- Note 1
Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.) at 404.
Return to note 1 referrer
- Note 2
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 723.
Return to note 2 referrer
- Note 3
M.E.I. v. Paszkowska, Malgorzata (F.C.A., no. A-724-90), Hugessen, MacGuigan, Décary, April 16, 1991. Reported: Canada (Minister of Employment and Immigration) v. Paszkowska (1991), 13 Imm. L.R. (2d) 262 (F.C.A.).
Return to note 3 referrer
- Note 4
Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.), at 258.
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- Note 5
Fernandopulle, Eomalv.
M.C.I. (F.C., no. IMM-3069-03), Campbell, March 18, 2004, 2004 FC 415, at para. 10. In this case, Mr. Justice Campbell rejected the argument that there is a rebuttable presumption under Canadian law that a person who has been the victim of persecution in the past has a well-founded fear of persecution. The ruling was confirmed by the Federal Court of Appeal in Fernandopulle, Eomalv.
M.C.I. (F.C.A., no. A-217-04), Sharlow, Nadon, Malone, March 8, 2005, 2005 FCA 91.
Return to note 5 referrer
- Note 6
M.E.I. v. Satiacum, Robert (F.C.A., no. A-554-87), Urie, Mahoney, MacGuigan, June 16, 1989. Reported: Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.).
Return to note 6 referrer
- Note 7
Natynczyk v. Canada (Minister of Employment and Immigration), (F.C., no. IMM-2025-03), O’Keefe, June 25, 2004, at para. 71.
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- Note 8
Lai, Kai Ming v. M.E.I. (F.C.A., no. A-792-88), Marceau, Stone, Desjardins, September 18, 1989. Reported: Lai v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.).
Return to note 8 referrer
- Note 9
Awadh, Ahmed v. M.C.I. (F.C., no. IMM-4221-13), Noël, May 29, 2014; 2014 FC 521.
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- Note 10
Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.), at 682. For a case where the Court does an in-depth analysis of the RPD’s language and finds that it incorrectly required the claimant to prove persecution on a balance of probabilities, see
Ramanathy, Murugesakumar v. M.C.I. (F.C., no. IMM-1241-13), Mosley, May 27, 2014; 2014 FC 511.
Return to note 10 referrer
- Note 11
Seifu, Eshetu v. M.E.I. (F.C.A., no. A-277-82), Pratte, Le Dain, Hyde, January 12, 1983.
Return to note 11 referrer
- Note 12
Adjei., supra, footnote 10 at 683.
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- Note 13
Li, Yi Mei v. M.C.I. (F.C.A., no. A-31-04), Rothstein, Noël, Malone, January 5, 2005; 2005 FCA 1.
Return to note 13 referrer
- Note 14
Adjei, supra, footnote 10 at 682-3.
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- Note 15
Yeboah, Christian v. M.E.I. (F.C.T.D., no. 92-A-7049), Teitelbaum, July 16, 1993 at para. 53. Reported: Yeboah v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 81 (F.C.T.D.). The Court in
Li,
supra, footnote 13, considered that the word “would” implies a probability test.
Return to note 15 referrer
- Note 16
Thanapalasingam, Kengeswaran v. M.C.I. (F.C., no. IMM-10063-12), Phelan, July 29, 2013; 2013 FC 830, at para. 19.
Return to note 16 referrer
- Note 17
Ponniah, Manoharan v. M.E.I. (F.C.A., no. A-345-89), Heald, Hugessen, Desjardins, May 16, 1991. Reported: Ponniah v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 241 (F.C.A.), at 245.
Return to note 17 referrer
- Note 18
Ioda, Routa v. M.E.I. (F.C.T.D., no. 92-A-6604), Dubé, June 18, 1993. Reported: Ioda v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 294 (F.C.T.D.).
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- Note 19
Rajagopal, Gnanathas v. M.C.I. (F.C., no. IMM-1350-11), Hughes, November 10, 2011; 2011 FC 1277, at para. 11.
Return to note 19 referrer
- Note 20
Sivaraththinam, Mayooran v. M.C.I. (F.C., no. IMM-13174-12), Annis, February 20, 2014; 2014 FC 162.
Return to note 20 referrer
- Note 21
See
Gopalarasa, Raveendran v. M.C.I. (F.C., no. IMM-4617-13), Diner, November 26, 2014; 2014 FC 1138, at para. 27. Also see Conka, Emil v. M.C.I. (F.C. no. IMM-4601-17), Strickland, May 23, 2018; 2018 FC 532 where the Court found that the PRRA officer had applied an incorrect or elevated test by requiring the applicant to demonstrate a sustained and systemic denial of his core human rights that would “prevent his basic functioning in Slovakian society”.
Return to note 21 referrer
- Note 22
Chichmanov, Yordan Anguelov v. M.E.I. (F.C.A., no. A-243-91), Isaac, Heald, Létourneau, September 3, 1992.
