- Note 1
In a claim before the Refugee Division, it is not unusual to address various issues which form part of the assessment of the claim for Convention refugee status. These issues can include: change of circumstances in the home country; internal flight; and the application of Articles 1E or 1F of the Convention (the "exclusion clauses"). Such issues should be dealt with following the appropriate legal principles. Section 2(1) of the
Immigration Act (the "Act") provides that a person who comes within the exclusion clauses is not within the definition of Convention refugee. Similarly, the definition does not include a person who has ceased to be a Convention refugee by virtue of section 2(2) of the
Act. While these Guidelines do not deal with the application of the exclusion clauses, and for that reason there is no reference to them in the framework of analysis, it must be noted that there may be circumstances where a claimant, even though she was a civilian non-combatant, will come within the exclusion clauses, and as such will be excluded from the definition of Convention refugee.
Return to note 1 referrer
- Note 2
In paragraph 164 of the
Handbook on Procedures and Criteria for Determining Refugee Status, Office of the United Nations High Commissioner for Refugees, Geneva, January, 1988 (the "UNHCR
Handbook"), which while persuasive is not binding on the Refugee Division, it is noted that:
Persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol. They do, however, have the protection provided for in other international instruments, e.g. the Geneva Conventions of 1949 on the Protection of War Victims and the 1977 Protocol additional to the Geneva Conventions of 1949 relating to the protection of Victims of International Armed Conflicts.
In considering the intention of the drafters of the Convention, James C. Hathaway in
The Law of Refugee Status (Toronto: Butterworths, 1991) notes at
p. 185, the statement of Mr. Robinson of Israel (U.N. Doc. A/CONF.2/SR.22, at 6, July 16, 1951) as follows:
The text...obviously did not refer to refugees from natural disasters, for it was difficult to imagine that fires, flood, earthquakes or volcanic eruptions, for instance, differentiated between their victims on the grounds of race, religion, or political opinion. Nor did the text cover all man-made events. There was no provision, for example, for refugees fleeing from hostilities unless they were otherwise covered by Article 1 of the Convention. [emphasis added by Professor Hathaway]
Return to note 2 referrer
- Note 3
The underlying issue is discussed in
Refugees in Civil War Situations,
UNHCR Branch Office, Ottawa, November, 1990 where the following is set out:
It should be noted at the outset that individuals are considered refugees when they flee or remain outside a country for reasons pertinent to refugee status. Whether these reasons arise in a civil war situation, in international armed conflict or in peace time, is irrelevant.
There is nothing in the definition itself which excludes its application to persons caught up in a civil war. [emphasis added]
Return to note 3 referrer
- Note 4
See common article 3(1) of each of the four
Geneva Conventions of 1949 discussed
infra. These Guidelines relate to civilians with no direct participation in the hostilities. Where a claimant provided indirect support to combatants such as supplying food, money or shelter, these actions should not have taken the claimant outside of the category of non-combatant. Any sanction imposed, or threatened to be imposed, against the claimant would have to be considered in relation to the activity engaged in by the claimant; disproportionate punishment could be found to be persecutory as that could be found not to be a legitimate imposition of a sanction. Generally, a threat to life, liberty or security of the person is persecutory regardless of the context. (However, to be within the definition, there must be a link to a Convention ground.) On the other hand, in
Antonio, Pacato Joao
M.E.I. (F.C.T.D., IMM-1072-93), Nadon, September 27, 1994, the Court, in an Angolan claim, was not prepared to conclude that the death penalty when imposed for treason and sabotage constituted persecution.
