Statement from Ekens Azubuike, founder of Ekens Foundation International. 

The United Nations Human Rights Committee is not the right place to seek redress for injustices or a human rights solution.

Because, in recent times, all the committee decisions have been influenced by the host countries, especially the committee has dramatically turned a blind eye to the Canada government’s abandonment of their international obligations towards the violations of multiple human rights abuses on refugees and asylum seekers.

Whether regarding the maltreatment of refugees, detention, and deportation of those rejected refugees with mental illness, they face hardship of irreparable harm and inhumane, degrading treatment.

The committee has deliberately silenced the Canadian government, using the refugees as agents of persecution as a source of information in the determination of international protection for refugees against international customary law. So all these ceremonial political statements cannot be taken seriously. We’re in the twenty-third century, and there is a need to reshuffle the United Nations Human Rights Administrative Council to balance decisions without interference from state parties.

Witten by Ekens Azubuike, founder of Ekens Foundation International. 

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly Resolution 217A) as a common standard of achievements for all peoples and all nations. It sets out, for the first time, fundamental human rights to be universally protected and it has been

PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction. 

ARTICLE 1.

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

ARTICLE 2.

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

ARTICLE 3.

Everyone has the right to life, liberty and security of person.

ARTICLE 4.

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

ARTICLE 5.

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

ARTICLE 6.

Everyone has the right to recognition everywhere as a person before the law.

ARTICLE 7.

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

ARTICLE 8.

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

ARTICLE 9.

No one shall be subjected to arbitrary arrest, detention or exile.

ARTICLE 10.

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

ARTICLE 11.

(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

ARTICLE 12.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

ARTICLE 13.

(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.

ARTICLE 14.

(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

ARTICLE 15.

(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

ARTICLE 16.

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

ARTICLE 17.

(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.

ARTICLE 18.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

ARTICLE 19.

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

ARTICLE 20.

(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.

ARTICLE 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22.

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

ARTICLE 23.

(1) Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.

ARTICLE 24.

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

ARTICLE 25.

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

ARTICLE 26.

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.

ARTICLE 27.

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

ARTICLE 28.

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

ARTICLE 29.

(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

ARTICLE 30.

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

THE GENEVA CONVENTION OF 1951 ON REFUGEES

The 1951 Refugee Convention is the key legal document that forms the basis of our work. Ratified​ by 145 State parties, it defines the term ‘refugee’ and outlines the rights of the displaced, as well as the legal obligations of States to protect them.

THE IMPLEMENTATION GUIDELINES OF THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES

THE OUTLINE OF THE REFUGEES CONVENTION AND THE PROTOCOL

This is the outline difficulties which have been experienced in the implementation of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and to seek, from Executive Committee members parties to either general information about the methods of implementation adopted in their countries, and the successes achieved, or particular obstacles encountered. UNHCR hopes thereby to obtain a more detailed picture of how obligations and responsibilities assumed by States parties, pursuant to these instruments, are, or indeed can be, implemented in full. On the basis of information provided at this session, and to be sought at a later date from all States parties, UNHCR plans to submit a more comprehensive paper on implementation to the forty-first session of the Executive Committee in 1990.

2. In undertaking this exercise, UNHCR remains fully aware that the Convention and Protocol are not the sole sources of international obligations and responsibilities towards refugees. However, the fortieth anniversary of the 1951 Convention will be celebrated in 1991. UNHCR is planning additional promotional activities to commemorate this important occasion and hopes that through dialogue with the Executive Committee, and generally with contracting States, it will by that time have obtained a clearer and more detailed picture of the efficacy and strengths both of the Convention and its Protocol.

II. BACKGROUND

3. The 1951 Convention relating to the Status of Refugees and its 1967 Protocol together are the most comprehensive instruments which have been adopted to date on a universal level to safeguard the fundamental rights of refugees and to regulate their status in countries of asylum. As such they are fundamental to the international regime of refugee protection. They help in ensuring that refugees are granted basic humanitarian treatment. They also facilitate the exercise of the protection function by the United Nations High Commissioner for Refugees. In order to maximize adherence, they are carefully framed to define minimum standards while at the same time not imposing on States any obligations going beyond those which States could reasonably be expected to assume. There are currently 106 States parties to one or both of these instruments.

