- Note 1
For example, the Court has noted that one of the relevant international human rights instruments is the
Convention on the Rights of the Child (CRC) and that when determining whether a child claiming refugee status fits the definition of Convention refugee, decision-makers must inform themselves of the distinctive rights recognized in the CRC. It is the denial of these rights which may determine whether or not a child has a well-founded fear of persecution. See
Kim, Jae Wook v. M.C.I. (F.C., no. IMM-4200-09), Shore, February 12, 2010; 2010 FC 149. See also the IRB
Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, which states at footnote 8 that: “In determining the child's fear of persecution, the international human rights instruments, such as the
Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights and the
Convention on the Rights of the Child, should be considered in determining whether the harm which the child fears amounts to persecution.” See also the
Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution which in Part B sets out the relevant international human rights instruments applicable to the determination of gender-specific forms of persecution.
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- Note 2
Gur, Irem v. M.C.I. (F.C., no. IMM-6294-11), de Montigny, August 14, 2012; 2012 FC 992. See also
Antoine, Belinda v. M.C.I. (F.C., no. IMM-4967-14), Fothergill, June 26, 2015; 2015 FC 795, where the PRRA Officer had held that in order to avoid persecution, the applicant must continue to avoid an overtly lesbian lifestyle. The Court held that the expectation that an individual should practice discretion with respect to her sexual orientation is perverse, as it requires the individual to repress an immutable characteristic. See also Akpojiyovwi, Evelyn Oboaguonona v. M.C.I. (F.C. no. IMM-200-18), Roussel, July 17, 2018; 2018 FC 745 at paragraph 9. Also, in A.B. v M.C.I. (F.C. no. IMM-3251-17), Mactavish, April 6, 2018; 2018 FC 373 at paragraph 11, although the Court did not come to a conclusion, it questioned whether it would be reasonable to expect an individual to remain single and childless in order to avoid the risk of pregnancy, childbirth, and reinfibulation, or whether that would constitute a serious interference with basic human rights.
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- Note 3
Sagharichi, Mojgan v. M.E.I. (F.C.A., no. A-169-91), Isaac, Marceau, MacDonald, August 5, 1993, at 2. Reported:
Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.); Leave to appeal to the Supreme Court of Canada was denied without reasons on February 17, 1994 [1993] S.C.C.A. No. 461 (QL);
Saddouh (Kaddouh), Sabah v. M.E.I. (F.C.T.D., no. IMM-2200-93), Denault, February 2, 1994, where the Court dealt with threats and acts of extortion.
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- Note 4
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 20 Imm. L.R. (2d) 85.
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- Note 5
Ward, ibid., at 733-734. See also
Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), at 324-325.
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- Note 6
Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, at 635.
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- Note 7
Chan, ibid., at 635. The majority of the Court decided the case on other grounds and did not rule explicitly on this issue. For a more detailed discussion of the Chan judgment, see Chapter 9, section 9.3.7. With respect to considering Canadian standards or laws see Antonio, Pacato Joao v. M.E.I. (F.C.T.D., no. IMM-1072-93), Nadon, September 27, 1994, at 11-12. See also the UNHCR Handbook, paragraph 60.
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- Note 8
El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994, at 4. The appeal was dismissed by the Federal Court of Appeal:
M.C.I. v. El Khatib, Naif (F.C.A., no. A-592-94), Strayer, Robertson, McDonald, June 20, 1996.
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- Note 9
Sagharichi, supra, footnote 3, at 2 (unreported);
Saddouh, supra, footnote 3. See also
Kwiatkowsky v. Canada (Minister of Employment and Immigration), [1982] 2 S.C.R. 856, at 862 and 863. The Trial Division has also distinguished between persecution and mere unfairness: Chen, Yo Long v. M.C.I. (F.C.T.D., no. IMM-487-94), Richard, January 30, 1995, at 4.
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- Note 10
Sagharichi, supra, footnote 3, at 2, per Marceau J.A. Even though the claimant may not be able to point to an individual episode of mistreatment which could be characterized as persecution, the claimant may still have experienced persecution or have good grounds for fearing persecution: see the discussion of cumulative acts in section 3.1.2. of this chapter, and the discussion of well-founded fear in Chapter 5.
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- Note 11
Nejad, Hossein Hamedi v. M.C.I. (F.C.T.D., no. IMM-2687-96), Muldoon, July 29, 1997, at 2. In the typescript of the Court’s reasons, the first portion of this passage is presented as though it were part of a quotation from
Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.); however, the statements in question do not actually appear in that case, and seem instead to have been the words of Muldoon J. himself. On this same theme, see paragraphs 40 and 52 of the UNHCR Handbook. The Court noted in
Bayrak, Ibrahim v. M.C.I. (F.C., no. IMM-11458-12), Shore, October 21, 2013; 2013 FC 1056 that certain risks and dangers are even more serious when taking into account the claimants’ age and their vulnerability as a result of the inherent weaknesses associated with being elderly.
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- Note 12
Compare these lines with the affirmation in Ward., supra, footnote 4, at 747, that “the examination of the circumstances should be approached from the perspective of the persecutor”, and with the emphasis placed upon the intent of a law (which may be equated with the intent of the agent of persecution) by
Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.), at 552, quoted in Chapter 9, section 9.3.2. (proposition 1). Compare also
Zolfagharkhani’s assertion, at 552, that the neutrality of a law is to be judged objectively: see Chapter 9, section 9.3.2. (proposition 2).
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- Note 13
Ward., supra, footnote 4, at 733-734. See excerpt reproduced at pages 1-2 of this chapter.
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- Note 14
Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984. Reported:
Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.).
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- Note 15
Rajudeen, ibid., at 133-134, per Heald J.A.
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- Note 16
Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.), at 396, per Marceau J.A.