Return to note 4 referrer
- Note 5
As noted in paragraph 51 of the
Handbook: "There is no universally accepted definition of "persecution", and various attempts to formulate such a definition have met with little success." The concept of persecution has been described on a number of occasions in Canadian case law. One such description is "the systemic and persistent infliction of threats and injury" [Rajudeen
M.E.I. (1984), 55
N.R. 129 (C.A.) at
pp. 133-4]; another description requires an element of repetition and relentlessness which an isolated incident can satisfy only in very exceptional circumstances [Valentin
M.E.I.,  3
F.C. 390 (C.A.)]. The Supreme Court of Canada has stated that persecution, although undefined in the Convention, has been ascribed the meaning of "sustained or systemic violation of basic human rights demonstrative of a failure of state protection." [Canada (Attorney General)
v. Ward,  2
S.C.R. 689 at
p. 734]. It should be noted that in
no. 92-A-6788), Nol, May 5, 1993 and
no. 92-A-7341), Joyal, September 27, 1993 the Federal Court Trial Division certified the following questions for consideration by the Federal Court of Appeal: whether persecution requires systematic and persistent acts, and whether one or two violations of basic and inalienable rights such as forced labour or beatings while in police detention is enough to constitute persecution.
Return to note 5 referrer
- Note 6
For more on this issue, see Anne F. Bayefsky,
International Human Rights Law -Use in Canadian Charter of Rights and Freedoms Litigation (Markham: Butterworths, 1992).
Return to note 6 referrer
- Note 7
Common article 3 of each of the four
Geneva Conventions of 1949 sets out the minimum conduct of each party to an armed conflict of a non-international character in all circumstances of the conflict. Where a claimant has adduced credible or trustworthy evidence that there is a reasonable chance that she would face a violation of any of the provisions in this article, a panel would need to assess whether the action constituted persecutory treatment. Violations of non-derogable rights found in common article 3 likely would lead to a finding of persecution. See also Report of the Representative of the Secretary-General, Mr. Francis Deng, submitted pursuant to Commission on Human Rights resolution 1993/95, "Legal Analysis based on the needs of Internally Displaced Persons" prepared on behalf of the American Society of International Law and the International Human Rights Law Group, Washington
U.S.A. by Janelle M. Diller, Robert K. Goldman and Cecile E.M. Meijer (Working Draft in Progress), January 30, 1995,
U.N. Doc. E/CN.4/1995/CRP.1 at
For a discussion on
Protocol II see Charles Lysaght, "The Scope of Protocol II and its Relation to common article 3 of the
Geneva Conventions of 1949 and other Human Rights Instruments",
The American University Law Review,
Vol. 33, 1983,
p. 9 and Sylvie Junod, "Additional Protocol II: History and Scope",
The American University Law Review,
Vol. 33, 1983,
In considering the impact of international instruments on the position of children in a civil war situation reference should be made to article 4(3) of
Protocol II and article 38 of the
Convention on the Rights of the Child. For more on the issue, see Ilene Cohn, "The Convention on the Rights of the Child: What it means for Children in War",
International Journal of Refugee Law,
no. 1, 1991,
Where the claim involves a fear of gender-related persecution, reference should be made to the additional international instruments described in the Chairperson's
Guidelines on Women Refugee Claimants Fearing Gender-related Persecution, Immigration and Refugee Board, Ottawa, Canada, March 9, 1993 (the "Gender Guidelines"). It may be necessary to use these Guidelines as well as the Gender Guidelines to analyze a claim of a woman fearing persecution within the context of a civil war.
Return to note 7 referrer
- Note 8
For a discussion of the approaches taken in the United States of America to the assessment of refugee claims involving civil war, see Peter Butcher, "Assessing Fear of Persecution in a War Zone",
Georgetown Immigration Law Journal,
no. 1, 1991,
p. 435. See also Michael G. Heyman, "Redefining Refugee: A Proposal for Relief for Victims of Civil Strife",
San Diego Law Review,
Vol. 24, 1987,
p. 449; T. Alexander Aleinikoff, "The Meaning of "Persecution" in
U.S. Asylum Law",
Refugee Policy - Canada and the United States (Toronto: York Lanes Press Ltd., 1991),
p. 292; Walter Kalin, "Refugees and Civil Wars: Only a Matter of Interpretation",
International Journal Of Refugee Law,
no. 3, 1991,
p. 435; and Mark R. Von Sternberg, "Political Asylum and the Law of Internal Armed Conflict: Refugee Status, Human Rights and Humanitarian Law Concerns",
International Journal Of Refugee Law,
no. 2, 1993,
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- Note 9
M.E.I.,  3
F.C. 250 (C.A.).
