Agent of persecution or harm in refugee claims in Canada

Wangmo is a Bhutanese citizen. She and her parents were forced out of Bhutan to Nepal. However, Nepal did not offer them protection. Wangmo recently moved to Canada. She filed a refugee claim upon entry and is now awaiting her hearing. Wangmo is aware of the legal nature of refugee claims. However, she is confused about the concept of the agent of persecution or harm in refugee claims in Canada.

What is persecution?

The Immigration Act falls short of defining the term ‘persecution’. However, we can consider the following as the main criteria for persecution (practitioners see Chapter 3 of IRB legal resources).

• Serious harm: If an agent of persecution takes away your fundamental rights, you could be persecuted. Examples of serious harm include torture, unjust imprisonment, and the prevention of practicing religion, etc.
• Repetition and persistence: Most cases of persecution involve systematic, repetitive behaviour. However, there are exceptions, such as female genital mutilation and killing the friends or family of a person. Such incidents may occur once, but we can consider them persecution given their severity.
• Nexus: Not every suffering and severe harm is persecution. Nexus means that we can relate the issue to one of the Convention grounds: race, religion, nationality, membership in a particular social group and political opinion.

Sometimes, we can consider cumulative discrimination or harassment as persecution. However, making such recognition is not easy. Consider talking to a professional to see if you fall under this group. Remember, prosecution refers to formally charging and convicting criminal offences and differs from persecution.

Who is the agent of persecution or harm?

Generally speaking, the agent of persecution is a person or entity that causes significant human rights violations. The agent of harm could be any of the following:

• Higher authorities of the state
• Subordinate state authorities
• Persons not attached to the government

Sometimes even the agent of persecution could be minors (e.g., bullies at a school). However, when the agent of harm is not the state, you must see if the state can and is willing to offer protection. Also, if a person has multiple nationalities, we must consider the possibility of receiving protection from another state.

Be clear about the agent of persecution.

When filing a refugee claim in Canada, you must introduce the agent of persecution to the Refugee Protection Division. The type of agent could affect your claim in different ways, for example:

• Are there Internal Flight Alternatives (IFA)? When the agent of persecution is the government, you can rarely move to another part of the country and save yourself. However, if the agent is an individual or a group, you must present evidence that IFA is not an option.
• Can you ask for protection? When the agent of harm is not the government, you could seek help from the government. If this is not an option, you must present evidence.
• Will the problem resolve itself soon? You may be in danger, but depending on the agent of harm, you might see them fade away quickly. A long-lasting agent of persecution could make a claim more plausible.

Let us help!

If you are fleeing an agent of persecution or need to file a refugee claim, fill out our special form. I only offer services to those who are already in Canada. Please book a consultation session.

Take the Refugee Appeal Assessment

If you are facing a failed refugee claim, fill out the following form. However, for brand-new refugee claims, fill out our Refugee Claim Self-Assessment tool.

Take the Refugee Claim Self-Assessment

Please answer the questions below honestly. The form provides an immediate estimate of your claim’s strength based on the information you provide.

Disclaimer: This assessment is generated by an automated algorithm and does not constitute official legal advice.

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