Chapter 5 - Well-Founded Fear

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Table of Contents

  1. 5.1. Generally
  2. 5.2. Test - Standard of Proof
  3. 5.3. Subjective Fear and Objective Basis
    1. 5.3.1. Establishing the Subjective and Objective Elements
  4. 5.4. Delay
    1. 5.4.1. Delay in leaving the country of persecution
    2. 5.4.2. Failure to seek protection in other countries
    3. 5.4.3. Delay in making a claim upon arrival in Canada
  5. 5.5. Re-Availment of Protection
  6. 5.6. Sur Place Claims and Well-Founded Fear
  7. Table of Cases

5. Well-Founded Fear

5.1. Generally

The definition of Convention refugee is forward-looking. In a claim for refugee status, the issue is not whether the claimant had good reason to fear persecution in the past, but whether, at the time the claim is being assessed, the claimant has good grounds for fearing persecution in the future.Note 1

Claimants must establish that they have a subjective fear of persecution and also that the fear is well-founded in an objective sense,Note 2 that is, it is justified in light of the objective situation. When evaluating conditions in the claimant's country of origin, the tribunal is required to consider evidence of the conditions as they exist at the time of the hearing.Note 3

Claimants do not have to establish that they have been persecuted in the past.Note 4 Even if they can do so, "past persecution is insufficient of itself to establish a fear of future persecution".Note 5 Nonetheless, past persecution remains a relevant consideration because evidence relating to it (or to a fear of past persecution) can properly be the foundation of a present fear.Note 6 In Natynczy,Note 7 the Court remarked that even though the test for a well-founded fear was forward-looking, in cases where incidents of past persecution were alleged, the Board had an obligation to assess those incidents because "evidence of past persecution is one of the most effective means of showing that a fear of future persecution is objectively well-founded." Where a claimant is able to establish a pattern of long-standing persecution, there may be reason to believe that the pattern will continue.Note 8

Evidence about persecution faced by similarly-situated people will often be compelling because it tends to show that a claimant would face the same risks. However, that does not change the fact that it is still the claimant who must face a serious possibility of persecution.Note 9

5.2. Test - Standard of Proof

Claimants must establish the factual elements of their claim on a balance of probabilities, but they do not have to prove that persecution would be more likely than not.Note 10 The evidence must show only that there are "good grounds" for fearing persecution.Note 11 The test, which has become known as the Adjei test, was set out as:

Is there a reasonable chance that persecution would take place were the applicant returned to his country of origin?Note 12

In Li,Note 13 the Federal Court of Appeal cautioned against confusing the "standard of proof" and the "legal test to be met". The standard of proof refers to the standard the panel will apply when assessing the evidence adduced for the purpose of making factual findings, whereas the legal test is the test for the likelihood of persecution which a claimant must establish in order to obtain Convention refugee status.

Courts have used various terms to describe this test – “good grounds”, “reasonable chance”, and “reasonable” or even “serious” possibility, as opposed to a “mere” possibility. The test does not require a probability of persecutionNote 14 and asking claimants to establish that they “would” be persecuted in the future, has been held to be the wrong test.Note 15 However, in one case, the Court held that the RPD did not err when it stated that there was insufficient evidence that the claimant would face a serious possibility of persecution, as the word “would” has “both a degree of certainty in some contexts and a degree of likelihood in other contexts”. In the Court’s view, the member was speaking of the reasonable likelihood, not the absolute certainty.Note 16

The test for the well-foundedness of a fear of persecution was further clarified in Ponniah,Note 17 where Desjardins J.A. stated:

"Good grounds" or "reasonable chance" is defined in Adjei as occupying the field between upper and lower limits; it is less than a 50 per cent chance (i.e., a probability), but more than a minimal or mere possibility. There is no intermediate ground: what falls between the two limits is "good grounds".

In Ioda,Note 18 the Court referred to the test set out in Adjei and Ponniah and rejected the argument that when the Refugee Division based its negative decision on there being a “mere risk” of persecution it was equivalent to finding a “mere possibility”. In the Court’s view, “risk” conveyed a higher threshold of probability. The Court found in RajagopalNote 19 that the Officer misstated the test when he concluded that the claimant “would not be at particular risk”.

In SivaraththinamNote 20 the claimant alleged that all he was required to establish was that there was more than a minimal possibility that he would be persecuted upon return to Sri Lanka. Justice Annis undertook a detailed examination of the wording of the legal test for section 96.  According to his interpretation of Adjei, the Court of Appeal was not proposing either "more than a mere possibility" or "not more than a 50 percent chance" as the test for determining a well-founded fear under section 96. In his view, the Court was looking for a compromise standard between the two extremities, neither of which it suggested should apply. Justice Annis concluded that Adjei established the proper expression of the standard to determine a well-founded fear as a "reasonable chance", "reasonable possibility", "serious possibility", or "good grounds". He went on to express his own preference:

[49] Returning to the issue of appropriate qualifiers of possibilities, chances, etc, I am of the view that any test not containing the term "reasonable" as a limitation should be shunned. This would leave the appropriate standard to be either a "reasonable chance" or a "reasonable possibility", as there is no distinction between a chance or a possibility.

The Court also cautions that if the tribunal sets out a multiplicity of misstated tests in its reasons, then later stating the test correctly elsewhere in the reasons will not cure those errors and the decision may not be saved.Note 21

With regard to the standard of proof used to assess evidence, the Federal Court has held that certain phrasing in CRDD reasons, such as “we are not convinced”Note 22 or “the claimant did not persuade the panel”Note 23 implied overly exacting standards of proof.

 

5.3. Subjective Fear and Objective Basis

A claimant's subjective fear of persecution must have an objective basis.

The subjective component relates to the existence of a fear of persecution in the mind of the refugee. The objective component requires that the refugee’s fear be evaluated objectively to determine if there is a valid basis for that fear.Note 24

Claimants may have a subjective fear that they will be persecuted if returned to their country, but the fear must be assessed objectively in light of the situation in that country in order to determine whether the fear is well founded.Note 25

Both subjective fear and the objective basis for it are crucial elements in the definition of a Convention refugee. In Kamana,Note 26 Madam Justice Tremblay-Lamer held that the panel's finding that the claimant had not credibly established the subjective element was reasonable and that:

The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition – subjective and objective – must be met.

The same reasoning was repeated by Madam Justice Tremblay-Lamer shortly afterwards in Tabet-Zatla,Note 27 a case which was followed by a number of judges at the Trial DivisionNote 28. In 2002, Justice Tremblay-Lamer was faced with a challenge to her holding in the Maqdassy case.Note 29 The applicant relied on Yusuf, Note 30 an earlier decision by the Federal Court of Appeal which had found that the soundness of rejecting a claim because of the absence of subjective fear in the presence of an objective basis for the fear was “doubtful.” In Yusuf, Hugessen J.A. stated:

I find it hard to see in what circumstances it could be said that a person who, we must not forget, is by definition claiming refugee status could be right in fearing persecution and still be rejected because it is said that fear does not actually exist in his conscience.

The applicant in MaqdassyNote 31 relied on this to argue thatit might not be necessary to establish a subjective fear of persecution where an objective basis for the fear had been shown to exist. Justice Tremblay-Lamer disagreed, noting that Yusuf had been decided prior to Ward,Note 32 in which the Supreme Court made it clear that both components of the test were required.Note 33 In Geron,Note 34 a case decided several months later, Mr. Justice Blanchard also referred to Ward as authority for finding that the lack of evidence going to the subjective element of the claim was a “fatal flaw”. Mr. Justice Harrington too, cited Ward when he held in NazirNote 35 that it was not necessary for him to rule on other issues in that case because “even if there were grounds for an objective fear, there must also be a subjective fear of persecution.”

5.3.1. Establishing the Subjective and Objective Elements

As mentioned in Yusuf,Note 36 children or persons suffering from mental disability may be incapable of experiencing fear. The Patel caseNote 37 concerns a minor but notes that either age or disability may cause a claimant to be incapable of articulating his or her subjective fear in a rational manner. If a claimant is not competent and the evidence establishes an objective basis for fear of persecution, the person acting as the claimant’s designated representative may establish a subjective fear.Note 38 However, the claim must be evaluated from the perspective of the minor.Note 39 In some cases, it may be possible for the tribunal to infer the subjective fear from the evidence. As the Court points out in Patel, it is rare that a claimant who has good reason to be afraid will not be – unless the claimant is incompetent, exceptionally committed to a cause, or perhaps just foolhardy.

Judicial reviews are seldom about such cases. Far more often, they concern claimants who have not met their burden of establishing the subjective component of a well-founded fear because of a credibility issue.

The relationship between subjective fear and credibility has been analyzed from various perspectives and the Federal Court and Federal Court of Appeal have provided a number of observations on this subject, including the following:

  • MacGuigan, J. in ShanmugarajahNote 40: “(…) it is almost always foolhardy for a Board in a refugee case, where there is no general issue as to credibility, to make the assertion that the claimants had no subjective element in their fear (…)”. 
  • Cullen, J. in ParadaNote 41 held that if a claimant testifies that he fears for his life and there is evidence to reasonably support those fears, it is improper for the Refugee Division to reject that testimony out of hand without making a negative finding of credibility.
  • Teitelbaum, J. in AssadiNote 42 wrote: “Failure to immediately seek protection can impugn the claimant's credibility, including his or her testimony about events in his country of origin.”
  • Joyal, J. in several cases, including Parmar,Note 43 stated that the subjective component of the well-founded fear test depended solely on the claimant’s credibility.
  • Cullen, J. in DirieNote 44: “Once the objective grounds for the claimant’s fear are present, it is very likely that a subjective fear is also present unless the Board questions the claimant’s credibility. 
  • Lemieux, J. in HatamiNote 45 held that the Board had no evidentiary basis on which to conclude that the claimant did not have a genuine subjective fear of persecution when her subjective fear was clearly established in her PIF and the Board had found her evidence credible.
  • Beaudry, J. in HerreraNote 46 first cites Ward to say that the determination of the existence of a subjective fear is based on the claimant’s credibility. Then, heagrees with the respondent that the absence of subjective fear “may be fatal to a refugee claim, beyond the simple negative inference of credibility.”
  • Blais, J. in AhouaNote 47:  “The Minister properly pointed out that a negative finding regarding subjective fear may render the assessment of the objective aspect of the complaint superfluous and may in itself warrant the dismissal of the claim.”
  • Mactavish, J. in Hidalgo TranquinoNote 48: “Having accepted Ms. Hidalgo’s evidence as truthful, including the explanation that she provided for her failure to claim elsewhere, it was simply unreasonable for the Board to dismiss her claim for protection under section 96 on the basis that she lacked subjective fear.”
  • Bédard, J. in Gomez,Note 49 afterstating that a finding of a lack of subjective fear is determinative only for a section 96 claim, adds that “subjective fear may sometimes be relevant when assessing the truth of the allegations of a person who claims to be a person in need of protection (…)”.
  • O’Keefe, J. in KuninNote 50: “A finding that a claimant lacks a subjective fear of persecution necessarily impugns any claimant’s credibility.” The Court does add a caveat to the effect that this finding may only impugn one aspect of the claimant’s credibility and does not equate to a finding that the claimant is less than credible in all aspects of the claim and thus an analysis of the claim under IRPA s. 97 may still be required.Note 51

When the Board concludes that a claimant who alleges having a fear is not credible concerning the existence of subjective fear, it almost always does so on the basis of some behaviour of the claimant which it considers to be inconsistent with that allegation. Case law has confirmed that there are certain ways that persons fearful of serious harm can normally be expected to act. As the Court stated in Aslam,Note 52

The Board would expect that individuals who fear for their personal safety and their life would not only flee at their earliest opportunity but would seek refugee protection as soon as they are beyond the reach of their persecutors and it is reasonable to do so.

