Chapter 5 - Well-founded fear

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  1. 5.1. Generally
  2. 5.2. Subjective fear
    1. 5.2.1. Subjective fear is an essential element
    2. 5.2.2. Establishing a subjective fear
  3. 5.3. Delay in seeking protection
    1. 5.3.1. Summary of governing principles
  4. 5.4. Types of d​elay
    1. 5.4.1. Delay in leaving the country of persecution
    2. 5.4.2. Failure to seek protection in other countries
      1. 5.4.2.1. Explanations for not seeking protection in other countries
    3. 5.4.3. Delay in making a claim upon arrival in Canada
  5. 5.5. Return to country of persecution - reavailment
  6. 5.6. Objective basis for the claimant’s fear
    1. 5.6.1. Standard of proof for factual findings
    2. 5.6.2. Legal test to establish a risk of persecution
    3. 5.6.3. Relationship between the standard of proof and the legal test
  7. 5.7. Sur place claims
    1. 5.7.1. No good faith requirement for a sur place claim
    2. 5.7.2. Claimant’s activities abroad
    3. 5.7.3. Claimant’s motivation may be relevant to risk assessment
    4. 5.7.4. Credibility
    5. 5.7.5. Events in the claimant’s home country

5. Well-Founded Fear

5.1. Generally

Section 96 of the Immigration and Refugee Protection Act (the IRPA) provides that a Convention refugee is a person who is outside of their country of nationality or country of former habitual residence and is unable or unwilling to avail themself of the protection of that country because of a “well-founded fear of persecution” for reason of race, religion, nationality, membership in a particular social group or political opinion.Note 1

In Ward,the Supreme Court of Canada held that the test for establishing a fear of persecution is bi-partite in nature. Refugee claimants must establish both that they have a subjective fear of persecution if they return to their home country and that their fear is well-founded in an objective sense.Note 2 The SCC adopted the test that had been articulated and applied earlier by Heald J.A. in Rajudeen:

The subjective component relates to the existence of a fear of persecution in the mind of the refugee. The objective component requires that the refugee’s fear be evaluated objectively to determine if there is a valid basis for that fear.Note 3

Thus, claimants may have a subjective fear that they will be persecuted if returned to their country, but the fear must be assessed objectively in light of the situation in that country in order to determine whether the fear is well-founded.Note 4

The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, which was reissued in 2019, points to the phrase “well-founded fear of persecution” as the key phrase in the definition of a Convention refugee.Note 5 To the concept of fear – a state of mind and a subjective condition – is added the qualification of “well-founded”. This implies that it is not only the frame of mind of the person concerned that determines their refugee status, but that this frame of mind must be supported by an objective situation. The term “well-founded fear” therefore contains both a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration.Note 6

The definition of Convention refugee is forward-looking. In a claim for refugee status, the issue is not whether the claimant had good reason to fear persecution in the past, but whether, at the time the claim is being assessed, the claimant has good grounds for fearing persecution in the future.Note 7

When evaluating conditions in the claimant’s country of origin, the tribunal is required to consider evidence of the conditions as they exist at the time of the hearing.Note 8

Claimants do not have to establish that they have been persecuted in the past.Note 9 Even if they can do so, “past persecution is insufficient of itself to establish a fear of future persecution”.Note 10 Nonetheless, past persecution remains a relevant consideration because evidence relating to it (or to a fear of past persecution) can properly be the foundation of a present fear.Note 11 In Natynczy,Note 12 the Court remarked that even though the test for a well-founded fear was forward-looking, in cases where incidents of past persecution were alleged, the Board had an obligation to assess those incidents because “evidence of past persecution is one of the most effective means of showing that a fear of future persecution is objectively well-founded.” Where a claimant is able to establish a pattern of long-standing persecution, there may be reason to believe that the pattern will continue.Note 13

Evidence about persecution faced by similarly-situated people will often be compelling because it tends to show that a claimant would face the same risks. However, that does not change the fact that it is still the claimant who must face a serious possibility of persecution.Note 14

5.2. Subjective fear

The subjective component relates to the existence of a fear of persecution in the mind of the claimant. In order to establish a subjective fear of persecution, claimants must show that they genuinely fear persecution upon return.

5.2.1. Subjective fear is an essential element

A subjective fear and an objective basis for that fear are crucial elements in the definition of a Convention refugee. In 1999 in Kamana,Note 15 Madam Justice Tremblay-Lamer held that the Board's finding that the claimant had not credibly established the subjective element was reasonable and that was fatal to the claim:

The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition – subjective and objective – must be met.

The same reasoning was repeated by Madam Justice Tremblay-Lamer shortly afterwards in Tabet-Zatla, Note 16 a case which was followed by a number of judges in the Federal Court (the “Court”)Note 17.

A few years later, in 2002, the applicant in Maqdassy challenged Justice Tremblay-Lamer’s holdings in Kamana and Tabet-Zatla.Note 18 The applicant relied on Yusuf, Note 19 an earlier decision by the Federal Court of Appeal (the “Court of Appeal”) that had found that the soundness of rejecting a claim because of the absence of subjective fear in the presence of an objective basis for the fear was “doubtful.” In Yusuf, Hugessen J.A. stated:

I find it hard to see in what circumstances it could be said that a person who, we must not forget, is by definition claiming refugee status could be right in fearing persecution and still be rejected because it is said that fear does not actually exist in his conscience.

The applicant in MaqdassyNote 20 relied on this to argue thatit might not be necessary to establish a subjective fear of persecution where an objective basis for the fear had been shown to exist. Justice Tremblay-Lamer disagreed, noting that Yusuf had been decided prior to Ward,Note 21 in which the Supreme Court made it clear that both components of the test were required.Note 22

In Kanvathipillai, Justice Pelletier had qualms with the approach in Yusuf, stating “there is a rationale for insisting upon a subjective sensation of fear” and that “refugee systems exists to protect those who are afraid of persecution and for whom there is no state protection….Individuals leave troubled regions for many reasons but only those who do so out of a well-founded fear of persecution can claim international protection.”Note 23 In Geron,Note 24 a case decided several months later, Mr. Justice Blanchard also referred to Ward as authority for finding that the lack of evidence going to the subjective element of the claim was a “fatal flaw”. Mr. Justice Harrington too, cited Ward when he held in NazirNote 25 that it was not necessary for him to rule on other issues in that case because “even if there were grounds for an objective fear, there must also be a subjective fear of persecution.”

5.2.2. Establishing a subjective fear

Claimants usually seek to establish that they have a subjective fear of persecution by testifying or presenting other credible evidence that they genuinely fear persecution. Normally, where the claimant is found to be a credible witness and their testimony is consistent, the claimant’s evidence will be sufficient to meet the subjective aspect of the test.Note 26

In some situations, a claimant may be incapable of experiencing or articulating a subjective fear. In Yusuf,Note 27 the Court mentioned that children or persons suffering from mental disability may be incapable of experiencing fear. In Patel,Note 28 the Court noted that either age or disability may cause a claimant to be incapable of articulating their subjective fear in a rational manner. If a claimant is not competent and the evidence establishes an objective basis for fear of persecution, the parent or other person acting as the claimant’s designated representative may establish a subjective fear.Note 29 However, the claim must be evaluated from the perspective of the minor.Note 30 In some cases, it may be possible for the tribunal to infer a subjective fear from the evidence. As the Court pointed out in Patel, it is rare that a claimant who has good reason to be afraid will not be – unless the claimant is incompetent, exceptionally committed to a cause, or perhaps just foolhardy.

However, judicial reviews are seldom about such cases. Far more often, they concern claimants who have not met their burden of establishing the subjective component of a well-founded fear because of a credibility issue.

The relationship between subjective fear and credibility has been analyzed from various perspectives and the Court and Court of Appeal have provided a number of observations on this subject, including the following:

  • MacGuigan, J. in ShanmugarajahNote 31: “(…) it is almost always foolhardy for a Board in a refugee case, where there is no general issue as to credibility, to make the assertion that the claimants had no subjective element in their fear (…)”. (underlining added)
  • Cullen, J. in ParadaNote 32 held that if a claimant testifies that they fear for their life and there is evidence to reasonably support those fears, it is improper for the Board to reject that testimony out of hand without making a negative finding of credibility.
  • Teitelbaum, J. in AssadiNote 33 wrote: “Failure to immediately seek protection can impugn the claimant's credibility, including his or her testimony about events in his country of origin.”
  • Joyal, J. in several cases, including Parmar,Note 34 stated that the subjective component of the well-founded fear test depended solely on the claimant’s credibility.
  • Cullen, J. in DirieNote 35: “Once the objective grounds for the claimant’s fear are present, it is very likely that a subjective fear is also present unless the Board questions the claimant’s credibility. (underlining added)
  • Lemieux, J. in HatamiNote 36 held that the Board had no evidentiary basis on which to conclude that the claimant did not have a genuine subjective fear of persecution when her subjective fear was clearly established in her PIF and the Board had found her evidence credible.
  • Beaudry, J. in HerreraNote 37 first cites Ward to say that the determination of the existence of a subjective fear is based on the claimant’s credibility. Then, heagrees with the respondent that the absence of subjective fear “may be fatal to a refugee claim, beyond the simple negative inference of credibility.”
  • Blais, J. in AhouaNote 38:  “The Minister properly pointed out that a negative finding regarding subjective fear may render the assessment of the objective aspect of the complaint superfluous and may in itself warrant the dismissal of the claim.”
  • Mactavish, J. in Hidalgo TranquinoNote 39: “Having accepted Ms. Hidalgo’s evidence as truthful, including the explanation that she provided for her failure to claim elsewhere, it was simply unreasonable for the Board to dismiss her claim for protection under section 96 on the basis that she lacked subjective fear.”
  • Bédard, J. in Gomez,Note 40 afterstating that a finding of a lack of subjective fear is determinative only for a section 96 claim, adds that “subjective fear may sometimes be relevant when assessing the truth of the allegations of a person who claims to be a person in need of protection (…)”.
  • O’Keefe, J. in KuninNote 41:“A finding that a claimant lacks a subjective fear of persecution necessarily impugns any claimant’s credibility.” The Court does add a caveat to the effect that this finding may impugn only one aspect of the claimant’s credibility and does not equate to a finding that the claimant is less than credible in all aspects of the claim and thus an analysis of the claim under IRPA s. 97 may still be required.Note 42

When the Board concludes that a claimant who alleges having a fear is not credible concerning the existence of subjective fear, it almost always does so on the basis of behaviour of the claimant that it considers to be inconsistent with that allegation.

The Court has confirmed that there are certain ways that persons fearful of serious harm can normally be expected to act , including seeking refugee protection at the earliest reasonable opportunity. Asthe Court stated in Aslam,Note 43

The Board would expect that individuals who fear for their personal safety and their life would not only flee at their earliest opportunity but would seek refugee protection as soon as they are beyond the reach of their persecutors and it is reasonable to do so.

Consequently, staying any longer than necessary in a country where a claimant fears persecution, passing through other countries without asking for protection , failing to make a claim for protection immediately upon arrival in Canada and voluntarily returning to the country of persecution are all behaviours that have been found to be indicative of a lack of subjective fear. None of these behaviors mandates the rejection of a claim to Convention refugee status without further examination. However, a decision-maker may be justified in drawing a negative inference when claimants are unable to provide satisfactory explanations for conduct that seems incompatible with their alleged fear.

In addition to seeking protection in a timely manner, there are other types of conduct normally associated with being fearful. If a claimant provides credible evidence demonstrating efforts to avoid detection, such as going into hiding,Note 44 this evidence is considered to support the existence of subjective fear. Conversely, adverse inferences may be drawn when claimants fail to vary their routineNote 45 or to take other precautions against falling victim to the persecution they claim to fear.Note 46

5.3. Delay in seeking protection

When claimants do not take steps to seek protection promptly, the Board may conclude that their behaviour shows a lack of subjective fear.

The case law has been consistent in saying that delay in making a claim to refugee status is not, in itself, determinative. Three often-cited Federal Court of Appeal decisions, Hue, Heer, and Huerta, acknowledged that delay is, nonetheless, a relevant, and potentially important consideration.Note 47 In Huerta, Mr. Justice Létourneau wrote:

The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.Note 48

Delay, in the absence of a satisfactory explanation, can impugn a claimant's credibility and suggest that they do not have a genuine subjective fear. As Madam Justice Simpson explained in Cruz,Note 49 the reason why delay is an important factor in the assessment of a refugee claim is because it addresses the existence of a subjective fear, which is an essential element of a Convention refugee claim.

In Renee,Note 50 the Court held that it is “well-settled that delay in claiming protection ‘can be inconsistent with subjective fear because generally one expects a genuinely fearful claimant to seek protection at the first opportunity'…Absent a satisfactory explanation as to why protection was not sought at the first opportunity, it is open to the decision-maker to conclude that, despite what the claimant now says, he/she does not actually fear persecution”.

Although not generally a determinative factor in a refugee claim, there are circumstances in which delay can assume a decisive role. A claim to be a Convention refugee may be rejected when unexplained delay is accepted as evidence that establishes, on a balance of probabilities, that the claimant lacks subjective fear.Note 51 In Velez, Justice Crampton remarked that it is:

[…] well established that, in the absence of a satisfactory explanation for the delay, the delay can be fatal to such claim, even where the credibility of an applicant's claim has not otherwise been challenged.Note 52

The Board must weigh the evidence and it may reject an explanation for the delay if it finds it inadequate or implausible on reasonable grounds.

In Zhuang,Note 53 the Court held that “delay in claiming protection may be a valid factor to consider as the basis for concluding that an applicant does not possess the requisite subjective fear, however, such a delay not does not automatically result in such a finding. Rather the circumstances and potential explanations must be considered.”

It is essential that Board members express clearly their findings on the credibility of a claimant's explanation for behaving in a particular manner.Note 54 When the Board does not accept an explanation as valid, it is obliged to give reasons.Note 55 In Martinez Requena,Note 56 the Board asked the claimant to explain why she had returned to Bolivia, and then simply concluded that she had no subjective fear of persecution. Madam Justice Dawson held that the Board could not make that finding unless it found the evidence to be incredible - which it had not done.

