- Note 1
Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.).
Return to note 1 referrer
- Note 2
Salibian, supra, footnote1, per Décary J.A.
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- Note 3
Salibian, supra, footnote 1, per Décary, J.A.; Hathaway, James C., The Law of Refugee Status, (Toronto: Butterworths, 1991), page 97.
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- Note 4
Rizkallah, Bader Fouad v. M.E.I. (F.C.A., no. A-606-90), Marceau, MacGuigan, Desjardins, May 6, 1992. Reported: Rizkallah v. Canada (Minister of Employment and Immigration) (1992), 156 N.R. 1 (F.C.A.).
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- Note 5
Rizkallah, supra, footnote 4, per MacGuigan J.A.
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- Note 6
Abdulle, Sadia Mohamed v. M.E.I. (F.C.T.D., no. A-1440-92), Nadon, September 16, 1993. Hassan, Jamila Mahdi v. M.E.I. (F.C.A., no. A-757-91), Isaac, Marceau, McDonald, August 25, 1994. Reported: Hassan v. Canada (Minister of Employment and Immigration) (1994), 174 N.R. 74 (F.C.A.). A claimant’s status as a Tamil male from the north of Sri Lanka is simply not enough, on its own, to establish a well-founded fear of persecution: Subramaniam, Suresh v. M.C.I. (F.C., no. IMM-5129-04), O’Reilly, May 12, 2005; 2005 FC 684 at paragraph 7.
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- Note 7
Guidelines on Civilian Non-Combatants Fearing Persecution in Civil War Situations, issued by the IRB Chairperson pursuant to section 65(3) of the Immigration Act, on March 7, 1996, as continued in effect by the Chairperson on June 28, 2002 under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
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- Note 8
Perhaps the most clear-cut adopting of a comparative approach is found in Isa, Sharmarka Ahmed v. S.S.C. (F.C.T.D., no. IMM-1760-94), Reed, February 16, 1995.
Many if not most civil war situations are racially or ethnically based. If racially motivated attacks in civil war circumstances constitute a ground for convention refugee status, then, all individuals on either side of the conflict will qualify. The passages quoted by the Board from [paragraph 164 of] the United Nations Handbook … indicates that this is not the purpose of the 1951 Convention.
The Isa decision was cited approvingly in Ali, Farhan Omar v. M.C.I. (F.C.T.D., no. A-1652-92), McKeown, June 26, 1995. Mr. Justice McKeown did not refer to any particular passage in Isa.
In 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 Trial Division certified the following question: “Are refugee claimants excluded from the definition of Convention refugee if all groups in their country, including the group of which they are members, are both victims and perpetrators of human rights violations in the context of civil war?” See, infra, footnote 13.
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- Note 9
Requiring a worse predicament might mean any one of several things. To succeed, a claimant might have to establish: (i) that the claimant’s level of risk is greater than the risk level of persons in other groups, or (ii) that the claimant’s risk level is greater than the risk level of other persons in the claimant’s own group; or (iii) that the claimant is at risk of suffering harm greater than that which threatens others.
Regarding (i), see Siad, Dahabo Jama v. M.E.I. (F.C.T.D., no. 92-A-6820), Rothstein, April 13, 1993. Reported: Siad v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 6 (F.C.T.D.); and Omar, Suleiman Ahmed v. M.C.I. (F.C.T.D., no. A-1615-92), McKeown, February 7, 1996. Regarding (ii), see Hassan, supra, footnote 6.
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- Note 10
The claimant’s group must be one which is definable in terms of a Convention characteristic.
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- Note 11
Salibian, supra, footnote 1, points out that there may be a nexus in a civil war context. Rizkallah, supra, footnote 4, may be seen as adding to Salibian little more than a reminder that nexus may also be absent in such a situation. Simple political instability does not make for a well-founded fear of persecution: Del BustoEzeta, Octavio Alberto v. M.C.I. (F.C.T.D., no. IMM-2021-95), Cullen, February 15, 1996, wherethe claimant’s difficulties were a result of the unsettled and dangerous political climate in Peru, rather than being linked to a Convention ground. In Khalib, Amina Ahmed v. M.E.I. (F.C.T.D., no. A-656-92), MacKay, March 30, 1994. Reported: Khalib v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 149 (F.C.T.D.),the claimants’ home area, in which the claimants’ Issaq clan predominated, had been sown with mines by the former Somali government, allegedly with the intention of harming Issaqs. Many mines remained, and the claimants feared injury. The Refugee Division held that the danger was one faced indiscriminately by all people in the area; and in upholding the decision, the Court noted that while Issaqs may have been the majority, the danger was nevertheless faced by all.
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- Note 12
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, per La Forest J., “The examination of the circumstances should be approached from the perspective of the persecutor, since that is determinative in inciting the persecution.”
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- Note 13
Ali, Shaysta-Ameer v. M.C.I. (F.C.A., no. A-772-96), Décary, Stone, Strayer, January 12, 1999.
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- Note 14
Supra, footnote 7.
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- Note 15
Fi v. Canada (Minister of Citizenship and Immigration), [2007] 3 F.C.R. 400; 2006 FC 1125 at paragraph 19.
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- Note 16
Fathi-Rad, Farideh v. S.S.C. (F.C.T.D., no. IMM-2438-93), McGillis, April 13, 1994. See also Namitabar v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 42 (T.D.). Compare Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996. In Canada (Secretary of State) v. Namitabar (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..."
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- Note 17
Musial v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 290 (C.A.). Speaking for the majority, Pratte J. said:
A person who is punished for having violated an ordinary law of general application, is punished for the offence he has committed, not for the political opinions that may have induced him to commit it. … [A] person who has violated the laws of his country of origin by evading ordinary military service, and who merely fears prosecution and punishment for that offence in accordance with those laws, cannot be said to fear persecution for his political opinions even if he was prompted to commit that offence by his political beliefs.
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- Note 18
Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.).
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- Note 19
Zolfagharkhani, supra, footnote 18
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- Note 20
Zolfagharkhani, supra, footnote 18. These propositions have been cited with regularity in subsequent decisions dealing with conscientious objection to military service. See section 9.3.6., infra.
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- Note 21
In Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), Linden J.A. said that the Refugee Division “wrongly required that a ‘persecutory intent’ be present, whereas a ‘persecutory effect’ suffices.”
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- Note 22
Compare Antonio, Pacato Joao v. M.E.I. (F.C.T.D., no. IMM-1072-93), Nadon, September 27, 1994 (re: treason, espionage and sabotage).
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- Note 23
In Daghighi, Malek v. M.C.I. (F.C.T.D., no. A-64-93), Reed, November 16, 1995, the Refugee Division had held that the Iranian claimant had simply run afoul of “laws or a policy of general application founded on fundamentalist principles of Islamic law”. But evidence indicated that the claimant had incurred the authorities’ displeasure for Western tendencies and unacceptable religious views, and that he had been obliged to undergo religious instruction. The Court rejected the conclusion that his difficulties were not related to a Convention ground.
