As the political situations in several Latin American countries worsens, there has been a steady increase in the number of refugee cases being decided on the issue of personalized vs. generalized risk.
Section 97(1)(b)(ii) of the Immigration and Refugee Protection Act states that a person in need of protection is a person in Canada whose removal to another country would subject them personally to a risk to their life or to a risk of cruel and unusual treatment or punishment if the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country.
The Federal Court has grappled with how to distinguish between personalized and generalized risk.
As noted in Prophète v Canada (Minister of Citizenship and Immigration), 2008 FC 331, the difficulty in analyzing personalized risk in situations of generalized human rights violations, civil war, and failed states lies in determining the dividing line between a risk that is “personalized” and one that is “general”. What, for example, is the risk to an individual who has been targeted in the past and who may be targeted in the future but whose risk situation is similar to a segment of the larger population? In Prophète, for example, Madam Justice Tremblay-Lamer, after much deliberation, determined that s. 97 can be interpreted to include a sub-group within the larger one that faces an even more acute risk.
Definition of Generliazed
Further complicating the issue is that there are varying definitions of what the word “generalized” means. In Osorio v Canada (Minister of Citizenship and Immigration), 2005 FC 1459,Read more ›
Last updated on April 17th, 2019
One of the biggest issues in immigration law is credibility.
When a tribunal finds a lack of credibility based on inferences there must be a basis in the evidence to support the tribunal’s inferences. It is not open to tribunal members to base their decision on assumptions and speculations for which there is no real evidentiary basis.
In Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39, the House of Lords (in a decision frequently cited by Canadian courts) noted that:
The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.
At the same time, as per the Federal Court of Canada decision in Giron v Canada (Minister of Employment and Immigration), credibility assessment is “the heartland of the discretion of triers of fact”, and in making its determination, the Immigration and Refugee Board is entitled to take into account the discrepancies, contradictions and omissions in the evidence and to view the evidence from the perspective of rationality and common sense.
Why Does Credibility Matter?
Credibility matters because a general finding of a lack of credibility on the part of an applicant may extend to all relevant evidence emanating from that individual’s testimony.
In the refugee context,Read more ›
Australia has “boat people” issues that far exceed Canada’s. According to The Economist, in 2010 134 boats carrying 6,535 refugee-claimants landed off the shores of Australia. The Australian government has introduced many policies to reduce those numbers, including the controversial detention of most sea-arrival refugee claimants on Christmas Island.
Another potential policy, which was recently struck down by the High Court of Australia, was to exchange certain refugee claimants with United Nations High Commissioner for Refugees recognized refugees in Malaysia. Under the arrangement, Australia would send 800 seaborne asylum-seekers to join tens-of-thousands of others currently queuing in Malaysia to have their refugee claims heard by the UNHCR. In return, Malaysia would be allowed to send 4,000 people who the UNHCR had recognized as being refugees, and who were awaiting resettlement in a third country, to Australia.
On August 31, 2011, the High Court of Australia held that the plan was invalid. The main reason was because Malaysia is not a signatory to the 1951 Refugee Convention, and is therefore not legally bound to provide the access and protections required by the convention.
Ignoring the issue of whether such a swapping proposal would be constitutional in Canada, I wonder what readers think of this approach to processing refugee claimants.
Suppose that Canada were to enter into a swapping agreement with a third-party country that was a signatory to the 1951 Refugee Convention.
Would you support a policy whereby Canada would transfer refugee claimants to the third party to be processed by the UNHCR, and in exchange the UNHCR would send 1-4 times that many people to Canada?Read more ›
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),  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)  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 ›
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 ›
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 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 ›
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 ›
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 ›
The Bill C-11 Regulations have been releasedRead 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 ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
- Business and Entrepreneur Immigrantion
- Citizenship Applications and Revocations
- Family Class (Spousal Sponsorships, Parents & Grandparents)
- Humanitarian and Compassionate
- Immigration and Refugee Board
- Immigration Consultants
- Immigration Trends
- Judicial Reviews
- Labour Market Impact Assessments
- Maintaining Permanent Residency
- Provincial Nominee Programs
- Skilled Immigration (Express Entry, CEC, FSWC, Etc.)
- Study Permits
- Tax and Trusts
- Temporary Resident Visas
- Work Permits