CHAPTER FOUR
EXTENDING
THE POLITICAL OFFENSE ANALOGY IN REFUGEE LAW
4.1
Draft Evasion/Military Desertion
4.2
Unlawful Departure/Stay Abroad
4.3
Iran's 'Dress Code'
4.3.1
Fatin v INS
4.3.2
Fisher v INS
4.3.3
Namitabar v Canada (MEI)
4.4
China's One Child Family Policy: Forced Sterilization and Forced Abortion
4.4.1
The US Case Law and Administrative Measures
4.4.2
The Canadian Cases
4.5
Conclusions regarding the Scope and Application of the Political Offender
Analogy in Refugee Law
Extending
the Political Offense Analogy in Refugee Law
[119] Unlike in the preceding
Chapter, the offenses discussed herein are not strictly analogous to those
giving rise to state obligations under the law of extradition. Primarily,
this is because they do not meet the test of 'double criminality'. Double
criminality refers to the requirement that the conduct upon which an extradition
request is based be criminal in both the requesting state and the host
state.(266) As Gilbert explains succinctly:(267)
"Double criminality is a widely accepted
standard of extradition, and properly used, it is a valuable protection
for a fugitive. It means that a state cannot obtain his surrender for conduct
not recognised as criminal in the asylum state. However, the emphasis must
be on the fugitive's acts or omissions, not on the precise requirements
of the criminal laws of each state in some search for equivalence,"
Although technical equivalence is not
necessary,(268) the legitimacy of the requesting
state's criminal law is judged, essentially, by reference to the domestic
norms of the host state. This approach is consistent with the reciprocal
nature of extradition law.(269) It also
enables a state to ensure that its own nationals are not subject to extradition
except for actions which would be considered criminal if they had taken
place at home.
[120] This Chapter examines
refugee claims based upon draft evasion/military desertion,(270)
unlawful departure/stay abroad,(271) violation
of the Iranian 'dress code'(272) and breach
of the Chinese 'one-child family policy.(273)
In my view, the common error made by decision-makers in these cases is
a failure to explore sufficiently the political context in which the offense
was (or will be) committed.(274) While the
analogy between these claimants and political offenders is by no means
a perfect one, analysis using extradition law principles to some extent
assures that this vital exploration of context occurs. For example, does
the offense in question challenge state authority? Indicators that the
state views an offense as threatening include whether it is characterized
as an act of disloyalty and whether it attracts disproportionate punishment.
Similarly, would the claimant have been able to publicly disagree with
the law or policy and seek to change it without risking serious harm?
4.1
Draft Evasion/Military Desertion
[121] Military offenses generally
are not considered political for the purposes of extradition. Instead they
constitute a distinct class of non-extraditable offenses.(275)
Thus, pursuant to the IRO's Constitution, deserters, like political offenders,
were neither excluded from, nor automatically included within, the Organisation's
mandate.(276)
[122] It seems axiomatic that
draft evasion and military desertion are perceived by states as a fundamental
challenge to their authority. As Goodwin-Gill asserts:(277)
"Military service and objection thereto,
seen from the point of view of the state, are issues which go to the heart
of the body politic. Refusal to bear arms, however motivated, reflects
an essentially political opinion regarding the permissible limits of state
authority; it is a political act."
This position has not been embraced by
decision-makers, however. Most decisions neither acknowledge, nor refute,
the political nature of draft evasion and desertion, but focus instead
on the fact that the laws punishing these acts do not discriminate on any
of the grounds identified in the 1951 Convention.(278)
For example, in Musial v Canada (MEI), Pratte JA declared:(279)
"A person who is punished for having
violated an ordinary law of general application, is punished for the offense
he has committed, not for the political opinions which may have induced
him to commit it. In my opinion, therefore, the Board was right in assuming
that a person who has violated the laws of his country of origin by evading
ordinary military service, and who merely fears prosecution and punishment
for that offense in accordance with those laws, cannot be said to fear
persecution for his political opinions even if he was prompted to commit
that offense by his political beliefs."
[123] Even if a decision-maker
accepts the objective political nature of draft evasion and military desertion,
the question of the claimant's subjective motivation remains. It is not
difficult to conceive of non-political objections to military service.
The IRO, the UNHCR Handbook and the case law all agree that a general
dislike of military service or fear of combat cannot found a refugee claim.(280)
There is less consensus, however, with regard to whether draft evasion
or desertion based on genuine political objections to military service
(other than those which are strictly a matter of conscience)(281)
may suffice.
[124] The IRO appears to have
accepted that "[t]he fact of desertion may ... be good evidence of a valid
objection on political grounds (unwillingness to fight for opposed regime)
..."(282) Similarly, paragraph 170 of the
UNHCR Handbook states that refugee status may be warranted when
"... a person can show that the performance of military service would have
required his participation in military action contrary to his genuine political,
religious or moral convictions, or to valid reasons of conscience."(283)
The Handbook's reference to both 'reasons of conscience' and 'genuine
political convictions' suggests that each concept was intended to convey
a distinct meaning.
[125] The notion of 'genuine
political convictions' is further elaborated in paragraph 171 of the Handbook:(284)
"Not every conviction, genuine though
it may be, will constitute a sufficient reason for claiming refugee status
after desertion or draft-evasion. It is not enough for a person to be in
disagreement with his government regarding the political justification
for a particular military action. Where, however, the type of military
action, with which an individual does not wish to be associated, is condemned
by the international community as contrary to basic rules of human conduct,
punishment for desertion or draft-evasion could, in light of all other
requirements of the definition, in itself be regarded as persecution."
This provision has been interpreted in
a manner which strictly limits the general principle set out in paragraph
170. Reluctance to be associated with a conflict condemned by the international
community has been treated, not as one justification for refusing military
service, but as the only viable alternative to basing a claim on conscientious
objection.(285) In my view, this is an
unnecessarily restrictive interpretation of the Handbook provision.
