40 The Law of Refugee Status Essentially, Canadian law prescribes a “but for” test: Would the claim- ant be similarly at risk of serious harm but for her civil or political status? First, there must be some causal connection between civil or political status and risk.® Where an applicant belongs to a minority group, but there is no demonstrable nexus between that fact and her fear of persecution, the claim cannot succeed. Thus, applications have been dismissed where the denial of ‘employment was the result of incapacity rather than coincidental adverse Political opinion;*" where the claimant’s religicn could not be related to his fear of assault; and where detention occurred at a time when the state could not have known of the applicant's ideology. On the other hand, it is not required that the totality of the risk faced by the claimant be specific to persons of her civil or political status, As discussed in Chapter 3, persons already at generalized risk may nonetheless succeed ona claim to refugee status if some element of differential intent or impact based on civil or political status is demonstrated.» The landmark decision of the Federal Court in Zahirdeen Rajudeen'® rejected the Immigration Appeal Board’s finding that the Sri Lankan claimant was not a refugee because the harassment he faced was simply the product of generalized civil unrest. While acknowledging the context of generalized violence, the Fed- eral Court nonetheless found for the claimant because he faced a heightened tisk as a result of being both Tamil and a Muslim. The “but for” test thus requires only that the particular level of jeopardy faced by the applicant be linked to civil or political status, not that the waole of the risk be uniquely associated with that status, ‘The particular historical context which led to the linkage between refugee- hood and civil or political status notwithstanding, the analysis which fol- ows will show that it is largely possible for a liberal interpretation of the five enumerated grounds to sustain the Convention’s vitality.2” By contour- ‘Manuel Jesus Torres Reyes, Immigration Appeal Board Desision 75-1063, October 23, 1975, 86, per R. Tremblay; seaside on other grounds bythe Federal Court of Appeal on October 28, 1976; claim ultimately rejected by the Immigration Appral Board on December 20, 1976. » The recent decision ofthe Federal Coutt of Appeal in Attorney General of Canada v, Patrick Francis Ward underscores the importance of a linkage between fear of persecution and the ‘enumerated grounds in the Convention: Federal Court of Appeal Decision A-t190-8, at 15, ‘Per Urie J; leave to appeal granted by the Supreme Court of Canada on November 8, 1930. Supreme Court Bulletin 2347, 2 Fernando Alfonso Naredo Arduengo, Immigration Appeal Bosrd Dession T80-9159, CLALC. Nowes27.13, November 20,1980, a3; set aside on other grounds by the Federal Court of Appeal at (1981) 130 D.L.R. (3d) 782, December 18, 198; claim ulimately rejected by the Immigration Appeal Board on April 15, 1985. 2 Dionisio Nunes Esteves, immigration Appeal Board Decision T87-9304X, September 15, 1987, 2% Ajit Singh, immigration Appeal Board Decision 783-9208, October 15, 1987, at 3. 2 See text supra at Section 3.25, expecially at note 175 f. » Rajuceen ¥. Minister of Employment and Immigration (1985), * @R. 129 (FCA) * Inimigration Appeal Board Decision V83-6091, C.L.1.C. Notes 37.4 uly 20,1983, a, Nexus to Civil or Political Status M1 ing the bases for claim so as to identify instances of fundamental disfran- chisement in which deference to national remedies for human rights violations is not viable, refugee law can remain meaningful to the modern victims of socio-political marginalization.» 5.1 Race The first form of disfranchisement within the scope of refugee law is that based on race. While the drafters of the Convention did not specifically define the term, the historical context makes clear that their intent was to include those Jewish victims of Naziism who had been persecuted because of their ethnicity, whether or not they actively practised their religion.