Chapter 4 - Grounds of persecution - Nexus

4. Grounds of persecution - Nexus

4.1. Generally

The definition of a Convention refugee states that a claimant's fear of persecution must be "by reason of" one of the five enumerated grounds - that is race, religion, nationality, membership in a particular social group and political opinion. There must be a link between the fear of persecution and one of the five grounds.^{Note 1}

The motivation for persecution may involve more than just one ground or factor. If at least one of the motives for persecution can be related to a Convention ground, the necessary link is established. What is referred to as “mixed motive doctrine” has been explained as follows:

[…] If one of the motivations of the agent of persecution is race but only in combination with another factor, how could that not be sufficient to meet the requirements of section 96 of the IRPA? After all, section 96 of the IRPA as written, is not to be interpreted in a narrow restrictive fashion: its purpose, as outlined, is to address fear of persecution and to protect any person who suffers from persecution based on race, religion, nationality, membership in a particular social group or political opinion.[…]^{Note 2}

In other words, the necessary nexus can be found when one (or more) of the Convention grounds is a contributing factor for persecution. For example, extortionists, whose motive is criminal, may target persons whose race, religion or imputed political opinions make them less likely to be able to access protection.^{Note 3}

The relevant questions in analyzing s. 96 and s. 97 of IRPA are different. In particular, in Alhezma^{Note 4} the Court noted that the comparative analysis that may be done for s. 97 is not part of the analysis for persecution based on a Convention ground:

It is evident […] that the RPD, in its section 96 analysis, sought a degree of personal risk to the claimant which exceeded the risk to Palestinians in general. Such an approach is appropriate to a section 97 analysis. The question is not whether [the claimant] is more at risk than anyone else, but whether the persecution she would face upon returning to the West Bank is based upon a Convention ground, such that she merits refugee protection.

It is for the Refugee Protection Division to determine the ground, if any, applicable to the claimant's fear of persecution^{Note 5}. This is consistent with the overall obligation of the Refugee Division to determine whether the claimant is a Convention refugee. If a claimant identifies the ground(s) which they think are applicable to the claim, the Refugee Division is not limited to considering only those grounds and must consider the grounds of the definition as raised by the evidence in making their determination^{Note 6}. However, once the Refugee Division has found that the claimant's fear of persecution is by reason of one of the grounds it is not necessary to go on to consider all of the other grounds.

When determining the applicable grounds, the relevant consideration is the perception of the persecutor. The persecutor may perceive that the claimant is a member of a certain race, nationality, religion, or particular social group or holds a certain political opinion and the claimant may face a reasonable chance of persecution because of that perception. This perception may not conform to the real situation.^{Note 7}

Reference should be made to the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution issued by the Chairperson pursuant to section 65(3) of the Immigration Act, updated November 25, 1996, as continued in effect on June 28, 2002 under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act for an analysis of the grounds as they relate to gender-related persecution.^{Note 8}

Reference should also be made to the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression issued by the Chairperson under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act on May 1, 2017 when analyzing claims related to sexual orientation and gender identity and expression.

Claimants cannot be asked to renounce their deeply held beliefs or refrain from exercising their fundamental rights to avoid persecution and as a price to live in security. It is precisely to avoid this result that state parties have agreed to the United Nations Convention Relating to the Status of Refugees.^{Note 9}

4.2. Race

There is currently no Federal Court jurisprudence that provides a detailed analysis of this ground of persecution. Reference should be made to the UNHCR Handbook, at paragraphs 68 to 70, for a description of this ground. According to the Handbook, "race … has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as 'races' in the common usage." (paragraph 68)^{Note 10}

The Court of Appeal has said that where race is one of the defining elements of a group to which the claimant belongs (and fears persecution on account of) then the ground of persecution is race. It is not necessary to look at other grounds.^{Note 11} Failing to consider race when it is alleged to be a ground of persecution is an error.^{Note 12}

It is an error for the Board not to consider the issue of whether a claimant has become a “soft target” for persecution at the hands of criminals because of police racism against the claimant’s group.^{Note 13}

4.3. Nationality

This ground is discussed in the UNHCR Handbook at paragraphs 74 to 76. The Handbook points out that "nationality" in this case encompasses not only "citizenship" but it refers also to ethnic or linguistic groups.^{Note 14} According to the Handbook this ground may overlap with race.

The Court in Hanukashvili,^{Note 15} citing Lorne Waldman, noted the difference between "nationality" as a ground and "nationality" meaning citizenship. When used as one of the five grounds, “nationality” does not mean the same thing as “citizenship”; however it has the same meaning as citizenship when used in the definition of “Convention refugee” under subsection 2(1) of the Immigration Act or section 96 of the Immigration and Refugee Protection Act.

A claimant may be at risk due to race or nationality if they have a mixed ethnic background. It has long been held that it is not reasonable to expect a claimant to hide their intrinsic parts of their identities.^{Note 16}

4.4. Religion

Persecution by reason of a claimant's religion may take many forms.^{Note 17} Freedom of religion includes the right to manifest the religion in public, or private, in teaching, practice, worship and observance.^{Note 18} In the context of claims made by Chinese Christians, the Federal Court has rejected the proposition that a claimant's religious needs can be met in a state sanctioned church. It is not up to the panel to determine how and where a claimant should practice their faith.^{Note 19} Religion itself can take different manifestations.^{Note 20} As is the case with the other Convention refugee grounds, it is the perception of the persecutor that is relevant.^{Note 21}

The Supreme Court of Canada, in the context of a Charter case involving freedom of religion, defined religion as follows:

Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual's spiritual faith and integrally linked to one's definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.^{Note 22}

The Federal Court Trial Division in Kassatkine^{Note 23} considered the case of a religion which has public proselytizing as one of its tenets. In this case, proselytizing was contrary to the law. The Court stated:

A law which requires a minority of citizens to breach the principles of their religion . . . is patently persecutory. One might add, so long as these religious tenets are not unreasonable as, for example, exacting human sacrifice or the taking of prohibited drugs as a sacrament.^{Note 24}

There have been cases dealing with the issue of persecution of members of the Ahmadi religion in Pakistan and the application of Ordinance XX. A decision of the RAD on this topic has been identified as a Jurisprudential Guide (JG).^{Note 25} For a full discussion of the JG and the jurisprudence on the nature of the enforcement of Ordinance XX see Chapter 9.

The UNHCR Handbook can be referred to at paragraphs 71 to 73.

4.5. Particular social group

The Supreme Court of Canada in Ward provided an interpretative foundation for the meaning of the ground of "membership in a particular social group". Mr. Justice La Forest stated as follows:

The meaning assigned to "particular social group" in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative.^{Note 26}

The Court further indicated that the tests proposed in Mayers,^{Note 27}Cheung,^{Note 28} and Matter of Acosta^{Note 29} provided a "good working rule" to achieve the above-noted result and identified three possible categories of particular social groups that emerge from these tests:

Groups defined by an innate or unchangeable characteristic;
groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association;^{Note 30} and
groups associated by a former voluntary status, unalterable due to its historical permanence.^{Note 31}

The Court went on to state:

The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation,^{Note 32} while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person.^{Note 33}

In setting out three possible categories of particular social groups, the Court made it clear that not every group of persons will be within the Convention refugee definition. There are some groups from which the claimant can, and should be expected to, dissociate him- or herself because membership therein is not fundamental to the human dignity of the claimant.^{Note 34}

A distinction must be drawn between a claimant who fears persecution because of what he or she does as an individual and a claimant who fears persecution because of his or her membership in a particular social group. It is the membership in the group which must be the cause of the persecution and not the individual activities of the claimant.^{Note 35} This is sometimes referred to as the "is versus does" distinction.

A particular social group cannot be defined solely by the fact that a group of persons are objects of persecution.^{Note 36} The rationale for this proposition is that the Convention refugee definition requires that the persecution be "by reason of" one of the grounds, including particular social group.^{Note 37}

Subsequent to the Ward decision, the Court of Appeal in Chan^{Note 38} interpreted the three possible categories of particular social groups. The majority of the Court, in concurring judgments, held that the terms "voluntary association" and "voluntary status" referred to in Ward categories two and three (above) refer to active or formal association. The dissenting judgment disagreed with this interpretation.

Chan was then heard by the Supreme Court of Canada^{Note 39} and the majority of the Supreme Court concluded that the claimant had failed to present evidence on the objective element as to the well-foundedness of his fear of persecution (forced sterilization).^{Note 40} The majority did not address the issue of particular social group or whether there was an applicable ground in this case.^{Note 41} The dissenting judgment by Mr. Justice La Forest, however, dealt extensively with the ground of particular social group. The minority's comments on this issue 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. Mr. Justice La Forest (who wrote the judgment in Ward) clarified some of the issues which were raised in Ward:

The Ward decision enunciated a working rule and "not an unyielding deterministic approach to resolving whether a refugee claimant could be classified within a particular social group."^{Note 42} The paramount consideration in determining a particular social group is the "general underlying themes of the defence of human rights and anti-discrimination."^{Note 43}
The "is versus does" distinction was not intended to replace the Ward categories. There must be proper consideration of the context in which the claim arose.^{Note 44}
With respect to category two of the Ward categories and the position taken by the Court of Appeal in Chan that this category required an active association between members of the group, Mr. Justice La Forest stated: "In order to avoid any confusion on this point let me state incontrovertibly that a refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar to him- or herself. […] the question that must be asked is whether the appellant is voluntarily associated with a particular status for reasons so fundamental to his human dignity that he should not be forced to forsake that association. That association or group exists by virtue of a common attempt made by its members to exercise a fundamental human right."^{Note 45} (The particular group in which Mr. Chan alleged membership was “parents in China with more than one child who disagree with forced sterilization”.)

Some examples of potential particular social groups discussed in the jurisprudence include the following:

the family;^{Note 46}
homosexuals (sexual orientation);^{Note 47}
trade unions;^{Note 48}
the poor;^{Note 49}
wealthy persons or landlords were found by the Trial Division not to be particular social groups.^{Note 50} The Court focused on the fact that these groups were no longer being persecuted although they had been in the past.^{Note 51}
women subject to domestic abuse;^{Note 52}
men who become victims of abuse at the hands of former abusive partners of their spouse because of that relationship with their spouse;^{Note 53}
women forced into marriage without their consent;^{Note 54}
Haitian returnees (citizens who return to Haiti after a stay abroad) were found not to constitute a particular social group within the meaning of section 96 of the Act.^{Note 55}
women subject to circumcision;^{Note 56}
persons subject to forced sterilization;^{Note 57}
children of police officers who are anti-terrorist supporters;^{Note 58}
former fellow municipal employees terrified and terrorized by what they know about the ruthless, criminal mayor;^{Note 59}
uneducated girls in a country where girls are not allowed to go to school;^{Note 60}
single women without male protection ^{Note 61} (in some countries and circumstances);
"law abiding citizens" was held not to be a particular social group;^{Note 62}
persons suffering from mental^{Note 63} or physical illness;^{Note 64}
"abandoned children."^{Note 65}

4.6. Political opinion

A broad and general interpretation of political opinion is "any opinion on any matter in which the machinery of state^{Note 66}, government, and policy may be engaged"^{Note 67}. However, this does not mean that only political opinions regarding the state will be relevant. As noted in Chapter 3, there is no requirement that the agent of persecution be the state.

The Supreme Court of Canada in Ward stated that there are two refinements to political opinion within the context of the Convention refugee definition.

The first is that "the political opinion at issue need not have been expressed outright."^{Note 68} The Court recognized that the claimant may not always articulate his or her beliefs and that the political opinion will be perceived from the claimant's actions or otherwise imputed to him or her.^{Note 69}

The second refinement in Ward is that the "political opinion ascribed to the claimant" by the persecutor "need not necessarily conform to the claimant's true beliefs."^{Note 70} In other words, the political opinion may not be correctly attributed to the claimant.

