Chapter 7 - Change of Circumstances, Compelling Reasons and Sur Place Claims

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Table of Contents

  1. 7.1. Change of Circumstances
    1. 7.1.1. Standard of Proof and Criteria
    2. 7.1.2. Reasons and Assessment of Evidence
    3. 7.1.3. Post-Hearing Evidence
  2. 7.2. Compelling Reasons
    1. 7.2.1. Applicability
    2. 7.2.2. Duty to Consider the "Compelling Reasons" Exception
    3. 7.2.3. Meaning of "Compelling Reasons"
    4. 7.2.4. Adequacy of Reasons for Decision
    5. 7.2.5. Level or Severity of Harm
    6. 7.2.6. Psychological After-Effects
    7. 7.2.7. Persecution of Others and Other Factors
  3. 7.3. Sur Place Claims
    1. 7.3.1. Claimant's Activities Abroad
  4. 7.4. Table of Cases

7. Change of Circumstances, Compelling Reasons and Sur Place Claims

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 changes can relate to the situation in the country of reference or the personal circumstances of the claimant.

Section 108(1) of the Act 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.

(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.

The wording of section 108 reflects the fact that the section provides the framework for cessation of status (i.e., s. 108(2) provides that the Minister may apply for cessation of status for any of the reasons in subsection (1)). However, it is clear that the determination of the claim by the 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 by a claim to refugee status is not whether the claimant had reasons to fear persecution in the past, but rather whether he or she now, at the time the claim is being decided, has good grounds to fear persecution in the future.

On the issue of whether the Board is required to notify the claimant that change of circumstances is an issue in the claim, there appears to be some disagreement in the case law. In Alfarsy,Note 1 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 2 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 3 the Court holds 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.

While the change in circumstances may negate the well foundedness of a claim, it may also create the conditions that would allow a claimant to establish a sur place claim (see section 7.3.).

7.1.1. Standard of Proof and Criteria

As in all other refugee claims heard by the Refugee Protection Division, the test of well-foundedness found in AdjeiNote 4 applies to claims involving an assessment of changed or changing country conditions,Note 5 and the onus remains on the claimant to establish his or her claim (the onus shifts where the Minister applies for cessation of status).

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 6 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 7 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 8 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 9 the Court of Appeal confirmed that the question of changed country conditions is one of fact.

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 10 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 11

In the context of a change in government, the Court in SoeFootnote 12 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 because, amongst other things, 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.”

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.Footnote 13 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 circumstancesFootnote 14.

7.1.2. Reasons and Assessment of Evidence

The Court of Appeal pointed out in AhmedFootnote 15 that it is not sufficient for the Board to simply state that a change has taken place (e.g. the declarations of a new government), “without more explanation to establish that the appropriate legal principles were applied.” 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.Footnote 16

In the decision of Mohamed,Footnote 17 Justice Denault of the Trial Division set out the following helpful checklist or 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.

Although there is no requirement to cite every piece of evidence before it, the Refugee Protection Division’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.Footnote 18 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.Footnote 19

7.1.3. Post-Hearing Evidence

There is no obligation on the Refugee Protection Division to consider post-hearing evidence relating to changes in country conditions unless that evidence has been submitted by the claimant,Footnote 20 and accepted by the panel,Footnote 21 before the panel renders a final decision on the claim.

The Refugee Protection Division 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.Footnote 22

7.2. Compelling Reasons

7.2.1. Applicability

In the ObstojFootnote 23 decision, the 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].Footnote 24

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

In Isacko,Footnote 25 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. (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.)

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.Footnote 26 In Nadjat,Footnote 27 the Court rejected the notion that section 108(4) applies only if refugee protection has actually been conferred.

In order for the “compelling reasons” exception to apply the claimant does not need to show a subsisting well-founded fear of persecution or an ongoing subjective fear of persecution.Footnote 28 However, the claimant must first establish that he or she, at some point, would have met the definition of Convention refugee or person in need of protection.Footnote 29

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.Footnote 30 In Cortez,Footnote 31 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 his or her country of nationality. The reasons for one’s fear of persecution have to have ceased thereafter for the compelling reasons exception to be triggered.Footnote 32

This interpretation was adopted by the Court of Appeal in Cihal,Footnote 33 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 Immigration and Refugee Protection Act.

In Corrales,Footnote 34 the Trial Division held that since the CRDD never made a determination 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.Footnote 35 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.Footnote 36

In Guzman,Footnote 37 the CRDD found, primarily based on the long delay in making their claims, that the claimants lacked a subjective fear. The Trial Division held that the fact that the CRDD then went on to consider changed country conditions, as an additional reason for which to reject the claim, did not eliminate or undermine its earlier finding that the claimants had no subjective fear of persecution. Justice Rothstein reasoned that:

paragraph 2(2)(e) and subsection 2(3) [of the Immigration Act, i.e., the "compelling reasons" exception] only come into play if there is a finding that the [claimants], at least at one time, were Convention refugees. I think this includes a finding that at one time they would have met the definition of Convention refugee. In the present case, there is no such finding.

The “compelling reasons” exception does not arise where a claimant’s factual evidence is not believed.Footnote 38

A determination that the claimant had an internal flight alternative (IFA) when he left his or her country would preclude the application of the “compelling reasons” exception, since the person could not have been determined to be a Convention refugee.Footnote 39 In Moore,Footnote 40 the Trial Division held that the terms of reference for applying section 2(3) of the 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.

7.2.2. Duty to Consider the "Compelling Reasons" Exception

In Yamba,Footnote 41 the Court of Appeal clarified the law in this area when it stated:

In summary, 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.Footnote 42

The same principle would hold true with regard to section 108(4) of the Immigration and Refugee Protection Act.

It follows, therefore, that where the Board finds that the claimant has suffered no past persecution (explicitly or implicitly),Footnote 43 it is under no obligation to consider the compelling reasons exception.

In Alfaka Alharazim,Footnote 44 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.

7.2.3. Meaning of "Compelling Reasons"

In Obstoj,Footnote 45 Justice Hugessen of the Court of Appeal held that section 2(3) of the Immigration Act - now section 108(4) of the Immigration and Refugee Protection Act - 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" in this context harks back to 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."Footnote 46

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.Footnote 47

The issue as to whether "compelling reasons" exist in a given case is a question of fact.Footnote 48 Each case must be assessed and decided on its own merits, based on the totality of the evidence.Footnote 49 However, the delineation of the concept of "compelling reasons" is a question of law.Footnote 50

In Shahid,Footnote 51 the Federal Court set out the 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.

7.2.4. Adequacy of Reasons for Decision

In Adjibi,Footnote 52 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 was found to have been raped repeatedly and was diagnosed with Post-Traumatic Stress Disorder.) This requires 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.Footnote 53

The Refugee Protection Division 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.Footnote 54 Thus, if the Board finds the treatment received by the claimant to be "revolting" or "vile and reprehensible", as it did in Biakona,Footnote 55 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.

7.2.5.Level or Severity of Harm

In the MoyaFootnote 56 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,Footnote 57 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 “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 (Adjibi). 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, Kotorri. In Shpati,Footnote 58 the Court stated, in obiter, that there is no jurisprudence that raises a doubt about the correctness of the “appalling and atrocious” test.

