A-1190-88
Attorney General of Canada (Applicant)
v.
Patrick Francis Ward (Respondent)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. WARD (CA.)
Court of Appeal, Urie, Marceau and MacGuigan
JJ.A.—Toronto, February 8; Ottawa, March 5,
1990.
Immigration — Refugee status — Northern Ireland native
and former Irish National Liberation Army (INLA) member
claiming Convention refugee status — Under death sentence by
INLA for assisting hostages to escape — Whether INLA
'particular social group" within definition of "Convention
refugee" in Act — Whether persecution feared must be by
state — Whether claimant having United Kingdom citizenship
— Onus of establishing nationality — Whether claimant
establishing he could not avail self of protection of all coun
tries of nationality.
The respondent, a native of Northern Ireland (and accord
ingly considered a national of both the United Kingdom and
the Republic of Ireland) joined the Irish National Liberation
Army (INLA), an illegal paramilitary organization which had
broken away from the IRA. Assigned by the INLA to guard
two hostages, the respondent, bothered by his conscience,
assisted in their escape. He went back to Northern Ireland but
returned to the Republic to attend a wedding and was kid
napped by the INLA. After being tortured and sentenced to
death, respondent escaped and sought police protection. They
saw to respondent's hospitalization for treatment of the injuries
resulting from his torture but arrested him for complicity in the
detention of the hostages. Having served most of a three year
jail sentence, respondent was released and given police assist
ance in departing for Canada. The Minister determined that
respondent was not a Convention refugee but the Board allowed
a redetermination. The Attorney General has applied to set
that decision aside.
Held, the application should be allowed.
Per Urie J.A. (Marceau J.A. concurring): (1) The Board
erred in finding that the respondent was a member of a
"particular social group" to which the subsection 2(1) defini
tion of the Immigration Act, 1976 applied. Membership in the
INLA did not substantiate a claim for refugee status based on
a fear arising from actions committed by a member of the
group contrary to the interests of the group which group
interests were contrary to the well-being of the state. A fear
arising from within the group itself and not emanating from the
state could not provide the basis for a claim of persecution.
(2) Although the Board did not err in finding that the
claimant's inability to avail himself of his country's protection
and the state's inability to offer effective protection were
intertwined, the Board erred in finding that evidence of a lack
of protection created a presumption as to the likelihood of
persecution and the well-foundedness of any fear. Such a
determination could only be made after an assessment and
weighing of evidence. The claimant must establish that the
state cannot protect him from the persecution he fears.
(3) The Board erred in not addressing the issue of United
Kingdom citizenship and in finding the respondent's only coun
tries of nationality to be Northern Ireland and the Republic of
Ireland. A refugee claimant must establish that he is unable or
unwilling to avail himself of all of his countries of nationality
and such failure is fatal to the Board's finding of Convention
refugee status. Nationality was of prime importance. The right
to live in the country of nationality became important only in
the discharge of the onus of proving inability to avail himself of
the country of nationality. The Board erred in placing on the
Crown the onus of establishing nationality or right to live in the
United Kingdom. Subsection 8(1) places the burden of proof on
the person seeking entry.
Per MacGuigan J.A. (dissenting but concurring in part in
the result): (1) The Board did not err in finding the respondent
to be a member of a particular social group within the defini
tion of the Act. The applicant's argument, that "social group"
must be deemed to exclude terrorist groups in order that
Canada not become a haven for terrorists, was too absolute.
The starting point of the definition is the personal element. It is
the relationship of the person to the group which is at stake, not
an abstract concept of the group taken absolutely. The Board
decisions relied upon by the applicant were in cases where the
claimant was not clearly repentant. The respondent had turned
against terrorism and should not be automatically excluded
from Convention refugee status because the organization to
which he had belonged was a terrorist one. The particular
social group here in question should be understood as including
those who have renounced the INLA.
(2) The Board did not err in its interpretation of the defini
tion of persecution, taking into account the literal text of the
statute, the absence of any decisive Canadian precedents and
the weight of international authority. The subsection 2(1)
definition of "Convention refugee" does not, necessarily import
state complicity. The Board's interpretation was not contrary to
paragraph 3(g) of the Act regarding Canada's international
legal obligations and its humanitarian tradition.
(3) The Board erred in law by failing to consider whether
the respondent had established that he could not avail himself
of the protection of all his countries of nationality. The clear
meaning of the definition of "Convention refugee" in subsec
tion 2(1) is that a refugee claimant must be unable or unwilling
to avail himself of the protection of all countries of nationality.
Subsection 8(1) placed the burden of proof as to a claimant's
right to come to Canada on the claimant. A decision that a
democratic state lacked the ability to protect citizens from
subversive elements was not to be reached lightly and should be
made only upon a correct application of the burden of proof.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Convention Relating to the Status of Refugees, July 28,
1951, Geneva, 189 U.N.T.S. 137, Article 1.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
28(1)(c).
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 2(1),
3(g), 4(2) (as am. by S.C. 1988, c. 35, s. 3), 8(1),
19(1)(c),(d),(e),(J),(g), 46(1) (as am. by S.C. 1988, c.
35, s. 14), (3) (as am. idem).
Interpretation Act, R.S.C., 1985, c. I-21, s. 33(2).
Prevention of Terrorism (Temporary Provisions) Act
1974, 1974, c. 56 (U.K.).
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Naredo and Minister of Employment and Immigra
tion (1981), 130 D.L.R. (3d) 752 (F.C.A.).
CONSIDERED:
Rajudeen v. Minister of Employment and Immigration
(1984), 55 N.R. 129 (F.C.A.); Surujpal v. Minister of
Employment and Immigration (1985), 60 N.R. 73
(F.C.A.).
REFERRED TO:
Ward v. Canada (Minister of Employment and Immi
gration) (1988), 9 Imm. L.R. (2d) 48 (I.A.B.); Lazo-
Cruz, 80-6004, 16/1/80 (I.A.B.) not reported; Naredo,
80-9159, 20/11/80 (I.A.B.) not reported; revd by (1981),
130 D.L.R. (3d) 752 (F.C.A.); St. Gardien Giraud,
81-9669, 20/3/86 (I.A.B.), not reported.
AUTHORS CITED
Shorter Oxford English Dictionary, 3rd ed., Oxford:
Clarendon Press, 1968, "social".
United Nations. Office of the High Commissioner for
Refugees. Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Conven
tion and the 1967 Protocol relating to the Status of
Refugees (Geneva, September 1979).
COUNSEL:
Roslyn J. Levine for applicant.
Peter Rekai for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Rekai & Johnson, Toronto, for respondent.
The following are the reasons for judgment
rendered in English by
URIE J.A.: The Attorney General of Canada in
this section 28 [Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10] application seeks to set aside
the decision of the Immigration Appeal Board
("the Board") dated December 2, 1988 [Ward v.
Canada (Minister of Employment and Immigra
tion) (1988), 9 Imm. L.R. (2d) 48] determining
the respondent to be a Convention refugee.
The parties substantially agree on the facts
which are material and relevant but because of
their importance to the decision rendered they
must be set out in some detail.
The respondent was born and resided in Lon-
donderry, Northern Ireland. As such it would
appear that he is considered to be a national of
both the United Kingdom, of which there can be
no question that Northern Ireland is a part, and of
the Republic of Ireland. His evidence is that he
can hold a passport issued by either or both coun
tries although that which he held when he was
admitted to Canada had been issued by the
Republic of Ireland.
The respondent first became involved in the
Irish National Liberation Army ("INLA") in
January, 1982 but it was not until 1983 that he
formally became a member. According to the
respondent's evidence, the INLA is a paramilitary
organization, subject to strict discipline, a feature
of which is that "once you are a member you are
always a member".' If a member does not "tow
the line" he will be "shot because he constitutes a
threat to that organization's security". 2 The
respondent described the INLA in this way.'
' Case book, vol. 2, p. 123.
2 Ibid.
3 Ibid.
Q. You have referred to the INLA as a paramilitary body.
A. Yes.
Q. How does it organize itself?
A. It organizes itself as a break away group from the
provisional IRA.
