Chapter 10 - Exclusion clauses - Article 1E

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Table of Contents

  1. 10.1. Introduction
    1. 10.1.1. Test
    2. 10.1.2. Nature of the Residency Rights
    3. 10.1.3. Onus – Prima facie evidence
    4. 10.1.4. Onus to Renew Status
    5. 10.1.5. Access to obtain Status Substantially Similar to Nationals
    6. 10.1.6. Rights and Obligations of a National
    7. 10.1.7. Fear of Persecution and State Protection in the Article 1E Country
  2. 10.2. Table of Cases

10. Exclusion Clauses - Article 1E

10.1. Introduction

According to section 98 of the Immigration and Refugee Protection Act, a person who is excluded under Article 1E of the Refugee Convention is neither a Convention refugee nor a person in need of protection, and cannot therefore be determined to be such a person in relation to any country.Footnote 1

Section E of Article 1 of the Convention provides as follows:

This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

For this ground of exclusion to apply, the person must have taken up residenceFootnote 2 in a country outside the country of his or her nationality and have been recognized as having the rights and obligations which are attached to the possession of nationality of that country. The provision is not limited to a consideration of those countries in which the claimant took up residence as a refugee.Footnote 3

Where the Minister (or, if the Minister does not participate in the case, where the evidence) raises a prima facie case that the claimant is excluded under Article 1E, the burden is on the claimant to rebut it.Footnote 4 See more on this in Sections 10.1.1.2 and 10.1.3 below. Regarding the standard of proof applicable in Article 1E cases, in ZengFootnote 5 , the Court of Appeal upheld an RPD finding, made on a balance of probabilities, that the respondents possessed status in Chile.

10.1.1. Test

It used to be that at a minimum, the claimant had to be able to return to (automatically or by application), and remain in,Footnote 6 the putative Article 1E country before this provision could be invoked to exclude the claimant from protection under the Refugee Convention. However, this requirement is now qualified by the test set out by the Federal Court of Appeal in ZengFootnote 7.

In Zeng, the Court of Appeal set out the test to be applied in 1E determinations and clarified the law regarding the relevant date for determining status in the putative Article 1E country. The Court of Appeal answered the following certified questions in the affirmative:

Is it permissible for the Refugee Division to consider an individual's status in a third country upon arrival in Canada and thereafter, up until and including the date of the hearing before the Refugee Division in order to determine whether an individual should be excluded under Article 1E of the Refugee Convention?

Is it also permissible for the Refugee Division to consider what steps the individual took or did not take to cause or fail to prevent the loss of status in a third country in assessing whether Article 1E should apply?

The Court of Appeal reformulated the test to be applied to Article 1E determinations as follows:

[28] Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors.Footnote 8 These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts.Footnote 9

[29] It will be for the RPD to weigh the factors and arrive at a determination as to whether the exclusion will apply in the particular circumstances. [footnotes added - not part of original text]

The Court of Appeal in Zeng also stated:

[19] At the hearing of this appeal, the submissions of the parties evolved toward common ground. The Minister and the respondents agreed on a number of basic propositions, each of which I consider to be unassailable. Those propositions are:

  • the objectives set out in subsection 3(2) of the IRPA seek, among other things, to provide protection to those who require it and, at the same time, provide a fair and efficient program that maintains the integrity of the system;
  • the purpose of Article 1E is to exclude persons who do not need protection;
  • asylum shopping is incompatible with the surrogate dimension of international refugee protection;
  • Canada must respect its obligations under international law;
  • there may be circumstances where the loss of status in the third country is through no fault of a claimant in which case the claimant need not be excluded.

The principles relating to a determination of exclusion under Article 1E do not apply to stateless claimants. In Alsha’biFootnote 10, the Court found it was an error to apply the reasoning in Zeng to a determination about multiple countries of former habitual residence under Thabet (CA). In response to the Minister’s argument that the claimants had deliberately allowed their status to expire and that Zeng should apply when the RPD is considering the loss of status in countries of former habitual residence, the Court found that Thabet, not Zeng, is the applicable case law. Unlike Zeng, Thabet simply requires that the tribunal ask why the claimant cannot return to the country of their former habitual residence. See Chapter 2, section 2.2.2.

In Majebi,Footnote 11 the Court of Appeal held that the RAD is required to consider the claimant’s status in the putative 1E country as of the time of the RPD hearing.

10.1.2. Nature of the Residency Rights

If the claimant's status in the country where he or she has taken up residence is tentative, Article 1E does not apply. If the claimant has some sort of temporary status which must be renewed, and which may be cancelled,Footnote 12 or if the claimant does not have the right to be return, Article 1E may not be applicable.

In Wassiq,Footnote 13 the Court pointed out that the correct test is whether the putative Article 1E country recognizes the claimant's right to return there, even if his or her travel documents have expired, and not whether in international law, or from Canada's perspective, that country has formal or legal responsibility for the claimant.

 In Murcia Romero,Footnote 14 the Court held that the RPD erred in finding that the claimants were excluded under Article 1E by virtue of their status in the United States. The principal claimant's permanent residence in the U.S. was "conditional" on the support of her estranged husband, which she stated was no longer forthcoming, and therefore she could not renew her residency card.