The Supreme Court makes it clear that it is the perception of the persecutor which is relevant. The question to be answered is: does the agent of persecution consider the claimant's conduct to be political or does it attribute political activities to him or her?^{Note 71}

In Zhou,^{Note 72} the Court found that the RPD erred when it seemed to say that political opinion can be assessed objectively (the RPD found that the claimant’s behavior, shouting insults at officials in the Family Planning Office, did not approach the level of political opinion necessary to warrant consideration). In the Court’s view, the relevant question is subjective: whether the relevant agent of persecution would view the claimant’s statements as political and persecute him on the basis.

In contrast, in Ni,^{Note 73} the RPD found that if the claimant were arrested in China, he faced prosecution due to his resistance to the expropriation of his home. He would not face persecution. The RPD accepted that the claimant shouted slogans against the government and called the government corrupt but found that such actions would not lead to persecution. The findings were premised on the Applicant’s specific actions, such as his participation as one of many in the opposition, his lack of an established leadership role and the fact that his comments were made in the heat of the moment. His evidence did not demonstrate opposition to the Chinese government’s expropriation law and policy generally. It was limited to the specific issue of compensation.

The claimant does not have to belong to a political party^{Note 74} nor does the claimant have to belong to a group that has an official title, office or status^{Note 75} nor does the claimant have to have a high-profile within a political party^{Note 76} in order for there to be a determination that the claimant's fear of persecution is by reason of political opinion. A claimant’s risk of future persecution linked to political opinion may be established by documentary evidence of similarly situated persons even if the claimant cannot demonstrate that past incidents were connected to political opinion.^{Note 77} The relevant issue is the persecutor's perception of the group and its activities, or of the individual and his or her activities.^{Note 78}

In Marino Gonzalez,^{Note 79} a case where the Court held that the RPD applied an incorrect test to political opinion, the Court, reviewing the case law on the subject, reiterated the following principles (among others): an individual knowledge of or opposition to corruption may constitute political opinion; the meaning of “political opinion” is not confined to partisan opinion or membership in parties and movements and does not refer exclusively to national, political or municipal state politics; and refusal to participate in corruption may constitute the expression of a political opinion.

For a discussion of the ground of political opinion as it relates to laws of general application and, in particular, the dress code and military service (evasion/desertion) laws, see Chapter 9.

In Colmenares,^{Note 80} the Court held that a victim of politically motivated persecution is not required to abandon his commitment to political activism in order to live safely in his country.

In Makala,^{Note 81} the Trial Division considered the applicability of paragraph 82 of the UNHCR Handbook, which states:

There may, however, also be situations in which the applicant has not given any expression to his opinions. Due to the strength of his convictions, however, it may be reasonable to assume that his opinions will sooner or later find expression and that the applicant will, as a result, come into conflict with the authorities. Where this can reasonably be assumed, the applicant can be considered to have fear of persecution for reason of political opinion.

The Court found that the CRDD’s erroneous finding that the claimant was not politically involved while in Congo may have affected its appreciation of the strength of the claimant’s political convictions and potential actions against the government upon return to Congo.

4.7. Victims of criminality and nexus to grounds

In a number of cases, the Trial Division has held that victims of crime, corruption^{Note 82} or vendettas, including blood feuds^{Note 83} generally cannot establish a link between their fear of persecution and one of the five grounds in the definition.^{Note 84}

However, these cases must be read with caution in light of the Federal Court of Appeal decision in Klinko,^{Note 85} where the Court answered in the affirmative the following certified question:

Does the making of a public complaint about widespread corrupt conduct by customs and police officials to a regional governing authority, and thereafter, the complainant suffering persecution on this account, when the corrupt conduct is not officially sanctioned, condoned or supported by the state, constitute an expression of political opinion as that term is understood in the definition of Convention refugee in subsection 2(1) of the Immigration Act?

The Court found that given the widespread government corruption in the Ukraine ("where the corrupt elements so permeate the government as to be part of its very fabric"), the claimant's denunciation of the existing corruption constituted an expression of political opinion.

Although the opposition to corruption and criminality can, in the circumstances outlined in Klinko, be characterized as an expression of political opinion, the existence of a political opinion, and therefore nexus to a Convention ground, is fact-driven and must be determined on the basis of the evidence provided in each particular case.

In general, an opinion expressed in opposition to a criminal organization will not provide a nexus on the basis of political opinion unless the evidence shows the claimant’s opposition is rooted in political conviction.^{Note 86} Similarly, opposition to corruption or criminality may constitute a perceived political opinion when it can be seen to challenge the state apparatus.^{Note 87}

A claimant’s exposure of corruption or opposition to crime will not generally place him or her in a particular social group.^{Note 88} A claimant who refuses to participate in crime as a matter of conscience is not a member of a political group.^{Note 89} However, in some cases, the grounds of political opinion or particular social group can provide a nexus where the claimant fears persecution as a result of criminal activity.^{Note 90}

Persons who fear becoming targets of crime because they are perceived to have wealth have been found by the Federal Court not to be members of a particular social group.^{Note 91} The Court reasoned that as a group, people who are perceived to be wealthy are not marginalized; rather they are more frequent targets of criminal activity. The perception of wealth is insufficient to sustain the position that persons returning from abroad constitute a social group. It is clear from Ward that protection afforded under the Convention is intended to provide protection on the grounds of human rights and anti-discrimination considerations and not general criminality.

In Soimin,^{Note 92} a Haitian woman alleged a fear of rape based on her membership in a particular social group, "women in Haiti who may be targeted by criminals on the basis of her sex." The Court upheld the RPD finding that the violence feared by the claimant was a result of widespread generalized criminality in Haiti and not discriminatory targeting of women in particular. The harm feared was criminal in nature and had no nexus to the Convention refugee definition. However, more recently the Court arrived at a different conclusion in Dezameau^{Note 93} and Josile,^{Note 94} also claims made by Haitian women claiming a fear of persecution in the form of sexual violence. In these cases, the Court cited the principle in Ward that "gender" can provide the basis for a particular social group. The Court also cited jurisprudence from the Supreme Court of Canada in support of the proposition that rape and other forms of sexual assault are crimes grounded in the status of women in society.^{Note 95}

In Dezameau, the Court found that the error of the Board was to use its finding of a widespread risk of violence in Haitian society to rebut the assertion that there is a nexus between the applicant's social group and the risk of rape. A finding of generality^{Note 96} does not prohibit a finding of persecution on the basis of one of the Convention grounds. This is explicitly set out in the IRB's Guideline 4.

Based on a review of Canadian law and the documentary evidence, the Court in Josile concluded that the notion that rape is an act of violence faced generally by all Haitians is untenable; rather the risk of rape was grounded in the applicant’s membership in a particular social group, that of Haitian women.

In Mancia,^{Note 97} the Court noted that a in a gender-based claim, a claimant’s burden is to satisfy the Board that she was targeted as a woman. “Stated differently, claimant needs to demonstrate that she would not have been attacked but for the fact that she was a woman.”

4.8. Civil war and other prevalent conflicts

This Section 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.

4.8.1. Generally

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 98} which sets out four general principles:^{Note 99}

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):^{Note 100}

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,^{Note 101} 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.^{Note 102}

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.^{Note 103}

4.8.2. 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.^{Note 104} The Guidelines adopt the non-comparative approach. What follows explains the development of the jurisprudence.

4.8.2.1. 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,^{Note 105} 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.^{Note 106}

In other cases, the Court took the position that a claimant who belongs to a group^{Note 107} 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.^{Note 108} 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.^{Note 109} 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.

4.8.2.2. The Non-Comparative Approach is the Legal and Preferred Test

In Ali, Shaysta-Ameer,^{Note 110} 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 CivilWar Situations.^{Note 111} 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,^{Note 112} 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 to serious human rights violations this clearly constitutes persecution”.

4.9. Indirect persecution and family unity

The concept of “indirect persecution” was described by Mr. Justice Jerome in Bhatti^{Note 113} 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.”^{Note 114} Furthermore, in Casetellanos,^{Note 115} 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.”^{Note 116}

The Court of Appeal dismissed the appeal in Pour-Shariati,^{Note 117} 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.^{Note 118}

Following Pour-Shariati, Muldoon, J. rejected the concept of indirect persecution in Cetinkaya^{Note 119} 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”.^{Note 120} 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, they take 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.^{Note 121}

In Akinfolajimi^{Note 122} the Court reviewed a decision wherein the RPD had accepted the principle claimant but had rejected the joined claims of his family. The Court stated the following about the principle of family unity:

[5] I am mindful that the effect of the RPD decision is the separation of the family. However, the IRPA objective of family unification is one of a number of objectives the IRPA seeks to advance over a wide variety of contexts. It is not a governing factor when determining if an individual claimant is a Convention refugee or person in need of protection pursuant to sections 96 and 97. Instead the IRPA provides other mechanisms that address the objective of family unification, mechanisms that might well be available to the applicants.
…
[30] As discussed at the outset of this Judgment, family unification is a stated objective of the IRPA and decisions within the IRPA context that lead to a different result are unquestionably difficult. However, protection claims must be assessed individually and on their own merit on the basis of the definitions set out in sections 96 and 97 of the IRPA.

While “family unity” is not a concept recognized by Canadian refugee law,^{Note 123} ”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.”^{Note 124}

Notes

Note 1

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85 at 732; Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (C.A.), at 689-690 and 692-693.

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Note 2

M.C.I. v. B344 (F.C. no., IMM-7817-12), Noël, May 8, 2013; 2013 FC 447, at para 37. See also paras 38-41. The Court noted that the mixed motive doctrine was first recognized by the Court of Appeal in Zhu v. M.E.I., (F.C.A. no., A-1017-91), MacGuigan, Linden, Robertson, January 28, 1994 where the Court of Appeal concluded that the CRDD erred in setting up an opposition between friendship and political motivation as the motives of the claimant, who assisted in smuggling two students involved in the Chinese pro-democracy movement to Hong Kong primarily because of friendship. The motives were “mixed” rather than “conflicting”. It is sufficient if one of the motives is political. The doctrine has since been applied by the Federal Court in many decisions.

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Note 3

In Kutaladze, Levane v. M.C.I. (F.C., no. IMM-7861-11), Shore, May 23, 2012; 2012 FC 627, the Court held that documentary evidence and testimony required the RPD to conduct a more in-depth analysis of the claimant’s allegation that the reason he was extorted and accused of being a spy was because of his political opinion.

See also Shahiraj, Narender Singh v. M.C.I. (F.C.T.D., no. IMM-3427-00), McKeown, May 9, 2001 where the Court held that the CRDD erred in finding no nexus because, after arresting and torturing the claimant, the police would release him upon payment of a bribe. The evidence showed that police targeted the claimant based at least partially on his imputed political ties to militants.

In Katwaru, Shivanand Kumar v. M.C.I. (F.C., no. IMM-3368-06), Teitelbaum, June 8, 2007; 2007 FC 612, the Court rejected the argument that the RPD failed to consider whether the agent of persecution, an Afro-Guyanese school yard bully had mixed motives (i.e. criminal and racial) for attacking the Indo-Guyanese claimant. Since the RPD concluded that there was no evidence that the claimant’s persecutor was racially-motivated, there was no basis on which to make a determination that there were mixed motives.

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Note 4

Alhezma, Lotifya K.Q. v. M.C.I. (F.C., no. IMM-2087-16), Bell, November 24, 2016 (delivered orally on November 17, 2016); 2016 FC 1300, at para 18.

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Note 5

Ward, supra, note 1, at 745 cites the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, September 1979, paragraph 67. As explained in M.C.I. v. A068 (F.C., no. IMM-8485-12), Gleason, November 19, 2013; 2013 FC 1119, at para 37 “Ward establishes that where the facts support a well-founded fear of persecution based on political opinion, a reviewing court is free to consider that ground even if the parties had framed the issue in the context of membership in a particular social group.”