Q. I do not mean in that sense, I mean how was it struc
tured? What was the structure of it? You must have
some kind of hierarchy.
A. It is structured starting with an Army council.
Q. An Army council.
A. At the top. And then it comes down through the ranks
with various section, battalions, like there is hundreds of
members all involved in this organization. It comes down
the ranks just like an Army. You have got your Colonels,
you have got your Sergeants, you have got your Lieuten
ants and all the rest because it is a military organization.
Q. Is there a discipline that's associated with this?
A. A strict discipline.
Q. What type of discipline is it?
A. The discipline is once you are a member you are always a
member. And if anybody steps outside those lines of
demarcation the only alternative is to assassinate them,
do away with them.
Q. So if a person does not tow the line, once he is a member
and he does not tow the line what happens to him?
A. He will be shot. Because he constitutes a threat to that
organization's security. They have their own intelligence,
their own sympathizers are outside that that continually
gather information and supply it.
The evidence also discloses that prior to his
becoming a member of INLA he had been convict
ed in 1982 for possessing firearms, conspiracy to
convey things unlawfully into Northern Ireland
and contributing to acts of terrorism.
Shortly after joining the INLA, the respondent
was assigned the task of guarding two hostages of
INLA, who were the stepfather and the seven or
eight year old sister of an imprisoned INLA
member whom the organization feared would
"turn supergrass", i.e. an informant and witness
for the State in exchange for a new identity and
exit from the country. In the event, the imprisoned
member did not retract his evidence so that the
hostages were sentenced to death by the INLA.
Since the respondent "could not live with my own
conscience if I permitted this to go on", 4 he assist
ed the hostages to escape in the middle of the night
4 Case book, vol. 2, pp. 126-127.
during his shift on guard duty. He drove them to a
nearby police station and left them there and then
returned to duty. Shortly after his return, the
police arrived, surrounded the area but during the
ensuing gun battle all of the INLA members,
including the respondent, escaped.
Two days later, the respondent was arrested in
the Republic of Ireland by the police. He was held
for two days, questioned about the hostage taking
incident, then released following which he returned
to Northern Ireland.
A month later, he was kidnapped by the INLA
while attending a wedding in the Republic of
Ireland and was accused of deliberately releasing
the hostages. He was held for two days and three
nights during which he was tortured, court-mar-
tialled and sentenced to death. He managed to
escape and sought protection of the police in the
Republic who arranged for his hospitalization for
treatment of his injuries incurred during his tor
ture. He was then arrested for his complicity in
holding the two hostages in detention. Soon after
his wife and two children were kidnapped by the
INLA and held for ten days until the respondent
was able to assure them that he would not himself
turn "supergrass" with respect to the kidnapping
of the other hostages.
He pleaded guilty to the offence of forcible
confinement and was sentenced to three years in
jail of which he served two years and nine months,
at his request and for his protection, in isolation at
a non-political prison. Just prior to his release he
sought the assistance of the prison chaplain to help
provide for his protection from INLA members
upon his release. The chaplain, with the assistance
of a member of the police knowledgeable about his
case, obtained a Republic of Ireland passport for
the respondent, as well as airline tickets to Canada
and some money. The respondent and his family
were guarded by the Irish police for the two days
prior to his departure for Toronto where he sought
admission as a visitor on December 19, 1985. He
remains here, is employed and his family, who still
reside in Ireland, visit him each year.
The respondent became the subject of an inquiry
in May 1986, which was adjourned to permit him
to present his claim to be a refugee. The Minister
of Employment and Immigration determined him
not to be a Convention refugee following which he
filed an application for redetermination of his
claim with the Board. The Board, in a unanimous
decision, allowed the redetermination and found
the respondent to be a Convention refugee. It is
from that decision that this section 28 application
has been brought by the applicant, Attorney Gen
eral of Canada.
I will deal with the issues as defined in the
applicant's memorandum of fact and law in the
order in which they appear therein.
ISSUE I
Did the Board err in law in failing to consider
whether the INLA was a "particular social group"
within the definition of "Convention refugee" in
subsection 2(1) of the Immigration Act, 1976
[S.C. 1976-77, c. 52]?
That definition, as it read at the relevant time is:
2. (1) ...
"Convention refugee" means any person who, by reason of a
well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or politi
cal opinion,
(a) is outside the country of his nationality and is unable or,
by reason of such fear, is unwilling to avail himself of the
protection of that country, or
(b) not having a country of nationality, is outside the coun
try of his former habitual residence and is unable or, by
reason of such fear, is unwilling to return to that country.
At the hearing before the senior Immigration
officer on his refugee claim, the respondent stated
that he feared persecution because of his member
ship in a particular social group, namely, the
INLA. The first question to be addressed, then, is
whether the INLA, as a paramilitary, illegal
organization, which according to the evidence,' is
devoted to the unification of Ireland and the over
s Case book, vol. 2, p. 18.
throw of Great Britain in the affairs of Northern
Ireland, can be regarded as a "particular social
group" for the purpose of determining whether a
person is a Convention refugee within the meaning
of the Act.
The Board did not consider this question pre
cisely, accepting, apparently, that it was "for rea
sons of membership" in it, as a particular social
group, that provided the foundation for the
respondent's well-founded fear of persecution
resulting in his inability or unwillingness to avail
himself of the protection of the country of his
nationality. Accordingly, accepting that the INLA
was a "particular social group" it embarked on an
inquiry as to what was the respondent's nationality
to enable it to determine the country or countries
of which he could avail himself for protection and
concluded that, while he was clearly a citizen of
both Northern Ireland and the Republic of Ire-
land, "no evidence was presented to the Board to
establish that the claimant is also a citizen of the
United Kingdom". 6 That clearly erroneous finding
will be dealt with later in my reasons.
I turn now to what "a particular social group"
means. Counsel for the applicant argued that the
definition thereof may only be determined by the
context and purpose of the Act in terms of Cana-
da's international obligations. Counsel pointed out
that paragraph 3(g)' of the Act recognizes Cana-
da's need to fulfil its "international legal obliga
tions with respect to refugees and to uphold its
humanitarian tradition with respect to the dis
placed and persecuted". To be consistent in the
fulfilment of its humanitarian goal, groups who by
acts of terrorism seek to promote their aims, in this
case the overthrow of the duly constituted author
ity, should be excluded from those social groups
who meet the definition of Convention refugee. To
do otherwise, counsel said, would allow Canada to
be a haven for persons who admit to sympathizing
6 Case book, vol. 4, p. 446.
' 3. It is hereby declared that Canadian immigration policy
and the rules and regulations made under this Act shall be
designed and administered in such a manner as to promote the
domestic and international interests of Canada recognizing the
need
(g) to fulfil Canada's international legal obligations with
respect to refugees and to uphold its humanitarian tradi
tion with respect to the displaced and the persecuted;
with or having committed or participated in terror
ists acts in other countries, with or without disa
vowing their support of terrorists. In any event, it
was argued, it was the respondent's actions while a
member of the group and the consequences of
those actions which were the basis of his fear of
persecution, not his membership in the group.
As to the last submission, as I said in a concur
ring opinion in Re Naredo and Minister of
Employment and Immigration' in respect of a
similar but not identical argument, from which
two questions arise:
(a) is such a fear well-founded, and
(b) if it is, does it arise from reasons of race,
religion, nationality, membership in a particular
social group or political opinion?
To answer the questions the Board is required to
make findings of fact and to draw inferences from
the facts established in evidence. The Board in this
case found as a fact that, subjectively, that the
respondent fears for his safety should he return to
either the Republic of Ireland or to the United
Kingdom. (Whether or not there was evidence to
support the finding as to the fear of being returned
to the United Kingdom will be dealt with later.) It
may be as well, that objectively speaking, there is
some evidence of justification for these fears at
least as they relate to either the Republic of
Ireland or to Northern Ireland.
