfy the Board that she was targeted as a woman. “Stated differently, claimant needs to demonstrate that she would not have been attacked but for the fact that she was a woman.”

Table of cases

  1. A.B. v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-3522-05), Barnes, April 5, 2006; 2006 FC 444
  2. Abedalaziz, Rami Bahjat Yah v. M.C.I. (F.C., no. IMM-7531-10), Shore , September 9, 2011; 2011 FC 1066
  3. Adewumi, Adegboyega Oluseyi v. M.C.I. (F.C.T.D., no. IMM-1276-01), Dawson, March 7, 2002; 2002FCT 258
  4. Aguirre Garcia, Marco Antonio v. M.C.I. (F.C., no. IMM-3392-05), Lutfy, May 29, 2006; 2006 FC 645
  5. Ajayi, Olushola Olayin v. M.C.I. (F.C., no. IMM-5146-06), Martineau, June 5, 2007; 2007 FC 594
  6. Al-Busaidy, Talal Ali Said v. M.E.I. (F.C.A., no. A-46-91), Heald, Hugessen, Stone, January 17, 1992. Reported:  Al-Busaidy v. Canada (Minister of Employment and Immigration) (1992), 16 Imm. L.R. (2d) 119 (F.C.A.)
  7. 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
  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. Alvarez, Luis Carlos Galvin v. M.C.I. (F.C. no. IMM-8496-14), Gleeson, April 11, 2016; 2016 FC 402
  10. Annan v. M.C.I., [1995] 3 F.C. 25 (T.D.)
  11. Antoine, Belinda v. M.C.I. (F.C., no. IMM-4967-14), Fothergill, June 26, 2015; 2015 FC 795
  12. 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.)
  13. Arteaga Banegas, Cristhian Josue v. M.C.I., (F.C., no. IMM-5322-14), Shore, January 13, 2015, 2015 FC 45
  14. Asghar, Imran Mohammad v. M.C.I. (F.C., no. IMM-8239-04), Blanchard, May 31, 2005; 2005 FC 768
  15. Badran, Housam v. M.C.I. (F.C.T.D., no. IMM-2472-95), McKeown, March 29, 1996.
  16. Barrantes, Rodolfo v. M.C.I. (F.C., no. IMM-1142-04), Harrington, April 15, 2005; 2005 FC 518
  17. Bediako, Isaac v. S.G.C. (F.C.T.D., no. IMM-2701-94), Gibson, February 22, 1995
  18. Belle, Asriel Asher v. M.C.I. (F.C., no. IMM-5427-11), Mandamin, October 10, 2012; 2012 FC 1181
  19. Berrueta, Jesus Alberto Arzola v. M.C.I. (F.C.T.D., no. IMM-2303-95), Wetston, March 21, 1996
  20. Bohorquez, Gabriel Enriquez v. M.C.I. (F.C.T.D., no. IMM-7078-93), McGillis, October 6, 1994
  21. Cao, Jieling v. M.C.I. (F.C., no. IMM-1050-16), Bell, December 20, 2016; 2016 FC 1393
  22. Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (T.D.)
  23. Cen v. Canada (Minister of Citizenship and Immigration), [1996] 1 F.C. 310 (T.D.)
  24. 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.)
  25. Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (C.A.)
  26. Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593
  27. Chekhovskiy, Alexey v. M.C.I. (F.C., no. IMM-5086-08), de Montigny, September 25, 2009; 2009 FC 970
  28. Chen, Yu Jing v. M.C.I. (F.C., no. IMM-3627-09), Mosley, March 5, 2010; 2010 FC 258
  29. Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.)
  30. Cius, Ligene v. M.C.I. (F.C., no. IMM-406-07), Beaudry, January 7, 2008; 2008 FC 1
  31. Colmenares, Jimmy Sinohe Pimentel v. M.C.I. (F.C., no. IMM-5417-05), Barnes, June 14, 2006, 2006 FC 749
  32. 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.)
