- Note 1
Alfarsy, Asma Haidar Jabir v. M.C.I. (F.C., no. IMM-3395-02), Russell, December 12, 2003; 2003 FC 1461.
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- Note 2
Buterwa, Bongo Tresor v. M.C.I. (F.C., no. IMM-902-11), Mosley, October 19, 2011; 2011 FC 1181.
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- Note 3
Kerimu, Calvin v. M.C.I. (F.C., no. IMM-9793-04), Blanchard, February 28, 2006, 2006 FC 264. This case is followed in
Stankov, Todor Georgiev v. M.C.I. (F.C., no. IMM-6712-05), Blais, August 6, 2006; 2006 FC 991; and in
Sarker, Sanjoy v. M.C.I. (F.C., no. IMM-6418-13), de Montigny, December 3, 2014; 2014 FC 1168, where the Court agreed with the applicant that when a hearing is conducted by reverse order-questioning (member first, then counsel), “the person with the onus is no longer in control of the process and there is an increased burden on the Board to ensure that issues which are determinative of the claim are raised at the hearing.”
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- Note 4
Adjei v. Canada (Minister of Employment and Immigration),  2 F.C. 680 (C.A.).
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- Note 5
Stoyanov, Gueorgui Ivanov v. M.E.I. (F.C.A., no. A-206-91), Hugessen, Mahoney, Décary, April 26, 1993, at 2, Justice Hugessen, speaking for the Court, stated: “… when the [Refugee] Division has a refugee claim before it, it must apply the test stated by this Court in
Adjei, and not … the test (assuming that it is different) that would apply to an application for loss of status (“cessation”) made by the Minister under s. 69.2. [now s. 108(2)]” Some decisions of the Trial Division, in the context of the debate on the “Hathaway test”, have taken the position that there may be a different (i.e., higher) standard of proof that is applied at a cessation hearing under section 69.2 of the Immigration Act, e.g.,
Villalta, Jairo Francisco Hidalgo v. S.G.C. (F.C.T.D., no. A-1091-92), Reed, October 8, 1993. See, however,
Youssef, Sawsan El-Cheikh v. M.C.I. (F.C.T.D., no. IMM-990-98), Teitelbaum, March 29, 1999, which actually involved a cessation application, for a different view. See also
M.C.I. v. Serhan, Jaafar (F.C.T.D., no. IMM-539-00), Dawson, September 19, 2001; 2001 FCT 1029, which held that the correct test on applications for cessation is whether changes occurred which rendered the previously established fear of persecution to be unfounded.
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- Note 6
See James C. Hathaway,
The Law of Refugee Status (Toronto: Butterworths, 1991), pages 200-203. When discussing the cessation clause, which has been incorporated into section 108(1)(e) of the
Immigration and Refugee Protection Act and was previously found in section 2(2)(e) of the
Immigration Act, Professor Hathaway stated that the changes must be shown to be of (1) substantial political significance, (2) truly effective, and (3) durable. This is the so-called three-prong “Hathaway test” referred to in the jurisprudence.
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- Note 7
Yusuf, Sofia Mohamed v. M.E.I. (F.C.A., no. A-130-92), Hugessen, Strayer, Décary, January 9, 1995. Reported:
Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N.R. 11 (F.C.A.). Leave to appeal to the S.C.C. denied June 22, 1995.
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- Note 8
Rahman, Sheikh Mohammed Mostafizur v. M.E.I. (F.C.A., no. A-398-92), Hugessen, Létourneau, Robertson, March 3, 1995, at 1.
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- Note 9
Fernandopulle, Eomal v. M.C.I. (F.C.A., no. A-217-04), Sharlow, Nadon, Malone, March 8, 2005; 2005 FCA 91. In Anthonipillai, Anton Jekathas v. M.C.I. (F.C., no. IMM-1273-13), Simpson, June 25, 2014; 2014 FC 611, the Court rejected the applicant’s argument that the RPD had erred in not applying the three-pronged test (substantial, effective and durable) and noted that “the law is now clear that there is no such test… [see
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- Note 10
Rahman, Faizur v. M.E.I. (F.C.A., no. A-1244-91), Marceau, Desjardins, Létourneau, May 14, 1993, at 3, the ouster of President Ershad (in Bangladesh) followed by the electoral victory of the claimant’s party, in the view of Marceau J.A., “may, in themselves, recent though they have been, amount to a sufficient change of circumstances, given the basis of the fear on which the [claimant] relied.” However, in
Ahmed, Ali v. M.E.I. (F.C.A., no. A-89-92), Marceau, Desjardins, Décary, July 14, 1993, Marceau J.A. cautioned that “the mere declarations of the new four-month old government that it favoured the establishment of law and order can hardly be seen, when the root of the [claimant’s] fear and the past record of the new government with respect to human rights violations are considered, as a clear indication of the meaningful and effective change which is required to expunge the objective foundation of the … claim.” On the other hand, when dealing with changes of longer duration, in
Ofori, Beatrice v. M.E.I. (F.C.T.D., no. IMM-3312-94), Gibson, March 14, 1995, the Court stated at 4: “Durability does not equate with permanence. … the concept of meaningful and effective change implies an element of durability, not in an absolute sense but in a comparative sense …” The Court came to a similar conclusion in
Castellanos, Julio Alfredo Vaquerano v. M.C.I. (F.C.T.D., no. IMM-2082-94), Gibson, October 18, 1994. Reported:
Castellanos v. Canada (Minister of Citizenship and Immigration) (1994), 30 Imm. L.R. (2d) 77 (F.C.T.D.), where Gibson J. stated at 80: “I know of no decision of this court that has adopted the position that changes must be: ‘… durable in the sense that there is no possible chance of a reversal in the future.’” Moreover, after conceding that “the situation was not perfect and that some unrest continued,” the Court in
Belozerova, Natalia v. M.C.I. (F.C.T.D., no. IMM-912-94), Simpson, May 25, 1995, stated at 4: “No one can predict the future and there is no doubt that, in situations charged with ethnic rivalry, there will always be some uncertainty.”
