Chapter 7 - Change of circumstances and compelling reasons

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  1. 7.1. Change of circumstances
    1. 7.1.1. Notice requirements
    2. 7.1.2. Standard of Proof
    3. 7.1.3. No special test for changes in country conditions
    4. 7.1.4. Assessing changes in country conditions
    5. 7.1.5. Post-hearing evidence may be considered by the panel
    6. 7.1.6. Duty to provide sufficient reasons and consider all relevant evidence
  2. 7.2. Compelling reasons
    1. 7.2.1. Introduction
    2. 7.2.2. Applicability
    3. 7.2.3. Duty to consider section 108(4)
    4. 7.2.4. Meaning of “compelling reasons”
    5. 7.2.5. Level or severity of harm
    6. 7.2.6. Psychological evidence and psychological after-effects
    7. 7.2.7. Persecution of others
    8. 7.2.8. Generalized persecution
    9. 7.2.9. Return to the country of persecution and persecutory incidents across multiple states
    10. 7.2.10. Adequacy of reasons

7. Change of circumstances and compelling reasons

7.1. Change of Circumstances

The issues dealt with in this chapter arise out of situations where the reasons why claimants fear returning to their country have changed from the time they fled.

The determination of a claim by the Refugee Protection Division (RPD) includes consideration of the situation both at the time of fleeing and at the time of the hearing. In other words, the question raised is not whether the claimant had reasons to fear persecution in the past, but rather whether now, at the time the claim is being decided, the claimant has good grounds to fear persecution in the future. Consequently, a claimant does not require protection if the reasons for which the protection was sought have ceased to exist.

Section 108(1) of the Immigration and Refugee Protection Act (IRPA) provides that:

108(1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: …

(e) the reasons for which the person sought refugee protection have ceased to exist.

Notably, the changes contemplated in section 108(1)(e) can relate to the situation in the country of reference or the personal circumstances of the claimant.Note 1

Although change in circumstances may negate the well-foundedness of a claim, a claimant may be able to establish a sur place claim (see Chapter 5).

Section 108(2) also provides the framework for cessation of status. The Minister may apply for cessation of status for any of the reasons in subsection (1), including change of circumstances under s. 108(1)(e). For a discussion of change of circumstances in the context of cessation, see Chapter 12.

7.1.1. Notice requirements

There appears to be some disagreement in the case law regarding the need to notify the claimant that change of circumstances is an issue in the claim .

In Alfarsy,Note 2 the Court was of the view that since the definition of a Convention refugee is forward looking, there is no further obligation on the Board beyond indicating that “objective fear” is an issue in the claim and the changes are part of the evidence relating to the well -foundedness of the claim.

In a more recent case, Buterwa,Note 3 the Court, without deciding the issue, stated that it doubted that a separate notice of change of circumstances was required.

On the other hand, in Kerimu,Note 4 the Court held that notice must be given of issues that are determinative of the claim, including change of circumstances.

Since the right to know the case is an issue of natural justice, it seems prudent for the Board to explicitly raise the issue of change of circumstances, especially where the issue might be determinative of the claim. It is however doubtful that the issue needs to be raised by a formal pre-hearing notice.

7.1.2. Standard of proof

As in all other refugee claims heard by the RPD, the test of well-foundedness found in AdjeiNote 5 applies to claims involving an assessment of changed or changing country conditions,Note 6 and the onus remains on the claimant to establish their claim (the onus shifts where the Minister applies for cessation of status).

7.1.3. No special test for changes in country conditions

Earlier jurisprudence generated a considerable body of case law in which divergent positions were taken on the applicability of the so-called “Hathaway test”Note 7 in assessing claims where there have been changes in country conditions since the claimant’s departure from his or her country of nationality.

The issue was clarified by the Court of Appeal in Yusuf,Note 8 which explicitly rejected the notion that there is a separate legal test by which the changed circumstances must be measured. Justice Hugessen stated for the Court:

… the issue of so-called “changed circumstances” seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant’s country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal “test” by which any alleged change in circumstances must be measured. The use of words such as “meaningful”, “effective” or “durable” is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s. 2 of the [Immigration] Act: does the claimant now have a well-founded fear of persecution?

In the subsequent decision of the Court of Appeal in Rahman,Note 9 Justice Robertson elaborated on this issue:

This Court has previously held in Yusuf … that the issue of “changed circumstances” is essentially one of fact. Indeed, what is important is not so much the change as the actual circumstances existing in the claimant’s country of origin. The question is whether those circumstances support the claimant’s alleged well-founded fear of persecution.

In Fernandopulle,Note 10 the Court of Appeal confirmed that the question of changed country conditions is one of fact.

7.1.4. Assessing changes in country conditions

The changes which are being relied on as removing the reasons for the claimant’s fear of persecution are not to be assessed in the abstract but for their impact on the claimant’s particular situation.Note 11

The change in circumstances often relates to the conditions in the claimant’s country of nationality, but it may also relate to the claimant’s personal circumstancesNote 12.

Where the changes are very recent, the evidence must be subjected to a detailed analysis to determine whether this change is significant enough to eliminate the claimant’s fear.Note 13

Although the Board may find, in appropriate cases, that even recent changes are sufficient to remove the basis of the claimant’s fear of persecution,Note 14 it should not rely on or give much, if any, weight to changes that are short-lived, transitory, inchoate, tentative, inconsequential or otherwise ineffective in substance or implementation.Note 15

In the context of a change in government, the Court in Soe made an analogy to the analysis carried out when assessing state protection, which must be adequate at an operational level. The Court quashed the pre-removal risk assessment decision in part because the Minister’s delegate failed to consider if the recent regime change in Myanmar was durable and effective, and whether the democratic reforms were operational. The delegate “relied heavily on the fact that a democratic government was elected, without considering the quality of the institutions of the democratic government.”Note 16

In the decision of Mohamed,Note 17 Justice Denault of the Trial Division set out the following approach:

… when making a finding on the issue of changes in circumstances the tribunal must, at least, turn its mind to the objective basis of the [claimant’s] fear of persecution, the alleged agents of persecution and the form or nature of the persecution feared in order to properly evaluate the effect of the change. This evaluation must relate to the particular circumstances of the [claimant] and the tribunal should provide a clear indication or explanation for its finding.

7.1.5. Reasons and Assessment of Evidence

There is no obligation on the RPD to consider post-hearing evidence relating to changes in country conditions unless that evidence has been submitted by the claimant,Note 18 and accepted by the panel,Note 19 before the panel renders a final decision on the claim.

The RPD may, on its own motion, provide additional documents and reconvene a hearing into a claim that has not been concluded with a final decision, to hear evidence relating to changes in country conditions.Note 20

7.1.6. Duty to provide sufficient reasons and consider all relevant evidence

The Court of Appeal pointed out in AhmedNote 21 that it is not sufficient for the Board to simply state that a change has taken place, “without more explanation to establish that the appropriate legal principles were applied.”

Although there is no requirement to cite every piece of evidence before it, the RPD’s reasons should demonstrate that it was not unduly selective, but rather has considered all of the relevant evidence, both that which supports a conclusion of changed country conditions and that which does not, in reaching its decision.Note 22

Moreover, before arriving at a conclusion on the impact of the changes on the claim the Board should have received evidence that relates specifically to the basis of the claimant’s fear of persecution.Note 23

7.2. Compelling reasons

7.2.1. Introduction

Section 108(4) of IRPA provides that:

108(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, treatment or punishment

In the ObstojNote 24 decision, the Federal Court of Appeal considered the issue of the applicability of the exception found in section 2(3) of the Immigration Act (“compelling reasons arising out of any past persecution for refusing to avail …”) and held that this provision can be properly considered by the Refugee Division in hearings under section 69.1 of that Act [now s. 170 of IRPA].Note 25

This principle continues to apply under IRPA, where a similarly worded “compelling reasons” provision is found in section 108(4).

In Isacko,Note 26 the Federal Court stated that section 108(4) of IRPA is very similar to section 2(3) of the Immigration Act and therefore, the jurisprudence that developed with respect to section 2(3) of the former Act may be used as guidance in the interpretation of section 108(4) of IRPA.Note 27

In applying sections 96 and 97 of IRPA, the Federal Court has held that the compelling reasons exception only applies when there has been a determination that the person was a Convention refugee or a person in need of protection, and also that the conditions that led to that finding no longer exist.Note 28

In Nadjat,Note 29 the Court rejected the notion that section 108(4) applies only if refugee protection has actually been conferred. In Ismail,Note 30 the Federal Court explained that “the provision does not require that claimants establish that they had previously been granted refugee protection based on past persecution. Rather, they must persuade the decision-maker […] that they previously held a well-founded fear of persecution in their country of origin, and that their experience explains their refusal to return there to avail themselves of that state's protection. In other words, claimants must show that they once qualified for refugee protection; they do not have to establish that they actually achieved it.”