4. Recognizing that the Convention and Protocol “constitute the cornerstone of international protection” of refugees, the Executive Committee, at its thirty-seventh session in 1986, adopted two important conclusions, Nos. 42 and 43 (XXXVII), dealing with accession to and application of the two instruments. The Committee, in paragraph 3 of Conclusion 43, stressed in particular that:

“in addition to accession, effective application of the principles and provisions of the 1951 Convention and the 1967 Protocol are of the utmost importance.”

PARAGRAPH (J) OF CONCLUSION 42,:

Recommended to States which have not yet done so to consider adopting appropriate legislative and/or administrative measures for the effective implementation of the international refugee instruments, making the necessary distinction between refugees and other aliens.”

5. The Office of the United Nations High Commissioner for Refugees has been mandated by the international community with a particular responsibility to ensure effective implementation of the Convention and Protocol within the overall framework of its protection responsibilities. The Office is specifically called upon, pursuant to Paragraph 8(a) of its Statute, inter alia, to supervise the application of international conventions for the protection of refugees.

6. Article 35 of the 1951 Convention requires contracting States to facilitate UNHCR’s supervisory duty in relation to the Convention. By virtue of Article 35(2) (b and c), States undertake to provide UNHCR, in the appropriate form, with information and statistical data concerning the implementation of the Convention and laws, regulations and decrees relating to refugees which are in force. Article II of the 1967 Protocol imposes the same obligations on States as Article 35 of the Convention.

7. Pursuant to its responsibilities under Article 35 of the Convention and Article II of the Protocol, and in line with the above-mentioned conclusions of the Executive Committee, UNHCR has requested specific information on an ad hoc basis on particular articles. Moreover, within the framework of annual reporting exercises, particularly in the area of protection, UNHCR Field Offices have sought and continue to receive certain information from States. This information assists the Office generally to monitor compliance with specific Convention and Protocol undertakings. The information is also used in the preparation of segments of UNHCR’s annual reports to the Executive Committee and to the General Assembly, through the Economic and Social Council. A strengthening and expansion of co-operation between States and UNHCR in the information area would go even further in facilitating UNHCR’s tasks of supervising the application of the Convention and reporting to the competent organs of the United Nations.

III. IMPLEMENTATION OF THE CONVENTION

8. It is clear from information available to UNHCR that in many cases implementation of the Convention is quite satisfactory. This is particularly the case where States parties have adopted specific legislative and/or administrative measures to implement the Convention and have ensured that these laws, regulations or measures are known and understood by the concerned officials. There are instances where such laws or measures go further than the minimum standards of the Convention and Protocol. In many cases, implementation has been much enhanced by the introduction of fair and expeditious procedures for the determination of refugee status, while the judiciary in a number of countries has contributed towards effective implementation through positive application of the provisions of those instruments.

9. On the other hand, there are a number of obstacles which impede the full and proper implementation of the Convention in the territory of many contracting States. These obstacles are, generally speaking, of three kinds, viz, socio-economic, legal and policy or practical. They may be summarized as follows.

(I) SOCIO-ECONOMIC CONSIDERATIONS

10. An essential purpose of the 1951 Convention is to define the legal status of the refugee in the territory of the contracting Party. It contains comprehensive provisions on the obligations and rights of refugees in areas as diverse as gainful employment, labour legislation, social security, public relief and education. Even under normal circumstances, any contracting State can be expected to face some dome tic opposition in securing the basic needs of a particular group of aliens in relation to such matters, which are also of direct and daily concern to its own nationals.

11. The arrival of large numbers of asylum-seekers and the absorption of some or even all of them as refugees, even on a temporary basis, can create serious strains for host countries. This is particularly the case for poorer communities where the ability of the people and the inclination of the government to shoulder the resulting burden may be severely diminished by economic difficulties, high unemployment, declining living standards, and shortages in housing and land. Such problems are often compounded by continuing man-made disasters, or natural disasters such as drought, as well as the detrimental effects of population influxes on the environment and already scarce natural resources. Inevitably, there are tensions between international obligations and national responsibilities in such circumstances, with the result, in a number of States, that priority is accorded to nationals over all aliens, including refugees, in fields such as employment, education or housing.

