Chapter 10 - Exclusion clauses - Article 1E

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  1. 10.1. Introduction
  2. 10.2. Test
  3. 10.3. Nature of the residency rights
  4. 10.4. Rights and obligations of a national
  5. 10.5. Onus – Prima facie evidence
  6. 10.6. Onus to renew status
  7. 10.7. Access to obtain status substantially similar to nationals
  8. 10.8. Fear of persecution and state protection in the Article 1E country

10. Exclusion clauses - Article 1E

10.1. Introduction

According to section 98 of the Immigration and Refugee Protection Act (IRPA), a person who is excluded under Article 1E of the Refugee Convention is neither a Convention refugee nor a person in need of protection and cannot therefore be determined to be such a person in relation to any country.Footnote 1

Section E of Article 1 of the Convention provides as follows:

This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

For this ground of exclusion to apply, the person must have taken up residenceFootnote 2 in a country outside the country of his or her nationality and have been recognized as having the rights and obligations which are attached to the possession of nationality of that country. The provision is not limited to a consideration of those countries in which the claimant took up residence as a refugee.Footnote 3

Regarding the standard of proof applicable in Article 1E cases, in ZengFootnote 4, the Court of Appeal upheld an RPD finding, made on a balance of probabilities, that the respondents possessed status in Chile. That being said, when the Minister (or the evidence, if the Minister is not taking part in the proceedings) establishes a prima facie case that the claimant is excluded under Article 1E, the onus is on the claimant to refute this.Footnote 5 For more on this subject, see section 10.5 below.

The purpose of Article 1E is to protect the integrity of the systemFootnote 6 by excluding claimants who do not need protection,Footnote 7 among other things by preventing asylum shopping. As described by the Court of Appeal in the introduction to Zeng:

[1] This appeal concerns Section E of Article 1 (Article 1E) of the United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (the Convention) and more particularly, the issue of asylum shopping. Article 1E is an exclusion clause. It precludes the conferral of refugee protection if an individual has surrogate protection in a country where the individual enjoys substantially the same rights and obligations as nationals of that country. Asylum shopping refers to circumstances where an individual seeks protection in one country, from alleged persecution, torture, or cruel and unusual punishment in another country (the home country), while entitled to status in a “safe” country (the third country).

10.2. Test

It used to be that at a minimum, the claimant had to be able to return to (automatically or by application), and remain inFootnote 8 the putative Article 1E country before this provision could be invoked to exclude the claimant from protection under the Refugee Convention. However, this requirement is now qualified by the test set out by the Federal Court of Appeal in ZengFootnote 9.

In Zeng, the Court of Appeal set out the test to be applied in 1E determinations and clarified the law regarding the relevant date for determining status in the putative Article 1E country. The Court of Appeal answered the following certified questions in the affirmative:

Is it permissible for the Refugee Division to consider an individual's status in a third country upon arrival in Canada and thereafter, up until and including the date of the hearing before the Refugee Division in order to determine whether an individual should be excluded under Article 1E of the Refugee Convention?

Is it also permissible for the Refugee Division to consider what steps the individual took or did not take to cause or fail to prevent the loss of status in a third country in assessing whether Article 1E should apply?

The Court of Appeal reformulated the test to be applied to Article 1E determinations as follows:

[28] Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors.Footnote 10 These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts.Footnote 11

[29] It will be for the RPD to weigh the factors and arrive at a determination as to whether the exclusion will apply in the particular circumstances. [footnotes added - not part of original text]

The Court of Appeal in Zeng also stated:

[19] At the hearing of this appeal, the submissions of the parties evolved toward common ground. The Minister and the respondents agreed on a number of basic propositions, each of which I consider to be unassailable. Those propositions are:

  • the objectives set out in subsection 3(2) of the IRPA seek, among other things, to provide protection to those who require it and, at the same time, provide a fair and efficient program that maintains the integrity of the system;
  • the purpose of Article 1E is to exclude persons who do not need protection;
  • asylum shopping is incompatible with the surrogate dimension of international refugee protection;
  • Canada must respect its obligations under international law;
  • there may be circumstances where the loss of status in the third country is through no fault of a claimant in which case the claimant need not be excluded.

In Alsha’biFootnote 12, the Court found it was an error to apply the reasoning in Zeng to a determination about multiple countries of former habitual residence, in accordance with Thabet (CA). In this case, the claimants were stateless persons but had temporary status in the United Arab Emirates giving them the right to work, to attend school, etc. In response to the Minister’s argument that the claimants had deliberately allowed their status to expire and that Zeng should apply when the RPD is considering the loss of status in countries of former habitual residence, the Court found that Thabet, not Zeng, is the applicable case law. Unlike Zeng, Thabet simply requires that the tribunal ask why the claimant cannot return to the country of their former habitual residence. See Chapter 2.

Whether or not the exclusion would have applied if the claimants had had a permanent status equivalent to that of nationals is a question that was not addressed. Consequently, whether or not Article 1E applies to stateless claimants who have status in a third country that meets the Shamlou criteria is a question that has still not been dealt with in Canadian case law.

Moreover, the case law states that an exclusion under Article 1E does not apply in relation to a country of citizenship.Footnote 13

The question may arise as to whether the third prong of the Zeng test, involving a balancing of factors, requires a mandatory consideration of all the factors listed by the Federal Court of Appeal or whether the panel can limit itself to the relevant factors that determine the case. The Osazuwa decision supports the idea that if the second factor (the possibility of returning to the third country) is established, it may not be necessary to consider the third (the risk in the country of origin).Footnote 14 Other decisions appear to support similar approaches, sometimes with different configurations of factors.Footnote 15 This said, in Ahmad, the Court found the opposite and expressed the idea that the factors listed in Zeng were mandatory and had to be balanced.Footnote 16

In Majebi,Footnote 17 the Court of Appeal held that the RAD is required to consider the claimant’s status in the putative 1E country as of the time of the RPD hearing. Applying this principle in the context of judicial reviews of RAD decisions, the Federal Court has more than once held that the status in question must be assessed on the basis of the situation prevailing on the day of the hearing before the RPD, even if subsequent developments could lead to the loss of that status.Footnote 18

Lastly, Zeng does not invalidate the principles and mechanisms developed by previous case law, to the extent they are compatible. In practice, these will be integrated into the framework set out in Zeng. The sections below contain a discussion of these elements.

10.3. Nature of the residency rights

If the claimant’s status in the country where he or she has taken up residence is tentative, Article 1E does not apply. If the claimant has some sort of temporary status which must be renewed, and which may be cancelled,Footnote 19 or if the claimant’s status does not give the claimant the right to return, Article 1E may not be applicable.

In Murcia Romero,Footnote 20 the Court held that the RPD erred in finding that the claimants were excluded under Article 1E by virtue of their status in the United States. The principal claimant's permanent residence in the U.S. was "conditional" on the support of her estranged husband, which she stated was no longer forthcoming, and therefore she could not renew her residency card.

The Court took a rigorous approach to this issue in Choezom.Footnote 21 The claimant, who was born in India of Tibetan parents, was considered to be a citizen of China. As a Tibetan resident of India, she was issued a Registration Certificate (RC), which was renewed annually. When she travelled to the United States for the purposes of study and employment (she resided there from 1994 to 2003), she was issued an Identity Certificate (IC) by India, which she continued to renew periodically. The RPD determined that the claimant had a right of return to India, that Indian authorities would issue her a RC for Tibetans upon return to India, and that she would not be at risk of being deported to Tibet. The RPD took into account the fact that the claimant and her parents, who continued to reside in India, had no difficulties in returning to India after travelling abroad. The Court held that the RPD had erred in excluding the claimant under Article 1E. To return to reside in India, the claimant must obtain a NORI (No Objection to Return to India), a valid IC and a visa. The requirement for annual RCs, ICs, visas, NORIs and the prohibition to visit certain locations within India are all antithetical to the "basic rights of status as nationals". All of these rights are not permanent, and their renewal is at the discretion of the Indian government. The fact that there is no evidence that the Indian government has so far refused to issue RCs, ICs, visas or NORIs does not mean that it has given up the right to do so. Tibetan residents of India do not enjoy the same basic rights of status as Indian citizens enjoy.Footnote 22

The meaning of “withholding of removal status” in the United States has been considered in a number of cases. While the Court of Appeal in WangdenFootnote 23 has concluded that in the context of eligibility to make a claim under s. 101(1)(d) of IRPA, withholding of removal is equivalent to “being recognized as a Convention refugee”, thus rendering a person with that status ineligible to make a claim in Canada, there is case law distinguishing Wangden in the context of exclusion. In Molano FonnollFootnote 24, the Court held that the RPD had erred in concluding that withholding of removal status rendered the applicants excludable under Article 1E, as that status is not compatible with the rights and obligations which are attached to the possession of nationality.