Also, by setting such a high standard, it foregoes any attempt to balance
a state's legitimate (but not unlimited) right to require military service
of its citizens with the individual's genuine political objections to such
service. Where an individual has no effective means of expressing her disagreement
with government policy or effecting change, other than by refusing to serve,
refugee status may be warranted.(286)
4.2
Unlawful Departure/Stay Abroad
[126] Severe penalization of
unlawful departure and stay abroad is a practice largely associated with
Eastern Europe(287) during the Cold War;
however, states such as China and Iran continue to strictly regulate their
citizens' right to travel abroad. Stringent exist laws enforce citizens'
loyalty, not only to their state, but to the governing regime. Moreover,
states which severely penalize unlawful departure and stay abroad tend
to characterize these offenses as political, ie, treason or defection.(288)
[127] Even if a decision-maker
recognises the objective political nature of the unlawful departure or
stay abroad provisions in question, the issue of the claimant's subjective
motivation remains. It is not difficult to portray a claimant's decision
to breach an exit law as mere opportunism, or as an act done solely to
secure refugee status.(289)
[128] In my view, provided the
claimant's motivation in violating the law is genuine (ie, not mere opportunism),
the Convention reason requirement is satisfied by the political nature
of the offense. In practice, this approach differs little from that advocated
by the UNHCR Handbook which accepts that the Convention reason requirement
may be satisfied by reference to the claimant's motives for leaving or
remaining outside of her country.(290)
4.3
Iran's 'Dress Code'(291)
[129] Two cases, Fatin v
INS(292) and Fisher v INS(293)
represent the somewhat ambiguous state of the US jurisprudence regarding
refugee claims based on violation of Iran's dress code. In the Canadian
context, I will discuss Namitabar v Canada (MEI)(294)
and the guidelines regarding gender-related persecution.(295)
4.3.1
Fatin v INS
[130] Fatin's claim was based
solely on circumstances which had arisen since her entry into the US (essentially,
the ousting of the Shah and rise to power of Khomeni).(296)
Also, on several occasions the Court stressed that it was entitled only
to refer to the administrative record, and not to subsequently presented
information concerning the treatment of women in Iran.(297)
It is not surprising, therefore, that the decision in Fatin displays
little appreciation of the political ramifications of non-compliance with
the dress code in Iran.(298) As Greatbach
observes, the chador took on ideological proportions from the outset of
the Iranian revolution:(299)
"As the chador symbolizes Islamic
nationalism in the eyes of the Iranian State, so it has become a symbol
of oppression for women who oppose the regime. When the first edicts regarding
female dress and appearance were made, women participated in public demonstrations
of their opposition. Latterly, with the quelling of organized opposition
and widespread persecution of public dissidents, refusal to wear the chador
became a form of silent, individual resistance when little else was possible."
[131] The Third Circuit held that
Fatin had failed to demonstrate that, due to her political views, complying
with Iran's gender-specific laws, including the dress code, would constitute
persecution;(300) or in the alternative,
that for reasons of conscience she would choose to violate the law despite
the consequences.(301) In my view, the
latter option is tantamount to requiring evidence of impending martyrdom.
The former demands of the Court extraordinary insight into the temperament
of the claimant, the depths of her political sentiments, and effects of
compromising them daily. Yet the administrative record provides sparse
context in which to decide this issue. I would assert, moreover, that the
Court's reliance on an absolute dichotomy between compliance and violation
is not grounded in reality. Breaching the dress code in a relatively inconspicuous
manner continues to be a way in which women can assert their opposition
to a regime which simply does not tolerate dissent.
4.3.2
Fisher v INS
[132] The decision of the Ninth
Circuit in Fisher v INS(302) devotes
substantial energy to distinguishing the case before it from Fatin,
asserting:(303)
"This claim differs from Fatin
in that it involves a claim of persecution based upon forced compliance
of the moral codes, not a claim that voluntary compliance itself
amounts to persecution."
'Voluntary' compliance is defined by the
Court as that which avoids any sanction, while 'forced' compliance means
conformity resulting from an encounter with the authorities.(304)
It held that it was unnecessary for Fisher to demonstrate future non-compliance
with Iran's gender specific laws.(305)
Rather, the Court asserted:(306)
"If the Jehovah's Witnesses in Canas-Segovia
would suffer persecution when forced to sacrifice their belief in pacifism,
we think it is clear that being forced to conform to, or being sanctioned
for failing to comply with, a conception if Islam that is at odds with
one's own also can rise to the level of persecution."
One is driven to question whether the
only factual distinction between the two cases is that Fisher had experienced
punishment for having breached the dress code prior to leaving Iran, whereas
Fatin had not. Presumably, Fisher's prior transgressions were persuasive
evidence of the depths of her political opposition to the Khomeni regime.
[133] In Fisher, the
question of whether the claimant faced persecution 'on account of' her
religious beliefs was remanded for consideration by the BIA in accordance
with the principles articulated by the US Supreme Court in Elias-Zacarias,
112 S.Ct. 812.(307) Nevertheless, the Ninth
Court did suggest that this issue might be analyzed in the following terms:(308)
"... if the evidence establishes that
one of the reasons for the existence and enforcement of a generally applicable
law is to oppress those with minority religious views, the existence of
the necessary motive [on the part of the persecutor] is clear."
4.3.3
Namitabar v Canada (MEI)
[134] Like Fisher, Namitabar(309)
concerned a claimant who had breached the dress code on prior occasions.
In allowing the application for judicial review, Justice Tremblay-Lamer
of the Canadian Federal Court (Trial Division) stressed the disproportionate
punishment and lack of due process associated with the dress code's implementation.(310)
This decision locates the claimant's violation of the dress code squarely
within its political context as an expression of political dissidence which
was, moreover, perceived as such by the governing regime:(311)
"In a country where the oppression
of women is institutionalized any independent view or act opposed to the
imposition of a clothing code will be seen as a manifestation of opposition
to the established theocratic regime."
According to Justice Tremblay-Lamer, Namitabar's
perceived opposition to the governing regime is sufficient to demonstrate
that her fear of persecution is connected with her political opinion.(312)
In other words, the claimant's motivation in violating the dress code was
not considered.
