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Tag: FearofPersecution

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RAD File No VB9-03573 

Date: 20 November 2019 

Court: Immigration and Refugee Board of Canada, Refugee Appeal Decision 

Citation: [2019] RADD No 2229 

Summary by: Madison Bruno 

Short summary  

The Refugee Protection Division (RPD) rejected a claim for refugee protection because it found an Internal Flight Alternative (IFA), Port Harcourt, within Nigeria. The Appellant claimed that the RPD erred in its IFA test because the alternate location was unsafe and unreasonable. The Refugee Appeal Board dismissed the appeal but accepted evidence regarding effects of climate change in Nigeria. 

Link to original judgement  

Click here to open the case in PDF format

Weight of decision  

The federal Immigration and Refugee Protection Act (IRPA) gives the Immigration and Refugee Board of Canada jurisdiction to hear and decide cases on immigration/refugee matters. Their decisions are persuasive but not binding precedent and are subject to judicial review at the Federal Court. 

Key facts 

Appellant alleged he was attacked by Fulani Herdsmen in 2016, following several altercations over their cattle drinking from his fishponds. He claimed that he was hospitalized for 14 months. Appellant fled Nigeria in 2018, travelled through the U.S., then arrived in Canada to seek refugee protection.  

Canada’s Refugee Protection Division rejected appellant’s initial application for asylum, prompting an appeal to the Refugee Appeal Board. 

Summary of holding 

The Refugee Appeal Board utilized a two-part legal test for assessing whether appellant had a reasonable Internal Flight Alternative (IFA): 

“First, the Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted, and/or no danger of torture, risk to life, or risk of cruel and unusual treatment or punishment in the proposed IFA.” (¶ 51) 

“Second, conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, for the claimant to seek refuge there.” (¶ 52) 

“Once an IFA has been identified, the Appellant is responsible for demonstrating that the IFA is unsafe or unreasonable.” (¶ 53) 

The Appeal Board then gave a summary of the documentary evidence regarding Fulani Herdsmen used by the Refugee Protection Division (RPD) in its original decision: 

“The NDP [National Documentation Package] states that climate change and insecurity in Nigeria’s northern region have triggered a southward migration of Fulani Herdsmen, resulting in conflict between local farmers and the Herdsmen as they search for land to graze their cattle. The conflicts occur primarily in Nigeria’s Middle Belt, including the states of Adamawa, Benue, Kogi, Kwara, Nasarawa, Niger, Plateau, Taraba, and the Federal Capital Territory.” (¶ 55) 

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AV (Nepal) [2017] NZIPT 801125, 26 

Date: 22 September 2017 

Court: New Zealand Immigration and Protection Tribunal 

Citation(s): [2017] NZIPT 801125, 26 

Short summary 

Appellants, suffering from PTSD, claimed that they could not return to Nepal due to fear induced by the deadly 2015 earthquake. The Tribunal denied them leave to remain as they had not suffered from persecution resulting from actions of the State and did not meet the definition of a refugee under the 1951 Refugee Convention.  

Summary by: Lucas Robinson  

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision 

The New Zealand Immigration and Protection Tribunal (NZPT) is an independent judicial body that was established under § 127 of the Immigration Act 2009. The Tribunal has jurisdiction to hear appeals against immigration and refugee decisions made by State bodies. As appealing to the High Court can only be made on a point of law, the NZPT decisions carry substantial weight in domestic law. 

Key facts 

Appellants, a married Nepalese couple, appealed the decision made by a refugee and protection officer that they were not to be granted refugee status in New Zealand. They argued that following the April 2015 earthquake in Nepal, they had been diagnosed with post-traumatic stress disorder (PTSD) and feared the prospect of returning to Kathmandu. The earthquake rendered their home unhabitable and for a period of time they slept in tents. However, although they partly repaired their home, evidence was offered that they often slept on the veranda due to the fear of aftershocks. Appellants argued that they both felt much safer residing in New Zealand where their son and his family had been granted residence status and had purchased a home. Additionally, the Appellants’ General Practitioner gave evidence indicating that the wife did in fact suffer from PTSD and that both of the Appellants suffered from physical injury on account of the earthquake, which had left them in chronic pain for some time.  

Summary of holding 

The Tribunal determined that the relevant tests were set out in the Immigration Act 2009 under § 194(1)(c). Namely, it must be found that appellants are refugees under the 1951 Refugee Convention, protected persons under the 1984 Convention Against Torture, or protected persons under the 1966 International Covenant on Civil and Political Rights (ICCPR) to receive asylum.  

