Chapter 3 - Persecution

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  1. 3.1. Generally
    1. 3.1.1. Definition and general principles
      1. 3.1.1.1. Serious harm
      2. 3.1.1.2. Repetition and persistence
      3. 3.1.1.3. Nexus
      4. 3.1.1.4. Common crime or persecution
      5. 3.1.1.5. Agent of persecution
    2. 3.1.2. Cumulative acts of discrimination and/or harassment in contrast with persecution
    3. 3.1.3. Forms of persecution
      1. 3.1.3.1. Some judicial observations

3. Persecution

3.1. Generally

3.1.1. Definition and general principles

Like other terms in the Convention refugee definition, "persecution" is a word whose meaning is neither self-evident nor defined in the Immigration and Refugee Protection Act (IRPA). Therefore, it has fallen to the courts to identify the boundaries of the word. Case-law has not only labelled specific behaviours as instances of persecution, but also has gone some distance toward identifying general hallmarks that must be present, or criteria that must be met, in order for actions or omissions to constitute persecution.

In determining the meaning of persecution, it is useful to remember that Section 3(3)(f) of the Immigration and Refugee Protection Act states that the Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory.Note 1

Claimants cannot be asked to renounce their deeply held beliefs or refrain from exercising their fundamental rights to avoid persecution and as a price to live in security. It is precisely to avoid this result that state parties have agreed to the United Nations Convention Relating to the Status of Refugees.Note 2

3.1.1.1. Serious Harm

First, to be considered persecution, the mistreatment suffered or anticipated must be serious.Note 3 And in order to determine whether particular mistreatment would qualify as "serious", one must examine:

  1. what interest of the claimant might be harmed; and
  2. to what extent the subsistence, enjoyment, expression or exercise of that interest might be compromised.

This approach has been approved by the courts, which have equated the notion of a serious compromising of interest with a key denial of a core human right. Thus, in Ward,Note 4 the Supreme Court said as follows:

Underlying the Convention is the international community's commitment to the assurance of basic human rights without discrimination. This is indicated in the preamble to the treaty as follows:

CONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights - have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.

This theme … provides an inherent limit to the cases embraced by the Convention. Hathaway, - at p. 108, thus explains the impact of this general tone on the treaty on refugee law:

The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way and that the sustained or systemic denial of core human rights is the appropriate standard.

This theme sets the boundaries for many of the elements of the definition of Convention "refugee". "Persecution", for example, undefined in the Convention, has been ascribed the meaning of "sustained or systemic violation of basic human rights demonstrative of a failure of state protection"; see Hathaway, - at pp. 104-105. So too Goodwin-Gill, … at p. 38 observes that "comprehensive analysis requires the general notion [of persecution] to be related to developments within the broad field of human rights". This has recently been recognized by the Federal Court of Appeal in the Cheung case.Note 5

In Chan,Note 6 La Forest J. (in dissent) reiterated that "[t]he essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way." Mr. Justice La Forest also said:

These basic human rights are not to be considered from the subjective perspective of one country ... By very definition, such rights transcend subjective and parochial perspectives and extend beyond national boundaries. This does not mean, however, that recourse to the municipal law [i.e. domestic or internal law] of the admitting nation may not be made. For such municipal law may well animate a consideration of whether the alleged feared conduct fundamentally violates basic human rights.Note 7

If the conduct does amount to persecution, there is no further requirement that the persecution be dramatic or appalling or horrendous,Note 8 unless the issue in the case involves the application of section 108(4) of the IRPA (section 2(3) of the former Immigration Act) (see Chapter 7).

The requirement that the harm be serious has led to a distinction between persecution on the one hand, and discrimination or harassment on the other, with persecution being characterized by the greater seriousness of the mistreatment which it involves.Note 9 Discrimination and harassment are sometimes conceived of as being distinct from persecution; alternatively, some references to persecution and discrimination imply that persecution is a subset of discrimination; but in either case, what distinguishes persecution - whether from discrimination or non-persecutory discrimination - is the degree of seriousness of the harm. The Court of Appeal has observed that "the dividing line between persecution and discrimination or harassment is difficult to establish."Note 10

As to the particular susceptibilities of a given claimant, the Court in NejadNote 11 said the following:

The CRDD did recognize and the Court agrees that there may be certain circumstances in which the particular characteristics or circumstances of a claimant ... might affect the assessment of whether certain acts or treatments are persecutory. [To] ... the extent that an agent of persecution intentionally plays upon or exploits the fact that a person suffers from a particular frailty or condition in order to cause harm, an act not normally or inherently persecutorial, may be transformed into an act of persecution.

That is beautiful in theory, but who knows what is the intention of the persecutor? Who knows what is the particular knowledge of the persecutor? One must look at the act and the effect.Note 12 And in this case, in particular, because of the old age of the applicants, it should have been more obvious to the CRDD panel that the effect upon them was that of persecution.

For additional material on the distinction between persecution and discrimination, see paragraph 54 of the UNHCR Handbook.

3.1.1.2. Repetition and Persistence

A second criterion of persecution is that the inflicting of harm occurs with repetition or persistence, or in a systematic way.Note 13 This requirement has been approved in Ward (quoting Hathaway).Note 14 It also derives from the Court of Appeal decision in Rajudeen,Note 15 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:

"To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship."

The Shorter Oxford English Dictionary contains, inter alia, the following definitions of "persecution":

"A particular course or period of systematic infliction of punishment directed against those holding a particular (religious belief); persistent injury or annoyance from any source."

...[the evidence] establishes beyond doubt a lengthy period of systematic infliction of threats and of personal injury. The applicant was not mistreated because of civil unrest in Sri Lanka but because he was a Tamil and a Muslim.Note 16

The Court of Appeal later provided something of an elaboration in ValentinNote 17:

…it seems to me … that an isolated sentence can only in very exceptional cases satisfy the element of repetition and relentlessness found at the heart of persecution (cf. Rajudeen…) …Note 18

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.Note 19

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.g., female genital mutilation), or are simply incapable of being repeated (e.g., the killing of the claimant's family as a form of retribution against the claimant); nevertheless, they are so severe that their characterization as persecution seems beyond dispute.Note 20

In the case of Ranjha,Note 21 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.Note 22

3.1.1.3. Nexus

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:

… the international community did not intend to offer a haven for all suffering individuals. The need for "persecution" in order to warrant international protection, for example, results in the exclusion of such pleas as those of economic migrants, i.e. individuals in search of better living conditions, and those of victims of natural disasters, even when the home state is unable to provide assistance. …Note 23

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.Note 24

Indirect persecution (see Chapter 4) does not constitute persecution within the meaning of the definition of Convention refugee as there is no personal nexus between the claimant's alleged fear and a Convention ground. Accordingly, the Federal Court of Appeal in Pour-Shariati held, overruling Bhatti,Note 25 a case recognizing the concept of indirect persecution, that:

We accordingly overrule Bhatti's recognition of the concept of indirect persecution as a principle of our refugee law. In the words of Nadon, J. in Casetellanos v. Canada (Solicitor General) (1994), 89 F.T.R. 1, 11, "since indirect persecution does not constitute persecution within the meaning of Convention refugee, a claim based on it should not be allowed." It seems to us that the concept of indirect persecution goes directly against the decision of this Court in Rizkallah v. Canada, A-606-90, decided 6 May 1992, [1992] F.C.J. No. 412, where it was held that there had to be a personal nexus between the claimant and the alleged persecution on one of the Convention grounds. One of these grounds is, of course, a "membership in a particular social group," a ground which allows for family concerns in on [sic] appropriate case.Note 26

In GranadaNote 27, the Court set out the only circumstances in which the family can be considered a particular social group as follows:

[16] The family can only be considered to be a social group in cases where there is evidence that the persecution is taking place against the family members as a social group: [citations omitted]. However, membership in the social group formed by the family is not without limits, it requires some proof that the family in question is itself, as a group, the subject of reprisals and vengeance…Note 28.
3.1.1.4. Common Crime or Persecution​

Persecution has been distinguished from random and arbitrary violenceNote 29 and from suffering as a result of a criminal act or a personal vendetta.Note 30 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 31 In the case of Alifanova,Note 32 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." Some of the cases in this area involve personal vendettas, or the misuse of official position, or the witnessing of criminal acts.