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”.Footnote 59

In Hasan Kulla,Footnote 60 however, the Court held that the issue is not whether the claimant’s past experience could be characterized as “atrocious” and “appalling”, descriptions found in other jurisprudence, but rather, as Justice Reed stated in Dini:Footnote 61 “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.”

In a 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.Footnote 62 Subsequently, in Elemah,Footnote 63 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,Footnote 64 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,Footnote 65 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 After-Effects

Evidence – usually in the form of a medical report or psychological assessment – of present psychological and emotional suffering can be used to demonstrate that the claimant continues to suffer the effects of past persecution (or s.97 harms). Evidence of continuing psychological after-effects, or its absence,Footnote 66 is relevant to a determination of whether there are compelling reasons, however, the existence of such evidence is not a separate test that has to be met.

In Mwaura,Footnote 67 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.

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 effect of past persecution.Footnote 68 Since such evidence is supportive of the existence of compelling reasons, it should not be disregarded.

In Jiminez,Footnote 69 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. While evidence of continuing psychological after-effects is relevant to a determination of the issue, it is not a separate test that has to be met.

In Hinson,Footnote 70  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,Footnote 71 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 Refugee Protection Division 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 be a relevant factor.Footnote 72

7.2.7. Persecution of Others and Other Factors

The Court has also held that the Board may take into account the experiences of family members in its assessment of “compelling reasons.”Footnote 73 According to Velasquez, persecution of a family member can of itself be sufficient to constitute “compelling reasons”.Footnote 74 However, the obiter comment in Velasquez was not followed in Saimir Kulla,Footnote 75 where the Federal Court held that the claimant must suffer the mistreatment directly. In the most recent case of Villegas Echeverri,Footnote 76 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 s.108(4) of IRPA) extends to persecution of family members of the refugee claimant. As the Court explains 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.

The generalized character of past persecution in a particular country should not serve as a bar to the application of the "compelling reasons" exception.Footnote 77 A brief return to the country of alleged persecution does not necessarily preclude the application of the "compelling reasons" exception.Footnote 78

In Adjibi,Footnote 79 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.

7.3. Sur Place Claims

A claimant may be a refugee as a consequence of events which have occurred in his or her country of origin since departure,Footnote 80 or because of a significant intensification of pre-existing factors since departure from his or her country.Footnote 81

In a sur place claim based on the insecurity in the country of reference (in this caseFootnote 82 it was the major upheaval that occurred in Tunisia after the claimants left their country), the Court agreed with the RPD that there was no connection between that situation and the claim for refugee protection and that the claimants were affected to the same degree as all the citizens of their country. Claims may also be advanced based, in whole or part, on the activities of the claimant since leaving his or her country.Footnote 83

Some cases have held that the Board is not required to deal with the issue of whether the claimant is a refugee sur place where it determines that the basis of the claim is not credible.Footnote 84 However, other cases hold that the Board should consider the sur place claim even when it does not believe the account of the experiences in the home country.Footnote 85 The failure to assess the sur place claim can be a reviewable error.Footnote 86 It is an error to totally discount the evidence relating to the sur place claim without explaining why.Footnote 87

In Alfaro,Footnote 88 the Court overturned the decision of the RPD because the RPD framed its analysis of the claim entirely on the breach of the Cuban exit laws and failed to consider that the catalyst for the claim for protection was the letter from the Cuban government which the claimant received before the expiration of his exit visa. The claim required analysis both as a sur place claim and as a breach of exit laws. In a sur place claim, while it is correct to inquire into the potential request for state protection, it is incorrect to require the claimant to have already pursued state protection.Footnote 89

The fact that the claimant’s departure from his or her homeland may have been perfectly legal is not relevant when considering a sur place possibility. What is required is an assessment of the situation in the country of origin after the claimant left it.Footnote 90

In Tang,Footnote 91 the Trial Division pointed out that, in the case of a sur place claim, the relevant date to assess a delay in making a refugee claim is the date as of which the claimant became aware that he or she would allegedly face persecution on return to the country of nationality, and not the date on which the claimant arrived in Canada.

A claimant may become a refugee sur place by virtue of the actions of Canadian authorities in that person’s home country.Footnote 92

7.3.1. Claimant's Activities Abroad

According to paragraph 96 of the UNHCR Handbook, the key issues in cases based on the claimant's activities since leaving his or her home country are "whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities." Even though a claimant's actions subsequent to departure may have come to the attention of the authorities there, it may nevertheless be that, in the circumstances, those actions do not give rise to a well-founded fear of persecution.Footnote 93

In Zhu,Footnote 94 the Trial Division held that once the evidence established that the claimant's information was given to counsel for the accused, and filed in evidence at a public trial in Canada and in publicly accessible court records, it was patently unreasonable for the CRDD to suggest that further evidence was required to establish that the information actually came to the attention of a potential agent of persecution in the claimant's country of origin. In the Court's view, that is too high a requirement to establish more than a mere possibility of persecution.

In Win,Footnote 95 the Court held that the standard to be used in assessing evidence relating to a sur place claim is likelihood, or balance of probabilities, that is, whether the claimant's activities were likely to come to the attention of the authorities of his or her country.

Where claims are based on the claimant's activities abroad, some decisions have focused on the issue of the bona fides or motivation (or good faith) of the claimant and have found that the claimant did not have a subjective fear of persecution.Footnote 96

However, other cases, which now appear to reflect the currently accepted approach, have held that there is no “good faith” requirement in making a sur place claim. A recent case explaining this approach is Ye.Footnote 97 What matters is that the Board cannot reject a sur place claim solely on the basis of a lack of credibility or improper motive without examining the potential risk if returned to the country of origin.Footnote 98 As part of this assessment, the Board is entitled to assess the genuineness of the claimant’s beliefs.Footnote 99 In that regard, it is permissible for the Board to assess a claimant’s genuineness, and therefore sur place claim, in light of credibility concerns relating to the original authenticity of a claim.Footnote 100

The genesis of this approach goes back to much earlier case law. In Ngongo,Footnote 101 the Trial Division cited with approval the following passage from Professor Hathaway’s The Law of Refugee Status:

It does not follow, however, that all persons whose activities abroad are not genuinely demonstrative of oppositional political opinion are outside the refugee definition. Even when it is evident that the voluntary statement or action was fraudulent in that it was prompted primarily by an intention to secure asylum, the consequential imputation to the claimant of a negative political opinion by authorities in her home state may nonetheless bring her within the scope of the Convention definition. Since refugee law is fundamentally concerned with the provision of protection against unconscionable state action, an assessment should be made of any potential harm to be faced upon return because of the fact of the non-genuine political activity engaged in while abroad.Footnote 102

In Asfaw,Footnote 103 the Trial Division held that while it is relevant to examine the motives underlying a claimant's participation in demonstration against his government in Canada in order to determine whether the claimant has a subjective fear, it would be an error for the CRDD to stop the analysis there as it is also necessary to examine whether or not the fear has an objective basis.

