I. (F.P.) (Re) Convention Refugee Determination Decisions

I. (F.P.) (Re)
Convention Refugee Determination Decisions (1990) C.R.D.D. No. 237
No. C89-00270

Immigration and Refugee Board of Canada Convention Refugee Determination Division Calgary, Alberta

Panel: E.D. Pask and E. Bryant

In camera

Heard: November xx, xx, December xx, 1989;

March xx, xx, xx, xx, 1990

Decision: June 6, 1990

German Federal Republic (DEU) – Negative – Males – Causes of flight – Credibility – Exclusion clauses – Internal flight alternative – International refugee law – Nationality – Passports – Persecution for political opinion – Persecution of family members – Political activities in exile – Political activities – Procedural requirements – Standard of proof – Stateless persons.

Appearances:

Tita DeRousseau, for the claimant(s).

Velten Pilger, Refugee Hearing Officer.

REASONS FOR DECISION

These are the reasons for the determination of the claim to be a Convention refugee made by xxx, a person of Polish origin who had received refugee status in West Germany. The claimant based his claim on political opinion and membership in a particular social group.

The hearing into the claim was held in Edmonton, Alberta, on November xx and xx, 1989, December xx, 1989, March xx, xx, xx and xx, 1990. On November xx and xx, 1989, the claimant was represented by Ms. Tita Derousseau, Barrister and Solicitor. On December xx, Ms. Derousseau applied to be removed as counsel of record due to irreconcilable differences between herself and her client as to how to conduct the case. The claimant agreed that such irreconcilable differences existed. This application was granted. The hearing was adjourned and re-scheduled well into the future to allow the claimant to obtain new counsel. It was the decision of the Division that new counsel would receive the transcript of the hearing to date in order to carry on from this point in the proceedings when the hearing was reconvened. On March xx, 1990, the claimant advised the Division that he would be acting as his own counsel. The Division agreed to proceed but advised the claimant that it would consider a request by him for counsel at any point during the proceedings.

In accordance with section 69.1(5)(b) of the Immigration Act, the Minister notified the Division of her intention to take part in the proceedings as the Minister was of the opinion that matters involving the exclusion clauses contained in section F of Article 1 of the Convention were raised (exhibits M-1, M-2). The representative of the Minister was Mr. John Petryshyn, Appeals Officer, Barrister and Solicitor.

The Division was assisted by a Refugee Hearing Officer, Mr. Velten Pilger.

Witnesses for the claimant were Mr. xxx and Mr. xxx. The witness for the Minister's representative was Mr. xxx, xxx xxx (xxx). The witness for the Division was Mr. xxx, xxx xxx.

Observers in attendance with the permission of the claimant were xxx (November xx and xx, 1989) and xxx (November xx and xx, 1989 and March xx –xx, 1990). Ms. xxx was permitted to observe because counsel for the claimant indicated that she would not be called as a witness.

Mr. xxx is referred to hereafter as the claimant except when evidence concerning questions of identity makes the use of surnames necessary.

1.PRELIMINARY ISSUES

The Division dealt with two preliminary matters at the beginning of the hearing.

The first concerned the jurisdiction of the Division to hear this claim. The Division reserved its decision regarding this issue and it will be dealt with below.

The second preliminary matter related to applications from members of the public to attend and report the proceedings as outlined in section 69(2) of the Immigration Act.

1.1Jurisdiction

At the outset of the hearing, the Minister's representative gave notice that he intended to make a preliminary argument with regard to the jurisdiction of the Refugee Division at this hearing.

1.1.1.Issue

The Minister's representative argued that the decision of the adjudicator and the member of the Refugee Division at the initial hearing was wrong in that they considered the claimant's case with respect to West Germany but not with respect to Poland.

The Minister's representative argued that if the claimant is a citizen of Poland such that Poland constitutes the claimant's country of nationality, both the initial hearing and the present hearing i.e. the second, full hearing before the Refugee Division, must deal with the claim in the context of Poland.

Subsections 46.01(1)(a) and ss. 46.01(2) of the Act were cited as follows: (Chapter 28 of the Immigration Act, as enacted by R.S.C. 1985 (4th Supp).)

46.01(1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if

(a)the claimant has been recognized by any country, other than Canada, as a Convention refugee and has been issued a valid and subsisting travel document by that country pursuant to Article 28 of the Convention;…

46.01(2) Notwithstanding paragraph (1)(a), a person is eligible to have a claim determined by the Refugee Division if, in the opinion of the adjudicator or the member of the Refugee Division considering the claim, the person has a credible basis for a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion in the country that recognized the person as a Convention refugee.

The French version of 46.01(2) reads as follows:

46.01(2) L'alinea (1)a) ne fait pas obstacle a la recevabilite de la revendication si l'arbitre ou le membre de la section du statut estime que le demandeur craint – et cette crainte a un minimum de fondement – d'etre persecute du fait de sa race, de sa religion, de sa nationalite, de son appartenance a un groupe social ou de ses opinions politiques dans le pays qui lui a reconnu le statut de refugie au sens de la Convention.

The Minister's representative argued that the process under those sections is that, in order to be eligible to have a claim determined, the claimant must first establish a credible basis for a well-founded fear of persecution in West Germany (the country that recognized him as a refugee). However, the claimant must, as a second step, also establish a credible basis for a well-founded fear of persecution with regard to Poland because claimants must be assessed against their country or countries of nationality.

On the grounds that this approach had not been followed, the Minister applied to have the matter referred back tot he initial hearing for redeterminations of the claimant's eligibility and of the credible basis for his claim. (Transcript November xx, 1989, at 13.)

Counsel for the claimant argued that the Act sets out a procedure for appeals from decisions of the adjudicator and the member at an initial hearing in situations where the Minister believes, as here, that the determinations of eligibility and credible basis have been made without jurisdiction. In this case, the Minister followed that procedure and made an application for leave to appeal to the Federal Court. The denial of that application, she argued, means that this hearing is properly entered upon. Counsel submitted that the Minister's representative was trying to convince the Division to do that which the Federal Court declined to do. The Minister's representative in response argued that the Federal Court, in denying leave to appeal, may be taken to have held that the Refugee Division has the jurisdiction to return the matter to the Adjudicator and the member at the Initial Hearing.

The Minister's representative referred to jurisprudence developed under the former legislation which held that a claim must be considered in the context of the country of nationality, where one exists (Hurt v. M.M.I. (1978) 2 F.C.A. 340, Dixon v M.E.I., IAB 84-1399, Chambers, Howard, Anderson, 31 December 1984. Rai v. M.E.I., IAB 82-9359, Tisshaw, Davey, Supra, 8 July 1982.). He also cited Bradford (Bradford v Correctional Service of Canada and National Parole Board, T-2168-87, Jerome, A.C.J., 1 February 1988, F.C.T.D.), in which case the National Parole Board was held to have the jurisdiction to refer matters back to the Correctional Services of Canada, as authority for a finding of similar jurisdiction in the Refugee Division. The panel reserved the decision on this issue.

1.1.2.Decision

The legislation does not give the Refugee Division the power to set aside decisions made at an initial hearing. That is a power granted to the Federal Court under ss.82.1 of the Immigration Act and s.18 and s.28 of the Federal Court Act. It is a well-known legal principle that a statutory Tribunal is a creature of statute and has no powers except those given by statute.

In Bradford (Bradford, unreported decision at pages 6-9), the Federal Court, Trial Division, held that the National Parole Board was required to ensure, before taking jurisdiction on a matter referred to it by the Correctional Service of Canada (C.S.C.), that the Correctional service had reasonable grounds on which to make the referral. The Minister's representative pointed out that in Bradford it was held that the Board had jurisdiction to determine that the C.S.C. members held the appropriate opinions and that those opinions were rationally based. (Bradford, unreported decision at pages 6-9.)

It is trite law to say that a Tribunal's jurisdiction to enter upon a matter is dependent upon the matter being properly before the Tribunal. The issue before us concerns the meaning to be given to the requirement that the Refugee Division determine that a matter is "properly" before it.