The length of the delay is often a factor taken into considerationNote 57 but it is not, in and of itself, determinative. While short delays may tend to be more easily explained,Note 58 even very long delays cannot be assumed to indicate a lack of subjective fear. They must be examined in light of the circumstances and the explanations offered by the claimant. In John,Note 59 the Board found a six-year delay in claiming to be incompatible with the attitude of a person who feared for her life. However, the claimant was a minor when she arrived to live with some relatives in Canada and the Court held:

[…] There is a presumption that a person having a well-founded fear of persecution will claim refugee protection at the earliest opportunity. If they do not, the legitimacy of the subjective fear that they allege is called into question (Singh citation omitted) This presumption makes sense in the context of an adult refugee who, upon entering Canada, is expected to be aware that in order to stay in Canada indefinitely, he or she will need to regularize their status. However, the mere existence of delay in claiming cannot always be construed as indicating an absence of subjective fear. The delay, and even more importantly, the reasons for the delay, must be assessed in the context of the specific circumstances of each case. (underlining added)

Canadian case law has consistently stressed that the assessment of the credibility and reasonableness of explanations must be done in light of the particular circumstances of the claimant. In the case of El-Naem,Note 60 the Courtfound that the 19-year-old Syrian claimant's explanation for spending a year in Greece without claiming was not unreasonable “considering all of his circumstances.” The young man testified that he had heard that refugee protection in Greece was problematic and he feared deportation to Syria if he exposed his illegal status. He was alone in Greece, anxious to join a brother in Canada who had successfully claimed refugee status.  However, he first had to accumulate the money he needed to travel.

In a similar vein, case law has also pointed out the need to closely assess the reasons a claimant engages in behaviour that would normally be seen as incompatible with having a fear. In Ribeiro,Note 61 the Board found that the claimant had no subjective fear because he continued to put himself at risk by returning home to protect his mother against her abusive husband and the Court observed that bonds of family loyalty may lead a person to engage in dangerous conduct that otherwise could be viewed as conduct inconsistent with a lack of subjective fear.

The Court in ChenNote 62 held that when assessing the significance of delay, the decision-maker must consider whether the claimant acted consistently with the fears that they are alleging rather than the fears that the decision-maker may believe that the claimant should have had:

“[what] is in issue when assessing the significance of delay is what a claimant says he or she actually feared and whether he or she acted consistently with those fears. This is a subjective inquiry, not an objective one. In the present case, it is appropriate to ask whether the claimant acted consistently with any fears that he claimed to have. It is of no assistance to ask whether he acted consistently with fears he never claimed to have but which, in the view of the RAD, he should have had.”

Psychological reports may provide useful insight into the reasons for a claimant's behaviour, and thus whether or not a particular way of behaving can be taken to be indicative of an absence of fear. In Diluna,Note 63 the Court held, in obiter, that the Board should have considered a psychiatric assessment that supported the claimant's assertion that she delayed seeking refugee status due to post-traumatic stress syndrome.  

Not all expert reports, however, are probative regarding the issue of subjective fear. In one case,Note 64 the Court noted that though there was a psychological report, it provided no explanation justifying the claimant's 14-month delay in claiming protection in Canada. In Sabapathy,Note 65 in which the claimant had voluntarily given up protection in the U.K., it was argued that her mental disorders would have affected the rationality of her decision to give up protection. The Court rejected that argument because the psychiatric report submitted was dated more than two years after the claimant left the U.K. and did not establish that the claimant was suffering from any mental disorder at the time she gave up protection.

5.3.1. Summary of Governing Principles

The Court summarized the governing principles concerning delay in seeking protection in Chen:Note 66

  1. a) Delay in seeking refugee protection is not determinative of the claim; rather, it is a factor the decision-maker may take into account in assessing the claim’s credibility (Calderon Garcia v Canada (Citizenship and Immigration), 2012 FC 412 at paras 19-20).
  2. b) In particular, delay can indicate a lack of fear of persecution in the country of reference on the part of the claimant (Huerta v Canada (Minister of Employment & Immigration), [1993] FCJ No 271 (FCA), 157 NR 225). Put another way, delay can be probative of the credibility of the claimant’s assertion that he or she fears persecution in the country of reference (Kostrzewa v Canada (Citizenship and Immigration), 2012 FC 1449 at para 27).
  3. c) Whether there has been delay and, if so, its length must be determined with regard to the time of inception of the claimant’s fear as determined from the claimant’s personal narrative.
  4. d) The governing question is: Did the claimant act in a way that is consistent with the fear of persecution he or she claims to have?
  5. e) Delay in seeking protection can be inconsistent with subjective fear because generally one expects a genuinely fearful claimant to seek protection at the first opportunity (Osorio Mejia v Canada (Citizenship and Immigration), 2011 FC 851 at paras 14-15).
  6. f) When a claimant has not sought protection at the first opportunity, the decision maker must consider why not when assessing the significance of this fact. A satisfactory alternative explanation for why the claimant waited to seek refugee protection can support the conclusion that the delay is not inconsistent with the fear of persecution alleged by the claimant. Absent a satisfactory alternative explanation, it may be open to a decision-maker to conclude that, despite what the claimant now says, he or she does not actually fear persecution and that this is why protection was not sought sooner (Espinosa v Canada (Citizenship and Immigration), 2003 FC 1324 at para 17; Dion John v Canada (Citizenship and Immigration), 2010 FC 1283 at para 23 [Dion John]; Velez v Canada (Citizenship and Immigration), 2010 FC 923 at para 28).
  7. g) Whether an alternative explanation is satisfactory or not depends on the facts of the specific case, including the claimant’s personal attributes and circumstances and his or her understanding of the immigration and refugee process (Gurung v Canada (Citizenship and Immigration), 2010 FC 1097 at paras 21-23; Licao v Canada (Citizenship and Immigration), 2014 FC 89 at paras 57-60; Dion John at paras 21-29).

In Zeah,Note 67 the Court, after reiterating the general principles set out in Chen and Guecha Rincon, identified three key factual questions that must be answered:

  1. (1) According to the claimant, when did their subjective fear of persecution crystalize?
  2. (2) When did the claimant first have an opportunity to make a refugee claim?
  3. (3) Why, according to the claimant, did they not take up that opportunity?

It is only unexplained delay after the fear has crystalized and after it was possible to seek protection that can reasonably support an inference that the claim of subjective fear should not be believed because of the delay in seeking protection.

5.4. Types of delay

As indicated above, persons are generally expected to seek refugee protection at the first reasonable opportunity.Note 68 Consequently, staying any longer than necessary in a country where a claimant fears persecution, passing through other countries without asking for protection or failing to make a claim for protection immediately upon arrival in Canada are all behaviors that have been found to be indicative of a lack of subjective fear.Note 69

5.4.1. Delay in leaving the country of persecution

Mr. Justice Shore stated in RahimNote 70 that “[T]he time it takes an applicant to leave his or her country of origin can be taken into account in determining whether that person had a subjective fear of persecution.”

Delay in leaving the country if a claimant alleges they had reason to fear persecution there normally calls into question the credibility of the fear. In Zuniga,Note 71 the claimant alleged that he feared for his life and that of his family, and yet his wife and children, who already had visas, did not leave the country at the first opportunity. Nor did he himself follow as soon as he could.  The whole family left Honduras five months after the principal claimant was issued his U.S. visa. The Court did not accept his explanation that he remained to arrange his papers and pay taxes as reasonable.

The failure to leave in a timely manner must be assessed in light of all the circumstances.Note 72 In Gebremichael,Note 73 the claimants remained in hiding in their country for a month, despite having acquired visas for the U.S . The Board drew an adverse inference concerning their subjective fear, a conclusion which the Court upheld as reasonable and clearly explained. It is interesting to note, however, that as a preface to its analysis of the issue, the Court wrote that delay in fleeing a country could normally be justified if the claimant was in hiding at that time.

When a claim is based on a number of discriminatory or harassing incidents which culminate in an event which forces a person to leave his country, the Court has warned that it is problematic to consider delay to be indicative of an absence of subjective fear. In Voyvodov,Note 74 the first of the two claimants left Bulgaria after being beaten by skinheads. His partner stayed and endured other incidents of violence and discrimination.  The Board considered that the first claimant had failed to meet his burden because he had experienced only one incident. It then went on to express its concern about the second claimant having delayed his departure from the country. The Court observed:

[…] The tribunal appears to place the applicants in an impossible position. It implies that it does not believe Mr. Galev’s claim of persecution because he only experienced one alleged attack due to his sexual orientation. On the other hand, it finds that Mr. Voyvodov is not credible because he delayed seeking international protection after being initially attacked.

The Court was similarly critical of the Board’s conclusion in Shah,Note 75 describing the claimant as being “between a rock and a hard place”. The Board rejected the claim essentially because the claimant waited a year and a half rather than fleeing when his troubles first started.  The Court found the Board’s conclusion unreasonable in view of the claimant’s explanation that the threats had become progressively more serious, that he moved from home the same evening his life was threatened and left the country the next month.

The analytical flaw was more fully explained by Justice Heneghan in IbrahimovNote 76:

[…] If a person's claim is actually based on several incidents which occur over time, the cumulative effects of which may amount to persecution, then looking to the beginning of such discriminatory or harassing treatment and comparing that to the date on which a person leaves the country to justify rejection of the claim on the basis of delay, undermines the very idea of cumulative persecution.

5.4.2. Failure to seek protection in other countries

A claimant's behaviour after leaving their country, but before arriving in Canada, may be taken into consideration in determining whether a claimant has established a subjective fear of persecution. Failure to seek the protection of another country that is also a signatory to the Convention may be a significant factor to consider but it is not, in itself, determinative. Voluntarily leaving a country where the claimant could safely live is another example of behaviour that can cast doubt on a claimant's subjective fear.Note 77

There is no provision in the Convention that obliges refugee claimants to seek asylum in the first country they reach.Note 78 However, there is a presumption that persons fleeing persecution will seek protection at the first opportunity, which would normally be in the first country they reach. Case law states that a negative inference can be drawn from a claimant's failure to claim in a safe third country, but it also clearly states that this failure cannot be determinative.Note 79 The claimant's explanation must be considered in order to determine whether the claimant's behaviour can fairly be considered to be evidence of a lack of subjective fear.Note 80

For example, some jurisprudence has suggested that where the claimant had a legal status in the third country, and was therefore not at immediate risk of removal, it is not reasonable to draw a negative inference from the claimant's failure to claim in that country.Note 81

Another important consideration is the age of the claimant. In Pulido Ruiz,Note 82 the Court noted that an adolescent cannot necessarily be held to the same standard of behavior as an adult:

[I]t goes without saying that a child does not have the same capacities as an adult. Even though the IRB seemed to have considered [the applicant's] age in its decision, it found that he should have behaved like an adult and claimed asylum at the earliest opportunity. However, [he] was barely 15 years old. It seems unlikely to us that an adolescent would know the complexities and subtleties of the administrative apparatus with respect to asylum and be able to gauge the rough waters of the immigration process in the United States without an adult's help. Imposing such a burden on an adolescent seems unreasonable to us.

Whether or not a country is a signatory to the Convention is relevant to determining whether it is reasonable to expect the claimant to have sought protection there. It is clearly a factor for decision-makers to consider.Note 83

The significance of the failure to claim and the resulting conclusion of an absence of subjective fear is highlighted by the case of MemarpourNote 84 where, despite finding that the claimants had been denied a fair hearing, Madame Justice Simpson declined to send the case back for rehearing. She made this rather exceptional ruling because she had no doubt that the Board would again reject the claim, based on the claimant's conduct which indicated a total lack of a subjective fear of persecution. In the ten-year period after he left Iran, the claimant studied and worked in several countries but never sought asylum in any of them. His testimony that he was deterred from claiming by the prospect of line-ups at embassies showed how little importance he attached to the issue of protection. Moreover, he travelled extensively on false documents, apparently little worried by the prospect of being discovered and deported to Iran.

In cases concerning claimants who do not claim in a third country, their reasons for not claiming are rarely as easy to dismiss as a reluctance to wait in line. There are many cases of claimants whose intention it is to claim refuge in Canada, and who simply transit through other countries on their way. Some claimants say that they were not aware that they could ask for asylum in the other country. Others chose not to claim in the third country because they had been warned that they have little chance of success there. A reviewing court will normally uphold a decision that considers whether the explanation is reasonable in light of the circumstances of the claimant, including whether they have engaged in other conduct that tends to support or undermine the subjective fear element.

In Clervoix,Note 85 the Court held that a claimant's failure to seek information or clarification regarding their status following an initial negative asylum claim may also be considered inconsistent with the claimant having a genuine fear.

5.4.2.1. Explanations for not seeking protection in other countries

The following are examples that illustrate how the various factors have been weighed:

  • In transit
  • The Court has frequently held that a short stay in a safe third country en route to Canada is not necessarily considered a sufficiently material sojourn to create an expectation that the claimant would claim refugee status during that stay.Note 86

    A failure to make a refugee claim in a third country may raise doubt that a refugee claimant has a subjective fear (citation omitted). However, where a claimant had always planned to come to Canada, and merely was in transit during a stopover in a third country, the Court has held that such a situation does not undermine the subjective fear of persecution.Note 87

  • Family in Canada
  • Failure to make a refugee claim in an en-route country because the claimant would rather make the claim in Canada because they have family here may be a valid reason for not making the claim at the first opportunity.Note 88

  • Ignorance of the process
  • In Perez,Note 89 the Court upheld the Board's finding that the claimant who spent five years in the U.S. before claiming refugee protection in Canada did not provide convincing evidence of his subjective fear. His testimony that he was unaware he could claim asylum in the U.S. was found implausible in light of his repeated attempts to apply to stay under another U.S. program which offered temporary protection.

    In Idahosa,Note 90 the Court found that it was reasonable for the Board to conclude that the appellant would have some understanding that she could claim refugee status in the United States in light of the contradictory evidence she gave. On the one hand, she stated she left the United States to come to Canada due to her concerns about changes in American refugee policies. On the other hand, she denied knowing she could file a refugee claim in the United States.

    In Bello,Note 91 the claimant from Cameroon lived in France for seven years, traveled in adjoining countries and lived in the U.S. for another six months, without ever claiming refugee status. The Board found this to be inconsistent with a subjective fear of persecution. It noted that all the countries in question were either signatories to the 1951 Convention or to the 1967 Protocol. The reason given by the claimant for not seeking protection was that France supported the Cameroonian government, and as for the neighbouring countries, he did not know about claiming refugee status. The Court held that it was open to the Board to disbelieve the claimant had a subjective fear of persecution, given the delay in claiming refugee status. It noted that the Board's conclusion was also influenced by the claimant having returned twice to Cameroon.

    In Kayode,Note 92 the Board rejected the claimant's explanations for not seeking protection in the United States. One of the explanations was that she did not realize that she could claim asylum in the United States. The Court held that it was not unreasonable for the Board to reject the claimant's explanation. There was nothing in the claimant's background to explain her failure to seek out even basic information about how to seek asylum in the United States. The claimant was a literate and reasonably well-educated woman and she had experience with international travel and at least rudimentary knowledge of immigration procedures.

  • Little hope of success
  • In Madoui,Note 93 an Algerian claimant failed to claim during 19 months in Italy. He had been told by friends that he had little, if any, chance of obtaining refugee status in Italy. Despite statistics in evidence showing that similar claims were rarely accepted, the Board was not satisfied that the subjective component had been met and the Court saw no error in the Board's assessment.Note 94

    In Mekideche,Note 95 when the Board asked why the claimant did not claim refugee status during his two years in Italy, he testified that it was because he believed that Algerian refugees would be denied and returned to Algeria. This belief was based on news reports that other European countries were not receptive to Algerian refugees. Noting that he travelled throughout Europe with false documentation before arriving in Canada, the Board stated that this was a risk that a person who feared persecution would not take. The Court found no error in the Board's conclusion that these two issues showed an absence of a subjective fear of persecution.