** This histor- ical rationale is important, because it leitimizes the attribution of a broad social meaning to the term “race” which includes all persons of identifiable ethnicity.‘ As Atle Grahl-Madsen has observed, the Convention’s notion of race includes not only persons at risk by reason of their membership in a particular scientific category, but also other groups such as Jews and Gyp- sies whose physical or cultural distinctiveness has caused them to suffer sceial rejucdice.*! The possibility of overlap between race and other enumerated ‘factors such as religion, nationality, and membership of a particular social “Boup is thus clear, but presents no real problem since claims may be besed on‘one or a combination of forms of civil or political disfranchisemert.#? fn our times. . ”: I. Foighel, “Legal Status of the Boat People" (1979), 48 Nordisk Tidserift for Intl, Ret. 217, at 222. 2» "Although the Convention seems to limit considerably the scope of refugees by enumera ing five factors for their persecution, in fact it establishes rather broad categories": ¥. Shimada, ‘The Concept of the Political Refugee in International Law” (1975), 19 Japanese Ann. nt! L. 24, at 33. » Grahl-Madsen suggests that the reference to “race” is derived from SHAEF Administra tive Memorandum Number 39 which was ‘simed at helping the Jewish vietims of Nati pers «ution, of whom some were persecuted because of their Jewish race, some because of this Jewish ‘religion, aitd some for both reasons": 1 A. GrahhMadsen, The Status of Refugees in Intema. tlonal Law, p3. 217-18 (1966). Accord P, Hyndman, “The 1951 Convention Definition of Refu ‘eee: An Appraisal with Particular Reference to the Sri Lankan Tamil Applicants” (1987), 9 ‘Human Ris, Q. 49,.at 69, “© “(Elthnicity is prabably the background of the more dubious term ‘race"”: I. Foighel supra, note 37, at 222 ‘The origin ofthe phrase makes it quite clear that the word ‘race’ in the present context denotes not only the major ethic groups, such as Europeans (‘the white race’), African ("he black race’), Mongols (‘the yellow race’), Red Indians, etc., but also groups which are less es. ily differentiated, such as Jews, gpsies (sic) ec, In the present context the word ‘rac’ is there ‘fore refering to social prejudice rather than to a more or les scientific division of mankira In other words, the term ‘race’, as used in Artile IA(2), isa social more than an ethnographic concept, and is applicable whenever a gerson is persecuted because of his ethnic origin" Grahl-Madsen, supra, note 39, p. 218. (4 ‘© “It is immaterial whether the persecution arises from any single one of these reasons of from a con: @j/on.of two or more of them. Often the applicant himself may not be aware of the reasons the persecution feared, It isnot, however, his duty to analyse his case toaa The Lam of Refuse Situs gy ‘A broad interpretation of race is not only historically.defensible, but is moreover consistent with modern international usage."? The widely accepted International Convention on the Elimination of All Forms of Racial Discrimination, for example, defines “racial disc:imination”” as including differential treatment based on “race, colour, descent, or national or ethnic origin’. In the refugee context, the clear majority of delegates to the Con- feretice on Territorial Asylum similarly agreed to extend protection to per- sons persecuted for reasons of “‘race, colour, national or ethnic origin’’.*¢ ‘The Executive Committee of the UNHCR adopted this perspective, and has recommended a comprehensive definition of race to states: ‘Race in the present connexion, has to be understood inits widest sense to include all kinds of ethnic groups that are referred to as ‘reces”” in common usage. Frequently, it will entail membership of a specific social group of common descent forming a minority within a larger population.” ‘This UNHICR.derived interpretation has been explicitly adopted into Cana- dian law in a series of decisions commencing with Boleslaw Dytlow, ‘as well as in immigration policy guidelines.