  33. Dezameau, Elmancia v. M.C.I. (F.C. no., IMM-4396-09), Pinard, May 27, 2010; 2010 FC 559
  34. 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.)
  35. Étienne, Jacques v. M.C.I. (F.C., no. IMM-2771-06), Shore, January 25, 2007; 2007 FC 64
  36. Femenia, Guillermo v. M.C.I. (F.C.T.D., no. IMM-3852-94), Simpson, October 30, 1995
  37. Fernandez De La Torre, Mario Guillermo v. M.C.I. (F.C.T.D., no. IMM-3787-00), McKeown, May 9, 2001
  38. Forbes, Ossel O’Brian v. M.C.I. (F.C., no. IMM-5035-11), Hughes, February 27, 2012; 2012 FC 270
  39. 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.)
  40. Garcia Vasquez, Fredis Angel v. M.C.I. (F.C., no. IMM-4341-10), Scott, April 19, 2011; 2011 FC 477
  41. Gholami, Abbas v. M.C.I. (F.C., no. IMM-1203-14), O’Reilly, December 16, 2014; 2014 FC 1223
  42. Godoy Cerrato, Dora Miroslava v. M.C.I. (F.C., no. IMM-7141-13), Shore, February 13, 2015; 2015 FC 179
  43. Gomez, José Luis Torres v. M.C.I. (F.C.T.D., no. IMM-1826-98), Pinard, April 29, 1999
  44. Granada, Armando Ramirez v. M.C.I. (F.C., no. IMM-83-04), Martineau, December 21, 2004; 2004 FC 1766
  45. Guajardo-Espinoza [1993] F.C.J., no. 797 (FCA)
  46. Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution issued by the Chairperson pursuant to section 65(3) of the Immigration Act, March 9, 1993
  47. Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution issued by the Chairperson pursuant to section 65(3) of the Immigration Act, updated November 25, 1996
  48. Gunaratnam, Thusheepan v. M.C.I. (F.C., no. IMM-4854-13), Russell, March 20, 2015; 2015 FC 358
  49. Gur, Irem v. M.C.I. (F.C., no. IMM-6294-11), de Montigny, August 14, 2012; 2012 FC 992
  50. Hanukashvili, Valeri v. M.C.I. (F.C.T.D., no. IMM-1732-96), Pinard, March 27, 1997
  51. Hernandez Cornejo, Lisseth Noemi v. M.C.I. (F.C., no. IMM-5751-11), Rennie, March 19, 2012; 2012 FC 325
  52. 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.)
  53. 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.)
  54. Jasiel, Tadeusz v. M.C.I. (F.C., no. IMM-564-05), Teitelbaum, September 13, 2005; 2005 FC 1234
  55. Jasim, Fawzi Abdulrahm v. M.C.I., (F.C., no. IMM-3838-02), Russell, September 2, 2003; 2003 FC 1017
  56. Jean, Leonie Laurore v. M.C.I. (F.C., no. IMM-5860-09), Shore, June 22, 2010; 2010 FC 674
  57. Josile, Duleine v. M.C.I. (F.C., no. IMM-3623-10, Martineau, January 17, 2011; 2011 FC 39
  58. Kang, Hardip Kaur v. M.C.I. (F.C., no. IMM-775-05), Martineau, August 17, 2005; 2005 FC 1128
  59. Karpounin, Maxim Nikolajevitsh v. M.E.I. (F.C.T.D., no. IMM-7368-93), Jerome, March 10, 1995
  60. Kassatkine, Serguei v. M.C.I. (F.C.T.D., no. IMM-978-95), Muldoon, August 20, 1996
  61. Katwaru, Shivanand Kumar v. M.C.I. (F.C., no. IMM-3368-06), Teitelbaum, June 8, 2007; 2007 FC 612
  62. Klinko, Alexander v. M.C.I. (F.C.A., no. A-321-98), Létourneau, Noël, Malone, February 22, 2000
  63. Klinko, Alexander v. M.C.I. (F.C.T.D., no. IMM-2511-97), Rothstein, April 30, 1998
  64. Kouril, Zdenek v. M.C.I. (F.C.T.D., no. IMM-2627-02), Pinard, June 13, 2003; 2003 FCT 728
