Chapter 5 - Well-founded fear

5.1. Generally

Section 96 of the Immigration and Refugee Protection Act (the IRPA) provides that a Convention refugee is a person who is outside of their country of nationality or country of former habitual residence and is unable or unwilling to avail themself of the protection of that country because of a “well-founded fear of persecution” for reason of race, religion, nationality, membership in a particular social group or political opinion.^{Note 1}

In Ward,the Supreme Court of Canada held that the test for establishing a fear of persecution is bi-partite in nature. Refugee claimants must establish both that they have a subjective fear of persecution if they return to their home country and that their fear is well-founded in an objective sense.^{Note 2} The SCC adopted the test that had been articulated and applied earlier by Heald J.A. in Rajudeen:

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 3}

Thus, 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 4}

The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, which was reissued in 2019, points to the phrase “well-founded fear of persecution” as the key phrase in the definition of a Convention refugee.^{Note 5} To the concept of fear – a state of mind and a subjective condition – is added the qualification of “well-founded”. This implies that it is not only the frame of mind of the person concerned that determines their refugee status, but that this frame of mind must be supported by an objective situation. The term “well-founded fear” therefore contains both a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration.^{Note 6}

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 7}

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 8}

Claimants do not have to establish that they have been persecuted in the past.^{Note 9} Even if they can do so, “past persecution is insufficient of itself to establish a fear of future persecution”.^{Note 10} 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 11} In Natynczy,^{Note 12} 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 13}

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 14}

5.2. Subjective fear

The subjective component relates to the existence of a fear of persecution in the mind of the claimant. In order to establish a subjective fear of persecution, claimants must show that they genuinely fear persecution upon return.

5.2.1. Subjective fear is an essential element

A subjective fear and an objective basis for that fear are crucial elements in the definition of a Convention refugee. In 1999 in Kamana,^{Note 15} Madam Justice Tremblay-Lamer held that the Board's finding that the claimant had not credibly established the subjective element was reasonable and that was fatal to the claim:

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 16} a case which was followed by a number of judges in the Federal Court (the “Court”)^{Note 17}.

A few years later, in 2002, the applicant in Maqdassy challenged Justice Tremblay-Lamer’s holdings in Kamana and Tabet-Zatla.^{Note 18} The applicant relied on Yusuf, ^{Note 19} an earlier decision by the Federal Court of Appeal (the “Court of Appeal”) that 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 Maqdassy^{Note 20} 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 21} in which the Supreme Court made it clear that both components of the test were required.^{Note 22}

In Kanvathipillai, Justice Pelletier had qualms with the approach in Yusuf, stating “there is a rationale for insisting upon a subjective sensation of fear” and that “refugee systems exists to protect those who are afraid of persecution and for whom there is no state protection….Individuals leave troubled regions for many reasons but only those who do so out of a well-founded fear of persecution can claim international protection.”^{Note 23} In Geron,^{Note 24} 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 Nazir^{Note 25} 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.”

5.2.2. Establishing a subjective fear

Claimants usually seek to establish that they have a subjective fear of persecution by testifying or presenting other credible evidence that they genuinely fear persecution. Normally, where the claimant is found to be a credible witness and their testimony is consistent, the claimant’s evidence will be sufficient to meet the subjective aspect of the test.^{Note 26}

In some situations, a claimant may be incapable of experiencing or articulating a subjective fear. In Yusuf,^{Note 27} the Court mentioned that children or persons suffering from mental disability may be incapable of experiencing fear. In Patel,^{Note 28} the Court noted that either age or disability may cause a claimant to be incapable of articulating their subjective fear in a rational manner. If a claimant is not competent and the evidence establishes an objective basis for fear of persecution, the parent or other person acting as the claimant’s designated representative may establish a subjective fear.^{Note 29} However, the claim must be evaluated from the perspective of the minor.^{Note 30} In some cases, it may be possible for the tribunal to infer a subjective fear from the evidence. As the Court pointed 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.