In Chan (F.C.A.), Mr. Justice Heald ruled that punishment for breach of a government policy is not punishment for political opinion if the breach will be perceived by the authorities not as a challenge to their authority but only as a breach of a law: Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (C.A.). See also Ni, Kong Qiu v. M.C.I. (F.C. no. IMM-229-18), Walker, September 25, 2018; 2018 FC 948 where the Court confirmed the RPD decision that if the claimant were arrested in China, he faced prosecution due to his resistance to the expropriation of his home. He would not face persecution.
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- Note 24
Chanv. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, per La Forest J. (dissenting).
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- Note 25
Cheung, supra, footnote 21, per Linden J.A.
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- Note 26
Chan (S.C.C.), supra, footnote 24, per La Forest J. (dissenting).
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- Note 27
Chan (S.C.C.), supra, footnote 24 per La Forest J. (dissenting).
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- Note 28
Namitabar (T.D.), supra, footnote 16; Rodriguez-Hernandez, Severino Carlos v. S.S.C. (F.C.T.D., no. A-19-93), Wetston, January 10, 1994.
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- Note 29
Antonio, supra, footnote 22. 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.
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- Note 30
In Cheung, supra, footnote 21, the Court noted that while China’s one-child policy is generally applicable, the forced sterilization of women who have had a child is not a law of general application. See also 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.), where the Court stated that “economic sanctions, as a means to enforce compliance with the law, does [sic] not amount to persecution”. The Court followed this reasoning in Li, Mei Yun v. M.C.I. (F.C., no. IMM-3375-10), Near, May 25, 2011; 2011 FC 610. See also Chan (S.C.C.), supra, footnote 24, where Major J., citing Cheung, noted that “forced sterilization is not a law of general application but rather an enforcement measure used by some local authorities with, at most, the tacit acceptance of the central government. Thus, the reasonableness of a fear of persecution depends, inter alia, on the practices of the relevant local authority”.
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- Note 31
Regarding extra-judicial punishment, see Cheung, supra, footnote 21, at 323; and Moslim, Mahdi Fraih v. S.S.C. (F.C.T.D., no. 93-A-166), McGillis, February 14, 1994. Regarding lack of due process, see Namitabar, supra, footnote 16.
An enactment may itself allow for denial of due process, thereby increasing the chances that persecution will occur; see, for example, Balasingham, Satchithananthan v. S.S.C. (F.C.T.D., no. IMM-2469-94), Rothstein, February 17, 1995.
In 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.), the Court held that the claimant’s fear of extra-judicial punishment, which was based partly on alleged irregularities in prosecution, was not well founded. Furthermore, the Court stated that “... Canadian tribunals have to assume a fair and independent judicial process in the foreign country. In the case of a non-democratic State contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching ... [some key element of the judicial system].” In Chowdhury, Hasan Mahmud v. M.C.I. (F.C., no. IMM-7284-05), Mosley, March 4, 2008; 2008 FC 290, the Court faulted the RPD for not considering evidence of enormous backlogs and prolonged or indefinite periods of detention before trial in the claimant’s country.
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- Note 32
For example, in Pacificador, Rodolfo Guerrero v. M.C.I., no. IMM-4057-02), Heneghan, December 12, 2003; 2003 FC 1462, the Court held that the Board should have considered the objective basis of the claim relative to the claimant’s membership in a group consisting of persons in the Philippines who are prosecuted for political motives and whose prosecution appears to be tainted by corruption. In Altun, Ali v. M.C.I. (F.C., no. IMM-5854-11), Shore, August 29, 2012; 2012 FC 1034, the Court noted that the RPD had considered the matter as one of prosecution rather than persecution but failed to consider that a prosecution can be persecutory if there is clear evidence that the prosecution is not fair.
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- Note 33
Mohamed, Abd Almoula Mohamed v. M.E.I. (F.C.A., no. A-26-92), Strayer, MacGuigan, Robertson, November 7, 1994. The Court offered little elaboration in its brief reasons, and did not clearly articulate its measure(s) of validity.
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- Note 34
Drozdov, Natalia v. M.C.I. (F.C.T.D., no. IMM-94-94), Joyal, January 9, 1995.
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- Note 35
Cheung, supra, footnote 21, per Linden J.A.
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- Note 36
Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.).
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- Note 37
Thirunavukkarasu, supra, footnote 36, per Linden J.A.
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- Note 38
Thirunavukkarasu, supra, footnote 36, per Linden J.A
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- Note 39
Toledo, Ruben Fernando San Martin v. M.E.I. (F.C.A., no. A-205-91), Hugessen, Desjardins, Décary, March 1, 1993.
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- Note 40
For example, see Kaler, Minder Singh v. M.E.I. (F.C.T.D., no. IMM-794-93), Cullen, February 3, 1994. In Sran, Gurjeet Singh v. M.C.I. (F.C.T.D., no. IMM-3195-96), McKeown, July 29, 1997, where the claimant had been repeatedly and badly tortured while in police custody, the Court observed: “Torture can never be excused at any time and it is insufficient to characterize it simply as abuse.”
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- Note 41
For example, see Manihani, Saravjit Singh v. M.E.I. (F.C.T.D., no. A-753-92), Noël, September 3, 1993; Naguleswaran, Pathmasilosini (Naguleswaran) v. M.C.I. (F.C.T.D., no. IMM-1116-94), Muldoon, April 19, 1995. In Naguleswaran the Court commented that those belonging to militant organizations ought not to be “treated with front-parlour civility”.
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- Note 42
Brar, Jaskaran Singh v. M.E.I. (F.C.T.D., no. IMM-292-93), Rouleau, September 8, 1993; and Papou, Bhatia v. M.E.I. (F.C.T.D., no. A-1040-92), Rouleau, August 15, 1994. See also Naguleswaran, supra, footnote 41, where Muldoon J. expressed the view that “western concepts of the administration of justice will just not work in some other countries” (emphasis omitted), given the need of those countries to safeguard public security, cope with civil war, and combat terrorism.
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- Note 43
Alfred, Rayappu v. M.E.I. (F.C.T.D., no. IMM-1466-93), MacKay, April 7, 1994: “The tribunal did not assess the physical mistreatment of the applicant by Colombo police in terms of persecution. Under the International Covenant on Civil and Political Rights [,] Articles 7 and 4 make clear that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment even in times of public emergency.”
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- Note 44
Brar, supra, footnote 42.