In Ghasemian,Footnote 104 the Federal Court held that, once the Board accepted that the claimant had converted to Christianity while in Canada and now risked severe punishment in Iran as an apostate, it had to consider whether the claimant would be viewed as an apostate regardless of the motive for her conversion. While it was open to the Board to reject her sur place claim on the basis of a lack of subjective fear, the Board misconstrued her evidence regarding her alleged lack of fear of reprisals and applied the wrong test by rejecting her claim on the basis that it was not made in good faith, i.e., she did not convert for a purely religious motive. The Court followed the reasoning of the English Court of Appeal in Danian,Footnote 105 that opportunistic claimants are still protected under the Convention if they can establish a genuine and well-founded fear of persecution for a Convention ground.

The Court adopted a similar approach in two subsequent decisions involving Iranian claimants who had converted from the Muslim faith, holding that it is necessary to consider the credible evidence of the claimant's activities while in Canada, independently from their motive. Even if the motives are not genuine, the consequential imputation of religious or political beliefs to the claimant by the authorities of their country, may nonetheless be sufficient to bring the claimant within the scope of the Convention refugee definition.Footnote 106 However, the Board may still be able to find, in appropriate cases, that the claimant's activities were not likely to come to the attention of anyone in their country,Footnote 107 or that the claimant would not likely engage in such activities on return to their country.Footnote 108

It is an error for the Board to base its analysis of the sur place claim (based on religious persecution) on the basis of an expectation that the claimant should be discreet about his religious beliefs upon his return to his country.Footnote 109

In Kammoun,Footnote 110 the claimant had voluntarily approached representatives from his country in Canada. The Court held that the proper inquiry was whether the claimant's denouncement, albeit voluntary, of the Tunisian authorities in Canada could cause a negative reaction on the part of the authorities and, as a result, cause a risk should the claimant return.

With respect to exit laws, in Zandi,Footnote 111 the Court followed ValentinFootnote 112 in holding that a defector cannot gain legal status in Canada under IRPA by creating a "need for protection" under section 97 by freely, of their own accord and with no reason, making themselves liable to punishment by violating a law of general application in their home country about complying with exit laws.

Evidence of political activities in Canada should be considered by the panel whether or not the claimant specifically raises a sur place claim.Footnote 113 However, where the decision is under reserve, the onus is on the claimant to request a reconvening of the hearing (before a final decision on the claim has been rendered) in order to consider the impact that any newly alleged sur place basis to the claim might have.Footnote 114