12. Serious disparities in levels of economic and social development throughout the world, coupled with greater international or transcontinental mobility, and domestic problems including unemployment and security-related matters have meant likewise that the industrialized countries have become circumspect in controlling entry into their territory. Again, international responsibilities towards refugees and national border-control requirements are not always easy to harmonize.

(II) LEGAL IMPEDIMENTS

13. Legal problems arise in the first instance where no specific legislative arrangements are made to incorporate the Convention and Protocol into national law. This may be a less significant factor where international instruments are constitutionally self-executing, but may become of greater significance where national legislation is required in order to give international obligations the force of law domestically. This problem of the legal status of the obligations incurred is made more complex where a State has lodged reservations to one or other of the more important provisions of the Convention, such as Articles 31 (non-penalization for illegal entry) or 32 (prohibition of expulsion). In some cases, such reservations have proved more a question of legal form than of actual practice, but problems nevertheless continue to arise, particularly where States have made reservations according to which provisions drafted in mandatory language are considered as only recommendations.

14. A State party to a treaty is under..a general duty to ensure that its domestic laws are in conformity with its international obligations. In certain countries laws are in force which are directly at odds with responsibilities to refugees incurred under the Convention and Protocol. The main areas where restrictions on the rights of refugees have been specifically legislated include freedom of movement (Article 26), moveable and immovable property (Article 13), employment rights (Articles 17-19), identity papers and travel documents (Articles 27 and 28), naturalization (Article 34), and the taking of exceptional measures (Article 8).

15. Even where legislation does not directly contravene specific provisions of the Convention or Protocol, there are, in a number of countries, laws in force which, in their application, may well be inconsistent with the object and purposes of those instruments, as well as, on occasion, basic principles of refugee protection. This problem has arisen, for example, where regulations brought in to check perceived abuses of asylum procedures have worked indiscriminately to also hinder the access of refugees to status determination procedures and the rights and protections established in the Convention and Protocol.

16. The legislative approach adopted by States to regulate refugee rights can, in itself, negatively influence their realization. In some countries, for example, the issue of refugee protection is approached as one of defining not the rights themselves but rather the powers vested in refugee officials. This means that the protection of refugee rights becomes an exercise of powers and discretions by those officials rather than enforcement of specific rights identified and guaranteed by law. In other cases the realization of refugee rights is left to depend ultimately on an exercise of ministerial discretion.

17. In many cases, the judiciary has an important role to play in protecting rights provided for in the Convention and Protocol. Where the courts adopt an unduly restrictive interpretation of the provisions of those instruments, this serves as a serious impediment to their full and proper implementation. In some instances, for example, the scope assigned by the courts to the concept of persecution, or of well founded fear, is arguably too narrow. Evidentiary burdens can also be very heavy and applicants who are unable to produce evidence in support of claims are often refused the benefit of the doubt. It has to be added, however, that the ambiguous phraseology of certain provisions of the Convention itself allows considerable latitude for restrictive interpretation. Hence, in certain national jurisdictions, the courts have differed over the proper interpretation of important provisions of the Convention.

(III) IMPEDIMENTS IN POLICY AND PRACTICE

18. States parties to the 1951 Convention and the 1967 Protocol have not only assumed obligations concerning the status and treatment of refugees but have also undertaken to implement these instruments effectively and in good faith. Legislation is but one way in which compliance with international obligations may be assured. Proper fulfilment of this undertaking often becomes a function of political will and government policy, which in turn can be influenced by perceptions of the national interest and problems of a geopolitical nature.

19. In the assessment by certain States it appears that facilitating enjoyment of refugee rights on their territory may act as a “pull” factor. In other States there is the belief that full enjoyment of rights might work against voluntary repatriation which they regard as the best durable solution. Curtailment of rights in certain of these countries is adopted as a deterrence measure to dissuade further arrivals. One effective method to limit rights is to charge for them. In certain countries, it is governmental policy to charge heavily for residence or work permits and/or naturalization applications, to the point where refugees, already financially disadvantaged, are unable, without outside assistance, to meet the costs involved.