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- Note 11
Abarajithan, Paramsothy v. M.E.I. (F.C.A., no. A-805-90), Stone, MacGuigan, Linden, January 28, 1992, the CRDD was found to have relied incorrectly on tentative changes in Sri Lanka (cooperation between the Tigers and the Sri Lankan Army). In
Magana, Douglas Ivan Ayala v. M.E.I. (F.C.T.D., no. A-1670-92), Rothstein, November 10, 1993, at 303-304, the Court categorized the articles published before or at the time of the three-month-old peace accord in El Salvador as “preliminary, tentative indications of the effect of the changes … especially in light of contrary evidence … that the peace process was in danger and death squad activity continued.” In
Agyakwah, Elizabeth Lorna v. M.E.I. (F.C.T.D., no. A-7-93), McKeown, December 10, 1993, the CRDD was found to have erred in relying on the lifting of the ban on political parties just two days prior to the hearing where no change of government had occurred and the poor human rights record of the Ghanaian government was longstanding. In
Antonio, Neto Xavier v. M.C.I. (F.C.T.D., no. A-472-92), Noël, January 27, 1995, the CRDD erroneously relied on tentative changes in Angola: the peace accord was only a few days old; the same regime was in power; elections were supposed to take place in 18 months; a previous accord had failed; the accord contained no guarantee for former enemies of the regime. In
Chaudary, Imran Akram v. M.C.I. (F.C.T.D., no. IMM-2048-94), Reed, May 4, 1995, the Court held, at 4, that the statement that “a greater possibility of stability” than existed previously did not carry “sufficient weight to counterbalance a finding that an objective basis would otherwise exist.” In
Quaye, Sarah Adjoa v. M.C.I. (F.C.T.D., no. IMM-3999-00), Tremblay-Lamer, May 23, 2001; 2001 FCT 518, the Court noted that “cultural and traditional normes [sic] do not change overnight,” and that “the mere enactment of new laws” may not be in itself sufficient to remove the objective basis of the claim. In
Alfarsy, supra, footnote 1, the Court stated that declarations of intent must be examined against the history of the conflict with a view to evaluating the likely permanence of the changes.
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- Note 12
Soe, Than v. M.P.S.E.P. (F.C. no. IMM-2957-17), Kane, May 30, 2018; 2018 FC 557 at paragraphs 114-122.
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- Note 13
Rahman, Faizur supra, footnote 10, at 2, per Marceau J.A.: “Whether a change of circumstances is sufficient for a fear of persecution to be no longer well-founded must naturally be determined in relation to the basis of and reasons for the fear relied on.”
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- Note 14
See, for example, Umana, Cesar Emilio Campos v. M.C.I. (F.C. no. IMM-1434-02), Snider, April 2, 2003; 2003 FCT 393 where the claimant was targeted due to his relationship with his partner. Since the relationship had broken down since they arrived in Canada, the Court upheld the RPD’s conclusion that this constituted a change in circumstances such that the claimant was no longer at risk.
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- Note 15
Ahmed, supra, footnote 10, per Marceau J.A.
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- Note 16
Kifoueti, Didier Borrone Bitemo v. M.C.I. (F.C.T.D., no. IMM-937-98), Tremblay-Lamer, February 11, 1999. In this case, as in Vodopianov, Victor v. M.E.I. (F.C.T.D., no. A-1539-92), Gibson, June 20, 1995, the changes were so recent that there was no evidence to indicate how the new regime would behave.
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- Note 17
Mohamed, Mohamed Yasin v. M.E.I. (F.C.T.D., no. A-1517-92), Denault, December 16, 1993, at 4.
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- Note 18
Chowdhury, Mashiul Haq v. M.E.I. (F.C.T.D., no. 92-A-6565), Noël, June 2, 1993; Munkoh, Frank v. M.E.I. (F.C.T.D., no. IMM-4056-93), Gibson, June 3, 1994; Ventura, Simon Alberto v. M.E.I. (F.C.T.D., no. IMM-6061-93), Cullen, October 5, 1994; Hanfi, Aden Abdullah v. M.E.I. (F.C.T.D., no. A-610-92), Gibson, March 31, 1995. In Alam, Mohammed Mahfuz v. M.C.I. (F.C.T.D., no. IMM-4883-97), McGillis, October 7, 1998, the Court held that the CRDD failed to consider the specific evidence that the claimant’s problems with the police and with goons of the BNP continued after the election of the Awami League.
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- Note 19
Doganian, Rafi Charvarch v. M.E.I. (F.C.A., no. A-807-91), Hugessen, MacGuigan, Décary, April 26, 1993. In Moz, Saul Mejia v. M.E.I. (F.C.T.D., no. A-54-93), Rothstein, November 12, 1993. Reported: Moz v. Canada (Minister of Employment and Immigration) (1993), 23 Imm. L.R. (2d) 67 (F.C.T.D), the claim was referred back to the CRDD to obtain evidence relating to the treatment of army deserters in El Salvador. See also Vodopianov, supra, footnote 16, and Kifoueti, supra, footnote 16 , where the changes were so recent that there was no evidence to indicate how the new regime would behave. In Alfarsy, supra, footnote 1, the Court held that if the legal action against the claimants was politically based, there is no reason to assume that they would be treated differently from other party members who had previously suffered persecution, legal harassment and incarceration.
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- Note 20
Hernandez, Alvaro Odilio Valladares v. M.E.I. (F.C.A., no. A-210-90), Stone, Linden, McDonald, July 7, 1993.
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- Note 21
See rules 36, 43 and 50 of the Refugee Protection Division Rules.
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- Note 22
M.E.I. v. Salinas, Marisol Escobar (F.C.A., no. A-1323-91), Stone, MacGuigan, Henry, June 22, 1992. Reported: Canada (Minister of Employment and Immigration) v. Salinas (1992), 17 Imm. L.R. (2d) 118 (F.C.A.).
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- Note 23
Canada (Minister of Employment and Immigration) v. Obstoj,  2 F.C. 739 (C.A.), at 746.
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- Note 24
Although section 2(3) of the Immigration Act is framed as an exception to section 2(2)(e), there was no requirement for a formal determination of cessation of status in the context of a hearing under section 69.1 (as would be required in the context of a hearing under section 69.2 of that Act). The same can be said about section 108(4) of IRPA.