    In another case,Note 96 a young Pakistani claimant who arrived in the U.S. came to Canada after just nine days. He feared that he would not be considered for asylum because of the negative atmosphere towards persons from his part of the world following the September 11 attack. The Court held that the circumstances were comparable to those in El NaemNote 97 and that the Board had erred in drawing an unreasonable inference that there was no subjective basis to the claim.

    In Liblizadeh,Note 98 the Court quashed the decision of the Board when it found that there was no evidence before the panel that the claimant could realistically have applied for refugee status in Turkey, even though he was there 7 months, and in the U.S., where he was only in transit.

  • Specifically seeking protection in Canada
  • In Pepaj,Note 99 the Court upheld the Board's decision not to accept the applicants' explanation that they did not claim at the first opportunity because they “wanted” to come to Canada for its “very good refugee protection”. The Court commented that this was not an explanation that justifies the applicants' failure to claim in the numerous safe countries that they had travelled through.

    A few cases have pointed out that failure to claim in a third country may not be indicative of a lack of subjective fear in situations where a person is not anticipating a return to their country. These were the circumstances in Yoganathan.Note 100 Mr. Justice Gibson followed the same reasoning as the Court of Appeal in Hue.Note 101 Both cases involved seamen. Justice Gibson held that the Board erred in concluding that the claimant did not have a subjective fear of persecution as he had failed to claim refugee status at the first opportunity in other signatory countries: “The [claimant] had his 'sailor's papers' and 'a ship to sail on'. In the circumstances, he did not have to seek protection. He was safe from persecution in Sri Lanka.”

    Leaving a country which has provided refuge and where a claimant has no fear of persecution is generally considered to be behaviour indicative of a lack of subjective fear. In Shahpari,Note 102 the Court suggested, in obiter, that:

    Applicants should also remember that actions they themselves take which are intended to result in their not being able to return to a country which has already granted them Convention refugee status may well evidence an absence of the subjective fear of persecution in their original country from which they purport to be seeking refuge.

    In Geron,Note 103 the Board concluded that the claimants, citizens of the Philippines, were not credible and lacked subjective fear, as evidenced by the long delay before they claimed refugee status and the fact that they had valid residence permits for Italy but allowed them to lapse during the 18 months they remained in Canada prior to making their claims. The Court held that the Board had not erred in failing to consider the objective basis of the claim; it could be dismissed in the absence of any credible evidence to support the claimants' subjective fear.

    Even where the refuge is not necessarily a permanent one, questions about the claimant's fear will usually be raised whenever a safe haven is abandoned in order to claim refugee status in Canada. In Bains,Note 104 a claimant from India who applied for asylum in England, left after waiting five or six years without an answer. He explained that he had heard that the British authorities were removing claimants awaiting status, though he produced no evidence of this. The Court noted that the British authorities had clearly told the claimant that he would not be deported before a decision on his status had been made. The Court considered that the CRDD was justified in verifying the reason the claimant gave for leaving England and that it was reasonable to conclude that the claimant's decision to leave did not demonstrate a fear of being returned to India.

5.4.3. Delay in making a claim after arrival in Canada

A claimant's delay in making a refugee claim after arrival in Canada may be a relevant factor when considering whether the claimant has shown a subjective fear of persecution. Mr. Justice Shore summarized the basic principles related to delay in claiming once in Canada:

There is a well-established principle to the effect that any person having a well-founded fear of persecution should claim refugee protection in Canada as soon as he or she arrives in the country, if that is his or her intent.  On this point, the Federal Court of Appeal has already concluded that any delay in claiming refugee protection is an important factor which the Board may take into consideration in its analysis.  Such a delay indicates a lack of a subjective fear of persecution, since there is a presumption to the effect that a person having a well-founded fear of persecution will claim refugee protection at the first opportunity.  Accordingly, in conducting its assessment, the Board is entitled to take into consideration the applicant's delay in claiming refugee protection. [citations omitted]Note 105

There is case law dealing with the issue of timing; namely whether the proper reference point is always the date of arrival in Canada. The Court in GabeyehuNote 106 stated otherwise. The Court noted as a general proposition that “[d]elay in making a claim can only be relevant from the date as of which [a claimant] begins to fear persecution.”  It is the same principle applied to a sur place claim.Note 107

Because delay is relevant only after the claimant has a reason to fear persecution, it has been argued that negative inferences cannot be drawn when a person who has  legal status in Canada fails to claim.  In Gyawali,Note 108 Madame Justice Tremblay-Lamer agreed that there exist situations in which negative inferences may not be drawn from a failure to apply for refugee status immediately upon arrival.  She found that a valid status in Canada could constitute a good reason for not claiming refugee protection. The Court drew a parallel between the sailor on the ship whose contract expired, leaving him nowhere to go but home,Note 109 and the claimant, who had a student visa and had also made an application for permanent residency in Canada. Until he could no longer pay for his studies, he had no reason to fear having to return to his country. Both the sailor and the student had left their countries fearing persecution, but having found a safe place to stay, they felt no immediate need to apply for refugee status. As soon as they found themselves at risk of being forced to return home, they filed claims for refugee protection.

In several cases, the Court has upheld Board decisions in which possession of a valid but temporary status was not found to be an acceptable reason to delay claiming protection. Madame Justice Tremblay-Lamer, the year before her ruling in Gyawali, held that it was open to the Board to reject a claim based largely on a two-year delay in claiming refugee status. The claimant in that caseNote 110 was on a student visa in Canada.  On the advice of a consultant, he applied for permanent residence and claimed refugee status only after his permanent residence application was unsuccessful. Other cases of persons in status were similarly rejected in 2005 and 2007.Note 111 In 2009, Mr. Justice de Montigny wrote:

It is trite law that a delay in submitting a refugee protection claim, while not decisive, remains a relevant element that the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant: Huerta [citation omitted]. The claimant knew upon his arrival in Canada that he was only authorized to stay in Canada for a specific and limited period of time. Under these circumstances, it was reasonable to expect that he would regularize his status as soon as possible if he truly feared for his life and physical integrity in India.Note 112

Apart from persons who do not feel the need to claim immediately, there are claimants who have no knowledge of the refugee process or their eligibility to claim protection. In the absence of any adverse credibility finding, the explanation that a claimant did not know that she could claim refugee status based on spousal abuse has successfully been used to refute findings that lengthy delays in claiming were due to an absence of subjective fear.Note 113

In Ahshraf,Note 114 the Court found that the Board's finding that the claimant's five-year delay in filing her claim showed her fear was not genuine was unreasonable as there was evidence that while her husband was in Canada, she had been entirely under his influence and never left the house alone.

In a case where the claimant did not claim refugee status for four years because he wanted to know what was needed to claim,Note 115 his explanation was not accepted. The Board interpreted the fact that he renewed his visa twice without ever making inquiries about claiming refugee status as evidence that he had no subjective fear. The Court saw nothing unreasonable about that conclusion.

Depending on the advice or help of others has also been held to be an unsatisfactory reason to delay claiming. For example, in Singh,Note 116 the claimant waited almost one and a half years after he arrived in Canada before filing his refugee claim. The RPD did not accept the claimant's explanation that he had asked the gurdwara management to help him file for political asylum but that whenever he asked them about his immigration status, he received no satisfactory response. The Court dismissed the judicial review on the grounds of delay, saying it was not reasonable that someone fearing for his life would not take any action himself. When the claimant had not received any help for almost a year and a half, he should have taken the initiative and inquired about his rights and obligations under the Canadian immigration system.

However, in Harry,Note 117 the Court held that the applicant's explanation that she was acting on legal advice was reasonable and that the RPD's reasons for rejecting her explanation were speculative. Similarly, in Asri,Note 118 the Court found that there was nothing inherently implausible in the applicant's explanation that he held off making a refugee claim once he was safe in Canada on a visitor visa because he was waiting for further advice from the agent who had assisted him in coming to Canada.

5.5. Return to country of persecution - reavailment

A claimant's return to the country where they allegedly face persecution can call their subjective fear into question. The term “re-availment” is often used when referring to a return to a country of persecution.Note 119

The issue of reavailment can arise in the context of the Board's assessment of a claimant's subjective fear in the determination of a refugee claim . It can also arise in the context of an application by the Minister under section 108 of the IRPA to cease a person's refugee protection.Note 120

The Court has held in numerous cases that it is reasonable for the Board to take reavailment into account when assessing a claimant's subjective fear.

Return to the country of nationality is the kind of re-availment that is most often discussed in the case law. In Kabengele,Note 121 Mr. Justice Rouleau, citing several cases, stated that it was reasonable for the Board to conclude that the claimant's return to the country where he allegedly faced persecution made it unlikely that he had a subjective fear:

It is quite proper for the Refugee Division to take the plaintiff's actions into account in assessing his subjective fear. It is reasonable for it to conclude that the fact he returned to the country where he feared persecution makes the existence of such a fear unlikely (citations omitted)

In Ortiz Garcia,Note 122 the Court held that reavailment typically suggests a lack of a subjective fear of persecution:

[8] Reavailment typically suggests an absence of risk or a lack of subjective fear of persecution. Absent compelling reasons, people do not abandon safe havens to returns to places where their personal safety is in jeopardy.

Similarly, in Kostrzewa,Note 123 the Court stated:

[26] …As has been repeatedly held by this Court, a refugee claimant's re-availment to the jurisdiction in which he or she fears persecution or a type of harm contemplated by section 97 of the IRPA seriously undermines allegations of subjective fear, particularly in the absence of a compelling reason for such re-availment (Hernandez v Canada (Minister of Citizenship and Immigration), 2012 FC 197 at para 21; Ortiz Garcia v Canada (Minister of Citizenship and Immigration), 2011 FC 1346 at para 8; Mughal v Canada (Minister of Citizenship and Immigration), 2006 FC 1557 at paras 33-35; Natynczyk v Canada (Minister of Citizenship and Immigration), 2004 FC 914 at para 69).

Board must consider the claimant's explanation for return

Although a person's return to their country of nationality may undermine an allegation of subjective fear, the Court has cautioned that the mere fact of returning to a country of nationality is not determinative of whether a refugee claimant possesses a subjective fear . The Board must also consider any explanation offered by the claimant for their return to their home county. The Court has pointed to evidence of a claimant's belief that country conditions have changed or evidence of a claimant's temporary visit while they remained in hiding as examples of evidence that would be inconsistent with a finding of a lack of subjective fear.Note 124

In Sanchez Hernandez,Note 125 the Court agreed that return or reavailment to the state of origin is perhaps the clearest indication that a refugee claimant no longer views themself as being as risk. It is a clear indication that the claimant is willing to entrust their welfare to that state. However, there may be exceptions to those general rules and that requires that the Board consider the explanation offered by a claimant who has returned to the state of origin. The Board cannot simply state that there is no subjective fear because of the fact of reavailment.

The Board's credibility assessment of the reasons that claimants give for returning to their country is important. In Kanji,Note 126 the Board found that the claimant's return to India had negated her subjective fear. However, the Court held that the Board erred in making this finding. The claimant had testified that she did not reavail herself of India's protection nor did she lose her subjective fear . The Board did not make an express finding that it disbelieved the claimant's testimony. In the absence of a credibility finding, the Board erred by finding that the claimant had no subjective fear on the basis of the circumstantial evidence of her returns to India.

In Caballero,Note 127 where the claimant testified that he went back to Honduras intending to stay a year in order to sell his land, the Court agreed with the Board that his behaviour was inconsistent with a well-founded fear of persecution.

In Best,Note 128 the Court found that the claimant's repeated reavailments to Barbados provided a reasonable basis for the Board to conclude that the claimant lacked a subjective fear of persecution. While the claimant had offered an explanation, it was within the Board's discretion to consider and reject the claimant's explanation and it was clear from the transcript that the Board had done so.

In Khakimov,Note 129 the Court held that it was open to the Board to conclude that reavailment was determinative given the claimant's record of continuous uncompelled reavailments.

Even where the motivation for returning may be seen as quite compelling, a consideration of all the circumstances may result in a negative inference as to the existence of subjective fear. In Arayo,Note 130 the principal claimant had returned to Chile and remained there for some nine weeks while she obtained the permission of the father of her child to remove the child from Chile. While the evidence regarding reavailment clearly indicated that it was for the sole purpose of allowing the mother to bring her son to Canada with her, the evidence did not go so far as to establish that other arrangements could not have been made so that the two claimants could have left Chile together when the mother first left.

A claimant's fear of persecution may change over time. Accordingly, the fact that a claimant may have reavailed in the past does not necessarily mean that the claimant does not presently have a subjective fear. In Prapaharan,Note 131 where the claimants alleged they had suffered persecutory treatment before the first time they left Sri Lanka as well as after their return there, with the main claims pre-dating the claimants' return, the Court states that “subsequent persecution after re-availment does not preclude a person from making a claim for refugee status without being faced with the re-availment argument.” However, in Gopalapillai,Note 132 the claimant had returned to Sri Lanka and, after his return, had been arrested, questioned and beaten more than once. The Court held that “to the extent that the RPD considered that re-availment in 2008 was a bar to the claim, without considering subsequent events…this would be unreasonable.”

In Ali,Note 133 the claimants claimed that they were at risk in the Sudan. However, the principal claimant had made several trips back to the Sudan and the Board concluded that he did not have a subjective fear. The Court held that the Board erred because it had not considered the claimant's evidence that his fear of persecution had grown over time as a result of increased interest and brutal actions of the Sudanese authorities and that he had not returned to the Sudan again after being detained and beaten on his last trip.

The Court has held that it is an error to find a lack of subjective fear when the claimant was removed to their country, and thus did not return voluntarily. In Kurtkapan,Note 134 the Court found the Board's conclusion that the claimant lacked a subjective basis for a fear of persecution “perverse, capricious and unreasonable” because it ignored the fact that he was deported to Turkey and did not return there voluntarily.

Claimants may exhibit an apparent absence of subjective fear not only in physically returning to their home country, but also in actions such as obtaining or renewing a passport or travel documentNote 135, and leaving or emigrating through lawful channels.Note 136 The evidence is all assessed in the same way: the surrounding circumstances and the credibility of the claimant's explanations determine whether it can reasonably be concluded that they indicate the absence of the subjective component of a well-founded fear of persecution.

In Vaitialingam,Note 137 although the claimant argued that she did not intend to remain in Sri Lanka, the Court was satisfied that it was reasonable for the Board to conclude that the claimant did not harbour a genuine fear of persecution in Sri Lanka because she had voluntarily made two trips back to her country. The Board also considered that the claimant's renewal of her Sri Lankan passport for the purpose of travelling there indicated her willingness to entrust her welfare to the state of Sri Lanka.