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- Note 17
See also
Kadenko, Ninal v. S.G.C. (F.C.T.D., no. IMM-809-94), Tremblay-Lamer, June 9, 1995. Reported:
Kadenko v. Canada (Solicitor General) (1995), 32 Imm. L.R. (2d) 275 (F.C.T.D.), rev’d
M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Décary, Hugessen, Chevalier, October 15, 1996, where the Trial Division, at 6, considered a dictionary definition of “isolated”, and concluded that, where repeated incidents of harassment, together with physical attacks, had occurred over the course of a year and a half, it was unreasonable to speak of “isolated” acts. (The Court of Appeal reversed the decision on the issue of state protection and did not deal with the persecution findings. Leave to appeal to the Supreme Court of Canada was denied without reasons on May 8, 1997, [1996] C.S.C.R. No. 612 (QL). In
Ahmad, Rizwan v. S.G.C. (F.C.T.D., no. IMM-7180-93), Teitelbaum, March 14, 1995, at paragraph 23, the Court distinguished between systematic events and ones that were only periodic.
Return to note 17 referrer
- Note 18
Abramov, Andrei v. M.C.I. (F.C.T.D., no. IMM-3576-97), Tremblay-Lamer, June 15, 1998.
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- Note 19
In two decisions, the Trial Division certified questions regarding the need for persistence, the questions being almost identical in the two cases:
Murugiah, Rahjendran v. M.E.I. (F.C.T.D., no. 92-A-6788), Noël, May 18, 1993, at 6; and
Rajah, Jeyadevan v. M.E.I. (F.C.T.D., no. 92-A-7341), Joyal, September 27, 1993, at 5-6. In Rajah, the question was phrased thus: “Whether ‘persecution’ within the meaning of the Convention Refugee definition requires systematic and persistent acts or whether one or two violations of basic and inalienable rights such as forced labour or beatings while in police detention is enough to constitute ‘persecution’.” However, neither case was heard on appeal. The Federal Court of Appeal granted a motion to dismiss the appeal in Murugiah on April 4, 1997, on the grounds that the appeal was moot (F.C.A., no. A-326-93). In Rajah, the Federal Court of Appeal dismissed an application for an extension of time to file a notice of appeal (February 1, 1995).
Essentially the same question was proposed for certification in
Muthuthevar, Muthiah v. M.C.I. (F.C.T.D., no. IMM-2095-95), Cullen, February 15, 1996. Cullen J., declining to certify, said at 5: “I think it is settled law that, in some instances, even a single transgression of the applicant’s human rights would amount to persecution.” See also
Gutkovski, Alexander v. S.S.C. (F.C.T.D., no. IMM-746-94), Teitelbaum, April 6, 1995, where at 9, the Court noted: “…the events must be sufficiently serious or systematic to amount to a reasonable fear of persecution.” (emphasis in original). However, note the discussion in Chapter 9, section 9.3.3. regarding “Policing Methods, National Security and Preservation of Social Order”.
Return to note 19 referrer
- Note 20
Ranjha, Muhammad Zulfiq v. M.C.I. (F.C.T.D., no. IMM-5566-01), Lemieux, May 21, 2003; 2003 FCT 637, at paragraph 42.
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- Note 21
Sztojka, Andras v. M.C.I. (F.C., no. IMM-2005-11), Mosley, October 20, 2011; 2011 FC 1202.
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- Note 22
Ward, supra, footnote 4, at 732. See also the excerpt from
Rajudeen, supra, footnote 14, reproduced in section 3.1.1.2. of this chapter. And see
Karaseva, Tatiana v. M.C.I. (F.C.T.D., no. IMM-4683-96), Teitelbaum, November 26, 1997, at paragraphs 10, 14-15, and 17-22. In Molaei,
Farzam v. M.C.I. (F.C.T.D., no. IMM-1611-97), Muldoon, January 28, 1998, the Court noted that there must be a nexus between the personal situation of the claimant and the general situation of the country of nationality in which the claimant fears persecution. And in
Cetinkaya, Lukman v. M.C.I. (F.C.T.D., no. IMM-2559-97), Muldoon, July 31, 1998, the Court noted that while certain members of the PKK in Turkey may face persecution, it is for the claimant to demonstrate that she falls within that class of individuals who face persecution, as well as to provide the necessary link between her actions and the persecution feared. See also
Li, Qing Bing v. M.C.I. (F.C.T.D., no. IMM-5095-98), Reed, August 27, 1999, where the claimant stated, among other things, that the government of China does not provide basic medical services, nor does it allow him an adequate opportunity to earn a living. The Court agreed with the CRDD that there was no nexus between the claimant's hardships and a Convention ground.
Return to note 22 referrer
- Note 23
Suvorova, Galina v. M.C.I. (F.C., no. IMM-3447-08), Russell, April 14, 2009; 2009 FC 373.
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- Note 24
Bhatti, Naushaba v. S.S.C. (F.C.T.D., no. A-89-93), Jerome, September 14, 1994. Reported:
Bhatti v. Canada (Secretary of State) (1994), 25 Imm. L.R. (2d) 275 (F.C.T.D.).
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- Note 25
Pour-Shariati, Dolat v. M.E.I. (F.C.A., no. A-721-94), MacGuigan, Robertson, McDonald, June 10, 1997, at 4. Reported:
Pour-Shariati v. Canada (Minister of Employment and Immigration) (1997), 39 Imm. L.R. (2d) 103 (F.C.A.). Followed in
Kanagalingam, Uthayakumari v. M.C.I. (F.C.T.D., no IMM-566-98), Blais, February 10, 1999, where the Court held that the loss of the claimant's father, brother and fiancé at the time when the IPKF governed the security situation in the north of Sri Lanka, was indirect persecution and, therefore, not persecution within the meaning of the definition. The Trial Division certified the following question in
Gonzalez, Brenda Yojana v. M.C.I. (F.C.T.D., no. IMM-1092-01), Dawson, March 27, 2002; 2002 FCT 345: “Can a refugee claim succeed on the basis of a well-founded fear of persecution for reason of membership in a particular social group that is a family, if the family member who is the principal target of the persecution is not subject to persecution for a Convention reason?” The appeal to the Federal Court of Appeal [in Gonzalez] was discontinued on February 7, 2003 (F.C.A., no. A-198-02). The concept of “indirect persecution” was considered in
Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983, at paragraph 14, where the Court held that “any persecution which the second child Canadian-born infant will experience in China is directly experienced by the parents, and is not ‘indirect persecution’.” For a more detailed discussion of the concept of “indirect persecution”, see Chapter 9, section 9.4.