In Singh, Sarbit v. M.C.I. (F.C., no. IMM-1157-07), Beaudry, October 1, 2007; 2007 FC 978, the Court overturned the RPD’s decision that since the claimant did not originally make his claim under section 96, but only under subsection 97(1), there were no grounds for the claim for refugee protection under section 96. The Court found that the claim was not solely based on a matter of revenge. The aspect of the claimant’s story regarding the terrorist organization Babar Khalsa should have been analyzed (F.C., no. IMM-1157-07), Beaudry, October 1, 2007; 2007 FC 978, the Court overturned the RPD’s decision that since the claimant did not originally make his claim under section 96, but only under subsection 97(1), there were no grounds for the claim for refugee protection under section 96. The Court found that the claim was not solely based on a matter of revenge. The aspect of the claimant’s story regarding the terrorist organization Babar Khalsa should have been analyzed under section 96.

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Note 6

In Morenakang Mmono, Ruth v. M.C.I. (F.C., no. IMM-4015-12), Phelan, March 5, 2013; 2013 FC 219, the Court noted that while the RPD is not required to make a claimant’s case or advance grounds for a claim that were not raised, the Court of Appeal does require the Board to consider issues that obviously emerge from the evidence.

As noted by the Court of Appeal in Guajardo-Espinoza [1993] F.C.J., no. 797 (FCA), at para 5:

As this Court recently said in Pierre-Louis [sic] v. M.E.I., [F.C.A., no. A-1264-91, April 29, 1993] the Refugee Division cannot be faulted for not deciding an issue that had not been argued and that did not emerge perceptibly from the evidence presented as a whole.[…] Saying the contrary would lead to a real hide-and-seek or guessing game and oblige the Refugee Division to undertake interminable investigations to eliminate reasons that did not apply in any case, that no one had raised and that the evidence did not support in any way, to say nothing of frivolous and pointless appeals that would certainly follow.

In Pardo Quitian v. M.C.I., 2020 FC 846, at paras 53-54, the Board erred by failing to consider the applicant’s gender-based claim. While not clearly articulated as a basis of the claim, the documentary evidence confirmed that sexual violence was a feature of the conflict in Colombia, and the Applicant’s testimony was that she was twice raped by members of the Black Eagles looking for her brother.

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Note 7

Ward, supra, note 1, at 747. In Gholami, Abbas v. M.C.I. (F.C., no. IMM-1203-14), O’Reilly, December 16, 2014; 2014 FC 1223, while the Board recognized that based on the documentary evidence Arabs face widespread discrimination in Iran, it determined that because the principal claimant is ethnically Persian, he and the rest of the family would be perceived as being Persian and therefore not persecuted. The Court held that the Board failed to recognize that the applicants would likely be regarded as Arabs in Iran, given their language, upbringing, and family history in Kuwait, where they spoke, worked and attended school in Arabic.

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Note 8

In Narvaez v. Canada (Minister of Citizenship and Immigration), [1995] 2 F.C. 55 (T.D.), at 62, the Court stated: “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.”

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Note 9

See Gur, Irem v. M.C.I. (F.C., no. IMM-6294-11), de Montigny, August 14, 2012; 2012 FC 992, at para 22 where the Court noted that a Kurdish claimant of the Alevi faith cannot be asked to renounce her faith and language in order to live peacefully. A person cannot be asked to renounce his or her deeply held beliefs or to stop exercising his or her fundamental rights in order to avoid persecution and as a price to pay to live in security.

See also Antoine, Belinda v. M.C.I. (F.C., no. IMM-4967-14), Fothergill, June 26, 2015; 2015 FC 795, at para 23 where the PRRA Officer had held that in order to avoid persecution, the applicant must continue to avoid an overtly lesbian lifestyle. The Court held that the expectation that an individual should practice discretion with respect to her sexual orientation is perverse, as it requires the individual to repress an immutable characteristic.

In V.S. v. M.C.I. (F.C., no. IMM-7865-14), Barnes, October 7, 2015; 2015 FC 1150, the Court held that the immigration officer erred by assuming that the hardship (i.e. risk) confronting the applicant upon return to her country could be easily managed by suppression of her sexual identity. In the Court’s words, that view is, quite simply, insensitive and wrong.

The same principle applies to political opinion: see Colmenares, Jimmy Sinohe Pimentel v. M.C.I. (F.C., no. IMM-5417-05), Barnes, June 14, 2006, 2006 FC 749, at para 14; and to religion, see: Mohebbi, Hadi v. M.C.I. (F.C., no. IMM-3755-13), Harrington, February 26, 2014; 2014 FC 182, at para 10.

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Note 10

For example, Tamil ethnicity has been recognized as being linked to the ground of race in, among other cases, M.C.I. v. B377 (F.C. no. IMM-6116-12), Blanchard, May 8, 2013; 2013 FC 320 and Gunaratnam, Thusheepan v. M.C.I. (F.C., no. IMM-4854-13), Russell, March 20, 2015; 2015 FC 358.

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Note 11

Veeravagu, Uthaya Kumar v. M.E.I. (F.C.A., no. A-630-89), Hugessen, Desjardins, Henry, May 27, 1992, at 2.

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Note 12

Chace Reveron, Dennys Jesus v. M.C.I., 2020 FC 1114, at paras 28-29.

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Note 13

Cao, Jieling v. M.C.I. (F.C., no. IMM-1050-16), Bell, December 20, 2016; 2016 FC 1393, at para 17.

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Note 14

The Supreme Court of Canada pointed out in R. v. Cook [1998] 2 S.C.R. 597, at para 42, that, although the terms “nationality” and “citizenship” are often used as if they were synonymous, the principle of nationality is much broader in scope than the legal status of citizenship. In M.C.I. v. A25 (F.C., no. IMM-11547-12), Phelan, January 6, 2014; 2014 FC 4, the Federal Court upheld as reasonable a decision of the RPD which granted refugee status, in part, on the basis of the claimant’s “nationality” used in the sense of race/ethnicity, as well as the traditional sense of nationality.

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Note 15

Hanukashvili, Valeri v. M.C.I. (F.C.T.D., no. IMM-1732-96), Pinard, March 27, 1997. Although Israel did not recognize the claimants as having Jewish nationality, they were citizens of Israel and as such the CRDD had properly considered the claims as being against Israel, the country of nationality pursuant to section 2(1) of the Act. The Court cited Hanukashvili in Abedalaziz, Rami Bahjat Yah v. M.C.I. (F.C., no. IMM-7531-10), Shore, September 9, 2011; 2011 FC 1066, at para 29 when it stated that “nationality” as used in the definitions of Convention refugee and person in need of protection (sections 96 and 97 of the IRPA), means citizenship in a particular country.

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Note 16

Soos v. Canada (Citizenship and Immigration), 2019 FC 455, at paras 24-25. The Board failed to support its conclusion that the minor claimants would face persecution because they were “only half Roma.” Their evidence was that they identified as Roma and were identified by others due to appearance, cultural indicators and dress. Implicit in this finding was an expectation that the claimants would hide their ethnic identity. The Court noted that it is trite law that failed claimants cannot be expected to repress an innate characteristic or hide a fundamental part of their identity. See also: Akpojiyovwi v Canada (Citizenship and Immigration), 2018 FC 745, at para 9.

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Note 17

In Reul, Jose Alonso Najera v. M.C.I. (F.C.T.D., no. IMM-326-00), Gibson, October 2, 2000, the applicants were a husband and wife and their children. They feared persecution by siblings of the husband, the principal applicant. Both he and his mother were Jehovah’s Witnesses when their mother refused a blood transfusion and died, the siblings accused the principal applicant of causing her death and threatened him and his family. The CRDD found that the fear was based on a family dispute, not on a Convention ground. The Court was satisfied that the applicants had established a subjectively and objectively well-founded fear of persecution in Mexico on the ground of religious belief.

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Note 18

Fosu, Monsieur Kwaku v. M.E.I. (F.C.T.D., no. A-35-93), Denault, November 16, 1994. Reported: Fosu v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 95 (F.C.T.D.), at 97, where the Court adopted the UNHCR Handbook’s interpretation of freedom of religion.

See also Chabira, Brahim v. M.E.I. (F.C.T.D., no. IMM-3165-93), Denault, February 2, 1994. Reported: Chabira v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 75 (F.C.T.D.), where the claimant was persecuted for offending against his girlfriend’s Islamic mores.

In Bediako, Isaac v. S.G.C. (F.C.T.D., no. IMM-2701-94), Gibson, February 22, 1995, the Court refers to articles 18(3) and 19(3) of the Universal Declaration of Human Rights which deal with justified restrictions on religious practices.

In Mu, Pei Hua v. M.C.I. (F.C., no. IMM-9408-04), Harrington, November 17, 2004; 2004 FC 1613, the claimant’s evidence was that Falun Gong prescribes “group” practice for its practitioners. The Court stated that giving public witness is a fundamental part of many religions and that the decision of the Supreme Court of Canada in Syndicat Northcrest (see infra, note 22), expands the concept of public religious acts, not restricts it. The specific manner in which an individual gives effect to their religious beliefs is a valid consideration.

In Saiedy, Abbas v. M.C.I. (F.C., no. IMM-9198-04), Gauthier, October 6, 2005; 2005 FC 1367, the applicant, a citizen of Iran, claimed a fear of persecution based on being a Muslim convert to Christianity. The Court upheld the RPD’s finding that regardless of whether he genuinely converted, the applicant’s evidence was that he would be discreet about his conversion and would therefore be of no interest to the authorities according to the documentary evidence. However, in Jasim, Fawzi Abdulrahm v. M.C.I., (F.C., no. IMM-3838-02), Russell, September 2, 2003; 2003 FC 1017, the Court stated that the officer’s suggestion that the applicant “refrain from proselytizing and practice his faith privately” is not tenable. That is not a choice an individual should have to make.

In Mohebbi, supra, note 9, the Court found that the RPD had essentially concluded that the applicant would have to be discreet in Iran. However, the applicant alleged he was an evangelical Christian whose duty it was to spread the Good News of the Gospel. The Court held it was not for the panel to determine how a person should practice his or her religion.

In Zhou, Guo Heng v. M.C.I. (F.C., no. IMM-1674-09), de Montigny, November 25, 2009; 2009 FC 1210, the Court noted that the RPD had erred in equating the possibility of religious persecution with the risk of being raided, arrested or jailed. This understanding was limited and did not take into account the public dimension of religious freedom.

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Note 19

Zhu, Qiao Ying v. M.C.I. (F.C., no. IMM-589-08), Zinn, September 23, 2008; 2008 FC 1066. See also Zhang, Zhi Jun v. M.C.I. (F.C., no. IMM-369-09), O’Keefe, January 6, 2010; 2010 FC 9, and Chen, Yu Jing v. M.C.I. (F.C., no. IMM-3627-09), Mosley, March 5, 2010; 2010 FC 258, which illustrate the same principle. However, in Li, Chun v. M.C.I. (F.C. no. IMM-984-18), Gleeson, October 2, 2018; 2018 FC 982 the Court upheld an RPD decision rejecting the claim of a Chinese citizen wherein the RPD considered the claimant’s stated reason for not wishing to pursue the practice of his faith in a state-sponsored church, but found the evidence was insufficient to support his stated reason.