The next question suggested in Naredo, supra,
is, did it arise because of his membership in a
particular social group, the INLA? It is clear on
the evidence that his immediate, direct fear arises
not from his membership but because of the death
sentence imposed on him at his INLA court mar
tial. While his action in releasing the hostages led
to his court martial, it was his membership in the
INLA which caused the court martial to be con
vened. While counsel for the applicant is certainly
' (1981), 130 D.L.R. (3d) 752 (F.C.A.), at p. 754.
in part correct in her last submission, the actions
which the respondent took as a matter of con
science would have been unnecessary had it not
been for his membership in the INLA. That, of
course, brings us to the question as to whether the
INLA is one of the kinds of social groups
envisaged by the definition of Convention refugee
in the Act remains unanswered.
It was the contention of counsel for the respond
ent that any reasonably definable organization
engaged in political activity may be included in the
definition. If that were so I find it difficult to
understand why it was necessary to include in the
definition the term "a particular social group"
when the term "political opinion" is part of the
definition. To be engaged in political activity
seems to assume the existence of a "political opin
ion" unless someone is employed by those with
political opinions is without an opinion of his own,
of which there is no evidence here. The authorities
cited by counsel in support of his proposition were
not, moreover, persuasive. More helpful is the
commentary contained in Handbook on Proce
dures and Criteria for Determining Refugee
Status under the 1951 Convention and the 1967
Protocol relating to the Status of Refugees issued
by the Office of the United Nations High Com
missioner for Refugees in 1979, ("the Hand
book"). The Interpretation section of the Hand
book refers to "Membership of a particular social
group" in this way [at page 19] :
77. A "particular social group" normally comprises persons
of similar background, habits or social status. A claim to fear
of persecution under this heading may frequently overlap with
a claim to fear of persecution on, other grounds, i.e. race,
religion or nationality.
78. Membership of such a particular social group may be at
the root of persecution because there is no confidence in the
group's loyalty to the Government or because the political
outlook, antecedents or economic activity of its members, or the
very existence of the social group as such, is held to be an
obstacle to the Government's policies.
79. Mere membership of a particular social group will not
normally be enough to substantiate a claim to refugee status.
There may, however, be special circumstances where mere
membership can be a sufficient ground to fear persecution.
[Emphasis added.]
It is implicit from the foregoing that the perse
cution arising from membership in the group must
arise from its activities perceived to be a possible
danger of some kind to the government. The
INLA activities are clearly contrary to the inter
ests of the government of Northern Ireland and of
the United Kingdom. But mere membership does
not, of itself, substantiate a claim to refugee
status. A fortiori, membership does riot substanti
ate a claim to refugee status based upon a fear
arising from acts committed by a member of the
group contrary to the interests of the group, which
group interests are themselves contrary to the well-
being of the state. The interests are mutually
exclusive.
The Shorter Oxford English Dictionary defines
"social", inter alia, as:
1. Capable of being associated or united to others;
2. Associated, allied, combined...
While, on the basis of this definition, there can
be no doubt that the INLA, being composed of
persons who are "associated, allied, combined", is
a social group, is it the kind of social group,
membership in which provides a basis for a finding
of a well-founded fear of persecution?
As it seems to me, if the fear arises from within
the group itself and does not emanate from the
State, whether in the persona of the police or some
other branch of government, it cannot provide the
basis for a claim of persecution. Otherwise, for
example, a fugitive from one of two or more
factions engaged in terrorist activities for the pur
pose of the overthrow of the government, for
example, could claim to be a refugee whether or
not he or she has renounced his or her opposition
to the government in power or to the activities in
which the warring factions are engaged. To permit
that, would, as I see it, be inconsistent with Cana-
da's obligations as spelled out in the Act and does
not fall within the category of being among the
humanitarian obligations.
I have not been persuaded, therefore, that the
respondent, as a member of the INLA, who fears
persecution from that organization, is entitled to
the protection afforded to bona fide refugees who
meet all of the elements of the definition of Con-
vention refugee in the Act. Nor does he do so by
being a member, among many other former mem
bers, who have acted in a manner which the INLA
deems to have been contrary to its interests. If
such a view were to be taken anyone who dissents
on anything could be said to be a member of a
particular social group. To state the proposition
demonstrates its absurdity.
ISSUE II
Even if the claimant belongs to a social group, did
the Board err in law in failing to apply the correct
- test in determining whether the respondent's fear
is "persecution" within the definition of "Conven-
tion refugee" in the Act?
Two recent cases in this Court have dealt with
the appropriate factors to be taken into account. In
Rajudeen v. Minister of Employment and
Immigration,' the Court held that although the
evidence established that the mistreatment of the
applicant had been carried out by thugs of the Sri
Lanka majority and not by Government authori
ties or by the police, the police took no active steps
to stop the mistreatment. The applicant had there
fore established ample justification for being
unwilling to avail himself of the protection of Sri
Lanka so that he had satisfied the definition of
Convention refugee. In a concurring opinion,
Stone J.A. had this to say in Rajudeen v. Minister
of Employment and Immigration (1984), 55 N.R.
129 at page 135:
Obviously, an individual cannot be considered a "Convention
refugee" only because he has suffered in his homeland from the
outrageous behaviour of his fellow citizens. To my mind, in
order to satisfy the definition the persecution complained of
must have been committed or been condoned by the state itself
and consist either of conduct directed by the state toward the
individual or in it knowingly tolerating the behaviour of private
citizens, or refusing or being unable to protect the individual
from such behaviour.
The respondent contends that no persecution occurred in this
case because the treatment complained of was visited upon the
applicant by bands of thugs operating outside the law rather
than by the state itself. It pointed to some evidence which it
claimed as establishing that the state indeed frowned upon the
sort of behaviour that is in question and had provided a means
of redress in the courts of Sri Lanka. But I think we must look
9 (1984), 55 N.R. 129 (F.C.A.).
at what actually occurred. It is true that the acts complained of
were not committed by the state or its agents. On the other
hand, a consideration of the evidence as a whole convinces me
that the police were either unable or, worse still, unwilling to
effectively protect the applicant against the attacks made upon
him. Accordingly, because of his race and religion, the appli
cant could not reasonably expect to be protected by an impor
tant state agency against unlawful attacks. In my view, he had
good reason to be fearful and, objectively, such fear was
well-founded.
Surujpal v. Minister of Employment and
Immigration 10 is a case in which an alien husband
and wife applied for Convention refugee status
after fleeing their native Guyana. The Board
found them not to be refugees because the persecu
tion which they alleged was not suffered because
of actions by the state or the "organs of state" but
rather they suffered harassment at the hands of
overzealous supporters of a political party. Mac-
Guigan J.A. speaking on behalf of the Court, at
page 75 of the report held that:
In our view it is not material whether the police directly
participated in the assaults or not. What is relevant is whether
there was police complicity in a broader sense.
Relying upon what was said in both opinions in
the Rajudeen case, he then had this to say at page
76:
... the facts here more strongly indicate State complicity in the
persecution, since the applicants and their families did go to the
police but did not obtain redress. It is not required that State
participation in persecution be direct; it is sufficient that it is
indirect, provided that there is proof of State complicity.
[Emphasis added.]
The Court thereupon concluded that the deci
sion of the Board was wrong in law and that the
applicants had satisfied the definition of Conven
tion refugee.
In this case the Board said: "
Clearly, there is no state complicity in the persecution which
the claimant fears. The Irish police have offered, and according
to the claimant, would in future, offer him protection. The
Board is convinced, however, that given the nature of the
INLA, the police and other state authorities would be unable to
provide the claimant with effective protection.
10 (1985), 60 N.R. 73 (F.C.A.).
11 Case book, vol. 4, p. 447.
Counsel for the applicant did not contest this
finding. However, on the basis of the Rajudeen
and Surujpal cases, she argued that there had to
be at least state complicity if the fear held by a
person was to be found to be persecution sufficient
to support a refugee claim. In her view, while
persecution and inability to avail oneself of state
protection are related elements in the definition of
Convention refugee, the two concepts must be
addressed and satisfied independently. The Board,
she argued, confused the determination of persecu
tion and ineffective protection.