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- Note 45
Mahalingam, Paramalingam v. S.G.C. (F.C.T.D., no. A-79-93), Joyal, November 2, 1993; and Naguleswaran, supra, footnote 41. In Velluppillai, Selvaratnam v. M.C.I. (F.C.T.D., no. IMM-2043-99), Gibson, March 9, 2000, the Court concluded that while the statement “Short detentions for the purpose of preventing disruption or dealing with terrorism do not constitute persecution” may be generally true, the CRDD must take into account the special circumstances of the claimant, in particular his age and, given that age, the impact of his prior experiences as forecasted in a psychological report. Kularatnam, Suhitha v. M.C.I. (F.C., no. IMM-3530-03), Phelan, August 12, 2004; 2004 FC 1122, at paragraph 10, affirms this position. 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.
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- Note 46
Joseph, Christy Shanthakumar v. S.S.C. (F.C.T.D., no. IMM-7503-93), MacKay, November 18, 1994.
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- Note 47
Murugiah, Rahjendran v. M.E.I. (F.C.T.D., no. 92-A-6788), Noël, May 18, 1993; Soma, Ester Elvira v. M.C.I. (F.C.T.D., no. A-1129-92), Richard, November 15, 1994.
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- Note 48
In Wickramasinghe v. M.C.I. (F.C.T.D., no. IMM-2489-01), Martineau, April 26, 2002; 2002 FCT 470, the Trial Division, following Thirunavukkarasu, supra, footnote 36, held “that beatings, arbitrary arrests and detention of suspects, even in a state of emergency, can never be justified or considered a legitimate part of investigations into criminal or terrorist activities, however dangerous the suspects are thought to be.”
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- Note 49
In Rafieyan, Majid v. M.C.I. (F.C., no. IMM-4221-06), Tremblay-Lamer, July 6, 2007; 2007 FC 727, the Court, reviewing a decision of an immigration officer on a humanitarian and compassionate application, noted that the officer did not err in finding that while penalties prescribed by law may be indicative of risk, they are not determinative of the issue where there is evidence that these laws are not being enforced.
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- Note 50
Chan (S.C.C.), supra, footnote 24, per Major J.
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- Note 51
Chan (S.C C.), ibid., per Major J.
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- Note 52
John, Lindyann v. M.C.I. (F.C.T.D., no. IMM-2833-95), Simpson, April 24, 1996 (reasons signed July 29, 1996), (re law criminalizing homosexual acts). More generally, note Torres, Alejandro Rodriguez v. M.C.I. (F.C.T.D., no. IMM-503-94), Simpson, February 1, 1995 (reasons signed April 26, 1995): “In my view, refugee claims are not to be considered on a theoretical level which ignores the realities of the evidence. ... [The Refugee Division] was entitled to make a practical assessment of the possibility of the Applicant facing future persecution.”
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- Note 53
See, for example, Mohebbi, Hadi v. M.C.I. (F.C., no. IMM-3755-13), Harrington, February 26, 2014; 2014 FC 182.
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- Note 54
Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, May 1, 2017, section 8.5.6.
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- Note 55
See, for example, Cheng v. M.C.I. (F.C.T.D., no. IMM-6589-00), Pinard, March 1, 2002; 2002 FCT 211; and Zheng v. M.C.I. (F.C.T.D., no. IMM-2415-01), Martineau, April 19, 2002; 2002 FCT 448.
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- Note 56
There may be an overstay law which applies to all residents of a country or to all of the country’s citizens, and which provides for penalties of fine or incarceration. Alternatively, a law may provide that a non-citizen resident (including a stateless resident) who travels abroad must return and report periodically, and that failure to do so will result in the loss of resident status and the right to return: e.g. Altawil, supra, footnote 16.
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- Note 57
For an example of this last situation, see Losolohoh, James Salah v. M.E.I. (F.C.T.D., no. IMM-2324-94), Wetston, December 13, 1994.
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- Note 58
Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.).
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- Note 59
Valentin, supra, footnote 58.
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- Note 60
However, see M.S. v. M.C.I. (F.C.T.D., no. A-132-91), McKeown, August 27, 1996. The Court suggested that the severity of the penalty might be a very significant factor.
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- Note 61
See Perez, Sofia Sofi v. M.C.I. (F.C., no. IMM-6504-09), Snider, August 23, 2010; 2010 FC 833, where the Court applied Valentin and also found that based on the evidence, it was far from clear that the claimant would be charged and convicted under the applicable law. She could still apply for a special re-entry permit to return to Cuba and her allegation of imprisonment was mere speculation. In Del Carmen Marrero Nodarse, Maria v. M.C.I. (F.C., no. IMM-1706-10), Near, March 10, 2011; 2011 FC 289, the Court upheld the Board’s finding that the applicant had artificially created a circumstance in which she might be punished for violating a Cuban law of general application. As there was no evidence that any prosecution the applicant would face would not be neutral, the RPD did not find that any potential prosecution constituted a risk of harm. In Suarez Rosales, Reinaldo v. M.C.I. (F.C., no. IMM-5038-11), Phelan, March 19, 2012; 2012 FC 323, the Cuban claimants had failed to seek an extension of their exit visas even though it is normal to extend such visas for 11 months and possibly longer.
Return to note 61 referrer
- Note 62
Pernas Hernandez, Euler v. M.C.I. (F.C., no. IMM-2072-08), Phelan, March 4, 2009; 2009 FC 229.
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- Note 63
Castaneda, Robert Martinez v. M.E.I. (F.C.T.D., no. A-805-92), Noël, October 19, 1993(Cuba). In Chow, Wing Sheung v. M.C.I. (F.C.T.D., no. A-1476-92), McKeown, March 26, 1996, the Court noted that the Refugee Division had found that neither the maximum prescribed penalty nor the penalties actually imposed were harsh.
Return to note 63 referrer
- Note 64
Donboli, Khosrow v M.C.I. (F.C., no. IMM-3013-02), Dawson, July 16, 2003; 2003 FC 883. See also Alfaro, Victor Labrador v. M.C.I. (F.C., no. IMM-7390-10), Rennie, July 22, 2011; 2011 FC 912; and Gonzalez Salcedo, Maykel v. M.C.I. (F.C., no. IMM-5975-13), Phelan, August 25, 2014; 2014 FC 822.
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- Note 65
For an example of a situation which was found not to constitute desertion, see Nejad, Saeed Javidani-Tabriz v. M.C.I. (F.C.T.D., no. IMM-4624-93), Richard, November 16, 1994.
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- Note 66
Musial, supra, footnote 17, per Thurlow C.J.
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- Note 67
Popov, Leonid Anatolievich v. M.E.I. (F.C.T.D., no. IMM-2567-93), Reed, April 11, 1994. Reported: Popov v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 242 (F.C.T.D.).