Return to note 9 referrer
- Note 10
Return to note 10 referrer
- Note 11
M.E.I. (1992), 156
N.R. 1 (F.C.A.), the Court determined that the appellants were merely victims of the civil war and found that there was no linkage between the harm feared and their religious status as Lebanese Christians. Lorne Waldman in
Immigration Law and Practice (Toronto: Butterworths, 1992), Issue 5-12/93, at
p. 8.45 contrasts the result in
Rizkallah to that of
M.E.I. (1983), 52
N.R. 67 (F.C.A.) in illustrating the difficulty in differentiating between a harm common to all persons living in a state of civil war and one that is linked to a Convention ground.
Return to note 11 referrer
- Note 12
Hersi, Nur Dirie
no. A-1231-91), MacGuigan, Linden, McDonald, November 4, 1993.
Return to note 12 referrer
- Note 13
Section 3(g) of the
Act recognizes that Canadian immigration policy and the rules and regulations made under the
Act should be designed and administered in a manner that fulfils Canada's international legal obligations with respect to refugees and the upholding of its humanitarian tradition with respect to the displaced and the persecuted. The definition of Convention refugee in the
Act should be interpreted in a manner consistent with these objectives.
Return to note 13 referrer
- Note 14
The Federal Court in
Hersi, Ubdi (Ubdi) Hashi
no. 92-A-6574), Joyal, May 5, 1993 agreed with the Minister's argument that:
...The evidence of the applicants themselves speaks of general and indiscriminate shelling of cities and villages. Members of various clans become the victims, whether such clans could otherwise be regarded as friends or foes of the assailants.
A similar result was reached in
M.E.I. (1993), 21
Imm. L.R. (2d) 6 (F.C.T.D.) where the Court upheld the Refugee Division decision as,
It is clear that the Refugee Division concluded that the fear felt was that felt indiscriminately by all citizens [of Somalia] as a result of the civil war and random violence, and was not related to membership in a social group. (p. 11)
M.E.I. (1994), 24
Imm. L.R. (2d) 149 (F.C.T.D.), the Court upheld a decision of the Refugee Division in which it concluded that the claimants' fear in relation to the danger from land mines was one faced indiscriminately by all people in the area notwithstanding that members of the Issaq clan may be concentrated there and form the majority in the area. It appears that the Refugee Division was not persuaded that "the mines were intended to harm only or even mainly the Issaqs living in the area of Hargeisa, and that the mines placed by a former government and not yet removed constitute grounds for fear, recognized by the Convention, of persecution by a government that is no longer in authority." (at
In a brief decision, the Federal Court of Appeal in
Shereen, Agha Agha
no. A-913-90), Mahoney, MacGuigan, Linden, March 21, 1994 held that a perceived political opinion is not to be ascribed to all individuals who find themselves victimized by government forces in a civil war even if they live in an area of insurgency. This case illustrates the need to provide supporting evidence as to targeting. The need to address the issue of targeting can be seen in Ahmed, Faisa
no. A-1017-92), Nol, November 2, 1993 and
Abdi, Jama Osman
no. A-1089-92), Simpson, November 18, 1993 where, in both cases, decisions of the Refugee Division were found to be in error due to the failure to deal with documentary evidence which supported the claimant's position that the fear felt by the claimant was not the general fear felt by all in Somalia.
Return to note 14 referrer
- Note 15
In a similar fashion, the Refugee Division has applied the concept of "differential risk" and "comparative differential risk" in the analysis of civil war claims. Due to the concerns outlined in these Guidelines, neither mode of analysis is recommended. For a review of the relevant Canadian case law and an in-depth discussion of the issue see
CRDD T93-11627, T93-11628, James, Band, March 29, 1994.