With respect to cases involving domestic abuse, the Court of Appeal in Mayers,Note 33 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 34 The Trial Division, in a number of cases has regarded domestic abuse as persecution.Note 35 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 36 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. [Diluna; Narvaez]

Another earlier example is Aros,Note 37 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…

Persecution based on the ground of ‘particular social group – gender’ may arise from criminal acts of gender-based violence as they are “crimes grounded in the status of women in society”.Note 38 In assessing claims based on criminal acts, it is suggested that members inquire whether the harm is serious,Note 39 whether there is a serious possibility of the harm's occurring, whether the harm is inflicted for a Convention reason,Note 40 and whether state protection is available.Note 41 The finding of state protection must be made on the basis of the evidence before the panel rather than on mere speculation.Note 42 See also Chapter 4, section 4.7.

3.1.1.5. Agent of Persecution

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.Note 43

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 44 Similarly, serious mistreatment inflicted by teenagers upon a minor claimant may not reasonably be regarded as mere pranks.Note 45

For more regarding the role of the state with respect to mistreatment of a claimant, see Chapter 6.

3.1.2. Cumulative acts of discrimination and/or harassment in contrast with persecution

A given episode of mistreatment may constitute discrimination or harassment, yet not be serious enough to be regarded as persecution.Note 46 Indeed, a finding of discrimination rather than persecution is within the jurisdiction of the RPD.Note 47 Even so, acts of harassment, none amounting to persecution individually, may cumulatively constitute persecution.Note 48 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 49

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In conducting an analysis of cumulative discrimination, "it is insufficient for the RPD to simply state that it has considered the cumulative nature of the discriminatory acts", without any further analysis.Note 50 It is necessary to consider whether the effects of cumulative discrimination for the claimant based on their personal experiences amounted to persecution.Note 51 Similarly, “where the RPD fails to address an incident supporting a claim of persecution in the course of its analysis and comes to a simple conclusion that the cumulative effect of individual incidents of discrimination and violence do not amount to persecution, the RPD opens the door to a reviewing court’s intervention.”Note 52 The Court has also commented on the need to consider whether the repeated incidents of harassment in the past may lead to a serious possibility of persecution in the future.Note 53

In Mundereve,Note 54 the Federal Court of Appeal quoted with approval the following principles set out by the Federal Court in Mete:Note 55

[4] The following three legal principles are not controversial. First, in Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129, the Federal Court of Appeal defined persecution in terms of: to harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently; to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship; a particular course or period of systematic infliction of punishment directed against those holding a particular belief; and persistent injury or annoyance from any source.

[5] Second, in cases where the evidence establishes a series of actions characterized to be discriminatory, and not persecutory, there is a requirement to consider the cumulative nature of that conduct. 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) (1991), 132 N.R. 53 (F.C.A.). This is also expressed in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status ("Handbook on Refugee Status") in the following terms, at paragraph 53: [Citation omitted]

[6] Third, it is an error of law for the RPD not to consider the cumulative nature of the conduct directed against a claimant. See: Bobrik v. Canada (Minister of Citizenship and Immigration)(1994), 85 F.T.R. 13 (T.D.) at paragraph 22, and the authorities there reviewed by my colleague Madam Justice Tremblay-Lamer.

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.Note 56

See also paragraphs 53, 54, 55, 67 and 201 of the UNHCR Handbook.

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.Note 57 Allegations of incidents that may cumulatively amount to persecution must also be considered in the context of any applicable Guidelines, such as the Gender Guidelines.Note 58

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. In addition to incidents of physical assault, other areas of life in which discrimination or harassment can occur include in education, employment, public spaces, housing and healthcare.Note 59

The Federal Court in HundNote 60 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.Note 61

In Munderere,Note 62 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." The Court held that, when analyzing cumulative grounds, "[a]s a matter of principle, events which occur in a country other than that in respect of which a claimant seeks refugee status should not be considered."Note 63 However, the Court added the following caveat: 'except where the events which occur in a country other than that in respect of which a claimant seeks refugee status are relevant to the determination of whether the country where a claimant seeks refugee status can protect him or her from persecution."Note 64

3.1.3. Forms of persecution

3.1.3.1. Some judicial observations

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.)

  • Torture, beatings and rape are prime examples of persecution.Note 65
  • The term "discrimination" is not adequate to describe behaviour which includes acts of violence and death threats.Note 66
  • Death threats may constitute persecution even if the persons making the threats refrain from carrying them out.Note 67 Whether death threats do amount to acts of persecution depends upon the personal circumstances of the claimant.Note 68
  • When imposed for certain offences, the death penalty may not constitute persecution.Note 69
  • Forced or strongly coerced sterilization constitutes persecution, whether the victim is a womanNote 70 or a man.Note 71 Forced abortion also constitutes persecution,Note 72 as does the forcible insertion of an IUD.Note 73 However, a pecuniary penalty for having a child in violation of China’s two-child policy is not persecutory in nature.Note 74
  • Female circumcision is a "cruel and barbaric practice", a "horrific torture", and an "atrocious mutilation".Note 75
  • For "persecution" to exist within the meaning of the definition, it is not necessary for the subject to have been deprived of his freedom.Note 76
  • There may be persecution even if there is no physical harm or mistreatment.Note 77
  • Psychological violence may be an element in persecution.Note 78
  • The bringing of a trumped-up charge, and interference in the due process of law, may be aspects of persecutory treatment.Note 79
  • The fact that the claimant, along with all of his or her co-nationals, suffers curtailment of freedom of speech, in and of itself does not amount to persecution.Note 80
  • Barring one claimant from obtaining citizenship and from taking part in political activities, and barring a second claimant (a citizen) from voting and from otherwise participating in the political process, did not constitute persecution where the claimants enjoyed numerous other rights.Note 81
  • Punishment for violation of a law concerning dress may constitute persecution.Note 82
  • Denial of a right of return may constitute an act of persecution.Note 83
  • Simple statelessness does not make one a Convention refugee.Note 84
  • Economic penalties may be an acceptable means of enforcing a state policy,Note 85 where the claimant is not deprived of his or her right to earn a livelihood.Note 86
  • Where the state interferes substantially with the claimant's ability to find work, the possibility of the claimant's finding illegal employment is not an acceptable remedy.Note 87
  • Permanently depriving an educated professional of his or her accustomed occupation and limiting the person to farm and factory work constituted persecution.Note 88 In contrast, the inability to work in the field of one's choosing was found not to constitute persecution.Note 89
  • Treatment at work such as being more closely scrutinized, being given low profile jobs and being regularly questioned do not add up to persecution.Note 90
  • By itself, confiscation of property is not sufficiently grave to constitute persecution.Note 91
  • Serious economic deprivations may be components of persecution.Note 92
  • Extortion may be one of the indicia of persecution, depending upon the reason for the extortion and the motivation of the claimant in paying.Note 93
  • The fact a child has a different nationality from his or her parents and therefore may be returned to a different country is not a form of persecution.Note 94
  • A child who would experience hardships including deprivation of medical care, education opportunities, employment opportunities and food would suffer concerted and severe discrimination, amounting to persecution.Note 95
  • A child who is made to witness appalling physical and psychological domestic violence is a victim of abuse and the RPD must assess the child’s risk of persecution.Note 96
  • Education is a basic human right and a nine-year-old claimant who could have avoided persecution only by refusing to go to school was deemed to be a Convention refugee.Note 97
  • It is not an act of persecution to ban certain groups of children from attending public schools, if they are permitted to have their own schools.Note 98
  • Forcing a woman into a marriage violates one of her basic human rights.Note 99
  • An impediment to the claimant’s marrying in her homeland did not constitute persecution.Note 100 However, the RPD should consider whether preventing a claimant from getting married or from having further children by being threatened with forced sterilization might, in and of itself, amount to persecution.Note 101
  • Legal restrictions allowing certain categories of people to settle only in certain areas did not constitute persecution.Note 102
  • A law which requires a person to forsake the principles or practices of his or her religion is patently persecutory, so long as the principles or practices in question are not unreasonable.Note 103 Sanctions such as a short detention, fine or re-education term, which might have been imposed upon the claimant for practising his religion or belonging to a particular religious community, were serious measures of discrimination and constituted persecution.Note 104
  • Injury to pride and political sensibilities did not amount to a violation of security of the person.Note 105
  • Lamentable rough treatment, involving detention and interrogation, in a country that is experiencing serious terrorist activity, does not of itself amount to persecution.Note 106
  • Minor children who are expected to provide support for other family members, after being smuggled into Canada, are not persecuted by their parents.Note 107
  • The act of being illegally trafficked is not in itself persecution simply because the claimant is a minor.Note 108
  • Restrictions by a state on a foreign spouse's entry into its territory that are not made on a discriminatory basis do not constitute persecution.Note 109
  • Forcing non-religious or secular persons to adhere to strict Islamic codes will not generally amount to persecution (particularly where there is evidence of significant improvements).Note 110
  • Insults and attacks on a conscientious objector while in prison do not constitute persecution.Note 111