I agree. If a claimant is "unwilling" to avail
himself of the protection of his country of nation
ality, it is implicit from that fact that his unwill
ingness stems from his belief that the State and its
authorities, cannot protect him from those he fears
will persecute him. That inability may arise
because the State and its authorities are either
themselves the direct perpetrators of the feared
acts of persecution, assist actively those who do
them or simply turn a blind eye to the activities
which the claimant fears. While there may well be
other manifestations of it, these possibilities clearly
demonstrate that for a claimant to be unwilling to
avail himself of the protection of his country of
nationality, to provide the foundation for a claim
to be a refugee he must establish that the State
cannot protect him from the persecution he fears
arising, in this case, from his former membership
in the INLA, i.e., he must establish that what he
fears is in fact persecution as that term is
statutorily and jurisprudentially understood. On
that basis the involvement of the State is a sine
qua non where unwillingness to avail himself of
protection is the fact.
On the other hand, being "unable" to so avail
himself connotes, as I see it, quite literally that the
claimant cannot, because of his physical inability
to do so, even seek out the protection of his state.
These imply circumstances over which he has no
control and is not a concept applicable in facts of
this case.
The record here clearly shows that the respond
ent does not allege state complicity as playing a
part in his fear of seeking the protection of the
police in either part of Ireland. Rather, he fears
that by the very nature of the INLA and its
methods of operation, the police would be unable
to afford that protection. Accordingly, the Board
did not err in making its finding recited above and
in holding that:
... the individual's inability to avail himself of his country's
protection and the state's inability to offer effective protection
are inextricably intertwined. 12
However, I cannot agree with its view that:
Fear of persecution and lack of protection are also inter
related elements. Persecuted persons clearly do not enjoy the
protection of their country of origin and evidence of the lack of
protection may create a presumption as to the likelihood of
persecution and to the well-foundedness of any fear. ' 3
No such presumption arises. The determination
can only be made after an assessment and weigh
ing of the evidence to ascertain whether or not the
claimant, in the opinion of the appropriate tri
bunal, has, on a subjective and on an objective
basis a well-founded fear of persecution for one of
the reasons set out in the definition. Thereafter,
the other aspects of inability or unwillingness must
be addressed.
ISSUE III
The Board based its decision on an erroneous
finding of fact made within the meaning of para
graph 28(1) (c) of the Federal Court Act, in find
ing that the respondent's only country of national
ity was Northern Ireland and the Republic of
Ireland.
While I have described it as Issue III, my
discussion of it will encompass the applicant's
Issues IV and V as well since they arise out of the
same alleged error of the Board. The impugned
finding in context reads as follows: 14
The claimant maintains he has a well-founded fear of perse
cution by reason of his having been a member in the INLA.
The claimant's evidence disclosed that while he believes himself
to be safe so long as he is in Canada, he fears for his safety
12 (1988), 9 Imm. L.R. (2d) 48, at p. 59.
13 Ibid.
14 Idem, at pp. 53-54.
should he be returned to Ireland or the United Kingdom. This
raises the question of the claimant's nationality. Clearly, the
evidence established that the claimant is a citizen of Ireland,
both Northern Ireland and the Republic of Ireland. However,
no evidence was presented to the Board to establish that the
claimant is also a citizen of the United Kingdom. In response to
questions put to him in cross-examination, the claimant testi
fied that as a citizen of Northern Ireland, he is entitled to live
in Britain unless he is excluded under the Protection of Terror
ism Act of the United Kingdom, whereunder anyone with
terrorist connections can be refused entry to British mainland.
While the respondent questioned the reasonableness of the
claimant's fear of the INLA were he to return to Britain, the
respondent did not establish either the claimant's right to live in
Britain or the claimant's right to citizenship in the United
Kingdom. Accordingly, the Board finds the claimant's country
of nationality to be Northern Ireland and the Republic of
Ireland. [Emphasis added.]
Counsel for the applicant asserted that the
Board's first error was in holding that "no evi
dence was presented to the Board to establish that
the claimant is also a citizen of the United King
dom". (Emphasis added.) The fact is that the
respondent himself testified that he was, as will be
seen from the following passages from his
evidence:' 5
Q. You stated at the beginning that you were a citizen of the
Republic of Ireland and I believe you travelled on an
Irish passport.
A. No, I am a citizen of Ireland. I carry a Republic of
Ireland passport. That's exactly what I said.
Q. You carry a Republic of Ireland passport. Do you have
the right to live at the Republic of Ireland?
A. Yes.
Q. Do you have the right to live in that part of the world
which we call Northern Ireland?
A. Yes.
Q Are you a citizen of the United Kingdom?
A. I am in effect, yes.
Q. Do you have the right to live in the United Kingdom, that
is in Scotland, Ireland, Wales, England, the Isle of Man,
Guernsey Islands. Could you live in any one of those
places you want to?
A. Questionable.
Q. Why is it questionable?
A. It is questionable because in the mid-70's the British
Government introduced an Act called the PTA, Preven
tion of Terrorism Act.
MR. WARRINGTON: I am sorry, I cannot hear you.
THE WITNESS: In the mid-70's the British Government intro
duced an act in Britain through Parliament known as the
'S Case book, vol. 2, p. 166.
Prevention of Terrorism Act, PTA, stating that anybody that
had any connections or involvement with anti-social groups
in Northern Ireland would not be admitted to the British
mainland. And there has been numerous cases where Irish-
men have been called British in Northern Ireland and yet
when they went to England to look for a job they were told
they were Irish, to go back home.
MR. STONG: Q. By the British authorities?
A. By the British authorities under the PTA, the Prevention
of Terrorism Act.
Q. These people who are members of known Terrorist
groups?
A. Not necessarily.
Q. Did you ever apply as a British citizen to live elsewhere in
the United Kingdom, other than Northern Ireland?
A. No.
Q. Why do you think this Act would apply to you?
A. Because of my past convictions.
Q. Are all Irish persons forbidden to live elsewhere in
England?
A. I cannot generalize.
Q. Are all Irish persons who spend time in a non-political
jail forbidden from living elsewhere?
A. It's a selective process that Irish citizens have no control
over. It is up to the British department involved when
they are picked up at an airport or seaport as to why they
should stay or not stay.
Q. So you have no way of knowing whether you can live
elsewhere and you have never tried and you have never
inquired?
A. I have never tried because using common sense it would
be silly for me to apply to live in England after being
involved in an organization that's opposed to British rule.
That's akin to asking Hitler to live in Jerusalem.
[Emphasis added.]
In counsel's view, this was a perverse finding
made without regard to the evidence and thus fell
within paragraph (c) of section 28 of this Court's
constituent Act. The findings in counsel's view,
was of major importance because the ascertain-
ment of a claimant's nationality is the necessary
first step in determining all other issues relating to
his claim for refugee status.
Then, if it is found that he has more than one
country of nationality the claimant is obliged to
establish his unwillingness to avail himself of the
protection of each of his countries of nationality
before he can be considered to be a Convention
refugee. In fact, Article 1 of the 1951 Convention
Relating to the Status of Refugees, [July 28,
1951, Geneva, 189 U.N.T.S. 137] subparagraph 2,
specifically so provides:
In the case of a person who has more than one nationality,
the term "the country of his nationality" shall mean each of the
countries of which he is a national, and a person shall not be
deemed to be lacking the protection of the country of his
nationality if, without any valid reason based on wellfounded
fear, he has not availed himself of the protection of one of the
countries of which he is a national.
The respondent counsel's position on this aspect
of the case was that while his client conceded that
Northern Ireland was part of the United Kingdom
he did not have an unrestricted right to live there.
It was a qualified right in that the Prevention of
Terrorism (Temporary Provisions) Act 1974
[(U.K.), 1974, c. 56] provided the basis for a
terrorist being precluded from taking up residence
in the United Kingdom. Since the respondent had
been convicted in Northern Ireland in 1982 for,
inter alia, contributing to acts of terrorism, he
might well be refused admission under that Act.