©® The relevant case law has equated race with “ethnic background”,® “heritage”,*! and ‘distinct minority” status. "Given legal developments affecting tis topic over the las thirty year, the broad mesa ing can be considered valid also forthe purposes of the 1951 Convention": G. Goodwin-Gi ‘The Refuges in International Law, p- 27 (1983). Among those Grodwin-Gill considered as within this broad meaning are Asian Ugandan, the Hutu from Burtndi, ethnic Chinese from Viet~ ham, and backs from South Aftica ‘GLA. Res, 2106 A (XX), December 21, 1965, entered into fore January 4, 1969. This Cox ‘yention hasbeen adhered to by 127 state, including Canada: J-B. Marl, “International Ins ‘ents Relating to Human Rights; Classifiaton and Chart Showing Raifiations as of! January, 1989" (1989), 10 Human Res. LJ. 103. Id, at Art 10). {1 UN. Doe. A/CONF.78/12, at Art ()@). Tas amendment was co-sponsored by Algeria, -Baypt, rag, Jordan, Kuwalt, Libya, Morocco, Saudi Arabia, Somalis, Syria, ané Yemen, and ‘nas adopted by a vote of $0 in favour, 19 opposed, and 12 abstaining: F. Leduc, ‘L'Asile Teuton et a Conférence des Nations Unies de Genbve, Jair 1977" (1977), 23 Ann. fr ‘aise de droit intl. 221, at 248. ‘© UNHCR, supra, note 42, p. 18. ‘immigration Appeal Board Decision VB7-6040X, July 7, 1987, at 1-2, per A. Wlodyks; affirmed without comment by Federal Court of Appeal Decision A-S69-87, April 13, 1988. See tlso Sylota and Patryeye Dytlow, Immigration Appeal Board Decision VB7-6361X, Ostober 29, 1987; Stanislaw Dyrlow and Krystyna Pawlowksa, Immigration Appeal Board Decision ‘¥86-6268/6270, December 28, 1988, ‘ Racele aid o dente “not only major ethne groups such esLask, white European, fan, ete. but also embraces the social concept e.g. Jews, Gypsies, particular tribe or minority, talal or ethnic": Canada Employment and Immigration Commission, Immigration Manual, at LS, 13.07(X@Y0, June 1980. © Piere Katanku Tshicbu Tehibote, Immigration Appeal Board Decision M84-1074, May 30, 1985, at 4, per P. Daves. +: Gangonee Jenet Permanand, Immigration Appeal Board Decision T87-1016T, August 10, 1987, at 1, per P. Ariemma. "2 Boleslan Dytlow, lmsngration Appeal Board Decision VS7-6040X, July 7, 1987, at 2, per Oe a hay ‘Among those whose claims have been dealt with on the basis of race are [bos from Nigeria,® the Mohajirs of Pakistan,** the Baganda from Uganda, * Guyanese of East Indian descent,‘ Tamils from Sri Lanka, the Baluba from: Zaire, and Gypsies of Polish origin.’ The primary notion which unites these ‘groups is their exclusion from state protection based on identifiable ethnicity. ‘The equation of race with minority status must be viewed in the contex: of effective political power, not just numbers, Since refugee law is concerned with the absence of protection rather than with minority status per se, the members of a country’s ethnic majority may be protected as racially defined refugees if they are disfranchised in terms of respect for core human rights. In Plorre Katanku Tshiabn Tshihola,® for example, the Immigration Appeal Board accepted the claim of a Baluba from Zaire. It noted that while the Baluba constitute half the population of that state, the Ngwandi ethnic group holds effective power, thereby creating a risk of oppression for the Baluba. Similarly, in the case of Ganganee Janet Permanand* the Board observed: ‘The Indo-Guyanese community to which the claimant belongs is the largest in number in Guyana, The numerical majority, of course, does not necessarily ‘guarantee immunity from persecution by a minority holding the power of the State. “ane can similarly imagine the extension of this principle to blacks in South “Afjica,© and to other ethnic groups denied effective political voice within ‘thelr country of origin. Majority status alone does not negate a claim to racially defined refugee status if discernible ethnicity gives rise toa genuine risk of serious harm not remediable by national protection. 