In Chandrakumar,Note 138 the Court held that the Board erred in drawing the inference that the applicant reavailed himself of his country's protection from the mere fact that he renewed his passport. More evidence was required, particularly concerning the claimant's motivations in renewing his passport, namely whether his intention was to reavail himself of Sri Lanka's protection.

5.6. Objective basis for the claimant’s fear

In addition to showing that they have a genuine subjective fear of persecution, claimants must show that their fear is well-founded in an objective sense. Claimants may have a subjective fear that they will be persecuted if returned to their country, but the fear must be assessed objectively in light of the situation in that country, in order to determine whether the fear is well-founded.Note 139

When evaluating conditions in the claimant’s country of origin, the Board is required to consider evidence of the conditions as they exist at the time of the hearing.Note 140

In assessing whether a claimant has shown that their fear is well-founded, the Board must identify and apply both the proper standard of proof and the correct legal test. The standard of proof refers to the standard that the decision-maker should apply when assessing the evidence adduced for the purpose of making factual findings, whereas the legal test is the test for the likelihood of persecution which a claimant must establish in order to obtain Convention refugee status.

5.6.1. Standard of proof for factual findings

The standard of proof in a civil matter is always proof on a balance of probabilities unless the words of a stature or the context requires otherwise. The common starting point for a discussion of the standard of proof and the legal test for a refugee claim is the Court of Appeal’s in Adjei. In that case, the Court of Appeal held that a claimant must establish their case on a balance of probabilities.Note 141 In Alam, the Court cited Adjei and held that it is obvious that claimants must prove the facts on which they rely, and the civil standard is the appropriate means by which to measure to measure the evidence supporting their factual contentions.Note 142 In Nageem, the Court again reiterated that “[the] standard of proof, or the evidentiary burden as it is sometimes referred to, in assessing the risk described in paragraphs 96…is proof on a balance of probabilities. This is the standard of proof to be applied by the Board in assessing the evidence before it.”Note 143

The Court has held that certain phrasing in Board reasons, such as “we are not convinced”Note 144 or “the claimant did not persuade the panel”Note 145 implied overly exacting standards of proof.

5.6.2. Legal test to establish a risk of persecution

Claimants must establish the factual elements of their claim on a balance of probabilities, but they do not have to prove that persecution would be more likely than not.Note 146 The evidence must show only that there are "good grounds" for fearing persecution.Note 147 The test, which has become known as the Adjei test, was set out as:

Is there a reasonable chance that persecution would take place were the applicant returned to his country of origin?Note 148

In Li,Note 149 the Federal Court of Appeal cautioned against confusing the "standard of proof" and the "legal test to be met". The standard of proof refers to the standard the panel will apply when assessing the evidence adduced for the purpose of making factual findings, whereas the legal test is the test for the likelihood of persecution which a claimant must establish in order to obtain Convention refugee status.

Courts have used various terms to describe this test – "good grounds", "reasonable chance", and "reasonable" or even "serious" possibility, as opposed to a "mere" possibility. The test does not require a probability of persecutionNote 150 and asking claimants to establish that they "would" be persecuted in the future, has been held to be the wrong test.Note 151 However, in one case, the Court held that the Board did not err when it stated that there was insufficient evidence that the claimant would face a serious possibility of persecution, as the word "would" has "both a degree of certainty in some contexts and a degree of likelihood in other contexts". In the Court’s view, the Board was speaking of the reasonable likelihood, not the absolute certainty.Note 152

The test for the well-foundedness of a fear of persecution was further clarified in Ponniah,Note 153 where Desjardins J.A. stated:

"Good grounds" or "reasonable chance" is defined in Adjei  as occupying the field between upper and lower limits; it is less than a 50 per cent chance (i.e., a probability), but more than a minimal or mere possibility.  There is no intermediate ground: what falls between the two limits is "good grounds".

In Ioda,Note 154 theCourt referred to the test set out in Adjei and Ponniah and rejected the argument that when the Board based its negative decision on there being a "mere risk" of persecution, it was equivalent to finding a "mere possibility". In the Court’s view, "risk" conveyed a higher threshold of probability. The Court found in RajagopalNote 155 that the Officer misstated the test when he concluded that the claimant "would not be at particular risk".

In Sivaraththinam,Note 156 the claimant alleged that all he was required to establish was that there was more than a minimal possibility that he would be persecuted upon return to Sri Lanka. Justice Annis undertook a detailed examination of the wording of the legal test for section 96.  According to his interpretation of Adjei, the Court of Appeal was not proposing either "more than a mere possibility" or "not more than a 50 percent chance" as the test for determining a well-founded fear under section 96.  In his view, the Court was looking for a compromise standard between the two extremities, neither of which it suggested should apply. Justice Annis concluded that Adjei established the proper expression of the standard to determine a well-founded fear as a "reasonable chance", "reasonable possibility", "serious possibility", or "good grounds".  He went on to express his own preference:

[49] Returning to the issue of appropriate qualifiers of possibilities, chances, etc., I am of the view that any test not containing the term "reasonable" as a limitation should be shunned. This would leave the appropriate standard to be either a "reasonable chance" or a "reasonable possibility", as there is no distinction between a chance or a possibility.

The Court also cautions that if the Board sets out a multiplicity of misstated tests in its reasons, then later stating the test correctly elsewhere in the reasons will not cure those errors and the decision may not be saved.Note 157

5.6.3. Relationship between the standard of proof and the legal test

Practically speaking, a decision-maker must consider the evidence adduced by a claimant on a balance of probabilities for the purpose of making factual findings. The decision-maker must then assess whether those facts place the claimant at risk of persecution or, in other words, whether they establish that there is a “reasonable chance” of persecution.Note 158

The Court of Appeal has cautioned that the standard of proof must not be confused with the legal test to be met.Note 159 However, it is not always immediately clear whether the decision-maker is making a finding of fact or assessing the risk of persecution. For example, in Halder, the RPD found there was no serious possibility that the claimant would be prosecuted in a proposed internal flight alternative because, in part, it was more likely than not that the persecutors would not find the claimant in the IFA. The RAD considered the RPD’s decision and found that the inability of the persecutors to find the claimant in the IFA was a factual finding and that the RPD did not use the wrong test given that this finding of fact led to its ultimate finding that there is not a serious possibility of persecution in the IFA. However, the Court held that it was not correct for the RPD to state the claimant must prove that his past persecutors would find him in the IFA in the future on a balance of probabilities. Requiring proof of that outcome on a balance of probabilities amounts to requiring the claimant to prove a future risk of persecution on a balance of probabilities.Note 160 In Sivagnanam,Note 161 the Court considered whether the RPD had applied the wrong test when it found the claimant had an IFA. The RPD had held that the claimant’s profile is not one that will attract negative attention by the authorities in the IFA and therefore found that the claimant will not experience any significant difficulties or face persecution in the IFA. The Court concluded that the RPD’s reasons, when read in context and together with the record, did not elevate the test. The RPD’s reasons simply said, as a matter of fact, that the claimant’s profile will not attract attention and that the IFA is an option. It could not be inferred from the RPD’s reasons that the claimant must prove persecution.

In contrast, in Gomez Dominguez,Note 1632 the Court held that the RAD had erred in its application of the balance of probabilities standard in the course of finding that the claimant had an IFA in Colombia. The Court stated that “[a] conclusion as to the capacity or motivation of agents of persecution, while it may depend on certain facts, is essentially a risk assessment”. The Court went on to say “if the analysis is segmented and these elements must be proven on a balance of probabilities, there is little left to be assessed according to the standard of serious risk. Rather than considering whether the motivation and capacity of the agents of persecution had been proven on a balance of probabilities, the RAD should have conducted an overall assessment of the risk to which [the claimant] would be exposed on her return to Colombia and assessed whether that risk would be serious.”

5.7. Sur place claims

A Convention refugee is someone who has a well-founded fear of returning to their country of nationality or former habitual residence. A claimant’s fear usually arises from something that happened in that country before the claimant came to Canada. However, a sur place claim is one in which a claimant alleges that they have a well-founded fear of persecution because of events that occurred after they left. A claimant may claim to be at risk because of their actions in Canada, as a consequence of events which have occurred in their country of origin since departure,Note 163 or because of a significant intensification of pre-existing factors since departure.Note 164

The failure to assess the sur place claim can be a reviewable error.Note 165 It is an error to totally discount the evidence relating to the sur place claim without explaining why.Note 166

Evidence of political activities in Canada should be considered by the panel whether or not the claimant specifically raises a sur place claim.Note 167 However, where the decision is under reserve, the onus is on the claimant to request a reconvening of the hearing (before a final decision on the claim has been rendered) in order to consider the impact that any newly alleged sur place basis to the claim might have.Note 168

5.7.1. No good faith requirement for a sur place claim

The Court has held that it is proper for the Board to look at the fact that the claimant took allegedly self-endangering actions after making their claim, and to inquire into the claimant's motivation.Note 169

In Asfaw,Note 170 Mr. Justice Hugessen affirmed the relevance of motive in assessing the subjective component of a well-founded fear in cases where the claimants themselves were responsible for creating the circumstances leading to their sur place claims, but he also warned that the objective component nonetheless had to be assessed :

In my view, it has been the law for a very long time that a Convention refugee claimant must demonstrate both an objective and a subjective basis for his fear of persecution. It is my view that the case will be rare where there is an objective fear but not a subjective fear, but such cases may exist. In my view, it is certainly relevant to examine the motives underlying a claimant's participation in demonstrations such as this one in order to determine whether or not that claimant does have a subjective fear. The Board's examination of the motives was therefore not an irrelevant matter and the determination which they reached on that subject was one which was open to them on the evidence. It would I agree have been an error if the Board had stopped its examination at that point and had not also looked at whether or not the claimant had an objective fear but, they did not commit that error. The Board looked at the evidence with respect to the objective basis for the applicant's fear of return and found it not to be well-founded. That was a determination which was equally open to the Board on the evidence before it and I can take no issue with it.

In Zeweda,Note 171 a similar case that he decided on the same date, Mr. Justice Hugessen stated:

The argument is that it was irrelevant for the Board to examine the applicant's motives in acting as she did. In the view which I and other members of this Court have previously expressed, it is not irrelevant. The matter of motive goes to the genuineness or otherwise of the applicant's expressed subjective fear of persecution. That said, however, there is and must always be an intimate interplay between the subjective and objective elements of the fear of persecution which is central to the definition of convention refugee and, I have previously expressed the view that it would be an error for a Board to rely exclusively on its view that a claimant did not have a subjective fear of persecution without also examining the objective basis for that fear. The Board in this case, however, did not commit an error of that sort.

More recently, the Court has held that there is no “good faith” requirement in making a sur place claim and that a decision-maker should not reject a sur place claim solely on the basis that the claimant was acting for an improper motive without examining the potential risk to the claimant upon return to their country of origin.

In Ngongo,Note 172 the Court cited with approval the following passage from Professor Hathaway's The Law of Refugee Status:

It does not follow, however, that all persons whose activities abroad are not genuinely demonstrative of oppositional political opinion are outside the refugee definition. Even when it is evident that the voluntary statement or action was fraudulent in that it was prompted primarily by an intention to secure asylum, the consequential imputation to the claimant of a negative political opinion by authorities in her home state may nonetheless bring her within the scope of the Convention definition. Since refugee law is fundamentally concerned with the provision of protection against unconscionable state action, an assessment should be made of any potential harm to be faced upon return because of the fact of the non-genuine political activity engaged in while abroad.Note 173

In Ghasemian,Note 174 the Court held that, once the Board accepted that the claimant had converted to Christianity while in Canada and now risked severe punishment in Iran as an apostate, it had to consider whether the claimant would be viewed as an apostate regardless of the motive for her conversion. While it was open to the Board to reject her sur place claim on the basis of a lack of subjective fear, the Board misconstrued her evidence regarding her alleged lack of fear of reprisals and applied the wrong test by rejecting her claim on the basis that it was not made in good faith, i.e., she did not convert for a purely religious motive. The Court followed the reasoning of the English Court of Appeal in Danian,Note 175 that opportunistic claimants are still protected under the Convention if they can establish a genuine and well-founded fear of persecution for a Convention ground.

In Ejtehadian,Note 176 the Board's negative decision was based on its finding that the claimant's religious conversion was not genuine and was “nothing more than an alternative means to remain in Canada and claim refugee status.” The Court held that the Board erred in rejecting the claim because of the claimant's motivation for his conversion. Regardless of the claimant's motivation, it was still necessary for the Board to consider the credible evidence of the claimant's activities in Canada and assess whether those activities might place him at risk if he returned to his home country.

In Ye,Note 177 the Court cited its earlier decision in Ghasemian and agreed that the Board had erred by imposing a “good faith” requirement on a sur place claim.

The Board may still be able to find, in appropriate cases, that the claimant's activities were not likely to come to the attention of anyone in their country,Note 178 or that the claimant would not likely engage in such activities on return to their country.Note 179

5.7.2. Claimant’s activities abroad

A sur place claim may be based on the claimant's actions in Canada or elsewhere after leaving their home country.Note 180Sur place claims are often based on the claimant's political or religious activities in Canada.

According to paragraph 96 of the UNHCR Handbook, the key issues in cases based on the claimant's activities since leaving their home country are “whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities.” Even though a claimant's actions subsequent to departure may have come to the attention of the authorities there, it may nevertheless be that, in the circumstances, those actions do not give rise to a well-founded fear of persecution.Note 181

In Win,Note 182 the Court held that the standard to be used in assessing evidence relating to a surplace claim is likelihood, or balance of probabilities, that is, whether the claimant's activities were likely to come to the attention of the authorities of their country. 

In Gabremedhin,Note 183 the Court considered the application of the test for a sur place claim:

[28] The legal threshold for a sur place claim should not be confused with the standard of proof. In order to show a well-founded fear of persecution under section 96 of the Act, an applicant must establish that there is a “reasonable chance” or “serious possibility” of persecution (Adjei v Canada (Minister of Employment and Immigration), 1989 CanLII 5184 (FCA), [1989] 2 FC 680 (FCA) at paras 5-8; Sebastio v Canada (Minister of Citizenship and Immigration), 2016 FC 803 at paras 13-14 [Sebastio]). The standard of proof for facts on which a claimant relies is a balance of probabilities. However, once proven, the legal threshold to demonstrate persecution is only a “serious possibility”.

In Zhu,Note 184 the Trial Division held that once the evidence established that the claimant's information was given to counsel for the accused and filed in evidence at a public trial in Canada and in publicly accessible court records, it was patently unreasonable for the Board to suggest that further evidence was required to establish that the information actually came to the attention of a potential agent of persecution in the claimant's country of origin.  In the Court's view, that is too high a requirement to establish more than a mere possibility of persecution.