7.2.2. Applicability

In practical terms, a claimant has to establish that they would have met the definition of Convention refugee or person in need of protection to rely on section 108(4).Note 31 It must be emphasized that the claimant would have to establish that they would have met the definition at the time of the departure. The principle of alienage, i.e., a claimant must be outside their country of origin, would necessitate that the person met the requirements of refugeehood at the time of departure from their country of origin, and that there was a subsequent change in circumstances, before the panel could consider the compelling reasons exception. Consequently, the existence of past persecution does not automatically trigger the need to consider the application of the exception.

However, in order for the “compelling reasons” exception to apply, the claimant is not expected to show a subsisting well-founded fear of persecution or an ongoing subjective fear of persecution.Note 32

Furthermore, the “compelling reasons” exception arises only when the reasons for which the person sought protection “have ceased to exist”. Therefore, there must be a change in circumstances to trigger the consideration of this exception.Note 33

Decision-makers consider whether the claimant met section 96 or section 97(1) requirements at the time of departure. For example, in Cortez,Note 34 the Trial Division held that the applicability of section 2(2)(e) and 2(3) of the Immigration Act was dependent on a finding that the claimant had a well-founded fear of persecution when the person left their country of nationality. The reasons for one's fear of persecution must have ceased thereafter for the compelling reasons exception to be triggered.Note 35

This interpretation was adopted by the Court of Appeal in Cihal,Note 36 where the Court confirmed that the CRDD was not required to consider whether past persecution constitutes compelling reasons under section 2(3) of the Immigration Act, where it determines that the claimant was not a Convention refugee at the time of departure from the country of nationality. The same approach would prevail under the IRPA.

The Federal Court adopted the same approach in Salazar,Note 37 noting that the Board must first find a refugee claimant to be a Convention refugee or person in need of protection at the time of persecution before applying the compelling reasons exception.

In Zuniga,Note 38 the Federal Court reiterated that to be eligible for consideration under section 108(4) of IRPA, a claimant must have been a Convention refugee or person in need of protection at the time of their persecution.

In Corrales,Note 39 the Trial Division held that since the CRDD never decided that the claimant was a Convention refugee, having found that state protection was available in her country, there was no need for it to consider compelling reasons. The exception does not apply where the Board determines that the claimant has not established that they were at risk.Note 40 Thus, the “compelling reasons” exception need only be considered where the determination of the claim is based, in whole or part, on a change in country conditions.Note 41

In Komaromi,Note 42 the claimant argued that the RPD erred in failing to consider section 108(4) of the IRPA. The Federal Court dismissed the application, noting that “the case law is clear that section 108(4) applies only in cases where the RPD has concluded that there was a valid refugee or protected person claim and that the reasons for the claim have ceased to exist”. Since the claimants did not meet this requirement, the RPD could not be faulted for concluding that section 108(4) did not apply.

The “compelling reasons” exception does not arise where a claimant's factual evidence is not believed.Note 43

Similarly, a determination that the claimant had an internal flight alternative (IFA) when they left the country would preclude the application of the compelling reasons exception, since the person could not have been determined to be a Convention refugee.Note 44

In Zuniga,Note 45 the claimant challenged the RAD's IFA determination in the context of section 108(4). The claimant fled his home state in 2005 and spent the next 12 years in the United States. Eventually, he came to Canada and sought refugee protection. The IRB considered Roatán to be a reasonable IFA in both 2005 and 2018 and concluded that no “compelling reasons” analysis was required. On appeal, Mr. Zuniga accepted that there was a viable IFA in 2018 but not at the time when he fled Honduras in 2005. The Federal Court quashed the decision, noting that “the RAD considered the viability of the proposed IFA on Roatán with the benefit of hindsight, not from the vantage point of 2005, when Mr. Zuniga fled persecution.” It explained that:

the Minister suggests the RAD's statement that Mr. Zuniga's brother “had been living safely at the IFA since 2003” is an indication that the RAD considered the IFA's viability from the perspective of 2005, and not only from the perspective of 2018. I disagree. The RAD twice observed that Mr. Zuniga's brother had lived on Roatán without incident for 15 years, and concluded that after this length of time the [criminal organization] had likely forgotten entirely about them both.

It was incumbent on the RAD to consider whether, seen from the vantage point of 2005, Roatán was a reasonable IFA in all of the prevailing circumstances . These would include the likelihood of the [criminal organization's] ongoing persecution of Mr. Zuniga on Roatán, viewed without the benefit of hindsight.

The Court concluded that “the RAD did not assess whether it would have been reasonable for Mr. Zuniga to relocate to Roatán, where his older brother had been living only briefly, so soon after Mr. Zuniga had been tortured and his younger brother had been murdered. If the RAD concluded, having regard to all of the circumstances, that it was not reasonable for Mr. Zuniga to relocate to Roatán in 2005, then he was potentially a Convention refugee or person in need of protection at the time he fled Honduras.”

7.2.3. Duty to consider section 108(4)

In Yamba,Note 46 the Court of Appeal clarified the law in this area when it stated:

[…]in every case in which the Refugee Division concludes that a claimant has suffered past persecution, but [there] has been a change of country conditions under paragraph 2(2)(e) [of the Immigration Act], the Refugee Division is obligated under subsection 2(3) to consider whether the evidence presented establishes that there are “compelling reasons” as contemplated by that subsection. This obligation arises whether or not the claimant expressly invokes subsection 2(3). That being said the evidentiary burden remains on the claimant to adduce the evidence necessary to establish that he or she is entitled to the benefit of that subsection.Note 47

The same principle would hold true with regard to section 108(4) of IRPA. It follows, therefore, that where the Board finds that the claimant has suffered no past persecution (explicitly or implicitly),Note 48 it is under no obligation to consider the compelling reasons exception.

In Alfaka Alharazim,Note 49 the Court provided the following guidance on this issue:

[31] […] it is settled law that the RPD is entitled to proceed directly to a forward-looking assessment of whether the applicant for refugee protection has a well-founded fear of future persecution, without first making a determination of whether a person has suffered past persecution and, if so, whether subsection 108(4) applies.

[44] That said, given the underlying spirit of subsection 108(4), I agree with the [claimants] that there may be some situations in which the nature of past persecution is so severe that it would be contrary to that spirit and a reviewable error for anyone reviewing an application for refugee protection in such situations to fail to consider the potential applicability of that provision, notwithstanding the settled law that the focus of the assessment to be made under sections 96 and 97 of the IRPA is forward-looking in nature.

[53] […] it is appropriate to confine that category of situations to those that in which there is prima facie evidence of “appalling” or “atrocious” past persecution. In those cases, a decision-maker under the IRPA is required to perform an assessment under subsection 108(4) of the IRPA. In all other cases, a decision-maker may exercise discretion as to whether to perform such an assessment.

In Gomez Dominguez,Note 50 the Federal Court held that the RAD failed to consider the application of section 108(4) to Ms. Gomez's case. Several members of the claimant's family, including her husband, were tortured and murdered by the FARC. This was accepted by the RAD. It further found that there was a change in circumstances but dismissed the claim because the family had a viable IFA. The Federal Court held that the IFA analysis focused on the present and not the past. Since the claimants had no IFA at time of their escape, the RAD had a duty to consider section 108(4).

7.2.4. Meaning of “compelling reasons”

In Obstoj,Note 51 Justice Hugessen of the Court of Appeal held that section 2(3) of the Immigration Act – now section 108(4) of IRPA – should be read

as requiring Canadian authorities to give recognition of refugee status on humanitarian grounds to this special and limited category of persons, i.e. those who have suffered such appalling persecution that their experience alone is compelling reason not to return them, even though they may no longer have any reason to fear further persecution.

The phrase “appalling persecution” is similar to the language in paragraph 136 of the UNHCR Handbook, which states in part:

It [i.e., the “compelling reasons” exception] deals with the special situation where a person may have been subjected to very serious persecution in the past and not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. […] The exception, however, reflects a more general humanitarian principle, which could also be applied to refugees other than statutory refugees.  It is frequently recognized that a person who – or whose family – has suffered under atrocious forms of persecution should not be expected to repatriate.

Justice Hugessen went on to state, in Obstoj (at 748), that “[t]he exceptional circumstances envisaged by subsection 2(3) [of the Immigration Act] must surely apply only to a tiny minority of present day claimants.”Note 52

The case law indicates that the threshold necessary to demonstrate “compelling reasons” is a high one. In Nimo Ali Hassan, Justice Rothstein stated:

While many refugee claimants might consider the persecution they have suffered to fit within the scope of subsection 2(3) [of the Immigration Act] it must be remembered that the nature of all persecution, by definition, involves death, physical harm or other penalties. Subsection 2(3), as it has been interpreted, only applies to extraordinary cases in which the persecution is relatively so exceptional, that even in the wake of changed circumstances, it would be wrong to return refugee claimants.Note 53

Ultimately, the issue as to whether “compelling reasons” exist in a given case is a question of fact.Note 54 Each case must be assessed and decided on its own merits, based on the totality of the evidence.Note 55 However, the delineation of the concept of “compelling reasons” is a question of law.Note 56

In Shahid,Note 57 the Federal Court set out relevant considerations for determining whether “compelling reasons” exist:

The board, once it embarked upon the assessment of the applicant's claim under subs. 2(3) [of the Immigration Act], had the duty to consider the level of atrocity of the acts inflicted upon the applicant, the repercussions upon his physical and mental state, and determine whether this experience alone constituted a compelling reason not to return him to his country. 

