A-256-90
Stephan Valentin (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
A-266-90
Michal Modory (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
A-267-90
Ivana Vanikova (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
A-277-90
Dana Valentinova (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
A-301-90
Ladislav Skorvanek (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: VALENTIN Y. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (CA.)
Court of Appeal, Pratte, Marceau and Desjardins
JJ.A.—Montréal, May 29; Ottawa, June 21, 1991.
Immigration — Refugee status — Appeals from Immigra
tion and Refugee Board's decisions denying refugee status
Whether fact claimant subject to criminal sanctions for leaving
country of origin without authorization or remaining abroad
longer than allowed by exit visa important consideration in
determining refugee claim — Common problem not previously
considered by Court — Claimants fearing severe punishment
under Czech Criminal Code, s. 109 ifforced to return home —
Granting refugee status to anyone facing criminal sanctions
illogical and without rational basis — Neither international
Convention nor Act protecting people not persecuted to date
and themselves creating cause to fear persecution by violating
criminal law of general application — Czech Criminal Code
having determining effect on granting of refugee status only in
appropriate context — No possible connection between claim
ants' fear of criminal sanction and difficulties experienced in
past — Board justified in concluding fear of legal sanctions
not constituting well-founded fear of persecution.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Czech Criminal Code, s. 109.
Immigration Act, R.S.C., 1985, c. 1-2, ss. 2(1), 82.3(1)
(as enacted idem (4th Supp.), c. 28, s. 19).
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Rajudeen v. Minister of Employment and Immigration
(1984), 55 N.R. 129 (F.C.A.).
AUTHORS CITED
Goodwin-Gill, Guy S., The Refugee in International
Law, Oxford: Clarendon Press, 1983.
Grahl-Madsen, Atle, The Status of Refugees in Interna
tional Law, Leyden: A.W. Sijthoff, 1966.
Hathaway, James C., The Law of Refugee Status,
Toronto: Butterworths, 1991.
Office of the United Nations High Commissioner for
Refugees. Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Conven
tion and the 1967 Protocol relating to the Status of
Refugees, Geneva, September, 1979.
COUNSEL:
Jean-François Bertrand for appellants.
Louise Marie Courtemanche and Joanne
Granger for respondent.
SOLICITORS:
Jodoin, Bertrand, Lecouffe, Montréal, for
appellants.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.A.: These five appeals under sub
section 82.3(1) of the Immigration Act [R.S.C.,
1985, c. I-2 (as enacted idem (4th Supp.), c. 28, s.
19)], from five decisions of the Immigration and
Refugee Board, were joined for hearing at the
request of counsel for the appellants and with the
consent of counsel for the respondent. The cases
involve analagous facts and raise essentially the
same problem, a well-known problem which, we
were told, arises directly in several other cases
which are awaiting hearing, but which this Court,
for some reason, has not yet had the opportunity to
consider. Generally stated, the problem is the
importance, in determining whether to grant
refugee status, of the fact that the claimant may
face criminal sanctions in his or her country for
leaving the territory without authorization or for
remaining abroad longer than his or her exit visa
allowed.
As I noted above, the five appellants are all in
about the same situation (in fact, they are two
couples living as husband and wife, and a travel
ling companion). They are Czechoslovak citizens
who, while on the way to Cuba on an authorized
trip, left their plane when it stopped in Canada
and made a claim with the authorities for political
refuge. In support of their claim to refugee status
before the Immigration and Refugee Board, the
appellants attempted to describe the trouble they
had experienced in their country, at school, at
work and in the army, primarily because they were
of the Catholic religion and also, for at least one of
them, because he did not want to belong formally
to the Communist Party, as it had been suggested
he do. Their counsel, on their behalf, then submit
ted that apart from the deplorable treatment to
which they had been subjected, and which might
continue, there was also today their fear of severe
punishment if they had to return to their country,
under section 109 of the Czech Criminal Code.