In Kammoun,Note 185 the claimant had voluntarily approached representatives from his country in Canada.  The Court held that the proper inquiry was whether the claimant's denouncement, albeit voluntary, of the Tunisian authorities in Canada could cause a negative reaction on the part of the authorities and, as a result, cause a risk should the claimant return.

When a considering a sur place claim, the Board is to adopt the perspective of the state against which the person claims risk.Note 186

Assessing a sur place claim is not limited to whether the authorities in the claimant's home country will find out about the claimant's activities abroad. The likelihood of authorities in the home country finding out about activities abroad may be largely determinative of the issue of prospective risk where the claim is based exclusively on, for example, political activities abroad. However, where the sur place claim relates to a condition that will continue upon return, such as religion, the risk of persecution based on this condition must be assessed regardless of whether authorities would find out about activities in Canada. Accordingly, the Board must also consider whether the claimant would continue the activities in question, for example practicing their religion, if returned to their home country.Note 187

It is an error for the Board to base its analysis of the sur place claim (based on religious persecution) on the basis of an expectation that the claimant should be discreet about their religious beliefs upon return to the country.Note 188

5.7.3. Claimant’s motivation may be relevant to risk assessment

Although there is no good faith requirement for a sur place claim, a decision-maker is entitled to consider a claimant's motivation when assessing the sincerity of the claimant's beliefs. The genuineness of the claimant's belief may be relevant to the risks that they may face upon return to their home country. In appropriate cases, the Board may find that the claimant would not likely engage in the political or religious activities in question on return to their country.Note 189

In Su,Note 190 the Court found that it was not unreasonable for the Board to have assessed and considered the claimant's motive for practicing Falun Gong as a reason for rejecting his sur place claim. While beginning to practice a religion solely to buttress a refugee claim cannot, in and of itself, be the basis for rejecting a sur place claim, the Board may legitimately have regard to such motive in assessing genuineness of a claimant's claimed religious beliefs. The Court adopted its reasons from an earlier decision in Hou:Note 191

[C]ontrary to what the applicant claims, Canadian case law does recognise that motive for engaging in a religious practice in Canada may be considered by the RPD in an appropriate case. However, a finding that a claimant was motivated to practice a religion in Canada to buttress a fraudulent refugee claim cannot be used, in and of itself, as a basis to reject the claim. Rather, the finding that the claimant has been motivated by a desire to buttress his or her refugee claim is one factor that may be considered by the RPD in assessing the sincerity of a claimant's religious beliefs.

The sincerity of those beliefs will be an issue in cases, like the present, where continuing the religious practice in the country of origin might place the claimant at risk. If the beliefs are not genuine, then there is no risk, as a claimant would not practice his or her newly-acquired religion in the country of origin if adherence to the religion is motivated solely by a desire to support a refugee claim. On the other hand, there may well be situations where a claimant might initially have been motivated to join a religion due to these types of motivations, but along the route, may have developed faith and become a true adherent of the religion.

In a series of recent cases involving claimants from China, this Court has applied the holding in Ejtehadian [v Canada (Minister of Citizenship and Immigration), 2007 FC 158] and held that the Board cannot reject a sur place claim due solely to lack of credibility or improper motive but, rather, must assess the genuineness of the applicant's religious practice to determine if he or she will be at risk if returned to the country of origin […] In Jin and Wang [v Canada (Minister of Citizenship and Immigration), 2011 FC 614] […] the Board noted the questionable motive for conversion but then went on to assess the genuineness of the applicant's conversion and found it to be lacking. The Board based its findings on the claimants' lack of credibility, the fact that they had fabricated stories about being Christians in China and their lack of knowledge of the details of the religion they claimed to practice. Because the claimants were found to not be genuine practitioners, the RPD held they would not practice their claimed religions if returned to China and thus were determined to face no risk. And this Court upheld the Board's findings in those cases. In short, in circumstances very much like the present, the RPD's decisions were upheld.

5.7.4. Credibility

Some cases have held that the Board is not required to deal with the issue of whether the claimant is a refugee sur place where it determines that the basis of the claim is not credible.Note 192 However, other cases hold that the Board should consider the sur place claim even when it does not believe the claimant's account of their experiences in the home country.Note 193

The Court has held that the Board is entitled to import its credibility findings about the claimant's experiences in their home country into its sur place analysis. In Jiang,Note 194 the Board found that the claimant had fabricated her claim to be a Falun Gong practitioner in China and that she had become a practitioner only to support her fraudulent claim and she was not a genuine practitioner. The claimant submitted that the Board erred by relying on its findings that she had fabricated her claim to be a practitioner in China to conclude that she had not become a genuine practitioner after coming to Canada. The Court rejected that argument, holding that the Board must be entitled to import its credibility findings into its assessment of a claimant's sur place claim. However, the Board must still consider the full context of what the claimant has done since coming to Canada, and it is improper to make a bald assertion that the claimant is not a genuine practitioner today just because they were not a genuine practitioner in China.Note 195  In Zheng,Note 196 the Court rejected the argument that negative credibility findings can only be imported into an assessment of a sur place claim when the findings are so serious as to put a claimant's overall credibility into question.

5.7.5. Events in the claimant’s home country

A claimant may be a refugee sur place as a consequence of events which have occurred in their country of origin since departure,Note 197 or because of a significant intensification of pre-existing factors since departure from their country.Note 198

In a sur place claim based on the insecurity in the country of reference (in this caseNote 199 it was the major upheaval that occurred in Tunisia after the claimants left their country), the Court agreed with the RPD that there was no connection between that situation and the claim for refugee protection and that the claimants were affected to the same degree as all the citizens of their country.

A claimant may become a refugee sur place by virtue of the actions of Canadian authorities in that person's home country.Note 200

In a sur place claim, while it is correct to inquire into the police response to a potential request for state protection, it is an error to require the claimant to have already pursued state protection.Note 201

Exit Laws

Claimants sometimes claim that they will face a risk of persecution because they exited their home country illegally or overstayed the period authorized by an exit visa. Please see Chapter 9 for a discussion of this topic. ​

Notes

Note 1

Immigration and Refugee Protection Act, S.C. 2001, c. 27, section 96.

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Note 2

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85 , at 723.

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Note 3

Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984.  Reported: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), at 134.

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Note 4

In Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, at 664 (para 134), Major, J. stated: “The objective component of the test requires an examination of the ‘objective situation’ and the relevant factors include the conditions in the applicant’s country of origin and the laws in that country together with the manner in which they are applied.”

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Note 5

United Nations High Commissioner for Refugees Handbook on Procedures for Determining Refugee Status (reissued February 2019) (“UNHCR Handbook”), para 37.

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Note 6

UNHCR Handbook, para 38.

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Note 7

Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.) at 404.

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Note 8

M.E.I. v. Paszkowska, Malgorzata (F.C.A., no. A-724-90), Hugessen, MacGuigan, Décary, April 16, 1991. Reported: Canada (Minister of Employment and Immigration) v. Paszkowska (1991), 13 Imm. L.R. (2d) 262 (F.C.A .).

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Note 9

Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.), at 258.

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Note 10

Fernandopulle, Eomal v. M.C.I. (F.C., no. IMM-3069-03), Campbell, March 18, 2004, 2004 FC 415  at para 10. In this case, Mr. Justice Campbell rejected the argument that there is a rebuttable presumption under Canadian law that a person who has been the victim of persecution in the past has a well-founded fear of persecution. The ruling was confirmed by the Federal Court of Appeal in Fernandopulle, Eomal v. M.C.I. (F.C.A., no. A-217-04), Sharlow, Nadon, Malone, March 8, 2005, 2005 FCA 91.

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Note 11

M.E.I. v. Satiacum, Robert (F.C.A., no. A-554-87), Urie, Mahoney, MacGuigan, June 16, 1989. Reported: Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.).

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Note 12

Natynczyk v. Canada (Minister of Employment and Immigration), (F.C., no. IMM-2025-03), O’Keefe, June 25, 2004  at para 71.

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Note 13

Lai, Kai Ming v. M.E.I. (F.C.A., no. A-792-88), Marceau, Stone, Desjardins, September 18, 1989. Reported: Lai v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.).

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Note 14

Awadh, Ahmed v. M.C.I. (F.C., no. IMM-4221-13), Noël, May 29, 2014; 2014 FC 521.

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Note 15

Kamana, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999

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Note 16

Tabet-Zatla, Mohamed v. M.C.I. (F.C.T.D., no. IMM-6291-98), Tremblay-Lamer, November 2, 1999.

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Note 17

Tabet-Zatla, ibid., was followed in Fernando v. M.C.I. (F.C.T.D., no. IMM-4601-00), Nadon, July 5, 2001 and Anandasivam, Vallipuram v. M.C.I. (F.C.T.D., no. IMM-4748-00), Lemieux, October 10, 2001. Similarly, the same principle was applied in Akacha, Kamel v. M.C.I. (F.C., no. IMM-548-03), Pinard, December 19, 2003; 2003 FC 1489 at para 5; and Herrera, William Alexander Cruz v. M.C.I. (F.C., IMM-782-07), Beaudry, October 1, 2007 at para 23, which followed Kamana.

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Note 18

Maqdassy, Joyce Ruth v. M.C.I. (F.C.T.D., no. IMM-2992-00), Tremblay-Lamer, February 19, 2002; 2002 FCT 182.

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Note 19

Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.), at 632.

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Note 20

Maqdassy, supra, note 18.

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Note 21

Canada (Attorney General) v. Ward, supra, note 2.

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Note 22

See Ramos Contreras, Manuel v. M.C.I. (F.C., no. IMM-4188-08), Heneghan, May 20, 2009; 2009 FC 525, where the Court noted that documentary evidence cannot, by itself, establish the subjective element of persecution. In Mailvakanam, Subhas v. M.C.I. (F.C., no. IMM-3155-11), Scott, December 6, 2011; 2011 FC 1422, the Court confirmed that the RPD has no obligation to conduct an assessment of objective risk after concluding that a claimant lacks subjective fear.

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Note 23

Kanvanthipillai v. Canada (M.C.I.), 2002 FCT 881 (FCTD) at para 22.

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Note 24

Geron, Fernando Bilog v. M.C.I. (F.C.T.D., no. IMM-4951-01), Blanchard, November 22, 2002; 2002 FCT 1204.

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Note 25

Nazir, Qaiser Mahmood v. M.C.I. (F.C., no. IMM-3857-04), Harrington, February 3, 2005; 2005 FC 168 at para 4.

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Note 26

Chan v. Canada (Minister of Employment and Immigration), 1995 CanLII 71 (SCC), [1995] 3 SCR 593 at para 128.

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Note 27

Yusuf, supra, note 19.

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Note 28

Canada (Minister of Citizenship and Immigration) v. Patel, Dhruv Navichandra (F.C., no. IMM-2482-07), Lagacé, June 17, 2008; 2008 FC 747.

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Note 29

In Sandoval Mares, Martha v. M.C.I. (F.C., no. IMM-2716-12), Gagné, March 25, 2013; 2013 FC 297, the Court noted that with regard to the children’s claim, the RPD could reasonably rely on the testimony of the principal applicant acting as the children’s designated representative in assessing their subjective fear. No risks were raised as being faced by the minor applicants separate from those faced by their mother. In Mella v. Canada (PSEP), 2019 FC 1587, the Court commented that the subjective fear advanced by the minor claimants’ father would simply have been imputed to them, and referred to the UNHCR Handbook, which explains: “If there is reason to believe that the parents wish their child to be outside of the country of origin on grounds of well-founded fear of persecution, the child himself may be presumed to have such fear.”

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Note 30

Owobowale, Lillian Naomi v. M.C.I. (F.C., no. IMM-2025-10), Zinn, November 16, 2010; 2010 FC 1150 was a case involving a mother and her three minor daughters whose claims were based on the minors’ fear of female genital mutilation at the hands of family members. The Board erred in unreasonably approaching the minors’ claims from the perspective of the mother. The life choices of the mother are not relevant in assessing the subjective fear of her children. The RPD also erred in not assessing the objective basis from the perspective of the minor applicants.

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Note 31

Shanmugarajah, Appiah v. M.E.I. (F.C.A., no. A-609-91), Stone, MacGuigan, Henry, June 22, 1992. This principle has been applied in many cases since. See for example Ramirez-Osorio, Alexander v. M.C.I. (F.C., no. IMM-7418-12), Shore, May 3, 2013; 2013 FC 461.

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Note 32

Parada, Felix Balmore v. M.C.I. (F.C.T.D., no. A-938-92), Cullen, March 6, 1995 at para 16.

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Note 33

Assadi, Nasser Eddin v. M.C.I. (F.C.T.D., no. IMM-2683-96), Teitelbaum, March 25, 1997  at para 14.

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Note 34

Parmar, Satnam Singh v. M.C.I. (F.C.T.D., no. IMM-838-97), Joyal, January 21, 1998; Chudinov, Nickolai v. M.C.I. (F.C.T.D., no. IMM-2419-97), Joyal, August 14, 1998; and Maximilok, Yuri v. M.C.I.  (F.C.T.D., no. IMM-1861-97), Joyal, August 14, 1998.

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Note 35

Dirie, Abdulle Milgo v. M.C.I. (F.C.T.D., no. IMM-5428-97), Cullen, October 6, 1998.

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Note 36

Hatami, Arezo v. M.C.I. (F.C.T.D., no. IMM-2418-98), Lemieux, March 23, 2000  at para 25.

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Note 37

Herrera, supra, note 17 at para 23.

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Note 38

Ahoua, Wadjams Jean-Marie v. M.C.I. (F.C., no. IMM-1757-07), Blais, November 27, 2007; 2007 FC 1239  at para 16.

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Note 39

Hidalgo Tranquino, Claudia Isabel v. M.C.I. (F.C., no. IMM-86-10), Mactavish, July 29, 2010; 2010 FC 793  at para 8.

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Note 40

Gomez v. Canada (Minister of Citizenship and Immigration) (F.C., IMM-1412-10), Bédard, October 22, 2010  at para 34.

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Note 41

Kunin, Aleksandr v. M.C.I. (F.C., no. IMM-5225-09), O’Keefe, November 4, 2010; 2010 FC 1091  at para 20. Also see Louis, Benito v. M.C.I. (F.C. no. IMM-3068-18), Bell, March 28, 2019; 2019 FC 355 where the Court rejected the argument that the RPD erred by importing a subjective fear component into its section 97 analysis. The Court noted that the RPD never used the term “subjective fear” and “although the RPD’s analysis is similar to that which would be employed by a panel considering a Convention refugee’s claim of subjective fear, it used this information in its assessment of Mr. Louis’ credibility...”

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Note 42

See M.C.I. v. Sellan, Theyaseelan (F.C.A. no. A-116-08), Desjardins, Nadon, Blais, December 2, 2008; 2008 FCA 381, where the Court, in answering a certified question, stated: “… where the Board makes a general finding that the claimant lacks credibility, that determination is sufficient to dispose of the claim unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim. “

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Note 43

Aslam, Muhammad v. M.C.I. (F.C., no. IMM-3264-05), Shore, February 16, 2006; 2006 FC 189  at para 28.