The legislation before the Court in Bradford required the service to forward its decision together with all "reasonable information" to the National Parole Board. Accordingly, the Parole Board would have a basis for going behind all decisions of the service that were referred to it and a basis upon which the Board could determine the rationale for those decisions. The Refugee Division is not in that position. Subsection 46.02(2) of the Immigration Act provides as follows: (Chapter 28 of the Immigration Act, as enacted by R.S.C. 1985 (4th Supp).)

(2)Where either the adjudicator or the member of the Refugee Division or both determine that the claimant is eligible to have the claim determined by the Refugee Division and either or both of them determine that the claimant has a credible basis for the claim, they shall give their decision and the reasons therefor as soon as possible after making the determinations and in the presence of the claimant wherever practicable and shall forthwith refer the claim to the Refugee Division, in the manner and form prescribed by the rules of the Board, and, where the matter is before an inquiry, the adjudicator shall take the appropriate action under subsection 31(1), (3) or (4) or section 32.1 with respect to the claimant. (emphasis added)

The Rules of the Refugee Division provide as follows:

Referral to the Refugee Division

8. Where a claim to be a Convention refugee is referred to the Refugee Division pursuant to subsection 48.02(2) or 48.03(5) of the Act,

(a)the member who was present at the inquiry referred to in subsection 48.02(2) of the Act or the hearing referred to in subsection 48.03(5) of the Act shall forthwith inform the claimant of the time and place set for the hearing into the claim;

(b)the registrar shall serve on the claimant and the Minister a notice of hearing; and

(c)an adjudicator shall forthwith file at the registry

(i)the personal information documentation and two copies thereof,

(ii)three copies of the determination made pursuant to paragraph 48(1)(c) or subsection 48.03(2) of the Act, and

(iii)one copy of any removal order or conditional removal order made against the claimant or any departure notice or conditional departure notice issued to the claimant.

This material, a copy of the claimant's personal information form and a notice that a given claimant has been determined to be eligible and to have a credible basis for his claim, signed by an Adjudicator and a member of the Refugee Division in the manner provided for by the Act and the Rules. Unlike the legislation in the Bradford case, the Immigration Act treats the hearings at each level as largely separate. The Refugee Division has no statutory basis for requiring the adjudicator, an independent decision-maker responsible to a completely different governmental branch, to forward further information from the initial hearing. Neither has the Division any statutory basis for going behind the notice of the determinations in order to review the evidentiary basis for those determinations.

If the Refugee Division finds that, in fact, no basis existed for the credible basis determination, ss.69.1(12) requires that the Division indicate this in its decision on the claim and, pursuant to ss.82.3(2), the effect will be to deny the claimant a right of appeal to the Federal Court of Appeal under ss.82.3(1). Nonetheless, the earlier credible basis determination stands as valid and the Refugee Division is not, on the basis of that finding only, without jurisdiction.

Therefore, it appears to the Division that determinations as to eligibility and credible basis, valid on their face, continue to stand as valid until and unless they are set aside by the Federal Court. In the opinion of the Refugee Division, the Division is without the jurisdiction to set aside determinations as to eligibility and credible basis and is without the jurisdiction to require redeterminations to be made upon those issues. (It has come to our attention, subsequent to the hearing, that the Federal Court of Appeal has indicated that the Refugee Division is not empowered to review the conclusions of an initial hearing with respect to eligibility: M.E.I. v. Letshou-Olembo, F.C.A. A-440-89, Marceau, J.A., concurred in by Hugessen and MacGuigan, JJ.A., May 8, 1990.)

1.2Public Access

On November xx, 1989, the Division heard representations from Mr. xxx of the Edmonton Sun and Mr. xxx of the Edmonton Journal. As neither the claimant nor the representative of the Minister objected to their presence, the media applications were accepted and the hearing was open to the public.

However, on November xx, 1989, in response to questions from the representative of the Minister regarding the claimant's activities in France in July and August 1984, the claimant refused to answer because the media were present. As a result, the Division asked the members of the media to leave during this portion of the testimony. Members of the media were readmitted at an appropriate time.

On March xxx, when the hearing reconvened, the Division received applications from Mr. xxx, CEIC, and Mr. xxx, Edmonton Journal, to continue to conduct the proceedings in public. The claimant indicated that he did not wish the applicants to be present if the Refugee Hearing Officer or the Division Members were to question him regarding his activities in France in July and August 1984.

In reviewing the applications from members of the public, the panel referred to the Federal Court Trial Division decision in Toronto Star Newspaper Ltd.. et al. v. Joseph Kenney et al (Toronto Star Newspaper Ltd., et al. v. Joseph Kenney et al. (F.C.T.D.), No. T-1769-89, Martin, February 13, 1990. re: Mahmoud Mohammad Issa Mohammad.). The effect of this decision was that the burden shifted to the refugee claimant to establish the existence of an environment which will diminish his ability to fully disclose the facts which support his claim. The evidence on an application for public hearing should only be conducted in the presence of counsel for the applicant. Justice martin suggested that "an undertaking of confidentiality which would be binding between themselves and their clients, the press" might be one means through which confidentiality could be protected.

In the absence of counsel for the media, the panel required the media representative to give an undertaking that he would maintain as confidential evidence presented during the application. The media representative complied with this undertaking.

Having considered the applications and the claimant's objections, it was the decision of the panel that the members of the public and the media would be excluded from the remainder of the hearing. In reaching this decision, the Presiding Member stated:

We do not believe that testimony can be controlled with sufficient precision. We are concerned that evidence that is not given in a public portion of the proceedings might be overlooked and not given in a portion of the proceedings which is in camera.

Not only does this raise our concern about the need to assure that we have heard all the evidence but the intent to segregate evidence in this way may constitute an impediment to the proceedings which is contrary to section 69(2) of the Immigration Act.

2.EVIDENCE

The evidence presented at the hearing included the testimony of the claimant, the testimony of the witnesses, and the following documents submitted by the Claimant (C), Minister's representative (M), and the Refugee Hearing Officer (R).

2.1Documents

C-1 - Personal Information form of x. xxx;

C-2 - Note drafted by: Legal Project, UNHCR Branch Office in Canada, No. 5, Determination of Refugee Status of Persons Connected with Organizations or Groups Which Advocate and/or Practise Violence;

C-3 - Response to information request from Ms. T. DeRousseau from Immigration and Refugee Board Documentation Centre, Ottawa, Re: Information on the treatment of members of the Polish military intelligence, dated 24 October 1989;

C-4 - Excerpt from Hansard Commons Debates of xxx, 1988, page xxx;

C-5 - Edmonton Journal article dated xxx, 1989, "xxx";

C-6 - Immigration and Refugee Board determination of xxx xxx to be a Convention refugee, dated xx January 1990;

C-7 - Letter addressed to the Immigration e Refugee Board from Mr. xxx, Manager, xxx xxx, Edmonton, dated March xx, 1990;

C-8 - Alberta Division of Vital statistics Certificate of Birth of xxx on xxx, 1990 in Edmonton, and Alberta Social Services e Community Health Vital Statistics Division, Certificate of Marriage of xxx xxx and xxx on xxx, 1990 in Edmonton;

C-9 - Application For a Travel Document, issued July xx, 1986;

C-10 - Letter from the Canadian Embassy, Immigration Section, Rome, dated xxx 1984;

C-11 - Letter from the Canadian Consulate General, Munich, dated xxx, 1987;

C-12 - Letter from the Canadian Embassy, Bonn, dated xxx, 1987;

C-13 - Letter from the Canadian Embassy, Bonn, dated xxx 1988;

C-14 - Letter from the Canadian Embassy, Bonn, dated xxx 1988;

C-15 - Letter from the Canadian Embassy, Bonn, dated xxx 1988;

C-16 - Letter from the Alberta Solicitor General, Motor Vehicles Division, Edmonton, dated xxx, 1988;

C-17 - Letter from the Alberta Solicitor General, Motor Vehicles Division, Edmonton, dated xxx, 1988;

C-18 - Letter from the Alberta Solicitor General, Edmonton, dated xxx, 1988;

C-19 - Letter from the Alberta Solicitor General, Edmonton, dated xxx, 1988;

C-20 - Copy of the Air Canada ticket in the name of Mr. xxx issued xxx 1986;

C-21 - Itinerary for xxx – April 7, 1986;