The substance of this section was attested to by a
letter from the President of the Czechoslovak
Association of Canada dated February 23, 1989,
stating:
1, the undersigned, Dr Victor G Zicha, testify that Paragraph
No. 109 of the Official Criminal Code of the Czechoslovak
Socialist Republic (Sbirka Zakonu Ceskoslovenske Socialis-
ticke Republiky), published December 8, 1961, states in
Article l:
(i) Whoever, without official approval, shall leave the territory
of the republic, will be punished by removal of personal
freedom for six months and up to five years or corrective
measure.
(ii) Likewise, will be punished any Czechoslovak citizen, who
without official approval, stays abroad.
(iii) Whoever helps (aids) any person or group of persons to
leave the territory of the Czechoslovak Socialist Republic,
without official approval, will be punished by removing
his/her personal freedom for three up to ten years.
The Board members were not convinced. They
found that the claims were not valid. In their
opinion, in none of the five cases were the past
troubles described by the claimants sufficiently
serious to give them a reasonable basis for fear of
persecution on account of their religion or political
opinions, and the existence of section 109 of the
Czech Criminal Code did not change this finding.
Their reasoning is repeated in each of the five
decisions, with the necessary adaptations. The fol
lowing few passages from the decision chosen by
counsel for demonstration purposes illustrate the
basic points (A-301-90) (page 8 of the decision):
[TRANSLATION] Because of the foregoing, we are of the
opinion that the claimant has not discharged the burden of
proof and that he has not established that at the time he arrived
in Canada he had a reasonable fear of persecution which would
justify his request to the Government of Canada for protection.
Counsel for the claimant filed as Exhibit 3 two judgments,
one of the District Court of Law in Cheb (Czechoslovakia),
dated December 13, 1985, and the other of the City Court of
Law in Brno (Czechoslovakia), dated September 1, 1989, based
on the provisions of section 109, paragraph 1, of the Czech-
oslovak Criminal Code, sentencing the accused to 20 and 30
months imprisonment, respectively, for not returning to the
country within the time prescribed by the exit visas that had
been issued to them.
We know nothing about the backgrounds of these two people
or the reasons why they fled their country, or the reasons
underlying these judgments. It is therefore not possible for us to
draw any connection between these cases and the claimant's
case.
Given that in the case before us we have found in the
evidence presented to us no valid reason for Mr Skorvanek to
fear persecution by reason of his religion or political opinion, it
would not be reasonable to grant refugee status to the claimant
for the one and only reason that he violated a law in his country
by fleeing, since the evidence has further not disclosed the
existence of other factors which might make him a Convention
refugee.
For these reasons, the Board finds that the claimant is not a
"Convention refugee" under subsection 2(1) of the Immigra
tion Act.
Counsel for the appellants tried first to attack
the decisions of the Board in terms of its assess
ment of the evidence and its interpretation of the
facts, independently of the conclusions to be drawn
from the existence of section 109 of the Czech
Criminal Code. He was unsuccessful. The Court's
reluctance to agree that the Board might have
taken too narrow a view of the concept of persecu
tion involved in the refugee definition, or might
have wrongly minimized the extent of the trouble
and difficulties to which the claimants asserted
they had been subjected over the years because of
their family and their religion or their refusal to
belong formally to Communist organizations, was
very soon expressed.
Counsel then challenged the Board's rejection of
the argument based on the existence of section 109
of the Czech Criminal Code and the fear of
imprisonment that this section aroused in the
claimants. Citing passages from the publications
by Guy S. Goodwin-Gill, The Refugee in Interna
tional Law, and Atle Grahl-Madsen, The Status
of Refugees in International Law, counsel recalled
that there was one school of thought, and even
some judgments from the Federal Republic of
Germany, which were prepared to admit that the
mere fear of punishment under a provision such as
section 109 of the Czech Criminal Code could
amount to a well-founded fear of persecution and
provide valid grounds for a refugee claim. We
know that some supporters of this theory argue a
sort of presumption that the authorities of the
national State will automatically and inevitably
interpret the decision of their fellow-citizen to
leave the country without authorization, or to
remain abroad beyond the time provided, as evi
dence of political opposition. Counsel acknowl
edged that this is an extreme position, which the
vast majority of commentators rejected, and did
not urge its acceptance per se. However, he sug
gested that when the fear of criminal sanction did
not exist in isolation, but arose in a context of
difficulties such as his clients had experienced,
there were grounds for a prima facie finding of a
well-founded fear of persecution.