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Note 44

Wong, Siu Ying v. M.E.I. (F.C.A., no. A-804-90), Heald, Marceau, Linden, April 8, 1992. Reported: Wong v. Canada (Minister of Employment and Immigration) (1992), 141 N.R. 236 (F.C.A.) at para 5.

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Note 45

Castillejos, Jaoquin Torres v. M.C.I. (F.C.T.D., no. IMM-1950-94), Cullen, December 20, 1994  at para 11 and Akram, Ejaz v. M.C.I. (F.C., no. IMM-3106-03), Pinard, July 2, 2004; 2004 FC 927  at para 5.

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Note 46

In Bibby-Jacobs, Shannon Shenika v. M.C.I. (F.C., no. IMM-2508-12), Martineau, October 9, 2012; 2012 FC 1176, the Court cautions against the misuse of the concept of subjective fear in sexual harassment cases. The claimant was a young woman who had been victimized by a sexual predator, a prominent businessman and her employer. The RPD concluded that she did not have a subjective fear stating that “if the risk were of a level of severity that could be described as persecution, the claimant would have left her job.” The Court noted that this particular use of the concept of subjective fear by the RPD is hardly applicable in a sexual harassment case.

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Note 47

Hue, Marcel Simon Chang Tak v. M.E.I. (F.C.A., no. A-196-87), Marceau, Teitelbaum, Walsh, March 8, 1988; Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988 and Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugessen, Desjardins, Létourneau, March 17, 1993. Reported: Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). In Andrade Ramos, Norberto v. M.C.I. (F.C. no., IMM-1867-10), Russell, January 10, 2011; 2011 FC 15 at para 28, the Court reiterated this principle as follows: “[…] the RPD's conclusion that the Applicants' failure to claim asylum at the earliest opportunity (that is, in the U.S.) indicates their lack of subjective fear is contrary to Federal Court of Appeal jurisprudence, which says that a board may consider this factor in assessing subjective fear, provided it is not the only evidence upon which the board relies. See Hue […]”

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Note 48

Huerta, ibid. atpara 227.

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Note 49

Cruz v. Canada (Minister of Employment and Immigration) (F.C.T.D., no. IMM-3848-93) Simpson, June 16, 1994  at para 10.

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Note 50

Renee v. Canada (Citizenship and Immigration), 2020 FC 409. See also Sun v. Canada (Citizenship and Immigration), 2019 FC 856, in which the Court stated that “delay in seeking refugee protection when one is able to do so can be probative of the credibility of the claimant's assertion that he or she fears persecution in the country of reference. When a claimant has not sought refugee protection at the first reasonable opportunity, the decision-maker must consider why not when assessing the significance of this fact.”

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Note 51

Castillejos, supra, note 45, where the Court stated, at para 11, that delay points to a lack of subjective fear and does not relate to the objective basis of the claim.

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Note 52

Velez, Liliana v. M.C.I. (F.C., no. IMM-5660-09), Crampton, September 15, 2010; 2010 FC 923  at para 28. The converse of the same principle was expressed in Abawaji, Abdulwahid Haji Hassen v. M.C.I. (F.C., no. IMM-6276-05), Mosley, September 6, 2006; 2006 FC 1065; at para 16:“Delay in making a claim for refugee protection should not be fatal to the claim where it is supported by a reasonable explanation.”

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Note 53

Zhuang v. Canada (Citizenship and Immigration), 2019 FC 263.

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Note 54

For example, in Mubengaie Malaba, Gea v.M.C.I. (F.C., no. IMM-3814-12), Martineau, January 28, 2013; 2013 FC 84  at para 25, the Court noted that “a distinction must be made between a behaviour that is inconsistent with a well-founded fear of persecution (which may be presumed from a lengthy delay in making a claim) and whether the applicant's account of persecution is credible or not.”

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Note 55

Beltran, Luis Fernando Berrio v. M.C.I. (F.C.T.D., no. IMM-829-96), Dubé, October 29, 1996.

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Note 56

Martinez Requena, Ericka Marlene v. M.C.I. (F.C., no. IMM-4725-06), Dawson, September 27, 2007; 2007 FC 968.

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Note 57

In Salguero, Erbin Salomon Rosales v. M.C.I. (F.C., no. IMM-4402-04), Mactavish, May 18, 2005; 2005 FC 716, the Court distinguishes the claimants' 16 year residence in the U.S. from the “short stays” en route to Canada referred to in para 37 of Mendez, Alberto Luis Calderon v. (F.C., no. IMM-1837-04), Teitelbaum, January 27, 2005; 2005 FC 75.

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Note 58

Claimants often spend short periods of time in transit through countries where they do not seek protection. For example, in Packinathan, Lindan Lorance v. M.C.I. (F.C., no. IMM-6640-09), Snider, August 23, 2010; 2010 FC 834, the Board considered that the claimant's failure to make a claim during a two-hour stop-over in Switzerland indicated a lack of subjective fear. The Board's conclusion was held to be unreasonable, as the claimant was at all times in transit to Canada.

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Note 59

John, Shontel Dion v. M.C.I. (F.C., no. IMM-1683-10), Bédard, December 14, 2010; 2010 FC 1283 at para 23.

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Note 60

El-Naem, Faisal v. M.C.I. (F.C.T.D., no. IMM-1723-96), Gibson, February 17, 1997. Reported: El-Naem v. Canada (Minister of Citizenship and Immigration) (1997), 37 Imm. L.R. (2d) 304 (F.C.T.D.).

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Note 61

Ribeiro, Wender Magno v. M.C.I. (F.C., no. IMM-8843-04), Dawson, October 11, 2005; 2005 FC 1363 at para 11.

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Note 62

Chen v. Canada (Citizenship and Immigration), 2019 FC 334.

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Note 63

Diluna, Roselene Edyr Soares v. M.E.I. (F.C.T.D., no. IMM-3201-94), Gibson, March 14, 1995. Reported: Diluna v. Canada (Minister of Employment and Immigration) (1995), 29 Imm. L.R. (2d) 156 (F.C.T.D.), at 162.

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Note 64

Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003; 2003 FC 1324  at para 19.

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Note 65

Sabapathy, Thevi v. M.C.I. (F.C.T.D., no. IMM-1507-96), Campbell, March 27, 1997.

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Note 66

Chen v. Canada (Citizenship and Immigration), 2019 FC 334 at para 24. See also Kayode v. Canada (Citizenship and Immigration), 2019 FC 495; and Guecha Rincon v. Canada (Citizenship and Immigration), 2020 FC 173.

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Note 67

Zeah v. Canada (Citizenship and Immigration), 2020 FC 711 at paras 61-62.

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Note 68

Aslam, Muhammad v. M.C.I. (F.C., no. IMM-3264-05), Shore, February 16, 2006; 2006 FC 189 at para 28.

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Note 69

It is not unusual for claimants to engage in more than one kind of conduct that may be seen to undermine their subjective fear. For example, in Rivera, Jesus Vargas v. M.C.I. (F.C., no. IMM-5826-02), Beaudry, November 5, 2003; 2003 FC 1292, the claimant went back to work for eight months for the same employer who had had him beaten; secondly, after he left Mexico for the U.S., he made no claim during the year he lived there; and finally, he returned to his country to take a flight to Canada.

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Note 70

Rahim, Ziany v. M.C.I. (F.C., no. IMM-2729-04), Shore, January 18, 2005, 2005 FC 18 at para 11.

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Note 71

Zuniga, Alexis Ramon Garcia v. S.C.C. (F.C.T.D., no. IMM-118-94), Teitelbaum, July 4, 1994 at paras 49 -50. See also Singh, Sebastian Swatandra v. M.C.I. (F.C.T.D., no. IMM-3840-97), Nadon, December 7, 1998 where the Court upheld the negative finding of the CRDD based on the view that the male claimant had not made a serious attempt to leave Fiji between 1987 and 1995, conduct which undermined his subjective fear of persecution.

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Note 72

As noted in Bibby-Jacobs, supra, note 46,it was not appropriate for the RPD to expect that “if the risk were of a level of severity that could be described as persecution, the claimant [a young woman subject to sexual harassment at the hands of her powerful employer] would have left her job.” In the same vein is the case of a claimant who was subject to domestic abuse but had returned to her husband after several earlier trips to Canada. See Abdi Ahmed, Ilham v. M.C.I. (F.C., no. IMM-3178-12), O’Reilly, December 18, 2012; 2012 FC 1494, where the Court found that the RPD failed to take into account the claimant’s personal circumstances and apply the IRB’s Guidelines on Women Refugee Claimants Fearing Gender Related Persecution (Guideline 4) when evaluating her testimony regarding why she stayed with and returned to her husband.

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Note 73

Gebremichael, Addis v. M.C.I. (F.C., no. IMM-2670-05), Russell, May 1, 2006; 2006 FC 547  at para 44.

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Note 74

Voyvodov, Bogdan Atanassov v. M.C.I. (F.C.T.D., no. IMM-5601-98), Lutfy, September 13, 1999  at para 10.

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Note 75

Shah, Mahmood Ali v. M.C.I. (F.C., no. IMM-4425-02), Blanchard, September 30, 2003; 2003 FC 1121  at para 23.

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Note 76

Ibrahimov, Fikrat v. M.C.I. (F.C., no. IMM-4258-02), Heneghan, October 10, 2003; 2003 FC 1185.  at para 19. This reasoning was more recently followed in Ramirez Rodas, Carlos v. M.C.I. (F.C., no. IMM-6560-13), Zinn, February 27, 2015; 2015 FC 250  at para 31. A number of incidents over a period of a few months culminated in an event which convinced the claimants they had to leave.

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Note 77

Molano Fonnoll, German Guillermo v. M.C.I. (F.C., no. IMM-2626-11), Scott, December 12, 2011; 2011 FC 1461.

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Note 78

Menjivar, Carlos Othmar Navarrete v. M.C.I. (F.C., no. IMM-9660-04), Dawson, January 6, 2006; 2006 FC 11 at para 33. For more recent cases supporting this principle see Rodrigues, Gustavo Adolfo v. M.C.I. (F.C., no. IMM-2214-11), Pinard, January 6, 2011; 2012 FC 4, and Ghotra, Balkar Singh v. M.C.I. (C.F., No. IMM-5472-15), Bell, October 19, 2016; 2016 CF 1161.

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Note 79

In Mendez, supra, note 57 at paras 34 -38, Justice Teitelbaum held that the Board had erred in law when it wrote that the case law was clear that persons claiming to fear persecution were required to claim in the first Convention country in which they arrived. The Court also found that the Board has not fulfilled its requirement to carefully consider the claimant's testimony.

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Note 80

For example, in Enongene, Joseph Asue v. M.C.I. (F.C. no. IMM-106-18), Favel, September 24, 2018; 2018 FC 927 at para 16 the Court quashed a decision because the RPD had disregarded the claimant's explanation for delaying six months to claim asylum in the United States. His explanation was that he was following the advice of people by trying to gather documents before making the claim. Similarly, in Yasun, Guler v. M.C.I. (F.C. no. IMM-3669-18), Grammond, March 20, 2019; 2019 FC 342, the Court criticized the negative inference drawn from the claimant's failure to claim while in the United States for two months. Her explanation was a member of her family was in Canada. Similarly, in Gbemudu, Richard Obiajulu v. M.C.I. (F.C. no. IMM-4320-17), Russell, April 26, 2018; 2018 FC 451 the Court quashed a decision in which the RAD had drew a negative inference due to the claimant's failure to claim protection while living in the U.K.. The Court noted that the claimant feared persecution due to engaging in same-sex relationships in the past and then being unexpectedly outed after arriving in Canada. The RAD's analysis was based on speculation that any bisexual person from Nigeria would claim protection at the first opportunity irrespective of whether they have been outed. In Riche v. Canada (Citizenship and Immigration), 2019 FC 1097, the Board found that the applicant's explanation for failing to claim asylum in the United States was unsatisfactory. The Court noted that all facts and explanations provided to justify any delay must be taken into consideration and the Board's brief reasons did not allow the Court to determine whether the Board had done so.

Return to note 80 referrer

Note 81

Salomon, Jonathan Castro v. M.C.I. (F.C., no. IMM-1120-17), Locke, October 6, 2017; 2017 FC 888.

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Note 82

Pulido Ruiz, Cristian Danilo v. M.C.I. (F.C., no. IMM-2819-11), Scott, February 24, 2012; 2012 FC 258. See also Manege, Pierrette v. M.C.I. (F.C., no. IMM-4966-13), Kane, April 17, 2014; 2014 FC 374, where the RPD had found that the applicants' failure to seek asylum in Kenya and Germany, while in transit to Canada, demonstrated a lack of subjective fear. The Court held that this finding was not reasonable based on the applicants' circumstances and youth. The RPD unreasonably expected the applicants to appreciate that their failure to seek asylum in the very first country they landed would jeopardize their claim and undermine their subjective fear of persecution.

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Note 83

In Ilie, Lucian Ioan v. M.C.I. (F.C.T.D., no. IMM-462-94), MacKay, November 22, 1994 the Court stated that the CRDD was entitled to take notice of the status of countries that are signatories to the Convention and may also assume that such countries will meet their obligation to implement the Convention within their own territory, unless evidence to the contrary is adduced. But in Tung, Zhang Shu v. M.E.I. (F.C.A., no. A-220-90), Heald, Stone, Linden, March 21, 1991, where the claimant visited four countries en route to Canada, the Court pointed to the lack of evidence that any of the countries in question had ratified the Convention or Protocol. Although the Board was authorized to take notice of any facts that could be judicially noticed, the Board was wrong to “speculate” that refugee protection was available in those countries.

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Note 84

Memarpour, Mahdi v. M.C.I. (F.C.T.D., no. IMM-3113-94), Simpson, May 25, 1995  at paras 23-24.

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Note 85

Clervoix v. Canada (Citizenship and Immigration), 2020 FC 1152 at para 30.

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Note 86

Mendez, supra, note 57 at para 37. In Nel, Charl Willem v. M.C.I. (F.C., no. IMM-4601-13), O'Keefe, September 4, 2014; 2014 FC 842, the claimants spent approximately 7 hours in an airport in the UK while waiting for a flight to Canada. The Court found that the RPD erred in finding a lack of subjective fear based on their short layover. The Court noted that it is unsurprising that someone who actually fears persecution would want to go to a country where their claim has the best chance of success, since the price of failure is a return to the persecution they fear.

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Note 87

Packinathan, supra, note 58 at para 7.

