Chapter 9 - Particular situations

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Table of Contents

  1. 9.1. Introduction
  2. 9.2. Civil War or Other Prevalent Conflict
    1. 9.2.1. Two Approaches: Comparative and Non-Comparative
      1. 9.2.1.1. Background
      2. 9.2.1.2. The Non-Comparative Approach is the Legal and Preferred Test
  3. 9.3. Prosecution, or Persecution for a Convention Reason?
    1. 9.3.1. Limits to Acceptable Legislation and Enforcement
    2. 9.3.2. Laws of General Application
    3. 9.3.3. Policing Methods, National Security and Preservation of Social Order
    4. 9.3.4. Enforcement and Serious Possibility
    5. 9.3.5. Exit Laws
    6. 9.3.6. Military Service: Conscientious Objection, Evasion, Desertion
    7. 9.3.7. One-Child Policy of China
    8. 9.3.8. Religious or Cultural Mores
      1. 9.3.8.1. Restrictions upon Women
      2. 9.3.8.2. Ahmadis from Pakistan
  4. 9.4. Indirect Persecution and Family Unity
  5. Table of Cases

9. Particular situations

9.1. Introduction

This Chapter explores situations where more than one element of the Convention refugee definition is involved. At issue is not only whether what the claimant faces is persecution, but also whether there is a nexus to one of the Convention refugee grounds. The situations can be complex and difficult to analyze: the key is to identify what requirements are imposed by each element and to discern which circumstances in the situation go to which element.

9.2. Civil War or Other Prevalent Conflict

The core of the case law in this area consists of two decisions from the Court of Appeal. The first of these is Salibian,Note 1 which sets out four general principles:Note 2

It can be said in light of earlier decisions by this Court on claims to Convention refugee status that
  1. the applicant does not have to show that he had himself been persecuted or would himself be persecuted in the future;
  2. the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged;
  3. a situation of civil war in a given country is not an obstacle to a claim provided the fear felt is not that felt indiscriminately by all citizens as a consequence of the civil war, but that felt by the applicant himself, by a group with which he is associated, or, even, by all citizens on account of a risk of persecution based on one of the reasons stated in the definition; and
  4. the fear felt is that of a reasonable possibility that the applicant will be persecuted if he returns to his country of origin ….

The Court goes on to adopt the following description of the applicable law (provided by Professor Hathaway):Footnote 3

In sum, while modern refugee law is concerned to recognize the protection needs of particular claimants, the best evidence that an individual faces a serious chance of persecution is usually the treatment afforded similarly situated persons in the country of origin. In the context of claims derived from situations of generalized oppression, therefore, the issue is not whether the claimant is more at risk than anyone else in her country, but rather whether the broadly based harassment or abuse is sufficiently serious to substantiate a claim to refugee status. If persons like the applicant may face serious harm for which the state is accountable, and if that risk is grounded in their civil or political status, then she is properly considered to be a Convention refugee.

The second of the leading precedents is the very brief decision in Rizkallah,Footnote 4 where the Court of Appeal said:

To succeed, refugee claimants must establish a link between themselves and persecution for a Convention reason. In other words, they must be targeted for persecution in some way, either personally or collectively.

… the evidence, as presented to us, falls short of establishing that Christians in the claimant's Lebanese village were collectively targeted in some way different from the general victims of the tragic and many-sided civil war.Footnote 5

Since Salibian and Rizkallah, there have been multiple decisions in cases involving civil war. Most have cited, and purported to apply, Salibian and/or Rizkallah; none has taken issue with Salibian or Rizkallah. Neither expressly nor by implication do these later cases yield much in the way of additional, clear principles, although the application of the principle has not been uniform.

One further principle which has emerged is that a claimant’s membership in one of the two groups involved in a two-sided conflict does not by itself establish that the claimant is a Convention refugee.Footnote 6

9.2.1. Two Approaches: Comparative and Non-Comparative

The earlier jurisprudence involving claims arising out of civil war situations generated much confusion and inconsistency. Eventually, out of the confusion emerged an interpretation which was adopted by the Board in its Chairperson’s Guidelines on Civilian Non-Combatants Fearing Persecution in Civil War Situations.Footnote 7 The Guidelines adopt the non-comparative approach. What follows explains the development of the jurisprudence.

9.2.1.1. Background

The older case law seemed to suggest that, in considering whether there is a nexus between the harm feared and a Convention ground, the Courts were taking two different approaches to civil war claims and to the application of Salibian and Rizkallah.

This is due to the interpretation of the wording used by the Court in these two cases. Specifically, in Rizkallah, the claim was seen as deficient because those constituting the claimant’s group were not “collectively targeted in some way different from the general victims of the … civil war.” In Salibian, the Court stated that in order for a claim to succeed, the claimant’s fear must not be “that felt indiscriminately by all citizens as a consequence of the civil war”.

In some cases where these or similar phrases were invoked,Footnote 8 it appears that the Court saw this language as authority for adopting a “comparative approach”, which involves comparing the claimant’s predicament with the circumstances of other persons in the same country, and requiring that the claimant’s predicament be worse than the predicaments of other people.Footnote 9

In other cases, the Court took the position that a claimant who belongs to a groupFootnote 10 which is at risk of attack by some second group may qualify as a Convention refugee - and, in particular, has the requisite nexus - even if persons other than the claimant and groups other than the claimant’s group are also at risk of attack by the same or different attackers. This is colloquially known as the “non-comparative” approach.

According to the non-comparative approach, a claim which arises in a context of widespread violence must meet the same conditions as any other claim. The content of those conditions is no different for such a claim, nor is the claim subject to extra requirements or disqualifications. Thus, under this approach, the decision maker would consider:

  • Serious harm: whether the treatment that the claimant anticipates would amount to serious harm. The question is whether the harm which this particular claimant might experience is serious, not whether the claimant is at risk of harm greater than that to which some other group, or some other person in the claimant’s own group, might be subjected.
  • Risk of harm: whether there is a reasonable chance that the claimant would experience the apprehended harm. The issue is not whether this particular claimant carries a degree of risk greater than that which attaches to some other person or group.
  • Nexus: whether there is a nexus between the anticipated inflicting of harm upon the claimant and one of the Convention grounds.Footnote 11 It is a matter of identifying the particular source(s) or perpetrator(s) who might inflict harm upon this particular claimant, and determining whether that perpetrator’s reason for inflicting harm would tally with one of the grounds.Footnote 12 The claimant is not to be disqualified because other persons in the claimant’s group or in different groups might also be targeted for similar reasons.
9.2.1.2. The Non-Comparative Approach is the Legal and Preferred Test

In Ali, Shaysta-Ameer,Footnote 13 the Court of Appeal affirmed that the proper test for persecution in a civil war context is the non-comparative approach set out in the Salibian and Rizkallah cases and, as noted earlier, advocated in the Chairperson's Guidelines, Civilian Non-Combatants Fearing Persecution in Civil War Situations.Footnote 14 The Court cited, with approval, the following passages from the Guidelines:

Non-comparative Approach

The non-comparative approach to the assessment of a claim is the approach advocated in these Guidelines. This approach is more in accord with the third principle set out in Salibian, the decisions of the Court of Appeal in Rizkallah and Hersi, Nur Dirie, as well as the wording of the Convention refugee definition. With this approach, instead of an emphasis on comparing the level of risk of persecution between the claimant and other individuals (including individuals in the claimant's own group) or other groups, the Court examines the claimant's particular situation, and that of her group, in a manner similar to any other claim for Convention refugee status.

The issue is not a comparison between the claimant's risk and the risk faced by other individuals or groups at risk for a Convention reason, but whether the claimant's risk is a risk of sufficiently serious harm and is linked to a Convention reason as opposed to the general, indiscriminate consequences of civil war. A claimant should not be labelled as a "general victim" of civil war without full analysis of her personal circumstances and that of any group to which she may belong. Using a non-comparative approach results in a focusing of attention on whether the claimant's fear of persecution is by reason of a Convention ground. (footnotes omitted)

In Fi,Footnote 15 the Federal Court cited with approval the following statement referred to in the Guidelines: “if one of the warring parties singles out a person or group of persons for reasons of race, political opinion or one of the other elements enumerated in the refugee definition and subjects it serious human rights violations this clearly constitutes persecution”.

9.3. Prosecution, or persecution for a convention reason?

9.3.1. Limits to Acceptable Legislation and Enforcement

Any state is entitled to have, and to enact, laws which will contribute to the better, safer, more just functioning of the national community and its government. And any state is entitled to impose penalties upon those who break its laws. However, from the standpoint of international human rights law, there is a line over which the state cannot legitimately step. To determine whether the state has limited itself to its proper sphere or has overstepped, the Refugee Protection Division must be mindful of the distinction between two kinds of cases: (a) cases in which the treatment foreseen for the claimant would be punishment for nothing other than the breach of a law that does not violate human rights, and does not adversely differentiate on a Convention ground, either on its face or in its application; and (b) cases in which the claimant’s actions might contravene a law of his homeland, but in which the law’s terms or its anticipated enforcement might infringe upon human rights and adversely differentiate.

9.3.2. Laws of General Application

The Federal Court has dealt at some length with questions relating to “laws of general application”. This term refers to a law which, on its face, applies to a country’s entire population, without differentiation; and the term is not properly employed if the law in question targets only some subset of the population.Footnote 16 For a time, the leading decision on this topic was Musial;Footnote 17 however, in Zolfagharkhani,Footnote 18 the Court of Appeal examined the theme in greater depth and provided interpretation of Musial. Therefore, Zolfagharkhani must now be regarded as pre-eminent. Musial should be used with caution, and only after taking Zolfagharkhani into account.

In Zolfagharkhani, the Court rejected the proposition that, so long as the action taken by a government against a claimant is the enforcement of “an ordinary law of general application”, the government is necessarily engaging in prosecution and not persecution. In a dictatorial or totalitarian state, any ordinary law of general application may well be an act of political oppression.Footnote 19

The Court of Appeal in ZolfagharkhaniFootnote 20 set forth “some general propositions relating to the status of an ordinary law of general application in determining the question of persecution”:

  1. The statutory definition of Convention refugee makes the intent (or any principal effect)Footnote 21 of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution.Footnote 22
  2. But the neutrality of an ordinary law of general application, vis-à-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required.Footnote 23
  3. In such consideration, an ordinary law of general application, even in non-democratic societies, should … be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory.
  4. It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground.

Seriousness of harm is another issue which has been addressed in connection with laws of general application. It is quite possible that a law or policy of general application may well be violative of basic human rights.Footnote 24 Also, in Cheung it was decided that a law of general application may be persecutory where the penalty is disproportionate to the objective of the law, regardless of the authorities’ intent:

… if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in furtherance of a legitimate end is still brutality.Footnote 25

In Chan (S.C.C.), Mr. Justice La Forest approved the comments of Linden J.A. regarding “state authority arguments” (as they were called by La Forest J.).Footnote 26 And La Forest J. provided his own observations with respect to the “legitimate end” idea:

... I do not in general consider it appropriate for courts to make implicit or explicit pronouncements on the validity of another nation’s social policies. In the present case, the full extent of the Chinese population policy is unknown in this country and undue speculation as to its legitimacy serves no purpose. Whether the Chinese government decides to curb its population is an internal matter for that government to decide. Indeed, there are undoubtedly appropriate and acceptable means of achieving the objectives of its policy that are not in violation of basic human rights. However, when the means employed place broadly protected and well understood basic human rights under international law such as the security of the person in jeopardy, the boundary between acceptable means of achieving a legitimate policy and persecution will have been crossed. It is at this point that Canadian judicial bodies may pronounce on the validity of the means by which a social policy may be implemented in an individual case by either granting or denying Convention refugee status ... [Emphasis added.]Footnote 27

(The distinction between the authorities’ objective and their means of achieving it is discussed further in section 9.3.3. of this chapter.)

Furthermore, a penalty which is disproportionate to the offence may constitute persecution.Footnote 28 When imposed for certain offences, the death penalty may not constitute persecution.Footnote 29

If the Refugee Protection Division applies the term “law of general application”, it must be careful to include within this characterization only what is actually authorized by the law in question. Where a given policy constitutes a law of general application, a particular sanction used to enforce that policy may not be a law of general application.Footnote 30 And even if such a law does figure in the claim, the Division certainly must not disregard measures which are beyond the law. Where there is evidence of extra-judicial punishment or (other) lack of due legal process, consideration must not be limited to the actual legislation itself.Footnote 31 Indeed, perversions in the application of the law, such as the bringing of a trumped-up charge, and interference in the due process of law, may be aspects of persecutory treatment.Footnote 32 In one instance, the Court of Appeal has said that pursuit of a claimant for refusing to carry out a government order will constitute mere prosecution only if the order was a “valid” one, and not one that was “illegal” or with “no legal foundation”.Footnote 33

If enforcement of the law against the claimant would proceed in accordance with due process, and if the sanctions for violating a particular law are not serious, the situation is not one of persecution.Footnote 34

9.3.3. Policing Methods, National Security and Preservation of Social Order

In some situations, the argument for the acceptability of state actions may rely not on the presence of any particular authorizing law (if any), but instead on the idea that those actions were aimed at the preservation of social order, against dangers such as crime and terrorism. Indeed, the actions in question, rather than being approved by law, may be of very doubtful legality.

In this context as well, the courts have grappled with the question of whether harmful conduct may be excused by the purpose which prompts the authorities to engage in the conduct. In the first place, the above-quoted statement from Cheung - that “[b]rutality in furtherance of a legitimate end is still brutality”Footnote 35 - is again apposite. It is not rendered less relevant by the fact that the brutality is perpetrated without the screen, or superficial legitimation, of an authorizing law. Moreover, in Thirunavukkarasu,Footnote 36 a later decision dealing more directly with the notion of preserving the social order, the Court of Appeal ruled that “beatings of suspects can never be considered ‘perfectly legitimate investigations’ [into criminal or terrorist activities], however dangerous the suspects are thought to be.”Footnote 37 The Court also affirmed that

… the state of emergency in Sri Lanka cannot justify the arbitrary arrest and detention as well as beatings and torture of an innocent civilian at the hands of the very government from whom the claimant is supposed to be seeking safety.Footnote 38

It is inappropriate to dismiss mistreatment on the theory that, by transgressing the law, the claimant forfeited any right to complain about any treatment that was meted out to him or her in response. Rather than stating simply that the claimant could not expect to receive the authorities’ approval for committing illegal acts, the Refugee Protection Division must determine whether the treatment suffered by the claimant constituted persecution in the circumstances.Footnote 39

In a number of cases, the Court has applied reasoning of the kind that was subscribed to in Cheung and Thirunavukkarasu.Footnote 40 However, there have also been cases in which such reasoning has not been applied.Footnote 41 In some of these latter cases, the Trial Division judgments appear to contradict the letter and spirit of the opinions from the Court of Appeal.

According to some judges, national security and peace and order are valid social objectives of any state, and temporary derogation of civil rights in an emergency does not necessarily amount to persecution.Footnote 42 In this regard, before finding mistreatment to be non-persecutory because there is an emergency, the Refugee Protection Division should consider several matters: Is there indeed an emergency? Is the particular right that is being violated a derogable right, or is it non-derogable?Footnote 43 If the right is derogable, what is the nature of the particular emergency, what is the extent of the particular derogation, and is there a logical nexus between the emergency and the derogation?