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- Note 26
Granada, Armando Ramirez v. M.C.I. (F.C., no. IMM-83-04), Martineau, December 21, 2004; 2004 FC 1766.
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- Note 27
This concept of the family as a particular social group was further considered in
Ndegwa, Joshua Kamau v. M.C.I. (F.C., no. IMM-6058-05), Mosley, July 5, 2006; 2006 FC 847 at paragraph 11, where the Court held that the claimant was “not just an ‘unwilling spectator of violence’ against other members of his family” (his wife and daughter), as described in
Granada, and that the RPD should have considered whether the claimant “himself may be at risk due to the relationship with his wife.”
Return to note 27 referrer
- Note 28
Abrego, Apolonio Paz v. M.E.I. (F.C.A., no. A-348-91), Hugessen, Linden, Holland, February 18, 1993.
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- Note 29
See Chapter 4, section 4.7. See also
Atwal, Mohinder Singh v. M.C.I. (F.C.T.D., no. IMM-6769-98), Nadon, November 17, 1999, where the Court agreed with the CRDD that there was no nexus between the applicant's claim and a Convention ground as the alleged acts of persecution were the result of personal vengeance and not the result of the claimant's political opinions.
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- Note 30
Cortez, Delmy Isabel v. S.S.C. (F.C.T.D., no. IMM-2482-93), McKeown, December 15, 1993, at 2. See also
Pierre-Louis, Edy v. M.E.I. (F.C.A., no. A-1264-91), Hugessen, MacGuigan, Décary, April 29, 1993, at 2 (personal vengeance);
Sirin, Hidayet v. M.C.I. (F.C.T.D., no. IMM-5720-93), Pinard, November 28, 1994 (family vendetta); Balendra, Cheran v. M.C.I. (F.C.T.D., no. IMM-1653-94), Richard, January 30, 1995, at 3 (police corruption); and
Karaseva, supra, footnote 22, at 14-15, and 17-22 (crimes allegedly with ethnic motivation).
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- Note 31
Alifanova, Nathalia v. M.C.I. (F.C.T.D., no. IMM-5501-97), Teitelbaum, December 11, 1998.
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- Note 32
Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154 (C.A.).
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- Note 33
Mayers, ibid., at 169-170, per Mahoney J.A.
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- Note 34
Diluna, Roselene Edyr Soares v. M.E.I. (F.C.T.D., no. IMM-3201-94), Gibson, March 14, 1995, at 4. Reported:
Diluna v. Canada (Minister of Employment and Immigration) (1995), 29 Imm. L.R. (2d) 156 (F.C.T.D.). In an earlier decision, the Trial Division seemed inclined to the view that the abuse involved in the case did constitute persecution:
Narvaez v. Canada (Minister of Citizenship and Immigration), [1995] 2 F.C. 55 (T.D.), at 64 and 70-1.
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- Note 35
Resulaj, Blerina v. M.C.I. (F.C., no. IMM-7205-03), Von Finckenstein, September 14, 2004.
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- Note 36
Aros, Angelica Elizabeth Navarro v. M.C.I. (F.C.T.D., no. IMM-4480-96), MacKay, February 11, 1998
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- Note 37
See, for example,
Ravji, Shahsultan Meghji v. M.E.I. (F.C.T.D., no. A-897-92), McGillis, August 4, 1994 (the particular harm in question should have been considered by the Refugee Division in its assessment of cumulative acts).
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- Note 38
See, for example:
Gomez-Rejon, Bili v. M.E.I. (F.C.T.D., no. IMM-470-93), Joyal, November 25, 1994, at 3 and 8; Chen, supra, footnote 9, at 5; and
Karpounin, Maxim Nikolajevitsh v. M.E.I. (F.C.T.D., no. IMM-7368-93), Jerome, March 10, 1995. In
Rawji, Riayz v. M.E.I. (F.C.T.D., no. IMM-5929-93), Gibson, November 25, 1994, where crime had befallen the claimant and police had refused to investigate unless bribed, the Court indicated, at 2, that neither persecution nor nexus to a Convention ground was involved. See also Chapter 4, section 4.7. In Kaur, Biba v. M.C.I. (F.C.T.D., no. IMM-305-96), Jerome, January 17, 1997, the claimant had been raped while in detention. The Refugee Division characterized her as a “random victim of violence”, finding no nexus to a Convention ground (and also no well-foundedness), but the Court held that the mistreatment “was a direct consequence of her detention for political reasons” (at 2).
In
Mousavi-Samani, Nasrin v. M.C.I. (F.C.T.D., no. IMM-4674-96), Heald, September 30, 1997, the claimants had exposed fraud perpetrated by state officials, and feared retaliation and prosecution. As in
Rawji, the Refugee Division had found both persecution and nexus to be lacking, and the Court upheld these findings.
For other cases where the Court upheld the CRDD’s finding of no nexus based on criminality, see:
Montoya, Hernan Dario Calderon v. M.C.I. (F.C.T.D., no. IMM-5027-00), Hansen, January 18, 2002; 2002 FCT 63 (family targeted for kidnapping because of their wealth);
Bencic, Eva v. M.C.I. (F.C.T.D., no. IMM-3711-00), Kelen, April 26, 2002; 2002 FCT 476 (persecution directly related to criminals seeking to extort money and automobiles); and
Yoli, Hernan Dario v. M.C.I. (F.C.T.D., no. IMM-399-02), Rouleau, December 30, 2002; 2002 FCT 1329 (claimant had evidence regarding perpetrators’ identity and criminal activities).