The Court took a rigorous approach to this issue in Choezom.Footnote 15 The claimant, who was born in India of Tibetan parents, was considered to be a citizen of China. As a Tibetan resident of India, she was issued a Registration Certificate (RC), which was renewed annually. When she travelled to the United States for the purposes of study and employment (she resided there from 1994 to 2003), she was issued an Identity Certificate (IC) by India, which she continued to renew periodically. The RPD determined that the claimant had a right of return to India, that Indian authorities would issue her a RC for Tibetans upon return to India, and that she would not be at risk of being deported to Tibet. The RPD took into account the fact that the claimant and her parents, who continued to reside in India, had no difficulties in returning to India after travelling abroad. The Court held that the RPD had erred in excluding the claimant under Article 1E. To return to reside in India, the claimant must obtain a NORI (No Objection to Return to India), a valid IC and a visa. The requirement for annual RCs, ICs, visas, NORIs and the prohibition to visit certain locations within India are all antithetical to the "basic rights of status as nationals". All of these rights are not permanent and their renewal is at the discretion of the Indian government. The fact that there is no evidence that the Indian government has so far refused to issue RCs, ICs, visas or NORIs does not mean that it has given up the right to do so. Tibetan residents of India do not enjoy the same basic rights of status as Indian citizens enjoy.Footnote 16

The meaning of “withholding of removal status” in the United States has been considered in a number of cases. While the Court of Appeal in WangdenFootnote 17 has concluded that in the context of eligibility to make a claim under s. 101(1)(d) of IRPA, withholding of removal is equivalent to “being recognized as a Convention refugee”, thus rendering a person with that status ineligible to make a claim in Canada, there is case law distinguishing Wangden in the context of exclusion. In Molano FonnollFootnote 18, the Court held that the RPD had erred in concluding that withholding of removal status rendered the applicants excludable under Article 1 E, as that status is not compatible with the rights and obligations which are attached to the possession of nationality.

In ChoubakFootnote 19, the RPD considered the claimant’s assertion that, even though she had a German residency permit that was valid until December 2000, she lost her permanent residence status when she came to Canada on a student visa in September 1999, because she intended to remain permanently in Canada. The RPD found that the claimant was not excluded under Article 1E as her permanent residence permit had lapsed under s. 44(1) of the German Aliens Act (viz. “leaves the country for a reason which is inherently other than temporary”). The Court held that it was unreasonable for the Board to hold that the meaning of German law turns on the subjective desire of the claimant. The content of that provision requires proof by way of expert evidence of that foreign law. There was insufficient evidence to reasonably allow the Board to find that competent authorities in Germany would have considered the claimant to no longer be a permanent resident at the time of her admission to Canada.

10.1.3. Onus – Prima facie evidence

As indicated earlier, where there is prima facie evidence of permanent residence status, the Courts have imposed an onus on the claimant to establish whether or not that status was lost. The onus shifts even if the evidence emanates from the claimant and whether or not the Minister intervenes. Footnote 20

Examples of cases where the claimants did not meet that onus include the following. In ZengFootnote 21, the claimants (spouses) were found to have permanent resident status in Chile, even though they had left Chile with the intention of settling in China and had been outside Chile for more than a year at the time of their RPD hearing. In ParshottamFootnote 22, the claimant was found to have permanent resident status in the United States at the time of his PRRA assessment in December 2006, even though his green card had expired in June 2004. In LiFootnote 23, the claimant was found to have permanent residence in Argentina. She had acquired permanent resident status in 2003 with no expiry date. She was able to return to Argentina after an absence of almost two years and had made no inquiries as to whether she could re-enter Argentina after being in Canada. In MaiFootnote 24, the RPD determined that it was doubtful that the claimants, nationals of China, had lost their permanent resident status in Peru but even if they had, they could easily reacquire it without going back to China. In MohamedFootnote 25, the claimants made refugee claims in Sweden, left for Canada while their claims were still pending, and were granted permanent residence status in Sweden one month later. The Court upheld the CRDD’s exclusion finding. In NoelFootnote 26, the Court upheld the RAD’s conclusion that the following constituted prima facie evidence that the claimant was a permanent resident of Brazil: (i) the fact the claimant’s name appeared on a list of Haitians who had been granted permanent resident status; (ii) a stamp in his passport; and (iii) a national identity card from Brazil. In Melo CastrillonFootnote 27, the Court noted that the documentation indicated that the claimant could lose her PR status after a 12-month absence from Italy. It was therefore reasonable for the RPD to conclude that if the loss of permanent resident status were automatic after 12 months, the claimant should have been able to obtain this confirmation fairly easily, which she did not do.

In AghaFootnote 28, the Court concluded that the claimant, an Iranian national, had not adduced any evidence showing that he no longer had status in the United States, aside from the suggestion that he might lose his status because of his extended absence since 1985 and the voluntary departure order he received in 1995 when he was there on his way to Canada. According to an INS official, loss of status due to an extended absence was not automatic and the claimant continued to be a permanent resident until a U.S. immigration judge determined otherwise.

The Court came to a different conclusion on loss of U.S. permanent residence in TajdiniFootnote 29. Based on the evidence before the RPD in that case, the Court found that a ruling by a U.S. immigration court on loss of residency was not required. The Court upheld the reasonableness of the RPD’s finding that the claimant had established, on a balance of probabilities, that she was no longer a permanent resident, having regard to factors considered by the U.S. authorities for abandonment of status, such as moving to another country intending to live there permanently, remaining outside the U.S. for one year without obtaining a re-entry permit or returning resident visa, and failing to file income tax returns while living abroad.

10.1.4. Onus to Renew Status

The case of Shamlou,Footnote 30 as well as other decisions of the Federal Court, indicate that there is an onus on the claimant to renew their status in the putative Article 1E country, if it is renewable. Moreover, recognition of permanent resident status can exist without the right of re-entry (where the person can apply for a re-entry visa).Footnote 31

In Shahpari,Footnote 32 the claimant, an Iranian citizen, moved to France in 1984. In 1991, she acquired permanent residence and was issued a carte de résident, valid to 2001. In 1993, she returned to Iran, but in 1994, came back to France, and two months later came to Canada. At her CRDD hearing in 1997, her exit/re-entry visa for France had expired, but the panel found that Article 1E applied because that visa could be renewed. The Trial Division held that: (1) the onus is on the Minister in Article 1E cases, but once prima facie evidence is adduced, the onus shifts to the claimant to demonstrate why, having destroyed her carte de résident, she could not apply for a new one; and (2) that the evidence before the panel reasonably allowed it to conclude that the visa could be renewed.

Justice Rothstein also added:

[Claimants] should also remember that actions they themselves take which are intended to result in their not being able to return to a country which has already granted them Convention refugee status may well evidence an absence of the subjective fear of persecution in their original country from which they purport to be seeking refuge.