Some judges have said that short-term detentions for the purpose of preventing disruptionsFootnote 44 or dealing with terrorismFootnote 45 do not constitute persecution. It may also be proper to conclude that some forms of violence, including beatings, do not amount to persecution in the circumstances of a particular case, even though they are reprehensible and violative of human rights;Footnote 46 for example, the mistreatment may not have been repetitive or sufficiently severe,Footnote 47 and there may be no prospect of its being repetitive or sufficiently severe in the future. However, given Cheung, and Thirunavukkarasu, the Refugee Protection Division should be cautious about deeming violent conduct to be non-persecutory.Footnote 48

9.3.4. Enforcement and Serious Possibility

Even if the evidence speaks of some harm that would qualify as serious, the Refugee Protection Division must consider whether there is a serious possibility that the harm will actually come to pass.Footnote 49 A statute which outlaws the claimant’s conduct or characteristic may be in existence, and it may provide for unconscionably severe punishment for that conduct or characteristic, but this does not necessarily mean there is a serious possibility that the punishment will be inflicted on the claimant. The Supreme Court has emphasized that, in a determination as to whether the claimant’s fear is objectively well founded, the relevant factors include the laws in the claimant’s homeland, together with the manner in which they are applied. In this connection, the Court cited paragraph 43 of the UNHCR Handbook.Footnote 50 Enforcement measures may vary from area to area within a country, and if this is the case, “the reasonableness of a fear of persecution depends, inter alia, on the practices of the relevant local authority”.Footnote 51

A pattern of non-enforcement might imply that there is less than a serious possibility.Footnote 52 However, a claimant should not have to live discreetly in order to avoid prosecution.Footnote 53 Also, Chairperson’s Guideline 9 indicates that even where laws criminalizing the claimant’s behaviour are not enforced, they may contribute to a climate of impunity and societal discrimination.Footnote 54

9.3.5. Exit Laws

Some countries have laws which impose restrictions on travel abroad. Such laws may make it an offence to depart without prior permission (illegal departure),Footnote 55 or to stay abroad beyond some stipulated period (overstay),Footnote 56 or to visit certain countries.Footnote 57 Where such laws exist, generally sanctions for breaching them are also on the books. In some instances there may, in addition, be provision for extending the authorized travel period before it ends, or for obtaining retroactive authorization of travels that were not approved in advance.

In Valentin, Marceau J.A. spoke to those situations in which “the claimant may face criminal sanctions in his or her own country for leaving the territory without authorization or for remaining abroad longer than his or her exit visa allowed.”Footnote 58 His Lordship stated:Footnote 59

Counsel then challenged the Board’s rejection of the argument based on the existence of section 109 of the Czech Criminal Code [the exit law] and the fear of imprisonment that the section aroused in the claimants … [C]ounsel recalled that there was one school of thought … [which was] prepared to admit that the mere fear of punishment under a provision such as section 109 … could amount to a well-founded fear of persecution and provide valid grounds for a refugee claim. We know that some supporters of this theory argue a sort of presumption that the authorities of the national State will automatically and inevitably interpret the decision of their fellow-citizen to leave the country without authorization, or to remain abroad beyond the time provided, as evidence of political opposition. Counsel acknowledged that this is an extreme position, which the vast majority of commentators rejected, and did not urge its acceptance per se

Neither the international Convention nor our Act, which is based on it, as I understand it, had in mind the protection of people who, having been subjected to no persecution to date, themselves created a cause to fear persecution by freely, of their own accord and with no reason, making themselves liable to punishment for violating a criminal law of general application. I would add … that the idea does not appear to me even to be supported by the fact that the transgression was motivated by some dissatisfaction of a political nature …, because it seems to me, first, that an isolated sentence can only in very exceptional cases satisfy the elements of repetition and relentlessness found at the heart of persecutionFootnote 60 …, but particularly because the direct relationship that is required between the sentence incurred and imposed and the offender’s political opinion does not exist.

Valentin effectively bars self-induced refugee status. That decision starts from the premise that a claimant has a valid exit visa. It then bars the claimant from relying on the self-created overstay as a ground of persecution.Footnote 61 However, the Board must consider the validity of the exit visa and the circumstances under which it was obtained. Where the claimant had to pay a bribe to obtain the security clearance necessary to obtain the visa, that puts the validity of the exit visa into question.Footnote 62

Where the claimant has violated an exit law, the decision to punish the claimant for that infraction, or to impose a certain degree of punishment, might be due to some characteristic of the claimant such as his political record. Repercussions beyond the statutory sentence may suggest that the actions of the authorities are persecutory.Footnote 63 The Board errs where it fails to consider whether the claimant would risk severe or extra-judicial treatment as a result of his or her illegal exit.Footnote 64

9.3.6. Military Service: Conscientious Objection, Evasion, Desertion

The claimant’s problems may be connected with a disinclination to serve in the military. Either the claimant entered the military and left it without authorization (i.e., the claimant deserted);Footnote 65 or the claimant was ordered to report for service, but refused to report or refused to be inducted; or the claimant has not yet received a call-up, but anticipates that the order will be forthcoming and does not wish to comply.

The courts have established some very basic points of departure for the analysis of such claims. Thus, conscientious objectors and army deserters are not automatically included in the Convention refugee definition, nor is a person precluded from being a Convention refugee because the person is a conscientious objector or deserter.Footnote 66 It is not persecution for a country to have compulsory military service.Footnote 67 An aversion to military service or a fear of combat is not in itself sufficient to justify a fear of persecution.Footnote 68

Both human rights and humanitarian law prohibit the recruitment and engagement of children in armed conflict.Footnote 69

Proceeding to a more detailed analysis of the claim, the Refugee Protection Division must consider whether the circumstances disclose a nexus between the treatment feared and one of the Convention grounds. ZolfagharkhaniFootnote 70 is the leading case with respect to nexus (and other factors) in military-service situations.Footnote 71 The principles quoted from that case earlier onFootnote 72 should be referred to for guidance when determining whether the claimant’s difficulties regarding service should be ascribed to a Convention ground, or instead should be considered punishment for a violation of a law of general application.

However, as an aside from Zolfagharkhani, the decision of the Federal Court of Appeal in AtesFootnote 73 has put into question whether conscientious objection to military service can ever be considered to be a ground for claiming Convention refugee status. The Court answered, without any analysis, the following certified question in the negative:

In a country where military service is compulsory, and there is no alternative thereto, do repeated prosecutions and incarcerations of a conscientious objector for the offence of refusing to do his military service, constitute persecution based on a Convention refugee ground?”

Zolfagharkhani indicates that it is not the claimant’s motivation for refusing to serve which is relevant, but rather the intent or principal effect of the conscription law.Footnote 74 In accordance with this guideline, one must ask whether the reaction of the authorities to the claimant’s refusal to serve would be a function of some Convention attribute which the claimant has, or would be perceived by the authorities as having (a political opinion often being the likeliest possibility).Footnote 75 Even where the claimant has no strong convictions which should be permitted to interfere with the claimant’s serving, his refusal might be regarded by the authorities as an indication of an opinion which is frowned upon by them.

However, it would seem that the motivation of the claimant has not been completely discarded as a factor in claims concerning military service, although the cases do not make clear to which element or elements (nexus, serious harm) it may relate, and exactly how it should be worked into the consideration of a particular element. In Zolfagharkhani itself, the Court of Appeal focused on the claimant’s reason of conscience for not wishing to serve, and laid considerable emphasis on the fact that the particular combat technique to which the claimant objected was abhorred by the international community; but the Court did not provide much explanation as to how such attending to the claimant’s reason of conscience was to be reconciled with the view that the claimant’s motivation is not relevant.Footnote 76 Furthermore, in subsequent decisions, the Court has repeatedly considered the claimant’s conscience, as well as the attitude of the international community to operations criticized by the claimant. Reliance has even been placed explicitly upon the “applicant’s motive”.Footnote 77 The reader should bear in mind these ambiguities in the case law when reviewing the following observations on reasons-of-conscience claims.Footnote 78

There is some debate - and some confusion - about the meaning of the term “conscientious objector”. In Popov, the Trial Division indicated that, “in the usual sense”, this term applied to a person who “was a pacifist or was against war and all militarism on the grounds of principle, either religious or philosophical.”Footnote 79 It may be correct to reserve this particular term for persons who are opposed to all militarism; but at the same time, it must be appreciated that what is important for the determination of a claim is not whether this particular label fits.

The important question is whether a claimant’s reason of conscience will be sufficiently significant only if it entails an opposition to all militarism (or is otherwise broad in scope). In Zolfagharkhani, the Court of Appeal indicated that a claimant’s objection may be entitled to respect even if it is more specific: where the claimant did not object to military service in general or to the particular conflict, but was opposed to the use of a particular category of weapon (namely, chemical weapons), the Court found his objection to be reasonable and valid.Footnote 80 Similarly, the Trial Division has held that a claimant may object to serving in a particular conflict, rather than objecting to military service altogether, and may still be a Convention refugee.Footnote 81

This is not to say that any narrow or limited objection of conscience will suffice. The objection may be regarded as sufficiently serious if the military actions objected to are judged by the international community to be contrary to basic rules of human conduct.Footnote 82 However, a military’s operations are not to be characterized as contravening international standards if there are only isolated violations of those standards. Instead, there must be offending military activity by the military forces which is condoned in a general way by the state.Footnote 83

The serious harm that is a requisite for persecution may be found in the forcing of the claimant to perform military service; where reasons of conscience are involved, there is also a violation of the claimant’s freedom of conscience; where military actions violate international standards, the claimant might be forced into association with the wrongdoing.Footnote 84 One must also bear in mind that some conscription activities may be extra-legal, and may therefore lack any basis for claiming to constitute legitimate exercises of state authority. An organization may have de facto authority and an ability to coerce persons into performing military service, yet not be a legitimate government, and have no right to conscript.Footnote 85

If a call-up for military service would not necessarily result in the claimant’s being compelled to perform military service, the injury to the claimant’s interests is less, and the legitimacy of the demands placed on the claimant by the state looms large. Therefore, where objections of conscience may enable the claimant to obtain an exemption from service, or assignment to alternative service (i.e., non-military service, or non-combat service, or service outside a particular theatre of operations), the conscription law may not be inherently persecutory.Footnote 86

Nor is there persecution if the penalties for refusing to serve are not harsh,Footnote 87 except perhaps where the refusal to serve occurs in the context of a military operation condemned as contrary to basic rules of human conduct.Footnote 88 The Refugee Protection Division must consider the actual practice in the treatment of deserters, and not just the penalty prescribed by law.Footnote 89

The Board must also consider whether the law of general application will be applied in a fair and neutral way to a particular claimant, both in regards to the prosecution and to the punishment.Footnote 90

Somewhat akin to the idea that the claimant would not be persecuted if he would not be forced into military activity is the notion that the Refugee Protection Division should not endorse an objection to compulsory military service in the country of reference if the claimant chose to immigrate to that country, knowing that compulsory service existed there.Footnote 91

The availability of state protection for deserters became the key issue in a series of cases involving U.S. servicemen during the war in Iraq. Two individuals, Hinzman and Hughey, voluntarily enlisted in the U.S. military. During their time in the military, they developed an objection to the war in Iraq, deserted, and came to Canada where they made refugee claims.

Their claims to refugee protection were rejected by the IRB. The RPDFootnote 92 found that the claimants would be afforded the full protection of a fair and independent military and civilian judicial process in the U.S. As a result they had not rebutted the presumption of state protection and their claims for refugee protection must fail. The RPD also found that they were not conscientious objectors because; (1) their decision to desert the U.S. military was motivated by opposition to a specific war and not by objection to war in general and (2) because the war in Iraq did not fall within the meaning of paragraph 171 of the UNHCR Handbook as being waged contrary to basic rules of human conduct. Lastly, the RPD found that the punishment they would likely receive as a result of their desertion would not be applied to them in a discriminatory way and would not be excessive or disproportionately severe.

Mactavish J., of the Federal CourtFootnote 93 upheld the RPD decisions, finding that paragraph 171 of the Handbook referred to “on the ground” conduct of a soldier and not to the legality of the war itself and that the claimants had not established that they would have been involved in unlawful acts had they gone to Iraq. Mactavish J. certified the following question:

When dealing with a refugee claim advanced by a mere foot soldier, is the question whether a given conflict may be unlawful in international law relevant to the determination which must be made by the Refugee Division under paragraph 171 of the UNHCR Handbook?

The Federal Court of Appeal,Footnote 94 in a unanimous decision, declined to answer the certified question. Evans J., writing for the Court, found that Hinzman and Hughey had not sufficiently pursued the opportunities to obtain state protection in the United States before asking for international protection. The following statements by the FCA are of interest:

  • The presumption of state protection applies equally to cases where an individual claims to fear prosecution by non-state entities and to cases where the state is alleged to be a persecutor. This is particularly so where the home state is a democratic country like the United States.
  • A claimant coming from a democratic country will have a heavy burden when attempting to show that he should not have been required to exhaust all of the recourses available to him domestically before claiming refugee status.

9.3.7. One-Child Policy of China

The People’s Republic of China had a policy which, subject to exceptions, restricted each couple to having one child. A variety of sanctions were used in attempts to secure compliance with the policy.Footnote 95 This policy was replaced in late 2015 with a two-child policy and it is unclear what sanctions are being used to enforce compliance. To the extent that similar restrictions and sanctions might be used, the law that has developed with respect to the one-child policy is still relevant.

Claims based on the one-child policy generated considerable jurisprudence. There are three leading decisions regarding this matter. In the earliest of the three, Cheung,Footnote 96 the Court of Appeal declared the claimants to be Convention refugees: they were a woman who was facing forced sterilization, and her minor daughter who had been born in violation of the policy. Cheung was a unanimous decision of three judges.

Next came the Court of Appeal’s decision in Chan,Footnote 97 where the majority found against a man who was allegedly facing forced sterilization. Two judges (Heald and Desjardins, JJ.A.) constituted the majority; the third (Mahoney J.A.), who had also been part of the bench in Cheung, dissented. Each of the three Court of Appeal judges in Chan produced a separate set of reasons, and there were significant differences even between the two majority decisions. It should be noted that the Supreme Court’s ruling in WardFootnote 98 came out after Cheung but before Chan (F.C.A.). The Court of Appeal in Chan considered both Cheung and Ward.

Chan (F.C.A.) was appealed, yielding the third of the principal authorities, the decision of the Supreme Court in Chan.Footnote 99 Again there was a split decision: by a four-to-three majority, the Court dismissed the appeal, affirmed the decisions of the Court of Appeal and the Refugee Division, and found against the appellant (claimant).

The crux of the judgment of the Supreme Court majority (per Major J.) was that the evidence was inadequate to make out the claimant’s allegations - notably, his allegation that there was a serious possibility he would be physically coerced into undergoing sterilization. Apart from recording views expressed by the Court of Appeal in Chan (including views concerning Cheung and Ward), Mr. Justice Major declined to discuss, or rule on, certain legal issues which had occupied that lower court in this case: e.g., whether forced sterilization constitutes persecution; whether the claim involved a particular social group; and whether the claimant’s having a second child was to be construed as an act which expressed a political opinion (or an act which would be perceived by the authorities as the expression of a political opinion).

The Supreme Court’s dissenting minority (per La Forest J.) had a different appreciation of the evidence, and would have left it to the Refugee Division to perform a further assessment of the evidence; however, in finding that the appeal should be allowed, the minority also addressed some of the legal issues which the majority had bypassed. The minority’s comments on these issues carry considerable persuasive authority, inasmuch as they were not contradicted by the majority, and represent the views of a significant number of Supreme Court justices; furthermore, insofar as these comments are an explanation of the Ward decision, it must be noted that the explanation was provided by the author of that decision, Mr. Justice La Forest.

Further particulars of these three leading decisions are set forth in the material that follows.

