- Note 1
M.C.I. v. Sartaj, Asif (F.C., no. IMM-1998-05), O’Keefe, March 14, 2006; 2006 FC 324, where the Court found that the RPD erred in finding the claimant to be a Convention refugee with respect to Pakistan where it had already ruled that he was excluded under Article 1E with respect to Costa Rica.
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- Note 2
Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998, the claimant, a citizen of Sudan, was eligible for temporary resident status in Greece, a country where he had never resided, because of his marriage to a Greek national. The Court held that the CRDD erred in excluding the claimant under Article 1E on the ground that he should have sought asylum in Greece.
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- Note 3
Kroon, Victor v. M.E.I. (F.C.T.D., no. IMM-3161-93), MacKay, January 6, 1995. The applicant urged the Court to find that “the exclusion provision under Article 1E should be strictly construed and should be confined to those cases where an applicant has moved from his or her own country of nationality to seek refugee status in another country where he or she then resides with essentially similar rights to those of nationals of the second country. It is urged the provision has no application in the circumstances of this case where the applicant, as a Russian national and a citizen of the U.S.S.R., was authorized to reside in Estonia when it was a state within the U.S.S.R., but it has since evolved to be an independent state in which the applicant has fewer rights than originally accorded to him as a resident.” The Court stated it was not persuaded that “the words of Article 1E should be so narrowly applied”.
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- Note 4
Lu, Yanping v. M.C.I. (F.C., no. IMM-5083-11), Phelan, March 15, 2012; 2012 FC 311 a case regarding a Chinese national, the
prima facie case consisted of Chilean residency documents and confirmation from the Chilean consulate that he had permanent resident status in Chile.
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- Note 5
M.C.I. v. Zeng, Guanqiu (F.C.A., no. A-275-09), Noël, Layden-Stevenson, Stratas, May 10, 2010; 2010 FCA 118. See also
M.C.I. v. Tajdini, Sima (F.C., no. IMM-1270-06), Mactavish, March 1, 2007; 2007 FC 227. But see
Wasel, Abdulkader v. M.C.I. (F.C., no. IMM-2288-15), Brown, December 22, 2015; 2015 FC 1409, in which the Court, relying on
Shahpari, Khadijeh v. M.C.I. (F.C.T.D., no. IMM-2327-97), Rothstein, April 3, 1998, stated that “because it is a low threshold determination, the Minister's onus is met by virtue of the fact the Applicant has a Greek Permanent Resident Permit which prima facie i.e., on a basis of less than the balance of probabilities, establishes the application of the exclusion in Article 1E.”
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- Note 6
Mahdi, Roon Abdikarim v. M.C.I. (F.C.T.D., no. IMM-1600-94), Gibson, November 15, 1994. Reported:
Mahdi v. Canada (Minister of Citizenship and Immigration) (1994), 26 Imm. L.R. (2d) 311 (F.C.T.D.), affirmed on appeal
M.C.I. v. Mahdi, Roon Abdikarim (F.C.A., no. A-632-94), Pratte, MacGuigan, Robertson, December 1, 1995. Reported:
Canada (Minister of Citizenship and Immigration) v. Mahdi (1995), 32 Imm. L.R. (2d) 1 (F.C.A.).
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- Note 7
Zeng, supra, footnote 5.
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- Note 8
Mojahed, Majid v. M.C.I. (F.C., no. IMM-7157-14), de Montigny, May 28, 2015; 2015 FC 690, the Court considered the case of an Iranian national who had voluntarily resigned his permanent resident status in Austria, by staying outside of the country for more than one year. The Court found that the RPD had reasonably considered and weighed the various relevant factors and upheld the finding of exclusion. With respect to the phrase “or had access to such status and failed to acquire it” there is some discussion of this in
Alsha’bi, infra, footnote 10, where Strickland, J. noted, in obiter: “…I would not go so far as to say that the question of whether a claimant can renew their status, or re-apply for status, is irrelevant to their claim for refugee status. To my mind, such questions could be relevant to the question of whether there is a right of return, particularly if the evidence established there is nothing preventing a claimant from reacquiring status in a country of former habitual residence. Nor does it raise the question of fault, but rather whether or not there is in fact a right of return, which is consistent with the test in
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- Note 9
The test was applied in
Hussein Ramadan, Hanan v. M.C.I. (F.C., no. IMM-1510-10), Tremblay-Lamer, November 5, 2010; 2010 FC 1093, with respect to a Lebanese claimant with permanent resident status in Paraguay. In
Rrotaj, Gjon v. M.C.I. (F.C.A., no. A-79-16), Stratas, Webb, Woods, November 21, 2016; 2016 FCA 292, the Federal Court of Appeal was presented with the following certified question: “Does Article 1E of the Refugee Convention, as incorporated into IRPA, apply if a claimant’s third country residency status (including the right to return) is subject to revocation at the discretion of that country’s authorities?” The Court rejected the appeal on the basis that the certified question was not proper and that
Zeng had already answered the question to the extent it can be answered.