In summary, the Federal Court has held that, once there is prima facie evidence that Article 1E applies, the onus shifts to the claimant to demonstrate why:

  • their travel document cannot be renewedFootnote 33;
  • their (destroyed or lost) residency card cannot be re-issuedFootnote 34;
  • a re-entry visa cannot be obtainedFootnote 35;
  • their residency status cannot be renewed.Footnote 36

10.1.5. Access to obtain a Status Substantially Similar to Nationals

The second part of the Zeng test requires the member, in the case of claimant who does not have status at the date of the RPD hearing, to determine if the person previously had such status and lost it, or had access to such status and failed to acquire it. There is limited jurisprudence on this latter part of the test regarding access.

In TshiendelaFootnote 37, RPD excluded the principal claimant under Article 1E because she had the opportunity to apply for permanent resident status in South Africa by virtue of the citizenship of her husband and children, but never did. She had been living in South Africa, having been granted refugee status, after which she obtained a “Relative Visa” when she married a South African citizen. They had children who were South African citizens.

The RPD found that the claimant had access to permanent residency through both her status as a spouse of a South African citizen and as mother of her South African children. That status would have been substantially similar to that of citizens. She simply failed to acquire that status because she chose not to apply for it. The RPD then assessed her allegations of persecution in South Africa, and found she had a viable IFA in Cape Town or Port Elizabeth.

The Court found the RPD correctly applied the principles from Zeng and Shamlou. The claimant had a valid Relative Visa at the time she made her refugee claim. Although it expired before the last day of the hearing, she expressly allowed it to expire, so that fact cannot avail to her benefit. This visa provided her the right to work, study, travel, and access to social services, which would have only been heightened had she sought permanent residency. In light of this, there existed prima facie evidence that Article 1E applied and the onus shifted to the claimant to show why she could not reapply for a visa to return to South Africa or why she would not be granted permanent residency if she applied. She did not do so. The finding that she had a viable IFA within South Africa was also reasonable.

10.1.6. Rights and Obligations of a National

It does not appear that, for Article 1E to apply, a person must have the rights that are identical in every respect to those of a national of the country where the person has taken residence.Footnote 38

In determining whether the claimant falls within the ambit of Article 1E, the Trial Division in KroonFootnote 39 endorsed a consideration of the basic rights to which the claimant is entitled under the constitution and the laws of the putative Article 1E country and a comparison of those with the rights acknowledged for that country's nationals. The Court stated:

Here, the tribunal … sought to assess whether the [claimant] would be recognized under the Estonian Constitution and its laws as having basic rights and obligations which attach to nationals of that country. It found, with some important exceptions, that was the case and that in certain key respects the [claimant] would enjoy, in Estonia, a status comparable to that of Estonian nationals and consistent with international conventions and treaties relating to rights and obligations of individuals. In particular, it found … that the [claimant] could be expected to be restored to his rights of residency in Estonia as a registered non-citizen, upon his return, that within a reasonable time he would be entitled to apply for citizenship and in the meantime had a right to remain there with rights similar to most of those enjoyed by citizens.

The Court found this approach to be reasonable and one supported by legal writers such as Grahl-Madsen and Hathaway.Footnote 40

The Court, in Shamlou,Footnote 41 accepted as "an accurate statement of the law" the following four criteria that the Board should follow in undertaking an analysis of the "basic rights" enjoyed by a claimant, as outlined by Lorne Waldman in Immigration Law and Practice:Footnote 42

  1. the right to return to the country of residence;
  2. the right to work freely without restrictions;
  3. the right to study, and
  4. full access to social services in the country of residence.

If the [claimant] has some sort of temporary status which must be renewed, and which could be cancelled, or if the [claimant] does not have the right to return to the country of residence, clearly the [claimant] should not be excluded under Art. 1E.

The Court was satisfied the CRDD had come to a reasonable conclusion in determining that the claimant, an Iranian who had become a permanent resident of Mexico, enjoyed substantially the same rights as Mexican nationals. Although not entitled to vote, these rights included the ability to leave, re-enter and reside anywhere in the country, access to free health care, the right to purchase and own property, and the ability to seek, obtain and change employment.Footnote 43

It does not appear that determinations under Article 1E necessarily entail a rigid consideration of all of the criteria identified in the Shamlou case. In Hamdan,Footnote 44 the Trial Division stated as follows:

It is not necessary to comment on whether the criteria laid out in Shamlou must all be satisfied for exclusion under Article 1(E), or whether other criteria may be relevant in some cases. The relevant criteria will change depending on the rights which normally accrue to citizens in the country of residence subject to scrutiny.

In Juzbasevs,Footnote 45 the Court noted that the case law is not clear as to what factors need to be considered. It would appear that determinations under Article 1E do not necessarily involve a strict consideration of all factors regarding residency, as the analysis depends on the particular nature of the case at hand. International standards and practices may allow a state to limit government employment, political participation (such as the right to vote, the right to hold office), and some property rights to nationals. In Latvia, the country in question, certain professions were also closed to non-nationals, but this did not negate the application of Article 1E.

In Kamana,Footnote 46 the claimant had acquired refugee status in Burundi. The evidence indicated that refugee status in Burundi included the right not to be deported from that country. Except for the right to vote, he had the same rights as did Burundi citizens, namely, the right to education and to work. The Court therefore upheld the CRDD's decision that Article 1E applied.

In Ahmed,Footnote 47 the Court held that the RPD did not focus on the issue of whether the claimant had the rights and responsibilities of a national in the U.A.E. The right to work and the right to a health card are attributes of the rights of a national but they are not the sole rights to consider. The RPD failed to have before it clear evidence of the rights of U.A.E. nationals, as compared to the rights of the applicant, before it made its determination.

10.1.7. Fear of Persecution and State Protection in the Article 1E Country

At one point, it was not clear whether the Board could consider if the claimant had a refugee claim in relation to the putative Article 1E country. However, a number of decisions of the Federal Court suggest that the RPD can determine whether the claimant has a well-founded fear of persecution for a Convention reason in the Article 1E country (or a risk to life or risk of cruel and unusual treatment or punishment or danger of torture) and whether state protection is available to the claimant in that country.