7.2.5. Level or severity of harm

In the MoyaNote 58 case, the Court dealt with the issue of the level of severity required for compelling reasons to apply and noted the two approaches that have emerged in the jurisprudence, the narrow one based on Obstoj, which requires a finding that the persecution be “atrocious” or “appalling”, and the broader one based on cases such as Suleiman,Note 59 which adopts a factual determination of “compelling reasons” based on all the circumstances of the case, including a consideration of the trauma caused by repatriation.

​The Court in Moya does not explicitly adopt one test over the other although it does seem to state that the preponderance of the case law adopts Obstoj as the correct test:

[129] However, if the RAD had imposed the atrocious and appalling threshold, I would not find that it erred in law. The RAD cannot be faulted for relying on the jurisprudence that reflects that the level of atrocity of past persecution must be considered and the preponderance of the jurisprudence that reflects that appalling and/or atrocious past persecution is the high threshold required to establish compelling reasons. The RAD considered Suleiman; however, since Suleiman and Kotorri were decided in 2004 and 2005, other jurisprudence has continued to refer to appalling and atrocious past persecution to guide determinations of whether an applicant has established compelling reasons.

As noted, the jurisprudence has not been consistent on the issue of whether the previous persecution (or treatment under section 97(1) of IRPA) must reach the level of being “atrocious” or “appalling” for the “compelling reasons” exception to apply.

The standard imported by words such as “atrocious” and “appalling” (this language is found in the Court of Appeal decision in Obstoj and the UNHCR Handbook) has been applied in numerous Federal Court decisions to describe the level of past persecution required for “compelling reasons”, for example, Arguello-Garcia, Hassan, Shahid, Nwazoor, Isacko, Saimir Kulla, among others. One case held that the words “appalling” and “atrocious” are proper interpretative aids to guide the Board (see Adjibi). In Shpati,Note 60 the Court stated, in obiter, that there is no jurisprudence that raises a doubt about the correctness of the “appalling and atrocious” test

Another line of cases, however, has questioned whether the Obstoj decision established such a test or has held that it did not: Hasan Kulla, Dini, Elemah, Suleiman, and Kotorri. In Ismail,Note 61 the Federal Court held that “while the exception requires a showing of compelling reasons, it does not require that the claimant establish “atrocious” or “appalling” mistreatment”.

In Arguello-Garcia, in assessing the “objective factors” (i.e., the nature and severity of the claimant’s experiences), the Trial Division turned to dictionary definitions of “atrocious” and “appalling” for guidance on the issue of what may be considered sufficiently serious persecution to find “compelling reasons”.Note 62

In Hasan Kulla,Note 63 however, the Court held that the issue is not whether the claimant’s past experience could be characterized as “atrocious” and “appalling”, but rather, as Justice Reed stated in Dini: “If the person establishes there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left.”Note 64

In the subsequent judicial review of Dini, it was argued that Justice Reed implicitly determined that under section 2(3) of the Immigration Act, the treatment might not have to reach the level of “appalling” or “atrocious”. The confusion in the case law of the Trial Division regarding the issue of the proper test to assess “compelling reasons” led the Court to certify a question.Note 65 Subsequently, in Elemah,Note 66 the Trial Division held that Obstoj did not establish a test which necessitates that the persecution reach a level to qualify it as “atrocious” and “appalling”.

In Adjibi,Note 67 the Trial Division concluded that it did not have to consider whether in every case the standard of “compelling reasons” is subsumed in an inquiry into prior “appalling” and “atrocious” persecution. In view of the evidence before the CRDD (the claimant had been raped repeatedly), the words “appalling” and “atrocious” were proper interpretative aids to guide the CRDD as to whether the evidence supported the claimant’s submission that compelling reasons existed not to return her to her country.

The issue arose again in Suleiman,Note 68 where the Federal Court reiterated that section 104(8) of IRPA does not require a determination that the acts or situation be “atrocious” or “appalling”. The issue is whether, considering the totality of the situation, i.e., humanitarian grounds, unusual or exceptional circumstances, it would be wrong to reject the claim in the wake of a change of circumstances. Consideration should be given to the claimant’s age, cultural background and previous social experiences. Being resilient to adverse conditions will depend on a number of factors which differ from one individual to another. Past acts of torture and extreme acts of mental abuse, alone, in view of their gravity and seriousness, can be considered “compelling reasons” despite the fact that these acts have occurred many years before.

7.2.6. Psychological evidence and psychological after-effects

Medical reports and psychological assessments addressing present and past psychological and emotional suffering can be used to demonstrate past persecution.

However, it must be noted that, the existence of such psychological evidence is not a separate test that has to be met.

In Mwaura,Note 69 the Court held that s. 108(4) does not require a psychological report from all those claiming compelling reasons for the following reasons: (1) it runs contrary to well-established jurisprudence; (2) it unreasonably fetters the discretion of the decision-maker; and (3) it imposes too high a burden on refugee claimants.

If the claimant presents this evidence, the Board should weight it in its assessment. In Arguello-Garcia, the Federal Court stated that in considering the particular persecution experienced, as well as the reasons for it, the Board should also take into account the negative or psychological effects of past persecution.Note 70 Since such evidence is supportive of the existence of compelling reasons, it should not be disregarded.

In Ruiz Triana, the Court quashed the decision because the Officer failed to engage with the psychological and psychiatric evidence in a meaningful way. According to the Federal Court, “this was not just a case of one psychological or psychiatric or medial report based on a two-hour meeting in contemplation of litigation. Rather, there were lengthy reports from various professionals in two different countries […]. The most recent psychologic report, which was written some 6 years after the initial reports both from Colombia and Canada, states that the Applicant is continuing to suffer trauma from the stabbing to his face and body, accompanying threats not to go to the police, and subsequent death threats at his places of residence”.Note 71 The Court faulted the Board for not explaining why these events did not meet the requirements of section 108(4).

Evidence of continuing psychological after-effects, or its absence,Note 72 is relevant to a determination of whether there are compelling reasons. However, there is no legal requirement to show continuing psychological after-effects. In Jiminez,Note 73 Justice Rouleau held that the jurisprudence does not support the proposition that there is a further requirement of establishing continuing psychological after-effects of previous persecution, once there is evidence the claimant suffered “atrocious” or “appalling” acts of persecution.

In Hinson,Note 74 the Court stated: “The criteria to be considered are the psychological and emotional states of the claimant both at the time of the persecution and at the present time as a result of the persecution.” It then directed the CRDD to consider “the negative or psychological effects of past persecution as well as present psychological and emotional suffering as a result of past persecution ”.

In Hitimana,Note 75 although the claimant contended that the incidents he had experienced resulted in trauma (as a teenager, 5-7 years before his arrival in Canada, he witnessed the murder and disappearance of close family members in Rwanda), neither he nor an expert substantiated this statement. Moreover, as the claimant demonstrated that he could adapt well and was resourceful, it was not patently unreasonable to conclude that he was not suffering from any psychological trauma that constituted a compelling reason.

If the RPD accepts the claimant's description of his or her treatment, and the medical and psychological reports are consistent with that description, a delay in seeking medical treatment does not appear to be a relevant factor.Note 76

7.2.7. Persecution of others

As was noted above, the claimant must show the existence of past persecution which amounts to compelling reasons.

In several decisions, the Court held that the Board may consider the experiences of family members in its assessment of compelling reasons .Note 77

According to Velasquez, persecution of a family member can be sufficient to constitute compelling reasons.Note 78 However, the obiter comment in Velasquez was not followed in Saimir Kulla,Note 79 where the Federal Court held that the claimant must suffer the mistreatment directly. 

In the most recent case of Villegas Echeverri,Note 80 the Court referred to paragraph 136 of the UNHCR Handbook and noted that the past persecution contemplated in the second paragraph of Article C(5) of the Convention which is equivalent to section 108(4) of IRPA, extends to persecution of family members of the refugee claimant.  As the Court explained in paragraph 37:

…where the prima facie evidence of “appalling” or “atrocious” past persecution concerns the past persecution of an immediate family member, there must also be credible evidence that could establish either some direct past persecution of the specific applicant for refugee protection, or persecution of that person’s family as a social group.