For reasons that follow the comparative approach see:
CRDD T92-05687, Davis, Thomas, February 9, 1993 (The panel found that the claimant's ethnic group, the Hazara, was not targeted differentially than any other ethnic group in Afghanistan. On judicial review, the application was allowed on consent and the negative decision set aside - IMM-836-93, Reed J., March 23, 1994. A positive determination was made on the rehearing of the claim.);
CRDD T93-09000, T93-09143, Davis, Grice, January 14, 1994 (Positive determinations were made as the panel found that members of the claimant's religious group suffer more frequently from more atrocious human rights violations differentially from any other group.); and
CRDD T93-09464, T93-09465, Davis, Wolman, January 6, 1994 (The claimants, ethnic Croatians, were found not to be Convention refugees as they failed to establish that they faced a differential risk when compared to other ethnic groups in the country. A leave application for judicial review was not filed.).
no. A-1089-92), Simpson, November 18, 1993, the Court stated at
p. 3 that: "As a general matter, when large numbers of civilians are being killed without regards to their beliefs or affiliations, it is difficult to demonstrate a fear of persecution based on a personal belief or membership in a particular group. However, this case was unusual because there was some documentary evidence which corroborated the claimant's fear of persecution at the hands of the Abgal sub-clan." This statement illustrates the need for submission of evidence which shows the targeting of the claimant and/or her group. In addition, it recognizes that even in situations where large numbers of persons suffer harm for reasons not linked to a Convention ground, targeting for a Convention ground can take place.
Return to note 15 referrer
- Note 16
Requiring a demonstration of greater hardship might mean any one of several things. To succeed, the claimant might have to establish: (i) that the claimant's, or her group's, level of risk is greater than the risk level of persons in other groups [rejected in
no. IMM-2242-94), Richard, March 24, 1995, but accepted in other decisions of the Trial Division]; or (ii) that the claimant's level of risk is greater than the risk level of other persons in the claimant's own group (rejected by the Court of Appeal in
Hersi, Nur Dirie); or (iii) that the claimant is at risk of suffering harm greater than that which threatens others.
With respect to the third alternative, the question which must be addressed by the Refugee Division is whether the treatment feared crosses the threshold of what constitutes persecution, 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. The threshold should not be raised because the claim arises out of a situation of civil war; generally, it cannot be said that something which would constitute persecution in peacetime does not meet the standard in war time. Moreover, the linkage to a Convention ground should not be negated by the mere fact that the persecution arises within the context of civil war.
Janjicek, the Federal Court Trial Division, on consent, ordered a claim remitted for a new hearing on the basis that "a Convention refugee claimant need not establish that her or his ethnic group is at greater risk than members of other ethnic groups, in accordance with the decision of the Federal Court of Appeal in
M.E.I.". However, in
no. IMM-7275-93), Nol, January 26, 1995, the Court held that it could not conclude that the Refugee Division acted unreasonably by holding that, like all Croatians, the claimant was a victim of a civil war. The Refugee Division concluded that the claimant was situated similarly to all citizens of Croatia and had not demonstrated the existence of a serious risk of persecution based on one of the reasons set out in the Convention. The claimant had been forced out of his village when it was occupied by the Serb army, and had adduced evidence of "ethnic cleansing". The Court noted that the Croats, in the spirit of revenge, were engaging in acts just as reprehensible.
Return to note 16 referrer
- Note 17
S.S.C. (1995), 28
Imm. L.R. (2d) 68 (F.C.T.D.), the Trial Division upheld a decision of the Refugee Division (CRDD T93-01998, Mojgani, Cole, March 8, 1994) in which the panel at
p. 4 concluded that:
Given the totality of the documentary evidence before us, it appears that all clans and sub-clans are both perpetrators and victims of the ongoing violence. We do not find that the claimant's clan has been differentially targeted for persecution from any other clan nor that he had been targeted any differently from any other Somali.
The claimant was found not to be a Convention refugee notwithstanding that documentary evidence described attacks on the claimant's clan. The Court did not take issue with the Refugee Division's finding that the claimant's fear was similar to that of all Somali citizens in general and arose out of the ongoing civil strife in Somalia. In particular, at
p. 72 the Court stated that:
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 (supra) indicates that this is not the purpose of the 1951 Convention.