The first case dealing explicitly with the matter was Kroon. In that case, Justice MacKay, in commenting on the purpose of Article 1E, seemed to suggest that if a claimant faced a threat of persecution in the putative Article 1E country, then that country would not be an Article 1E country.

In my view, the purpose of Article 1E is to support regular immigration laws of countries in the international community, and within the Immigration Act of this country to support the purposes of that Act and the policies it seeks to legislate, by limiting refugee claims to those who clearly face the threat of persecution. If A faces such a threat in his own country, but is living in another country, with or without refugee status, and there faces no threat of persecution for Convention reasons, or put another way, A enjoys the same rights of status as nationals of the second country, the function of Article 1E is to exclude that person as a potential refugee claimant in a third country.Footnote 48 (emphasis added)

In Choovak,Footnote 49 the Court held that the CRDD erred in not turning its mind to the specific claim made by the claimant, an Iranian national, against Germany, where she was given asylum and had a special temporary residence status before coming to Canada. More recently, in Omar,Footnote 50 the Court held that the Board, before determining if the claimant should be excluded under Article 1E, was obliged to consider whether he would be at risk in South Africa, where he had been accepted as a refugee, including whether he could access adequate state protection.

In Zhao,Footnote 51 the Federal Court held that the RPD had properly assessed the availability of state protection from a criminal gang in Brazil, where the claimant, a Chinese national, had permanent residence status.

In Gao,Footnote 52 the claimants were Chinese citizens but had been permanent residents of Panama for 20 years. The Court agreed with the RPD that Article 1E applied to them and that with respect to their fear of harm in Panama, they had failed to rebut the presumption of state protection in that country.

In Omorogie,Footnote 53 the Court stated the following:

[61] Article 1E of the Convention arises when the claimant does not have a well-founded fear of persecution or a risk of harm under Article 97(1) in the Article 1E country.

In RomelusFootnote 54, the Court quashed a RAD decision because the RAD had stated that Article 1E applied, and then proceeded to examine the risk in the Article 1E country. The Court found this was an error, and stated that the analysis of the risk in the Article 1E country must be done before deciding if the person should be excluded under Article 1E.