However, 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 Court and Court of Appeal have provided a number of observations on this subject, including the following:

• MacGuigan, J. in Shanmugarajah^{Note 31}: “(…) 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 (…)”. (underlining added)
• Cullen, J. in Parada^{Note 32} held that if a claimant testifies that they fear for their life and there is evidence to reasonably support those fears, it is improper for the Board to reject that testimony out of hand without making a negative finding of credibility.
• Teitelbaum, J. in Assadi^{Note 33} 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 34} stated that the subjective component of the well-founded fear test depended solely on the claimant’s credibility.
• Cullen, J. in Dirie^{Note 35}: “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. (underlining added)
• Lemieux, J. in Hatami^{Note 36} 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 Herrera^{Note 37} 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 Ahoua^{Note 38}:  “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 Tranquino^{Note 39}: “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 40} 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 Kunin^{Note 41}:“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 impugn only 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 42}

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 behaviour of the claimant that it considers to be inconsistent with that allegation.

The Court has confirmed that there are certain ways that persons fearful of serious harm can normally be expected to act , including seeking refugee protection at the earliest reasonable opportunity. Asthe Court stated in Aslam,^{Note 43}

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, passing through other countries without asking for protection , failing to make a claim for protection immediately upon arrival in Canada and voluntarily returning to the country of persecution are all behaviours that have been found to be indicative of a lack of subjective fear. None of these behaviors mandates the rejection of a claim to Convention refugee status without further examination. However, a decision-maker 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 44} this evidence is considered to support the existence of subjective fear. Conversely, adverse inferences may be drawn when claimants fail to vary their routine^{Note 45} or to take other precautions against falling victim to the persecution they claim to fear.^{Note 46}

5.3. Delay in seeking protection

When claimants do not take steps to seek protection promptly, the Board may conclude that their behaviour shows a lack of subjective fear.

The 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, Hue, Heer, and Huerta, acknowledged that delay is, nonetheless, a relevant, and potentially important consideration.^{Note 47} 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 48}

Delay, in the absence of a satisfactory explanation, can impugn a claimant's credibility and suggest that they do not have a genuine subjective fear. As Madam Justice Simpson explained in Cruz,^{Note 49} 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.

In Renee,^{Note 50} the Court held that it is “well-settled that delay in claiming protection ‘can be inconsistent with subjective fear because generally one expects a genuinely fearful claimant to seek protection at the first opportunity'…Absent a satisfactory explanation as to why protection was not sought at the first opportunity, it is open to the decision-maker to conclude that, despite what the claimant now says, he/she does not actually fear persecution”.

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 unexplained delay is accepted as evidence that establishes, on a balance of probabilities, that the claimant lacks subjective fear.^{Note 51} In Velez, 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 52}

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.

In Zhuang,^{Note 53} the Court held that “delay in claiming protection may be a valid factor to consider as the basis for concluding that an applicant does not possess the requisite subjective fear, however, such a delay not does not automatically result in such a finding. Rather the circumstances and potential explanations must be considered.”

It is essential that Board members express clearly their findings on the credibility of a claimant's explanation for behaving in a particular manner.^{Note 54} When the Board does not accept an explanation as valid, it is obliged to give reasons.^{Note 55} In Martinez Requena,^{Note 56} 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 consideration^{Note 57} but it is not, in and of itself, determinative. While short delays may tend to be more easily explained,^{Note 58} 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. In John,^{Note 59} the Board 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. (underlining added)

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 60} 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 Ribeiro,^{Note 61} 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 and 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.

The Court in Chen^{Note 62} held that when assessing the significance of delay, the decision-maker must consider whether the claimant acted consistently with the fears that they are alleging rather than the fears that the decision-maker may believe that the claimant should have had:

“[what] is in issue when assessing the significance of delay is what a claimant says he or she actually feared and whether he or she acted consistently with those fears. This is a subjective inquiry, not an objective one. In the present case, it is appropriate to ask whether the claimant acted consistently with any fears that he claimed to have. It is of no assistance to ask whether he acted consistently with fears he never claimed to have but which, in the view of the RAD, he should have had.”

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 63} the Court held, in obiter, that the Board 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 64} 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 Sabapathy,^{Note 65} in which the claimant had voluntarily given up protection in the U.K., 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 the claimant 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. Types of delay

As indicated above, persons are generally expected to seek refugee protection at the first reasonable opportunity.^{Note 68} Consequently, staying any longer than necessary in a country where a claimant fears persecution, passing through other countries without asking for protection or failing to make a claim for protection immediately upon arrival in Canada are all behaviors that have been found to be indicative of a lack of subjective fear.^{Note 69}

5.5. Return to country of persecution - reavailment

A claimant's return to the country where they allegedly face persecution can call their subjective fear into question. The term “re-availment” is often used when referring to a return to a country of persecution.^{Note 119}

The issue of reavailment can arise in the context of the Board's assessment of a claimant's subjective fear in the determination of a refugee claim . It can also arise in the context of an application by the Minister under section 108 of the IRPA to cease a person's refugee protection.^{Note 120}

The Court has held in numerous cases that it is reasonable for the Board to take reavailment into account when assessing a claimant's subjective fear.