There is no evidence on the record that he had
made any inquiries or applications to ascertain
whether or not he might avail himself of the
protection of his second country of nationality or
that, if he had, his admission would have been
refused. Had he done so and been refused, he
would have been unable to obtain the protection of
the United Kingdom.
We were not informed by counsel of any juris
prudence emanating from any court in this country
as to the obligations of a refugee claimant who is
the holder of dual nationality, to seek the protec
tion of each of those countries in the case of
apprehended persecution in either. However, coun
sel for the applicant referred for support not only
to the 1951 treaty, Article 1 of which was quoted
above, but to the United Nations Handbook on
Procedures and Criteria for Determining Refugee
Status where under the heading "Dual or multiple
nationality" at pages 24-25, after quoting Article
1A(2), paragraph 2, of the 1951 Convention, he
referred to paragraph 107 which reads in this way:
107. In examining the case of an applicant with dual or
multiple nationality, it is necessary, however, to distinguish
between the possession of a nationality in the legal sense and
the availability of protection by the country concerned. There
will be cases where the applicant has the nationality of a
country in regard to which he alleges no fear, but such nation
ality may be deemed to be ineffective as it does not entail the
protection normally granted to nationals. In such circum
stances, the possession of the second nationality would not be
inconsistent with refugee status. As a rule, there should have
been a request for, and a refusal of, protection before it can be
established that a given nationality is ineffective. If there is no
explicit refusal of protection, absence of a reply within reason
able time may be considered a refusal.
While this view is not binding upon us since it
has not been incorporated into Canadian law, it is
persuasive as forming a logical construction of the
Convention refugee definition in section 2 of the
Immigration Act, 1976. As counsel also pointed
out, subsection 33(2) of the Interpretation Act 16
provides that "Words in the singular include the
plural". For these reasons, I am of the opinion that
a refugee claimant must establish that he is unable
or unwilling to avail himself of all of his countries
of nationality. It is the nationality of the claimant
which is of prime importance. The right to live in
his country of nationality becomes relevant only in
the discharge of the onus on him of proving that he
is unable to avail himself of the country of which
he has established he is a national.
The next question requiring an answer is, since
the respondent failed to do so, is that failure and
the failure of the Board fatal to the Board's find
ing that the respondent had established that he
was a Convention refugee?
In my opinion it was because not only did it fail
to address the issue, it compounded the error
because it perceived that it was the Crown which
had the onus of establishing "either the claimant's
right to live in Britain or the claimant's right to
citizenship in the United Kingdom". That the
Crown has no such onus is apparent from subsec
tion 8(1) of the Act which states the burden of
proof for a person seeking to come into Canada,
rests on that person.
Accordingly, for these reasons and as well for
the error of the Board in finding the respondent to
be a member of a particular social group to which
16 R.S.C., 1985, c. I-21.
the definition of Convention refugee in the Act
applied, the section 28 application should be
allowed. The decision of the Board under review
should be set aside and the matter should be
referred back to the Board for reconsideration in a
manner not inconsistent with these reasons.
Before leaving this matter I should be remiss if I
were not to say that I recognize that the respond
ent's plight is one which cannot help but arouse
sympathy notwithstanding that it is one initially at
least of his own making. However, this Court, as
does any court, has the responsibility to apply the
law as it understands it. I am unable to conceive
that Parliament in adopting the definition of Con
vention refugee intended it to extend to persons
belonging to organizations whose sole raison d'être
is by force to overthrow the duly and democrati
cally constituted authority in countries such as the
United Kingdom and the Republic of Ireland
where unquestionably the rule of law continues to
prevail. If that is so the respondent cannot be a
refugee. Mere protestations of repentance are not
enough to obviate the incidence of membership. If
there is any way he can be legally admitted to this
country, it is not, in my opinion, by the device of
claiming refugee status.
MARCEAU J.A.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.A. (dissenting): This section 28
application seeks to review and set aside the deci
sion of the Immigration Appeal Board ("the
Board"), dated December 2, 1988, determining the
respondent to be a Convention refugee on the
ground of a well-founded fear of persecution by
reason of membership in a particular social group.
The facts, in brief, are these. The respondent
became a member of the Irish National Liberation
Army ("INLA"), an anti-British paramilitary
group in Northern Ireland, in 1983. The INLA
was formed in the mid-1970's in a splintering into
factions of the Irish Republican Army. It is
described in a newspaper article as "Northern
Ireland's most shadowy and extreme nationalist
guerrilla organization" (Case, IV at page 437).
The respondent's first significant assignment
with the INLA came a few months after joining,
when he was_ assigned the duty with others of
guarding two hostages at a holiday home in Done-
gal in the Republic of Ireland ("Ireland") not far
from the border with Northern Ireland. When the
INLA subsequently made the decision to kill the
hostages, he underwent a crisis of conscience,
which led him to facilitate their escape during his
guard period at night, and indeed actually to drive
them to a nearby police station.
As a consequence, he quickly fell under INLA
suspicion and, while attending a wedding in Ire-
land, was kidnapped by the INLA, tortured for
two days and ultimately sentenced to death for
assisting in the release of the hostages. However,
he managed to escape and went to the Irish
authorities.
Because his fingerprints had been found in the
house in Donegal, he was arrested by the Garda
(the Irish police), spent six months in custody, and
was convicted and sentenced to three years impris
onment for detaining the hostages against their
will.
In the meantime his wife and two children were
kidnapped and held by the INLA for about two
weeks as a precautionary measure to deter him
from turning "supergrass" or informer against the
INLA.
Before his release from prison in Ireland, which
occurred on December 17, 1985, he approached
the prison chaplain for assistance. The chaplain
arranged for the issuance of an Irish passport to
him" and ensured that he was protected by the
Garda until he could fly to Canada two days later.
The Board's principal factual finding was as
follows ((1988), 9 Imm. L.R. (2d) 48, at pages
54-55):
The Board found the claimant to be a completely credible
witness. We are convinced by the evidence that the claimant
" He testified that as a resident of Northern Ireland he was
entitled to both British and Irish passports. (Case, vol. 2, p.
110.)
would indeed pose a serious security threat to the INLA were
he to be returned to Ireland such that the claimant's life would
be in grave danger of capture, torture and death at the hands of
the INLA. Even if the INLA did not consider the claimant to
be a threat to its security, the claimant's life would be in grave
danger resulting from the death sentence passed on him by the
INLA. The respondent argued that the INLA poses no threat
to the claimant as it is in internal disarray. However, no
evidence whatsoever was tendered to support this contention. In
fact, the evidence before the Board is that the INLA is an
organization that always carries out is threats.
The Board went on to recognize that "there is
no state complicity in the persecution which the
claimant fears" (at page 55), but held as follows
(at pages 59-60):
Fear of persecution and lack of protection are also interrelat
ed elements. Persecuted persons clearly do not enjoy the protec
tion of their country of origin and evidence of the lack of
protection may create a presumption as to the likelihood of
persecution and to the well-foundedness of any fear.
"Cause and effect are yet more indirect where the govern
ment of the country of origin cannot be immediately
implicated. Refugees, for example, have fled mob violence or
the activities of so-called `death squads'. Governments may
be unable to suppress such activities, they may be unwilling
or reluctant to do so, or they may even be colluding with
those responsible. In such cases where protection is in fact
unavailable, persecution within the Convention may result,
for it does not follow that the concept is limited to the actions
of governments or their agents." (G.S. Goodwin-Gill, The
Refugee in International Law Clarendon Press: Oxford,
1983) at 42 (Emphasis added; footnotes omitted.)
The leading authorities recognize that the definition of Con
vention refugee includes a consideration of the state's ability to
protect the applicant but without any requirement that there be
state complicity in the persecution suffered by the applicant:
"There is actually valid reasons for contending that even if a
government has the best of wills to prevent atrocities on the
part of the public (or certain elements of the population), but
for some reason or other is unable to do this, so that the
threatened (sic) persons must leave the country in order to
escape injury, such persons shall be considered true refugees.