7.2.8. Generalized persecution

The generalized character of past persecution in a particular country should not serve as a bar to the application of the “compelling reasons” exception.Note 81

7.2.9. Return to the country of persecution and persecutory incidents across multiple states

A brief return to the country of alleged persecution does not necessarily preclude the application of the “compelling reasons” exception.Note 82

In Adjibi,Note 83 the Trial Division held that the CRDD was not obliged to consider section 2(3) of the Immigration Act in respect of the incidents that took place when the claimant, a national of the Congo, resided in South Africa. Persecutory treatment in another country cannot justify a refusal to avail oneself of the protection of one’s home country. However, these events may exaggerate or amplify the effect of the persecutory conduct, and the Board must take refugee claimants as they are at the time of the hearing before the Board in order to determine whether the claimant should not be expected to repatriate. In this case, the CRDD would properly have had regard to the cumulative effect on the claimant of the events she experienced both in the Congo and South Africa.

7.2.10. Adequacy of reasons

In Adjibi,Note 84 the Trial Division stressed that the reasons given by the CRDD for concluding that section 2(3) of the Immigration Act does not apply must be adequate.  In that case, the reasons of the CRDD were simply that there was “insufficient evidence” to warrant the application of section 2(3). The Court found that it was not clear what the panel meant when it spoke of “insufficient evidence”.

Secondly, the panel must provide a sufficiently intelligible explanation as to why persecutory treatment does not constitute compelling reasons (the claimant in Adjibi was found to have been raped repeatedly and was diagnosed with Post-Traumatic Stress Disorder). This requires a thorough consideration of the level of atrocity of the acts inflicted upon the claimant, the effect on her physical and mental state, and whether the experiences and their sequelae constitute a compelling reason not to return her to her country of origin.Note 85

The Federal Court faulted the Officer in RavichandranNote 86 for stating that the exception provided by subsection 108(4) did not apply, without supplying reasons in conjunction with this statement.

In summary, the RPD is required to assess whether or not the nature of the persecution in a particular case before it constitutes “compelling reasons”, and it must explain why the reprehensible treatment, does or does not meet the requirements of section 108(4) of IRPA.Note 87  Thus, if the Board finds the treatment received by the claimant to be “revolting” or “vile and reprehensible”, as it did in Biakona,Note 88 it should go on to state (which it failed to do in that case) why it concluded that the acts committed cannot be considered compelling reasons.

Notes

Note 1

In Moore, the Trial Division held that the terms of reference for applying section 2(3) of the former Immigration Act are changes in country conditions, and not changes in the personal circumstances of an individual claimant. The wording of that provision and section 108(1)(e) of IRPA, however, does not suggest that the changes are restricted to changes in country conditions. See Moore, Clara v. M.C.I. (F.C.T.D., no. IMM-682-00), Heneghan, October 27, 2000.

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Note 2

Alfarsy, Asma Haidar Jabir v. M.C.I. (F.C., no. IMM-3395-02), Russell, December 12, 2003; 2003 FC 1461.

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Note 3

Buterwa, Bongo Tresor v. M.C.I. (F.C., no. IMM-902-11), Mosley, October 19, 2011; 2011 FC 1181.

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Note 4

Kerimu, Calvin v. M.C.I. (F.C., no. IMM-9793-04), Blanchard, February 28, 2006 ; 2006 FC 264. This decision was followed in Stankov, Todor Georgiev v. M.C.I. (F.C., no. IMM-6712-05), Blais, August 6, 2006; 2006 FC 991; and in Sarker, Sanjoy v. M.C.I. (F.C., no. IMM-6418-13), de Montigny, December 3, 2014; 2014 FC 1168, where the Court agreed with the applicant that when a hearing is conducted by reverse order-questioning (member first, then counsel), “the person with the onus is no longer in control of the process and there is an increased burden on the Board to ensure that issues which are determinative of the claim are raised at the hearing.”

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Note 5

Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.).

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Note 6

In Stoyanov, Gueorgui Ivanov v. M.E.I. (F.C.A., no. A-206-91), Hugessen, Mahoney, Décary, April 26, 1993, at 2, Justice Hugessen, speaking for the Court, stated: “… when the [Refugee] Division has a refugee claim before it, it must apply the test stated by this Court in Adjei, and not […] the test (assuming that it is different) that would apply to an application for loss of status (“cessation”) made by the Minister under s. 69.2 [now s. 108(2 )].”  Some decisions of the Trial Division, in the context of the debate on the “Hathaway test”, have taken the position that there may be a different (i.e., higher) standard of proof that is applied at a cessation hearing under section 69.2 of the Immigration Act, e.g., Villalta, Jairo Francisco Hidalgo v. S.G.C. (F.C.T.D., no. A-1091-92), Reed, October 8, 1993.  See, however, Youssef, Sawsan El-Cheikh v. M.C.I. (F.C.T.D., no. IMM-990-98), Teitelbaum, March 29, 1999, which actually involved a cessation application, for a different view.  See also M.C.I. v. Serhan, Jaafar (F.C.T.D., no. IMM-539-00), Dawson, September 19, 2001; 2001 FCT 1029, which held that the correct test on applications for cessation is whether changes occurred which rendered the previously established fear of persecution to be unfounded.

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Note 7

See James C. Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991), pages 200-203. When discussing the cessation clause, which has been incorporated into section 108(1)(e) of the Immigration and Refugee Protection Act and was previously found in section 2(2)(e) of the Immigration Act, Professor Hathaway stated that the changes must be shown to be of (1) substantial political significance, (2) truly effective, and (3) durable.  This is the three-prong “Hathaway test” referred to in the jurisprudence.

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Note 8

Yusuf, Sofia Mohamed v. M.E.I. (F.C.A., no. A-130-92), Hugessen, Strayer, Décary, January 9, 1995.  Reported: Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N.R. 11 (F.C.A.). Leave to appeal to the S.C.C. denied June 22, 1995.

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Note 9

Rahman, Sheikh Mohammed Mostafizur v. M.E.I. (F.C.A., no. A-398-92), Hugessen, Létourneau, Robertson, March 3, 1995, at 1.

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Note 10

Fernandopulle, Eomal v. M.C.I. (F.C.A., no. A-217-04), Sharlow, Nadon, Malone, March 8, 2005; 2005 FCA 91. In Anthonipillai, Anton Jekathas v. M.C.I. (F.C., no. IMM-1273-13), Simpson, June 25, 2014; 2014 FC 611, the Court rejected the applicant’s argument that the RPD had erred in not applying the three-pronged test (substantial, effective and durable) and noted that “the law is now clear that there is no such test.”

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Note 11

Rahman, Faizur v. M.E.I. (F.C.A., no. A-1244-91), Marceau, Desjardins, Létourneau, May 14, 1993 at 2, per Marceau J.A.: “Whether a change of circumstances is sufficient for a fear of persecution to be no longer well-founded must naturally be determined in relation to the basis of and reasons for the fear relied on.”

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Note 12

See, for example, Umana, Cesar Emilio Campos v. M.C.I. (F.C. no. IMM-1434-02), Snider, April 2, 2003; 2003 FCT 393 where the claimant was targeted due to his relationship with his partner. Since the relationship had broken down since they arrived in Canada, the Court upheld the RPD’s conclusion that this constituted a change in circumstances such that the claimant was no longer at risk.

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Note 13

Kifoueti, Didier Borrone Bitemo v. M.C.I. (F.C.T.D., no. IMM-937-98), Tremblay-Lamer, February 11, 1999. In this case, as in Vodopianov, Victor v. M.E.I. (F.C.T.D., no. A-1539-92), Gibson, June 20, 1995, the changes were so recent that there was no evidence to indicate how the new regime would behave.

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Note 14

In Rahman, Faizur v. M.E.I. (F.C.A., no. A-1244-91), Marceau, Desjardins, Létourneau, May 14, 1993,  at 3, the ouster of President Ershad (in Bangladesh) followed by the electoral victory of the claimant’s party, in the view of Marceau J.A., “may, in themselves, recent though they have been, amount to a sufficient change of circumstances, given the basis of the fear on which the [claimant] relied.” However, in Ahmed, Ali v. M.E.I. (F.C.A., no. A-89-92), Marceau, Desjardins, Décary, July 14, 1993, Marceau J.A. cautioned that “the mere declarations of the new four-month old government that it favoured the establishment of law and order can hardly be seen, when the root of the [claimant’s] fear and the past record of the new government with respect to human rights violations are considered, as a clear indication of the meaningful and effective change which is required to expunge the objective foundation of the …[…] claim.” On the other hand, when dealing with changes of longer duration, in Ofori, Beatrice v. M.E.I. (F.C.T.D., no. IMM-3312-94), Gibson, March 14, 1995, the Court stated at 4: “Durability does not equate with permanence. …[…] the concept of meaningful and effective change implies an element of durability, not in an absolute sense but in a comparative sense …””. The Court came to a similar conclusion in Castellanos, Julio Alfredo Vaquerano v. M.C.I. (F.C.T.D., no. IMM-2082-94), Gibson, October 18, 1994. Reported: Castellanos v. Canada (Minister of Citizenship and Immigration) (1994), 30 Imm. L.R. (2d) 77 (F.C.T.D.), where Gibson J. stated at 80: “I know of no decision of this court that has adopted the position that changes must be: ‘…‘[…] durable in the sense that there is no possible chance of a reversal in the future.’” Moreover, after conceding that “the situation was not perfect and that some unrest continued,” the Court in Belozerova, Natalia v. M.C.I. (F.C.T.D., no. IMM-912-94), Simpson, May 25, 1995, stated at 4: “No one can predict the future and there is no doubt that, in situations charged with ethnic rivalry, there will always be some uncertainty.” In Ruiz Triana v. Canada (Minister of Citizenship and Immigration), 2019 FC 1431, the Federal Court allowed the judicial review application, noting that the Officer “did not address evidence of the ongoing risk posed to the Applicant in his forward looking fear by dissident FARC members. While the Board found the Applicant held a subjective fear, it discounted any objective fear. In order to have been reasonable, it needed to engage with the credible sources that reported FARC breakaway individuals and groups that continued to operate underground in Colombia.”