Return to note 22 referrer
- Note 23
Petrescu, Mihai v. S.G.C. (F.C.T.D., no. A-980-92), Tremblay-Lamer, October 26, 1993, at para. 20.
Return to note 23 referrer
- Note 24
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.), at 134.
Return to note 24 referrer
- Note 25
In
Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, at 664 (para. 134), Major, J. stated: “The objective component of the test requires an examination of the ‘objective situation’ and the relevant factors include the conditions in the applicant’s country of origin and the laws in that country together with the manner in which they are applied.”
Return to note 25 referrer
- Note 26
Kamana, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999.
Return to note 26 referrer
- Note 27
Tabet-Zatla, Mohamed v.
M.C.I. (F.C.T.D., no. IMM-6291-98), Tremblay-Lamer, November 2, 1999.
Return to note 27 referrer
- Note 28
Tabet-Zatla, ibid., was followed in
Fernando v.M.C.I. (F.C.T.D., no. IMM-4601-00), Nadon, July 5, 2001 and
Anandasivam, Vallipuram v. M.C.I. (F.C.T.D., no. IMM-4748-00), Lemieux, October 10, 2001. Similarly, the same principle was applied in Akacha, Kamel v. M.C.I. (F.C., no. IMM-548-03), Pinard, December 19, 2003; 2003 FC 1489 at para. 5; and
Herrera, William Alexander Cruz v. M.C.I. (F.C., IMM-782-07), Beaudry, October 1, 2007, at para. 23, which followed
Kamana.
Return to note 28 referrer
- Note 29
Maqdassy, Joyce Ruth v. M.C.I. (F.C.T.D., no. IMM-2992-00), Tremblay-Lamer, February 19, 2002; 2002 FCT 182.
Return to note 29 referrer
- Note 30
Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.), at 632.
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- Note 31
Maqdassy, supra, footnote 29.
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- Note 32
Canada (Attorney General) v. Ward, supra, footnote 2.
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- Note 33
See
Ramos Contreras, Manuel v. M.C.I. (F.C., no. IMM-4188-08), Heneghan, May 20, 2009; 2009 FC 525, where the Court noted that documentary evidence cannot, by itself, establish the subjective element of persecution. In
Mailvakanam, Subhas v. M.C.I. (F.C., no. IMM-3155-11), Scott, December 6, 2011; 2011 FC 1422, the Court confirmed that the RPD has no obligation to conduct an assessment of objective risk after concluding that a claimant lacks subjective fear.
Return to note 33 referrer
- Note 34
Geron, Fernando Bilog v. M.C.I. (F.C.T.D., no. IMM-4951-01), Blanchard, November 22, 2002; 2002 FCT 1204.
Return to note 34 referrer
- Note 35
Nazir, Qaiser Mahmood v. M.C.I. (F.C., no. IMM-3857-04), Harrington, February 3, 2005; 2005 FC 168 at para. 4.
Return to note 35 referrer
- Note 36
Yusuf, supra, footnote 30.
Return to note 36 referrer
- Note 37
Canada(Minister of Citizenship and Immigration) v. Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008; 2008 FC 747.
Return to note 37 referrer
- Note 38
In
Sandoval Mares, Martha v. M.C.I. (F.C., no. IMM-2716-12), Gagné, March 25, 2013; 2013 FC 297, the Court noted that with regard to the children’s claim, the RPD could reasonably rely on the testimony of the principal applicant acting as the children’s designated representative in assessing the children’s subjective fear. No risks were raised as being faced by the minor applicants separate from those faced by their mother.
Return to note 38 referrer
- Note 39
Owobowale, Lillian Naomi v. M.C.I. (F.C., no. IMM-2025-10), Zinn, November 16, 2010; 2010 FC 1150 was a case involving a mother and her three minor daughters whose claims were based on the minors’ fear of female genital mutilation at the hands of family members. The Board erred in unreasonably approaching the minors’ claims from the perspective of the mother. The life choices of the mother are not relevant in assessing the subjective fear of her children. The RPD also erred in not assessing the objective basis from the perspective of the minor applicants.
Return to note 39 referrer
- Note 40
Shanmugarajah, Appiah v. M.E.I. (F.C.A., no. A-609-91), Stone, MacGuigan, Henry, June 22, 1992. This principle has been applied in many cases since. See for example
Ramirez-Osorio, Alexander v. M.C.I. (F.C., no. IMM-7418-12), Shore, May 3, 2013; 2013 FC 461.
Return to note 40 referrer
- Note 41
Parada, Felix Balmore v. M.C.I. (F.C.T.D., no. A-938-92), Cullen, March 6, 1995, at para. 16.
Return to note 41 referrer
- Note 42
Assadi, Nasser Eddin v. M.C.I. (F.C.T.D., no. IMM-2683-96), Teitelbaum, March 25, 1997. at para. 14.
