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CHAPTER 6
6. STATE PROTECTION
6.1. INTRODUCTION - GENERAL PRINCIPLES
The issue of state protection was extensively
canvassed by the Supreme Court of Canada in Ward.1
The context for the discussion of this topic is the requirement
in the definition of Convention refugee that the claimant be unable, or
by reason of his or her fear of persecution, unwilling to avail him or
herself of the protection of the country of nationality (citizenship).As
indicated below, the state's ability to protect the claimant is a crucial
element in determining whether the fear of persecution is well founded,
and as such, is not an independent element of the definition. The issue
of state protection goes to the objective portion of the test of fear
of persecution.2
6.1.1. Surrogate Protection
The responsibility to provide international
protection only becomes engaged when national or state protection is unavailable
to the claimant (international protection as a surrogate).3
6.1.2. Multiple Nationalities
In the case of multiple nationalities
(citizenship), the claimant is normally expected to make inquiries or
applications to ascertain whether or not he or she might avail him or
herself of the protection of all the countries of nationality. The claimant
need not literally approach the other states for protection unless there
is a reasonable expectation that protection will be forthcoming.4
6.1.3. Timing of Analysis
The state's ability to protect, whether
one is speaking of the claimant being "unable" or "unwilling", must be
considered at the stage of the analysis when one is examining whether
the claimant's fear is well founded.
The test is in part objective; if a state is able to
protect the claimant, then his or her fear is not, objectively speaking,
well-founded
It is clear that the lynch-pin of the analysis is the state's
inability to protect: it is a crucial element in determining whether the
claimant's fear is well-founded, and thereby the objective reasonableness
of his or her unwillingness to seek the protection of his or her state
of nationality.5
6.1.4. Unable or Unwilling - A Blurred Distinction
- No Requirement for State Complicity
The distinction between "unable" (physically
or literally unable) and "unwilling" (not wanting) has become blurred.6
Whether the claimant is "unwilling" or "unable" to avail him-
or herself of the protection of a country of nationality, state complicity
in the persecution is irrelevant. The distinction between these two branches
of the "Convention refugee" definition resides in the party's precluding
resort to state protection: in the case of "inability", protection is
denied to the claimant, whereas when the claimant is "unwilling", he or
she opts not to approach the state by reasons of his or her fear on an
enumerated basis. In either case, the state's involvement, in the persecution
is not a necessary consideration. This factor is relevant, rather in the
determination of whether a fear of persecution exists.7
6.1.5. Presumptions
There are two presumptions at play in
refugee determination:
Presumption 1:
If the fear of persecution is credible (the Court uses the word "legitimate")
and there is an absence of state protection, it is not a great leap "
to presume that persecution will be likely,
and the fear well-founded."8
(emphasis in original)
Having established the existence of a fear and a state's inability
to assuage those fears, it is not assuming too much to say that the fear
is well-founded.Of course, the persecution must be real - the presumption
cannot be built on fictional events - but the well-foundedness
of the fear can be established through the use of such a presumption.
9
(emphasis in original)
Presumption 2: Except
in situations where the state is in a state of complete breakdown, states
must be presumed capable of protecting their citizens. This presumption
can be rebutted by "clear and convincing" evidence of the state's inability
to protect.10
The danger that [presumption one] will operate too broadly is
tempered by a requirement that clear and convincing proof of a state's
inability to protect must be advanced.11
6.1.5.1. Inability to Protect - Nexus
In Badran,12
the Court indicated that the "law does not require that the inability
to protect be connected to a Convention reason."Conversely, one may argue
that even though the source of the persecution is not grounded in a Convention
reason, a State's failure to act (protect), if motivated by a Convention
ground, can establish the nexus to the definition, i.e.,
the failure to protect for a Convention reason can in itself amount to
persecutory treatment.
6.1.6. Burden of Proof
The claimant's burden of presenting
"clear and convincing" proof of the state's inability to protect should
not be an impossible burden.
it would seem to defeat the purpose of international
protection if a claimant would be required to risk his or her life seeking
ineffective protection of a state, merely to demonstrate that ineffectiveness.13
The Trial Division in Peralta14
stated that a claimant is not required to show that he or she has exhausted
all avenues of protection. Rather, the claimant has to show that he or
she has taken all steps reasonable in the circumstances, taking into account
the context of the country of origin in general, the steps taken and the
claimant's interactions with the authorities.
6.1.7. Obligation to Approach the State
A claimant is required to approach his
or her state for protection in situations in which protection might reasonably
be forthcoming.
the claimant will not meet the definition of "Convention
refugee" where it is objectively unreasonable for the claimant not to
have sought the protection of his home authorities: otherwise, the claimant
need not literally approach the state.15
In other words, the claimant must show
that it was reasonable for him or her not to seek state protection. However,
a claimant is not required to risk his or her life seeking ineffective
protection of a state, merely to demonstrate that ineffectiveness.16
In D'Mello,17
the Court set aside the decision of the CRDD
because the panel's analysis was inadequate with respect to the principle
in Ward that a claimant should not be required to risk her life
seeking ineffective state protection merely to prove the ineffectiveness.
In this case,
the [claimant's] fear did not rest on the lack of legislative
and procedural framework in India to protect women abused by their husbands
or agents of their husbands, but rather on the lack of police support
to such women and the difficulty, given the lack of such support, in effectively
taking advantage and having recourse to the existing legislative and procedural
framework of state protection in India. (At paragraph 13).
6.1.8. Rebutting the Presumption of Protection
Absent an admission by the state that
it is unable to protect (as was the case in Ward), a claimant
can establish, with "'clear and convincing evidence",18
that state protection would not be reasonably forthcoming (thus rebutting
the presumption) where:
- there is a complete breakdown of state apparatus, such as that recognized
in Lebanon in Zalzali;19
- there is evidence "
similarly situated individuals [were] let
down by the state protection arrangements
;"20
- there is evidence "
of past personal incidents in which state
protection did not materialize."21
The Court refers to the Federal Court
of Appeal decision in Satiacum22
and quotes with approval the following statement:
In the absence of exceptional circumstances established by the
claimant, it seems to me that in a Convention refugee hearing, as in an
extradition hearing, Canadian tribunals have to assume a fair and independent
judicial process in the foreign country. In the case of a non-democratic
State, contrary evidence might be readily forthcoming, but in relation
to a democracy like the United States contrary evidence might have to
go to the extent of substantially impeaching, for example, the jury selection
process in the relevant part of the country, or the independence or fair-mindedness
of the judiciary itself.23
In Kadenko,24
which is discussed later in section 6.1.11, the Court of Appeal noted
that the burden of proof to establish absence of state protection is "directly
proportional to the level of democracy in the state in question
"
6.1.9. More Than One Authority in the Country
The Court of Appeal in Zalzali25
recognized that there may be several established authorities in a country
which are each able to provide protection in the part of the country controlled
by them.
The "country", the "national government", the "legitimate government",
the "nominal government" will probably vary depending on the circumstances
and the evidence and it would be presumptuous to attempt to give a general
definition.I will simply note here that I do not rule out the possibility
that there may be several established authorities in the same country
which are each able to provide protection in the part of the territory
controlled by them, protection which may be adequate though not necessarily
perfect.26
In Chebli-Haj-Hassam,27
the Court of Appeal answered a certified question on this matter as follows:
In the circumstances where there is a legitimate government
supported by the forces of another government and there is no difference
in interest between the two governments in relation to a refugee claimant,
the protection given to the claimant is adequate to establish an internal
refuge.
In Choker,28
the Court appears to question the reasonableness of the CRDD
conclusion that a Lebanese claimant could and should seek the protection
of an invading army (the Court was considering whether the tribunal had
applied the law on IFA
correctly.)
6.1.10. Adequacy of Protection - Standard
One aspect of protection which was not
discussed by the Supreme Court of Canada in Ward is the standard
of protection that a country needs to offer its citizens.One standard
suggested by the Federal Court of Appeal is "
adequate though not
necessarily perfect".29
This standard has been followed and applied in a large number of cases.