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- Note 68
Garcia, Marvin Balmory Salvador v. S.S.C. (F.C.T.D., no. IMM-2521-93), Pinard, February 4, 1994. In Haoua, Mehdi v. M.C.I. (F.C.T.D., no. IMM-698-99), Nadon, February 21, 2000, the Court stated at para. 16 “… I also note that military service does not, in itself, constitute persecution. Rather, the Applicant’s claim hinged on the fear that he would be forced to commit atrocities if he were drafted. If there is no evidence of atrocities, as there was none in this case, there is no evidence of persecution.”
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- Note 69
Convention on the Rights of the Child, Article 38(2) – under age 15; and Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Article 2 - under age 18. The recruitment of child soldiers is a war crime under the Rome Statute of the International Criminal Court.
Return to note 69 referrer
- Note 70
Zolfagharkhani, supra, footnote 18.
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- Note 71
Musial, supra, footnote 17, also dealt with military service but Zolfagharkhani, supra, footnote 18 has replaced Musialas the chief authority not only with respect to the more encompassing topic of laws of general application, but also with respect to this particular example of such laws. See Chapter 9, section 9.3.2.
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- Note 72
See Chapter 9, section 9.3.2.
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- Note 73
Ates, Erkan v. M.C.I. (F.C.A., no. A-592-04), Linden, Nadon, Sharlow, October 5, 2005; 2005 FCA 322 [Appeal from Ates, Erkan v. M.C.I. (F.C., no. IMM-150-04), Harrington, September 27, 2004; 2004 FC 1316]; leave to appeal to the Supreme Court of Canada dismissed without costs March 30, 2006 (31246). This case was followed in Ielovski, Vladimir v. M.C.I. (F.C., no. IMM-3520-07), de Montigny, June 13, 2008; 2008 FC 739; and in Hinzman v.Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 561; 2006 FC 420, where the Court stated:
[207] At the present time, however, there is not internationally recognized right to either total or partial conscientious objection. While the UN Commission on Human Rights and the Council of Europe have encouraged member States to recognize a right to conscientious objection in various reports and commentaries, no international human rights instrument currently recognizes such a right, and there is no international consensus in this regard…
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- Note 74
Zolfagharkhani, supra, footnote 18.
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- Note 75
See Ahani, Roozbeh v. M.C.I. (F.C.T.D., no. IMM-4985-93), MacKay, January 4, 1995, where the Court said that the Refugee Division was entitled to find that the detentions and any associated mistreatment were related to the claimant’s failure to complete his military service, rather than to his Kurdish origin or related political views. On the other hand, see Diab, Wadih Boutros v. M.E.I. (F.C.A., no. A-688-91),Isaac, Marceau, McDonald, August 24, 1994, where the Court held that the Refugee Division erred in that it failed to consider whether the claimant’s opposition to serving in a particular militia (which had press-ganged him) constituted a political opinion which could result in persecution.
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- Note 76
Zolfagharkhani, supra, footnote 18.
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- Note 77
See for example Sladoljev, Dejan v. M.E.I. (F.C.T.D., no. IMM-3160-94), Cullen, July 4, 1995. The Court did not mention Zolfagharkhani, supra, footnote 18.
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- Note 78
See also paragraphs 170 to 174 of the UNHCR Handbook.
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- Note 79
Popov, supra, footnote 67. In Lebedev, Vadim v.M.C.I. (F.C., no. IMM-2208-06), de Montigny, July 9, 2007; 2007 FC 728, the Court described conscientious objection as “genuine convictions grounded in religious beliefs, philosophical tenets or ethical considerations”.
Return to note 79 referrer
- Note 80
Zolfagharkhani, supra, footnote 18.
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- Note 81
Ciric v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 65 (T.D.).
Return to note 81 referrer
- Note 82
Zolfagharkhani, supra, footnote 18. See also: Ciric, supra, footnote 81. It is not enough for the claimant to show that a particular conflict has been condemned by the international community; it must also be the case that his refusal to participate was based on the condemnation: Sladoljev, supra, footnote 77. And there must be a reasonable chance that the claimant would indeed be required to participate in the objectionable operations: Zolfagharkhani, supra, footnote 18;
Pronouncements from organizations such as Amnesty International, Helsinki Watch, and the Red Cross may constitute condemnation by the world community; condemnation by the United Nations is not necessary: Ciric, supra, footnote 81.
A non-defensive incursion into foreign territory is military activity that violates basic international standards, and United Nations condemnation of such an incursion is condemnation of the incursion as contrary to basic rules of human conduct: Al-Maisri, Mohammed v. M.E.I. (F.C.A., no. A-493-92), Stone, Robertson, McDonald, April 28, 1995.
There will also be instances where political expediency will prevent the UN or its member states from condemning the violation of international humanitarian law. This is why reports from credible non-governmental organizations, especially when they are converging and hinge on ground staff, should be accorded credit. Such reports may be sufficient evidence of unacceptable and illegal practices. See Lebedev, supra, footnote 79, cited with approval in Tewelde, Baruch v.M.C.I. (F.C., no. IMM-81-06), Gauthier, October 24, 2007; 2007 FC 1103.
Return to note 82 referrer
- Note 83
Popov, supra, footnote 67. There must be a probability, and not merely a possibility, that the military will engage in the offending activity: Hashi, Haweya Abdinur v. M.C.I. (F.C.T.D., no. IMM-2597-96), Muldoon, July 31, 1997, alluding to Zolfagharkhani. In Sounitsky, Alexander v. M.C.I. (F.C., no. IMM-2184-07), Mosley, March 14, 2008; 2008 FC 345, the PRRA officer referred to evidence acknowledging the existence of abuses and the allegations by some international organizations about Israeli Defence force practices and gave a reasoned explanation for finding that the abuses were isolated and not systemic. A similar finding was made in Volkovitsky, Olga v. M.C.I. (F.C., no. IMM-567-09), Shore, September 10, 2009; 2009 FC 893. In Key, Joshua Adam v. M.C.I. (F.C., no. IMM-5923-06), Barnes, July 4, 2008; 2008 FC 838, the issue was raised as to whether widespread violations of international law carried out by a military force but not rising to the level of war crimes or crimes against humanity can support a refugee claim by a conscientious objector. The case law does not support the idea that refugee protection is only available where the particulars of one’s objection to military service would, if carried out, exclude a claim by that person to protection.
Return to note 83 referrer
- Note 84
Zolfagharkhani, supra, footnote 18.
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- Note 85
Diab,supra, footnote 75.