Persecution may exist where services for the mentally ill are abysmal and the population regards them as being possessed by “supernatural evil”.Note 112 Similarly, where the evidence demonstrated both that widespread discrimination and mistreatment of those with mental illness existed, and that a critical shortage of medical professionals and facilities existed to treat such illness, and where the reasons given for the claimant’s ability to overcome these problems were speculative, it was unreasonable to conclude that there was no persecution. Note 113 However, where a claimant was autistic and had ADHD, but had received medical treatment and could resume the same, persecution was not made out.Note 114​

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Notes

Note 1

For example, the Court has noted that one of the relevant international human rights instruments is the Convention on the Rights of the Child (CRC) and that when determining whether a child claiming refugee status fits the definition of Convention refugee, decision-makers must inform themselves of the distinctive rights recognized in the CRC. It is the denial of these rights which may determine whether or not a child has a well-founded fear of persecution. See Kim, Jae Wook v. M.C.I. (F.C., no. IMM-4200-09), Shore, February 12, 2010; 2010 FC 149. See also the IRB Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, which states at note 8 that: “In determining the child's fear of persecution, the international human rights instruments, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child, should be considered in determining whether the harm which the child fears amounts to persecution.” See also the Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution which in Part B sets out the relevant international human rights instruments applicable to the determination of gender-specific forms of persecution.

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Note 2

Gur, Irem v. M.C.I. (F.C., no. IMM-6294-11), de Montigny, August 14, 2012; 2012 FC 992. See also Antoine, Belinda v. M.C.I. (F.C., no. IMM-4967-14), Fothergill, June 26, 2015; 2015 FC 795, where the PRRA Officer had held that in order to avoid persecution, the applicant must continue to avoid an overtly lesbian lifestyle. The Court held that the expectation that an individual should practice discretion with respect to her sexual orientation is perverse, as it requires the individual to repress an immutable characteristic. See also Akpojiyovwi, Evelyn Oboaguonona v. M.C.I. (F.C. no. IMM-200-18), Roussel, July 17, 2018; 2018 FC 745 at para 9. Also, in A.B. v M.C.I. (F.C. no. IMM-3251-17), Mactavish, April 6, 2018; 2018 FC 373 at para 11, although the Court did not come to a conclusion, it questioned whether it would be reasonable to expect an individual to remain single and childless in order to avoid the risk of pregnancy, childbirth, and reinfibulation, or whether that would constitute a serious interference with basic human rights.

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Note 3

Sagharichi, Mojgan v. M.E.I. (F.C.A., no. A-169-91), Isaac, Marceau, MacDonald, August 5, 1993, at 2. Reported: Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.); Leave to appeal to the Supreme Court of Canada was denied without reasons on February 17, 1994 [1993] S.C.C.A. No. 461 (QL); Saddouh (Kaddouh), Sabah v. M.E.I. (F.C.T.D., no. IMM-2200-93), Denault, February 2, 1994, where the Court dealt with threats and acts of extortion.

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Note 4

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 20 Imm. L.R. (2d) 85.

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Note 5

Ward, ibid., at 733-734. See also Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), at 324-325.

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Note 6

Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, at 635.

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Note 7

Chan, ibid., at 635.  The majority of the Court decided the case on other grounds and did not rule explicitly on this issue.  For a more detailed discussion of the Chan judgment, see Chapter 9 .  With respect to considering Canadian standards or laws see Antonio, Pacato Joao v. M.E.I. (F.C.T.D., no. IMM-1072-93), Nadon, September 27, 1994, at 11-12.  See also the UNHCR Handbook, para 60. See also Abu Dakka v. Canada (Citizenship and Immigration), 2020 FC 625, at para 24, where the Court found that the RPD erred by failing to consider evidence specific to female applicants and disposing of their claim by stating that they were expected to follow “prevailing cultural norms in Saudi Arabia”. The Court held that this is dangerous as it “implies that laws of general application or the “prevailing cultural norms” have to be assessed in accordance with the country of origin’s standards, not against Canadian or even international human rights standards. This is not the case”.

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Note 8

El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994, at 4. The appeal was dismissed by the Federal Court of Appeal: M.C.I. v. El Khatib, Naif (F.C.A., no. A-592-94), Strayer, Robertson, McDonald, June 20, 1996.

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Note 9

Sagharichi, supra, note 3, at 2 (unreported); Saddouh, supra, note 3. See also Kwiatkowsky v. Canada (Minister of Employment and Immigration), [1982] 2 S.C.R. 856, at 862 and 863. The Trial Division has also distinguished between persecution and mere unfairness: Chen, Yo Long v. M.C.I. (F.C.T.D., no. IMM-487-94), Richard, January 30, 1995, at 4.

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Note 10

Sagharichi, supra, note 3, at 2, per Marceau J.A. Even though the claimant may not be able to point to an individual episode of mistreatment which could be characterized as persecution, the claimant may still have experienced persecution or have good grounds for fearing persecution: see the discussion of cumulative acts in section 3.1.2. of this chapter, and the discussion of well-founded fear in Chapter 5.

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Note 11

Nejad, Hossein Hamedi v. M.C.I. (F.C.T.D., no. IMM-2687-96), Muldoon, July 29, 1997, at 2.  In the typescript of the Court’s reasons, the first portion of this passage is presented as though it were part of a quotation from Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.); however, the statements in question do not actually appear in that case, and seem instead to have been the words of Muldoon J. himself.  On this same theme, see paras 40 and 52 of the UNHCR Handbook. The Court noted in Bayrak, Ibrahim v. M.C.I. (F.C., no. IMM-11458-12), Shore, October 21, 2013; 2013 FC 1056 that certain risks and dangers are even more serious when taking into account the claimants’ age and their vulnerability as a result of the inherent weaknesses associated with being elderly.

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Note 12

Compare these lines with the affirmation in Ward., supra, note 4, at 747, that “the examination of the circumstances should be approached from the perspective of the persecutor”, and with the emphasis placed upon the intent of a law (which may be equated with the intent of the agent of persecution) by Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.), at 552, quoted in Chapter 9, section 9.3.2. (proposition 1). Compare also Zolfagharkhani’s assertion, at 552, that the neutrality of a law is to be judged objectively: see Chapter 9, section 9.3.2. (proposition 2).

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Note 13

In Forero Constain v. M.C.I., 2016 FC 1248, the Court noted, regarding the RPD’s statement that “there is no evidence before the panel that the minor claimant was targeted in a serious, systematic, repetitive, persistent, or relentless manner”, that there is no requirement for particular formulaic language in describing the test for persecution and the RPD did not err in its choice of words.

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Note 14

Ward., supra, note 4, at 733-734. See excerpt reproduced at pages 1-2 of this chapter.

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Note 15

Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984. Reported: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.).

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Note 16

Rajudeen, ibid., at 133-134, per Heald J.A.

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Note 17

Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.), at 396, per Marceau J.A.

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Note 18

See also Kadenko, Ninal v. S.G.C. (F.C.T.D., no. IMM-809-94), Tremblay-Lamer, June 9, 1995. Reported: Kadenko v. Canada (Solicitor General) (1995), 32 Imm. L.R. (2d) 275 (F.C.T.D.), rev’d M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Décary, Hugessen, Chevalier, October 15, 1996, where the Trial Division, at 6, considered a dictionary definition of “isolated”, and concluded that, where repeated incidents of harassment, together with physical attacks, had occurred over the course of a year and a half, it was unreasonable to speak of “isolated” acts. (The Court of Appeal reversed the decision on the issue of state protection and did not deal with the persecution findings. Leave to appeal to the Supreme Court of Canada was denied without reasons on May 8, 1997, [1996] C.S.C.R. No. 612 (QL). In Ahmad, Rizwan v. S.G.C. (F.C.T.D., no. IMM-7180-93), Teitelbaum, March 14, 1995, at para 23, the Court distinguished between systematic events and ones that were only periodic.