In Villafranca,30
the Court of Appeal, considering the claim of a Philippine policeman who
feared a terrorist guerrilla group, again suggested that protection need
not be perfect:
No government that makes any claim to democratic values or
protection of human rights can guarantee the protection of all of its
citizens at all times. Thus it is not enough for a claimant merely to
show that his government has not always been effective at protecting persons
in his particular situation.Terrorism in the name of one warped ideology
or another is a scourge afflicting many societies today; its victims,
however much they may merit our sympathy, do not become Convention refugees
simply because their governments have been unable to suppress the evil
.
where a state is in effective control of its territory, has military,
police and civil authority in place, and makes serious efforts to protect
its citizens from terrorist activities, the mere fact that it is not always
successful at doing so will not be enough to justify a claim that the
victims of terrorism are unable to avail themselves of such protection.31
There are a few cases from the Trial
Division which take a broad view of protection. For example, in Bobrik,32
Madam Justice Tremblay-Lamer, in considering the claims of a Jewish
couple from Russia stated that:
even when the state is willing to protect its citizens,
a claimant will meet the criteria for refugee status if the protection
being offered is ineffective. A state must actually provide protection,
and not merely indicate a willingness to help.Where the evidence reveals
that a claimant has experienced many incidents of harassment and/or discrimination
without being effectively defended by the state, the presumption operates
and it can be concluded that the state may be willing but unable to protect
the claimant.
Mr. Justice
Gibson, in Smirnov,33
stated that in his view, "
[Bobrik] sets too high a standard
for state protection
". He further indicated that:
Random assaults such as those suffered by the [claimants], where
the assailants are unknown to the victim and there are no independent
witnesses are also difficult to effectively investigate and protect against.
In all such circumstances, even the most effective, well-resourced and
highly motivated police forces will have difficulty providing effective
protection. This Court should not impose on other states a standard of
"effective" protection that police forces in our own country, regrettably,
sometimes only aspire to.
In James,34
the Court noted that "a finding of adequate protection cannot flow
from police assistance to leave the country that is unable to provide
adequate protection. "
In Zhuravlvev,35
Mr. Justice Pelletier reviewed
the authorities and drew the following conclusions:
[31]
when the agent of persecution is not the state,
the lack of state protection has to be assessed as a matter of state capacity
to provide protection rather than from the perspective of whether the
local apparatus provided protection in a given circumstance.Local failures
to provide effective policing do not amount to lack of state protection.However,
where the evidence, including the documentary evidence situates the individual
claimant's experience as part of a broader pattern of state inability
or refusal to extend protection, then the absence of state protection
is made out. The question of refusal to provide protection should be addressed
on the same basis as the inability to provide protection. A local refusal
to provide protection is not a state refusal in the absence of evidence
of a broader state policy to not extend state protection to the target
group
[the] refusal may not be overt; the state organs may justify
their failure to act by reference to various factors which, in their view,
would make any state action ineffective. It is for the CRDD
to assess the bona fides of these assertions in the light of
all the evidence.
[32]
[As regards] the issue of internal flight alternative
in relation to state inability or refusal to provide protection,
if state policy restricts a claimant's access to the whole of the state's
territory, then the failure to provide local protection can be seen to
be as state failure to provide protection and not mere local failure
6.1.11. Source of Protection
As to whether the claimant needs to
seek protection from sources other than the state, there is some inconsistency
in the case law dealing with the issue. In Thakur, the Trial
Division seems to say that the fact that civil rights groups are able
to conduct investigations of alleged abuses is irrelevant to the question
of protection.36
A similar point was made in Risak,37
where the Court also considered the claimant's obligation to pursue further
legal remedies after initial complaints to the state's authorities fail:
the question is whether or not it was objectively reasonable
to expect the [claimant] to have further sought the protection from the
army and the police in Israel after having been so brutally rebuffed by
the very authorities from whom citizens expect protection. There is nothing
in our jurisprudence to the effect that in such situations the [claimant]
has the further burden to seek assistance from human rights organizations
or, ultimately, to launch an action in court against the government.
A related question is whether one can
say that the state has failed to provide protection where the protection
is denied by certain elements of the state, for example, individual police
officers.38
In Kadenko,39
the Court of Appeal dealt with the following certified question:
Where there has not been a complete breakdown of the government
apparatus and where a State has political and judicial institutions capable
of protecting its citizens, does the refusal by certain police officers
to take action suffice to establish that that State in question is unable
or unwilling to protect its nationals?
The court answered the question in the
negative:
Once it is assumed that the state (Israel in this case) has
political and judicial institutions capable of protecting its citizens,
it is clear that the refusal of certain police officers to take action
cannot in itself make the state incapable of doing so.
When the state in question is a democratic state
the
claimant must do more than simply show that he or she went to see some
members of the police force and that his or her efforts were unsuccessful.
The burden of proof that rests on the claimant is, in a way, directly
proportional to the level of democracy in the state in question: the more
democratic the state's institutions, the more the claimant must have done
to exhaust all the courses of action open to him or her. (at 2-3)
The Trial Division has, in a number
of decisions, accepted that the availability of protection from non-state
sources may, nevertheless, be relevant to establishing an objective basis
for the claim.40
In Szucs,41
the Court dismissed the judicial review application of the decision of
the CRDD
with respect to the claim of a Romani claimant from Hungary, and noted
that:
[27]
In determining the availability of state protection,
the Board was also entitled to examine all reasonable steps the Applicant
had taken in the circumstances to seek protection of his state of origin.
[28]
The Board found that for more serious and persistent
forms of discrimination like eviction from housing, persistent unemployment
due to discrimination or other serious harm, there was a network of government
and government sponsored organizations throughout Hungary which assist
without charge those so threatened.
[29] The evidence established that the applicant had never tried
to seek help from either the Ombudsman, NGO's or through minority self-government.I
find that the Board, in requiring the Applicant to exhaust these avenues
of protection in addition to police protection, was asking the Applicant
to take reasonable steps to ensure his protection.
6.2. STATELESS CLAIMANTS
As to whether stateless claimants need
to avail themselves of state protection, the UNHCR
Handbook, in paragraph 101 states that "
[i]n the case
of a stateless refugee, the question of 'availment of protection' of the
country of his former habitual residence does not, of course, arise
"
In El Khatib,42 Mr. Justice
McKeown agreed with this approach and stated:
the discussion and conclusions reached in Ward
apply only to citizens of a state, and not to stateless people. In my
view the distinction between paragraphs 2(1)(a)(i) and 2(1)(a)(ii) of
the Act is that the stateless person is not expected to avail
himself of state protection when there is no duty on the state to provide
such protection.43
However, other Trial Division decisions
have taken into account state protection that might be available to the
claimant in his country of former habitual residence.44
For example, in Nizar45
the Court was of the view that, even though states owe no duty of protection
to non-nationals, "it is relevant for a stateless person, who has a country
of former habitual residence, to demonstrate that defacto [sic]
protection within that state, as a result of being resident there is not
likely to exist."The Court reasoned that this was relevant to the well-foundedness
of the claimant's fear.
The Federal Court of Appeal in Thabet,46
in the context of discussing whether a stateless claimant who has more
than one country of former habitual residence must establish the claim
with respect to one, some or all of the countries47, had this to say about the issue of state protection:
The definition takes into account the inherent difference
between those persons who are nationals of a state, and therefore are
owed protection, and those persons who are stateless and without recourse
to state protection.Because of this distinction one cannot treat the two
groups identically, even though one should seek to be as consistent as
possible. (At 33).
If it is likely that a person would be able to return
to a country of former habitual residence where he or she would be safe
from persecution, that person is not a refugee. This means that the claimant
would bear the burden
of showing on the balance of probabilities
that he or she is unable or unwilling to return to any country of former
habitual residence. (At 39).
6.3. APPLICATION OF THE LAW TO SPECIFIC SITUATIONS48
In analyzing the situation in Peru (on
the basis of the evidence filed in the particular case), the Court of
Appeal stated:
Isolated cases of persons having been victimized may not reverse
the presumption. A state of profound unrest with ineffective protection
for the claimant may, however, have reversed it.49
The protection which is given to ordinary
citizens may not be adequate for persons specifically targeted.Although
the state is capable of protecting ordinary citizens, it may be incapable
of protecting persons specifically targeted, and the latter may therefore
have good grounds for fearing persecution.50
The claimant may show that he or she
is physically prevented from seeking state protection or that the state
is prevented from giving the protection, where, for example, the state
refuses to give protection,51 there is no government to turn to,52
or there is ineffective state protection.53
Where the agent of persecution acts
on behalf of the state, the appropriate inquiry is under the "unwilling"
branch of the definition.
