A Canadian perspective on the subjective component of the bipartite test for "persecution": Time for re-evaluation

Abstract

Canadian decision makers refer so regularly to the bipartite nature of the test for persecution in refugee claims that one rarely gives the matter a second thought. After all, the Supreme Court of Canada in Ward clearly affirmed that a refugee claimant must subjectively fear persecution, and this fear must be well-founded in an objective sense. In this article, the authors focus on the meaning and validity of the subjective aspect of the bipartite test. It is especially appropriate to do so at this time, given the introduction of the term "person in need of protection" in section 97 of the Immigration and Refugee Protection Act, and recent Federal Court decisions holding that the subjective fear is not a requirement in section 97 cases. Looking at the issue of subjective fear from historical, psychological, and legal perspectives, the authors argue: (a) that the drafters of the UN Convention never intended claimants to be "subjectively afraid" in order to qualify for protection; (b) determining an asylum seeker's state of mind presents a minefield of potential problems for decision makers; and (c) given the new IRPA provisions dealing with persons in need of protection, the question is not whether there is a bipartite test for determining well-founded fear, but whether, indeed, there ought to be such a test.