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Note 88

In Alekozai, Rafi v. M.C.I. (F.C., no. IMM-8260-13), Rennie, February 6, 2015; 2015 FC 158, the Court noted that reunification with family is a valid reason for not claiming refugee protection at the first opportunity. However, in Gebetas, Ergun v. M.C.I. (F.C., no. IMM-11313-12), Shore, December 10, 2013; 2013 FC 1241, the Court held that the mere fact that an applicant has one relative in Canada is not a sufficient basis to overcome the fact that he or she did not claim refugee status in the United States as quickly as possible. And in Ndambi, Guy v. M.C.I. (F.C., no. IMM-12682-12), Roy, January 31, 2014; 2014 FC 117, the Court held that there was ample evidence for the RPD to conclude that the applicant had no subjective fear. The applicant chose to leave more than two weeks after his visas for the United States and Belgium were issued, and he did not claim asylum when he arrived in the United States. His choice to come to Canada because his nephew is here was more of a conscious choice made for immigration purposes than a decision to seek refuge wherever possible. However, in Demirtas v. Canada (Citizenship and Immigration), 2020 FC 302, the applicant claimed that he did not make a refugee claim in Europe or in the United States because he was seeking reunification with family members in Canada. His brother-in-law was already established in Canada and could assist the applicant. The Court, citing Alekozai v. Canada (MCI), 2015 FC 158, held that the RAD erred by dismissing the applicant's explanation.

Return to note 88 referrer

Note 89

Perez, Franklin Antonio v. M.C. I. (F.C., no. IMM-4450-09), Boivin, March 30, 2010; 2010 FC 345 at para 19.

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Note 90

Idahosa, Musili Amoke v. M.C.I. (F.C. no. IMM-1124-18), Favel, March 29, 2019; 2019 FC 384 at para 31.

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Note 91

Bello, Salihou v. M.C.I. (F.C.T.D., no. IMM-1771-96), Pinard, April 11, 1997.

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Note 92

Kayode v. Canada (Citizenship and Immigration), 2019 FC 495. Similarly, in Oria-Arebun v. Canada (Citizenship and Immigration), 2019 FC 1457, the Court held that it was reasonable to expect a lawyer with high levels of education to make inquiries about options open to her.

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Note 93

Madoui, Nidhal Abderrah v. M.C.I. (F.C.T.D., no. IMM-660-96), Denault, October 25, 1996.

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Note 94

In Milian Pelaez, Rogelio v. M.C.I. (F.C., no. IMM-3611-11), de Montigny, March 2, 2012; 2012 FC 285, the Court held (at para 14) that the RPD had wrongly held against the claimant his failure to claim asylum in the US without considering his explanation that his intention at the time was simply to temporarily flee Guatemala in order to be forgotten or his explanation that, unlike Canada, the United States refuses claims based on risk related to criminality “as was the case in Canada before section 97 was introduced in the Act”.

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Note 95

Mekideche, Anouar v. M.C.I. (F.C.T.D., no. IMM-2269-96), Wetston, December 9, 1996.

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Note 96

Ilyas, Muhammad v. M.C.I. (F.C., no. IMM-5636-03), Russell, September 16, 2004; 2004 FC 1270.

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Note 97

El-Naem, supra, note 60.

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Note 98

Liblizadeh, Hassan v. M.C.I. (F.C.T.D., no. IMM-5062-97), MacKay, July 8, 1998.

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Note 99

Pepaj v. Canada (Citizenship and Immigration), 2014 FC 938.

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Note 100

Yoganathan, Kandasamy v. M.C.I. (F.C.T.D., no. IMM-3588-97), Gibson, April 20, 1998 at para 8.

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Note 101

Hue, supra, note 47.

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Note 102

Shahpari, Khadijeh v. M.C.I. (F.C.T.D., no. IMM-2327-97), Rothstein, April 3, 1998  at para 14.

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Note 103

Geron, supra, note 24.

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Note 104

Bains, Gurmukh Singh v. M.C.I. (F.C.T.D., no. IMM-3698-98), Blais, April 21, 1999.

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Note 105

Singh, Pritam v. M.C.I. (F.C., no. IMM-2513-06), Shore, January 25, 2007; 2007 FC 62  at para 24.

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Note 106

Gabeyehu, Bruck v. M.C.I. (F.C.T.D., no. IMM-863-95), Reed, November 8, 1995  at para 7.

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Note 107

Tang, Xiaoming v. M.C.I. (F.C.T.D., no. IMM-3650-99), Reed, June 21, 2000  at para 6 : “His claim is a sur place claim and, therefore, the date as of which he became aware that he would allegedly face persecution on return to China is the relevant date, not the date on which he arrived in Canada.”

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Note 108

Gyawali, Nirmal v. M.C.I. (F.C., no. IMM-926-03), Tremblay-Lamer, September 24, 2003; 2003 FC 1122.

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Note 109

Hue, supra, note 47.

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Note 110

Ahmad, Mahmood v. M.C.I. (F.C.T.D., no. IMM-1012-01), Tremblay-Lamer, February 14, 2002; 2002 FCT 171.

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Note 111

Niyonkuru, Joseph v. M.C.I. (F.C., no. IMM-4230-04), De Montigny, February 4, 2005, 2005 FC 174; Correira, Osvaldo De Matos v. M.C.I. (F.C., no. IMM-8077-04), O'Keefe, August 3, 2005, 2005 FC 1060 and Singh, supra, note 105.

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Note 112

Nijjer, Yadhwinder Singh v. M.C.I. (F.C., no. IMM-340-09), de Montigny, December 9, 2009; 2009 FC 1259  at para 24. In Peti, Qamile, v. M.C.I. (F.C., no. IMM-1764-11), Scott, January 19, 2012; 2012 FC 82, the claimant, who was found to be not credible by the RPD, had a valid visa and waited six months before filing her claim. The Court found the Minister's contention that “possession of a visa does not rebut the presumption that a true refugee would claim protection at the first opportunity” to be a sound argument. In Ndoungo v. Canada (Citizenship and Immigration), 2019 FC 541, the Court held that being on “vacation” and having legal status in Canada does not explain a delay in making a claim for refugee protection where the events giving rise to the claimant's fear occurred before her arrival in Canada.

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Note 113

Williams, Debby v. S.S.C. (F.C.T.D., no. IMM-4244-94), Reed, June 30, 1995. See also A.G.I. v. M.C.I. (F.C.T.D., no. IMM-5771-01), Kelen, December 11, 2002; 2002 FCT 1287, where the claimant made the refugee claim only after her visitor status in Canada had lapsed and immigration authorities advised her that she could base a refugee claim on her fear of persecution by her husband.

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Note 114

Ashraf, Shahenaz v. M.C.I. (F.C., no. IMM-5375-08), O'Reilly, April 19, 2010; 2010 FC 425.

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Note 115

Lameen, Ibrahim v. S.S.C. (F.C.T.D., no. A-1626-92), Cullen, June 7, 1994.

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Note 116

Singh, Nirmal v. M.C.I. (F.C., no. IMM-7334-05), Teitelbaum, June 13, 2006, 2006 FC 743. In Ismayilov, Anar v. M.C.I. (F.C., no. IMM-7263-14), Mactavish, August 26, 2015; 2015 FC 1013, the claimant had explained to the RPD that he had delayed claiming because his lawyer had advised him to wait until his wife and child arrived in Canada so that they could make their claims as a family. The Court noted that the RPD had an obligation to consider this evidence before it could conclude that the delay in claiming indicated a lack of subjective fear.

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Note 117

Harry v. Canada (Citizenship and Immigration), 2019 FC 85.

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Note 118

Asri v. Canada (Citizenship and Immigration), 2020 FC 303.

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Note 119

See IRPA, section 108(1)(a).

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Note 120

See Chapter 12.

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Note 121

Kabengele v. M.C.I. (F.C. no., IMM-1422-99), Rouleau, November 16, 2000  at para 41.

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Note 122

Ortiz Garcia v. Canada (Citizenship and Immigration), 2011 FC 1346. See also: Abechkhrishvilli v. Canada (Citizenship and Immigration),2019 FC 313 at para 20; Obuzuwa v. Canada (Citizenship and Immigration), 2019 FC 1007 at para 25; and Nuriddinova v. Canada (Citizenship and Immigration), 2019 FC 1093.

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Note 123

Kostrzewa v. Canada (Citizenship and Immigration), 2012 FC 1449.

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Note 124

Martinez Requena, supra, note 56 at para 7. In Milian Pelaez, Rogelio v. M.C.I. (F.C., no. IMM-3611-11), de Montigny, March 2, 2012; 2012 FC 285, the Court noted that the RPD held against the applicant his return to Guatemala, the place where the people he feared could be found, without considering that he had apparently relocated 100 km away from the place where he had had problems and had changed his profession. In Ascencio Gutierrez, Arnoldo Maximilanov. M.C.I. (F.C., no. IMM-4903-13), O'Keefe, March 3, 2015; 2015 FC 266, the Court disagreed with the RPD's finding that two one-month returns to Mexico City (not to the claimant's home state) to renew his student visa amounted to re-availment. In Yuan, Xin v. M.C.I. (F.C., no. IMM-5365-14), Boswell, July 28, 2015; 2015 FC 923, the RPD allowed the Minister's application for cessation because the refugee had returned to his country of origin for one month. The Court found the decision to be unreasonable because the refugee had returned to arrange his mother's funeral and during his stay had remained in hiding and had avoided the actual funeral out of fear that his persecutors (the Chinese PSB) would find him there.

Return to note 124 referrer

Note 125

Sanchez Hernandez v. Canada (Citizenship and Immigration), 2012 FC 197.

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Note 126

Kanji, Mumtaz Badurali v. M.C.I. (F.C.T.D., no. IMM-2451-96), Campbell, April 4, 1997.

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Note 127

Caballero, Fausto Ramon Reyes v. M.E.I. (F.C.A., no. A-266-91), Marceau (dissenting), Desjardins, Létourneau, May 13, 1993. In Duarte, Augustina Castelanos v. M.C.I. (F.C.T.D., no. IMM-6616-02), Kelen, August 21, 2003; 2003 FCT 988  the Board and the Court took a similar view of the claimant's return to Cuba to transfer ownership of her house to prevent the government from confiscating it.

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Note 128

Best v. Canada (Citizenship and Immigration), 2014 FC 214.

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Note 129

Khakimov v. Canada (Immigration, Refugees and Citizenship), 2017 FC 18.

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Note 130

Araya, Carolina Isabel Valenzuela v. M.C.I. (F.C.T.D., no. IMM-3948-97), Gibson, September 4, 1998.

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Note 131

Prapaharan, Sittampalam v. M.C.I, (F.C. no. IMM-3667-00), McKeown, March 30, 2001; 2001 FCT 272 at para 17.

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Note 132

Gopalapillai, Thinesrupan v. M.C.I. (F.C. no. IMM-3539-18), Grammond, February 26, 2019; 2019 FC 228 at paras 17-19.

Return to note 132 referrer

Note 133

Ali v. Canada (Citizenship and Immigration), 2019 FC 859.

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Note 134

Kurtkapan, Osman v. M.C.I. (F.C.T.D., no. IMM-5290-01), Heneghan, October 25, 2002; 2002 FCT 1114, at para. 31.

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Note 135

In Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.), at 304, the Court pointed out that the Immigration Appeal Board had ignored the fact that the claimant was able to obtain his passport (and exit papers) through his brother's contacts with the government.

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Note 136

Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592 (C.A.), at 611. Though the Court acknowledged that applying for immigrant visas might possibly be relevant to deciding whether a person really had a fear of persecution, it remarked that a desire to emigrate and a fear of persecution could hardly be considered mutually exclusive.

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Note 137

Vaitialingam v. M.C.I. (F.C., no. IMM-9445-03), O'Keefe, October 20, 2004, 2004 FCT 1459  at para 27.

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Note 138

Chandrakumar v. M.E.I. (F.C.T.D., no. A-1649-92), Pinard, May 16, 1997  at para 6.

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Note 139

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 723. In Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, at 664 (para 134), Major, J. stated: “The objective component of the test requires an examination of the ‘objective situation’ and the relevant factors include the conditions in the applicant’s country of origin and the laws in that country together with the manner in which they are applied.”

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Note 140

M.E.I. v. Paszkowska, Malgorzata (F.C.A., no. A-724-90), Hugessen, MacGuigan, Décary, April 16, 1991. Reported:  Canada (Minister of Employment and Immigration) v. Paszkowska (1991), 13 Imm. L.R. (2d) 262 (F.C.A.).

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Note 141

Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.)

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Note 142

Alam v. Canada (Minister of Citizenship and Immigration), 2005 FC 4.

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Note 143

Nageem v. Canada (Citizenship and Immigration), 2012 FC 867.

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Note 144

Chichmanov, Yordan Anguelov v. M.E.I. (F.C.A., no. A-243-91), Isaac, Heald, Létourneau, September 3, 1992.

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Note 145

Petrescu, Mihai v. S.G.C. (F.C.T.D., no. A-980-92), Tremblay-Lamer, October 26, 1993 at para 20.

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Note 146

Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.), at 682. Adjei, supra, note 141 at 682. See also: Seifu, Eshetu v. M.E.I. (F.C.A., File No. A-277-82) Pratte, Le Dain, Hyde, January 12, 1983. For a case where the Court does an in-depth analysis of the RPD’s language and finds that it incorrectly required the claimant to prove persecution on a balance of probabilities, see Ramanathy, Murugesakumar v. M.C.I. (F.C., no. IMM-1241-13), Mosley, May 27, 2014; 2014 FC 511.

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Note 147

Seifu, Eshetu v. M.E.I. (F.C.A., no. A-277-82), Pratte, Le Dain, Hyde, January 12, 1983.

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Note 148

Adjei., supra, footnote 10 at 683.note 141 at 683.

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Note 149

Li, Yi Mei v. M.C.I. (F.C.A., no. A-31-04), Rothstein, Noël, Malone, January 5, 2005; 2005 FCA 1.

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Note 150

Adjei, supra, footnote 10note 141at 682-3.

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Note 151

Yeboah, Christian v. M.E.I. (F.C.T.D., no. 92-A-7049), Teitelbaum, July 16, 1993 at para. 53.  Reported: Yeboah v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 81 (F.C.T.D.).  The Court in Li, supra, footnotenote 131,49, considered that the word "would" implies a probability test.

Return to note 151 referrer

Note 152

Thanapalasingam, Kengeswaran v. M.C.I. (F.C., no. IMM-10063-12), Phelan, July 29, 2013; 2013 FC 830, at para. 19.

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Note 153

Ponniah, Manoharan v. M.E.I. (F.C.A., no. A-345-89), Heald, Hugessen, Desjardins, May 16, 1991.  Reported: Ponniah v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 241 (F.C.A.), at 245.

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Note 154

Ioda, Routa v. M.E.I. (F.C.T.D., no. 92-A-6604), Dubé, June 18, 1993.  Reported: Ioda v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 294 (F.C.T.D.).

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Note 155

Rajagopal, Gnanathas v. M.C.I. (F.C., no. IMM-1350-11), Hughes, November 10, 2011; 2011 FC 1277, at para. 11.

