REFUGEE PROTECTION IN CANADA 2

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REFUGEE PROTECTION IN CANADA (2)
2
The nexus grounds of persecution

• Nationality citizenship ethnic group
• Race
• 1969 International Convention on the Elimination
  of All forms of Racial Discriminations race,
  color, descent or national or ethnic origin
  (art. 1)
• Religion
• established institutionalized religions any
  system of belief
• Syndicat Northcrest v. Amselem, 2004 2 S.C.R.
  551
• 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 individuals spiritual faith and
  integrally linked to ones 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
• Can devil worship constitute a religion? Ogboni
  cult from Nigeria
• Nosakhare v. Canada (Minister of Citizenship and
  Immigration), 2001 F.C.J. No. 1120
• Oloyede v. Canada (Minister of Citizenship and
  Immigration), 2001 F.C.J. No. 453

3
The nexus grounds of persecution (cont.)

• Political opinion
• Ward at 746
• any opinion on any matter in which the machinery
  of state, government, and policy may be engaged
• the political opinion at issue need not have
  been expressed outright
• political opinion ascribed to the claimant by
  the persecutor need not necessarily conform to
  the claimants true beliefs
• Femenia v. Canada, 1995 F.C.J. No. 1455 (T.D.)
• for a matter to be "engaged" in by the machinery
  of state, it must be "sanctioned by, condoned by
  or supported by" the state
• Klinko (FCA, 2000)
• 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? (para. 1)

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The nexus grounds of persecution (cont.)

• Political opinion and military service
• Al-Maisri v. Canada 1995 F.C. J. No. 642
• deserting the armed forces of ones own country
  because it is engaging in an illegal or unjust
  war can be persecution
• Hinzman (FC, 2006)
• the only issue of legality is whether an
  ordinary soldier is being expected to contravene
  humanitarian law, not whether the war itself is
  illegal

5
The nexus grounds of persecution (cont.)

• Membership in a particular social group
• Ward (SCC, 1993)
• Wards claim is that he is persecuted by the
  Irish National Liberation Army (INLA) for being a
  (former) member of the INLA
• social groups refers to the need to protect
  groups that have a social vulnerability due to
  their personal characteristics (what one is or
  what one does at a particular time 738-739)
• 3 types of particular social group
• immutable characteristics
• groups voluntarily associating for reasons going
  to human dignity, and so members should not be
  expected to dis-associate to avoid persecution
  or
• groups whose association in the past has created
  a near permanent identity for members.
• Two-step approach
• Does the claimant satisfy the requirement of
  membership in a particular social group?
• If so, is their fear of persecution for one of
  the five reasons?

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The nexus grounds of persecution (cont.)

• Membership in a particular social group (cont.)
• Chan v. Canada (SCC, 1995)
• Voluntary association -second category of
  particular social groups
• Tremendous import of Ward for several groups
• One complex social group family
• Gonzalez v. Canada (FCC, 2002)

7
State Protection and State Complicity

• Two scenarios
• State agent of persecution
• Persecution carried out by non-State actors
• If the state is not the agent of persecution,
  can the state protect the claimant from
  persecution?
• Unwilling Unable
• clear and convincing proof of inadequacy of
  state protection
• Absent a complete breakdown of the machinery of
  state, a state is presumed to be capable of
  providing protection to its nationals
• compelling evidence to overcome this presumption
  (Ward, 722 726)
• Adequate protection (Rajudeen Ward- 725)
• Internal Flight Alternative (IFA) doctrine
• Rasaratnam (FCA, 1992)
• Thirunavukkarasu (FCA, 1993)
• Two - part test for IFA
• no serious possibility of persecution in the part
  of the country in which an IFA exists and
• no undue hardship to claimant in moving to IFA