Return to the country of nationality is the kind of re-availment that is most often discussed in the case law. In Kabengele,^{Note 121} Mr. Justice Rouleau, citing several cases, stated that it was reasonable for the Board to conclude that the claimant's return to the country where he allegedly faced persecution made it unlikely that he had a subjective fear:

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)

In Ortiz Garcia,^{Note 122} the Court held that reavailment typically suggests a lack of a subjective fear of persecution:

[8] Reavailment typically suggests an absence of risk or a lack of subjective fear of persecution. Absent compelling reasons, people do not abandon safe havens to returns to places where their personal safety is in jeopardy.

Similarly, in Kostrzewa,^{Note 123} the Court stated:

[26] …As has been repeatedly held by this Court, a refugee claimant's re-availment to the jurisdiction in which he or she fears persecution or a type of harm contemplated by section 97 of the IRPA seriously undermines allegations of subjective fear, particularly in the absence of a compelling reason for such re-availment (Hernandez v Canada (Minister of Citizenship and Immigration), 2012 FC 197 at para 21; Ortiz Garcia v Canada (Minister of Citizenship and Immigration), 2011 FC 1346 at para 8; Mughal v Canada (Minister of Citizenship and Immigration), 2006 FC 1557 at paras 33-35; Natynczyk v Canada (Minister of Citizenship and Immigration), 2004 FC 914 at para 69).

Board must consider the claimant's explanation for return

Although a person's return to their country of nationality may undermine an allegation of subjective fear, 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 . The Board must also consider any explanation offered by the claimant for their return to their home county. The Court has pointed to evidence of a claimant's belief that country conditions have changed or evidence of a claimant's temporary visit while they remained in hiding as examples of evidence that would be inconsistent with a finding of a lack of subjective fear.^{Note 124}

In Sanchez Hernandez,^{Note 125} the Court agreed that return or reavailment to the state of origin is perhaps the clearest indication that a refugee claimant no longer views themself as being as risk. It is a clear indication that the claimant is willing to entrust their welfare to that state. However, there may be exceptions to those general rules and that requires that the Board consider the explanation offered by a claimant who has returned to the state of origin. The Board cannot simply state that there is no subjective fear because of the fact of reavailment.

The Board's credibility assessment of the reasons that claimants give for returning to their country is important. In Kanji,^{Note 126} the Board found that the claimant's return to India had negated her subjective fear. However, the Court held that the Board erred in making this finding. The claimant had testified that she did not reavail herself of India's protection nor did she lose her subjective fear . The Board did not make an express finding that it disbelieved the claimant's testimony. In the absence of a credibility finding, the Board erred by finding that the claimant had no subjective fear on the basis of the circumstantial evidence of her returns to India.

In Caballero,^{Note 127} 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 Board that his behaviour was inconsistent with a well-founded fear of persecution.

In Best,^{Note 128} the Court found that the claimant's repeated reavailments to Barbados provided a reasonable basis for the Board to conclude that the claimant lacked a subjective fear of persecution. While the claimant had offered an explanation, it was within the Board's discretion to consider and reject the claimant's explanation and it was clear from the transcript that the Board had done so.

In Khakimov,^{Note 129} the Court held that it was open to the Board to conclude that reavailment was determinative given the claimant's record of continuous uncompelled reavailments.

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 130} 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 reavailment 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.

A claimant's fear of persecution may change over time. Accordingly, the fact that a claimant may have reavailed in the past does not necessarily mean that the claimant does not presently have a subjective fear. In Prapaharan,^{Note 131} 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.” However, in Gopalapillai,^{Note 132} the claimant had returned to Sri Lanka and, after his return, had been arrested, questioned and beaten more than once. The Court held that “to the extent that the RPD considered that re-availment in 2008 was a bar to the claim, without considering subsequent events…this would be unreasonable.”