While it may not be necessary to prove state complicity in certain
situations, in this instance, the tribunal admitted that the persecuting
agents were thugs of the ruling UNP. As such, the determination to be made
is squarely within the "unwilling" branch of
the definition.Since
the persecuting agent is the state or its actors, the appropriate inquiry
is whether the [claimants'] unwillingness to seek the protection of Sri
Lanka is based on a well-founded fear of persecution. The Board made a
fundamental error when it stated that "it is also not satisfied that the
state is either unable or unwilling to offer protection should the female
claimant decide to seek such protection." The question is not whether
the state would be willing to protect, but whether the applicant is willing
to seek the protection of the state. It is the well-foundedness of the
[claimant's] perspective regarding the state's actions which is determinative."54
Where the claimant fears the army and
the evidence establishes that the army is in control of the entire territory,
particularly if the country is small, the claimant may be unable to seek
the protection of the state.55
Where there is widespread violence and
the state fails to take effective steps to curb it despite repeated promises
to do so, it is unreasonable to conclude that a claimant could rely on
that state for protection.56
In cases of domestic or sexual violence,
where there is evidence that the government is taking steps to protect
women, in the absence of evidence to the contrary, it must be presumed
that these steps will be effective.57
Whether a request for protection is useless after a rape has occurred
is not the issue, but rather whether the state is willing, able and disposed
to protect a claimant in the face of such acts if she were to return.58
In deciding whether a claimant can count
on the protection of the state, one must consider not only the state's
ability to protect, but also its willingness.While the Ghanian government
had sometimes shown an intention to make female circumcision illegal,
it was still tolerating the practice.59
On the other hand, in a case where the claimant feared ritual murder in
Ghana, the Court noted that that practice was officially condemned by
the government and that the claimant never sought the protection of the
authorities nor showed that they had failed or refused to protect him.60
- Adjei v. Canada (Minister
of Employment and Immigration), [1989] 2 F.C.
680 (C.A. )
- Ahmed, Ali v. M.C.I.
(F.C.T.D.,
no. IMM-2868-99), Pinard,
May 17, 2000
- Alli, Lukman v. M.C.I.
(F.C.T.D.,
no. IMM-1984-01, O'Keefe,
April 26, 2002; 2002 FCT
479
- Annan v. Canada (Minister
of Citizenship and Immigration), [1995] 3 F.C.
25 (T.D. )
- Aramburo, Juan Carlos v.
M.C.I.
(F.C.T.D.,
no. IMM-6782-93), Cullen,
December 7, 1994
- Badoeva, Manana v. M.C.I.
(F.C.T.D.,
no. IMM-4925-99), Rouleau,
November 29, 2000
- Badran, Housam v. M.C.I.
(F.C.T.D.,
no. IMM-2472-95), McKeown,
March 29, 1996
- Baldizon-Ortegaray, German Jose v.
M.E.I.
(F.C.T.D.,
no. 92-T-1933), May 7,
1993.Reported: Baldizon-Ortegaray v.
Canada (Minister of Employment and Immigration) (1993), 20 Imm.
L.R. (2d) 307 (F.C.T.D.
)
- Balogh, Rudolf v. M.C.I.
(F.C.T.D.,
no. IMM-6193-00), Lemieux,
July 22, 2002; 2002 FCT
809
- Barabhuiyan, Abdullah Al Mamun v.
M.E.I.
(F.C.T.D.,
no. A-998-92), Tremblay-Lamer,
November 30, 1993
- Barkai, Alex v. M.E.I.
(F.C.T.D.,
no. IMM-6249-93), Gibson,
September 27, 1994
- Bobrik, Iouri v. M.C.I.
(F.C.T.D.,
no. IMM-5519-93), Tremblay-Lamer,
September 16, 1994
- Bohorquez, Gabriel Enriquez v.
M.C.I.
(F.C.T.D.,
no. IMM-7078-93), McGillis,
October 6, 1994
- Bukhari, Zubair Hayder v.
M.E.I.
(F.C.T.D.,
no. IMM-6344-93), Richard,
November 18, 1994
- Callejas, Ana Lucretia v.
M.E.I.
(F.C.T.D.,
no. A-48-93), Gibson, February 1,
1994.Reported: Callejas v.
Canada (Minister of Employment and Immigration) (1994), 23 Imm.
L.R. (2d) 253 (F.C.T.D.
)
- Chebli-Haj-Hassam, Atef v.
M.C.I.
(F.C.A.,
no. A-191-95), Marceau, MacGuigan,
Décary, May 28, 1996.Reported: Chebli-Haj-Hassam
v. Canada (Minister of Citizenship
and Immigration) (1996), 36 Imm.
L.R. (2d) 112 (F.C.A.
)
- Cho, Soon Ja v. M.C.I.
(F.C.T.D.,
no. IMM-4029-99), Gibson,
August 9, 2000
- Choker, Ali v. S.G.C. (F.C.T.D.,
no. A-1345-92), Dubé,
July 30, 1993
- Contreras, Carlos Fabian Vassallo v.
M.C.I.
(F.C.T.D.,
no. IMM-2555-94), MacKay,
May 19, 1995.Reported: Contreras v.
Canada (Minister of Citizenship and Immigration) (1996), 36 Imm.
L.R. (2d) 75 (F.C.T.D.
)
- Cuffy, Loferne Pauline v.
M.C.I.
(F.C.T.D.,
no. IMM-3135-95), McKeown,
October 16, 1996
- D'Mello, Carol Shalini v.
M.C.I.
(F.C.T.D.,
no. IMM-1236-97), Gibson,
January 22, 1998
- El Khatib, Naif v. M.C.I.
(F.C.T.D.,
no. IMM-5182-93), McKeown,
September 27, 1994
- El Khatib: M.C.I.
v. El Khatib, Naif (F.C.A.,
no. A-592-94), Strayer, Robertson,
McDonald, June 20, 1996
- Elastal, Mousa Hamed v.
M.C.I.
(F.C.T.D.,
no. IMM-3425-97), Muldoon,
March 10, 1999
- Fainshtain, Galine v. M.C.I.
(F.C.T.D.,
no. IMM-1012-95), Muldoon,
June 17, 1996
- Falberg, Victor v. M.C.I.
(F.C.T.D.,
no. IMM-328-94), Richard,
April 19, 1995
- Farias, Carlos Humbero Gonzales v.
M.C.I.
(F.C.T.D.,
IMM-3305-96), Lutfy, October 3, 1997
- Ferguson, Gloria v. M.C.I.
(F.C.T.D.,
no. IMM-5927-01), Noël,
November 22, 2002: 2002 FCT
1212
- Fernandez, Laura v. M.E.I.
(F.C.T.D.,
no. IMM-4591-93), Wetston,
July 19, 1994
- Freiberg, Valentina v. S.S.C.
(F.C.T.D.,
no. IMM-3419-93), Tremblay-Lamer,
May 27, 1994
- Giatch, Stanislav v. M.E.I.
(F.C.T.D.,
no. IMM-3438-93), Gibson,
March 22, 1994
- Gonzales, Abel Guillermo Mayorga v.
M.E.I.
(F.C.T.D.,
no. IMM-117-93), Noël,
February 25, 1994
- Guirgas, Nabil v. M.C.I.
(F.C.T.D.,
no. IMM-2131-96), Jerome,
August 20, 1997
- Hernandez-Ruiz: M.E.I.
v. Hernandez-Ruiz, Maria
(F.C.A.,
no. A-20-92), Marceau, Létourneau,
Robertson, February 8, 1993
- Horvath, Szuzsanna v. M.C.I.
(F.C.T.D.,
no. IMM-4001-01, Blanchard,
November 22, 2002; 2002 FCT
1206
- Howard-Dejo, Luis Fern v.
M.C.I.
(F.C.T.D.,
no. A-1179-92), Noël,
February 2, 1995
- Ivachtchenko, Artem v. M.C.I.
(F.C.T.D.,
no. IMM-4964-01), Lemieux,
December 12, 2001; 2002 FCT
1291
- James, Cherrie Ann Louanne v.
M.C.I.
(F.C.T.D.,
no. IMM-3352-97), Wetston,
June 1, 1998.Reported: James v.
Canada (Minister of Citizenship and Immigration) (1998), 44 Imm.
L.R. (2d) 16 (F.C.T.D.)
- Johan: M.E.I.
v. Johan, Stephen (F.C.T.D.,
no. T-1389-92), Denault,
February 9, 1993
- Kadenko: M.C.I.
v. Kadenko, Ninal (F.C.A.,
no. A-388-95), Hugessen,
Décary, Chevalier, October 15, 1996.Reported: Canada
(Minister of Citizenship and Immigration) v.
Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.
)
- Karaseva, Tatiana v. M.C.I.
(F.C.T.D.,
no. IMM-4683-96), Teitelbaum,
November 26, 1997
- Kogan, Meri v. M.C.I.
(F.C.T.D.,
no. IMM-7282-93), Noël,
June 5, 1995
- Kraitman, Vadim v. S.S.C.
(F.C.T.D.,
no. IMM-88-94), Teitelbaum,
July 5, 1994.Reported: Kraitman v.
Canada (Secretary of State) (1994), 27 Imm.
L.R. (2d) 283 (F.C.T.D.
)
- Lerer, Iakov v. M.C.I.
(F.C.T.D.,
no. IMM-7438-93), Cullen,
January 5, 1995
- Levitina (Chikhovtseva), Tatiana v.