As a matter of fact, they may be just as destitute and just as
much in need of help and assistance as any other group of
refugees." (A. Grahl Madsen, The Status of Refugees in
International Law, vol. 1 (A.W. Sijthoff-Leyden: 1966) at
191; See also quotation from handbook, p. 58, supra).
The applicant argued that the Board erred in
three respects: in its definition of particular social
group, in its understanding of persecution, and in
its factual findings combined with further errors of
law.
In relation to the definition of membership in a
particular social group, I do not believe there can
be any serious argument that the INLA is not
literally a particular social group, since the mem
bers are united in a stable association with
common purposes. I believe the group might be
said to be a non-natural social group, i.e., one not
defined by race or nationality. However, the appli
cant submitted that the meaning of the concept of
particular social group must be taken in the light
of paragraph 3(g) of the Immigration Act, 1976
("the Act"), which posits as an objective of the
Act the fulfilling of Canada's international legal
obligations with respect to refugees and the
upholding of its humanitarian tradition with
respect to the displaced and persecuted. It was
therefore said that, in keeping with this objective,
"social group" must be deemed to exclude terrorist
groups. In the words of the applicant's memoran
dum of fact and law "to do otherwise would allow
Canada to be a safe haven for persons who admit
having sympathized with and committed terrorist
acts, and who may or may not disavow their
terrorist sympathies". Nevertheless, given the
breadth of the objective as stated by the Act, I
cannot see that the definition is appropriately
interpreted in such an absolute fashion.
The starting point of the definition, it seems to
me, is the personal element: a Convention refugee
is a "person who, by reason of a well-founded fear
of persecution for reasons of ... membership in a
particular social group". (Emphasis added). It is
the relationship of the person to the group which is
at stake, not an abstract concept of group taken
absolutely. In the case at bar we begin with the
facts (as found by the Board) that the respondent
is a person who, having belonged to a prima facie
particular social group now fears persecution by
that group. Is it reasonable to interpret "particular
social group" so absolutely as to render those facts
irrelevant? In my opinion, beginning with an abso
lute definition in the abstract is starting at the
wrong end of the statutory definition.
There is in fact nothing absolute about social
groups, particularly non-natural social groups.
They may have ideologies, but some members may
not adhere to them, belonging rather for reasons of
prestige, or fear, or some other non-ideological
reason. Such groups may have membership initia
tions or fees or lists, but many camp-followers may
be drawn to their side and be perceived as mem
bers by the world, but yet not be members in the
way others are. Such groups may be terrorist in
intent, but nevertheless they may contain within
their ranks those who are less given to violence and
even those who are dedicated to non-violence and
universal pacifism. Perhaps, above all, membership
may be regarded as indelible and forever, but some
may drift away, or even break off suddenly for
reasons of principle. Should those who were briefly
active in the Communist Party in the thirties in a
time of depression and despair be permanently
categorized as members of a subversive group?
The concept of social group should not in my
opinion be wielded like a broadsword to lop off all
individualizing circumstances within an arbitrarily
designated circumference. In a world fractured by
racism and religion, politics and poverty, reality is
too complex to be thus limited by conceptual
absolutes.
The previous decisions of the Board cited by the
applicant," even if correctly decided, are all cases
where the claimants attempting to rely on mem
bership in a particular social group were either
unrepentant or at least not clearly repentant,
whereas in the case at bar the respondent, in his
first try-out as a terrorist, not only turned against
terrorism through an impulse of humanity and
sanity, but restored his captives to freedom. In the
absence of clear language to the contrary, I cannot
conceive that Parliament intended that such a
repentant "Samaritan" should be automatically
excluded from Convention refugee status because
the group which he abandoned because of its
terrorism is by reason of that terrorism excluded
from consideration as a particular social group.
IS Lazo-Cruz, 80-6004, January 16, 1980 (I.A.B.), not
reported; Naredo, 80-9159, November 20, 1980 (I.A.B.), not
reported, overturned by this Court on other grounds (1981),
130 D.L.R. (3d) 752; and St. Gardien Giraud, 81-9669, March
20, 1986 I.A.B., not reported.
The general commitment of his group to terrorism
should surely not mean that he, as an individual, is
unable to terminate this adherence to it.
Of course, the particular social group in which
the respondent claimed membership is the INLA
itself (case, vol. 1, at page 5; vol. 2, at page 158), 19
but in his case that must mean former member
ship, as his counsel pointed out in argument before
the Board (case, vol. 3, at page 357). In other
words, the particular social group consists of mem
bers and former members of the INLA. In my
view it is because the particular social group in
question here must be understood to include those
who have renounced the INLA and its objectives
and methods that no question properly arises on
these facts whether the group is a terrorist
organization.
It is also necessary to keep in mind that qualifi
cation as a Convention refugee does not then
entitle a successful claimant automatically to
remain in Canada: see subsections 4(2) [as am. by
S.C. 1988, c. 35, s. 3], 46(1) [as am. idem s. 14]
and 46(3) [as am. idem] of the Act. The right of
even an acknowledged refugee to remain in
Canada is subject to the exceptions specified in
paragraphs 19(1)(c),(d),(e),(1) or (g) or 19(2)(a)
relating to previous convictions or to espionage or
subversion. This is a hurdle the respondent, even if
successful in establishing Convention refugee
status, will still have to overcome in the light of his
conviction for detaining persons against their will
in Ireland and his criminal record in Northern
Ireland (case, vol. 4, at page 443), though it should
be noted that none of his convictions in Northern
Ireland led to sentences of actual imprisonment.
This problem will remain for the respondent, even
if he is successful here, but it has nothing to do
with the issues in the present case, except insofar
as it should be recognized as another line of
defence for the Government.
19 I cannot accept the respondent's alternative argument that
his social group could be defined as those who have committed
acts against and defied the INLA. That is far too nebulous a
group to be "particular".
The more subtle version of the applicant's argu
ment was that the Board erred in law in assuming
that the respondent had a well-founded fear of
persectution for reasons of membership in a social
group, when from the evidence it is clear that it
was the respondent's actions while a member of
the group and not his membership in the group
that was the basis for his fear of persecution.
There is superficial support for this contention
in the respondent's acknowledgement, from time to
time in the course of the proceedings, that he was
in danger of persecution as a result of the sentence
of death passed on him by the INLA kangaroo
court for his helping the hostages to escape. For
example, in his initial affidavit he stated that the
INLA is "known to react to anyone who they
think has interfered with their activities" (case,
vol. 1, at page 5). Nevertheless, a reading of the
whole of the evidence makes it clear that he
claimed that his danger stemmed more precisely
from his knowledge of the INLA's membership, of
their crimes and their structure, of their habits and
procedures. The INLA's real concern thus appears
to be not what he did, but that he might turn
"supergrass", a concept he described as follows
(case, vol. 4, at page 117):
A. It's like an informer to the extent that the person that is
informing has access to a lot of information as regards
' paramilitary activity in Northern Ireland. That makes
him a supergrass as opposed to the term grass.
He stated his case more fully as follows (case,
vol. 1, at page 18):
Q: Now, you indicated that at this point, because of the
organization and the activity of the organization, this
paramilitary organization, that • you still represent a
threat to them?
A: That's correct.
Q: In what way do you still represent a threat if you went
back to as you, said, Northern Ireland, or the Republic of
Ireland, or anywhere in Great Britain?
A: Well, knowing the structure of the organization, their
politics, and the way they conduct their military cam
paign, they would feel that if I was to return to either, as
I said to the Republic of Ireland or Northern Ireland or
Great Britain, that 1 could be persuaded to go "super-
grass" against them by pressures put on me by the British
Government, or otherwise; and, it's then that 1 would
constitute a threat, because they would feel that I would
know about certain incidents that took place, maybe
within Ireland, over a period of time, and was able to give
evidence. And as proved in the "supergrass system" of the
last two trials in Northern Ireland—a lot of the evidence
offered against people who were there was declared
untrue on re-trials, and stuff. So they still feel a threat
whether I know anything or not, that I may make up
evidence.