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- Note 25
Isacko, Ali v. M.C.I. (F.C., no. IMM-9091-03), Pinard, June 28, 2004; 2004 FC 890. The Court then went on to endorse the decision in Shahid, Iqbal v. M.C.I. (F.C.T.D., no. IMM-6907-93), Noël, February 15, 1995. Reported: Shahid v. Canada (Minister of Citizenship and Immigration) (1995), 28 Imm. L.R. (2d) 130 (F.C.T.D.), which was decided under the Immigration Act.
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- Note 26
Martinez, Luis Amado Contreras v. M.C.I. (F.C., no. IMM-3662-05), Noël, March 17, 2006; 2006 FC 343; Lorne, Daniella Chandya v. M.C.I. (F.C., no. IMM-3542-05), von Finckenstein, March 27, 2006; 2006 FC 384; and Stapleton, Elizabeth Sylvia v. M.C.I. (F.C., no. IMM-1315-06), Blanchard, November 1, 2006; 2006 FC 1320.
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- Note 27
Najdat, Parviz v. M.C.I. (F.C., no. IMM-3995-05), Russell, March 9, 2006; 2006 FC 302. The Court also rejected the argument “that the psychological trauma resulting from the lashing and treatment by Iranian authorities should give rise to a compelling reasons analysis under section 108(4) as a separate and distinct avenue for seeking protection, rather than an exception that should be considered where past persecution sufficient to qualify for refugee protection has been established and accepted but refugee status should not be conferred because the "reasons for the claim have ceased to exist.”
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- Note 28
In Obstoj, supra, footnote 23 , at 748, Justice Hugessen stated that the exception applies, “…even though they may no longer have any reason to fear further persecution.” This interpretation was followed in Hassan, Nimo Ali v. M.E.I. (F.C.T.D., no. A-653-92), Rothstein, May 4, 1994.
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- Note 29
Najdat, supra, footnote 27.
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- Note 30
Jairo, Marcos Amador Soto v. M.C.I. (F.C., no. IMM-3864-13), de Montigny, June 26, 2014; 2014 FC 622.
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- Note 31
Cortez, Delmy Isabel v. S.S.C. (F.C.T.D., no. IMM-2482-93), McKeown, December 15, 1993, at 2. In Sow, Kadiatou v. M.C.I. (F.C., no IMM-1493-11), Russell, November 16, 2011; 2011 FC 1313, the Court stated that s. 108 (4) is engaged when the reasons for the claim have ceased to exist due to changed country conditions, not a change in personal circumstances. However, this restriction does not appear to have been explicitly adopted in other cases. Other cases refer to the requirement for a change in country conditions but do not go on to explicitly exclude changes in personal circumstances.
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- Note 32
Hassan, Noor v. M.E.I. (F.C.A., no. A-831-90), Isaac, Heald, Mahoney, October 22, 1992. Reported: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Brovina, Qefsere v. M.C.I. (F.C., no. IMM-2427-03), Layden-Stevenson, April 29, 2004; 2004 FC 635; and Kalumba, Banza v. M.C.I. (F.C., no. IMM-8673-04), Shore, May 17, 2005; 2005 FC 680. There is some confusion in the pre-Cihal, infra, footnote 33 , case law as to what point in time the claimant had to have met the requirements for Convention refugee. For example, in Singh, Gurmeet v. M.C.I. (F.C.T.D., no. IMM-75-95), Richard, July 4, 1995. Reported: Singh, (Gurmeet) v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm. L.R. (2d) 226 (F.C.T.D.), at 230, the Court referred to the fact that the claimant “might at one time have been a Convention refugee” (emphasis added). The principle of alienage, i.e., a claimant must be outside his or her country of origin, would necessitate that the person met the requirements of refugeehood at the time of departure from his or her country of origin, and that there was a subsequent change in circumstances, before the panel could consider the compelling reasons exception. The existence of past persecution does not automatically trigger the need to consider the application of the exception.
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- Note 33
Cihal, Pavla v. M.C.I. (F.C.A., no. A-54-97), Stone, Evans, Malone, May 4, 2000. See also M.C.I. v. Dolamore, Jessica Robyn (F.C.T.D., no. IMM-4580-00), Blais, May 1, 2001; 2001 FCT 421, where the Court held that the CRDD erred in not examining the issue of state protection regarding the claimant’s objective fear before considering whether there was a change of circumstances (and compelling reasons). In Adjibi, Marcelle v. M.C.I. (F.C.T.D., no. IMM-2580-01), Dawson, May 8, 2002; 2002 FCT 525, the Court held that the CRDD erred in not considering whether section 2(3) of the Immigration Act applied to the minors’ claims, since the principal claimant had been found to be persecuted and the claims of all of the claimants were dismissed on the basis of changed country conditions.
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- Note 34
Corrales, Maria Cecilia Abarca v. M.C.I. (F.C.T.D., no. IMM-4788-96), Reed, October 3, 1997. See also Naivelt, Andrei v. M.C.I. (F.C., no. IMM-9552-03), Snider, September 17, 2004; 2004 FC 1261. See also Martinez, and Stapleton, supra, footnote 26.
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- Note 35
In Ortiz, Ligia Ines Arias v. M.C.I. (F.C.T.D., no. IMM-4416-01), Pinard, November 13, 2002; 2002 FCT 1163, the CRDD determined that the claimant had not established that she was in fact at risk from her former employer. Since there were no changed country conditions, the exception did not apply. See also Thiaw, Hamidou v. M.C.I. (F.C., no. IMM-6877-05), Blais, August 14, 2006; 2006; 2006 FC 965, where the RPD determined that the claimant was a victim of discrimination and not persecution. The Court held that in the absence of a previous finding of persecution, the compelling reasons exception does not apply.
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- Note 36
In Kudar, Peter v. M.C.I. (F.C., no. IMM-2218-03), Layden-Stevenson, April 30, 2004; 2004 FC 648, the Court stated that:
… there may be situations where the board can be said to implicitly have found that a claimant was previously a refugee and, but for the changed country conditions, would still be a refugee. This is not such a case. The RPD found that police protection was available to Mr. Kudar. Thus, the board found that he was not a refugee. The changed country conditions do not apply. Nor does the exception of compelling reasons…
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- Note 37
Guzman, Jesus Ruby Hernandez v. M.C.I. (F.C.T.D., no. IMM-3748-97), Rothstein, October 29, 1998. Note: A distinction needs to be drawn between a case where the evidence shows that there was a fundamental lack of subjective fear, as in Guzman, and a case where there was once a subjective fear and that fear no longer exists because of a change of circumstances. In the latter case, the claimant can still argue that there are compelling reasons not to return him or her to the country of past persecution.