  65. Kwong, Kam Wang (Kwong, Kum Wun) v. M.C.I. (F.C.T.D., no. IMM-3464-94), Cullen, May 1, 1995
  66. Lai, Cheong Sing v. M.C.I. (F.C.A., no. A-191-04), Malone, Richard, Sharlow, April 11, 2005; 2005 FCA 125
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  68. Lara, Benjamin Zuniga v. M.C.I. (F.C.T.D., no. IMM-438-98), Evans, February 26, 1999
  69. Larenas, Alberto Palencia v. M.C.I. (F.C., no. IMM-2084-05), Shore, February 14, 2006; 2006 FC 159
  70. Lezama, Orlando Rangel v. M.C.I. (F.C., no. IMM-3396-09), Russell, August 11, 2011; 2011 FC 986
  71. Liaqat, Mohammad v. M.C.I. (F.C., no. IMM-9550-04), Teitelbaum, June 23, 2005; 2005 FC 893
  72. Lin: M.C.I. v. Lin, Chen (F.C.A., no. A-3-01), Desjardins, Décary, Sexton, October 18, 2001
  73. Liu, Ying Yang v. M.C.I. (F.C.T.D., no. IMM-4316-94), Reed, May 16, 1995
  74. Losowa Osengosengo, Victorine v. M.C.I. (F.C., no. IMM-4132-13), Gagné, March 13, 2014; 2014 FC 244
  75. Lozano Navarro, Victor v. M.C.I. (F.C., no. IMM-5598-10), Near, June 24, 2011; 2011 FC 768
  76. M.C.E. v. M.C.I. (F.C., no. IMM-1116-10), Beaudry, November 16, 2010; 2010 FC 1140
  77. M.C.I. v. A068 (F.C., no. IMM-8485-12), Gleason, November 19, 2013; 2013 FC 1119
  78. M.C.I. v. A25 (F.C., no. IMM-11547-12), Phelan, January 6, 2014; 2014 FC 4
  79. M.C.I. v. B344 (F.C. no., IMM-7817-12), Noël, May 8, 2013; 2013 FC 447
  80. M.C.I. v. B377 (F.C. no. IMM-6116-12), Blanchard, May 8, 2013; 2013 FC 320
  81. 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
  82. M.C.I. v. Oh, Mi Sook (F.C., no. IMM-5048-08), Pinard, May 22, 2009; 2009 FC 506
  83. Macias, Laura Mena v. M.C.I. (F.C., no. IMM-1040-04), Martineau, December 16, 2004; 2004 FC 1749
  84. 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.)
  85. Mancia, Veronica Margarita Santos v. M.C.I. (F.C., no. IMM-148-11), Snider, July 28, 2011; 2011 FC 949
  86. Manrique Galvan, Edgar Jacob v. M.C.I. (F.C.T.D., no. IMM-304-99), Lemieux, April 7, 2000
  87. Marino Gonzalez, Francisco v. M.C.I. (F.C., no. IMM-3094-10), Russell, March 30, 2011; 2011 FC 389
  88. Martinez Menendez, Mynor v. M.C.I. (F.C., no. IMM-3830-09), Boivin, February 25, 2010; 2010 FC 221
  89. Marvin, Mejia Espinoza v. M.C.I. (F.C.T.D., no. IMM-5033-93), Joyal, January 10, 1995
  90. Mason, Rawlson v. S.S.C. (F.C.T.D., no. IMM-2503-94), Simpson, May 25, 1995
  91. Matter of Acosta, Interim Decision 2986, 1985 WL 56042
  92. Mayers:  Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154 (C.A.)
  93. Mehrabani, Paryoosh Solhjou v. M.C.I. (F.C.T.D., no. IMM-1798-97), Rothstein, April 3, 1998
  94. Mia, Samsu v. M.C.I. (F.C., no. IMM-2677-99), Tremblay-Lamer, January 26, 2000
  95. Mings-Edwards, Ferona Elaine v. M.C.I. (F.C., no. IMM-3696-10), Mactavish, January 26, 2011; 2011 FC 91
  96. Mohebbi, Hadi v. M.C.I. (F.C., no. IMM-3755-13), Harrington, February 26, 2014; 2014 FC 182
  97. Montchak, Roman v. M.C.I. (F.C.T.D., no. IMM-3068-98), Evans, July 7, 1999
  98. Morenakang Mmono, Ruth v. M.C.I. (F.C., no. IMM-4015-12), Phelan, March 5, 2013; 2013 FC 219
  99. Mortera, Senando Layson v. M.E.I. (F.C.T.D., no. A-1084-92), McKeown, December 8, 1993