In
Zefi, Sheko v. M.C.I. (F.C.T.D., no. IMM-1089-02), Lemieux, May 21, 2003; 2003 FCT 636, at paragraph 41, the Court held that a family or clan involved in a blood feud is not a particular social group, as such revenge killings have nothing to do with the defence of human rights; to the contrary, they constitute a violation of human rights: “Recognition of a social group on this basis would have the anomalous result of according status to criminal activity, status because of what someone does rather than what someone is.”
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- Note 39
See, for example, Dragulin, Constantin Marinescu v. S.G.C. (F.C.T.D., no. IMM-46-94), Rouleau, December 23, 1994, at 3-5; and
Njoko, Tubila v. M.E.I. (F.C.T.D., no. A-1698-92), Jerome, January 25, 1995, at 2.
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- Note 40
Ansar, Iqbal v. M.C.I. (F.C.T.D., no. IMM-4124-97), Campbell, July 22, 1998.
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- Note 41
Ward, supra, footnote 4, at 709, 717, 720-1; Chan, supra, footnote 6, per La Forest (dissenting) at 630.
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- Note 42
Bougai, Zoia (a.k.a. Bougai, Zoya) v. M.C.I. (F.C.T.D., no. IMM-4966-94), Gibson, June 15, 1995, at 6.
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- Note 43
Malchikov, Alexander v. M.C.I. (F.C.T.D., no. IMM-1673-95), Tremblay-Lamer, January 18, 1996, at paragraph 26.
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- Note 44
Moudrak, Vanda v. M.C.I. (F.C.T.D., no. IMM-1480-97), Teitelbaum, April 1, 1998.
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- Note 45
Valdes, Roberto Manuel Olivares v. M.C.I. (F.C.T.D., no. IMM-1902-97), Pinard, April 24, 1998. Reported:
Valdes v. Canada (Minister of Citizenship and Immigration) (1998), 47 Imm. L.R. (2d) 125 (F.C.T.D.).
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- Note 46
Madelat, Firouzeh v. M.E.I., Mirzabeglui, Maryam v. M.E.I. (F.C.A., nos. A-537-89 and A-538-89), MacGuigan, Mahoney, Linden, January 28, 1991;
Retnem, Rajkumar v. M.E.I. (F.C.A., no. A-470-89), MacGuigan, Décary, Pratte (dissenting), May 6, 1991. Reported:
Retnem v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 317 (F.C.A.), at 319;
Iossifov, Svetoslav Gueorguiev v. M.E.I. (F.C.T.D., no. A-854-92), McKeown, December 8, 1993, at 2.
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- Note 47
El Khatib, supra, footnote 8, at 3;
Nina, Razvan v. M.C.I. (F.C.T.D., no. A-725-92), Cullen, November 24, 1994, at 9. For an examination of cumulative acts in the context of an internal flight alternative, see Chapter 8, section 8.5.1.
In
Horvath, Karoly v. M.C.I. (F.C.T.D., no. IMM-4335-99), MacKay, April 27, 2001, referring to
Retnem, supra, footnote 46, the Court held that it was an error for the Board to fail to consider the cumulative effect of the treatment suffered by the claimants when that treatment was consistently accepted as being discriminatory and as indicative of serious problems facing Roma in Hungary.
Horvath was cited with approval in
Keninger, Erzsebet v. M.C.I. (F.C.T.D., no. IMM-3096-00), Gibson, July 6, 2001.
Furthermore, in
Bursuc, Cristinel v. M.C.I. (F.C.T.D., no. IMM-5706-01), Dawson, September 11, 2002; 2002 FCT 957, the Court held that, in considering the cumulative effect of incidents, the CRDD must have regard to the whole of the evidence, and not just evidence after the culminating incident.
In
Kamran, Mohsin Ali v. M.C.I. (F.C., no. IMM-4760-10), Russell, March 29, 2011; 2011 FC 380, a case involving an Ahmadi from Pakistan, the Court noted that the RPD erred in dealing with incidents sequentially and by compartmentalizing them.
Return to note 47 referrer
- Note 48
Mete, Dursun Ali v. M.C.I. (F.C., no. IMM-2509-04), Dawson, June 17, 2005; 2005 FC 840, at paragraph 9. Furthermore, in
Devi, Nalita v. M.C.I. (F.C., no. IMM-3994-06), Layden-Stevenson, February 8, 2007; 2007 FC 149, the Court stated, at paragraph 16, that “where the cumulative effect of a number of discriminating acts has the potential to result in a finding of persecution, it is not open to the RPD to place some acts [on] one side of the line [common criminality] and other acts on the other side of the line [harassment/discrimination], without providing some rationale for having done so.” In contrast, in Abdalqader, Haneen N.M. v. M.C.I. (F.C. no. IMM-3536-17), Gleeson, April 13, 2018; 2018 FC 405, the Court upheld the RPD decision and found that the RPD had engaged in a detailed assessment of the various forms of discrimination and addressed the claimants’ particular circumstances. This case involved stateless Palestinians from Jordan. The RPD considered that non-citizens did not have the same access to state schools, were excluded from health insurance, and were prohibited from owning property, but found that when considered together it did not amount to persecution. The RPD noted that despite the restrictions, the claimants obtained a university education and had access to health care, even though they had to pay for it. A similar conclusion was reached in El Assadi Kamal, Bilal v. M.C.I. (F.C. no. IMM-4984-17), Roussel, May 25, 2018; 2018 FC 543, a case involving a stateless Palestinian from Lebanon. The Court upheld the RPD’s conclusion that although Palestinian refuges in Lebanon face widespread and systematic discrimination in regards to employment, education, medical care and social services, these restrictions would not lead to consequences of a substantially prejudicial nature.
Return to note 48 referrer
- Note 49
Ban, Istvan Gyorgy v. M.C.I. (F.C. no. IMM-1198-18), Gleeson, October 3, 2018; 2018 FC 987 at paragraph 23.