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- Note 10
M.C.I. v. Alsha’bi, Hanan (F.C., no. IMM-2032-15), Strickland, December 14, 2015; 2015 FC 1381. The Court noted:
 Thus, in effect, what the Minister seeks is to broaden Article 1E to exclude persons whose status is less than that of a national. However, in my view, because of the difference in status, the principles guiding exclusion under Article 1E have questionable import in the test in
Thabet, where the question is focused only on whether the stateless claimant has a right of return to a safe country of former habitual residence.
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- Note 11
Majebi, Henry v. M.C.I. (F.C.A., no. A-52-16), Dawson, Near, Woods, November 9, 2016; 2016 FCA 274. Leave to appeal dismissed by the Supreme Court of Canada on June 1, 2017 (Court docket no. 37437).
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- Note 12
Olschewski, Alexander Nadirovich v. M.E.I. (F.C.T.D., no. A-1424-92), McGillis, October 20, 1993, although the claimants could re-apply for Ukrainian citizenship, their applications would be dealt with on a “case-by-case” basis and it was not clear that they would be able to return to their country of birth. In
M.C.I. v. Mohamud, Layla Ali (F.C.T.D., no. IMM-4899-94), Rothstein, May 19, 1995, the Court noted that the permit given to the Somali claimant by the Italian authorities, which was renewable annually, “does not give her rights analogous to Italian nationals. While the [claimant] had many rights, such as the right to work and travel in, and leave and return to Italy, she did not have the right to remain in Italy once the war was over and conditions [in Somalia] returned to normal.” While Justice Rothstein was “not prepared to say that section E of Article 1 of the Convention means that a person … must have rights that are identical in every respect to those of a national,” it did, in his view, “mean that an important right such as the right to remain (in the absence of unusual circumstances such as a criminal conviction) must be afforded.” In
Kanesharan, Vijeyaratnam v. M.C.I. (F.C.T.D., no. IMM-269-96), Heald, September 23, 1996. Reported:
Kanesharan v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 185 (F.C.T.D.), although the Sri Lankan claimant had been given extended permission to remain in the United Kingdom, the Court found that the CRDD erred in excluding him because the UK Home Office reserved the right to remove persons to their country of nationality “should the prevailing circumstances change significantly in a positive manner,” and their eligibility to remain in the UK indefinitely after seven years was not a certainty. The “tentative and conditional language” used by the Home Office did not entitle the CRDD to conclude as it did. See also
Hurt v. Canada (Minister of Manpower and Immigration),  2 F.C. 340 (C.A.), at 343, where the claimant, a Polish national, was advised by the German authorities that his temporary visa, which was soon due to expire, would not be renewed and that he would be deported.
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- Note 13
Wassiq, Pashtoon v. M.C.I. (F.C.T.D., no. IMM-2283-95), Rothstein, April 10, 1996. In this case, the claimants were from Afghanistan and had been granted refugee status in Germany. The evidence in the case indicated that their German travel documents had expired and that the Government had refused to extend them stating that because of the applicants’ extended absence from Germany and their sojourn in Canada, “responsibility under the 1951 Geneva refugee Convention had passed to Canada”. The issue was whether Germany recognized that the applicants had the rights and obligations which are attached to the possession of German nationality, including the right to return and not which country was responsible for them under the Convention.
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- Note 14
Murcia Romero, Ingrid Yulima v. M.C.I. (F.C., no. IMM-3370-05), Snider, April 21, 2006; 2006 FC 506.
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- Note 15
Choezom, Tendzin v. M.C.I. (F.C., no. IMM-1420-04), von Finckenstein, September 30, 2004; 2004 FC 1329.
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- Note 16
The situation of claimants with connections to China, Tibet and India has been considered in the context of country of reference (rather than a possible 1E country) with India being considered either a putative country of citizenship or a country of former habitual residence. See more on this in Chapter 2.
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- Note 17
Zeng, supra, footnote 5. The female claimant’s temporary resident status in Chile had also expired.
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- Note 18
Parshottam, Karim Badrudin v. M.C.I. (F.C.A., no. A-73-08), Evans, Ryer, Sharlow (concurring in result), November 14, 2008; 2008 FCA 355. Reported:
Parshottam v. Canada (Minister of Citizenship and Immigration,  3 F.C.R. 527 (F.C.A.). Affirming
Parshottam, Karim Badrudin v. M.C.I. (F.C., no. IMM-192-07), Mosley, January 15, 2008; 2008 FC 51.