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- Note 38
Gyamfuah, Cecilia v. M.E.I. (F.C.T.D., no. IMM-3168-93), Simpson, June 3, 1994. Reported: Gyamfuah v. Canada (Minister of Employment and Immigration) (1994), 25 Imm. L.R. (2d) 89 (F.C.T.D.), at 94; Abdul, Gamel v. M.C.I. (F.C.T.D., no. IMM-1796-02), Snider, February 28, 2003; 2003 FCT 260. See also Rahman, Kbm Abdur v. M.C.I. (F.C., no. IMM-4634-06), Snider, July 3, 2007; 2007 FC 689, where the rationale was applied in relation to section 108(4) of IRPA since the Board did not believe the claimants’ fear of past persecution in their country (Bangladesh). Similarly, in Krishan, Bal v. M.C.I. (F.C. no. IMM-1113-18), McVeigh, November 29, 2018; 2018 FC 1203, the Court stated that it was a “condition precedent” that the claimant would have once qualified as either a Convention refugee or person in need of protection. Since the RPD disbelieved the claimant, there was no condition precedent for the application of the compelling reasons exception.
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- Note 39
Sangha, Karamjit Singh v. M.C.I. (F.C.T.D., no. IMM-1555-98), Reed, September 8, 1998; Kalumba, supra, footnote 32. In Singh, Gurmeet v. M.C.I., supra, footnote 32 , the Court held that, since the determination was based, in part, on a change of circumstances, the finding that the claimants had an IFA did not excuse the panel from considering the “compelling reasons” exception, given the past persecution and supporting medical report. In Rabbani, Sayed Moheyudee v. M.C.I. (F.C.T.D., no. IMM-236-96), Noël, January 16, 1997, the Court held that the CRDD had erred, for among other reasons, because its finding that the claimant had an IFA in Afghanistan was inconsistent with its implied finding that there must have been a fear of persecution throughout the country prior to the change of circumstances.
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- Note 40
Moore, Clara v. M.C.I. (F.C.T.D., no. IMM-682-00), Heneghan, October 27, 2000.
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- Note 41
M.C.I. v. Yamba, Yamba Odette Wa (F.C.A., no. A-686-98), Isaac, Robertson, Sexton, April 6, 2000.
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- Note 42
The principles in Yamba, supra, footnote 41,were recently confirmed in Cabdi, Mhad Cali v. M.C.I. (F.C., no.IMM-1365-15), Gleeson, January 8, 2016; 2016 FC 26, where the Court found the RAD’s failure to consider the compelling reasons exception to be a reviewable error because the RAD decision reflected that the applicant had suffered past persecution, and that the reasons for which the applicant was seeking refugee protection had ceased to exist. Also see Velez , Daniel Augusto Aristizabal v. M.C.I. (F.C., no. IMM-3964-17), Brown, March 13, 2018; 2018 FC 290.
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- Note 43
See Buterwa, supra, footnote 2 and Rajadurai, Kalaichelvan v. M.C.I. (F.C., no. IMM-5030-12), Strickland, May 22, 2013; 2013 FC 532. In Ravichandran, Karthik Mario v. M.C.I. (F.C. no. IMM-313-17), Elliott, August 2, 2018; 2018 FC 811, in the context of an application in the Convention refugee abroad class, the Court found the visa officer erred by not considering the compelling reasons exception despite not making an explicit finding of past persecution or a change in circumstances. By accepting the truth of the applicants’ allegations and then discussing the effect of the passage of time on the applicants’ future fear, the condition precedent for considering the compelling reasons exception was implicitly met.
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- Note 44
Alfaka Alharazim, Suleyman v. M.C.I. (F.C., no. IMM-1828-09), Crampton, October 22, 2010; 2010 FC 1044. See also Brovina, supra, footnote 32 , where the Court said that there was no need to make a finding of past persecution because the RPD properly made a forward-looking analysis and concluded that the claimant would not suffer future persecution. The Court noted that it was implicit in the RPD reasons that the panel had found that the claimant had not experienced past persecution. Brovina was distinguished in Buterwa, supra, footnote 2, where the Court stated that Brovina does not stand for the proposition that the Board does not have to consider whether the compelling reasons exception should be applied in every case in which it does not make an express finding of past persecution. In Buterwa, there was nothing in the RPD reasons to support a finding that the claimant had not experienced past persecution (as an 8 year-old he had witnessed the brutalization and rape of his mother and later had been brutalized and raped in a prison camp). The Court concluded that “[T]he member side-stepped the question of past persecution and proceeded directly to review present conditions in the DRC. This did not, in my view, absolve the Board from its statutory obligation to consider whether the applicant had established compelling reasons why he should not be required to go back there. That obligation was simply ignored. See alsoSabaratnam, Manivannan v. M.C.I. (F.C., no. IMM-8703-11), Rennie, July 4, 2012, 2012 FC 844;Kostrzewa, Grzegorz v. M.C.I. (F.C., no. IMM-4563-11), Crampton, December 7, 2012; 2012 FC 1449, where the Court noted that there is no obligation on the Board to consider s. 108(4) unless (i) it has specifically found that the applicant has suffered past persecution; or (ii) there is prima facie evidence of past persecution that is so exceptional in its severity that it rises to the level of being “appalling” or “atrocious”; and Rajadurai, supra, footnote 43 .
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- Note 45
Obstoj, supra, footnote 23 , at 748.