[135] In extradition law terms,
violation of the dress code represents a clear challenge to the authority
of the state. Moreover, the excessive punishment imposed is additional
evidence that offenders are not regarded as ordinary criminals. The case
law discussed above appears to recognise the objective political nature
of the dress code. However, as in the case of draft evasion and military
desertion, decision-makers have little difficulty envisaging, and attributing
to the claimant, a non-political motivation (ie, mere inadvertence) for
having violated the law, and consequently, determining that the Convention
reason requirement has not been met. A more appropriate approach is to
focus on the role of the dress code in maintaining absolute state authority
over women and perpetuating their relative powerlessness within Iranian
society:(313)
"... whether or not one considers
the dress code in Iran to be a law of general application is not determinative.
Most laws draw distinctions of one type or another; to determine whether
or not the distinctions are proper, we have to consider the effect
of the law on the claimant and members of her social group. We are of the
view that regardless of the current historical underpinnings of the female
dress code, the current effect of the code is to control women. ... This
is not to say that women who want to follow the dress code should not do
so, but the choice, both in terms of whether to practice hejab and how
to practice it, must be theirs as it is something which impacts profoundly
on how they see themselves and their place in society." (emphasis added)
Demonstrating the claimant's fundamental
marginalization within her own state should not necessitate proving malicious
intent on the part of the persecutor. The 'differential impact' analysis
quoted above is consonant with restricting refugee status to persons whose
disenfranchisement in their own state makes membership of a new community
the appropriate remedy.
4.4
China's One Child Family Policy: Forced Sterilization and Forced Abortion(314)
[136] The exact parameters of
the Chinese one child family policy remain hazy,(315)
and moreover, implementation of the policy varies between and within provinces.(316)
In particular, the responsibility of the central government for forced
abortion and forced sterilization is a matter of controversy. There appears
to be some consensus that while these measures may not be officially sanctioned,
government policy perpetuates and tolerates their use.(317)
Even where the state (defined for the moment as the Chinese central government)
is not identified as the agent of persecution in claims based on the one
child family policy, it is, at best, refusing to protect rather than unable
to protect its citizens from this particular harm.(318)
[137] Arguably, implementation
of China's population policy stretches the meaning of 'criminal prosecution'
to its limits. However, in practice, the problems of reasoning encountered
by decision-makers in this category of cases are very similar to those
which arise in cases where 'traditional' criminal prosecution is involved.
[138] The question of refugee
status predicated upon fear of forced abortion or sterilization for having
violated the one child family policy has arisen in Canada, the United States,
and New Zealand.(319) It seems to be generally
accepted that both forced abortion and forced sterilization constitute
'persecution' or, in other words, a serious violation of the claimant's
human rights.
139] There is little consensus,
however, as to whether this persecution is 'for a Convention reason'. Defining
those who breach or oppose the one child family policy and consequently
face forced abortion or sterilization as members of a particular social
group is an approach that has been utilized with varying degrees of success.(320)
Arguably, the confused state of the case law relates more to the difficulties
of interpreting and applying the phrase 'membership of a particular social
group' than the complexities of the one child family policy. In discussing
the case law, I will focus instead on whether violation of the Chinese
population policy may be characterized as a 'political' offense and the
consequences of such a breach constitute 'persecution on account of political
opinion.'
4.4.1
The US Case Law and Administrative Measures
[140] The United States Board
of Immigration Appeals (BIA) in Matter of Chang(321)
held that implementation of the one child family policy, even to the extent
that it includes involuntary sterilization, is not persecution for a Convention
reason.(322) This decision prompted a number
of administrative measures designed to counteract its effect.(323)
Essentially, each sought to characterise refusal to comply with the Chinese
population policy as an act of 'political dissent'.(324)
For various reasons, none of these administrative directives currently
has binding effect.(325)
In Guo Chun Di v Carroll,(326)
Ellis DJ held that the BIA case law and the various guidelines, interim
rules etc, amounted to "... an administrative cacophony undeserving of
judicial deference"(327) and proceeded
to consider the substance of Guo Chun Di's refugee claim. Referring to
US constitutional case law, he asserted that "... it is beyond dispute
that the expression of one's views regarding issues related to the right
to procreate is 'political'" and went on to characterize the act of refusing
to submit to the one child family policy as the expression of a political
opinion:(328)
"There can be no question that the
petitioner has made an 'overt manifestation' of his opposition to the PRC's
'one couple one child' policy, and that petitioner has been persecuted
for expressing his opposition. Petitioner and his wife openly expressed
their opposition to the PRC's population control policies by refusing to
comply with sterilization orders and by fleeing from their home village
after receiving government sterilization notices."
In my view, it is unfortunate that the
decision does not discuss the political significance of the one child family
policy in the Chinese context, relying instead upon the political nature
of views regarding procreation in the United States.(329)
Quite simply, the latter has little to do with the Chinese government's
perception of the claimant's actions.
4.4.2
The Canadian Cases
[142] The importance of assessing
whether an act is perceived as political within the context of the claimant's
own community is highlighted by Justice Heald of the Canadian Federal Court
of Appeal in Chan v Canada (MEI):(330)
"An analogy to criminal law is apt.
Breach of Criminal Code provisions is not, in general, viewed as a political
statement. In some contexts, the breach may become politically charged
and expressly intended as a political statement. This is not, however,
the case here where it has not been established that the breach was anything
more than inadvertent. Certainly, there is no evidence that the authorities
perceived the appellant's acts as a political statement or as a challenge
to their authority. Determination of whether the acts or views will be
perceived as a challenge to a persecutor's authority is, necessarily, contextual.
For example, in the case of a persecutor whose authority is heavily based
in religion, breach of a religious dictum may be perceived by that persecutor
as a challenge to its authority to rule whereas if religion is not integral
to the persecutor's authority, the breach of the same dictum would probably
not be perceived in the same way."
Despite his explicit recognition of the
importance of assessing the political nature of an act within the context
of the claimant's own community, Justice Heald's decision contains little
exploration of the role of the one child family policy in Chinese society.(331)
He relies instead on the claimant's failure to give evidence demonstrating
that his resistance to the policy was perceived as challenging the authority
of those who enforced it(332) and concludes:(333)
"In this case, I do not think that
the evidence supports a finding that the local Chinese authorities believe
that acceptance of the one child policy is integral to their authority
and hence a breach of that policy will not be perceived as a challenge
to their authority to govern."