Although it depends on the evidence on the record, and it is not an absolute rule, the status of permanent resident is a reference often recognized in the case law for its usefulness in determining whether the status under consideration in a particular case corresponds to the status described by the exclusion clause.Footnote 25

10.4. Rights and obligations of a national

It does not appear that, for Article 1E to apply, a person must have the rights that are identical in every respect to those of a national of the country where the person has taken residence.Footnote 26

In determining whether the claimant falls within the ambit of Article 1E, the Trial Division in KroonFootnote 27 endorsed a consideration of the basic rights to which the claimant is entitled under the constitution and the laws of the putative Article 1E country and a comparison of those with the rights acknowledged for that country's nationals. The Court stated:

Here, the tribunal … sought to assess whether the [claimant] would be recognized under the Estonian Constitution and its laws as having basic rights and obligations which attach to nationals of that country. It found, with some important exceptions, that was the case and that in certain key respects the [claimant] would enjoy, in Estonia, a status comparable to that of Estonian nationals and consistent with international conventions and treaties relating to rights and obligations of individuals. In particular, it found … that the [claimant] could be expected to be restored to his rights of residency in Estonia as a registered non-citizen, upon his return, that within a reasonable time he would be entitled to apply for citizenship and in the meantime had a right to remain there with rights similar to most of those enjoyed by citizens.

The Court found this approach to be reasonable and one supported by legal writers such as Grahl-Madsen and Hathaway.Footnote 28

The Court, in Shamlou,Footnote 29 accepted as "an accurate statement of the law" the following four criteria that the Board should follow in undertaking an analysis of the "basic rights" enjoyed by a claimant, as outlined by Lorne Waldman in Immigration Law and Practice:Footnote 30

  1. the right to return to the country of residence;
  2. the right to work freely without restrictions;
  3. the right to study, and
  4. full access to social services in the country of residence.

If the [claimant] has some sort of temporary status which must be renewed, and which could be cancelled, or if the [claimant] does not have the right to return to the country of residence,Footnote 31 clearly the [claimant] should not be excluded under Art. 1E.

The Court was satisfied the CRDD had come to a reasonable conclusion in determining that the claimant, an Iranian who had become a permanent resident of Mexico, enjoyed substantially the same rights as Mexican nationals. Although not entitled to vote, these rights included the ability to leave, re-enter and reside anywhere in the country, access to free health care, the right to purchase and own property, and the ability to seek, obtain and change employment.Footnote 32

It does not appear that determinations under Article 1E necessarily entail a rigid consideration of all of the criteria identified in the Shamlou case. In Hamdan,Footnote 33 the Trial Division stated as follows:

It is not necessary to comment on whether the criteria laid out in Shamlou must all be satisfied for exclusion under Article 1(E), or whether other criteria may be relevant in some cases. The relevant criteria will change depending on the rights which normally accrue to citizens in the country of residence subject to scrutiny.

In Juzbasevs,Footnote 34 the Court noted that the case law is not clear as to what factors need to be considered. It would appear that determinations under Article 1E do not necessarily involve a strict consideration of all factors regarding residency, as the analysis depends on the particular nature of the case at hand. International standards and practices may allow a state to limit government employment, political participation (such as the right to vote, the right to hold office), and some property rights to nationals. In Latvia, the country in question, certain professions were also closed to non-nationals, but this did not negate the application of Article 1E.

In Kamana,Footnote 35 the claimant had acquired refugee status in Burundi. The evidence indicated that refugee status in Burundi included the right not to be deported from that country. Except for the right to vote, he had the same rights as did Burundian citizens, namely, the right to education and to work. The Court therefore upheld the CRDD's decision that Article 1E applied.

In Ahmed,Footnote 36 the Court held that the RPD did not focus on the issue of whether the claimant had the rights and responsibilities of a national in the U.A.E. The right to work and the right to a health card are attributes of the rights of a national but they are not the sole rights to consider. The RPD failed to have before it clear evidence of the rights of U.A.E. nationals, as compared to the rights of the claimant, before it made its determination.

Recently, in relation to permanent residence in Brazil, the Court noted a body of case law upholding the RAD’s analysis with respect to the sufficiency of the rights and obligations granted to permanent residents.Footnote 37 Among other things, the fact that the permanent status is subject to certain conditions, such as a residency obligation or an obligation to not commit crimes, does not make it any less a status referred to in Article 1E.Footnote 38

In Fleurant,Footnote 39 the claimant was a permanent resident of Venezuela. In his opinion, it was insufficient to limit the analysis to the Shamlou criteria: “The [claimant] would have liked the situation in Venezuela at the time the RAD rendered its decision to have been part of the analysis. The situation in Venezuela is very difficult, such that it is alleged that the rights listed in Shamlou to establish equivalence between the rights enjoyed by nationals and residents who do not hold citizenship are not respected in practice.” The Court rejected this argument, stating that having, in practice, less access to the rights in question because of a generalized situation does not exempt a claimant from exclusion:

[18] . . . [T]he fact that there is a shortage of work or that social services have been reduced (which, in any case, was not proved) because of the problems the country is facing is not among the factors to be considered in the context of a refugee protection regime. The evidence shows that despite everything, when the RAD sought to establish whether the conditions of sections 96 and 97 could be met, it was forced to conclude that such was not the case. No persecution was demonstrated under section 96 (or even seriously alleged), or for that matter under section 97, which explicitly requires personal risk in order to benefit from it . . . .

In Trancil, the Court added, “The applicant argued that his right to work was made more difficult because of the unemployment in Brazil; however, the right to work does not consist of a right not to be exposed to unemployment, but rather of access to the labour market as a permanent resident.”Footnote 40

This interpretation appears to be consistent with the language of Article 1E, which provides that an excluded person is someone who is “recognized by the competent authorities” of the country of residence as having rights similar to those of citizens. In other words, difficulties in exercising a right associated with citizenship do not necessarily mean that the competent authorities of the country of residence do not recognize the resident in question as having that right.Footnote 41

Fleurant, cited above, is not the only case in which a claimant argued that they did not have the rights listed in Shamlou because of a situation (general or personal) in the country of residence.Footnote 42 When the argument refers to a persecutory cause, this can possibly have a conceptual and methodological impact on the analysis of the exclusion clause.Footnote 43

One consequence, in terms of methodology, is the question of whether the panel should consider the argument during the step when it examines whether, at the date of the hearing, the claimant held a status described in Article 1E, or instead during a subsequent step when it considers whether the claimant has a well-founded fear or would be subjected to a risk in the country of residence. The RAD’s Jurisprudential Guide, decision MB8-00025, proposes a discussion that is relevant to this issue, by identifying two analytical models: the first considers persecution allegations at the stage of determining the rights and obligations of the resident, and the second considers them at a subsequent stage. The Jurisprudential Guide specifies that the first is based on one possible conception (“It could be argued”), while the second is the approach traditionally followed by the RPD and the RAD.Footnote 44

The traditional approach therefore separates the analysis of resident status from the issue of whether the country of residence is “safe” for the claimant (see Zeng, para 1). Hence, one finds, following this model, one step of the analysis dealing with the issue of recognition by the competent authorities of the rights attached to citizenship, and a different step of the analysis looking at the alleged persecutory situation against which the country is not able to offer protection for example, but for reasons separate of its will to recognize the claimant in their status as a resident.

For a discussion on the evolution of the jurisprudence concerning the obligation to examine risk in the country described under Article 1E, see section 10.8.