Return to note 42 referrer
- Note 43
Parmar, Satnam Singh v. M.C.I. (F.C.T.D., no. IMM-838-97), Joyal, January 21, 1998;
Chudinov, Nickolai v. M.C.I. (F.C.T.D., no. IMM-2419-97), Joyal, August 14, 1998; and
Maximilok, Yuri v. M.C.I. (F.C.T.D., no. IMM-1861-97), Joyal, August 14, 1998.
Return to note 43 referrer
- Note 44
Dirie, Abdulle Milgo v. M.C.I. (F.C.T.D., no. IMM-5428-97), Cullen, October 6, 1998.
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- Note 45
Hatami, Arezo v. M.C.I. (F.C.T.D., no. IMM-2418-98), Lemieux, March 23, 2000, at para. 25.
Return to note 45 referrer
- Note 46
Herrera, supra, footnote 28, at para. 23.
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- Note 47
Ahoua, Wadjams Jean-Marie v. M.C.I. (F.C., no. IMM-1757-07), Blais, November 27, 2007; 2007 FC 1239, at para. 16.
Return to note 47 referrer
- Note 48
Hidalgo Tranquino, Claudia Isabel v. M.C.I. (F.C., no. IMM-86-10), Mactavish, July 29, 2010; 2010 FC 793, at para. 8.
Return to note 48 referrer
- Note 49
Gomez v. Canada (Minister of Citizenship and Immigration) (F.C., IMM-1412-10), Bédard, October 22, 2010, at para. 34.
Return to note 49 referrer
- Note 50
Kunin, Aleksandr v. M.C.I. (F.C., no. IMM-5225-09), O’Keefe, November 4, 2010; 2010 FC 1091, at para. 20. Also see Louis, Benito v. M.C.I. (F.C. no. IMM-3068-18), Bell, March 28, 2019; 2019 FC 355 where the Court rejected the argument that the RPD erred by importing a subjective fear component into its section 97 analysis. The Court noted that the RPD never used the term “subjective fear” and “although the RPD’s analysis is similar to that which would be employed by a panel considering a Convention refugee’s claim of subjective fear, it used this information in its assessment of Mr. Louis’ credibility...”
Return to note 50 referrer
- Note 51
See M.C.I. v. Sellan, Theyaseelan (F.C.A. no. A-116-08), Desjardins, Nadon, Blais, December 2, 2008; 2008 FCA 381, where the Court, in answering a certified question, stated: “… where the Board makes a general finding that the claimant lacks credibility, that determination is sufficient to dispose of the claim unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim.”
Return to note 51 referrer
- Note 52
Aslam, Muhammad v. M.C.I. (F.C., no. IMM-3264-05), Shore, February 16, 2006; 2006 FC 189, at para. 28.
Return to note 52 referrer
- Note 53
It is not unusual for claimants to engage in more than one kind of conduct that may be seen to undermine their subjective fear. For example, in
Rivera, Jesus Vargas v. M.C.I. (F.C., no. IMM-5826-02), Beaudry, November 5, 2003; 2003 FC 1292, the claimant went back to work for eight months for the same employer who had had him beaten; secondly, after he left Mexico for the U.S., he made no claim during the year he lived there; and finally, he returned to his country to take a flight to Canada.
Return to note 53 referrer
- Note 54
Wong, Siu Ying v. M.E.I. (F.C.A., no. A-804-90), Heald, Marceau, Linden, April 8, 1992. Reported: Wong v. Canada (Minister of Employment and Immigration) (1992), 141 N.R. 236 (F.C.A.) at para. 5.
Return to note 54 referrer
- Note 55
Castillejos, Jaoquin Torres v. M.C.I. (F.C.T.D., no. IMM-1950-94), Cullen, December 20, 1994, at para. 11 and
Akram, Ejaz v. M.C.I. (F.C., no. IMM-3106-03), Pinard, July 2, 2004; 2004 FC 927, at para. 5.
Return to note 55 referrer
- Note 56
In
Bibby-Jacobs, Shannon Shenika v. M.C.I. (F.C., no. IMM-2508-12), Martineau, October 9, 2012; 2012 FC 1176, the Court cautions against the misuse of the concept of subjective fear in sexual harassment cases. The claimant was a young woman who had been victimized by a sexual predator, a prominent businessman and her employer. The RPD concluded that she did not have a subjective fear stating that “if the risk were of a level of severity that could be described as persecution, the claimant would have left her job.” The Court noted that this particular use of the concept of subjective fear by the RPD is hardly applicable in a sexual harassment case.
Return to note 56 referrer
- Note 57
Hue, Marcel Simon Chang Tak v. M.E.I. (F.C.A., no. A-196-87), Marceau, Teitelbaum, Walsh, March 8, 1988;
Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988 and
Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugessen, Desjardins, Létourneau, March 17, 1993. Reported: Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). In
Andrade Ramos, Norberto v. M.C.I. (F.C. no., IMM-1867-10), Russell, January 10, 2011; 2011 FC 15 at para. 28, the Court reiterated this principle as follows: “[…] the RPD’s conclusion that the Applicants’ failure to claim asylum at the earliest opportunity (that is, in the U.S.) indicates their lack of subjective fear is contrary to Federal Court of Appeal jurisprudence, which says that a board may consider this factor in assessing subjective fear, provided it is not the only evidence upon which the board relies. See
Hue […]”
Return to note 57 referrer
- Note 58
Huerta., supra, footnote 57 at 227.