Consequently, staying any longer than necessary in a country where a claimant fears persecution, voluntarily returning to that country, passing through other countries without asking for protection or failing to make a claim for protection immediately upon arrival in Canada are all behaviours which, in numerous cases, have been found to be indicative of a lack of subjective fear.Note 53 However, none of these behaviours mandates the rejection of a claim to Convention refugee status without further examination. The Board may be justified in drawing a negative inference when claimants are unable to provide satisfactory explanations for conduct that seems incompatible with their alleged fear.

In addition to seeking protection in a timely manner, there are other types of conduct normally associated with being fearful. If a claimant provides credible evidence demonstrating efforts to avoid detection, such as going into hiding,Note 54 this evidence is considered to support the existence of subjective fear.  Conversely, adverse inferences may be drawn when claimants fail to vary their routineNote 55 or to take other precautions against falling victim to the persecution they claim to fear.Note 56

5.4. Delay

When claimants do not take steps to seek protection promptly, decision-makers often conclude that their behaviour shows a lack of subjective fear. Case law has been consistent in saying that delay in making a claim to refugee status is not in itself determinative. Three often-cited Federal Court of Appeal decisions acknowledged that delay is, nonetheless, a relevant, and potentially important consideration.Note 57 In Huerta, Mr. Justice Létourneau wrote:

The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.Note 58

As Madam Justice Simpson explained in Cruz,Note 59 the reason why delay is an important factor in the assessment of a refugee claim is because it addresses the existence of a subjective fear, which is an essential element of a Convention refugee claim.

Although not generally a determinative factor in a refugee claim, there are circumstances in which delay can assume a decisive role. A claim to be a Convention refugee may be rejected when delay is accepted as evidence that establishes, on a balance of probabilities, that the claimant lacks subjective fear.Note 60 Such a determination would be made on the basis of a claimant's failure to provide good reasons for the delay. Mr. Justice Crampton remarked that it is

[…] well established that, in the absence of a satisfactory explanation for the delay, the delay can be fatal to such claim, even where the credibility of an applicant's claim has not otherwise been challenged.Note 61

The Board must weigh the evidence and it may reject an explanation for the delay if it finds it inadequate or implausible on reasonable grounds.

It is essential that decision-makers express clearly their findings on the credibility of a claimant’s explanation for behaving in a particular manner.Note 62  When the Board does not accept an explanation as valid, the member is obliged to give reasons.Note 63 In Martinez Requena,Note 64 the Board asked the claimant to explain why she had returned to Bolivia, and then simply concluded that she had no subjective fear of persecution.  Madam Justice Dawson held that the Board could not make that finding unless it found the evidence to be incredible - which it had not done. 

The length of the delay is often a factor taken into considerationNote 65 but it is not in and of itself determinative. While short delays may tend to be more easily explained,Note 66 even very long delays cannot be assumed to indicate a lack of subjective fear. They must be examined in light of the circumstances and the explanations offered by the claimant. Madam Justice Bédard reviewed a decisionNote 67 where the Board had found a six-year delay in claiming to be incompatible with the attitude of a person who feared for her life. However, the claimant was a minor when she arrived to live with some relatives in Canada and the Court held:

[…] There is a presumption that a person having a well-founded fear of persecution will claim refugee protection at the earliest opportunity. If they do not, the legitimacy of the subjective fear that they allege is called into question (Singh citation omitted) This presumption makes sense in the context of an adult refugee who, upon entering Canada, is expected to be aware that in order to stay in Canada indefinitely, he or she will need to regularize their status. However, the mere existence of delay in claiming cannot always be construed as indicating an absence of subjective fear. The delay, and even more importantly, the reasons for the delay, must be assessed in the context of the specific circumstances of each case

Canadian case law has consistently stressed that the assessment of the credibility and reasonableness of explanations must be done in light of the particular circumstances of the claimant. In the case of El-Naem,Note 68 the Courtfound that the 19-year-old Syrian claimant’s explanation for spending a year in Greece without claiming was not unreasonable “considering all of his circumstances.” The young man testified that he had heard that refugee protection in Greece was problematic and he feared deportation to Syria if he exposed his illegal status.  He was alone in Greece, anxious to join a brother in Canada who had successfully claimed refugee status. However, he first had to accumulate the money he needed to travel.

In a similar vein, case law has also pointed out the need to closely assess the reasons a claimant engages in behaviour that would normally be seen as incompatible with having a fear. In one case where the Board found that the claimant had no subjective fear because he continued to put himself at risk by returning home to protect his mother against her abusive husband, the Court observed that bonds of family loyalty may lead a person to engage in dangerous conduct that otherwise could be viewed as conduct inconsistent with a lack of subjective fear.Note 69

Psychological reports may provide useful insight into the reasons for a claimant's behaviour, and thus whether or not a particular way of behaving can be taken to be indicative of an absence of fear. In Diluna,Note 70 the Trial Division held, in obiter, that the Refugee Division should have considered a psychiatric assessment that supported the claimant's assertion that she delayed seeking refugee status due to post-traumatic stress syndrome.

Not all expert reports, however, are probative regarding the issue of subjective fear. In one case,Note 71 the Court noted that though there was a psychological report, it provided no explanation justifying the claimant's 14-month delay in claiming protection in Canada. In another case in which the claimant had voluntarily given up protection in the U.K.,Note 72 it was argued that her mental disorders would have affected the rationality of her decision to give up protection. The Court rejected that argument because the psychiatric report submitted was dated more than two years after she left the U.K. and did not establish that the claimant was suffering from any mental disorder at the time she gave up protection.

5.4.1. Delay in Leaving the Country of Persecution

Mr. Justice Shore stated in RahimNote 73 that "[T]he time it takes an applicant to leave his or her country of origin can be taken into account in determining whether that person had a subjective fear of persecution."

Delay in leaving the country if a claimant alleges he or she had reason to fear persecution there normally calls into question the credibility of the fear. In Zuniga,Note 74 the claimant alleged that he feared for his life and that of his family, and yet his wife and children, who already had visas, did not leave the country at the first opportunity. Nor did he himself follow as soon as he could. The whole family left Honduras five months after the principal claimant was issued his U.S. visa. The Court did not accept his explanation that he remained to arrange his papers and pay taxes, as reasonable.

The failure to leave in a timely manner must be assessed in light of all the circumstances.Note 75 In GebremichaelNote 76 the claimants remained in hiding in their country for a month, despite having acquired visas for the U.S.. The Board drew an adverse inference concerning their subjective fear, a conclusion which the Court upheld as reasonable and clearly explained. It is interesting to note, however, that as a preface to its analysis of the issue, the Court wrote that delay in fleeing a country could normally be justified if the claimant was in hiding at that time.

When a claim is based on a number of discriminatory or harassing incidents which culminate in an event which forces a person to leave his country, the Federal Court has warned that it is problematic to consider delay to be indicative of an absence of subjective fear.

In Voyvodov,Note 77 the first of the two claimants left Bulgaria after being beaten by skinheads. His partner stayed and endured other incidents of violence and discrimination. The Refugee Division considered that the first claimant had failed to meet his burden because he had experienced only one incident.  It then went on to express its concern about the second claimant having delayed his departure from the country. The Court observed:

[…] The tribunal appears to place the applicants in an impossible position. It implies that it does not believe Mr. Galev's claim of persecution because he only experienced one alleged attack due to his sexual orientation. On the other hand, it finds that Mr. Voyvodov is not credible because he delayed seeking international protection after being initially attacked.

The Court was similarly critical of the Board's conclusion in Shah,Note 78 describing the claimant as being "between a rock and a hard place". The Board rejected the claim essentially because the claimant waited a year and a half rather than fleeing when his troubles first started. The Court found the Board's conclusion unreasonable in view of the claimant's explanation that the threats had become progressively more serious, that he moved from home the same evening his life was threatened, and left the country the next month.

The analytical flaw was more fully explained by Justice Heneghan in IbrahimovNote 79:

[…] If a person's claim is actually based on several incidents which occur over time, the cumulative effects of which may amount to persecution, then looking to the beginning of such discriminatory or harassing treatment and comparing that to the date on which a person leaves the country to justify rejection of the claim on the basis of delay, undermines the very idea of cumulative persecution.

5.4.2. Failure to Seek Protection in Other Countries

A claimant’s behaviour after leaving his or her country, but before arriving in Canada, may also be taken into consideration in determining whether the subjective component of a well-founded fear has been established. Failure to seek the protection of another country which is also a signatory to the Convention may be a significant factor to consider but is not in itself determinative. Voluntarily leaving a country where the claimant could safely live is another example of behaviour that can cast doubt on a claimant’s subjective fear.Note 80

There is no provision in the Convention that obliges refugee claimants to seek asylum in the first country they reach.Note 81 However, there is a presumption that persons fleeing persecution will seek protection at the first opportunity, which would normally be in the first country they reach. Case law states that a negative inference can be drawn from a claimant's failure to claim in a safe third country, but it also clearly states that this failure cannot be a determinative.Note 82 The claimant’s explanation must be considered in order to determine whether the claimant’s behaviour can fairly be considered to be evidence of a lack of subjective fear.

For example, some jurisprudence has suggested that where the claimant had a legal status in the third country, and was therefore not at immediate risk of removal, it is not reasonable to draw a negative inference from the claimant’s failure to claim in that country.Note 83

Another important consideration is the age of the claimant. In Pulido Ruiz,Note 84 the Court noted that:

[I]t goes without saying that a child does not have the same capacities as an adult. Even though the IRB seemed to have considered [the applicant’s] age in its decision, it found that he should have behaved like an adult and claimed asylum at the earliest opportunity. However, [he] was barely 15 years old. It seems unlikely to us that an adolescent would know the complexities and subtleties of the administrative apparatus with respect to asylum and be able to gauge the rough waters of the immigration process in the United States without an adult’s help. Imposing such a burden on an adolescent seems unreasonable to us.

Whether or not a country is a signatory to the Convention is relevant to determining whether it is reasonable to expect the claimant to have sought protection there. It is clearly a factor for decision-makers to consider.Note 85

The significance of the failure to claim and the resulting conclusion of an absence of subjective fear is highlighted by the case of MemarpourNote 86 where, despite finding that the claimants had been denied a fair hearing, Madame Justice Simpson declined to send the case back for rehearing. She made this rather exceptional ruling because she had no doubt that the Board would again reject the claim, based on the claimant's conduct which indicated a total lack of a subjective fear of persecution. In the ten-year period after he left Iran the claimant studied and worked in several countries but never sought asylum in any of them. His testimony that he was deterred from claiming by the prospect of line-ups at embassies showed how little importance he attached to the issue of protection. Moreover, he travelled extensively on false documents, apparently little worried by the prospect of being discovered and deported to Iran.

In cases concerning claimants who do not claim in a third country, their reasons for not claiming are rarely as easy to dismiss as a reluctance to wait in line. There are many cases of claimants whose intention it is to claim refuge in Canada, and who simply transit through other countries on their way. Some claimants say that they were not aware that they could ask for asylum in the other country. Others choose not to claim in the third country because they have been warned that they have little chance of success there. A reviewing court will normally uphold a decision that considers whether the explanation is reasonable in light of the circumstances of the claimant, including whether they have engaged in other conduct that tends to support or undermine the subjective fear element. The following are examples that illustrate how the various factors have been weighed

  • In transit

    The Court has frequently held that a short stay in a safe third country en route to Canada is not necessarily considered a sufficiently material sojourn to create an expectation that the claimant would claim refugee status during that stay.Note 87

    A failure to make a refugee claim in a third country may raise doubt that a refugee claimant has a subjective fear (citation omitted). However, where a claimant had always planned to come to Canada, and merely was in transit during a stopover in a third country, the Court has held that such a situation does not undermine the subjective fear of persecution.Note 88
  • Family in Canada

    Failure to make a refugee claim in an en-route country because the claimant would rather make the claim in Canada because he or she has family here may be a valid reason for not making the claim at the first opportunity.Note 89

  • Ignorance of the process

    In Perez,Note 90 the Court upheld the Board's finding that the claimant who spent five years in the U.S. before claiming refugee protection in Canada did not provide convincing evidence of his subjective fear. His testimony that he was unaware he could claim asylum in the U.S. was found implausible in light of his repeated attempts to apply to stay under another U.S. program which offered temporary protection.