When asked for comments on the argument of
counsel for the appellant on the sole issue of the
existence of section 109 of the Czech Criminal
Code, counsel for the respondent essentially sub
mitted: first, the text of section 109 was somewhat
equivocal and the possible punishment it provided
extended from simple corrective measures to
imprisonment for five years; second, there was
nothing to justify assuming that motives of politi
cal opposition would be attributed to the appel
lants' action when their conduct was judged under
section 109, and there was nothing in the case to
indicate what factors would determine the punish
ment which might be imposed on them; third,
section 109 is a law of general application which
exhibits no discriminatory aspect in itself, and in
its implementation, at least in so far as the docu
mentary evidence in the record was concerned;
fourth, according to the documentary evidence in
the record, it would seem that a person found
guilty of the offence defined in paragraph 2 of the
section, staying abroad longer than authorized,
may at any time, during a five-year period, regula
rize his or her status by obtaining an extension of
his or her foreign residence permit.
It does not seem to me that the solution to the
problem raised requires that we consider all the
arguments put forward by counsel for the parties,
the most important of which I have reviewed. The
peculiarities of the Czech legislation, particularly,
do not seem to me to be really relevant. The
problem appears to me to be the same for all cases
where the legislation of a State provides severe
punishment for those of its nationals who leave the
territory in an irregular manner or remain abroad
beyond the time authorized.
I will say, first, that while in humanitarian
terms I am very much inclined to sympathize with
the idea of granting refugee status to everyone who
faces criminal sanctions such as those imposed by
section 109 of the Czech Criminal Code, in practi
cal and legal terms the idea seems to me to be
illogical and without any rational basis. 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. I would add, with due respect for the
very widely held contrary opinion, that the idea
does not appear to me even to be supported by the
fact that the transgression was motivated by some
dissatisfaction of a political nature (on this point,
see, inter alia, Goodwin-Gill, op. cit., pages 32 et
seq.; James C. Hathaway, The Law of Refugee
Status, pages 40 et seq.), because it seems to me,
first, that an isolated sentence can only in very
exceptional cases satisfy the element of repetition
and relentlessness found at the heart of persecu
tion (cf. Rajudeen v. Minister of Employment and
Immigration (1984), 55 N.R. 129 (F.C.A.)), but
particularly because the direct relationship that is
required between the sentence incurred and
imposed and the offender's political opinion does
not exist.
In my opinion, a provision such as section 109 of
the Czech Criminal Code can have a determining
effect on the granting of refugee status only in an
appropriate context. This will occur in cases where
the provision, either in itself or in the manner in
which it is applied, is likely to add to the series of
discriminatory measures to which a claimant has
been subjected for a reason provided in the Con
vention, so that persecution may be found in the
general way in which he is treated by his country.'
I noted earlier that counsel for the appellants had
in effect attempted to connect his clients' fear of
criminal sanction to the difficulties they had
experienced in the past. The problem is that such a
connection is not possible here, since there is no
reason to believe that the claimants' membership
in the Catholic religion, a major cause of the
difficulties they had experienced, or even their
disagreement with the government, if we assume
that this had some unfortunate consequence for
them in the past, could have any influence at all on
the manner in which section 109 would be applied
to them.
' This is an application of the principle of the cumulative
effect referred to in paragraphs 54 and 55 of the Handbook on
Procedures and Criteria for Determining Refugee Status under
the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees, published by the Office of the United
Nations High Commissioner for Refugees (Geneva, September
1979).
In my opinion, the Board was correct in finding
that the claimants' fear of being subjected to
criminal punishment for having stayed abroad
beyond the time provided in their exit visas cannot
amount to a well-founded fear of persecution
which would make them Convention refugees.
I would therefore dismiss the five appeals.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.