Return to note 58 referrer
- Note 59
Cruz v. Canada (Minister of Employment and Immigration) (F.C.T.D., no. IMM-3848-93) Simpson, June 16, 1994, at para.10.
Return to note 59 referrer
- Note 60
Castillejos, supra, at footnote 55, where the Court stated, at para. 11, that delay points to a lack of subjective fear and does not relate to the objective basis of the claim.
Return to note 60 referrer
- Note 61
Velez, Liliana v. M.C.I. (F.C., no. IMM-5660-09), Crampton, September 15, 2010; 2010 FC 923, at para. 28. The converse of the same principle was expressed in
Abawaji, Abdulwahid Haji Hassen
v. M.C.I. (F.C., no. IMM-6276-05), Mosley, September 6, 2006; 2006 FC 1065; at para. 16:“Delay in making a claim for refugee protection should not be fatal to the claim where it is supported by a reasonable explanation.”
Return to note 61 referrer
- Note 62
For example, in
Mubengaie Malaba, Gea v.M.C.I. (F.C., no. IMM-3814-12), Martineau, January 28, 2013; 2013 FC 84, at para. 25, the Court noted that “a distinction must be made between a behaviour that is inconsistent with a well-founded fear of persecution (which may be presumed from a lengthy delay in making a claim) and whether the applicant’s account of persecution is credible or not.”
Return to note 62 referrer
- Note 63
Beltran, Luis Fernando Berrio v. M.C.I. (F.C.T.D., no. IMM-829-96), Dubé, October 29, 1996.
Return to note 63 referrer
- Note 64
Martinez Requena, Ericka Marlene v. M.C.I. (F.C., no. IMM-4725-06), Dawson, September 27, 2007; 2007 FC 968.
Return to note 64 referrer
- Note 65
In
Salguero, Erbin Salomon Rosales v. M.C.I. (F.C., no. IMM-4402-04), Mactavish, May 18, 2005; 2005 FC 716, the Court distinguishes the claimants’ 16 year residence in the U.S. from the “short stays” en route to Canada referred to in para. 37 of
Mendez, Alberto Luis Calderon v. (F.C., no. IMM-1837-04), Teitelbaum, January 27, 2005; 2005 FC 75.
Return to note 65 referrer
- Note 66
Claimants often spend short periods of time in transit through countries where they do not seek protection. For example, in
Packinathan, Lindan Lorance v. M.C.I. (F.C., no. IMM-6640-09), Snider, August 23, 2010; 2010 FC 834, the Board considered that the claimant’s failure to make a claim during a two-hour stop-over in Switzerland indicated a lack of subjective fear. The Board’s conclusion was held to be unreasonable, as the claimant was at all times in transit to Canada.
Return to note 66 referrer
- Note 67
John, Shontel Dion v. M.C.I. (F.C., no. IMM-1683-10), Bédard, December 14, 2010; 2010 FC 1283 at para. 23.
Return to note 67 referrer
- Note 68
El-Naem, Faisalv.
M.C.I. (F.C.T.D., no. IMM-1723-96), Gibson, February 17, 1997. Reported:
El-Naem v. Canada (Minister of Citizenship and Immigration) (1997), 37 Imm. L.R. (2d) 304 (F.C.T.D.).
Return to note 68 referrer
- Note 69
Ribeiro, Wender Magno v. M.C.I. (F.C., no. IMM-8843-04), Dawson, October 11, 2005; 2005 FC 1363, at para. 11.
Return to note 69 referrer
- Note 70
Diluna, Roselene Edyr Soares v. M.E.I. (F.C.T.D., no. IMM-3201-94), Gibson, March 14, 1995. Reported: Diluna v. Canada (Minister of Employment and Immigration) (1995), 29 Imm. L.R. (2d) 156 (F.C.T.D.), at 162.
Return to note 70 referrer
- Note 71
Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003; 2003 FC 1324, at para. 19.
Return to note 71 referrer
- Note 72
Sabapathy, Thevi v. M.C.I. (F.C.T.D., no. IMM-1507-96), Campbell, March 27, 1997.
Return to note 72 referrer
- Note 73
Rahim, Ziany v.
M.C.I. (F.C., no. IMM-2729-04), Shore, January 18, 2005, 2005 FC 18 at para. 11.
Return to note 73 referrer
- Note 74
Zuniga, Alexis Ramon Garciav. S.C.C. (F.C.T.D., no. IMM-118-94), Teitelbaum, July 4, 1994 at para. 49 – 50. See also
Singh, Sebastian Swatandra v. M.C.I. (F.C.T.D., no. IMM-3840-97), Nadon, December 7, 1998 where the Court upheld the negative finding of the CRDD based on the view that the male claimant had not made a serious attempt to leave Fiji between 1987 and 1995, conduct which undermined his subjective fear of persecution.