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- Note 86
Talman, Natalia v. S.G.C. (F.C.T.D., no. IMM-5874-93), Joyal, January 11, 1995. In Kirichenko, Andrei v. M.C.I. (F.C., no. IMM-688-10), Russell, January 6, 2011; 2011 FC 12, the Court noted that the RPD erred by failing to mention and deal with the objective documentation on the record which said that conscientious objector status was not available to males in Israel. (Hinzman distinguished). The Court further noted that the evidence showed that there was no law allowing for conscientious objector status in Israel and the so-called Conscientious Objector Committee is “haphazard, secretive and difficult to access”, which is vague and arbitrary and cannot be considered an option. However, in the later case of Graider, Emil v. M.C.I. (F.C., no. IMM-2894-12), O’Reilly, April 29, 2013; 2013 FC 435, the Court referred to post Kirichenko evidence that indicated that Israel had established a “special military committee” that grants exemptions from military service to conscientious objectors, or recommends their assignment to non-combat roles. This committee was set up in response to a May 2009 judgment of the Israeli High Court of Justice that recognized the rights of conscientious objectors.
Return to note 86 referrer
- Note 87
Frid, Mickael v. M.C.I. (F.C.T.D., no. IMM-6694-93), Rothstein, December 15, 1994. See also Moskvitchev, Vitalli v. M.C.I. (F.C.T.D., no. IMM-70-95), Dubé, December 21, 1995, where the Court upheld decisions of Post-Claim Determination Officers (PCDOs). In Moskvitchev, the PCDO found that a sentence of six months to five years for draft evasion in Moldova would not be inhuman [sic] or extreme. Insults and attacks on a conscientious objector while in prison do not constitute persecution: Treskiba, Anatoli Benilov v. M.C.I. (F.C., no. IMM-1999-08), Pinard, January 13, 2009; 2009 FC 15.
Return to note 87 referrer
- Note 88
In Al-Maisri, supra, footnote 82, the claimant had deserted from an army which was participating in an operation condemned as contrary to basic rules of human conduct, and the Court noted that “the punishment for desertion which would likely be visited upon the [claimant] …, whatever that punishment might be, would amount to persecution.” (emphasis added).
Return to note 88 referrer
- Note 89
Moz, Saul Mejia v. M.E.I. (F.C.T.D., no. A-54-93), Rothstein, November 12, 1993. Reported: Moz v. Canada (Minister of Employment and Immigration) (1993), 23 Imm. L.R. (2d) 67 (F.C.T.D.). In Lowell, Matthew David v. M.C.I. (F.C., no. IMM-4599-08), Zinn, June 22, 2009; 2009 FC 649, on an unsuccessful application for humanitarian and compassionate relief, the Court noted that the evidence indicated that the applicant (a U.S. deserter) would likely not serve more than 15 months (of a possible sentence of 7 years confinement or possibly the death penalty) and only then after receiving due process.
Return to note 89 referrer
- Note 90
In Rivera, Kimberly Elaine v. M.C.I. (F.C., no. IMM-215-09), Russell, August 10, 2009; 2009 FC 814, the Court criticized the RPD because it had failed to conduct a meaningful examination in the decision of selected and targeted prosecution by the U.S. based upon the political opinion of those deserters who have spoken out against the war in Iraq. Similarly, in Walcott, Dean William v. M.C.I. (F.C., no. IMM-5527-10; F.C. no. IMM-5528-08), de Montigny, April 5, 2011; 2011 FC 415, the Court found that the PRRA Officer ignored the applicant’s evidence that his fear was based not so much on being punished for having been absent from his military unit without permission, but of being treated more harshly because of the high profile of his case and his public speeches in opposition to the war in Iraq. The Officer failed to address this risk, and more particularly the risk of being court-martialed and imprisoned rather than being administratively discharged. In Vassey, Christopher Marco v. M.C.I. (F.C., no. IMM-5834-10), Scott, July 18, 2011; 2011 FC 899, the Court found unreasonable the RPD’s failure to assess the evidence before it concerning the application of prosecutorial discretion on the grounds of political opinion. In R.S. v. M.C.I. (F.C., no. IMM-6056-11), Gleason, July 6, 2012; 2012 FC 860, the Court found that the RPD erred by failing to consider the applicant’s argument that the treatment afforded to selective conscientious objectors in Israeli military prisons was harsher than that afforded to those who were jailed because they had refused to serve for other reasons and that selective conscientious objectors received longer sentences. In Tindungan, Jules Guiniling v. M.C.I. (F.C., no. IMM-5069-12), Russell, February 1, 2013; 2013 FC 115, the Court found that the RPD had failed to consider evidence that supported the claimant’s allegation that he would be disproportionately punished if sent back to the US because of his publicly expressed political opinions.
Return to note 90 referrer
- Note 91
Kogan, Meri v. M.C.I. (F.C.T.D., no. IMM-7282-93), Noël, June 5, 1995. The operative idea seems to be that the claimant should be considered bound by his own voluntary decision. The fact that the claimant chose to immigrate despite knowing of compulsory service might also raise a question as to the strength (or even genuineness) of his conviction. But note that in Agranovski, Vladislav v. M.C.I. (F.C.T.D., no. IMM-2709-95), Tremblay-Lamer, July 3, 1996, whereat the time of immigrating to Israel, the claimant had known that there was compulsory military service, and the Refugee Division did not believe he had reasons of principle for refusing to serve, the Court overturned this conclusion, noting that the claimant had been brought to the country as a minor by his parents, and that he had thought he would be able to avail himself of alternative service.
Return to note 91 referrer
- Note 92
Hinzman, Jeremy, RPD TA4-01429, B. Goodman, March 16, 2005; Hughey, Brandon David, RPD TA4-05781, B. Goodman, August 16, 2005.
Return to note 92 referrer
- Note 93
Hinzman, supra, footnote 73; Hughey, Brandon David v.M.C.I. (F.C., no. IMM-5571-05), Mactavish, March 31, 2006; 2006 FC 421.
Return to note 93 referrer
- Note 94
Hinzman, Jeremy v.M.C.I. and Hughey, Brandon David v.M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171 (leave to appeal dismissed by the SCC on November 15, 2007, [2007] S.C.C.A. No. 321). In Colby, Justin v. M.C.I. (F.C., no. IMM-559-07), Beaudry, June 26, 2008; 2008 FC 805, the Court found that the claimant’s claim was materially indistinguishable from the decision in Hinzman except that the claimant was a medic who was deployed to Iraq instead of a foot soldier who deserted after his unit had been deployed to that country. Key, supra, footnote 83, confirms that the Hinzman decision set the bar very high for deserters from the United States military seeking refuge in Canada. However, because the Board took the issue of state protection “off the table” at the hearing, Mr. Key should be given the opportunity to address fully the issue of state protection in a rehearing before the Board. Landry, Dale Gene v. M.C.I. (F.C., no. IMM-5148-08), Harrington, June 8, 2009; 2009 FC 594 also followed Hinzman. While the preceding cases following Hinzman were based on conscientious objection (effectively, political opinion), in Smith, Bethany Lanae v. M.C.I. (F.C., no. IMM-677-09), de Montigny, November 20, 2009; 2009 FC 1194, the claim was based on sexual orientation and the Court noted that the RPD failed to consider evidence that the U.S. military judicial system was unfair to, and biased, against homosexuals and that the claimant could not effectively defend herself against a charge of desertion. At the re-hearing of the claim, the RPD again rejected the claim and did not believe the claimant’s allegation of having experienced persecution based on her sexual orientation. The Court upheld the decision and held, inter alia, that absent evidence of efforts by the applicant to avail herself of the remedies available in the United States, it was impossible for the RPD to assess the availability of state protection for her (Hinzman). It was reasonably open to the RPD to conclude there was adequate recourse in the US for those who felt they had been wronged in the US army. See Smith, Bethany Lanae v. M.C.I. (F.C., no. IMM-5699-11), Mosley, November 2, 2012; 2012 FC 1283.