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Note 19

Abramov, Andrei v. M.C.I. (F.C.T.D., no. IMM-3576-97), Tremblay-Lamer, June 15, 1998.

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Note 20

In two decisions, the Trial Division certified questions regarding the need for persistence, the questions being almost identical in the two cases: Murugiah, Rahjendran v. M.E.I. (F.C.T.D., no. 92-A-6788), Noël, May 18, 1993, at 6; and Rajah, Jeyadevan v. M.E.I. (F.C.T.D., no. 92-A-7341), Joyal, September 27, 1993, at 5-6. In Rajah, the question was phrased thus: “Whether ‘persecution’ within the meaning of the Convention Refugee definition requires systematic and persistent acts or whether one or two violations of basic and inalienable rights such as forced labour or beatings while in police detention is enough to constitute ‘persecution’.” However, neither case was heard on appeal. The Federal Court of Appeal granted a motion to dismiss the appeal in Murugiah on April 4, 1997, on the grounds that the appeal was moot (F.C.A., no. A-326-93). In Rajah, the Federal Court of Appeal dismissed an application for an extension of time to file a notice of appeal (February 1, 1995).

Essentially the same question was proposed for certification in Muthuthevar, Muthiah v. M.C.I. (F.C.T.D., no. IMM-2095-95), Cullen, February 15, 1996. Cullen J., declining to certify, said at 5: “I think it is settled law that, in some instances, even a single transgression of the applicant’s human rights would amount to persecution.” See also Gutkovski, Alexander v. S.S.C. (F.C.T.D., no. IMM-746-94), Teitelbaum, April 6, 1995, where at 9, the Court noted: “…the events must be sufficiently serious or systematic to amount to a reasonable fear of persecution.” (emphasis in original). However, note the discussion in Chapter 9, section 9.3.3. regarding “Policing Methods, National Security and Preservation of Social Order”.

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Note 21

Ranjha, Muhammad Zulfiq v. M.C.I. (F.C.T.D., no. IMM-5566-01), Lemieux, May 21, 2003; 2003 FCT 637, at para 42.

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Note 22

Sztojka, Andras v. M.C.I. (F.C., no. IMM-2005-11), Mosley, October 20, 2011; 2011 FC 1202.

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Note 23

Ward, supra, note 4, at 732. See also the excerpt from Rajudeen, supra, note 15, reproduced in section 3.1.1.2. of this chapter. And see Karaseva, Tatiana v. M.C.I. (F.C.T.D., no. IMM-4683-96), Teitelbaum, November 26, 1997, at paras 10, 14-15, and 17-22. In Molaei, Farzam v. M.C.I. (F.C.T.D., no. IMM-1611-97), Muldoon, January 28, 1998, the Court noted that there must be a nexus between the personal situation of the claimant and the general situation of the country of nationality in which the claimant fears persecution. And in Cetinkaya, Lukman v. M.C.I. (F.C.T.D., no. IMM-2559-97), Muldoon, July 31, 1998, the Court noted that while certain members of the PKK in Turkey may face persecution, it is for the claimant to demonstrate that she falls within that class of individuals who face persecution, as well as to provide the necessary link between her actions and the persecution feared. See also Li, Qing Bing v. M.C.I. (F.C.T.D., no. IMM-5095-98), Reed, August 27, 1999, where the claimant stated, among other things, that the government of China does not provide basic medical services, nor does it allow him an adequate opportunity to earn a living. The Court agreed with the CRDD that there was no nexus between the claimant's hardships and a Convention ground.

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Note 24

Suvorova, Galina v. M.C.I. (F.C., no. IMM-3447-08), Russell, April 14, 2009; 2009 FC 373.

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Note 25

Bhatti, Naushaba v. S.S.C. (F.C.T.D., no. A-89-93), Jerome, September 14, 1994. Reported: Bhatti v. Canada (Secretary of State) (1994), 25 Imm. L.R. (2d) 275 (F.C.T.D.).

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Note 26

Pour-Shariati, Dolat v. M.E.I. (F.C.A., no. A-721-94), MacGuigan, Robertson, McDonald, June 10, 1997, at 4. Reported: Pour-Shariati v. Canada (Minister of Employment and Immigration) (1997), 39 Imm. L.R. (2d) 103 (F.C.A.). Followed in Kanagalingam, Uthayakumari v. M.C.I. (F.C.T.D., no IMM-566-98), Blais, February 10, 1999, where the Court held that the loss of the claimant's father, brother and fiancé at the time when the IPKF governed the security situation in the north of Sri Lanka, was indirect persecution and, therefore, not persecution within the meaning of the definition. The Trial Division certified the following question in Gonzalez, Brenda Yojana v. M.C.I. (F.C.T.D., no. IMM-1092-01), Dawson, March 27, 2002; 2002 FCT 345: “Can a refugee claim succeed on the basis of a well-founded fear of persecution for reason of membership in a particular social group that is a family, if the family member who is the principal target of the persecution is not subject to persecution for a Convention reason?” The appeal to the Federal Court of Appeal [in Gonzalez] was discontinued on February 7, 2003 (F.C.A., no. A-198-02). The concept of “indirect persecution” was considered in Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983, at para 14, where the Court held that “any persecution which the second child Canadian-born infant will experience in China is directly experienced by the parents, and is not ‘indirect persecution’.” For a more detailed discussion of the concept of “indirect persecution”, see Chapter 4. See also Iraqi v. Canada (Citizenship and Immigration), 2019 FC 1049 in which the Court upheld the RAD’s decision that applicants’ father’s deportation and the ensuing family separation constituted indirect harm not contemplated within the Convention. The Court noted that there is a difference between suffering from direct persecution on the basis of being a member of a certain family or group, and suffering the indirect consequences of a family member being persecuted. Only the first situation is covered by the Convention.

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Note 27

Granada, Armando Ramirez v. M.C.I. (F.C., no. IMM-83-04), Martineau, December 21, 2004; 2004 FC 1766.

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Note 28

This concept of the family as a particular social group was further considered in Ndegwa, Joshua Kamau v. M.C.I. (F.C., no. IMM-6058-05), Mosley, July 5, 2006; 2006 FC 847 at para 11, where the Court held that the claimant was “not just an ‘unwilling spectator of violence’ against other members of his family” (his wife and daughter), as described in Granada, and that the RPD should have considered whether the claimant “himself may be at risk due to the relationship with his wife.”

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Note 29

Abrego, Apolonio Paz v. M.E.I. (F.C.A., no. A-348-91), Hugessen, Linden, Holland, February 18, 1993.

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Note 30

See Chapter 4. See also Atwal, Mohinder Singh v. M.C.I. (F.C.T.D., no. IMM-6769-98), Nadon, November 17, 1999, where the Court agreed with the CRDD that there was no nexus between the applicant's claim and a Convention ground as the alleged acts of persecution were the result of personal vengeance and not the result of the applicant's political opinions.

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Note 31

Cortez, Delmy Isabel v. S.S.C. (F.C.T.D., no. IMM-2482-93), McKeown, December 15, 1993, at 2. See also Pierre-Louis, Edy v. M.E.I. (F.C.A., no. A-1264-91), Hugessen, MacGuigan, Décary, April 29, 1993, at 2 (personal vengeance); Sirin, Hidayet v. M.C.I. (F.C.T.D., no. IMM-5720-93), Pinard, November 28, 1994 (family vendetta); Balendra, Cheran v. M.C.I. (F.C.T.D., no. IMM-1653-94), Richard, January 30, 1995, at 3 (police corruption); and Karaseva, supra, note 23, at 14-15, and 17-22 (crimes allegedly with ethnic motivation).

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Note 32

Alifanova, Nathalia v. M.C.I. (F.C.T.D., no. IMM-5501-97), Teitelbaum, December 11, 1998.

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Note 33

Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154 (C.A.).

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Note 34

Mayers, ibid., at 169-170, per Mahoney J.A.

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Note 35

In Jeanty v. Canada (Citizenship and Immigration), 2019 FC 453, the Court held that the RAD's finding that the applicant was not at risk of domestic violence because she was no longer married to her first husband was contradicted by her previous experience and country condition reports. Diluna, Roselene Edyr Soares v. M.E.I. (F.C.T.D., no. IMM-3201-94), Gibson, March 14, 1995, at 4. Reported: Diluna v. Canada (Minister of Employment and Immigration) (1995), 29 Imm. L.R. (2d) 156 (F.C.T.D.). In an earlier decision, the Trial Division seemed inclined to the view that the abuse involved in the case did constitute persecution: Narvaez v. Canada (Minister of Citizenship and Immigration), [1995] 2 F.C. 55 (T.D.), at 64 and 70-1.