In the context of claims involving the one-child policy, the Court of Appeal has reiterated that all elements of the Convention refugee definition must be present. Thus, it has been noted that, where the claim concerns the breach of a valid policy, abhorrence of the penalty, or the presence of a well-founded fear of persecution, does not justify a finding that the claimant is a Convention refugee; it is also necessary that the punishment be for a Convention reason.Footnote 100 Conversely, if a link to a Convention ground is established, the claimant must still show that he or she has a well-founded fear of persecution.Footnote 101

On the issue of serious harm, both in Cheung and in Chan (F.C.A.) it was held that the anticipated mistreatment qualified. Thus, forced or strongly coercedFootnote 102 sterilization constitutes persecution, whether the victim is a womanFootnote 103 or a man.Footnote 104 In Cheung, Linden J.A. explained this conclusion as follows:Footnote 105

Even if forced sterilization were accepted as a law of general application, that fact would not necessarily prevent a claim to Convention refugee status. Under certain circumstances, the operation of a law of general application can constitute persecution. In Padilla …, the Court held that a Board must consider extra-judicial penalties which might be imposed. Similarly, in our case, the appellant’s fear is not simply that she may be exposed to the economic penalties authorized by China’s one child policy. That may be acceptable. Rather, the [claimant], in this case, genuinely fears forced sterilization; her fear extends beyond the consequences of the law of general application to include extraordinary treatment in her case that does not normally flow from that law … Furthermore, if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in furtherance of a legitimate end is still brutality.

The forced sterilization of women is a fundamental violation of basic human rights … The forced sterilization of a woman is a serious and totally unacceptable violation of her security of the person. Forced sterilization subjects a woman to cruel, inhuman and degrading treatment… I have no doubt, then, that the threat of forced sterilization can ground a fear of persecution within the meaning of Convention refugee under the Immigration Act.

In Chan (S.C.C.), Mr. Justice La Forest, in dissent, stated:

... [W]hatever technique is employed, it is utterly beyond dispute that forced sterilization is in essence an inhuman and degrading treatment involving bodily mutilation, and constitutes the very type of fundamental violation of basic human rights that is the concern of refugee law.Footnote 106

The Trial Division has held that forced abortion, being an invasion of a woman’s body, is equivalent to or worse than forced sterilization and, accordingly, constitutes persecution.Footnote 107 The Court has also recognized that the forcible insertion of an IUD constitutes persecution.Footnote 108 However, economic sanctions as a means to enforce compliance with the law, do not amount to persecution.Footnote 109

Regarding the requirement that the fear of persecution be well founded, the Trial Division observed that the issue was not whether the female claimant had been forced to undergo an abortion in the past, but instead whether there was a reasonable chance she would be forced to undergo one if returned to China.Footnote 110

Nexus was the principal area of disagreement between Cheung and Chan (F.C.A.). The two cases offered quite different views on the issue of whether the feared sterilization would be inflicted by reason of a Convention ground. Cheung held that there was a targeted social group;Footnote 111 the majority in Chan (F.C.A.) found otherwise.Footnote 112 Speaking for the majority in Chan (S.C.C.), Mr. Justice Major chose not to address the question of whether the case involved a particular social group.Footnote 113 However, La Forest J. (dissenting) held that “[p]ersons such as the appellant, if persecuted on the basis of having had more than one child, would be able to allege membership in a particular social group”.Footnote 114 Please refer to Chapter 4 for a fuller description of the views of the Supreme Court of Canada regarding particular social group.

Political opinion is another ground which might be invoked with respect to the one-child policy. However, in Chan (F.C.A.), Heald J.A. ruled that the authorities’ reaction to the claimant’s non-compliance would not be by reason of political opinion;Footnote 115 and Desjardins J.A. was apparently inclined toward the same conclusion.Footnote 116

In Cheng, while the claimant pointed to a social group (“those who violated Chinese government family planning policy”), religion also figured in the story. The claimant was a Roman Catholic, and it had been his religious beliefs that had prompted him to oppose the policy.Footnote 117

9.3.8. Religious or Cultural Mores

Every society has limits on what it regards as acceptable behaviour. In some countries, the norms of the society (or the norms laid down by some ruling group) may be more constraining than elsewhere. The norms may interfere with the exercise of human rights, and may impose limitations on certain categories of people - categories which may be defined by Convention-protected characteristics. These restrictions may be entrenched in law, and may be backed up by coercive action and penalties. A claimant who transgresses the conventions of his or her homeland (and perhaps, at the same time, violates the law) may be at risk of serious harm.

When dealing with the norms of other societies, the Refugee Protection Division should bear in mind that an application of the Convention refugee definition involves measuring the claimant’s situation, and any actions visited upon the claimant, against human rights standards which are international (and which may sometimes be interpreted by reference to Canadian law).Footnote 118 It is not appropriate simply to defer to the notions of propriety favoured by the majority or the rulers in the claimant’s homeland. In this regard, reference should be made to Chapter 3, Section 3.1.1.1.Footnote 119

Among the claims which concern societal norms are those of women who face restrictions associated with religion or tradition, and those of Ahmadis from Pakistan.

9.3.8.1. Restrictions upon Women

Regarding the seriousness of harm, the Trial Division has termed female circumcision a “cruel and barbaric practice”, a “horrific torture”, and an “atrocious mutilation”.Footnote 120

In Namitabar, the Trial Division held that punishment under an Iranian law requiring women to wear the chador may constitute persecution. The Court noted that the penalty would be inflicted without procedural guarantees, and that the penalty was disproportionate to the offence.Footnote 121 In Fathi-Rad, another case involving the Iranian dress code, the Trial Division found that the treatment accorded the claimant for purely minor infractions of the Islamic dress code in Iran was completely disproportionate to the objective of the law.Footnote 122 On the other hand, in Hazarat,Footnote 123 the Trial Division upheld a finding that restrictions imposed on women by laws and practices under the Mujahadeen government in Afghanistan (including restrictions concerning dress, movement outside the home, travel, education and work) amounted to discrimination only, not persecution.

In Vidhani, the claim of an Asian, Moslem woman from Kenya derived from the fact that her father had arranged a marriage for her. She did not wish to marry the man in question, and feared that this man would abuse her if they did marry. She also feared being abused by her father if she refused to marry and being sexually attacked by the police if she complained to them. The Trial Division stated that women who are forced into marriages have had a basic human right violated.Footnote 124 It also referred to the possibility that persecution might be found in: (i) the claimant’s being forced into a marriage; (ii) spousal abuse; (iii) abuse by the father; and (iv) the reaction of the police.Footnote 125

In Ameri,Footnote 126 the claimant, a woman who disliked the Iranian dress code, urged that women were victims of the means by which the code was enforced. In response, the Trial Division said:

There was not evidence that her activities and commitments or beliefs would challenge the policies and laws of Iran, if she were to return, in a manner that might result in retributive action by the state that would constitute persecution. Her expressed fear was thus found not to be objectively based. I am not persuaded that the tribunal’s conclusion on this aspect of her claim was unreasonable.Footnote 127

In the same vein, or in a very similar vein, was the Pour case.Footnote 128 There it was argued that all women residents in a state who disagree with gender-specific discriminatory rules, such as the Iranian dress code for women, suffer from persecution. The Trial Division observed that this proposition went substantially beyond its decisions in NamitabarFootnote 129 and Fathi-Rad,Footnote 130 which concerned women who had engaged in a series of acts of defiance and had suffered punishments as a result.

This would appear to mean that a claim will fail if the claimant has not demonstrated, via past conduct, a readiness to assert some right and thereby express dissent (or if the claimant’s dissenting conduct has not resulted in mistreatment of the claimant). On the other hand, the Court has also considered it improper to effectively require that the claimant buy peace for herself by refraining from the exercise, or acquiescing in the denial, of one of her basic rights.Footnote 131

Regarding nexus, the Trial Division has said that a law which specifically targets the manner in which women dress may not properly be characterized as a law of general application which applies to all citizens.Footnote 132 A woman’s breach of a dress code may be perceived as a display of opposition to a theocratic regime.Footnote 133

A couple of cases have dealt with a woman’s breach of a dress code in a democratic, secular state. The context was a Turkish law that bans the wearing of headscarves in government places or buildings. In Sicak,Footnote 134 the Board rejected a claim based on religion and membership in a particular social group, namely, women wearing the headscarf in Turkey. The Board did not believe that the claimant was involved in any protest or that she was arrested or mistreated by the police, and found a lack of subjective fear and no persecution within the meaning of section 96 of IRPA. Without specifically referring to section 97 of IRPA the Board analyzed (and the Court appears to have agreed with the analysis) the objective basis of the claim. The Board noted that:

  1. 98% of the Turkish population is Muslim;
  2. the principle of secularism as it is applied in Turkey, was established 60 years ago;
  3. the law banning headscarves in public was upheld by the Turkish Constitutional Court and the European Human Rights Commission upheld this ruling;
  4. Turkey is a democracy with free elections;

and concluded that the claimant did not face persecution but prosecution for a violation of a law of general application.

The Court in KayaFootnote 135 was consistent with Sicak. In referring to the information contained in point (c) above, the Court noted that “[l]aws must be considered in their social context… “Mrs. Kaya is entitled to practice her religion in public, and to wear her Hejab in public.” The Court went on to say that Namitabar and Fathi-Rad dealt with Iranian women who were obliged by Iranian Law to wear the Chador and that “[I]t would be simple, but wrong, to say that the right of Iranian women not to wear the Chador and the right of Turkish women to wear the Hejab everywhere is a manifestation of the same fundamental right”.Footnote 136

Kaya was cited with approval in Aykut.Footnote 137 The Court noted, in obiter, that the Turkish law applies to all forms of religious dress or insignia including beards, cloaks, turbans, fez, caps, veils, and headscarves…. “In fact, there is evidence that, insofar as medical or university cards are concerned, the requirement for a photograph showing one’s full face is definitely applied to men wearing beards.” In Vidhani, the Trial Division found that the claimant belonged to a particular social group consisting of women forced into arranged marriages without their consent. It also referred to another alleged particular social group: “Asian women in Kenya”. The Court observed that Ward’s category (1) (groups defined by an innate or unchangeable characteristic) seemed applicable to the claimant’s circumstances.Footnote 138

In Ali, Shaysta-Ameer, the Refugee Division held that an adult claimant belonged to a group consisting of educated women. The Trial Division apparently considered her nine-year-old daughter to be a member of the same - or a similar - group.Footnote 139

In Annan, a Christian woman was faced with the possibility of being forcibly circumcised by “Moslem fanatics”, at the instigation of a Moslem man who wished to marry her. The claimant cited religion as the basis for her difficultiesFootnote 140 and the Court held that the Refugee Division had erred in rejecting her claim, but the Court did not discuss the nexus issue.

With respect to state protection, in Annan the Court found that the claimant could not count on state protection against forcible circumcision: one must consider not only the state’s ability to protect but also its willingness; and while the Ghanaian government had sometimes shown an intention to make female circumcision illegal, it had not yet done this, it was still tolerating the practice, and pious vows were not reassuring. The Court also noted that the claimant would be returning to Ghana alone, as she had been unable to locate her parents.Footnote 141

For additional guidance regarding claims by women who transgress conventions of their homelands, see Women Refugee Claimants Fearing Gender-Related Persecution.Footnote 142

9.3.8.2. Ahmadis from Pakistan

In Pakistan, legislation prohibits persons belonging to the Ahmadi religious group from engaging in certain activities (activities connected with the practice of their religion or with their religious identification), and establishes penalties for violations of the prohibitions. One of the statutes concerned is known as Ordinance XX.

Over the years, cases of Ahmadi claimants have been analyzed in different ways, as the following paragraphs show.

The Trial Division has said that mere existence of an oppressive law (Ordinance XX) which is enforced only sporadically does not by itself show that all members of the group targeted by the law (Ahmadis) have good grounds for fearing persecution.Footnote 143

In Ahmad,Footnote 144 the claimant had wished to argue before the Refugee Division that, given the nature of Ordinance XX, the simple existence of that law meant the claimant was persecuted. The Court acknowledged that it would be proper for the claimant to put forward such an argument (although, based on an evidentiary consideration, the Court also cast some doubt on the argument’s ability to succeed).

In Rehan,Footnote 145 the Refugee Division agreed with the following statement, taken from the judgment of the English Court of Appeal in Ahmad and others v. Secretary of State for the Home DepartmentFootnote 146 :

... It has been accepted by ... the Secretary of State, that the Ordinance, by itself, was well capable of being regarded as discrimination against all members of the Ahmadi sect; but in my judgment the proposition that it was by itself capable of making the appellants liable to persecution simply by virtue of being members of the sect is quite unsustainable. The only members of the sect potentially liable to persecution would be those who proposed to act in contravention of its provisions. Nothing in the Ordinance prevented persons from holding the belief of the sect, without engaging in any of the specified prohibited activities.

It was apparent to the Secretary of State ... that most Ahmadis live ordinary lives, untroubled by the Government despite the existence of the Ordinance. In my judgment he would have been fully entitled to assume that if the appellants, on returning to Pakistan, would intend to disobey the Ordinance and such intention constituted the reason, or a predominant reason, for their stated fear, they would have said so ...

It would appear that the Trial Division held that it was reasonably open to the Refugee Division to rely on this analysis, but stopped short of holding that the analysis was correct.Footnote 147 Furthermore, the Trial Division indicated that if the applicant had stated or demonstrated an intention to violate Ordinance XX, and if his past conduct had been consistent with this intention, he might very well have established a claim.Footnote 148

In Ahmed,Footnote 149 the Trial Division observed that “... the Federal Court of Canada has not yet clearly decided whether the discriminatory laws of Pakistan are indeed persecutory in relation to Ahmadis. It has preferred to adopt a case-by-case analysis of refugee claimants’ prospective fears of persecution.” (Footnote omitted.) In the Trial Division, the Minister conceded that the Refugee Division had erred in finding that the episodes of mistreatment experienced by the claimant did not constitute past persecution; however, the Trial Division upheld the further conclusion that there was no reasonable chance of persecution.

In Mehmood,Footnote 150 the Trial Division found that the Refugee Division had erred in restricting its analysis to whether or not the claimant was a registered or official member of the Ahmadi religion. On the basis of the evidence before it, the Refugee Division was required to determine whether or not the claimant had a well-founded fear of persecution arising from the perception that he was a member of the Lahori Ahmadi religion.

In a different Ahmad case,Footnote 151 the Court found that the PRRA officer did not err by concluding that in order to face persecution an Ahmadi needs to be in a position of leadership or has to publicly speak out about his faith. Also, that the officer did not err in concluding that blasphemy laws are rarely enforced by the Pakistani authorities.

On July 18, 2017, the IRB Chairperson identified as a Jurisprudential Guide (JG) a decision of the RAD dealing with an Ahmadi claimant.Footnote 152 The JG states that where a claimant is found to be an Ahmadi, the RPD is obligated to “consider whether the treatment of Ahmadis in Pakistan … constitutes persecution on the basis of religion”.

The JG finds that the RPD, in this and previous cases, wrongly applied a too-narrow definition of persecution. As stated in the JG:

[34] …The RPD focused on physical violence, and appeared to conclude that the Appellant will not be harmed or killed because of her religion. However, the RPD did not undertake a serious analysis of whether restrictions faced by Ahmadis, including the Appellant, amount to a denial of the fundamental right to freedom of religion.

[35] Freedom of religion includes the right to manifest one’s religion in practice, including in public, a freedom not enjoyed by Ahmadis in Pakistan. They face measures which lead to consequences of a substantially prejudicial nature, including the prohibition against describing themselves as Muslims, difficulty in applying for documents and for entrance to educational institutions, interference in mosque attendance and prayer, and a prohibition on proselytizing. Even if Ahmadis faced no threat of physical harm – and the evidence indicates that there is indeed such danger – there is considerable evidence to support the argument that they experience religious persecution.

[36] The RAD finds that the Appellant faces serious restrictions on the practice of her religion. She need not establish that she will be physically harmed. The evidence shows that she may not describe herself a Muslim; that she must deny her faith – choosing to either be Muslim or Ahmadi, but not both - to obtain documents or gain admission to government institutions; that she wishes to speak publicly of her faith, but is prohibited from doing so; that her prayers are deliberately interfered with by hate-spewing loudspeakers; that she could not attend a particular mosque because of the threat of violence; and that she risks prosecution under the blasphemy laws.

[38] It is not for the RPD, or the RAD, to determine whether “every Ahmadi would be a refugee,” though it is not uncommon for an entire group to be considered at risk of persecution in a particular country due to their profile, whether that be for reasons of sexual orientation, ethnicity, or religion. However, in considering claims such as that of the Appellant, the RPD is obligated to correctly apply the definition of religious persecution to the evidence, and to avoid restricting that definition to physical harm.

