Establishing that Someone is a Refugee

Meurrens LawRefugees

Section 96 of Canada’s Immigration and Refugee Protection Act (the “IRPA) defines a refugee as being a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries.  A refugee also includes though who do not have a country of nationality, but who are outside of their country of former habitual residence, and, because of the same fear, are unwilling to return to that country.

Refugee law is very complicated, and components of it are the subject of numerous blog posts on this website.

In this post, I hope to cover some of the major jurisprudence involving the interpretation of IRPA s. 96.

Past Persecution vs. A Future Fear

It is important to understand that refugees need to have a forward looking fear of returning to their country of origin.  The existence of past persecution will not create a rebuttal presumption that someone have a reasonable objective or subjective fear of persecution.

In Fernandopulle v. Canada (Minister of Citizenship and Immigration), 2005 FCA 91, the Federal Court of Appeal explicitly held that a person establishes a refugee claim by proving the existence of a well-founded fear of persecution for one of the reasons listed in section 96 of the IRPA and that proof of past persecution for one of the listed reasons may support a finding of fact that the claimant has a well-founded fear of persecution in the future, but it will not necessarily do so. If, for example, there is evidence that country conditions have changed since the persecution occurred, that evidence must be evaluated to determine whether the fear remains well founded.

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., “any opinion on any matter in which the machinery of state, government, and policy may be engaged”, reflects more care in embracing situations of this kind.

Here are some further things to note about political opinion:

  • Individual knowledge of or opposition to corruption may constitute political opinion. (Berrueta v. Canada, 1994).
  • Refusing to participate in corruption can constitute political opinion. (Vassiliev v. Canada, 1997)
  • The meaning of “political opinion” is not confined to partisan opinion or membership in parties and movements and does not refer exclusively to national, political, or municipal state politics (Reynoso v. Canada).
  • Non-membership in a political party is itself irrelevant.  It is the surrounding circumstances that matter. (Armson v. Canada, 1989)
  • The political opinion at issue need not have been expressed outright.  In many cases, the claimant may not be given the opportunity to articulate his or her beliefs, but the beliefs can be perceived by his or her actions. (Canada v. Ward, 1993)
  • The political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant’s true beliefs. The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution. (Canada v. Ward, 1993)


The Federal Court has affirmed in Yang v. Canada, 2012 FC 849 that there is no good faith requirement in refugee claims.

For example, refugee claimants from countries where apostasy is a crime (such as Iran) can credibly claim persecution based on the fact that they converted from Islam regardless of what their motivations for converting were.

Even where claimants convert for opportunistic reasons, they are still entitled to protection if they can establish a well-founded fear of persecution on a Convention ground.

The decision re-iterated the Ghasemian v Canada (Minister of Citizenship and Immigration), 2003 FC 1266 ruling which stated that:

Mrs. Ghasemian says that the Board also erred when it looked at her motive for conversion and applied the wrong test by rejecting her claim on the basis that it was not made in good faith i.e. she did not convert for a purely religious motive. She relies on the decision of the English Court of Appeal inDanian v. Secretary of State for the Home Department, [1999] E.W.J. No. 5459 online: QL.

In that case, the English Court of Appeal found that even though Mr. Danian’s “refugee sur place” claim was based on outspoken political opinions, allegedly made for the sole purpose of supporting his claim, the tribunal still had the obligation to determine whether he would face persecution if returned to his country of origin.

Although the decision in Danian, above, is not binding on this Court, I find its reasoning quite persuasive and agree that opportunistic claimants are still protected under the Convention if they can establish a genuine and well-founded fear of persecution for a Convention ground.

 I note, however, that in Danian, above, the Court also said that the fact that a claimant has manipulated his or her situation in order to make a refugee claim may still be relevant to the issue of credibility.

Obviously, this may have a significant impact on a claimant’s ability to establish the existence of a subjective fear of persecution if the only evidence in that respect is his or her testimony.