In Ali,^{Note 133} the claimants claimed that they were at risk in the Sudan. However, the principal claimant had made several trips back to the Sudan and the Board concluded that he did not have a subjective fear. The Court held that the Board erred because it had not considered the claimant's evidence that his fear of persecution had grown over time as a result of increased interest and brutal actions of the Sudanese authorities and that he had not returned to the Sudan again after being detained and beaten on his last trip.

The Court has held that it is an error to find a lack of subjective fear when the claimant was removed to their country, and thus did not return voluntarily. In Kurtkapan,^{Note 134} 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.

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 document^{Note 135}, and leaving or emigrating through lawful channels.^{Note 136} 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 137} 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 138} the Court held that the Board erred in drawing the inference that the applicant reavailed 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 reavail himself of Sri Lanka's protection.

5.6. Objective basis for the claimant’s fear

In addition to showing that they have a genuine subjective fear of persecution, claimants must show that their fear is well-founded in an objective sense. 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 139}

When evaluating conditions in the claimant’s country of origin, the Board is required to consider evidence of the conditions as they exist at the time of the hearing.^{Note 140}

In assessing whether a claimant has shown that their fear is well-founded, the Board must identify and apply both the proper standard of proof and the correct legal test. The standard of proof refers to the standard that the decision-maker should 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.

5.6.1. Standard of proof for factual findings

The standard of proof in a civil matter is always proof on a balance of probabilities unless the words of a stature or the context requires otherwise. The common starting point for a discussion of the standard of proof and the legal test for a refugee claim is the Court of Appeal’s in Adjei. In that case, the Court of Appeal held that a claimant must establish their case on a balance of probabilities.^{Note 141} In Alam, the Court cited Adjei and held that it is obvious that claimants must prove the facts on which they rely, and the civil standard is the appropriate means by which ​to measure the evidence supporting their factual contentions.^{Note 142} In Nageem, the Court again reiterated that “[the] standard of proof, or the evidentiary burden as it is sometimes referred to, in assessing the risk described in paragraphs 96…is proof on a balance of probabilities. This is the standard of proof to be applied by the Board in assessing the evidence before it.”^{Note 143}

The Court has held that certain phrasing in Board reasons, such as “we are not convinced”^{Note 144} or “the claimant did not persuade the panel”^{Note 145} implied overly exacting standards of proof.

5.6.2. Legal test to establish a risk of persecution

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 146} The evidence must show only that there are "good grounds" for fearing persecution.^{Note 147} 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 148}

In Li,^{Note 149} 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 persecution^{Note 150} and asking claimants to establish that they "would" be persecuted in the future, has been held to be the wrong test.^{Note 151} However, in one case, the Court held that the Board 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 Board was speaking of the reasonable likelihood, not the absolute certainty.^{Note 152}

The test for the well-foundedness of a fear of persecution was further clarified in Ponniah,^{Note 153} 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 154} theCourt referred to the test set out in Adjei and Ponniah and rejected the argument that when the Board 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 Rajagopal^{Note 155} that the Officer misstated the test when he concluded that the claimant "would not be at particular risk".

In Sivaraththinam,^{Note 156} 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 Board 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 157}

5.6.3. Relationship between the standard of proof and the legal test

Practically speaking, a decision-maker must consider the evidence adduced by a claimant on a balance of probabilities for the purpose of making factual findings. The decision-maker must then assess whether those facts place the claimant at risk of persecution or, in other words, whether they establish that there is a “reasonable chance” of persecution.^{Note 158}

The Court of Appeal has cautioned that the standard of proof must not be confused with the legal test to be met.^{Note 159} However, it is not always immediately clear whether the decision-maker is making a finding of fact or assessing the risk of persecution. For example, in Halder, the RPD found there was no serious possibility that the claimant would be prosecuted in a proposed internal flight alternative because, in part, it was more likely than not that the persecutors would not find the claimant in the IFA. The RAD considered the RPD’s decision and found that the inability of the persecutors to find the claimant in the IFA was a factual finding and that the RPD did not use the wrong test given that this finding of fact led to its ultimate finding that there is not a serious possibility of persecution in the IFA. However, the Court held that it was not correct for the RPD to state the claimant must prove that his past persecutors would find him in the IFA in the future on a balance of probabilities. Requiring proof of that outcome on a balance of probabilities amounts to requiring the claimant to prove a future risk of persecution on a balance of probabilities.^{Note 160} In Sivagnanam,^{Note 161} the Court considered whether the RPD had applied the wrong test when it found the claimant had an IFA. The RPD had held that the claimant’s profile is not one that will attract negative attention by the authorities in the IFA and therefore found that the claimant will not experience any significant difficulties or face persecution in the IFA. The Court concluded that the RPD’s reasons, when read in context and together with the record, did not elevate the test. The RPD’s reasons simply said, as a matter of fact, that the claimant’s profile will not attract attention and that the IFA is an option. It could not be inferred from the RPD’s reasons that the claimant must prove persecution.

