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.
» Read more about: Claiming Refugee Status Because of Illegal Departure from a Country »
Read more ›On August 15, 2011, Justice Shore released his decision in Oraminejad v. Canada (Citizenship and Immigration), 2011 FC 997. The decision did not involve a particularly complicated set of facts, nor did it expand upon existing areas of law.
However, the decision contains the following paragraph that I found to be quite compelling, and which reads as follows:
It is important to note that certain questions, asked of the Applicant, apply to the practice, rites and symbols (example: the crossing of a person) of Catholics but not of Protestants (except high Anglicans), again, depending on the actual denomination of Protestantism; such specialized knowledge may not be common knowledge; thus, it must often be sought in specialized documentation requested and not decided on that which a first-instance decision-maker thinks he knows on his own or on a whim! It could be a very costly whim in regard to the life and limb of an applicant who could be returned to his country of origin to a situation of peril. It is significant that throughout history and even modern history: e.g. Christians of various denominations, Jews, Moslems, Buddhists, Hindus and Bahais have been killed for their beliefs without necessarily even having had deep knowledge, or even any knowledge, of their religions, other than adherence to their faith. Many died for their faiths but, according to the annals of history, did not live according to their faiths; yet, that did not stop their slaughter. Therefore, it is important to view the evidence in this case such as provided by the specific church in question and additional evidence therefrom that was provided.
» Read more about: Justice Shore on Religious Persecution »
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I spent 6 months of law school studying in Budapest, Hungary. While I was there I lived on the border of what use to be old Jewish ghetto during World War II. I became fascinated with the history of the Jewish people in Budapest, and you can view some of my flickr photos of different Jewish related sites in Budapest here. Given this curiosity, it was with great interest that I read a recent Federal Court case involving an individual who claimed that he would face persecution if he had to go back to Hungary.
Ultimately, the case was dismissed partially due to a lack of evidence regarding whether the plight of Jews in Hungary was worsening.
Given my interest, I decided to have a look at what came up on Google News when I typed “Jews Hungary”.
The results were not particularly encouraging.
The Bankito Festival itself is a music and cultural extravaganza organized by a number of Jewish and non-Jewish NGOs, which is expected to attract hundreds of people from Hungary and further afield.
“There is a high level of intolerance and a lack of critical thinking in Hungary at the moment,” says Haver CEO Mircea Cernov. “The roots of this come from the schools and is deeply rooted throughout society. What we are trying to do is address the lack of debate on these issues.
“Radical voices are getting stronger in Hungary in the last few years,” Cernov says.
“There are concrete signs and cases of discrimination against people in the Roma community and the strengthening of hard anti-Semitic narratives.”
Anti-Jewish Tirades at Hungarian Newspaper Provoke Outrage
Anti-Jewish comments from the Hungarian daily Magyar Hirlap and the passage of a restrictive new media law in early July by Hungary’s conservative government have prompted sharp criticism from American and Austrian media outlets.
» Read more about: The Jews of Hungary »
Read more ›To examine core evidence in a case, piecemeal, each part out of context, not as part of an entirety, is as if a decision-maker examined a forest by looking at each tree and omitted to see the forest as a whole, thus missing the big picture. Where uncontradicted evidence, declared credible, is shredded, piecemeal, said evidence lacks understanding.
It is no different than dissecting a narrative, considered credible, to such a degree that it loses its overall cohesiveness and no part separately then resembles its origin as part of the whole. All of which leads to unreasonable conclusions.
So begins Justice Shore’s analysis in Warnakulasooriy v. Canada (Citizenship and Immigration), 2011 FC 830.
The case involved a refugee claimant from Sri Lanka. The Refugee Protection Division found the claimant to be credible. Specifically, the tribunal accepted that:
- In 1992 the claimant was attacked with a sword, causing damage to four of his fingers;
- In 1994, the Sri Lankan Freedom Party United Front’s supporters filed 11 false claims against the applicant;
- In 1997, the claimant was again arrested on false allegations;
- In 2003, the claimant was arrested and detained for 100 days, and only released on the condition that he report once a month. He was eventually acquitted;
- In 2008, the claimant began receiving anonymous threats; and
- In 2009, the claimant was told that if he worked on election day, he would be killed. Two shots were fired at him.