Ali, Farhan Omar
no. A-1652-92), McKeown, June 26, 1995 where without referring to any particular passage in Isa, that decision was cited approvingly. In
Ali, the Court upheld the decision of the Refugee Division which found the claimants not to be Convention refugees as they had not shown that they were "differentially at risk of being persecuted despite the civil war situation" (at
Isa was applied in
CRDD T94-06601, T94-06602, T94-06603, T94-06604, T94-06605, T94-06606, Davis, Bubrin, August 2, 1995 where the panel in considering whether an
IFA existed for the claimants held at
p. 10 that Shi'ite Hazaras did not face "more or different difficulties in Afghanistan." (Application for leave for judicial review filed as IMM-2456-95 with leave granted.) For a similar analysis with respect to Pashtuns in Afghanistan see
CRDD T95-02614, Davis, Hope, November 24, 1995. See also,
CRDD T95-02034, Davis, Bubrin, October 13, 1995 where the Refugee Division applying a similar analysis determined that members of the Majerteen clan of the Darod tribe do not face a differential risk in Somali from other Somali citizens. (Application for leave for judicial review filed as IMM-3170-95.)
Return to note 17 referrer
- Note 18
Ali, Hassan Isse
no. IMM-39-93), MacKay, June 9, 1994, the Court notes, after referring to
Rizkallah, that Rizkallah "is not authority for concluding that the civil war situation in Somalia faces all Somalis indiscriminately" (p. 7) as held by the Refugee Division. In addition, the Refugee Division had concluded "that the situation in Somalia is basically one of civil war, and that the claimant is not targeted, individually or collectively, in some way different from the general victims of civil war." The panel had not provided an explanation related to the evidence for this determination. The Court held that the panel's decision erred in not assessing the claimant's claim to a fear of persecution because of his membership in his clan, and in not referring to the particulars of the claimant's own situation. It is suggested that the Court in this case focused on the fear as it related to a Convention ground as opposed to the "differential risk" analysis found in
Abdulle, Sadia Mohamed
no. A-1440-92), Nadon, September 16, 1993 and
Mohamud, Nasra Ali
no. A-614-92), Nadon, January 21, 1994.
In T94-05955, Rucker, Cram, March 7, 1995 (signed October 11, 1995), the Refugee Division found the claimant, a Darod/Marjerteen from Mogadishu, Somalia, to be a Convention refugee based on the clan-based fighting due to its adverse impact on him personally, and on his clan.
Return to note 18 referrer
- Note 19
See Suzanne J. Egan,
Civil War Refugees and the Issue of "Singling Out" in a State of Civil Unrest (Toronto: The Centre for Refugee Studies, 1991). See also David Matas, "Innocent Victims of Civil War as Refugees",
Vol. 22, Fall 1993,
Manitoba Law Journal,
Osman, Ashu Farah
no. IMM-1295-94), Cullen, January 25, 1995, the Court upheld the Refugee Division's finding that the claimant, a Somali women whose deceased husband was of another clan, did not have a well-founded fear of persecution by reason of her clan membership. However, the decision was overturned due to the panel's failure to consider the particular situation faced by the claimant related to her marriage which put her "at a heightened risk." In coming to its decision, the Court stated at
p. 5 that the "Board cannot hide behind the civil war situation and automatically find that claimants from Somalia are not refugees." In
no. IMM-6659-93), Gibson, November 22, 1994, the Court found that the Refugee Division erred in failing to recognise that the "applicant was personally or differentially targeted and was not simply suffering from the fear felt indiscriminately by all citizens [of Afghanistan] as a consequence of the civil war" (at
Return to note 19 referrer
- Note 20
While the membership of a claimant, who is a non-combatant, in a group which is a combatant in the civil war often forms the basis for her claim of a well-founded fear of persecution, it is clear that it is not determinative of the issue as the claimant must prove that the harm feared is linked to a Convention ground. In
Abdulle, Sadia Mohamed
no. A-1440-92), Nadon, September 16, 1993, the Court rejected the applicant's submission that membership in one of two groups involved in a two-sided conflict is determinative of the issue. The Court, applying a "differential risk" analysis, a mode of analysis not recommended in these Guidelines, required proof of targeting of the applicant or her group, an approach in accord with the Guidelines. See also
no. IMM-1141-94), Dub, January 13, 1995. The Court, in concluding that the Refugee Division was not unreasonable in holding that the claimant had not established that he would be targeted for persecution in some way different from the general victims of civil war in Somalia, noted that "the mere fact that the applicant is a member of a tribe or clan in Somalia does not necessarily imply that he has an objectively well-founded fear of persecution" (at
Return to note 20 referrer
- Note 21
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- Note 22
no. IMM-7275-93), Nol, January 26, 1995, where the Court in dismissing the application for judicial review noted that the Croats, in the spirit of revenge, were engaging in acts just as reprehensible as those committed by the Serb army.