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Note 20

For example, in Nosakhare, Brown v. M.C.I. (F.C.T.D., no. IMM-5023-00), Tremblay-Lamer, July 6, 2001, the claimant, who converted to Christianity, fled Nigeria because he did not want to belong to the Ogboni cult, as his father did. According to the claimant, the cult engages in human sacrifice and cannibalism. The Court concluded that the Board erred in finding there was no nexus. The kidnapping and beating endured by the claimant were acts carried out by a religious group as a result of the religious beliefs of the claimant. However, in Oloyede, Bolaji v. M.C.I. (F.C.T.D., no. IMM-2201-00), McKeown, March 28, 2001, the Court concluded that it was open on the evidence for the Board to determine that the claimant had been subjected to cult criminal activity rather than religious persecution. In this case, the claim was on grounds of membership in a particular social group, namely, children of cult groups who refuse to follow in their fathers’ footsteps. The claimant claimed that his life was at risk if he did not join the Vampire cult. He also argued, without success, that he was a Christian and that if he returned to Nigeria he would be forced to engage in cult practices because he would not receive any state protection.

In Ajayi, Olushola Olayin v. M.C.I. (F.C., no. IMM-5146-06), Martineau, June 5, 2007; 2007 FC 594, the claimant alleged that her stepmother wanted to circumcise her and her father wanted to force her to participate in an initiation ritual. She also claimed a fear of supernatural powers and beings. The Court held that it was not patently unreasonable to conclude that the claimant had no objective fear of persecution. A person’s fear of magic or witchcraft can be real on a subjective basis, but objectively speaking, the state cannot provide effective protection against magic or witchcraft or against supernatural forces or beings from beyond. The state could concern itself with the actions of those who participate in such rituals but in this case, the claimant testified she did not fear her stepmother or father.

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Note 21

Yang, Hui Qing v. M.C.I. (F.C.T.D., no. IMM-6057-00), Dubé, September 26, 2001. In this case, the claimant feared persecution by the authorities in China due to her adherence to Falun Gong beliefs and practices. The Court held that the CRDD should have found Falun Gong to be partly a religion and partly a particular social group and that political opinion was clearly not a ground in this claim. On the basis of the reasoning in Ward which held that it is the perspective of the persecutor that is determinative, because the government of China considered Falun Gong a religion, religion was the applicable ground. Although a question was certified regarding the scope of the term “religion” used in the Convention refugee definition, no appeal was filed.

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Note 22

Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551; 2004 SCC 47.

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Note 23

Kassatkine, Serguei v. M.C.I. (F.C.T.D., no. IMM-978-95), Muldoon, August 20, 1996, at 4.

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Note 24

See also Syndicat Northcrest, supra, note 22, where the Supreme Court of Canada said (at 61) that: “No right, including freedom of religion is absolute.”

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Note 25

RAD TB7-01837, Bosveld, May 8, 2017. The decision was identified by the IRB Chairperson as a Jurisprudential Guide on July 18, 2017.

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Note 26

Ward, supra, note 1, at 739.

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Note 27

Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154 (C.A.).

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Note 28

Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.).

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Note 29

Matter of Acosta, Interim Decision 2986, 1985 WL 56042 (BIA-United States).

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Note 30

In Yang, supra, note 21, the claimant feared persecution by the authorities in China due to her adherence to Falun Gong beliefs and practices. The Court was of the view that Falun Gong would fall under the second category of “social group” in Ward, as members voluntarily associate themselves for reasons so fundamental to their human dignity that they should not be forced to forsake the association. On the other hand, in Manrique Galvan, Edgar Jacob v. M.C.I. (F.C.T.D., no. IMM-304-99), Lemieux, April 7, 2000, the claimant alleged to belong to a particular social group, an organization of taxi drivers, whose goal was to protect its members against criminals. The Refugee Division found that the organization did not qualify as a particular social group. After conducting an exhaustive review of the case law on the subject [including Matter of Acosta (Board of Immigration Appeals – United States) and Islam (House of Lords – England)], the Court concluded that the Refugee Division had properly assessed the case law in finding that the social group to which the principal applicant belonged did not correspond to any of the categories established in Ward, in particular the second category, on the ground that the right to work is fundamental but not necessarily the right to be a taxi driver in Mexico City.

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Note 31

Ward, supra, note 1, at 739. In Chekhovskiy, Alexey v. M.C.I. (F.C., no. IMM-5086-08), de Montigny, September 25, 2009; 2009 FC 970, the Court noted that to say that the claimant, as a member of the building contractors was part of a group associated by a former voluntary, unalterable status, would trivialize the notion of a particularly social group, incompatible with the analogous grounds approach developed in the context of anti-discrimination law, and inimical to the whole purpose of Convention refugee protection.

In Garcia Vasquez, Fredis Angel v. M.C.I. (F.C., no. IMM-4341-10), Scott, April 19, 2011; 2011 FC 477, the Court found it was reasonable for the RPD to conclude that the claimant’s temporary membership in the armed forces did not rise to the level of an “immutable characteristic” that would be analogous to an anti-discrimination ground.

In Alvarez, Luis Carlos Galvin v. M.C.I. (F.C. no. IMM-8496-14), Gleeson, April 11, 2016; 2016 FC 402, the RPD had concluded that being an engineer did not qualify under the third Ward category of particular social group. At para 11, the Court stated that while it was not prepared to say that a claimant’s status as an engineer could never ground a claim based on particular social group, the RPD’s finding in this case was not unreasonable. Employment and occupation have been identified as not ordinarily raising an issue relating to the themes of human rights and anti-discrimination underpinning international refugee protection.

In Godoy Cerrato, Dora Miroslava v. M.C.I. (F.C., no. IMM-7141-13), Shore, February 13, 2015; 2015 FC 179, the Court noted that the claimant’s occupation as a police officer in Honduras did not, in and of itself, amount to membership in a particular social group.

In a number of cases, the Court has noted that “Tamil males from Sri Lanka who were passengers on the MV Sun Sea” (or the Ocean Lady) do not constitute a particular social group. While having travelled on the MV Sun Sea (or Ocean Lady) places them in a group defined by a former, unalterable voluntary status, there must be something about such a group related to discrimination or human rights for it to qualify as a particular social group. See for example M.C.I. v. B380 (F.C., no. IMM-913-12), Crampton, November 19, 2012; 2012 FC 1334; M.C.I. v. B399 (F.C., no. IMM-3266-12), O’Reilly, March 12, 2013; 2013 FC 260; and M.C.I. v. A25 (F.C., no. IMM-11547-12), Phelan, January 6, 2014; 2014 FC 4. Note that the claims, depending on the facts of the case, may be grounded on other Convention reasons, for example, race, nationality or political opinion. See M.C.I. v. A068 (F.C., no. IMM-8485-12), Gleason, November 19, 2013; 2013 FC 1119 for a thorough review of the case law on this topic.

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Note 32

The question of whether age falls into the first category seems to depend on the interpretation of “unchangeable.” In Jean, Leonie Laurore v. M.C.I. (F.C., no. IMM-5860-09), Shore, June 22, 2010; 2010 FC 674, the Court noted that the age of a person is not unchangeable (paragraphs 38-44). However, in Arteaga Banegas, Cristhian Josue v. M.C.I., (F.C., no. IMM-5322-14), Shore, January 13, 2015, 2015 FC 45, at para 26, Justice Shore cites - with apparent approval - the UNHCR Guidance Note on Refugee Claims Relating to Victims of Organized Crime in which paragraph 36 ends with the statement: “The immutable character of “age” or “youth” is in effect, unchangeable at any given point in time.”

See also M.C.I. v.Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008; 2008 FC 474, where the Court upheld a decision of the RPD that found the claimant, “an abandoned child”, to be a member of a particular social group.

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Note 33

Ward, supra, note 1, at 739.

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Note 34

Ward, supra, note 1, at 738. Thus the Court held, at 745, that an association, such as the Irish National Liberation Army (INLA), that is committed to attaining political goals by any means, including violence, does not constitute a particular social group, as requiring its members to abandon this objective “does not amount to an abdication of their human dignity.”

In Orphée, Jean Patrique v. M.C.I. (F.C., no. IMM-251-11), Scott, July 29, 2011; 2011 FC 966, the Court concluded that the RPD had not erred in determining that the claimant, a member of an Association of taxi drivers, was not a member of a particular social group and that the job of taxi driver does not constitute a characteristic that is innate or fundamental to human dignity, especially because he had admitted that he would change jobs if he had to return to Haiti.

In TrujilloSanchez, Luis Miguel v.M.C.I. (F.C.A., no. A-310-06), Richard, Sharlow, Malone, March 8, 2007; 2007 FCA 99, the claimant was employed by the government as an engineer. He also ran a side business that reported violations of signage by-laws to the Bogota city authorities. As a result of this business, he was threatened and abducted twice by the FARC which had demanded that he cease reporting violations. The Federal Court of Appeal agreed that the claimant had an alternative that would eliminate future risk of harm; he could choose to cease operating his side business. The Court went on to state that the claimant’s “freedom to profess his religion, give expression to an immutable personal characteristic, express his political views, etc., was not affected by abandoning his side business. Moreover, [he] was not deprived of his general ability to earn a living”.

In Malik v. M.C.I., 2019 FC 955. the Court held that a dispute over an inheritance did not have a nexus to a convention ground.

See also Losowa Osengosengo, Victorine v. M.C.I. (F.C., no. IMM-4132-13), Gagné, March 13, 2014; 2014 FC 244, at para 20. The claimant was a Franciscan nun from the DRC. The RPD held that she would be safe if she moved to Kinshasa where she could earn a living as a teacher and live with her family. The Court held that the RPD erred and that it was legitimate for the claimant, as a nun, to insist upon living among her congregation as her religious duty and that returning to the DRC as a member of this Franciscan congregation exposed her to probable and unnecessary risks to her livelihood.

See also Antoine, Belinda v. M.C.I. (F.C., no. IMM-4967-14), Fothergill, June 26, 2015; 2015 FC 795 where the PRRA Officer had held that in order to avoid persecution, the applicant must continue to avoid an overtly lesbian lifestyle. The Court held that the expectation that an individual should practice discretion with respect to her sexual orientation is perverse, as it requires the individual to repress an immutable characteristic.

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Note 35

Ward, supra, note 1, at 738-739. Thus the Court held, at 745, that although the claimant’s membership in INLA placed him in the circumstances that led to his fear, the fear itself was based on his action, not on his affiliation.

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Note 36

Ward, supra, note 1, at 729-733. In Mason, Rawlson v. S.S.C. (F.C.T.D., no. IMM-2503-94), Simpson, May 25, 1995, the claimant feared being killed by drug “thugs” because he opposed the drug trade, and informed and testified against his brother in criminal proceedings; the Court held that “persons of high moral fibre who opposed the drug trade” were not a particular social group as this was not a pre-existing group whose members were subsequently persecuted.

In Manrique Galvan, supra, note 28, the Court noted that the concept of particular social group requires more than a mere association of individuals who have come together because of their victimization.

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Note 37

In M.C.I. v. Lin, Chen (F.C.A., no. A-3-01), Desjardins, Décary, Sexton, October 18, 2001, the Court, in answer to a certified question, held that the CRDD erred in law when it found that the minor claimant had a well-founded fear of persecution on the grounds that he was a member of a particular social group, “minor child of Chinese family who is expected to provide support for other family members”. There was no evidence to support the CRDD’s finding that the named group was targeted for persecution by parents or other agents of persecution. The claimant’s fear of persecution was not because he was under 18 and expected to provide support for his family. His fear was directed at the Chinese authorities and stemmed from the method chosen to leave China.

See also Xiao, Mei Feng v. M.C.I. (F.C.T.D., no. IMM-953-00), Muldoon, March 16, 2001 where the claim was based on membership in a particular social group, i.e. children. The alleged persecutors were the snakeheads who smuggled the minor claimant out of China. However, given the evidence showing that snakeheads smuggle any person simply for profit, no nexus could be established between the feared harm and an enumerated ground of persecution.

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Note 38

Chan(C.A.), supra, note 1.

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Note 39

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

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Note 40

Chan (S.C.C.), ibid, at 672.

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Note 41

Chan (S.C.C.), supra, note 39, at 658 and 672.

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Note 42

Chan (S.C.C.), supra, note 39, at 642.