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Note 36

Resulaj, Blerina v. M.C.I. (F.C., no. IMM-7205-03), Von Finckenstein, September 14, 2004.

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Note 37

Aros, Angelica Elizabeth Navarro v. M.C.I. (F.C.T.D., no. IMM-4480-96), MacKay, February 11, 1998

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Note 38

Dezameau v. Canada (Citizenship and Immigration), 2010 FC 559; Josile v. Canada (Citizenship and Immigration), 2011 FC 39.

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Note 39

See, for example, Ravji, Shahsultan Meghji v. M.E.I. (F.C.T.D., no. A-897-92), McGillis, August 4, 1994 (the particular harm in question should have been considered by the Refugee Division in its assessment of cumulative acts).

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Note 40

See, for example: Gomez-Rejon, Bili v. M.E.I. (F.C.T.D., no. IMM-470-93), Joyal, November 25, 1994, at 3 and 8; Chen, supra, note 9, at 5; and Karpounin, Maxim Nikolajevitsh v. M.E.I. (F.C.T.D., no. IMM-7368-93), Jerome, March 10, 1995. In Rawji, Riayz v. M.E.I. (F.C.T.D., no. IMM-5929-93), Gibson, November 25, 1994, where crime had befallen the claimant and police had refused to investigate unless bribed, the Court indicated, at 2, that neither persecution nor nexus to a Convention ground was involved. See also Chapter 4, section 4.7. In Kaur, Biba v. M.C.I. (F.C.T.D., no. IMM-305-96), Jerome, January 17, 1997, the claimant had been raped while in detention. The Refugee Division characterized her as a “random victim of violence”, finding no nexus to a Convention ground (and also no well-foundedness), but the Court held that the mistreatment “was a direct consequence of her detention for political reasons” (at 2).

In Mousavi-Samani, Nasrin v. M.C.I. (F.C.T.D., no. IMM-4674-96), Heald, September 30, 1997, the claimants had exposed fraud perpetrated by state officials, and feared retaliation and prosecution. As in Rawji, the Refugee Division had found both persecution and nexus to be lacking, and the Court upheld these findings.

For other cases where the Court upheld the CRDD’s finding of no nexus based on criminality, see: Montoya, Hernan Dario Calderon v. M.C.I. (F.C.T.D., no. IMM-5027-00), Hansen, January 18, 2002; 2002 FCT 63 (family targeted for kidnapping because of their wealth); Bencic, Eva v. M.C.I. (F.C.T.D., no. IMM-3711-00), Kelen, April 26, 2002; 2002 FCT 476 (persecution directly related to criminals seeking to extort money and automobiles); and Yoli, Hernan Dario v. M.C.I. (F.C.T.D., no. IMM-399-02), Rouleau, December 30, 2002; 2002 FCT 1329 (claimant had evidence regarding perpetrators’ identity and criminal activities).

In Zefi, Sheko v. M.C.I. (F.C.T.D., no. IMM-1089-02), Lemieux, May 21, 2003; 2003 FCT 636, at para 41, the Court held that a family or clan involved in a blood feud is not a particular social group, as such revenge killings have nothing to do with the defence of human rights; to the contrary, they constitute a violation of human rights: “Recognition of a social group on this basis would have the anomalous result of according status to criminal activity, status because of what someone does rather than what someone is.”

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Note 41

See, for example, Dragulin, Constantin Marinescu v. S.G.C. (F.C.T.D., no. IMM-46-94), Rouleau, December 23, 1994, at 3-5; and Njoko, Tubila v. M.E.I. (F.C.T.D., no. A-1698-92), Jerome, January 25, 1995, at 2.

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Note 42

Ansar, Iqbal v. M.C.I. (F.C.T.D., no. IMM-4124-97), Campbell, July 22, 1998.

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Note 43

Ward, supra, note 4, at 709, 717, 720-1; Chan, supra, note 6, per La Forest (dissenting) at 630.

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Note 44

Bougai, Zoia (a.k.a. Bougai, Zoya) v. M.C.I. (F.C.T.D., no. IMM-4966-94), Gibson, June 15, 1995, at 6.

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Note 45

Malchikov, Alexander v. M.C.I. (F.C.T.D., no. IMM-1673-95), Tremblay-Lamer, January 18, 1996, at para 26.

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Note 46

Moudrak, Vanda v. M.C.I. (F.C.T.D., no. IMM-1480-97), Teitelbaum, April 1, 1998.

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Note 47

Valdes, Roberto Manuel Olivares v. M.C.I. (F.C.T.D., no. IMM-1902-97), Pinard, April 24, 1998. Reported: Valdes v. Canada (Minister of Citizenship and Immigration) (1998), 47 Imm. L.R. (2d) 125 (F.C.T.D.).

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Note 48

Madelat, Firouzeh v. M.E.I., Mirzabeglui, Maryam v. M.E.I. (F.C.A., nos. A-537-89 and A-538-89), MacGuigan, Mahoney, Linden, January 28, 1991; Retnem, Rajkumar v. M.E.I. (F.C.A., no. A-470-89), MacGuigan, Décary, Pratte (dissenting), May 6, 1991. Reported: Retnem v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 317 (F.C.A.), at 319; Iossifov, Svetoslav Gueorguiev v. M.E.I. (F.C.T.D., no. A-854-92), McKeown, December 8, 1993, at 2.

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Note 49

El Khatib, supra, note 8, at 3; Nina, Razvan v. M.C.I. (F.C.T.D., no. A-725-92), Cullen, November 24, 1994, at 9. For an examination of cumulative acts in the context of an internal flight alternative, see Chapter 8.

In Horvath, Karoly v. M.C.I. (F.C.T.D., no. IMM-4335-99), MacKay, April 27, 2001, referring to Retnem, supra, note 48, the Court held that it was an error for the Board to fail to consider the cumulative effect of the treatment suffered by the claimants when that treatment was consistently accepted as being discriminatory and as indicative of serious problems facing Roma in Hungary. Horvath was cited with approval in Keninger, Erzsebet v. M.C.I. (F.C.T.D., no. IMM-3096-00), Gibson, July 6, 2001.

Furthermore, in Bursuc, Cristinel v. M.C.I. (F.C.T.D., no. IMM-5706-01), Dawson, September 11, 2002; 2002 FCT 957, the Court held that, in considering the cumulative effect of incidents, the CRDD must have regard to the whole of the evidence, and not just evidence after the culminating incident.

In Kamran, Mohsin Ali v. M.C.I. (F.C., no. IMM-4760-10), Russell, March 29, 2011; 2011 FC 380, a case involving an Ahmadi from Pakistan, the Court noted that the RPD erred in dealing with incidents sequentially and by compartmentalizing them.

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Note 50

Mete, Dursun Ali v. M.C.I. (F.C., no. IMM-2509-04), Dawson, June 17, 2005; 2005 FC 840, at para 9. Furthermore, in Devi, Nalita v. M.C.I. (F.C., no. IMM-3994-06), Layden-Stevenson, February 8, 2007; 2007 FC 149, the Court stated, at para 16, that “where the cumulative effect of a number of discriminating acts has the potential to result in a finding of persecution, it is not open to the RPD to place some acts [on] one side of the line [common criminality] and other acts on the other side of the line [harassment/discrimination], without providing some rationale for having done so.” In contrast, in Abdalqader, Haneen N.M. v. M.C.I. (F.C. no. IMM-3536-17), Gleeson, April 13, 2018; 2018 FC 405, the Court upheld the RPD decision and found that the RPD had engaged in a detailed assessment of the various forms of discrimination and addressed the claimants’ particular circumstances. This case involved stateless Palestinians from Jordan. The RPD considered that non-citizens did not have the same access to state schools, were excluded from health insurance, and were prohibited from owning property, but found that when considered together it did not amount to persecution. The RPD noted that despite the restrictions, the claimants obtained a university education and had access to health care, even though they had to pay for it. A similar conclusion was reached in El Assadi Kamal, Bilal v. M.C.I. (F.C. no. IMM-4984-17), Roussel, May 25, 2018; 2018 FC 543, a case involving a stateless Palestinian from Lebanon. The Court upheld the RPD’s conclusion that although Palestinian refuges in Lebanon face widespread and systematic discrimination in regards to employment, education, medical care and social services, these restrictions would not lead to consequences of a substantially prejudicial nature.