10.5. Onus – Prima facie evidence

As indicated earlier, where there is prima facieFootnote 45 evidence of permanent residence status, the Courts have imposed an onus on the claimant to establish whether or not that status was lost. The onus shifts to the claimant, even if the evidence emanates from the claimant and whether or not the Minister intervenes.Footnote 46 The claimant must demonstrate this on a balance of probabilities.Footnote 47

Choubak illustrates one aspect of this dynamic, even if the mechanism described above is not explicitly discussed in the Court’s central reasoning. In Choubak,Footnote 48 the RPD considered the claimant’s assertion that, even though she had a German residency permit that was valid until December 2000, she had lost her permanent residenceresident status when she came to Canada on a student visa in September 1999, because she had intended to remain in Canada permanently in Canada. The RPD found that the claimant was not excluded under Article 1E as her permanent residence permit had lapsed under s. paragraph 44(1)2 of the German Aliens Act (viz. “(“leaves the country for a reason which is inherently other than temporary”). The Court held that it was unreasonable for the Board to hold that the meaning of the German law turns on the subjective desire of the claimant. The content of that provisionparagraph 44(1)2 requires proof by way of expert evidence of that foreign law. There was insufficient evidence to reasonably allow the Board to find that the competent authorities in Germany would have considered the claimant to no longer be a permanent resident at the time of her admission to Canada.

The following are some other examples of cases where the claimants did not meet the onus described at the beginning of this section. In ZengFootnote 49, the claimants (spouses) were found to have permanent resident status in Chile, even though they had left Chile with the intention of settling in China and had been outside Chile for more than a year at the time of their RPD hearing. In ParshottamFootnote 50, the claimant was found to have permanent resident status in the United States at the time of his PRRA assessment in December 2006, even though his green card had expired in June 2004. In LiFootnote 51, the claimant was found to have permanent residence in Argentina. She had acquired permanent resident status in 2003 with no expiry date. She was able to return to Argentina after an absence of almost two years and had made no inquiries as to whether she could re-enter Argentina after being in Canada. In MaiFootnote 52, the RPD determined that it was doubtful that the claimants, nationals of China, had lost their permanent resident status in Peru but even if they had, they could easily reacquire it without going back to China. In MohamedFootnote 53, the claimants made refugee claims in Sweden, left for Canada while their claims were still pending, and were granted permanent residence status in Sweden one month later. The Court upheld the CRDD’s exclusion finding. In NoelFootnote 54, the Court upheld the RAD’s conclusion that the following constituted prima facie evidence that the claimant was a permanent resident of Brazil: (i) the fact the claimant’s name appeared on a list of Haitians who had been granted permanent resident status; (ii) a stamp in his passport; and (iii) a national identity card from Brazil.Footnote 55 In Melo CastrillonFootnote 56, the Court noted that the documentation indicated that the claimant could lose her PR status after a 12-month absence from Italy. It was therefore reasonable for the RPD to conclude that if the loss of permanent resident status were automatic after 12 months, the claimant should have been able to obtain this confirmation fairly easily, which she did not do.

In AghaFootnote 57, the Court concluded that the claimant, an Iranian national, had not adduced any evidence showing that he no longer had status in the United States, aside from the suggestion that he might lose his status because of his extended absence since 1985 and the voluntary departure order he received in 1995 when he was there on his way to Canada. According to an INS official, loss of status due to an extended absence was not automatic and the claimant continued to be a permanent resident until a U.S. immigration judge determined otherwise.

The Court came to a different conclusion on loss of U.S. permanent residence in TajdiniFootnote 58. Based on the evidence before the RPD in that case, the Court found that a ruling by a U.S. immigration court on loss of residency was not required. The Court upheld the reasonableness of the RPD’s finding that the claimant had established, on a balance of probabilities, that she was no longer a permanent resident, having regard to factors considered by the U.S. authorities for abandonment of status, such as moving to another country intending to live there permanently, remaining outside the U.S. for one year without obtaining a re-entry permit or returning resident visa, and failing to file income tax returns while living abroad.

In Tajdini, the Court’s reasoning was based among other things on its analysis of US law. The Court concluded that the evidence showed a “very real probability” that the US authorities no longer recognized her status and right of return. The Court has since reaffirmed that a claimant’s demonstration cannot be based on speculation. In Obumuneme,Footnote 59 the Court found that:

[43] In my view, the RPD did not err in finding against the applicants on this question of fact. While the RIR provided evidence that they could have lost their status for the reasons they pointed to, the applicants did not adduce any evidence that this had actually happened. Especially considering the absence of evidence that the applicants had ever attempted to ascertain their current status in Italy, it was open to the RPD to conclude that they still enjoyed permanent resident status there. . . .

Similarly, in Desir,Footnote 60 the Court specified that:

[21] The Applicants submit that the RPD did not point to any evidence that permanent resident status could be re-acquired in Ms. Desir’s particular circumstances. However, the Applicants ignore the fact that the burden was on Ms. Desir to demonstrate to the RPD that she could not return to Chile. It is insufficient for claimants to offer speculative answers regarding their status in place of confirmation with third country authorities . . . .

Other decisions, including several recent ones, follow similar lines of reasoning.Footnote 61

Lastly, as mentioned above, the panel is required to analyze the claimant’s status in the country of residence based on the situation prevailing on the day of the hearing before the RPD.

10.6. Onus to renew s​tatus

The case of Shamlou,Footnote 62 as well as other decisions of the Federal Court, indicate that there is an onus on the claimant to renew their status in the putative Article 1E country. Moreover, recognition of permanent resident status can exist without the right of re-entry (where the person can apply for a re-entry visa).Footnote 63

In Shahpari,Footnote 64 the claimant, an Iranian citizen, moved to France in 1984. In 1991, she acquired permanent residence and was issued a carte de résident, valid until 2001. In 1993, she returned to Iran, but in 1994, came back to France, and two months later came to Canada. At her CRDD hearing in 1997, her exit/re-entry visa for France had expired, but the panel found that Article 1E applied because that visa could be renewed. The Trial Division held that: (1) the onus is on the Minister in Article 1E cases, but once prima facie evidence is adduced, the onus shifts to the claimant to demonstrate why, having destroyed her carte de résident, she could not apply for a new one; and (2) that the evidence before the panel reasonably allowed it to conclude that the visa could be renewed. Justice Rothstein also added:

[Claimants] should also remember that actions they themselves take which are intended to result in their not being able to return to a country which has already granted them Convention refugee status may well evidence an absence of the subjective fear of persecution in their original country from which they purport to be seeking refuge.

In summary, the Federal Court has held that, once there is prima facie evidence that Article 1E applies, the onus shifts to the claimant to demonstrate why:

  • their travel document cannot be renewed;Footnote 65
  • their (destroyed or lost) residency card cannot be re-issued;Footnote 66
  • a re-entry visa cannot be obtained;Footnote 67
  • their residency status cannot be renewed or recovered.Footnote 68

Once the onus has shifted, the claimant’s demonstration must be on a balance of probabilities.Footnote 69

10.7. Access to a status substantially similar to that of nationals

The second part of the Zeng test requires the member, in the case of claimant who does not have status at the date of the RPD hearing, to determine if the person previously had such status and lost it, or had access to such status and failed to acquire it. There is limited jurisprudence on this latter part of the test regarding access.

In TshiendelaFootnote 70, the RPD excluded the principal claimant under Article 1E because she had the opportunity to apply for permanent resident status in South Africa by virtue of the citizenship of her husband and children, but never did. She had been living in South Africa, having been granted refugee status, after which she obtained a “Relative Visa” when she married a South African citizen. They had children who were South African citizens.

The RPD found that the claimant had access to permanent residency through both her status as a spouse of a South African citizen and as mother of her South African children. That status would have been substantially similar to that of citizens. She simply failed to acquire that status because she chose not to apply for it. The RPD then assessed her allegations of persecution in South Africa, and found she had a viable IFA in Cape Town or Port Elizabeth.