Return to note 74 referrer
- Note 75
As noted in
Bibby-Jacobs, supra, footnote 56,it was not appropriate for the RPD to expect that “if the risk were of a level of severity that could be described as persecution, the claimant [a young woman subject to sexual harassment at the hands of her powerful employer] would have left her job.” In the same vein is the case of a claimant who was subject to domestic abuse but had returned to her husband after several earlier trips to Canada. See
Abdi Ahmed, Ilham v. M.C.I. (F.C., no. IMM-3178-12), O’Reilly, December 18, 2012; 2012 FC 1494, where the Court found that the RPD failed to take into account the claimant’s personal circumstances and apply the IRB’s Guidelines on Women Refugee Claimants Fearing Gender Related Persecution (Guideline 4) when evaluating her testimony regarding why she stayed with and returned to her husband.
Return to note 75 referrer
- Note 76
Gebremichael, Addis v. M.C.I. (F.C., no. IMM-2670-05), Russell, May 1, 2006; 2006 FC 547, at para. 44.
Return to note 76 referrer
- Note 77
Voyvodov, Bogdan Atanassov v. M.C.I. (F.C.T.D., no. IMM-5601-98), Lutfy, September 13, 1999, at para. 10.
Return to note 77 referrer
- Note 78
Shah, Mahmood Ali v. M.C.I. (F.C., no. IMM-4425-02), Blanchard, September 30, 2003; 2003 FC 1121, at para. 23.
Return to note 78 referrer
- Note 79
Ibrahimov, Fikrat v. M.C.I. (F.C., no. IMM-4258-02), Heneghan, October 10, 2003; 2003 FC 1185., at para. 19. This reasoning was more recently followed in
Ramirez Rodas, Carlos v. M.C.I. (F.C., no. IMM-6560-13), Zinn, February 27, 2015; 2015 FC 250, at para. 31. A number of incidents over a period of a few months culminated in an event which convinced the claimants they had to leave.
Return to note 79 referrer
- Note 80
Molano Fonnoll, German Guillermo v. M.C.I. (F.C., no. IMM-2626-11), Scott, December 12, 2011; 2011 FC 1461.
Return to note 80 referrer
- Note 81
Menjivar, Carlos Othmar Navarrete v. M.C.I. (F.C., no. IMM-9660-04), Dawson, January 6, 2006; 2006 FC 11 at para. 33. For more recent cases supporting this principle see
Rodrigues, Gustavo Adolfo v. M.C.I. (F.C., no. IMM-2214-11), Pinard, January 6, 2011; 2012 FC 4, and
Ghotra, Balkar Singh v. M.C.I. (C.F., No. IMM-5472-15), Bell, October 19, 2016; 2016 CF 1161.
Return to note 81 referrer
- Note 82
In
Mendez,
supra, footnote 65, at para. 34–38, Justice Teitelbaum held that the Board had erred in law when it wrote that the case law was clear that persons claiming to fear persecution were required to claim in the first Convention country in which they arrived. The Court also found that the Board has not fulfilled its requirement to carefully consider the claimant's testimony.
Return to note 82 referrer
- Note 83
For example, in
Enongene, Joseph Asue v. M.C.I.(F.C. no. IMM-106-18), Favel, September 24, 2018; 2018 FC 927 at para. 16 the Court quashed a decision because the RPD had disregarded the claimant’s explanation for delaying six months to claim asylum in the United States. His explanation was that he was following the advice of people by trying to gather documents before making the claim. Similarly, in Yasun, Guler v. M.C.I. (F.C. no. IMM-3669-18), Grammond, March 20, 2019; 2019 FC 342, the Court criticized the negative inference drawn from the claimant’s failure to claim while in the United States for two months. Her explanation was a member of her family was in Canada. Similarly, in Gbemudu, Richard Obiajulu v. M.C.I. (F.C. no. IMM-4320-17), Russell, April 26, 2018; 2018 FC 451 the Court quashed a decision in which the RAD had drew a negative inference due to the claimant’s failure to claim protection while living in the U.K.. The Court noted that the claimant feared persecution due to engaging in same-sex relationships in the past and then being unexpectedly outed after arriving in Canada. The RAD’s analysis was based on speculation that any bisexual person from Nigeria would claim protection at the first opportunity irrespective of whether they have been outed.