20. Practices such as detention of refugees also have, to some extent, a policy base in deterrence. In many countries, such measures are permitted or required by law, although in effect they penalize refugees for their illegal entry, despite the prohibitions in this regard contained in Article 31 of the Convention.

21. In spite of widespread international recognition that the grant of asylum is a peaceful and humanitarian act which should therefore not be the cause of tension among States, preservation of friendly relations with neighbouring countries also often plays a significant role in many decisions taken by States as to what rights refugees should enjoy. Ethnic and cultural division. between nationals and different refugee groups also lead, in certain countries, to discrimination against specific groups of refugees as far as their status in the asylum country is concerned. Naturalization of refugees, for instance, is often a politically sensitive issue and historical animosities, ethnic differences or on-going political conflicts are likely to have an important influence on decisions on naturalization in a number of countries.

22. In many instances there are also serious bureaucratic impediments to full implementation. Bureaucratic structures may be unwieldy and inefficient with legislative or administrative changes proceeding very slowly. Often, the requisite administrative structures are lacking, while there is a dearth of manpower and, more important, of adequate training of officials responsible for interpreting and applying Convention and Protocol obligations. In a number of countries expert advice is not available to assist asylum-seekers to understand their rights and formulate their claims. UNHCR’s strengthened training and promotion activities have proved effective, but only partially, to help to overcome such problems.

IV. REQUEST FOR INFORMATION

23. The above is a general survey of the types of problems which impede the full and effective implementation of the 1951 Convention and its 1967 Protocol. They are presented with a view to opening constructive dialogue on how States and UNHCR, individually and jointly, might facilitate and improve implementation of the Convention and Protocol on a global basis.

24. Sub-Committee participants are asked to consider this survey and, consistent with responsibilities on States parties as contained in Article 35, to provide UNHCR, through this session of the Sub-Committee, with comment and additional information on methods of implementing the Convention and/or Protocol in their respective countries and the problems experienced in this regard. It would be particularly useful for Sub-Committee members to focus on legislation or arrangements by which the Convention or Protocol become part of the law of the land; laws, programmes, or policies by which specific rights provided for in the Convention (e.g. in relation to naturalization, education, training or employment of refugees) are realized; and the main obstacles hindering full implementation of Convention or Protocol responsibilities.

25. In addition, it would be valuable to receive from States that have not become party to one or both these instruments, information concerning legislation, administrative measures and policies in force designed to promote and protect refugee rights similar to those recognized in the Convention and the Protocol.

V. CONCLUSION

26. Those countries which have, in a humanitarian spirit, acceded to the 1951 Convention and/or its 1967 Protocol have accepted, within the framework of these instruments, the international protection of refugees as a common trust. The essential character of such a trust is that responsibility for full and effective implementation of those instruments is either shared by everyone or it may well be borne by no one. Last year, in discussing international solidarity and refugee protection, the Sub-Committee turned its attention to the need for co-operation and solidarity with international protection efforts on behalf of refugees in the face of restrictive national policies and practices which threaten the foundations of the common cause upon which the effective implementation of the 1951 Convention and its 1967 Protocol depend. It is now timely, particularly in light of the forthcoming fortieth anniversary of the 1951 Convention, that the Sub-Committee, together with UNHCR, should commence this study of how the Convention and Protocol are implemented. The ultimate goal of this exercise is to strengthen the collective capacity of States to meet the protection needs of all refugee

WELL-FOUNDED FEAR OF PERSECUTION  IN GENE

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

Claimants must establish that they have a subjective fear of persecution and also that the fear is well-founded in an objective sense, that is, it is justified in light of the objective situation. 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

Claimants do not have to establish that they have been persecuted in the past. Even if they can do so, “past persecution is insufficient of itself to establish a fear of future persecution. 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.

In Natynczy, 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.

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.5.2. Test – Standard of Proof

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.The evidence must show only that there are “good grounds" for fearing persecution. 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?