The Court found the RPD correctly applied the principles from Zeng and Shamlou. The claimant had a valid Relative Visa at the time she made her refugee claim. Although it expired before the last day of the hearing, she expressly allowed it to expire, so that fact cannot avail to her benefit. This visa provided her the right to work, study, travel, and access to social services, which would have only been heightened had she sought permanent residency. In light of this, there existed prima facie evidence that Article 1E applied and the onus shifted to the claimant to show why she could not reapply for a visa to return to South Africa or why she would not be granted permanent residency if she applied. She did not do so. The finding that she had a viable IFA within South Africa was also reasonable.

10.8. Fear of persecution and state protection in the Article 1E country

At one point, the question was raised as to whether the Board could determine whether the claimant could argue the existence of a fear or risk in the country of residence under Article 1E. However, Article 1E does not explicitly mention any risk that must be considered.

This issue, and the others it raises, are addressed in this section.

In a number of decisions, which form a line of authority that seemed to have established itself over time, the Federal Court suggests and at times confirms that the RPD must determine whether the claimant has a well-founded fear of persecution for a Convention reason in the country of residence (or a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture in that country) and whether state protection is available to the claimant in that country.

The first case dealing explicitly with the matter was Kroon. In that case, Justice MacKay, in commenting on the purpose of Article 1E, seemed to suggest that if a claimant faced a threat of persecution in the putative Article 1E country, then that country would not be an Article 1E country:

In my view, the purpose of Article 1E is to support regular immigration laws of countries in the international community, and within the Immigration Act of this country to support the purposes of that Act and the policies it seeks to legislate, by limiting refugee claims to those who clearly face the threat of persecution. If A faces such a threat in his own country, but is living in another country, with or without refugee status, and there faces no threat of persecution for Convention reasons, or put another way, A enjoys the same rights of status as nationals of the second country, the function of Article 1E is to exclude that person as a potential refugee claimant in a third country.Footnote 71 (emphasis added)

In Choovak,Footnote 72 the Court held that the CRDD had erred in not turning its mind to the specific claim made by the claimant, an Iranian national, against Germany, where she was given asylum and had a special temporary residence status before coming to Canada. More recently, in Omar,Footnote 73 the Court held that the Board, before determining if the claimant should be excluded under Article 1E, was obliged to consider whether he would be at risk in South Africa, where he had been accepted as a refugee, including whether he could access adequate state protection.

In Zhao,Footnote 74 the Federal Court held that the RPD had properly assessed the availability of state protection from a criminal gang in Brazil, where the claimant, a Chinese national, had permanent residence status.

In Gao,Footnote 75 the claimants were Chinese citizens but had been permanent residents of Panama for 20 years. The Court agreed with the RPD that Article 1E applied to them and that with respect to their fear of harm in Panama, they had failed to rebut the presumption of state protection in that country.

In Omorogie,Footnote 76 the Court stated the following:

[61] Article 1E of the Convention arises when the claimant does not have a well-founded fear of persecution or a risk of harm under Article 97(1) in the Article 1E country.

Many recent decisions support this line of authority by either reiterating the principle or upholding the panel’s decision applying the principle.Footnote 77

In RomelusFootnote 78, the Court quashed a RAD decision because the RAD had stated that Article 1E applied, and then proceeded to examine the risk in the Article 1E country. The Court found this was an error, and stated that the analysis of the risk in the Article 1E country must be done before deciding if the person should be excluded under Article 1E.Footnote 79 However, in that decision, the Court commented on the case law supporting this principle, stating that the case law had not specified the basis for the principle.Footnote 80Romelus was followed by Jean,Footnote 81 in which the Court, in obiter, discussed whether it is necessary to examine a claimant’s fear in the country of residence in order to find that the claimant is excluded. In the Court’s opinion, if the answer to this question is yes, it would mean interpreting the legislation in a way that would require adding to the text of either the exclusion clause or the IRPA.

This was the beginning of a line of cases where, in some way, the former line started to be questioned. In Celestin,Footnote 82 the Court determined, under the first prong of the Zeng test (i.e., where the panel determines whether, on the day of the hearing before the RPD, the claimant has a status as described in Shamlou), that neither the RPD nor the RAD has jurisdiction to consider the issue of fear or risk in the country of residence, which the Court interpreted to be the jurisdiction of the PRRA officer. This reasoning was followed in Saint Paul,Footnote 83 in which the Court certified the following question, which was raised by the respondent to file a notice of appeal to the Federal Court of Appeal:Footnote 84

If the decision maker concludes that the claimant, a citizen of one country, has residence status in another country and that this status confers rights similar to those of citizens of that country (an affirmative answer to the first part of the Zeng test), should the decision maker take into account the fear or risk raised by the refugee protection claimant in respect of their country of residence before excluding the claimant by the combined effect of Article 1E of the United Nations Convention Relating to the Status of Refugees and section 98 of the Immigration and Refugee Protection Act?

In December 2020, the IRB Chairperson designated RAD decision MB8-00025 as a jurisprudential guide, stating that paragraphs 1 to 4 and 21 to 71 form the basis of the guide.Footnote 85 In these paragraphs, the RAD member explains her reasons for preferring the approach taken by the first line of cases, which involves the RPD and the RAD examining the risk raised in the country of residence before concluding that the claimant is excluded under Article 1E. At paragraph 27 of its decision, the RAD gives the following description of the broad trends in how the Federal Court has dealt with this issue since Celestin:

[27] In decisions rendered subsequent to Célestin, Saint Paul, and Constant, some Justices of the Federal Court have continued to implicitly accept that it is reasonable for the RAD and RPD to take into account the risk alleged by a claimant in respect of their country of residence before excluding them from refugee protection. Other Justices have explicitly declined to address the Célestin and Saint Paul decisions on the basis that these decisions had no impact on the conclusion in the case before them. The Justices in two cases found that, even if the RAD may not be required to take into account the risk raised by a claimant in their country of residence, it is not unreasonable to do so. Lastly, in a recent case, a Justice has expressly disagreed with the approach taken in Célestin and Saint Paul to find that the RAD is required to take into account any risk raised by the claimant in respect of their country of residence before finding them excluded from protection. [Footnotes omitted.]

On May 11, 2021, following a motion to the Federal Court of Appeal on the part of the appellant in Saint Paul (A-112-20) in order to obtain judgment pursuant to an agreement between the parties, who agreed that the certified question should be answered in the positive and that the RAD’s decision was reasonable, the Federal Court of Appeal set aside the Federal Court’s decision. In the circumstances, the Federal Court of Appeal did not answer the certified question.

It should be noted, in any event, that the question certified in Saint Paul did not relate to the third prong of the Zeng test. To the extent that it is considered that, under this prong of the test, the fear or risk in the country of residence should be analyzed before concluding that the claimant is excluded under Article 1E, the case law has yet to fully explore the issue of under which factor(s) it might be relevant to address it. Should it be under the first (the reason for the loss of status), the second (the possibility of returning to the third country), the fourth (Canada’s international obligations) or the last (any other relevant facts)? Or should this analysis instead be considered as a factor outside the frame of the third prong?

At this time, the Court has already upheld the reasoning of the RPD where, in considering the first factor (the reason for the loss of status), the panel held against claimants the deficiencies in their evidence relating to fear or risk in the country of residence or in their evidence relating to state protection.Footnote 86 That said, although they may be the same in many cases, the reasons for losing or failing to acquire a status in the past are not automatically the same as those that apply to a prospective risk analysis. Accordingly, while such reasons can dispose of the question posed under this first factor, there are cases where they may not be sufficient on their own to dispose of the question of whether there is a prospective fear or risk.

In addition, given that one of the purposes of Article 1E is to prevent asylum shopping, the question that arises is whether, apart from a situation where the loss of status is beyond the claimant’s control (e.g., legislative or policy changes withdrawing status from certain classes of individuals), the claimant’s reasons for leaving their country of residence or abandoning a status described in Shamlou must correspond to a cause for asylum (i.e., meet the threshold set out in sections 96 and 97 of the IRPA).Footnote 87 The Court’s comment in Xu can be interpreted as stating that it is not necessary to meet the threshold.Footnote 88 However, some decisions appear to suggest otherwise.Footnote 89

Lastly, among recent Federal Court decisions, a certain number have considered the difficulties alleged by claimants with respect to Brazil as a country of residence. Although these are questions that depend on the facts specific to each case, the Court has frequently upheld decisions finding that the difficulties in Brazil stemming from crime or discrimination were not such as to prevent the application of the exclusion clause.Footnote 90

Notes

Note 1

M.C.I. v. Sartaj, Asif (F.C., no. IMM-1998-05), O’Keefe, March 14, 2006; 2006 FC 324, where the Court found that the RPD erred in finding the claimant to be a Convention refugee with respect to Pakistan where it had already ruled that he was excluded under Article 1E with respect to Costa Rica. See also: Mwano v. Canada (Citizenship and Immigration), 2020 FC 792, para 21;Joseph, Joanne v. Canada (Citizenship and Immigration), 2020 FC 839, para 5.