Return to note 94 referrer
- Note 95
In both Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), and Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, it was recognized that the fear of persecution under China’s one-child policy is largely dependent on the practices of the relevant local authority. A review of the documentary evidence in Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983 indicated that this was still the case at the time of the hearing. In Lau, Yei Wah v. M.C.I. (F.C., no. IMM-2329-07), Phelan, April 17, 2008; 2008 FC 499, a PRRA officer found that payment of a fee for a breach of the one-child policy was not persecution. It was incumbent on the claimant to put forward evidence that the fee was so large as to amount to persecution, either as a general proposition or in regard to the claimant personally.
Return to note 95 referrer
- Note 96
Cheung, supra, footnote 21.
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- Note 97
Chan (F.C.A.), supra, footnote 23.
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- Note 98
Ward, supra, footnote 12.
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- Note 99
Chan (S.C.C.), supra, footnote 24.
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- Note 100
Chan (F.C.A.), supra, footnote 23, per Heald J.A.
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- Note 101
Cheung, supra, footnote 21. See also Chan (S.C.C.), supra, footnote 24, per Major J. The Supreme Court noted that, for the claim to succeed, evidence must show both that there is a subjective fear and that the fear is “objectively well-founded” (per Major J.). According to the Court, the evidence did not establish a serious possibility that certain harm would be inflicted - i.e., did not establish an objective basis (per Major J.). The Court also had doubts as to whether subjective fear was made out (per Major J.).
Return to note 101 referrer
- Note 102
"Physical compulsion is not the only mechanism for forcing a person to do something which they would not of their own free choice choose to do”: Liu, Ying Yang v. M.C.I. (F.C.T.D., no. IMM-4316-94), Reed, May 16, 1995. The claimant had been subjected to “incredible pressure”: her work unit, and she herself and her husband, would have incurred fines if she had had a second child; also, on two occasions a member of the work unit had accompanied her to a hospital where she was to undergo sterilization. Such pressure amounts to “forcing”, as does denying a person 80% of his salary.
Compare Chan (S.C.C), supra, footnote 24, per Major J.: “... the [claimant] failed to provide ... evidence to substantiate his claim that the pressure from the Chinese authorities to submit to sterilization would extend beyond psychological and financial pressure to actual physical coercion.” It is unclear whether Mr. Justice Major (i) was of the view that psychological and financial pressure could not constitute forcing (and could not constitute persecution), or (ii) was simply focusing upon the specific allegation made by the appellant (namely, that he would be physically coerced), or (iii) did not think the particular psychological and financial pressures confronting this claimant would be severe enough to constitute persecution. Interpretation (i) might be a dubious one, given that Major J. did not clearly assert this view, and did not present a discussion of the issue.
Return to note 102 referrer
- Note 103
Cheung, supra, footnote 21.
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- Note 104
Chan (S.C.C.), supra, footnote 24, per La Forest J. (dissenting). 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 also Chan (F.C.A.), supra, footnote 23, per Heald J.A. and per Mahoney J.A. (dissenting).
Return to note 104 referrer
- Note 105
Cheung, supra, footnote 21. For a Supreme Court response to the “legitimate end” argument - a response complementing that of Linden J.A. in Cheung, supra, footnote 21 - see the remarks of La Forest J. (dissenting), in Chan (S.C.C.), supra, footnote 24.
Return to note 105 referrer
- Note 106
Chan (S.C.C.), supra, footnote 24, per La Forest J. (dissenting).
Return to note 106 referrer
- Note 107
Lai, Quang v. M.E.I. (F.C.T.D., no. IMM-307-93), McKeown, May 20, 1994. See also Xiao, Yan Liu v. M.C.I. (F.C.T.D., no., IMM-712-15), Harrington, October 21, 2015; 2015 FC 1193, where the Court stated: “ Both jurisprudence and common sense conclude that the violation of a woman’s reproductive and physical integrity, such as by means of forced abortion or the forced insertion of an IUD constitutes persecution and that the victim of such acts is a member of a particular social class under section 96 of IRPA and is entitled to Canada’s protection.”
Return to note 107 referrer
- Note 108
Zheng, Jin Xia v. M.C.I. (F.C., no. IMM-3121-08), Barnes March 30, 2009; 2009 FC 327; and M.C.I. v. Ye, Yanxia (F.C., no. IMM-8797-12), Pinard, June 13, 2013; 2013 FC 634.
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- Note 109
This ruling is from an old decision, Lin v. Canada (Minister of Employment and immigration), (1993), 66 FTR 207, 24 Imm LR (2d) 208 (FCTD) but it has been cited with approval in various cases, including Chen, Li Xing v. M.C.I. (F.C., no. IMM-8158-13), Rennie, February 19, 2015; 2015 FC 225. But note that in Huang, Wei Yao v. M.C.I. (F.C., no. IMM-10448-12), Simpson, October 23, 2013; 2013 FC 1074, the Court commented that the RPD should have considered the argument that if fines are imposed at six times the claimants’ annual income as an alternative to sterilization, such fines are persecutory because they have a coercive impact and essentially mean that sterilization will be preferred and will occur.
Return to note 109 referrer
- Note 110
Lai, supra, footnote 107. In Liu, supra, footnote 102, the Court noted there was no evidence that the adult claimants, who had had a second child while in Canada, still objected to the family planning policy or methods of the Chinese government; on this basis, the Court held that evidence of subjective fear was lacking. See also Cheng, Kin Ping v. M.C.I. (F.C.T.D., no. IMM-176-97), Tremblay-Lamer, October 8, 1997,where the male claimant had no reason to fear persecution for violation of the family planning policy, since his wife had already been sterilized (following the birth of one child and a subsequent forced abortion).
Return to note 110 referrer
- Note 111
Cheung, supra, footnote 21.
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- Note 112
Chan (F.C.A.), supra, footnote 23, per Heald J.A., and Desjardins J.A. In his dissent, Mahoney J.A. rejected one delineation of a particular social group, but accepted another.