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Note 15

In Abarajithan, Paramsothy v. M.E.I. (F.C.A., no. A-805-90), Stone, MacGuigan, Linden, January 28, 1992, the CRDD was found to have relied incorrectly on tentative changes in Sri Lanka (cooperation between the Tigers and the Sri Lankan Army). In Magana, Douglas Ivan Ayala v. M.E.I. (F.C.T.D., no. A-1670-92), Rothstein, November 10, 1993 at 303-304, the Court categorized the articles published before or at the time of the three-month-old peace accord in El Salvador as “preliminary, tentative indications of the effect of the changes …[… ] especially in light of contrary evidence …[…] that the peace process was in danger and death squad activity continued.” In Agyakwah, Elizabeth Lorna v. M.E.I. (F.C.T.D., no. A-7-93), McKeown, December 10, 1993, the CRDD was found to have erred in relying on the lifting of the ban on political parties just two days prior to the hearing where no change of government had occurred and the poor human rights record of the Ghanaian government was longstanding. In Antonio, Neto Xavier v. M.C.I. (F.C.T.D., no. A-472-92), Noël, January 27, 1995, the CRDD erroneously relied on tentative changes in Angola: the peace accord was only a few days old; the same regime was in power; elections were supposed to take place in 18 months; a previous accord had failed; the accord contained no guarantee for former enemies of the regime. In Chaudary, Imran Akram v. M.C.I. (F.C.T.D., no. IMM-2048-94), Reed, May 4, 1995, the Court held, at 4, that the statement that “a greater possibility of stability” than existed previously did not carry “sufficient weight to counterbalance a finding that an objective basis would otherwise exist.” In Quaye, Sarah Adjoa v. M.C.I. (F.C.T.D., no. IMM-3999-00), Tremblay-Lamer, May 23, 2001; 2001 FCT 518, the Court noted that “cultural and traditional normes [sic] do not change overnight,” and that “the mere enactment of new laws” may not be in itself sufficient to remove the objective basis of the claim. In Alfarsy, supra, Note 1 ,Alfarsy, Asma Haidar Jabir v. M.C.I. (F.C., no. IMM-3395-02), Russell, December 12, 2003; 2003 FC 1461, the Court stated that declarations of intent must be examined against the history of the conflict with a view to evaluating the likely permanence of the changes.

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Note 16

Soe, Than v. M.P.S.E.P. (F.C. no. IMM-2957-17), Kane, May 30, 2018; 2018 FC 557, paras 114-122.

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Note 17

Mohamed, Mohamed Yasin v. M.E.I. (F.C.T.D., no. A-1517-92), Denault, December 16, 1993, at 4.

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Note 18

Hernandez, Alvaro Odilio Valladares v. M.E.I. (F.C.A., no. A-210-90), Stone, Linden, McDonald, July 7, 1993.

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Note 19

See Rules 36, 43 and 50 of the Refugee Protection Division Rules.

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Note 20

M.E.I. v. Salinas, Marisol Escobar (F.C.A., no. A-1323-91), Stone, MacGuigan, Henry, June 22, 1992. Reported: Canada (Minister of Employment and Immigration) v. Salinas (1992), 17 Imm. L.R. (2d) 118 (F.C.A.).

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Note 21

Ahmed, Ali v. M.E.I. (F.C.A., no. A-89-92), Marceau, Desjardins, Décary, July 14, 1993, Marceau J.A.

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Note 22

Chowdhury, Mashiul Haq v. M.E.I. (F.C.T.D., no. 92-A-6565), Noël, June 2, 1993; Munkoh, Frank v. M.E.I. (F.C.T.D., no. IMM-4056-93), Gibson, June 3, 1994; Ventura, Simon Alberto v. M.E.I. (F.C.T.D., no. IMM-6061-93), Cullen, October 5, 1994; Hanfi, Aden Abdullah v. M.E.I. (F.C.T.D., no. A-610-92), Gibson, March 31, 1995. In Alam, Mohammed Mahfuz v. M.C.I. (F.C.T.D., no. IMM-4883-97), McGillis, October 7, 1998, the Court held that the CRDD failed to consider the specific evidence that the claimant’s problems with the police and with goons of the BNP continued after the election of the Awami League.

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Note 23

Doganian, Rafi Charvarch v. M.E.I. (F.C.A., no. A-807-91), Hugessen, MacGuigan, Décary, April 26, 1993. In Moz, Saul Mejia v. M.E.I. (F.C.T.D., no. A-54-93), Rothstein, November 12, 1993. Reported: Moz v. Canada (Minister of Employment and Immigration) (1993), 23 Imm. L.R. (2d) 67 (F.C.T.D), the claim was referred back to the CRDD to obtain evidence relating to the treatment of army deserters in El Salvador. See also Vodopianov, supra, Note 16, Victor v. M.E.I. (F.C.T.D., no. A-1539-92), Gibson, June 20, 1995, and Kifoueti, supra, Note 16,Kifoueti, Didier Borrone Bitemo v. M.C.I. (F.C.T.D., no. IMM-937-98), Tremblay-Lamer, February 11, 1999, where the changes were so recent that there was no evidence to indicate how the new regime would behave. In Alfarsy, supra, Note 1,, Asma Haidar Jabir v. M.C.I. (F.C., no. IMM-3395-02), Russell, December 12, 2003; 2003 FC 1461, the Court held that if the legal action against the claimants was politically based, there is no reason to assume that they would be treated differently from other party members who had previously suffered persecution, legal harassment and incarceration.

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Note 24

Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.), at 746.

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Note 25

Although section 2(3) of the Immigration Act is framed as an exception to section 2(2)(e), there was no requirement for a formal determination of cessation of status in the context of a hearing under section 69.1 (as would be required in the context of a hearing under section 69.2 of that Act). The same can be said about section 108(4) of IRPA.

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Note 26

Isacko, Ali v. M.C.I. (F.C., no. IMM-9091-03), Pinard, June 28, 2004; 2004 FC 890.  The Court then went on to endorse the decision in Shahid, Iqbal v. M.C.I. (F.C.T.D., no. IMM-6907-93), Noël, February 15, 1995.  Reported: Shahid v. Canada (Minister of Citizenship and Immigration) (1995), 28 Imm. L.R. (2d) 130 (F.C.T.D.), which was decided under the Immigration Act.

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Note 27

The difference between the two provisions is that, under IRPA, “compelling reasons” may arise out of previous persecution, torture, treatment or punishment, while the Immigration Act referred only to previous persecution.

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Note 28

Martinez, Luis Amado Contreras v. M.C.I. (F.C., no. IMM-3662-05), Noël, March 17, 2006; 2006 FC 343; Lorne, Daniella Chandya v. M.C.I. (F.C., no. IMM-3542-05), von Finckenstein, March 27, 2006; 2006 FC 384; and Stapleton, Elizabeth Sylvia v. M.C.I. (F.C., no. IMM-1315-06), Blanchard, November 1, 2006; 2006 FC 1320.

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Note 29

Najdat, Parviz v. M.C.I. (F.C., no. IMM-3995-05), Russell, March 9, 2006; 2006 FC 302. The Court also rejected the argument “that  the psychological trauma resulting from the lashing and treatment by Iranian authorities should give rise to a compelling reasons analysis under section 108(4) as a separate and distinct avenue for seeking protection, rather than an exception that should be considered where past persecution sufficient to qualify for refugee protection has been established and accepted but refugee status should not be conferred because the "reasons for the claim have ceased to exist.”

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Note 30

Ismail v. Canada (Minister of Citizenship and Immigration), 2016 FC 650, para 13.

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Note 31

Najdat, Parviz v. M.C.I. (F.C., no. IMM-3995-05), Russell, March 9, 2006; 2006 FC 302.

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Note 32

In Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.) at 748, Justice Hugessen stated that the exception applies, “ […] even though they may no longer have any reason to fear further persecution.” This interpretation was followed in Hassan, Nimo Ali v. M.E.I. (F.C.T.D., no. A-653-92), Rothstein, May 4, 1994.