  100. Mu, Pei Hua  v. M.C.I. (F.C., no. IMM-9408-04), Harrington, November 17, 2004; 2004 FC 1613
  101. Munoz, Tarquino Oswaldo Padron v. M.C.I. (F.C.T.D., no. IMM-1884-95), McKeown, February 22, 1996
  102. Murillo Garcia, Orlando Danilo v. M.C.I. (F.C.T.D., no. IMM-1792-98), Tremblay-Lamer, March 4, 1999
  103. Musakanda, Tavonga v. M.C.I. (F.C., no. IMM-6250-06), O'Keefe, December 11, 2007; 2007 FC 1300
  104. Mwakotbe, Sarah Gideon v. M.C.I. (F.C., no. IMM-6809-05), O'Keefe, October 16, 2006; 2006 FC 1227
  105. Narvaez v. Canada (Minister of Citizenship and Immigration), [1995] 2 F.C. 55 (T.D.)
  106. Navaneethan, Kalista v. M.C.I. (F.C., no. IMM-51-14), Strickland, May 21, 2015; 2015 FC 664
  107. Nel, Charl Willem v. M.C.I. (F.C., no. IMM-4601-13), O’Keefe, September 4, 2014; 2014 FC 842
  108. Neri, Juan Carlos Herrera v. M.C.I. (F.C., no. IMM-9988-12), Strickland, October 23, 2013; 2013 FC 1087
  109. Nosakhare, Brown v. M.C.I. (F.C.T.D., no. IMM-5023-00), Tremblay-Lamer, July 6, 2001
  110. Nyembua, Placide Ntaku W v. M.C.I. (F.C., No. IMM-7933-14), Gascon, August 14, 2015; 2015 FC 970
  111. Ocean, Marie Nicole v. M.C.I., (F.C., no. IMM-5528-10), Lemieux, June 29, 2011; 2011 FC 796
  112. Oloyede, Bolaji v. M.C.I. (F.C.T.D., no. IMM-2201-00), McKeown, March 28, 2001
  113. Orelien v. Canada (Minister of Employment and Immigration, [1992] 1 F.C. 592
  114. Orphée, Jean Patrique v. M.C.I. (F.C., no. IMM-251-11), Scott, July 29, 2011; 2011 FC 966
  115. Palomares. Dalia Maria Vieras v. M.C.I. (F.C.T.D., no. IMM-933-99), Pelletier, June 2, 2000
  116. Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008; 2008 FC 474
  117. Pena, Jose Ramon Alvarado v. M.C.I. (F.C.T.D., no. IMM-5806-99), Evans, August 25, 2000
  118. Pierre-Louis [sic] v. M.E.I., [F.C.A., no. A-1264-91, April 29, 1993]
  119. Pizarro, Claudio Juan Diaz v. M.E.I. (F.C.T.D., no. IMM-2051-93), Gibson, March 11, 1994
  120. Pour-Shariati v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 767 (T.D.)
  121. Prato, Jorge Luis Machado v. M.C.I. (F.C., no. IMM-10670-04), Pinard, August 12, 2005; 2005 FC 1088
  122. R. v. Cook [1998] 2 S.C.R. 597
  123. R. v. Lavalle [1990] 1 S.C.R. 582
  124. R. v. Osolin [1993] 4 S.C.R.595
  125. R. v. Seaboyer [1991] 2 S.C.R. 577
  126. 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
  127. Reul, Jose Alonso Najera v. M.C.I. (F.C.T.D., no. IMM-326-00), Gibson, October 2, 2000
  128. Reynoso, Edith Isabel Guardian v. M.C.I. (F.C.T.D., no. IMM-2110-94), Muldoon, January 29, 1996
  129. Rivero, Omar Ramon v. M.C.I. (F.C.T.D., no. IMM-511-96), Pinard, November 22, 1996
  130. Rodriguez Diaz, Jose Fernando v. M.C.I. (F.C., no. IMM-4652-07), O'Keefe, November 6, 2008
  131. Rodriguez, Ana Maria v. M.C.I. (F.C.T.D., no. IMM-4573-96), Heald, September 26, 1997
  132. Rodriguez, Juan Carlos Rodriguez v. M.E.I. (F.C.T.D., no. IMM-4109-93), Dubé, October 25, 1994
  133. Saiedy, Abbas v. M.C.I. (F.C., no. IMM-9198-04), Gauthier, October 6, 2005; 2005 FC 1367
  134. Salvador (Bucheli), Sandra Elizabeth v. M.C.I. (F.C.T.D., no. IMM-6560-93), Noël, October 27, 1994