Return to note 49 referrer
- Note 50
Kadhm, Suhad Mohamed v. M.C.I. (F.C.T.D., no. IMM-652-97), Muldoon, January 8, 1998.
Return to note 50 referrer
- Note 51
M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Nadon, Décary, Létourneau, March 5, 2008; 2008 FCA 84.
Return to note 51 referrer
- Note 52
Mete, supra, footnote 48.
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- Note 53
Rodriguez-Hernandez, Severino Carlos v. S.S.C. (F.C.T.D., no. A-19-93), Wetston, January 10, 1994, at 3.
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- Note 54
Liang, Hanquan v. M.C.I. (F.C. no. IMM-3342-07), Tremblay-Lamer, April 8, 2008; 2008 FC 450. An example of a case where the young age of the claimant (a 13 year old abandoned child) was considered in assessing the cumulative effect of the various harms they faced is
M.C.I. v. Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008: 2008 FC 747.
Return to note 54 referrer
- Note 55
In
M.C.I. v. Hund, Matthew, (IMM-5512-07), Lagacé, February 5, 2009; 2009 FC 121, the Court found that the Board had erred in considering abandonment by the respondents’ own family; targets and attacks by a deputy sheriff; threats made at public meetings by members of their community; and several relocations over a span of four years as cumulative acts of discrimination. The Court noted that the incidents did not fall within the definitions of discrimination and persecution. For example, with reference to abandonment the Court noted that, “abandonment by one’s own family, though an unpleasant occurrence, remains an unfortunate social and familial dynamic faced in the best families regardless of the religious beliefs and political opinions; as such it does not equate to discrimination.”
Return to note 55 referrer
- Note 56
Gebre-Hiwet, Tewodros v. M.C.I. (F.C., no. IMM-3844-09), Phelan, April 30, 2010; 2010 FC 482.
Return to note 56 referrer
- Note 57
M.C.I. v. Munderere, Bagambake Eugene (F.C.A., no. A-211-07), Nadon, Décary, Létourneau, March 5, 2008; 2008 FCA 84, at paragraph 48. Leave to appeal to the Supreme Court of Canada was dismissed without reasons on August 14, 2008 (S.C.C. File no. 32602).
Return to note 57 referrer
- Note 58
Munderere, ibid. at paragraph 49.
Return to note 58 referrer
- Note 59
Munderere, ibid., at paragraph 52.
Return to note 59 referrer
- Note 60
Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (C.A.), per Desjardins J.A. at 723, aff’d Chan (S.C.C.),
supra, footnote 6. In
Mendoza, Elizabeth Aurora Hauayek v. M.C.I. (F.C.T.D., no. IMM-2997-94), Muldoon, January 24, 1996, at 4: the Court said that rape “is a form of brutality especially utilizable for the humiliation and brutalization of women. It is not to be treated lightly”. In
Arguello-Garcia, Jacobo Ignacio v. M.E.I. (F.C.T.D., no. 92-A-7335), McKeown, June 23, 1993. Reported:
Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.), at 287, sexual abuse was part of the persecution suffered by the male claimant. But see
Cortez, supra, footnote 30, where the rape was found not to constitute persecution. See also Chapter 9, section 9.3.3. for further discussion of measures such as beating.
In
Iruthayanathar, Joseph v. M.C.I. (F.C.T.D., no. IMM-3619-99), Gibson, June 15, 2000, while following
Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), (discussed in Chapter 9, section 9.3.3.), the Court determined that beatings in detention, alone, can constitute persecution. For a case discussing harmful treatments at checkpoints, see
Thambirajah, Sathan v. M.C.I. (F.C., no. IMM-382-11), Bédard, October 20, 2011; 2011 FC 1196. The Court noted that being beaten, detained, or made to pay a bribe to a paramilitary group to be released cannot reasonably be characterized as a mere inconvenience or as being vigorously questioned. In
Ismayilov, Anar v. M.C.I. (F.C., no. IMM-7263-14), Mactavish, August 26, 2015; 2015 FC 1013, the Court found the RPD’s finding that the treatment the claimant received was “routine questioning” to be perverse. The claimant had been repeatedly arrested and detained because of his religious faith. He was questioned, insulted, beaten, denied food, water and the ability to pray, and forcibly shaved.
Return to note 60 referrer
- Note 61
Porto, Javier Cardozo v. M.E.I. (F.C.T.D., no. A-1549-92), Noël, September 3, 1993, at 3. In
Warner, Leslie Kervin v. M.C.I. (F.C., no. IMM-4283-10), Zinn, March 23, 2011; 2011 FC 363, a case involving mistreatment based on the claimant’s homosexuality, the Court found unreasonable the RPD’s conclusion that the many incidents of very serious physical violence directed against the claimant and his partner were, even cumulatively, no more than harassment and discrimination. The fact that laws criminalizing homosexual acts are not enforced is relevant to the issue of state protection and not to the issue of whether acts perpetrated by non-state actors amount to persecution.
Return to note 61 referrer
- Note 62
Munoz, Alfonso La Rotta v. M.C.I. (F.C.T.D., no. IMM-2207-93), Pinard, November 28, 1994, at 3.
Return to note 62 referrer
- Note 63
Gidoiu, Ion v. S.S.C. (F.C.T.D., no. IMM-2907-94), Wetston, April 6, 1995, at 1.
Return to note 63 referrer
- Note 64
Antonio, supra, footnote 7, at 11-12, where the offence in question was treason (in the form of espionage and sabotage);
Chu, Zheng-Hao v. M.C.I. (F.C.T.D., no. IMM-5159-94), Jerome, January 17, 1996, at 5. See also
Singh, Tejinder Pal v. M.C.I. (F.C.T.D., no. IMM-5294-97), Muldoon, December 23, 1997 (supplementary reasons), at paragraphs 9-13.
Return to note 64 referrer
- Note 65
Cheung, supra, footnote 5, at 324, per Linden J.A.: “the forced sterilization of women is a fundamental violation of basic human rights. It violates Articles 3 and 5 of the
United Nations Universal Declaration of Human Rights.” With respect to sterilization and abortion, see Chapter 9, section 9.3.7., where the one-child policy in China is discussed.
