Date: 19990112
Docket: A-772-96
CORAM: STONE J.A.
STRAYER J.A.
DÉCARY J.A.
BETWEEN:
SHYSTA-AMEER ALI
(a.k.a. Shasta Ameri Ali; Shasta Ameer Ali)
AMINA ALI
BELAL ALI
SOLIMAN ALI
(a.k.a. Solaiman Ali)
Appellants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, Tuesday, January 12, 1999
Judgment delivered from the Bench
at Toronto, Ontario on Tuesday, January 12, 1999
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.
Date: 19990112
Docket: A-772-96
CORAM: STONE J.A.
STRAYER J.A.
DÉCARY J.A.
BETWEEN:
SHYSTA-AMEER ALI
(a.k.a. Shasta Ameri Ali; Shasta Ameer Ali)
AMINA ALI
BELAL ALI
SOLIMAN ALI
(a.k.a. Solaiman Ali)
Appellants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario on
Tuesday, January 12, 1999)
DÉCARY J.A.:
[1] The question at issue in this appeal under section 83 of the Immigration Act is that certified by McKeown J. in the following terms:
| Are refugee claimants excluded from the definition of Convention refugee if all groups in their country, including the group of which they are members, are both victims and perpetrators of human rights violations in the context of civil war?1 |
[2] Counsel for both parties agree that the question as framed cannot but be answered in the negative. The question as posed implies a rationale which, in the view of the Motions Judge, the Board did not employ. In fact, the rationale it puts into question was adopted by neither the Board, the Motions Judge, nor by either counsel and an answer therefore cannot in any way be determinative of this case.
[3] The test for persecution in a civil war context has been set out by this Court in Salibian v. Canada (Minister of Employment and Immigration)2, and in Rizkallah v. Canada (Minister of Employment and Immigration).3
[4] That test has been described as the "non-comparative approach" by the Chairperson of the Immigration and Refugee Board in Guidelines issued on March 7, 1996 pursuant to subsection 65(3) of the Immigration Act. These Guidelines address "refugee claims related to civilian non-combatants fearing persecution in civil war situations" and the relevant passages, with which we agree, are found at page 6:
| Non-comparative Approach |
| The non-comparative approach to the assessment of a claim is the approach advocated in these Guidelines. This approach is more in accord with the third principle set out in Salibian, the decisions of the Court of Appeal in Rizkallah and Hersi, Nur Dirie, as well as the wording of the Convention refugee definition. With this approach, instead of an emphasis on comparing the level of risk of persecution between the claimant and other individuals (including individuals in the claimant's own group) or other groups, the Court examines the claimant's particular situation, and that of her group, in a manner similar to any other claim for Convention refugee status. |
| The issue is not a comparison between the claimant's risk and the risk faced by other individuals or groups at risk for a Convention reason, but whether the claimant's risk is a risk of sufficiently serious harm and is linked to a Convention reason as opposed to the general, indiscriminate consequences of civil war. A claimant should not be labelled as a "general victim" of civil war without full analysis of her personal circumstances and that of any group to which she may belong. Using a non-comparative approach results in a focusing of attention on whether the claimant's fear of persecution is by reason of a Convention ground. |
[5] The Board's decision was made before the issuance of these Guidelines. While one might question some of the wording used by the Board in its reasons, we are of the view, as was McKeown J., that the Board essentially applied the proper test and that there was no ground for judicial intervention.
[6] The appeal will be dismissed.
"Robert Décary"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-772-96
| STYLE OF CAUSE: SHYSTA-AMEER ALI |
(a.k.a. Shasta Ameri Ali; Shasta Ameer Ali)
AMINA ALI
BELAL ALI
SOLIMAN ALI
(a.k.a. Solaiman Ali)
| Appellants |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| Respondent |
DATE OF HEARING: TUESDAY, JANUARY 12, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: DÉCARY J.A.
Delivered at Toronto, Ontario
on Tuesday, January 12, 1999
APPEARANCES: Mr. Micheal Crane
| For the Appellants |
Mr. Jeremiah Eastman
For the Respondent
| SOLICITORS OF RECORD: Micheal Crane |
Barrister & Solicitor
166 Pearl Street, Suite 200
Toronto, Ontario
M5H 1L3
| For the Appellants |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
| FEDERAL COURT OF APPEAL |
| Date: 19990112 |
| Docket: A-772-96 |
| BETWEEN: |
| SHYSTA-AMEER ALI |
| (a.k.a. Shasta Ameri Ali; Shasta Ameer Ali) |
| AMINA ALI |
| BELAL ALI |
| SOLIMAN ALI |
| (a.k.a. Solaiman Ali) |
| Appellants |
| - and - |
| MINISTER OF CITIZENSHIP AND IMMIGRATION |
| Respondent |
| REASONS FOR JUDGMENT |
| OF THE COURT |
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