For additional material on the distinction between persecution and discrimination, see paragraph 54 of the UNHCR Handbook. A second criterion of persecution is that the inflicting of harm occurs with repetition or persistence, or in a systematic way. This requirement has been approved in Ward quoting Hathaway. Note 13 It also derives from the Court of Appeal decision in Rajudeen , Note 14 which is much-cited on this point:.
The definition of Convention refugee in the Immigration Act does not include a definition of "persecution". Accordingly, ordinary dictionary definitions may be considered. The Living Webster Encyclopedic Dictionary defines "persecute" as:. The Shorter Oxford English Dictionary contains, inter alia , the following definitions of "persecution":.
The applicant was not mistreated because of civil unrest in Sri Lanka but because he was a Tamil and a Muslim. Note The Court of Appeal later provided something of an elaboration in Valentin Note 14 :. Jurisprudence also recognizes that some sentences and forms of punishment of undue proportion by the state may be considered as persecution, such as in certain cases involving military evaders. These authorities notwithstanding, it would seem that persistence or repetition should not be regarded as a necessary element in all cases.
Some forms of harm are unlikely to be inflicted repeatedly e. In the case of Ranjha , Note 20 the Court has further commented that there should not be an "exaggerated emphasis" on the need for repetition and persistence.
Rather, the RPD should analyze the quality of incidents in terms of whether they constitute "a fundamental violation of human dignity". While the experiences of persons with similar profiles must be taken into account when considering whether ill treatment is systemic, each case must be determined on its own facts.
For a claim to succeed, the definition of Convention refugee requires that the persecution be linked to a Convention ground.
The Supreme Court of Canada noted in Ward that:. In Suvorova , the Court commented that in determining whether a nexus exists the claimant's narrative should be considered from the perspective of all Convention grounds. The Court noted that there is an obligation to consider all possible grounds for protection raised by the facts, even if they are not raised by a claimant. Indirect persecution see Chapter 9, section 9.
Accordingly, the Federal Court of Appeal in Pour-Shariati held, overruling Bhatti , Note 25 a case recognizing the concept of indirect persecution, that:.
In Granada Note 26 , the Court set out the only circumstances in which the family can be considered a particular social group as follows:. Persecution has been distinguished from random and arbitrary violence Note 28 and from suffering as a result of a criminal act or a personal vendetta.
Note 29 In a few of the cases where the claimant has been victimized by what might be characterized as a "common" crime, there has been some discussion of whether the mistreatment in question might qualify as "persecution". The Trial Division has said that most acts of persecution can be characterized as criminal, but that in an individual case the Refugee Division now Refugee Protection Division - RPD may nevertheless distinguish between criminal acts and persecution.
Note 30 In the case of Alifanova , Note 31 the Court has further commented that while most acts of persecution are criminal in nature, not all criminal acts can be considered acts of persecution. It continues to give the following example: "Extortion is a criminal act. Threats of bodily harm is a criminal act. Because these criminal acts are made by Kazakhs against Russians does not make the act one of persecution.
With respect to cases involving domestic abuse, the Court of Appeal in Mayers , Note 32 said that the Refugee Division might find domestic violence to be persecution, but in the circumstances of the case, the Court was not required to make that finding.
Note 33 The Trial Division, in a number of cases has regarded domestic abuse as persecution. Note 34 The cases often intertwine the discussion of whether domestic violence constitutes persecution with the question of whether victims of domestic violence constitute a particular social group. For example, in Resulaj , Note 35 the Court made the following observation:. Nothing prevents a woman from being both a victim of domestic violence and a victim of crime.
It is well established that a women [sic] subject to domestic violence constitute a particular social group entitled to convention refugee protection. Another earlier example is Aros , Note 36 where the Court noted:. Accepting that the applicant suffered physical and psychological abuse at the hands of her common law husband …, the panel made no overriding error in concluding she was not a member of a social group that faced persecution within the definition….
In assessing claims based on criminal acts, it is suggested that members inquire whether the harm is serious, Note 37 whether there is a serious possibility of the harm's occurring, whether the harm is inflicted for a Convention reason, Note 38 and whether state protection is available.
Note 39 The finding of state protection must be made on the basis of the evidence before the panel rather than on mere speculation. Note 40 See also Chapter 4, section 4. Serious human rights violations may in fact issue not only from higher authorities of the state, but also from subordinate state authorities, or from persons who are not attached to the government; and whichever is the case, the Convention may apply.