The RAD decision then concludes that as the State is one of the leading agents of persecution and the persecutory law and measures exist throughout the country, the Appellant could not expect adequate state protection or avail herself of an internal flight alternative.

9.4. Indirect persecution and family unity

The concept of “indirect persecution” was described by Mr. Justice Jerome in BhattiFootnote 153 as follows:

The concept of indirect persecution is premised on the assumption that family members are likely to suffer great harm when their close relatives are persecuted. This harm may manifest itself in many ways ranging from the loss of the victim’s economic and social support to the psychological trauma associated with witnessing the suffering of loved ones.

The theory is based on a recognition of the broader harm caused by persecutory acts. By recognizing that family members of persecuted persons may themselves be victims of persecution, the theory allows the granting of status to those who might otherwise be unable to individually prove a well-founded fear of persecution.

However, in Pour-Shariati, Mr. Justice Rothstein said that “the Bhatti approach to indirect persecution unjustifiably broadens the Convention refugee basis for admission to Canada, to include persons who do not have a well-founded fear of persecution in their own right.”Footnote 154 Furthermore, in Casetellanos,Footnote 155 Mr. Justice Nadon noted that

... there must be a very clear link between a refugee claimant and one of the five prescribed grounds in the Convention refugee definition. However, the principal [sic] of indirect persecution does not require the claimant to have a well-founded fear of persecution or to be persecuted; indirect persecution arises out of the fact that the claimant is the unwilling spectator of some incidents of violence targeted against other members of the family or the social group to which he or she belongs, ... Jerome A.C.J. held [in Bhatti] that the scope of the principle was such that it could extend beyond traditional grounds of persecution to support, or economic considerations ... such an extension of the so-called principle of indirect persecution is unacceptable as lack of economic, monetary or emotional support do not constitute a ground for being found a Convention refugee

Nadon J. went on to hold that “indirect persecution does not constitute persecution within the meaning of the definition of Convention refugee.”Footnote 156

The Court of Appeal dismissed the appeal in Pour-Shariati,Footnote 157 and in so doing it squarely rejected the concept of indirect persecution that was articulated in Bhatti:

We accordingly overrule Bhatti’s recognition of the concept of indirect persecution as a principle of our refugee law. In the words of Nadon, J. in Casetellanos ..., “since indirect persecution does not constitute persecution within the meaning of Convention refugee, a claim based on it should not be allowed.” It seems to us that the concept of indirect persecution goes directly against the decision of this Court in Rizkallah ..., where it was held that there had to be a personal nexus between the claimant and the alleged persecution on one of the Convention refugee grounds. One of these grounds is, of course, a “membership in a particular social group,” a ground which allows for family concerns in on [sic] appropriate case.Footnote 158

Following Pour-Shariati, Muldoon, J. rejected the concept of indirect persecution in CetinkayaFootnote 159 and held, on the facts in that case, that there had to be a nexus between the claimant and the general situation in his country, Turkey, regarding members of the PKK. He stated as follows:

[25] ... While certain members of the PKK may face persecution, it is for the [claimant] to demonstrate that he falls within that class of individuals who may face persecution. It is not sufficient to adduce evidence that members of the PKK are being persecuted without providing the necessary link between the [claimant's] activities and the persecution feared. Even in the situation of a perceived political opinion, a link must be made between the applicant and the political opinion which may be attributed to him.

A claim based on indirect persecution may be distinguished from one based on the principle of “family unity”.Footnote 160 That principle is discussed in paragraphs 182 to 185 of the UNHCR Handbook. The family-unity claimant does not attempt to satisfy the definition’s persecution requirement by pointing to side-effects. Instead, he or she takes the position that if the directly-attacked individual meets all criteria of the Convention refugee definition, a family member may be recognized as a Convention refugee regardless of whether the family member meets the definition’s criteria (i.e., has a well-founded fear of persecution). This is a position which has been rejected as being without foundation in Canadian law.Footnote 161

While “family unity” is not a concept recognized by Canadian refugee law,Footnote 162 ”the family” as a “particular social group” is based on “evidence of persecution of the family as a social group and not on the principle of family unity. It requires evidence that by reason of that membership in a family, individuals may have a well-founded fear of persecution in the future if they are forced to return to their country of origin.”Footnote 163

Table of cases

  1. Abbes, Lotfi v. M.C.I. (F.C., no. IMM-2989-06), Tremblay-Lamer, February 1, 2007; 2007 FC 112
  2. Abdulle, Sadia Mohamed v. M.E.I. (F.C.T.D., no. A-1440-92), Nadon, September 16, 1993
  3. Abu El Hof, Nimber v. M.C.I. (F.C., no. IMM-1494-05), von Finckenstein, November 8, 2005; 2005 FC 1515
  4. Agranovski, Vladislav v. M.C.I. (F.C.T.D., no. IMM-2709-95), Tremblay-Lamer, July 3, 1996
  5. Ahani, Roozbeh v. M.C.I. (F.C.T.D., no. IMM-4985-93), MacKay, January 4, 1995
  6. Ahmad and others v. Secretary of State for the Home Department [1990] Imm. A.R. 61 (Eng.C.A.)
  7. Ahmad, Masroor v. M.E.I. (F.C.T.D., no. A-555-92), Rothstein, June 16, 1994
  8. Ahmad, Tahir v. M.C.I. (F.C., no. IMM-3148-11), Scott, January 24, 2012; 2012 FC 89
  9. Ahmed, Irfan v. M.C.I. (F.C.T.D., no. IMM-2725-96), Joyal, July 4, 1997
  10. Alfaro, Victor Labrador v. M.C.I. (F.C., no. IMM-7390-10), Rennie, July 22, 2011; 2011 FC 912
  11. Alfred, Rayappu v. M.E.I. (F.C.T.D., no. IMM-1466-93), MacKay, April 7, 1994
  12. Ali, Farhan Omar v. M.C.I. (F.C.T.D., no. A-1652-92), McKeown, June 26, 1995
  13. Ali, Shaysta-Ameer v. M.C.I. (F.C.A., no. A-772-96), Décary, Stone, Strayer, January 12, 1999
  14. Ali, Shaysta-Ameer v. M.C.I. (F.C.T.D., no. IMM-3404-95), McKeown, October 30, 1996. Reported: Ali v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 34 (F.C.T.D.)
  15. Al-Maisri, Mohammed v. M.E.I. (F.C.A., no. A-493-92), Stone, Robertson, McDonald, April 28, 1995
  16. Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996
  17. Altun, Ali v. M.C.I. (F.C., no. IMM-5854-11), Shore, August 29, 2012; 2012 FC 1034
  18. Ameri, Ghulamali v. M.C.I. (F.C.T.D., no. IMM-3745-94), MacKay, January 30, 1996
  19. Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.)
  20. Antonio, Pacato Joao v. M.E.I. (F.C.T.D., no. IMM-1072-93), Nadon, September 27, 1994
  21. Ates, Erkan v. M.C.I. (F.C., no. IMM-150-04), Harrington, September 27, 2004; 2004 FC 1316
  22. Ates, Erkan v. M.C.I. (F.C.A., no. A-592-04), Linden, Nadon, Sharlow, October 5, 2005; 2005 FCA 322
  23. Aykut, Ibrahim v. M.C.I. (F.C., no. IMM-5310-02), Gauthier, March 26, 2004
  24. Balasingham, Satchithananthan v. S.S.C. (F.C.T.D., no. IMM-2469-94), Rothstein, February 17, 1995
  25. Bhatti, Naushaba v. S.S.C. (F.C.T.D., no. A-89-93), Jerome, September 14, 1993. Reported: Bhatti v. Canada (Secretary of State). (1994), 25 Imm. L.R. (2d) 275 (F.C.T.D.)
  26. Brar, Jaskaran Singh v. M.E.I. (F.C.T.D., no. IMM-292-93), Rouleau, September 8, 1993
  27. Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (T.D.)
  28. Castaneda, Robert Martinez v. M.E.I. (F.C.T.D., no. A-805-92), Noël, October 19, 1993 (Cuba)
  29. Cetinkaya, Lukman v. M.C.I. (F.C.T.D., no. IMM-2559-97), Muldoon, July 31, 1998
  30. Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675, 20 Imm. L.R. (2d) 181 (C.A.)
  31. Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593
  32. Chavez Carrillo, Diego Antonio v. M.C.I. (F.C., no. IMM-3170-12), Noël, October 22, 2012; 2012 FC 1228
  33. Chen, Li Xing v. M.C.I. (F.C., no. IMM-8158-13), Rennie, February 19, 2015; 2015 FC 225
  34. Cheng v. M.C.I. (F.C.T.D., no. IMM-6589-00), Pinard, March 1, 2002; 2002 FCT 211
  35. Cheng, Kin Ping v. M.C.I. (F.C.T.D., no. IMM-176-97), Tremblay-Lamer, October 8, 1997
  36. Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.)
  37. Chow, Wing Sheung v. M.C.I. (F.C.T.D., no. A-1476-92), McKeown, March 26, 1996
  38. Chowdhury, Hasan Mahmud v. M.C.I. (F.C., no. IMM-7284-05), Mosley, March 4, 2008; 2008 FC 290
  39. Ciric v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 65 (T.D.)
  40. Colby, Justin v. M.C.I. (F.C., no. IMM-559-07), Beaudry, June 26, 2008; 2008 FC 805
  41. Daghighi, Malek v. M.C.I. (F.C.T.D., no. A-64-93), Reed, November 16, 1995
  42. Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998
  43. Del Busto Ezeta, Octavio Alberto v. M.C.I. (F.C.T.D., no. IMM-2021-95), Cullen, February 15, 1996
  44. Del Carmen Marrero Nodarse, Maria v. M.C.I. (F.C., no. IMM-1706-10), Near, March 10, 2011; 2011 FC 289
  45. Denis, Juan Carlos Olivera v. S.S.C. (F.C.T.D., no. IMM-4920-93), Nadon, February 18, 1994
  46. Diab, Wadih Boutros v. M.E.I. (F.C.A., no. A-688-91), Isaac, Marceau, McDonald, August 24, 1994
  47. Dombele, Adelina v. M.C.I. (F.C.T.D., no. IMM-988-02), Gauthier, February 26, 2003
  48. Donboli, Khosrow v M.C.I. (F.C., no. IMM-3013-02), Dawson, July 16, 2003; 2003 FC 883
  49. Drozdov, Natalia v. M.C.I. (F.C.T.D., no. IMM-94-94), Joyal, January 9, 1995
  50. El Achkar, Nasri Ibrahim v. M.C.I. (F.C., no. IMM-5768-12), Strickland, May 6, 2013; 2013 FC 472
  51. El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994
  52. Fathi-Rad, Farideh v. S.S.C. (F.C.T.D., no. IMM-2438-93), McGillis, April 13, 1994
  53. Fi v. Canada (Minister of Citizenship and Immigration), [2007] 3 F.C.R. 400; 2006 FC 1125
  54. Fofanah, Isha v. M.C.I. (F.C.T.D., no. IMM-4795-97), Muldoon, July 16, 1998
  55. Frid, Mickael v. M.C.I. (F.C.T.D., no. IMM-6694-93), Rothstein, December 15, 1994
  56. Garcia, Marvin Balmory Salvador v. S.S.C. (F.C.T.D., no. IMM-2521-93), Pinard, February 4, 1994
  57. Gonzalez Salcedo, Maykel v. M.C.I. (F.C., no. IMM-5975-13), Phelan, August 25, 2014; 2014 FC 822
  58. Graider, Emil v. M.C.I. (F.C., no. IMM-2894-12), O’Reilly, April 29, 2013; 2013 FC 435
  59. Gribovskaia, Elena v. M.C.I. (F.C., no. IMM-5848-04), Rouleau, July 11, 2005; 2005 FC 956
  60. Gwanzura, Unity v. M.C.I. (F.C.T.D., no. IMM-1907-96), Heald, July 10, 1997
  61. Haoua, Mehdi v. M.C.I. (F.C.T.D., no. IMM-698-99), Nadon, February 21, 2000
  62. Hashi, Haweya Abdinur v. M.C.I. (F.C.T.D., no. IMM-2597-96), Muldoon, July 31, 1997
  63. Hashmat, Suhil v. M.C.I. (F.C.T.D., no. IMM-2331-96), Teitelbaum, May 9, 1997
  64. Hassan, Jamila Mahdi v. M.E.I. (F.C.A., no. A-757-91), Isaac, Marceau, McDonald, August 25, 1994. Reported: Hassan v. Canada (Minister of Employment and Immigration) (1994), 174 N.R. 74 (F.C.A.)
  65. Hazarat, Ghulam v. S.S.C. (F.C.T.D., no. IMM-5496-93), MacKay, November 25, 1994
  66. Hinzman v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 561; 2006 FC 420
  67. Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; (A-185-06), Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171
  68. Hinzman, Jeremy, RPD TA4-01429, B. Goodman, March 16, 2005
  69. Huang, Wei Yao v. M.C.I. (F.C., no. IMM-10448-12), Simpson, October 23, 2013; 2013 FC 1074
  70. Hughey, Brandon David v. M.C.I. (F.C., no. IMM-5571-05), Mactavish, March 31, 2006; 2006 FC 421
  71. Hughey, Brandon David, RPD TA4-05781, B. Goodman, August 16, 2005
  72. Ielovski, Vladimir v. M.C.I. (F.C., no. IMM-3520-07), de Montigny, June 13, 2008; 2008 FC 739
  73. Isa, Sharmarka Ahmed v. S.S.C. (F.C.T.D., no. IMM-1760-94), Reed, February 16, 1995
  74. Jeyarajah, Vijayamalini v. M.C.I. (F.C.T.D., no. IMM-2473-98), Denault, March 17, 1999
  75. John, Lindyann v. M.C.I. (F.C.T.D., no. IMM-2833-95), Simpson, April 24, 1996 (reasons signed July 29, 1996)
  76. Joseph, Christy Shanthakumar v. S.S.C. (F.C.T.D., no. IMM-7503-93), MacKay, November 18, 1994
  77. Kaler, Minder Singh v. M.E.I. (F.C.T.D., no. IMM-794-93), Cullen, February 3, 1994
  78. Kaprolova, Elena v. M.C.I. (F.C.T.D., no. IMM-388-97), Teitelbaum, September 25, 1997
  79. Karaguduk, Abdulgafur v. M.C.I. (F.C., no. IMM-2695-03), Henegan, July 5, 2004
  80. Kaya, Bedirhan Mustafa v. M.C.I. (F.C., no. IMM-5565-03), Harrington, January 14, 2004
  81. Kazkan, Shahrokh Saeedi v. M.C.I. (F.C.T.D., no. IMM-1313-96), Rothstein, March 20, 1997
  82. Key, Joshua Adam v. M.C.I. (F.C., no. IMM-5923-06), Barnes, July 4, 2008; 2008 FC 838
  83. Khalib, Amina Ahmed v. M.E.I. (F.C.T.D., no. A-656-92), MacKay, March 30, 1994. Reported: Khalib v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 149 (F.C.T.D.)
  84. Kirichenko, Andrei v. M.C.I. (F.C., no. IMM-688-10), Russell, January 6, 2011; 2011 FC 12
  85. Kogan, Meri v. M.C.I. (F.C.T.D., no. IMM-7282-93), Noël, June 5, 1995
  86. Kularatnam, Suhitha v. M.C.I. (F.C., no. IMM-3530-03), Phelan, August 12, 2004; 2004
  87. Kwong, Kam Wang (Kwong, Kum Wun) v. M.C.I. (F.C.T.D., no. IMM-3464-94), Cullen, May 1, 1995
  88. Lai, Quang v. M.E.I. (F.C.T.D., no. IMM-307-93), McKeown, May 20, 1994
  89. Landry, Dale Gene v. M.C.I. (F.C., no. IMM-5148-08), Harrington, June 8, 2009; 2009 FC 594
  90. Lau, Yei Wah v. M.C.I. (F.C., no. IMM-2329-07), Phelan, April 17, 2008; 2008 FC 499
  91. Lebedev, Vadim v. M.C.I. (F.C., no. IMM-2208-06), de Montigny, July 9, 2007; 2007 FC 728
  92. Li, Mei Yun v. M.C.I. (F.C., no. IMM-3375-10), Near, May 25, 2011; 2011 FC 610
  93. Lin v. Canada (Minister of Employment and immigration), (1993), 66 FTR 207, 24 Imm LR (2d) 208 (FCTD)
  94. Lin, Qu Liang v. M.E.I. (F.C.A., no. 93-A-142), Rouleau, July 20, 1993. Reported: Lin v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 208 (F.C.T.D.)
  95. Liu, Ying Yang v. M.C.I. (F.C.T.D., no. IMM-4316-94), Reed, May 16, 1995
  96. Losolohoh, James Salah v. M.E.I. (F.C.T.D., no. IMM-2324-94), Wetston, December 13, 1994
  97. Lowell, Matthew David v. M.C.I. (F.C., no. IMM-4599-08), Zinn, June 22, 2009; 2009 FC 649
  98. M.S. v. M.C.I. (F.C.T.D., no. A-132-91), McKeown, August 27, 1996
  99. Mahalingam, Paramalingam v. S.G.C. (F.C.T.D., no. A-79-93), Joyal, November 2, 1993
  100. Manihani, Saravjit Singh v. M.E.I. (F.C.T.D., no. A-753-92), Noël, September 3, 1993
  101. Mehmood, Nasir v. M.C.I. (F.C.T.D., no. IMM-2256-97), McGillis, May 14, 1998
  102. Mohamed, Abd Almoula Mohamed v. M.E.I. (F.C.A., no. A-26-92), Strayer, MacGuigan, Robertson, November 7, 1994
  103. Mohebbi, Hadi v. M.C.I. (F.C., no. IMM-3755-13), Harrington, February 26, 2014; 2014 FC 182
  104. Moskvitchev, Vitalli v. M.C.I. (F.C.T.D., no. IMM-70-95), Dubé, December 21, 1995
  105. Moslim, Mahdi Fraih v. S.S.C. (F.C.T.D., no. 93-A-166), McGillis, February 14, 1994
  106. 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.)
  107. Murugiah, Rahjendran v. M.E.I. (F.C.T.D., no. 92-A-6788), Noël, May 18, 1993
  108. Musial v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 290 (C.A.)
  109. Naguleswaran, Pathmasilosini (Naguleswaran) v. M.C.I. (F.C.T.D., no. IMM-1116-94), Muldoon, April 19, 1995
  110. Namitabar v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 42 (T.D.)
  111. Namitabar: Canada (Secretary of State) v. Namitabar (F.C.A., no. A-709-93), Décary, Hugessen, Desjardins, October 28, 1996
  112. Ndegwa, Joshua Kamau v. M.C.I. (F.C., no. IMM-6058-05), Mosley, July 5, 2006; 2006 FC 847
  113. Nejad, Saeed Javidani-Tabriz v. M.C.I. (F.C.T.D., no. IMM-4624-93), Richard, November 16, 1994
  114. Nina, Razvan v. M.C.I. (F.C.T.D., no. A-725-92), Cullen, November 24, 1994
  115. Omar, Suleiman Ahmed v. M.C.I. (F.C.T.D., no. A-1615-92), McKeown, February 7, 1996
  116. Pacificador, Rodolfo Guerrero v. M.C.I., no. IMM-4057-02), Heneghan, December 12, 2003; 2003 FC 1462
  117. Papou, Bhatia v. M.E.I. (F.C.T.D., no. A-1040-92), Rouleau, August 15, 1994
  118. Perez, Sofia Sofi v. M.C.I. (F.C., no. IMM-6504-09), Snider, August 23, 2010; 2010 FC 833
  119. Pernas Hernandez, Euler v. M.C.I. (F.C., no. IMM-2072-08), Phelan, March 4, 2009; 2009 FC 229
  120. Popov, Leonid Anatolievich v. M.E.I. (F.C.T.D., no. IMM-2567-93), Reed, April 11, 1994; Reported: Popov v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 242 (F.C.T.D.)
  121. Pour, Malek Mohammad Nagmeh Abbas v. M.C.I. (F.C.T.D., no. IMM-3650-95), Gibson, June 6, 1996
  122. Pour-Shariati v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 767 (T.D.)
  123. Pour-Shariati, Dolat v. M.E.I. (F.C.A., no. A-721-94), MacGuigan, Robertson, McDonald, June 10, 1997. Reported: Pour-Shariati v. Canada (Minister of Employment and Immigration) (1997), 39 Imm. L.R. (2d) 103 (F.C.A.)
  124. R.S. v. M.C.I. (F.C., no. IMM-6056-11), Gleason, July 6, 2012; 2012 FC 860
  125. Rabbani, Farideh v. M.C.I. (F.C.T.D., no. IMM-2032-96), McGillis, June 3, 1997
  126. RAD TB0-01837, Bosveld, May 8, 2017
  127. Rafieyan, Majid v. M.C.I. (F.C., no. IMM-4221-06), Tremblay-Lamer, July 6, 2007; 2007 FC 727
  128. Rehan, Muhammad Arif v. M.C.I. (F.C.T.D., no. A-580-92), Gibson, October 18, 1996
  129. Rivera, Kimberly Elaine v. M.C.I. (F.C., no. IMM-215-09), Russell, August 10, 2009; 2009 FC 814
  130. Rizkallah, Bader Fouad v. M.E.I. (F.C.A., no. A-606-90), Marceau, MacGuigan, Desjardins, May 6, 1992. Reported: Rizkallah v. Canada (Minister of Employment and Immigration) (1992), 156 N.R. 1 (F.C.A.)
  131. Rodriguez-Hernandez, Severino Carlos v. S.S.C. (F.C.T.D., no. A-19-93), Wetston, January 10, 1994
  132. Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.)
  133. Satiacum: M.E.I. v. Satiacum, Robert (F.C.A., no. A-554-87), Urie, Mahoney, MacGuigan, June 16, 1989. Reported: Satiacum: Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.)
  134. Serrano, Roberto Flores v. M.C.I. (F.C.T.D., no. IMM-2787-98), Sharlow, April 27, 1999
  135. Shaikh, Sarwar v. M.C.I. (F.C.T.D., no. IMM-2489-98), Tremblay-Lamer, March 5, 1999
  136. Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003
  137. Siad, Dahabo Jama v. M.E.I. (F.C.T.D., no. 92-A-6820), Rothstein, April 13, 1993. Reported: Siad v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 6 (F.C.T.D.)
  138. Sicak, Bucak v. M.C.I. (F.C., no. IMM-4699-02), Gauthier, December 11, 2003
  139. Singh, Tejinder Pal v. M.C.I. (F.C.T.D., no. IMM-5294-97), Muldoon, December 23, 1997
  140. Sladoljev, Dejan v. M.E.I. (F.C.T.D., no. IMM-3160-94), Cullen, July 4, 1995
  141. Smith, Bethany Lanae v. M.C.I. (F.C., no. IMM-5699-11), Mosley, November 2, 2012; 2012 FC 1283
  142. Smith, Bethany Lanae v. M.C.I. (F.C., no. IMM-677-09), de Montigny, November 20, 2009; 2009 FC 1194
  143. Soma, Ester Elvira v. M.C.I. (F.C.T.D., no. A-1129-92), Richard, November 15, 1994
  144. Sounitsky, Alexander v. M.C.I. (F.C., no. IMM-2184-07), Mosley, March 14, 2008; 2008 FC 345
  145. Sran, Gurjeet Singh v. M.C.I. (F.C.T.D., no. IMM-3195-96), McKeown, July 29, 1997
  146. Suarez Rosales, Reinaldo v. M.C.I. (F.C., no. IMM-5038-11), Phelan, March 19, 2012; 2012 FC 323
  147. Subramaniam, Suresh v. M.C.I. (F.C., no. IMM-5129-04), O’Reilly, May 12, 2005; 2005 FC 684
  148. Talman, Natalia v. S.G.C. (F.C.T.D., no. IMM-5874-93), Joyal, January 11, 1995
  149. Tewelde, Baruch v. M.C.I. (F.C., no. IMM-81-06), Gauthier, October 24, 2007; 2007 FC 1103
  150. Thathaal, Sabir Hussain v. S.S.C. (F.C.T.D., no. A-1644-92), McKeown, December 15, 1993
  151. Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.)
  152. Tindungan, Jules Guiniling v. M.C.I. (F.C., no. IMM-5069-12), Russell, February 1, 2013; 2013 FC 115
  153. Toledo, Ruben Fernando San Martin v. M.E.I. (F.C.A., no. A-205-91), Hugessen, Desjardins, Décary, March 1, 1993
  154. Tomov, Nikolay Harabam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005; 2005 FC 1527
  155. Torres, Alejandro Rodriguez v. M.C.I. (F.C.T.D., no. IMM-503-94), Simpson, February 1, 1995
  156. Treskiba, Anatoli Benilov v. M.C.I. (F.C., no. IMM-1999-08), Pinard, January 13, 2009; 2009 FC 15
  157. Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.)
  158. Vassey, Christopher Marco v. M.C.I. (F.C., no. IMM-5834-10), Scott, July 18, 2011; 2011 FC 899
  159. Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60, (T.D.)
  160. Volkovitsky, Olga v. M.C.I. (F.C., no. IMM-567-09), Shore, September 10, 2009; 2009 FC 893
  161. Walcott, Dean William v. M.C.I. (F.C., no. IMM-5527-10; F.C. no. IMM-5528-08), de Montigny, April 5, 2011; 2011 FC 415
  162. Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689
  163. Wickramasinghe v. M.C.I. (F.C.T.D., no. IMM-2489-01), Martineau, April 26, 2002
  164. Xiao, Yan Liu v. M.C.I. (F.C.T.D., no. IMM-712-15), Harrington, October 21, 2015; 2015 FC 1193
  165. Ye: M.C.I. v. Ye, Yanxia (F.C., no. IMM-8797-12), Pinard, June 13, 2013; 2013 FC 634
  166. Zheng v. M.C.I. (F.C.T.D., no. IMM-2415-01), Martineau, April 19, 2002; 2002 FCT 448
  167. Zheng, Jin Xia v. M.C.I. (F.C., no. IMM-3121-08), Barnes March 30, 2009; 2009 FC 327
  168. Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.)