[143] In rejecting that the claimant's
actions were political,(334) both Justice
Heald and Justice Desjardins make reference to the fact that forced sterilization
and forced abortion are not officially sanctioned by the Chinese central
government.(335) Note, however, that neither
decision goes on to deal with the case on the basis that the claimant faced
extra-judicial penalties, which was the approach taken in Cheung v Canada
(MEI), an earlier decision of the Canadian Federal Court.(336)
In Cheung, Justice Linden observed that:(337)
"... the appellant's fear is not simply
that she may be exposed to the economic penalties authorized by China's
one child policy. That may well be acceptable. Rather, the appellant, in
this case, genuinely fears forced sterilization; her fear extends beyond
the consequences of the law of general application to include extraordinary
treatment in her case that does not normally flow from that law."
[144] Chan's appeal was dismissed
by the Supreme Court of Canada.(338) Unfortunately,
both the majority and dissenting decisions of the Supreme Court turn on
whether the claimant's evidence before the Board had established that a
well-founded fear of forced sterilization if returned to China.(339)
Justice La Forest, dissenting, did suggest that the feared forced sterilization
may have been a punitive measure tied to Chan's pro-democracy activities.(340)
Other sources have documented the use of family planning regulations to
target activists.(341)
[145] In my view, there is cogent
evidence to suggest that the one child family policy meets the 'political
when viewed in context' test posited by Justice Heald in Chan.(342)
Population control is conceived of as integral to the future of the Chinese
state.(343) It is implemented by mobilizing
the entire population, not only to take responsibility for their own reproductive
choices, but also for those of their family, friends, neighbours and co-workers.(344)
This approach perpetuates forced abortion and sterilization, and in my
view, the state should be held responsible for these consequences.(345)
Opposition to the policy directly challenges the legitimacy of pervasive
state control of procreation and state authority in general. Most importantly,
the Chinese state itself characterizes such opposition as political.(346)
4.5
Conclusions regarding the Scope and Application of the Political Offender
Analogy in Refugee Law
[146] In my view, each of the
offenses discussed above is - when viewed in the context of the claimant's
country of origin - a political offense. Military desertion and draft evasion
are inherently tied to the foundation of state authority. Unlawful departure
legislation, where the penalty is sufficiently serious to reach the level
of persecution, is inevitably characterised by the regime in question as
an offense of disloyalty to the state. Similarly, enforcement of Iran's
dress code and China's one child family policy is perceived by the respective
states as intimately related to the maintenance of state authority. As
with the offenses discussed in Chapter three, general human rights conditions
in the home state are relevant to whether the claimant is justified in
violating the law because they often determine whether alternative means
of effecting change are available.
[147] In the examples discussed,
even where decision-makers accept the political nature of the claimant's
offense, the question of subjective motivation tends to muddy the waters.
The dress code cases, in particular, demonstrate the difficulties of reliance
on the subjective motivation of the claimant to determine whether protection
is warranted. In my view, extradition law's approach - a genuine political
motive is not determinative of the political nature of the act in question,
but its absence may be fatal to the claim for protection - would help to
inject some conceptual clarity into the case law. With regard to laws which
are political but not intrinsically discriminatory, such as the prohibition
of draft evasion, motive may be a legitimate consideration in balancing
state and individual rights. It is more difficult, however, to assert that
a woman's motive in violating the dress code should be relevant because
the law in question plays a central role in the state's oppression of women.
[148] The state's motivation
in punishing the claimant also plays a role in the cases examined. Decision-makers
frequently insist that the state acts simply to enforce the law, and therefore
is not persecuting the claimant because of her political opinions. This
approach ignores the role of the law in question in circumscribing the
range of acceptable political opinions within the society. Violation of
such a law is perceived by the state as clear manifestation of unacceptable
political beliefs.
[149] More importantly, unbending
insistence on unequivocal evidence of the persecutor's discriminatory intent
is unrealistic and places too high a burden on claimants.(347)
Because the persecutor in question - the state - is an institution rather
than an individual it is difficult to ascribe to any of its actions a single
purpose. Even if we surmount this obstacle, given that persecutory activities
can affect a state's relations with other states and position within the
international community, it is not uncommon for it to claim a benign or
neutral motive in order to disguise persecution as legitimate state activity.
[150] In my view, where the
claimant may be characterized as a political offender, it is likely that
their claim satisfies the Convention reason requirement. Decision-makers
need to be less mechanical in their interpretation of the definition and
more willing to apply the general notion of non-discrimination that underlies
the Convention grounds. Discrimination is not solely a question of the
persecutor's intent but also of effect. The Refugee Convention exists not
to punish states, but to protect individuals who are unable to secure their
basic human rights and unable to effect change within their home state.
Endnotes - Chapter Four
266. See,
La Forest, at 71.
267. Gilbert,
at 54. See, also Van den Wijngaert, C, "Double Criminality as a
Requirement to Jurisdiction" in Jareborg, N, Double Criminality; Studies
in International Criminal Law (1989) 43.
268. See,
La Forest, at 71:
"... an exact correspondence
between offenses in two countries cannot be expected. It is, therefore,
not necessary that the crime concerned bears the same name in both countries.
It is sufficient if the acts constituting the offense in the demanding
state also amount to a crime in the country from which the fugitive is
sought to be extradited even though it may be called by a different name.
... it is the essence of the offense that is important."
269. Bassiouni
MC and Wise, EM, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute
in International Law (1995) at 37:
"[M]odern state practice
generally reflects the view that, in the absence of an extradition treaty,
there is no right under international law to insist that fugitives be surrendered.
Extradition, as well as other forms of interstate cooperation, turn instead
largely on reciprocal self-interest. ... Each state has an interest in
getting back fugitives from its own law who flee to a foreign country.
But to secure their return on a regular basis, a state is likely to have
to agree to extradite in its own turn. This is the main reason for concluding
extradition treaties. Such treaties are predicated on considerations of
mutual advantage on the party of the essentially self-regarding members
of a 'society of states'."