In regard to the 1951 Refugee Convention, it was necessary for the Appellants to show, as per Article 1A(2), that “owing to a well-founded fear of being persecuted,” they were unable to return to Nepal on account of their “race, religion, nationality, or membership of a particular social or political group”.  The Tribunal followed the view in DS (Iran) [2016] NZIPT 800788, that “being persecuted” required serious harm arising from the sustained or systemic violation of internationally recognised human rights, demonstrative of a failure of state protection. Additionally, a fear of being persecuted is established as well-founded when there isa real, as opposed to a remote or speculative, chance of it occurring (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). The Appellants acknowledged that they did not fear the Nepalese state itself, but rather the fear of future earthquakes and the prospect of returning to Kathmandu without the support of their children. In light of this, the Tribunal cited AF (Kribati) [2013] NZIPT 800413, a case that set out whilst natural disasters could involve human rights issues, the definition set out in the 1951 Refugee Convention still had to be satisfied.  

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AF (Tuvalu) [2015] NZIPT 800859

Date: 20 October 2015

Court: New Zealand Immigration and Protection Tribunal

Citation: [2015] NZIPT 800859

Short summary

This case was heard before the New Zealand Immigration and Protection Tribunal. It is an appeal against the decision taken by a refugee and protection officer to deny refugee status or protected person status to the appellant, a 25-year-old man of Tuvaluan nationality who had been served with a deportation order. The appellant based his appeal on the claim that he had a real chance of being persecuted if returned to his country of nationality in relation to an infringement of his right to work and of his right to safe drinking water. The appellant also claimed that his deportation to Tuvalu would be a violation of his daughters’ rights under the 1989 Convention on the Rights of the Child. The Tribunal dismissed the appeal on the ground that the appellant could reasonably access clean drinking water and reasonably attempt to gain employment in Tuvalu.

Summary by: Lucas Robinson

Link to original judgement

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Weight of decision

The New Zealand Immigration and Protection Tribunal is an independent judicial body and has jurisdiction to hear appeals against deportations, refugee claims, and other immigration decisions. A decision from the New Zealand Immigration and Protection Tribunal can be reviewed by the High Court only if an appeal is made on a point of law. In that sense, the New Zealand Immigration and Protection Tribunal’s decisions carry substantial weight in New Zealand domestic law.

Key facts

The appellant was a citizen of Tuvalu, who was 25 years old at the time of the hearing. In 2003, he moved to New Zealand with his mother. This event forced him to drop out of school in Tuvalu. He has been living in New Zealand since then and never went back to school.  In 2008, he married a New Zealand citizen and they had two daughters together. Between 2008 and 2014, the appellant was convicted of multiple offences/crimes in New Zealand. As a result, in July 2014, the appellant was served with a deportation order. In December 2014, the appellant submitted a claim to be recognised as a refugee or as a protected person. A refugee and protection officer denied his claim. This case is the appeal against the aforementioned refusal.

The appellant appealed the decision on three grounds. First, the appellant fears returning to Tuvalu because of the lack of employment opportunities. Indeed, he fears that the government of Tuvalu will discriminate against him due to his criminal convictions and lack of formal education, therefore violating his right to work. Second, the appellant claims that, if returned to his country of nationality, he would not be able to exercise his right to access safe drinking water due to the effects of climate change. Third, the appellant claims that his deportation to Tuvalu would violate his daughters’ rights under the 1989 Convention on the Rights of the Child.

Previous instances

In July 2014, the appellant was served with a deportation order as a result of his convictions for crimes he committed between 2008 and 2014. His attempt to get this deportation order revoked was unsuccessful. Facing deportation, the appellant submitted an application to be recognised as a refugee or protected person. A refugee and protection officer declined to grant the appellant’s application.

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AF (Kiribati) [2013] NZIPT 800413

Date: 25 June 2013

Court: New Zealand Immigration and Protection Tribunal

Citation(s): AF (Kiribati) [2013] NZIPT 800413, New Zealand: Immigration and Protection Tribunal, 25 June 2013

Short summary

Sea level rise and storms in Kiribati did not create a claim to protection under the Refugee Convention, the Convention Against Torture, or the International Covenant on Civil and Political Rights. These environmental disasters may create circumstances in which persecution can occur, and that persecution might give rise to a protection claim.

