Refugee Criteria on the International Protection and Grounds of persecution

The definition of a Convention refugee states that a claimant’s fear of persecution must be “by reason of" one of the five enumerated grounds – that is race, religion, nationality, membership in a particular social group and political opinion. There must be a link between the fear of persecution and one of the five grounds.

The motivation for persecution may involve more than just one ground or factor. If at least one of the motives for persecution can be related to a Convention ground, the necessary link is established. What is referred to as “mixed motive doctrine” has been explained as follows:

 If one of the motivations of the agent of persecution is race but only in combination with another factor, how could that not be sufficient to meet the requirements of section 96 of the IRPA? After all, section 96 of the IRPA as written, is not to be interpreted in a narrow restrictive fashion: its purpose, as outlined, is to address fear of persecution and to protect any person who suffers from persecution based on race, religion, nationality, membership in a particular social group or political opinion.

In other words, the necessary nexus can be found when one (or more) of the Convention grounds is a contributing factor for persecution. For example, extortionists, whose motive is criminal, may target persons whose race, religion or imputed political opinions make them less likely to be able to access protection.

The relevant questions in analyzing s. 96 and s. 97 of IRPA are different. In particular, in Alhezma

the Court noted that the comparative analysis that may be done for s. 97 is not part of the analysis for persecution based on a Convention ground:

It is evident […] that the RPD, in its section 96 analysis, sought a degree of personal risk to the claimant which exceeded the risk to Palestinians in general. Such an approach is appropriate to a section 97 analysis. The question is not whether [the claimant] is more at risk than anyone else, but whether the persecution she would face upon returning to the West Bank is based upon a Convention ground, such that she merits refugee protection.

It is for the Refugee Protection Division to determine the ground, if any, applicable to the claimant’s fear of persecution

This is consistent with the overall obligation of the Refugee Division to determine whether the claimant is a Convention refugee. If a claimant identifies the ground(s) which he or she thinks are applicable to the claim, the Refugee Division is not limited to considering only those grounds and must consider the grounds of the definition as raised by the evidence in making their determination

However, once the Refugee Division has found that the claimant’s fear of persecution is by reason of one of the grounds it is not necessary to go on to consider all of the other grounds.

When determining the applicable grounds, the relevant consideration is the perception of the persecutor. The persecutor may perceive that the claimant is a member of a certain race, nationality, religion, or particular social group or holds a certain political opinion and the claimant may face a reasonable chance of persecution because of that perception. This perception may not conform to the real situation.

Reference should be made to the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution issued by the Chairperson pursuant to section 65(3) of the Immigration Act, updated November 25, 1996, as continued in effect on June 28, 2002 under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act for an analysis of the grounds as they relate to gender-related persecution.

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

4.2. Race

There is currently no Federal Court jurisprudence that provides a detailed analysis of this ground of persecution. Reference should be made to the UNHCR Handbook, at paragraphs 68 to 70, for a description of this ground. According to the Handbook, “race … has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as ‘races’ in the common usage." (paragraph 68)

The Court of Appeal has said that where race is one of the defining elements of a group to which the claimant belongs (and fears persecution on account of) then the ground of persecution is race. It is not necessary to look at other grounds.

It is an error for the Board not to consider the issue of whether a claimant has become a “soft target” for persecution at the hands of criminals because of police racism against the claimant’s group.

4.3. Nationality

This ground is discussed in the UNHCR Handbook at paragraphs 74 to 76. The Handbook points out that “nationality" in this case encompasses not only “citizenship" but it refers also to ethnic or linguistic groups.

 According to the Handbook this ground may overlap with race.

The Court in Hanukashvili, citing Lorne Waldman, noted the difference between nationality" as a ground and “nationality" meaning citizenship. When used as one of the five grounds, “nationality” does not mean the same thing as “citizenship”; however it has the same meaning as citizenship when used in the definition of “Convention refugee” under subsection 2(1) of the Immigration Act or section 96 of the Immigration and Refugee Protection Act.

4.4. Religion

Persecution by reason of a claimant’s religion may take many forms

Freedom of religion includes the right to manifest the religion in public, or private, in teaching, practice, worship and observance.