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Note 43

Chan (S.C.C.), supra, note 39, at 642.

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Note 44

In Chan (S.C.C.), supra, note 39, at 643-644, Mr. Justice La Forest commented that having children can be classified as what one does rather than who one is. In context, however, having children makes a person a parent which is what one is.

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Note 45

Chan (S.C.C.), supra, note 39, at 644-646.

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Note 46

Al-Busaidy, Talal Ali Said v. M.E.I. (F.C.A., no. A-46-91), Heald, Hugessen, Stone, January 17, 1992. Reported: Al-Busaidyv.Canada (Minister of Employment and Immigration) (1992), 16 Imm. L.R. (2d) 119 (F.C.A.). The concepts of family unity and indirect persecution though related to family, have been clearly distinguished from family as a particular social group within the meaning of the Refugee Convention. See Pour-Shariati v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 767 (T.D.), at 774-775; and Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (T.D.). With respect to the concept of indirect persecution, see also Chapter 9.

The characterization of family as a social group relates to persecution that would be directly suffered by a person simply because of his or her membership in a given family. Members of a family are not necessarily members of a particular social group, as discussed in a case about a family engaged in a dispute over land: Forbes, Ossel O’Brian v. M.C.I. (F.C., no. IMM-5035-11), Hughes, February 27, 2012; 2012 FC 270, at paras 4-5. In Musakanda, Tavonga v. M.C.I. (F.C., no. IMM-6250-06), O’Keefe, December 11, 2007; 2007 FC 1300, the RPD rejected the claims of the adult claimants yet found the minor claimants to be Convention refugees. The claims of the adult claimants were based on perceived political opinion while the minors’ claims were on the risk of them being recruited by the youth militia in Zimbabwe. There was no evidence before the Board that the family as a unit was being persecuted.

In Granada, Armando Ramirez v. M.C.I. (F.C., no. IMM-83-04), Martineau, December 21, 2004; 2004 FC 1766, at para 15 the Court noted that one cannot be deemed to be a refugee only because one has a relative who is being persecuted; that claimants must establish that they are targeted for persecution either personally or collectively. In an earlier case decided by the same judge, Macias, Laura Mena v. M.C.I. (F.C., no. IMM-1040-04), Martineau, December 16, 2004; 2004 FC 1749, at para 13, the Court held that in order to consider immediate family as a particular social group, a claimant must only prove that there is a clear nexus between the persecution being levelled against one member of the family and that which is taking place against the claimant.

In Tomov, Nikolay Haralam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005; 2005 FC 1527, the applicant, a citizen of Bulgaria, claimed refugee protection based on his membership in his common-law spouse’s Roma family and the assault he faced when he was in her company. The Court noted that family is a valid social group for the purposes of seeking protection. Here, there was a sufficient nexus between the Applicant’s claim and his wife’s persecution. The Board erred in requiring that the Applicant be personally targeted outside of his relationship.

However, for a derivative claim based on family membership to succeed, the family member who is the principal target of the persecution must be subject to persecution for a Convention reason. See Rodriguez, Ana Maria v. M.C.I. (F.C.T.D., no. IMM-4573-96), Heald, September 26, 1997, where the claimant was threatened with harm because her husband was involved in the mafia’s drug related business. The Court held that the CRDD did not err in holding that the claimant did not belong to a "particular social group" within the meaning of the Convention definition, as her difficulties were due solely to her connection to her spouse who was targeted for non-Convention reasons.

This rationale was followed in Klinko, Alexanderv.M.C.I. (F.C.T.D., no. IMM-2511-97), Rothstein, April 30, 1998, where the Court held that when the primary victim of persecution does not come within the Convention refugee definition, any derivative Convention refugee claim based on family group cannot be sustained. (Klinko was overturned by the Federal Court of Appeal on other grounds: Klinko, Alexander v. M.C.I. (F.C.A., no. A-321-98), Létourneau, Noël, Malone, February 22, 2000).

See also Asghar, Imran Mohammad v. M.C.I. (F.C., no. IMM-8239-04), Blanchard, May 31, 2005; 2005 FC 768 where the son of a policeman feared terrorists his father had arrested.

In Ramirez Aburto, Williams v. M.C.I. (F.C., no. IMM-7680-10 and no. IMM-7683-10), Near, September 6, 2011; 2011 FC 1049 the family members of businessmen targeted by criminal gangs for extortion were found to have no nexus.

In Nyembua, Placide Ntaku W v. M.C.I. (F.C., No. IMM-7933-14), Gascon, August 14, 2015; 2015 FC 970, Mr. Nyembua’s claim was based on membership in a particular social group, his son’s family. Though he alleged that his son had tried to expose corruption in his unit in the Congolese army, there was insufficient evidence to support that his son had denounced corruption or that such denunciations stemmed from his son’s political opinion. The Court found it was not unreasonable for the RPD to conclude that the son was being pursued for desertion, not because of his political opinion and that Mr. Nyembua had failed to demonstrate that he would face a risk as a family member of a person fearing persecution.

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Note 47

In Pizarro, Claudio Juan Diaz v. M.E.I. (F.C.T.D., no. IMM-2051-93), Gibson, March 11, 1994, the first issue addressed by the CRDD was whether the claimant's sexual orientation, of itself, constituted him a member of a particular social group. The CRDD determined that it did not, but the Federal Court held that the question had effectively been put beyond doubt by the Supreme Court of Canada when it reached the opposite conclusion in Ward, supra, note 1.

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Note 48

Rodriguez, Juan Carlos Rodriguez v. M.E.I. (F.C.T.D., no. IMM-4109-93), Dubé, October 25, 1994. In the Court’s opinion it was clear that a group voluntarily engaged in union activities was included in Ward’s second category: "groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association".

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Note 49

In Sinora, Frensel v. M.E.I. (F.C.T.D., no. 93-A-334), Noël, July 3, 1993, Justice Noël noted that “[I]t is important to note that this group [the poor] has been recognized as a social group by the Federal Court of Appeal.” Unfortunately, there is no reference for the Court of Appeal decision but Justice Noël may have been referring to Orelien v. Canada (Minister of Employment and Immigration, [1992] 1 F.C. 592, where the Court was dealing with a decision of the credible basis panel. The claim in question was based on membership in the group of “poor and disadvantaged people of Haiti”. The argument before the credible basis panel was that all Haitians outside Haiti have a credible basis for claiming to be refugees, not that all Haitians are refugees. The credible basis panel ruled that “it would be absurd to accept the proposition … that all Haitian are refugees, since this would offer international protection to both the victims and the perpetrators of the crimes”. The Court agreed that the tribunal misunderstood the argument: “With respect, it is not axiomatic that nationals of a country who have escaped that country may not have a well founded fear of persecution by reason of their nationality should they be returned.” However, the Court, per Mahoney J., also noted the following: “I am inclined to agree with [the panel] on this point: there is nothing to distinguish the applicant’s claim to be persecuted by reason of membership in that particular social group [the poor and disadvantaged] from their claim to be persecuted by reason of Haitian nationality itself.”

In Mia, Samsuv. M.C.I. (F.C., no. IMM-2677-99), Tremblay-Lamer, January 26, 2000, a domestic servant employed at the High Commission for Bangladesh claimed refugee status on the basis of his membership in a particular social group, the poor. After he talked about his experiences on a television show, he and his family in Bangladesh both received threats. It seems that neither the CRDD nor the Court took issue with a particular social group composed of the poor but the Court found it was reasonable for the member to conclude that the claimant was a victim of a personal vendetta rather than persecution linked to that group.

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Note 50

In Mortera, Senando Layson v. M.E.I. (F.C.T.D., no. A-1084-92), McKeown, December 8, 1993, the claimant was a wealthy person and landlord in the Philippines. The Court rejected the argument that he was part of Ward’s third category of particular social group. .
See also Wilcox, Manuel Jorge Enrique Tataje v. M.E.I. (F.C.T.D., no. A-1282-92), Reed, November 2, 1993; in which the Court held that upper middle class Peruvians, who feared extortion against the rich, could not claim to be subject to persecution in the Convention refugee sense.

In Karpounin, Maxim Nikolajevitsh v. M.E.I. (F.C.T.D., no. IMM-7368-93), Jerome, March 10, 1995; the Court rejected the argument that the claimant’s status as a financially successful person in the Ukraine, places him in a particular social group defined by voluntary association "for reasons so fundamental to their human dignity they should not be forced to forsake the association."

In Montchak, Roman v. M.C.I. (F.C.T.D., no. IMM-3068-98), Evans, July 7, 1999, at para 4, the Court summarizes the state of the law: “There is ample authority in this Court for the proposition that those who have made money in business do not comprise a particular social group, and therefore if they attract the attention of criminals by virtue of their wealth they cannot be said to fear persecution on a Convention ground.”

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Note 51

In Ward, supra, note 1, at 731, the Court said: “The persecution in the ‘Cold War cases’ was imposed upon the capitalists not because of their contemporaneous activities but because of their past status as ascribed to them by the Communist leaders.” Thus, in Lai, Kai Ming v. M.E.I. (F.C.A., no. A-792-88), Marceau, Stone, Desjardins, September 18, 1989. Reported: Lai v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.), at 245-246, the Court implicitly accepted that “persons with capitalist backgrounds” constitute a particular social group in the context of China.

In Karpounin, supra, note 50, however, the Court stated at 4: “it does not necessarily follow that, merely because the historical underpinning of including the use of the term ‘particular social group’ as found in the Convention, was based on the desire to protect capitalists and independent businessmen fleeing Eastern Bloc persecution during the cold war, should it lead to the conclusion that the [claimant] in this case was persecuted for that very reason.” The CRDD had found that the claimant, an independent businessman, was targeted because of the size of his bank account and not because of his choice of occupation or the state of his conscience.

In Étienne, Jacques v. M.C.I. (F.C., no. IMM-2771-06), Shore, January 25, 2007; 2007 FC 64, the Court upheld the RPD’s determination that acquiring wealth or winning a lottery does not constitute membership in a particular social group.

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Note 52

In Narvaez, supra, note 8, Mr. Justice McKeown referred extensively to Ward, supra, footnote 1 and to the IRB Chairperson’s Gender Guidelines in finding “women subject to domestic abuse in Ecuador” to constitute a particular social group; the judgment did not address the issue of whether the group can be defined by the persecution feared. (In Ward, supra, note 1, at 729-733, the Court rejected the notion that “particular social group” could be defined solely by the persecution feared, i.e., the common victimization.)

The reasoning in Narvaez, supra, note 8, was explicitly adopted in the decision of Diluna, Roselene Edyr Soares v. M.E.I. (F.C.T.D., no. IMM-3201-94), Gibson, March 14, 1995. Reported: Diluna v. Canada (Minister of Employment and Immigration) (1995), 29 Imm. L.R. (2d) 156 (F.C.T.D.), where the Court held that the CRDD erred in not finding that “women subject to domestic violence in Brazil” constitute a particular social group.

In Hernandez Cornejo, Lisseth Noemi v. M.C.I. (F.C., no. IMM-5751-11), Rennie, March 19, 2012; 2012 FC 325, the Court noted that a man’s relentless pursuit of his ex-girlfriend does not cease to be gender-related persecution simply because that man also harasses her male relatives in an effort to get her back.

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Note 53

Sebok, Judit v. M.C.I. (F.C., no. IMM-2893-12), Snider, September 21, 2012, 2012 FC 1107.

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Note 54

Vidhani v. M.C.I., [1995] 3 F.C. 60 (T.D.) , where the Court expressly considered the IRB Guideline on Women Refugee Claimants Fearing Gender-Related Persecution and held that such women have suffered a violation of a basic human right (the right to enter freely into marriage) and would appear to fall within the first category identified in Ward, supra, note 1.

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Note 55

Cius, Ligene v. M.C.I. (F.C., no. IMM-406-07), Beaudry, January 7, 2008; 2008 FC 1, paragraphs 14-21. However, see note 87, infra.