M.C.I.
(F.C.T.D.,
no. IMM-6591-93), Noël,
January 27, 1995
- Levkovicz, Ilia v. S.S.C.
(F.C.T.D.,
no. IMM-599-94), Nadon, March 13,
1995
- Machado, Hugo Ricardo Gonzalez v.
M.C.I.
(F.C.T.D.,
no. IMM-7155-93), Rothstein,
October 27, 1994
- Madoui, Nidhal Abderrah v.
M.C.I.
(F.C.T.D.
no. IMM-660-96), Denault,
October 25, 1996
- Mallam, Sanni Mohammad v.
M.C.I.
(F.C.T.D.,
no. IMM-2780-96), Pinard,
June 30, 1997
- Manorath, Rahonie v. M.C.I.
(F.C.T.D.,
no. IMM-2369-94), Cullen,
January 26, 1995
- Medina, Blanca Patricia v.
M.C.I.
(F.C.T.D.,
no. IMM-2322-94), Simpson,
October 30, 1995
- Mendivil, Luis Altamirano v.
S.S.C.
(F.C.A.,
no. A-132-93), Marceau, Stone,
Desjardins, February 7, 1994.Reported: Mendivil v.
Canada (Secretary of State) (1994), 23 Imm.
L.R. (2d) 225 (F.C.A.
)
- Mendoza, Elizabeth Aurora Hauayek v.
M.C.I.
(F.C.T.D.,
no. IMM-2997-94), Muldoon,
January 24, 1996
- Milev, Dane v. M.C.I.
(F.C.T.D.,
no. IMM-1125-95), MacKay,
June 28, 1996
- Miranda, Elmer Edgar Valencia v.
M.C.I.
(F.C.T.D.
no. IMM-5882-93), Muldoon,
March 31, 1995
- Molnar, Elek v. M.C.I.
(F.C.T.D.,
no. IMM-285-02, Tremblay-Lamer,
October 16, 2002; 2002 FCT
1081
- Nagy, Laszlo v. M.C.I.
(F.C.T.D.,
no. IMM-1467-01), Simpson,
March 14, 2002; 2002 FCT
281
- Nduwimana, Thierive v. M.C.I.
(F.C.T.D.,
no. IMM-1077-01), Lutfy,
July 23, 2002; 2002 FCT
812
- Nizar v. M.C.I.
(F.C.T.D.,
no. A-1-92), Reed, January 10,
1996
- Oblitas, Jorge v. M.C.I.
(F.C.T.D.,
no. IMM-2489-94), Muldoon,
February 2, 1995
- Olah: M.C.I.
v. Olah, Bernadett (F.C.T.D.,
no. IMM-2763-01), McKeown,
May 24, 2002; 2002 FCT
595
- Pachkov, Stanislav v.
M.C.I.
(F.C.T.D.,
no. IMM-2340-98), Teitelbaum,
January 8, 1999. Reported: Pachkov v.
Canada (Minister of Citizenship and Immigration) (1999), 49 Imm.
L.R. (2d) 55 (F.C.T.D.
)
- Peralta, Gloria Del Carmen v.
M.C.I.
(F.C.T.D.,
no. IMM-5451-01), Heneghan,
September 20, 2002; 2002 FCT
989
- Petit, Juan Daniel Ayllon v.
M.C.I.
(F.C.T.D.,
no. A-1197-92), Rouleau,
January 12, 1996
- Quintero, Wilfredo Cruz v.
M.C.I.
(F.C.T.D.,
no. IMM-3447-96), Campbell,
June 6, 1997
- Rajudeen, Zahirdeen v. M.E.I.
(F.C.A.,
no. A-1779-83), Heald, Hugessen,
Stone (concurring), July 4, 1984.Reported: Rajudeen v.
Canada (Minister of Employment and Immigration) (1984), 55 N.R.
129 (F.C.A.
)
- Risak, Boris v. M.E.I.
(F.C.T.D.,
no. IMM-6087-93), Dubé,
October 24, 1994.Reported: Risak v.
Canada (Minister of Employment and Immigration) (1994), 25 Imm.
L.R. (2d) 267 (F.C.T.D.
)
- Roble, Abdi Burale v. M.E.I.
(F.C.A.,
no. A-1101-91), Heald, Stone,
McDonald, April 25, 1994.Reported: Roble v.
Canada (Minister of Employment and Immigration) (1994), 169 N.R.
125 (F.C.A.
)
- Saidi, Ahmed Abrar v. M.E.I.
(F.C.T.D.,
no. A-749-92), Wetston, September 14,
1993
- Sami, Sami Qowdon v. M.E.I.
(F.C.T.D.,
no. A-627-92), Simpson, June 1,
1994
- Sandy, Theresa Charmaine v.
M.C.I.
(F.C.T.D.
no. IMM-22-95), Reed, June 30,
1995
- Sanxhaku, Rexhep v. M.C.I.
(F.C.T.D.,
no. IMM-3086-99), Dawson,
June 9, 2000
- Satiacum: M.E.I.
v. Satiacum, Robert (F.C.A.,
no. A-554-87), Urie, Mahoney,
MacGuigan, June 16, 1989.Reported: Canada (Minister of
Employment and Immigration) v.
Satiacum (1989), 99 N.R.
171 (F.C.A.
)
- Silva, Donakanthi Sujatha v.
M.E.I.
(F.C.T.D.,
no. IMM-4584-93), Denault,
August 3, 1994
- Smirnov v. Canada (Secretary
of State), [1995] 1 F.C.
780 (T.D. )
- Smith: M.C.I.
v. Smith, Bob (F.C.T.D.,
no. IMM-3068-97), Lutfy,
December 7, 1998
- Soopramanien, Dorothy Anette v.
S.G.C. (F.C.T.D.,
no. A-1572-93), Pinard, October 5,
1993
- Starikov, Nicolai v.
M.C.I.
(F.C.T.D.,
no. IMM-1200-95, Pinard,
10 April 1996
- Surujpal, Khemraj v. M.E.I.
(F.C.A.,
no. A-515-84), Mahoney, Stone,
MacGuigan, April 25, 1985.Reported: Surujpal v.
Canada (Minister of Employment and Immigration) (1985), 60 N.R.
73 (F.C.A.
)
- Szucs, Sandor v. M.C.I.
(F.C.T.D.,
no. IMM-6248-99), Blais,
October 3, 2000
- Tarakhan, Ali v. M.C.I.
(F.C.T.D.,
no. IMM-1506-95), Denault,
November 10, 1995.Reported: Tarakhan v.
Canada (Minister of Citizenship and Immigration) (1995), 32 Imm.
L.R. (2d) 83 (F.C.T.D.
)
- Thabet, Marwan Youssef v.
M.C.I.
(F.C.A.,
no. A-20-96), Linden, McDonald,
Henry, May 11, 1998. Reported: Thabet v.
Canada (Minister of Citizenship and Immigration), [1998] 4 F.C.
21 (C.A. )
- Thakur, Ramesh Chander v.
M.E.I.
(F.C.T.D.,
no. 92-T-1665), Dubé,
June 18, 1993
- Velarde-Alvarez, Jorge Luis v.
S.S.C.
(F.C.T.D.,
no. IMM-194-94), McKeown,
February 9, 1995.Reported: Velarde-Alvarez v.
Canada (Secretary of State) (1995), 27 Imm.
L.R. (2d) 88 (F.C.T.D.
)
- Vickneswaramoorthy: M.C.I.
v. Vickneswaramoorthy, Poologam
(F.C.T.D.,
no. IMM-2634-96), Jerome,
October 2, 1997
- Vielma, Eduardo Enrique Pena v.
M.C.I.
(F.C.T.D.,
no. IMM-786-94), Rothstein,
November 10, 1994
- Villafranca: M.E.I.
v. Villafranca, Ignacio (F.C.A.,
no. A-69-90), Hugessen, Marceau,
Décary, December 18, 1992.Reported: Canada (Minister
of Employment and Immigration) v.
Villafranca (1992), 18 Imm.
L.R. (2d) 130 (F.C.A.
)
- Ward: Canada (Attorney General) v.
Ward, [1993] 2 S.C.R.
689, 103 D.L.R. (4th) 1, 20 Imm.
L.R. (2d) 85
- Williams, Debby v. S.S.C.
(F.C.T.D.,
no. IMM-4244-94), Reed, June 30,
1995
- Xue, Jian Fei v. M.C.I.
(F.C.T.D.,
no. IMM-4477-99), Rothstein,
October 23, 2000
- Yaguna, Jose Stalin Rojas v.
M.C.I.
(F.C.T.D.,
no. IMM-2468-94), Simpson,
May 25, 1995
- Yanahida, Gustavo Angel Castro v.