Return to note 65 referrer
- Note 66
Chan (S.C.C.),
supra, footnote 6, per La Forest J. (dissenting) at 636. The majority in the Supreme Court did not expressly comment on the issue, although Mr. Justice Major appeared to assume that forced sterilization would indeed constitute persecution: see, for example, 658 and 672-673. See also Chan (F.C.A.),
supra, footnote 60, per Heald J.A. at 686, and per Mahoney J.A. (dissenting) at 704.
Return to note 66 referrer
- Note 67
Lai, Quang v. M.E.I. (F.C.T.D., no. IMM-307-93), McKeown, May 20, 1994, at 2.
Return to note 67 referrer
- Note 68
Zheng, Jin Xia v. M.C.I. (F.C., no. IMM-3121-08), Barnes, March 30, 2009; 2009 FC 327. The Court noted that the RPD erred in finding that the requirement to use an IUD is not persecutory because it arises from a law of general application. See also M.C.I. v. Ye, Yanxia (F.C., no. IMM-8797-12), Pinard, June 13, 2013; 2013 FC 634.
Return to note 68 referrer
- Note 69
Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.).
Return to note 69 referrer
- Note 70
Oyarzo v. Canada (Minister of Employment and Immigration), [1982] 2 F.C. 779 (C.A.), at 782, per Heald J. See also
Amayo v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 520 (C.A.); and Asadi, Sedigheh v. M.C.I. (F.C.T.D., no. IMM-1921-96), Lutfy, April 18, 1997, at 3. See also
Herczeg, Zsolt v. M.C.I. (F.C., no. IMM-5538-06), Mandamin, October 23, 2007; 2007 FC 2000, at paragraph 20.
Return to note 70 referrer
- Note 71
Ammery, Poone v. S.S.C. (F.C.T.D., no. IMM-5405-93), MacKay, May 11, 1994, at 4.
Nejad, supra, footnote 11. See
Serwaa, Akua v. M.C.I. (F.C., no. IMM-295-05), Pinard, December 20, 2005; 2005 FC 1653, at paragraph 6, where the Court stated that it seemed that stalking would be included in the definition of persecution, depending on the facts of the case. See also
Herczeg, Zsolt v. M.C.I. (F.C., no. IMM-5538-06), Mandamin, October 23, 2007; 2007 FC 2000, at paragraph 19.
Return to note 71 referrer
- Note 72
Bragagnini-Ore, Gianina Evelyn v. S.S.C. (F.C.T.D., no. IMM-2243-93), Pinard, February 4, 1994, at 2.
Return to note 72 referrer
- Note 73
Kicheva, Zorka v. M.E.I. (F.C.T.D., no. A-625-92), Denault, December 23, 1993, at 2.
Return to note 73 referrer
- Note 74
Ling, Che Keung v. M.E.I. (F.C.T.D., no. 92-A-6555), Muldoon, May 20, 1993.
Return to note 74 referrer
- Note 75
Sulaiman, Hussaine Hassan v. M.C.I. (F.C.T.D., no. IMM-525-94), MacKay, March 22, 1996, at 6-7 and 11 12.
Return to note 75 referrer
- Note 76
Namitabar v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 42 (T.D.), at 47;
Fathi-Rad, Farideh v. S.S.C. (F.C.T.D., no. IMM-2438-93), McGillis, April 13, 1994, at 4-5. Compare
Hazarat, Ghulam v. S.S.C. (F.C.T.D., no. IMM-5496-93), MacKay, November 25, 1994, at 3-4. See the discussion of “Restrictions upon Women” in section 9.3.8.1 of Chapter 9. In
S.S.C. v. Namitabar, Parisa (F.C.A., no. A-709-93), Décary, Hugessen, Desjardins, October 28, 1996, the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so." See also
Rabbani, Farideh v. M.C.I. (F.C.T.D., no. IMM-2032-96), McGillis, June 3, 1997, at 2.
In two decisions dealing with a Turkish law banning the wearing of headscarves in government places or buildings, the Court distinguished both
Namitabar (F.C.T.D.),
supra, and
Fathi-Rad, supra, as cases dealing with Iranian women who were obliged by Iranian law to wear the Chador:
Kaya, Nurcan v. M.C.I. (F.C., no. IMM-5565-03), Harrington, January 14, 2004; 2004 FC 45, at paragraph 18;
Aykut, Ibrahim v. M.C.I. (F.C., no. IMM-5310-02), Gauthier, March 26, 2004; 2004 FC 466, at paragraph 40. In
Daghmash, Mohamed Hussein Moustapha v. M.C.I. (F.C.T.D., no. IMM-4302-97), Lutfy, June 19, 1998, the Court referred to the punishment of lashing and found no reviewable error with the tribunal’s finding that while abhorrent to Canadian sensibilities, one cannot make the sweeping finding that corporal punishment is automatically persecutory. This case should be read with caution in light of the statement by the Supreme Court of Canada in R. v. Smith, [1987] 1 S.C.R. 1045 that: “…some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment, such as the lash, irrespective of the number of lashes imposed…”
Return to note 76 referrer
- Note 77
Maarouf v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 723 (T.D.), at 738. See also
Abdel-Khalik, Fadya Mahmoud v. M.E.I. (F.C.T.D., no. IMM-883-93), Reed, January 31, 1994. Reported:
Abdel-Khalik v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 262 (F.C.T.D), at 263. But see
Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996, where denial of a right to return was found not to be persecutory when related to a law of general application.
Return to note 77 referrer
- Note 78
Arafa, Mohammed v. M.E.I. (F.C.T.D., no. A-663-92), Gibson, November 3, 1993, at 4-5. As to the possibility that harsh policies on the granting of citizenship, or limitations imposed upon permanent residents, might constitute persecution, see
Falberg, Victor v. M.C.I. (F.C.T.D., no. IMM-328-94), Richard, April 19, 1995, at 4.