    In the case of Bello,Note 91 the claimant from Cameroon lived in France for seven years, traveled in adjoining countries and lived in the U.S. for another six months, without ever claiming refugee status. The Board found this to be inconsistent with a subjective fear of persecution. It noted that all the countries in question were either signatories to the 1951 Convention or to the 1967 Protocol. The reason given by the claimant for not seeking protection was that France supported the Cameroonian government, and as for the neighbouring countries, he did not know about claiming refugee status. The Court held that it was open to the Board to disbelieve the claimant had a subjective fear of persecution, given the delay in claiming refugee status. It noted that the Board's conclusion was also influenced by the claimant having returned twice to Cameroon.

  • Little hope of success

    In Madoui,Note 92 an Algerian claimant failed to claim during 19 months in Italy. He had been told by friends that he had little, if any, chance of obtaining refugee status in Italy. Despite statistics in evidence showing that similar claims were rarely accepted, the Board was not satisfied that the subjective component had been met and the Court saw no error in the Board’s assessment.Note 93

    In Mekideche,Note 94 when the Board asked why the claimant did not claim refugee status during his two years in Italy, he testified that it was because he believed that Algerian refugees would be denied and returned to Algeria. This belief was based on news reports that other European countries were not receptive to Algerian refugees. Noting that he travelled throughout Europe with false documentation before arriving in Canada, the Board stated that this was a risk that a person who feared persecution would not take. The Court found no error in the Board's conclusion that these two issues showed an absence of a subjective fear of persecution.

    In another case,Note 95 a young Pakistani claimant who arrived in the U.S. came to Canada after just nine days. He feared that he would not be considered for asylum because of the negative atmosphere towards persons from his part of the world following the September 11 attack. The Court held that the circumstances were comparable to those in El NaemNote 96 and that the Board had erred in drawing an unreasonable inference that there was no subjective basis to the claim.

    In LiblizadehNote 97, the Court quashed the decision of the Board when it found that there was no evidence before the panel that the claimant could realistically have applied for refugee status in Turkey, even though he was there 7 months, and in the U.S., where he was only in transit.

A few cases have pointed out that failure to claim in a third country may not be indicative of a lack of subjective fear in situations where a person is not anticipating a return to his or her country. These were the circumstances in Yoganathan.Note 98 Mr. Justice Gibson followed the same reasoning as the Court of Appeal in Hue.Note 99 Both cases involved seamen. Justice Gibson held that the CRDD erred in concluding that the claimant did not have a subjective fear of persecution as he had failed to claim refugee status at the first opportunity in other signatory countries: “The [claimant] had his ‘sailor’s papers’ and ‘a ship to sail on’. In the circumstances, he did not have to seek protection. He was safe from persecution in Sri Lanka.”

Leaving a country which has provided refuge and where a claimant has no fear of persecution is generally considered to be behaviour indicative of a lack of subjective fear. In Shahpari,Note 100 the Court suggested, in obiter, that:

Applicants should also remember that actions they themselves take which are intended to result in their not being able to return to a country which has already granted them Convention refugee status may well evidence an absence of the subjective fear of persecution in their original country from which they purport to be seeking refuge.

In Geron,Note 101 the Board concluded that the claimants, citizens of the Philippines, were not credible and lacked subjective fear, as evidenced by the long delay before they claimed refugee status and the fact that they had valid residence permits for Italy but allowed them to lapse during the 18 months they remained in Canada prior to making their claims. The Court held that the Board had not erred in failing to consider the objective basis of the claim; it could be dismissed in the absence of any credible evidence to support the claimants' subjective fear.

Even where the refuge is not necessarily a permanent one, questions about the claimant's fear will usually be raised whenever a safe haven is abandoned in order to claim refugee status in Canada. In Bains,Note 102 a claimant from India who applied for asylum in England, left after waiting five or six years without an answer. He explained that he had heard that the British authorities were removing claimants awaiting status, though he produced no evidence of this. The Court noted that the British authorities had clearly told the claimant that he would not be deported before a decision on his status had been made. The Court considered that the CRDD was justified in verifying the reason the claimant gave for leaving England and that it was reasonable to conclude that the claimant's decision to leave did not demonstrate a fear of being returned to India.

5.4.3. Delay in Making a Claim Upon Arrival in Canada

Mr. Justice Shore summarized the basic principles related to delay in claiming once in Canada:

There is a well-established principle to the effect that any person having a well-founded fear of persecution should claim refugee protection in Canada as soon as he or she arrives in the country, if that is his or her intent. On this point, the Federal Court of Appeal has already concluded that any delay in claiming refugee protection is an important factor which the Board may take into consideration in its analysis.  Such a delay indicates a lack of a subjective fear of persecution, since there is a presumption to the effect that a person having a well-founded fear of persecution will claim refugee protection at the first opportunity. Accordingly, in conducting its assessment, the Board is entitled to take into consideration the applicant’s delay in claiming refugee protection. [citations omitted]Note 103

There is case law dealing with the issue of timing; namely whether the proper reference point is always the date of arrival in Canada. The Court in GabeyehuNote 104 stated otherwise. The Court noted as a general proposition that “[d]elay in making a claim can only be relevant from the date as of which [a claimant] begins to fear persecution.”  It is the same principle applied to a sur place claimNote 105 in Tang.Note 106

Because delay is relevant only after the claimant has a reason to fear persecution, it has been argued that negative inferences cannot be drawn when persons who have legal status in Canada fail to claim. In Gyawali,Note 107 Madame Justice Tremblay-Lamer agreed that there exist situations in which negative inferences may not be drawn from a failure to apply for refugee status immediately upon arrival. She found that a valid status in Canada could constitute a good reason for not claiming refugee protection. The Court drew a parallel between the sailor on the ship whose contract expired, leaving him nowhere to go but home,Note 108 and the claimant, who had a student visa and had also made an application for permanent residency in Canada. Until he could no longer pay for his studies, he had no reason to fear having to return to his country. Both the sailor and the student had left their countries fearing persecution, but having found a safe place to stay, they felt no immediate need to apply for refugee status. As soon as they found themselves at risk of being forced to return home, they filed claims for refugee protection.

In several cases, the Court has upheld Board decisions in which possession of a valid but temporary status was not found to be an acceptable reason to delay claiming protection. Madame Justice Tremblay-Lamer, the year before her ruling in Gyawali, held that it was open to the Board to reject a claim based largely on a two-year delay in claiming refugee status. The claimant in that caseNote 109 was on a student visa in Canada. On the advice of a consultant, he applied for permanent residence and claimed refugee status only after his permanent residence application was unsuccessful. Other cases of persons in status were similarly rejected in 2005 and 2007.Note 110 In 2009, Mr. Justice de Montigny wrote:

It is trite law that a delay in submitting a refugee protection claim, while not decisive, remains a relevant element that the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant: Huerta [citation omitted]. The claimant knew upon his arrival in Canada that he was only authorized to stay in Canada for a specific and limited period of time. Under these circumstances, it was reasonable to expect that he would regularize his status as soon as possible if he truly feared for his life and physical integrity in India.Note 111

Apart from persons who do not feel the need to claim immediately, there are claimants who have no knowledge of the refugee process or their eligibility to claim protection. In the absence of any adverse credibility finding, the explanation that a claimant did not know that she could claim refugee status based on spousal abuse has successfully been used to refute findings that lengthy delays in claiming were due to an absence of subjective fear.Note 112

In Ahshraf,Note 113 the Court found that the Board’s finding that the claimant’s five-year delay in filing her claim showed her fear was not genuine was unreasonable as there was evidence that while her husband was in Canada she had been entirely under his influence and never left the house alone.

In a case where the claimant did not claim refugee status for four years because he wanted to know what was needed to claim,Note 114 his explanation was not accepted. The Board interpreted the fact that he renewed his visa twice without ever making inquiries about claiming refugee status as evidence that he had no subjective fear. The Court saw nothing unreasonable about that conclusion.

Depending on the advice or help of others has also been held to be an unsatisfactory reason to delay claiming.  For example, in Singh,Note 115 the claimant waited almost one and a half years after he arrived in Canada before filing his refugee claim. The RPD did not accept the claimant’s explanation that he had asked the gurdwara management to help him file for political asylum but that whenever he asked them about his immigration status, he received no satisfactory response. The Court dismissed the judicial review on the grounds of delay, saying it was not reasonable that someone fearing for his life would not take any action himself. When the claimant had not received any help for almost a year and a half, he should have taken the initiative and inquired about his rights and obligations under the Canadian immigration system.

5.5. Re-Availment of Protection

The issue of re-availmentNote 116 arises in two contexts: 1) the assessment of subjective fear in the determination of the refugee claim, and 2) the assessment of a cessation application made by the Minister under IRPA, section 108(2).

Return to the country of nationality is the kind of re-availment that is most often discussed in the case law. Citing several cases in Kabengele,Note 117 Mr. Justice Rouleau stated:

It is quite proper for the Refugee Division to take the plaintiff's actions into account in assessing his subjective fear. It is reasonable for it to conclude that the fact he returned to the country where he feared persecution makes the existence of such a fear unlikely (citations omitted)

However, the Court has cautioned that the mere fact of returning to a country of nationality is not determinative of whether a refugee claimant possesses a subjective fear, or has ceased to be a Convention refugee. The Court gave the examples of evidence of a claimant’s belief that country conditions have changed or evidence of a claimant’s temporary visit while he or she remained in hiding, that would be evidence inconsistent with a finding of a lack of subjective fear.Note 118

The credibility assessment of the reasons claimants give for returning to their country is important.  If they clearly state that they did not intend to re-avail themselves of the protection of their country and assert not having lost their subjective fear, absent an adverse finding of credibility, the Board would err in finding that the claimants had re-availed themselves of protection and did not have a subjective fear.Note 119 In Kanji, the Board made no express finding that it disbelieved the claimant's evidence and it gave no reasons for doing so. The Court held that the claimant’s clear statement that she did not re-avail herself of the protection of India, nor lose her subjective fear contradicted and negated any possible finding to the contrary on the basis of the purely circumstantial evidence of her returns to India.

In Caballero,Note 120 where the claimant testified that he went back to Honduras intending to stay a year in order to sell his land, the Court agreed with the Refugee Division that his behaviour was inconsistent with a well-founded fear of persecution.

Even where the motivation for returning may be seen as quite compelling, a consideration of all the circumstances may result in a negative inference as to the existence of subjective fear. In Arayo,Note 121 the principal claimant had returned to Chile and remained there for some nine weeks while she obtained the permission of the father of her child to remove the child from Chile. While the evidence regarding re-availment clearly indicated that it was for the sole purpose of allowing the mother to bring her son to Canada with her, the evidence did not go so far as to establish that other arrangements could not have been made so that the two claimants could have left Chile together when the mother first left.

In Prapaharan,Note 122 where the claimants alleged they had suffered persecutory treatment before the first time they left Sri Lanka as well as after their return there, with the main claims pre-dating the claimants’ return, the Court states that “subsequent persecution after re-availment does not preclude a person from making a claim for refugee status without being faced with the re-availment argument.”