S.G.C. (F.C.T.D.,
no. IMM-6019-93), Richard,
October 13, 1994
- Ye, Xin Hao v. M.C.I.
(F.C.T.D.,
no. IMM-276-01), O'Keefe,
February 25, 2002; 2002 FCT
201
- Zaidan, Bilal v. S.S.C.
(F.C.T.D.,
no. A-1147-92), Noël,
June 16, 1994
- Zalzali v. Canada (Minister
of Employment and Immigration), [1991] 3 F.C.
605 (C.A. )
- Zhuravlvev, Anatoliy v.
M.C.I.
(F.C.T.D.,
no. IMM-3603-99), Pelletier,
April 14, 2000
- Zvonov, Sergei v. M.E.I.
(F.C.T.D.,
no. IMM-3030-93), Rouleau,
July 18, 1994.Reported: Zvonov v.
Canada (Minister of Employment and Immigration) (1994), 28 Imm.
L.R. (2d) 23 (F.C.T.D.)
- Canada (Attorney General) v.
Ward, [1993] 2 S.C.R.
689, 103 D.L.R. (4th) 1, 20 Imm.
L.R. (2d) 85.
- M.C.I.
v. Olah, Bernadett (F.C.T.D.,
no. IMM-2763-01), McKeown,
May 24, 2002; 2002 FCT
595. The Court noted that the relevant evidence to determine the issue
of state protection would include the documentary evidence and the personal
circumstances of the claimant.However, the claimant's own subjective
feelings on state protection would not be a relevant factor.
- Ward, ibid., at 709. In Madoui, Nidhal
Abderrah v. M.C.I.
(F.C.T.D.
no. IMM-660-96), Denault,
October 25, 1996, the claimant, who was from Algeria, had spent
some time in Italy before coming to Canada. The CRDD
held that the failure to claim refugee status in Italy showed a lack
of subjective fear.Before the Court, the claimant relied on statistics
showing that Italy rarely granted refugee status to claimants like him
to argue that he had no obligation to seek the protection of a state
which had shown itself unable to give it. The Court rejected the idea
of a parallel based on Ward, between a state's failure to protect
its citizens and a state's refusal to grant refugee status to certain
claimants. "Before asserting that he had no chance of success either
in seeking protection
[in Algeria
] or in claiming refugee
status from the Italian authorities, it was still necessary for the
[claimant] either to try do so, or as the Supreme Court stated in Ward,
to establish the reasonableness of his failure to seek such protection."
(at 2).
- Ward, supra, footnote 1, at 724 and 754.As
well, at 754, the Court stated that a valid claim against one country
of nationality will not fail if the claimant is denied protection (for
example, by being denied admittance) by another country of which he
or she is a national.
- Ward, supra, footnote 1, at 712 and 722.See
also Miranda, Elmer Edgar Valencia v.
M.C.I.
(F.C.T.D.
no. IMM-5882-93), Muldoon,
March 31, 1995, where the Court stated, at 23: "
the state's
inability to protect is a crucial element in determining whether the
refugee claim is objectively well-founded.
the tribunal conducted
a separate and distinct consideration of what should have been highly
interwoven elements." In Ahmed, Ali v.
M.C.I.
(F.C.T.D.,
no. IMM-2868-99), Pinard,
May 17, 2000, the Court noted that lack of state protection is relevant
after a nexus between the persecution suffered and a Convention ground
is established.See also Balogh: M.C.I.
v. Balogh, Jozsef (F.C.T.D.,
no. IMM-982-01), Heneghan,
November 6, 2001, where the Court stated that the issue of state protection
does not exist independently of the inquiry into Convention refugee
status.If there is no risk of persecution, the issue of state protection
does not arise.
- The Supreme Court of Canada essentially adopted
paragraphs 98, 99 and 100 of the UNHCR
Handbook as being an "entirely reasonable reading of the current
definition" (Ward, at 718). These paragraphs read as follows:
98. Being unable to avail himself of such protection
implies circumstances that are beyond the will of the person concerned.
There may, for example be a state of war, civil war or other grave
disturbance, which prevents the country of nationality from extending
protection or makes such protection ineffective.Protection by the
country of nationality may also have been denied to the applicant.Such
denial of protection may confirm or strengthen the applicant's fear
of persecution, and may indeed be an element of persecution.
99. What constitutes a refusal of protection must be determined
according to the circumstances of the case.If it appears that the
applicant has been denied services (e.g.,
refusal of a national passport or extension of its validity, or denial
of admittance to the home territory) normally accorded to his co-nationals,
this may constitute a refusal of protection within the definition.
100. The term unwilling refers to refugees who
refuse to accept the protection of the Government of the country of
their nationality. It is qualified by the phrase "owing to such fear".Where
a person is willing to avail himself of the protection of his home
country, such willingness would normally be incompatible with a claim
that he is outside that country "owing to well-founded fear of persecution".Whenever
the protection of the country of nationality is available, and there
is no ground based on well-founded fear for refusing it, the person
concerned is not in need of international protection and is not a
refugee.
- Ward, supra, footnote 1, at 720-721.
- Ward, supra, footnote 1, at 722.See also Sandy,
Theresa Charmaine v. M.C.I.
(F.C.T.D.
no. IMM-22-95), Reed, June 30,
1995, where the Court stated, at 2: "The presumption that persecution
will be likely and fear well founded only arises from the establishment
of a claimant's subjective fear, 'if there is an absence of state protection'
(see Ward
). That is, proof of the state's inability
to protect, or a presumption relating thereto, does not arise from a
finding that the [claimant] has a subjective fear. The need to prove
'state inability to protect' is an additional requirement, and it relates
to establishing the objective well-foundedness of the [claimant's] subjective
fear." See also Olah, supra, footnote 2.
- Ward, supra, footnote 1, at 722.
- Ward, supra, footnote 1, at 724-726.
- Ward, supra, footnote 1, at 726.
- Badran, Housam v.
M.C.I.
(F.C.T.D.,
no. IMM-2472-95), McKeown,
March 29, 1996, at 3-4.
- Ward, supra, footnote 1, at 724. This
principle was applied in Aramburo, Juan Carlos v.
M.C.I.
(F.C.T.D.,
no. IMM-6782-93), Cullen,
December 7, 1994 (re claimants from Argentina) and in Lerer,
Iakov v. M.C.I.
(F.C.T.D.,
no. IMM-7438-93), Cullen,
January 5, 1995 (re Jewish claimants from Russia).
- Peralta, Gloria Del Carmen v.
M.C.I.
(F.C.T.D.,
no. IMM-5451-01), Heneghan,
September 20, 2002; 2002 FCT
989.
- Ward, supra, footnote 1, at 724.See
also Kogan, Meri v. M.C.I.
(F.C.T.D.,
no. IMM-7282-93), Noël,
June 5, 1995, where the Court found that the CRDD
could reasonably conclude that the authorities had not refused to protect
the claimants given that the claimants had been unable to identify their
attackers and had delayed in filing a complaint.On the other hand, in
Medina, Blanca Patricia v.
M.C.I.
(F.C.T.D.,
no. IMM-2322-94), Simpson,
October 30, 1995, the Court held that the claimant's failure to
approach the state for protection was reasonable in that she had good
reasons to believe that her assailants were state security agents.See
also footnote 3. In Farias, Carlos Humbero Gonzales v.
M.C.I.
(F.C.T.D.,
IMM-3305-96), Lutfy, October 3, 1997, the Court stated that the CRDD
erred in not specifying what additional steps the claimants should have
taken to obtain state protection, especially when the agent of persecution
was the state. See also Quintero, Wilfredo Cruz v.
M.C.I.
(F.C.T.D.,
no. IMM-3447-96), Campbell,
June 6, 1997, where the CRDD
erred in criticizing the Honduran claimant for not seeking state protection,
where the agent of persecution was the National Investigations Authority
(DNI).
- Ward, supra footnote 1, at 724.
- D'Mello, Carol Shalini v.
M.C.I.
(F.C.T.D.,
no. IMM-1236-97), Gibson,
January 22, 1998.
- Some CRDD
panels have suggested that the requirement to present "clear and convincing"
evidence that the state is unable to protect has effectively raised
the standard of proof set in Adjei v.
Canada (Minister of Employment and Immigration), [1989] 2 F.C.
680 (C.A. ), i.e.,
"serious possibility". In Barkai, Alex v.
M.E.I.
(F.C.T.D.,
no. IMM-6249-93), Gibson,
September 27, 1994, counsel for the claimant raised this very issue
and requested that a question be certified.Gibson J. refused to certify
the suggested question and said "
I am satisfied that the analysis
of Mr. Justisce Laforest
[sic] in Ward is clear on its face."(at 12) The case law subsequent
to Ward continues to apply the Adjei test. For a useful
discussion of the meaning of the "clear and convincing" level of proof,
see Xue, Jian Fei v. M.C.I.