10.2. Table of Cases

  1. Ahmed, Nadeem Imtiaz v. M.C.I. (F.C., no. IMM-626-07), Phelan, February 15, 2008; 2008 FC 195
  2. Chen, Xiangju v. M.C.I. (F.C. no. IMM-5636-17), Barnes, July 19, 2018; 2018 FC 756
  3. Choezom, Tendzin v. M.C.I. (F.C., no. IMM-1420-04), von Finckenstein, September 30, 2004; 2004 FC 1329
  4. Choovak: M.C.I. v. Choovak, Mehrnaz (F.C.T.D., no.IMM-3080-01), Rouleau, May 17, 2002; 2002 FCT 573
  5. Choovak: M.C.I. v. Choubak (a.k.a. Choovak), Mehrnaz Joline (F.C., no. IMM-3462-05), Blanchard, April 26, 2006; 2006 FC 521
  6. Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998
  7. Dieng, Khady Kanghe et al. v. M.C.I. (FC., no. IMM-5029-12), de Montigny, April 30, 2013; 2013 FC 450
  8. Gao, Kun Kwan. v. M.C.I. (F.C., no. IMM-10862-12), Shore, February 28, 2014; 2014 FC 202
  9. Hamdan, Kadhom Abdul Hu v. M.C.I. (F.C.T.D., no. IMM-1346-96), Jerome, March 27, 1997. Reported: Hamdan v. Canada (Minister of Citizenship and Immigration) (1997), 38 Imm. L.R. (2d) 20 (F.C.T.D.)
  10. Hassanzadeh, Baharack v. M.C.I. (F.C., no. IMM-3545-03), Blais, December 18, 2003; 2003 FC 1494
  11. Hurt v. Canada (Minister of Manpower and Immigration), [1978] 2 F.C. 340 (C.A.)
  12. Hussein Ramadan, Hanan v. M.C.I. (F.C., no. IMM-1510-10), Tremblay-Lamer, November 5, 2010; 2010 FC 1093
  13. Juzbasevs, Rafaels v. M.C.I. (F.C.T.D., no. IMM-3415-00), McKeown, March 30, 2001; 2001 FCT 262
  14. Kanesharan, Vijeyaratnam v. M.C.I. (F.C.T.D., no. IMM-269-96), Heald, September 23, 1996. Reported: Kanesharan v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 185 (F.C.T.D.)
  15. Kroon, Victor v. M.E.I. (F.C.T.D., no. IMM-3161-93), MacKay, January 6, 1995
  16. Li, Hong Lian v. M.C.I. (F.C., no. IMM-585-09), Mandamin, August 24, 2009; 2009 FC 841
  17. Lu, Yanping v. M.C.I. (F.C., no. IMM-5083-11), Phelan, March 15, 2012; 2012 FC 311
  18. M.C.I. v. Alsha’bi, Hanan (F.C., no. IMM-2032-15), Strickland, December 14, 2015; 2015 FC 1381
  19. Mahdi, Roon Abdikarim v. M.C.I. (F.C.T.D., no. IMM-1600-94), Gibson, November 15, 1994. Reported: Mahdi v. Canada (Minister of Citizenship and Immigration) (1994), 26 Imm. L.R. (2d) 311 (F.C.T.D.)
  20. Mahdi: M.C.I. v. Mahdi, Roon Abdikarim (F.C.A., no. A-632-94), Pratte, MacGuigan, Robertson, December 1, 1995. Reported: Canada (Minister of Citizenship and Immigration) v. Mahdi (1995), 32 Imm. L.R. (2d) 1 (F.C.A.)
  21. Mai, Jian v. M.C.I. (F.C., no. IMM-1155-09), Lemieux, February 22, 2010; 2010 FC 192
  22. Majebi, Henry v. M.C.I. (F.C.A., no. A-52-16), Dawson, Near, Woods, November 9, 2016; 2016 FCA 274
  23. Melo Castrillon, Ruby Amparo v. M.C.I. (F.C. no. IMM-1617-17), Roy, May 1, 2018; 2018 FC 70
  24. Mohamed, Hibo Farah v. M.C.I. (F.C.T.D., no. IMM-2248-96), Rothstein, April 7, 1997
  25. Mohamud: M.C.I. v. Mohamud, Layla Ali (F.C.T.D., no. IMM-4899-94), Rothstein, May 19, 1995
  26. Mojahed, Majid v. M.C.I. (F.C., no. IMM-7157-14), de Montigny, May 28, 2015; 2015 FC 690
  27. Molano Fonnoll, German Guillermo v. M.C.I. (F.C., no. IMM-2626-11), Scott, December 12, 2011; 2011 FC 1461
  28. Murcia Romero, Ingrid Yulima v. M.C.I. (F.C., no. IMM-3370-05), Snider, April 21, 2006; 2006 FC 506
  29. Nepete, Firmino Domingos v. M.C.I. (F.C.T.D., no. IMM-4471-99), Heneghan, October 11, 2000
  30. Noel, Oriol v. M.C.I. (F.C. no. IMM-1795-18), Gagné, October 23, 2018; 2018 FC 1062
  31. Nwaeze, Jones Ernest Am v. M.C.I. (F.C., no. IMM-1112-09), Tremblay-Lamer, November 10, 2009; 2009 FC 1151
  32. Obumuneme, Chinenye Evelyn c. M.C.I. (C.F., IMM-995-18), Norris, 16 janvier 2019; 2019 CF 59
  33. Olschewski, Alexander Nadirovich v. M.E.I. (F.C.T.D., no. A-1424-92), McGillis, October 20, 1993
  34. Omar, Weli Abdikadir v. M.C.I. (F.C. no., IMM-4929-16, Mactavish, May 8, 2017; 2017 FC 458
  35. Omorogie, Juan v. M.C.I. (F.C., no. IMM 2843-14), O’Keefe, November 5, 2015; 2015 FC 1255
  36. Osazuwa, Steven v. M.C.I. (F.C., no. IMM-846-15), Russell, February 8, 2016; 2016 FC 155
  37. Parshottam, Karim Badrudin v. M.C.I. (F.C., no. IMM-192-07), Mosley, January 15, 2008; 2008 FC 51
  38. Parshottam, Karim Badrudin v. M.C.I. (F.C.A., no. A-73-08), Evans, Ryer, Sharlow (concurring in result), November 14, 2008; 2008 FCA 355.  Reported: Parshottam v. Canada (Minister of Citizenship and Immigration, [2009] 3 F.C.R. 527 (F.C.A.)
  39. Romelus, Gast Maelo c. M.C.I. (C.F. IMM-2916-18), St-Louis, 11 février 2019; 2019 CF 172
  40. Sartaj: M.C.I. v. Sartaj, Asif (F.C., no. IMM-1998-05), O’Keefe, March 14, 2006; 2006 FC 324
  41. Shahpari, Khadijeh v. M.C.I. (F.C.T.D., no. IMM-2327-97), Rothstein, April 3, 1998
  42. Shamlou, Pasha v. M.C.I. (F.C.T.D, no. IMM-4967-94), Teitelbaum, November 15, 1995. Reported: Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.)
  43. Shen, Jintang v. M.C.I. (F.C., no. IMM-2037-15), Phelan, January 28, 2016; 2016 FC 99
  44. Su, Canxiong c. M.C.I. (C.F. IMM-1949-18), Boswell, 18 janvier 2019; 2019 CF 75
  45. Tajdini: M.C.I. v. Tajdini, Sima (F.C., no. IMM-1270-06), Mactavish, March 1, 2007; 2007 FC 227
  46. Tshiendela, Nelly Nsekele c. M.C.I. (C.F., IMM-3141-18), Bell, 21 mars 2019; 2019 CF 344
  47. Wangden, Tenzin v. M.C.I. (F.C.A. no., A-607-08), Evans, Sharlow, Ryer, November 23, 2009; 2009 FCA 344
  48. Wasel, Abdulkader v. M.C.I. (F.C., no. IMM-2288-15), Brown, December 22, 2015; 2015 FC 1409
  49. Wassiq, Pashtoon v. M.C.I. (F.C.T.D., no. IMM-2283-95), Rothstein, April 10, 1996
  50. X (Re), 2018 CanLII 131735 (SAR MB8-01495), Roberts, 27 novembre 2018
  51. Zeng: M.C.I. v. Zeng, Guanqiu (F.C.A., no. A-275-09), Noël, Layden-Stevenson, Stratas, May 10, 2010; 2010 FCA 118
  52. Zhao, Ri Wang v. M.C.I. (F.C., no IMM-9624-03), Blanchard, August 4, 2004; 2004 FC 1059

Notes

Note 1

M.C.I. v. Sartaj, Asif (F.C., no. IMM-1998-05), O’Keefe, March 14, 2006; 2006 FC 324, where the Court found that the RPD erred in finding the claimant to be a Convention refugee with respect to Pakistan where it had already ruled that he was excluded under Article 1E with respect to Costa Rica.

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Note 2

In Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998, the claimant, a citizen of Sudan, was eligible for temporary resident status in Greece, a country where he had never resided, because of his marriage to a Greek national. The Court held that the CRDD erred in excluding the claimant under Article 1E on the ground that he should have sought asylum in Greece.

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Note 3

Kroon, Victor v. M.E.I. (F.C.T.D., no. IMM-3161-93), MacKay, January 6, 1995. The applicant urged the Court to find that “the exclusion provision under Article 1E should be strictly construed and should be confined to those cases where an applicant has moved from his or her own country of nationality to seek refugee status in another country where he or she then resides with essentially similar rights to those of nationals of the second country. It is urged the provision has no application in the circumstances of this case where the applicant, as a Russian national and a citizen of the U.S.S.R., was authorized to reside in Estonia when it was a state within the U.S.S.R., but it has since evolved to be an independent state in which the applicant has fewer rights than originally accorded to him as a resident.” The Court stated it was not persuaded that “the words of Article 1E should be so narrowly applied”.