Notes

Note 1

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

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Note 2

Salibian, supra, footnote1, per Décary J.A.

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Note 3

Salibian, supra, footnote 1, per Décary, J.A.; Hathaway, James C., The Law of Refugee Status, (Toronto: Butterworths, 1991), page 97.

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Note 4

Rizkallah, Bader Fouad v. M.E.I. (F.C.A., no. A-606-90), Marceau, MacGuigan, Desjardins, May 6, 1992.  Reported:  Rizkallah v. Canada (Minister of Employment and Immigration) (1992), 156 N.R. 1 (F.C.A.).

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Note 5

Rizkallah, supra, footnote 4, per MacGuigan J.A.

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Note 6

Abdulle, Sadia Mohamed v. M.E.I. (F.C.T.D., no. A-1440-92), Nadon, September 16, 1993.  Hassan, Jamila Mahdi v. M.E.I. (F.C.A., no. A-757-91), Isaac, Marceau, McDonald, August 25, 1994.  Reported:  Hassan v. Canada (Minister of Employment and Immigration) (1994), 174 N.R. 74 (F.C.A.). A claimant’s status as a Tamil male from the north of Sri Lanka is simply not enough, on its own, to establish a well-founded fear of persecution: Subramaniam, Suresh v. M.C.I. (F.C., no. IMM-5129-04), O’Reilly, May 12, 2005; 2005 FC 684 at paragraph 7.

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Note 7

Guidelines on Civilian Non-Combatants Fearing Persecution in Civil War Situations, issued by the IRB Chairperson pursuant to section 65(3) of the Immigration Act, on March 7, 1996, as continued in effect by the Chairperson on June 28, 2002 under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.

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Note 8

Perhaps the most clear-cut adopting of a comparative approach is found in Isa, Sharmarka Ahmed v. S.S.C. (F.C.T.D., no. IMM-1760-94), Reed, February 16, 1995.

Many if not most civil war situations are racially or ethnically based.  If racially motivated attacks in civil war circumstances constitute a ground for convention refugee status, then, all individuals on either side of the conflict will qualify.  The passages quoted by the Board from [paragraph 164 of] the United Nations Handbook … indicates that this is not the purpose of the 1951 Convention.

The Isa decision was cited approvingly in Ali, Farhan Omar v. M.C.I. (F.C.T.D., no. A-1652-92), McKeown, June 26, 1995. Mr. Justice McKeown did not refer to any particular passage in Isa.

In Ali, Shaysta-Ameer v. M.C.I. (F.C.T.D., no. IMM-3404-95), McKeown, October 30, 1996.  Reported:  Ali v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 34 (F.C.T.D.), the Trial Division certified the following question: “Are refugee claimants excluded from the definition of Convention refugee if all groups in their country, including the group of which they are members, are both victims and perpetrators of human rights violations in the context of civil war?” See, infra, footnote 13.

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Note 9

Requiring a worse predicament might mean any one of several things.  To succeed, a claimant might have to establish: (i) that the claimant’s level of risk is greater than the risk level of persons in other groups, or (ii) that the claimant’s risk level is greater than the risk level of other persons in the claimant’s own group; or (iii) that the claimant is at risk of suffering harm greater than that which threatens others.

Regarding (i), see Siad, Dahabo Jama v. M.E.I. (F.C.T.D., no. 92-A-6820), Rothstein, April 13, 1993Reported: Siad v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 6 (F.C.T.D.); and Omar, Suleiman Ahmed v. M.C.I. (F.C.T.D., no. A-1615-92), McKeown, February 7, 1996. Regarding (ii), see Hassan, supra, footnote 6.

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Note 10

The claimant’s group must be one which is definable in terms of a Convention characteristic.

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Note 11

Salibian, supra, footnote 1, points out that there may be a nexus in a civil war context.  Rizkallah, supra, footnote 4, may be seen as adding to Salibian little more than a reminder that nexus may also be absent in such a situation. Simple political instability does not make for a well-founded fear of persecution: Del Busto Ezeta, Octavio Alberto v. M.C.I. (F.C.T.D., no. IMM-2021-95), Cullen, February 15, 1996, wherethe claimant’s difficulties were a result of the unsettled and dangerous political climate in Peru, rather than being linked to a Convention ground. In Khalib, Amina Ahmed v. M.E.I. (F.C.T.D., no. A-656-92), MacKay, March 30, 1994.  Reported:  Khalib v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 149 (F.C.T.D.),the claimants’ home area, in which the claimants’ Issaq clan predominated, had been sown with mines by the former Somali government, allegedly with the intention of harming Issaqs.  Many mines remained, and the claimants feared injury.  The Refugee Division held that the danger was one faced indiscriminately by all people in the area; and in upholding the decision, the Court noted that while Issaqs may have been the majority, the danger was nevertheless faced by all.

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Note 12

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, per La Forest J., “The examination of the circumstances should be approached from the perspective of the persecutor, since that is determinative in inciting the persecution.”

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Note 13

Ali, Shaysta-Ameer v. M.C.I.  (F.C.A., no. A-772-96), Décary, Stone, Strayer, January 12, 1999.

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Note 14

Supra, footnote 7.

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Note 15

Fi v. Canada (Minister of Citizenship and Immigration), [2007] 3 F.C.R. 400; 2006 FC 1125 at paragraph 19.

Return to note 15 referrer

Note 16

Fathi-Rad, Farideh v. S.S.C. (F.C.T.D., no. IMM-2438-93), McGillis, April 13, 1994.  See also Namitabar v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 42 (T.D.).  Compare Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996. In Canada (Secretary of State) v. Namitabar (F.C.A., no. A-709-93), Décary, Hugessen, Desjardins, October 28, 1996, the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so..."