Return to note 83 referrer
- Note 84
Salomon, Jonathan Castro v. M.C.I. (F.C., no. IMM-1120-17), Locke, October 6, 2017; 2017 FC 888
Return to note 84 referrer
- Note 85
Pulido Ruiz, Cristian Danilo v. M.C.I. (F.C., no. IMM-2819-11), Scott, February 24, 2012; 2012 FC 258. See also
Manage, Pierrette v. M.C.I. (F.C., no. IMM-4966-13), Kane, April 17, 2014; 2014 FC 374, where the RPD had found that the applicants’ failure to seek asylum in Kenya and Germany, while in transit to Canada, demonstrated a lack of subjective fear. The Court held that this finding was not reasonable based on the applicants’ circumstances and youth. The RPD unreasonably expected the applicants to appreciate that their failure to seek asylum in the very first country they landed would jeopardize their claim and undermine their subjective fear of persecution.
Return to note 85 referrer
- Note 86
In
Ilie, Lucian Ioan v. M.C.I. (F.C.T.D., no. IMM-462-94), MacKay, November 22, 1994 the Court stated that the CRDD was entitled to take notice of the status of countries that are signatories to the Convention and may also assume that such countries will meet their obligation to implement the Convention within their own territory, unless evidence to the contrary is adduced. But in
Tung, Zhang Shu v. M.E.I. (F.C.A., no. A-220-90), Heald, Stone, Linden, March 21, 1991, where the claimant visited four countries en route to Canada, the Court pointed to the lack of evidence that any of the countries in question had ratified the Convention or Protocol. Although the Board was authorized to take notice of any facts that could be judicially noticed, the Board was wrong to “speculate” that refugee protection was available in those countries.
Return to note 86 referrer
- Note 87
Memarpour, Mahdiv.M.C.I. (F.C.T.D., no. IMM-3113-94), Simpson, May 25, 1995, at para. 23-24.
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- Note 88
Mendez, supra, footnote 65, at para. 37. In
Nel, Charl Willem v. M.C.I. (F.C., no. IMM-4601-13), O’Keefe, September 4, 2014; 2014 FC 842, the claimants spent approximately 7 hours in an airport in the UK while waiting for a flight to Canada. The Court found that the RPD erred in finding a lack of subjective fear based on their short layover. The Court noted that it is unsurprising that someone who actually fears persecution would want to go to a country where their claim has the best chance of success, since the price of failure is a return to the persecution they fear.
Return to note 88 referrer
- Note 89
Packinathan, supra, footnote 66, at para. 7.
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- Note 90
In
Alekozai, Rafi v. M.C.I. (F.C., no. IMM-8260-13), Rennie, February 6, 2015; 2015 FC 158, the Court noted that reunification with family is a valid reason for not claiming refugee protection at the first opportunity. However, in
Gebetas, Ergun v. M.C.I. (F.C., no. IMM-11313-12), Shore, December 10, 2013; 2013 FC 1241, the Court held that the mere fact that an applicant has one relative in Canada is not a sufficient basis to overcome the fact that he or she did not claim refugee status in the United States as quickly as possible. And in
Ndambi, Guy v. M.C.I. (F.C., no. IMM-12682-12), Roy, January 31, 2014; 2014 FC 117, the Court held that there was ample evidence for the RPD to conclude that the applicant had no subjective fear. The applicant chose to leave more than two weeks after his visas for the United States and Belgium were issued, and he did not claim asylum when he arrived in the United States. His choice to come to Canada because his nephew is here was more of a conscious choice made for immigration purposes than a decision to seek refuge wherever possible.
Return to note 90 referrer
- Note 91
Perez, Franklin Antonio v. M.C. I. (F.C., no. IMM-4450-09), Boivin, March 30, 2010; 2010 FC 345 at para. 19.
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- Note 92
Idahosa, Musili Amoke v. M.C.I. (F.C. no. IMM-1124-18), Favel, March 29, 2019; 2019 FC 384 at para. 31.
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- Note 93
Bello, Salihou v. M.C.I. (F.C.T.D., no. IMM-1771-96), Pinard, April 11, 1997.
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- Note 94
Madoui, Nidhal Abderrahv.M.C.I. (F.C.T.D., no. IMM-660-96), Denault, October 25, 1996.
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- Note 95
In
Milian Pelaez, Rogelio v. M.C.I. (F.C., no. IMM-3611-11), de Montigny, March 2, 2012; 2012 FC 285, the Court held (at para. 14) that the RPD had wrongly held against the claimant his failure to claim asylum in the US without considering his explanation that his intention at the time was simply to temporarily flee Guatemala in order to be forgotten or his explanation that, unlike Canada, the United States refuses claims based on risk related to criminality “as was the case in Canada before section 97 was introduced in the Act”.
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- Note 96
Mekideche, Anouarv.
M.C.I. (F.C.T.D., no. IMM-2269-96), Wetston, December 9, 1996.
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- Note 97
Ilyas, Muhammad v. M.C.I. (F.C., no. IMM-5636-03), Russell, September 16, 2004; 2004 FC 1270.
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- Note 98
El-Naem,
supra, footnote 68.
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- Note 99
Liblizadeh, Hassanv.M.C.I. (F.C.T.D., no. IMM-5062-97), MacKay, July 8, 1998.