Return to note 22 referrer
- Note 23
Dr. Joachim Henkel, Judge, German Federal Administrative Court. Excerpt from his contribution to the International Judicial Conference on Asylum Law and Procedures, London, England, November 1995, "Who is a refugee? (Refugees from civil war and other internal armed conflicts)", in section titled "Persecution versus "general consequences" of civil war" at
Return to note 23 referrer
- Note 24
M.E.I.,  2
F.C. 680 (C.A.). In
Chan, Kwong Hung
no. 23813), Major, Sopinka, Cory, Iacobucci (majority); La Forest, L'Heureux-Dub, Gonthier (dissenting), October 19, 1995, Justice Major after citing
Adjei phrased the test as follows: "The applicable test has been expressed as a "reasonable possibility" or, more appropriately in my view, as a "serious possibility"." (p. 13). Both of these terms, as well as "reasonable chance", are found in
Return to note 24 referrer
- Note 25
The claimant in such a situation might fear persecution at the hands of members of her own group for attempting to maintain neutrality in the conflict. Alternatively, her fear could emanate from groups in conflict with her group, as the claimant could be perceived to be a supporter of her own group.
As noted at
p. 750 of the decision of the Supreme Court of Canada in
Canada (Attorney General)
v. Ward,  2
S.C.R. 689: "Not just any dissent to any organization will unlock the gates to Canadian asylum; the disagreement has to be rooted in a political conviction." At
p. 749 the Court contrasted its decision in Ward with a recent United States Supreme Court disposition in
v. Elias-Zacarias, 112 S.Ct. 812 (1992), where the majority was not convinced that the claimant's motive for refusing to join an anti-government guerilla force, nor that perceived by the guerillas to be his motive, was politically based.
Return to note 25 referrer
- Note 26
Antonio, Pacato Joao
M.E.I. (F.C.T.D., IMM-1072-93), Nadon, September 27, 1994, the Court, in an Angolan claim, was not prepared to conclude that the death penalty, when imposed for treason and sabotage, constituted persecution. While providing indirect support to dissident forces may be subject to prosecution by the government, such prosecution must not be carried out in a persecutory manner.
Return to note 26 referrer
- Note 27
Where the claim involves a fear of gender-related persecution, consideration of the Chairperson's
Guidelines on Women Refugee Claimants Fearing Gender-related Persecution, Immigration and Refugee Board, Ottawa, Canada, March 9, 1993 (the "Gender Guidelines") might be required. Thus, it may be necessary to use these Guidelines as well as the
Gender Guidelines to analyze a claim of a woman fearing persecution within the context of a civil war. For a case involving a civil war situation where the panel failed to consider the
Gender Guidelines, see Hazarat, Ghulam
no. IMM-5496-93), MacKay, November 25, 1994. However, in
no. IMM-3660-94), McKeown, February 9, 1995, the Court had the following to say in a domestic violence case with respect to the
Gender Guidelines: "While the guidelines are not law, they are authorized by subsection 65(3) of the Act, and intended to be followed unless circumstances are such that a different analysis is appropriate" (p. 6). With respect to the position of children see,
supra, note 7.
Return to note 27 referrer
- Note 28
Shirwa, Mohamed Mahmoud
no. A-1290-92), Denault, December 16, 1993. Also, members of the clan that had ruled the country prior to the civil war might face persecution by reason of their clan membership.