In the context of claims made by Chinese Christians, the Federal Court has rejected the proposition that a claimant’s religious needs can be met in a state sanctioned church. The RPD must assess a claimant’s reason for not wishing to attend a state sponsored church, namely that the state sanctioned church is beholden to government, whereas the underground church places God first. It is not up to the panel to determine how and where a claimant should practice his or her faith.

Religion itself can take different manifestations.

 As is the case with the other Convention refugee grounds, it is the perception of the persecutor that is relevant.

The Supreme Court of Canada, in the context of a Charter case involving freedom of religion, defined religion as follows:

Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

The Federal Court Trial Division in Kassatkine considered the case of a religion which has public proselytizing as one of its tenets. In this case, proselytizing was contrary to the law. The Court stated:

A law which requires a minority of citizens to breach the principles of their religion . . . is patently persecutory. One might add, so long as these religious tenets are not unreasonable as, for example, exacting human sacrifice or the taking of prohibited drugs as a sacrament.

There have been cases dealing with the issue of persecution of members of the Ahmadi religion in Pakistan and the application of Ordinance XX. A decision of the RAD on this topic has been identified as a Jurisprudential Guide (JG).^Note23 For a full discussion of the JG and the jurisprudence on the nature of the enforcement of Ordinance XX see Chapter 9, section 9.3.8.2.

The UNHCR Handbook can be referred to at paragraphs 71 to 73.

4.5. Particular social group

The Supreme Court of Canada in Ward provided an interpretative foundation for the meaning of the ground of “membership in a particular social group". Mr. Justice La Forest stated as follows:

The meaning assigned to “particular social group" in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative.

The Court further indicated that the tests proposed in Mayers,

Cheung, and Matter of Acosta  provided a “good working rule" to achieve the above-noted result and identified three possible categories of particular social groups that emerge from these tests:

Groups defined by an innate or unchangeable characteristic;

Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and

Groups associated by a former voluntary status, unalterable due to its historical permanence.^Note29

The Court went on to state:

The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation,^Note30 while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one’s past is an immutable part of the person.^Note31

In setting out three possible categories of particular social groups, the Court made it clear that not every group of persons will be within the Convention refugee definition. There are some groups from which the claimant can, and should be expected to, dissociate him- or herself because membership therein is not fundamental to the human dignity of the claimant.^Note32

A distinction must be drawn between a claimant who fears persecution because of what he or she does as an individual and a claimant who fears persecution because of his or her membership in a particular social group. It is the membership in the group which must be the cause of the persecution and not the individual activities of the claimant.^Note33 This is sometimes referred to as the “is versus does" distinction.

A particular social group cannot be defined solely by the fact that a group of persons are objects of persecution.^Note34 The rationale for this proposition is that the Convention refugee definition requires that the persecution be “by reason of" one of the grounds, including particular social group.

Subsequent to the Ward decision, the Court of Appeal in Chan

 interpreted the three possible categories of particular social groups. The majority of the Court, in concurring judgments, held that the terms “voluntary association" and “voluntary status" referred to in Ward categories two and three (above) refer to active or formal association. The dissenting judgment disagreed with this interpretation.

Chan was then heard by the Supreme Court of Canada ^Note37 and the majority of the Supreme Court concluded that the claimant had failed to present evidence on the objective element as to the well-foundedness of his fear of persecution (forced sterilization). ^Note38The majority did not address the issue of particular social group or whether there was an applicable ground in this case.

 The dissenting judgment by Mr. Justice La Forest, however, dealt extensively with the ground of particular social group. The minority’s comments on this issue carry considerable persuasive authority, inasmuch as they were not contradicted by the majority, and represent the views of a significant number of Supreme Court Justices. Mr. Justice La Forest (who wrote the judgment in Ward) clarified some of the issues which were raised in Ward:

The Ward decision enunciated a working rule and “not an unyielding deterministic approach to resolving whether a refugee claimant could be classified within a particular social group."^Note40 The paramount consideration in determining a particular social group is the “general underlying themes of the defence of human rights and anti-discrimination. ^Note41

The “is versus does" distinction was not intended to replace the Ward categories. There must be proper consideration of the context in which the claim arose.

