Membership in a Particular Social Group as a Basis for a Well-Founded Fear of Persecution - Framework of Analysis

Membership in a Particular Social Group as a Basis for a Well-Founded Fear of Persecution - Framework of Analysis

Immigration and Refugee Board
Ottawa, Canada

December 1991

Issue

When is the ground of "membership in a particular social group" applicable?

What constitutes a "particular social group"?

Application

"Particular social groups" have been defined by:

            kinship ties, colour, gender and clan or caste;

            past economic, social or professional status - e.g. the bourgeoisie, the peasant landowning class, civil servants;

            membership in associations such as labour unions, political organizations, certain clubs or societies.

Basic Considerations

1.         The member of the group is unable, by his/her own actions, to disassociate himself/herself from the group (involuntary membership).

2.         Affiliation with the group is so fundamental to the person's identity and human dignity that the person ought not to be required to disassociate himself/herself from that group (voluntary membership).

3.         Group size is irrelevant; the characteristic defining the group may be shared by many or a few.

4.         The fact that the group has a criminal record does not necessarily exclude the claimant from protection as a refugee. There must be ample evidence of the claimant's complicity in the criminal acts of that group.

5.         The overriding objective in the application of "particular social group" is the protection of group members who have a well-founded fear of persecution.

6.         A claimant is not required to show that he/she has been "singled out" or "targeted" for persecution.

7.         The crucial test is not whether the claimant is at greater risk of social group-based persecution than any one else in the country, but whether what he/she fears is sufficiently serious to constitute persecution.

Framework of Analysis

1)         Ascertain the applicable ground(s) of alleged persecution.

dealing with "membership in a particular social group" may be necessary only if the other four grounds do not apply.

2)         Identify the group in question and determine, for the purposes of assessing the nature of membership, whether such group is defined by either

a)         an internal characteristic, which might be:

1)         innate (gender, colour, kinship ties, etc.); or

2)         immutable (past economic or social status, etc.); or

3)         fundamental to members' identity/human dignity; or

b)         external perceptions, in situations where

1)         a group formed purely for recreational purposes, for example, may be externally-defined by the perceptions of those outside of it (i.e. the potential persecutor) as having a political purpose or posing a danger of some kind; or

2)         external forces may believe that a group exists although no such putative group actually does. A state may perceive, for example, that certain individuals are conspiring to overthrow the government. The group is thus defined on the basis of the state's labelling of those persons as the "conspirators."

just as a government imputes a political opinion to an individual, so does it impute it to a group.

3)         Determine whether the claimant possesses the characteristic(s) of the identified group in order to be recognized as a member of that group.

4)         Determine whether the "particular social group" of which the claimant is a member has been persecuted or faces a reasonable possibility of persecution.

5)         Determine whether the claimant himself/herself has good grounds for personally fearing persecution by reason of his or her membership in that "particular social group."

Relevant Authorities

a. interpretive principles

"...the ground `membership in a particular social group' is a ground which must be given a broad and liberal interpretation in order to protect groups or individuals who do not necessarily have political, religious or racial ties at the root of their fear of persecution... Therefore, the Board finds that a family does constitute a social group and the applicant's claim, based on his family affiliation, does bring him within the definition of Convention refugee as `a member of a particular social group'." Requena-Cruz, Richard Cid v. M.E.I., IAB 83-1059 (8 April 1986), p. 5, per Vidal.

"...it is clear from [the] evidence that applicant's treatment in Chile was attributable to...the allegedly political activities of the Sports Club of which he was President [and]...there can be no doubt that the `Sports Club' was a `social group' as that term is used in the definition." Astudillo v. M.E.I. (F.C.A. no. A-650-78), 5 October 1979, p. 4, per Heald J.A.

"...whatever the characteristic that defines the group, it must be one that the members of the group cannot change, or should not be required to change because it is fundamental to their individual identities or conscience. Only when this is the case does the mere fact of group membership become something comparable to the other four grounds of persecution." Matter of Acosta, Interim Decision 2986 (U.S. Board of Immigration Appeals, 1985), pp. 38-39.

"...the essential element in any description [of a social group] would be the factor of shared interests, values, or background - a combination of matters of choice with other matters over which members of the group have no control." Goodwin-Gill, The Refugee in International Law (Oxford: Clarendon Press, 1983), p. 30.

b. standard of proof

"...the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged." Salibian and M.E.I. [1990] 3 F.C. 250 (C.A.), p. 8, per Décary J.A.

"Where the applicant makes a claim on the basis of being a member of a particular social group, evidence regarding the experience of other members of that group is material to the applicant's claim." Arrechea Gonzalez v. M.E.I. (F.C.A. no. A-899-900), 9 April 1990, p. 6, per Desjardins, J.A. It should be noted that this judgment concerns a claimant who was found at initial hearing to have no credible basis for her claim.

NOTE: For further discussion and reference to case law and scholarly analysis, see IRB Preferred Position Paper, "Membership in a Particular Social Group as a Basis for a Well-founded Fear of Persecution", December 1991.