In contrast, in Gomez Dominguez,^{Note 1632} the Court held that the RAD had erred in its application of the balance of probabilities standard in the course of finding that the claimant had an IFA in Colombia. The Court stated that “[a] conclusion as to the capacity or motivation of agents of persecution, while it may depend on certain facts, is essentially a risk assessment”. The Court went on to say “if the analysis is segmented and these elements must be proven on a balance of probabilities, there is little left to be assessed according to the standard of serious risk. Rather than considering whether the motivation and capacity of the agents of persecution had been proven on a balance of probabilities, the RAD should have conducted an overall assessment of the risk to which [the claimant] would be exposed on her return to Colombia and assessed whether that risk would be serious.”

5.7. Sur place claims

A Convention refugee is someone who has a well-founded fear of returning to their country of nationality or former habitual residence. A claimant’s fear usually arises from something that happened in that country before the claimant came to Canada. However, a sur place claim is one in which a claimant alleges that they have a well-founded fear of persecution because of events that occurred after they left. A claimant may claim to be at risk because of their actions in Canada, as a consequence of events which have occurred in their country of origin since departure,^{Note 163} or because of a significant intensification of pre-existing factors since departure.^{Note 164}

The failure to assess the sur place claim can be a reviewable error.^{Note 165} It is an error to totally discount the evidence relating to the sur place claim without explaining why.^{Note 166}

Evidence of political activities in Canada should be considered by the panel whether or not the claimant specifically raises a sur place claim.^{Note 167} However, where the decision is under reserve, the onus is on the claimant to request a reconvening of the hearing (before a final decision on the claim has been rendered) in order to consider the impact that any newly alleged sur place basis to the claim might have.^{Note 168}

5.7.1. No good faith requirement for a sur place claim

The Court has held that it is proper for the Board to look at the fact that the claimant took allegedly self-endangering actions after making their claim, and to inquire into the claimant's motivation.^{Note 169}

In Asfaw,^{Note 170} 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 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 Zeweda,^{Note 171} a similar case that he decided on the same date, Mr. Justice Hugessen 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.

More recently, the Court has held that there is no “good faith” requirement in making a sur place claim and that a decision-maker should not reject a sur place claim solely on the basis that the claimant was acting for an improper motive without examining the potential risk to the claimant upon return to their country of origin.

In Ngongo,^{Note 172} the Court cited with approval the following passage from Professor Hathaway's The Law of Refugee Status:

It does not follow, however, that all persons whose activities abroad are not genuinely demonstrative of oppositional political opinion are outside the refugee definition. Even when it is evident that the voluntary statement or action was fraudulent in that it was prompted primarily by an intention to secure asylum, the consequential imputation to the claimant of a negative political opinion by authorities in her home state may nonetheless bring her within the scope of the Convention definition. Since refugee law is fundamentally concerned with the provision of protection against unconscionable state action, an assessment should be made of any potential harm to be faced upon return because of the fact of the non-genuine political activity engaged in while abroad.^{Note 173}

In Ghasemian,^{Note 174} the Court held that, once the Board accepted that the claimant had converted to Christianity while in Canada and now risked severe punishment in Iran as an apostate, it had to consider whether the claimant would be viewed as an apostate regardless of the motive for her conversion. While it was open to the Board to reject her sur place claim on the basis of a lack of subjective fear, the Board misconstrued her evidence regarding her alleged lack of fear of reprisals and applied the wrong test by rejecting her claim on the basis that it was not made in good faith, i.e., she did not convert for a purely religious motive. The Court followed the reasoning of the English Court of Appeal in Danian,^{Note 175} that opportunistic claimants are still protected under the Convention if they can establish a genuine and well-founded fear of persecution for a Convention ground.