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Note 156

Sivaraththinam, Mayooran v. M.C.I. (F.C., no. IMM-13174-12), Annis, February 20, 2014; 2014 FC 162.

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Note 157

See Gopalarasa, Raveendran v. M.C.I. (F.C., no. IMM-4617-13), Diner, November 26, 2014; 2014 FC 1138 at para 27. Also see Conka, Emil v. M.C.I. (F.C. no. IMM-4601-17), Strickland, May 23, 2018; 2018 FC 532 where the Court found that the PRRA officer had applied an incorrect or elevated test by requiring the applicant to demonstrate a sustained and systemic denial of his core human rights that would "prevent his basic functioning in Slovakian society".

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Note 158

Sebastiao v. Canada (M.C.I.), 2016 FC 803 at paras 11-15. See also: Nageem v. Canada (M.C.I.), 2012 FC 867 at paras 24– 25; Ye v. Canada (M.C.I.), 2014 FC 1221 at para 15; Elisme v. Canada (M.C.I.), 2019 FC 1306 at paras 21-23.

Return to note 158 referrer

Note 159

Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1 at para 10.

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Note 160

Halder v. Canada (Citizenship and Immigration), 2019 FC 922.

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Note 161

Sivagnanam v. Canada (Citizenship and Immigration), 2019 FC 1540.

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Note 162

Gomez Dominguez v. Canada (Citizenship and Immigration), 2020 FC 1098 at paras 27-35.

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Note 163

Chaudri, Tahir Ahmad Nawaz v. M.E.I. (F.C.A., no. A-1278-84), Thurlow, Hugessen, McQuaid, June 5, 1986.  Reported: Chaudri v. Canada (Minister of Employment and Immigration) (1986), 69 N.R. 114 (F.C.A.); Diallo, Abdou Salam v. M.C.I. (F.C.T.D., no. A-1157-92), Noël, June 8, 1995.

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Note 164

Ghazizadeh, Reza v. M.E.I. (F.C.A., no. A-393-90), Hugessen, MacGuigan, Décary, May 17, 1993.  Reported: Ghazizadeh v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 236 (F.C.A.).

Return to note 164 referrer

Note 165

Demirtas, Alev v. M.C.I. (F.C., no. IMM-1781-10), O’Keefe, May 19, 2011; 2011 FC 584. See also Hannoon, Rami v. M.C.I. (F.C., no. IMM-3079-11), O’Keefe, April 18, 2012; 2012 FC 448, where the Court noted that “once a sur place claim was present, it was for the Board to deal with it …and should have considered the evidence and arguments presented.” In Gurung, Subash v. M.C.I. (F.C., no. IMM-10808-12), Mosley, October 16, 2013; 2013 FC 1042, the Court allowed the judicial review application because the RPD failed to deal with the sur place claim. Although the sur place claim was raised late, the issue was squarely put before the Board at the hearing and in post-hearing evidence.  In Desalegn, Tiruedel v. M.C.I. (F.C. no., IMM-2400-16), Russell, November 25, 2016; 2016 FC 1311, the Court held that where an appellant raises a sur place issue in her submissions to the RAD, the RAD should consider the issue. The same obligation applies to a PRRA officer, see Reyad Gad, Malak Lofti v. M.C.I. (F.C., no. IMM-4714-10), Harrington, March 14, 2011; 2011 FC 303.

Return to note 165 referrer

Note 166

Huang, Xiao Fang v. M.C.I. (F.C., no. IMM-3396-11), Zinn, February 10, 2012; 2012 FC 205. In this case, the evidence that was discounted without an explanation related to the claimant’s current religious beliefs.

Return to note 166 referrer

Note 167

Moradi, Ahmad v. M.C.I. (F.C.T.D., no. IMM-2317-97), MacKay, September 23, 1998.

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Note 168

Maina, Ali Adji v. M.C.I. (F.C.T.D., no. IMM-1221-99), Gibson, March 14, 2000; Yang, Hua v. M.C.I. (F.C.T.D., no. IMM-380-00), Gibson, November 24, 2000.  But see Igbinosun, Nelson v. M.C.I. (F.C.T.D., no. IMM-7410-93), McGillis, November 17, 1994, M.C.I. v. Mbouko, Augustin (F.C. No. IMM-1988-04), Lemieux, January 31, 2005; 2005 FC 126, and M.C.I. v. Habimana, Djuma, (IMM-5616-08), Pinard, January 6, 2010, 2010 FC 16, where the Court held that the Board did not properly assess the impact of the contact with the foreign authorities, i.e., were they already aware of the claimant’s situation or was it disclosed that the claimant had claimed refugee protection in Canada. An analysis of those factors is a determining factor in deciding whether the claimant was endangered by the actions of the Canadian authorities.

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Note 169

Herrera, Juan Blas Perez de Corcho v. M.E.I. (F.C.T.D., no. A-615-92), Noël, October 19, 1993 at para 10. The Court upheld the Board's conclusion that the claimant had no subjective fear and was not a bona fide refugee because the basis for his alleged fear, namely speaking out against the Cuban regime after claiming refugee status in Canada, was a self-serving act intended to facilitate his refugee claim.

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Note 170

Asfaw, Napoleon v. M.C.I.  (F.C.T.D., no. IMM-5552-99), Hugessen, July 18, 2000 at para 4.

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Note 171

Zewedu, Haimanot v. M.C.I. (F.C.T.D., no. IMM-5564-99), Hugessen, July 18, 2000 at para 5.

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Note 172

Ngongo, Ndjadi Denis v. M.C.I. (F.C.T.D., no. IMM-6717-98), Tremblay-Lamer, October 25, 1999.

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Note 173

James C. Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991) at page 39.

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Note 174

Ghasemian, Marjan v. M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003; 2003 FC 1266. See also: Ding v. Canada (Citizenship and Immigration), 2014 FC 820; Yang v. Canada (Citizenship and Immigration), 2012 FC 849.

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Note 175

Danian v. Secretary of State for the Home Department, [1999] E.W.J. No. 5459 online: QL.

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Note 176

Ejtehadian, Mostafa v. M.C.I. (F.C., no. IMM-2930-06), Blanchard, February 12, 2007; 2007 FC 158. See also: Mohajery, Javad v. M.C.I. (F.C., no. IMM-2528-06), Blanchard, February 19, 2007; 2007 FC 185. For a similar case involving a Chinese convert, see Chen, Hanqi v. M.C.I. (F.C., no. IMM-5203-08), de Montigny, June 29, 2009; 2009 FC 677.

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Note 177

Ye, Jin v. M.C.I. (F.C., no. IMM-5518-13), Zinn, January 8, 2015; 2015 FC 21. See also Yang, Xiaohong v. M.C.I. (F.C., no. IMM-8012-11), Rennie, July 4, 2012; 2012 FC 849, where the Court found the RPD decision to be unreasonable because it had erroneously said there exists a “good faith” requirement for one's religious beliefs.

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Note 178

Mutangadura, Chipo Pauline v. M.C.I. (F.C., no. IMM-2553-06), Phelan, March 20, 2007; 2007 FC 298.

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Note 179

See Nthoubanza, Arthur Jholy v. M.C.I. (F.C.T.D., no. IMM-207-98), Denault, December 17, 1998. See also Sani, Navid Shahnazary v. M.C.I. and M.P.S.E.P.C. (F.C., nos. IMM-5284-07 and IMM-5285-07), Lagacé, July 30, 2008; 2008 FC 913, where, given the doubts about the sincerity with respect to the claimant's conversion, the PRRA officer found that he could very well return to Islam once he was back in Iran and thus avoid being considered an apostate.

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Note 180

Urur, Mohamed Ahmed v. M.E.I. (F.C.A., no. A-228-87), Pratte, Joyal, Walsh, January 15, 1988.In Cai, Heng Ye v. M.C.I. (F.C.T.D., no. IMM-1088-96), Teitelbaum, May 16, 1997, the Court underscored the importance of considering the claimant's activities both in the home country and abroad in combination.

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Note 181

In Vafaei, Farah Angiz v. M.E.I. (F.C.T.D., no. IMM-1276-93), Nadon, February 2, 1994, the Court referred specifically to paragraph 96 of the UNHCR Handbook. See also André, Marie-Kettelie v. M.E.I. (F.C.T.D., no. A-1444-92), Dubé, October 24, 1994, where the CRDD found that the claimant's participation in a large pro-Aristide demonstration in Montreal was not likely to cause her problems in Haiti.

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Note 182

Win, Ko v. M.C.I. (F.C., no. IMM-1248-08), Shore, March 28, 2008; 2008 FC 398.

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Note 183

Gebremedhin v. Canada (Immigration, Refugees and Citizenship), 2017 FC 497. See also: Eshetie v. Canada (Citizenship and Immigration), 2019 FC 1036.

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Note 184

Zhu, Yong Qin v. M.C.I. (F.C.T.D., no. IMM-5678-00), Dawson, September 18, 2001; 2001 FCT 1026.  Reported:  Zhu v. Canada (Minister of Citizenship and Immigration), [2002] 1 F.C. 379 (T.D.). The claimant, who arrived on a Korean vessel, had informed the RCMP about individuals later charged in Canada with offences relating to human smuggling and was subpoenaed to testify at their trial. He feared that if he returns to China he would be severely punished by the Chinese authorities and that the “snakeheads” in China seriously harm him, if not kill him.

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Note 185

Kammoun, M. Hammadi Ben Hassen v. M.C.I. (F.C., no. IMM-4096-05), Tremblay-Lamer, February 3, 2006; 2006 FC 128.

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Note 186

Arokkiyanathan v. Canada (Citizenship and Immigration), 2019 FC 1274 at para 12. See also:  Girmaeyesus v. Canada (Minister of Citizenship and Immigration), 2010 FC 53 at paras 28-29.

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Note 187

Chen v. Canada (Citizenship and Immigration) 2020 FC 907 at para 11.

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Note 188

Mohebbi, Hadi v. M.C.I. (F.C., no. IMM-3755-13) Harrington, February 26, 2014; 2014 FC 182.

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Note 189

See Nthoubanza, Arthur Jholy v. M.C.I. (F.C.T.D., no. IMM-207-98), Denault, December 17, 1998.  See also Sani, Navid Shahnazary v. M.C.I. and M.P.S.E.P.C. (F.C., nos. IMM-5284-07 and IMM-5285-07), Lagacé, July 30, 2008; 2008 FC 913, where, given the doubts about the sincerity with respect to the claimant's conversion, the PRRA officer found that he could very well return to Islam once he was back in Iran and thus avoid being considered an apostate.

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Note 190

Su v. Canada (Citizenship and Immigration), 2013 FC 518. A case where the Court accepted that the RPD can import its overreaching credibility findings into its implicit consideration of whether a sur place claim arises in the case is Sanaei, Izad v. M.C.I. (F.C., no. IMM-11449-12), Strickland, April 30, 2014; 2014 FC 402. In Su, Jialu v. M.C.I. (F.C., no. IMM-4968-14), Fothergill, May 25, 2015; 2015 FC 666, the Court noted that the RPD is permitted to conduct its sur place analysis in view of its concerns regarding the original authenticity of a claim but must nevertheless determine, either implicitly or explicitly, whether the applicant, due to events that have transpired since his departure from his country of origin, has become a member of a persecuted group and whether he would now face persecution upon his return.

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Note 191

Hou v. Canada (Citizenship and Immigration), 2012 FC 993.

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Note 192

Barry, Abdoulaye v. M.C.I. (F.C.T.D., no. IMM-573-01), Pinard, February 26, 2002; 2002 FCT 203; Ghribi, Abdelkarim Ben v. M.C.I. (F.C., no. IMM-2580-02), Blanchard, October 14, 2003; 2003 FC 1191; Lai, Li Min v. M.C.I. (F.C., no. IMM-1849-04), Simpson, February 8, 2005; 2005 FC 179.

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Note 193

Manzila, Nicolas v. M.C.I. (F.C.T.D., no. IMM-4757-97), Hugessen, September 22, 1998.  See also A. B. v. M.C.I. (F.C., no. IMM-3497-08), Gibson, March 27, 2009; 2009 FC 325. Reported: A.B. v. Canada (Minister of Citizenship and Immigration), [2010] 2 F.C.R. 75 (F.C.), a PRRA case involving a claimant who rejected Islam after he came to Canada.

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Note 194

Jiang v. Canada (Citizenship and Immigration), 2012 FC 1067. See also: Lin v. Canada (Citizenship and Immigration), 2019 FC 854 at para 30; Guo v. Canada (Citizenship and Immigration), 2019 FC 704 at para 42; Li v. Canada (Citizenship and Immigration), 2019 FC 454 at para 25; Lin v. Canada (Citizenship and Immigration), 2019 FC 450 at para 49; Li, Mengting v. M.C.I. (F.C. no. IMM-5548-17), Gagné, August 31, 2018; 2018 FC 877 at para 29.

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Note 195

Chen v. Canada (Citizenship and Immigration), 2014 FC 749 at para 58.

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Note 196

Zheng v. Canada (Citizenship and Immigration), 2019 FC 904 at paras 23-28. 

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Note 197

Chaudri, Tahir Ahmad Nawaz v. M.E.I. (F.C.A., no. A-1278-84), Thurlow, Hugessen, McQuaid, June 5, 1986.  Reported:  Chaudri v. Canada (Minister of Employment and Immigration) (1986), 69 N.R. 114 (F.C.A.); Diallo, Abdou Salam v. M.C.I. (F.C.T.D., no. A-1157-92), Noël, June 8, 1995.

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Note 198

Ghazizadeh, Reza v. M.E.I. (F.C.A., no. A-393-90), Hugessen, MacGuigan, Décary, May 17, 1993.  Reported:  Ghazizadeh v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 236 (F.C.A.).

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Note 199

Ben Zaied, Ali v. M.C.I. (F.C., no. IMM-7171-11), Boivin, June 18, 2012; 2012 FC 771.

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Note 200

In M.C.I. v. Asaolu, Daniel Oluwafemi (F.C.T.D., no. IMM-237-98), Campbell, July 31, 1998. Reported:  Canada (Minister of Citizenship and Immigration) v. Asaolu (1998), 45 Imm. L.R. (2d) 190 (F.C.T.D.), Canadian immigration authorities sent the claimant's story and photograph to a Canadian visa officer in Nigeria to facilitate an investigation of his claim of persecution. The Court considered paragraphs 94-96 of the UNHCR Handbook.  In Mutamba, Phydellis v. M.C.I. (F.C.T.D., no. IMM-2868-98), Pinard, April 15, 1999, Canadian authorities in Nairobi and Harare made inquiries of the Zimbabwean government with respect to the claimant's passport application.

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Note 201

Nasha Ragguette, Onica Efuru v. M.C.I. (F.C., no. IMM-7214-10), Rennie, December 21, 2011; 2011 FC 1511.

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