In Li 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 persecution and asking claimants to establish that they “would” be persecuted in the future, has been held to be the wrong test.However, in one case, the Court held that the RPD 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 member was speaking of the reasonable likelihood, not the absolute certaint

The test for the well-foundedness of a fear of persecution was further clarified in Ponniah,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 the Court referred to the test set out in Adjei and Ponniah and rejected the argument that when the Refugee Division 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 Rajagopalthat the Officer misstated the test when he concluded that the claimant “would not be at particular risk”.

In Sivaraththinam 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:

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 tribunal 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.

With regard to the standard of proof used to assess evidence, the Federal Court has held that certain phrasing in CRDD reasons, such as “we are not convinced or “the claimant did not persuade the panel” implied overly exacting standards of proof.

Basic of Fear and Subjective

A claimant’s subjective fear of persecution must have an objective basis.

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.

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.

Both subjective fear and the objective basis for it are crucial elements in the definition of a Convention refugee. In Kamana, dam Justice Tremblay-Lamer held that the panel’s finding that the claimant had not credibly established the subjective element was reasonable and that:

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, a case which was followed by a number of judges at the Trial Division. In 2002, Justice Tremblay-Lamer was faced with a challenge to her holding in the Maqdassy case. The applicant relied on Yusuf, an earlier decision by the Federal Court of Appeal which 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 Maqdass 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,in which the Supreme Court made it clear that both components of the test were required. InGeron, 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 Nazir 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.”

Establishing the Subjective and Objective Elements

As mentioned in Yusuf, children or persons suffering from mental disability may be incapable of experiencing fear. The Patel case concerns a minor but notes that either age or disability may cause a claimant to be incapable of articulating his or her subjective fear in a rational manner. If a claimant is not competent and the evidence establishes an objective basis for fear of persecution, the person acting as the claimant’s designated representative may establish a subjective fear.However, the claim must be evaluated from the perspective of the minor.In some cases, it may be possible for the tribunal to infer the subjective fear from the evidence. As the Court points 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.

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 Federal Court and Federal Court of Appeal have provided a number of observations on this subject, including the following: MacGuigan, J. in Shanmugarajahit 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 Cullen, J. in Parada held that if a claimant testifies that he fears for his life and there is evidence to reasonably support those fears, it is improper for the Refugee Division to reject that testimony out of hand without making a negative finding of credibility

Teitelbaum, J. in Assadi 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, Stated that the subjective component of the well-founded fear test depended solely on the claimant’s credibility.

Cullen, J. in Dirie “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. 

Lemieux, J. in Hatami 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 Herrera 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 Ahoua “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 Tranquino“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, after stating 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 Kunin 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 only impugn 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

When theoncludes 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 some behaviour of the claimant which it considers to be inconsistent with that allegation. Case law has confirmed that there are certain ways that persons fearful of serious harm can normally be expected to act. As the Court stated in Aslam,

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, voluntarily returning to that country, passing through other countries without asking for protection or failing to make a claim for protection immediately upon arrival in Canada are all behaviours which, in numerous cases, have been found to be indicative of a lack of subjective fear.However, none of these behaviours mandates the rejection of a claim to Convention refugee status without further examination. The Board 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 this evidence is considered to support the existence of subjective fear.  Conversely, adverse inferences may be drawn when claimants fail to vary their routine or to take other precautions against falling victim to the persecution they claim to fear.

Delay

When claimants do not take steps to seek protection promptly, decision-makers often conclude that their behaviour shows a lack of subjective fear. 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 acknowledged that delay is, nonetheless, a relevant, and potentially important consideration. 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

As Madam Justice Simpson explained in Cruz, 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.

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 delay is accepted as evidence that establishes, on a balance of probabilities, that the claimant lacks subjective fear.Such a determination would be made on the basis of a claimant’s failure to provide good reasons for the delay. Mr. 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.

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.