The INLA, he said, would be particularly alert to
the possibility that he "could be put under some
sort of pressure to give evidence against their
organization" (case, vol. 1, at page 22 and again,
vol. 2 at page 214). In my opinion, the true
gravamen of his fear springs from his membership
in the organization and not from his misbehaviour
as a member; in other words, the INLA's motiva
tion is not principally revenge for past ills (though
it may be that, too) but prevention of future ills.
Even if the evidence were not so clear, I must
admit I would be reluctant to define membership
so narrowly as to exclude all of its concomitants.
The death sentence passed on the applicant was,
after all, related to his membership: it was given
because he, as a member, countermanded and
actively contradicted his orders. In a paramilitary
organization, "membership" is to be more broadly
interpreted than in a more ordinary "social"
group.
I cannot therefore sustain the applicant's first
objection to the Board's decision.
The second error which the applicant alleged in
the Board's decision was in its definition of perse
cution. In particular, it was said that the law as
developed by this Court in Rajudeen v. Minister of
Employment and Immigration (1984), 55 N.R.
129; and Surujpal v. Minister of Employment and
Immigration (1985), 60 N.R. 73 is narrower than
that suggested by the international authorities fol
lowed by the Board.
It was admitted by the respondent that he had
no complaint against the governments of the
United Kingdom and Ireland in terms of their
willingness to protect him. His danger came not
from them, but from the long arm of the INLA
(case, vol. 2, at page 216):
Q. Just to get this clear, you are seeking refugee status
because you feel that the governments of the two nations
of which you are a national or a citizen, are unable or
unwilling to protect you?
A. Correct.
Q. From terrorists, most notably the INLA?
A. I am not saying that they would not offer me protection. I
am saying that sooner or later, they could walk around
with me everyday—
Q. You are saying that both countries would protect you?
A. They would try to but they would fail.
With respect to the authorities in the two Ire-
lands, the respondent put the problem this way
(case, vol. 2, at pages 161-162):
Q. I understand that, before we get to that point, what is
your experience with respect to the security and the
ability of the authorities in Ireland, North and South, to
protect their citizens from kidnapping or from attempts
at assassination?
A. Well, it is obvious that there is not a government in the
world that would stand up and say it cannot protect its
citizens. A simple matter about Northern Ireland and the
Republic of Ireland, in a lot of a cases they just cannot
protect their own personnel. They have lost thousands of
policemen and soldiers and civilians. They cannot protect
them, they cannot protect anybody and least of all,
somebody that had sympathies towards an organization
such as the IN LA.
Why should they protect them? There are people being
killed everyday of the week. So they cannot afford their
own security forces who incidentally are armed. They go
to their bed armed, they go to church armed, they go out
for a night out with their wife and children and they are
always armed. Unfortunately some of them get killed in
the process so they cannot afford their own protection.
Why can't they afford it? Because what they have in the
INLA is an underground movement. You do not know
°who your target is. You can sit in a bar and have a beer
and somebody speaks to you and the next thing you speak
out of turn and you know you are picked up.
You do not know your enemy. How can they arrest
somebody they don't know? How can they protect me
against a person they do not know? And that is the way
an underground movement operates. The majority of its
members are unknown.
I wish they could protect me but I know in my heart, and
anybody of any reasonable intelligence by reading the
press for the last 16 years knows that it is not possible.
The very Garda officer who prosecuted the case
in court against him advised him that he could not
be protected in either the North or South and that
he had to live somewhere else (case, vol. 1, at page
22—see also vol. 2, at page 159):
Q; How did you obtain your passport?
A: I obtained my passport through the case presenting offi
cer for the police, that was the officer that was involved
directly in the case, Kevin Carty.
Q: And how do you know that he obtained the passport for
you?
A: Because he had organized it. He came up to the Jail prior
to my release one day, the 16th of December, '85, organ
ized photographs; went to the passport office and got my
passport in Eire, and advised me not to stay in Ireland,
because they, obviously, have their own intelligence
resources too; whatever feedback they were getting told
them that I was, that I would have been harmed on
leaving prison, you know.
The Board accepted this evidence and held that
there need not be state complicity to constitute
persecution. It was sufficient for the Board that
the state was in fact unable to provide protection.
The Board professed to find a difference be
tween what Mr. Justice Stone said in Rajudeen
and what I wrote in Surujpal. In point of fact both
of those cases were rather different situations from
the case at bar, since in both cases the police were
indifferent to the persecution against the refugee
claimants; the only difference between the two
situations was that the aid of the police had actual
ly been invoked in Surujpal. In my view the dicta
in those cases should be read in relation to their
factual situations.
In the case at bar both British and Irish govern
ments are admittedly benign, and the factual ques
tion the Board addressed was whether they had the
ability to protect the respondent.
The touchstone of the meaning of persecution is,
of course, the definition of Convention refugee in
subsection 2(1) of the Act:
2. (1) ...
"Convention refugee" means any person who, by reason of a
well-founded fear of persecution for reasons of ... member
ship in a particular social group ...
(a) is outside the country of his nationality and is unable or,
by reason of such fear, is unwilling to avail himself of the
protection of that country...
These words do not necessarily import state com
plicity. The claimant must merely be "unwilling to
avail himself of the protection" of his country by
reason of his "well-founded fear of persecution".
Naturally enough, the usual case where a claimant
will not avail himself of his country's protection
will be where he is being persecuted by his
government.
The applicant contended that two situations
exhaust the possibilities of interpretation of para
graph (a): the claimant's inability to approach his
government because, e.g., of his location, and his
inability to obtain satisfaction from his govern
ment. The first situation was said to explain the
words is unable, the second the words is unwilling.
As a consequence, since there is no category appli
cable to the claimant in the case at bar, he is not
covered by the definition.
It seems to me that the applicant is probably
right that is unable means literally unable, i.e.,
unable even to approach. But I can find no war
rant for limiting the sense of is unwilling to a
single meaning. There may be several reasons why
a claimant is unwilling to avail himself of his
country's protection. The fact that there are two
clauses in the paragraph is insufficient reason for
holding that there are only two possible meanings,
one for each clause. In my view the logical conclu
sion is that there are at least two meanings, but
not necessarily only two. There can be a single
meaning for the first clause, and a multiple mean
ing for the second. There is no textual warrant for
a sharp dichotomy, or for defining the second
clause to require state involvement.
The applicant's further argument was that the
words "by reason of such fear" clearly refer back
to the "well-founded fear of persecution" found
above. So, in my opinion, they clearly do. But it
seems to me to be begging the, question to read
into the concept of a well-founded fear of persecu
tion that it must emanate from the state or at least
involve state complicity. That is the very issue, and
I do not find the words themselves self-explanato
ry.
The Board's interpretation of the definition is
supported by the Handbook on Procedures and
Criteria for Determining Refugee Status under
the 1951 Convention and the 1967 Protocol relat
ing to the Status of Refugees, Office of the United
Nations High Commissioner for Refugees,
Geneva, 1979. The Handbook's commentary on
the words "unable" and "unwilling" is as follows
(at page 23):
98. Being unable to avail himself of such protection implies
circumstances that are beyond the will of the person concerned.
There may, for example, be a state of war, civil war or other
grave disturbance, which prevents the country of nationality
from extending protection or makes such protection ineffective.
Protection by the country of nationality may also have been
denied to the applicant. Such denial of protection may confirm
or strengthen the applicant's fear of persecution, and may
indeed be an element of persecution.
100. The term "unwilling" refers to refugees who refuse to
accept the protection of the Government of the country of their
nationality. It is qualified by the phrase "owing to such fear".
Where a person is willing to avail himself of the protection of
his home country, such willingness would normally be incom
patible with a claim that he is outside that country "owing to
well-founded fear of persecution". Whenever the protection of
the country of nationality is available, and there is no ground
based on well-founded fear for refusing it, the person concerned
is not in need of international protection and is not a refugee.