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Note 56

Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.), where the Court implicitly seemed to accept that the claim was grounded. See also the IRB Guideline on Women Refugee Claimants Fearing Gender-Related Persecution, where this case is mentioned in endnote 14.

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Note 57

Cheung, supra, note 26, at 322, (“women in China who have one child and are faced with forced sterilization”).

But note Liu, Ying Yang v. M.C.I. (F.C.T.D., no. IMM-4316-94), Reed, May 16, 1995, where the Court found that the claimant had shown no subjective fear of persecution as a result of the threat of sterilization and there was no evidence she objected to the government policy.

See also Chan (S.C.C.), supra, note 39, at 644-646, where La Forest J. (dissenting) formulates the group under Ward’s second category (see section 4.5. of this Chapter), as an association or group resulting from a “common attempt by its members to exercise a fundamental human right” (at 646), namely, “the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children.” (at 646). For further discussion of China’s one child policy, see Chapter 9, section 9.3.7.

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Note 58

Badran, Housam v. M.C.I. (F.C.T.D., no. IMM-2472-95), McKeown, March 29, 1996.

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Note 59

Reynoso, Edith Isabel Guardian v. M.C.I. (F.C.T.D., no. IMM-2110-94), Muldoon, January 29, 1996. Mr. Justice Muldoon stated that the claimant’s group was defined by an innate or unchangeable characteristic, they had acquired knowledge which put them in jeopardy. Though the Court acknowledged that this characteristic was one acquired later in life, it was unchangeable.

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Note 60

Ali, Shaysta-Ameer v. M.C.I. (F.C.T.D., no. IMM-3404-95), McKeown, October 30, 1996. Reported: Aliv.Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 34 (F.C.T.D.). The case mentions that the mother of the applicant was found to be a refugee as part of a group of educated women (there is no analysis of this finding) but the issue in the case was whether the Board was wrong in refusing the daughter’s claim because she was an uneducated girl. The Court stated: “I do not agree with this reasoning since it means if [the girl] is returned to Afghanistan, the only way she can avoid being persecuted is to refuse to go to school. Education is a basic fundamental right and I direct the Board to find she should be found to be a Convention refugee.”

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Note 61

Selvaratnam, Thevananthini v. M.C.I. (F.C., no. IMM-520-15), Annis, January 19, 2016; 2016 FC 50 (re Tamil female citizen of Northern Sri Lanka).

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Note 62

Serrano, Roberto Flores v. M.C.I. (F.C.T.D., no. IMM-2787-98), Sharlow, April 27, 1999. The Court certified a question on this issue but no appeal was filed.

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Note 63

In Liaqat, Mohammad v. M.C.I. (F.C., no. IMM-9550-04), Teitelbaum, June 23, 2005; 2005 FC 893, the Applicant had been diagnosed with schizophrenia and depression with psychotic features. In the context of the judicial review of a negative PRRA decision, the Applicant submitted that his mental illness was an innate and unchangeable characteristic, notwithstanding that its severity may fluctuate with treatment. The Minister appeared to concede that the Applicant was a member of a particular social group because of his mental illness and the Court was in agreement.

In Jasiel, Tadeuszv. M.C.I. (F.C., no. IMM-564-05), Teitelbaum, September 13, 2005; 2005 FC 1234, the Applicant, a 50-year old citizen of Poland, premised his claim on the basis that he is a severe alcoholic who will relapse if returned to Poland, and be committed to a psychiatric hospital as a result of his condition. The Court agreed with the Board’s finding that the Applicant had failed to establish a nexus between the Applicant’s alcoholism and the Convention refugee grounds.

In M.C.I. v. Oh, Mi Sook (F.C., no. IMM-5048-08), Pinard, May 22, 2009; 2009 FC 506 the minor claimant was found to be a member of a particular social group, “children of the mentally ill”.

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Note 64

In A.B. v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-3522-05), Barnes, April 5, 2006; 2006 FC 444, the RPD accepted that the claimant, whose claim of persecution was premised on the stigma, discrimination and mistreatment of persons who suffer from HIV/AIDS, met the requirement for membership in a particular social group, that is, persons fearing persecution because of an unchangeable characteristic. While a nexus to the definition was accepted, the claim was rejected because it failed to meet other elements of the definition. The Court allowed the judicial review but on other issues.

In Rodriguez Diaz, Jose Fernando v. M.C.I. (F.C., no. IMM-4652-07), O’Keefe, November 6, 2008, the Court notes that HIV-positive individuals constitute a particular social group.

See also Mings-Edwards, Ferona Elaine v. M.C.I. (F.C., no. IMM-3696-10), Mactavish, January 26, 2011; 2011 FC 91, where there is an implicit finding that status related to “women infected with HIV” can provide a nexus to the refugee definition.

See also A.B. v. M.C.I., 2019 FC 1339, The Court implicitly found a nexus between HIV-positive status when finding it was an error for the PRRA officer to fail to address how the Applicant’s HIV-positive status would affect his risk of persecution in the future.

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Note 65

Patel, supra, note 32.

Note that in one case age per se was held not to be an unchangeable characteristic: Jean, supra, note 32

In Woods, Kinique Kemira v. M.C.I. (F.C., no. IMM-4863-06), Beaudry, March 26, 2007; 2007 FC 318, the 12-year-old claimant was afraid of returning to her country because she would be left to fend for herself on the streets and because the child welfare system in Saint Vincent was inadequate to provide for her needs. The Court held that while the claimant’s situation aroused compassion, the fact remained that she did not prove the merits of her claim.

Also note that in M.C.E. v. M.C.I. (F.C., no. IMM-1116-10), Beaudry, November 16, 2010; 2010 FC 1140, the Court noted that now that the applicant was an adult, the fears she had as a child were no longer relevant.

However, in Moradel v. M.C.I., 2019 FC 404, the Court found it was an error to fail to consider the claimant’s risk under section 96 as a “young woman” and specifically differentiated the minor claimant’s risk from that of her mother, noting that young women were according to the documentation, particularly vulnerable.

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Note 66

In Martinez Menendez, Mynor v. M.C.I. (F.C., no. IMM-3830-09), Boivin, February 25, 2010; 2010 FC 221, the Court held it was reasonable for the RPD to conclude that the criminal gangs did not constitute a de facto government and that refusing to pay extortion to them would not be seen as political opinion. Also see Salazar, Eber Isai Oajaca v. M.C.I. (F.C., no. IMM-2166-17), Kane, January 26, 2018; 2018 FC 83 where the Court found that a risk from refusing “job offers” made by criminal gangs in Guatemala did not constitute a nexus on the ground of imputed political opinion.

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Note 67

Ward, supra, note 1, at 746. The word "engaged" was interpreted in Femenia, Guillermo v. M.C.I. (F.C.T.D., no. IMM-3852-94), Simpson, October 30, 1995. The claimants asserted that their political opinion was that they opposed the existence of corrupt police and advocated their removal and prosecution. They argued that this was an opinion on a matter “in which the machinery of state, government and policy may be engaged.” Madam Justice Simpson concluded that the state is “engaged” in the provision of police services, but not in the criminal conduct of corrupt officers. In her view, that was not conduct officially sanctioned, condoned or supported by the state and therefore, the claimants’ asserted political opinion did not come within the Ward, supra, footnote 1, characterization of political opinion. The Court of Appeal in Klinko, supra, footnote 44, rejected the approach followed by the Trial Division in Femenia as being too narrow an interpretation of Ward. The Court answered in the affirmative the following certified question:

Does the making of a public complaint about widespread corrupt conduct by customs and police officials to a regional governing authority, and thereafter, the complainant suffering persecution on this account, when the corrupt conduct is not officially sanctioned, condoned or supported by the state, constitute an expression of political opinion as that term is understood in the definition of Convention refugee in subsection 2(1) of the Immigration Act?

See also Berrueta, Jesus Alberto Arzola v. M.C.I. (F.C.T.D., no. IMM-2303-95), Wetston, March 21, 1996, where the Court overturned the CRDD decision on the basis that the CRDD did not suitably analyze the facts to determine the issue of political opinion. With respect to corruption, the Court stated, at 2, that “[c]orruption is prevalent in some countries. To decry corruption, in some cases, is to strike at the core of such governments’ authority.”

See also Zhu, Yong Qin v. M.C.I. (F.C.T.D., no. IMM-5678-00), Dawson, September 18, 2001 where the claimant received a subpoena to testify against snakeheads. The Court held that the CRDD erred in its analysis of Mr. Zhu’s sur place claim, construing “political opinion” too narrowly, by asking only whether the claimant’s actions would be perceived by Chinese authorities as contrary to the authorities’ opinion and by limiting the perceived opinion to one which challenges the state apparatus, instead of considering whether the Government of China or its machinery “may be engaged” in the issue of human smuggling.

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Note 68

Ward, supra, note 1, at 746.

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Note 69

Ward, supra, note 1, at 746. In Sopiqoti, Spiro v. M.C.I. (F.C., no. IMM-5640-01), Martineau, January 29, 2003; 2003 FC 95, the Court held that the claimant’s statement that he had not had any political involvement and was not familiar with the political ideologies in his country did not exempt the panel from its obligation to consider whether the gestures he had made, such as refusing to fire on pro-democracy demonstrators, were considered to be political activities. Even if the agents of persecution acted out of personal or pecuniary motives, the CRDD had to determine whether the government authority had imputed a political opinion to the claimant.

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Note 70

Ward, supra, note 1, at 747.

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Note 71

Inzunza Orellana, Ricardo Andres v. M.E.I. (F.C.A., no. A-9-79), Heald, Ryan, Kelly, July 25, 1979. Reported: Inzunza v. Canada (Minister of Employment and Immigration) (1979), 103 D.L.R. (3d) 105 (F.C.A.), at 109. See also Ismailov, Dilshod v. M.C.I. (F.C., no. IMM-4286-16), Heneghan, September 18, 2017; 2017 FC 837 where the Court stated that it was not sufficient for the RAD to have stated it did not consider the appellant to be an active participant in the Gulen movement, the RAD should have also addressed the question of whether he would be perceived to be an adherent. In Gopalapillai, Thinesrupan v. M.C.I. (F.C. no. IMM-3539-18), Grammond, February 26, 2019; 2019 FC 228, the Court found the RPD had erred by focusing on whether or not the claimant actually supported the LTTE. This was the wrong question. What mattered was whether the claimant would be perceived as such by the Sri Lankan authorities. In Losada Conde v. M.C.I., 2020 FC 626, the RPD failed to consider whether the FARC routinely ascribes a political opinion to all who oppose it.

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Note 72

Zhou, Zhi Tian v. M.C.I. (F.C., no. IMM-385-12), Zinn, October 30, 2012; 2012 FC 1252.

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Note 73

Ni, Kong Qiu v. M.C.I. (F.C. no. IMM-229-18), Walker, September 25, 2018; 2018 FC 948. Similarly, in Yan, Guiying v. M.C.I. (F.C. no. IMM-3-18), McVeigh, July 25, 2018; 2018 FC 781, at paras 21-22, even though the claimant was wanted for protesting expropriation in China, “she did not point to any evidence before the RPD connecting that charge to political opinion” but that “each case will turn on its facts.” These decisions were followed in obiter in Huang, Shaoqian v. M.C.I. (F.C. no. IMM-2022-18), Gagné, February 5, 2019; 2019 FC 148.

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Note 74

Armson, Joseph Kaku v. M.E.I. (F.C.A., no. A-313-88), Heald, Mahoney, Desjardins, September 5, 1989. Reported: Armson v. Canada (Minister of Employment and Immigration). (1989), 9 Imm. L.R. (2d) 150 (F.C.A.), at 153. Arocha v. M.C.I., 2019 FC 468.