See, also, Shearer, at
137-138.
270. Infra,
at paras [121-125].
271. Infra,
at paras [126-128].
272. Infra,
at paras [129-135].
273. Infra,
at paras [136-145].
274. The
Convention definition requires prospective risk of persecution, not past
persecution. The alternative formulation "or will be" is used above because
while the majority of prosecution/persecution cases involve situations
where the claimant has committed an offense and fears the consequences,
it is not inconceivable that a claimant may argue that she will commit
an offense in the future if returned to her country of origin. This
argument could arise, for example, where the claimant asserts that she
will be compelled to violate the law because of her political or religious
beliefs (see, Fatin v INS, infra, at paras [130 &
131].
275.
Grahl-Madsen, (1966), at 81, does suggest, however, that draft evaders
may be regarded as political offenders.
276.
See, supra, note 29.
277.
Goodwin-Gill, (1983) at 34-35.
278.
Similarly, decision-makers will often assert that the claimant has failed
to demonstrate that the persecutor's intent is to punish her because of
her political opinions. Von Sternberg argues persuasively that such an
approach is:
"... inappropriate where
the individual's case is based on public policy considerations, such as
protecting those who rebel against undemocratic governments or providing
a haven for those who resist humanitarian law violators. In the latter
case, it should be enough to demonstrate that the applicant will be punished
as though for a political crime, and that the evasion or desertion has
been occasioned by considerations of conscience."
Von Sternberg, MR, "Political
Asylum and the Law of Internal Armed Conflict: Refugee Status, Human Rights
and Humanitarian Law Concerns" (1993) (5(2) International Journal of Refugee
Law 152, at 180.
279.
Musial v Canada (MEI) [1982] 1 FC 290 (FCA). This position has been
modified by the Federal Court of Appeal in Zolfagharkhani v Canada
[1993] 3 FC 540 at 549 (per MacGuigan JA):
"[s]ince any given law of
general application in a dictatorial or totalitarian state may well be
an act of political oppression, I believe it is self-evident that such
an absolute proposition of prosecution, not persecution, could not be supported
in relation to the majority of countries from which refugee cases arise."
280. IRO,
Manual for Eligibility Officers, supra, note 27, at 13: "... desertion
merely from dislike of the rigours of military life will not provide grounds
for valid objection." UNHCR Handbook, supra, note 130, at
paragraph 168: "[a] person is clearly not a refugee if his only
reason for desertion or draft evasion is his dislike of military service
or his fear of combat."
281.
The substantial body of case law dealing with refugee claims based on conscientious
objection will not be discussed in this dissertation. I would suggest that
the relationship between conscientious objectors and political offenders
may be characterised as follows: conscientious objectors are a special
category of political offenders that the international community through
international human rights law has chosen to recognise explicitly.
282.
IRO, Manual for Eligibility Officers, supra, note 27, at 13. Thus,
Grahl-Madsen, (1966), at 81, asserts that:
"[the] IRO did not consider
common deserters, persons who had refused military service, or persons
who might be punished for their prolonged absence from their home country,
to come within the competence of the Organization, unless the action
of the individual concerned was allied with clear political opinions."
(emphasis added)
283. Supra,
note 125, at paragraph 170.
284.
Supra, note 125, at paragraph 171.
285.
See, for example, the jurisprudence discussed in Musalo, K, "Swords
into Ploughshares: Why the United States Should Provide Refuge to Young
Men who Refuse to Bear Arms for Reasons of Conscience" (1989) 26(4) San
Diego Law Review 849, 857. For an example of a decision applying paragraph
171, see, Ciric v Canada (MEI) [1994] 2 FC 65, where the Trial Division
held that the appellants' avoidance of military service in the Serbian-Yugoslav
army was justified because the Yugoslav conflict was condemned by the world
community. Although Ciric was explicitly decided on this basis,
it is interesting to note that the claimants' express reasons for evading
military service were based primarily on who they would be required to
right, not the way in which the conflict was being conducted.
286.
Grahl-Madsen, (1966), at 250-251 provides the following illustration:
"Let us assume that we are
faced with three deserters or draft evaders. One has refused to do military
service because he does not want to lend his support to a regime which
he considers oppressive. Another has deserted the armed forces of a government
which exercises - in his opinion unjustly - control over the territory
where he belongs. The third has evaded the draft because he does not sympathize
with the alliance politics of his government (e.g. membership in NATO).
... the two former may qualify as refugees. With respect to the third one,
there is probably consensus to the effect that he may not invoke the Convention.
What is the distinction between these cases? In the two former cases the
person's political opinion is one which rejects the existing political
system in his home country or home territory. In the latter case there
is no such total rejection. Moreover, before and after his military service
'the third man' would be free to try to swing public opinion in his home
country his way, without fear of reprisals."
287. See,
Goodwin-Gill, (1983), at 31 note 48.
288.
Clearly, there are parallels to the Kolczynski case discussed, supra,
at paras [73-75].
289.
See, for example, Valentin v Canada (MEI) [1991] 3 FC 390, at 395
(FCA):
"Neither the international
Convention nor our Act, which is based on it, as I understand it, had in
mind the protection of people who, having been subjected to no persecution
to date, themselves created a cause to fear persecution by freely, of their
own accord and with no reason, making themselves liable to punishment for
violating a criminal law of general application."
290. Paragraph
61 of the UNHCR Handbook, supra, note 125, states:
"The legislation of certain
States imposes severe penalties on nationals who depart from the country
in an unlawful manner or remain abroad without authorization. Where there
is reason to believe that a person, due to his illegal departure or unauthorized
stay abroad is liable to such severe penalties his recognition as a refugee
will be justified if it can be shown that his motives for leaving or remaining
outside of the country are related to the reasons enumerated Article 1A(2)
of the 1951 Convention. ..."
The Canadian Federal Court of
Appeal in Valentin v Canada (MEI), supra, note 289, at 396, rejected
this approach, asserting that even where the claimant's departure is politically
motivated "... the direct relationship that is required between the sentence
incurred and imposed and the offender's political opinion does not exist."
291.
Iran's strict regulation of dress is not unique among Islamic countries.
292.
