Claiming Refugee Status Because of Illegal Departure from a Country

Some countries, such as Russia and Saudi Arabia, have a requirement that an individual obtain an exit visa (i.e. permit) to leave the country.  The Federal Court of Appeal decision in Valentin v Canada (Minister of Employment and Immigration), [1993] 3 FC 390 bars self-induced refugee status.  Valentin starts from the premise that a claimant has a valid exit visa.  It then bars the claimant from overstaying the visa and relying on that overstay as a ground of persecution.  Valentin has been cited in numerous Federal Court decisions. In Zandi v. Canada (Minister of Citizenship and Immigration), 2004 FC 311, a case involving an Iranian who defected to Canada during an athletic competition, the Federal Court stated:

To paraphrase the Federal Court of Appeal in Valentin, supra, a defector cannot gain legal status in Canada under IRPA by creating a “need for protection” under section 97 of IRPA by freely, of their own accord and with no reason, making themselves liable to punishment by violating a law of general application in their home country about complying with exit visas, i.e. returning.

Fortunately for would-be defectors, however, the analysis does not end there.  Subsequent jurisprudence has since ruled that it is necessary to determine the persecutory nature of the exit law, as well as extra-judicial punishment that may result.  In Castaneda v. Canada (Minister of Employment and Immigration) [1993] FCJ No 1090, a case involving a Cuban who defected, the Court noted that:

However, as I read the Valentin decision, the isolated nature of the sentence and the lack of direct relationship between the sentence and the offender’s political opinion were determinative factors in the minds of the Appeal justices. Here, the evidence of repercussions over and beyond the statutory sentence suggests an element of repetition and relentlessness in the manner in which the Cuban authorities treat the Applicant’s family as well as a direct link between the Applicant’s act of defiance and the treatment afforded to his family…

Applicant further argues that the evidence suggests that his family has been mistreated by the Cuban authorities as a result of his defection and that this constitutes extra-judicial punishment which should have been considered by the Board. Again an erroneous application of the Valentin decision is alleged.

I believe that this argument has merit. The evidence indicates that Applicant’s father who is ill may be assigned to do labour work in the fields. The job which he had held for thirty years is jeopardized. Applicant’s mother has been demoted. She is considered as an untrustworthy person as a result of her son’s defection.

The Board, in its otherwise well motivated decision, did not in any way refer to this evidence presumably because the members felt that the Valentin decision which dealt with a fear of imprisonment, usually the most severe repercussion arising from a breach of exit laws, was conclusive.

Hence, where applicable it is necessary to consider whether excessive or extra-judicial punishment for an illegal exit could constitute a reasonable basis for a well-founded fear of persecution (Donboli v. Canada (Minister of Citizenship and Immigration)), and the Refugee Protection Division has to determine whether the consequences of violating a country’s exit laws could be repetitive, persistent, or extreme such that it constitutes persecution: Coya v. Canada (Citizenship and Immigration).


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