Return to note 78 referrer
- Note 79
Cheung, supra, footnote 5, at 323; Chan (F.C.A.),
supra, footnote 60, at 688, per Heald J.A.;
Lai, supra, footnote 67, at 3.
Return to note 79 referrer
- Note 80
Lin, Qu Liang v. M.E.I. (F.C.A., no. 93-A-142), Rouleau, July 20, 1993. Reported:
Lin v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 208 (F.C.T.D.) , at 211. In
Horvath, Laszlo v. M.C.I. (F.C., no. IMM-4326-10), Mandamin, November 23, 2011; 2011 FC 1350, the Court noted that the failure to analyze the limitation on the applicant’s ability to earn a livelihood constitutes a reviewable error.
Return to note 80 referrer
- Note 81
Xie, Sheng v. M.E.I. (F.C.T.D., no. A-1573-92), Rothstein, March 3, 1994, at 5-6. Similarly, in
Soto, Marie Marcelina Troncoso v. M.C.I. (F.C.T.D., no. IMM-3734-01), Tremblay-Lamer, July 10, 2002; 2002 FCT 768, the Court held that it is not acceptable to suggest that a visually impaired person, who is trained to use a guide dog, should not bring her guide dog to work in order to find employment.
Return to note 81 referrer
- Note 82
He, Shao Mei v. M.E.I. (F.C.T.D., no. IMM-3024-93), Simpson, June 1, 1994. Reported:
He v. Canada (Minister of Employment and Immigration) (1994), 25 Imm. L.R. (2d) 128 (F.C.T.D.). In contrast, see Vaamonde Wulff, Monica Maria v. M.C.I. (F.C., no. IMM-4292-05), Rouleau, June 9, 2006; 2006 FC 725, at paragraph 23, where the Court held that the claimant’s argument “that she would not be able to resume her teaching job is not sufficient to say that she is unemployable, given her training and work history [in a number of other jobs]”. Also see El Assadi, supra footnote 48 where the Court found that although the claimant could not work as a mechanical engineer in Lebanon, he did not demonstrate that he could not work in other fields. The Court stated “…persecution does not result from the ability to work in the field of one’s choosing. Rather, it flows from one’s inability to work at all…” [NOTE: The Court likely meant “inability, rather than “ability” in the first sentence].
Return to note 82 referrer
- Note 83
Garcia Luzbet, Yunetsy v. M.C.I. (F.C., no. IMM-57-11), Harrington, July 22, 2011; 2011 FC 923.
Return to note 83 referrer
- Note 84
Ramirez, Rosa Etelvina v. S.G.C. (F.C.T.D., no. IMM-1192-94), Rouleau, December 9, 1994, at 5. See also Chen, supra, footnote 9, at 4.
Return to note 84 referrer
- Note 85
Lerer, Iakov v. M.C.I. (F.C.T.D., no. IMM-7438-93), Cullen, January 5, 1995, at 5-6.
Return to note 85 referrer
- Note 86
Sinnathamby, Jayasrikanthan v. M.E.I. (F.C.T.D., no. IMM-179-93), Noël, November 2, 1993. Reported:
Sinnathamby v. Canada (Minister of Employment and Immigration) (1993), 23 Imm. L.R. (2d) 32 (F.C.T.D.) at 36. See also:
Mortera, Senando Layson v. M.E.I. (F.C.T.D., no. A-1084-92), McKeown, December 8, 1993;
Vasudevan, Prakash v. S.S.C. (F.C.T.D., no. IMM-81-94), Gibson, July 11, 1994;
Sivapoosam, Sivakumar v. M.C.I. (F.C.T.D., no. IMM-2674-95), Reed, June 19, 1996, at 4-5; and
Srithar, Suntharalingam v. M.C.I. (F.C.T.D., no. IMM-158-97), Tremblay-Lamer, October 10, 1997, at 4-5 (extortion by corrupt military personnel). In
Nyota, Katy v. M.C.I. (F.C., no. IMM-4289-10), O’Keefe, June 13, 2011; 2011 FC 675, the Court reiterated that extortion may amount to persecution and it is an error to state that it can never form the basis of a refugee claim.
Return to note 86 referrer
- Note 87
Douillard, Kerlange v. M.C.I. (F.C. no. IMM-4443-18), LeBlanc, March 29, 2019; 2019 FC 390. In this case, the claimant pleaded that her child, as an American citizen, would be separated from her if his claim were denied. The Court held that family reunification by itself is not a determinative factor where the criteria of sections 96 or 97 are not met.
Return to note 87 referrer
- Note 88
Cheung, supra, footnote 5, at 325.
Return to note 88 referrer
- Note 89
Modeste, Sherisa Shermika Patricia v. M.C.I. (F.C., no. IMM-9659-12), Russell, December 18, 2013; 2013 FC 1262.
Return to note 89 referrer
- Note 90
Ali, Shaysta-Ameer v. M.C.I. (F.C.T.D., no. IMM-3404-95), McKeown, October 30, 1996. Reported:
Ali v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 34 (F.C.T.D). The Court distinguished
Ali in
Gonsalves, Stanley Bernard v. M.C.I. (F.C., no. IMM-3827-10), Zinn, June 7, 2011; 2011 FC 648 when it found that the RPD did not err in finding that the applicant children did not face persecution even though they had to leave school due to discriminatory treatment. While
Ali stands for the proposition that where the only way a child can avoid persecution is to cease attending school, asking the child to do so violates his or her right to an education and the child should therefore be found to be a refugee, in this case, the RPD reasonably found that the treatment which forced the applicant children to leave school was discrimination not persecution.
Return to note 90 referrer
- Note 91
Thathaal, Sabir Hussain v. S.S.C. (F.C.T.D., no. A-1644-92), McKeown, December 15, 1993, at 2. Appeal to the Federal Court of Appeal dismissed April 16, 1996 (F.C.A., no. A-724-93).