Summary by: Joseph Lavelle Wilson

Link to original judgement

Click here to open the case in PDF format

Weight of decision

This is the decision of an administrative tribunal and holds moderate weight within the jurisdiction.

Key facts

AF, a citizen of Kiribati, requested protection and/or refugee status from the government of New Zealand after changes to his home country’s environment caused by sea level rise associated with climate change.

Kiribati is a small nation in the Central Pacific Ocean made up of 33 atolls. The tribunal reviewed evidence regarding the situation in Kiribati. A 2007 National Adaptation Programme of Action filed by Kiribati under the United Nations Framework Convention on Climate Change provided a bleak picture of the impact of sea level rise on the islands of Kiribati. According to the programme the maximum height of the atolls is three-four meters above sea level, flooding and erosion are rife, and the primary source of potable water for most people in Kiribati – lenses of freshwater floating on seawater at the centre of some atolls – is at increasing risk of saltwater intrusion from storm surges.

AF’s testimony about his life in Kiribati was also reviewed by the tribunal. He was born in the 1970s on a small islet north of Tarawa, the main island and capital of Kiribati. He moved to Tarawa after finishing his schooling. In the early 2000s, more people from other atolls began moving to Tarawa, resulting in overcrowding and conflict. Flooding and erosion worsened over time, causing significant hardship to AF and his family. Eventually AF moved to New Zealand where he made his claims for protection.

Summary of holding

Although climate-based claims to protection may be possible, in this case the tribunal found that there was no evidence to support AF’s claim that he had a well-founded fear of persecution on the basis of a protected ground, and so his claims to protection were dismissed.

Important judgement points:

  • AF’s evidence about the situation in Kiribati was accepted: The tribunal found that the South Tarawa area of Kiribati was struggling to carry its population due to the compromising effects of population growth and urbanization which were exacerbated by sudden onset environmental events (storms) and slow-onset environmental processes (sea level rise).
  • Internally displaced people cannot meet the requirements of the Refugee Convention: AF submitted that he was an internally displaced person, and that this grounded a right to claim refugee status in New Zealand. The tribunal found that the Guiding Principles on Internal Displacement referred to by AF in his argument were a soft-law instrument not relevant to AF’s situation, as he was by definition no longer internally displaced.
  • Persecution within the legal definition of ‘refugee’ requires human agency: The tribunal rejected AF’s formulation of ‘refugee’ as one that was broader than the legal concept of ‘refugee’, which it confirmed requires some aspect of human agency in terms of persecution on one of the five protected grounds. At the same time, the tribunal stated that this doesn’t mean environmental degradation could never create pathways into the Refugee Convention jurisdiction.

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Montenegro v. Ashcroft

Date: 16 May 2002

Court: United States Court of Appeals, Third Circuit

Citation: 68 Fed. Appx. 290

Short summary  

A Guatemalan man petitioned for asylum in the United States after suffering persecution attributed to his labour union activity. An immigration judge found his testimony credible and granted the man and his family asylum, a decision ultimately upheld by a federal appeals court.

Summary by: Elisa D’Amico

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision is a binding part of the asylum case law developed in the Third Circuit (Delaware, New Jersey, Pennsylvania). Courts outside of the Third Circuit – including immigration and other federal courts – may find the case’s reasoning persuasive when evaluating similar asylum claims.

Key facts 

Werner Montenegro, born in Guatemala on in 1951 and began working as an agricultural internal auditor for a semi-public wheat growers association in 1982. During this period, Montenegro and others organized a labor union, which faced opposition from management led by Carlos Pac. He claimed to have faced assaults and threats in Guatemala due to his involvement in labor union activities, driven by economic scarcity in his sector.

Previous instances  

Immigration Judge Alberto Riefkohl found Montenegro’s testimony credible and granted him, along with his wife and son, asylum, recognizing their need for protection from “a group that the government is unwilling or unable to control.” However, the Board of Immigration Appeals (BIA) overturned the Judge’s decision, contending that the harm the family suffered did not meet the threshold for persecution.

Summary of holding 

On Montenegro’s appeal of the BIA decision, a panel of judges on the Third Circuit conducted a thorough examination of Montenegro’s testimony and supporting evidence. Based on evidence of past persecution linked to Montenegro’s labor union involvement, the court concluded that his claim was well-founded and merited protection under asylum laws. The case was remanded back to the Immigration Judge, directing him to grant asylum to Montenegro and his family.