Return to note 112 referrer
- Note 113
Chan (S.C.C.), supra, footnote 24, per Major J.
Return to note 113 referrer
- Note 114
Chan (S.C.C.), supra, footnote 24, per La Forest J. (dissenting).
Return to note 114 referrer
- Note 115
Chan (F.C.A.), supra, footnote 23, per Heald J.A.
Return to note 115 referrer
- Note 116
Chan (F.C.A.), supra, footnote 23, per Desjardins J.A. Compare Kwong, Kam Wang (Kwong, Kum Wun) v. M.C.I. (F.C.T.D., no. IMM-3464-94), Cullen, May 1, 1995.
When Chan came before the Supreme Court, both the majority and the minority declined to decide whether the claimant’s action of having a second child “was sufficiently expressive of a political opinion to independently found a refugee claim” (per Major J. and per La Forest J. (dissenting). Mr. Justice La Forest thought the evidence pointed to other possible connections to political opinion (at 647-8). However, His Lordship’s broaching of these possibilities and his reading of the evidence were disapproved of by Mr. Justice Major.
Return to note 116 referrer
- Note 117
Cheng, supra, footnote 110.
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- Note 118
This principle has been incorporated in s. 3(3)(f) of IRPA, which provides that “[t]his Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory.”
Return to note 118 referrer
- Note 119
Also see the reference to Daghighi in footnote 23, above.
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- Note 120
Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.).
Return to note 120 referrer
- Note 121
Namitabar (T.D.), supra, footnote 16.In Namitabar (F.C.A.), supra, footnote 16, 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..."
Return to note 121 referrer
- Note 122
Fathi-Rad, supra, footnote 16. In Rabbani, Farideh v. M.C.I. (F.C.T.D., no. IMM-2032-96), McGillis, June 3, 1997, the Refugee Division had concluded that a violation of Iran’s Islamic dress code could not form the basis of a well-founded fear of persecution. It had noted the dress conventions applicable to various groups elsewhere, had indicated that such conventions did not involve violations of basic human rights, and had said that the same was true of the Iranian dress code. The Court observed that, in making these comparisons, the Refugee Division had “... ignored, failed to appreciate or trivialized the persecutory aspects of the Islamic dress code ...” Furthermore, the Refugee Division had failed to acknowledge documentary evidence regarding the penalties for failure to comply with the code.
Return to note 122 referrer
- Note 123
Hazarat, Ghulam v. S.S.C. (F.C.T.D., no. IMM-5496-93), MacKay, November 25, 1994.
Return to note 123 referrer
- Note 124
Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60, (T.D.).
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- Note 125
Vidhani, supra, footnote 124. See also F.I. v.M.C.I. (F.C.T.D., no. IMM-4795-97), Muldoon, July 16, 1998 (a brute who rapes a woman is certainly not following traditional customary practices).
Return to note 125 referrer
- Note 126
Ameri, Ghulamali v. M.C.I. (F.C.T.D., no. IMM-3745-94), MacKay, January 30, 1996.
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- Note 127
Ameri, supra, footnote 126.
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- Note 128
Pour, Malek Mohammad Nagmeh Abbas v. M.C.I. (F.C.T.D., no. IMM-3650-95), Gibson, June 6, 1996.
Return to note 128 referrer
- Note 129
Namitabar (T.D.), supra, footnote 16. In Namitabar (F.C.A.), supra, footnote 16, 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..."
Return to note 129 referrer
- Note 130
Fathi-Rad, supra, footnote 16.
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- Note 131
Ali, Shaysta-Ameer, supra, footnote 8. One of the claimants was a nine-year-old girl who could have avoided persecution only by refusing to go to school, and thus forswearing the basic human right to an education. The Court considered her to be a Convention refugee. In a rather different context, the Court again indicated that the Refugee Division must not expect a claimant to buy peace for herself with an unconscionable self-denial (namely, continuing to lie about her lack of religious inclinations): Kazkan, Shahrokh Saeedi v. M.C.I. (F.C.T.D., no. IMM-1313-96), Rothstein, March 20, 1997.
Return to note 131 referrer
- Note 132
Fathi-Rad, supra, footnote 16. See also Namitabar (T.D.), supra, footnote 16.
Return to note 132 referrer
- Note 133
Namitabar (T.D.), supra, footnote 16. In Fathi-Rad, supra, footnote 16, the Convention ground invoked for the part of the claim pertaining to the dress code appears to have been membership in a particular social group; the social group in question was not expressly named in the Court’s reasons. In Namitabar (F.C.A.), supra, footnote 16, 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..."
Return to note 133 referrer
- Note 134
Sicak, Bucak v. M.C.I. (F.C., no. IMM-4699-02), Gauthier, December 11, 2003; 2003 FC 1457.
Return to note 134 referrer
- Note 135
Kaya, Bedirhan Mustafa v. M.C.I. (F.C., no. IMM-5565-03), Harrington, January 14, 2004; 2004 FC 45. See also Abbes, Lotfi v.M.C.I. (F.C., no. IMM-2989-06), Tremblay-Lamer, February 1, 2007; 2007 FC 112, where the Court found that the prohibition against wearing a veil in Tunisia did not constitute persecution.
Return to note 135 referrer
- Note 136
Kaya, supra, footnote 135, para. 18.
Return to note 136 referrer
- Note 137
Aykut, Ibrahim v. M.C.I. (F.C., no. IMM-5310-02), Gauthier, March 26, 2004; 2004 FC 466. See also Karaguduk, Abdulgafur v. M.C.I. (F.C., no. IMM-2695-03), Henegan, July 5, 2004; 2004 FC 958, where the Court affirmed the decision of the Pre-Removal Risk Assessment Officer who “found that although the Principal Applicant’s daughter experienced discrimination as a result of wearing headscarves, this discrimination did not amount of persecution.”
Return to note 137 referrer
- Note 138
Vidhani, supra, footnote 124. See also Gwanzura, Unity v. M.C.I. (F.C.T.D., no. IMM-1907-96), Heald, July 10, 1997.
Return to note 138 referrer
- Note 139
Ali, Shaysta-Ameer, supra, footnote 8.
Return to note 139 referrer
- Note 140
Annan, supra, footnote 120.
Return to note 140 referrer
- Note 141
Annan, supra, footnote 120. The issue of state protection was touched upon in Vidhani, supra, footnote 124 as well. The Court found that the Refugee Division had not dealt adequately with the issue, and in particular with the claimant’s explanation for not having sought police assistance.
Return to note 141 referrer
- Note 142
Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act, updated November 25, 1996, as continued in effect by the Chairperson on June 28, 2002 under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
Return to note 142 referrer
- Note 143
Butt, Abdul Majid (Majeed) v. S.G.C. (F.C.T.D., no. IMM-1224-93), Rouleau, September 8, 1993.; See also Thathaal, Sabir Hussain v. S.S.C. (F.C.T.D., no. A-1644-92), McKeown, December 15, 1993.