C-22 - Individual Earnings Record for xxx, xxx 1986;

C-23 - Photocopy of six postcards and letter envelopes for periods in 1988 and 1989;

C-24 - Letter by xxx entitled "My Connection with the xxx Case", 6 pages;

M-1 - Letter dated xxx 1990 to xxx from R. Tate A/Chief, Appeals Section, Appeals and Inquiries, Employment and Immigration Canada, Hull, P.Q.;

M-2 - Letter dated xxx, 1989 to The Registrar, Immigration and Refugee Board, Calgary, from R. Tate, A/Chief, Appeals Section, Appeals and Inquiries, Employment and Immigration Canada, Hull, P.Q;

M-3 - Letter dated xxx 1990 to xxx from R. Tate A/Chief, Appeals Section, Appeals and Inquiries, Employment and Immigration Canada, Hull, P.Q.;

M-4 - Excerpt from Security Intelligence Review Committee - Annual Report – 1987-1988;

M-5 - Letter from Intergovernmental Committee for Migration – Italy, xxx 1984;

M-6 - Federal criminal division information and translation – Bonn, Germany – xxx, 1986;

M-7 - Statutory Declaration from xxx – Bonn, Germany – xxx, 1989;

M-8 - Transcript of Immigration Inquiry for xxx;

M-9 - Selected paragraphs from the United Nations Handbook on Procedures and Criteria for Determining Refugee Status, Office of the United Nations Higher Commissioner for Refugees, Geneva, September 1979;

M-10 - Letter from claimant to xxx and translation with attached CSIS letter;

M-11 - Faxes from C. Goodes, CEIC to J. Petryshyn re: "xxx aka xxx", dated xxx, 1990;

M-12 - Newspaper clipping from Winnipeg Free Press – xxx, 1989, "xxx";

M-13 - Newspaper clipping from the Winnipeg Free Press –xxx xx, 1989, "xxx';

M-14 - The Criminal Code, Hijacking, s. 76.1, and Prison breach, s. 133(1).

R-1 - Country Reports on Human Rights Practices for 1988: Poland, Department of State, United States committee on Foreign Relations U.S. Senate, February 1989, pp. 1147-1160;

R-2 - Critique, Review of the Department of State's Country Reports on Human Rights Practices for 1988, July 1989, Human Rights Watch, pp. 145-146;

R-3 - Issue Paper, Poland: Solidarity, prepared by the Immigration and Refugee Board Documentation Centre, Ottawa, April 1989;

R-4 - World Encyclopedia of Political Systems e Parties, Second Edition, Volume II, article entitled "Polish People's Republic" by Suzanne Hruby, M. Phil.;

R-5 - The Europa Year Book 1988, A World Survey, Volume II, pp. 2180–2202;

R-6 - Revolutionary and dissident Movements, A Keesing's Reference Publication, Edited by Henry W. Degenhardt, pp. 299–310;

R-7 - Response to Information Request prepared by IRBDC –Ottawa, dated 11 April 1989, "Information on agreement between the Polish government and the opposition on economic and political reforms";

R-8 - IRBDC-HQ Wkly Press Release Summary for Sept. 19 – Oct. 5/89, Poland;

R-9 - Poland: Country Profile, prepared by the Immigration and Refugee Board Documentation Centre, Ottawa, Canada, September 1989;

R-10 - Observer Access Form for xxx, dated xxx 1990;

R-11 - Transcript of Immigration and Refugee Board hearing of November xx and xx and December xx, 1989;

R-12 - Response to Information Request No. 2371 dated 17 November 1989 prepared by the Immigration and Refugee Board Documentation Centre Ottawa, re: "1) Information on Asylum procedures for Eastern Europeans of non-German ethnic origin in the Federal Republic of Germany; 2) Information on the activities of intelligence agents from Eastern Europe operating in the Federal Republic of Germany;

R-13 - Birth Certificate of xxx issued "Krakow 1988 -xx-xx";

R-14 - Employment and Immigration Canada form Application for Permanent Residence dated November x, 1984;

R-15 - Employment and Immigration Canada for Record of Landing, Holder's copy, dated December xx, 1984;

R-16 - Photocopies of Chauffeurs Permit and Alberta xxx Student Identification card in the name of "xxx";

R-17 - xxx'x certificate, fifteen pages, in the mane of "xxx";

R-18 - House of Commons Book – Briefing Note written by Alan McLaine, Director General, USSR and Eastern Europe Bureau;

R-19 - Letter and attachment dated November xx, 1989 from xxx, xxx, RAD/Polish to Ms. Sharon Rusu, Chief, Immigration and Refugee Board, Ottawa;

2.2Testimony

The claimant testified that his name was xxx and that he was born on xxx, 1955 in Krakow, Poland. He further testified that he had assumed the following aliases. In June 1982, he escaped from Poland using a passport in the name of xxx. In 1984, he came to Canada as xxx, an alias he testified was given to him by the R.C.M.P. in Italy. The use of this alias is substantiated by the transmittal list, exhibit M-5, his application for permanent residence, exhibit R-14, and his record of landing, exhibit R-15. In 1986, while on assignment for CSIS in Canada, he assumed the name of xxx. In October 1989, he returned to Canada with a German passport in the name of xxx.

Xxxxx

Xxxxx

Based on the testimony of the claimant, Mr. xxx, and exhibit R-13, which is the birth certificate of Mr. xxx issued "1988 -xx-xx" by the Polish authorities, the Division is of the opinion that the true identity of the claimant is xxx, born xxx, 1955, in Krakow, Poland.

The claimant testified that he attended elementary school in Krakow from September 1962 to June 1970. He then attended trade school to become a xxx. He obtained his xxx certificate in January 1973.

In 1974, the claimant was conscripted into the army where he served as part of the xxx Airborne Division. After completing his compulsory two years in the military, he was approached by xxx of the Division to attend a xxx month training program in xxx, U.S.S.R. The claimant returned from the U.S.S.R. to Krakow in the summer of 1977 and went to work for the Polish intelligence service in the Foreign Affairs Department. From 1977 to 1982, the claimant testified that he worked in counter-intelligence, monitoring the xxx and xxx consulates.

In December 1981, martial law was imposed in Poland. The claimant testified that he stopped believing in his previous ideals and made contact with illegal Polish opposition groups. He began passing information to these groups and believed that his superiors began to suspect him. For this reason, he decided to leave Poland.

It should be noted that two witnesses offered very different stories as to the claimant's activities during the time period 1977 to 1982. The claimant's witness, Mr. xxx, testified that the claimant told him that he worked for xxx as a xxx. The claimant was active in the Solidarity Movement and had been detained by the police for moving a xxx. The witness testified that the claimant, with the help of friends, was smuggled out of Poland in a truck which arrived in Paris. Mr. xxx also testified that the claimant told him that he was an active member of the confederation for an Independent Poland (Konfederacja Polski Niepodleglej; KPN) in Poland. He was arrested and while being escorted from jail to the court house by the Polish police, he escaped and was smuggled to France in a transport truck. In addition, both Mr. xxx and Mr. xxx, xxxxx

Using false documents, the claimant and a friend escaped from Poland at the end of May 1982. They attempted to flee to the West but their documents were only valid in Warsaw Pact countries. After three months of trying to escape through such countries as Bulgaria and Yugoslavia, they decided that it was not possible. The claimant and his colleague were in Hungary in xxx 1982 where they decided to hijack a plane to West Germany.

Exhibit M-6 from the Federal Criminal Investigation Office in West Germany indicates that the claimant and his accomplice boarded xxx in Budapest on xxx, 1982. The claimant was carrying a dummy bomb made up of candles, insulating tape, cable, and a battery. Under the threat of igniting this "bomb", the claimant and his accomplice ordered the pilot to fly to Munich. The pilot gave in to this demand and landed in Munich. No one was hurt and the majority of passengers did not notice the incident.

The claimant and his accomplice were arrested by West German police on xxx, 1982, and charged with hijacking. The Trial was held February xx, 1983 and the claimant received a four-and-half year sentence. The claimant also applied for refugee status in West Germany which was granted on August xx, 1983.