In Ejtehadian,^{Note 176} the Board's negative decision was based on its finding that the claimant's religious conversion was not genuine and was “nothing more than an alternative means to remain in Canada and claim refugee status.” The Court held that the Board erred in rejecting the claim because of the claimant's motivation for his conversion. Regardless of the claimant's motivation, it was still necessary for the Board to consider the credible evidence of the claimant's activities in Canada and assess whether those activities might place him at risk if he returned to his home country.

In Ye,^{Note 177} the Court cited its earlier decision in Ghasemian and agreed that the Board had erred by imposing a “good faith” requirement on a sur place claim.

The Board may still be able to find, in appropriate cases, that the claimant's activities were not likely to come to the attention of anyone in their country,^{Note 178} or that the claimant would not likely engage in such activities on return to their country.^{Note 179}

5.7.2. Claimant’s activities abroad

A sur place claim may be based on the claimant's actions in Canada or elsewhere after leaving their home country.^{Note 180}Sur place claims are often based on the claimant's political or religious activities in Canada.

According to paragraph 96 of the UNHCR Handbook, the key issues in cases based on the claimant's activities since leaving their home country are “whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities.” Even though a claimant's actions subsequent to departure may have come to the attention of the authorities there, it may nevertheless be that, in the circumstances, those actions do not give rise to a well-founded fear of persecution.^{Note 181}

In Win,^{Note 182} the Court held that the standard to be used in assessing evidence relating to a surplace claim is likelihood, or balance of probabilities, that is, whether the claimant's activities were likely to come to the attention of the authorities of their country. 

In Gabremedhin,^{Note 183} the Court considered the application of the test for a sur place claim:

[28] The legal threshold for a sur place claim should not be confused with the standard of proof. In order to show a well-founded fear of persecution under section 96 of the Act, an applicant must establish that there is a “reasonable chance” or “serious possibility” of persecution (Adjei v Canada (Minister of Employment and Immigration), 1989 CanLII 5184 (FCA), [1989] 2 FC 680 (FCA) at paras 5-8; Sebastio v Canada (Minister of Citizenship and Immigration), 2016 FC 803 at paras 13-14 [Sebastio]). The standard of proof for facts on which a claimant relies is a balance of probabilities. However, once proven, the legal threshold to demonstrate persecution is only a “serious possibility”.

In Zhu,^{Note 184} the Trial Division held that once the evidence established that the claimant's information was given to counsel for the accused and filed in evidence at a public trial in Canada and in publicly accessible court records, it was patently unreasonable for the Board to suggest that further evidence was required to establish that the information actually came to the attention of a potential agent of persecution in the claimant's country of origin.  In the Court's view, that is too high a requirement to establish more than a mere possibility of persecution.

In Kammoun,^{Note 185} the claimant had voluntarily approached representatives from his country in Canada.  The Court held that the proper inquiry was whether the claimant's denouncement, albeit voluntary, of the Tunisian authorities in Canada could cause a negative reaction on the part of the authorities and, as a result, cause a risk should the claimant return.

When a considering a sur place claim, the Board is to adopt the perspective of the state against which the person claims risk.^{Note 186}

Assessing a sur place claim is not limited to whether the authorities in the claimant's home country will find out about the claimant's activities abroad. The likelihood of authorities in the home country finding out about activities abroad may be largely determinative of the issue of prospective risk where the claim is based exclusively on, for example, political activities abroad. However, where the sur place claim relates to a condition that will continue upon return, such as religion, the risk of persecution based on this condition must be assessed regardless of whether authorities would find out about activities in Canada. Accordingly, the Board must also consider whether the claimant would continue the activities in question, for example practicing their religion, if returned to their home country.^{Note 187}

It is an error for the Board to base its analysis of the sur place claim (based on religious persecution) on the basis of an expectation that the claimant should be discreet about their religious beliefs upon return to the country.^{Note 188}

5.7.3. Claimant’s motivation may be relevant to risk assessment

Although there is no good faith requirement for a sur place claim, a decision-maker is entitled to consider a claimant's motivation when assessing the sincerity of the claimant's beliefs. The genuineness of the claimant's belief may be relevant to the risks that they may face upon return to their home country. In appropriate cases, the Board may find that the claimant would not likely engage in the political or religious activities in question on return to their country.^{Note 189}

In Su,^{Note 190} the Court found that it was not unreasonable for the Board to have assessed and considered the claimant's motive for practicing Falun Gong as a reason for rejecting his sur place claim. While beginning to practice a religion solely to buttress a refugee claim cannot, in and of itself, be the basis for rejecting a sur place claim, the Board may legitimately have regard to such motive in assessing genuineness of a claimant's claimed religious beliefs. The Court adopted its reasons from an earlier decision in Hou:^{Note 191}