Claimants may exhibit an apparent absence of subjective fear not only in physically returning to their home country, but also in actions such as obtaining or renewing a passport or travel documentNote 123, and leaving or emigrating through lawful channels.Note 124 The evidence is all assessed in the same way: the surrounding circumstances and the credibility of the claimant’s explanations determine whether it can reasonably be concluded that they indicate the absence of the subjective component of a well-founded fear of persecution.

In Vaitialingam,Note 125 although the claimant argued that she did not intend to remain in Sri Lanka, the Court was satisfied that it was reasonable for the Board to conclude that the claimant did not harbour a genuine fear of persecution in Sri Lanka because she had voluntarily made two trips back to her country. The Board also considered that the claimant's renewal of her Sri Lankan passport for the purpose of travelling there indicated her willingness to entrust her welfare to the state of Sri Lanka.

In Chandrakumar,Note 126 the Court held that the Board erred in drawing the inference that the applicant re-availed himself of his country's protection from the mere fact that he renewed his passport. More evidence was required, particularly concerning the claimant’s motivations in renewing his passport, namely whether his intention was to re-avail himself of Sri Lanka’s protection.

The Federal Court has held that it is an error to find a lack of subjective fear when the claimant was removed to his or her country, and thus did not return voluntarily. In Kurtkapan,Note 127 the Court found the Board's conclusion that the claimant lacked a subjective basis for a fear of persecution "perverse, capricious and unreasonable" because it ignored the fact that he was deported to Turkey and did not return there voluntarily.

5.6. Sur Place ClaimsNote 128 and Well-Founded Fear

It is proper for the Refugee Division, when considering the subjective element, to look at the fact that the claimant took allegedly self-endangering actions after making his or her claim, and to inquire into the claimant’s motivation.Note 129 However, the case law is consistent that if dealing with a sur place claim, even when the motivation indicates the absence of subjective fear, the analysis cannot end there.Note 130

Mr. Justice Hugessen affirmed the relevance of motive in assessing the subjective component of a well-founded fear in cases where the claimants themselves were responsible for creating the circumstances leading to their sur place claims, but he also warned that the objective component nonetheless had to be assessed. In Asfaw,Note 131 he stated:

In my view, it has been the law for a very long time that a Convention refugee claimant must demonstrate both an objective and a subjective basis for his fear of persecution. It is my view that the case will be rare where there is an objective fear but not a subjective fear, but such cases may exist. In my view, it is certainly relevant to examine the motives underlying a claimant's participation in demonstrations such as this one in order to determine whether or not that claimant does have a subjective fear. The Board's examination of the motives was therefore not an irrelevant matter and the determination which they reached on that subject was one which was open to them on the evidence. It would I agree have been an error if the Board had stopped its examination at that point and had not also looked at whether or not the claimant had an objective fear but, they did not commit that error. The Board looked at the evidence with respect to the objective basis for the applicant's fear of return and found it not to be well-founded. That was a determination which was equally open to the Board on the evidence before it and I can take no issue with it.

In a similar case,Note 132 decided on the same date, he stated:

The argument is that it was irrelevant for the Board to examine the applicant's motives in acting as she did. In the view which I and other members of this Court have previously expressed, it is not irrelevant. The matter of motive goes to the genuineness or otherwise of the applicant's expressed subjective fear of persecution. That said, however, there is and must always be an intimate interplay between the subjective and objective elements of the fear of persecution which is central to the definition of convention refugee and, I have previously expressed the view that it would be an error for a Board to rely exclusively on its view that a claimant did not have a subjective fear of persecution without also examining the objective basis for that fear. The Board in this case, however, did not commit an error of that sort.

In Ejtehadian,Note 133 the Court stated that it is necessary to consider the credible evidence of the claimant's activities while in Canada independently from his motives for conversion, and assess the risk of persecution on return.