Table of Cases

  1. A. B. v. M.C.I. (F.C., no. IMM-3497-08), Gibson, March 27, 2009; 2009 FC 325. Reported: A.B. v. Canada (Minister of Citizenship and Immigration), [2010] 2 F.C.R. 75 (F.C.)
  2. Abarajithan, Paramsothy v. M.E.I. (F.C.A., no. A-805-90), Stone, MacGuigan, Linden, January 28, 1992
  3. Abdul, Gamel v. M.C.I. (F.C.T.D., no. IMM-1796-02), Snider, February 28, 2003; 2003 FCT 260
  4. 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.)
  5. Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.)
  6. Adjibi, Marcelle v. M.C.I. (F.C.T.D., no. IMM-2580-01), Dawson, May 8, 2002; 2002 FCT 525
  7. … 7-15, 7-17, 7-20
  8. Agyakwah, Elizabeth Lorna v. M.E.I. (F.C.T.D., no. A-7-93), McKeown, December 10, 1993
  9. Ahmed, Ali v. M.E.I. (F.C.A., no. A-89-92), Marceau, Desjardins, Décary, July 14, 1993.
  10. Ahmed, Jawad v. M.C.I. (F.C., no. IMM-6673-03), Mosley, August 5, 2004; 2004 FC 1076
  11. Alam, Mohammed Mahfuz v. M.C.I. (F.C.T.D., no. IMM-4883-97), McGillis, October 7, 1998
  12. Alfaka Alharazim, Suleyman v. M.C.I. (F.C., no. IMM-1828-09), Crampton, October 22, 2010; 2010 FC 1044
  13. Alfaro, Victor Labrador v. M.C.I. (F.C., no. IMM-7390-10), Rennie, July 22, 2011; 2011 FC 912
  14. Alfarsy, Asma Haidar Jabir v. M.C.I. (F.C., no. IMM-3395-02), Russell, December 12, 2003; 2003 FC 1461
  15. André, Marie-Kettelie v. M.E.I. (F.C.T.D., no. A-1444-92), Dubé, October 24, 1994
  16. Anthonipillai, Anton Jekathas v. M.C.I. (F.C., no. IMM-1273-13), Simpson, June 25, 2014; 2014 FC 611
  17. Antonio, Neto Xavier v. M.C.I. (F.C.T.D., no. A-472-92), Noël, January 27, 1995
  18. Aragon, Luis Roberto v. M.E.I. (F.C.T.D., no. IMM-4632-93), Nadon, August 12, 1994
  19. 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.)
  20. Asaolu: M.C.I. v. Asaolu, Daniel Oluwafemi (F.C.T.D., no. IMM-237-98), Campbell, July 31, 1998. Reported: Canada (Minister of Citizenship and Immigration) v. Asaolu (1998), 45 Imm. L.R. (2d) 190 (F.C.T.D.)
  21. Asfaw, Napoleon v. M.C.I. (F.C.T.D., no. IMM-5552-99), Hugessen, July 18, 2000
  22. Barry, Abdoulaye v. M.C.I. (F.C.T.D., no. IMM-573-01), Pinard, February 26, 2002; 2002 FCT 203
  23. Belozerova, Natalia v. M.C.I. (F.C.T.D., no. IMM-912-94), Simpson, May 25, 1995
  24. Ben Zaied, Ali v. M.C.I. (F.C., no. IMM-7171-11), Boivin, June 18, 2012; 2012 FC 771
  25. 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.)
  26. Biakona, Leonie Bibomba v. M.C.I. (F.C.T.D., no. IMM-1706-98), Teitelbaum, March 23, 1999
  27. Brovina, Qefsere v. M.C.I. (F.C., no. IMM-2427-03), Layden-Stevenson, April 29, 2004; 2004 FC 635
  28. Buterwa, Bongo Tresor v. M.C.I. (F.C., no. IMM-902-11), Mosley, October 19, 2011; 2011 FC 1181
  29. Cabdi, Mhad Cali v. M.C.I. (F.C., no.IMM-1365-15), Gleeson, January 8, 2016; 2016 FC 26
  30. Cai, Heng Ye v. M.C.I. (F.C.T.D., no. IMM-1088-96), Teitelbaum, May 16, 1997
  31. 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.)
  32. Chaudary, Imran Akram v. M.C.I. (F.C.T.D., no. IMM-2048-94), Reed, May 4, 1995
  33. Chaudri, Tahir Ahmad Nawaz v. M.E.I. (F.C.A., no. A-1278-84), Thurlow, Hugessen, McQuaid, June 5, 1986. Reported: Chaudri v. Canada (Minister of Employment and Immigration) (1986), 69 N.R. 114 (F.C.A.)
  34. Chen, Hanqi v. M.C.I. (F.C., no. IMM-5203-08), de Montigny, June 29, 2009; 2009 FC 677
  35. Chowdhury, Mashiul Haq v. M.E.I. (F.C.T.D., no. 92-A-6565), Noël, June 2, 1993
  36. Cihal, Pavla v. M.C.I. (F.C.A., no. A-54-97), Stone, Evans, Malone, May 4, 2000
  37. Corrales, Maria Cecilia Abarca v. M.C.I. (F.C.T.D., no. IMM-4788-96), Reed, October 3, 1997
  38. Cortez, Delmy Isabel v. S.S.C. (F.C.T.D., no. IMM-2482-93), McKeown, December 15, 1993
  39. Danian v. Secretary of State for the Home Department, [1999] E.W.J. No. 5459 online: QL
  40. Demirtas, Alev v. M.C.I. (F.C., no. IMM-1781-10), O’Keefe, May 19, 2011; 2011 FC 584
  41. Desalegn, Tiruedel v. M.C.I. (F.C. no., IMM-2400-16, Russell, November 25, 2016; 2016 FC 1311
  42. Diallo, Abdou Salam v. M.C.I. (F.C.T.D., no. A-1157-92), Noël, June 8, 1995
  43. Dini, Majlinda v. M.C.I. (F.C.T.D., no. IMM-2596-00), Gibson, March 22, 2001
  44. Dini, Majlinda v. M.C.I. (F.C.T.D., no. IMM-3562-98), Reed, June 24, 1999
  45. Doganian, Rafi Charvarch v. M.E.I. (F.C.A., no. A-807-91), Hugessen, MacGuigan, Décary, April 26, 1993
  46. Dolamore: M.C.I. v. Dolamore, Jessica Robyn (F.C.T.D., no. IMM-4580-00), Blais, May 1, 2001; 2001 FCT 421
  47. E.T. v. S.S.C. (F.C.T.D., no. IMM-3380-94), Gibson, June 1, 1995; [1995] F.C.J. No. 857
  48. Ejtehadian, Mostafa v. M.C.I. (F.C., no. IMM-2930-06), Blanchard, February 12, 2007; 2007 FC 158
  49. El Aoudie, Nour El Houda v. M.C.I. (F.C., no. IMM-7166-11), Shore, April 19, 2012; 2012 FC 450
  50. Elemah, Paul Omorogbe v. M.C.I. (F.C.T.D., no. IMM-2238-00), Rouleau, July 10, 2001
  51. Fernandopulle, Eomal v. M.C.I. (F.C.A., no. A-217-04). Sharlow, Nadon, Malone, March 8, 2005; 2005 FCA 91
  52. Ghasemian, Marjan v. M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003; 2003 FC 1266
  53. Ghazizadeh, Reza v. M.E.I. (F.C.A., no. A-393-90), Hugessen, MacGuigan, Décary, May 17, 1993. Reported: Ghazizadeh v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 236 (F.C.A.)
  54. Ghribi, Abdelkarim Ben v. M.C.I. (F.C., no. IMM-2580-02), Blanchard, October 14, 2003; 2003 FC 1191; Lai, Li Min v. M.C.I. (F.C., no. IMM-1849-04), Simpson, February 8, 2005; 2005 FC 179
  55. Gicu, Andrei Marian v. M.C.I. (F.C.T.D., no. IMM-2140-98), Tremblay-Lamer, March 5, 1999
  56. Gorria, Pablo Mauro v. M.C.I. (F.C., no. IMM-3003-06), Beaudry, March 16, 2007; 2007 FC 284
  57. Gurung, Subash v. M.C.I. (F.C., no. IMM-10808-12), Mosley, October 16, 2013; 2013 FC 1042
  58. Guzman, Jesus Ruby Hernandez v. M.C.I. (F.C.T.D., no. IMM-3748-97), Rothstein, October 29, 1998
  59. 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.)
  60. Habimana: M.C.I. v. Habimana, Djuma, (IMM-5616-08), Pinard, January 6, 2010, 2010 FC 16
  61. Hanfi, Aden Abdullah v. M.E.I. (F.C.T.D., no. A-610-92), Gibson, March 31, 1995
  62. Hannoon, Rami v. M.C.I. (F.C., no. IMM-3079-11), O’Keefe, April 18, 2012; 2012 FC 448
  63. Hassan, Nimo Ali v. M.E.I. (F.C.T.D., no. A-653-92), Rothstein, May 4, 1994
  64. 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.)
  65. Hernandez, Alvaro Odilio Valladares v. M.E.I. (F.C.A., no. A-210-90), Stone, Linden, McDonald, July 7, 1993
  66. Herrera, Juan Blas Perez de Corcho v. M.E.I. (F.C.T.D., no. A-615-92), Noël, October 19, 1993
  67. Hinson, Jane Magnanang v. M.C.I. (F.C.T.D., no. IMM-5034-94), Richard, July 18, 1996
  68. Hitimana, Gustave v. M.C.I. (F.C.T.D., no. IMM-5804-01), Pinard, February 21, 2003; 2003 FCT 189
  69. Huang, Xiao Fang v. M.C.I. (F.C., no. IMM-3396-11), Zinn, February 10, 2012; 2012 FC 205
  70. Igbalajobi, Buki v. M.C.I. (F.C.T.D., no. IMM-2230-00), McKeown, April 18, 2001
  71. Igbinosun, Nelson v. M.C.I. (F.C.T.D., no. IMM-7410-93), McGillis, November 17, 1994
  72. Isacko, Ali v. M.C.I. (F.C., no. IMM-9091-03), Pinard, June 28, 2004; 2004 FC 890
  73. Jairo, Marcos Amador Soto v. M.C.I. (F.C., no. IMM-3864-13), de Montigny, June 26, 2014; 2014 FC 622
  74. James C. Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991)
  75. Jiminez, Wilfredo v. M.C.I. (F.C.T.D., no. IMM-1718-98), Rouleau, January 25, 1999
  76. Kalumba, Banza v. M.C.I. (F.C., no. IMM-8673-04), Shore, May 17, 2005; 2005 FC 680
  77. Kammoun, M. Hammadi Ben Hassen v. M.C.I. (F.C., no. IMM-4096-05), Tremblay-Lamer, February 3, 2006; 2006 FC 128
  78. Kazi, Feroz Adeel v. M.C.I. (F.C.T.D., no. IMM-850-97), Pinard, August 15, 1997
  79. Kerimu, Calvin v. M.C.I. (F.C., no. IMM-9793-04), Blanchard, February 28, 2006; 2006 FC 264
  80. Kifoueti, Didier Borrone Bitemo v. M.C.I. (F.C.T.D., no. IMM-937-98), Tremblay-Lamer, February 11, 1999
  81. Kostrzewa, Grzegorz v. M.C.I. (F.C., no. IMM-4563-11), Crampton, December 7, 2012; 2012 FC 1449
  82. Kotorri, Rubin v. M.C.I. (F.C., no. IMM-1316-05), Beaudry, September 1, 2005; 2005 FC 1195
  83. Krishan, Bal v. M.C.I. (F.C. no. IMM-1113-18), McVeigh, November 29, 2018; 2018 FC 1203