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- Note 46
This caution was repeated in subsequent decisions of the Federal Court, e.g., Cortez, supra, footnote 31, at 2 (“in unusual circumstances”); Yusuf., supra, footnote 7, at 1-2 (“that very rare class of persons to whom this exceptional provision applies”). The following cases are examples of fact situations that have come before the Board over the years.In Arguello-Garcia, Jacobo Ignacio v. M.E.I. (F.C.T.D., no. 92-A-7335), McKeown, June 23, 1993 (amended reasons issued November 10, 1993). Reported: Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.), the claimant had suffered serious physical and sexual abuse while in detention for 45 days, and his relatives had been killed. The CRDD decision rejecting his claim was overturned. In Lawani, Mathew v. M.C.I. (F.C.T.D., no. IMM-1963-99), Heneghan, June 26, 2000, the Court held that the CRDD erred when, after accepting the claimant’s evidence as credible, it found that there was insufficient evidence that his treatment was sufficiently appalling and atrocious. The claimant was brutally and severely ill-treated by government agents while in detention, including being hung upside down for long periods of time, being burnt with hot irons and cigarette fire, being whipped on the back and being made to expose his genitalia to the guards who inserted broom sticks and needles into his penis. In Gorria, Pablo Mauro v. M.C.I. (F.C., no. IMM-3003-06), Beaudry, March 16, 2007; 2007 FC 284, the Court stated: “Sexual assault and physical assault such as that to which the applicant was subjected are not to be measured on a sliding scale of atrocity when the immutable factor giving rise to such victimization and human degradation, forms one of the very core characteristics enunciated and protected under Article 5 of the Declaration of Human Rights. … Sexual assault is appalling and atrocious particularly in this instance where it is used as a tool by the police against the applicant’s sexual orientation. Similarly, physical assault and the form of prior persecution inflicted on the applicant were such that it was patently unreasonable for the Board to ask the applicant to return to not only his country, Argentina, but to his home city, Buenos Aires, where the events took place.” On the other hand, in Siddique, Ashadur Rahman v. M.C.I. (F.C.T.D., no. IMM-4838-93), Pinard, July 18, 1994, the Court upheld the CRDD’s finding that the torture the claimant had endured during his 15-day detention in Bangladesh in the early 1980s, albeit abhorrent, did not constitute atrocious persecution. In E.T. v. S.S.C. (F.C.T.D., no. IMM-3380-94), Gibson, June 1, 1995;  F.C.J. No. 857, the Court upheld the CRDD’s finding that the claimant’s detention, torture, beatings and sexual assaults were not “sufficiently serious”, “atrocious” or “appalling” to warrant the application of section 2(3). See also similar findings in R.E.D.G. v. M.C.I. (F.C.T.D., no. IMM-2523-95), McKeown, May 10, 1996;  F.C.J. No. 631, where the claimant had been abducted, beaten and raped; and Nallbani, Ilir, v. M.C.I. (F.C.T.D., no. IMM-5935-98), MacKay, June 25, 1999, where the claimant had been detained on five occasions, beaten, tortured, deprived of food and drink, and his life threatened. In Gicu, Andrei Marian v. M.C.I. (F.C.T.D., no. IMM-2140-98), Tremblay-Lamer, March 5, 1999, the Court pointed out that the events reported by the claimant (internment in a psychiatric hospital for a few months, two periods of imprisonment and beatings during his stays in prison) did not meet the test required by the case law in terms of the level of atrocity. In Nwaozor, Justin Sunday v. M.C.I. (F.C.T.D., no. IMM-4501-00), Tremblay-Lamer, May 23, 2001; 2001 FCT 517, the claimant’s father was killed, though not in the claimant’s presence, and his brother shot by unknown persons; the claimant and other family members had been beaten and harassed by the Nigerian army on three occasions over a 6-month period. The Court upheld the CRDD’s finding that this did not meet the high standard of “atrocious and appalling”.
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- Note 47
Hassan, supra, footnote 32, at 5-6.
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- Note 48
Shahid, supra, footnote 25 , at 138; Hitimana, Gustave v. M.C.I. (F.C.T.D., no. IMM-5804-01), Pinard, February 21, 2003; 2003 FCT 189; Isacko, supra, footnote 25 .
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- Note 49
Suleiman, Juma Khamis v. M.C.I. (F.C., no. IMM-1439-03), Martineau, August 12, 2004; 2004 FC 1125. Reported: Suleiman v. Canada (Minister of Citizenship and Immigration),  2 F.C.R. 26 (F.C.).
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- Note 50
Kotorri, Rubin v. M.C.I. (F.C., no. IMM-1316-05), Beaudry, September 1, 2005; 2005 FC 1195. As such the Board has no specific expertise in this task.
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- Note 51
Shahid, supra, footnote 25 , at 138. This approach was cited with approval in Adjibi, infra, footnote 33 ; and, in relation to IRPA, in Isacko, supra, footnote 25 . In Shahid, the Court (at 136) also set out a summary of the state of the case law based on Arguello-Garcia., supra, footnote 46 , however some of those propositions, especially the second one (relating to ongoing subjective fear), are in doubt, as shown by the discussion earlier in the text of this chapter (section 7.2.1).
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- Note 52
Adjibi, supra, footnote 33 .
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- Note 53
Shahid, supra, footnote 25 .
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- Note 54
Igbalajobi, Buki v. M.C.I. (F.C.T.D., no. IMM-2230-00), McKeown, April 18, 2001; 2001 FCT 348.
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- Note 55
Biakona, Leonie Bibomba v. M.C.I. (F.C.T.D., no. IMM-1706-98), Teitelbaum, March 23, 1999. See also Quintero Guzman, Jean Pierre Hernan v. M.C.I. (F.C., no. IMM-2458-08), Kelen, December 1, 2008; 2008 FC 1329, where the RPD decision was overturned for failing to provide an explanation of why the abhorrent attack was insufficient to trigger the application of s. 108(4). See also Suleiman, supra, footnote 49 . In Kulla, Saimir v. M.C.I. (F.C., no. IMM-6837-03), von Finckenstein, August 24, 2004; 2004 FC 1170, the Court upheld the Board’s finding that the incidents were merely “abhorrent” but not sufficiently atrocious or appalling to trigger the “compelling reasons” exception. See also, to the same effect, Oprysk, Vitaliy v. M.C.I. (F.C., no. IMM-5441-06), Mandamin, March 7, 2008; 2008 FC 326.
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- Note 56
Moya, Silvia Myrian v. M.C.I. (F.C., No. IMM-2227-15), Kane, March 14, 2016; 2016 FC 315.
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- Note 57
Suleiman, supra, footnote 49 , this decision was followed in Kotorri, supra, footnote 50.
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- Note 58
Shpati, Zef v. M.C.I. (F.C., no. IMM-1801-06), Snider, March 1, 2007; 2007 FC 237.