In order to be categorized as persecution, the harm need not emanate from the state, and the state need not be involved or be complicit in the perpetration of the harm. The fact that those who inflict mistreatment are schoolchildren and schoolyard bullies is not relevant to the question of whether the mistreatment amounts to persecution.
Note 42 Similarly, serious mistreatment inflicted by teenagers upon a minor claimant may not reasonably be regarded as mere pranks.
For more regarding the role of the state with respect to mistreatment of a claimant, see Chapter 6. A given episode of mistreatment may constitute discrimination or harassment, yet not be serious enough to be regarded as persecution. Note 44 Indeed, a finding of discrimination rather than persecution is within the jurisdiction of the RPD. Note 45 Even so, acts of harassment, none amounting to persecution individually, may cumulatively constitute persecution.
Therefore ,where the claimant has experienced more than one incident of mistreatment, the Refugee Protection Division may err if it only looks at each incident separately. Note 47 However, "it is insufficient for the RPD to simply state that it has considered the cumulative nature of the discriminatory acts", without any further analysis.
First, in Rajudeen v. Canada Minister of Employment and Immigration , 55 N. This requirement reflects the fact that prior incidents are capable of forming the foundation of present fear. See: Retnem v.
Canada Minister of Employment and Immigration , N. See: Bobrik v. Canada Minister of Citizenship and Immigration , 85 F. It is appropriate to consider both the actions of the government against the individual claimant and the overall atmosphere created by the state's intolerance.
The Federal Court in Liang , citing paragraphs 54 and 55 of the UNHCR Handbook affirmed that in the exercise of determining whether cumulative discrimination and harassment constitutes persecution it is necessary to evaluate the claimant's personal circumstances and vulnerabilities including age, health, and finances. In assessing whether cumulative acts of discrimination amount to persecution it is necessary first to decide whether an individual act constitutes harassment or is discriminatory.
The Federal Court in Hund Note 55 concluded that it would be an error to consider acts that are erroneously characterized as discriminatory in assessing whether cumulative acts of discrimination amount to persecution. Such acts could include abandonment by one's own family, general threats made at community meetings, and relocating.
Also, the "cumulative effect" should only consider incidents related to a Convention reason. Where state protection is available for the types of events alleged as discriminatory, the cumulative assessment is not necessary. In Munderere , Note 57 the Federal Court of Appeal stated that "there is nothing in paragraph 53 of the UNHCR Handbook which could justify an expansion of the cumulative effect of incidents doctrine to events that occurred in two different countries.
It is impossible to compile an exhaustive catalogue of forms of persecution. Furthermore, whether particular harm constitutes persecution may depend upon the facts of the individual case. Nevertheless, here are some of the more instructive observations that emerge from the case law. NOTE: The statements which follow should be approached with caution. To obtain context and understand the statements fully, the reader should consult the cases on which they are based. For example, the Court has noted that one of the relevant international human rights instruments is the Convention on the Rights of the Child CRC and that when determining whether a child claiming refugee status fits the definition of Convention refugee, decision-makers must inform themselves of the distinctive rights recognized in the CRC.
It is the denial of these rights which may determine whether or not a child has a well-founded fear of persecution. See Kim, Jae Wook v. Return to note 1 referrer. Gur, Irem v. See also Antoine, Belinda v. The Court held that the expectation that an individual should practice discretion with respect to her sexual orientation is perverse, as it requires the individual to repress an immutable characteristic. See also Akpojiyovwi, Evelyn Oboaguonona v. Also, in A. IMM , Mactavish, April 6, ; FC at paragraph 11, although the Court did not come to a conclusion, it questioned whether it would be reasonable to expect an individual to remain single and childless in order to avoid the risk of pregnancy, childbirth, and reinfibulation, or whether that would constitute a serious interference with basic human rights.
Return to note 2 referrer. Sagharichi, Mojgan v. Reported: Sagharichi v. Return to note 3 referrer. Canada Attorney General v. Ward, [] 2 S.
Return to note 4 referrer. Ward, ibid. See also Cheung v. Canada Minister of Employment and Immigration , [] 2 F. Return to note 5 referrer. Chan v. Canada Minister of Employment and Immigration , [] 3 S. Return to note 6 referrer. Chan, ibid. The majority of the Court decided the case on other grounds and did not rule explicitly on this issue. For a more detailed discussion of the Chan judgment, see Chapter 9, section 9. With respect to considering Canadian standards or laws see Antonio, Pacato Joao v.