Table of Cases

  1. A.G.I. v. M.C.I. (F.C.T.D., no. IMM-5771-01), Kelen, December 11, 2002; 2002 FCT 1287
  2. Abawaji, Abdulwahid Haji Hassen v. M.C.I. (F.C., no. IMM-6276-05), Mosley, September 6, 2006; 2006 FC 1065
  3. Abdi Ahmed, Ilham v. M.C.I. (F.C., no. IMM-3178-12), O’Reilly, December 18, 2012; 2012 FC 1494
  4. Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.)
  5. Ahmad, Mahmood v. M.C.I. (F.C.T.D., no. IMM-1012-01), Tremblay-Lamer, February 14, 2002; 2002 FCT 171
  6. Ahoua, Wadjams Jean-Marie v. M.C.I. (F.C., no. IMM-1757-07), Blais, November 27, 2008; 2007 FC 1239
  7. Akacha, Kamel v. M.C.I. (F.C., no. IMM-548-03), Pinard, December 19, 2003; 2003 FC 1489
  8. Akram, Ejaz v. M.C.I. (F.C., no. IMM-3106-03), Pinard, July 2, 2004; 2004 FC 927
  9. Alekozai, Rafi v. M.C.I. (F.C., no. IMM-8260-13), Rennie, February 6, 2015; 2015 FC 158
  10. Anandasivam, Vallipuram v. M.C.I. (F.C.T.D., no. IMM-4748-00), Lemieux, October 10, 2001
  11. Andrade Ramos, Norberto v. M.C.I. (F.C. no., IMM-1867-10), Russell, January 10, 2011; 2011 FC 15
  12. Araya, Carolina Isabel Valenzuela v. M.C.I. (F.C.T.D., no. IMM-3948-97), Gibson, September 4, 1998
  13. Ascencio Gutierrez, Arnoldo Maximilano v. M.C.I. (F.C., no. IMM-4903-13), O'Keefe, March 3, 2015; 2015 FC 266
  14. Asfaw, Napoleon  v. M.C.I.  (F.C.T.D., no. IMM-5552-99), Hugessen, July 18, 2000
  15. Ashraf, Shahenaz v. M.C.I. (F.C., no. IMM-5375-08), O’Reilly, April 19, 2010; 2010 FC 425
  16. Aslam, Muhammad v. M.C.I. (F.C., no. IMM-3264-05), Shore, February 16, 2006; 2006 FC 189
  17. Assadi, Nasser Eddin v. M.C.I. (F.C.T.D., no. IMM-2683-96), Teitelbaum, March 25, 1997
  18. Awadh, Ahmed v. M.C.I. (F.C., no. IMM-4221-13), Noël, May 29, 2014; 2014 FC 521
  19. Bains, Gurmukh Singh v. M.C.I.  (F.C.T.D., no. IMM-3698-98), Blais, April 21, 1999
  20. Bello, Salihou v. M.C.I. (F.C.T.D., no. IMM-1771-96), Pinard, April 11, 1997
  21. Beltran, Luis Fernando Berrio v. M.C.I. (F.C.T.D., no. IMM-829-96), Dubé, October 29, 1996
  22. Bibby-Jacobs, Shannon Shenika v. M.C.I. (F.C., no. IMM-2508-12), Martineau, October 9, 2012; 2012 FC 1176
  23. Caballero, Fausto Ramon Reyes v. M.E.I. (F.C.A., no. A-266-91), Marceau (dissenting), Desjardins, Létourneau, May 13, 1993
  24. Castillejos, Jaoquin Torres v. M.C.I. (F.C.T.D., no. IMM-1950-94), Cullen, December 20, 1994
  25. Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593
  26. Chandrakumar v. M.E.I. (F.C.T.D., no. A-1649-92), Pinard, May 16, 1997
  27. Chichmanov, Yordan Anguelov v. M.E.I. (F.C.A., no. A-243-91), Isaac, Heald, Létourneau, September 3, 1992
  28. Chudinov, Nickolai v. M.C.I. (F.C.T.D., no. IMM-2419-97), Joyal, August 14, 1998
  29. Correira, Osvaldo De Matos v. M.C.I. (F.C., no. IMM-8077-04), O’Keefe, August 3, 2005, 2005 FC 1060
  30. Cruz v. Canada (Minister of Employment and Immigration) (F.C.T.D., no. IMM-3848-93) Simpson, June 16, 1994
  31. 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.)
  32. Dirie, Abdulle Milgo v. M.C.I. (F.C.T.D., no. IMM-5428-97), Cullen, October 6, 1998
  33. Duarte, Augustina Castelanos v. M.C.I. (F.C.T.D., no. IMM-6616-02), Kelen, August 21, 2003; 2003 FCT 988
  34. Ejtehadian, Mostafa v. M.C.I. (F.C., no. IMM-2930-06), Blanchard, February 12, 2007; 2007 FC 158
  35. El-Naem, Faisal v. M.C.I. (F.C.T.D., no. IMM-1723-96), Gibson, February 17, 1997. Reported: El-Naem v. Canada (Minister of Citizenship and Immigration) (1997), 37 Imm. L.R. (2d) 304 (F.C.T.D.)
  36. Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003; 2003 FC 1324
  37. Fernando v. M.C.I. (F.C.T.D., no. IMM-4601-00), Nadon, July 5, 2001
  38. Fernandopulle, Eomal v. M.C.I. (F.C., no. IMM-3069-03), Campbell, March 18, 2004, 2004 FC 415
  39. Fernandopulle, Eomal v. M.C.I. (F.C.A., no. A-217-04), Sharlow, Nadon, Malone, March 8, 2005, 2005 FCA 91
  40. Gabeyehu, Bruck v. M.C.I. (F.C.T.D., no. IMM-863-95), Reed, November 8, 1995
  41. Gebetas, Ergun v. M.C.I. (F.C., no. IMM-11313-12), Shore, December 10, 2013; 2013 FC 1241
  42. Gebremichael, Addis v. M.C.I. (F.C., no. IMM-2670-05), Russell, May 1, 2006; 2006 FC 547
  43. Geron, Fernando Bilog v. M.C.I. (F.C.T.D., no. IMM-4951-01, Blanchard, November 22, 2002; 2002 FCT 1204
  44. Ghotra, Balkar Singh v. M.C.I. (C.F., No. IMM-5472-15), Bell, October 19, 2016; 2016 CF 1161
  45. Gomez v. Canada (Minister of Citizenship and Immigration) (F.C., IMM-1412-10), Bédard, October 22, 2010
  46. Gopalarasa, Raveendran v. M.C.I. (F.C., no. IMM-4617-13), Diner, November 26, 2014; 2014 FC 1138
  47. Gyawali, Nirmal v. M.C.I. (F.C., no. IMM-926-03), Tremblay-Lamer, September 24, 2003; 2003 FC 1122
  48. Hatami, Arezo v. M.C.I.  (F.C.T.D., no. IMM-2418-98), Lemieux, March 23, 2000
  49. Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988
  50. Herrera, William Alexander Cruz v. M.C.I. (F.C., IMM-782-07), Beaudry, October 1, 2007
  51. Hidalgo Tranquino, Claudia Isabel v. M.C.I. (F.C., no. IMM-86-10), Mactavish, July 29, 2010; 2010 FC 793
  52. Hue, Marcel Simon Chang Tak v. M.E.I. (F.C.A., no. A-196-87), Marceau, Teitelbaum, Walsh, March 8, 1988
  53. Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugessen, Desjardins, Létourneau, March 17, 1993.  Reported:  Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.)
  54. Ibrahimov, Fikrat v. M.C.I. (F.C., no. IMM-4258-02), Heneghan, October 10, 2003; 2003 FC 1185
  55. Ilie, Lucian Ioan v. M.C.I. (F.C.T.D., no. IMM-462-94), MacKay, November 22, 1994
  56. Ilyas, Muhammad v. M.C.I. (F.C., no. IMM-5636-03), Russell, September 16, 2004; 2004 FC 1270
  57. Ioda, Routa v. M.E.I. (F.C.T.D., no. 92-A-6604), Dubé, June 18, 1993.  Reported:  Ioda v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 294 (F.C.T.D.)
  58. Ismayilov, Anar v. M.C.I. (F.C., no. IMM-7263-14), Mactavish, August 26, 2015; 2015 FC 1013
  59. John, Shontel Dion v. M.C.I. (F.C., no. IMM-1683-10), Bédard, December 14, 2010; 2010 FC 1283
  60. Kabengele v. M.C.I. (F.C. no., IMM-1422-99), Rouleau, November 16, 2000
  61. Kamana, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999
  62. Kanji, Mumtaz Badurali v. M.C.I. (F.C.T.D., no. IMM-2451-96), Campbell, April 4, 1997
  63. Kunin, Aleksandr v. M.C.I. (F.C., no. IMM-5225-09), O’Keefe, November 4, 2010; 2010 FC 1091
  64. Kurtkapan, Osman v. M.C.I. (F.C.T.D., no. IMM-5290-01), Heneghan, October 25, 2002, 2002 FCT 1114
  65. 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.)
  66. Lameen, Ibrahim v. S.S.C. (F.C.T.D., no. A-1626-92), Cullen, June 7, 1994
  67. Li, Yi Mei v. M.C.I. (F.C.A., no. A-31-04), Rothstein, Noël, Malone, January 5, 2005; 2005 FCA 1
  68. Liblizadeh, Hassan v. M.C.I. (F.C.T.D., no. IMM-5062-97), MacKay, July 3, 1998
  69. M.C.I. v. Sellan, Theyaseelan (F.C.A. no. A-116-08), Desjardins, Nadon, Blais, December 2, 2008; 2008 FCA 381
  70. Madoui, Nidhal Abderrah v. M.C.I. (F.C.T.D., no. IMM-660-96), Denault, October 25, 1996
  71. Mailvakanam, Subhas v. M.C.I. (F.C., no. IMM-3155-11), Scott, December 6, 2011; 2011 FC 1422
  72. Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.)
  73. Manage, Pierrette v. M.C.I. (F.C., no. IMM-4966-13), Kane, April 17, 2014; 2014 FC 374
  74. Maqdassy, Joyce Ruth  v. M.C.I. (F.C.T.D., no. IMM-2992-00), Tremblay-Lamer, February 19, 2002; 2002 FCT 182
  75. Martinez Requena, Ericka Marlene v. M.C.I. (F.C., no. IMM-4725-06), Dawson, September 27, 2007; 2007 FC 968
  76. Maximilok, Yuri v. M.C.I.  (F.C.T.D., no. IMM-1861-97), Joyal, August 14, 1998
  77. Mekideche, Anouar v. M.C.I. (F.C.T.D., no. IMM-2269-96), Wetston, December 9, 1996
  78. Memarpour, Mahdi v. M.C.I. (F.C.T.D., no. IMM-3113-94), Simpson, May 25, 1995
  79. Mendez, Alberto Luis Calderon v. (F.C., no. IMM-1837-04), Teitelbaum, January 27, 2005; 2005 FC 75
  80. Menjivar, Carlos Othmar Navarrete v. M.C.I. (F.C., no. IMM-9660-04), Dawson, January 6, 2006; 2006 FC 11
  81. Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.)
  82. Milian Pelaez, Rogelio v. M.C.I. (F.C., no. IMM-3611-11), de Montigny, March 2, 2012; 2012 FC 285
  83. Molano Fonnoll, German Guillermo v. M.C.I. (F.C., no. IMM-2626-11), Scott, December 12, 2011; 2011 FC 1461
  84. Mubengaie Malaba, Gea v. M.C.I. (F.C., no. IMM-3814-12), Martineau, January 28, 2013; 2013 FC 84
  85. Natynczyk v. Canada (Minister of Employment and Immigration), (F.C., no. IMM-2025-03), O’Keefe, June 25, 2004
  86. Nazir, Qaiser Mahmood v. M.C.I. (F.C., no. IMM-3857-04), Harrington, February 3, 2005; 2005 FC 168
  87. Ndambi, Guy v. M.C.I. (F.C., no. IMM-12682-12), Roy, January 31, 2014; 2014 FC 117
  88. Nel, Charl Willem v. M.C.I. (F.C., no. IMM-4601-13), O’Keefe, September 4, 2014; 2014 FC 842
  89. Ngongo, Ngongo v M.C.I. (F.C.T.D., no. IMM-6717-98), Tremblay-Lamer, October 25, 1999
  90. Nijjer, Yadhwinder Singh v. M.C.I. (F.C., no. IMM-340-09), de Montigny, December 9, 2009; 2009 FC 1259
  91. Niyonkuru, Joseph v. M.C.I. (F.C., no. IMM-4230-04), De Montigny, February 4, 2005, 2005 FC 174
  92. Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592 (C.A.)
  93. Owobowale, Lillian Naomi v. M.C.I. (F.C., no. IMM-2025-10), Zinn, November 16, 2010; 2010 FC 1150
  94. Packinathan, Lindan Lorance v. M.C.I. (F.C., no. IMM-6640-09), Snider, August 23, 2010; 2010 FC 834.
  95. Parada, Felix Balmore v. M.C.I. (F.C.T.D., no. A-938-92), Cullen, March 6, 1995
  96. Parmar, Satnam Singh v. M.C.I. (F.C.T.D., no. IMM-838-97), Joyal, January 21, 1998
  97. Paszkowska: M.E.I. v. Paszkowska, Malgorzata (F.C.A., no. A-724-90), Hugessen, MacGuigan, Décary, April 16, 1991.  Reported:  Canada (Minister of Employment and Immigration) v. Paszkowska (1991), 13 Imm. L.R. (2d) 262 (F.C.A.)
  98. Patel: Canada (Minister of Citizenship and Immigration) v. Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008; 2008 FC 747
  99. Perez, Franklin Antonio v. M.C. I. (F.C., no. IMM-4450-09), Boivin, March 30, 2010; 2010 FC 345
  100. Peti, Qamile, v. M.C.I. (F.C., no. IMM-1764-11), Scott, January 19, 2012; 2012 FC 82
  101. Petrescu, Mihai v. S.G.C. (F.C.T.D., no. A-980-92), Tremblay-Lamer, October 26, 1993
  102. Ponniah, Manoharan v. M.E.I. (F.C.A., no. A-345-89), Heald, Hugessen, Desjardins, May 16, 1991.  Reported:  Ponniah v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 241 (F.C.A.)
  103. Prapaharan, Sittampalam v. M.C.I, (F.C. no. IMM-3667-00), McKeown, March 30, 2001; 2001 FCT 272
  104. Pulido Ruiz, Cristian Danilo v. M.C.I. (F.C., no. IMM-2819-11), Scott, February 24, 2012; 2012 FC 258
  105. Rahim, Ziany v. M.C.I. (F.C., no. IMM-2729-04), Shore, January 18, 2005, 2005 FC 18
  106. Rajagopal, Gnanathas v. M.C.I. (F.C., no. IMM-1350-11), Hughes, November 10, 2011; 2011 FC 1277
  107. Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984.  Reported:  Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.)
  108. Ramanathy, Murugesakumar v. M.C.I. (F.C., no. IMM-1241-13), Mosley, May 27, 2014; 2014 FC 511
  109. Ramirez-Osorio, Alexander v. M.C.I. (F.C., no. IMM-7418-12), Shore, May 3, 2013; 2013 FC 461
  110. Ramos Contreras, Manuel v. M.C.I. (F.C., no. IMM-4188-08), Heneghan, May 20, 2009; 2009 FC 525
  111. Ribeiro, Wender Magno v. M.C.I. (F.C., no. IMM-8843-04), Dawson, October 11, 2005; 2005 FC 1363
  112. Rivera, Jesus Vargas v. M.C.I. (F.C., no. IMM-5826-02), Beaudry, November 5, 2003; 2003 FC 1292
  113. Rodrigues, Gustavo Adolfo v. M.C.I. (F.C., no. IMM-2214-11), Pinard, January 6, 2011; 2012 FC 4
  114. Rojas, Carlos Ramirez v. M.C.I. (F.C., no. IMM-6560-13), Zinn, February 27, 2015; 2015 FC 250
  115. Sabapathy, Thevi (F.C.T.D., no. IMM-1507-96), Campbell, March 27, 1997
  116. Salguero, Erbin Salomon Rosales v. M.C.I. (F.C., no. IMM-4402-04), Mactavish, May 18, 2005; 2005 FC 716
  117. Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.)
  118. Salomon, Jonathan Castro v. M.C.I. (F.C., no. IMM-1120-17), Locke, October 6, 2017; 2017 FC 888
  119. Sandoval Mares, Martha v. M.C.I. (F.C., no. IMM-2716-12), Gagné, March 25, 2013; 2013 FC 297
  120. Satiacum: M.E.I. v. Satiacum, Robert (F.C.A., no. A-554-87), Urie, Mahoney, MacGuigan, June 16, 1989.  Reported:  Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.)
  121. Seifu, Eshetu v. M.E.I. (F.C.A., no. A-277-82), Pratte, Le Dain, Hyde, January 12, 1983
  122. Shah, Mahmood Ali v. M.C.I. (F.C., no. IMM-4425-02), Blanchard, September 30, 2003; 2003 FC 1121
  123. Shahpari, Khadijeh v. M.C.I. (F.C.T.D., no. IMM-2327-97), Rothstein, April 3, 1998
  124. Shanmugarajah, Appiah v. M.E.I. (F.C.A., no. A-609-91), Stone, MacGuigan, Henry, June 22, 1992
  125. Singh, Nirmal v. M.C.I. (F.C., no. IMM-7334-05), Teitelbaum, June 13, 2006, 2006 FC 743
  126. Singh, Pritam v. M.C.I. (F.C., no. IMM-2513-06), Shore, January 25, 2007; 2007 FC 62
  127. Singh, Sebastian Swatandra v. M.C.I. (F.C.T.D., no. IMM-3840-97), Nadon, December 7, 1998
  128. Sivaraththinam, Mayooran v. M.C.I.  (F.C., no. IMM-13174-12), Annis, February 20, 2014; 2014 FC 162
  129. Tabet-Zatla, Mohamed v. M.C.I. (F.C.T.D., no. IMM-6291-98), Tremblay-Lamer, November 2, 1999
  130. Tang, Xiaoming  v. M.C.I. (F.C.T.D., no. IMM-3650-99), Reed, June 21, 2000
  131. Thanapalasingam, Kengeswaran v. M.C.I. (F.C., no. IMM-10063-12), Phelan, July 29, 2013; 2013 FC 830
  132. Tung, Zhang Shu v. M.E.I. (F.C.A., no. A-220-90), Heald, Stone, Linden, March 21, 1991
  133. Vaitialingam v. M.C.I. (F.C., no. IMM-9445-03), O’Keefe, October 20, 2004, 2004 FCT 1459
  134. Velez, Liliana v. M.C.I. (F.C., no. IMM-5660-09), Crampton, September 15, 2010; 2010 FC 923
  135. Voyvodov, Bogdan Atanassov v. M.C.I. (F.C.T.D., no. IMM-5601-98), Lutfy, September 13, 1999
  136. Ward:  Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85
  137. Williams, Debby v. S.S.C. (F.C.T.D., no. IMM-4244-94), Reed, June 30, 1995
  138. Wong, Siu Ying v. M.E.I. (F.C.A., no. A-804-90), Heald, Marceau, Linden, April 8, 1992.  Reported:  Wong v. Canada (Minister of Employment and Immigration) (1992), 141 N.R. 236 (F.C.A.)
  139. Yeboah, Christian v. M.E.I. (F.C.T.D., no. 92-A-7049), Teitelbaum, July 16, 1993.  Reported:  Yeboah v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 81 (F.C.T.D.)
  140. Yoganathan, Kandasamy v. M.C.I. (F.C.T.D., no. IMM-3588-97), Gibson, April 20, 1998
  141. Yuan, Xin v. M.C.I. (F.C., no. IMM-5365-14), Boswell, July 28, 2015; 2015 FC 923
  142. Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.)
  143. Zewedu, Haimanot v. M.C.I. (F.C.T.D., no. IMM-5564-99), Hugessen, July 18, 2000
  144. Zuniga, Alexis Ramon Garcia v. S.C.C. (F.C.T.D., no. IMM-118-94), Teitelbaum, July 4, 1994

Notes

Note 1

Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.) at 404.