  135. Sebok, Judit v. M.C.I. (F.C., no. IMM-2893-12), Snider, September 21, 2012, 2012 FC 1107
  136. 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)
  137. Serrano, Roberto Flores v. M.C.I. (F.C.T.D., no. IMM-2787-98), Sharlow, April 27, 1999
  138. Shahiraj, Narender Singh v. M.C.I. (F.C.T.D., no. IMM-3427-00), McKeown, May 9, 2001
  139. Shkabari, Zamir v. M.C.I. (F.C., no. IMM-4399-11), O’Keefe, February 8, 2012; 2012 FC 177
  140. Singh, Sarbit v. M.C.I. (F.C., no. IMM-1157-07), Beaudry, October 1, 2007; 2007 FC 978
  141. Sinora, Frensel v. M.E.I. (F.C.T.D., no. 93-A-334), Noël, July 3, 1993
  142. Soberanis, Enrique Samayoa v. M.C.I. (F.C.T.D., no. IMM-401-96), Tremblay-Lamer, October 8, 1996
  143. Soimin, Ruth v. M.C.I. (F.C., no. IMM-3470-08), Lagacé, March 4, 2009; 2009 FC 218
  144. Sopiqoti, Spiro v. M.C.I. (F.C., no. IMM-5640-01), Martineau, January 29, 2003; 2003 FC 95
  145. Suarez, Jairo Arango v. M.C.I. (F.C.T.D., no. IMM-3246-95), Reed, July 29, 1996
  146. Surajnarain, Doodnauth v. M.C.I. (F.C., no. IMM-1309-08), Dawson, October 16, 2008; 2008 FC 1165
  147. Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551; 2004 SCC 47
  148. Tomov, Nikolay Haralam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005; 2005 FC 1527
  149. Trujillo Sanchez, Luis Miguel v. M.C.I. (F.C.A., no. A-310-06), Richard, Sharlow, Malone, March 8, 2007; 2007 FCA 99
  150. V.S. v. M.C.I. (F.C., no. IMM-7865-14), Barnes, October 7, 2015; 2015 FC 1150
  151. Valderrama, Liz Garcia v. M.C.I. (F.C.T.D., no. IMM-444-98), Reed, August 5, 1998
  152. Vassiliev, Anatoli Fedorov v. M.C.I. (F.C.T.D. IMM-3443-96), Muldoon, July 4, 1997
  153. Veeravagu, Uthaya Kumar v. M.E.I. (F.C.A., no. A-630-89), Hugessen, Desjardins, Henry, May 27, 1992
  154. Vidhani v. M.C.I., [1995] 3 F.C. 60 (T.D.)
  155. Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85
  156. Wilcox, Manuel Jorge Enrique Tataje v. M.E.I. (F.C.T.D., no. A-1282-92), Reed, November 2, 1993
  157. Woods, Kinique Kemira v. M.C.I. (F.C., no. IMM-4863-06), Beaudry, March 26, 2007; 2007 FC 318
  158. Xheko, Aida Siri v. M.C.I. (F.C.T.D., no. IMM-4281-97), Gibson, August 28, 1998
  159. Xiao, Mei Feng v. M.C.I. (F.C.T.D., no. IMM-953-00), Muldoon, March 16, 2001
  160. Yang, Hui Qing v. M.C.I. (F.C.T.D., no. IMM-6057-00), Dubé, September 26, 2001
  161. Yoli, Hernan Dario v. M.C.I. (F.C.T.D., no. IMM-399-02), Rouleau, December 30, 2002; 2002 FCT 1329
  162. Zefi, Sheko v. M.C.I., (F.C., no. IMM-1089-02), Lemieux 2003 FCT 636 May 21, 2003
  163. Zhang, Zhi Jun v. M.C.I. (F.C., no. IMM-369-09), O’Keefe, January 6, 2010; 2010 FC 9
  164. Zhou, Guo Heng v. M.C.I. (F.C., no. IMM-1674-09), de Montigny, November 25, 2009; 2009 FC 1210
  165. Zhou, Zhi Tian v. M.C.I. (F.C., no. IMM-385-12), Zinn, October 30, 2012; 2012 FC 1252
  166. Zhu v. M.C.I. (F.C.A. no., A-1017-91), MacGuigan, Linden, Robertson, January 28, 1994
  167. Zhu, Qiao Ying v. M.C.I. (F.C., no. IMM-589-08), Zinn, September 23, 2008; 2008 FC 1066
  168. Zhu, Yong Qin v. M.C.I. (F.C.T.D., no. IMM-5678-00), Dawson, September 18, 2001