Return to note 143 referrer
- Note 144
Ahmad, Masroor v. M.E.I. (F.C.T.D., no. A-555-92), Rothstein, June 16, 1994.
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- Note 145
Rehan, Muhammad Arif v. M.C.I. (F.C.T.D., no. A-580-92), Gibson, October 18, 1996.
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- Note 146
[1990] Imm. A.R. 61 (Eng.C.A.). Quoted in Rehan, supra, footnote 145.
Return to note 146 referrer
- Note 147
Rehan, supra, footnote 145.
Return to note 147 referrer
- Note 148
Rehan, supra, footnote 145.
Return to note 148 referrer
- Note 149
Ahmed, Irfan v. M.C.I. (F.C.T.D., no. IMM-2725-96), Joyal, July 4, 1997.
Return to note 149 referrer
- Note 150
Mehmood, Nasir v. M.C.I. (F.C.T.D., no. IMM-2256-97), McGillis, May 14, 1998.
Return to note 150 referrer
- Note 151
Ahmad, Tahir v. M.C.I. (F.C., no. IMM-3148-11), Scott, January 24, 2012; 2012 FC 89.
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- Note 152
RAD TB0-01837, Bosveld, May 8, 2017.
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- Note 153
Bhatti, Naushaba v. S.S.C. (F.C.T.D., no. A-89-93), Jerome, September 14, 1993. Reported: Bhatti v. Canada (Secretary of State). (1994), 25 Imm. L.R. (2d) 275 (F.C.T.D.), at 278-279.
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- Note 154
Pour-Shariati v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 767 (T.D.). Rothstein J. certified a question as to whether indirect persecution constitutes a basis for a claim.
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- Note 155
Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (T.D.).
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- Note 156
Casetellanos, supra, footnote 155. On the other hand, in Nina, Razvan v. M.C.I. (F.C.T.D., no. A-725-92), Cullen, November 24, 1994, the Court, seems to have considered the mistreatment of the child, who was kidnapped in order to put pressure on his father, to be persecution of the father. In Hashmat, Suhil v. M.C.I. (F.C.T.D., no. IMM-2331-96), Teitelbaum, May 9, 1997, Mr. Justice Teitelbaum noted that earlier cases had rejected the principle of indirect persecution. However, he indicated that, where the Refugee Division was dealing with “the separate issue” of whether a the claimant would undergo undue hardship in journeying to a potential internal refuge (this issue being a subset of the “reasonableness” branch of the IFA test), relevance attached to the potential hardship of the wife and daughter who would accompany him on the journey: at page 5. In two Sri Lanka IFA cases the issue of indirect persecution was considered. In Jeyarajah, Vijayamalini v. M.C.I. (F.C.T.D., no. IMM-2473-98), Denault, March 17, 1999, it was noted that a person is not a refugee simply because a family member (husband) is persecuted. However, in Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983, 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’.” But see Dombele, Adelina v. M.C.I. (F.C.T.D., no. IMM-988-02), Gauthier, February 26, 2003; 2003 FCT 247 where the CRDD determined the claimant’s husband to be a refugee, but not the claimant or her daughters. The Court held that the panel was right in finding that the persecution affecting the claimant’s husband and which could affect the claimant and her daughters was indirect persecution, thus not persecution within the meaning of the Convention (Pour-Shariati).
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- Note 157
Pour-Shariati, Dolat v. M.E.I. (F.C.A., no. A-721-94), MacGuigan, Robertson, McDonald, June 10, 1997. Reported: Pour-Shariati v. Canada (Minister of Employment and Immigration) (1997), 39 Imm. L.R. (2d) 103 (F.C.A.); affirming [1995] 1 F.C. 767 (T.D.).
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- Note 158
An appropriate case was found in Tomov, Nikolay Harabam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005; 2005 FC 1527. The Court held that it is not enough to point to the persecution suffered by family members if it is unlikely to affect the claimant directly. Here, as a result of his common-law relationship with his Roma spouse, the claimant would be directly at risk as long as they remain together in a marital relationship.
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- Note 159
Cetinkaya, Lukman v. M.C.I. (F.C.T.D., no. IMM-2559-97), Muldoon, July 31, 1998.
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- Note 160
A claim based on indirect persecution may also be distinguished from a claim based on (direct) persecution by reason of membership in a particular social group which consists of a certain family. In Kaprolova, Elena v. M.C.I. (F.C.T.D., no. IMM-388-97), Teitelbaum, September 25, 1997, judicial review was granted because the Refugee Division had mistaken a social-group claim for an indirect-persecution claim. In Ndegwa, Joshua Kamau v. M.C.I. (F.C., no. IMM-6058-05), Mosley, July 5, 2006; 2006 FC 847, the Court held that the Board erred by treating the case as one of indirect persecution. The claimant was not just an unwilling spectator of violence against other family members. He may be at personal risk due to his membership in the family. See also Chapter 4, section 4.5.
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- Note 161
Pour-Shariati, supra, footnote 157; Casetellanos, supra, footnote 155; and Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998. In Shaikh, Sarwar v. M.C.I. (F.C.T.D., no. IMM-2489-98), Tremblay-Lamer, March 5, 1999, following Dawlatly, the Court held that the principle of family unity has not been incorporated in the definition of Convention refugee. There are other means in the ImmigrationAct, such as s.46.04(1) of ensuring that dependants of Convention refugees are granted permanent residence. See also Serrano, Roberto Flores v. M.C.I. (F.C.T.D., no. IMM-2787-98), Sharlow, April 27, 1999 where it was held that a family connection is not an attribute requiring Convention protection in the absence of an underlying Convention ground for the claimed persecution.
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- Note 162
Akinfolajimi, Adebimpe Joyce v. M.C.I. (F.C. no. IMM-5067-17), Gleeson, July 12, 2018; 2018 FC 722. Also see Douillard, Kerlange v. M.C.I. (F.C. no. IMM-4443-18), LeBlanc, March 29, 2019; 2019 FC 390.
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- Note 163
Chavez Carrillo, Diego Antonio v. M.C.I. (F.C., no. IMM-3170-12), Noël, October 22, 2012; 2012 FC 1228. See also El Achkar, Nasri Ibrahim v. M.C.I. (F.C., no. IMM-5768-12), Strickland, May 6, 2013; 2013 FC 472, where the Court noted that persecution against one family member does not automatically entitle all other family members to be considered refugees.
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- Note 164
Gribovskaia, Elena v. M.C.I. (F.C., no. IMM-5848-04), Rouleau, July 11, 2005; 2005 FC 956.
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