Canada (Attorney-General) v Ward,

• Date: 30 June 1993
• Court: Supreme Court (Canada)

Canada, Supreme Court.

(La Forest, L'Heureux-Dub, Gonthier, Stevenson1 and Iacobucci JJ)

Re Attorney-General of Canada and Ward; United Nations High Commissioner for Refugees et al.

Aliens Refugees Claim for refugee status Well-founded fear of persecution Whether State complicity in persecution required Whether sufficient that State unable to protect citizen from persecution inflicted by private individuals Dual nationality Requirement that capacity of all claimant's States of nationality to protect claimant be assessed Paramilitary organization of which claimant formerly a member ordering his death Whether persecution by reason of membership of a particular social group Whether persecution for reason of political opinion Convention relating to the Status of Refugees, 1951 Canadian Immigration Act 1985

Treaties Interpretation Travaux prparatoires As guide to interpretation of municipal legislation Convention relating to the Status of Refugees, 1951 Canadian Immigration Act 1985 Criteria for grant of refugee status The law of Canada

Summary: The facts:The appellant, Mr Ward, had been a member of the Irish National Liberation Army (the inla), a paramilitary organization in Northern Ireland. He had released hostages, whom he was guarding for the inla, in order to prevent their murder. The inla, suspecting his role in the escape of the hostages, had ordered that he be killed. Mr Ward had sought assistance from the police in the Republic of Ireland, where he was tried and convicted for the offence of forcible confinement. On completion of his prison sentence, Mr Ward was provided with a Republic of Ireland passport and air tickets for travel to Canada so that he could flee the inla.

Mr Ward entered Canada as a visitor and subsequently applied for refugee status, claiming that he was a Convention refugee by reason of his fear of persecution arising from his membership of a particular social group, the inla. He claimed that the protection offered to him by the Irish police if he had remained in Ireland would have been ineffective in preventing him from being killed by the inla. The Immigration Act 1985 (the Act) defined a Convention refugee as any person who (a) by reason of a well-founded fear of persecution for reasons of 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, .2

The Minister of Employment and Immigration rejected Mr Ward's claim. Mr Ward appealed to the Immigration Appeal Board (the Board) which determined that he was a Convention refugee. The Board ruled that there was no requirement of State complicity in the persecution giving rise to the claim and that the inability of the State to provide adequate protection from the persecution was sufficient for the purposes of the Act. The Board held that Mr Ward was a citizen of both Northern Ireland and the Republic of Ireland, neither of which could protect him effectively. The Board found that it was not established that Mr Ward also had citizenship which entitled him to reside in Great Britain but declared that if it had so found, it would have determined that the United Kingdom authorities could not effectively protect him in Great Britain. The Attorney-General applied for review and setting aside of the Board's decision. He argued that the inla was not a particular social group for the purposes of the Act and that State complicity in the persecution was required to satisfy the criteria. The Attorney-General conceded that a State's inability to protect the claimant was sufficient State complicity to satisfy the criteria but argued that, although the Republic of Ireland was unable to protect Mr Ward, it had not been established that the United Kingdom was unable to protect him. The Federal Court of Appeal granted the application and set aside the Board's decision. Mr Ward appealed to the Supreme Court. In the Supreme Court, the United Nations High Commissioner for Refugees (the unhcr) who intervened in the matter, raised the question of whether Mr Ward satisfied the criteria for a well-founded fear of persecution for reason of political opinion.

Held:The appeal was allowed. The case was remitted to the Board for a determination of the claim with reference to the claimant's citizenship of the United Kingdom.

(1)(a) There was no requirement that persecution must emanate from the State. The focus of the inquiry was whether the claimant had a well-founded fear. After a determination on that issue, all that was required was that the claimant was outside the country of nationality because of that fear and was unable or unwilling to avail himself of the State's protection. Although the travaux prparatoires to the Convention relating to the Status of Refugees, 1951 (the Refugee Convention) did not establish whether or not State complicity was a prerequisite, other sources supported the conclusion that it was not, including inter alia, the unhcr's Handbook on Procedures and Criteria for Determining Refugee Status (the Handbook), a document which, although not binding on Parties to the Convention, had been endorsed by them. Acts of private citizens, when combined with the inability of the State to protect an individual from those acts, could constitute persecution (pp. 2349).

(b) It did not matter whether the claimant was unwilling or unable to rely on the protection of the State of nationality. Although there had historically been a distinction between these two elements of the criteria, as was evidenced by the travaux prparatoires to the Convention and the Handbook, this had become blurred. Ineffective State protection would render a claimant unable as well as unwilling to seek the protection of that State (pp. 23942).

(c) The State's inability to protect the claimant was a crucial element in determining whether his fear was well founded, by providing a reasonable basis for the claimant's unwillingness to seek the protection of his State of nationality. The Board had been correct in holding that there might be a presumption that persecution was likely and that the fear was well founded where it had found as a fact that there was a fear and that there was an absence of State protection. Mr Ward had satisfied the Board that he had a legitimate fear of persecution. The Irish authorities had admitted their inability to protect Mr Ward effectively. The Board was entitled to presume that Mr Ward's fears were well founded (pp. 2426).

(2)(a) The limitations imposed by the categories of refugee in the Convention were intended to indicate that the international community was not providing sanctuary for all and, for example, did not extend asylum to economic migrants. The category of membership of a particular social group was, however, inserted into the Convention to deal with any lacuna not covered by the other categories. Underlying the Refugee Convention and the particular social group criterion was a commitment to basic human rights without discrimination and the maintenance of human dignity, as evidenced in the Preamble to the Convention.3 Case-law indicated that a particular social group was, for the purposes of the Convention, divided into three categories: either (i) members of the group shared innate, unalterable characteristics, or (ii) members of the group associated together voluntarily for purposes which were so fundamental to their human dignity that they could not be required to forgo that association, or (iii) the members of the group were associated by a former voluntary status which was unalterable because of its historical permanence (pp. 24656).

(b) There was no need to interpret the phrase particular social group so as to exclude criminal or terrorist groups, as the Federal Court of Appeal had

sought to do, because this was dealt with under Section 19 of the Act.4 That provision excluded, inter alia, persons involved in organized crime as well as those who had engaged in acts of political subversion. Those coming within the ambit of Section 19 would have to satisfy not only the criteria of a Convention refugee but would also have to show that they had renounced their former activities and had rehabilitated themselves. The Act also excluded any person from the definition of Convention refugee where that person was excluded from the application of the Convention by the provisions of Article 1(F) of the Convention (pp. 2568).5

(c) The inla was not a particular social group and the claimant could not be granted refugee status on the basis of his fear of persecution arising from his membership of the inla. His fear subsisted whether or not he renounced his membership of the inla. Furthermore, membership of the inla did not come within any of the three categories of a particular social group. The members of the inla were not characterized by an innate and unalterable shared characteristic. The inla was not a group where the reasons for association were so fundamental to the claimant's human dignity that he could not be forced to dissociate from the group. The membership of the inla was not a voluntary association unalterable due to historical permanence. Mr Ward's fear was not based on a group characteristic but, instread, arose from acts done by him as an individual and for which the inla sought to punish him individually (pp. 25960).

(3) Refugee status arising from a well-founded fear of persecution for reason of political opinion was not limited to those situations where political beliefs were critical of a government or ruling party. It also included those circumstances where the State was not an accomplice to the persecution but was unable to protect the claimant. The political opinion need not have been openly declared but could have been perceived by the persecutors from the individual's actions. Indeed, the political opinion need not actually be the claimant's true belief but...