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Note 51

Csiklya v. Canada (Citizenship and Immigration), 2019 FC 1276.

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Note 52

Ban v. Canada (Citizenship and Immigration), 2018 FC 987, at para 23. See also Zatreanu v. Canada (Citizenship and Immigration), 2020 FC 472, at para 17, where the Court found that a panel erred in its assessment of the cumulative effect of discriminatory conduct as it considered certain schoolyard harassment but excluded from consideration serious incidents of harassment, including assaults, threats of bodily harm and property damage.

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Note 53

Kadhm, Suhad Mohamed v. M.C.I. (F.C.T.D., no. IMM-652-97), Muldoon, January 8, 1998.

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Note 54

Canada (Citizenship and Immigration) v. Munderere, 2008 FCA 84. Leave to appeal to the Supreme Court of Canada was dismissed without reasons on August 14, 2008 (S.C.C. File no. 32602).

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Note 55

Mete, supra, note 50.

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Note 56

Rodriguez-Hernandez, Severino Carlos v. S.S.C. (F.C.T.D., no. A-19-93), Wetston, January 10, 1994, at 3.

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Note 57

Liang, Hanquan v. M.C.I. (F.C. no. IMM-3342-07), Tremblay-Lamer, April 8, 2008; 2008 FC 450. An example of a case where the young age of the claimant (a 13 year old abandoned child) was considered in assessing the cumulative effect of the various harms they faced is M.C.I. v. Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008: 2008 FC 747.

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Note 58

Olah v. Canada (Citizenship and Immigration), 2019 FC 401.

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Note 59

Vangor v. Canada (Citizenship and Immigration), 2019 FC 866; See also Pava v. Canada (Citizenship and Immigration), 2019 FC  1239; WH v. Canada (Citizenship and Immigration), 2019 FC 1629.

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Note 60

In M.C.I. v. Hund, Matthew, (IMM-5512-07), Lagacé, February 5, 2009; 2009 FC 121, the Court found that the Board had erred in considering abandonment by the respondents’ own family; targets and attacks by a deputy sheriff; threats made at public meetings by members of their community; and several relocations over a span of four years as cumulative acts of discrimination. The Court noted that the incidents did not fall within the definitions of discrimination and persecution. For example, with reference to abandonment the Court noted that, “abandonment by one’s own family, though an unpleasant occurrence, remains an unfortunate social and familial dynamic faced in the best families regardless of the religious beliefs and political opinions; as such it does not equate to discrimination.”

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Note 61

Gebre-Hiwet, Tewodros v. M.C.I. (F.C., no. IMM-3844-09), Phelan, April 30, 2010; 2010 FC 482.

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Note 62

Munderere, supra, note 54, at para 48.

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Note 63

Munderere, ibid. at para 49.

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Note 64

Munderere, ibid., at para 52.

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Note 65

Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (C.A.), per Desjardins J.A. at 723, aff’d Chan (S.C.C.), supra, note 6. In Mendoza, Elizabeth Aurora Hauayek v. M.C.I. (F.C.T.D., no. IMM-2997-94), Muldoon, January 24, 1996, at 4: the Court said that rape “is a form of brutality especially utilizable for the humiliation and brutalization of women. It is not to be treated lightly”. In Arguello-Garcia, Jacobo Ignacio v. M.E.I. (F.C.T.D., no. 92-A-7335), McKeown, June 23, 1993. Reported: Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.), at 287, sexual abuse was part of the persecution suffered by the male claimant. But see Cortez, supra, note 31, where the rape was found not to constitute persecution. See also Chapter 9, section 9.3.3. for further discussion of measures such as beating.

In Iruthayanathar, Joseph v. M.C.I. (F.C.T.D., no. IMM-3619-99), Gibson, June 15, 2000, while following Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), (discussed in Chapter 9, section 9.3.3.), the Court determined that beatings in detention, alone, can constitute persecution. For a case discussing harmful treatments at checkpoints, see Thambirajah, Sathan v. M.C.I. (F.C., no. IMM-382-11), Bédard, October 20, 2011; 2011 FC 1196. The Court noted that being beaten, detained, or made to pay a bribe to a paramilitary group to be released cannot reasonably be characterized as a mere inconvenience or as being vigorously questioned. In Ismayilov, Anar v. M.C.I. (F.C., no. IMM-7263-14), Mactavish, August 26, 2015; 2015 FC 1013, the Court found the RPD’s finding that the treatment the claimant received was “routine questioning” to be perverse. The claimant had been repeatedly arrested and detained because of his religious faith. He was questioned, insulted, beaten, denied food, water and the ability to pray, and forcibly shaved.

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Note 66

Porto, Javier Cardozo v. M.E.I. (F.C.T.D., no. A-1549-92), Noël, September 3, 1993, at 3. In Warner, Leslie Kervin v. M.C.I. (F.C., no. IMM-4283-10), Zinn, March 23, 2011; 2011 FC 363, a case involving mistreatment based on the claimant’s homosexuality, the Court found unreasonable the RPD’s conclusion that the many incidents of very serious physical violence directed against the claimant and his partner were, even cumulatively, no more than harassment and discrimination. The fact that laws criminalizing homosexual acts are not enforced is relevant to the issue of state protection and not to the issue of whether acts perpetrated by non-state actors amount to persecution.

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Note 67

Munoz, Alfonso La Rotta v. M.C.I. (F.C.T.D., no. IMM-2207-93), Pinard, November 28, 1994, at 3.

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Note 68

Gidoiu, Ion v. S.S.C. (F.C.T.D., no. IMM-2907-94), Wetston, April 6, 1995, at 1.

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Note 69

Antonio, supra, note 7, at 11-12, where the offence in question was treason (in the form of espionage and sabotage); Chu, Zheng-Hao v. M.C.I. (F.C.T.D., no. IMM-5159-94), Jerome, January 17, 1996, at 5. See also Singh, Tejinder Pal v. M.C.I. (F.C.T.D., no. IMM-5294-97), Muldoon, December 23, 1997 (supplementary reasons), at paras 9-13.

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Note 70

Cheung, supra, note 5, at 324, per Linden J.A.: “the forced sterilization of women is a fundamental violation of basic human rights. It violates Articles 3 and 5 of the United Nations Universal Declaration of Human Rights.” With respect to sterilization and abortion, see Chapter 9, where the one-child policy in China is discussed.

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Note 71

Chan (S.C.C.), supra, note 6, per La Forest J. (dissenting) at 636. The majority in the Supreme Court did not expressly comment on the issue, although Mr. Justice Major appeared to assume that forced sterilization would indeed constitute persecution: see, for example, 658 and 672-673. See also Chan (F.C.A.), supra, note 65, per Heald J.A. at 686, and per Mahoney J.A. (dissenting) at 704.

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Note 72

Lai, Quang v. M.E.I. (F.C.T.D., no. IMM-307-93), McKeown, May 20, 1994, at 2.

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Note 73

Zheng, Jin Xia v. M.C.I. (F.C., no. IMM-3121-08), Barnes, March 30, 2009; 2009 FC 327. The Court noted that the RPD erred in finding that the requirement to use an IUD is not persecutory because it arises from a law of general application. See also M.C.I. v. Ye, Yanxia (F.C., no. IMM-8797-12), Pinard, June 13, 2013; 2013 FC 634. See also Xie v. Canada (Citizenship and Immigration), 2019 FC 1458 at 22, where, in relation to mandatory contraception and pregnancy examinations, the Court held that there was no basis for the RPD’s conclusion that the mandatory taking of a blood sample is “non-invasive” since “it is a direct violation of the Female Applicant’s physical integrity”.

Return to note 73 referrer

Note 74

Huang v. Canada (Citizenship and Immigration), 2019 FC 120.

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Note 75

Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.).

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Note 76

Oyarzo v. Canada (Minister of Employment and Immigration), [1982] 2 F.C. 779 (C.A.), at 782, per Heald J. See also Amayo v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 520 (C.A.); and Asadi, Sedigheh v. M.C.I. (F.C.T.D., no. IMM-1921-96), Lutfy, April 18, 1997, at 3. See also Herczeg, Zsolt v. M.C.I. (F.C., no. IMM-5538-06), Mandamin, October 23, 2007; 2007 FC 2000, at para 20.