With respect to category two of the Ward categories and the position taken by the Court of Appeal in Chan that this category required an active association between members of the group, Mr. Justice La Forest stated: “In order to avoid any confusion on this point let me state incontrovertibly that a refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar to him- or herself. 

The question that must be asked is whether the appellant is voluntarily associated with a particular status for reasons so fundamental to his human dignity that he should not be forced to forsake that association. That association or group exists by virtue of a common attempt made by its members to exercise a fundamental human right.

The particular group in which Mr. Chan alleged membership was “parents in China with more than one child who disagree with forced sterilization

Some examples of potential particular social groups discussed in the jurisprudence include the following:

The family 

Homosexuals (sexual orientation)

Trade unions 

The poor 

Wealthy persons or landlords were found by the Trial Division not to be particular social groups.

The Court focused on the fact that these groups were no longer being persecuted although they had been in the past.

Women subject to domestic abuse 

Men who become victims of abuse at the hands of former abusive partners of their spouse because of that relationship with their spouse 

Women forced into marriage without their consent 

Haitian returnees (citizens who return to Haiti after a stay abroad) were found not to constitute a particular social group within the meaning of section 96 of the Act.

Women subject to circumcision 

Persons subject to forced sterilization

Children of police officers who are anti-terrorist supporters; 

Former fellow municipal employees terrified and terrorized by what they know about the ruthless, criminal mayor 

Uneducated girls in a country where girls are not allowed to go to school 

Single women without male protection in some countries and circumstances

Law abiding citizens" was held not to be a particular social group 

Persons suffering from mental or physical illness

Abandoned children. 

4.6. Political opinion

A broad and general interpretation of political opinion is “any opinion on any matter in which the machinery of state  government, and policy may be engaged 

However, this does not mean that only political opinions regarding the state will be relevant. As noted in Chapter 3, there is no requirement that the agent of persecution be the state.

The Supreme Court of Canada in Ward stated that there are two refinements to political opinion within the context of the Convention refugee definition.

The first is that “the political opinion at issue need not have been expressed outright.  The Court recognized that the claimant may not always articulate his or her beliefs and that the political opinion will be perceived from the claimant’s actions or otherwise imputed to him or her. ^N

The second refinement in Ward is that the “political opinion ascribed to the claimant" by the persecutor “need not necessarily conform to the claimant’s true beliefs In other words, the political opinion may not be correctly attributed to the claimant.

The Supreme Court makes it clear that it is the perception of the persecutor which is relevant. The question to be answered is:  does the agent of persecution consider the claimant’s conduct to be political or does it attribute political activities to him or her?

In Zhou,  the Court found that the RPD erred when it seemed to say that political opinion can be assessed objectively (the RPD found that the claimant’s behavior, shouting insults at officials in the Family Planning Office, did not approach the level of political opinion necessary to warrant consideration). In the Court’s view, the relevant question is subjective: whether the relevant agent of persecution would view the claimant’s statements as political and persecute him on the basis.

The claimant does not have to belong to a political party nor does the claimant have to belong to a group that has an official title, office or status  nor does the claimant have to have a high-profile within a political party  in order for there to be a determination that the claimant’s fear of persecution is by reason of political opinion. The relevant issue is the persecutor’s perception of the group and its activities, or of the individual and his or her activities.^Note74

In Marino Gonzalez, a case where the Court held that the RPD applied an incorrect test to political opinion, the Court, reviewing the case law on the subject, reiterated the following principles (among others): an individual knowledge of or opposition to corruption may constitute political opinion; the meaning of “political opinion” is not confined to partisan opinion or membership in parties and movements and does not refer exclusively to national, political or municipal state politics; and refusal to participate in corruption may constitute the expression of a political opinion.

For a discussion of the ground of political opinion as it relates to laws of general application and, in particular, the dress code and military service (evasion/desertion) laws, see Chapter 9, sections 9.3.6 and 9.3.8.1.

In Colmenares, the Court held that a victim of politically motivated persecution is not required to abandon his commitment to political activism in order to live safely in his country.