It is essential that decision-makers express clearly their findings on the credibility of a claimant’s explanation for behaving in a particular manner. When the Board does not accept an explanation as valid, the member is obliged to give reasons. In Martinez Requena, 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 consideration but it is not in and of itself determinative. While short delays may tend to be more easily explained,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. Madam Justice Bédard reviewed a decision where the Board had 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. 

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, 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 one case where 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, 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.

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 Dilunathe Trial Division held, in obiter, that the Refugee Division 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, 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 another case 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 she left the U.K. and did not establish that the claimant was suffering from any mental disorder at the time she gave up protection.

Delay in Leaving the Country of Persecution

Mr. Justice Shore stated in Rahimthat “[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 he or she had reason to fear persecution there normally calls into question the credibility of the fear. In Zuniga, 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.In Gebremichael 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 Federal Court has warned that it is problematic to consider delay to be indicative of an absence of subjective fear.

In Voyvodov, 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 Refugee Division 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,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 Ibrahimo

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

There is no provision in the Convention that obliges refugee claimants to seek asylum in the first country they reach. 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 a determinative, The claimant’s explanation must be considered in order to determine whether the claimant’s behavior can fairly be considered to be evidence of a lack of subjective fear.

A claimant’s behavior after leaving his or her country, but before arriving in Canada, may also be taken into consideration in determining whether the subjective component of a well-founded fear has been established. Failure to seek the protection of another country which is also a signatory to the Convention may be a significant factor to consider but is not in itself determination. Voluntarily leaving a country where the claimant could safely live is another example of behavior that can cast doubt on a claimant’s subjective fear.

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

Another important consideration is the age of the claimant. In Pulido Ruiz, the Court noted that:

It 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.

The significance of the failure to claim and the resulting conclusion of an absence of subjective fear is highlighted by the case ofMemarpour 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 choose not to claim in the third country because they have 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. The following are examples that illustrate how the various factors have been weighedIn transitThe 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.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

Family in CanadaFailure to make a refugee claim in an en-route country because the claimant would rather make the claim in Canada because he or she has family here may be a valid reason for not making the claim at the first opportunity

Ignorance of the processIn Perez, 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 the case of Bello, 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.

Little hope of successIn Madoui, 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.In Mekidech 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,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 Naeand that tard had erred in drawing an unreasonable inference that there was no subjective basis to the claim.In Liblizadeh, 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.

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 his or her country. These were the circumstances in Yoganathan Mr. Justice Gibson followed the same reasoning as the Court of Appeal in Hue Both cases involved seamen. Justice Gibson held that the CRDD 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 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, 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, 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.

Delay in Making a Claim Upon Arrival in Canada

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

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 Gabeyehstated 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 claimin T

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 persons who have legal status in Canada fail to claim. In Gyawali, 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, 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 case 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 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

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

In Ahshraf, 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, 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, inSingh, 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.

Re-Availment of Protection

The issue of re-availment arises in two contexts: 1) the assessment of subjective fear in the determination of the refugee claim, and 2) the assessment of a cessation application made by the Minister under IRPA, section 108(2).

Return to the country of nationality is the kind of re-availment that is most often discussed in the case law. Citing several cases inKabengele,Mr. Justice Rouleau stated:

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)

However, 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, or has ceased to be a Convention refugee. The Court gave the examples of evidence of a claimant’s belief that country conditions have changed or evidence of a claimant’s temporary visit while he or she remained in hiding, that would be evidence inconsistent with a finding of a lack of subjective fear

The credibility assessment of the reasons claimants give for returning to their country is important.  If they clearly state that they did not intend to re-avail themselves of the protection of their country and assert not having lost their subjective fear, absent an adverse finding of credibility, the Board would err in finding that the claimants had re-availed themselves of protection and did not have a subjective fear. In Kanji, the Board made no express finding that it disbelieved the claimant’s evidence and it gave no reasons for doing so. The Court held that the claimant’s clear statement that she did not re-avail herself of the protection of India, nor lose her subjective fear contradicted and negated any possible finding to the contrary on the basis of the purely circumstantial evidence of her returns to India.

In Caballero, 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 Refugee Division that his behaviour was inconsistent with a well-founded fear of persecution.

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, 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 re-availment 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.

In Prapaharan, 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.”