IMM , Nadon, September 27, , at Return to note 7 referrer. El Khatib, Naif v. The appeal was dismissed by the Federal Court of Appeal: M. El Khatib, Naif F. Return to note 8 referrer. Sagharichi, supra, footnote 3, at 2 unreported ; Saddouh, supra , footnote 3. See also Kwiatkowsky v. Canada Minister of Employment and Immigration , [] 2 S. IMM , Richard, January 30, , at 4. Return to note 9 referrer.
Sagharichi, supra , footnote 3, at 2, per Marceau J. Even though the claimant may not be able to point to an individual episode of mistreatment which could be characterized as persecution, the claimant may still have experienced persecution or have good grounds for fearing persecution: see the discussion of cumulative acts in section 3.
Return to note 10 referrer. Nejad, Hossein Hamedi v. IMM , Muldoon, July 29, , at 2. Canada Minister of Employment and Immigration , [] 1 F. The Court noted in Bayrak, Ibrahim v. Return to note 11 referrer. Compare these lines with the affirmation in Ward. Canada Minister of Employment and Immigration , [] 3 F. Return to note 12 referrer. See excerpt reproduced at pages of this chapter. Return to note 13 referrer. Rajudeen, Zahirdeen v. A , Heald, Hugessen, Stone concurring , July 4, Reported: Rajudeen v.
Return to note 14 referrer. Return to note 15 referrer. Valentin v. Return to note 16 referrer. See also Kadenko, Ninal v. Reported: Kadenko v. Canada Solicitor General , 32 Imm.
Kadenko, Ninal F. The Court of Appeal reversed the decision on the issue of state protection and did not deal with the persecution findings. In Ahmad, Rizwan v. IMM , Teitelbaum, March 14, , at paragraph 23, the Court distinguished between systematic events and ones that were only periodic.
Return to note 17 referrer. Abramov, Andrei v. Return to note 18 referrer. In two decisions, the Trial Division certified questions regarding the need for persistence, the questions being almost identical in the two cases: Murugiah, Rahjendran v.
The Federal Court of Appeal granted a motion to dismiss the appeal in Murugiah on April 4, , on the grounds that the appeal was moot F. In Rajah, the Federal Court of Appeal dismissed an application for an extension of time to file a notice of appeal February 1, Essentially the same question was proposed for certification in Muthuthevar, Muthiah v. IMM , Cullen, February 15, Cullen J. However, note the discussion in Chapter 9, section 9.
Return to note 19 referrer. Ranjha, Muhammad Zulfiq v. Return to note 20 referrer. Sztojka, Andras v. Return to note 21 referrer.
Ward, supra , footnote 4, at See also the excerpt from Rajudeen, supra , footnote 14, reproduced in section 3. And see Karaseva, Tatiana v.
IMM , Teitelbaum, November 26, , at paragraphs 10, , and In Molaei, Farzam v. IMM , Muldoon, January 28, , the Court noted that there must be a nexus between the personal situation of the claimant and the general situation of the country of nationality in which the claimant fears persecution.
And in Cetinkaya, Lukman v. IMM , Muldoon, July 31, , the Court noted that while certain members of the PKK in Turkey may face persecution, it is for the claimant to demonstrate that she falls within that class of individuals who face persecution, as well as to provide the necessary link between her actions and the persecution feared. See also Li, Qing Bing v.
IMM , Reed, August 27, , where the claimant stated, among other things, that the government of China does not provide basic medical services, nor does it allow him an adequate opportunity to earn a living. Return to note 22 referrer. Suvorova, Galina v. Return to note 23 referrer. Bhatti, Naushaba v. A , Jerome, September 14, Reported: Bhatti v. Canada Secretary of State , 25 Imm.
Return to note 24 referrer. Pour-Shariati, Dolat v. Reported: Pour-Shariati v. Canada Minister of Employment and Immigration , 39 Imm. Followed in Kanagalingam, Uthayakumari v. Return to note 25 referrer. Granada, Armando Ramirez v. Return to note 26 referrer. This concept of the family as a particular social group was further considered in Ndegwa, Joshua Kamau v.