  84. Kudar, Peter v. M.C.I. (F.C., no. IMM-2218-03), Layden-Stevenson, April 30, 2004; 2004 FC 648
  85. Kulla, Hasan v. M.C.I. (F.C.T.D., no. IMM-4707-99), MacKay, August 24, 2000
  86. Lawani, Mathew v. M.C.I. (F.C.T.D., no. IMM-1963-99), Haneghan, June 26, 2000
  87. Li, Mengting v. M.C.I. (F.C. no. IMM-5548-17), Gagné, August 31, 2018; 2018 FC 877
  88. Lorne, Daniella Chandya v. M.C.I. (F.C., no. IMM-3542-05), von Finckenstein, March 27, 2006; 2006 FC 384
  89. Magana, Douglas Ivan Ayala v. M.E.I. (F.C.T.D., no. A-1670-92), Rothstein, November 10, 1993. Reported: Magana v. Canada (Minister of Employment and Immigration) (1993), 22 Imm. L.R. (2d) 300 (F.C.T.D.)
  90. Maina, Ali Adji v. M.C.I. (F.C.T.D., no. IMM-1221-99), Gibson, March 14, 2000
  91. Manzila, Nicolas v. M.C.I. (F.C.T.D., no. IMM-4757-97), Hugessen, September 22, 1998
  92. Martinez, Luis Amado Contreras v. M.C.I. (F.C., no. IMM-3662-05), Noël, March 17, 2006; 2006 FC 343
  93. Mbouko: M.C.I. v. Mbouko, Augustin (F.C. No. IMM-1988-04), Lemieux, January 31, 2005; 2005 FC 126
  94. Mohajery, Javad v. M.C.I. (F.C., no. IMM-2528-06), Blanchard, February 19, 2007; 2007 FC 185
  95. Mohamed, Mohamed Yasin v. M.E.I. (F.C.T.D., no. A-1517-92), Denault, December 16, 1993
  96. Mohebbi, Hadi v. M.C.I. (F.C., no. IMM-3755-13) Harrington, February 26, 2014; 2014 FC 182
  97. Moore, Clara v. M.C.I. (F.C.T.D., no. IMM-682-00), Heneghan, October 27, 2000
  98. Moradi, Ahmad v. M.C.I. (F.C.T.D., no. IMM-2317-97), MacKay, September 23, 1998
  99. Moya, Silvia Myrian v. M.C.I. (F.C., No. IMM-2227-15), Kane, March 14, 2016; 2016 FC 315
  100. 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)
  101. Munderere: M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Décary, Létourneau, Nadon, March 5, 2008; 2008 FCA 84
  102. Munkoh, Frank v. M.E.I. (F.C.T.D., no. IMM-4056-93), Gibson, June 3, 1994
  103. Mutamba, Phydellis v. M.C.I. (F.C.T.D., no. IMM-2868-98), Pinard, April 15, 1999
  104. Mutangadura, Chipo Pauline v. M.C.I. (F.C., no. IMM-2553-06), Phelan, March 20, 2007; 2007 FC 298
  105. Mwaura, Anne v. M.C.I. (F.C., no. IMM-7462-14), Brown, July 16, 2015; 2015 FC 874
  106. Naivelt, Andrei v. M.C.I. (F.C., no. IMM-9552-03), Snider, September 17, 2004; 2004 FC 1261
  107. Najdat, Parviz v. M.C.I. (F.C., no. IMM-3995-05), Russell, March 9, 2006; 2006 FC 302
  108. Nallbani, Ilir, v. M.C.I. (F.C.T.D., no. IMM-5935-98), MacKay, June 25, 1999
  109. Nasha Ragguette, Onica Efuru v. M.C.I. (F.C., no. IMM-7214-10), Rennie, December 21, 2011; 2011 FC 1511
  110. Ngongo, Ndjadi Denis v. M.C.I. (F.C.T.D., no. IMM-6717-98), Tremblay-Lamer, October 25, 1999
  111. Nthoubanza, Arthur Jholy v. M.C.I. (F.C.T.D., no. IMM-207-98), Denault, December 17, 1998
  112. Nwaozor, Justin Sunday v. M.C.I. (F.C.T.D., no. IMM-4501-00), Tremblay-Lamer, May 23, 2001; 2001 FCT 517
  113. Obstoj: Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.)
  114. Ofori, Beatrice v. M.E.I. (F.C.T.D., no. IMM-3312-94), Gibson, March 14, 1995
  115. Oprysk, Vitaliy v. M.C.I. (F.C., no. IMM-5441-06), Mandamin, March 7, 2008; 2008 FC 326
  116. Ortiz, Ligia Ines Arias v. M.C.I. (F.C.T.D., no. IMM-4416-01), Pinard, November 13, 2002; 2002 FCT 1163
  117. Quaye, Sarah Adjoa v. M.C.I. (F.C.T.D., no. IMM-3999-00), Tremblay-Lamer, May 23, 2001; 2001 FCT 518
  118. Quintero Guzman, Jean Pierre Hernan v. M.C.I. (F.C., no. IMM-2458-08), Kelen, December 1, 2008; 2008 FC 1329
  119. 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
  120. Rabbani, Sayed Moheyudee v. M.C.I. (F.C.T.D., no. IMM-236-96), Noël, January 16, 1997
  121. Rahman, Faizur v. M.E.I. (F.C.A., no. A-1244-91), Marceau, Desjardins, Létourneau, May 14, 1993
  122. Rahman, Kbm Abdur v. M.C.I. (F.C., no. IMM-4634-06), Snider, July 3, 2007; 2007 FC 689
  123. Rahman, Sheikh Mohammed Mostafizur v. M.E.I. (F.C.A., no. A-398-92), Hugessen, Létourneau, Robertson, March 3, 1995
  124. Rajadurai, Kalaichelvan v. M.C.I. (F.C., no. IMM-5030-12), Strickland, May 22, 2013; 2013 FC 532
  125. Ravichandran, Karthik Mario v. M.C.I. (F.C. no. IMM-313-17), Elliott, August 2, 2018; 2018 FC 811
  126. Reyad Gad, Malak Lofti v. M.C.I. (F.C., no. IMM-4714-10), Harrington, March 14, 2011; 2011 FC 303
  127. Sabaratnam, Manivannan v. M.C.I. (F.C., no. IMM-8703-11), Rennie, July 4, 2012, 2012 FC 844
  128. Said, Mohamed Ahmed v. M.E.I. (F.C.T.D., no. 90-T-638), Teitelbaum, May 1, 1990
  129. Salinas: 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.)
  130. Sanaei, Izad v. M.C.I. (F.C., no. IMM-11449-12), Strickland, April 30, 2014; 2014 FC 402
  131. Sangha, Karamjit Singh v. M.C.I. (F.C.T.D., no. IMM-1555-98), Reed, September 8, 1998
  132. Sani, Navid Shahnazary v. M.C.I. and M.P.S.E.P.C. (F.C., nos. IMM-5284-07 and IMM-5285-07), Lagacé, July 30, 2008; 2008 FC 913
  133. Sarker, Sanjoy v. M.C.I. (F.C., no. IMM-6418-13), de Montigny, December 3, 20014; 2014 FC 1168
  134. Serhan: M.C.I. v. Serhan, Jaafar (F.C.T.D., no. IMM-539-00), Dawson, September 19, 2001; 2001 FCT 1029
  135. 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.)
  136. Shpati, Zef v. M.C.I. (F.C., no. IMM-1801-06), Snider, March 1, 2007; 2007 FC 237
  137. Siddique, Ashadur Rahman v. M.C.I. (F.C.T.D., no. IMM-4838-93), Pinard, July 18, 1994
  138. 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.)
  139. Soe, Than v. M.P.S.E.P. (F.C. no. IMM-2957-17), Kane, May 30, 2018; 2018 FC 557
  140. Sow, Kadiatou v. M.C.I. (F.C., no IMM-1493-11), Russell, November 16, 2011; 2011 FC 1313
  141. Stankov, Todor Georgiev v. M.C.I. (F.C., no. IMM-6712-05), Blais, August 6, 2006; 2006 FC 991
  142. Stapleton, Elizabeth Sylvia v. M.C.I. (F.C., no. IMM-1315-06), Blanchard, November 1, 2006; 2006 FC 1320
  143. Stoyanov, Gueorgui Ivanov v. M.E.I. (F.C.A., no. A-206-91), Hugessen, Mahoney, Décary, April 26, 1993
  144. Su, Hao Wen v. M.C.I. (F.C., no. IMM-7356-12), Gleason, May 17, 2013; 2013 FC 518
  145. Su, Jialu v. M.C.I. (F.C., no. IMM-4968-14), Fothergill, May 25, 2015; 2015 FC 666
  146. 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.)
  147. Tang, Xiaoming v. M.C.I. (F.C.T.D., no. IMM-3650-99), Reed, June 21, 2000
  148. Thiaw, Hamidou v. M.C.I. (F.C., no. IMM-6877-05), Blais, August 14, 2006; 2006; 2006 FC 965
  149. Umana, Cesar Emilio Campos v. M.C.I. (F.C. no. IMM-1434-02), Snider, April 2, 2003;
    2003   FCT 393
  150. Urur, Mohamed Ahmed v. M.E.I. (F.C.A., no. A-228-87), Pratte, Joyal, Walsh, January 15, 1988
  151. Vafaei, Farah Angiz v. M.E.I. (F.C.T.D., no. IMM-1276-93), Nadon, February 2, 1994
  152. Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.)
  153. Velasquez, Ana Getrudiz v. M.E.I. (F.C.T.D., no. IMM-990-93), Gibson, March 31, 1994
  154. Velez, Daniel Augusto Aristizabal v. M.C.I. (F.C., no. IMM-3964-17), Brown, March 13, 2018; 2018 FC 290
  155. Ventura, Simon Alberto v. M.E.I. (F.C.T.D., no. IMM-6061-93), Cullen, October 5, 1994
  156. Villalta, Jairo Francisco Hidalgo v. S.G.C. (F.C.T.D., no. A-1091-92), Reed, October 8, 1993
  157. Villegas Echeverri, Clara Ines v. M.C.I. (F.C., no. IMM-4046-10), Crampton, March 30, 2011; 2011 FC 390
  158. Vodopianov, Victor v. M.E.I. (F.C.T.D., no. A-1539-92), Gibson, June 20, 1995
  159. Win, Ko Ko v. M.C.I. (F.C., no. IMM-1248-08), Shore, March 28, 2008; 2008 FC 398
  160. Yamba: M.C.I. v. Yamba, Yamba Odette Wa (F.C.A., no. A-686-98), Isaac, Robertson, Sexton, April 6, 2000
  161. Yang, Hua v. M.C.I. (F.C.T.D., no. IMM-380-00), Gibson, November 24, 2000
  162. Yang, Xiaohong v. M.C.I. (F.C., no. IMM-8012-11), Rennie, July 4, 2012; 2012 FC 849
  163. Ye, Jin v. M.C.I (F.C., no. IMM-5518-13), Zinn, January 8, 2015; 2015 FC 21
  164. Youssef, Sawsan El-Cheikh v. M.C.I. (F.C.T.D., no. IMM-990-98), Teitelbaum, March 29, 1999
  165. 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.
  166. Zandi, Reza v. M.C.I. (F.C., no. IMM-4168-03), Kelen, March 17, 2004; 2004 FC 411
  167. Zhu, Yong Qin v. M.C.I. (F.C.T.D., no. IMM-5678-00), Dawson, September 18, 2001; 2001 FCT 1026. Reported: Zhu v. Canada (Minister of Citizenship and Immigration), [2002] 1 F.C. 379 (T.D.)