Return to note 1 referrer

Note 2

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 723.

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Note 3

M.E.I. v. Paszkowska, Malgorzata (F.C.A., no. A-724-90), Hugessen, MacGuigan, Décary, April 16, 1991. Reported: Canada (Minister of Employment and Immigration) v. Paszkowska (1991), 13 Imm. L.R. (2d) 262 (F.C.A.).

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Note 4

Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.), at 258.

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Note 5

Fernandopulle, Eomal v. M.C.I. (F.C., no. IMM-3069-03), Campbell, March 18, 2004, 2004 FC 415, at para. 10. In this case, Mr. Justice Campbell rejected the argument that there is a rebuttable presumption under Canadian law that a person who has been the victim of persecution in the past has a well-founded fear of persecution. The ruling was confirmed by the Federal Court of Appeal in Fernandopulle, Eomal v. M.C.I. (F.C.A., no. A-217-04), Sharlow, Nadon, Malone, March 8, 2005, 2005 FCA 91.

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Note 6

M.E.I. v. Satiacum, Robert (F.C.A., no. A-554-87), Urie, Mahoney, MacGuigan, June 16, 1989. Reported: Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.).

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Note 7

Natynczyk v. Canada (Minister of Employment and Immigration), (F.C., no. IMM-2025-03), O’Keefe, June 25, 2004, at para. 71.

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Note 8

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.).

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Note 9

Awadh, Ahmed v. M.C.I. (F.C., no. IMM-4221-13), Noël, May 29, 2014; 2014 FC 521.

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Note 10

Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.), at 682. For a case where the Court does an in-depth analysis of the RPD’s language and finds that it incorrectly required the claimant to prove persecution on a balance of probabilities, see Ramanathy, Murugesakumar v. M.C.I. (F.C., no. IMM-1241-13), Mosley, May 27, 2014; 2014 FC 511.

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Note 11

Seifu, Eshetu v. M.E.I. (F.C.A., no. A-277-82), Pratte, Le Dain, Hyde, January 12, 1983. 

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Note 12

Adjei., supra, footnote 10 at 683.

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Note 13

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

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Note 14

Adjei, supra, footnote 10 at 682-3.

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Note 15

Yeboah, Christian v. M.E.I. (F.C.T.D., no. 92-A-7049), Teitelbaum, July 16, 1993 at para. 53. Reported: Yeboah v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 81 (F.C.T.D.). The Court in Li, supra, footnote 13, considered that the word “would” implies a probability test.

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Note 16

Thanapalasingam, Kengeswaran v. M.C.I. (F.C., no. IMM-10063-12), Phelan, July 29, 2013; 2013 FC 830, at para. 19.

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Note 17

Ponniah, Manoharan v. M.E.I. (F.C.A., no. A-345-89), Heald, Hugessen, Desjardins, May 16, 1991. Reported: Ponniah v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 241 (F.C.A.), at 245.

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Note 18

Ioda, Routa v. M.E.I. (F.C.T.D., no. 92-A-6604), Dubé, June 18, 1993. Reported: Ioda v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 294 (F.C.T.D.).

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Note 19

Rajagopal, Gnanathas v. M.C.I. (F.C., no. IMM-1350-11), Hughes, November 10, 2011; 2011 FC 1277, at para. 11.

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Note 20

Sivaraththinam, Mayooran v. M.C.I.  (F.C., no. IMM-13174-12), Annis, February 20, 2014; 2014 FC 162.

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Note 21

See Gopalarasa, Raveendran v. M.C.I. (F.C., no. IMM-4617-13), Diner, November 26, 2014; 2014 FC 1138, at para. 27.

Return to note 21 referrer

Note 22

Chichmanov, Yordan Anguelov v. M.E.I. (F.C.A., no. A-243-91), Isaac, Heald, Létourneau, September 3, 1992. 

Return to note 22 referrer

Note 23

Petrescu, Mihai v. S.G.C. (F.C.T.D., no. A-980-92), Tremblay-Lamer, October 26, 1993, at para. 20.

Return to note 23 referrer

Note 24

Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984. Reported: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), at 134.

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Note 25

In Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, at 664 (para. 134), Major, J. stated: “The objective component of the test requires an examination of the ‘objective situation’ and the relevant factors include the conditions in the applicant’s country of origin and the laws in that country together with the manner in which they are applied.”

Return to note 25 referrer

Note 26

Kamana, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999.

Return to note 26 referrer

Note 27

Tabet-Zatla, Mohamed v. M.C.I. (F.C.T.D., no. IMM-6291-98), Tremblay-Lamer, November 2, 1999.

Return to note 27 referrer

Note 28

Tabet-Zatla, ibid., was followed in Fernando v. M.C.I.  (F.C.T.D., no. IMM-4601-00), Nadon, July 5, 2001 and Anandasivam, Vallipuram v. M.C.I. (F.C.T.D., no. IMM-4748-00), Lemieux, October 10, 2001. Similarly, the same principle was applied in Akacha, Kamel v. M.C.I. (F.C., no. IMM-548-03), Pinard, December 19, 2003; 2003 FC 1489 at para. 5; and Herrera, William Alexander Cruz v. M.C.I. (F.C., IMM-782-07), Beaudry, October 1, 2007, at para. 23, which followed Kamana.

Return to note 28 referrer

Note 29

Maqdassy, Joyce Ruth v. M.C.I. (F.C.T.D., no. IMM-2992-00), Tremblay-Lamer, February 19, 2002; 2002 FCT 182.

Return to note 29 referrer

Note 30

Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.), at 632.

Return to note 30 referrer

Note 31

Maqdassy, supra, footnote 29.

Return to note 31 referrer

Note 32

Canada (Attorney General) v. Ward, supra, footnote 2.

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Note 33

See Ramos Contreras, Manuel v. M.C.I. (F.C., no. IMM-4188-08), Heneghan, May 20, 2009; 2009 FC 525, where the Court noted that documentary evidence cannot, by itself, establish the subjective element of persecution. In Mailvakanam, Subhas v. M.C.I. (F.C., no. IMM-3155-11), Scott, December 6, 2011; 2011 FC 1422, the Court confirmed that the RPD has no obligation to conduct an assessment of objective risk after concluding that a claimant lacks subjective fear.

Return to note 33 referrer

Note 34

Geron, Fernando Bilog v. M.C.I. (F.C.T.D., no. IMM-4951-01), Blanchard, November 22, 2002; 2002 FCT 1204.

Return to note 34 referrer

Note 35

Nazir, Qaiser Mahmood v. M.C.I. (F.C., no. IMM-3857-04), Harrington, February 3, 2005; 2005 FC 168 at para. 4.

Return to note 35 referrer

Note 36

Yusuf, supra, footnote 30.

Return to note 36 referrer

Note 37

Canada(Minister of Citizenship and Immigration) v. Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008; 2008 FC 747.

Return to note 37 referrer

Note 38

In Sandoval Mares, Martha v. M.C.I. (F.C., no. IMM-2716-12), Gagné, March 25, 2013; 2013 FC 297, the Court noted that with regard to the children’s claim, the RPD could reasonably rely on the testimony of the principal applicant acting as the children’s designated representative in assessing the children’s subjective fear. No risks were raised as being faced by the minor applicants separate from those faced by their mother.

Return to note 38 referrer

Note 39

Owobowale, Lillian Naomi v. M.C.I. (F.C., no. IMM-2025-10), Zinn, November 16, 2010; 2010 FC 1150 was a case involving a mother and her three minor daughters whose claims were based on the minors’ fear of female genital mutilation at the hands of family members. The Board erred in unreasonably approaching the minors’ claims from the perspective of the mother. The life choices of the mother are not relevant in assessing the subjective fear of her children. The RPD also erred in not assessing the objective basis from the perspective of the minor applicants.

Return to note 39 referrer

Note 40

Shanmugarajah, Appiah v. M.E.I. (F.C.A., no. A-609-91), Stone, MacGuigan, Henry, June 22, 1992. This principle has been applied in many cases since. See for example Ramirez-Osorio, Alexander v. M.C.I. (F.C., no. IMM-7418-12), Shore, May 3, 2013; 2013 FC 461.

Return to note 40 referrer

Note 41

Parada, Felix Balmore v. M.C.I. (F.C.T.D., no. A-938-92), Cullen, March 6, 1995, at para. 16.

Return to note 41 referrer

Note 42

Assadi, Nasser Eddin v. M.C.I. (F.C.T.D., no. IMM-2683-96), Teitelbaum, March 25, 1997. at para. 14.

Return to note 42 referrer

Note 43

Parmar, Satnam Singh v. M.C.I. (F.C.T.D., no. IMM-838-97), Joyal, January 21, 1998; Chudinov, Nickolai v. M.C.I. (F.C.T.D., no. IMM-2419-97), Joyal, August 14, 1998; and Maximilok, Yuri v. M.C.I.  (F.C.T.D., no. IMM-1861-97), Joyal, August 14, 1998.

Return to note 43 referrer

Note 44

Dirie, Abdulle Milgo v. M.C.I. (F.C.T.D., no. IMM-5428-97), Cullen, October 6, 1998.

Return to note 44 referrer

Note 45

Hatami, Arezo v. M.C.I.  (F.C.T.D., no. IMM-2418-98), Lemieux, March 23, 2000, at para. 25.

Return to note 45 referrer

Note 46

Herrera, supra, footnote 28, at para. 23.

Return to note 46 referrer

Note 47

Ahoua, Wadjams Jean-Marie v. M.C.I. (F.C., no. IMM-1757-07), Blais, November 27, 2007; 2007 FC 1239, at para. 16.

Return to note 47 referrer

Note 48

Hidalgo Tranquino, Claudia Isabel v. M.C.I. (F.C., no. IMM-86-10), Mactavish, July 29, 2010; 2010 FC 793, at para. 8.

Return to note 48 referrer

Note 49

Gomez v. Canada (Minister of Citizenship and Immigration) (F.C., IMM-1412-10), Bédard, October 22, 2010, at para. 34.

Return to note 49 referrer

Note 50

Kunin, Aleksandr v. M.C.I. (F.C., no. IMM-5225-09), O’Keefe, November 4, 2010; 2010 FC 1091, at para. 20.

Return to note 50 referrer

Note 51

See M.C.I. v. Sellan, Theyaseelan (F.C.A. no. A-116-08), Desjardins, Nadon, Blais, December 2, 2008; 2008 FCA 381, where the Court, in answering a certified question, stated: “… where the Board makes a general finding that the claimant lacks credibility, that determination is sufficient to dispose of the claim unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim.”

Return to note 51 referrer

Note 52

Aslam, Muhammad v. M.C.I. (F.C., no. IMM-3264-05), Shore, February 16, 2006; 2006 FC 189, at para. 28.