(F.C.T.D.,
no. IMM-4477-99), Rothstein,
October 23, 2000. In Nadeem, Choudhry Muhammad v.
M.C.I.
(F.C.T.D.,
no. IMM-6320-00), McKeown,
November 15, 2001, the Court held that the CRDD
did not err when it stated that the issue is not whether there is clear
and convincing evidence that the police would not be reasonably forthcoming
with a guarantee of effective protection but whether there is clear
and convincing evidence that the police would not be reasonably forthcoming
with serious efforts at protection. The onus is on the claimant to produce
clear and convincing evidence that the police would not provide protection,
not on the Board to provide proof that there will be state protection.
- Zalzali v.
Canada (Minister of Employment and Immigration), [1991] 3 F.C.
605 (C.A. ), at
614; Ward, supra, footnote 1, at 725.
- Ward, supra, footnote 1, at 725. For
a case where the CRDD
did not have proper regard for evidence of similarly situated individuals,
see Sanxhaku, Rexhep v. M.C.I.
(F.C.T.D.,
no. IMM-3086-99), Dawson,
June 9, 2000.
- Ward, supra, footnote 1, at 725.See
also section 6.1.11.of this Chapter.
- M.E.I.
v. Satiacum, Robert (F.C.A.,
no. A-554-87), Urie, Mahoney,
MacGuigan, June 16, 1989.Reported: Canada (Minister of
Employment and Immigration) v.
Satiacum (1989), 99 N.R.
171 (F.C.A.
).
- Ward, supra, footnote 1, at 725 (quoting
from Satiacum, at 176).See also M.E.I.
v. Hernandez-Ruiz, Maria
(F.C.A.,
no. A-20-92), Marceau, Létourneau,
Robertson, February 8, 1993; Bukhari, Zubair Hayder v.
M.E.I.
(F.C.T.D.,
no. IMM-6344-93), Richard,
November 18, 1994.
- M.C.I.
v. Kadenko, Ninal (F.C.A.,
no. A-388-95), Hugessen,
Décary, Chevalier, October 15, 1996.Reported: Canada
(Minister of Citizenship and Immigration) v.
Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.),
(application for leave to appeal dismissed by the S.C.C.
on May 8, 1997).See also M.C.I.
v. Smith, Bob (F.C.T.D.,
no. IMM-3068-97), Lutfy,
December 7, 1998, where the Court stated that "the quantum of clear
and convincing evidence required to rebut the presumption of a state's
ability to protect will depend on its democratic processes."
- Zalzali, supra, footnote 19.
- Zalzali, supra, footnote 19, at 615.Applied
in Sami, Sami Qowdon v. M.E.I.
(F.C.T.D.,
no. A-627-92), Simpson, June 1,
1994 (re Somaliland).See also Saidi, Ahmed Abrar v.
M.E.I.
(F.C.T.D.,
no. A-749-92), Wetston, September 14,
1993, at 3 (re IFA
n North Somalia).
- Chebli-Haj-Hassam, Atef v.
M.C.I.
(F.C.A.,
no. A-191-95), Marceau, MacGuigan,
Décary, May 28, 1996.Reported: Chebli-Haj-Hassam
v. Canada (Minister of Citizenship
and Immigration) (1996), 36 Imm.
L.R. (2d) 112 (F.C.A.
).
- Choker, Ali v.
S.G.C. (F.C.T.D.,
no. A-1345-92), Dubé,
July 30, 1993.See also section 6.1.11.of this Chapter.
- Zalzali, supra, footnote 19, at 615.
- M.E.I.
v. Villafranca, Ignacio (F.C.A.,
no. A-69-90), Hugessen, Marceau,
Décary, December 18, 1992.Reported: Canada (Minister
of Employment and Immigration) v.
Villafranca (1992), 18 Imm.
L.R. (2d) 130 (F.C.A.
). In Sanxhaku, Rexhep v.
M.C.I.
(F.C.T.D.,
no. IMM-3086-99), Dawson,
June 9, 2000, the Court noted that for Villafranca to apply,
one must find the state to be in effective control of its territory.
In Nduwimana, Thierive v.
M.C.I.
(F.C.T.D.,
no. IMM-1077-01), Lutfy,
July 23, 2002; 2002 FCT
812, the Court noted that the CRDD
introduced no novel test for state protection when, having concluded
that the claimant had not displaced the presumption of state protection
accoding to the principles in Villafranca, it noted that state
protection, even where it is not one hundred percent effective, must
be such that a claimant will not be exposed to a serious risk of persecution
if returned to the country of origin.
- Villafranca, ibid., at 132-133. (It should be
noted that the Court in Villafranca analyzed the issue of protection
in the context of a democratic country.Quaere whether the same analysis
would hold for a non-democratic country). It has been suggested that
Villafranca is bad law in light of Ward, see for example,
Waldman, L., Immigration Law and Practice, (Toronto: Butterworths
Canada Ltd., 1992) paragraph 8.88, however, in Velarde-Alvarez,
Jorge Luis v. S.S.C.
(F.C.T.D.,
no. IMM-194-94), McKeown,
February 9, 1995.Reported: Velarde-Alvarez v.
Canada (Secretary of State) (1995), 27 Imm.
L.R. (2d) 88 (F.C.T.D.
), the Court stated, at 92, that Villafranca dealt with the
problems of "unable" in a manner not inconsistent with Ward.Given
that Villafranca was decided before Ward, Mr. Justisce
McKeown, agreed to certify the following question:
May evidence satisfy the threshold test of "clear and
convincing confirmation" of a state's inability to protect the refugee
claimant where
1) there is no state of civil war, invasion or total collapse
of internal order, and where
2) the government is otherwise in effective
control of its territory, has military, police and civil authority
in place, and has made serious efforts to protect its citizens?
[Note: the Court of Appeal did not deal with this case]
In Karaseva, Tatiana v.
M.C.I.
(F.C.T.D.,
no. IMM-4683-96), Teitelbaum,
November 26, 1997, the claimant argued that Ward had overturned
Villafranca, whereas the Minister contended the opposite
relying on Starikov, Nicolai v.
M.C.I.
(F.C.T.D.,
no. IMM-1200-95, Pinard,
10 April 1996, where the court clearly considered that the principles
in Ward and Villafranca can apply simultaneously.
The Court did not specifically address these arguments but concluded
as follows:
[28] After considering the evidence, I am satisfied that
the applicants have not provided "clear and convincing proof" that
the State [Kazakhstan] would not be able to protect them. It does
not appear that the applicants could provide the police with sufficient
evidence to mount a successful investigation. The police must be given
adequate tools in order to investigate a crime and information as
to the criminals is a key tool. Furthermore, from a reading of the
transcript, I am satisfied the applicants did not take a concerned
interest in the reporting or findings of the police.
Similarly, in Badoeva, Manana v.
M.C.I.
(F.C.T.D.,
no. IMM-4925-99), Rouleau,
November 29, 2000, the Court noted that the victim must be capable
of providing the police with the information that is essential in
order for an investigation to be conducted. In Milev, Dane v.
M.C.I.
(F.C.T.D.,
no. IMM-1125-95), MacKay,
June 28, 1996, the Court noted, at 5, that "[t]he fact that the
state does not provide perfect protection is not, in itself, a basis
for determining that the state is unwilling or unable to offer reasonable
protection in the circumstances." In Guirgas, Nabil v.
M.C.I.
(F.C.T.D.,
no. IMM-2131-96), Jerome,
August 20, 1997, the claimant, a Coptic Christian, feared the Islamic
extremists. The Court noted that the state (Egypt) was intent on combating
the extremists and had acted in that regard. In Ye, Xin Hao v.
M.C.I.
(F.C.T.D.,
no. IMM-276-01), O'Keefe,
February 25, 2002; 2002 FCT
201, the Court upheld the CRDD
finding that the claimant, who had not complained to the anti-corruption
office set up by the government to deal with complaints about corrupt
officials, had not rebutted the presumption of the availability of
state protection.
- Bobrik, Iouri v.
M.C.I.
(F.C.T.D.,
no. IMM-5519-93), Tremblay-Lamer,
September 16, 1994, at 4.See also Howard-Dejo, Luis Fern v.
M.C.I.
(F.C.T.D.,
no. A-1179-92), Noël,
February 2, 1995, where the Court noted that the evidence in the
case did not demonstrate merely that the state (Peru) was not always
successful in protecting the targets of terrorism but that the authorities
were unable to offer protection proportionate to the threat.Also, Freiberg,
Valentina v. S.S.C.