Notes

Note 1

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 2

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 3

Kerimu, Calvin v. M.C.I. (F.C., no. IMM-9793-04), Blanchard, February 28, 2006, 2006 FC 264. This case is 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 4

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

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Note 5

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 6

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 so-called three-prong “Hathaway test” referred to in the jurisprudence.

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Note 7

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 8

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 9

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… [see Yusuf and Fernandopoulle].”

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Note 10

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.”

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Note 11

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, footnote 1, 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.

Return to note 11 referrer

Note 12

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

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Note 13

Rahman, Faizur supra, footnote 10, 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 14

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 15

Ahmed, supra, footnote 10, per Marceau J.A.

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Note 16

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 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

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 19

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, footnote 16, and Kifoueti, supra, footnote 16 , where the changes were so recent that there was no evidence to indicate how the new regime would behave. In Alfarsy, supra, footnote 1, 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 20

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 21

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

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Note 22

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 23

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

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Note 24

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 25

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 26

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 27

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 28

In Obstoj, supra, footnote 23 , 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 29

Najdat, supra, footnote 27.

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Note 30

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 31

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.

Return to note 31 referrer

Note 32

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, infra, footnote 33 , 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). The principle of alienage, i.e., a claimant must be outside his or her country of origin, would necessitate that the person met the requirements of refugeehood at the time of departure from his or her country of origin, and that there was a subsequent change in circumstances, before the panel could consider the compelling reasons exception. The existence of past persecution does not automatically trigger the need to consider the application of the exception.

Return to note 32 referrer

Note 33

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.

Return to note 33 referrer

Note 34

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. See also Martinez, and Stapleton, supra, footnote 26.

Return to note 34 referrer

Note 35

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.

Return to note 35 referrer

Note 36

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…

Return to note 36 referrer

Note 37

Guzman, Jesus Ruby Hernandez v. M.C.I. (F.C.T.D., no. IMM-3748-97), Rothstein, October 29, 1998.  Note: A distinction needs to be drawn between a case where the evidence shows that there was a fundamental lack of subjective fear, as in Guzman, and a case where there was once a subjective fear and that fear no longer exists because of a change of circumstances. In the latter case, the claimant can still argue that there are compelling reasons not to return him or her to the country of past persecution.

Return to note 37 referrer

Note 38

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.

Return to note 38 referrer

Note 39

Sangha, Karamjit Singh v. M.C.I. (F.C.T.D., no. IMM-1555-98), Reed, September 8, 1998; Kalumba, supra, footnote 32.  In Singh, Gurmeet v. M.C.I., supra, footnote 32 , 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.

Return to note 39 referrer

Note 40

Moore, Clara v. M.C.I. (F.C.T.D., no. IMM-682-00), Heneghan, October 27, 2000.

Return to note 40 referrer

Note 41

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 42

The principles in Yamba, supra, footnote 41,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 43

See Buterwa, supra, footnote 2 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 44

Alfaka Alharazim, Suleyman v. M.C.I. (F.C., no. IMM-1828-09), Crampton, October 22, 2010; 2010 FC 1044.  See also Brovina, supra, footnote 32 , 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, supra, footnote 2, 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 alsoSabaratnam, 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, supra, footnote 43 .