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Note 4

In Lu, Yanping v. M.C.I. (F.C., no. IMM-5083-11), Phelan, March 15, 2012; 2012 FC 311 a case regarding a Chinese national, the prima facie case consisted of Chilean residency documents and confirmation from the Chilean consulate that he had permanent resident status in Chile.

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Note 5

M.C.I. v. Zeng, Guanqiu (F.C.A., no. A-275-09), Noël, Layden-Stevenson, Stratas, May 10, 2010; 2010 FCA 118. See also M.C.I. v. Tajdini, Sima (F.C., no. IMM-1270-06), Mactavish, March 1, 2007; 2007 FC 227. But see Wasel, Abdulkader v. M.C.I. (F.C., no. IMM-2288-15), Brown, December 22, 2015; 2015 FC 1409, in which the Court, relying on Shahpari, Khadijeh v. M.C.I. (F.C.T.D., no. IMM-2327-97), Rothstein, April 3, 1998, stated that “because it is a low threshold determination, the Minister's onus is met by virtue of the fact the Applicant has a Greek Permanent Resident Permit which prima facie i.e., on a basis of less than the balance of probabilities, establishes the application of the exclusion in Article 1E.”

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Note 6

Mahdi, Roon Abdikarim v. M.C.I. (F.C.T.D., no. IMM-1600-94), Gibson, November 15, 1994. Reported: Mahdi v. Canada (Minister of Citizenship and Immigration) (1994), 26 Imm. L.R. (2d) 311 (F.C.T.D.), affirmed on appeal M.C.I. v. Mahdi, Roon Abdikarim (F.C.A., no. A-632-94), Pratte, MacGuigan, Robertson, December 1, 1995. Reported: Canada (Minister of Citizenship and Immigration) v. Mahdi (1995), 32 Imm. L.R. (2d) 1 (F.C.A.).

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Note 7

Zeng, supra, footnote 5.

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Note 8

In Mojahed, Majid v. M.C.I. (F.C., no. IMM-7157-14), de Montigny, May 28, 2015; 2015 FC 690, the Court considered the case of an Iranian national who had voluntarily resigned his permanent resident status in Austria, by staying outside of the country for more than one year. The Court found that the RPD had reasonably considered and weighed the various relevant factors and upheld the finding of exclusion.

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Note 9

The test was applied in Hussein Ramadan, Hanan v. M.C.I. (F.C., no. IMM-1510-10), Tremblay-Lamer, November 5, 2010; 2010 FC 1093, with respect to a Lebanese claimant with permanent resident status in Paraguay. In Rrotaj, Gjon v. M.C.I. (F.C.A., no. A-79-16), Stratas, Webb, Woods, November 21, 2016; 2016 FCA 292, the Federal Court of Appeal was presented with the following certified question: “Does Article 1E of the Refugee Convention, as incorporated into IRPA, apply if a claimant’s third country residency status (including the right to return) is subject to revocation at the discretion of that country’s authorities?” The Court rejected the appeal on the basis that the certified question was not proper and that Zeng had already answered the question to the extent it can be answered. In Su, Canxiong v. M.C.I. (F.C. no. IMM-1949-18), Boswell, January 18, 2019; 2019 FC 75 the Court upheld an RPD decision wherein the claimants were excluded under Article 1E despite the fact their permanent resident status in Peru had elapsed. The RPD considered that they had allowed their status to lapse voluntarily and they were not genuine Falun Gong practitioners; therefore, they would not be at risk in their country of nationality, China.

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Note 10

M.C.I. v. Alsha’bi, Hanan (F.C., no. IMM-2032-15), Strickland, December 14, 2015; 2015 FC 1381. The Court noted:

[81] Thus, in effect, what the Minister seeks is to broaden Article 1E to exclude persons whose status is less than that of a national. However, in my view, because of the difference in status, the principles guiding exclusion under Article 1E have questionable import in the test in Thabet, where the question is focused only on whether the stateless claimant has a right of return to a safe country of former habitual residence.

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Note 11

Majebi, Henry v. M.C.I. (F.C.A., no. A-52-16), Dawson, Near, Woods, November 9, 2016; 2016 FCA 274. Leave to appeal dismissed by the Supreme Court of Canada on June 1, 2017 (Court docket no. 37437).

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Note 12

In Olschewski, Alexander Nadirovich v. M.E.I. (F.C.T.D., no. A-1424-92), McGillis, October 20, 1993, although the claimants could re-apply for Ukrainian citizenship, their applications would be dealt with on a “case-by-case” basis and it was not clear that they would be able to return to their country of birth. In M.C.I. v. Mohamud, Layla Ali (F.C.T.D., no. IMM-4899-94), Rothstein, May 19, 1995, the Court noted that the permit given to the Somali claimant by the Italian authorities, which was renewable annually, “does not give her rights analogous to Italian nationals. While the [claimant] had many rights, such as the right to work and travel in, and leave and return to Italy, she did not have the right to remain in Italy once the war was over and conditions [in Somalia] returned to normal.” While Justice Rothstein was “not prepared to say that section E of Article 1 of the Convention means that a person … must have rights that are identical in every respect to those of a national,” it did, in his view, “mean that an important right such as the right to remain (in the absence of unusual circumstances such as a criminal conviction) must be afforded.” In Kanesharan, Vijeyaratnam v. M.C.I. (F.C.T.D., no. IMM-269-96), Heald, September 23, 1996. Reported: Kanesharan v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 185 (F.C.T.D.), although the Sri Lankan claimant had been given extended permission to remain in the United Kingdom, the Court found that the CRDD erred in excluding him because the UK Home Office reserved the right to remove persons to their country of nationality “should the prevailing circumstances change significantly in a positive manner,” and their eligibility to remain in the UK indefinitely after seven years was not a certainty. The “tentative and conditional language” used by the Home Office did not entitle the CRDD to conclude as it did. See also Hurt v. Canada (Minister of Manpower and Immigration), [1978] 2 F.C. 340 (C.A.), at 343, where the claimant, a Polish national, was advised by the German authorities that his temporary visa, which was soon due to expire, would not be renewed and that he would be deported.