Notes

Note 1

Canada (Attorney General) v. Ward, [1993] 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), [1993] 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

In 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.

See also 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.

In 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, footnote 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.”

In 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 [1993] 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.

 

Return to note 6 referrer

Note 7

Ward, supra, footnote 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

In Narvaez v. Canada (Minister of Citizenship and Immigration), [1995] 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

See Gur, Irem v. M.C.I. (F.C., no. IMM-6294-11), de Montigny, August 14, 2012; 2012 FC 992, at paragraph 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.

See also 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.

In 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 Colmenares, 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

Cao, Jieling v. M.C.I. (F.C., no. IMM-1050-16), Bell, December 20, 2016; 2016 FC 1393, at para. 17.

Return to note 12 referrer

Note 13

The Supreme Court of Canada pointed out in R. v. Cook [1998] 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 13 referrer

Note 14

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 Hanukashvili in 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 14 referrer

Note 15

In 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 15 referrer

Note 16

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.

See also 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.

In 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.

In 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, footnote 20), expands the concept of public religious acts, not restricts it. The specific manner in which an individual gives effect to his/her religious beliefs is a valid consideration.

In 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.

In Mohebbi, supra, footnote 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.

In 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.

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Note 17

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.

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Note 18

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.

In 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.

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Note 19

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.

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Note 20

Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551; 2004 SCC 47.

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Note 21

Kassatkine, Serguei v. M.C.I. (F.C.T.D., no. IMM-978-95), Muldoon, August 20, 1996, at 4.

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Note 22

See also Syndicat Northcrest, supra, footnote 20, where the Supreme Court of Canada said (at 61) that: “No right, including freedom of religion is absolute.”