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- Note 59
Arguello-Garcia, supra, footnote 46 , at 288-289, per McKeown J.: “The Concise Oxford Dictionary of Current English, Clarendon Press, Oxford, 1990, contains the following definitions: “atrocious”: 1 very bad or unpleasant … 2 extremely savage or wicked (atrocious cruelty). “Atrocity”: 1 an extremely wicked or cruel act, esp. one involving physical violence or injury … “appalling”: shocking, unpleasant; bad.”
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- Note 60
Kulla, Hasan v. M.C.I. (F.C.T.D., no. IMM-4707-99), MacKay, August 24, 2000, Justice MacKay commented:
In this case, while I am persuaded that the panel’s conclusion is not adequately explained, having found the claimant’s past experience to be ‘cruel and harsh’ but not ‘atrocious’ and ‘appalling’, ultimately, in my opinion the panel did not address the issue that was raised.
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- Note 61
Dini, Majlinda v. M.C.I. (F.C.T.D., no. IMM-3562-98), Reed, June 24, 1999.
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- Note 62
In Dini, Majlinda v. M.C.I. (F.C.T.D., no. IMM-2596-00), Gibson, March 22, 2001; 2001 FCT 217, the Court certified the following question:
In relation to a determination under s. 2(3) of the Immigration Act, does a finding of “compelling reasons” require a finding of “appalling” or “atrocious” past persecution?
The appeal in this case was dismissed by the Court of Appeal on May 21, 2002 because the appeal record was not filed on time.
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- Note 63
Elemah, Paul Omorogbe v. M.C.I. (F.C.T.D., no. IMM-2238-00), Rouleau, July 10, 2001; 2001 FCT 779.
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- Note 64
Adjibi, supra, footnote 33 .
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- Note 65
Suleiman, supra, footnote 49 . This decision was followed in Kotorri, supra, footnote 50.
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- Note 66
In Kazi, Feroz Adeel v. M.C.I. (F.C.T.D., no. IMM-850-97), Pinard, August 15, 1997, the Court upheld a CRDD decision where the claimant did not provide evidence that he suffered continuing psychological after-effects of the previous persecution.
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- Note 67
Mwaura, Anne v. M.C.I. (F.C., no. IMM-7462-14), Brown, July 16, 2015; 2015 FC 874.
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- Note 68
Arguello-Garcia., supra, footnote 46 , at 289. See also Adaros-Serrano, Maria Macarena v. M.E.I. (F.C.T.D., no. 93-A-124), McKeown, September 31, 1993. Reported: Adaros-Serrano v. Canada (Minister of Employment and Immigration) (1993), 22 Imm. L.R. (2d) 31 (F.C.T.D.), at 38, where the Court directed the CRDD to consider (at the rehearing of the claim) the fact that the claimant suffered from a post-traumatic stress disorder.
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- Note 69
Jiminez, Wilfredo v. M.C.I. (F.C.T.D., no. IMM-1718-98), Rouleau, January 25, 1999. Relying on the evidence presented, the CRDD had concluded that the claimant’s psychological state at the time of the hearing was premised on the severe brain injury he had suffered in Canada and possibly on contributing factors such as alcohol and drugs, and that, therefore, “there was insufficient evidence upon which to base a finding that the [claimant’s] experience of persecution in El Salvador was so exceptional that it causes ongoing suffering of the order experienced by the applicant in Arguello-Garcia., supra, footnote 46 .” The Court found that the CRDD had erred in its approach and remitted the case back for a determination of whether or not the claimant’s experiences in El Salvador alone met the exceptional circumstances envisioned by section 2(3) of the Immigration Act.
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- Note 70
Hinson, Jane Magnanang v. M.C.I. (F.C.T.D., no. IMM-5034-94), Richard, July 18, 1996, at 5-6.
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- Note 71
Hitimana, supra, footnote 48 . In Gicu, supra, footnote 46 , the Court noted that, given the claimant’s adaptability and resourcefulness, it was difficult to conclude he had suffered from a psychological trauma so severe that he continued to be affected by it nearly ten years after it had occurred. See also Isacko, supra, footnote 25 , where the Court held that the Board did not err in its conclusion that the claimant had not proven that he suffered permanent psychological consequences of the level required for section 108(4) of IRPA.
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- Note 72
Igbalajobi, supra, footnote 54 . In Hinson, supra, footnote 70, the Court held that it was improper to draw an adverse inference from the fact that the claimant delayed in obtaining a medical report, especially when the report in question diagnosed post-traumatic stress syndrome; nor does a delay in seeking psychological treatment in such a case mean that there was no adverse psychological effect.
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- Note 73
Arguello-Garcia, supra, footnote 46 .
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- Note 74
In Velasquez, Ana Getrudiz v. M.E.I. (F.C.T.D., no. IMM-990-93), Gibson, March 31, 1994, the Court stated, in obiter, that a finding of “compelling reasons” may be based on the persecution inflicted on a family member (spouse). In Bhardwaj, Shanti Parkash v. M.C.I. (F.C.T.D., no. IMM-240-98), Campbell, July 27, 1998. Reported: Bhardwaj v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 192 (F.C.T.D.), the CRDD applied section 2(3) of the Immigration Act to the eldest daughter of a family of claimants because she was profoundly affected by witnessing the shooting of her mother, but denied the other claims, including the mother’s. The Court found that the CRDD disregarded psychiatric evidence regarding the effect of the incident on the mother.
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- Note 75
Kulla, Saimur, supra, footnote 55 .
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- Note 76
Villegas Echeverri, Clara Ines v. M.C.I. (F.C., no. IMM-4046-10), Crampton, March 30, 2011; 2011 FC 390.
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- Note 77
Hitimana, supra, footnote 48 ; Suleiman, supra, footnote 49 .
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- Note 78
In Aragon, Luis Roberto v. M.E.I. (F.C.T.D., no. IMM-4632-93), Nadon, August 12, 1994, the Court held that the CRDD had not properly considered the circumstances surrounding the claimant’s return to El Salvador (namely, to see his mother). The torture he experienced had also occurred during an earlier visit, but this too was held not to be a bar to invoking section 2(3) of the Immigration Act. But see Ahmed, Jawad v. M.C.I. (F.C., no. IMM-6673-03), Mosley, August 5, 2004; 2004 FC 1076, where the Court upheld the Board’s finding that compelling reason did not exist, noting that the claimant’s voluntary return to his country was indicative of a lack of subjective fear. See also the discussion on reavailment in chapter 5, section 5.5.