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Note 2

In Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998, the claimant, a citizen of Sudan, was eligible for temporary resident status in Greece, a country where he had never resided, because of his marriage to a Greek national. The Court held that the CRDD erred in excluding the claimant under Article 1E on the ground that he should have sought asylum in Greece.

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Note 3

Kroon, Victor v. M.E.I. (F.C.T.D., no. IMM-3161-93), MacKay, January 6, 1995. The applicant urged the Court to find that “the exclusion provision under Article 1E should be strictly construed and should be confined to those cases where an applicant has moved from his or her own country of nationality to seek refugee status in another country where he or she then resides with essentially similar rights to those of nationals of the second country. It is urged the provision has no application in the circumstances of this case where the applicant, as a Russian national and a citizen of the U.S.S.R., was authorized to reside in Estonia when it was a state within the U.S.S.R., but it has since evolved to be an independent state in which the applicant has fewer rights than originally accorded to him as a resident.” The Court stated it was not persuaded that “the words of Article 1E should be so narrowly applied”.

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Note 4

M.C.I. v. Zeng, Guanqiu (F.C.A., no. A-275-09), Noël, Layden-Stevenson, Stratas, May 10, 2010; 2010 FCA 118. See also M.C.I. v. Tajdini, Sima (F.C., no. IMM-1270-06), Mactavish, March 1, 2007; 2007 FC 227.

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Note 5

In Lu, Yanping v. M.C.I. (F.C., no. IMM-5083-11), Phelan, March 15, 2012; 2012 FC 311, a case involving a Chinese national, the prima facie case was based on Chilean residency documents and confirmation from the Chilean consulate that he had permanent resident status in Chile.

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Note 6

Rrotaj v. Canada (Citizenship and Immigration), 2016 FC 152, [2016] 3 FCR 409, para 19 (appeal dismissed: Rrotaj v. Canada (Citizenship and Immigration), 2016 FCA 292); Tshiendela v. Canada (Citizenship and Immigration), 2019 FC 344, para 27.

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Note 7

Zeng, supra, note 4, para 19.

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Note 8

Mahdi, Roon Abdikarim v. M.C.I. (F.C.T.D., no. IMM-1600-94), Gibson, November 15, 1994. Reported: Mahdi v. Canada (Minister of Citizenship and Immigration) (1994), 26 Imm. L.R. (2d) 311 (F.C.T.D.), affirmed on appeal M.C.I. v. Mahdi, Roon Abdikarim (F.C.A., no. A-632-94), Pratte, MacGuigan, Robertson, December 1, 1995. Reported: Canada (Minister of Citizenship and Immigration) v. Mahdi (1995), 32 Imm. L.R. (2d) 1 (F.C.A.).

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Note 9

Zeng, supra, note 4.

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Note 10

For example, in Mojahed, Majid v. M.C.I. (F.C., no. IMM-7157-14), de Montigny, May 28, 2015; 2015 FC 690, the Court considered the case of an Iranian national who had voluntarily resigned his permanent resident status in Austria, by staying outside of the country for more than one year. The Court found that the RPD had reasonably considered and weighed the various relevant factors and upheld the finding of exclusion.

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Note 11

The test was applied in Hussein Ramadan, Hanan v. M.C.I. (F.C., no. IMM-1510-10), Tremblay-Lamer, November 5, 2010; 2010 FC 1093, with respect to a Lebanese claimant with permanent resident status in Paraguay. In Rrotaj, Gjon v. M.C.I. (F.C.A., no. A-79-16), Stratas, Webb, Woods, November 21, 2016; 2016 FCA 292, the Federal Court of Appeal was presented with the following certified question: “Does Article 1E of the Refugee Convention, as incorporated into IRPA, apply if a claimant’s third country residency status (including the right to return) is subject to revocation at the discretion of that country’s authorities?”  The Court rejected the appeal on the basis that the certified question was not proper and that Zeng had already answered the question to the extent it can be answered. In Su, Canxiong v. Canada (Citizenship and Immigration), 2019 FC 75, Boswell, January 18, 2019; 2019 FC 75 the Court upheld an RPD decision wherein the claimants were excluded under Article 1E despite the fact their permanent resident status in Peru had elapsed. The RPD considered that they had allowed their status to lapse voluntarily and they were not genuine Falun Gong practitioners; therefore, they would not be at risk in their country of nationality, China.

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Note 12

M.C.I. v. Alsha’bi, Hanan (F.C., no. IMM-2032-15), Strickland, December 14, 2015; 2015 FC 1381. The Court noted:

[81] Thus, in effect, what the Minister seeks is to broaden Article 1E to exclude persons whose status is less than that of a national. However, in my view, because of the difference in status, the principles guiding exclusion under Article 1E have questionable import in the test in Thabet, where the question is focused only on whether the stateless claimant has a right of return to a safe country of former habitual residence.

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Note 13

Xu v. Canada (Citizenship and Immigration), 2019 FC 639, para 36. The Court has also confirmed, in the context of the first prong of the Zeng test, that once the exclusion is found to apply, a claimant’s situation in the citizenship country does not need to be evaluated since an excluded claimant cannot be found to be a refugee or a person in need of protection:  Augustin v. Canada (Citizenship and Immigration), 2019 FC 1232, para 34;Milfort-Laguere v. Canada (Citizenship and Immigration), 2019 FC 1361, para 46.

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Note 14

Osazuwa v. Canada (Citizenship and Immigration), 2016 FC 155. In this decision, the Court refers to other factors, but para 51 directly discusses the impact of the second factor on the assessment.

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Note 15

Su, Canxiong v. Canada (Citizenship and Immigration), 2019 FC 75, refers to the first and third factors (paras 29–30). In Tshiendela v. Canada (Citizenship and Immigration), 2019 FC 344, the Court appears to highlight the second factor (see para 37), but also refers to the first one (see para 29). Su, Qiling v. Canada (Citizenship and Immigration), 2019 FC 1052, refers to the first and second factors (paras 11-13, 25). (In this case, the RPD had conducted an alternative analysis of the risk in the country of citizenship as part of an inclusion analysis after declaring the exclusion.)

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Note 16

Ahmad v. Canada (Citizenship and Immigration), 2021 FC 214, paras 37-41.

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Note 17

Majebi, Henry v. M.C.I. (F.C.A., no. A-52-16), Dawson, Near, Woods, November 9, 2016; 2016 FCA 274. Leave to appeal dismissed by the Supreme Court of Canada on June 1, 2017 (Court docket no. 37437).

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Note 18

See for example: Tresalus v. Canada (Citizenship and Immigration), 2019 FC 173, para 6;Augustin v. Canada (Citizenship and Immigration), 2019 FC 1232, para 29;Occean v. Canada (Immigration, Refugees and Citizenship), 2019 FC 1234, para 34; Milfort-Laguere v. Canada (Citizenship and Immigration), 2019 FC 1361, paras 41-44;Jean-Pierre v. Canada (Citizenship and Immigration), 2020 FC 136, paras 21-25; Joseph, Joanne v. Canada (Citizenship and Immigration), 2020 FC 839,  para 5. It should be noted that some of the cases cited above state, essentially on the basis of what the Federal Court of Appeal had found to be reasonable at paragraph 7 of Majebi, that the situation must be assessed at the end of the hearing (or on the last day of the hearing) before the RPD. Other decisions have followed a similar model; see for example: Joseph, Miguel v. Canada (Citizenship and Immigration), 2020 FC 412 , para 48; Mwano v. Canada (Citizenship and Immigration), 2020 FC 792, para 16. Finally, it should also be noted that in Abel v. Canada (Citizenship and Immigration), 2020 FC 525 , the Court followed the principle but nonetheless certified the following question, which was appealed to the Federal Court of Appeal (Abel c. Canada (Citoyenneté et Immigration), 2021 CAF 131) but the appeal was ultimately dismissed for mootness:

For the purposes of the application of Majebi v Canada (Citizenship and Immigration), 2016 FCA 274, must the RAD first determine whether there is, and, if so, consider the probative value of, evidence that a person is not considered by the competent authorities of the country in which that person has taken residence to have the rights and obligations attached to the possession of the nationality of that country that arose after the date of the RPD hearing, by which the RPD had found that the individual in question was not a refugee by application of Article 1E of the Convention and section 98 of the IRPA because of that “residency status”.