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Note 23

RAD TB7-01837, Bosveld, May 8, 2017. The decision was identified by the IRB Chairperson as a Jurisprudential Guide on July 18, 2017.

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Note 24

Ward, supra, footnote 1, at 739.

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Note 25

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

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Note 26

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

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Note 27

Matter of Acosta, Interim Decision 2986, 1985 WL 56042 (BIA-United States).

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Note 28

In Yang, supra, footnote 19, 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.

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Note 29

Ward, supra, footnote 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.

In 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.

In 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.

In 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.

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Note 30

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.”

See also 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.

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Note 31

Ward, supra, footnote 1, at 739.

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Note 32

Ward, supra, footnote 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.”

In 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.

In Trujillo Sanchez, 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”.

See also 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.

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.

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Note 33

Ward, supra, footnote 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.

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Note 34

Ward, supra, footnote 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.

 

In Manrique Galvan, supra, footnote 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.

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Note 35

In 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.

See also 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.

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Note 36

Chan(C.A.), supra, footnote 1.

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Note 37

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

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Note 38

Chan (S.C.C.), ibid, at 672.

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Note 39

Chan (S.C.C.), supra, footnote 37, at 658 and 672.

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Note 40

Chan (S.C.C.), supra, footnote 37, at 642.

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Note 41

Chan (S.C.C.), supra, footnote 37, at 642.

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Note 42

In Chan (S.C.C.), supra, footnote 37, 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.

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Note 43

Chan (S.C.C.), supra, footnote 37, at 644-646.

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Note 44

Al-Busaidy, Talal Ali Said v. M.E.I. (F.C.A., no. A-46-91), Heald, Hugessen, Stone, January 17, 1992.  Reported:  Al-Busaidy v. 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), [1995] 1 F.C. 767 (T.D.), at 774-775; and Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (T.D.).  With respect to the concept of indirect persecution, see also Chapter 9, section 9.4.

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 para. 4 and 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.

In 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, Alexander v. 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).

See also 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.

In 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.     

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Note 45

In 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 Ward, supra, footnote 1.

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Note 46

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".

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Note 47

In 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, [1992] 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.”

In Mia, Samsu v. 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.

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Note 48

In 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. .
See also 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.

In 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."

In 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.”

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Note 49

In Ward, supra, footnote 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.

In Karpounin, supra, footnote 48, 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.

In 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.

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Note 50

In Narvaez, supra, footnote 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, footnote 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, footnote 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.

In 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.

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Note 51

Sebok, Judit v. M.C.I. (F.C., no. IMM-2893-12), Snider, September 21, 2012, 2012 FC 1107.

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Note 52

Vidhani v. M.C.I., [1995] 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, footnote 1.

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Note 53

Cius, Ligene v. M.C.I. (F.C., no. IMM-406-07), Beaudry, January 7, 2008; 2008 FC 1, paragraphs 14-21. However, see footnote 87, infra.

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Note 54

Annan v. Canada (Minister of Citizenship and Immigration), [1995] 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.

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Note 55

Cheung, supra, footnote 26, at 322, (“women in China who have one child and are faced with forced sterilization”).

But note 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.

See also Chan (S.C.C.), supra, footnote 37, 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.

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Note 56

Badran, Housam v. M.C.I. (F.C.T.D., no. IMM-2472-95), McKeown, March 29, 1996.

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Note 57

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.

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Note 58

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 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.”

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Note 59

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).

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Note 60

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.

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Note 61

In 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.

In Jasiel, Tadeusz v. 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.

In 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”.

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Note 62

In 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.

In 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.

See also 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.

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Note 63

Patel, supra, footnote 30.

Note that in one case age per se was held not to be an unchangeable characteristic: Jean, supra, footnote 30

In 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.

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Note 64

In 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.

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Note 65

Ward, supra, footnote 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?

See also 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.”

See also 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.

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Note 66

Ward, supra, footnote 1, at 746.

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Note 67

Ward, supra, footnote 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.

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Note 68

Ward, supra, footnote 1, at 747.