The commentary on "unwilling" is too vague to
resolve its meaning, but in fact the Handbook
dealt with the issue directly when considering the
subject of "Agents of persecution" (at page 17):
65. Persecution is normally related to action by the authorities
of a country. It may also emanate from sections of the popula
tion that do not respect the standards established by the laws of
the country concerned. A case in point may be religious intoler
ance, amounting to persecution, in a country otherwise secular,
but where sizeable fractions of the population do not respect
the religious beliefs of their neighbours. Where serious dis
criminatory or other offensive acts are committed by the local
populace, they can be considered as persecution if they are
knowingly tolerated by the authorities, of if the authorities
refuse, or prove unable, to offer effective protection. [Emphasis
added.]
This passage was quoted by the Board ((1988), 9
Imm. L.R. (2d) 48, at pages 58-59).
In sum, I believe that taking into account (1)
the literal text of the statute, (2) the absence of
any decisive Canadian precedents, and (3) the
weight of international authority, the Board's
interpretation of the statutory definition is the
preferable one. No doubt this construction will
make eligible for admission to Canada claimants
from strife-torn countries whose problems arise,
not from their nominal governments, but from
various warring factions, but I cannot think that
this is contrary to "Canada's international legal
obligations with respect to refugees and ... its
humanitarian tradition with respect to the dis
placed and the persecuted".
The applicant - also argued that it is necessary to
exclude persons who were complicitous themselves
in the acts of the group now alleged to be persecu
tors. To the extent that this point has not already
been covered, I would say only that at best it raises
a question of fact for the Board to determine.
There may well be claimants who cannot claim to
be persecuted because they are themselves deemed
to be the persecutors. This is in fact another line of
defence for the Government, and in my view is the
kind of consideration which should be left to the
Board to determine on the facts.
I must therefore conclude that the applicant's
second objection is lacking in merit.
What I have classed as the applicant's third objec
tion to the decision of the Board is, in fact, an
amalgam of several points.
First of all, it is argued that the Board made an
erroneous finding of fact contrary to paragraph
28(1)(c) of the Federal Court Act when it asserted
that "no evidence was presented to the Board to
establish that the claimant is also a citizen of the
United Kingdom" (case, vol. 4, at page 446). The
respondent attempted to explain this by contend
ing that what the Board really meant was that the
respondent did not have an unequivocal right to
live everywhere in the United Kingdom. Perhaps
that is indeed what the Board meant, but in my
view it was in error in stating that there was "no
evidence" of his U.K. citizenship. The evidence
may have been ambiguous. but it was there (see,
e.g., case, vol. 2, at page 166).
Properly understood, I believe the ambiguity in
the evidence related to a normal concomitant of
citizenship in a country, viz, the right to enter it at
any time. There was evidence that British legisla
tion entitled The Prevention of Terrorism (Tem-
porary Provisions) Act 1974, dating from the mid-
seventies, gave the British Government the right to
refuse admittance to, or to remove from, Great
Britain (i.e., the United Kingdom less Northern
Ireland) any citizen who in the subjective opinion
of that Government was involved with unlawful
activity in Northern Ireland. None of this evidence
was presented by expert witnesses but it was
repeated again and again (e.g., Case, vol. 2, at
pages 166-168, 203 and 205), and was relied upon
by the Board in its decision (1988), 9 Imm. L.R.
(2d) 48, at page 54.
The Board might indeed (but did not) have
fastened upon this apparent British limitation
upon citizenship as itself an indication of a lack of
protection equivalent to persecution ("unable .. .
to avail himself of the protection of that country").
The Handbook (supra, at page 23) would support
such a view:
99. What constitutes a refusal of protection must be deter
mined according to the circumstances of the case. If it appears
that the applicant has been denied services (e.g., refusal of a
national passport or extension of its validity, or denial of
admittance to the home territory) normally accorded to his
co-nationals, this may constitute a refusal of protection within
the definition. [Emphasis added.]
However, because of its conclusion that the claim
ant's only countries of nationality were Ireland and
Northern Ireland, the Board answered only the
question whether the respondent had a well-found
ed fear of persecution in those areas and not in the
mainland of Great Britain.
The respondent argued that the fear of being
persecuted need not always extend to the whole
territory of a claimant's country of nationality.
This is supported by a citation from the Handbook
(supra, at pages 22-23), which is as follows:
91. The fear of being persecuted need not always extend to the
whole territory of the refugee's country of nationality. Thus in
ethnic clashes or in cases of grave disturbances involving civil
war conditions, persecution of a specific ethnic or national
group may occur in only one part of the country. In such
situations, a person will not be excluded from refugee status
merely because he could have sought refuge in another part of
the same country, if under all the circumstances it would not
have been reasonable to expect him to do so.
The test which the Handbook establishes, however,
is whether "under all the circumstances it would
not have been reasonable to expect him to do so".
Given this requirement of a judgment to be passed
on the circumstances, the absence of such a judg
ment by the Board because it did not address the
full question cannot in my opinion assist the
respondent. The applicant was, I believe, correct in
his assertion that the Board erred in law by failing
to consider whether the respondent had established
that he could not avail himself of the protection of
all his countries of nationality.
The applicant supported this by reference to a
provision of the 1951 Convention on refugees and
an excerpt from the Handbook, which is as follows
(supra, at page 24):
(7) Dual or multiple nationality
Article 1 A(2), paragraph 2, of the 1951 Convention:
In the case of a person who has more than one nationality,
the term "the country of his nationality" shall mean each of
the countries of which he is a national, and a person shall not
be deemed to be lacking the protection of the country of his
nationality if, without any valid reason based on well-found
ed fear, he has not availed himself of the protection of one of
the countries of which he is a national."
106. This clause, which is largely self-explanatory, is intended
to exclude from refugee status all persons with dual or multiple
nationality who can avail themselves of the protection of at
least one of the countries of which they are nationals. Wherever
available, national protection takes precedence over interna
tional protection.
Although this part of the 1951 Convention has not
been incorporated into Canadian law, I am never
theless prepared to say that the clear meaning of
the definition of Convention refugee in subsection
2(1) of the Act is that a refugee claimant must be
unable or unwilling to avail himself of the protec
tion of all countries of nationality. For support we
need go no further than to subsection 33(2) of the
Interpretation Act: "Words in the singular include
the plural." To my mind the question is not wheth-
er the Board was wrong, for it was, but whether its
error was material.
The respondent contended that a finding that he
was a national of both the U.K. and Ireland, could
not have resulted in a different determination by
the Board as to Convention refugee status. It is
true that the evidence is roughly equal as to his
danger in both Great Britain and the two parts of
Ireland: Case, vol. 1, at page 22; vol. 2, at pages
162, 166-168, 186, 203, 205, 214; vol. 3, at pages
272, 274 and 302-304. Does it therefore follow
that the Board should be presumed to have made
the same decision with respect to persecution in
Great Britain that it made in relation to both parts
of Ireland?
Unfortunately the Board fell into another error
as well when it stated that the applicant "did not
establish either the claimant's right to live in Brit-
ain or the claimant's right to citizenship in the
United Kingdom, (1988)" 9 Imm. L.R. (2d) 48, at
page 54. The applicant has no such onus, since
subsection 8(1) of the Act places the burden of
proof as to a claimant's right to come into Canada
on the claimant. Even though this error expressly
relates only to Great Britain, and so might be said
merely to compound the Board's previous error,
errors as to onus in assessing evidence are peculiar
ly unsettling, and cannot escape notice on review.
A decision that a stable, law-abiding and demo
cratic state does not have the ability to protect its
citizens from criminal or subversive elements is not
one to be reached lightly, and must certainly be
made with a correct application of the burden of
proof.
In my view it is therefore necessary that the
issue as to whether the respondent can avail him
self of the protection of the United Kingdom be
returned to the Board for their determination of
this issue.
In the result the section 28 application must be
allowed, the decision of the Immigration Appeal
Board of December 2, 1988 set aside, and the
matter returned to the Board for its determination
whether the respondent is unable or, by virtue of a
well-founded fear of persecution for reasons of
membership in a particular social group, is unwill
ing to avail himself of the protection of the United
Kingdom.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.