[C]ontrary to what the applicant claims, Canadian case law does recognise that motive for engaging in a religious practice in Canada may be considered by the RPD in an appropriate case. However, a finding that a claimant was motivated to practice a religion in Canada to buttress a fraudulent refugee claim cannot be used, in and of itself, as a basis to reject the claim. Rather, the finding that the claimant has been motivated by a desire to buttress his or her refugee claim is one factor that may be considered by the RPD in assessing the sincerity of a claimant's religious beliefs.

The sincerity of those beliefs will be an issue in cases, like the present, where continuing the religious practice in the country of origin might place the claimant at risk. If the beliefs are not genuine, then there is no risk, as a claimant would not practice his or her newly-acquired religion in the country of origin if adherence to the religion is motivated solely by a desire to support a refugee claim. On the other hand, there may well be situations where a claimant might initially have been motivated to join a religion due to these types of motivations, but along the route, may have developed faith and become a true adherent of the religion.

In a series of recent cases involving claimants from China, this Court has applied the holding in Ejtehadian [v Canada (Minister of Citizenship and Immigration), 2007 FC 158] and held that the Board cannot reject a sur place claim due solely to lack of credibility or improper motive but, rather, must assess the genuineness of the applicant's religious practice to determine if he or she will be at risk if returned to the country of origin […] In Jin and Wang [v Canada (Minister of Citizenship and Immigration), 2011 FC 614] […] the Board noted the questionable motive for conversion but then went on to assess the genuineness of the applicant's conversion and found it to be lacking. The Board based its findings on the claimants' lack of credibility, the fact that they had fabricated stories about being Christians in China and their lack of knowledge of the details of the religion they claimed to practice. Because the claimants were found to not be genuine practitioners, the RPD held they would not practice their claimed religions if returned to China and thus were determined to face no risk. And this Court upheld the Board's findings in those cases. In short, in circumstances very much like the present, the RPD's decisions were upheld.

5.7.4. Credibility

Some cases have held that the Board is not required to deal with the issue of whether the claimant is a refugee sur place where it determines that the basis of the claim is not credible.^{Note 192} However, other cases hold that the Board should consider the sur place claim even when it does not believe the claimant's account of their experiences in the home country.^{Note 193}

The Court has held that the Board is entitled to import its credibility findings about the claimant's experiences in their home country into its sur place analysis. In Jiang,^{Note 194} the Board found that the claimant had fabricated her claim to be a Falun Gong practitioner in China and that she had become a practitioner only to support her fraudulent claim and she was not a genuine practitioner. The claimant submitted that the Board erred by relying on its findings that she had fabricated her claim to be a practitioner in China to conclude that she had not become a genuine practitioner after coming to Canada. The Court rejected that argument, holding that the Board must be entitled to import its credibility findings into its assessment of a claimant's sur place claim. However, the Board must still consider the full context of what the claimant has done since coming to Canada, and it is improper to make a bald assertion that the claimant is not a genuine practitioner today just because they were not a genuine practitioner in China.^{Note 195}  In Zheng,^{Note 196} the Court rejected the argument that negative credibility findings can only be imported into an assessment of a sur place claim when the findings are so serious as to put a claimant's overall credibility into question.

5.7.5. Events in the claimant’s home country

A claimant may be a refugee sur place as a consequence of events which have occurred in their country of origin since departure,^{Note 197} or because of a significant intensification of pre-existing factors since departure from their country.^{Note 198}

In a sur place claim based on the insecurity in the country of reference (in this case^{Note 199} it was the major upheaval that occurred in Tunisia after the claimants left their country), the Court agreed with the RPD that there was no connection between that situation and the claim for refugee protection and that the claimants were affected to the same degree as all the citizens of their country.

A claimant may become a refugee sur place by virtue of the actions of Canadian authorities in that person's home country.^{Note 200}

In a sur place claim, while it is correct to inquire into the police response to a potential request for state protection, it is an error to require the claimant to have already pursued state protection.^{Note 201}

Exit Laws

Claimants sometimes claim that they will face a risk of persecution because they exited their home country illegally or overstayed the period authorized by an exit visa. Please see Chapter 9 for a discussion of this topic. ​