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Note 13

Wassiq, Pashtoon v. M.C.I. (F.C.T.D., no. IMM-2283-95), Rothstein, April 10, 1996. In this case, the claimants were from Afghanistan and had been granted refugee status in Germany. The evidence in the case indicated that their German travel documents had expired and that the Government had refused to extend them stating that because of the applicants’ extended absence from Germany and their sojourn in Canada, “responsibility under the 1951 Geneva refugee Convention had passed to Canada”. The issue was whether Germany recognized that the applicants had the rights and obligations which are attached to the possession of German nationality, including the right to return and not which country was responsible for them under the Convention.

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Note 14

Murcia Romero, Ingrid Yulima v. M.C.I. (F.C., no. IMM-3370-05), Snider, April 21, 2006; 2006 FC 506.

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Note 15

Choezom, Tendzin v. M.C.I. (F.C., no. IMM-1420-04), von Finckenstein, September 30, 2004; 2004 FC 1329.

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Note 16

The situation of claimants with connections to China, Tibet and India has been considered in the context of country of reference (rather than a possible 1E country) with India being considered either a putative country of citizenship or a country of former habitual residence. See more on this in Chapter 2.

Return to note 16 referrer

Note 17

Wangden, Tenzin v. M.C.I. (F.C.A. no., A-607-08), Evans, Sharlow, Ryer, November 23, 2009; 2009 FCA 344.

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Note 18

Molano Fonnoll, German Guillermo v. M.C.I. (F.C., no. IMM-2626-11), Scott, December 12, 2011; 2011 FC 1461. In a different context than “withholding of removal” the Court rejected the applicant’s argument based on issue estoppel that in a case where the Minister finds a person to be eligible to make a claim, the RPD is bound by that finding and cannot exclude the person. See Omar, Weli Abdikadir v. M.C.I. (F.C. no., IMM-4929-16), Mactavish, May 8, 2017; 2017 FC 458.

Return to note 18 referrer

Note 19

M.C.I. v. Choubak (a.k.a. Choovak), Mehrnaz Joline (F.C., no. IMM-3462-05), Blanchard, April 26, 2006; 2006 FC 521.

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Note 20

In Obumuneme, Chinenye Evelyn v. M.C.I. (F.C. no. IMM-995-18), Norris, January 16, 2019; 2019 FC 59 the claimant produced a copy of the resident permit “permesso di soggiorno” from Italy which stated on its face that it was of indefinite validity. The Minister did not intervene in the claim. The Court rejected the argument that the onus only shifts if the Minister has intervened and led evidence regarding the application of Article 1E. ,

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Note 21

Zeng, supra, footnote 5.  The female claimant’s temporary resident status in Chile had also expired.

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Note 22

Parshottam, Karim Badrudin v. M.C.I. (F.C.A., no. A-73-08), Evans, Ryer, Sharlow (concurring in result), November 14, 2008; 2008 FCA 355.  Reported: Parshottam v. Canada (Minister of Citizenship and Immigration, [2009] 3 F.C.R. 527 (F.C.A.).  Affirming Parshottam, Karim Badrudin v. M.C.I. (F.C., no. IMM-192-07), Mosley, January 15, 2008; 2008 FC 51.

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Note 23

Li, Hong Lian v. M.C.I. (F.C., no. IMM-585-09), Mandamin, August 24, 2009; 2009 FC 841.

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Note 24

Mai, Jian v. M.C.I. (F.C., no. IMM-1155-09), Lemieux, February 22, 2010; 2010 FC 192.

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Note 25

Mohamed, Hibo Farah v. M.C.I. (F.C.T.D., no. IMM-2248-96), Rothstein, April 7, 1997. Although the Swedish permanent residence certificate had to be periodically renewed, there was no evidence that permanent residence in Sweden was subject to some form of arbitrary cancellation.

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Note 26

Noel, Oriol v. M.C.I. (F.C. no. IMM-1795-18), Gagné, October 23, 2018; 2018 FC 1062. Also see X (Re), 2018 CanLII 131735 (RAD MB8-01495), Roberts, November 27, 2018 wherein the RAD found that the fact the appellants’ names appear in the joint ministerial act from the ministry of justice and the ministry of labour and social security is prima facie evidence of permanent residence status in Brazil.

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Note 27

Melo Castrillon, Ruby Amparo v. M.C.I. (F.C. no. IMM-1617-17), Roy, May 1, 2018; 2018 FC 470.

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Note 28

Agha, Sharam Pahlevan Mir v. M.C.I. (F.C.T.D., no. IMM-4282-99), Nadon, January 12, 2001.

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Note 29

M.C.I. v. Tajdini, Sima (F.C., no. IMM-1270-06), Mactavish, March 1, 2007; 2007 FC 227. The Court upheld the RPD’s conclusion that the claimant was not asylum shopping.  She did not voluntarily renounce her status in order to seek asylum elsewhere. She had left the U.S. in 1996, returning to her native Iran, and travelled to Canada in 2004 to escape from problems that occurred in Iran several years after her return there.

Return to note 29 referrer

Note 30

Shamlou, Pasha v. M.C.I. (F.C.T.D, no. IMM-4967-94), Teitelbaum, November 15, 1995.  Reported:  Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.). In that case, the claimant, a citizen of Iran, had lived in Mexico for an extended period and obtained a travel and identity document which allowed him to leave and re-enter Mexico. The claimant allowed his Mexican travel documents to lapse when he unsuccessfully sought residence in the U.S.A. before coming to Canada.

Return to note 30 referrer

Note 31

Nepete, Firmino Domingos v. M.C.I. (F.C.T.D., no. IMM-4471-99), Heneghan, October 11, 2000.