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Note 75

Hilo, Hamdi v. M.E.I. (F.C.A., no. A-260-90), Heald, Stone, Linden, March 15, 1991. Reported: Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.), at 203.

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Note 76

Surajnarain, Doodnauth v. M.C.I. (F.C., no. IMM-1309-08), Dawson, October 16, 2008; 2008 FC 1165.

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Note 77

Arocha v. M.C.I., 2019 FC 468. Both the RPD and RAD had found the claimant in this case to be credible regarding his open opposition to the ruling party in Venezuela while he worked for a state-run company, but found that the main incident in the claim, a home invasion, was not politically motivated. Instead of considering whether the claimants had a nexus to a Convention ground, and then analyzing whether any such nexus could result in persecution going forward, the Court found the RAD unreasonably limited the scope of the Applicants’ fears of future persecution based on the one past incident.

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Note 78

Hilo, supra, note 75 at 202-203 (re charitable group). Salvador (Bucheli), Sandra Elizabeth v. M.C.I. (F.C.T.D., no. IMM-6560-93), Noël, October 27, 1994 (re witness to crime committed by paramilitary group); Marvin, infra, note 82, (re reporting of drug traffickers to authorities); Kwong, Kam Wang (Kwong, Kum Wun) v. M.C.I. (F.C.T.D., no. IMM-3464-94), Cullen, May 1, 1995 (re defiance of one-child policy) - but compare Chan (C.A.), supra, note 1, at 693-696, per Heald J.A., and at 721-723, per Desjardins J.A.

In Aguirre Garcia, Marco Antonio v. M.C.I. (F.C., no. IMM-3392-05), Lutfy, May 29, 2006; 2006 FC 645, the claimant alleged that he faced retribution due to his political affiliation. The RPD concluded, however, that the difficulties arose as a result of his allegiance to his friends (who were candidates for the PRI), rather than the party itself, noting that the claimant was not a member of the PRI. The Court upheld the RPD’s finding of no nexus.

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Note 79

Marino Gonzalez, Francisco v. M.C.I. (F.C., no. IMM-3094-10), Russell, March 30, 2011; 2011 FC 389 at paras 58-60.

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Note 80

Colmenares, supra, note 9.

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Note 81

Makala, François v. M.C.I. (F.C.T.D., no. IMM-300-98), Teitelbaum, July 17, 1998. Reported: Makala v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 251 (F.C.T.D.).

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Note 82

Kang, Hardip Kaur v. M.C.I. (F.C., no. IMM-775-05), Martineau, August 17, 2005; 2005 FC 1128, at para10: “victims or potential victims of crime, corruption or personal vendettas, generally cannot establish a link between fear of persecution and Convention reasons”.

In Calero, Fernando Alejandro (Alejandeo) v. M.E.I. (F.C.T.D., no. IMM-3396-93), Wetston, August 8, 1994, the Court found no nexus for two families fleeing death threats from drug traffickers. ;

In Gomez, José Luis Torres v.M.C.I. (F.C.T.D., no. IMM-1826-98), Pinard, April 29, 1999 the claimant was the victim of corrupt government officials responsible for cattle thefts.

In Larenas, Alberto Palencia v. M.C.I. (F.C., no. IMM-2084-05), Shore, February 14, 2006; 2006 FC 159, the Court held that the claimants’ fear of corrupt union officials resulted from criminality, which did not constitute a fear of persecution based on a Convention ground.

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Note 83

Rivero, Omar Ramon v. M.C.I. (F.C.T.D., no. IMM-511-96), Pinard, November 22, 1996, where the CRDD was upheld in its finding of no nexus where the claimant was the target of a personal vendetta, thus criminal activity, by a government official.

See also De Arce, Rita Gatica v. M.C.I. (F.C.T.D., no. IMM-5237-94), Jerome, November 3, 1995. Reported: De Arce v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 74 (F.C.T.D .) where the claimant testified against her brother-in-law, leading to his conviction for murder. She received threatening phone calls from him and suffered various physical assaults after his release. The Court upheld the Board’s conclusion that she was the victim of a personal vendetta and did not fall within the definition of a Convention refugee.

In Xheko, Aida Siri v.M.C.I. (F.C.T.D., no. IMM-4281-97), Gibson, August 28, 1998 the claimants were threatened and assaulted when they tried to reclaim their family which had been confiscated during the Communist regime.

In Lara, Benjamin Zunigav.M.C.I. (F.C.T.D., no. IMM-438-98), Evans, February 26, the harassment the claimant suffered was found to be motivated by a personal vendetta which resulted from a corruption investigation his employer had asked him to conduct.

In Pena, Jose Ramon Alvaradov.M.C.I. (F.C.T.D., no. IMM-5806-99), Evans, August 25, 2000, the claimant’s girlfriend (now wife) Ms. Ordonez, was granted refugee status on the basis of domestic abuse she suffered at the hands of Mr. Arnulfo. The claimant alleged that Mr. Arnulfo had perpetrated acts of violence against him because of his relationship with Ms. Ordonez. The CRDD concluded that there was no nexus. The Court found that it was reasonably open to the Board to conclude that the cause of the violence against the claimant was the jealousy of a rival for the affections of Ms. Ordonez, not the fact that the claimant was a family member of a person whom Mr. Arnulfo had subjected to gender-based violence.

Regarding blood feuds, in Zefi, Sheko v. M.C.I., (F.C., no. IMM-1089-02), Lemieux 2003 FCT 636 May 21, 2003, at para 41 Justice Lemieux wrote:

[41] Revenge killing in a blood feud has nothing to do with the defence of human rights -- quite to the contrary, such killings constitute a violation of human rights. Families engaged in them do not form a particular social group for Convention purposes. Recognition of a social group on this basis would have the anomalous result of according status to criminal activity, status because of what someone does rather than what someone is (see Ward).

However, in Shkabari, Zamir v. M.C.I. (F.C., no. IMM-4399-11), O’Keefe, February 8, 2012; 2012 FC 177, a case where the claimants (distant cousins) feared harm as a result of a blood feud because they had married contrary to Karun, the customary Albanian law that prohibits marriage between cousins in the same blood line, the Court found the claimants to be members of a particular social group due to their association in a social group of individuals that marry contrary to the Karun law that limits the internationally recognized right to marry freely.

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Note 84

In Barrantes, Rodolfo v. M.C.I. (F.C., no. IMM-1142-04), Harrington, April 15, 2005; 2005 FC 518, the Applicants’ feared persecution by criminals who believed that the principal claimant was a police informant. The Court upheld the RPD’s finding that fear of persecution as a victim of organized crime and a fear of personal vengeance do not constitute a fear of persecution within the meaning of IRPA, s. 96.

See also, Prato, Jorge Luis Machado v. M.C.I. (F.C., no. IMM-10670-04), Pinard, August 12, 2005; 2005 FC 1088, where the Court upheld the Board’s conclusion that the applicant, who was kidnapped for money, was really a victim of extortion which has no nexus to any of the grounds.

In Kang, Hardip Kaur v. M.C.I. supra, note 82 (F.C., no. IMM-775-05), Martineau, August 17, 2005; 2005 FC 1128, the Applicant’s stated fear of her uncle, due to her refusal to sell him property, was found to arise as a result of her individual experience as a victim of crime rather than due to her membership in a particular social group (i.e., gender-related); consequently, no nexus existed.

In Mwakotbe, Sarah Gideon v. M.C.I. (F.C., no. IMM-6809-05), O’Keefe, October 16, 2006; 2006 FC 1227, the applicant alleged danger from her estranged husband’s family clan which practiced witchcraft, including ritualistic killings of relatives. The Court upheld the PRRA officer’s determination that the applicant’s in-laws would be motivated by the pursuit of wealth and, therefore, the harm feared was purely criminal in nature. (Under the circumstances, the Court held that it was unnecessary for the officer to have considered whether educated, perceived wealthy members of a family clan that practices witchcraft may be considered a particular social group.)

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Note 85

Klinko (F.C.A.), supra, note 46. In Fernandez De La Torre, Mario Guillermo v. M.C.I. (F.C.T.D., no. IMM-3787-00), McKeown, May 9, 2001, the male claimant claimed a fear of persecution from Mexican criminal elements based on his association with prominent anti-corruption figures. The Court found that it was reasonable for the CRDD to conclude that no nexus existed. The CRDD had reasonably distinguished Klinko (F.C.A.) in determining that the male claimant was not a political target, given that he had not himself actually denounced corruption.

In Zhu, Yong Qin v. M.C.I., supra, note 67, the claimant claimed to be a refugee sur place, because he gave information to the RCMP about Korean and Chinese individuals charged with human smuggling and feared repercussions by the snakeheads in China, notwithstanding the crackdown by the Chinese government against smugglers. The Court held that persons informing on criminal activity do not form a particular social group. However, the CRDD erred in its attempt to distinguish Klinko (F.C.A.). “Political opinion” should be given a broad interpretation and need not be expressed vis-à-vis the state. The CRDD must consider whether the government of China or its machinery “may be engaged” in human trafficking so as to provide the required nexus to a Convention ground.

In Adewumi, Adegboyega Oluseyi v. M.C.I. (F.C.T.D., no. IMM-1276-01), Dawson, March 7, 2002; 2002 FCT 258, the claimant was targeted by cult members after he delivered an anti-cult lecture at the University of Benin where he condemned cult activities and criticized the police force and government for non-prosecution of serious crimes. The CRDD concluded that what the claimant feared was criminal activity. In the Court’s view, since the claimant’s criticism extended to the police and the government, the CRDD erred in its conclusion that there was no nexus.

In Yoli, Hernan Dario v. M.C.I. (F.C.T.D., no. IMM-399-02), Rouleau, December 30, 2002; 2002 FCT 1329, at para41 the Court agreed with the CRDD that “Boca” (a soccer fan club involved in criminal activities) threatened the claimant with harm after his refusal to participate in its criminal activities and subsequent disassociation from the group, not because of his political opinion but because he could reveal evidence of the members’ identities and their criminal activity to the authorities.

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Note 86

Ward, supra, note 1, at 750, the Court stated that not just any dissent to any organization will unlock the gates of asylum; the disagreement has to be rooted in political conviction.
In Suarez, Jairo Arango v. M.C.I. (F.C.T.D., no. IMM-3246-95), Reed, July 29, 1996, the Court found there was no political content or motivation when the claimant informed on drug lords. His opposition was to criminal activity.

See also Marvin, Mejia Espinoza v. M.C.I. (F.C.T.D., no. IMM-5033-93), Joyal, January 10, 1995, at para 16, a case in which the drug trafficking operations that the applicant witnessed and reported involved certain officers of the security forces and members of the government. The Court found that although the action of reporting drug traffickers to the Costa Rican authorities was a sign of the applicant’s integrity, it was not an expression of political opinion; it was more of a criminal nature.

In Neri, Juan Carlos Herrera v. M.C.I. (F.C., no. IMM-9988-12), Strickland, October 23, 2013; 2013 FC 1087, the principal claimant called police after hearing gunshots. When the police arrived, he complained that they were slow in responding. He also gave an interview to a reporter restating his dissatisfaction with response time of the police. He claimed protection on the basis that his actions in calling and speaking to the police and speaking to the reporter, communicated to organized crime his “pro-rule of law, anti-corruption political opinion”. He also argued that by making the call, he was reporting a crime, which, given the rampant criminality in Mexico, must be viewed as political act or statement. The RPD found that fear of revenge by criminals for having spoken to the police about the gunfire he heard was not linked to a Convention ground. The Court agreed, finding that unlike Klinko, the claimant did not intend to make a political act or to put forward a political statement intended to formally denounce corruption of state officials. Rather, his complaint concerned the untimely response of the police to his call. This alone, was not sufficient to demonstrate political conviction.