Return to note 16 referrer

Note 17

Musial v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 290 (C.A.).  Speaking for the majority, Pratte J. said:

A person who is punished for having violated an ordinary law of general application, is punished for the offence he has committed, not for the political opinions that may have induced him to commit it. … [A] person who has violated the laws of his country of origin by evading ordinary military service, and who merely fears prosecution and punishment for that offence in accordance with those laws, cannot be said to fear persecution for his political opinions even if he was prompted to commit that offence by his political beliefs.

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Note 18

Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.).

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Note 19

Zolfagharkhani, supra, footnote 18

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Note 20

Zolfagharkhani, supra, footnote 18. These propositions have been cited with regularity in subsequent decisions dealing with conscientious objection to military service. See section 9.3.6., infra.

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Note 21

In Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), Linden J.A. said that the Refugee Division “wrongly required that a ‘persecutory intent’ be present, whereas a ‘persecutory effect’ suffices.”

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Note 22

Compare Antonio, Pacato Joao v. M.E.I. (F.C.T.D., no. IMM-1072-93), Nadon, September 27, 1994 (re: treason, espionage and sabotage).

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Note 23

In Daghighi, Malek v. M.C.I. (F.C.T.D., no. A-64-93), Reed, November 16, 1995, the Refugee Division had held that the Iranian claimant had simply run afoul of “laws or a policy of general application founded on fundamentalist principles of Islamic law”.  But evidence indicated that the claimant had incurred the authorities’ displeasure for Western tendencies and unacceptable religious views, and that he had been obliged to undergo religious instruction.  The Court rejected the conclusion that his difficulties were not related to a Convention ground.

In Chan (F.C.A.), Mr. Justice Heald ruled that punishment for breach of a government policy is not punishment for political opinion if the breach will be perceived by the authorities not as a challenge to their authority but only as a breach of a law:  Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (C.A.).

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Note 24

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

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Note 25

Cheung, supra, footnote 21, per Linden J.A. 

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Note 26

Chan (S.C.C.), supra, footnote 24, per La Forest J. (dissenting).

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Note 27

Chan (S.C.C.), supra, footnote 24 per La Forest J. (dissenting).

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Note 28

Namitabar (T.D.), supra, footnote 16; Rodriguez-Hernandez, Severino Carlos v. S.S.C. (F.C.T.D., no. A-19-93), Wetston, January 10, 1994.

Return to note 28 referrer

Note 29

Antonio, supra, footnote 22.  See also Singh, Tejinder Pal v. M.C.I. (F.C.T.D., no. IMM-5294-97), Muldoon, December 23, 1997 (supplementary reasons), at paragraphs 9-13.

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Note 30

In Cheung, supra, footnote 21, the Court noted that while China’s one-child policy is generally applicable, the forced sterilization of women who have had a child is not a law of general application.  See also Lin, Qu Liang v. M.E.I. (F.C.A., no. 93-A-142), Rouleau, July 20, 1993.  Reported:  Lin v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 208 (F.C.T.D.), where the Court stated that “economic sanctions, as a means to enforce compliance with the law, does [sic] not amount to persecution”. The Court followed this reasoning in Li, Mei Yun v. M.C.I. (F.C., no. IMM-3375-10), Near, May 25, 2011; 2011 FC 610.  See also Chan (S.C.C.), supra, footnote 24, where Major J., citing Cheung, noted that “forced sterilization is not a law of general application but rather an enforcement measure used by some local authorities with, at most, the tacit acceptance of the central government.  Thus, the reasonableness of a fear of persecution depends, inter alia, on the practices of the relevant local authority”.

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Note 31

 Regarding extra-judicial punishment, see Cheung, supra, footnote 21, at 323; and Moslim, Mahdi Fraih v. S.S.C. (F.C.T.D., no. 93-A-166), McGillis, February 14, 1994.  Regarding lack of due process, see Namitabar, supra, footnote 16.

An enactment may itself allow for denial of due process, thereby increasing the chances that persecution will occur; see, for example, Balasingham, Satchithananthan v. S.S.C. (F.C.T.D., no. IMM-2469-94), Rothstein, February 17, 1995.

In M.E.I. v. Satiacum, Robert (F.C.A., no. A-554-87), Urie, Mahoney, MacGuigan, June 16, 1989.  Reported:  Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.), the Court held that the claimant’s fear of extra-judicial punishment, which was based partly on alleged irregularities in prosecution, was not well founded.  Furthermore, the Court stated that “... Canadian tribunals have to assume a fair and independent judicial process in the foreign country.  In the case of a non-democratic State contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching ... [some key element of the judicial system].”  In Chowdhury, Hasan Mahmud v. M.C.I. (F.C., no. IMM-7284-05), Mosley, March 4, 2008; 2008 FC 290, the Court faulted the RPD for not considering evidence of enormous backlogs and prolonged or indefinite periods of detention before trial in the claimant’s country.

Return to note 31 referrer

Note 32

For example, in Pacificador, Rodolfo Guerrero v. M.C.I., no. IMM-4057-02), Heneghan, December 12, 2003; 2003 FC 1462, the Court held that the Board should have considered the objective basis of the claim relative to the claimant’s membership in a group consisting of persons in the Philippines who are prosecuted for political motives and whose prosecution appears to be tainted by corruption. In Altun, Ali v. M.C.I. (F.C., no. IMM-5854-11), Shore, August 29, 2012; 2012 FC 1034, the Court noted that the RPD had considered the matter as one of prosecution rather than persecution but failed to consider that a prosecution can be persecutory if there is clear evidence that the prosecution is not fair.

Return to note 32 referrer

Note 33

Mohamed, Abd Almoula Mohamed v. M.E.I. (F.C.A., no. A-26-92), Strayer, MacGuigan, Robertson, November 7, 1994.  The Court offered little elaboration in its brief reasons, and did not clearly articulate its measure(s) of validity.

Return to note 33 referrer

Note 34

Drozdov, Natalia v. M.C.I. (F.C.T.D., no. IMM-94-94), Joyal, January 9, 1995.

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Note 35

Cheung, supra, footnote 21, per Linden J.A.

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Note 36

Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.).

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Note 37

Thirunavukkarasu, supra, footnote 36, per Linden J.A.

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Note 38

Thirunavukkarasu, supra, footnote 36, per Linden J.A

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Note 39

Toledo, Ruben Fernando San Martin v. M.E.I. (F.C.A., no. A-205-91), Hugessen, Desjardins, Décary, March 1, 1993.

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Note 40

For example, see Kaler, Minder Singh v. M.E.I. (F.C.T.D., no. IMM-794-93), Cullen, February 3, 1994. In Sran, Gurjeet Singh v. M.C.I. (F.C.T.D., no. IMM-3195-96), McKeown, July 29, 1997, where the claimant had been repeatedly and badly tortured while in police custody, the Court observed: “Torture can never be excused at any time and it is insufficient to characterize it simply as abuse.”

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Note 41

For example, see Manihani, Saravjit Singh v. M.E.I. (F.C.T.D., no. A-753-92), Noël, September 3, 1993; Naguleswaran, Pathmasilosini (Naguleswaran) v. M.C.I. (F.C.T.D., no. IMM-1116-94), Muldoon, April 19, 1995.  In Naguleswaran the Court commented that those belonging to militant organizations ought not to be “treated with front-parlour civility”.

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Note 42

Brar, Jaskaran Singh v. M.E.I. (F.C.T.D., no. IMM-292-93), Rouleau, September 8, 1993; and Papou, Bhatia v. M.E.I. (F.C.T.D., no. A-1040-92), Rouleau, August 15, 1994.  See also Naguleswaran, supra, footnote 41, where Muldoon J. expressed the view that “western concepts of the administration of justice will just not work in some other countries” (emphasis omitted), given the need of those countries to safeguard public security, cope with civil war, and combat terrorism. 

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Note 43

Alfred, Rayappu v. M.E.I. (F.C.T.D., no. IMM-1466-93), MacKay, April 7, 1994: “The tribunal did not assess the physical mistreatment of the applicant by Colombo police in terms of persecution.  Under the International Covenant on Civil and Political Rights [,] Articles 7 and 4 make clear that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment even in times of public emergency.” 

Return to note 43 referrer

Note 44

Brar, supra, footnote 42.

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Note 45

Mahalingam, Paramalingam v. S.G.C. (F.C.T.D., no. A-79-93), Joyal, November 2, 1993; and Naguleswaran, supra, footnote 41.   In Velluppillai, Selvaratnam v. M.C.I. (F.C.T.D., no. IMM-2043-99), Gibson, March 9, 2000, the Court concluded that while the statement “Short detentions for the purpose of preventing disruption or dealing with terrorism do not constitute persecution” may be generally true, the CRDD must take into account the special circumstances of the claimant, in particular his age and, given that age, the impact of his prior experiences as forecasted in a psychological report. Kularatnam, Suhitha v. M.C.I. (F.C., no. IMM-3530-03), Phelan, August 12, 2004; 2004 FC 1122, at paragraph 10, affirms this position.  In Abu El Hof, Nimber v. M.C.I. (F.C., no. IMM-1494-05), von Finckenstein, November 8, 2005; 2005 FC 1515, the Court upheld as reasonable the RPD’s conclusion that the claimant’s two short detentions and interrogation, although humiliating, could be viewed as necessary security measures, given the heightened security in Israel at the time.

Return to note 45 referrer

Note 46

Joseph, Christy Shanthakumar v. S.S.C. (F.C.T.D., no. IMM-7503-93), MacKay, November 18, 1994.

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Note 47

Murugiah, Rahjendran v. M.E.I. (F.C.T.D., no. 92-A-6788), Noël, May 18, 1993; Soma, Ester Elvira v. M.C.I. (F.C.T.D., no. A-1129-92), Richard, November 15, 1994.

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Note 48

In Wickramasinghe v. M.C.I. (F.C.T.D., no. IMM-2489-01), Martineau, April 26, 2002; 2002 FCT 470, the Trial Division, following Thirunavukkarasu, supra, footnote 36, held “that beatings, arbitrary arrests and detention of suspects, even in a state of emergency, can never be justified or considered a legitimate part of investigations into criminal or terrorist activities, however dangerous the suspects are thought to be.”

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Note 49

In Rafieyan, Majid v. M.C.I. (F.C., no. IMM-4221-06), Tremblay-Lamer, July 6, 2007; 2007 FC 727, the Court, reviewing a decision of an immigration officer on a humanitarian and compassionate application, noted that the officer did not err in finding that while penalties prescribed by law may be indicative of risk, they are not determinative of the issue where there is evidence that these laws are not being enforced.

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Note 50

Chan (S.C.C.), supra, footnote 24, per Major J.

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Note 51

Chan (S.C C.), ibid., per Major J.

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Note 52

John, Lindyann v. M.C.I. (F.C.T.D., no. IMM-2833-95), Simpson, April 24, 1996 (reasons signed July 29, 1996), (re law criminalizing homosexual acts).  More generally, note Torres, Alejandro Rodriguez v. M.C.I. (F.C.T.D., no. IMM-503-94), Simpson, February 1, 1995 (reasons signed April 26, 1995): “In my view, refugee claims are not to be considered on a theoretical level which ignores the realities of the evidence. ... [The Refugee Division] was entitled to make a practical assessment of the possibility of the Applicant facing future persecution.”

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Note 53

See, for example, Mohebbi, Hadi v. M.C.I. (F.C., no. IMM-3755-13), Harrington, February 26, 2014; 2014 FC 182.

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Note 54

Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, May 1, 2017, section 8.5.6.

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Note 55

See, for example, Cheng v. M.C.I. (F.C.T.D., no. IMM-6589-00), Pinard, March 1, 2002; 2002 FCT 211; and Zheng v. M.C.I. (F.C.T.D., no. IMM-2415-01), Martineau, April 19, 2002; 2002 FCT 448.

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Note 56

There may be an overstay law which applies to all residents of a country or to all of the country’s citizens, and which provides for penalties of fine or incarceration.  Alternatively, a law may provide that a non-citizen resident (including a stateless resident) who travels abroad must return and report periodically, and that failure to do so will result in the loss of resident status and the right to return: e.g. Altawil, supra, footnote 16.

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Note 57

For an example of this last situation, see Losolohoh, James Salah v. M.E.I. (F.C.T.D., no. IMM-2324-94), Wetston, December 13, 1994.

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Note 58

Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.).

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Note 59

Valentin, supra, footnote 58.

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Note 60

However, see M.S. v. M.C.I. (F.C.T.D., no. A-132-91), McKeown, August 27, 1996.  The Court suggested that the severity of the penalty might be a very significant factor. 

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Note 61

See Perez, Sofia Sofi v. M.C.I. (F.C., no. IMM-6504-09), Snider, August 23, 2010; 2010 FC 833, where the Court applied Valentin and also found that based on the evidence, it was far from clear that the claimant would be charged and convicted under the applicable law.  She could still apply for a special re-entry permit to return to Cuba and her allegation of imprisonment was mere speculation. In Del Carmen Marrero Nodarse, Maria v. M.C.I. (F.C., no. IMM-1706-10), Near, March 10, 2011; 2011 FC 289, the Court upheld the Board’s finding that the applicant had artificially created a circumstance in which she might be punished for violating a Cuban law of general application. As there was no evidence that any prosecution the applicant would face would not be neutral, the RPD did not find that any potential prosecution constituted a risk of harm. In Suarez Rosales, Reinaldo v. M.C.I. (F.C., no. IMM-5038-11), Phelan, March 19, 2012; 2012 FC 323, the Cuban claimants had failed to seek an extension of their exit visas even though it is normal to extend such visas for 11 months and possibly longer.

Return to note 61 referrer

Note 62

Pernas Hernandez, Euler v. M.C.I. (F.C., no. IMM-2072-08), Phelan, March 4, 2009; 2009 FC 229.

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Note 63

Castaneda, Robert Martinez v. M.E.I. (F.C.T.D., no. A-805-92), Noël, October 19, 1993(Cuba).  In Chow, Wing Sheung v. M.C.I. (F.C.T.D., no. A-1476-92), McKeown, March 26, 1996, the Court noted that the Refugee Division had found that neither the maximum prescribed penalty nor the penalties actually imposed were harsh.

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Note 64

Donboli, Khosrow v M.C.I. (F.C., no. IMM-3013-02), Dawson, July 16, 2003; 2003 FC 883. See also Alfaro, Victor Labrador v. M.C.I. (F.C., no. IMM-7390-10), Rennie, July 22, 2011; 2011 FC 912; and Gonzalez Salcedo, Maykel v. M.C.I. (F.C., no. IMM-5975-13), Phelan, August 25, 2014; 2014 FC 822.

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Note 65

For an example of a situation which was found not to constitute desertion, see Nejad, Saeed Javidani-Tabriz v. M.C.I. (F.C.T.D., no. IMM-4624-93), Richard, November 16, 1994.

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Note 66

Musial, supra, footnote 17, per Thurlow C.J.

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Note 67

Popov, Leonid Anatolievich v. M.E.I. (F.C.T.D., no. IMM-2567-93), Reed, April 11, 1994.  Reported:  Popov v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 242 (F.C.T.D.).

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Note 68

Garcia, Marvin Balmory Salvador v. S.S.C. (F.C.T.D., no. IMM-2521-93), Pinard, February 4, 1994.  In Haoua, Mehdi v. M.C.I. (F.C.T.D., no. IMM-698-99), Nadon, February 21, 2000, the Court stated at para. 16 “… I also note that military service does not, in itself, constitute persecution.  Rather, the Applicant’s claim hinged on the fear that he would be forced to commit atrocities if he were drafted.  If there is no evidence of atrocities, as there was none in this case, there is no evidence of persecution.”

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Note 69

Convention on the Rights of the Child, Article 38(2) – under age 15; and Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Article 2 - under age 18.  The recruitment of child soldiers is a war crime under the Rome Statute of the International Criminal Court.