In Makala, the Trial Division considered the applicability of paragraph 82 of the UNHCR Handbook, which states:

There may, however, also be situations in which the applicant has not given any expression to his opinions. Due to the strength of his convictions, however, it may be reasonable to assume that his opinions will sooner or later find expression and that the applicant will, as a result, come into conflict with the authorities. Where this can reasonably be assumed, the applicant can be considered to have fear of persecution for reason of political opinion.

The Court found that the CRDD’s erroneous finding that the claimant was not politically involved while in Congo may have affected its appreciation of the strength of the claimant’s political convictions and potential actions against the government upon return to Congo.

4.7. Victims of criminality and nexus to grounds

In a number of cases, the Trial Division has held that victims of crime, corruption  or vendettas, including blood feuds generally cannot establish a link between their fear of persecution and one of the five grounds in the definition. 

However, these cases must be read with caution in light of the Federal Court of Appeal decision in Klinko, where the Court answered in the affirmative the following certified question:

Does the making of a public complaint about widespread corrupt conduct by customs and police officials to a regional governing authority, and thereafter, the complainant suffering persecution on this account, when the corrupt conduct is not officially sanctioned, condoned or supported by the state, constitute an expression of political opinion as that term is understood in the definition of Convention refugee in subsection 2(1) of the Immigration Act?

The Court found that given the widespread government corruption in the Ukraine (“where the corrupt elements so permeate the government as to be part of its very fabric"), the claimant’s denunciation of the existing corruption constituted an expression of political opinion.

Although the opposition to corruption and criminality can, in the circumstances outlined in Klinko, be characterized as an expression of political opinion, the existence of a political opinion, and therefore nexus to a Convention ground, is fact-driven and must be determined on the basis of the evidence provided in each particular case.

In general, an opinion expressed in opposition to a criminal organization will not provide a nexus on the basis of political opinion unless the evidence shows the claimant’s opposition is rooted in political conviction. 

Similarly, opposition to corruption or criminality may constitute a perceived political opinion when it can be seen to challenge the state apparatus. 

A claimant’s exposure of corruption or opposition to crime will not generally place him or her in a particular social group. 

 A claimant who refuses to participate in crime as a matter of conscience is not a member of a political group. 

However, in some cases, the grounds of political opinion or particular social group can provide a nexus where the claimant fears persecution as a result of criminal activity. 

Persons who fear becoming targets of crime because they are perceived to have wealth have been found by the Federal Court not to be members of a particular social group. 

The Court reasoned that as a group, people who are perceived to be wealthy are not marginalized; rather they are more frequent targets of criminal activity.

The perception of wealth is insufficient to sustain the position that persons returning from abroad constitute a social group. It is clear from Ward that protection afforded under the Convention is intended to provide protection on the grounds of human rights and anti-discrimination considerations and not general criminality.

In Soimin,  a Haitian woman alleged a fear of rape based on her membership in a particular social group, “women in Haiti who may be targeted by criminals on the basis of her sex." The Court upheld the RPD finding that the violence feared by the claimant was a result of widespread generalized criminality in Haiti and not discriminatory targeting of women in particular. The harm feared was criminal in nature and had no nexus to the Convention refugee definition. However, more recently the Court arrived at a different conclusion in Dezameau ^Note89 and Josile, ^Note90 also claims made by Haitian women claiming a fear of persecution in the form of sexual violence. In these cases, the Court cited the principle in Ward that “gender" can provide the basis for a particular social group. The Court also cited jurisprudence from the Supreme Court of Canada in support of the proposition that rape and other forms of sexual assault are crimes grounded in the status of women in society. 

In Dezameau, the Court found that the error of the Board was to use its finding of a widespread risk of violence in Haitian society to rebut the assertion that there is a nexus between the applicant’s social group and the risk of rape. A finding of generality  does not prohibit a finding of persecution on the basis of one of the Convention grounds.

This is explicitly set out in the IRB’s Guideline 4

Based on a review of Canadian law and the documentary evidence, the Court in Josile concluded that the notion that rape is an act of violence faced generally by all Haitians is untenable; rather the risk of rape was grounded in the applicant’s membership in a particular social group, that of Haitian women.

In Mancia, the Court noted that a in a gender-based claim, a claimant’s burden is to satisfy the Board that she was targeted as a woman. “Stated differently, claimant needs to demonstrate that she would not have been attacked but for the fact that she was a woman.