Return to note 28 referrer
- Note 29
It is recognized that in a civil war there will be civilian casualties incidental to the fighting; while regrettable, such deaths or injuries are distinct from those resulting from an attack directed at civilian non-combatants or where the combatants show wanton disregard for the safety of civilians. Evidence of such disregard might lead the Refugee Division to find that there is a link between the persecution feared and a Convention ground. For cases illustrating this issue, see,
supra, note 14.
Return to note 29 referrer
- Note 30
M.E.I. (1994), 24
Imm. L.R. (2d) 149 (F.C.T.D.), supra, note 14. This example can be contrasted with a situation where one participant in a civil war bombs and shells an area of a town primarily inhabited by civilian non-combatants who are members of another participant in the civil war. Civilians who are not near military targets should not face direct attack by combatants. Where civilians are present in or near military targets, they may be found to have assumed the risk of death or injury incidental to attacks against such military targets.
Return to note 30 referrer
- Note 31
This can be contrasted with the intentional infliction of harm described by
Dr. Joachim Henkel. In
Abdi, Ascia Hassan
no. A-1016-92), Nol, October 27, 1994, the Court in dismissing the application, concluded that its review of the evidence did not justify its interference with the Refugee Division's finding that "members of the Darod or Hawiye tribes, including the Applicants, were subject to the same risk of random violence as the general population of Somalia" (at
Return to note 31 referrer
- Note 32
CRDD T92-03148, Miller, Shatzky, September 9, 1992, the Refugee Division determined a Bosnian Moslem to be a Convention refugee as the panel concluded that "Muslims are not merely the victims caught in the crossfire of war, but are a targeted group selected for elimination because of their religion" (p. 5).
Return to note 32 referrer
- Note 33
Return to note 33 referrer
- Note 34
Return to note 34 referrer
- Note 35
Return to note 35 referrer
- Note 36
M.E.I.,  3
F.C. 605 (C.A.). As noted at
p. 614 of the decision, the non-existence of a government cannot be an obstacle to claiming refugee status. It would be an absurd result that the greater the chaos in a given country, the less acts of persecution could be capable of founding a claim for refugee status. However, for the principle in
Zalzali to apply, the claimant must demonstrate a prospective risk of persecution. Thus, in
Roble, Abdi Burale
no. A-1101-91), Heald, Stone, McDonald, April 25, 1994, where the agent of persecution (the NSS in Somalia) was no longer a factor, the Court held at
p. 9 that "...the inability of the state to protect the [claimant] is not, in itself, a sufficient basis for his claim."
Return to note 36 referrer
- Note 37
S.S.C. (1994), 23
Imm. L.R. (2d) 225 (F.C.A.) at
p. 232, Desjardins J.A. in analyzing the situation in Peru (on the basis of the evidence filed in the particular case) stated: "Isolated cases of persons having been victimized may not reverse the presumption [of protection]. A state of profound unrest with ineffective protection for the claimant may, however, have reversed it." In
no. IMM-2489-94), Muldoon, February 2, 1995, at
p. 9, the Court goes so far as to say that while the situation in Peru due to the terrorist activities of the Shining Path is not quite one of state breakdown (as in Zalzali), it comes very close.
Return to note 37 referrer
- Note 38
p. 615 where the Court goes on to state:
The "country", the "national government", the "legitimate government", the "nominal government" will probably vary depending on the circumstances and the evidence and it would be presumptuous to attempt to give a general definition. I will simply note here that I do not rule out the possibility that there may be several established authorities in the same country which are each able to provide protection in the part of the territory controlled by them, protection which may be adequate though not necessarily perfect.
Sami, Sami Qowdan
no. A-629-92), Simpson, June 1, 1994 and
Saidi, Ahmed Abrar
no. A-749-92), Wetston, September 14, 1993 where, in each case, the Court upheld the Refugee Division's findings that protection was available in northern Somalia.