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Note 19

In M.C.I. v. Mohamud, Layla Ali (F.C.T.D., no. IMM-4899-94), Rothstein, May 19, 1995, the Court noted that the permit given to the Somali claimant by the Italian authorities, which was renewable annually, “does not give her rights analogous to Italian nationals. While the [claimant] had many rights, such as the right to work and travel in, and leave and return to Italy, she did not have the right to remain in Italy once the war was over and conditions [in Somalia] returned to normal.” While Justice Rothstein was “not prepared to say that section E of Article 1 of the Convention means that a person … must have rights that are identical in every respect to those of a national,” it did, in his view, “mean that an important right such as the right to remain (in the absence of unusual circumstances such as a criminal conviction) must be afforded.” In Kanesharan, Vijeyaratnam v. M.C.I. (F.C.T.D., no. IMM-269-96), Heald, September 23, 1996.  Reported: Kanesharan v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 185 (F.C.T.D.), although the Sri Lankan claimant had been given extended permission to remain in the United Kingdom, the Court found that the CRDD erred in excluding him because the UK Home Office reserved the right to remove persons to their country of nationality “should the prevailing circumstances change significantly in a positive manner,” and their eligibility to remain in the UK indefinitely after seven years was not a certainty. The “tentative and conditional language” used by the Home Office did not entitle the CRDD to conclude as it did. See also Hurt v. Canada (Minister of Manpower and Immigration), [1978] 2 F.C. 340 (C.A.), at 343, where the claimant, a Polish national, was advised by the German authorities that his temporary visa, which was soon due to expire, would not be renewed and that he would be deported. Lastly, see Canada (Citizenship and Immigration) v. Abushefeh, 2018 FC 1288, in which the Court held that the RPD did not breach procedural fairness by failing to notify the Minister of a possible exclusion under subrule 26(1) of the RPD Rules. In this case, the claimants had a refugee claimant status in the United States that was only valid for one year, and the file contained no information that would lead the RPD to conclude that an exclusion was possible.

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Note 20

Murcia Romero, Ingrid Yulima v. M.C.I. (F.C., no. IMM-3370-05), Snider, April 21, 2006; 2006 FC 506.

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Note 21

Choezom, Tendzin v. M.C.I. (F.C., no. IMM-1420-04), von Finckenstein, September 30, 2004; 2004 FC 1329.

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Note 22

The situation of claimants with connections to China, Tibet and India has been considered in the context of country of reference (rather than a possible 1E country) with India being considered either a putative country of citizenship or a country of former habitual residence. See more on this in Chapter 2.

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Note 23

Wangden, Tenzin v. M.C.I. (F.C.A. no., A-607-08), Evans, Sharlow, Ryer, November 23, 2009; 2009 FCA 344.

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Note 24

Molano Fonnoll, German Guillermo v. M.C.I. (F.C., no. IMM-2626-11), Scott, December 12, 2011; 2011 FC 1461. In a different context than “withholding of removal” the Court rejected the applicant’s argument based on issue estoppel that in a case where the Minister finds a person to be eligible to make a claim, the RPD is bound by that finding and cannot exclude the person. See Omar, Weli Abdikadir v. M.C.I. (F.C. no., IMM-4929-16), Mactavish, May 8, 2017; 2017 FC 458.

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Note 25

Tshiendela v. Canada (Citizenship and Immigration), 2019 FC 344, para 30.

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Note 26

For example, in Osazuwa, Steven v. M.C.I. (F.C., no. IMM-846-15), Russell, February 8, 2016; 2016 FC 155Osazuwa v. Canada (Citizenship and Immigration), 2016 FC 155, the Court noted that the RAD had concurred with the RPD that there is no requirement for benefits to be identical to those of nationals in order to engage Article 1E; they only need to be “substantially similar”.

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Note 27

Kroon, supra, footnotenote 3, at 167.

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Note 28

Kroon, supra, note 3, at 168.  See Atle Grahl-Madsen, The Status of Refugees in International Law, (Leyden: A W. Sijthoff, 1966), Volume 1, pages 269-270 [out of print], and James C. Hathaway, The Law of Refugee Status, (Toronto: Butterworths, 1991), pages 211-214. The discussion of this aspect of Article 1E exclusion in the second edition of James C. Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2014) is found at pages 500-509.

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Note 29

Shamlou, supra, footnote 30,, Pasha v. M.C.I. (F.C.T.D, no. IMM-4967-94), Teitelbaum, November 15, 1995.  Reported: Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.), at 152..

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Note 30

(Toronto: Butterworths, 1992),, vol. 1, §paragraphs 8.218 at, 8.204- and 8.205 (Issue 17/2/97).

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Note 31

It should be noted, with regard to the right to return to the country of residence, that given the present state of the law, there are situations in which a claimant could be excluded despite the impossibility of returning to the country of residence. See sections 10.2 and 10.6.

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Note 32

Shamlou, supra, footnote 30 note 29.

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Note 33

Hamdan, Kadhom Abdul Hu v. M.C.I. (F.C.T.D., no. IMM-1346-96), Jerome, March 27, 1997. Reported: Hamdan v. Canada (Minister of Citizenship and Immigration) (1997), 38 Imm. L.R. (2d) 20 (F.C.T.D.), at 23. In this case, the Court found it critical that the claimant could neither work nor access social services in the Philippines.

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Note 34

Juzbasevs, supra, footnote 32, Rafaels v. M.C.I. (F.C.T.D., no. IMM-3415-00), McKeown, March 30, 2001.

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Note 35

Kamana, supra, footnote 32, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999.

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Note 36

Ahmed, Nadeem Imtiaz v. M.C.I. (F.C., no. IMM-626-07), Phelan, February 15, 2008; 2008 FC 195.

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Note 37

Jean-Pierre v. Canada (Citizenship and Immigration), 2020 FC 136, paras 27-28.

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Note 38

Feliznor v. Canada (Citizenship and Immigration), 2020 FC 597, para 18.

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Note 39

Fleurant v. Canada (Citizenship and Immigration), 2019 FC 754.

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Note 40

Trancil v. Canada (Citizenship and Immigration), 2020 FC 44, para 9.

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Note 41

See on this point X (Re), 2018 CanLII 48754 (decision no. MB7-22589, identified as RAD Reasons of Interest), which develops this concept at paras 29 to 34.

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Note 42

See for example: Jean-Pierre v. Canada (Citizenship and Immigration), 2020 FC 136, para 30; Riboul v. Canada (Citizenship and Immigration), 2020 FC 263, paras 27, 32; Feliznor v. Canada (Citizenship and Immigration), 2020 FC 597, paras 17 to 18; Joseph, Jean Julien v. Canada (Citizenship and Immigration), 2020 FC 735, paras 9-11.

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Note 43

That being said, the cases cited above do not appear to have given rise to any direct discussion on the subject of the methodological impact of the argument and the applicable analytical framework.

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Note 44

X (Re), 2020 CanLII 101305, paras 34-35. See also X (Re), 2018 CanLII 48754 (decision no. MB7-22589, identified as RAD Reasons of Interest), para 34.

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Note 45

For example, in Lu, Yanping v. M.C.I. (F.C., no. IMM-5083-11), Phelan, March 15, 2012; 2012 FC 311, a case involving a Chinese national, the prima facie evidence was based on documents pertaining to residency status in Chile and confirmation from the Chilean consulate that he had permanent resident status in Chile.