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Note 70

Zolfagharkhani, supra, footnote 18.

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Note 71

Musial, supra, footnote 17, also dealt with military service but Zolfagharkhani, supra, footnote 18 has replaced Musialas the chief authority not only with respect to the more encompassing topic of laws of general application, but also with respect to this particular example of such laws.  See Chapter 9, section 9.3.2.

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Note 72

See Chapter 9, section 9.3.2.

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Note 73

Ates, Erkan v. M.C.I. (F.C.A., no. A-592-04), Linden, Nadon, Sharlow, October 5, 2005; 2005 FCA 322 [Appeal from Ates, Erkan v. M.C.I. (F.C., no. IMM-150-04), Harrington, September 27, 2004; 2004 FC 1316]; leave to appeal to the Supreme Court of Canada dismissed without costs March 30, 2006 (31246).  This case was followed in Ielovski, Vladimir v. M.C.I. (F.C., no. IMM-3520-07), de Montigny, June 13, 2008; 2008 FC 739; and in Hinzman v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 561; 2006 FC 420, where the Court stated:

[207] At the present time, however, there is not internationally recognized right to either total or partial conscientious objection. While the UN Commission on Human Rights and the Council of Europe have encouraged member States to recognize a right to conscientious objection in various reports and commentaries, no international human rights instrument currently recognizes such a right, and there is no international consensus in this regard…

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Note 74

Zolfagharkhani, supra, footnote 18.

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Note 75

See Ahani, Roozbeh v. M.C.I. (F.C.T.D., no. IMM-4985-93), MacKay, January 4, 1995, where the Court said that the Refugee Division was entitled to find that the detentions and any associated mistreatment were related to the claimant’s failure to complete his military service, rather than to his Kurdish origin or related political views.  On the other hand, see Diab, Wadih Boutros v. M.E.I. (F.C.A., no. A-688-91),Isaac, Marceau, McDonald, August 24, 1994, where the Court held that the Refugee Division erred in that it failed to consider whether the claimant’s opposition to serving in a particular militia (which had press-ganged him) constituted a political opinion which could result in persecution.

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Note 76

Zolfagharkhani, supra, footnote 18.

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Note 77

See for example Sladoljev, Dejan v. M.E.I. (F.C.T.D., no. IMM-3160-94), Cullen, July 4, 1995.  The Court did not mention Zolfagharkhani, supra, footnote 18.

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Note 78

See also paragraphs 170 to 174 of the UNHCR Handbook.

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Note 79

Popov, supra, footnote 67. In Lebedev, Vadim v. M.C.I. (F.C., no. IMM-2208-06), de Montigny, July 9, 2007; 2007 FC 728, the Court described conscientious objection as “genuine convictions grounded in religious beliefs, philosophical tenets or ethical considerations”.

Return to note 79 referrer

Note 80

Zolfagharkhani, supra, footnote 18.

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Note 81

Ciric v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 65 (T.D.).

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Note 82

Zolfagharkhani, supra, footnote 18.  See also: Ciric, supra, footnote 81.  It is not enough for the claimant to show that a particular conflict has been condemned by the international community; it must also be the case that his refusal to participate was based on the condemnation: Sladoljev, supra, footnote 77.  And there must be a reasonable chance that the claimant would indeed be required to participate in the objectionable operations: Zolfagharkhani, supra, footnote 18;

Pronouncements from organizations such as Amnesty International, Helsinki Watch, and the Red Cross may constitute condemnation by the world community; condemnation by the United Nations is not necessary: Ciric, supra, footnote 81.

A non-defensive incursion into foreign territory is military activity that violates basic international standards, and United Nations condemnation of such an incursion is condemnation of the incursion as contrary to basic rules of human conduct: Al-Maisri, Mohammed v. M.E.I. (F.C.A., no. A-493-92), Stone, Robertson, McDonald, April 28, 1995.

There will also be instances where political expediency will prevent the UN or its member states from condemning the violation of international humanitarian law. This is why reports from credible non-governmental organizations, especially when they are converging and hinge on ground staff, should be accorded credit. Such reports may be sufficient evidence of unacceptable and illegal practices. See Lebedev, supra, footnote 79, cited with approval in Tewelde, Baruch v. M.C.I. (F.C., no. IMM-81-06), Gauthier, October 24, 2007; 2007 FC 1103.

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Note 83

Popov, supra, footnote 67. There must be a probability, and not merely a possibility, that the military will engage in the offending activity: Hashi, Haweya Abdinur v. M.C.I. (F.C.T.D., no. IMM-2597-96), Muldoon, July 31, 1997, alluding to Zolfagharkhani. In Sounitsky, Alexander v. M.C.I. (F.C., no. IMM-2184-07), Mosley, March 14, 2008; 2008 FC 345, the PRRA officer referred to evidence acknowledging the existence of abuses and the allegations by some international organizations about Israeli Defence force practices and gave a reasoned explanation for finding that the abuses were isolated and not systemic. A similar finding was made in Volkovitsky, Olga v. M.C.I. (F.C., no. IMM-567-09), Shore, September 10, 2009; 2009 FC 893.  In Key, Joshua Adam v. M.C.I. (F.C., no. IMM-5923-06), Barnes, July 4, 2008; 2008 FC 838, the issue was raised as to whether widespread violations of international law carried out by a military force but not rising to the level of war crimes or crimes against humanity can support a refugee claim by a conscientious objector. The case law does not support the idea that refugee protection is only available where the particulars of one’s objection to military service would, if carried out, exclude a claim by that person to protection.

Return to note 83 referrer

Note 84

Zolfagharkhani, supra, footnote 18.

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Note 85

Diab, supra, footnote 75.

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Note 86

Talman, Natalia v. S.G.C. (F.C.T.D., no. IMM-5874-93), Joyal, January 11, 1995.  In Kirichenko, Andrei v. M.C.I. (F.C., no. IMM-688-10), Russell, January 6, 2011; 2011 FC 12, the Court noted that the RPD erred by failing to mention and deal with the objective documentation on the record which said that conscientious objector status was not available to males in Israel. (Hinzman distinguished). The Court further noted that the evidence showed that there was no law allowing for conscientious objector status in Israel and the so-called Conscientious Objector Committee is “haphazard, secretive and difficult to access”, which is vague and arbitrary and cannot be considered an option. However, in the later case of Graider, Emil v. M.C.I. (F.C., no. IMM-2894-12), O’Reilly, April 29, 2013; 2013 FC 435, the Court referred to post Kirichenko evidence that indicated that Israel had established a “special military committee” that grants exemptions from military service to conscientious objectors, or recommends their assignment to non-combat roles. This committee was set up in response to a May 2009 judgment of the Israeli High Court of Justice that recognized the rights of conscientious objectors.

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Note 87

Frid, Mickael v. M.C.I. (F.C.T.D., no. IMM-6694-93), Rothstein, December 15, 1994. See also Moskvitchev, Vitalli v. M.C.I. (F.C.T.D., no. IMM-70-95), Dubé, December 21, 1995, where the Court upheld decisions of Post-Claim Determination Officers (PCDOs).  In Moskvitchev, the PCDO found that a sentence of six months to five years for draft evasion in Moldova would not be inhuman [sic] or extreme.    Insults and attacks on a conscientious objector while in prison do not constitute persecution: Treskiba, Anatoli Benilov v. M.C.I. (F.C., no. IMM-1999-08), Pinard, January 13, 2009; 2009 FC 15.

Return to note 87 referrer

Note 88

In Al-Maisri, supra, footnote 82, the claimant had deserted from an army which was participating in an operation condemned as contrary to basic rules of human conduct, and the Court noted that “the punishment for desertion which would likely be visited upon the [claimant] …, whatever that punishment might be, would amount to persecution.” (emphasis added).

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Note 89

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.). In Lowell, Matthew David v. M.C.I. (F.C., no. IMM-4599-08), Zinn, June 22, 2009; 2009 FC 649, on an unsuccessful application for humanitarian and compassionate relief, the Court noted that the evidence indicated that the applicant (a U.S. deserter) would likely not serve more than 15 months (of a possible sentence of 7 years confinement or possibly the death penalty) and only then after receiving due process.

Return to note 89 referrer

Note 90

In Rivera, Kimberly Elaine v. M.C.I. (F.C., no. IMM-215-09), Russell, August 10, 2009; 2009 FC 814, the Court criticized the RPD because it had failed to conduct a meaningful examination in the decision of selected and targeted prosecution by the U.S. based upon the political opinion of those deserters who have spoken out against the war in Iraq. Similarly, in Walcott, Dean William v. M.C.I. (F.C., no. IMM-5527-10; F.C. no. IMM-5528-08), de Montigny, April 5, 2011; 2011 FC 415, the Court found that the PRRA Officer ignored the applicant’s evidence that his fear was based not so much on being punished for having been absent from his military unit without permission, but of being treated more harshly because of the high profile of his case and his public speeches in opposition to the war in Iraq. The Officer failed to address this risk, and more particularly the risk of being court-martialed and imprisoned rather than being administratively discharged. In Vassey, Christopher Marco v. M.C.I. (F.C., no. IMM-5834-10), Scott, July 18, 2011; 2011 FC 899, the Court found unreasonable the RPD’s failure to assess the evidence before it concerning the application of prosecutorial discretion on the grounds of political opinion. In R.S. v. M.C.I. (F.C., no. IMM-6056-11), Gleason, July 6, 2012; 2012 FC 860, the Court found that the RPD erred by failing to consider the applicant’s argument that the treatment afforded to selective conscientious objectors in Israeli military prisons was harsher than that afforded to those who were jailed because they had refused to serve for other reasons and that selective conscientious objectors received longer sentences. In Tindungan, Jules Guiniling v. M.C.I. (F.C., no. IMM-5069-12), Russell, February 1, 2013; 2013 FC 115,  the Court found that the RPD had failed to consider evidence that supported the claimant’s allegation that he would be disproportionately punished if sent back to the US because of his publicly expressed political opinions.

Return to note 90 referrer

Note 91

Kogan, Meri v. M.C.I. (F.C.T.D., no. IMM-7282-93), Noël, June 5, 1995.  The operative idea seems to be that the claimant should be considered bound by his own voluntary decision.  The fact that the claimant chose to immigrate despite knowing of compulsory service might also raise a question as to the strength (or even genuineness) of his conviction. But note that in Agranovski, Vladislav v. M.C.I. (F.C.T.D., no. IMM-2709-95), Tremblay-Lamer, July 3, 1996, whereat the time of immigrating to Israel, the claimant had known that there was compulsory military service, and the Refugee Division did not believe he had reasons of principle for refusing to serve, the Court overturned this conclusion, noting that the claimant had been brought to the country as a minor by his parents, and that he had thought he would be able to avail himself of alternative service.

Return to note 91 referrer

Note 92

Hinzman, Jeremy, RPD TA4-01429, B. Goodman, March 16, 2005; Hughey, Brandon David, RPD TA4-05781, B. Goodman, August 16, 2005.

Return to note 92 referrer

Note 93

Hinzman, supra, footnote 73; Hughey, Brandon David v. M.C.I. (F.C., no. IMM-5571-05), Mactavish, March 31, 2006; 2006 FC 421.

Return to note 93 referrer

Note 94

Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171 (leave to appeal dismissed by the SCC on November 15, 2007, [2007] S.C.C.A. No. 321).  In Colby, Justin v. M.C.I. (F.C., no. IMM-559-07), Beaudry, June 26, 2008; 2008 FC 805, the Court found that the claimant’s claim was materially indistinguishable from the decision in Hinzman except that the claimant was a medic who was deployed to Iraq instead of a foot soldier who deserted after his unit had been deployed to that country. Key, supra, footnote 83, confirms that the Hinzman decision set the bar very high for deserters from the United States military seeking refuge in Canada. However, because the Board took the issue of state protection “off the table” at the hearing, Mr. Key should be given the opportunity to address fully the issue of state protection in a rehearing before the Board.  Landry, Dale Gene v. M.C.I. (F.C., no. IMM-5148-08), Harrington, June 8, 2009; 2009 FC 594 also followed Hinzman. While the preceding cases following Hinzman were based on conscientious objection (effectively, political opinion), in Smith, Bethany Lanae v. M.C.I. (F.C., no. IMM-677-09), de Montigny, November 20, 2009; 2009 FC 1194, the claim was based on sexual orientation and the Court noted that the RPD failed to consider evidence that the U.S. military judicial system was unfair to, and biased, against homosexuals and that the claimant could not effectively defend herself against a charge of desertion. At the re-hearing of the claim, the RPD again rejected the claim and did not believe the claimant’s allegation of having experienced persecution based on her sexual orientation. The Court upheld the decision and held, inter alia, that absent evidence of efforts by the applicant to avail herself of the remedies available in the United States, it was impossible for the RPD to assess the availability of state protection for her (Hinzman). It was reasonably open to the RPD to conclude there was adequate recourse in the US for those who felt they had been wronged in the US army. See Smith, Bethany Lanae v. M.C.I. (F.C., no. IMM-5699-11), Mosley, November 2, 2012; 2012 FC 1283.

Return to note 94 referrer

Note 95

In both Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), and Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, it was recognized that the fear of persecution under China’s one-child policy is largely dependent on the practices of the relevant local authority.  A review of the documentary evidence in Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983 indicated that this was still the case at the time of the hearing.  In Lau, Yei Wah v. M.C.I. (F.C., no. IMM-2329-07), Phelan, April 17, 2008; 2008 FC 499, a PRRA officer found that payment of a fee for a breach of the one-child policy was not persecution. It was incumbent on the claimant to put forward evidence that the fee was so large as to amount to persecution, either as a general proposition or in regard to the claimant personally.

Return to note 95 referrer

Note 96

Cheung, supra, footnote 21.

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Note 97

Chan (F.C.A.), supra, footnote 23.

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Note 98

Ward, supra, footnote 12.

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Note 99

Chan (S.C.C.), supra, footnote 24.

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Note 100

Chan (F.C.A.), supra, footnote 23, per Heald J.A.

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Note 101

Cheung, supra, footnote 21. See also Chan (S.C.C.), supra, footnote 24, per Major J.  The Supreme Court noted that, for the claim to succeed, evidence must show both that there is a subjective fear and that the fear is “objectively well-founded” (per Major J.).  According to the Court, the evidence did not establish a serious possibility that certain harm would be inflicted - i.e., did not establish an objective basis (per Major J.).  The Court also had doubts as to whether subjective fear was made out (per Major J.).

Return to note 101 referrer

Note 102

"Physical compulsion is not the only mechanism for forcing a person to do something which they would not of their own free choice choose to do”: Liu, Ying Yang v. M.C.I. (F.C.T.D., no. IMM-4316-94), Reed, May 16, 1995.  The claimant had been subjected to “incredible pressure”: her work unit, and she herself and her husband, would have incurred fines if she had had a second child; also, on two occasions a member of the work unit had accompanied her to a hospital where she was to undergo sterilization.  Such pressure amounts to “forcing”, as does denying a person 80% of his salary.

Compare Chan (S.C.C), supra, footnote 24, per Major J.: “... the [claimant] failed to provide ... evidence to substantiate his claim that the pressure from the Chinese authorities to submit to sterilization would extend beyond psychological and financial pressure to actual physical coercion.”  It is unclear whether Mr. Justice Major (i) was of the view that psychological and financial pressure could not constitute forcing (and could not constitute persecution), or (ii) was simply focusing upon the specific allegation made by the appellant (namely, that he would be physically coerced), or (iii) did not think the particular psychological and financial pressures confronting this claimant would be severe enough to constitute persecution.  Interpretation (i) might be a dubious one, given that Major J. did not clearly assert this view, and did not present a discussion of the issue.

Return to note 102 referrer

Note 103

Cheung, supra, footnote 21.

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Note 104

Chan (S.C.C.), supra, footnote 24, per La Forest J. (dissenting).  The majority in the Supreme Court did not expressly comment on the issue, although Mr. Justice Major appeared to assume that forced sterilization would indeed constitute persecution.  See also Chan (F.C.A.), supra, footnote 23, per Heald J.A. and per Mahoney J.A. (dissenting).