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Note 33

Jairo, Marcos Amador Soto v. M.C.I. (F.C., no. IMM-3864-13), de Montigny, June 26, 2014; 2014 FC 622.

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Note 34

Cortez, Delmy Isabel v. S.S.C. (F.C.T.D., no. IMM-2482-93), McKeown, December 15, 1993, at 2. In Sow, Kadiatou v. M.C.I. (F.C., no IMM-1493-11), Russell, November 16, 2011; 2011 FC 1313, the Court stated  that s. 108 (4) is engaged when the reasons for the claim have ceased to exist due to changed country conditions, not a change in personal circumstances. However, this restriction does not appear to have been explicitly adopted in other cases. Other cases refer to the requirement for a change in country conditions but do not go on to explicitly exclude changes in personal circumstances.

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Note 35

Hassan, Noor v. M.E.I. (F.C.A., no. A-831-90), Isaac, Heald, Mahoney, October 22, 1992. Reported: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Brovina, Qefsere v. M.C.I. (F.C., no. IMM-2427-03), Layden-Stevenson, April 29, 2004; 2004 FC 635; and Kalumba, Banza v. M.C.I. (F.C., no. IMM-8673-04), Shore, May 17, 2005; 2005 FC 680. There is some confusion in the pre-Cihal case law as to what point in time the claimant had to have met the requirements for Convention refugee. For example, in Singh, Gurmeet v. M.C.I. (F.C.T.D., no. IMM-75-95), Richard, July 4, 1995. Reported: Singh, (Gurmeet) v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm. L.R. (2d) 226 (F.C.T.D.), at 230, the Court referred to the fact that the claimant “might at one time have been a Convention refugee” (emphasis added). As noted above, the principle of alienage applies as per sections 96 and 97 of the IRPA.

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Note 36

Cihal, Pavla v. M.C.I. (F.C.A., no. A-54-97), Stone, Evans, Malone, May 4, 2000. See also M.C.I. v. Dolamore, Jessica Robyn (F.C.T.D., no. IMM-4580-00), Blais, May 1, 2001; 2001 FCT 421, where the Court held that the CRDD erred in not examining the issue of state protection regarding the claimant’s objective fear before considering whether there was a change of circumstances (and compelling reasons). In Adjibi, Marcelle v. M.C.I. (F.C.T.D., no. IMM-2580-01), Dawson, May 8, 2002; 2002 FCT 525, the Court held that the CRDD erred in not considering whether section 2(3) of the Immigration Act applied to the minors’ claims, since the principal claimant had been found to be persecuted and the claims of all of the claimants were dismissed on the basis of changed country conditions.

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Note 37

Salazar v Canada (Minister of Citizenship and Immigration), [2011] FCJ No 976 (QL), 2011 FC 777 at 31.

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Note 38

Zuniga v. Canada (Minister of Citizenship and Immigration), 2020 FC 48, para 19.

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Note 39

Corrales, Maria Cecilia Abarca v. M.C.I. (F.C.T.D., no. IMM-4788-96), Reed, October 3, 1997. See also Naivelt, Andrei v. M.C.I. (F.C., no. IMM-9552-03), Snider, September 17, 2004; 2004 FC 1261 ; Martinez, Luis Amado Contreras v. M.C.I. (F.C., no. IMM-3662-05), Noël, March 17, 2006; 2006 FC 343 and Stapleton, Elizabeth Sylvia v. M.C.I. (F.C., no. IMM-1315-06), Blanchard, November 1, 2006; 2006 FC 1320; Pazmandi v Canada (Citizenship and Immigration), 2020 FC 1094.

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Note 40

In Ortiz, Ligia Ines Arias v. M.C.I. (F.C.T.D., no. IMM-4416-01), Pinard, November 13, 2002; 2002 FCT 1163, the CRDD determined that the claimant had not established that she was in fact at risk from her former employer. Since there were no changed country conditions, the exception did not apply.  See also Thiaw, Hamidou v. M.C.I. (F.C., no. IMM-6877-05), Blais, August 14, 2006; 2006; 2006 FC 965, where the RPD determined that the claimant was a victim of discrimination and not persecution. The Court held that in the absence of a previous finding of persecution, the compelling reasons exception does not apply.

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Note 41

In Kudar, Peter v. M.C.I. (F.C., no. IMM-2218-03), Layden-Stevenson, April 30, 2004; 2004 FC 648, the Court stated that:

[…] there may be situations where the board can be said to implicitly have found that a claimant was previously a refugee and, but for the changed country conditions, would still be a refugee. This is not such a case. The RPD found that police protection was available to Mr. Kudar. Thus, the board found that he was not a refugee. The changed country conditions do not apply. Nor does the exception of compelling reasons […]

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Note 42

Komaromi v. Canada (Minister of Citizenship and Immigration), 2018 FC 1168, para 33.

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Note 43

Gyamfuah, Cecilia v. M.E.I. (F.C.T.D., no. IMM-3168-93), Simpson, June 3, 1994. Reported:  Gyamfuah v. Canada (Minister of Employment and Immigration) (1994), 25 Imm. L.R. (2d) 89 (F.C.T.D.), at 94; Abdul, Gamel v. M.C.I. (F.C.T.D., no. IMM-1796-02), Snider, February 28, 2003; 2003 FCT 260. See also Rahman, Kbm Abdur v. M.C.I. (F.C., no. IMM-4634-06), Snider, July 3, 2007; 2007 FC 689, where the rationale was applied in relation to section 108(4) of IRPA since the Board did not believe the claimants’ fear of past persecution in their country (Bangladesh). Similarly, in Krishan, Bal v. M.C.I. (F.C. no. IMM-1113-18), McVeigh, November 29, 2018; 2018 FC 1203, the Court stated that it was a “condition precedent” that the claimant would have once qualified as either a Convention refugee or person in need of protection. Since the RPD disbelieved the claimant, there was no condition precedent for the application of the compelling reasons exception.

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Note 44

Sangha, Karamjit Singh v. M.C.I. (F.C.T.D., no. IMM-1555-98), Reed, September 8, 1998; Kalumba, Banza v. M.C.I. (F.C., no. IMM-8673-04), Shore, May 17, 2005; 2005 FC 680. In Singh, Gurmeet v. M.C.I. (F.C.T.D., no. IMM-75-95), Richard, July 4, 1995. Reported:  Singh, (Gurmeet) v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm. L.R. (2d) 226 (F.C.T.D.), the Court held that, since the determination was based, in part, on a change of circumstances, the finding that the claimants had an IFA did not excuse the panel from considering the “compelling reasons” exception, given the past persecution and supporting medical report.  In Rabbani, Sayed Moheyudee v. M.C.I. (F.C.T.D., no. IMM-236-96), Noël, January 16, 1997, the Court held that the CRDD had erred, for among other reasons, because its finding that the claimant had an IFA in Afghanistan was inconsistent with its implied finding that there must have been a fear of persecution throughout the country prior to the change of circumstances.

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Note 45

Zuniga v. Canada (Minister of Citizenship and Immigration), 2020 FC 488, paras 26-27.

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Note 46

M.C.I. v. Yamba, Yamba Odette Wa (F.C.A., no. A-686-98), Isaac, Robertson, Sexton, April 6, 2000.

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Note 47

The principles in Yamba were recently confirmed in Cabdi, Mhad Cali v. M.C.I. (F.C., no.IMM-1365-15), Gleeson, January 8, 2016; 2016 FC 26, where the Court found the RAD’s failure to consider the compelling reasons exception to be a reviewable error because the RAD decision reflected that the applicant had suffered past persecution, and that the reasons for which the applicant was seeking refugee protection had ceased to exist. Also see Velez, Daniel Augusto Aristizabal v. M.C.I. (F.C., no. IMM-3964-17), Brown, March 13, 2018; 2018 FC 290.

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Note 48

See Buterwa, Bongo Tresor v. M.C.I. (F.C., no. IMM-902-11), Mosley, October 19, 2011; 2011 FC 1181 and Rajadurai, Kalaichelvan v. M.C.I. (F.C., no. IMM-5030-12), Strickland, May 22, 2013; 2013 FC 532. In Ravichandran, Karthik Mario v. M.C.I. (F.C. no. IMM-313-17), Elliott, August 2, 2018; 2018 FC 811, in the context of an application in the Convention refugee abroad class, the Court found the Visa Officer erred by not considering the compelling reasons exception despite not making an explicit finding of past persecution or a change in circumstances. By accepting the truth of the applicants’ allegations and then discussing the effect of the passage of time on the applicants’ future fear, the condition precedent for considering the compelling reasons exception was implicitly met.