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- Note 19
Li, Hong Lian v. M.C.I. (F.C., no. IMM-585-09), Mandamin, August 24, 2009; 2009 FC 841.
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- Note 20
Nepete, Firmino Domingos v. M.C.I. (F.C.T.D., no. IMM-4471-99), Heneghan, October 11, 2000.
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- Note 21
Mohamed, Hibo Farah v. M.C.I. (F.C.T.D., no. IMM-2248-96), Rothstein, April 7, 1997. Although the Swedish permanent residence certificate had to be periodically renewed, there was no evidence that permanent residence in Sweden was subject to some form of arbitrary cancellation.
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- Note 22
Agha, Sharam Pahlevan Mir v. M.C.I. (F.C.T.D., no. IMM-4282-99), Nadon, January 12, 2001.
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- Note 23
M.C.I. v. Tajdini, Sima (F.C., no. IMM-1270-06), Mactavish, March 1, 2007; 2007 FC 227. The Court upheld the RPD’s conclusion that the claimant was not asylum shopping. She did not voluntarily renounce her status in order to seek asylum elsewhere. She had left the U.S. in 1996, returning to her native Iran, and travelled to Canada in 2004 to escape from problems that occurred in Iran several years after her return there.
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- Note 24
Wangden, Tenzin v. M.C.I. (F.C.A. no., A-607-08), Evans, Sharlow, Ryer, November 23, 2009; 2009 FCA 344.
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- Note 25
Molano Fonnoll, German Guillermo v. M.C.I. (F.C., no. IMM-2626-11), Scott, December 12, 2011; 2011 FC 1461. In a different context than “withholding of removal” the Court rejected the applicant’s argument based on issue estoppel that in a case where the Minister finds a person to be eligible to make a claim, the RPD is bound by that finding and cannot exclude the person. See
Omar, Weli Abdikadir v. M.C.I. (F.C. no., IMM-4929-16, Mactavish, May 8, 2017; 2017 FC 458.
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- Note 26
M.C.I. v. Choubak (a.k.a. Choovak),
Mehrnaz Joline (F.C., no. IMM-3462-05), Blanchard, April 26, 2006; 2006 FC 521.
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- Note 27
Shamlou, Pasha v. M.C.I. (F.C.T.D, no. IMM-4967-94), Teitelbaum, November 15, 1995. Reported:
Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.). In that case, the claimant, a citizen of Iran, had lived in Mexico for an extended period and obtained a travel and identity document which allowed him to leave and re-enter Mexico. The claimant allowed his Mexican travel documents to lapse when he unsuccessfully sought residence in the U.S.A. before coming to Canada.
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- Note 28
Nepete, Firmino Domingos v. M.C.I. (F.C.T.D., no. IMM-4471-99), Heneghan, October 11, 2000.
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- Note 29
Shahpari, Khadijeh v. M.C.I. (F.C.T.D., no. IMM-2327-97), Rothstein, April 3, 1998. Reported:
Shahpari v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 139 (F.C.T.D.). This case was applied in
Kamana, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999;
Nepete, supra, footnote 28;
Juzbasevs, Rafaels v. M.C.I. (F.C.T.D., no. IMM-3415-00), McKeown, March 30, 2001; 2001 FCT 262;
M.C.I. v. Choovak, Mehrnaz (F.C.T.D., no.IMM-3080-01), Rouleau, May 17, 2002; 2002 FCT 573, and
Hassanzadeh, Baharack v. M.C.I. (F.C., no. IMM-3545-03), Blais, December 18, 2003; 2003 FC 1494.
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- Note 30
Shamlou, supra, footnote 27
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- Note 31
Shahpari, supra, footnote 29.
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- Note 32
Shahhari, supra, footnote 29 ;
Nepete, supra, footnote 28.
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- Note 33
Kamana, supra, footnote 29;
Hassanzadeh, supra, footnote 29.
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- Note 34
For example, in
Osazuwa, Steven v. M.C.I. (F.C., no. IMM-846-15), Russell, February 8, 2016; 2016 FC 155, the Court noted that the RAD had concurred with the RPD that there is no requirement for benefits to be identical to those of nationals in order to engage Article 1E; they only need to be “substantially similar”.
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- Note 35
Kroon, supra, footnote 3, at 167.
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- Note 36
Kroon, supra, footnote 3, at 167. The particular rights and obligations at issue in
Kroon were discussed at considerable length by the CRDD in M92-10972/5, Gilad, Sparks, May 7, 1993. The Court itself did not delineate clearly the extent and nature of the rights and obligations which must exist at a minimum. It simply agreed with the approach taken by the CRDD in this case.