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Note 45

Obstoj, supra, footnote 23 , at 748.

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Note 46

This caution was repeated in subsequent decisions of the Federal Court, e.g., Cortez, supra, footnote 31, at 2 (“in unusual circumstances”); Yusuf., supra, footnote 7, 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 47

Hassan, supra, footnote 32, at 5-6.

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Note 48

Shahid, supra, footnote 25 , at 138; Hitimana, Gustave v. M.C.I. (F.C.T.D., no. IMM-5804-01), Pinard, February 21, 2003; 2003 FCT 189; Isacko, supra, footnote 25 .

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Note 49

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 50

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 51

Shahid, supra, footnote 25 , at 138. This approach was cited with approval in Adjibi, infra, footnote 33 ; and, in relation to IRPA, in Isacko, supra, footnote 25 . In Shahid, the Court (at 136) also set out a summary of the state of the case law based on Arguello-Garcia., supra, footnote 46 , 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 (section 7.2.1).

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Note 52

Adjibi, supra, footnote 33 .

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Note 53

Shahid, supra, footnote 25 .

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Note 54

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 55

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, footnote 49 .  In Kulla, Saimir v. M.C.I. (F.C., no. IMM-6837-03), von Finckenstein, August 24, 2004; 2004 FC 1170, 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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Note 56

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 57

Suleiman, supra, footnote 49 , this decision was followed in Kotorri, supra, footnote 50.

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Note 58

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

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Note 59

Arguello-Garcia, supra, footnote 46 , at 288-289, per McKeown J.:  “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 60

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 61

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

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Note 62

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 63

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 64

Adjibi, supra, footnote 33 .

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Note 65

Suleiman, supra, footnote 49 .  This decision was followed in Kotorri, supra, footnote 50.

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Note 66

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 67

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

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Note 68

Arguello-Garcia., supra, footnote 46 , 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 69

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., supra, footnote 46 .” 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 70

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 71

Hitimana, supra, footnote 48 .  In Gicu, supra, footnote 46 , 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 also Isacko, supra, footnote 25 , 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 72

Igbalajobi, supra, footnote 54 .  In Hinson, supra, footnote 70, 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 73

Arguello-Garcia, supra, footnote 46 .

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Note 74

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 75

Kulla, Saimur, supra, footnote 55 .

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Note 76

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 77

Hitimana, supra, footnote 48 ; Suleiman, supra, footnote 49 .

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Note 78

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, section 5.5.

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Note 79

Adjibi, supra, footnote 33 .  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 2, section 2.1.1. Multiple Nationalities.

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Note 80

Chaudri, Tahir Ahmad Nawaz v. M.E.I. (F.C.A., no. A-1278-84), Thurlow, Hugessen, McQuaid, June 5, 1986.  Reported:  Chaudri v. Canada (Minister of Employment and Immigration) (1986), 69 N.R. 114 (F.C.A.); Diallo, Abdou Salam v. M.C.I. (F.C.T.D., no. A-1157-92), Noël, June 8, 1995.

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Note 81

Ghazizadeh, Reza v. M.E.I. (F.C.A., no. A-393-90), Hugessen, MacGuigan, Décary, May 17, 1993.  Reported:  Ghazizadeh v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 236 (F.C.A.).

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Note 82

Ben Zaied, Ali v. M.C.I. (F.C., no. IMM-7171-11), Boivin, June 18, 2012; 2012 FC 771.

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Note 83

Urur, Mohamed Ahmed v. M.E.I. (F.C.A., no. A-228-87), Pratte, Joyal, Walsh, January 15, 1988.In Cai, Heng Ye v. M.C.I. (F.C.T.D., no. IMM-1088-96), Teitelbaum, May 16, 1997, the Court underscored the importance of considering the claimant’s activities both in the home country and abroad in combination.

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Note 84

Barry, Abdoulaye v. M.C.I. (F.C.T.D., no. IMM-573-01), Pinard, February 26, 2002; 2002 FCT 203; Ghribi, Abdelkarim Ben v. M.C.I. (F.C., no. IMM-2580-02), Blanchard, October 14, 2003; 2003 FC 1191; Lai, Li Min v. M.C.I. (F.C., no. IMM-1849-04), Simpson, February 8, 2005; 2005 FC 179.

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Note 85

Manzila, Nicolas v. M.C.I. (F.C.T.D., no. IMM-4757-97), Hugessen, September 22, 1998.  See also A. B. v. M.C.I. (F.C., no. IMM-3497-08), Gibson, March 27, 2009; 2009 FC 325. Reported: A.B. v. Canada (Minister of Citizenship and Immigration), [2010] 2 F.C.R. 75 (F.C.), a PRRA case involving a claimant who rejected Islam after he came to Canada.

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Note 86

Demirtas, Alev v. M.C.I. (F.C., no. IMM-1781-10), O’Keefe, May 19, 2011; 2011 FC 584. See also Hannoon, Rami v. M.C.I. (F.C., no. IMM-3079-11), O’Keefe, April 18, 2012; 2012 FC 448, where the Court noted that “once a sur place claim was present, it was for the Board to deal with it …and should have considered the evidence and arguments presented.” In Gurung, Subash v. M.C.I. (F.C., no. IMM-10808-12), Mosley, October 16, 2013; 2013 FC 1042, the Court allowed the judicial review application because the RPD failed to deal with the sur place claim. Although the sur place claim was raised late, the issue was squarely put before the Board at the hearing and in post-hearing evidence.  In Desalegn, Tiruedel v. M.C.I. (F.C. no., IMM-2400-16), Russell, November 25, 2016; 2016 FC 1311, the Court held that where an appellant raises a sur place issue in her submissions to the RAD, the RAD should consider the issue. The same obligation applies to a PRRA officer, see Reyad Gad, Malak Lofti v. M.C.I. (F.C., no. IMM-4714-10), Harrington, March 14, 2011; 2011 FC 303.

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Note 87

Huang, Xiao Fang v. M.C.I. (F.C., no. IMM-3396-11), Zinn, February 10, 2012; 2012 FC 205. In this case, the evidence that was discounted without an explanation related to the claimant’s current religious beliefs.

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Note 88

Alfaro, Victor Labrador v. M.C.I. (F.C., no. IMM-7390-10), Rennie, July 22, 2011; 2011 FC 912.

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Note 89

Nasha Ragguette, Onica Efuru v. M.C.I. (F.C., no. IMM-7214-10), Rennie, December 21, 2011; 2011 FC 1511.

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Note 90

Ghazizadeh, supra, footnote 81.

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Note 91

Tang, Xiaoming v. M.C.I. (F.C.T.D., no. IMM-3650-99), Reed, June 21, 2000.

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Note 92

In M.C.I. v. Asaolu, Daniel Oluwafemi (F.C.T.D., no. IMM-237-98), Campbell, July 31, 1998. Reported:  Canada (Minister of Citizenship and Immigration) v. Asaolu (1998), 45 Imm. L.R. (2d) 190 (F.C.T.D.), Canadian immigration authorities sent the claimant’s story and photograph to a Canadian visa officer in Nigeria to facilitate an investigation of his claim of persecution. The Court considered paragraphs 94-96 of the UNHCR Handbook.  In Mutamba, Phydellis v. M.C.I. (F.C.T.D., no. IMM-2868-98), Pinard, April 15, 1999, Canadian authorities in Nairobi and Harare made inquiries of the Zimbabwean government with respect to the claimant’s passport application.