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 document, and leaving or emigrating through lawful channels. 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,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,the Court held that the Board erred in drawing the inference that the applicant re-availed 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 re-avail himself of Sri Lanka’s protection.

The Federal Court has held that it is an error to find a lack of subjective fear when the claimant was removed to his or her country, and thus did not return voluntarily. In Kurtkapan,^Nthe 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.

Sur Place Claims and Well-Founded Fear

It is proper for the Refugee Division, when considering the subjective element, to look at the fact that the claimant took allegedly self-endangering actions after making his or her claim, and to inquire into the claimant’s motivation.However, the case law is consistent that if dealing with a sur place claim, even when the motivation indicates the absence of subjective fear, the analysis cannot end there

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 he stated:

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 a similar case,decided on the same date, he 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.

FOR EXAMPLE READ A REMARKABLE COURT RULING IN CANADA

UNITED NATION CONVENTION AGAINST TORTURE

CONVENTION TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in accordance with article 27 (1)

THE STATES PARTIES TO THIS CONVENTION,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that those rights derive from the inherent dignity of the human person,

Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,

Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,

Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975,

Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,

Have agreed as follows:

PART I

ARTICLE 1

1. For the purposes of this Convention, the term “torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

ARTICLE 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

ARTICLE 3

1. No State Party shall expel, return (“refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

ARTICLE 4.

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

ARTICLE 5

Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

(b) When the alleged offender is a national of that State;

(c) When the victim is a national of that State if that State considers it appropriate.

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

ARTICLE 6

1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

2. Such State shall immediately make a preliminary inquiry into the facts.

3. Any person in custody pursuant to paragraph I of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides.

4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.

ARTICLE 7

1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.

ARTICLE 8

1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State.

3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State.

4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1.

ARTICLE 9

1. States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings.

2. States Parties shall carry out their obligations under paragraph I of this article in conformity with any treaties on mutual judicial assistance that may exist between them.

ARTICLE 10

1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.

2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person.

ARTICLE 11

Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.

ARTICLE 12

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

ARTICLE 13

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

ARTICLE 14

1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.

ARTICLE 17

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

ARTICLE 16

1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.

2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.

PART II

ARTICLE 17

1. There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of ten experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience.

2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and who are willing to serve on the Committee against Torture.

3. Elections of the members of the Committee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

4. The initial election shall be held no later than six months after the date of the entry into force of this Convention. At. Ieast four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.

5. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 3 of this article.

6. If a member of the Committee dies or resigns or for any other cause can no longer perform his Committee duties, the State Party which nominated him shall appoint another expert from among its nationals to serve for the remainder of his term, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.

7. States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties.

ARTICLE 18

1. The Committee shall elect its officers for a term of two years. They may be re-elected.

2. The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that:

(a) Six members shall constitute a quorum;

(b) Decisions of the Committee shall be made by a majority vote of the members present.

3. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under this Convention.

4. The Secretary-General of the United Nations shall convene the initial meeting of the Committee. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.

5. The States Parties shall be responsible for expenses incurred in connection with the holding of meetings of the States Parties and of the Committee, including reimbursement to the United Nations for any expenses, such as the cost of staff and facilities, incurred by the United Nations pursuant to paragraph 3 of this article.

ARTICLE 19

1. The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of the Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request.

2. The Secretary-General of the United Nations shall transmit the reports to all States Parties.

3. Each report shall be considered by the Committee which may make such general comments on the report as it may consider appropriate and shall forward these to the State Party concerned. That State Party may respond with any observations it chooses to the Committee.

4. The Committee may, at its discretion, decide to include any comments made by it in accordance with paragraph 3 of this article, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with article 24. If so requested by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph I of this article.

ARTICLE 20

1. If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party, the Committee shall invite that State Party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned.

2. Taking into account any observations which may have been submitted by the State Party concerned, as well as any other relevant information available to it, the Committee may, if it decides that this is warranted, designate one or more of its members to make a confidential inquiry and to report to the Committee urgently.

3. If an inquiry is made in accordance with paragraph 2 of this article, the Committee shall seek the co-operation of the State Party concerned. In agreement with that State Party, such an inquiry may include a visit to its territory.