Return to note 38 referrer
- Note 39
The Supreme Court of Canada in
Ward did not discuss the standard of protection that a country needs to offer its nationals. In determining what constitutes adequate protection, the Refugee Division may consider as a factor, whether the established authority is able to provide the claimant with protection from the acts prohibited by common article 3 of the
1949 Convention. For a discussion of the appropriate standard see
v. Villafranca (1992), 18
Imm. L.R. (2d) 130 (F.C.A.);
S.S.C. (1995), 27
Imm. L.R. (2d) 88 (F.C.T.D.);
no. IMM-5519-93), Tremblay-Lamer, September 16, 1994;
S.S.C.,  1
F.C. 780 (T.D.).
Return to note 39 referrer
- Note 40
no. A-356-94), Strayer, Linden, McDonald, January 17, 1996, the Court of Appeal in answering "no" to the certified question "Is the determination of whether a claimant has a well founded fear of persecution in the area from which he or she originates a prerequisite to the consideration of an internal flight alternative?", held at
p. 2 that "while the Board may certainly do so if it chooses, there was no
need as a matter of law for the Board to decide whether there was persecution in the area of origin
as a prerequisite to the consideration of an
IFA" (emphasis added by the Court).
Return to note 40 referrer
- Note 41
M.E.I.,  1
F.C. 706 (C.A.) at
Return to note 41 referrer
- Note 42
Internal Flight: When is it an Alternative?,
IRB Legal Services, April 1994. The Commentary provides a detailed review of the issue and includes a suggested framework of analysis.
Return to note 42 referrer
- Note 43
M.E.I.,  1
F.C. 589 (C.A.).
Return to note 43 referrer
- Note 44
For an elaboration of this statement, reference should be made to
Return to note 44 referrer
- Note 45
In particular, in determining whether there is an objective basis for fearing persecution in the
IFA region, the Refugee Division must consider the personal circumstances of the claimant, and not just general evidence concerning other persons who live there.
Return to note 45 referrer
- Note 46
v. Sharbdeen (1994), 23
Imm. L.R. (2d) 300 (F.C.A.) at
Return to note 46 referrer
- Note 47
Farrah, Sahra Said
no. A-694-92), Reed, October 5, 1993 at
p. 3. See also
Megag, Sahra Abdilahi
no. A-822-92), Rothstein, December 10, 1993 at
p. 3 where the Court holds that instability alone is not the test of reasonableness. In Irene, Steve Albert
no. IMM-6275-93), Rothstein, October 6, 1994, the Court in considering an
IFA in an area controlled by one of the groups to the conflict, did not disagree with the applicant's submission that the group was not internationally recognized, had lost territory, was not an established force in the country (Liberia) and the applicant could not reasonably claim protection from that group. In those circumstances, the Court rejected the Refugee Division's finding that an
Return to note 47 referrer
- Note 48
The Trial Division has specifically addressed the issue of at what point in time
IFA is to be considered. In
M.C.I. (1995), 29
Imm. L.R. (2d) 55 (F.C.T.D.) where the claimants' home town had been surrounded by opposing Serbian forces, the Court commented that the claimants "would not be required to go from their home town to the safe zone of Croatia, but from wherever they were relanded upon being sent back" (p. 56).
Return to note 48 referrer
- Note 49
Act provides in section 68(3) that all proceedings before the Refugee Division shall be dealt with as informally and expeditiously as the circumstances and the considerations of fairness permit.
Return to note 49 referrer
- Note 50
In accordance with the requirements of natural justice, section 68(5) of the
Act provides that before the Refugee Division takes notice of any facts, information or opinion, other than facts that may be judicially noticed, in any proceedings, notice of its intention must be given and a reasonable opportunity to make representations with respect thereto must be afforded to the claimant (and the Minister, if present).
Return to note 50 referrer
- Note 51
In dismissing the application for judicial review in
Ahmed, Mohamed Hassan
no. A-818-92), McKeown, May 20, 1994, the Court noted that "the onus is on the applicant to show that he is similarly situated to members of a social group who suffered persecution" (at
Return to note 51 referrer
- Note 52
See also paragraphs 195 to 205. The need to ascertain and evaluate all relevant facts is reflected in some of the enhancements to the Convention refugee determination process implemented by the Refugee Division in October 1995.
Return to note 52 referrer