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Note 46

In Obumuneme, Chinenye Evelyn v. M.C.I. (F.C., no. IMM-995-18), Norris, January 16, 2019; 2019 FC 59 the claimant produced a copy of the resident permit “permesso di soggiorno” from Italy which stated on its face that it was of indefinite validity. The Minister did not intervene in the claim. The Court rejected the argument that the onus only shifts if the Minister has intervened and led evidence regarding the application of Article 1E.

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Note 47

Desir v. Canada (Citizenship and Immigration), 2019 FC 1164, para 16. See also Andreus v. Canada (Citizenship and Immigration), 2020 FC 131, para 39.

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Note 48

M.C.I.v. Choubak (a.k.a. Choovak), Mehrnaz Joline (F.C., No. IMM-3462-05), Blanchard, April 26, 2006; 2006 FC 521.

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Note 49

Zeng, supra, note 4.

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Note 50

Parshottam, Karim Badrudin v. M.C.I. (F.C.A., no. A-73-08), Evans, Ryer, Sharlow (concurring in result), November 14, 2008; 2008 FCA 355.  Reported: Parshottam v. Canada (Minister of Citizenship and Immigration, [2009] 3 F.C.R. 527 (F.C.A.).  Affirming Parshottam, Karim Badrudin v. M.C.I. (F.C., no. IMM-192-07), Mosley, January 15, 2008; 2008 FC 51.

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Note 51

Li, Hong Lian v. M.C.I. (F.C., no. IMM-585-09), Mandamin, August 24, 2009; 2009 FC 841.

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Note 52

Mai, Jian v. M.C.I. (F.C., no. IMM-1155-09), Lemieux, February 22, 2010; 2010 FC 192.

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Note 53

Mohamed, Hibo Farah v. M.C.I. (F.C.T.D., no. IMM-2248-96), Rothstein, April 7, 1997. Although the Swedish permanent residence certificate had to be periodically renewed, there was no evidence that permanent residence in Sweden was subject to some form of arbitrary cancellation.

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Note 54

Noel, Oriol v. M.C.I. (F.C. no. IMM-1795-18), Gagné, October 23, 2018; 2018 FC 1062. Also see X (Re), 2018 CanLII 131735 (RAD MB8-01495), Roberts, November 27, 2018 wherein the RAD found that the fact the appellants’ names appear in the joint ministerial act from the ministry of justice and the ministry of labour and social security is prima facie evidence of permanent residence status in Brazil.

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Note 55

In Jean-Baptiste v. Canada (Citizenship and Immigration), 2019 FC 1612, the Federal Court determined that (i) the presence of the male claimant’s name on the list, (ii) the statistic indicating that 71% of the individuals on the list had completed the administrative process to obtain permanent residence, (iii) the fact that the female claimant had stayed in Brazil for over three and a half years, and (iv) the evidence that Brazil offers its residents the rights and obligations associated with citizenship, were sufficient to constitute prima facie evidence of the male claimant’s status in Brazil. In Milfort-Laguere v. Canada (Citizenship and Immigration), 2019 FC 1361, the first element (the presence of the female claimant’s name on the list) alone was sufficient to constitute prima facie evidence. It should be noted that in the RAD’s decision, this element was combined with the above statistic of 71%.

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Note 56

Melo Castrillon, Ruby Amparo v. M.C.I. (F.C. no. IMM-1617-17), Roy, May 1, 2018; 2018 FC 470.

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Note 57

Agha, Sharam Pahlevan Mir v. M.C.I. (F.C.T.D., no. IMM-4282-99), Nadon, January 12, 2001.

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Note 58

M.C.I. v. Tajdini, Sima (F.C., no. IMM-1270-06), Mactavish, March 1, 2007; 2007 FC 227. The Court upheld the RPD’s conclusion that the claimant was not asylum shopping.  She did not voluntarily renounce her status in order to seek asylum elsewhere. She had left the U.S. in 1996, returning to her native Iran, and travelled to Canada in 2004 to escape from problems that occurred in Iran several years after her return there.

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Note 59

Obumuneme v. Canada (Citizenship and Immigration), 2019 FC 59.

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Note 60

Desir v. Canada (Citizenship and Immigration), 2019 FC 1164. See also Tshiendela v. Canada (Citizenship and Immigration), 2019 FC 344, paras 35-36.

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Note 61

Wasel v. Canada (Citizenship and Immigration), 2015 FC 1409, paras 20-21; Tshiendela v. Canada (Citizenship and Immigration), 2019 FC 344, paras 35-36; Saint-Fleur v. Canada (Citizenship and Immigration), 2020 FC 407, paras 22-23 (regarding the lack of a Brazilian exit stamp for the evaluation of the period of absence from that country); Sharifi v. Canada (Citizenship and Immigration), 2020 FC 556, paras 22-25 (regarding a status that was not automatically revoked after a 12-month absence from Italy but was, rather, subject to discretion); Ifogah v. Canada (Citizenship and Immigration), 2020 FC 1139, paras 55-56 (regarding a status that was not automatically revoked after an absence from South Africa but that could, rather, be withdrawn).

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Note 62

Shamlou, supra, note 29. In that case, the claimant, a citizen of Iran, had lived in Mexico for an extended period and obtained a travel and identity document which allowed him to leave and re-enter Mexico. The claimant allowed his Mexican travel documents to lapse when he unsuccessfully sought residence in the U.S.A. before coming to Canada.

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Note 63

Nepete, Firmino Domingos v. M.C.I. (F.C.T.D., no. IMM-4471-99), Heneghan, October 11, 2000.

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Note 64

Shahpari, Khadijeh v. M.C.I. (F.C.T.D., no. IMM-2327-97), Rothstein, April 3, 1998. Reported: Shahpari v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 139 (F.C.T.D.). This case was applied in Kamana, supra, note 35; Nepete, supra, note 63; Juzbasevs, Rafaels v. M.C.I. (F.C.T.D., no. IMM-3415-00), McKeown, March 30, 2001; 2001 FCT 262; M.C.I. v. Choovak, Mehrnaz (F.C.T.D., no.IMM-3080-01), Rouleau, May 17, 2002; 2002 FCT 573, Hassanzadeh, Baharack v. M.C.I. (F.C., no. IMM-3545-03), Blais, December 18, 2003; 2003 FC 1494, and Chen, Xiangju v. M.C.I. (F.C. no. IMM-5636-17), Barnes, July 19, 2018; 2018 FC 756 in which the Court rejected the argument that the claimant was prevented from reapplying for permanent resident status in Venezuela because Canadian authorities had seized his Chinese passport. The Court held that there was no evidence that he had requested it. Only if such a request was refused could an argument be advanced that Canada had wrongfully frustrated his good intentions.

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Note 65

Shamlou, supra, note 29.

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Note 66

Shahpari, supra, note 64.

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Note 67

Shahpari, supra, note 64; Nepete, supra, note 63.

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Note 68

Kamana, supra, note 35; Hassanzadeh, supra, note 64; Chen, supra, note 64; Canada (Minister of Citizenship and Immigration) v. Choovak, 2002 FCT 573, 220 FTR 127 — 21 Imm LR (3d) 184 — [2002] FCJ no. 767 (QL); Su, Qiling v. Canada (Citizenship and Immigration), 2019 FC 1052; Desir v. Canada (Citizenship and Immigration), 2019 FC 1164.

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Note 69

Desir v. Canada (Citizenship and Immigration), 2019 FC 1164, para 16.

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Note 70

Tshiendela, Nelly Nsekele v. M.C.I. (F.C. no. IMM-3141-18), Bell, March 21, 2019; 2019 FC 344.