In February, 1989, at the request of the panel, the parties were asked to provide, at the next hearing date, evidence on the claimant's status in Poland and West Germany. The claimant testified that he renounced his Polish citizenship during 1984, while in prison. No evidence was produced during the hearing in March that contradicted the claimant's testimony regarding Poland.

The claimant testified that in 1984, while in prison, he had written a postcard to the family of Ms. xxx. Ms. xxx responded and this marked the beginning of correspondence between her and the claimant. On xxx, 1990, in Edmonton, Ms. xxx became the wife of the claimant.

The claimant testified that on July xx, 1984, with the help of Polish intelligence agents he escaped from xxx prison while on a day pass. He was ordered by the Secret Service to go to Paris where he was to have kidnapped two people and brought them to the Polish Embassy in Paris. The claimant did not follow these orders but went to Marseilles for approximately three weeks prior to leaving for Italy.

Exhibit M-6 indicates that a warrant for the arrest of the claimant for failure to complete his sentence was issued by West Germany authorities on July xx, 1984.

The claimant testified that on August xx, 1984, he contacted the R.C.M.P. at the Canadian Embassy in Rome. The claimant offered to provide the Canadian authorities with intelligence information in return for being allowed to go to Canada. The claimant stated that he was provided the identity of xxx by the R.C.M.P and told to approach the Italian police in Milan. Using his new identity, he was directed to the refugee camp in Latina, Italy. The claimant stated he was told by Canadian authorities that he should state Edmonton, Alberta, as his destination in Canada because he was needed there.

Exhibit R-14 is the Application for Permanent Residence in the name of xxx. The destinations listed are Edmonton and Vancouver. His skills are listed as xxx, xxx and xxx. His present occupation is listed as refugee. Question 32 indicates he was a member of S.Z.Z. (Solidarnosc Trade Union) in Krakow from August 1980 – August 1984.

Exhibit M-5, Transmittal List No. 25 of the Intergovernmental Committee for Migration, Latina, Italy, dated August xx, 1984, lists xxx.

Exhibit C-10, a letter dated November xx, 1984, from the Canadian Embassy in Rome to x. xxx, encloses visa documents.

The claimant testified he arrived in Toronto, Canada on December xx, 1984 as xxx, and immediately proceeded to Edmonton. During his time in Canada the claimant was known as xxx.

Between December 11, 1984, and August xx and xx, 1986, the claimant testified that he lived in Edmonton, attended an "English as a Second Language" program at xxx (January – June 1985), worked at xxx until November 1985 and at xxx (December 1985 – August 1986). During this time, he worked for CSIS. He stated that CSIS contacted him in May of 1985 and directed him to make contact with Polish intelligence in Canada in order to carry out certain missions. The claimant testified as to his work for CSIS in Edmonton and Ottawa and filed exhibits C-20 and C-21 which were an airline ticket and travel itinerary under the name of xxx, a pseudonym given to him by CSIS while he was working for them. The claimant maintained that when he left Canada for Italy in August 1986, he was on assignment for CSIS. He testified that his assignment was to meet a group of people in Italy. When he met this group he learned that he was supposed to plant a bomb in an "xxx" airplane in one of the major cities in Western Europe. He stated that he didn't want to carry out this task so he telephoned the Italian police believing that the safest place for him at that time was in a West German prison.

xxxxx. Mr. xxx attended the hearing pursuant to the issuance of a subpoena. The subpoena was initially requested by counsel for the claimant on the ground that this was necessary for the claimant to adequately respond to exhibit M-10, a letter from x. xxx to xxx. Subsequently, counsel withdrew this request when some delay in proceedings was required in order to enable this witness to attend. Nonetheless, the Division continued the subpoena and called the witness on its own behalf.

xxxxx.

Exhibit M-6 from Interpol, Rome, indicates that the claimant under the name of xxx was arrested in Rome on xxx, 1986 and extradited to West Germany.

The claimant testified he spent two months in an Italian prison and was transferred to Munich at the end of October 1986 to serve his remaining sentence.

In late 1986, the claimant testified he was approached by a German lawyer while in prison who had a letter that he wanted the claimant to send to Mr. xxx. The claimant testified that the letter was typewritten in Canada and he was asked to rewrite it in his own handwriting, sign it and send it to Mr. xxx. The reason he was to send this letter was because his friend, Mr. xxx, was in trouble over his handling of the xxx case while the claimant was in Canada. The claimant testified that he was told by the lawyer that in exchange for writing the letter, the claimant would be assisted in returning to Canada at the completion of his prison sentence.

This letter, which was entered as exhibit M-10, is a twenty-four page document which essentially states that the claimant's true identity is xxx, outlines his family background, his involvement with the Polish intelligence service, and states that if CSIS does not arrange for his return to Canada he will go to the press by "1987, xx, xx" and disclose his relationship with them.

Xxxxx

While in jail in Munich, the claimant received a letter from the Canadian Consulate General (exhibit C-11). This letter was in response to a letter written by the claimant under the name of xxx on March xx, 1987, and indicated that a certificate of identity was only good for two years and that he would have to apply for entry to Canada after he was released from prison.

Exhibit C-12 is a letter from the Canadian Embassy in Bonn. The letter acknowledges that they received a letter from the claimant under the name of xxx on August x, 1987, but it was returned because German authorities indicated the claimant's name was xxx. The intent of this letter was to respond to the claimant's letter which concerned a returning resident application.

The claimant testified that on xxx, 1987, he was released from prison in Munich after serving three years and one-and-a-half months of his four and-a-half year term. He stated that he was contacted by the Polish intelligence service three to four times while in Munich. Subsequently, in December 1987, he moved to Cologne. In December 1987, he also received his travel document from West German authorities. This document was valid for a two year period and could be renewed.

The claimant testified that as a result of being deceived by CSIS regarding his return to Canada, he went to the press in early 1988 to outline his relationship with CSIS. Exhibit M-4, the 1987-1988 Annual Report of the Security Intelligence Review Committee indicates the claimant spoke to the media in January 1988 resulting in questions in the House of Commons. Exhibit M-4 states, at page 11:

In another mater that came to public attention during the year, we satisfied ourselves that CSIS dealt properly with xxx, who went to the media in January, 1988, with a complex account of how his work for CSIS let him in for a year in a West Germany jail to complete a hijacking sentence. As the Solicitor General has confirmed in the House of Commons,*[1]1* xxx did work for CSIS after entering Canada illegally, but CSIS did not bring him into the country to be a double agent, as he claims, and it ended the relationship before xxx voluntarily left Canada in August, 1986, and went to Italy, whence he was extradited by West Germany.

The claimant testified that in February, 1988, he began to work for a company called xxx on a one year contract. His responsibilities with the firm were for security and he frequently travelled to the firm's subsidiaries throughout Western Europe.

The claimant testified that he lived in Cologne from December 1987 to October 1989. During this period of time he was frequently contacted by Polish intelligence agents. He reported these incidents to the police in Cologne and was sent to German intelligence. With their assistance, he received an unlisted phone number but his request to authorities not to reveal his address was denied. He also stated that he applied for a change of name which was also denied. He testified that he was followed by Polish intelligence agents while in his car in the summer of 1988. He was able to stop them in Hanover and spoke with them. He testified that they wanted information regarding his work with CSIS in Canada. The claimant was not harmed during this encounter and returned to his home in Cologne.

From March to July 1988, a number of exhibits suggest that the claimant was continuing his desire to return to Canada. On March xx, 1988, the Canadian Embassy in Bonn wrote to the claimant notifying him of an outstanding warrant for the claimant's arrest in Canada. On March xx, 1988, the Embassy refused the claimant a returning visitor's permit. On March xx, 1988, the Embassy refused the claimant's application for a visitor's Visa. In June 1988, correspondence indicates that the claimant applied to have his Alberta driver's licence changed from xxx to xxx. In July 1988, a driver's licence was issued in the name of xxx.

The claimant testified that after his release from prison in 1987, he began to write again to xxx. In the summer of 1988, Ms. xxx asked the claimant for an official invitation to visit him. The claimant complied and on November xx, 1988, Ms. xxx arrived in Cologne and stayed with the claimant. The next week Ms. xxx applied for asylum in West Germany. The claimant stated that Ms. xxx told him she had been approached by Polish intelligence agents in Poland. They told her to write the claimant and request an invitation to visit. The claimant testified that Polish intelligence agents instructed her to go to Cologne and to retrieve from the claimant information regarding his work with CSIS.