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- Note 79
Adjibi, supra, footnote 33 . See also M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Décary, Létourneau, Nadon, March 5, 2008; 2008 FCA 84, which is discussed in chapter 2, section 2.1.1. Multiple Nationalities.
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- Note 80
Chaudri, Tahir Ahmad Nawaz v. M.E.I. (F.C.A., no. A-1278-84), Thurlow, Hugessen, McQuaid, June 5, 1986. Reported: Chaudri v. Canada (Minister of Employment and Immigration) (1986), 69 N.R. 114 (F.C.A.); Diallo, Abdou Salam v. M.C.I. (F.C.T.D., no. A-1157-92), Noël, June 8, 1995.
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- Note 81
Ghazizadeh, Reza v. M.E.I. (F.C.A., no. A-393-90), Hugessen, MacGuigan, Décary, May 17, 1993. Reported: Ghazizadeh v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 236 (F.C.A.).
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- Note 82
Ben Zaied, Ali v. M.C.I. (F.C., no. IMM-7171-11), Boivin, June 18, 2012; 2012 FC 771.
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- Note 83
Urur, Mohamed Ahmed v. M.E.I. (F.C.A., no. A-228-87), Pratte, Joyal, Walsh, January 15, 1988.In Cai, Heng Ye v. M.C.I. (F.C.T.D., no. IMM-1088-96), Teitelbaum, May 16, 1997, the Court underscored the importance of considering the claimant’s activities both in the home country and abroad in combination.
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- Note 84
Barry, Abdoulaye v. M.C.I. (F.C.T.D., no. IMM-573-01), Pinard, February 26, 2002; 2002 FCT 203; Ghribi, Abdelkarim Ben v. M.C.I. (F.C., no. IMM-2580-02), Blanchard, October 14, 2003; 2003 FC 1191; Lai, Li Min v. M.C.I. (F.C., no. IMM-1849-04), Simpson, February 8, 2005; 2005 FC 179.
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- Note 85
Manzila, Nicolas v. M.C.I. (F.C.T.D., no. IMM-4757-97), Hugessen, September 22, 1998. See also A. B. v. M.C.I. (F.C., no. IMM-3497-08), Gibson, March 27, 2009; 2009 FC 325. Reported: A.B. v. Canada (Minister of Citizenship and Immigration),  2 F.C.R. 75 (F.C.), a PRRA case involving a claimant who rejected Islam after he came to Canada.
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- Note 86
Demirtas, Alev v. M.C.I. (F.C., no. IMM-1781-10), O’Keefe, May 19, 2011; 2011 FC 584. See also Hannoon, Rami v. M.C.I. (F.C., no. IMM-3079-11), O’Keefe, April 18, 2012; 2012 FC 448, where the Court noted that “once a sur place claim was present, it was for the Board to deal with it …and should have considered the evidence and arguments presented.” In Gurung, Subash v. M.C.I. (F.C., no. IMM-10808-12), Mosley, October 16, 2013; 2013 FC 1042, the Court allowed the judicial review application because the RPD failed to deal with the sur place claim. Although the sur place claim was raised late, the issue was squarely put before the Board at the hearing and in post-hearing evidence. In Desalegn, Tiruedel v. M.C.I. (F.C. no., IMM-2400-16), Russell, November 25, 2016; 2016 FC 1311, the Court held that where an appellant raises a sur place issue in her submissions to the RAD, the RAD should consider the issue. The same obligation applies to a PRRA officer, see Reyad Gad, Malak Lofti v. M.C.I. (F.C., no. IMM-4714-10), Harrington, March 14, 2011; 2011 FC 303.
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- Note 87
Huang, Xiao Fang v. M.C.I. (F.C., no. IMM-3396-11), Zinn, February 10, 2012; 2012 FC 205. In this case, the evidence that was discounted without an explanation related to the claimant’s current religious beliefs.
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- Note 88
Alfaro, Victor Labrador v. M.C.I. (F.C., no. IMM-7390-10), Rennie, July 22, 2011; 2011 FC 912.
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- Note 89
Nasha Ragguette, Onica Efuru v. M.C.I. (F.C., no. IMM-7214-10), Rennie, December 21, 2011; 2011 FC 1511.
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- Note 90
Ghazizadeh, supra, footnote 81.
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- Note 91
Tang, Xiaoming v. M.C.I. (F.C.T.D., no. IMM-3650-99), Reed, June 21, 2000.
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- Note 92
In M.C.I. v. Asaolu, Daniel Oluwafemi (F.C.T.D., no. IMM-237-98), Campbell, July 31, 1998. Reported: Canada (Minister of Citizenship and Immigration) v. Asaolu (1998), 45 Imm. L.R. (2d) 190 (F.C.T.D.), Canadian immigration authorities sent the claimant’s story and photograph to a Canadian visa officer in Nigeria to facilitate an investigation of his claim of persecution. The Court considered paragraphs 94-96 of the UNHCR Handbook. In Mutamba, Phydellis v. M.C.I. (F.C.T.D., no. IMM-2868-98), Pinard, April 15, 1999, Canadian authorities in Nairobi and Harare made inquiries of the Zimbabwean government with respect to the claimant’s passport application.
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- Note 93
In Vafaei, Farah Angiz v. M.E.I. (F.C.T.D., no. IMM-1276-93), Nadon, February 2, 1994, the Court referred specifically to paragraph 96 of the UNHCR Handbook. See also André, Marie-Kettelie v. M.E.I. (F.C.T.D., no. A-1444-92), Dubé, October 24, 1994, where the CRDD found that the claimant’s participation in a large pro-Aristide demonstration in Montreal was not likely to cause her problems in Haiti.
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- Note 94
Zhu, Yong Qin v. M.C.I. (F.C.T.D., no. IMM-5678-00), Dawson, September 18, 2001; 2001 FCT 1026. Reported: Zhu v. Canada (Minister of Citizenship and Immigration),  1 F.C. 379 (T.D.). The claimant, who arrived on a Korean vessel, had informed the RCMP about individuals later charged in Canada with offences relating to human smuggling and was subpoenaed to testify at their trial. He feared that if he returns to China he would be severely punished by the Chinese authorities and that the “snakeheads” in China seriously harm him, if not kill him.