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Note 32

Shahpari, Khadijeh v. M.C.I. (F.C.T.D., no. IMM-2327-97), Rothstein, April 3, 1998.  Reported:  Shahpari v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 139 (F.C.T.D.). This case was applied in Kamana, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999; Nepete, supra, footnote 31; Juzbasevs, Rafaels v. M.C.I. (F.C.T.D., no. IMM-3415-00), McKeown, March 30, 2001; 2001 FCT 262; M.C.I. v. Choovak, Mehrnaz (F.C.T.D., no.IMM-3080-01), Rouleau, May 17, 2002; 2002 FCT 573, Hassanzadeh, Baharack v. M.C.I. (F.C., no. IMM-3545-03), Blais, December 18, 2003; 2003 FC 1494, and Chen, Xiangju v. M.C.I. (F.C. no. IMM-5636-17), Barnes, July 19, 2018; 2018 FC 756 in which the Court rejected the argument that the claimant was prevented from reapplying for permanent resident status in Venezuela because Canadian authorities had seized his Chinese passport. The Court held that there was no evidence that he had requested it. Only if such a request was refused could an argument be advanced that Canada had wrongfully frustrated his good intentions.

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Note 33

Shamlou, supra, footnote 30.

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Note 34

Shahpari, supra, footnote 32.

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Note 35

Shahpari, supra, footnote 32; Nepete, supra, footnote 31.

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Note 36

Kamana, supra, footnote 32; Hassanzadeh, supra, footnote 32; Chen, supra, footnote 32.

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Note 37

Tshiendela, Nelly Nsekele v. M.C.I. (F.C. no. IMM-3141-18), Bell, March 21, 2019; 2019 FC 344.

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Note 38

For example, in Osazuwa, Steven v. M.C.I. (F.C., no. IMM-846-15), Russell, February 8, 2016; 2016 FC 155, the Court noted that the RAD had concurred with the RPD that there is no requirement for benefits to be identical to those of nationals in order to engage Article 1E; they only need to be “substantially similar”. 

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Note 39

Kroon, supra, footnote 3, at 167.

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Note 40

Kroon, supra, footnote 3, at 168.  See Atle Grahl-Madsen, The Status of Refugees in International Law, (Leyden: A W. Sijthoff, 1966), Volume 1, pages 269-270 [out of print], and James C. Hathaway, The Law of Refugee Status, (Toronto: Butterworths, 1991), pages 211-214. The discussion of this aspect of Article 1E exclusion in the second edition of James C. Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2014) is found at pages 500-509.

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Note 41

Shamlou, supra, footnote 30,at 152.

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Note 42

(Toronto: Butterworths, 1992), vol. 1, §8.218 at 8.204-8.205 (Issue 17/2/97).

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Note 43

Shamlou, supra, footnote 30.

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Note 44

Hamdan, Kadhom Abdul Hu v. M.C.I. (F.C.T.D., no. IMM-1346-96), Jerome, March 27, 1997. Reported: Hamdan v. Canada (Minister of Citizenship and Immigration) (1997), 38 Imm. L.R. (2d) 20 (F.C.T.D.), at 23. In this case, the Court found it critical that the claimant could neither work nor access social services in the Philippines.

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Note 45

Juzbasevs, supra, footnote 32.

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Note 46

Kamana, supra, footnote 32.

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Note 47

Ahmed, Nadeem Imtiaz v. M.C.I. (F.C., no. IMM-626-07), Phelan, February 15, 2008; 2008 FC 195.

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Note 48

Kroon, supra, footnote 3, at 167-168. Quaere whether there is an internal contradiction in the judgment or whether MacKay J. might be simply suggesting that in considering whether a country is in fact an Article 1E country, the Board should consider whether the claimant faces a threat of persecution there (as opposed to considering the issue of persecution after determining the country to be an Article 1E country). See also Shamlou, supra, footnote 30,at 142, where the Court notes that both the CRDD, in its reasons, and the respondent, in his arguments, referred to the lack of persecution in Mexico (the Article 1E country) as one of the factors taken into consideration in concluding that the claimant enjoyed most of the rights and obligations of a national in that country. The Court itself does not list this factor in its conclusions. In Olschewski, supra, footnote 12, the Court implicitly agreed that the CRDD could in fact assess a claim against the Article 1E country. As the Court put it, “…even if I am wrong in concluding that the Article does not apply, I am nevertheless of the opinion that the Board erred in the articulation of its reasons in support of its conclusion that the [claimants] failed to establish a well-founded fear of persecution in Ukraine on the basis of religion.

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Note 49

M.C.I. v. Choovak, supra, footnote 32. See alsoNepete, supra,footnote 31, where the Court upheld the CRDD’s finding that the claimant, an Angolan national, did not establish a well-founded fear of persecution in his country of residence (the Czech Republic). A similar approach was taken by the Court in Juzbasevs, supra, footnote 32, and Nwaeze, Jones Ernest Am v. M.C.I. (F.C., no. IMM-1112-09), Tremblay-Lamer, November 10, 2009; 2009 FC 1151.

Return to note 49 referrer

Note 50

Omar, supra, footnote 18.

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Note 51

Zhao, Ri Wang v. M.C.I. (F.C., no IMM-9624-03), Blanchard, August 4, 2004; 2004 FC 1059.  See also the following cases where the Court upheld the RPD’s determination of the availability state protection in Article 1E countries: Li, supra, footnote 23; Mai, supra, footnote 24; Ramadan, supra, footnote 9;and  Dieng, Khady Kanghe et al. v. M.C.I. (FC., no. IMM-5029-12), de Montigny, April 30, 2013; 2013 FC 450.

Return to note 51 referrer

Note 52

Gao, Kun Kwan. v. M.C.I. (F.C., no. IMM-10862-12), Shore, February 28, 2014; 2014 FC 202. In Ramadan, supra, footnote 9, the Court agreed with the RPD that the Lebanese claimant had permanent resident status in Paraguay and was therefore excluded and that she had not rebutted the presumption of state protection in Paraguay (with respect to the claim of spousal abuse). And in Shen, Jintang v. M.C.I. (F.C., no. IMM-2037-15), Phelan, January 28, 2016; 2016 FC 99, similar findings were made with respect to a Chinese claimant with status in Ecuador.

Return to note 52 referrer

Note 53

Omorogie, Juan v. M.C.I. (F.C., no. IMM‑2843-14), O’Keefe, November 5, 2015; 2015 FC 1255.

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Note 54

Romelus, Gast Maelo v. M.C.I. (F.C. no. IMM-2916-18), St-Louis, February 11, 2019; 2019 FC 172.

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