Ms. xxx lived with the claimant in Cologne for ten months prior to their departure for Canada. During this time, the claimant testified that they were contacted by Polish intelligence agents. On September xx, 1989, Ms. xxx was dragged into a car, beaten, and threatened by Polish intelligence agents because she did not get information from the claimant. The claimant indicted that Ms. xxx was told if she did not get some information by October xx, 1989, that something would happen to her and her unborn child. It should be noted that Ms. xxx did not appear as a witness.

The claimant testified that when he learned of the incident with Ms. xxx, he went out in his car to look for the agents. He then reported the incident to the office of the Secret Service in Cologne. Exhibit M-7, a declaration from xxx, xxx, Canadian Embassy, Bonn, indicates that according to local sources in Cologne the police have no record of a complaint having been submitted.

The claimant testified that both he and Ms. xxx feared for their safety in West Germany because of actions of agents of the Polish intelligence service from which he alleges West Germany would not or could not protect them. On September xx, 1989, they left for Holland. Using false passports which were purchased in Amsterdam, the claimant and Ms. xxx left Holland and arrived in Canada on October xx, 1989.

3.0SUBSTANTIVE ISSUES

The claimant is required to show on a balance of probabilities that he falls within the definition of a Convention refugee, which provides as follows:

"Convention refugee" means any person who

(a)by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i)is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or

(ii)not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

(b)has not ceased to be a Convention Refugee by means of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act.

That definition encompasses a number of elements with respect to which evidence was adduced and argument made. The issues concerned are addressed below.

3.1Country of reference

Ascertainment of a claimant's nationality is the necessary first step prior to determining all other issues relating to his claim for refugee status.

As held in Ward, if it is found that a claimant has more than one country of nationality the claimant is obliged to establish that he is unable or unwilling to avail himself of the protection of each of his countries of nationality before he can be considered to be a Convention refugee (A.G.G. v. Ward, (F.C.A., no. A-1190-88), Urie Marceau and MacGuigan, March 5, 1990.). The phrase in the Convention definition referring to "country of nationality" is defined by the Handbook (Handbook on Procedures and Criteria for Determining Refugee Status, Office of the United Nations High Commissioner for Refugees, Geneva, January, 1988) to mean "citizenship" (Ibid. ("Handbook") at paragraph 87). The Handbook goes on to say that where nationality cannot be clearly established, the country of former habitual residence will have to be taken into account (Ibid. (Handbook") at paragraph 89). Although the Handbook is not part of Canadian law, it has been cited with approval and used as a guide to interpretation by Canadian courts (E.g., most recently, A.G. (Can.) v. Ward, supra n. 10.).

In this case questions have been raised concerning the existence of nationality, i.e. citizenship, in Poland and as to whether West Germany constitutes for the claimant a country of nationality, i.e. citizenship, or of former habitual residence.

3.1.1. Poland

The claimant's testimony is that he is Polish in that he was born in Krakow, Poland, but that he has renounced his Polish citizenship and is, therefore, stateless (Transcript March xxx at 74) as he is a citizen of no country (Transcript March xx-xx at 6). He testified that his renunciation of his Polish citizenship occurred at the request of West German authorities. He testified that renunciation of an existing citizenship is required when one applies for German citizenship and is also required in the context of a grant of asylum in West Germany (Transcript March xx-xx at 74-75.). He described the procedure he followed as having been begun by himself by letters to the xxx Embassy in West Germany and to the Polish Parliament in Warsaw. The Embassy did not respond, which was attributed by the claimant to the fact that he was known to have hijacked a Polish aircraft. He was informed by the Polish government that a fee had to be paid to Polish authorities upon renunciation. This fee was paid by friends as he was in jail at the time. He did not recall the precise date of the renunciation; however, he received a letter from Polish authorities in 1984 indicating that they were removing his citizenship. That letter was left behind when he escaped from the West German prison. He stated that such letters are to be referred to a German office for foreign matters and that he had done this (Transcript March xx-xx at 75).

The claimant's testimony is corroborated to some extent by the testimony of Mr. xxx, xxx. He testified that he was aware of Polish nationals who had renounced their citizenship through a procedure involving contact with Polish consular officials in the country of residence followed by payment of a fee (Transcript March xx-xx at 180.). The purpose of the fee, in his understanding, is to provide some compensation for state-supported services such as education (Transcript March xx-xx.). This is consistent with the claimant's statement of the procedure he followed and corroborative of it. Mr. xxx testified that he was not competent to testify with respect to the legal effect in Poland of a renunciation of citizenship although he testified to his understanding that a valid Polish passport together with a Polish exit visa permitted entry and departure from Poland. The claimant has been travelling on either a West German travel document or a Canadian travel document since 1984 and, on the evidence before the panel, does not have a valid Polish passport or travel document.

An examination of the exhibits indicates that the claimant has been consistent with respect to his understanding of his legal position which is that he is stateless. Exhibit R-15, a copy of Canadian Immigration form IMM1000, dated xx December 1984, completed by the claimant, indicates that his country of birth is Poland; the question as to the country of which he is a citizen is answered "stateless". Exhibit C-9, a copy of a Canadian "Application for a Travel Document", dated xx November 1985, completed by the claimant, indicates that his nationality of origin is "Poland" and his nationality at present is "Nil". Exhibit C-1, the claimant's personal information form, indicates that the claimant's present nationality is Polish: he has completed question No.8, which asks stateless persons to give their country of former habitual residence, by indicating "West Germany".

Exhibit R-12 (Response by to Information Request, No. dev2321, IRBDC, Ottawa, November 17, 1989), contains material from a publication Asylum in Europe (Asylum in Europe, a handbook for Agencies Assisting Refugees, European Consultation on Refugees and Exiles, March 19813.) prepared by The European Consultation o Refugees and Exiles (ECRE). ECRE is an internationally recognized organization whose publications are highly regarded. Exhibit R-12 deals with refugee status in West Germany. In paragraphs 80 and 81, it indicates that refugees may apply for naturalization after complying with certain conditions and says "while candidates for naturalization must usually renounce their previous nationality, such obligation only applies to refugees if they are able to do so". Citizens of Poland appear to be able to do so and the claimant has testified that he has done so. This exhibit corroborates the claimant's understanding that renunciation of citizenship is a requirement prior to naturalization in West Germany which is also applicable to refugees.

Exhibit R-19 (Letter to Sharon Rusu, Chief of Research, Immigration e Refugee Board Documentation Centre, from xxx, xxx, Radio Free Europe, Polish Section, xx November 1989.) refers to the right of all Polish citizens to return to Poland pointing out that a new passport may be refused to those "who have compromised the good name of the country while abroad, who have had criminal charges pressed against them… and whose travel abroad may be construed to be against the country's national interests". The claimant escaped Poland during a time of martial law by a hijacking which was publicized in Western Europe. It is reasonable to believe, in light of the quoted section, that he would fall within the group of those viewed as undesirable and that, therefore, the state would be amenable to accepting his fee and his renunciation of citizenship. His evidence with respect to the letter from Polish authorities accepting his renunciation appears credible in this light.

Grahl-Madsen, the noted authority on refugee law, in referring to Article 1 of the International Convention on certain Questions relating to the Conflict of Nationality Laws, states that "it is for each state to determine under its own law who are its nationals. (Grahl-Madsen, Atle, The Status of Refugees in International Law (A.W. Sijthoff-Leyden, 1966) at 155.)" However, we have had only limited evidence as to the law of Poland with respect to nationality.