Return to note 91 referrer
- Note 92
Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60 (T.D.), at 65.
Return to note 92 referrer
- Note 93
Frid, Mickael v. M.C.I. (F.C.T.D., no. IMM-6694-93), Rothstein, December 15, 1994, at 3.
Return to note 93 referrer
- Note 94
Zheng, Jian Hua v. M.C.I. (F.C., no. IMM-3781-10), Scott, February 15, 2011; 2011 FC 181.
Return to note 94 referrer
- Note 95
Igumnov, Sergei v. M.C.I. (F.C.T.D., no. IMM-6993-93), Rouleau, December 16, 1994, at 3-5. See also
Gutkovski, supra, footnote 19, at 2 and 4.
Return to note 95 referrer
- Note 96
Kassatkine, Serguei v. M.C.I. (F.C.T.D., no. IMM-978-95), Muldoon, August 20, 1996, at 4. And see
Kazkan, Shahrokh Saeedi v. M.C.I. (F.C.T.D., no. IMM-1313-96), Rothstein, March 20, 1997.
Similarly, in
BC v. M.C.I. (F.C., no. IMM-4840-02), Gibson, July 4, 2003; 2003 FC 826, the Court held that the denial to the claimant of the opportunity to secure re-employment as a high school teacher, in the absence of her abandonment of a particular religious practice, could amount to serious discrimination amounting to persecution. However, in two decisions, the Federal Court agreed with the RPD’s finding that the Turkish female claimant’s loss of employment in a public institution for wearing a headscarf did not constitute persecution. In
Kaya, supra, footnote 76, at paragraph 13, the Court stated that “[l]aws must be considered in their social context.” In this case, the Court found that the Turkish law banning the wearing of any religious dress in government places or buildings was made in furtherance of the government’s secular policies. A similar result was reached in
Aykut, supra, footnote 76. See also the discussion under “Restrictions upon Women” in Chapter 9, section 9.3.8.1
Return to note 96 referrer
- Note 97
Chen, Shun Guan v. M.C.I. (F.C.T.D., no. IMM-1433-96), Lutfy, January 31, 1997, at 2-3, citing the UNHCR
Handbook, paragraph 72.
Return to note 97 referrer
- Note 98
Lin, supra, footnote 80, at 211.
Return to note 98 referrer
- Note 99
Abouhalima, Sherif v. M.C.I. (F.C.T.D., no. IMM-835-97), Gibson, January 30, 1998. However, in
Murugamoorthy, Rajarani v. M.C.I. (F.C., no. IMM-4706-02), O’Reilly, September 29, 2003; 2003 FC 1114, at paragraph 6, the Court stated that whether short-term arrests for security reasons can be considered persecution depends upon the claimant’s particular circumstances, including factors such as the claimant’s age and prior experiences, relying upon
Velluppillai, Selvaratnam v. M.C.I. (F.C.T.D., no. IMM-2043-99), Gibson, March 9, 2000. In
Kularatnam, Suhitha v. M.C.I. (F.C., no. IMM-3530-03), Phelan, August 12, 2004; 2004 FC 1122, at paragraph 11, the Court set out other factors that could also be relevant, namely, the nature of the location and treatment during detention, and the manner of release from detention.
In
Abu El Hof, Nimber v. M.C.I. (F.C., no. IMM-1494-05), von Finckenstein, November 8, 2005; 2005 FC 1515, the Court upheld as reasonable the RPD’s conclusion that the claimant’s two short detentions and interrogation, although humiliating, could be viewed as necessary security measures, given the heightened security in Israel at the time. In Kuzu, Meral v. M.C.I. (F.C. no. IMM-496-18), Lafrenière, September 14, 2018; 2018 FC 917, the Court came to a similar conclusion concerning two periods of detention for a total of eight hours. The Court noted that at no point did the police use violence towards the claimant nor interfere with his basic human rights. See also chapter 9, section 9.3.3.
Return to note 99 referrer
- Note 100
M.C.I. v. Lin, Chen (F.C.A., no. A-3-01) Desjardins, Décary, Sexton, October 18, 2001. See also
Zhu, Long Wei v. M.C.I. (F.C.T.D., no. IMM-2746-00) Muldoon, August 13, 2001.
Return to note 100 referrer
- Note 101
In
Zheng, Jin Dong v. M.C.I. (F.C.T.D., no. IMM-2415-01), Martineau, April 19, 2002; 2002 FCT 448, the basis for this argument was that minors could not consent to being trafficked. The Court upheld the CRDD’s decision, where the panel assessed the issue of consent with regard to this particular minor claimant, relying upon
Xiao, Mei Feng v. M.C.I., (F.C.T.D., no. IMM- 953-00), Muldoon, March 16, 2002; 2001 FCT 195.
Return to note 101 referrer
- Note 102
Although the Court stated that the issue was not determinative in this case, in
M.C.I. v. Hamdan, Amneh (F.C., no. IMM-7723-04), Gauthier, March 6, 2006; 2006 FC 290, at paragraphs 22-23, the Court commented that the
Universal Declaration of Human Rights “is only a declaratory instrument” and that article 16 “deals with the right not to have limitations based on race, nationality or religion imposed on one’s right to marry and to found a family”. The Court agreed with the applicant Minister that it did not “per se create a positive obligation on a State to set up sponsorship processes or to adopt legislation that facilitates the entry of a foreign spouse on its territory.”
Return to note 102 referrer
- Note 103
Marshall, Matin v. M.C.I. (F.C., no. IMM-3638-07), O’Keefe, August 14, 2008; 2008 FC 946.
Return to note 103 referrer
- Note 104
Treskiba, Anatoli Benilov v. M.C.I. (F.C., no. IMM-1999-08), Pinard, January 13, 2009; 2009 FC 15.
Return to note 104 referrer
- Note 105
Woldeghebrial, Sela Tesfa v. M.C.I. (F.C., no. IMM-3514-10), O’Reilly, February 4, 2011; 2011 FC 126.
Return to note 105 referrer