Return to note 99 referrer
- Note 100
Yoganathan, Kandasamy v. M.C.I. (F.C.T.D., no. IMM-3588-97), Gibson, April 20, 1998, at para. 8.
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- Note 101
Hue, supra, footnote 57.
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- Note 102
Shahpari, Khadijehv.M.C.I. (F.C.T.D., no. IMM-2327-97), Rothstein, April 3, 1998, at para.14.
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- Note 103
Geron, supra, footnote 34.
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- Note 104
Bains, Gurmukh Singh v. M.C.I. (F.C.T.D., no. IMM-3698-98), Blais, April 21, 1999.
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- Note 105
Singh, Pritam v. M.C.I. (F.C., no. IMM-2513-06), Shore, January 25, 2007; 2007 FC 62, at para. 24.
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- Note 106
Gabeyehu, Bruck v. M.C.I. (F.C.T.D., no. IMM-863-95), Reed, November 8, 1995, at para. 7.
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- Note 107
See Chapter 5, Section 5.6 and Chapter 7. Section 7.3.
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- Note 108
Tang, Xiaoming v. M.C.I. (F.C.T.D., no. IMM-3650-99), Reed, June 21, 2000, at para. 6. “His claim is a
sur place claim and, therefore, the date as of which he became aware that he would allegedly face persecution on return to China is the relevant date, not the date on which he arrived in Canada.”
Return to note 108 referrer
- Note 109
Gyawali, Nirmal v. M.C.I. (F.C., no. IMM-926-03), Tremblay-Lamer, September 24, 2003; 2003 FC 1122.
Return to note 109 referrer
- Note 110
Hue, supra, footnote 57.
Return to note 110 referrer
- Note 1112
Ahmad, Mahmood v. M.C.I. (F.C.T.D., no. IMM-1012-01), Tremblay-Lamer, February 14, 2002; 2002 FCT 171.
Return to note 1112 referrer
- Note 112
Niyonkuru, Joseph v. M.C.I. (F.C., no. IMM-4230-04), De Montigny, February 4, 2005, 2005 FC 174;
Correira, Osvaldo De Matos v. M.C.I. (F.C., no. IMM-8077-04), O’Keefe, August 3, 2005, 2005 FC 1060 and
Singh, supra, footnote 105.
Return to note 112 referrer
- Note 113
Nijjer, Yadhwinder Singh v. M.C.I. (F.C., no. IMM-340-09), de Montigny, December 9, 2009; 2009 FC 1259, at para. 24. In
Peti, Qamile, v. M.C.I. (F.C., no. IMM-1764-11), Scott, January 19, 2012; 2012 FC 82, the claimant, who was found to be not credible by the RPD, had a valid visa and waited six months before filing her claim. The Court found the Minister’s contention that “possession of a visa does not rebut the presumption that a true refugee would claim protection at the first opportunity” to be a sound argument.
Return to note 113 referrer
- Note 114
Williams, Debby v. S.S.C. (F.C.T.D., no. IMM-4244-94), Reed, June 30, 1995. See also
A.G.I. v. M.C.I. (F.C.T.D., no. IMM-5771-01), Kelen, December 11, 2002; 2002 FCT 1287, where the claimant made the refugee claim only after her visitor status in Canada had lapsed and immigration authorities advised her that she could base a refugee claim on her fear of persecution by her husband.
Return to note 114 referrer
- Note 115
Ashraf, Shahenaz v. M.C.I. (F.C., no. IMM-5375-08), O’Reilly, April 19, 2010; 2010 FC 425.
Return to note 115 referrer
- Note 116
Lameen, Ibrahim v. S.S.C. (F.C.T.D., no. A-1626-92), Cullen, June 7, 1994.
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- Note 117
Singh, Nirmal v. M.C.I. (F.C., no. IMM-7334-05), Teitelbaum, June 13, 2006, 2006 FC 743. In
Ismayilov, Anar v. M.C.I. (F.C., no. IMM-7263-14), Mactavish, August 26, 2015; 2015 FC 1013, the claimant had explained to the RPD that he had delayed claiming because his lawyer had advised him to wait until his wife and child arrived in Canada so that they could make their claims as a family. The Court noted that the RPD had an obligation to consider this evidence before it could conclude that the delay in claiming indicated a lack of subjective fear.
Return to note 117 referrer
- Note 118
The word re-availment refers to voluntarily returning to the country of origin and availing oneself of the protection of that country (see IRPA, section 108(1)(a)).
Return to note 118 referrer
- Note 119
Kabengele v. M.C.I. (F.C. no., IMM-1422-99), Rouleau, November 16, 2000, at para. 41.