In Lai, Cheong Sing v. M.C.I. (F.C.A., no. A-191-04), Malone, Richard, Sharlow, April 11, 2005; 2005 FCA 125, the male appellant alleged that, because of his refusal to participate in a political intrigue, he had been wrongly accused by the Chinese government of smuggling and bribery. The Court found that the Board correctly concluded that there was no nexus between the alleged crimes and any political motive; the motive was one of personal gain and the crimes should not be viewed as political. The Court also rejected the appellants’ argument that where a potential prosecution is politically manipulated by the state, then a person subject to such a prosecution can be a refugee by reason of political opinion. The Court “seriously doubted” that the ground of political opinion could be read to include the political opinion of the persecutor towards the claimant’s situation.

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Note 87

See Klinko (F.C.A.), supra, note 46. The FCA’s decision was rendered in 2000, but a number of earlier cases were decided using similar reasoning. In Berrueta, supra, note 67, at para5, the claimant had denounced kingpins of a drug cartel in Venezuela and the CRDD had found this not to be an expression of political opinion. However, the Court overturned the decision, stating that in countries where corruption is pervasive throughout the state, to denounce corruption is to undermine a government’s authority.

Also in Bohorquez, Gabriel Enriquez v. M.C.I. (F.C.T.D., no. IMM-7078-93), McGillis, October 6, 1994 the claimant was licensed by the central government to establish a cooperative for social and political reform which raised funds by selling lottery tickets. When he opposed the state lottery which was being operated as a monopoly, he faced threats by corrupt officials. The Court found that the claimant’s opposition to the lottery challenged vested political interests and that the Board erred in failing to consider the evidence concerning his claim on the ground of political opinion.

See also Vassiliev, Anatoli Fedorov v. M.C.I. (F.C.T.D. IMM-3443-96), Muldoon, July 4, 1997, where the claimant refused to participate in corruption between business people and government officials. Stating that although opposition to criminal activity per se is not political expression, in cases where criminal activity permeates State action, opposition to criminal acts becomes opposition to State authorities, the Court found that the claimant's refusal to transfer bribes to Russian government officials and to launder money was an expression of political opinion.

See also Mehrabani, Paryoosh Solhjou v.M.C.I. (F.C.T.D., no. IMM-1798-97), Rothstein, April 3, 1998, where the Court upheld the CRDD finding that the claimant's fear of highly placed embezzlers whom he had exposed and against whom he provided evidence, did not ground the claim in political opinion. Denouncing corruption was not seen as a challenge to government activities, as the state (Iran), had taken strong action against some of the corrupt officials.

In Murillo Garcia, Orlando Danilov.M.C.I. (F.C.T.D., no. IMM-1792-98), Tremblay-Lamer, March 4, 1999, the claimant witnessed and reported murders committed by government agents. After reviewing the documentary evidence, the Court found no evidence to suggest that a political opinion could be imputed merely as a result of witnessing and reporting a crime. In fact, the evidence showed that the government did not endorse such acts, as agents who committed abuses were prosecuted.
In Palomares. Dalia Maria Vieras v. M.C.I. (F.C.T.D., no. IMM-933-99), Pelletier, June 2, 2000, at para 15, Justice Pelletier makes the point that “Even if members of the state apparatus are involved, the fact of making a complaint does not necessarily involve political action, nor does it mean that the complaint will be seen by them as political action.”

In Kouril, Zdenek v. M.C.I. (F.C.T.D., no. IMM-2627-02), Pinard, June 13, 2003; 2003 FCT 728, the Court distinguished Klinko on the basis that in Klinko, the political opinion expressed took the form of a denunciation of state officials’ corruption whereas in this case, the claimant had complained about a group of private citizens acting outside the law. Even under Ward’s broad definition of political opinion, the claimant’s complaint would not constitute an expression of political opinion, especially since the evidence before the Board was that corruption was not endemic in the Czech Republic.

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Note 88

In Ward, supra, note 1, at 745, the Court found that the claimant was not part of a social group since he was the target of highly individualized persecution due to what he did as an individual and not because of any group characteristics or association. This reasoning has been followed in Suarez, supra, note 86, and in a similar case, Munoz, Tarquino Oswaldo Padron v. M.C.I. (F.C.T.D., no. IMM-1884-95), McKeown, February 22, 1996., at paras 3 and 7, where the Court held it was reasonable for the CRDD to conclude that the reporting of drug traffickers to expose corruption was a laudable goal but not so fundamental to human dignity that it would place the claimant in a particular social group. See also Mason, supra, note 36; and Soberanis, Enrique Samayoa v. M.C.I. (F.C.T.D., no. IMM-401-96), Tremblay-Lamer, October 8, 1996, where “small business proprietors victimized by extortionists acting in concert with police authorities” was found not to be a particular social group.

In Valderrama, Liz Garcia v. M.C.I. (F.C.T.D., no. IMM-444-98), Reed, August 5, 1998, counsel defined the claimant’s social group as “successful businessman opposed to corruption and unwilling to pay bribes”. The facts revealed that it was “successful businessmen” who were being targeted, regardless of their opposition to corruption. After considering Ward and Chan the Court held that there was no nexus between the targeted class and a Convention social group.

And see Lozano Navarro, Victor v. M.C.I. (F.C., no. IMM-5598-10), Near, June 24, 2011; 2011 FC 768, where the Court agreed with the RPD in rejecting the claimants’ argument that reporting to the authorities and refusing to co-operate with the cartel extorting them was an immutable part of the claimants’ past such that they were members of Ward’s third category of social group.

Also see Palomares, supra, note 87, at para 12, where the Court held that the claimant who witnessed a murder was at risk not because of membership in a particular social group but because of a very personal characteristic, namely, her ability to give evidence which could lead to a prosecution.

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Note 89

Lezama, Orlando Rangel v. M.C.I. (F.C., no. IMM-3396-09), Russell, August 11, 2011; 2011 FC 986, at para 54.

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Note 90

Klinko (F.C.A.), supra, note 46.

In Cen v. Canada (Minister of Citizenship and Immigration), [1996] 1 F.C. 310 (T.D.),, the claimant was sexually exploited by corrupt government officials. The Court found she belonged to a particular social group of women subject to exploitation and violation of security of the person.

In Reynoso, supra, note 59, the claimant was the target of a corrupt mayor because she had uncovered his illegal activities. The Court held that her knowledge of the mayor’s corruption was an unchangeable characteristic that placed her in Ward’s first category of social group.

In Pardo Quitian, supra, note 6, at paras 50-54, there was uncontradicted evidence that a criminal organization was searching for the applicant’s brother due to his past political involvement, therefore her claim was based, in part, on an imputed political opinion.

For cases in which opposition to corruption was considered political opinion, see Berrueta, supra, notes 67 and 84; and Bohorquez, supra, note 87.

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Note 91

Cius, Ligene v. M.C.I. , supra, note 55. The claimant was perceived as wealthy because he was returning to Haiti after a stay abroad.

In Navaneethan, Kalista v. M.C.I. (F.C., no. IMM-51-14), Strickland, May 21, 2015; 2015 FC 664, at para53, the Court noted that it has consistently held that a perception of wealth, without more, is insufficient to qualify claimants as members of a particular social group. In this case, the claimant alleged he would be perceived as wealthy because he had family in Canada.

It is important to exercise caution in applying Cius, supra, which concerns a claimant returning to Haiti after a stay abroad. The Court states, at para 21, that “people returning to Haiti after a stay abroad do not constitute a particular social group within the meaning of section 96 of the Act”, but see Ocean, Marie Nicole v. M.C.I., (F.C., no. IMM-5528-10), Lemieux, June 29, 2011; 2011 FC 796 where the returnee from abroad was a woman claiming to fear gender-related persecution. The Court upheld the RPD’s rejection of her claim but the reason it did so was that the claimant’s testimony made it clear that the basis of her fear was different from a fear of persecution because she belonged to the particular social group of “Haitian women returning to that country after a prolonged absence and fearing being raped because of their gender.” (at para18)

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Note 92

Soimin, Ruth v. M.C.I. (F.C., no. IMM-3470-08), Lagacé, March 4, 2009; 2009 FC 218.

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Note 93

Dezameau, Elmancia v. M.C.I. (F.C. no., IMM-4396-09), Pinard, May 27, 2010; 2010 FC 559.

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Note 94

Josile, Duleine v. M.C.I. (F.C., no. IMM-3623-10, Martineau, January 17, 2011; 2011 FC 39.

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Note 95

R. v. Osolin [1993] 4 S.C.R. 595; R. v. Seaboyer [1991] 2 S.C.R. 577; R. v. Lavalle [1990] 1 S.C.R. 582. In Belle, Asriel Asher v. M.C.I. (F.C., no. IMM-5427-11), Mandamin, October 10, 2012; 2012 FC 1181, the Court, relying on Osolin, found that the RPD erred in concluding that the sexual assault inflicted on the minor applicant was not gender violence simply because it was retaliation by a gang member not inflicted within the context of a domestic relationship.

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Note 96

For example, in Nel, Charl Willem v. M.C.I. (F.C., no. IMM-4601-13), O’Keefe, September 4, 2014; 2014 FC 842, the Court noted that rape does not become a gender-neutral crime merely because all people in the country face some risk of other types of violence.

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Note 97

Mancia, Veronica Margarita Santos v. M.C.I. (F.C., no. IMM-148-11), Snider, July 28, 2011; 2011 FC 949. The Court gives as an example, “if a claimant’s attackers robbed and attacked her, she would have to satisfy the Board that the robbery was not the motive. Otherwise, a man in her situation (even if he, too, had been raped) would not receive protection but would face the same risk of attack.” It is important to note, however, the context in which the Court upheld the Board’s decision that the claim was not gender-based. The claimant’s evidence and oral testimony strongly indicated that she was targeted because of her relationship to her brother, and the reason the MS 18 targeted her brother was because of his perceived wealth.

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Note 98

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

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Note 99

Salibian, supra, note 98, per Décary J.A.

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Note 100

Salibian, supra, note 98, per Décary, J.A.; Hathaway, James C., The Law of Refugee Status, (Toronto: Butterworths, 1991), page 97.

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Note 101

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 102

Rizkallah, supra, note 101, per MacGuigan J.A.

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Note 103

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 para 7.

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Note 104

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 105

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 Isadecision 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, note 13.

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Note 106

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, 1993. Reported: 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, note 103.

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Note 107

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

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Note 108

Salibian, supra, note 98, points out that there may be a nexus in a civil war context. Rizkallah, supra, note 101, 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 BustoEzeta, 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 109

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 110

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 111

Supra, note 104.

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Note 112

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

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Note 113

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 113 referrer

Note 114

Pour-Shariati, supra,note 46. Rothstein J. certified a question as to whether indirect persecution constitutes a basis for a claim.

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Note 115

Casetellanos, supra, note 46.

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Note 116

Casetellanos, ibid. 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 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 116 referrer

Note 117

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.).

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Note 118

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.

See also Iraqi v. M.C.I., 2019 FC 1049. In this case, the Applicants were stateless Palestinian's whose country of former habitual residence was the UAE. Their father had been deported from the UAE and the Applicants argued that this was indirect persecution. The Court rejected this argument stating that the person claiming refugee status must have a well-founded fear of persecution and not merely be the unwilling spectators of the persecution of others.

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Note 119

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

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Note 120

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.

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Note 121

Pour-Shariati, supra, note 117; Casetellanos, supra, note 46; 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 ImmigrationAct, such as s.46.04(1) of ensuring that dependents 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.

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Note 122

Akinfolajimi, Adebimpe Joyce v. M.C.I. (F.C. no. IMM-5067-17), Gleeson, July 12, 2018; 2018 FC 722. Also see Douillard, Kerlange v. M.C.I. (F.C. no. IMM-4443-18), LeBlanc, March 29, 2019; 2019 FC 390, and Eustache, Julyssa Ann Lynn v. M.C.I. 2020 FC 1140.

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Note 123

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 Ibrahimv. 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.

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Note 124

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

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