The burden of proof is always on the claimant, under the legislation, to establish his case on a balance of probabilities. This is the legal burden of proof which never moves. However, there is a secondary burden and that is the shifting evidential burden (Cross, Rupert and Tapper Colin, Cross on Evidence at 105-108, London, Butterworth, 1985; see also, the discussion of Cross on Evidence in Schiff, Stanley at 1081-82; Evidence in the Litigation Process, 3rd ed, Toronto, Carswell Co. Ltd., 1988.). This burden is met by adducing prima facie evidence of the facie evidence of the facts in issue (The Ontario Equitable Life and Accident Insurance Co. v. Baker (1926) S.C.R. 297 as edited and discussed in Schiff, ibid. at 1979, 1083.). This evidence then shifts the evidential burden to the other side to adduce evidence in answer. This evidential burden shifts back and forth. If the evidential burden is not met at the end of the day, the person on whom the evidential burden then rests may be held to be unsuccessful on the issue. For example, where there is prima facie proof of an allegation, it may be found true in the absence of further evidence. (The Ontario Equitable Life and Accident Insurance Co. v. Baker (see citation above), Schiff at 1080 and discussions at 1082-83.)

In this case, the claimant has testified with respect to his renunciation of Polish citizenship and his understanding of its legal effect. His testimony has been corroborated by exhibits and by the testimony of Mr. xxx, the witness called on behalf of the Minister. Although Mr. xxx was not an expert in Polish law, xxxxx. In the course of his work, he learned of the procedure for renunciation of Polish citizenship through his work with other people of Polish origin who had renounced Polish citizenship in much the same manner as had the claimant. None of this evidence has been challenged by the Minister, and we find it to be credible.

Why would West Germany trouble itself to require a renunciation of citizenship, why would Polish nationals other than the claimant trouble themselves to renounce citizenship, and why would Poland establish a procedure and require payment of what Poland appears to regard as a debt owing to the state, if renunciation is without legal effect? The only logical inference is that renunciation of Polish citizenship does have legal effect. The Federal Court of Appeal has also required the existence of nationality to be decided on evidence which was much the same as that present here in a case where, as here, no expert evidence was available on the point (The Ontario Equitable Life and Accident Insurance Co. v. Baker (1926) S.C.R. 297 as edited and discussed in Schiff, ibid. at 1079, 1083, n. 10.). That case is helpful authority with respect to the standard of factual evidence required, although it did not deal with the shifting nature of the evidential burden but only with the fixed legal burden.

On the basis of the evidence, the evidential burden on the claimant has been met and shifted to the Minister. No evidence was otherwise called by the Minister. As a result, we find that the Minister has not met the evidential burden required to be met. We find on a balance of probabilities that the claimant has lost his Polish citizenship pursuant to renunciation and, therefore, lacks Polish nationality.

The question then arises as to whether the country of reference should, nonetheless, continue to be Poland as a country of former habitual residence. Although claimants must be assessed against any and all countries of nationality this is generally not the case with respect to countries of former habitual residence. (Handbook, para. 104; Grahl-Madsen, supra n. 24 at 160.) In this case the claimant has chosen West Germany as his country of former habitual residence. On the basis of the evidence as to the referential ties of the claimant to West Germany, it is clear that, in the words of Grahl-Madsen, he has made it "his abode" and "the centre of his interests" (Grahl-Madsen, see citation above at 160.). This is not a case in which the claimant's interests are so evenly balanced between two countries that both may have to be reckoned as his ‘countries of former habitual residence'. (Grahl-Madsen, see citation above at 160-161.)

3.1.2.West Germany

The claimant testified that he has permanent resident status in West Germany, granted in August, 1983 (Transcript March xx at 8.). The claimant applied for West German citizenship in Cologne, West Germany, in the spring of 1989 but no answer was received (Transcript march xx at 9; March xx at 73). In December 1987, he received a travel document from West German authorities. The West German travel documents expired in December 1989. The claimant testified that be tried to apply for renewal in September 1989 and was advised by West German authorities that it was too early to renew (Transcript March xx at 70.). After October 1989, the claimant was in Canada. He inquired regarding renewal at the German Consulate in Edmonton and was advised that renewal was awaiting the resolution of his claim for refugee status in Canada. He also testified that he believes his West German permanent resident status expires after six months absence from West Germany.

The claimant lived in West Germany from 1982 to 1984 when he came to Canada. He returned to Europe in1986. After completing his West German prison term in November 1987, he remained in West Germany until October 1989 when he arrived in Canada. This evidence has been corroborated by a number of exhibits submitted by both the Minister's representative and the claimant. This evidence is credible.

On the basis of the evidence, it is clear that the claimant does not have West German citizenship nor does he have status in West Germany akin to citizenship. As the concepts of nationality and citizenship are equivalent under the definition of a Convention refugee, the claimant, therefore, lacks a "country of nationality" and we must consider whether West Germany constitutes a "country of his former habitual residence".

The Immigration Act (Immigration Act, section 2(1) of the Act as enacted by R.S.C. 1985 (4th Supp.), c. 28 s.1.) does not define the phrase "country of former habitual residence". The Handbook neither defines the phrase nor provides any criteria to use in determining the application of the concept. Goodwin-Gill deals with the concept as an alternative to country of nationality but without defining it (Goodwin-Gill, Guy S. The Refugee In International Law (Clarendan Press, Oxford: 1984) at 25-6.). Grahl-Madsen points out that a person who has broken his ties with his country of origin may claim refugee status from a second country i.e. a country of former habitual residence, in exceptional circumstances. Those circumstances are where the individual claimed refugee status from the country of origin and also from the second country or where the individual "has been denationalized and eventually finds himself as an actually stateless refugee from a country of ‘secondary persecution'" (Grahl-Madsen, see citation above, at 162.). Overall, this eminent authority prefers that the term "country of former habitual residence" be interpreted in a manner as favourable to a claimant as possible.

This claimant has been granted refugee status by West Germany, has established residence in West Germany and has testified to his intention to remain in West Germany were it not for the incidents occurring there which he alleged cause him to leave West Germany and on which he made his claim.

Accordingly, the concept of a "country of former habitual residence" replaces "country of nationality" in the definition of a Convention refugee in this case and is applicable to West Germany.

3.2.Well-founded Fear of Persecution

The reference to a "well-founded fear of persecution" in the definition of a Convention refugee has been described in Rajudeen v. M. E.I. as follows: (Rajudeen v. M.E.I. (1984), 55 N.R. 129 at 134 (F.C.A.).)

… This court as well as the Supreme Court of Canada has made reference in a number of cases to the subjective and objective components necessary to satisfy the definition of Convention refugee. The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.

Under the definition, one of the issues which must be addressed is whether the claimant is unable or, owing to a well-founded fear of persecution, unwilling to return to the country of his former habitual residence i.e. West Germany.

The facts on which these issues must be addressed may be summarized as follows: the claimant testified that he received refugee status in West Germany on August xx, 1983, and became a permanent resident of that country (Transcript March xx at 9.). After he was released from prison in Munich on November xx, 1987, he was contacted there by Polish intelligence agents on three or four occasions. He moved to Cologne in December, 1987, obtained a West Germany travel document and, in February, 1988, began employment as the person in charge of security throughout Europe for a West Germany firm. He travelled throughout Western Europe while engaged in this work.

He testified that Polish intelligence again located him in Cologne and contacted him. He reported these incidents to the police in Cologne and was sent to the West Germany intelligence service. They assisted him to obtain an unlisted phone number. He also requested an exemption from the requirement that he notify local authorities of any change of address because all addresses are otherwise publicly available. However, this exemption was denied as were his applications for a change of name and for a weapons permit. In the summer of 1988, while in his car, he was followed by members of the Polish intelligence service. On one occasion in Hanover he stopped them and spoke to them. They threatened him and demanded information regarding his previous work with CSIS in Canada.

The claimant had begun corresponding with xxx during his West Germany incarceration in 1984. He testified that the later correspondence between Ms. xxx and himself, subsequent to 1987, could have been intercepted in Poland by Polish authorities. He was asked by Ms. xxx to officially invite her to come to visit him. The official invitation was necessary in order for her to obtain a Polish exit visa. She arrived November xx, 1988. After her arrival, she told the claimant that her visit was made at the demand of p intelligence agents who had instructed her to go to Cologne and retrieve information from the claimant regarding his work with CSIS, which she was to provide to Polish intelligence agents. The claimant believed that she didn't want to do this and that she wanted refuge from the Polish intelligence agents. He helped her with her claim for refugee status in West Germany which she made the following week.