Return to note 119 referrer
- Note 120
Martinez Requena,
supra, footnote 64, at para. 7. In
Milian Pelaez, Rogelio v. M.C.I. (F.C., no. IMM-3611-11), de Montigny, March 2, 2012; 2012 FC 285, the Court noted that the RPD held against the applicant his return to Guatemala, the place where the people he feared could be found, without considering that he had apparently relocated 100 km away from the place where he had had problems and had changed his profession. In
Ascencio Gutierrez, Arnoldo Maximilanov. M.C.I. (F.C., no. IMM-4903-13), O'Keefe, March 3, 2015; 2015 FC 266, the Court disagreed with the RPD’s finding that two one-month returns to Mexico City (not to the claimant’s home state) to renew his student visa amounted to re-availment. In
Yuan, Xin v. M.C.I. (F.C., no. IMM-5365-14), Boswell, July 28, 2015; 2015 FC 923, the RPD allowed the Minister’s application for cessation because the refugee had returned to his country of origin for one month. The Court found the decision to be unreasonable because the refugee had returned to arrange his mother’s funeral and during his stay had remained in hiding and had avoided the actual funeral out of fear that his persecutors (the Chinese PSB) would find him there.
Return to note 120 referrer
- Note 121
Kanji, Mumtaz Baduraliv.M.C.I. (F.C.T.D., no. IMM-2451-96), Campbell, April 4, 1997.
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- Note 122
Caballero, Fausto Ramon Reyes v. M.E.I. (F.C.A., no. A-266-91), Marceau (dissenting), Desjardins, Létourneau, May 13, 1993. In
Duarte, Augustina Castelanos v. M.C.I. (F.C.T.D., no. IMM-6616-02), Kelen, August 21, 2003; 2003 FCT 988 the Board and the Court took a similar view of the claimant’s return to Cuba to transfer ownership of her house to prevent the government from confiscating it.
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- Note 123
Araya, Carolina Isabel Valenzuela v. M.C.I. (F.C.T.D., no. IMM-3948-97), Gibson, September 4, 1998.
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- Note 124
Prapaharan, Sittampalam v. M.C.I, (F.C. no. IMM-3667-00), McKeown, March 30, 2001; 2001 FCT 272 at para. 17.
Return to note 124 referrer
- Note 125
Gopalapillai, Thinesrupan v. M.C.I. (F.C. no. IMM-3539-18), Grammond, February 26, 2019; 2019 FC 228 at paras 17-19.
Return to note 125 referrer
- Note 126
In
Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.), at 304, the Court pointed out that the Immigration Appeal Board had ignored the fact that the claimant was able to obtain his passport (and exit papers) through his brother's contacts with the government.
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- Note 127
Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592 (C.A.), at 611. Though the Court acknowledged that applying for immigrant visas might possibly be relevant to deciding whether a person really had a fear of persecution, it remarked that a desire to emigrate and a fear of persecution could hardly be considered mutually exclusive.
Return to note 127 referrer
- Note 128
Vaitialingam v. M.C.I. (F.C., no. IMM-9445-03), O’Keefe, October 20, 2004, 2004 FCT 1459, at para. 27.
Return to note 128 referrer
- Note 129
Chandrakumar v. M.E.I. (F.C.T.D., no. A-1649-92), Pinard, May 16, 1997, at para. 6.
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- Note 130
Kurtkapan, Osman v. M.C.I. (F.C.T.D., no. IMM-5290-01), Heneghan, October 25, 2002; 2002 FCT 1114, at para. 31.
Return to note 130 referrer
- Note 131
See the UNHCR
Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, September 1979, paragraphs 94-96. Paragraph 94 provides the following definition: “A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee “sur place”.” See also Chapter 7, section 7.3.,
sur place claims.
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- Note 132
Herrera, Juan Blas Perez de Corcho v. M.E.I. (F.C.T.D., no. A-615-92), Noël, October 19, 1993, at para. 10. The Court upheld the Board’s conclusion that the claimant had no subjective fear and was not a
bona fide refugee because the basis for his alleged fear, namely speaking out against the Cuban regime after claiming refugee status in Canada, was a self-serving act intended to facilitate his refugee claim.
Return to note 132 referrer
- Note 133
In
Ngongo,
Ngongo v M.C.I. (F.C.T.D., no. IMM-6717-98), Tremblay-Lamer, October 25, 1999, at para. 23, from Justice Tremblay-Lamer’s remarks concerning sur place claims, it is clear that the objective basis of the risk must be assessed even where a claimant’s behaviour may have been opportunistic.
[…] The only relevant question is whether activities abroad might give rise to a negative reaction on the part of the authorities and thus a reasonable chance of persecution in the event of return.
Return to note 133 referrer
- Note 134
Asfaw, Napoleon v. M.C.I. (F.C.T.D., no. IMM-5552-99), Hugessen, July 18, 2000, at para. 4.
Return to note 134 referrer
- Note 135
Zewedu, Haimanot v. M.C.I. (F.C.T.D., no. IMM-5564-99), Hugessen, July 18, 2000, at para. 5.
Return to note 135 referrer
- Note 136
Ejtehadian, Mostafa v. M.C.I. (F.C., no. IMM-2930-06), Blanchard, February 12, 2007; 2007 FC 158, at para. 11.
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