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Note 71

Kroon, supra, note 3, at 167-168. See also Shamlou, supra, note 29, at 142, where the Court notes that both the CRDD, in its reasons, and the respondent, in his arguments, referred to the lack of persecution in Mexico (the Article 1E country) as one of the factors taken into consideration in concluding that the claimant enjoyed most of the rights and obligations of a national in that country. The Court itself does not list this factor in its conclusions. In Olschewski, Alexander Nadirovich v. M.E.I. (F.C.T.D., no. A-1424-92), McGillis, October 20, 1993, the Court implicitly agreed that the CRDD could in fact assess a claim against the Article 1E country. As the Court put it, “…even if I am wrong in concluding that the Article does not apply, I am nevertheless of the opinion that the Board erred in the articulation of its reasons in support of its conclusion that the [claimants] failed to establish a well-founded fear of persecution in Ukraine on the basis of religion.

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Note 72

M.C.I. v. Choovak, supra, note 64. See also Nepete, supra, note 63, where the Court upheld the CRDD’s finding that the claimant, an Angolan national, did not establish a well-founded fear of persecution in his country of residence (the Czech Republic). A similar approach was taken by the Court in Juzbasevs, supra, note 34, and Nwaeze, Jones Ernest Am v. M.C.I. (F.C., no. IMM-1112-09), Tremblay-Lamer, November 10, 2009; 2009 FC 1151.

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Note 73

Omar, supra, note 24.

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Note 74

Zhao, Ri Wang v. M.C.I. (F.C., no IMM-9624-03), Blanchard, August 4, 2004; 2004 FC 1059. See also the following cases where the Court upheld the RPD’s determination of the availability state protection in Article 1E countries: Li, supra, note 51; Mai, supra, note 52; Ramadan, supra, note 11; and Dieng, Khady Kanghe et al. v. M.C.I. (FC., no. IMM-5029-12), de Montigny, April 30, 2013; 2013 FC 450.

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Note 75

Gao, Kun Kwan. v. M.C.I. (F.C., no. IMM-10862-12), Shore, February 28, 2014; 2014 FC 202. In Ramadan, supra, note 11, the Court agreed with the RPD that the Lebanese claimant had permanent resident status in Paraguay and was therefore excluded and that she had not rebutted the presumption of state protection in Paraguay (with respect to the claim of spousal abuse). And in Shen, Jintang v. M.C.I. (F.C., no. IMM-2037-15), Phelan, January 28, 2016; 2016 FC 99, similar findings were made with respect to a Chinese claimant with status in Ecuador.

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Note 76

Omorogie, Juan v. M.C.I. (F.C., no. IMM 2843-14), O’Keefe, November 5, 2015; 2015 FC 1255.

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Note 77

For example: Tshiendela v. Canada (Citizenship and Immigration), 2019 FC 344, para 37;Fleurisca v. Canada (Citizenship and Immigration), 2019 FC 810, para 24;Augustin v. Canada (Citizenship and Immigration), 2019 FC 1232, para 33; Occean v. Canada (Immigration, Refugees and Citizenship), 2019 FC 1234, para 38;Simolia v. Canada (Citizenship and Immigration), 2019 FC 1336; Asllani v. Canada (Immigration, Refugees and Citizenship), 2020 FC 645, paras 30-32.

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Note 78

Romelus, Gast Maelo v. M.C.I. (F.C. no. IMM-2916-18), St-Louis, February 11, 2019; 2019 FC 172.

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Note 79

This principle was reiterated in Milfort-Laguere v. Canada (Citizenship and Immigration), 2019 FC 1361, although in that case, the Court was of the opinion that this error did not change the outcome.

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Note 80

That said, in Fleurisca v. Canada (Citizenship and Immigration), 2019 FC 810, Augustin v. Canada (Citizenship and Immigration), 2019 FC 1232, and Occean v. Canada (Immigration, Refugees and Citizenship), 2019 FC 1234, three decisions published after Romelus, the Court upheld the panel’s exclusion finding and concluded that Brazil, the country of residence under consideration, was a “safe host country” for the claimant. This phrase is similar to that used by the Federal Court of Appeal in the introductory paragraph of Zeng, where it wrote:

[1] . . . Article 1E is an exclusion clause. It precludes the conferral of refugee protection if an individual has surrogate protection in a country where the individual enjoys substantially the same rights and obligations as nationals of that country. Asylum shopping refers to circumstances where an individual seeks protection in one country, from alleged persecution, torture, or cruel and unusual punishment in another country (the home country), while entitled to status in a “safe” country (the third country).

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Note 81

Jean v. Canada (Citizenship and Immigration), 2019 FC 242.

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Note 82

Celestin v. Canada (Citizenship and Immigration), 2020 FC 97.

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Note 83

Saint Paul v. Canada (Citizenship and Immigration), 2020 FC 493.

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Note 84

MCI v. Ezexuel Saint Paul, no. A-112-20, Notice of Appeal filed on May 5, 2020, against the decision rendered on April 7, 2020, by the Honourable Justice St-Louis of the Federal Court (no. IMM-2379-19).

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Note 85

Policy note for identification of MB8-00025 as a Refugee Appeal Division Jurisprudential Guide, December 22, 2020: https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/note-mb8-00025.aspx.

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Note 86

Zhong v. Canada (Citizenship and Immigration), 2011 FC 279, para 28; Mojahed v. Canada (Citizenship and Immigration), 2015 FC 690, para 16; Desir v. Canada (Citizenship and Immigration), 2019 FC 1164, paras 18-19. See also Charles c. Canada (Citoyenneté et Immigration), 2021 CF 520, para 19.

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Note 87

In Zeng, supra note 4, para 1, the Federal Court of Appeal states, among other things: “Asylum shopping refers to circumstances where an individual seeks protection in one country, from alleged persecution, torture, or cruel and unusual punishment in another country (the home country), while entitled to status in a “safe” country (the third country).”

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Note 88

In Xu v. Canada (Citizenship and Immigration), 2019 FC 639, at para 44, the Court wrote, in what may be interpreted as an obiter, that even if the claimant’s alleged experiences were insufficient to meet the threshold under sections 96 and 97 of the IRPA, it did not follow that they could not still be a very good reason for the claimant not to want to normalize her status in Guyana:

[44] […] Even assuming, as the RPD and the RAD concluded, that these experiences were insufficient to establish her claims under sections 96 or 97 of the IRPA, it does not follow that they could not still be a very good reason for Ms. Xu not to want to “normalize” her status in Guyana (or to bring her son there). Under Zeng, Ms. Xu’s explanation for why she lost her status in Guyana must be considered but the member never does so. As a result, his conclusion that she is excluded from refugee protection under Article 1E of the Refugee Convention lacks justification, transparency and intelligibility.

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Note 89

In Zhong v. Canada (Citizenship and Immigration), 2011 FC 279, at para 28, the Court confirmed the panel’s finding with regard to the claimants’ alleged fear of mistreatment as not justifying their failure to maintain their status in the residence country (they feared gangsters); in Mojahed v. Canada (Citizenship and Immigration), 2015 FC 690, at para 16, the Court confirmed the panel’s finding pertaining among other things to state protection in Austria, the claimant’s country of residence; in Desir v. Canada (Citizenship and Immigration), 2019 FC 1164, at paras 18-19, the Court confirmed the panel’s voluntary departure finding based on State protection and discrimination not amounting to persecution. In Charles c. Canada (Citoyenneté et Immigration), 2021 CF 520, at para 19, the Court confirmed that the Board does not err in finding that because the alleged discrimination does not amount to persecution, the claimant’s departure from the residence country is voluntary. Other cases can be read as also informing the issue, even if less directly. Although decided under the first prong of the Zeng framework, in Fleurant v. Canada (Citizenship and Immigration), 2019 FC 754, the Court, at para 18, made strong statements in rejecting the idea that a difficult situation that is generalized in the country of residence and that does not meet the criteria in sections 96 and 97 of the IRPA could overcome the exclusion clause. In Simolia v. Canada (Citizenship and Immigration), 2019 FC 1336, another decision dealing with the first prong of the Zeng framework, the Court made, in what may be interpreted as an obiter, a comment relevant to the present issue at para 29; other paragraphs, such as paras 3, 27 and 28, provide relevant context.

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Note 90

Saint-Fleur v. Canada (Citizenship and Immigration), 2020 FC 407, para 24; Morissaint v. Canada (Citizenship and Immigration), 2020 FC 413, paras 14-16;Joseph, Joanne v. Canada (Citizenship and Immigration), 2020 FC 839, para 4.

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