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Note 77

Ammery, Poone v. S.S.C. (F.C.T.D., no. IMM-5405-93), MacKay, May 11, 1994, at 4. Nejad, supra, note 11. See Serwaa, Akua v. M.C.I. (F.C., no. IMM-295-05), Pinard, December 20, 2005; 2005 FC 1653, at para 6, where the Court stated that it seemed that stalking would be included in the definition of persecution, depending on the facts of the case. See also Herczeg, Zsolt v. M.C.I. (F.C., no. IMM-5538-06), Mandamin, October 23, 2007; 2007 FC 2000, at para 19.

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Note 78

Bragagnini-Ore, Gianina Evelyn v. S.S.C. (F.C.T.D., no. IMM-2243-93), Pinard, February 4, 1994, at 2.

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Note 79

Kicheva, Zorka v. M.E.I. (F.C.T.D., no. A-625-92), Denault, December 23, 1993, at 2.

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Note 80

Ling, Che Keung v. M.E.I. (F.C.T.D., no. 92-A-6555), Muldoon, May 20, 1993.

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Note 81

Sulaiman, Hussaine Hassan v. M.C.I. (F.C.T.D., no. IMM-525-94), MacKay, March 22, 1996, at 6-7 and 11 12.

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Note 82

Namitabar v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 42 (T.D.), at 47; Fathi-Rad, Farideh v. S.S.C. (F.C.T.D., no. IMM-2438-93), McGillis, April 13, 1994, at 4-5. Compare Hazarat, Ghulam v. S.S.C. (F.C.T.D., no. IMM-5496-93), MacKay, November 25, 1994, at 3-4. See the discussion of “Restrictions upon Women” in section 9.3.8.1 of Chapter 9. In S.S.C. v. Namitabar, Parisa (F.C.A., no. A-709-93), Décary, Hugessen, Desjardins, October 28, 1996, the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so." See also Rabbani, Farideh v. M.C.I. (F.C.T.D., no. IMM-2032-96), McGillis, June 3, 1997, at 2.

In two decisions dealing with a Turkish law banning the wearing of headscarves in government places or buildings, the Court distinguished both Namitabar (F.C.T.D.), supra, and Fathi-Rad, supra, as cases dealing with Iranian women who were obliged by Iranian law to wear the Chador: Kaya, Nurcan v. M.C.I. (F.C., no. IMM-5565-03), Harrington, January 14, 2004; 2004 FC 45, at para 18; Aykut, Ibrahim v. M.C.I. (F.C., no. IMM-5310-02), Gauthier, March 26, 2004; 2004 FC 466, at para 40. In Daghmash, Mohamed Hussein Moustapha v. M.C.I. (F.C.T.D., no. IMM-4302-97), Lutfy, June 19, 1998, the Court referred to the punishment of lashing and found no reviewable error with the tribunal’s finding that while abhorrent to Canadian sensibilities, one cannot make the sweeping finding that corporal punishment is automatically persecutory. This case should be read with caution in light of the statement by the Supreme Court of Canada in R. v. Smith, [1987] 1 S.C.R. 1045 that: “…some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment, such as the lash, irrespective of the number of lashes imposed…”

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Note 83

Maarouf v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 723 (T.D.), at 738. See also Abdel-Khalik, Fadya Mahmoud v. M.E.I. (F.C.T.D., no. IMM-883-93), Reed, January 31, 1994. Reported: Abdel-Khalik v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 262 (F.C.T.D), at 263. But see Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996, where denial of a right to return was found not to be persecutory when related to a law of general application.

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Note 84

Arafa, Mohammed v. M.E.I. (F.C.T.D., no. A-663-92), Gibson, November 3, 1993, at 4-5. As to the possibility that harsh policies on the granting of citizenship, or limitations imposed upon permanent residents, might constitute persecution, see Falberg, Victor v. M.C.I. (F.C.T.D., no. IMM-328-94), Richard, April 19, 1995, at 4.

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Note 85

Cheung, supra, note 5, at 323; Chan (F.C.A.), supra, note 60, at 688, per Heald J.A.; Lai, supra, note 67, at 3.

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Note 86

Lin, Qu Liang v. M.E.I. (F.C.A., no. 93-A-142), Rouleau, July 20, 1993. Reported: Lin v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 208 (F.C.T.D.) , at 211. In Horvath, Laszlo v. M.C.I. (F.C., no. IMM-4326-10), Mandamin, November 23, 2011; 2011 FC 1350, the Court noted that the failure to analyze the limitation on the applicant’s ability to earn a livelihood constitutes a reviewable error.

Return to note 86 referrer

Note 87

Xie, Sheng v. M.E.I. (F.C.T.D., no. A-1573-92), Rothstein, March 3, 1994, at 5-6. Similarly, in Soto, Marie Marcelina Troncoso v. M.C.I. (F.C.T.D., no. IMM-3734-01), Tremblay-Lamer, July 10, 2002; 2002 FCT 768, the Court held that it is not acceptable to suggest that a visually impaired person, who is trained to use a guide dog, should not bring her guide dog to work in order to find employment.

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Note 88

He, Shao Mei v. M.E.I. (F.C.T.D., no. IMM-3024-93), Simpson, June 1, 1994. Reported: He v. Canada (Minister of Employment and Immigration) (1994), 25 Imm. L.R. (2d) 128 (F.C.T.D.). In contrast, see Vaamonde Wulff, Monica Maria v. M.C.I. (F.C., no. IMM-4292-05), Rouleau, June 9, 2006; 2006 FC 725, at para 23, where the Court held that the claimant’s argument “that she would not be able to resume her teaching job is not sufficient to say that she is unemployable, given her training and work history [in a number of other jobs]”. Also see El Assadi, supra note 48 where the Court found that although the claimant could not work as a mechanical engineer in Lebanon, he did not demonstrate that he could not work in other fields. The Court stated “…persecution does not result from the ability to work in the field of one’s choosing. Rather, it flows from one’s inability to work at all…” [NOTE: The Court likely meant “inability, rather than “ability” in the first sentence].

Return to note 88 referrer

Note 89

Iraqi v. Canada (Citizenship and Immigration), 2019 FC 1049, which cited El Assadi Kamal v. Canada (Citizenship and Immigration), 2018 FC 543, at para 17.

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Note 90

Garcia Luzbet, Yunetsy v. M.C.I. (F.C., no. IMM-57-11), Harrington, July 22, 2011; 2011 FC 923.

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Note 91

Ramirez, Rosa Etelvina v. S.G.C. (F.C.T.D., no. IMM-1192-94), Rouleau, December 9, 1994, at 5. See also Chen, supra, note 9, at 4.

Return to note 91 referrer

Note 92

Lerer, Iakov v. M.C.I. (F.C.T.D., no. IMM-7438-93), Cullen, January 5, 1995, at 5-6.

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Note 93

Sinnathamby, Jayasrikanthan v. M.E.I. (F.C.T.D., no. IMM-179-93), Noël, November 2, 1993. Reported: Sinnathamby v. Canada (Minister of Employment and Immigration) (1993), 23 Imm. L.R. (2d) 32 (F.C.T.D.) at 36. See also: Mortera, Senando Layson v. M.E.I. (F.C.T.D., no. A-1084-92), McKeown, December 8, 1993; Vasudevan, Prakash v. S.S.C. (F.C.T.D., no. IMM-81-94), Gibson, July 11, 1994; Sivapoosam, Sivakumar v. M.C.I. (F.C.T.D., no. IMM-2674-95), Reed, June 19, 1996, at 4-5; and Srithar, Suntharalingam v. M.C.I. (F.C.T.D., no. IMM-158-97), Tremblay-Lamer, October 10, 1997, at 4-5 (extortion by corrupt military personnel). In Nyota, Katy v. M.C.I. (F.C., no. IMM-4289-10), O’Keefe, June 13, 2011; 2011 FC 675, the Court reiterated that extortion may amount to persecution and it is an error to state that it can never form the basis of a refugee claim.

Return to note 93 referrer

Note 94

Douillard, Kerlange v. M.C.I. (F.C. no. IMM-4443-18), LeBlanc, March 29, 2019; 2019 FC 390. In this case, the claimant pleaded that her child, as an American citizen, would be separated from her if his claim were denied. The Court held that family reunification by itself is not a determinative factor where the criteria of sections 96 or 97 are not met.