12 F.3d 1233 (3rd Cir. 1993).
293.
37 F.3d 1371 (9th Cir. 1994).
294.
(1993) 78 FTR 1 (FCTD).
295.
Canadian Immigration and Refugee Board, "Guidelines Issued by the Chairperson
Pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants
Fearing Gender-Related Persecution" (March 9, 1993). Hereinafter cited
as the "Canadian Gender Guidelines".
296.
Such claims are termed 'refugee sur place'.
297.
Fatin, supra, note 292, at 1241 and 1242-1243. Moreover, the Court
observed that: "... the evidence in the administrative record regarding
the way in which women in Iran are generally treated is quite sparse" (at
1241); and "... the administrative record does not establish that Iranian
feminists are generally subject to treatment so harsh that it may be accurately
described as 'persecution'."(at 1242)
298.
See, for example, the following passage, (ibid, at 1242):
"... while we assume for
the sake of argument that requiring some women to wear chadors may be so
abhorrent to them that it would be tantamount to persecution, this requirement
clearly does not constitute persecution for all women. Presumably,
there are devout Shiite women in Iran who find this requirement entirely
appropriate. Presumably, there are other women in Iran who find it either
inconvenient, irritating, mildly objectionable, or highly offensive, but
for whom it falls short of constituting persecution."
299. Greatbach,
J, "The Gender Difference: Feminist Critiques of Refugee Discourse" (1989)
1(4) IJRL 518, 521. See, also, Zolan, AJ, "The Effect of Islamization
on the Legal and Social Status of Women in Iran", (1987) 7 Boston College
Third World Law Journal 183.
300.
Fatin, supra, note 292, at 1242:
"... the petitioner's testimony
in this case simply does not show that for her the requirement of wearing
the chador or complying with Iran's other gender-specific laws would be
so profoundly abhorrent that it could aptly be called persecution."
301. Ibid,
at 1243:
"If the petitioner's political
opinion is given a narrower definition similar to her definition of her
'particular social group' - e.g, as the opinion that Iran's 'gender-specific
laws and repressive social norms' must be disobeyed on grounds of conscience
- then the administrative record, ... des not show that the petitioner
possesses that opinion."
302. 37
F.3d 1371 (9th Cir. 1994).
303.
Ibid, at 1381.
304.
Ibid, at 1381, footnote 7.
305.
Ibid, at 1383:
"Fisher need now show that
she purposely will fail to comply with the moral codes. ... As the Fifth
Circuit noted recently, to require 'martyrdom' is to 'ignore reality in
general and reasonable human behaviour in particular.' Rivas-Martinz,
997 F.2d at 1147."
306. Ibid,
at 1381. Note, similarly, that the United States Immigration and Nationality
Service, "Memorandum: Considerations for Asylum Officers Adjudicating Asylum
Claims from Women" (May 26, 1995), at 9, discusses the dress code cases
under the heading: "Violation of Fundamental Beliefs as Persecution".
307.
Ibid, at 1383.
308.
Ibid, at 1383.
309.
Namitabar v Canada (MEI) (1993) 78 FTR 1 (FCTD). See, also, Fathi-Rad
v Canada (Secretary of State) 77 FTR 41 (FCTD).
310.
Ibid, Namitabar, at 7:
"To my mind there is no
question that a penalty of 74 strokes of the whip for a breach of the clothing
code is disproportionate. Further, this penalty is inflicted without any
procedural guarantees. The authorities who arrest women not wearing chadors
can apply the penalty without appearing before a judge 'since the crime
is self evident.'"
See, also, Macklin, A,
"Refugee Women and the Imperative of Categories" (1995) 17 Human Rights
Quarterly 213 at 231-232:
"... even if one rejected
the contention that the discriminatory dress restrictions on Iranian women
are inherently persecutory, one might still conclude that the penalty for
violation of the rule is disproportionately severe in relation to the infraction.
It is the penalty, not the proscription, that constitutes persecution in
this example."
311. Ibid,
Namitabar, at 9. In similar vein, see, the Canadian Gender Guidelines,
supra, note 295, at 4:
"In a society where women
are 'assigned' a subordinate status and the authority exercised
by men over women results in a general oppression of women, their political
protest and activism do not always manifest themselves in the same way
as those of men.
The political nature
of oppression of women in the context of religious laws and ritualization
should be recognized. Where tenets of the governing religion in a given
country require certain kinds of behaviour exclusively from women, contrary
behaviour may be perceived by the authorities as evidence of an unacceptable
political opinion that threatens the basic structure from their which political
power flows." (emphasis in original)
312. Supra,
note 294, at 9.
313.
CRDD T95-03883, MacPherson, Aulach, 9 April, 1996, at 9.
314.
China's strict control of reproduction is somewhat unique. This is not
to suggest that other states do not seek to influence, by law or other
means, the reproductive choices made by their citizens. In fact:
"... many Asian and a few
Latin American countries, perceiving that rapid population growth threatens
their prospects for development, have enacted stringent laws to reduce
the birth rate. By contrast, the governments of most African, Middle Eastern
and Latin American countries, concerned with neither reproductive rights
nor population growth, have prohibited abortion and have limited access
to voluntary sterilizations and (particularly in sub-Saharan Africa and
the Middle East) have failed to make contraception widely available. Equally,
in Europe a number of countries are concerned with negative population
growth and ageing societies and have begun to induce people to have more
children": Refugee Appeal No. 3/91 Re ZWD (20 October 1992) at 40-41
(NZRSAA).
Nor would it be accurate to
suggest that China's resort to compulsory sterilization is unique. In 1976,
India permitted state legislatures to enact laws allowing for compulsory
sterilization and as a result several million forced sterilizations were
performed: see, Economic Measures in Fertility Policy and Human
Rights" in Population and Human Rights: Proceedings of the Expert Group
Meeting on Population and Human Rights, Geneva, 3-6 April 1989 (1990)
132, 136.
315.
Hull, E, Recent Population Policy in China (December 1991) Australian
International Development Assistance Bureau, Sector Report 1991, No.4,
at 5:
"It is virtually impossible
to tease out areas of consensus among Western experts over exactly what
is happening in the Chinese Family Planning programme, and what it signifies.