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Note 93

In Vafaei, Farah Angiz v. M.E.I. (F.C.T.D., no. IMM-1276-93), Nadon, February 2, 1994, the Court referred specifically to paragraph 96 of the UNHCR Handbook. See also André, Marie-Kettelie v. M.E.I. (F.C.T.D., no. A-1444-92), Dubé, October 24, 1994, where the CRDD found that the claimant’s participation in a large pro-Aristide demonstration in Montreal was not likely to cause her problems in Haiti.

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Note 94

Zhu, Yong Qin v. M.C.I. (F.C.T.D., no. IMM-5678-00), Dawson, September 18, 2001; 2001 FCT 1026.  Reported:  Zhu v. Canada (Minister of Citizenship and Immigration), [2002] 1 F.C. 379 (T.D.). The claimant, who arrived on a Korean vessel, had informed the RCMP about individuals later charged in Canada with offences relating to human smuggling and was subpoenaed to testify at their trial. He feared that if he returns to China he would be severely punished by the Chinese authorities and that the “snakeheads” in China seriously harm him, if not kill him.

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Note 95

Win, Ko Ko v. M.C.I. (F.C., no. IMM-1248-08), Shore, March 28, 2008; 2008 FC 398.

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Note 96

See Said, Mohamed Ahmed v. M.E.I. (F.C.T.D., no. 90-T-638), Teitelbaum, May 1, 1990, where the claimant continued to demonstrate against the Kenyan government after he had been ordered excluded from Canada; and Herrera, Juan Blas Perez de Corcho v. M.E.I. (F.C.T.D., no. A-615-92), Noël, October 19, 1993, where the claimant spoke out against the Cuban regime after claiming refugee status in Canada.

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Note 97

Ye, Jin v. M.C.I. (F.C., no. IMM-5518-13), Zinn, January 8, 2015; 2015 FC 21. See also Yang, Xiaohong v. M.C.I. (F.C., no. IMM-8012-11), Rennie, July 4, 2012; 2012 FC 849, where the Court found the RPD decision to be unreasonable because it had erroneously said there exists a “good faith” requirement for one’s religious beliefs.

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Note 98

Su, Hao Wen v. M.C.I. (F.C., no. IMM-7356-12), Gleason, May 17, 2013; 2013 FC 518.

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Note 99

Su, supra, footnote 98 . A case where the Court accepted that the RPD can import its overreaching credibility findings into its implicit consideration of whether a sur place claim arises in the case is Sanaei, Izad v. M.C.I. (F.C., no. IMM-11449-12), Strickland, April 30, 2014; 2014 FC 402. In Su, Jialu v. M.C.I. (F.C., no. IMM-4968-14), Fothergill, May 25, 2015; 2015 FC 666, the Court noted that the RPD is permitted to conduct its sur place analysis in view of its concerns regarding the original authenticity of a claim but must nevertheless determine, either implicitly or explicitly, whether the applicant, due to events that have transpired since his departure from his country of origin, has become a member of a persecuted group and whether he would now face persecution upon his return.

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Note 100

Li, Mengting v. M.C.I. (F.C. no. IMM-5548-17), Gagné, August 31, 2018; 2018 FC 877 at paragraph 29.

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Note 101

Ngongo, Ndjadi Denis v. M.C.I. (F.C.T.D., no. IMM-6717-98), Tremblay-Lamer, October 25, 1999.

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Note 102

Hathaway, The Law of Refugee Status, supra, footnote 6, page 39.

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Note 103

Asfaw, Napoleon v. M.C.I. (F.C.T.D., no. IMM-5552-99), Hugessen, July 18, 2000. In El Aoudie, Nour El Houda v. M.C.I. (F.C., no. IMM-7166-11), Shore, April 19, 2012; 2012 FC 450, the Court held that the RPD erred by limiting its analysis to the genuineness of the conversion instead of assessing whether that conversion made the applicant a refugee sur place.

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Note 104

Ghasemian, Marjan v. M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003; 2003 FC 1266.

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Note 105

Danian v. Secretary of State for the Home Department, [1999] E.W.J. No. 5459 online: QL.

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Note 106

Ejtehadian, Mostafa v. M.C.I. (F.C., no. IMM-2930-06), Blanchard, February 12, 2007; 2007 FC 158; Mohajery, Javad v. M.C.I. (F.C., no. IMM-2528-06), Blanchard, February 19, 2007; 2007 FC 185.  For a similar case involving a Chinese convert, see Chen, Hanqi v. M.C.I. (F.C., no. IMM-5203-08), de Montigny, June 29, 2009; 2009 FC 677.

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Note 107

Mutangadura, Chipo Pauline v. M.C.I. (F.C., no. IMM-2553-06), Phelan, March 20, 2007; 2007 FC 298.

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Note 108

See Nthoubanza, Arthur Jholy v. M.C.I. (F.C.T.D., no. IMM-207-98), Denault, December 17, 1998.  See also Sani, Navid Shahnazary v. M.C.I. and M.P.S.E.P.C. (F.C., nos. IMM-5284-07 and IMM-5285-07), Lagacé, July 30, 2008; 2008 FC 913, where, given the doubts about the sincerity with respect to the claimant’s conversion, the PRRA officer found that he could very well return to Islam once he was back in Iran and thus avoid being considered an apostate.

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Note 109

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

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Note 110

Kammoun, M. Hammadi Ben Hassen v. M.C.I. (F.C., no. IMM-4096-05), Tremblay-Lamer, February 3, 2006; 2006 FC 128.

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Note 111

Zandi, Reza v. M.C.I. (F.C., no. IMM-4168-03), Kelen, March 17, 2004; 2004 FC 411.  See also Mohajery, supra, footnote 106 .

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Note 112

Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.).  For a discussion of this topic see Chapter 9, section 9.3.5. on Exit Laws.

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Note 113

Moradi, Ahmad v. M.C.I. (F.C.T.D., no. IMM-2317-97), MacKay, September 23, 1998. 

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Note 114

Maina, Ali Adji v. M.C.I. (F.C.T.D., no. IMM-1221-99), Gibson, March 14, 2000; Yang, Hua v. M.C.I. (F.C.T.D., no. IMM-380-00), Gibson, November 24, 2000.  But see Igbinosun, Nelson v. M.C.I. (F.C.T.D., no. IMM-7410-93), McGillis, November 17, 1994, M.C.I. v. Mbouko, Augustin (F.C. No. IMM-1988-04), Lemieux, January 31, 2005; 2005 FC 126, and M.C.I. v. Habimana, Djuma, (IMM-5616-08), Pinard, January 6, 2010, 2010 FC 16, where the Court held that the Board did not properly assess the impact of the contact with the foreign authorities, i.e., were they already aware of the claimant’s situation or was it disclosed that the claimant had claimed refugee protection in Canada. An analysis of those factors is a determining factor in deciding whether the claimant was endangered by the actions of the Canadian authorities.

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