Return to note 27 referrer. Abrego, Apolonio Paz v. A , Hugessen, Linden, Holland, February 18, Return to note 28 referrer. See Chapter 4, section 4. See also Atwal, Mohinder Singh v. IMM , Nadon, November 17, , where the Court agreed with the CRDD that there was no nexus between the applicant's claim and a Convention ground as the alleged acts of persecution were the result of personal vengeance and not the result of the claimant's political opinions. Return to note 29 referrer.
Cortez, Delmy Isabel v. See also Pierre-Louis, Edy v. IMM , Richard, January 30, , at 3 police corruption ; and Karaseva, supra , footnote 22, at , and crimes allegedly with ethnic motivation. Return to note 30 referrer. Alifanova, Nathalia v. IMM , Teitelbaum, December 11, Return to note 31 referrer. Canada Minister of Employment and Immigration v. Mayers , [] 1 F. Return to note 32 referrer. Return to note 33 referrer. Diluna, Roselene Edyr Soares v. IMM , Gibson, March 14, , at 4.
Reported: Diluna v. Canada Minister of Employment and Immigration , 29 Imm. In an earlier decision, the Trial Division seemed inclined to the view that the abuse involved in the case did constitute persecution: Narvaez v. Canada Minister of Citizenship and Immigration , [] 2 F. Return to note 34 referrer.
Resulaj, Blerina v. Return to note 35 referrer. Aros, Angelica Elizabeth Navarro v. Return to note 36 referrer. See, for example, Ravji, Shahsultan Meghji v. A , McGillis, August 4, the particular harm in question should have been considered by the Refugee Division in its assessment of cumulative acts. Return to note 37 referrer. See, for example: Gomez-Rejon, Bili v.
IMM , Jerome, March 10, In Rawji, Riayz v. IMM , Gibson, November 25, , where crime had befallen the claimant and police had refused to investigate unless bribed, the Court indicated, at 2, that neither persecution nor nexus to a Convention ground was involved.
See also Chapter 4, section 4. In Kaur, Biba v. IMM , Jerome, January 17, , the claimant had been raped while in detention. In Mousavi-Samani, Nasrin v. IMM , Heald, September 30, , the claimants had exposed fraud perpetrated by state officials, and feared retaliation and prosecution.
As in Rawji , the Refugee Division had found both persecution and nexus to be lacking, and the Court upheld these findings. In Zefi, Sheko v. Return to note 38 referrer. See, for example, Dragulin, Constantin Marinescu v.
A , Jerome, January 25, , at 2. Return to note 39 referrer. Ansar, Iqbal v. IMM , Campbell, July 22, Return to note 40 referrer. Ward, supra , footnote 4, at , , ; Chan, supra, footnote 6, per La Forest dissenting at Return to note 41 referrer. Bougai, Zoia a. Bougai, Zoya v. IMM , Gibson, June 15, , at 6. Return to note 42 referrer. Malchikov, Alexander v. Return to note 43 referrer.
Moudrak, Vanda v. As such, there is no need to add an additional ground to the Convention definition. In attempting to apply the criteria of the refugee definition in the course of refugee status determination procedures, it is important to approach the assessment holistically, and have regard to all the relevant circumstances of the case.
Making generalisations about women or men is not helpful and in doing so, critical differences, which may be relevant to a particular case, can be overlooked. The elements of the definition discussed below are those that require a gender-sensitive interpretation. Other criteria e.
What amounts to a well-founded fear of persecution will depend on the particular circumstances of each individual case. While female and male applicants may be subjected to the same forms of harm, they may also face forms of persecution specific to their sex. International human rights law and international criminal law clearly identify certain acts as violations of these laws, such as sexual violence, and support their characterisation as serious abuses, amounting to persecution.
In this sense, international law can assist decision-makers to determine the persecutory nature of a particular act. There is no doubt that rape and other forms of gender-related violence, such as dowry-related violence, female genital mutilation, domestic violence, and trafficking, are acts which inflict severe pain and suffering — both mental and physical — and which have been used as forms of persecution, whether perpetrated by State or private actors.
Assessing a law to be persecutory in and of itself has proven to be material to determining some gender-related claims. This is especially so given the fact that relevant laws may emanate from traditional or cultural norms and practices not necessarily in conformity with international human rights standards.
