Discrimination As A Basis For A Well Founded Fear Of Persecution PDF Download

This special issue of “RefLex” - a periodical prepared by Legal Services, Immigration and Refugee Board in Canada, is on the interpretation of the definition of persecution under the 1951 Convention. The issue features three topics. The first topic is entitled: 'Prosecution or Well-founded Fear of Persecution?' -- which analyses the question of whether an act constitutes prosecution or is rather the basis for a well-founded fear of persecution, providing summaries of cases of Salvadoran military deserters and draft evaders and of Iranian women who did not conform to the Islamic dress code -- claims which presented the issue of prosecution versus persecution. This section also contains a comment, with reference materials, and a framework of analysis enumerating the number of factors to consider when deciding the 'persecution or prosecution' issue. The second topic is entitled: 'When does Discrimination amount to Persecution?' -- providing the various approaches to the issue with summaries of cases involving discrimination on the basis of religion and religious persecution in the former Soviet Union and Pakistan. This section provides a comment and framework of analysis, along with reference sources, of discrimination-based claims to determine whether 'cumulative grounds' and 'consequence of a substantially prejudicial nature' form the basis of a well-founded fear of persecution. The third and final topic is entitled: 'State Complicity: A Requirement of the Definition?'. This section focuses on the Ward decision, in which the Federal Court of Appeal held that state complicity is a requirement of the definition of the Convention refugee where a claimant is unwilling to avail himself of his country's protection. This section also reviews decisions in which complicity was a requirement and cases not requiring complicity -- where evidence of ineffective protection was sufficient, with summaries of cases involving claimants from El Salvador and Sri Lanka. The comment under this topic states that since the lack of protection is the very essence of the definition, state complicity is not a factor that justifies the fear but rather one factor among others to be considered in analysing the alleged fear of persecution. The topic ends with a list of reference materials concerning the requirement, if any, of state complicity or involvement in the persecution feared.