Return to note 52 referrer

Note 53

It is not unusual for claimants to engage in more than one kind of conduct that may be seen to undermine their subjective fear. For example, in Rivera, Jesus Vargas v. M.C.I. (F.C., no. IMM-5826-02), Beaudry, November 5, 2003; 2003 FC 1292, the claimant went back to work for eight months for the same employer who had had him beaten; secondly, after he left Mexico for the U.S., he made no claim during the year he lived there; and finally, he returned to his country to take a flight to Canada.

Return to note 53 referrer

Note 54

Wong, Siu Ying v. M.E.I. (F.C.A., no. A-804-90), Heald, Marceau, Linden, April 8, 1992. Reported: Wong v. Canada (Minister of Employment and Immigration) (1992), 141 N.R. 236 (F.C.A.) at para. 5.

Return to note 54 referrer

Note 55

Castillejos, Jaoquin Torres v. M.C.I. (F.C.T.D., no. IMM-1950-94), Cullen, December 20, 1994, at para. 11 and Akram, Ejaz v. M.C.I. (F.C., no. IMM-3106-03), Pinard, July 2, 2004; 2004 FC 927, at para. 5.

Return to note 55 referrer

Note 56

In Bibby-Jacobs, Shannon Shenika v. M.C.I. (F.C., no. IMM-2508-12), Martineau, October 9, 2012; 2012 FC 1176, the Court cautions against the misuse of the concept of subjective fear in sexual harassment cases. The claimant was a young woman who had been victimized by a sexual predator, a prominent businessman and her employer. The RPD concluded that she did not have a subjective fear stating that “if the risk were of a level of severity that could be described as persecution, the claimant would have left her job.” The Court noted that this particular use of the concept of subjective fear by the RPD is hardly applicable in a sexual harassment case.

Return to note 56 referrer

Note 57

Hue, Marcel Simon Chang Tak v. M.E.I. (F.C.A., no. A-196-87), Marceau, Teitelbaum, Walsh, March 8, 1988; Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988 and Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugessen, Desjardins, Létourneau, March 17, 1993. Reported:  Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). In Andrade Ramos, Norberto v. M.C.I. (F.C. no., IMM-1867-10), Russell, January 10, 2011; 2011 FC 15 at para. 28, the Court reiterated this principle as follows: “[…] the RPD’s conclusion that the Applicants’ failure to claim asylum at the earliest opportunity (that is, in the U.S.) indicates their lack of subjective fear is contrary to Federal Court of Appeal jurisprudence, which says that a board may consider this factor in assessing subjective fear, provided it is not the only evidence upon which the board relies. See Hue […]”

Return to note 57 referrer

Note 58

Huerta., supra, footnote 57 at 227.

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Note 59

Cruz v. Canada (Minister of Employment and Immigration) (F.C.T.D., no. IMM-3848-93) Simpson, June 16, 1994, at para.10.

Return to note 59 referrer

Note 60

Castillejos, supra, at footnote 55, where the Court stated, at para. 11, that delay points to a lack of subjective fear and does not relate to the objective basis of the claim.

Return to note 60 referrer

Note 61

Velez, Liliana v. M.C.I. (F.C., no. IMM-5660-09), Crampton, September 15, 2010; 2010 FC 923, at para. 28. The converse of the same principle was expressed in Abawaji, Abdulwahid Haji Hassen v. M.C.I. (F.C., no. IMM-6276-05), Mosley, September 6, 2006; 2006 FC 1065; at para. 16:Delay in making a claim for refugee protection should not be fatal to the claim where it is supported by a reasonable explanation.”

Return to note 61 referrer

Note 62

For example, in Mubengaie Malaba, Gea v. M.C.I. (F.C., no. IMM-3814-12), Martineau, January 28, 2013; 2013 FC 84, at para. 25, the Court noted that “a distinction must be made between a behaviour that is inconsistent with a well-founded fear of persecution (which may be presumed from a lengthy delay in making a claim) and whether the applicant’s account of persecution is credible or not.”

Return to note 62 referrer

Note 63

Beltran, Luis Fernando Berrio v. M.C.I. (F.C.T.D., no. IMM-829-96), Dubé, October 29, 1996.

Return to note 63 referrer

Note 64

Martinez Requena, Ericka Marlene v. M.C.I. (F.C., no. IMM-4725-06), Dawson, September 27, 2007; 2007 FC 968.

Return to note 64 referrer

Note 65

In Salguero, Erbin Salomon Rosales v. M.C.I. (F.C., no. IMM-4402-04), Mactavish, May 18, 2005; 2005 FC 716, the Court distinguishes the claimants’ 16 year residence in the U.S. from the “short stays” en route to Canada referred to in para. 37 of Mendez, Alberto Luis Calderon v. (F.C., no. IMM-1837-04), Teitelbaum, January 27, 2005; 2005 FC 75.

Return to note 65 referrer

Note 66

Claimants often spend short periods of time in transit through countries where they do not seek protection. For example, in Packinathan, Lindan Lorance v. M.C.I. (F.C., no. IMM-6640-09), Snider, August 23, 2010; 2010 FC 834, the Board considered that the claimant’s failure to make a claim during a two-hour stop-over in Switzerland indicated a lack of subjective fear. The Board’s conclusion was held to be unreasonable, as the claimant was at all times in transit to Canada.

Return to note 66 referrer

Note 67

John, Shontel Dion v. M.C.I. (F.C., no. IMM-1683-10), Bédard, December 14, 2010; 2010 FC 1283 at para. 23.

Return to note 67 referrer

Note 68

El-Naem, Faisal v. M.C.I. (F.C.T.D., no. IMM-1723-96), Gibson, February 17, 1997. Reported: El-Naem v. Canada (Minister of Citizenship and Immigration) (1997), 37 Imm. L.R. (2d) 304 (F.C.T.D.).

Return to note 68 referrer

Note 69

Ribeiro, Wender Magno v. M.C.I. (F.C., no. IMM-8843-04), Dawson, October 11, 2005; 2005 FC 1363, at para. 11.

Return to note 69 referrer

Note 70

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.), at 162.

Return to note 70 referrer

Note 71

Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003; 2003 FC 1324, at para. 19.

Return to note 71 referrer

Note 72

Sabapathy, Thevi v. M.C.I.  (F.C.T.D., no. IMM-1507-96), Campbell, March 27, 1997.

Return to note 72 referrer

Note 73

Rahim, Ziany v. M.C.I. (F.C., no. IMM-2729-04), Shore, January 18, 2005, 2005 FC 18 at para. 11.

Return to note 73 referrer

Note 74

Zuniga, Alexis Ramon Garcia v. S.C.C. (F.C.T.D., no. IMM-118-94), Teitelbaum, July 4, 1994 at para. 49 – 50. See also Singh, Sebastian Swatandra v. M.C.I. (F.C.T.D., no. IMM-3840-97), Nadon, December 7, 1998 where the Court upheld the negative finding of the CRDD based on the view that the male claimant had not made a serious attempt to leave Fiji between 1987 and 1995, conduct which undermined his subjective fear of persecution.

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Note 75

As noted in Bibby-Jacobs, supra, footnote 56,it was not appropriate for the RPD to expect that “if the risk were of a level of severity that could be described as persecution, the claimant [a young woman subject to sexual harassment at the hands of her powerful employer] would have left her job.” In the same vein is the case of a claimant who was subject to domestic abuse but had returned to her husband after several earlier trips to Canada.  See Abdi Ahmed, Ilham v. M.C.I. (F.C., no. IMM-3178-12), O’Reilly, December 18, 2012; 2012 FC 1494, where the Court found that the RPD failed to take into account the claimant’s personal circumstances and apply the IRB’s Guidelines on Women Refugee Claimants Fearing Gender Related Persecution (Guideline 4) when evaluating her testimony regarding why she stayed with and returned to her husband.

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Note 76

Gebremichael, Addis v. M.C.I. (F.C., no. IMM-2670-05), Russell, May 1, 2006; 2006 FC 547, at para. 44.

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Note 77

Voyvodov, Bogdan Atanassov v. M.C.I. (F.C.T.D., no. IMM-5601-98), Lutfy, September 13, 1999, at para. 10.

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Note 78

Shah, Mahmood Ali v. M.C.I. (F.C., no. IMM-4425-02), Blanchard, September 30, 2003; 2003 FC 1121, at para. 23.

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Note 79

Ibrahimov, Fikrat v. M.C.I. (F.C., no. IMM-4258-02), Heneghan, October 10, 2003; 2003 FC 1185., at para. 19. This reasoning was more recently followed in Ramirez Rodas, Carlos v. M.C.I. (F.C., no. IMM-6560-13), Zinn, February 27, 2015; 2015 FC 250, at para. 31. A number of incidents over a period of a few months culminated in an event which convinced the claimants they had to leave.

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Note 80

Molano Fonnoll, German Guillermo v. M.C.I. (F.C., no. IMM-2626-11), Scott, December 12, 2011; 2011 FC 1461.

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Note 81

Menjivar, Carlos Othmar Navarrete v. M.C.I. (F.C., no. IMM-9660-04), Dawson, January 6, 2006; 2006 FC 11 at para. 33. For more recent cases supporting this principle see Rodrigues, Gustavo Adolfo v. M.C.I. (F.C., no. IMM-2214-11), Pinard, January 6, 2011; 2012 FC 4, and Ghotra, Balkar Singh v. M.C.I. (C.F., No. IMM-5472-15), Bell, October 19, 2016; 2016 CF 1161.

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Note 82

In Mendez, supra, footnote 65, at para. 34–38, Justice Teitelbaum held that the Board had erred in law when it wrote that the case law was clear that persons claiming to fear persecution were required to claim in the first Convention country in which they arrived. The Court also found that the Board has not fulfilled its requirement to carefully consider the claimant's testimony.

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Note 83

Salomon, Jonathan Castro v. M.C.I. (F.C., no. IMM-1120-17), Locke, October 6, 2017; 2017 FC 888

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Note 84

Pulido Ruiz, Cristian Danilo v. M.C.I. (F.C., no. IMM-2819-11), Scott, February 24, 2012; 2012 FC 258.  See also Manage, Pierrette v. M.C.I. (F.C., no. IMM-4966-13), Kane, April 17, 2014; 2014 FC 374, where the RPD had found that the applicants’ failure to seek asylum in Kenya and Germany, while in transit to Canada, demonstrated a lack of subjective fear. The Court held that this finding was not reasonable based on the applicants’ circumstances and youth. The RPD unreasonably expected the applicants to appreciate that their failure to seek asylum in the very first country they landed would jeopardize their claim and undermine their subjective fear of persecution.

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Note 85

In Ilie, Lucian Ioan v. M.C.I. (F.C.T.D., no. IMM-462-94), MacKay, November 22, 1994 the Court stated that the CRDD was entitled to take notice of the status of countries that are signatories to the Convention and may also assume that such countries will meet their obligation to implement the Convention within their own territory, unless evidence to the contrary is adduced.  But in Tung, Zhang Shu v. M.E.I. (F.C.A., no. A-220-90), Heald, Stone, Linden, March 21, 1991, where the claimant visited four countries en route to Canada, the Court pointed to the lack of evidence that any of the countries in question had ratified the Convention or Protocol. Although the Board was authorized to take notice of any facts that could be judicially noticed, the Board was wrong to “speculate” that refugee protection was available in those countries.

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Note 86

Memarpour, Mahdi v. M.C.I. (F.C.T.D., no. IMM-3113-94), Simpson, May 25, 1995, at para. 23-24.