Return to note 94 referrer

Note 95

Cheung, supra, note 5, at 325.

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Note 96

Modeste, Sherisa Shermika Patricia v. M.C.I. (F.C., no. IMM-9659-12), Russell, December 18, 2013; 2013 FC 1262.

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Note 97

Ali, Shaysta-Ameer v. M.C.I. (F.C.T.D., no. IMM-3404-95), McKeown, October 30, 1996. Reported: Ali v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 34 (F.C.T.D). The Court distinguished Ali in Gonsalves, Stanley Bernard v. M.C.I. (F.C., no. IMM-3827-10), Zinn, June 7, 2011; 2011 FC 648 when it found that the RPD did not err in finding that the applicant children did not face persecution even though they had to leave school due to discriminatory treatment. While Ali stands for the proposition that where the only way a child can avoid persecution is to cease attending school, asking the child to do so violates his or her right to an education and the child should therefore be found to be a refugee, in this case, the RPD reasonably found that the treatment which forced the applicant children to leave school was discrimination not persecution.

Return to note 97 referrer

Note 98

Thathaal, Sabir Hussain v. S.S.C. (F.C.T.D., no. A-1644-92), McKeown, December 15, 1993, at 2. Appeal to the Federal Court of Appeal dismissed April 16, 1996 (F.C.A., no. A-724-93).

Return to note 98 referrer

Note 99

Vidhani v. Canada (Minister of Citizenship and Immigration), 1995 3606 (FC), [1995] 3 FC 60 (T.D.), at 65. In this decision, the claim of an Asian, Moslem woman from Kenya derived from the fact that her father had arranged a marriage for her. She did not wish to marry the man in question and feared that this man would abuse her if they did marry. She also feared being abused by her father if she refused to marry and being sexually attacked by the police if she complained to them. The Trial Division stated that women who are forced into marriages have had a basic human right violated. It also referred to the possibility that persecution might be found in: (i) the claimant’s being forced into a marriage; (ii) spousal abuse; (iii) abuse by the father; and (iv) the reaction of the police. 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).

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Note 100

Frid, Mickael v. M.C.I. (F.C.T.D., no. IMM-6694-93), Rothstein, December 15, 1994, at 3.

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Note 101

Zheng, Jian Hua v. M.C.I. (F.C., no. IMM-3781-10), Scott, February 15, 2011; 2011 FC 181.

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Note 102

Igumnov, Sergei v. M.C.I. (F.C.T.D., no. IMM-6993-93), Rouleau, December 16, 1994, at 3-5. See also Gutkovski, supra, note 19, at 2 and 4.

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Note 103

Kassatkine, Serguei v. M.C.I. (F.C.T.D., no. IMM-978-95), Muldoon, August 20, 1996, at 4. And see Kazkan, Shahrokh Saeedi v. M.C.I. (F.C.T.D., no. IMM-1313-96), Rothstein, March 20, 1997.

Similarly, in BC v. M.C.I. (F.C., no. IMM-4840-02), Gibson, July 4, 2003; 2003 FC 826, the Court held that the denial to the claimant of the opportunity to secure re-employment as a high school teacher, in the absence of her abandonment of a particular religious practice, could amount to serious discrimination amounting to persecution. However, in two decisions, the Federal Court agreed with the RPD’s finding that the Turkish female claimant’s loss of employment in a public institution for wearing a headscarf did not constitute persecution. In Kaya, supra, note 82, at para 13, the Court stated that “[l]aws must be considered in their social context.” In this case, the Court found that the Turkish law banning the wearing of any religious dress in government places or buildings was made in furtherance of the government’s secular policies. A similar result was reached in Aykut, supra, note 82. See also the discussion under “Restrictions upon Women” in Chapter 9 . See also Mpore v. Canada (Citizenship and Immigration), 2020 FC 883, where the Court upheld the RPD’s decision denying a claim on the basis that a Rwandan Pentecostal claimant’s inability to attend a specific parish church, which had been closed, did not amount to persecution, as the evidence did not establish that the claimant was unable to safely practice her religion at another Pentecostal church.

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Note 104

Chen, Shun Guan v. M.C.I. (F.C.T.D., no. IMM-1433-96), Lutfy, January 31, 1997, at 2-3, citing the UNHCR Handbook, paragraph 72. In Chen v. Canada (Citizenship and Immigration), 2020 FC 907, the Court held that the RAD erred when it equated the possibility of facing religious persecution with the possibility of arrest and detention.  The fact that this was the nature of the analysis was confirmed by the RAD’s reference to only those who were incarcerated as having been “harassed enough to be considered as persecuted”. 

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Note 105

Lin, supra, note 80, at 211.

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Note 106

Abouhalima, Sherif v. M.C.I. (F.C.T.D., no. IMM-835-97), Gibson, January 30, 1998. However, in Murugamoorthy, Rajarani v. M.C.I. (F.C., no. IMM-4706-02), O’Reilly, September 29, 2003; 2003 FC 1114, at para 6, the Court stated that whether short-term arrests for security reasons can be considered persecution depends upon the claimant’s particular circumstances, including factors such as the claimant’s age and prior experiences, relying upon Velluppillai, Selvaratnam v. M.C.I. (F.C.T.D., no. IMM-2043-99), Gibson, March 9, 2000. In Kularatnam, Suhitha v. M.C.I. (F.C., no. IMM-3530-03), Phelan, August 12, 2004; 2004 FC 1122, at para 11, the Court set out other factors that could also be relevant, namely, the nature of the location and treatment during detention, and the manner of release from detention.

In Abu El Hof, Nimber v. M.C.I. (F.C., no. IMM-1494-05), von Finckenstein, November 8, 2005; 2005 FC 1515, the Court upheld as reasonable the RPD’s conclusion that the claimant’s two short detentions and interrogation, although humiliating, could be viewed as necessary security measures, given the heightened security in Israel at the time. In Kuzu, Meral v. M.C.I. (F.C. no. IMM-496-18), Lafrenière, September 14, 2018; 2018 FC 917, the Court came to a similar conclusion concerning two periods of detention for a total of eight hours. The Court noted that at no point did the police use violence towards the claimant nor interfere with his basic human rights. See also chapter 9, section 9.3.3.

Return to note 106 referrer

Note 107

M.C.I. v. Lin, Chen (F.C.A., no. A-3-01) Desjardins, Décary, Sexton, October 18, 2001. See also Zhu, Long Wei v. M.C.I. (F.C.T.D., no. IMM-2746-00) Muldoon, August 13, 2001.

Return to note 107 referrer

Note 108

In Zheng, Jin Dong v. M.C.I. (F.C.T.D., no. IMM-2415-01), Martineau, April 19, 2002; 2002 FCT 448, the basis for this argument was that minors could not consent to being trafficked. The Court upheld the CRDD’s decision, where the panel assessed the issue of consent with regard to this particular minor claimant, relying upon Xiao, Mei Feng v. M.C.I., (F.C.T.D., no. IMM- 953-00), Muldoon, March 16, 2002; 2001 FCT 195.

Return to note 108 referrer

Note 109

Although the Court stated that the issue was not determinative in this case, in M.C.I. v. Hamdan, Amneh (F.C., no. IMM-7723-04), Gauthier, March 6, 2006; 2006 FC 290, at paras 22-23, the Court commented that the Universal Declaration of Human Rights “is only a declaratory instrument” and that article 16 “deals with the right not to have limitations based on race, nationality or religion imposed on one’s right to marry and to found a family”. The Court agreed with the applicant Minister that it did not “per se create a positive obligation on a State to set up sponsorship processes or to adopt legislation that facilitates the entry of a foreign spouse on its territory.”

Return to note 109 referrer

Note 110

Marshall, Matin v. M.C.I. (F.C., no. IMM-3638-07), O’Keefe, August 14, 2008; 2008 FC 946.

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Note 111

Treskiba, Anatoli Benilov v. M.C.I. (F.C., no. IMM-1999-08), Pinard, January 13, 2009; 2009 FC 15.

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Note 112

Woldeghebrial, Sela Tesfa v. M.C.I. (F.C., no. IMM-3514-10), O’Reilly, February 4, 2011; 2011 FC 126.

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Note 113

Mwayuma v. Canada (Citizenship and Immigration), 2019 FC 1573.

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Note 114

Jeon v. Canada (Citizenship and Immigration), 2019 FC 1429.

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