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Note 105

Cheung, supra, footnote 21.  For a Supreme Court response to the “legitimate end” argument - a response complementing that of Linden J.A. in Cheung, supra, footnote 21 - see the remarks of La Forest J. (dissenting), in Chan (S.C.C.), supra, footnote 24.

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Note 106

Chan (S.C.C.), supra, footnote 24, per La Forest J. (dissenting).

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Note 107

Lai, Quang v. M.E.I. (F.C.T.D., no. IMM-307-93), McKeown, May 20, 1994. See also Xiao, Yan Liu v. M.C.I. (F.C.T.D., no., IMM-712-15), Harrington, October 21, 2015; 2015 FC 1193, where the Court stated: “ Both jurisprudence and common sense conclude that the violation of a woman’s reproductive and physical integrity, such as by means of forced abortion or the forced insertion of an IUD constitutes persecution and that the victim of such acts is a member of a particular social class under section 96 of IRPA and is entitled to Canada’s protection.”

Return to note 107 referrer

Note 108

Zheng, Jin Xia v. M.C.I. (F.C., no. IMM-3121-08), Barnes March 30, 2009; 2009 FC 327; and M.C.I. v. Ye, Yanxia (F.C., no. IMM-8797-12), Pinard, June 13, 2013; 2013 FC 634.

Return to note 108 referrer

Note 109

This ruling is from an old decision, Lin v. Canada (Minister of Employment and immigration), (1993), 66 FTR 207, 24 Imm LR (2d) 208 (FCTD) but it has been cited with approval in various cases, including Chen, Li Xing v. M.C.I. (F.C., no. IMM-8158-13), Rennie, February 19, 2015; 2015 FC 225. But note that in Huang, Wei Yao v. M.C.I. (F.C., no. IMM-10448-12), Simpson, October 23, 2013; 2013 FC 1074, the Court commented that the RPD should have considered the argument that if fines are imposed at six times the claimants’ annual income as an alternative to sterilization, such fines are persecutory because they have a coercive impact and essentially mean that sterilization will be preferred and will occur.

Return to note 109 referrer

Note 110

Lai, supra, footnote 107.  In Liu, supra, footnote 102, the Court noted there was no evidence that the adult claimants, who had had a second child while in Canada, still objected to the family planning policy or methods of the Chinese government; on this basis, the Court held that evidence of subjective fear was lacking. See also Cheng, Kin Ping v. M.C.I. (F.C.T.D., no. IMM-176-97), Tremblay-Lamer, October 8, 1997,where the male claimant had no reason to fear persecution for violation of the family planning policy, since his wife had already been sterilized (following the birth of one child and a subsequent forced abortion).

Return to note 110 referrer

Note 111

Cheung, supra, footnote 21.

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Note 112

Chan (F.C.A.), supra, footnote 23, per Heald J.A., and Desjardins J.A.  In his dissent, Mahoney J.A. rejected one delineation of a particular social group, but accepted another.

Return to note 112 referrer

Note 113

Chan (S.C.C.), supra, footnote 24, per Major J.

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Note 114

Chan (S.C.C.), supra, footnote 24, per La Forest J. (dissenting).

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Note 115

Chan (F.C.A.), supra, footnote 23, per Heald J.A.

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Note 116

Chan (F.C.A.), supra, footnote 23, per Desjardins J.A.  Compare Kwong, Kam Wang (Kwong, Kum Wun) v. M.C.I. (F.C.T.D., no. IMM-3464-94), Cullen, May 1, 1995.

When Chan came before the Supreme Court, both the majority and the minority declined to decide whether the claimant’s action of having a second child “was sufficiently expressive of a political opinion to independently found a refugee claim” (per Major J. and per La Forest J. (dissenting).  Mr. Justice La Forest thought the evidence pointed to other possible connections to political opinion (at 647-8).  However, His Lordship’s broaching of these possibilities and his reading of the evidence were disapproved of by Mr. Justice Major.

Return to note 116 referrer

Note 117

Cheng, supra, footnote 110.

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Note 118

This principle has been incorporated in s. 3(3)(f) of IRPA, which provides that “[t]his Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory.”

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Note 119

Also see the reference to Daghighi in footnote 23, above.

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Note 120

Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.). 

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Note 121

Namitabar (T.D.), supra, footnote 16.In Namitabar (F.C.A.), supra, footnote 16, the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so..."

Return to note 121 referrer

Note 122

Fathi-Rad, supra, footnote 16.  In Rabbani, Farideh v. M.C.I. (F.C.T.D., no. IMM-2032-96), McGillis, June 3, 1997, the Refugee Division had concluded that a violation of Iran’s Islamic dress code could not form the basis of a well-founded fear of persecution.  It had noted the dress conventions applicable to various groups elsewhere, had indicated that such conventions did not involve violations of basic human rights, and had said that the same was true of the Iranian dress code.  The Court observed that, in making these comparisons, the Refugee Division had “... ignored, failed to appreciate or trivialized the persecutory aspects of the Islamic dress code ...” Furthermore, the Refugee Division had failed to acknowledge documentary evidence regarding the penalties for failure to comply with the code.

Return to note 122 referrer

Note 123

Hazarat, Ghulam v. S.S.C. (F.C.T.D., no. IMM-5496-93), MacKay, November 25, 1994.

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Note 124

Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60, (T.D.).

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Note 125

Vidhani, supra, footnote 124.  See also F.I. v. M.C.I. (F.C.T.D., no. IMM-4795-97), Muldoon, July 16, 1998 (a brute who rapes a woman is certainly not following traditional customary practices).

Return to note 125 referrer

Note 126

Ameri, Ghulamali v. M.C.I. (F.C.T.D., no. IMM-3745-94), MacKay, January 30, 1996.

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Note 127

Ameri, supra, footnote 126.

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Note 128

Pour, Malek Mohammad Nagmeh Abbas v. M.C.I. (F.C.T.D., no. IMM-3650-95), Gibson, June 6, 1996.

Return to note 128 referrer

Note 129

Namitabar (T.D.), supra, footnote 16.  In Namitabar (F.C.A.), supra, footnote 16, the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so..."

Return to note 129 referrer

Note 130

Fathi-Rad, supra, footnote 16.

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Note 131

Ali, Shaysta-Ameer, supra, footnote 8.  One of the claimants was a nine-year-old girl who could have avoided persecution only by refusing to go to school, and thus forswearing the basic human right to an education.  The Court considered her to be a Convention refugee.  In a rather different context, the Court again indicated that the Refugee Division must not expect a claimant to buy peace for herself with an unconscionable self-denial (namely, continuing to lie about her lack of religious inclinations): Kazkan, Shahrokh Saeedi v. M.C.I. (F.C.T.D., no. IMM-1313-96), Rothstein, March 20, 1997.

Return to note 131 referrer

Note 132

Fathi-Rad, supra, footnote 16.  See also Namitabar (T.D.), supra, footnote 16.

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Note 133

Namitabar (T.D.), supra, footnote 16.  In Fathi-Rad, supra, footnote 16, the Convention ground invoked for the part of the claim pertaining to the dress code appears to have been membership in a particular social group; the social group in question was not expressly named in the Court’s reasons.  In Namitabar (F.C.A.), supra, footnote 16, the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so..."

Return to note 133 referrer

Note 134

Sicak, Bucak v. M.C.I. (F.C., no. IMM-4699-02), Gauthier, December 11, 2003; 2003 FC 1457.

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Note 135

Kaya, Bedirhan Mustafa v. M.C.I. (F.C., no. IMM-5565-03), Harrington, January 14, 2004; 2004 FC 45.  See also Abbes, Lotfi v. M.C.I. (F.C., no. IMM-2989-06), Tremblay-Lamer, February 1, 2007; 2007 FC 112, where the Court found that the prohibition against wearing a veil in Tunisia did not constitute persecution.

Return to note 135 referrer

Note 136

Kaya, supra, footnote 135, para. 18.

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Note 137

Aykut, Ibrahim v. M.C.I. (F.C., no. IMM-5310-02), Gauthier, March 26, 2004; 2004 FC 466.  See also Karaguduk, Abdulgafur v. M.C.I. (F.C., no. IMM-2695-03), Henegan, July 5, 2004; 2004 FC 958, where the Court affirmed the decision of the Pre-Removal Risk Assessment Officer who “found that although the Principal Applicant’s daughter experienced discrimination as a result of wearing headscarves, this discrimination did not amount of persecution.”

Return to note 137 referrer

Note 138

Vidhani, supra, footnote 124.  See also Gwanzura, Unity v. M.C.I. (F.C.T.D., no. IMM-1907-96), Heald, July 10, 1997.

Return to note 138 referrer

Note 139

Ali, Shaysta-Ameer, supra, footnote 8.

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Note 140

Annan, supra, footnote 120. 

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Note 141

Annan, supra, footnote 120.  The issue of state protection was touched upon in Vidhani, supra, footnote 124 as well.  The Court found that the Refugee Division had not dealt adequately with the issue, and in particular with the claimant’s explanation for not having sought police assistance.

Return to note 141 referrer

Note 142

Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act, updated November 25, 1996, as continued in effect by the Chairperson on June 28, 2002 under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.

Return to note 142 referrer

Note 143

Butt, Abdul Majid (Majeed) v. S.G.C. (F.C.T.D., no. IMM-1224-93), Rouleau, September 8, 1993.; See also Thathaal, Sabir Hussain v. S.S.C. (F.C.T.D., no. A-1644-92), McKeown, December 15, 1993.

Return to note 143 referrer

Note 144

Ahmad, Masroor v. M.E.I. (F.C.T.D., no. A-555-92), Rothstein, June 16, 1994.

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Note 145

Rehan, Muhammad Arif v. M.C.I. (F.C.T.D., no. A-580-92), Gibson, October 18, 1996.

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Note 146

[1990] Imm. A.R. 61 (Eng.C.A.).  Quoted in Rehan, supra, footnote 145.

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Note 147

Rehan, supra, footnote 145.

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Note 148

Rehan, supra, footnote 145.

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Note 149

Ahmed, Irfan v. M.C.I. (F.C.T.D., no. IMM-2725-96), Joyal, July 4, 1997.

Return to note 149 referrer

Note 150

Mehmood, Nasir v. M.C.I.  (F.C.T.D., no. IMM-2256-97), McGillis, May 14, 1998.

Return to note 150 referrer

Note 151

Ahmad, Tahir v. M.C.I. (F.C., no. IMM-3148-11), Scott, January 24, 2012; 2012 FC 89.

Return to note 151 referrer

Note 152

RAD TB0-01837, Bosveld, May 8, 2017.

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Note 153

Bhatti, Naushaba v. S.S.C. (F.C.T.D., no. A-89-93), Jerome, September 14, 1993.  Reported:  Bhatti v. Canada (Secretary of State). (1994), 25 Imm. L.R. (2d) 275 (F.C.T.D.), at 278-279. 

Return to note 153 referrer

Note 154

Pour-Shariati v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 767 (T.D.).  Rothstein J. certified a question as to whether indirect persecution constitutes a basis for a claim.

Return to note 154 referrer

Note 155

Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (T.D.).

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Note 156

Casetellanos, supra, footnote 155.    On the other hand, in Nina, Razvan v. M.C.I. (F.C.T.D., no. A-725-92), Cullen, November 24, 1994, the Court, seems to have considered the mistreatment of the child, who was kidnapped in order to put pressure on his father, to be persecution of the father.  In Hashmat, Suhil v. M.C.I. (F.C.T.D., no. IMM-2331-96), Teitelbaum, May 9, 1997, Mr. Justice Teitelbaum noted that earlier cases had rejected the principle of indirect persecution.  However, he indicated that, where the Refugee Division was dealing with “the separate issue” of whether a the claimant would undergo undue hardship in journeying to a potential internal refuge (this issue being a subset of the “reasonableness” branch of the IFA test), relevance attached to the potential hardship of the wife and daughter who would accompany him on the journey: at page 5.  In two Sri Lanka IFA cases the issue of indirect persecution was considered. In Jeyarajah, Vijayamalini v. M.C.I. (F.C.T.D., no. IMM-2473-98), Denault, March 17, 1999, it was noted that a person is not a refugee simply because a family member (husband) is persecuted.  However, in Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983, the Court held that “any persecution which the second child Canadian-born infant will experience in China is directly experienced by the parents, and is not ‘indirect persecution’.”  But see Dombele, Adelina v. M.C.I. (F.C.T.D., no. IMM-988-02), Gauthier, February 26, 2003; 2003 FCT 247 where the CRDD determined the claimant’s husband to be a refugee, but not the claimant or her daughters.  The Court held that the panel was right in finding that the persecution affecting the claimant’s husband and which could affect the claimant and her daughters was indirect persecution, thus not persecution within the meaning of the Convention (Pour-Shariati).

Return to note 156 referrer

Note 157

Pour-Shariati, Dolat v. M.E.I. (F.C.A., no. A-721-94), MacGuigan, Robertson, McDonald, June 10, 1997. Reported: Pour-Shariati v. Canada (Minister of Employment and Immigration) (1997), 39 Imm. L.R. (2d) 103 (F.C.A.); affirming [1995] 1 F.C. 767 (T.D.).

Return to note 157 referrer

Note 158

An appropriate case was found in Tomov, Nikolay Harabam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005; 2005 FC 1527. The Court held that it is not enough to point to the persecution suffered by family members if it is unlikely to affect the claimant directly. Here, as a result of his common-law relationship with his Roma spouse, the claimant would be directly at risk as long as they remain together in a marital relationship.

Return to note 158 referrer

Note 159

Cetinkaya, Lukman v. M.C.I. (F.C.T.D., no. IMM-2559-97), Muldoon, July 31, 1998.

Return to note 159 referrer

Note 160

A claim based on indirect persecution may also be distinguished from a claim based on (direct) persecution by reason of membership in a particular social group which consists of a certain family.  In Kaprolova, Elena v. M.C.I. (F.C.T.D., no. IMM-388-97), Teitelbaum, September 25, 1997, judicial review was granted because the Refugee Division had mistaken a social-group claim for an indirect-persecution claim.  In Ndegwa, Joshua Kamau v. M.C.I. (F.C., no. IMM-6058-05), Mosley, July 5, 2006; 2006 FC 847, the Court held that the Board erred by treating the case as one of indirect persecution. The claimant was not just an unwilling spectator of violence against other family members. He may be at personal risk due to his membership in the family. See also Chapter 4, section 4.5.

Return to note 160 referrer

Note 161

Pour-Shariati, supra, footnote 157; Casetellanos, supra, footnote 155; and Dawlatly, George Elias George v. M.C.I.  (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998.  In Shaikh, Sarwar v. M.C.I. (F.C.T.D., no. IMM-2489-98), Tremblay-Lamer, March 5, 1999, following Dawlatly, the Court held that the principle of family unity has not been incorporated in the definition of Convention refugee.  There are other means in the Immigration Act, such as s.46.04(1) of ensuring that dependants of Convention refugees are granted permanent residence.  See also Serrano, Roberto Flores v. M.C.I. (F.C.T.D., no. IMM-2787-98), Sharlow, April 27, 1999 where it was held that a family connection is not an attribute requiring Convention protection in the absence of an underlying Convention ground for the claimed persecution.

Return to note 161 referrer

Note 162

Chavez Carrillo, Diego Antonio v. M.C.I. (F.C., no. IMM-3170-12), Noël, October 22, 2012; 2012 FC 1228. See also El Achkar, Nasri Ibrahim v. M.C.I. (F.C., no. IMM-5768-12), Strickland, May 6, 2013; 2013 FC 472, where the Court noted that persecution against one family member does not automatically entitle all other family members to be considered refugees.

Return to note 162 referrer

Note 163

Gribovskaia, Elena v. M.C.I. (F.C., no. IMM-5848-04), Rouleau, July 11, 2005; 2005 FC 956.

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