(F.C.T.D.,
no. IMM-3419-93), Tremblay-Lamer,
May 27, 1994, where the Court concluded that the claimant "related
two incidents in which she filed complaints with the police [in Israel]
and in which state protection did not materialize
this evidence
suffices to justify the [claimant's] reluctance to seek protection from
the state." (at 6-7). Freiberg was not followed in Fainshtain,
Galine v. M.C.I.
(F.C.T.D.,
no. IMM-1012-95), Muldoon,
June 17, 1996, where Muldoon noted, at 5-6, that the case was distinguishable
on its facts. "In that case, the police refused to intervene.Here,
the police offered assistance. It was the principal [claimant] who either
did not avail herself of those offers of assistance, or prevented the
State from according her its protection by either not giving State authorities
details of her plight, or by not reporting her plight to State authorities."
Other cases that appear to take a broad view of protection are Alli,
Lukman v. M.C.I.
(F.C.T.D.,
no. IMM-1984-01, O'Keefe,
April 26, 2002; 2002 FCT
479, a case dealing with ritual violence in Nigeria, where the Court
stated that there is a difference between the state offering protection
and the state engaging in police investigation and prosecution, and
Balogh, Rudolf v. M.C.I.
(F.C.T.D.,
no. IMM-6193-00), Lemieux,
July 22, 2002; 2002 FCT
809, where the Court said that the willingness to address the situation
of the Roma minority in Hungary cannot be equated to adequate state
protection. For a contrasting analysis of state protection of Roma in
Hungary, see Horvath, Szuzsanna v.
M.C.I.
(F.C.T.D.,
no. IMM-4001-01, Blanchard,
November 22, 2002; 2002 FCT
1206.
- Smirnov v.
Canada (Secretary of State), [1995] 1 F.C.
780 (T.D. ), at
786.See also Ferguson, Gloria v.
M.C.I.
(F.C.T.D.,
no. IMM-5927-01), Noël,
November 22, 2002: 2002 FCT
1212, where the Court stated that "[r]eality has to prevail and a test
of whether the system is adequate considering the circumstances of the
case should be applied." For a case where the facts established that
the attacks were not random but targeted, see Badran, supra,
footnote 12.Olah, supra, footnote 2, is another case that favours
the approach in Smirnov. The Court noted that the protection
the claimant received from the acts of her abusive husband in Hungary
was not much different than the protection she would have received in
Canada.
- James, Cherrie Ann Louanne v.
M.C.I.
(F.C.T.D.,
no. IMM-3352-97), Wetston,
June 1, 1998.Reported: James v.
Canada (Minister of Citizenship and Immigration) (1998), 44 Imm.
L.R. (2d) 16 (F.C.T.D.).
- Zhuravlvev, Anatoliy v.
M.C.I.
(F.C.T.D.,
no. IMM-3603-99), Pelletier,
April 14, 2000.
- Thakur, Ramesh Chander v.
M.E.I.
(F.C.T.D.,
no. 92-T-1665), Dubé,
June 18, 1993.
- Risak, Boris v.
M.E.I.
(F.C.T.D.,
no. IMM-6087-93), Dubé,
October 24, 1994.Reported: Risak v.
Canada (Minister of Employment and Immigration) (1994), 25 Imm.
L.R. (2d) 267 (F.C.T.D.
), at 270. In Mendoza, Elizabeth Aurora Hauayek v.
M.C.I.
(F.C.T.D.,
no. IMM-2997-94), Muldoon,
January 24, 1996, at 6, the Court stated the test as follows: "It
matters not that there were available human rights organizations [in
Venezuela] to whom the [claimant] could have turned for help. The test
is whether the [claimant] can look to his/her own government for protection."
The same approach was followed in Cuffy, Loferne Pauline v.
M.C.I.
(F.C.T.D.,
no. IMM-3135-95), McKeown,
October 16, 1996, at 3-4.In Mann, Satinder Pal Singh v.
M.C.I.
(F.C.T.D.,
no. IMM-6554-00), Tremblay-Lamer,
September 6, 2001, the Court was critical of the Board's reasoning that
would require the claimant to accept persecution from the police and
wait to be falsely accused in order to benefit form the Court system
and be exonerated years later. In Molnar, Elek v.
M.C.I.
(F.C.T.D.,
no. IMM-285-02, Tremblay-Lamer,
October 16, 2002; 2002 FCT
1081, the Court held that the Board erred in imposing on the claimant
the burden of seeking redress from agencies other than the police. In
contrast, in Nagy, Laszlo v.
M.C.I.
(F.C.T.D.,
no. IMM-1467-01), Simpson,
March 14, 2002; 2002 FCT
281, the Court agreed with the CRDD
that the claimant should have approached the "Minorities Ombudsman"
or complained about the police to the prosecutor's investigative office.
In Ivachtchenko, Artem v.
M.C.I.
(F.C.T.D.,
no. IMM-4964-01), Lemieux,
December 12, 2001; 2002 FCT
1291, the Court held that the CRDD
erred in holding that the availability of a civil suit was an alternative
to criminal prosecution in a case involving criminal assault.
- See for example Varga, Attila Csaba v.
M.C.I.
(F.C.T.D.,
no. IMM-3363-00), McKeown,
May 18, 2001, where the Court held that a single incident where a police
officer tells a claimant he got what he deserved would not be sufficient
to show clear and convincing evidence that state protection was not
available.
- M.C.I.
v. Kadenko, Ninal (F.C.A.),
supra, footnote 24.See also Levkovicz, Ilia v.
S.S.C.
(F.C.T.D.,
no. IMM-599-94), Nadon, March 13,
1995; Vielma, Eduardo Enrique Pena v.
M.C.I.
(F.C.T.D.,
no. IMM-786-94), Rothstein,
November 10, 1994, which deals with a situation where police were
involved in actions against journalists (like the claimant) and the
Court stated: "
it is at least questionable which state authorities
the claimant could ask to protect him
" in those circumstances
(at 3); and Machado, Hugo Ricardo Gonzalez v.
M.C.I.
(F.C.T.D.,
no. IMM-7155-93), Rothstein,
October 27, 1994.
- See for example: Fernandez, Laura v.
M.E.I.
(F.C.T.D.,
no. IMM-4591-93), Wetston,
July 19, 1994, at 2; Contreras, Carlos Fabian Vassallo v.
M.C.I.
(F.C.T.D.,
no. IMM-2555-94), MacKay,
May 19, 1995.Reported: Contreras v.
Canada (Minister of Citizenship and Immigration) (1996), 36 Imm.
L.R. (2d) 75 (F.C.T.D.
); Sandy, supra, footnote 8, at 3.
- Szucs, Sandor v.
M.C.I.
(F.C.T.D.,
no. IMM-6248-99), Blais,
October 3, 2000.
- El Khatib, Naif v.
M.C.I.
(F.C.T.D.,
no. IMM-5182-93), McKeown,
September 27, 1994.
- El Khatib, ibid., at 2. The Court agreed
to certify the following question:
On a claim to Convention refugee status by a stateless person,
is the "well-foundedness" analysis set out by the Supreme Court of
Canada in [Ward] applicable, based as it is on the availability
of state protection, or is it only applicable if the claimant is a
citizen of the country in which he or she fears persecution?
<>The Court of Appeal, in dismissing the appeal in El Khatib,
declined to deal with the certified question because it was not determinative
of the appeal.See M.C.I.
v. El Khatib, Naif (F.C.A.,
no. A-592-94), Strayer, Robertson,
McDonald, June 20, 1996. In Tarakhan, Ali v.
M.C.I.
(F.C.T.D.,
no. IMM-1506-95), Denault,
November 10, 1995.Reported: Tarakhan v.
Canada (Minister of Citizenship and Immigration) (1995), 32 Imm.
L.R. (2d) 83 (F.C.T.D.
), at 89, the Court held that where the claim is that of a stateless
person, the claimant need only show that he or she is unable, or by
reason of a well-founded fear of persecution, is unwilling to return
to the country of former habitual residence. The claimant does not have
to prove that the authorities of that country are unable or unwilling
to protect him or her. In Pachkov, Stanislav v.
M.C.I.
(F.C.T.D.,
no. IMM-2340-98), Teitelbaum,
January 8, 1999. Reported: Pachkov v.
Canada (Minister of Citizenship and Immigration) (1999), 49 Imm.
L.R. (2d) 55 (F.C.T.D.
), the Court held that the CRDD
erred in imposing on the claimant, who was a stateless person, a duty
to refute the presumption of state protection.See also Elastal,
Mousa Hamed v. M.C.I.