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Note 69

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.

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Note 70

Zhou, Zhi Tian v. M.C.I. (F.C., no. IMM-385-12), Zinn, October 30, 2012; 2012 FC 1252.

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Note 71

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.

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Note 72

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.

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Note 73

Surajnarain, Doodnauth v. M.C.I. (F.C., no. IMM-1309-08), Dawson, October 16, 2008; 2008 FC 1165.

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Note 74

Hilo, supra, footnote 72 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, footnote 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, footnote 1, at 693-696, per Heald J.A., and at 721-723, per Desjardins J.A.

In 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.

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Note 75

Marino Gonzalez, Francisco v. M.C.I. (F.C., no. IMM-3094-10), Russell, March 30, 2011; 2011 FC 389 at paras. 58-60.

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Note 76

Colmenares, supra, footnote 9.

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Note 77

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.).

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Note 78

 Kang, Hardip Kaur v. M.C.I. (F.C., no. IMM-775-05), Martineau, August 17, 2005; 2005 FC 1128, at para.10: “victims or potential victims of crime, corruption or personal vendettas, generally cannot establish a link between fear of persecution and Convention reasons”. 

In 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.  ;

In 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.

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Note 79

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.

See also 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. 

In 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.

In Lara, Benjamin Zuniga v. 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. 

In Pena, Jose Ramon Alvarado v. 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:

[41]      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 Ward).

However, in 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.

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Note 80

In 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.

In Kang, Hardip Kaur v. M.C.I. supra, footnote 78 (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.

In 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.)

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Note 81

Klinko (F.C.A.), supra, footnote 44. 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.

In Zhu, Yong Qin v. M.C.I., supra, footnote 65, 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.

In 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.

        

In Yoli, Hernan Dario v. M.C.I. (F.C.T.D., no. IMM-399-02), Rouleau, December 30, 2002; 2002 FCT 1329, at para.41 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.

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Note 82

Ward, supra, footnote 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. 
In 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.

See also  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.

In 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 82 referrer

Note 83

See Klinko (F.C.A.), supra, footnote 44. The FCA’s decision was rendered in 2000, but a number of earlier cases were decided using similar reasoning.  In Berrueta, supra, footnote 65, at para.5, 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.

Also in 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.

See also 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.

See also 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.

In Murillo Garcia, Orlando Danilo v. 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.
In 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.

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Note 84

In Ward, supra, footnote 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, footnote 82, 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, footnote 34; 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.

In 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 Ward and Chan the Court held that there was no nexus between the targeted class and a Convention social group.

And see 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.

Also see Palomares, supra,footnote 83, 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.

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Note 85

Lezama, Orlando Rangel v. M.C.I. (F.C., no. IMM-3396-09), Russell, August 11, 2011; 2011 FC 986 , at para.54.

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Note 86

Klinko (F.C.A.), supra, footnote 44.

In Cen v. Canada (Minister of Citizenship and Immigration), [1996] 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.

In Reynoso, supra, footnote 57, 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.

For cases in which opposition to corruption was considered political opinion, see Berrueta, supra, footnotes 65 and 83; and Bohorquez, supra, footnote 83.

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Note 87

Cius, Ligene v. M.C.I. , supra, footnote 53.  The claimant was perceived as wealthy because he was returning to Haiti after a stay abroad.

In Navaneethan, Kalista v. M.C.I. (F.C., no. IMM-51-14), Strickland, May 21, 2015; 2015 FC 664, at para.53, 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 Cius, 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 para.18)

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Note 88

Soimin, Ruth v. M.C.I. (F.C., no. IMM-3470-08), Lagacé, March 4, 2009; 2009 FC 218.

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Note 89

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

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Note 90

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

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Note 91

R. v. Osolin [1993] 4 S.C.R. 595; R. v. Seaboyer [1991] 2 S.C.R. 577; R. v. Lavalle [1990] 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.

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Note 92

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.

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Note 93

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.

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