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Note 87

Mendez, supra, footnote 65, at para. 37.  In Nel, Charl Willem v. M.C.I. (F.C., no. IMM-4601-13), O’Keefe, September 4, 2014; 2014 FC 842, the claimants spent approximately 7 hours in an airport in the UK while waiting for a flight to Canada. The Court found that the RPD erred in finding a lack of subjective fear based on their short layover. The Court noted that it is unsurprising that someone who actually fears persecution would want to go to a country where their claim has the best chance of success, since the price of failure is a return to the persecution they fear.

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Note 88

Packinathan, supra, footnote 66, at para. 7.

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Note 89

In Alekozai, Rafi v. M.C.I. (F.C., no. IMM-8260-13), Rennie, February 6, 2015; 2015 FC 158, the Court noted that reunification with family is a valid reason for not claiming refugee protection at the first opportunity. However, in Gebetas, Ergun v. M.C.I. (F.C., no. IMM-11313-12), Shore, December 10, 2013; 2013 FC 1241, the Court held that the mere fact that an applicant has one relative in Canada is not a sufficient basis to overcome the fact that he or she did not claim refugee status in the United States as quickly as possible. And in Ndambi, Guy v. M.C.I. (F.C., no. IMM-12682-12), Roy, January 31, 2014; 2014 FC 117, the Court held that there was ample evidence for the RPD to conclude that the applicant had no subjective fear.  The applicant chose to leave more than two weeks after his visas for the United States and Belgium were issued, and he did not claim asylum when he arrived in the United States. His choice to come to Canada because his nephew is here was more of a conscious choice made for immigration purposes than a decision to seek refuge wherever possible.

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Note 90

Perez, Franklin Antonio v. M.C. I. (F.C., no. IMM-4450-09), Boivin, March 30, 2010; 2010 FC 345 at para. 19.

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Note 91

Bello, Salihou v. M.C.I. (F.C.T.D., no. IMM-1771-96), Pinard, April 11, 1997.

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Note 92

Madoui, Nidhal Abderrah v. M.C.I. (F.C.T.D., no. IMM-660-96), Denault, October 25, 1996.

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Note 93

In Milian Pelaez, Rogelio v. M.C.I. (F.C., no. IMM-3611-11), de Montigny, March 2, 2012; 2012 FC 285, the Court held (at para. 14) that the RPD had wrongly held against the claimant his failure to claim asylum in the US without considering his explanation that his intention at the time was simply to temporarily flee Guatemala in order to be forgotten or his explanation that, unlike Canada, the United States refuses claims based on risk related to criminality “as was the case in Canada before section 97 was introduced in the Act”.

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Note 94

Mekideche, Anouar v. M.C.I. (F.C.T.D., no. IMM-2269-96), Wetston, December 9, 1996.

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Note 95

Ilyas, Muhammad v. M.C.I. (F.C., no. IMM-5636-03), Russell, September 16, 2004; 2004 FC 1270.

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Note 96

El-Naem, supra, footnote 68.

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Note 97

Liblizadeh, Hassan v. M.C.I. (F.C.T.D., no. IMM-5062-97), MacKay, July 8, 1998.

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Note 98

Yoganathan, Kandasamy v. M.C.I. (F.C.T.D., no. IMM-3588-97), Gibson, April 20, 1998, at para. 8.

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Note 99

Hue, supra, footnote 57.

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Note 100

Shahpari, Khadijeh v. M.C.I. (F.C.T.D., no. IMM-2327-97), Rothstein, April 3, 1998, at para.14.

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Note 101

Geron, supra, footnote 34.

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Note 102

Bains, Gurmukh Singh v. M.C.I.  (F.C.T.D., no. IMM-3698-98), Blais, April 21, 1999.

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Note 103

Singh, Pritam v. M.C.I. (F.C., no. IMM-2513-06), Shore, January 25, 2007; 2007 FC 62, at para. 24.

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Note 104

Gabeyehu, Bruck v. M.C.I. (F.C.T.D., no. IMM-863-95), Reed, November 8, 1995, at para. 7.

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Note 105

See Chapter 5, Section 5.6 and Chapter 7. Section 7.3.

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Note 106

Tang, Xiaoming v. M.C.I. (F.C.T.D., no. IMM-3650-99), Reed, June 21, 2000, at para. 6. “His claim is a sur place claim and, therefore, the date as of which he became aware that he would allegedly face persecution on return to China is the relevant date, not the date on which he arrived in Canada.”

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Note 107

Gyawali, Nirmal v. M.C.I. (F.C., no. IMM-926-03), Tremblay-Lamer, September 24, 2003; 2003 FC 1122.

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Note 108

Hue, supra, footnote 57.

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Note 109

Ahmad, Mahmood v. M.C.I. (F.C.T.D., no. IMM-1012-01), Tremblay-Lamer, February 14, 2002; 2002 FCT 171.

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Note 110

Niyonkuru, Joseph v. M.C.I. (F.C., no. IMM-4230-04), De Montigny, February 4, 2005, 2005 FC 174; Correira, Osvaldo De Matos v. M.C.I. (F.C., no. IMM-8077-04), O’Keefe, August 3, 2005, 2005 FC 1060 and Singh, supra, footnote 103 .

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Note 111

Nijjer, Yadhwinder Singh v. M.C.I. (F.C., no. IMM-340-09), de Montigny, December 9, 2009; 2009 FC 1259, at para. 24. In Peti, Qamile, v. M.C.I. (F.C., no. IMM-1764-11), Scott, January 19, 2012; 2012 FC 82, the claimant, who was found to be not credible by the RPD, had a valid visa and waited six months before filing her claim. The Court found the Minister’s contention that “possession of a visa does not rebut the presumption that a true refugee would claim protection at the first opportunity” to be a sound argument.

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Note 112

Williams, Debby v. S.S.C. (F.C.T.D., no. IMM-4244-94), Reed, June 30, 1995. See also A.G.I. v. M.C.I. (F.C.T.D., no. IMM-5771-01), Kelen, December 11, 2002; 2002 FCT 1287, where the claimant made the refugee claim only after her visitor status in Canada had lapsed and immigration authorities advised her that she could base a refugee claim on her fear of persecution by her husband.

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Note 113

Ashraf, Shahenaz v. M.C.I. (F.C., no. IMM-5375-08), O’Reilly, April 19, 2010; 2010 FC 425.

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Note 114

Lameen, Ibrahim v. S.S.C. (F.C.T.D., no. A-1626-92), Cullen, June 7, 1994.

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Note 115

Singh, Nirmal v. M.C.I. (F.C., no. IMM-7334-05), Teitelbaum, June 13, 2006, 2006 FC 743.  In Ismayilov, Anar v. M.C.I. (F.C., no. IMM-7263-14), Mactavish, August 26, 2015; 2015 FC 1013, the claimant had explained to the RPD that he had delayed claiming because his lawyer had advised him to wait until his wife and child arrived in Canada so that they could make their claims as a family. The Court noted that the RPD had an obligation to consider this evidence before it could conclude that the delay in claiming indicated a lack of subjective fear.

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Note 116

The word re-availment refers to voluntarily returning to the country of origin and availing oneself of the protection of that country (see IRPA, section 108(1)(a)).

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Note 117

Kabengele v. M.C.I. (F.C. no., IMM-1422-99), Rouleau, November 16, 2000, at para. 41.

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Note 118

Martinez Requena, supra, footnote 64, at para. 7. In Milian Pelaez, Rogelio v. M.C.I. (F.C., no. IMM-3611-11), de Montigny, March 2, 2012; 2012 FC 285, the Court noted that the RPD held against the applicant his return to Guatemala, the place where the people he feared could be found, without considering that he had apparently relocated 100 km away from the place where he had had problems and had changed his profession. In Ascencio Gutierrez, Arnoldo Maximilano v. M.C.I. (F.C., no. IMM-4903-13), O'Keefe, March 3, 2015; 2015 FC 266, the Court disagreed with the RPD’s finding that two one-month returns to Mexico City (not to the claimant’s home state) to renew his student visa amounted to re-availment. In Yuan, Xin v. M.C.I. (F.C., no. IMM-5365-14), Boswell, July 28, 2015; 2015 FC 923, the RPD allowed the Minister’s application for cessation because the refugee had returned to his country of origin for one month. The Court found the decision to be unreasonable because the refugee had returned to arrange his mother’s funeral and during his stay had remained in hiding and had avoided the actual funeral out of fear that his persecutors (the Chinese PSB) would find him there.

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Note 119

Kanji, Mumtaz Badurali v. M.C.I. (F.C.T.D., no. IMM-2451-96), Campbell, April 4, 1997.

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Note 120

Caballero, Fausto Ramon Reyes v. M.E.I. (F.C.A., no. A-266-91), Marceau (dissenting), Desjardins, Létourneau, May 13, 1993. In Duarte, Augustina Castelanos v. M.C.I. (F.C.T.D., no. IMM-6616-02), Kelen, August 21, 2003; 2003 FCT 988  the Board and the Court took a similar view of the claimant’s return to Cuba to transfer ownership of her house to prevent the government from confiscating it.

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Note 121

Araya, Carolina Isabel Valenzuela v. M.C.I. (F.C.T.D., no. IMM-3948-97), Gibson, September 4, 1998.

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Note 122

Prapaharan, Sittampalam v. M.C.I, (F.C. no. IMM-3667-00), McKeown, March 30, 2001; 2001 FCT 272 at para. 17.

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Note 123

In Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.), at 304, the Court pointed out that the Immigration Appeal Board had ignored the fact that the claimant was able to obtain his passport (and exit papers) through his brother's contacts with the government.

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Note 124

Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592 (C.A.), at 611. Though the Court acknowledged that applying for immigrant visas might possibly be relevant to deciding whether a person really had a fear of persecution, it remarked that a desire to emigrate and a fear of persecution could hardly be considered mutually exclusive.

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Note 125

Vaitialingam v. M.C.I. (F.C., no. IMM-9445-03), O’Keefe, October 20, 2004, 2004 FCT 1459, at para. 27.

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Note 126

Chandrakumar v. M.E.I. (F.C.T.D., no. A-1649-92), Pinard, May 16, 1997, at para. 6.

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Note 127

Kurtkapan, Osman v. M.C.I. (F.C.T.D., no. IMM-5290-01), Heneghan, October 25, 2002; 2002 FCT 1114, at para. 31.

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Note 128

See the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, September 1979, paragraphs 94-96.  Paragraph 94 provides the following definition: “A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee “sur place”.” See also Chapter 7, section 7.3., sur place claims.

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Note 129

Herrera, Juan Blas Perez de Corcho v. M.E.I. (F.C.T.D., no. A-615-92), Noël, October 19, 1993, at para. 10. The Court upheld the Board’s conclusion that the claimant had no subjective fear and was not a bona fide refugee because the basis for his alleged fear, namely speaking out against the Cuban regime after claiming refugee status in Canada, was a self-serving act intended to facilitate his refugee claim.

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Note 130

In Ngongo, Ngongo v M.C.I. (F.C.T.D., no. IMM-6717-98), Tremblay-Lamer, October 25, 1999, at para. 23, from Justice Tremblay-Lamer’s remarks concerning sur place claims, it is clear that the objective basis of the risk must be assessed even where a claimant’s behaviour may have been opportunistic.

[…] The only relevant question is whether activities abroad might give rise to a negative reaction on the part of the authorities and thus a reasonable chance of persecution in the event of return.

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Note 131

Asfaw, Napoleon v. M.C.I.  (F.C.T.D., no. IMM-5552-99), Hugessen, July 18, 2000, at para. 4.

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Note 132

Zewedu, Haimanot v. M.C.I. (F.C.T.D., no. IMM-5564-99), Hugessen, July 18, 2000, at para. 5.

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Note 133

Ejtehadian, Mostafa v. M.C.I. (F.C., no. IMM-2930-06), Blanchard, February 12, 2007; 2007 FC 158, at para. 11.

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