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REFUGEE PROTECTION IN CANADA (2)

REFUGEE PROTECTION IN CANADA (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 :

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REFUGEE PROTECTION IN CANADA (2)

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  1. 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 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 • 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 claimant’s 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)

  4. 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 one’s 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) Ward’s 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?

  6. 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

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