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Note 49

Alfaka Alharazim, Suleyman v. M.C.I. (F.C., no. IMM-1828-09), Crampton, October 22, 2010; 2010 FC 1044.  See also Brovina, Qefsere v. M.C.I. (F.C., no. IMM-2427-03), Layden-Stevenson, April 29, 2004; 2004 FC 635, where the Court said that there was no need to make a finding of past persecution because the RPD properly made a forward-looking analysis and concluded that the claimant would not suffer future persecution. The Court noted that it was implicit in the RPD reasons that the panel had found that the claimant had not experienced past persecution. Brovina was distinguished in Buterwa, where the Court stated that Brovina does not stand for the proposition that the Board does not have to consider whether the compelling reasons exception should be applied in every case in which it does not make an express finding of past persecution. In Buterwa, there was nothing in the RPD reasons to support a finding that the claimant had not experienced past persecution (as an 8 year-old he had witnessed the brutalization and rape of his mother and later had been brutalized and raped in a prison camp). The Court concluded that “[ t]he member side-stepped the question of past persecution and proceeded directly to review present conditions in the DRC. This did not, in my view, absolve the Board from its statutory obligation to consider whether the applicant had established compelling reasons why he should not be required to go back there. That obligation was simply ignored .” See also Sabaratnam, Manivannan v. M.C.I. (F.C., no. IMM-8703-11), Rennie, July 4, 2012, 2012 FC 844; Kostrzewa, Grzegorz v. M.C.I. (F.C., no. IMM-4563-11), Crampton, December 7, 2012; 2012 FC 1449, where the Court noted that there is no obligation on the Board to consider s. 108(4) unless (i) it has specifically found that the applicant has suffered past persecution; or (ii) there is prima facie evidence of past persecution that is so exceptional in its severity that it rises to the level of being “appalling” or “atrocious”; and Rajadurai, Kalaichelvan v. M.C.I. (F.C., no. IMM-5030-12), Strickland, May 22, 2013; 2013 FC 532.

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Note 50

Gomez Dominguez v Canada (Citizenship and Immigration), 2020 FC 1098, para 42.

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Note 51

Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.) at 748.

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Note 52

This caution was repeated in subsequent decisions of the Federal Court, e.g., Cortez, supra, note 34, at 2 (“in unusual circumstances”); Yusuf, supra, note 8, at 1-2 (“that very rare class of persons to whom this exceptional provision applies”). The following cases are examples of fact situations that have come before the Board over the years. In Arguello-Garcia, Jacobo Ignacio v. M.E.I. (F.C.T.D., no. 92-A-7335), McKeown, June 23, 1993 (amended reasons issued November 10, 1993). Reported: Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.), the claimant had suffered serious physical and sexual abuse while in detention for 45 days, and his relatives had been killed. The CRDD decision rejecting his claim was overturned. In Lawani, Mathew v. M.C.I. (F.C.T.D., no. IMM-1963-99), Heneghan, June 26, 2000, the Court held that the CRDD erred when, after accepting the claimant's evidence as credible, it found that there was insufficient evidence that his treatment was sufficiently appalling and atrocious. The claimant was brutally and severely ill-treated by government agents while in detention, including being hung upside down for long periods of time, being burnt with hot irons and cigarette fire, being whipped on the back and being made to expose his genitalia to the guards who inserted broom sticks and needles into his penis. In Gorria, Pablo Mauro v. M.C.I. (F.C., no. IMM-3003-06), Beaudry, March 16, 2007; 2007 FC 284, the Court stated: “Sexual assault and physical assault such as that to which the applicant was subjected are not to be measured on a sliding scale of atrocity when the immutable factor giving rise to such victimization and human degradation, forms one of the very core characteristics enunciated and protected under Article 5 of the Declaration of Human Rights. … Sexual assault is appalling and atrocious particularly in this instance where it is used as a tool by the police against the applicant's sexual orientation. Similarly, physical assault and the form of prior persecution inflicted on the applicant were such that it was patently unreasonable for the Board to ask the applicant to return to not only his country, Argentina, but to his home city, Buenos Aires, where the events took place.” On the other hand, in Siddique, Ashadur Rahman v. M.C.I. (F.C.T.D., no. IMM-4838-93), Pinard, July 18, 1994, the Court upheld the CRDD's finding that the torture the claimant had endured during his 15-day detention in Bangladesh in the early 1980s, albeit abhorrent, did not constitute atrocious persecution. In E.T. v. S.S.C. (F.C.T.D., no. IMM-3380-94), Gibson, June 1, 1995; [1995] F.C.J. No. 857, the Court upheld the CRDD's finding that the claimant's detention, torture, beatings and sexual assaults were not “sufficiently serious”, “atrocious” or “appalling” to warrant the application of section 2(3). See also similar findings in R.E.D.G. v. M.C.I. (F.C.T.D., no. IMM-2523-95), McKeown, May 10, 1996; [1996] F.C.J. No. 631, where the claimant had been abducted, beaten and raped; and Nallbani, Ilir, v. M.C.I. (F.C.T.D., no. IMM-5935-98), MacKay, June 25, 1999, where the claimant had been detained on five occasions, beaten, tortured, deprived of food and drink, and his life threatened. In Gicu, Andrei Marian v. M.C.I. (F.C.T.D., no. IMM-2140-98), Tremblay-Lamer, March 5, 1999, the Court pointed out that the events reported by the claimant (internment in a psychiatric hospital for a few months, two periods of imprisonment and beatings during his stays in prison) did not meet the test required by the case law in terms of the level of atrocity. In Nwaozor, Justin Sunday v. M.C.I. (F.C.T.D., no. IMM-4501-00), Tremblay-Lamer, May 23, 2001; 2001 FCT 517, the claimant's father was killed, though not in the claimant's presence, and his brother shot by unknown persons; the claimant and other family members had been beaten and harassed by the Nigerian army on three occasions over a 6-month period. The Court upheld the CRDD's finding that this did not meet the high standard of “atrocious and appalling”.

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Note 53

Hassan, Nimo Ali v. M.E.I. (F.C.T.D., no. A-653-92), Rothstein, May 4, 1994 at 11.

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Note 54

Shahid v. Canada (Minister of Citizenship and Immigration) (1995), 28 Imm. L.R. (2d) 130 (F.C.T.D.) at 138; Hitimana, Gustave v. M.C.I. (F.C.T.D., no. IMM-5804-01), Pinard, February 21, 2003; 2003 FCT 189; Isacko, Ali v. M.C.I. (F.C., no. IMM-9091-03), Pinard, June 28, 2004; 2004 FC 890.

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Note 55

Suleiman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 26 (F.C.).

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Note 56

Kotorri, Rubin v. M.C.I. (F.C., no. IMM-1316-05), Beaudry, September 1, 2005; 2005 FC 1195 . As such the Board has no specific expertise in this task.

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Note 57

Shahid v. Canada (Minister of Citizenship and Immigration) (1995), 28 Imm. L.R. (2d) 130 (F.C.T.D.) at 138. This approach was cited with approval in Adjibi, Marcelle v. M.C.I. (F.C.T.D., no. IMM-2580-01), Dawson, May 8, 2002; 2002 FCT 525 and, in relation to IRPA, in Isacko, Ali v. M.C.I. (F.C., no. IMM-9091-03), Pinard, June 28, 2004; 2004 FC 890. In Shahid, the Court (at 136) also set out a summary of the state of the case law based on Arguello-Garcia , however some of those propositions, especially the second one (relating to ongoing subjective fear), are in doubt, as shown by the discussion earlier in the text of this chapter.

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Note 58

Moya, Silvia Myrian v. M.C.I. (F.C., No. IMM-2227-15), Kane, March 14, 2016; 2016 FC 315.

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Note 59

Suleiman, Juma Khamis v. M.C.I. (F.C., no. IMM-1439-03), Martineau, August 12, 2004; 2004 FC 1125. Reported:  Suleiman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 26 (F.C.). This decision was followed in Kotorri, Rubin v. M.C.I. (F.C., no. IMM-1316-05), Beaudry, September 1, 2005; 2005 FC 1195.

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Note 60

Shpati, Zef v. M.C.I. (F.C., no. IMM-1801-06), Snider, March 1, 2007; 2007 FC 237.

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Note 61

Ismail v. Canada (Minister of Citizenship and Immigration), 2016 FC 650, para 15.

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Note 62

Arguello-Garcia, Jacobo Ignacio v. M.E.I. (F.C.T.D., no. 92-A-7335), McKeown, June 23, 1993 (amended reasons issued November 10, 1993). Reported:  Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.), at 288-289 : “The Concise Oxford Dictionary of Current English, Clarendon Press, Oxford, 1990, contains the following definitions: “atrocious”: 1 very bad or unpleasant … 2 extremely savage or wicked (atrocious cruelty).  “Atrocity”:  1 an extremely wicked or cruel act, esp. one involving physical violence or injury … “appalling”: shocking, unpleasant; bad.”

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Note 63

Kulla, Hasan v. M.C.I. (F.C.T.D., no. IMM-4707-99), MacKay, August 24, 2000, Justice MacKay commented:

In this case, while I am persuaded that the panel’s conclusion is not adequately explained, having found the claimant’s past experience to be ‘cruel and harsh’ but not ‘atrocious’ and ‘appalling’, ultimately, in my opinion the panel did not address the issue that was raised.