However, as in all cases, a claimant must still establish that he or she has a well-founded fear of being persecuted as a result of that law. This would not be the case, for instance, where a persecutory law continues to exist but is no longer enforced. Even though a particular State may have prohibited a persecutory practice e.
In such cases, the practice would still amount to persecution. Where the penalty or punishment for non-compliance with, or breach of, a policy or law is disproportionately severe and has a gender dimension, it would amount to persecution. Even if the law is one of general applicability, circumstances of punishment or treatment cannot be so severe as to be disproportionate to the objective of the law.
Severe punishment for women who, by breaching a law, transgress social mores in a society could, therefore, amount to persecution. Even where laws or policies have justifiable objectives, methods of implementation that lead to consequences of a substantially prejudicial nature for the persons concerned, would amount to persecution.
For example, it is widely accepted that family planning constitutes an appropriate response to population pressures. However, implementation of such policies, through the use of forced abortions and sterilisations, would breach fundamental human rights law.
Such practices, despite the fact that they may be implemented in the context of a legitimate law, are recognised as serious abuses and considered persecution. It would, for instance, amount to persecution if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.
Significant to gender-related claims is also an analysis of forms of discrimination by the State in failing to extend protection to individuals against certain types of harm.
If the State, as a matter of policy or practice, does not accord certain rights or protection from serious abuse, then the discrimination in extending protection, which results in serious harm inflicted with impunity, could amount to persecution. Refugee claims based on differing sexual orientation contain a gender element. In many such cases, the claimant has refused to adhere to socially or culturally defined roles or expectations of behaviour attributed to his or her sex.
The most common claims involve homosexuals, transsexuals or transvestites, who have faced extreme public hostility, violence, abuse, or severe or cumulative discrimination.
Where homosexuality is illegal in a particular society, the imposition of severe criminal penalties for homosexual conduct could amount to persecution, just as it would for refusing to wear the veil by women in some societies. Even where homosexual practices are not criminalised, a claimant could still establish a valid claim where the State condones or tolerates discriminatory practices or harm perpetrated against him or her, or where the State is unable to protect effectively the claimant against such harm.
Trafficking for the purposes of forced prostitution or sexual exploitation as a form of persecution. Some trafficked women or minors may have valid claims to refugee status under the Convention. The forcible or deceptive recruitment of women or minors for the purposes of forced prostitution or sexual exploitation is a form of gender-related violence or abuse that can even lead to death. It can be considered a form of torture and cruel, inhuman or degrading treatment.
In individual cases, being trafficked for the purposes of forced prostitution or sexual exploitation could therefore be the basis for a refugee claim where the State has been unable or unwilling to provide protection against such harm or threats of harm. There is scope within the refugee definition to recognise both State and non-State actors of persecution.
While persecution is most often perpetrated by the authorities of a country, serious discriminatory or other offensive acts committed by the local populace, or by individuals, can also be considered persecution if such acts are knowingly tolerated by the authorities, or if the authorities refuse, or are unable, to offer effective protection.
The well-founded fear of being persecuted must be related to one or more of the Convention grounds. The Convention ground must be a relevant contributing factor, though it need not be shown to be the sole, or dominant, cause. In many gender-related claims, the difficult issue for a decision-maker may not be deciding upon the applicable ground, so much as the causal link: that the well-founded fear of being persecuted was for reasons of that ground.
Attribution of the Convention ground to the claimant by the State or non-State actor of persecution is sufficient to establish the required causal connection. Discrimination and societal disapproval may not be sufficient in themselves to establish persecution.
However, more general guidance is given in the form of emphasis on the absence of state protection. He points out that, in establishing whether there is persecution, the failure of a state to provide protection as a result of its discriminatory policy is a relevant factor.
Hoffman provides the example of a shopkeeper whose livelihood is destroyed by opportunistic rivals. The fact that the shop keeper is not protected by the state in Nazi Germany is on account of the fact he is Jewish.
As is clear from these comments, although discrimination will not amount to persecution, it is a substantial contributing factor, including in the cases of governments who refrain from acting to protect threatened groups.
Although discrimination is not enough to constitute persecution for the purposes of an asylum claim, it is a relevant factor. In particular, the absence of state intervention to protect from persecution may be especially relevant. For expert advice regarding an application for asylum or asylum appeal , contact our asylum and refugee protection barristers on or complete our enquiry form below.
To arrange an initial consultation meeting, call our immigration barristers on or fill out the form below.
0コメント