7 Toney Aden Ade Imicton Apps Board Dessin 795057, Mach, 1579. oe ea mad amigton Apa Boxed Deion 71197, Noverber 3,197 oes tae Mpg! igraion Appel Board Deon 0-254, August 13, 98, eae tea oiraon Appeal oar Deion TS 1,Januay 198% Comer ath taaation Appeal Board Deron 72-1585, Janiay 18,1986 hare Jerome ‘arco emigration Appel Board Deion T2505, June 21, 184, Gangone Jone ‘Permanand mignon Appeal Board Deon TS7-106t, Aug 1,187 rahe Eonaremarty, teangraton Appel Boers Decision TED9736, Jur, peu, Accord. Hyadoan, supra, ote 39, a 2 ‘sce Rott Tg Tool, Iman Apes BosedDesson MB41074 May 20, 1985, Bot Dylon Irmiration Appeal Bond Decision VE7-SO4X, July 7,987, Timed without ommeat in Federal Court of Appeal Decision A687, Api 13,1988; Si and unooe Bytom, Immigration Appeal board Declan VE7-636IX, Octet 2, 18T; Robert ‘Daron, imigrion Appa ara Destin VEr-S21X, anry 5,188 Stnlew Bro» 2.7 Roaina Pantomatr Immigration Appeal Bond Deion VEG 6260/6270, December 26, 1, A immigration Appeal Board Deiidlgfi0, May 30,1988. © tmmigaon Appa! Beard Deson THYI067, Ago 10, 1987 faa Tp. Alen 2 and Case ofthe Refugee Problem andthe Iteration! Response, in A Nash144 The Law of Refugee Status 5.2 Nationality Closely linked to the notion of race or ethnicity is the concept of national- ity, As in the case of race, the drafting history of the Convention offers no specific definition of nationality. The early commentators assumed a nar- row meaning of the term, roughly equivalent to formal citizenship, leading to the obvious question of why a state would choose to persecute its own citizens merely by reason of their status as citizens. A slightly more expan- sive interpretation of citizenship, however, sugzests a number of situations in which distranchisement on the basis of formal pulitical status is con- ceivable. First, resident internationally unprotected persons, such as refugees and stateless persons, might be the objects of human rights abuse by reason of their status as “foreigners”. While inbabitan:s who retain the formal and effective citizenship of another state could not advance a claim to refugee status in relation to the state of domicile,’ those who cannot enjoy meaningful protection elsewhere are properly assessed as refugees in accordance the concept of state of former habitual residence. Second, persons who are denied full citizenship ip their own state uch as Palestinians in Israel) could qualify as nationally defined refugees insofar as their inferior political sta- tus ean be shown to put them at risk of persecution. Third, some states may disfranchise a portion of their population by ascribing a different nationcl- ity to them (as in the case of the black ‘“homelends” in South Africa), and ‘establishing regimes which fail to guarantee basic human rights to those assigned the new “nationality”. Fourth, persecution based on nationality might arise in the context of a state composed of previously sovereign terri- tories (such asthe U.S.S.R.), where measures ar= directed against those who define their nationality in terms of allegiance to the predecessor state 1m addition to notions of formal nationality tis generally suggested that nationality encompasses linguistic groups and other culturally defined %N, Robinson, Convention relating to che Storus of Refugees: ls History, Contents and Interpretation, p. $3 (1952). 414, Accord C. Pompe, “The Convention of 28 July 1951 and the International Protection of Refugees”, [1986] Rechtsgeleerd Magazyn Themis 425, published in English as U.N. Doc. HR/INF/42, May 1958, at 9: “How persecution on erounds of nationality comes in is not ‘ult lear, asthe refuge either posseses or did posses) thenationalty ofthe county in which he fears persceution, or was settled there asa stateless person.” ‘+ Perection for ‘reasons of nationality’ is also understood to include persecution for lack ‘of nationality, that is: persecution of stateless persons”: 1. GrahlMadsen, The Status of Refugees in International Lam, p. 219 (1966). * Such persons would not havea well-founded fear of persecution in relation to their coun- try of nationality, and would therefore fall to meet the alleaage requirements of the Conven- tion definition, See Section 2.4, supra, See Sesion 2.5.2, supra Accord G. Goodwin-Gil, The Refugee in | @ational Law, p. 29 193). 