Ms. xxx continued to live with the claimant. The claimant testified that during this time the Polish intelligence service continued to harass them by telephone. On September xx, 1989, she was dragged into a car, beaten and threatened by Polish intelligence agents because she did not get information from the claimant. The claimant indicated that Ms. xxx was told that if she did not get some information by October xx, 1989, something would happen to her and her unborn child. When the claimant learned of this occurrence, he went out in the car to look for the agents. The claimant reported this event to the office of the West Germany secret service in Cologne.

The claimant testified that it was as a result of this incident and the accumulation of harassment from the Polish intelligence agents that he decided to go to Canada. He stated that whereas he could be fairly confident that members of the Polish intelligence service would not shoot him so long as they wanted something from him, he had no such confidence that Ms. xxx or their child would not be attacked in order to pressure him.

The Minister's representative asked him what further steps the West Germany authorities could have taken to protect him. The claimant responded he wanted to change his name and his address. He also wanted a weapons permit in order to protect himself and his family. He said that he did not want to resort to false papers, notwithstanding his past use of such, because now he had a family and he wanted to live normally. He stated that since West Germany would not or could not take the steps that he felt were necessary for protection, he chose to move to Canada because the Polish intelligence service has much less ability to operate here primarily because Canada is further from Poland then is West Germany. The underlying cause of the attention from the Polish intelligence service was their interest in obtaining information from the claimant about CSIS. The Minister's representative raised some questions as to whether the events complained of occurred at all or whether they occurred only in the claimant's imagination. He also questioned whether someone with the claimant's ability to obtain and use false identification would really object to using such material and would really have such difficulties in evading pursuers.

The claimant's credibility on matters relating to his alleged involvement with the Polish intelligence service has been badly shaken xxxxx. The testimony of Mr. xxx on these matters was given in a direct and straightforward fashion with little resort to the linguistic convolutions of "bureaucratise". Xxxxx testimony was not challenged by the claimant. Mr. xxxxx claimant's testimony that he was sent to Italy in 1986 by CSIS in order to place a bomb in an airplane.

On these points we accept the testimony of xxx. A review of Mr. xxx allegations against CSIS was undertaken by the Security Intelligence Review Committee which has responsibility for provision of an ongoing, objective, third-party review of CSIS activities. In this regard, exhibit M-4 corroborates the evidence of Mr. xxx and Mr. xxx. We would add that the implications of the claimant's allegations regarding the alleged intentions of CSIS to have the claimant place a bomb in an aircraft are so horrendous that more than a mere allegation would be required to make this testimony believable.

It is, however, possible that the interest of the Polish intelligence service in the claimant did, in fact, result from the media attention given to the claimant's press appearance in London in xxx 1988 at which time he publicized his work for CSIS. The credibility of the testimony concerning the alleged subsequent harassment of the claimant and Ms. xxx does not rest solely on the previous, impugned testimony. However, the only evidence we have relating to the alleged telephone calls from the Polish intelligence service, their abduction of Ms. xxx, their original assignment to her to get information from the claimant and their threats, has come from the claimant. We are very reluctant to accept the testimony of the claimant without some corroboration.

Ms. xxx was not called to testify to these matters although she resided in Edmonton and observed some of the earlier proceedings of this hearing. The panel was informed by claimant's counsel that Ms. xxx would not be called. The decision not to call Ms. xxx was made at a time when the claimant was represented by counsel and, therefore, that decision was one made with independent legal advice and cannot be considered to have been made without an understanding of all the implications. Ms. xxx evidence is particularly important because exhibit M-7, to some extent, raises separate questions about the claimant's testimony that he complained to the West German authorities about the alleged attack on Ms. xx. Exhibit M-7 states that no record can be found of any such complaint. The claimant's testimony that he stopped the Polish intelligence agents to talk to them in 1988 and, after the alleged attack on Ms. xxx, in 1989 went out looking for them, also raises questions regarding the credibility of the evidence. Ms. xxx is the only person able to confirm the facts alleged or provide first-hand evidence of certain facts. Therefore, given the lack of an opportunity to see and hear Ms. xxx, to raise questions and to assess her evidence concerning the alleged persecution in West Germany, it is difficult to give much weight to this testimony.

However, if one assumes that the alleged harassment undertaken in West Germany against the claimant by Polish intelligence agents did, in fact, occur and that he holds a subjective fear, the question remains as to whether these events form the basis for a well-founded fear of persecution.

The issue here concerns the meaning of the concept of state protection. The belief that a state has an obligation to provide reasonable protection from persecution for its citizens and residents and that the basis for a refugee claim may be found where such provision is lacking for reasons of race, religion, nationality, membership in a particular social group or political opinion, is a basic concept underlying the Convention definition of a refugee (Goodwin-Gill, Guy S. The Refugee In International Law (Clarence Press, Oxford: 1984) at 38-46.). Where reasonable protection is reasonably available, the well-foundedness of the fear alleged may be questioned since the concepts of persecution and the need for protection are interrelated. (By implication from the discussion, ibid. Goodwin-Gill at 38, 46. This interrelationship has long been recognized, although it may be that no presumption as to persecution arises from a lack of protection: Ward, supra n. 10, Urie, J.A., at 15.)

The concept of effective state protection is, therefore, an underlying factor in many decisions. In particular, the Federal Court of Appeal decision in Rajudeen v M.E.I., (Rajudeen, see citation above.) has formed the basis, on a number of issues, for many decisions of the Immigration Appeal Board and of its successor in office, the Convention Refugee Determination Division.

In Rajudeen, the applicant was a member of the Tamil minority in Sri Lanka. The Tamil minority was subject to riots, personal attacks, and communal violence without any efforts on the part of the police to drive away those who were doing the looting and burning who came from the Sri Lankan majority. The applicant was personally beaten and threatened by members of the Sri Lankan majority, who had indicated on a number of occasions that they were going to eliminate him and get rid of all the Tamils if possible. The applicant did not report this to the police because he was of the view that it would do no good because the police would take no active steps to stop the violence and, indeed, aggravated the situation by being indifferent. He also said that because the police were of the Sinhalese majority, he had no confidence that they would protect him. (Rajudeen, see citation above, at 133 and 134.)

Mr. Justice Stone held that the question whether or not effective state protection was available had to be determined on the facts of each case. As effective protection was not reasonably available on the facts of that case, the applicant was seen to have a well-founded basis for his fear:

…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.

(22)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 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 applicant could not reasonably expect to be protected by an important state agency against unlawful attacks. In my view, he had good reason to be fearful and, objectively, such fear was well-founded... (emphasis added).

Heald, J.A., states as follows: (Rajudeen, see citation above, at 134.)

(16)The remaining requirement of the definition of Convention refugee is his unwillingness to avail himself of the protection of Sri Lanka. The evidence clearly establishes that the mistreatment of the applicant was carried out by "thugs" of the Sri Lanka majority and not by Government authorities or by the police. The evidence is equally clear, however, that the police took no active steps to stop the violence, always managing to arrive on the scene after the violence had occurred. The applicant said that the police aggravated the situation by being indifferent. He also said that because the police were off the Sinhalese majority, he had no confidence that they would protect him. In his view, to ask for police protection would work against his interests since, in his experience "… the reportee gets arrested rather than the assaulted person." On the basis of this evidence, the applicant has established ample justification for being unwilling to avail himself of the protection of Sri Lanka.

Although these statements focus most strongly on state involvement in the persecution, the question of the claimant's reasonable expectations of protection underlie the discussion.

The issue of effective state protection recently arose in the case of A.G.(Can.) v. Ward (See citation above.). That case concerned a claimant who was unwilling to ask for state protection on the grounds that the Irish police could not protect him from the wrath of the Irish National Liberation Army (INLA). As a former member of the INLA, the claimant and his family were found by the Immigration Appeal Board to be at serious risk from members of that group because the claimant had released two INLA hostages who were slated for death. The majority of the Federal Court of Appeal allowed the Minister's appeal against the earlier decision of the I.A.B. that the definition off a convention refugee was met.

While the Ward decision turned on several issues which need not be explored here, some useful observations can be made with respect to the concept of effective protection as it appears in that case.

Urie, J.A., stated on behalf of himself and Marceau, J.A., as follows:

…If a claimant is "unwilling" to avail himself of the protection of his country of nationality, it is implicit from that fact that his unwillingness 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. … (emphasis added)

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."