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- Note 95
Win, Ko Ko v. M.C.I. (F.C., no. IMM-1248-08), Shore, March 28, 2008; 2008 FC 398.
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- Note 96
See Said, Mohamed Ahmed v. M.E.I. (F.C.T.D., no. 90-T-638), Teitelbaum, May 1, 1990, where the claimant continued to demonstrate against the Kenyan government after he had been ordered excluded from Canada; and Herrera, Juan Blas Perez de Corcho v. M.E.I. (F.C.T.D., no. A-615-92), Noël, October 19, 1993, where the claimant spoke out against the Cuban regime after claiming refugee status in Canada.
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- Note 97
Ye, Jin v. M.C.I. (F.C., no. IMM-5518-13), Zinn, January 8, 2015; 2015 FC 21. See also Yang, Xiaohong v. M.C.I. (F.C., no. IMM-8012-11), Rennie, July 4, 2012; 2012 FC 849, where the Court found the RPD decision to be unreasonable because it had erroneously said there exists a “good faith” requirement for one’s religious beliefs.
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- Note 98
Su, Hao Wen v. M.C.I. (F.C., no. IMM-7356-12), Gleason, May 17, 2013; 2013 FC 518.
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- Note 99
Su, supra, footnote 98 . A case where the Court accepted that the RPD can import its overreaching credibility findings into its implicit consideration of whether a sur place claim arises in the case is Sanaei, Izad v. M.C.I. (F.C., no. IMM-11449-12), Strickland, April 30, 2014; 2014 FC 402. In Su, Jialu v. M.C.I. (F.C., no. IMM-4968-14), Fothergill, May 25, 2015; 2015 FC 666, the Court noted that the RPD is permitted to conduct its sur place analysis in view of its concerns regarding the original authenticity of a claim but must nevertheless determine, either implicitly or explicitly, whether the applicant, due to events that have transpired since his departure from his country of origin, has become a member of a persecuted group and whether he would now face persecution upon his return.
Return to note 99 referrer
- Note 100
Li, Mengting v. M.C.I. (F.C. no. IMM-5548-17), Gagné, August 31, 2018; 2018 FC 877 at paragraph 29.
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- Note 101
Ngongo, Ndjadi Denis v. M.C.I. (F.C.T.D., no. IMM-6717-98), Tremblay-Lamer, October 25, 1999.
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- Note 102
Hathaway, The Law of Refugee Status, supra, footnote 6, page 39.
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- Note 103
Asfaw, Napoleon v. M.C.I. (F.C.T.D., no. IMM-5552-99), Hugessen, July 18, 2000. In El Aoudie, Nour El Houda v. M.C.I. (F.C., no. IMM-7166-11), Shore, April 19, 2012; 2012 FC 450, the Court held that the RPD erred by limiting its analysis to the genuineness of the conversion instead of assessing whether that conversion made the applicant a refugee sur place.
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- Note 104
Ghasemian, Marjan v. M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003; 2003 FC 1266.
Return to note 104 referrer
- Note 105
Danian v. Secretary of State for the Home Department,  E.W.J. No. 5459 online: QL.
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- Note 106
Ejtehadian, Mostafa v. M.C.I. (F.C., no. IMM-2930-06), Blanchard, February 12, 2007; 2007 FC 158; Mohajery, Javad v. M.C.I. (F.C., no. IMM-2528-06), Blanchard, February 19, 2007; 2007 FC 185. For a similar case involving a Chinese convert, see Chen, Hanqi v. M.C.I. (F.C., no. IMM-5203-08), de Montigny, June 29, 2009; 2009 FC 677.
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- Note 107
Mutangadura, Chipo Pauline v. M.C.I. (F.C., no. IMM-2553-06), Phelan, March 20, 2007; 2007 FC 298.
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- Note 108
See Nthoubanza, Arthur Jholy v. M.C.I. (F.C.T.D., no. IMM-207-98), Denault, December 17, 1998. See also Sani, Navid Shahnazary v. M.C.I. and M.P.S.E.P.C. (F.C., nos. IMM-5284-07 and IMM-5285-07), Lagacé, July 30, 2008; 2008 FC 913, where, given the doubts about the sincerity with respect to the claimant’s conversion, the PRRA officer found that he could very well return to Islam once he was back in Iran and thus avoid being considered an apostate.
Return to note 108 referrer
- Note 109
Mohebbi, Hadi v. M.C.I. (F.C., no. IMM-3755-13) Harrington, February 26, 2014; 2014 FC 182.
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- Note 110
Kammoun, M. Hammadi Ben Hassen v. M.C.I. (F.C., no. IMM-4096-05), Tremblay-Lamer, February 3, 2006; 2006 FC 128.
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- Note 111
Zandi, Reza v. M.C.I. (F.C., no. IMM-4168-03), Kelen, March 17, 2004; 2004 FC 411. See also Mohajery, supra, footnote 106 .
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- Note 112
Valentin v. Canada (Minister of Employment and Immigration),  3 F.C. 390 (C.A.). For a discussion of this topic see Chapter 9, section 9.3.5. on Exit Laws.
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- Note 113
Moradi, Ahmad v. M.C.I. (F.C.T.D., no. IMM-2317-97), MacKay, September 23, 1998.
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- Note 114
Maina, Ali Adji v. M.C.I. (F.C.T.D., no. IMM-1221-99), Gibson, March 14, 2000; Yang, Hua v. M.C.I. (F.C.T.D., no. IMM-380-00), Gibson, November 24, 2000. But see Igbinosun, Nelson v. M.C.I. (F.C.T.D., no. IMM-7410-93), McGillis, November 17, 1994, M.C.I. v. Mbouko, Augustin (F.C. No. IMM-1988-04), Lemieux, January 31, 2005; 2005 FC 126, and M.C.I. v. Habimana, Djuma, (IMM-5616-08), Pinard, January 6, 2010, 2010 FC 16, where the Court held that the Board did not properly assess the impact of the contact with the foreign authorities, i.e., were they already aware of the claimant’s situation or was it disclosed that the claimant had claimed refugee protection in Canada. An analysis of those factors is a determining factor in deciding whether the claimant was endangered by the actions of the Canadian authorities.
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