1W collectivties,¢® thus overlapping to a significant extent with the concept of race." Because many such groups share a sense of political community dis. tinct from that of the nation state, their claims to refugee protection may reasonably be determined on the basis of nationality as well as on raze. 5.3 Religion Religion as defined in international law” consists of two elements. First, individuals have the right to hold or not to hold”? any form of theistic, non- theistic, or atheistic bélief.? This decision is entirely personal: neither the state nor its official or unofficial agents may interfere with an individval’s right to adhere to or to refuse a belie system,”* nor with a decision to chenge one’s beliefs.7* Second, an individual's right to religion implies the ability to live in accordance with a chosen belief, including participation in or absen- The term naonality inthis contexts not to be understood oly a einen. Isefes ats to menership ofan enc orlinguisti group. .°”: UNHCR, supr, noe 2, p18. cord ‘A. Oralsfaden, supra, note 6.216; G. Coodwin-Oil supa, noe 6, p29; 8. Tames, “The Boat People's Are They Refugees?” (198), Human Rs, Q 348, e266 C Wey etki, Canadian Irieration Law and Procedure, p. 327 (983). al. Theterm ‘national’ generally receives brand interpreation and can overlap wih ome hike other grounds. Ie is wtall taken to ich, a8 well as czensip, members of spec txhntor gust groups and may oecasonally overlap with the erm race" P, Hyndman “The 1981 Convetion Definion of Refugee” (1967), 9 Human Ris. Q. 9, at 70, Accord UNHCR, supre noe 42, p. 18 >! Seeinpartclar Univeral Declaration of Human Rights, U.N.G.A. Res. 217A dl), Deen ber 1, 1948 ("UDR"), a At. 18: International Covenant on Civil ad Pole Rh UN.G.A. Res. 200 XX, December 19,196, entered into force March 33, IS("ICCPR"), a Art. 1; Declaration onthe Elimination of Al Forms of Intolerance on of Discrimination Based on Relsion or Belief, UN.G-A. Res. 36/55, November 25, 1981 (“Declaration "The rexurgence of religious fundamentalism in many parts of the wrld wil undoubtedly ve seo refugee clams grounded in teprisls for filet tdopt the offical ology. See 2 Rio, supra, note 63, p. 111 * Draft fyematonal Convention on the Elinination of All Forms of Infleance and of Discrimination based on Religion or Bele, U.N. Doc. E/1980/13 (Draft Convention", x ‘Axi I@). This draft convention received overwhelming suppor inthe Unites Nations Com. rision on Haman Rights, but has not been adopted. "No one shall bespbjct to coercion whch would impair his rewdom to have ort adopt 8 religion o bel of hig aholee": ICCPR, supra, note 71, at Art. 180). Accord Delran, supra, note 71, at Art 12). In contrast, some Canadian decisions have hel thatthe appa tion of official pressure to renounce a religion is not sufficient to constitute a claim to reaee status Leck Jontowski, Immigration Appeal Board Decision VEO 6410, CL... Notes 2611, January 3, 1981; Radovan Sumer, Imnization Appeal Douré Desi VBI-S16, May 25,181. 7 Drafl Convention, sypr, note 73, t Art Il). The isue of apostasy was consiered by ‘he Immigration Appeal Board in the case of Adel Moharumed Bakr Mohamed, an Eayptian sho hi converted rom Ila to Criinity. While evidence of genuine isk was found ing inthe particular circumstances, the Bod aprears to have accepted the principe that ref ‘protein could appropriately be een to persons with an apprehension of persecution duet thee dea to change reo: Iamiration Appel Board Dession VB.6168, Noverber 16, 1988, at