This is at least in part due to the very deep contradictory feelings they
have concerning the nature of the Chinese Communist system, and their opposing
opinions about the proper stance of Western governments towards a regime
which operates under obviously illiberal principles."
316. United
States Department of State, Country Reports on Human Rights Practices
for 1989, China (1990) 809. Interestingly, there is evidence to suggest
that implementation of the policy in Tibet, where the population is already
perceived as being in political opposition to the state, is particularly
harsh. See, Tobin Shiers, E, "Coercive Population Control Policies:
An Illustration of the Need for a Conscientious Objector Provision for
Asylum Seekers" (1990) 30 Virginia Journal of International Law 1007, 1014.
Tobin Shiers observes furthermore, that "[r]efugee reports from Tibet ...
indicate a difference in the level of medical attention given to women
who volunteer to have abortions and those who are coerced" (at 1014). See,
also, Devine, C and Rabgey, L, "Tibetan Women" (1995) 15 (2&3)
Canadian Woman Studies, 73; and Canadian Immigration and Refugee Board,
Human Rights Briefs: Women in China (October, 1993) 15-16, which
notes conflicting reports as to whether the one child policy is implemented
in Tibet.
317.
For example, the New Zealand Refugee Status Appeals Authority in
Refugee Appeal No. 3/91 Re ZWD (20 October 1992) at 37, concluded
that:
"The Government of China
does not condone forced abortion and sterilization. At most, government
officials continue to insist that family planning targets be met, thus
perpetuating the system in which coerced abortions and sterilizations will
occur. The state must be regarded as responsible for these acts."
318. Chan
v Canada (MEI) (1993) 20 Imm LR (2d) 181, at 219 (FCA) per Mahoney
JA (dissenting):
"The evidence does not lead
to the conclusion that the central government of China is unable to protect
its citizens from the excesses of the local authorities. Rather, it indicates
a central government which, by its passivity, is either tolerating or abetting
the enforcement of the population control policy by a means which it officially
disavows."
This view was affirmed by Justice
La Forest (dissenting) of the Supreme Court of Canada in Chan v Canada
(MEI) File no 23813, October 9, 1995 (SCC) at para 63.
319.
Refugee Appeal No. 3/91 Re ZWD (20 October 1992), (NZRSAA).
320.
See, for example, Matter of Chang, Interim Decision 3107 (BIA, May
12, 1989); Cheung v Canada (MEI) [1993] 2 FC 314 (FCA); and Refugee
Appeal No. 3/91 Re ZWD (20 October 1992) 59-84, (NZRSAA).
321.
Matter of Chang, ibid. Note that the primary ground argued was particular
social group not political opinion.
322.
Ibid, at 10. Persecution might occur, however, where "... the policy
was being selectively applied against members of particular religious groups
or was in fact being used to punish individuals for their political opinions."
However:
"This does not mean that
all who show that they opposed the policy, but were subjected to it anyway,
have demonstrated that they are being 'punished' for their opinions. Rather,
there must be evidence that the governmental action arises for a reason
other than general population control (e.g., evidence of disparate, more
severe treatment for those who publicly oppose the policy)." (at 11)
323. The
various administrative directives are canvassed in detail in Guo Chun
Di v Carroll 842 F. Supp. 858, 862-864. (ED Va. January 14, 1994) (reviewing
the Immigration Judge's decision in In re Guo, No. A72 762 107,
(BIA August 18, 1993)).
324.
Guo Chun Di v Carroll, ibid, at 862, refers to US Department of
Justice policy guidelines issued to the INS which were described as "...
noting that the PRC government views such defiance [i.e. opposition to
involuntary sterilization] as an act of 'political dissent' ..." citing
135 Cong. Rec. s 8244 (daily ed. July 19, 1989). See, also, Memorandum
from Edwin Meese III, Attorney General, to Alan C Nelson, Commissioner,
US Immigration and Naturalization Service, P1.Ex.A (Aug. 5, 1988) directing
that INS officers give careful consideration to asylum applications based
on refusal to comply with the Chinese population policy stating: "... there
is evidence to support the assertion that such [refusal] is viewed by PRC
officials as 'political dissent'."
325.
See, Chen Zhou Chai v Carroll 48 F 3d 1331 (4th Cir.
March 6, 1995); Xiu Qin Chen v Slattery No. 94 Civ. 2568 (EDNY September
6, 1994); Peng-Fei Si v Slattery No. 93 Cir. 8069, (SDNY, October
13, 1993); and contra, Xin-Chang v Slattery 859 F Supp 708 (SDNY
August 5, 1994).
326.
Supra, note 325.
327.
Ibid, at 867.
328.
Ibid, at 873. It is useful to compare the approach taken in Chen
Zhou Chai v Carroll 48 F 3d 1331, at 1343 (4th Cir. March
6, 1995) where the Circuit Judge held:
"The evidence shows only
that Chen violated the PRC's 'one couple, one child' policy and that the
government took action in response to his violations. No one can question
the severity of the sanctions, which included forcing his wife to abort
her third pregnancy and requiring him to undergo sterilization, but Chen
did not demonstrate that the government took any actions against him for
a reason other than his failure to comply with the population control policy."
329. Moriarty,
TA, "Guo v Carroll: Political Opinion, Persecution, and Coercive
Population Control in the People's Republic of China" (1994) 8 Georgetown
Immigration Law Journal 469, criticizes the decision's failure to refer
to international law regarding the right to procreate.
330.
(1993) 20 Imm LR (2d) 181, at 194-195 (FCA).
331.
Ibid, at 193-195.
332.
Ibid, at 193. In dissent, Justice La Forest of the Supreme Court
of Canada takes a very different approach to this issue, see, Chan,
infra, note 338.
333.
Ibid, at 195. Accord, Refugee Appeal No. 3/91 Re ZWD (20
October 1992) at 59 (NZRSAA): "[t]here has been no evidence to suggest
that opponents of China's family planning policies are imputed with a political
or religious belief ..."
334.