However, I cannot agree with its view that:

"Fear of persecution and lack of protection are also 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.

No such presumption arises. The determination can only be made after an assessment and weighing of the evidence to ascertain whether or not the claimant, in the opinion of the appropriate tribunal, 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.

Urie, J.A., did not find it necessary to deal with the question of what constitutes effective state protection since this part of his decision turned on the question of state involvement. What is clear, however, is that it is necessary for a claimant to establish a lack of state protection. As this is an integral part of the requirement that a well-founded fear of persecution be shown, it would appear that the question of effective state protection is one of the issues to be dealt with before proceeding to deal with state involvement as an aspect of "inability or unwillingness".

MacGuigan, J.A., in the minority in Ward, stated that the facts in Rajudeen and the subsequent case of Surujpal (Surujpal v. M.E.I. (1985), 60 N.R. 73 (F.C.A.).) refer to situations in which the police are indifferent to the persecution against the claimants but that there is no real difference between the decisions of Stone, J.A., in Rajudeen and of himself in Surujpal.

In dicta, MacGuigan, J.A., appeared in Ward to have some doubt as to the standard of evidence adduced in that case on the issue of the inability of the state to protect, saying that:

…A decision that a stable, law-abiding and democratic state does not have the ability to protect its citizens from criminal or subversive elements is not one to be reached lightly … (Ward, see citation above, MacGuigan at 19.)

The evidence in that case with respect to the "inability" of Ireland to protect the claimant depicts the INLA as a very tenacious persecuting entity and describes the seriousness with which the Irish policeman and police chaplain viewed the threat and their own incapacity to protect Mr. Ward from it. Mr. Ward's sentence was, at his own request, served in isolation at a non-political prison, he was provided with a passport, money and an airline ticket to Canada by a prison chaplain and a member of the police knowledgeable about his case and was guarded by Irish police for two days prior to departure (Ward, see citation above, decision of Urie, J.A., at 4.).

In the present case, agents of the Polish intelligence service operating within the territory of West Germany to harass West Germany residents could well constitute "criminal or subversive elements", as referred to by MacGuigan, J.A., above. The question then is what is the standard of protection which reasonable ought to be required of West Germany? It may be that there is no fixed standard but that the standard depends on what is reasonable in all the circumstances off the case. By way of analogy, for example, what is necessary in the case of a witness protection program applicable in the context of drug-trafficking investigations may not be necessary in the case off a civil suit where an ordinary injunction may suffice to protect a witness. Similarly, there may be cases in which one would say that the level of protection necessary for persons already found to be refugees but who fear continued persecution across national boundaries, is required to be at a higher standard than that applicable to ordinary residents. The facts in Ward suggest that a genuine governmental concern for an individual's protection is based on the seriousness with which the threat is viewed. The claimant's own actions must surely be a part of this determination and must be taken into account when examining the protection provided and its reasonableness.

In this case, the claim that West Germany has failed to protect the claimant is based on the fact that the claimant was denied secrecy of address and name changes and was not given a weapons permit. He was given an unlisted telephone number. The claimant also testified that on one occasion he, personally, stopped the people he identified as agents of the Polish intelligence service and talked to them. After the matter involving Ms. xxx, he got into his car and went looking for someone answering the description which she had provided.

The claimant indicated that he felt that his refugee status in West Germany did not provide him with safety. However, he did not appear to take much responsibility for his own role in his situation. Here the claimant sought confrontation with the individuals from whom he simultaneously also sought protection. The actual need for protection appears less than compelling in such circumstances and is a factor to be considered in determining the reasonableness of the standard of protection which was provided. The claimant's ability to move to other cities in West Germany was unimpeded, he could travel to other localities in Western Europe, he had an unlisted telephone number. No evidence of a police report of the matter involving Ms. xxx was found. No evidence was provided as to the considerations applicable by West Germany authorities to provision off secret name and residence locations or to provision of weapons permits.

The claimant was not a prominent activist of any political stripe. His news conference in London was intended to be embarrassing to Canada, not Poland. Although West German authorities did not take all of the steps the claimant wanted them to take, on this evidence we cannot find that West Germany failed to provide reasonable protection to the claimant in all the circumstances and that the claimant has a well-founded fear of persecution. In fact, he has previously been recognized as a Convention refugee in West Germany. Furthermore, there is no evidence before us that the claimant would have a reasonable chance of being persecuted were he returned to West Germany.

Therefore, the question as to whether an interest of the Polish intelligence service in information about CSIS activities constitutes a perception about the claimant's political opinion (Re Inzunza and M.E.I. (1979), 103 D.L.R. (3d) 105), or whether having such information would qualify the claimant as a member of a particular social group need not be addressed. It is also unnecessary to go further and consider any implications arising from the unwillingness of the claimant to seek the protection of West Germany notwithstanding his lack of fear of West German authorities. (See citation above, Ward at n. 10 at 15, where Urie, J.A., indicates that this issue is dealt with secondary to the determination concerning the existence of a well-founded fear of persecution.)

3.3 Decision on the claim

Therefore, it is our determination that the claimant does not meet the definition of a Convention refugee as defined under section 2(1) of the Immigration Act, and, consequently, is not a Convention refugee.

3.4.Application of The Exclusion Clause

Subsection 2(1) of Act, in providing the definition of a Convention refugee, states:

"Convention refugee" means any person who

…

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act:

Subsection 69.1(5)(b) of the Act provides for the involvement of the Minister where section E or F of Article 1 of the Convention are raised.

The Rules of the IRB provide for the filing by the Minister of a notice of intent to take part in proceedings, a copy of any document that the Minster intends to produce and off a statement of facts that the Minister intends to prove (SOR/88-1026, Rule 14.). These requirements were met by the filing of exhibits M1 and M2. Evidence and argument at the hearing, in fact, concerned the application of section F(b) of Article 1 which is enacted in the schedule to s.2(1) of the Act as follows:

SECTIONS E AND F OF ARTICLE 1 OF THE UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES.

F.The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)…

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)…

These articles are commonly referred to as exclusion clauses. (Handbook, ch. IV. An additional exclusion clause, Section December of Article 1, is found in the Convention but has not been enacted in Canadian law.)

There is some dispute as to whether, as a matter of procedure, a refugee claimant must first be considered under the inclusion portion of he definition before the facts are analyzed in light of the exclusion clause. The Handbook, in paras 176-177, adopts that procedure. Where section F(b) is at issue, the Handbook's position is based on the premise that where the claimant is found to be a Convention refugee, the serious consequences of return must be balanced against the nature of the grounds alleged as the basis for exclusion: (Handbook, see citation above note 11 at paragraph 156.)

If a person has well-founded fear of very severe persecution, e.g. persecution endangering his life or freedom, a crime must be very grave in order to exclude him. If the persecution feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have been committed in order to establish whether the applicant is not in reality a fugitive from justice or whether his criminal character does not outweigh his character as a bona fide refugee.

The Handbook goes on to recommend that all surrounding circumstances and mitigating factors be taken into account. Goodwin-Gill has stated that although Article 1F excludes ‘persons' rather than ‘refugees', in practice, the balance referred to above must be struck (See citation above: see also Arboleda, Eduardo, "Notes on the Application of the 1951 Convention Relating to the Status of Refugees", unpublished paper, UNHCR Canada, November 7, 1989.).

We are of the opinion that it is a matter of serious concern that the process followed be one in which the inclusion portion of the definition is considered before the possible applicability of the exclusion clause is tested, in order that all surrounding circumstances be taken into account. Ordinarily, only after a person has been considered as satisfying the criteria of the inclusion portion of the definition, will the matter of the exclusion clause be raised. It is for this reason that we initially dealt with the merits of the claim for refugee status under the inclusion clause.

Normally, when a person has been found not to meet the definition of a Convention refugee, there is no need to determine whether the person is excluded. No compelling reasons have been shown in this case to take it out of the ordinary.

The claimant has been found not to meet the definition of a Convention refugee, there is no need to determine whether he is otherwise excluded from that definition.

Delivered at Calgary this 6th day of June, 1990.

"E. Diane Pask"

CONCURRED IN BY: "Elizabeth Bryant"



[1]** Debates of the House of Commons. January 22, 1988.

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