In determining that the claimant did not face persecution, Justice Shore found that the tribunal analyzed each incident piecemeal, instead of considering the cumulative effect of the alleged persecution as a whole.
The Court also found that the Tribunal erred when it found that the claimant would be able to obtain adequate state protection against the threats while at the same time noting that the degree of protection afforded was at the “whim of the government”.
» Read more about: Missing the Forest Through the Trees »
Read more ›The five grounds for claiming Convention refugee status on the basis of a well-founded fear of persecution are race, religion, nationality, membership in a particular social group and political opinion.
Political opinion is a broad concept that is not merely limited to belonging to a political party. Canada (Attorney General) v Ward (1993) is the leading Supreme Court of Canada case on the scope of political opinion. According to that decision, political opinion includes “any opinion on any matter in which the machinery of state, government, and policy may be engaged.” The Court stated:
Political opinion as a basis for a well-founded fear of persecution has been defined quite simply as persecution of persons on the ground “that they are alleged or known to hold opinions contrary to or critical of the policies of the government or ruling party”; see … [Atle Grahl-Madsen, The Status of Refugees in International Law (1966)] at p. 220. The persecution stems from the desire to put down any dissent viewed as a threat to the persecutors. Grahl-Madsen’s definition assumes that the persecutor from whom the claimant is fleeing is always the government or ruling party, or at least some party having parallel interests to those of the government. As noted earlier, however, international refugee protection extends to situations where the state is not an accomplice to the persecution, but is unable to protect the claimant. In such cases, it is possible that a claimant may be seen as a threat by a group unrelated, and perhaps even opposed, to the government because of his or her political viewpoint, perceived or real. The more general interpretation of political opinion suggested by Goodwin-Gill, [Guy S. The Refugee in International Law. Oxford: Clarendon Press, 1983] at p. 31, i.e.,
» Read more about: Political Opinion in the Refugee Context »
Read more ›The Bill C-11 Regulations have been released
Read more ›There are three types of refugee classes for refugees that are re-settled from abroad. These are the Convention Refugees Abroad Class, the Country of Asylum Class, and the Source Country Class. Minister Kenney has introduced regulatory changes to eliminate the Source Country Class.
Read more ›An area of refugee law that often frustrates refugee claimants is the requirement that they show that there was no reasonable internal flight alternative to claiming refugee status in Canada.
Read more ›Refugee practitioners colloquially refer to their clients as being either s. 96 or s. 97 Immigration and Refugee Protection Act (“IRPA”) refugees. Section 96 of IRPA provides that a person who is recognized by the Geneva Convention as being a convention refugee shall be conferred refugee protection. Section 97, meanwhile, provides that a person who is in need of protection shall also be afforded refugee protection in Canada.
Read more ›People appearing before the Immigration and Refugee Board come from all over the world, and often communicate in a language that their counsel, the hearings officers, and members do not understand. Accordingly, translators and interpreters are often used during IRB proceedings.
Translators and interpreters have a very serious and important role in proceedings.
Section 14 of the Charter of Rights and Freedoms provides that a party or witness to any proceeding who does not understand or speak the language in which the proceeding is conducted or who is deaf has the right to the assistance of an interpreter. This section applies to immigration and other administrative proceedings. (Umubyeyi v. Canada). Accordingly, the IRB and the courts take the right to proper interpretation seriously.
A person appearing before the IRB has a right to an interpretation that is continuous, precise, competent, impartial, and contemporaneous (Mohammadian). An applicant does not have the burden to show that a determinative prejudice arises from a breach of his Charter right to such interpretation.
In Xu v. Canada, the Federal Court noted:
As important as this right is, the burden on a person raising interpretation issues is significant. Such a claim must overcome the presumption that a translator, who has taken an oath to provide faithful translation, has acted in a manner contrary to the oath. Simply alleging mistranslation will not be sufficient – the burden is to show that on a balance of probabilities mistranslation occurred.
I speak Mandarin, Chinese. I remember observing a spousal-sponsorship appeal before the Immigration Appeal Division. The spouse’s lawyer, the hearings officer, and the member did not speak Mandarin. The only individuals in the room that understood Mandarin were myself,
» Read more about: Interpreters and Translations »
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