CITIZENSHIP AND IMMIGRATION
Status in Canada
Convention Refugees
Appeal from Federal Court decision 2004 FC 415 dismissing application for judicial review of dismissal by Refugee Protection Division (RPD) of Immigration and Refugee Board of claims for Convention refugee status as defined in Immigration and Refugee Protection Act (IRPA), s. 96(a)—Appellants, Sri Lankan Tamils, claiming refugee status on basis of race, ethnic group—Board finding both appellants (son, mother) credible, accepting allegations within narrative portions of personal information forms of claims— Appellants alleged persecution by police, who accused them of collaborating with Tamil rebels—Conditions in Sri Lanka improving substantially for ethnic Tamil minority since cease‑fire declared in country in 2001—Board rejected appellants’ refugee claims on ground insufficient evidence to establish well‑founded fear of persecution under current conditions in Sri Lanka—Federal Court certifying question whether RPD required to apply rebuttable presumption in paragraph 45 of Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status i.e. person has well‑founded fear of being persecuted if already victim of persecution for Convention reason—Phrase “well founded fear of being persecuted” in paragraph 45 of Handbook intended to have same meaning as phrase “well‑founded fear of persecution” in IRPA, s. 96—Handbook serving as guide in interpreting elements of statutory definition of Convention refugee because definition substantially incorporating corres-ponding provisions of Convention—Appellants asserting second sentence in paragraph 45 creating rebuttable presumption of law—Second sentence not intended to create legal presumption—Sentence simply explaining evidence of past persecution may support finding of fact claimant having well‑founded fear of persecution—Existence of rebuttable legal presumption inconsistent with Canadian case law— Convention refugee claimants must demonstrate well‑founded fear of persecution in future to support claim—Test for Convention refugee status prospective, not retrospective— Evidence of past persecution in country of origin insufficient of itself to establish claim but may form foundation for present fear—Well‑founded fear of persecution in future critical finding—In answer to certified question, paragraph 45 not establishing presumption of law that must be applied in determining refugee claims under IRPA—Evidence of change in country conditions since persecution occurred must be evaluated to determine whether fear remains well‑founded— Appeal dismissed—Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 96.
Fernandopulle v. Canada (Minister of Citizenship and Immigration) (A‑217‑04, 2005 FCA 91, Sharlow J.A., judgment dated 8/3/05, 12 pp.)