It is important to note that both Justice Heald and Justice Desjardins
found that Chan had not shown that he faced forced sterilization if he
returned to China (at 187-189 and 197 respectively). In my view, this conclusion
colours their alternative findings with regard to whether the persecution
faced was 'for a Convention reason'. Conversely, Mr Justice Mahoney (dissenting)
held that "... fulfilment of [the claimant's] commitment to undergo forced
sterilization would only be unnecessary if his wife were to be sterilized
instead" (at 217), and moreover, Chan's claim could not be distinguished
from the Federal Court of Appeal's earlier decision in Cheung v Canada
(MEI) [1993] 2 FC 314, (at 223-224).
335.
Chan, supra, note 330, per Heald, JA, at 194; and Desjardins, JA,
at 207:
"In view of the inference
made by the Supreme Court in Ward that Ward's refusal on moral grounds
to execute orders from the Irish National Liberation Army became politically
significant, must I consider here that the appellant's action, motivated
in defence of his basic human rights, may be viewed as a gesture of defiance
to the national authority, particularly since an authoritarian form of
government is in place?"
"I entertain grave doubt
that I can properly make such an inference in the absence of specific evidence
to this effect and considering that the local authorities themselves, in
imposing sterilization, are not acting with the full recognition of the
state, although such tacit recognition might exist."
336. [1993]
2 FC 314 (FCA).
337.
Ibid, at 323.
338.
Chan v Canada (MEI) File no. 23813, October 19, 1995 (SCC).
339.
Ibid. Justice Major , (for the majority: Sopinka, Cory, Iacobucci,
and Major JJ.) stated (at para 137):
"The appellant failed to
adduce any evidence for the Board that forced sterilization is actually
carried out and not merely threatened by the local authorities in his area.
Evidence with respect to the enforcement procedures utilized within a claimant's
particular region at the relevant time should be presented to the Board.
... In this case, the appellant failed to provide either documentary evidence
or anecdotal evidence to substantiate his claim that the pressure from
the Chinese authorities to submit to sterilization would extend beyond
psychological and financial pressure to actual physical coercion."
Conversely, Justice La Forest,
(dissenting: La Forest, L'Heureux-Dubé and Gonthier JJ.) asserted
(at para 63):
"... I find it neither necessary
nor possible from the evidentiary record to determine the precise degree
to which the Chinese government is involved in sanctioning the particular
conduct of its own local officials. It will often be the case that a refugee
claimant will not know with any certainty the operational structure of
his or her persecutor when such actor is a government or organization.
Indeed, it is quite conceivable that the refugee may only have a vague
notion as to why he or she is being persecuted."
340. Ibid,
at para 92:
"I think that there was
sufficient evidentiary basis for the Board to conclude that the PSB may
have wished to force this appellant to endure this invasive surgery as
a cumulative punishment for his sympathies and actions contrary to the
government. The appellant's testimony that the PSB derided him as an 'enemy
of the class' and accused him of acting 'purposely against the government'
upon learning of the birth of his second child, can support a conclusion
that, from the perspective of local authorities, his violation of the population
policy was linked to his known political stance."
341. See,
for example, Human Rights Watch/Asia, "China: Keeping the Lid on Demands
for Change" vol 7(7) (June 1995) 5-6 which notes the case of Zhang Lin,
a labour activist:
"Zhang and his wife, Ji
Xiao, had been living together for two years and had a newborn daughter
when he was picked up by police on May 28, 1994. According to his wife,
they were not officially married because her work unit had never given
her the necessary 'permission to marry' document. The failure gave the
police a convenient pretext to detain Zhang ... [who] received a three-year
administrative sentence of 're-education through labour'."
342. Supra,
note 330 and accompanying text.
343.
Hartmann, B, Reproductive Rights and Wrongs: The Global Politics of
Population Control and Contraceptive Choice (1987) at 147:
"The current regime wants
to launch China firmly into the modern industrial era and aims to attain
a per capital GNP of $2,000 by the year 2000 - more than three times the
level of today. To achieve this extraordinary target would require exceptionally
high rates of economic growth and, in the Chinese leadership's view, very
low rates of population growth."
344. United
States Department of State, Country Reports on Human Rights Practices
for 1990, China (1991), cited in Chan, supra, note 330, at 216:
"Local officials have great
discretion in how, and how strictly, the policy is implemented. Because
penalties can be levied against local officials and women's work units,
many individuals are personally affected, providing an additional potential
source of pressure."
See, also, Canadian Immigration
and Refugee Board, Human Rights Briefs: Women in China (October,
1993) 13-14, discussing the role of the work unit and neighbourhood committee
in enforcing the one child family policy.
345.
Supra, notes 316 and 317.
346.
Lin, SM, "China's One-Couple, One-Child Family Planning Policy as Grounds
for Granting Asylum - Xin-Chang Zhang v Slattery, No 94, Civ. 2119
(SNDY Aug. 5, 1994)" (1995) 36 Harvard Internati0onal Law Journal 231,
at 242:
"... there exists ample
evidence that Chinese authorities regard family planning violations as
an ideological crime, with punishment driven in part by the desire to deter
political dissent. First, to some PRC officials, those who wilfully fail
to comply with the policy are 'guilty of an ideological offense' and such
non-compliance is sometimes 'treated as a crime against the state'. Second,
there exists substantial evidence that punishment for violation of the
policy is disproportionately severe." (Citing Bannister, J, China's
Changing Population (1987) 184-192.)
See, also, Tobin Shiers,
E, "Coercive Population Control Policies: An Illustration of the Need for
a Conscientious Objector Provision for Asylum Seekers" (1990) 30 Virginia
Journal of International Law 1007, at 1015:
"The government's substantial
influence on the actions of local officials remains evident ... When some
localities relaxed the standards for authorizing second births, they were
told that they were 'ideologically confused'. Similarly, Communist Party
newspapers have praised those localities with harsh 'mobilization' practices
and have advocated punishment for those who 'sabotage' family planning
by such acts as removing IUDs or having more than one birth."
347. As
the dissenting judgment of the Canadian Supreme Court in Chan, supra,
note 338, observes: "... it is quite conceivable that the refugee may only
have a vague notion as to why he or she is being persecuted."