(F.C.T.D.,
no. IMM-3425-97), Muldoon,
March 10, 1999, to the same effect, which cited the Court of Appeal
decision in Thabet, infra, footnote 46.
- Giatch, Stanislav v.
M.E.I.
(F.C.T.D.,
no. IMM-3438-93), Gibson,
March 22, 1994; Zaidan, Bilal v.
S.S.C.
(F.C.T.D.,
no. A-1147-92), Noël,
June 16, 1994; Zvonov, Sergei v.
M.E.I.
(F.C.T.D.,
no. IMM-3030-93), Rouleau,
July 18, 1994.Reported: Zvonov v.
Canada (Minister of Employment and Immigration) (1994), 28 Imm.
L.R. (2d) 23 (F.C.T.D.
); Falberg, Victor v. M.C.I.
(F.C.T.D.,
no. IMM-328-94), Richard,
April 19, 1995. This issue was further confused by the decision
in M.C.I.
v. Vickneswaramoorthy, Poologam
(F.C.T.D.,
no. IMM-2634-96), Jerome,
October 2, 1997, where the Court suggested that the same standard
of proof to demonstrate the state's inability to protect persecuted
individuals applies to stateless persons as to those with a country
of nationality.
- Nizar v.
M.C.I.
(F.C.T.D.,
no. A-1-92), Reed, January 10,
1996, at 5.
- Thabet, Marwan Youssef v.
M.C.I.
(F.C.A.,
no. A-20-96), Linden, McDonald,
Henry, May 11, 1998. Reported: Thabet v.
Canada (Minister of Citizenship and Immigration), [1998] 4 F.C.
21 (C.A.).
- See Chapter 2, section 2.2.2.
- The examples are not exhaustive.
- Mendivil, Luis Altamirano v.
S.S.C.
(F.C.A.,
no. A-132-93), Marceau, Stone,
Desjardins, February 7, 1994.Reported: Mendivil v.
Canada (Secretary of State) (1994), 23 Imm.
L.R. (2d) 225 (F.C.A.
), at 232, per Desjardins J.A. In Oblitas, Jorge v.
M.C.I.
(F.C.T.D.,
no. IMM-2489-94), Muldoon,
February 2, 1995, the Court goes so far as to say, at 9, that while
the situation in Peru is not quite one of state breakdown (as in Zalzali,
supra, footnote 19), it comes close. In the Court's view, the claimants
had proven that state protection was not reasonably forthcoming.
- Mendivil, ibid., at 230. The case involved
a claimant who had been specifically targeted by the Shining Path (Sendero
Luminoso) in Peru. In Yanahida, Gustavo Angel Castro v.
S.G.C. (F.C.T.D.,
no. IMM-6019-93), Richard,
October 13, 1994, on the other hand, the claimant failed to present
"clear and convincing proof" that the state (Peru) was unable to protect
him. The evidence of the claimant was that the protection of ordinary
citizens was the lowest priority. The Court held, at 4, that "[i]n the
absence of any additional evidence, I consider that the claimant has
not discharged his burden." (at 4) The state's obligation to provide
private (24-hour) protection to its citizens was considered, and found
not to be determinative, in Baldizon-Ortegaray, German Jose v.
M.E.I.
(F.C.T.D.,
no. 92-T-1933), May 7,
1993.Reported: Baldizon-Ortegaray v.
Canada (Minister of Employment and Immigration) (1993), 20 Imm.
L.R. (2d) 307 (F.C.T.D.
), a pre-Ward case, at 311.See also Velarde-Alvarez,
supra, footnote 31, at 91; Yaguna, Jose Stalin Rojas v.
M.C.I.
(F.C.T.D.,
no. IMM-2468-94), Simpson,
May 25, 1995, at 5; and Petit, Juan Daniel Ayllon v.
M.C.I.
(F.C.T.D.,
no. A-1197-92), Rouleau,
January 12, 1996, at 6.
- M.E.I.
v. Johan, Stephen (F.C.T.D.,
no. T-1389-92), Denault,
February 9, 1993; Callejas, Ana Lucretia v.
M.E.I.
(F.C.T.D.,
no. A-48-93), Gibson, February 1,
1994.Reported: Callejas v.
Canada (Minister of Employment and Immigration) (1994), 23 Imm.
L.R. (2d) 253 (F.C.T.D.
), at 258-260; Kraitman, Vadim v.
S.S.C.
(F.C.T.D.,
no. IMM-88-94), Teitelbaum,
July 5, 1994.Reported: Kraitman v.
Canada (Secretary of State) (1994), 27 Imm.
L.R. (2d) 283 (F.C.T.D.
), where the evidence indicated that the police in Ukraine refused to
investigate complaints made by Jews. The Court concluded, at 13, that
"[t]his is clear indication that Jews were not being offered the protection
of the state, that is, Jews could not go to the police for protection.
The police may have the ability to offer protection but where it chooses
not to, this is equivalent to saying it is unable to provide protection
to the [claimants]." In another case dealing with a claimant from Colombia,
Bohorquez, Gabriel Enriquez v.
M.C.I.
(F.C.T.D.,
no. IMM-7078-93), McGillis,
October 6, 1994, the Court found the conclusion of the CRDD
that the claimant had failed to provide "clear and convincing proof"
unreasonable: "The credible and uncontradicted evidence of the [claimant]
established that he sought the help of various police and enforcement
agencies on fifteen or twenty occasions. The [claimant] was repeatedly
told that nothing could be done to protect him and no investigation
into the source of the threats or the attempted assassination was ever
conducted." (at 3)
- Zalzali, supra, footnote 19.However, for the
principle in Zalzali to apply, the claimant must demonstrate
a prospective risk of persecution, thus, in Roble, Abdi Burale v.
M.E.I.
(F.C.A.,
no. A-1101-91), Heald, Stone,
McDonald, April 25, 1994.Reported: Roble v.
Canada (Minister of Employment and Immigration) (1994), 169 N.R.
125 (F.C.A.
), where the agent of persecution (the NSS in Somalia) was no longer
a factor, the Court held that "
the inability of the state to
protect the [claimant] is not, in itself, a sufficient basis for his
claim." (at 130).
- Ward; supra, footnote 1, Surujpal,
Khemraj v. M.E.I.
(F.C.A.,
no. A-515-84), Mahoney, Stone,
MacGuigan, April 25, 1985.Reported: Surujpal v.
Canada (Minister of Employment and Immigration) (1985), 60 N.R.
73 (F.C.A.
); Rajudeen, Zahirdeen v.
M.E.I.
(F.C.A.,
no. A-1779-93), Heald, Hugessen,
Stone (concurring), July 4, 1984.Reported: Rajudeen v.
Canada (Minister of Employment and Immigration) (1984), 55 N.R.
129 (F.C.A.
). In a case involving Peru, Gonzales, Abel Guillermo Mayorga v.
M.E.I.
(F.C.T.D.,
no. IMM-117-93), Noël,
February 25, 1994, the Court noted, at 3, that the evidence showed
that the army had been infiltrated by the terrorists and that it was
powerless against their attacks. In the circumstances, it was unreasonable
for the CRDD
to conclude "
that the [claimant] was likely to be given adequate
protection."
- Silva, Donakanthi Sujatha v.
M.E.I.
(F.C.T.D.,
no. IMM-4584-93), Denault,
August 3, 1994, at 2-3.
- Soopramanien, Dorothy Anette v.
S.G.C. (F.C.T.D.,
no. A-1572-93), Pinard, October 5,
1993, at 2 (re Seychelles).
- Barabhuiyan, Abdullah Al Mamun v.
M.E.I.
(F.C.T.D.,
no. A-998-92), Tremblay-Lamer,
November 30, 1993 (re Bangladesh).
- Manorath, Rahonie v.
M.C.I.
(F.C.T.D.,
no. IMM-2369-94), Cullen,
January 26, 1995, at 6.But see Williams, Debby v.
S.S.C.
(F.C.T.D.,
no. IMM-4244-94), Reed, June 30,
1995.
- Levitina (Chikhovtseva), Tatiana v.
M.C.I.
(F.C.T.D.,
no. IMM-6591-93), Noël,
January 27, 1995, at 3. See also Cho, Soon Ja v.
M.C.I.
(F.C.T.D.,
no. IMM-4029-99), Gibson,
August 9, 2000.
- Annan v.
Canada (Minister of Citizenship and Immigration), [1995] 3 F.C.
25 (T.D.), at 30.
- Mallam, Sanni Mohammad v.
M.C.I.(F.C.T.D.,
no. IMM-2780-96), Pinard,
June 30, 1997. Contrast this with Alli, supra, footnote
32, where the Court stated that a finding by the CRDD
that the police do investigate and prosecute incidents of ritual violence
was different from the police offering protection to persons such as
the claimant.
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