4. After examining the findings of its member or members submitted in accordance with paragraph 2 of this article, the Commission shall transmit these findings to the State Party concerned together with any comments or suggestions which seem appropriate in view of the situation.

5. All the proceedings of the Committee referred to in paragraphs I to 4 of th is article s hall be con fidential , and at all stages of the proceedings the co-operation of the State Party shall be sought. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report made in accordance with article 24.

ARTICLE 21

1. A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure;

(a) If a State Party considers that another State Party is not giving effect to the provisions ofthis Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter;

(b) If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State;

(c) The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention;

(d) The Committee shall hold closed meetings when examining communications under this article; (e) Subject to the provisions of subparagraph

(e), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in this Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc conciliation commission;

(f) In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information;

(g) The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing;

(h) The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b), submit a report:

(i) If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;

(ii) If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report.

In every matter, the report shall be communicated to the States Parties concerned.

2. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

ARTICLE 23

1. A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.

2. The Committee shall consider inadmissible any communication under this article which is anonymous or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of this Convention.

3. Subject to the provisions of paragraph 2, the Committee shall bring any communications submitted to it under this article to the attention of the State Party to this Convention which has made a declaration under paragraph I and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

4. The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned. 5. The Committee shall not consider any communications from an individual under this article unless it has ascertained that:

(a) The same matter has not been, and is not being, examined under another procedure of international investigation or settlement;

(b) The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective reliefto the person who is the victim of the violation of this Convention.

6. The Committee shall hold closed meetings when examining communications under this article.

7. The Committee shall forward its views to the State Party concerned and to the individual.

8. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the SecretaryGeneral, unless the State Party has made a new declaration.

ARTICLE 23

The members of the Committee and of the ad hoc conciliation commissions which may be appointed under article 21, paragraph I (e), shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.

ARTICLE 24

The Committee shall submit an annual report on its activities under this Convention to the States Parties and to the General Assembly of the United Nations.

PART III

ARTICLE 26

1. This Convention is open for signature by all States. 2. This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 26This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the SecretaryGeneral of the United Nations.

ARTICLE 27

1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

2. For each State ratifying this Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force onthe thirtieth day after the date of the deposit of its own instrument of ratification or accession.

ARTICLE 28

1. Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article 20.

2. Any State Party having made a reservation in accordance with paragraph I of this article may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations.

ARTICLE 29

1 . Any State Party to this Convention may propose an amendment and file it with the Secretary-General of the United Nations. The SecretaryGeneral shall thereupon communicate the proposed amendment to the States Parties with a request that they notify him whether they favour a conference of States Parties for the purpose of considering an d voting upon the proposal. In the event that within four months from the date of such communication at least one third of the States Parties favours such a conference, the SecretaryGeneral shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted by the Secretary-General to all the States Parties for acceptance.

2. An amendment adopted in accordance with paragraph I of this article shall enter into force when two thirds of the States Parties to this Convention have notified the Secretary-General of the United Nations that they have accepted it in accordance with their respective constitutional processes.

3. When amendments enter into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Convention and any earlier amendments which they have accepted.

ARTICLE 30

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from thc date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

2. Each State may, at the time of signature or ratification of this Con vention or accession thereto, declare that it does not consider itself bound by paragraph I of this article. The other States Parties shall not be bound by paragraph I of this article with respect to any State Party having made such a reservation.

3. Any State Party having made a reservation in accordance with paragraph 2 of this article may at any time withdraw this reservation by notification to the Secretary-General of the United Nations.

ARTICLE 31

1. A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of- the notification by the Secretary-General .

2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective, nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective.

3. Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State.

ARTICLE 32

The Secretary-General of the United Nations shall inform all States Members of the United Nations and all States which have signed this Convention or acceded to it of the following:

(a) Signatures, ratifications and accessions under articles 25 and 26;

(b) The date of entry into force of this Convention under article 27 and the date of the entry into force of any amendments under article 29;

(c) Denunciations under article 31.

ARTICLE 33

1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States.