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Note 64

Dini, Majlinda v. M.C.I. (F.C.T.D., no. IMM-3562-98), Reed, June 24, 1999.

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Note 65

In Dini, Majlinda v. M.C.I. (F.C.T.D., no. IMM-2596-00), Gibson, March 22, 2001; 2001 FCT 217, the Court certified the following question:

In relation to a determination under s. 2(3) of the Immigration Act, does a finding of “compelling reasons” require a finding of “appalling” or “atrocious” past persecution?

The appeal in this case was dismissed by the Court of Appeal on May 21, 2002 because the appeal record was not filed on time.

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Note 66

Elemah, Paul Omorogbe v. M.C.I. (F.C.T.D., no. IMM-2238-00), Rouleau, July 10, 2001; 2001 FCT 779.

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Note 67

Adjibi, Marcelle v. M.C.I. (F.C.T.D., no. IMM-2580-01), Dawson, May 8, 2002; 2002 FCT 525.

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Note 68

Suleiman, Juma Khamis v. M.C.I. (F.C., no. IMM-1439-03), Martineau, August 12, 2004; 2004 FC 1125. Reported:  Suleiman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 26 (F.C.).

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Note 69

Mwaura, Anne v. M.C.I. (F.C., no. IMM-7462-14), Brown, July 16, 2015; 2015 FC 874.

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Note 70

Arguello-Garcia, Jacobo Ignacio v. M.E.I. (F.C.T.D., no. 92-A-7335), McKeown, June 23, 1993 (amended reasons issued November 10, 1993). Reported: Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.) at 289.  See also Adaros-Serrano, Maria Macarena v. M.E.I. (F.C.T.D., no. 93-A-124), McKeown, September 31, 1993. Reported: Adaros-Serrano v. Canada (Minister of Employment and Immigration) (1993), 22 Imm. L.R. (2d) 31 (F.C.T.D.), at 38, where the Court directed the CRDD to consider (at the rehearing of the claim) the fact that the claimant suffered from a post-traumatic stress disorder.

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Note 71

Ruiz Triana v. Canada (Minister of Citizenship and Immigration), 2019 FC 1431, para 12.

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Note 72

In Kazi, Feroz Adeel v. M.C.I. (F.C.T.D., no. IMM-850-97), Pinard, August 15, 1997, the Court upheld a CRDD decision where the claimant did not provide evidence that he suffered continuing psychological after-effects of the previous persecution.

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Note 73

Jiminez, Wilfredo v. M.C.I. (F.C.T.D., no. IMM-1718-98), Rouleau, January 25, 1999. Relying on the evidence presented, the CRDD had concluded that the claimant’s psychological state at the time of the hearing was premised on the severe brain injury he had suffered in Canada and possibly on contributing factors such as alcohol and drugs, and that, therefore, “there was insufficient evidence upon which to base a finding that the [claimant’s] experience of persecution in El Salvador was so exceptional that it causes ongoing suffering of the order experienced by the applicant in Arguello-Garcia”. The Court found that the CRDD had erred in its approach and remitted the case back for a determination of whether or not the claimant’s experiences in El Salvador alone met the exceptional circumstances envisioned by section 2(3) of the Immigration Act.

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Note 74

Hinson, Jane Magnanang v. M.C.I. (F.C.T.D., no. IMM-5034-94), Richard, July 18, 1996, at 5-6.

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Note 75

Hitimana, Gustave v. M.C.I. (F.C.T.D., no. IMM-5804-01), Pinard, February 21, 2003; 2003 FCT 189. In Gicu, Andrei Marian v. M.C.I. (F.C.T.D., no. IMM-2140-98), Tremblay-Lamer, March 5, 1999, the Court noted that, given the claimant’s adaptability and resourcefulness, it was difficult to conclude he had suffered from a psychological trauma so severe that he continued to be affected by it nearly ten years after it had occurred. See Isacko, Ali v. M.C.I. (F.C., no. IMM-9091-03), Pinard, June 28, 2004; 2004 FC 890, where the Court held that the Board did not err in its conclusion that the claimant had not proven that he suffered permanent psychological consequences of the level required for section 108(4) of IRPA.

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Note 76

Igbalajobi, Buki v. M.C.I. (F.C.T.D., no. IMM-2230-00), McKeown, April 18, 2001; 2001 FCT 348. In Hinson, Jane Magnanang v. M.C.I. (F.C.T.D., no. IMM-5034-94), Richard, July 18, 1996, the Court held that it was improper to draw an adverse inference from the fact that the claimant delayed in obtaining a medical report, especially when the report in question diagnosed post-traumatic stress syndrome; nor does a delay in seeking psychological treatment in such a case mean that there was no adverse psychological effect.

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Note 77

Arguello-Garcia, Jacobo Ignacio v. M.E.I. (F.C.T.D., no. 92-A-7335), McKeown, June 23, 1993 (amended reasons issued November 10, 1993). Reported: Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.).

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Note 78

In Velasquez, Ana Getrudiz v. M.E.I. (F.C.T.D., no. IMM-990-93), Gibson, March 31, 1994, the Court stated, in obiter, that a finding of “compelling reasons” may be based on the persecution inflicted on a family member (spouse). In Bhardwaj, Shanti Parkash v. M.C.I. (F.C.T.D., no. IMM-240-98), Campbell, July 27, 1998 reported: Bhardwaj v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 192 (F.C.T.D.), the CRDD applied section 2(3) of the Immigration Act to the eldest daughter of a family of claimants because she was profoundly affected by witnessing the shooting of her mother, but denied the other claims, including the mother’s. The Court found that the CRDD disregarded psychiatric evidence regarding the effect of the incident on the mother.

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Note 79

Kulla, Saimir v. M.C.I. (F.C., no. IMM-6837-03), von Finckenstein, August 24, 2004; 2004 FC 1170.

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Note 80

Villegas Echeverri, Clara Ines v. M.C.I. (F.C., no. IMM-4046-10), Crampton, March 30, 2011; 2011 FC 390.

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Note 81

Hitimana, Gustave v. M.C.I. (F.C.T.D., no. IMM-5804-01), Pinard, February 21, 2003; 2003 FCT 189; Suleiman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 26 (F.C.).

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Note 82

In Aragon, Luis Roberto v. M.E.I. (F.C.T.D., no. IMM-4632-93), Nadon, August 12, 1994, the Court held that the CRDD had not properly considered the circumstances surrounding the claimant’s return to El Salvador (namely, to see his mother). The torture he experienced had also occurred during an earlier visit, but this too was held not to be a bar to invoking section 2(3) of the Immigration Act.  But see Ahmed, Jawad v. M.C.I. (F.C., no. IMM-6673-03), Mosley, August 5, 2004; 2004 FC 1076, where the Court upheld the Board’s finding that compelling reason did not exist, noting that the claimant’s voluntary return to his country was indicative of a lack of subjective fear. See also the discussion on reavailment in Chapter 5.

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Note 83

Adjibi, Marcelle v. M.C.I. (F.C.T.D., no. IMM-2580-01), Dawson, May 8, 2002; 2002 FCT 525. See also M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Décary, Létourneau, Nadon, March 5, 2008; 2008 FCA 84, which is discussed in Chapter XX, section XX. Multiple Nationalities.

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Note 84

Adjibi, supra, Note 33., Marcelle v. M.C.I. (F.C.T.D., no. IMM-2580-01), Dawson, May 8, 2002; 2002 FCT 525.

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Note 85

Shahid v. Canada (Minister of Citizenship and Immigration) (1995), 28 Imm. L.R. (2d) 130 (F.C.T.D.).

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Note 86

Ravichandran, Karthik Mario v. M.C.I. (F.C. no. IMM-313-17), Elliott, August 2, 2018; 2018 FC 811 at 71.

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Note 87

Igbalajobi, Buki v. M.C.I. (F.C.T.D., no. IMM-2230-00), McKeown, April 18, 2001; 2001 FCT 348.

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Note 88

Biakona, Leonie Bibomba v. M.C.I. (F.C.T.D., no. IMM-1706-98), Teitelbaum, March 23, 1999. See also Quintero Guzman, Jean Pierre Hernan v. M.C.I. (F.C., no. IMM-2458-08), Kelen, December 1, 2008; 2008 FC 1329, where the RPD decision was overturned for failing to provide an explanation of why the abhorrent attack was insufficient to trigger the application of s. 108(4). See also Suleiman, supra, note 49. v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 26 (F.C.). In Kulla, Saimir v. M.C.I. (F.C., no. IMM-6837-03), von Finckenstein, August 24, 2004; 2004 FC 1170, supra, note 79 the Court upheld the Board’s finding that the incidents were merely “abhorrent” but not sufficiently atrocious or appalling to trigger the “compelling reasons” exception. See also, to the same effect, Oprysk, Vitaliy v. M.C.I. (F.C., no. IMM-5441-06), Mandamin, March 7, 2008; 2008 FC 326.

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