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- Note 37
Kroon, supra, footnote 3, at 168. See Atle Grahl-Madsen,
The Status of Refugees in International Law, (Leyden: A W. Sijthoff, 1966), Volume 1, pages 269-270 [out of print], and James C. Hathaway,
The Law of Refugee Status, (Toronto: Butterworths, 1991), pages 211-214. The discussion of this aspect of Article 1E exclusion in the second edition of James C. Hathaway and Michelle Foster,
The Law of Refugee Status (Cambridge University Press, 2014) is found at pages 500-509.
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- Note 38
Shamlou, supra, footnote 27, at 152.
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- Note 39
(Toronto: Butterworths, 1992), vol. 1, §8.218 at 8.204-8.205 (Issue 17/2/97).
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- Note 40
Shamlou, supra, footnote 27.
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- Note 41
Hamdan, Kadhom Abdul Hu v. M.C.I. (F.C.T.D., no. IMM-1346-96), Jerome, March 27, 1997. Reported:
Hamdan v. Canada (Minister of Citizenship and Immigration) (1997), 38 Imm. L.R. (2d) 20 (F.C.T.D.), at 23. In this case, the Court found it critical that the claimant could neither work nor access social services in the Philippines.
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- Note 42
Juzbasevs, supra, footnote 29.
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- Note 43
Kamana, supra, footnote 29.
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- Note 44
Ahmed, Nadeem Imtiaz v. M.C.I. (F.C., no. IMM-626-07), Phelan, February 15, 2008; 2008 FC 195.
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- Note 45
Kroon, supra, footnote 3, at 167-168. Quaere whether there is an internal contradiction in the judgment or whether MacKay J. might be simply suggesting that in considering whether a country is in fact an Article 1E country, the Board should consider whether the claimant faces a threat of persecution there (as opposed to considering the issue of persecution after determining the country to be an Article 1E country). See also
Shamlou, supra, footnote 27, at 142, where the Court notes that both the CRDD, in its reasons, and the respondent, in his arguments, referred to the lack of persecution in Mexico (the Article 1E country) as one of the factors taken into consideration in concluding that the claimant enjoyed most of the rights and obligations of a national in that country. The Court itself does not list this factor in its conclusions. In
Olschewski, supra, footnote 12, the Court implicitly agreed that the CRDD could in fact assess a claim against the Article 1E country. As the Court put it, “…even if I am wrong in concluding that the Article does not apply, I am nevertheless of the opinion that the Board erred in the articulation of its reasons in support of its conclusion that the [claimants] failed to establish a well-founded fear of persecution in Ukraine on the basis of religion.
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- Note 46
M.C.I. v. Choovak, supra, footnote 29. See also
Nepete, supra, footnote 28, where the Court upheld the CRDD’s finding that the claimant, an Angolan national, did not establish a well-founded fear of persecution in his country of residence (the Czech Republic). A similar approach was taken by the Court in
Juzbasevs, supra, footnote 29, and
Nwaeze, Jones Ernest Am v. M.C.I. (F.C., no. IMM-1112-09), Tremblay-Lamer, November 10, 2009; 2009 FC 1151.
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- Note 47
Omar, supra, footnote 25.
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- Note 48
Zhao, Ri Wang v. M.C.I. (F.C., no IMM-9624-03), Blanchard, August 4, 2004; 2004 FC 1059. See also the following cases where the Court upheld the RPD’s determination of the availability state protection in Article 1E countries: Li, supra, footnote 19;
Mai, supra, footnote 20;
Ramadan, supra, footnote 9; and
Dieng, Khady Kanghe et al. v. M.C.I. (FC., no. IMM-5029-12), de Montigny, April 30, 2013; 2013 FC 450.
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- Note 49
Gao, Kun Kwan. v. M.C.I. (F.C., no. IMM-10862-12), Shore, February 28, 2014; 2014 FC 202. In
Ramadan, supra, footnote 9, the Court agreed with the RPD that the Lebanese claimant had permanent resident status in Paraguay and was therefore excluded and that she had not rebutted the presumption of state protection in Paraguay (with respect to the claim of spousal abuse). And in
Shen, Jintang v. M.C.I. (F.C., no. IMM-2037-15), Phelan, January 28, 2016; 2016 FC 99, similar findings were made with respect to a Chinese claimant with status in Ecuador.
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- Note 50
Omorogie, Juan v. M.C.I. (F.C., no. IMM 2843-14), O’Keefe, November 5, 2015; 2015 FC 1255.
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