The Third Circuit found that the BIA’s decision lacked proper support from the record, and its characterization of the evidence as “vague” was unjustified. For example, the court highlighted the attack on Mrs. Montenegro, Werner’s wife, which involved threats and physical violence in the presence of their young daughter. The court found this incident to be especially concerning and constituting persecution under the law.

Furthermore, the court explained that once an applicant demonstrates past persecution, as Werner Montenegro did, there is a presumption of a well-founded fear of persecution. The BIA failed to rebut this presumption with evidence showing a fundamental change in circumstances or the possibility of avoiding persecution through relocation. Thus, Montenegro’s eligibility for asylum was firmly established.

Therefore, the court vacated the BIA’s order and remanded the case for the Immigration Judge to grant the application for asylum. The court’s decision ensured that the Montenegro family received the protection they sought, recognizing the persecution they endured in their home country related to Montenegro’s sectoral efforts.

Potential takeaways for future climate migration litigation 

  • Montenegro v. Ashcroft may set precedent for asylum claims based on climate-induced poverty and violence. It recognizes the link between economic migration and persecution, allowing individuals to be granted asylum based on sector- or work-related persecution. This case highlights the significance of considering economic aspects in asylum cases, especially in regions facing resource scarcity and escalating tensions attributable to climate change.
  • As climate change worsens, placing increased pressure on the agricultural sector, this case may gain greater significance for individuals seeking asylum based on persecution associated with their sectoral involvement. By recognizing the impending stress on agricultural sector workers, the case sets a vital standard for courts to consider when evaluating the challenges faced by those displaced within this sector. For example, agricultural workers may confront heightened violence and persecution as a result of escalating resource competition driven by climate change. Challenges also extend to women engaged in informal agricultural work, who find themselves uniquely susceptible to exploitation and harassment amid climate-related internal displacement. Moreover, as climate change renders certain work and livelihoods unmaintainable, climate-afflicted migrants often find themselves moving as economic migrants, seeking alternative opportunities due to the adverse effects of climate change on their traditional occupations.
  • Advocates should also take note of how small-scale and Indigenous farmers face heightened persecution in the context of climate change, leveraging this and similar cases to advocate for more comprehensive asylum frameworks which recognize the nuanced ways environmental degradation, economic precarity, and pre-existing social vulnerabilities contribute to persecution.
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Hagi-Mohamed v Minister for Immigration & Multicultural Affairs [2001] FCA 1156

Date of judgement: 23 August 2001

 Court: Federal Court of Australia

Citation(s): [2001] FCA 1156

Short summary 

The Federal Court of Australia confirmed that internal relocation must be considered separately from the question of whether a well-founded fear of persecution exists in evaluating claims for protection under the 1951 Refugee Convention.

Summary by: Joseph Lavelle Wilson            

Link to original judgement 

Click here to open the case in PDF format

Weight of decision

This decision of the Federal Court bears moderate weight in the Commonwealth of Australia. 

Key facts

Ahmed Dahir Hagi-Mohamed, a citizen of Somalia, arrived in Australia on 15 September 1995. He filed an application for a protection visa under s. 36 of the Australian Migration Act 1958 (Cth) in November 1995, claiming that the Australian government had an obligation to protect him under the Convention Relating to the Status of Refugees 1951 (the Convention). The basis of his application was that he had a well-founded fear of persecution in his home country of Somalia, due to his membership of several social groups. 

Hagi-Mohamed claimed that he was a member of the particular social group (that of homosexual men), as well as a member of two clans – the Geledi clan and the Hawadle clan.

Previous instances

The Minister for Immigration & Multicultural Affairs and the Refugee Review Tribunal (RRT) rejected the application for protection. The RRT accepted that each group identified by Hagi-Mohamed was in fact a particular social group, and that he belonged to each one. The RRT found that the motivating reason for the persecution of Geledi clan members by Somalian militias was to take resources from the Geledi clan, specifically arable land and crops, rather than for the reason that they were members of the Geledi clan. The RRT also found that Hagi-Mohamed’s association with his mother’s clan, the Hawadle, did not put him at risk of persecution because there was evidence that other parts of Somalia were controlled by the Hawadle and he could be safe there. With respect to Hagi-Mohamed’s claim based on his homosexuality, the RRT found that although he did belong to the cognisable social group, that group did not face danger rising to the level of persecution under the Convention.

Hagi-Mohamed appealed to the Federal Court of Australia. Justice Stone issued a decision in favour of the government, which was subsequently appealed by Hagi-Mohamed and heard by Justices Wilcox, Weinberg, and Hely in the Federal Court of Australia. 

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